United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE
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.
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
review, Perez has failed to show that counsel was
constitutionally ineffective. Thus, his Section 2255 motion
fails on the merits.
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.
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.
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.
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.
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
On the morning of February 10, 2015, at approximately 6:00
a.m., agents sought to arrest ...