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Ferguson v. United States

United States District Court, S.D. Ohio, Eastern Division

November 16, 2017

KENITHA L. FERGUSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          JAMES L. GRAHAM JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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 DISMISSED.

         I. BACKGROUND

         Petitioner 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.

         On 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).

         II. STANDARD OF REVIEW

         A 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).

         In 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.

         Courts 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.

         Further, 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.”).

         Finally, 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 ...


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