Cathey v. USA
Filing
14
Memorandum Opinion and Order..denying motion under 28 USC 2255. COA denied. (Ordered by Judge John McBryde on 9/4/2018) (wrb)
IN THE UNITED STATES DISTRICT OUR'
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
SEP - 4 2018
CLERK, U.S. DISTRICT COURT
SHAWN TRAVIS CATHEY,
By ~~~D~e~p~u~~~~
§
§
Movant,
§
§
VS.
§
§
UNITED STATES OF AMERICA,
NO. 4:18-CV-381-A
(NO. 4:15-CR-152-A)
§
§
Respondent.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Shawn Travis Cathey
("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. 4:15-CR-152-A, styled
"United States of America v. Eric Summers, 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 June 10, 2015, movant was named along with eight others
in a sealed indictment charging him with conspiracy to possess
with intent to distribute 50 grams or more of a mixture and
substance containing a detectible amount of methamphetamine, in
violation of 21 U.S.C.
§
846. CR Doc. 1 14. On August 7, 2015,
movant appeared for re-arraignment and entered a plea of guilty.
CR Doc. 134. Movant and his attorney signed a factual resume
setting forth the elements of the offense, the maximum penalty
movant faced, and the stipulated facts supporting movant's guilt.
CR Doc. 133. 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 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 his
guilty plea; movant was satisfied with his counsel and had no
complaints regarding his representation; movant and counsel had
reviewed and discussed the factual resume and movant understood
the meaning of everything in it before he signed it; and the
stipulated facts were all true. CR Doc. 349.
The probation officer prepared a presentence report that
indicated that movant's base offense level was 38 and that two
two-level enhancements should be applied because the offense
'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: l 5-CR-152-A.
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involved at least three dangerous weapons and because movant
stored and distributed methamphetamine from his residence and
from various hotel rooms. CR Doc. 172 , , 49-51. Based on a
criminal history category of VI, id. , 73, movant's guideline
imprisonment range was 360 months to life, but the statutorily
authorized maximum sentence was 40 years; hence, the guideline
imprisonment range became 360 to 480 months. Id. , 132.
Movant objected to the PSR. CR Doc. 257. He objected to the
drug quantity calculation and the enhancement for maintaining a
drug premises. Id. The probation officer filed a supplement to
the PSR noting that in light of the objections movant should be
denied acceptance of responsibility, but that the guideline range
would remain the same. CR Doc. 194. The court tentatively
concluded that the objections were without merit and that movant
was not eligible for a reduction for acceptance of
responsibility. CR Doc. 234. Thereafter, movant withdrew his
first objection. CR Doc. 238.
At sentencing, the court overruled movant's second objection
(as to the drug premises) but granted him the acceptance of
responsibility reduction. CR Doc. 356 at 5-6. The court heard
testimony from the case agent and determined that movant had
provided substantial assistance to the government. Id. at 7-11.
After hearing from movant and his attorney, the court imposed a
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sentence of 360 months noting that, had it not been for movant's
cooperation, it would have sentenced movant to a term of 480
months' imprisonment. Id. at 20-21.
Movant appealed, CR Doc. 261, and his sentence was affirmed.
United States v. Cathey, 663 F. App'x 326
(5th Cir. 2016).
Movant's petition for writ of certiorari was denied. 137 S. Ct.
2116
(2017).
II.
Grounds of the Motion
Movant raises four grounds for relief, worded as follows:
GROUND ONE: Conviction obtained by plea of guilty
which was unlawfully induced.
Doc. 2 1 at PageID 3 4.
GROUND TWO: Violation of Due Process (5th Amendment)
Id. at PageID 5.
GROUND THREE: Innefective [sic] counsel
Id. at PageID 7.
GROUND FOUR: Guilty plea no itelligent [sic]
Id. at PageID 8.
2
The "Doc.
" reference is to the number of the item on the docket in this civil action.
3
The "Page!D _"reference is to the page number assigned by the court's electronic filing
system, used in this case because the typewritten page numbers on the form filed by movant do not
correspond with the actual page number of the document as filed.
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
5
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
United States v. Stewart, 207 F.3d 750, 751 (5th Cir.
2000) (failure to meet either the deficient performance prong or
the prejudice prong will defeat a claim of ineffective assistance
of counsel; the court need not address both components).
"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
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cannot be relied on as having produced a just result."
Pinholster, 563 U.S. 170, 189 (2011)
U.S. at 686).
Cullen v.
(quoting Strickland, 466
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
In his first ground, movant alleges that his conviction was
obtained by a plea of guilty that was unlawfully induced. As
supporting facts,
he says he "was not mirandized" and was
interrogated for five hours, even after he requested an attorney.
Doc. 1 at PageID 4. This is a ground that should have been raised
on direct appeal and cannot be raised here. Davis, 417 U.S. at
345. Moreover, by his guilty plea, movant waived all nonjurisdictional defects, including a challenge to the
voluntariness of his confession. United States v. Bentle, 533 F.
App'x 462, 463
(5th Cir. 2013); Rogers v. Maggio, 714 F.2d 35, 38
(5th Cir. 1983)
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In his second ground, movant simply states "violation of due
process (5th Amendment)." Doc. 1 at PageID 5. The supporting
facts are equally vague. As best the court can tell, movant
complains that the court did not grant the government's motion
for downward departure. But the court did give movant substantial
credit for assisting the government. CR Doc. 356. And, in any
event, the issue was raised on appeal and cannot be asserted
here. Moore, 598 F.2d at 441.
Movant's third ground alleges ineffective assistance of
counsel. Doc. 1 at PageID 7. As supporting facts, movant alleges:
Counsel ineffective for not arguring [sic] that the
entire weight attributed to petioner [sic] should have
not been included in calculating drug quantities; drug
quantities was basis for mandatory minimum sentence.
Counsel inneffective [sic] because he failed to
suppress evidence that was based on hearsay testimony.
Counsel was inneffective [sic] because he failed to
object to factual errors in PSI on error in weight of
actual amount attributed to petioner [sic] triggered
unlawful sentencing range on guidelines.
My attorney never filed any pretrial motions to help my
case.
The bulk of the complaint appears to address the quantity of
drugs attributed to movant. His counsel did object to the drug
quantity, CR Doc. 257, and wisely withdrew the objection when the
probation officer recommended that movant lose acceptance of
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responsibility.' CR Doc. 194; CR Doc. 238. In any event, the
court was entitled to rely on the PSR and adopt its findings.
United States v. Alaniz, 726 F.3d 586, 619
(5th Cir. 2013).
Movant bore the burden of showing that the information contained
in the PSR was materially untrue. Id. There is no indication that
he could have done so. The documents movant attached to his
motion do not in any way undermine the information in the PSR.
Finally, the court has no idea what movant means by complaining
that his counsel never filed any pretrial motions. He does not
identify any such motions nor explain why the outcome of the case
could, much less would, have been different.
In his final ground, movant urges that his guilty plea was
not intelligent because he was not informed that the drug
quantity had to be proved beyond a reasonable doubt. This ground
could and should have been raised on direct appeal and cannot be
brought here. Davis, 417 U.S. at 345. In any event, this
contention is belied by the record. Not only did movant
acknowledge the elements of the crime in his factual resume, he
stipulated that he and others conspired to possess with intent to
distribute more than 50 grams of methamphetamine. CR Doc. 133.
And he swore under oath that he had committed each element of the
"The probation officer explained in the supplement to the PSR why the drug estimate was a
conservative one. CR Doc. 194. See also CR Doc. 172, ~ 39.
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offense. CR Doc. 349. At sentencing, movant admitted "100 percent
responsibility.• CR Doc. 356 at 17.
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 September 4, 2018.
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