Opinion
NO. 4:01-CR-164-A, NO. 4:03-CV-1455-A
February 3, 2004
MEMORANDUM OPINION AND ORDER and ORDER
Came on for consideration the motion of petitioner, Bennie Dean Henderson, 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-164-A, and applicable authorities, finds that the motion should be denied.
I. History
On December 4, 2001, petitioner and three co-defendants were named in a thirty-count superseding indictment. Petitioner was charged in Count 1 with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371 and 1341, and in Counts 2 through 30 with mail fraud, in violation of 18 U.S.C. § 1341. On December 7, 2001, petitioner pleaded guilty to Count 1 of the superseding indictment. On March 8, 2002, he was entered to a FSterm of imprisonment of 57 months to be followed by a three-year term of supervised release and ordered to pay restitution in the amount of $407,344.00 and a $100.00 mandatory special assessment. The remaining counts of the indictment were dismissed on motion of the government. Petitioner appealed and the United States Court of Appeals for the Fifth Circuit affirmed his conviction. United States v. Henderson, No. 02-10339, slip op. (5th Cir. Dec. 30, 2002).
II. Grounds of the Motion
Petitioner sets forth four grounds in support of his motion. Two of them concern alleged ineffective assistance of counsel. Petitioner urges that the court erred by sentencing him outside the proscribed sentencing range provided by statute; that the court erred by not granting him a three-point reduction for acceptance of responsibility; and, that he received ineffective assistance of counsel at sentencing and on appeal.
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. Alleged Error in Sentencing
Petitioner maintains that the court erred in sentencing him to a term of imprisonment of 57 months plus a three-year term of supervised release, because he was subject to a five-year statutory maximum sentence. This ground is procedurally barred, as it was not raised on direct appeal. See Shaid, 937 F.2d at 232. And, in any event, the ground is without merit. Petitioner was clearly notified in his plea agreement and in open court that he faced a term of imprisonment of five years plus a three-year term of supervised release and that, if he violated any condition of the supervised release, he could be imprisoned for the entire term of supervised release. Dec. 7, 2001, Tr. at 46. Petitioner stated in open court that he understood the terms of the plea agreement and the penalty to which he could be subjected and that he had knowingly and voluntarily entered into the plea agreement. Id. at 48-50. Congress authorized two separate punishments, that is, a primary term of imprisonment plus a term of supervised release. See United States v. Celestine, 905 F.2d 59 (5th Cir. 1990). Petitioner's constitutional rights were not violated by the imposition of a sentence at the statutory maximum plus a term of supervised release.Id.V. The Guidelines Claim
Petitioner's claim that the court erred in failing to grant him a reduction for acceptance of responsibility is not cognizable on collateral review. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). Moreover, the ground is frivolous. Petitioner not only violated his pretrial release conditions, he also attempted to change his plea after having stated in open court that he was guilty as charged. Mar. 8, 2002, Tr. at 13 21.VI. 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 argues that his counsel rendered ineffective assistance by failing to object that petitioner was being sentenced outside the proscribed sentencing range and that he was not being granted a three-point reduction for acceptance of responsibility. For the reasons previously discussed, neither of his contentions has merit. An attorney is not required to make futile motions or objections. Coch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Petitioner has not shown that he was deprived of any substantive or procedural right, much less that the result of the proceeding was fundamentally unfair or unreliable.Williams, 529 U.S. at 392-93.
VII. ORDER
For the reasons discussed herein,
The court ORDERS that petitioner's motion to vacate, set aside or corrects sentence be, and is hereby, denied.