Newton v. USA

Filing 17

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. Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule ll(a) of the Rules Gover ning 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 7/24/2017) (edm)

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U.S. DISTR.fCTCCHJRT·--NORTHERJ<r D.~.STR.ici.or· ·fEXAS
IN THE UNITED STATES DISTRICT crJURT
.... .. ...
. ___
1
NORTHERN DISTRICT OF TEXAS
I
FORT WORTH DIVISION
JUL 2 4 2017
l

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i

ROYCE NEWTON,

CLER
, IK,

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By·--n:::==---Depuiy

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Movant,

,j

. c-'iSTIUCT COURT

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vs.

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UNITED STATES OF AMERICA,

NO. 4:17-CV-284-A
(NO. 4:15-CR-234-A)

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§

Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Royce Newton
("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. 4:15-CR-234-A, styled "United States of
America v. Royce Newton,• 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 October 14, 2015, movant was named in a one-count
indictment charging him with being a felon in possession of
firearms and ammunition in violation of 18 U.S.C.

§

922(g) (1). CR

Doc.' 12. On December 18, 2015, movant pleaded guilty to the
offense charged without benefit of a plea agreement. CR Doc. 28.
On April 1, 2016, movant was sentenced to a term of imprisonment
of 120 months. CR Doc. 46.

(The court would have imposed a

greater sentence, but was limited by the 10-year statutory
maximum for the offense of conviction. CR Doc. 53 at 5, 35-36.)
Movant filed a notice of appeal, CR Doc. 48, but later filed a
motion to dismiss it, which was granted. CR Doc. 56.
II.

Grounds of the Motion
Movant urges four grounds in support of his motion. First,
he says that the court denied him due process of law during
sentencing. As supporting facts, movant states:
The Court improperly considered uncharged conduct that
was revealed during Petitioner's immunized proffer
sessions with law enforcement agents. The statements
Petitioner made were immunized based on an agreement
entered into with the Government, which was brought to
the Court's attention by both the prosecutor and
defense counsel during the sentencing hearing.
Nevertheless, the Court relied on this information to
deny the Government's motion for downward departure
under U.S.S.G. § 5K1.1 and to sentence Petitioner to
the statutory maximum of 120 months imprisonment. The
Court also failed to consider the five assistance
related factors listed in § 5K1.1 when ruling on the
motion for downward departure.

'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: 15-CR-234-A.
2

Doc.' 1 at 4. Movant's second, third, and fourth grounds each
allege that he received ineffective assistance of counsel. In
ground two, movant says that his attorney failed to object to the
court's denial of the government's motion for downward departure
but should have done so on the same grounds as asserted in ground
one. Doc. 1 at 5. In ground three, he says his attorney failed to
object to the addendum to the presentence report that contained a
false statement from Nicholas Sides claiming he saw movant with
four pounds of methamphetamine and a person with a firearm. Doc.
1 at 7. And, in ground four, movant says his attorney failed to
object to the two-level enhancement for seeking to obtain and
possess three firearms, which should not have applied to him.
Doc. 1 at 8.
III.

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) .

'The "Doc.

A defendant can challenge his conviction or

"reference is to the number of the item on the docket in this action.
3

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

(5~

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)).
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
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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."

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
of deficient performance and prejudice is not sufficient to meet
the Strickland test. Miller v. Johnson, 200 F.3d 274, 282
Cir. 2000).

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(5'"

IV.
Analysis
Movant's first claim is one that could have been raised on
direct appeal and cannot be pursued here. United States v.
Williamson, 183 F.3d 458, 462

(5th Cir. 1999). If the claim had

merit (and it does not for reasons discussed infra) , the court
would have violated USSG

§

1B1.8. Misapplication of the

sentencing guidelines is not cognizable in

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2255 motions. Id.

Movant's second claim is that his attorney should have
objected to the court's denial of the government's motion for
downward departure. Movant argues that the court wrongly
considered statements movant made during immunized proffer
sessions with government agents in determining that the motion
should be denied. As made clear at the sentencing, the written
proffer agreement between movant and the government specifically
provided that the court could consider the information obtained
from movant in determining whether to grant a 5K1.1 motion.' CR
Doc. 53 at 29. Accordingly, movant's objection to the court's
authority to consider the information was withdrawn. CR Doc. 53
at 30. Counsel's withdrawal of a meritless objection does not

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The record reflects that the court would have imposed a sentence of 120 months even without
consideration of the proffer agreement information. CR Doc. 53 at 30.
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amount to ineffective assistance. United States v. Preston, 209
F. 3d 783, 785

(5th Cir. 2000).

As part of his second claim, movant also asserts that the
court failed to consider the five assistance-related factors
listed in section 5Kl.l in ruling on the motion for downward
departure and that his counsel should have objected on that
basis. A district court has almost complete discretion to deny a
5Kl.l motion and its decision is a violation of the law only if
the court mistakenly assumes that it lacks authority to depart.
United States v. Cooper, 274 F.3d 230, 248

(5th Cir. 2001). The

record reflects that the court thoroughly considered whether the
motion should be granted, never indicating any belief that it
lacked authority to do so. In any event, movant does not explain
why separate consideration of each of the listed factors would
have changed the result. Again, his counsel cannot have been
ineffective for failing to raise a frivolous objection. Preston,
209 F.3d at 785.
In his third ground, movant asserts that his counsel was
ineffective for failing to object to the second addendum to the
presentence report, CR Doc. 42, containing a statement of
Nicholas Sides claiming that he saw movant with four pounds of
methamphetamine and another person with a firearm. Movant says
that he never met Sides. The second addendum does not say that
7

Sides ever met movant, only that he observed him. In any event,
movant's conclusory allegation is insufficient to support his
claim of ineffective assistance. Miller, 200 F.3d at 282.
Finally, movant alleges that his counsel was ineffective in
failing to object to the two-level enhancement under USSG
2K2.1(b) (1)

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for possessing at least three firearms during the

offense. He says that the .380 Walther pistol was not included in
the indictment and should not have been considered because it
belonged to his girlfriend. Again, movant offers nothing but
conclusory allegations in support. The information contained in
the presentence report was reliable and adopted by the court. The
court was not limited to the facts alleged in the indictment or
factual resume. USSG

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1B1.3; USSG

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1B1.4. Movant has not shown

that he received ineffective assistance in this regard.
As the court pointed out at sentencing, movant's counsel
likely immunized him from 15 or 20 years' of imprisonment that
movant otherwise might have been subject to. CR Doc. 53 at 30-31.
Movant has not shown that he received ineffective assistance of
counsel.

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 July 24, 2017.

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