Sweatt v. USA

Filing 9

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. The court further ORDERS that movant's motions to supplement and amend and to require production be, and are hereby, denied. the court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 11/28/2017) (bdb)

,-~. U.S. DISTRICT COURT
i
i

NORTHERN DrSTRICT OF TEXAS

FT' ·pn

IN THE UNITED STATES DISTRI[CT cor~"''Lc<.'c:·::_l
NORTHERN DISTRICT OF TEXAS
,
I
FORT woRTH DivisioJ;
2 8 2017 :

LOV

/

RONALD SWEATT,

l:=

§
§
§

Movant,

CLEbc, u.s. DISIRICT c~URT
Deputy

§

vs.

§
§

UNITED STATES OF AMERICA,

NO. 4:17-CV-725-A
(NO. 4:16-CR-074-A)

§
§
§

Respondent.

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

§

2255 to vacate, set aside, or

correct sentence. After having considered such motion, its
supporting amended memorandum, the government's response, the
appendix in support, and pertinent parts of the record in Case
No. 4:16-CR-074-A, styled "United States of America v. Ronald
Sweatt,• 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 April 5, 2016, movant was named in a one-count indictment
charging him with production of child pornography, in violation

I

~--J

of 18 U.S.C.

§§

2251(c) and 225l(e). CR Doc.' 14. On May 13,

2016, movant entered a plea of guilty to the charge of the
indictment. CR Doc. 21, 46. 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. CR Doc. 46.
On October 7, 2016, movant appeared for sentencing and was
sentenced to a term of imprisonment of 360 months, to be followed
by an eight-year term of supervised release. CR Doc. 41, 43, 47.
Movant did not appeal.
II.

Grounds of the Motion
Movant asserts four grounds in support of his motion:

'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: 16-CR-074-A.
2

First, he says that there was prosecutorial misconduct. As
supporting facts, he alleges that the "United States Attorney
suborned perjury by allowing witness(es) at sentencing to give
false testimony/statements" and that the U.S. Attorney "made
false statements stating 'high risk of recidivism' based on facts
or evaluation. No evaluation was ever performed." Doc.' 1 at
typewritten page 5. 3
Second, movant alleges that he received ineffective
assistance of counsel. As supporting facts, he says that his
court-appointed attorney suggested he not seek or pursue a
psycho-sexual evaluation; did not apprise him of his right to
review the evidence against him; and did not strenuously object
to incorrect/false information in his presentence investigation
report ("PSR"). Doc. 1 at typewritten page 6.
Third, movant alleges that the court lacked personal or
subject matter jurisdiction, because the crime of his conviction
was committed in another country. Doc. 1 at typewritten page 7.
And, fourth, movant alleges that there was judicial
misconduct, because the court relied upon incorrect/false
information when sentencing and allowed the prosecutor to give

2

The "Doc.

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

3

The top of the form movant filed bears typewritten page numbers. The first page of the
document constituting movant's motion bears the typewritten notation "Page 2." Doc. I.
3

and allow false testimony. He says the "Order of the Court
makes/contains false statements not supported by evidence or by
evaluation which was never completed." Doc. 1 at typewritten page
9.

III.
Applicable Legal Principles
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"
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,
miscarriage of justice.

if condoned, result in a complete

United States v. Capua, 656 F.2d 1033,

1037 (5th Cir. Unit A Sept. 1981).

4

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
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
5

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

(5th

Cir. 2000).
IV.

Analysis
Movant•s first and fourth claims are wholly conclusory and
unsupported and therefore subject to summary dismissal.
Blackledge v. Allison, 431 U.S. 63, 74

(1977). His first ground

simply alleges that the government suborned perjury, but gives no
explanation of what he means. Movant does not identify any
particular witness' or what testimony is alleged to be false. He
says that the government's attorney made false statements
regarding movant•s high risk of recidivism, but he does not give

4

ln fact, it is not clear how many witnesses movant is talking about, inasmuch as he uses the term
"witness(es)" when clearly the information is within movant's personal knowledge.
6

any further explanation. His fourth ground is similarly vague. He
says that the court relied on •incorrect/false information'' but
does not describe the information to which he refers. Doc. 1 at
typewritten page 9. He refers to an "Order" but does not describe
the document he references; nor does he explain what false
statements are contained therein.
The record does not support and, in fact refutes, movant's
allegations. The record does not reflect that the government made
any statements about movant's risk of recidivism; rather, those
statements were made by movant•s counsel. CR Doc. 47 at 12-13.
Moreover, one of movant•s victims and her mother allocuted at
sentencing and movant did not contradict their statements.
Rather, he acknowledged that he hurt them and many others and
that it would be practically impossible for them to ever forget
what happened. CR Doc. 47 at 21-22. He concluded by saying,
"Today,

I deserve everything that I'm going to get, and I accept

it fully, and that's about all." Id. at 22. "Solemn declarations
in open court carry a strong presumption of verity." Blackledge,
431 U.S. at 74. The statements made in the motion are
insufficient to overcome them.
Movant's second ground likewise makes conclusory allegations
insufficient to raise a constitutional issue. Miller, 200 F.3d at
282. Movant simply says that his attorney advised him not to seek
7

a psycho-sexual evaluation, but offers no evidence to show that
such an evaluation would have been favorable to him. Based on the
facts set forth in the PSR, it appears highly unlikely that there
could have been any evaluation favorable to movant. The second
basis for the claim--that counsel did not tell movant he had a
right to review the evidence--fails to establish deficient
performance by his attorney. Movant does not say how knowing
about the right to review evidence would have affected the
outcome in any way. And, finally, movant says that his attorney
was ineffective in failing to •strenuously object to
incorrect/false information• contained in the PSR. Movant does
not describe what information he says was false or what the
objection should have been or how any such objection would have
affected the outcome. The record reflects that movant questioned
the accuracy of some of the things the probation officer reported
that a victim said and that movant continued to disagree with
those statements. CR Doc. 47 at 4-5. As the court noted, that
victim was present to allocute at the sentencing and movant could
have made whatever response he thought appropriate. Id.
And, movant•s third ground alleging lack of personal or
subject matter jurisdiction is simply wrong. A district court's
jurisdiction extends to all crimes cognizable under the authority
of the United States. United States v. Scruggs, 691 F.3d 660,
8

667-68

(5th Cir. 2013). In other words, to confer subject matter

jurisdiction, an indictment need only charge a defendant with an
offense against the United States in language similar to that
used by the statute. Id. at 668. Any argument that an indictment
does not charge an offense against the United States simply goes
to the merits of the case. United States v. Cotton, 535 U.S. 625,
630-31

(2002). Here, the indictment clearly tracked the statute,

which prohibited the conduct in which movant admittedly engaged.
CR Doc. 14; 22.

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.

The court further ORDERS that movant's motions to supplement
and amend and to require production be, and are 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

9

denial of a constitutional right.
SIGNED November 28,

2017.

10