United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY, SENIOR U.S. DISTRICT JUDGE.
Michael Cooke Faseler, II, filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255,
memorandum in support, and supplemental motion under 28
U.S.C. § 2255. D.E. 56, 56-2, 65. Pending before
the Court are the United States of America's (the
“Government”) motion and supplemental motion for
judgment on the record (D.E. 64, 71), to which Movant has
responded (D.E 66, 72, 73).
was charged with being a felon in possession of two firearms,
which were found on his person after sheriff's deputies
were dispatched to a disturbance in which Movant was
involved. Movant filed a motion to suppress evidence of the
firearms on the grounds the deputies did not have reasonable
suspicion to conduct the pat-down search that uncovered the
Court conducted an evidentiary hearing on Movant's motion
to suppress, during which Nueces County Sheriff's
Deputies Luis Munoz and Eusebio Lerma testified regarding the
events that led to Movant's arrest. See
9/21/2016 Supp. Hrg. Tr., D.E. 48. On June 29, 2016, partners
Munoz and Lerma were dispatched to a weapons disturbance off
Highway 286 and FM 43 at a fireworks stand located on
property owned by Movant's father. Witnesses provided a
description of two males, one in a red shirt and one in a
black shirt and black jeans, who were traveling in a black
truck. Deputies learned that the suspect, Movant Michael
Faseler, made comments to individuals at the fireworks stand
that he was “going to shoot the place up.” Two
other officers warned the deputies via radio that local law
enforcement had previous disturbance calls at the Faseler
residence and Movant was known to be violent.
the deputies arrived at the fireworks stand, they spoke to a
visibly shaken Justin Kemp. Kemp was the manager of the
fireworks stand and stated that the disturbance involved an
alleged non-payment of rental income and that Movant had
already left the scene. The deputies left but returned an
hour later when they received another call stating that
Movant had come back to the fireworks stand. Upon their
second arrival, the deputies observed two males matching the
description provided by the witnesses walking from the
fireworks stand to a black truck. The deputies detained the
men on suspicion of committing the Texas offense of
terroristic threat. They identified Movant, who was wearing a
black shirt and black jeans, and his companion, Steven Engel.
Deputy Munoz told Movant he was going to pat him down for
officer safety, Movant admitted he had two guns on his
person. Deputy Munoz performed the pat down and retrieved the
two weapons, both of which had a round in the chamber. He
also found ammunition in Movant's pocket. Movant had a
prior felony conviction and was prohibited from carrying a
firearm. He was arrested for terroristic threat and being a
felon in possession of a firearm.
the Government presented its evidence, the Court asked
Movant's counsel if he had any witnesses or evidence to
present. Counsel replied that he did not. In closing,
Movant's counsel argued that Deputy Munoz was not
justified in conducting the pat down, and the deputies could
not cite any specific articulable facts that would justify
their belief that Movant was armed and dangerous. The
Government countered that the testimony adduced at the
hearing that Movant threatened to “shoot the place up,
” together with Movant's admission that he was
carrying guns on his person, supported Deputy Munoz'
execution of the pat-down search. The Court agreed with the
Government and denied Movant's motion to suppress.
October 17, 2016, Movant entered a conditional guilty plea to
Count One of the Indictment, retaining his right to appeal
the denial of his motion to suppress.
Presentence Investigation Report assigned Movant a base
offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2)
because he had at least two prior felony convictions for
either a crime of violence or a controlled substance offense.
Two levels were added pursuant to § 2K2.1(b)(1)(A)
because the offense involved 3 to 7 firearms. Movant was given
a three-level adjustment for acceptance of responsibility.
The resulting advisory Guideline range for Level 23, Criminal
History Category V, was 84-105 months. On November 28, 2016,
the Court sentenced Movant to 70 months' imprisonment and
3 years' supervised release. Judgment was entered the
accordance with his conditional plea, Movant appealed the
denial of his motion to suppress. On January 24, 2018, the
Fifth Circuit affirmed the denial of Movant's motion to
suppress and affirmed his conviction and sentence. Movant did
not file a petition for certiorari with the Supreme Court.
His conviction became final on April 24, 2018. He filed the
present motion on July 30, 2018. It is timely.
claims that defense counsel was constitutionally ineffective
1. Failed to adequately investigate and successfully litigate
the motion to suppress, and
2. Failed to object to the four-level enhancement under
U.S.S.G. § 2K2.1(a)(2).
28 U.S.C. § 2255
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside, or correct his sentence: (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that 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). “Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).