IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA §

 §

VS. § CRIMINAL NO.4:04-CR-138-Y(3)

 § (CIVIL NO.4:05-CV-662-Y)

LAVORICE DONDRELL CUNNINGHAM §

ORDER RESOLVING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255

Now pending before the Court is defendant Lavorice Dondrell

Cunningham’s motion seeking relief under 28 U.S.C. § 2255, along

with a memorandum of law in support. The government filed a

response to the motion, along with an appendix, including an

affidavit of Warren St. John, a copy of the plea agreement, and a

copy of the notice of right to appeal. After careful consideration

and review of defendant Cunningham’s motion under § 2255, the

government's response, the applicable law, and after an examination

of the file and record of this case, the Court concludes that the

motion must be denied for the reasons stated by the government and

as set forth here.

Cunningham seeks relief under 28 U.S.C. § 2255 on three

grounds: (1) the government breached the plea agreement; (2) the

government engaged in prosecutorial misconduct; and (3) counsel was

ineffective in: (a) misrepresenting the consequences of the plea

agreement as to the amount of drugs for which he would be held

accountable; and in failing to (b) research the guidelines; (c)

conduct a pre-trial investigation and file any pre-trial motions;

(d) move to dismiss the indictment; (f) obtain the grand jury
1

The plea agreement signed by Cunningham includes a waiver

of his rights to contest his conviction and sentence “in any

collateral proceeding, including rights under 28 U.S.C. § 2241

and 28 U.S.C. § 2255.” (Plea Agreement at 4, ¶ 11.) As the

government did not assert that the waiver barred any of

Cunningham’s claims, the Court does not reach the effect of such

waiver in ruling on Cunningham’s § 2255 motion. Cf. United States

v. Del Torro-Alejandro, 489 F.3d 721, 722 (5th Cir. 2007)(holding

that district court could enforce the terms of a waiver of right

to pursue collateral relief in dismissing a § 2255 motion sua

sponte prior to government answer, but acknowledging that if

government answers and fails to invoke such a waiver, it forgoes

such contractual right). 

2

United States v. Frady, 456 U.S. 152, 165 (1982). 

2

transcripts; (g) conduct a pre-trial investigation into the law and

the facts; (h) sufficiently object to inaccuracies in the PSR; (i)

contest the government’s breach of the plea agreement; and (j) file

a notice of appeal.

With regard to Cunningham’s first two grounds, that the

government breached the plea agreement and engaged in prosecutorial

misconduct, the Court concludes that such claim are procedurally

barred from this Court’s review under § 2255.1

 The Supreme Court

has emphasized repeatedly that a “collateral challenge may not do

service for an appeal.”2 As the Court of Appeals for the Fifth

Circuit has observed: 

After conviction and exhaustion or waiver of any right to

appeal, “we are entitled to presume that [the defendant]

stands fairly and finally convicted.” [Frady] at 164. A

defendant can challenge his conviction after it is

presumed final only on issues of constitutional or

jurisdictional magnitude, Hill v. United States, 368 U.S.

424, 428(1962), and may not raise an issue for the first

time on collateral review without showing both “cause”

for his procedural default, and “actual prejudice”
3

United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991),

cert. den’d, 502 U.S. 1076 (1992). 

4

Alternatively, grounds one and two are denied on their

merits for the reasons stated in the government’s response at

section II pages 3-5. 

3

resulting from the error. Frady, 456 U.S. at 168. This

cause and actual prejudice standard presents “a

significantly higher hurdle” than the “plain error”

standard that we apply on direct appeal. Id. at 166. We

apply this rigorous standard in order to ensure that

final judgments command respect and that their binding

effect does not last only until “the next in a series of

endless postconviction collateral attacks.” Id. at

165-66. A defendant must meet this cause and actual

prejudice test even when he alleges a fundamental

constitutional error.3

Cunningham has shown no reason for his failure to raise these

claims before this Court or through a direct appeal from this

Court’s imposition of sentence. Thus, he has not shown cause for

his procedural default, and his first and second claims are barred

from review in this collateral proceeding.4 

The now-familiar two-pronged standard for review of claims of

ineffective assistance of counsel was set forth by the Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984): 

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
5

Strickland, 466 U.S. at 687.

6

Id. at 690. 

7

Id. 

8

United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995);

see also King v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.), cert

den’d, 489 U.S. 1093 (1989).

9

Strickland, at 694 (general discussion at pp. 691-695).

4

sentence resulted from a breakdown in the adversary

process that renders the result unreliable.5 

The burden is upon the defendant to show that his counsel’s

representation fell below an objective standard of reasonableness

by identifying acts or omissions of counsel “that are alleged not

to have been the result of reasonable professional judgment.”6 A

district court then determines whether, “in light of all the

circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance.”7

 There is a

strong presumption that the performance of counsel “falls within

the wide range of reasonable professional assistance.”8 A defendant

must also affirmatively prove prejudice by showing that a

particular error of counsel actually had an adverse effect on the

defense, an adverse effect being shown, in turn, by demonstrating

a “reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been

different.”9

The Court has reviewed Cunningham’s claims of ineffective

assistance of counsel, and concludes that he has not shown that
10528 U.S. 470 (2000).

11Flores-Ortega, 528 U.S. at 480. 

5

counsel’s conduct was deficient, nor has he shown a reasonable

probability that the outcome of the proceedings would be different,

for the reasons stated in the government’s response at section III

pages 6-13. 

The Court addresses further Cunningham’s claim that counsel

was ineffective for failing to file a notice of appeal. In Roe v.

Flores-Ortega,10 the Supreme Court applied the Strickland

deficiency-and-prejudice test to the context of a claim of

ineffectiveness on the basis of an alleged failure to file a notice

of appeal. The deficiency inquiry involves a determination of

whether

[C]ounsel has a constitutionally imposed duty to consult

with the defendant about an appeal when there is reason

to think either (1) that a rational defendant would want

to appeal (for example, because there are nonfrivolous

grounds for appeal), or (2) that this particular

defendant reasonably demonstrated to counsel that he was

interested in appealing.11 

Cunningham waived his rights to a direct appeal except to challenge

“(i) a sentence exceeding the statutory maximum punishment, (ii) an

upward departure from the guideline range deemed applicable by the

district court, or (iii) an arithmetic error at sentencing, and (b)

a claim of ineffective assistance of counsel.” As none of the first

three grounds were available to Cunningham, and as Cunningham

declared in the pea agreement that he had “thoroughly reviewed all

legal and factual aspects of this case with his lawyer and [was]

fully satisfied with that lawyer’s legal representation,” there is
12Flores-Ortega, 528 U.S. at 484. 

13Id., 528 U.S. at 484 (“If the defendant cannot demonstrate

that, but for counsel’s deficient performance, he would have

appealed, counsel’s deficient performance has not deprived him of

anything, and he is not entitled to relief.”)

6

no reason to believe a rational defendant would want to appeal. 

But did Cunningham demonstrate that he was interested in

appealing? Although Cunningham makes the allegation that counsel

did not discuss the option of an appeal, and did not “completely

explain the purpose of the ‘Notice of Right to Appeal,’ he

acknowledges that counsel did explain his waiver of appellate

rights, and he acknowledges that he signed such notice of right to

appeal. Under the Flores-Ortega framework, Cunningham’s conclusory

allegations do not support a finding that counsel was deficient.

 Even assuming that Cunningham’s allegations are sufficient to

demonstrate that counsel was deficient, to show prejudice in such

circumstances, “a defendant must demonstrate that there is a

reasonable probability that, but for counsel’s deficient failure to

consult with him about an appeal, he would have timely appealed.”12

The Court, in Flores-Ortega, explained that counsel must “actually

cause the forfeiture of the appeal.”13 Although Cunningham argues

in an unsworn memorandum that counsel “failed to discuss” appeal

options, and “failed to completely explain the Notice of Right to

Appeal,” he does not otherwise state any facts to support this

allegation, or to show that he would have timely appealed.

Cunningham does not state that he asked counsel to appeal, and

counsel swore that Cunningham did not express a desire to appeal
14Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)(“This

Court has made clear that conclusory allegations of ineffective

assistance of counsel do not raise a constitutional issue in a

federal habeas proceeding”), citing Ross v. Estelle, 694 F.2d

1008, 1012 (5th Cir. 1983). 

7

and never instructed him to file an appeal. Cunningham, however,

did sign the Notice of Right to Appeal. In that document, he

acknowledged that, should he desire to appeal, his notice of appeal

had to be filed within ten days of the entry of judgment. In spite

of this record of Cunningham’s awareness of the time to appeal,

Cunningham makes no specific factual allegation that he attempted

to contact counsel or the Court, or that he took any other action

to pursue an appeal. He has provided nothing more than conclusory

allegations, which are not sufficient to make out a claim.14

Cunningham has not set forth facts to satisfy the applicable

prejudice standard. As such, his claim of ineffective assistance

for failure to file a notice of appeal fails. 

 For all of the above and foregoing reasons, Lavorice Dondrell

Cunningham’s motion for relief under 28 U.S.C. § 2255 [docket no.

389] is DENIED.

Cunningham’s motion to expedite a response [docket no. 399] is

DENIED as moot. 

SIGNED October 10, 2007.