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United States v. Perez

United States District Court, S.D. Texas, Corpus Christi Division

May 24, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
JOHN ANTHONY PEREZ, Defendant/Movant.



         Defendant/Movant 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 is DENIED.

         I. BACKGROUND

         In 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 plea agreement.

         The Presentence Investigation Report (PSR, D.E. 21) calculated Movant's advisory Guideline sentencing range at life imprisonment.[1] 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.

         Judgment 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 is timely.


         Movant's § 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).


         A. 18 U.S.C. § 2255

         There 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).

         B. Ineffective Assistance of Counsel

         An 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).

         In 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 ...

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