United States District Court, D. New Jersey
E. THOMPSON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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).
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).
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 ...