The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a petition filed pro se by Sonya Fetterhoff pursuant to 28 U.S.C. § 2255. Petitioner has filed a notice of election stating she wants to proceed on the original petition for writ of habeas corpus she filed on July 6, 2009. Therefore, pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, this court will review the petition to initially determine if Petitioner is entitled to relief.
The petition contains allegations of incompetency of counsel. Petitioner claims that counsel (1) failed to argue that restitution should not be imposed; (2) that counsel should have argued against a term of supervised release; and (3) counsel advised Petitioner that there was little possibility of jail time.
Petitioner pled guilty to a single count of making false statements to agencies of the United States government in violation of 18 U.S.C. § 1001. She was sentenced on May 2, 2008 to a term of imprisonment of 18 months, a period of supervised release of two years, restitution of $44,101.28, and a special assessment of $100.00. On May 7, 2008, a notice of appeal was filed in which Petitioner alleged the sentence was unreasonable. On May 27, 2009, the sentence was affirmed by the court of appeals and the mandate was filed on June 18, 2009. Thereafter, on July 6, 2009, the instant petition was filed.
A. Standard Regarding Competency of Counsel
To prevail on a claim of ineffective assistance of counsel, a Defendant must demonstrate that counsel's performance was objectively deficient and, with a few exceptions, that prejudice resulted. Strickland v. Washington, 466 U.S. 667,668 (1984). A lawyer's representation is considered objectively deficient if it "fell below an objective standard of reasonableness." Id. at 688. To establish prejudice, a defendant 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. With this standard in mind, Petitioner's claims will be addressed.
The Mandatory Restitution Act of April 24, 1996, Title 18 U.S.C. § 3663A, requires this court in all instances to order full restitution for all victims for their losses suffered as a result of a defendant's illegal conduct. Furthermore, in paragraph 12 of the plea agreement, Petitioner acknowledged her obligation to make full restitution.
Section (B)(i)(11) of § 3663 does permit the court to consider the financial resources of a defendant, financial needs, and earning ability when determining restitution. In recognition of this, on January 9, 2009, this court entered an order amending the restitution payments while Petitioner is incarcerated. However, counsel was not incompetent for failing to argue against restitution when the plea agreement called for such payments and in light of the Mandatory Restitution Act.
Under Title 18 U.S.C. § 3583(b)(2), the court can impose a term of supervised release of not more than three years. Pursuant to USSG § 5D1.1, supervised release is required if a sentence of imprisonment exceeding one year is imposed. Petitioner's term of imprisonment is 18 months. Pursuant to USSG § 5D1.2 (a)(2), if supervised release is imposed, it shall be at least two but no more than three years. Petitioner was given a two year term of supervised release.
Petitioner was advised in the plea agreement that she was subject to a term of supervised release (Plea Agree. (hereinafter "Doc. 26") at ¶¶ 1 &2), as well as verbally advised by the court during her guilty plea proceeding. (Trans. of Guilty Plea Proceeding (hereinafter "Doc. 58") at p. 6, line 12 - p. 7, lines 13.) Counsel cannot be deemed incompetent for failing to argue against supervised ...