Watson v. USA
Filing
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MEMORANDUM OPINION AND ORDER: The § 2255 motion is DENIED with prejudice. (Ordered by Judge Ed Kinkeade on 3/5/2019) (axm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TYRONE WATSON,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
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No. 3:16-CV-810-K
No. 3:13-CR-295-K(22)
MEMORANDUM OPINION AND ORDER
Before the Court is Tyrone Watson’s (Movant) motion to vacate, set-aside, or
correct sentence pursuant 28 U.S.C. § 2255. For the following reasons, the Court denies
the motion.
I. BACKGROUND
Watson was charged by superseding information with conspiracy to possess with
the intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B), 846. (Doc. 502.) (Unless otherwise indicated, all document
numbers refer to the docket number assigned in the underlying criminal action,
3:13-CR-295-K(22).) He pleaded guilty. The presentence report (PSR) used the 2013
United States Sentencing Guidelines (USSG). (Doc. 698-1 at 9, ¶ 31.) The base
offense level was 32. (Id., ¶ 32.) Watson was involved in a jointly undertaken criminal
activity with two others who possessed a firearm in the stash house where marijuana was
stored. Because a dangerous weapon was possessed, two offense levels were added under
USSG § 3E1.1(a).
(Id., ¶ 33.)
Three levels were deducted for acceptance of
responsibility, and the total offense level was 31. (Id. at 9-10, ¶¶ 39-41.) With the
offense level of 31 and a criminal history category of three, the resulting guideline range
was 135-168 months’ imprisonment. (Id. at 17, ¶ 83.) Watson was sentenced to 60
months’ imprisonment. (Doc. 871 at 2.) He did not appeal.
Watson submitted an undated letter to the Court, post-marked on March 7,
2016, and received on March 11, 2016. (3:16-CV-810-K, doc. 1.) It was construed as
a § 2255 motion, and Watson filed an amended § 2255 motion. (Id., doc. 4.)
Watson raises the following grounds:
(1) Counsel was ineffective for advising him to sign a plea agreement that resulted
in a two-point guideline enhancement and for assuring him that he would be
eligible increase; telling him that he would be eligible for a sentence reduction
under the Bureau of Prison’s Residential Drug Abuse Program (RDAP), which
made his plea involuntary; and failing to object to the enhancement.
(2) The Court misapplied the two-point enhancement.
(Id., doc. 4 at 7.)
II. SCOPE OF RELIEF AVAILABLE UNDER § 2255
“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have been raised on direct appeal
and would, if condoned, result in a complete miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks
omitted). It is well-established that “a collateral challenge may not do service for an
appeal.” United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting
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United States v. Frady, 456 U.S. 152, 165 (1982)).
A failure to raise a claim on direct appeal may procedurally bar an individual from
raising the claim on collateral review. United States v. Willis, 273 F.3d 592, 595 (5th Cir.
2001). Defendants may only collaterally attack their convictions on grounds of error
omitted from their direct appeals upon showing “cause” for the omission and “actual
prejudice” resulting from the error. Shaid, 937 F.2d at 232. However, “there is no
procedural default for failure to raise an ineffective-assistance claim on direct appeal”
because “requiring a criminal defendant to bring [such] claims on direct appeal does not
promote the[] objectives” of the procedural default doctrine, “to conserve judicial
resources and to respect the law’s important interest in the finality of judgments.”
Massaro v. United States, 538 U.S. 500, 503-04 (2003). The Government may also waive
the procedural bar defense. Willis, 273 F.3d at 597.
II. STATUTE OF LIMITATIONS
Section 2255 of Title 28 “establishes a ‘1-year period of limitation’ within which
a federal prisoner may file a motion to vacate, set aside, or correct his sentence under
that section.” Dodd v. United States, 545 U.S. 353, 356 (2005). It states that:
A 1-year period of limitation shall apply to a motion under this section.
The
limitation period shall run from the latest of –
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
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Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
With regard to § 2255(f)(1), the judgment was entered on October 20, 2014, and
it became final on November 13, 2014, when the time to appeal expired. See Fed. R.
App. P. 4(b)(1)(A)(i) (providing for 14-day period to appeal from judgment); United
States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (when a federal prisoner does not
appeal a conviction, it becomes final for purposes of § 2255 upon the expiration of time
to file an appeal). Watson does not allege that government action prevented him from
filing a § 2255 petition earlier under § 2255(f)(2).
Watson contends that he was assured by counsel that nothing precluded him from
obtaining early release under RDAP. He states that he is in RDAP, but he is not eligible
for a sentence reduction. On July 28, 2015, the Bureau of Prisons (BOP) found that he
was not eligible for early release because of the enhancement for possession of a weapon.
(3:16-CV-810-K, doc. 4 at 11-12.) Watson asserts that he did not raise his claims
previously, because his attorney assured him that nothing precluded him from obtaining
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early release under RDAP. (Id., doc. 4 at 8.) The facts supporting the claim could have
been discovered when the two-point enhancement was applied at sentencing. Existing
law at that time excluded drug traffickers from RDAP based on the two-point
enhancement for possession of a firearm. See Lopez v. Davis, 531 U.S. 230, 233-44
(2001) (upholding the BOP rule excluding such prisoners from RDAP). The facts
supporting his claim arose when he was sentenced, so § 2255(f)(4) does not apply.
Because the latest of the dates under § 2255(f) is the date that Watson’s
conviction became final, he had until November 13, 2015, to file his § 2255 motion.
He did not file his § 2255 motion until March 7, 2016, at the earliest, when it was postmarked.
See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that
prisoners file their federal pleadings when they place them in the prison mail system).
It is untimely in the absence of equitable tolling.
“[T]he statute of limitations in § 2255 may be equitably tolled in ‘rare and
exceptional circumstances.’” United States v. Patterson, 211 F.3d 927, 930 (5th Cir.
2000).
“The doctrine of equitable tolling preserves a [party’s] claims when strict
application of the statute of limitations would be inequitable.” Davis v. Johnson, 158
F.3d 806, 810 (5th Cir. 1998) (quoting Lambert v. United States, 44 F.3d 296, 298 (5th
Cir. 1995)). It “applies principally where [one party] is actively misled by the [other
party] about the cause of action or is prevented in some extraordinary way from
asserting his rights.” See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting
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Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). In the context of
a habeas petition filed by a state prisoner, the Supreme Court has stated that a habeas
petitioner is entitled to equitable tolling only if he shows that: 1) he has been pursuing
his rights diligently, and 2) some extraordinary circumstance prevented a timely filing.
Holland v. Florida, 130 S.Ct. 2549, 2562 (2010), citing Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). “[E]quity is not intended for those who sleep on their rights.” Covey
v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). Furthermore, Movant bears
the burden to show entitlement to equitable tolling. Phillips v. Donnelly, 223 F.3d 797,
797 (5th Cir. 2000) (per curiam). Courts must examine each case in order to determine
if there are sufficient exceptional circumstances that warrant equitable tolling. Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
Watson has not demonstrated that he diligently pursued his rights or that
extraordinary circumstances prevented him from filing his motion to vacate earlier so as
to warrant equitable tolling. A claim of ineffective assistance of counsel during the guilty
plea proceeding does not warrant equitable tolling. See Jacobs v. Thaler, No. H-10-4973,
2011 WL 1157567 at *3 (S.D. Tex. Mar. 23, 2011). Additionally, Watson was
informed that he was ineligible for early release under RDAP on July 28, 2015, but he
did not file his § 2255 motion until March 2016. He has not shown that he was
diligent. His § 2255 motion is untimely.
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III. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the United States Constitution provides in relevant part
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” U.S. Const. art. VI. It guarantees a criminal
defendant the effective assistance of counsel, both at trial and on appeal. Strickland v.
Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). To
successfully state a claim of ineffective assistance of counsel, the prisoner must
demonstrate that counsel’s performance was deficient and that the deficient performance
prejudiced his or her defense. Id. at 687. A failure to establish either prong of the
Strickland test requires a finding that counsel’s performance was constitutionally
effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins,
528 U.S. 259, 286 n.14 (2000).
In determining whether counsel’s performance is deficient, courts “indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
assistance.” Strickland, 466 U.S. at 689. “The reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or actions.”
Id. at 691. To establish prejudice, a 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; Williams v. Taylor, 529 U.S. 362,
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393 n.17 (2000) (inquiry focuses on whether counsel’s deficient performance rendered
the result of the trial unreliable or the proceeding fundamentally unfair). Reviewing
courts must consider the totality of the evidence before the finder of fact in assessing
whether the result would likely have been different absent counsel’s alleged errors.
Strickland, 466 U.S. at 695-96.
To show prejudice in the sentencing context, the Petitioner must demonstrate
that the alleged deficiency of counsel created a reasonable probability that his or her
sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200
(2001) (holding “that if an increased prison term did flow from an error [of counsel] the
petitioner has established Strickland prejudice”). One cannot satisfy the second prong
of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008,
1012 (5th Cir. 1992). Conclusory allegations are insufficient to obtain relief under §
2255. United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989); United States v.
Daniels, 12 F. Supp. 2d 568, 575-76 (N.D. Tex. 1998); see also Miller v. Johnson, 200 F.3d
274, 282 (5th Cir. 2000) (holding that “conclusory allegations of ineffective assistance
of counsel do not raise a constitutional issue in a federal habeas proceeding”).
The Strickland test applies in the context of a guilty plea. Hill v. Lockhart, 474 U.S.
52, 57-58 (1985). A guilty plea is “open to attack on the ground that counsel did not
provide the defendant with ‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S.
335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770–71 (1970)).
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When a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea. He
may only attack the voluntary and intelligent character of the guilty plea
by showing that the advice he received from counsel was not within the
standards set forth in McMann.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). “[I]n a guilty plea scenario, a petitioner
must prove not only that his attorney actually erred, but also that he would not have
pled guilty but for the error.” See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).
Watson contends that counsel assured him that all firearms charges were dropped
from the case and that nothing precluded him from obtaining a sentence reduction under
18 U.S.C. § 3621(e) for participating in RDAP. He asserts that, but for counsel’s
erroneous advice, he would not have pleaded guilty.
The factual resume stated that it was not intended to be a complete accounting
of all the facts that occurred during the conspiracy. (Doc. 505 at 3.) Watson admitted
in the plea agreement that he understood the charge against him. He had reviewed the
plea agreement with counsel, and he understood everything in it, including the range of
punishment. He and counsel fully discussed the case, his guilty plea, and application of
the sentencing guidelines. He acknowledged in the plea agreement that the Court would
determine the sentence and the application of the advisory sentencing guidelines, that
the guidelines were advisory and not binding, and that no one could predict with
certainty the outcome of the Court’s consideration of the guidelines. He stated in the
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plea agreement that his guilty plea was not the result of promises apart from those set
forth in the plea agreement. He stated in the plea agreement that there had been no
guarantees or promises from anyone as to the sentence the Court would impose. He had
reviewed all legal aspects and facts of the case with counsel and believed that it was in
his best interest to plead guilty, and he admitted that he committed the offense. (Doc.
506.) When Watson pleaded guilty, the Court cautioned and examined him under oath
about each of the subjects in Rule 11 of the Federal Rules of Criminal Procedure and
determined that the plea was voluntary. (Doc. 535.)
Inmates who challenge their guilty pleas on collateral review must overcome a
“strong presumption of verity” accorded “solemn declarations” made in open court. See
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
They must also overcome the
presumption of regularity and “great weight” accorded court records. See United States
v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (holding that a signed, unambiguous plea
agreement “is accorded great evidentiary weight” when determining whether a plea is
entered voluntarily and knowingly); Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th
Cir. 1986) (holding that court records are “accorded great weight”); Webster v. Estelle,
505 F.2d 926, 929-30 (5th Cir. 1974) (holding that court records “are entitled to a
presumption of regularity”).
Movant has failed to overcome the presumption of regularity and the great
evidentiary weight given to court records.
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See Blackledge, 431 U.S. at 73-74.
As
discussed, the plea documents, including his statements that no one promised him any
benefit other than what was set out in the plea agreement and that no one guaranteed
or promised what the sentence would be, contradict his claim that his plea was
involuntary because counsel promised that he would be eligible for a sentence reduction
or early release under RDAP. See id. Watson has not provided any support for his claim
regarding counsel’s advice about RDAP. “[A]bsent evidence in the record, a court
cannot consider a habeas petitioner’s bald assertions on a critical issue in his pro se
petition, unsupported and unsupportable by anything else contained in the record, to
be of probative evidentiary value.” Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Watson has not shown that his plea was involuntary based on ineffective assistance of
counsel.
Watson also contends that counsel should have objected to the sentence
enhancement for the firearm, because the superseding information did not included any
firearms charge. A defendant is responsible for all relevant conduct in a conspiracy,
which includes “all reasonably foreseeable acts and omissions of others in furtherance
of jointly undertaken criminal activity,” even if charges for that conduct have been
dismissed. See United States v. Espinoza, 697 F. App’x 306 (5th Cir. 2017); United States
v. Lopez, 582 F. App’x 438, 450 (5th Cir. 2014). Watson has not shown that his coconspirators’ possession of a firearm was not relevant conduct. He has not shown that
there was a basis for objecting. He has not shown that he received ineffective assistance
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of counsel.
IV. SENTENCE ENHANCEMENT
Watson contends that the two-point enhancement for a firearm was erroneous.
He waived his right to bring this claim. In the plea agreement, he waived his right to
appeal and to contest the conviction and sentence in any collateral proceeding, including
a § 2255 proceeding, except that he reserved the right (1) to bring a direct appeal of a
sentence exceeding the statutory maximum sentence or an arithmetic error at sentencing,
(2) to challenge the voluntariness of the guilty plea or the appellate waiver, and (3) to
bring a claim of ineffective assistance of counsel. (Doc. 506 at 6.)
Also, a misapplication of a sentencing guideline is not cognizable in a § 2255
motion, because it is not constitutional error and it is alleged error that could have been
raised on appeal. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999).
Watson is not entitled to relief on this claim.
V. CONCLUSION
For the foregoing reasons, the § 2255 motion is DENIED with prejudice.
IT IS SO ORDERED.
Signed this 5th day of March, 2019.
_______________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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