United States District Court, S.D. Ohio, Eastern Division
KENITHA L. FERGUSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. GRAHAM JUDGE
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a federal prisoner, brings this Motion to Vacate under 28
U.S.C. § 2255. (Doc. 77). This matter is before the
Court on its own motion under Rule 4(b) of the Rules
governing Section 2255 Proceedings in the United States
District Courts. For the reasons that follow, the Magistrate
Judge RECOMMENDS that the Motion be
DENIED and that this action be
was convicted, pursuant to the terms of her negotiated guilty
plea, on conspiracy to defraud the United States, in
violation of 18 U.S.C. § 286. See Plea
Agreement (Doc. 42). On May 12, 2017, the Court imposed a
term of eighteen months incarceration, to be followed by
three years supervised release, plus a special assessment of
$100.00 and restitution in the amount of $153, 574.00.
Judgment (Doc. 69). On June 20, 2017, an Amended
Judgment was filed, indicating that, of the $153, 574 total
restitution ordered in the case, $132, 020 is joint and
several with co-defendant Brandon Hamiltion, 2:16-cr-10(2),
and $21, 554 is Petitioner's sole obligation. (Doc. 76,
PageID# 261). Petitioner did not appeal.
November 8, 2017, Petitioner filed this motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. 2255. She
asserts, as her sole claim for relief, that the Court's
restitution order is improper under Honeycutt v. United
States, __ U.S. __, 137 S.Ct. 1626 (2017).
STANDARD OF REVIEW
petitioner is entitled to relief under 28 U.S.C. § 2255
only in the extraordinary event that she demonstrates either:
(1) a lack of jurisdiction by the convicting court; (2)
constitutional error; or (3) legal error so grave as to be
“a fundamental defect which inherently results in a
complete miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185 (1979) (citing 28 U.S.C.
§ 2255). Additionally, “‘[a] § 2255
motion may not be used to relitigate an issue that was raised
on appeal absent highly exceptional
circumstances.'” DuPont v. United States,
76 F.3d 108, 110 (6th Cir. 1996) (quoting United States
v. Brown, 62 F.3d 1418 (6th Cir. 1995)). Further,
non-constitutional claims not raised at trial or on direct
appeal are waived on collateral review except where the
errors amount to something akin to a denial of due process.
Accordingly, claims that could have been raised on direct
appeal, but were not, will not be entertained on a motion
under § 2255 unless the petitioner shows: (1) cause and
actual prejudice sufficient to excuse his failure to raise
the claims previously; or (2) that he is “actually
innocent” of the crime. Ray v. United States,
721 F.3d 758, 761 (6th Cir. 2013) (citing Bousley v.
United States, 523 U.S. 614, 622 (1998))
(internal citations omitted).
A petitioner who entered a guilty plea must show an error of
constitutional magnitude that had a substantial and injurious
effect or influence on the proceedings. Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)(citing
Abrahamson, 507 U.S. at 637). Therefore, a court may
only grant relief under § 2255 if the petitioner
demonstrates “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” Id. at 736 (quoting Davis
v. United States, 417 U.S. 333, 346 (1974)). A
petitioner further bears the burden of articulating
sufficient facts to state a viable claim for relief under
§ 2255. Vague and conclusory claims which are not
substantiated by allegations of specific facts with some
probability of verity are not enough to warrant relief. A
§ 2255 motion may be dismissed if it only makes
conclusory statements without substantiating allegations of
specific facts and fails to state a claim cognizable under
§ 2255. Green v. Wingo, 454 F.2d 52, 53 (6th
Cir. 1972); O'Malley v. United States, 285 F.2d
733, 735 (6th Cir. 1961).
United States v. Noble, No. 1:14-cr-135, 2017 WL
626130, at *3 (N.D. Ohio Feb. 15, 2017).
Honeycutt v. United States, the case on which
Petitioner relies, the Supreme Court held that under 21
U.S.C. § 853, which mandates forfeiture of proceeds
derived from certain drug crimes, a defendant may not be held
jointly and severally liable for property that her
co-conspirator derived from the crime but that the defendant
herself did not acquire. Honeycutt, 137 S.Ct.1626,
1630 (2017). Accordingly, “forfeiture pursuant to
§ 853(a)(1) is limited to property the defendant
[her]self actually acquired as the result of the
crime.” Id. at 1635. Here, however, Petitioner
was not convicted for a drug crime, and the Court did not
issue an order of forfeiture pursuant to the provision at
issue in Honeycutt.
have drawn a distinction between the forfeiture provision at
issue in Honeycutt and restitution pursuant to a
conspiracy charge. “Honeycutt found that the
bedrock principle of conspiracy liability was not
incorporated into forfeiture for drug offenses under 21
U.S.C. § 853.” Bangiyev v. United States,
No. 1:14-cr-206, 2017 U.S. Dist. LEXIS 133553, at *12-13
(E.D. Va. Aug. 18, 2017). In contrast, the Sixth Circuit has
held that members of a conspiracy can be held
accountable for the foreseeable loss caused by the conspiracy
or scheme. See United States v. Bogart, 576 F.3d
565, 576 (6th Cir. 2009) (holding that “the district
court did not abuse its discretion in holding Bogart jointly
and severally liable for restitution to the victims of the
conspiracy.”). Accordingly, “unlike 21 U.S.C.
§ 853, calculating fraud loss does incorporate the
bedrock principles of conspiracy liability.”
Bangiyev, 2017 U.S. Dist. LEXIS 133553, at *13.
Thus, on the merits, Petitioner's claim is unsuccessful.
pursuant to the terms of her Plea Agreement, Petitioner
agreed that the IRS had calculated the loss in this case to
be $153, 574, and indicated that she understood that the
Court would make a final determination regarding loss and the
appropriate amount of restitution. (Doc. 42, PageID# 134-35.)
In addition, she expressly waived her right to challenge her
conviction or sentence on appeal or under 28 U.S.C. §
2255, except as to any punishment in excess of the statutory
maximum or claims involving the denial of the effective
assistance of counsel or prosecutorial misconduct. (PageID#
136-37.) Thus, Petitioner waived her right to challenge the
Court's restitution order. The Sixth Circuit “has
consistently held that plea agreement waivers of 2255 rights
are generally enforceable.” Cox v. United
States, 695 F. App'x 851, 853 (6th Cir. 2017)
(citing Davila v. United States, 258 F.3d 448, 450
(6th Cir. 2001)). “It is well settled that a defendant
in a criminal case may waive ‘any right, even a
constitutional right, ' by means of a plea
agreement.” Id. (citing United States v.
Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001) (internal
quotation omitted). “To be valid, the waiver simply
must have been entered into knowingly and voluntarily.”
Id. (citing Davila, 258 F.3d at 451).
Petitioner has not alleged that her plea agreement was not
knowing or voluntary, thus forecloseing this challenge.
See United States v. Yancey, No. 15-6138, 2017 U.S.
App. LEXIS 16947, at *6 (6th Cir. Sep. 1, 2017) (“[T]he
question in this appeal is not whether the forfeiture was
proper . . . . The question here is whether [the defendant]
waived his challenge to that (presumptively improper) order.
And the answer is that he did.”).
federal habeas corpus does not provide a remedy for
challenges to a restitution order or judgment of forfeiture.
“[T]he right to relief under Sec. 2255 is limited by
the express terms of the statute to situations where the
prisoner is attacking the judgment under which he is in
custody and, if successful, would be entitled to be
released.” United States v. Blankenship, No.
7:15-011-DCR-1, 7:17-096-DCR, 2017 ...