United States District Court, N.D. Georgia, Atlanta Division
LISA R. LEE, Movant,
UITED STATES OF AMERICA, Respondent.
TO VACATE 28 U.S.C. § 2255
FINAL REPORT AND RECOMMENDATION
T. WALKER UNITED STATES MAGISTRATE JUDGE.
is a federal prisoner who, pro se, challenges under 28 U.S.C.
§ 2255 her judgment of conviction. (Doc. 88 (original
§ 2255 motion); Doc. 208 (amended motion).) Movant
claims that her former counsel, W. Matthew Dodge, rendered
ineffective assistance at the investigation, plea,
sentencing, and appeal stages of this case. (Id.;
Doc. 208-1 (amended brief in support of§ 2255 motion).)
2014, the Court denied the § 2255 motion without
obtaining Respondent's position. (Doc. 112.) The Court
found that Movant had not shown the prejudice required to
prevail on her claims of ineffective assistance of counsel.
(Id.) But the Court addressed only one form of
prejudice Movant had alleged - that her sentence was longer
than it would have been absent Dodge's ineffectiveness.
(See Id. at 10.)
U.S. Court of Appeals for the Eleventh Circuit held that the
Court erred by not addressing the other forms of prejudice
Movant alleged in her § 2255 motion. (Doc. 163-1.)
"Liberally construing [Movant's § 2255] ...
motion, she also alleged prejudice from her counsel's
failures to challenge her indictment, provide her with
information relevant to her guilty plea, and make better
arguments on direct appeal." (Id. at 7.) The
court of appeals thus remanded the case for this Court
"to address, in the first instance, [Movant's] ...
claims of ineffective assistance in light of her various
allegations of prejudice," (id.), specifically
the "allegations of prejudice unrelated to the length of
her sentence," (id. at 13).
remand, the Court directed Respondent to file a response to
the amended § 2255 motion. (Doc. 182.) Respondent filed
a response opposing relief, in which it contends that Movant
has not shown prejudice for any of her claims. (Doc. 203.)
history of this case prior to the § 2255 proceedings is
thoroughly discussed in the Court's prior post-judgment
Order. (Doc. 112 at 1-7.) The Court will not repeat that
entire discussion here, but will briefly summarize it before
discussing Movant's claims.
Movant's second criminal case in this Court. In the first
case, Movant pled guilty to mortgage fraud and mail fraud and
was sentenced to eighteen months' imprisonment.
(Id. at 2.) In 2006, Movant left prison and began a
three-year term of supervised release. (Id.)
Immediately upon the commencement of her term of supervised
release, [Movant] engaged in an extensive and sophisticated
bank fraud and identity theft scheme from November 2006
through December 2008. On December 10, 2008, [Movant] was
arrested on a warrant listing a variety of violations of her
supervised release, and the Government moved to revoke
[Movant's] supervised release. At the revocation hearing,
the Government alleged thirteen violations of her supervised
release, all of which [Movant] admitted.
(Id.) The Court sentenced Movant to twenty-three
months' imprisonment for "her breach of trust in
violating the terms of her release" and "not  as
punishment for the underlying actions on which the revocation
was based." (Doc. 83 at 4.)
Movant was released from that imprisonment in August 2010, a
grand jury indicted her for those underlying actions,
resulting in this second criminal case. (Doc. 1.) The
indictment charged Movant with one count of conspiring to
commit bank, mail and wire fraud; one count of aiding and
abetting bank fraud; and one count of aggravated identity
indictment described a "complex and sophisticated fraud
scheme." (Doc. 112 at 3.) Movant
initiated the scheme by reactivating with the Georgia
Secretary of State the corporate status of a previously
dormant company, "A.B. Development." She then used
the A.B. Development business name to fraudulently acquire
credit using the identity of other corporations in Georgia
without the knowledge of the true owners of those
corporations. She initiated both new corporate registrations
in Georgia as well as Dun & Bradstreet credit information
for those corporations as a means of applying for new
corporate lines of credit with retailers and banks. She then
accessed this credit through purchases and cash withdrawals.
(Id. at 3-4 (citations omitted).)
August 2011, Movant pied guilty, without a plea agreement, to
all three counts of the indictment. (Doc. 59-1 (plea); Doc.
125 (transcript of plea hearing).) A few months later, the
Court sentenced Movant to ninety-seven months'
imprisonment for the conspiracy and bank fraud crimes and an
additional twenty-four months' imprisonment for the
aggravated identity theft crime, for a total of 121 months.
(Doc. 70 (judgment); Doc. 77 (transcript of sentencing
appealed, arguing only that her sentence was substantively
unreasonable. (Doc. 83.) The court of appeals rejected that
claim and affirmed the judgment. (Id.)
represented Movant throughout this case, from arraignment
through appeal. Movant contends that Dodge provided
ineffective assistance at every stage. The Court previously
listed the claims of ineffectiveness. (Doc. 112 at 9 n.3-6.)
Legal Standards For Relief Under 28 U.S.C. § Section
prevail on a § 2255 motion, the movant must demonstrate
that: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the Court was
without jurisdiction to impose such a sentence; (3) the
sentence exceeded the maximum sentence authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255. A sentence is subject to collateral
attack when there is a fundamental defect that results in a
complete miscarriage of justice. United States v.
Addonizio, 442 U.S. 178, 185 (1979). "To obtain
collateral relief, a [ movant] must clear a significantly
higher hurdle than would exist on direct appeal."
United States v. Frady, 456 U.S. 152, 166 (1982).
establish ineffective assistance of counsel, a§ 2255
movant must show that his counsel's performance was
deficient such that it was below objectively reasonable
standards, and that the deficient performance prejudiced the
movant. Strickland v. Washington, 466 U.S. 668, 688,
692 (1984). As for the first prong of the test, a court
should be "highly deferential" in scrutinizing
counsel's performance, Id. at 689, and
"must indulge the strong presumption that counsel's
performance was reasonable and that counsel made all
significant decisions in the exercise of reasonable
professional judgment," Chandler v. United
States, 218 F.3d 1305, 1314 (11th Cir. 2000). To
establish deficient performance, a movant must establish that
no objectively competent lawyer would have taken the action
that his lawyer took or would have failed to take the action
he contends the lawyer should have taken. Id. at
the second prong of the test, a court determines whether
counsel's challenged acts or omissions prejudiced the
movant, i.e., whether "there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Strickland, 466 U.S. at 694. "A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Id. A court need not address both
prongs of Strickland''s test if the movant
"makes an insufficient showing on one."
Id. at 697.
prior Order, the Court addressed Movant's claim that
Dodge's ineffective assistance at sentencing prejudiced
Movant by lengthening her sentence. (Doc. 112.) The Court
reaffirms those findings and now addresses Movant's
claims that she was prejudiced by Dodge's ineffectiveness
at the other stages of this case.
claims that Dodge failed to interview witnesses and subpoena
documents, investigate whether the case actually was
presented to a grand jury, obtain the file from Movant's
prior criminal case, show Movant all the evidence, and
challenge the indictment. (Doc. 208 at 4.) Movant does not
clearly identify the prejudice she allegedly suffered from
those failures, but a liberal construction of her § 225
5 filings suggests that the indictment would have been
dismissed and her sentence would have been shorter had Dodge
claims that the indictment should have been dismissed
because: (1) it was procedurally defective; (2) it failed to
allege an essential element of bank fraud; (3) Movant's
right to a speedy trial was violated; (4) Respondent used
immunized information obtained from Movant in proffer
sessions; and (5) Movant did not commit bank fraud as alleged
in the indictment. (Id.; Doc. 208-1 at 10-18, 30.)
Movant also alleged that she "suffered actual prejudice
from ... pre-indictment delay [before pleading guilty] by
having additional mental stress an[d] anguish regarding the
possibility of additional charges." (Doc. 208-1 at 20.)
has asserted the defense that Movant waived her claims of
ineffective assistance in the pre-plea stage by pleading
guilty. (Doc. 203 at 12.) The Court agrees that those claims
§ 2255 movant who entered a valid guilty plea waives any
pre-plea ineffective assistance claims that do not concern
[her] decision to enter the plea." Baird v. United
States, 445 Fed.Appx. 252, 254 (11th Cir. 2011); see
Wilson v. United States, 962 F.2d 996, 997 (11th
Cir. 1992) (holding that district court properly dismissed,
without an evidentiary hearing, § 2255 movant's
"claim of ineffective assistance ... involv[ing]
pre-plea issues" as waived by the guilty plea).
Movant's guilty plea waived her claims that Dodge
rendered ineffective assistance in pre-plea proceedings by
not obtaining dismissal of the indictment.
Movant's claims of pre-plea ineffectiveness were not
waived, Movant has not shown deficient performance by Dodge
or prejudice for the reasons explained in Respondent's
brief. (See Doc. 203 at 12-19.) Movant has never identified
any evidence that Dodge could have obtained from witnesses
(whom Movant also did not identify) that would have defeated
the charges in the indictment. Nor has she ever identified
any self-incriminating statements that she made to Respondent
to support her claim that Dodge should have sought dismissal
of the case for Respondent's use of immunized information
from Movant. Indeed, Movant asserts her innocence throughout
her § 225 5 filings and claims that she gave exculpatory
information to Respondent before pleading guilty. (See Doc.
208-1 at 18-19 (stating that she told ...