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Lee v. United States

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

December 13, 2018

LISA R. LEE, Movant,
v.
UITED STATES OF AMERICA, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          FINAL REPORT AND RECOMMENDATION

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE.

         Movant 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).)[1] 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).)

         In 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.)

         The 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).

         On 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.)

         I. Background

         The 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.

         This is 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.)

         When 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 theft. (Id.)

         The 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).)

         In 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 hearing).)

         Movant appealed, arguing only that her sentence was substantively unreasonable. (Doc. 83.) The court of appeals rejected that claim and affirmed the judgment. (Id.)

         Dodge 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.)

         II. Legal Standards For Relief Under 28 U.S.C. § Section 2255

         To 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).

         To 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 1315.

         Under 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.

         III. Analysis

         In its 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.

         A. Pre-Plea Stage

         Movant 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 been effective.[2]

         Movant 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.)

         Respondent 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 are waived.

         "[A] § 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.

         Even if 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 ...


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