Lemus v. USA
Filing
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Memorandum Opinion and Order: The court ORDERS that all relief sought by movant in his motion under 29 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 Gov erning 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 11/3/2016) (mpw)
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CUi RK, U.S. DISHUCT COL IIi
ARTURO LEMUS, JR.
.11----;r-----I'let~nty
§
I
§
Movant,
§
§
vs.
§
§
UNITED STATES OF AMERICA,
NO. 4:16-CV-739-A
(NO. 4:14-CR-105-A)
§
§
§
Respondent.
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Arturo Lemus, Jr.
("movant") under 28 U.S.C.
§
2255 to vacate, set aside, or
correct sentence. After having considered such motion, the
government's response, pertinent parts of the record in Case No.
4:14-CR-105-A, styled "United States of America v. Arturo Lemus,
Jr.," and applicable authorities, the court has concluded that
the motion should be denied.
I.
Background
Information contained in the record of the underlying
criminal case discloses the following:
On May 14, 2014, movant was named in a one-count indictment
charging him with being a felon in possession of a firearm,
violation of 18 U.S.C.
1
§
in
922 (g) (1). CR Doc. 1 10. On July 3, 2014,
The "CR Doc." reference is to the number of the item on the docket in the underlying criminal
(continued ... )
movant pleaded guilty. CR Doc. 19. At the time, movant was free
on bond. Id. One day after disclosure of the presentence
investigation report, movant was stopped for a traffic violation
and was found to be in possession of drugs and a large amount of
cash. CR Doc. 24, 28. His conditions of release were revoked. Cr.
Doc. 30. The probation officer then amended the presentence
investigation report to take away the three-level reduction for
acceptance of responsibility, since movant had failed to withdraw
from criminal conduct, and to recommend an upward departure. CR
Doc. 32. The court gave the parties written notice through an
order signed October 31, 2014, that it had tentatively concluded
that a sentence of imprisonment significantly above the top of
the advisory guideline range would be appropriate. CR Doc. 36.
At sentencing, the court adopted without objection the
findings and conclusions of the presentence investigation report
and addendum. Movant's counsel urged that he be sentenced within
the guideline range and argued that an upward departure should
not be ordered. CR Doc. 46 at 4-8. Movant's brother, sister, and
a niece spoke on his behalf. CR Doc. 46 at 9-12. Movant then
apologized and purported to take full responsibility for his
actions. CR Doc. 46 at 13.
1
( •••
continued)
case, No. 4: 14-CR-1 05-A.
2
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The court sentenced movant to a term of imprisonment of 120
months. CR Doc. 40. Movant appealed and his sentence was
affirmed. CR Doc. 47, 48. United States v. Lemus, 619 F. App'x
4 04
(5th C i r . 2 0 15 ) .
II.
Grounds of the Motion
Movant urges two grounds in support of his motion, worded as
follows:
GROUND ONE: Unconstitutional sentence pursuant to the
recent decision in [Johnson v. United States, 135 S.
Ct. 2551 (2015)] .
Doc. 2 1 at 5. As supporting facts, movant says that his sentence
was enhanced for prior criminal conduct that has now been ruled
unconstitutional.
GROUND TWO: Ineffective assistance of appellate
counsel on direct appeal.
Doc. 1 at 6. As supporting facts, movant asserts that he was
wrongfully denied his three point reduction for acceptance of
responsibility due to conduct while on supervised release. He
says his attorney failed to argue this at sentencing; hence he
received a higher sentence than was called for.
Id.
III.
2
The "Doc." reference is to the number ofthe item on the docket in this civil action.
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Standards of Review
A.
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
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.
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); United States
v. Placente, 81 F.3d 555, 558
(5th Cir. 1996).
Further, if
issues "are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
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collateral attack.u
(5th Cir. 1979)
Moore v. United States, 598 F.2d 439, 441
(citing Buckelew v. United States, 575 F.2d 515,
517-18 (5thCir. 1978)).
B.
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
Missouri v. Frye, 566 U.S.
I
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, 112
(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."
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(quoting Strickland, 466 U.S. at 686).
Judicial scrutiny of this
type of claim must be highly deferential and the defendant must
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overcome a strong presumption that his counsel's conduct falls
within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689.
IV.
Analysis
In his first ground, movant simply refers to Johnson, not
even giving a proper citation. He does not allege any facts to
support any claim that his sentence was improperly enhanced.
Although the motion is to be liberally construed, mere conclusory
allegations on critical issues are insufficient to raise a
constitutional issue. United States v. Pineda, 988 F.2d 22, 23
(5th
Cir. 1993). Movant was not sentenced based on prior violent
felonies or serious drug offenses.
In his second ground, movant says that he received
ineffective assistance of counsel. He has not made any attempt to
overcome the strong presumption that his counsel's conduct falls
within the wide range of reasonable professional assistance.
Strickland, 466 u.s. at 689. The record reflects that movant
continued to engage in criminal activity while on bond. Failure
to terminate or withdraw from criminal conduct or associations is
a factor the court may take into account when determining whether
the defendant has demonstrated acceptance of responsibility. USSG
§
3El.l, comment.
(n.l). The failure to raise a meritless claim
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cannot be ineffective assistance of counsel. United States v.
Kimler , 16 7 F . 3d 8 8 9 , 8 9 3
( 5th Ci r . 19 9 9 ) .
v.
Order
The court ORDERS that all relief sought by movant in his
motion under 29 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 November 3, 2016.
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