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Stewart v. United States

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

April 4, 2018

CHRISTOPHER MICHAEL STEWART, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Christopher Michael Stewart ("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, and pertinent parts of the record in No. 4:15-CR-212-A, styled "United States of America v. Christopher Michael Stewart, " the court has concluded that the motion should be denied.

         I.

         Background

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

         On September 16, 2015, movant was named in a one-count indictment charging him with possession with intent to distribute 5 0 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). CR Doc.[1] 10. On November 6, 2015, movant appeared for rearraignment and pleaded guilty to the count of the indictment. CR Doc. 18. He signed a factual resume setting forth the maximum penalty he faced, the elements of the offense, and stipulated facts that established his guilt. CR Doc. 19. 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 that 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. 49.

         According to the PSR, movant had a base offense level of 36 plus two-level enhancements for possession of a dangerous weapon and maintaining a drug-involved premises. CR Doc. 21, ¶¶ 25-27. He received a three-level reduction for acceptance of responsibility. Id., ¶¶ 32-33. Movant's criminal history category was VI, giving him an advisory guideline range of 360 to 480 months. Id., ¶¶ 52, 102. Movant raised several objections, including an objection to the purity and quantity of methamphetamine for which he was held accountable. CR Doc. 26. The court ordered that further testing be conducted. CR Doc. 27. The testing actually established a basis for a higher level of purity, which, in turn, produced an even greater drug quantity, but did not change the guideline range. CR Doc. 29. Movant then raised a new objection as to treatment of cash that was seized at his arrest. CR Doc. 34. His objections were overruled at sentencing. CR Doc. 4 7 at 7-10. The court noted that movant's true offense conduct would have subjected him to a life sentence. Id. at 24.

         The court sentenced movant to a term of imprisonment of 4 80 months. CR Doc. 4 7 at 25; CR Doc. 40. Movant appealed and his sentence was affirmed. United States v. Stewart, 672 Fed.Appx. 501 (5th Cir. 2017) .

         II.

         Grounds of the Motion

         Movant raises two grounds in support of his motion, both predicated on ineffective assistance of counsel. The grounds and supporting facts are worded as follows:

         GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL

Appeal attorney J. Warren St. John failed to file a writ of certiorari when defendant, Christopher Stewart requested appeal attorney to file a writ of certiorari on his behalf. According to the criminal justice act adopted by the Fifth circuit Court of appeals, when a client request attorney of record to file a writ of certiorari the attorney must do so or the attorney must withdraw as counsel from record.

         Doc.[2] ...


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