United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge
Defendant Maria Vasquez, proceeding pro se, filed a
motion to vacate, set aside, or correct her sentence under 28
U.S.C. § 2255. (Docket Entry No. 97). The Government
filed a motion for judgment on the record (Docket Entry No.
104), to which Defendant filed a response (Docket Entry No.
reviewed the section 2255 motion, the motion for judgment on
the record, the record, and the applicable law, the Court
GRANTS the motion for judgment on the record and DENIES the
motion for relief under section 2255 for the reasons that
pleaded guilty to conspiracy to commit theft of public money
pursuant tol8U.S.C. §371, and was sentenced to serve a
57-month term of imprisonment, to be followed by a three-year
term of supervised release. The Court also ordered Defendant
to pay $587, 288.18 in restitution to Medicare, Medicaid, and
their affiliates. The conviction was affirmed on appeal.
See United States v. Vasquez, 672 Fed.Appx. 401 (5th
claims that trial counsel was ineffective in the following
1. Trial counsel failed to challenge the Court's finding
that a sufficient factual basis supported her guilty plea,
and failed to negotiate "a more sufficient plea" or
"secure a more adequate defense."
2. Trial counsel failed to challenge the Government's use
of respondeat superior to hold her liable for her
employees' unlawful actions.
(Docket Entry No. 98, p. 7.) The Government asserts that
these claims have no support in the record and that section
2255 relief should be denied.
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to
section 2255: (1) the imposition of a sentence in violation
of the Constitution or the laws of the United States; (2) a
lack of jurisdiction of the district court that imposed the
sentence; (3) the imposition of a sentence in excess of the
maximum authorized by law; and (4) the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255;
United States v. Placente, 81 F.3d 555, 558 (5th
Cir. 1996). Section 2255 is an extraordinary measure, and
cannot be used for errors that are not constitutional or
jurisdictional if those errors could have been raised on
direct appeal. United States v. Stumpf, 900 F.2d
842, 845 (5th Cir. 1990). If the error is not of
constitutional or jurisdictional magnitude, the movant must
show the error could not have been raised on direct appeal
and would, if condoned, result in a complete miscarriage of
justice. United States v. Smith, 32 F.3d 194, 196
(5th Cir. 1994).
pleadings of a pro se prisoner litigant are reviewed
under a less stringent standard than those drafted by an
attorney, and are provided a liberal construction. Haines
v. Kerner, 404 U.S. 519 (1972). Nevertfieless, a pro
se litigant is still required to provide sufficient
facts to support his claims, and "mere conclusory
allegations on a critical issue are insufficient to raise a
constitutional issue." United States v. Pineda,
988 F.2d 22, 23 (5th Cir. 1993). Accordingly, "[a]bsent
evidence in the record, a court cannot consider a habeas
petitioner's bald assertion on a critical issue in his
pro se petition ... to be of probative evidentiary
value." Ross v. Estelle, 694 F.2d 1008, 1011
(5th Cir. 1983).
Assistance of Trial Counsel
United States Supreme Court's decision in Strickland
v. Washington provides the familiar two-pronged test for
establishing a claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. 668, 687 (1984). A court need not address both
components of the inquiry if the defendant makes an
insufficient showing on one. Carter v. Johnson, 131
F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either
deficient performance or actual prejudice is fatal to an
ineffective assistance claim.").
counsel's performance is strongly presumed to fall within
the wide range of reasonable professional assistance.
Premo v. Moore, 562 U.S. 115, 121 (2011). To
overcome that presumption, a habeas petitioner must
"show that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed the defendant
by the Sixth Amendment." Id. at 121-22
(internal quotations omitted). The standard for judging
counsel's representation is a deferential one. "The
question is whether an attorney's representation amounted
to incompetence under 'prevailing professional norms,
' not whether it deviated from best practices or most
common custom." Id.
contends that trial counsel was ineffective in the following
Basis to Support Plea
asserts that trial counsel should have challenged the factual
basis for her guilty plea, as there was insufficient evidence
to support the plea. Her argument is groundless.
to accepting Defendant's guilty plea, the Court advised
Defendant on the record of the following:
THE COURT: Now, in order to prove that and for you to be
convicted, the government has to prove the following three
things with respect to the conspiracy charge. These things
have to be proved beyond a reasonable doubt by the
No. 1, that you and at least one other person made an
agreement to commit the crime of theft as charged in the
Secondly, that you knew the unlawful purpose of the agreement
and that you joined in it willfully, that is, with the intent
to further the unlawful purpose. And No. 3, that one of the
conspirators during the existence of this conspiracy
knowingly committed at least one of the overt acts described
in the ...