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Alexander v. United States

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

March 5, 2018

CHARNESHA ALEXANDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker, United States Magistrate Judge.

         Before the court is Charnesha Alexander's (“Alexander”) pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. No. 1.[1]

         I. INTRODUCTION

         On November 18, 2014, Alexander pleaded guilty under a plea agreement to conspiring to defraud the United States with respect to claims, in violation of 18 U.S.C. § 286, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). The plea agreement contained a provision under which Alexander waived her right to appeal or collaterally attack her conviction and sentence, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. Following a sentencing hearing on March 5, 2015, the district court sentenced Alexander to 111 months in prison, comprised of an 87-month sentence for the conspiracy conviction and a consecutive 24-month sentence for the identity theft conviction.

         Alexander appealed, arguing that the district court erred by using the amount of intended loss, as opposed to the amount of actual loss, in determining the loss attributable to her under the sentencing guidelines. Doc. No. 4-7. On December 2, 2015, The Eleventh Circuit dismissed Alexander's appeal based on the appeal waiver in her plea agreement. Doc. No. 4-8. After her appeal was dismissed, Alexander did not seek certiorari review in the United States Supreme Court.

         On March 15, 2016, Alexander filed this § 2255 motion asserting the following claims:

1. Defense counsel rendered ineffective assistance by failing to (1) file an appeal when Alexander requested that one be filed; (2) challenge the loss amount attributed to Alexander under the sentencing guidelines by challenging the amount of actual loss as opposed to the amount of intended loss; and (3) inform Alexander of her rights to a jury trial and an appeal.
2. Alexander's guilty plea was unlawfully induced and not knowing and voluntary, violating her constitutional right to due process under the Fifth Amendment.

Doc. No. 1 at 4-5.

         On April 25, 2016, The government filed a response, arguing that all of Alexander's claims were insufficiently pleaded and without merit and that her challenge to her guilty plea was also barred by the collateralattack waiver in her plea agreement. Doc. No. 4.

         On May 16, 2016, Alexander filed a reply to the government's response, clarifying that she did not mean to argue that her counsel was ineffective for failing to file an appeal, [2]but rather that counsel was ineffective for ignoring her request that she file a petition for writ of certiorari with the U.S. Supreme Court after her direct appeal was dismissed by the Eleventh Circuit. Doc. No. 9 at 1-2. In addition, Alexander alleged (1) that the district court erred in the amount of restitution it ordered her to pay and (2) that the government breached the plea agreement by failing to move for a downward departure under U.S.S.G. § 5K1.1 at sentencing based on her “substantial assistance.” Id. at 2.

         On June 28, 2017, Alexander filed pleadings construed by this court to contain a motion for leave to amend her § 2255 motion. See Doc. Nos. 10, 11, 12 & 12-1; see also Doc. Nos. 13 & 18. In seeking to amend, Alexander reasserted her claims that her counsel was ineffective for ignoring her request that she file a petition for writ of certiorari with the Supreme Court after her direct appeal was dismissed and for failing to challenge the loss attributed to her under the sentencing guidelines. Doc. No. 11 at 1-2. Alexander also asserted, for the first time, that her counsel was ineffective for (1) failing to meet with her regularly and familiarize herself with the case; (2) failing to conduct adequate pretrial investigation and interview witnesses; (3) failing to explain the plea agreement to her; (4) “grossly underestimat[ing] [her] sentencing exposure” as only five years in prison; (5) failing to “show or discuss” the presentence investigation report (“PSI”) with her; (6) failing to challenge the district court's use of U.S.S.G. § 2B1.1 rather than U.S.S.G. § 2T1.1 (the tax evasion guideline) to determine her specific offense characteristic enhancements; (7) failing to argue that the loss attributed to her should have been limited to 130 tax returns and not the 948 tax returns involved in the entire conspiracy; (8) failing to argue for a minor role reduction in her offense level; and (9) failing to obtain a downward departure for substantial assistance that she says was promised to her. Doc. No. 11 at 1-2.

         On August 2, 2017, the government filed a response arguing that the claims raised by Alexander in her amendment are untimely under 28 U.S.C. § 2255(f)'s limitation period and, for purposes of Rule 15 of the Federal Rules of Civil Procedure, do not relate back to claims in her original § 2255 motion. Doc. No. 17.

         For the reasons that follow, the court finds that Alexander's § 2255 motion should be denied without an evidentiary hearing and this action dismissed with prejudice. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         II. DISCUSSION

         A. General Standard of Review

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may secure relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).

         B. Ineffective Assistance of Counsel Claims

         A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 689. Second, the 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.” Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

         Scrutiny of counsel's performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Id.

         As noted, under the prejudice component of Strickland, 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.” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.

         Unless a petitioner makes the showings required on both parts of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the required showings has not been made, it need not decide whether the other one has been made. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can “establish … that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker[.] Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2nd Cir. 1994).

         1. Failure to File Petition for Writ of Certiorari

         Alexander claims that her counsel rendered ineffective assistance on appeal by failing to file a petition for writ of certiorari with the U.S. Supreme Court after her direct appeal was dismissed by the Eleventh Circuit although she “clearly instructed [her] attorney to file one.” Doc. No. 9 at 1-2; Doc. No. 11 at 1.

         Certiorari review by the Supreme Court is discretionary. Ross v. Moffitt, 417 U.S. 600, 617 (1974). Criminal defendants do not have a constitutional right to counsel to pursue discretionary review. See Austin v. United States, 513 U.S. 5, 8 (1994). Because a defendant does not have a constitutional right to counsel on discretionary appeals, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), counsel's performance cannot be deemed constitutionally deficient for a failure to petition the Supreme Court for certiorari review. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); see also Nichols v. United States, 563 F.3d 240, 251 (6th Cir. 2009); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008). Here, Alexander has no legitimate claim under § 2255 based on her allegation that her counsel was ineffective for ignoring her request that she file a petition for writ of certiorari with the Supreme Court. See Lynn, 365 F.3d at 1232 (relief under § 2255 is reserved to correct errors of constitutional dimension, or fundamental errors which result in a complete miscarriage of justice).

         Even if Alexander had a constitutional right to counsel on discretionary appeals, her ineffective assistance claim would fail under the second part of the Strickland test, because she has not shown prejudice. Alexander demonstrates no error-and makes no attempt to demonstrate error-in the Eleventh Circuit's judgment dismissing her appeal based on the waiver provision in her plea agreement. See Doc. No. 4-8. Nothing in the allegations of Alexander's § 2255 motion suggests that her case would have been selected by the Supreme Court for review or that the ultimate outcome of the proceedings would have been different. See Steele, 518 F.3d at 988-89 (requiring petitioner to demonstrate prejudice where counsel did not file petition for certiorari by showing she would have succeeded in obtaining a writ of certiorari and a reasonable probability she would have obtained relief on her sentence).

         For the reasons set forth above, Alexander is entitled to no relief on this claim of ineffective assistance of counsel.

         2. Failure to Challenge Loss Amount

         Alexander claims that her trial counsel was ineffective for failing to challenge the loss attributed to her under the sentencing guidelines by challenging the amount of actual loss as opposed to the amount of intended loss that resulted from her offense. Doc. No. 1 at 4; Doc. No. 11 at 2.

         Under § 2B1.1(b)(1) of the sentencing guidelines, the offense level for a defendant convicted of certain economic offenses-including offenses involving fraud and deceit- is subject to a specific offense characteristic enhancement if the loss from the criminal conduct exceeded $5, 000, with the extent of the enhancement determined by the amount of the loss. U.S.S.G. § 2B1.1(b)(1) (2014).[3] Application notes clarify that, for purposes of § 2B1.1(b)(1), “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. n.3(A).

         Here, as set out in the PSI and in the plea agreement, and as argued by the government at sentencing, the district court arrived at the loss amount attributable to Alexander by considering approximately 948 fraudulent tax returns filed between January 2011 and May 2014 through several sham tax preparation businesses claiming a total of $3, 484, 643 in refunds from the IRS. See Doc. No. 4-4 at 6-8; Doc. No. 4-2 at 7-8, ¶ 13.c; Doc. No. 7-1 at 5, ¶ 7; 7-8, ¶¶ 15, 21 & 25; 9, ¶¶ 26 & 32. The fraudulent returns used personally identifiable information (“PII”) stolen from Carmike Cinemas and other places. Doc. No. 4-4 at 6-8; Doc. No. 4-2 at 8, ¶ 13.e. Based on the fraudulent tax returns, the IRS paid out a total of $840, 692. Doc. No. 7-1 at 8-9, ¶¶ 25 & 26.

         In her plea agreement, Alexander admitted that she conspired with her then-boyfriend Robert Walker and Ladonna Conley to file the fraudulent tax returns. See Doc. No. 4-2 at 7, ¶ 13.a. She further admitted to providing stolen identities and being involved in almost every step of the conspiracy. See id. at 7-8, ¶¶ 13.a-f.

         Considering the evidence, the district court found that the loss attributable to Alexander as intended loss under § 2B1.1(b)(1) was $3, 484, 643 (the total of the fraudulent claims filed with the IRS in the conspiracy), and that this entire amount was reasonably foreseeable to Alexander. Based on this finding, and applying § 2B1.1(b)(1), the district court imposed an 18-level specific offense characteristic enhancement to Alexander's offense level. See U.S.S.G. § 2B1.1(b)(1)(J), (K) (2014) (providing for 18-level enhancement where loss is more than $2, 500, 000 but less than $7, 000, 000); Doc. No. 7-1 at 9, ¶ 31.

         Alexander's § 2255 claim notwithstanding, her trial counsel did in fact challenge the loss amount attributed to her. The record reflects that counsel filed objections to the PSI regarding the amount of loss, see Doc. No. 7-2 at 1-2, and then pursued those objections at the sentencing hearing. During sentencing, counsel argued that the loss attributed to Alexander should be reduced to cover only her conduct. Doc. No. 4-2 at 5-6. In this regard, counsel argued that Alexander's coconspirators played a larger role in the conspiracy and that Alexander should not be held liable for their actions. Id. Counsel also argued that the large disparity between the actual loss ($840, 692) and the intended loss ($3, 484, 643) should result in a reduced sentence for Alexander.[4] Id. The district court rejected counsel's arguments and found that the amount of intended loss was properly calculated and that Alexander was responsible for all criminal activity in the conspiracy because all conduct by her coconspirators was reasonably foreseeable to her. See Id. at 9.

         Alexander's claim that her trial counsel was ineffective for failing to challenge the amount of actual loss, as opposed to the amount of intended loss, is vague and conclusory. For purposes of the § 2B1.1(b)(1) enhancement, intended loss and not actual loss was the controlling consideration. See U.S.S.G. § 2B1.1, cmt. n.3(A) (For purposes of § 2B1.1(b)(1), “loss is the greater of actual loss or intended loss.”). Given that her trial counsel vigorously challenged the loss amount attributed to her, Alexander does not show that her counsel's performance in this regard was professionally unreasonable. Moreover, Alexander fails to show how she was prejudiced by counsel's performance-as she neither demonstrates that the loss attributed to her was improperly calculated nor identifies a plausible argument or evidence that her counsel could have presented that was reasonably likely to change the district court's loss determination. Alexander is entitled to no relief on this claim of ineffective assistance of counsel.

         3. Rights to Jury ...


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