United States District Court, N.D. Texas
MEMORANDUM OPINION AND ORDER
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.
contained in the record of the underlying criminal case
discloses the following:
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. 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.
October 30, 2017, movant filed his motion to set aside,
vacate, or correct sentence under 28 U.S.C. § 2255. CR
Doc. 187; Doc. 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He has not withdrawn the motion at issue.
of the Motion
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
Standards of Review A. 28 U.S.C. §
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); 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)).