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Frantzen v. United States

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

March 26, 2018




         Came on for consideration the motion of Holly Leanne Frantzen ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered such motion, its supporting memorandum, the government's response, the reply, and pertinent parts of the record in Case No. 4:16-CR-132-A, styled "United States of America v. Charles Ben Bounds, et al., " the court has concluded that the motion should be dismissed as untimely.

         I. Background

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

         On June 15, 2016, movant was named with others in a one-count second superseding indictment charging her with conspiracy to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 84 6. CR Doc.[1] 286. On July 29, 2016, movant appeared for rearraignment and pleaded guilty without benefit of a plea agreement. CR Doc. 459. Movant signed a factual resume setting forth the penalties she faced, the elements of the offense, and the stipulated facts reflecting that she had committed each of the elements of the offense. CR Doc. 4 61. Under oath, movant stated that no one had made any promise or assurance of any kind to induce her to plead guilty. Further, movant stated her understanding that the guideline range was advisory and was one of many sentencing factors the court could consider; that the guideline range could not be calculated until the presentence report ("PSR") was prepared; the court could impose a sentence more severe that the sentence recommended by the advisory guidelines and movant would be bound by her guilty plea; movant was satisfied with her counsel and had no complaints regarding her representation; and, movant and counsel had reviewed the factual resume and movant understood the meaning of everything in it and the stipulated facts were true and accurate. CR Doc. 1451.

         Movant's PSR calculated her total offense level to be 35, based on a base offense level of 3 6 with a two-level enhancement for possession of a firearm and a three-level reduction for acceptance of responsibility. CR Doc. 778, ¶¶ 36-45. Her total offense level combined with a criminal history category of IV produced a guideline range of 235 to 293 months. Id., ¶ 96. The PSR also noted that movant had pending state charges against her. Id., ¶ 97. Movant did not object to the PSR. CR Doc. 1001. The government filed a motion for downward departure based on movant's substantial assistance to the government in its investigation and prosecution of others. CR Doc. 817. The court granted the motion and sentenced movant to a term of imprisonment of 200 months, giving her the benefit of a 35-month reduction below the bottom of the guideline range. CR Doc. 1454 at 13; CR Doc. 997. The court specifically informed movant of her right to appeal and told her that the clerk would file a notice of appeal forthwith if she were to specifically request it. CR Doc. 1454 at 16. The court noted that movant and her attorney had been given a form explaining appeal rights that they were to review and sign once they were satisfied that they understood it. Movant's counsel affirmed that the form had been signed and returned to the court co-ordinator. Id.

         Movant did not appeal and her judgment became final on January 6, 2017. United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) .

         II. Ground of the Motion

         Movant asserts one ground in support of her motion, worded as follows: "Failed to properly consult with Frantzen regarding a direct appeal." Doc.[2] 1 at 4.[3] As supporting facts, movant alleges:

After sentencing, Frantzen stated that she spoke with counsel regarding relief because of the length of time she received. Counsel told her that an appeal would not be in her best interest because she would lose her reduction under Rule 35(b). Counsel also told her that she received a good sentence and no other relief would be available to her. *See attached memorandum*

Id. In her memorandum, movant admits that she knew she had fourteen days in which to file a notice of appeal because the court had so admonished her. Doc. 2 at 1.

         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 ...

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