United States District Court, N.D. Georgia, Atlanta Division
EMORY HARRIS, BOP Reg. # 67214-019, Movant,
UNITED STATES OF AMERICA, Respondent.
MAGISTRATE JUDGE'S FINAL REPORT AND
RECOMMENDATION MOTION TO VACATE 28 U.S.C. §
CLAY FULLER, UNITED STATES MAGISTRATE JUDGE.
has filed a 28 U.S.C. § 2255 motion challenging the
Court's order that he pay restitution (Doc. 8); the
government has responded (Doc. 11); and Movant has not
replied within the time allowed for him to do so.
March 4, 2015, Movant and three others were indicted for
conspiracy to commit tax fraud and for filing false claims
for tax refunds. (Doc. 11 at 1 (citing United States v.
Harris, 1:15-cr-73-TWT-CMS (Case # 1))). In the case at
[Movant] and the government reached a resolution whereby [he]
waived indictment and pled guilty to a criminal information
[(Doc. 3; see Doc. 1)]. The negotiated charge was
one count of obstructing the Internal Revenue Service under
26 U.S.C. § 7212, an offense with a 3-year statutory
maximum capping his exposure below that in the indictment [in
Case # 1, which was later dismissed as part of Movant's
plea deal] . . . . In his plea agreement, as part of the
consideration for the plea to a favorable charge, [Movant]
“agree[d] to pay full restitution to the Clerk of Court
for distribution to all victims of the offense to which he is
pleading guilty” in an amount to be determined at
sentencing. [(Doc. 3-1 ¶ 24)]. On July 26, 2016,
[Movant] entered his guilty plea to the information.
(Id. at 2). The information stated that Movant
“caused to be made and presented to the United States
Treasury Department a claim against the United States for
payment of a refund of taxes to C.L. in the amount of $435,
990, which [Movant] well knew to be false, fictitious and
fraudulent, in that C.L. was not entitled to a tax refund in
this amount.” (Doc. 1). On November 10, 2016, Movant
received a 24-month sentence and was ordered to pay $435, 990
in restitution to the Internal Revenue Service. (Doc. 11 at
1, 2 (see Doc. 6)).
challenges only “the decision by the district court
regarding [his] obligation of restitution, ” and claims
that his trial counsel was ineffective for failing to bring
to the Court's attention at sentencing a recent Supreme
Court case “referencing a restitution situation similar
to [his, which] would have given [him] a different
outcome.” (Doc. 8 at 4-5).
prevail on a claim of ineffective assistance, a defendant
establish two things: (1) “counsel's performance
was deficient, ” meaning it “fell below an
objective standard of reasonableness, ” and (2)
“the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S.
668, 687-88 (1984). To satisfy the deficient-performance
prong, the defendant must show that counsel made errors so
serious that he was not functioning as the counsel guaranteed
by the Sixth Amendment. Id. at 687. The defendant
must rebut the strong presumption that his counsel's
conduct fell within the range of reasonable professional
assistance. Id. at 689.
Connolly v. United States, 568 Fed.Appx. 770, 770-71
(11th Cir. 2014).
government argues that Movant's § 2255 motion fails
because it is well-established in this Circuit that
“challenges to restitution are not cognizable in a
§ 2255 proceeding.” (Doc. 11 at 3 (citing
Mamone v. United States, 559 F.3d 1209, 1211 (11th
Cir. 2009), for its holding that “a challenge to
restitution [is] not properly raised in a § 2255 motion
because § 2255 motions apply [only] to prisoners
challenging their custody”)); see Smith v. United
States, 16-17412-B, 2017 U.S. App. LEXIS 25726, at *3-4
(11th Cir. Sept. 7, 2017) (citing Mamone and denying
a certificate of appealability because “granting a
restitution reduction would be taking an action not
authorized by the plain language of [§ 2255 - ] a
restitution reduction [does] not constitute a release from
government also notes that the Supreme Court case to which
Movant refers, Honeycutt v. United States, 137 S.Ct.
1626 (2017), was decided on June 5, 2017, seven months
after Movant's sentencing. (Doc. 11 at 3). And
at issue in Honeycutt was not restitution but rather
forfeiture under a criminal statute applicable to drug
offenses, 21 U.S.C. § 853, which the Supreme Court held
does not make a defendant “jointly and severally liable
for property that his co-conspirator derived from the crime
but that the defendant himself did not acquire.”
Honeycutt, 137 S.Ct. at 1630. (See Doc. 11
at 4 (noting that courts distinguish restitution - authorized
by the Mandatory Victim Restitution Act of 1996, intended to
make crime victims whole - from forfeiture statutes, which
require that defendants forfeit their criminal proceeds)).
government argues further that “[d]efense counsel could
not be expected to anticipate a Supreme Court decision on an
issue which had not even been argued when her client was
sentenced or to raise the issue in a matter where no
forfeiture was at issue.” (Id. at 5). Finally,
the government argues that “[a]s for any injustice,
[Movant] is and should be jointly liable ...