United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE
John Anthony Perez filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. D.E. 46.
Pending before the Court is the United States' (the
"Government") Motion to Dismiss (D.E. 51), to which
Movant has responded (D.E. 54). For the reasons stated
herein, the Government's motion is
GRANTED, and Movant's § 2255 motion
2016, an investigation into a stolen laptop computer
uncovered that Defendant had been using said laptop to search
and download child pornography, as well as to film himself
engaging in sexual acts with his three minor daughters.
Movant was indicted on three counts of sexual exploitation of
a child in violation of 18 U.S.C. §§ 2251(a),
2251(e), and 2. He pled guilty to all three counts without a
Presentence Investigation Report (PSR, D.E. 21) calculated
Movant's advisory Guideline sentencing range at life
imprisonment. However, the maximum sentence for sexual
exploitation of a child is 30 years. The Court sentenced
Movant to 250 months' imprisonment on each count, to run
consecutively, plus 20 years' supervised release on each
count, also to run consecutively. Movant was ordered to pay
$450, 000 in restitution to his victims, a special assessment
of $100 as to each count, and an additional assessment of $5,
000 as to each count, for a total assessment of $15, 300.
was entered August 20, 2016. Movant filed an appeal, wherein
he argued that the Court erred in imposing the three $5, 000
special assessments because he was indigent. The Fifth
Circuit dismissed the appeal on August 9, 2017. Movant's
conviction became final on November 7, 2017, the last day on
which he could have filed a petition for certiorari. He filed
the present motion under § 2255 on October 16, 2018. It
§ 2255 motion raises a single ground for relief: Trial
counsel was ineffective for failing to obtain a mental health
evaluation of Movant, who is an Iraq War veteran who suffers
from post-traumatic stress disorder (PTSD).
18 U.S.C. § 2255
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside, or correct his sentence: (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that 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). "Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice." United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Ineffective Assistance of Counsel
ineffective assistance of counsel allegation presented in a
§ 2255 motion is properly analyzed under the two-prong
test set forth in Strickland v. Washington, 466 U.S.
668, 689 (1984). United States v. Willis, 273 F.3d
592, 598 (5th Cir. 2001). To prevail on a claim of
ineffective assistance of counsel, a movant must demonstrate
that his or her counsel's performance was both deficient
and prejudicial. Id. This means that a movant must
show that counsel's performance was outside the broad
range of what is considered reasonable assistance and that
this deficient performance led to an unfair and unreliable
conviction and sentence. United States v. Dovalina,
262 F.3d 472, 474-75 (5th Cir. 2001).
reviewing ineffectiveness claims, "judicial scrutiny of
counsel's performance must be highly deferential,"
and every effort must be made to eliminate "the
distorting effects of hindsight." Strickland,
466 U.S. at 689. An ineffective assistance claim focuses on
"counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's
conduct[, ]" because "[i]t is all too tempting for
a defendant to second-guess counsel's assistance after
conviction or adverse sentence." Id. at 689-90.
With regard to the prejudice requirement, a 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. Armstead v. Scott,37 F.3d 202, 210 ...