United States v. Merrill , 340 F. App'x 976 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2009
No. 08-30785
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RONNIE MERRILL, also known as Manny, also known as Mannie,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-7853
USDC No. 2:02-CR-277-5
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Ronnie Merrill appeals the district court’s denial of his 28 U.S.C. § 2255
motion challenging his 2003 guilty-plea conviction for distributing and for
possessing with the intent to distribute heroin and crack cocaine, in violation of
21 U.S.C. § 841, and his resulting 280-month sentence. Although the district
court denied relief, it granted Merrill a certificate of appealability (COA) on the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30785
issue “whether ineffective assistance of counsel affected the knowing and
voluntary nature of the petitioner’s guilty plea.”
If his brief is liberally construed, Merrill renews the following claims: 1)
counsel was ineffective in inducing his guilty plea by promising that he would
receive a 10-year sentence; 2) counsel was ineffective in failing to question his
mental competency prior to his guilty plea; and 3) counsel was ineffective in
failing to object to the indictment. We do not address the third claim because it
is not encompassed by the district court’s COA grant and because Merrill did not
request an expanded COA in his initial appellate brief. See Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003); United States v. Kimler, 150 F.3d 429, 430-31 (5th
Cir. 1998) see also United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
This court reviews the district court’s factual findings for clear error and
legal conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir.
2008). To prove that his counsel was ineffective, Merrill must show that
counsel’s performance was deficient and that his deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
connection with his claim that counsel should have questioned his mental
competency to plead guilty, Merrill has failed to make the required showing.
The record shows that Merrill was coherent and responsive at rearraignment,
testifying under oath that he understood the charges against him, the plea
agreement, and the nature of the proceedings, as well as that he had been able
to confer about same with counsel. Moreover, subsequent examination by a
court-appointed psychiatrist revealed that Merrill did not suffer from any mental
defect rendering him incompetent. Merrill conclusionally asserts that counsel
should have realized that he suffered from unspecified “drug related mental
impairments.” However, he does not affirmatively assert, nor has he presented
any evidence to show, that he suffered from any mental impairment which
rendered him unable to consult with his lawyer or to understand the nature of
the proceedings and therefore does not establish that he was in fact incompetent
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No. 08-30785
to plead guilty. See Drope v. Missouri, 420 U.S. 162, 172 (1975). By failing to
demonstrate that he was mentally incompetent to plead guilty, Merrill fails to
show that counsel was deficient for failing to raise the issue of his competency
prior to his plea, nor can he show any resulting prejudice. See Smith v. Puckett,
907 F.2d 581, 585 n.6 (5th Cir. 1990). Contrary to his assertion, the district
court did not abuse its discretion in failing to hold an evidentiary hearing on the
claim. See United States v. Fields, 565 F.3d 290, 2009 WL 975806, at *7 (5th Cir.
Apr. 13, 2009).
Merrill’s claim that his plea was induced by the promise of a 10-year
sentence is likewise unavailing. In the district court, Merrill did not present any
independent indicia of the likely merit of his allegations because he did not
present affidavits from reliable third parties establishing the terms of the
alleged promise, the time and place of the promise, or the identity of any
eyewitnesses to the promise. See United States v. Cervantes, 132 F.3d 1106,
1110 (5th Cir. 1998). His own affidavit, containing self-serving conclusional
allegations, is insufficient. See id.; see also United States v. Demik, 489 F.3d 644,
646-47 (5th Cir.), cert. denied, 128 S. Ct. 456 (2007). The affidavit executed by
his girlfriend’s grandmother provided no support as it contained no information
regarding counsel’s alleged promise. See Cervantes, 132 F.3d at 1110.
Merrill now moves to expand the record on appeal to include an affidavit
executed by his girlfriend, Tammy Brown, purportedly executed in January
2006. The Government opposes the motion. Merrill provides no explanation for
not having first provided the affidavit to the district court, and we deny therefore
deny the motion to supplement. However, even if the record were expanded to
include the affidavit, it would not provide independent indicia of the likely merit
of Merrill’s claims as it is does not describe with any specificity where or when
the alleged promise by counsel was made, and, more fatally, it does not indicate
that Brown was in fact an eyewitness to any promise made by counsel directly
to Merrill. See Cervantes, 132 F.3d at 1110.
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No. 08-30785
The evidence presented by Merrill is inconsistent with the bulk of his
conduct, including his presumptively truthful testimony at rearraignment and
the plain terms of the plea agreement, both of which clearly refute the allegation
that counsel promised him a 10-year sentence. Such inconsistency is further
underscored by the fact that Merrill did not raise the claim that his plea was
induced by the promise of a 10-year sentence when he initially moved to
withdraw his plea in the district court. Consequently, Merrill has not shown
that the district court err in rejecting his claim without an evidentiary hearing.
See Cervantes, 132 F.3d at 1110.
Accordingly, the district court’s judgment is AFFIRMED. The motion to
supplement the record is DENIED.
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