United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
contained in the record of the underlying criminal case
discloses the following:
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
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.
of the Motion
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.
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).
U.S.C. § 2255
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.
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 ...