Peery v. USA

Filing 20

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 16 Report and Recommendation. ORDERED that the motion to vacate, set aside, or correct sentence is DENIED and Movant's case is DISMISSED with prejudice. A certificate of appealability is DENIED. Finally, it is ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Ron Clark on 9/17/2012. (kls, )

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

PATTY PEERY, #16948-078

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:12cv82
CRIMINAL ACTION NO. 4:10cr57(17)

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate Judge
Amos L. Mazzant, who issued a Report and Recommendation concluding that the motion to vacate,
set aside, or correct sentence should be denied and dismissed with prejudice. Movant has filed
objections.
On June 23, 2010, Movant pleaded guilty to conspiracy to commit mail and wire fraud under
18 U.S.C. § 1349. The elements of the charge to which she pleaded guilty under § 1349, including
the elements for 18 U.S.C. §1341 (Mail Fraud and Swindles) and § 1343 (Fraud by Wire, Radio,
or Television), were identified both in writing and in open court. On October 6, 2010, the Court
sentenced her to 41 months of imprisonment. She did not file a direct appeal.
In her § 2255 motion, Movant asserted that she is entitled to relief because her counsel was
ineffective by causing her to plead guilty to a non-existent offense and because her counsel
“threatened Defendant with an increased sentence as punishment for the exercise of her
constitutional right to file an appeal.”
In her objections to the United States Magistrate Judge’s Report, Movant reurges one of the
issues raised and discussed in the Magistrate Judge’s Report. Specifically, she reurges that her
counsel was ineffective by causing her to plead guilty to a non-existent offense. As noted in the
Report and Recommendation, Movant’s plea agreement plainly states that Movant “agrees to enter
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a plea of guilty to Count One of the Indictment which charges a violation of 18 U.S.C. § 1349
(conspiracy to Commit Mail and Wire Fraud).” It further notes that Movant “understands the nature
and elements of the crime to which guilt is admitted.” Movant’s claim that she thought she was
pleading guilty to violating the honest services fraud statute is contradicted by the record.
Movant again reurges that the United States Supreme Court case of Skilling applies to her
case. As the Magistrate Judge explained in his Report, in Skilling v. United States, — U.S. —, 130
S. Ct. 2896, 2907, 177 L. Ed.2d 619 (2010), the Supreme Court held that the “honest services” fraud
statute, 18 U.S.C. § 1346, criminalizes “only bribery and kickback schemes.” While Movant argues
that the Skilling holding renders her guilty plea “invalid as it premises [sic] on a non-existent
offense,” Movant was not charged with honest services fraud concerning bribery and kickbacks
pursuant to § 1346. She was charged with, and pleaded guilty to, conspiracy to commit mail and
wire fraud under 18 U.S.C. § 1349. The Skilling case is not applicable. In sum, Movant failed to
show that she was denied effective assistance of counsel under the well-known standard outlined in
Strickland. She failed to prove that there is a reasonable probability that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different.

Strickland v.

Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 864 (1984). Any argument trial
counsel would have advanced in this vein during the plea process or on direct appeal would have
been frivolous. Counsel cannot be held to be ineffective for failing to argue frivolous claims. Koch
v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990).
Movant fails to make further objections to the Report. Accordingly, she is barred, except
upon grounds of plain error, from appellate review of those proposed factual findings and legal
conclusions, which have been accepted and adopted by the district court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Having
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made a de novo review of the objections raised by Movant to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct, and adopts the same as the
findings and conclusions of the Court. It is accordingly
ORDERED that the motion to vacate, set aside, or correct sentence is DENIED and
Movant’s case is DISMISSED with prejudice. A certificate of appealability is DENIED. Finally,
it is
ORDERED that all motions not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 17 day of September, 2012.

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Ron Clark, United States District Judge

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