Opinion
No. 4:01-CR-162-A, (No. 4:04-CV-180-A).
April 9, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of movant, Jason Lamar Owen, ("Owen") to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Owen requests relief from his eighty-month sentence on the grounds that he received ineffective assistance of counsel during sentencing, and that the court abused its discretion by departing upward from the sentencing guidelines to the extent that it did. Owen's second ground has previously been decided by the United States Court of Appeals for the Fifth Circuit, United States v. Owen, No. 02-10245, slip op. at 2-5, (5th Cir. Mar. 7, 2003), and, cannot be the basis for a collateral attack on his sentence. See United States v. Rocha, 109 F.3d 225, 230 (5th Cir. 1997). For the reasons stated herein, the court finds that Owen's motion should be denied.
I. 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 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). Here, Owen 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, Owen has failed to demonstrate that he received such ineffective assistance.
II. Ineffective Assistance of Counsel
Owen pleaded guilty to manufacturing counterfeit United States currency and received an eighty-month sentence, which was affirmed by the court of appeals. Owen, No. 02-10245, at 1. The sentence imposed involved an upward departure from the sentencing guidelines due to Owen's substantial prior criminal activity and a finding that Owen engaged in illegal counterfeiting activity while he was on pretrial release. This finding also caused the court not to adjust Owen's sentence for acceptance of responsibility. In finding that Owen engaged in criminal activity while on pretrial release, the court relied on the Addendum to the Presentence Report ("PSR Addendum"). It included accusations made by Apollo Velazquez ("Velazquez") relating to the criminal conduct in which Owen was found to have been engaged. It also included admissions of Owen that he had instructed others how to manufacture counterfeit United States currency. Now, Owen argues that these accusations and admissions were incorrect, and his counsel was ineffective in allowing, without objection, this "incorrect information to be adopted by this court for sentencing purposes." Owen's Br. at 10.In order to prevail on an ineffective assistance of counsel ground, Owen 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, Owen 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, Owen must show that his counsel's errors were so serious as to render the result of the proceedings 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).
The court finds that Owen has failed to establish the second prong of the Strickland test. The PSR Addendum states that Special Agent Gardner ("Agent Gardner") of the United States Secret Service found Owen with seven computer disks that contained images of counterfeit Federal Reserve Notes scanned onto them and equipment commonly used to manufacture counterfeit currency. A forensic analysis performed on some of the disks showed that some of the money images were scanned onto them approximately one month after Owen's initial arrest — the same time he was on pretrial release. Furthermore, defendant admitted that he gave disks with counterfeit Federal Reserve Notes to others. Even now, Owen concedes that "due to the CD-ROMs and the other evidence found in his car, his pretrial release was justly terminated." Owen's Br. at 10.
The information above is sufficient, without regard to statements allegedly made by Velazquez or Owen's admission that he instructed others how to manufacture counterfeit currency, for the court to find that Owen engaged in criminal counterfeiting activity while on pretrial release and impose the sentence that it did. Therefore, Owen cannot show that, but for his counsel alleged deficiency, he would have received a lesser sentence, and his ineffective assistance claim fails.
III. ORDER
For the reasons discussed herein,
The court ORDERS that Owen's motion to vacate, set aside or correct sentence be, and is hereby, denied.