Opinion
NO. 4:01-CR-074-A, (NO. 4:02-CV-199-A).
April 23, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Keith Morris, 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-074-A, and applicable authorities, finds that the motion should be denied.
I. History
On April 18, 2001, petitioner was charged in a one-count indictment with knowingly and intentionally possessing and attempting to possess with intent to distribute more than 500 grams of a mixture and substance containing a detectible amount of cocaine hydrochloride, in violation of 21 U.S.C. § 841 (a)(1) and 846. On June 8, 2001, petitioner pleaded guilty. On September 7, 2001, he was sentenced to a term of imprisonment of eighty-eight months, to be followed by a five-year term of supervised release, and ordered to pay a $100 special assessment. Following sentencing, on September 7, 2001, petitioner and his counsel signed a document titled "Notice of Right to Appeal Conviction and Sentence Imposed After Plea of Guilty (or Nolo Contendere)" that specifically advised that any notice of appeal must be filed within ten days after entry of the judgment.
On October 3, 2001, petitioner filed a document that was interpreted to be a notice of appeal. By order signed November 6, 2001, the United States Court of Appeals for the Fifth Circuit remanded the case to the district court for a determination whether the untimely filing of the notice of appeal was due to excusable neglect or good cause. United States v. Morris, No. 01-11308, slip op. at 2 (5th Cir. Nov. 6, 2001). On remand, the court gave petitioner an opportunity to explain in writing the reason for the delay in filing the notice of appeal. Additionally, the court held a hearing at which petitioner, his counsel, and the assistant United States attorney assigned to the case were present. By order signed January 9, 2002, the court determined that petitioner's untimely filing of the notice of appeal was not due to excusable neglect or good cause. The Fifth Circuit thereafter determined that the court did not abuse its discretion in making that determination and dismissed petitioner's appeal. United States v. Morris, No. 01-11308, slip op. (5th Cir. Feb. 6, 2002).
II. Grounds of the Motion
Petitioner raises two grounds in support of his motion. In both grounds, he attacks his counsel, alleging that he failed to receive effective assistance because counsel failed to timely file a notice of appeal and to raise on appeal his § 2D1.1 (b)(1) gun enhancement.
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).For the reasons discussed in the court's January 9, 2002, order, petitioner's contentions regarding ineffective assistance of counsel are wholly without merit. Specifically, petitioner never requested his counsel to file a notice of appeal and she never indicated that she would do so.
V. ORDER
For the reasons discussed herein,
The court ORDERS that petitioner's motion under 28 U.S.C. § 2255 be, and is hereby, denied.