United States District Court, W.D. Louisiana, Shreveport Division
L. HORNSBY, MAG. JUDGE
A. DOUGHTY, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Alwyn Nord Stewart, Jr.'s
(“Stewart”) Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 [Doc. No. 267].
The motion is fully briefed, and the Court is prepared to
FACTS AND PROCEDURAL HISTORY
September of 2012, a federal grand jury for the Western
District of Louisiana charged Stewart with conspiracy to
possess with intent to distribute 50 grams and more of
methamphetamine, and 500 grams and more of a mixture and
substance containing a detectable amount of methamphetamine,
Schedule II controlled substances, in violation of 21 U.S.C.
§§ 841(a) and 846.
December of 2012, the Government filed notice that, pursuant
to 21 U.S.C. § 851, it intended to use a 2003 conviction
for possession of controlled substances, felony
2nd degree, in Cause Number 087316301010, in the
208th District Court, Harris County, Houston,
Texas, a felony drug offense, to enhance the penalties that
Stewart would face upon conviction. Stewart subsequently
entered a guilty plea, and, on April 30, 2015, he was
sentenced to 240 months in prison and 5 years of supervised
release with conditions. Stewart's sentence was enhanced
using the 2003 prior felony conviction. Stewart filed an
appeal, primarily challenging the denial of his pretrial
motion to dismiss his counsel and to appoint a new counsel.
The Fifth Circuit affirmed in full, on December 15, 2016,
noting, with approval, “In addition to having filed
largely fruitful pretrial motions on behalf of Stewart,
Glassell successfully counseled Stewart to accept a favorable
plea agreement that assured him a maximum sentence of 20
years instead of the mandatory life sentence he faced if he
proceeded to trial”.
March 8, 2018, Stewart filed a Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence. Stewart
asserts both his trial counsel and his appellate counsel were
constitutionally ineffective in failing to challenge the
§ 851 enhancement in light of United States v.
Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015),
or United States v. Tanksley, 854 F.3d 284
(5th Cir. 2017).
LAW AND ANALYSIS
Motions under 28 U.S.C. § 2255
motion to vacate, set aside, or correct sentence, a defendant
may present four cognizable grounds, which include (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). “Relief under 28 U.S.C.
§ 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have
been raised on direct appeal and would, if condoned, result
in a complete miscarriage of justice.” United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992) (per curiam).
Ineffective Assistance of Counsel
concerning the performance of one's attorney can be
considered under 28 U.S.C. § 2255. See Masaro v.
United States, 538 U.S. 500, 509 (2003). Claims of
ineffective assistance of counsel are governed by the
familiar standard announced in Strickland v.
Washington, 466 U.S. 668 (1984), where the Supreme
Court held that criminal defendants are entitled to the
effective assistance of counsel pursuant to the Sixth
Amendment of the United States Constitution. The
Strickland Court also held that to sustain a claim
of constitutionally ineffective assistance of counsel a
defendant must prove two things: (1) that defense
counsel's performance “fell below an objective
standard of reasonableness, ” and (2) that the
deficient performance prejudiced the defendant. Id.
assessing counsel's performance in a particular matter,
the Supreme Court also stated that reviewing courts must
judge “the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct.” Id. at 690. 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. Judicial scrutiny of
counsel's performance is highly deferential, and there is
a “strong presumption that counsel performed adequately
and exercised reasonable professional judgment.”
Id. at 689. In short, “Strickland
does not guarantee perfect representation, only a reasonably
competent attorney.” Harrington v. Richter,
562 U.S. 86, 110 (2011).
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 112. The
defendant must establish both prongs of this test.
Armstead v. Scott, 37 F.3d 202, 210 (5th
Cir. 1994) (“A court need not address both components
of the inquiry if the defendant makes an insufficient showing
on one”); Carter v. Johnson, 131 F.3d
452, 463 (5th Cir. 1997) (“Failure to prove either
deficient performance or actual prejudice is fatal to an
ineffective assistance claim.”).
context of sentencing, the movant must demonstrate a
reasonable probability that, but for counsel's errors
with respect to sentencing matters, he would have received
less time in prison. See Glover v. United
States, 531 U.S. 198, 203 (2001).
context of appellate counsel, decisions about which issues to
raise on appeal rest with counsel, who is better suited to
estimate the probability of success on any given argument.
Jones v. Barnes, 463 U.S. 745, 751 (1983).
Counsel is required to assert solid, meritorious arguments
based on directly controlling precedent, but need not raise
every nonfrivilous ground of appeal available. “When as
here, counsel files a merits brief, a defendant generally
must show that a particular nonfrivilous issue was clearly
stronger than issues counsel did present. There is a strong
presumption that counsel's attention to ...