The opinion of the court was delivered by: Julie A. Robinson United States District Judge
This matter is before the Court on Petitioner Jennifer Hughes-Boyles' Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence by a Person in Federal Custody (Doc. 42). Petitioner claims that her counsel provided ineffective assistance. The Government has responded, and Petitioner has filed a reply. After a careful review of the record and the arguments presented, the Court denies Petitioner's motions without further evidentiary hearing because Petitioner has not met her burden in showing ineffective assistance of counsel.
Under 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, "the judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion."
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief."*fn1 Petitioner must allege facts which, if proven, would warrant relief from his conviction or sentence.*fn2 An evidentiary hearing is not necessary where the factual allegations in a § 2255 motion are contradicted by the record, are inherently incredible, or when they are conclusions rather than statements of fact.*fn3
On February 10, 2012, a one-count criminal Information was filed in
accordance with a negotiated Plea Agreement. On February 24, 2012,
Petitioner appeared before this Court and entered a plea of guilty to
one count of bank fraud, in violation of 18 U.S.C. § 1344.*fn4
Pursuant to the Plea Agreement, Petitioner waived the right
to appeal or collaterally attack any matter in connection with the
prosecution, conviction, or the sentence to be imposed. This waiver
did not extend to subsequent claims of ineffective assistance of
counsel or prosecutorial misconduct. In exchange, the Government
agreed to not file any additional charges, to recommend a sentence at
the low end of the guideline range, and to recommend a two-level
reduction in the applicable offense level for acceptance of
In the petition to enter a guilty plea and the Plea Agreement, Petitioner affirmed that her plea was voluntary and that she was satisfied with the advice and representation of her counsel, Benoit Swinnen. Petitioner acknowledged that her counsel fully informed her on all matters, including the nature of the charge, all lesser included offenses, and all possible defenses she might have had. At her change of plea hearing, the Court engaged Petitioner in a colloquy about her plea in accordance with Fed. R. Crim. P. 11(b)(1). During the colloquy, Petitioner affirmed that she had read and understood the terms of the Plea Agreement, confirmed that she was satisfied with the advice and assistance of her counsel, and affirmed that her plea was entered freely and voluntarily. The Court found that Petitioner's plea was entered into freely and voluntarily and was not the result of ignorance, fear, inadvertence, or coercion.
On May 7, 2012, the Court entered a preliminary order of forfeiture, which included a money judgment of $596,201.22.*fn5 On May 25, 2012, Mr. Swinnen submitted a Sentencing Memorandum and Motion for Variance with several letters of support from community members attached as exhibits.*fn6 Petitioner sought a request for variance under 18 U.S.C. § 3553(a) and asked for ten to sixteen months of house arrest, three hundred hours of community service, a minimum fine, and a just restitution order.
On May 31, 2012, the Court conducted a day long evidentiary hearing on the issue of restitution. The Government called one witness from the victim bank and presented multiple exhibits to substantiate the amount of restitution owed. Petitioner called one witness from the Shawnee County Appraiser' office and presented multiple exhibits showing a lower restitution amount than the Government's evidence. At the conclusion of the hearing, the parties were given ten days to file post-hearing briefs in support of their arguments on the amount of restitution owed.*fn7 Following briefing, on June 21, 2012, the Court found the Government's evidence persuasive and entered an order finding restitution in the amount of $712,144.89 should be awarded to the victim bank.*fn8
The Court held a final sentencing on September 10, 2012. The PSR calculated the total offense level at 21, criminal history category of I, and a guideline range of 37 to 46 months of imprisonment. On September 6, 2012, Mr. Swinnen filed a Supplemental Sentencing Memorandum in support of Petitioner's request for downward variance and mitigation of her sentence.*fn9 At the sentencing hearing, the Court heard testimony from one Government witness, four individuals who spoke on Petitioner's behalf, and Petitioner. Based on Petitioner's sentencing memoranda and presentation at the sentencing hearing, the Court granted Petitioner's motion for a downward variance in part. Petitioner was sentenced to thirty months' custody, seven months below the low end of the recommended guideline range. Petitioner did not file a direct appeal from the Court's sentence.
On October 17, 2012, Petitioner filed the instant motion to vacate, set aside, or correct sentence. The motion was filed by a new attorney for Petitioner, and Mr. Swinnen has withdrawn from the case.
In her § 2255 motion, Petitioner claims that her counsel provided ineffective assistance, resulting in a deprivation of her rights. The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for [her] defence."*fn10 A successful claim of ineffective assistance of counsel must meet the two-pronged test set forth in Strickland v. Washington.*fn11 First, a defendant must show that her counsel's performance was deficient in that it "fell below an objective standard of reasonableness."*fn12 To
meet this first prong, a defendant must demonstrate that the omissions of her counsel fell "outside the wide range of professionally competent assistance."*fn13 This standard is "highly demanding."*fn14 Strategic or tactical decisions on the part of counsel are presumed correct, unless they were "completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy."*fn15 In all events, judicial scrutiny of the adequacy of attorney performance must be strongly deferential: "[A] ...