United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
of food stamp fraud crimes after a jury trial, Rashella Reed
seeks reduction of her sentence under 28 U.S.C. § 2255.
Doc. 200 (indictment); doc. 322 (jury verdict), doc. 359
(judgment for 168 months' imprisonment); see
doc. 410 at 12 (stating she "wants her
sentence to be corrected to the 0-6 months guideline
was indicted for conspiring, along with two codefendants and
others, to purchase illegally more than $5 million in
benefits from the Supplemental Nutrition Assistance Program
(SNAP) and the Georgia Women, Infants, and Children (WIC)
program for cash at thirteen stores in five Georgia counties.
She was charged with conspiring to use interstate wire
communications to execute a fraudulent scheme in violation of
18 U.S.C. § 1349, and conspiring to launder money in
violation of 18 U.S.C. § 1956. Doc. 200.
jury found Reed and her codefendants guilty of both charges,
docs. 313 & 322, the Court sentenced her to 168
months' imprisonment. Doc. 359. On her unsuccessful
appeal, she argued that the trial court abused its discretion
by denying her joint motion for funds to hire an
investigator. United States v. Reed, et al., 592
F.App'x 759 (11th Cir. 2014).
presents three grounds for relief: (1) that her Tenth
Amendment rights were violated when she was sentenced
pursuant to the facts of the PSR, rather than facts
"proven beyond a reasonable doubt by a jury"; (2)
that the Government knowingly used her codefendants'
false and misleading statements against her; and (3)
ineffective assistance of counsel during trial. Doc. 410 at
4, 5, 6 & 8.
Facts & Statements
contends that the Court impermissibly relied upon her PSR at
sentencing, and used her codefendants' statements against
her despite the fact that they were inaccurate. Doc. 410 at 4
& 6. A prisoner seeking collateral relief "must
clear a significantly higher hurdle than would exist on
direct appeal." United States v. Frady, 456
U.S. 152, 166 (1982). Generally, where a movant seeks
collateral relief based on trial errors to which no
contemporaneous objection was made at trial, id. at
167-68, or on direct appeal, "it will be procedurally
barred in a § 2255 challenge." United States v.
Montano, 398 F.3d 1276, 1279-80 (11th Cir. 2005) (citing
Mills v. United States, 36 F.3d 1052, 1055 (11th
Cir. 1994)). "A ground of error is usually
'available' on direct appeal when its merits can be
reviewed without further factual development."
Mills, 36 F.3d at 1055. In other words, a movant may
not use his collateral attack as "a surrogate for a
direct appeal." Lynn v. United States, 365 F.3d
1225, 1232 (11th Cir. 2004) (cite omitted). A procedural
default may be overcome if the movant can show "cause
excusing his failure to raise the issue previously and
prejudice from the alleged error." United States v.
Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000).
Ineffective assistance of counsel (IAC) "may satisfy the
cause exception to the procedural bar, " though such a
claim "must have merit" to qualify. Id. at
Reed's first and second claims were not raised
on appeal, they are procedurally barred. See Reed,
592 F.App'x 759. And her associated, meritless IAC claims
do not overcome that bar because, as discussed below, they
are meritless. Montano, 398 F.3d at 1280;
Lynn, 365 F.3d at 1232. She otherwise offers no
explanation for her default, instead asserting that the
"evidence will show that [she] should
not have been responsible for the
government's assumptions" and that the Court erred
by "appl[y]ing enhancements based on the mere
assumptions of the probation officer's conclusory
statement(s)." Doc. 428 at 3. These allegations,
however, do not excuse the procedural bar, and Reed fails to
point to anything in the record supporting her conclusory
statement that the Court committed a "miscarriage of
justice." See id.
Ineffective Assistance of Counsel
contends her counsel was ineffective for failing to: (1) get
her funding to hire an investigator; (2) secure witnesses to
combat the victim sentencing enhancement applied by the
Court; (3) fully investigate her case; and (4) failing to
"submit to proper District Judge in a timely
manner." Doc. 410 at 5 & 8.
prevail on a claim of ineffective assistance of counsel, a
prisoner must prove that his counsel rendered deficient
performance and that he was prejudiced by the deficient
performance." Castillo v. United States, 816
F.3d 1300, 1303 (11th Cir. 2016) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). "[C]ounsel
is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at
690. "For performance to be deficient, it must be
established that, in light of all the circumstances,
counsel's performance was outside the wide range of
professional competence." Putman v. Head, 268
F.3d 1223, 1243 (11th Cir. 2001).
the prejudice prong, a defendant 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; Matire v. Wainwright, 811 F.2d 1430, 1434 (11th
Cir. 1987) (same); see also Butcher v. United
States, 368 F.3d 1290, 1293 (11th Cir. 2004)
("[A]ttorney errors come in an infinite variety and are
as likely to be utterly harmless in a particular case as they
are to be prejudicial. That the errors had some
conceivable effect on the outcome of the proceeding
is insufficient to show prejudice.").