Hayward v. United States of America
Filing
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MEMORANDUM OPINION. The movant has not shown that any of the issues raised in the motion to vacate are subject to debate among jurists of reason or could be resolved in a different manner. Nor has he shown that the issues raised are worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter. Signed by Judge Thad Heartfield on 6/5/2012. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOSHUA JEROME HAYWARD
§
VS.
§
UNITED STATES OF AMERICA
§
CIVIL ACTION NO. 1:09cv846
MEMORANDUM OPINION
Joshua Jerome Hayward, an inmate confined within the Bureau
of Prisons, proceeding pro se, filed this motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255.
Factual Background
On May 8, 2008, a federal grand jury returned a four-count
First Superseding Indictment against movant and five codefendants.
Pursuant to a written plea agreement, movant pled
guilty to aiding and abetting carjacking, the offense alleged in
the second count of the First Superseding Indictment.
sentenced to 170 months imprisonment.
He was
Movant did not appeal his
conviction or sentence.
Grounds for Review
Movant asserts the government improperly failed to disclose
evidence to him.
He also states he received ineffective
assistance of counsel because counsel: (1) did not adequately
explain the plea agreement to him and (2) did not tell him he
could appeal the court’s decision.
Analysis
There are four separate grounds upon which a federal
prisoner may move to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255: (1) the sentence was imposed in violation
of the Constitution or laws of the United States; (2) the court
was without jurisdiction to impose the sentence; (3) the sentence
exceeds the statutory maximum sentence; and (4) the sentence is
“otherwise subject to collateral attack.”
United States v.
Seyfert, 67 F.3d 544, 546 (5th Cir. 1995).
“Challenging a conviction and sentence with a section 2255
motion is ‘fundamentally different from a direct appeal.’” United
States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (quoting
United States v. Dorbny, 955 F.2d 990, 994 (5th Cir. 1992)).
Following conviction and exhaustion or waiver of any right to
appeal, a criminal defendant is presumed to stand fairly and
finally convicted.
United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076 (1992).
“Thus, on collateral attack, a defendant is limited to alleging
errors of a ‘constitutional or jurisdictional magnitude.”
Samuels, 59 F.3d at 528 (quoting Shaid, 937 F.2d at 232).
Relief
under Section 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if condoned,
would result in a complete miscarriage of justice.
v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
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United States
Failure to Disclose Evidence
Movant states the prosecution failed to disclose favorable
evidence to him.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
held that the suppression of evidence favorable to a defendant
violates the Due Process Clause, regardless of whether the
prosecution acted in good faith.
In order to prevail on a Brady
claim, a movant must prove that the prosecution suppressed
evidence that is materially favorable to the accused, either
because it is exculpatory or impeaching.
Stickler v. Greene, 527
U.S. 263 (1999); Dickson v. Quarterman, 462 F.3d 470, 477 (5th
Cir. 2006).
Evidence is material if there is “a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.”
States v. Bagley, 473 U.S. 667, 682 (1985).
United
“A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.”
Bagley, 473 U.S. at 682.
While movant states he “did not receive [his] full motion of
discovery,” and that his conviction was obtained because of the
unconstitutional failure of the prosecutor to disclose evidence
that was favorable to him, he has not identified the evidence
withheld or attempted to explain why such evidence would have
been material to his case.
As a result, the court is unable to
conclude either that favorable evidence was suppressed or that
there is a reasonable probability the result of the proceeding
would have been different if the favorable evidence was
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disclosed.
This ground for review is therefore without merit.
Ineffective Assistance of Counsel
A.
Legal Standard
In order to establish ineffective assistance of counsel, a
movant must establ;ish counsel’s performance was deficient, and
that the deficient performance prejudiced the movant’s defense in
ths matter.
(1984).
Strickland v. Washington, 466 U.S. 668, 689-92
As a movant must prove both deficient performance on the
part of counsel and prejudice, failure to prove either will be
fatal to his claim.
1995).
Johnson v. Scott, 68 F.3d 106, 109 (5th Cir.
To overcome the presumption that counsel rendered
reasonable, professional assistance, a movant must prove his
attorney’s performance was objectively unreasonable in light of
the facts of the movant’s case, viewed as of the time of the
attorney’s conduct.
Strickland, 466 U.S. at 689-90; Fields, 565
F.3d at 294.
In addition to proving counsel’s performance was deficient,
a movant is required to show prejudice resulting from counsel’s
inadequate performance.
Strickland, 466 U.S. at 691-92.
Movant
must establish “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.
Id. at 694.
Mere allegations of prejudice are insufficient; a movant must
affirmatively prove, by a preponderance of the evidence, that he
was prejudiced as a result of counsel’s deficient performance.
4
Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994), cert.
denied, 514 U.S. 1071 (1995).
B.
Application
1.
Failure to Adequately Explain Plea Agreement
Movant states his counsel failed to explain to him that he
was stating issues to be considered true that were not true when
he signed his plea agreement.
The eleventh paragraph of movant’s plea agreement provides
as follows:
Representation of counsel: Defendant has thoroughly reviewed all legal and factual aspects of this case with
his/her lawyer and is fully satisfied with that lawyer’s
legal representation. Defendant has received satisfactory
explanations from his/her lawyer concerning each paragraph
of this plea agreement, each of hi/her rights affected
thereby, and the alternative to entering a guilty plea.
After conferring with counsel, Defendant concedes that
he/she is guilty and has concluded that it is in his/her
best interest to enter this agreement rather than proceeding to trial.
Movant’s current assertion that he did not understand the
effect of his plea agreement is contradicted by the provision of
the plea agreement quoted above.
Moreover, movant does not state
what provision of the plea agreement he did not understand or
what issues he admitted to be true as a result of signing the
plea agreement that were not true.
As a result, the court is
unable to conclude counsel’s performance with respect to
explaining the effect and contents of the plea agreement to
movant fell below an objective standard of reasonableness.
Nor
can the court conclude the result of the proceeding would have
been different if counsel had explained additional items to
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movant.
2.
Failure to Tell Movant He Could Appeal
Movant states counsel did not inform him of his right to
appeal.
During movant’s sentencing hearing, the court made the
following statements:
The court advises the defendant that he has the right
to appeal his sentence if he believes that his guilty
plea and plea agreement were involuntary, unlawful or
fundamentally defective. He has waived the right to
appeal, though he has reserved the right to appeal
certain areas, but he has waived the right to appeal
the sentence and the judgment and even collateral
appeal. These waivers are enforceable. If you believe
that it’s unenforceable, present that theory to an
appellate court.
With few exceptions, any notice of appeal must be filed
within ten (10) days of judgment being entered in your
case.
If you are unable to pay the cost of an appeal you can
apply for leave to appeal in forma pauperis; and if
you request, the clerk of court will prepare and file
a notice of appeal in your behalf.
An attorney’s failure to file a notice of appeal when
requested by the client is “professionally unreasonable.”
Flores-Ortega, 528 U.S. 470, 477(2000).
Roe v.
When a defendant has not
specifically expressed to counsel his wishes regarding an appeal,
the preliminary inquiry is “whether counsel in fact consulted
with the defendant about an appeal.”
Id. at 478.
Under Flores-
Ortega, “consult” means “advising the defendant about the
advantages and disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant’s wishes.”
Id.
counsel consults with the defendant, then counsel acts in a
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If
“professionally unreasonable manner only by failing to follow the
defendant’s express instructions with respect to an appeal.”
Id.
If counsel has not consulted with the defendant concerning the
filing of an appeal, the inquiry is whether counsel’s failure to
consult with the defendant itself constitutes deficient
performance.
Id.
Counsel has a constitutionally imposed duty to consult with
the defendant about an appeal when there is reason to think
either (1) that a rational defendant would want to appeal (for
example, when there are non-frivolous grounds for appeal) or (2)
that this particular defendant reasonably demonstrated to counsel
that he was interested in appealing.
Id. at 480.
In making this
determination, the court must take into account all the
information counsel knew or should have known.
Id.
Although not
determinative, a highly relevant factor in this inquiry is
whether the conviction follows a trial or guilty plea, both
because a guilty plea reduces the scope of potentially appealable
issues and because such a plea may indicate that the defendant
seeks an end to judicial proceedings.
Id.
Even in cases when
the defendant pleads guilty, the court must consider such factors
as whether the defendant received the sentence bargained for as
part of the plea and whether the plea expressly reserved or
waived some or all appeal rights.
Id.
While the court informed movant as to his right to appeal,.
in paragraph 10 of the plea agreement, movant waived his right to
appeal his conviction and sentence on all grounds.
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He only
retained the right to appeal any punishment in excess of the
statutory maximum and a claim of ineffective assistance of
counsel that affected the validity of his waiver.
In this case,
there do not appear to have been any nonfrivolous appealable
issues regarding the areas where movant retained his appellate
rights.1
Moreover, while the plea agreement did not specify a
sentence, movant was sentenced within the statutory limit and
within the applicable range under the Sentencing Guidelines.
Although movant retained limited appellate rights, there was no
reason for counsel to believe that a rational defendant would
want to appeal under these circumstances.
As a result, any
failure on the part of counsel to consult with movant about an
appeal did not constitute deficient performance and this ground
for review is without merit.
Conclusion
For the reasons set forth above, this motion to vacate, set
aside or correct sentence is without merit.
A final judgment
shall be entered denying the motion to vacate.
In addition, the court is of the opinion movant is not
entitled to a certificate of appealability.
An appeal from a
judgment denying post-conviction collateral relief may not
proceed unless a judge issues a certificate of appealability. See
1
If movant had asked his attorney to file a notice of appeal, he
would not be required to show that he had meritorious issues to appeal.
United States v. Tapp, 491 F.3d 263, 2007 WL 1839277 at *2 (5th Cir. June 28,
2007) (“[T]he rule of Flores-Ortega, applies even where a defendant has waived
his right to direct appeal and collateral review.”). In this case, the waiver
is relevant as to whether there was reason to believe that a rational
defendant would want to appeal.
8
28 U.S.C. § 2253.
The standard for a certificate of
appealability requires the movant to make a substantial showing
of the denial of a federal constitutional right.
See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004).
To make a substantial showing,
the movant need not establish that he would prevail on the
merits.
Rather, he must demonstrate that the issues are subject
to debate among jurists of reasons, that a court could resolve
the issues in a different manner, or that the questions presented
are worth of encouragement to proceed further. See Slack, 529
U.S. at 483-84.
If the motion to vacate was dismissed on
procedural grounds, the movant must show that jurists of reason
would find it debatable: (1) whether the motion to vacate raises
a valid claim of the denial of a constitutional right and (2)
whether the district court was correct in its procedural ruling.
Id. at 484; Elizalde, 362 F.3d at 328.
Any doubt regarding
whether to grant a certificate of appealability should be
resolved in favor of the movant, and the severity of the penalty
may be considered in making this determination.
See Miller v.
Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S.
849 (2000).
In this case, the movant has not shown that any of the
issues raised in the motion to vacate are subject to debate among
jurists of reason or could be resolved in a different manner.
Nor has he shown that the issues raised are worthy of
encouragement to proceed further.
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As a result, a certificate of
appealabiltiy shall not issue in this matter.
SIGNED this the 5 day of June, 2012.
____________________________
Thad Heartfield
United States District Judge
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