Blair v. USA

Filing 16

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 7/3/2018) (wxc)

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

CLERK, _ _ _ _ _COURT
By _ U.S. DISTRICT __
Deputy

§

CELESTE MONETTE BLAIR,

§

Movant,

JUL - 3 2018

§
§

vs.

NO. 4:18-CV-288-A
(NO. 4:15-CR-152-A)

§
§

UNITED STATES OF AMERICA,

§
§
§

Respondent.

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Celeste Monette
Blair, movant, under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence by a person in federal custody. The court,
having considered the motion, the response of United States, the
reply, the record, including pertinent parts of the record in
Case No. 4:15-CR-152-A, styled "United States of America v. Eric
Summers, et al.," and applicable authorities, has concluded that
the motion should be denied.
I.

Background
Information contained in the record of the underlying
criminal case discloses the following:
On June 10, 2015, movant was named, along with other
defendants, in a one-count indictment charging her with
conspiracy to possess with intent to distribute 50 grams or more

of a mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C.
On June 30, 2015, Catherine Dunnavant

§

846. CR Doc.' 14.

("Dunnavant"), who had

been appointed to represent movant, filed a disclosure of prior
representation and motion for judicial determination in which she
disclosed that she had previously represented a co-defendant of
movant's in connection with a driving while intoxicated-open
container ("DWI") case in state court. Specifically, Dunnavant
had represented Phillip George Schenck, who was arrested on
September 13, 2011, and pleaded guilty on December 19, 2011, to
DWI. Dunnavant had no further involvement with Schenck following
his plea. CR Doc. 86. The government filed a response to the
motion, CR Doc. 91, and the court, by order signed July 9, 2015,
ordered that Dunnavant meet with movant to discuss potential
problem areas so that movant could make a fully informed decision
as to whether she wished Dunnavant to continue to represent her.
CR Doc. 98. Movant filed a lengthy response to the court's order
in which she expressly waived any potential conflict and
requested that Dunnavant continue to represent her. CR Doc. 104.
Having considered the response, the court ordered that Dunnavant
continue to represent movant as requested. CR Doc. 105.

1

The "CR Doc._" reference is to the number of the item on the docket of the underlying

cri111inal case.

2

On August 14, 2015, movant appeared before the court with
the intent to enter a plea of guilty to the offense charged
without benefit of a plea agreement. Under oath, movant stated
that no one 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 presentence
report ("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. 361;
CR Doc. 153.
The PSR reflected that movant's base offense level was 38
and added three two-level enhancements for use of a firearm,

for

importation of methamphetamine from Mexico, and for storing,
maintaining and distributing methamphetamine from movant's
residence. CR Doc. 196, , , 57-60. Movant received a three-level
adjustment for acceptance of responsibility. Id. , , 66-67. Based
on a total offense level of 41 and a criminal history category of
3

IV, the guideline imprisonment range was 360 months to life.
However, the statutorily authorized maximum sentence was 40
years; therefore, the guideline imprisonment range became 360
months to 480 months. Id.

~

134.

Movant filed objections to the PSR, which were addressed by
the probation officer in the addendum to the PSR. CR Doc. 222. On
January 29, 2016, movant was sentenced at the bottom of the
guideline range to a term of imprisonment of 360 months to be
followed by a four-year term of supervised release. CR Doc. 308;
CR Doc. 362. Movant appealed, CR Doc. 327, and her appeal was
dismissed as frivolous. United States v. Blair, 685 F. App'x 342
(5th Cir. 2017).
II.

Grounds of the Motion
Movant urges three grounds in support of her motion, each
alleging that movant received ineffective assistance of counsel.
Doc.' 1. The grounds and supporting facts are stated as follows:
GROUND ONE: Ineffective Assistance of Pretrial Counsel
Pretrial Counsel Failed to:
(1) Communicate with Blair and inform her of the
relevant circumstances and likely consequences of
pleading guilty as opposed to proceeding to trial;
(2) File any substantive pretrial motions;

'The "Doe.

" reference is to the number of the item on the docket in this civil action.
4

(3) Conduct an adequate and independent pretrial
investigation;
(4) Attempt to negotiate a favorable Plea Agreement;
and
(5) Submit truthful Disclosure of Prior Representation
deprived Blair of effective assistance of pretrial
counsel under the Sixth Amendment of the Constitution
of the United States.
Doc. 1 at PageID' 4.
GROUND TWO: Ineffective Assistance of Sentencing Counsel
Sentencing Counsel Failed to:
(1) Properly discuss and explain the PSR to Blair prior
to the sentencing hearing;
(2) File substantive objections to the PSR; and
(3) Argue for mitigation of punishment and object to
her sentence being substantively unreasonable deprived
Blair of effective assistance of sentencing counsel
under the Sixth Amendment, a fair and just sentence.
Id. at PageID 5.
GROUND THREE: Ineffective Assistance of Appellate Counsel
Appellate Counsel Failed to:
(1) Communicate with Blair regarding her direct appeal;
(2) Permit Blair to participate in her direct appeal;
(3) Raise stronger issues, which were available and
ripe for disposition, instead of the weak ones filed by
her attorney deprived Blair of effective assistance of
appellate counsel and a fair and meaningful appellate
review.
Id. at PageID 6.

3

The "PageID _"reference is to the page number assigned by the court's electronic filing
system. The comt is using this reference because the typewritten page numbers on the form filed by
rnovant do not match the actual page number of the document.
5

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
6

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,• Harringtonv. 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
7

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
A.

Pretrial Assistance
Movant first complains that she received ineffective

assistance of counsel at the pretrial stage. She says that
Dunnavant failed to adequately advise her so that she could
participate in her defense. Twenty pages of her memorandum in
support of the motion are devoted to a discussion of this ground.
Doc. 2 at 14-34. However, the discussion consists of nothing more
than conclusory allegations. For example, movant says that
Dunnavant took the position that movant should plead guilty and
never really discussed with movant going to trial, other than
telling movant that it would be suicidal. Id. at 16. Movant fails
to show that had she gone to trial the outcome would have been
different. Rather, the record reflects that the outcome might
well have been worse, since movant would not have received the
8

reduction for acceptance of responsibility and the government
would not have filed its motion for downward departure. CR Doc.
209. As the court noted at sentencing, movant would have faced a
life sentence had she been charged with all of her conduct. CR
Doc. 362 at 39. The court further notes that movant's apparent
contention that she was never really given a choice but to
cooperate is belied by her statement at sentencing that she chose
to cooperate--in her words, to become a tattletale--because she
never wanted to be part of that world again. She wanted to close
all of those doors by being "accurate and concise and helpful and
honest and forthcoming in every way." Id. at 54.
The contention that Dunnavant was ineffective for having
failed to file pretrial motions and conduct additional
investigation is likewise unsupported. Counsel is entitled to
formulate a strategy and need not pursue an investigation that
might be fruitless or harmful to the defense. Trottie v.
Stephens, 720 F.3d 231, 242

(5th Cir. 2013). One who alleges

failure to investigate on the part of his counsel must allege
with specificity what the investigation would have revealed and
how it would have altered the outcome of the trial. Id. at 243;
United States v. Green, 882 F.2d 999, 1002-03

(5th Cir. 1989).

Here, movant simply gives a laundry list of motions that might
have been filed, but does not explain why they were necessary or
9

might have affected the outcome. The record reflects that
Dunnavant had access to reports and interviews as she included
them in the objections lodged to the PSR. To the court's
knowledge, the government has an open file policy and as a
result, discovery motions are rare in this district.
Movant contends that Dunnavant was deficient in failing to
negotiate a favorable plea agreement. She appears to believe that
all of her co-defendants successfully negotiated plea agreements,
Doc. 2 at 26, but that is not the case. Movant has not shown that
a plea agreement was or would have been offered, much less that
she would have agreed to it. See Weatherford v. Bursey, 429 U.S.
545, 561 (1977) (whether to offer a plea agreement is within the
prosecutor's discretion; there is no constitutional right to a
plea bargain). Further, movant's contention that she did not have
sufficient information to make an informed choice to plead guilty
is belied by the record of the rearraignment. CR Doc. 361.
Movant alleges that Dunnavant failed to submit a truthful
disclosure of her prior representation of Schenck, but fails to
show that Dunnavant labored under any conflict of interest. See
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (to show a conflict
of interest, movant must show that her attorney acted under the
influence of an actual conflict and that this conflict adversely
affected the representation) . Theoretical or speculative conflict
10

is not enough, but that is all movant can offer. 4 Beets v.
Collins, 986 F.2d 1478, 1486 (5th Cir. 1993). She has not pointed
to any evidence to establish an actual conflict. See Perillo v.
Johnson, 79 F. 3d 441, 447

(5th Cir. 1996) (movant must specify

instances in the record reflecting that counsel made a choice
that helped one client to the detriment of the other) .
B.

Assistance at Sentencing
In her second ground, movant argues that she received

ineffective assistance of counsel at the sentencing phase because
Dunnavant failed to properly explain the PSR, failed to file
substantive objections to the PSR, and failed to argue for
mitigation of punishment and object to her sentence as being
unreasonable. Doc. 2 at 34-44. Once again, her arguments are
wholly conclusory and belied by the record.
At sentencing, Dunnavant stated that she and movant had
received the PSR and addenda thereto and that she and movant had
read and discussed them. CR Doc. 362 at 3-4. Movant never gave
any indication that such was not the case. Movant persisted in
her objections to the PSR and the court devoted substantial time
to hearing testimony related to the objections. Id. at 4-37.
Ultimately, movant reached a compromise with the government

4

ln fact, movant seems to think that she need only raise "a possibility of conflict of interest."
Doc. 15 at 7.
11

(agreeing that her base offense level was 36 instead of 38), but
the guideline range remained the same. Id. at 38-42. Movant has
not shown that she was prejudiced by the compromise.
Objections to the three two-level enhancements would have
been fruitless as they are supported by the PSR, which the court
adopted. Turner v. Quarterman, 481 F.3d 292, 298

(5th Cir. 2007).

According to the PSR, movant and codefendant Summers lived
together and were jointly involved in drug trafficking. Summers
used and possessed a firearm for protection and his use of the
weapon was reasonably foreseeable by movant. United States v.
Mergerson, 4 F.3d 337, 350

(5th Cir. 1993). Likewise, the PSR

reflected that movant's coconspirators obtained methamphetamine
from Mexico. Application of the enhancement was not dependent on
movant's knowledge that the drugs were imported. United States v.
Serfass,

684 F.3d 548, 550 (5th Cir. 2012). And, the PSR

described how methamphetamine was stored, maintained, and
distributed from movant's residence. Any objection on these
grounds would have been frivolous and might have cost movant her
reduction for acceptance of responsibility (as Dunnavant
apparently explained to her) . Movant further alleges that she was
entitled to a four-level reduction for being a minimal
participant in the conspiracy, but she offers nothing other than

12

her conclusory allegation in support of this contention. Doc. 2
at 38; Doc. 15 at 10.
Lastly, movant contends that her counsel should have argued
for mitigation of punishment and objected that her sentence was
substantively unreasonable. Movant argues that certain other
matters should have been taken into account and that her sentence
would have been less harsh, but she offers no support. Movant
received a sentence within the guidelines, which is presumed to
be reasonable. United States v. Mondragon-Santiago, 564 F.3d 357,
367 (5th Cir. 2009). She simply has not shown that she received
ineffective assistance with regard to her sentencing.
C.

Assistance on Appeal
In her final ground, movant argues that Dunnavant did not

communicate with her regarding the appeal, did not allow her to
participate in the appeal, and failed to raise stronger issues.
Doc. 2 at 44-45. Movant refers to a "plethora of issues which
could have been raised on appeal," but she does not provide any
specificity. Id. at 45. Movant does not identify any issue that
would have had the slightest merit. She simply argues that there
is no way her plea could be deemed knowing and voluntary, but
this argument is belied by the record of the rearraignment
hearing. CR Doc. 361. Movant clearly knew the penalties she faced
and made a knowing and voluntary decision to plead guilty. She
13

had an opportunity to respond to her counsel's motion to withdraw
on appeal, but chose not to do so. Her appeal was dismissed as
frivolous and she has not shown that she had any legitimate
ground that could have been raised and on which she would have
prevailed. She has not shown that she received ineffective
assistance on appeal. And, in fact,

in her reply, she concedes

that this ground lacks merit. Doc. 15 at 11.

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,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED July 3, 2018.