United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence. (No.
2:16-cv-08150-RDP (“Habeas Docket”), Doc. # 1).
The Government has responded to Petitioner's Motion to
Vacate (id., Doc. # 3), and the court sent
Petitioner an order with instructions on filing a reply on
April 25, 2018. (Id., Doc. # 4). To date, Petitioner
has not replied to the Government's response, and the
Motion to Vacate is ripe for decision. After careful review,
and for the reasons explained below, the court concludes that
Petitioner's Motion to Vacate is due to be denied and
Petitioner is not entitled to an evidentiary hearing.
Factual and Procedural Background
August 2014, a grand jury indicted Petitioner on: (1) two
counts of willfully filing false tax returns, in violation of
26 U.S.C. § 7206(1); (2) one count of using, acquiring,
and possessing food stamps in violation of federal law, in
violation of 7 U.S.C. § 2024(b)(1); and (3) one count of
food stamp fraud, in violation of 7 U.S.C. § 2024(c).
(Case No. 2:14-cr-00282-RDP-JHE (“Criminal
Docket”), Doc. # 1). In March 2015, Petitioner's
retained counsel moved to declare the case complex so that he
could receive more time to review the voluminous records at
issue. (Id., Doc. # 17). The court granted
Petitioner's motion and set an April 6, 2015 deadline for
pretrial motions. (Id., Doc. # 23 at 3-4).
April 2015, Petitioner retained a new attorney, and his two
other retained attorneys moved to withdraw from representing
him. (Id., Docs. # 25-27). The court granted
counsels' motions to withdraw. (Id., Docs. #
28-29). That same month, Petitioner also moved to continue
his change of plea hearing, which had been scheduled for May
5, 2015. (Id., Doc. # 30). The court granted
Petitioner's motion to continue the change of plea
hearing. (Id., Doc. # 32).
2015, Petitioner entered into a plea agreement and agreed to
plead guilty to one count of filing a false tax return and
one count of food stamp fraud. (Id., Doc. # 34 at
1-2). The agreement contained a factual basis describing
occasions where law enforcement agents exchanged food stamps
for cash and a small amount of eligible grocery items at a
store owned by Petitioner. (Id. at 3-6). It also
explained that Petitioner underreported his income for tax
years 2009 and 2010. (Id. at 6-7). Petitioner
stipulated to the accuracy of those facts. (Id. at
7). Petitioner waived his right to appeal or file a
post-conviction motion, but reserved the right to raise
ineffective assistance of counsel claims. (Id. at
10-12). Petitioner affirmed that he had discussed the
Sentencing Guidelines and their application to his case with
defense counsel before entering the plea agreement.
(Id. at 11-12). Petitioner also provided the
I have read and understand the provisions of this agreement
consisting of 18 pages. I have
discussed the case and my constitutional rights and other
rights with my lawyer. I am satisfied with my lawyer's
representation in this case. I understand that by pleading
guilty, I will be waiving and giving up my right to continue
to plead not guilty, to a trial by jury, to the assistance of
counsel at that trial, to confront, cross-examine, or compel
the attendance of witnesses, to present evidence in my
behalf, to maintain my privilege against self-incrimination,
and to the presumption of innocence. I agree to enter my plea
as indicated above on the terms and conditions set forth
(Id. at 16-17). Petitioner's defense counsel
affirmed that he had discussed the case with Petitioner and
advised him of his rights and possible defenses.
(Id. at 17-18).
8, 2015, the court conducted a change of plea hearing, and
Petitioner pled guilty to the two counts specified in the
plea agreement. (Id., Minute Entry dated June 8,
2015). Before entering his plea, Petitioner initialed and
signed an advice of rights certification stating that he
understood what would occur at the change of plea hearing, he
understood what substantive rights he would forego by
entering a guilty plea, and he affirmed that his defense
counsel had explained the matters in detail. (Id.,
Doc. # 36). Petitioner certified that he was satisfied with
his counsel's representation and that he had no
complaints about counsel's performance. (Id. at
4). He also certified that he was entering into the plea
because he was in fact guilty. (Id. at 5).
2015, one of Petitioner's former retained attorneys
entered an appearance to represent him. (Id., Doc. #
38). Petitioner's other attorney then filed a motion to
withdraw, which was granted. (Id., Docs. # 40, 42).
In August 2015, Petitioner's counsel objected to the loss
amount calculated by the probation office. (Id.,
Doc. # 46). He also objected to a two-level enhancement for
deriving more than $1, 000, 000 in gross receipts from
financial institutions. (See id.). The Government
argued against Petitioner's loss objection, but expressed
uncertainty about whether the enhancement for deriving gross
receipts from financial institutions applied. (Id.,
Doc. # 49). Before sentencing, Petitioner's counsel also
submitted a sentencing memorandum that discussed his family
connections, the support he provided to family and community
members, and offered benign reasons for his criminal conduct.
(See id., Doc. # 51).
sentencing, the court overruled an objection to the
Presentence Investigation Report, and a correction to the
report was made on the record. (Id., Minute Entry
Dated September 10, 2015). On September 11, 2015, the court
imposed a 36-month imprisonment sentence for the false tax
return conviction and a 37-month sentence for the food stamp
fraud conviction, to be served concurrently. (Id.,
Doc. # 55 at 1-2). Petitioner did not appeal his convictions.
September 13, 2016, Petitioner filed the present Motion to
Vacate. (Habeas Docket, Doc. # 1 at 12). First, Petitioner
claims that his defense attorneys rendered ineffective
assistance by failing to: (1) conduct an adequate pretrial
investigation; (2) inform him of the relevant circumstances;
(3) inform him of the likely consequences of pleading guilty;
(4) file substantive pretrial motions; (5) interview possible
trial witnesses; or (6) negotiate a more favorable plea
agreement. (Id. at 5). Second, Petitioner claims
that his defense attorneys rendered ineffective assistance
during the sentencing proceedings by failing to: (1) review
and discuss the Presentence Investigation Report with him
prior to the sentencing hearing; (2) file substantive
objections to the report; (3) argue for mitigation; or (4)
object to the substantive reasonableness of the sentence.
(Id. at 4).
federal prisoner may file a motion to vacate his or her
sentence “upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). It is
well settled that “to obtain collateral relief[, ] a
prisoner must clear a significantly higher hurdle than would
exist on direct appeal.” ...