United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM AND OPINION
C. NUGENT, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
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
(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.
(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).
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