Mitchell v. United States of America (INMATE 3)
ORDER ADOPTING 16 Report and Recommendation of the Magistrate Judge; ORDERING that petitioner's motion for relief under 28 USC 2255, as amended, is DENIED and this action is DISMISSED, as further set out in order. Signed by Honorable Judge Kristi DuBose on 9/12/18. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CIVIL ACTION 3:16cv540-KKD
UNITED STATES OF AMERICA,
This action is before the Court on the Recommendation of the Magistrate Judge (doc. 16).
After due and proper consideration of the issues raised and there having been no objections filed,
the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED
as the opinion of this Court. Accordingly, it is ORDERED that Petitioner’s motion for relief under
28 U.S.C. § 2255, as amended, is DENIED and this action is DISMISSED.
Rule 11(a) of the Rules Governing § 2255 Proceedings states that the “district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant” in a
§ 2255 proceeding. Where the claims have been rejected on the merits, such as here, “to obtain a
COA, a movant must make ‘a substantial showing of the denial of a constitutional right.’ 28 U.S.C.
§ 2253(c)(2). To make this substantial showing, the movant must demonstrate that ‘reasonable
jurists would find the district court's assessment of the constitutional claims debatable or wrong,’ or
that the issues ‘deserve encouragement to proceed further.’” Vernon v. United States, 2017 WL
6939207, at *3 (11th Cir. June 1, 2017) (unreported opinion), cert. denied, 138 S. Ct. 2638 (2018)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted)).
Mitchell raised three claims of ineffective assistance of counsel and a claim that she was
entitled to a retroactive minor role reduction based on an amendment to the Sentencing Guidelines.
The first and second claims of ineffective assistance of counsel – that her counsel was ineffective
for failing to challenge the method of calculating the loss amount attributed to her and ineffective
for failing to challenge the number of checks cashed - were conclusory and not supported by any
factual allegations. Thus, no reasonable jurist could debate or find wrong the decision to dismiss
this claim. Moreover, the records from Walmart and the Internal Revenue Service showed that 195
refund checks generated from the fraudulent tax returns were cashed at Walmart by one of
As to Mitchell’s third claim, that her counsel was ineffective for failing to challenge the
victim enhancement, no reasonable jurist could debate or find wrong the decision to dismiss this
claim. Mitchell’s petition was based upon Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne
v. United States, 570 U.S. 99 (2013). However, the statutory maximum and minimum sentences for
Mitchell’s offenses were not increased by application of the Sentencing Guidelines victim
enhancement nor were they increased due to any other judicial fact-finding.
Last, Mitchell claimed that she was entitled to a retroactive minor-role reduction based on an
amendment to the Sentencing Guidelines. However, Mitchell had knowingly and voluntarily
waived her right to appeal or collaterally attack her conviction and sentence with the exception of
claims of ineffective assistance of counsel or prosecutorial misconduct. Moreover, the amendment
cited by Mitchell was a clarifying amendment that did not substantively change the section of the
Sentencing Guidelines. Importantly, Mitchell was held accountable only for her personal and direct
involvement in the conspiracy. (Doc. 16, p. 14) Specifically, her leading role in the cashing of the
fraudulent tax refund checks. (Id.) Since a minor role reduction is based on establishing that a
defendant’s role was minor when compared to the relevant conduct attributed to the defendant,
reasonable jurists would not find debatable the Court’s decision to dismiss this claim.
Overall, none of the claims raised in Mitchell’s § 2255 petition meet the threshold.
Accordingly, Mitchell is not entitled to a Certificate of Appealability.
“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is
not taken in good faith.” 28 U.S.C. § 1915(a)(3). Good faith is shown by “seeking appellate review
of any issue that is not frivolous when examined under an objective standard.” Ghee v. Retailers
National Bank, 271 Fed. Appx. 858, 859-860 (11th Cir. 2008) (per curiam) (unpublished) (citing
Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921 (1962)). An action is frivolous,
and consequently not brought in good faith, if it is “without arguable merit either in law or fact.”
Ghee, 271 Fed. Appx. at 859-860 (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
“[A]rguable means capable of being convincingly argued.” Ghee, 271 Fed. Appx. at 860 (quoting
Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (internal quotations and citations omitted)).
Also, if a “claim is arguable, but ultimately will be unsuccessful, it should be allowed to proceed.”
Ghee, 271 Fed. Appx. at 860 (citation omitted).
In consideration of the issues addressed herein, the Court finds that any appeal by Mitchell
of the denial and dismissal of her § 2255 motion would be without merit and therefore not taken in
good faith. Accordingly, she is not entitled to proceed in forma pauperis on appeal.
DONE this 12th day of September 2018.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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