Opinion
Nos. 4:01-CR-129-A, 4:04-CV-429-A.
July 26, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Troyce Arva Ruby, III, 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-129-A, and applicable authorities, finds that the motion should be denied.
I. History
On September 12, 2001, petitioner was named in a four-count superseding indictment charging him in Count 1 with possessing with intent to distribute a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (C), in Count 2 with possessing a firearm in furtherance of the offenses charged in Count 1, in violation of 18 U.S.C. § 924(c), in Count 3 with possession of a firearm by a person who had been convicted of a felony, in violation of 18 U.S.C. §§ 922(g) (1) and 924(a) (2), and in Count 4 with possessing a firearm made from a shotgun having a barrel of less than eighteen inches in length that was not registered to him, in violation of 26 U.S.C. §§ 5861(d) and 5871.
On September 14, 2001, petitioner pleaded guilty to Counts 1 and 2 of the superseding indictment. On December 21, 2001, he was sentenced to a term of imprisonment of 170 months on Count 1, to be followed by a mandatory consecutive sentence of 60 months on Count 2, to be followed by three-year terms of supervised release as to each of Counts 1 and 2, to run concurrently, and ordered to pay a $200.00 special assessment. Counts 3 and 4 of the superseding indictment were dismissed on the motion of the government. Petitioner appealed and the United States Court of Appeals for the Fifth Circuit affirmed his sentence. United States v. Ruby, No. 02-10011, slip op. (5th Cir. Oct. 29, 2002). On June 16, 2003, the United States Supreme Court denied his petition for writ of certiorari.
II. Grounds of the Motion
Petitioner asserts three grounds in support of his motion. First, he received ineffective assistance of counsel. Second, his conviction was obtained by a plea that was unlawfully induced and not voluntarily made. And, third, his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
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 his trial counsel was ineffective for several different reasons. First, he complains that his attorney did not know that petitioner had two prior felony convictions. He relies on a copy of a printout allegedly showing his "Computerized Criminal History" describing the level of one of his earlier escape charges as a "MSDMNR A." Petitioner himself would certainly have known of his prior felony convictions and should not be rewarded for having failed to discuss those matters with his counsel. He further alleges that his counsel advised him that he would not receive more than a ten-year sentence if he pleaded guilty. Any claim that he did not know or was misled about the penalty he faced is belied by the record. The court specifically advised petitioner at rearraignment that he faced a term of imprisonment of twenty years on Count 1 to be followed by a five-year term of imprisonment on Count 2. Sept. 14, 2001, Tr. at 26-27. Petitioner acknowledged that he understood the penalties he faced. Id. Petitioner next makes a vague allegation regarding waiver of a suppression hearing. He does not explain how he was harmed by waiver of the hearing. The third and fourth allegations regarding ineffective assistance are just as vague. Conclusory allegations are insufficient to support ineffective assistance of counsel claims. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Petitioner's final complaint under this ground is that his attorney advised him that he would not be allowed to withdraw his guilty plea. That is the same advice the court gave petitioner at his rearraignment hearing. Sept. 14, 2001, Tr. at 21.
V. Voluntariness of the Plea
In his second ground, petitioner contends that his plea was not knowing and voluntary. At the plea hearing, the court satisfied itself that petitioner's plea of guilty was knowing and voluntary. FED. R. CRIM. P. 11; Sept. 14, 2001, Tr. at 25. And, petitioner was specifically informed that he might receive a life sentence and that if he received a sentence more severe than he expected he would not have the right to withdraw his plea. Sept. 14, 2001, Tr. at 28-29.
VI. Search and Seizure
In his third ground, petitioner contends that his conviction was obtained by the use of evidence gained pursuant to an unconstitutional search and seizure. Contrary to his assertion, petitioner's conviction was obtained through his knowing and voluntary plea of guilty. Thus, he cannot now raise claims relating to alleged deprivation of constitutional rights that occurred prior to entry of his plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Even if petitioner had not pleaded guilty, the claim he now urges could and should have been raised on appeal and cannot be presented here. Davis, 417 U.S. at 345;Sunal, 332 U.S. at 178.
VII. Order
For the reasons discussed herein,
The court ORDERS that petitioner's motion to vacate, set aside or correct sentence be, and is hereby, denied.
FINAL JUDGMENT
In accordance with the court's memorandum opinion and order of even date herewith,
The court ORDERS, ADJUDGES, and DECREES that the motion of Troyce Arva Ruby, III, pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence be, and is hereby, denied.