Opinion
Nos. 3:03-CR-0251-P (02), 3:04-CV-1400-P.
August 9, 2004
MEMORANDUM AND ORDER
Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence brought by movant, pursuant to the provisions of 28 U.S.C. § 2255. Movant is a prisoner currently incarcerated in the federal prison system. The respondent is the United States of America (government).
I. BACKGROUND
On July 8, 2003, a grand jury indicted movant of bank robbery in violation of 18 U.S.C. § 2113, (Count 19), and using; carrying; brandishing; and possessing a firearm in violation of 18 U.S.C. § 924(c), (Count 20). On October 22, 2003, movant pled guilty to both counts. In her plea agreement, she waived her right to appeal from her conviction and sentence, and further waived her right to contest her conviction and sentence in any collateral proceeding. Nevertheless, she specifically reserved "the rights to bring (a) a direct appeal of (i) a sentence exceeding the statutory maximum punishment, (ii) an upward departure from the guideline range deemed applicable by the district court, or (iii) an arithmetic error at sentencing, and (b) a claim of ineffective assistance of counsel."
The first eighteen counts were only against movant's co-defendant Robert Thomas Day.
On January 23, 2004, the Court sentenced movant to thirty-seven months imprisonment on Count 19, eighty-four months imprisonment on Count 20, and ordered the sentences to run consecutively. Although movant did not appeal her convictions or sentences, she filed the instant action under 28 U.S.C. § 2255 in June 2004. She claims that (1) the prosecutor failed to disclose favorable evidence; (2) she was denied the effective assistance of counsel because the Court ignored a letter asking for a different attorney; (3) she was denied her right to appeal because her attorney told her she could not appeal; and (4) she was charged with a gun offense although she never possessed a gun, and she did not know that her co-defendant possessed a gun.
II. SUMMARY DISMISSAL
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified." For the reasons that follow, the Court determines that this action should be summarily dismissed.
A. Waiver
Petitioner raises four claims in this action under 28 U.S.C. § 2255. However, the records of the Court show that movant knowingly and voluntarily waived the right to file a motion under 28 U.S.C. § 2255, except for claims of ineffective assistance of counsel. Generally, "an informed and voluntary waiver of post-conviction relief is effective to bar such relief." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam), accord United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). Movant does not challenge the voluntariness of her waiver.
Because Claims 1 and 4 are not ineffective-assistance claims they do not survive movant's informed and voluntary waiver. Furthermore, although Claim 2 is characterized as a claim of ineffective assistance of counsel, movant actually complains about an alleged failure of the Court to consider a letter in which she asked for different counsel. Such claim is thus not an ineffective-assistance claim that survives her waiver. In addition, movant does not characterize Claim 3 as one of ineffective assistance. To the extent it is not construed as a claim of ineffective assistance of counsel, it also does not survive movant's waiver.
Because movant has entered an informed and voluntary waiver with respect to filing a motion to vacate under 28 U.S.C. § 2255 she has waived the right to raise any claims in this action other than those for ineffective assistance of counsel.
B. Ineffective Assistance of Counsel
Claims 2 and 3 survive movant's waiver to the extent they raise claims of ineffective assistance of counsel. To successfully state a claim of ineffective assistance of counsel, movant must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test applies when one alleges that he or she was denied effective assistance of counsel in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). In the context of a guilty plea, the defendant must prove not only that counsel actually erred, but also that he or she "would not have pled guilty but for the error." See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).
A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. See 466 U.S. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000). To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a movant must show that "there is 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." Id. at 694. When a prisoner challenges his plea based on ineffective assistance of counsel, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 58. To satisfy this requirement in the plea context, the prisoner "must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Id. To show prejudice, when an attorney has "failed to adequately brief an issue on direct appeal, [movant] must show initially that the appeal would have had, with reasonable probability, a different outcome if the attorney adequately addressed the issue." United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001). Movant "must then demonstrate that the attorney's deficient performance led to a fundamentally unfair and unreliable result." Id. Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Movants must "affirmatively prove prejudice." Id. at 693. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain relief under § 2255. United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989); United States v. Daniels, 12 F. Supp. 2d 568, 575 (N.D. Tex. 1998).
In this case, movant has shown no deficiency of counsel. In Claim 2, she complains that the Court ignored her letter that asked for a different attorney. She does not show how counsel was deficient with respect to this letter, or with respect to any aspect of her case other than the allegation in Claim 3. In Claim 3, she claims that she was denied her right to appeal because her attorney told her she could not appeal. However, pursuant to her informed and voluntary waiver, she had no right to appeal except for three specific errors identified in her plea agreement. Movant does not allege any of these three errors. Nor does she argue or suggest that she wanted to assert any such error on appeal. It does not appear that counsel was deficient in telling movant that she could not appeal. Movant has not overcome the strong presumption that her attorney's conduct falls within the wide range of reasonable assistance.
Movant also fails to show that she was prejudiced by the alleged deficiencies of counsel. She has not shown a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. She has not shown that, but for the deficiencies of counsel, she would not have pleaded guilty and would have insisted on going to trial. She has not shown that she could have raised any issue on appeal that would have created a reasonable probability of some positive change to her sentence had she presented the claim on appeal.
For all of these reasons, movant's claims of ineffective assistance of counsel entitle her to no relief under 28 U.S.C. § 2255.
III. EVIDENTIARY HEARING
Upon review of the motion to vacate and the files and records of this case, an evidentiary hearing appears unnecessary. No evidentiary hearing is required, when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. In this instance, the matters reviewed by the Court conclusively show that movant is entitled to no relief.
IV. CONCLUSION
For the foregoing reasons, the Court summarily DENIES movant's Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255.
IT IS SO ORDERED.