Daniel v. USA

Filing 25

Order 20 Accepting Findings and Recommendations and Denying Certificate of Appealability re: 1 Motion to Vacate under 28 U.S.C. 2255 filed by Tommy Dale Daniel. The motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255 is DENIED. (Ordered by Judge Reed C. O'Connor on 9/1/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

TOMMY DALE DANIEL, #18826-298,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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3:15-CV-3413-O-BK
(3:07-CR-0142-O-1)

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
in this case. Respondent and Petitioner filed objections, and the District Court has made a de
novo review of those portions of the proposed findings and recommendation to which objection
was made. For the reasons set out below, the objections are overruled, and the Court ACCEPTS
the Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
I.
The Government objects to footnote 1 of the Magistrate Judge’s recommendation, which
concluded that the section 2255 motion was timely filed for purposes of the one-year statute of
limitations period. Otherwise, the Government agrees that the section 2255 motion should be
denied.
In cases such as this, “in which a defendant’s conviction is affirmed on appeal but the
case is remanded for resentencing [here restitution], the defendant’s conviction becomes final for
limitations purposes under the AEDPA when ... both the conviction and sentence become final
by the conclusion of direct review or the expiration of time for seeking such review.” United
States v. Messervey, 269 F. App’x 379, 381 (5th Cir. 2008) (per curiam) (citing Burton v.
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Stewart, 549 U.S. 147, 156-157 (2007) (per curiam) (where state appellate court remands for
resentencing, the limitations period does not begin until both the conviction and resentencing
claims are final on direct review)); see also Scott v. Hubert, 635 F.3d 659, 664-667 (5th Cir.
2011) (holding the same in the context of a state habeas petition sunder 28 U.S.C. § 2254).
This Court reached the same conclusion in a § 2255 case where the defendant’s sentence
and restitution had been vacated in part and the case remanded for resentencing. See Bazemore
v. United States, 3:15-CV-03574-O, 2015 WL 9948109, at *1 (N.D. Tex. Nov. 6, 2015),
recommendation adopted, 2016 WL 368004 (N.D. Tex. Jan. 29, 2016) (dismissing § 2255
motion without prejudice pending completion of direct appeal and noting that the conviction was
not final for statute of limitations purposes until both the conviction and sentence were final).
Moreover, at least two circuits have held that the one-year limitations period for filing a § 2255
motion begins to run when the district court’s revised restitution order on remand becomes final.
See Gonzalez v. United States, 792 F.3d 232, 235-36 (2nd Cir. 2015); United States v.
Lafromboise, 427 F.3d 680, 683-84 (9th Cir. 2005) (when the court of appeals either partially or
wholly reverses a defendant’s conviction or sentence, or both, and expressly remands to the
district court, the judgment does not become “final,” and the one-year limitations period for
filing a § 2255 motion does not begin to run, until the district court has entered an amended
judgment and the time for appealing that judgment has passed); see also United States v. Colvin,
204 F.3d 1221, 1224-26 (9th Cir. 2000) (explaining the legal and policy rationale for adopting a
clear rule of finality when the court of appeals either partially or wholly reverses a defendant’s
conviction or sentence, or both, and expressly remands the case to the district court).
The Government relies on United States v. Olvera, 775 F.3d 726, 728 (5th Cir. 2015),
where a motion to reduce under Rule 35(b) ultimately resulted in the entry of an amended

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judgment reducing the sentence. There, the United States Court of Appeals for the Fifth Circuit
held that the one-year limitations period did not renew and, “because the sentence reduction
ha[d] no impact on the finality of Olvera’s conviction, his [section 2255] motion was untimely
under § 2255(f)(1).” Id. In seeking to extend Olvera, the Government claims that the litigation
over restitution had no impact on the finality of Petitioner’s conviction or sentence just like the
motion to reduce sentence in Olvera. Doc. 21 at 6. However, Olvera is distinguishable in that it
dealt with whether a post-judgment motion can revive an already expired one-year limitations
period, and not when a partial remand for sentencing purposes becomes final. The Government
also asserts that the Petitioner could have challenged his conviction contemporaneously with the
petition for writ of certiorari, but failed to do so. Id. Doc. 21 at 6-7. That argument is inapposite.
Again the real issue is when Petitioner’s conviction became final for purposes of § 2255 relief.
Under Messervey and Burton, supra, the Court concludes that finality is determined when both
the conviction and the sentence become final. The Court, thus, overrules the Government’s
objection and finds that the section 2255 motion was timely filed.
II.
Petitioner objects to the Magistrate Judge’s recommendation insofar as it recommends
that his § 2255 motion should be denied.
He claims he is actually innocent and argues at length that the evidence on which the
Government relied at trial proves his innocence. Doc. 24 at 4-7. However, as the Magistrate
Judge correctly found Petitioner has failed to present any new evidence that would undermine
this Court’s confidence regarding the finding of guilt by the jury at trial. See McQuiggin v.
Perkins, ___ U.S. ___, 133 S. Ct. 1924, 1928, 1935 (2013) (to establish actual innocence, a
petitioner must present new evidence in support of his claim and “‘show that it is more likely
than not that no reasonable juror would have convicted him in the light of the new evidence.’”).
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Likewise, even when liberally construed, Petitioner’s arguments challenging his underlying
conviction fail to offer a convincing claim of actual innocence. Indeed, as the Supreme Court
has noted “tenable actual-innocence gateway pleas are rare.” Id. at 1942.
Petitioner has also failed to show ineffective assistance of counsel on appeal. Doc. 24 at
10-11. Again his arguments, even when liberally construed, do not present a credible, nonfrivolous issue for appeal that was stronger than the issues his counsel presented. Consequently,
the Court finds that grounds 1-4 and 6, including the prosecutorial allegations raised in
Petitioner’s objections, are procedurally barred.
Next, Petitioner takes issue with the denial of his claims of ineffective assistance of
counsel at trial. The Magistrate Judge concluded the claims were vague and conclusory. In his
objections, Petitioner seeks to expand his assertions, presenting new, general allegations in
support of his ineffectiveness claims. Doc. 24 at 10. However, even assuming Petitioner could
establish deficient performance, he has clearly failed to meet the heavy burden of showing
prejudice – namely that counsel’s deficient performance would have affected the outcome of his
case. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (to prove prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”).
Lastly, Petitioner adds a new claim in support of ground 6 – abuse of discretion – initially
raised in the § 2255 motion. Specifically, he argues the undersigned should have recused before
trial to maintain an appearance of impartiality and to avoid a “sham trial.” Doc. 24 at 11-13.
However, as previously noted, ground 6 is procedurally barred and Petitioner has failed to show
cause and prejudice or a fundamental miscarriage of justice.

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III.
The Court has made a de novo review of those portions of the proposed findings and
recommendation to which objection was made. The objections are overruled and the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge are accepted.
Accordingly, the motion to vacate, set aside, or correct sentence under 28 U.S.C. ' 2255 is
DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Sections 2254 and 2255 Proceedings in the United
States District Court, and 28 U.S.C. § 2253(c), the Court also DENIES a certificate of
appealability. The Court adopts and incorporates by reference the Magistrate Judge’s Findings,
Conclusions and Recommendation as well as the reasons set out in in this order in support of its
finding that the petitioner has failed to show (1) that reasonable jurists would find this Court’s
“assessment of the constitutional claims debatable or wrong,” or (2) that reasonable jurists would
find “it debatable whether the petition states a valid claim of the denial of a constitutional right”
and “debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).1

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Rule 11 of the Rules Governing §§ 2254 and 2255 Proceedings reads as follows:
(a) Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the
final order, the court may direct the parties to submit arguments on whether a certificate
should issue. If the court issues a certificate, the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a
certificate, the parties may not appeal the denial but may seek a certificate from the court
of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial
does not extend the time to appeal.
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If petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or
submit a motion to proceed in forma pauperis.
SO ORDERED this 1st day of September, 2017.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal
an order entered under these rules. A timely notice of appeal must be filed even if the
district court issues a certificate of appealability.
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