Opinion
Civil Action 1:23-cv-140 Criminal 1:19-cr-01097-1
07-31-2024
SYLVIA P. ATKINSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
MAGISTRATE JUDGE'S AMENDED REPORT AND RECOMMENDATION
This Amended Report and Recommendation is issued in response to Attorney Randy Schaffer's “Advisory to the Magistrate Judge.” Dkt. No. 33; See p. 3, 14-17. While it does not change the Court's analysis or recommendation, this amended Report and Recommendation is being issued for clarification purposes only.
Ignacio Torteya, III United States Magistrate Judge
The Court is in receipt of Sylvia P. Atkinson's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct” and her “Memorandum of Law in Support” (Atkinson's “2255 Motion”). Dkt. No. 1. The Court is also in receipt of Respondent's “Motion for Summary Judgment” (Government's “Motion”) and Atkinson's “Reply to Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. Sec. 2255 and Memorandum of Law in Support” (Atkinson's “Response”). Dkt. Nos. 25, 30. For the reasons provided below, it is recommended that the Court: (1) GRANT the Government's Motion; (2) DENY the claims presented in Atkinson's 2255 Motion; (4) DIRECT the Clerk of Court to close this case; and (5) DECLINE to issue a certificate of appealability.
I. Jurisdiction
The Court has federal question subject matter jurisdiction over the claims and the parties pursuant to 28 U.S.C. §§ 1331 and 2255. Dkt. No. 1; 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).
II. Background and Factual Summary
The factual information was obtained from the related criminal case, 1:19-cr-01097-1, Atkinson's 2255 Motion, and Atkinson's Reply. CR Cause No. 1:19-cr-01097-1; Dkt. Nos. 1, 30.
A grand jury indicted Atkinson on the following eight counts: (1) one count of conspiracy to commit bribery; (2) one count of bribery concerning programs receiving federal funds; and (3) six counts of using facilities of interstate commerce to promote bribery of a public official. CR Dkt. No. 44. Atkinson entered a plea of not guilty. CR Dkt. Min. Entry Dec. 11, 2019. A jury trial followed, beginning on October 26, 2020, and ending on November 4, 2020. See CR Dkt. Min. Entries Dated Oct. 26, 2020 - Nov. 4, 2020.
Atkinson held multiple official positions in the Brownsville Independent School District (“BISD”) and the Rio Hondo Independent School District (“RHISD”). CR Dkt. No. 145 at 8-9. An FBI investigation revealed that Atkinson abused those positions by aiding others in securing contracts with BISD and RHISD in exchange for money and other benefits. Id. at 9-10. Using her official positions, Atkinson placed items on the BISD board agenda for consideration, voted for those items, and ensured there were enough votes for the items to pass and contracts to be awarded. Id. at 16.
During the trial, the Government presented evidence of several incidents where Atkinson used her position as a BISD or RHISD board member by taking money in exchange for assistance in obtaining contracts with the school districts. CR Dkt. Nos. 148155. However, Atkinson's trial centered around one particular “fake film project.” CR Dkt. No. 148 at 27-28. For this film project, Atkinson received bribes totaling $10,000 to assist a film company in using BISD facilities to film a movie. Id. at 27. The evidence showed Atkinson was paid, by a confidential informant, $4,000 to put the film project proposal on the BISD board meeting agenda and $6,000 after the BISD Board approved the film's production at BISD facilities. Id. at 27-28.
On November 4, 2020, the jury returned a guilty verdict on all eight counts. CR Dkt. No. 119. U.S. District Judge Fernando Rodriguez, Jr. sentenced Atkinson to 80 months' imprisonment on count 2 and 60 months' imprisonment as to each of the other counts (all to be served concurrently), a $35,000 fine, and a three-year term of supervised release. CR Dkt. No. 183. Atkinson, through counsel, timely appealed to the Fifth Circuit Court of Appeals; her conviction and sentence were affirmed. United States v. Atkinson, No. 21-40470, 2022 WL 2383867, at *4-5 (5th Cir. July 1, 2022) (per curiam). Attorneys Noe D. Garza, Jr. and Dale Robertson represented Atkinson at trial. Dkt. Nos. 15, 16. Attorney Josh Schaffer represented Atkinson at sentencing after her conviction and served as co-counsel on appeal. Dkt. No. 20 at 2. Randy Schaffer was lead appellate counsel. Dkt. No. 12 at 1.
On September 18, 2023, Atkinson timely filed her 2255 Motion. Dkt. No. 1. Construing her pro se pleadings liberally, Atkinson's 2255 Motion raises the following grounds for relief: (1) Atkinson's bribery charge cannot stand because of recent Supreme Court decisions; (2) Garza and Robertson failed to obtain a plea offer; (3) Garza and Robertson failed to explain the consequences of going to trial; (4) Garza and Robertson failed to investigate Atkinson's claims; (5) Garza and Robertson failed to present evidence at trial; (6) Garza and Robertson failed to advise Atkinson against testifying on her behalf; and (7) Garza and Robertson failed to adequately defend Atkinson at the sentencing hearing. Dkt. No. 1. Most of her claims appear to allege ineffective assistance of counsel.
On November 17, 2023, the Court ordered Attorneys Noe Garza, Dale Robertson, Josh Schaffer, and Randy Schaffer to each file an affidavit in response to Atkinson's ineffective assistance of counsel claims. Dkt. Nos. 10. Each attorney complied with the Order. Dkt. Nos. 12, 15, 16, 20. On January 29, 2024, the Government filed its Motion requesting the Court deny Atkinson's 2255 Motion. Dkt. No. 25. Atkinson filed her Response to the Government's Motion on April 15, 2024. Dkt. No. 30. The Government did not file any reply. This case is now ripe for the Court's consideration.
III. Legal Standard
Postconviction relief under 28 U.S.C. § 2255 is limited to errors of constitutional dimension that could not have been raised on direct appeal and that, if left unaddressed, would result in a complete miscarriage of justice. See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); see also United States v. Rodriguez-Castro, 814 Fed.Appx. 835, 837-38 (5th Cir. 2020) (per curiam). Given these limitations, a federal defendant may move to vacate, set aside, or correct her sentence under § 2255 only if: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeds the statutory maximum; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).
B. Fed. R. Civ. P. 56.
The standard applied when ruling on a motion for summary judgment is set forth in Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 56(a). In pertinent part, Rule 56 provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering a motion for summary judgment, the court must view the evidence and “construe all facts and inferences in the light most favorable to the nonmoving party.” Valderas v. City of Lubbock, 937 F.3d 384, 388 (5th Cir. 2019) (per curiam). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007). “A fact is material if its resolution could affect the outcome of the action.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020) (cleaned up). “A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018) (per curiam) (cleaned up). In the context of habeas petitions, the Federal Rules of Civil Procedure apply to the extent that they are not inconsistent with Rules Governing Section 2255 Proceedings. Rules Governing § 2255 Proceedings, Rule 12, 28 U.S.C.A. § 2255; see also Fed. R. Civ. P. 81(a)(4).
C. Ineffective Assistance of Counsel.
The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical' stages of the criminal proceedings” instituted against them. Missouri v. Frye, 566 U.S. 134, 140 (2012) (citing Montejo v. Louisiana, 556 U.S. 778, 786 (2009)). Critical stages include not only trial, but also pretrial proceedings - including the pleabargaining process. Lafler v. Cooper, 566 U.S. 156, 165 (2012); Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 57 (1985). Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing is also constitutionally impermissible. Lafler, 566 U.S. at 165.
Whether a criminal defendant has been denied effective assistance of counsel is governed by Strickland v. Washington's two-part inquiry:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.466 U.S. 668, 687 (1984). To demonstrate that an attorney's performance was constitutionally deficient, a defendant bears the burden to prove that her counsel's representation “fell below an objective standard of reasonableness.” Id. at 687-88. In reviewing counsel's performance, the Court must be “highly deferential,” making every effort “to eliminate the distorting effects of hindsight,” and must “indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.” Id. at 689. To establish prejudice, the convicted defendant must show 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 a probability sufficient to undermine confidence in the outcome.” Id. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id.
The prejudice prong of Strickland focuses on whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles her. Williams, 529 U.S. at 393 n. 17; see also Strickland, 466 U.S. at 692 (same).
Because a convicted defendant must satisfy both prongs of the Strickland test, a failure to establish either deficient performance or actual prejudice under that test will ordinarily make it unnecessary to examine the other prong. See Strickland, 466 U.S. at 700; Ransom v. Johnson, 126 F.3d at 716, 721 (5th Cir. 1997); United States v. Seyfert, 67 F.3d 544, 547 (5th Cir. 1995); Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994). Thus, a failure to establish that counsel's alleged performance fell below an objective standard of reasonableness renders the issue of prejudice moot. See United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990); Thomas v. Lynaugh, 812 F.2d 225, 229-30 (5th Cir. 1987). It is also generally unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. See Black v. Collins, 962 F.2d at 401; Martin v. McCotter, 796 F.2d 813, 821 (5th Cir. 1986).
IV. Discussion
Atkinson generally claims that: (1) her bribery charge cannot stand because of recent Supreme Court decisions; and (2) her counsel rendered ineffective assistance for a myriad of reasons. Dkt. No. 1. In its Response, the Government argues that Atkinson has not met her burden of showing that her counsel performed deficiently, or that Atkinson suffered prejudice as a result. See Dkt. No. 25 at 19-20.
Because she is proceeding pro se, Atkinson's pleadings are liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A. Atkinson's Claim that Her Bribery Charge Cannot Stand Because of the Supreme Court's Decisions on “Honest Services” Offenses
Atkinson claims her bribery charge cannot stand in light of recent Supreme Court decisions. Dkt. No. 1 at 24-25. Atkinson argues that the Supreme Court curtailed prosecution of “honest services” fraud in situations like hers and “held that prosecutions under 18 U.S.C. § 1346 must be limited to cases involving bribery or kickbacks.” Id. Atkinson relies on the Supreme Court's decisions in Skilling and Cleveland to support her argument regarding those limited prosecutions under 18 U.S.C. §§ 1343 and 1346. Id.
Atkinson's reliance on Skilling and Cleveland is mistaken. In Skilling and Cleveland, the Supreme Court discusses violations of 18 U.S.C. §§ 1343 and 1346. Skilling v. United States, 561 U.S. 358, 367 (2010); Cleveland v. United States, 531 U.S. 12, 15 (2000). However, Atkinson was not charged with, or convicted of, violating 18 U.S.C. §§ 1343, or 1346. Dkt. No. 25 at 17-18; CR Dkt. No. 183. Atkinson was convicted of conspiracy to commit bribery in violation of 18 U.S.C. § 371; federal program bribery in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2; and using facilities in interstate commerce to promote bribery of a public official in violation of 18 U.S.C. §§ 1952 and 2. CR Dkt. No. 183. Atkinson's argument, then, lacks merit.
B. Atkinson's Claim that Garza and Robertson Rendered Ineffective Assistance
As noted above, Atkinson's 2255 Motion raises six distinct claims for relief rooted in an allegation that her counsel provided her with ineffective assistance of counsel. Dkt. No. 1. Specifically, Atkinson alleges her counsel: (1) failed to obtain a plea offer from the Government; (2) failed to explain the consequences of going to trial; (3) failed to investigate her claims; (4) failed to present evidence at trial; (5) failed to advise Atkinson against testifying on her behalf; and (6) failed to adequately defend her at the sentencing hearing. Id. The Court will address each of these claims in turn.
1. Atkinson's Claim that Garza and Robertson's Failed to Obtain a Plea Agreement
In her first claim, Atkinson asserts that Attorneys Garza and Robertson did not seek a plea agreement from the Government. Dkt. No. 1 at 13-14. However, by Atkinson's own admission, Garza and Robertson presented the Government's plea offer to her. Dkt. No. 1 at 28; Dkt. Nos. 15, 16. Atkinson rejected the plea offer and decided to proceed to trial. Id. This claim, therefore, is supported only by conclusory allegations and does not warrant relief. United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005) (“Mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue”). Accordingly, this claim lacks merit and should be dismissed.
Atkinson confirms there was a plea offer by arguing that “the government's plea offer was never properly pursued and consummated.” Dkt. No. 1 at 28.
2. Atkinson's Claim that Garza and Robertson Failed to Advise Her of the Consequences of Going to Trial Versus Pleading Guilty
In her second claim, Atkinson argues that counsel was ineffective for failing to advise her of the consequences of pleading guilty versus proceeding to trial. Dkt. No. 1 at 14. She further claims she received a sentence “approximately four times longer than that initially offered by the government.” Id. at 28. Atkinson's allegations are conclusory and inappropriately based on hindsight. Atkinson further fails to demonstrate how Garza and Robertson's conduct was deficient. Critically, Atkinson's conclusory allegations are insufficient to overcome the presumption that Garza and Robertson's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-91. Accordingly, this claim lacks merit and should be dismissed.
3. Atkinson's Claim that Garza and Robertson Failed to Investigate the Case, and Investigate, Interview and Call Witnesses
In her third claim, Atkinson argues counsel failed to properly investigate her case as well as interview and call witnesses. Dkt. No. 1 at 30. As discussed below, Atkinson has not met her burden to show that Garza and Robertson's acts or omissions constitute ineffective assistance. Accordingly, this claim lacks merit and should be dismissed.
a. Atkinson's Claim that Garza and Robertson Failed to Properly Investigate Essential Evidence
Atkinson alleges that Garza and Robertson failed to investigate by not securing essential documents that were listed as Government's evidence but never produced. Dkt. No. 1 at 30. Atkinson also asserts that counsel should have moved to suppress said evidence. Dkt. No. 1 at 31-32.
Atkinson's claims are belied by the record. Garza and Robertson filed several motions to suppress evidence both before and during the trial. CR Dkt. Min. Entry March 13, 2020; CR Dkt. No. 66; CR Dkt. Min. Entry Sept. 10, 2020; CR Dkt. Minute Entry Nov. 2, 2020; CR Dkt. No. 153 at 199. Garza and Robertson also urged the Court to consider that the wiretap through which the Government gleaned certain conversations were ill gotten, and thus, any conversations from that wiretap could not be used as evidence. CR Dkt. No. 153 at 198-99; CR Dkt. No. 154 at. 7-12. Said another way, Garza and Robertson made the exact argument Atkinson now claims they failed to make. Atkinson also fails to identify what other evidence, if any, Garza and Robertson should have presented or investigated. Accordingly, this claim lacks merit and should be dismissed. United States v. Pettiette, 338 Fed. App'x 362, 363 (5th Cir. 2009) (Claims must be stated with specificity; conclusional allegations and generalized assertions will not suffice).
b. Atkinson's Claim that Garza and Robertson Failed to Investigate and Call Witnesses
Atkinson also claims that Garza and Robertson provided ineffective assistance by failing to investigate and call witnesses. Dkt. No. 1 at 30. Atkinson argues that Garza and Robertson never took any steps to obtain expert or rebuttal witnesses to refute the Government's charges. Dkt. No. 1 at 30-33. Atkinson further argues that counsel never met with or called any of the more than 16 witnesses Atkinson provided. Id. Specifically, Atkinson points to Rosie Pena, Jody Young, Judge Lopez, Phillip Cowen, and Laura Perez Reyes as potential witnesses that counsel should have interviewed. Id. at 33.
To show ineffectiveness, a petitioner must name the specific witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense. United States v. Fields, 761 F.3d 443, 461 (5th Cir. 2014) (citing Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)).
Here, Atkinson's claim fails for a variety of reasons. First, Atkinson has not provided any additional detail in support of her claim regarding the expert witnesses, rebuttal witnesses, or the unnamed witnesses. Dkt. No. 1 at 30, 32. As for the proposed witnesses named above, Atkinson fails to state whether they were available to testify, the nature of their testimony, or how the testimony would have been favorable to her defense.
Although Atkinson summarizes the nature of the proposed testimony from Jody Young, Judge Lopez, Philip Cowen, and Laura Perez Reyes, she has not asserted that they were willing and able to testify, that their testimony would have been favorable to her, nor a reasonable probability that it would have affected the outcome of her trial. Dkt. No. 1 at 32-33. Atkinson, therefore, has not met her burden to show that additional witness's testimony would have been relevant or beneficial, or that Garza and Robertson's failure to call them constituted deficient performance. Accordingly, this claim lacks merit and should be dismissed.
4. Atkinson's Claim that Garza and Robertson Failed to Present Evidence at Trial
In her fourth claim, Atkinson alleges Garza and Robertson provided ineffective assistance by failing to present evidence at trial. Dkt. No. 1 at 30-32. As discussed below, Atkinson has not met her burden to show that Garza and Robertson's actions constitute ineffective assistance. Atkinson is, therefore, not entitled to relief on this basis.
a. Atkinson's Claim That Garza and Robertson Failed to Raise a Statute of Limitations Defense
Atkinson contends that Garza and Robertson should have raised a statute of limitations defense regarding the Lopez campaign donations. Dkt. No. 1 at 31-32. Again, Atkinson is mistaken; she was not charged with any substantive count involving Lopez campaign donations. CR Dkt. No. 44. Atkinson's charges were based on an initial bribe payment made to her in exchange for placing a film project proposal on a future BISD Board meeting agenda and a second payment made after unanimous BISD Board approval of the film project. Id. at 4-6. Because Atkinson was not charged or convicted of any crimes involving Lopez campaign donations, no such statute of limitations defense could be raised by Garza and Robertson. Atkinson, then, fails to show how she was prejudiced by Garza and Robertson's conduct. Accordingly, this claim lacks merit and should be dismissed.
b. Atkinson's Claim that Garza and Robertson Failed to Cross Examine Witnesses
Atkinson also alleges that Garza and Robertson failed to cross examine the Government's twelve witnesses at trial using information she provided. Dkt. No. 1 at 3031. However, this claim is belied by the record. Garza and Robertson cross examined each of the Government's witnesses during trial. CR Dkt. No. 149 at 152, 180; CR Dkt. No. 151 at 64, 80, 126, 149, 288; CR Dkt. No. 152 at 4, 54, 190; CR Dkt. No. 197 at 4, 145, 162, 195, 214, 256, 314, 328. Thus, Garza and Robertson did the exact things Atkinson alleges they did not. If Atkinson is claiming additional evidence exists to refute the Government's witnesses, she has not identified what points Garza and Robertson should have made during cross-examination. This claim is merely conclusory and should, therefore, be denied. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (“[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.”).
5. Atkinson's Claim that Garza and Robertson Did Not Properly Advise Her Against Testifying
In her fifth claim, Atkinson alleges that Garza and Robertson did not properly advise her against testifying. Dkt. No. 1 at 32. Atkinson further alleges Garza and Robertson failed to prepare her to testify. Id. By her own admission, Garza and Robertson did prepare Atkinson to testify. Id. At trial, Atkinson presented her side of the story on direct examination and answered the Government's questions on cross examination. CR Dkt. No. 153 at 49-299; CR Dkt. No. 154 at 14-86. Critically, Atkinson does not point to how any specific part of her testimony prejudiced her. Atkinson, then, fails to show how she was prejudiced by Garza and Robertson's alleged ineffective assistance. Accordingly, this claim lacks merit and should be dismissed.
Atkinson confirms Garza and Robertson advised her about testifying, arguing that “she was minimally prepared by defense counsel.” Dkt. No. 1 at 32.
6. Atkinson's Claim that Josh Schaffer Provided Ineffective Assistance at Sentencing
In her sixth claim, Atkinson alleges Attorney Josh Schaffer provided her with ineffective assistance which resulted in a higher sentence. Dkt. No. 1 at 33. As discussed below, Atkinson has not met her burden to show that Josh Schaffer's actions constitute ineffective assistance. Atkinson is, therefore, not entitled to relief on this basis.
a. Atkinson's Claim that Josh Schaffer Failed to Timely Provide the Probation Officer with Information for the Presentence Investigation Report
Atkinson alleges that Josh Schaffer's failure to provide timely information to the probation officer drew negative comments from the Court which prejudiced Atkinson. Dkt. No. 1 at 35. Atkinson also states that due to Josh Schaffer's late submission of her health information, the probation officer could not consider medical hardships, including her anxiety attacks, kidney disease, and tremors. Id. at 36.
Again, Atkinson's claims are belied by the record. A thorough examination of the sentencing hearing transcript shows the Court did not comment negatively about any lack of adherence to Court deadlines. See CR Dkt. No. 200. The Court also stated it reviewed Atkinson's voluminous medical records and related health information prior to the sentencing hearing. Id. at 4, 28. In addition to the paper submissions, during the sentencing hearing, Josh Schaffer addressed the Court regarding Atkinson's mental disorder, prescription medication history, and other relevant medical considerations. Id. at 28-31, 38. Atkinson fails to show how she was prejudiced by her counsel's actions. This claim should, therefore, be dismissed.
b. Atkinson's Claim that Josh Schaffer Failed to Review the Presentence Investigation Report with Atkinson Prior to the Sentencing Hearing
Atkinson also alleges Josh Schaffer failed to review the presentence investigation report (“PSR”) with her before the sentencing hearing. Dkt. No. 1 at 35. Here, the original PSR was filed on April 12, 2021. CR Dkt. No. 167. A revised PSR was filed the day before the sentencing hearing. CR Dkt. No. 178. Josh Schaffer objected to the late filing of the revised PSR prior to the sentencing hearing. CR Dkt. No. 176 at 1-4. At the sentencing hearing, Atkinson explained to the Court that she did not have a chance to review the revised PSR but confirmed that she reviewed the original PSR with her counsel. CR Dkt. No. 200 at 7. In light of the revised PSR's untimely filing, the Court sustained Josh Schaffer's objection to the new information contained in the revised PSR; in effect, did not consider the revised PSR at sentencing. Id. Atkinson, then, was not prejudiced by Josh Schaffer's alleged failure to review the revised PSR with her prior to sentencing. This claim should, therefore, be dismissed.
c. Atkinson's Claim that Josh Schaffer Failed to Raise Objections to the PSR at Sentencing
Atkinson further alleges that Josh Schaffer failed to object to the PSR. Dkt. No. 1 at 33, 35. Atkinson also asserts that Josh Schaffer failed to request the Court impose a sentence of a year and a day, as they previously discussed with her. Id. Again, Atkinson's claims are belied by the record. In addition to raising objections to the PSR at sentencing, Josh Schaffer filed a detailed sentencing memorandum and a motion for a downward variance prior to the sentencing hearing, supported by a psychological report, character reference letters, and medical records. CR Dkt. Nos. 164, 176, 200. During the sentencing hearing, Josh Schaffer “requested a year and a day” and noted that the defense would not “object if the Court wants to impose probation, but under no circumstances should the sentence be any greater than 24 months.” CR Dkt. No. 200 at 36. The Court sustained Josh Schaffer's objection to the Government's request for the imposition of a four-level enhancement. CR Dkt. No. 200 at 5-6. Again, Josh Schaffer made the exact objections and arguments that Atkinson claims they did not. If Atkinson is claiming any additional objections or argument Josh Schaffer failed to make or how she was prejudiced by their alleged failure, she has failed to make the required showing. This claim is conclusory, and therefore should be denied. United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993) (“[M]ere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.”).
VI. Conclusion
Atkinson is not entitled to relief based on any of the claims in her 2255 Motion. Even if all the facts contained in Atkinson's 2255 Motion were demonstrable and true, she would not be entitled to relief. Accordingly, she is not entitled to an evidentiary hearing. See Clark v. Collins, 19 F.3d 959, 964 (5th Cir. 1994) (“The district court need not hold an evidentiary hearing to resolve ineffective assistance claims where the [movant] has failed to allege facts which, if proved, would admit of relief or where the [court's] record suffices for their disposition.”) (internal citations omitted); United States v. Fields, 565 F.3d 290, 298 (5th Cir. 2009) (“If, on the record before us, we can conclude as a matter of law that [the movant] cannot establish one or both of the elements necessary to establish his constitutional claim [for ineffective assistance of counsel], then an evidentiary hearing is not necessary[.]”) (internal citation omitted).
VII. Certificate of Appealability
A certificate of appealability shall not issue unless the petitioner/movant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires a “showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Said another way, where claims have been dismissed on the merits, the movant/petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. at 484. Where claims have been dismissed on procedural grounds, the movant/petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
District courts may deny certificates of appealability sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per curiam). A certificate of appealability should not issue in this case because Atkinson has not made a substantial showing of the denial of a constitutional right.
VIII. Recommendation
It is recommended that the Court: (1) GRANT the Government's Motion for Summary Judgment; (2) DENY the claims presented in Atkinson's 2255 Motion; (4) DIRECT the Clerk of Court to close this case; and (5) DECLINE to issue a certificate of appealability.
IX. Notice to Parties
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).