United States District Court, M.D. Florida, Tampa Division
D. Whittemore United States District Judge
THE COURT are Petitioner's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (cv Dkt 1),
the United States' opposition (cv Dkt. 7), and
Petitioner's reply (cv Dkt. 8). The motion to vacate is
motion raises a single ground for relief:
Claim One: Counsel provided ineffective assistance
that was prejudicial to the Movant when counsel failed to
argue that Movant was not forseeable [sic] to
"victims" involved within the charged offense
pursuant to U.S.S.G. § 2B1.1
The Movant asserts that counsel's performance was
deficient when he failed to argue that a 4-level enhancement
pursuant to U.S.S.G. § 2B1.1 was inapplicable in this
case where the Movant was not reasonably forseeable [sic] to
the "victims" involved in the charged offense. Had
it not been for counsel's ineffectiveness the
Movant's advisory guidelines would have produced an
ultimate sentencing range of 41-51 months imprisonment [i.e.,
Offense Level 18, Criminal History Category VI, minus three
levels for acceptance of responsibility),
was charged with knowingly and willfully conspiring to
present false claims and to steal government property (Count
One), four counts of theft of public money relating to a
specified taxpayer (Counts Two through Five), four counts of
aggravated identity theft (Counts Nine through 12), and
making a false statement (Count Sixteen) (cr Dkt. 1). He
pleaded guilty to Counts Two and Nine pursuant to a Plea
Agreement (cr Dkts. 45, 47), and was sentenced to 60 months
on Count Two and 24 months on Count Nine (consecutive to
Count Two), followed by supervised release (cr Dkt. 76). He
did not appeal.
contends that counsel was ineffective in failing to object to
the calculation of the number of victims under U.S.S.G.
§ 2B 1.1 (b)(2). He appears to argue that the number of
victims were not reasonably foreseeable to him. The
government correctly responds that this claim is conclusory
because Petitioner fails to explain why the victims were not
reasonably foreseeable. A vague and conclusory allegation of
ineffective assistance does not warrant relief. See
Tejada v. Dagger, 941 F.2d 1551, 1559 (11th Cir. 1991)
(vague, conclusory, and unsupported claims cannot support
relief for ineffective assistance of counsel).
reply, Petitioner contends that there is no evidence that 50
or more victims were reasonably foreseeable to him (cv Dkt.
Petitioner is incorrect. He admitted that he engaged in a
conspiracy with Nikia Williams involving 66 victims (cr Dkt.
84, pp. 15-16; cr Dkt. 85, pp. 3-7). See United States v.
Jenkins, 646 Fed. Appx. 826, 827 (11th Cir. 2016)
("In a case involving jointly undertaken criminal
activity, the defendant may be held responsible for all
reasonably foreseeable acts of others in furtherance of the
jointly undertaken criminal activity.") (citing U.S.S.G.
§ IB 1.3(a)(1)(B)). Forty-four of the victims had the
last name "Machado, " and a refund from a
"Machado" tax return was deposited on a debit card
in Petitioner's name (cr Dkt. 85, pp. 6-7). He also
admitted responsibility for 10 victims with the last name
"Bass" (Id., p. 7). Finally, refunds from
the tax returns of 11 other victims were deposited on a debit
card in Petitioner's name (Id.). These 65
victims were reasonably foreseeable and properly attributed
because this issue was available to Petitioner on direct
appeal from his conviction, but he did not appeal, it is
procedurally defaulted. A claim that was available but was
not raised in the district court or on appeal is procedurally
defaulted from consideration on collateral review, absent
cause and prejudice or actual innocence. McCoy v. United
States, 266 F.3d 1245, 1258-59 (11th Cir, 2001);
Bousley v. United States, 523 U.S. 614, 622 (1998).
To show cause for not raising a claim, a petitioner must show
that "some objective factor external to the
defense" impeded his ability to raise the claim
previously. Lynn v. United States, 365 F.3d 1225,
1235 n.20 (11th Cir.), cert. denied, 543 U.S. 891
(2004); Murray v. Carrier, 477 U.S. 478, 488 (1986).
To show prejudice, a petitioner must demonstrate that
"errors at trial actually and substantially
disadvantaged his defense so that he was denied fundamental
fairness." Wright v. Hopper, 169 F.3d
695, 706 (11th Cir. 1999) (internal citations omitted). To
establish actual innocence, a petitioner must demonstrate
factual innocence, not mere legal insufficiency.
Bousley, 523 U.S. at 623-24.
has not demonstrated cause for the default, or that he is
actually innocent of the crimes of conviction.
Petitioner's Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (cv Dkt. 1) is DENIED.
The Clerk is directed to enter judgment against Petitioner
and close this case.