York v USA

Filing 10

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Timothy Lee York. It is recommended that Movant's motion for relief under 28 U.S.C. § 2255 be denied and the case dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 2/11/2014. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

TIMOTHY LEE YORK, #15137-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:11cv130
CRIM. ACTION NO. 4:07cr181(1)

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Timothy Lee York, a prisoner confined at FCI Seagoville in Seagoville, Texas, filed
a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was
referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law,
and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636 and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate
Judge.
Background
On October 13, 2008, a federal jury convicted Movant of (1) arson, (2) use of carrying a
destructive device during, and in relation to, a crime of violence, and (3) possession of a firearm not
registered in the National Firearms Registration and Transfer Record, in violation of 18 U.S.C.
§§ 844(f)(1), 924 ( c)(1)(B), and 26 U.S.C. § 5861(d), respectively. On February 22, 2009, the
Court sentenced him to imprisonment for 497 months. Movant filed a notice of appeal. The Fifth

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Circuit Court of Appeals affirmed his conviction and sentence on March 9, 2010. United States v.
York, 600 F.3d 347 (5th Cir. 2010). The United States Supreme Court denied his a petition for writ
of certiorari on October 8, 2010.
Movant filed a prior motion pursuant to § 2255; however, his petition was pending with the
United States Supreme Court at the time. Accordingly, that motion was dismissed without prejudice.
After the United States Supreme Court denied his petition for writ of certiorari, Movant filed the
present § 2255 motion on March 15, 2011. The Government filed a Response, asserting that
Movant’s motion is without merit. Movant did not file a Reply.
Facts of the Case
The facts of the case were outlined by the Fifth Circuit Court of Appeals:
As Jeremy Carroll and his father-in-law, Walter Vickers, drove home from church
on the evening of February 21, 2006, they saw a fire at the Cooke County Courthouse
in Gainesville, Texas. It was two to three feet high burning at a courthouse window.
At the time, the courthouse was being renovated, so the window where the fire
burned had been boarded up with plywood. They stopped their car, called 911, and
approached the courthouse. When Carroll saw a broken bottle at the base of the fire,
he kicked it away. He testified that after kicking away the bottle, the flames died
down somewhat, but continued to burn around the bottle. Vickers testified that he
saw liquid inside the bottle. When firefighters arrived, they attempted to put out the
fire. The captain of the fire department testified that a Molotov cocktail caused the
fire. A chemist for the state conducted a gas chromatography test [that] revealed
gasoline residue in the glass bottle discovered at the courthouse. The firefighters
discovered a checkbook at the scene. The Fire Marshall testified that the checkbook
was somewhat intact after it had been rolled up and used as a wick for the Molotov
cocktail.
The checkbook had printed on or in it York’s name and address in Irving, Texas.
Investigators went to the address, but found that York’s parents lived there. York’s
mother informed investigators that York’s father had taken him to Gainesville for a
forfeiture hearing. Investigators learned that York stayed at a Ramada Inn two blocks
away from the courthouse while he was in Gainesville. Using information from his
parents, and further investigation into his activities in Gainesville, investigators
discovered that York had moved into a girlfriend’s house after staying at the Ramada
Inn. The girlfriend gave investigators consent to search her home. They found a
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duffel bag that belonged to York. It contained an order signed by Texas district judge
Janelle Haverkamp for a scheduling conference in a forfeiture suit of York’s
property. Judge Haverkamp presided over this suit and had chambers in the Cooke
County Courthouse. The bag also had in it a document with Judge Haverkamp’s
home phone number and an incorrect home address for her. Investigators also found
in the bag high resolution maps of the home that York apparently believed to be
Judge Haverkamp’s, a photo of the judge, and notes of research into the security of
the courthouse.
York’s then-girlfriend, Brenda Finch, also told investigators that York had borrowed
her car and driven to Oklahoma, where he was arrested on criminal charges. The Fire
Marshal and another agent traveled to Oklahoma to interview York who was in
custody there. During the interview, York admitted that he was very angry about a
prior forfeiture proceeding against him. Incident to an arrest on July16, 2005,
forfeiture proceedings had been brought by the State of Texas against York’s vehicle
and about $865 cash that they found in that vehicle. York admitted that, out of anger,
he purchased gasoline, bought a bottle of Jack Daniels Liquor, and created the
Molotov cocktail by pouring the gasoline in the bottle and using his checkbook as a
wick. York also admitted to lighting the checkbook and throwing this Molotov
cocktail against the boarded window at the courthouse. When the investigators
questioned York about the information he had about Judge Haverkamp and the
courthouse, York became visibly agitated and refused to answer questions.
At trial, York recanted his confession, stating that he only admitted to using the
Molotov cocktail because he wanted to get out of Oklahoma state jail. The
Government corroborated York’s confession with the testimony from York’s coworkers and Finch who heard the defendant threaten to blow up the courthouse. In
response to the Government’s evidence, York called multiple witnesses, including
his father and himself. After the Government’s rebuttal evidence, instructions and
arguments from both sides, the jury found York guilty on all three counts.

York, 600 F.3d at 351-52.
Federal Habeas Corpus Relief
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
§ 2255 proceeding may not bring a broad based attack challenging the legality of the conviction. The
range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be drawn

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between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other.”
United States v. Pierce, 959 F.2d 1297, 1300-1301 (5th Cir. 1992) (citations omitted). A collateral
attack is limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v.
Shaid, 937 F.2d 228, 232 (5th Cir. 1991).
Discussion
Movant asserts that he is entitled to relief based on of ineffective assistance of counsel. In
order to succeed on a claim of ineffective assistance of counsel, a movant must show that “counsel’s
representation fell below an objective standard of reasonableness,” with reasonableness judged under
professional norms prevailing at the time counsel rendered assistance. Strickland v. Washington, 466
U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L. Ed.2d 864 (1984). The standard requires the reviewing
court to give great deference to counsel’s performance, strongly presuming counsel exercised
reasonable professional judgment. Id. at 690.

The right to counsel does not require errorless

counsel; instead, a criminal defendant is entitled to reasonably effective assistance. Boyd v. Estelle,
661 F.2d 388, 389 (5th Cir. 1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982);
Murray v. Maggio, 736 F.2d 279 (5th Cir. 1984). Secondly, the movant “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. Movant must “affirmatively prove,” not
just allege, prejudice. Id. at 693. If he fails to prove the prejudice component, the court need not
address the question of counsel's performance. Id. at 697.
Movant asserts that his counsel was ineffective because “had his trial attorney investigated
further, he would have discovered that [Movant] was mentally incompetent to stand trial.” A

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defendant who alleges a failure to investigate must allege with specificity what the investigation
would have revealed and how it would have altered the outcome of the trial. Gray v. Lucas, 677
F.2d 1086, 1093 (5th Cir. 1982). However, Movant points to no evidence in the record to support
his allegation nor does he allege with specificity what further investigation or research would have
revealed and how it would have altered the outcome of his case. Id. Conclusory claims are
insufficient to entitle a habeas corpus petitioner to relief. United States v. Woods, 870 F.2d 285, 288
(5th Cir. 1989); Schlang v. Heard, 691 F.2d 796, 7 99 (5th Cir. 1982).
Movant’s trial counsel, Robert Arrambide, filed an affidavit in response to Movant’s
allegations. Counsel states that he met with Movant several times and discussed Movant’s personal
history, medical history, psychological history, and his defense. Movant told his counsel about
problems with his father, various hospitalizations due to drug abuse and a family history of
schizophrenia. Movant told counsel that, after Cooke County seized his vehicle and cash, he planned
on making a “statement” to the State officials to show that Cooke County officials were crooks and
thieves. He explained his initial plan was to spray-paint the Cooke County Courthouse with a
message. When he was unable to find spray paint, he decided to set a fire near the steps of the
courthouse.
Counsel stated that, based on Movant’s voluntary commitment at the Texoma Medical
Center’s Behavior Health Center, he spoke to Movant about using his mental health as a possible
defense to his charged conduct. After suggesting an evaluation for insanity at the time, especially
considering his admitted heavy drug and alcohol use in the days preceding the fire, Movant
“steadfastly refused” to consider an evaluation or a plea. Based on Movant’s ability to factually
recount all the details of the offense and the time period immediately preceding and immediately

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following the fire, counsel abandoned the insanity defense idea.
Counsel stated that Movant was “rational, lucid, articulate, and highly intelligent” during all
consultations. He did not present any symptoms that caused counsel or his investigator to believe
that Movant was delusional or psychotic in any way. Although he would occasionally get angry, he
was very logical and concise in his thought processes and arguments. Movant was offered a plea
agreement of seventeen years’ imprisonment if he would plead guilty to using or carrying a
destructive device during and in relation to a crime of violence, but he refused to accept the offer.
He said that it seemed excessive considering the “paltry” amount of damage to the courthouse.
Movant offered to plead guilty to arson, but no such plea agreement was reached. Counsel
concluded that Movant rationally consulted with him at all times, assisted with the facts, and seemed
to have a rational understanding of the trial process including its possible outcome. Movant “also
demonstrated his understanding of the process and trial proceedings by writing many pages of notes
during the trial.” Counsel noted that these notes written by Movant were factually based, logical,
and insightful.
Movant claims that, based on the testimony at trial and sentencing concerning his history of
mental illness and substance abuse and the subsequent ruling in the Northern District that he was
incompetent to stand trial, “it cannot be the right answer to have tried him in connection with the
three-count indictment, given what everyone can see as [Movant’s] lack of incompetence, and likely
incompetence in October 2008.” Due process prohibits the conviction of an accused who lacks
mental competence to stand trial. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct 836, 838, 15 L.
Ed.2d 815 (1966). An accused must have both “sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding,” and “a rational as well as factual understanding

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of the proceedings against him.” Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 904, 43 L.
Ed.2d 103 (1975). To obtain a habeas corpus hearing on a substantive claim that the right not to be
tried while incompetent had been violated, the accused must offer clear and convincing evidence to
raise a threshold of doubt about his competence. Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.
1980). The accused must present evidence from before the trial raising a bona fide doubt about his
competence. Holmes v. King, 709 F.2d 965, 967 (5th Cir. 1983).
In this case, Movant’s counsel noted that when he suggested that mental competence might
be a possible defense, Movant “steadfastly refused” to consider an evaluation or a plea. Counsel
noted that, based on Movant’s ability to factually recount all the details of the offense and the time
period immediately preceding and immediately following the fire, counsel abandoned the insanity
defense idea. Counsel stated that Movant was “rational, lucid, articulate, and highly intelligent”
during all consultations, presenting no symptoms that caused counsel or his investigator to believe
that Movant was delusional or psychotic in any way. Counsel noted that, although Movant would
occasionally get angry, he was very logical and concise in his thought processes and arguments.
Movant has not shown that counsel was ineffective for not pursuing the mental incompetency
defense because he has not shown that he was unable to consult with his counsel with a reasonable
degree of rational understanding. Drope, 420 U.S. at 172, 95 S. Ct. at 904. He also has not shown
that he did not have a “rational as well as factual understanding of the proceedings against him.” Id.
Movant has also failed to show that there is a reasonable probability that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 694.
Finally, to the extent that Movant may be also claiming that the trial court erred by not

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conducting a competency hearing, Movant failed to present evidence from before the trial raising a
bona fide doubt about his competence. Holmes, 709 F.2d at 967. He failed to offer clear and
convincing evidence to raise a threshold of doubt about his competence. Id. As in the present case,
where a defendant understands the trial proceedings and was able to coherently narrate what had
happened in his life as a whole, as well as immediately before trial, the defendant was not
incompetent to stand trial in spite of his lifelong history of severe mental deficiency and bizarre,
volatile, and irrational behavior. McCune v. Estelle, 534 F.2d 611, 612 (5th Cir. 1976). Mere
retrospective assertion of trial incompetency, standing alone, is insufficient to require an evidentiary
hearing. Id. This issue is without merit.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
that this court, nonetheless, address whether Movant would be entitled to a certificate of
appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
sponte rule on a certificate of appealability because “the district court that denies a petitioner relief
is in the best position to determine whether the petitioner has made a substantial showing of a denial
of a constitutional right on the issues before the court. Further briefing and argument on the very
issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack

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v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition 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.” Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the court find that Movant is not entitled to a
certificate of appealability as to the claims raised.
Recommendation
It is recommended that Movant’s motion for relief under 28 U.S.C. § 2255 be denied and the
case dismissed with prejudice. It is further recommended that a certificate of appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from

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de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 11th day of February, 2014.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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