United States District Court, M.D. Alabama, Eastern Division
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE
action is before the Court on the Recommendation of the
Magistrate Judge (doc. 16). After due and proper
consideration of the issues raised and there having been no
objections filed, the Recommendation of the Magistrate Judge
made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED as the
opinion of this Court. Accordingly, it is ORDERED that
Petitioner's motion for relief under 28 U.S.C. §
2255, as amended, is DENIED and this action is DISMISSED.
11(a) of the Rules Governing § 2255 Proceedings states
that the “district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant” in a § 2255 proceeding.
Where the claims have been rejected on the merits, such as
here, “to obtain a COA, a movant must make ‘a
substantial showing of the denial of a constitutional
right.' 28 U.S.C. § 2253(c)(2). To make this
substantial showing, the movant must demonstrate that
‘reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong,' or that the issues ‘deserve encouragement
to proceed further.'” Vernon v. United
States, 2017 WL 6939207, at *3 (11th Cir. June 1, 2017)
(unreported opinion), cert. denied, 138 S.Ct. 2638
(2018) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotation omitted)).
raised three claims of ineffective assistance of counsel and
a claim that she was entitled to a retroactive minor role
reduction based on an amendment to the Sentencing Guidelines.
The first and second claims of ineffective assistance of
counsel - that her counsel was ineffective for failing to
challenge the method of calculating the loss amount
attributed to her and ineffective for failing to challenge
the number of checks cashed - were conclusory and not
supported by any factual allegations. Thus, no reasonable
jurist could debate or find wrong the decision to dismiss
this claim. Moreover, the records from Walmart and the
Internal Revenue Service showed that 195 refund checks
generated from the fraudulent tax returns were cashed at
Walmart by one of Mitchell's co-conspirators.
Mitchell's third claim, that her counsel was ineffective
for failing to challenge the victim enhancement, no
reasonable jurist could debate or find wrong the decision to
dismiss this claim. Mitchell's petition was based upon
Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Alleyne v. United States, 570 U.S. 99 (2013).
However, the statutory maximum and minimum sentences for
Mitchell's offenses were not increased by application of
the Sentencing Guidelines victim enhancement nor were they
increased due to any other judicial fact-finding.
Mitchell claimed that she was entitled to a retroactive
minor-role reduction based on an amendment to the Sentencing
Guidelines. However, Mitchell had knowingly and voluntarily
waived her right to appeal or collaterally attack her
conviction and sentence with the exception of claims of
ineffective assistance of counsel or prosecutorial
misconduct. Moreover, the amendment cited by Mitchell was a
clarifying amendment that did not substantively change the
section of the Sentencing Guidelines. Importantly, Mitchell
was held accountable only for her personal and direct
involvement in the conspiracy. (Doc. 16, p. 14) Specifically,
her leading role in the cashing of the fraudulent tax refund
checks. (Id.) Since a minor role reduction is based
on establishing that a defendant's role was minor when
compared to the relevant conduct attributed to the defendant,
reasonable jurists would not find debatable the Court's
decision to dismiss this claim.
none of the claims raised in Mitchell's § 2255
petition meet the threshold. Accordingly, Mitchell is not
entitled to a Certificate of Appealability.
appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good
faith.” 28 U.S.C. § 1915(a)(3). Good faith is
shown by “seeking appellate review of any issue that is
not frivolous when examined under an objective
standard.” Ghee v. Retailers National Bank,
271 Fed.Appx. 858, 859-860 (11th Cir. 2008) (per curiam)
(unpublished) (citing Coppedge v. United States, 369
U.S. 438, 445, 82 S.Ct. 917, 921 (1962)). An action is
frivolous, and consequently not brought in good faith, if it
is “without arguable merit either in law or
fact.” Ghee, 271 Fed.Appx. at 859-860 (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001)). “[A]rguable means capable of being convincingly
argued.” Ghee, 271 Fed.Appx. at 860 (quoting
Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991)
(internal quotations and citations omitted)). Also, if a
“claim is arguable, but ultimately will be
unsuccessful, it should be allowed to proceed.”
Ghee, 271 Fed.Appx. at 860 (citation omitted).
consideration of the issues addressed herein, the Court finds
that any appeal by Mitchell of the denial and dismissal of
her § 2255 motion would be without merit and therefore
not taken in good faith. ...