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Kwushue v. United States

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

May 13, 2019

SAMUEL KWUSHUE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

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

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          JANET F. KING JUDGE.

         Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered under the above criminal docket number. The matter is before the Court on the § 2255 motion [106], Respondent's response and motion to dismiss [136], and Movant's reply [137].[1] For the reasons discussed below, Movant's motion to vacate is due to be denied.

         I. Background

         Movant, who owned and operated KD Metro Tropical Market (KD Metro), processed Electronic Benefit Transfer (EBT) card transactions on behalf of Supplemental Nutrition Assistance Program (SNAP) food stamp recipients. (Indictment at 3, ECF No. 1). Movant provided cash to recipients in exchange for EBT card payments (which is prohibited by law) and extracted fees for doing so, keeping approximately forty-percent of the amount received from the food stamp program. (Id. at 3-4). The Grand Jury for the Northern District of Georgia indicted Movant on eight counts of wire fraud, in violation of 18 U.S.C. § 1343. (Id.).

         Movant pleaded guilty to all counts. (Plea with Counsel, ECF No. 25-1; Tr. for Plea Hr'g, ECF No. 49). On August 19, 2016, the Court imposed a fifty-one month term of imprisonment. (J., ECF No. 40).

         Movant directly appealed, and the Eleventh Circuit Court of Appeals confirmed the judgment against him. United States v. Kwushue, 735 Fed.Appx. 693');">735 Fed.Appx. 693, 694 (11th Cir. 2018). On November 5, 2018, the United States Supreme Court denied certiorari. Kwushue v. United States, __U.S.__, 139 S.Ct. 473 (2018).

         Movant now brings this § 2255 motion and asserts eight grounds for relief: (1) jurisdictional error; (2) due process error; (3) a fundamental miscarriage of justice and factual innocence on (a) wire fraud, (b) the restitution amount, and (c) the leadership role enhancement; (4) improper calculation of the loss amount; (5) improper forfeiture procedure and order; (6) an inaccurate pre-sentence report; (7) unsupported conditions/length of supervised release; and (8) ineffective assistance of counsel for (a) failing to object in regard to the district court's jurisdiction, (b) inducing Movant with incorrect advice and threats to plea guilty, (c) failing to file a claim challenging administrative forfeiture and the forfeiture amount, (d) failing to file mitigating documents to preserve issues for appeal, (e) a due process violation and threat to Movant and his family, (f) failing to argue the estimated loss amount using the government benefits rule in U.S.S.G. § 2B1.1, (g) failing to investigate mitigating evidence, and (h)[2] ineffective assistance of appellate counsel. (Mov't Mem. at 1-45, ECF No. 106-1).

         II. 28 U.S.C. § 2255 Standard

         Section 2255 of Title 28 allows a district court to vacate, set aside, or correct a federal sentence that was imposed in violation of the Constitution or laws of the United States or was imposed by a court without jurisdiction, exceeds the maximum sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. The § 2255 movant bears the burden to establish his right to collateral relief, Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015), which is limited.

         “Once a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.” Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (quoting United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)) (internal quotation marks omitted). Further, collateral review of a claim that could have been raised on direct appeal, but was not, is foreclosed unless the movant can show cause and prejudice for his default or actual innocence. Fordham v. United States, 706 F.3d 1345, 1349 (11th Cir. 2013).[3] Thus, “[o]nce [a] defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted, ” and “to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 164, 166.

         Section 2255 relief “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in 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). Thus, a constitutional claim of ineffective assistance of counsel 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).

         “The district court is not required to grant a petitioner an evidentiary hearing if the § 2255 motion ‘and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (quoting § 2255(b)). That is the case here, as shown in the discussion below.

         III. Discussion

         A. Grounds One, Two, and Three (a)

         On direct appeal, Movant argued that, in violation of due process, his guilty plea was not knowing or voluntary because it was based on an insufficient basis in that he used only intra-state wires and did not use inter-state wires. Br. for Appellant at 39-43, Kwushue, 735 Fed.Appx. 693');">735 Fed.Appx. 693, 2017 WL 2061200. The Eleventh Circuit Court of Appeals found no error. Kwushue, 735 Fed.Appx. at 694.

         In his § 2255 motion, Movant asserts (1) jurisdictional error because the district court was without jurisdiction when the conduct asserted in the indictment involved only intra-state wire communications and, thus, did not fall within the sweep of § 1343; (2) due process error because the district should not have accepted his guilty plea when the factual conduct - use of intra-state wires and cash exchange for food stamps - was insufficient to support his conviction, rendering his guilty plea invalid; and (3)(a) a fundamental miscarriage of justice and factual innocence on wire fraud because there was no record of inter-state wire transmission or a scheme to defraud the food stamp recipients. (Mov't Mem. at 1-11).

         Respondent argues that the Eleventh Circuit has already rejected the claim that only intra-state wire was involved and was insufficient to show a violation of § 1343 and that Movant cannot collaterally re-litigate the matter. (Resp't Resp. at 10-11, ECF No. 136).

         In reply, Movant argues that he did not raise on appeal the district court's lack of jurisdiction and that he can raise it for the first time collaterally. (Mov't Reply at 2-4). Movant also argues that he did not raise actual innocence on direct appeal and that he has supported his claim with new evidence, exhibits SK1, 7, and 11. (Id. at 6).[4]Otherwise, Movant's reply does not add significantly to his grounds one through three(a). (Id. at 2-6).

         The Court agrees with Respondent that Movant cannot re-litigate his claims (whether couched as a jurisdictional matter or otherwise) based on the contention that only intra-state wire was involved. The matter has been decided. See Stoufflet, 757 F.3d at 1239. As to Movant's assertion of a fundamental miscarriage of justice or actual innocence, Movant's exhibits SK1, 7, and 11 do not qualify as new evidence, and Movant shows no retroactive change in law that would render the Eleventh Circuit Court of Appeal's decision “incorrect as a matter of constitutional law or a complete miscarriage of justice.” Stoufflet, 757 F.3d at 1242 (citing Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012) (“At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding.”)). Grounds one, two, and three (a) fail.

         To the extent that Movant in ground three (a) raises a new claim by asserting that there is no record of a scheme to defraud food stamp recipients, the claim is now foreclosed. Movant could have, but did not, raise it on direct appeal and has not shown cause and prejudice for not doing so. See Fordham, 706 F.3d at 1349. Further, the factual basis for Movant's plea shows that Movant was responsible for false and fraudulent transactions with SNAP, which defrauded the SNAP program. (See Tr. for Plea Hr'g at 20 and generally at 15-24). Movant routinely took for himself approximately forty percent of the benefit (that SNAP sent to the recipient and debited to the recipient's SNAP account) and paid the remaining portion of the benefit to the recipient in cash, when SNAP sent the funds on the agreed-to understanding that the funds were going to the recipient to pay for appropriate food items. The amount taken reduced the SNAP funds available for the intended purpose of alleviating hunger and malnutrition among low income families. The amount taken by Movant for himself was an amount to which he had no entitlement and reduced the funds available to individual recipients in their SNAP allotments. There is sufficient evidence of a scheme to defraud. See United States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir. 2003) (“A scheme to defraud requires proof of material misrepresentations, or the omission or concealment of material facts.”).

         B. Ground Three (b)

         On direct appeal, Movant argued that the district court erred in determining the loss amount and restitution. Br. for Appellant at 15-32, Kwushue, 735 Fed.Appx. 693');">735 Fed.Appx. 693, 2017 WL 2061200. The Eleventh Circuit Court of Appeals found no error. Kwushue, 735 Fed.Appx. at 694.

         In ground three (b), Movant asserts a fundamental miscarriage of justice and factual innocence on the restitution amount because the money was deposited in the account for KD Metro - a separate legal entity - and there is no evidence that the proceeds of the food stamp transactions went to Movant personally. (Mov't Mem. at 11-14). Respondent argues that ground three (b) is a challenge to restitution that is not cognizable in § 2255 proceedings. (Resp't Resp. at 12). Movant's reply adds nothing to his previous argument that changes the outcome. (Mov't Reply at 6-8).

         Respondent is correct. Section 2255 does not extend to noncustodial aspects of a sentence such as restitution. Mamone v. United States, 559 F.3d 1209, 1211 (11th Cir. 2009) (“Mamone cannot utilize § 2255 to challenge his restitution.”). Ground three (b) fails.

         C. Ground Three (c)

         On direct appeal, Movant argued that the district court's application of a four-level enhancement for Movant's role in the offense was error because he did not exercise supervisory authority over other participants in the offense. Br. for Appellant at 32-39, Kwushue, 735 Fed.Appx. 693, 2017 WL 2061200. The Eleventh Circuit Court of Appeals found no error. Kwushue, 735 Fed.Appx. at 694.

         In his § 2255 ground three (c), Movant asserts a fundamental miscarriage of justice and factual innocence in regard to his role in the offense. (Mov't Mem. at 14-16). Movant argues that he did not exert authority over another person. (Id.). Respondent argues that this claim was adjudicated on direct appeal and cannot be collaterally re-litigated. (Resp't Resp. at 11). Movant's reply adds nothing that changes the outcome. (Mov't Reply at 8-9).

         The Court agrees with Respondent that Movant cannot re-litigate his ground three (c) claim. The matter has been decided. See Stoufflet, 757 F.3d at 1239. As to Movant's assertion of a fundamental miscarriage of justice in ground three (c), Movant shows no retroactive change in law that would render the Eleventh Circuit Court of Appeal's decision “incorrect as a matter of constitutional law or a complete miscarriage of justice.” Stoufflet, 757 F.3d at 1242 (citing Rozier, 701 F.3d at 684 (“At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding.”)). Grounds three (c) fails.

         D. Ground Four

         On direct appeal, Movant argued that the district court erred in determining the loss amount under U.S.S.G. § 2B1.1 when it relied on a comparable-store comparison method of calculating estimated loss and that the court should have used the government benefits rule. Br. for Appellant at 15-28, Kwushue, 735 Fed.Appx. 693');">735 Fed.Appx. 693, 2017 WL 2061200. The Eleventh Circuit Court of Appeals found no error. Kwushue, 735 Fed.Appx. at 694.

         In ground four, Movant asserts that the court erred in calculating the loss amount under § 2B1.1 and that it should have calculated the loss by using the government benefits rule. (Mov't Mem. at 16-21). Respondent argues that this claim was adjudicated on direct appeal and cannot be collaterally re-litigated. (Resp't Resp. at 11). Movant replies but adds nothing that changes the outcome. (Mov't Reply at 9-10).

         The Court agrees with Respondent that Movant cannot re-litigate his ground four claim. The matter has been decided. See Stoufflet, 757 F.3d at 1239. Grounds four fails.

         E. ...


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