Opiyo v. USA
Filing
7
MEMORANDUM OPINION and ORDER... the motion of Frederick Odhiambo Opiyo to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255 be, and is hereby, denied... 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. See Order for further specifics. (Ordered by Judge John McBryde on 8/5/2013) (krg)
U.S. DISTRICT COURT
NOR:HERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRIC COUR~
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION
FILED
-------,
AUG -5 2013
CLERK, U.S. DISTRICT COURT
. : By _ _..,.__,_ _ __
UNITED STATES OF AMERICA
Deputy
§
§
vs.
§
§
FREDERICK ODHIAMBO OPIYO
NO. 4:13-CV-458-A
(NO. 4:10-CR-181-A)
§
§
MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Frederick Odhiambo
Opiyo ("movant") pursuant to 28 U.S.C.
aside, or correct sentence.
§
2255 to vacate, set
Having reviewed the motion, the
record, the government's response, movant's reply, and applicable
legal authorities, the court concludes that the motion lacks
merit and should be denied.
I.
Background
Movant was convicted of possessing false identification
documents in violation of 18 U.s. c.
§
1028 (a) (3), and was
sentenced on January 20, 2009, in the Eastern District of
Michigan to 21 months imprisonment and a two-year term of
supervised release.
Movant began his supervised release on
November 20, 2009, and transfer jurisdiction over movant's
supervised release was accepted by this court on October 14,
2010.
Movant violated various terms and conditions of his
supervised release, which resulted in this court's revocation of
the term of supervised release and a sentence of 24 months
imprisonment, to run consecutive to movant's sentence in Case No.
4:10-CR-168-A.
Movant appealed the judgment of revocation and
sentence, but his attorney moved for leave to withdraw under
Anders v. California, 386 U.S. 738
(1967), contending that there
were no nonfrivolous issues for appellate review.
v. Opiyo, 471 F. App'x 300 (5th Cir. 2012).
United States
The Fifth Circuit
noted that the record was insufficiently developed to allow
consideration of movant's ineffective assistance of counsel
claims, but agreed with movant's attorney that the substantive
issues raised by movant lacked merit and dismissed the appeal.
Id.
Certiorari review was denied on October 9, 2012.
United States, 133 S. Ct. 461 (2012).
Opiyo v.
Movant timely filed his
§
2255 motion on June 5, 2013.
II.
Grounds of the Motion
Movant identified three grounds for relief in his motion:
(1) his revocation and resulting sentence were obtained by the
use of evidence obtained through an unreasonable search and
seizure;
(2) his revocation and resulting sentence were obtained
2
by the failure of prosecutors to disclose evidence favorable to
him; and (3) he was denied effective assistance of counsel during
revocation proceedings.
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
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 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).
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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 515,
517-18 (5th Cir. 1978)).
B.
None of Movant's Claims Has Merit
1.
Movant's Search and Seizure Claim
Movant contends that the revocation of his supervised
release was obtained in part through an unconstitutional search
of his apartment; however, movant raised this issue in his direct
appeal, and the Fifth Circuit determined that his argument was
frivolous.
United States v. Opiyo, No. 11-10278, 471 F. App'x at
300-01; Appellant's ProSe Response, at 5, 12.
claim is not cognizable in movant's
§
Therefore, this
2255 proceedings, and
should be dismissed.
2.
Movant's Claim that the Government Suppressed or
Withheld Evidence
Movant next contends that the government "knowingly failed
to disclose perjured testimony from [its] key witnesses" and
suppressed material evidence favorable to him.
Reply at 7.
Like
movant's above-described unconstitutional search claim, movant
4
raised this claim on direct appeal, and the Fifth Circuit
determined that the claim was frivolous.
Opiyo, No. 11-10278,
471 F. App'x at 300-01; Appellant's ProSe Response, at 5, 8-11.
Therefore, this claim also is not cognizable in movant's
§
2255
proceedings, and should be dismissed.
3.
Ineffective Assistance of Counsel
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
"The 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
5
(2011)
Cullen v.
(quoting Strickland, 466
U.S. at 686)).
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.
Strickland, 466
at 689.
Movant first contends that his attorney failed to cross-
examine the postal inspector, who was a witness at movant's
revocation hearing, about the fact that the search of movant's
apartment was conducted pursuant to movant's consent, not
pursuant to a search warrant as the witness testified.
Movant
also faults his attorney for failing to ask the witness for a
copy of the search warrant.
However, the erroneous testimony was
cleared up openly in court, as the government conceded that the
search was a consent search and that there was no search warrant;
thus, there is no showing that the outcome of the proceedings
would have been different had movant's attorney questioned the
witness about the search warrant.
Further, this issue had been
dismissed on appeal as frivolous, and an attorney is not
deficient for failing to raise a frivolous issue.
United States
v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995); Smith v. Puckett,
907 F.2d 581, 585 n.6 (5th Cir. 1990)
for,
("Counsel is not deficient
and prejudice does not issue from,
legally
meritl~ss
claim.")
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failure to raise a
Movant next faults his attorney for failing to move to
suppress evidence obtained through the search of movant's
apartment.
However, the exclusionary rule generally does not
apply to revocation proceedings absent a showing of police
harassment, United States v. Montez, 952 F.2d 854, 857-59 (5th
Cir. 1992), this issue was dismissed on appeal as frivolous, and
movant's attorney is, again, not deficient for failing to raise a
meritless issue.
Movant's third ineffective assistance of counsel claim is
that his attorney "failed to put on a defense" after the
government corrected the witness's testimony regarding a search
warrant, but fails to explain what his attorney should have
presented or argued in such defense, and again refers to the lack
of a search warrant.
Mot. at 10.
Movant's conclusory
allegations are insufficient to show that counsel was deficient.
See Miller v. Johnson, 200 F.3d 274, 282
(5th Cir. 2000)
("This
Court has made clear that conclusory allegations of ineffective
assistance of counsel do not raise a constitutional issue in a
federal habeas proceeding.")
1008, 1012
(citing Ross v. Estelle, 694 F.2d
(5th Cir. 1983)).
Finally, movant complains that his attorney should have
objected to the government's statement that the search had been
conducted pursuant to movant's consent, because the statement
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contradicted the witness's testimony regarding the search
warrant.
Again, movant fails to show that the objection would
have had any merit, and fails to explain how the outcome of the
proceedings would have been different had such an objection been
made.
Thus, all of movant's claims of ineffective assistance of
counsel are meritless, and should be dismissed.
IV.
Order
Therefore,
The court ORDERS that the motion of Frederick Odhiambo Opiyo
to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§
2255 be, and is hereby, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(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 August 5, 2013.
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