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Lodge v. United States

May 23, 2007


The opinion of the court was delivered by: J. Ronnie Greer United States District Judge


This criminal matter is before the Court to address a motion to vacate, correct or set aside a sentence pursuant to 28 U.S.C. § 2255 filed by the petitioner Mailee Lodge. She has alleged four grounds which she contends entitle her to relief. The first two grounds are based uponher contention that she is entitled to a review of her sentence under United States v. Booker, 125 S.Ct. 738 (2005), the third ground challenges the evidence used to obtain her conviction, and the fourth ground is an allegation of the ineffective assistance of her trial counsel.


In July 2003, the petitioner was charged in a thirty-four- count indictment with conspiracy, health care fraud, use of unauthorized access devices, i.e. credit cards, engaging in monetary transactions over $10,000 in criminally derived property, engaging in financial transactions in the proceeds of unlawful activity with the intent to promote unlawful activity, and obtaining controlled substances by fraud. At the conclusion of her two-week trial on December 19, 2004, the petitioner was found guilty on twenty-five of the thirty-four counts: Count 1 which charged her with conspiracy, Counts 5-20 which charged her with health care fraud, Counts 21-22which charged her with fraudulent use of unauthorized credit cards, Counts 24-25 which charged her with monetary transactions in criminally derived funds, Counts 28-29 which charged her with financial transactions to promote unlawful activity, and Counts 33-34 which charged her with obtaining drugs by fraud. The petitioner was sentenced in March 2005 to 60 months imprisonment followed by 3 years of supervised release and was also ordered to pay restitution totaling $1,311,848.64 and special assessments totaling $2,500. After the entry of judgment on March 17, 2005, the petitioner filed a notice that she was waiving her right to appeal her conviction and sentence.She timely filed her § 2255 motion on December 27, 2005.


The Supreme Court has established a two-pronged test for evaluating ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail under that test, the petitioner must show both (1) that counsel's performance was deficient and (2) that this deficiency prejudiced him. Strickland, 466 U.S. at 687; Gillette v. Tansy, 17 F.3d 308, 310 (10th Cir. 1994).

Judicial scrutiny of the adequacy of attorney performance must be strongly deferential: "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Moreover, the reasonableness of the challenged conduct must be evaluated from counsel's perspective at the time of the alleged error; "every effort should be made to 'eliminate the distorting effects of hindsight.' " Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996) (quoting Strickland, 466 U.S. at 689); accord Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

When a defendant files a § 2255 motion, she must set forth facts which entitle him to relief. Green v. Wingo, 454 F. 2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F. 2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." O'Malley, 285 F. 2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F. 2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th Cir. 1994); see also United States v. Cappas, 29 F. 3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). To warrant relief for a non-constitutional error requires a showing of a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F. 3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).


Although the petitioner asserts that she is entitled to a remand and a review of her sentence under Booker, the Court's order dated February 9, 2005, [Doc. 135], ordered the parties to file a sentencing memorandum in regard to the appropriate sentence in view of the holding in Booker. In addition, the Court's order dated March 1, 2005, [Doc. 138], specifically states:

In view of the holding in United States v. Booker, 125 S.Ct. 738 (2005),the Court FINDS that the defendant's Motion for Downward Departure is MOOT. However, the Court will consider the factors raised by the defendant in connection with the Court's analysis of a reasonable sentence under Title 18 § 3553(a) of the United States Code.

Subsequently, the government filed a brief in regard to the Booker issues, [Doc. 136], and the petitioner also filed a brief addressing the application of Booker to this case. [Doc. 137]. At the petitioner's sentencing on March 7, 2005, the Court addressed the factors set out in 18 U.S.C. § 3553(a) pursuant to Booker, treating the sentencing guidelines as advisory, rather than mandatory.

Therefore, the grounds asserted by the petitioner in regard to the Court's failure to apply Booker in arriving ...

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