IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT L. MIHAILOVICH,

Defendant-Petitioner, )

)

vs. ) No. 3:05-CR-0067-N (BF)

) No. 3:06-CV-1569-N (BF)

UNITED STATES OF AMERICA )

Plaintiff-Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court , this case has 

been referred to the United States Magistrate Judge. The findings, conclusions, and

recommendation of the magistrate judge follow:

FINDINGS AND CONCLUSIONS

Robert L. Mihailovich (“Movant”) seeks to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255. Movant is a federal prisoner currently incarcerated in a federal

correctional institution. Respondent is the United States of America (“Respondent”). 

STATEMENT OF THE CASE

On April 12, 2005, Movant pled guilty to a one-count information, charging him with

mail fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1341 and 1342. On August 29,

2005, Movant was sentenced to 21 months’ imprisonment and a three-year term of supervised

release. Additionally, Movant was ordered to pay restitution in the amount of $197,446.12 and a

$50,000 fine. Movant did not appeal. His § 2255 motion was timely filed on August 28, 2006. 

 

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STATEMENT OF THE CLAIMS

Movant alleges that his guilty plea was involuntary and that he was denied the effective

assistance of counsel. Movant asks for an evidentiary hearing based on these claims.

 EXAMINATION OF THE CLAIMS

Involuntary Guilty Plea

Because Movant pled guilty, he may only challenge the voluntary character of his guilty

plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.

1983). If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on

federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant’s

attestation of voluntariness at the time of the plea is not an absolute bar to later contrary

contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-74

(5th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or

misrepresentation by others that his plea would become a constitutionally inadequate basis for

imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Before a trial court

may accept a guilty plea, the court must ensure that the defendant “has a full understanding of

what the plea connotes and of its consequence,” but not that he understood the “technical legal

effect” of the charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A

plea is involuntary, and thus insufficient to support a conviction, if the defendant “has such an

incomplete understanding of the charge that his plea cannot stand as an intelligent admission of

guilt.” Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). If the defendant understands the

maximum prison term and fine for the offense, the subsequent guilty plea is knowingly entered. 

Ables v. Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996) (per curiam). Absent supporting evidence in

 

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the record, a court cannot consider a habeas petitioner’s mere assertions on a critical issue in his

pro se petition to be of probative evidentiary value. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir.

1994); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).

1. Movant’s allegation that his guilty plea was not voluntary because counsel coerced

or misled Movant into pleading guilty.

Movant contends that his guilty plea was unknowing and involuntary because of

counsel’s coercion. He claims that had it not been for this coercion he would have gone to trial. 

In his plea agreement, Movant acknowledged that (1) the maximum penalty to which he was

pleading was five years’ imprisonment, a fine not to exceed $250,000 or twice the pecuniary

gain to the defendant or loss to the victims, full restitution, and three years’ supervised release;

(2) the Court would set the sentence after considering the sentencing guidelines; (3) the sentence

imposed was solely in the discretion of the court; (4) no one could predict the sentence with

certainty; (5) he would not be allowed to withdraw his plea if the sentence was higher then

expected; (6) his plea was not the result of forces, threats or promises apart from those in the

plea agreement; (7) no one had made any promises or guarantees as to the sentence the Court

was imposing; and (8) he was fully satisfied with his counsel’s legal representation. (Plea

Agreemnt. at 1-4.)

At his arraignment, Movant testified that he understood that he should never depend on

any promises or statements made by anyone pertaining to his sentence. (Arr. Tr. at 10.) He also

indicated that his guilty plea was not procured through pressure, threats, or coercion of any kind. 

(Id. at 10.) He further testified that he was satisfied with his counsel and that he fully understood

the range of punishment he could receive. (Id. at 18, 21.) 

Movant contends that counsel coerced him to plead guilty by telling him that his entire

 

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family could be charged with conspiracy to evade income taxes and that he could be charged

with additional crimes as well. (Movant’s Mem. at 13-14.) Movant does not provide evidence

that these statements were in fact made, and further, even if they were, that they were actually

false or misleading. Movant expressed his desire to keep his family members from being

prosecuted throughout plea negotiations. (App. at 7-8.) Nothing in the record indicates that if

these statements were made, they were actually false.

Movant also alleges that counsel coerced him to plead guilty by telling him that the Court

could not go outside the plea agreement. (Mem. at 15.) He does not explain how the Court went

outside of the plea agreement. There is nothing in the record that reflects that Movant’s guilty

plea was the product of coercion or misleading statements by counsel. As such, the Court finds

that Movant has not met his burden to show that his guilty plea was unknowing and involuntary.

Accordingly, Movant’s § 2255 motion should be denied. Alternatively, Movant’s ineffective

assistance of counsel claims are without merit and should be denied.

Ineffective Assistance of Counsel

The Sixth Amendment of the United States Constitution guarantees that in all criminal

prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST.,

art. VI. To merit relief pursuant to § 2255 on a claim of ineffective assistance of counsel, a

movant must demonstrate that his trial counsel's performance fell below an objective standard of

reasonableness and that this deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 691 (1984). In assessing whether a particular counsel’s performance

was constitutionally deficient, courts indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable assistance. Id. at 689. A movant’s failure to establish either

 

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prong of the Strickland test requires the court to find that counsel’s performance was not

constitutionally ineffective; hence courts are free to review ineffective assistance claims in any

order and need not address both the “deficient” and “prejudice” prongs if one component is

found lacking. Id. at 697. The prejudice prong of the Strickland test requires the petitioner to

show that there is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome. Id. at 694. A petitioner claiming ineffective assistance

must prove that the challenged conduct of his counsel rendered the proceeding fundamentally

unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland, 466 U.S.

at 687). Courts are required to consider the totality of the evidence in assessing whether the

result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S.

at 695.

1. Movant’s allegation that his counsel had a conflict of interest with other clients

Movant claims that counsel had a conflict of interest because he represented both Movant

and other members of Movant’s family at the same time. Movant contends that he was

prejudiced by this multi-party representation, and counsel therefore did not put Movant’s best

interests first.

To prove a claim of conflict of interest, a movant must establish that an actual conflict

adversely affected his counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). 

“An actual conflict exists when an attorney represents two clients whose interests in the outcome

of the matter are different.” Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir. 1996). 

Movant has failed to show that his interest in the case actually conflicted with that of

 

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another client. Movant claims that the contract he signed with counsel provided for

representation of other family members as well as himself. Upon review of the contract, the

document states that counsel “will represent the client’s family as necessary.” (App. at 4). 

Nothing in the record indicates that counsel actually represented other members of Movant’s

family. Further, Movant fails to show that counsel did not pursue plausible strategies or tactics

on his behalf. Movant also fails to present evidence that his sentence probably would have been

different had he been represented by separate counsel. Movant has failed to show an actual

conflict of interest with regard to this particular claim.

2. Movant’s allegation that his counsel had a conflict of interest with his counsel’s selfinterest

Movant claims that counsel’s self-interest conflicted with his representation. (Mem. at

10-11.) He claims that counsel denied him defense strategies and placed his own interests ahead

of Movant’s. (Mem. at 10-11.) He specifically contends that counsel (1) knew the FBI agent on

the case; (2) has just resigned as an Assistant United States Attorney; (3) previously worked with

the case agent; (4) went into private practice in order to run for state judge; and (5) allegedly was

recommended by the case agent. (Mem. at 7-11.)

Allegations of conflict of interest stemming from self interest are governed by Strickland. 

Movant’s allegations fail to show that any of these factors caused counsel to engage in deficient

conduct. The fact that counsel was a former Assistant United States Attorney does not mean that

his conduct in this case was inappropriate. The conclusory allegations made by Movant simply

have no merit and are insufficient to raise cognizable claims of ineffective assistance of counsel. 

See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000); Strickland, 466 U.S. at 690, 693-94.

3. Movant’s allegation that his counsel failed to personally interview witnesses

 

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Movant claims that counsel failed to investigate the facts of his case, failed to interview

witnesses, failed to explain available defenses, and failed to explain all of his options. Any

allegations of counsel’s failure to investigate “must allege with specificity what the investigation

would have revealed and how it would have altered the outcome of the trial. “ Lockett v.

Anderson, 230 F.3d 695, 713 (5th Cir. 2000), (quoting United States v. Green, 882 F.2d 999,

1003 (5th Cir. 1989)).

 Movant fails to identify any witness that counsel should have interviewed and fails to

explain what information each witness would have provided. (Mem. at 18-19.) Movant’s

allegations are conclusory, and he fails to explain how an investigation would have resulted in a

different outcome. Conclusory allegations are insufficient to raise cognizable claims of

ineffective assistance of counsel. Miller, 200 F.3d at 282; Strickland, 466 U.S. at 690, 693-94.

Accordingly, this claim should be denied.

4. Movant’s allegation that his counsel failed to subject the case to any meaningful

adversarial testing

Movant asserts that counsel failed to subject the case to any meaningful adversarial

testing. See United States v. Cronic, 466 U.S. 648, 659 (1984). He further contends that counsel

did not fairly and adequately apprise him of the elements of the offense, sentencing risks, and

consequences of a guilty plea. (Mem. at 25.) The record indicates that the investigation raised

issues of mail fraud, wire fraud, money laundering, and tax offenses. (App. at 7.) The

investigation also included Movant’s wife. (App. at 8.) Counsel negotiated a plea agreement in

which only Movant would be charged with a single count of mail fraud. The agreement resulted

in a three level reduction in Movant’s offense level. Based on this agreement, Movant faced a

maximum sentence below the original guideline sentence. 

 

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Counsel also submitted a sentencing memorandum in which he attempted to persuade the

Court to sentence Movant to the low end of the guideline range. (App. at 11.) He also filed a

supplemental sentencing memorandum in which he argued that a large fine would not be

necessary to accomplish sentencing objectives. Cronic requires that efforts be made by counsel,

not that these efforts be successful. The record indicates that counsel did in fact subject the case

to meaningful adversarial testing under the Strickland standard.

Movant also claims that counsel failed to adequately apprise him of the elements of the

offense, or the sentencing risks. The record indicates that this is a frivolous claim. As has been

addressed previously, Movant clearly understood his guilty plea and the risks involved. For the

foregoing reasons, the Court finds that Movant has failed to meet his burden to show that

counsel engaged in deficient conduct or that he was prejudiced.

5. Movant’s allegation that his Counsel failed to ensure Movant’s sentence was based

on accurate information

Movant contends that counsel failed to ensure that his sentencing was based on accurate

information. (Mem. at 26-28.) He does not show that the Court used any inaccurate information

to determine his sentence. Movant’s allegations are conclusory and cannot support a claim of

ineffective assistance of counsel. All of Movant’s ineffective assistance of counsel claims

should be denied.

Motion For An Evidentiary Hearing

Movant requests an evidentiary hearing based on his assertion that there are factual

disputes which, if resolved in his favor, would warrant relief. An evidentiary hearing is not

necessary on a claim of ineffective assistance of counsel if the Court can conclude that, as a

 

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matter of law, the movant has failed to establish either of the elements required by Strickland. 

Mere conclusory allegations are not sufficient to support a request for an evidentiary hearing. 

United States v. Auten, 632 F.2d 478, 480 (5thCir. 1980). In the case at hand, Movant has failed

to establish deficient conduct and resulting prejudice on each of his claims of ineffective

assistance of counsel. Based on the foregoing, Movant’s request for an evidentiary hearing

should be denied.

RECOMMENDATION

This Court hereby recommends that Movant’s motion to vacate, set aside, or modify his

conviction and sentence pursuant to 28 U.S.C. § 2255 be denied. The Court also recommends

that Movant’s Motion for an Evidentiary Hearing be denied.

SIGNED, January 8, 2007.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file

written objections to the proposed findings, conclusions and recommendation within ten days

after being served with a copy shall bar the aggrieved party from appealing the factual findings

and legal conclusions of the Magistrate Judge that are accepted by the District Court, except

upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417

(5th Cir. 1996) (en banc).

 

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