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Bankston v. United States

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

August 5, 2019

ANGELIQUE BANKSTON, Defendant-Petitioner,
v.
UNITED STATES OF AMERICA, Plaintiff-Respondent.

          MEMORANDUM AND OPINION

          DONALD C. NUGENT, SENIOR UNITED STATES DISTRICT JUDGE

         Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to Title 28 United States Code § 2255. For the reasons below, the Defendant's motion is denied.

         I. Procedural History

         On November 21, 2013, a jury found Petitioner, Ms. Bankston, guilty of Counts 1-23 of the second superceding indictment, including: three counts of conspiracy to commit bank fraud and money laundering (Counts 1, 15, and 17) in violation of 18 U.S.C. § 371; five counts of bank fraud (Counts 2-5 and 7) in violation of 18 U.S.C. § 1344; eight counts of mail fraud (Counts 10-14, 18s, 20-21) in violation of 18 U.S.C. § 1341; one count of wire fraud (Count 16) in violation of 18 U.S.C. 1343; and one count of money laundering (Count 9) in violation of 18 U.S.C. §§ 1956(a)(1)(B) and 1956(a)(1). (ECF #150). She was sentenced to a total of 168 months imprisonment, with $75, 554.17 in restitution, and three years of supervised release.

         Ms. Bankston filed a timely appeal from the judgment of conviction and submitted four arguments to support her appeal. Ms. Bankston argued that her conviction should be overturned because (1) she had not validly waived her right to counsel at trial; (2) she should not have been charged with making false statements under 18 U.S.C. §1001 (Count 23 of the indictment); (3) her constitutional rights were violated at trial by judicial bias, prosecutorial misconduct and ineffective assistance of counsel, all related to the false statements count; and, (4) the evidence was insufficient to support her conviction for Counts 16 (wire fraud) and 18 (mail fraud). United States v. Bankston, 820 F.3d 215, 220, 222 (6th Cir. 2016).

         Ms. Bankston also appealed her sentence alleging that the Court (1) incorrectly calculated her base offense level as 27 when it was previously determined to be 25; (2) miscalculated her criminal history category as a VI rather than V; and (3) failed to address factual discrepancies regarding the aggregate amount of loss under § 2B 1.1 (b)(1). Id. at 236. On appeal, Count 23 was vacated pursuant to Subsection (b) of 18 U.S.C. § 1001(b) as false statement prohibition "does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writing or documents submitted by such party or counsel to a judge, or magistrate in that proceeding." The Court of Appeals did not accept her argument for vacating the convictions for the other counts. However, the Court did agree that Ms. Bankston "needed to be resentenced on all but the aggravated identity theft counts." Bankston, at 236. The Court of Appeals gave the following reasons for their decision: (1) the trial court had earlier noted that Ms. Bankston's offense level should be 25 but later sentenced her based on a level of 27; (2) the trial court determined Ms. Bankston fell within a criminal history category of VI rather than the previously determined category of V without providing any explanation; and (3) the trial court provided no explanation as to how the Government's loss amount was correct. Id. The Court then remanded the case for resentencing. (ECF #312, p. 3).

         On October 25, 2016, this Court held a re-sentencing hearing and sentenced Ms. Bankston to 185 months of imprisonment, to be followed by a three year term of supervised release. (ECF #312, p. 4). Ms. Bankston again filed a timely appeal of her sentence and on October 11, 2017, the 6th Circuit Court of Appeals affirmed her conviction and sentence. United States v. Bankston, 711 Fed.Appx. 307 (6th Cir. 2017). Ms. Bankston then filed a timely Petition for Writ of Certiorari with the United States Supreme Court, which was denied on May 29, 2018. (ECF #312, p. 4). Upon said denial, Ms. Bankston filed a timely Motion pursuant to 28 U.S.C. § 2255(f) alleging eight grounds for relief which are as follows:

(1) Ms. Bankston was denied due process because the Government failed to disclose potentially exculpatory Brady material (ECF #312, p. 6);
(2) Ms. Bankston's rights under the Fourth Amendment were violated by the Government's reliance on false information to obtain a warrant to search her residence (Id., p. 12);
(3) Ms. Bankston's Sixth Amendment right to effective assistance of counsel was violated (Id., p. 16);
(4) Trial counsel rendered ineffective assistance by failing to challenge the composition of the jury venire after the Government used peremptory challenges to exclude minorities contrary to the Batson v. Kentucky mandate (Id., p. 17);
(5) Government obtained Ms. Bankston's conviction by knowingly soliciting false testimony and introducing evidence in violation of her constitutional rights (Id., p. 22);
(6) Ms. Bankston's Sixth Amendment right to effective assistance of counsel was violated during her initial sentencing hearing (Id., p. 24);
(7) Ms. Bankston's Sixth Amendment right to effective assistance of counsel was violated during the preparation for her resentencing (Id., p. 29); and
(8) Resentencing counsel failed to investigate or consult with appropriate experts regarding loss calculations. (Id., p. 36).

         II. Law and Analysis

         a. Limitations to a ยง ...


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