Opinion
CIVIL ACTION NO. 3:02-CV-1831-G, CRIMINAL ACTION NO. 3:99-CR-112(02)-G.
June 27, 2003.
MEMORANDUM ORDER
Before the court is the motion of the petitioner Shenard Tyvon Wells ("Wells") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. After considering the motion, the response of the United States of America (styled Motion to Dismiss, or Alternatively, Deny Petitioner's 28 U.S.C. § 2255 Motion), and the record, the court concludes that the § 2255 motion should be denied. See Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("If 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.").
I. BACKGROUND
On March 24, 1999, a grand jury charged Wells in a six-count indictment with violations of the federal controlled substance laws. Wells was arrested on April 7, 1999 and brought before United States Magistrate Judge Jane J. Boyle that same day for an initial appearance. He was ordered detained pending trial of his case. At his arraignment on April 13, Wells pleaded not guilty but on May 25, 1999 changed his plea, pursuant to a plea agreement with the government, to guilty on Count Two. In that plea agreement, he agreed to cooperate with law enforcement agents.
Before Wells was sentenced, the United States moved on July 19, 1999 to revoke the plea agreement on grounds of Wells' failure to cooperate. Following a hearing on the motion, the court granted the motion to revoke the plea agreement and offered Wells the opportunity to withdraw his plea. Thereafter, Wells decided to withdraw his guilty plea and proceed to trial.
On August 11, 1999, the grand jury returned a superseding indictment in which Wells was charged not only with the original drug trafficking crimes but also with additional offenses of attempted murder of a confidential informant and obstruction of justice. On October 15, 1999, the United States filed a written notice that Wells' sentence upon conviction was subject to enhancement by virtue of his prior felony drug conviction.
Wells was arraigned on the superseding indictment shortly before trial on October 18, 1999. He entered a plea of guilty to Count Two of the superseding indictment (without a plea agreement, however) and not guilty to Counts One, Three, and Four. The case proceeded to trial. On October 29, 1999, the jury convicted Wells on Count One but acquitted him on Counts Three and Four.
Wells was sentenced on January 25, 2000, as a result of his convictions on Counts One and Two, to three-hundred sixty months imprisonment, concurrently on each count, and a special assessment of $100 per count. After a timely appeal, his sentence was affirmed. United States v. Wells, No. 00-10134, slip. op (5th Cir. August 17, 2001).
II. GROUNDS OF THE MOTION
Wells asserts five grounds in support of his motion: (1) the drug quantity used to determine his sentence was, under Apprendi v. New Jersey, 530 U.S. 466 (2000), an element of the offense for the jury to decide; (2) he received ineffective assistance from trial counsel; (3) his plea agreement was breached by the government; (4) the trial court erred in excusing a juror before a verdict was reached; and (5) his right to due process was violated when defense witness Anthony Dunkins was allowed to invoke his 5th Amendment right not to testify.
III. STANDARD OF REVIEW
After conviction and exhaustion 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 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. 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).
IV. ANALYSIS
Wells is not entitled to relief on this motion for the reasons stated by the United States in its response. There is a more fundamental reason, however, that Wells cannot prevail. He was convicted of Count Two, on his plea of guilty, for which he received a 360-month custody sentence, to run concurrently with the 360-month sentence on Count One. The Supreme Court has "strictly limited the circumstances under which a guilty plea may be attacked on collateral review." Bousley v. United States, 523 U.S. 614, 621 (1998). "It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508 (1984) (footnote omitted). "And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley, 523 U.S. at 621. Wells did not challenge the voluntariness and intelligence of his guilty plea on his direct appeal, see United States v. Wells, No. 0010134, slip op. at 2, 21-26 (5th Cir. August 17, 2001), and thus may not do so on this § 2255 motion. Because the custody sentence Wells received on Count One runs concurrently with his custody sentence on Count Two, he has identified "no specific detriment" to him from the sentence on Count One, see Thomas v. United States, 431 F.2d 940, 941 (5th Cir. 1970), even if the court should assume arguendo that his grounds for relief under § 2255 are valid as to that count. See also Streator v. United States, 431 F.2d 567, 567-68 (5th Cir. 1970) (on a § 2255 motion challenging a 15-year custody sentence for Dyer Act violations, the court denied relief under the "concurrent sentence doctrine" where the petitioner did not challenge the concurrent 15-year sentences he received on the same date for pleading guilty to counterfeiting violations)
If this were a direct appeal, the concurrent sentence doctrine would not apply because special assessments, as required by 18 U.S.C. § 3013(a), were imposed on Wells on Counts One and Two. See Ray v. United States, 481 U.S. 736, 736-37 (1987); United States v. Soape, 169 F.3d 257, 266 n. 4 (5th Cir.), cert. denied, 527 U.S. 1011 (1999). Our circuit has held, however, that § 2255 does not afford relief for monetary aspects of a sentence, such as fines, restitution, or special assessments. See United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999) (restitution); United States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994) (fines). Consequently, there is no reason the court cannot apply the concurrent sentence doctrine here.