Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wimberly v. United States

United States District Court, E.D. Texas, Beaumont Division

September 25, 2019

JEREMY JAMES WIMBERLY
v.
UNITED STATES OF AMERICA

          ORDER OF DISMISSAL

          RON CLARK, SENIOR DISTRICT JUDGE

         Movant Jeremy James Wimberly, a federal prisoner, filed this motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.

         Factual Background and Prior Proceedings

         On October 23, 2013, officers with the Orange County Sheriff’s Department attempted to stop a vehicle for traffic violations. The vehicle was being driven by movant and he had a female passenger in the car, Jessica Smith. Movant did not stop for the officers and, instead, eluded the officers at high speeds for more than twenty miles. During the chase, the pursuing officers observed a gun and drugs being thrown from the vehicle. Both the gun and drugs were later recovered. At the end of the chase, movant abandoned his car and fled on foot into the woods. Movant was apprehended a short distance from the car. Movant was found with money which had been supplied by the Orange County Sheriff’s Department and was used by a confidential informant, Anthony Elyas, to purchase drugs from movant.

         On October 25, 2013, a criminal complaint was filed in the Eastern District of Texas, charging movant with possession with intent to distribute methamphetamine and felon in possession of a firearm. On November 6, 2013, a Grand Jury for the Eastern District of Texas returned a two count indictment against movant, charging him with possession with intent to distribute 500 grams or more of methamphetamine and felon in possession of a firearm. On March 5, 2014, a first superseding indictment was returned charging movant with possession with intent to distribute 500 grams or more of methamphetamine “actual” possession, brandishing a firearm in relation to a drug trafficking offense, and felon in possession of a firearm. On May 14, 2014, a second superseding indictment was returned which included the same charges against movant but added movant and co-defendant Christopher Michael Kelly in a fourth count, charging them both with conspiracy to possess with intent to distribute 500 grams or more of methamphetamine and 50 grams or more of “actual” methamphetamine, in violation of 21 U.S.C. § 846. On July 2, 2014, a third superseding indictment was returned with the same charges against both defendants listed in the second superseding indictment but changed the language in Count Two, the 924(c) charge, from “knowingly possess and brandish a firearm” to “knowing use and carry and brandish a firearm.”

         Movant’s co-defendant Kelly pleaded guilty to the charges against him and agreed to cooperate with the government during movant’s trial.

         The government filed a Notice and Information of Prior Convictions for the purpose of Increased Punishment pursuant to 21 U.S.C. § 851. Movant elected to plead not guilty to the charges and proceed to trial. On September 5, 2014, following a four day trial, the jury returned their verdict finding movant guilty on all four counts against him in the third superseding indictment.

         On February 17, 2015, movant was sentenced on Counts One and Four to the statutory mandatory life imprisonment with 10 years supervised release to follow and 120 months’ imprisonment with three years supervised release to follow as to Count Three, to run concurrent to Counts One and Four. Also, the court imposed a term of 84 months’ imprisonment with five years supervised release to follow as to Count Two, to run consecutively to Counts One, Three and Four.

         Movant filed a notice of appeal on February 17, 2015. However, movant later moved to dismiss the appeal. Movant’s appeal was dismissed on July 10, 2015. Movant filed this motion to vacate, set aside or correct sentence on June 5, 2016.

         The Motion to Vacate

         In his first three grounds for review, movant claims he was denied the effective assistance of counsel when counsel failed to move to suppress the testimony of the following witnesses: Anthony Elyas (Ground 1), Jessica Smith (Ground 2), and Sergeant T. Sorge (Ground 3). In his next two grounds, movant claims counsel provided ineffective assistance when counsel failed to suppress the following evidence: the Ruger 9mm pistol (Ground 4) and 564 grams of methamphetamine (Ground 5). In his next three grounds, movant claims counsel provided ineffective assistance when counsel failed to present the following exculpatory evidence: the police dash-cam video of the pursuit and failed to present the court reporter and his prior defense counsel as defense witnesses regarding impeachment of Jessica Smith (Ground 6), the Orange County dispatcher records of the pursuit and failed to call the dispatcher as a witness to impeach Sergeant Sorge’s testimony (Ground 7), and Jessica Smith’s written statement and video-taped interview conducted by Lt. Strause following her arrest (Ground 8). Next, movant claims counsel provided ineffective assistance when counsel failed to do the following: perfect a motion to compel the name of the person movant claims left fingerprints (Ground 9); perfect a motion to suppress a photograph of him taken from Facebook (Ground 10); and failed to move to file a motion to dismiss on grounds of the prosecution’s use of fabricated evidence and misleading evidence to the Grand Jury (Ground 11). Next, movant claims counsel provided ineffective assistance by failing to investigate the background of his co-defendant Christopher Kelly (Ground 12) and witness Jimmy Samual (Ground 20) and failing to move to suppress certain testimony of each. Movant also claims counsel was ineffective for failing to communicate plea offers (Ground 13) and his erroneous advice caused movant to reject a plea offer (Ground 14). Movant next claims counsel was ineffective for failing to file a Motion for Preliminary Hearing or a Bill of Particulars (Ground 15). Movant claims he was denied due process when the government failed to provide the defense with pretrial discovery within fourteen days of being formally charged (Ground 16) and failed to disclose evidence favorable to the defense (Ground 17). Movant also contends his conviction under 18 U.S.C. § 924(c) and his enhancement for “Agg Flight” are improper in light of the recent Supreme Court decision in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015) (Ground 18). Finally, movant claims he was denied the effective assistance of counsel when counsel failed to investigate and challenge the following: the probable cause used to gain the warrant for the pin-hole video recording of September 17, 2013; the probable cause used to gain the audio recording of September 16, 2013; the probable cause of the traffic stop in April, 2013; and the warrant used for the button-hole video recording of October 23, 2013 (Ground 19).[1]

         The Response

         The respondent was ordered to show cause why the relief sought should not be granted. In response, the respondent contends movant’s grounds for review are without merit. Accordingly, the respondent requests the court deny the motion to vacate in its entirety.

         Standard of Review

         A federal prisoner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on four separate grounds: The sentence was imposed in violation of the constitution or laws of the United States; the court was without jurisdiction to impose the sentence; the sentence exceeds the statutory maximum sentence; and the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255; see United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 112 S.Ct. 2319 (1992).

         “Challenging a conviction and sentence with a section 2255 motion is ‘fundamentally different from a direct appeal.’” United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (quoting United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992)). “After conviction and exhaustion or waiver of any right to appeal, ‘we are entitled to presume that [the defendant] stands fairly and finally convicted.’” United States v. Shaid, 937 F.2d 228, 231-232 (5th Cir. 1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992) (en banc decision) (quoting United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). “Thus, on collateral attack, a defendant is limited to alleging errors of a ‘constitutional or jurisdictional magnitude.’” Samuels, 59 F.3d at 528 (quoting Shaid, 937 F.2d at 232). Relief under § 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, if condoned, would result in a complete miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Nonconstitutional claims that could have been raised on direct appeal may not be asserted in a 28 U.S.C. § 2255 proceeding. Id.

         Analysis

         I. Ineffective Assistance of Counsel

         Movant filed this motion to vacate asserting a variety of claims of ineffective assistance of counsel. In his first three grounds for review, movant claims he was denied the effective assistance of counsel when counsel failed to move to suppress the testimony of the following witnesses: Anthony Elyas (Ground 1), Jessica Smith (Ground 2), and Sergeant T. Sorge (Ground 3). In his next two grounds, movant claims counsel provided ineffective assistance when counsel failed to suppress the following evidence: the Ruger 9mm pistol (Ground 4) and 564 grams of methamphetamine (Ground 5). In his next three grounds, movant claims counsel provided ineffective assistance when counsel failed to present the following exculpatory evidence: the police dash-cam video of the pursuit and failed to present the court reporter and his prior defense counsel as defense witnesses regarding impeachment of Jessica Smith (Ground 6), the Orange County dispatcher records of the pursuit and failed to call the dispatcher as a witness to impeach Sergeant Sorge’s testimony (Ground 7), and Jessica Smith’s written statement and video-taped interview conducted by Lt. Strause following her arrest (Ground 8). Next, movant claims counsel provided ineffective assistance when counsel failed to do the following: perfect a motion to compel the name of the person movant claims left fingerprints (Ground 9); perfect a motion to suppress a photograph of him taken from Facebook (Ground 10); and failed to move to file a motion to dismiss on grounds of the prosecution’s use of fabricated evidence and misleading evidence to the Grand Jury (Ground 11). Next, movant claims counsel provided ineffective assistance by failing to investigate the background of his co-defendant Christopher Kelly (Ground 12) and witness Jimmy Samual (Ground 20) and failing to move to suppress certain testimony of each. Movant also claims counsel was ineffective for failing to communicate plea offers (Ground 13) and his erroneous advice caused movant to reject a plea offer (Ground 14). Movant next claims counsel was ineffective for failing to file a Motion for Preliminary Hearing or a Bill of Particulars (Ground 15). Finally, movant claims he was denied the effective assistance of counsel when counsel failed to investigate and challenge the following: the probable cause used to gain the warrant for the pin-hole video recording of September 17, 2013; the probable cause used to gain the audio recording of September 16, 2013; the probable cause of the traffic stop in April, 2013; and the warrant used for the button-hole video recording of October 23, 2013 (Ground 19).

         A. Substantive Law

         The Sixth Amendment of the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. A defendant’s Sixth Amendment right to counsel attaches at all critical stages in the proceedings “after the initiation of formal charges.” Moran v. Burbine, 475 U.S. 412, 431 (1986). Plea negotiations are a critical stage in criminal proceedings for the purposes of the Sixth Amendment right to effective assistance of counsel. See Padilla v. Kentucky, 559 U.S. 356, 373-74 (2010).

         The Supreme Court has addressed the issue of what a petitioner must prove to demonstrate an actual ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In order to show that counsel was ineffective a petitioner must demonstrate the following:

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 or death sentence resulted in a breakdown of the adversarial process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to demonstrate the first prong of this test, a petitioner must demonstrate that “‘counsel’s representation fell below an objective standard of reasonableness, ’ with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance.” Andrews v. Collins, 21 F.3d 612, 621 (5th Cir. 1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). In order to demonstrate the second prong of the above-stated test, a petitioner must demonstrate that counsel’s deficient performance so prejudiced the defense that petitioner was denied a fair and reliable trial. See Lockhart v. Fretwell, 506 U.S. 364, 368-71 (1993). A reviewing court “must strongly presume that trial counsel rendered adequate assistance and that the challenged conduct was the product of a reasoned trial strategy.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992).

         B.Applica ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.