Court filing
Final Report and Recommendation on Motion to Vacate Under 28 U.S.C. § 2255 — USA v. Hopkins (N.D. Ga.)
Filed May 5, 2025 in USA v. Hopkins; one of 62 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2025-05-05 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00284-SEG-CMS · Doc. 67 · 2025-05-05 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HARRESCIA HOPKINS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
MOTION TO VACATE
28 U.S.C. § 2255
CRIMINAL ACTION NO.
1:22-cr-284-SEG-CMS
CIVIL ACTION NO.
1:23-cv-3612-SEG-CMS
FINAL REPORT AND RECOMMENDATION
Movant Harrescia Hopkins has filed a pro se Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion
to Vacate”). [Docs. 44, 46]. In the Motion1 to Vacate, Hopkins argues that (1) her
attorney failed to present certain mitigating evidence at sentencing, (2) she was
unable to appeal because her attorney “ignored [her] for two weeks after
sentencing,” and (3) she was coerced into pleading guilty. [Doc. 46 at 4–5]. The
Government filed a response. [Doc. 60]. Hopkins did not file a reply.
1 Hopkins has filed an Amended Motion to Vacate [Doc. 46], which
supersedes the original Motion [Doc. 44] and is now the operative pleading. See
Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213, 1229 (11th Cir.
2018) (“An amended pleading supersedes the former pleading; the original pleading
is abandoned by the amendment, and is no longer a part of the pleader’s averments
against [her] adversary.”) (internal quotation marks and alterations omitted). For
ease of reference, I will refer to the Amended Motion simply as the Motion.
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For the reasons stated below, I recommend that the Motion to Vacate
[Doc. 46] be DENIED.
I.
BACKGROUND
In 2021, while Hopkins was employed by the Federal Bureau of Prisons
(“BOP”) as a corrections officer at the United States Penitentiary–Atlanta, Hopkins
was investigated based on allegations that she was accepting bribes to smuggle
contraband into the facility. [Doc. 60 at 2]. In the course of the investigation the
Government discovered that in 2020 and 2021, Hopkins applied for and received
two Paycheck Protection Program (“PPP”) loans, each totaling $19,100. [Id.; Doc.
19-1 at 5–7]. Hopkins indicated that the loans would be used for payroll or other
business expenses for Hopkins Towing and Storage, a business that did not exist.
[Id.]. Hopkins spent the money from the loans on personal expenses including a
Caribbean cruise and other travel, the purchase of a new Chevrolet Blazer,
landscaping for her house, restaurant meals, and retail goods. [Id. at 7]. Hopkins
also transferred some of the money from the loans to her relatives. [Id.].
On August 9, 2022, Hopkins was charged with two counts of wire fraud in
violation of 18 U.S.C. § 1343. [Doc. 1]. On December 20, 2022, Hopkins entered
a negotiated plea of guilty to both counts. [Docs. 19, 19-1]. During the plea
colloquy, Hopkins attested that no one had asked her to lie during the plea hearing,
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and confirmed that her guilty plea was made voluntarily and of her own free will.
[Doc. 25 at 7, 31]. In an April 10, 2023 proceeding before the United States Merit
Systems Protection Board in which she contested her termination from the BOP,
Hopkins alleged that her guilty plea had been coerced by the United States Attorney
who was prosecuting the case. [Doc. 31 at 5–6]. When that allegation came to light,
this Court held a status conference on May 25, 2023, and did an additional colloquy
on the record; Hopkins again confirmed that her guilty plea had not been coerced
and was freely and voluntarily made, and attested that she did not wish to withdraw
her guilty plea. [Id. at 8–10].
On June 8, 2023, Hopkins was sentenced to five months of imprisonment and
two years of supervised release. [Docs. 34, 35]. The Court granted a two-level
downward adjustment for acceptance of responsibility. [Doc. 34; Doc. 66-1 at 24–
28]. Hopkins filed a Motion to Vacate on August 14, 2023, and an Amended Motion
on August 31, 2023. [Docs. 44, 46].
II.
LEGAL STANDARD
A motion to vacate, set aside, or correct sentence may be made “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
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subject to collateral attack . . . .” 28 U.S.C. § 2255(a). “[C]ollateral review is not a
substitute for a direct appeal . . . .” Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004) (per curiam). Section 2255 relief “is reserved for transgressions of
constitutional rights and for that narrow compass of other injury that could not have
been raised in direct appeal and would, if condoned, result in a complete miscarriage
of justice.” Id. (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir.
1988) (per curiam)) (internal quotation marks omitted). A § 2255 movant “has the
burden of sustaining [her] contentions by a preponderance of the evidence.” Tarver
v. United States, 344 F. App’x 581, 582 (11th Cir. 2009) (per curiam) (quoting
Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)).
In her Motion, Hopkins appears to raise three claims for relief: that her
attorney was ineffective for failing to raise various mitigation arguments at
sentencing, that her attorney prevented her from appealing her sentence, and that her
guilty plea was coerced. [Doc. 46 at 4–5].
III.
DISCUSSION
A.
Ineffective Assistance of Counsel
Hopkins first argues that her attorney was ineffective. I will first set forth the
legal standard for ineffective assistance of counsel claims and will then discuss the
claims in turn.
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To demonstrate ineffective assistance of counsel, a convicted defendant must
show that (1) “counsel’s performance was deficient,” and (2) “the deficient
performance prejudiced the defense.” Strickland v. Wash., 466 U.S. 668, 687
(1984). As to the first prong of Strickland, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (internal quotation marks omitted). That presumption is “even
stronger” if a court is “examining the performance of an experienced trial counsel.”
Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000).
As to the second prong, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A court may
consider either prong first and need not address the other “if the defendant makes an
insufficient showing on one.” Id. at 697.
The defendant, not the Government, “continually bears the burden of
persuasion on the constitutional issue of competence and further, (adding the
prejudice element) on the issue of ineffective assistance of counsel.” Chandler,
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218 F.3d at 1315 n.15. “Never does the government acquire the burden to show
competence, even when some evidence to the contrary might be offered by the
[defendant].” Id.
1. Mitigation Arguments
Hopkins argues that her attorney “failed to represent [her]” by failing to make
certain mitigation arguments at sentencing. [Doc. 46 at 4]. Hopkins claims that:
When the government mentioned problems at [her] job, [her attorney]
didn’t defend the fact that the loans were forgiven. [Hopkins] did not
complete the application herself. [She] was manipulated. [She has]
been convicted based on actions of someone else. The government lied
or assume[d] she bought cars and went on vacation with the money, no
one ([her] attorney) didn’t correct them. When [Hopkins] decided to
sue the BOP is when [she] was indicted. [She] endured sexual, verbal
harassment. Left in a hostile work environment.
[Id.].
Each of these arguments is without merit. First, counsel was not ineffective
for failing to “defend the fact that the loans were forgiven[.]” [Id.]. As the
Government points out, “the fact that the loans were forgiven by the [Small Business
Administration] was inconsequential to [Hopkins’s] sentencing; loan forgiveness
was not a way of discharging criminal liability for loans that had been obtained
through fraud.” [Doc. 60 at 12]. Additionally, to obtain forgiveness of the loans
Hopkins would have been required to submit documentation verifying information
including the number of full-time employees on payroll, pay rates, and other
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business expenditures. 15 U.S.C. § 636m(e)–(f). When submitting the applications
for the loans and for loan forgiveness, Hopkins “knew that Hopkins Towing and
Storage was not a real or functioning business, and knew that the information on the
applications . . . was not true.” [Doc. 25 at 22–24]. Accordingly, counsel did not
perform deficiently by failing to raise that the loans were forgiven.
Next, counsel was not ineffective for failing to argue that Hopkins “did not
complete the application [her]self, [she] was manipulated,” and she was “convicted
based on the actions of someone else[.]” [Doc. 46 at 4]. In the written factual basis
of the plea agreement that Hopkins signed, she agreed that she herself electronically
signed and submitted the PPP loan applications and submitted false IRS forms to
support the applications. [Doc. 19-1 at 5–6]. Hopkins also agreed at the sentencing
hearing that she signed and submitted the applications and submitted false IRS
forms. [Doc. 25 at 21–24].
In addition to her agreement that she was the one to submit the loan
applications, at sentencing the Court granted Hopkins a two-point deduction in the
sentencing calculation for acceptance of responsibility. [Doc. 66-1 at 24, 27]
(“There is no allegation here that Ms. Hopkins told the Merits Board or anyone else
that she didn’t take out fraudulent loans or that she otherwise did not actually commit
the crime of which she was charged.”). However, if her attorney had argued that
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Hopkins did not complete the application herself and was “convicted based on the
actions of someone else,” she may not have received the two-point deduction for
acceptance of responsibility. See, e.g., Timmons v. United States, No. CR 12-00240-
WS-N-5, 2016 WL 1457237, at *12 (S.D. Ala. Mar. 18, 2016), report and
recommendation adopted, 2016 WL 1448833 (S.D. Ala. Apr. 12, 2016) (“The
attempts Deen and Timmons did make at sentencing to downplay Timmons’s
involvement in the RICO conspiracy were rejected by the Court, and the Court
expressly noted that those attempts nearly did cause Timmons to lose his acceptance
of responsibility adjustment.”). Accordingly, counsel did not perform deficiently by
not attempting to deflect Hopkins’s responsibility for her crimes.
Third, Hopkins argues that “[t]he government lied or assume[d she] bought
cars and went on vacation with the money, no one ([her] attorney) didn’t correct
them.” [Doc. 46 at 4]. In the written factual basis of the plea agreement, signed by
Hopkins, she agreed that she “spent the PPP money on personal expenses including
a Caribbean cruise and other travel, a down payment and other expenses related to
purchasing a new Chevrolet Blazer, landscaping for her house, restaurant meals, and
retail goods.” [Doc. 19-1 at 7]. Hopkins’s claim here is also belied by charges in
her personal checking account and what she told agents in an interview. [Doc. 60 at
13]. Hopkins does not offer an alternative explanation for what the loan funds were
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used for, and the funds clearly were not used for their intended purpose as Hopkins
Towing and Storage was not a real or functioning business. Accordingly, counsel
did not perform deficiently by failing to object to the claim that Hopkins used the
funds for the above-mentioned purposes.
And finally, Hopkins claims that she “endured sexual, verbal harassment” and
was “[l]eft in a hostile work environment.” [Doc. 46 at 4]. Hopkins’s argument here
is not entirely clear, but she appears to be alleging that her attorney was ineffective
for failing to argue that the hostile work environment she suffered at the BOP should
have been considered as a mitigating factor. Hopkins fails to explain how
experiencing an alleged hostile work environment could be a mitigating factor for
her commission of loan fraud outside of work. Additionally, during her sentencing,
the Court stated that it had “read the summary documented records to an alleged
hostile work environment,” but did not “have the kind of information that [it] would
need to be comfortable in relying on that for purposes of assessing acceptance of
responsibility here.” [Doc. 66-1 at 28]. Accordingly, counsel did not perform
deficiently by failing to argue at sentencing that Hopkins had experienced a hostile
work environment at the BOP.
“[C]ounsel is not ineffective in failing to make a meritless objection or raise
a meritless argument.” Broderick v. United States, No. 8:14-CR-358-T-27SPF, 2020
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WL 1511854, at *7 (M.D. Fla. Mar. 30, 2020) (citing Freeman v. Atty. Gen., 536
F.3d 1225, 1233 (11th Cir. 2008)). Hopkins’s counsel did not perform deficiently
by failing to raise meritless mitigation arguments at sentencing. Hopkins therefore
cannot establish an ineffective assistance of counsel claim based on these arguments.
2. Failure to Appeal
In explaining why she did not raise the above arguments on appeal, Hopkins
appears to claim that her attorney prevented her from filing an appeal by “ignor[ing
her] for two weeks after sentencing[.]” [Doc. 46 at 4]. Out of an abundance of
caution, I will liberally construe this as its own claim for relief; nevertheless, this
claim also fails.
“[W]hether counsel has performed deficiently by not filing a notice of appeal
is best answered by first asking . . . whether counsel in fact consulted with the
defendant about an appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). If
counsel did consult with the defendant about an appeal, “the question of deficient
performance is easily answered” and counsel’s performance was only deficient if
counsel “fail[ed] to follow the defendant’s express instructions with respect to an
appeal.” Id. Later in her motion, Hopkins alleges that her attorney told her that
filing an appeal “was pointless[.]” [Id. at 6]. This statement shows that Hopkins’s
attorney did consult with her regarding an appeal, and Hopkins does not allege that
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she instructed counsel to file an appeal and counsel did not do so. Hopkins therefore
cannot establish an ineffective assistance of counsel claim based on this argument.
B.
Voluntariness of Guilty Plea
Hopkins claims that she was told she had no choice but to plead guilty because
if she did not, the government would add charges “concerning false allegations made
about [her]” regarding the allegations of bribery at her workplace. [Doc. 46 at 5].
To the extent that Hopkins is claiming that her guilty plea was coerced, this argument
is without merit.
There is a “strong presumption” that statements made during the plea colloquy
are true, and those sworn statements “constitute a formidable barrier in any
subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977);
see also Martin v. United States, 949 F.3d 662, 670 (11th Cir. 2020) (stating that
statements made during plea colloquy “are afforded great weight”). And where, as
here, a movant’s claim of ineffective assistance of counsel is in direct conflict with
her statements under oath, the movant has a strong burden to show that those sworn
statements are false. Patel v. United States, 252 F. App’x 970, 975 (11th Cir. 2007).
During the plea colloquy, Hopkins attested that no one had asked her to lie
during the plea hearing and confirmed that her guilty plea was made voluntarily and
of her own free will. [Doc. 25 at 7, 31]. In addition to her statements made during
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the original plea colloquy, the Court held a status conference for the purpose of
determining whether Hopkins’s plea was voluntary. See [Doc. 31]. The Court
questioned Hopkins at length about the voluntariness of her plea, and Hopkins again
confirmed that her plea was made freely and voluntarily, and that she did not wish
to withdraw her guilty plea. [Id. at 8–10].
Hopkins’s after-the-fact statement to the contrary is not sufficient to
overcome the presumption of the truth of these sworn statements. Hopkins therefore
cannot establish that her guilty plea was the product of coercion, and this claim for
relief fails.
C.
Evidentiary Hearing
A court is not required to hold an evidentiary hearing every time a § 2255
claim is raised. Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989). Instead, a
federal habeas corpus petitioner is entitled to an evidentiary hearing only where the
petitioner alleges facts that, if proven, would entitle the petitioner to relief. Id. A
court also is not required to hold an evidentiary hearing when “the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). Here, the record conclusively shows that
Hopkins is entitled to no relief; a hearing, therefore, is not required. See 28 U.S.C.
§ 2255(b).
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IV.
CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing Section 2255 Proceedings, “[t]he
district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by
28 U.S.C.§ 2253(c)(2).” 28 U.S.C. foll. § 2255, Rule 11(a). Section 2253(c)(2)
states that a certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” A substantial showing
of the denial of a constitutional right “includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the [motion to vacate] 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) (internal quotation marks omitted).
When the district court denies a [motion to vacate] on procedural
grounds without reaching the prisoner’s underlying constitutional claim
. . . a certificate of appealability should issue only when the prisoner
shows both that jurists of reason would find it debatable whether the
[motion] states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.
Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484)
(internal quotation marks omitted).
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I RECOMMEND that a certificate of appealability be denied because the
resolution of the issues presented is not debatable. If the district judge adopts this
recommendation and denies a certificate of appealability, Hopkins is advised that
she “may not appeal the denial but may seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22.” 28 U.S.C. foll. § 2255, Rule 11(a).
V.
CONCLUSION
For the reasons stated above, I RECOMMEND that the Amended Motion to
Vacate [Doc. 46] be DENIED, the original Motion to Vacate [Doc. 44] be DENIED
AS MOOT, that a certificate of appealability be DENIED, and that civil action
number 1:23-cv-3612-SEG-CMS be CLOSED.
SO RECOMMENDED, this 5th day of May, 2025.
Catherine M. Salinas
United States Magistrate Judge
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