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,
Movant Corey Nelson's pro se 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 summarily DISMISSED WITH
September 2016, Nelson pled guilty to conspiring to possess
with intent to distribute a controlled substance and, on July
17, 2017, was sentenced to 230 months' imprisonment and a
five-year term of supervised release. Crim. Doc. 2002. His
direct appeal was dismissed on his motion, and he
subsequently filed this timely Section 2255 motion, asserting
ineffective assistance of counsel at sentencing. Crim. Doc.
2257; Doc. 4 (Amended Section 2255 Motion). Because
Nelson has not shown that counsel was constitutionally
ineffective, however, his Section 2255 motion lacks merit.
obtain post-conviction relief on a claim that defense counsel
was constitutionally ineffective, the movant must prove that
counsel's performance was deficient and that
counsel's substandard performance caused prejudice.
Strickland v. Washington, 466 U.S. 668, 687-688
(1984). Failure to establish either deficient performance or
prejudice defeats the claim. Id. at 697. Moreover,
to prove prejudice, the 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.” Id. at 694. In the
sentencing context, the movant must demonstrate that his
sentence was increased by the deficient performance of
defense counsel. Glover v. United States, 531 U.S.
198, 200, 203-204 (2001).
asserts counsel rendered ineffective assistance when he
failed to: (1) file timely objections to the Presentence
Report (“PSR”); and (2) present argument in
support of an objection to the two-level enhancement for
maintaining drug-trafficking premises. Doc. 4 at 7. He avers
that counsel did not file objections within 14 days of the
filing of the PSR and that counsel's untimely objections
presented only the same arguments initially raised by
Nelson's pro se objections. Doc. 4 at 13; Crim.
Doc. 1990; Crim. Doc. 1978. Nelson cannot show prejudice,
however. Nelson affirmed at sentencing that he had no
objection to counsel's late-filed objections. Crim. Doc.
2177 at 5-6 (Sentencing Tr.). The Court thus granted
counsel's motion for leave to file the late objections
and considered them, along with Nelson's earlier, pro
se objections, at sentencing. Crim. Doc. 2177 at 7;
Crim. Doc. 1989.
the drug-trafficking premises enhancement, Nelson contends
that counsel should have argued that “the Government
never produced any evidence of Cocaine or anything else
actually stored” at the Caracus Street residence. Doc.
4 at 13, 16. Nelson argues that the “tips was [sic]
anonymous and without any foundational facts” and that,
while “CI Zuniga believed that drugs were stored at the
residence o[n] Caracus street, ” he “ha[d] no
absolute knowledge that there were kilograms of cocaine
being stored there.” Doc. 4 at 17. Contrary to
Nelson's assertion, however, counsel made the same
argument at sentencing. Crim. Doc. 2177 at 34-35. The
argument was unavailing, however, because the Court found
strong evidence (relying on Agent Harrison's testimony,
the Presentence Report, and the Government's
well-supported response) that the Caracas residence was used
for distributing drugs-not just as a “party
spot”-which supported the drug-trafficking-premises
enhancement. Crim. Doc. 2177 at 36-38. On this record, there
is no evidence that the Court would have ruled differently.
Thus, Nelson cannot demonstrate that counsel's alleged
deficient performance resulted in a higher sentence, and his
second claim likewise fails.
asserts that he is entitled to an evidentiary hearing. Doc. 4
at 16, 18. He maintains that a hearing is needed to resolve
his claims and that his assertions raise contested factual
issues. Id. Nelson is not entitled to an evidentiary
hearing, however. “When the files and records of a case
make manifest the lack of merit of a section 2255 [motion],
the trial court is not required to hold an evidentiary
hearing.” United States v. Hughes, 635 F.2d
449, 451 (5th Cir. 1981); see also United States
v. Harrison, 910 F.3d 824, 826-27 (5th Cir. 2018)
(“A § 2255 motion requires an evidentiary hearing
unless either (1) the movant's claims are clearly
frivolous or based upon unsupported generalizations, or (2)
the movant would not be entitled to relief as a matter of
law, even if his factual assertions were true.”).
Accordingly, because Nelson's claims lack merit for the
reasons stated above, no evidentiary hearing is required in
this Section 2255 proceeding.
foregoing reasons, the motion to vacate sentence under 28
U.S.C. § 2255 should be summarily DISMISSED WITH
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