United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
NcBryed States District Judge
for consideration the motion of Noel Espinoza-Santos
("Espinoza") to vacate, set aside, or correct
judgment under 28 U.S.C. § 2255. Having reviewed the
motion, the government's response, Espinoza's reply,
and applicable legal authorities, the court concludes that
the motion should be denied.
5, 2015, Espinoza pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. §§ 1326(a) and
(b) (1)/(2), CR Doc. 32. He was sentenced to a term of
imprisonment of 13 0 months. Id. The United States
Court of Appeals for the Fifth Circuit affirmed
Espinoza's judgment on appeal, CR Doc. 42, and the
Supreme Court denied certiorari, CR Doc. 48.
government does not dispute that Espinoza has timely filed
his motion under 28 U.S.C. § 2255. The pertinent facts
are adequately summarized by the government's response
and will not be repeated here.
Grounds of the Motion
asserted two grounds in support of his motion. First,
Espinoza alleged that counsel was ineffective for failing to
move to strike Espinoza's Truth Affidavit on the ground
it was filed by a represented party. Doc. 1 at 5. Second,
Espinoza claimed that counsel was ineffective for failing to
advise him against pursuing correction of his date of illegal
reentry without (or until he obtained) sufficient buttressing
evidence to mitigate the risk of an obstruction enhancement.
Id. at 6.
Pertinent Legal Principles
Legal Standard for 28 U.S.C. § 2255
conviction and exhaustion of any right to appeal, courts are
entitled to presume that a defendant stands fairly and
finally convicted. United States v. Frady, 456 U.S.
152, 164-65 (1982); United States v. Shaid, 937 F.2d
228, 231-32 (5th Cir. 1991) .
2255 does not offer recourse to all who suffer trial errors.
It is reserved for transgressions of constitutional rights
and other narrow injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice. United States v. Capua, 656
F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981) . In
other words, a writ of habeas corpus will not be allowed to
do service for an appeal. Davis v. United States,
417 U.S. 333, 345 (1974). Further, if issues "are raised
and considered on direct appeal, a defendant is thereafter
precluded from urging the same issues in a later collateral
attack." Moore v. United States, 598 F.2d 439,
441 (5th Cir. 1979) (citing Buckelew v. United
States, 575 F.2d 515, 517-18 (5th Cir. 1978)).
Legal Standard for Ineffective Assista ...