United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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
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
Indictment & Written Plea Agreement
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).
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).
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).
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).
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).
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).
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 ¶
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).
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
Section 2255 Motion
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 ...