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United States v. Callahan

United States District Court, W.D. Louisiana, Shreveport Division

March 14, 2018





         Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence [Doc. #74], pursuant to 28 U.S.C. § 2255, filed by Defendant-Petitioner Shelley R. Callahan (01). The Government filed a response [Doc. #78], to which Callahan replied [Doc. #80]. For the following reasons, the motion is DENIED.


         On April 24, 2013, a federal grand jury in the Western District of Louisiana returned a one-count indictment, charging Callahan with making a false statement in a bankruptcy proceeding, in violation of 18 U.S.C. § 152(3). [Doc. #1], The charge arose out of Callahan's Chapter 13 bankruptcy proceedings, which represented her eighth bankruptcy filing. About eight months prior to filing this bankruptcy petition, Callahan had received a personal injury settlement of approximately $55, 000. Callahan used the settlement money at her discretion, giving a significant portion to family members, without regard to her existing debts or creditors. During her bankruptcy proceedings, Callahan made several filings, including a disclosure document called a Statement of Financial Affairs ("SOFA"), which she signed as true and correct, under penalty of perjury. Despite having used her personal injury settlement to make gifts and payments to family members in the year preceding her bankruptcy, Callahan falsely claimed to have made no such gifts or payments.

         On February 14, 2014, a jury found Callahan guilty as charged in the sole count in the indictment. [Doc. #40], A presentence investigation report ("PSR") was prepared on April 4, and revised on April 23, 2014. [Doc. #48]. On May 22, 2014, this Court sentenced Callahan to eighteen (18) months' imprisonment, followed by three years of supervised release, and ordered that restitution be paid in the amount of $21, 990, to United States Trustee John S. Hodge, In re Callahan, Bankruptcy No. 10-12601. [Doc. #45], Callahan was ordered to self-surrender on July 22, 2014; however, her self-surrender date was later extended to October 27, 2014. [Docs. ## 45, 60]. When Callahan failed to report, the Government moved to revoke her bond, and an arrest warrant was executed on December 4, 2014, in Missouri. [Docs. ## 68, 69, 70, 71].

         Callahan appealed her conviction and sentence. [Docs. ## 46, 73]. On appeal, Callahan challenged the sufficiency of the evidence in support of her conviction and further challenged the restitution calculation, claiming that some of her debts had been satisfied. On January 8, 2015, the United States Court of Appeals for the Fifth Circuit affirmed Callahan's conviction and sentence. [Doc. #73], The Fifth Circuit found that the verdict was supported by ample evidence and that the restitution issue was abandoned for failure to cite to any legal authorities or otherwise comply with briefing requirements. Id.

         The instant motion was filed on March 20, 2015. Here, Callahan alleges ineffective assistance of counsel on the following two grounds. First, Callahan challenges her attorney's failure to "solve the problem" of an impaneled juror whom Callahan claims to have known and believed to harbor negative bias toward Callahan. [Doc. #74, p. 4; Doc. #76; Doc. #80]. Second, Callahan claims that her attorney failed to advise her of, or discuss with her, the Government's objections to the PSR. [Doc. #74, p. 5');">p. 5]. And, finally, Callahan reasserts her challenge to the amount of restitution, previously raised both in a motion to reconsider her sentence before this Court and, later, on direct appeal to the Fifth Circuit. [Doc. #74, p. 6; Doc. #50; Doc. #73].

         LAW & ANALYSIS

         Under 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct a sentence imposed by a federal court when: (1) "the sentence was imposed in violation of the Constitution or 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[.]" 28 U.S.C. § 2255(a); United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam).

         "As the Supreme Court holds, '[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.'" United States v. Cooper, 548 Fed.Appx. 114');">548 Fed.Appx. 114, 115 (5th Cir. 2013) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted)). Rather, after a defendant is convicted and exhausts the right to appeal, a court is "entitled to presume that the defendant stands fairly and finally convicted." United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 164 (1982)). Similarly, the Fifth Circuit has explicitly determined that "complaints concerning restitution may not be addressed in § 2255 proceedings." United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999). Accordingly, the Government is correct that this Court lacks jurisdiction to consider Callahan's third and final claim in the instant motion.

         Courts may, however, consider claims for ineffective assistance of counsel brought for the first time in a § 2255 motion. See United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). To successfully state an ineffectiveness claim, the petitioner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to establish either prong of the Strickland test is fatal to petitioner's claim. Id. at 696; see also Tucker v. Johnson, 115 F.3d 276, 280 (5th Cir. 1997). In determining whether counsel's performance is deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. If a tactical decision is "conscious and informed ... [it] cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Crane v. Johnson, 178 F.3d 309, 314 (5th Cir. 1999).

         To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. A defendant is not prejudiced if "the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Moreover, "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue." Green v. Johnson, 160 F.3d 1029, 1042-43 (5th Cir. 1998). The "prejudice" element requires affirmative proof. United States v. Thompson, 44 F.3d 1004, 1995 WL 10515, at * 2 (5th Cir. 1995) (unpublished table decision).

         As stated, Callahan alleges ineffectiveness, first, due to her counsel's failure to challenge a juror who Callahan claims knew and disliked her. In cases of alleged ineffectiveness grounded in a claim that counsel failed to strike a biased juror, courts must be cognizant of the fundamental nature of the right to an impartial jury. Seigfried v. Greer,372 Fed.Appx. 536, 539 (5th Cir. 2010) (citing McDonough Power Equip., Inc. v. Greenwood,548');">464 U.S. 548, 556 (1984) ("One touchstone of a fair trial is an impartial trier of fact-'a jury capable and willing to decide the case solely on the evidence before it.' " (quoting Smith v. Phillips,455 U.S. 209, 217 (1982))). "In conducting the deficient performance analysis in the context of counsel's failure to strike an allegedly ...

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