Carter v. The United States of America

Filing 3

ORDER. Petitioner Jonathan Carter's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Civil Document No. 1 , Criminal Document No. 183) is DENIED. The Court further ORDERS that Respondent United States' Memorandum in opposition to § 2255 Motion (Criminal Document No. 188) (moving to dismiss Carter's 2255 motion) is GRANTED. THIS IS A FINAL JUDGMENT. (Signed by Judge David Hittner) Parties notified. (jww4)

United States District Court
Southern District of Texas

ENTERED
June 04, 2024

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JONATHAN CARTER,
Petitioner,
V.

UNITED STATES OF AlvIERICA,
Respondent.

Nathan Ochsner, Clerk

§
§
§
§
§ Civil Action No. H-23-4384
§ Criminal Action No. H-19-380-2
§
§
§
ORDER

Pending before the Court are Petitioner Jonathan Carter's Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Civil Document No. 1, Criminal Document No. 183) and the United
States' Memorandum in opposition to§ 2255 Motion (Criminal Document No. 188).
Having considered the motions, submissions, and applicable law, the Court
determines the Respondent's motion should be granted, and the Petitioner's motion
should be denied.
I. BACKGROUND
Carter was a participant in four take-over bank robberies from October 2018
through February 2019. 1 During one of the robberies, Carter and another robber

1

Appeal Transcript ofRearraignment, Criminal Document No. 166 at 53:1-63:25.

brandished guns at bank employees and customers while a third robber wielded a
knife. 2 During that robbery, Carter used either his hand or his gun to strike an
employee who tried to ask a question. 3
For his part in the crimes, Carter pleaded guilty to three counts of aiding and
abetting bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2, one count of
aiding and abetting armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d),
and § 2, and one count of aiding and abetting the brandishing of a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2. 4
This Court found that a guidelines sentence would not properly account for the
sentencing factors listed at 18 U.S.C. § 3553(a). 5 The Court found that the record
showed Carter was "a true menace to the community with absolutely no respect for
the law." Accordingly, this Court imposed an upward variance, sentencing Carter to
240 months imprisonment on each robbery count (concurrent to one another) and a .
consecutive term of 84 months on the gun charge, yielding an aggregate term of324
months imprisonment. 6

2

Appeal Transcript ofRearraignment, Criminal Document No. 166 at 57: 16-58:25.

3

Appeal Transcript Rearraignment, Criminal Document No. 166 at 58:11-18.

4

Judgment, Criminal Document No. 138 at 18.

5

Appeal Transcript a/Sentencing, Criminai Document No. 156 at 12:6-13:24.

6

Appeal Transcript a/Sentencing, Criminal Document No. 156 at 12:6-13:24.

2

Carter appealed, challenging this Court's guidelines calculation and arguing
that his above-guidelines sentence was procedurally and substantively unreasonable.
United States v. Carter, No. 20-20367, 2022 WL 964196, at * 1 (5th Cir. Mar. 30,
2022), cert. denied, 143 S. Ct. 371 (2022), and cert. denied sub nom. Ray v. United
States, 143 S. Ct. 788 (2023). The Fifth Circuit denied each of those arguments in
an unpublished opinion, and the Supreme Court later denied Carter's petition for a
writ of certiorari. Carter v. United States, 143 S. Ct. 371 (2022).
On November 17, 2023, Carter, moving pro se, filed a timely 28 U.S.C. §
2255 ("Section 2255")-motion to vacate his sentence. Carter's motion indicated a
separate memorandum would be mailed to the Court in a separate envelope.
However, the Court never received a memorandum and, on December 8, 2023,.
ordered Carter to file his memorandum by January 8, 2024. 7 Additionally, the Court
extended the United States time to respond to February 22, 2024. 8 On February 22,
2024, the United States filed its response asking this Court to dismiss Carter's motion
without further proceedings. It has been over six months since Carter filed his
Section 2255 motion, and the Court has not received any additional memorandum
or argument to support his Section 2255 niotion.

7

Order, Criminal Document No. 187 at 1-2.

8

Order, Criminal Document No. 187 at 1-2.

3

II. STANDARD OF REVIEW
"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." United
States v. Mimms, 43 F.3d 217,219 (5th Cir. 1995) (quoting United States v. Vaughn,

955 F.2d 367, 368 (5th Cir. 1992)). Even if a defendant alleges a constitutional error,
he 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 error. United
States v. Frady, 456 U.S. 152, 167 (1982); see also United States v; Acklen, 47 F.3d

739, 742 (5th Cir. 1995). A petitioner must show "cause" to explain the reason why
the objection was not made at trial or on direct appeal and show "actual prejudice"
was suffered from the alleged errors. Frady, 456 U.S. at 167. To prove "cause," a
petitioner must show an external obstacle prevented him from raising his claims
either at trial or on direct appeal. McCleskey v. Zant, 499 U.S. 467, 497 (1991). To
prove "actual prejudice," the petitioner must show he has suffered an actual and
substantial disadvantage. Frady, 456 U.S. at 170.
To succeed under the "cause" and "actual prejudice" standard, a petitioner
must meet a "significantly higher hurdle" than the plain error standard required on
direct appeal. Id. at 166. This higher standard is appropriate because once the
petitioner's chance to direct appeal has been exhausted, courts are allowed to

4

presume the petitioner was fairly convicted. Id. at 164; see also United States v.

Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (presuming defendant to be fairly
and finally convicted after direct appeal). Ineffective assistance of counsel, if shown
and applicable, will satisfy the requisite cause and prejudice. Acklen, 47 F.3d at 742.
Additionally, a claim for ineffective assistance of counsel is properly brought for the
first time in a § 2255 motion, United States v. Shaid, 937 F.2d 228, 232 (5th Cir.
1991) (en bane).
III. LAW & ANALYSIS
Carter moves, pro se, to vacate, set aside, or correct his sentence pursuant to
Section 2255 on the grounds that his trial counsel ("Trial Counsel") rendered
ineffective assistance of counsel. Carter claims two grounds in support of his motion:
(1) that the charged crime is no longer a crime of violence, and his attorney should
have challenged it, and (2) Trial Counsel failed to request withdrawal [al] of Carter's
guilty plea and pursue trial. Carter does not elaborate in his motion, and as discussed
above, a supplemental memorandum was never filed in this matter. 9 The United
States contends Carter's unsupported claims fail to meet even the liberal pleading
standards for prose litigants and are, alternatively, meritless.

9

The Court notes that Carter stated that a "Memorandum in Support of 2255 Motion
mailed in separate envelope." See Motion Under 28 US.C. § 2255 to vacate, set aside, or
correct sentence, Criminal Document No. 183 at 12. As discussed above, the Court never
received an additional memorandum even after ordering Carter to provide a memorandum.

5

The Court analyzes an allegation of ineffective assistance of counsel in a
§ 2255 motion under the two-prong test established in Strickland v. Washington, 466
U.S. 668 (1984); United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001). The
movant must show his counsel's performance was both deficient and prejudicial to
prevail on an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700;
Willis, 273 F.3d at 598. To show a deficiency, the movant must show his counsel's

assistance was .outside a broad range of what is considered reasonable. Strickland,
466 U.S. at 669. To establish prejudice, the petitioner "must demonstrate 'a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding. would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.' " Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 694). Thus, when a petitioner
challenges his conviction, this issue is whether "a reasonable probability exists that
the jury would have had a reasonable doubt as to guilt.'' Hernandez v. Johnson, 213
F.3d 243,249 (5th Cir. 2000). "This is a heavy burden which requires a 'substantial,'
and not just a 'conceivable,' likelihood of a different result. United States v. Wines,
691 F.3d 599,604 (5th Cir. 2012). "Counsel's errors must be 'so serious as to deprive
the [petitioner] of a fair trial, a trial whose result is reliable.' " Harrington, 562 U.S.
at 104 (quoting Strickland, 466 U.S. at 687). The movant must prove both prongs of

6

the analysis: counsel tendered deficient performance, and the movant suffered
prejudice. Carter v. Johnson, 131 F.3d 452,463 (5th Cir. 1997).
Here, Carter's claims are conclusory and not supported by any evidence or
· fact. Carter seems to contend that the crime he was charged with is no longer a crime
of violence after Supreme Court Decisions in Johnson v. United States, 576 U.S.
591, 596 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019). The Fifth
Circuit has held that bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d),
remains a "crime of violence" under 18 U.S.C. § 924(c) after Johnson and Davis.
United States v. Cheers, 760 F. App'x 272,274 (5th Cir. 2019) (unpublished) (citing
United States v. Brewer, 848 F.3d 711 (5th Cir. 2017)). Additionally, Carter offers

no authority or evidence to support his claims. Accordingly, there is no meritorious
objection or challenge the Trial Counsel could have made regarding the crime of
violence issue.
Carter's additional grounds are similarly conclusory and not supported by any
evidence or facts. Carter's conclusory allegations that the Trial Counsel failed to
object to his above-guideline sentence is contrary to the sentencing. transcript
showing that counsel did lodge an objection. 10 Additionally, Carter's claim that the
Trial Counsel should have moved to withdraw his guilty plea similarly fails. Carter

10

Appeal Transcript a/Sentencing, Criminal Document No. 156 at 16:11-13.

7

was admonished that the Court could "impose a sentence that's more severe or less
severe than the sentence called for by the guidelines[,]" that any sentencing
recommendation from the parties would not bind this Court, and that this Court was
free to assess "any punishment" within the statutory maximum penalties for each
count. 11 Considering that record, Carter fails to meet his burden under either prong
of Strickland. See, e.g., United States v. Bazan, 77 F.3d 473 (5th Cir. 1995)
(unpublished) ("[A]n attorney's incorrect prediction of the application of Sentencing
Guidelines does not constitute ineffective assistance of counsel.") The Court
construes all prose filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
However, even construing Carter's contentions liberally, his claims are conclusory
and fail as a matter oflaw. Therefore, the Court finds Carter's Motion to vacate under
Section 2255 should be denied.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Petitioner Jonathan Carter's Motion under 28 U.S.C. § 2255

to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Civil
Document No. 1, Criminal Document No. 183) is DENIED. The Court further

11

Appeal Transcript Rearraignment, Criminal Document No. 166 at 48:12-51:12.

8

ORDERS that Respondent United States' Memorandum in opposition to §

2255 Motion (Criminal Document No. 188) (moving to dismiss Carter's 2255
motion) is GRANTED.
THIS IS A FINAL JUDGMENT. 12

SIGNED at Houston, Texas, on this Jf_ day of June 2024.

~v~
United States District Judge

12

A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the pleadings and the applicable law, the Court concludes
reasonable jurists would not find its assessment of the claims debatable or wrong. See Slack
v. McDaniel, 529 U.S. 473, 483-84 ("To obtain a COA under§ 2253(c), a habeas prisoner
must make a substantial showing of the denial of a constitutional right, a demonstration
that ... includes showing that reasonable jurists could debate whether ... the petitioner
should have been resolved in a different manner .... "). Because Carter does not allege
facts showing his claim could be resolved in a different manner, a certificate of
appealability will not be issued.

9