Deason v. USA
Filing
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Memorandum Opinion and Order... The court ORDERS that all relief sought by movant in his motion under 28 U.S.C. § 2255 be, and is hereby, denied. (Ordered by Judge John McBryde on 1/23/2017) (wxc)
U.S .
....
NORTiff<'
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CALEB DEASON,
§
·····"""
§
Movant,
§
§
vs.
§
§
UNITED STATES OF AMERICA,
NO. 4:16-CV-1168-A
(NO. 4:13-CR-158-A)
§
§
Respondent.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Caleb Deason
("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 reply, and pertinent parts of the
record in Case No. 4:13-CR-158-A, styled "United States of
America v. Caleb Deason," 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 September 4, 2013, movant was named in a two-count
indictment charging him in count one with wire fraud, in
violation of 18
u.s.c.
§
1343, and in count two with money
laundering, in violation of 18 U.S.C.
§
1957. CR Doc. 1 1. The
Federal Public Defender was appointed to represent movant, but he
later retained counsel to appear on his behalf. CR Docs. 7 & 15.
Movant's retained counsel filed a motion for continuance, citing
the voluminous records to be reviewed and the need for further
independent investigation, including out-of-state interviews and
forensic retrieval of electronic files on computer servers of a
third party provider. CR Doc. 19. The court granted the motion
for continuance. CR Doc. 22. The court had several conferences
with counsel regarding pretrial matters. CR Docs. 41, 43, 44.
Movant's case was tried to a jury, which convicted him of both
counts of the indictment. CR Doc. 71.
Movant's advisory guideline range was 78 to 97 months. CR
Doc. 86 at , 85. The court gave notice that, except as accepted
by the probation officer, movant's objections to the presentence
report were without merit and that a sentence of imprisonment
significantly above the top of the advisory guideline
imprisonment range would be appropriate. CR Doc. 92. Movant's
counsel argued at sentencing that his case was not much different
from other fraud cases and that a guideline sentence would be
appropriate. CR Doc. 118 at 15-18. Movant was sentenced to a term
1
The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4:130CR-158-A.
2
of imprisonment of 120 months as to each count, to run
concurrently. CR Doc. 95. He appealed and his conviction,
sentence, and restitution order were affirmed. United States v.
Deason, 622 F. App'x 350 (5th Cir. 2015). His motion for
rehearing was denied on September 24, 2015.
II.
Grounds of the Motion
Movant urges three grounds in support of his motion, worded
as follows:
GROUND ONE: Deason Was Denied Effective Assistance of
Counsel at Sentencing, A Critical Stage.
GROUND TWO: Defense counsel failed to conduct an
adequate pre-trial investigation, and the failure was
prejudicial to Deason, in violation of Amendment VI to
the Constitution.
GROUND THREE: Movant Was Denied Due Process of Law and
Effective Assistance of Counsel, through Counsel's
Failure to Object that there was no Venue in the
Northern District of Texas to the Wire Fraud Charge.
Doc. 1 at 7-8.
III.
Applicable Legal Standards
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.
3
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
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)).
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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.
~-'
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
overcome a strong presumption that his counsel's conduct falls
within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689. Simply making conclusory allegations
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of deficient performance and prejudice is not sufficient to meet
the Strickland test. Miller v. Johnson, 200 F.3d 274, 282
(5th
Cir. 2000).
IV.
Analysis
In each of his grounds, movant complains that his counsel
was ineffective. In the first ground, he generally argues that
his counsel failed to urge argument against an upward variance
and also failed to argue in favor of a downward variance. In his
memorandum, he cites a number of cases regarding sentencing,
arguing that he should have received a lighter sentence. Movant's
unsupported conclusory allegations fail to meet his heavy
Strickland burden. In any event, the record reflects that
movant's counsel made appropriate objections and arguments on his
behalf. That movant received a harsher sentence than he would
have liked does not mean that he received ineffective assistance
of counsel.
In his second ground, movant alleges that his counsel failed
to conduct an adequate pretrial investigation into the wire
transmission the subject of the indictment. His contention is
that venue was improper in the Northern District of Texas,
because the wire at issue never went from,
to, or through Texas.
His third ground says that he was denied due process through his
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counsel's failure to object to lack of venue due to the wire
transmission not taking place in Texas. Neither of these grounds
has merit. The court is satisfied that movant's counsel
thoroughly investigated the wire transfer and made every
plausible argument on movant's behalf. The wire transfer was a
subject of movant's appeal and, as the appellate court noted, the
evidence at trial included a copy of the wire transfer
authorizing wiring of funds to movant's account in Fort Worth and
a copy of his bank account statement reflecting a wire transfer
from HSBC Bank USA to his account. 622 F. App'x at 360. There was
never any question that movant received a wire to his Wells Fargo
account in Fort worth. Id. at 354. The evidence at trial
overwhelmingly established movant's guilt. And, venue in the
Northern District was proper as it is the place where defendant
orchestrated the crimes for which he was convicted. United States
v. Rogriguez-Moreno, 526 U.S. 275, 279
(1999); United States v.
Pace, 314 F.3d 344, 349-50 (9th Cir. 2002). Counsel cannot have
been ineffective for failing to raise meritless claims. United
States v. Kimler, 167 F.3d 889, 893
(st" Cir. 1999).
v.
Order
The court ORDERS that all relief sought by movant in his
motion under 28 U.S.C.
§
2255 be, and is hereby, denied.
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Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(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 January 23, 2017.
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