Opinion
Nos. 3-97-CR-056-R(01), 3-00-CV-068-R
April 25, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and an order of reference from the United States District Court for the Northern District of Texas. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
PROCEDURAL BACKGROUND
Petitioner Lewis T. Coleman is an inmate in F.C.I. Beaumont Low, Beaumont, Texas. Respondent is the United States of America. Petitioner filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence in the district where he was sentenced, the Northern District of Texas, Dallas Division. His petition is properly before this Court. Petitioner contends his conviction and sentence are illegal. Specifically, he claims that he received ineffective assistance of counsel, and that his sentence was enhanced as a result of his counsel's ineffectiveness. The Government filed a response, and Petitioner filed a reply. The Court has considered the pleadings, the record, the transcripts of the plea and sentencing hearings, the presentence investigation report, and the appellate court's record. If a petitioner bases his § 2255 motion on alleged occurrences outside the record, no hearing is required if the allegations, "viewed against the record, either fail to state a claim for relief or are `so palpably incredible or patently frivolous as to warrant summary dismissal.'" Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert denied, 470 U.S. 1058 (1985)). Petitioner's conclusory allegations do not provide a reason to stray from the settled record in this matter. Most of Petitioner's grounds for relief are legal claims, and the record is complete on the claims which require a factual determination. See United States v. Tubwell, 37 F.3d 175, 179 (5th Cir. 1994). The motions, files, and records of this case conclusively show that the petitioner is not entitled to relief. United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). Accordingly, an evidentiary hearing is not required.
ISSUES PRESENTED
On January 13, 2000, Petitioner filed this habeas corpus petition alleging: (1) he received ineffective assistance of counsel; (2) the adjustment to his base offense level was not proved by a preponderance of the evidence; and (3) his offense level was enhanced twice for the same offense. On June 2, 2000, Petitioner filed a supplemental petition arguing that his counsel was ineffective for not requiring the Court to explain the nature of the charges against him.
FACTUAL HISTORY
Petitioner entered a plea of guilty on November 17, 1997 to Count 23 of a superceding indictment charging a violation of 18 U.S.C. § 2321 (Trafficking in Altered Motor Vehicle Parts). The maximum penalty for a plea of guilty to a charge of 18 U.S.C. § 2321 is ten years in prison, a fine not to exceed $250,000.00 or twice the gain to the defendant or loss to any victim, of the sentencing guidelines does not give rise to a constitutional issue cognizable under 28 U.S.C. § 2255. United States v. Segler, 37 F.3d at 1134; United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). Accordingly, Petitioner's claim the trial court erred in calculating the loss under the sentencing guidelines is not cognizable under § 2255.
In any event, to prevail on this claim, Movant must prove that trial counsel provided constitutionally ineffective assistance either with respect to the trial court's calculation of the loss or the restitution amount. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. To merit relief pursuant to § 2255 on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 691 (1984). In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance, or that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689.
A petitioner's failure to establish either prong of the Strickland test requires the court to find that counsel' s performance was not constitutionally ineffective; hence, courts are free to review ineffective assistance claims in any order and need not address both the "deficient" and "prejudice" prong if one component is found lacking. Strickland, 466 U.S. at 697. The prejudice prong of the Strickland test requires a petitioner to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
Petitioner entered an informed plea of guilty as shown during the Rule 11 colloquy. The court personally addressed Movant and asked questions to determine whether he understood the following issues:
1. The nature of the charges to which he was pleading;
2. The maximum penalty provided by law; and
3. The application of the sentencing guidelines.
Sentencing Trans. at 512-14. Counsel indicated that he explained the charges and the maximum penalties with Petitioner. Sentencing Trans. at 11. Petitioner does not indicate any non-frivolous issue that could have been raised by objecting to the sentencing guidelines. A counsel's failure to raise meritless objections is not ineffective assistance of counsel. Clark v. Collins, 19 F.3d 959, 964 (5th Cir. 1994).
Movant failed to show his trial counsel's performance fell below an objective standard of reasonableness and that deficient performance prejudiced his defense. In fact, Petitioner fails to set forth any deficiency on counsel's part. He simply alleges that the calculations are erroneous; therefore, counsel provided ineffective assistance. A counsel's failure to raise every nonfrivolous argument does not deny a defendant the effective assistance of counsel. See Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1993). Petitioner failed to overcome the presumption that trial counsel's objections at sentencing were based upon sound trial strategy. Considering all the facts and circumstances, counsel's performance was not outside the wide range of professional competent assistance. The record shows that trial counsel actively advocated his client's defense throughout the trial and sentencing. No relief is warranted based upon ineffective assistance of counsel with respect to the calculations of the loss and restitution amounts.
ISSUES 2 AND 3 ENHANCEMENT FROM BASE OFFENSE LEVEL FOR SPECIFIC OFFENSE CHARACTERISTICS
Petitioner is again attempting to raise sentencing guidelines issues, under the guise of ineffective assistance of counsel claims. As this court has previously indicated, technical application by the district court of the sentencing guidelines does not give rise to a constitutional issue cognizable under 28 U.S.C. § 2255. Segler, 37 F.3d at 1131. Accordingly, Petitioner's claim that the trial court erred in calculating the guideline level and specific offense characteristics is not cognizable under § 2255. Petitioner argues he received ineffective assistance of counsel because counsel failed to prevent the trial court from enhancing the base offense level for relevant conduct. Petitioner claims the district court erred by enhancing by 15 points his base offense level based upon the loss under USSG § 2F1.1(b)(1). He also claims the court miscalculated the guideline level due to a discrepancy in the amount of restitution he is ordered to pay as compared with the amount of loss of $15,000,000.00. However, nothing in the record undermines the district court's calculation under the sentencing guidelines. Petitioner has offered no evidence that counsel was ineffective for not raising a frivolous objection to this calculation. Petitioner has failed to state a constitutional claim. The sentence imposed by the district court does not exceed the maximum penalty authorized by law and is not subject to collateral attack. Petitioner has failed to satisfy the threshold requirements for post-conviction relief under 28 U.S.C. § 2255. Accordingly, all four of the petitioner's issues fail to state a claim upon which relief can be granted and should be denied.
RECOMMENDATION
Movant's motion to vacate, set aside or modify his conviction and sentence pursuant to 28 U.S.C. § 2255 should be DENIED. All pending motions should be DENIED.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).