1The judgment was signed August 19, 2003.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA §

§

VS. § NO. 4:03-CR-019-A

§ (NO. 4:05-CV-270-A)

TOMMY FANNIN §

MEMORANDUM OPINION

and

ORDER

Came on to be considered the motion of Tommy Fannin under 28

U.S.C. § 2255 to vacate, set aside, or correct sentence. Having

reviewed the motion, the government's response, and applicable

authorities, the court concludes that the motion should be

denied.

I.

Background

On February 12, 2003, in a two-count indictment, Fannin was

charged in: (1) Count 1, with being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) and

(2) Count 2, with possession with intent to distribute five grams

or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(iii). On April 25, 2003, he pleaded guilty to

Count 1, and he was sentenced on August 15, 2003,1 to 188 months

of imprisonment and a three-year term of supervised release. On

the government's motion, Count 2 was dismissed as to Fannin. The

 

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Fifth Circuit affirmed Fannin's sentence, and his § 2255 motion

was timely filed.

II.

Grounds of the § 2255 Motion

In his § 2255 motion, Fannin lists seven grounds for relief,

each of which involves allegations of ineffective assistance of

counsel:

1. "Ground One: Failure to investigate into client's case

and contact, locate, and interview potential witnesses

in favor and against the defense";

2. "Ground Two: Failure to file against Miranda Warning";

3. "Ground Three: Failure to notify courts of the

conflict between client and counsel; where counsel

actively represented the conflict";

4. "Ground Four: Failure to file against the search

warrant as search warrant affidavits contained

fabricated statements and it was because of these

fabrications, a search warrant was issued";

5. "Ground Five: Counsel failed to raise that the

enhancement at sentencing violated the petitioner's

Sixth Amendment of the U.S. Constitution 'Right' to a

jury trial";

6. "Ground Six: Counsel was ineffective on Direct Appeal

for not preparing, raising arguments, and using law and

 

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constitution in petitioner's appeal to show petitioner

was being enhanced illegally in violation of law,

statute, and constitution";

7. "Ground Seven: Counsel was ineffective at the pre-trial

stage for failure to raise Brady and Jencks Act

violations."

Mot. at 7-8(a).

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). 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. Id. at 232

n. 7 (citing United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.

 

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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.

Legal Standard for Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel,

a petitioner must show: (1) deficiency--that his counsel's

performance fell below an objective standard of reasonableness

and (2) prejudice--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, 687-88, 692-93 (1984). In evaluating a counsel's

performance, a court "must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance." Id. at 689. In determining prejudice,

a reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. at 694. Both prongs of the

Strickland test must be met to demonstrate ineffective

assistance. Id. at 697. Here, the record is clearly adequate to

fairly dispose of the claims of ineffective assistance. Hence,

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

1325, 1329 (5th Cir. 1983).

 

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V.

Analysis

A. Failure to Investigate.

In his first ground, Fannin alleges that his counsel did not

interview witnesses, despite being provided their names and phone

numbers, that would show that a government informant fabricated

statements to the police, which statements formed the basis for a

search warrant that ultimately led to the confiscation of drugs,

firearms, and other evidence against Fannin. Allegations of a

counsel's failure to investigate must allege with specificity

what the investigation would have revealed and how it would have

altered the outcome of a defendant's case. Lockett v. Anderson,

230 F.3d 695, 713 (5th Cir. 2000). Complaints of uncalled

witnesses are not favored on collateral review because

allegations of what the witnesses would have testified to are

largely speculative. Evans v. Cockrell, 285 F.3d 370, 377 (5th

Cir. 2002). For Fannin "to demonstrate the requisite Strickland

prejudice, [he] must show not only that [the] testimony would

have been favorable, but also that the witness[es] would have

testified . . . ." Evans, 285 F.3d at 377 (quoting Alexander v.

McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).

Fannin alleges that he provided counsel with "names and

numbers of witnesses that would show that the confidential

informant fabricated his statement to the Fort Worth police

 

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department." Mot. at 7; Mem. Supp. Mot. at 4; Br. Supp. Mot. at

12, 17. However, he identifies only one witness, Gloria Sneed

("Sneed"). In her affidavit, Sneed states:

That the residence at 5549 Van Natta Lane, Fort Worth,

Texas, I have never personally witnessed Mr. Fannin in

possession of any cocaine, or cocaine-based drugs, nor

have I personally witnessed the selling of any cocaine

or cocaine-based drugs, inside of the address of the

abovementioned location. I was not aware of any drugs

being at or any drug related activity taking place at

the above mentioned location until the night of April

19, 2002.

Mem. Supp. Mot., Ex. C at 1. Her statement, even if credible,

indicates only that she was personally unaware of drug-related

activity at the residence; it does not show that the confidential

informant fabricated the statements that formed the basis for the

search warrant. Nor does it show that the police officer's

reliance on the warrant was not objectively reasonable. See,

e.g., United States v. Leon, 468 U.S. 897, 922 (1984) (discussing

the good-faith exception). Even if the court were to assume that

Fannin's counsel was deficient for failing to interview any

witnesses, Fannin fails to show that he was prejudiced thereby.

B. Failure to File a Motion to Suppress Based on Miranda.

Fannin contends that counsel should have moved to suppress

his confession on the ground that he was not read his Miranda

rights until three hours after he was taken into custody. 

Miranda v. Arizona, 384 U.S. 436 (1966). However, his 

contention is contradicted by the record.

The Supreme Court has stated that "the representations of

the defendant, his lawyer, and the prosecutor at a plea hearing

 

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. . . constitute a formidable barrier in any subsequent

collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-

74 (1977). Contrary to the allegations of his motion, Fannin

signed a factual résumé which states "[a]fter reading and signing

a Miranda warning, thus, waiving his rights, Fannin told the

officers there was a firearm in the room he stayed in." Factual

Résumé at 2. In addition, Fannin testified at sentencing that he

signed a waiver of his rights before giving any information to

the police officers. Sentencing Tr. at 16.

Even if the court were to accept the allegations in Fannin's

motion, they do not demonstrate that counsel had reason to file a

motion to suppress. In his supporting brief, Fannin states that

he was told to "sit down, don't move and shut up," but he

identifies no action of the police officers that could be

considered custodial interrogation. Br. Supp. Mot. at 21, 23;

See Gladden v. Roach, 864 F.2d 1196, 1198 (5th Cir. 1989)

(defining interrogation as "words or actions that the police

should know are reasonably likely to elicit incriminating

response from a suspect"). Because a lawyer cannot have been

deficient for declining to raise frivolous legal issues, Fannin

has failed to show his counsel was ineffective for failing to

file a motion to suppress based on Miranda. See Koch v. Puckett,

907 F.2d 524, 527 (5th Cir. 1990).

C. Failure to Notify the Court of Conflict.

Fannin next contends that his counsel was deficient for

failing to notify the court of a conflict between himself and

 

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2In any case, the allegations in Fannin's motion are belied by

the record. Fannin repeatedly indicated that he was satisfied with

counsel's representation. See Plea Agreement at 5, ¶ 11;

Rearraignment Tr. at 24; Sentencing Tr. at 24-25. Moreover, on July

2, 2003, at a hearing on a letter to the court, which the court

treated as a motion to discharge counsel, the only problem with

counsel identified by Fannin was a problem in reaching counsel by

telephone at some point after he entered his guilty plea.

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Fannin. However, the only conflict identified by Fannin is his

counsel's failure to file motions to suppress that, as discussed

in section B, supra, and section D, infra, would have been

meritless. He has identified no deficient conduct on the part of

his counsel.2 Koch, 907 F.2d at 527.

D. Failure to File Motion to Suppress Based on Fabricated

Statements.

In his fourth ground, Fannin asserts that counsel was

deficient for failing to file a motion to suppress on the ground

that the confidential informant fabricated the statements that

formed the basis for the search warrant. Fannin's fourth ground

is essentially a repetition of the arguments and allegations

advanced in Ground One. For the reasons discussed in section A,

supra, Fannin has failed to show that he was prejudiced by any

alleged deficiency in counsel's conduct.

E. Failure to Challenge Sentencing Enhancement.

In his fifth and sixth grounds, Fannin contends that his

counsel was ineffective for failing to argue that Fannin's

sentencing enhancement was unconstitutional under Apprendi,

Blakely, and Booker. Apprendi v. New Jersey, 530 U.S. 466

(2000); Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004);

 

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United States v. Booker, 125 S. Ct. 738 (Jan. 12, 2005). 

However, Fannin was sentenced within the statutory maximum and

therefore he did not violate Apprendi. Moreover, neither Blakely

nor Booker was decided until after Fannin's sentence had been

affirmed by the Fifth Circuit. See Blakely, 124 S. Ct. at 2531;

Booker,125 at 738. Therefore, Fannin fails to show his counsel

was ineffective. See Ogan v. Cockrell, 297 F.3d 349, 360 (5th

Cir. 2000) (noting that "counsel is not required to anticipate

subsequent developments in the law").

In Ground Six, Fannin argues that counsel was ineffective on

appeal for: (1) citing the wrong subsection of the Federal

Sentencing Guidelines and (2) failing to argue that Fannin had

not been convicted for a violent felony. Br. Supp. Mot. at 36-

45. Neither argument has merit. Although counsel cited §

4B1.4(B)(3)(b) of the Federal Sentencing Guidelines rather than §

4B1.4(B)(3)(a) in his appellate brief, the Fifth Circuit

identified the correct legal issue and ruled that Fannin's prior

violent felony offenses, which were committed on different

occasions, qualified him as an armed career criminal under 18

U.S.C. § 924(e). See United States v. Fannin, 94 Fed.Appx. 234, 

2004 WL 816431 at *1 (5th Cir.). Likewise, there is no merit to

Fannin's argument that aggravated robbery is not a violent felony

for the purposes of armed criminal enhancement under § 924(e). 

See Tex. Pen. Code Ann. § 29.03; United States v. Munoz, 150 F.3d

401, 419 (5th Cir. 1989). Therefore, Fannin fails to show that

counsel was ineffective on appeal.

 

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F. Failure to File Motions Under Brady and Jencks Act.

In his seventh ground, Fannin alleges that the government

withheld information and that counsel was ineffective for failing

to file motions under Brady v. Maryland, 373 U.S. 83 (1963), and

the Jencks Act, 18 U.S.C. § 3500.

To establish a claim under Brady, Fannin must show that the

prosecution suppressed favorable, material evidence. Burton v.

United States, 237 F.3d 490, 492 (5th Cir. 2000). Fannin argues

that the government suppressed exculpatory evidence because it

did not produce any. However, Fannin does not show that any

exculpatory evidence existed.

No violation of the Jencks Act can occur until after a

government witness testifies under direct examination. 18 U.S.C.

§ 3500(a). In this case, there was no direct examination of

government witnesses because Fannin plead guilty. Therefore, the

government had no obligation to provide witness statements under

the Jencks Act. Fannin fails to show that counsel's conduct was

deficient or that he was prejudiced thereby.

VI.

Conclusion and Order

For the reasons discussed, 

The court ORDERS that the above-described motion be, and is

hereby, denied.

SIGNED June 7 , 2005.

 /s/ John McBryde

JOHN McBRYDE

United States District Judge

 

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