Orlowski v. USA
Filing
11
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 11(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 10/10/2017) (wxc)
IN THE UNITED STATES DISTRICT COU T
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
FRANK ORLOWSKI,
§
§
Movant,
§
§
vs.
§
§
UNITED STATES OF AMERICA,
NO. 4:17-CV-628-A
(NO. 4:14-CR-244-A)
§
§
Respondent.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Frank Orlowski
("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-244-A, styled
•united States of America v. Frank Orlowski, 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 December 17, 2014, movant was named along with two others
in a one-count indictment charging him with conspiracy to possess
with intent to distribute methamphetamine, in violation of 21
U.S.C.
§
846. CR Doc.' 1. On April 1, 2015, the government filed
a superseding information charging movant with possession with
intent to distribute methamphetamine, in violation of 21 U.S.C.
§
841(a)(1) and (b)(1)(C). CRDoc. 60. OnApril10, 2015, movant
appeared for arraignment on the superseding indictment. CR Doc.
63. Movant and his counsel signed a waiver of indictment, which
was affirmed in open court. CR Doc. 64. Movant and his counsel
signed a factual resume that was filed at the arraignment
hearing. CR Doc. 65. Movant, his counsel, and the government
signed and presented to the court a plea agreement, which was
then filed. CR Doc. 66. The plea agreement states that is was
freely and voluntarily made and not the result of force, threats
or promises, and that no guarantees or promises had been made by
anyone as to what sentence the court would impose. CR Doc. 66 at
5. Further, the agreement states that movant had thoroughly
reviewed all legal and factual aspects of his case with his
attorney and was fully satisfied with his attorney's
representation. Id.
On July 31, 2015, movant appeared for sentencing. CR Doc.
165. The court rejected the plea agreement because it could not
find that the plea agreement would not undermine the statutory
'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal action.
2
purpose of sentencing or the sentencing guidelines. Movant's
actual offense behavior would have a potential sentencing range
of up to life, whereas the plea agreement would cap the sentence
at 240 months. Id. at 4-7. Movant persisted in his plea of
guilty. Id. at B. The only objection to the presentence report
that he pursued was the objection regarding enhancement for
possession of a firearm. Id. at 9. Movant presented the testimony
of the lead investigator on the case, Kevin Brown, who testified
that he searched movant's vehicle and residence but did not
locate any firearms. Id. at 10-12. The agent believed that only
one other person he interviewed, Phillip Didier, mentioned that
movant possessed a firearm.
Id. at 13. The court requested a copy
of the interview or statement regarding the firearm, id. at 15,
and marked it as Court Exhibit 1. Id. at 15-16. Didier was a
customer of movant's for methamphetamine and had observed movant
with a .22-caliber handgun in the past. Id. at 18. Didier was in
possession of a gun and drugs when he was stopped after a visit
to movant's residence to obtain the drugs. Id. at 18-20. The
agent used Didier's statements to support his application for a
search warrant for movant's residence. Id. at 20-21. The court
noted that whether movant actually possessed a firearm, Didier,
who was engaged in jointly undertaken criminal activity, did
possess a firearm that could be attributed to movant. Id. at 303
31. Further, whether movant had pleaded guilty to a conspiracy or
not, the evidence showed that he was part of a conspiracy, "but
whether you call it that or not, it was certainly jointly
undertaken criminal activity that he was engaging in with Mr.
Didier and others." Id. at 31. The court overruled the objection,
relying on Didier's statement and also on information in the
presentence report establishing that movant should receive a twolevel increased under U.S.S.G.
1B1.3.
§
Id~
at 32. The court
adopted the facts set forth in the presentence report, as
modified or supplemented by the addendum, and as supplemented by
facts found from the bench. Id. at 33. Although the court
recognized that movant had provided substantial assistance, it
also found that movant had already been rewarded by the
government's charging decision. Id. at 33-34; 36-38. The court
imposed a term of imprisonment of 240 months to be followed by a
three-year term of supervised release. Id. at 37-38; CR Doc. 134.
Movant appealed and the judgment was affirmed. CR Docs. 175,
176; United States v. Orlowski,
667 F. App'x 849
(5th Cir. 2016).
II.
Grounds of the Motion
Movant did not file a motion using the proper form, but
rather a prolix thirty-seven page document, the gist of which
4
appears to be an attack on the performance of his counsel. Doc.'
1. As best the court can tell, movant urges that his counsel was
ineffective because movant received the firearm, drug
importation, and drug premises enhancements. Doc. 1 at 13. He
recognizes that the enhancement had to be proved by a
preponderance of the evidence, id. at 19, but then argues that
the appropriate standard is beyond a reasonable doubt, id. at 21.
And,
finally, movant appears to allege that his counsel failed to
conduct a proper investigation. Id. at 31-33.
III.
Applicable Legal Standards
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).
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"
'The "Doc. "reference is to the number of the item on the docket in this civil action. The
pages of the motion are unnumbered, so the court is using the numbers assigned by the ECF system as the
page numbers.
5
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 (Sa 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)
517-18
B.
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 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
6
Missouri v. Frye, 566 U.S. 133, 147 (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)
Strickland, 466 U.S. at 686).
(quoting
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
(5th Cir.
2000).
IV.
Analysis
The only facts alleged by movant have to do with his
behavior since his incarceration, Doc. 1 at 5, and his statement
7
that he was never in possession of a weapon,
id~
at 6. The
remainder of the motion is devoted to conclusory allegations
regarding the alleged failings of movant's counsel. These
allegations simply do not meet the test of Strickland. Miller,
200 F.3d at 282.
The record reflects that movant's counsel presented evidence
to support his objection to the firearm enhancement. Movant does
not spell out what more his counsel could or should have done.
The court considered the evidence presented and made further
inquiry. In addition, the court relied on information contained
in the presentence report as amended, as it was entitled to do.
United States v. Harris, 702 F.3d 226, 230-231 (5th Cir. 2012);
United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)
That movant's counsel did not prevail is not indicative of
ineffectiveness.'
Movant did not object at the sentencing hearing to
withdrawal of the other objections he had made. He received the
benefit of his counsel's earlier objections, which were partially
accepted in the addendum to the presentence report. CR Doc. 96.
Movant has not shown that the outcome of the proceeding would
'Movant did raise the firearm enhancement on appeal and did not prevail because he failed to
address each of the reasons given for the enhancement. 667 F. App'x at 849-50. Although potentially a
ground for ineffective assistance, movant has failed to point out the evidence that would have overcome
the reasons given for the enhancement. He simply makes conclusory arguments.
8
have been different had his counsel persisted in pursuing any
other objections.
To the extent movant alleges that his counsel failed to
conduct a proper investigation, his claim is wholly conclusory
and unsupported. The record reflects that his counsel pursued his
objection to the firearm enhancement and withdrew his other the
objections. CR Doc. 165 at 9. Although movant wishes that the
facts were different, the court adopted the fact findings set
forth in the presentence report and addendum, which belie the
allegations he now makes.
Movant's arguments regarding the burden of proof at
sentencing are wrong. Facts relevant to sentencing need only be
proved by a preponderance of the evidence. United States v.
Romans, 823 F. 3d 299, 316 (5th Cir. 2016). Moreover, the
guidelines are not subject to a vagueness challenge. Beckles v.
United States, 137 S. Ct. 886, 892
(2017). And, a challenge to
application of the guidelines is not cognizable under
§
2255 in
any event. United States v. Williamson, 183 F.3d 458, 462 {5th
Cir. 1999).
In his reply, movant takes up a new argument that he is or
was eligible for "safety valve" relief. However, the "safety
valve" provision of U.S.S.G.
§
5C1.2 permits the court to impose
a sentence below the mandatory minimum if the defendant did not,
9
among other things, have more than 1 criminal history point. 18
U.S.C.
§
3553(f) (1). Movant was not entitled to •safety valve"
consideration.
In sum, there is no evidence that had his counsel done
anything differently, the outcome of movant's case would have
been any different. His complaints relative to his counsel lack
merit.
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 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
denial of a constitutional right.
SIGNED October 10, 2017.
I
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