United States District Court, W.D. Arkansas, Harrison Division
MAGISTRATE JUDGE'S REPORT AND
MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody filed on November 29, 2018. (ECF No. 261).
The United States filed a response on January 15, 2019. (ECF
No. 269). Defendant has not filed a reply. The matter is
ready for Report and Recommendation.
October 5, 2016, Defendant, Patricia Gayle Lewis-Zubkin
(“Lewis-Zubkin”), was named in four counts of a
22 count, multi-defendant indictment. (ECF No. 1). Count One
charged her with conspiracy to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. §
846. Counts Five, Six and Fifteen charged her with aiding and
abetting the distribution of 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(viii), and 18 U.S.C. § 2.
(Id.). Lewis-Zubkin was arrested on October 27,
2016. (ECF No. 84).
October 31, 2016, she was arraigned before the Hon. Mark E.
Ford, U.S. Magistrate Judge, and she entered a plea of not
guilty to the Indictment. (ECF No. 38). Attorney David L.
Dunagin (“Dunagin”) was appointed to represent
Lewis-Zubkin, and Dunagin requested discovery in open court.
(Id.). Pursuant to her request, a detention hearing
was scheduled for November 2, 2016, but Lewis-Zubkin later
waived the issue of detention and withdrew her request for a
detention hearing. (ECF No. 41). A jury trial was scheduled
for January 4, 2017. (ECF Nos. 38, 42).
appeared before the Hon. P. K. Holmes, III, Chief U.S.
District Judge, for a change of plea hearing on December 29,
2016. (ECF No. 115). Pursuant to a written Plea Agreement,
Lewis-Zubkin pleaded guilty to Count One of the Indictment
charging her with conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF
No. 116). The Court determined Lewis-Zubkin's guilty plea
was voluntary and supported by an independent basis in fact.
(ECF Nos. 115, 268). Her guilty plea was accepted and she was
found guilty as charged. (Id.).
August 25, 2017, an initial Presentence Investigation Report
(“PSR”) was prepared by the United States
Probation Office. (ECF No. 128). The Government made no
objections to the PSR. (ECF No. 137). Lewis-Zubkin made
numerous objections to the PSR, many to request clarification
of factual matters that did not affect the guidelines
calculation, but also to challenge a statement attributed to
her that she was providing a pound of meth every few days to
a co-conspirator, and to a two-level enhancement for use of
violence or a credible threat to use violence. (ECF No. 152).
PSR was submitted to the Court on August 25, 2018, along with
an Addendum responding to Lewis-Zubkin's objections. (ECF
Nos. 194, 194-1). The PSR determined that Lewis-Zubkin was
responsible for 3.54 kilograms of actual meth, resulting in a
base offense level of 36. (ECF No. 194, ¶¶ 141,
144, 149). A two-level upward adjustment was assessed,
pursuant to USSG § 2D1.1(b)(2), because Lewis-Zubkin
used violence, made a credible threat to use violence, or
directed the use of violence. (Id., ¶ 150). A
four-level upward adjustment was made, pursuant to USSG
§ 3B1.1(a), for Lewis-Zubkin's role as an organizer
or leader of a criminal activity that involved five or more
participants. (Id., ¶ 152). After a three-level
reduction for acceptance of responsibility,
Lewis-Zubkin's total offense level was reported to be 39.
(Id., ¶¶ 156-158).
was found to have a criminal history score of 7, placing her
in criminal history category IV. (Id., ¶¶
176-178). The maximum term of imprisonment for the offense of
conviction is 20 years. (Id., ¶ 206). Based
upon a total offense level of 39 and a criminal history
category of IV, the advisory guidelines imprisonment range
was 360 months to life; however, the statutory maximum for
her offense is 20 years (240 months), so the guidelines
imprisonment range was reduced to 240 months. (Id.,
Dunagin filed a Sentencing Memorandum on Lewis-Zubkin's
behalf on October 10, 2017. (ECF No. 203). She challenged the
two-level enhancement for violence; she requested
consideration of 18 U.S.C. § 3553(a) factors, such as
her advanced age and poor health; she argued she was not able
to pay more than a minimal fine; and, she requested a
downward variance or departure to impose a sentence of 144
months imprisonment. (Id.).
was held on October 31, 2017 before the Hon. P. K. Holmes,
III. (ECF No. 212). Lewis-Zubkin again confirmed her
satisfaction with her attorney. (Id.; ECF No. 251,
pp. 2-3). She acknowledged that she had an opportunity to
review the PSR and discuss it with her counsel.
(Id.; ECF No. 251, p. 3). Noting that most of
Lewis-Zubkin's objections to the PSR had been resolved by
revisions to the PSR, the Court entertained argument from
counsel regarding Lewis-Zubkin's remaining objection to
the two-level enhancement for use or threat of violence. (ECF
No. 251, pp. 3-4). Referring to conduct outlined in the PSR,
including numerous conversations in which Lewis-Zubkin stated
her belief that two co-conspirators were working with law
enforcement and should be assaulted, the Court found clear
evidence that Lewis-Zubkin directed the use of violence, and
her objection to the two-level enhancement for violence or
the threat of violence was overruled. (Id., pp.
4-6). The Court commented that “normally we do not see
criminal defendants here at her age and station in life,
” but that “age alone is not to be a determining
factor of the length of someone's sentence.”
(Id., p. 10). Lewis-Zubkin was sentenced to 240
months imprisonment, three years of supervised release, no
fine, and a $100.00 special assessment. (ECF No. 212).
filed a Notice of Appeal on November 2, 2017. (ECF No. 225).
On appeal, she challenged the imposition of the violence
enhancement under U.S.S.G. § 2D1.1(b)(2). (ECF No.
260-1). She also filed a Motion to Reduce Sentence in this
Court on February 5, 2018. (ECF No. 253). That motion was
denied on February 5, 2018 due to lack of jurisdiction. (ECF
No. 254). On November 6, 2018, the Eighth Circuit Court of
Appeals affirmed the judgment of the district court. (ECF No.
260-1). United States v. Lewis-Zubkin, 907 F.3d 1103
(8th Cir. 2018).
November 29, 2018, Lewis-Zubkin filed her Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. (ECF No. 261). She first
claims ineffective assistance of counsel and “my
health.” (Id., p. 4). For supporting facts,
she states that her counsel “did not represent me as
well as he could have, ” “did not argue on the 2
point enhancement I was given, hasn't appealed the
decision yet, ” “he didn't work for me, or
seem to have enough knowledge about my case to do me any
justice in the courts, I hardly ever saw him, ” and
“at my age this sentence is too extreme for a woman
with my health.” (Id.). She next claims that
she “plead guilty under much duress, ” that
“I was threatened with a life sentence if I didn't
plead guilty, ” and that she was “also threatened
that if I tried to make bond that they would seek a life
sentence.” (Id., p. 5).
United States filed its response in opposition to
Lewis-Zubkin's § 2255 motion on January 15, 2019.
(ECF No. 269). Lewis-Zubkin did not file a reply.
prisoner in custody under sentence . . . claiming the right
to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). “If the court finds that the
judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b).
review of Lewis-Zubkin's § 2255 motion, and the
entire record, demonstrates that she is not entitled to
relief, and the summary dismissal of her motion is
Ground One: Ineffective Assistance of Counsel and Sentence
first ground for relief does not meet the standards required
for an ineffective assistance of counsel claim per
Strickland v. Washington, 466 U.S. 668 (1984). The
supporting facts she alleges are vague and conclusory
statements that are contradicted by the record. She also
claims her sentence was too harsh for her age and health, but
that sentencing argument is not cognizable under § 2255.
Further, her age and health were both considered by the Court
at sentencing, but the Court determined that these factors
were countered by her role as a major methamphetamine
supplier and the need to avoid unwarranted sentence
Vague and Conclusory Allegations are Insufficient
and conclusory allegations are insufficient to support a
claim under 28 U.S.C. §2255. Hollis v. United
States, 796 F.2d 1043, 1046 (8th Cir. 1986). Although a
pro se § 2255 petitioner is allowed a more
liberal construction than in other civil proceedings, he must
still allege facts with “sufficient specificity.”
Saunders v. United States, 236 F.3d 950, 953 (8th
Cir. 2001) (citing Cooper v. Schriro, 189 F.3d 781,
785 (8th Cir. 1999)). Conclusory allegations, unsupported by
specific facts, are subject to summary dismissal. Smith
v. United States, 677 F.2d 39, 41 (8th Cir. 1982).
Lewis-Zubkin makes only the following statements as
supportive facts regarding the alleged ineffectiveness of her
• “Did not represent me as well as he could
• “Did not argue on the 2 point enhancement I was
given, hasn't appealed the decision yet.”
• “He didn't work for me, or seem to have
enough knowledge about my case to do me any justice in the
courts, I hardly ever saw him.” (ECF No. 261, p. 4).
sparse allegations do not support a claim for relief and are
contrary to the record.
first and third statements do not make any factual
assertions, but merely express Lewis-Zubkin's subjective
opinion. She does not specify how Dunagin should have
performed differently, not does she ...