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Mitchell v. United States

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

July 16, 2018

DAMEISHA MITCHELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          SUSAN RUSS WALKER, UNITED STATES MAGISTRATE JUDGE

         Before the court is Dameisha Mitchell's (“Mitchell”) motion for relief under 28 U.S.C. § 2255, as amended by Mitchell. Doc. Nos. 1, 10 & 12.[1] After considering the parties' submissions, the record, and the applicable law, the court finds that the § 2255 motion should be denied without an evidentiary hearing.

         I. INTRODUCTION

         On March 26, 2015, Mitchell pleaded guilty under a plea agreement to one count of 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). Doc. No. 6-3. Mitchell's convictions stemmed from her participation in a massive scheme to obtain tax refunds by filing fraudulent tax returns using stolen identities. Her plea agreement contained a provision by which she waived her right to appeal or collaterally attack her conviction and sentence, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. Doc. No. 6-2 at 6-7. Following a sentencing hearing on August 7, 2015, the district court sentenced Mitchell to 65 months in prison, consisting of 41months on the conspiracy count and 24 months on the identity theft count, the terms to run consecutively. Doc. No. 6-3. Mitchell did not appeal.

         On June 30, 2106, Mitchell filed this § 2255 motion asserting claims that her trial counsel rendered ineffective assistance by failing to challenge: (1) the method used to calculate the loss amount attributed to her; (2) “the number of tax checks that were actually cashed”; and (3) “the victim's enhancement in light of Apprendi.” Doc. No. 1 at 4. Mitchell later amended her § 2255 motion to add a claim that she is entitled to a minor-role reduction based on Amendment 794 to § 3B1.2 of the Sentencing Guidelines.[2] Doc. Nos. 10 & 12.

         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 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).

         B. Ineffective Assistance of Counsel

         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 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 has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         1. Method Used to Calculate Loss Amount

         Mitchell claims her trial counsel was ineffective for failing to challenge the method used to calculate the loss amount attributed to her. Doc. No. 1 at 4.

         As part of her plea agreement, Mitchell admitted that she received tax refund checks from several of her coconspirators and took those checks to another coconspirator, Sharonda Johnson, to cash. Doc. No. 6-2 at 7-8, ¶ 13.b. Mitchell admitted that she caused Johnson and others to cash at least 195 refund checks totaling $440, 176.56 at a Walmart store where Johnson worked. Id. at 8, ¶ 13.e; see also Doc. No. 6-3 at 15. Records from Walmart and the IRS showed that Johnson cashed 195 refund checks generated from fraudulent tax returns filed in the conspiracy. Doc. No. 6-7 at 15-19, ¶¶ 43, 50 & 52. The district court accepted the U.S. Probation Office's determination that the loss attributable to Mitchell for her criminal conduct was $440, 176.56, based on Mitchell's participation in the conspiracy. Id. at 20, ¶ 60. Applying § 2B1.1(b)(1) of the Sentencing Guidelines, the court imposed a 14-level enhancement to Mitchell's offense level. See U.S.S.G. § 2B1.1(b)(1)(H), (I) (providing for 14-level specific offense characteristic enhancement where the loss is more than $400, 000 but less than $1, 000, 000).

         Mitchell's ineffective assistance of counsel claim is entirely conclusory and unsupported by any factual allegations. See Doc. No. 1 at 4. For instance, Mitchell does not point to any flaw in the method used to calculate the loss amount attributed to her or suggest a different method that should have been used to calculate the loss amount. Nor does she identify a plausible argument-or any particular evidence-that her counsel might have presented that was reasonably likely to change the loss calculation in her case.

         Conclusory or unsupported allegations cannot support an ineffective assistance of counsel claim. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (finding “unsupported allegations, conclusory in nature and lacking factual substantiation” to be an insufficient basis for relief); Caderno v. United States, 256 F.3d 1213, 1217 (11th Cir. 2001) (vague, conclusory allegations in a § 2255 motion are insufficient to state basis for relief); see also Saunders v. United States, 278 Fed.Appx. 976, 979 (11th Cir. 2008) (petitioner must allege ‚Äúreasonably ...


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