REPORT AND RECOMMENDATION (Doc. 99)
JOHN M. CONROY, Magistrate Judge.
Beverly Holland ("Holland"), proceeding pro se, has moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a judgment and sentence imposed in the United States District Court for the District of Vermont on March 23, 2003. (Doc. 99.) Following trial by jury, Holland was convicted of five counts of transportation of a minor with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a); two counts of transportation of another with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2421; and one count of conspiracy, in violation of 18 U.S.C. § 371. (Doc. 70.) Holland was sentenced by United States District Court Judge William K. Sessions III to a term of imprisonment of 235 months, to be followed by a 2-year term of supervised release, together with a total special assessment of $800. ( Id. )
In her current motion, Holland alleges that she received ineffective assistance of counsel at the time of sentencing, and asks that the Court "reduce [her] sentence." (Doc. 99 at 13.) Concluding that the motion is filed beyond the statute of limitations governing § 2255 motions, and that it otherwise lacks substantive merit, I recommend the motion be DENIED.
I. Indictment and Trial
Holland was charged in an eleven-count Superseding Indictment filed on August 29, 2002, arising out of her organization and management of an interstate prostitution ring. Count 1 of the Superseding Indictment charged her with conspiracy to violate the Mann Act, 18 U.S.C. § 2421 et seq., while Counts 2 through 11 charged her with substantive violations of the Mann Act. (Doc. 34.) Prior to trial, the Court ordered that Holland undergo a psychiatric evaluation to determine if she was competent to stand trial, and if she was insane at the time of the charged offenses. (Doc. 17.) Holland was subsequently evaluated by mental health professionals within the Federal Bureau of Prisons ("BOP"). After extensive testing, it was determined that she suffered from a Cognitive Disorder-Not Otherwise Specified,  an Anti-Social Personality Disorder, and a closed head injury. (PSR ¶ 253). While the evaluation process was ongoing, Holland's prior counsel withdrew and Attorney Thomas Zonay was appointed to represent her. Following the submission of the written evaluation, a competency hearing was held and Judge Sessions found Holland to be competent to stand trial. No notice of an insanity defense was given.
Trial commenced on September 5, 2002. Counts 4 and 5 were dismissed by the Court at the close of the government's case. On September 10, 2002, the jury found Holland guilty on Counts 1-3, 6-9, and 11, and not guilty on Count 10. (Doc. 48.) The evidence at trial established that between 2000 and 2001, Holland had engaged in a scheme in which she induced young females from the Burlington, Vermont area to travel to New York City to work in a prostitution ring. Holland enticed the victims, some of whom were as young as fifteen years of age, to participate in her scheme by promising them incentives such as money, drugs, and shopping. She arranged for their transportation from Vermont to the Bronx, where she provided them with marijuana and alcohol, trained them to work as prostitutes, and monitored them while they engaged in prostitution in cars and apartments. At times, Holland lied to the victims' parents about the nature of their daughters' activities and her relationship with them. Holland used the street name "Candy, " referred to the females she recruited as "Candy's Girls, " and used that term on business cards. She informed victims who sought to return to Vermont that they would have to earn their way home by continuing to work as prostitutes.
In preparation for Holland's sentencing, an extensive PSR was prepared by the Probation Office, and the parties submitted sentencing memoranda. At the time of their commission, Holland's offenses were governed by the provisions of section 2G1.1 of the United States Sentencing Commission Guidelines ("USSG"). Pursuant to this section, the PSR calculated offense levels for each of the 12 victims identified in the Bill of Particulars. For the four 15-year-old victims, the PSR recommended an offense level of 29. This computation was obtained by taking the base offense level of 19 and adding four enhancements: a four-level enhancement because the offense involved a commercial sex act and the use of physical force, fraud, or coercion; a two-level enhancement because the offense involved a victim between the ages of 12 and 15; a two-level enhancement for unduly influencing a minor to engage in a commercial sex act; and a two-level enhancement for the use of accomplices. For the other two minor victims and the six adult victims, the PSR recommended offense levels of 27 and 20, respectively. Pursuant to grouping rules found at USSG §3D1.4, the PSR calculated the combined offense level by taking the group with the highest offense level, i.e., 29, and adding five additional levels based on the remaining groups for a total offense level of 34. The PSR noted that Holland had 50 prior convictions for prostitution and solicitation, three drug convictions, and two convictions for disorderly conduct. All but one of these offenses had resulted in a sentence of less than 60 days. Consequently, the PSR assigned Holland six criminal-history points, which placed her in criminal history category III. The applicable guideline range for offense level 34 and criminal history category III was 188 to 235 months. The government's sentencing memorandum accepted the findings of the PSR and the government urged the Court to impose a sentence within the guideline range.
Attorney Zonay raised two objections to the PSR's guideline calculations. (Doc. 68.) He first argued that it was inappropriate to apply the two-level enhancement for undue influence of minors under §2G1.1(b)(4)(B). ( Id. at 5.) Specifically, he argued that because Holland's psychological deficiencies and her intellectual and social abilities were impaired, she was not in a superior position to the minors and was therefore unable to exert undue influence. He next argued that with respect to eight of the victims, the evidence failed to support application of the four-level enhancement for use of force, fraud, or coercion. ( Id. at 7.)
Relying upon USSG §5H1.3, Attorney Zonay also sought a downward departure from the applicable sentencing-guideline range based upon Holland's mental condition and the totality of the circumstances. Utilizing the findings set forth in the BOP's competency evaluation, Zonay argued that Holland had grown up in a broken and abusive home, that she had left home at the age of 12, that she had dropped out of school in the 8th grade, and that she had worked for years as a street prostitute believing it was the only way for her to survive. Zonay further contended that Holland had received a bullet wound to the head, had suffered a severe head injury as a result of an automobile accident, and that she had a borderline IQ, a personality disorder, and other mental deficiencies. These conditions and impairments were outlined in detail in the PSR. Zonay argued that as a result of these issues, Holland believed that she was helping the young women who were the victims of her conduct, and that all of these factors, when viewed in combination, justified a downward departure from the applicable sentencing-guideline range. (Doc. 68 at 8-9.)
Sentencing was held on March 21, 2003. The Court accepted the conclusions of the PSR and rejected each of Holland's guideline challenges. As to her argument that the undue-influence enhancement should not apply, the Court observed that Holland was considerably more sophisticated and more than twenty years older than most of her victims. (Doc. 74.) The Court also denied Holland's motion for a downward departure, concluding that her difficult upbringing and mental deficiencies were not sufficiently strong mitigating factors to warrant a lesser sentence. The Court noted that her purportedly borderline IQ was "totally inconsistent with her street intelligence and her ability to influence other people[.]" ( Id. at 18.) The Court also observed that Holland's diagnosis of an anti-social personality disorder could signal future dangerousness. ( Id. at 19.) The Court stated that it had considered an upward departure because the number of victims and Holland's extensive criminal history were both discounted by the Guidelines. Ultimately, however, it determined that the range of 188 to 235 months was sufficient, and a sentence at the high end of the range, 235 months was imposed. In later proceedings, as noted below, the Court specifically stated that it had given consideration to the impact of Holland's crimes on the vulnerable young victims, the detrimental effect on the community, and Holland's complete denial of responsibility in selecting this sentence. (Doc. 94)
III. Direct Appeal and Remand by the Court of Appeals
Holland appealed her convictions to the Second Circuit, arguing that this Court erred in instructing the jury, excluding certain evidence, and denying her motions for judgments of acquittal. While the appeal was pending, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), which held that the State of Washington's sentencing-guideline system was unconstitutional. Attorney Zonay filed a supplemental brief in the Court of Appeals arguing that Holland's sentencing had violated the principles set forth in Blakely. On August 23, 2004, the Second Circuit issued an opinion rejecting Holland's challenges to her convictions and affirming the judgment of this Court. United States v. Holland, 381 F.3d 80 (2d Cir. 2004). With regard to Holland's challenge to her sentencing, the court observed that "[u]nless and until the Supreme Court rules otherwise, the law in this Circuit remains' that the federal Sentencing Guidelines are constitutional." Id. at 82, n.2 (quoting United States v. Mincey, 380 F.3d 102, 106 ...