United States v. Lewis
182 F. App'x 344
May 26, 2006 · Docket 03-31135
Headnotes
Generated summaries- Headnote 1
Lewis sought a supplemental COA arguing his sentence violated Blakely, but the court denied it because he did not demonstrate that reasonable jurists would find the district court’s assessment debatable.
- Headnote 2
Lewis contended that his appellate attorney failed to raise an Apprendi claim; the court held he did not establish the required reasonable probability of a different result.
- Headnote 3
Lewis argued he had cause and prejudice for not raising the Apprendi claim on direct appeal, but the court found he had not shown cause because he failed to prove appellate counsel’s ineffectiveness.
- Headnote 4
Lewis sought to amend his petition to add a claim of ineffective assistance at sentencing; the court held the amendment was not entitled to relief because he did not demonstrate that trial counsel’s performance was ineffective and thereby failed the cause‑and‑prejudice test.
- Headnote 5
Lewis alleged that trial counsel failed to raise a Jones‑type Sixth‑Amendment challenge at sentencing; the district court denied relief, finding Lewis had not established counsel’s ineffective assistance.
- Headnote 6
Lewis argued his life‑sentence enhancement was based on a drug‑quantity finding that the jury never made; the court applied the Blakely/Apprendi rule and held the enhancement unconstitutional.
- Headnote 7
Lewis sought a supplemental COA for his Blakely claim, but the district court denied it because he failed to demonstrate that reasonable jurists would find the district court’s assessment debatable.
- Headnote 8
Lewis could not show that his appellate lawyer’s omission of an Apprendi claim was deficient enough to create a reasonable probability of a different outcome, nor could he establish cause to overcome the procedural default, so his claim failed.
- Headnote 9
The court found Lewis had not shown cause because his alleged ineffective assistance of appellate counsel was not proven, and therefore he could not satisfy the prejudice prong to overcome the default.
- Headnote 10
Lewis asserted trial counsel failed to raise a Jones‑type challenge at sentencing; the district court found no showing of ineffective assistance and therefore denied his motion.
- Headnote 11
Lewis sought to amend his § 2255 petition to add a trial‑counsel ineffective‑assistance claim; the court held the amendment did not relate back and denied relief because he failed to demonstrate cause, prejudice, or likelihood of success.
- Headnote 12
The district court denied Lewis’s request for a supplemental COA because he failed to demonstrate that reasonable jurists would find the district court’s assessment of his Blakely claim debatable.
- Headnote 13
Lewis argued his appellate attorney’s failure to raise an Apprendi claim was ineffective assistance, but the court found he offered no reasonable probability of a different result and did not establish cause to overcome the default.
- Headnote 14
The court held Lewis had not shown cause because he failed to prove that his appellate counsel’s ineffectiveness caused the procedural default, and therefore his claim could not be considered.
- Headnote 15
Lewis sought to amend his §2255 petition to add an ineffective‑assistance‑at‑sentencing claim; the district court denied relief, finding no showing that trial counsel was ineffective and that the amendment would likely obtain relief.
- Headnote 16
Lewis alleged that trial counsel failed to raise a Jones‑type challenge to his life‑sentence enhancement; the court found he did not establish counsel’s ineffectiveness, so the claim failed.
- Headnote 17
The district court denied Lewis’s supplemental COA because he failed to demonstrate that reasonable jurists would find the district court’s assessment of his Blakely claim debatable or wrong.
- Headnote 18
Lewis could not show cause because he failed to establish that his appellate counsel’s ineffectiveness caused the default, so the default remained unovercome.
- Headnote 19
The court found Lewis did not establish a reasonable probability that his sentence would differ had his attorney raised the Apprendi claim on direct appeal.
- Headnote 20
The district court held Lewis had not shown that his trial counsel’s failure to raise a Jones‑type challenge rendered his life‑sentence enhancement ineffective.
- Headnote 21
The court found Lewis’s proposed amendment concerning trial counsel’s alleged ineffectiveness failed to satisfy the Fed. R. Civ. P. 15(c)(2) requirements and therefore was properly denied.
- Headnote 22
Lewis argued that his life‑sentence enhancement was unconstitutional because the jury never found the quantity of drugs required for the enhancement; the court rejected the claim, emphasizing the Blakely/Apprendi requirement that such facts must be proven to a jury or admitted.
- Headnote 23
Lewis contended that his appellate lawyer failed to raise an Apprendi claim. The court found no reasonable probability of a different outcome, applying the Strickland standard and citing United States v. Dovalina for the prejudice requirement.
- Headnote 24
Lewis argued he had cause and prejudice for not raising the Apprendi claim on direct appeal. The district court held he failed to establish cause, referencing United States v. Walker’s cause‑and‑prejudice framework.
- Headnote 25
Lewis sought a supplemental COA asserting his enhancement violated Blakely. The court denied the COA, finding he had not shown that reasonable jurists would find the district court’s assessment debatable, applying the Slack standard.
- Headnote 26
Lewis moved to amend his § 2255 petition to add a claim of ineffective assistance at sentencing. The court held the amendment could not relate back and, because he showed no realistic chance of success, denied relief.
- Headnote 27
The court affirmed its denial of Lewis’s amendment request, finding he had not demonstrated that his trial counsel’s performance was ineffective and therefore lacked a realistic chance of obtaining relief under the cause‑and‑prejudice analysis.
Opinion
Jernard Lewis, federal prisoner # 01166-748, was convicted by a jury of conspiring to distribute cocaine base and cocaine hydrochloride and of using and carrying firearms during and in relation to a drug offense. He appeals the district court’s denial of relief on his 28 U.S.C. § 2255 motion challenging his life sentence for the drug offense. Lewis has moved to stay his appeal pending Supreme Court decisions in two unrelated cases. Because Mayle v. Felix, — U.S. —, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005), has been decided, this motion is DENIED as unnecessary. Lewis’s motion for a stay pending a decision in Washington v. Recuenco, 154 Wash.2d 156, 110 P.3d 188, cert. granted, — U.S. —, 126 S.Ct. 478, 163 L.Ed.2d 362 (2005), is also DENIED. See United States v. Robinson, 367 F.3d 278, 285-86 (5th Cir.), cert. denied, 543 U.S. 1005, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); cf. Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir.1986).
The district court granted a certificate of appealability (COA) as to four issues. Lewis moves for a supplemental COA on his assertion that his enhanced sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Lewis, however, has not shown “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, COA is DENIED.
Lewis contends that his appellate attorney rendered ineffective assistance by not raising a claim pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He has not established a “reasonable probability” of “a different outcome if the attorney [had] adequately addressed the issue.” United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir.2001).
Lewis argues that his sentence violated due process under Apprendi because the jury had not made a finding of the requisite drug quantity to support his life sentence. He maintains that he has established cause and prejudice for failing to raise the claim on direct appeal, allowing him to present it in his § 2255 motion. Because Lewis has not established the ineffectiveness of appellate counsel, he has not shown cause to overcome the procedural default. See United States v. Walker, 68 F.3d 931, 934 (5th Cir.1995).
Lewis asserts that the district court abused its discretion in denying his motion to amend his § 2255 motion to add a claim that trial counsel rendered ineffective assistance by not raising at sentencing a challenge to his life sentence pursuant to Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Even if it is assumed that the amendment would relate back to the time of Lewis’s original pleading under Fed.R.Civ.P. 15(c)(2), Lewis is not entitled to relief on this ground. He has not established that his trial counsel rendered ineffective assistance at sentencing. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir.1998). The judgment of the district court denying Lewis’s § 2255 motion is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.