United States v. Stewart
| Decision Date | 12 June 2018 |
| Docket Number | CRIMINAL NO. 5:12-CR-00257 |
| Parties | UNITED STATES OF AMERICA v. ALWYN NORD STEWART, JR. |
| Court | U.S. District Court — Western District of Louisiana |
Pending 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 rule.
In 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.
In 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".1
On 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).
In a 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).
Allegations 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. at 688.
In 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).
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 112. The defendant must establish bothprongs of this test. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) (); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ().
In the 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).
In the 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. Dorsey v. Stephens, 720 F.3d 309, 320 (5th Cir. 2013).
"The process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986). "[I]t is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent." Smith v. Robbins, 528 U.S. 259, 288 (2000).
Stewart contends that his counsel was constitutionally deficient for failing to challenge use of a non-qualifying prior conviction as an § 851 predicate, from the point he received notice that the United States sought to do so in December 2012, up to and including failing to articulate an objection to such increase at Stewart's April 30, 2015 sentencing. Stewart argues that his counsel was deficient for failing to recognize and challenge the United States' notice of enhancement on the ground that his 2003 conviction for 2nd degree possession of controlled substances, in violation of Texas Health & Safety Code § 481.112(a) did not constitute a "felony drug offense" within the meaning of 21 U.S.C. § 802(44).
Title 21, United States Code § 802, states in pertinent part:
(44) The term "felony drug offense" means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.
Stewart contends that his prior conviction for 2nd degree possession of controlled substances was in violation of Texas Health & Safety Code § 481.112(a), and did not constitute a "felony drug offense" within the meaning of 21 U.S.C. § 802(44) because § 481.112(a) is "indivisible and overbroad," meaning that any conviction thereunder categorically fails to qualify as a "felony drug offense."
Texas Health & Safety Code § 481.112(a) states in pertinent part:
Stewart asserts that Texas Health & Safety Code § 481.112(a) is overbroad because the narcotic drugs falling with penalty group 1 include at least thirty-five which do not qualify as "narcotic drugs, marihuana, or depressant or stimulant substances" under the federal generic definition. In support of his argument, Stewart cites United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015), and United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017.), supplemented, 854 F.3d 284 (5th Cir. 2017), and asserts his counsel was constitutionally ineffective in failing to challenge the § 851 enhancement in light of these two cases.
Stewart's entire argument is predicated on his 2003 conviction being a violation of Texas Health & Safety Code § 481.112(a), yet he offers no support that the conviction was under that statute. The 2003...
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