United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK, District Judge.
Mary Wesley is a federal prisoner who is proceeding pro se on a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The Government has submitted a response to the motion, and the Wesley has submitted a rebuttal thereto. This matter is ripe for review. Having considered the pleadings and the record, including the relevant parts of Wesley's underlying criminal case, along with the relevant law, the Court finds that an evidentiary hearing is unnecessary, and that the motion should be denied.
Background Facts and Procedural History
Mary Wesley was charged in an eleven-count superseding indictment alleging that she and other co-conspirators conspired to and did prepare and submit fraudulent tax returns in violation of 18 U.S.C. § 371 and 26 U.S.C. § 7206(2). Wesley proceeded to trial on May 23, 2011, where she was convicted on Counts 1, 8, 9, 10, and 11 and acquitted on Counts 2, 3, 4, 5, 6, and 7. On December 20, 2011, Wesley was sentenced to a term of incarceration of 120 months (twenty-four months on each count), and she was ordered to pay restitution in the amount of $5, 570, 945. Wesley appealed her conviction to the Fifth Circuit, which affirmed the conviction and sentence in an order issued November 19, 2012. United States v. Wesley, 491 F.Appx. 507, 2012 WL 5835257 (5th Cir. Nov. 19, 2012). On or about October 30, 2013, Wesley filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising four grounds for relief, as paraphrased by the Court:
Ground One: The Court improperly speculated as to the amount of loss.
Ground Two: The charges in the indictment fall outside of the statute of limitations.
Ground Three: Counsel rendered ineffective assistance in failing to object to her sentence
since the Guideline range used by the Court included loss that occurred outside of the statute of limitations.
Ground Four: The restitution ordered by the Court incorrectly considered loss that occurred outside the statute of limitations.
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164 (1982). A motion brought pursuant to § 2255 is a "means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citation omitted). There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. Collateral attack limits a defendant's allegations to those of "constitutional or jurisdictional magnitude." United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citation omitted). Relief under § 2255 is reserved, therefore, for violations of "constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
In her first ground for relief, Wesley argues that this Court improperly speculated as to the proper amount of tax loss involved in the offense. As the Court understands her argument, Wesley maintains that the Court improperly speculated about the amount of attempted loss in the case by considering both proper and fraudulent returns in its calculations. Wesley contends that she prepared tax returns for a large group of people, and that she was only charged and convicted for submitting fraudulent returns for a small subset of individuals. Wesley argues that the Court erred by including a vast number of lawful tax returns in its calculation of intended loss, and that it erred in not determining whether the returns for which she was held accountable ...