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Luckey v. United States

United States District Court, N.D. Texas, Dallas Division

May 4, 2018




         Movant Antonio Jahvon Luckey, a federal prisoner, has filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Dkt. No. 2. The government has filed a court-ordered response. See Dkt. No. 5. Luckey has failed to file a reply brief, and the time by which to do so has expired. The Court now concludes that his claims for relief should be denied.

         Applicable Background

         Luckey entered a plea of guilty to - and was adjudged guilty of - being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) and § 924(a)(2) [Count 1]; possessing a controlled substance with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) [Count 2]; and possessing, brandishing, and discharging a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) [Count 3], and the Court sentenced him to concurrent sentences of 57 months of imprisonment as to Counts 1 and 2 and a consecutive sentence of 120 months of imprisonment as to Count 3. He did not file a direct appeal. And this motion - raising claims that his trial counsel was constitutionally ineffective and that his Section 924(c) conviction is no longer valid in light of Johnson v. United States, 135 S.Ct. 2551 (2015) - is timely under 28 U.S.C. § 2255(f)(1).

         Legal Standards and Analysis

         I. Ineffective Assistance of Counsel

         The Court reviews Sixth Amendment claims concerning the alleged ineffective assistance of counsel (“IAC”), whether at trial or on direct appeal, under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984), under which a movant must demonstrate that the performance of his attorney fell below an objective standard of reasonableness, see Id. at 687-88. To be cognizable under Strickland, counsel's error must be “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687; see also Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 775 (2017) (reaffirming that “[i]t is only when the lawyer's errors were ‘so serious that counsel was not functioning as the “counsel” guaranteed ... by the Sixth Amendment' that Strickland's first prong is satisfied” (citation omitted)).

         The movant also must prove that he was prejudiced by his attorney's substandard performance. See Id. at 687, 692. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

[B]ecause of the risk that hindsight bias will cloud a court's review of counsel's trial strategy, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”

Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012) (quoting Strickland, 466 U.S. at 689).

         “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). Moreover, “[j]ust as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.” Harrington v. Richter, 562 U.S. 86, 110 (2011).

         To demonstrate prejudice, Luckey “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, “the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington, 562 U.S. at 111. “Instead, Strickland asks whether it is ‘reasonably likely' the result would have been different, ” which “does not require a showing that counsel's actions ‘more likely than not altered the outcome, ' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Id. at 111-12 (quoting Strickland, 466 U.S. at 693, 696, 697). “The likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112.

         The totality of Luckey's IAC claims are: “I was misled by my counsel he never answered by phone calls or returned them I was basically lied to”; “I'm being charged twice for the same gun possessing in firing the gun”; “I feel like I was coerced into confession”; and “I was told plea or get a max of 15 years I plea in still get 15 years.” Dkt. No. 2 at 7. These claims are merely conclusional and therefore meet neither prong of Strickland.

         As the United States Court of Appeals for the Fifth Circuit has held in the context of IAC claims asserted by a pro se litigant, “mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.” Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)); see also Birby v. Stephens, 595 Fed.Appx. 350, 354 (5th Cir. 2014) (per curiam) (“This Court has made clear that conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.” (quoting Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing, in turn, Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)))); United States v. Henges, 591 Fed.Appx. 287, 287 (5th Cir. 2015) (per curiam) (“[C]onclusional assertions are ...

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