IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

VERONA NIKITA CLARKE, §

§

Petitioner, §

§

VS. § NO. 4:03-CR-298-A

§ (NO. 4:05-CV-283-A)

UNITED STATES OF AMERICA, §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of Verona Nikita Clarke

to vacate, set aside, or correct sentence pursuant to 28 U.S.C.

§ 2255. The court, having considered the motion, the record,

including the record in No. 4:03-CR-298-A, and applicable

authorities, finds that the motion should be summarily denied and

that United States of America need not respond. See Rule 4(b) of

the Rules Governing Section 2255 Proceedings for the United

States District Courts, 28 U.S.C. foll. § 2255.

I.

History

On November 5, 2003, petitioner was named in a two-count

indictment charging her in count 1 with bank robbery, in

violation of 18 U.S.C. § 2113(a), and in count 2 with a separate

bank robbery, in violation of 18 U.S.C. § 2113(a). On January 9,

2004, petitioner pleaded guilty to count 1 of the indictment. On

April 30, 2004, she was sentenced to serve a term of imprisonment

of 120 months, to be followed by a three-year term of supervised

release, and ordered to pay restitution in the amount of

 

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$29,639.50 and a special assessment of $100.00. Count 2 of the

indictment was dismissed on motion of the government. Petitioner

did not appeal.

II.

Grounds of the Motion

Petitioner sets forth three grounds in support of her

motion. First, she was denied effective assistance of counsel. 

Second, her constitutional rights were violated. And, third, she

was the victim of prosecutorial misconduct.

III.

Standard of Review

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 his 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 his 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,

 

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1Although 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.

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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, petitioner has

not made any showing of cause.1

IV.

Grounds Barred

The second and third grounds of the motion are not entirely

clear but are, in any event, barred. To the extent that the

issues should have been raised on direct appeal, they cannot be

pursued here. Davis, 417 U.S. 345. They have no merit in any

event.

Petitioner appears to argue that her sentence is somehow

unconstitutional in light of Blakely v. Washington, 124 S. Ct.

2531 (2004), because the court found facts that were not alleged

in the indictment or were not presented to a jury. Petitioner

was well aware of the sentence she faced as a result of her

conduct. See Pet'r Br. at 7. Both the plea agreement and

factual resume informed her that she faced a term of imprisonment

of up to twenty years. As petitioner was sentenced within the

statutory maximum, there is no Apprendi issue. See Apprendi v.

New Jersey, 530 U.S. 466 (2000). Nor is petitioner entitled to

 

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any relief under Blakely or United States v. Booker, 125 S. Ct.

738 (2005). See U.S. v. Mares, 2005 WL 503715 (5th Cir. 2005).

V.

Ineffective Assistance of Counsel

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.), 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). Here, the record is clearly adequate to

 

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2Petitioner never really says what her complaint is. 

Rather, she quotes from cases stating general propositions about

effective assistance. She talks about "discovery" and the lack

of investigation, but never says what information would have been

gained that would have affected the outcome of the proceeding. 

The court notes that petitioner was sentenced at the low end of

her guideline range, despite her extensive criminal history. Her

counsel was not ineffective.

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fairly dispose of the claim of ineffective assistance. Hence,

further inquiry is unnecessary. Baldwin v. Maggio, 704 F.2d

1325, 1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984).

Petitioner's complaints regarding her counsel are entirely

conclusory and are insufficient to support a claim of ineffective

assistance of counsel.2 Miller v. Johnson, 200 F.3d 274, 282

(5th Cir. 2000). Moreover, petitioner has not shown that she was

deprived of any substantive or procedural right, much less that

the result of the proceeding was fundamentally unfair or

unreliable. Williams, 529 U.S. at 392-93.

VI.

Order

For the reasons discussed herein,

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

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

SIGNED May _____, 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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