Collier v. USA

Filing 43

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 39 Report and Recommendation. As a result, a certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 9/5/2017. (bjc, )

UNITED STATES DISTRICT COURT

KERRY LYNN COLLIER,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS

§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 1:12-CV-376

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Kerry Lynn Collier, proceeding pro se, filed this motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255. The court previously referred this matter to the
Honorable Keith F. Giblin, United States Magistrate Judge, for consideration pursuant to
applicable laws and orders of this court. The magistrate judge has submitted a Report and
Recommendation of United States Magistrate Judge recommending the motion to vacate be denied.
The court has received the Report and Recommendation, along with the record, pleadings,
and all available evidence. Movant filed objections. The court must therefore conduct a de novo
review of the objections in relation to the pleadings and the applicable law.
In his motion to vacate, movant asserted counsel was ineffective because he failed to: (a)
object to a breach of the plea agreement and (b) adequately investigate, research or inform movant
about the effect of his plea agreement. After considering the record and movant’s objections, the
court agrees with the magistrate judge’s conclusions. The plea agreement was not breached.
Counsel’s failure to assert that the agreement had been breached therefore did not fall below an
objective standard of reasonableness or cause movant to suffer prejudice. Further, as movant

failed to demonstrate there was a reasonable probability that but for counsel’s alleged errors he
would have gone to trial rather than plead guilty, movant has failed to show he suffered prejudice
as a result of counsel’s alleged failure to adequately investigate, research or inform movant about
the plea agreement.1
In a supplemental motion to vacate, movant, relying on three recent judicial decisions,
contends his prior conviction for possession of a controlled substance was improperly used to
increase his sentence.2 The magistrate judge concluded this ground for review was without merit
because the decisions cited by movant did not apply to his case. The court agrees. As movant was
not sentenced pursuant to the Armed Career Criminal Act, Johnson and Mathis are not relevant.
In addition, the definition of “felony drug offense” relevant to movant’s case is that set forth in
21 U.S.C. § 802(44). As the definition at issue in Hinkle was the definition of “controlled
substance offense” set forth in § 4B1.2 of the United States Sentencing Guidelines, and as that
definition is different than the definition of “felony drug offense” found in Section 802(44), Hinkle
is not relevant to movant’s case.
ORDER
Accordingly, movant’s objections to the Report and Recommendation are OVERRULED.
The findings of fact and conclusions of law of the magistrate judge are correct and the report of
the magistrate judge is ADOPTED. An appropriate final judgment will be entered.

1

In his objections, movant asserts for the first time that the court improperly intervened in the plea
negotiation process and states his plea of guilty was the result of coercion. However, these assertions are
not supported by the transcripts of the prior proceedings in this case and the statements made by movant
during the prior proceedings.

2

Movant relies on the Supreme Court’s decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and
Mathis v. United States, 136 S.Ct. 2243 (2016), as well as the decision of the United States Court of Appeals
for the Fifth Circuit in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016).

2

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 reason, that a court could resolve the issues in a different
manner, or that the questions presented are worthy of encouragement to proceed further. See
Slack, 529 U.S. at 483-84. 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. 2000).
In this case, the movant has not shown that the issue of whether his claims are meritorious
is subject to debate among jurists of reason. The factual and legal questions raised by movant
have been consistently resolved adversely to his position and the questions presented are not
worthy of encouragement to proceed further. As a result, a certificate of appealability shall not
issue in this matter.
.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Plano, Texas, this 5th day of September, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

3