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Mollica v. United States

United States District Court, N.D. Alabama, Southern Division

September 12, 2018

TERRI MCGUIRE MOLLICA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS SENIOR UNITED STATES DISTRICT JUDGE

         I. Procedural History

         On July 5, 2017, Terri McGuire Mollica (“Petitioner”) filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon her in United States v. Mollica, 2:15-cr-224-VEH-TMP (N.D. Ala. 2015) (doc. 1) (the “Section 2255 Motion”). Sentence was imposed on October 15, 2015, after Petitioner pleaded guilty to the crime of Unlawful Use of a Communication Facility, in violation of 21 U.S.C. § 843(b). This Court sentenced Petitioner to a total of 28 months imprisonment, of which 14 months was to run concurrently with the sentence to be imposed in United States v. Mollica, 2:14-cr-329-KOB-HGD (N.D. Ala. 2016), and 14 months-imposed based on the sentencing enhancement found at 18 U.S.C. § 3147-was imposed to run consecutively to any other term of imprisonment.

         Petitioner appealed her sentence. The Court of Appeals summarized Petitioner's direct appeal issues as follows:

Terri McGuire Mollica appeals her 28-month total sentence of imprisonment, imposed after she pleaded guilty to one count of unlawful use of a communication facility to commit a felony, in violation of 21 U.S.C. § 843(b), and received a statutory enhancement pursuant to 18 U.S.C. § 3147 for committing that offense while on bond. She argues that her total sentence was substantively unreasonable because the district court improperly implemented the division of sentences required by 18 U.S.C. § 3147 and U.S.S.G. § 3Cl.3. She also argues that her total sentence, which included a 100% upward variance, was substantively unreasonable.

United States v. Mollica, 655 Fed.Appx. 726, 727 (11th Cir. 2016).

         On July 29, 2016, Petitioner's sentence was affirmed by the Eleventh Circuit Court of Appeals. That Court rejected Petitioner's first appeal issue, holding that “[t]he district court did not abuse its discretion when it imposed a substantial sentencing enhancement pursuant to 18 U.S.C. § 3147: a large enhancement was justified based on the § 3553(a) sentencing factors.” Id. at 728-29. The Court of Appeals also rejected Petitioner's second (and last) issue, holding that “[t]he total sentence . . . is substantively reasonable.” Id. at 729. In reaching its conclusion on the second issue, the Court stated:

The district court properly considered the section 3553(a) factors when imposing a substantial upward variance. The victims of the instant offense were a co-conspirator and the spouse of a prosecutor that were involved in Mollica's fraud and money laundering conviction. The district court noted the nature and circumstances of the offense indicated that the offense was conducted in a calculating and sophisticated way, in an attempt either to intimidate or to retaliate against a co-conspirator and a prosecutor trying her case. The district court also noted a need to uphold the law and adequately to deter criminal conduct of an intimidating or vindictive nature. The nature of the offense and the need to uphold the law and integrity of judicial proceedings both point in the direction of a large enhancement. Furthermore, the resulting sentence was 28 months, which is substantially below the statutory maximum of 48 months.

Id.

         The Government filed its Answer and Response in Opposition (doc. 9) on November 14, 2017. Petitioner filed her Reply (doc. 13) on December 11, 2017. She filed a “Supplemental Addendum” (doc. 14) on February 13, 2018. Accordingly, the Section 225 Motion is ripe for review.

         II. Threshold Issue: Timeliness

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted on April 24, 1996, and, pertinent to this analysis, added a new subdivision to 28 U.S.C. § 2255 providing for a one-year period of limitations within which federal prisoners must file their motions to vacate pursuant to 28 U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000), cert. denied, 531 U.S. 971, 121 S.Ct. 410, 148 L.Ed.2d 316 (2000). A one-year period of limitation applies to a motion under section 2255. The limitation period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         The Eleventh Circuit affirmed Petitioner's conviction and sentence on July 29, 2016. Since Petitioner did not file a petition for writ of certiorari in the Supreme Court (see Docket Sheet), her conviction became final ninety (90) days later, on October 27, 2016, that is, the date on which the time for filing a petition for certiorari expired. Clay v. United States, 537 U.S. 522, 524-25, 532, 123 S.Ct. 1072, 1075, 1079, 155 L.Ed.2d 88 (2003).

         On June 29, 2017, Petitioner signed her Section 2255 Motion under oath. (Doc. 1 at 12, 18). Applying the “prison mailbox rule, ” the Court deems the Section 2255 Motion to have been filed that day. See Jones v. United States, 304 F.3d 1035, 1038 n.7 (11th Cir. 2002) (per curiam) (holding that a prisoner's section 2255 motion is deemed to have been filed upon the “date that he delivered it to prison authorities for mailing, presumptively, . . . the day that he signed it” (citing Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001))). Accordingly, the Section 2255 Motion is timely.[1]

         III. General Legal Principles

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments pursuant to section 2255 are extremely limited. A prisoner is entitled to relief only 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(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011) (quoting 28 U.S.C. § 2255(a)). “[R]elief 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) (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)). The “fundamental miscarriage of justice” exception is met if a petitioner shows that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986).

         The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). “[O]nce a matter has been decided adversely to a defendant on direct appeal[, ] it cannot be re-litigated in a collateral attack under section 2255.” Nyhuis, 211 F.3d at 1343 (first alteration in original) (quoting United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977)). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (stating that “identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects”). Additionally, an issue that was available to be raised on direct appeal, but that was not, is also procedurally barred. McKay, 657 F.3d at 1196 (“Under the procedural default rule, ‘a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.'” (citing Lynn, 365 F.3d at 1234)).

         Petitioner asserts several challenges to her counsel's effectiveness during various stages of the proceeding. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to the assistance of counsel during criminal proceedings against them. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). When assessing counsel's performance under Strickland, the Court employs a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance . . . .” Burt v. Titlow, 571 U.S. 12, 24, 134 S.Ct. 10, 18, 187 L.Ed.2d 348 (2013) (citing Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 1243, 152 L.Ed.2d 291 (2002)). To prevail on a claim of ineffective assistance of counsel, the movant must demonstrate (1) that her counsel's performance was deficient, i.e., the performance fell below an objective standard of reasonableness, and (2) that she suffered prejudice as a result of that deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

         A court need not address both prongs of Strickland if the movant makes an insufficient showing on one of the prongs. Id. at 697; see also Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Butcher v. United States, 368 F.3d 1290, 1293 (11 Cir. 2004). Further, counsel is not ineffective for failing to raise non-meritorious issues. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001).

         Regarding the prejudice component, the Supreme Court has explained that “[t]he defendant 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, 104 S.Ct. at 2068. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.

         The two-pronged Strickland test is also applicable to ineffective assistance of counsel claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). As applied to the plea situation, the first prong of Strickland remains the same in that the attorney's conduct must fall within the range of reasonable conduct. Id. at 58. The second prong of the Strickland test “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59. In other words, in order to satisfy the prejudice requirement, a defendant claiming ineffective assistance of counsel during the plea process “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. (footnote omitted).

         IV. Issues Presented

         The Petitioner asserts seventeen grounds. (See doc. 1). As explained below, each and every ground fails.

         1. Ground #1: Violation of Due Process Related to Upward Sentencing Departure

         This ground fails because the Court did not “depart” upward; it varied upward. Further, this issue was “available” at the time of Petitioner's direct appeal, and thus could have been raised on direct appeal, but was not.[2] Accordingly, review of this issue before this Court is procedurally barred. McKay, 657 F.3d at 1196 (“Under the procedural default rule, ‘a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.'” (citing Lynn, 365 F.3d at 1234)).

         Although there are exceptions to procedural default, no exception is applicable to this ground, nor has Petitioner asserted that any apply. Specifically, Petitioner has failed to allege, much less show, that “cause and prejudice” or a “miscarriage of justice” (i.e., actual innocence) excuses her failure. See id.

         This claim fails.

         2. Ground #2: Violation of 6th Amendment Right to Effective Assistance of Counsel Related to Ground #1

         Petitioner also asserts that her counsel's failure to raise this due process claim on appeal was ineffective assistance.[3] This argument fails for at least four reasons. First, this Court did not “depart”; it varied. Second, if Petitioner is challenging the Court's variance, Petitioner's counsel raised that issue on appeal. Third, the Eleventh Circuit affirmed this Court's variance and the sentence. Finally, any argument that the Court's sentence violated Petitioner's due process rights fails, and thus it was not ineffective assistance to fail to assert it. Nyhuis, 211 F.3d at 1344 (“Appellate counsel is not ineffective for failing to raise claims ‘reasonably considered to be without merit.'” (quoting Alvord v. Wainwright, 725, F.2d 1282, 1291 (11th Cir. 1984))).

         This claim fails.

         3. Ground #3: Violation of 5th Amendment Right to Due Process and Protection from Self-Incrimination

         This ground is asserted based on a non-custodial interview of Petitioner in her home on May 11, 2015. Petitioner asserts that this interview was surreptitiously recorded. This ground is procedurally defaulted, as it could have been, but was not, raised on direct appeal. Petitioner's reason for not raising this issue on direct appeal is that the “U.S. Attorney's office agreed to drop related charges as a result of a Plea Agreement.” (Doc. 1 at 7). This asserted reason does not fall within any of the exceptions to the procedural default rule.

         Additionally, in the plea agreement, Petitioner waived her right to collaterally attack her conviction. The Fifth Amendment claim asserted here has nothing to do with the Court's variance to an above-guideline sentence (which was an appeal right reserved in the plea agreement). Rather, it is a challenge to ...


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