Garza v. United States of America

MIGUEL GARZA
Petitioner,
vs.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
§
§
§ 	CIV. NO. 7:25-00045
§
UNITED STATES OF AMERICA
Respondent.
§ 	CRIM. NO. 7:22-00302-2
§
§
REPORT & RECOMMENDATION
Petitioner, Miguel Garza, a federal prisoner proceeding prose , initiated this action by filing
a Motion on January 30 , 2025, 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 9, 2025,
Respondent, United States, filed Motion for Summary Judgment and Response. (Civ. 0kt. No. 9).
Petitioner raises six claims of ineffective assistance of counsel in violation of the Sixth
Amendment of the U.S. Constitution. (Civ. 0kt. No. 1 at 2). For the reasons discussed further in
this Report and Recommendation, the undersigned concludes that Petitioner's § 2255 petition
should be denied because his claims are either refuted by the record, conclusory, meritless, or
procedurally barred. Therefore, after careful review of the record and relevant law, the undersigned
recommends that Respondent's Motion for Summary Judgment and Response (Civ. Dkt. No. 9) be
GRANTED and Petitioner's habeas petition under§ 2255 (Civ. Dkt. No. 1) be DENIED.
1 Citations to Criminal Docket Entries pertain to United States v. Miguel Garza, et al., Case No. 7:22-cr-
00302-2; citations to Civil Docket Entries pertain to filings with in this habeas proceeding.
1
United States District Court
Southern District of Texas
ENTERED
December 08, 2025
Nathan Ochsner, Clerk
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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 recommended that the District
Court DECLINE to issue a certificate of appealability.
I. 	BACKGROUND AND PROCEDURAL HISTORY
A. 	Facts and Circumstances of Arrest
Petitioner's arrest came at the conclusion of a lengthy investigation. 	In June of 2020,
agents with the Drug Enforcement Agency (DEA) began investigating the Orlando and Raudel
Solis Drug Trafficking Organization (Solis DTO). 	(Crim. Dkt. No. 147 at 4). Agents identified
high-level coordinators who directed the Solis DTO, and, over the course of the investigation,
agents learned that the Solis DTO controlled several independent smuggling cells. 	(Id. at 5).
Agents subsequently arrested nineteen ( 19) members of the Solis DTO in September of 2021 ,
which caused partial disruption of the Solis DTO. (Id.). As a result, a lower-level smuggling cell
increased its smuggling activity at the helm of Petitioner. (Id.).
On December 1, 2021, agents with Customs and Border Protection (CBP) noted a "red
Chevy Tahoe" at the residence of Petitioner. (Crim. Dkt. No. 147 at 5). Weeks later, on December
18 , 2021 , agents identified the same vehicle attempting to pick up narcotics south of Petitioner's
residence. 	(Id.) . 	When agents responded to the area, "several subjects absconded to Mexico
carrying bundles of narcotics and abandoning the red Chevy Tahoe." 	(Id.). 	On December 28,
2021, CBP agents identified foot patterns, indicative of a recent smuggling event, that originated
from the Rio Grande River and continued toward Petitioner's residence. 	(Id.). 	The tracks
continued further until they came to a stop near a silver GMC pickup, where agents noticed
unmanned aerial vehicles, or drones, in plain view within the interior of the vehicle. (Id.) . That
day, a CBP surveillance team observed an unknown individual, on an ATV, illegally cross into the
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United States carrying an unknown item. (Id.). Petitioner, along with co-defendant Marcos Perez,
drove toward the river on a black ATV and executed an exchange with the unknown individual.
(Id.) . 	After the unknown individual retreated to Mexico, agents confronted Petitioner and
observed a large package fall from the lap of Marcos Perez. 	(Id.) . 	The package was later
identified as bulk currency worth $9,120.00 inside a clear plastic bag, believed to be derived from
the smuggling of narcotics. (Id.) . As a result, Petitioner was arrested but subsequently released
afterwards. (Id.).
During the same time period, agents learned that the Starr County, Texas, Sheriff's Office
(SCSO) received information from an anonymous source that Petitioner had kilograms of cocaine
inside his residence, and that the kitchen cabinets smelled of cocaine. (Crim. Dkt. No. 14 7 at 6).
A search on December 29, 2021 , resulted in the discovery of a vacuum sealer, "food saver bags
consistent with the packaging of narcotics," two digital scales, two radios, and a drone with
equipment to operate it was found in the GMC pickup. 	(Id.). 	Data extracted from the seized
drone revealed twenty-six (26) flights conducted during the ten (10) days prior to the date of the
currency seizure, and the flight paths were consistent with the scouting of law enforcement along
U.S. Highway 83 near the Rio Grande River. 	(Crim. Dkt. No. 147 at 6) . Additionally, in an
analysis of the telephone seized from Marcos Perez, agents discovered that Perez received
firearms from Petitioner, who is a convicted felon prohibited from possessing, selling, or
transferring a firearm. (Id. at 7).
Based on the suspected flight paths, CBP agents monitored the location along the Rio
Grande River for smuggling activities. (Crim. Dkt. No. 147 at 7) . On February 9, 2022, at around
4:20 a.m. , CBP observed individuals in Mexico congregating near the border in the latter location.
(Id. at 7) . Later that morning, DPS troopers spotted a GMC Yukon pull off the roadway, and upon
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approaching to assist, the Yukon conducted a U-tum. 	(Id.). 	The troopers subsequently initiated
a traffic stop on the GMC Yukon. (Id.). Petitioner was the sole occupant of the vehicle, titled in
his wife's name, and told officers he was searching for his 18-year-old female cousin. (Id.). After
being released from the traffic stop, Petitioner traveled toward the same location CBP agents had
been investigating suspected narcotics smuggling. (Id.) . Shortly thereafter, at around 4:50 a.m. ,
CBP agents observed three individuals cross into the U. S. from Mexico with two backpacks, and
co-defendant Seferino Garza walking south from the interior of the U.S. who then retrieved the
backpacks before the individuals returned to Mexico. 	(Id.). As agents attempted to confront
Seferino Garza, a foot pursuit ensued and Seferino Garza dropped the backpacks, which contained
twenty (20) bundles, with a gross weight of 23 .50 kilograms (19 .91 net kilograms), of a substance
that yielded positive results for the characteristics of cocaine. (Id.). As a result, Seferino Garza
was arrested and transported to a Border Patrol Station, and he subsequently provided written
consent for agents to search his cellular device. (Id. at 8).
On February 10 , 2022, agents reviewed call logs from the phone seized from Seferino
Garza, and found several phone calls to "Pekas," an alias of Petitioner. 	(Crim. Dkt. No. 147 at
8) . A review of the corresponding phone number associated with Petitioner for February 9, 2022,
revealed thirty-six (36) phone calls with Mexican phone numbers, including Seferino Garza.
(Id.) .
On March 5, 2022, SCSO deputies responded to a 911 call of shots being fired near
Petitioner's residence. (Crim. Dkt. No. 14 7 at 8). There, Ruben Bazan told officers he observed
a vehicle being loaded with narcotics on his property and attempted to stop the vehicle from being
loaded. 	(Id.). 	Bazan alleged that as he approached the vehicle, it accelerated towards him, and
that he fired his weapon at the driver. 	(Id.). 	Witnesses heard screams coming from Petitioner's
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residence and observed an individual unloading packages from a vehicle and spraying the vehicle
with water. (Id.) . Deputies made contact with Petitioner, who was cleaning his carport. 	(Id.) .
Blood was visible on the ground, and Petitioner admitted that his cousin was shot several times
and showed up at his residence. 	(Crim. Dkt. No. 147 at 8). 	Petitioner claimed the cousin was
transported to the hospital, but deputies were unable to locate the cousin, the alleged load vehicle,
or any narcotics. (Id.) .
As part of the on-going narcotics investigation, federal agents set up a pole camera to
overlook Petitioner's residence. On June 24, 2022, agents discovered the camera had received
multiple gunshots from below. 	(Crim. Dkt. No. 147 at 9) . Footage from the camera displayed
Petitioner shining a flashlight directly at the pole camera to obscure its view, and, shortly after
Petitioner and an unknown individual exited the view of the camera, the camera was shot. (Id.).
This resulted in $7,320.00 worth of damage. (Id.) .
An arrest warrant was issued as to Petitioner and Marcos Perez on September 7, 2022.
(Crim. Dkt. No. 147 at 9). 	On September 22 , 2022, ATF agents, DEA agents, and the U.S.
Marshal's service executed a search and arrest warrant at Petitioner's residence. (Id.). The search
revealed: eleven ( 11) rounds of .45 ACP, caliber ammunition; three (3) rounds of 12-gauge, caliber
ammunition; $4, 114 .00 in U.S. currency; 2.3 grams of suspected crack cocaine; 94 .1 grams of
suspected cocaine; and 465 .5 grams of suspected marijuana. (Id.). 	While in custody, Petitioner
claimed the ammunition was for dove hunting, and that he had a few ounces of cocaine in the
kitchen, but that if agents could not locate the cocaine, Petitioner had sold it already. 	(Id.).
Further, Petitioner cautioned that he "was a Valluco gang member and does not mess around[,]"
and threatened to harm a DEA agent if he were to get out and see the agent at a club. (Id.).
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After reviewing the investigative material, Petitioner's role in the offense was classified as
that of a coordinator/distributor of narcotics. 	(Crim. Dkt. No. 147 at 9). 	In arriving at this
conclusion, the presentence investigation report (PSR) referenced the February 9, 2022, attempted
narcotics 	smuggling 	wherein 	Petitioner 	coordinated 	with 	Seferino 	Garza 	and 	unknown
individuals to smuggle 19 .91 kilograms of cocaine. (Id.).
B. 	District Court Proceedings
On September 7, 2022, a grand jury indicted Petitioner in the Southern District of Texas,
McAllen Division. (Crim. Dkt. No. 30). Petitioner was indicted on four counts as follows:
(1) 	From on or about December of 2021 to on or about June 11 , 2022, Petitioner
did knowingly and intentionally conspire and agree with other persons to possess
with intent to distribute a controlled substance, namely five (5) kilograms or more
of a mixture or substance containing a detectable amount of cocaine, a Schedule II
controlled substance, in violation of21 U.S.C. §§ 846, 841(a)(l), and 841(b)(l)(A);
(2) 	On or about February 9, 2022, Petitioner did knowingly and intentionally
possess with intent to distribute a controlled substance, namely five (5) kilograms
or more, that is approximately twenty-three (23) kilograms of a mixture or
substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§
841(a)(l), 841(b)(l)(A) and 18 U.S.C. § 2;
(3) 	On or about December 28 , 2021 , Petitioner did attempt to transport
monetary funds, namely approximately $9,921.00 in United States currency, from
Mexico into the United States with the intent to promote the carrying on specified
unlawful activity, that is , the distribution of a controlled substance, all in violation
of 18 U.S.C. §§ 1956(a)(2)(A), 2;
(4) 	On or about June 12, 2022, Petitioner did corruptly attempt to alter, destro y,
mutilate, and conceal a record, document, or other object, or attempt to do so , with
intent to impair its integrity and availability for use in an official proceeding, in
violation of 18 U.S.C. §§ 1512(c)(l), 2.
(Crim. Dkt. No. 30 at 1-2). 	Subsequently, the Honorable Magistrate Judge Diana Song
Quiroga issued a bench warrant for Petitioner's arrest. 	(Crim. Dkt. No. 34). The arrest warrant
was executed on September 22 , 2022. (Crim. Dkt. No. 35). 	Petitioner's initial appearance was
held before the Honorable Magistrate Judge Scott Hacker, where Petitioner requested court
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appointed counsel. The court appointed Santos Maldonado as court-appointed counsel. (See Crim.
Dkt. No. 38). 	Days later, on September 26, 2022, Petitioner moved to substitute Attorney
Christopher Sully ("Counsel") as counsel, which the court granted. (Crim. Dkt. No. 48-1).
On December 13 , 2022, a second superseding indictment was handed down by the grand
jury, altering the dates of the first count to September of 2018, to September 22 , 2022, and adding
a fifth count:
(5) 	On or about September 22, 2022, having been convicted of a crime
punishable by imprisonment for 	a term 	exceeding 	one 	year, Petitioner did
knowingly and unlawfully possess in and affecting interstate and foreign commerce
any firearm or ammunition, namely eleven (11) rounds of .45 ACP, caliber
ammunition, and three (3) rounds of 12-gauge, caliber ammunition, in violation of
18 U.S.C. §§ 922(g)(l), 924(a)(2).
(Crim. Dkt. No. 93).
On October 22 , 2023 , Petitioner signed a plea agreement. 	(Crim. Dkt. No. 130). 	In
exchange for Petitioner's guilty plea as to Count One of the Second Superseding Indictment, the
Government would recommend a two-level reduction for acceptance ofresponsibility pursuant to
U.S.S.G. § 3El.l(a) and recommend that the remaining counts of the second superseding
indictment be dismissed at the time of sentencing. (Id.).
Petitioner pled guilty at his re-arraignment 2 on November 2, 2023, before the Honorable
Magistrate 	Judge 	Scott Hacker. 	There, the 	court 	questioned 	Petitioner 	about 	Counsel's
performance before accepting his plea:
2 Petitioner was originally set to plead guilty, pursuant to the signed plea agreement, at a pretrial conference
held on October 23 , 2023 , before Magistrate Judge Hacker. (Crim. 0kt. No. 186). However, during the
factual stipulation, the Parties disputed whether Petitioner was to agree to facts implicating co-defendant
Marcos Perez. Judge Hacker deferred to District Judge Alvarez, who, on October 26, 2023, took the issue
under advisement to examine the communications between counsel for Petitioner and counsel for the
Government. (Crim. 0kt. No. 187). After review, on October 31, 2023 , Judge Alvarez concluded that, in
fact, Petitioner had not agreed to the facts incriminating co-defendant Marcos Perez, as proffered by the
Government. As such, the matter was referred back to Judge Hacker to conclude the Rule 11 Proceedings
without the additional, supplementary language. 	(Crim. 0kt. No. 188). 	On November 2, 2023, Judge
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THE COURT: [] Mr. Garza, have you had enough time to discuss your case with
Mr. Sully?
DEFENDANT GARZA: Yes , Your Honor.
THE COURT: Are you satisfied with his legal representation?
DEFENDANT GARZA: Yes , Your Honor.
(Crim. Dkt. No. 186 at 14:12-17).3
Next, the court explained what a conspiracy is, and further explained the charge:
Now, the count specifically reads from on or about September of2018 until
on or about September 22nd, 2022, in the 	Southern District of Texas and
jurisdiction of the Court, that you and another did knowingly and intentionally
conspire and agreed together with other persons known and unknown to the grand
jurors to possess with the intent to distribute a controlled substance. 	It says the
controlled substance involved was five kilograms or more of a mixture or substance
containing a detectable amount of cocaine, a Schedule II controlled substance, in
violation of Title 21 USC Section 846, and 84l(a)(l) and (b)(l)(A).
(Crim. Dkt. No. 186 at 15 :7-18).
The court then explained what the Government must prove under the cited provisions. (Id.
at 15 : 19 - 16: 1). 	Petitioner testified that he understood the charge, and that he had no questions
about the charge. (Id. at 16 :15-20). The court explained that, though Petitioner retained Mr. Sully
as counsel, Petitioner still had the right to have an attorney appointed to represent him throughout
the case. (Id. at 19: 19-20:3). The magistrate judge further expounded on Petitioner's rights, such
as pleading "not guilty", persisting in that plea of "not guilty", and going to trial before a jury. (Id.
at 20 :8-11). 	If Petitioner requested a trial, Petitioner would have thirty (30) days to prepare for
such trial with counsel. 	(Id. at 20:11-12). 	Further, the burden would be on the Government to
prove guilt based on proof beyond a reasonable doubt, and, at trial, Petitioner would have the right
to confront witnesses for the Government, to present evidence, and to testify or, in the alternative,
Hacker conducted the re-arraignment of Petitioner, who ultimately pied guilty pursuant to the plea
agreement. (Crim. 0kt. No . 189).
3 Dkt. No . 186 is a transcript of the first pretrial conference held on October 23 , 2023.
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exercise the right to remain silent. (Id. at 20: 12 - 21 :7). Petitioner testified that he understood those
rights, and that he would be giving them up by pleading guilty. (Id. at 21 :8-22: 1). Despite the
warnings, Petitioner wished to move forward with the guilty plea. 	(Id. at 22 :4-10). 	Further,
Petitioner testified that he spoke with Counsel regarding the punishment he would face if pleading
guilty. (Id. at 22: 13 -17). Nevertheless, the court reiterated that Petitioner was facing a mandatory
minimum sentence of ten (10) years in prison and a maximum of life in prison. (Id. at 22:20-23).
Petitioner testified that he discussed the sentencing guidelines with his counsel. 	(Crim. Dkt. No.
186 at 25: 12 -16). The court cautioned that the district court does not have to follow the guidelines;
rather, the range is an "estimate[,] not a promise." (Id. at 26 :23-27 :2). And, if the District Judge
were to find a different Guideline range than the one identified by Counsel, Petitioner would not
be able to withdraw the guilty plea on that basis. (Id. at 27:7-8). Again, Petitioner testified that he
understood everything, and that he had no questions to that point. (Id. at 27 :9-10).
Next, the court discussed the plea agreement:
Now, to summarize your plea agreement with the Government, it states that you're
agreeing to plead guilty to Count 1 of the Second Superseding Indictment, and in
return, the Government says it will recommend that your Guideline offense level
decrease by two levels under Section 31.1 A if you clearly demonstrate acceptance
of responsibility, and the Government, says it will recommend that the remaining
counts of your Second Superseding Indictment and Superseding Indictment be
dismissed at the time of sentencing.
(Crim. Dkt. No. 186 at 28 :19-29:3). Petitioner confirmed that is what he understood the agreement
to be with the Government, and claimed nothing else was promised outside of the written plea
agreement. (Id. at 29:4-10). The magistrate judge warned Petitioner that the court is not required
to follow the agreement and, if the court declines to follow the agreement, Petitioner would be
unable to withdraw the guilty plea. (Id. at 29: 11-17).
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Finally, Petitioner testified that no one forced him, coerced him, or threatened him to plead
guilty. (Crim. Dkt. No. 186 at 31: 19-23). Petitioner claimed he entered the plea of guilty freely
and voluntarily. 	(Id. at 32:1-4). And Petitioner affirmed he was pleading guilty because he did
what the Government accused him of. (Id. at 32:7-11). To reiterate, the court advised:
And the point is , nothing that I've covered with you today should have been
a surprise to you. You should have discussed all of these areas with your attorney
before seeing me. That's important in making a knowing and voluntary plea. 	So ,
if for some reason you don't remember discussing something with your attorney
that I've covered with you today, that's okay. Answer the next question no , and I'll
give you more time to speak with your attorneys. 	You can go over the areas you
don't remember covering with the attorney. 	You can ask questions, and I'll just
bring you back a little later to see if you still want to plead guilty.
(Crim. Dkt. No. 186 at 33:10-21).
Petitioner testified that he had discussed everything covered by the court with his attorney
before seeing the magistrate judge. (Id. at 33:22-34:1).
After agreeing to the factual stipulation ,4 the court accepted Petitioner's guilty plea. (Crim.
Dkt. No. 189 at 7:22-8:4).5 	The magistrate judge's final report and recommendation as to
Petitioner 's guilty plea was adopted by the district court on November 27 , 2023 . (Crim. Dkt. No.
143).
That day, the court ordered a Presentence Investigation Report (PSR) to be completed.
(Crim. Dkt. No. 139). 	Petitioner filed an Acceptance of Responsibility Statement on January 3,
4 After the previous ly mentioned factual dispute (s ee s up ra note 2) was resolved, Petitioner ultimately
agreed to the following facts: Between September of2018 and September 22, 2022, Petitioner entered into
an agreement with Seferino Garza to possess with intent to distribute a controlled substance, namely
cocaine. 	(Crim. Dkt. No. 186 at 34). 	On February 9, 2022, Petitioner was scouting and conducting
surveillance for law enforcement when Seferino Garza picked up two backpacks containing cocaine from
co-conspirators while maintaining telephone contact with him. 	(Id. at 35). 	Seferino Garza was
apprehended, and 19 kilograms of cocaine were recovered from the backpacks. (Id .; Crim . Dkt. No. 189 at
6-7). Any mention of the disputed facts, namely facts implicating co-defendant Marcos Perez, were omitted
from the factual stipulation.
5 0kt. No. 189 is a transcript of the re-arraignment held on November 2, 2023.
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2024, wherein Petitioner detailed his actions in the charged offense, accepted responsibility, and
apologized for said actions. (Crim. Dkt. No. 149). The final PSR was filed the same day. (Crim.
Dkt. No. 147). In the PSR, the Probation Officer (PO) found the base offense level of Count I to
be thirty-two (32), and added a two-level increase because Petitioner was an "organizer, leader,
supervisor, or manager" in the offense, but then incorporated a two-level decrease for acceptance
of responsibility, resulting in a total offense level of thirty-two (32). (Crim. Dkt. No. 147 at 11-
12). 	The PO calculated a total criminal history of six, which placed Petitioner in the criminal
history category of III. (Id. at 15) . The violation carried a minimum term of imprisonment of ten
(10) years, and a maximum of life. (Id. at 20). Based on this information, the guideline range was
151 to 188 months, subject to an additional one-level decrease for acceptance of responsibility if
moved for by the Government, which would shift the range to 135 to 168 months. (Id. at 21).
Additionally, the PSR noted a guideline term of supervised release for five (5) years, as required
by law. (Id.).
Petitioner filed objections to the PSR on December 12 , 2023. 	(See Crim. Dkt. No. 146).
First, Petitioner objected to the role adjustment, arguing there is no evidence that he coordinated
or organized the operation, nor that he recruited Seferino Garza. 	(Crim. Dkt. No. 146 at 1).
Moreover, Petitioner claimed his limited role should qualify for a mitigating role, and that there is
insufficient evidence that Petitioner directed a lower-level smuggling cell. (Id.). Next, Petitioner
objected to the acceptance of responsibility points, arguing that he should qualify for three points
because he pled guilty, signed an acceptance of responsibility statement, and saved the government
and Court time and resources. 	(Id. at 2). 	Third, Petitioner objected to the inclusion of the pole
camera damage, as the footage does not clearly show who shot it, and, in any event, there is no
evidence that Petitioner knew it was a law enforcement camera. (Id.). Finally, Petitioner objected
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to the spelling of his wife's name, and reserved the right to argue for a downward variance to the
minimum sentence of 120 months. (Id.) .
An addendum to the PSR was filed on January 3, 2024, which responded to Petitioner's
objections. (Crim. Dkt. No. 148). The PO affirmed that, given the quantity and type of narcotics
involved, a mitigating role adjustment was not appropriate. (Id. at 1). The PO revised the PSR to
include the acceptance ofresponsibility points, corrected the spelling of Petitioner 's wife 's name,
deferred the veracity of the report involving the pole camera damage to the district court, and
deferred any additional factors for departure or variance to the court. (Id. at 1-2).
On January 17, 2024, Petitioner was sentenced by the Honorable District Judge Micaela
Alvarez. 	There, Petitioner testified that he received and reviewed the PSR with his attorney.
(Crim. Dkt. No. 174 at 2:22-24).6 The Government moved for-and the court granted- 	a third
acceptance ofresponsibility point, resulting in a range of 135 to 168 months. (Id. at 3:1-4). Then,
Petitioner's Counsel again objected to Petitioner's role 	in the offense. 	(Id. at 3:10- 11) .
Specifically, Petitioner contended that he was "basically doing counter-surveillance[,]" and the
court should "either consider him a minor participant or at least not assess the aggravating role[.]"
(Id. at 3: 11 - 19). In doing so , Petitioner requested the mandatory minimum sentence: 120 months.
(Id. at 3: 19 -20). The court disagreed, emphasizing "there's a lot more here than just him scouting
for a vehicle." (Crim. Dkt. No. 174 at 5:5-6).
The court further justified the enhancement:
And I think there 's much in the report that indicates that he has, I think, a
lot of knowledge about [sic] how these operations work and what was going on
here, what they were doing and that he was trying to use some of that to remove
himself from more direct involvement.
As we know, many times when somebody starts out in this business, they're
the people with hands on with the drugs, and the more you learn, I think, and the
more involved you become, you physically often are a little bit more removed from
6 0kt. No . 174 is a transcript of the sentencing hearing held on January 17, 2024.
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the actual hands on. And I think [Petitioner] had come up to that. He's only getting
a plus two. Quite frankly, it may be the right calculation based on the information
here, but I think knowledge is certainly much more than just a sort of plus two
person here. Of course, I told you one of the factors to be considered, but the Court
does believe that based on all of the information within the Report that the
enhancement is warranted.
(Crim. Dkt. No. 174 at 5:12-6:3).
Judgment was rendered as to Petitioner on January 23 , 2024. (Crim. Dkt. No. 154). The
court adopted the PSR and granted the Government's motion as to acceptance of responsibility,
decreasing the offense level by one. (Crim. Dkt. No. 155 at I). The court sentenced Petitioner to
168 months of imprisonment, which was within the Guidelines' recommended range. 	The court
did not assess a fine but did assess the $100 special assessment. (Crim. Dkt. No. 154).
C. 	Appeal
Petitioner failed to appeal his conviction to the Fifth Circuit Court of Appeals. 	In lieu of
direct appeal, Petitioner filed the present Motion on January 30, 2025, for collateral review under
§ 2255 to vacate, set aside, or correct his sentence. (Civ. Dkt. No. 1).
II. 	SUMMARY OF THE PLEADINGS
A. 	Petitioner's § 2255 Petition
Petitioner sets out the following six constitutional claims of error within his§ 2255 Motion
(Civ. Dkt. No. 1): 7
(1) 	Counsel was ineffective because Counsel did not correctly explain the
ramifications of the plea agreement signed by Petitioner.
7 Petitioner 's pro se petition is entitled to a more liberal construction than those drafted by practicing
attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Hernandez v. Thaler, 630 F.3d 420,
426-27 (5th Cir. 2011) ("It is the substance of the relief sought by a pro se pleading, not the label that the
petitioner has attached to it, that determines the true nature and operative effect of a habeas filing. ").
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(2) 	Counsel was ineffective because he did not bring up the disparity in
sentencing 	between 	Petitioner and 	the 	co-defendants 	during 	the 	sentencing
proceedings.
(3) 	Counsel was ineffective because he did not correctly address the role of
Petitioner in the offense.
(4) 	Counsel was ineffective because he did the PSR challenges on his own,
without taking Petitioner's issues under advisement.
(5) 	Counsel was ineffective because he insisted on downplaying a serious
medical issue Petitioner developed while in pre-trial detention.
(6) 	Counsel 	was 	ineffective 	because 	Petitioner, 	on 	numerous 	occasions,
expressed disservice and a desire to terminate his representation and switch federal
defenders, which went ignored.
(Civ. Dkt. No. 1 at 2).
In support of his first contention, Petitioner claims he did not understand that he would
receive that much time, and that he did not understand the substantial differences between the
likely sentencing ranges upon conviction. (Civ. Dkt. No. 1 at 4) . In the second claim, Petitioner
argues that "Mr. Sully neglected to explain or mitigate significant sentencing disparity between
not just the defendant and his co -defendants, but the defendants and similarly situated defendants."
(Id. at 5). 	Third, Petitioner contends that despite evidence indicating he had a minor role in the
offense, "Mr. Sully did not mitigate [Petitioner' s] role by suggesting or fighting for a minor role
departure." 	(Id.) . Fourth, Petitioner argues that counsel failed to take into account Petitioner's
statements when addressing the PSR challenges. (Id. at 7) . Fifth, Petitioner claims counsel was
ineffective because Petitioner developed a serious MRSA infection during his pre-trial detention
and counsel failed to address such at the sentencing hearing or present expert witnesses to testify
to that effect. (Id. at 7-8). Finally, Petitioner suggests he was the victim of ineffective assistance
of counsel where he tried numerous times to remove counsel from the case but was unsuccessful.
(Id. at 8) . As a result, Petitioner asks this Court to vacate, set aside, or correct his sentence pursuant
to § 2255 . (Id.).
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B. 	Respondent's Motion for Summary Judgment
In response to Petitioner's § 2255 Motion, Respondent filed Motion for Summary
Judgment and Response ("Respondent's Motion") on June 9, 2025. (Civ. Dkt. No. 9). Respondent
claims Petitioner's claims are waived, inadequately pled, and meritless. 	(Id. at 17). 	First,
Respondent argues that Petitioner 's claims that counsel was ineffective prior to his guilty plea for
failing to explain the ramifications of the plea agreement and by not withdrawing from the
representation when Petitioner was dissatisfied must fail because Petitioner's statements under
oath in open court undermine the claims, are conclusory and insufficient, and are wholly
contradicted by the record. (Id. at 24-28). Second, Respondent argues that Petitioner's claim that
counsel did not explain the ramifications of the plea agreement is inadequately pled because
Petitioner makes no showing that counsel's performance was deficient, nor that but-for counsel's
errors he would have pleaded not guilty and instead insisted on going to trial. 	(Id. at 28-32).
Finally, Respondent urges that Petitioner's claims involving the sentencing hearing, namely failing
to address Petitioner's role in the offense, objecting to the PSR without Petitioner's input, not
addressing Petitioner's medical issue, and not raising a sentencing disparity between Petitioner
and his co-defendants, are conclusory and lacking support, and are contrary to the record. (Id. at
32-37). 	As such, Respondent asks this Court to grant the Respondent's Motion, dismiss
Petitioner's § 2255 motion, and deny a certificate of appealability. (Id. at 37-38).
III. 	ANALYSIS
A. 	Jurisdiction
Generally, a § 2255 motion must be filed within one year of the latest of four events;
applicable here is the date the judgment becomes final. See 28 U.S .C. § 2255(f)(l). The District
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Court rendered judgment as to Petitioner on January 23, 2024. (Crim. Dkt. No. 154). 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. See 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). Thus, Petitioner had until February 6, 2025, 8 to
file a writ of habeas corpus. See 28 U.S.C. § 2255(f)(l). Petitioner's Motion was filed on January
30, 2025, 9 within the one-year limitation period for filing a writ of habeas corpus.
Accordingly, this Court has jurisdiction to review pursuant to 28 U.S.C. §§ 1331, 2255.
B. 	Applicable Law
1. 	Summary Judgment Review
The Federal Rules of Civil Procedure apply if there is no conflict with the federal rules
governing habeas proceedings. See 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).
8 Judgment was entered on January 23 , 2024, and Petitioner had 14 days to file a Notice of Appeal. (Crim .
Dkt. No. 154). As such, when Petitioner failed to file a Notice of Appeal, his conviction became final for
purposes of the one-year limitation period 14 days later, on February 6, 2024.
9 A prose prisoner filing is governed by the " mailbox rule[,]" which recognizes the date the filing is placed
into the prison mail system as the reference date, rather than the date actually received and filed in the
District Court. See Medley v. Thaler, 660 FJd 833 , 835 (5th Cir. 2011). Petitioner's Motion appears to
have been placed into the prison mail system on January 15, 2025, and subsequently mailed on January 23,
2025, before ultimately being docketed in this Court on January 30, 2025. Regardless, all three dates are
within the one-year limitation period, and a procedural time-bar is not a point of contention.
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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
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) (citing Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994)). 	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, Inc., 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).
A petitioner, however, "may not raise an issue for the first time on co ll ateral review without
showing both 'cause' for his procedural default, and 'actual prejudice' resulting from the error."
Shaid, 93 7 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
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[applied] on direct appeal." Id. (citing Frady, 456 U.S . at 166). Thus, a petitioner must explain
why the constitutional or jurisdictional claim was not brought up on direct appeal (the cause for
the procedural default 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 allows an exception
to this high bar of cause and prejudice for "extraordinary case[ s]" where "a constitutional violation
has probably resulted in the conviction of one who is actually innocent[.]" Shaid, 937 F.2d at 232
(citing Carrier, 477 U.S. at 496). Further, "[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)) (emphasis in original); see
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
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
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requiring a petitioner to bring an ineffective assistance of counsel claim on direct appeal "does not
promote those objectives." Id. at 504.
3. 	Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are analyzed under the 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. Id. at 687. "Failure to prove either deficient performance or
actual prejudice is fatal to an ineffective assistance claim." Carter v. 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." Armste ad v. Scott, 37 F.3d 202,210 (5th Cir. 1994).
The first prong requires a 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, l 9 F.3d 226, 228 (5th Cir. 1940) (citing Strickland,
466 U.S . at 686)). 	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 defendant to second-guess
counsel's assistance after conviction or adverse sentence[.]" Strickland, 466 U.S. at 689-90.
The second prong requires that a petitioner "demonstrate that her counsel's performance
so prejudiced her defense that the proceeding was fundamentally unfair." Faubion, l 9 F.3d at 228
(citing Strickland, 466 U.S. at 688). To show such 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. To establish such prejudice in connection
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with a guilty plea, a defendant bears the burden of demonstrating "a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would have insisted on going to
trial." Hill v. Lockhart, 474 U.S . 52, 59 (1985). To establish such prejudice within the punishment
phase of a non-capital case, a defendant must demonstrate that he was subjected to increased jail
time due to counsel 's deficient representation. 	United States v. Grammas, 376 F.3d 433 , 438-39
(5th Cir. 2004) (citing Glover v. United States, 531 U.S. 198,203 (2001)).
C. 	Petitioner's Claims
1. 	Ground One
Petitioner claims Counsel failed to correctly explain the ramifications of the plea agreement
and that Petitioner was told to "agree with whatever the judge asks you." (Civ. Dkt. No. 1 at 2) .
Specifically, Petitioner suggests he did not understand he would receive so much time, and that he
did 	not understand the 	substantial differences between the likely 	sentencing ranges 	upon
conviction. 	(Id. at 4). In doing so, it appears Petitioner challenges the underlying validity of his
guilty plea. The record prevents such a result.
"Before deciding whether to plead guilty, a defendant is entitled to 'the effective assistance
of competent couns el. "' Padilla v. Kentucky, 559 U.S. 356, 364-65 (2010) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). During the plea stage, the Supreme Court emphasizes that
counsel has "the critical obligation ... to advise the client of ' the advantages and disadvantages of
a plea agreement. "' Padilla, 559 U.S. at 370 (citing Libretti v. United States, 516 U.S. 29, 50-51
(1995)). Counsel is responsible for providing the accused an understanding of the law relative to
the facts, and it need not be perfect, "but it must be reasonably competent." United States v. Cavitt,
550 F.3d 430, 440 (5th Cir. 2008) (quoting Herring v. Estell e, 491 F.2d 125 , 128 (5th Cir. 1974)).
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The test for determining the validity of a guilty plea is "whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant."
Hill, 474 U.S . at 56 (1985) (quoting North Carolina v. Alford, 400 U.S . 25 , 31 (1970)). 	When a
defendant is represented by counsel "during the plea process and enters his plea upon the advice
of counsel, the voluntariness of the plea depends on whether counsel's advice ' was within the
range of competence demanded of attorneys in criminal cases. "' Id. (citing McMann , 397 U.S. at
771). 	Further, a defendant who pleads guilty upon advice of counsel "may only attack the
voluntary and intelligent character of the guilty plea by showing that the advice he received from
counsel was not within the standards set forth in McMann." 	Toll ett v. He nderson, 411 U.S. 258,
2 67 (1973). 	"When a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."
Id.
To establish prejudice in connection with a guilty plea, a defendant bears the burden of
demonstrating "a reasonable probability that, but for counsel 's errors, he would not have pled
guilty and would have insisted on going to trial." 	Hill, 474 U.S. at 59 . For a guilty plea to be
"intelligently" and "knowingly" entered, the defendant must have a "full understanding of what
the plea connotes and of its consequence." 	United States v. Lincks, 82 F.4th 325, 331 (5th Cir.
2023) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). 	"The defendant need only
understand the direct consequences of the plea; he need not be made aware of every consequence
that, absent a plea of guilty, would not otherwise occur." 	United States v. Hernandez, 234 F.3d
252, 255 (5th Cir. 2000) (citing Trujillo v. United States, 377 F.2d 266, 266 (5th Cir. 1967)).
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Here, the Magistrate Judge put Petitioner on notice of the implications of his plea
agreement at the pretrial conference held on October 23 , 2023. 	Similarly, Petitioner's sworn
testimony indicates he was aware of the consequences of his plea agreement. 	Petitioner testified
that he had enough time to discuss his case with Counsel, Mr. Sully. (Crim. Dkt. No. 186 at 14:12-
17). 10 	The court detailed the charge against Petitioner, as well as the Government's burden of
proof as to such charge. 	(Id. at 14:25-16:14). Petitioner affirmed that he understood the charge,
and that he had no questions about it. (Id. at 16: 15-20). The court then explained the various rights
Petitioner would have if he pled not guilty. (Id. at 19: 19-21: 19) . For example, by moving forward
with a plea of not guilty, Petitioner would have the right to a jury trial and thirty (30) days to
prepare for said trial, the right to have the Government prove Petitioner's guilt based on proof
beyond a reasonable doubt, the right to have the Government present witnesses against him, the
right to ask questions of those witnesses, the right to present witnesses and evidence at trial, and
the right to testify, and, of equal importance, the right to remain silent and not be compelled to
testify against himself. 	(Id.) . 	Petitioner confirmed that he understood he was giving up those
rights, and that he wished to give up those rights andpled guilty. (Id. at 21 :8-9, 22:4-10).
Next, the court inquired as to the assistance of counsel. The court asked whether Petitioner
had spoken with his attorney regarding punishment ifhe was found guilty. (C rim. Dkt. No. 186 at
22 :13-16). 	Petitioner testified in the affirmative. (Id. at 22 : 17) . The court instructed Petitioner
that he was facing a mandatory minimum sentence of ten (10) years, and a maximum sentence of
life in prison. (Id. at 22 :20-23). 	The court noted that there are only two exceptions that would
warrant deviation from the mandatory minimum sentences. (Id. at 23 :6-17). 	Petitioner testified
that he understood. (Id. at 23 :20-21 ). Petitioner testified that he understood the minimum of five
10 As noted above, Dkt. No. 186 is a transcript of the pretrial conference he ld on October 23 , 2023.
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(5) years of supervised release, and the amount of fines that could be imposed. (Id. at 24 :2-25 : 11).
Then, the court explained that Petitioner's sentence could be within, above, or below the guideline
range, as decided by the district judge. (Id. at 26:7-11 ). Petitioner understood and further testified
that he went through the plea agreement with counsel in detail. 	(Id. at 28:14-18). 	Petitioner
confirmed that he understood the agreement to be as the judge explained it, testified that there were
no additional promises outside of the agreement, and further stated that he understood the court
did not have to follow it. (Id. at 29:4-19). Finally, Petitioner testified that he was entering a plea
of guilty, freely and voluntaril y, and that he was doing so because he did what the Government
accused him of doing. (Id. at 32: 1-11 ). The court then, again, confirmed that Petitioner discussed
everything with his retained counsel, to which Petitioner testified that he had. (Id. at 33 :1-34:1).
"Solemn declarations in open court carry a strong presumption of verity." 	Blackledge v.
Allison, 431 U.S. 63 , 73-74 (1977). "For the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the judge accepting the plea,
constitute a formidable 	barrier in any subsequent collateral proceedings." 	Id. 	Similarly,
Petitioner's signed, unambiguous plea agreement is accorded great evidentiary weight when
deciding if the plea is entered knowingly. S ee Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5th
Cir. 1986). Petitioner appears to ask this Court to discard his sworn statements in open court, as
well as his signed, unambiguous plea agreement, but has failed to provide an y justification for
doing so , and the Court is unable to identify a reason in the record to penetrate that "formidable
barrier[.]" Blackledge, 431 U.S. at 73-74; Bonvillain, 780 F.2d at 1252. Thus, Petitioner fails to
show Counsel's advice fell below "the range of competence demanded of attorneys in criminal
cases." McMann , 397 U.S. at 771.
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Further, even taking Petitioner's contentions as true, that counsel failed to advise him
regarding the consequences of his plea agreement, a notion which does not appear to be supported
by the record, there can be no prejudice because the court advised Petitioner of his sentencing
exposure, and the function of the guideline ranges, before his guilty plea. 	See United States v.
Lucio, No. 2:20-294, 2025 WL 438569, at *8 (S.D. Tex . Feb. 7, 2025) (finding no prejudice where
"the Court advised Movant of his sentencing exposure and appellate waiver before his guilty
plea."). 	Nor does Petitioner make any assertion that, but-for counsel's errors, he would have
insisted on going to trial, much less that doing so "would have given him a reasonable chance of
obtaining a more favorable result." King v. Davis, 898 F.3d 600, 604-05 (5th Cir. 2018). "That
omission is fatal to [Petitioner's] claim." Id.
Accordingly, Ground One fails.
2. 	Ground Two
Petitioner claims he received ineffective assistance of counsel because his attorney failed
to bring up the sentencing disparity between himself and his co-defendants during sentencing.
(Civ. Dkt. No. 1 at 2). 11 This claim is conclusory and meritless.
Petitioner fails to identify any legitimate sentencing disparity among similarly situated
defendants across the country, much less a similarly situated co-defendant. 	The Court similarly
fails to identify any disparity in the record to corroborate Petitioner's contention. See Smallwood
v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) ("[A] court cannot consider a habeas petitioner's
bald assertions on a critical issue in his pro se petition .. . mere conclusory allegations do not raise
11 It appears Petitioner is referring to one of the sentencing factors to be considered in imposing a sentence.
See 18 U.S .C. § 3553(a)(6) (" [T]he need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct[.] " ).
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a constitutional issue in a habeas proceeding.") (quoting Ross v. Estell e, 694 F.2d 1008 , 1011-12
(5th Cir. 1983); Rosenblatt v. United States, No. 3:21 -cv-01561-M (BT), 2022 WL 17968848, at
*8 (N .D. Tex. Nov. 28 , 2022) ("Although pros e filings are liberally construed, this does not mean
the Court must develop arguments for [Petitioner].") (citing Unite d States v. Pineda, 988 F.2d 22 ,
23 (5th Cir. 1993)). Thus, Ground Two may fail for this reason alone.
However, this claim is also meritless because Petitioner and his co-defendants are not
similarly situated. As Respondent correctly noted, "only Seferino Garza had been sentenced at the
time of [Petitioner' s] sentencing," and "[Marcos Perez] was not sentenced until April 18 , 2024,
nearly three months after Garza was sentenced." 	(Civ. Dkt. No. 9 at 34). 	Seferino Garza was
sentenced on February 9, 2023 , to 121 months custody. 	(Se e United States v. Garza, et al. , Case
No. 7:22-cr-00302-1 , Crim. Dkt. No. 112) . However, Seferino Garza only had a criminal history
score of three at the time of sentencing, bringing his total offense level to 29 after an additional
acceptance of responsibility point, shifting his suggested range under the guidelines to 97-121
months. (See United States v. Ga rza, et al. , Case No. 7:22-cr-00302-1 , Crim. Dkt. No. 27 at 16).
Because Seferino Garza faced the same mandatory minimum as Petitioner ( 10 years), the district
judge sentenced him to 120 months. (Id.). Next, Marcos Perez was sentenced on April 23 , 2024,
to thirty (30) months. 	(See United States v. Garza, et al. , Case No. 7:22-cr-00302-3, Crim. Dkt.
No. 171). However, the quantity of drugs attributed to Marcos Perez was more than 500 grams
and less than two kilograms, as opposed to the more than five kilograms attributed to Seferino
Garza and Petitioner, resulting in a base offense level of 24; further, Perez had a criminal history
score of zero, which placed him in the criminal history category of I, all of which resulted in a
guideline range of 41-51 months. 	(Id. at 11 - 12 , 15) . 	Moreover, the district court applied a
downward variance from the statutory minimum of five (5) years by applying the "safety valve"
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exception. 12 (See UnitedStates v. Garza, etal. , Case No. 7:22-cr-00302-3, Crim. Dkt. No. 168 at
13) .
In comparison, Petitioner had a criminal history score of six (6), which placed him in the
category of III, and, additionally, had the role enhancement of two (2) added to his total offense
score, which made his guideline range 135-168 months. (Crim. Dkt. No. 147 at 15 , 21). 	Thus,
Petitioner and his co-defendants were not "similarly situated" at the time of sentencing. See Pena-
Sanchez v. United States, No. 7:20-CV-0126, 2021 WL 11549914, at *11 (S.D. Tex . Mar. 1, 2021)
("[Section 3553(a)'s disparity factor] does not require the district court to avoid sentencing
disparities between co-defendants who might not be similarly situated." ) (quoting United States v.
Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010)) (emphasis in original). As such, Petitioner
fails to show Counsel fell below the objective standard of reasonableness for failing to make a
meritless objection and further fails to show prejudice from such alleged error. See United States
v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) ("An attorney 's failure to raise a meritless argument
thus cannot form the basis of a successful ineffective assistance of counsel claim[.]") (citing
Williams v. Collins, 16 F.3d 626, 634-35 (5th Cir. 1994) and United States v. Victoria, 876 F.2d
1009, 1012 (1st Cir. 1989)).
Additionally, courts have found that sentencing disparity claims like the one Petitioner
presents are not cognizable claims for relief under§ 2255 . See 28 U.S.C. § 2255(a); United States
v. Farme r, No. 4:22-4307, 2025 WL 1785043, at *4 (S .D. Tex. June 27, 2025) (finding no basis
for relief under § 2255(a) for a sentencing disparity claim); United States v. Rackstraw, 85 F.3d
12 " [T]he so-called ' safety valve' provisions, enumerate various criteria which, if satisfied, permit a
sentencing court to impose a sentence below the statutory minimum for certain drug offenses." Rodriquez-
Saucedo v. United States, No. 5:05-CV-15, 2006 WL 2934262, at *1 (S.D. Tex. Oct. 12 , 2006); see 18
U.S.C. § 3553(f). In the case of Marcos Perez, the sentencing judge circumvented the mandatory minimum
sentence by apply in g the "safety valve" exception where Defendant Perez had a criminal history score of
zero. (S ee United States v. Garza, et al., Case No. 7:22-cr-00302-3 , Crim Dkt. No. 168 at 13).
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619, 619 ("The district court's technical application of the sentencing guidelines does not give rise
to a constitutional issue and is not cognizable in a§ 2255 proceeding." ); United States v. Peddi e,
990 F.2d 626, 626 (5th Cir. 	1993) (unpublished) (noting that a sentence disparity between
defendant and codefendant "not cognizable in a§ 2255 proceeding.").
Therefore, Ground Two fails .
3. 	Ground Three
Petitioner argues his counsel failed to correctly address his role in the offense. (Civ. Dkt.
No. 1 at 2). It appears Petitioner takes issue with Counsel's performance in challenging the two-
level aggravating role enhancement under U.S.S.G. § 3B 1.1(c). This claim is refuted by the record
and is meritless.
When a defendant "was an organizer, leader, manager, or supervisor m any criminal
activity," that defendant's offense level is increased by two levels. 	U.S.S.G. § 3B1.l(c).
Alternativel y, when a defendant was a "minimal participant" or a "minor participant[,]" the
defendant's offense level may be decreased, between two and four levels, respectively. U.S.S.G.
§§ 3B 1.2(a), (b). Petitioner claims the evidence is insufficient to support the former, and sufficient
to support the latter. (Civ. Dkt. No. 1 at 6).
Counsel made objections to the PSR, specifically arguing that Petitioner was solely acting
as a scout, and emphasizing that there "is no evidence that [Petitioner] coordinated or organized
this or recruited Seferino Garza or anyone into this[,]" nor "to conclude that [Petitioner] directed
a lower-level smuggling cell." (Crim. Dkt. No. 146 at 1) . Counsel again raised the objection at
the sentencing hearing:
We had [sic] one objection regarding the role, Your Honor. 	[Petitioner's]
role in this case is essentially he was acting as a scout for a co-Defendant, Seferino
Garcia, who was picking up a backpack with cocaine near the River. 	[Petitioner]
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was driving up and down Highway - or Business 83 looking for law enforcement,
and basically doing counter-surveillance.
So , we would ask the Court to either consider him a minor participant or at
least not assess the aggravating role, Your Honor. 	And also, Your Honor, we 're
asking for the - for the mandatory minimum sentence of a 120 months.
(Crim. Dkt. No. 174 at 3:10-20). 13
However, the district judge vehemently overruled the objection:
I think there 's a lot more here than just him scouting for a vehicle. I won't
go through and point out each and every instance in the PSR where the indication
is he 's more involved than that, but, however, I will touch on it - and I won't go
into great detail on the criminal history right now, but I will touch on that as it
pertains to knowledge, because, of course, that is one of the factors to be considered
here. And I think there's much in the report that indicates that he has, I think, a lot
of knowledge about [sic] how these operations work and what was going on here,
what they were doing and that he was trying to use some of that to remove himself
from more direct involvement.
As we know, many times when somebody starts out in this business, they 're
the people with hands on with the drugs, and the more you learn, I think, and the
more involved you become, you physically often are a little bit more removed from
the actual hands on. And I think [Petitioner] had come up to that. He 's only getting
a plus two. Quite frankly, it may be the right calculation based on the information
here, but I think knowledge is certainly much more than just a sort of plus two
person here. Of course, I told you one of the factors to be considered, but the Court
does believe that based on all of the information within the Report that the
enhancement is warranted.
(Crim. Dkt. No. 174 at 5:5-6:3).
Petitioner fails to show how Counsel's objections fell below the objective standard of
reasonableness required under the first prong of the Strickland measuring stick, nor does he suggest
what course of action Counsel should have pursued in their stead. 	Thus, Petitioner's claim is
refuted by the record and fails to show that Counsel's performance was deficient in his
representation regarding the role enhancement. 	See Delbosque v. United States, No. 4: 16cv670,
2019 WL 4282017, at *5 (E.D. Tex. July 25, 2019) (finding no deficient representation where
attorney filed objections to the presentence report and objected at the sentencing hearing for a
13 Dkt. No . 174 is a transcript of the sentencing hearing held on January 17 , 2024 .
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minor role adjustment), report and recommendation adopted, 2019 WL 4277457 (E.D. Tex. July
25 , 2019).
Moreover, the facts, undisputed by Petitioner's § 2255 motion, support the finding that
Petitioner was an organizer, leader, manager, or supervisor of a criminal activity. A sentencing
court applying the role enhancement under § 3B 1.1 (c) should consider: the exercise of decision-
making authority, the nature of participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of
authority exercised over others. U.S.S .G. § 3B1.1 , comment. (n.4). Additionally, Petitioner's role
in the offense may be "deduced inferentially from available facts." United States v. Ayala, 47 F.3d
688 , 690 (5th Cir. 1995) (citing United States v. Manthei, 913 F.2d 1130 , 1135 (5th Cir. 1990)).
The PSR illustrates that Petitioner directed a-smuggling cell. (Crim. Dkt. No. 14 7 at 5). 14
Suspected smuggling activities led to Petitioner's residence, and Petitioner was caught with
Marcos Perez with what was later determined to be bulk currency. (Id.) . A search of Petitioner's
residence revealed a "vacuum sealer, food saver bags consistent with the packaging of narcotics,
two digital scales, [and] two separate radios." 	(Id. at 6) . After the February 9, 2022, arrest and
seizure, 19 .91 kilograms of cocaine were attributed to Petitioner, and call logs from Petitioner's
phone showed thirty-six (36) calls to Mexican based numbers before and after communicating
with Seferino Garza. (Id. at 8). 	When Petitioner was arrested on September 22, 2022, he told
agents that he had a few ounces of cocaine in the kitchen, but if they could not find it, he had
already so ld it. 	(Id. at 9). 	Finally, at the time of arrest, he told an agent he "was a Valluco gang
14 See United States v. Ayala, 4 7 F.3d 688, 690 (5th Cir. 1995) ("Generally, a PSR bears sufficient indicia
ofreliab ility to permit the sentencing court to rely on it at sentencing.") (citing United States v. Gracia, 983
F.2d 625 , 629 (5th Cir. 1993)); see also United States v. Bourrage, 138 F.4th 327, 352- 53 (5th Cir. 2025).
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member and does not mess around[,]" and that " ... if [he] were to get out, [he] would 'fuck up' [an
agent.]" (Id.). These facts, taken together, indicate "a higher level of decision-making authority
and a deep involvement in the planning and organizing of the conspiracy[,]" and "the scope of
[Petitioner's] illegal activity was also quite large, given in part the significant quantities of cocaine"
for which he admitted responsibility for as part of the plea. See Va zquez-Avendano v. United States,
No. 7:19-cv-00147, 2020 WL 13802750, at *24 (S.D. Tex . Nov. 13 , 2020) (considering the§ 3Bl.1
factors in a drug conspiracy conviction on collateral review).
The factual record before the sentencing court appears to have been replete with evidence
supporting an inference that Petitioner was an organizer, leader, manager, or supervisor of the
criminal activity. 	There is no merit to Petitioner's claim that the evidence was insufficient to
support the aggravating role here, and Petitioner fails to show he suffered prejudice as required by
the second prong of the Strickland standard.
Thus, Petitioner's third ground for relief fails.
4. 	Ground Four
Petitioner argues that his attorney failed to properly address Petitioner's PSR challenges
because he did not rely on Petitioner's own statements. 	(Civ. Dkt. No. 1 at 6) . 	This claim is
conclusory and refuted by the record.
Petitioner fails to identify any statements he relayed to Counsel that were ignored in the
process of reviewing and objecting to the PSR. Nor does Petitioner shed light on any objections
that Counsel should have made but did not. 	His claims under Ground Four are thus conclusory
and " do not raise a constitutional issue[.]" Smallwood, 73 F.3d at 1351.
Moreover, Petitioner's sworn statements in court undermine the allegation. 	At the
sentencing hearing, the district judge asked Petitioner's Counsel whether he received and reviewed
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the PSR. 	(Crim. Dkt. No. 174 at 2: 18-19). Counsel confirmed that he had and further testified
that he reviewed it with Petitioner. (Id. at 2 :20-21 ). The court then probed Petitioner as to whether
he reviewed the PSR with Counsel. (Id. at 2:22-23). Petitioner testified that he had. (Id. at 2:24).
At no point did Petitioner suggest that his review of the PSR was insufficient, nor that his Counsel
failed to take certain considerations into account when filing the objections to such. 	Further,
Counsel filed 	various 	objections 	to 	the PSR, raised objections at the 	sentencing hearing
challenging the sufficiency of the evidence supporting a role enhancement, and ultimately
requested the mandatory minimum sentence. 	(Crim. Dkt. No. 174 at 3:9-20; see Dkt. No. 146).
In conjunction with the record, Petitioner's statements in open court, under penalty of perjury,
inhibit his pursuit of this claim; the Court is not free to cast them aside. 	Blackledge, 431 U.S. at
73 -74 .
Accordingly, Ground Four fails.
5. 	Ground Five
Petitioner suggests Counsel was ineffective because he failed to adequately address a major
and debilitating health issue, namely a MRSA infection that he apparently contracted due to the
conditions at MDC Brooklyn. 	(Civ. Dkt. No. 1 at 6-7). 	In addition to addressing the issue,
Petitioner claims his attorney should have fielded expert witnesses to testify as to said conditions
at MDC Brooklyn and to elaborate on the side effects and ramifications of a MRSA infection. (Id.
at 7) . This claim is conclusory, refuted by the record, and meritless.
Petitioner presents no facts to substantiate the claim that he contracted MRSA at MDC
Brooklyn, and the record is unable to provide refuge. In the PSR, the PO noted that Petitioner
"reported being borderline diabetic and has elevated cholesterol levels[,]" but no mention of
MRSA appears therein. 	(Crim. Dkt. No. 14 7 at 19) . 	Further, as Respondent queries, MDC
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Brooklyn is located in Brooklyn, New York , while Petitioner was arrested at his home in Roma,
Texas, and is currently housed at FCI Three Rivers in Three Rivers, Texas.15 (Civ. Dkt. No. 147
at 	9) ; 	see 	MDC 	Brooklyn, 	Federal 	Bureau 	of 	Prisons,
https://www.bop.gov/locations/institutions/bro/; FCI Three Rivers, Federal Bureau of Prisons,
https://www.bop.gov/locations/institutions/trv/; 	Inmate 	Locator, 	Federal 	Bureau 	of Prisons,
https://www.bop.gov/inmateloc/. 	Petitioner fails to craft a nexus between these seemingly
unrelated destinations, nor does he make any attempt to do so , and the Court refuses to speculate
as to such. This claim is conclusory and refuted by the record.
Moreover, "complaints of uncalled witnesses are not favored in federal habeas corpus
review because the presentation of testimonial evidence is a matter of trial strategy and because
allegations of what a witness would have stated are largely speculative." Day v. Quarterman, 566
F.3d 527, 538 (5th Cir. 2009) (citing Bray v. Quarterman, 265 F. App ' x 296, 298 (5th Cir. 2008)).
So , to prevail on such a claim, "based on counsel's failure to call a witness, [Petitioner] must name
the witness, demonstrate that the witness was available to testify and would have done so, set out
the content of the witness 's proposed testimony, and show that the testimony would have been
favorable to a particular defense." Id. (citing Alexander v. McCotter , 775 F.2d 595, 602 (5th Cir.
1985)). 	This is no small task, and Petitioner has not presented any of the requisite criteria in
support of his claim.
Petitioner cites to Looker v. United States in support of his proposition that the failure to
call medical professionals to testify and notify the court about the extent of Petitioner's health
issues and the seriousness of his medical ailments constitutes ineffective assistance of counsel.
15 Petitioner's § 2255 Motion lists a return address of FCI Beamont Low in Beaumont, Texas. (S ee 0kt.
No. 1) . However, based on a review of the BOP inmate locator, it appears Petitioner is now at Three Rivers
FCI, in Three Rivers, Texas.
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(Civ. Dkt. No. 1 at 6-7); see No. 4:18-cv-00478-GAF-P, 2019 WL 7546598 (W.D. Mo. Jan 11 ,
2019). However, here, like in Looker, even taking as true the assertion that Counsel 's performance
was deficient in failing to notify the court about Petitioner 's medical ailments, Petitioner fails to
show, "that there is a reasonable probability that the Court would have imposed a more favorable
sentence." Looker, 2019 WL 7546598, at *7. This is because " [a] defendant is never entitled to
receive a downward variance: the sentencing court retains discretion to grant or deny a downward
variance or departure after satisfying its obligation to address the parties' arguments." See Owen
v. United States, No. 1:20-cv-24, 2022 WL 17744049, at *6 (E.D. Tenn. Dec. 16, 2022) (finding
no prejudice for an attorney 's alleged failure to bring a mental health expert because the petitioner
could not show he would have received a downward variance) ( emphasis in original) (citing United
States v. Coffer, 860 F. App ' x 416, 419 (6th Cir. 2021)). As such, Petitioner cannot show prejudice
under the second prong of the Strickland test.
As a result, Ground Five fails.
6. 	Ground Six
Petitioner contends counsel was ineffective because Petitioner tried on several occasions
to fire or request Counsel recuse himself and switch federal defenders, but the attempts went
unheard. (Civ. Dkt. No. 1 at 7). This claim is conclusory, refuted by the record, and procedurally
barred.
While Petitioner claims he tried to fire or terminate his Counsel multiple times, the Court
is unable to identify a point in the record to support such a claim, nor did the Petitioner supplement
the allegations with evidentiary support. 16 In fact, the record indicates Petitioner made the choice
16 In his§ 2255 Motion, Petitioner cited to "Exh ibit A" and "Exhibit B" to support his ineffective assistance
of counsel claim that he attempted to terminate the representation of Counse l, but the attempts went ignored.
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to retain the attorney in question, and, when asked at the pretrial conference, under oath and in
open court, Petitioner testified that he was satisfied with his legal representation. 	(Civ. Dkt. No.
186 at 14: 15-17). Petitioner makes no factual showing that he requested different counsel, that he
attempted to fire or terminate Counsel, or that he was unhappy with Counsel's performance. Thus,
this claim is conclusory and refuted by the record, and the Court is unable to provide relief. See
Smallwood, 73 F.3d at 1351 ("[A] court cannot consider a habeas petitioner's bald assertions on a
critical issue in his pro se petition ... mere conclusory allegations do not raise a constitutional issue
in a habeas proceeding."); United States v. Regalado-Arita, No. 6:24-36, 2025 WL 1582466, at *5
(S.D. Tex. June 3, 2025) (" [A] petitioner alleging ineffective assistance of counsel ' must identify
specific acts or omissions; general statements and conclusory charges will not suffice."') (quoting
Knighton v. Maggio , 740 F.2d 134 , 1349-50 (5th Cir. 1984)).
Moreover, Petitioner's claim is procedurally barred. 	While Petitioner disguises this
Ground as an ineffective-assistance-of-counsel allegation, insofar as Petitioner claims he should
have been permitted to switch to a different public defender, it is more appropriately considered a
Sixth Amendment Right to Counsel of Choice claim. 17 As this point of error was available at the
time and could have been asserted on direct appeal-but was not because Petitioner failed to
appeal-this claim is being brought for the first time on collateral review and is procedurally
barred. 	Frady, 456 U.S. at 167-68. 	Thus, Petitioner must show cause and actual prejudice to
circumvent the bar, and for this Court to consider the claim. 	Id. at 168 . 	Here, Petitioner's
(Civ. 0kt. No. I at 3, 7). However, no exhibits were attached thereto. Thus, on February 3, 2025, this Court
ordered Petitioner to supply the referenced exhibits for consideration. (Civ. 0kt. No. 3). No such exhibits
were ever filed. Thus, they were not considered in review of Petitioner 's § 2255 Motion.
17 "T he Sixth Amendment to the Constitution guarantees that ' [i]n all criminal prosecutions, the accused
shall enjoy the right ... to have the Assistancee of Counsel for his defense."' Wheat v. United States, 486
U.S. 153 , 158 ( 1988) (quoting United States v. Morrison , 449 U.S. 361 , 364 (1981 )). " [T]he right to select
and be represented by one's preferred attorney is comprehended by the Sixth Amendment[.]" Id. at 159.
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allegations are threadbare and contain almost no substance in support of the claim, much less
factual information to satisfy the cause and actual prejudice standard required to permit review in
this Court. Petitioner's Counsel of Choice claim must fail for this reason. 	S ee Geddes v. United
States, No. 2:11-CV-1052-TC, 2011 WL 6034476, at *l (D. Utah Dec. 5, 2011) (rejecting Sixth
Amendment right to counsel of choice § 2255 motion as procedurally barred).
As a result, Ground Six fails.
D. 	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); see also R. Gov. Sec. 2255
Proceedings 4(b ). 	A court does not abuse its discretion when denying a habeas petition without
hearing when Movant's assertions are merely conclusory allegations or are otherwise "inconsistent
with the bulk of [his] conduct." See United States v. McDaniels, 907 F.3d 366,370 (5th Cir. 2018)
(affirming the district court's judgment to dismiss § 2255 motion without a hearing because an
evidentiary hearing was not warranted when the movant's arguments were "unavailing") (quoting
Cervantes, 132 F.3d at 1110); see also Bartholomew, 974 F.2d at 41 (holding there was no abuse
of discretion in denying a habeas motion without hearing where the movant's assertions of
ineffective assistance were wholly conclusory in nature and refuted by reference to the record
itself).
Based on the pleadings and record as outlined, Respondent has established that the claims
of ineffective assistance of counsel within the habeas petition do not raise any genuine issue of
material fact and summary judgment is warranted. 	Fed. R. Civ. P. 56(a). Because the record is
adequate to dispose fully and fairly of Petitioner's claims, no evidentiary hearing is necessary.
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Each claim is either refuted by the record, solely based on conclusory allegations, meritless, or
procedurally barred. 	In other words, summary dismissal in favor of Respondent is appropriate
without a hearing as the record establishes that there is no genuine issue as to any material facts as
claimed by Petitioner.
IV. 	CONCLUSION
Recommended Disposition
After careful review of the record and relevant law, the undersigned recommends that
Respondent's Motion for Summary Judgment (Civ. Dkt. No. 9) 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.
Certificate ofAppealability
It is further 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 COAdetermination 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
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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 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 of
reason 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 the "district court's assessment of the constitutional claims
debatable or wrong[,]" nor would he be able to show that the issues "deserve encouragement to
proceed further. " Slack, 529 U.S. at 484; 1\1iller-El, 537 U.S. at 327.
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.
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The Clerk shall provide copies of this order to Petitioner and counsel for Respondent.
DONE at McAllen, Texas, on 8th day of December 2025.
~United States Magistrate Judge
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