Opinion
NO. 4:01-CR-130-A, (NO. 4:03-CV-1386-A)
January 21, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Baldemar Gonzalez, to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The court, having considered the motion, the response of United States of America, the record, including the record in No. 4:01-CR-130-A, and applicable authorities, finds that the motion should be denied.
I. History
On July 12, 2001, petitioner was named in a two-count indictment charging him and a co-defendant in Count 1 with conspiracy to possess with the intent to distribute a mixture and substance containing a detectable amount of cocaine, in an amount equal to or greater than 500 grams, in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1) (B), and in Count 2 with possession with intent to distribute a mixture and substance containing a detectable amount of cocaine in an amount equal to or greater than 500 grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On September 14, 2001, petitioner pleaded guilty to Count 2. On December 14, 2001, he was sentenced to a term of imprisonment of 110 months to be followed by a five-year term of supervised release and ordered to pay a $100 mandatory special assessment. Count 1 of the indictment was dismissed on the motion of the government. Petitioner appealed and the United States Court of Appeals for the Fifth Circuit affirmed his conviction and sentence. United States v. Gonzalez, No. 02-10007, slip op. (5th Cir. Dec. 23, 2002).
II. Grounds of the Motion
Petitioner asserts a laundry list of complaints that he received 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.
Although constitutionally ineffective assistance of counsel is "cause," McCleskey v. Zant, 499 U.S. 467, 494 (1991), as discussedinfra, petitioner has failed to demonstrate that he received such ineffective assistance.
IV. 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). As noted, petitioner's motion contains only a laundry list of claims relative to ineffective assistance of counsel. He simply makes a statement and cites to a case. For example, he alleges "Counsel refused to investigate deminished [sic] capacity defense." Mem. of Facts in Supp. of Pet'r's Mot. at ¶ 5. He does not recite any facts that would support a claim that he suffered from diminished capacity and, in fact, the record reflects that he did not. Resp't's App. at 41-42. Petitioner's conclusory allegations are insufficient to support his ineffective assistance of counsel claims. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Petitioner has not shown that he is entitled to any relief.V. 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.