Faulkner v. USA
Filing
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MEMORANDUM OPINION AND ORDER. The court ORDERS that all relief sought by movant in her motion under 28 U.S.C. § 2255 be, and is hereby, denied. 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 7/29/2016) (npk)
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IN
U.S. DlSTHICT COIRT
'NORTlIERN 1);',lnCTC: TEXAS
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FORT WORTH DIVISION
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LISA FAULKNER,
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Movant,
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292016
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VS.
UNITED STATES OF AMERICA,
Respondent.
NO. 4:16-CV-456-A
(NO. 4:14-CR-012-A)
§
§
§
MEMORANDUM OPINION AND ORDER
Came on for decision the motion of Lisa Faulkner ("movant")
under 28 U.S.C.
§
2255 to vacate, set aside, or correct sentence.
After having considered such motion, the government's response,
movant's reply, and pertinent parts of the record in Case No.
4:14-CR-012-A, styled "united States of America v. Faulkner," the
court has concluded that such motion should be denied.
1.
Background
On February 7, 2014, movant entered a plea of guilty to
wire fraud. CR Doc. 1 16; CR. Doc. 17.
Movant's imprisonment
range was 63 to 78 months' imprisonment, and on May 23, 2014, the
court sentenced her to a term of 120 months' imprisonment and
three years of supervised release. CR. Doc. 46; CR. Doc. 47.
lThe "CR Doc. _" references are to the numbers assigned to the referenced documents on the
docket of the underlying criminal case, No. 4: 14-CR-012-A.
Movant appealed her sentence and the sentence was affirmed.
united States v. Faulkner, 598 F. App'x 301 (5th Cir. 2015)
The government does not dispute that movant has timely filed
her motion under 28 U.S.C.
§
2255. The pertinent facts are
adequately summarized by the government's response and will not
be repeated here.
II.
Grounds of the Motion
Movant asserts four grounds in support of her motion. Doc. 2
1. Movant's first ground is that her Fifth Amendment rights were
violated based on what appears to be an argument regarding the
court's decision to impose a sentence above the advisory
guideline range. Doc. 1 at 5. Movant's second ground is that her
Tenth and Fourteenth Amendment rights were violated by the
sentencing guideline range, including an enhancement for the use
of sophisticated means in committing the crime. Doc. 1 at 6.
Movant's third ground is ineffective assistance of counsel in
violation of her sixth Amendment right in relation to the failure
of counsel to argue that acceptance of responsibility should
apply to her sentencing guidelines. Doc. 1 at 8. Movant's final
argument is that the court violated her Fifth Amendment rights by
2The "Doc. _" references are to the numbers assigned to the referenced documents on the docket
of this case, No. 4: 16-CV-456-A.
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failing to apply acceptance of responsibility points to her
sentencing guidelines. Doc. 1 at 9.
III.
Analysis
A.
Pertinent Legal Principles
1.
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( 164-65
(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(
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." Moore v. united States( 598 F.2d 439( 441
3
(5th Cir. 1979)
(citing Buckelew v. united States
575 F.2d 515
l
1
517-18 (5th Cir. 1978)).
2.
Legal Standard for Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim
movant must show that
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(1) counsel's performance fell below an
objective standard of reasonableness and (2) there is a
reasonable probability that
errors
l
but for counsel's unprofessional
the result of the proceedings would have been different.
l
strickland v. Washington
Missouri v. Frye
1
l
566 U.S.
466 U.S. 668 1 687
1
(1984); see also
132 S. Ct. 1399
1409-11 (2012).
1
"[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
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l
207 F.3d 750
1
751 (5th Cir. 2000). "The likelihood of a different result must
be substantial
U.S. 86
1
112
l
not just conceivable
(2011)
1
1
"
Harrington v. Richter
562
l
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." Cullen v. Pinholster
(quoting Strickland
l
l
563 U.S. 170
1
189 (2011)
466 U.S. at 686). Judicial scrutiny of this
type of claim must be highly deferential and movant must overcome
a strong presumption that his counsel/s conduct falls within the
wide range of reasonable professional assistance.
4
Strickland
l
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.
lIS, 122
B.
(2011).
The Grounds of the Motion are without Merit
1.
Ground One
Movant's first ineffective assistance of counsel claim
relates to the court's decision to apply a sentence above the
guidelines. Doc. 1 at 5. Movant cannot raise a claim that could
have been raised on appeal with a motion under
§
2255. Davis, 417
U.S. at 345. Furthermore, movant's claim is nothing more than
conclusory allegations which cannot sustain a claim for
ineffective assistance of counsel. See Ross v. Estelle, 694 F.2d
1008, 1012
2.
(5th Cir. 1983).
Ground Two
Movant's second ground relates to the enhancement she
received for using a sophisticated means to commit the underlying
crime. Doc. 1 at 6. Movant raised this ground on direct appeal.
Faulkner, 598 F. App'x 301. The United States Court of Appeals
for the Fifth Circuit held that the application of such
enhancement was not clear error. rd. When issues "are raised and
considered on direct appeal, a defendant is thereafter precluded
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from urging the same issues in a later collateral attack." Moore,
598 F.2d at 441 (citing Buckelew, 575 F.2d at 517-18).
3.
Ground Three
Movant's third ground is ineffective assistance of counsel
for failure of counsel to raise an argument that movant should
have received acceptance of responsibility. While this claim is
styled as an ineffective assistance of counsel claim, a motion
under
§
2255 may not be used to address claims of misapplication
of the sentencing guidelines which it appears is movant's main
goal. See united States v. williamson, 183 F.3d 458, 462
(5th
Cir. 1999). Furthermore, an ineffective assistance of counsel
claim cannot be based on "an attorney's failure to raise a
meritless argument." See united States v. Kimbler. Movant's
conclusory allegations do not establish a claim for ineffective
assistance of counsel. See Ross, 694 F.2d at 1012. Movant has not
shown that the failure of counsel to raise an argument regarding
acceptance of responsibility, was ineffective assistance of
counsel.
4.
Ground Four
Movant's fourth ground is that the court violated her Fifth
Amendment rights by failing to give her acceptance of
responsibility. Again, movant cannot raise a claim that could
have been raised on direct appeal with a motion under
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§
2255.
Davis, 417 U.S. at 345. Also, as stated above, movant may not use
§
2255 to raise a claim of misapplication of sentencing
guidelines. See Williamson, 183 F.3d at 462.
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,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED July 29, 2016.
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