United States District Court, E.D. Louisiana
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is Defendant Gregory Ward's Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a person in federal custody. (Rec. Doc. 77). The
Government opposes the Motion. (Rec. Doc. 85). For the
reasons that follow, Defendant's motion is
DENIED. I. Statement of the
Case In June of 2013, a federal grand jury sitting
in the Eastern District of Louisiana returned a two count
indictment charging Defendant with the following: Count 1 -
possession with intent to distribute heroin in violation of
21 U.S.C. § 841(a)(1) and § 841(b)(1)(A); and Count
2 -possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841(a)(1) and §
841(b)(1)(B). (Rec. Doc. 2). The grand jury issued a
superseding indictment in October 2013 charging Defendant
with possession “with intent to distribute 100 grams or
more of a mixture or substance containing a detectable amount
of heroin” in violation of 21 U.S.C. § 841(a)(1)
and § 841(b)(1)(B). (Rec. Doc. 35). In January of 2014,
Ward pled guilty to Count 1 of the superseding indictment
without a written plea agreement. (Rec. Doc. 52).
2014, Ward was sentenced to a term of 236 months imprisonment
as to Count 1 of the superseding indictment. (Rec. Doc. 62).
Ward filed a timely notice of appeal in May 2014. (Rec. Doc.
63). The United States Court of Appeals for the Fifth Circuit
dismissed Ward's appeal as frivolous on March 11, 2015.
The Fifth Circuit's judgment became final 90 days later
on June 9, 2015. On June 9 2016, Ward timely filed the
instant § 2255 motion to vacate, set aside, or correct
his sentence. (Rec. Doc. 77).
bases his § 2255 motion alleging ineffective assistance
of counsel by his attorney, Eddie Jordan, and requests that
the Court vacate his sentence and conduct an evidentiary
hearing. (Rec. Doc. 77-2). The Government opposes Ward's
motion arguing that even if Jordan's assistance of
counsel was deficient, Ward has not demonstrated that his
defense was prejudiced. (Rec. Doc. 85). Alternatively, the
Government seeks an evidentiary hearing should the Court find
that Ward was prejudiced by Jordan's assistance of
prevail on an ineffective assistance of counsel claim, the
petitioner must satisfy the two-part test enunciated in
Strickland v. Washington, 466 U.S. 668 (1984).
First, the petitioner must establish that counsel's
performance fell below an objective standard of
reasonableness. United States v. Grammas, 376 F.3d
433, 436 (5th Cir. 2004) (citing Strickland v.
Washington, 466 U.S. 668. 687 (1984)). That standard
requires that counsel “research relevant facts and law,
or make an informed decision that certain avenues will not be
fruitful.” Id. (quoting U.S. v. United
States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003)).
second showing that the petitioner must make is that he was
prejudiced by counsel's substandard performance.
United States v. Grammas, 376 F.3d 433, 436 (5th
Cir. 2004) “To prove prejudice, the defendant must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id.
(quoting Conley, 349 F.3d at 841-42). The United
States Court of Appeals for the Fifth Circuit
“consider[s] such factors as the defendant's actual
sentence, the potential minimum and maximum sentences that
could have been received, the placement of the actual
sentence within the range of potential sentences, and any
relevant mitigating or aggravating circumstances.”
United States v. Seglar, 37 F.3d 1131, 1136 (5th
Cir. 1994). If the defendant makes an insufficient showing on
either one of the two prongs of the Strickland test
the court need not address the other. Powell v.
Owens, 43 F.3d 670 (5th Cir. 1994) (not published)
(citing Strickland, 466 U.S. at 697).
Ward's request for an evidentiary hearing, no hearing is
necessary if the issues raised have been previously decided
on direct appeal, contain no constitutional violation, or
lack support in the record. United States v.
McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing
Buckelew v. United States, 575 F.2d 515 (5th Cir.
claims that his attorney, Eddie Jordan, was ineffective
because he 1) failed to preserve Ward's appeal rights, 2)
incorrectly advised Ward about the repercussions of his
guilty plea, and 3) failed to attack the affidavit supporting
the search warrant obtained to search Ward's apartment.
The Government asserts that Ward has failed to prove that
Eddie Jordan's performance was ineffective or that Eddie
Jordan's performance prejudiced Ward's defense.
Ineffective Assistance of Counsel
Failure to Obtain Conditional Plea
first claims his counsel was ineffective for failing to
obtain a conditional plea, which would have allowed him to
preserve his appeal of the trial court's denial of a
motion to suppress. The government argues that Ward can only
claim ineffective assistance of counsel if the government had
offered a plea agreement and ...