Weast v. USA

Filing 16

Memorandum Opinion and Order..motion for leave denied; all relief sought under 28 USC 2255 denied. COA denied. (Ordered by Judge John McBryde on 1/23/2018) (wrb)

U.S. DISTJUCT COURT
NORTHERN DJS TRI CT OF TEX\S

FIT c:;r)

-.~c!.'o'.'·"..--~1

N 2 3 2018 ,
i
IN THE UNITED STATES DISTRICT CO RT
I
NORTHERN DISTRICT OF TEXAS
....
. I
FORT WORTH DIVISION
CLERK, U.S. DlSTRlCT COU!ff
CHRISTOPHER ROBERT WEAST,

§
§

Movant,

§
§

vs.

§

UNITED STATES OF AMERICA,

§
§

NO. 4:17-CV-802-A
(NO. 4:14-CR-023-A)

§

Respondent.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Christopher Robert
Weast

("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-023-A, styled
"United States of America v. Christopher Robert Weast," 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 February 12, 2014, movant was named in a one-count
indictment; on May 14, 2014, movant was named in a two-count
superseding indictment; on June 11, 2014, movant was named in a
two-count second superseding indictment; and, on July 1, 2014,

[
I

movant was named in a two-count third superseding indictment. CR
Docs.' 1, 57, 85, 103. The third superseding indictment charged
movant with possession of child pornography in violation of 18
U.S.C.

§§

2252A(a) (5) (B) and 2252A(b) (2), and receipt of child

pornography, in violation of 18 U.S.C.

§§

2252A(a) (2) (A) and

2252A(b) (1). CR Doc. 103.
Throughout the course of the proceedings (and continuing to
date), movant filed numerous frivolous papers. He refused to
cooperate with counsel and a court-appointed forensic examiner,
denied that he was the true defendant, filed counterclaims
against the government, moved to dismiss the charges based on
purported lack of jurisdiction, sought emergency writs and stays,
and requested the "bond policy numbers" of the prosecutor,
probation officer, defense counsel, and presiding judges. See,
CR Docs. 26, 33, 35, 38-41, 46, 49-50, 54-56, 59, 61, 75,

~,

95, 96,

98, 100, 127, 135-37, 147-48, 153, 155, 159, 166, 175-81,

197-99, 201-03, 216-17, 219, 229-33, 236-39, 247-49, 251-56, 264,
266-70, 272-81, 285-90, 292, 319-21, 323-77, 388-95, 397-446,
448.
The court, through the magistrate judge, initially
determined that movant had knowingly and voluntarily waived his

1

The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal action, No. 4: l 4-CR-023-A.
2

right to representation by court-appointed counsel and allowed
f

movant to represent himself. CR Doc. 43. The judge then presiding
recused and the case was assigned to the docket of the
undersigned. CR Doc. 67. The court set a hearing to consider
whether movant should be allowed to continue to represent
himself. CR Doc. 69. Following the hearing, the government filed
a motion for mental competency examination of movant. CR Doc. 77.
The court granted the motion and appointed the Federal Public
Defender to represent movant in connection with the competency
proceedings. CR Doc. 78. At the hearing on July 8, 2014, the
forensic psychiatrist appointed to conduct an evaluation of
movant testified that movant had the ability to control his
conduct but chose to engage in conduct designed to obstruct the
proceedings. CR Doc. 110 at 24. The court determined that it
could not find from the evidence that movant was incompetent. CR
Doc. 110 at 28. And, the court appointed the Federal Public
Defender to represent movant at trial, since it appeared that
movant would not be able to participate in the trial in the
courtroom, given his conduct. CR Doc. 110 at 39-40; CR Doc. 125
(explaining in detail movant•s conduct up to that time).
Trial was conducted on July 28 and 29, 2014. CR Docs. 204,
209. On July 29, 2017, the jury returned its verdict of guilty as
to each count of the third superseding indictment and a special
3

I

I

I

I

verdict as to items to be forfeited. CR Docs. 211, 213. Movant
was sentenced to a term of imprisonment of 120 months as to count
one and 240 months as to count two, to run consecutively for a
total of 360 months' imprisonment. CR Doc. 283. Movant appealed
and his judgment was affirmed. United States v. Weast, 811 F.3d
743

(5th Cir. 2016). The Supreme Court denied his petition for

writ of certiorari. 137 S. Ct. 126 (2016).
II.
Grounds of the Motion
In his motion, movant sets forth four grounds for relief.
Doc. 2 1. They are:
(1) Movant was denied his right to effective assistance
of counsel as guaranteed by the sixth Amendment to the
United States Constitution.
(2) The trial court erred when it increased Movant's
base sentencing guideline range rive levels for
distribution and exchanging pornographic materials and
exchanging for a thing of value pursuant to USSG
§ 2G2. 1.
(3) The trial court erred in refusing to let defense
counsel ask a computer expert for the defense whether
or not there were viruses on Movant•s confiscated
computer.
Id. at 7.
(4)Movant•s sentence is substantively unreasonable and
excessive.

2

The "Doc.

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

4

Id. at 8.
In the supporting memorandum attached to the motion, movant
asserts two additional grounds. They are:
(5) Movant was denied his right to Due Process of the
Law as guaranteed by the Constitution of the United
States.
Id. at 27.
(6) Movant was subjected to double jeopardy in
violation of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution.
Id. at 28.
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).

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.

5

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)
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
Missouri v. Frye, 566 U.S. 133, 147 (2012). "[A] court need not
determine whether counsel's performance was deficient before
6

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

(5u Cir.

2000).
IV.

Analysis
A.

Ineffective Assistance
Movant first addresses ineffective assistance of counsel,

arguing that his counsel "made several crucial errors and

7

omissions which, had they not been made, probably would have
resulted in an acquittal." Doc. 1 at 14.
Movant says that at some unidentified point in time his
counsel told him that the government had offered him a 10-year
plea deal, but that counsel had also informed him that the
maximum sentence he faced was ten years. He did not know that he
faced a thirty-year sentence and if he had known, he would have
accepted the plea deal. Doc. 1 at 15. The allegations are wholly
uncorroborated and incredible. The record reflects that on May
28, 2014, after the first superseding indictment had been filed,
and at a time that movant represented himself, the court
specifically admonished movant that he faced up to 30 years'
imprisonment. Doc. 108 at 6-7. The second and third superseding
indictments presented the same charges with the same penalties.
Movant continued to represent himself.
On July 8, 2014, the court conducted a hearing on the issue
of movant's competency. CR Doc. 110. The court heard testimony
from Dr. Randall Rattan, the forensic psychologist appointed to
evaluate movant. Besides testifying that there was no predicate
to say that movant was incompetent, id. at 20, Dr. Rattan
testified that movant's disruptive courtroom behavior was a
tactic to obstruct the trial and that movant •certainly
controlled his conduct reasonably well" while incarcerated, id.
8

at 24. Having determined that it could not find that movant was
mentally incompetent, the court proceeded with arraignment on the
third superseding indictment. Id. at 28-29. The prosecutor read
the third superseding indictment and detailed the penalties
movant faced as to each count, totaling thirty years'
imprisonment. Id. at 31-41. The penalties were also set forth in
the court's order of July 15, 2014. CR Doc. 125 at 36.
Movant cannot now claim that he did not know the penalties
he faced. Nor can he plausibly contend that he was offered a tenyear plea deal. The Federal Public Defender was appointed to
represent him after the superseding indictments had been
returned. Further, the record reflects that movant refused to
communicate with his appointed counsel, making the allegation
that they discussed a plea offer unbelievable. CR Doc. 112.
Moreover, given movant's behavior throughout the proceedings, it
is ludicrous to suggest that movant would ever have accepted a
plea agreement had one been offered.
Movant next urges that his counsel failed to object to the
court's closure of jury voir dire to the public. Doc. 1 at 15-17.
However, voir dire was not closed. Rather the transcript of the
proceedings was sealed to protect personal information of the
jurors and those on the panel from which the jury was selected.
CR Doc. 228. As stated, the court is not considering new
9

arguments made in movant's reply that were wholly unsupported in
the motion.
Movant's third allegation concerns alleged repetitious and
futile objections by one of his trial attorneys. Doc. 1 at 17.
The allegation is conclusory and lacking in detail to support any
claim of ineffective assistance. Miller v. Johnson, 200 F.3d 274,
282

(5th Cir. 2000).
Movant's fourth allegation is incomprehensible, apparently

asserting that counsel erred in characterizing "prosecutorial
error" as "prosecutorial misconduct." Doc. 1 at 17. In any event,
the Fifth Circuit examined the prosecutor's closing argument on
appeal and determined that the comments did not justify reversal.
811 F.3d at 752-53.
The fifth allegation is likewise conclusory, stating simply
that movant's counsel failed to object to the court's draconian
sentencing of movant. Doc. 1 at 18. The record belies the claim.
CR Doc 318 at 51. Moreover, movant's within-guideline range
sentence is presumptively reasonable. United States v. MondragonSantiago, 564 F.3d 357, 360 (5th Cir. 2009).
Movant next urges that his counsel was ineffective in
refusing to investigate that movant had reported prior instances
of child pornography to the police and FBI. Doc. 1 at 18. The
allegation is unsupported. Moreover, there is no reason to
10

believe that this information would have had any relevance to the
case.
Finally, movant says that his counsel failed to investigate
his competency. Doc. 1 at 18-19. Again, the allegations are
conclusory. The record reflects that movant was not allowed to be
in the courtroom because he refused to conduct.himself properly.
His counsel did the best they could given movant's refusal to
cooperate. Movant simply has not shown that he was prejudiced by
the conduct of his counsel.
B.

Guidelines
Movant urges in his second ground that the court erred when

it applied a five-level enhancement for distributing child
pornography under USSG

§

2G2.1. Challenges to the court's

guideline calculations are not cognizable under
States v. Williamson, 183 F.3d 458, 462

§

2255. United

(5th Cir. 1999). In his

reply, movant contends for the first time that this ground was
part of his ineffective assistance of counsel claim, when clearly
it was not. 3 Movant could not prevail in any event. He persisted
in his objections and they were overruled. CR Docs. 246, 250,
260, 263, 318. The evidence supported the five-level enhancement
and movant has not shown that the outcome of his appeal would
3

Movant says that the government "again fails to comprehend [his] claim regarding counsel's
ineffective assistance" when no such claim was made in the motion. Doc. 15 at 10. False allegations
permeate the reply. E.g., id. at 4-5 (alleging that movant was not disruptive).
11

have been different had the issue been pursued. Rather, Fifth
Circuit precedent supports the court's ruling. See United States
v. Onken, 440 F. App'x 304

(5th Cir. 2011); United States v.

Sistrunk, 37 F. App'x 88, 2002 WL 971623
C.

(5th Cir. 2002).

Examination of Witness
In his third ground, movant urges that the court erred in

refusing to let defense counsel ask certain questions of a
computer expert. This ground was raised on appeal. 811 F.3d at
750-51. It cannot be relitigated here. United States v. Kalish,
780 F.2d 506,

508

(5th Cir. 1986); Moore, 598 F.2d at 441. Nor

will the court consider the argument, urged for the first time in
the reply, that counsel was ineffective in this regard. In any
event, the appellate opinion makes clear that movant could not
have prevailed on such argument. 811 F.3d at 750-51.
D.

Sentence
In his fourth ground, movant says that his sentence is

unreasonable and excessive. The claim is procedurally barred.
And,

in any event, movant could not show cause and prejudice.

United States v. Guerra, 94 F.3d 989,

993-94

(5th Cir. 1996).

Movant's sentence was within the guidelines and is presumptively
reasonable. Mondragon-Santiago, 564 F.3d at 360.

12

E.

Due Process
Movant•s fifth ground is couched in terms of an alleged

denial of due process, but he is apparently arguing that the
court erred in refusing to allow the Federal Public Defender to
withdraw as his counsel. This argument should have been raised on
appeal, Davis, 417 U.S. at 345, but is unsupported in any event.
The record clearly reflects why the court denied the motion to
withdraw. See, e.g., CR Docs. 108, 110, 125.
F.

Double Jeopardy
Movant finally urges that he was subjected to double

jeopardy, arguing that receipt and possession of child
pornography contain the same elements. The claim is meritless
because movant's convictions were based on different images that
he possessed on different dates. CR Doc. 103. United States v.
Sturm, 673 F.3d 1274, 1288 (10th Cir. 2012); United States v.
Mooneyham, No. V-08-1, 2012 WL 3257804, at *18

(S.D. Tex. July 2,

2012) .

v.
Motion for Leave to Amend
Along with his reply, movant filed yet another motion for
leave to amend his

§

2255 motion. The time for filing a proper

motion has expired. MoVant has not shown that he is entitled to
add yet another ground, especially a frivolous one.
13

VI.

Order
The court ORDERS that movant's motion for leave to amend be,
and is hereby, denied.
The court further 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 January 23, 2018.

14