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Reed v. United States

United States District Court, S.D. Georgia, Savannah Division

January 11, 2017

RASHELLA REED, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Convicted 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[1] at 12 (stating she "wants her sentence to be corrected to the 0-6 months guideline sentencing").

         A. BACKGROUND

         Reed 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.

         After a 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).

         B. ANALYSIS

         Reed 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.[2]

         1. Facts & Statements

         Movant 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 1344.

         Because 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.

         2. Ineffective Assistance of Counsel

         Reed 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.

         "To 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).

         As to 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.").

         a. ...


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