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Phillips v. United States

United States District Court, M.D. Alabama, Northern Division

December 8, 2017

LEA'TICE PHILLIPS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE

         Before the court is Lea'Tice Phillips's (“Phillips”) motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Civil Action No. 2:15cv923-WKW, Doc. No. 1.[1]For the reasons that follow, it is the Recommendation of the magistrate judge that Phillips's § 2255 motion be denied and this action be dismissed with prejudice.

         I. BACKGROUND

         On May 30, 2013, Phillips pleaded guilty under a plea agreement to wire fraud, in violation of 18 U.S.C. § 1343, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), (c)(1). On September, 23, 2013, the district court sentenced Phillips to 94 months in prison, comprising 70 months on the wire fraud count and a mandatory consecutive term of 24 months for aggravated identity theft. The court ordered that Phillips's incarceration be followed by three years of supervised release. Judgment was entered by the district court on October 2, 2013. Phillips's plea agreement contained a provision whereby she waived her right to appeal or collaterally attack her convictions and sentence except on grounds of ineffective assistance of counsel and prosecutorial misconduct. Id., Doc. No. 3-2 at 6-7.

         Phillips did not appeal. In January 2015, however, she sent a pro se letter/motion to the court asking that her sentence be reduced on the ground that District Judge Mark Fuller, who presided over her September 2013 sentencing, had been arrested for domestic violence in August 2014 and was biased against her at the time of sentencing because she was a victim of domestic abuse.[2] Id., Doc. No. 3-4. Phillips argued that Judge Fuller's bias was the reason her sentence on the wire fraud count (70 months) was above the bottom of the guidelines range, which the presentence investigation report (“PSI”) calculated to be 63 to 78 months' imprisonment. Id. On February 19, 2016, after construing Phillips's letter/motion as a Motion to Reduce Sentence, Chief United States District Judge W. Keith Watkins entered an order denying the Motion to Reduce Sentence. Criminal Case No. 2:13cr10, Doc. No. 55.

         In a second pro se letter/motion-this one received by the court on December 16, 2015-Phillips argued she was entitled to a sentence reduction under 18 U.S.C. § 3582(c)(2) based on amendments to the Sentencing Guidelines that became effective on November 1, 2015. Civil Action No. 2:15cv923-WKW, Doc. No. 3-7. That filing was also construed by this court as a Motion to Reduce Sentence, and an February 22, 2016, Judge Watkins entered an order denying the motion. Criminal Case No. 2:13cr10, Doc. No. 56.

         Also on December 16, 2015, this court received from Phillips the 28 U.S.C. § 2255 motion under consideration in this Recommendation. Civil Action No. 2:15cv923-WKW, Doc. No. 1. In her § 2255 motion, which Phillips dates as having been executed on June 22, 2015, [3] Phillips presents a claim (like the claim in her letter/motion of January 2015) that Judge Fuller was biased against her at sentencing because she was a victim of domestic abuse. Id. at 3-4 & 7. Phillips points to Judge Fuller's August 2014 arrest on domestic violence charges as evidence of his bias. Id.

         Phillips's § 2255 motion presents a second, somewhat unclear, claim that she was treated for depression “due to work conditions” at her former job several years before her arrest, for which she received counseling and was prescribed medication. Id. at 3 & 6-7. According to Phillips, by the time of sentencing, she had completed her counseling sessions and “was off the medication for approximately three years.” Id. at 6. As a special condition of Phillips's supervised release, Judge Fuller ordered that she participate in a mental health treatment program approved by the Probation Office. See Criminal Case No. 2:13cr10, Doc. No. 43 at 19. Phillips suggests that Judge Fuller imposed this condition on her supervised release on the mistaken belief she was in need of mental health treatment for her work-related depression for which she had already been successfully treated. Civil Action No. 2:15cv923-WKW, Doc. No. 1 at 6. She then appears to argue that, rather than ordering that she participate in a mental health treatment program, Judge Fuller should have imposed a shorter sentence of incarceration.[4] Id.

         II. DISCUSSION

         A. Phillips's “Mental Health” Claim

         As noted above, Phillips argues that Judge Fuller should have imposed a shorter sentence of incarceration instead of ordering that she participate in a mental health treatment program as part of the supervised release that will follow her incarceration. Civil Action No. 2:15cv923-WKW, Doc. No. 1 at 3 & 6-7. The Government maintains that this claim is time-barred under the one-year limitation period in 28 U.S.C. § 2255(f).[5] Doc. No. 3 at 3-5.

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which established a one-year limitation period for filing a motion under 28 U.S.C. § 2255. In pertinent part, AEDPA amended § 2255 to provide:

         A 1-year period of limitation shall apply to a motion under this section. The limitation ...


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