United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER, UNITED STATES DISTRICT JUDGE.
Raymond Tierra Johnson, proceeding pro se, filed a
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. (Docket Entry No. 832). The Government
filed a response, seeking denial of section 2255 relief.
(Docket Entry No. 844.) No. further pleadings were filed by
reviewed the section 2255 motion, the Government's
response, matters of record, and the applicable law, the
Court DENIES the section 2255 motion for the reasons that
found defendant guilty of one count of conspiracy to commit
bank robbery by force, violence, and intimidation; two counts
of bank robbery; two counts of use of a firearm in
furtherance of a crime of violence; and one count of hostage
taking. The Court sentenced him to 744 months'
imprisonment and five years' supervised release.
Defendant's conviction was affirmed on direct appeal.
United States v. Smith, 822 F.3d 755, 762 (5th Cir.
raises the following grounds for habeas relief under section
1. Trial counsel was ineffective in failing to
a. properly investigate the case;
b. object to evidence of the firearm;
c. call rebuttal witness;
d. object to the jury charge;
e. object to the timing of the sentencing hearing; and
f. challenge the PSR.
2. The trial court erred in assessing a two-level enhancement
for use of a minor during commission of the offense in
calculating his sentencing guideline range.
compliance with the Court's order, trial counsel
submitted an affidavit under seal, testifying as to the facts
surrounding defendant's claims for ineffective assistance
of counsel. (Docket Entry No. 841.) The Government argues
that Defendant's habeas claims are without merit and that
the section 2255 motion should be denied.
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to
section 2255: (1) the imposition of a sentence in violation
of the Constitution or the laws of the United States; (2) a
lack of jurisdiction of the district court that imposed the
sentence; (3) the imposition of a sentence in excess of the
maximum authorized by law; and (4) the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255;
United States v. Placente, 81 F.3d 555, 558 (5th
Cir. 1996). Section 2255 is an extraordinary measure, and
cannot be used for errors that are not constitutional or
jurisdictional if those errors could have been raised on
direct appeal. United States v. Stumpf, 900 F.2d
842, 845 (5th Cir. 1990). If the error is not of
constitutional or jurisdictional magnitude, the movant must
show the error could not have been raised on direct appeal
and would, if condoned, result in a complete miscarriage of
justice. United States v. Smith, 32 F.3d 194, 196
(5th Cir. 1994).
pleadings of a pro se prisoner litigant are reviewed
under a less stringent standard than those drafted by an
attorney, and are provided a liberal construction. Haines
v. Kerner, 404 U.S. 519 (1972). Nevertheless, a pro
se litigant is still required to provide sufficient
facts to support his claims, and "mere conclusory
allegations on a critical issue are insufficient to raise a
constitutional issue." United States v. Pineda,
988 F.2d 22, 23 (5th Cir. 1993). Accordingly, "[a]bsent
evidence in the record, a court cannot consider a habeas
petitioner's bald assertion on a critical issue in his
pro se petition ... to be of probative evidentiary
value." Ross v. Estelle, 694 F.2d 1008, 1011
(5th Cir. 1983).
Assistance of Trial Counsel
United States Supreme Court's decision in Strickland
v. Washington provides the familiar two-pronged test for
establishing a claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. 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.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. 668, 687 (1984). A court need not address both
components of the inquiry if the defendant makes an
insufficient showing on one. Carter v. Johnson, 131
F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either
deficient performance or actual prejudice is fatal to an
ineffective assistance claim.").
counsel's performance is strongly presumed to fall within
the wide range of reasonable professional assistance.
Premo v. Moore, 562 U.S. 115, 121 (2011). To
overcome that presumption, a habeas petitioner must
"show that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed the defendant
by the Sixth Amendment." Id. at 121-22
(internal quotations omitted). The standard for judging
counsel's representation is a deferential one. "The
question is whether an attorney's representation amounted
to incompetence under 'prevailing professional norms,
' not whether it deviated from best practices or most
common custom." Id.
contends that trial counsel was ineffective in the following