IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

COREY COYETT MITCHELL, §

§

Petitioner, §

§

VS. § NO. 4:01-CR-185-A

§ (NO. 4:05-CV-407-A)

UNITED STATES OF AMERICA, §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of Corey Coyett

Mitchell 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. 4:01-CR-185-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 14, 2001, petitioner and a co-defendant were

named in a two-count indictment and, on March 13, 2002, in a sixcount superseding indictment. Petitioner was charged in the

superseding indictment in Count Four with robbery, in violation

of 18 U.S.C. § 2113(a), in Count Five with using and carrying a

firearm in relation to the commission of a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A)(I), and in Count Six with

 

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knowingly brandishing a firearm during and in relation to the

commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii). On March 28, 2003, petitioner pleaded guilty

to Counts Four and Five of the superseding indictment. On June

27, 2003, petitioner was sentenced to a term of imprisonment of

108 months on Count Four of the superseding indictment and a term

of imprisonment of 84 months on Count Five of the superseding

indictment, the sentences imposed to run consecutive to each

other, to be followed by a three-year term of supervised release

as to Count Four and a five-year term of supervised release as to

Count Five of the superseding indictment, the terms of supervised

release to run concurrently. Petitioner was also ordered to pay

restitution in the amount of $97,403.66 and a $200.00 special

assessment. The original indictment and Count Six of the

superseding indictment were dismissed as to petitioner on motion

of the government. Petitioner appealed and the United States

Court of Appeals for the Fifth Circuit affirmed the judgment and

sentence. United States v. Mitchell, 366 F.3d 376 (5th Cir.

2004). His petition for writ of certiorari was denied. Mitchell

v. United States, 125 S. Ct. 110 (2004).

II.

Grounds of the Motion

Petitioner urges two grounds in support of his motion. 

First, he contends that he was denied effective assistance of

counsel. And, second, he urges that he was subject to an

 

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Although constitutionally ineffective assistance of counsel is

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

(continued...)

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unlawful sentencing procedure that violated his Sixth Amendment

right to a trial by jury.

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,

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

 

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(...continued)

infra, petitioner has failed to demonstrate that he received such

ineffective assistance.

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IV.

Ground Barred

To the extent that petitioner's second ground seeks to

attack the six-level increase he received because one of the

robbery victims sustained a permanent bodily injury, such claim

was raised on direct appeal and cannot be pursued here. Moore v.

United States, 598 F.2d 439, 441 (5th Cir. 1979). To the extent

that any other argument in support of the ground should have been

raised, petitioner has not shown cause and prejudice as required. 

Shaid, 937 F.2d at 232. The ground has no merit in any event.

Petitioner's second ground is devoted to an argument that

his sentence is unconstitutional in light of Blakely v.

Washington, 124 S. Ct. 2531 (2004), because the court found facts

that were not alleged in the indictment. Petitioner was well

aware of the sentence he faced as a result of his conduct. Both

the plea agreement and factual résumé informed him that he faced

a term of imprisonment of not more than twenty years as to Count

Four and a term of imprisonment of not less than five years or

more than life as to Count Five of the superseding indictment. 

Appeal R. at 74 & 81. 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

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

 

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738 (2005). See United States v. Mares, 402 F.3d 511, 519-21

(5th Cir. 2005).

V.

Ineffective Assistance of Counsel

In order to prevail on an ineffective assistance of counsel

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

fell below an objective standard of reasonableness and (2) that

there is a 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). 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 his 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 his counsel’s errors were

so serious as to “deprive him 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 him of a substantive or procedural right to which the

law entitles him, he 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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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 devotes a substantial portion of his brief to an

argument that he received ineffective assistance of counsel. 

However, he fails to point out any respect in which his counsel

was deficient. Most of his argument is based on the

misimpression that the court was limited to the facts detailed in

the plea agreement and factual résumé in determining the proper

sentence. To the extent petitioner's allegations are conclusory,

they are insufficient to support a claim of ineffective

assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5th

Cir. 2000). Petitioner has not shown that he 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. 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 June 28 , 2005.

 /s/ John McBryde

JOHN McBRYDE

United States District Judge

 

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