United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
contained in the record of the underlying criminal case
discloses the following:
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
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.
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
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) .
of the Motion
raises two grounds in support of his motion, both predicated
on ineffective assistance of counsel. The grounds and
supporting facts are worded as follows:
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.