United States District Court, E.D. Virginia
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Michelle M.
Borzillo's ("Defendant") Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255.
November 17, 2015, Defendant pleaded guilty to one count of
bank fraud, in violation of 18 U.S.C. § 1344. In the
written plea agreement, Defendant agreed that
"restitution is mandatory pursuant to 18 U.S.C. §
3663A, " and that "victims of the conduct described
in the charging instrument, statement of facts or any related
or similar conduct shall be entitled to restitution." In
the plea colloquy, Defendant acknowledged that she had read
and reviewed the plea agreement with her attorney. She made
no claim of innocence and admitted there was a factual basis
for her plea of guilty. Defendant stipulated to the facts in
the statement of facts, which was incorporated into the plea
factual basis for Defendant's guilty plea is that she
defrauded Wells Fargo Bank of $288, 497.00. She defrauded
Wells Fargo through a fraudulent short sale of her home in
Nokesville, Virginia. As a result of the fraudulent short
sale, Wells Fargo agreed to extinguish her remaining mortgage
debt on her home. Defendant's mortgage debt with Wells
Fargo extinguished through the short sale included $166,
499.00 from a first mortgage and $118, 988.00 from a second
mortgage. Defendant also fraudulently obtained $3, 000 for
relocation assistance from Wells Fargo; she did not use this
money to relocate because she continued living in the
Nokesville property with her boyfriend, who had purchased the
property in the short sale.
February 19, 2016, this Court sentenced Defendant to twelve
months and one day imprisonment, two years of supervised
release, and ordered Defendant to pay full restitution of the
§288, 497.00 that she defrauded Wells Fargo. At the
sentencing hearing, this Court heard extensive arguments on
the issue of restitution. Like her present § 2255 motion
argument, Defendant argued at the sentencing hearing that she
should not be forced to pay restitution because Wells Fargo
was not damaged. That argument was unsuccessful both before
this Court and the Fourth Circuit. The Fourth Circuit
dismissed Defendant's appeal because Defendant knowingly
and intelligently waived her right to appeal her sentence,
including the restitution order.
U.S.C. § 2255 may be used to challenge a sentence or
conviction on the grounds that it was imposed in violation of
the Constitution or laws of the United States, that the court
was without jurisdiction to impose such a sentence, that the
sentence exceeded the maximum authorized by law, or that the
sentence is otherwise subject to collateral attack. 28 U.S.C.
§ 2255; see also Hill v. United States, 368
U.S. 424, 426-27 (1962). The petitioner bears the burden of
proving the grounds for relief by a preponderance of the
evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th
Cir. 1967); Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
first ground for relief, Defendant asserts that she received
ineffective assistance of counsel because she could not
appeal her restitution obligation. In Strickland v.
Washington, 466 U.S. 668, 687 (1984), the Supreme Court
established a two-part test for evaluating claims for
ineffective assistance of counsel: (1) counsel's
performance was objectively unreasonable; (2) the deficient
performance prejudiced the defense. Id. at 687-88.
An ineffective assistance of counsel claim will fail if the
moving party cannot make the required showing of either
deficient performance or sufficient prejudice. Id.
first prong of the test, objective reasonableness is
"simply reasonableness under prevailing professional
norms" regarding the representation. Id. at
688. There is a strong presumption that counsel rendered
adequate assistance and made all significant decisions with
reasonable professional judgment. Id. at 689-90;
see, e.g., United States v. Terry, 366 F.3d
312, 316-18 (4th Cir. 2004). Review of counsel's
performance must be comprehensive and not narrowly limited to
counsel's failings in determining whether the presumption
of adequate assistance has been overcome,
Strickland, 466 U.S. at 691, and courts should be
reluctant to second guess the tactics of trial lawyers.
Goodson v. United States, 564 F.2d 1071, 1072 (4th
second prong of the test, a 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
669. In the context of plea bargaining, a petitioner must
show that "the outcome of the plea process would have
been different with competent advice." Lafler v.
Cooper, 132 S.Ct. 1376, 1384 (2012).
Defendant can satisfy neither prong of the
Strickland test. Defendant argues that in her plea
she "reserved the right [to] contest restitution
obligation and amount." She also claims that she was
unaware that her "counsel had not reserved the right to
appeal restitution." Defendant claims that she did not
realize she had waived her right to appeal the restitution
order until the decision of the Fourth Circuit denying her
appeal of the restitution order. This argument is
contradicted by the record, which shows that Defendant's
counsel provided extensive argument on the restitution issue
even if her attorney had failed to inform her that a guilty
plea waived her right to appeal, Defendant has not proven or
even argued that this alleged lack of effective advice was
prejudicial to her defense. Unless Defendant can prove that
this lack of advice led her to pleading guilty rather than
going to trial, Defendant cannot satisfy her burden to show
that her counsel's performance was prejudicial under
Strickland. See Hill v. Lockhart, 474 U.S.
52, 58 (1985) (stating that prejudice in the context of a
guilty plea means that but for counsel's errors there is
a reasonable probability the defendant would have gone to
trial rather than plead guilty). Thus, Defendant has failed
to prove that her counsel provided ineffective assistance.
second ground for relief, Defendant argues that her sentence
of restitution is illegal. This issue was previously decided
on direct appeal to the Fourth Circuit, which dismissed the
appeal because Defendant had waived her right to appeal the
restitution order. Without highly exceptional circumstances,
a § 2255 motion may not be used to relitigate an issue
decided on direct appeal. See Jones v. United
States, 178 F.3d 790, 796 (1999). The record establishes
that Defendant, a trained and experienced attorney, knowingly
and willingly waived her right to appeal both her conviction
and sentence. She signed her name to the plea agreement in
which she agreed that restitution was mandatory and that the
restitution order would cover any losses of the victims.
While under oath, Defendant acknowledged reading and
reviewing the agreement with her attorney. As a result of her
plea, Defendant waived her right to appeal. Thus, Defendant
is barred from relitigating the restitution order in her
§ 2255 motion, and she is not entitled to relief on this
her argument on the legality of the restitution order was not
barred, Defendant's argument lacks merit. Under the
applicable Fourth Circuit precedent, this Court fulfilled its
legal requirements in sentencing. The sentencing court must
make specific factual findings to support a restitution
order. This requirement is satisfied if the sentencing court
adopts a presentence report that contains adequate factual
findings with respect to the restitution amount. See
United States v. Karam, 201 F.3d 320, 329 (4th Cir.
2000). Here, the evidence indicated that Wells Fargo wrote
off $285, 497 in combined losses on the two mortgages and $3,
000 in relocation assistance payments. The total of those
losses equals the amount of restitution ordered. Thus, this
Court has satisfied its obligation to make specific factual
findings on restitution.
this Court finds that an evidentiary hearing on this petition
is not necessary. As the Fourth Circuit held in Raines v.
United States, "[i]t is within the discretion of
the district judge to deny without a hearing Section 2255
motions which state only legal conclusions with no supporting
factual allegations. Allegations of a vague, conclusory or
palpably incredible ...