United States of America v. Duke

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 17-cr-20733
v. 	Hon. Matthew F. Leitman
RONNIE EDWARD DUKE,
Defendant.
__________________________________________________________________/
ORDER (1) DENYING DEFENDANT’S MOTION TO VACATE
SENTENCE (ECF No. 170) AND (2) DENYING DEFENDANT A
CERTIFICATE OF APPEALABILITY
2021 was a tough year for Defendant Ronnie Duke. He was serving time in
custody on three separate sentences that had been imposed upon him in three
different federal criminal cases: a 156-month sentence for mortgage fraud, an 18-
month sentence for failure to report to custody and escape, and a 96-month sentence
for assaulting an Assistant United States Attorney. 	And he was staring down the
barrel of the 14-count First Superseding Indictment in this case, which charged him
with committing wire fraud (while on pretrial release in one of his other criminal
cases) and aggravated identity theft. 	If convicted on those charges, he faced a
sentencing guidelines range that called for well over 100 months in custody, the
possibility (if not likelihood) that all five of the aggravated identity theft sentences
(of two years each) would run consecutively to one another and to all of his other
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sentences, and the requirement that at least some portion of his wire fraud sentences
would run consecutively to his mortgage fraud sentence. 	Thus, Duke faced a
substantial risk that, if convicted in this case, much, if not all, of his entire lengthy
sentence would be ordered to run consecutively to all of his other sentences. 	The
peril to Duke was clear.
But Duke was lucky in at least one sense. The Court appointed not one, but
two, of the most experienced and most effective criminal defense lawyers in this
district to represent him in this case. Those lawyers, Richard Korn and Craig Daly,
zealously defended Duke. 	They filed numerous pretrial motions on his behalf,
engaged consultants to manage and organize the voluminous discovery, and worked
with financial experts to review issues related to the loss amount for purposes of the
sentencing guidelines. 	They also worked hard to explore a possible plea bargain.
Their goal in that endeavor, unsurprisingly, was to minimize the portion of Duke’s
sentence in this case that would run consecutively to his three other sentences. They
achieved that goal. They persuaded the Government to agree to a carefully-crafted
resolution that set Duke’s total sentence at 162 months but provided that only 72
months of that sentence would run consecutively to Duke’s other sentences. 	The
Court then sentenced Duke consistent with that agreement. Given the overwhelming
evidence of Duke’s guilt, that result, by any measure, was a tremendous success.
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Duke recognized as much. At sentencing, he praised Korn and Daly as “hav[ing]
done a great job.” (Sent. Tr., ECF No. 142, PageID.1079.)
Duke now has a much different opinion of the legal work performed by Korn
and Daly. He has filed a motion under 28 U.S.C. § 2255 to vacate his convictions
and sentence on the ground that their representation of him was so deficient as to
constitute ineffective assistance of counsel (the “Motion”). (See Mot., ECF No. 170.)
Duke’s claims in the Motion all lack merit. 	Indeed, they are so insubstantial that
they do not warrant either an evidentiary hearing or a Certificate of Appealability.
Accordingly, the Court DENIES the Motion and DENIES Duke a Certificate of
Appealability.
I
A
The background of Duke’s prior convictions and the procedural history of this
case are set forth in some detail in the Government’s response to the Motion. (See
Resp., ECF No. 182.) The Court finds the Government’s recitations of the facts and
background to be accurate and adopts it here. 	The Court highlights only a few of
those facts in order to provide a broader context for Duke’s claims. The Court will
also set forth a handful of additional facts in its analysis of each of Duke’s claims
below.
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B
Duke was charged in a First Superseding Indictment with nine counts of wire
fraud (in violation of 18 U.S.C. § 3143) and five counts of aggravated identity theft
(in violation of 18 U.S.C. § 1028A(a)(1)). (See First Superseding Indictment, ECF
No. 32.) 	The First Superseding Indictment alleged that Duke had committed the
wire fraud while on pretrial release in his (above-mentioned) mortgage fraud case
and that, accordingly, pursuant to 18 U.S.C. § 3147, at least some portion of any wire
fraud sentence had to run consecutively to the sentence imposed on Duke in the
mortgage fraud case. 	Moreover, under 18 U.S.C. § 1028A(a)(1), each aggravated
identity theft charge carried a mandatory two-year sentence that had to run
consecutively to all of Duke’s other sentences. 	In addition, the Court retained the
discretion, after considering the factors enumerated in Section 5G1.2 of the United
States Sentencing Guidelines, to run all five of the aggravated identity theft
sentences consecutively to one another. See United States v. Potts, 947 F.3d 357,
364–67 (6th Cir. 2020).
C
The Court appointed Korn to represent Duke shortly after Duke was indicted.
(See Dkt., 1/9/2018.) The Court later granted Duke’s request for the appointment of
a second attorney, and it added Daly to Duke’s defense team. (See Order, ECF
No. 55.)
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On “multiple occasions,” Duke discussed with Korn his (Duke’s) belief that
the First Superseding Indictment was flawed because two of the aggravated identity
theft charges “were both for the same person.” (Korn Aff., ECF No. 182-3,
PageID.1915-1916.) 	“[E]ach time,” Korn told Duke “the same” thing: “that for
strategic reasons, it was best not to file a motion to strike the redundant count prior
to trial but to wait until the trial commenced and then drive home this issue during
the cross examination of the Government’s witnesses.” (Id.) Korn further explained
that “if the issue was addressed in a pretrial motion, the Government could [have
then] easily ‘correct[ed]’ the mistake by filing a super[s]eding indictment with
another count of Aggravated Identity Theft referencing a different investor’s name
and circumstances. There were a multitude of ‘victims’ involved in this fraudulent
scheme, and had the Government wanted to, it could have charged a lot more than
five counts of Aggravated Identity Theft.” (Id.)
Notably, before Duke entered his plea, he orally “concurred with [Korn’s]
strategic analysis.” (Id.) And he later confirmed his agreement with Korn’s analysis
in writing. (See Duke Email, ECF 182-3, PageID.1932.)
In addition to discussing Duke’s concerns about the First Superseding
Indictment with Duke, Korn and Daly filed several substantial pretrial motions on
his behalf (see Mots., ECF Nos. 107-114), and they worked extensively with a court-
appointed discovery coordinator.
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D
At the same time that they were preparing to take the case to trial, Korn and
Daly were actively exploring a possible plea deal with the Government. They were
ultimately able to reach a plea deal for Duke. The agreement called for Duke to plead
guilty to only two of the fourteen charges in the First Superseding Indictment: the
mortgage fraud charge in Count 1 and the aggravated identity theft charge in Count
10. (See Rule 11 Plea Agmt., ECF No. 121.)
The parties entered into that agreement pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure – a rule that allows the parties to agree upon a
particular sentence as a condition of the plea. The sentence-agreement provision of
the plea agreement was carefully crafted to limit the portion of Duke’s sentence that
would run consecutively to the sentences Duke was already serving. That provision
stated as follows:
Under Federal Rule of Criminal Procedure 11(c)(1)(C),
after considering the sentencing factors in 18 U.S.C. §
3553(a) and other applicable sentencing law, including 18
U.S.C. § 1028A(b) and USSG §§ 5G1.2 and 5G1.3, the
parties agree that the appropriate disposition of this case is
for Defendant to receive the following specific sentences:
Defendant should receive sentences of a total of 162
months (equal to 13 years and 6 months) of imprisonment,
with 	a 	total 	of 	72 	months 	(equal 	to 	6 	years) 	of
imprisonment imposed to run consecutive to, and served
after the completion of, the sentences of imprisonment
previously imposed on Defendant in his three prior federal
criminal cases in this District (case numbers 2:11-CR-
20017, 2:13-cr-20881, and 2:14-cr-20136 (together, the
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“Three Prior Federal Cases”)), and with a total of 90
months (equal to 7 years and 6 months) to run concurrent
to the sentences of imprisonment previously imposed on
Defendant in the Three Prior Federal Cases. The parties
further agree the Court should impose a total of 138
months of imprisonment as the sentence for Count 1, to be
apportioned as follows: 90 months of imprisonment for the
wire fraud conviction, in violation of 18 U.S.C. § 1343, to
run 	concurrent 	to 	Defendant’s 	undischarged 	prior
sentences imposed in the Three Prior Federal Cases; and
48 months of imprisonment for committing that offense
while on pretrial release, in violation of 18 U.S.C. § 3147,
to run consecutive to Defendant’s prior sentences imposed
in the Three Prior Federal Cases and consecutive to all
other sentences imposed in this case. The parties further
agree that, for the aggravated identity theft conviction in
Count 10, in violation of 18 U.S.C. § 1028A(a)(1), the
Court 	should 	impose 	a 	sentence 	of 	24 	months 	of
imprisonment, to run consecutive to Defendant’s prior
sentences imposed in the Three Prior Federal Cases and
consecutive to all other sentences imposed in this case.
(Id., PageID.570-571.)
Other provisions of the plea agreement (1) required the Government to move
to dismiss all of the twelve remaining charges upon the Court’s imposition of
sentence and (2) prohibited the Government from bringing any other charges against
Duke for crimes “known to the [Government] on the date of the execution of the
agreement as it relates to this investigation.” (Id., PageID.549.) 	Finally, another
section of the plea agreement provided that Duke retained the right to object if the
Government argued at sentencing that the actual or intended loss amount (of Duke’s
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wire fraud) warranted the assessment of more than a 14-level increase from the base
offense level. (See id., PageID.567-568.)
When Duke appeared before the Court to enter his plea, the Court addressed
with Duke whether he was satisfied with the way in which Korn and Daly had
represented him. Duke initially said that he was satisfied, but he then appeared to
equivocate just a bit. At that point, the Court explored the matter further with Duke
and confirmed that he was fully satisfied with the legal work performed by Korn and
Daly. The Court’s exchange with Duke was as follows:
Q. Are you fully satisfied with the counsel, representation,
and advice given to you in this case by your attorneys?
A. I believe so, your Honor.
Q. Have they answered all of your questions?
A. Um, I – I believe so.
Q. Have they spent enough time discussing all aspects of
this case with you?
A. They did.
Q. Have they done the tasks that you asked them to do?
A. For the most part.
Q. And as to those they didn’t do, did they explain to you
why to your satisfaction?
A. Um, I – I guess I have no response to that, your Honor.
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Q. Well, Mr. Duke, one of the things that I need to be sure
of when I accept a guilty plea is that the defendant is fully
satisfied with the manner in which his defense lawyers
have represented him. And so let me ask you the direct
question, are you fully satisfied with the manner in which
Mr. Korn and Mr. Daly have represented you?
A. Yes, your honor.
(Plea Tr., ECF No. 141, PageID.1040-1041.) 	The Court then completed the plea
colloquy and accepted Duke’s guilty pleas.
E
Prior to sentencing, a probation officer prepared a presentence investigation
report (“PSR”) for the Court and included a proposed sentencing guidelines
calculation in that report. (See Draft PSR, ECF No. 127, PageID.604-611.) 	The
officer proposed increasing Duke’s base offense level by 16 levels based upon the
actual or intended loss caused by his wire fraud. (See id., PageID.604.) 	Korn and
Daly filed objections to that proposed assessment. (See PSR Addendum, ECF No.
130, 	PageID.693.) 	The 	Government 	responded 	that 	the 	evidence 	“easily
established” that the 16-level enhancement was appropriate. (Id.)
In the weeks leading up to sentencing, Korn and Daly engaged a forensic
accountant 	to 	conduct 	a 	careful 	review 	of 	the 	probation 	department’s 	loss
calculation. (See Korn Aff., ECF No. 182-3, PageID.1914.) 	After the consultant
completed that review, Korn, Duke, and the consultant reviewed the loss calculation
during a 1.5-hour telephone conference. 	“During that call[, Duke] agreed with
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[Korn] that there was no reason to challenge the loss amount at sentencing because
of the risks involved and because the determination of the court as to [the] loss
amount would have no effect on the [agreed-upon] sentence [to be] imposed.” (Id.)
Also before sentencing, Korn and Daly submitted a substantial sentencing
memorandum 	on 	Duke’s 	behalf. 	(See 	Sent. 	Memo., 	ECF 	No. 	134.) 	The
memorandum included numerous attachments outlining courses that Duke had
completed in custody since he had started serving his other sentences. (See ECF No.
134-3.) Korn and Daly also submitted medical information concerning Duke. (See
Medical Records, ECF No. 135-2.)
Shortly before sentencing, Duke sent the Court two letters in which he raised
concerns about, among other things, his lack of access to discovery materials while
in the custody of the Bureau of Prisons (the “BOP”) in the three years preceding his
sentencing. (See Letters, ECF Nos.131, 132.) In those letters, Duke contended that
officials with the BOP had interfered with his ability to fully and fairly review those
materials. (See id.)
F
The parties appeared before the Court for sentencing on June 27, 2022. The
Court began the proceedings by addressing Duke’s letters. (See Sent. Tr., ECF No.
142, PageID.1069-1070.) 	The Court noted that Duke had raised concerns in the
letters about insufficient access to discovery materials, but the Court expressed its
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understanding that Duke was not raising those concerns so as to suggest that there
was any infirmity in his plea. (See id.) The Court said that it understood that Duke
was raising the lack-of-access-to-discovery issue solely in order to provide context
to his request that the Court make a recommendation as to the BOP facility in which
Duke would be housed. (See id.) 	Duke confirmed that the Court’s understanding
was “100 percent correct.” (Id., PageID.1070.)
Next, Korn announced (after consulting with Duke) that Duke wished to
withdraw his objections to the 16-level enhancement arising from the actual or
intended loss amount. (See id., PageID.1071-1072; Korn Aff, ECF No. 182-3,
PageID.1914-1915.) After Korn withdrew those objections, he urged the Court to
follow the sentencing agreement in the Rule 11 plea agreement. (See Sent. Tr., ECF
No. 142, PageID.1075.) 	Korn highlighted that Duke had recently been diagnosed
with bipolar disorder and that he had taken substantial strides to rehabilitate himself
since he began serving his other sentences. (See id., PageID.1074-1075.)
The Government also asked the Court to follow the sentencing agreement in
the 	plea 	agreement. 	(See 	id., 	PageID.1084.) 	Counsel 	for 	the 	Government
emphasized that the agreed-upon sentence – which, given its breakdown, resulted in
Duke serving 72 months in custody beyond his other sentences – was warranted
based upon a number of “aggravating factors.” (Id., PageID.1082.) 	Those factors
included that Duke committed his crimes after he had absconded while on bond in
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his mortgage fraud case, that he was “a very intelligent man” who had put his talents
“to the wrong uses for so many years,” and that the victims of his scheme “were left
with significant debts” and some were even forced to “spend[] years trying to clean
up their mess.” (Id., PageID.1083-1084.)
Duke also addressed the Court at sentencing. 	He first stressed that he was
working hard to rehabilitate himself. (See id., PageID.1078.) 	He then highlighted
his agreement with the terms of his plea deal. He said that he did not “want to change
anything in the Rule 11 Agreement.” (Id., PageID.1079.) 	Next, he acknowledged
the high-quality work done by his attorneys. He said that “Mr. Korn and Mr. Daly
have done a great job.” (Id.)
The Court then sentenced Duke. 	The Court’s sentence was fully consistent
with the sentencing agreement included in the Rule 11 plea agreement and the
sentence that both Duke and the Government had asked the Court to impose during
the sentencing hearing. 	The Court further ordered Duke to pay restitution to his
victims in an amount that would be determined at a later date. (See id., PageID.1089-
1090.)
As the sentencing hearing was concluding, the Court asked Duke whether he
had “any questions or concerns about anything that happened here this afternoon.”
(Id., 	PageID.1094.) 	Duke 	said 	that 	he 	was 	to 	“address 	one 	thing.” 	(Id.,
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PageID.1095.) 	He wanted to express that he “concur[red] with everything” that
counsel for the Government had said during the proceedings. (Id.)
G
At some point after the sentencing, Duke began to view the proceedings
differently. 	In contrast to his feelings at sentencing – where he did not want to
change a single thing in his plea agreement and where he said that Korn and Daly
had done a great job on his behalf – he came to the conclusions that Korn and Daly
had provided ineffective assistance of counsel and that he had been the victim of
outrageous prosecutorial misconduct. He presented these positions (and one other)
in the now-pending Motion. (See Mot., ECF No. 170.)
In the Motion, Duke contends that the Court should vacate his convictions and
sentence because Korn and Daly provided ineffective assistance of counsel in the
following respects:
1. Korn and Daly failed to object that the First Superseding Indictment was
multiplicitous in that it charged two counts of aggravated identity theft
based upon conduct directed toward the same victim. 	According to
Duke, if Korn and Daly had properly challenged the First Superseding
Indictment on this ground, then there would have been “four counts” of
aggravated identity theft rather than “five counts.” (Id., PageID.1467.)
The Court will refer to this claim of ineffective assistance of counsel as
the “Multiplicity IAC Claim.”
2. Korn and Daly failed to object that the Government had elicited
“perjured testimony” from the lead case agent before the grand jury. (Id.,
PageID.1470.) 	Duke says that if this objection had been raised, there
would have been four counts of aggravated identity theft rather than five.
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The Court will refer to this claim of ineffective assistance of counsel as
the “Perjured Testimony IAC Claim.”
3. Korn and Daly “were both ineffective during the preparation of Duke’s
defense 	sentencing 	memorandum” 	when 	they 	failed 	to 	raise 	the
multiplicity challenge to the First Superseding Indictment and failed to
challenge the 16-level loss amount enhancement. (Id., PageID.1471.)
The Court will refer to this claim of ineffective assistance of counsel as
the “Sentencing Memo. IAC Claim.”
4. Korn and Daly were ineffective because they “did not address Duke’s
many major concerns of discovery documents known [sic] that had
prejudiced Duke.” (Id., PageID.1472.) The Court will refer to this claim
of ineffective assistance of counsel as the “Discovery IAC Claim.”
5. Korn was ineffective when he “blocked Duke’s jail calls and refused to
speak to [Duke] after sentencing July 7, 2022.” (Id., PageID.1473.) The
Court will refer to this claim of ineffective assistance of counsel as the
“Post-Sentence Call Block IAC Claim.”
6. Korn and Daly were ineffective for failing to challenge the “erroneous
Restitution order [that] was imposed.” (Id., PageID.1474.) 	The Court
will refer to this claim of ineffective assistance of counsel as the
“Restitution IAC Claim.”
In addition to the claims of ineffective assistance of counsel, Duke contends
that his aggravated identity theft conviction cannot stand in light of the Supreme
Court’s decision in Dubin v. United States, 599 U.S. 110 (2023). (Id., PageID.1475.)
The Court will refer to this claim as the “Dubin Claim.”1
1 In the Motion, Duke references Dubin under an ineffective assistance of counsel
heading, but in his supporting memorandum, he does not present the Dubin issue as
one concerning the alleged ineffective assistance of counsel. (See Memo. of Law,
ECF No. 177, PageID.1731-1732.) Instead, Duke simply argues that his conviction
cannot stand in light of Dubin. (See id.) 	The Court addresses the Dubin Claim as
presented in the memorandum of law because it is addressed in more detail there.
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Finally, Duke claims that the Assistant United States Attorney (the “AUSA”)
who presented his case to the grand jury committed prosecutorial misconduct. (See
id., PageID.1476.) 	More specifically, he claims that the AUSA “solicited” grand
jury testimony that “was both misleading and perjuried [sic].” (Id.) Duke says that
this alleged misconduct warrants relief because “truthful” testimony “would have
led to a different outcome of the Grand Jury’s proceedings and prejudiced Duke and
effected [sic] the outcome of the case.” (Id.) The Court will refer to this claim as
the “Prosecutorial Misconduct Claim.”
Duke asks the Court to “[v]acate [his] conviction[s] and sentence, and [to
grant] any other relief th[e] [C]ourt feels is appropriate.” (Id., PageID.1480.) Duke
also contends that he is entitled to an evidentiary hearing on his claims. (See Memo.
of Law, ECF No. 177, PageID.1713.) 	Duke did not support his Motion with his
own affidavit or any other affidavit.
The Government filed a response in opposition to the Motion. (See Resp., ECF
No. 182.) 	The Government supported its response with affidavits from Daly and
Korn. (See Daly Aff., ECF No. 182-1; Korn Aff., ECF No. 182-3.)
The Court has carefully reviewed all of the parties’ filings, and it is now
prepared to rule on Duke’s motion.
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II
The Court begins with Duke’s ineffective assistance of counsel claims. 	For
the reasons explained below, he is not entitled to relief on any of those claims.
A
In these Section 2255 proceedings, the Court must evaluate Duke’s ineffective
assistance of counsel claims under the following standard:
Section 2255 requires [a district court] to afford relief if a
prisoner’s constitutional rights were infringed. 28 U.S.C.
§ 	2255. 	Ineffective 	assistance 	of 	counsel 	claims 	are
cognizable under § 2255. Massaro v. United States, 538
U.S. 500, 504, 508–09, 123 S.Ct. 1690, 155 L.Ed.2d 714
(2003). 	“[T]he 	Sixth 	Amendment’s 	requirement 	that
defendants receive ‘the effective assistance of competent
counsel’ extends 	to 	all 	critical 	stages 	of 	a 	criminal
proceeding,” including plea negotiations, Byrd v. Skipper,
940 F.3d 248, 255 (6th Cir. 2019) (first quoting Lafler v.
Cooper, 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d
398 (2012); and then citing Padilla v. Kentucky, 559 U.S.
356, 373, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)),
sentencing, and direct appeal, Lafler, 566 U.S. at 165, 132
S.Ct. 1376.
To prove that he was deprived of that right, Gilbert must
show deficient performance by counsel and resulting
prejudice to the defendant. Strickland, 466 U.S. at 687,
694, 104 S.Ct. 2052. To establish deficient performance, a
petitioner “must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment.” Id. at 690, 104 S.Ct. 2052. To
prove prejudice, a petitioner “must 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
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probability sufficient to undermine confidence in the
outcome.” Id. at 694, 104 S.Ct. 2052.
Although defendants have no constitutional right to a plea
offer, “when the Government chooses to enter into plea
negotiations, the Constitution requires that defendants
receive effective assistance in navigating that crucial
process.” 	Rodriguez-Penton, 	905 	F.3d 	at 	489 	(citing
Lafler, 566 U.S. at 168, 132 S.Ct. 1376). That means
accurate advice regarding sentence exposure. Smith v.
United States, 348 F.3d 545, 553 (6th Cir. 2003) (holding
that a defendant has the right to have his counsel “explain
the sentencing exposure the defendant will face”); Moss v.
United States, 323 F.3d 445, 474 (6th Cir. 2003). See
generally 	Byrd, 	940 	F.3d 	at 	257–58 	(noting 	that 	an
attorney has a duty to give correct legal advice (collecting
cases)).
Generally speaking, “prejudice may lie where a petitioner
demonstrates 	that 	counsel’s 	deficient 	performance
infected 	his 	decisionmaking 	process, 	and 	thus
undermine[d] confidence in the outcome of the plea
process.” Rodriguez-Penton, 905 F.3d at 488. In the plea
negotiation context, that means showing “a reasonable
probability that, with proper advice, the outcome of those
negotiations would have been different.” Id. at 489–90;
Byrd, 940 F.3d at 258 (same). A defendant is not limited to
showing he would have gone to trial but for the bad advice
during the plea process. Rodriguez-Penton, 905 F.3d at
487–88. He “may demonstrate prejudice if he can show
that, 	had 	he 	known 	about 	the 	risk 	of 	adverse 	...
consequences, 	he 	would 	have 	bargained 	for 	a 	more
favorable plea.” Id. at 488.
Gilbert v. United States, 64 F.4th 763, 770–71 (6th Cir. 2023)
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B
As an initial matter, all of Duke’s ineffective assistance of counsel claims fail
because he has not sufficiently alleged that any of the purportedly-deficient actions
by his attorneys caused him prejudice. 	More specifically, he has not shown “a
reasonable probability” that absent the claimed errors by his attorneys, “the
outcome of [the] negotiations would have been different.” Id. at 771. Indeed, Duke
has not made any factual allegations about the course of the plea negotiations, the
terms of any plea offers or counter-offers, or the factors that he considered in
evaluating plea offers and making counter-offers. Instead, Duke simply identifies
the ways in which his attorneys purportedly erred and then baldly asserts that if they
had not erred in those ways, “there would have been a different result and outcome.”
(Reply, ECF No. 183, PageID.1944.) Duke’s naked assertion that the result of the
plea negotiations would have been “different” absent his attorneys’ alleged errors is
not a plausible allegation of prejudice; it is a mere parroting of the legal test for
prejudice.
In his Reply, Duke says that the result of the plea negotiations would have
been different if his attorneys had raised a multiplicity challenge to the aggravated
identity theft charges in the First Superseding Indictment and reduced the number
of those charges down from five to four. (See id., PageID.1944.) But Duke pleaded
guilty to only a single charge of aggravated identity theft, and he offers no
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explanation as to how the outcome of his plea negotiations would have been
different if he had been facing four (rather than five) aggravated identity theft
charges.
Duke further contends in his Reply that the result of the plea negotiations
would have been different if his attorneys had properly investigated the loss amount
for his offenses before the negotiations began. (See id., PageID.1948.) 	But Duke
does not allege or present any evidence that the plea negotiations turned in any way
on the loss amount for his crimes. And the evidence in the record shows that they
did not. As Daly attested in his sworn affidavit, the “main concern and focus [in
connection with the plea negotiations] was to reach an agreement with the
government regarding [the portion of] the sentence that would run consecutive to
[Duke’s] prior sentences.” (Daly Aff., ECF No. 182-1, PageID.1910.) 	Duke has
not 	disputed 	that 	contention,2 nor 	has 	he 	explained 	how 	any 	loss 	amount
calculations would have impacted the negotiations concerning the amount of the
total sentence that would be served consecutively to his other sentences.
2 Duke attacks Daly’s affidavit as “vague” and says – incorrectly – that the affidavit
shows that his attorneys wanted to reach a deal as quickly as possible. (Reply, ECF
No. 183, PageID.1944.) But Duke never disputes Daly’s claim that the goal of the
negotiations was to limit the portion of Duke’s sentence to be served consecutively
to his other sentences.
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C
Duke has also failed to satisfy the deficient performance prong with respect
to any of his ineffective assistance of counsel claims. The Court addresses each of
the claims individually below.
The Multiplicity IAC Claim. As noted above, in this claim, Duke alleges that
his attorneys unreasonably failed to raise a multiplicity objection to the First
Superseding Indictment. 	“An indictment is multiplicitous if it charges a single
offense in more than one count.” United States v. Schaffner, 715 F.2d 1099, 1102
(6th Cir. 1983) (citing United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.
1981)). 	Duke contends that the First Superseding Indictment was multiplicitous
because two of the aggravated identity theft charges (under 18 U.S.C. § 1028A)
involved the same victim. (See Memo. of Law, ECF No. 177, PageID.1713-1719.)
And he faults his attorneys for not raising that issue.
Duke has failed to show deficient performance for two reasons. To begin, the
First Superseding Indictment was not multiplicitous, and thus any multiplicity
objection would have been futile. While two of the aggravated identity theft charges
did involve the same victim (Counts 10 and 12), the charges related to two different
uses of that victim’s identity, and those separate uses are properly charged as
separate crimes. As the Government correctly explained:
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Multiple instances of possession or use of another person’s
means of identification are properly charged in multiple
counts, even for the same person—and even, unlike here,
for the same means of identification. See, e.g., See [sic]
United States v. Taylor, No. CR 19-303 (RBW), 2023 WL
5417247, at *11 (W.D. Pa. Aug. 22, 2023) (“The Court
agrees with the courts in both Abdi and Hinojosa that §
1028A authorizes the separate charging of each individual
‘transfer[ 	], 	possess[ion], 	or 	use[ 	]’ of 	‘a 	means 	of
identification of another person[.]’”). The same means of
identification 	for 	the 	same 	person 	could 	be 	“used”
multiple times in relation to the same conspiracy (or
scheme) offense over time, and that could be separately
charged, or the same identity could be used in relation to
separate underlying offenses. E.g. United States v. Soto,
799 F.3d 68, 87 (1st Cir. 2015) (“The same is true
regarding each count of aggravated identity theft. Though
Steven was charged with multiple counts of unlawfully
using Bradley’s and Espinal’s identity, each count was tied
to a different and distinct underlying felony—the fraud
related to the motorcycles and automobiles in the prior
case and the mail fraud related to each property in the
present case.”); United States v. Hinojosa, No. 14-cr-38,
2015 WL 999893, at *9 (N.D. Ga. Mar. 6, 2015) (two uses
of the same stolen social security number supported two
counts of violating § 1028A); United States v. Abdi, No.
13-cr-484, 2014 WL 3828165, at *11 (N.D. Ga. Aug. 4,
2014) (aggravated identity theft charges not multiplicitous
where each count charged separate use of the same stolen
identity).
Here, Defendant had created two different means of
identification for Victim 1 (two Fraudulent Cards with
different 	account 	numbers), 	and 	each 	means 	of
identification was used on different occasions, each in
relation to a different underlying offense (two different
executions of the fraud scheme, charged as separate wire
fraud counts, for events in which Defendant fraudulently
used each card on video surveillance). That two different
versions 	of Victim 	1’s 	name 	were 	used 	on 	the 	two
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Fraudulent Cards was the product of Defendant’s choice
when he created those cards. There was nothing improper
about including two counts for those two events.
(Resp., ECF No. 182, PageID.1896-1897.) Because a multiplicity objection would
have been futile, Duke’s lawyers were not ineffective in withholding such an
objection. See Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000) (holding
that failure to make a futile objection did not constitute ineffective assistance of
counsel).
Second (and in any event), Duke’s lawyers made a reasonable strategic
decision to withhold a multiplicity objection. As Korn has attested, “for strategic
reasons,” he decided that “it was best not to file a motion to strike the [allegedly]
redundant [aggravated identity theft] count prior to trial but to wait until the trial
commenced.” (Korn Aff., ECF No. 182-3, PageID.1916.) 	Korn said that he “felt
that if the issue was addressed in a pretrial motion, the Government could easily
‘correct’ the mistake by filing a super[s]eding indictment with another count of
Aggravated 	Identity 	Theft 	referencing 	a 	different 	investor’s 	name 	and
circumstances. There were a multitude of ‘victims’ involved in this fraudulent
scheme, and had the Government wanted to, it could have charged a lot more than
five counts of Aggravated Identity Theft.” (Id.) 	Because Korn had reasonable
strategic reasons for withholding a multiplicity challenge, his failure to raise such a
challenge was not deficient performance. See, e.g., Wright v. Bell, 619 F.3d 586, 597
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(6th Cir. 2010) (“Reasonable strategic decisions made after thorough investigation
do not amount to ineffective assistance of counsel.”).
The Perjured Testimony IAC Claim. As noted above, in this claim, Duke says
that his lawyers unreasonably failed to challenge allegedly false testimony before
the grand jury. According to Duke, the testimony falsely suggested that the victims
of aggravated identity theft in Counts 10 and 12 were different people. Duke says
that if his attorneys had raised this challenge, he would have faced four, rather than
five, counts of aggravated identity theft.
Duke has not shown that his attorneys performed deficiently with respect to
the alleged perjury. As Korn attested in his affidavit (quoted above), he had strategic
reasons not to raise before trial any challenge relating in any way to the identity of
the victim in Counts 10 and 12. (See Korn Aff., ECF No. 182-3, PageID.1916.)
Those reasons included not giving the Government an opportunity to add new
aggravated identity theft charges related to other victims of Duke’s scheme. (See id.)
Korn also had a reasonable strategic plan for dealing with any irregularities in the
manner in which the Government presented Counts 10 and 12 to the grand jury. He
planned to “confront the Government’s witnesses at trial” in order to “make the
prosecution look incompetent in the eyes of the jury and call into question the
credibility of the Government’s case.” (Id.) 	Korn’s reasonable strategic choices
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preclude Duke’s claim that his lawyers performed deficiently by not raising the
alleged perjury in a pre-trial motion. See Wright, 619 F.3d at 597.
The Sentencing Memo. IAC Claim. As noted above, in this claim Duke alleges
that his attorneys were ineffective when they failed to raise the multiplicity challenge
and a challenge to the loss amount in their sentencing memorandum. 	The
withholding of the multiplicity challenge was not deficient performance because, as
explained above, that challenge was futile. And Korn has attested that he made a
strategic decision to withhold an objection to the loss amount because (1) since Duke
had a plea agreement that specified a particular sentence, the loss amount “would
have no effect on the sentence imposed” and (2) challenging the amount could
undermine Duke’s claim that he had fully accepted responsibility. (Korn Aff., ECF
No. 182-3, PageID.1914-1915.) 	That strategic decision was reasonable, and it
precludes any claim that the withholding of a challenge to the loss amount was
deficient performance.3
The Discovery IAC Claim. As noted above, in this claim Duke contends that
Korn and Daly were ineffective because they did not address concerns that Duke had
raised regarding his lack of access to discovery. 	This claim is barred by Duke’s
sworn statements at the plea hearing. As quoted above, during that hearing, Duke
3 Korn and Daly initially did object to the loss amount when they reviewed the draft
PSR, but for the same reasons set forth above (and after consulting with Duke), they
withdrew that objection. (See Korn Aff., ECF No. 182-3, PageID.1914-1915.)
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confirmed that he was “fully satisfied with the manner in which Mr. Korn and Mr.
Daly [had] represented [him].” (Plea Tr., ECF No. 141, PageID.1040-1041.) Duke
is bound by that sworn testimony. See Baker v. United States, 781 F.2d 85, 90 (6th
Cir. 1986); McAdoo v. Elo, 365 F.3d 487, 496 (6th Cir. 2004). And in light of his
assurance to the Court that he was fully satisfied with the manner in which his
counsel had handled his case, he may not now be heard to complain that his attorneys
unreasonably failed to address his concerns related to discovery access. In any event,
as noted above, he has not even alleged that the results of the plea negotiations and/or
his decision to plead guilty under the terms of the plea agreement would have been
different if his concerns about access to the discovery materials had been addressed
to his satisfaction.
Duke’s statements at the sentencing hearing further confirm that he has no
grounds to seek relief on the basis that his attorneys did not address his concerns
related to access to discovery materials. As noted above, just prior to sentencing,
Duke raised discovery-access issues with the Court. 	Then, at sentencing, he
confirmed that those issues related not to dissatisfaction with his plea, but, instead,
to his request to be designated to a particular BOP institution. Also at sentencing,
he said that Korn and Daly did a “great job.” (Sent. Tr., ECF No. 142, PageID.1079.)
These statements underscore that Duke is not entitled to relief based upon the alleged
failure to Korn and Daly to secure for him access to discovery materials.
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The Post-Sentence Call Block IAC Claim. As noted above, in this claim, Duke
alleges that Korn performed unreasonably when Korn blocked his (Duke’s) calls
from prison after sentencing. This claim fails because, among other reasons, Korn
did not block Duke’s calls. (See Korn Aff., ECF No. 182-3, PageID.1917.) As Korn
explains, he retired and closed his office after the sentencing. (See id.) That explains
Duke’s inability to reach him by phone.4
The Restitution IAC Claim. As noted above, in this claim, Duke contends that
his lawyers performed deficiently in failing to challenge the restitution order that
was entered after sentencing. 	Duke is not entitled to relief on this claim. 	As an
initial matter, there appears to be some question as to whether a challenge to a
restitution order is cognizable in a motion under Section 2255. Duke has not cited
any cases addressing that issue. And some courts have held that a defendant may
not seek relief from a restitution order in a motion under Section 2255. See, e.g.,
United States v. Mayhew, 995 F.3d 171, 183 (4th Cir. 2021) (holding that an in-
custody defendant who brought a motion under Section 2255 challenging his
custodial sentence could not also seek relief from a restitution order in that motion
and “join[ing] the virtual consensus in the federal circuits … that by its plain terms
4 Duke says that he communicated with Korn by mail after Korn closed his office,
but that fact does not in any way support Duke’s contention that Korn blocked his
phone calls.
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§ 2255 provides no avenue to challenge a restitution order”). It does not appear that
the Sixth Circuit has squarely decided the issue.
In any event, the undisputed evidence shows that Duke communicated to his
lawyers that he did not want to challenge the Government’s restitution figures, and
thus Duke has no basis to claim that they were ineffective for failing to do so. Daly
attests under oath in his affidavit that Duke agreed to the Government’s restitution
numbers and said that he did not want to return to court for a restitution hearing. (See
Daly Aff., ECF No. 182-1, PageID.1911.) 	Duke does not dispute Daly’s sworn
statement. 	He says only that Daly “knew” the restitution figures were inaccurate.
(See Reply, ECF No. 183, PageID.1947.) But given Duke’s stated agreement with
the figures and disinterest in challenging them, Daly did not act unreasonably in
withholding a challenge to the restitution order.
D
For all of these reasons, Duke is not entitled to relief on any of his ineffective
assistance of counsel claims.
III
The Court turns next to the Dubin Claim. As explained above, in this claim,
Duke seems to suggest that his conviction for aggravated identity theft cannot stand
in light of the Supreme Court’s decision in Dubin v. United States, 599 U.S. 110
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(2023), a decision that was issued after the Court sentenced Duke in this case. This
claim fails as a matter of law.
First, Duke waived this claim in his Rule 11 plea agreement. 	In that
agreement, he waived the right to assert any and all claims on collateral review –
including by a motion under Section 2255 – other than claims for ineffective
assistance of counsel and prosecutorial misconduct. (See Plea Agmt., ECF No. 121,
PageID.577.) The Dubin Claim is plainly covered by that waiver.
Second, Dubin does not undermine Duke’s conviction for aggravated identity
theft in any way. 	In Dubin, the Supreme Court held that a defendant commits
aggravated identity theft when his use of another means of identification lies “at the
crux of the underlying criminality.” Dubin, 599 U.S. at 122. Duke admitted using a
means of identification in just that way in his plea agreement. (See Plea Agmt., ECF
No. 121, PageID.551-563.) Thus, Duke would not be entitled to relief under Dubin
even if he retained the right to assert the Dubin Claim.
IV
The Court next turns to Duke’s prosecutorial misconduct claim. 	Duke’s
allegations of prosecutorial misconduct are somewhat difficult to follow. 	They
appear to fall into two primary categories. 	First, he seems to suggest that AUSA
who presented his case to the grand jury failed to inform the grand jurors that the
victim in Counts 10 and 12 of the First Superseding Indictment (who was referred
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to as G.R. in Count 10 and G.I. in Count 12) was the same person, and he says that
that failure led the grand jury to improperly charge two different offenses in Counts
10 and 12. (This claim is related to the multiplicity issue discussed above.) Second,
he appears to contend that the AUSA presented perjured testimony to the grand jury
about a victim with the initials K.G. Duke is not entitled to relief on either theory of
prosecutorial misconduct.
For all of the reasons explained by the Government, the Court concludes that
Duke has failed to show that the AUSA (or the lead case agent whose testimony the
AUSA presented to the grand jury) knowingly and intentionally misled the grand
jury in any respect. (See Resp., ECF No. 182, PageID.1903-1905.) 	The Court is
simply not persuaded that Duke has alleged actionable prosecutorial misconduct.
Likewise, for the reasons explained by the Government, the misconduct
alleged by Duke, even if it had occurred, would not have been so pervasive as to
have fundamentally undermined the overall fairness and integrity of the grand jury
proceedings.5 (See id.) 	Indeed, Duke does not make any effort to show how the
alleged misconduct tainted his two guilty pleas. 	For instance, he does not explain
how the AUSA’s purported misconduct relating to two victims (G.I./G.R. and K.G.)
materially tainted his guilty plea to Count One of the First Superseding Indictment
5 The Court does not reach the Government’s arguments that Duke waived his
prosecutorial misconduct claim. The Court adopts only the Government’s arguments
that address the lack of merit in the claim.
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where (1) that Count alleged that he defrauded over 70 victims and (2) he has not
sufficiently identified any prosecutorial misconduct relating to the myriad other
victims. 	Likewise, he does not explain how the AUSA’s supposed misconduct
related to G.I./G.R. and K.G. materially tainted his guilty plea to Count 10 where (as
described above) (1) that Count was proper even though G.I./G.R. was the victim in
both that Count and Count 12 and (2) that Count did not relate to K.G.
Duke has not sufficiently alleged or shown that any purported prosecutorial
misconduct entitles him to relief from his plea-based convictions and sentence. He
is therefore not entitled to relief on his prosecutorial misconduct claim.
V
The Court next addresses Duke’s request for an evidentiary hearing. 	The
Court applies the following standards in determining whether to hold such a hearing:
An evidentiary hearing “is required [under Section 2255]
unless the record conclusively shows that the petitioner is
entitled to no relief.” Campbell v. United States, 686 F.3d
353, 357 (6th Cir. 2012) (quoting Arredondo v. United
States, 178 F.3d 778, 782 (6th Cir. 1999)); see also 28
U.S.C. 	§ 	2255(b). 	The 	burden 	“for 	establishing 	an
entitlement to an evidentiary hearing is relatively light,”
and “[w]here there is a factual dispute, the habeas court
must hold an evidentiary hearing to determine the truth of
the petitioner’s claims.” Turner v. United States, 183 F.3d
474, 477 (6th Cir. 1999). A petitioner’s “mere assertion of
his innocence,” without more, does not entitle him to an
evidentiary hearing. Valentine v. United States, 488 F.3d
325, 334 (6th Cir. 2007); see also Turner, 183 F.3d at 477.
But when presented with factual allegations, “a district
court may only forego a hearing where ‘the petitioner’s
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allegations cannot be accepted as true because they are
contradicted 	by 	the 	record, 	inherently 	incredible, 	or
conclusions rather than statements of fact.’” MacLloyd v.
United States, 684 Fed.Appx. 555, 559 (6th Cir. 2017)
(internal quotation marks omitted) (quoting Arredondo,
178 	F.3d 	at 	782). 	“[W]hen 	a 	defendant 	presents 	an
affidavit containing a factual narrative of the events that is
neither 	contradicted 	by 	the 	record 	nor 	inherently
incredible and the government offers nothing more than
contrary representations to contradict it, the defendant is
entitled to an evidentiary hearing.” Huff, 734 F.3d at 607
(citation and internal quotation marks omitted).
Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018).
Duke is not entitled to an evidentiary hearing because, for all of the reasons
explained above, all of his claims fail as a matter of law on the record before the
Court. 	There are simply no “factual dispute[s]” to be resolved at such a hearing.
Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999). For instance, while Duke
offers his thoughts on the affidavits of attorneys Korn and Daly, he does not identify
any evidence in the record that contradicts their factual assertions that are fatal to
many of his ineffective assistance of counsel claims. Indeed, he does not even make
any specific factual allegations that contradict the key factual contentions made by
Korn and Daly. Moreover, he has not “present[ed] an affidavit containing a factual
narrative of the events,” Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013), and
the absence of such an affidavit underscores the lack of any factual dispute to be
resolved at an evidentiary hearing. Finally, as noted above, some of Duke’s claims
rest on contentions that are conclusory – like his naked assertion that the result of
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the plea bargaining process would have been different if his lawyers had calculated
the loss amount and eliminated one of the five aggravated identity theft charges –
and such assertions are insufficient to warrant an evidentiary hearing. See Martin,
889 F.3d at 832.
For all of the reasons explained above, the Court concludes that Duke is not
entitled to an evidentiary hearing.
VI
Finally, Duke may not appeal the Court’s decision unless the Court issues him
a Certificate of Appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22.
A court may issue a Certificate of Appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
That standard is met when “reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner.” Welch v. United States, 136 S. Ct.
1257, 1263 (2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here,
reasonable jurists would not debate the Court’s conclusion that Duke is not entitled
to the relief he seeks. Thus, the Court declines to issue Duke a Certificate of
Appealability.
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VII
For all of the reasons explained above, IT IS HEREBY ORDERED that:
• 	Duke’s motion to vacate his sentence (ECF No. 170) is DENIED; and
• 	Duke is DENIED a Certificate of Appealability.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: December 11, 2025
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on December 11, 2025, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
(313) 234-5126
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