Richardson v. USA

Filing 32

MEMORANDUM ORDER ADOPTING 30 REPORT AND RECOMMENDATIONS and a certificate of appealability will not be issued. Signed by District Judge Robert W. Schroeder, III on 7/9/2018. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
SHANNON GUESS RICHARDSON

§

v.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 5:16-CV-62

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Caroline M. Craven under 28 U.S.C. § 636. On May 9, 2018, the Magistrate Judge issued a
Report and Recommendation, recommending the motion to vacate, set aside, or correct sentence
filed under 28 U.S.C. § 2255 be denied. Docket No. 30. The Report of the Magistrate Judge, which
contains her proposed findings of fact and recommendations for the disposition of such action, has
been presented for consideration. No objections to the Report and Recommendation have been
filed.1 Thus, any aggrieved party is not entitled to de novo review by the district court of the
proposed findings and recommendations of the Magistrate Judge. See Fed. R. Civ. P. 72.
Movant argued the following points of error:
1. Ineffective assistance of trial counsel for failure to present mitigating evidence that could
have resulted in a different sentence;
2. Ineffective assistance of counsel for failure to petition the court for a downward
departure;
3. Involuntary and unknowing guilty plea due to ineffective assistance of counsel;

1

The Report and Recommendation was entered on May 9, 2018. Docket No. 30. Movant received a copy of the
Report and Recommendation on May 15, 2018. Docket No. 31.

4. Ineffective assistance of counsel for failure to argue sentencing disparity;
5. Ineffective assistance of counsel for failure to call a critical witness;
6. Ineffective assistance of counsel for failure to investigate key elements of the case,
namely the toxin’s purity;
7. Ineffective assistance of counsel for violating Texas State Bar ethics rules;
8. Violation of Fifth Amendment right to remain silent;
9. Prosecutorial misconduct for withholding evidence;
10. The offense level was erroneously and improperly enhanced; and
11. The government coerced her into signing the plea agreement and her attorney provided
ineffective assistance of counsel by coercing her to plead to a time-barred charge.
Docket Nos. 1, 5– 6.
The Magistrate Judge issued a thorough, 32-page report. Docket No. 30. The Magistrate
Judge found that the movant’s signed plea agreement contained “an express waiver of her right to
appeal or seek relief under § 2255.” Id. at 13. Moreover, the Court explained that the record
indicated that the “movant’s plea and waiver were both knowing and voluntary.” Id. The
Magistrate Judge then reviewed each of the movant’s claims in turn and recommended that they
be denied. Id. at 15–32.
The Court has reviewed the Report and Recommendation and concludes that there exist no
grounds of plain error or manifest injustice. The Court hereby adopts the Report of the United
States Magistrate Judge as the findings and conclusions of this Court. The motion to vacate, set
aside or correct sentence should be denied.
Furthermore, the Court is of the opinion the movant is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed

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unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a
certificate of appealability requires the movant to make a substantial showing of the denial of a
federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the movant need not
establish that she would prevail on the merits. Rather, she must demonstrate that the issues are
subject to debate among jurists of reason, that a court could resolve the issues in a different manner,
or that the questions presented are worthy of encouragement to proceed further. See Slack, 529
U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability should be
resolved in favor of the movant, and the severity of the penalty may be considered in making this
determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849
(2000).
.

In this case, movant has not shown that any of the issues would be subject to debate among

jurists of reason. The questions presented are not worthy of encouragement to proceed further.
Therefore, the movant has failed to make a sufficient showing to merit the issuance of certificate
of appealability. Accordingly, a certificate of appealability will not be issued.
Conclusion
The Court ADOPTS the Report and Recommendation of the Magistrate Judge.

A

certificate of appealability will not be issued.
SIGNED this 9th day of July, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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