Garcia v. United States of America

NESTOR GARCIA,
BOP #01214-510
Movant,
v.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
§
§
§
§ 	CIV. NO. 7:24-cv-00411
§
§ 	CRIM. NO. 7:22-cr-00911-1
UNITED STATES OF AMERICA,
Respondent.
§
§
§
§
REPORT & RECOMMENDATION
Movant, Nestor Garcia (BOP #01214-510), a federal prisoner proceeding prose, initiated
this action by filing a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255,
alleging ineffective assistance of trial counsel. (Civ. Dkt. No. 1; Crim. Dkt. No. 85). 1 He has also
filed a memorandum oflaw in support of his claims. (Civ. Dkt. No. 5; Crim. Dkt. No. 88). The
undersigned directed Respondent to file an answer or other response and provided Movant the
option to reply. 	(See Civ. Dkt. Nos. 3, 7, 8, 9, 10). Respondent has filed a motion for summary
judgment arguing that Movant's claims are without merit and requesting Movant's motion be
denied without an evidentiary hearing. (Civ. Dkt. No. 13; Crim. Dkt. No. 97). Movant has filed a
lengthy response elaborating upon his ineffective assistance of counsel claims. (Civ. Dkt. No. 16;
Crim. Dkt. No. 100).
1 The District Court has referred this matter to the undersigned for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(l)(B) and L.R. 72. "Civ. Dkt." references filings
filed in this matter; "Crim. Dkt." references filings in the underlying criminal prosecution that is
being contested by Movant, United States v. Garcia, Case No. 7:22-cr-00911-1.
United States District Court
Southern District of Texas
ENTERED
December 19, 2025
Nathan Ochsner, Clerk
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 1 of 44

Based on review of the filings, the record, and relevant case law, this matter is ripe for
consideration without the need for a hearing. For the reasons discussed in this Report and
Recommendation, the undersigned concludes that Movant's § 2255 motion is without merit and
that his claims should be denied.
I. 	Background
In June 2022, Movant was charged with transporting cocaine and methamphetamine into
the United States from Mexico. In particular, a federal grand jury returned a six-count indictment
against Movant, charging him with (1) conspiracy to import into the United States 500 grams or
more of methamphetamine and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 963,
952(a), 960(a)(l), 960(b)(l), and 960(b)(2) (Count One); (2) importing into the United States 500
grams or more ofmethamphetamine, in violationof21 U.S.C. §§ 952(a), 960(a)(l), 960(b)(l) and
18 U.S.C. § 2 (Count Two); (3) importing into the United States 500 grams or more of cocaine, in
violation of 21 U.S.C. § 952(a), 960(a)(l), 960(b)(2), and 18 U.S.C. § 2 (Count Three); (4)
conspiracy to possess with intent to distribute 500 grams or more of methamphetamine and 500
grams or more of cocaine, in violation of 21 	U.S.C. 	§ 846, 841(a)(l), 841(b)(l)(A), and
841(b)(l)(B) (Count Four); (5) possession with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(l) and 841(b)(l)(A), and 18 U.S.C. § 2
(Count Five); and ( 6) possession with intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. § 841(a)(l) and 841(b)(l)(B), and 18 U.S.C. § 2 (Count Six). 	(See Crim. Dkt. No.
14).
Prior to trial, Christopher Sully was hired to represent Movant. Daniel Garcia assisted with
the defense at trial. A four-day jury trial took place in September 2022. Eliza Carmen Rodriguez
and Lee Fry represented the government. The government's theory of the case was that Movant
2
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 2 of 44

worked together with his mother to knowingly transport the drugs into the United States. Under
the defense theory of the case, Movant crossed the items into the United States as a favor to his
mother-who owned a transportation business-and he did not know that drugs were hidden in
the candy boxes he was transporting. 	The government called three witnesses at trial: Jeffery
Winters, an agent with Customs and Border Protection (CBP); Alfonso Gonzalez, an agricultural
specialist with CBP; and Jesus Palomo, a special agent and criminal investigator with the
Department of Homeland Security, Homeland Security Investigations. 	Movant elected not to
testify at trial and the defense did not call any witnesses.
Agent Winters testified that on May 13, 2022, he was working a shift at the primary
inspection point at the Hidalgo Port of Entry. (See Crim. Dkt. No. 62 at 78, 85). Winters testified
that around 3: 15 p.m. Movant arrived at the Hidalgo Port of Entry as a passenger in a taxicab. (Id
at 86). Movant told Winters that he was coming from Monterrey, Mexico and that his destination
was a quinceafiera in McAllen. (Id. at 88-89). When asked by Winters whether he had anything
to declare, Movant stated that he had some puppies, a box of meat, and what he described at the
time as a box full of drink mixes. 2 (Id at 89). After inspecting the meat and the puppies, Winters
decided to send Movant to secondary inspection for agricultural products. (See id. at 90, 116, 133-
34).
The next witness called by the government was Gonzalez, who was working the secondary
inspection for agricultural products the day Movant attempted to cross into the United States at the
Hidalgo Port of Entry. (Id. at 136, 14 7). Prior to his position as an agricultural specialist, Gonzalez
worked for CBP as a K-9 enforcement officer with a narcotics K-9 for approximately six and a
2 The "box full of drink mixes" initially identified during Winters' testimony is later
described as a cardboard box full of candy. (See, e.g., Crim. Dkt. 62 at 102, 105, 128).
3
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 3 of 44

half years. 	(Id. at 13 7). 	At the secondary inspection point Movant removed the items he was
attempting to cross into the United States onto a table for the items to be inspected. (Id. at 152).
Gonzalez began to inspect the items by removing boxes of candy from a large cardboard box. (Id.
at 152-53). 	As he was removing the boxes, Gonzalez came across two boxes that were "not
consistent with the weight of that type of candy." (Id. at 153-54). Gonzalez then decided to cut
open the cardboard box and he discovered a package wrapped in cellophane, which he believed to
contain narcotics based on his experience as a CBP officer. (Id. at 154).
Agent Palomo testified next for the government. 	(Id. at 217, 226). 	Paloma's testimony,
and the defense's cross-examination, spanned four days. Palomo testified that he has training and
experience in how dmg trafficking organizations operate and that he has personally investigated
hundreds of dmg operations during his career. (Id. at 218-19). He testified that in his experience,
for dmgs being transported out of Mexico, a coordinator in Mexico recmits somebody to transport
the dmgs and the two parties communicate via text messages, WhatsApp, and phone calls. (Id. at
218-23).
On the day of the alleged incident, the Hidalgo Port of Entry called for the agent on duty
to interview Movant following secondary inspection and Agent Palomo responded as the assigned
duty agent that day. (See id. at 226-28). Palomo testified that when he first arrived at the Hidalgo
Port of Entry, he and the other CBP officers present weighed the packages they believed to contain
cocaine and methamphetamine. (Id. at 228-37).
Palomo testified that he then interviewed Movant. (Id. at 242). The audio of the interview
was recorded. From interviewing Movant, Agent Palomo learned that Movant had picked up the
box full of candies from his mother's home. (Id. at 252). During the direct examination of Agent
4
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 4 of 44

Palomo, the government played the audio of the recorded interview almost in its entirety. 3 (See
id at 252; Crim. Dkt. No. 63 at 17-20; see also Civ. Dkt. No. 12 (Mr. Sully explaining that "the
government ... played the Petitioner's recorded statement almost in its entirety (minus some
redactions that I had requested of some of the more prejudicial parts")).
Agent Palomo testified regarding text messages he read that were exchanged between
Movant and his mother on May 13, 2022. (Crim. Dkt. 63 at 72, 180; Crim. Dkt. 65 at 73). 	The
texts from Movant's mother instructed Movant that he was going to cross into the United States in
a taxi with the dogs and a box of candies. (Crim. Dkt. 63 at 72). The text messages further stated
that Movant was to take the taxi to Walmart and get dropped off there, and then afterward a man
in a van would pick him up and take Movant back to the bridge at the Port of Entry. (Id. 	at 72,
;
181).
At the conclusion of the trial, the jury found Movant guilty as charged of all six counts in
the indictment. 	Prior to sentencing the Probation Office filed a presentence investigation report
(PSR). 	(See Crim. Dkt. No. 49). 	The PSR calculated Movant's base offense level at 38. (Id. at
9). Movant was assessed a 2-level enhancement because the offense involved the importation of
methamphetamine, bringing the total offense level to 40. (Id.) Movant's criminal history was 0,
thus establishing a criminal history category of I. (Id. at 10). The PSR noted that Counts 1, 2, 4,
and 5 of the indictment had a minimum imprisonment term of 10 years, while Counts 3 and 6 of
the indictment had a minimum imprisonment term of 5 years. 	(Id. at 14). 	Movant's Guidelines
imprisonment range was 292 to 365 months. (Id. at 14).
3 The recorded audio of the interview has not been transcribed as part of the trial transcript.
(See Crim. Dkt. Nos. 62, 63, 64, 65).
5
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 5 of 44

Sentencing took place on April 13, 2023. 	The District Court sentenced Movant to
concurrent terms of 144 months in prison for each count. (See Crim. Dkt. No. 66; see also Minute
Entry for 4/13/2023).
Movant filed a direct appeal of his conviction. 	Mr. Sully represented Movant on appeal.
Mr. Sully filed a lengthy 59-page brief asserting the following claims:
1. 	The district court abused its discretion in allowing Palomo to testify as a mixed
lay/expert witness and to comment on Garcia's mental state, all without pretrial notice.
a. 	The district court abused its discretion in allowing Palomo to testify as an expert
witness without pretrial notice and adequate qualification.
b. 	The district court abused its discretion in allowing Palomo to testify as a mixed
lay/expert witness and to offer other improper testimony.
c. 	Paloma's testimony was especially harmful given the lack of demarcation
between his roles and the lack of any safeguards. 	•
d. 	The district court abused its discretion in allowing Palomo to continuously
opine on Garcia's mental state.
2. 	The district court abused its discretion in admitting the audio recordings without a
complete Spanish translation and by allowing the case agent to function as an
interpreter, especially without pretrial notice.
a. 	The district court abused its discretion in allowing Palomo to testify as an
interpreter when he was obviously not qualified.
b. 	The district court abused its discretion in allowing Palomo to testify as an
interpreter without pretrial notice.
c. 	The district court abused its discretion by allowing audio recordings of Garcia's
interrogation to be admitted without a complete translation.
3. 	The district court plainly erred in shifting the burden to the defense when it told the
jury that the defense could have subpoenaed the second officer that was present during
Garcia's interview.
a. 	The district plainly erred by shifting the burden of proving innocence to the
defense, which was especially harmful since the defense did not call any
witnesses.
4. 	The evidence was insufficient to sustain any of Garcia's convictions.
a. 	The evidence was insufficient to prove Garcia knew of the methamphetamine
and cocaine or of any controlled substance, for that matter.
b. 	The evidence was insufficient to prove beyond a reasonable doubt that Garcia
even possessed the drugs.
(See United States v. Garcia, App. No. 23-40269, Dkt. No. 36 (5th Cir. Nov. 19, 2023)). 	In an
opinion dated May 13, 2024, the Fifth Circuit affirmed Movant's conviction. (See Cr. Docket No.
6
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 6 of 44

81; see also United States v. Garcia, No. 23-40269, 2024 WL 2131517, at *1 (5th Cir. May 13,
2024) (per curiam)).
Movant then timely filed the instant§ 2255 motion. 4
II. 	Summary of the Pleadings
Movant brings the following seven grounds for relief in his § 2255 motion: 5
1. 	Counsel provided ineffective assistance because he labored under a pecuniary conflict of
interest.
2. 	Counsel provided ineffective assistance by advising Movant not to testify on his own behalf
at trial.
3. 	Counsel provided ineffective assistance because he failed to have Movant's mother testify
at trial.
4. 	Counsel provided ineffective assistance by failing to request that the trial be continued/held
in abeyance so that the defense could offer an expert witness.
5. 	Counsel provided ineffective assistance when it failed to file a motion to suppress Garcia's
statements made during the interview with Agent Palomo.
6. 	Counsel provided ineffective assistance on appeal by not raising the argument that the
district court erred when it did not allow the full explanation of the portion of the interview
with Agent Palomo in which Movant tried to explain his joke of why he is a "good liar."
7. 	Counsel provided ineffective assistance because (a) he did not impeach Agent Palomo and
(b) he did not argue on appeal that the indictment had been constructively amended.
(See Civ. Dkt. No. 1; Civ. Dkt. No. 5; Civ. Dkt. No. 16).
4 Movant's § 2255 motion has been docketed in the triplicate. (See Civ. Dkt. No. 1). It is
not clear whether Movant submitted three identical copies of the § 2255 motion or whether the
Clerk's Office docketed the motion three times in error. In any event, for purposes of this Report
& Recommendation the court cites to only the first docketed copy.
5 Because Movant substantially clarifies his claims in his lengthy reply, the claims
described directly above also consider how Movant describes the claims in his reply, in addition
to the§ 2255 motion itself.
7
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 7 of 44

The undersigned ordered Respondent to file a response to Movant's § 2255 motion. (See
Civ. Dh. No. 3). Respondent filed a motion requesting an extension of time to respond to the§
2255 motion and also asked that the court issue an order requiring the attorney who represented
Movant at trial and on direct appeal-Mr. Sully-to file an affidavit responding to Ground Five
ofMovant's § 2255 motion. (See Civ. Dkt. No. 9). The court granted the motion for an extension
oftime and in the same order instructed Mr. Sully to file an affidavit responding to Movant's claim
of ineffective assistance. (See Civ. Dkt. No. 10).
Mr. Sully complied with the court's order by filing the following affidavit:
I am a licensed attorney who has been practicing federal criminal law for
approximately 16 years, both as a defense attorney and as a federal prosecutor for
approximately 4 of those years. 	I am licensed in the State of Texas, the State of
California (inactive), the Fifth Circuit Court of Appeals, and in various federal
district courts around the country. I graduated from Stanford Law School and from
Harvard University with honors.
I have filed countless motions to suppress and have obtained suppression of
evidence and even dismissal of charges, as a result. I have tried several jury trials
and obtained several acquittals. I have filed several appellate briefs before the Fifth
Circuit Court of Appeals, as well as before the Thirteenth Court of Appeals. I have
never had a client file a grievance against me, and I have never before had a section
2255 petition filed against me.
Along with co-counsel Daniel Garcia, I represented the Petitioner Nestor Garcia in
his federal criminal case before the trial Court (Chief Judge Crane), and I also
represented him on direct appeal to the Fifth Circuit Court of Appeals. I am making
this affidavit in response to the Court's Order (D.E. 10) and will therefore try to
focus on why a motion to suppress was not filed and other pertinent issues. 	My
representation of the Petitioner began almost three years ago, so I will try to recall
what happened in this case to the best of my recollection.
I decided not to file a motion to suppress the Petitioner's custodial statements after
carefully investigating the case and the caselaw and extensively and repeatedly
discussing the matter with him. 	Ultimately, I concluded that there was not a
legitimate basis for suppression of said statements. 	The recording of said
statements showed that the Petitioner was properly advised of his rights and
voluntarily waived them, orally and in writing. As explained below, the Petitioner
also confirmed that he had knowingly and voluntarily waived his rights and decided
to make the statement.
8
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 8 of 44

I explained to the Petitioner that the government could use his statements against
him, even though he denied knowing that there were drugs concealed in the package
that he was trying to cross into the U.S. from Mexico. For instance, the government
would likely use his inconsistencies and contradictions and his boast in his recorded
statement that he was a good liar to argue to the jury that he was lying about not
knowing about the drugs. 	I further explained that I could move to suppress his
statements if he did not knowingly and voluntarily waive his rights or if his
statement was otherwise suppressible.
He indicated that he had been properly advised of his rights before making his
statement, had understood them, and had knowingly and voluntarily waived them
and decided to make a statement of his own free will. He explained that he did so
because he felt that he had nothing to hide and wanted to tell his side of his story.
I explained to the Petitioner that, under the circumstances, I would not be filing a
motion to suppress. He agreed. He even seemed glad that his statements would be
introduced at trial so that the jury could hear his side of the story, even ifhe did not
testify.
He repeated several times throughout our discussions that he preferred not to testify,
if possible. 	Nevertheless, I spent many hours preparing him to testify in case he
changed his mind. 	This included rehearsing his testimony on direct examination
and then asking him questions on cross-examination as if I were the prosecutor.
Despite several run-throughs, I still felt that if he testified, he would probably do
more to undermine, rather than bolster, his defense.
At trial, after the government rested its case-in-chief and had played the Petitioner's
recorded statement almost in its entirety (minus some redactions that I had
requested of some of the more prejudicial parts), my co-counsel and I talked to the
Petitioner one more time to confirm whether he wanted to testify. I reminded the
Petitioner that it was his decision alone, and no one else's, whether to testify or
remain silent. I emphasized to the Petitioner that this was his chance to tell the jury
his story if he wanted to, and I did not want him to regret not testifying if he was·
convicted and then wonder if the result would have been different had he testified.
I explained that some decisions-such as what motions to file, which arguments to
make, and what legal strategies to use-were mine as the attorney, but others-
such as whether to testify or remain silent, whether to plead guilty or not guilty, and
whether to appeal-where his alone. After further discussion with me and my co-
counsel, the Petitioner confirmed that he had decided not to testify.
The Petitioner and I also extensively discussed his drug use and the facts of the case
before trial. He admitted that he was a regular user of marijuana and had last used
marijuana the night or early morning before his arrest. 	Since he was arrested and
interviewed in the late afternoon, his last drug and alcohol use was approximately
12 hours or more before his interview. 	Furthermore, he was not claiming that, at
9
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 9 of 44

the time of interview, he was intoxicated or otherwise unable to understand his
rights and knowingly and voluntarily consent to waiving them. On the contrary, he
confirmed that he had knowingly and voluntarily waived them. He explained that
from the time that he left Monterrey, Mexico, early in the morning on the day of
• his arrest until he was arrested and interviewed at the Port of Entry later that
afternoon, he had consumed no alcohol or drugs and therefore had plenty of time
to sober up.
The Petitioner added that his mother was not aware of the drugs in the package that
he tried to bring into the U.S. and that he also tried to keep his drug use from her.
He explained that she would not have allowed him to go on the trip or take the
package if she knew it contained drugs. Instead, she always did her utmost to keep
him away from drugs. 	For example, she had been very upset when she had
discovered drugs in his room and had, in response, taken him to a rehabilitation
center and made him attend rehabilitation in an effort to get him away from drugs.
He further explained that he had spent the night before his arrest with a friend. He
did not see his mother the night before his arrest nor the day of his arrest. He did
not pick up the package containing drugs from his mother, nor was he picked up
from his home on the day of his arrest when he began his trip toward the U.S. from
Monter[r]ey, Mexico. 	Rather, a man driving a van had picked him up from his
friend's house the morning of his arrest, and the package containing the drugs was
already in the van. 	When I asked him why he had not mentioned all this in his
custodial statement, he explained that he did not want to implicate his friend or
name him. I reminded him that if he testified, he had to be truthful, even if he was
asked about this friend. He reiterated that he preferred not to testify.
The Petitioner and I also extensively discussed the pros and cons of mentioning his
drug use in trial. I felt that the cons outweighed the pros. One of my concerns was
that his drug use would make him seem less credible. 	After all, drug users are
breaking the law every day (by possessing and using illegal drugs) and often lie on
a regular basis to hide their drug use from their family, friends, and employers. 	I
was 	also 	concerned that the 	government could successfully 	argue that the
Petitioner, as a regular drug user, was familiar with the drug world and with drug
traffickers and may have conspired with his drug supplier (perhaps his friend that
he had spent the night with) to import drugs into the U.S., either in return for
payment or for drugs or in order to pay off a drug debt. 	I successfully moved to
preclude the government from mentioning his drug use at trial. However, the Court
and the government warned that it and another prejudicial evidence that had been
excluded could be introduced if the Petitioner testified or otherwise opened the
door.
As explained above, the Petitioner admitted that he had knowingly and voluntarily
waived his rights and made his statement knowingly and voluntarily and that he
had not been coerced by the agent or anyone else to do so. In fact, as reflected on
10
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 10 of 44

the recording, the agent and the Petitioner had friendly, cordial exchanges early in
the interview when he waived his rights and began his statement.
Later in the interview, both of them did adopt a more hostile tone, however. 	The
agent confronted the Petitioner with the inconsistencies and contradictions in his
statements and accused him of lying. The Petitioner, although he admitted that he
was a good liar, continued to insist that he was unaware of the drugs and began
using obscenities and a more forceful tone. 	Still, I believed that it was the
Petitioner's knowing and voluntarily decision to waive his rights, initiate the
interview, and continue it, as he had confirmed to me, and I did not believe that the
agent had coerced him into doing so against his will.
At trial, I tried to implement a strategy that was consistent with the Petitioner's
statements: Basically, that he did not even suspect that there were drugs in the
package because it was his mother who had asked him to make the trip and help
cross items that belonged to clients of her shipping business that she had at the time,
and he did not believe that his mother would ask him to do that if it was even
possible that the package could contain drugs. 	Furthermore, the package was
closed and appeared to contain nothing but assorted candies. 	At trial, I also
introduced text and audio messages-particularly between him and his mother-
and photographs from the Petitioner's cell phone that corroborated his story. I also
got the case agent to admit at trial that the Petitioner's mother had come to the Port
of Entry (although she was unable to cross, lacking the immigration status to do so)
asking about the Petitioner. 	After interviewing her and the Petitioner, the
government had let her go after they declined prosecution on her. 	I also got the
case agent to admit that he would have trusted his mother like the Petitioner trusted
his if she had asked him to cross a package into the U.S. I believed this would all
help make the Petitioner's story more credible and increase his chances of an
acquittal. It could not, however, prevent the jury from concluding that he conspired
with someone else or from considering the inconsistencies in his story or his
recorded boast that he was a good liar.
Once the Petitioner was convicted at trial, my focus shifted to trying to mitigate his
sentence as much as possible by, among other things, shifting blame away from
him and onto anyone else, including his mother. I also filed several letters with the
Court, including a letter from the Petitioner's mother (who could not enter the U.S.)
where she took all the blame for what happened (because she asked the Petitioner
to cross into the U.S. and because she did not thoroughly inspect the package she
asked him to bring and therefore did not realize that it contained drugs concealed
inside) and begged for clemency for him. 	This resulted in a mitigating role
adjustment and a lower sentence than what was contemplated in the Presentence
Investigation Report.
The Petitioner received a sentence of 144 months' imprisonment, which was later
reduced to the mandatory minimum of 120, months. However, on the government's
motion, the Court cancelled the sentence reduction because the Petitioner's appeal
11
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 11 of 44

was still pending at the time. 	Once the appeal was denied, I filed an unopposed
motion to again reduce the Petitioner's sentence, which I believe is still pending.
See D.E. 83 in 7:22-cr-91 l.
Even after he was convicted and sentenced, the Petitioner decided to retain me for
his appeal, even though I explained to him that he could, instead, hire some other
attorney to represent him on appeal and that he also had the right to request
appointed counsel on appeal (like how he had appointed counsel at the beginning
of his case before retaining me). 	The Court also advised him at sentencing of his
right to request an appointed attorney on appeal. Still, he insisted that I continue to
represent him on appeal, as he explained that I was familiar with his case and that
he was satisfied with how I had represented him so far. He still did not express any
dissatisfaction with my representation in general or with my not having filed a
motion to suppress in particular.
During his appeal, the Petitioner and I extensively discussed which issues he
wanted to raise on appeal. He even sent me extensive notes listing and explaining
which points he wanted to raise on appeal and how. 	However, suppression or
ineffective assistance was not one of them. 	I drafted the opening brief and reply
brief as best as I could in accordance with his wishes and sent him copies of each,
as well as copies of all the transcripts in his case.
Even after his appeal was denied, the Petitioner still did not complain about my
representation or my not filing a motion to suppress. During our last conversation
when I advised him that his appeal was denied, I also explained his options if he
wanted to further litigate his appeal. I even suggested that he hire another attorney
ifhe wanted to continue fighting his case with a different attorney and even offered
to give him contact information for other appellate attorneys ifhe wanted that. 	He
declined, stating that he no longer wishes to continue litigating or fighting his case;
he just wanted to finish the time he had left on his sentence. 	He still did not
complain about my representation or my not having filed a motion to suppress.
I advised him that I would be withdrawing from his case. 	He thanked me once
again for all I had done for him. He said he might write a book about his case and
might ask me to send him information about his case to help with that. I reminded
him that I was no longer his attorney and had already sent him all the transcripts
and available information on his case.
Since he never complained about me before, I was surprised when I found out that
the Petitioner eventually filed (about a year-and-a-half after his sentencing) a
habeas petition under section 2255 complaining about my representation. 	On the
contrary, we had always had cordial, friendly interactions, and he repeatedly
thanked me for my efforts, even after he was convicted, was sentenced, and had his
appeal denied.
(Civ. Dkt. No. 12).
12
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 12 of 44

Respondent has filed a motion for summary judgment arguing that Movant's claims are
without merit and the§ 2255 motion should be denied. (Civ. Dkt. No. 13; Crim. Dkt. No. 97).
Movant has filed a lengthy response in which he expands on and clarifies his claims. (Civ.
Dkt. No. 16; Crim. Dkt. No. 100).
III. 	Relevant Legal Authority
Section 2255 of title 28 of the United States Code gives an individual in federal custody an
opportunity to collaterally challenge his conviction. Such a remedy is "reserved for transgressions
of constitutional rights and for a narrow range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete miscarriage of justice." 	United States v.
Vaughn, 855 F.2d 367,368 (5th Cir. 1992) (per curiam) (citations omitted). There are four specific
grounds upon which to bring a§ 2255 motion: (1) the sentence violates the Constitution or laws
of the United States, (2) the court was without jurisdiction to impose a sentence, (3) the sentence
exceeds the statutory maximum permitted, and (4) the sentence is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a); United States v. Seyfert, 67 F.3d 544,546 (5th Cir. 1995). Ineffective
assistance of counsel claims are properly raised in a§ 2255 motion. 	United States v. Green, 47
F.4th 279, 296 (5th Cir. 2022) (citations omitted). 	Finally, a § 2255 motion may be dismissed
without an evidentiary hearing if "the motion, files, and record of the case conclusively show that
no relief is appropriate." 	United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983) (citations
omitted); United States v. Green, 882 F.2d 999, 1008 (5th Cir. 1989).
Movant has alleged that his trial counsel provided constitutionally deficient assistance. To
demonstrat_e ineffective assistance of counsel, Movant is charged with satisfying a two-prong test:
(1) his counsel's performance fell below an objective standard of reasonableness, and (2) he
suffered prejudice because of the deficient performance. 	Strickland v. Washington, 466 U.S.
13
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 13 of 44

668,687 (1984). There is a "strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance" and 'judicial scrutiny of counsel's performance must be
highly deferential." Id. at 689. In making this assessment, the Court must make every effort "to
eliminate the distorting effects of hindsight." Id. 	Prejudice is shown when "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." 	Id. at 694. 	"A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694. 	What will amount to sufficient prejudice will vary case
by 	case since the prejudice prong "focuses 	on the 	question whether counsel's 	deficient
performance renders the result of the trial unreliable or the proceeding fundamentally unfair."
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citations omitted).
If Movant's claim fails either prong, it should be disposed of on that ground without the
need to discuss the other prong. See Strickland, 466 U.S. at 696 ("If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.").
IV. 	Analysis
A. 	Ground One: Ineffective Assistance of Counsel Based on an Alleged Conflict of
Interest
In his first ground for relief, Movant argues that counsel was ineffective because he labored
under a pecuniary conflict of interest: 	As the court understands Movant's argument, he asserts
that because his mother-Dora Hernandez-was paying Mr. Sully to represent Movant, Mr. Sully
had "divided loyalties" due to the fact that Movant describes his mother was an "unindicted co-
conspirator" whom Mr. Sully worked to "protect." (See Civ. Dkt. No. 1 at 4----5; see also Civ. Dkt.
No. 16 at 24----25). Movant alleges that Mr. Sully wanted to "protect" Movant's mother in the event
14
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 14 of 44

that his mother was indicted in the future and she hired Mr. Sully to represent her. (See Civ. Dkt.
No. 16 at 24-25).
The Sixth Amendment guarantee to the right of effective assistance of counsel "includes
the 'right to representation that is free from any conflict of interest.'" Sealed Appellee v. Sealed
Appellant, 900 F.3d 663, 669 (5th Cir. 2018) (quoting United States v. Hernandez, 690 F.3d 613,
618 (5th Cir. 2012)). "When considering a claim against an attorney for ineffective assistance of
counsel outside the context of multiple or serial client representation, the Fifth Circuit has adopted
the Strickland standard." 	Gonzalez v. United States, No. CR L-05-070, 2011 WL 13311976, at
*11 (S.D. Tex. Aug. 29, 2011) (citing Beets v. Scott, 65 F.3d 1258, 1273 (5th Cir. 1995)), R&R
adopted, No. CR L-05-070-2, 2012 WL 13118554 (S.D. Tex. June 13, 2012); see also United
States v. Goodley, 183 F. App'x 419,422 (5th Cir. 2006) (per curiam) ("[T]he Strickland standard
applies when, as here, the quality of representation is alleged to have been affected by the
attorney's self-interest .... "); Black v. Davis, 902 F.3d 541, 547 n.2 (5th Cir. 2018) ("We have
limited Cuyler [v. Sullivan, 446 U.S. 335 (1980)]'s applicability to cases concerning conflicts
arising from an attorney's representation of multiple clients."); Fields v. Vannoy, No. 15-30911,
2016 WL 11848584, at *1 (5th Cir. July 13, 2016) ("In this circuit, the [Cuyler v.] Sullivan[, 446
U.S. 335 (1980)] 'actual conflict' standard is implicated only in cases involving multiple or serial
representation.") (citing Beets, 65 F.3d at 1272).
Because Movant has made clear that he claims that Mr. Sully suffered from a financial
conflict of interest-and not that Mr. Sully's conflict-of-interest arose from the representation of
multiple clients 6
-the two-prong Strickland standard applies. To be entitled to relief, Movant must
6 Movant does not point to anything in the record that demonstrates that Movant's mother
was herself a client of Mr. Sully.
15
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 15 of 44

show "a reasonable probability that the conflict prejudiced the defense, undermining the reliability
of the proceeding." Bostickv. Quarterman, 580 F.3d 303,306, n.2 (5th Cir. 2009) (quoting United
States v. Garza, 429 F.3d 165, 171 n. 3 (5th Cir. 2005)).
Review of the pleadings shows that Movant's complaints about counsel amount mainly to
disagreements about trial strategy, rather than a conflict of interest. 	Movant complains that Mr.
Sully "never actually intended to put on the defense I wanted." 	(Civ. Dkt. 16 at 23). 	Movant
describes Mr. Sully's trial strategy as trying to show that Movant trusted his mother and that she
cared about him. 	(See id). 	Movant states that he does not understand why Mr. Sully was
concerned about the image the jury had ofMovant's mother. (See id at 24-25). However, "[m]ere
disagreement about strategic litigation decisions is not a conflict of interest." 	United States v.
Fields, 483 F.3d 313, 353 (5th Cir. 2007). The mere fact that Movant's mother paid for his defense
does not automatically mean that Mr. Sully suffered from a conflict of interest. See United States
v. 	Olmos, 532 F. App'x 462, 465 (5th Cir. 2013) (explaining that "the mere fact that [the
defendant's attorney] was retained by a third party does not necessarily mean that [the attorney]
was conflicted .... In drug cases, it is not uncommon for a third party to pay the legal fees of the
defendants. A conflict of interest does not automatically arise from such arrangements.") (citing
United States v. Ca,;penter, 769 F.2d 258,263 (5th Cir. 1985)).
Even assuming a conflict of interest existed, Movant has not shown that such a conflict had
an adverse impact on counsel's performance or otherwise prejudiced his defense. In his affidavit
submitted to the court, Mr. Sully explains that he tried to implement a strategy that was consistent
with Movant's recorded statements, which was that Movant did not "suspect that there were drugs
in the package because it was his mother who had asked him to make the trip and help cross items
that belonged to clients of her shipping business that she had at the time" and that "he did not
16
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 16 of 44

believe that his mother would ask him to do that if it was even possible that the package could
contain drugs." (Civ. Dkt. No. 12 at 5-6). Mr. Sully explains that he introduced text and audio
messages between Movant and his mother that corroborated this strategy. 	(Id. at 6). 	Mr. Sully
further explains that once Movant was found guilty, his "focus shifted to trying to mitigate_ his
sentence as much as possible by, among other things, shifting blame away from him and onto
anyone else, including his mother." 	(Id.). 	Counsel's efforts resulted in a mitigating role
adjustment to a lower sentence than was contemplated in the PSR. (See Crim. Dkt. No. 67; Crim.
Dkt. No. 73). Mr. Sully's affidavit describes his reasoned trial strategy. There is no support in the
record that a monetary motivation on Mr. Sully's part prejudiced the defense ofMovant.
Movant has not met his burden to show that the purported conflict of interest adversely
affected counsel's representation at trial. Movant' s conflict of interest claim should be denied.
B. 	Ground Two: Counsel's Alleged Failure in Advising Movant to Not Testify at Trial
A criminal defendant has a constitutional right to testify on his own behalf. 	Rock v.
Arkansas, 483 U.S. 44, 49-53 (1987); see also United States v. Martinez, 181 F.3d 627, 628 (5th
Cir. 1999). Waiver of the right to testify belongs to the defendant and his lawyer cannot waive the
right over the defendant's objection. 	United States v. Mullins, 315 F.3d 449, 454 (5th Cir. 2002).
"Where the record. indicates that the defendant knew of her right to testify and wanted to do so,
but acquiesced in counsel's advice that she not take the stand, the only inquiry is whether counsel's
advice against testifying constituted sound trial strategy." Casanova v. United St_ates, No. EP-01-
CR-1423-DB, 2007 WL 2815696, at *9 (W.D. Tex. Sept. 6, 2007) (internal footnote omitted); see
also Mullins, 315 F.3d at 453. "In examining counsel's strategy, the Court must remain mindful
that the decision whether to put a defendant on the stand is 'a judgment call that should not easily
17
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 17 of 44

be condemned with the benefit of hindsight."' 	Gasanova, 2007 WL 2815696, at *9 (quoting
Mullins, 315 F.3d at 454-55).
In his § 2255 motion, Movant argues that Mr. Sully provided ineffective assistance by
advising him not to testify on his own behalf at trial. (Civ. Dkt. No. 1 at 6). However, in his reply,
Movant is inconsistent in whether or not he wanted to testify at trial. In one sentence he states that
"The defense theory I asked Sully to bring to the court was precisely so I could testify." (Civ. Dkt.
No. 16 at 29). 	In the very next sentence, Movant states that "Of course I said several times 'I
rather not testify if possible.'" (Id. at 29). He acknowledges later on that "I only decided not to
[testify] at the last minute after seeing what Sully put on as a defense, and how the prosecution
managed to fill the jury with prejudice .... And, I feared I would just make i! worse by saying
what I planned to say." (Id. at 30). It is clear that Movant himself made the decision on whether
or not to testify at trial.
Further, Mr. Sully's advice against testifying was sound trial strategy. In the affidavit he
filed with the court, Mr. Sully submits that despite several practice sessions of Movant rehearsing
the testimony he would give if he decided to testify, Mr. Sully felt that if Movant testified, "he
would probably do more to undermine, rather than bolster, his defense." (Civ. Dkt. No. 12 at 3).
Movant had previously been convicted of marijuana possession 7 and Mr. Sully was well aware
that Movant was a regular user of marijuana. (See id. at 4). Advising Movant not to testify when
the possibility that impeachment evidence about Movant's past drug crime and drug abuse issues
7 In 2011, after pleading no contest to possession of less than two ounces of marijuana,
Movant was sentenced to 12 months deferred adjudication probation. 	(See Crim. Dkt. No. 49 at
10). 	The term of probation was revoked in 2012 after Movant was determined to have violated
the conditions of probation by having four positive urinalyses, failing to pay court-ordered fees,
failing to complete community service, and failing to complete court-ordered courses and
meetings. (Id.). Movant was then adjudicated guilty and sentenced to 30 days of custody. (Id.).
18
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 18 of 44

could be introduced if Movant took the stand does not constitute deficient representation.
Although Movant believed that testifying about his drug abuse was good trial strategy-in fact, he
states that talking about his drug abuse and mental imbalances was "the only way" to explain his
"conduct during the dreadfully coercive interview [with Palomo] and the things I said" (see Civ.
Dkt. No. 16 at 28) (emphasis in original), it is not umeasonable that Mr. Sully thought otherwise.
Movant has not shown that Mr. Sully's performance fell below an objective standard of
reasonableness or that he suffered prejudice because of the deficient performance. See, e.g., United
States v. Walker, No. 22-30659, 2024 WL 640150, at *3 (5th Cir. Feb. 15, 2024) (finding that the
movant did not meet the prejudice prong of his ineffective assistance of counsel claim that counsel
failed to inform him of his right to testify because if the movant had testified, "he would have
opened himself to impeachment by evidence of his past convictions for" various crimes); Balderas
v. United States, No. 6:06CR27, 2012 WL 3544753, at *19 (E.D. Tex. Apr. 23, 2012) (finding that
the movant did not show ineffective assistance of trial counsel in relation to ,his failure-to-testify
claim when the movant's past criminal record could be brought before the jury and the likelihood
that the jury would credit the movant's testimony "over that of the prosecution witnesses is not
great enough even to rise to the level of a reasonable probability"), R&R adopted, No. 6:06CR27,
2012 WL 3543491 (E.D. Tex. Aug. 15, 2012); Alaniz v. United States, No. 5:10-CR-1420-2, 2015
WL 12803705, at *6 (S.D. Tex. Jan. 25, 2015) (rejecting the movant's ineffective assistance of
counsel claim and commenting that "if Petitioner testified in his own defense at trial, his credibility
would have undergone a scorching cross-examination. 	In denying claims similar to those made
by Petitioner, the Fifth Circuit has repeatedly recognized that by testifying, a defendant potentially
opens himself up to attacks concerning his criminal record.").
This ground for relief should be denied.
19
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 19 of 44

C. 	Ground Three: Counsel's Alleged Failure to Call Movant's Mother as a Witness
The court understands Movant's third ground for relief as alleging that counsel provided
ineffective assistance because he failed to have Movant's mother testify at trial. 	(See Civ. Dkt.
No. 1 at 8; Civ. Dkt. No. 16 at 31-34). 	Movant also appears to argue that counsel should have
played recorded jail calls between Movant and his mother, which would have supported Movant's
"actual innocence." (Civ. Dkt. No. 1 at 8). 	Movant claims that his mother's failure to testify at
trial violated his rights under the Confrontation Clause of the United States Constitution. (See Civ.
Dkt. No. 5 at 1-2; Civ. Dkt. No. 16 at 33).
"[C]omplaints 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) (citation omitted); see also Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir.
2002). "[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness,
-,
the 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." 	Day, 566 F.3d at 538 (citation
omitted). 	"Generally, when a movant fails to present at least some evidence from an uncalled
witness regarding the witness's potential testimony and willingness to testify, it is fatal to an
ineffective assistance of counsel claim." Carson v. United States, No. 3:15-CR-00211-M-2, 2022
WL 1230070, at *2 (N.D. Tex. Mar. 31, 2022) (citing Harrison v. Quarterman, 496 F.3d 419,428
(5th Cir. 2007) and Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001)), R&R adopted, No.
3:15-CR-00211-M-2, 2022 WL 1228205 (N.D. Tex. Apr. 26, 2022).
20
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 20 of 44

Movant argues that had his mother testified at trial, she would have testified that she
provided Movant with the items to cross into the United States as part of her transport business
and that a third party had hired the shipping service to transport the items. (See Civ. Dkt. No. 16
at 32). 	Movant further claims that his mother would have testified as to the names and phone
numbers of the people who hired her. 	(Id.). 	She also would have testified that she did not know
that the box Movant was transporting contained drugs. 	(Id.). 	Movant argues that if his mother
had testified at trial, it would have given him "a very good chance at acquittal." (Id.).
Movant has not provided the court with an affidavit or other sworn statement from his
mother identifying the substance of her potential testimony and whether she was available for trial
and was willing to testify. Absent an affidavit or declaration from the uncalled witness, Movant's
claim is speculative and conclusory and does not demonstrate deficient performance or prejudice.
See Sayre, 238 F.3d at 636.
Movant also argues that his counsel performed deficiently when he did not play recorded
jail calls between Movant and his mother. Movant claims the phone calls would have supported
his "actual innocence." 	Movant believes the phone calls would have been admissible at trial
because his mother would have qualified as an "unavailable witness." Movant, however, has not
demonstrated that he is entitled to relief. 	Besides broadly asserting that the jail calls between
himself and his mother would have supported his "actual innocence," Movant gives no indication
of what transpired in the phone calls, nor does he explain how-assuming the calls were found
admissible at trial-the playing of the phone calls would have changed the result of the trial.
"[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in
a federal habeas proceeding." United States v. Minor, No. 21-10200, 2022 WL 11776785, at *4
(5th Cir. Oct. 20, 2022) (quoting Miller v. Johnson, 200 F.3d 274,282 (5th Cir. 2000)).
21
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 21 of 44

Movant's claim that his mother's failure to testify at trial violated his rights under the
Confrontation Clause must also be rejected. 	The Confrontation Clause found in the Sixth
Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against him .... " U.S. Const.
Amend VI. The Confrontation Clause bars the "admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination." Crawfordv. Washington, 541 U.S. 36, 53-54 (2004); see also
United States v. Gonzales, 436 F.3d 560, 576 (5th Cir. 2006) ("[T]he Confrontation Clause
prohibits (1) testimonial out-of-court statements; (2) made by a person who does not appear at
trial; (3) received against the accused; (4) to establish the truth of the matter asserted; (5) unless
the declarant is unavailable and the defendant had a prior opportunity to cross examine him.")
(citing Crawford, 124 S. Ct. at 1364-66).
To the extent Movant is challenging testimony regarding text messages exchanged between
himself and his mother on the days leading up to May 13, 2022, and on May 13, 2022, such
evidence was not admitted for establishing the truth of the matter asserted. (See, e.g., Crim. Dkt.
No. 63 at 8-16). 	Rather, the text messages were admitted for the nonhearsay purpose of
demonstrating the effect they had on the listener. (See id at 8-16). "The [Confrontation] Clause
... does not bar the use of testimonial statements for purposes other than establishing the truth of
the matter asserted." Crawford, 541 U.S. at 59, n.9 (citing Tennessee v. Street, 471 U.S. 409,414
(1985)); see also United States v. Rodriguez, 484 F.3d 1006, 1013-14 (8th Cir. 2007) (holding that
an out-of-court statement admitted to show the defendant's state of mind does not implicate the
Confrontation Clause); United States v. Flores, 725 F. App'x 478, 482 (9th Cir. 2018) (finding
22
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 22 of 44

that statements offered to prove a witness's state of mind are not testimonial and did not violate
the Confrontation Clause); Fed. R. Evid. 803.
Movant has not met his burden under Strickland and this claim should be denied.
D. 	Ground Four: Counsel's Alleged Failure to Call an Expert Witness
Movant claims that Mr. Sully provided ineffective assistance by failing to request that the
trial be continued/held in abeyance so that the defense could offer an expert witness. 	(See Civ.
Dkt. No. 1 at 9; Civ. Dkt. No. 16 at 35). 8 Movant argues that Mr. Sully should have called an
expert to "counter" the "expert testimony" given by Agent Palomo, including the topics of
"technical and specialized knowledge," "data not in evidence," and "opinion testimony and
conclusions." 	(Civ. Dkt. No. 16 at 36).
First, the court did not qualify Palomo to testify as an expert witness. (See Crim. Dkt. No.
62 at 234-35; Crim. Dkt. No. 63 at 79-84). Because Agent Palomo was not testifying as an expert,
any attempt to continue the trial so that defense counsel could find their own expert to testify would
have been denied by the district court. 	"An attorney's failure to raise a meritless argument ...
cannot form the basis of a successful ineffective assistance of counsel claim[.]" 	United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
Second, even if Palomo had testified as an expert witness, Movant's ineffective assistance
of counsel claim still fails. As already discussed, claims of uncalled witnesses "are disfavored [on
federal habeas corpus review], especially if the claim is unsupported by evidence indicating the
8 In the motion for summary judgment, Respondent construes this claim as Movant
asserting that his attorney provided ineffective assistance for failing to continue the trial so that
counsel could hire an expert to assist in Spanish translation. 	(See Civ. Dkt. No. 13 at 21-24).
Movant clarifies in his reply, however, that "this ground is about the ineffectiveness of the counsel
for failing to request that the trial be held in abeyance to offer an expert for the defense." 	(Civ.
Dkt. No. 16 at 35).
23
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 23 of 44

witnesses's willingness to testify and the substance of the proposed testimony." 	Gregory v.
Thaler, 601 F.3d 347, 353 (5th Cir. 2010) (citations omitted); see also Sayre, 238 F.3d at 635-36
("Complaints of uncalled witnesses are not favored in federal habeas corpus review because
allegations of what a witness would have testified are largely speculative.") (quoting Lockhart v.
McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986)). To demonstrate the required Strickland prejudice
in this context, a petitioner "must show not only that [the] testimony [of an uncalled witness] would
have been favorable, but also that the witness would have testified at trial." Evans, 285 F.3d at
377 (quoting Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). "A decision by counsel
not to hire an expert is well 'within the realm of trial strategy,' to which [the] Court must defer."
Cox v. Davis, No. CV 3:18-cv-29, 2019 WL 13440327, at *15 (S.D. Tex. Sept. 20, 2019) (citing
Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993)).
Besides arguing that a hypothetical expert witness should have been called to testify about
the topics of "technical and specialized knowledge," "data not in evidence," and "opinion
testimony and conclusions," Movant has not submitted an affidavit or other sworn statement from
a proposed expert witness, identifying the substance of the potential testimony and whether the
proposed witness was available for trial and willing to testify. Absent an affidavit or declaration
from the uncalled witness, Movant's claim is speculative and conclusory and does not demonstrate
deficient performance or prejudice. See Sayre, 238 F.3d at 636.
Movant' s claim should be denied.
E. 	Ground Five: Counsel's Alleged Failure to File a Motion to Suppress
In his fifth ground for relief, Movant argues that Mr. Sully should have filed a motion to
suppress Movant's statements made during his interview with Agent Palomo. (See Civ. Dkt. No.
1 at 11). In his§ 2255 motion, Movant claims that his statements made during the interview were
24
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 24 of 44

not voluntary because he had smoked marijuana, "done acid and cocaine," and had consumed
alcohol within a 24-hour hour period preceding the interview. (See id).
In his affidavit, Mr. Sully explains why he did not file a motion to suppress Movant's
statements made during the interview with Agent Palomo:
I decided not to file a motion to suppress the Petitioner's custodial statements after
carefully investigating the case and the caselaw and extensively and repeatedly
discussing the matter with him. 	Ultimately, I concluded that there was not a
legitimate basis for suppression of said statements. 	The recording of said
statements showed that the Petitioner was properly advised of his rights and
voluntarily waived them, orally and in writing. As explained below, the Petitioner
also confirmed that he had knowingly and voluntarily waived his rights and decided
to make the statement.
I explained to the Petitioner that the government could use his statements against
him, even though he denied knowing that there were drugs concealed in the package
that he was trying to cross into the U.S. from Mexico. For instance, the government
would likely use his inconsistencies and contradictions and his boast in his recorded
statement that he was a good liar to argue to the jury that he was lying about not
knowing about the drugs. 	I further explained that I could move to suppress his
statements if he did not knowingly and voluntarily waive his rights or if his
statement was otherwise suppressible.
He indicated that he had been properly advised of his rights before making his
statement, had understood them, and had knowingly and voluntarily waived them
and decided to make a statement of his own free will. He explained that he did so
because he felt that he had nothing to hide and wanted to tell his side of his story.
I explained to the Petitioner that, under the circumstances, I would not be filing a
motion to suppress. He agreed. He even seemed glad that his statements would be
introduced at trial so that the jury could hear his side of the story, even if he did not
testify.
The Petitioner and I also extensively discussed his drug use and the facts of the case
before trial. He admitted that he was a regular user of marijuana and had last used
marijuana the night or early morning before his arrest. 	Since he was arrested and
interviewed in the late afternoon, his last drug and alcohol use was approximately
12 hours or more before his interview. 	Furthermore, he was not claiming that, at
the time of interview, he was intoxicated or otherwise unable to understand his
rights and knowingly and voluntarily consent to waiving them. On the contrary, he
confirmed that he had knowingly and voluntarily waived them. He explained that
25
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 25 of 44

from the time that he left Monterrey, Mexico, early in the morning on the day of
his arrest until he was arrested and interviewed at the Port of Entry later that
afternoon, he had consumed no alcohol or drugs and therefore had plenty of time
to sober up.
As explained above, the Petitioner admitted that he had knowingly and voluntarily
waived his rights and made his statement knowingly and voluntarily and that he
had not been coerced by the agent or anyone else to do so. In fact, as reflected on
the recording, the agent and the Petitioner had friendly, cordial exchanges early in
the interview when he waived his rights and began his statement.
Later in the interview, both of them did adopt a more hostile tone, however. The
agent confronted the Petitioner with the inconsistencies and contradictions in his
statements and accused him of lying. The Petitioner, although he admitted that he
was a good liar, continued to insist that he was unaware of the drugs and began
using obscenities and a more forceful tone. 	Still, I believed that it was the
Petitioner's knowing and voluntarily decision to waive his rights, initiate the
interview, and continue it, as he had confirmed to me, and I did not believe that the
agent had coerced him into doing so against his will.
Even after he was convicted and sentenced, the Petitioner decided to retain me for
his appeal, even though I explained to him that he could, instead, hire some other
attorney to represent him on appeal and that he also had the right to request
appointed counsel on appeal (like how he had appointed counsel at the beginning
of his case before retaining me). 	The Court also advised him at sentencing of his
right to request an appointed attorney on appeal. Still, he insisted that I continue to
represent him on appeal, as he explained that I was familiar with his case and that
he was satisfied with how I had represented him so far. He still did not express any
dissatisfaction with my representation in general or with my not having filed a
motion to suppress in particular.
During his appeal, the Petitioner and I extensively discussed which issues he
wanted to raise on appeal. He even sent me extensive notes listing and explaining
which points he wanted to raise on appeal and how. 	However, suppression or
ineffective assistance was not one of them. 	I drafted the opening brief and reply
brief as best as I could in accordance with his wishes and sent him copies of each,
as well as copies of all the transcripts in his case.
(Civ. Dkt. No. 12).
26
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 26 of 44

In his reply, Movant responds to Mr. Sully's affidavit and describes his claim in greater
detail. Construing the claim liberally, Movant argues that Mr. Sully performed deficiently by not
filing a motion to suppress Movant' s statements made during the interview with Agent Palomo on
the basis that the statements not given voluntarily in that (1) Agent Palomo overcame Movant's
will, and (2) Movant was under the influence of drugs and alcohol and had little sleep at the time
of the interview. (See Civ. Dkt. No. 16 at 15-21). 	In the reply, Movant avers that he asked Mr.
Sully ifhe was able to file a motion to suppress the interview, to which Mr. Sully responded that
he would not file a motion to suppress because Movant stated that Agent Palomo had read him his
Miranda rights and thus the motion would not be successful. (See id at 16). Movant says he only
agreed that Mr. Sully should not file a motion to suppress because Movant believed Mr. Sully
when he said such a motion would not be successful. 	(See id at 16-17). 	Movant argues that a
motion to suppress would have been successful, however, because there is case law that supports
"suppression of statements like [his]" and because his statements were involuntary in that Agent
Palomo overbore his will and Movant was under the influence of drugs and alcohol when the
interview took place. (See id at 17-18).
Both arguments will be examined in turn.
1. 	The allegation that the motion to suppress would have been successful
because Agent Palomo overbore Movant's will
"The Fifth Amendment prohibits the government from using an involuntary confession as
evidence in a criminal trial." 	United States v. Pena, 115 F.4th 1254, 1257 (10th Cir. 2024). "To
determine whether a confession was voluntary, and thus in accordance with the requirements of
due process, we must evaluate 'whether a defendant's will was overborne by the circumstances
surrounding the giving of a confession."' 	United States v. Turner, 674 F.3d 420, 432 (5th Cir.
2012) (quoting Dickerson v. United States, 530 U.S. 428, 434 (2000)). "This inquiry 'takes into
27
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 27 of 44

consideration the totality of all the surrounding circumstances-both the characteristics of the
accused and the details of the interrogation."' Id. (quoting Dickerson, 530 U.S. at 434). "Coercive
police conduct is a necessary prerequisite to the conclusion that a confession was involuntary, and
the defendant must establish a causal link between the coercive conduct and the confession." Id.
at 432-33 (quoting Carter v. Johnson, 131 F.3d 452,462 (5th Cir. 1997)); see also United States
v. Reynolds, 367 F.3d 294, 298 (5th Cir. 2004) ("The voluntariness of a confession depends on
whether, under the totality of the circumstances, the statement is the product of the accused's free
and rational choice. We have also said that coercive police activity is a necessary predicate to the
finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the
Fourteenth Amendment.") (internal quotation marks and citations omitted). 	However, "law
enforcement does not produce an involuntary confession by persuading a suspect to confess or by
influencing a defendant in making inculpatory statements." Pena, 115 F.4th at 1257-58. "Rather,
a suspect' s confession offends the Fifth Amendment only if law enforcement overbears the
suspect's free will and critically impairs the suspect's capacity for self-determination." Id. at 1258;
see also United States v. Tatum, 121 F. Supp. 2d 577, 580 (E.D. Tex. 2000) ("Constitutional due
process prohibits the use of coercive government conduct to extract incriminating statements from
the accused.") (citing Colorado v. Connelly, 479 U.S. 157, 165 (1986)).
When describing how Agent Palomo allegedly overbore his will, Movant alleges that he
told Mr. Sully the following:
I insisted there must be something [Mr. Sully] could do because I felt like Palomo
did things that could be violations to my rights .... I explained that [Agent Palomo]
induced me into talking to him, first, by flat out denying I was under arrest. 	He
said I wasn't when I asked, so I asked to leave, and he said I was "detained." 	I
asked him why. I believed it was my right to know of what I was accused. Right
off the bat, I was getting upset with the agent. He made me feel even more paranoid
that I usually am. Then, he asked me ifl wanted to waive my rights acting friendly
and civilized at first ... once he got the waiver, he started being mean and loud,
28
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 28 of 44

acting violent and invading my personal space. 	Once I gave him my version and
he didn't like it, asserting I wasn't telling him "the truth" he started threatening me
with never seeing my son again and he further coerced my statements by saying
that if I didn't tell him "the truth" he wouldn't be able to help me, and he would
turn the case over to the District Attorneys (he was implying that by talking to him
I still had a chance of him letting me go that night) and let them charge me and take
me into custody.
(Civ. Dkt. No. 16 at 16-17) (Movant's internal citations to the record omitted).
Movant's allegation that Agent Palomo "overcame his will" mainly concerns Agent
Paloma's alleged actions after Movant waived his Miranda rights-that is, Movant asserts that
after he voluntarily waived his rights, Agent Palomo started being "mean and loud," acted violent,
invaded his personal space, and threatened Movant that he would not see his son anymore and that
the case would be turned over to government prosecutors. Movant, however, does not claim that
the waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) was not done unknowingly
or involuntarily. 	To the contrary, prior to waiving his rights under Miranda, Movant describes
Agent Paloma's interaction with him as "friendly and civilized." (Civ. Dkt. No. 16 at 17).
Movant's characterization of Agent Palomo during the interview does not support that
Agent Palomo overbore Movant's will. 	In general, "the use of ordinary interrogation tactics"-
such as invading a suspect's personal space, talking loudly, "lying to, threatening in a non-violent
way, [or] insulting or making false promises to a suspect"-do not "trigger substantive due process
concerns." See Sanders v. Splittorff, No. 17-CV-864-JPG, 2024 WL 3470892, at *3 (S.D. Ill. July
19, 2024) (finding that a police interrogation did not "shock the conscience" when police officers
invaded the suspect's personal space to make him feel uncomfortable, intimidated him in a non-
violent way, and exploited his close relationship with a family member to provide incentive for
the suspect to confess); Pena, 115 F.4th at 1261-62 (affirming the district's court denial of a
motion to 	suppress 	and finding 	that the defendant's 	confession was voluntary when the
29
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 29 of 44

interrogating officers spoke in loud voices, invaded the defendant's personal space, exhorted the
defendant to confess with phrases like "be honest" and "tell the truth," deceived the defendant by
telling him he was not a suspect and that law enforcement had "overwhelming evidence" against
him, and threatened the defendant with jail time when considered against the findings that the
defendant "had no communication problems and was administered Miranda warnings").
Law enforcement telling a suspect that they do not believe the suspect is telling the truth
does not make the suspect's statements involuntary. 	See Tatum, 	121 F. Supp. 2d at 581
("Encouraging a suspect to tell the truth and suggesting that his cohorts might leave him 'holding
the bag' does not, as a matter oflaw overcome a confessor's will.") (citing United States v. Ballard,
586 F.2d 1060, 1063 (5th Cir. 1978)). Further, "mere promises ofleniency, without more, are not
sufficient to invalidate a confession as involuntary." Turner, 674 F.3d at 433. Although Movant
contends that Agent Palomo started "acting violent" during the interview, Movant in no way
describes or gives details concerning Palomo's alleged violent behavior. 	Generalized statements
will not meet the movant's burden on summary judgment. Nor does Movant point to any specific
time in the record where Agent Palomo's alleged violent conduct occurred. "It is not the Court's
function to 'scour the record' in search of evidence to support or defeat a motion for summary
judgment." Sanders, 2024 WL 3470892, at *5 (citing Bombardv. Fort Wayne Newspapers, Inc.,
92 F.3d 560, 562 (7th Cir. 1996)). 	In light of the above-considered together with Movant's
personal characteristics that by all accounts he is an educated man who completed high school and
attended some college, who is fluent in ~oth Spanish and English, and who was 34-years-old at
the time of the incident (see Crim. Dkt. No. 49 at 3, 12-13)-the court does not find that Agent
Palomo overbore Movant's free will.
30
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 30 of 44

To successfully prove his ineffective assistance claim, Movant must show that (1) a
suppression motion would have been meritorious, (2) his counsel's failure to file one was
objectively unreasonable, and (3) but for his counsel's deficient performance, the result of the trial
could have been different. 	See United States v. Ratliff, 719 F.3d 422, 423 (5th Cir. 2013);
Kimme/man v. Morrison, 477 U.S. 365, 375 (1,986). 	It is not likely that the district court would
have granted a motion to suppress Movant' s entire interview with Agent Palomo. 	Because a
suppression motion would not have been meritorious, Movant has not shown that Mr. Sully
provided ineffective assistance of counsel. See Kimler, 167 F.3d at 893.
2. 	The allegation that the motion to suppress would have been successful
because Movant lacked sleep and was under the influence of drugs and
alcohol during the interview with Agent Palomo
Movant claims that a motion to suppress the interview with Agent Palomo would have
been successful because Movant did not sleep much the night before and was under the influence
of drugs and alcohol when the interview took place and therefore his statements given during the
interview were not made voluntarily. (See Civ. Dkt. No. 1 at 11; Civ. Dkt. No. 16 at 18-21). In
his response to the respondent's motion for summary judgment, Movant claims that between 1:30
a.m. to 2:00 a.m. on May 13, 2022, he "drank [alcohol], smoked marijuana, shared a (split) dose
of LSD [with his friend] and snorted cocaine." (Civ. Dkt. No. 16 at 19). He says that he "didn't
sleep until the morning." (Id.). 	Movant states that he again smoked marijuana at 7:00 a.m. and
that on the car ride to the border he "dozed off for minutes at a time but never properly slept." (See
id.). Although Movant now claims in his response that he was under the influence of the marijuana,
LSD, cocaine, and alcohol at the time of the interview with Agent Palomo (see id.), he does not
claim that he told Mr. Sully that he was so intoxicated at the time of the interview as to make his
statements involuntary. 	Instead, based on his affidavit, it appears that Mr. Sully was under the
31
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 31 of 44

impression that Movant last used marijuana and alcohol approximately 12 hours or more before
his interview with Agent Palomo. 	Because Mr. Sully had no reason to believe that Movant was
intoxicated or unable to voluntarily consent to waiving his rights at the time of the interview, Mr.
Sully believed that there was no valid basis for filing a motion to suppress the interview. 	The
failure to file a meritless motion is not ineffective assistance. See Kimler, 167 F.3d at 893. Movant
explains that while incarcerated, he has learned about drug addiction through courses offered by
the Bureau of Prisons and has learned more about the "time frames for physical permanence of
substances[.]" 	(Civ. Dkt. No. 16 at 19-20). 	While the court commends Movant for bettering
himself while in prison, his new insights into drug addiction do not change the fact that Mr. Sully
was not aware of a valid basis for filing a motion to suppress the audio of the interview with Agent
Palomo.
Further, even ifMovant was intoxicated at the time of the interview,9 "[t]he mere fact that
[a suspect] was intoxicated ... does not affect the voluntariness of his confession" because
coercive police activity is a prerequisite to finding that a confession is not voluntary. See Raborn
v. United States, No. 4:22-CR-066-O, 2024 WL 3625683, at *4 (N.D. Tex. July 31, 2024) (citing
Connelly, 479 U.S. at 167 and United States v. Raymer, 876 F.2d 383, 386 (5th Cir. 1989)); see
also Wilson v. Warden, Louisiana State Penitentiary, No. 09-CV-1065, 2012 WL 3715447, at *6
(W.D. La. July 30, 2012) ("[M]ental impairment or intoxication are considerations in determining
the voluntariness of a statement, but only when there is also official coercion."} (citing Martinez
9 The court does not make a finding either way, but the court does observe that Movant
alleges that he drank alcohol and used LSD, cocaine, and marijuana around 2:00 a.m. on May 13
and then smoked marijuana again around 7:00 a.m. and that Movant's interview with Agent
Palomo did not occur until the late afternoon of May 13. (See Crim. Dkt. No. 62 at 86, 149, 241-
245 (Agent Winters testifying that Movant arrived at the Hidalgo Port of Entry around 3: 15 p.m.
and testimony that Agent Palomo did not interview Movant until after Agent Winters and Agent
Gonzalez interacted with Movant at the first and secondary inspection points)).
32
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 32 of 44

v. Quarterman, 270 Fed. Appx. 277,290 (5th Cir. 2008) and Sosa v. Dretke, 133 Fed. Appx. 114,
119 (5th Cir. 2005)), R&R adopted, No. CIV.A. 09-1065, 2012 WL 3648411 (W.D. La. Aug. 24,
2012)); Rushing v. Blackburn, No. CIV.A. 86-4421, 1987 WL 16832, at *17 (E.D. La. Sept. 1,
1987) (''.Even assuming as true Petitioner's allegation that he was under the influence of alcohol
and illicit drugs at the time of the confession, the waiver of rights would still be voluntary" because
"[p Jo lice coercion, intimidation or overreaching, is a necessary prerequisite to a finding of
involuntariness.") (citation omitted), aff'd in part sub nom. Rushing v. Butler, 868 F.2d 800 (5th
Cir. 1989).
Movant has not pointed to anything in the record that suggests that he complained to Agent
Palomo about his fatigue or that he was currently intoxicated from drug and/or alcohol use at the
time of the interview. 	A suspect' s intoxication or lack of sleep will not render his statements
involuntary without the added element of police coercion. See, e.g., Muniz v. Johnson, 132 F.3d
214,220 (5th Cir. 1998) (finding that the defendant's confession was not made involuntary due to
"his fatigued physical and emotional condition at the time of the confession" when "[t]here is
nothing in the record to suggest that [the defendant] complained to the officers about his fatigue;
that he requested additional time to rest; or that the officers conditioned additional rest time on
receiving his confession"); United States v. Solis, 299 F.3d 420, 438--40 (5th Cir. 2002) (upholding
the denial of a motion to suppress the defendant's statements that he claimed where involuntarily
made because the defendant took speed an hour before being taken into custody when, among
other factors, no police coercion was used); United States v. Garcia Abrego, 141 F.3d 142, 168-
71 (5th Cir. 1998) (finding that drug pressure medication and two injections of Valium given to
the defendant several hours before his interview with police did not render his statements
involuntary when the defendant had not demonstrated any overreaching by law enforcement,
33
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 33 of 44

which "is a prerequisite to a determination that a confession is involuntary for purposes of the
Fourteenth Amendment Due Process Clause"). As already discussed, Movant's allegations do not
support a finding that Agent Palomo' s conduct during the interview was so coercive as to have
overbom Movant' swill. (See supra Section E. 1). Movant has not shown that a motion to suppress
based on statements made involuntary due to exhaustion and intoxication would have been
successful; therefore, his ineffective assistance of counsel claim must be denied.
F. 	Ground Six: Counsel's Alleged Ineffective Assistance on Appeal
In his next ground for relief, Movant argues that Mr. Sully provided ineffective assistance
on appeal by not raising the argument that the district court erred when it did not allow the full
explanation of the portion of the interview with Agent Palomo in which Movant tried to explain
his joke of why he is a good liar. (See Civ. Dkt. No. 1 at 11; Civ. Dkt. No. 16 at 37-38). Movant
asserts that Mr. Sully should have argued on appeal that the district court erred when it did not
allow evidence regarding Movant' s explanation as for why he is a good liar.
"A criminal defendant is entitled to constitutionally effective assistance of counsel on
direct appeal." United States v. Dovalina, 262 F.3d472, 474 (5th Cir. 2001). Claims ofineffective
assistance of appellate counsel are reviewed under the Strickland standard. See Smith v. Murray,
477 U.S. 527, 535-36 (1986). "The Constitution does not require an appellate attorney to advance
every conceivable argument, regardless of merit." Willingham v. Cockrell, 61 F. App'x 918, 2003
WL 1107011, at *4 (5th Cir. 2003) (citation omitted); see also Green v. Johnson, 160 F.3d 1029,
1043 (5th Cir. 1998) ("On appeal, effective assistance of counsel does not mean counsel who will
raise every nonfrivolous ground of appeal available."). "Instead, counsel is required to raise and
brief only those issues which are believed by counsel, in the exercise of professional judgment, to
have the best chance of success." 	Willingham, 2003 WL 1107011, at *4 (citation omitted). 	To
34
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 34 of 44

satisfy the prejudice prong, "[movant] must demonstrate a reasonable probability that the claim
would have been successful on appeal[.]" United States v. Blount, 159 F. App'x 591,592 (5th Cir.
2005) (per curiam).
Movant argues that "[p]laying the part of the audio where I tell the agents the 'good liar'
joke was essential to rehabilitate the opinion testimony Palomo gave when he asserted I wasn't
truthful about everything." (Civ. Dkt. No. 16 at 37). Before the jury entered on the third day of
trial, the parties and the court discussed the admission of certain evidence contained on Movant's
cell phone. (See Crim. Dkt. No. 65 at 4-20). Mr. Sully argued that he should be permitted to ask
Agent Palomo questions about stand-up comedy material that Movant kept on his phone, as this
material was relevant to the portion of the audio that the government had played where Movant
told Agent Palomo that he was a "good liar." As demonstrated in the selected portion of the trial
transcript, the court sustained the government's objection to the line of questioning and admission
of the related material from Movant's phone:
THE COURT: 	Beside this one page, is there any others that you're trying to
get in?
MR. SULLY: 	Yes, Your Honor. There is -
THE COURT: 	Let me see the next page.
MR. SULLY: 	Tried to take out the ones that likely wouldn't be admissible.
But there is -- we anticipate there's going to be some
questions to the agent regarding information that he kept his
own phone, showing that Mr. Garcia's basically into standup
comedy, he has a set written out there, different things he's
going to say.
MS. RODRIGUEZ: 	Your Honor, that's irrelevant. I don't think that comes up in
the interview.
THE COURT: 	Yeah, okay. I'm -- looking at this page, I don't see anything
that would say it's admissible. A question, [Spanish spoken,
not interpreted herein] that's you wouldn't -- that wouldn't
35
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 35 of 44

be offered for the effect it had on him. 	A-okay, also same
thing.
MR. SULLY: 	Well, --
THE COURT: 	Again, his statements don't go to the effect on him. 	Those
would just be out of -- I mean, --
MR. SULLY: 	Well, they -
THE COURT: 	-- those are hearsay. I don't see an exception on the -
MR. SULLY: 	Well, the reason, Your Honor, is that there's a part in the
recordings that the Government played where the Defendant
says, I'm a good liar. I don't like to lie but I'm a good liar.
But the problem is I don't have a good memory. 	And he
goes into kind of this long explanation about how he's a
good liar but not really because he doesn't remember, and at
the end everybody laughs.
THE COURT: 	Sure.
MR. SULLY: 	And so the Government's argument I think's going to say,
look, he even admitted he's a good liar, 	don' 	believe
anything he says.
THE COURT: 	Right.
MR. SULLY: 	And so we think it's important for the agent to say, well, did
you -- in looking at the phone, investigating and seeing the
context, that he's a comedian, that he writes out these jokes
and everything and that, you know, everybody laughed at the
end of this, to take into account was he really saying that he's
a good liar and yet he's telling you that he's lying or was he
maybe making a joke, because that's the way that he is.
MS. RODRIGUEZ: 	Your Honor, --
MS. RODRIGUEZ: 	-- we're going to object to that.
THE COURT: 	Yeah. 	This page that you have in front of me I do not find
admissible. 	The prior page that you showed me, the
statements that might go to the -- to his state of mind or the
effect on him I think would -- likely would be. Again, just
the mother's statement. 	It's only a few of those lines. 	Do
C 	you have a third page that you want to try to introduce?
36
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 36 of 44

(Crim. Dkt. No. 65 at 9-11). 	Movant then points to a portion of the trial record where Agent
Palomo testified that he believed that Movant was lying to him when he interviewed Movant on
May 13, 2022. (Civ. Dkt. No. 16 at 37 (citing Crim. Dkt. No. 63 at 138)). Movant asserts that Mr.
Sully should have argued on appeal that the district court erred when it did not allow evidence
regarding Movant's explanation as for why he is a good liar. 	(See id). 	Movant claims that
"[p]laying the part of the audio where I tell the agents the 'good liar' joke was essential to
rehabilitate the opinion testimony Palomo gave when he asserted I wasn't truthful about ,
everything." (See id.).
Aside from claiming that the "good liar" joke was "essential to rehabilitate" Agent
Palomo' s opinion testimony that Movant was not truthful about everything, Movant makes no
argument that the issue would have been decided in his favor had his attorney raised the issue on
appeal. Nor does Movant explain how playing the recorded audio of where he jokes that he is a
"good liar" or, for that matter, submitting additional evidence from his cellular phone as argued
by Mr. Sully explaining that Movant is an amateur comedian would have rehabilitated him in the
eyes of the jury. 	Without explaining how the issue would have come out differently on appeal,
Movant cannot make out a claim that he received ineffective assistance of counsel on appeal.
Moreover, "appellate counsel is not required to confer with a client about the issues
presented on appeal, regardless of any preferred practice." Cruz-Reyes v. United States, No. l:15-
cv-071, 2016 WL 1715339, at *4 (S.D. Tex. Apr. 5, 2016) (citing Hooks v. Roberts, 480 F.2d
1196, 1197 (5th Cir. 1973)), R&R adopted, 2016 WL 1718266 (S.D. Tex. Apr. 27, 2016). 	As
already discussed, Mr. Sully filed a thorough appellate brief addressing the claims that he thought
would have the best chance of success on appeal. See Coker v. Thaler, 670 F. Supp. 2d 541, 554
(N.D. Tex. 2009) ("[C]ounsel is obligated only to raise and brief those issues that are believed to
37
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 37 of 44

have the best chance of success.") (citations omitted); United States v. Birtha, No. CRIM. 7-
20052(02), 2015 WL 893267, at *9 (W.D. La. Feb. 27, 2015) ("[A]ppellate counsel are not
required to present ... every non-frivolous argument which could be raised on appeal. 	Instead,
appellate counsel is required to raise and brief only those issues that counsel believes, in the
exercise of professional judgment, to have the best chance of success .... On appeal, effective
assistance of counsel means, as it does at trial, counsel performing in a reasonably effective
manner.") (internal citations omitted); United States v. Corio/ant, No. CR 11-241, 2017 WL
2935781, at *11 (E.D. La. July 10, 2017) ("Even if a particular claim is not facially meritless,
'[t]he Constitution does not require appellate counsel to raise every nonfrivolous ground that might
be pressed on appeal."') (quoting Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989)). 	Movant
does not show that the choice to not raise this issue on appeal, given the trial court record, was
objectively unreasonable. Movant therefore has not met his burden under Strickland. This ground
for relief should be denied.
G. 	Ground 	Seven: 	Counsel's 	Alleged 	Failure 	in 	Impeaching 	Agent 	Palomo 	and
Counsel's Alleged Failure to Raise on Appeal that the Indictment Had Been
Constructively Amended
In his last claim for relief, Movant appears to assert two distinct claims. 	First, he argues
that Mr. Sully performed deficiently because he did not impeach Agent Palomo. 	(See Civ. Dkt.
No. 16 at 10-12). 	Movant claims that Mr. Sully did not "comprehend[] ... how impeachment
worked" and did not know how or when to impeach a witness. (See id. at 10-11 ). Second, Movant
argues that Mr. Sully provided constitutionally ineffective assistance on direct appeal because he
did not argue that the government changed their theory of the case from that originally presented
to the grand jury. (See id. at 12).
38
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 38 of 44

1. 	Counsel's Alleged Failure in Impeaching Agent Palomo
"Because decisions regarding cross-examination are strategic, they usually will not support
an ineffective assistance claim." United States v. Bernard, .762 F.3d 467, 472 (5th Cir. 2014); see
also Escalante v. Blackwell, No. DR-16-CV-00140-AM, 2019 WL 13409892, at *9. (W.D. Tex.
Mar. 27, 2019) ("The questioning of witnesses, including impeachment, is a matter falling within
trial counsel's choice of strategy."). Review of the trial record shows that Mr. Sully capably cross-
examined the prosecution witnesses, including Agent Palomo. 	In particular, Mr. Sully's cross-
examination of Agent Palomo, the government's primary witness, spanned three days and there
are several instances where Mr. Sully attempted to undermine Agent Palomo's credibility as a
witness. 10 	Movant has not shown that the result of the trial would have been different had Mr.
Sully questioned Agent Palomo differently. 	See, e.g., United States v. Irby, 103 F.3d 126, 1996
WL 731500, at *4 (5th Cir. 1996) (denying the movant's claim that "trial counsel performed
deficiently in failing to adequately cross-examine a number of government witnesses" when the
movant failed to set forth "the possible impact of any additional cross-examination"); United States
v. Narang, No. CR H-17-290-01, 2023 WL 5489055, at *8 (S.D. Tex. Aug. 24, 2023) ("For this
court to second guess trial counsel's decision to focus his cross-examination on other topics,
Petitioner must at least put forth a compelling area of questioning that was left out.")
10 The portion of the trial transcript that Movant cites in support of his argument that Mr.
Sully did not understand the impeachment process does not support this contention. Rather, Mr.
Sully and Chief Judge Crane were discussing the relevance of several proposed jury instructions,
including instructions for impeachment by prior inconsistent statements.
39
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 39 of 44

2. 	Counsel's Alleged Failure to Raise on Appeal that the Indictment Had Been
Constructively Amended
Last, Movant argues that Mr. Sully provided constitutionally ineffective assistance on
direct appeal because he did not argue on appeal that the government changed their theory of the
case from that originally presented to the grand jury. (See Civ. Dkt. No. 16 at 12). He asserts that
the "conspiracy" and "knowledge" elements of the charged crimes were not met because he
appears to believe that "code word evidence" was presented to the grand jury but no evidence was
admitted at trial that he and his mother used code words in their text messages. (See id at 12-13).
Respondent understands this claim as Movant alleging that the government constructively
amended the indictment by convicting him based on a different set of facts than those presented to
the grand jury. This too is how the court interprets Movant' s claim.
As explained by the Fifth Circuit:
The Fifth Amendment guarantees a criminal defendant the right to be tried only on
charges presented in an indictment returned by a grand jury. Consequently, [o]nly
the grand jury can amend an indictment to broaden it. The constructive amendment
of an indictment violates a defendant's Fifth Amendment rights.
A constructive amendment of the indictment occurs when the government changes
its theory at trial, allowing the jury to convict on a broader basis than that alleged
in the indictment, or when the government proves an essential element of the crime
on an alternate basis authorized by the statute but not charged in the indictment.
Constructive amendments can be either implicit or explicit and can arise through
the actions of the prosecutor (offering evidence at trial) or the actions of the court
(through jury instructions).
United States v. Flores, No. 22-50910, 2025 WL 561417, at *6 (5th Cir. Feb. 20, 2025) (internal
quotation marks and footnotes omitted), cert. denied, 145 S. Ct. 2863 (2025); see also United
States v. Lockhart, 844 F.3d 501, 514 (5th Cir. 2016) ("When the indictment alleges a particular
set of facts as forming the basis for the defendant's violation of a statute, but the trial court allows
evidence of other facts not alleged in the indictment to form the basis of the jury's guilty verdict,
40
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 40 of 44

this court finds a constructive amendment."); United States v. Millet, 123 F.3d 268,272 (5th Cir.
1997) ("A constructive amendment to the indictment occurs when the jury is permitted to convict
the defendant on a factual basis that effectively modifies an essential element of the offense
charged in the indictment. However, all factual variations do not rise to the level of a constructive
amendment. 	This Court must distinguish between a constructive amendment to the indictment
and mere variations between the indictment and proof.") (citations omitted).
Movant argues that the "conspiracy" and "knowledge" elements of the charged crimes
were not met because he is apparently under the impression that "code word evidence" was
presented to the grand jury but there was no evidence at trial that he and his mother used code
words in their text messages. (See Civ. Dkt. No. 16 at 12-13).
The indictment charged Movant with six counts related to drug trafficking. 	(See Crim.
Dkt. No. 14). 	The criminal complaint alleged that Movant had been in constant communication
with his mother via messaging while transporting the items and that his mother had coordinated
what items were to be transported. 	(See Crim. Dkt. No. 6). Movant fails to point to anything in
the record that supports his contention that the grand jury relied on "code word" evidence in
returning the indictment. 	At trial, Agent Palomo-who was testifying as the case agent who
interviewed Movant-testified about the text messages exchanged between Movant and his mother
and her coordination of the venture. (See, e.g., Crim. Dkt. 63 at 72, 180; Crim. Dkt. 65 at 73). The
factual basis alleged in the criminal complaint (see Crim. Dkt. No. 6) is the same set of facts that
the government proved at trial. As explained by the Fifth Circuit on direct appeal, the evidence
presented at trial was sufficient for the jury to find that Movant possessed the requisite knowledge:
Garcia's admissions about his plans with the van's driver and attempts to withhold
details about the van from investigators weakens the plausibility that the van driver
concealed the illegal substances in the box of candy without Garcia's knowledge.
Considered together, Garcia's demeanor, inconsistent statements, admissions to
41
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 41 of 44

several lies, implausible story, and the value of the illegal substances provided a
sufficient basis for the jury to find Garcia had the requisite knowledge. E.g., United
States v. Miller, 146 F.3d 274,281 (5th Cir. 1998) (concluding cumulative evidence
"provided a substantial basis" for jury's finding).
Garcia, No. 23-40269, 2024 WL 2131517, at *2.
Because Movant has not shown that his appeal would have had a different result had Mr.
Sully included this issue on direct appeal, this claim should be denied.
V. 	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. 13) be GRANTED, that Movant's
motion under§ 2255 (Civ. Dkt. No. 1) should be DENIED, and this case be DISMISSED with
prejudice.
Certificate of Appealability
It is recommended that the District Court deny a certificate of appealability. 	An appeal
may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless
a circuit justice or judge issues a certificate of appealability." 	28 U.S.C. § 2253(c)(l)(A). 	The
Rules Governing Section 2255 Proceedings instruct that the District Court "must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant." R. Gov. Sec. 2255
Proceedings 11. Because the undersigned recommends the dismissal ofMovant's § 2255 action,
it must be addressed whether Movant is entitled to a certificate of appealability (COA).
A movant is entitled to a COA "only if the applicant has made a substantial showing of the
denial of a constitutional right." 	28 U.S.C. § 2253(c)(2). 	"The COA determination under §
225 3 (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
42
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 42 of 44

petitioner must demonstrate that reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,484 (2000); see
also United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (applying the Slack standard to a
COA determination in the context of a§ 2255 proceeding). 	An applicant 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 prisoner must show both
that "jurists of reason would find it debatable whether the petition states a valid claim of 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.
For the reasons noted, reasonable jurists would not find it debatable or wrong that the Court
is correct in finding that Movant's claims are without merit. Accordingly, it is recommended that
the District Court deny a COA.
Notice to the Parties
The Clerk shall send copies of this Report and Recommendation to Movant, 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 written
objections to th!;, proposed findings and recommendations contained in this report within 14 days
after service shall bar an aggrieved party from de nova review by the District Court of the proposed
findings and recommendations and from appellate review of factual findings or legal conclusions
accepted or adopted by the District Court, except on grounds of plain error. See Douglas v. United
Serv. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en bane), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(l).
43
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 43 of 44

The Clerk shall provide copies of this order to Movant and counsel for Respondent.
DONE at McAllen, Texas, on 18 th day of December , 2025 .
United States Magistrate Judge
44
Case 7:24-cv-00411 Document 17 Filed 12/19/25 in TXSD Page 44 of 44