USA v. Weeks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, §
§
Plaintiff/Respondent, §
§
v. §
§
CIVIL ACTION NO. H-25-4054
(CRIMINAL NUMBER H-20-239-01)
JOSEPH RAYMOND WEEKS, §
§
Defendant/Petitioner. §
MEMORANDUM OPINION AND ORDER
Joseph Raymond Weeks ("Petitioner") was found guilty of one
count of Possession With Intent to Distribute Controlled Substance,
in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(viii), and one
count of Use or Carry of a Firearm During and Relation to a Drug
Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) &
(c) (1) (A) (i) . 1 Pending the court Petitioner's Motion
Under 28 U.S.C.§ 2255 to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody ("Petitioner's§ 2255 Motion") (Docket
Entry No. 217). For the reasons explained below, Petitioner's
§ 2255 Motion will be denied.
I . Background
Petitioner was first charged in this case on May 27, 2020. 2
The Original Indictment charged Petitioner, along with one
1 Judgment in a Criminal Case, Docket Entry No. 162, p. 1. All
page numbers reference the pagination imprinted at the tope of the
page by the court's Electronic Case Filing System.
2Original Indictment, Docket Entry No. 15.
United States District Court
Southern District of Texas
ENTERED
May 14, 2026
Nathan Ochsner, Clerk
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codefendant, with one count of Conspiracy to Possess With Intent to
Distribute Controlled Substance and one count of Possession With
Intent to Distribute Controlled Substance. 3 On July 1, 2020, a
Superseding Indictment was returned against Petitioner and two
codefendants, charging Petitioner and a codefendant with three
counts of Conspiracy to Possess With Intent to Distribute
Controlled Substance (Counts 1, 3, and 5) and three counts of
Possession With Intent to Distribute Controlled Substance
(Counts 2, 4, and 6), and Petitioner alone with one count of Felon
in Possession of a Firearm (Count 9). 4
On October 11, 2022, the Government filed a two-count
Superseding Criminal Information that charged Petitioner alone with
one count of Possession With Intent to Distribute Controlled
Substance, in violation of 21 U.S.C. §§ 841 (a) (1) & (b) (1) (B) (viii)
(Count 1), and one count of Use or Carry of a Firearm During and in
Relation to a Drug Trafficking Crime, in violation of 18 U.S.C.
§ 924 (c) (1) (A) & (c) (1) (A) (i) (Count 2).5 The Criminal Information
alleged that Petitioner "intentionally possess[ed] with [the]
intent to distribute . a quantity of 50 grams or more of a
4Superseding Indictment, Docket Entry No. 28, pp. 1-6.
Petitioner was charged with codefendant Rhett Dwayne Farrell for
Counts 1-4, with codefendant Jessica Wickman-Cano for Counts 5-6,
and Petitioner alone for Count 9. The Superseding Indictment
alleged that Petitioner was in possession of fentanyl (Counts 1-2)
and heroin (Counts 3-6).
5Superseding Criminal Information ("Criminal Information"),
Docket Entry No. 114.
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mixture and substance containing a detectable amount of
methamphetamine, a Schedule II controlled substance" and that
Petitioner "knowingly use[d] or carr[ied] a firearm . . during
and in relation to a drug trafficking crime. "6 On October 13,
2022, Petitioner "waive[d] [his] right to prosecution by indictment
and consent [ed] to prosecution by information"
United States Magistrate Judge. 7
before a
That same day, pursuant to a Plea Agreement with the
Government, Petitioner pled guilty to Counts 1 and 2 of the
Criminal Information. 8 During the rearraignment Petitioner stated
under oath that he understood he was pleading guilty to Counts 1
and 2 of the Criminal Information. 9 The court ensured that
Petitioner understood the consequences of pleading guilty, warned
Petitioner about the maximum sentence he faced for each charge, and
reviewed specific provisions of the Plea Agreement with
Petitioner. 10 Based on Petitioner's responses to the court's
questions, the court found that Petitioner's guilty plea was made
7Waiver of an Indictment, Docket Entry No. 120; Arraignment
(Via Zoom) Before the Honorable Yvonne Y. Ho, United States
Magistrate Judge ("Arraignment Transcript"), Docket Entry No. 203,
p. 4 line 5 thru p. 5 line 24.
8 Transcript of Proceedings Before the Honorable Sim Lake,
Rearraignment ("Rearraignment Transcript"), Docket Entry No. 191,
p. 3 lines 13-23, p. 16 lines 23-25; Plea Agreement, Docket Entry
No. 122, p. 1 � 1 (sealed).
9 Rearraignment Transcript,
lines 13-23.
Docket Entry No. 191, p. 3
10Id. at p. 9 line 15 thru p. 14 line 16.
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knowingly and voluntarily. 11 After finding that Petitioner was
"fully competent and capable of entering a knowing and
voluntary plea," the court accepted Petitioner's guilty plea. 12
Petitioner signed the Plea Agreement, which included an addendum
that certified that Petitioner had "consulted with [his] attorney
and fully underst [ood] all [his] rights with respect to the
Criminal Information pending against [him] . "13
On March 16, 2023, the court sentenced Petitioner to 120
months as to Count 1, followed by a consecutive term of 60 months
as to Count 2, for a total of 180 months. 14 After Petitioner was
sentenced,
dismissed. 15
the Original and Superseding Indictments were
Petitioner appealed his conviction and sentence to the Fifth
Circuit. 16 After the appeal was filed, Petitioner's counsel moved
for leave to withdraw, arguing that the appeal presented no
nonfrivolous issue for appellate review. 17 Agreeing with counsel's
11 Id. at 17 lines 6-12.
13 Plea Agreement-Addendum, Docket Entry No. 122, p. 14
(sealed).
14 Judgment in a Criminal Case, Docket Entry No. 162, p. 2.
15United States' Unopposed Motion to Dismiss Original and First
Superseding Indictments, Docket Entry No. 157, p. 1; Order of
Dismissal, Docket Entry No. 161.
16 Defendant's Notice of Appeal, Docket Entry No. 165.
17 Opinion of the Fifth Circuit Court of Appeals, Docket Entry
No. 214.
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assessment, the Fifth Circuit granted counsel's motion to withdraw
and dismissed Petitioner's appeal.18
On August 20, 2025, Petitioner filed his§ 2255 motion.19 The
Government filed a response on December 22, 2025, arguing that
Petitioner's claims lack merit.20 Petitioner has filed a reply.21
II. Analysis
Petitioner argues that because the Government constructively
amended his Original Indictment, his counsel was ineffective for
failing to file a motion to dismiss or a motion for a bill of
particulars.22 Petitioner also argues that his counsel was
ineffective for failing to raise on appeal that the Government
constructively amended the Original Indictment.23
18 Id. The court issued its opinion on November 5, 2024.
Because Petitioner did not file a writ of certiorari, his
conviction became final 90 days after the Fifth Circuit issued its
decision, February 5, 2025. Dodd v. United States, 125 S. Ct.
2478, 2480 (2005). Accordingly, Petitioner had until February 5,
2026, to file his § 2255 motion. See 28 U.S.C. § 2255 (f) (1).
19Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence By Person in Federal Custody ("Petitioner's§ 2255
Motion"), Docket Entry No. 217, p. 14.
20 united States' Memorandum in Opposition to 28 U.S.C. § 2255
Motion ("Government's Response"), Docket Entry No. 228, pp. 1, 10.
21Verified Reply in [] Support of Motion For Post-Conviction
Relief Pursuant to 28 U.S.C. Section 2255, Docket Entry No. 229.
22Petitioner's § 2255 Motion, Docket Entry No. 217, pp. 4, 6,
37.
23 Id. at 6, 23.
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"A claim for ineffective assistance of counsel is properly
made in a § 2255 motion because it raises an issue of
constitutional magnitude and, as a general rule, cannot be raised
on direct appeal." United States v. Conley, 349 F.3d 837, 839 n.1
(5th Cir. 2003) (internal quotation marks and citation omitted).
To prevail on an ineffective assistance of counsel claim a
convicted defendant must show ( 1) that defense counsel's
performance was deficient and (2) that the deficient performance
prejudiced the defendant.
2052, 2064 (1984)
Strickland v. Washington, 104 S. Ct.
Performance is deficient if the defendant's lawyer "made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. "[A] court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." Id.
at 2065. "[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable." Id. at 2066.
To show prejudice a "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."
Id. at 2068. For a trial error, the defendant must show that
counsel's errors were "'so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.'" Harrington v.
Richter, 131 S. Ct. 770, 787-88 (2011).
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A. Petitioner's counsel was not ineffective for failing to file
a motion to dismiss or a motion for a bill of particulars.
Petitioner argues that the Government constructively amended
the Superseding Indictment by prosecuting him with a Criminal
Information that included a charge under 18 U.S.C. § 924(c)(1) and
that his counsel was therefore ineffective for failing to file a
motion to dismiss the Original Indictment or a motion for a bill of
particulars.24
First, because Petitioner entered a knowing and voluntary
plea, his claim that his counsel was ineffective for failing to
file a motion to dismiss the Original Indictment or a motion for a
bill of particulars is waived. United States v. Glinsey, 209 F.3d
386, 392 (5th Cir. 2000) (stating that "[a] voluntary guilty plea
waives all nonjurisdictional defects in the proceedings against the
defendant," which "includes claims of ineffective assistance of
counsel except insofar as the ineffectiveness is alleged to have
rendered the guilty plea involuntary").
Even if Petitioner's claims were not waived by his knowing and
voluntary plea, his claim fails on the merits. The Government did
not constructively amend the Superseding Indictment by prosecuting
Petitioner with a Criminal Information. See United States v.
Thompson, 647 F.3d 180, 184 (5th Cir. 2011) ("A constructive
amendment occurs when it permits the defendant to be convicted upon
a factual basis that effectively modifies an essential element of
24 Id. at 4, 6, 37.
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the offense charged or permits the government to convict the
defendant on a materially different theory or set of facts than
that with which [he] was charged.").
Although Petitioner was not charged with a violation of 18
U.S.C. § 924 (c) (1) in the Original Indictment or the Superseding
Indictment, he was charged with a violation of 18 U.S.C.
§ 924 (c) (1) in the Criminal Information.25 During his arraignment
hearing on the Criminal Information, the United States Magistrate
Judge explained the difference between being tried by an indictment
and being tried by a criminal information; and Petitioner consented
to being tried by the Criminal Information.26 Then after consenting
orally, Petitioner read and signed a consent form that was titled
"Waiver of an Indictment" and stated:
I understand that I have been accused of one or more
offenses punishable by imprisonment for more than one
year. I was advised in open court of my rights and the
nature of the proposed charges against me.
After receiving this advice, I waive my right to
prosecution by indictment and consent to prosecution by
information.27
Additionally, after the court accepted Petitioner's guilty plea, he
signed his Plea Agreement, which included the following language:
25Criminal Information, Docket Entry No. 114, p. 2; see
generally, Original Indictment, Docket Entry No. 15; Superseding
Indictment, Docket Entry No. 28.
26Arraignment Transcript, Docket Entry No. 203, p. 4 line 5
thru p. 5 line 24.
27Waiver of an Indictment, Docket Entry No. 120, p. 1;
Arraignment Transcript, Docket Entry No. 203, p. 4 line 5 thru p. 5
line 24.
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I have consulted with my attorney and fully understand
all my rights with respect to the Criminal Information
against me. 28
Moreover, it is clear that Petitioner understood that Count 2
of the Criminal Information charged him with one count of Use or
Carry of a Firearm During and in Relation to a Drug Trafficking
Crime, in violation of 18 U.S.C. §§ 924 (c) (1) (A) & (c) (1) (A) (i).
Before accepting his guilty plea, the court explained to Petitioner
that "Count 2 [of the criminal information] charge [d] [him] with
carrying a firearm during and in relation to a drug trafficking
crime, in violation of" 18 U.S. C. § 924 (c) (1) . 29 After the court
explained the charges against him, Petitioner stated on the record
that he understood that he was pleading guilty to Count 2 of the
Criminal Information.30 Petitioner also signed his Plea Agreement,
which stated that he agreed to plead guilty to Count 2 of the
Criminal Information. 31
Because Petitioner has failed to establish that the Government
constructively amended the Original Indictment, counsel was not
ineffective for failing to file a motion to dismiss the Original
Indictment or motion for a bill of particulars. Accordingly, the
28 Plea Agreement-Addendum, Docket Entry No. 122, p. 14
(sealed); Rearraignment Transcript, Docket Entry No. 191, p. 17
lines 4-5.
29Rearraignment Transcript, Docket Entry No. 191, p. 3
lines 13-21.
30 Id. at lines 18-23.
31 Plea Agreement, Docket Entry No. 122, p. 1 (sealed).
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court concludes that Petitioner has failed to establish either
prong of the Strickland test for this claim.
B. Counsel was not ineffective for failing to raise on appeal
that the Government constructively amended the Original
Indictment.
Petitioner argues that counsel was ineffective for failing to
raise that the Government constructively amended the Original
Indictment on appeal. 32
"[A]ppellate counsel need not 'raise every nonfrivolous ground
of appeal available' in order to be effective." Higgins v. Cain,
720 F.3d 255, 265 (5th Cir. 2013) (quoting Green v. Johnson, 160
F.3d 1029, 1043 (5th Cir. 1998)). "Instead, appellate counsel's
failure to raise an argument on direct appeal will be considered
ineffective only when counsel fails to perform 'in a reasonably
effective manner.'" Id. (quoting Green, 160 F.3d at 1043). "This
standard requires that appellate counsel 'research relevant facts
and law, or make an informed decision that certain avenues will not
prove faithful."' Id. (quoting United States v. Phillips, 210 F.3d
345, 348 (5th Cir. 2000)). Therefore, "to determine whether
appellate counsel's performance was deficient, [the court] must
consider whether the . . . arguments are 'sufficiently meritorious
such that . . . counsel should have raised [them] on appeal.'" Id.
(quoting Phillips, 210 F.3d at 348).
32 Petitioner's § 2255 Motion, Docket Entry No. 217, pp. 6, 23.
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As discussed above, the Government did not constructively
amend the Original Indictment by prosecuting Petitioner with a
Criminal Information that included a charge for violating 18 U.S.C.
§ 924 (c) (1). Petitioner's counsel was therefore not ineffective
for failing to raise the issue on appeal. Roberts v. Thaler, 681
F.3d 597, 611 (5th Cir. 2012) ("' [CJ ounsel is not required to make
futile motions or objections.'"). Accordingly, the court finds
that Petitioner has failed to establish either prong of the
Strickland test for this claim.
III. Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Proceedings states
that a district court "must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." A certificate of appealability will not issue unless
that applicant makes "a substantial showing of the denial of a
constitutional right," 28 U.S.C. § 2253 (c) (2), which requires an
applicant to demonstrate "that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong." Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under
that controlling standard this requires a petitioner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement
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to proceed further." Miller-El v. Cockrell, 123 S. Ct. 1029, 1039
(2003) (internal quotation marks omitted).
A district court may deny a certificate of appealabili ty,
sua sponte, without requiring further briefing or argument. See
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). Because
the court concludes that reasonable jurists could not find any of
Petitioner's claims meritorious, a certificate of appealability
will be denied.
IV. Conclusion and Order
For the reasons explained above, Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody (Docket Entry No. 217) is DENIED.
Because the court concludes that no reasonable jurist could
find any of Petitioner's claims meritorious, a certificate of
appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 14th day of May, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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