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Perez v. United States

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

March 15, 2019

Guillermo Perez, #49181-177, Movant,
v.
United States of America, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, the motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 was referred to the United States Magistrate Judge for case management. As detailed here, the Section 2255 motion should be DENIED.

         I. BACKGROUND

         In 2015, Movant Guillermo Perez pled guilty, pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C), to two counts of assault on a federal officer and was sentenced to 240 months' imprisonment-a consecutive 120-month term on each count. Crim. Doc. 53. His direct appeal was dismissed as frivolous. United States v. Perez, 687 Fed.Appx. 384 (5th Cir. 2017). Perez subsequently filed this pro se Section 2255 action, alleging ineffective assistance of counsel. Doc. 1. The Government filed a response in opposition. Doc. 7. Perez did not file a reply.

         Upon review, Perez has failed to show that counsel was constitutionally ineffective. Thus, his Section 2255 motion fails on the merits.

         II. ANALYSIS

         To establish ineffective assistance of counsel, a movant must demonstrate counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Failure to establish either deficient performance or prejudice defeats the claim. Id. at 697.

         To prove deficient performance under Strickland, the movant must show that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The proper measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688. That said, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

         To demonstrate prejudice in the context of a guilty plea, the movant must show that “counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The movant bears the burden of demonstrating 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.” Id.

         Perez alleges that counsel rendered ineffective assistance by advising him to (1) sign a false factual resume and (2) accept the Rule 11(c)(1)(C) agreement for a 20-year sentence. Doc. 1 at 6. In essence, Perez's argument is that there was an insufficient factual basis for his guilty plea to the offense of assault on a federal officer. Id. He maintains that he did not knowingly and intentionally use a firearm, did not realize that the individuals were federal agents, and did not hear the loudspeaker announcing that federal agents were present. Id. Perez also surmises that “there was no benefit to the plea bargain” because he faced only a guideline imprisonment range of 51-63 months. Doc. 1 at 6-7. He thus claims that he “was prejudiced by Counsel's erroneous advise [sic] because he is serving . . . 15 more years in federal prison.” Id.

         Perez's assertions are wholly unsupported and are belied by the record, including his previous sworn testimony. Perez affirmed under oath at rearraignment that he understood the essential elements of the offenses to which he was pleading guilty and admitted that he committed each. Crim. Doc. 99 at 12-13. He also confirmed that he had reviewed the factual resume in detail with counsel before signing it, that the stipulated facts contained therein were true, and that he understood them. Crim. Doc. 99 at 21. He stipulated:

[O]n February 3, 2015, a Federal Grand Jury returned an under-seal indictment against several individuals, including Jose Maya involving drug-trafficking. Arrest warrants were issued for the arrests of these defendants, including Maya. Guillermo Perez was not a defendant at that time.
As observed by agents, Maya had been residing at 3405 Brook Lane, Grand Prairie, Texas. Perez was also residing at this location and had been assisting Maya with May's drug-trafficking operations.
On the morning of February 10, 2015, at approximately 6:00 a.m., agents sought to arrest ...

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