United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge.
the court is Latasha Marshay Mitchell's pro se
motion for relief under 28 U.S.C. § 2255. Cv. Doc.
March 30, 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). 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. Cv. Doc. 4-2 at 6-7. Following a sentencing
hearing on August 7, 2015, the district court sentenced
Mitchell to 36 months in prison, consisting of 12 months on
the conspiracy count and 24 months on the identity theft
count, the terms to run consecutively. Cv. Doc. 4-3 at 2.
Mitchell did not appeal.
25, 2106, Mitchell filed this § 2255 motion asserting
that she is entitled to a mitigating role reduction to her
sentence based on Amendment 794 to § 3B1.2 of the
Sentencing Guidelines. For the reasons that follow, the
Magistrate Judge recommends that Mitchell's § 2255
motion be denied without an evidentiary hearing and that this
case be dismissed with prejudice.
General Legal Standard
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). The “fundamental
miscarriage of justice” exception recognized in
Murray v. Carrier, 477 U.S. 478, 496 (1986),
provides that it must be shown that the alleged
constitutional violation “has probably resulted in the
conviction of one who is actually innocent.”
Amendment 794 to U.S.S.G. § 3B1.2
contends she is entitled to a retroactive mitigating role
reduction to her sentence based on the November 1, 2015
amendment (Amendment 794) to U.S.S.G. § 3B1.2. Cv. Doc.
1 at 4; Cv. Doc. 2.
3B1.2 of the Sentencing Guidelines provides that a
defendant's offense level should be decreased as follows:
(a) If the defendant was a minimal participant in any
criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal