United States District Court, D. Minnesota
H. MacDonald, United States Attorney, and Amber M. Brennan,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY for plaintiff.
Sahr Fillie, Reg. No. 18248-041, pro se defendant.
ORDER ON § 2255 MOTION
R. TUNHEIM, CHIEF JUDGE UNITED STATES DISTRICT COURT
Finoh Sahr Fillie and twenty-four others were charged with
bank fraud, aggravated identity theft, and conspiracy to
commit bank fraud on October 21, 2014. (Indictment
¶¶ 14, 21, 24, Oct. 21, 2014, Docket No. 1.) Fillie
pled guilty to two counts: Count 1 for conspiracy to commit
bank fraud and Count 35 for aggravated identity theft. (Plea
Tr. at 8:2-11, 42:24-43:20, Aug. 4, 2015, Docket No. 676.) A
short summary of the facts of the case is described in
United States v. Gaye, 902 F.3d 780, 785-86
(8th Cir. 2018).
change of plea hearing, the Court noted that the United
States and Fillie had a “disagreement as to whether
there should be an adjustment for [Fillie's] role in the
offense, ” and that “if there is no agreement on
[the dispute] prior to sentencing, the Court will resolve it
after hearing argument from both sides.” (Plea Tr. at
36:13-19.) The issue was vigorously argued by both sides.
(See USA Sentencing Mem. at 24-26, Jan. 26, 2017,
Docket No. 1278; Def.'s Sentencing Mem. at 11-12, Jan.
18, 2017; Sentencing Tr. at 7:8-8:22, 13:18-14:10, Feb. 28,
2017, Docket No. 1343.)
Court applied a three-level enhancement for Fillie's role
in the offense. (Tr. Sentencing at 21:23-22:8.) Fillie
appealed the three-level enhancement. Gaye, 902 F.3d
at 792-93. The Eighth Circuit affirmed, concluding that the
record supported the Court's finding that there was
“some level of organization on the part of Mr. Fillie,
” however, the Court “consider[ed] him to be a
manager and supervisor, ” and not “a
sentencing, the Court found Fillie accountable for actual
losses of $770, 551.08, a finding that Fillie appealed.
Id. at 792. The Eighth Circuit held that “it
was not clearly erroneous to conclude that the transactions
of Fillie's co-conspirators were reasonably foreseeable
to him. The court properly held Fillie responsible for the
full amount of loss.” Id.
now moves the Court to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. (§ 2255 Mot., Mar.
11, 2019, Docket No. 1679.) Fillie alleges that his defense
counsel was constitutionally ineffective for: (1) coercing
Fillie to agree to a higher loss amount in the plea
agreement; (2) promising him he would receive a six-year
sentence for pleading guilty; (3) not pursuing a downward
departure under U.S.S.G. § 5K2.23 or a hard time
variance; (4) verbally forcing him into an involuntary plea;
and (5) failing to pursue various other “fundamental
errors” in the case. (See generally §
2255 Mot; Def.'s Mem. Supp., Mar. 11, 2019, Docket No.
1680.) The Court will deny the § 2255 motion because
Fillie fails to allege facts supporting his arguments, the
facts he alleges are directly contradicted by the record, or
the facts alleged do not rise to the level of ineffective
assistance of counsel.
2255 permits a prisoner held in federal custody to move a
sentencing court to “vacate, set aside or
correct” a sentence. 28 U.S.C. § 2255(a). Relief
under Section 2255 “is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if
uncorrected, would result in a complete miscarriage of
justice.” Walking Eagle v. United States, 742
F.3d 1079, 1081-82 (8th Cir. 2014) (quoting
United States v. Apfel, 97 F.3d 1074, 1076
(8th Cir. 1996)).
Fillie alleges that his counsel was constitutionally
ineffective. A defendant has the right to effective
assistance of counsel at all critical stages of a criminal
proceeding, including plea agreements. U.S. Const. amend. VI;
Missouri v. Frye, 566 U.S. 134, 140 (2012). To
demonstrate ineffective assistance of counsel, Fillie must
make two showings: (1) counsel's performance “fell
below an objective standard of reasonableness” and (2)
counsel's deficient performance was “prejudicial to
the defense.” Strickland v. Washington, 466
U.S. 668, 688, 692 (1984).
the first showing, Fillie must demonstrate that-under the
circumstances- counsel's “acts or omissions were
outside the wide range of professionally competent
assistance.” Strickland, 466 U.S.at 690. As to
the second showing, Fillie must demonstrate that “there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability” is one “sufficient to
undermine confidence in the outcome.” Id. When
alleging ineffective assistance of counsel as to his guilty
plea, Fillie must show “a reasonable probability that,
but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
evidentiary hearing must be held on a Section 2255 motion
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). When a factual
dispute exists or a credibility determination is needed, an
evidentiary hearing is required. Thomas v. United
States, 737 F.3d 1202, 1206 (8th Cir. 2013).
A court may deny an evidentiary hearing if (1) the petitioner
would not be entitled to relief even if the court accepts all
his allegations as true, or ...