Rainey v. USA

Filing 10

Memorandum Opinion and Order: The court ORDERS that all relief sought by movant in his December 5, 2014 motion under 28 u.s.c. § 2255 to vacate, set aside, or correct sentence by a person in federal custody 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 2255Proceedings 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. (Ordered by Judge John McBryde on 1/20/2015) (mem)

u.s. DISTRICT COlJRT----·•""
NORTHERN DISTRICT OF TEXAS

IN THE UNITED sTATEs DISTRI
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

WILLIAM WALTER RAINEY,

l•

As:.: · '
•·

I

2 0 2015

CLERK, U.S. DlSTRKT COlJRT
By _ _~ - - - - - -

§

'-----

§

Movant,

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T'.~~ou~T FILED

o{'p~;; n.

,_~~---- ~~----~-~_,..

_____

§
§

vs.

§
§

UNITED STATES OF AMERICA,
Respondent.

NO. 4:14-CV-980-A
{NO. 4:11-CR-180-A}

§
§
§

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion filed by William Walter Rainey {"movant 11
2014, under 28 U.S.C.

§

}

on December 5,

2255 to vacate, set aside, or correct

sentence by a person in federal custody.

After having considered

such motion, its supporting memorandum, the response of United
States of America, the record in Case No. 4:11-CR-180-A, and
pertinent legal authorities, the court has concluded that such
motion lacks merit and all relief sought thereby should be
denied.
I.

Pertinent Background
On November 15, 2011, movant, along with several other
defendants, was changed in a one-count indictment with conspiracy
to distribute, and to possess with intent to distribute, a

t
'

,_......._,.

controlled substance, in violation of 21 U.S.C.

§

846.

D. Robin

McCarty was appointed as his Criminal Justice Act attorney.

On

March 16, 2012, movant entered a plea of guilty, without a plea
agreement, to the offense charged by the indictment.
sentenced on June 29, 2012.

He was

He received a sentence of

imprisonment of 360 months, which was at the bottom of his
advisory guideline range of 360-480 months of imprisonment.

His

sentence included service of a term of supervised release of five
years upon completion of his sentence of imprisonment and an
obligation to pay a special assessment of $100 at the time of
sentencing.
He appealed from his sentence to the Fifth Circuit, which
affirmed his sentence by order and judgment issued September 9,
2013.
Movant's motion for relief under 28 U.S.C.

§

2255 was filed

December 5, 2014, on a form titled uMotion Under 28 U.S.C.

§

2255

to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody."

The motion was accompanied by a supporting memorandum

and two affidavits, one by Aaron Miles {uMiles") and the other by
Edwin Woo-Jin Kim {uKim").
The motion raises four grounds, each described as an
urneffective Assistance of Counsel" ground.

2

Mot. at 5-6.

In

each instance, movant makes reference to his supporting
memorandum for the specifics.
The supporting memorandum indicates that the specifics are:
Ground One:

Movant complains that his counsel was

ineffective when his counsel advised him to plead guilty without
a plea agreement.
Ground Two:

Mem. at 5-6.
Movant complains that his counsel was

ineffective related to movant's sentencing and punishment.

The

exact contours of this ground are elusive, but the ground appears
to be related to alleged failures of movant's counsel to object
to the presentence report for various reasons.
Ground Three:

Id. at 7-9.

Movant apparently is objecting advice his

counsel gave him relative to movant's presentence interview with
the probation officer concerning drug quantities and drug
activities of movant.
Ground Four:

Id. at 9-11.

Movant appears to be complaining of his

counsel's negotiations, or lack of negotiations, with the
prosecutor during the plea negotiation process.
Movant adds as a part of the final sentence immediately
ahead of the uconclusionn in his memorandum the following:
had counsel pursued issues in Movant's direct appeal
that were supported by both the record and the law,
there exists a reasonable probability that the Fifth
Circuit would have remanded his case back to the

3

District Court further consideration including resentencing.
Id. at 14-15.

Because of the general nature of movant's

complaint about the handling of his appeal, the court is not
devoting further attention to that subject.
II.
Analysis
A.

Applicable Standards
1.

Pertinent

§

2255 Principles

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
fairly and finally convicted.
152, 164 (1982)

i

United States v. Frady, 456 U.S.

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

4

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 515,

517-18 (5th Cir. 1978)).
2.

Principles Applicable to Ineffective Assistance of
Counsel Grounds

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).

5

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

u.s.

at 686).

s.

Ct. 1388, 1403 (2011)

Cullen v.

(quoting Strickland, 466

Judicial scrutiny of tnis 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.

B.

Strickland, 466

None of Movant's Grounds Has Merit
1.

The Lack of Merit of Ground One

Movant's arguments under the heading in his memorandum
"Counsel's Erroneous Advice to Plead Guilty, Without a Plea
Agreement," Mem. at 5-6, is purely conclusory, and do not provide
any factual information that could support a finding or
conclusion that counsel for movant was ineffective with respect
to any advice he might have given to movant relative to whether
he should plead guilty without a plea agreement.

The suggestion

made by movant that his counsel told him that the AUSA had
indicated that movant would face no more than fifteen years of
imprisonment if he pleaded guilty without a plea agreement flies
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directly in the face of sworn testimony given by movant at his
rearraignment hearing.

He testified that he understood the

following:
THE COURT:

* * * * *
The penalty will be decided on the basis of the
facts set forth in the presentence report and facts
heard here. You should never depend or rely upon any
statement or promise by anyone, whether connected with
a law enforcement agency or Government, or anyone else,
as to what penalty will be assessed against you.
Should you decide to plead guilty, your plea of guilty
must not be induced or prompted by any promises, mental
pressure, threats, force, coercion, or pressure of any kind.
A plea of guilty must be purely voluntary and you should
plead guilty only because you are guilty and for no other
reason.
Tr. of Rearraignment at 6-7, Case No. 4:11-CR-180-A (Doc. 267).
Also, he said he understood that by pleading guilty he was
subjecting himself to punishment in the form of a term of
imprisonment of at least five years but which could be as much as
forty years.

Id. at 19-20.

Finally, the following exchange took

place between the court and movant that clearly established that
he was not pleading guilty in reliance on any promise or
assurance to him by his attorney:
THE COURT: Mr. Rainey, has anyone made any
promise or assurance to you of any kind in an effort to
induce you to enter a plea of guilty in this case?
THE DEFENDANT:

No, sir.

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* * * * *
THE COURT: Do you understand that if you plead
guilty and if that plea is accepted by the Court you
will be adjudged guilty of the offense charged by the
indictment in this case and that your punishment will
be assessed somewhere within the range of punishment
provided by statute and your sentence will be within
the range provided by statute? Do you understand those
things?
DEFENDANT RAINEY:

Yes, sir.

THE COURT: Do you understand that if you plead
guilty and end up getting a sentence that is more
severe than you hoped it would be, you will still be
bound by your plea of guilty and won't have a right to
withdraw it?
DEFENDANT RAINEY:

Yes, sir.

Id. at 20-21.
The court has not been provided any information by movant to
cause the court to conclude that movant should be permitted now
to take a position that is at variance with the sworn testimony
he gave at his rearraignment hearing.

Moreover, movant has

failed to provide any information that would enable the court to
conclude that the prosecutor would have been willing to enter
into a plea agreement with movant that would have been acceptable
to him, nor is there any suggestion as to what kind of plea
agreement the government and movant might have entered into that
would have been acceptable to the court.
Therefore, movant's ground one is without merit.

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2.

The Lack of Merit of Ground Two

Movant's argument in support of ground two is under the
heading "Ineffectiveness Related to Sentencing Guidelines" found
on pages 7-9 of his memorandum.

There is a notable absence of

any substantive argument that would remotely suggest that
movant's counsel's conduct was ineffective in regard to the
sentencing guidelines.

The conclusory statements made by movant

in this part of his memorandum do not begin to satisfy movant's
obligation to provide factual support for his grounds for relief.
Movant's ground two is without merit.
3.

The Lack of Merit of Ground Three

Movant's ground three argument is contained under the
heading "Counsel's Erroneous Advice Generally" found at pages 911 of his memorandum.

He makes the unverified assertion that his

counsel advised him in advance of his interview with the
probation officer that he "should be careful how he answered
questions about drug amounts, and that [he] should keep his drug
amount at a level that's not too big, but not too small either,
because the Court would take [his] acceptance of responsibility
reduction away."

Mem. at 9.

Movant goes on to contend that,

based on that advice, he falsely inflated his drug amount during
his interview with the probation officer by stating that he was
responsible for the distribution of one ounce of heroin per week.
9

Id.

Apparently movant is contending that what he told the

probation officer during the interview formed the basis for the
probation officer's finding as to the drug amount that should be
attributed to movant for offense level calculations.

However,

the presentence report indicates that the drug quantities used by
the probation officer in calculating the base offense level were
not derived from things movant said in his interview with the
probation officer.
19, , 68.

Presentence Report at 17-18, ,, 55-57, and

There simply is no evidentiary support for the

complaint of ineffective assistance of counsel movant makes in
the argument he presents in support of his ground three. 1
Movant's ground three is without merit.
4.

The Lack of Merit of Ground Four

Plaintiff's complaint in support of this ground is that
"counsel simply took no action or initiative to negotiate a
reasonable plea agreement with the Government."

Mem. at 12.

Movant provides no evidentiary support for that assertion.
1

Nor

Apparently the affidavits of Miles and Kim movant filed December 5, 2014, are directed to the
subject of drug quantities that should have been taken into account by the probation officer in the
calculation of movant's base offense level. The self-serving, and uncorroborated, statements made in
those affidavits prove nothing that advances any of movant's grounds for relief. The information
contained in the presentence report upon which the probation officer relied in arriving at the quantity of
drugs to be attributed to movant in the calculation of his base offense level would not be affected even if
the contents of the affidavits had been considered by the probation officer. See Presentence Report at 818, ~~ 10-57. Pertinent is the statement made by the probation officer in the presentence report under the
heading "Summary of Defendant's Conduct" that "Rainey also employed heroin distributors, Miles ...
and Kim, however, the drug quantities and time frame of their conduct were unable to be corroborated
for purposes of guideline computations." Id. at 17, ~55.

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has movant provided any indication as to what kind of plea
agreement his counsel should have negotiated with the government
or whether any plea agreement acceptable to movant could have
been entered into.

Section 2255 relief cannot be granted on pure

speculation.
Movant's ground four is without merit.
III.
Order
For the reasons given above,
The court ORDERS that all relief sought by movant in his
December 5, 2014 motion under 28

u.s.c.

§

2255 to vacate, set

aside, or correct sentence by a person in federal custody 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.
§

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
denial of a
SIGNED January 2.01 201·5.

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