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United States v. Ward

United States District Court, E.D. Louisiana

February 6, 2017

UNITED STATES
v.
GREGORY WARD

         SECTION: A(3)

          ORDER

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before 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).

         In May 2014, Ward was sentenced to a term of 236 months imprisonment as to Count 1 of the superseding indictment.[1] (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).

         II. Legal Standard

         Ward 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 counsel.

         To 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)).

         The 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).

         As for 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. 1978)).

         III. Discussion

         Ward 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.

         A. Ineffective Assistance of Counsel

         a. Failure to Obtain Conditional Plea

         Ward 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 ...


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