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DeLeon v. United States

United States District Court, N.D. Texas, Dallas Division

February 7, 2019

JOSE MARIA DELEON, # 76243-379, Movant,



         Movant Jose Maria DeLeon, a federal prisoner, filed a pro se motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The District Court referred the resulting civil action to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the Court should deny the motion and summarily dismiss this action.


         On March 3, 2015, pursuant to a written plea agreement containing an appeal waiver, Movant pleaded guilty to aiding and abetting the manufacturing of firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) & 2. (Crim. Doc. 53).[1] On September 9, 2015, the Court sentenced Movant to 60 months imprisonment. (Crim. Doc. 52 at 56). Movant filed a direct appeal, which the Fifth Circuit dismissed. See United States v. DeLeon, 689 Fed.Appx. 283 (5th Cir. 2017).

         Movant then filed the instant § 2255 motion (Doc. 2), in which he raises four claims that he labels “Ineffective Assistance of Counsel.” In response, the government argues Movant's claims fail to address ineffective assistance of counsel, are waived, are procedurally barred, and lack merit. (Doc. 7). The motion is fully briefed and ripe for determination.


         To succeed on a claim of ineffective assistance of counsel, a movant must show “counsel's representation fell below an objective standard of reasonableness, ” with reasonableness judged under professional norms prevailing at the time counsel rendered assistance. Strickland v. Washington, 466 U.S. 668, 690 (1984). The standard requires the reviewing court to give great deference to counsel's performance, strongly presuming counsel exercised reasonable professional judgment. Id. The right to counsel does not require errorless counsel; instead, a criminal defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981); see also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d 279, 281-82 (5th Cir. 1984).

         Secondly, movant “must show that there is 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.” Strickland, 466 U.S. at 694. The movant must “affirmatively prove, ” not just allege, prejudice. Id. at 693. If he fails to prove prejudice, the court need not address the question of counsel's performance. Id. at 697. Merely presenting “conclusory allegations” of deficient performance or prejudice is insufficient to meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).


         Although he labels each of his four claims as “Ineffective Assistance of Counsel, ” see Doc. 2 at 10-14, Movant fails to address his counsel's performance in his § 2255 motion. He makes no allegation that his counsel provided deficient performance, or that he was prejudiced in any way. See Id. Movant's memorandum in support of his motion similarly fails to raise any ineffective-assistance-of-counsel claim. See Doc. 3. Merely, labeling a claim as “Ineffective Assistance of Counsel, ” without any further support is insufficient to support the claim. See Miller 200 F.3d at 282. Movant's conclusory allegations are insufficient to entitle him to relief. Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982) (“Mere conclusory statements do not raise a constitutional issue in a habeas case.”).

         In his reply, Movant, for the first time, appears to argue that his counsel provided ineffective assistance by “wrongly” advising him “to take a plea bargain of 60 months or five (5) years of incarceration.” (Doc. 10 at 23.). The Court may decline to consider this ineffective assistance of counsel claim asserted for the first time in his reply. See United States v. Marroquin, 2009 WL 89242, at *4; Bonds v. Quarterman, 2008 WL 4367294, at *3 n. 1; see also United States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998). But even if the Court considers it, the claim lacks merit. To satisfy the prejudice requirement in Strickland, Movant “must show that there is 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). In this case, Movant makes no mention that, much less shows a reasonable probability that, but for his counsel's advice, he would have insisted on going to trial. He has thus failed to demonstrate his counsel was ineffective.

         To the extent that Movant argues his counsel was ineffective at sentencing, presumably for not impeaching certain government witnesses who testified regarding sentencing enhancements, he fails to show how he was prejudiced by this. Through securing Movant's plea agreement, his counsel reduced Movant's sentencing exposure from ten to five years imprisonment and reduced his applicable guideline range by up to 27 months. (See Crim. Doc. 31-1 at ¶¶ 72-75). Even though, after hearing from the government's witnesses, the Court ultimately overruled all but one of Movant's counsel's objections to the enhancements, (see Crim. Doc. 52 at 45-46), this did not prejudice Movant. While imposing Movant's sentence, the Court stated, “I will say that a sentence of 60 months would be the Court's sentence without regard to the enhancement issues that the Court has ruled on. That is what I believe to be an appropriate sentence. And had that not been the guideline range, the Court would have varied upward to that sentence.” (Id. at 55-56). Movant has failed to prove he was prejudiced by his attorney's performance at sentencing. See Strickland, 466 U.S. at 693-94.


         To the extent that Movant's Section 2255 motion challenges the government's use of evidence and the Court's acceptance of that evidence, these arguments are waived and also procedurally barred. In Ground One, Movant argues that the government used false evidence “of one of their own government's witness during Indictment and Criminal Case Process.” (Doc. 2 at 10). In Ground Two, Movant argues that the coconspirators “were already in the thriving and lucrative firearms business” before he ever became involved in the scheme. (Id. at 11.) In Ground Three, Movant challenges a co-conspirator's credibility. (Id. at 12.), and in Ground Four, Movant claims that he was deprived of the “fair and equitable” ...

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