Newton v. United States of America

Filing 5

Copy of MEMORANDUM OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed in 4:19-cr-816-1. COA is denied. (Signed by Judge Sim Lake) Parties notified. (glc4)

(

United States District Court
Southern District of Texas

ENTERED
May 09, 2024

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF AMERICA,

Nathan Ochsner, Clerk

§
§

Plaintiff/Respondent,

§
§

v.

§

S YE NEWTON,

§

CRIMINAL NUMBER H-19-816-01
(CIVIL ACTION NO. H-24-0121)

§
§

Defendant/Petitioner.

§

MEMORANDUM OPINION AND ORDER

Sye Newton ("Petitiorier~) was convicted of bank robbery and
brandishing a firearm in furtherance of a crime of violence in this
court. 1

The court sentenced Petitioner to 360 months in custody. 2

Pending before the court are Petitioner's Motion for Evidentiary
Hearing in Support of Alibi Employment Records ( "Motion for Hearing
Re Alibi")

(Docket Entry No.

187),

Petitioner's ·Title 28 U.S.C.

§ 2255 Writ of Habeas Corpus ("Petitioner's§ 2255 Motion")

(Docket

Entry No. 191), and the United States' Answer to 28 U.S.C. § 2255
Motion and Motion for Summary Judgment ("Government.- s MSJ")

(Docket

1

Indictment, Docket Entry No. 1, pp. 1-2; Verdict of the Jury
Form ("Verdict"), Docket Entry No. 78, pp." 1-2 . . for purppses .. of
identificati Verdict on all page numbers reference the pagination
imprinted at the top of the page by the court's Electronic Case
Filing ("ECF") system.
2

Judgm~nf in a Criminal Case, Docket Enfry No. 128, p. 2.

Entry No. 204) . 3

For the reasons stated below, Pet:itioner' s Motion
-

-

for Hearing Re Alibi and Petitioner's§ 22~5 MotioThwill-be denied,
the G~vernment' s MSJ. will be granted, and the _accompanying civil
action will be dismissed with prejudice.

I.
A.

Background

Petitioner's Indictment, Trial, and Sentencing
Petitioner was inciict~d on November 6, 2019, on one count of

bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and one
count

of brandishing

a

firearm

during

a

violation of 18 U.S.C. § 924 (c) (1) (A) (ii) . 4

crime - of violence

in

The Indictment alleged

that on March 25, 2019, Petitioner took $15,742 from an IBC Bank in
Houston,

Texas,

and that Petitioner brandished a firearm in the

process. 5
At trial witnesses testified about a March 25, 2019, robbery
at an IBC Bank at 8203 South Kirkwood Drive in Houston,
The robber - wearing a hijab - had a gun in his hand. 7

Texas. 6

The robber

yelled for bank patrons to· get down and obtained i:nOney from each of

3

The court
Government."
•

4

hereafter

refers

to

the

United States

as

"the

Iridict~eni, Docket Eritry No. 1, pp. 1-2.·

6

Transcript of Jury· ·Trial • Proceedings _:_ Day ·1> of Two ("Day •1
Trial Transcript"), Docket Entry-No. 168, p .. 78 lines 9-10, p. 80
lines 17-25,- p·: 82 lines 18~25, p. 86 lines 6-25, p. 91 lines -9-1-4,
p. 118 lines 21-22, p. 119 lines 18-21, p. 126 lipes 8-23, p. 131
lines 18~19, p. 132 lines 6-17, p. 136 lines 4-25,
137 lines 1-8.

t.

~Id. at· 86lines 14·~20;, p. 124 lines 11-12;·p.-134 lines 10~18;
Government's Exhibit 4, Docket Entry No. 136-2.
-2-

th~ tellers at, gunpoint~ 8

Witnesses identified the robber-as a

male based on.his voice and face.

9

_

After the robber left the bank, one patrcin want outside, saw
the robber, and- began following him bT car. 10

•

The patron testified

that he saw the robber take off his disguise arid throw it in a
dumpster. 11
female. 12

The patron

saw

the

robber

get

int-6

a

car with

a

The patron followed them to a Valero gas station and took

a photo of the car -

a Eord_Escape with iic~ri$e plate FCP 0317. 13

After some further pursuit, the patron retrirned to the Valero and
showed the photo of the car to a nearby officer. 14
Two days

later a

Houston Police Department

("HPD")

patrol

officer respor1ded to a nearby. complaint· about •an i1legally <parked
car - a'Ford Escape with license plate FCP 0317. 15

The officer ran

8

Day 1 Trial_ Transcript,· Docket Entry No. 168, p. 8 6 lines 2325, p.·- 126 lines· 4-23, p~ 127 lines 8-11, p.--i36 lines ·20_:25,
p. 137 lines 1-8; Govern~ent's Exhibit 4, Docket Entry No. 136-2.
,·

9

Day 1 Trial Transcript, Docket Entry No.
18, •p.' 126 lines 1-3. Althou·gh the -robber was
~itness testified that she got a closeup view
when he stooped to-pick up his glasses. Id'.·
p. 89 lines 15-21, 25, p. 90 lines 1-6.

168, p. 8 8 lines 1 7weai<ing. ahijab, .one
of the robber's face
·at-.38 1-ines "18-25,

10

rd. at 13 9 lines 2-3, 18-20, p. 142 lines 5-7.

11

Id. at 142 lines 9-10.

12

Id. at 144 lines 5-14.

13

Id. at 148 lines 24-25, p. 148 lines ·4-9, p. 149 lines 21-25,
p. _ 150 lin~s .1, 14-15·;-, Government~ s E_xhibi t - Eti.• • -Docket Ent_ry
No. 136-3.
14

Day 1·Tr{~f Transcript, Docket Entry No.
10~25; p~ 155 lines 1-2.
15

Icf. at 171 line~ -13-:22, p. 17 3 lines 3-8.

-3-

lGS, p. 154 lines

7-..
\

the plate, which brought up a suspicious hit and a case number. 16
The_ offlcer had. the v~hicle towed t~ ~-- secure· evi:cf~nce lo't'·; 17
~fter obtaining~ sear~h warrant, an HPD investigator examined
< -

the

car

and

'

•

.·,;

found numerous

personal

items

inside,

including a

consular records request with Petitioner's name on it and a case of
9-millimeter ammunition . 18
various

parts

fingerprints.

of

the

The officer collected fingerprints from

car,

some

of

which matched

Petitioner's

19

After Petitioner was located and arrested in San Antonio, HPD
robbery detectives
During

the

~Obbeiy. 2 !

interviewed Petitioner on August

interview,

Petitioner

conf_essed

to

12,

2019. 20

committing

the

In the.process Petitioner mentioned datails' about the

~Id.· at 174 lines 1~4.
17

l:d. • at 175 lines 12-20.

18

Id. at 180 lines 8-10, 22-25, p .• 181 lines 1-2; Consular
~ital Record Search Request, Docket Entry No. 137; Government's
Exhibit 12, D~ck~t Eritry No. 137-2; Government's-Ex~ibit 13, 6otket
Entry;No. 137-3.
~Day i_Trial Transcript, Docket Entry No. 168, p. 192 lines
20~14, p: 193 lines 19-25, p. 194 lines 1-8; p. 217 lines 13-~5;
p. 218 lines 1--:.12; Government's Exhibit 15, _Docke.t Entry No. 137--:-4;
Govern.merit's Exhibit 1'6, • Docket Entry No.· 137-5'. ,:,.
•
·of Jury Trial Proceedings _: Day :f of Two, Docket
Entry_No. 169, p. 6 lines ~-5 and lines.13--:16, p. 36 lines 19-20,
p.· • ·37 lines· ·24-25, - p. • '- 38 lines 1-6;-. Sye Ne~·iton· Statement~
Government's
Exhibit
18,
Docket
Entry .No.. • 138.
•
. .
.
'
. . ' . •. .
. -~
.
.
: ...:_~ .
·:. ' 20 rrra~s'cl'.:"ipt'

•

,..

:

,

'

21

Sye m~wton Statement, Government's Exhibit
1: 11: 01 (time stamped 3:10:26 p.m.-3:11:41 p.m.) ..
-4-

18,

L 09: 46-

robbery tha:t: th~, c:ietec.tives. had not disclosed

to

h-{:;n,_- includipg the

amount- of money •stolen~ 22
Tl)e jury fciupd Petitioner .guilty on '..boti/ 'cqui1ts. 23

The court

sentenced Petitioner to 276 months in cu~tody as to Count One and
84 months as to Count Two, to run consecutively for a total of 360
months in custody. 24

B,

Petitioner's Appeal
Petitioner appealed his

convictions

to

the_ Fifth Circut t.

Petitioner argued that the evidence in the car should have been
suppressed because the search warrant was insuffici~nt and that his
cbnfes~ion was the product of police coercion.
pnited States v.
.
. Newt~n~ No. 22...:-20375, 2023 WL 8074220, at *1 (5fh Cir. Nov._ 21;
2623)

(per curiam).

The Fifth Circuit rejected bo-:::.h arguments and

affirmed Petiti6n~~'s 66n~ictions.

C.

Id. ~t *1-2:

The Partie$' Pending Motions
On November 3, 2023, Petitioner filed his Motion for Hearing

Re Alibi. 25

Petitioner argues that he has new evidence to show that

he was in El Paso on the date of the robbery. 26
22

Petitioner states

Id. at 1:18:0.5-1-:18:.35 (time stamped 3:J,8-:4:5'.-p.m. -4:19_:15

p .m,.)..
23

•

...

2

V~rdict-, Docket Entry No. 7 8, pp. 1-2.

~judgment in a Criminal Case, Docket Entry Ni'5·,:· 128~
,• r·

25
-- - •

Motfc:in •:for Hearin·g Re Alibi 1

Aff

t'

,-,f

bocket Entry Ne. 187

ida-.ii of Sye Newto~ •in Support bf M~tiorI.-toi Eviden,tia~y
Hearing Ba~ed on Alibi.Ernployment Record, Docket Entry No. 187-1,
p. 1-15, pp. 3~4 ii 11-14:
••• -·. 26

that ··he .wc3.s w_orking for a temp agency ,"Family En¢eavors/:Intrepid
Stafffng- Services, ",,.under the .ali9-s Micah_ Newton, ,Jr. 27

•

In. support
i'

Petit~b~er·attaches:what·purports to:be~~n email frorri. Ehdeavors
confirm'ing : that ' they employed someone

under the

name

qf Micah

Newton from September 25, 2018, through January 1, 2020, on an "as
needed" basis, but the email does not.specify the location of Micah
Newton's

job

or

state

whether

he

worked

on

MC:~rch

25,: 2019. 28

Petitioner also filed an "Admission of Micah Newton.:" which states:
1.
I plead the fifth amendment as to having any
knowledge that Sye Newton 1:1sed or may. _have used , my
personal information includirig my name, Social Security
number, date of birth in the month of September 2018 ..
2.
I do admit that I never suubmi tted · a,ny employment
forms to ''Endeavors"· ([or] .. any other temp agencies in· the
.San Antonio, TX area) to work with FEMA c:ompanies in the
months of-September andOctober·2018 .
. 3. :,r admit that T have never been employed -j,s· a direct·
care worker or in any capacity for· temp agenc~2s employed
·by FEMA camps· in the. year 2018 through 2019 :o.'r any• other
·year.
4.
I ad.rnit that it has come to my attention Sye Newton
. , rriay have used my . pers-onal information' <to obtain
employment . by said agencies during the •, months • of
September through October 2018 . 29
•
Petitioner's

§

Petitioner argues

2255 Motion was ·filed on January 11,

2024. 30

( 1) that Petit,ioner' s trial co1i1:isel Cordt. Akers

28

Correspondence Re: employment,· reference che_ck, Docket Entry
No. 187-1, p. _ 6:,,
29

Admission ,of Micah Newton, • Docket Entry No. 186.

30 Peti tioner'

s

§ • 2255

'-Motion, • Docket 'Entry No.•; •191 '.:

was ineffective in failing to investigate and present his El Paso
alibi

at-- triai, • •(2-) ··'that Akers

invest1gate -a:nd

was

dev~lorr an- ls·sue

courthouse cafeteria,

(3)

ineffective

ln - failing to

o{ • jifro-r:: m.fscoriduct

in

the

that Akers was ineffective in advising

Petitioner not to testify at trial,

(4)

that Petitioner is actually

innocent based on his new alibi evidence, and

(5)

that his sentence

improperly considered prior convictions that are currently being
collaterally· attacked. 3 i
The Government filed a motion to compel Akers to provide an
affidavit

addressing

Petitioner's

assistance of counsel. 32

allegations

of

ineffective

The court granted the motion-, 33 and Akers

provided an affidavit stating:
I. •- General Response
. At ho: point in the proceeding, -trial or• pretrial-,
did counsel go a~ainst Mr. Newton's wishes oi refuse to
.do anything he requested; In the multiple meiitings with
Newton, strategy was always discussed along with the pros
'. and cons of each course of action. • The only ::strategies •
that caused :significant disagreement between counsel and
defehdant were 11) Mr. Newton~s decision tb file multiple
pro se lawsuits against Vanessa Gilmore, the judge
presiding over his trial, . and both prosecutors, and:
(2)
Mr. Newton's decision on multiple occasions to
proceed pro se.. In these discussions, counsel advised
defendant of the dangers of doing so, and defendant each
time changed his mind;
31

Id.- at 2, _4.

32

Uni ted ·States' Motion for an Order Directing Counsel to
Provide :an Affidavit arid Motion to Amend Scheduling Order, Docket_
Entry No. 198, p. 1.
33

Order Directing Counsel to Provide an Affidavit and Amending
Scheduling•order,•Docket Etitry No. 199~ p. 2~
-7-

Multiple times 'during "the triai, · Newtoh expressed
·that he·had "never had a real trial lawyer represent him
before"
and
thanked
counsel
profusely'. for
his
repres~ntation. He wrote counsel multip'ie· not,.es thanking ,
him after··cross examinations and closing argufhent, which
counsel kept.
See Exhibit 1.
Mr .. Newton vias a [ t] rio
point upset with counsel's performance or,·: strategic
decisions until the verdict was read.
II.

Alibi Defense

The evidence against Mr. Newton was stro11g. A blaqk
male dressed in a hij ab robbed a bank at gu:npoint.
IA
witness identified the license plate of the'vehicle in
which.the disguised bank robber·escaped.
This vehicle
was found abandoned blocks away from ·the bank.
It
contained~ among other things, Sye Newton's fingerprints.
It also contained several homemade board games, which
Newton claimed ownership of to the police, several pieces
of his identifying information, and several ly.rics, poems
a.nd writings. Mr. Newton likewise claimed ownership and
authorship of these notes and lyrics to law ehforcement.
At least one of these writings contained· rap lyrics about
disguising in a hijab to rob banks -.the very~same modus
operandi 6f the individual who robbed thi~ b~nkr
.when Mr." Newton ·was arrested· some time', later, he
waived h1s Miranda:.rights and provide [d] law :E:nforcement
with full· confessibrt. that lasted··several~ hours 'and
included. information· only Someone involved. with the
robbery would know, such as the exact amount of money
stolen.
Upon Counsel being ~ppointed and meetint defendant
after -the· public - defender was removed, Mr. •Newton told
defense colinsel that he was not· robbing the b~:;;1k, but was
in Las Vegas staying with his mother. Counsel called his
mother and inquired, and-was told that she wop-ld have to
investigate the:. dates b'a.sed on which ~ fi-re tonics'· she
n.a.d made during that time; becaus·e •she could r:emember the
type of potion she wa.s making when he was th?,re. . Aftera number of conversations with defendant's mother yielded
no fruit,- Newton exp'lained to counsel. that his: cla.im that
he· was in Las. Vegas was· false, . and that he· made that
claim because he did not yet trust defense counsel .
. :Counsel· revi·ewed ~multiple notes of conversations
with prior counsel Dennis Hester, where~rt he spoke with
Mr. Newton, ,Alisa Pear-son,: and others who claimed that

Newton was in fact ih San Antonio ~hen the ~obbery was
col:nmi tted. ·
Newton then told defense counsel that ,he ·was near
the robbery, but ,was not the bank robber nor was·he in
the getaway car; .. He-stated ·that there was some sort of
agreement between his girlfriend, Alisa Pearsori, the bank
manager, and her ex..:.boyfriend . that resul t.ed in the
robbing of the bank. • He was not• involved,· but he was
present for conversations about it and witnessed it.
Later, Newton told · defense counsel that he was
actua1ly somewhere else.
He stated that he was in
El· Paso working for an unnamed company under his
brother's name, Micah Newton.
Counsel responded that
[this alibi] would take three factors to pi~sent as a
defense: (1) • Micah Newton's cooperation and- statement
that· he was not employed there,· (2) records from the
company
showing
Micah
was
empioyed
there,
and
(3) employment records that matched that Ne~iton was in
fact in El Paso at the exact day of the robbery.
Counsel contacted Micah Newton, ·who stated he would
check into the matter.
He then refused to return phone
calls.
Counsel strategically made the decision not to
subpoena· Micah Newton as. a witness when he wa's possibly
adverse to·defendant and would not testify voluntarily.
Counsel then discussed with defendant that if a RU:le 16
subpoena.was filed andno·helpful records wer'ereturnedi
as defense counsel suspected, then the Government would
have proof that he was not where he claims he'\~as; in the
event defendant elected-to testify·at trial ~~a decision
defendant would not discuss with counsel . ui'l.til trial
commenced-.
- When trial neared, counsel asked defendant if· he
wished • counsel
to. file
subpoenas
.andY • contin'Cle
investigating the El Paso alibi or if his energies shouid
be spent preparing fo·r trial and if the El Pas.:b alibi :w{:is
a red herring.
Defendant responded that c6~hsel wo~id
not· find any evidence regarding his being ii1· El Pasq,
that it was a waste of time, and counsel should focus
preparing c~oss examinations. Counsel took t~is to me~n
that Newton was abandoning his claim that he was livi0g
in El Paso at the time of the robbery as he had.abandon~d
his other claims of separate alibis with ~ourisel.
!
~

.

•

I

pn

· Counsel. was satisfied that a strategy pr~sehting any
sdrt • of alibi defense at trial would· cause<oan instant
loss ·of credibility •with the jury;· It was·dJ.cided, and
-9-

agreed.:..p~ by de'fendarit, that. focusing as much as possible
on .a false confession and holes in the. investJg·ation w·as
~e~en~a~t's ·be~t· po~~ibie· €rial stritigy ~~iven the
mountinc,J _eyid,e_nce aga,inst hirn.

:pr.

De.fendarit's Testimoriy at"Trial
·.:::t
._._:

!

'

,

.'.'

.-

•:'

-

•

Defendant claims that defense counsel was deficient
when he counseled Newton not to testify at trial.
Mr .. Newton had several convictions for assaults,
firearms offenses, and robbery, some of which.could have
been admissible against him at trial - one of which
included holding ariother inmate hostage while,in custody
in Delaware. Likewise, the Government had not placed the
rap lyrics describ::j_ng the.offense into evidence. It was
discussed between counsel and ,defendant that those
exhibits may become admissible in cross examination arid
be detrimental to his defense.
Likewise, defendant had
filed several prose motions for release from.detention,
none of which included any alibi but instead focused on
defendant's pending patents and board game d~velopment.
This ·too-could.be used very.well against defendant on
cross examination. Finally,-there were enough pieces of
testimony and evidence that we.te not played, discussed
with; .or· shown to the jury that defenie counsel
strategically believed it would be smarter to rest behind
the government and focus on the burden of proof rather
than give them an opportunity for any rebuttal.
It was :decided; ~ery rhut0ally with defendant, that
d~fendant should not elect to testify in his own behalf
as part of trial strategy and allow the jury~o focus· on
the possibility of reasonable doubt.· Defer1d2n:t agreed:
. IV.

Failure to Investigate Jury Misconduct·

Defendant claims that counsel failed to'investigate
j uty • misconduct .. • • The information imparted :.to defense
counsel:regarding the alleged jury misconduct was ·that
Mr.· Newton's family. overheard a juror in the· cafeteria
say the phrase . "these young· people . think they .slick"
without any .context•;.·
Mr. Newton claimed to defense
counsel that this was
(1) • age discrimination, and
(2).
improper
deliberations
in
his
ca-Se
before
deliberations began.
Counsel did not, ·and does not; believe that this
statement amounti to jury misconduct.
The jurors were
not observed to be discussing the case, theeviderice,· or
-10-

the parties.
The "young people think they slick"
comment, if made, supposedly overheard by Mr. Newton's
family members could have very well been talking about
other matters with no context or relevance to the case.
Counsel believed· and does believe that presenting that as
a motion for new trial.or as grounds for examining the
jury for possible misconduct would amount to a fraud on
the Court and a violation of counsei's duty of candor to
the Court.
When counsel imparted this to defendant, he elected·
to represent himself and filed his own motions, as he had
done so throughout representation. He was then sentenced
to 360 months' incarceration. 34
The Government's MSJ was filed on April 10, 2024. 35

The Government

argues that Petitioner's claims are inadequately pled, procedurally
defaulted, and frivolous.

36

On May 7, 2024, Petitioner filed Sye

Newton's Reply to United States Answer to 28 U.S.C .. § 2255 Motion
and Motion for Summary Judgment (Docket Entry No. 206).

II.
A.

Legal Standard

Title 28 U.S.C. § 2255
28 U.S. C.

§

2255 (a)

states that a prisoner sentenced by a

federal court may move that court "to vacate, set aside or correct
the sentence" "upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States . .

or

"A defendant

can

is

otherwise

subject to

collateral attack."

challenge a final conviction, but only on issues of constitutional
or jurisdictional magnitude."

United States v. Willis, 273 F.3d

34

Affidavit of Cordt Akers, Docket Entry No. 200, pp. 2-8.

35

Government's MSJ, Docket Entry No. 204.

36

Id. at 14.
-11-

592,

595

-(5th

Cir.

2001).

"[T] o

obtain

collateral

relief

a

prisoner must clear a significantly.higher hurdle 'than would exist
on direct appeal."

United States v. Frady, 102 S. Ct. 1584, 1593

(1982);
The

court

"may not

consider an issue

disposed of

in

[the

defendant's] previous appeal at the§ 2255 stage.~

United States

v.

(per curiam).

Goudeau,

512 F. App'x 390,

393

(5th Cir.

2013)

Similarly, a dejendant generally may not raise claims in a§ 2255
motion

that

he

has

procedurally

defaulted.

United

Vargas-Soto, 35 F.4th 979, 993 (5th Cir. 2022).

States

"In general,

v.
[i]t

is well settled that where a defendant has procedurally defaulted
a claim by.failing to raise it on direct-review, the claim may be
raised

in

a

demonstrate

§

2255

either

(1)

'actually innocent'
United

States

v.

motion

of

only

if. the

that

that-. he

the

was

convicted."

(.5th

Cir. • 1999)

To show cau·se,

"the movant

Torres,

some

can- first

cc;1.use_ and prejudice, - or .(2)
crime
163

for

F.3d

(internal quotation marks bmitted).
~must . shoy.J

petitioner

objective

which he
909;·

factor

911

e-xternal: :to the

is

defense

impeded counsel'. s. •efforts to comply with the [relevant] - procedural
rule.'"

Vargas'-Soto, 35 F.4th at 993 (quoting DaviJa v. Davis, 137

$._. CL 2058; 2065

(2017)).

A court must grant an evidentiary hearing on·-a. § 2255 • motion
I
I

"[u]nless

the

motion

and

the· files

and

records

of

the

conclusively show that the prisoner is entitled to no relief."

base
28

U;S.C; § 2255(b) .• "When facts are at issue in a§ 2255 proceeding,

-12-

a hearing is required if
trial

~ourt's

(1)

the ~ecordJ

personal. knowledge

or

as supplemented by the

·recollection,

does

not

·conclusively negate the facts alleged in-support Qf the claim fo~
§

2255

relief,

and

(2)

the

movant

would

be

entitled

to

postconviction relief as a legal matter if his factual allegations
are true."

United· States v. Anderson, 832 F. App'x 284, 287 (5th

Cir. 2020)

(per curiam).

A petitioner's "conclusory assertions do

not support the request for an evidentiary hearing."

United States

v. Auten, 632 F~2d 478, 480 (5th Cir. 1980).

Instead, a petitioner

must

likely merit

produce

"independent

indicia

of

the

of her

allegations, typically in the form of one or more affidavits from
reliable third parties."

United States v.

Cervantes,

132 F.3d

1106, 1110 (5th Cir. 1998); United States v. Edwards, 442 F~3d 258,
264

B.

(Sth•.cir. 2006).

Ineffective Assistance of Counsel
"[A] claim for ineffective assistance of counsel is properly

made

in

a

§

2255

motion

because

it

raises

an

issue

of

constitutional magnitude and, as a general rule, cannot be raised
on direct appeal."
(5th Cir. 2003)

United States v. Conley, 349 F.3d 837, 839 n.1

(internal quotation marks omitted).

To prevail_ on

an ineffective assistance of counsel claim, a convicted defendant
must show (1) that defense counsel's performancie was defici~nt and
(2)

that

the

deficient

performance

prejudiced

the

Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984)
-13-

defendant.

Performance

is

deficient

if

the

defendant's

lawyer

"made

errors so serious that [he] was not functioning as the 'counsel'
.

-

.

.

.

'.

guarantee·d the· defendant by the Sixth Amendment."
must indulge a

Id.

"[A] court

strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance."
at 2065.
law

Id.

"[S]trategic choices made after thorough investigation of

and

facts

relevant

unchallengeable."

plausible

options

are

virtually

Id. at 2066.

To show prejudice a
reasonable

to

probability

"defendant must show that there is a

that,

but

for

counsel's

unprofessional

errors, the result of the proceeding would have been different."
Id.

at 2068. -

For a trial· error, the defendant must show that

counsel's errors were "'so serious as to deprive the defendant of
a fair trial~ a trial whose result is reliable.'"

Harrington v.

Richter, 13L S. Ct. 770, 787-88 (2011)
III.
A.

Analysis

Akers' Investigation of Petitioner's El Paso Alibi
Petitioner argues that his convictions must be vacated because

Akers . failed
trial. 37

to

investigate_ and present his

El

Paso alibi

at

"[T]he failure to investigate everyons whose name_ happens

to be mentioned by the
assistance."

defendant does not

sugg:est ineffective

United States v. Cockrell, 720 F.2d 1423, 1428 (5th

~Petitioner's.§ 2255 Motion, Docket Entry No. 191, PP~ 2-3.
-14-

\\ .

Cir.

1983).

"[T] he prese11ta-t;:ion .of testimonial evidence is • a

matter of trial strategy[.]"
500

Schwander v. Blackburn, 750 F,2d 494,

(5th Cir. 1985).
Although Petitioner attaches a statement by Micah Newton and

a purported record of Petitioner's employment start and end dates,
Petitioner presents no evidence (other than his ciwn affidavit) that
he was working in El Paso on the specific day· of the robbery.
Akers

states

that

Petitioner presented multiple,

contradictory

alibis to him and that Petitioner ultimately agreed that pursuing
the El Paso alibi was a waste of time.
Akers was

deficient

in failing

El Pas6 alibi therefore fails.
prejudice.

The. • evidence

overwhelming.

to

Petitioner's claim that

investigate

and present his

Moreover, Petitioner cannot show

against

Petitioner ·".· at

trial

was

Not only did Petitioner confess to committing the

robbery, but in doing so he mentioned details of the robbery that
the·police h~d not disclosed to him.
neither

deficient

performance

nor

Becau~e Petitioner can show
prejudice,

his

ineffective

assistance o16ounsel claim fails.
B.

Akers' Investigation_ of Alleged Juror Miscondu.ct

Petitioner argues that Akers was ineffective in failing to
investigate and seek a new trial based on juror misconduct in the
courtroom cafeteria. 38

Al though Akers

declined to present the

juror's alleged statement to the court, Petitioner previously filed
'

38

Id. at 2.

motions for a new trial and_for acquittal based on~the statement. 39
At ·sentencing, the ~curt considered the juror's alleged statement
and rejected Petitioner's request for a new trial or evidentiary
hearing on the matter. 40
Given

the

vague

nature

of

the

statement

and

the

limited

circumstances in which juror testimony may be considered, it was
r~asonable for Akers to not pursue the matter.

Moreover, because

there_. is .. no iri,dication tha_t the . ~tateme9-t 101.a,s -~pgyt the case or
that it affected the jury's deliberations or verdict,
cannot

show

that

Akers'

decision

prejudiced

him.

Petitioner·
Because

Petitioner can show neither deficient perfot~ance nor prejudice,
his ineffective assistance of counsel claim fails.

C.

Akers' Advice That Petitioner Not Testify at Trial
Petitioner argues that Akers was ineffectivi in advising him

to not testify at trial. 41
out,

But as Akers and the Gbvernment pciint

doing so would have opened the door for the Government to

introduce portions of Petitioner's prejudicial criminal history and
potentially other evidence - including written lyrics found in the
_,;·

car about disguising in a hijab to rob banks.

Petitioner therefore

cannot show that Akers' advice not to testify was deficient or that
39

Rule 33. Motion for New Trial, Docket Entry :·No. 89; [Motion
for] Evidentiary Hearing in Support of Motion· for Acquittal or
Alternativeiy New Triai, Docket Entry No. 90.
%Sentencing Transcript, Do_cket Entry No. 164, p. 3 lines 12•
25, p ;·' 4· lines 1-9.
41

Peti tioner' s

§

2255 Motion, Docket Entry No. 191, p. 4.
-16-

it prejudiced Petitioner.

Petitioner's ineffe6tive assistan~e of

couns~l claim therefore fails.

D,

Petitioner's Actual Innocence Claim
In

support

of

Petitioner's

Motion

for

Hearing

Re ·Alibi,

Petitioner presents new evidence that he argues shows that he was
in El Paso on the date of the robbery.

In Petitioner's § 2255

Motion, Petitioner argues that his new alibi evidence shows that he
is actually innocent of the robbery.
Courts do "not consider habeas relief based on 'freestanding
claims of actual innocence.'"

Floyd v. Vannoy, 894 F.3d 143, 155

(5th Cir. 2018)

(quoting In re Swearingen, 556 F.3d 344, 348 (5th

Cir.

"Instead,

2009)).

a

successful

actti~l-inn6c~n6e

claim

provid~s a 'gate~iy' for the petitioner to proceed on the merits"
bf an•·error that would 'otherwise· be time barred.
House·v. Belli 126 S. Ct. 2064, 2066 (2006)).

Id.

(quoting

As explairied above,

Petitioner's claim that Akers was ineffective for rtot investigating
the El Pa~o alibi ~ails~

Petitioner dbes not argct~ that any-other

error· in the prosecution or trial caused the unavailability Of this
new.evidence.
Construing 'Petitioner's

Motion

for· Hearing 'Re Alibi

as

q

motion for a hew,trial under Feder::al Rul§:: qf_Cr;i:minal Procedure 33,
the •motion fails

on the merits because the •evidence is weak, 42

~The evidence, read liberally, shows only statt and end dates
of Petitioner's purporte'd employm~nt, does not spet::ify the lo6ation
of said employment, and gives ,r10 indica.tion that· there is· more
detailed documentation available.
-17-

i~corisistent 0ith the other al~bis Petitiorier preJented to ikeis,
._,

,..

.

.

.•

and conclusively refuted by the overwhelr~_ing evidence presented at
trial. 43
• Petitioner's Motion -for ·Hearing Re Alibi will therefore be
denied, and Petitioner's actual innocence claim fails.

E.

Petitioner's Sentencing as a Career Qffender
Petitioner argues that his sentence must be corrected because

two "underlying state convictions relied upon by this

court for

I

sentencing

enhancement

are

Petitioner

states

these

that

challenged

ai;f

convictions

unconstitutional [ . J " 44

are

being

attacked in• the Middle Dist.rict of Pennsylvania,
identify the convictions. 45

collaterally

but he does not

As the Government suggests, Petitioner

appears to be renewing a challenge he previously made to using

t~~

convictions referenced in '1['1[ 34-36 of the PSR to a:pply the_ career
offender

guideline. 46

This

claim

was

raised

in

this

court

at

sentencing and could have been pursued in Petitioner's direct appeal.
Petitioner· ha~·

therefbre

~procedurally

defaulted

this

claim.

43

Petitioner's alibi evidence, if credible, would at most show
the start and-•· end date of Petitioner's empioymerit - riot that
Petitioner was working in El Paso on the exact date of the robbery.
Moreover, the employment date range cannot bE! completely acc11rate
given that Petitioner was arrested in this case months before the
supposed end date.
44

Petitione·r' s

§

2255 Motion, Docket Entry No> 191~ p.· 1.

46

Government's MSJ, Docket Entry No. 204, p. 1-2; Affidavit in
Support of Objection to Presentence Investigation Report, Docket
Entry No.' 123, pp . .2.,..3.
-18-

Moreover,

Petitioner

has

not

cited

cases

holding

that

a

prior

conviction may not be considered in guidelines ca~culation merely
because a co],lateral attack is pending' against the prior conv:(ction.
Petiti~ner~~ challenge to his sentence therefore fa{ls.

IV.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2255 Proceedings states
that

a

district

appealability
applicant."

court

when

"must

it

issue

enters

a

or

final

deny
order

a

certificate
adverse

to

of
the

A certificate of appealability will not issue unless

the applicant makes

"a substantial

constitutional right," 28 U. S ..c.

§

showing of the denial of a
2253 (c) (2), which requires an

applicant to demonstrate "that 'reasonable jurists would find the
district court's assessment of the constitutional claims debatable
2565

(2004)

(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).

Under

or wrong. ' "

Tennard v.

Dretke,

124

S.

Ct.

2552,

that controlling.standard this requires apetitio'ner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the p~titibn should bave been resolved in a different manner
or that the issues presented were adequate to deserve encouragement
to proceed further."

Miller-El v. Cockre11, 123 s·. Ct. 1029r 1039

(2003). (internal quotation marks omitted):.·
A· district court may deny a certificate of,. appealability,
sua sponte, without requiring further briefing or argument:
Alexander - v •• Johnson,
curiam) .

211

F. 3d . 8 95,

8 98

( 5th Cir.

See

2000} · (per

The cbl!rt concludes .that reasonable j u"rists could not
-19-

find any of Petitioner's· clai~s meritorious, so a c~rtifi6ate· of
appealability will be denied.
V.

Conclusion and Order

Petitioner's new evidence in support of his El Paso alibi does
not warrant an evidentiary hearing or a new trial.
Motion
Records

for

Evidentiary Hearing

(Docket

Entry

No.

in Support

187)

is

Petitioner's

of Alibi

therefore

Employment

DENIED.

As

to

Petitioner's§ 2255 Motion, Petitioner has failed to establish or
has

procedurally defaulted each of his

conviction and sentence.

claims

challenging his

Therefore, Petitioner's Title 28 U.S.C.

§ 2255 Writ of Habeas Corpus (Docket Entry No. 191) is DENIED, the
United States' Motion for Summary Judgment (Do~ket Entry No. 204)
is

GRANTED,

No.

and

H-24-0121)

the

accompanying

civil

action

will be dismissed wit.h prejudice.

(Civil

Action

Because the

record concl~sively sho~s that Petitioner is not:entitled to any
..

.

.

relief, the court need not grant an evidentiary hearing.
reasonable

Because

jurists could not find any of Petitioner's ass·erted

claims meritorious, a certificate of appealabil'i t~~ is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to th~ partie~.
SIGNED at Houston, Texas,· on this the· 9th· day of May,· 2024.

7
SIM LAKE
SENIOR UNITED .STATES DISTRICT JUDGE

-20-