United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, the motion to
vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255 was referred to the undersigned United
States magistrate judge for case management, including
findings and a recommended disposition. As detailed herein,
the motion should be DENIED.
Matthew Norman Simpson was convicted of conspiring to commit
wire and mail fraud (Count 1), aiding and abetting the
transmission of spam (Count 2), obstructing justice (Count
4), and registering a false domain name (Count 7). All
convictions except the one for false registration were
affirmed on appeal, United States v. Simpson, 741
F.3d 539, 546 (5th Cir. 2014), and on remand he was
resentenced to an aggregate term of 480 months-consecutive
240-month terms on Counts 1 and 4 and a concurrent 36-month
term on Count 2. United States v. Simpson, 796 F.3d
548 (5th Cir. 2015), cert. denied, 136 S.Ct. 920 (2016).
subsequently filed this timely, pro se Section 2255
motion, asserting ineffective assistance of counsel. Doc.
2. The Government filed a response in opposition and
Simpson filed a reply. Doc. 11; Doc. 12. Upon review, the
Court concludes that Simpson has failed in his burden to
demonstrate that counsel was ineffective. Thus, his Section
2255 motion fails.
establish ineffective assistance of counsel, a movant must
demonstrate counsel's performance was deficient and that
the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Failure to establish either deficient performance or
prejudice defeats the claim. Id. at 697.
prove the deficient performance prong of the
Strickland test, movant must show that counsel made
errors so serious that he or she was not functioning as the
counsel guaranteed by the Sixth Amendment. Id. at
687. The proper measure of attorney performance is
reasonableness under prevailing professional norms.
Id. at 688. “Judicial scrutiny of
counsel's performance must be highly deferential.”
Id. at 689. There is a strong presumption that
counsel's conduct fell within the wide range of
reasonable professional assistance. Id.
prove prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable
probability is a “probability sufficient to undermine
confidence in the outcome.” Id. Thus, the
question under Strickland is “whether it is
‘reasonably likely' the result would have been
different.” Harrington v. Richter, 562 U.S.
86, 111-12 (2011) (quoting Strickland, 466 U.S. at
693, 697). However, “[t]he likelihood of a different
result must be substantial, not just conceivable.”
Richter, 562 U.S. at 112.
Obstruction of Justice (Count 4)
Failure to call lay and expert witnesses
asserts that counsel rendered ineffective assistance by
failing to call certain lay or expert witnesses to oppose the
Government's evidence of obstruction of justice. Simpson
identifies Chris Stigler,  the company's programmer, as a
witness who would have impeached co-conspirator Alicia
Cargill Smallwood's testimony that Simpson “told
her to destroy [data].” Doc. 2 at 5. He
contends that Stigler would have testified that Smallwood did
not have the requisite “access to delete any
data.” Doc. 12 at 3. Simpson also asserts that
an unidentified expert witness could have established that
the hard drive, which he was accused of destroying or
altering, was actually unencrypted and did not contain
“any data remotely connected with the case.”
Doc. 2 at 3. He surmises that such an expert could
have explained at a minimum the encryption and contents of
the hard drive involved in the obstruction of justice charge.
Doc. 2 at 3-4. In addition, Simpson maintains that
the affidavit of Dan James, which he received after drafting
his Section 2255 motion, is “newly discovered
evidence.” Doc. 2 at 16. In his affidavit,
James, a possible computer forensic expert, affirms the hard
drive contained data, including deleted files, which was
neither encrypted nor “wiped” or damaged.
Doc. 2 at 19.
has failed in the basic requirement that he establish the
proposed witnesses were available, would have testified, and
their testimony would have been favorable to him. See
United States v. Fields, 761 F.3d 443, 461 (5th Cir.
2014) (to satisfy Strickland prejudice based on
failure to call a lay or expert witness, the movant must name
the witness, demonstrate the witness's availability and
willingness to testify, identify the witness's proposed
testimony, and show that the testimony would have been
favorable to a particular defense (citing Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009))).
Contrary to his reply argument-that he “specifically
set forth the content of proposed testimony, and demonstrated
how that testimony directly contradicted the Government's
bald assertions at trial, ” Doc. 12 at
2-Simpson's allegations are “largely
speculative.” Fields, 761 F.3d at 461. Indeed,
Simpson only mentions by name one lay witness and one
possible expert witness and only generally summarizes the
substance of their hypothetical testimony. This is plainly
insufficient. See Day, 566 F.3d at 538
(finding uncalled expert witness's affidavit insufficient
because it only countered the expert opinion presented at
trial and did not address that he was available to testify at
trial, that he would have done so, and that he would have
testified in accord with the opinions and conclusions he
states in his affidavit); Sayre v. Anderson, 238
F.3d 631, 636 (5th Cir. 2001) (denying uncalled-witnesses
claim due to failure to present affidavits from missing
witnesses). In addition, considering the extensive evidence
presented at trial, Simpson has failed to demonstrate
“a reasonable probability” that the testimony of
any proposed lay or expert witnesses, if presented at trial,
would have changed the jury's conclusion. See
Day, 566 F.3d at 538. Simpson's obstruction of
justice “conviction was based on Simpson's deletion
of his electronic communication with Faulkner after search
warrants for Faulkner's home and offices were
executed.” Simpson, 741 F.3d at 551. While
Simpson eventually provided the drive from which the
communication had been deleted, the FBI agent testified
“it had no usable data” and “was as if the
data had been ‘splashed all over the drive,'
supporting the inference that Simpson did more than simply
remove emails from his inbox.” Id. at 552.
That notwithstanding, the United States Court of Appeals for
the Fifth Circuit concluded that: (1) Simpson's admission
that he deleted emails after learning of the executed search
warrant, and (2) his instruction to Smallwood to do the same
on her computer “provided sufficient evidence of [his]
intent to interfere with the administration of justice”
to support his obstruction-of-justice
conviction. Id. On this record-especially
Stigler's admissions-any testimony that Smallwood did not
have the necessary “access to delete any data”
would not have impacted the outcome of the case. The same is
true as to the impact, or lack thereof, of James' or any
other expert's purported testimony about encryption, the
contents of the hard drive, and that the hard drive contained
unencrypted data. Therefore, this claim fails.
Failure to disclose content ...