Wilson v. USA
Filing
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MEMORANDUM OPINION AND ORDER. ORDERED that Movant's motion filed pursuant to 28 U.S.C. § 2255 is DENIED, and the case is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. All motions not previously ruled upon are DENIED. Signed by District Judge Amos L. Mazzant, III on 3/6/2020. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CECIL WILSON, #21984-078
VS.
UNITED STATES OF AMERICA
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CIVIL ACTION NO. 4:16cv834
CRIMINAL ACTION NO. 4:13cr281(29)
MEMORANDUM OPINION AND ORDER
Pending before the Court is pro se Movant Cecil Wilson’s motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255, asserting violations concerning his Eastern District
of Texas, Sherman Division conviction. After careful consideration and for the reasons stated below,
the Court will deny the motion.
BACKGROUND
On February 19, 2015, Movant pleaded guilty pursuant to a plea agreement to (1) conspiracy
to possess with the intent to distribute 500 grams or more of methamphetamine or 50 grams or more
of methamphetamine (actual) and (2) possession of a firearm in furtherance of a drug trafficking
crime, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(c), respectively. His plea agreement was
entered into the record on March 6, 2015. On August 11, 2015, the Court sentenced Movant to 168
months’ imprisonment for conspiracy and 60 months’ imprisonment for possession of a firearm, to
be served consecutively. On July 7, 2016, the United States Court of Appeals for the Fifth Circuit
dismissed Movant’s appeal pursuant to Anders v. California, 386 U.S. 738 (1967). The Fifth Circuit
held that, after reviewing the record and Movant’s reply brief, it found there were “no non-frivolous
issues” for appellate review. United States v. Wilson, 667 F. App’x 471, 472 (5th Cir. 2016).
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Movant filed the instant § 2255 motion on November 1, 2016. In it, he asserts he is entitled
to relief because the Court erred when it did not provide a minor role adjustment pursuant to
Amendment 794 at sentencing. He also claims that appellate counsel should have argued on direct
appeal that he was entitled to a minor role adjustment in the conspiracy. The Government filed a
response, claiming Movant’s issues are barred from collateral review and are without merit, to which
Movant filed a reply.
STANDARD FOR FEDERAL HABEAS CORPUS PROCEEDINGS
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 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). Conclusory allegations, which are unsupported
and unsupportable by anything else contained in the record, do not raise a constitutional issue in a
habeas proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). 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
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appeal.” Id. Similarly, “issues raised and disposed of in a previous appeal from an original judgment
of conviction are not considered in § 2255 motions.” United States v. Kalish, 780 F.2d 506, 508 (5th
Cir. 1986) (citing United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)); United States v. Goudeau,
512 F. App’x 390, 393 (5th Cir. 2013).
MOVANT’S GUILTY PLEA
Movant pleaded guilty pursuant to a written plea agreement. Because Movant raises an issue
that is barred from collateral review pursuant to his guilty plea waiver, the Court first examines
whether Movant knowingly and voluntarily pleaded guilty. The Fifth Circuit upholds the informed
and voluntary waivers of post-conviction relief. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994).
In his plea agreement, Movant waived his rights to plead not guilty, to be tried by a jury, to
have his guilt proved beyond a reasonable doubt, to confront and cross-examine witnesses, to call
witnesses in his defense, and to not be compelled to testify against himself. He understood the
charge and the elements of the offenses, as well as the possible sentences he faced. Movant stipulated
that his guilty plea was freely and voluntary given, and not the result of force, threats, or promises,
other than those contained in the written plea agreement. Also included in his plea agreement was
the following waiver provision:
Except as otherwise provided in this paragraph, the defendant waives the right to
appeal the conviction, sentence, fine, order of restitution, or order of forfeiture in this
case on all grounds. The defendant further agrees not to contest the conviction,
sentence, fine, order of restitution, or order of 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 any punishment imposed in excess
of the statutory maximum. The defendant also reserves the right to appeal or seek
collateral review of a claim of ineffective assistance of counsel.
Cause No. 4:13cr832(29) (Dkt. #832). Movant’s plea agreement also states:
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The defendant has thoroughly reviewed all legal and factual aspects of this case with
defense counsel and is fully satisfied with defense counsel’s legal representation.
The defendant has received satisfactory explanations from defense counsel
concerning each paragraph of this plea agreement, each of the defendant’s rights
affected thereby, and the alternatives to entering a guilty plea. After conferring with
counsel, the defendant concedes guilt and has concluded that it is in the defendant’s
best interest to enter this agreement rather than proceeding to trial.
Id. Movant states, “this plea of guilty is freely and voluntarily made and is not the result of force,
threats, or promises other than those set forth in this agreement.” Id.
At Movant’s change of plea hearing, he said he understood the charges and the elements of
the offenses and the minimum and maximum sentences he could receive. Movant read the plea
agreement before signing it, and understood its contents. The Court admonished Movant as to his
waiver of rights and the rights he was reserving. Movant confirmed that no one had coerced him or
induced him to plead guilty, and that the facts contained in the Factual Statement were true. At the
conclusion of the hearing, the Court again verified that Movant understood the terms of his
agreement, that the statements contained in his Factual Statement were true and correct, and that the
plea was knowing and voluntary.
Formal declarations in open court carry a strong presumption
of truth. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Accordingly, the plea hearing shows that
Movant’s guilty plea was knowing and voluntary.
In his Factual Statement, Movant said that he “and one or more persons in some way or
manner made an agreement to . . . knowingly and intentionally possess with the intent to distribute
and dispense at least 500 grams but less than 15 kilograms of a mixture or substance containing a
detectable amount of methamphetamine or at least 500 grams but less than 1.5 kilograms of
methamphetamine (actual).” Criminal Action No. 4:13cr281(29) (Dkt. #834). Movant also said he
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“knew the unlawful purpose of the agreement and joined in it with the intent to further it.” Id.
Movant said his role was “to supply co-conspirators with kilogram quantities of methamphetamine
from various sources, which would then be distributed to other co-conspirators and co-defendants
during the term of the conspiracy.” Id. Movant also stated that he “did knowingly possess firearms
. . . in furtherance of the commission of the crime.” Id. The Court concludes that Movant’s plea
was knowing and voluntary after reviewing the plea agreement itself and various other documents
including the transcript from the plea hearing. Accordingly, the plea agreement must be upheld.
Wilkes, 20 F.3d at 653.
In the instant motion, Movant claims his sentence was improper because he was not given
credit for being a minor participant pursuant to Amendment 794. He does not allege that his
sentence exceeded the statutory maximum – an issue reserved for review in his plea agreement.
Under Movant’s waiver contained in his knowing and voluntary plea agreement, this issue is waived.
Furthermore, it is well settled that a court’s technical application of the sentencing guidelines does
not give rise to a constitutional issue under § 2255. United States v. Segler, 37 F.3d 1131, 1134 (5th
Cir. 2016); States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994) (court’s technical application of the
sentencing guidelines does not constitute a constitutional claim).
INEFFECTIVE ASSISTANCE OF COUNSEL
Movant also asserts he is entitled to relief based on ineffective assistance of appellate
counsel – an issue reserved for collateral review. A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal of a conviction requires the defendant to show the
performance was deficient and the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Failure to make the
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required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness
claim.” Id. at 700. A movant who seeks to overturn his conviction on the grounds of ineffective
assistance of counsel must prove his entitlement to relief by a preponderance of the evidence. James
v. Cain, 56 F.3d 662, 667 (5th Cir. 1995). The standard requires the reviewing court to give great
deference to counsel’s performance, strongly presuming counsel exercised reasonable professional
judgment. Strickland, 466 U.S. 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).
A 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, a court need not address the question of counsel's performance. Id. at 697.
The right to effective assistance of counsel is provided not only at trial, but also extends to direct
appeal, See Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir. 1991),
To prevail on a claim of ineffective assistance of counsel on appeal, the petitioner must make
a showing that had counsel performed differently, there would have been revealed issues and
arguments of merit on the appeal. Id. In a counseled appeal after conviction, the key is whether the
failure to raise an issue worked to the prejudice of the defendant. Id. This standard has been affirmed
by the Supreme Court. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (holding that the petitioner
must first show that his appellate attorney was objectively unreasonable in failing to find arguable
issues to appeal, and also a reasonable probability that, but for his counsel’s unreasonable failure to
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file a merits brief raising these issues, he would have prevailed on his appeal). See also Williams
v. Taylor, 529 U.S. 362 (2000); Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001).
Furthermore, an appellate counsel’s failure to raise certain issues on appeal does not deprive
an appellant of effective assistance of counsel where the petitioner did not show trial errors with
arguable merit. Hooks v. Roberts, 480 F.2d 1196, 1198 (5th Cir. 1973). Appellate counsel is not
required to consult with his client concerning the legal issues to be presented on appeal. Id. at 1197.
An appellate attorney’s duty is to choose among potential issues, using professional judgment as to
their merits – every conceivable issue need not be raised on appeal. Jones v. Barnes, 463 U.S. 745,
749 (1983).
In this case, Movant’s appellate counsel filed an Anders brief in which appellate counsel
stated he found no meritorious issues to raise on appeal. Wilson, 667 F. App’x at 472. The Fifth
Circuit agreed after reviewing the record and Movant’s reply brief, and it found there were “no nonfrivolous issues” for appellate review. Id. Movant claims that counsel was ineffective for failing
to raise the issue that his sentence should have received the two-level adjustment as a minor
participant pursuant to Amendment 794.
The record shows that in the original PSR, paragraph 19 stated:
Adjustment for Role in the Offense: Although the defendant stipulated that he knew
or it was reasonably forseeable to him from jointly undertaken activity that the
conspiracy involved at least 5 kilograms but less than 15 kilograms of a mixture or
substance containing a detectable amount of methamphetamine or at least 500 grams
but less than 1.5 kilograms of methamphetamine (actual) and that his role in this
conspiracy was to supply conspirators with kilogram quantities of methamphetamine
from various souces, the evidence indicates that he was a courier of a single drug
transaction in a 49 defendant drug conspiracy. There is no evidence that he was
compensated for his involvement or that he had more than limited knowledge or
understanding of the scope of the conspiracy. As such, a minor role adjustment is
applicable. U.S.S.G. § 3B1.2.
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Criminal Action No. 4:13cr281(29) (Dkt. #1193, p. 8). As shown, Movant was given a two-level
reduction. The Government objected to the two-level reduction, however, arguing that Movant was
not a minor participant. A revised PSR was issued, which eliminated the two-level reduction, and
Movant’s trial counsel filed objections. Counsel noted the removal of the reduction made a fouryear difference to the sentence in the proposed guideline range, and urged the Court to find that
Movant is less culpable than the other participants and reinstate the two-level reduction.
The sentencing hearing was continued to August 7, 2015, to allow the parties and the Court
to research whether Movant should receive the two-level adjustment. At sentencing, after hearing
arguments from both parties, the Court noted it had read the relevant caselaw concerning this issue,
and concluded that Movant’s objections to the revised PSR should be overruled. The Court noted
that the applicability of 3B1.2 rests on whether the Defendant’s conduct “was minor in relation to
the conduct for which he was held accountable, not in relation to the whole criminal enterprise as
a whole.” Criminal Action No. 4:13cr281(29) (Dkt. #1514, p. 10). “The conduct is how does your
client’s conduct compare to the average participant in the conspiracy as well.” Id. The Court
considered whether Movant’s role was substantially less culpable or peripheral to the advancement
of the illicit activity. Ultimately, the Court adopted the factual findings, undisputed facts, and
guideline applications contained in the revised PSR. The Court concluded that Movant’s offense
level was 33, with a criminal history category of III, providing for an advisory guideline range of 168
months to 210 months. After considering the factors noted in 18 U.S.C. § 3553(a) and the
sentencing guidelines, the Court sentenced Movant to the bottom of the range – 168 months on the
conspiracy charge, and 60 months on the possession of firearm charge, for a total of 228 months’
imprisonment. Movant did not receive the two-level adjustment for a minor participant.
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On appeal, appellate counsel filed an Anders brief. In response, Movant filed a pleading
objecting to counsel’s withdrawal and raised the issue he now raises: that appellate counsel should
have argued that Movant should have received the two-level adjustment under Amendment 794. The
Fifth Circuit noted Movant’s response to the Anders brief, and concurred with appellate counsel’s
assessment that there were no nonfrivolous issues for appellate review. Criminal Action No.
413cr281(29) (Dkt. #1736).
Movant fails to show the District Court abused its discretion at sentencing. He also fails to
show that, had appellate counsel raised the issue, he would have prevailed on appeal. Hooks, 480
F.2d at 1198. In fact, the record shows that the Fifth Circuit considered Movant’s complaint that
appellate counsel did not raise that particular issue, and agreed with appellate counsel – “the appeal
presents no nonfrivolous issue for appellate review.” Criminal Action No. 413cr281(29) (Dkt.
#1736). In sum, Movant fails to show counsel’s performance was deficient or 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.
CONCLUSION
The Court concludes that Movant’s guilty plea was knowing and voluntary; thus, the guilty
plea agreement must be upheld on federal review. Wilkes, 20 F.3d at 653. Therefore, Movant’s
argument that the Court erred in his sentencing is waived pursuant to the waiver in his plea
agreement. Reserved for review, however, is Movant’s claim that counsel was ineffective. Movant
fails to meet his burden in showing that, but for appellate counsel’s alleged deficient performance,
he would have prevailed on appeal. Smith, 528 U.S. at 285; Strickland, 466 U.S. at 694.
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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 the 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
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.
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In this case, 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 (2003) (citing Slack,
529 U.S. at 484). Accordingly, the Court finds that Movant is not entitled to a certificate of
appealability.
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Therefore, it is ORDERED that Movant’s motion filed pursuant to 28 U.S.C. § 2255 is
DENIED, and the case is DISMISSED WITH PREJUDICE. A certificate of appealability is
DENIED. All motions not previously ruled upon are DENIED.
SIGNED this 6th day of March, 2020.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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