United States District Court, W.D. Texas, El Paso Division
RICHARD GRAY, Fed. Reg. No. 22708-380, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER DENYING MOVANT'S
MOTION TO VACATE
R. MARTINEZ, UNITED STATES DISTRICT JUDGE
day, the Court considered Movant Richard Gray's
[hereinafter “Movant”] pro se “Motion under
28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody” (ECF No. 735)
[hereinafter “Motion to Vacate”], filed on March
26, 2018; Movant's “Memorandum in Support of
Section 2255 Motion” (ECF No. 750) [hereinafter
“Memorandum in Support”], filed on May 18, 2018;
and the Government's “Response to Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody” (ECF No. 774)
[hereinafter “Response”], filed on September 14,
2018, in the above-captioned cause. After due consideration,
the Court is of the opinion that Movant's Motion to
Vacate should be denied, for the reasons that follow.
Additionally, the Court is of the opinion that Movant should
be denied a certificate of appealability.
FACTUAL AND PROCEDURAL BACKGROUND
August 21, 2013, a grand jury returned an
“Indictment” (ECF No. 16) charging Movant with
one count of Sex Trafficking By Force, Fraud, and Coercion in
violation of 18 U.S.C. §§ 1591(a)(1), (2) and
(b)(1) and one count of Conspiracy to Sex Traffic Persons in
violation of 18 U.S.C. § 1594(c). Then, on January 15,
2014, a grand jury charged Movant in a “Second
Superseding Indictment” (ECF No. 138) with additional
counts of Sex Trafficking By Force, Fraud, and Coercion in
violation of 18 U.S.C. §§ 1591(a)(1), (2) and
(b)(1), and Conspiracy to Sex Traffic Persons in violation of
18 U.S.C. § 1594(c). Additionally, the grand jury
charged Movant with Sex Trafficking of Children in violation
of 18 U.S.C. §§ 1591(a)(1), (2) and (b)(2) and
Transportation for Prostitution in violation of 18 U.S.C.
§ 2421. Second Superseding Indictment at 5, 9.
Edgar Holguin was initially appointed to represent Movant on
behalf of the Federal Public Defender's office. Movant
filed a “Motion to Withdraw Counsel of Record”
(ECF No. 201), which was signed on March 18, 2014, and
entered on March 24, 2014. The Court held a hearing on
Movant's Motion to Withdraw Counsel of Record and granted
the motion. Order Granting Mot. to Withdraw Counsel of
Record, Mar. 26, 2014, ECF No. 253. Accordingly, Attorney
Holguin's appointment was terminated, and Attorney Thomas
Brady was substituted to represent Movant at trial.
December 1, 2014, the Court held a Frye Hearing. See
generally Resp. Ex. 21 (Motion Hearing Transcript). At the
hearing, the Government put its plea offer-an offer of
twenty-five years' imprisonment-on the record.
Id. at 29:21-22. The Court reviewed the pre-plea PSR
provided to the defendants and noted that, if the defendants
were to go to trial and be found guilty, they would face a
potential sentence of lifetime imprisonment. Id. at
33:1-5. After reviewing this information, Movant rejected the
Government's plea offer. Id. at 43:5-8.
January 5, 2015, Jury Selection and Trial commenced. Minute
Entry, ECF No. 497. On January 13, 2015, the parties
concluded presenting evidence, and the Court charged the
jury. Minute Entry, ECF No. 508. The jury completed
deliberations on January 16, 2015, and reached a unanimous
verdict. See Jury Note 10 (Sealed), ECF No. 529. The
jury found Movant not guilty as to count 3 of the Indictment
and guilty as to counts 4, 6, 9, and 11. Verdict, Jan. 16,
2015, ECF No. 531.
25, 2015, the Court held Movant's sentencing hearing.
See generally Resp. Ex. 25 (Sentencing Hearing
Transcript). The Court reviewed Movant's Presentence
Investigation Report (PSR) and discussed Movant's offense
level. Specifically, the individual offenses with the highest
base offense level had a base offense level of 30 and an
adjusted offense level of 38 because four points were added
for the use of force; two points were added because of
serious bodily injury during an assault in Killeen, Texas;
and a two-level enhancement was applied due to the use of a
computer. Id. at 5:8-19. Because there were multiple
offenses, adding up to six units, Movant's final adjusted
offense level was 44, and his criminal history category was
two. Id. at 7:6-25. Because the Sentencing
Guidelines' highest offense level is 43, any offense
level that exceeds 43 is treated as a 43 pursuant to the
guidelines; thus, Movant's offense level was treated as a
43. Id. at 8:1- 4. The corresponding guidelines'
range for an offense level of 43 is life imprisonment.
Id. The Court sentenced Movant to a guidelines'
sentence of life imprisonment as to each of counts four, six,
and nine, and to 120 months imprisonment as to count eleven,
to be served concurrently. J. in a Criminal Case, June 30,
2015, ECF No. 628.
March 26, 2018, Movant filed his Motion to Vacate. Therein,
Movant challenges his sentence based on ineffective
assistance of counsel. Specifically, Movant asserts that his
counsel provided constitutionally ineffective assistance when
the attorney failed to: (1) properly advise Movant of his
sentencing exposure and, as a result, Movant rejected the
prosecutor's plea offer of twenty-five years'
imprisonment; (2) tell Movant that he could plead guilty and
receive a three-level downward adjustment to his sentence;
(3) advise Movant that he could request a bench trial; (4)
object to the jury charge on count six of the Second
Superseding Indictment, which constructively amended the
Indictment; (5) request Movant's Facebook evidence which
would have rebutted the testimony against him; (6) object to
the selection of a jury without any African American members;
(7) advise Movant that the ultimate decision to testify was
his; (8) secure evidence to impeach a witness; (9) move for a
mistrial after the prosecution constructively amended count
six of the Second Superseding Indictment; (10) secure an
expert on the credibility of a witness; (11) object to the
use of force sentencing enhancement; (12) obtain a mental
expert who would have testified that Movant returned from
Iraq with Posttraumatic Stress Disorder; and (13) ask the
Court to consider Movant's age and object to the
excessive sentence. Mot. to Vacate at 4-8, Mar. 26, 2018, ECF
No. 735. For these reasons, Movant asks the Court to vacate
his sentence and allow him the following relief: (1) accept
the plea offer, (2) plead guilty to the Second Superseding
Indictment, (3) receive a new trial, and/or (4) have a new
sentencing hearing. Id. at 12.
18, 2018, Movant filed his Memorandum in Support, which
provides Movant's legal theories supporting his Motion to
Vacate. On September 14, 2018, the Government filed its
§ 2255 motion “provides the primary means of
collateral attack on a federal sentence.” Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting
Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).
Relief under § 2255 is warranted for errors that
occurred at trial or at sentencing. Ojo v. INS, 106
F.3d 680, 683 (5th Cir. 1997). Before a court will grant
relief pursuant to § 2255, a movant must establish: (1)
his sentence was imposed in violation of the Constitution or
laws of the United States; (2) the sentencing court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack.
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir.
1995) (citations omitted).
movant may collaterally attack a sentence by alleging
ineffective assistance of counsel pursuant to the Sixth
Amendment. The Sixth Amendment not only guarantees a criminal
defendant the right to a speedy trial, but also the right to
the effective assistance of counsel. Lee v. United
States, 137 S.Ct. 1958, 1964 (2017). A court analyzes an
ineffective assistance of counsel claim presented in a §
2255 motion under the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
United States v. Willis, 273 F.3d 592, 598 (5th Cir.
to the Strickland test, to succeed on a claim of
ineffective assistance of counsel, a movant must prove: (1)
that his counsel's performance was deficient in that it
fell below an objective standard of reasonableness; and (2)
that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 689-94. In other words, a
movant must show that his counsel's performance was
outside the broad range of what is considered reasonable
assistance and that this deficient performance led to an
unfair and unreliable conviction and sentence. United
States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir.
2001). The burden of proof is on the movant alleging
ineffective assistance. United States v. Chavez, 193
F.3d 375, 378 (5th Cir. 1999). If the movant fails to prove
one prong, it is not necessary to analyze the other. See
Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994)
(“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
Counsel's Advice During Plea Bargaining
have a Sixth Amendment right to counsel, a right that extends
to the plea-bargaining process.” Lafler v.
Cooper, 566 U.S. 156, 162 (2012) (citing Missouri v.
Frye, 566 U.S. 134, 132 (2012)). The two-part test
established in Strickland v. Washington applies;
accordingly, successful challenges to guilty pleas based on
ineffective assistance of counsel must establish that
counsel's representation fell below an objective standard
of reasonableness and that the defendant was prejudiced as a
result. Id. at 162-63 (citing Hill v.
Lockhart, 474 U.S. 52, 57 (1985)).
“[i]n the context of pleas a defendant must show the
outcome of the plea process would have been different with
competent advice.” Id. at 163. If a defendant
alleges that he would have accepted a plea but for the advice
of his counsel, then the defendant must show that there is a
reasonable probability that: (1) “the plea offer would
have been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
” (2) “the court would have accepted its terms,
” and (3) “the conviction or sentence, or both,
under the offer's terms would have been less severe than
under the judgment and sentence that in fact were
imposed.” Id. at 164.
Advice regarding Movant's sentencing exposure
Movant alleges that “Attorney Brady underestimated
[Movant's] sentencing exposure.” Mot. to Vacate 5.
Movant further avers that “but for the erroneous advise
[sic], it is reasonably probable that he would have accepted
the Government's plea offer of 25 years and waived his
righ[t] to trial.” Id. Specifically, in his
Memorandum in Support, Movant contends that his plea was not
voluntary and intelligent because Attorney Brady's
performance fell below an objective standard of
reasonableness and that, absent his counsel's
performance, Movant would have accepted a plea. Mem. in
Government concedes in its Response, Movant's eventual
sentence was greater than the plea offer provided by the
Government. See Resp. 7-8. Nonetheless, Movant has
failed to establish that his counsel's objectively
deficient performance led to Movant's rejection of the
guilty plea. Instead, the record suggests that Movant
received proper advice regarding the range of possible
sentences and chose to reject the plea offer.
December 1, 2014, the Court held a Frye Hearing.
See Resp. Ex. 21 (Mot. Hearing Tr.) at 28:17-37:25.
The Court explained that “[a] Frye hearing, basically,
is for the purpose of placing on the record the offer that
the government has extended in the event that there is any
interest on your part to enter a plea of guilty by virtue of
a plea agreement” and that the reason for the hearing
was, in part, that “defendants are entitled to know
what is on the table and to indicate on the record whether
they have been made aware of it and whether they accept it or
prefer to go to trial.” Id. at 28:22-29:8.
hearing, the Government's attorney stated on the record
that the offer to Movant was “an 11(c)(1)(C) offer on
Count 9 for 25 years.” Id. at 29:21-22.
Attorney Brady stated that he “communicated [the offer]
to Mr. Gray, and [Gray] remain[ed] adamant that [they] go to
trial.” Id. at 30:25-31:1. Additionally, at
the hearing, the Court noted that each defendant had, through
counsel, requested to be provided with a pre-plea PSR.
Id. at 32:21-22. The Court explained:
Basically, it's an unusual step, but it requires the
probation office to look at the charge, to become familiar
with the information through investigative reports that
pre-plea PSR has suggested to you, as communicated through
your counsel, that in the event that you were to go to trial
and found to be guilty, that under the guidelines, the court
would be asked to consider a sentence within a range of
lifetime imprisonment, and each one of you has been made
aware of that, I am sure.
Id. at 32:20-33:5. After the Court made clear that
the sentencing range included the possibility of life
imprisonment, Movant rejected the Government's offer.
Id. at 34:7.
Movant avers that his attorney “was ineffective for
misadvising Mr. Gray that if he went to trial the most he
would get [would be] a maximum sentence of 360 months under
the guideline.” Mem. in Support 9. He further argues
that his counsel did not properly inform him of the maximum
sentence. Id. However, Movant's assertion stands
in direct contrast to the Frye hearing.
the hearing, Movant recognized that he may face a sentencing
range that could include lifetime imprisonment and
nonetheless chose to have a jury trial. Thus, Movant's
assertion that he believed the maximum sentence would be 360
months lacks merit. For these reasons, the Court concludes
that Movant's counsel advised him of the potential
sentence range and that the counsel's performance was not
objectively deficient. Moreover, the Court ensured that
Movant understood his maximum possible sentence, and Movant
rejected the plea offer. Because the record makes clear that
Movant understood his potential sentence, Movant also cannot
establish that he was prejudiced by Attorney Brady's
alleged failure to communicate thoroughly about Movant's
sentencing exposure. Accordingly, the Court declines to find
that Attorney Brady's advice regarding Movant's
potential sentence constituted ineffective assistance of
Possibility that Movant could plead guilty and receive a
three-level downward adjustment to his sentence
Movant argues that Attorney Brady “failed to advise
[him] that he could openly plea[d] guilty to the indictment
without a plea agreement and still receive a 3-level
reduction for acceptance of responsibility.” Mot. to
Vacate 5. He further claims that “[t]here is a big
difference between being sentenced to a walking death
sentence . . .and the sentence of 300 months cap offer which
he could have achieved through a timely plea of
guilty.” Mem. in Support 7.
even if Attorney Brady did not discuss a possible three-level
adjustment for acceptance of responsibility, Movant cannot
show prejudice. When the Government placed its plea offer of
300 months' imprisonment on the record, Movant rejected
the offer. At sentencing, the Court calculated Movant's
total adjusted offense level as a 44.Resp. Ex. 25 (Sentencing Tr.)
at 7:23-25. In the event that Movant timely accepted
responsibility and the Government moved for the third-level
of a downward adjustment, Movant would have faced an offense
level of 41. The corresponding guidelines' range is 324
to 405 months. United States Sentencing Comm'n,
Sentencing Table (2014),
manual/2014/2014sentencingtable.pdf. Although the
corresponding range is lower than life imprisonment, the
bottom of the guidelines' range for an offense level of
41 corresponds to a sentence that is longer in length than
the sentence offered to Movant on the record. That is, 324
months is longer than 300 months. Movant elected to reject a
plea offer of 300 months. Therefore, Movant may not credibly
assert that he would have chosen to timely plead guilty in
order to receive an adjustment for acceptance of
responsibility and face a guidelines' range of 324 to 405
months. To the contrary, the record confirms that Movant
elected to go to trial notwithstanding the fact that he
therefore faced a longer sentence.
these reasons, Movant is unable to show that he faced
prejudice. Having determined Movant cannot establish
prejudice, it is unnecessary to consider whether Attorney
Brady's performance in counseling his client about
whether to plead guilty in light of a potential reduction for
acceptance of responsibility was objectively reasonable.
Movant cannot show prejudice; accordingly, he cannot
establish ineffective assistance of counsel based on this
Counsel's Advice During Pre-Trial Proceedings
Failure to advise Movant that he could request a bench
contends that “Attorney Brady could have and should
have advised Mr. Gray that he could proceed to a ‘bench
trial' on ‘stipulated facts.'” Mem. in
Support 10. According to Movant, if he had been able to
proceed with a bench trial, he may have retained eligibility
for a downward sentencing adjustment based on acceptance of
Court previously discussed in more detail, Movant cannot show
that any possible three-level downward adjustment for
acceptance of responsibility would have impacted his eventual
sentence. Specifically, even if Movant received a downward
adjustment, the guideline range for his total offense level
would have nonetheless remained life imprisonment.
Federal Rule of Criminal Procedure 23 provides: “If the
defendant is entitled to a jury trial, the trial must be by
jury unless: (1) the defendant waives a jury trial in
writing; (2) the government consents; and (3) the court
approves.” As the Government discusses in its Response,
Movant cannot establish that the Government and the Court
would both agree to a bench trial. See Resp. 12.
Without the ability to demonstrate that the requirements of
Rule 23 would have been met if Defendant requested a bench
trial, Defendant cannot prove that he was prejudiced by his
counsel's alleged failure to advise Movant to proceed
with a nonjury trial.
Movant cannot establish that the requirements of Rule 23
would have been satisfied had he sought a nonjury trial.
Additionally, Movant's guideline sentencing range would
have remained the same even if Movant was able to achieve a
three-level reduction for acceptance of responsibility. Thus,
Movant cannot show that he faced prejudice as a result of
counsel's allegedly deficient advice. Accordingly, the
Court need not analyze the Strickland performance
prong, as Movant cannot establish ineffective assistance of
counsel based on the alleged lack of advice to proceed with a
Failure to object ...