United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE
on the relevant findings and applicable law, the Motion
Under 28 U.S.C. § 2255, to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody,
received on June 23, 2016 (doc. 2), as amended (doc. 8), is
DENIED with prejudice.
Calderon-Canas (Movant) challenges his federal conviction and
sentence in Cause No. 3:13-CR-466-M. The respondent is the
United States of America (Government).
March 26, 2014, Movant was charged by superseding indictment
with conspiracy to distribute a schedule II controlled
substance in violation of 21 U.S.C. § 846 (count one),
and illegal reentry after removal in violation of 8 U.S.C.
§ 1326(a), (b)(2) (count two). (See doc.
105.) He pled guilty to count one on June 10,
2014. (See doc. 176.) The United States Probation
Office (USPO) filed a Presentence Report (PSR) on September
12, 2014, applying the 2013 United States Sentencing
Guidelines Manual (USSG). (See doc. 260-1 at 9,
¶ 32). The USPO filed an addendum on March 13, 2015,
that applied the 2014 USSG. (See doc. 316 at 2.)
Because Movant had two prior Texas felony convictions for
possession with intent to deliver a controlled substance that
were considered to be controlled substance offenses, it found
him to be a career offender with a criminal history category
of six under USSG § 4B1.1(b). (See doc. 260-1
at 10, ¶ 39, at 11, ¶¶ 44-45, at 12, ¶
50.) But for this finding, he would have had a criminal
history category of four. (See doc. 260-1 at 12,
¶ 50.) With an offense level of 29, the resulting
guideline range was 151-188 months of imprisonment.
(See doc. 316-1 at 2.) On May 14, 2015, Movant was
sentenced to 156 months’ imprisonment. (See
doc. 335 at 2.) His appeal was dismissed because it did not
present any non-frivolous issue. (See doc. 369.)
contends that his trial counsel was ineffective for failing
to object to the career offender enhancement under the
sentencing guidelines. (See No. 3:16-CV-1764-M, doc.
8 at 5.)
SCOPE OF RELIEF AVAILABLE UNDER § 2255
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. Gaudet, 81 F.3d 585, 589 (5th Cir.
1996) (citations and internal quotation marks omitted). It is
well-established that “a collateral challenge may not
do service for an appeal.” United States v.
Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en
banc) (quoting United States v. Frady, 456 U.S.
152, 165 (1982)).
failure to raise a claim on direct appeal may procedurally
bar an individual from raising the claim on collateral
review. United States v. Willis, 273 F.3d 592, 595
(5th Cir. 2001). Defendants may only collaterally attack
their convictions on grounds of error omitted from their
direct appeals upon showing “cause” for the
omission and “actual prejudice” resulting from
the error. Shaid, 937 F.2d at 232. However,
“there is no procedural default for failure to raise an
ineffective- assistance claim on direct appeal” because
“requiring a criminal defendant to bring [such] claims
on direct appeal does not promote the objectives” of
the procedural default doctrine, “to conserve judicial
resources and to respect the law’s important interest
in the finality of judgments.” Massaro v. United
States, 538 U.S. 500, 503-04 (2003). The Government may
also waive the procedural bar defense. Willis, 273
F.3d at 597.
INEFFECTIVE ASSISTANCE OF COUNSEL
Sixth Amendment to the United States Constitution provides in
relevant part that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of
Counsel for his defense.” U.S. Const. art. VI. It
guarantees a criminal defendant the effective assistance of
counsel, at trial and on appeal. Strickland v.
Washington, 466 U.S. 668 (1984); Evitts v.
Lucey, 469 U.S. 387, 396 (1985). To successfully state a
claim of ineffective assistance of counsel, the prisoner must
demonstrate that counsel’s performance was deficient
and that the deficient performance prejudiced his or her
defense. Id. at 687. A failure to establish either
prong of the Strickland test requires a finding that
counsel’s performance was constitutionally effective.
Id. at 696. The Court may address the prongs in any
order. Smith v. Robbins, 528 U.S. 259, 286 n.14
determining whether counsel’s performance is deficient,
courts “indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable assistance.” Strickland, 466 U.S.
at 689. “The reasonableness of counsel’s actions
may be determined or substantially influenced by the
defendant’s own statements or actions.”
Id. at 691. To establish prejudice, a petitioner
must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694;
Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000)
(inquiry focuses on whether counsel’s deficient
performance rendered the result of the trial unreliable or
the proceeding fundamentally unfair). Reviewing courts must
consider the totality of the evidence before the finder of
fact in assessing whether the result would likely have been
different absent counsel’s alleged errors.
Strickland, 466 U.S. at 695-96.
prejudice in the sentencing context, a petitioner must
demonstrate that the alleged deficiency of counsel created a
reasonable probability that his or her sentence would have
been less harsh. See Glover v. United States, 531
U.S. 198, 200 (2001) (holding “that if an increased
prison term did flow from an error [of counsel] the
petitioner has established Strickland
prejudice”). One cannot satisfy the second prong of
Strickland with mere speculation and conjecture.
Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.
1992). Conclusory allegations are insufficient to obtain
relief under § 2255. United States v. Woods,
870 F.2d 285, 288 n.3 (5th Cir. 1989); see also Miller v.
Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (holding that
“conclusory allegations of ineffective assistance of
counsel do not raise a constitutional issue in a federal
contends that counsel failed to argue that the career
offender enhancement could not apply to him because the two
Texas offenses of which he was convicted fall outside the
definition of “controlled substance offense.”
(3:16-CV-1764-M, doc. 8. at 6.)
appropriate approach to be used by courts in determining
whether a prior conviction qualifies as one for a controlled
substance offense as defined in the career offender
sentencing guideline, § 4B1.1(b),  depends on
whether the statute setting out the offense is divisible or
indivisible. See United States v. Hinkle, 832 F.3d
569, 574 (5th Cir. 2016) (citing United States v.
Najera-Mendoza, 683 F.3d 627, 629 (5th Cir. 2012)). If
the statute sets out “a single set of elements
[defining], ” or “various means of committing,
” a single crime or offense, it is indivisible.
UnitedStates v. Lerma, 877 F.3d 628, 631
(5th Cir. 2017); United States v. Howell, 838 F.3d
489, 497 (5th Cir. 2016). If the statute “lists
multiple, alternative elements, and so effectively creates
‘several different ... crimes, ’” it is
divisible. Descamps v. United States, 570 U.S. 254,
263-64 (2013) (quoting Nijhawan v. Holder, 557 U.S.
29, 41 (2009)). “An element of a crime must be
distinguished from the means of satisfying a ...