United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge.
Juanita Eva Velasquez, proceeding pro se, filed a
motion to vacate, set aside, or correct her sentence under 28
U.S.C. § 2255. (Docket Entry No. 147.) The Government
filed a motion for summary judgment (Docket Entry No. 155),
to which Defendant filed a response (Docket Entry No. 156).
reviewed the section 2255 motion, the Government's motion
for summary judgment, the response, the record, and the
applicable law, the Court GRANTS the motion for summary
judgment and DISMISSES the section 2255 motion for the
reasons that follow.
pleaded guilty pursuant to a written plea agreement to
conspiracy to possess with intent to distribute over 500
grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. (Docket Entry
No. 69.) The Court sentenced her on June 30, 2015, to 262
months' imprisonment. (Docket Entries No. 119; 129, pp.
24-26). Defendant filed a direct appeal, but the Fifth
Circuit Court of Appeals dismissed the appeal pursuant to the
waiver of appeal provision in the written plea agreement.
(Docket Entry No. 142.)
raises the following grounds for habeas relief under section
1. Counsel was ineffective in failing to move for downward
departure based on Defendant's assistance.
2. The Court denied Defendant due process by accepting her
plea without supporting facts.
3. The Government committed prosecutorial misconduct by
delaying sentencing and misleading Defendant into believing
she was receiving a downward departure.
4. Defendant is entitled to relief under Johnson v.
United States and Welch v. United States in
light of an unconstitutional residual clause.
5. Defendant's sentence violates her protections against
cruel and unusual punishment.
Government argues that these claims are barred by the
collateral review waiver provision in the written plea
agreement and/or are without merit.
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). Nevertheless, 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).
written plea agreement executed and filed in this case,
Defendant agreed to the following provisions:
Defendant is aware that Title 28, United States Code, section
1291, and Title 18, United States Code, section 3742, afford
a defendant the right to appeal the conviction and sentence
imposed. Defendant is also aware that Title 28, United States
Code, section 2255, affords the right to contest or
"collaterally attack" the conviction and sentence
after the judgment of conviction and sentence has become
final. Defendant knowingly and voluntarily waives the right
to appeal or "collaterally attack" the conviction
and sentence, except that Defendant does not waive the right
to raise a claim of ineffective assistance of counsel on
direct appeal, if otherwise permitted, or on collateral
review in a motion under Title 28, United States Code,
section 2255. In the event Defendant files a notice of appeal
following the imposition of the sentence or later
collaterally attacks his conviction or sentence, the United
States will assert its rights under this agreement and seek
specific performance of these waivers.
(Docket Entry No. 69, pp. 5-6.)
the plea hearing, the Court inquired into the voluntariness
of Defendant's written plea agreement:
THE COURT: Counsel, I understand that we do have a written
plea agreement in this case?
MR. JONES: Yes, Your Honor.
THE COURT: All right. And this is being offered pursuant to
Rule 11(c)(1)(A) and (B) of the Federal Rules of Criminal
MR. JONES: Yes, Your Honor.
THE COURT: All right. Mr. Jones, would you please summarize
the essential terms of the plea agreement for the record.
MR. JONES: Yes, Your Honor. In exchange for the
defendant's plea of guilty to Count 1, as well as the
appellate and collateral attack waivers contained in the plea
agreement, the United States agrees to recommend at the time
of sentencing, to dismiss any remaining counts of the
indictment at the time of sentencing that are pending against
the defendant and to recommend full acceptance of
responsibility, the full three points should she continue to
accept responsibility as contemplated by the Sentencing
Guidelines. And it does carry -
THE COURT: 5K?
MR. JONES: - the potential for cooperation. That's not a
term of the plea agreement.
THE COURT: It's not?
MR. JONES: It's outlined as this is if you do want to
cooperate and seek a reduction, these are the terms that you
would need to comply with.
THE COURT: All right.
MR. JONES: But there's no up-front ...