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United States v. Touchet

United States District Court, W.D. Louisiana, Lafayette Division

May 18, 2018


          HANNA JUDGE.



         Before the Court is a motion to vacate, set aside, or correct sentence, filed pursuant to 28 U.S.C. § 2255 by Petitioner Ronnie J. Touchet (“Touchet”). [Rec. Doc. 494] Touchet raises four grounds for relief in his § 2255 motion.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] First, he claims his counsel was ineffective in two instances: (1');">1) failing to file an appeal and (2) failing to investigate Judge Minaldi's alleged drug use. Touchet is not entitled to relief on his ineffective assistance of counsel claims, as he cannot satisfy either or both prongs of the Strickland v. Washington standard as to each claim. He then asserts that his plea was involuntary because he received a 60- month sentence despite being promised a 36-month sentence by his counsel. This claim initially fails as it is procedurally defaulted, but is also meritless, as it is contradicted by the record in this matter. Finally, Touchet argues that Judge Minaldi's alleged drug use during the proceedings against him amounted to a due process violation. This claim also fails, as it is a conclusory allegation, unsupported by facts.

         These claims may be dismissed on the existing record, along with the attached affidavit from his appointed counsel. As such, Touchet is not entitled to an evidentiary hearing. For this reason and the reasons enunciated below, Touchet's section 2255 motion is DENIED and DISMISSED WITH PREJUDICE for failing to state a claim for which relief may be granted.

         I. BACKGROUND

         Defendant, Ronnie Touchet, is a federal prisoner incarcerated at the Beaumont Medium Federal Correctional Institution, Texas. On July 1');">12, 201');">16, he pleaded guilty to Conspiracy to Possess with Intent to Distribute Methamphetamine. He entered a guilty plea before Magistrate Judge Patrick Hanna. [Rec. Doc. 1');">1, pp. 2');">p. 297, 300] Magistrate Judge Hanna wrote a report recommending that District Court Judge Patricia Minaldi accept the guilty plea, which was later adopted. [Rec. Docs. 305, 31');">19].

         On October 20, 201');">16, he was sentenced to 60 months' imprisonment by Judge Minaldi. [Rec. Doc. 407] Judgment was entered on November 1');">10, 201');">16. [Rec. Doc. 41');">11');">1]

         On August 4, 201');">17, Touchet timely filed the instant pro se § 2255 motion. [Rec. Doc. 494].


         Section 2255 “provides the federal prisoner with a post-conviction remedy to test the legality of his detention by filing a motion to vacate judgment and sentence in his trial court.” United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004) (quoting Kuhn v. United States, 432 F.2d 82, 83 (5th Cir. 1');">1970)). The statute establishes that a prisoner in custody under a sentence of a federal court “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Id. (quoting 28 U.S.C. § 2255). Where there has been a “denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.

         A § 2255 motion for post-conviction relief is subject to a one-year time limitation that generally runs from “the date on which the judgment of conviction becomes final.” § 2255, ¶ 6(1');">1).

         Relief under § 2255 is reserved for violations of constitutional rights and for a narrow range of injuries in federal criminal cases that could not have been raised on direct appeal and would result in a fundamental miscarriage of justice. United States v. Petrus, 1');">1004');">44 F.3d 1');">1004, *8 (5th Cir. 1');">1994) (citing United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1');">1992)).

         A district court may deny a § 2255 motion without conducting any type of evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. Arguellas, 78 F. App'x. 984, 986 (5th Cir. 2003) (quoting 28 U.S.C. § 2255; United States v. Bartholomew, 974 F.2d 39, 41');">1 (5th Cir. 1');">1992)). 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. 1');">1981');">1) (citing Buckelew v. United States, 575 F.2d 51');">15 (5th Cir. 1');">1978)).

         A. Ineffective Assistance of Counsel

         Ineffective assistance of counsel claims are governed by the framework set forth in Strickland v. Washington, 466 U.S. 668 (1');">1984). In order to prevail on an ineffective assistance of counsel claim under the Strickland standard, a petitioner must show: (1');">1) counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced him. Id. at 687.

         In establishing deficient performance, the defendant must demonstrate that counsel's “acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. “Given the almost infinite variety of possible trial techniques and tactics available to counsel, [the reviewing court] is careful not to second guess legitimate strategic choices.” Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1');">1993). In short, “Strickland does not guarantee perfect representation, only a reasonably competent attorney.” Harrington v. Richter, 562 U.S. 86, 1');">11');">10 (201');">11');">1). With regard to the prejudice prong, “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.” Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 1');">11');">12.

         1');">1. Failure to File Appeal

         Touchet claims that he “was abandoned by his trial counsel [Kay Karre' Gautraeux] who failed to file a timely direct appeal.” [Rec. Doc. 494, p. 4, ¶1');">12(b)(2)] However, he fails to state that he ever asked his attorney to file an appeal. Counsel declares, in a sworn statement, that “Mr. Touchet was advised of his right to appeal, and he never requested that I file an appeal on his behalf.” [Rec. Doc. 51');">10-1');">1] Counsel adds that Touchet “seemed quite satisfied with the outcome at the time.” Id. Counsel also described her interaction with Touchet after sentencing:

Subsequent to the sentencing hearing, in court, Mr. Touchet and I discussed his sentence. He was advised of his right to file an appeal, and he did not express any request that I file an appeal. He never communicated any desire for an appeal, particularly because he believed at the time, that he had gotten a good result.


         The Strickland standard applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal when requested. Roe v. Flores-Ortega, 528 U.S. 470, 477, (2000). An attorney “who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Id. While the law is clear that failure to file a requested notice of appeal is per se deficient, a petitioner must, however, be able to demonstrate by a preponderance of the evidence that he requested an appeal. United States v. Tapp, 1');">1 F.3d 263');">491');">1 F.3d 263, 266 (5th Cir. 2007). If petitioner establishes a request, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal. Id.

         The Government argues that Gautreaux's sworn statement, in addition to the record, establish that Touchet's claim lacks merit. The Government points out that Touchet has not alleged that he informed counsel of his wish to appeal. Instead, he has merely claimed that she failed to file an appeal, which makes the matter before this Court distinguishable from Tapp and Flores-Orega, supra, in which the defendants requested appeals, there was evidence of those requests in the record, and counsel failed to file notices of appeal.

         Moreover, the Government contends that Touchet's bare bones claim does not even state that he requested an appeal, let alone prove that he requested one by a preponderance of the evidence. Even under the rule of liberal construction, Touchet's statements amount to nothing more than “mere conclusory allegations, ” which are “insufficient to raise a constitutional issue.” See Haines v. Kerner, 1');">19');">404 U.S. 51');">19 (1');">1972) (citing United States v. Woods, 870 F.2d 286, 288 n.3 (5th Cir. 1');">1989)); see also Ross v. Estelle, 694 F.2d 1');">1009, 1');">101');">11');">1 (5th Cir. 1');">1983) (ÔÇťAbsent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition ...

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