Cormier v. United States of America

Filing 14

MEMORANDUM OPINION. Signed by Judge Thad Heartfield on 3/24/14. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
SARAH LYNN CORMIER

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 1:11cv106

MEMORANDUM OPINION
Sarah Lynn Cormier, 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 February 21, 2008, a federal grand jury returned a threecount indictment against movant and five co-defendants. Movant and
her co-defendants were charged with: (a) conspiring to commit
carjacking; (b) carjacking and aiding and abetting cracking and (c)
brandishing a firearm during and in relation to a crime of violence
and aiding and abetting the brandishing of a firearm during and in
relation

to

a

crime

of

violence.

A

four-count

superseding

indictment added a charge of possessing a firearm after having been
convicted of a felony against a co-defendant.
Following a jury trial, movant was convicted of all charges.
She was sentenced to a total of 117 months imprisonment.

The

convictions and sentence were affirmed by the United States Court
of Appeals for the Fifth Circuit.
133 (5th Cir. 2010).

United States v. Rice, 607 F.3d

Grounds for Review
Movant asserts the following grounds for review: (1) she was
denied due process of law because the jury was unable to decide her
case fairly; (2) a detective was improperly permitted to testify
that he did not believe her story regarding her participation; (3)
there was insufficient evidence to support her conviction for
aiding and abetting the brandishing of a firearm during and in
relation to a crime of violence; (4) the trial court gave an
improper

jury

instruction

and

(5)

there

was

prosecutorial

misconduct because the prosecution: (a) made an improper contingent
plea offer; (b) improperly asserted movant’s counsel had a conflict
of interest and (c) improperly attempted to have movant convince a
co-defendant to accept a plea offer.

Movant also asserts she

received ineffective assistance of counsel because counsel: (1)
failed to request a separate trial; (2) failed to make objections
at trial and (3) failed to subpoena phone records and domestic
violence records.
Factual Background
In

its

opinion,

the

Fifth

Circuit

summarized

the

facts

surrounding this case as follows:
One day in December 2007, Cormier and [John] Rice joined
Aldrain Booker, Keisha Guidry, Joshua Hayward, and William
Stanton in search of people to rob. The group first went
to a local bingo hall where Rice and Hayward discussed
robbing a woman who had just won the big prize. They all
piled into Guidry’s car and Rice told Stanton, who was
driving, to follow the woman home. When they arrived there,
Rice retrieved his gun through the armrest and exited the
vehicle. But by the time he reached the house, the garage
door was almost closed, so he returned to the car, and
the group drove away.
2

Later that night, Cormier and Rice came up with a plan to
order pizza to an abandoned house and then steal the
delivery man’s pizza, money, and car. Cormier called the
pizza restaurant but learned that they did not deliver
after 9 p.m.
The group then decided to drive to a grocery store to get
something to eat. When they reached the parking lot, Rice
spotted an older couple, whom the group followed home.
On the way, they discussed wrapping the couple in duct tape
and taking their money and car. At the couple’s house,
Rice and Hayward exited the vehicle and ran toward their
targets. As Rice and Hayward approached, the elderly man
pulled out his phone and threatened to call the police.
Rice and Hayward then retreated to Guidry’s car.
Next, the group drove to a convenience store at a gas
station where one of Booker’s friends, Danial Reynolds,
was working. After four members of the group entered the
store, Cormier asked Reynolds whether they could rob him
and later split the profits. Reynolds seemed to think
she was joking and disregarded the proposal.
Finally, only a few minutes later, Amanda Weeks approached
the gas station in her car, and Rice ordered Stanton to
park across the street so they could observe Weeks. After
Weeks used her debit card to pay for gas, Rice told Stanton
to follow her home so they could steal her money and car.
While the car followed Weeks, Rice once again retrieved
his gun from behind the armrest.
When Weeks arrived at her residence and opened her car
door, she saw a man, later identified as Rice, walk up and
point a gun at her head. He told her to get into the
passenger seat, then shoved her into it. Rice drove Weeks
to a nearby ATM and ordered her to switch seats and withdraw as much money as possible. He also told her not to
do anything stupid and the he had “done this before.”
Weeks withdrew $200 and gave it to Rice.
Rice drove to a nearby credit union and told Weeks that he
was keeping her car to wipe off fingerprints. He ordered
her out of the car, told her to lie on the ground until he
left, and drove away.
Throughout the incident, Stanton, Cormier, Booker, Hayward, and Guidry followed Rice and Weeks in Guidry’s car.
After Rice dropped off Weeks, the rest of the group stopped
in front of him at an underpass. Rice gave Cormier $20,
and Booker got in Weeks’s car with Rice. They proceeded to
take her car to an abandoned house, where the group stole
3

various items from the car and wiped off the fingerprints.
When they returned to Guidry’s trailer, Rice took the gun
inside, and Booker hid it under the sofa cushions.
After reviewing videotape from the gas station, police
officers went to Guidry’s trailer. When they entered, one
officer observed Rice and Hayward pushing down into the
couch cushions. He ordered them to stand up, and the other
officers soon discovered the gun used to rob Weeks the
night before.
Booker, Guidry, and Stanton gave written statements to the
police regarding their involvement in the incident. They
all indicated that Rice held the gun to Weeks’s head and
took her car and money. Cormier stated that she remembered
visiting the gas station with the others but got tired of
waiting and slept through the entire incident.
Analysis
There are four separate grounds upon which a federal prisoner
may move to vacate, set aside, or correct her 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

convicted.

is

presumed

to

stand

fairly

and

finally

United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.

1991) (en banc) (1992).

“Thus, on collateral attack, a defendant
4

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.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Grounds for Review Raised on Direct Appeal
In grounds for review 2 and 5(a), movant asserts a detective
was

improperly

permitted

to

express

his

opinion

as

to

her

truthfulness and that the prosecution made an improper contingent
plea offer. Movant raised these grounds for review on direct
appeal. In rejecting ground for review 2, the Fifth Circuit stated
as follows:
As an initial matter, the record indicates that Baise’s
response was not an attempt to offer his opinion of
Cormier’s truthfulness. Instead, it seems he was merely
explaining why he had advised her to get an attorney.
Cormier did not maintain at trial that she slept through
the carjacking and therefore the prosecutor had no need
to undermine her previous account of the event. Understood in proper context, the challenged comment was not
opinion testimony, and its admission did not mandate a
mistrial.
In rejecting ground for review 5(a), the Fifth Circuit stated:
Cormier claims that the government engaged in prosecutorial misconduct by offering her a plea deal contingent on Rice’s joint plea. Cormier expressed a
willingness to accept the deal, but Rice refused to plead
guilty. The prosecutor declined to offer Cormier the
same terms for an individual plea, and the case went to
trial. Although she made no objection in the district
court, she now claims that the government’s offer of a
joint plea bargain violated due process.

5

It is well established that there is no constitutional
right to plea bargain. It follows that defendants do not
have a right to plea bargain individually. Cormier offers
no reason why the government should be prohibited from
conditioning a plea offer on a joint plea, and she had no
right to accept only her portion of the government’s offer.
Issues

decided

adversely

on

reasserted in a motion to vacate.

direct

appeal

may

not

be

United States v. McCollum, 664

F.2d 56 (5th Cir. 1981); Buckelew v. United States, 575 F.2d 515 (5th
Cir. 1978). “Section 2255 may not be used to secure a second direct
appeal .... [A ground for review] may not be resurrected and urged
anew; it is a thing adjudged and definitively resolved” once
disposed of on direct appeal.

McCollum, 664 F.2d at 59.

As the

Fifth Circuit rejected these grounds for review on direct appeal,
movant may not reassert them in the current proceeding.
Grounds for Review That Could Have Been Raised on Direct
Appeal
Where a movant failed to raise a ground for review on direct
appeal, that issue is procedurally barred from consideration in a
proceeding brought pursuant to Section 2255.

United States v.

Lopez, 248 F.3d 427 (5th Cir. 2001); United States v. Kallestad,
236 F.3d 225, 227 (5th Cir. 2000).

A district court may consider

a defaulted claim only if the movant can demonstrate either (1)
cause for her default and actual prejudice. Bousley v. United
States, 523 U.S. 614, 622 (1998); United States v. Jones, 172 F.3d
381, 384 (5th Cir. 1999).

To satisfy the “cause” standard, a

movant must show that “some objective factor external to the
defense” prevented her from raising the ground for review on direct
apepal. United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
6

“Actual prejudice” exists when the errors alleged by a movant
“worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
States v. Frady, 456 U.S. 152, 171 (1982).

United

The only recognized

exception to this rule is in an “extraordinary case” where “a
constitutional violation has probably resulted in the conviction of
one who is actually innocent ....”

Murray v. Carrier, 477 U.S.

478, 496 (1986).
Grounds for review 1, 3, 4, 5(b) and 5(c) could have been
raised on direct review, but were not.

Movant has not shown cause

for failing to raise them on direct appeal or demonstrated “actual
prejudice.”

Nor has she shown she is actually innocent.

As a

result, these grounds for review are procedurally barred from
consideration in this proceeding.
Remaining Grounds for Review
Movant also identifies three instances where she believes she
received ineffective assistance of counsel
A.

Legal Standard for Ineffective Assistance of Counsel

In order to establish ineffective assistance of counsel, a
movant must establish counsel’s performance was deficient, and that
the deficient performance prejudiced the movant’s defense in ths
matter. Strickland v. Washington, 466 U.S. 668, 689-92 (1984). 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.
overcome

Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995).
the

presumption

that
7

counsel

rendered

To

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.
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 she was prejudiced as a
result of counsel’s deficient performance.

Armstead v. Scott, 37

F.3d 202, 206 (5th Cir. 1994).
B.

Application

1.

Failure to Request Separate Trial

Initially, movant asserts counsel was ineffective for not
requesting that she be tried separately from Mr. Rice. She states
that the fact that the jury found both her and Mr. Rice guilty on
each combined count supports the conclusion that the jury could not
make

an

individualized

determination

with

respect

to

each

defendant.
Federal Rule of Criminal Procedure 14(a) provides that “[i]f
the joinder of offenses or defendants in an indictment ... appears
to prejudice a defendant ... the court may order separate trials of
8

counts, sever the defendants’ trials, or provide any other relief
that justice requires.”

The Supreme Court has held that “a

district court should grant a severance under Rule 14 only if there
is a serious risk that a joint trial would compromise a specific
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.”
States, 506 U.S. 534, 539 (1993).

Zafiro v. United

“There is a preference in the

federal system for joint trials of defendants who are indicted
together.”

Id. at 538. This is especially true in conspiracy

cases. United States v. Valdez, 453 F.3d 252, 261 (5th Cir. 2006).
A defendant requesting severance bears “the difficult burden of
proving that he will suffer the most compelling prejudice from
continued

joinder;

insufficient.”

a

mere

showing

of

some

prejudice

is

United States v. Zicree, 605 F.2d 1381, 1388-89

(1979).
In light of the preference for joint trials, particularly in
conspiracy cases, and as movant has failed to show being tried with
her co-defendant caused her “compelling prejudice,” it is highly
unlikely a motion for separate trials would have been granted if a
motion had been filed. As a result, counsel’s failure to file such
a

motion

did

reasonableness.

not

fall

below

an

objective

standard

of

Moreover, movant’s conclusory statement that the

jury was unable to make an individualized determination as to each
defendant is insufficient to establish there is a reasonable
probability she would have been acquitted if she had been tried
separately.

This ground for review is therefore without merit.
9

2.

Failure to Make Objections

Movant also asserts counsel was ineffective for failing to
make an objection at a certain point in the trial.

She states

counsel failed to object to testimony by the victim that was
inconsistent with a prior statement she made to police. She states
that the victim told police that the hoody worn by Mr. Rice had a
brown body with a gold embroidered animal print.

However, at

trial, the victim stated the hoody was black with silver lettering.
At trial, the victim testified that the man who pointed the
gun at her head was wearing a dark hoody with something on the
front. On cross-examination, Mr. Rice, who acted as his own
attorney, asked her what she meant by a dark hoody and whether she
meant dark brown, black or blue.
have been any one of those colors.

The victim said that it could
Mr. Rice then had the victim

read from her statement to police in which she described the hoody
as being dark-colored, possibly brown.

The statement also said

that the hoody had some sort of design or writing on the chest and
that there was some sort of embroidery on the edge of the hoody
like gold trim.
When

movant

states

counsel

should

have

objected

to

the

victim’s testimony regarding the color of the hoody worn by Mr.
Rice, she appears to actually be complaining about counsel’s
failure to impeach her trial testimony regarding the color of the
hoody with what movant believes is a prior inconsistent statement.
After reviewing the victim’s trial testimony and her statement
to police, the court is of the opinion that it is doubtful that her
10

trial

testimony

regarding

the

description

inconsistent with her prior statement.

of

the

hoody

was

Further, even if it could

be concluded that the descriptions of the hoody were inconsistent,
Mr. Rice asked questions designed to bring this to the jury’s
attention during his cross-examination of the victim. As a result,
there was no need for movant’s counsel to ask the same questions.
Counsel’s representation on this point therefore did not fall below
an

objective

standard

of

reasonableness

and

there

is

not

a

reasonable probability the result of the proceeding would have been
different if counsel had repeated the questions asked by Mr. Rice.
3.

Failure to Subpoena Telephone Records and Domestic
Violence Records

Finally, movant asserts counsel failed to subpoena her phone
records.

She states the records would have demonstrated she did

not make a telephone call the government asserted she had made.
She also stated that domestic violence records from Port Arthur and
Orange County would have established she was acting under duress at
the time of the carjacking.
At trial, Aldrain Booker, a co-defendant, testified that
movant was the one who called the pizza restaurant after the group
found an abandoned house.

During her testimony, movant denied

making the phone call and stated Mr. Rice had “busted” her nose in
Orange.

During cross-examination, movant acknowledged that she

could have asked to get out of the car during the evening and that
nobody threatened her in the car to prevent her from leaving.

In

addition, movant’s mother testified that on one occasion in Orange,

11

Mr. Rice had struck movant in the nose and nearly broken her nose.
Even if it is assumed movant did not make the phone call
described by Mr. Booker, and that her phone records would have
established this, it cannot be concluded movant suffered prejudice
because a subpoena was not issued for the phone records.

In light

of the additional evidence described in the Fifth Circuit’s opinion
regarding movant’s participation in the offenses, it cannot be
concluded there is a reasonable probability movant would have been
acquitted of one or more of the charges against her even if the
testimony regarding her making the phone call described by Mr.
Booker had been thoroughly discredited.
With respect to the domestic violence records, the government
made no attempt to impeach testimony offered by movant that she had
been

struck

by

Mr.

Rice

on

prior

occasions.

Instead,

the

government elicited testimony from movant that on the night in
questioned she was not threatened and could have asked to leave the
vehicle.

As domestic violence

records would have supported

testimony that was not challenged by the government and would have,
at most, implicitly called into question whether movant could have
asked to leave the vehicle during the night of the carjacking,
there is not a reasonable probability the result of the proceeding
would have been different if domestic violence records had been
subpoenaed and contained evidence favorable to movant.
Conclusion
For the reasons set forth above, this motion to vacate, set
aside or correct sentence is without merit. A final judgment shall
12

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 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
13

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 appealabiltiy shall not

issue in this matter.
SIGNED this the 24 day of March, 2014.

____________________________
Thad Heartfield
United States District Judge

14