Lozano-Salazar v. United States Of America

UN IT ED ST ATES DISTRICT COU RT
SOU TH ERN DIS TRI CT OF TEXAS
MCALL EN DIVISION
JOSE FELIPE LOZANO-SALAZAR,
Petitioner,
vs.
UNITED STATES OF AME RICA,
Respondent.
§
§
§ 	CIV. NO. 7:25-00196
§
§ 	CRIM. NO. 7:22-01378-5
§
§
REPORT A ND REC OMM ENDATION
Petitioner, a federal prisoner proceeding pro se, initiated this action by filing a Motion to
Vacate, Set Aside, or Correct Sentence ("Petitioner 's Motion ") pursuant to 28 U.S.C. § 2255 on
April 28, 2025. 	(C iv. Dk t. 	o. 1). 1 This case was subsequently referred to the undersigned
magistrate judge for report and recommendati on pursuant to 28 U.S.C. § 636(b) and L.R. 72.
Within Petitioner's Motion, Petitioner alleged ineffec ti ve assistance of counsel in violation
of the Sixth Amendment of the U.S. Constitu ti on. (C iv. Dk t. No. 1 at 5). For the reasons discussed
further in this Report and Recommendation, the undersigned concludes that Petitioner 's Motion
should be denied because he has voluntaril y withdrawn his § 2255 petition. 	(See Civ. Dkt. No.
17). 	Further, the undersigned concludes the 	di smissal should 	be with prejudice because
Petitioner 's claims are now time barred.
Therefore, after careful review of the filings and relevant law, the undersigned recommends
Peti ti oner 's Motion (Civ. 0kt. 	o. 1) be D ENIED. It is further recommended that Petitioner's
Moti on (Civ. Dkt. 	o. 1) be DISMISSED with prejudice, and the case be closed.
1 C itations to Criminal Docket Entries pertain to United Sta tes v. Lozano-Sa lazar, Case No. 7:22-c r- 1378-
5; citations to C iv il Docket Entries pertain to fil ings with in t hi s hab ea s proceed in g.
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Finally, the undersigned recommends Pet itioner's Motion for Leave to File Amended §
2255 Motion (Ci v. Dk t. No. 15) and Motion to Amend § 2255 Motion (Ci v. Dkt. 	o. 16) be
DENIED as moot.
I. 	BAC KGRO UN D
On February 2 1, 2023, a grand jury in McAllen Division of the Southern Distri ct of Texas
indicted Petitioner on three counts:
(1) 	knowingly and intentionally conspiring with other persons to possess with
intent to distribute a controlled substance, namely 5 kilograms or more of a mixture
or substance containing a detectable amount of cocaine, a Schedule II controlled
substance, in v io lati on of21 U.S.C. §§ 846, 84l(a)( l) , and 84 l (b)(l)(A).
(2) 	knowingly and intentionally possessing with intent to distribute a controlled
substance, an amount less than 500 grams, approximately 486 grams, of a mixture
or substance containing a detectable amount of cocaine, a Schedule II controlled
substance, in v io lation of2 1 U.S.C. §§ 841 (a)(I), 84l (b)(l )(C), and 18 U.S.C. § 2.
(3) 	knowingly and intentionally possess in g with intent to distribute a controlled
substance, an amount more than 500 grams, appro xi mately 4 kilograms, of a
mixture or substance containing a detectable amount of cocaine, a Schedule II
controlled substance, in violation of 21 U.S.C. §§ 841 (a)(l) , 84l(b)(l)(B) and 18
U.S.C. § 2.
(See Crim. Dk t. 	o. 27).
Petitioner subsequently pi ed guilty to Count 2 of the indictment, pursuant to a signed plea
agreement, on February 20, 2024. 	(Crim. Dkt. 	o. 354 at 44: 19-22; see Crim. Dkt. 	o. 257). 2
Petitioner was sentenced on May 14, 2024, to thirty-seven (3 7) months of custody in prison to be
followed by a three -year term of supervised release. (C rim. Dkt. 	o. 355 at 20: 1-14; see Crim.
Dkt. No. 304). 3 Additionally, the sentencing court waived the fine and implemented a $ 100 special
assessment. (Crim. Dkt. 	o. 355 at 20: 12-14).
2 Crim . Dkt. No. 354 is a transcript of the re-arraignment held on February 20, 2024, before the Honorable
Magistrate J udge Scott H ac ker.
3 Crim. Dkt. 	o. 355 is a transcript of the sentencing hearing held on May 14 , 2024, before the Honorable
Distri ct Jud ge Micaela Alvarez.
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Petitioner failed to appeal his conviction to the Fifth Circuit Court of Appeals. 	In lieu of
direct appeal, Petitioner fi led the present habeas petition pursuant to 28 U .S.C. § 2255 on April 28,
2025, claiming that he requested that hi s attorney file a notice of appeal, but the attorney refused.
(C iv. Dkt. 	o. 1 at 5). The Court ordered Petitioner 's counsel to file an affidavit, responsive to the
allegations in Petitioner 's Motion, on May 9, 2025. (Ci v. Dkt. No. 2). On May 22, 2025, Mr. Juan
Francisco Tinoco, Petitioner 's counsel for the district court proceedings, fi led an affidavit with the
Court, disputing the a ll egations within Petitioner's Mot io n. 	(Civ. Dkt. No.4). 	The Court then
ordered Respondent to fi le an answer. (C iv. Dkt. 	o. 5).
Respondent fi led United State s' Motion for an Order to Show Cause or, in the Alternative,
for an Evidentiary Hearing on August 14, 2025. 	(Civ. Dkt. 	o. 8). 	Therein, Respondent
questioned whether Petitioner's Motion was completed and signed under penalty of perjury by
Petitioner as opposed to his daughter, as required by the Rules, and requested that the Court order
Petitioner to show cause for why Petitioner 's Motion should not be dismissed for lack of
jurisdiction. (Ci v. 0kt. No. 8 at 1-2, 8); see R. Gov. Sec. 2255 Proceedings 2(b)(5). As a result,
the Court filed Order to Show Cause on October 23, 2025, ordering Petitioner to show cause at an
evidentiary hearing and appointing counsel, Zelene Za leta, to represent him at said hearin g. (Civ.
Dkt. No. 13; see Civ. Dkt. No. 14). Peti ti oner, through Counsel, filed Motion for Leave to File
Amended § 2255 Motion (Civ. Dkt. No. 15) and Motion to Amend § 2255 Motion (Civ. Dkt. No.
16) on December 5, 2025. 	The hearing was scheduled for December 12 , 2025.
II. WITHDRAWAL
The Rules Governing Section 2255 Proceedings do not provide specific procedures for
Petitioner to voluntarily withdraw the § 2255 petition. However, Rule 12 allows the district court
to apply the Federal Rules of Civ il Procedure "to the extent that they are not inconsistent with any
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statutory provisions or these rules[.]" R. Gov. Sec. 2255 Proceedings 12 . Federal Rule of Civil
Procedure 41 provides that "the plaintiff may dismiss an action without a court order by filing ...
a notice of dismissal before the opposing party serves either an answer or a motion fo r summary
judg men t. " Fed. R. Civ. P. 41 (a)( l )(A)(i). Wi th no identified conflict, R ul e 41 governs.
The Court held a hearing on Decemb er 12 , 2025, fo r the limited scope of the Motion to
Show Cause. There, Petitioner's Counsel explained that she discussed, with Petitioner, Petitioner's
Motion, the viability of said claims, and the procedures at a potential evidentiary hearin g. (Show
Cause 	Hr 'g at T im e 	Stamp 	2:24:21 -47).4 	In 	response, 	Petitioner told Counsel that 	his
circumstances had mate ri ally changed, as he now qua li fies fo r a halfway house with an opportunity
to spend time at home, and because hi s health began to deteriorate. 5 (Id. at 2:24:47-2:25:19). As
such, Petitioner told Counsel he no lo nger wished to go fo rward with the § 2255 Motion. (Id. at
2:25: 19-23). Respondent had no objection. (Id. at 2: 15:29-3 1).
The Court then placed Petitioner under oath. 6 (Id. at 2:25:45-53). Petitioner testified that
the Court had his true and correct name, and that he was currently taking medications for high
bl ood pressure, cholesterol, and diabetes. (Id. at 2:26:09-34). 	P et it io ner further testified that he
understood everything to that point. 	(Id. at 2:26:48-52). 	Petitioner confirmed that he wished to
withdraw Petitioner 's Mo ti on and that he had discussed such with Counse l. 	(Id. at 2:27:07-3 1).
Petition er testified that, even though the one-year limitations period had passed, and he would not
4 Citations to the Show Ca use Hearing held in t hi s Court on December 12, 2025, are c itations to the audio
recording from th e hearing, id enti fi ed by the r es pective time s tamp .
5 The Federal Bureau of Priso ns i nm ate locator in dicates that Pet itioner is scheduled for release from Fort
Worth 	FMC 	by 	July 	30, 	2026. 	See 	Feder al 	Bureau 	of 	Prisons, 	Fi nd 	an 	Inmate,
https://www.bop.gov/i nm ateloc/ (last visited December 16 , 2025).
6 Petitioner was origina ll y scheduled to appear by Zoo m conference call, but the BOP facility was unable
to succe ssfu ll y log into the Zoom conference ca l l. 	Instead, the BOP faci lity ca ll ed into the hearing and
Pet itioner was present by teleconference throug h the Zoom application, without objection of either Co unsel.
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be able to file again later, he still wished to withdraw Petitione r' s Motion. (Id. at 2:27:38-2:28:03).
Then, Petitioner, upon questioning by Counsel, confirmed that they had discussed the possible next
steps, the medical placement faci li ty, the consequences of this action, and that he still wished to
move forward with the withdrawa l. 	(Id. at 2:28:07-58). 	Fin al ly, Counsel, with agreement from
Peti ti oner, also wished to withdraw the Motion fo r Leave to Amend and the Motion to Amend.
(Id. at 2:29:3 1- 59).
The same day, Petitioner filed Notice of Withdrawa l of Motion Under 28 U.S.C. § 2255.
(Ci v. Dkt. No. 17). Therein, P et itioner corroborated the circumstances to which he testified at the
hearing. 	First, Petitioner "has been granted early placement in a Bureau of Prisons Residential
Reentry Center[.]" 	(Id. at 1). 	Second, due to deteriorating medical conditions, Petitioner "no
longer wishes to pursue the motion" and requests that the Court · 'withdraw the § 2255 motion in
fu ll and close the associated civ il action." (Id. ). Fina ll y, Petitioner claimed to have both knowingly
and voluntarily submitted the withdrawal. (Id. ).
The hearing testimony and Notice of Withdrawal came before Respondent served an
answer or motion for summary judgment. 	See Fed. R. Ci v. P. 4 l (a)(l)(A)(i). 	Accordingly, the
Court finds Petitioner intended to withdraw Petitioner 's Motion kn owingly and voluntarily, and
with no objections having been fi led by Respondent, the Court concludes Petitioner 's Motion
should be withdrawn and dismissed.
Ill. STATUTE OF LIMITATIONS
Section 2255 motions are subject to a one-year statute of limitations period under the
Antiterrorism and Effec ti ve Death Penalty Act of 1996 ("AEDPA"). United States v. Sanchez, 	o.
CR. 92-200, 2006 WL 3254476, at* 1 (S. D. Tex. 	ov. 8, 2006) (citing 28 U.S.C. § 2255; Flanagan
v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998)).
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The limitations period shall run from the latest of:
(1) the date on which the judgment of conviction becomes final ;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by such governmental
action;
(3) the date on which the ri ght asserted was in itia ll y recognized by the Supreme
Court, if that right was newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
Applicable here is the date on which the judgment of conviction became final. 	See 28
U.S.C. § 2255(f)(l). 	Judgment was rendered as to Peti ti oner on May 28, 2024. (See Crim. Dkt.
No. 304). 	Thus, Petitioner's conviction became final for purposes of the AEDPA's one-year
limitation period on June 11, 2024. 	See United States v. Plascencia, 537 F.3d 3 85 , 388-89 (5th
C ir. 2008) (noting a conviction becomes final for purposes of§ 2255 when the time for filing a
direct appeal has expired); Fed. R. App. P. 4(b)(1 )(A) (provid in g fourteen (14) days to file a notice
of appeal from the date of the entry of j udgment). As such, Petitioner had until June 11 , 2025, to
file hi s § 2255 petition.
Petitioner filed the § 2255 petition on Apr il 28, 2025. 	(See Civ. Dkt. No. 1). 	Thus,
Petitioner 's Motion was timely filed. 	However, if the District Court adopts the undersigned
magistrate judge's recommendation, dismissing Petitioner's Motion, any subsequent § 2255
petition would be filed outside of the one-year limitations period. 	While a voluntary dismissal
under Rule 41 (a)( 1)(A) is generally without prejudice, dismissal here functions as a dismissal with
prejudice, because Petitioner 's claims will be time barred. 7 See Fed. R. Civ. P. 41(a)(l)(B).
7 Under AEDPA, prisoners have one chance to challenge their convictions through a federal hab eas petition.
Banister v. Davis, 590 U.S. 504, 509 (2020) (citing Magwood v. Pallerson, 561 U.S. 320, 333-34 (2010)).
AEDPA places additional restrictions on "second or successive" appl ications for habeas relief, should
Petitioner seek to file such an appl ication.
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Further, at the Show Cause Hearing, the Court placed Petitioner on notice of the ramifications of
withdraw in g Petitioner 's M ot ion and Petitioner testified that he understood and sti ll wished to
continue forward with the withdrawa l. (Sh ow Cause Hr 'g at Time Stamp 2:27:38-2:28:03).
Accordingly, 	the 	undersigned 	recommends 	Petitioner 's 	Motion 	be 	dismissed 	with
prejudice.
IV. CONCLUSION
Reco mmended Disposition
After careful review of the record and relevant law, the undersigned recommends that
Petitioner 's habeas petition und er§ 2255 (Civ. 0kt. N o. 1) be DENIED.
These restrictions are outlined in 29 U.S.C. § 2244(b):
(I) 	A claim presented in a second o r successive habeas corpus appli cat ion und er
section 2254 that was pre se nted in a prior application sha ll be dismissed.
(2) 	A c laim presented in a second or successive habeas co rpus app li cat ion und er
section 2254 that was not presented in a prior app li cation shall be dismis sed unless-
(A) 	the app li cant shows th at the claim relies on a new rule of constitutional law, made
retroactive to cases on co llater al review by the Supreme Court, that was previously
unava il able; or
(B) 	(i) the factual predicate for the claim co uld not have been discovered previously
through the exercise of due diligence; and
(i i) the facts underlying the claim, if proven and viewed in li ght of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that, but for the
constitutional error, no reasonable factfind er wou ld have fo und the app licant gu il ty of the
unde rl y in g offense .
28 U.S.C. § 2244(b). 	A second or successive petition is one that " I) raises a claim challenging the
petitioner's co nviction or sentence that was or co uld have been raised in an ea rl ier petition, or 2) otherwise
co nstitutes an abuse of w ri t. " Leal Garcia v. Quarterman, 573 F.3 d 2 14, 220 (5th C ir. 2009) (quoting In re
Ca in, 137 F.3 d 234, 235 (5th Cir. 1998)). 	Th is also includes "claims based on a factual predicate not
previously discoverable[.]" Rivers v. Lumpkin, 99 F.4th 2 16 , 220 (5th C ir. 2024) (quoting L eal Garcia, 573
F.3d at 221-22)). Importantl y, for this matter, when a prisoner attempts to submit a second or successive
petition, he must first ob tain an order from the appropriate court of appeals authorizing th e district co urt to
co ns id er the petition. 28 U.S.C. § 2244(b)(3)(A); Banister, 590 U.S. at 509. Thus, a second or successive
petition filed in the distri ct court without first obtaining perm iss ion from the co urt of appeals may "be
immediately dis mi ssed for lack of jurisdictio n." United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
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It is further 	recommended that Petitioner 's § 2255 petition (Ci v. 	Dkt. 	o. 	1) be
DISMISSED with prejudice and the case be closed.
Similarly, the undersigned recommends Petitioner 's Motion for Leave to File Amended §
2255 Motion (C iv. Dkt. No. 15) and Motion to Amend § 2255 Motion (Civ. Dkt. 	o. 16) be
DENIED as moot.
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 Civ il Procedure. Failure to fi le timely written
objections sha ll bar an aggrieved party from receiving a de novo 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 fi ndings and legal conclusions accepted by the District Court.
The Clerk sha ll provide copies of this order to Petitioner and counsel for Respondent.
DO 	Eat McA ll en, Texas, on 18th day of December 2025.
United States Magistrate Judge
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