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Graydon v. United States

United States District Court, N.D. Texas

January 5, 2018

PATRICK LEE GRAYDON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE JUDGE

         Came on for consideration the motion of Patrick Lee Graydon ("movant") under 28 U.S.C. § 22 55 to vacate, set aside, or correct sentence. After having considered such motion, the government's response, and pertinent parts of the record in Case No. 4:16-CR-136-A, styled "United States of America v. Patrick Lee Graydon, et al., " the court has concluded that the motion must be dismissed.

         I.

         Background

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

         On June 7, 2016, movant was named in a one-count information charging him and a co-defendant, Tammy Sue Janicek, with conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. CR Doc.[1] 117. On June 21, 2016, movant entered a plea of guilty and signed a written waiver of indictment, CR Doc. 123, and a factual resume setting forth the elements of the offense and stipulated facts, CR Doc. 124. On November 18, 2016, movant was sentenced to a term of imprisonment of 240 months. CR Doc. 159. Movant appealed, CR Doc. 163, but the appeal was dismissed as of April 5, 2017, based on movant's own motion. CR Doc. 176.[2]

         On October 30, 2017, movant filed his motion to set aside, vacate, or correct sentence under 28 U.S.C. § 2255. CR Doc. 187; Doc.[3] 1. Because the motion purported to raise one ground for relief and attempted to hold in reserve "several other issues" he would like reviewed, the court gave movant an opportunity to withdraw the motion and refile it at a later time. Doc. 4. In response to the order, movant filed a notice of appeal, falsely representing that the court had "entered anew on or about October 31, 2017" his final judgment of conviction, "authorizing an out of time appeal." CR Doc. 190. He has not withdrawn the motion at issue.

         II.

         Ground of the Motion

         Movant asserts one ground in support of his motion. He says that he received ineffective assistance of counsel. As supporting facts, he alleges that his attorney persuaded him to dismiss his appeal.

         III. Standards 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); United States v. Placente. 81 F.3d 555, 558 (5th Cir. 1996). Further, if issues "are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack." Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979) (citing Buckelew v. United States, 575 F.2d 515, 517-18 (5th Cir. 1978)).

         B. Ineffective ...


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