Tolbert v. USA

Filing 30

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendations. It is accordingly ORDERED Movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (#1) pursuant to 28 U.S.C. § 2255 is DENIED and DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either party not previously ruled upon are DENIED. Signed by Judge Marcia A. Crone on 9/29/2017. (daj, )

UNITED STATES DISTRICT COURT

JACOB TOLBERT, #19685-078
versus
UNITED STATES OF AMERICA

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 4:14CV199
CRIMINAL ACTION NO. 4:12CR39

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson. The Magistrate Judge issued a Report and Recommendation
concluding that the motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C.
§ 2255 should be denied and dismissed with prejudice. Movant filed objections.
The Report of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Having
made a de novo review of the objections raised by Movant to the Report, the Court concludes the
findings and conclusions of the Magistrate Judge are correct and the objections of Movant are
without merit.
In his objections, Movant simply reurges issues raised in his petition, and asserts that a
certificate of appealability is warranted in this case. Movant cites to a recent Supreme Court case
in support of his ineffective assistance of counsel claim concerning his guilty plea, Lee v. United
States, 137 S. Ct. 1958 (2017). In Lee, the evidence showed that the petitioner would not have
pleaded guilty had he known it would lead to deportation. The Supreme Court held that the
prejudice caused by petitioner’s counsel’s deficient performance was “backed by substantial and
uncontroverted evidence,” and that “but for [his] counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Id. at 1969. Both the petitioner and his plea
counsel testified that deportation was the determinative issue in the guilty plea. The Lee case,

however, is not analogous to the instant case. Other than his own self-serving claims, Movant fails
to present evidence, much less, “substantial and uncontroverted evidence” showing that, but for
any alleged errors by counsel, he would have proceeded to trial rather than plead guilty. “Courts
should not upset a plea solely because of post hoc assertions from a defendant about how he would
have pleaded but for his attorney’s deficiencies.” Id. at 1967.
It is accordingly ORDERED Movant’s Motion to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (#1) pursuant to 28 U.S.C. § 2255 is DENIED and DISMISSED
with prejudice. A certificate of appealability is DENIED. All motions by either party not
previously ruled upon are DENIED.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 29th day of September, 2017.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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