United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker, United States Magistrate Judge
the court is petitioner Keshia Lanier's
(“Lanier”) 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.
March 5, 2015, Lanier pleaded guilty under a plea agreement
to one count of wire fraud, in violation of 18 U.S.C. §
1343, and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A. Doc. No. 12-3. The plea
agreement contained an appeal/post-conviction waiver with
exceptions for claims of ineffective assistance of counsel
and prosecutorial misconduct. Doc. No. 12-3 at 7-8. Following
a sentencing hearing on September 25, 2015, the district
court sentenced Lanier to 180 months in prison, consisting of
156 months on the wire fraud count and 24 months on the
identity theft count, the terms to run consecutively. Doc.
No. 12-4; Doc. No. 12-5 at 2. In addition, the court ordered
Lanier to pay restitution in the amount of $5, 811, 406. Doc.
No. 12-5 at 5.
appealed, arguing that the district court erred in ordering
restitution, failing to give her a downward departure for
acceptance of responsibility, and finding that the number of
victims of her criminal activity exceeded 250. Doc. No. 12-7.
On March 31, 2016, the Eleventh Circuit dismissed
Lanier's appeal based on the appeal waiver in her plea
agreement. Doc. No. 12-8. Lanier did not seek certiorari
review with the United States Supreme Court.
April 14, 2106, Lanier filed this § 2255 motion
asserting the following claims:
1. Her lawyers rendered ineffective assistance of counsel on
appeal by failing to file a petition for writ of certiorari
with the Supreme Court after she asked them to do so.
2. Her lawyers rendered ineffective assistance by failing to
advise her of her right to file a petition for writ of
certiorari with the Supreme Court.
3. Her lawyers rendered ineffective assistance at sentencing
by failing to request a restitution hearing.
4. Her guilty plea was entered involuntarily and without an
understanding of the nature of the charges and the
consequences of the plea.
Doc. No. 1 at 4-5.
later amended her § 2255 motion to add a new claim for
relief that her lawyers rendered infective assistance of
counsel by failing to offer into evidence or provide to the
U.S. Probation Officer her records from the mental health
facilities she checked into after pleading guilty. Doc. No.
government argues that all of Lanier's claims are without
merit and should be rejected as grounds for relief. Doc. Nos.
12 & 29.
considering the parties' submissions, the record, and the
applicable law, the court finds that Lanier'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 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 satisfies the showings required on both prongs
of the Strickland inquiry, relief should be denied.
Strickland, 466 U.S. at 687. Once a court decides
that one of the requisite showings has not been made, it need
not decide whether the other one ...