Ivory v. USA
MEMORANDUM OPINION AND ORDER denying 1 Motion to Vacate. (Ordered by Judge John McBryde on 6/27/2017) (npk)
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Kyston Ivory
("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-174-A, styled "United States of
America v. Kyston Ivory," the court has concluded that the motion
should be denied.
Information contained in the record of the underlying
criminal case discloses the following:
On July 15, 2015, movant was named in a one-count indictment
charging him with bank robbery in violation of 18 U.S.C.
2113(a). CR Doc. 1 10. Attorney Catherine R. Dunnavant was
The "CR Doc._" reference is to the number of the item on the docket in the underlying
(continued ... )
appointed to represent him. CR Doc. 3. On August 28, 2015, movant
appeared before the court with the intent to enter a plea of
guilty to the offense charged without benefit of a plea
agreement. CR Doc. 17. Under oath, movant stated that no one had
made any promise or assurance of any kind to induce him to plead
guilty. Further, movant stated his understanding that the
guideline range was advisory and was one of many sentencing
factors the court could consider; that the guideline range could
not be calculated until the PSR was prepared; the court could
impose a sentence more severe that the sentence recommended by
the advisory guidelines and movant would be bound by his guilty
plea; movant was satisfied with his counsel and had no complaints
regarding his representation; and, movant and counsel had
reviewed the factual resume and movant understood the meaning of
everything in it and the stipulated facts were true and accurate.
CR Doc. 38.
The probation officer prepared a presentence report that
indicated that movant's base offense level was 20 with a twolevel enhancement for property taken from a financial
institution, a two-level enhancement for threatening to use a
gun, and a three-level reduction for acceptance of
responsibility, for a total offense level of 21. CR Doc. 22, PSR
at 7. Based on his total offense level and criminal history
category of II, the guideline imprisonment range was 41 to 51
months. Id. at 15,
78. The probation officer concluded with a
discussion of factors that might warrant upward departure and a
sentence outside the advisory guideline system. Id. at 16-17, ~~
91-92. Movant had no objections to the PSR, but asked the court
to consider factors in mitigation that he said would be presented
in a sentencing memorandum. CR Doc. 31. On December 28, 2015,
movant submitted his sentencing memorandum. CR Doc. 32. By order
signed December 31, 2015, the court gave notice that it had
tentatively concluded that a sentence of imprisonment
significantly above the top of the advisory guideline
imprisonment range would be appropriate. CR Doc. 25.
At sentencing, the court adopted the findings and
conclusions of the presentence report, and noting a great deal of
concern regarding movant's participation in other uncharged
robberies that occurred while he was on deferred adjudication for
two offenses of burglary of a habitation as well as his
membership in the Como Crips gang, sentenced movant to a term of
imprisonment of 80 months. CR Doc. 39. Movant appealed, but his
attorney filed a motion to withdraw along with an Anders 2 brief.
The court of appeals agreed with her assessment that the appeal
presented no nonfrivolous issue for appellate review. CR Doc. 45.
On October 18, 2016, the appeal was dismissed as frivolous. CR
Grounds of the Motion
Movant urges two grounds in support of his motion, worded as
Ground One: The sentence attached to the instant
case, as is, serves to violate due process, based upon
the premise, that it was increased resulting from an
Abuse of Discretion by the trial court, with the use of
an "arbitrary" statute of law.
Doc. 3 1 at Page 5 (numbers at top right of each page)
Ground Two: The sentenced [sic] imposed in
relation to the instant matter, results from
"ineffective assistance of counsel," which serves as a
significant violation of the 6th Amendment right to
Doc. 1 at Page 6.
Anders v. California, 386 U.S. 738 (1967).
" reference is to the number of the item on the docket in this civil action.
Standards 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,
(5th Cir. 1991).
937 F.2d 228, 231-32
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, 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).
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,
517-18 (5th Cir. 1978)).
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. 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
The gist of movant's argument, as best the court can tell,
is that movant did not gain any benefit from pleading guilty
since the court sentenced him above the guideline range. Of
course, he overlooks that he could have received an even greater
sentence had he gone to trial. Movant throws out words like
"arbitrary" and "unconstitutional" but offers nothing more than
conclusory allegations that do not raise a constitutional issue.
United States v. Pineda, 988 F.2d 22, 23
Cir. 1993). The
argument refers to a plea agreement, but movant had none. The
record reflects that movant received the process he was due and
that he knowingly and voluntarily entered into his plea. That
movant is unhappy with his sentence does not mean that he has a
cognizable habeas claim.
Movant's second claim, that he received ineffective
assistance of counsel, is dependent upon the first and is thus
without merit. Movant has not presented any evidence to show that
had his counsel done anything differently, the outcome of
movant's case would have been any different.
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 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 June 27, 2017.
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