Callen v. UNITED STATES OF AMERICA

Filing 8

OPINION AND ORDER (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
January 31, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent.
VS.
JOHN CALLEN, JR.,
Defendant/Movant,

§
§
§
§
§
§
§
§
§
§

David J. Bradley, Clerk

CRIMINAL NO. H-03-0346-1
CIVIL ACTION H-14-207

OPINION AND ORDER
Pending before the Court are the following matters:

(1)

Movant John Callen Jr.’s (“Callen’s”) motion to vacate, set aside
or correct sentence under 28 U.S.C. § 2255 (#260 in H-03-CR-346, #1
in H-14-CV-207); (2) Callen’s motion to supplement his § 2255
motion and second amendment (supplement) to his § 2255 motion
(#282-1 in H-03-CR-346); (3) the United States’ motion to dismiss
(#277 in H-03-CR-346) Callen’s § 2255 motion; (4) Callen’s motion
for

leave

to

file

addendum

to

pending

motion

to

vacate

and

supplemented petition (#286 in H-03-CR-346) adding nine issues
relating to his claim that he was denied his right to a speedy
trial and to appeal that denial; (5) United States Magistrate Judge
Frances Stacy’s memorandum and recommendation (#287 in H-03-CR-346,
#5 in H-14-CV-207) that Movant’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 and supplement be denied
and the Government’s motion to dismiss be granted; (6) Callen’s
motion for summary judgment (instrument #288 in H-03-CR-346) that
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the warrant for his arrest expired long before his second arrest
and guilty plea and therefore the charges against him should be
dismissed and his judgment and sentence be vacated, and Callen’s
second motion for summary judgment (#294 in H-03-CR-346),1 the
latter simply asking that the former, #288, be granted; (7)
Callen’s objection to #287 (#289 in H-03-CR-346); (8) Magistrate
Judge’s second memorandum and recommendation (#298 in H-03-CR-346
at pp.8-9, citing her first memorandum and recommendation (#287 at
pp. 18-20); #6 in H-14-CV-207) that Callen’s first motion for
summary judgment be denied as time-barred; (9) Callen’s motion for
extension of time (#299) to file objection to #298; and (9)
Callen’s motion to stay pending appeal (petition for writ of
mandamus) to the United States Supreme

Court (#300).

As matters for quick housekeeping, because the Government did
not object to Callen’s motion to supplement his § 2255 motion and
has responded to its new claims, the Court grants the motion for
leave to supplement (#282).

Because the Supreme Court denied

Callen’s petition for writ of certiorari (#301) on May 17, 2016,
the Court finds that Callen’s motion for stay (#300) is MOOT.

1

Callen filed a petition for writ of mandamus with the Fifth
Circuit (#295), arguing that the Fifth Circuit should direct the
district court to grant his motion for summary judgment because the
Government had not responded. That petition was denied and the
Fifth Circuit stated that this Court should consider the motion for
summary judgment as part of Callen’s § 2255 proceedings. #296.
Magistrate Judge Stacy did so in her second memorandum and
recommendation (#298), as well as addressed Callen’s objection
(#289) to her first memorandum and recommendation (#287).
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Callen’s second motion for summary judgment (#294) asking that the
first motion for summary judgment be ruled on is mooted by this
Opinion and Order.

Callen’s motion for extension of time (#299),

filed on February 22, 2016, states that because he wants time to
obtain “advice from a much more advanced lay person,” because
library hours are limited, and

because he works in food-service

during the day shift, he was unable to get to the library within
fourteen days of the issuance of the Magistrate Judge’s second
memorandum and recommendation.

The passage of four months since

then should have given him the opportunity to go to the library and
file an objection if he had one, but he has not done so.

Therefore

the Court DENIES the motion for extension of time (#299).
Standard of Review
Title 28 U.S.C. § 636(b)(1)(B) provides,
[A] judge may also designate a magistrate judge to
conduct hearings including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact
and recommendations for the disposition, by a judge of
the court, of any motion excepted in subparagraph (A), of
applications for posttrial relief made by individuals
convicted of criminal offenses and of prisoner petitions
challenging conditions of confinement.
When timely objections are made to the magistrate judge’s
memorandum and recommendation, 28 U.S.C. § 636(b)(1), the district
court “shall make a de novo determination of those portions of the
report or specified proposed findings and recommendations to which
objection is made.”

See Wilson, 492 U.S. at 1221.

Objections

timely filed within fourteen days of entry of the Magistrate
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Judge’s memorandum and recommendation must specifically identify
the

findings

or

reconsideration.

recommendations

for

which

the

party

seeks

Byars v. Stephens, No. 5:13-CV-189-DAE, 2014 WL

1668488, at *2 (Apr. 14, 2014), citing Thomas v. Arn, 474 U.S. 140,
151 (1985).

The court does not have to consider “‘[frivolous,

conclusive, or general objections.’”

Id., citing Battle v. U.S.

Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

The district

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1)(C).
When no timely objection to a magistrate judge’s memorandum
and recommendation is filed by any party, the district court need
only satisfy itself that there is no plain error in the magistrate
judge’s findings of fact and conclusions of law.

Guillory v. PPG

Industries, Inc., 434 F.3d 303, 308 (5th Cir. 2008).
Failure to file timely objections bars a party from attacking
factual findings on appeal, and, absent plain error, from attacking
conclusions of law on appeal.

Scott v. J.P. Morgan Chase Bank,

N.A., 2014 WL 4167980, *1 (S.D. Tex. Aug. 19, 2014), citing
Douglass v. United States Auto. Assoc., 79 F.3d 1415, 1429 (5th Cir.
1996), superseded by statute on other grounds, 28 U.S.C. section
636(b)(1)(extending time to file objections from 10 to 14 days).
Section 2255 and The Sixth Amendment Right to Counsel
Once a defendant has been convicted and has exhausted or
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waived his right to appeal, a Court may presume that he “stands
fairly and finally convicted.”
592, 595 (5th Cir. 2001).

United States v. Willis, 273 F.3d

Therefore there are only four grounds

recognized as basis for relief under § 2255:

(1) the sentence was

imposed in violation of the Constitution or the laws of the United
States; (2) the court lacked jurisdiction to impose the sentence;
(3) the sentence exceeded the statutory maximum sentence; or (4)
the sentence is otherwise subject to collateral attack.

28 U.S.C.

§ 2255; United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992)(“Relief under 28 U.S.C. § 2255 is reserved for transgressions
of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice.”).
Issues that were raised and addressed during direct appeal may
not be asserted again under § 2255.
F.3d 1131, 1134 (5th Cir. 1994).

United States v. Segler, 37
If the Petitioner failed to

challenge his conviction or sentence on direct review, but raises
either constitutional or jurisdictional error for the first time on
collateral review, he must first show both cause for his procedural
default and actual prejudice resulting from the claimed error, or
must show that he is actually innocent.
614, 622 (1998); Segler, 37 F.3d at 1133.

Bousley v. U.S., 523 U.S.
If the claimed error is

not of constitutional or jurisdictional magnitude, the defendant
must show the error would result in a complete miscarriage of

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justice.

Segler, 37 F.3d at 1133.

A claim for ineffective

assistance of counsel, however, may be raised for the first time in
a collateral proceeding, whether or not the issue could have been
raised on direct appeal.

Massaro v. U.S., 538 U.S. 500, 509

(2003).
Ineffective Assistance of Counsel
Ineffective assistance of counsel is a recognized basis for
invalidating a conviction under the Sixth Amendment. United States
v. Urias-Marrufo, 744 F.3d 362, 365 (5th Cir. 2014). An ineffective
assistance of counsel claim under the Sixth Amendment is a mixed
question of law and fact.
698 (1984).

Strickland v. Washington, 466 U.S. 668,

To prevail on such a claim, a petitioner must show by

a preponderance of the evidence that (1) counsel's performance was
deficient, i.e., that counsel made errors so serious that he or she
was not functioning as "counsel" guaranteed by the sixth amendment
and fell below an objective standard of reasonableness, and (2)
that the defense was prejudiced by that deficient performance,
i.e., that there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been
different and the petitioner was thus deprived of a fundamentally
fair trial and reliable outcome. Id. at 694; Lockhart v. Fretwell,
506 U.S. 364, 369 (1993); U.S. v. Wines, 691 F.3d 599, 611 (5th Cir.
2012), cert. denied, 133 S. Ct. 892 (5th Cir. 2013). The likelihood
of a different result must be substantial, not merely conceivable:
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“Counsel’s errors must be ‘so serious as to deprive the defendant
of a fair trial, whose result is reliable.’”

Harrington v.

Richter, 526 U.S. 86, 104 (2011), citing Strickland, 466 U.S. at
687. The court may examine either Strickland prong first and if it
is found to be dispositive, it is not necessary to address the
other.

United States v. Webster, 392 F.3d 787, 794 & n.12 (5th Cir.

2014), citing Buxton v. Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989).
“Judicial

scrutiny

of

counsel's

performance

must

be

highly

deferential," making every effort to "eliminate the distorting
effects of hindsight," and there is a strong presumption that
strategic

or

investigation

tactical
lie

within

reasonable performance.

decisions
the

wide

Strickland,

made
range

after
of

an
an

adequate

objectively

466 U.S. at 689.

“‘A

conscious and informed decision of trial tactics and strategy
cannot be the basis for constitutionally ineffective assistance of
counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness.’” United States v. Holmes, 406 F.3d
337, 360 (5th Cir. 2005), quoting Cotton v. Cockrell, 343 F.3d 746,
752-53 (5th Cir. 2003). “We will not find inadequate representation
merely because, with the benefit of hindsight, we disagree with
counsel’s strategic choices.”

Kitchens v. Johnson, 190 F.3d 698,

701 (5th Cir. 1999), quoting Green v. Johnson, 116 F.3d 1115, 1122
(5th Cir. 1997).
Conclusory allegations of ineffective assistance of counsel
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are insufficient to raise a constitutional issue.

Miller v.

Johnson, 200 F.3d 274, 282 (5th Cir. 2000).
A defendant’s Sixth Amendment right to counsel extends to the
plea bargaining process.

Lafler v. Cooper, 132 S. Ct. 1376, 1384

(2012), citing inter alia McMann v. Richardson, 397 U.S. 759, 771
(1970).

A voluntary guilty plea waives all nonjurisdictional

defects in the proceedings against the defendant except where the
ineffectiveness relates to the voluntariness of the guilty plea.
Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied,
466 U.S. 906 (1984).

The defendant must show “that there is a

reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Under the Sixth Amendment, applicable to the States under the
Fourteenth

Amendment,

convicted

persons

are

also

entitled

to

effective assistance of counsel on first appeal as of right.
Cuyler v. Sullivan, 446 U.S. 333 (1980); Evitts v. Lucey, 469 U.S.
387 (1985); Douglas v. California, 372 U.S. 353, 356-57 (1963);
U.S. v. Merida, 985 F.2d 198, 202 (5th Cir. 1993).2
2

The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A,
provides that an attorney must be appointed for a financially
eligible person in criminal proceedings “from his initial
appearance . . . through appeal, including ancillary matters
appropriate to the proceedings,” or who “is entitled to appointment
of counsel under the sixth amendment to the Constitution,”
§
3006(a)(1)(H), (c). Adelke v. United States, 550 Fed. Appx. 237,
239 (5th Cir. 2013). Postconviction proceedings do not qualify as
“ancillary proceedings under § 3006A, and there is no
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Callen’s First § 2255 Motion and Supplement
Charged

with

two

co-conspirators,

Maximiano

De

Leon

and

Fidencio Chapa, Jr., Callen pled unconditionally guilty, without a
plea agreement, to the following three counts on the day trial was
to commence: (1) conspiracy to possess with intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(ii) and 846; (2) possession with intent to
distribute five kilograms of cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(ii); and (3) aiding and abetting in the
laundering of monetary instruments in violation of 18 U.S.C. §§ 2
and

1956(a)(1)(A)(i).

He

was

sentenced

to

188

months

of

incarceration for each count, to run concurrently, a five-year term
of supervised release, a $300 special assessment and a $5,000 fine.
On appeal the Fifth Circuit held that Callen’s claim of speedy
trial violation had been waived because he entered an unconditional
guilty plea, which waived all nonjurisdictional defects in prior
proceedings.
Callen’s initial § 2255 motion raises the following claims for
relief:

(1) ineffective assistance of counsel in violation of

Callen’s Sixth Amendment right during sentencing phase of criminal
proceedings by failing to familiarize himself with and understand

constitutional right to counsel in postconviction proceedings. Id.
A court may appoint counsel “for any financially eligible person
who . . . is seeking relief” under 28 U.S.C. § 2255 if it
“determines that the interests of justice so require.” Id., citing
CJA, 18 U.S.C. § 3006(A).
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the

United

States

Sentencing

Guidelines,

resulting

in

their

misapplication and a higher sentence for Callen; (2) ineffective
assistance of counsel during plea negotiations when counsel failed
to define for Callen the legal meaning of “mixture or substance,”
as employed in Count 2, failed to inform him how the Sentencing
Guidelines applied to his case, and failed to tell him that he
would be pleading guilty to an offense that would permit a sentence
enhancement; and (3) ineffective assistance of counsel on appeal
“when he abandoned” Callen and did not file an appeal or even a
notice of appeal of his sentence because counsel believed that some
undefined illegal activity had occurred during Callen’s sentencing.
In his “Amendment” (#282) to his § 2255 motion Callen adds the
following claims for relief:

(1) counsel was ineffective for

failing to obtain consent from the Court or the Government to
appeal the Court’s denial of his motion to dismiss for violation of
his right to a speedy trial; (2) counsel was ineffective for
failing to seek a conditional plea that would allow him to appeal
the issue of the speedy trial violation or a plea agreement that
would have given him an additional one-point reduction in his base
offense level pursuant to U.S.S.G. § 3E.1(b) and ultimately a lower
sentence; and (3) counsel was ineffective in failing to preserve
the speedy trial issue for appeal.
Callen

moved

for

leave

to

file

an

attached

proposed

supplemental § 2255 petition (#286), with the attachment adding to

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his claims of ineffective assistance of counsel at the plea stage
that counsel led him to plead guilty (1) by erroneously stating
that Callen’s offense level under the Sentencing Guidelines would
be 32 and (2) by failing to advise Callen that if he pled guilty to
distribution of cocaine, he could be punished for relevant conduct
in

uncharged

heroin

and

marijuana

distribution,

based

on

a

preponderance of the evidence standard; (3) by asserting that
Callen could appeal the denial of his motion to dismiss the
indictment based on the violation of his right to a speedy trial if
he made an open plea of guilty; and (4) by failing at the
sentencing phase to investigate and interview mitigation witness
Deborah Wright and failing to argue adequately that Callen should
be given the third point for acceptance of responsibility.
Callen’s

objection

(#289)

to

the

first

memorandum

and

recommendation and his motion for summary judgment argue that the
arrest warrant issued on September 5, 2003 did not survive the sixyear statute of limitations in 26 U.S.C. § 6531 for “criminal
prosecutions,” given the passage of seven years and four months
after his indictment was handed down, during which the Government
claims he was a fugitive living under a false name in Detroit,
Michigan, until he was again arrested and arraigned on February 18,
2011 and even more time before he was rearraigned on February 7,
2012 on the original indictment.

Callen contends that the warrant

that issued on August 15, 2003 expired on August 14, 2009, before

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his arrest in 2011, and therefore the charges against him must be
dismissed and the judgment and sentence vacated.
The Magistrate Judge recommended in her first memorandum and
recommendation (#287 at pp. 18-20) and in her second (#298 at pp.
8-9) that the Court deny the motion for leave to file the proposed
supplemental § 2255 petition (#286) as time-barred.

The Court

agrees with her reasons. Moreover the Magistrate Judge opined, and
this Court concurs as a matter of law, that even if proposed
supplemental § 2255 petition (#286) had been timely filed, the
claims do not apply because the six-year statute of limitations on
which Callen relied, 26 U.S.C. § 6531,3 applies to offenses under
the internal revenue laws, not to the drug and money laundering
charges

that

were

brought

against

Callen.

That

statute

of

limitations argument was also the basis for Callen’s first motion
for summary judgment, so it is denied for the same reason.
This statute of limitations issue is the only objection that
Callen

has

filed

recommendation.

to

the

Magistrate

Judge’s

memorandum

and

Therefore the Court has reviewed the remainder of

Magistrate Judge’s memoranda and recommendations for plain error in
the facts and the law.
COURT’S CONCLUSIONS AND ORDERS
Having carefully reviewed the above listed documents and all
3

Section 6531 expressly states at the very beginning, “No
person shall be prosecuted, tried, or punished for any of the
various offenses arising under the internal revenue laws . . . .”
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responses

and

replies,

the

Court

fully

concurs

with

the

Magistrate’s first and second memoranda and recommendations (#287
and 298) as to both the facts and the law, and finds no error.
Accordingly the Court hereby
ADOPTS both memoranda and recommendations (#287 and 298) as
its own and
ORDERS the following:
(1)

Callen’s motion to supplement his § 2255 motion

(#282) is GRANTED;
(2) Callen’s motion to stay (#300) is MOOT;
(3) Callen’s second motion for summary judgment (#294) is
MOOT;
(4) Callen’s motion for extension (#299) is DENIED;
(5) Callen’s motion for leave to file (#286) is DENIED as
time-barred and futile;
(6) Callen’s motion for summary judgment (#288) is DENIED
as a matter of law;
(7) Callen’s Objection (#289) is OVERRULED; and
(8) the Government’s motion to dismiss (#277) is GRANTED
WITH PREJUDICE.
Furthermore, an appeal from a denial of federal habeas corpus
relief may only proceed if the district court issues a certificate
of appealability.

28 U.S.C. § 2253; Fed. R. App. P. 22(b). “A

certificate of appealability may issue . . . only if the applicant

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has made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

“A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issue presented are adequate to
deserve encouragement to proceed further.”

Miller-El v. Cockrell,

537 U.S. 322, 327 (2003), citing Slack v. McDaniel, 529 U.S. 473,
484 (2000).

Where the district court denies a § 2255 motion on the

merits, to warrant a certificate of appealability a Movant must be
able to show that “reasonable jurists would find the district
court’s

assessment

of

the

constitutional

claims

debatable

wrong.”

Hanry v. Cockrell, 327 F.2d 429, 431 (5th Cir. 2003).

or
A

district court may deny a certificate of appealability sua sponte.
Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir. 2008), citing
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
The Court finds that given the facts of his offense, arrests,
and unconditional guilty plea, Callen has failed to show a denial
of his constitutional rights or that any of his claims for relief
are subject to debate among jurists of reason.

Accordingly the

Court
ORDERS that a certificate of appealability is DENIED.
A final judgment will issue by separate instrument.
SIGNED at Houston, Texas, this

31st

day of

January , 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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