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United States v. Mullen

United States District Court, D. Maryland, Southern Division

January 23, 2018



          Paul W. Grimm United States District Judge

         Terrence Mullen was charged in a one-count indictment with interstate transportation of property taken by fraud, in violation of 18 U.S.C. § 2314. ECF No. 1. After initial representation by the Federal Public Defender's Office, Mullen retained defense attorney Russell Neverdon. ECF No. 20. On October 5, 2015, he pled guilty to the charge pursuant to a Plea Agreement that he signed and the Government filed on that same date, along with a Sealed Supplement. ECF Nos. 26, 27, 28. The parties agreed to an adjusted offense level of 22, which was reduced to 20 at sentencing based on a change to the United States Sentencing Guidelines (“USSG or Guidelines”). Sentencing Tr. 4, ECF No. 53. Further, they agreed that “the government would agree to a two-level reduction for acceptance of responsibility under Section 3E1.1A, plus an additional one point under 3E1.1B, ” which would reduce the adjusted offense level to 17 under the amended USSG. Id.

         On March 25, 2016, I gave Mullen two points for acceptance of responsibility, rather than three, because the Government declined to make a motion to allow him the additional one point reduction pursuant to USSG § 3E 1.1(b). I calculated Mullen's adjusted offense level to be 18 and his criminal history to be category VI. Id. at 48. I sentenced Mullen to be imprisoned for a total term of 63 months, to begin on May 16, 2016. Jmt., ECF No. 47. I also imposed a supervised release term of three years and ordered Mullen to pay restitution in the amount of $414, 682.89. Id.

         Now pending is Mullen's Motion under 28 U.S.C. § 2255 to Vacate Set Aside, or Correct Sentence, ECF No. 55, accompanied by a Memorandum in Support, ECF No. 55-1. The Government filed an Opposition, ECF No. 62, and Mullen filed a Reply, ECF No. 70. He claims that his trial counsel, Russell Neverdon, was ineffective for failing to seek reductions in his adjusted offense level for mental and emotional conditions, pursuant to USSG § 5H1.3; for diminished capacity, pursuant to USSG § 5K2.13; and for overstatement of his criminal history, pursuant to USSG § 4A1.3. Def.'s Mem. 1. Yet, even assuming that Mullen's counsel's performance was not objectively reasonable, Mullen has not shown, with regard to these alleged shortcomings, “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 694 (1984). Accordingly, I will deny his § 2255 Motion as to these claims.[2] As for his claim that his attorney “had a conflict of interest due to unpaid professional fees, ” while I agree that there was a conflict, I do not find that the conflict caused the attorney not to pursue a strategy that was both objectively reasonable and “clearly suggested by the circumstances.” See Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), aff'd, 535 U.S. 162 (2002). Therefore, I will deny his § 2255 Motion as to that claim as well.


         Mullen's sentencing was set for February 17, 2016, ECF No. 29, but at Neverdon's request, submitted the day before sentencing, the Court continued the sentencing to March 25, 2016. ECF Nos. 37, 38. Neverdon requested a second continuance to allow his client to undergo a psychological evaluation, once again filing the request the day before sentencing. ECF No. 41. I denied the request. ECF No. 43.

         The Amended Presentence Investigation Report noted:

According to his therapist, Dr. Peter DeNigris, the defendant has been attending weekly individual counseling sessions since October 24, 2015. Dr. DeNigris advised he never conducted a full evaluation of the defendant; however, he assessed him as being Bipolar. This diagnosis was later confirmed by Dr. Daniel Cowan, upon the defendant recently receiving a psychiatric evaluation. At this time, we have not obtained a copy of the psychiatric evaluation. However, according to Dr. DeNigris, the defendant was also prescribed Depakote for his condition.

PSR ¶ 52, ECF No. 34. Thus, Neverdon was aware of Mullen's disorder prior to sentencing. Yet he did not argue for a reduction in his client's adjusted offense level under USSG § 5H1.3 for a mental or emotional condition, or under USSG § 5K2.13 for diminished capacity. And, Dr. Cowan's psychiatric evaluation itself was not a part of the sentencing record. Nor had Mullen obtained the psychological evaluation he wished to present to the Court.

         As the Government accurately noted, Mullen's mental health nonetheless was considered at length at sentencing:

[T]he Court and defense counsel . . . devoted significant time and discussion at the sentencing hearing to [Mullen's] mental health. [Mullen's] counsel argued that the change in [Mullen's] life, from an “otherwise responsible” person to “someone who goes into this life of crime” around the age of 30 could be explained by his bipolar disorder. Id. at 19-20. Mr. Neverdon argued that [Mullen] “does have a problem. And it's not an excuse, but I believe that there is a problem. I believe that it affects how he thinks and perceives things, ” id. at 22, and asserted that with treatment [Mullen] had “greater clarity.” Id. at 23. He also explained that, from his point of view, [Mullen's] mental health had likely contributed to the conflict that they had experienced in their attorney-client relationship. Id. at 20-21. Mr. Neverdon requested that [Mullen] be permitted to self-surrender a few weeks after sentencing so that he could have a forensic psychological evaluation to help determine what services would be appropriate during [Mullen's] period of incarceration. Id. at 31-32.
[Mullen] addressed the Court as well, and acknowledged that his “record is atrocious and it's just a fact.” Id. at 34. He linked his criminal history to his bipolar disorder, saying, “people really just don't understand that [he] was diagnosed with a mental illness” that has “ruined” his life. Id. at 34-35. [Mullen] told the Court that after being diagnosed and treated for his bipolar disorder “[t]his is the best I have felt in ten years, ” and “[t]he Depakote is great. The therapy is great.” Id. at 36-37.
The Court carefully considered the impact that [Mullen's] mental health should have in determining the appropriate sentence. After a several-page discussion of the [Mullen's] mental health history, see [Sentencing Tr. 42-44], the Court stated:
When I was preparing for the sentencing, I was going over the materials over the weekend and earlier this week, I took a look at Guideline Section 5H1.3, which is the mental and emotional condition policy statement and I want to refer to that just for a moment. It's not referred to in the Presentence Report or by counsel in their argument, but I thought it was important for me to look at it for my own.
It says, mental and emotional conditions may be relevant in determining whether a departure is warranted if such conditions individually or in combination with other offender characteristics were present to an unusual degree and distinguished the case in the typical cases covered by the Guidelines. And it says that mental and emotional conditions may be relevant in determining conditions of probation or supervised release; e.g., participation in a mental health program.
So I thought long and hard about this and I do believe that [Mullen's] mental health condition is highly relevant to treatment options during the period of time that [he is] serving [his] sentence and afterwards. And I couldn't agree more with Mr. Neverdon that it's very important as to whether when [he] come[s] out, [he] can get the stable treatment that puts this behind [him], because [he is] young enough to where [he has] got-[he] still ha[s] time to make a different [sic] in [his] son's life and to be-try to patch things up with [his] wife as well, but [he has] got to be the kind of person [he is] under Depakote, not the kind of person [he is] without it for that to work. So, I think that's relevant there.
I don't see it as being present to such an unusual degree on the record before me that would cause me to give the departure, however, but it certainly is relevant in terms of treatment options. [Defense counsel is] absolutely right, I need to make sure that whatever sentence I have does put that into place.

Id. at 44-45.

[Mullen's] criminal history added up to 23 points, placing him in criminal history category six. Id. at 9. The Court noted that “the criminal history, as everybody here has acknowledged goes back a long, long time, ” and while the Court recognized that [Mullen's] criminal history was likely tied to his mental health it stated that “nevertheless that's serious conduct and that has to stop in the future.” Id. at 46.

Gov't Opp'n 4-6.

         Psychiatrist Sean Hiscox, Ph.D. performed a psychological evaluation of Mullen on April 15, 2016 and provided a written evaluation. Psych. Eval., ECF No. 55-3. Of course, because this evaluation took place after sentencing, it also was not a part of the record at sentencing. Dr.

         Hiscox noted:

         Mr. Mullen has a prior criminal history in New Jersey for similar behavior and has served time in state prison and on probation. His history includes:

• 2004: theft and theft by deception
• 2005: receiving stolen property
• 2006: theft by deception and theft by failure to make a required disposition • 2008: forgery, bad checks, theft by deception (two separate charges), and theft-illegal retention
• 2009: theft by deception
• 2010: theft by ...

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