Opinion
Criminal No. 3:09CR286-HEH
03-27-2014
UNITED STATES OF AMERICA v. ALICIA CASSANDRA GAMBRELL, Petitioner.
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2255 Motion)
Alicia Gambrell, a former federal inmate, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. ("§ 2255 Motion," ECF No. 40-1.) The Government filed its response and provided Gambrell with Roseboro notice. Gambrell failed to respond. The matter is now ripe for disposition.
"The federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed." Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Although Gambrell was released from custody on May 10, 2013 (see ECF No. 44, at 1), she filed the instant motion while still incarcerated for the convictions she challenges.
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
I. PROCEDURAL HISTORY
On January 19, 2010, a grand jury returned an eight-count superseding indictment charging Gambrell with two counts of bank fraud, (Counts One and Two), mail fraud, (Count Three), three counts of access device fraud, (Counts Four through Six), and three counts of aggravated identity theft (Counts Seven through Nine). (First Superceding Indictment 3-9, ECF No. 19.) Counsel for Gambrell negotiated a plea agreement with the Government pursuant to which Gambrell agreed to plead guilty to Count One and Count Seven and the Government dismissed the remaining seven counts. (Plea Agreement ¶¶ 1, 10, ECF No. 23.) On March 4, 2011, Gambrell signed the Plea Agreement, the Court conducted a Rule 11 colloquy, and accepted Gambrell's plea of guilty. On July 27, 2010, the Court sentenced Gambrell to a term of thirty-nine months of imprisonment. (J. 2, ECF No. 34.) Gambrell filed no appeal.
II. GAMBRELL'S CLAIM IS DEFAULTED
In her § 2255 Motion, Gambrell raises only one claim for relief, that pursuant to Shilling v. United States, 130 S. Ct. 2896 (2010) her conviction for bank fraud under 18 U.S.C. § 1344 "did not involve bribes, kickbacks as evidence" thus, her conviction for Count One is invalid. (§ 2255 Mot. 7.) The Government correctly notes that, because Gambrell could have, but failed to raise this claim on direct appeal, she procedurally defaulted her claim. See Bousley v. United States, 523 U.S. 614, 622-23 (1998). Gambrell fails to show cause and prejudice or her actual innocence to excuse her default. Accordingly, Gambrell's claim is defaulted and will be dismissed.
Shilling v. United States, 130 S. Ct. 2896 (2010), and two companion cases considering the same issue, Black v. United States, 130 S. Ct. 2963 (2010) and Weyhrauch v. United States, 561 U.S. 476 (2010), were decided on June 24, 2010, nearly a month before Gambrell's sentencing. Thus, Gambrell could have raised her claim on direct appeal. Moreover, Shilling, Black, and Weyhrauch involved the "honest services fraud" component of the federal ban on mail fraud, found in 18 U.S.C. § 1346. Black, 130 S. Ct. at 2966; see Cotton v. Keffer, No. 4:10-CV-545-Y, 2011 WL 3611489, at *6 (N.D. Tex. Apr. 25, 2011); aff'd No. 11-10918, 2012 WL 1623577, at *2 (5th Cir. May 9, 2012). Shilling held that § 1346 criminalized only fraudulent schemes involving bribery and kickbacks. Skilling, 130 S. Ct. at 2933. Gambrell was not convicted of honest services fraud under § 1346, and Skilling and its companion cases have no relevance or applicability to Gambrell's convictions for bank fraud under 18 U.S.C. § 1344. See Cotton, 2012 WL 1623577, at *1 (5th Cir. May 9, 2012); Cotton, 2011 WL 3611489, at *6 (concluding that Skilling "is neither relevant nor applicable to ... bank fraud convictions" under § 1344); Bey v. United States, No. RWT-11-3238, 2013 WL 715148, at *7 (D. Md. Feb. 25, 2013) (concluding Skilling has no impact on § 1344 convictions).
Gambrell's § 2255 Motion will be denied. The action is dismissed. A certificate of appealability will be denied.
An appeal may not be taken from the final order in a § 2255 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(B). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Gambrell has not satisfied this standard.
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An appropriate Order will accompany this Memorandum Opinion.
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HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE
Dated: March 27, 2014
Richmond, Virginia