Plata-Garza v. United States of America

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
JESUS ALEJANDRO PLATA-GARZA
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.
§
§
§ 	CIV. NO. 7:25-0 0171
§
§ 	CRIM. NO. 7:23-00679-2
§
§
MEMORANDUM AND RECOMMENDATION
Petitioner, Jesus Alejandro Plata-Garza, a federal prisoner proceeding prose, initiated this
action by filing a Motion on April 11 , 2025, under 28 U.S .C. § 2255, contesting the validity of his
conviction and sentence. 	(Civ. Dkt. No. 	1).1 	This case was subsequently referred to the
undersigned magistrate judge for memorandum and recommendation pursuant to 28 U .S .C. §
636(b) and LR 72. On July 3, 2025, Respondent, United States, filed The United States' Response
to Plata-Garza's 28 U.S.C. § 2255 Motion ("Respondent's Motion" ). (Civ. Dkt. No. 4). Petitioner
responded by filing Reply to Government's Response to § 2255 Motion ("Petitioner's Reply") on
August 12, 2025. (Civ. Dkt. No. 5).
Petitioner raises five claims of ineffective assistance of counsel in violation of the Sixth
Amendment of the U.S. Constitution. (Civ. Dkt. No. 1 at 2-3). For the reasons discussed further
in this Memorandum and Recommendation, the undersigned concludes that Petitioner's § 2255
petition should be denied because his claims are either refuted by the record, conclusory, or
meritless.
1 Citations to Criminal Docket Entries pertain to United States v. Torres-Olvera , et al., 7:23-cr-00679-2;
citations to Civi l Docket Entries pertain to filings within this habeas proceeding.
1
United States District Court
Southern District of Texas
ENTERED
January 28, 2026
Nathan Ochsner, Clerk
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After careful review of the record and relevant law, the undersigned recommends that
Respondent's Motion (Civ. Dkt. No. 4) be GRANTED and Petitioner's habeas petition under §
2255 (Civ. Dkt. No. 1) be DENIED. 	It is further recommended that Petitioner's § 2255 petition
(Civ. Dkt. No. 	1) be DISMISSED with prejudice, and the case be closed. 	Finally, it is
recommended that the District Court DECLINE to issue a certificate of appealability.
I. 	BACKGROUND AND PROCEDURAL HISTORY
A. 	Facts and Circumstances of Arrest
Petitioner's arrest came as a result of a joint investigation between the U.S. Drug
Enforcement Agency (DEA) and the Hidalgo County Sheriff's Office (HCSO). (Crim. Dkt. No.
95 at 4, 15). 	On September 20 , 2022, electronic surveillance revealed suspicious activity at
Petitioner 's residence in San Juan, Texas. 	(Id. at 4, 16). Video footage identified a Volkswagen
SUV driven by an unindicted co-conspirator, Ruben Dario Martinez-Alvarado ("Martinez-
Alvarado"), a Toyota sedan driven by co-defendant Arturo Torres ("Torres"), and a Subaru SUV
driven by Petitioner, arrive simultaneously at the residence. (Id.). 	Soon after, Petitioner retrieved
a black handbag from the Toyota sedan and returned to the garage. (Id.) . Martinez-Alvarado then
opened the trunk of the Toyota sedan, and Torres approached the trunk. 	(Id.). 	Subsequently,
Martinez-Alvarado left in the Volkswagen SUV and Torres followed in the Toyota sedan. 2 (Id.).
Torres was later spotted on Expressway 83 following directly behind the Volkswagen SUV.
(Crim. Dkt. No. 95 at 4, 17). Upon their arrival at the destination in Brownsville, Texas, a DEA
agent observed Martinez-Alvarado, standing next to Torres, with a black bag possibly containing
drug proceeds that was in the trunk of Torres' vehicle. (Id.). Both entered the residence, and then
2 A vehicle query revealed that the Toyota sedan was registered to Arturo Torres while the Volkswagen SUV
was registered to Oscar Alfredo Padilla. (Crim. Dkt. No . 95 at 4, ,r6).
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shortly departed in separate vehicles. 	(Id.) . 	HCSO investigators observed Martinez-Alvarado
return to his residence while Torres traveled to McAllen, Texas. (Id. at 5, 17). Another unindicted
co-conspirator, Ruben Eduardo Martinez-Salinas ("Martinez-Salinas"), 	arrived at Martinez-
Alvarado's residence for a short time before leaving again. 	(Id.). 	Martinez-Alvarado left his
residence and was followed to the parking lot of Guitar Center in Brownsville, Texas, where he
met with an unknown male. 	(Id.) . 	Martinez-Alvarado departed, and while surveillance was
maintained at his residence, agents initiated a traffic stop on Martinez-Salinas, where it was learned
that he was Martinez-Alvarado's son. 	(Id.). 	Martinez-Salinas was escorted back to Martinez-
Alvarado's residence for questioning. (Id.).
Martinez-Alvarado's spouse consented to a search of the residence in Brownsville. (Crim.
Dkt. No. 95 at 5, 18). 	The search resulted in the discovery of several bags and shoe boxes
containing a total of $733 ,480.00 in U.S. currency, wrapped in a manner consistent with drug
proceeds. (Id.) . Agents also discovered cocaine with a gross weight of .92 grams next to the bulk
cash, and 71.4 grams of cocaine inside a glove found in the kitchen. 	(Id.). 	The bulk cash and
narcotics were seized; however, Martinez-Alvarado 's spouse and Martinez-Salinas were not
arrested due to insufficient evidence, and Martinez-Alvarado had not been located. (Id.).
On October 13, 2022, HCSO investigators established surveillance on a car wash business
in Pharr, Texas, owned by Petitioner. (Id. at 5, 19). Torres was observed placing a package in the
rear seat of his vehicle parked at the car wash business. (Id.). DEA agents identified Torres as an
employee at the car wash who delivered cocaine and drug proceeds at the direction of Petitioner.
(Id.). 	Petitioner and Torres departed the car wash in separate vehicles. 	(Id.). 	Later that day, an
unindicted co-conspirator, Adan Valladares-Ortiz ("Valladares-Ortiz"), arrived at the carwash
business accompanied by an unidentified male. (Id. at 5-6, 110). The unidentified male left shortly
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thereafter, and Petitioner and Valladares-Ortiz departed together. (Id.). Agents observed Petitioner
placing a bag and a barber chair in the cargo area of the SUV. (Id. at 6, 110). Agents followed the
duo to Petitioner's residence. 	(Id.). 	DEA Special Agent Lucio ("SA Lucio") established
surveillance at the location and observed an unindicted co-conspirator, Hector Ramiro Hernandez-
Davila ("Hernandez-Davila"), arrive in a truck. (Id.).
Moments later, Hernandez-Davila departed and an HCSO deputy initiated a traffic stop for
failing to maintain a single lane. 	(Crim. Dkt. No. 95 at 6, 111). A consensual search of the truck
revealed $50,200 in U.S. currency inside a bag located in the driver 's side floorboard . 	(Id.).
Hernandez-Davila was subsequently arrested for money laundering, and the bulk cash was seized.
(Id.). 	A search of Hernandez-Davila's residence yielded negative results for evidence of money
laundering. 	(Id.). 	As such, Hernandez-Davila was released that day without prosecution and
deported to Mexico. (Id.) .
On November 18 , 2022, a Task Force Officer (TFO) proceeded to Petitioner's residence in
San Juan, Texas, after receiving confidential information that Petitioner had just received a cocaine
load. (Id. at 6, 112). The TFO observed Torres ' vehicle and another truck parked outside. (Id.).
Shortly after, Torres departed in his vehicle and Petitioner followed in the truck. (Id.). An HCSO
deputy initiated a traffic stop on Torres after it appeared Petitioner was escorting him to another
location. (Id.). Torres consented to a search of the vehicle. (Id.) . Torres was questioned about a
box of variety of chips labeled "Fun Flavor Mix," and Torres claimed the box contained chips.
(Id.). 	When questioned about the unusual weight of the box, Torres claimed he was unaware of
the contents of the box, and that he received it from an unknown male for delivery to another
unknown male. (Id.). A consensual search of the box resulted in the discovery of seven bundles
of cocaine wrapped in plastic and two small baggies of cocaine. (Id.). Torres was arrested and the
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narcotics were seized. (Id.). The seven bundles, four of which had a stamp " A21 " on one side and
three with "FOX 7" on one side, had a total gross weight of 7.10 kilograms, while the two small
baggies had a gross weight of 19 .7 grams. (Id.) . Laboratory analysis yielded positive results for
cocaine with a net weight of 6.97 kilograms. (Id. at 6-7, ifl 3).
On the same day, Torres waived his Miranda rights and stated that he was uncertain if a
male or female placed the box in his vehicle, which he picked up on behalf of an acquaintance who
resided in Mexico. 	(Crim. Dkt. No. 95 at 7, if14). 	Torres claimed that the acquaintance was
supposed to coordinate the pickup and delivery address, that he was employed at a car wash, and
that he was unaware of the contents of the box. 	(Id.) . 	Torres was released pending further
investigation. (Id.) .
On May 4, 2023 , agents executed an arrest warrant on Petitioner at his residence. (Id. at 7,
if 15). Five cellular telephones were seized. (Id.) . Petitioner agreed to waive his Miranda rights,
and stated that on November 18 , 2022, he had packaged cocaine at his residence and Torres took
possession of the cocaine. 	(Id.) . 	Petitioner added that he escorted Torres to McAllen, Texas,
because he did not want Torres to get stopped by law enforcement. 	(Id.). 	Petitioner claimed he
had been working for Hernandez-Davila, who was found with $40,000 to $50,000 in drug proceeds
on October 13 , 2022, that was picked up from Petitioner's residence. (Id.) . Petitioner stated that
Hernandez-Davila would instruct him to pick up multiple kilograms of cocaine and deliver the
narcotics to Hernandez-Davila's associates. (Id.) . Petitioner agreed he would conduct a recorded
telephone call with the individual Petitioner identified as the source of the supply for the narcotics,
requesting fo ur kilograms. (Id.). Said individual advised that Petitioner would be receiving a load
soon. (Id.).
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In an interview, Petitioner admitted to purchasing his residence and GMC truck with
proceeds from the drug operation. 	(Crim. Dkt. No. 95 at 7, ,16). 	However, Petitioner 's spouse
later claimed that the residence was purchased with the assistance of her parents, along with what
they had saved. (Id. at 8, ,17) . Petitioner further conceded that his residence was used on multiple
occasions to foster the drug trafficking operation. (Id. at 8, ,16). Petitioner also claimed that some
of the drug proceeds seized from Martinez-Alvarado's residence had come from his own residence
and were delivered by Arturo Torres. 	(Id.) . 	Petitioner clarified that he worked for another
individual, who was the owner of said drug proceeds, and that Petitioner had parted ways with him
after the money seizure. 	(Id.). A consensual search of Petitioner's phone revealed an image of a
customer receipt for a parcel package that Petitioner admitted to containing drug proceeds. (Id. ).
On May 4, 2023 , task force agents executed an arrest warrant on Arturo Torres in McAllen,
Texas. (Crim. Dkt. No. 95 at 8, ,18) . Agents discovered a small "baggie containing cocaine" in a
dresser drawer. 3 	(Id.). 	After being read his Miranda rights Arturo Torres waived them and
admitted to being aware he was transporting cocaine bundles on November 18, 2022, which he
picked up from Petitioner's residence. 	(Id.). 	Arturo Torres was contacted by Petitioner and
instructed to pick up the cocaine and store it at his apartment. (Id.). After placing the bundles in
his vehicle, Arturo Torres was supposed to be escorted by Petitioner. 	(Id.). 	After the narcotics
seizure, the two met and Petitioner threatened Arturo Torres if he was cooperating with law
enforcement. (Id.) . Arturo Torres confessed he had been trafficking narcotics and drug proceeds
on behalf of Petitioner since 2020. (Id.). Arturo Torres further claimed Martinez-Alvarado would
transport drug proceeds to Brownsville and kilograms of cocaine to Petitioner's residence in San
Juan, and that Petitioner was working on behalf of another individual. (Id.).
3 The substance was field tested, and the result was positive for cocaine; however, because the trace amount
was very small, it was not viable to submit as evidence. (Crim . 0kt. No. 95 at 8,118).
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On November 14 , 2023, SA Lucio confirmed the details of the investigation leading to the
arrest of Petitioner and Arturo Torres. 	(Crim. Dkt. No. 95 at 8, i119). 	SA Lucio reiterated that
Petitioner was responsible for coordinating the transportation of cocaine loads and drug proceeds
for another individual, and that Arturo Torres, Martinez-Alvarado, and Hernandez-Davila worked
under the direction of Petitioner during his operation. (Id.). 	There was insufficient evidence to
implicate Oscar Padilla and Valladares-Ortiz in the operation. (Id.).
Ultimately, Petitioner was found to function in the role of coordinator or manager in the
transportation and storage of cocaine along with drug proceeds. 	(Crim. Dkt. No. 95 at 8, i121) .
Specifically, on September 20, 2022, Arturo Torres delivered drug proceeds to Martinez-Alvarado
on behalf of Petitioner. 	(Id.) . 	Then, on November 18 , 2022, Petitioner was responsible for
packaging seven bundles of cocaine at his residence which were picked up by Arturo Torres to
transport and store at his apartment. 	(Id. at 9, i121). 	On the same occasion, Petitioner escorted
Arturo Torres during the transportation of the cocaine. (Id.). 	Martinez-Alvarado and Hernandez-
Davila both transported drug proceeds on behalf of Petitioner, and Martinez-Alvarado transported
narcotics to Petitioner. 	(Id.) . 	As a result, the Probation Officer found Petitioner to be more
culpable because at least three individuals, both indicted and unindicted co-conspirators, acted
under the direction of Petitioner, and Petitioner was found to be responsible for seven bundles of
cocaine (6.97 kilograms of net weight) and 19.7 grams of cocaine seized on November 18 , 2022.
(Id.).
B. 	District Court Proceedings
On May 3, 2023, a federal grand jury in the Southern District of Texas, McAllen Division,
handed down an indictment against Petitioner. (Crim. Dkt. No. 1) . Petitioner was indicted on two
counts:
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(1) 	On or about November 18, 2022, Petitioner did knowingly and intentionally
conspire and agree together with other persons to possess with intent to distribute a
controlled substance, namely five (5) kilograms or more of a mixture or substance
containing a detectable amount of cocaine, a Schedule II controlled substance, in
violation of 21 U.S.C. §§ 846, 841(a)(l), and 841(b)(l)(A).
(1) 	On or about November 18 , 2022, Petitioner did knowingly and intentionally
possess with intent to distribute a controlled substance of over five (5) kilograms,
namely seven (7) kilograms of a mixture or substance containing a detectable
amount of cocaine, a Schedule II controlled substance, in violation of 21 U.S .C. §§
841(a)(l), 841(b)(l)(A), and 2.
(Crim. Dkt. No. 1 at 1-2). Additionally, the indictment called for the forfeiture of any property or
proceeds obtained from, derived as a result of, or intended for use during the commission of the
offense pursuant to 21 U.S.C. § 853. (Id. at 2-3).
Subsequently, on May 3, 2023, an arrest warrant was issued based on the indictment for
Petitioner's arrest. (Crim. Dkt. No. 5). The arrest warrant was executed on May 4, 2023. (Crim.
Dkt. No. 8). 	Petitioner's initial appearance was held before the undersigned. 	(See Crim. Dkt.
Entry, Dated May 5, 2023). Ther e, Petitioner advised that his family was seeking retained counsel
on his behalf. 	(Crim. Dkt. No. 109 at 18 :9-15).4 On May 8, 2023 , Petitioner's retained counsel,
Crispin Quintanilla, III ("Retained Counsel"), filed a Notice of Appearance.5 (Crim. Dkt. No. 20).
On October 23 , 2023 , Petitioner filed a signed two-page plea agreement. (Crim. Dkt. No.
62). In exchange for Petitioner's guilty plea as to Count One of the Indictment and waiving his
interest in any asset subject to a forfeiture proceeding, Government agreed to recommend a two-
4 Crim. Dkt. No. 109 is a transcript of the initial appearance held on May 5, 2023.
5 Petitioner initially retained Crispin C.J . Quintanilla, III ("Retained Counsel") as counsel on May 8, 2023.
(S ee Crim . Dkt. No. 20) . Mr. Quintanilla filed a Motion to Withdraw as Attorney on December 18 , 2023.
(S ee Crim. Dkt. No . 74). The court granted the motion on December 21 , 2023 , and appointed Mauricio
Garcia ("Appointed Counsel" or "Counsel") as counsel. (See Crim. Dkt. No. 80). Mr. Garcia filed a Mot ion
to Withdraw as Attorney on April 1, 2024. (See Crim . Dkt. No . 99). The court granted the motion on Apri l
4, 2024, and Mr. Garcia was replaced by Ro lando Garza (" Appellate Counsel"), who maintained
representation until the Fifth Circuit di smissed him from the representation on November 21 , 2024. (S ee
Crim. Dkt. Nos. 101 , 123).
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level reduction for acceptance of responsibility pursuant to U.S.S .G. § 3E 1.1 (a) and recommend
that the remaining count of the indictment be dismissed at the time of sentencing. (Id.).
The same day, Petitioner pled guilty at his re-arraignment before the Honorable Magistrate
Judge Hacker. (See Crim. Dkt. Entry, Dated October 23 , 2023). There, through the assistance of
a 	Spanish-speaking 	interpreter, the 	court 	questioned 	Petitioner 	about 	Retained 	Counsel's
performance before accepting Petitioner's plea: 6
THE COURT: Now, gentlemen, I need to make sure you had enough time to discuss
your case with your attorneys and get your questions answered so that you feel
comfortable going forward with a decision today.
THE COURT: Mr. Plata, have you had enough time to discuss your case with your
attorney?
DEFENDANT PLATA GARZA: Yes, Your Honor.
THE COURT. Are you satisfied with his legal representation?
DEFENDANT PLATA GARZA: Yes , Your Honor.
(Crim. Dkt. No. 110 at 11 :15-12:5).7
The court then confirmed that Petitioner intended on pleading guilty to Count One of the
Indictment. (Crim. Dkt. No. 110 at 13 :13-14).
Next, the court explained to Petitioner what a conspiracy is , and then explained the charge
under Count One:
On or about November 18 , 2022, in the Southern District of Texas, and
jurisdiction of the Court, that you did knowingly and intentionally conspire and
agree together with other persons, known and unknown to the Grand Jurors, to
possess with the intent to distribute a controlled substance. 	It's saying the
controlled substance involved in the conspiracy was five kilograms or more of a
mixture or substance containing a detectable amount of cocaine, a Schedule II
controlled substance. 	In violation of 21 U.S .C. 846, 841 , subsection (a) (1),
subsection (b) (1) (A).
6 Judge Hacker proceeded with the re-arraignment hearing as to both co-defendants. Questions directed to,
and answers provided by, the co-defendant, Arturo Torres, are omitted in this exchange. At the beginning
of the hearing, Judge Hacker placed Petitioner under oath and advised him " not to li e to the Court" and if
Petitioner did, then the government could charge Petitioner with perjury. (Crim. Dkt. No. 110 at 4:7-24).
Petitioner acknowledged that he understood said admonishment. (Id. at 5:5-6).
7 Crim. Dkt. No . 110 is a transcript of the re-arraignment hearing he ld on October 23 , 2023.
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(Crim. Dkt. No. 110 at 13 :14-14:7).
Additionally, the court highlighted what the Government would have to prove under the
cited provisions. (Id. at 14 :8-15:6). Petitioner testified that he understood the charge, and that he
had no questions regarding such. (Id. at 15:7-12). Judge Hacker emphasized the right to have an
attorney appointed throughout the case, even though Petitioner retained his own counsel. 	(Id. at
16:3-11 ). The court clearly articulated the rights Petitioner would be giving up, such as persisting
with his previous plea of"not guilty" and going to trial before a jury. (Id. at 16: 16-18). If Petitioner
proceeded to trial, he would have thirty (30) days to prepare for such with counsel. (Id. at 16:18-
19). Further, the Government would be required to prove Petitioner's guilt based on proof beyond
a reasonable doubt. 	(Id. at 16:19-21). 	At trial, Petitioner would have the right to confront the
Government's witnesses, the right to present evidence and witnesses, the right to testify or, of equal
importance, the right to remain silent. 	(Id. 	at 16:24-17: 13). 	Petitioner confirmed that he
understood those rights and further testified that he understood he would be giving them up by
pleading guilty. 	(Id. at 17 :18-18:12). Nevertheless, Petitioner wished to move forward with the
guilty plea. (Id. at 18:13-22).
Next, Petitioner testified that he spoke with Retained Counsel regarding the potential
punishment if he was found guilty. 	(Crim. Dkt. No. 110 at 18:23-19:4). 	Despite this statement,
the court admonished Petitioner as to the penalty of pleading guilty to Count One of the Indictment:
a minimum mandatory sentence of ten (10) years in prison, and a maximum oflife in prison. (Id.
at 19:5-10). 	Further, the court warned that there are only two exceptions that could foster the
discretion to sentence Petitioner below the minimum mandatory sentence, the safety valve
exception or by offering or giving substantial assistance to the Government. (Id. at 19 :11-19). The
court added that Petitioner was facing a minimum of a five year term of supervised release and a
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potential maximum of up to life term of supervised release. 	(Id. at 20:4-7). 	Finally, the court
advised Petitioner that he was subject to a fine of up to $10 million, based on his ability to pay,
and a $100 special assessment, irrespective of his ability to pay, to which Petitioner testified that
he understood. (Id. at 20 :20-21:3).
Judge Hacker then explained the mechanics of the sentencing hearing. 	The court will
consider the Guidelines, and everything presented in the case, but the ultimate sentence could be
above, below, or within the Guidelines range. 	(Crim. Dkt. No. 110 at 21:18-22:10). 	Petitioner
confirmed he understood. 	(Id. at 22:11-14). 	The court warned that any estimate that Retained ,
Counsel had identified is an "estimate" and "it is not a promise, it is not a guarantee." (Id. at 22 : 15-
20). Despite this, if the District Judge chose a different sentence than that discussed with Retained
Counsel, Petitioner would not be able to withdraw his guilty plea. (Id. at 22:25-23: 1). Petitioner
testified that he understood. (Id. at 23 :4-5). The court then questioned Petitioner as to whether he
understood everything to that point, to which Petitioner responded in the affirmative and that he
had no questions. (Id. at 23: 11-15).
Judge Hacker presented Petitioner's signed plea agreement. 	(Id. at 26 :2-8). 	Petitioner
testified that he went through the Agreement in detail with Retained Counsel. 	(Id. at 26:9-11 ).
The court summarized the Agreement as follows :
Now to summarize your Plea Agreement, it states that you are agreeing to
plead guilty to Count One of the Indictment. You are agreeing to waive any and all
interest in any asset, which is [the] subject of a related administrative judicial
forfeiture proceeding, whether criminal or civil, to include the assets listed [in] the
United States First and Second Supplement to the Notice of Forfeiture. And you're
agreeing to the forfeiture of those assets and property.
In return, the Government says it will recommend your Guideline offense
level decrease by two levels under Section 3E 1.1 (a) if you clearly demonstrate
acceptance of responsibility. And the Government says it will recommend that the
remaining counts of the Indictment be dismissed at the time of sentencing.
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(Crim. Dkt. No. 110 at 26:14-27 :5). Petitioner testified that is what he understood the agreement
with the Government to be. (Id. at 27:6-8). However, the court further inquired into the specifics
of the forfeiture agreement. 	The Government claimed that Supplemental Notice One and Two
were filed to reflect the specific assets for which forfeiture was sought, namely a home and a
vehicle. (Id. at 27:9-20). The court emphasized that Petitioner was agreeing to waive any and all
interest in those assets, and Petitioner confirmed that he understood. (Id. at 27:22-28 :6). Petitioner
testified that he had not been promised anything outside of the Plea Agreement, and the court
explained that the District Judge could choose to follow it or not follow it, and that if the District
Judge chose not to follow it, Petitioner would be unable to withdraw his guilty plea. (Id. at 28: 10-
22). Petitioner assured the court that no one had forced, coerced, or threatened him to plead guilty,
that he was entering the plea of guilty, freely and voluntarily, and that he was entering said plea of
guilty because he did what the Government accused him of doing. (Id. at 28:23-29 :17). The court
then cautioned that a plea of guilty would result in deportation after the sentence was served, and
Petitioner testified that he understood. (Id. at 29: 18 -30:3).
To reiterate, the court ad vised:
Now, gentlemen, we 'v e talked about a lot today. 	We ' ve talked about the
charge that you're pleading to in the Indictment. We've talked about your right to
a jury trial and the rights that go with it. We 've talked about the statutory penalties.
We ' ve talked about the Sentencing Guidelines. 	We 've talked about potential
immigration consequences. We ' ve talked about the plea agreement.
And the point it [sic] , nothing that I've covered with you today should have
been a surprise to you. 	You should have discussed all of these areas with your
attorney before seeing me. 	If for some reason you don't remember discussing
something with the attorney that I have covered with you today, that's okay, answer
the next question, no . And I'll give you more time with your attorney. You can go
over the areas you don't remember discussing. You can ask questions about them.
And I'll just bring you back up a little later and see if you sti ll want to enter a guilty
plea.
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(Crim. Dkt. No. 110 at 30:4-22). In addition, the court queried: "Have you discussed everything
that I have covered with you today with the attorney before seeing me?" 	(Id. at 30:23-25).
Petitioner testified that he had. (Id. at 31 :3-4).
Petitioner pleaded guilty, and the Government recited the factual stipulation as follows :
From on or about November 18 , 2022, the defendant, [Petitioner], did
knowingly and intentionally conspire and agree with others to possess with intent
to distribute more than five kilograms of cocaine, a Schedule II controlled
substance. The [co-]defendant, Mr. Torres, did knowingly and intentionally possess
with intent to distribute more than five kilograms of cocaine, a Schedule II
controlled substance.
On said date, [Petitioner] possessed and packaged seven kilograms of
cocaine at his home at [Address redacted] in San Juan, Texas. 	[Petitioner] was in
communication with Mr. Torres, who would transport this cocaine.
Mr. Torres later retrieved the seven ki lograms of cocaine from [Petitioner's]
Summer Heights home. A traffic stop was conducted on Mr. Torres in McAllen as
he was transporting the cocaine for further distribution.
The defendant, [Petitioner] , furthered their conspiracy by providing the
controlled substance for distribution. 	The defendant, [Petitioner], knew of the
unlawful purpose of their agreement and joined in it willfully.
The defendant, Mr. Torres, knowingly and intentionally possessed the
controlled substance in his vehicle and the intention was to distribute to another
individual.
(Crim. Dkt. No. 110 at 31:24-33:1). Petitioner agreed with the facts as proffered. (Id. at 33:5- 7).
Despite Petitioner's concession, the court prodded further regarding the facts of the offense. 	In
response to the court's questions, Petitioner confirmed, again, that Mr. Torres arrived at Petitioner's
residence, that Petitioner handed Mr. Torres seven kilograms of cocaine, that Petitioner had packed
the seven kilograms of cocaine himself, that Petitioner knew it was cocaine, and that the cocaine
was to be transported to another person. (Id. at 34:4-19). The court ultimately found that Petitioner
made a knowing and voluntary plea, found the factual basis sufficient to support the plea, and
recommended that the District Judge find Petitioner guilty and sentence him accordingly. (Id. at
35:12-20).
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That day, the court ordered a Presentence Investigation Report (PSR) to be completed.
(Crim. Dkt. No. 63). On October 31 , 2023 , the Government filed a Motion for Preliminary Order
of Forfeiture, specifically identifying real property in San Juan, Texas and a Land Rover vehicle.
(Id. at 1). The court granted said order on November 6, 2023. (Crim. Dkt. No. 67). 	On January
11 , 2024, Hidalgo County, Texas, filed Petition for Adjudication of Interest in Property with
reference to the property listed in the forfeiture Order. (Crim. Dkt. No. 85 ; see Crim. Dkt. No. 63).
On January 17 , 2024, Petitioner's wife, Gloria Rodriguez, filed Notice oflnterest-Innocent Spouse
Claim. 	(See Crim. Dkt. No. 89) . On January 25 , 2024, the Government filed a stipulation as to
Hidalgo County, and on March 18 , 2024, filed another stipulation as to Ms. Rodriguez, recognizing
their respective interests in the subject property. (See Crim. Dkt. Nos. 90, 92). The Government
filed a Motion for Order of Forfeiture at Sentence on March 26, 2024. (See Crim. Dkt. No. 97).
The revised PSR was filed on March 20 , 2024. (See Crim. Dkt. No. 95). There, pursuant
to the 2023 Guidelines Manual, the Probation Officer (PO) found the base offense level to be 30.
(Id. at 10 , 128). 	The PO added a two-level adjustment for being a coordinator/manager in the
transportation and storage of cocaine along with drug proceeds pursuant to U.S .S.G. § 3B 1.1 (c ).
(Id. 	at 	10-11, 131 ). 	The PO then implemented a two-level deduction for acceptance of
responsibility pursuant to U.S.S.G. § 3El.l(a) , resulting in an ultimate offense le vel of 30. (Id. at
11, 1134, 36). The PO found Petitioner to have a criminal history score of six (6), which placed
Petitioner in the criminal history category of III. (Id. at 16 , 152). With these figures in mind, the
PO found the guideline range, with the anticipated additional one-level reduction for acceptance
of responsibility, to be 108-135 months. 	(Id. at 18 , 168). 	However, because the charged offense
has a statutory minimum of ten (10) years, the range became 120 to 135 months. (Id.). Further, if
a sentence of imprisonment was imposed, a term of at least five (5) years of supervised release
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would be required. (Id. at 18-19, 170). Finally, a maximum fine of $10 million could be imposed,
in addition to a $100 special assessment. (Id. at 19, 176). Petitioner filed his lone objection to the
PSR on December 15, 2023, seeking full credit for Acceptance of Responsibility and attaching his
Acceptance of Responsibility Statement. 	(Crim. Dkt. No. 73; see Crim. Dkt. No. 73-1). 	In his
Statement, Petitioner agreed to the factual summary, including the possession of seven bundles of
cocaine, and admitted he knew his actions were illegal and no one forced him to do them. (Crim.
Dkt. No. 73-1 at 1). 	Further, Petitioner conceded he became involved because he thought it was
easy money without considering the consequences and subsequently apologized for his actions.
(Id.).
Petitioner's sentencing hearing was held on March 27 , 2024, before the Honorable District
Judge Micaela Alvarez, where Petitioner was represented by Appointed Counsel Mauricio Garcia.
(See Crim. Dkt. Entry, Dated March 27, 2024). Judge Alvarez inquired as to whether Counsel had
the opportunity to review the PSR,8 to which Counsel responded he and Petitioner had reviewed
it. (Crim. Dkt. No. 111 at 4:6-14).9 Next, the Government moved for-and the court granted- 	a
third point for acceptance of responsibility. (Id. at 5 :4- 7). The court then explained that Petitioner
was not eligible for either of the exceptions to the mandatory minimum sentence and that the
commensurate range was 120 to 135 months. 	(Id. at 5:9-6:14). 	Petitioner testified that he
understood. (Id. at 6: 15-16). The court then referred to the forfeiture issue and acknowledged the
interest of Petitioner 's wife and the stipulation reflecting such. 	(Id. at 8:22-9: 16). After hearing
Counsel's arguments and Petitioner's allocution, the court sentenced Petitioner to a term of 135
8 The PSR was crafted using the 2023 edition of the U.S. Sentenc in g Guidelines Manual. (See Crim. 0kt.
No. 95 at I 0, ,J27).
9 Cr im . 0kt. No. 111 is a transcript of the sentencing hearing held on March 27, 2024. At the beginning of
the hearing, the court clerk placed Petitioner under oath. (Cr im . 0kt. No. 111 at 3: I 7-23) .
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months in custody, to be followed by a five-year term of supervised release. (Id. at 17:17-21). The
court further found Petitioner did not have the ability to pay a fine, so the court waived the fine
but implemented the $100 special assessment, as mandated by statute. (Id. at 18: 11-13 ). Finally,
the court ordered the forfeiture of Petitioner's interest in the property referenced in the forfeiture
document. (Id. at 18: 13-15).
During the sentencing hearing, Counsel for Petitioner and the Government approached the
court. 	There, Counsel notified the court of Petitioner's multiple debrief sessions with the
Government. (Crim. Dkt. No. 118 at 3:11-12).10 The Government explained that, while Petitioner
did so , "it did not get to a lev el where [the Government] would file a motion[.]" (Id. at 3:16-19).
Specifically, the Government clarified Petitioner "did debrief multiple times[,]" and he "did
provide information." 	(Id. at 3: 23-24). 	However, because the Government was "still in
investigation", they already had a lot of the information. 	(Id. at 3:25-4:1). 	In cognizance of
Petitioner's attempted assistance, the Government agreed with Counsel in requesting a sentence
of 120 months. (Id. at 3:19-22).
Judgement was rendered as to Petitioner on April 11 , 2024. (Crim. Dkt. No. 104).
C. 	Appeal
Petitioner filed a Notice of Appeal on April 1, 2024. 	(Crim. Dkt. No. 98). 	Petitioner's
Appellate Counsel 11 filed a Brief for Appellant and an Amended A nders Brief for Appellant. See
Brief for Appellant, United States v. Plata-Garza, No. 24-40206, 2024 WL 3467724 (5th Cir. July
10 , 2024); Amended Anders Brief for Appellant, United States v. Plata-Garza, No. 24-40206, 2024
1
° Crim. 0kt . No . 118 is a transcript of the bench conference during the sentencing hearing held on March
27 , 2024.
11 As noted, Mr. Rolando Garza served as Appellate Counsel.
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WL 3697152 (5th Cir. July 31 , 2024). 	There, Appellate Counsel moved to withdraw as counsel
based on A nders v. California, arguing there was no nonfrivolous issue regarding Petitioner's
guilty plea, nor was there a nonfrivolous issue regarding Petitioner's sentence. Amended A nders
Appellants Brief, United States v. Plata-Garza, No. 24-40206, 2024 WL 3697152, at *2-5 (5th Cir.
July 31 , 2024 ).
Accordingly, the Fifth Circuit issued a written opinion on October 29, 2024. 	There, the
court dismissed Petitioner's appeal as fri volous and granted Appellate Counsel's motion to
withdraw on October 29, 2024. (See Crim. Dkt. No. 122); United States v. Plata-Garza, No. 24-
40206, 2024 WL 4603268, at * I (5th Cir. Oct. 29, 2024).
Petitioner then filed the present § 2255 motion on April 11 , 2025. 	(Crim. Dkt. No. 124;
Civ. Dkt. No. 1).
II. 	SUMMARY OF THE PLEADINGS
A. 	Petitioner's § 2255 Petition
Pending before the Court is Petitioner's § 22 55 Motion (Civ. Dkt. No. 	1) , wherein
Petitioner sets out five constitutional claims of error: 12
(1) 	Appointed Counsel was ineffective because he failed to move for a variance
at the sentencing hearing to reflect substantial assistance on the part of Petitioner,
who "netted several arrests" by way of "5k 1.1 proffer sessions[.]"
(2) 	Retained Counsel was ineffective because he had Petitioner sign several
forfeiture agreements without explaining them and without translating them.
(3) 	Retained 	Counsel 	was 	ineffective 	because 	Counsel 	failed 	to 	inform
Petitioner of the mandatory minimum sentence often (10) years imprisonment and
further failed to explain that Petitioner would receive a two-level enhancement for
being a leader/organizer.
12 Petitioner 's pro se petition is entitled to a more liberal construction than those drafted by practicing
attorneys . See Haines v. Kerner, 404 U.S . 519,520 (1972); see also Hernandez v. Thaler, 630 F.3d 420,
426-27 (5th Cir. 2011) (" It is the substance of the relief sought by a pros e pleading, not the label that the
petitioner has attached to it , that determines the true nature and operative effect of a habeas filing." ).
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( 4) 	Retained Counsel and Appointed Counsel were ineffective because Counsel
failed to object to or discuss with the prosecution the weight of the drugs, despite
Petitioner's pleas to do so.
(5) 	Retained Counsel and Appointed Counsel were ineffective because Counsel
did not tell Petitioner he had time to challenge the PSR and Petitioner did not
receive the PSR until right before sentencing.
(Civ. Dkt. No. 1 at 2-3).
In support of his first argument, that Appointed Counsel was ineffective because Petitioner
provided substantial assistance to the Government and Counsel did not move for a variance,
Petitioner cites to United States v. Price, 95 F.3d 364 (5th Cir. 1996) and United States v. Allen,
918 F.3d 457 (5th Cir. 2019), for the proposition that § 5kl.1 agreements could be raised in a §
2255 petition, and that ineffective assistance of counsel may arise where an "attorney failed to
object to the government's breach of a plea agreement, which included obligations related to his
cooperation." (Civ. Dkt. No. 1 at 6) .
With regard to his second claim, that Retained Counsel was ineffective because he failed
to translate and explain several forfeiture agreements, Petitioner claims "this resulted in losing
[his] house which was not purchased with gains from [the] instant offense." (Id. at 6-7). Petitioner
further cites to United Stat es v. Brooks, 78 F.4th 138 (5th Cir. 2023), for the proposition that, on
collateral attack, a petitioner "may move to vacate a guilty plea if counsel's ineffective assistance
regarding forfeiture at the plea stage affected the trial court's guilt determination." (Id. at 7) .
Third, Petitioner claims he was not informed of the mandatory minimum sentence for the
charged offense, nor did Retained Counsel caution Petitioner that he would be receiving a two-
level enhancement as a leader/organizer. (Civ. Dkt. No. 1 at 7) . Further, Petitioner claims Retained
Counsel told him to just "nod my head" at the hearing. 	(Id.) . 	In support of this contention,
Petitioner cites to United States v. Herrera, 412 F.3d 577 (5th Cir. 2005), for the claim that a§
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2255 motion may be granted "due to ineffective assistance of counsel related to the failure to
clearly explain mandatory minimum penalties." (Id. at 7-8).
To support his fourth assertion, that Petitioner repeatedly objected to the weight of the
drugs, Petitioner claims "defense counsel has an obligation to object to the admission of highly
prejudicial evidence[,]" and that Petitioner was prejudiced because the actual weight of the drugs
was "much less[,]" citing to United States v. Rusmisel, 716 F.2d 301 (5th Cir. 1983) to show that
"failure to object to the admission of highly prejudicial evidence, including questions about the
defendant's personal drug use and attempts to prove guilt by association, rendered the trial
fundamentally unfair." (Id. at 8).
Finally, in support of his fifth ground for ineffective assistance of counsel, Petitioner claims
he "was not told [he] had time to challenge [the] PSR and was not given the PSR to go over until
right before sentencing[,]" and cites to United States v. Bartholomew, 974 F.2d 39 (5th Cir. 1992)
to show that failure to review the PSR with Petitioner could constitute ineffective assistance of
counsel. (Civ. Dkt. No. 1 at 8-9).
B. 	Respondent's Motion for Summary Judgment
In response to Petitioner's § 2255 Motion, Respondent filed The United States' Response
to Plata-Garza's 28 U.S.C. § 2255 Motion on July 3, 2025 . (Civ. Dkt. No. 4) . Wi~h regard to the
first claim, Respondent argues that Petitioner "has not shown that his counsel was ineffective for
failing to move for a U.S.S.G. § 5Kl.1 departure." (Id. at 13). 	Specifically, Respondent alleges
that a § 5Kl.1 motion is made by the government, so Petitioner's counsel could not have made
such a motion and, further, that both counsel and the government "recognized at sentencing that
there had been multiple proffer sessions[,]" but that they did not rise to the level where the
government would file a motion. 	(Id.). 	Further, Respondent states that regardless of the alleged
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performance by Counsel, Petitioner is unable to show prejudice because "[t]here is no indication
that the Court would have granted a§ 5Kl.1 motion." (Id. at 14) .
Second, Respondent claims Petitioner "has not shown that his counsel was ineffective for
allegedly having [Petitioner] sign several forfeiture agreements without explanation or translation.
(Civ. Dkt. No. 4 at 15). 	Specifically, Respondent asserts that Petitioner's statements made under
oath at the plea hearing contradict these allegations. 	(Id. ). 	Further, Respondent claims that
Petitioner is unable to show prejudice because, at the plea hearing, the court and the government
explained the details of the forfeiture agreement and Petitioner testified that he understood. (Id. at
16).
Third, Respondent suggests that Petitioner "has not shown that his counsel was ineffective
for allegedly failing to inform him of the ten-year statutory mandatory minimum sentence." (Civ.
Dkt. No. 4 at 17). 	Respondent argues this claim is contradicted by Petitioner's testimony at the
plea hearing, and the court further explained the mandatory minimum sentence as well. 	(Id.).
Further, while Petitioner claims Retained Counsel did not explain he would receive a two-level
enhancement prior to the plea hearing, Respondent explains that any enhancements would not be
decided until after the plea process and, similarly, Petitioner would not be able to withdraw his
plea on that basis, anyway. 	(Id. at 17-18). 	Thus, Respondent asserts, there is no evidence of
ineffective assistance and no showing of prejudice. (Id.) .
In response to Petitioner's fourth ground for ineffective assistance of counsel, Respondent
contends Petitioner "has not shown that his counsel was ineffective for not objecting to the weight
of the drugs." (Civ. Dkt. No. 4 at 18). 	Respondent claims Petitioner "himself had the chance to
clarify the amount with the Court, first at the re-arraignment and again at sentencing[,]" yet
Petitioner reaffirmed that the conspiracy involved at least five kilograms of cocaine. 	(Id.) .
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Respondent further contends that the amount of drugs was never disputed, so Petitioner 's want of
an objection would have been fruitless . (Id. at 18-19).
Finally, in response to Petitioner 's fifth claim of ineffective assistance of counsel,
Respondent argues that Petitioner's argument regarding the PSR objections and lack of time to
review are entirely contradicted by the record. 	(Civ. Dkt. No. 4 at 19). 	Respondent argues
Petitioner claimed he had time to review the PSR and further fails to allege what he would have
done differently had he had more time, no r does he show any resulting prejudice. (Id.).
As a result, Respondent asks this Court to grant summary judgment in their favor, to
dismiss Petitioner' s§ 2255 motion, and to deny Petitioner a certificate of appealability. (Id. at 19-
2 0) .
C. 	Petitioner's Reply
Petitioner filed a reply to Respondent's Response on August 12 , 2025. (Civ. Dkt. No. 5) .
First, Petitioner clarifies that he does not argue that Counsel should have filed a §5Kl .1
motion, but that "trial counsel failed to fulfill his professional duty to ensure that Petitioner's
extensive cooperation was both preserved in the record and brought to the Court's attention in a
meaningful way[.]" (Civ. Dkt. No. 5 at 4). Petitioner argues that counsel is ineffective when they
fail to notify the sentencing court of mitigating facts, and that arbitrarily withholding a § 5Kl .1
motion is impermissible, citing various cases in support. (Id. at 4). Petitioner claims that Counsel
could have "formally objected at sentencing and requested the Court to inquire whether the
Government's refusal was in good faith[,]" and could have also "filed a written motion alerting the
Court to Petitioner 's cooperation, requesting that the information be considered under 18 U.S.C. §
3553(a)." (Id. at 5) . Petitioner then states that "counsel still had a duty to argue that Petitioners
post-arrest cooperation was a relevant mitigating factor warranting a sentence below the guideline
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range[,]" thus forfeiting an opportunity to reduce the sentence by fifteen (15) or more months.
(Id.).
Second, with regard to the forfeiture agreements, Petitioner claims he was never informed
of the consequences of the forfeiture provisions. (S ee Civ. Dkt. No. 5 at 6). Specifically, Petitioner
alleges that Retained Counsel did not translate or explain the documents, directed Petitioner to
"just nod and say yes" at the plea hearing, failed to advise Petitioner of his wife's potential
ownership interest in the property, and failed to explain that the Government had the burden of
proving a nexus between the for fe ited assets and the charged offense. (Id.) . Petitioner claims this
resulted in prejudice because he "would not have entered the plea as written had he known the full
scope of the forfeitures[.]" (Id. at 7).
Third, with regard to the mandatory minimum sentence, Petitioner argues that his plea must
have been knowing, intelligent, and voluntary at the time it was entered, not after the fact. 	(See
Civ. Dkt. No. 5 at 8) . Specifically, Petitioner contends Retained Counsel never explained that the
offense carried a mandatory minimum sentence of ten years, that Petitioner was never advised that
a two-level enhancement under U.S.S.G. § 3Bl.l(c) would be imposed, nor that the combination
of such would raise his Guideline range above the statutory floor. 	(Id.). 	Here, Petitioner claims
prejudice because "he would not have entered the plea agreement without attempting to negotiate
better terms, challenge relevant conduct, or pursue suppression or trial." (Id. at 9).
Fourth, with regard to the drug quantity, Petitioner contends he repeatedly expressed
disagreement as to the quantity of drugs attributed to him (6.97 kilograms), that he communicated
those objections to counsel and expected the issue to be litigated at sentencing, and that Retained
Counsel and Appointed Counsel failed to preserve, raise, or pursue any objection to such. (Civ.
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Dkt. No. 5 at 11 ). 	This, Petitioner explains, cost him "at least 12-15 months of liberty and
potentially more." (Id. at 12).
Finally, Petitioner reemphasizes his inadequate review of the PSR before sentencing. (Civ.
Dkt. No. 5 at 13). 	Specifically, Petitioner claims he was not given a copy of the PSR until just
before the sentencing hearing, he was not provided sufficient time to understand its findings or
raise objections, counsel failed to " go over material portions of the report with him in a substantive,
strategic manner[,]" and Petitioner was unaware he could challenge assertions related to drug
quantity, role enhancement, and forfeiture. (Id. at 14) . Petitioner explains this resulted in prejudice
because his role enhancement could have be en challenged, the drug weight could have been
disputed, a stronger case could have been made for a downward variance or lower sentence, and
the "sentencing outcome would likely have been less than the 135-month high-end sentence
imposed." (Id. at 15).
Ultimately, Petitioner suggests an evidentiary hearing is required because he has placed
material facts in dispute. (Civ. Dkt. No. 5 at 15-16).
Ill . 	ANALYSIS
A. 	Jurisdiction
Generally, a § 22 55 motion must be filed within one year of the latest of four events;
applicable here is the date the judgment becomes final. 	See 28 U.S.C. § 2255(f)(l). 	Here,
Petitioner's conviction became final on January 27, 2025, ninety (90) days after the Fifth Circuit
dismissed Petitioner 's appeal because Petitioner did not seek Supreme Court review. See Clay v.
United States, 537 U.S. 522, 525 (2003) ("For the purpose of starting the clock on§ 2255 's one-
year limitation period, ... a judgment of conviction becomes final when the time expires for filing
a petition for certiorari contesting the appellate court's affirmation of the conviction."); see also
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United States v. Wheaten, 826 F.3d 843, 846 (5th Cir. 2016). As such, Petitioner had until January
27 , 2026, to file his § 2255 motion. 	Petitioner's motion is timely, as Petitioner signed and dated
his Motion on April 9, 2025, and the Motion was filed in this Court on April 11, 2025, well within
the one-year limitation.
Accordingly, this Court has jurisdiction to review pursuant to 28 U.S.C. §§ 1331, 2255.
B. 	Applicable Law
1. 	Summary Judgment Review
The Federal Rules of Civil Procedure apply if there is no conflict with the federal rules
governing habeas proceedings. See Burgess v. United States, 874 F.3d 1292, 1296 (11th Cir. 2017)
(citing Fed. R. Civ. P. 81(a)(4)(A) and R. Gov. § 2255 Proceedings 12). 	Unless there is a noted
conflict with the Rules Governing § 2255 Proceedings, these claims are reviewed under Fed. R.
Civ. P. 56(a).
Summary judgment is appropriate if the pleadings and evidence show that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). Once the moving party presents a "properly supported motion for summary
judgment, the burden shifts to the nonmoving party to show with 'significant probative evidence'
that there exists a genuine issue of material fact. " Hamilton v. Segue Software, Inc. , 232 F.3d 473 ,
477 (5th Cir. 2000) (internal citation omitted). When reviewing a motion for summary judgment,
a district court must generally construe disputed facts in the light most favorable to the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25 5 (1986).
2. 	28 U.S.C. § 2255
It is well settled that "[f]ollowing a conviction and exhaustion or waiver of the right to
direct appeal, [courts] presume a defendant stands fairly and finally convicted." 	United States v.
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Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231 -
32 (5th Cir. 1991)). Therefore, there are only four limited grounds upon which a federal prisoner
may move to vacate, set aside, or correct his sentence upon collateral review:
(1) constitutional issues;
(2) challenges to the District Court's jurisdiction to impose the sentence;
(3) challenges to the length of a sentence in excess of the statutory maximum; and
(4) claims that the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a); United States v. Piacente, 81 F.3d 555, 558 (5th Cir. 1996).
A petitioner, however, "may not raise an issue for the first time on collateral review without
showing both ' cause' for his procedural default, and 'actual prejudice' resulting from the error."
Shaid, 937 F.2d at 232 (citing United States v. Frady, 456 U. S. 152, 168 (1982)). "This cause and
actual prejudice standard presents 'a significantly higher hurdle ' than the 'plain error' standard
[applied] on direct appeal." Id. (citing Frady, 456 U.S. at 166). Thus, a petitioner must explain
why the constitutional or jurisdictional claim was not brought up on direct appeal (the cause for
the procedural default to not appealing the issue) and the harm caused by said claim (the prejudice
resulting from such claim). 	This "rigorous standard" is applied "to ensure that final judgments
command respect and that their binding effect does not last only until the 'next in a series of endless
postconviction collateral attacks. "' Id . (quoting Frady, 456 U.S. at 165-66). "A defendant must
meet this cause and actual prejudice test even when he alleges a fundamental constitutional error."
Id. (citing Murray v. Carrier, 477 U.S. 478, 493 (1986)). The Supreme Court allows an exception
to this high bar of cause and prejudice for "extraordinary case[ s]" where "a constitutional violation
has probably resulted in the conviction of one who is actually innocent[.]" Shaid, 937 F.2d at 232.
Further, "[o]ther types of error may not be raised under section 2255 unless the defendant
demonstrates that the error could not have been raised on direct appeal, and, if condoned, would
result in a complete miscarriage of justice." Cervantes, 132 F.3d at 1109 (citing United States v.
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Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)) (emphasis in original); see also Shaid, 937 F.2d at
232 n.7.
Lastly, the Supreme Court has held that an "ineffective-assistance-of-counsel claim may
be brought in a collateral proceeding under§ 2255 , whether or not the petitioner could have raised
the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). Failure to set
forth ineffective assistance of counsel claims on direct appeal is not a procedural default that must
be excused only upon the showing of cause and prejudice. "The procedural-default rule is neither
a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve
judicial resources and to respect the law's important interest in the finality of judgments" and
requiring a petitioner to bring an ineffective assistance of counsel claim on direct appeal "does not
promote [those] objectives." Id. at 504.
3. 	Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are analyzed under the two-prong test set forth
in Strickland v. Wa shington, 466 U.S. 668 (1984). 	To satisfy the Strickland test, Petitioner is
required to show that (1) his attorney 's performance was deficient, and (2) that the deficient
performance prejudiced his defense. Id. at 687. "Failure to prove either deficient performance or
actual prejudice is fatal to an ineffective assistance claim." Carter v. Johnson, 131 F.3d 452, 463
(5th Cir. 1997). Thus, " [a] court need not address both components of the inquiry if the [petitioner]
makes an insufficient showing on one." Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994).
The first prong requires a petitioner to show that the alleged errors of counsel were so
serious that the assistance received was "below the constitutional minimum guaranteed by the
Sixth Amendment." United States v. Faubion, l 9 F.3d 226, 228 (5th Cir. 1940) (citing Strickland,
466 U.S. at 686). 	The "constitutional minimum is measured against an objective standard of
reasonableness." 	Id. (citing Strickland, 466 U.S. at 688). 	An ineffective assistance of counsel
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claim focuses on "counsel's challenged conduct on the facts of the particular case, viewed as of
the time of counsel's conduct[,]" because "[i]t is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence[.]" Strickland, 466 U.S. at 689-90.
The second prong requires that a petitioner "demonstrate that her counsel's deficient
performance so prejudiced her defense that the proceeding was fundamentally unfair." Faubion,
19 F.3d at 228 (citing Strickland, 466 U.S. at 688). To show such prejudice, a petitioner must show
that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694. To establish such prejudice
in connection with a guilty plea, a defendant bears the burden of demonstrating "a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted
on going to trial." Hill v. Lockhart, 474 U.S. 52 , 59 (1985). To establish such prejudice within the
punishment phase of a non-capital case, a defendant must demonstrate that he was subjected to
increased jail time due to counsel's deficient representation. United States v. Grammas, 376 F.3d
433 , 438-39 (5th Cir. 2004) (citing Glover v. United States, 531 U.S. 198 , 203 (2001)).
C. 	Petitioner's Claims
1. 	Ground One
Petitioner claims he received ineffective assistance of counsel because Retained Counsel
arranged five (5) separate 5kl .1 proffer sessions and Appointed Counsel made no motion for
variance at sentencing to reflect this "substantial assistance." (Civ. Dkt. No. 1 at 6) .
Respondent counters that a U.S.S.G. § 5Kl .1 motion is made by the government, not by
defense counsel, so Counsel could not have made such a motion to begin with. 	(Civ. Dkt. No. 4
at 13). 	Moreover, Respondent contends that Counsel did, in fact, attempt to get a § 5Kl.1
departure. 	(Id.). 	Specifically, at sentencing, both Counsel and counsel for the Government
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acknowledged the multiple proffer sessions, but the Government explained that the debrief
sessions did not warrant a departure. 	(Id.). 	Respondent claims the court recognized the position
of both parties. (Id.). Simply put, Respondent argues counsel performed competently and arranged
for multiple proffer sessions to attempt to obtain a § 5Kl .1 departure, and there is no indication
the Court would have granted such a motion even if the government had moved for it. (Id. at 14).
Petitioner clarifies he does not argue that Counsel could have independently filed a§ 5Kl .1
motion, but that Counsel "failed to fulfill his professional duty to ensure that Petitioner's extensive
cooperation was both preserved in the record and brought to the Court's attention in a meaningful
way[.]" (Civ. Dkt. No. 5 at 4). 	Specifically, Petitioner contends Counsel failed to challenge the
Government's refusal to move for a downward departure in good faith, failed to preserve the issue
for review or build a record, and failed to argue for a downward variance based on Petitioner's
cooperation under§ 3553(a) of title 18. (Id. at 4-5). Thus, Petitioner claims the sentencing court
might have imposed a lesser sentence, resulting in prejudice. (Id. at 5).
This claim is meritless, refuted by the record, and conclusory.
Section 5Kl. I provides:
Upon motion of the government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person who has committed
an offense, a sentence that is below the otherwise applicable guideline range may
be appropriate.
U.S. SENTENCING GUIDELINES MANUAL§ 5Kl.1 (U.S. SENTENCING COMM'N 2023).
At the outset, this claim is vague and conclusory. Petitioner provides little guidance as to
the assistance provided, claiming only that his "assistance netted several arrests without any
adjustment." (Civ. Dkt. No. 1 at 2). Petitioner does not include any details of the assistance, nor
the extent of the alleged cooperation. This will not do. See Smallwood v. Johnson , 73 F.3d 1343,
1351 (5th Cir. 1996) ("[A] court cannot consider a habeas petitioner's bald assertions on a critical
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issue in his pro se petition ... mere conclusory allegations do not raise a constitutional issue in a
habeas proceeding.") (quoting Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983); Rosenblatt
v. United States, No. 3:21-cv-01561-M (BT), 2022 WL 17968848, at *8 (N.D. Tex . Nov. 28, 2022)
("Although pro se filings are liberally construed, this does not mean the Court must develop
arguments for [Petitioner] .") (citing United States v. Pineda, 988 F.2d 22 , 23 (5th Cir. 1993)); see
also Candanoza-Garcia v. United States, No. M-09-200, 2012 WL 13109822, at *8 -9 (S.D. Tex .
Aug. 8, 2012) (rejecting § 5Kl.1 argument where the movant merely asserted "she 'cooperated
with the government' and was 'truthful with her assistance. "' ).
Next, insofar as Petitioner claims Counsel should have done more with regard to the §
5Kl .1 motion, such an allegation is meritless because Counsel had no ability to do so. See United
States v. Morris, 455 F. App'x 464, 465 (5th Cir. 2011) ("The Government has the discretion, not
the duty, to file such a motion.") (unpublished) (citing Wade v. United States, 504 U.S. 181 , 185
(1992)). 	Moreover, "[w]ithout such a motion a court may not grant a downward departure for
substantial assistance." Id. (citing United States v. Krumnow, 476 F.3d 294, 297 (5th Cir.2007)).
Thus, "[d]efendants have no constitutional right to a 'substantial assistance' departure." 	United
States v. Aderholt, 87 F.3d 740, 743 (5th Cir. 1996) (citing United States v. Harrison, 918 F.2d 30,
33 (5th Cir. 1990)). As such, Counsel could not have made a§ 5Kl.1 motion himself. However,
insofar as Petitioner claims Counsel should have advocated for one, the record appears to show he
did just that. At the sentencing hearing, Counsel brought up the issue of§ 5Kl.l. (Crim. Dkt. No.
118 at 3 :5- 7). 	Counsel emphasized that Petitioner "had debriefed multiple times with the
Government." (Id. at 3 :1 1-12). 	In fact, Counsel prompted the Government to tell the court that
Petitioner debriefed multiple times and provided information. 	(Id. at 3:23 -24). 	However, the
Government explained that they had most of the information already, so the debrief sessions did
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not rise to the level justifying a motion. 	(Id. at 3:18-19, 3:25-4:1). 	And, in recognition of
Petitioner's attempted assistance, both Counsel and counsel fo r the Government advocated for a
sentence of 120 months. (Id. at 3: 19-23). That the Government did not ultimately file a motion,
and the court did not ultimately accept the 120-month recommendation, are not bases for
ineffective assistance of counsel.
Further, even if the Government's refusal to file the § 5Kl .1 motion were unexplained,
Petitioner does not allege that such refusal was based on unconstitutional motive; rather, Petitioner
simply claims that Counsel "could have formally objected at sentencing and requested the Court
to inquire whether the Government's refusal was in good faith[.]" (Civ. Dkt. No. 5 at 5) . This is
insufficient. 	See Wade , 504 U.S. at 181 ("[N]either a claim that defendant merely provided
substantial assistance nor additional but generalized allegations of improper motive will entitle a
defendant to a remedy[.]"); United States v. Urbani, 967 F.2d 106 , 110 (5th Cir. 1992) (rejecting
the defendant's "unadorned allegation of general arbitrariness" with regard to a refusal to move
for a departure under§ 5Kl .1 by the government).
Petitioner's claims are refuted by the record, meritless, and conclusory. As such, Petitioner
is unable to satisfy either prong under Strickland, and Ground One must fail.
2. 	Ground Two
Petitioner claims he received ineffective assistance of counsel because he signed several
forfeiture agreements that Retained Counsel did not explain or translate. 	(Civ. Dkt. No. 1 at 6) .
This resulted in Petitioner losing his house, which allegedly was not purchased with gains from
the instant offense. (Id. at 6- 7). Further, Petitioner suggests there was a significant language and
comprehension barrier which led to Petitioner lacking a true understanding of the forfeiture
agreement, despite Retained Counsel being bilingual. (Id. at 7).
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Respondent responds that this argument contradicts Petitioner's statements under oath at
the plea hearing. (Civ. Dkt. No. 4 at 15). Further, even if the claims were true, Respondent claims
Petitioner confirmed he could hear the interpreter at the plea hearing, and that the court, through
the interpreter, explained the forfeiture agreement and that Petitioner would be forfeiting his
interests in the assets and property listed in the agreement by pleading guilty. 	(Id. 	at 16).
Respondent further claims the prosecution then explained the agreement and referenced the
identified property, to which Petitioner stated he understood, and that he declined the opportunity
to have more time to speak with his attorney and/or plead not guilty. (Id. at 16-17).
Petitioner responds that the forfeiture of his residence and 2023 Land Rover was not the
result of a knowing, voluntary, and intelligent waiver. 	(Civ. Dkt. No. 5 at 6). 	Specifically,
Petitioner claims he was never informed of the consequences of his forfeiture agreement, Retained
Counsel did not translate or explain the documents, Retained Counsel directed him to just nod and
say "yes" during the hearing, Retained Counsel failed to advise him of his wife's potential
ownership interest, and Retained Counsel failed to explain that the government had the burden of
establishing the nexus between the assets and the offense. (Id.). Thus, Petitioner claims he would
not have entered into the plea as written, had he understood the full scope of the forfeitures. 	(Id.
at 7).
"Before deciding whether to plead guilty, a defendant is entitled to ' the effective assistance
of competent counsel. "' Padilla v. Kentucky, 559 U.S. 356, 364-65 (2010) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). During the plea stage, the Supreme Court emphasizes that
counsel has "the critical obligation ... to advise the client of 'the advantages and disadvantages of
a plea agreement."' Padilla, 559 U.S . at 370 (citing Libretti v. United States, 516 U.S. 29, 50-51
(1995)). Counsel is responsible for providing the accused an understanding of the law relative to
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the facts, and it need not be perfect, "but it must be reasonably competent." United States v. Cavitt,
550 F.3d 430, 440 (5th Cir. 2008) (quoting Herring v. Estelle, 491 F.2d 125 , 128 (5th Cir. 1974)).
The test for determining the validity of a guilty plea is "whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant."
Hill, 474 U.S. at 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25 , 31 (1970)). 	When a
defendant is represented by counsel "during the plea process and enters his plea upon the advice
of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the
range of competence demanded of attorneys in criminal cases. '" Id. (citing McMann, 397 U.S. at
771 ). 	Further, a defendant who pleads guilty upon advice of counsel "may only attack the
voluntary and intelligent character of the guilty plea by showing that the advice he received from
counsel was not within the standards set forth in McMann." 	Toll ett v. Henderson , 411 U.S. 258,
267 (1973). 	"When a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."
Id.
To establish prejudice in connection with a guilty plea, a defendant bears the burden of
demonstrating "a reasonable probability that, but for counsel 's errors, he would not have pleaded
guilty and would have insisted on going to trial." 	Hill, 474 U.S. at 59. For a guilty plea to be
"intelligently" and "knowingly" entered, the defendant must have a "full understanding of what
the plea connotes and of its consequence." 	United States v. Lincks, 82 F.4th 325, 331 (5th Cir.
2023) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). 	"The defendant need only
understand the direct consequences of the plea; he need not be made aware every consequence
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that, absent a plea of guilty, would not otherwise occur." 	United States v. Hernandez, 234 F.3d
252,255 (5th Cir. 2000) (citing Trujillo v. United States, 377 F.2d 266,266 (5th Cir. 1967)).
Here, Petitioner's statements, under oath, at the re-arraignment hearing, the signed plea
agreement, as well as the explanation on the court's own initiative, wholly contradict this claim.
At the re-arraignment hearing, the court communicated with Petitioner through an interpreter,
which Petitioner confirmed to hear "speaking clearly in Spanish through [the] headset[.]" (Crim.
Dkt. No. 110 at 3:25-4:2). Petitioner testified that he had enough time to discuss the case with
Retained Counsel, and that he was satisfied with his representation. (Id. at 11 :25-12:5). Petitioner
stated that he went through the agreement in detail with Retained Counsel, and that he understood
everything. 	(Id. at 26 :9-13; see Crim. Dkt. No. 62). 	The court then summarized the agreement,
including the forfeiture implications:
You are agreeing to waive any and all interest in any asset, which is [the] subject of
a related administrative or judicial forfeiture proceeding, whether criminal or civil,
to include the assets listed [in] the United States First and Second Supplement to
the Notice of Forfeiture. And you're agreeing to the forfeiture of those assets and
property.
(Crim. Dkt. No. 110 at 26 :16-23). Petitioner testified that is what he understood the agreement to
be with the Government. 	(Id. at 27 :6-8). 	The court further inquired into the specifics of the
agreement, and the Government explained that Petitioner agreed to forfeit the assets listed in
Supplemental Notice One and Two , which included a home and vehicle. (Id. at 27:15-21; see Dkt.
Nos. 36, 53). 	Petitioner again testified that he understood the details, and that is what he
understood the agreement to include. 	(Id. at 28:5-9). 	Petitioner confirmed he was not promised
anything outside of the Plea Agreement, that he was not forced, coerced, or threatened to plead
guilty, and that he was entering the plea freely and voluntarily. (Id. at 28:10-29:10). Finally, the
court offered Petitioner additional time to discuss the case with Retained Counsel before deciding
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whether to plead guilty, and Petitioner reiterated that he had discussed everything with Retained
Counsel and wished to proceed with the guilty plea. (Id. at 30:4-31 :4).
Likewise, the 	sentencing 	court confirmed 	that 	Petitioner understood 	the 	forfeiture
consequences to the Plea Agreement. 	At sentencing, Appointed Counsel claimed that they
discussed the forfeiture issue with Petitioner. 	(Crim. Dkt. No. 111 at 9:3-6). 	Said counsel
explained that Petitioner's wife had an interest in the property and that there was a stipulation to
that effect, but that Petitioner's interest would be forfeited. (Id. at 9:6-16; see Crim. Dkt. No. 92).
Petitioner continued with his allocution without mentioning the forfeiture. 	(Id. at 9:21-10:3).
Thus, it appears relatively clear that Petitioner was well aware of the consequences of the forfeiture
agreement, both before and after pleading guilty before the court.
And, "when a defendant's allegations contradict his sworn testimony given at a plea
hearing, we have required more than 'mere contradiction of his statements,' typically 'specific
factual allegations supported by the affidavit of a reliable third person. "' 	United States v. Reed,
719 F.3d 369, 373 (5th Cir. 2013) (citing United States v. Raetzsch, 781 F.2d 1149, 1151 (5th Cir.
1986; United States v. Fuller, 769 F.2d 1095 , 1099 (5th Cir. 1985)). 	Petitioner has not provided
such. 	Moreover, Petitioner verified his signature on the Plea Agreement with the court, and a
signed and unambiguous plea agreement is accorded great evidentiary weight. 	(Crim. Dkt. No.
110 at 26:2-8; see Crim. Dkt. No. 62); see Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5th Cir.
1986).
Even accepting Petitioner's assertions that both of his counsel failed to explain the
implications of the forfeiture agreement as true, a contention lacking support in the record,
Petitioner fails to demonstrate prejudice because the court explained said agreement in detail
before accepting Petitioner's plea of guilty. 	Similarly, insofar as Petitioner claims the residence
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subject to forfeiture was not linked to drug proceeds, this claim is contradicted by Petitioner's own
admissions in the PSR, 13 where Petitioner conceded "he had purchased his residence and the GMC
truck with drug proceeds." (Crim. Dkt. No. 95 at 7, 116).
Thus, Petitioner's claims under Ground Two are refuted by the record before the Court,
and Petitioner is unable to show either counsel's advice fell below "the range of competence
demanded of attorneys in criminal cases." McMann, 397 U.S. at 771. In any event, Petitioner fails
to show that he suffered prejudice as a result.
Accordingly, Ground Two must fail.
3. 	Ground Three
Petitioner asserts he received ineffective assistance of counsel because Retained Counsel
did not notify him of the mandatory minimum sentence often (10) years with regard to the charged
offense, and that Retained Counsel did not notify him that he would receive a two-point
enhancement for being a leader/organizer. 	(Civ. Dkt. No. 1 at 7) . Further, Petitioner claims he
was told to just "nod my head" and say "yes" during the plea colloquy. (Id.).
Respondent claims this assertion is contradicted by Petitioner's statements made under oath
at the plea hearing, where Petitioner testified that he had discussed the case with his attorney and
specifically confirmed that he had spoken with his attorney about the potential penalties he faced
if found guilty. (Civ. Dkt. No. 4 at 17). Further, Respondent claims the court then explained the
mandatory minimum sentence to Petitioner, putting him on notice and thereby neutralizing any
claim of prejudice. (Id.) . Then, Respondent claims that any enhancement for being a leader or
organizer in the alleged offense would not be decided until after the plea process, and that a plea
13 See United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) ("Generally, a PSR bears sufficient indicia
of reliability to perm it the sentencing court to rely on it at sentencing.") (citing United States v. Gracia, 983
F.2d 625, 629 (5th Cir. 1993)); see also United States v. Bourrage, 138 F.4th 327, 352-53 (5th Cir. 2025).
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agreement may not be withdrawn on that basis. (Id. at 17-18). Thus, Respondent argues this may
not serve as the basis for ineffective assistance of counsel. (Id. at 18).
Petitioner counters Respondent's argument by explaining that his plea must have been
knowing, intelligent, and voluntary at the time it was made, not after, and that Retained Counsel
never explained that the offense carried a mandatory ten-year sentence, Petitioner was not made
aware that a two-level enhancement under U.S.S.G. § 3Bl.l(c) would be imposed, and that the
combination of such would raise his advisory range above the statutory floor. (Civ. Dkt. No. 5 at
8) . Thus, Petitioner claims he would not have entered into the plea agreement without attempting
to negotiate better terms, challenge relevant conduct, or pursue suppression at trial. (Id. at 9) .
Here, Petitioner's claims are again refuted by the record before the Court. First, Petitioner's
own statements indicate he was aware of the mandatory minimum sentence attached to the charged
offense. At the re-arraignment hearing, through the assistance of a Spanish interpreter, Petitioner
testified that he had enough time to discuss the case with Retained Counsel, and that he was
satisfied with his representation. (Crim. Dkt. No. 110 at 11 :25-12:5). Petitioner testified that he
had discussed what he may be facing by way of punishment with Retained Counsel. (Id. at 18:23-
19:4). 	Further, the court inquired as to whether Petitioner had discussed how the Sentencing
Guidelines apply to his case with Retained Counsel, to which Petitioner answered in the
affirmative. (Id. at 21 :4-10).
"Solemn declarations in open court carry a strong presumption of verity." 	Blackledge v.
Allison, 431 U.S. 63 , 74 (1977). "For the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings." Id. at 73-74. Similarly,
Petitioner's signed, unambiguous plea agreement is accorded great evidentiary weight when
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deciding if the plea is entered knowingly. 	(See Crim. Dkt. No. 62); see Bonvillain, 780 F.2d at
1252. In this sense, Petitioner asks the Court to disregard his sworn statements in open court, but
offers no justification for doing so, and the Court fails to identify a reason in the record to breach
that "formidable barrier[.]" Blackledge, 431 U.S . at 73-74; Bonvillain, 780 F.2d at 1252. Thus,
Petitioner fails to show Retained Counsel's advice fell below "the range of competence demanded
of attorneys in criminal cases." McMann, 397 U.S. at 771 .
Second, even if that were not the case, Petitioner is unable to show he was prejudiced
because the court prophylactically ensured Petitioner understood the sentencing implications:
THE COURT: Now regarding the statutory penalties that apply to your case, Mr.
Torres, 14 if you plead guilty to Count Two, Mr. Plata, if you plead guilty to Count
One, you are each facing a minimum mandatory sentence of 10 years in prison and
a maximum of life in prison.
And I will tell you since each of you are facing that minimum mandatory
sentence of 10 years in prison, there are only two exceptions that apply or that could
apply that give the District Judge discretion to sentence you below that mandatory
minimum of 10 years. 	You would have to either qualify for the safety valve
provision, 15 or you would have to qualify by offering substantial assistance to the
Government, or by giving substantial assistance to the Government.
If you do not qualify for one of those exceptions, the District Judge has no
discretion to sentence you under the minimum mandatory sentence of 10 years. Of
course, you are facing up to life imprisonment.
14 At the re-arraignment hearin g, the Honorable Magistrate Judge Scott Hacker offered to take the plea of
both Petitioner and Arturo Torres at the same time, to which both co-defendants consented. (Crim. Dkt.
No. 110 at 7:7-17). As a result, the transcript of the hearing references multiple defendants at times and
utilizes the plural form; however, only Petitioner 's claims are before the Court and some responses from
co-defendant Arturo Torres are omitted in this Memorandum.
15 " [T]he so-called 'safety valve' provisions, enumerate various criteria which, if satisfied, permit a
sentencing court to impose a sentence below the statutory minimum for certain drug offenses." Rodriquez-
Saucedo v. United States, No. 5:05-CV- 15 , 2006 WL 2934262, at * 1 (S . D. Tex. Oct. 12 , 2006); see 18
U.S.C. § 3553(f). 	It appears Petitioner did not qualify for the safety valve reduction because he had a
criminal history score of over 4 (6), has a prior "3 -point" criminal conviction, and was deemed to be an
organizer, leader, manager, or supervisor in the offense. (Crim. Dkt. No. 11 1 at 5:9- 15; see Crim . Dkt. No.
95 at 10-11 , if31, 14, if48 , 16, if52); see 18 U.S.C. §§ 3553(f)(l), (4). 	Sim il arly, un der the "s ubstantial
assistance" exception, the court, upon motion by the Government, may impose a sentence below the
statutory minimum " so as to reflect a defendant's substantial assistance in the investigation or prosecution
of another person who has committed an offense." See 18 U.S .C . § 3553(e). As mentioned, the Government
determ ined Petitioner did not provide substantial assistance. (See supra, Section III(C)(l)).
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(Crim. Dkt. No. 110 at 18 :23 -19:24) (emphasis added). 	Petitioner testified that he understood.
(Id. at 20:2-3). The court further explained that Petitioner was subject to a fine of up to $10 million,
a $100 special assessment, and a minimum of five years of supervised release and maximum of
life of supervised release, to which Petitioner testified, again, that he understood. 	(Id. at 20:4-
21 :3). If this was not clear enough, the court set out a detailed, individualized explanation of the
sentencing mechanism, and the associated interplay with the Sentencing Guidelines:
THE COURT: Now within this statutory penalty ranges that apply to your case, that
is a minimum of 10 years and a maximum of life, the District Judge will look at the
Sentencing Guidelines at sentencing. 	The Sentencing Guidelines provide the
District Judge with a range of months that the Judge should consider when deciding
your actual sentence.
Basically, what will happen if you plead guilty and the District Judge finds
you guilty, your case will be set for sentencing. At your sentencing the District
Judge will consider all of the Guidelines that apply to your case, she will consider
everything else that is presented to her in your case, as well as the law that applies
to sentencing.
The District Jud ge will then decide what sentence you should receive. That
sentence could be within your Guideline range, it could be more than - it could be
within your Guidelines range, it could be less than your Guideline range, provided
that you are sentenced within the statutory penalty range that applies to your case.
Aga in , thats a minimum of 10 years and a maximum life. So , as to the Sentencing
Guidelines, all the District Judge has to do is consider them, she does not have to
follow them.
(Crim. Dkt. No. 110 at 21:11-22:10) (emphasis added). To say Petitioner was on notice of the ten-
year mandatory minimum sentence before entering his guilty plea would be an understatement.
Thus, there can be no prejudice because the court advised Petitioner clearly of the mandatory
minimum sentence before his guilty plea. 	See, e.g., United States v. Rico-So to , No. C-10-275,
2011 WL 3813159, at *4 (S .D. Tex . Aug. 25, 2011) ("Even if counsel incorrectly advised
[Petitioner], there can be no prejudice because the Court advised [Petitioner] of his sentencing
exposure on two separate occasions before his guilty plea." ); Castillo-Silva v. Uni ted States, No.
B-07-107, 2008 WL 3539761 , at *5 (S .D. Tex. Aug. 	13 , 2008) ("Nor could he have been
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prejudiced, because the Court told the Petitioner when he pleaded guilty that he faced a mandatory
5 years in jail."). Further, while Petitioner claims, but for counsel's alleged errors, "he would not
have entered the plea agreement without attempting to negotiate better terms, challenge relevant
conduct, or pursue suppression at trial[,]" he does not allege that doing so "would have given him
a reasonable chance of obtaining a more favorable result." King v. Davis, 898 F.3d 600, 604-05
(5th Cir. 2018). "That omission is fatal to [Petitioner 's] claim." Id.
Similarly, Petitioner's claim that Retained Counsel did not advise that Petitioner would
receive a two-level enhancement for being a leader or organizer is meritless. (See Civ. Dkt. No. 1
at 7; Civ. Dkt. No. 5 at 8-10). Sentencing enhancements, like the adjustment attached to Petitioner
under U.S.S.G. § 3B 1. l(c) 16 for being a "coordinator/manager in the transportation and storage of
cocaine along with drug proceeds[,]" are applied by the sentencing judge at the sentencing hearing,
after the plea of guilty is entered. 17 (See Crim. Dkt. No. 95 at 10-11, 1131, 32). Any argument
that Retained Counsel should have known and informed Petitioner of what the sentencing judge
would ultimately do before Petitioner entered his guilty plea is without merit. 	Regardless,
Petitioner would have been unable to withdraw his guilty plea for this reason, standing alone. 18
16 Under the Sentencing Guidelines, "[i]f the defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than described in (a) or (b), increase by 2 levels." U.S. SENT ENCING GUID ELIN ES
MAN UAL§ 3Bl.l(c) (U . S. S ENTENCING COMM'N 2023).
17 The Order for the PSR , which includes sentencing calculations and enhancement recommendations, to
be completed was not entered until October 23, 2023, the date of the re-arraignment hearing, to be
completed by November 27, 2023, with the final PSR to be submitted by December 26, 2023. (See Crim.
Dkt . No. 63). 	The PSR was sent to Petitioner on November 27, 2023, and objections were filed on
December I 5, 2023. (See Crim. Dkt. No . 71; Crim. Dkt. No. 73). The final, revised PSR was filed March
20, 2024. (See Crim. Dkt. No. 96).
18 " A gui lty plea, however, is not a 'road-show tryout ," and [the Court] 'w ill not ' degrade the otherwise
serious act of pleading guilty into something akin to a move in a game of chess[.]"" 	United States v.
Underwood, 174 F.3d 850, 854 (7th Cir. 1999) (internal citations omitted). "The fact that a defendant has
a change of heart prompted by his reevaluation of either the Government's case against him or the penalty
that might be imposed is not a sufficient reason to permit withdrawal of a plea." United States v. Grimes,
225 F.3d 254, 259 (2d Cir. 2000) (quoting United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992)).
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See, e. g. , United States v. Knapper, No. CRIM.A. 99-252, 2001 WL 25651 , at *1-2 (E. D. La. Jan.
8, 2001) (denying a motion to withdraw guilty plea because the defendant "did not know that
sentencing enhancements would be applied for his alleged role in the offense[.]").
Accordingly, Ground Three fails.
4. 	Ground Four
Petitioner argues he received ineffective assistance of counsel because he continuously
objected to the weight of the drugs, but Retained Counsel and Appointed Counsel failed to object
during the district court proceedings or discuss such with the Prosecution. (Civ. Dkt. No. 1 at 8).
Thus, Petitioner claims he was prejudiced because the actual weight of the drugs was "much
less[.]" (Id.) .
Respondent claims Petitioner himself had the opportunity to clarify the amount of drugs
with the court and instead confirmed that the conspiracy charge against him involved at least five
kilograms of cocaine. (Civ. Dkt. 	o. 4 at 18). Further, at sentencing, Petitioner confirmed he had
reviewed the PSR, which included the weight of the drugs, with Appointed Counsel, and the court
again referenced the amount of drugs and Petitioner said nothing. (Id.) .
Petitioner responds that he repeatedly expressed disagreement as to the quantity of drugs
attributed to him, and that he communicated these objections and expected the issue to be litigated
at sentencing, but Counsel failed to preserve, raise, or pursue any objection. 	(Civ. Dkt. No. 5 at
11 ). 	Petitioner further emphasizes that the PSR is based on "indirect surveillance, untested
informant statements, and drug packaging admissions made after arrest." (Id. at 12). Ultimately,
Petitioner asserts he was not responsible for all the drugs attributed, Counsel failed to litigate the
As such, "the fact that a defendant's guideline range is higher than expected is not such a just and fa ir reason
to [withdraw a plea]." Knapper, 2001 WL 25651 , at* I (quot in g United States v. Gibson, 135 F.3d 1124,
1127 (6th Cir. 2998) (a lt eration in original).
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issue under§ 1Bl.3(a)(l)(B), and the sentencing court was "presented with a one-sided narrative,
untested by defense advocacy." (Id. at 13).
This claim is refuted by the record. Petitioner confirmed the quantity of drugs on multiple
occasions and declined the opportunity to dispute it on other occasions. 	At the re-arraignment
hearing, the court first detailed the charge against Petitioner:
THE COURT: On or about November 18 , 2022, in the Southern District of Texas,
and jurisdiction of the Court, that you did knowingly and intentionally conspire and
agree together with other persons, known and unknown to the Grand Jurors, to
possess with the intent to distribute a controlled substance. 	It's saying the
controlled substance involved in the conspiracy was five kilograms or more of a
mixture or substance containing a detectable amount of cocaine, a Schedule II
controlled substance. 	In violation of 21 	U.S.C. 846, 841 , subsection (a)(l),
subsection (b )(1 )(A).
(Crim. Dkt. No. 110 at 13:21-14:7). The court then further detailed what the Government would
have to prove to convict Petitioner, specifically "that the quantity of the substance was at least five
kilograms." 	(Id. at 14:15-16). Petitioner testified that he understood the charge and that he had
no questions regarding such. (Id. at 15 :7-12).
Next, the court required the Government to present the factual stipulation to the court. The
Government explained that Petitioner "did knowingly and intentionally conspire and agree with
others to possess with intent to distribute more than five kilograms of cocaine[.]" (Id. at 31 :25-
32:3). 	The Go vernment claimed that "Petitioner possessed and packaged seven kilograms of
cocaine at his home[,]" before Arturo Torres was to transport the cocaine. 	(Id. at 32:8-12).
Ultimately, Arturo Torres "retrieved the seven kilograms of cocaine from" Petitioner's residence.
(Id. at 32:13-15). The court then probed Petitioner as to whether this framing was true, and he did
not disagree with any of the facts . (Id. at 33:5-7). The court did not stop there. The court further
examined the details of the allegation, confirming that Petitioner "handed over to [Arturo Torres]
this seven kilograms of cocaine." (Id. at 34:4-7). 	Petitioner testified this was true. (Id. at 34:7-
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8). To make matters clearer, the court asked Petitioner whether he "actually packaged that cocaine
at [his] house." (Id. at 34:9-10). Petitioner, again, testified that he had. (Id. at 34:10- 11) . Finally,
to take the facts beyond dispute, the court verified that Arturo Torres "came over to get that cocaine
from [Petitioner] , that seven kilograms of cocaine, so that the cocaine could be transported to
another person." (Id. at 34: 15-18). Petitioner attested that was true. (Id. at 34:18-19).
Then, on December 15 , 2023 , Petitioner filed his objection to the PSR, which included his
acceptance of responsibility statement. 	(See Crim. Dkt. No. 73; Crim. Dkt. No. 73-1). Therein,
Petitioner once again admitted to the quantity of drugs being at least five kilograms, admitted that
he was in possession of seven bundles of cocaine, that he knew what he was doing was illegal, and
that he did it voluntarily and of his own free will. (Crim. Dkt. No. 73-1 at 1).
Similarly, at the sentencing hearing, Petitioner and Appointed Counsel both testified that
they had reviewed the PSR19 together, which was peppered with references to the seven-kilogram
allegation. (Crim. Dkt. No. 110 at 4:6-18; see Crim. Dkt. No. 95 at 7, 113, 8-9, 121, 9, 122, 10 ,
128). 	Petitioner did not dispute the PSR, nor the quantity of drugs alleged at the sentencing
hearing. 	In fact, Petitioner spots an error in the weight of the cocaine alleged for the first time,
here, on collateral review, yet fails to explicate the true weight of the drugs attributable to him,
simply alleging it must have been "much less." (Civ. Dkt. No. 1 at 8) . Thus, Petitioner's claims
are refuted by the record, and any allegation that Appointed Counsel should have objected to such
would have been fruitless, so Petitioner fails to show Appointed Counsel's advice fell below "the
range of competence demanded of attorneys in criminal cases." McMann , 397 U.S. at 771; see
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) ("An attorney's failure to raise a
19 Petitioner claims the PSR is based on " indirect surveillance, untested informant statements, and drug
packaging admissions made after arrest." (Civ. 0kt. No. 5 at 12). However, district courts have found that
the PSR is generally reliable, and courts regularly rely on it at sentencing. (See supra, note 11 ); see also
Ayala, 47 F.3d at 690; Bourrage, 138 F.4th at 352-53.
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meritless argument thus cannot form the basis of a successful ineffective assistance of counsel
claim[.]") (citing Williams v. Collins, 16 F.3d 626, 634-35 (5th Cir. 1994); United States v. Victoria ,
876 F.2d 1009, 1012 (1st Cir. 1989)).
Accordingly, Ground Four fails.
5. 	Ground Five
Finally, Petitioner argues he received ineffective assistance of counsel because he was not
told he had time to challenge the PSR and was not given the PSR to go over until right before
sentencing. (Civ. Dkt. No. 1 at 8).
Respondent claims this argument is contradicted by the record . (Civ. Dkt. No. 4 at 19).
Respondent suggests Petitioner testified, under oath, that he had received and reviewed the PSR
with Appointed Counsel when asked by the court. (Id.). 	Said counsel additionally stated that he
had reviewed it with Petitioner. 	(Id.) . 	Further, Respondent claims that even if they had not
reviewed it until right before sentencing, Petitioner does not allege any prejudice, such as what he
would have done differently with more time. (Id.).
Petitioner responds that he has now stated, under penalty of perjury, he was not given a
copy of the PSR until shortly before sentencing, he was not provided sufficient time to understand
its findings or raise objections, Appointed Counsel failed to go over material portions of the report
in a substantive, strategic manner, and that Petitioner was unaware that he could challenge
assertions related to drug quantity, role enhancement, and forfeiture. (Civ. Dkt. No. 5 at 14). Thus,
Petitioner claims the "sentencing outcome would likely have been less than the 135-month high-
end sentence imposed." (Id. at 15).
This claim is refuted by the record and conclusory. At the sentencing hearing, the court
asked Appointed Counsel whether he had received and reviewed the PSR, to which he testified
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that he had. (Crim. Dkt. No. 111 at 4:6-9). Appointed Counsel stated that he had reviewed it with
Petitioner, and that Petitioner's previous attorney reviewed it with him as well. 	(Id. at 4:9-11).
Petitioner did not dispute this. The court then asked whether Petitioner had reviewed the PSR with
Appointed Counsel, to which he responded that he had. (Id. at 4:15-18). In fact, at no point, until
this Petition, has Petitioner claimed that he had not reviewed the PSR or that he had insufficient
time to review and challenge the PSR. 	Petitioner may not now ask this Court to discard his
declarations in open court, without more, simply by contradicting them. Blackledge, 431 U.S. at
73 - 74; Bonvillain, 780 F.2d at 1252; see Reed, 719 F.3d at 373 (citing Raetzsch, 781 F.2d at 1151;
Fuller, 769 F.2d at 1099). Thus, Petitioner fails to show Appointed Counsel's advice fell below
"the range of competence demanded of attorneys in criminal cases." McMann , 397 U.S . at 771.
Moreover, Petitioner fails to establish prejudice because he does not identify what
objections Appointed Counsel should have made, or what errors Petitioner would have identified
with more time to review the PSR, much less a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." 	Strickland, 466
U.S. at 694; see Smallwood, 73 F.3d at 1351 (quoting Ross, 694 F.2d at 1011-12).
Accordingly, Ground Five fails.
D. 	Hearing
"A motion brought under 28 U.S.C. § 2255 can be denied without a hearing only if the
motion, files, and records of the case conclusively show that the prisoner is entitled to no relief."
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992); see also R. Gov. Sec. 2255
Proceedings 4(b ). A court does not abuse its discretion when denying a habeas petition without
hearing 	when 	Petitioner's 	assertions 	are 	merely 	conclusory 	allegations 	or 	are 	otherwise
"inconsistent with the bulk of [his] conduct." See United States v. McDaniels, 907 F.3d 366, 370
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(5th Cir. 2018) (affirming the district court's judgment to dismiss§ 2255 motion without a hearing
because 	an 	evidentiary 	hearing 	was 	not 	warranted 	when 	the 	movant's 	arguments 	were
"unavailing") (alteration in original) (quoting Cervantes, 132 F.3d at 111 O); see also Bartholomew,
974 F.2d at 41 (holding there was no abuse of discretion in denying a habeas motion without
hearing where the movant's assertions of ineffective assistance were wholly conclusory in nature
and refuted by reference to the record itself).
Based on the pleadings and record as outlined, Respondent has established that the claims
of ineffective assistance of counsel within the habeas petition do not raise any genuine issue of
material fact and summary judgment is warranted. 	Fed. R. Civ. P. 56(a). 	Because the record is
adequate to dispose fully and fairly of Petitioner's claims, no evidentiary hearing is necessary.
Each claim is either refuted by the record, meritless, or conclusory. 	In other words, summary
dismissal in favor of Respondent is appropriate without a hearing as the record establishes that
there is no genuine issue as to any material facts as claimed by Petitioner.
IV. 	CONCLUSION
Recommended Disposition
After careful review of the record and relevant law, the undersigned recommends that
Respondent's Motion (Civ. Dkt. No. 4) be GRANTED and Petitioner's habeas petition under §
2255 (Civ. Dkt. No. 1) be DENIED. 	It is further recommended that Petitioner's § 2255 petition
(Civ. Dkt. No. 1) be DISMISSED with prejudice, and the case be closed.
Certificate ofAppealability
It is further recommended that the District Court deny a certificate of appealability. 	An
appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding
"unless a circuit justice or judge issues a certificate ofappealability." 28 U.S.C. § 2253(c)(l)(A).
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The Rules Governing Section 2255 Proceedings instruct that the District Court "must issue or deny
a certificate of appealability when it enters a final order adverse to the applicant." 	R. Gov. Sec.
2255 Proceedings 11 . Because the undersigned recommends the dismissal of Petitioner's § 2255
action, the Court must address whether Petitioner is entitled to a certificate of appealability (COA).
Petitioner is entitled to a COA "only if the applicant has made a substantial showing of the
denial of a constitutional right. " 28 U.S.C. § 2253(c)(2). "The COAdetermination under§ 2253(c)
requires an overview of the claims in the habeas petition and a general assessment of their merits."
Miller-El v. Cockrell, 537 U. S. 322, 336 (2003). For claims denied on their merits, "[t]he petitioner
must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Slackv. McDaniel, 529 U.S. 473,484 (2000); see also
United States v. Jones, 287 F.3d 325 , 329 (5th Cir. 2002) (applying the Slack standard to a COA
determination in the context of a§ 2255 proceeding). Petitioner may also satisfy this standard by
showing that "jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further. " Miller-El, 537 U.S. at 327; see also Jones, 287 F.3d at 329. For claims that a
district court rejects solely on procedural grounds, the petitioner must show both that "jurists of
reason would find it debatable whether the petition states a valid claim of denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling." Slack, 529 U.S. at 484.
Based on the record and for reasons explained, Petitioner would not be able to demonstrate
that reasonable jurists would find the "district court's assessment of the constitutional claims
debatable or wrong[,]" nor would he be able to show that the issues "deserve encouragement to
proceed further." Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 327.
Accordingly, Petitioner is not entitled to a COA.
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Notice to the Parties
The Clerk shall send copies of this Memorandum and Recommendation to Petitioner, who
has fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §
636(b)(l)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file timely written
objections shall bar an aggrieved party from receiving a de novo review by the District Court on
an issue covered in this Memorandum and, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District
Court.
The Clerk shall provide copies of this Memorandum to Petitioner and counsel for
Respondent.
DONE at McAllen, Texas, on 28th day of January 2026.
~United States Magistrate Judge
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