United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
for consideration the motion of Kurtis Keith Lowe
("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, movant's reply, and pertinent parts of the
record in No. 4:15-CR-154-A, styled "United States of
America v. Kurtis Keith Lowe, et al., " the court has
concluded that the motion should be dismissed.
contained in the record of the underlying criminal case
discloses the following:
11, 2015, movant was named along with a co-defendant in a
one-count information charging him with conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 371. CR
25. On July 10, 2015, movant appeared for arraignment and
pleaded guilty to the count of the information. CR Doc. 34.
He signed a waiver of indictment, CR Doc. 35, and a factual
resume setting forth the penalties he faced, the elements of
the crime to which he pleaded, and the facts to which he
stipulated that established the crime. CR Doc. 36. Under
oath, movant stated that no one had made any promise or
assurance of any kind to induce him to plead guilty. Further,
movant stated his 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 than
the sentence recommended by the advisory guidelines and
movant would be bound by his guilty plea; movant was
satisfied with his counsel and had no complaints regarding
his 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. 84.
October 23, 2015, the court sentenced movant to a term of
imprisonment of 6 0 months and ordered him to pay restitution
of $2, 373, 462.70, CR Doc. 85; CR Doc. 66. Movant
appealed. CR Doc. 73. His counsel filed an
Anders brief and the appellate court allowed him
to withdraw, dismissing the appeal as presenting no
non-frivolous issues. United States v. Lowe, 669
Fed.Appx. 712 (5th Cir. 2016) . Movant did not file a
petition for writ of certiorari.
of the Motion
asserts four grounds in support of his motion. As best the
court can tell, he urges: (1) his counsel misinformed him
regarding provisions of the Speedy Trial Act,
1 at 4; (2) his counsel suffered from a conflict of interest,
id. at 5-6; (3) the undersigned should have recused,
id. at 6-7; and, (4) the government must demonstrate
compliance with the Appointment Clause of the U.S.
Constitution, Id. at 7.
of Review A. 28 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); 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 ...