United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
the court is petitioner David Gadsden's
(“Gadsden”) 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.
5, 2014, Gadsden pleaded guilty to conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349. Doc. No. 9-3.
Gadsden's offense involved opening or causing others to
open bank accounts with minimum deposits and using bad checks
from those accounts to buy things from various businesses.
Doc. No. 10-1 at 4. Law enforcement agents identified nearly
200 members of the conspiracy. Id. Following a
sentencing hearing on November 6, 2014, the district court
sentenced Gadsden to 120 months in prison. Doc. No. 9-7.
appealed, arguing that (1) the district court's
loss-amount calculation was not supported by sufficient
evidence and (2) the district court erred in imposing a
sophisticated-means enhancement to his sentence. See
Doc. No. 9-9. On October 5, 2015, the Eleventh Circuit
rejected Gadsden's claims for relief and affirmed his
conviction and sentence in an unpublished opinion. United
States v. Gadsden, 628 Fed.Appx. 639 (11th Cir. 2015).
Gadsden did not seek certiorari review in the United States
December 14, 2015, Gadsden filed this § 2255 motion
arguing that his lawyers rendered ineffective assistance of
counsel in the following ways:
1. Trial counsel failed to object to the district court's
loss-amount calculation on the ground it was not supported by
sufficient evidence and admitted that the loss amount was
“definitely above $400, 000.”
2. Trial counsel failed to maintain an objection to the
number of victims attributed to Gadsden in determining his
sentence, and appellate counsel failed to raise the issue on
3. Trial counsel failed to request a role reduction to
Gadsden's offense level based on his minimal or minor
participation in the offense, and appellate counsel failed to
raise the issue on appeal.
Doc. No. 1 at 6-7; Doc. No. 2 at 4-19.
government filed a response arguing that Gadsden's claims
are without merit and should be rejected as grounds for
relief. Doc. No. 9.
considering the parties' submissions, the record, and the
applicable law, the court finds that Gadsden's §
2255 motion should be denied without an evidentiary hearing.
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 have 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
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 ...