United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATES DISTRICT JUDGE
the Court is Sergio Moreno Vidales's (Movant) motion to
vacate, set-aside, or correct sentence pursuant 28 U.S.C.
§ 2255. For the following reasons, the Court denies the
and others were charged by a second superseding indictment
with conspiracy to possess with intent to distribute and
distribution of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii) and 846 (count one),
possession with intent to distribute methamphetamine in
violation of 21 U.S.C. § 841(b)(1)(A)(viii) (count
three), possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A) (count four), and possession of a firearm by an
alien illegally in the United States in violation of 18
U.S.C. §§ 922(g)(5)(A) and 924(a)(2). (Doc. 451.).
Unless otherwise indicated, all document numbers refer to the
docket number assigned in the underlying criminal action,
3:11-CR-154-K(17). Movant pled not guilty, and a jury
convicted him of all counts. The Court sentenced him to 276
months in prison for counts one and three to run concurrently
with a 120-month sentence for count four, and to 60 months
for count five to run consecutively to the sentences for
counts one, three, and four. (Doc. 502 at 2.) The judgment
was affirmed on appeal. (Doc. 519); United States v.
Vidales, No. 13-10894 (5th Cir. July 21, 2014).
raises the following grounds:
(1) Counsel was ineffective for failing to:
(a) explain the law of conspiracy to him;
(b) explain the difference between d-methamphetamine and
(c) explain the advantages of pleading guilty and explain
that if he pled guilty his offense level could have been
(2) The law of conspiracy is unconstitutional.
SCOPE OF RELIEF AVAILABLE UNDER § 2255
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. Gaudet, 81 F.3d 585, 589 (5th Cir.
1996) (citations and internal quotation marks omitted). It is
well-established that “a collateral challenge may not
do service for an appeal.” United States v.
Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en
banc) (quoting United States v. Frady, 456 U.S.
152, 165 (1982)).
failure to raise a claim on direct appeal may procedurally
bar an individual from raising the claim on collateral
review. United States v. Willis, 273 F.3d 592, 595
(5th Cir. 2001). Defendants may only collaterally attack
their convictions on grounds of error omitted from their
direct appeals upon showing “cause” for the
omission and “actual prejudice” resulting from
the error. Shaid, 937 F.2d at 232. However,
“there is no procedural default for failure to raise an
ineffective-assistance claim on direct appeal” because
“requiring a criminal defendant to bring [such] claims
on direct appeal does not promote the objectives” of
the procedural default doctrine, “to conserve judicial
resources and to respect the law's important interest in
the finality of judgments.” Massaro v. United
States, 538 U.S. 500, 503-04 (2003). The Government may
also waive the procedural bar defense. Willis, 273
F.3d at 597.