United States District Court, S.D. Georgia, Statesboro Division
on her guilty plea and sentenced to 69 months plus $12,
434.92 restitution for wire fraud conspiracy (18 U.S.C.
§ 1349), theft of public money (18 U.S.C. § 641),
and aggravated identity theft (18 U.S.C. § 1028A), doc.
33, Santana Lundy filed a "Motion to Challenge Said Loss
as Oppose [sic] to Intended Loss, Ineffective Assistance of
Counsel" doc. 49, following her unsuccessful direct
appeal, docs. 47 & 48. Lundy claims that her sentence is
too long because, in calculating it under the U.S. Sentencing
Guidelines, the District Judge wrongly considered her the
"master mind" of the conspiracy, and held her
responsible for her coconspirator's
conduct. Doc. 52 at 2-3. She also suggests that her
appellate counsel was ineffective. She wants the Court to
"reconsider" the sentence. Id. at 3 (she
requests, in unedited form, that the Court "not hold her
in account to the loss in which she was not a part of a ghost
amount should not be attributable to petitioner and should be
attributable to Spaulding alone . . . .").
alleged errors (confusing someone else's criminal conduct
with movant's), when blended with an ineffective
assistance claim, land Lundy squarely in § 2255
territory. As the Government correctly contends, this Court
must consider the substance of Lundy's motion, regardless
of its label, and "[t]he only possible avenue for relief
for Lundy at this point would be 28 U.S.C. § 2255."
Doc. 51 at 2 (citing United States v. Stossel, 348
F.3d 1320, 1322 n. 2 (11th Cir. 2003); 28 U.S.C. §
Lundy has in substance filed a § 2255 motion, the Court
must warn her under Castro v. United States, 540
U.S. 375, 383 (2003) ("[W]hen a court recharacterizes a
pro se litigant's motion as a first § 2255
motion . . . [it] must notify [her] that it intends to
recharacterize the pleading, warn [her] that this
recharacterization means that any subsequent § 2255
motion will be subject to the restrictions on 'second or
successive' motions, and provide the litigant an
opportunity to withdraw the motion or to amend it so that it
contains all the § 2255 claims [she] believes [she]
Within 30 days from the date this Order is served, the Court
will re-characterize your motion (doc. 52) as one falling
under 28 U.S.C. § 2255. If you choose to proceed, you
will lose your ability to file any successive motion on this
same matter without first seeking permission to do so from
the Eleventh Circuit. Any second or successive motion will be
subject to the restrictive conditions set forth in 28 U.S.C.
§ 2244(b)(2), conditions which do not apply to a
first § 2255 motion.
You may: (1) have your motion ruled upon; (2) amend it (or
replace it outright) to include any other claims; or (3)
withdraw it entirely. You have thirty days to decide what you
want to do. If you do not thereafter affirm, supplement, or
replace your original motion or notify this Court of your
intent to withdraw it, the Court will proceed to rule on it
as a § 2255 motion.
§ 2255 motion "must be signed under penalty of
perjury." Rule 2(b)(5), Rules Governing Section 2255
Proceedings for the United States District Courts. Since
Lundy has not signed her motion, the Clerk is DIRECTED to
attach to Lundy's service copy of this Order this
Court's standard form 28 U.S.C. § 2255 motion. She
should use that form to set out, in one document, all of her
claims for § 2255 relief.
she may simply (by using one page with the caption of this
case at the top) inform the Court that she wishes to withdraw
her motion. But if she wants to proceed under § 2255,
then she must fully complete the form motion. That
means answering each question (writing "N/A" is
unacceptable). And again, Lundy should present all
of her claims for § 2255 relief at this point, as second
or successive § 2255 petitions have little chance of
success. She must place her response in her prison's mail
system (and, if she presses onward under § 2255, she
must declare that he has done so under penalty of perjury,
per 28 U.S.C. § 1746) within 30 days after this Order is
 Her claim is strikingly similar to the
argument she raised in her appeal, and which the Eleventh
Circuit rejected. See doc 47 (U.S. v.
Lundy, 601 F.App'x 859 (11th Cir. 2015)). That court
Contrary to . .. Lundy's claim, the district court
did not place undue weight on her connection with Spaulding.
Because the fraud was primarily perpetrated by Spaulding,
Lundy's connection to Spaulding was appropriately viewed
by the district court as part of the nature and
circumstances, and the weight accorded to that factor was
within the district court's discretion.
Id. at 864.
 The only direct assertion of
ineffective assistance of counsel is in the title of the
motion. Doc. 49 at 1. Lundy suggests ineffective assistance
in her assertion that her "attorney stated that she was
arguing [presumably in Lundy's appeal] that the District
Court's imposition of a 12-month upward variance was
substantively unreasonable[, ] when in fact the entire
sentence was questionable." Id. at 2. She also
complains that she "was told that the sentence that she
would receive was far lessor [sic] than the one she
received." Id. It is not clear who she contends
told her she would receive a shorter sentence than she did.
The sentence is, however, less than the maximum sentences in
her plea agreement, where she also stated ...