Graydon v. USA

Filing 11

MEMORANDUM OPINION AND ORDER: The court ORDERS that movant's motion under 28 U.S.C. § 2255 be, and is hereby, dismissed without prejudice. 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 1/5/2018) (tln)

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IN THE UNITED STATES DISTRICT !COURT/
NORTHERN DISTRICT OF TEX1S CLF '.,:
FORT WORTH DIVISION {_ By A"" U,s. DrsnucTcornu
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Depu1y

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PATRICK LEE GRAYDON,

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Movant,

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vs.

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UNITED STATES OF AMERICA,

NO, 4:17-CV-879-A
(NO, 4: 16-CR-136-A)

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Respondent,

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Patrick Lee Graydon
("movant") under 28 U.S,C.

§

2255 to vacate, set aside, or

correct sentence. After having considered such motion, the
government's response, and pertinent parts of the record in Case
No, 4:16-CR-136-A, styled "United States of America v. Patrick
Lee Graydon, et al.," the court has concluded that the motion
must be dismissed.

Background
Information contained in the record of the underlying
criminal case discloses the following:
On June 7, 2016, movant was named in a one-count information
charging him and a co-defendant, Tammy Sue Janicek, with
conspiracy to possess with intent to distribute a controlled

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substance, in violation of 21 U.S.C.

§

846. CR Doc.

1

117. On June

21, 2016, movant entered a plea of guilty and signed a written
waiver of indictment, CR Doc. 123, and a factual resume setting
forth the elements of the offense and stipulated facts, CR Doc.
124. On November 18, 2016, movant was sentenced to a term of
imprisonment of 240 months. CR Doc. 159. Movant appealed, CR Doc.
163, but the appeal was dismissed as of April 5, 2017, based on
movant's own motion. CR Doc. 176. 2
On October 30, 2017, movant filed his motion to set aside,
vacate, or correct sentence under 28 U.S.C.

§

2255. CR Doc. 187;

Doc. 3 1. Because the motion purported to raise one ground for
relief and attempted to hold in reserve "several other issues" he
would like reviewed, the court gave movant an opportunity to
withdraw the motion and refile it at a later time. Doc. 4. In
response to the order, movant filed a notice of appeal, falsely
representing that the court had "entered anew on or about October
31, 2017" his final judgment of conviction,

"authorizing an out

of time appeal." CR Doc. 190. He has not withdrawn the motion at
issue.

1

The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal action, No. 4: 16-CR-136-A.
2

The motion to withdraw appeal was signed by movant with the notation "APPROVED AS TO
FORM AND SUBSTANCE." Doc. 10 at 002.
3

The "Doc.

"reference is to the number of the item on the docket in this civil action.
2

II.
Ground of the Motion
Movant asserts one ground in support of his motion. He says
that he received ineffective assistance of counsel. As supporting
facts, he alleges that his attorney persuaded him to dismiss his
appeal.
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.
152, 164-165

United States v. Frady, 456 U.S.

(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
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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)).
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, 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
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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
As the government notes, as a threshold matter, a motion
under

§

2255 should not be considered during the pendency of a

direct appeal. See United States v Fantozzi, 90 F. App'x 73, 74
(5th Cir. 2004); Jones v. United States, 453 F.2d 351, 352 (5th
Cir. 1972). Here,

the appeal is a fraudulent one, filed under the

false pretense that the court reinstated the underlying judgment
against movant so as to make his recent notice of appeal timely.
The appeal has been docketed under Case No. 17-11370 in the
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United States Court of Appeals for the Fifth Circuit and the
government avers that Tracie L. Tippen, who represented movant in
the underlying criminal case, has been appointed to represent
movant in connection with his newly filed appeal. Doc. 9 at 4.
Tippen has filed a motion to withdraw as movant's attorney,
reciting therein that:
Counsel discussed [movant's] appellate rights with
him following the sentencing hearing, and on November
30, 2016 filed the Notice of Appeal. Counsel met with
[movant] on December 15, 2016, and on December 19, 2016
and he expressed his desire on both occasion[s] to
abandon the appeal. On April 5, 2017, Counsel filed
Appellant's Amended Unopposed Motion to Withdraw
Appeal, which was signed by [movant]. This Court
dismissed the appeal for Cause No 16-11701.
Doc. 10 at 007-008. The appellate court has not yet ruled on the
motion or taken action with regard to the appeal.
Although it would seem highly unlikely that the disposition
of the pending appeal would render movant's motion moot, the
court finds that the better course would be to dismiss the motion
without prejudice.

v.
Order
The court ORDERS that movant's motion under 28 U.S.C.

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be, and is hereby, dismissed without prejudice.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
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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.
The court DIRECTS the Clerk to provide to the Fifth Circuit
a copy of this memorandum opinion and order and the final
judgment signed this date.
SIGNED January 5, 2018.

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