United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOCS. 17 & 29)
CHRISTINA REISS, Chief District Judge.
This matter came before the court for a review of the Magistrate Judge's November 25, 2014 Report and Recommendation ("R & R"). Defendant Karen Brisson has filed a motion pursuant to 28 U.S.C. § 2255 that seeks to vacate, set aside, or correct a judgment and sentence imposed by this court on the grounds that the 24 month sentence she received was based upon factual errors which were not challenged by her attorney because she received ineffective assistance of counsel. (Doc. 17.) The government opposed the motion. (Doc. 19.)
Ms. Brisson has filed a timely objection to the R & R (Doc. 30), contending that "[t]he Magistrate[']s report is contrary to law and did not allow proper fact-finding procedures, and there are conclusions that are erroneous." (Doc. 30 at 2.) She seeks a hearing so that she may contest certain information set forth in the Presentence Report ("PSR") which the court relied upon in sentencing her, to correct certain alleged misstatements made by her defense counsel, and to establish that she received constitutionally deficient advice regarding her appellate rights.
A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Am, 474 U.S. 140, 150 (1985).
Ms. Brisson's objection to the R & R focusses on the same issues she raised in her § 2255 petition: factual errors at sentencing allegedly caused by her counsel's ineffective assistance and her counsel's deficient advice regarding a direct appeal. In his thirty-page R & R, the Magistrate Judge carefully reviewed the factual record and evaluated Ms. Brisson's claims and concluded that no hearing was necessary because "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" 28 U.S.C. § 2255. The court reviews this conclusion de novo.
Ms. Brisson contends that the court relied upon factual errors in sentencing her based upon an erroneous chronology of events set forth in the PSR. At Ms. Brisson's change of plea hearing, the court explained how the PSR would be used by the court at sentencing, explained that there would be an opportunity to challenge the facts in the report and the guidelines applications and a process by which the probation officer would attempt to resolve those disputes with the parties. The court explained that if there were contested facts at sentencing, the court would hold a trial of the facts, typically with witnesses testifying but sometimes with the attorneys simply making arguments. The court advised Ms. Brisson that it would resolve the factual disputes and advise the parties of the court's ruling. The court explained that it would follow this same procedure with regard to any guideline challenges. Ms. Brisson expressed no confusion or concern with this process.
Thereafter, the parties engaged in negotiations to resolve a factual dispute regarding the Town of Weybridge's loss as a result of Ms. Brisson's embezzlement. The government initially took the position that the total loss was in excess of $450, 000. Ms. Brisson's counsel was able to persuade the government to stipulate to a loss of $400, 000 which resulted in a lower guideline even though the parties agreed that the amount of restitution owed by Ms. Brisson was $431, 812.06. This resolution process resulted in a guideline range of 24 to 30 months as opposed to 30 to 37 months which would have resulted from a loss in excess of $400, 000. The final draft of the PSR reflects the parties' stipulation to a $400, 000 loss.
In his R & R, the Magistrate Judge accurately observes that Ms. Brisson, through her counsel, filed a sentencing memorandum that indicated that Ms. Brisson had "no factual or legal objection to the PSR[.]" (Doc. 21-1 at 1.) Ms. Brisson does not challenge her counsel's representation that he reviewed both the draft and final PSR with her prior to sentencing and that her response to his sentencing memorandum was "thank you you did a great job and it is very obvious you put alot of time and thought into helping me. [I] truly appreciate it." (Doc. 25-4 at 1.) At the time, Ms. Brisson was not incarcerated and presumably had access to the information that she now asserts would demonstrate that the PSR's chronology of events was inaccurate.
At sentencing, the court asked Ms. Brisson whether she had reviewed the PSR and she advised that she had. In response to the court's question, she specifically advised that there were no factual errors in the PSR. Her counsel agreed with this statement as did the government's attorney. No party objected when the court adopted the PSR as its findings of fact. Ms. Brisson was present when both her counsel and the government's attorney advised the court that there would be no witnesses.
In her statement to the court, Ms. Brisson did not indicate any errors in the PSR or in her counsel's representations to the court. She remained coherent, did not request to take a break, and she did not disclose any severe duress that prevented her from understanding the proceedings or the court's questions.
In her § 2255 petition, Ms. Brisson contends that she can now prove that the PSR contained factual errors, that her counsel misrepresented the facts, and that the court relied on these factual errors in sentencing. She does not, however, provide any reasonable explanation for her silence about these matters at sentencing. She does not claim she was deprived of an opportunity to challenge the facts at sentencing and she also does not make a claim of actual innocence. She does not even claim that her counsel persuaded her to forego a challenge of the facts as a litigation strategy. Although she claims that she was under considerable stress, she does not claim she was incompetent or otherwise incapable of assisting in her own defense.
If an evidentiary hearing is held with regard to her § 2255 petition, Ms. Brisson claims that she will be able to establish that her last act of embezzlement on September 4, 2012 occurred before the Town of Weybridge received a specific complaint that she had taken between $8, 000 and $9, 000 from the Town and that she first learned of the theft complaint on September 7 and prior to that she did not have "any indication at all of theft." (Doc. 17-3 at 1-2.) She further claims that she can establish that the PSR incorrectly states that, in August of 2012, the Town's selectboard discussed a recommendation from the Vermont League of Cities and Towns ("VLCT") that it conduct an external audit of its financial records (with Ms. Brisson in attendance and taking notes) when she can prove the discussion actually took place in September or October. She believes these facts are critical to the court's sentence because the court noted that her last act of embezzlement occurred "after all of this stuff had gotten moving" and noted that it was "incredible" she was cutting a check to herself on September 4, 2012, when "it's clear that an audit is coming." (Tr. 6, 22.)
Accepting Ms. Brisson's version of the facts as true, according to Ms. Brisson, as early as March of 2012 (the PSR states the meeting took place in May 2012) the Town's selectboard had begun discussing an audit. Prior to March at least one selectboard member had contemplated an audit of the Town's accounts in response to a rash of embezzlements reported in the press. The court specifically asked whether Ms. Brisson came forward on her own to disclose her embezzlement in response to media coverage of similar crimes (as the court initially mistakenly believed) or whether the PSR was correct that Ms. Brisson's disclosure of her embezzlement occurred only after an external audit was underway. Ms. Brisson's counsel accurately and appropriately advised the court that Ms. Brisson's disclosure was made only after an external audit was ordered.
The court did not find that Ms. Brisson had been accused of theft prior to her last act of embezzlement. Ms. Brisson is simply mistaken on this point. However, it would been somewhat remarkable for Ms. Brisson to claim at sentencing (as she does now) that, on September 4th, she lacked "any indication at all of the theft" when she had been embezzling from the Town for years. Had she ...