Ward v. USA
Filing
9
Memorandum Opinion and Order... The court ORDERS that all relief sought by movant in her 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 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 3/6/2018) (wxc)
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IN THE UNITED STATES DISTRICT ctjuRT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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MAR - 6 20!8
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BY~~~~~~~~~~-
KENDRA WARD,
§
I
§
§
vs.
§
§
UNITED STATES OF AMERICA,
NO. 4:18-CV-038-A
(NO. 4:16-CR-021-A)
§
§
Respondent.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Kendra Ward
("movant") under 28 U.S.C.
§
I!
I
Deputy
§
Movant,
I
2255 to vacate, set aside, or
correct sentence. After having considered such motion, its
supporting memorandum, the government's response, and pertinent
parts of the record in Case No. 4:16-CR-021-A, styled "United
States of America v. Cleto Tarin, 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 February 10, 2016, movant was named with thirteen others
in a two-count indictment charging her in count two with
conspiracy to possess with intent to distribute a controlled
substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C.
§
846. CR Doc.' 37. On March 18, 2016,
movant appeared for rearraignment and pleaded guilty to count two
of the indictment. CR Doc. 199. Movant signed a factual resume
admitting each of the elements of the offense. CR Doc. 201.
According to the presentence report, from at least May 25
until October 27, 2015, movant was involved in the distribution
of methamphetamine. She purchased ounce-quantities that she
distributed to her customers, including, on several occasions, an
undercover officer. CR Doc. 291, , 16. Movant was accountable for
2.5 kilograms of methamphetamine, not counting amounts she sold
to customers (including the undercover officer) or the amounts
movant admitted during her proffer interview. Id. a t , , 37-38.
Her corresponding base-offense level was 32. Id. at ,51. She
received a two-level enhancement for possessing a firearm, a twolevel enhancement for importation of the drugs, and a two-level
enhancement for maintaining drug premises. Id. at , , 52-54. Her
total offense level was 38 with a criminal history category of
III, resulting in a guideline range of 292 to 365 months'
imprisonment. Id. at
, 124. However, her statutory maximum term
of imprisonment was twenty years. Id. at , 123. An upward
The "CR Doc.~" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: l 6-CR-021-A.
1
2
departure or variance would have been warranted, but was
prevented by the cap. Id. at ,, 138-40.
Movant filed objections to the presentence report. CR Doc.
304. The probation officer issued an addendum to the presentence
report rejecting movant's objections. CR Doc. 346. The court
tentatively concluded that movant's objections lacked merit. CR
Doc. 403. At her sentencing on July 8, 2016, the court overruled
the objections. CR Doc. 601 at 6-9, 58. The court heard testimony
regarding movant's assistance to authorities. Id. at 38-43. The
court sentenced movant to a term of imprisonment of 220 months.
CR Docs. 418; 432.
Movant appealed and her judgment was affirmed on April 21,
2017. United states v. Ward, 687 F. App'x 354 (5th Cir. 2017). on
June 7, 2017, movant filed on her own behalf a motion seeking
substitute counsel to proceed with a petition for writ of
certiorari. CR Doc. 699. On June 14, 2017, the court conducted a
telephone conference hearing with movant, her counsel, and
counsel for the government on the line. CR Doc. 701. Movant's
counsel admitted that he had not informed her of the outcome of
her appeal, but confirmed the appellate court's ruling when she
called to inquire of him. CR Doc. 702 at 4. The court reviewed
the duties of movant's counsel and expressed disappointment that
he had failed to comply with those duties. Id. at 5-7. Movant's
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counsel said that he would file a motion to withdraw and the
court admonished movant that another attorney likely would not be
appointed to represent her to pursue a petition for writ of
certiorari. Id. at 7-8. The court advised movant that she had 90
days from April 21 in which to file her petition for writ of
certiorari. Id. at 8-9. The court suggested movant and her
counsel confer regarcJ.ing what needed to be done. Id. at 9-10.
Movant's counsel filed a motion to withdraw, which the Fifth
Circuit granted. Doc. 2 8 at 1-7. Movant did not file a petition
for writ of certiorari; hence, her judgment became final on July
20, 2017. Clay v. United States, 537 U.S. 522, 524-25 (2003).
II.
Grounds of the Motion
Movant sets forth four grounds in support of her motion,
worded as follows:
GROUND ONE: Counsel failed to "consult" with [movant]
regarding an appeal, and failed to correct an appeal
after sentencing.
Doc. 1 at 5.
GROUND TWO: Failure to argue that the government
breached the plea agreement.
Id. at 6.
GROUND THREE: 5Kl.1 departure was in violation of law.
'The "Doc.
" reference is to the number of the item on the docket in this civil action.
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Id. at 7.
GROUND FOUR: Counsel labored under a conflict of
interest.
Id. at 9.
In her memorandum in support of the motion, movant restates
her grounds and discusses two additional grounds. Doc. 2. The
government has not objected to the additional grounds and has
addressed them in its response. Doc. 7.
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.
Section 2255 does not offer recourse to all who suffer trial
errors.
It is reserved for transgressions of constitutional
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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
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies.•
Strickland, 466 U.S. at 697; see also
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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 way movant's first ground is worded, one would think
that her counsel failed to file an appeal on her behalf. What she
apparently means is that counsel did not present all of the
arguments she would have made. In particular, she says she would
have (1) argued that the government breached the plea agreement
and (2) asserted that the information in the presentence report
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was accepted without sufficient indicia of reliability and that
the enhancements that were applied were not considered along with
the factors set forth in the sentencing guidelines. 3 Doc. 2 at
second unnumbered page. She also points to her counsel's failure
to show that movant would have received a lesser sentence but for
the court's alleged conflation of the 5Kl.l factors and 18 U.S.C.
§
3553(a) factors.' Id.
(referencing United States v. Ward, 687
F. App'x at 355). These conclusory allegations are insufficient
to establish ineffective assistance of counsel. Green v. Johnson,
160 F.3d 1029, 1042
(5th Cir. 1998); Smallwood v. Johnson, 73
F.3d 1343, 1351 (5th Cir. 1996). And movant has failed to show
that any particular nonfrivolous issue was stronger than the
issues that were presented. Dorsey v. Stephens, 720 F.3d 309, 320
(5th Cir. 2013).
Movant's second ground is likewise misleadingly worded,
alleging that the government breached a plea agreement and her
counsel was ineffective in failing to so argue. What she
apparently contends is that information she provided to the
government was used against her. She refers to her possession of
a weapon, saying that she made this admission after her initial
3
The record reflects that there was not a plea agreement between movant and the government. CR
Doc. 199. Further, the cou1t could and did accept as reliable the facts set fmth in the presentence repmt.
See United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
4
Movant makes no attempt to show that this burden could have been met.
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arrest when she was under the influence of methamphetamine. Doc.
2 at unnumbered third page. This is not the type of information
to which U.S.S.G.
§
lBl.8 refers. And,
in any event, the
enhancement was based on movant's admissions to the probation
officer during her interview. CR Doc. 291 at
~
39.
In her third ground, movant says that her counsel failed to
properly argue on appeal "that the extent of the SKl.1 departure
was in violation of law." Doc. 2 at unnumbered fourth page. The
argument is vague and conclusory and fails to show ineffective
assistance of counsel. Green, 160 F.3d at 1042. The fact is that
the court imposed a sentence below the guidelines and movant
simply wishes that it would have been lower. She has not shown,
because she cannot show, that the sentence she received was due
to some fault of her attorney.
In her fourth ground, movant contends that her counsel
labored under a conflict of interest, but fails to allege any
facts to support such contention. Doc. 2 at unnumbered fifth
page. See Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.
2000) (discussing actual conflict of interest). In any event, she
does not allege that any conflict played a role in her guilty
plea. Movant's guilty plea was knowing and voluntary, thus the
claimed conflict has been waived. United States v. Glinsey, 209
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F.3d 386, 392
682
(5th Cir. 2000); Smith v. Estelle, 711 F.2d 677,
(5th Cir. 1983).
In her fifth ground, movant argues that her counsel failed
to properly argue that the guideline enhancements were improperly
applied. Doc. 2 at unnumbered fifth and sixth pages. The record
belies the contention. Movant filed objections to the presentence
report,
including objections to the enhancements regarding the
gun, the importation of drugs from Mexico, and maintaining drug
premises. CR Doc. 304. The government responded to the
objections, pointing out why they were without merit. CR Doc.
311. The court tentatively concluded that the objections were
without merit, but gave movant an opportunity to pursue them at
sentencing. CR Doc. 403. Movant elected not to present further
evidence 5 and does not now point to any evidence that was
available and would have affected the outcome of her sentencing.
Finally, movant urges that she received ineffective
assistance of counsel because her attorney failed to file a
petition for writ of certiorari on her behalf. Doc. 2 at seventh
and eighth unnumbered pages. The right to appointed counsel
exists as to a defendant's first appeal only; there is no right
to counsel for discretionary appeals. Pennsylvania v. Finley, 481
'One could surmise that movant's counsel did not think these were meritorious objections and
that movant's opp01iunity to receive acceptance of responsibility might suffer were she to persist in
them.
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U.S. 551, 555 (1987). And, since movant had no right to counsel,
she could not be deprived of effective assistance of counsel by
counsel's failure to file a petition on her behalf. Wainright v.
Torna, 455 U.S. 586, 587-88 (1982). In any event, the court
notified movant during the telephone conference hearing on June
14, 2017, long before the time for filing a petition for
certiorari expired, that she likely would not be appointed
substitute counsel to pursue such a petition. CR Doc. 702 at 7-9.
Movant clearly understood that she would need to figure out how
to proceed. Id. at 9. And, indeed, movant admits that she
received solicitations from outside sources seeking to file a
petition on her behalf. Doc. 2 at unnumbered seventh page. That
she chose to do nothing does not entitle her to relief.
v.
Order
The court ORDERS that all relief sought by movant in her
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,
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denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED March 6, 2018.
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