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Mitchell v. United States

United States District Court, M.D. Alabama, Eastern Division

April 2, 2019

TRACY MITCHELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker United States Magistrate Judge

         Before the court is Tracy Mitchell's pro se motion for relief under 28 U.S.C. § 2255. Doc. 1.[1] After considering the parties' submissions, the record, and the applicable law, the court finds that Mitchell's § 2255 motion should be denied without an evidentiary hearing. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         I. INTRODUCTION

         On March 30, 2015, Mitchell pled 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; wire fraud, in violation of 18 U.S.C. § 1343; and aggravated identity theft, in violation of 18 U.S.C. § 1028A. Mitchell's convictions stemmed from her role as a leader of 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 convictions and sentence, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct.

         Following a sentencing hearing on August 7, 2015, the district court sentenced Mitchell to 159 months in prison, consisting of concurrent terms of 120 months on the conspiracy count and 135 months on the wire fraud and a term of 24 months on the identity theft count, to run consecutively.

         After Mitchell filed a pro se notice of appeal, counsel from the Federal Defender's Office was appointed to represent her on appeal. After the Federal Defender consulted with Mitchell, Mitchell moved to dismiss her appeal, and the appeal was dismissed.

         In December 2017, the United States filed a motion to reduce Mitchell's sentence under Federal Rule of Criminal Procedure 35(b), based on Mitchell's substantial assistance in the prosecution of other persons. That motion was granted, and on December 15, 2017, the district court reduced Mitchell's term of imprisonment to 135 months.[2]

         On October 18, 2106, Mitchell filed this § 2255 motion[3] asserting claims that her counsel was ineffective for (1) failing to properly investigate her case to obtain information showing she was not physically present at home, but instead was at work, when many of the fraudulent tax returns were filed from her home; (2) disclosing her privileged statements in a meeting with her codefendants' lawyers and failing to schedule a second proffer with the Government; (3) failing to present successful arguments at sentencing regarding the loss amount attributed to her and regarding the abuse-of-trust and leadership-role enhancements applied to her; and (4) failing to pursue an issue on appeal regarding the loss amount attributed to her. Doc. No. 1 at 4-8; Doc. No. 2 at 9-22.

         II. DISCUSSION

         A. General Legal Standard

         Because 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 secure 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.”

         B. Ineffective Assistance of Counsel

         A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 689. Second, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

         Scrutiny of counsel's performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Id.

         As noted, under the prejudice component of Strickland, a petitioner 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. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.

         Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can “establish ... that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker[.] Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2nd Cir. 1994).

         1. Counsel's Failure to Investigate

         Mitchell claims her trial counsel rendered ineffective assistance by failing to properly investigate her case to obtain information showing she was not physically present at home, but instead was at work, when many of the fraudulent tax returns were filed from her home. Doc. No. 1 at 4; Doc. No. 2 at 9. Mitchell argues that her counsel should have subpoenaed attendance records from her employer to support such a claim, which she says would have resulted in a smaller amount of loss being attributed to her at sentencing.[4] Doc. No. 2 at 9.

         Mitchell's argument is predicated on her apparent belief that the district court should have held her responsible only for the returns she personally filed. However, a court may hold participants in a conspiracy responsible for the losses resulting from the reasonably foreseeable acts of coconspirators in furtherance of the conspiracy. 5 United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010). Mitchell admitted in her plea agreement that she and her coconspirators filed fraudulent tax returns from her home, and the evidence established that she was aware that her coconspirators were filing fraudulent tax returns from her home. Doc. No. 12-3 at 10, ¶ 19.f. Thus, those acts by her coconspirators were reasonably foreseeable and attributable to her as part of the conspiracy.[6]

         At sentencing, both the Government and the U.S. Probation Office argued that the loss attributable to Mitchell was approximately $18 million, the total amount claimed through the fraudulent tax returns filed in the conspiracy. [7] Doc. No. 12-7 at 13 & 29-30; Doc. No. 12-5 at 18, ¶ 57, & 23, ¶ 71. Mitchell's counsel, however, advocated for limiting the loss attributable to Mitchell to approximately $2.3 million, the amount claimed through fraudulent tax returns filed from Mitchell's home. Doc. No. 12-7 at 11-12; Doc. No. 12-8 at 3-4. In making this argument in his objections to the PSI, Mitchell's counsel noted that several other members of the conspiracy filed returns from Mitchell's home and that those returns were included in the $2.3 million. Doc. No. 12-8 at 3 n.2.

         The district court rejected the argument that the loss attributable to Mitchell should be limited to the $2.3 million in fraudulent tax returns filed from Mitchell's home, finding that the loss attributable to Mitchell exceeded $2.5 million, an amount including the fraudulent tax returns filed from Mitchell's home and loss amounts generated through other aspects of the conspiracy, including ...


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