Markwith v. USA

Filing 8

Memorandum Opinion and Order... The court ORDERS that movant's § 2255 motion 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 made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 4/14/2015) (wxc)

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'NOH.'·i'HF..RN D~STRICT OF TEXAS

IN THE UNITED STATES DISTRict COURT
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NORTHERN DISTRICT OF TE:z!As
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FORT woRm mvmoN
JAMES R. MARKWITH,

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Movant,

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vs.

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UNITED STATES OF AMERICA,

NO. 4:15-CV-048-A
(NO. 4:12-CR-138-A)

§
§

Respondent.

§

MEMORANDUM OPINION
and
ORDER
Came on for decision the motion of James R. Markwith
("movant") under 28 u.s.c.

§

2255 to vacate, set aside, or

correct sentence by a person in federal custody.

After having

considered such motion, its supporting memorandum, the
government's response, the pertinent parts of the record in Case
No. 4:12-CR-138-A, styled "United States of America v. James R.
Markwith," and pertinent legal authorities, the court has
concluded that such motion should be denied.
I.

Background
On September 6, 2012, movant pleaded guilty to one count of
transporting and distributing a visual depiction of a minor for
importation into the United States, in violation of 18 u.s.c.

1

1

§§

2260 (b) and 2252 (b) (1).

The judgment signed December 26, 2012,

memorialized defendant's sentence, which was pronounced and
imposed on December 21, 2012.

Defendant was sentenced to a term

of imprisonment of 240 months, to be followed by a Life-term of
supervised release.
Movant appealed his sentence to the United States Court of
Appeals for the Fifth Circuit, which affirmed by an opinion
issued October 21, 2013.

Movant did not seek a writ of

certiorari by the Supreme Court.
on January 16, 2015. 1

Movant filed his

§

2255 motion

The government responded on February 19,

2015.
II.

Grounds of the Motion
Movant does not define any grounds for relief in his
motion.

§

2255

As well as the court can decipher, in his supporting

memorandum, movant is complaining of three things which the court
will treat as separate grounds.'

The first ground is that

'The comt notes that the motion movant filed is missing pages two, three, five, seven, nine,
eleven, and thirteen of the form movant used in preparing his motion. When making reference to the
pages or pages of such motion, the court is using the pagination of the header created through the court's
ECF system.
'While movant verified his motion, Doc. I at 7, his verification was meaningless as to the factual
bases of his motion because he did not state in the motion any of the facts upon which he relied. Thus,
the motion itself did not comply with the letter or spirit of Rule 2(b)(5) ofthe Rules Governing Section
2255 Cases in the United States District Comts, which requires that a motion for relief under§ 2255
"must ... specifY the facts supporting each ground ... and ... be signed under penalty of perjury by the
movant or by a person authorized to sign it for the movant." All of the facts upon which movant purports
to rely in support of his motion are set f01th in his supporting memorandum, which, while being
2

defense counsel failed to properly object to the contents of the
presentence report, including the enhancements therein.

The

second ground seems to be a collection of complaints that
counsel:

(a) failed to argue further for a Rule 20 transfer,

(b)

changed his mind and at the last moment recommended going to
trial, and (c) failed to object to factual misstatements in the
presentence report.

The third ground is that counsel failed to

make an argument under the theory of sentencing disparity.

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, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991).

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

mentioned in the motion, was not incorporated by reference in the motion. The supporting memorandum
is not verified by an affidavit or declaration. Therefore, the purported facts upon which movant relies in
support of his motion are not in a form that would authorize the court to give them evidentiary effect in
ruling on the motion. However, because the record of movant's criminal case makes so clear that movant
is not entitled to § 2255 relief, the court is not ordering movant to file an amended motion or a properly
verified amended memorandum.
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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,
miscarriage of justice.

if condoned, result in a complete

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)).

B.

Legal Standard for Ineffective Assistance of Counsel Claims
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
4

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
u.s. 86 (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."
, 131 S. Ct. 1388, 1403

Cullen v. Pinholster, 563 U.S.

(quoting Strickland, 466 U.S. at 686).

(2011)

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.
C.

The Grounds of the Motion are Without Merit
1.

Ground One

Movant's first ground seems to be that counsel failed to
challenge:

(1) the five-level sentencing enhancement for

distributing child pornography in exchange for a thing of value,
and (2) the five-level sentencing enhancement for engaging in a

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pattern of activity involving sexual abuse or exploitation of a
minor.

This claim fails because movant cannot show prejudice.

The magnitude of movant's sentence was not due to movant
receiving a ten-level increase in his offense level based on such
enhancements.

Instead, defendant's sentence was based on the

court's consideration of the sentencing factors contemplated by
18

u.s.c.

§

3553 (a).

Case No. 4:12-CR-138-A, Doc. 46 at 16. 3

The sentence of imprisonment of 240 months was a variance above
the top of the advisory guideline range.

Therefore, even if

movant could show that his attorney was ineffective for not
arguing against such enhancements and that there is a substantial
likelihood that the court would have agreed with such arguments,
movant cannot show that the lack of such enhancements would have
affected his eventual sentence.
Also, it bears noting that movant's attorney would have had
difficulty arguing against such enhancements.

In his factual

resume, movant stipulated to the fact that he requested from
B.F.,

"extream pies similar" to those which movant had already

sent to B.F., which formed the basis of the enhancement for
distribution of child pornography in exchange for a thing of
value.

3

Also, in his post-arrest interview, movant admitted to

The "Case No. 4:12-CR-138-A, Doc._" references are to the docket numbers assigned by the
clerk to the referenced items in Case No. 4:12-CR-138-A. The "Doc._" references are to the docket
numbers assigned by the clerk to the referenced items in this Case No. 4: 15-CV-048-A.
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sexually abusing a minor on one occasion and sexually exploiting
a minor on a separate occasion, which formed the basis for the
sentencing enhancement for engaging in a pattern of activity
involving sexual abuse or exploitation of a minor.
2.

Ground Two

Movant's second ground is less focused than the first.
mentions three issues he had with counsel's performance:

He

(1)

counsel •failed to argue [a] material fact relative further to a
Rule 20 transfer that was denied•;

(2) counsel changed his advice

in the "last days• stating that defendant should plead guilty
rather than go to trial;

(3)

counsel noted an expected time of

approximately ten years would be sentenced; and (4) counsel
•failed to object to the material mis-statements [sic] of the
PSR."

Doc. 4 at 9.
With regard to the first issue, movant offered no argument

as to what such •material fact• was,

the likelihood of such fact

resulting in the granting of a Rule 20 transfer, and how the
denial of such transfer prejudiced him.

For these reasons,

movant has not sufficiently alleged a claim of ineffective
assistance of counsel based on such conduct.
Similarly, plaintiff has not alleged that counsel's change
of his advice regarding pleading guilty versus going to trial in
the "last days• was unwarranted or that he was in some way
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prejudiced by such change.

Therefore, movant has not

sufficiently alleged a claim of ineffective assistance of counsel
based on such conduct.
Furthermore, to whatever extent movant generally is
complaining that his attorney did not advise him sufficiently of
the potential that he would have received a sentence of
imprisonment as long as he did receive, movant has not provided
any evidence that would support a finding that the length of
movant's sentence resulted from any ineffective assistance on the
part of his attorney.
Moreover, the record establishes that when defendant entered
his plea of guilty he was fully competent and capable of doing
so.

He testified under oath during his rearraignment hearing,

when he pleaded guilty, that he understood that his plea of
guilty must not be induced or prompted by any promises of any
kind, Case No. 4:12-CR-138-A, Doc. 45, at 7-8,

that no one made

any promise or assurance to him in order to induce him to enter a
plea of guilty, id. at 28, and that he understood that even if he
received a sentence more severe than expected, he was still bound
by his plea of guilty, id. at 29.

Furthermore, the court

cautioned movant that, by pleading guilty, he was subjecting
himself to a term of imprisonment which could be as much as

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twenty years.

Id. at 27.

Movant stated that he understood.

Id.

at 28.
"Solemn declarations in open court carry a strong
presumption of verity, forming a formidable barrier in any
Subsequent collateral proceedings."
132 F.3d 1106, 1110 (5th Cir. 1998)
quotations omitted) .

United States v. Cervantes,
(citation and internal

In order for a defendant to seek habeas

relief on the basis of alleged promises, when defendant has
previously stated under oath that he relied on no such promises,
defendant must prove "(1) the exact terms of the alleged promise,
(2) exactly when, where, and by whom the promise was made, and
(3) the precise identity of an eyewitness to the promise."

Id.

Where "the defendant's showing is inconsistent with the bulk of
[his] conduct or otherwise fails to meet [his] burden of proof in
the light of other evidence in the record, an evidentiary hearing
is unnecessary."

Id.

In this instance, movant has offered no

evidence of this alleged promise.

Therefore, movant has not

brought forward sufficient evidence to undermine his sworn
statements discussed above.
With regard to movant's complaint that his lawyer failed to
object to alleged misstatements in the PSR, he points to no
specific fact therein which is allegedly a misstatement.
Furthermore, as stated above, movant confessed to the sexual
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abuse and sexual exploitation of a minor.

Without a specific

statement as to what counsel failed to object to, the court
cannot find that counsel was ineffective for failing to so
object.
3.

Ground Three

The third ground on which movant based his ineffectiveassistance claim is that his counsel was allegedly ineffective
for failing to raise an argument regarding sentence disparity.
Movant discussed six cases he contends are similar to his
own.

None of those cases are from this circuit, and none of

those cases dealt with a defendant who admitted to sexually
abusing or sexually exploiting a minor; those defendants had
never acted out sexually with a minor.

Also, in two of the six

cases, the judgments were vacated and remanded for resentencing.
Therefore, based on this small subset of cases that are
drastically different from movant's situation, movant has not
provided evidence that there is a substantial likelihood of a
different sentence, had counsel made this argument.
For the reasons stated above, movant's motion is to be
denied.

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IV.
Order
Therefore,
The court ORDERS that movant's § 2255 motion 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 made a substantial showing of the
denial of a constitutional right.
SIGNED April 14, 2015.

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