United States District Court, D. Kansas
CARRIE M. NEIGHBORS, Petitioner/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This case is before the court on petitioner Carrie M. Neighbors's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 610). In her initial brief, petitioner requested relief on three grounds: (1) petitioner received ineffective assistance of counsel because trial counsel did not contest a loss calculation and did not move for an independent psychological evaluation for petitioner; (2) the court erred by failing to relieve petitioner of her trial counsel and appoint new counsel; and (3) the court erred in failing to find a Speedy Trial Act violation. Without objection, petitioner later amended her petition to include an argument that, in contravention to Alleyne v. United States, 133 S.Ct. 2151 (2013), her sentence was increased twenty-four offense levels for elements not found by a jury beyond a reasonable doubt. For the reasons set forth below, the court denies petitioner's motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2008, the government filed an eighteen-count Second Superseding Indictment, charging petitioner with conspiracy to commit mail fraud, wire fraud, and money laundering, along with thirteen counts of wire fraud and three counts of money laundering. (Doc. 379.) Prior to trial, petitioner underwent psychological evaluations and was deemed competent to stand trial by the court. (Doc. 217). A jury convicted petitioner of all charges on September 22, 2010. (Doc. 379).
Using receipts from petitioner's online auction activity, the Presentence Investigation Report ("PSR") calculated the amount of loss resulting from petitioner's fraudulent practices as $703, 749.33. Defense counsel objected. (Doc. 412). The court overruled the objection, finding that the loss estimate was conservative and that the calculation method was reasonable. (Doc. 451 at 45-46). The court sentenced petitioner to ninety-seven months imprisonment with two years of supervised release, and ordered her to pay $1, 437.82 in restitution and a $1, 600.00 special assessment. (Doc. 424).
On appeal to the Tenth Circuit, petitioner raised several issues, none of which related to the district court's failure to remove trial counsel or failure to find a Speedy Trial Act violation. The Tenth Circuit affirmed petitioner's conviction and sentence on January 26, 2012, and the Supreme Court denied certiorari on May 21, 2012. Less than one year later, petitioner filed this motion under 28 U.S.C. § 2255.
II. LEGAL STANDARD
28 U.S.C. § 2255 allows "a prisoner in custody... 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 imposed was in excess of the maximum authorized by law, or is otherwise subject to collateral attack [to] move the court... to vacate, set aside or correct the sentence." To prevail on a § 2255 motion, petitioner must show a "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974). The court must give petitioner an evidentiary hearing on the motion to determine issues and make findings of fact "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). But an evidentiary hearing is not necessary where petitioner's allegations are conclusory in nature rather than statements of fact. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
A. Ineffective Assistance of Counsel
Petitioner raises an ineffective assistance of counsel claim as her first ground of relief under § 2255. The court applies the standard identified in Strickland v. Washington, 466 U.S. 668 (1984), when determining whether a habeas petitioner's counsel provided ineffective assistance. See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland ). Under Strickland, a petitioner bears the burden of satisfying a two-pronged test in order to prevail.
First, she must show that her attorney's "performance was deficient" and "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The court affords considerable deference to an attorney's strategic decisions and "recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.
Second, a habeas petitioner must demonstrate prejudice, which requires a showing that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
The court's decision may rest on either the performance prong or the prejudice prong, or both. Id. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to... address both components of the inquiry if the [petitioner] makes an insufficient showing on one.... If it is easier to dispose of an ineffectiveness ...