Opinion
No. 4:04-CV-547-A.
July 28, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Rafael Dominguez, 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. 4:00-CR-239-A, and applicable authorities, finds that there is no need for a response by United States of America and that the motion should be denied.
The motion is accompanied by a document titled "Leave to File a Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to Federal Criminal Procedure and Rules Title 28 U.S.C., 2255." The document is not a motion, as the clerk has docketed it, but rather the brief in support of the motion under § 2255. If the document were to be interpreted as a motion, it would be moot, as petitioner did not need leave to file his motion under § 2255.
I. History
On October 18, 2000, petitioner and thirty-three co-defendants were named in a sixteen-count indictment. Petitioner was charged in Count 1 with conspiring to distribute and possess with intent to distribute more than 100 kilograms of a mixture and substance containing a detectable amount of marijuana, in violation of 21 U.S.C. § 846, and in Count 4 with knowingly possessing with intent to distribute approximately 102 pounds of a mixture and substance containing a detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1). On April 12, 2002, petitioner appeared for rearraignment and pleaded guilty to Count 1 of the indictment. On July 19, 2002, he was sentenced to a term of imprisonment of 136 months, to be followed by a five-year term of supervised release, and ordered to pay a $100.00 special assessment. Count 4 of the indictment was dismissed on motion of the government. Petitioner appealed and the United States Court of Appeals for the Fifth Circuit dismissed the appeal as frivolous. United States v. Dominguez, No. 02-10904, slip op. (5th Cir. Apr. 23, 2003).
II. Grounds of the Motion
It is difficult to discern how many grounds petitioner is raising, since he did not properly fill out the form devised for asserting a motion under § 2255. The brief in support of the motion contains four sections, discussing "defective indictment," "erroneous drug weight calculations," "leadership enhancement," and "ineffective assistance of counsel."
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. Defective Indictment
Under the heading "Defective Indictment," petitioner contends that he was not placed on notice of the charges against him and that he did not knowingly and voluntarily enter into his guilty plea. At the plea hearing, the court satisfied itself that petitioner's plea of guilty was knowing and voluntary. FED. R. CRIM. P. 11; 4/12/02 Tr. at 30. Petitioner was specifically informed of the penalties he faced as a result of his guilty plea to Count 1 and stated that he understood he would be subject to those penalties. Id. at 18-19. Petitioner cannot now raise claims relating to alleged deprivation of constitutional rights that occurred prior to entry of his plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Even if petitioner had not pleaded guilty, the claim he now urges could and should have been raised on appeal and cannot be presented here. Davis, 417 U.S. at 345;Sunal, 332 U.S. at 178.V. Drug Weight Calculations
Petitioner alleges that the drug weight calculations used against him were erroneous. This ground could and should have been raised on appeal and cannot be pursued here. Davis, 417 U.S. at 345; Sunal, 332 U.S. at 178. The ground is frivolous in any event. Petitioner stipulated that he conspired with Oscar Viggers, Carlos Reyes, and others to possess with intent to distribute more than 100 kilograms of a mixture and substance containing a detectable amount of marijuana and that during the course of the conspiracy more than 100 kilograms of marijuana were delivered to petitioner for distribution. 4/12/02 Tr. at 28; Tr. 649-50.
VI. Leadership Enhancement
Petitioner next alleges that he should not have been subject to a leadership enhancement under USSG § 3B1.1. The issue was not raised on direct appeal and cannot be raised here. Davis, 417 U.S. at 345. Moreover, the district court's technical application of the sentencing guidelines does not give rise to a constitutional issue cognizable under a motion filed pursuant to 28 U.S.C. § 2255. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Finally, the record supports the leadership enhancement.
VII. Ineffective Assistance of Counsel
In order to prevail on an ineffective assistance of counsel ground, petitioner must show (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 697. To establish the first prong, petitioner must overcome a strong presumption that his counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. It is not enough to show that some, or even most, defense lawyers would have handled the case differently. Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.), cert. denied, 493 U.S. 831 (1989). For the second prong, petitioner must show that his counsel's errors were so serious as to "deprive him of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. If the petitioner cannot show that the ineffectiveness of counsel deprived him of a substantive or procedural right to which the law entitles him, he must show that the result of the proceeding was fundamentally unfair or unreliable. Williams v. Taylor, 529 U.S. 362, 392-93 (2000). Here, the record is clearly adequate to fairly dispose of the claim of ineffective assistance. Hence, further inquiry is unnecessary. Baldwin v. Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984).
Petitioner does not specifically identify any manner in which his counsel was constitutionally ineffective. Conclusory allegations are insufficient to support ineffective assistance of counsel claims. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Petitioner urges that his counsel was ineffective because he filed an Anders brief on appeal. Counsel is not ineffective, however, for failing to pursue frivolous claims on appeal. See Jones v. Barnes, 463 U.S. 745 (1983); Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir. 1991). None of the substantive grounds raised here has merit; hence, petitioner's counsel cannot have been ineffective for failing to raise them.
VIII. Order
For the reasons discussed herein,
The court ORDERS that petitioner's motion to vacate, set aside or correct sentence be, and is hereby, denied.
SIGNED.