(1969). However, defendant "need only understand the direct
consequence of the plea; he need not be made aware every
consequence that, absent a plea of guilty, would not otherwise
occur." United States v. Hernandez, 234 F.3d 252, 255 (5th Cir.
2000). "The consequences of a guilty plea, with respect to
sentencing, mean only that the defendant must know the maximum
prison term and fine for the offense charged." Barbee v. Ruth,
678 F.2d 634, 635 (5th Cir. 1982).

Stinnett maintains that his guilty plea was unknowing and
therefore unintelligent because he was not made aware that he
would receive a two-level firearm enhancement that was applied to
his sentence and that he would not receive an offense level
reduction for acceptance of responsibility. However, there is no
dispute that, prior to signing the plea agreement, Stinnett was
made aware of the maximum prison term and fine he was facing for
the offense charged. Therefore, the fact that Stinnett was
unaware that the firearm enhancement would be added to his
offense level or that he would not receive acceptance of
responsibility does not render his plea unknowing or
unintelligent. Barbee, 678 F.2d at 635. Further, the fact that
Stinnett's trial counsel did not object as to those matters does
not constitute ineffective assistance because such an objection
would have been frivolous. Koch v. Puckett, 907 F.2d 524, 527

(5th Cir. 1990).


thus fails to show how counsel's conduct was ineffective in not
raising such argument.
VI.
ORDER
For the reasons discussed above,
The court ORDERS that Stinnett's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and

is hereby, denied.

SIGNED August 16, 2007.

nited States Distri



reasonable probability that, but for his counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This
standard applies regardless of whether movant plead guilty or not
guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Both prongs
of the Strickland test must be met to demonstrate ineffective
assistance. Id. at 697. Judicial scrutiny of this type of claim
must be highly deferential and the movant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance. Id. at 689.
Further, "[a] court need not address both components of an
ineffective assistance of counsel claim if the movant makes an

insufficient showing on one." United States v. Stewart, 207 F.3d

750, 751 (2000). The test for ineffective assistance of counsel
is the same for both trial and appellate counsel. Hamilton v.
McCotter, 772 F.2d 171, 182 (5th Cir. 1985). Here, the record is
clearly adequate to fairly dispose of the claim of ineffective
assistance. Hence, further inquiry is unnecessary. Baldwin v.
Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983).
B. Purported Ineffective Assistance of Trial Counsel

1. Guilty Plea

"A guilty plea will be upheld on habeas review if entered
into knowingly, voluntarily, and intelligently." Montoya v.
Johnson, 226 F.3d 399, 405 (5th Cir. 2000). This requires that
defendant have "a full understanding of what the plea connotes

and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244



2. Presentence report

Stinnett argues that his trial counsel was ineffective in
failing to object to "anything in the PSR such as: (a) drug
amount, (b) the 3-level enhancement for [his] lab causing a
substantial risk of harm to human life and the environment, (c)
the 2-level gun enhancement, and (d) the loss of [his] acceptance
of responsibility . ... " Mot. at 5(a). He contends that
because of counsel's failure, the alleged errors raised on appeal
were reviewed only for plain error. However, Stinnett fails to
show a legitimate basis for any of the objections counsel failed
to raise, thus, his failure to do so does not constitute

ineffective assistance. See Clark v. Collins, 19 F.3d 959, 966

(5th Cir. 1994) ("[f]ailure to raise meritless objections is not
ineffective lawyering; it is the very opposite").

3. Right to confrontation

In United States v. Navarro, 169 F.3d 229 (5th Cir. 1999),

the Fifth Circuit clearly stated that "there is no Confrontation
Clause right at sentencing. . . ." Id. at 236. Thus, Stinnett's
claim that his right to confront witnesses was violated when his
counsel failed to move for an evidentiary hearing at sentencing,
is without merit.
C. Purported Ineffective Assistance of Counsel on Appeal

1. Fifth Amendment

Stinnett appears to argue in his objections that the

doctrine of constitutional avoidance should have been brought up

by his appellate counsel. However, he fails to show how such an



U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FILED

IN THE UNITED STATES DISTRICY COUR’
NORTHERN DISTRICT OF TEXAS

5 nn
FORT WORTH DIVISION AUG 1 6 2007

CLERK, U.S. DISTRICT COURT
BOBBY STINNETT, § By
§ Deputy
Movant, §
§
§
vs. § NO. 4:06-CV-772-A
§ (No. 4:03-CR-336-A) ~
UNITED STATES OF AMERICA §
§
Respondent. §
MEMORANDUM OPINION
and
ORDER

Came on to be considered the motion of Bobby Stinnett
("Stinnett") under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence. Having reviewed the motion, the government's
response, the record, and applicable legal authorities, the court
concludes that the motion should be denied.

I.
Background

On December 17, 2003, Stinnett was named in a one-count
indictment charging him with conspiracy to manufacture and
distribute methamphetamine, in violation of 21 U.S.C. §§ 846,
841(a) (1), and 841(b) (1) (B). Stinnett plead guilty to the charge
on March 19, 2004, and on July 9, 2004, he was sentenced to a
term of imprisonment of 135 months to be followed by a term of
supervised release of four years. The Fifth Circuit Court of
Appeals affirmed the sentence on June 20, 2005. Stinnett timely
submitted his petition for writ of habeas corpus pursuant to 28

U.S.C. § 2255 on November 1, 2006.



argument has merit. Further, Stinnett contends that his
appellate counsel erred in failing to assert a Fifth Amendment
challenge under Blakely. Stinnett's counsel did assert such
challenge and the fact that it was unsuccessful does not mean
that counsel's assistance was deficient. See Youngblodd v.
Maggio, 696 F.2d 407 (5th Cir. 1983).

2. Petition for rehearing

Stinnett claims that his counsel was ineffective in not
petitioning for a rehearing on the Fifth Circuit's holding that
he had not met the third prong of the plain error test. However,
Stinnett is only entitled to counsel on an appeal as of right.
Accordingly, because a motion for rehearing is not an appeal as
of right, his counsel's assistance on such motion could not have
deprived him of any constitutional right. See Wainwright v.

Torna, 455 U.S. 586, 588 (1982). Regardless, Stinnett cannot

show that his attorney's conduct was prejudicial because he has
not shown any ground on which a rehearing may have been granted.

3. Right to confrontation

Finally, Stinnett argues that his appellate counsel's
assistance was ineffective and cites counsel's raising of a
confrontation clause issue as proof of such ineffectiveness.
Stinnett maintains that counsel raised a frivolous issue on
appeal, while failing to assert a "viable meritorious argument
[that] does exist." Stinnett's Objs. 13. However, Stinnett does

not state what the supposed viable argument would have been, and



Ir.
Grounds of the Motion

Stinnett complains of his trial attorney in his first
ground. He says that he is complaining of his trial attorney
based on the attorney's failure to challenge the indictment for
its deficiency. However, the wording of the complaint suggests
that his actual complaint is that he would not have pleaded
guilty if he had known that he was going to be assessed a two-
level gun enhancement and was going to be denied acceptance of
responsibility and that his attorney was ineffective for failing
to warn him of those facts. Next he complains that his trial
attorney was ineffective because of the attorney's failure to
object to certain things in the presentence report. Finally, as
to his trial attorney, he complains that the attorney failed to
move for an evidentiary hearing either before or at sentencing to
determine the validity of sentencing enhancements, with the
result that his right to confrontation was violated.

In the second ground of his motion, Stinnett claims his
appellate attorney was ineffective. He first asserts that his
appellate attorney should have presented a Fifth Amendment

challenge based on Blakely v. Washington, 542 U.S. 296 (2004).

Next he complains that his appellate attorney should have
petitioned for a rehearing, apparently again asserting a Blakely
error. Finally, he seems to be complaining of his appellate
attorney's failure to present a "viable challenge on appeal" to

the alleged violation of his right of confrontation.


TItl.
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 on issues of constitutional or jurisdictional magnitude
only, 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,
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).

Iv.
Analysis
A. Legal Standards
To prevail on an ineffective assistance of counsel claim,
movant must show (1) that his counsel's performance fell below an

objective standard of reasonableness and (2) that there is a