Rodden v. USA

Filing 10

Memorandum Opinion and Order: The court ORDERS that Rodden's motion 28 U.S.C. § 2255 be, and is hereby, denied. (Ordered by Judge John McBryde on 6/12/2013) (mpw)

u.s. DISTRICT couni
NORTHERN DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

UNITED STATES OF AMERICA

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Deputy

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ANTHONY RODDEN

J-2 2013

CLERK, U.S. DISTRICT COURI'
By ____~~____---

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VS.

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NO. 4:13-CV-325-A
(NO. 4:11-CR-034-A)

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MEMORANDUM OPINION
AND
ORDER
After having considered the motion filed by Anthony Rodden
("Rodden") on April 22, 2013, under 28 U.S.C.

§

2255 to vacate,

set aside, or correct sentence by a person in federal custody,
the memorandum filed by Rodden in support of his motion, the
government's response to the motion, pertinent parts of the
record of the above-captioned criminal case, and pertinent legal
authorities, the court has concluded that such motion should be
denied.
1.

Background
Rodden pleaded guilty to violation of 21 U.S.C.

§§

841(a) (1)

and (b) (1) (C) for trafficking in methamphetamine that had been
brought into the united States from Mexico.
a term of imprisonment of 235 months.

He was sentenced to

His sentence was affirmed

in his appeal to the Fifth Circuit, united States v. Rodden, 481
Fed. App'x 985 (5th Cir. 2012), and the Fifth Circuit denied his

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petition for rehearing.
His motion under

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Rodden did not seek certiorari review.

2255 was timely.

Rodden raised three grounds in his

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2255 motion, first,

that he was provided ineffective assistance of counsel in
negotiating his guilty plea, second, that he was provided
ineffective assistance of counsel at sentencing, and, third, that
he was provided ineffective assistance of counsel on appeal.

His

trial and appellate counsel was Gary D. Smart ("Smart").
Rodden recited in his motion as facts supporting his claim
of ineffective assistance of counsel in negotiating his guilty
plea the following:
Movant asserts that ineffective assistance of counsel
renders his guilty plea involuntary because his
attorney misinformed Movant of the plea's consequences,
and failed to seek or explain other options. Had
Movant understood the consequences of the open guilty
plea, he would not have plead guilty and would have
proceeded to trial.
Mot. at 4.

He alleged as facts supporting his claim of

ineffective assistance of counsel at sentencing the following:
Counsel's performance was deficient at sentencing where
counsel failed to object to: a) drug quantityconversion errors; b) weapon enhancement; c) Movant
provided false document; d) Movant induced false
testimony - creating a conflict of interest; e)
obstruction of justice enhancement, and; f) denial of
acceptance of responsibility reduction. Had counsel
objected and presented arguments in support, Movant's
sentence would have been much less harsh. Counsel also
raised frivolous objections foreclosed by Fifth Circuit

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precedent and presented testimony with knowledge of the
Court's tentative finding of falsity.
Id. at 5.

And, he alleged as facts supporting his claim of

ineffective assistance on appeal the following:
Counsel labored on appeal under an actual conflict of
interest; failed to raise meritorious issues; raised
issues under plain error review and a frivolous
foreclosed issue, and; filed a frivolous petition for
rehearing.
Id. at 7.

In each instance, Rodden incorporated by reference his

memorandum in support of the motion.
II.
Applicable Standards
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
fairly and finally convicted.

united States v. Frady, 456 U.S.

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

A defendant

can challenge his 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 his procedural default
and "actual prejudice" resulting from the errors.
F.2d at 232.

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Shaid, 937

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)}.
B.

Ineffective Assistance of Counsel Claims
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 his 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
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the movant makes an insufficient showing on one."
v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000).

united States

~The

likelihood

of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. Ct. 770, 792 (2011), and a movant
~so

must prove that counsel's errors

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 (2011)
u.s. at 686).

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.

strickland, 466

u.s. at 689.
III.
Analysis
A.

Rodden's Claim of Ineffective Assistance of Counsel in
Negotiating His Guilty Plea is without Merit
The record of the rearraignment hearing at which Rodden

entered his guilty plea could not make any plainer that Rodden
knew exactly what he was doing when he entered his guilty plea,
that he was fully informed of the consequences of entering the
guilty plea, and that he was not motivated to enter his guilty
plea by any misinformation provided to him by his counselor by

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his counsel's failure to fully advise him of the consequences of
entering the plea.

The government summarizes at pages 13-16 of

its response to the motion pertinent parts of the record of the
rearraignment hearing.

When the entire record is considered, the

conclusion is inescapable that Rodden's claim of ineffective
assistance of counsel in negotiating the guilty plea is without
the slightest merit.

Not only does Rodden fail to persuade the

court that his counsel engaged in any inappropriate conduct
related to the entry of the guilty plea, he provides nothing that
would suggest to the court that Rodden would have refrained from
entering a guilty plea if the conduct of his attorney had been
different from what it was.
B.

Rodden's Claim of Ineffective Assistance of Counsel at
Sentencing is without Merit
The only area of potential concern related to the conduct of

Smart in the sentencing process has to do with the probation
officer's error in the calculation of the quantity of drugs for
which Rodden should be accountable at sentencing.

This error is

discussed at pages 17-19 of the government's response.

According

to the government, the error had the effect of increasing
Rodden's advisory guideline imprisonment range from 188 to 235
months to 235-240 months.

However, Rodden has failed to persuade

the court that Smart's failure to detect, and complain of, that

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error caused his performance to fall below an objective standard
of reasonableness.

Moreover, the court is not persuaded that

there is a reasonable probability that Rodden would have received
a different sentence of imprisonment if there had not been an
error in the advisory guideline imprisonment calculation.

The

record of the sentencing hearing makes clear that the court was
guided by the factors set forth in 18 U.S.C.

§

3553(a} in

determining an appropriate sentence, and that the consideration
of those factors led to the 235-month term of imprisonment.
Sentencing Tr. at 35.
Rodden has presented nothing that would cause the court to
believe that either of the components of an ineffective
assistance of counsel claim has been established as to Smart's
conduct relative to the sentencing process.
C.

Rodden's Claim of Ineffective Assistance of Counsel on
Appeal is without Merit
Similarly, Rodden has failed to persuade the court that

either component of his ineffective assistance of counsel on
appeal claim has been established.

Rodden seems to be of the

view that the mere fact that Smart presented issues to the Fifth
Circuit that were determined to be meritless proves that Smart
was ineffective in his representation of Rodden on appeal.
course, that is not so.

Of

The fact that Smart was unsuccessful in

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Rodden's appeal does not establish that he was ineffective or
that the unsuccessful issues he raised were nonsensical or
frivolous.
1983).

See Youngblood v. Maggio, 696 F.2d 407, 410 (5th Cir.

While Rodden complains of Smart's conduct in handling his

appeal, he never identifies what Smart should have done
differently that would have convinced the Fifth Circuit that this
court committed a reversible error.

Rodden does not make any

showing that the outcome of his appeal would have been different
from what it was if Smart had conducted himself in the
representation of Rodden on the appeal in a different manner.
D.

Conclusion
Rodden has presented nothing in his motion to persuade the

court that he has suffered from any transgression of his
constitutional right to be provided effective assistance of
counsel at all stages of his criminal proceeding.

Nothing of

which Rodden complains suggests that Rodden suffered a
miscarriage of justice, complete or otherwise.

Rather, Rodden

appears to be seeking another bite at the apple by using the
habeas process as a vehicle for another appeal.
For all the reasons stated above, the court has concluded
that Rodden's motion should be denied.

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IV.
Order
Therefore,
The court ORDERS that Rodden's motion

28 U.S.C.

§

2255

be, and is hereby, denied.
SIGNED June 12, 2013.

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7u0HN McBRYDE
United States Jstrict Judge

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