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Brenda Rickard v. United States of America

August 15, 2011

BRENDA RICKARD,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Linares, District Judge.

NOT FOR PUBLICATION CLOSED

OPINION

Currently before this Court is Petitioner Brenda Rickard's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States submitted an Answer in response to the motion. The Court has considered the parties' submissions and, for the reasons set forth below, denies Petitioner's motion.

BACKGROUND

A. Conviction, Sentence and Appeal

On September 20, 2007, Brenda Rickard and co-defendant Jamila Davis were each convicted of one count of conspiracy to defraud the United States (in violation of 18 U.S.C. § 371) and seven counts of bank fraud (in violation of 18 U.S.C. §1344). The convictions stemmed from Rickard and Davis' participation in a conspiracy to fraudulently obtain inflated mortgage loans from banks in connection with the purchase of eight residential properties in New Jersey. See United States v. Rickard, 336 Fed. Appx. 235 (3d Cir. 2009). As a result of this scheme, Rickard and Davis allegedly procured approximately $2.25 million and $3.5 million, respectively. Id. at 238-39. During the eleven day trial, the Government introduced ample evidence, including testimony from nine co-conspirators, that Rickard and Davis each performed distinct roles in the scheme: Davis identified target properties, recruited "straw" purchasers, and procured false documentation to support inflated loan amounts, while Rickard handled the closings, including preparing closing documents containing false information, and directed the distribution of the proceeds from the home sales. Id. at 239, 241.

On July 16, 2008, this Court sentenced Rickard to a 121-month term of imprisonment, to be followed by a five-year term of supervised release. Id. at 238. Davis received a 151-month term. Id. The Court also ordered that each defendant pay $12,487,227.51 in restitution. Id.

On July 21, 2008, Rickard and Davis each filed a notice of appeal with the United States Court of Appeals for the Third Circuit. On appeal, Rickard argued that this Court committed five errors: (1) it abused its discretion by failing to sever her trial from Davis', (2) it abused its discretion by not granting her a new trial based on the weight of the evidence presented, (3) it abused its discretion by permitting an alleged co-conspirator to testify about his prior dealings with Rickard, (4) it abused its discretion by instructing the jury on the concept of willful blindness, and (5) it erred in assigning Rickard a four-level sentencing enhancement for being a leader or an organizer. Id. at 239.

In affirming this Court's rulings, the Third Circuit held: (1) severance was not required because the jury could reasonably have been expected to compartmentalize the evidence and there were no inherent conflicts in defenses, (2) defendant waived the argument that guilty verdicts were contrary to the weight of the evidence because she had failed to raise it in her post-trial motion pursuant to Federal Rule of Criminal Procedure 33, (3) any error in allowing challenged testimony of an alleged coconspirator was harmless, (4) evidence supported the giving of willful blindness instruction, and (5) evidence supported this Court's determination that Rickard was an organizer or a leader. Id. at 239-41.

B. Petitioner's Section 2255 Claims

Petitioner now asks this Court to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. In particular, she asserts claims of ineffective assistance of counsel under the Sixth Amendment against her trial, sentencing and appellate, and pretrial attorneys, respectively.

First, Petitioner claims that her trial counsel, Mr. Michael N. Pedicini, Esq., was ineffective for failing to: (1) appropriately advise Petitioner of her Sixth Amendment right to testify, (2) explore or explain the plea process, (3) investigate or call expert witnesses, (4) properly describe Rickard and her company's role in the crime, (5) examine the sufficiency of the evidence, (6) investigate the victims' loss, and (7) object to the admission of testimonial hearsay.

Next, Petitioner claims that her sentencing and appellate counsel, Mr. James W. Parkman, Esq., did not provide her with effective assistance of counsel because Parkman failed to, among other things, prepare an appropriate sentencing memorandum and complete the appeal process by filing a writ of certiorari with the United States Supreme Court.

Finally, Petitioner claims that her pretrial counsel, Ms. Wanda M. Akin, Esq., did not provide her with effective assistance of counsel because Akin: (1) possessed a conflict of interest, (2) initiated mental incompetency issues that made it difficult for Rickard to trust her, and (3) was unavailable for telephone calls and meetings.

LEGAL STANDARD

A. Generally

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress 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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Thus, Petitioner is entitled to relief only if she can demonstrate that she is in custody in violation of federal law or the Constitution.

In considering the instant 2255 motion, this Court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). Moreover, this Court "must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the ...


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