United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker, United States Magistrate Judge.
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.
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.
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.
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
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.
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.
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,
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.
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.
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.
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.
General Standard of Review
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).
Ineffective Assistance of Counsel Claims
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
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.
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.
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
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).
Failure to File Petition for Writ of Certiorari
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.
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).
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).
reasons set forth above, Alexander is entitled to no relief
on this claim of ineffective assistance of counsel.
Failure to Challenge Loss Amount
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.
§ 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). 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).
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.
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.
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,
§ 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. 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.
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
Rights to Jury ...