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Hollis v. United States

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

November 19, 2018

LOTOSHIA SHERVELL HOLLIS, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Petitioner Lotoshia Hollis's pro se motion to vacate, set aside, or correct sentence under Title 28 U.S.C. § 2255. (Doc. 1). Ms. Hollis, a federal prisoner who pled guilty to conspiracy to defraud the government, contends that the court should vacate her sentence because of eight claims of ineffective assistance of counsel. (Doc. 1 at 4). The court will DENY seven of those claims that lack merit, and will RESERVE this matter for an evidentiary hearing only on Ms. Hollis's claim that her attorney failed to file an appeal as instructed.

         I. BACKGROUND

         Ms. Hollis's § 2255 petition is narrow. She brings claims only for ineffective assistance of counsel-she does not challenge her plea, conviction, or sentence. Accordingly, the court will present only background information on Ms. Hollis's criminal case relevant to ineffective assistance of counsel.

         A. Indictment & Written Plea Agreement

         On December 27, 2013, a federal Grand Jury indicted Ms. Hollis and two others-Angela Gernial Bennett and Kennethea Leshelle Parks-for conspiracy to defraud the government by filing false claims for income tax refunds in violation of 18 U.S.C. § 286. (No. 2:13-cr-0508-KOB, “Crim. Doc.”, Doc. 1 at 1). In addition, the Grand Jury indicted Ms. Hollis on 11 counts of filing false claims against the United States in violation of 18 U.S.C. § 287. (Crim. Doc. 1 at 4-5).

         Attorney Katherine Luker represented Ms. Hollis in her criminal case. In a written plea agreement executed on July 22, 2014, Ms. Hollis agreed to plead guilty to the count of conspiracy to defraud the government. (Crim. Doc. 43). On motion of the United States, the court dismissed the 11 counts of filing false claims. (Crim. Doc. 67).

         In the plea agreement, Ms. Hollis stipulated that she, Ms. Bennett, and Ms. Parks obtained personally identifiable information from others to file fraudulent tax returns. (Crim. Doc. 43 at 2-3). In 2009, Ms. Hollis and her confederates filed at least 30 false tax returns claiming more than $150, 000 in refunds. (Id. at 3). In 2010, Ms. Hollis filed at least 118 false tax returns claiming refunds of $747, 119. (Id. at 4-5).

         The plea agreement provides one example of how Ms. Hollis carried out her role in the criminal enterprise. Ms. Hollis obtained personally identifiable information from a person identified as L.G.W. III under the auspices that she would prepare his tax return on his behalf. Instead, she used L.G.W. III's information to file a fraudulent tax return for the benefit of the conspiracy. When L.G.W. III did not receive his tax refund, he confronted Ms. Hollis. Ms. Hollis advised him to be patient but then stopped communicating with him. (Crim. Doc. 43 at 4).

         The plea agreement included an appeal waiver that stated:

I, Latoshia Shervell Hollis, hereby waive and give up my right to appeal my conviction and/or sentence in this case, as well as any fines, restitution, and forfeiture orders, the Court might impose. Further, I waive and give up the right to challenge my conviction and/or sentence . . . in any post-conviction proceeding, including, but not limited to, a motion brought under 28 U.S.C. § 2255.

(Crim. Doc. 43 at 9).

         The appeal waiver included three exceptions. Ms. Hollis reserved the right to contest in an appeal or post-conviction proceeding any sentence imposed in excess of the statutory maximum, sentence imposed in excess of the guideline sentencing range, and claims of ineffective assistance of counsel. (Crim. Doc. 43 at 9).

         B. Sentencing

         A probation officer prepared a presentence investigation report (“PSR”) for Ms. Hollis. Using the 2014 Guidelines Manual, Ms. Hollis's advisory guideline range was 100 to 120 months' imprisonment. Her guideline range included a two-level increase in offense level for being “an organizer, leader, manager, or supervisor of the criminal activity, ” U.S.S.G. § 3B1.1(c), because the PSR described Ms. Hollis as “the mastermind and main filer of false tax returns in this conspiracy and she also received larger proceeds from the crime . . . .” (PSR at ¶ 42).

         Ms. Hollis objected to the two-level increase, asserting that her actions did not rise to the level of being an organizer, leader, manager, or supervisor of the criminal activity, and that she acted on instructions from other individuals not named in the conspiracy. (Doc. 56 at ¶ 2).

         On January 12, 2015, this court conducted a sentencing hearing and overruled Ms. Hollis's objection to the two-level increase and adopted the PSR's recommendations. In doing so, the court found that Ms. Hollis's actions met the Guidelines standards for the “organizer, leader, manager, or supervisor” enhancement. The court sentenced Ms. Hollis to 100 months' imprisonment. (Crim. Doc. 67 at 1-2). Ms. Hollis did not appeal her conviction or sentence.

         C. Section 2255 Motion

         Ms. Hollis timely brought her § 2255 motion on December 14, 2015. (Doc. 1). In it, she states “Ineffective Assistance of Counsel” as Ground One, and underneath Ground One lists eight “supporting facts”:

1. failure to file an appeal as instructed;
2. failure to disclose favorable evidence;
3. failure to call mitigating witnesses at sentencing;
4. failure to follow “obvious and apparent leads” that implicated other ...

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