USA v. Coker

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KYLE ANDREW COKER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. H-25-0101
Criminal Action No. H-22-151-1
ORDER
Pending before the Court is Petitioner Kyle Andrew Coker’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Civil Document No. 1, Criminal Document No. 66) and the United States’
Memorandum in Opposition to Gonzlez’s 28 U.S.C. § 2255 Motion and Motion to
Dismiss Coker’s 28 U.S.C. § 2255 Motion (Criminal Document No. 70). Having
considered the motions, submissions, and applicable law, the Court determines that
Coker’s motion should be denied, and the Government’s motion should be granted.
I. BACKGROUND
On January 12, 2023, Petitioner Kyle Andrew Coker (“Coker”) plead guilty
to one felony count of possession of a firearm by a prohibited person in violation of
18 U.S.C. § § 922(g)(1) and 924(a)(2). On June 2, 2023, This Court sentenced Coker
United States District Court
Southern District of Texas
ENTERED
December 22, 2025
Nathan Ochsner, Clerk
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to a term of 120 months incarceration, three years of supervised release, and a
$100.00 special assessment.
On January 6, 2025, Coker filed the pending § 2255 motion contending that
his pretrial and sentencing legal counsel, Mr. Gerardo S. Montalvo and Mr. John
MacVane, failed to conduct necessary pretrial investigations or effectively negotiate
a favorable plea, rendering ineffective assistance of counsel.1 On January 10, 2025,
the Court ordered the Government to file a response addressing the merits of Coker’s
motion.2 On February 25, 2025, the Government filed its response to Coker’s § 2255
motion, requesting this Court dismiss the motion as untimely with no further
proceedings.3
II. STANDARD OF REVIEW
“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete miscarriage of justice.” United
States v. Mimms, 43 F.3d 217, 219 (5th Cir. 1995) (quoting United States v. Vaughn,
1 See Petitioner Kyle Andrew Coker’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody, Civil Document No. 1,
Criminal Document No. 66.
2 Court Order Requiring Government’s Response, Criminal Document No. 67 at 1.
3 United States’ Response to Kyle Coker’s 28 U.S.C. § 2255 Motion, Criminal
Document No. 70 at 1–27.
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955 F.2d 367, 368 (5th Cir. 1992)). Even if a defendant alleges a constitutional error,
he 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. United
States v. Frady, 456 U.S. 152, 167 (1982); see also United States v. Acklen, 47 F.3d
739, 742 (5th Cir. 1995). A petitioner must show “cause” to explain the reason why
the objection was not made at trial or on direct appeal and show “actual prejudice”
was suffered from the alleged errors. Frady, 456 U.S. at 167. To prove “cause,” a
petitioner must show an external obstacle prevented him from raising his claims
either at trial or on direct appeal. McCleskey v. Zant, 499 U.S. 467, 497 (1991). To
prove “actual prejudice,” the petitioner must show he has suffered an actual and
substantial disadvantage. Frady, 456 U.S. at 170.
To succeed under the “cause” and “actual prejudice” standard, a petitioner
must meet a “significantly higher hurdle” than the plain error standard required on
direct appeal. Id. at 166. This higher standard is appropriate because once the
petitioner’s chance to direct appeal has been exhausted, courts are allowed to
presume the petitioner was fairly convicted. Id. at 164; see also United States v.
Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (presuming defendant to be fairly
and finally convicted after direct appeal). Ineffective assistance of counsel, if shown
and applicable, will satisfy the requisite cause and prejudice. Acklen, 47 F.3d at 742.
Additionally, a claim for ineffective assistance of counsel is properly brought for the
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first time in a § 2255 motion, United States v. Shaid, 937 F.2d 228, 232 (5th Cir.
1991) (en banc).
III. LAW & ANALYSIS
Coker moves, pro se, to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 on two grounds, contending that his pretrial and sentencing counsel
rendered ineffective assistance of counsel. Specifically, Coker contends that his
pretrial 	counsel, 	Mr. 	Gerardo 	S. 	Montalvo, 	failed 	to: 	(1) 	communicate 	the
consequences of pleading guilty; (2) conduct an adequate and independent pretrial
investigation; or (3) negotiate a favorable plea agreement (“Claim One”). Coker
further contends that his sentencing counsel, Mr. John MacVane, failed to: (1)
correctly explain the Presentencing Recommendation (“PSR”); (2) file substantive
objections to the PSR; (3) argue for mitigation of punishment; or (4) object to
Coker’s sentence. In response, the Government contends Coker’s pending motion is
untimely and fails to show ineffective assistance of counsel on any ground.
The Court analyzes an allegation of ineffective assistance of counsel in a
§ 2255 motion under the two-prong test established in Strickland v. Washington, 466
U.S. 668 (1984). See United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001). The
movant must show his counsel’s performance was both deficient and prejudicial to
prevail on an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700;
Willis, 273 F.3d at 598. To show deficiency, the movant must show his counsel’s
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assistance was outside a broad range of what is considered reasonable. Strickland,
466 U.S. at 669. 	To establish prejudice, the petitioner “must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 694). Thus, when a petitioner
challenges his conviction, this issue is whether “a reasonable probability exists that
the jury would have had a reasonable doubt as to guilt.” Hernandez v. Johnson, 213
F.3d 243, 249 (5th Cir. 2000). “This is a heavy burden which requires a ‘substantial,’
and not just a ‘conceivable,’ likelihood of a different result. United States v. Wines,
691 F.3d 599, 604 (5th Cir. 2012). “Counsel’s errors must be ‘so serious as to deprive
the [petitioner] of a fair trial, a trial whose result is reliable.’” Harrington, 562 U.S.
at 104 (quoting Strickland, 466 U.S. at 687). The movant must prove both prongs of
the analysis: counsel tendered deficient performance, and the movant suffered
prejudice. Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997).
As a preliminary matter, the Government contends that Coker’s motion is
subject to dismissal for being untimely. In response, Coker contends his motion is
timely because “the one-year statute of limitations under § 2255(f)(1) does not begin
to run until the expiration of the ninety-day window for filing a petition for certiorari
with the Supreme Court.
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The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-
year statute of limitations in which a federal prisoner may file a § 2255 motion. See
28 U.S.C. § 2255(f). Ordinarily, when a defendant unsuccessfully appeals his
conviction and sentence, his conviction becomes final 90 days later—when the time
to file a petition for writ of certiorari in the United States Supreme Court expires.
See United States v. Plascencia, 537 F.3d 385, 389 (5th Cir. 2008). By default, the
limitations period runs from the “date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). The “movant in a § 2255 proceeding has the burden
of demonstrating that his filings are timely.” United States v. Duran, 934 F.3d 407,
413 (5th Cir. 2019). The Supreme Court has made clear that “[f]inality has a long-
recognized, clear meaning in the postconviction relief context: Finality attaches in
that setting when this Court affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time for filing a certiorari
petition expires.” Clay v. United States, 537 U.S. 522 (2003).
Here, the central inquiry before the Court is whether Coker’s petition is
timely. To determine timeliness, the Court must determine on what date the one-year
statute of limitations began to run. A review of the record in this case reveals that
Coker was sentenced by the Court on June 2, 2023. On June 5, 2023, despite waiving
his right to appeal in his plea agreement, Coker appealed the Court’s final judgment
to the Fifth Circuit. On October 19, 2023, the Fifth Circuit dismissed Coker’s appeal
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pursuant Federal Rule of Appellate Procedure 42(B), based on Coker’s motion for
voluntary dismissal of his appeal. On January 6, 2025, Coker filed the pending §
2255 motion, almost fifteen months after his appeal was dismissed by the Fifth
Circuit.
Based on the foregoing, the Government contends that the one-year statute of
limitations began to run on the date the Fifth Circuit dismissed Coker’s appeal,
meaning Coker’s § 2255 motion was due no later than October 19, 2024. In response,
Coker contends that his § 2255 motion should not have been due until January 17,
2025, because the one-year statute of limitations did not begin to run until the
expiration of the ninety-day window to file a petition for writ of certiorari. Based on
the Fifth Circuit’s clear guidance that “when a federal criminal direct appeal is
voluntarily dismissed, further review is no longer possible, and thus, the federal
conviction immediately becomes final under AEDPA for purposes of any future
petition under 28 U.S.C. § 2255,”4 the Court finds that Coker’s statute of limitations
to bring a § 2255 motion began to run on October 13, 2023, the date that the Fifth
Circuit 	dismissed 	Coker’s 	appeal 	pursuant 	to 	Coker’s 	motion 	for 	voluntary
dismissal. Accordingly, the Court finds that Coker’s § 2255 motion must have been
4 United States v. Solis-Gonzalez, 254 F.3d 1080, 1080 n.1 (5th Cir. 2001) (“Even
if we were to consider the timeliness of appellant’s petition, he would have difficulty
persuading us that, although he voluntarily dismissed his appeal, the one-year period
should be extended by the time limit for filing a petition for certiorari.”).
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filed by October 19, 2024, to be deemed timely. Based on the foregoing, the Court
finds that Coker’s § 2255 motion is untimely and should be dismissed accordingly.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Petitioner Kyle Andrew Coker’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Civil
Document No. 1, Criminal Document No. 66) is DENIED. The Court further
ORDERS that the Government’s Motion to Dismiss Coker’s 28 U.S.C. §
2255 Motion (Criminal Document No. 70) is GRANTED.
THIS IS A FINAL JUDGMENT.5
SIGNED at Houston, Texas, on this 22nd day of December, 2025.
5 A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the pleadings and the applicable law, the Court concludes
reasonable jurists would not find its assessment of the claims debatable or wrong. See Slack
v. McDaniel, 529 U.S. 473, 483–84 (“To obtain a COA under § 2253(c), a habeas prisoner
must make a substantial showing of the denial of a constitutional right, a demonstration
that . . . includes showing that reasonable jurists could debate whether . . . the petitioner
should have been resolved in a different manner . . . .”). Because Coker does not allege
facts showing his claim could be resolved in a different manner, a certificate of
appealability will not be issued.
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