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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CIVIL ACTION NO. 4:09cv317
` CRIMINAL ACTION NO. 4:07cr48(1)
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`§§
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`§
` §
`§
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`COREY MINOR, #14282-078
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`VS.
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`UNITED STATES OF AMERICA
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`MEMORANDUM OPINION AND ORDER
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`Movant Corey Minor filed the above-styled and numbered motion to vacate, set aside or
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`correct his sentence pursuant to 28 U.S.C. § 2255. This court denied his § 2255 motion and
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`dismissed his case. Following Final Judgment and the Fifth Circuit’s decision affirming, Movant
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`filed a motion for reconsideration, which this court also denied. On appeal, the Fifth Circuit vacated
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`the order denying Movant’s motion for reconsideration. Concluding that Movant’s claims were not
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`barred by the appeal waiver, it remanded the case for further proceedings.
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`MOTION FOR RECONSIDERATION
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`The Fifth Circuit has observed that “[a]ny motion that draws into question the correctness
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`of a judgment is functionally a motion under Civil Rule 59(e), whatever its label.” Harcon Barge
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`Co. v. D&G Boat Rentals, Inc., 784 F.2d 665, 669-70 (5th Cir. 1986) (en banc) (citing 9 Moore’s
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`Federal Practice ¶ 204.12[1] at 4-67 (1985)). “Rule 59(e) serves the narrow purpose of allowing a
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`party to correct manifest errors of law or fact or to present newly discovered evidence. . . .
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`Reconsideration of a judgment after its entry is an extraordinary remedy that should be used
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`sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (internal citations and
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`quotations omitted). The Fifth Circuit recognizes that Rule 59(e) “favor[s] the denial of motions to
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`alter or amend a judgment.” Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611
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`(5th Cir. 1993). The rule does not exist to be a vehicle for re-litigating old issues, presenting the case
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`under new theories, obtaining a rehearing on the merits, or taking a “second bite at the apple.” Sequa
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`Corp v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). However, it allows a party to “question the
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`correctness of a judgment.” Templet, 367 F.3d at 478.
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`The rule for reconsideration of a final judgment allows a court to alter or amend a judgment
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`because of (1) an intervening change in controlling law, (2) the availability of new evidence not
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`available previously, (3) the need to correct a clear error of law or fact, or (4) to prevent a manifest
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`injustice. Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003). Because
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`Movant filed his motion for reconsideration thirty-seven (37) days after Final Judgment, his motion
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`is construed as a Rule 60(b) motion.
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`FACTS OF THE CASE
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`Movant owned and operated a securities brokerage firm named “Christ Minor Investments,”
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`through which Movant sold securities to the public. From 2003 through November 2006, Movant
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`devised and implemented a scheme to defraud his customers. He obtained money from customers
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`by falsely representing that their money would be used to buy securities. Instead, Movant used the
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`money for his personal benefit and would send false account statements to customers. Movant had
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`at least sixty-four (64) victims. Movant’s fraudulent scheme caused an actual loss of $3,421,958.21
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`to his victims.
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`After being named in a one-count information, Movant pleaded guilty pursuant to a written
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`plea agreement for mail fraud, in violation of 18 U.S.C. §1341. Movant signed a plea agreement
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`stating, “This plea of guilty is freely and voluntarily made and is not the result of force, threats, or
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`promises other than those set forth in this plea agreement.” Immediately above his signature on the
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`agreement, he stated, “I have read (or had read to me) this Plea Agreement and have carefully
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`reviewed every part of it with my attorneys. I fully understand it and voluntarily agree to it.” Movant
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`also stated that (1) he understood the nature and elements of the crimes to which guilt is admitted
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`and that the Factual Statement signed is true, (2) he had “thoroughly reviewed all legal and factual
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`aspects of this case with his/her lawyers and is fully satisfied with that lawyers’ legal representation”,
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`(3) he received satisfactory explanations from his lawyer concerning each paragraph of the plea
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`agreement, each of his rights affected thereby, and the alternatives to entering a guilty plea, and (4)
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`after discussing it with his counsel, he “concedes guilt and has concluded that it is in [his] best
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`interest to enter this agreement rather than proceeding to trial.”
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`In Movant’s Factual Statement, he admitted that he devised a scheme to defraud customers
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`of investments and to obtain their money by false and fraudulent pretenses and representations.
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`Movant then outlined the specific manner in which he schemed and defrauded at least 64 customers.
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`Furthermore, a “Findings of Fact and Recommendation on Guilty Plea before the United
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`States Magistrate Judge” was filed in this case. In it, the court found that Movant “is fully competent
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`and capable of entering an informed plea, that [Movant] is aware of the nature of the charges and the
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`consequences of the plea, and that the plea of guilty is a knowing and voluntary plea supported by
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`an independent basis in fact containing each of the essential elements of the offense.”
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`Movant appeared before the United States Magistrate Judge on March 22, 2007, where the
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`court advised Movant of his rights to remain silent, to have legal counsel appointed, and to plead
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`not guilty and have a trial by jury. Movant had retained legal counsel and indicated that he was
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`satisfied with his legal representation. Movant stated that he understood the elements of the
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`offense of mail
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`fraud outlined by the court, the minimum and maximum penalties, and the items he was forfeiting.
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`The sentencing guidelines were explained to Movant. Movant stated that he understood (1)
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`the guidelines are merely discretionary and are not binding on the court, and (2) he was giving up
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`his right of appeal and right to file any post-conviction proceedings, except for those issues listed
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`as reservations in his plea agreement waiver. Movant confirmed that it was his signature on the plea
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`agreement and that he had read over it and fully understood it before signing it. Movant then stated
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`that no promises, forces, or threats had been made to force him to plead guilty, that he had
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`considered the consequences of his guilty plea, and that he entered into the plea freely and
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`voluntarily. Formal declarations in open court carry with them a strong presumption of truth.
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`Blackledge v. Allison, 431 U.S. 63, 74 (1977). Although a defendant’s attestation of voluntariness
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`at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden
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`upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979). After stating that he was
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`not taking any medication or under the care of a doctor at the time, Movant stated that he
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`understood he was pleading guilty to a felony, which means he is giving up his right to vote, right
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`to possess a firearm, right to hold public office, and the right to serve on a jury. Movant
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`confirmed that it was his signature that appeared on the Factual Statement. He also confirmed
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`that everything stated in the Factual Statement was true.
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`The court concluded that Movant was competent to plea, had able assistance of counsel,
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`understood his trial rights and the nature of the charges against him, understood the maximum
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`penalties that could be given, and that the sentencing guidelines were discretionary. The court found
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`that Movant’s plea was voluntary, there was a factual basis for the plea, and the ends of justice will
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`be served by the acceptance of his plea. Movant stated that he did not have any hesitation or
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`reservation about his plea of guilty.
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`Movant’s sentencing hearing was conducted on October 4, 2007. Evidence was presented
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`concerning the amount of restitution owed and Movant’s obstruction of justice through the mailing
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`of letters to victims following his guilty plea. Additionally, several victims testified. At the
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`conclusion of the hearing, this court sentenced Movant to 240 months of imprisonment and ordered
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`him to pay $2,874,469.63 in restitution.
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`GUILTY PLEA
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`In Movant’s two-page motion for reconsideration, his sole complaint is that “[c]ounsel was
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`ineffective for guiding Minor to plead guilty to a charge that he is legally innocent of and whose
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`actions are not cognizable under any Federal statute.” Any challenge to a conviction that was
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`obtained by a guilty plea is limited to issues of voluntariness, the defendant’s understanding of the
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`charges against him, and his understanding of the consequences of the plea. Hill v. Lockhart, 474
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`U.S. 52, 58-59 (1985); Diaz v. Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983) (“a guilty plea
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`is more than a confession of having acted culpably, it is itself a conviction; nothing remains but
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`to give judgment and determine punishment.”) (citing Boykin v. Alabama, 395 U.S. 238, 242
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`(1969)). If a movant challenges his guilty plea, there must be independent indicia of the likely merit
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`of his contentions, and mere contradictions of his statements at the guilty plea will not carry his
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`burden. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). The validity of a guilty plea is a
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`question of law and will be upheld on habeas review if entered into knowingly, voluntarily, and
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`intelligently. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
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`While Movant’s motion for reconsideration is vague and conclusory, a look at his § 2255
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`motion sheds some light on his assertion. In his § 2255 motion, Movant claims counsel was
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`ineffective because she (1) failed to independently review discovery before advising Movant to plead
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`guilty, (2) failed to independently review the evidence, (3) failed to request exculpatory evidence
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`prior to advising Movant to plead guilty, and (4) was unfamiliar with the Sentencing Guidelines and
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`the mail fraud statute. Movant also asserts that his guilty plea was not knowing and voluntary
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`because the Government did not give him access to the evidence confiscated from him, in violation
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`of Brady v. Maryland, 373 U.S. 37 (1963).
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`In addition to the actual written plea agreement, the court examined Movant’s Factual
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`Statement, Findings of Fact and Recommendation on Guilty Plea before the United States Magistrate
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`Judge, and the transcript from the plea hearing. The court concluded that Movant knowingly and
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`voluntarily pleaded guilty pursuant to a written plea agreement. A knowing and voluntary guilty
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`plea waives all nonjurisdictional deprivations that occurred prior to the plea. Tollett v Henderson,
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`411 U.S. 258, 267(1973). Once a guilty plea has been entered, all nonjurisdictional defects in the
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`proceedings are waived. United States v. Bell, 966 F.2d 914, 915 (5th Cir. 1992). This waiver
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`includes all claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness
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`relates to the giving of the guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert.
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`denied, 466 U.S. 906 (1984). Thus, Movant’s knowing and voluntary guilty plea waives all the
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`claims brought in his § 2255 motion as they allegedly occurred prior to the plea. Tollett, 411 U.S.
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`at 267.
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`INEFFECTIVE ASSISTANCE OF COUNSEL
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`Even if Movant’s knowing and voluntary plea did not waive his claims occurring prior to his
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`plea, there must be independent indicia of the likely merit of his contentions when the guilty plea is
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`challenged. Davis, 825 F.2d at 894. Here, Movant claims that his plea was involuntary because his
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`trial counsel was ineffective. Each of Movant’s ineffective assistance of counsel claims concerns
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`counsel’s alleged failure to investigate. Movant asserts counsel’s failure to investigate resulted in
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`trial counsel erroneously advising Movant to plead guilty.
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`It is well-settled that trial counsel must engage in a reasonable amount of pretrial
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`investigation, and “at a minimum, . . . interview potential witnesses and . . . make an independent
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`investigation of the facts and circumstances of the case.” Nealy v. Cabana, 764 F.2d 1173, 1177 (5th
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`Cir. 1985). A defendant who alleges a failure to investigate must allege with specificity what the
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`investigation would have revealed and how it would have altered the outcome of the trial. Gray v.
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`Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982); Gregory v. Taylor, 601 F.3d 347, 354 (5th Cir. 2010).
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`A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
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`counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
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`F.3d 662, 667 (5th Cir. 1995). To succeed on a claim of ineffective assistance of counsel, a movant
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`must show that “counsel’s representation fell below an objective standard of reasonableness,” with
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`reasonableness judged under professional norms prevailing at the time counsel rendered assistance.
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`Strickland v. Washington, 466 U.S. 668, 688 (1984). The standard requires the reviewing court to
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`give great deference to counsel’s performance, strongly presuming counsel exercised reasonable
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`professional judgment. Id., 466 U.S. at 690. The right to counsel does not require errorless counsel;
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`instead, a criminal defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d
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`388, 389 (5th Cir. 1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v.
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`Maggio, 736 F.2d 279 (5th Cir. 1984). Secondly, the movant “must show that there is a reasonable
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`probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
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`different. A reasonable probability is a probability sufficient to undermine confidence in the
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`outcome.” Strickland, 466 U.S. at 694. Movant must “affirmatively prove,” not just allege,
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`prejudice. Id. at 693. If he fails to prove the prejudice component, the court need not address the
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`question of counsel's performance. Id. at 697.
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`To establish ineffective assistance of counsel relating to the entry of a guilty plea, a defendant
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`must establish that his counsel erred, and but for this error, he would not have pleaded guilty. Del
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`Toro v. Quarterman, 498 F.3d 486, 490 (5th Cir. 2007). When defense counsel has discussed the
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`case with the defendant, explained the elements of the charged offense and possible defenses, and
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`is satisfied that the plea is voluntary, the counsel has fulfilled his duty. Farmer v. Beto, 446 F.2d
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`1357 (5th Cir. 1971).
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` In the instant case, Movant fails to show that he was not adequately informed of the nature
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`of the charges against him or the consequences of pleading guilty prior to his guilty plea. Other than
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`his own assertions and those of his wife, Movant cites to the transcript from his sentencing hearing
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`as support, in which counsel stated she had not requested the Government’s financial records.
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`However, counsel noted that, while she did not have independent access to those records, she had
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`reviewed the records with the Government. As it pertained to one particular victim, Sterling
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`Carberry, counsel noted she had only received the actual records the morning of the hearing, but had
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`discussed the relevant dollar amounts prior to that. Also, in light of a review of the rest of the
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`specific records, counsel stated that she was comfortable with the summary prepared by the
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`Government concerning Sterling Carberry’s records. Counsel examined the majority of the
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`documents in question with the Government. Contrary to Movant’s assertions, she did not say that
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`she failed to ask the Government for records or failed to review the records. Movant has not shown
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`his counsel erred, Del Toro, 498 F.3d at 490; thus, he has not shown ineffective assistance of
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`counsel. Strickland, 466 U.S. at 688.
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`Additionally, in his § 2255 motion, Movant states that he did not know that using a private
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`carrier is not the same as using the United States Postal Service mail in furtherance of the scheme
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`to defraud. He states that had he known this, he would not have pleaded guilty, noting that he almost
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`always used carriers instead of the United States Postal Service. Movant blames counsel for not
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`advising him of the difference. He apparently believes he pleaded guilty to a crime without meeting
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`all the required elements. However, the statute for which Movant was convicted does not necessarily
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`limit fraudulent activities to the use of the United States Postal Service for delivery:
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`Whoever, having devised or intending to devise any scheme or artifice to defraud,
`. . . for the purpose of executing such scheme or artifice or attempting so to do,
`places in any post office or authorized depository for mail matter, any matter or thing
`whatever to be sent or delivered by the Postal Service, or deposits or causes to be
`deposited any matter or thing whatever to be sent or delivered by any private or
`commercial interstate carrier, or takes or receives therefrom, any such matter or
`thing, or knowingly causes to be delivered by mail or such carrier according to the
`direction thereon, or at the place at which it is directed to be delivered by the person
`to whom it is addressed, any such matter or thing, shall be fined under this title or
`imprisoned not more than 20 years, or both....
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`18 U.S.C. § 1341 (emphasis added). Consequently, Movant is simply incorrect in his belief that, by
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`pleading guilty, he was admitting that he used the United States Postal Service for deliveries in
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`the furtherance of the crime. Additionally, the court notes that in the Elements of the Offense,
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`filed in the underlying criminal case, it clearly states the elements:
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`First: That you knowingly created a scheme to defraud,
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`Second: That you acted with a specific intent to commit fraud,
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`Third: That you mailed something or caused another person to mail something or
`placed something or caused something to be placed with a private or commercial
`interstate carrier for the purpose of carrying out the scheme.
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`See Cause No. 4:07cr48 (Dkt. #8). Furthermore, even if Movant’s belief was correct, the record
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`shows that he used the United States Postal Service to send fraudulent documents to at least one of
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`his victims – Max MacGregor, on January 31, 2006. Movant fails to show ineffective assistance of
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`counsel. Strickland, 466 U.S. at 688.
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`Movant claims that counsel failed to investigate, but fails to show what further
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`preparation trial counsel should have done and how it would have made a difference in his case.
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`Gray, 677 F.2d at 1093. He fails to show what counsel would have found had she investigated
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`further or how it would have altered the outcome of his case. Id.
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`Movant broadly states that he is legally innocent of the charge and counsel was ineffective
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`for encouraging Movant to plead guilty. Yet he fails to show that he is legally innocent. Movant’s
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`claim that counsel’s investigation was insufficient cannot be upheld where the allegation is too
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`speculative to overcome the strong presumption of competency and the high burden of actual
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`prejudice required to show ineffectiveness. Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997).
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`Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. United States v.
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`Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982).
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`Movant fails to show deficient performance or that there is a reasonable probability that, but for
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`counsel’s alleged unprofessional errors, the result of the proceeding would have been different.
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`Strickland, 466 U.S. at 694.
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`A close review of the record shows that, contrary to Movant’s assertion of an involuntary
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`plea of guilty, Movant was aware of the charges against him and the consequences of pleading guilty.
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` The court admonished Movant as to the charges against him and his constitutional rights, and
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`Movant stated he understood. Formal declarations in open court carry with them a strong
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`presumption of truth. Blackledge, 431 U.S. at 74. Movant’s declarations in open court undermine
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`any claims of involuntariness he now raises. Rogers v. Maggio, 714 F.2d 35, 38 n. 5 (5th Cir. 1983).
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`Movant fails to meet his burden of rebutting the presumption of regularity accorded his signed court
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`documents. Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir. 1986). He fails to show trial
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`counsel’s performance was deficient. Strickland, 466 U.S. at 688.
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`BRADY VIOLATION
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`Movant lastly claims that his plea was involuntary because of a Brady violation. In Brady,
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`the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused
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`upon request violates due process where the evidence is material either to guilt or to punishment.”
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`Brady, 373 U.S. at 87. The prosecution “need not disgorge every piece of evidence in its possession
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`. . . [but] has an affirmative duty to disclose to the defense evidence that is favorable to the accused
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`and material to guilt.” Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997). In addressing a Brady
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`claim, the Fifth Circuit explained that a defendant must prove:
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`(1) the prosecution suppressed evidence;
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`(2) the suppressed evidence was favorable to the defense; and
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`(3) the suppressed evidence was material to the defense.
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`Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991). The test for materiality is whether there is a
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`“reasonable probability that, had the evidence been disclosed to the defense, the result of the
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`proceeding would have been different.” Id. The materiality of the evidence is evaluated in light of
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`the entire record. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997). The Fifth
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`Circuit also requires that a movant show that “discovery of the allegedly favorable evidence was not
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`the result of a lack of due diligence.” Rector,120 F.3d at 558. The Government does not have a duty
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`to disclose information that is available from other sources. Id. at 559. Additionally, the mere
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`possibility that a piece of information might have helped the defense does not establish materiality
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`in the constitutional sense. Id. at 562.
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`Movant claims that his plea was invalid because the Government refused to give him access
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`to materials that were seized from his place of business prior to his pleading guilty. However,
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`Movant’s counsel stated she reviewed all but one set of records with the Government. She stated
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`that, although she had not actually seen that one particular set of records before the hearing, such
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`records had been discussed. She then reviewed that set of records at the hearing. Movant fails to
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`point to any evidence, from the record or otherwise, to show that the Government suppressed
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`evidence. He fails to identify evidence that was material and favorable to his defense that was
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`suppressed. Movant wholly fails to establish the Brady requirements. He has presented nothing
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`other than his conclusory allegation, which is insufficient for habeas relief. Woods, 870 F.2d at
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`288; Schlang, 691 F.2d at 799. Furthermore, the Fifth Circuit reviewed the record on direct appeal
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`and found no nonfrivolous issues for appeal.
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`CONCLUSION
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` The record shows that Movant’s plea of guilty was knowing and voluntary. Movant fails
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`to show that he did not understand the nature of a constitutional protection that he was waiving or
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`that he had “such an incomplete understanding of the charges against him that this plea cannot stand
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`as an admission of guilt.” James, 56 F.3d at 666. As a result, his claims, all of which allegedly
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`occurred prior to the guilty plea, were waived by his plea of guilty.
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`Even if Movant’s claims were not waived, they are without merit, and are otherwise not
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`supported by the record. Movant fails to show counsel’s performance was deficient or that he was
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`given deficient or misleading advice; thus, Movant fails to meet the requirements of Strickland, 466
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`U.S. 668. Movant also fails to establish a Brady violation. Movant’s guilty plea, which was not
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`affected by ineffective assistance of counsel or a Brady violation, must be upheld because it was
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`knowing and voluntary. Montoya, 226 F.3d at 404.
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`In sum, Movant fails to show trial counsel was ineffective, that counsel’s alleged
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`ineffectiveness affected the validity of his plea agreement, or that he suffered a Brady violation.
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`Movant fails to show (1) an intervening change in controlling law, (2) the availability of new
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`evidence not available previously, (3) the need to correct a clear error of law or fact, or (4) a
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`manifest injustice. Schiller, 342 F.3d at 567; Templet, 367 F.3d at 479. Consequently, he is not
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`entitled to relief. It is accordingly
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`ORDERED that Movant’s motion for reconsideration (dkt #23) is DENIED. It is also
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`ORDERED that all motions filed by any party not previously ruled upon are DENIED.
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