Ellis v. USA

Filing 17

REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Marcus Deangelo Ellis. It is recommended that Ellis' motion to vacate, set aside or correct his sentence pursuant to 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 2/11/2015. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MARCUS DEANGELO ELLIS, #15080-035

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:14cv180
CRIM. NO. 4:10CR00189-001

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Marcus Deangelo Ellis, an inmate confined at F.C.I. Memphis, brings this motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was referred for
findings of fact, conclusions of law and recommendations for the disposition of the motion.
Background
On November 20, 2012, after a plea of guilty and pursuant to a written plea agreement, Ellis
was sentenced to 262 months of imprisonment for the offense of conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846. The Fifth Circuit dismissed his appeal for want of
prosecution. United States v. Ellis, No. 12-41347 (5th Cir. Feb. 1, 2013).
The present motion was filed on March 27, 2014. On August 4, 2014, pursuant to an order of
the Court, Ellis filed his motion on the requisite § 2255 form (docket entry #5). He argued that he is
entitled to relief because his attorney was ineffective in the following respects:
1.

Counsel was ineffective for failing to challenge venue;

2.

Counsel was ineffective for stipulating that Ellis was responsible for at least five
kilograms but less than fifteen kilograms of cocaine;

3.

Counsel was ineffective for attempting to obtain a sentence modification based on a
polygraph test; and

4.

Counsel was ineffective for failing to enter into a meaningful plea agreement with the
Government.
1

The Government filed a response (docket entry #13) on November 21, 2014. Ellis filed a motion to
strike the response as time-barred (docket entry #14). On December 17, 2014, the Court granted the
Government’s motion for an extension of time to file a response.
Discussion and Analysis
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). The 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
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, 1300-01 (5th Cir. 1992). 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). The role of § 2255 has been defined by the Fifth Circuit as follows:
Section 2255 provides relief for a petitioner who can establish that either (1) his sentence was
imposed in violation of the Constitution or laws of the United States, (2) the sentencing court
was without jurisdiction to impose the sentence, (3) the sentence was in excess of the
maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack.
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted). “Section 2255 does not
reach errors of constitutional or jurisdictional magnitude that could have been reached by a direct
appeal.” Id.
The plea agreement signed by Ellis included the following provision:
12.
WAIVER OF RIGHT TO APPEAL OR OTHERWISE CHALLENGE SENTENCE:
Except as otherwise provided herein, the defendant expressly waives the right to appeal the
conviction, sentence, fine and/or order of restitution or forfeiture in this case on all grounds.
The defendant further agrees not to contest the conviction, sentence, fine and/or order of
restitution or forfeiture in any post-conviction proceeding, including, but not limited to a
proceeding under 28 U.S.C. § 2255. The defendant, however, reserves the right to appeal the
following: (a) any punishment imposed in excess of the statutory maximum, and (b) a claim
of ineffective assistance of counsel that affects the validity of the waiver or plea itself.

2

The Fifth Circuit upheld the informed and voluntary waiver of post-conviction relief in United
States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d 463, 465
(5th Cir. 1995), the Fifth Circuit observed that it had approved the use of waivers but added that it was
inappropriate to enforce a waiver of an appeal “tainted by ineffective assistance of counsel.” In United
States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an ineffective assistance of
counsel claim raised in a § 2255 proceeding survives a waiver only when the claimed assistance
directly affected the validity of that waiver or the plea itself. The Fifth Circuit subsequently noted that
it has upheld § 2255 waivers except for when there is an ineffective assistance of counsel claim that
affects the validity of that waiver or the plea itself or when the sentence exceeds the statutory
maximum. United States v. Hollins, 97 F. App’x 477, 479 (5th Cir. 2004). More recently, the Fifth
Circuit observed that “the better practice is to ask expressly if the defendant read and understood the
plea agreement.” United States v. Narvaez, 452 F. App. 488, 492 (5th Cir. 2011).
At the change of plea hearing, the Magistrate Judge fully explored whether Ellis’ guilty plea
and waiver were entered knowingly and voluntarily. Ellis stated that he was satisfied with the
representation of his attorney, that he had adequate time to discuss the charges in the indictment with
his attorney and was satisfied that his attorney had considered any possible defenses to the charges.
PH Tr. 5-6. He stated that he understood the charges against him and its elements. Id. at 7-9. He
specified that he understood that the minimum sentence was ten years of imprisonment and that the
maximum sentence was life imprisonment. Id. at 9. He specified that he was pleading guilty of his
own freewill and because he was guilty. Id. at 17. It is specifically noted that the Magistrate Judge
reviewed the plea agreement with Ellis. Id. at 13-18. Ellis specified that he understood the plea
agreement, including the waiver. Id. at 15. He specified he understood he was waiving a proceeding
under § 2255. Id. at 16. Ellis’ statements in open court make it abundantly clear that his guilty plea

3

and waiver were entered knowingly and voluntarily. The Fifth Circuit has held that “solemn
declarations in open court carry a strong presumption of verity.” United States v. Lampazianie, 251
F.3d 519, 524 (5th Cir. 2001) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)).
Ellis has not shown that his guilty plea was not entered knowingly and voluntarily. His § 2255
motion does not address the waiver provision in the plea agreement. He failed to show that his waiver
was not entered knowingly and voluntarily. He likewise failed to show that ineffective assistance of
counsel affected the validity of the waiver or the plea itself. The Court is of the opinion that the waiver
is valid and that it should be upheld; thus, the § 2255 motion may be denied on that basis alone.
In addition to the foregoing, the § 2255 motion should be denied because it lacks merit. Ellis
argues that he is entitled to relief because of ineffective assistance of counsel. Ineffective assistance
of counsel claims are governed by the Supreme Court’s standard established in Strickland v.
Washington, 466 U.S. 668 (1984). Strickland provides a two-pronged standard, and a petitioner bears
the burden of proving both prongs. Id. at 687. Under the first prong, he must show that counsel’s
performance was deficient. Id. To establish deficient performance, he 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. Id. at 688. The standard
requires the reviewing court to give great deference to counsel’s performance, strongly presuming
counsel exercised reasonable professional judgment. Id. at 690. Under the second prong, a petitioner
must show that his attorney’s deficient performance resulted in prejudice. Id. at 687. To satisfy the
prejudice prong, the petitioner “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.” Id. at 694. An ineffective
assistance of counsel claim fails if a petitioner cannot satisfy either the deficient performance or

4

prejudice prong; a court need not evaluate both if he makes an insufficient showing as to either. Id.
at 697.
Ellis initially argued that his attorney was ineffective for failing to challenge venue. He noted
that he was a resident of Shreveport, Louisiana, as opposed to a location in the Eastern District of
Texas. He asserted that the alleged “controlled delivery” took place within the confines of Shreveport,
rather than a location within this Court’s jurisdiction. His venue argument is based on the claim that
“[a]ny person leaving this judicial district to meet Mr. Ellis at the date and time of arrest were either
government agents or persons acting under control of the government.” He stressed that “preparatory
acts [including, but not limited to, telephone calls] alone cannot support venue.” United States v.
Strain, 396 F.3d 689, 697 (5th Cir. 2005).
The Government correctly observed that Strain does not apply. The defendant in Strain was
charged with harboring and concealing a fugitive, her husband, in violation of 18 U.S.C. § 1701. Id.
at 691. The Government argued in Strain that venue was proper in the Western District of Texas based
on phone calls made by Strain to her husband while she was in the Western District of Texas. Id.
Relying on the venue statute for a continuing offense alleged to have been committed in multiple
districts, the Fifth Circuit held that phone calls between Strain and her husband did not constitute a
physical act that would make venue proper in the Western District of Texas. Id. at 692 n.2.
Ellis, on the other hand, was charged with a conspiracy. In “conspiracy offenses, venue is
proper in any district where the agreement was formed or an overt act occurred” in furtherance of the
conspiracy. United States v. Caldwell, 16 F.3d 623, 624 (5th Cir. 1994) (citations omitted). The
circumstances surrounding venue in the present case are identical to those in United States v. GarciaMendoza, 587 F.3d 682 (5th Cir. 2009). The defendants were charged with conspiracy to possess with
intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. Id. at 684-85. The co-

5

conspirators were transporting the drugs from Dallas to Shreveport via Interstate 20. Id. at 686. The
route passed through the Eastern District of Texas. Id. The Fifth Circuit found that “one coconspirator’s travel through a judicial district in furtherance of the crime alleged establishes venue as
to all co-conspirators.” Id. at 687. See also United States v. Rodriguez-Lopez, 756 F.3d 422, 430 (5th
Cir. 2014) (venue was proper in the Eastern District of Texas since one co-conspirator hauled
marijuana through the district).
In the present case, co-conspirators Aguila and Morales were observed leaving Dallas and
heading to Shreveport via Interstate 20. PSR ¶ 14. They were stopped by the DPS in Van Zandt
County in the Eastern District of Texas and found to be in possession of 7.027 kilograms of cocaine.
PSR ¶ 16. They confessed that this cocaine was to be delivered to an individual later identified as
Ellis. PSR ¶ 17-18. Venue was thus proper in the Eastern District of Texas based on this overt act in
furtherance of the conspiracy. Defense counsel did not have a valid basis upon which to challenge
venue. A defense attorney is not required to make frivolous or futile motions or objections. Johnson
v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990).
Ellis’ trial counsel was not ineffective for failing to file a frivolous motion challenging venue. His first
ineffective assistance of counsel claim lacks merit.
Ellis next alleges that his attorney was ineffective for stipulating that he was responsible for
at least five kilograms but less than fifteen kilograms of cocaine. In support of this claim, Ellis focuses
on DEA Agent Richard Martinez’s statement that he was conducting a “controlled delivery.” SH Tr.
12. According to Martinez, Ellis and another individual “were to receive three kilograms of cocaine
for approximately $74,000.” Id.
The Government correctly noted that a defendant in a drug conspiracy can be held responsible
for the amount of drugs that he knew or reasonably could have known or believed were involved in

6

the conspiracy. United States v. Akin, 746 F.3d 590, 607 (5th Cir. 2014). In determining the
defendant’s responsibility, his relationship to the other conspirators and any other information with
sufficient indicia of responsibility can be considered. Id.
In the present case, the record shows that Ellis was a leader or organizer in the conspiracy. SH
Tr. 8. He participated in seven to ten drug transactions. PSR ¶ 22. As a leader of the conspiracy, it
was reasonably foreseeable for Ellis to know that Aguila and Morales were transporting 7.072 kg. of
cocaine. Counsel’s representation was not deficient for encouraging Ellis to stipulate to a range of not
less than five but not more than fifteen grams of cocaine. The second ineffective assistance of counsel
claim lacks merit.
Ellis next argues that his attorney was ineffective for attempting to obtain a sentence
modification based on a polygraph test. More specifically, counsel attempted to persuade the Court
that Ellis was not a leader or director of the conspiracy based on the results of the polygraph. SH Tr.
6. He stressed that “Fifth Circuit precedents unequivocally hold that such evidence is inadmissible.”
United States v. Clark, 598 F.2d 994, 995 (5th Cir. 1979).
The Government persuasively argued that Ellis cannot satisfy Strickland’s prejudice prong.
The transcript from the sentencing hearing reveals that the Court specifically observed that the results
of the polygraph test were inadmissible and could not be considered. SH Tr. 8. Ellis has not shown
that his attorney’s comments during the sentencing hearing were considered or harmed him in any
respect. He has not satisfied the second prong of Strickland. Moreover, regardless of whatever
possibly could have been shown on the inadmissible polygraph test, the admissible evidence in this
case supports a conclusion that Ellis was an organizer or leader of the conspiracy; thus, the four point
enhancement was appropriate. The third ineffective assistance of counsel claim lacks merit.

7

Ellis finally argued that counsel was ineffective for failing to enter into a meaningful plea
agreement with the Government. He observed that the plea agreement was drafted by the Government
and that it did not provide any benefit to him other than a two-level reduction pursuant to acceptance
of responsibility and an additional one-level reduction by pleading guilty in a timely fashion. Ellis has
not, however, cited any authority showing that he has a basis for relief on this claim. He offered
nothing other than conclusory allegations and bald assertions, which are insufficient to support a
petition for a writ of habeas corpus. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000); Koch,
907 F.2d at 530; Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Nonetheless, in order to obtain
relief, he must show that his attorney’s representation fell below an objective standard of
reasonableness and a reasonable probability exists that, “but for counsel’s errors, he would have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
More recently, the Supreme Court reiterated that the failure of a petitioner to make that showing
forecloses the possibility of relief. Premo v. Moore, 562 U.S. 115, ___, 131 S. Ct. 733, 745 (2011).
Ellis’ claim neither addresses nor satisfies the standard for obtaining relief. Thus his final ineffective
assistance claim, like all of his previous ineffective assistance of counsel claims, lacks merit.
In conclusion, the motion to vacate, set aside or correct Ellis’ sentence should be denied.
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 Ellis has not yet filed a notice of appeal, it is respectfully recommended that
this Court, nonetheless, address whether Ellis 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

8

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 v.
McDaniel, 529 U.S. 473, 484 (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 Ellis’ § 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
(2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the court find
that Ellis is not entitled to a certificate of appealability as to the claims raised.
Recommendation
It is recommended that Ellis’ motion to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 be denied and the case dismissed with prejudice. It is further recommended that a
certificate of appealability be denied.

9

Within fourteen (14) days after service of the magistrate judge’s report, any party must serve
and file specific written objections to the findings and recommendations of the magistrate judge. 28
U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify the place in
the magistrate judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the magistrate judge is
not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to
factual findings and legal conclusions of the magistrate judge that are accepted by the district court,
.

except upon grounds of plain error, provided that the party has been served with notice that such
consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen days).
SIGNED this 11th day of February, 2015.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

10