United States District Court, N.D. Georgia
D. EVANS UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation, [Doc. 250], (R&R) recommending that the
instant 28 U.S.C.§ 2255 motion to vacate, [Doc. 193], be
denied. Movant has filed her objections in response to the
R&R. [Doc. 252].
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the Report and Recommendation
that is the subject of a proper objection on a de
novo basis and any non-objected portion under a
"clearly erroneous" standard.
was convicted in this Court on April 17, 2014, after a jury
determined that she was guilty of four counts of fraud and
conspiracy to commit fraud in connection with her
participation in a mortgage loan scheme. [Doc. 104]. "In
broad terms, [Movant] and her coconspirators induced various
lenders to fund fraudulent mortgages by supplying them with
false loan applications and supporting documentation in the
names of straw borrowers." United States v. Hairston.
627 Fed.Appx. 857, 858 (11th Cir. 2015). After receiving a
sentence of sixty-four months, she appealed, and on September
30, 2015, the Eleventh Circuit affirmed. Id She then
fled the now-pending § 2255 motion, raising three
grounds of ineffective assistance of trial counsel and one
ground of ineffective assistance of appellate counsel.
R&R, the Magistrate Judge comprehensively reviewed
Movant's claims and arguments and concluded that she has
not demonstrated that she is entitled to relief. In her first
claim of ineffective assistance of counsel, Movant contends
that her trial counsel missed important evidence and did not
properly argue that the Government had not demonstrated her
guilt. As the Magistrate Judge pointed out, however, Movant
failed to point to any deficiency on the part of her trial
counsel, and she has not demonstrated prejudice under the
test announced by the Supreme Court in Strickland v.
Washington. 466 U.S. 668 (1984).
next claims that her trial counsel was ineffective in failing
to properly convey the terms of a plea deal to her. The
Magistrate Judge found, however, that Movant had failed to
argue in support of this claim other than to assert that her
counsel should have argued more forcefully that the
Government would not be able to prove that she engaged in
racketeering, thus forcing the Government to make a better
plea offer. However, because Movant was not charged with
racketeering, the claim fails.
Magistrate Judge found that Movant's final claim of
ineffective assistance of trial counsel, regarding his
performance at the sentencing hearing, was mostly conclusory.
The non-conclusory portion of this claim related to the loss
amount as calculated by this Court under the Sentencing
Guidelines, about which she raises two arguments. The first
argument is that the lenders who were the victims of her
fraudulent activities did not suffer any losses because they
were able to sell the properties at a foreclosure auction for
the full amount of the outstanding debt. This Court addressed
that issue during the sentencing hearing, [Doc. 168 at
17-18], and concludes that Movant has not demonstrated that
the loss amount was incorrectly calculated. 
second argument is that the losses were not realized
"during the temporal scope of the alleged
conspiracy." In response, this Court agrees with the
Magistrate Judge that there is no temporal limitation in
calculating loss amount under the Guidelines, and the
argument is unavailing.
response to Movant's claims of ineffective assistance of
appellate counsel, the Magistrate Judge properly concluded
that the claims "fail because she had no reasonable
likelihood of success on appeal, regardless of the claims
raised by appellate counsel." [Doc. 250 at 33].
objections, Movant first quibbles with the Magistrate
Judge's summary of the evidence and claims that her
actions were not fraudulent. These arguments are unavailing
because, as the Magistrate Judge discussed at length, [see
Doc. 250 at 16-18], the jury found beyond a reasonable doubt
that the Government had proven that Movant committed the
elements of fraud and conspiracy to commit fraud under 18
U.S.C. §§ 1341, 1343, 1349. Movant has not
presented new evidence of her innocence, and her own
interpretation of her behavior is not convincing, and it does
not indicate that Movant is entitled to relief.
next asserts that the Magistrate Judge erred in stating that
she failed to refute the Government's contentions
regarding her Speedy Trial Act claims, pointing to a footnote
in her reply memorandum that she claims proves the Magistrate
Judge and the Government wrong. That footnote, however,
merely contains a boilerplate discussion of the Speedy Trial
Act and a recitation of the dates of her arrest and her
indictment. The record reflects, however, that Movant was
arrested by federal agents on the day her indictment was
filed by the Government and not four years previously as she
now contends. [See Doc. 7 (arrest warrant dated the same day
as her indictment)].
final argument, Movant "vigorously objects to the
R&R's characterization regarding LOSS," [Doc.
252 at 4 (emphasis in original)], but she makes no
substantive argument and fails to explain how the Magistrate
Judge may have erred.
reviewed the R&R in light of Movant's objections,
this Court holds that the Magistrate Judge's findings and
conclusions are correct. Accordingly, the R&R, [Doc.
250], is hereby ADOPTED as the order of this Court, and the
motion to vacate brought pursuant to 28 U.S.C. § 2255,
[Doc. 193], is DENIED. The Clerk is DIRECTED to close Civil
Action Number 1:16-CV-3710-0DE.
reasons stated above, seesupra note 1,
Movant's motion for a court order, [Doc. 244], is DENIED.
This Court now concludes that "the motion and the fles
and records of the case conclusively show that the prisoner
is entitled to no relief," 28 U.S.C. § 2255(b), and
Movant is thus not entitled to a hearing. See
Winthrop-Redin v. United States, 767 F.3d 1210, 1216
(11th Cir. 2014). As a result, her motions for a hearing,
[Docs. 215, 249], are DENIED. Because this Court has
determined that the loss amount attributed to Movant is