Etoty v. USA-2255

Filing 4

MEMORANDUM. Signed by Judge Catherine C. Blake on 11/27/2013. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PAULETTE ETOTY
v.
UNITED STATES OF AMERICA

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Civil No. CCB-13-784
Criminal No. CCB-09-609

MEMORANDUM
Paulette Etoty was convicted by a federal jury of social security fraud and aggravated
identity theft, following which this court imposed a sentence of 21 months imprisonment on the
fraud count and 24 months consecutive on the identity theft count. (ECF No. 42; ECF No. 50, at
2). Her conviction was upheld by the Fourth Circuit. U.S. v. Etoty, 679 F.3d 292 (4th Cir. 2012).
She timely filed a motion to vacate under 28 U.S.C. §2255, (Pet’r Mot., ECF No. 73), alleging
ineffective assistance by her appointed counsel, see Strickland v. Washington, 466 U.S. 668, 687
(1984) (holding that to prove ineffective assistance of counsel a defendant must show 1) the
attorney’s performance fell below an objective standard of reasonableness, and 2) the defendant
was prejudiced). The government has responded to the motion, (Gov’t Mem., ECF No. 77), and
Etoty has filed a reply, (Pet’r Reply, ECF No. 80), all of which have been considered. The
motion will be denied.
Etoty identified several ways in which her counsel allegedly was ineffective. (See Pet’r
Mot., at 5-6, 8-9). None have merit. First, she claims counsel should have moved to suppress,
under the Double Jeopardy Clause, 20-year-old letters from Nigeria which the government
allegedly used against her in a prior trial. Even if that constituted a double jeopardy violation,
there is no evidence any such letters were used against her at trial, nor did they affect her
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sentencing. (See Gov’t Mem. Ex. D, at 4, 6). Second, assuming counsel advised her to plead
guilty (advice she did not take), it would have been reasonable advice in light of the substantial
evidence of her guilt. Third, the recorded conversation involving Etoty’s daughter was in fact
excluded from the evidence after defense counsel objected. (Gov’t Mem. Ex A, at 25-26; Gov’t
Mem. Ex. C, at 49). Fourth, there was no basis to request, nor would this court have granted, a
judicial recommendation against deportation, given the seriousness and repeated nature of
Etoty’s fraud. Finally, defense counsel did object to the introduction of Etoty’s prior conviction
for social security fraud, (Gov’t Mem. Ex. B, at 3), and did move to dismiss the indictment on
double jeopardy grounds, (Gov’t Mem. Ex. E), but these motions properly were denied.
In her reply, Etoty raises another immigration issue—that counsel should have arranged a
“safe haven” against deportation, (Pet’r Reply, at 2)—but there is no legal or factual support
suggesting he could have done so. Further, the “humanitarian factors” argued in her reply, (see
id. at 18-25), do not provide a basis to vacate her conviction or otherwise intervene in her
deportation proceedings.
Accordingly, the motion to vacate will be denied without an evidentiary hearing. No
certificate of appealability under 28 U.S.C. §2253 is warranted.
A separate Order follows.

November 27, 2013
Date

/s/
Catherine C. Blake
United States District Judge

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