United States District Court, W.D. Louisiana, Lafayette Division
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
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
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.
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.
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]
August 4, 201');">17, Touchet timely filed the instant pro se
§ 2255 motion. [Rec. Doc. 494].
LAW AND ANALYSIS
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.
§ 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).
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)).
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)).
Ineffective Assistance of Counsel
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.
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.
Failure to File Appeal
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.
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
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.
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) (“Absent evidence in the
record, a court cannot consider a habeas petitioner's
bald assertions on a critical issue in his pro se petition ...