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Morrow v. United States

United States District Court, N.D. Georgia, Atlanta Division

May 18, 2018




         This matter is before the Court on Magistrate Judge Justin S. Anand's Final Report and Recommendation [43] (“Final R&R”), recommending denial of Bryan Morrow's (“Movant”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [39] (“Motion to Vacate”).

         I. BACKGROUND[1]

         In August 2014, Movant was indicted by a grand jury on the following charges: conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (count 1); bank fraud, in violation of 18 U.S.C. § 1344 (counts 2-6); and production and transfer of a false identification document, in violation of 18 U.S.C. § 1028(a)(1)-(2) (counts 7-14). (See generally Indictment with Forfeiture Provision (“Indictment”) [9]). On November 3, 2014, Movant entered into a non-negotiated guilty plea to all charges. ([22], [37]). In anticipation of his sentencing, Movant, in his sentencing memorandum, objected to his Pre-Sentence Report's (“PSR”) recommendation of a 16-level increase above a base offense level of 7. ([27] at 3). Movant argued that the § 2B1.1 fraud guideline “includes a loss table which fails to reflect to any degree the disparity which exists in the instant case between the amount of loss that potentially could have occurred and the actual profit to [Movant of no more than $8, 500].” (Id. at 6, 8). Movant stated that “[t]his disparity of as much as 14 levels warrants a downward departure . . . .” (Id. at 8). On January 15, 2015, the Court sentenced Movant to forty-one months imprisonment. ([30]).

         Movant did not file a direct appeal. On January 13, 2016, Movant timely filed his Motion to Vacate. In it, he raises three grounds for relief, including:

1. An amendment to the Sentencing Guidelines, enacted after Movant's judgment of conviction became final, should reduce his loss enhancement by 4 levels and his sentencing range to 27-33 months;
2. The government did not demonstrate that he subjectively intended the calculated loss or that he acted recklessly; and
3. The agent who conducted the government sting operation engaged in manipulation of the loss amount.

([39] at 4; see id. at 14-16 (attachment to § 2255 motion containing a portion of Amendment 791 to the Sentencing Guidelines)). On May 11, 2016, the Magistrate Judge issued his Final R&R, finding that the above three grounds were procedurally defaulted.


         A. 28 U.S.C. § 2255 Motion

         Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate his sentence “upon the ground[s] that the sentence was imposed in violation of the Constitution or laws of the United States, [] that the court was without jurisdiction to impose such sentence, [] that the sentence was in excess of the maximum authorized by law, or [that the sentence] is otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a). It is well-settled, however, that “to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). “[N]onconstitutional claims can be raised on collateral review only when the alleged error constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.'” Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998) (quoting Reed v. Farley, 512 U.S. 339, 348 (1994) (internal quotations omitted)).

         “[A]n available challenge to a criminal conviction or sentence must [typically] be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding. A ground of error is usually ‘available' on direct appeal when its merits can be reviewed without further factual development.” Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994) (citation omitted); see also Fordham v. United States, 706 F.3d 1345, 1349 (11th Cir. 2013) (“Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction on direct appeal or else the defendant is barred from raising that claim in a [collateral] proceeding.”). In those cases in which a defendant fails to pursue an available claim on direct appeal, § 2255 relief is unavailable unless the defendant shows (1) cause for the default and actual prejudice resulting from an alleged error, or (2) actual innocence. Mills, 36 F.3d at 1055; see also McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).

         To establish cause, a movant must show either that his counsel's assistance was so ineffective that it violated his Sixth Amendment right to counsel or “that some objective factor external to the defense impeded counsel's efforts to comply with the . . . procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “Ineffective assistance of counsel may satisfy the cause exception to a procedural bar. In order to do so, however, the claim of ineffective assistance must have merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (citation omitted). “To establish ‘prejudice, ' a [movant] must show that there is at least a reasonable probability that the result of the proceeding would have been different” had he presented his defaulted claim. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003); see Lynn v. United States, 365 F.3d 1225, 1235 n.21 (11th Cir. 2004) (noting that “cause and actual prejudice standard” for § 2255 motion “mirrors the standard used to evaluate collateral attacks on state convictions”); Reece v. United States, 119 F.3d 1462, 1467 (11th Cir. 1997) ...

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