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Benn v. United States

United States District Court, E.D. Virginia, Norfolk Division

January 10, 2019

BRENDA BENN, Petitioner,


          Raymond A Jackson United States District Judge

         Before 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.


         From 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.

         On 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 Nos. 82-84.

         On 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.


         A. Section 2255

         Section 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).

         When 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.

         To 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.

         B. Ineffective Assistance of Counsel

         A 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 two showings.

         First, 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 ...

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