United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
case is before the Court on Petitioner Scott Anderson
Hall's Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Civ. Doc. 1, § 2255
Motion)and Supporting Memorandum (Civ. Doc. 2,
§ 2255 Memorandum). Petitioner raises four claims of
ineffective assistance of counsel pertaining to sentencing or
direct appeal. The United States has responded in opposition.
(Civ. Doc. 8, Response). Petitioner did not file a reply.
Thus, the matter is ripe for a decision.
Rule 8(a) of the Rules Governing Section 2255 Proceedings,
the Court has determined that an evidentiary hearing is not
necessary to decide the motion. See Rosin v. United
States, 786 F.3d 873, 877 (11th Cir. 2015) (an
evidentiary hearing on a § 2255 motion is not required
when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently
frivolous, or if in assuming that the facts he alleges are
true, he still would not be entitled to any relief). For the
reasons set forth below, Petitioner's § 2255 Motion
is due to be denied.
26, 2013, a federal grand jury returned a 34-count
superseding indictment against Petitioner. (Crim. Doc. 34,
Superseding Indictment). The charges stemmed from a
long-running Ponzi scheme, in which Petitioner convinced
dozens of victims to entrust him with their retirement
savings by promising a 12% annual return on investment.
(Crim. Doc. 62, Plea Agreement at 20-26). In fact, Petitioner
used the victims' money to pay personal expenses,
purchase commercial property, and buy luxury cars. By the
time he was caught, Petitioner had stolen more than $3
million of retirement funds from public school teachers and
administrators, nurses, and other victims. Counts One through
Eleven of the Superseding Indictment charged Petitioner with
mail fraud, in violation of 18 U.S.C. §§ 1341 and
2. Counts Twelve through Twenty-Four charged Petitioner with
wire fraud, in violation of 18 U.S.C. §§ 1343 and
2. Finally, Counts Twenty-Five through Thirty-Four charged
Petitioner with money laundering, in violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i) and 2.
to a written plea agreement, Petitioner pled guilty to two
counts of mail fraud (Counts Eight and Eleven), one count of
wire fraud (Count Seventeen), and one count of money
laundering (Count Twenty-Five). (Crim. Doc. 62). The
magistrate judge who presided over the change-of-plea hearing
recommended that Petitioner's “plea was both
knowledgeable and voluntary, and that the facts that he
admitted establish the elements of the charged
offense.” (Crim. Doc. 63, Report and Recommendation
Concerning Guilty Plea). The Court accepted Petitioner's
guilty plea and adjudicated him accordingly. (Crim. Doc. 66,
Acceptance of Plea).
to the Presentence Investigation Report (PSR),
Petitioner's advisory sentencing range under the United
States Sentencing Guidelines was 108 to 135 months in prison,
based on a total offense level of 31 and a Criminal History
Category of I. (Crim. Doc. 118, PSR at ¶ 100). The total
offense level included an 18-level enhancement under §
2B1.1(b)(1)(J) because the loss was more than $2.5 million
but not more than $7 million ($3, 118, 811.71 to be exact
according to the PSR), and a 2-level vulnerable victim
enhancement under § 3A1.1(b)(1) because two of the
victims were grieving the loss of a spouse when Petitioner
defrauded them. (Crim. Doc. 118 at ¶¶ 54, 57).
sentencing counsel, Charles Truncale, objected to the PSR,
contesting in particular the loss amount and the 2-level
vulnerable victim enhancement. (Crim. Doc. 118 at 26-34,
Addendum to PSR). Mr. Truncale also submitted a sentencing
memorandum that advocated for a downward variance based on
the sentencing factors in 18 U.S.C. § 3553(a). (Crim.
Doc. 120, Petitioner's Sentencing Memorandum). Attached
to Petitioner's Sentencing Memorandum were the following:
an exhibit outlining Petitioner's challenge to the loss
amount (Crim. Doc. 120-1), a “Comprehensive Sentencing
Mitigation Report” prepared by Mr. Carlos Dawson, a
retired United States probation officer (Crim. Doc. 120-2),
and eight letters in support of Petitioner (Crim. Doc.
sentencing hearing occurred over the course of March 30, 2015
(Crim. Doc. 151, Sentencing Transcript Vol. I), and June 12,
2015 (Crim. Doc. 152, Sentencing Transcript Vol. II). As the
Court noted, the two most significant issues were the loss
amount and whether the vulnerable victim enhancement applied.
(Crim. Doc. 151 at 6). The Court heard testimony from several
witnesses for the government, including a forensic accountant
for the FBI, four of Petitioner's victims, and the FBI
agent who investigated the case. The Court also heard
statements from several of Petitioner's family members
and friends. After hearing arguments about the Guidelines
determination, the Court overruled Petitioner's
objections to the loss amount and the vulnerable victim
enhancement. (Crim. Doc. 152 at 79-83). The Court adopted the
PSR's Guidelines calculation and determined that the
advisory sentencing range was 108 to 135 months in prison.
(Id. at 83). After hearing the parties'
arguments about the § 3553(a) factors, the Court
sentenced Petitioner to a mid-range term of 120 months in
prison (concurrent for each count), followed by three years
of supervised release. (Id. at 148); (Crim. Doc.
appealed the sentence to the United States Court of Appeals
for the Eleventh Circuit. Petitioner's appellate counsel,
Calvin Rivers, ultimately filed a “corrected”
Anders brief and a motion to withdraw. United
States v. Hall, No. 15- 12842 (11th Cir.), Dkt. Entry of
Aug. 15, 2016 (“Corrected Anders
Brief”). The Eleventh Circuit granted appellate
counsel's motion to withdraw and affirmed
Petitioner's sentence, writing:
Our independent review of the entire record reveals that
counsel's assessment of the relative merit of the appeal
is correct. Because independent examination of the entire
record reveals no arguable issue of merit, counsel's
motion to withdraw is GRANTED, and
Hall's convictions and total sentence are
United States v. Hall, 676 Fed.Appx. 909, 910 (11th
did not seek certiorari review. Petitioner then timely filed
the instant § 2255 Motion, raising four claims of
ineffective assistance of counsel pertaining to sentencing
and direct appeal.
Title 28, United States Code, Section 2255, a person in
federal custody may move to vacate, set aside, or correct his
sentence. Section 2255 permits such collateral challenges on
four specific grounds: (1) the imposed sentence was in
violation of the Constitution or laws of the United States;
(2) the court did not have jurisdiction to impose the
sentence; (3) the imposed sentence exceeded the maximum
authorized by law; or (4) the imposed sentence is otherwise
subject to collateral attack. 28 U.S.C §2255(a) (2008).
Only jurisdictional claims, constitutional claims, and claims
of error that are so fundamental as to cause a complete
miscarriage of justice will warrant relief through collateral
attack. United States v. Addonizio, 442 U.S. 178,
184-86 (1979). A petitioner's challenge to his sentence
based on a Sixth Amendment claim of ineffective assistance of
counsel is normally considered on collateral review.
United States v. Teague, 953 F.2d 1525, 1534 n. 11
(11th Cir. 1992).
succeed on a claim of ineffective assistance of counsel, a
petitioner must show both (1) that counsel's performance
was deficient, and (2) that as a result of counsel's
deficient performance, the petitioner suffered prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In determining whether counsel performed deficiently, the
Court adheres to the standard of reasonably effective
assistance. Weeks v. Jones, 26 F.3d 1030, 1036 (11th
Cir. 1994). The petitioner must show, in light of all the
circumstances, that counsel's performance fell outside
the “wide range of professionally competent
assistance.” Id. To show that counsel's
deficient performance prejudiced the defendant, the
petitioner must show that there is a reasonable probability
that, but for counsel's error, the result of the
proceeding would have been different. Id. at 1036-37
(citing Strickland, 466 U.S. at 694). A
“reasonable probability” is a probability
sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694. In determining whether
a petitioner has met the two prongs of deficient performance
and prejudice, the Court considers the totality of the
evidence. Id. at 695. However, because both prongs
are necessary, “there is no reason for a court…
to approach the inquiry in the same order or even to address
both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697;
see also Wellington v. Moore, 314 F.3d 1256, 1261 n.
1 (11th Cir. 2002) (“We need not discuss the
performance deficiency component of [petitioner's]
ineffective assistance claim because failure to satisfy the
prejudice component is dispositive.”).
Ground One: Whether sentencing counsel gave ineffective
assistance by not calling certain witnesses
Ground One, Petitioner claims that Mr. Truncale gave
ineffective assistance at sentencing by not calling the
“expert witness” who wrote the Sentencing
Mitigation Report, Mr. Carlos Dawson. (Civ. Doc. 1 at 4; Civ.
Doc. 2 at 16-18). Petitioner claims that the mitigation
expert could have “cleared up any confusion about the
[mitigation] report” concerning the average sentence
for fraud defendants, which purportedly would have supported
a lower sentence. (Civ. Doc. 1 at 4). Specifically,
Petitioner contends that the mitigation expert “could
have cleared up the amount that constitutes a conventional
range for the ‘heartland' of sentences
imposed” in cases involving similar offenders with
similar criminal history categories. (Civ. Doc. 2 at 17).
Petitioner also claims that counsel was ineffective for not
calling other unnamed witnesses, whom Petitioner claims
“were long term clients” of his. (Civ. Doc. 1 at
4). Petitioner claims that such witnesses “could have
rebutted the Government's assumption ...