Opinion
Nos. 4:01-CR-187-A, 4:05-CV-015-A.
January 18, 2005
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Curtis Lee Green, 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. 4:01-CR-187-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 November 14, 2001, petitioner and a co-defendant were named in a four-count indictment. Petitioner was charged in Counts One and Two with stealing firearms from a firearms licensee, in violation of 18 U.S.C. § 922(u), and in Counts Three and Four with being a felon in possession of certain firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Petitioner pleaded guilty to Count Three of the indictment and the remaining counts were dismissed on the government's motion. Petitioner was originally sentenced to a term of imprisonment of 365 months, to be followed by a five-year term of supervised release, and ordered to pay restitution in the amount of $39,896.00 and a mandatory special assessment of $100.00. Petitioner appealed and the United States Court of Appeals for the Fifth Circuit remanded the case for re-sentencing. United States v. Green, No. 02-10528, slip op. (5th Cir. Jan. 23, 2003). On April 25, 2003, petitioner was re-sentenced to a term of imprisonment of 327 months, to be followed by a five-year term of supervised release, and ordered to pay restitution in the amount of $39,896.00 and a $100.00 mandatory special assessment. Petitioner again appealed, but his appeal was dismissed as frivolous.
II. Grounds of the Motion
Petitioner contends that he received ineffective assistance of counsel and that his conviction was obtained by a plea of guilty that was unlawfully induced because of the ineffectiveness of his 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. 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 alleges that he and his counsel "were advised the maximum penalty was 10 years in prison," but his attorney had him sign a plea agreement stipulating that he agreed to a minimum sentence of fifteen years. Mot. at 5. Petitioner's conclusory allegations as to ineffectiveness are insufficient to raise a constitutional issue. Czere v. Butler, 833 F.2d 59, 64 (5th Cir. 1987). And, in any event, the record reflects that petitioner was well aware of the potential sentence he faced. The court satisfied itself that petitioner's plea was knowing and voluntary before accepting the plea.
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, summarily denied.