United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE, HORNSBY
MEMORANDUM RULING & ORDER
E. WALTER, UNITED STATES DISTRICT JUDGE
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
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.
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].
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
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].
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).
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
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).
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).
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