Turner v. USA
Filing
8
Memorandum Opinion and Order denying 1 MOTION to Vacate under 28 U.S.C. 2255: The court ORDERS that all relief sought by movant in her motion under 28 U.S.C. § 2255 be, and is hereby, denied. Pursuant to Rule 22(b) of the Federal Rules of Ap pellate 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 4/3/2015) (mdf)
u.s. mSCf[{lCTCOURf-l
NORTHERN DISTRICT OF TEXAS
.
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
WAYNE ANTHONY TURNER,
FILED
tAPR - 320/5
CLE~ U.S. DISTRJCT CO~.~l<::'
By
.
§
§
Movant,
§
§
§
VS.
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UNITED STATES OF AMERICA,
NO. 4:15-CV-073-A
(NO. 4:12-CR-195-A)
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Respondent.
§
MEMORANDUM OPINION
and
ORDER
Came on for decision the motion of Wayne Anthony Turner
("movant") under 28 U.S.C.
correct sentence.
§
2255 to vacate, set aside, or
After having considered such motion, its
supporting memorandum, the government's response, and pertinent
parts of the record in Case No. 4:12-CR-195-A, styled "United
States of America v. Wayne Anthony Turner, et al.," the court has
concluded that such motion should be denied.
I.
Background
Information contained in the record of Case No. 4:12-CR-195A discloses the following background that is potentially
pertinent to the ground of movant's motion:
On September 12, 2012, movant was named, along with two
others, in a two count indictment. Movant was charged in Count
1
I
One with possession of counterfeit securities in violation of 18
U.S.C.
§§
513(a) and 2. Dkt. 1. Attorney J. steven Bush was
appointed to represent movant, Dkt. 10, but he later filed a
motion to withdraw. Dkt. 17. By order signed September 28, 2012,
Ricardo De Los Santos ("Ricardo") was appointed to represent
movant. Dkt. 28.
On October 19, 2012, movant appeared with Ricardo for
rearraignment. Dkt. 113. Movant testified that he had read and
understood the indictment, 14:21-15:1. Further, he had read and
understood the factual resume, which he had executed after
discussing it with his attorney. 15:5-24. The court explained the
penalties to which movant would be subjecting himself and movant
acknowledged all of those penalties and punishments. 17:2-25.
Movant testified that he was satisfied with the representation
provided by his attorney, Ricardo, and that he had no complaint
about him. 18:4-10.
By order signed February 11, 2013, the court gave notice of
its tentative conclusion that movant should receive a sentence of
imprisonment significantly above the top of the advisory
guideline range. Dkt. 73. On February 15, 2013, movant appeared
for sentencing with attorney Rey De Los Santos ("Rey"), son and
law partner of Ricardo. Dkt. 114. Rey presented objections to the
court's tentative conclusion regarding the sentence, urging that
2
the guidelines adequately took into account movant's position. He
brought to the court's attention the nature and timing of
movant's earlier convictions, movant's need for drug
rehabilitation, and family needs. Dkt. 114, 6:14-8:14. Given an
opportunity to speak on his own behalf, movant simply apologized.
8:22-9:1. The court then gave a lengthy and explicit explanation
of the conclusion that a sentence at the top of the advisory
guideline range should be imposed. 9:4-13:8. In sum, the court
concluded that movant's criminal history category did not
adequately represent the nature and extent of his past criminal
conduct, which indicated movant's danger to society. 11:13-22. In
the alternative, reviewing the sentence as a departure under the
guidelines, the court had reliable information that movant's
criminal history category substantially underrepresented the
seriousness of his criminal history and the likelihood movant
would commit other crimes.
An
upward departure to a Criminal
History Category of VI would put movant in the same sentencing
range. 12:5-13:8. Thus, movant was sentenced to a term of 120
months. 13:9-11; Dkt. 82.
After the sentencing hearing, the court realized that Rey,
rather than Ricardo, had appeared on behalf of movant. The court
sought an explanation from Ricardo, who took full responsibility
for allowing Rey to appear at the sentencing. By order dated
3
February 22, 2013, the court appointed Danny Burns to inform
movant of the facts and to consult with him regarding any action
movant might wish to take in response. Dkt. 86. Movant filed his
notice of appeal. Dkt. 84. Then Ricardo sought a stay, which the
Fifth Circuit temporarily granted so that he could seek a stay in
the district court. Dkt. 90.
On February 28, 2013, Ricardo filed a motion for stay in the
district court. Dkt. 92. The first portion of the motion contains
Ricardo's affidavit regarding the events surrounding the
sentencing. It is consistent with movant's admission that he met
several times with both Rey and Ricardo to discuss his case. Dkt.
104, 2-3. The affidavit explains that Ricardo and Rey work
together on their cases; that each had visited with movant
regarding movant's case; that Ricardo and Rey had considered and
discussed the court's order regarding intent to sentence above
the guidelines; and that Rey had mistakenly appeared at the
sentencing. Dkt 92, 6-7. The court denied the motion for stay.
Dkt. 101. The Fifth Circuit likewise denied Ricardo's petition
for writ of mandamus. Dkt. 105.
There followed a series of filings and letters of which the
court made the Fifth Circuit aware. Dkt. 106, 107, 110, 112, and
115. In addition, Ricardo filed many of the same papers, and
4
-------------------------
others, with the Fifth Circuit. In re Ricardo De Los Santos, No.
13-10209. Ultimately, the Fifth Circuit denied any relief. Id.
As for the appeal, the Fifth Circuit issued its opinion
denying relief on May 27, 2014. united States v. Turner, 569 F.
App'x 225 (5th Cir. 2014).
II.
Grounds of the Motion
Movant urged in the motion, which he filed January 30, 2015,
two ineffective-assistance-of-counsel claims and one claim of
violation of double jeopardy, along with supporting facts, worded
as follows:
GROUND ONE:
DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL.
SUPPORTING FACTS:
COUNSEL ABANDONED PETITIONER AT SENTENCING. SUBSTITUTE
COUNSEL WAS NOT APPROVED OF BY PETITIONER OR THE COURT
BEFOREHAND.
Dkt. 1 at 7. 1
GROUND TWO:
CONVICTION OBTAINED BY PLEA OF GUILTY WHICH WAS UNLAWFULLY
INDUCED OR NOT MADE VOLUNTARILY OR WITH UNDERSTANDING OF THE
NATURE OF THE CHARGE AND THE CONSEQUENCES OF THE PLEA.
SUPPORTING FACTS:
COUNSEL FAILED TO ADEQUATELY REPRESENT PETITIONER WHERE HE
HAS OPENLY ADMITTED THAT HE FOSTERED PETITIONER OFF TO HIS
SON/LAW PARTNER, ALL WITHOUT PETITIONER'S KNOWLEDGE AND/OR
CONSENT. PETITIONER ENTERED INTO A PLEA AGREEMENT WITHOUT
FULL KNOWLEDGE OF IT'S [sic] RAMIFICATIONS OR CONSEQUENCES.
lUnless otherwise indicated, the ItDkt. _It references will be to the numbers assigned to the filed
items on the clerk's docket in Case No.4: 15-CV-073-A.
5
GROUND THREE:
CONVICTION OBTAINED BY A VIOLATION OF THE PROTECTION AGAINST
DOUBLE JEOPARDY.
SUPPORTING FACTS:
THE DISTRICT COURT USED PETITIONER'S PRIOR CONVICTIONS TO
INCREASE THE PRESCRIBED RANGE OF PUNISHMENT, EVEN AFTER
THOSE CONVICTIONS WERE TAKEN INTO ACCOUNT IN REACHING AN
APPROPRIATE RANGE OF PUNISHMENT.
The motion was accompanied by an eight-page supporting
memorandum in which movant elaborated on the bases for his
grounds for relief.
III.
Analysis
A.
Legal Standard for 28 U.S.C.
§
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) .
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,
6
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 Claim
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
U.S. 86 (2011), and a movant must prove that counsel's errors "so
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undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result."
Cullen v. Pinholster, 563 U.S.
, 131 S. Ct. 1388, 1403 (2011)
(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. Stated differently, the question is
whether counsel's representation amounted to incompetence under
prevailing professional norms and not whether it deviated from
best practices or most common custom. Premo v. Moore, 562 U.S.
115, 122 (2011).
C.
Movant Has Failed to Meet the strickland IneffectiveAssistance-of-Counsel Standard as to Either of His
Complaints
1.
Alleged Abandonment at Sentencing
Movant first contends that he was denied effective
assistance of counsel because he was not represented at
sentencing by the attorney who was assigned by the court to
represent him. His complaint is that Rey was only "familiar"
with, and had no "intimate knowledge" of, his case. Dkt. 139 at
14. He relies on cases where counsel was wholly absent at
sentencing. See, e.g., United States v. Souder, 782 F.2d 1534
(11th Cir. 1986). Of course, that is not the case here. Movant
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was represented and objections (showing more 'than mere
familiarity) were made, as recited supra. Moreover, even had the
objections been more eloquently made, there is no likelihood that
the result would have been different. That is because the Fifth
Circuit has determined that movant's sentence did not suffer from
procedural error and was not sUbstantially unreasonable. 569 F.
App'x
at 225-26. Movant's attempt to re-litigate those issues
under the guise of ineffective-assistance-of-counsel is
inappropriate.
See United States v. Kalish, 780 F.2d 506, 508
(5th Cir. 1986) (issues raised and disposed of in a previous
appeal from an original jUdgment of conviction are not considered
in
§
2255 motions); see also, Moore v. united States, 598 F.2d
439, 441 (5th Cir. 1979) (" [t]he appellate process does not permit
reruns" by way of renewing claims resolved on direct appeal
through collateral attack).
2.
The Complaint that Counsel Failed to Adeguately Advise
Movant Re His Plea of Guilty
In his second ground, movant complains that, because he was
"fostered" off by Ricardo to Rey, movant entered into a plea
agreement 2 without full knowledge of its ramifications or
consequences. Dkt. 139 at 7. This claim is belied by the
2As noted at movant's sentencing, there was no plea
agreement in this case, just a plea by factual resume. Dkt. 114,
5:19-6:5.
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transcript of the rearraignment hearing at which movant appeared
with Ricardo. Dkt. 113. specifically, movant was aware that he
faced a maximum sentence of ten years and that is what he
received.
D.
The Alleged Double Jeopardy Violation
In his third ground, movant asserts that his conviction was
obtained by a violation of the protection against double
jeopardy, because the court used his prior convictions to
increase the range of punishment. This ground was raised and
rejected on appeal and cannot be pursued here. Kalish,780 F.2d at
508.
IV.
Order
consistent with the foregoing,
The court ORDERS that all relief sought by movant in her
motion under 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.
§
2253(c) (2), for the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
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denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED March 6, 2015.
J
N McBRYDE
Un' ed States
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