Opinion
No. 4:03-CR-262-A, (No. 4:04-CV-623-A).
August 31, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Kenesha Gentry, to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The court, having considered the motion, the record, including the record in No. 4:03-CR-262-A, and applicable authorities, finds that the motion should be summarily denied and that United States of America need not respond. See Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255.
I. History
On September 17, 2003, petitioner was named in a two-count indictment charging her in Count 1 with possession with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and in Count 2 with possession with intent to distribute a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Petitioner was tried by a jury and convicted on both counts. On March 26, 2004, she was sentenced to a term of imprisonment of 97 months, to be followed by a four-year term of supervised release as to Count 1, to be served concurrently with a sentence of 97 months and a two-year term of supervised release as to Count 2 of the indictment, and ordered to pay a $100.00 mandatory special assessment. Petitioner appealed, but her appeal was dismissed for want of prosecution.United States v. Gentry, No. 04-10423, slip op. (5th Cir. May 17, 2004).
II. Ground of the Motion
The sole ground of petitioner's motion is that her sentence is unconstitutional in light of Blakely v. Washington, 124 S. Ct. 2531 (2004).
Petitioner alludes to ineffective assistance of counsel, stating that, because her attorney failed to follow up, her appeal was dismissed for want of prosecution. She does not make any attempt to show, however, that the dismissal of her appeal resulted in any harm to her.
III. Standard of Review
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 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). A defendant can challenge his conviction or sentence after it is presumed final only on issues of constitutional or jurisdictional magnitude, 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);Sunal v. Large, 332 U.S. 174, 178 (1947). Here, petitioner has not made any showing of cause.IV. Discussion
Petitioner argues that her sentence is unconstitutional in light of Blakely, because the court found facts that increased her base offense level. Petitioner was well-aware of the sentence that she faced as a result of her conduct. As petitioner was sentenced within the statutory maximum, there is no Apprendi issue. See Apprendi v. New Jersey, 530 U.S. 466 (2000). Nor is petitioner entitled to any relief underUnited States v. Pineiro, 377 F.3d 464 (5th Cir. 2004).
V. Order
For the reasons discussed herein,
The court ORDERS that the relief sought by the motion in this action be, and is hereby, summarily denied.