Aleman-Zurita v. United States of America

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
NIEVES ALEMAN-ZURITA
Petitioner,
VS.
UNITED STATES OF AMERICA
Respondent.
§
§
§ 	CIV. NO. 7:25-00037
§
§ 	CRIM. NO. 7:22-01917-1
§
§
REPORT & RECOMMENDATION
Petitioner, Nieves Aleman-Zurita, a federal prisoner proceeding prose , initiated this action
by filing a hand-written Motion under 28 U.S.C. § 2255, contesting the validity of his conviction
and sentence. 	(Civ. Dkt. No. 1). 1 	This case was subsequently referred to the undersigned
magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b). 	On June 12 ,
2025 , Respondent, United States, filed United States' Motion for Summary Judgment. (Civ. Dkt.
No. 10).
Petitioner claims the government lacked subject matter jurisdiction to convict him due to
the Supreme Court's recent ruling in New York State Rifle & Pistol As s 'n, Inc. v. Bruen ,2 and,
similarly, that he is actually innocent of the underlying crime as a result of the ruling. (Civ. Dkt.
No. 1 at 5, 6).
1 Citations to Criminal Docket Entries pertain to United States v. Aleman-Zurita, 7:22-cr-0 1917-1; Citations
to Civil Docket Entries pertain to filings within this habeas proceeding.
2 597 U .S. I (2022).
1
United States District Court
Southern District of Texas
ENTERED
December 08, 2025
Nathan Ochsner, Clerk
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For the reasons discussed further in this Report and Recommendation, the undersigned
concludes that Petitioner's claims should be denied because they are procedurally barred,
Petitioner fails to show cause and prejudice, and Petitioner is unable to establish actual innocence.
After careful review of the record and relevant law, the undersigned recommends that
United States' Motion for Summary Judgment (Civ. Dkt. No. 10) be GRANTED and Petitioner's
habeas petition under § 2255 (Civ. Dkt. No. 1) be DENIED. 	It is further recommended that
Petitioner's § 2255 petition (Civ. Dkt. No. 1) be DISMISSED with prejudice, and the case be
closed.
Finally, it is further recommended that the District Court DECLINE to issue a certificate
of appealability.
I. 	BACKGROUND AND PROCEDURAL HISTORY
A. 	Facts and Circumstances of Arrest
1. 	21 U.S.C. § 922(g)(l)
On November 9, 2022, Petitioner was arrested by law enforcement in Edinburg, Texas, for
being an illegal alien in possession of a firearm. 3 According to the Criminal Complaint, a firearm 4
was discovered at Petitioner's re sidence after law enforcement agents obtained written consent to
search the home. (Crim. Dkt. No. 1 at 2). During a post-Miranda interview, Petitioner admitted
to being in the United States illegally, that he purchased the recovered firearm six months prior,
and that he knew he could not purchase or possess firearms and/or ammunition due to his
3 Petitioner was initially charged with being an illegal alien in possession of a firearm , in violation of 18
U.S.C. § 922(g)(5)(A). 	(Crim. 0kt. No. 1) . However, Petitioner was later indicted for being a felon in
possession of a firearm , in violation of 18 U.S.C . § 922(g)(l), which is the subject of dispute in this§ 2255
Petition. (Crim. 0kt. No. 10 ; s ee generally Civ. Dkt. No. 1).
4 Law enforcement personnel discovered "one loaded Century Arms, model BFT47, 7.62x39mm caliber
rifle," along with "an assorted amount of ammunition ." (Crim . 0kt. No. l at 2).
2
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immigration status. (Id.). 	Later, a special agent with the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) found the firearm "had previously traveled in interstate or foreign commerce
prior to being possessed" by Petitioner and, thereafter, Petitioner was charged with being an illegal
alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). (Id.).
2. 	The Predicate Felony
On April 25 , 2013 , a Joint Targeting Team (JTT) received information that a residence in
Donna, Texas was being utilized to harbor undocumented aliens. (See United States v. Hernandez-
Lop ez, et al. , Case No. 7:13-cr-00741-2, Dkt. No. 1 at 1). 	On April 29, 2012, while conducting
surveillance, law enforcement agents observed a male subject exit the home and stand by the front
door. (Id.) . Shortly thereafter, a black Mercury vehicle drove up to the home, and approximately
eight male subjects exited the vehicle and entered the home. (Id.). Then, the male who had been
driving, along with two others, exited the home, got back into the vehicle, and left the area. (Id.).
Law enforcement agents subsequently conducted a traffic stop on said vehicle and, upon learning
that the driver and front seat passenger were undocumented aliens who had entered the United
States illegally, placed the driver under arrest. (Id. at 2). Law enforcement officials read the driver
his Miranda rights, which he waived, and, when questioned whether he knew the purpose for the
stop, he responded it was because he dropped off "people." 	(Id.). 	The driver clarified that the
"people" were undocumented aliens. (Id.). After transport to the Border Patrol Station, the driver
confessed to giving a false name and identified himself as Petitioner. (Id.).
Later, law enforcement agents proceeded to the residence and, upon receiving consent to
search the trailer, discovered a total of 49 undocumented aliens with no immigration documents
that would allow them to be or remain in the U.S . legally. (Id.). Witnesses identified Petitioner as
the man in charge of the house, and alleged to have seen up to 80 people in the home at one time.
3
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(Id. at 3). A witness who worked for Petitioner claimed his role was to separate the men from the
women, take their phones, and write their names in a notebook. (Id.). Petitioner would bring food
and more subjects to the home on a regular basis. (Id. at 4). Petitioner was identified by another
witness as the man who would drink beer, advise them to remain quiet and stay calm inside the
house, and instruct them to keep the lights off to avoid being detected by immigration. (Id.).
As a result, Petitioner was held accountable for the transportation and harboring of an
excess of 100 undocumented aliens, including unaccompanied minors. (Crim. Dkt. No. 23 at 14).
Conditions within the home were depicted as crowded, dangerous, and inhumane. (Id.).
Because of said criminal activity, on May 14 , 2013, Petitioner was indicted on three counts:
(1) 	Conspiracy to harbor illegal aliens within the United States, in violation of
8 U.S.C. §§ 1324(a)(l)(A)(v)(I), 1324(a)(l)(A)(iii), and 1324(a)(l)(B)(i);
(2) 	Harboring illegal aliens within the United States, namely Alba Marina
Orellana-Abarca, 	m 	violation 	of 	8 	U.S.C. 	§§ 	1324(a)(l)(A)(iii),
1324(a)(l)(A)(v)(II), and 1324(a)(l)(B)(i); and
(3) 	Harboring illegal aliens within the United States, namely Abrahan Ernesto
Bardales-Vallecillo, 	m 	violation 	of 	8 	U.S.C. 	§§ 	1324(a)(l)(A)(iii),
1324(a)(l )(A)(v)(II), and 1324(a)(l )(B)(i).
(See United States v. Hernande z, et al., Case No. 7:13-cr-00741-2, Dkt. No. 10 at 1-3). 5
On June 26 , 2013, Petitioner pleaded guilty to Count 1 of the indictment. (United States v.
Hernandez, et al., Case No. 7:13-cr-00741-2, Dkt. Entry, Dated June 26, 2013). On December 19 ,
2013, the Honorable Judge Micaela Alvarez sentenced Petitioner to 37 months in prison and
implemented a $100 special assessment; neither a fine nor a term of supervised release was
imposed. 	(United States v. Hernandez, et al., Case No. 7:13-cr-00741-2, Dkt. Entry, Dated Dec.
5 While Petitioner also has a prior felony conviction of illegal reentry, Respondent focuses on the felony
conviction of conspiracy to harbor aliens as the predicate offense in the Bruen-analysis of§ 922(g)( 1). (See
generally Civ. Dkt. No. 10).
4
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19 , 2013). The formal judgment was signed and filed as of December 23 , 2013. (United States v.
Hernandez, et al. , Case No. 7:13 -cr-00741-2, Dkt. No. 65).
B. 	District Cou rt Proceedings
On November 29, 2022, a grand jury indicted Petitioner in the McAllen, Texas division of
the Southern District of Texas on two counts:
(1) 	being a convicted felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)( 1), 924(a)(8); and
(2) 	possession with intent to distribute a controlled substance, that is 500 grams
or more, to wit, one kilogram of cocaine, a Schedule II controlled substance, in
violation of21 U.S.C. §§ 841(a)(l), 841(b)(l)(B).
(Crim. Dkt. No. 10 at 1-2).
The 	presentence 	investigation 	report 	(PSR) 	identified 	the 	following 	pnor 	felony
convictions in support of Count I:
(1) 	Conspiracy to harbor aliens within the U.S . in docket number M-13-741 -
02 , in the Southern District of Texas, McAllen division, on April 29 , 2013 ; and
(2) 	Being found in the U.S. after previous deportation in docket number M-18-
2085-01 , in the Southern District of Texas, McAllen division, on November 27 ,
2018.
(Crim. Dkt. No. 23 at 13-14, ,r,r 60 , 61).
On April 24 , 2023 , Petitioner, pursuant to a signed plea agreement, pleaded guilty to counts
I and II of the indictment before the Honorable District Judge Marina Garcia Marmolejo. (Crim.
Dkt. Entry, Dated April 24, 20 23; see Crim. Dkt. No. 20). Further, as part of the plea agreement,
Petitioner agreed to forfeit the recovered firearms and ammunition, and, in exchange for the guilty
plea, the Government agreed to recommend a two-level decrease pursuant to U.S.S.G. § 3El.l(a)
if Petitioner demonstrated acceptance ofresponsibility. (Crim. Dkt. No. 20 at 1) .
Prior to the sentencing hearing, the U.S . Probation Department determined that, based on
the 2021 edition of the U.S. Sentencing Guidelines Manual, Petitioner's overa ll adjusted criminal
5
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offense level for both offenses was 26 (Crim. Dkt. No. 23 at 11, 1 54) after a two-level reduction
for acceptance ofresponsibility (Crim. Dkt. No. 23 at 11-12, 155) and the overall criminal history
category of III (Crim. Dkt. No. 23 at 14 , 1 62). 	Based on these findings, the recommended
guideline sentence for Count I was 57 to 71 months, and for Count II, it was 60 to 71 months. 6
(Id. at 18, 1 85).
Petitioner appeared before the Honorable Chief District Judge Randy Crane for the
sentencing hearing on September 23, 2024. 	(Crim. Dkt. Entry, Dated Sept. 23 , 2024). 	The
Government moved for a one level reduction for third acceptance point pursuant to U.S.S.G. §
3El.l(b) , which Chief Judge granted. 	(Crim. Dkt. No. 46 at 3:12-15). 7 After hearing arguments
from Counsel and Petitioner's allocution, the District Court adopted the presentence investigation
report and made a finding that the guideline score placed Petitioner at Level 23, Category 3, and
the commensurate guideline range was 57 to 71 months. (Id. at 5:2-4). 	However, because there
was a statutory mandatory-minimum of 60 months for the drug charge, the recommended range
was 60 to 71 months. 	(Id. at 5:2-8). Chief Judge Crane subsequently sentenced Petitioner to 60
months imprisonment as to each of the counts to run concurrently, to be followed by three years
of supervised release as to Count I (firearm charge) and four years of supervised release as to
Count II (drug charge), also to run concurrently with each other. 	(Id. at 5:5-17). 	No fine was
assessed as to either charge, but a $100 special assessment was assessed as to each for an aggregate
of $200. (Id. at 5:18-19).
The Chief Judge then advised Petitioner of his right to appeal. (Id. at 5:20-21).
6 The drug conviction (Count II) carried a mandatory minimum sentence of 60 months, thus leading to the
adjusted range. (Crim. Dkt. No. 23 at 18); see also 21 U.S.C. §§ 841(a)(l), 841(b)(l)(B).
7 Crim. 0kt. No. 46 is a transcript of the sentencing hearing held on Sept. 23, 2024.
6
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C. 	Appeal
Petitioner failed to appeal his conviction. (Civ. Dkt. No. 1 at 5) . In lieu of direct appeal,
Petitioner filed the present Petition on January 17 , 2025, for collateral review under § 2255 to
vacate, set aside, or correct his sentence. (Civ. Dkt. No. 1).
II. 	SUMMARY OF THE PLEADINGS
Petitioner filed the current Petition on January 17 , 2025, arguing two points of error that
require the Court to vacate his underlying conviction for felon-in-possession. 8 (Civ. Dkt. No. 1).
First, Petitioner claims the district court lacked subject matter jurisdiction to hear the case. 	In
support of this contention, Petitioner argues:
Petitioner was 	convicted 	in violation 	of the 	2 nd Amendment 	of the
Constitution of the United States, to wit: felon in possession of a firearm, having
previously been convicted of a non-violent crime punishable by imprisonment for
a term exceeding one year. The government lacked subject matter jurisdiction in
light of the ruling in New York State Rifle+ Pistol Ass'n, Inc. v. Bruen, 142 S. Ct.
2111 (2002), to prosecute a non-violent person bearing arms for the purpose of self-
defense which violates the plain text of the U.S . Constitution " as applied." 	The
government's prosecution is incompatible with the history and tradition of this
nation's firearm prohibitions "as applied." Movant hereby implores the Honorable
Court to grant an order to vacate count one (1) and dismiss with prejudice. 	18
U.S.C . § 922(g)(l) burdens conduct protected by the second amendment. 	The
conduct prohibited by 922(g)(l) falls within the scope of the second amendment.
(Civ. Dkt. No. 1 at 5) .
argues:
Second, Petitioner alleges "actual innocence" and a "miscarriage of justice" to which he
Movant's adjudication of guilty is contrary to the nature of the charged
offense, count one (1 ), felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(l) and § 924(a)(8). 	The conduct for which movant Aleman-Zurita was
convicted of is outside the permissible reach of this federal statute, supra, " as
8 As noted, Petitioner pied gui lty to two offenses: (l) fe lon in possession of a firearm in violation of 18
U.S .C. §§ 922(g)(l), 924(a)(8) and (2) possession with intent to distribute 1 kg of cocaine in violation of
21 U.S.C. §§ 841(a)(l), 841(b)(l)(B), and 18 U.S.C. § 2. (Crim . Dkt. No. 35 at 1). However, in the§ 2255
petition, Petitioner only challenges the conviction of felon in possession of a firearm . (Civ. Dkt. No. I at
2).
7
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applied" and thus violates the "plain text" of the 2 nd Amendment of the U.S.
Constitution, the right to bear arms, and the government cannot show a historical
tradition of categorically disarming felons. 	The defendant's conduct was not
criminal under the law at the time of its commission. See, Bousley v. United States,
523 U.S. 614 (1998). Therefore, the Petitioner has suffered a grave miscarriage of
justice that warrants his conviction be vacated and dismissed with prejudice.
(Civ. Dkt. No. 1 at 6).
Respondent, United States, filed United States' Motion for Summary Judgment on June 12 ,
2025 . (Civ. Dkt. No. 10). Respondent primarily argues that Petitioner's claims are procedurally
defaulted, and that Petitioner cannot show cause and prejudice to overcome the default, nor can he
show actual innocence. (Civ. Dkt. No. 10 at 1-2). In the alternative, Respondent contends that,
even if Petitioner's claims were not procedurally barred, his as-applied challenges are meritless.
(Id. at 2) . First, Respondent argues Petitioner's claims are barred because they could have been,
but were not, raised on appeal. 	(Civ. Dkt. No. 10 at 7). 	Next, Respondent claims Petitioner is
unable to show cause because he has not alleged any external factor that prevented him from
raising the issue on direct appeal. (Id. at 10) . Then, Respondent argues that Petitioner cannot show
prejudice because " [h]e cannot point to any binding precedent supporting his argument[,]" and,
thus, Petitioner cannot "definitively establish that § 922(g)(l) is unconstitutional as applied to
[him] given his criminal history." (Id. at 13-14). Respondent then responds to Petitioner's actual
innocence suggestion by claiming it is undisputed that Petitioner possessed a firearm after being
previously convicted of a felon y. 	(Id. 	at 16). 	Finally, Respondent argues that, even if not
procedurally defaulted, Petitioner's Bruen challenge must fail because slave smuggling laws at the
founding are a historical analogue to the predicate offense here, and because Petitioner's criminal
history demonstrates he is a dangerous felon. (Id. at 19 , 25).
After a careful review of the filings and a diligent diagnosis of current precedent, this case
is ripe for disposition on the record.
8
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III. 	AN ALYSIS
A. 	Jurisdiction
Petitioner did not appeal his conviction to the Fifth Circuit Court of Appeals; therefore, the
case became final for purposes of habeas review at the expiration of the fourteen days allotted to
file a Notice of Appeal. S ee United States v. Scruggs, 691 F.3d 660, 669 (5th Cir. 2013) ("When a
defendant does not file a direct appeal, his conviction becomes final on the day when the time for
filing a direct appeal expires." ); Fed. R. App. P. 4(b)(l)(A)(l). Therefore, Petitioner had one year
from October 7, 2024, 9 to file a writ of habeas corpus. 	See 28 U.S.C. § 2255(±)(1). Petitioner's
hand-written Motion was filed on January 17, 2025 , well within the one-year limitation period for
filing a writ of habeas corpus.
Thus, the Court has jurisdiction to review this habeas petition. 28 U.S .C. §§ 1331 , 2255.
B. 	Appli ca ble Law
1. 	Summary Judgment Review
The Federal Rules of Civil Procedure apply if there is no conflict with the federal rules
governing habeas proceedings. Burgess v. United States, 874 F.3d 1292, 1296 (11th Cir. 2017)
(citing Fed. R. Civ. P. 81(a)(4)(A) and R. Gov. Sec. 2255 Proceedings 12). Unless there is a noted
conflict with the Rules Governing § 2255 Proceedings, these claims are reviewed under Fed. R.
Civ. P. 56(a).
Summary Judgment is appropriate if the pleadings and evidence show that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). Once the moving party presents a "properly supported motion for summary
9 Judgment was entered on September 23 , 2024, and Petitioner had 14 days to fi le a Notice of Appea l.
(Crim . Dkt. No. 35); see also Fed. R. App. P. 4(b)( l )(A). As such, when Petitioner fai led to file a Notice
of Appeal, his conviction became fina l 14 days later, on October 7, 2024 .
9
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judgment, the burden shifts to the nonmoving party to show with 'significant probative evidence'
that there exists a genuine issue of material fact." Hamilton v. Segue Software, Inc. , 232 F.3d 473,
477 (5th Cir. 2000) (internal citation omitted). When reviewing a motion for summary judgment,
a district court must generally construe disputed facts in the light most favorable to the nonmoving
party. Anderson v. Liberty Lobby, In c., 477 U.S. 242,255 (1986).
2. 	28 U.S .C. § 2255
It is well settled that "[f]ollowing a conviction and exhaustion or waiver of the right to
direct appeal, [courts] presume a defendant stands fairly and finally convicted." 	United States v.
Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-
32 (5th Cir. 1991)). Therefore, there are only four limited grounds upon which a federal prisoner
may move to vacate, set aside, or correct his sentence upon collateral review:
( 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(a); United States v. Piacente, 81 F.3d 555, 558 (5th Cir. 1996).
When a Petitioner had the opportunity to raise contested issues on appeal but failed to do
so , his claims are said to be procedurally barred. 	United States v. Guerra, 94 F.3d 989, 993 (5th
Cir. 1996). "The effect of procedural bar is to preclude a defendant from attacking his conviction
or sentence on collateral review." Id. 	However, a petitioner may circumvent the procedural bar if
he can show "both 'ca use' for his procedural default, and 'actual prejudice' resulting from the
error." Shaid, 937 F.2d at 232 (citing United States v. Frady, 456 U.S. 152, 168 (1982)). "This
cause and actual prejudice standard presents ' a significantly higher hurdle ' than the 'plain error'
standard [applied] on direct appeal." Id. (citing Frady, 456 U.S. at 166). In other words, Petitioner
must explain why the constitutional or jurisdictional claim was not brought up on direct appeal
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(the cause for the procedural default due to not appealing the issue) and the harm caused by said
claim (the prejudice resulting from such claim). 	This "rigorous standard" is applied " to ensure
that final judgments command respect and that their binding effect does not last only until the ' next
in a series of endless postconviction collateral attacks. "' Id. (quoting Frady, 456 U.S . at 165-66.)
"A defendant must meet this cause and actual prejudice test even when he alleges a fundamental
constitutional error." Id. (citing Murray v. Carrier, 477 U.S . 478, 493 (1986)).
The Supreme Court has provided a narrow exception to this high bar of cause and prejudice
for the "extraordinary case" where "a constitutional violation has probably resulted in the
conviction of one who is actually innocent[.]" Id . (citing Carrier, 477 U.S . at 496.) In this regard,
the claim of actual innocence, if established, serves as a gateway through which a petitioner may
overcome procedural default or the expiration of the statute oflimitations. McQuiggin v. Perkins,
569 U.S. 383 , 386 (2013); see also Tamayo v. Steph ens, 740 F.3d 986, 990 (5th Cir. 2013). 	But
the Supreme Court has cautioned "that tenable actual-innocence gateway pleas are rare."
McQuiggin, 569 U.S. at 386. 	" To be credible, an actual innocence claim requires a petitioner to
support allegations of constitutional error with new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." 	Schlup v.
De lo , 513 U.S: 298, 324 (1995). 	Alternatively, " [o]ther types of error may not be raised under
section 2255 unless the defendant demonstrates that the error could not have been raised on direct
appeal, and, if condoned, would result in a complete miscarriage of justice." Cervantes, 132 F.3d
at 1109 (citing United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)); s ee also Shaid, 937
F.2d at 232 n.7.
Lastly, the Supreme Court has held that an "ineffective-assistance-of-counsel claim may
be brought in a collateral proceeding under§ 2255, whether or not the petitioner could have raised
11
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the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). 	Failure to set
forth ineffective assistance of counsel claims on direct appeal is not a procedural default that must
be excused only upon the showing of cause and prejudice. "The procedural-default rule is neither
a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve
judicial resources and to respect the law' s important interest in the finality of judgments" and
requiring a petitioner to bring an ineffective assistance of counsel claim on direct appeal "does not
promote [those] objectives." Id. at 504.
C. 	Petitioner's Claims
1. 	Petitioner's claims are procedurally barred.
Respondent suggests Petitioner's claims are procedurally defaulted. 	Generally, "after a
conviction and exhaustion or waiver of any right to appeal, [the] Court is entitled to presume that
the defendant stands fairly and finally convicted." United States v. Willis , 273 F.3d 592, 595 (5th
Cir. 2001). 	Here, Petitioner 's claim 10 that § 922(g)(l) is unconstitutional as applied to his
conviction was not raised on direct appeal; therefore, the issue is "being raised for the first time in
the present § 2255 motion[,]" and is procedurally barred. 11 	Id. 	To circumvent the procedural
default and, nevertheless, for the Court to review his claim on the merits, Petitioner must show
cause for his procedural default and actual prejudice, or actual innocence. United States v. Wil son,
No. 2:23-CV-973 , 2025 WL 445040, at *1 (5th Cir. Feb. 10 , 2025).
10 While Petitioner's § 2255 petition presents two issues, lack of subject matter jurisdiction and actual
innocence, the Court construes this as a singular challenge: § 922(g)(I) is unconstitutional as applied to
Petitioner as a result of the Supreme Court's holding in Bruen. (Civ. 0kt. No. I at 5, 6).
11 Bruen was decided on June 23 , 2022, nearly five months before Petitioner was arrested and indicted in
November of 2022 (Crim . 0kt. Nos. I, I 0), ten months before he pleaded guilty in April of 2023 (Crim .
0kt. No. 20), and over one year before he was sentenced in September of 2024 (Crim . 0kt. No. 35). Thus,
any argument based on the Supreme Court's ruling in Bruen could have been raised during the district court
proceedings and on direct appeal.
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2. 	Petitioner cannot show cause.
To satisfy the "cause" standard, Petitioner must show that '" some objective factor external
to the defense' prevented him from raising on direct appeal the claim he now advances." Guerra,
94 F.3d at 993 (citing Romero v. Collin s, 961 F.2d 1181 , 1183 (5th Cir. 1992)). These objective
factors 	include "interference by officials that makes compliance with the procedural rule
impracticable, a showing that the factual or legal basis for the claim was not reasonably available
to counsel at the prior occasion, and ineffective assistance of counsel in the constitutional sense."
Id.
Respondent contends Petitioner fails to show cause because Petitioner cannot show an
official interference that would constitute cause for failing to bring his challenge on appeal, nor
can he show that the legal challenge was not available to him. (Civ. Dkt. No. 10 at 9). The Court
agrees.
Petitioner makes no assertion that external factors precluded him from bringing his §
922(g)( l) constitutional challenge on direct appeal. As mentioned, Bruen was decided well before
Petitioner's conviction, so any challenge based on such would have been available to him on direct
appea l. 	Conversely, Petitioner does not show that his counsel was ineffective, as detailed further
below. Petitioner fails to establish, or even allude to, an y external factors under the cause standard
to justify his failure to bring up the present issue on direct appeal. Accordingly, Petitioner fails to
establish cause.
3. 	Petitioner cannot show prejudice.
In addition to satisfying the "cause" standard, Petitioner must show actual prejudice to
overcome the procedural bar. Guerra, 94 F.3d at 994. 	Petitioner may make this showing where
he demonstrates that "but for the error, he might not have been convicted." Id. Specifically, in the
13
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context of a guilty plea, Petitioner must show that "absent the error by the district court he would
not have pleaded guilty and would have insisted on going to trial." Id.
Respondent argues Petitioner fails to show that, but-for any error, Petitioner would have
insisted on going to trial, and there is no insinuation that the outcome would have been any
different because his constitutional argument is "based on pure speculation about perceived future
holdings of the Supreme Court." (Civ. Dkt. No. 10 at 12-13).
As discussed in greater detail below, neither the Supreme Court nor the Fifth Circuit has
found § 922(g)(l) unconstitutional post-Brue n. 	Petitioner has not alleged that he would have
insisted on going to trial as a result of some error, nor can he show as much, considering the offense
of felon in possession of a firearm was a crime when Petitioner was convicted and remains so
today. Therefore, Petitioner fails to show prejudice.
4. 	Petitioner cannot show actual innocence.
Where a petitioner fails to establish cause or prejudice, a procedurally defaulted claim may
nevertheless be considered for the first time in a § 2255 review if the petitioner can show that he
is "actually innocent." United States v. Wilson , No. 2:21-CR-00268-02, 2023 WL 7095722, at *1
(W.D. La. Oct. 26 , 2023) (citing Bousley v. United States, 523 U. S. 614, 622 (1998)).
There is no freestanding claim of actual innocence; rather, actual innocence is an equitable
safety valve to permit review of the merits of an otherwise barred constitutional claim. 	United
States v. Gutierrez, No. H-12-261-3 , 2022 WL 17650587, at *3 (S.D. Tex. Dec. 12 , 2022) (citing
Schlup, 513 U.S. at 315). Further, a "showing of actual innocence is rare and requires a petitioner
to show that, in light of new evidence, no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt. " Id. (citing McQuiggin , 569 U.S . at 386 and Schlup, 513 U.S.
at 329).
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Thus, to make a showing of actual innocence, Petitioner must produce '"new reliable
evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence'-sufficient to 	persuade the district court that 	'no juror, 	acting
reasonably, would have voted to find him guilty beyond a reasonable doubt."' 	Id. 	Moreover,
evidence that "' was always within reach of [Petitioner's] personal knowledge or reasonable
investigation' does not qualify as new." Id. (citing Hancock v. Davis, 906 F.3d 387, 389 (5th Cir.
2018)).
Petitioner argues the conduct for which he was convicted is outside the permissive reach
of the statute and thus violates the Second Amendment. 	(Civ. Dkt. No. 1 at 6). 	As a result,
Petitioner contends, the conduct was not criminal under the law at the time of its commission, and
he has suffered a "grave miscarriage of justice[.]" (Id.).
Respondent argues that Petitioner does not dispute the actions underlying the felon-in-
possession conviction, nor that he had a qualified predicate felony on his record and, thus,
Petitioner cannot show that he did not commit the crime. (Civ. Dkt. No. 10 at 16).
Petitioner's actual innocence claim "is not predicated on 'new evidence' contemplated
under the actual-innocence standard." 12 United States v. Wilson , No. 24-30217, 2025 WL 445040,
at *1 (5th Cir. Feb. 10 , 2025) (citing United States v. Vargas-Soto, 35 F.4th 979, 999 (5th Cir.
2022)). 	It is undisputed that Petitioner possessed a firearm after previously being convicted of a
felony. (Crim. Dkt. No. 45 at 38:21-40: 15). 13 Petitioner's sole claim is predicated on the premise
12 A district court in the Western District of Louisiana frames a Bruen "actual innocence" challenge
differently. "An actual innocence claim requires a prior decision holding that the specific law in question
is unconstitutional." Wilson, 2023 WL 7095722, at *3. As discussed in further detail below, Bruen and the
subsequent development of Fifth Circuit jurisprudence have not found § 922(g)(l) to be unconstitutional.
See irifra Section D.
13 Crim. 0kt. No . 45 is a transcript of the re-arraignment held on April 24, 2023.
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that § 922(g)(l) is unconstitutional as applied to him and does not present any "new evidence" for
the Court to consider under the actual innocence standard. Thus, Petitioner fails to establish actual
innocence to circumvent the procedural bar and, alternatively, Petitioner fails to "demonstrate[]
that the error could not have been raised on direct appeal, and, if condoned, would result in a
complete miscarriage of justice." Cervantes, 132 F.3d at 1109 (citing Pierce, 959 F.2d at 1301).
5. 	The district court had subject matter jurisdiction.
Additionally, Petitioner argues "the government lacked subject-matter jurisdiction in light
of the ruling in New York State Rifle & Pistol Ass 'n , Inc. v. Bruen, [] to prosecute a non-violent
person bearing arms for the purpose of self-defense which violates the plain text of the U.S.
Constitution 'as applied."' 	(Civ. Dkt. No. 1 at 5) (citations omitted). 	As mentioned above, the
Court construes this as a singular challenge as to the constitutionality of§ 922(g)(l ). 	See supra
note 10. However, insofar as this is a jurisdictional argument, the Fifth Circuit "has explained that
the full extent of subject matter jurisdictional analysis for federal criminal cases is whether 'the
indictment charges ... that the defendant committed a crime described in Title 18 or in one of the
other statutes defining federal crimes ." ' United States v. Brown, No. 20-0242, 2025 WL 2231788,
at *4 (W.D. La. Aug. 4, 2025) (quoting United States v. Scruggs, 714 F.3d 258,262 (5th Cir. 2013)).
Petitioner was charged with violating federal law. 14
As such, the district court had subject matter jurisdiction over this matter.
14 Petitioner was charged with violating 18 U.S.C. §§ 922(g)(l), 924(a)(8) and 21 U.S.C . §§ 841(a)(l),
84l(b)(l)(B), and 18 U.S.C. § 2. (Crim. Dkt. No. 10).
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6. 	Petitioner fails to establish ineffective assistance of counsel.
Petitioner has not clearly pleaded ineffective assistance of counsel in his§ 2255 petition as
a ground to vacate the underlying conviction. 15 However, in his petition, Petitioner states that he
"relied on advice of defense counsel" and that "counsel advised that there were no non-frivolous
claims available." (Civ. Dkt. No . 1 at 5, 11). In an abundance of caution, the Court will analyze
this issue as well.
The Supreme Court has held that an "ineffective-assistance-of-counsel claim may be
brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised
the claim on direct appeal." Massaro, 538 U.S. at 504. Failure to raise an ineffective assistance
of counsel claim on direct appeal is not a procedural default that must be excused only upon a
showing of cause and prejudice. 	"The procedural-default rule is neither a statutory nor a
constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial
resources and to respect the law's important interest in the finality of judgments" and requiring
Petitioner to bring an ineffective assistance of counsel claim on direct appeal "does not promote
[those] objectives." 	Id. at 504. 	As mentioned above, Petitioner failed to directly appeal his
conviction. However, this is not fatal to an ineffective assistance of counsel claim.
Claims of ineffective assistance of counsel are analyzed under the well-known two-prong
test set forth in Strickland v. Washington , 466 U.S. 668 (1984). 	To satisfy the Strickland test,
Petitioner is required to show that (1) his attorney 's performance was deficient, and (2) that the
deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. "Failure to prove either
deficient performance or actual prejudice is fatal to an ineffective assistance claim." 	Carter v.
15 " [P]ro se habeas petitions ' are not held to the same stringent and rigorous standards as are pleadings filed
by lawyers."' Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (quoting Bledsue v. Johnson , 188 F.3d
250, 255 (5th Cir. 1999). "The filings of a federal habeas petitioner who is proceeding prose are entitled
to the benefit of liberal construction." Id. at 426 ( citations omitted).
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Johnson , 131 F.3d 452, 463 (5th Cir. 1997). Thus, "[a] court need not address both components
of the inquiry if the [petitioner] makes an insufficient showing on one." Armsteadv. Scott, 37 F.3d
202,210 (5th Cir. 1994).
The first prong requires Petitioner to show that the alleged errors of counsel were so serious
that the assistance received was "below the constitutional minimum guaranteed by the Sixth
Amendment." 	United States v. Faubion, 19 F.3d 226,228 (5th Cir. 1994) (citing Strickland, 466
U.S. at 688). 	The "constitutional minimum is measured against an objective standard of
reasonableness." 	Id. (citing Strickland, 466 U.S . at 688). 	An ineffective assistance of counsel
claim focuses on "counsel's challenged conduct on the facts of the particular case, viewed as of
the time of counsel's conduct[,]" because "[i]t is all too tempting for a [petitioner] to second-guess
counsel's assistance after [the] conviction or [an] adverse sentence[.]" Strickland, 466 U.S. at 689-
90.
The second prong reqmres Petitioner to "demonstrate that [his] 	counsel's deficient
performance so prejudiced [his] defense that the proceeding was fundamentally unfair." Faubion,
19 F.3d at 228 (citing Strickland, 466 U.S. at 688). To show prejudice, a Petitioner 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. 	Moreover, when the
Petitioner "claims that his counsel's deficient performance deprived him of a trial by causing him
to accept a plea, the [Petitioner] can show prejudice by demonstrating a 'reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going
to trial."' Lee v. United States, 582 U.S. 357, 364 (2017) (citing Hill v. Lockhart, 474 U.S . 52 , 59
(1985)).
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Moreover, "counsel is not ineffective for failing to anticipate future changes in the law;
counsel is not required to be clairvoyant." Campos v. United States, No. 3:24-cv-02023 -N, 2025
WL 2592523 , at *2 (N. D. Tex . Sept. 8, 2025) (citing Cooks v. United States, 461 F.2d 530, 532
(5th Cir. 1972)). Instead, "an attorney 's performance is based on the law as it existed at the time
of the representation." Id. (citing Lockhart v. Fretwell, 506 U.S. 364, 371 (1993)). Simply put, a
lawyer has a responsibility to make "[s]olid, meritorious arguments based on directly controlling
precedent." Id. (citing United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999)).
Here, Petitioner explains his justification for not appealing as relying on the advice of
counsel that there were no non-frivolous claims available to review. (Civ. Dkt. No. 1 at 5) . The§
2255 petition is likely insufficient even with the liberal construction afforded to Petitioner.
However, even assuming Petitioner intended on arguing as such, the ineffective assistance of
counsel fails because he is unable to show prejudice.
First, Petitioner cannot show prejudice because he is unable to establish that, but-for any
error on the part of defense counsel, he would not have pleaded guilty and instead insisted on going
to trial. 	Lee, 582 U.S. at 364. 	As mentioned throughout this Report, § 922(g)(l) remains
constitutional today, and was so during the pendency of Petitioner's district court proceedings.
Thus, even if Petitioner claimed in his§ 2255 petition that he would have insisted on going to trial
instead of pleading guilty, which he did not, the underlying course of conduct in possessing a
firearm still would have been an act in violation of§ 922(g)(l) and illegal.
Second, Petitioner is unable to show prejudice because counsel fail ed to raise the issue of
the constitutionality of § 922(g)(l) during the district court proceedings and/or on direct appeal.
The Fifth Circuit has only recently begun interpreting the constitutionality of § 922(g)(l) as
applied to individual predicate felony offenses and has not yet confronted Petitioner's underlying
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felony convictions. As such, the "law as it existed at the time of the representation[,]" namely §
922(g)(l), 	was 	constitutional 	during 	Petitioner's 	district 	court 	proceedings, 	and 	remains
constitutional today. Campos, 2025 WL 2592523 , at *2. 	Defense counsel was not required to
"anticipate future changes in the law[,]" and Petitioner was not prejudiced by any failure to do so.
Campos, 2025 WL 2592523 , at *2.
Because Petitioner fails to establish the prejudice prong of the Strickland test, the Court
declines to address the deficient performance prong. Carter, 131 F.3d at 463 ; Armstead, 37 F.3d
at 210. Accordingly, Petitioner is unable show ineffective assistance of counsel.
D. 	Bru en Challenge
Petitioner asks this Court to find § 922(g)(l) unconstitutional as applied to him in light of
the Supreme Court's recent ruling in New York State Rifle & Pistol Ass 'n, Inc. v. Bruen, 597 U.S.
1 (2022). (C iv. Dkt. No. 1 at 5-6). A survey of current binding caselaw does not command such a
result, and this Court declines the invitation to do so.
In 2008, the Supreme Court decided a pivotal Second Amendment case in District of
Columbia v. Heller, 554 U.S. 570 (2008). There, the Court found unconstitutional a D.C. law that
prohibited the possession of handguns in the home. 	Id. at 635. 	The Court, after reviewing the
language of the Second Amendment, concluded "that its drafters intended for it to protect 'the right
of law-abiding, responsible citizens to use arms in defense of hearth and home. "' United States v.
Dia z, 116 F.4th 458, 463 (5th Cir. 2024) (quoting Heller, 554 U.S. at 635). 	Justice Scalia
emphasized that the Court's opinion should not be understood to "cast doubt on longstanding
prohibitions on the possession of firearms by felons and the menta ll y ill," and that those regulations
are "presumptively lawfu l. " Heller, 554 U.S . at 626, 627 n.26.
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After Heller, the Fifth Circuit, along with other circuits, developed a two-step approach to
Second Amendment analysis. Diaz, 116 F.4th at 463. 	The first step was to determine "whether
the challenged law impinges upon a right protected by the Second Amendment." 	Id. (quoting
Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016)). In the second step, the court would undertake
a means-end scrutiny to consider whether to apply intermediate or strict scrutiny and then apply
the appropriate scrutiny to the challenged law. Id.
Recently, in Bruen, the Supreme Court took to review a New York state handgun
regulation. S ee New York State Rifle & Pistol Ass 'n, Inc. v. Bruen, 597 U.S. 1 (2022). There, the
Court rejected the two-step framework. Dia z, 116 F.4th at 463 . The Court adopted the first step;
however, instead of continuing to the means-end analysis, "the Court held that, when step one's
requirements are met, the Constitution presumptively protects that conduct." 	Id. at 464. 	The
burden then shifts to the government to "demonstrate that the regulation is consistent with this
Nation's historical tradition of firearm regulation." Bruen, 597 U.S. at 29. This can be done by
showing "how and why the regulations burden a law-abiding citizen's right to armed self-defense."
Id. at 38-39.
Following Bruen, the Fifth Circuit continues to refine Second Amendment analysis,
specifically within the context of§ 922(g)(l). 	The Fifth Circuit has concluded that "[t]he plain
text of the Second Amendment covers the conduct prohibited by § 922(g)(l ). Diaz, 116 F.4th at
469. This is because convicted felons are '" unequivocally among 'the people' 16 protected by the
Second Amendment. "' United States v. Kimbl e, 142 F.4th 308, 311 (5th Cir. 2025) (quoting United
16 Respondent contends that convicted felons do not fall within "the people" protected by the Second
Amendment and cites to the 8th Circuit in support. (Civ. 0kt. No. IO at 19 n.5; see United States v. Jackson ,
110 F.4th 1120, 1129 (8th Cir. 2024)). 	However, this notion has been consistently rejected by the Fifth
Circuit, which is binding on this Court. See Diaz, 116 F.4th at 467; Kimble, 142 F.4th at 311 ; Schnur, 132
F.4th at 867.
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States v. Schnur, 132 F.4th 863, 867 (5th Cir. 2025)). Thus, § 922(g)(l) jurisprudence post-Bruen
focuses on the Government's burden in "identify[ing] a well-established and representative
historical analogue, not a historical twin." Diaz, 116 F.4th at 467 (citing Bruen, 597 U.S. at 24)
(emphasis in original). 	In doing so , the Court considers "whether modem and historical
regulations impose a comparable burden on the right of armed self-defense and whether that
burden is comparably justified." Id. 	However, the Fifth Circuit has cautioned that this analysis
demands a narrower level of specificity than simply categorizing felonies in the most general sense
of the term (any crime punishable by more than one year imprisonment), "without further
consideration of how that right was understood when it was first recognized." 	See id. at 469
("Simply classifying a crime as a felony does not meet the level of historical rigor required by
Bruen and its progeny."). With this in mind, we return to the present case.
Petitioner specifically challenges the constitutionality of § 922(g)(l) post-Bruen "as
applied" to him. 17 (Civ. Dkt. No. 1 at 5-6). Respondent argues that Bruen requires affirming the
resulting conviction under§ 922(g)(l) in two ways: (1) by identifying the historical analogue of
slave smuggling; and (2) by demonstrating that Petitioner is a dangerous felon who may be
constitutionally disarmed. (Civ. Dkt. No. 10 at 19 , 25).
Since Bruen, the Fifth Circuit has attempted to elucidate § 922(g)(l) analysis by deciding
a number of cases involving several different predicate felony offenses. In United States v. Diaz,
the court found § 922(g)( 1) constitutional as applied to the predicate felony of car theft, identifying
founding era theft laws to punish people "permanently and severely." Diaz, 116 F.4th at 472. In
United States v. Orozco, the court affirmed an as-applied constitutional challenge to the predicate
17 The Fifth Circuit has foreclosed facial challenges to§ 922(g)(l) post-Bruen. United States v. Brown, No.
20-0242, 2025 WL 2231788, at *2 (W.D. La. Aug. 4, 2025) (citing Diaz, 116 F.4th at 4 72 and United States
v. Branson, 139 F.4th 475 (5th Cir. 2025)). As such, only "as applied" challenges in relation to§ 922(g)(I)
continue to develop in the Circuit.
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offense of importing and possessing with intent to distribute marijuana, because "Congress can
categorically disarm individuals convicted of violent felonies like drug trafficking." Orozco, No.
24-50104, 2025 WL 2623429, at *1 (5th Cir. Sept. 11, 2025); see also Kimble, 142 F.4th at 317
(finding that the predicate offense of drug trafficking indicates a threat to public safety and the
orderly functioning of society and is subject to constitutional disarming). 	In United States v.
Schnur, the court affirmed an as-applied constitutional challenge where the predicate offenses
included aggravated battery, robbery, and burglary. Schnur, 132 F.4th at 867,871; see also United
States v. Garmon, No. 25-50108, 2025 WL 2684013, at *1 (5th Cir. Sept. 19, 2025) (affirming a§
922(g)(l) conviction where predicate felonies included robbery and aggravated assault with a
deadly weapon). 	The aforementioned offenses appear clearly decided in § 922(g)(l) post-Bruen
determinations. However, the Court is unaware of a Fifth Circuit case that addresses the predicate
offenses of conspiracy to harbor aliens within the United States or being found in the United States
after previous deportation under§ 922(g)(l) post-Bruen. 18
The Court acknowledges that current Fifth Circuit precedent is developing within the
confines of§ 922(g)(l). 19 However, the standard for collateral review is significantly higher than
the standard utilized on direct appeal, and predictions will not suffice. See Frady, 456 at 166 ("We
reaffirm the well-settled principle that to obtain collateral relief a prisoner must clear a significantly
18 A district court in the Southern District of Texas, Laredo Division, recently granted a defendant 's motion
to dismiss Count I of the indictment with the predicate felony offense of transportation of an undocumented
alien in violation of 8 U.S.C. § 1324(a)(l)(A)(ii). (See United States v. Concepcion Gerardo Palomares,
Case No. 5:24-cr-8 l l, Dkt. No. 37 (S.D. Tex. Dec. 20, 2024)). There, the Honorable Judge John A. Kazen
found the Government had not identified a sufficient historical analogue in comparing the predicate offense
to early laws banning smuggling slaves. (Id. at 4-6). The case is currently on appeal at the Fifth Circuit.
See Fifth Cir. Case No. 25-40026.
19 Current Fifth Circuit jurisprudence surrounding § 922(g)(l), post-Bruen, has effectively taken on a
felony-by-felony dissection, and the nuance of such is acknowledged in the steady progression of published
caselaw. 	See Orozco, 2025 WL 2623429, at *2 ("Needless to say, this scattershot Second Amendment
approach gives no clear test to district courts, and, worse, gives no adequate notice to Americans who wish
to possess firearms legally, withoutjeopardy offelony prosecution and jail.") (Higginson, J. , concurring).
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higher hurdle than would exist on direct appeal."); United States v. Jones, 88 F.4th 571 , 572 (5th
Cir. 2023) ("To demonstrate plain error, [Petitioner] must show a clear or obvious error that
affected his substantial rights.") (citing Puckett v. United States, 556 U.S. 129, 135 (2009)).
Petitioner is unable to identify a binding authority that addresses his case or that there was
'"error in the straightforward application of' existing cases" that could establish his conviction
under § 922(g)(l) was clear error, nor can he overcome the "significantly higher" standard, here,
on collateral review. 	See United States v. Cabello, 33 F.4th 281, 291 (5th Cir. 2022) (explaining
that, in the plain error context, a "' defendant need not show that the specific factual and legal
scenario has been addressed[,]'" but that there is "'error in the straightforward applications of'
existing cases.") (citing United States v. Vargas-Soto , 700 F.3d 180, 182 (5th Cir. 2012)); see also
United States v. McGavitt, 28 F.4th 571, 577 (5th Cir. 2022) ("In this circuit, a ' lack of binding
authority is often dispositive in the plain error context."') (citing United States v. Gonzalez, 792
F.3d 534, 538 (5th Cir. 2015)). This claim fails as well.
E. 	Hearing
"A motion brought under 28 U.S.C. § 2255 can be denied without a hearing only if the
motion, files, and records of the case conclusively show that the prisoner is entitled to no relief."
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (citing United States v. Austen, 632
F.2d 478, 482 (5th Cir. 1980)). Petitioner's claims, lack of jurisdiction and actual innocence, are
not based on a factual dispute; rather, they appear to depend solely on the constitutionality of §
922(g)(l) post-Bruen and, therefore, a hearing is not needed to resolve those claims. 	Moreover,
Petitioner has not asserted any "new evidence" to be considered under the actual innocence
standard.
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Therefore, 	Petitioner's 	claims 	are 	procedurally 	barred 	from 	consideration 	and 	an
evidentiary hearing is not required to address them.
IV. 	CONCLUSION
Recommended Disposition
After careful review of the record and relevant law, the undersigned recommends that
United States' Motion for Summary Judgment (Civ. Dkt. No. 10) be GRANTED and Petitioner's
§ 2255 motion (Civ. Dkt. No. 1) be DENIED. It is further recommended that Petitioner' s§ 2255
motion (Civ. Dkt. No. 1) be DISMISSED with prejudice, and the case be closed.
Certificate of Appealability
It is recommended that the District Court deny a certificate of appealability. An appeal
may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless
a circuit justice or judge issues a certificate of appealability." 	28 U.S.C. § 2253(c)(l)(A). 	The
Rules Governing Section 2255 Proceedings instruct that the District Court "must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant." R. Gov. Sec. 2255
Proceedings 11. Because the undersigned recommends the dismissal of Petitioner' s§ 2255 action,
the Court must address whether Petitioner is entitled to a certificate of appealability (COA).
Petitioner is entitled to a COA "only if the applicant has made a substantial showing of the
denial of a constitutional right." 	28 U.S.C. § 2253(c)(2). 	"The COA determination under §
2253(c) requires an overview of the claims in the habeas petition and a general assessment of their
merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). For claims denied on their merits, "[t]he
petitioner must demonstrate 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 (2000); see
also United States v. Jones , 287 F.3d 325, 329 (5th Cir. 2002) (applying the Slack standard to a
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COA determination in the context of a § 2255 proceeding). 	Petitioner may also satisfy this
standard by showing that "jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-El, 537 U.S. at 327; see also Jones , 287 F.3d at 329.
For claims that a district court rejects solely on procedural grounds, the petitioner must show both
that "jurists ofreason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling." Slack, 529 U. S. at 484.
Based on the record and for reasons explained, Petitioner would not be able to demonstrate
that reasonable jurists would find it debatable whether the district court was correct in finding
Petitioner' s claims were procedurally barred.
Accordingly, Petitioner is not entitled to a COA.
Notice to the Parties
The Clerk shall send copies of this Report and Recommendation to Petitioner, who has
fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §
636(b)(l)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file timely written
objections shall bar an aggrieved party from receiving a de nova review by the District Court on
an issue covered in this Report and, except upon grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
The Clerk shall provide copies of this order to Petitioner and counsel for Respondent.
DONE at McAllen, Texas, on 8th day of December 2025. 	--~-------
~~sUnited States Magistrate Judge
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