CHARLES A. PANNELL, JR., District Judge.
This action is before the court on the magistrate judge's report and recommendation ("R&R") [Doc. No. 509]. The movant has filed objections thereto [Doc. Nos. 513 and 515].
As an initial matter, the motions for release on bond [Doc. Nos. 518 and 520] are DISMISSED as moot because, as set forth below, the movant's § 2255 motion is without merit. Also, the motion to pull documents [Doc. No. 516] is nothing more than a list of documents from the docket of this case and a reference to the movant's appeal and the Supreme Court's denial of her petition for writ of certiorari. To the extent that the movant is seeking a copy of these documents at no cost, there's been no showing of necessity for them. Accordingly, the motion [Doc. No. 516] is DENIED.
In reviewing a magistrate judge§s R&R, the district court "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). "Parties filing objections to a magistrate§s report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). The district judge must "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation and internal quotation marks omitted). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation," Fed. R. Civ. P. 72, advisory committee note, 1983 Addition, Subdivision (b).
The movant and five co-defendants ran telemarketing businesses that represented themselves as third-party negotiators who could influence credit card companies to reduce customers' interest rates. In 2010, the movant was indicted by a federal grand jury for conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343 (Count One), ten counts of wire fraud in violation of 18 U.S.C. §§ 1343, 2326, and 2 (Counts Two through Eleven), ten counts of structuring financial transactions to evade reporting requirements in violation of 31 U.S.C. §§ 5324(a)(1), 5324(a) and 31 C.F.R. Pt. 103 (Counts Twelve through Twenty-One), and conspiracy to commit obstruction in violation of 18 U.S.C. §§ 371 and 1512(c)(2) (Count Twenty-Two) [Doc. No. 123]. Counts Six and Twelve were dismissed by the government with the movant's consent [Doc. Nos. 331, 351].
A trial was held from October 24, 2011, through November 7, 2011. The Eleventh Circuit Court of Appeals summarized the evidence as follows:
United States v. Adams, 612 F. App§x 565, 567 (11th Cir. 2015).
The jury convicted the movant of one count of conspiracy to commit mail and wire fraud, nine counts of wire fraud, seven counts of structuring financial transactions, and one count of conspiracy to commit obstruction of justice [Doc. No. 358]. This court sentenced the movant to 210 months' imprisonment plus three years' supervised release [Doc. No. 386].
After the movant filed a timely notice of appeal, the Eleventh Circuit affirmed her convictions and sentences by order dated June 11, 2015. Adams, 612 F. App'x at 572. The Eleventh Circuit considered and rejected the movant's arguments that (1) this court improperly denied her final motion for continuance of trial; (2) this court improperly admitted evidence of a Florida civil investigation and settlement negotiations arising out of similar conduct not included in the indictment; (3) this court improperly admitted hearsay evidence; and (4) the 210-month sentence was substantively unreasonable.
The movant filed a petition for certiorari with the Supreme Court. That petition was denied on January 11, 2016. Adams v. United States, 136 S.Ct. 868 (2016).
The movant now collaterally challenges her convictions and sentences. In her motion, she asserts the following seven grounds for relief: Ineffective assistance of counsel (1) before trial, claims 1-8; (2) during trial, for failing to prepare for trial or advise the movant on important decisions and claims 6-8, 10; (3) during sentencing, claims 1, 4, 8-9; (4) on ancillary matters, claims 1, 3, 5, 8; (5) on appeal, for failing to raise meaningful arguments or support the accused with available rules and evidence and claims 8, 9; and (6) during the adversarial process generally, claims 1-5, 7-8; (7) prosecutorial misconduct, claim 11, which was not raised on appeal because of ineffective assistance of counsel; (8) trial court error, claim 12, which was not raised on appeal because of ineffective assistance of counsel; and (9) the movant is entitled to a defense based on a change in the meaning of scheme or artifice to defraud, claim 14. In her memorandum in support of her motion to vacate, the movant raises the following fourteen claims:
After setting forth the applicable standard of review,
Under the Sixth Amendment, a defendant has the right to "reasonably effective" legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show constitutionally ineffective assistance of counsel, a petitioner must establish that (1) counsel§s representation was deficient and (2) counsel§s deficient representation prejudiced him. Id. at 690-92; Bottoson v. Moore, 234 F.3d 526, 532 (11th Cir. 2000) (stating that the court may resolve an ineffective assistance claim based on either prong).
Under the first prong, a movant must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. "[C]ounsel§s conduct is presumed reasonable, [and] a petitioner must establish that no competent counsel would have taken the action that his counsel did take." Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). To prove ineffectiveness, a movant must show that his attorney§s representation "fell outside the wide range of professionally competent assistance." Id. at 1314 (internal quotation marks omitted). When evaluating an attorney§s performance, the court must be highly deferential and "avoid second-guessing counsel§s performance." Id. Moreover, when reviewing counsel§s performance, the court "must evaluate the reasonableness of counsel§s performance from counsel§s perspective at the time," not with the distortion of hindsight. Id. at 1316.
Under the second Strickland prong, a movant "must show that there is a reasonable probability that, but for counsel§s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The magistrate judge reviewed the movant's ineffective assistance of counsel claims and found that all were deficient because they were merely conclusory. As authority for this decision, the magistrate judge cited Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (recognizing that "[c]onclusory allegations of ineffective assistance are insufficient" (quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991)) (internal quotation marks omitted)); Oliver v. Wainwright, 795 F.2d 1524, 1531 (11th Cir. 1986) (stating that "vague assertions [of ineffective assistance of counsel] fail to state any constitutional claim and do not warrant further consideration"); Edwards v. Sec'y Dep't of Corr., No. 8:08-CV-1145-T-24MAP, 2008 WL 786331, at *9 n.8 (M.D. Fla. Mar. 21, 2008) (stating that "[v]ague and conclusory claims failing to state facts which would show an entitlement to relief can be dismissed without further effort by the Court"). The magistrate judge pointed out that while the movant complains that her attorneys failed to investigate, research, communicate, review various matters, present evidence, present arguments, and/or file motions, the movant does not identify specific actions her attorneys should have taken, does not demonstrate what different action by counsel would have produced or changed, and does not establish that that any potential change in action by her attorneys would have created a reasonable probability of a favorable outcome in her case.
In her objections, the movant argues that she prepared her § 2255 motion to vacate without representation and while confined. She complains that without representation, it is impossible for her to substantiate her claims. She again fails to set forth any specific conduct or omissions by her attorneys. Rather, she speaks in generalities to complain that her attorneys did such a poor job it was as if she had no counsel at all.
As set forth above, the movant attributes her inability to even allege facts supporting her sweeping ineffective assistance of counsel claims to being unrepresented in this proceeding. However, it is well-settled that "prisoners do not have a constitutional right to counsel when mounting collateral attacks to their convictions or sentences." Moore v. Zant, 885 F.2d 1497, 1507 (11th Cir. 1989) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)); see also Barbour v. Haley, 471 F.3d 1222, 1227 (11th Cir. 2006) (noting the Eleventh Circuit "has consistently held that there is no federal constitutional right to counsel in postconviction proceedings"). Therefore, the absence of counsel to assist in preparing the instant § 2255 motion to vacate does not relieve the movant of the requirement to establish that (1) counsel§s representation was deficient and (2) counsel§s deficient representation prejudiced her. Strickland v. Washington, 466 U.S. 668, 687 (1984). As set forth by the magistrate judge, the movant did not carry this burden in her § 2255 motion and memorandum as to any claim for ineffective assistance of counsel.
The movant raised prosecutorial misconduct claims, which the magistrate judge found to be procedurally defaulted because the claims were not raised on direct appeal. Likewise, the movant's claims of unspecified "court error" were found by the magistrate judge to be procedurally defaulted for the same reason.
A § 2255 motion may not be used as a surrogate for appellate review. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004); see Stone v. Powell, 428 U.S. 465, 478 n.10 (1976) (28 U.S.C. § 2255 will not be allowed to do service for an appeal). "Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). The movant's prosecutorial misconduct claims were not raised in the movant's direct appeal. Therefore, the magistrate judge's conclusion that these claims have been procedurally defaulted is correct.
In her objections, the movant fails to demonstrate why the magistrate judge's findings with respect to cause and prejudice were incorrect.
With respect to the claims of court error, which were found to be procedurally defaulted, the movant files no objection. Moreover, she has made no showing of cause and prejudice to overcome the default.
Finally, as to the movant's claim regarding jury instructions,
Section 2253 sets forth the standard a movant must satisfy to obtain appellate review of this court's disposition of her § 2255 motion to vacate:
28 U.S.C. § 2253(c)(1-3). This standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted). The magistrate judge found that it is not reasonably debatable that the movant's claims lack merit and that she has not shown that she was denied a constitutional right.
In her objections, the movant "objects that `conceivable effect, `reasonable probability' and `jurists would find it debatable' are all in the same category of the fact that if given the benefit of doubt at trial or on de novo review a defendant under law cannot be found guilty under the definition of reasonable doubt and is sufficient to undermine the facts at trial." Objection at 43 [Doc. No. 513]. This sentence is nonsensical and offers nothing to call into question the magistrate judge's recommendation on the COA. Moreover, as set forth above, the movant's claims are wholly without merit. Accordingly, the movant is denied a COA. The movant may request a circuit judge to issue a COA since this court has denied the same. Fed. R. App. P. 22 (b)(1, 2). "Under the plain language of the rule, an applicant for the writ gets two bites at the appeal certificate apple: one before the district judge, and if that one is unsuccessful, he gets a second one before a circuit judge." Jones v. United States, 224 F.3d 1251, 1255 (11th Cir. 2000) (quoting Hunter v. United States, 101 F.3d 1565, 1575 (11th Cir. 1996)).
Based on the foregoing, the movant's objections [Doc. No. 513] as amended [Doc. No. 515] are OVERRULED, and the magistrate judge§s R&R [Doc. 509] is ADOPTED as the order of the court.
IT IS ORDERED that the motion to vacate [Doc. 500] is DENIED, and that a COA is DENIED. IT IS FURTHER ORDERED that the magistrate judge's denial of the motion for discovery [Doc. No. 508] is AFFIRMED.
IT IS FURTHER ORDERED that the movant's motion to pull document [sic] and records for the court [Doc. No. 516] is DENIED and the motion for release on bond pending a ruling on the § 2255 motion [Doc. No. 518] and emergency motion to amend and act on bond request [Doc. No. 520] are DISMISSED AS MOOT.
The clerk is DIRECTED to close the civil action associated with the filing of the motion to vacate.
SO ORDERED.
