United States District Court, E.D. Texas
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
A. CRONE UNITED STATES DISTRICT JUDGE
John Oliver Manning, a federal prisoner currently confined at
USP Levenworth, proceeding pro se, filed this motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255.
court referred this matter to the Honorable Keith Giblin,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
court. The Magistrate Judge recommends the motion to vacate,
set aside, or correct sentence be denied.
court has received and considered the Report and
Recommendation of United States Magistrate Judge filed
pursuant to such referral, along with the record, and
pleadings. Movant filed objections to the Magistrate
Judge's Report and Recommendation. This requires a de
novo review of the objections in relation to the
pleadings and the applicable law. See Fed. R. Civ.
P. 72(b). After careful consideration, the court find's
movant's objections are without merit.
first objects to the Magistrate Judge's findings relating
to his claim of ineffective assistance of counsel concerning
the alleged perjured testimony of Jessica McCafferty. Movant
argues the Magistrate Judge erred in finding there was no
ineffective assistance of counsel as the Government knew the
information was false before it was solicited, McCafferty
“admitted” the information was false on
cross-examination, and the information was material.
Objections, pg. 2 (docket entry no. 27). Assuming, without
finding, the testimony was false and material, movant has not
provided any evidence or witnesses to support a conclusion
that the Government knew the testimony was false. His claims
of prosecutorial misconduct are merely conclusory. Koch
v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990)
(“mere conclusory allegations on a critical issue are
insufficient to raise a constitutional issue”). Under
these circumstances, movant cannot meet his burden of showing
that his counsel's performance fell below an objective
standard of reasonableness and somehow prejudiced his
defense. Strickland v. Washington, 466 U.S. 668,
689-94 (1984). Movant is not entitled to relief on this
next objects to the findings of the Magistrate Judge as it
relates to his ineffective assistance of counsel claim
concerning the rejection of the plea offer in this case.
Movant argues his trial counsel was ineffective when he
advised movant to “go to trial instead of accepting a
plea that would have insured [sic] a lesser sentence.”
Original Petition, pg. 4 (docket entry no. 1). As outlined by
the Magistrate Judge, movant now acknowledges that he, in
fact, rejected the initial plea offer and advised defense
counsel to go back and negotiate a better deal. Specifically,
movant asked trial counsel to convey his counter offer to the
Government to consider a plea to count 4 if the Government
would forgo any enhancements, a counter offer which was
ultimately rejected. Movant's allegation of ineffective
assistance of counsel as to the plea offer continue to
evolve, undermining his claim. The court is not required to give
credence to such bald, inconsistent allegations or sworn
declarations. United States v. Batamula, 823 F.3d
237, 240 (5th Cir. 2016) (explaining that, to avoid summary
dismissal and obtain a hearing, however, the petitioner must
allege a non-frivolous prejudice claim under
Strickland and its progeny”); Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (explaining
that, while “pro se habeas petitions must be
construed liberally, mere conclusory allegations on a
critical issue are insufficient to raise a constitutional
issue”); Ross v. Estelle, 694 F.2d 1008, 1011
(5th Cir. 1983) (“Absent evidence in the record, a
court cannot consider a habeas petitioner's bald
assertions on a critical issue in his pro se
petition, unsupported and unsupportable by anything else
contained in the record, to be of probative evidentiary
value.”). That movant now feels some remorse at letting
this opportunity slip away does not mean his defense attorney
was ineffective. A defendant possesses the “ultimate
authority” to determine his plea. See Burt v.
Titlow, 134 S.Ct. 10, 17 (2013) (citing Florida v.
Nixon 543 U.S. 175, 187 (2004)). Furthermore, movant has
failed to show that “but for the alleged ineffective
advise of counsel there is a reasonable probability that the
plea offer would have been presented to the court (i.e. that
the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or
both, under the offer's terms would have been less severe
than under the judgment and sentence that in fact were
imposed.” Lafler v. Cooper, 566 U.S. 156, 164
(2012). Movant has failed to establish deficient performance
or prejudice pursuant to Strickland and, therefore,
is not entitled to relief on this claim. 466 U.S. 668 (1984).
finally contends the Magistrate Judge erred in finding no
ineffective assistance of appellate counsel. With respect to
this claim, movant argues his appellate counsel was
ineffective as she did not raise the issue of movant being
improperly designated as an Armed Career Criminal based on
movant's three prior bank robbery convictions. Movant
argues that under United States Sentencing Guideline (USSG)
§ 4A1.2(a)(2), prior sentences count as a single
sentence if the sentences were imposed on the same day or the
cases were consolidated for trial and sentencing. Movant
avers that because his trial counsel objected to the
enhancements, his appellate counsel should have also argued
this point on appeal.
outlined by the Magistrate Judge, Section 4A1.2 applies to
the criminal history calculation. The ACCA only inquires
whether there are three previous convictions for a violent
felony that were committed on different occasions. 18 U.S.C.
§ 924(e)(1). Section 4A1.2 does not apply to the
determination of whether the defendant is subject to an
enhanced sentence under 18 U.S.C. § 924(e). USSG §
4B1.4 n.1. Furthermore, it is well established in this
circuit that “[m]ultiple convictions arising from the
same judicial proceeding but separate criminal transactions
constitute multiple convictions for purposes of §
924(e).” United States v. White, 465 F.3d 250,
253 (5th Cir. 2006) (quoting United States v.
Ressler, 54 F.3d 257, 259 (5th Cir. 1995)).
counsel is obligated to raise and brief only those issues
that are believed to have the best chance of success.
Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir.
2003). The Court must presume movant's appelleate counsel
made an informed decision that this argument would not prove
fruitful given the Fifth Circuit case law to the contrary.
Walkerton v. Collins, 950 F.2d 1054, 1065 (5th Cir.
1992) (A reviewing court “must strongly presume that
trial counsel rendered adequate assistance and that the
challenged conduct was the product of a reasoned trial
strategy”), cert. denied, 509 U.S. 921 (1993).
Movant's objections to this claim are overruled.
his remaining claims, movant states he “objects to the
Magistrate's Recommendations concerning all remaining
claims. Movant relies on the merit of his pleadings without
further argument, and without concession of any right.”
Objections, pg. 12 (docket entry no. 27). Parties filing
objections, however, must specifically identify those
findings objected to. Frivolous, conclusive or general
objections need not, and will not, be considered by this
court. See Nettles v. Wainwright, 677 F.2d 404, n. 8
(5th Cir. 1982) (overruled on other grounds).
the objections of the movant are OVERRULED.
The findings of fact and conclusions of law of the Magistrate
Judge are correct, and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in
this case in accordance with the Magistrate Judge's
addition, the court is of the opinion movant is not entitled
to a certificate of appealability. An appeal from a judgment
denying post-conviction collateral relief may not proceed
unless a judge issues a certificate of appealability.
See 28 U.S.C. § 2253. The standard for a
certificate of appealability requires the movant to make a
substantial showing of the denial of a federal constitutional
right. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th
Cir. 2004). To make a substantial showing, the movant need
not establish that he would prevail on the merits. Rather, he
must demonstrate that the issues are subject to debate among
jurists of reason, that a court could resolve the issues in a
different manner, or that the questions presented are worthy
of encouragement to proceed further. See Slack, 529
U.S. at 483-84. Any doubt regarding whether to grant a
certificate of appealability should be resolved in favor of
the movant, and the severity of the penalty may be considered
in making this determination. See Miller v. Johnson,
200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531
U.S. 849 (2000).
case, the movant has not shown that the issues are subject to
debate among jurists of reason or worthy of encouragement to
proceed further. As a result, a ...