Hayward v. USA
Filing
16
Memorandum Opinion and Order... The court ORDERS that the motion of Wendi Shanta Howard to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. 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. (Ordered by Judge John McBryde on 2/11/2015) (wxc)
V.S. DfS'E~fCT {~)llt{T
NORTHERN DISTRICT OF TEXAS
r---"-F=ILED
IN THE UNITED STATES DISTRICT OUR;
NORTHERN DISTRICT OF TEXAS
~
FORT WORTH DIVISION
I FEB I 12015
I
CLERK, u.s. DISTRICT COURT
_____
BY----~------~l}tpmy
UNITED STATES OF AMERICA
§
§
§
§
§
§
vs.
WENDI SHANTA HAYWARD
NO. 4:14-CV-767-A
(NO. 4:12-CR-077-A)
MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of movant, Wendi Shanta
Hayward, under 28 U.S.C.
sentence.
reply.
§
2255 to vacate, set aside, or correct
The government filed a response, and movant filed
a
Having now considered all of the parties' filings, the
entire record of this case, including the record in movant's
criminal case, and the applicable legal authorities, the court
concludes that the motion should be denied.
I.
Pertinent Background Information
From approximately October 2010 through April of 2011,
movant participated in a scheme whereby one of her codefendants
stole mail from United States Postal Service collection boxes,
then sold envelopes containing checks to movant.
Movant and
another codefendant used information from the stolen checks to
manufacture their own counterfeit checks.
Movant and her
I
I
_.~
codefendant then cashed some of the checks, and used others to
purchase merchandise they later returned for cash.
One of
movant's codefendants was caught on camera stealing mail from a
collection box.
Investigators executed a search warrant at
movant's apartment on April 21, 2011.
Movant and one of her
codefendants were present during the search, where investigators
seized 320 counterfeit checks with a combined face value of over
$141,000, and at least 650 counterfeit checks with a blank amount
payable.
Movant admitted that she cashed at least nine of the
counterfeit checks totaling $300 to $400 per check.
On June 8, 2012, movant pleaded guilty without a plea
agreement to one count of conspiracy to possess stolen mail in
violation of 18 U.S.C.
§
371, and one count of possession of
stolen mail in violation of 18 U.S.C.
§
1708.
On September 21,
2012, the court sentenced movant to a term of imprisonment of
sixty months as to count 1, and sixty months as to count 2, to be
served consecutively to each other for an aggregate term of
imprisonment of 120 months.
Movant's attorney, Catherine
Dunnavant ("Dunnavant"), filed an appeal, and movant filed a pro
se reply brief.
After considering Dunnavant's principal brief
and movant's reply brief, the Fifth Circuit affirmed.
States v. Hayward, 540 F. App'x 379 (5th Cir. 2013).
2
United
II.
Grounds of the Motion
Movant raised the following twelve grounds for relief, the
factual bases of which are described in her memorandum of law and
argument in support of her motion ("Memorandum") .
First, movant
alleged Dunnavant failed to perfect movant's appeal in response
to the Supreme Court's decision in Alleyne v. United States,
u.s.
, 133 s. Ct. 2151 (2013).
Each statute under which
movant was convicted carries a five-year maximum sentence.
Thus,
movant believed by pleading guilty her maximum sentence exposure
was five years, with the sentences running concurrently pursuant
to chapter 5, note 3, of the Sentencing Guidelines.
An
additional twenty-six-level enhancement was applied to movant's
criminal history, thus depriving her of her constitutional right
to due process by increasing the sentence with facts found by the
judge, rather than a jury.
Dunnavant failed to raise this issue
on appeal.
Second, Dunnavant's conduct during sentencing tainted
movant's testimony and prejudiced the outcome.
During the
government's cross-examination of movant at her sentencing
hearing, Dunnavant engaged in conduct that the court interpreted
as counsel attempting to coach movant to change her answer, and
3
admonished Dunnavant that her conduct bordered on contempt.
Movant contends this conduct prejudiced her in the court's eyes.
Third, Dunnavant failed to research applicable authorities
governing the offense and failed to object to the scope of
relevant conduct.
Counsel did not adequately research economic
crimes covered by section 2B1.1 of the Sentencing Guidelines.
The presentence report calculated loss amounts based on evidence
that predated the conspiracy dates of October 2010 through April'
2011, and counsel failed to object.
Counsel did not object that
the loss calculation included blank counterfeit checks and
authentic checks, including some from family,members, and she did
not object to the government's revised calculation of the number
of checks and intended loss.
As part of this claim, movant provided legal information and
case law to Dunnavant on application of the Sentencing Guidelines
regarding downward departures.
that
§
However, Dunnavant told movant
2F1.1 of the Sentencing Guidelines had been deleted, when
in fact it had been combined with
§
2B1.1.
Counsel also failed
to argue that movant did not intend to use all of the blank
checks found in her home.
Rather, some of the checks were found
in various locations in movant's home, and movant did not intend
to use these but planned to dispose of them.
4
Many of these
checks were defective and unusable by movant, but counsel failed
to argue that these checks should not have been included in the
loss calculation.
Fourth, Dunnavant failed to offer the following evidence
that would have provided a clearer picture of the loss amount
intended by movant:
affidavits supporting movant's claim that
non-victims were included in the loss calculation; the inventory
receipt given to movant by the federal authorities who searched
her home; and, a black photo album used by movant to conceal the
actual counterfeit checks she intended to use.
Although counsel
submitted the photo album into evidence, she removed the
contents, thus failing to show the manner in which movant used
the album to conceal counterfeit checks.
Fifth, Dunnavant failed to call expert witnesses to evaluate
movant's mental and emotional health.
Dunnavant failed to
present evidence of movant's post-traumatic stress disorder,
bipolar disorder, Attention Deficit Hyperactivity Disorder
("ADHD"), or obsessive-compulsive disorder, or the ways these
mental illnesses may have affected movant and caused her to
engage in the behaviors leading to her conviction.
In
particular, movant contends that evidence of her mental illnesses
would have explained the hoarding behavior that caused her to
5
maintain possession of the blank checks that she did not intend
to use but that were counted against her for calculating loss.
Sixth, Dunnavant failed to argue that the court violated
United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New
Jersey, 530 U.S. 466 (2000), by adding enhancements to her
sentence based on facts not found by a jury.
Counsel's
interpretation of section 2Bl.l(b) (2) (c) of the Sentencing
Guidelines for victims of stolen mail wrongfully caused movant to
have a six-level enhancement for more than 250 victims.
seventh, Dunnavant failed to raise the issue of sentencing
disparity between movant and other similarly·situated defendants.
Dunnavant never raised the issue of avoiding unwarranted
sentencing disparities among defendants with similar records who
have been found guilty of similar conduct, nor did she raise the
issue of the severity of the sentence.
Counsel should have
argued that movant's sentence was unfair compared to those in the
case of United States v. Brown, 388 F. App•x 455 (5th Cir. 2010)
(per curiam) . 1
Eighth, Dunnavant failed to advise the court of reasons
movant was entitled to a downward departure, and failed to inform
'In her Memorandum movant cites this case as United States v. Ramirez, 388 F. App'x 456.
6
the court of its authority to downward depart from the Sentencing
Guidelines.
Ninth, Dunnavant did not present important mitigating
factors showing that movant's criminal case involved unusual
circumstances and how 18 U.S.C.
would shape the outcome.
§
3553(A) (2) and 18 U.S.C.
§
3661
Counsel failed to inform the court of
certain factors that the court could have
us~d
to give movant a
lower sentence, such as her diagnoses of bipolar disorder and
ADHD, movant's voluntary participation in rehabilitation prior to
being charged, and issues pertaining to movant's family.
Tenth, Dunnavant misinterpreted the United States Sentencing
Guidelines's application note for the number of victims and
wrongly advised movant that objecting would be frivolous.
Counsel failed to challenge the misapplication of Section 2B1.1
Cmt. App. Note 4(C) (ii) (I) of the Sentencing Guidelines, giving
movant a six-level increase for number of victims.
Here,
Dunnavant failed to research the proper statutes and rules for
victims involving possession of stolen mail, causing prejudice to
movant, contrary to United States v. Moore, 733 F.3d 161 (5th
Cir. 2013).
Eleventh, Dunnavant failed to object to the evidence used to
calculate the loss attributed to movant.
7
Counsel's argument
concerning the intended loss calculation was ineffective.
Counsel should have moved to suppress or remove additional checks
that were incomplete or outside the conspiracy.
Twelfth, Dunnavant denied movant the opportunity to
participate in determining the issues for appeal.
Counsel
wrongly argued the denial of acceptance of responsibility, gave
inconsistent legal advice, and failed to provide to the court a
photograph of a non-operational handgun used by movant in a work
of art.
III.
Treatment of
§
2255
After conviction and exhaustion 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) {en bane) .
A defendant can challenge his conviction or
sentence after it is presumed final only on issues of
constitutional or jurisdictional magnitude 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.
Shaid, 937 F.2d at 232.
Section 2255
does not offer recourse to all who suffer trial errors, but is
8
reserved for transgressions of constitutional rights and other
narrow injuries that could not have been raised on direct appeal
but, if condoned, would result in a complete miscarriage of
justice.
United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.
Unit A Sept. 21, 1981).
IV.
None of the Grounds Has Merit
A.
Legal Standards Applicable to Claims of Ineffective
Assistance of Counsel
To prevail on an ineffective assistance of counsel claim,
movant must show that (1) counsel's performance fell below an
objective standard of reasonableness and (2) 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); See also
Missouri v. Frye, 566 U.S.
, 132 S. Ct. 1399, 1409-11 (2012).
"[A) court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies."
Strickland,
466 U.S. at 697; see also United States v. Stewart, 207 F.3d 750,
751 (5th Cir. 2000).
"The likelihood of a different result must
be substantial, not just conceivable," Harrington v. Richter, 562
9
U.S. 86, 131 S. Ct. 770, 792 (2011), and a movant must prove that
counsel's errors "so undermined the proper
f~nctioning
of the
adversarial process that the trial cannot be relied on as having
produced a just result."
S. Ct. 1388, 1403 (2011)
Cullen v. Pinholster, 563 U.S.
' 131
(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.
Strickland, 466 U.S. at 689.
Here, movant is entitled to no relief based on the alleged
ineffective assistance of counsel because she has failed to meet
the standard set forth by Strickland.'
B.
Ground Two'
Despite movant's arguments to the contrary, nothing in the
record supports her contention that Dunnavant's conduct during
movant's cross-examination by the government prejudiced the
outcome of the case.
The court strongly disapproved of
Dunnavant's conduct as an attempt to have movant change her
answer to the government's question, and cautioned that such
2
The government in its response has grouped certain grounds of the motion that pertain to similar
subject matter. For efficiency and to avoid redundancy, the court also grouped a number of the grounds
together, although the court's groupings differ slightly from the government's.
'Grounds one and twelve both allege ineffective assistance of counsel on appeal. The court will
consider those grounds together last, and will begin its analysis of movant's motion with ground two.
10
conduct bordered on contempt.
Sentencing Tr. at 41.
The court
'
also dismissed Dunnavant's attempted explanation of her conduct
as her attempt to inform movant how she should answer the
question.
Id. at 42.
However, nothing in the record indicates
that the court considered Dunnavant's conduct in imposing the
sentence on movant.
Instead, the court focused on movant's
substantial criminal history.
Movant has failed to show that
without the single instance of misconduct by Dunnavant, there was
a "substantial, not just conceivable,
result."
Richter, 562 U.S. at
likeli~ood
, 131
of a different
s. ct. at 791 (quotation
marks and citation omitted).
C.
Grounds Three, Eight, and Eleven
These three grounds for relief include allegations that
Dunnavant misunderstood the Sentencing Guidelines and failed
effectively to challenge the loss calculation or urge a downward
departure.
To the extent these grounds complain that Dunnavant
failed to object to the loss amount, such a claim is contradicted
by the record.
The transcript of movant's sentencing hearing
shows that the issue of which checks should be included in, or
excluded from, the loss amount was heavily litigated.
movant's sentencing hearing, Dunnavant persisted in her
objections concerning relevant conduct and loss amount,
11
At
questioned movant at length during the hearing regarding the
numerous checks found in movant's home following execution of the
search warrant, and redirected movant's testimony following
cross-examination by the government.
Dunnavant then also
the objection in her argument to the court.
reurge~
Movant has
identified nothing further that Dunnavant could have done to
object to the loss amount.
That Dunnavant was unsuccessful in
urging the objection does not constitute ineffective assistance.
See Youngblood v. Maggio, 696 F.2d 407, 410 (5th Cir. 1983)
(per
curiam).
As to movant's claim that Dunnavant fai+ed to object to the
loss calculation to the extent it included conduct that predated
the conspiracy period, the court informed movant at her
rearraignment that it was not bound by factual stipulations
between the defendant and the government, but that in imposing a
sentence the court could "disregard stipulated facts or take into
account facts not mentioned in the stipulated facts."
Rearraignment Tr. at 12-13.
The court also advised movant that
it "rel[ied] very heavily" on the presentence report in
determining the sentence to impose.
Id. at 14.
that she understood the court's admonitions.
Movant testified
The presentence
report expanded the applicable dates of the conspiracy to 2006,
12
and the court expressly indicated at sentencing that it adopted
the findings of the presentence report in considering movant's
sentence.
Not only does movant fail to indicate what objection
she contends Dunnavant should have made, any objection would have
been futile.
Counsel is not ineffective for failing to raise a
meritless objection.
United States v. Kimler, 167 F.3d 889, 893
(5th Cir. 1999).
Movant's contentions that Dunnavant failed to adequately
research applicable law are nothing more than conclusory
assertions.
Much of this portion of the motion appears focused
on movant's claim that Dunnavant should have moved for a downward
departure.
Dunnavant in fact filed a motion for a downward
variance and a corresponding sentencing memorandum, urging the
court to impose a sentence significantly below the guideline
range.
However, because of movant's "almost'unbelievable
criminal histor[y] ,"Sentencing Tr. at 58, the court declined to
impose a sentence below the guideline range.
Movant does not in
her motion explain what Dunnavant should have done differently,
or what she should have argued in a motion for downward departure
that was not raised in the motion for downward variance and
sentencing memorandum, or what otherwise could have been done by
Dunnavant, that would have changed the outcome of the proceeding,
13
an issue which movant bears the burden to establish.
United
States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005).
Movant
cannot establish ineffective assistance of counsel "merely by
stating [her] conclusion."
Id.
Movant's contention concerning §2F1.1 of the Sentencing
Guidelines is similarly deficient.
The 2011 Sentencing
Guidelines used in movant's criminal case indicate that § 2F1.1
was "deleted by consolidation with
2001."
§
2B1.1 effective November 1,
U.S. Sentencing Guidelines Manual § 2F1.1.
Movant's
complaint was that§ 2B1.1, Application Note 19(c), gives an
example of when an offense level substantially overstates the
seriousness of the offense.
However, although movant maintains
that this guideline "is important to the case for many reasons,",
Mem. at IX, such a statement is merely a conclusion absent any
facts or supporting evidence.
Such is insufficient to sustain a
claim of ineffective assistance of counsel.
Holmes, 406 F.3d at
361.
D.
Ground Four
Movant failed to show how she was prejudiced by Dunnavant's
alleged failure to offer certain items into evidence.
Attached
as exhibits to the Memorandum are three affidavits: one each from
Andre Lane ("Lane"), Charlotte Johnson ("Johnson"), and Taurence
14
Williams ("Williams").
Each of these affidavits states that the
affiant temporarily resided with movant for a specified period of
time, and that when he or she left movant's residence, he or she
"may have inadvertently left behind some property, including
checks for my personal checking account."
Mem., Ex. 2.
Dunnavant presented this evidence to the court in the form of her
objections to the presentence report, where she included this
same information on a chart.
The court, in an order signed
September 17, 2012, informed movant and Dunnavant that it had
tentatively concluded the objections were without merit.
Dunnavant was not ineffective for failing to make what would
likely have been a meritless objection.
Kimler, 167 F.3d at 893.
Additionally, the chart indicated that Lane may have left
three checks, while Johnson and Williams each may have left one
check in movant's residence.
Movant has not explained how, even
if Dunnavant had presented the affidavits, deducting four checks
from the hundreds used in calculating the loss amount would have.
changed the outcome of the proceeding.
As to the inventory receipt movant contends would have shown
the various locations where the checks were found, movant
testified at length to those facts,· so introducing the inventory'
sheet would have been cumulative.
15
Movant also alleged that
Dunnavant tampered with the contents of the black photo album
prior to introducing it into evidence.
However, movant testified
that she personally removed and destroyed the counterfeit checks
she had hidden in the book at the time authorities searched her
home because she knew she "was in hot water."
28.
Sentencing Tr. at
Although Dunnavant removed "some pictures," id., from the
book prior to introducing it into testimony, Dunnavant elicited
testimony from movant about the purpose of the book.
Movant has
failed to explain how the outcome would have been different had
Dunnavant not removed the pictures from the book.
E.
Grounds Five and Nine
Claims of ineffective assistance of counsel based on failure
to call witnesses, including expert witnesses, are disfavored due
to the speculative nature of such claims.
F. 3d 527, 538 (5th Cir. 2009).
Day v. Quarterman, 566
"Thus, to prevail on an
ineffective assistance claim based on counsel's failure to call a
witness, the petitioner must name the witness, demonstrate that
the witness was available to testify and would have done so, set
out the content of the witness's proposed testimony, and show
that the testimony would have been favorable to a particular
defense."
Id.
As none of the foregoing is alleged in the
motion, movant cannot show she was prejudiced by any failure to
16
call mental health experts as witnesses.
Additionally, the record shows that the court was aware of
movant's mental health issues.
Movant at her rearraignment
hearing informed the court that she was under the care of a
physician for "mental issues for PTS and bipolar disorder," that.
she was also in a drug rehabilitation program, and she was taking
Methadone and intermittently taking Prozac.
22-24.
Rearraignment Tr. at
However, she informed the court that none of these issues
interfered with her ability to made good decisions, think, or
reason.
The presentence report also discussed movant's mental
health issues in detail.
Dunnavant's sentencing memorandum
relied on movant's mental health issues as part of her argument
for a below-guidelines sentence, and counsel elicited testimony
at sentencing concerning all of movant's mental health issues and
the effect of those issues on movant's conduct.
In short, in
contrast to movant's contentions, the record'shows that Dunnavant
at every opportunity argued that movant's mental health issues
should be taken into account in imposing movant's sentence.
Movant has failed to show anything further that Dunnavant could
have done that would have changed the outcome of the proceeding.
17
F.
Grounds Six and Ten
These grounds lack merit.
The factual resume stated on its
face that movant faced up to five years' imprisonment as to each
count, for a maximum term of imprisonment of ten years.
The
court at movant's rearraignment hearing confirmed that she
understood the maximum penalty she faced by pleading guilty.
The Supreme Court in United States v. Booker, 543 U.S. 220, 259
(2005), rendered the United States Sentencing Guidelines
advisory, rather than mandatory.
Nothing in Booker, however,
restricted the court's authority in 18 U.S.C.
consecutive sentences after considering the
18 U.S.C.
§
3553(a).
§
3584 to impose
~actors
set forth in
Here, the court expressly stated on the
record that it considered all of the factors in
§
3553 in
determining the sentence to impose, which included ordering the
terms of imprisonment as to each count to run consecutively.
Accordingly, Dunnavant could have raised no objection to the
consecutive terms of imprisonment.
Counsel is not ineffective
for failing to make a meritless objection.
Kimler, 167 F.3d 889,
893 (5th Cir. 1999).
Nor does movant's reliance on United States v. Moore, 733
F.3d 161 (5th Cir. 2013), afford her any relief.
The Moore
ruling was not handed down until more than a year after movant
18
was sentenced.
There is no reason to think that a rational
attorney at the time of movant's sentencing would have
anticipated that there would be such a ruling, one that was so
unusual that the dissenting circuit judge commented that:
The majority opinion's construction of the
Guidelines leads to patently absurd results.
Id. at 168 (Owen, Cir. J., dissenting) . 4
Additionally, to the extent movant is attempting to
challenge the court's application of the Sentencing Guidelines in
her case, such a claim is not cognizable in a motion pursuant to
§ 2255.
1999)
United States v. Williamson, 183 F.3d 458, 462 (5th Cir.
("Misapplications of the Sentencing Guidelines .
. are
not cognizable in§ 2255 motions.").
G.
Ground Seven
Congress intended that application of the Sentencing
Guidelines would cause certain sentencing disparities, and "a
sentencing disparity intended by Congress is'not unwarranted."
United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006)
(citation omitted).
Hence, "[o]nly unwarranted disparities are
'Although the Fifth Circuit in United States v. Moore, 733 F.3d 161 (5th Cir. 2013), decided the·
same issue that movant appears to be attempting to raise regarding United States Sentencing Guideline
2B l.l(b )(2)(C) and cmt. n.4(C)(i) & (ii)(I), the court finds Moore to be inapplicable to the instant action.
Moore was decided on direct appeal of the defendant's criminal case, whereas here, movant raised the
issue in a collateral proceeding pursuant to 28 U.S.C. § 2255.
19
among the§ 3553(a) sentencing factors."
Id.
Further,
unwarranted disparities are to be avoided oniy as between
defendants with "similar records who have been found guilty of
similar conduct."
(5th Cir. 2007).
United States v. Willingham, 497 F.3d 541, 545
Concern about unwarranted sentencing
disparities is minimal when the court imposes a sentence within
the guidelines range.
Id.
Here, movant's argument fails because the sentence imposed
was within the guideline range, minimizing any concern regarding
sentencing disparity.
Additionally, movant has provided no
authority to show that the court may consider a single case as a
comparator to show that movant's sentence resulted in an
unwarranted disparity.
Nor is there anything in United States v.
Brown, 388 F. App'x 455 (5th Cir. 2010)
(per curiam), the case on
which movant relies, to show that the defendants in that case had
criminal histories similar to movant's.
The court considered
movant's "unbelievable criminal histor[y)" in imposing its
sentence, and movant has failed to introduce anything to show how
the defendants' histories in Brown compared with hers.
H.
Grounds One and Twelve
Both of these grounds allege that Dunnavant rendered
ineffective assistance on appeal.
20
Claims of ineffective
assistance of counsel on appeal are judged by the same standards
as are applied to such claims in the trial court.
183 F.3d at 462.
Williamson,
Movant has failed to meet her burden as to
either of the grounds raised.
First, movant's reliance on Alleyne v. United States, ____
u.s. ____ , 133 S. Ct. 2151 (2013), is misplaced.
Presumably,
movant is attempting to allege that Dunnavant failed to object
that the court violated the requirement of Alleyne that any fact
that increases the mandatory minimum punishment must be submitted
to a jury or charged in the indictment.
Movant, however, was not
subject to a mandatory minimum sentence, but rather to a
guideline range of sixty months as to each count, up to a maximum
of 120 months, and the court in its discretion imposed a sentence
within, though at the top of, that range.
M?vant has alleged
nothing as would show Alleyne in any way applied to her case.
As to the second ground related to her appeal, counsel is
not required to press every non-frivolous argument which a
criminal defendant wants raised on appeal if-the attorney, "as a
matter of professional judgment, decides not to present those
points."
Jones v. Barnes, 463 U.S. 745, 751 (1983).
Instead,
counsel is required only to raise "[s]olid, meritorious arguments
based on directly controlling precedent."
21
United States v.
Phillips, 210 F. 3d 345, 348
(5th Cir. 2000)
(citations omitted).
Movant has failed to explain exactly what she contends Dunnavant
should have argued on appeal or how it would'have changed the
outcome of the appeal, as required to show prejudice.
Additionally, Dunnavant filed a comprehensive brief on
movant's behalf, and movant also filed her own prose brief,
which the Fifth Circuit also considered.
App'x at 379.
See Hayward, 540 F.
Movant has failed to establish that but for any
errors on Dunnavant's part the outcome of the appeal would have
been different.
V.
Order
Therefore,
The court ORDERS that the motion of Wendi Shanta Howard 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,
22
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED February 11, 2015.
23
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