Clark v. USA
Memorandum Opinion and Order...all relief sought under 28 USC 2255 denied; certificate of appealability denied. (Ordered by Judge John McBryde on 5/4/2017) (wrb)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MAY -4 2017
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Justin Clark
("movant•) under 28 U.S.C.
2255 to vacate, set aside, or
correct sentence. After having considered the motion, the
government's response, and pertinent parts of the record in Case
No. 4:15-CR-271-A, styled "United States of America v. Oscar
Vasquez, et al.," the court has concluded that the motion should
Information contained in the record of the underlying
criminal case discloses the following:
On December 9, 2015, movant was named with a number of other
defendants in a one-count indictment charging him with conspiracy
to possess with intent to distribute a controlled substance, in
violation of 21 U.S.C.
846. CR Doc.' 60. On January 27, 2016,
movant pleaded guilty to the indictment. CR Doc. 97. On June 6,
2016, movant was sentenced to a term of imprisonment of 293
months. CR Doc. 260; CR Doc. 262. Movant did not appeal.
Ground of the Motion
Movant asserts three grounds in support of his motion, all
alleging ineffective assistance of counsel. In his first ground,
movant says that his attorney failed to file a notice of appeal,
despite having been requested to do so. Doc. 2 1 at fourth page
(bearing typewritten "Page 5" notation). In his second ground, he
says that his counsel was ineffective for failing to raise on
appeal that the two-level enhancement movant received was
improper. Doc. 1 at fifth page (bearing typewritten "Page 6"
notation) . And,
in his third ground, movant says that his counsel
was ineffective for having failed to object to the presentence
report for failing to include a reduction based on mitigating
role in the offense "and/or pursuing same on direct appeal." Doc.
1 at sixth page (bearing typewritten "Page 7" notation). Notably,
the motion is not signed, although the form clearly requires the
'The "CR Doc. _" reference is to the number of the item on the docket in the underlying
criminal case, No.4: 15-CR-271-A.
"reference is to the number of the item on the docket in this civil action.
"Signature of Movant." Doc. 1 at twelfth page (bearing
typewritten "Page 13" notation). See Rule 2 (b) (5) of Rules
Governing Section 2255 Proceedings for the United States District
(requiring signature under penalty of perjury) .
Standard of Review
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
Shaid, 937 F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial
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,
1037 (5th Cir. Unit A Sept. 1981).
656 F.2d 1033,
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
Further, i f
issues "are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
(5th Cir. 1979)
Moore v. United States, 598 F.2d 439, 441
(citing Buckelew v. United States, 575 F.2d 515,
(5th Cir. 1978)).
Ineffective Assistance of Counsel
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. 133, 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."
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
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
of deficient performance and prejudice is not sufficient to meet
the Strickland test. Miller v. Johnson, 200 F.3d 274, 282
As noted, supra, movant failed to sign the motion under
penalty of perjury. Therefore, all relief must be denied.
Nevertheless, the court has considered the grounds of the motion
and finds that they would fail in any event.
In his first ground, movant makes the conclusory statement
that his counsel •failed to file a notice of appeal upon my
instructions to do so." Doc. 1 at fourth page (bearing
typewritten "Page 5" notation). He does not provide any details,
such as when the request was made and in what circumstances, much
less state that the request was timely made. The record reflects
that movant was made aware of his right to appeal and had
discussed it with his attorney. CR Doc. 371 at 15-16. Despite
having been apprised of the deficiencies in his motion by the
government's response, movant has failed to file a reply. Thus,
the court does not need to consider the affidavit of movant's
counsel, but merely notes that counsel says that movant
affirmatively determined not to appeal.
In his second ground, movant complains that his counsel
failed to perfect an appeal on the ground that the two-level
enhancement movant received under U.S.S.G.
2D1.1(b) (1) was
improper. The record reflects that such a ground would have been
frivolous. According to the presentence report, the offense
involved firearms and coconspirators confirmed that movant
possessed a firearm during the conspiracy and actually "shot up"
a game room where illegal substances were distributed. In
addition, related unindicted coconspirators and coconspirators
possessed firearms during the conspiracy that involved movant. CR
Doc. 134, , 50. Movant objected and the probation officer
submitted an addendum to the presentence report that clarified
the reasons for holding movant responsible for use of firearms.
CR Doc. 154 at 2. Specifically, movant was a distributor of drugs
and frequently maintained contact with coconspirators and
codefendants who possessed firearms during the conspiracy. Id.
Movant persisted in the objection and the court overruled it at
the sentencing hearing,
finding that movant's coconspirators and
codefendants used and possessed firearms during their drugtrafficking activities and it was reasonably foreseeable to
movant that they would do so, bearing in mind that firearms are
tools of the drug-trafficking trade for protection. CR Doc. 371
In his third ground, movant complains that his counsel
failed to object because movant should have received a reduction
in base offense level based on mitigating role in the offense.
Movant provides no facts or analysis in support of this argument.
His conclusory allegations of deficient performance of counsel
are insufficient to support any relief. Miller, 200 F.3d at 282.
The record reflects that such an objection would have been
frivolous in any event as the presentence report, adopted by the
court, states that movant did not qualify for a mitigating role
reduction. CR Doc. 134,
51. Movant admitted in his factual
resume that from February to May 2015, he received approximately
one pound of methamphetamine on a weekly basis that he then sold.
CR Doc. 98 at 2.
The court ORDERS that all relief sought in the motion under
2255 be, and is hereby, denied.
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.
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 May 4, 2017.
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