Owens v. USA

Filing 7

Memorandum Opinion and Order. The court ORDERS that all relief sought by movant in her motion under 28 U.S.C. § 2255 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (see order for specifics) (Ordered by Judge John McBryde on 8/4/2017) (mpw)

U.S. DISTRICT COUR1'
NORTHERN DISTRICT OF TEXAS

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I.,LED
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

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L,,::, DIUllUC'J' C01JRT

By

LEZLI OWENS,

-410~1

~puly

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Movant,

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vs.

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UNITED STATES OF AMERICA,

NO. 4:17-CV-473-A
(NO. 4:15-CR-214-A)

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§

Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Lezli Owens
("movant") under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence. After having considered such motion, the
memorandum in support,

the government's response, and pertinent

parts of the record in Case No. 4:15-CR-214-A, styled "United
States of America v. Lezli Owens, et al.," 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 16, 2015, movant and Caleb Smith were named in
a one-count indictment charging them with conspiracy to possess
with intent to distribute a controlled substance, in violation of

21 U.S.C.

§

846. CR Doc.' 18. On October 23, 2015, movant pleaded

guilty to the charge set forth in the indictment. CR Doc. 29.
Under oath, movant stated that no one had made any promise or
assurance of any kind to induce her to plead guilty. Further,
movant stated her 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 presentence report

("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 her guilty
plea; movant was satisfied with her counsel and had no complaints
regarding her 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. 83. The court accepted for filing the factual resume
movant and her attorney had signed on October 1, 2105. CR Doc. 83
at 22; CR Doc. 31.
The probation officer prepared a PSR that indicated that
movant's base offense level of 34 with a two-level enhancement
for use of a dangerous weapon in drug-trafficking and a two-level
enhancement for importation of methamphetamine from Mexico and a

'The "CR Doc._" reference is to the number of the item on the docket in the underlying
crimina I action.

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three-level reduction for acceptance of responsibility, for a
total offense level of 35. CR Doc. 39, PSR at 14-15,

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66-76.

Based on her total offense level and criminal history category of
IV, the guideline imprisonment range was 235 to 293 months;
however, the statutorily authorized maximum sentence of twenty
years reduced the guideline range to 235 months to 240 months.
Id. at 28,

~ 157.

The probation officer concluded with a

discussion of factors that might warrant upward departure and a
sentence outside the advisory guideline system. Id. at 30-31,
171-73. Following objections by movant,

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CR Doc. 62, the probation

officer issued an addendum to the presentence report. CR Doc. 43.
Movant again objected. CR Doc. 63. By order signed February 19,
2016, the court notified the parties that it had tentatively

concluded that the objections were without merit. CR Doc. 52.
On February 28, 2016, movant was sentenced to a term of
imprisonment of 240 months, to be followed by a three-year term
of supervised release. CR Doc. 58. Movant appealed and her
sentence was affirmed. CR Doc. 81. United States v. Owens, 672 F.
App'x 395 (5th Cir. 2016).

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II.

Grounds of the Motion
Movant urges four grounds in support of her motion, worded
as follows:
Ground One: Ineffective Assistance of Counsel
Pretrial Stage. Counsel Failed to File A Motion to
Suppress As Requested.
Doc.' 1 at Page 5 (preprinted numbers at top right corner of
form)
Ground Two: Ineffective Assistance of Counsel at
Sentencing Hearing.
Doc. 1 at Page 5.
Ground Three: Ineffective Assistance of Counsel.
The elements established in the factual resume and PSR
does [sic] not meet elements of conspiracy.
Doc. 1 at Page 8.
Ground Four: Ineffective Assistance of Counsel on
Direct Appeal.
Doc. 1 at second Page 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

2

The "Doc.

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

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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. 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
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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 her first ground, movant states that her counsel was
informed of an illegal stop, detention and seizure and was asked
to file a motion to suppress, but failed to do so. Doc. 1 at Page
4, supporting facts.

In her brief, movant describes stops on

August 7, 2014, and March 3, 2015, and conclusorily alleges that
evidence should have been suppressed and that the outcome would
have been different if suppression motions had been pursued.
However, conclusory allegations are insufficient to raise a
ground of ineffective assistance. Miller, 200 F.3d at 282. And,
in any event, by pleading guilty, movant waived all nonjurisdictional defects in the proceedings, including objections
to searches and seizures that violated the Fourth Amendment.
United States v. Cothran, 302 F.3d 279, 285-86

(5th Cir. 2002)

She cannot now complain about her attorney's failure to file a
motion to suppress. United States v. Daughenbaugh, 549 F.3d 1010,
1012

(5th Cir. 2008)
In her second ground, movant says that she received

ineffective assistance of counsel because the enhancements she
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received should not have been applied. Doc. 1 at Page 5. Movant
received a two-level enhancement for possession of a dangerous
weapon by another person involved in the drug conspiracy. USSG
2D1.1(b) (1); CR Doc. 39 at 14, ,

§

67. From the facts admitted by

movant, she could easily have foreseen the possession of the
weapon. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010); United States v. Garza, 118 F.3d 278, 286

(5th Cir. 1997).

Thus, application of the enhancement was appropriate. Movant also
received a two-level enhancement for importation of the
methamphetamine from Mexico. CR Doc. 39 at 14, , 68. Movant
herself reported that the methamphetamine she received came from
Mexican drug cartels. CR Doc. 39 at 8, , , 25-26. Movant's counsel
was not ineffective in the respects alleged in this ground. The
enhancements were properly applied.
In her third ground, movant asserts that the elements
established in the factual resume and PSR do not meet the
elements of conspiracy. Doc. 1 at Page 8. She argues that the
"government failed to offer in its factual resum [sic] any
evidence that the defendant was involved with two or more people
and they agreed in some way to try to accomplish a shared
unlawful plan to posses [sic] with intent to distribute
methamphetamine." Doc. 1 at 15 (typewritten page number at bottom
right corner) . In conclusion, she urges that there is not "a
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single paragraph or piece of evidence that conclusively proves a
conspiracy." Id. at 18. The argument ignores movant's admissions
in open court and the factual resume, which sets forth the
elements of the offense. CR Doc. 83; CR Doc. 31. Movant's
attorney cannot be faulted for failure to raise a meritless
objection. Clark v. Collins, 19 F.3d 959, 966

(5th Cir. 1994).

In the third ground, movant also alludes to fear tactics and
intimidation to coerce a guilty plea, but she offers no support
for these allegations. Doc. 1 at 17. It appears that this
language may have come from the Mercer case movant cites. United
States v. Mercer, 165 F. 3d 1331 (11th Cir. 1999) . 3 Here, movant
admitted in open court that she had not been coerced in any way
to plead guilty and that she was satisfied with her attorney. CR
Doc. 83.
In her fourth ground, movant appears to complain that her
attorney failed to file a motion for en bane consideration of her
appeal. Doc. 1 at Page 8. In her brief, she adds that counsel
should have attacked the unreasonableness of her sentence. Doc. 1
at 19-21. On appeal, counsel should raise solid, meritorious
arguments based on directly controlling precedent. United States
v. Williamson, 183 F.3d 458, 462

3

(5th Cir. 1999). Counsel need

Mercer is distinguishable for numerous reasons that the comi need not discuss here.
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not raise every nonfrivolous ground however. Id. Movant's counsel
did attack her within-guidelines sentence on appeal. The
appellate court noted that the sentence was presumptively
reasonable and that movant had not rebutted the presumption. 672
F. App'x at 396. Movant cannot now wage the same attack here.
Moore, 598 F.2d at 441. With regard to the allegation that her
counsel should have sought en bane consideration, movant has not
shown that the outcome of the appeal would have been different,
much less that such a request would have had any merit.'

v.
Order
The court ORDERS that all relief sought by movant in her
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 11(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

'After noting that movant had not filed a motion for en bane hearing, the Fifth Circuit said that it
was bound to follow United States v. Foulks, 747 F.3d 914 (5'" Cir. 2014), [the case movant now
references in her memorandum] absent an intervening change in law. United States v. Owens, 672 F.
App'x 395,396 (5'" Cir. 2016). Movant has failed to point out any such change.
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denial of a constitutional right.
SIGNED August 4, 2017.

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