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United States v. Fillie

United States District Court, D. Minnesota

August 15, 2019


          Erica H. MacDonald, United States Attorney, and Amber M. Brennan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY for plaintiff.

          Finoh Sahr Fillie, Reg. No. 18248-041, pro se defendant.

          ORDER ON § 2255 MOTION


         Defendant 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).

         At the 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.)

         The 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 leader.” Id.

         At 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.

         Fillie 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.


         I. SECTION 2255

         Section 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)).

         Here, 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).

         As to 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, 466 690. 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).

         An 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 ...

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