Opinion
Nos. 4:02-CR-174-A, 4:05-CV-171-A.
March 11, 2005
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of Brian Nolley 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. 4:02-CR-174-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 Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255.
I. History
On September 10, 2002, petitioner and twenty-two co-defendants were named in a forty-count indictment. Petitioner was charged in count 1 with conspiracy to distribute and possess cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), in count 7 with knowingly possessing with intent to distribute approximately 68.74 grams of a mixture and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and counts 9-10 with using a communications facility to further the drug conspiracy, in violation of 21 U.S.C. § 843(b). On January 7, 2003, petitioner pleaded guilty to count 1 of the indictment. On April 11, 2003, he was sentenced to serve a term of imprisonment of 168 months, to be followed by a five-year term of supervised release, and ordered to pay a mandatory special assessment of $100.00. Counts 7, 9, and 10 of the indictment were dismissed on motion of the government. Petitioner appealed and the United States Court of Appeals for the Fifth Circuit affirmed the judgment. United States v. Nolley, No. 03-10382, slip op. (5th Cir. Dec. 9, 2003).
II. Grounds of the Motion
Petitioner urges three grounds in support of his motion. First, he was denied effective assistance of counsel. Second, he was denied due process of law. And, third, he was denied his Sixth Amendment right to jury trial.
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 discussed infra, petitioner has failed to demonstrate that he received such ineffective assistance.
IV. Grounds Barred
The second and third grounds of the motion are procedurally barred. To the extent that the issues were raised on direct appeal, they cannot be pursued here. Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979). To the extent that they should have been raised, petitioner has not shown cause and prejudice as required. Shaid, 937 F.2d at 232. They have no merit in any event.The section of petitioner's brief devoted to the second and third grounds appears to argue that his sentence is unconstitutional in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), because the court found facts that were not alleged in the indictment. Petitioner was well aware of the sentence he faced as a result of his conduct. Both the plea agreement and factual resume informed him that he faced a term of imprisonment of ten years up to life. Jan. 7, 2003, Tr. at 27; Tr. at 112. As petitioner was sentenced within the statutory maximum, there is no Apprendi issue. See Apprendi v. New Jersey, 530 U.S. 466 (2000). Nor is petitioner entitled to any relief under Blakely or United States v. Booker, 125 S. Ct. 738 (2005). See U.S. v. Mares, 2005 WL 503715 (5th Cir. 2005).
V. 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 complains in his first ground that his counsel gave him faulty advice. Specifically, he says that his counsel assured him that 68.74 grams would be the amount of drugs used for sentencing. Pet'r Br. at 5. Petitioner appears to contend that his plea was not knowing and voluntary, because he relied upon that advice. To the extent petitioner's allegations are conclusory, they are insufficient to support a claim of ineffective assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Moreover, 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. 392-93. The record shows that, whatever petitioner's attorney may have told him, petitioner was well-aware of the severity of the sentence he faced and knowingly and voluntarily entered his plea of guilty. Jan. 7, 2003, Tr. at 31-33.
Petitioner never really says what his complaint is. Rather, he quotes from cases stating general propositions about effective assistance. Petitioner does not state any facts to support a contention that he would not have pleaded guilty but for his counsel's advice.
VI. 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.