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Adams v. United States

United States District Court, D. New Jersey

December 13, 2018

VERNINA ADAMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ANNE E. THOMPSON UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Vernina Adams ("Petitioner") moves to vacate, correct, or set aside her federal sentence pursuant to 28 U.S.C. § 2255. (ECF No. 7.) Respondent the United States of America opposes the motion. (ECF No. 20.) For the reasons stated herein, Petitioner's motion is denied, and no certificate of appealability will issue.[1]

         II. BACKGROUND

         On July 31, 2013, Petitioner pled guilty to a one-count information charging her with conspiracy to commit bank fraud, 18 U.S.C. § 1349. United States v. Adams, Crim. No. 13-501, ECF No. 165. The charge against Petitioner arose from an international credit card "bust out" scheme that "involved the creation of thousands of false identities, fraudulent identification documents, and doctored credit reports." Crim. No. 13-501, ECF No. 163, ¶ 2. Petitioner's role in the conspiracy was to add the false identities created by her co-conspirators to authorized user tradelines through her business, One Stop Credit Shop, to improve the credit histories of the false identities. Id. ¶¶ 13-14. Petitioner began One Stop Credit Shop in 2009 and promoted it as a service to assist users in improving their credit scores and histories.

         Shortly before Petitioner was arrested on the present charges, she was arrested and charged with wire fraud and identity theft in the Northern District of California ("Offense 584"). The conduct underlying Offense 584 also involved Petitioner's business, One Stop Credit Shop. Petitioner would use the personal information of One Stop Credit Shop users to create fictitious internet businesses and for each fictitious business she would create a Paymate account to process online payments. Paymate is a credit processing service for online businesses based in California. Petitioner and her co-conspirators in Offense 584, which included her relatives and friends, would use their personal debit and credit cards to make purchases from the fictitious businesses. Once the payments were processed, Petitioner would withdraw the funds from the fictitious businesses' Paymate accounts. A few weeks later, Petitioner would contact her credit card company and report that the goods ordered from the fictitious businesses had not arrived and would be issued a "charge back" by the credit card company. On October 23, 2013, Petitioner was sentenced to a total thirty-eight months incarceration on one count of wire fraud and one count of aggravated identity theft.

         On May 6, 2016, Petitioner was sentenced on the instant offense. Crim. No. 13-501, ECF No. 175. This Court, in reliance on the Presentence Report, determined that Petitioner's criminal history category was V, "[Reflecting the fact that she has committed a series of fraud offenses over an extended period of time." (ECF No. 31, at 19:25 to 20:2.) Based on her criminal history category and her offense level under the Sentencing Guidelines, the advisory guidelines range was a sentence of 77 to 96 months. (Id. at 12:11-13.) At sentencing, the Government moved for a downward departure pursuant to § 5K1.1 for substantial assistance. (Id. at 12:24 to 18:7.) Petitioner was thus sentenced to a prison term of forty months with a five-year period of supervised release to run partially concurrently with her sentence on Offense 584 and a sentence for possession of a prohibited object in custody. Crim. No. 13-501, ECF No. 176. Petitioner did not file a direct appeal.

         Petitioner filed her motion to correct, vacate, or set aside her federal sentence under 28 U.S.C. § 2255 in the proper form on February 6, 2017. (ECF No. 7.) Petitioner raises the following arguments in support of her motion, each framed as a claim of ineffective assistance of counsel: (1) for failing to challenge Petitioner's criminal history category as set forth in the Presentence Report; (2) for failing to object to the application of a two-point enhancement under § 2Bl.l(b)(10) for use of "sophisticated means"; and (3) for failing to request that Petitioner receive a credit on her sentence for time served on her sentence for Offense 584.

         III. DISCUSSION

         Section 2255 provides in relevant part that:

[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 . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing on a § 2255 motion unless the "motion and the files and records of the case conclusively show" that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

         The Government argues that Petitioner has waived each of her arguments because she did not raise her claims in a direct appeal and challenges to a sentencing court's application of the Sentencing Guidelines are not cognizable on a § 2255 motion. While it is well-established that a collateral challenge under § 2255 is not a replacement for a direct appeal, United States v. Frady, 456 U.S. 152, 165 (1982), the claims raised by Petitioner contain sufficient allegations of ineffective assistance of counsel to render them cognizable under § 2255. To the extent Petitioner challenges the application of the Guidelines separate from her claims of ineffective assistance of counsel, the Court will not consider those claims. United States v. Ruddok, 82 Fed.Appx. 752, 758 (3d Cir. 2003).

         A defendant seeking to show that his counsel was constitutionally ineffective must meet a "highly demanding" standard. Lockhard v. Fretwell, 506 U.S. 364, 378 (1993). To prevail on a claim of ineffective assistance of counsel, the defendant must show: 1) his counsel's performance fell below an objective standard of reasonable professional assistance; and 2) that counsel's deficient performance prejudiced the defense, meaning there is a reasonable probability that, but for ...


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