Janicek v. USA
Memorandum Opinion and Order...all relief sought by movant in Grount 2,3 and 4 of the motion under 28 USC 2255 is denied; a hearing is to be conducted as to the relief sought in Ground 1 of such motion. (Ordered by Judge John McBryde on 3/6/2018) (wrb)
U.S. DISTRICT COURf-·-····:
.NORTHEPJ\T DIS1'RJC1' OF TEJCA S 1
IN THE UNITED STATES DISTRICT OURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
L~R 6 2DIB
By _ __
TAMMY SUE JANICEK,
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Tammy Sue Janicek6
("movant") under 28 U.S.C.
2255 to vacate, set aside, or
correct sentence. After having considered such motion,
supporting memorandum, the government's response, the reply, 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 three of the grounds of the motion are
meritless and should be denied, and that the fourth ground, while
probably without merit, requires a hearing before a ruling can be
Information contained in the record of the underlying
criminal case discloses the following:
On June 7, 2016, movant was named, along with Patrick Lee
Graydon, inn a one-count information charging her with conspiracy
to possess with intent to distribute a mixture and substance
containing a detectable amount of methamphetamine, in violation
of 21 U.S.C.
846. CR Doc.
117. Peter Christian Smythe
("Smythe") was appointed to represent movant. CR Doc. 99. Smythe
filed his entry of appearance of counsel on behalf of movant in
which he acknowledged:
I understand that it is my duty to continue to
represent the named defendant in connection with all
matters relating to this case, and in connection with
all proceedings therein in this Court; to assist
him/her with any appeal which he/she desires to
perfect, and to represent him/her on appeal until a
final judgment has been entered; unless and until,
after written motion filed by me, I am relieved by
Order of the court.
CR Doc. 112.
On June 21, 2016, movant waived the filing of an indictment,
CR Doc. 126, and entered a plea of guilty to the information. CR
Doc. 125. Movant signed a factual resume setting forth the
essential elements of the offense, along with stipulated facts
supporting the offense and a description of the maximum penalties
she faced. CR Doc. 127. The court placed movant under oath and
engaged in an extensive plea colloquy. Movant stated that no one
'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: 16-CR-136-A.
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 PSR was prepared; the court could
impose a sentence more severe than 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. 192. The court determined that movant was fully competent
and capable of entering an informed plea, that her plea was
knowing and voluntary supported by an independent basis in fact
containing each of the essential elements of the offense, and
that such plea did not result from force,
threats, or promises.
Id. at 43.
According to the presentence report ("PSR"), movant was
accountable for a total of 3.3 kilograms of methamphetamine based
on multiple instances in which she obtained varying amounts from
seven different sources. CR Doc. 133 at 6, , 16. Her base-offense
level was 32, with a two-level enhancement for possession of a
firearm and a two-level enhancement because drugs were imported
from Mexico. Movant received a three-level reduction for
acceptance of responsibility, for a total offense level of 33.
Id. at 6-7. Her criminal history category was IV, resulting in a
guideline range of 188-235 months. Id. at 11, , 46; 17, , 89.
Movant filed objections, asserting that she had not received a
copy of the PSR and that she objected to the firearm enhancement.
CR Doc. 177. The probation officer admitted that the PSR had
first been sent to movant's earlier place of confinement, but
stated that a copy had been provided to her. The probation
officer was not persuaded by the objection to the firearm
enhancement. CR Doc. 142. The court reviewed the PSR and the
objections and issued an order expressing the tentative
conclusion that the objections lacked merit. CR Doc. 166.
At sentencing, movant persisted in her objection to the
firearm enhancement and the court sustained her objection. Given
an offense level of 31 and criminal history category of IV,
movant's revised guideline range was 151-188 months. CR Doc. 193
at 23. Smythe highlighted mitigating information and movant gave
her allocution. Id. at 24-26. The court pointed out that movant's
counsel had been successful in getting her range reduced
significantly. Id. at 26. The court sentenced movant to a term of
imprisonment of 170 months. Id. at 27; CR Doc. 170. Movant did
Grounds of the Motion
Movant urges four grounds in support of her motion, all
based on alleged ineffective assistance of counsel. The grounds
and supporting facts are as follows:
1. Failure to file direct appeal.
Immediately upon sentencing, Movant requested that her
court appointed attorney, Mr. Peter Smythe, file a
direct appeal. Movant had signed all appropriate
documents needed to file the appeal and was under the
impression that an appeal would be filed. It was never
filed. In fact, said attorney recused himself after
sentencing (see exhibit A).
2. Failure to advise client of insufficiency of
The allegations in the charging instrument, an
Information, that resulted in Movant's arrest are
vague, fail to provide sufficient notice to her such
that she may prepare a defense. Movant maintains that
the information "merely trades the statutory language."
It provides no details as to the specific agreement
that the government intends to prove which is
insufficient to state a cognizable conspiracy charge;
that the Information does not describe in detail the
specific components of the scheme and the Information
does articulate with great specificity the motive and
components of the count.
Failure of counsel to investigate and present to the
Court mitigating circumstances, and to provide
requisite adversarial support
The petitioner had presented information to counsel of.
her mother's passing that could have supplied the
defendant w/ mitigating circumstances for the offense
conduct. Counsel had refused to investigate the
petitioner's upbringing, or any mental health illnesses
that would have possibly justified, or mitigated the
penalties in this case.
4. Failure of counsel to object to Probation Officer's
calculation of drug quantity used to determine Base
The factual resume contained information of the
defendant's conduct. Where Ms. Janicek was under the
impression that she had agreed to accept responsibility
for one ounce of Methamphetamine, however, the Presentence report had depicted a sellable mixture of.3.3
kilograms of Methamphetamine.
Doc.' 1 at 7-8.
Applicable Standards of Review
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
Shaid, 937 F.2d at 232.
"reference is to the number of the item on the docket in this civil action.
Section 2255 does not offer recourse to all who suffer trial
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).
issues •are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
(5th Cir. 1979)
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
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).
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.
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
A convicted defendant must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment. Strickland, 466 U.S. at 690.
And, to show that deficient performance caused prejudice, movant
must show that but for counsel's unprofessional errors, the
result of the proceeding would have been different. Id. at 694.
Mere conclusory allegations are insufficient to raise a
constitutional issue. Green v. Johnson, 160 F.3d 1029, 1042
As respondent notes, attached to the motion is a memorandum
of points and authorities that does not discuss the grounds in
the same order as set forth in the motion. In fact,
memorandum does not appear to address the second ground of the
motion at all. That ground alleges that movant's counsel failed
to advise her of the insufficiency of the charging instrument.
But the information charges the offense in the words of the
statute and apprises movant of the elements of the offense. See
United States v. Gordon, 780 F.2d 1165, 1170-71 (5th Cir. 1986)
Counsel cannot have been ineffective for failing to raise a
meritless ground. United States v. Kimler, 167 F.3d 889, 893
Movant urges in her third ground that her counsel was
ineffective in failing to investigate and present mitigating
circumstances, such as her mother's passing, her upbringing, or
any mental health illnesses. She simply cites to Wiggins v.
Smith, 539 U.S. 510 (2003), but does not provide any facts to
compare her case to that one. Her conclusory allegations are
insufficient raise any issue as to ineffectiveness. The court
notes, in any event, that information regarding all of these
things is set forth in the PSR. CR Doc. 133 at 13-17,
In her fourth ground, movant urges that her attorney was
ineffective for failing to challenge the 3.3 kilogram drug
quantity. She simply states that she "was under the impression"
that she had agreed to accept responsibility for one ounce of
methamphetamine. Doc. 1 at 19. However, she testified under oath
that she understood that the court would determine her guideline
range and impose a sentence based on all the evidence and that
the court was not bound by the stipulated facts and might take
into account facts not mentioned in the stipulated facts. CR Doc.
192 at 18-21. Movant acknowledged that if she received a sentence
more severe than she had hoped, she would still be bound by her
plea. Id. at 41-42. Movant's solemn declarations in open court
carry a strong presumption of verity that her conclusory
allegations here are insufficient to overcome. Blackledge v.
Allison, 431 U.S. 63, 74
(1977); United States v. Cervantes, 132
F.3d 1106, 1110 (5th Cir. 1998). In particular, movant has not
shown, much less made any attempt to show, that the information
in the PSR regarding the drugs she sold was materially untrue.
United States v. Valencia, 44 F.3d 269, 274
(5th Cir. 1995).
Movant has not shown that any of these grounds, her second
through the fourth, has merit. She has, however, potentially
alleged a valid ground by first urging that she requested her
attorney to file a direct appeal and he failed to do so. The
exhibits that movant attached to the motion include a letter
where Smythe reminds movant that they had discussed and agreed
that if the court sustained her objections to the PSR she would
not appeal. Doc. 1 at 28
(Page ID 123). Thus, it does not appear
that this ground has merit. Nevertheless, the court has decided
that the court should conduct a hearing so that movant will have
an opportunity to offer any evidence she might have in support of
that ground. A separate order scheduling the hearing and
appointing an attorney to represent movant in connection with the
hearing is being issued.
For the reasons stated herein,
The court ORDERS that all relief sought by movant in Ground
Two, Ground Three, and Ground Four of the motion under 28 U.S.C.
2255 be, and is hereby, denied, and that a hearing is to be
conducted as to the relief sought by movant pursuant to Ground
One of such motion.
SIGNED March 6, 2018.
·.?ea States District
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