United States District Court, N.D. Georgia, Atlanta Division
INGER L. JENSEN, Movant,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation 
(“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
 (“Motion to Vacate”). Also before the Court
are Movant's Objections to Magistrate Judge's Report
and Recommendation  (“Objections”).
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). (See
generally Superseding Indictment ). 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”).” ( at 1-2). On April 25,
2011, Movant pled not guilty, and, on May 7, 2012, she
proceeded to trial with her husband. (, ). 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. (). On August
22, 2012, the Court entered judgment and sentenced Movant to
168 months imprisonment. (). On July 31, 2014, the
Eleventh Circuit Court of Appeals affirmed the judgment.
(, ); see also United States v.
Jensen, 573 Fed.Appx. 863 (11th Cir. 2014).
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.
(See generally ). 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. (). On March 22, 2016,
Movant filed her Objections  to the Final
R&R. 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 ).
28 U.S.C. § 2255 Motion
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).
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).
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.
Magistrate Judge's Report and Recommendation
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.
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.
De Novo Review
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 ...