United States District Court, D. Nevada
before the court is petitioner Carolyn Shelmadine
Willis-Casey's (“petitioner”) motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 950). The United States of America
(“the government”) filed a response (ECF No.
960), to which petitioner replied (ECF No. 968).
before the court is petitioner's motion for early
termination of supervised release. (ECF No. 965). The
government did not file a response, and the time to do so has
20, 2014, the federal grand jury returned the third
superseding indictment charging petitioner with aiding and
abetting theft of government money, conspiracy, and several
counts of mail fraud. (ECF No. 240). Petitioner proceeded to
trial, and on January 19, 2016, a jury verdict was entered
finding petitioner guilty of count 20, mail fraud. (ECF No.
30, 2016, the court sentenced petitioner to 30 months'
custody followed by a three-year term of supervised release
with special conditions. (ECF No. 811). Restitution was
ordered in the amount of $218, 708, jointly and severally
with codefendants Frederick Williams, Denise Williams, and
Jacqueline Gentle. (ECF Nos. 832). Judgment was entered on
July 13, 2016. (ECF No. 826).
12, 2016, petitioner filed a notice of appeal. (ECF No. 824).
The Ninth Circuit affirmed petitioner's conviction and
sentence on March 22, 2018. (ECF No. 913). The order on
mandate affirming the district court's judgment was
entered on December 12, 2018. (ECF No. 933).
instant motion, petitioner moves to vacate arguing
ineffective legal counsel based on trial counsel's
failure to investigate, failure to move to sever, failure to
object to the admissibility of certain evidence, and the
government's use of knowingly-perjurious testimony in
violation of due process. (ECF No. 950).
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Section 2255 relief should be granted only where “a
fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
a defendant has raised a claim and has been given a full and
fair opportunity to litigate it on direct appeal, that claim
may not be used as basis for a subsequent § 2255
petition.” United States v. Hayes, 231 F.3d
1132, 1139 (9th Cir. 2000). Further, “[i]f a criminal
defendant could have raised a claim of error on direct appeal
but nonetheless failed to do so, ” the defendant is in
procedural default. Johnson, 988 F.2d at 945;
see also Bousley v. United States, 523 U.S. 614, 622
who fail to raise an issue on direct appeal may later
challenge the issue under § 2255 only if they
demonstrate: (1) sufficient cause for the default; and (2)
prejudice resulting from it. See Bousley, 523 U.S.
at 622. The “cause and prejudice” exception
revives only defaulted constitutional claims, not
nonconstitutional sentencing errors. United States v.
Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).
ineffective-assistance-of-counsel claims are an exception to
procedural default, since the trial record is often
inadequate for the purpose of bringing these claims on direct
appeal. Massaro v. United States, 538 U.S. 500,
504-05 (2003); see also Schlesinger, 49 F.3d at 509
(“[F]ailure to raise an
ineffective-assistance-of-counsel claim on direct appeal does
not bar the claim from being brought in a later, appropriate
proceeding under § 2255.”).
Section 2255 motion
purpose of the effective assistance guarantee is “to
ensure that criminal petitioners receive a fair trial.”
Strickland v. Washington, 466 U.S. 668, 689 (1984).
To prevail on a claim of ineffective assistance of counsel,
the petitioner must show that her counsel's performance
was deficient and that she was prejudiced by that deficiency.
Id. at 687.
the defendant must show that counsel's performance was
deficient.” Id. “Judicial scrutiny of
counsel's performance must be highly deferential.”
Id. at 689. “A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight . . . .”
Id. at 689. “[A] court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. To establish
deficient performance, the petitioner “must show that
counsel's representation fell below an objective standard
of reasonableness.” Id. at 688.
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. “The defendant
must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been ...