Sanford v. USA
Filing
5
Memorandum Opinion and Order...the motion to vacate under 28 USC 2255 is denied; Certificate of appealability denied. (Ordered by Judge John McBryde on 11/13/2014) (wrb)
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IN THE UNITED STATES DISTRICT OURT 1 NOV I 3 2014
NORTHERN DISTRICT OF TEXA
1----·---- --· ____ j
FORT WORTH DIVISION
CLERK, U.S. DISTRICT CCURT
WILLIAM SANFORD
§
§
§
§
§
§
vs.
UNITED STATES OF AMERICA
BY----~.-c~---,
J)epmy
NO. 4:14-CV-861-A
(NO. 4:12-CR-063-A)
MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of movant, William
Sanford, under 28 U.S.C.
§
2255 to vacate, set aside, or correct
sentence, and a brief in support.
Having considered movant's
motion and brief, the entire record of movant's criminal case,
and the applicable legal authorities, the court concludes that
the motion should be denied.
I.
Pertinent Background
On April 13, 2012, movant pleaded guilty to a single charge
of violating 18 U.S.C.
§§
513(a) and 2, making, possessing, and
uttering a forged and counterfeit security of a private entity.
In response to the presentence report, movant's attorney, Peter
Smythe ("Smythe"), objected to the six-level enhancement to
movant's criminal history points based on the number of victims,
and he reurged his objection at movant's sentencing hearing on
August 10, 2012.
'
Smythe objected that the six-level enhancement
was based on the erroneous view that movant obtained personal
information of his victims from items stolen from postal
collection boxes.
However, Smythe argued that while some of the
individuals who provided movant the stolen items may have
obtained them from postal collection boxes, there was no evidence
that movant was aware of that fact, and no evidence connected
movant to the postal collection boxes.
The court considered this
to be an "open question" and gave movant "the benefit of the
doubt," Sentencing Tr. at 10, and decreased the six-level
enhancement to a two-level enhancement.
The court sentenced movant to a term of'imprisonment of 120
months, followed by a three-year term of supervised release.
Movant appealed, and the United States Court of Appeals for the
Fifth Circuit affirmed.
II.
Grounds of the Motion
Movant raised a single claim of ineffective assistance of
counsel by Smyth.
The factual basis of this claim pertains to
the withdrawal by Smythe of an objection to the presentence
report.
The presentence report added three criminal history
points based on movant's 1991 state court conviction for delivery
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of a controlled substance, and one point for his 1992 state court
conviction, also for delivery of a controlled substance.
Smythe
originally objected to the use of the 1991 conviction in
calculating movant's criminal history points'because movant was
discharged from parole for this offense in February 1996, and the
offense conduct occurred more than fifteen years later, in April
or May of 2011.
In the addendum to the presentence report in response to
this objection, the probation officer noted the portions of the
presentence report discussing movant's relevant conduct that
occurred as early as 2002.
Hence, the 1991 conviction was within
fifteen years of movant's earliest relevant conduct for the
instant offense.
Following the filing of the addendum, Smythe
withdrew his objection.
In the instant motion, movant alleged that Smythe's
withdrawal of the objection constituted ineffective assistance of
counsel.
In movant's view, the court sustained Smythe's
objection to the six-level enhancement and did not attribute all
of his co-conspirators' conduct to movant, instead lowering the
enhancement to two levels.
Movant now claims that Smythe should
have made the same objection to the use of his co-conspirators'
2002 relevant conduct that was used to bring movant's 1991 and
3
1992 convictions within the fifteen-year time frame.
III.
Analysis
A.
Applicable Standards
1.
Pertinent
§
2255 Principles
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 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).
In other words, a writ of
habeas corpus will not be allowed to do service for an appeal.
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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)) .
2.
Principles Applicable to Claims of 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 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
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
5
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).
Judicial scrutiny of this
Cullen v.
(quoting Strickland, 466
typ~
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 he has failed to meet
the standard set forth by Strickland.
B.
Movant's Motion Lacks Merit
Movant's claim in the instant motion is that Smythe should
not have withdrawn his objection to the use of the prior state
court convictions, but instead should have urged the court not to
consider the 2002 relevant conduct of movant's co-conspirators,
which brought movant's 1991 and 1992 convictions within the
fifteen-year time frame.
Because Smythe was successful in
obtaining a decrease in the six-level enhancement that was based
on the co-conspirators' relevant conduct, movant argues that
Smythe should have raised the same argument as to the 1991 and
1992 convictions.
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The distinction between the two objections defeats movant's
argument.
The six-level enhancement was based on the relevant
conduct of others that was attributed to movant.
In contrast,
the enhancements for the 1991 and 1992 convictions were based on
movant's own conduct in 2002, rather than the conduct of others.
Movant has directed the court to nothing as would show that
Smythe could have prevailed had he persisted'in his objection.
Failure to make a frivolous or meritless objection is not
ineffective assistance of counsel.
See Green v. Johnson, 160
F.3d 1029, 1037 (5th Cir. 1998) . 1
IV.
Order
Therefore,
The court ORDERS that the motion of William Sanford 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 11(a) of the Rules Governing,Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
1
The instant § 225 5 motion addresses both the 1991 and 1992 convictions, while Smythe only
objected to the 1991 conviction, The result would have been the same had Smythe objected to the 1992
conviction, and movant cannot assert a claim of ineffective assistance ofcounsel for failure of Smythe to
raise a meritless objection. See Green v. Johnson, 160 F,3d 1029, 1037 (5th Cir, 1998),
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§
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 November 13, 2014.
Judge
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