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Jensen v. United States

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

June 12, 2018

INGER L. JENSEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation [294] (“Final R&R”), recommending denial of Inger L. Jensen's (“Movant”) Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [276] (“Motion to Vacate”). Also before the Court are Movant's Objections to Magistrate Judge's Report and Recommendation [296] (“Objections”).

         I. BACKGROUND

         On April 12, 2011, Movant was indicted, along with her husband, Andrew S. Mackey, by a grand jury on the following charges: (1) attempt and conspiracy to commit fraud, 18 U.S.C. § 1349 (count one); (2) wire fraud, 18 U.S.C. § 1343 (counts two through eight); and (3) mail fraud, 18 U.S.C. § 1341 (counts nine through seventeen).[1] (See generally Superseding Indictment [54]). The charges “stemmed from allegations that the two operated a Ponzi scheme which defrauded members of the public who invested in A.S.M. Financial Funding Corporation's (“ASM”) Wealth Enhancement Club and Wealth Enhancement Club II (jointly referred to as the “Wealth Enhancement Club”).” ([276] at 1-2). On April 25, 2011, Movant pled not guilty, and, on May 7, 2012, she proceeded to trial with her husband. ([64], [130]). Movant was represented by Vernon Smith (“Mr. Smith”), appointed counsel, at trial. (Id.). On May 16, 2012, the jury returned a verdict of guilty on counts one through four, six, and eight through seventeen. ([144]). On August 22, 2012, the Court entered judgment and sentenced Movant to 168 months imprisonment. ([188]). On July 31, 2014, the Eleventh Circuit Court of Appeals affirmed the judgment. ([268], [271]); see also United States v. Jensen, 573 Fed.Appx. 863 (11th Cir. 2014).

         On April 17, 2015, Movant timely filed her Motion to Vacate. In it, she raises five grounds for relief-all of which relate to the alleged ineffective assistance of her trial counsel, Mr. Smith. The grounds include:

1. Counsel was ineffective for failing to file a pre-trial motion to sever;
2. Counsel was ineffective for failing to obtain and communicate a pre-trial plea offer;
3. Counsel was ineffective for failing to fulfill his duty to investigate and present evidence that Defendant actually believed that no crime was being committed;
4. Counsel was ineffective for failing to object to the four-point enhancement applied under U.S.S.G. § 2B1.1(b)(18) on the grounds that the offense conduct did not violate securities laws; and
5. Counsel was ineffective for failing to object and correct the restitution amount attributable to Movant and requesting to lower the amount to $6, 650, 067.[2]

(See generally [276]). On March 9, 2016, the Magistrate Judge issued her Final R&R, finding that Movant failed to meet the significant burden imposed by a § 2255 motion to vacate. ([294]). On March 22, 2016, Movant filed her Objections [296] to the Final R&R.[3] Movant claims the Magistrate Judge erred when she found (1) Movant's counsel's failure to obtain and communicate a pre-trial plea offer did not constitute ineffective assistance of counsel; (2) Movant's argument regarding her counsel's failure to investigate and present evidence that she actually believed no crime was being committed was without merit; and (3) Movant's argument that her counsel was constitutionally deficient for failing to object to the “violation of securities laws” enhancement was barred from habeas review. (See generally [296]).

         II. LEGAL STANDARDS

         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). Collateral relief, however, is limited. It is well-settled 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). The movant bears the burden of persuasion, which “is supposed to be a heavy one.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         Matters decided on direct appeal cannot be re-litigated under § 2255, and matters that could have been raised on direct appeal, but were not, are generally foreclosed. Hidalgo v. United States, 138 Fed.Appx. 290, 291 (11th Cir. June 29, 2005) (citing Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). Thus, § 2255 relief “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” Lynn, 365 F.3d at 1232 (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (internal quotation marks omitted). A constitutional claim of ineffective assistance of counsel generally is properly raised on collateral review in order to allow for adequate development and presentation of relevant facts. Massaro v. United States, 538 U.S. 500, 505-09 (2003). “An evidentiary hearing is not required when ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (quoting § 2255).

         Claims for ineffective assistance of counsel-like those asserted by Movant here-are evaluated under the standards set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The first part of the inquiry requires the court to determine whether counsel's performance fell “below an objective standard of reasonableness.” Id.at 688. The court must then assess whether counsel's performance prejudiced the defendant. Id. In other words, the court must ask whether there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.; see also 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) (“‘[A]ctual prejudice' is ‘not merely that the errors at [the defendant's] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” (quoting Frady, 456 U.S. at 170)). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

         B. Magistrate Judge's Report and Recommendation

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Where, as here, a party has filed objections to some, but not all, of the Magistrate Judge's findings, the Court conducts a combined review.

         III. DISCUSSION

         Movant only objects to the Magistrate Judge's findings with respect to grounds two, three, and four of the Motion to Vacate, so the Court need only conduct a de novo review of these portions. The Court conducts a plain error review of the remainder of the Final R&R.

         A. De Novo Review

         The Court reviews de novo the following of Movant's arguments: (1) counsel was ineffective for failing to obtain and communicate a pre-trial plea offer; (2) counsel was ineffective for failing to fulfill his duty to investigate and present evidence that Defendant actually believed that no crime was being committed; and (3) counsel was ineffective for failing to object to the four-point enhancement ...


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