United States District Court, N.D. Ohio, Eastern Division
C. NUGENT, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner's Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. (ECF #40).
Petitioner, Kimberli E. Himmel, pled guilty to 18 counts of
bank fraud, in violation of 18 U.S.C. § 1344, and one
count of theft of government fraud, in violation of 18 U.S.C.
§ 641. (ECF #3). This Court sentenced Ms. Himmel to 60
months in custody, three years of supervised release, and $2,
479, 248.00 in restitution. (ECF #15). Ms. Himmel now alleges
ineffective assistance of counsel. (ECF #40). This Court
ordered Ms. Himmel to show cause for her Motion, and Ms.
Himmel has not filed since. (ECF #42). The Government filed a
timely response. (ECF #43). For the reasons set forth below,
Petitioner's § 2255 Motion is DENIED.
petitioner that moves to vacate, set aside, or correct a
sentence pursuant to 28 U.S.C. § 2255 must demonstrate
that: (1) "the sentence was imposed in violation of the
Constitution or the laws of the United States," (2)
'the court was without jurisdiction to impose such
sentence," (3) "the sentence was in excess of the
maximum authorized by law," or (4) the sentence is
"otherwise subject to collateral attack." Hill
v. United States, 368 U.S. 424, 426-427 (1962). A
petitioner arguing that her counsel was constitutionally
ineffective must prove that the counsel performed
inadequately and prejudice resulted from the inadequate
performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). If counsel's performance was adequate and
competent, then the challenge of ineffective counsel is
unsuccessful. Coe v. Bell, 161 F.3d 320, 342
(6th Cir. 1998). The court presumes competence of
the defense attorney if there is no proof of unreasonable
representation according to prevailing professional norms and
sound strategy. Kimmelman v. Morrison, 477 U.S. 365,
Ms. Himmel's counsel is presumed competent, and there is
no evidence to rebut the presumption of competency to prove
that counsel was ineffective. Instead, the record shows that
counsel soundly and reasonably represented Ms. Himmel.
28 U.S.C. § 2255 Motion, Ms. Himmel alleges her attorney
lied to her and enticed her to sign the plea agreement. (ECF
#40). However, Himmel swore before this Court that her plea
was "knowingly [and] voluntarily." (ECF #25).
Himmel's original statement at the plea hearing
contradicts the allegation in her motion and is conclusive as
to truth and accuracy. See United States v. Goodloe,
393 Fed.Appx. 250, 255 (6th. Cir. 2010) ("A
defendant's statements at a plea hearing should be
regarded as conclusive [as to the truth and accuracy] in the
absence of a believable, valid reason justifying a departure
from the apparent truth of those statements.").
Ms. Himmel challenges the sentence because her counsel
allegedly failed to adequately argue for a lesser sentence
due to her poor health and that the court did not take her
health into consideration for sentencing. The transcript from
the October 31, 2017 plea hearing indicates that counsel
strongly argued for a two-level reduction based on
Himmel's medical condition and this Court considered
Himmel's health in sentencing. (ECF #25). Specifically,
this Court decided. "I don't think that your
physical condition is anything other than what can be
certainly attended to at the Bureau of Prisons, so that's
not a reason to vary downward at all." (ECF #25. pg.
309). After, defendant's counsel objected to the
non-application of a downward variance for health. (ECF #25,
pg. 312). Ms. Himmel's counsel represented her interests
soundly and reasonably, and the court's decision to deny
a downward departure does not evidence ineffective counsel.
reasons set forth above, Petitioner's Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
is DENIED. There is no basis upon which to require a hearing
on Petitioner's Motion. Accordingly. Petitioner's
request for a hearing is DENIED.
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3).
that an appeal from this decision could not be taken in good
faith, and there is not basis upon which to issue a
certificate of ...