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United States v. Lewis-Zubkin

United States District Court, W.D. Arkansas, Harrison Division

March 20, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
PATRICIA GAYLE LEWIS-ZUBKIN DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. Background

         On 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).

         On 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).

         Lewis-Zubkin 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.).

         On 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).

         A final 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).

         Lewis-Zubkin 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., ¶ 207).

         Attorney 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.).

         Sentencing 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).

         Lewis-Zubkin 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).

         On 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).

         The 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.

         II. Discussion

         “A 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).

         A 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 recommended.

         A. Ground One: Ineffective Assistance of Counsel and Sentence Extremity

         Lewis-Zubkin's 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 disparities.

         1. Vague and Conclusory Allegations are Insufficient

         Vague 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).

         Here, Lewis-Zubkin makes only the following statements as supportive facts regarding the alleged ineffectiveness of 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.” (ECF No. 261, p. 4).

         Her sparse allegations do not support a claim for relief and are contrary to the record.

         The 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 ...


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