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United States v. Bailey

United States District Court, N.D. Florida, Tallahassee Division

March 26, 2018

UNITED STATES OF AMERICA
v.
DOROTHY JEAN BAILEY

          REPORT AND RECOMMENDATION

          GARY R. JONES, United States Magistrate Judge

         This matter is before the Court upon Petitioner's "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody" (ECF No. 207), the Government's Response thereto (ECF No. 242); and the Government's Supplemental Response (ECF No. 251). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 Motion should be denied. See Rules 8(a) and (b) Governing Section 2255 Cases.

         I. BACKGROUND

         On October 8, 2014, a grand jury returned a 21-count indictment charging Petitioner and four co-defendants with crimes based on their participation in a conspiracy to file fraudulent income tax returns and Social Security claims using stolen Personal Identification Information (PII). (ECF Nos. 1 & 2.)

         On October 23, 2014, Petitioner appeared before the Court and was arraigned on the charges. (ECF No. 39.) The Court appointed Assistant Public Defender Randolph P. Murrell to represent Petitioner. (ECF No. 37.) On December 1, 2014, Petitioner entered into a plea bargain agreement in which she agreed to plead guilty to Counts One, Four, Eight, Fifteen, Nineteen, and Twenty-One in exchange for the Government's promise to dismiss the remaining counts. (ECF No. 75.)

         Count One charged Petitioner with Conspiracy to Commit Wire Fraud, in violation of Title 18, United States Code, Sections 1343 and 1349; Counts Four and Eight charged Petitioner with Wire Fraud, in violation of Title 18, United States Code, Section 1343; Counts Fifteen and Nineteen charged Petitioner with Theft of Government Funds, Aiding and Abetting, in violation of Title 18, United States Code, Sections 641 and 2; and Count Twenty-One charged Petitioner with Aggravated Identity Theft, Aiding and Abetting, in violation of Title 18, United States Code, Sections 1028A(a)(1) and 2. (ECF No. 1.) On December 1, 2014, Petitioner appeared before United States District Judge Mark E. Walker for the purpose of considering her entry of a guilty plea. (ECF No. 71.) Judge Walker accepted the plea agreement and Petitioner's plea of guilty. Id.

         The Final Presentence Investigation Report ("PSR") reflected that Petitioner had a base offense level of 7. (ECF No. 144, PSR ¶ 52.) After adjusting upward twenty-four levels based on Specific Offense Characteristics, and adjusting downward three levels for acceptance of responsibility, Petitioner had a total offense level of 28. Id. at ¶¶ 53-62. Petitioner's criminal history category was III. Id. at ¶ 75. The applicable Guidelines range was 97 to 121 months. Id. at ¶ 116. The Guidelines term in Count One was 21 to 24 months, consecutive to Counts One, Four, Eight, Fifteen, and Nineteen. Id.

         On July 22, 2015, Judge Walker sentenced Petitioner to a total of 110 months' imprisonment; a three-year term of supervised release as to Counts One, Four, Eight, Fifteen, and Nineteen, and a one-year term as to Count Twenty-One, to run concurrently; restitution in the amount of $475, 402.01 jointly and severally with her co-defendants; and a $600 special monetary assessment. (ECF No. 192.)

         Petitioner did not appeal to the Eleventh Circuit Court of Appeals. On July 11, 2016, Petitioner filed the instant § 2255 Motion on a complaint form with no accompanying memorandum. (ECF No. 207.) In her Motion, Petitioner asserts the following grounds for relief:

1) Petitioner's counsel rendered ineffective assistance for failing to conduct an adequate pre-trial investigation by failing to research the applicable law in this case and interview witnesses;
2) Petitioner's counsel rendered ineffective assistance for filing only substantive pretrial motions on behalf of Petitioner;
3) Petitioner's counsel rendered ineffective assistance for failing to advise Petitioner of the relevant circumstances and likely consequences of pleading guilty as opposed to proceeding to trial, as well as her maximum potential sentence;
4) Petitioner's counsel rendered ineffective assistance for failing to investigate Petitioner's characterization as "ring-leader" of the criminal enterprise, failing to challenge the Government's lack of evidence, and failing to put the Government's case to adversarial testing;
5) Petitioner's counsel rendered ineffective assistance for objecting to the PSR calculations and for only submitting evidence regarding the mitigation of Petitioner's sentence; and
6) Petitioner's counsel failed to file a "motion of appeal."

(ECF No. 207 at 4-5.) The Government filed a Response and Supplemental Response in which it argues that Petitioner's claims are bare and conclusory and insufficient to demonstrate ineffective assistance of counsel. (ECF Nos. 242 & 251.) The Government further submits that this Court should hold an evidentiary hearing to determine whether Petitioner's counsel provided ...


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