ALLEN v. USA
Filing
15
ENTRY - Denying Motion for Relief Pursuant to 28 U.S.C. ' 2255 and Directing Entry of Final Judgment; The docket and transcript in this action show conclusively that Hatcher is not entitled to the relief she seeks. Hatcher's counsel at sentencing and on appeal was competent. Hatcher's motion for relief pursuant to ' 2255 is denied, and this action must be dismissed with prejudice. The court therefore denies a certificate of appealability. Judgment consistent with this Entry shall now issue. Signed by Judge Sarah Evans Barker on 4/25/2013. Copy Mailed.(CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VANESSA ALLEN HATCHER,
Petitioner,
vs.
UNITED STATES OF AMERICA.
Respondent
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Case No. 1:10-cv-704-SEB-MJD
Case No. 1:08-cr-31-SEB-KPF-1
Entry Denying Motion for Relief Pursuant to
28 U.S.C. ' 2255 and Directing Entry of Final Judgment
For the reasons explained in this Entry, Vanessa Allen Hatcher’s request for relief
pursuant to 28 U.S.C. ' 2255 and for an evidentiary hearing is denied. A certificate of
appealability is also denied.
I. Background
On June 17, 2008, Vanessa Allen Hatcher pled guilty to Conspiracy to Use Fire to
Commit Mail Fraud pursuant to a written Plea Agreement. The Plea Agreement provided that
Hatcher would plead guilty to Count 1 of the Indictment and that, at sentencing, the United
States would move to dismiss Counts 2, 3, 4, and 5 of the Indictment. The Plea Agreement
expressly provided that the United States could argue for the imposition of a sentence above the
guidelines range determined to be applicable, also expressly noting that the guidelines were
advisory and not binding on the Court. Plea Agreement ¶ 2. Additionally, the Plea Agreement
referenced Hatcher’s understanding that “the Court will consider the factors set forth
in 18 U.S.C. § 3553(a) in determining the appropriate sentence within the statutory range.” Id.
On September 17, 2008, Hatcher was sentenced based on the sentencing considerations
set forth in 18 U.S.C. § 3553(a)(1). The Court departed upward in fashioning its sentence,
imposing a term of imprisonment of 121-months followed by three years of supervised release.
The Court ordered restitution in the amount of $2,299,321.18 and imposed the
mandatory assessment of $100. Hatcher appealed her sentence to the Seventh Circuit, arguing
“generally that her 121-month sentence was unreasonable.” United States v. Hatcher, 329 Fed.
Appx. 26, 27 (7th Cir. 2009) (unpublished). On June 8, 2009, the Seventh Circuit affirmed
Hatcher’s sentence. Id. at 29 (“When a sentencing judge, as here, has ‘made a searching
evaluation of a defendant’s case, applied the statutory mandated factors to the sentence and
clearly articulated why the given defendant warrants a sentence that would be a departure from
the correct range, the sentence is reasonable.’”)
Now before the court is Hatcher’s motion for post-conviction relief in which she seeks a
sentence reduction under the theory that she was provided ineffective assistance of counsel.
II. Discussion
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However,
“[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt
v. U.S., 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is
“constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete
miscarriage of justice.” Barnickel v. U.S., 113 F.3d 704, 705 (7th Cir.1997) (quotations omitted).
It is appropriate to deny a § 2255 motion without an evidentiary hearing if “the motion and the
files and records of the case conclusively demonstrate that the prisoner is entitled to no relief.”
28 U.S.C. § 2255.
Hatcher claims that she is entitled to relief under § 2255 because her counsel failed to
provide effective assistance as guaranteed by the Sixth Amendment. The Sixth Amendment to
the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ...
to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. This right to
assistance of counsel encompasses the right to effective assistance of counsel. McMann v.
Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.
2009).
A party claiming ineffective assistance of counsel bears the burden of showing: (1) that
her trial counsel’s performance fell below objective standards for reasonably effective
representation, and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 688–94 (1984); U.S. v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). To satisfy the first
prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of
his counsel. Wyatt v. U.S., 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider
whether in light of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id.
Hatcher asserts that her trial counsel was ineffective in his representation of her at the
sentencing proceeding and on appeal in failing to object to the Presentence Investigation Report,
failing to argue effectively at sentencing, failing to raise a challenge under Rule 32 of the
Federal Rules of Criminal Procedure and misinforming her of the sentence she was likely to
receive. Hatcher additionally alleges that her counsel was ineffective on appeal. For the reasons
explained below each of Hatcher’s specifications of ineffective assistance of counsel is without
merit and her petition must be denied.
A.
Presentence Investigation Report
First, Hatcher asserts that her counsel should have challenged the accuracy of the
Presentence Investigation Report (“PSR”). But Hatcher herself voiced no objections to the PSR
during her colloquy with the Court. Even now, Hatcher has failed to identify any inaccuracy in
the PSR which resulted in Hatcher’s receiving a sentence above her advisory guidelines range. In
fact, Hatcher’s sentence was the result of the Court’s extensive, careful, individualized
assessment of the 18 U.S.C. § 3553(a) factors in conjunction with the PSR and the advisory
sentencing guidelines. In addition, this Court’s reasoning and methodology in fashioning
Hatcher’s sentence was specifically scrutinized and approved by the Seventh Circuit in Hatcher’s
direct appeal. See United States v. Hatcher, 329 Fed. Appx. at 27-28. No relief on this basis is
thus called for. See Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995).
B.
Advocacy at Sentencing
Next, Hatcher suggests that, if her attorney had argued more effectively on her behalf at
sentencing, she would have received a lesser sentence. More specifically, Hatcher argues that her
sentence was disproportionately severe compared to her co-defendants. But, Hatcher fails to
articulate what argument(s) her counsel could have advanced on this issue which would have
helped her cause. Hatcher argues that the Court never “heard or read any accurate disparity in the
sentences of the co-defendants.” Reply, dkt 10 at p.2. This assertion is inconsistent with the
record. As discussed at sentencing, Hatcher’s role in the offense resulted in a significantly higher
sentence than her co-defendants, including Mr. Allen, in part because Hatcher was the director of
the conspiracy, responsible for nearly 40 fires causing losses of $2.3 million and injuring two
people. These crimes defaced a major swath of the community, instilling fear in the citizenry.
Sent. Trans. 28-40.
To the extent Hatcher argues that there was a “motion filed by the Government asking for
the imposition of a sentence above the advisory guidelines range” of which she was not made
aware, she is mistaken. Pet. Reply, dkt. 10 at p.3. The docket reflects no such written motion.
Instead, the government provided the Defendant and her counsel with both notice and an
opportunity to respond by advocating during the sentencing hearing for a sentence above
the advisory guidelines range.
C.
Rule 32(h) of the Federal Rules of Criminal Procedure
Hatcher’s third argument is that her counsel should have argued that this Court violated
Rule 32(h) of the Federal Rules of Criminal Procedure by imposing an upward departure from
the sentencing guidelines without first providing notice of the Court’s intention to do so. Rule
32(h) provides that: “Notice of Possible Departure from Sentencing Guidelines: Before the court
may depart from the applicable sentencing range on a ground not identified for departure either
in the presentence report or in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure.”
At sentencing, the Court announced its intended sentence prior to final imposition, thus
providing an opportunity to object or ask for further elaboration of the reasons for the intended sentence.
Sent. Trans. 39-43. No objections followed and the sentence was officially imposed. Id. at 44. In
addition, the Court relied on the factors set forth in 18 U.S.C. § 3553, the PSR and the stipulated
facts in determining Hatcher’s sentence. There is no basis on which to find that the Court violated
Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714 (2008) (holding that Rule 32(h)
“does not apply to 18 U.S.C. § 3553 variances by its terms”); United States v. Walker, 447 F.3d
999, 1007 (7th Cir. 2006) (holding that Rule 32(h) does not apply when a district court exercises
its discretion and makes an upward variance based on factors specified in § 3553(a)). In addition,
because the guidelines are advisory in nature, see United States v. Booker, 543 U.S.
220 (2005), the risk of unfair surprise that led to the creation of Rule 32(h) is no longer
present. United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006). See also United States v.
Vampire Nation, 451 F.3d 189, 195-96 (7th Cir. 2006) (“the ‘unfair surprise’ considerations that
motivated the enactment of Rule 32(h)” are no longer applicable.). Accordingly, this alleged
error lacks legal merit. Counsel is not ineffective for failing to raise issues or challenges under
the § 3553 rubric. See, e.g., Stewart v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996) (Afailure to
raise such a meritless claim could not possibly constitute ineffective assistance of counsel.@).
Hatcher also alleges in onclusory fashion that her counsel was ineffective in failing
to appeal this issue. Because there was no violation of Rule 32(h), there was no meritorious
issue for Hatcher’s counsel to appeal.
D.
Anticipated Sentence Miscalculation
Hatcher asserts that her counsel failed to advise her accurately as to the sentence she
might receive. Such a “miscalculation, standing alone, could never suffice to demonstrate
deficient performance unless the inaccurate advice resulted from the attorney’s failure to
undertake a good-faith analysis of all of the relevant facts and applicable legal principles.”
Bridgemen v. United States, 229 F.3d 589, 592 (7th Cir. 2000). Hatcher has made no showing
that any such “failure to undertake a good-faith analysis” by her counsel occurred or that her
counsel failed to understand “the relevant facts and applicable legal principles” that resulted in
her sentence. The fact that Hatcher received a more severe sentence than she (and perhaps her
trial counsel) expected does not demonstrate any ineffectiveness on her counsel’s part. The Court
fully apprised her of the applicable range of the sentencing options at her change of plea hearing
(including the maximum period of incarceration of 20 years for the offense charged in Count I)
and Hatcher does not present any evidence that the result of the proceedings would have been
different had her trial counsel correctly guessed the sentence the court ultimately imposed.
E.
Direct Appeal
Finally, Hatcher asserts that her counsel was ineffective on direct appeal. Counsel is
ineffective with respect to an appeal only when that counsel fails to raise issues that were (1)
obvious; and (2) clearly stronger that those presented. See Kelly v. United States, 29 F.3d 1107,
1112 (7th Cir. 1994). Hatcher has not identified any such issues. “In the context of an appeal,
counsel need not raise every conceivable argument that is supported by the record.” Hollenback
v. United States, 987 F.2d 1272, 1275 (7th Cir. 1993).
III. Evidentiary Hearing
Hatcher includes but without development the contention that she is entitled to an
evidentiary hearing on the issues raised in this ' 2255 motion. AA ' 2255 petitioner is entitled to
an evidentiary hearing on [her] claim where [she] alleges facts that, if true, would entitle [her] to
relief.@ Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010) (citing Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir. 2009); Hall v. United States, 371 F.3d 969, 972 (7th Cir.
2004)). On the other hand, a hearing Ais not required when >the files and records of the case
conclusively show that the prisoner is entitled to no relief.=@ Id. (quoting 28 U.S.C. ' 2255(b)).
For the reasons explained above, the record in this case conclusively establishes that Hatcher is
not entitled to relief making any such hearing unnecessary. Therefore, her request for an
evidentiary hearing is denied.
IV. Conclusion
For the reasons explained above, Hatcher has failed to demonstrate a constitutional
violation warranting collateral relief. The docket and transcript in this action show conclusively
that Hatcher is not entitled to the relief she seeks. Hatcher’s counsel at sentencing and on appeal
was competent. Accordingly, Hatcher’s motion for relief pursuant to ' 2255 is denied, and this
action must be dismissed with prejudice. Judgment consistent with this Entry shall now issue.
V. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing ' 2255 Proceedings, and 28 U.S.C. ' 2253(c), the court finds that Hatcher has failed
to show that reasonable jurists would find this court's Aassessment of the constitutional claims
debatable or wrong.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.
04/25/2013
Date: __________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
VANESSA ALLEN HATCHER
#08772-028
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