Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lowe v. United States

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

April 3, 2018

KURTIS KEITH LOWE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, JUDGE

         Came on 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.

         I.

         Background

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

         On June 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 Doc.[1] 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.

         On 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[2] 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.

         II.

         Grounds of the Motion

         Movant 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, Doc.[3] 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.

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.