United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A Jackson United States District Judge
the Court are pro se litigant Brenda Benn's
("Petitioner") Motion to Vacate, Set Aside, or
Correct a Sentence pursuant to Title 28, United States Code,
Section 2255 ("2255 Motion"). Having reviewed the
motions and filings, the Court finds that a hearing is not
necessary to address Petitioner's motions. See
28 U.S.C. § 2255(b). For the reasons set forth below,
Petitioner's 2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
July 2009 to February 2014, Petitioner was engaged in a
conspiracy with her two co-defendants, Kevin and Stephanie
Towns, to file fraudulent individual income tax returns. ECF
No. 15 at ¶¶ 1, 7. Petitioner was the owner and
manager of A Plus Tax Service, LLC ("A Plus") and
the manager of NN Financial ("NNF"). Id.
at ¶ 2. As the administrator of both companies,
Petitioner "was primarily responsible for the
administrative functions associated with operating the
businesses, including, but not limited to, paying the
employees, paying the operating costs, and entering into
contracts with vendors and contractors." Id. at
¶ 4. While the her co-conspirators were in charge of
preparing the tax returns, with the help of several
subordinate preparers, Petitioner supervised all of them in
their role as employees. See Id. at ¶ 6.
Petitioner and her co-defendants used various methods to
enlarge individuals' tax returns and taught these
techniques to the subordinate preparers. Id. at
¶¶ 8-14. Petitioner also negotiated a contract with
Santa Barbara Tax Product Group ("SBTPG"), which
processed the tax returns and would take out the fees for
itself, A Plus, and NNF. Id. at ¶ 15-16. During
the time of the conspiracy, Petitioner's businesses
processed false tax returns that totaled $1, 683, 159 in tax
losses. Id. at ¶ 17.
February 23, 2017, Petitioner was named in a seventeen-count
Indictment that charged her with one count of Conspiracy to
Defraud the United States, in violation of 18 U.S.C. §
371, and one count of Aiding the Preparation of False Tax
Returns, in violation of 26 U.S.C. § 7206(2). ECF No. 1.
On August 24, 2017, Petitioner pled guilty to both counts
before Magistrate Judge Douglas Miller. ECF Nos. 50-54. In
the presentence report, the probation officer attributed a
four-level enhancement to Petitioner for being the leader of
the conspiracy. ECF No. 77 at ¶ 14. Petitioner's
counsel noted an objection to this enhancement. Id.
at 16. However, in the sentencing position paper,
Petitioner's counsel did not raise this objection. ECF
No. 80 at 2. On December 6, 2017, the Court accepted
Petitioner's guilty plea as a knowing and voluntary plea
and sentenced her to fifty-seven months of imprisonment and
to pay $1, 683, 159 in restitution to the United States. ECF
October 22, 2018, Petitioner filed her 2255 Motion. ECF Nos.
88-89. Petitioner raises three claims that her attorney was
ineffective because (1) he did not move to dismiss the
Indictment because it was past the statute of limitations;
(2) he did not object to the four-level enhancement for a
leadership role in the offense; and (3) he did not object to
the loss she owes for restitution. ECF No. 89 at 3-6. On
October 23, 2018, the Court ordered the Government to
respond. ECF No. 90. On December 7, 2018, the Government
filed its response. ECF No. 91. Petitioner had an opportunity
to file a reply but did not do so. See ECF No. 90.
2255 allows a federal prisoner "claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States
... [to] move the court which imposed the sentence to vacate,
set aside or correct the sentence." 28 U.S.C. §
2255. In a § 2255 motion, the petitioner bears the
burden of proving his or her claim by a preponderance of the
evidence. See Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958). Additionally, pro se filers are
entitled to more liberal construction of their pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b). Motions under
§ 2255 generally "will not be allowed to do service
for an appeal." Sunal v. Large, 332 U.S. 174,
178-79 (1947). For this reason, issues already fully
litigated on direct appeal may not be raised again under the
guise of a collateral attack. United States v.
Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Issues that
should have been raised on direct appeal are deemed waived,
procedurally defaulted, and cannot be raised on a 2255
Motion. United States v. Mikalajunas, 186 F.3d 490,
492 (4th Cir. 1999). However, an individual may raise a
procedurally defaulted claim if he/she can show (1)
"cause and actual prejudice resulting from the errors of
which he complains" or (2) that "a miscarriage of
justice would result from the refusal of the court to
entertain the collateral attack.. .. [meaning] the movant
must show actual innocence by clear and convincing
evidence." Id. at 492-93.
demonstrate cause and prejudice, a petitioner must show the
errors "worked to [her] actual and substantial
disadvantage, infecting [her] entire trial with error of
constitutional dimensions." United States v.
Frady, 456 U.S. 152, 170 (1982). Ineffective assistance
of counsel claims should generally be raised in a collateral
motion instead of on direct appeal and constitute sufficient
cause to review a procedurally defaulted claim. See
Untied States v. Benton, 523 F.3d 424, 435 (4th Cir.
2008); Mikalajunas, 186 F.3d at 493.
Ineffective Assistance of Counsel
viable ineffective assistance of counsel claim arises when
"the counsel's conduct so undermined the proper
functioning of the adversarial process that the trial did not
result in a just outcome." Strickland v.
Washington, 466 U.S. 668, 686 (1984). To prove a claim
of ineffective assistance of counsel, a petitioner must make
a petitioner must show that counsel's performance was
deficient. Id. at 687. Counsel's errors must
have been so serious that he or she was not actually
functioning as "counsel" as guaranteed by the Sixth
Amendment. Id. In order to demonstrate deficient
performance, a petitioner must show "that counsel's
representation fell below an objective standard ...