Kelly v. USA

Filing 8

Memorandum Opinion and Order: The court ORDERS that the motion of Jessie Kelly to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is denied. The court further ORDERS that movant's motion to appoint counsel is denied. The court further ORDERS that a certificate of appealability is denied. (Ordered by Judge John McBryde on 6/10/2013) (dnw)

U.S. DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FILED

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. CLERK, U.S. DISTRICT COURI

IN THE UNITED STATES DISTRIC'CC)llR'
NORTHERN DISTRICT OF TE:X~S:
FORT WORTH DIVISION"
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By_ _~

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Depury

UNITED STATES OF AMERICA

§
§

vs.

§

JESSIE KELLY

§
§

NO. 4:13-CV-220-A
(NO. 4:10-CR-140-A-1)

§

MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Jessie Kelly
("movant") pursuant to 28 U.S.C.
correct sentence.

§

2255 to vacate, set aside, or

Having reviewed the motion, the record, the

government's response, and applicable legal authorities, the
court concludes that the motion lacks merit and should be denied.
1.

Background
Movant pleaded guilty, pursuant to a plea agreement, to
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C.

§

924(c).

The united States

Sentencing Guidelines recommended a sentence between 262 and 327
months imprisonment; however, the court took note of movant's
extensive and violent criminal history, and determined that a
sentence above the guideline range was necessary, and that movant
have "a very lengthy sentence of imprisonment that would keep him

out of society for a sufficient length of time to cause him no
longer to have a desire to commit a crime."
14-19.

Sentencing Tr. at

The court then sentenced movant to 420 months

imprisonment.

Movant's conviction and sentence were affirmed on

appeal, United States v. Kelly, 455 F. App'x 511 (5th Cir. 2011),
and certiorari review was denied, Kelly v. united States, 132 S.
ct. 2114

(Apr. 30, 2012).

Movant timely filed his motion under §

2255 on March 18, 2013.
II.
Grounds of the Motion
Movant identified two grounds for relief in his motion:

(1)

counsel was ineffective for failing to argue on appeal that
movant was illegally convicted for possession of a firearm in
furtherance of drug trafficking, without being convicted of the
underlying offense of drug trafficking; and (2) that 18 U.S.C. §
924(c) violates the Tenth Amendment because it impermissibly
interferes with the sovereign interests of the State of Texas.
Mot. at 7.
III.
Analysis
A.

Legal Standard for 28 U.S.C.

§

2255

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
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fairly and finally convicted.

united States v. Frady, 456 U.S.

152, 164 (1982) i united States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992).

A defendant

can challenge her conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude
only, and may not raise an issue for the first time on collateral
review without showing both "cause" for her procedural default
and "actual prejudice" resulting from the errors.

Shaid, 937

F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial
errors.

It is reserved for transgressions of constitutional

rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.

united States v. Capua, 656 F.2d 1033,

1037 (5th Cir. unit A Sept. 1981).

In other words, a writ of

habeas corpus will not be allowed to do service for an appeal.
Davis v. united States, 417 U.S. 333, 345 (1974).

Further, if

issues "are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
collateral attack."
(5th Cir.' 1979)

Moore v. united States, 598 F.2d 439, 441

(citing Buckelew v. united States, 575 F.2d SIS,

517-18 (5th Cir. 1978)).

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B.

Ineffective Assistance of Counsel Claim
To prevail on an ineffective assistance of counsel claim,

movant must show (1) that counsel's performance fell below an
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984).

Both prongs

of the strickland test must be met to demonstrate ineffective
assistance.

Id. at 697.

Further," [a] court need not address

both components of an ineffective assistance of counsel claim if
the movant makes an insufficient showing on one."
v. stewart, 207 F.3d 750, 751 (5th Cir. 2000).

united states

"~he likelihood

of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. Ct. 770, 792

(2011), and a movant

must prove that counsel's errors "so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."
Pinholster, 131 S. Ct. 1388, 1403
U.S. at 686)).

(2011)

Cullen v.

(quoting Strickland, 466

JUdicial scrutiny of this type of claim must be

highly deferential and the defendant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance.
U.S. at 689.
4

Strickland, 466

Movant argues that his attorneys were deficient because he
informed them that the crime for which he was convicted,
possession of a firearm in furtherance of drug trafficking,
"cannot stand without an underlying offense of drug trafficking
or violent
Mot. at 6.

crim~,"

but they did not raise that issue on appeal.

However, as the government points out, it is well-

settled that a conviction under

§

924(c) does not require an

underlying drug trafficking conviction, as it the "fact of the
offense, and not a conviction, that is needed to establish the
required predicate."

united States v. Munoz-Fabela, 896 F.2d

908, 911 (5th Cir. 1990) i united states v. wilson, 884 F.2d 174
(5th Cir. 1989).
Movant signed a factual resume, in which it was stipulated
that he possessed large quantities of marihuana for sale and
distribution for others, and that he possessed four firearms "to
protect his family, his marihuana and proceeds of marihuana
sales."

Factual Resume, at 2-3.

The factual resume also stated

the elements of the offense: that to be convicted under

§

924(c),

the government would have to prove that movant (1) committed the
crime of possession with intent to distribute marihuana as
alleged in Count 1 of the indictment, and (2) movant knowingly
possessed a firearm during and in relation to the commission of
possession with intent to distribute marihuana.
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At movant's

rearraignment hearing, the court reviewed the elements of the
offense and the stipulated facts contained in the factual resume
with movant, and movant admitted under oath that all of the facts
were true, and that he was guilty of elements of the offense
outlined in the factual resume.

Rearraignment Tr. at 17-18.

Thus, movant admitted to the predicate offense necessary to
sustain a conviction under

§

924(c), any argument that the

conviction was illegal would have been frivolous, and movant's
attorneys could not have been deficient for failing to raise a
frivolous issue on appeal.
585 n.6

(5th Cir. 1990)

See Smith v. Puckett, 907 F.2d 581,

("Counsel is not deficient for, and

prejudice does not issue from,

failure to raise a legally

meritless claim.").
C.

Claim that

§

924(c) Violates the Tenth Amendment

Movant contends that

§

924(c) interferes with the

sovereignty of the State of Texas because Texas "has a statute to
prosecute the case" and that movant "had not committed a crime
against the united States since possession of a firearm in
furtherance of a drug trafficking with the State of Texas did not
victimize the United States in anyway."

Mot. at 5, 7.

However,

movant did not raise this argument on direct appeal, and is
procedurally barred from raising it on collateral review, as he
does not demonstrate the requisite cause and prejudice to excuse
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his procedural default.

Furthermore, movant's claim is

meritless.
A movant "who raises a constitutional or jurisdictional
issue for the first time on collateral review must show both
cause for his procedural default and actual prejudice due to any
such errors."

united states v. PIacente, 81 F.3d 555, 558 (5th

Cir. 1996); Murray v. Carrier, 477 U.S. 478, 493

(1986).

"Cause

. must be something external to [movant] that cannot fairly
be attributable to him," and "ordinarily requires a showing of
some external impediment preventing counsel from constructing or
raising the claim."
(1991).

Coleman v. Thompson, 501 U.S. 722, 753

"Prejudice" requires movant to show that "not merely

that the errors at his trial created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions."

u.s. v. Frady, 456 U.S. 152, 170 (1982).

First, movant does not explain why he failed to raise this
issue on appeal, and does not identify any impediments that could
have prevented him from raising the issue.

Second, even if

movant had demonstrated cause, he cannot show prejudice because
there is no merit to his claim.
Section 924(c) governs the possession and use of firearms in
connection with illegal drug activities governed by federal law,
7

and it is well-settled that "Congress can regulate purely
intrastate activity that is not itself 'commercial' in that it is
not produced for sale, if it concludes that failure to regulate
that class of activity would undercut the regulation of the
interstate market in that commodity [drugs]."
545 U.S. 1, 18 (2005).
§

801 et seq.,

Gonzales v. Raich,

The Controlled Substances Act, 21 U.S.C.

"regulates the production, distribution, and

consumption of commodities for which there is an established, and
lucrative, interstate market," rd. at 26.

The Fifth Circuit has

held that offenses committed in furtherance of drug trafficking
are properly regulated under federal law.

See united States v.

Britt, 112 F. App'x 352, 356 (5th Cir. 2004)

("Murder relating to

or in furtherance of such properly regulated activity [drug
trafficking] can clearly be proscribed by the federal
government."); United States v. Lopez, 2 F.3d 1342, 1367 (5th
Cir. 1993)

(noting that "all drug trafficking, intrastate as well

as interstate, has been held properly subject to federal
regulation on the basis of detailed Congressional findings that
such was necessary to regulate interstate trafficking").

Like

the laws at issue in these case, section 924(c) proscribes
conduct in furtherance of drug trafficking under the Controlled
Substances Act, and does not violate the Tenth Amendment.

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IV.
Order
Therefore,
The court ORDERS that the motion of Jessie Kelly to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be,
and is hereby, denied.
The court further ORDERS that movant's motion to appoint
counsel, be, is are hereby, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§

2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED June 10, 2013.

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