Roe v. USA

Filing 10

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. 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 3/13/2018) (tln)

IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

DENNIS MICHAEL ROE, JR.'

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Movant,

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vs.

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UNITED STATES OF AMERICA,

NO. 4:18-CV-049-A
(NO. 4:16-CR-173-A)

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Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Dennis Michael Roe,
Jr.

("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. 4:16-CR-173-A, styled
"United States of America v. Dennis Michael Roe, Jr., 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 July 13, 2016, movant was named, along with a codefendant, in a one-count indictment charging him with possession
with intent to distribute more than 50 grams of a mixture and

substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C.

§

841(a) (1) and (b) (1) (C). CR Doc. 1 28.

On August 26, 2016, movant appeared before the court with
the intent to enter a plea of guilty to the offense charged
without benefit of a plea agreement. CR Doc. 42. Movant signed a
factual resume setting forth the penalties he faced,

the elements

of the offense, and stipulated facts. CR Doc. 43. 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 2 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

1

The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: I 6-CR-173-A.
2

ln particular, the eomt admonished movant that the eomt was not bound by the facts stipulated
between movant and the government and that the court could impose punishment that might take into
account facts not mentioned in the stipulated facts. CR Doc. 116 at 12.
2

facts were true and accurate and movant understood that he faced
a term of imprisonment of 20 years. CR Doc. 116.
Movant objected to the presentence report

("PSR") and the

probation officer issued an addendum ("PSR Addendum•) accepting
his objection as to possible double-counting of the marijuana
equivalent. CR Doc. 61. The PSR Addendum also noted that
additional information had been received since disclosure of the
PSR, which resulted in movant having a total offense level of 37,
based on a base offense level of 36 with a two-level enhancement
for importation of methamphetamine and a two-level enhancement
for maintaining a drug-involved premises, and a three-level
reduction for acceptance of responsibility . .I.Q_,_Movant•s total
offense level, combined with a criminal history category of IV,
resulted in a guideline range of 292 to 365 months. Id. However,
the statutorily authorized maximum sentence was 20 years;
therefore, the guideline term of imprisonment became 240 months.
Id.
Movant objected to the premises enhancement, ·CR Doc. 7 7, and
the objection was overruled at sentencing. CR Doc. 117 at 7. The
court sentenced movant to a term of imprisonment of 240 months.
Id. at 11; CR Doc. 73. Movant appealed and his counsel filed an

3

Anders' brief. The appellate court allowed counsel to withdraw
and dismissed the appeal. United States v. Roe, 706 F. App'x 210
(5th Cir. 2017).
II.
Grounds of the Motion
Movant asserts four grounds in support of his motion, worded
as follows:
GROUND ONE: Ineffective assistance of counsel at
pretrial stages of the proceedings
Doc.' 1 at 4. 5
GROUND TWO: Ineffective assistance of counsel at
sentencing; a critical stage of the proceedings
Id. at 5.
GROUND THREE: Ineffective assistance of counsel to
defend against a plain error of sentencing factors;
affecting substantial rights
Id. at 6.
GROUND FOUR: Depravation [sic] of the constitutional
right to effective assistance of counsel on first
direct appeal
Id. at 8.

3

Anders v. California, 386 U.S. 738 (1967).

4

The "Doc.

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

'The page number reference is to the "Page!D" number in ECF.
4

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

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
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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
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
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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 says his counsel was ineffective in failing to object
to a defective indictment. Doc. 1 at 14. He seems to argue that
he was deceived into pleading guilty because he did not know
about the mandatory minimum sentence. Id. He does not explain how
the indictment was defective.' The factual resume movant signed
informed him that the penalties the court could impose included
imprisonment for a period not to exceed 20 years. CR Doc. 43 at
1. At rearraignment, movant stated under oath that he understood
the penalties to which he was subject. CR Doc. 116.
An indictment is sufficient if it contains the elements of
the offense charged, fairly informs the defendant of the charge
he must be prepared to meet, and enables him to plead acquittal
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Movant seems to be under the misapprehension that he was charged with conspiracy. The cases
he relies on concern enhanced penalties and the need to prove the quantity of the alleged drug beyond a
reasonable doubt, which are not applicable here. See Doc. 9.
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or conviction in bar of future prosecutions for the same offense.
United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986). The
indictment in this case met the test. Counsel cannot be faulted
for failing to raise a specious issue. United States v. Kimler,
167 F.3d 889, 893

(5th Cir. 1999).

To the extent movant appears to argue that the court was
limited to the quantity of drugs mentioned in the criminal
complaint originally filed, CR Doc. 1, that, too, is incorrect.
The court is not limited to drug quantities charged so long as
the sentence is withing the statutory range of punishment. United
States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000). As the
court noted, the government could have chosen to charge movant
under another penalty provision of 21 U.S.C.

§

841 that would

have included a greater statutory maximum. Because the government
failed to charge movant with his true offense conduct, the court
was limited to imposing a term of imprisonment of 20 years,
despite the considerably higher applicable guideline range. CR
Doc. 117 at 10-11.
In his second ground, movant argues that he received
ineffective assistance of counsel at sentencing. Again, the
argument seems to be based on the misapprehension that the court
was limited to the drugs as identified in the indictment. Doc. 1
at 15-16. That is, he appears to argue that the court was
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required to apply the methamphetamine mixture multiplier since
the indictment charged a "mixture and substance." Id. at 16. The
choice of multiplier is not determined by the language of the
indictment, but rather by the guidelines. United States v.
Molina, 469 F.3d 408, 414

(5th Cir. 2006). Thus, counsel cannot

have been ineffective for failing to make this argument. Kimler,
167 F.3d at 893.
In addition, movant argues that counsel failed to preserve
error regarding the two-level enhancement for drug premises by
failing to object. Doc. 1 at 17. The record reflects, however,
that counsel filed written objections and persisted in the drug
premises objection at the sentencing hearing. CR Docs. 77, 117.
For the reasons stated on the record, the court overruled the
objection. CR Doc. 117. Again, counsel was not ineffective.
In his third ground, movant argues that his counsel was
ineffective because the government violated the "grand jury
clause" of the Fifth Amendment. Doc. 1 at 17-19. As best the
court can tell, movant alleges that he was held accountable for
crimes not charged in the indictment. Again, the argument is
based on a misapprehension of the law regarding relevant conduct.
See Doggett, 230 F.3d at 166.
Finally, in his fourth ground, movant argues that he
received ineffective assistance of counsel on appeal. He says his
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attorney should have raised each of the issues discussed in his
motion. Doc. 1 at 19-20. For the reasons discussed, movant has
not urged any meritorious grounds. Accordingly, his counsel
cannot have been ineffective in failing to raise them. Kimler,
167 F.3d at 893; Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir.
1981) .

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.

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 March 13, 2018.

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