Israel v. USA

Filing 12

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 8/8/2017) (tln)

U.S. DISTRICT COURT
. NORTiffiRN DISTRICT OF TTIXAS

FILED

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IN THE UNITED STATES DISTRICT CO
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

«·-~·l

L_~UG - 8 2017 ... I
CLERK, U.S. DISTKfCT COlJlZT
BY------~~--------­
Depuly

KAMAU ALAN ISRAEL,

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Movant,

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vs.

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UNITED STATES OF AMERICA,

NO. 4:17-CV-409-A
(NO. 4: 14-CR-240-A)

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§

Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Kamau Alan Israel
(•movant") under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence. After having considered such motion, its
supporting memorandum, the government's response, the reply, and
pertinent parts of the record in Case No. 4:14-CR-240-A, styled
•united States of America v. Kamau Alan Israel," 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 December 10, 2014, movant was named in a one-count
indictment charging him with bank robbery in violation of 18
U.S.C.

§

2113(a). CR Doc.' 12. On January 9, 2015, movant pleaded

'The "CR Doc._" reference is to the number of the item on the docket in the underlying
(continued ... )

guilty to the offense charged without benefit of a plea
agreement. CR Doc. 19. 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. 55, passim. Having heard and considered the testimony and
statements of counsel at the hearing, the court found that
defendant was fully competent and capable of entering an informed
plea; that his plea was knowing and voluntary; and that his ploea
did not result from force, threats, or promises. CR Doc. 55 at
31-32.
After his plea and before his sentencing, movant twice wrote
to the court. CR Doc. 23; CR Doc. 33. The first letter pointed

'( ... continued)
criminal case, No. 4: 14-CR-240-A.
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out movant's past psychiatric issues, but gave no indication that
he was presently suffering from any such issues or had been at
the time he committed the robbery. The second letter complained
of movant's counsel not following the strategy movant wished to
pursue. The court directed movant's counsel to meet with movant,
which he did, reporting that the differences between them had
been resolved. CR Doc. 36.
The presentence report addressed movant's mental health. CR
Doc. 24. Movant did not object to any of the statements on that
subject. CR Doc. 26.
On April 24, 2015, movant appeared for sentencing and,
although given an opportunity to speak, did not raise any issue
regarding his competence at any time or any dissatisfac'tion w:i.th
counsel. CR Doc. 56. He was sentenced to a term of imprisonment
of 240 months. CR Doc. 47. He appealed, arguing that his sentence
was procedurally and substantively unreasonable. In particular,
he argued that the court should have considered his mental
illness as a mitigating factor. United States v. Israel, 637 F.
App'x 145, 146

(5'h Cir. 2016). The judgment was affirmed.

CR Doc. 58.

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Id.;

II.

Grounds of the Motion
Movant urges four grounds in support of his motion, worded
as follows:
Ground One: INEFFECTIVE ASSISTANCE OF COUNSEL/FAILURE
TO INVESTIGATE
Ground Two: INEFFECTIVE ASSISTANCE OF
COUNSEL/COMPETENCY HEARING
Ground Three: INEFFECTIVE ASSISTANCE OF
COUNSEL/INSANITY DEFENSE
Ground Four: INEFFECTIVE ASSISTANCE OF
COUNSEL/MITIGATING FACTORS
Doc.' 1, pages 7 of 10 and 8 of 10. The motion has attached to it
a number of items beginning with a page marked (at the top right
corner)

"PAGE 11 of 66" and concluding with "PAGE 66 of 66."
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 civil action.
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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)).
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
Missouri v. Frye, 566

u.s.

133, 132

s.

(1984); see also

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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(5th

IV.

Analysis
Movant's argument is very disjointed and appears to be the
result of a cut and paste effort, but, as best the court can
tell, the basis of the argument is that movant was incompetent at
the time he committed the robbery of which he was convicted. He
urges that his attorney was aware of this fact, but failed to
properly investigate and present evidence of his insanity. None
of the allegations he makes or the attachments to the motion are
sufficient to establish his right to relief.
At the conclusion of the rearraignment hearing, the court
found that movant was fully competent and capable of entering an
informed plea, that his plea was knowing and voluntary, and did
not result from force,

threats or promises. CR Doc. 55 at 31-32.

This was after movant had testified that he did not suffer from
any kind of emotional or mental disability and that he considered
himself to be of sound mind and his attorney had affirmed that he
had no reason to think that movant was not fully competent to
enter into a guilty plea or that such a plea would not be a
knowing and voluntary one. CR Doc. 55 at 21. Movant cannot now be
heard to refute his testimony given in open court under oath.
United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985).

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Movant's complaints about his attorney are wholly
conclusory. There is no reason to believe that counsel did not
conduct a proper investigation or that his tactical decisions
were not reasonable ones. See Riley v. Dretke, 362 F.3d 306 (5th
Cir. 2004). The record reflects that movant's counsel was aware
of movant's mental health issues. CR Doc. 55 at 22-23. Movant's
bald assertions that his attorney failed to properly investigate
or present evidence regarding his competency are insufficient to
raise a constitutional issue. United States v. Pineda,
22, 23

988 F.2d

(5th Cir. 1993); Ross v. Estelle, 694 F.2d 1008, 1011 (5th

Cir. 1983).
Movant relies heavily on Bouchillon v. Collins, 907 F.2d 589
(5th Cir. 1990). However, that case is not analogous to this one.
In Bouchillon, the trial court made no finding as to the
defendant's competence. 589 F.2d at 591. See Moore v. Dretke, 182
F. App'x 329, 337 (5th Cir. 2006) (distinguishing Bouchillon
because there had been no finding of competence in that case)
Here, the court found movant to be competent and that finding is
entitled to a presumption of correctness. See United States v.
Flares-Martinez, 677 F. 3d 699, 706

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(5th Cir. 2012).

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.

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 August 8, 2017.

States District

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