Opinion
No. 4:00-CR-239 (No. 4:02-CV-173-A)
April 1, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of petitioner, Raymond Serrano, 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. 4:00-CR-239-A, and applicable authorities, finds that the motion should be denied.
I. History
On October 18, 2000, petitioner and thirty-three other defendants were charged in a multi-count indictment with drug trafficking crimes. Petitioner was charged in Count 1 with conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846, and in Count 16 with possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). On December 8, 2000, petitioner pleaded guilty to Count 16 of the indictment. On March 30, 2001, he was sentenced to a term of imprisonment of 30 months, to be followed by a three-year term of supervised release and ordered to pay a $100.00 mandatory special assessment. The judgment was signed on April 9, 2001, and entered on the docket on April 10, 2001. On May 18, 2001, petitioner filed a notice of appeal and a motion for extension of time to file notice of appeal. By order signed May 22, 2001, the court denied the motion for extension of time, noting chat petitioner admitted that he had not even made the decision to appeal until after that deadline had passed; that petitioner failed to show excusable neglect or good cause for his failure to have timely filed his notice of appeal; and that petitioner had pleaded guilty and there was no indication that he had a legitimate ground for appeal. On June 26, 2001, the United States Court of Appeals for the Fifth Circuit dismissed petitioner's appeal, which had been docketed in the Fifth Circuit, for want of prosecution.
II. Grounds of the Motion
As best the court can tell, petitioner urges four grounds in support of his motion, all regarding ineffective assistance of counsel. Petitioner contends that his counsel was ineffective in failing: (1) to ensure that petitioner received credit for acceptance of responsibility; (2) to secure for petitioner a two point reduction under USSG 3B1.2 for his role as a minor participant; (3) to timely pursue an appeal; and (4) to bring to the court's attention petitioner's alcohol addiction.
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)Petitioner first complains that he should have received an adjustment for acceptance of responsibility. However, petitioner's attorney could not have done anything to increase his chance of obtaining the adjustment. The probation officer recommended that no adjustment be made because, although petitioner had admitted he was guilty of the offense to which he pleaded, he denied other relevant conduct for which he was responsible.
Petitioner next urges that he was entitled to an adjustment for having only a minor role in the criminal activity. The record does not support this contention. There is nothing that petitioner's attorney could have done to change this ruling.
Petitioner additionally urges that his counsel was ineffective in failing to timely pursue an appeal. He has not, however, shown that he had any ground upon which to appeal. Any assertion of prejudice is purely speculative.
Finally, petitioner mentions, almost as an afterthought, that his counsel failed to bring to the court's attention petitioner's alcohol addiction so that the court could have recommended that petitioner participate in a drug rehabilitation program. Defendant reported to the probation officer that he had no history of substance abuse. And, the court knows of no reason why petitioner would not be allowed to participate in any substance abuse program if he desired to do so.
V. 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.