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Clark v. United States

United States District Court, N.D. Texas, Fort Worth Division

May 4, 2017

JUSTIN CLARK, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Justin Clark ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, the government's response, and pertinent parts of the record in Case No. 4:15-CR-271-A, styled "United States of America v. Oscar Vasquez, et al., " the court has concluded that the motion should be denied.

         I.

         Background

         Information contained in the record of the underlying criminal case discloses the following:

         On December 9, 2015, movant was named with a number of other defendants in a one-count indictment charging him with conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. CR Doc.[1] 60. On January 27, 2016, movant pleaded guilty to the indictment. CR Doc. 97. On June 6, 2016, movant was sentenced to a term of imprisonment of 2 93 months. CR Doc. 2 60; CR Doc. 2 62. Movant did not appeal.

         II.

         Ground, of the Motion

         Movant asserts three grounds in support of his motion, all alleging ineffective assistance of counsel. In his first ground, movant says that his attorney failed to file a notice of appeal, despite having been requested to do so. Doc.[2] 1 at fourth page (bearing typewritten "Page 5" notation). In his second ground, he says that his counsel was ineffective for failing to raise on appeal that the two-level enhancement movant received was improper. Doc. 1 at fifth page (bearing typewritten "Page 6" notation). And, in his third ground, movant says that his counsel was ineffective for having failed to object to the presentence report for failing to include a reduction based on mitigating role in the offense "and/or pursuing same on direct appeal." Doc. 1 at sixth page (bearing typewritten "Page 7" notation). Notably, the motion is not signed, although the form clearly requires the "Signature of Movant." Doc. 1 at twelfth page (bearing typewritten "Page 13" notation). See Rule 2(b)(5) of Rules Governing Section 2255 Proceedings for the United States District Courts (requiring signature under penalty of perjury).

         III.

         Standard.of.Review

         A. 28 U.S.C. § 2255

         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, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) . A defendant can challenge his conviction or sentence after it is presumed final on issues of constitutional or jurisdictional magnitude only, 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). Further, if issues "are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a ...


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