IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

KAREN LEWIS, §

 §

Petitioner, §

§

VS. § NO. 4:03-CR-201-A

§ (NO. 4:05-CV-793-A)

UNITED STATES OF AMERICA, §

 §

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on to be considered the motion of Karen Lewis ("Lewis"

or "petitioner") under 28 U.S.C. § 2255 to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255. Having reviewed

the motion, the record, and applicable authorities, the court

concludes that the motion should be denied.

I.

Background

On July 8, 2003, Lewis was charged, in a one-count

indictment, with money laundering in violation of 18 U.S.C. §

1956(a)(3). On October 7, 2003, a jury found her guilty. The

probation officer calculated Lewis's guideline-imprisonment range

to be 121 to 151 months. On January 9, 2004, this court

sentenced Lewis to a term of imprisonment substantially below

that range, namely 78 months. On appeal, the United States Court

of Appeals for the Fifth Circuit affirmed. See United States v.

Lewis, 108 Fed. Appx. 983 (5th Cir. 2004). Subsequently, the

Supreme Court granted Lewis's petition for writ of certiorari,

vacated the judgment of the Fifth Circuit, and remanded the case

 

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2

to the Fifth Circuit for further consideration in light of United

States v. Booker, 543 U.S. 220 (2005). On remand, the Fifth

Circuit reinstated its original judgment affirming Lewis's

conviction and sentence. United States v. Lewis, 412 F.3d 614

(5th Cir. 2005). 

II.

Grounds of Motion

Lewis asserts six grounds for relief. Four of these are

premised on ineffective assistance of counsel and specifically

include allegations that counsel purportedly failed: (1) to

object to the constitutionality of the mandatory sentencing

guidelines; (2) to make proper objections to the pre-sentence

report; (3) to offer the polygraph examinations for sentencing

purposes; and (4) to file a motion under section 5K2.0 of the

United States Sentencing Commission, Guidelines Manual, for

downward departure due to Lewis's suffering from terminal Lupus. 

As to the fifth and six grounds for relief, Lewis further urges

that (5) she should have been sentenced under the discretionary

sentencing established by Booker and that (6) she was denied her

Sixth Amendment right to have the jury determine the facts

necessary for finding the existence of a $500,000.00 moneylaundering transaction that, in turn, resulted in the enhancement

of her sentence. See Pet'r's Mem. in Support of Pet. for Writ of

Habeas Corpus at 5-7. 

III.

Standard of Review

 

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1

Although constitutionally ineffective assistance of counsel is

"cause," McCleskey v. Zant, 499 U.S. 467, 494 (1991), as discussed

infra, petitioner has failed to demonstrate that she received such

ineffective assistance.

3

After conviction and exhaustion, or waiver, of any right to

appeal, courts are entitled to presume that a defendant stands

fairly and finally convicted. United States v. Frady, 456 U.S.

152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). A defendant

can challenge her conviction or sentence after it is presumed

final only on issues of constitutional or jurisdictional

magnitude, and may not raise an issue for the first time on

collateral review without showing both "cause" for her procedural

default and "actual prejudice" resulting from the errors. Shaid,

937 F.2d at 232. Section 2255 does not offer recourse to all who

suffer trial errors. It is reserved for transgressions of

constitutional rights and other narrow injuries that could not

have been raised on direct appeal and would, if condoned, result

in a complete miscarriage of justice. United States v. Capua,

656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other

words, a writ of habeas corpus will not be allowed to do service

for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974);

Sunal v. Large, 332 U.S. 174, 178 (1947). Here, Lewis has not

made any showing of cause.1

IV.

Ineffective Assistance of Counsel

Because four of Lewis's grounds for relief allege

 

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ineffective assistance of counsel, the court addresses those

first. In order to prevail on an ineffective assistance of

counsel ground, petitioner must show (1) that her counsel's

performance fell below an objective standard of reasonableness

and (2) that there is a reasonable probability that, but for her

counsel's unprofessional errors, the result of the proceedings

would have been different. Strickland v. Washington, 466 U.S.

668, 687 (1984). Both prongs of the Strickland test must be met

to demonstrate ineffective assistance. Id. at 697. To establish

the first prong, petitioner must overcome a strong presumption

that her counsel's conduct falls within the wide range of

reasonable professional assistance. Id. at 689. It is not

enough to show that some, or even most, defense lawyers would

have handled the case differently. Green v. Lynaugh, 868 F.2d

176, 178 (5th Cir. 1989), cert. denied, 493 U.S. 831 (1989). For

the second prong, petitioner must show that her counsel’s errors

were so serious as to deprive her of a fair trial, a trial whose

result is reliable. Strickland, 466 U.S. at 687. If the

petitioner cannot show that the ineffectiveness of counsel

deprived her of a substantive or procedural right to which the

law entitles her, she must show that the result of the proceeding

was fundamentally unfair or unreliable. Williams v. Taylor, 529

U.S. 362, 392-93 (2000). 

A. Constitutionality of Mandatory Sentencing Guidelines 

Assuming, without deciding, that Lewis's counsel failed to

object to the constitutionality of the mandatory sentencing

 

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2

Notably, the government has submitted some evidence that

Lewis's counsel did make such objections. See Resp't's App. in Supp.

of Resp. at 8-9. 

3

According to the government, Lewis also urges that her counsel

should have objected based on her minimal role in the offense. See

Resp't's Resp. in Opp'n to Mot. under § 2255 at 5-6. After a

thorough review of Lewis's motion and brief in support, the court is

unconvinced that Lewis makes this argument. In the event, however,

5

guidelines,2 the court concurs with the government that whether

counsel's performance was unreasonable in this regard is based

upon the law as it existed at the time of trial. See, e.g.,

Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998) (citations

omitted). The Supreme Court's opinions of Blakely v. Washington,

542 U.S. 296 (2004) and Booker, 543 U.S. 220, upon which

petitioner heavily relies, were both decided well after Lewis was

sentenced by this court. Moreover, even assuming there was error

in this regard, Lewis has failed to make the requisite showing of

a reasonable probability that, but for such error, the result of

the proceedings would have been different. See Strickland, 466

U.S. at 687. 

B. Objections to Pre-Sentence Report 

The court likewise finds no merit in Lewis's contention that

her counsel failed to make proper objections to the pre-sentence

report. The sole complaint in this regard appears to be

counsel's purported failure to object, under Apprendi v. New

Jersey, 530 U.S. 466 (2000) or Ring v. Arizona, 536 U.S. 584

(2002), to the court, as opposed to the jury, finding that Lewis

was a participant in a money-laundering transaction involving

$500,000.00 or more.3 See Pet'r's Mem. in Support of Pet. for

 

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that she does, Lewis has failed to show that the outcome would have

been different had her counsel made such an objection. The court, on

its own motion, found that Lewis was a minimal participant and

reduced her total offense level on that basis. See Sentencing Tr. at

29-30. 

6

Writ of Habeas Corpus at 19-29. This assertion lacks merit. 

In Apprendi, the Supreme Court held that, other than the

fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury and proved beyond a reasonable doubt. 

Apprendi, 530 U.S. at 474-497. The Supreme Court applied

Apprendi in Ring to hold that defendants are entitled to a jury

determination of factors increasing their maximum punishment from

life to death. Ring, 536 U.S. at 609. Here, the court sentenced

Lewis to a term far below the statutory maximum. At the time of

Lewis's sentencing, the law of the Fifth Circuit was that neither

Apprendi nor Ring applied under these circumstances. See United

States v. Floyd, 343 F.3d 363, 372 (5th Cir. 2003), cert. denied,

541 U.S. 1054 (2004); United States v. Cantu, 61 Fed. Appx. 917,

cert. denied, 540 U.S. 861 (2003). Consequently, the court

cannot see how Lewis's counsel was unreasonable in failing to

make an arguably baseless objection under Apprendi or Ring. See

Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) ("Failure to

raise meritless objections is not ineffective lawyering; it is

the very opposite.") Further, Lewis has not shown a reasonable

probability that the court would have sustained such an

objection. Indeed, the court very likely would have overruled

any such objection in light of the existing Fifth-Circuit

 

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4

Notably, the court's holding in this regard was upheld on

appeal. See United States v. Lewis, 108 Fed. Appx. 983 (5th Cir.

2004).

7

precedent. 

C. Polygraph Examinations

 Lewis's criticism of her counsel's failure to offer the

results of polygraph examinations for sentencing purposes is

equally without merit. The court had already determined during

the trial phase that this evidence had no probative value and was

to be excluded.4 Moreover, the only authority Lewis offers on

this point is United States v. Posado, 57 F.3d 428, 434 (5th Cir.

1995), which, in turn, merely holds that polygraph examinations

are no longer per se inadmissible. Consequently, Posado is

hardly authority for rendering a counsel's choice not to offer

polygraph examinations unreasonable, perhaps especially when the

court had already ruled that such evidence was inadmissible. 

D. Motion for Downward Departure

Lewis's complaint regarding her counsel's purported failure

to file a motion for downward departure based upon Lewis's

illness is perplexing. Her counsel did file such a motion. 

Though the motion was untimely, the court nonetheless considered

it and Lewis's counsel argued it at the sentencing hearing in

some detail. See Sentencing Tr. at 16, and 21-23.

V.

Remaining Grounds Based on Booker and the Sixth Amendment

Finally, Lewis urges that she should have been sentenced

under the discretionary sentencing mandated by Booker and that

 

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her Sixth-Amendment rights were violated when the court, and not

the jury, determined the facts supporting the enhancement of her

sentence based on a $500,000.00 money-laundering transaction.

Both of these remaining grounds are, in essence, an assertion

that Booker requires the court to vacate, set aside or correct

Lewis's sentence. The Fifth Circuit has, however, already

decided this issue adverse to Lewis: "Accordingly, we conclude

that nothing in the Supreme Court's Booker decision requires us

to change our prior affirmance in this case." See United States

v. Lewis, 412 F.3d 614, 616 (5th Cir. 2005). Section 2255 is

simply not a vehicle for bringing a "second direct appeal" as

Lewis attempts to do here. See United States v. McCollom, 664

F.2d 56, 59 (5th Cir. 1981), cert. denied, 456 U.S. 934 (1982).

IV.

Order

For the reasons discussed herein,

The court ORDERS that petitioner's motion to vacate, set 

aside or correct sentence be, and is hereby, denied.

SIGNED March 9, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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