The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Thursday, 19 January, 2012 04:54:49 PM
Clerk, U.S. District Court, ILCD
Petitioner, Latonya M. Clavielle, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) on September 14, 2011.*fn1 On September 18, 2011, Petitioner filed an Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#4). Petitioner filed a Letter (#3) with her Amended Motion (#4) requesting that this court disregard her Initial Motion (#1), therefore this court entered a Text Order vacating Petitioner's Initial Motion (#1). On October 21, 2011, the government filed its Response (#6) to the Petitioner's Amended Motion Pursuant to 28 U.S.C. § 2255. On November 16, 2011, Petitioner filed a Reply (#8). For the following reasons, Petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#4) is DENIED.
At some point in 2008, a fraud investigator for a credit card company became suspicious after noticing that the company had received multiple credit card applications from the same two mailing addresses. An investigation into the use of the credit cards revealed that Petitioner was using a number of credit cards, none of which were issued to Petitioner's legal name. In fact, the investigation produced a video of Petitioner using a credit card, that was not in her name, to make purchases and cash withdrawals. Further investigation revealed that Petitioner was obtaining credit cards by falsifying personal records, using a wide array of variations of names, birth dates, and Social Security numbers, including those of her three minor children as well as two minor children of an ex-boyfriend. From the evidence offered at trial, Petitioner submitted 162 credit card applications and had 31 of these applications accepted by four different credit card companies.
Petitioner was indicted by a federal grand jury on December 2, 2008, on three counts of mail fraud in violation of 18 U.S.C. § 1341 and four counts of Aggravated Identity Theft in violation of 18 U.S.C. § 1028A. On January 28, 2009, Assistant Federal Defender John Taylor ("Taylor") was appointed to represent Petitioner. Petitioner proceeded to a jury trial. At trial, the government offered the following witnesses: (1) Keri Ward, a fraud investigator from Capital One; (2) Inspector Tyler Mower, from the U.S. Postal Inspection Service; (3) Detective Jonathan Seiler, from the Mattoon Police Department; (4) Postmaster Cecil Alan Thornton, from the U.S. Postal Service; (5) Inspector Susan Lidtke, from the U.S. Postal Inspection Service; (6) Corey Clayton, Petitioner's ex-boyfriend, who testified that Petitioner visited her in Ohio and went to retail stores and purchased items on a credit card, and also testified that he did not give Petitioner permission to use his daughters' names and Social Security numbers to apply for credit cards; and (7) Dorothy J. Rankin, a woman who shared a cell with Petitioner at the Champaign County Jail, who testified that Petitioner told her that she had used different alias names for credit cards, generally based on family members' names, to obtain credit cards under false identifications. During Clayton's direct-examination, the government brought out Clayton's prior convictions for drug related offenses. Taylor did not cross-examine Clayton. Taylor cross-examined Rankin by establishing that she was eager to leave jail early and therefore initiated the conversation with authorities about Petitioner's statements, and in fact was able to leave jail early as a result of her assistance. Taylor's cross-examination clearly established that Rankin had something to gain from her testimony. After the government closed its case-in-chief, the Petitioner decided not to offer any evidence.
In closing arguments, Taylor argued that there was reasonable doubt that Petitioner was guilty. Specifically, as he argued in opening statements, Taylor explained that although there was undisputable evidence directly tying Petitioner to the use of fraudulent credit cards and to living at the address where fraudulent cards were mailed to and were found, that it was possible that she was an unwitting participant in the scheme-namely that her family members applied for the cards and then gave her the cards to use on their behalf. On March 31, 2010, Petitioner was found guilty of three counts of mail fraud in violation of 18 U.S.C. § 1341 and two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A.
On July 9, 2010, this court held Petitioner's sentencing hearing. At the hearing, the government dismissed the final two counts of aggravated identify theft, and recommended that Petitioner be sentenced to a term of 85 months imprisonment. Taylor recommended that Petitioner be sentenced to no more than 61 months imprisonment, basing his argument on the fact that Petitioner had a very difficult upbringing. Petitioner spoke on her own behalf and requested lenience, arguing that she understood her mistakes and would not make them again. This court sentenced Petitioner to an advisory guideline sentence of 37 months imprisonment on each of the three counts of mail fraud, to be served concurrently, and to the statutory required mandatory minimum sentence of 24 months imprisonment on the two counts of aggravated identify theft, to be served concurrent to each other but consecutive to the counts of mail fraud, for a total of 61 months' imprisonment. This court also ordered restitution in the amount of $42,169.05.
On July 12, 2010, Petitioner filed a timely notice of appeal to the Seventh Circuit Court of Appeals. On appeal, Petitioner argued that her loss amount was incorrectly calculated because it included not only the credit card debt incurred by the Petitioner, but also the additional interest and fees, resulting in an incorrect sentence and order of restitution. On August 16, 2010, the Seventh Circuit affirmed this court's judgment and sentence.*fn2 On September 14, 2011, Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). On September 18, 2011, Petitioner filed an Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#4).
I. INEFFECTIVE ASSISTANCE OF COUNSEL
The United States Supreme Court has explained that the benchmark for judging a claim of ineffective assistance of counsel is whether "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). For a claim of ineffective assistance of counsel to justify reversal of a conviction, the petitioner must "prove both (1) that his counsel's performance was objectively unreasonable and (2) that he suffered prejudice as a result." Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (citing Strickland, 466 U.S. at 687). To demonstrate that counsel's performance was objectively unreasonable, the movant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. First, the movant must establish specific acts or omissions giving rise to a claim of ineffective assistance, then the court must determine whether such acts or omissions are in fact "outside the wide range of professionally competent assistance." Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). To satisfy the ...