Duckett v. USA

Filing 19

MEMORANDUM OPINION dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 5:11cr1070 (Defendant No. 4). (Signed by Judge George P. Kazen) Parties notified. (dmorales, 5) (Additional attachment(s) added on 2/5/2014: # 1 Proof of Mailing) (dmorales, 5).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
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§
§
§
§
§
§

UNITED STATES OF AMERICA
vs.
TERRIL MONTEIZ DUCKETT

Civ. No. 5:13-CV-51
Crim. No. 5:11-CR-1070

MEMORANDUM OPINION
Pending before the Court is Defendant’s §2255 motion, filed
March 22, 2013.
filed

his

(Crim. Dkt. 169.)

response

on

August

5,

Defendant’s trial attorney
2013

(Dkt.

176),

and

the

Government filed its response on December 31, 2013 (Dkt. 194).
The Court has reviewed the motion, Attorney Javier Montemayor’s
Verified Response (Crim. Dkt. 176), the Government’s Response
(Crim. Dkt. 194), the Pre-Sentence Report (“PSR”) (Crim. Dkt.
125), and other relevant documents in the record.
concludes

that

this

§2255

motion

is

meritless

The Court

and

will

be

dismissed.
Defendant pled guilty on December 28, 2011, in front of
Magistrate Judge J. Scott Hacker to conspiracy to possess with
intent to distribute 5 kilograms or more of cocaine.
Dkt. 109).

No plea agreement was entered.

(Crim.

On September 7,

2012, this Court sentenced Defendant to 240 months’ confinement.
(Crim. Dkt. 161.)

Defendant did not appeal.

The pending motion claims four grounds for relief:

(1)

that Defendant’s counsel was ineffective for failing to preserve
the right to an appeal by not filing a notice of direct appeal;
(2) that Defendant was merely a minor player in the offense, yet
received

more

time

than

any

of

his

co-defendants;

(3)

that

Defendant’s counsel was ineffective for failing to object to the
quantity

of

drugs

attributed

to

Defendant;

and

(4)

that

Defendant should be released because he was pulled into the
conspiracy due to entrapment.
Section

2255

(Crim. Dkt. 169 at pp. 4-9.)

provides

relief

for

a

defendant

who

can

demonstrate that:

“(1) his sentence was imposed in violation of

the

or

Constitution

sentencing
sentence,

court
(3)

the

laws

was

of

the

without

sentence

United

jurisdiction

was

in

excess

States,
to
of

(2)

the

impose

the

the

maximum

authorized by law, or (4) the sentence is otherwise subject to
collateral attack.”
(5th

Cir.

1995).

United States v. Seyfert, 67 F.3d. 544, 546
Section

2255

motions

“may

raise

only

constitutional errors and other injuries that could not have
been raised on direct appeal that will result in a miscarriage
of justice if left unaddressed.”

United States v. Williamson,

183 F.3d 458, 462 (5th Cir. 1999).
To prevail under an ineffective assistance of counsel claim
in a §2255 motion, a Defendant must satisfy a two-part test.
First,
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Defendant

must

demonstrate

deficient

performance.

Strickland v. Washington, 466 U.S. 668, 697 (1984).
performance

is

representation

fell

reasonableness.”
demonstrate

demonstrated
below

Id.

resulting

by

at

an
688.

prejudice.

showing

that

objective
Second,
Id.

at

Deficient
“counsel’s

standard
Defendant

697.

of
must

Prejudice

requires that the Defendant “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Id. at

694.
First,
assistance

Defendant
of

claims

counsel,

because

file a notice of appeal.

that

he

Attorney

received
Montemayor

(Crim. Dkt. 169 at p. 4.)

ineffective
failed

to

A failure

to file a notice of appeal is “professionally unreasonable” when
Defendant requests that attorney file a notice of appeal.
v. Flores-Ortega, 120 S.Ct. 1029, 1031 (2000).

Roe

If a defendant

does not specifically express his wishes regarding an appeal,
the preliminary inquiry is “whether counsel in fact consulted
with the defendant about an appeal.”

Id. at 1035.

For this

question, “consult” means to advise the defendant “about the
advantages and disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant’s wishes.”

Id. at

1040. If counsel has consulted with the defendant, then the
counsel

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is

professionally

unreasonable

“only

by

failing

to

follow the defendant’s express instructions with respect to an
appeal.”

Id. at 1031.

With respect to the alleged failure to appeal, Attorney
Montemayor’s
opportunity

Response
to

do

Defendant

after

rights.

(Crim.

indicates

so.

Montemayor

sentencing
Dkt.

that

176

and

avers

advised

at

p.

Defendant

2.)

him

had

that

he

of

his

Defendant

met

every
with

appellate
stated

Montemayor that he understood an appeal would be frivolous.

to
Id.

After this conversation, Attorney Montemayor advised Defendant
that he would defer presenting Defendant with a notice of nonappeal in the event Defendant changed his mind about filing an
appeal.

Id.

According to Counsel, Defendant never thereafter

communicated with counsel about any desire to appeal.
Defendant’s

motion

does

not

Montemayor’s version of these events.

controvert

Id.
Attorney

In particular, Defendant

does not claim that he instructed Counsel to file a notice of
appeal.

Neither does Defendant contend that Counsel failed to

consult him about the appeal.

Defendant’s claim is limited to

asserting that Counsel was ineffective for failing to file an
appeal.

The uncontroverted evidence on record is that Counsel

made a reasonable attempt to discover Defendant’s wishes about
appeal, and that Defendant never requested Counsel to file a
notice of appeal.

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Accordingly, the first ground is meritless.

Second,
inappropriate

Defendant
because

alleges
of

that

racial

his

bias

sentence

and

was

disparity

in

sentencing, asserting that he was a minor player but received
more time than other co-Defendants.

(Crim. Dkt. 169 at p. 6.)

This

frivolous.

allegation

is

transparently

Defendant’s

sentence had nothing to do with his race and was not affected by
his role in the offense.

The simple fact is that the Defendant

pled guilty to an offense involving more than five kilograms of
cocaine.
years’

That crime carried a minimum mandatory sentence of ten
confinement.

If

the

Government

filed

a

formal

information that the Defendant had a prior narcotics conviction,
under

21

U.S.C.

§

51,

the

minimum

increase to twenty years’ confinement.

mandatory

sentence

would

If the Government filed

information of two such prior convictions, the mandatory minimum
would increase to life in prison.

In fact, the Government did

file information of two prior narcotics convictions.
Dkts. 78 & 83.)

(Crim.

Thus, when Defendant’s presentence report was

prepared, the Probation Office called for a sentence of life in
prison.

Fortunately for this Defendant, the Government on March

23, 2012 withdrew the enhancement filed at Docket Number 82.
(Crim. Dkt. 134.)
life

in

prison.

Therefore, Defendant was spared a sentence of
With

one

enhancement

instead

of

two,

the

Defendant’s minimum sentence became twenty years’ confinement
instead of life in prison.
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That is precisely the sentence which

Defendant received.

As stated above, that sentence had nothing

to do with his race or role in the offense.

For that matter, it

had nothing to do with the sentencing guidelines.
sentence demanded by a federal statute.

It was a

This statute cannot be

affected by a §2255 motion.
Third,
assistance

Defendant
of

asserts
because

counsel

that

he

Attorney

received

ineffective

Montemayor

failed

object to the quantity of drugs attributed to Defendant.
Dkt. 169 at p. 8.)

to

(Crim.

During the Defendant’s re-arraignment, he

agreed “that he was involved in a conspiracy to possess with
intent to distribute in excess of 5 kilograms.”

(Crim. Dkt. 189

at p. 22.) The PSR indicates the Government had substantial
evidence about the quantity of drugs involved.
at pp. 10-19.)
drugs

would

stated,

§2255.

Therefore, objecting to the correct quantity of

have

failure

ineffective

(Crim. Dkt. 125

been
to

frivolous.
raise

assistance

and

a
is

As

the

Fifth

frivolous
not

Circuit

objection

grounds

for

is

relief

has
not

under

Clark v. Collins, 19 F.3d, 959, 966 (5th Cir. 1994).

Therefore, this third ground for §2255 relief is meritless.
Finally,
relief,

Defendant

because

the

asserts

government

that

he

entrapped

should
him,

receive
and

§2255

that

his

involvement was limited to giving the undercover agent $5,000 to
pay the carrier to deliver them, not to buy drugs.
169 at p. 8.)
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(Crim. Dkt.

However, entrapment is a defense on the merits

that is waived by a guilty plea.

United States v. Sarmiento,

786 F.2d 665, 668 (5th Cir. 1986).
be raised at trial.
under §2255.
1964).
for

the

A claim of entrapment must

It cannot be raised as a collateral attack

Moore v. United States, 334 F.2d 25, 27 (5th Cir.

Further, Defendant’s proposed distinction between paying
delivery

Defendant’s

fourth

of

drugs

and

ground

for

buying
relief

drugs
is

is

irrelevant.

therefore

also

meritless.
For the foregoing reasons, Defendant’s §2255 motion will be
DISMISSED.
DONE at Laredo, Texas, this 4th day of February, 2014.

___________________________________
George P. Kazen
Senior United States District Judge

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