United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER UNITED STATES DISTRICT JUDGE.
a federal prisoner represented by counsel, filed this section
2255 motion challenging his convictions and sentences for
conspiracy to interfere with commerce by robbery and
discharging a firearm during a crime of violence. (Docket
Entry No. 197.) The Government filed a motion for summary
judgment premised on Defendant's plea agreement waiver.
(Docket Entry No. 201.) Defendant filed a response in
opposition. (Docket Entry No. 202.)
reviewed the section 2255 motion, the motion for summary
judgment, the response, the record, and the applicable law,
the Court GRANTS the Government's motion for summary
judgment and DENIES section 2255 relief for the reasons that
pleaded guilty to conspiracy to interfere with commerce by
robbery and discharging a firearm during a crime of violence.
The Court sentenced him to a total of 177 months'
imprisonment, to be followed by a five-year term of
supervised release, and ordered restitution in an amount of
$200, 000.00 and a $200.00 special assessment.
appeal was dismissed as barred by his plea agreement waiver.
United States v. Freeman, Appeal No. 13-20405 (5th
raises the following claims in his section 2255 habeas
1. Pretrial counsel was ineffective in failing to
a. properly communicate and inform him of the risks and
consequences of pleading guilty as opposed to proceeding to
b. conduct an adequate, independent pretrial investigation;
c. file pretrial motions to put the Government's case to
an adversarial test; and d. negotiate a favorable plea
2. Sentencing counsel was ineffective in failing to
a. review, discuss and explain the PSR;
b. file a memorandum in mitigation of punishment; and
c. object to the sentence as substantially unreasonable.
Government argues that these claims are barred by
Defendant's plea agreement waiver and that habeas relief
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, apro
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).
written plea agreement executed and filed in this criminal
case, Defendant agreed to the following provisions:
8. Defendant is aware that Title 18, U.S.C. § 3742
affords a defendant the right to appeal the sentence imposed.
The defendant agrees to waive the right to appeal the
sentence imposed or the manner in which it was determined on
any grounds set forth in Title 18 U.S.C. § 3742.
Additionally, the defendant is aware that Title 28, U.S.C.
§ 2255, affords the right to contest or
"collaterally attack" a conviction or sentence
after the conviction or sentence has become final. The
defendant waives the right to contest his/her conviction or
sentence by means of any post-conviction proceeding. In the
event the defendant files a notice of appeal following the
imposition of the sentence, the United States will assert its
rights under this agreement and seek specific performance of
(Docket Entry No. 90.)
the plea hearing, the Court inquired into the voluntariness
of Defendant's written plea agreement:
THE COURT: All right. Counsel, I understand there's a
written plea ...