BRYAN 

vs. 

UNITED 

IN 

MONTALVO, 

Movant, 

U.S. DTSH~JCT COlill.T 

NORTBS1G-f DISTRICT OF TEXAS 

SEP - 7 2022 

THE UNITED STATES DISTRICT •OURT•-·---·-·-·--·' 

NORTHERN DISTRICT OF TEXAS CLERIC U.S. JJTSTT1CT COURT 

FORT WORTH DIVISION BY---,,.--,---- D_~puty _ 

§ 

§ 

§ 

§ 

§ NO. 4:22-CV-501-A 

§ (NO. 4: 19-CR-160-A) 

STATES OF AMERICA, § 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Came on for consideration the motion of Bryan Montalvo, 

movant, under 28 U.S.C. § 2255 to vacate, set aside, or correct 

sentence by a person in federal custody. The court, having 

considered the motion, the government's response, the record, 

including the record in the underlying criminal case, No. 4:19-

CR-160-A, and applicable authorities, finds that the motion 

should be denied. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On May 21, 2019, movant was named in a one-count 

information charging him with possession with intent to 

distribute 50 grams or more of a mixture and substance 

containing a detectable amount of methamphetamine, in violation 

Case 4:22-cv-00501-A Document 7 Filed 09/07/22 Page 1 of 11 PageID 40
of 21 U.S.C. § 84l(a) (1) and (b) (1) (B). CR Doc. 1 17. On June 7, 

2019, movant appeared before the court with the intent to enter 

a plea of guilty without benefit of a written plea agreement. CR 

Doc. 21. Movant and his attorney signed a waiver of indictment. 

CR Doc. 22. They also signed a factual resume setting forth the 

maximum penalties faced by movant, the elements of the offense, 

and the stipulated facts establishing that movant had committed 

the offense. CR Doc. 24. Movant testified under oath at 

arraignment that: He understood that he should never depend or 

rely upon any statement or promise by anyone as to what penalty 

would be assessed against him and that his plea must not be 

induced or prompted by any promises, mental pressure, threats, 

force, or coercion; he had discussed with his attorney how the 

sentencing guidelines might apply in his case; the court would 

not be bound by the stipulated facts and could take into account 

other facts; the guideline range could not be determined until 

the presentence report ("PSR") had been prepared; his term of 

imprisonment would be at least five years and could be as much 

as forty years; he understood the elements of the offense and he 

admitted that all of them existed; he had read and understood 

the information; he had read the factual resume and understood 

1 The "CR Doc. "1efcrcnce is to the numbe1 of the item on the docket 111 the underlying criminal case, No. 4· 19-

CR-160-A. 

2 

Case 4:22-cv-00501-A Document 7 Filed 09/07/22 Page 2 of 11 PageID 41
everything in it; he was satisfied with his representation; no 

threats or promises had been made to induce him to plead guilty; 

and, the stipulated facts in the factual resume were true. CR 

Doc. 49. 

The probation officer prepared the PSR, which reflected 

that movant's base offense level was 34. CR Doc. 27, 1 23. He 

received two-level enhancements for possession of firearms and 

maintaining a drug premises. Id. 11 24, 25. He received a twolevel and one-level reduction for acceptance of responsibility. 

Id. 11 31, 32. Based on a total offense level of 35 and a 

criminal history category of VI, movant's guideline imprisonment 

range was 292 to 365 months. Id. 1 94. Movant filed objections, 

CR Doc. 29, and the probation officer prepared an addendum to 

the PSR. CR Doc. 32. 

On November 22, 2019, the court sentenced movant to a term 

of imprisonment of 292 months. CR Doc. 40. Movant appealed, CR 

Doc. 42, and his sentence was affirmed. United States v. 

Montalvo, 836 F. App'x 300 (5th Cir. 2020). His petition for 

writ of certiorari was denied. Montalvo v. United States, 141 S. 

Ct. 2742 (2021). 

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II. 

Grounds of the Motion 

Movant urges three grounds in support of his motion, all 

alleging that he received ineffective assistance of counsel. The 

first ground complains of the actions of counsel at the 

pretrial/plea stage; the second complains of actions of counsel 

during the sentencing stage; and, the third complains of the 

actions of counsel on appeal. Doc.' 1 at PageID' 4, 5, & 7. 

III. 

Applicable Legal Principles 

A. 28 U.S.C. § 2255 

After conviction and exhaustion, or waiver, of any right to 

appeal, courts are entitled to presume that a defendant stands 

fairly and finally convicted. United States v. Frady, 456 U.S. 

152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-

32 (5th Cir. 1991). A defendant can challenge his conviction or 

sentence after it is presumed final on issues of constitutional 

or jurisdictional magnitude only, and may not raise an issue for 

the first time on collateral review without showing both •cause• 

for his procedural default and •actual prejudice• resulting from 

the errors. Shaid, 937 F.2d at 232. 

2 The "Doc. "reference is to the number of the item on the docket in this civil action. 

3 The "PagcID _" reference is to the page number assigned by the coutt's electronic filing system and is used 

because the typewritten numbers on the form used by rnovant are not the actual page numbers of the document. 

4 

Case 4:22-cv-00501-A Document 7 Filed 09/07/22 Page 4 of 11 PageID 43
Section 2255 does not offer recourse to all who suffer 

trial errors. It is reserved for transgressions of 

constitutional rights and other narrow injuries that could not 

have been raised on direct appeal and would, if condoned, result 

in a complete miscarriage of justice. United States v. Capua, 

656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other 

words, a writ of habeas corpus will not be allowed to do service 

for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974); 

United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). 

Further, if issues "are raised and considered on direct appeal, a 

defendant is thereafter precluded from urging the same issues in 

a later collateral attack." Moore v. United States, 598 F.2d 439, 

441 (5th Cir. 1979) (citing Buckelew v. United States, 575 F.2d 

515, 517-18 (5th Cir. 1978)). 

B. Ineffective Assistance of Counsel Claims 

To prevail on an ineffective assistance of counsel claim, 

movant must show that (1) counsel's performance fell below an 

objective standard of reasonableness and (2) there is a 

reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceedings would have been different. 

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also 

Missouri v. Frye, 566 U.S. 133, 147 (2012). '' [A] court need not 

determine whether counsel's performance was deficient before 

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examining the prejudice suffered by the defendant as a result of 

the alleged deficiencies.'' Strickland, 466 U.S. at 697; see also 

United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000). 

"The likelihood of a different result must be substantial, not 

just conceivable," Harrington v. Richter, 562 U.S. 86, 112 

(2011), and a movant must prove that counsel's errors "so 

undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just 

result." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting 

Strickland, 466 U.S. at 686). Judicial scrutiny of this type of 

claim must be highly deferential and the defendant must overcome 

a strong presumption that his counsel's conduct falls within the 

wide range of reasonable professional assistance. Strickland, 

466 U.S. at 689. Simply making conclusory allegations of 

deficient performance and prejudice is not sufficient to meet 

the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th 

Cir. 2000). 

IV. 

Analysis 

In support of his first ground, movant makes four 

allegations that essentially repeat the contention that his 

counsel failed to properly advise him that the court could 

reject the terms of his proffer and plea agreement and use 

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statements movant made to impose a higher than promised 

sentence. Doc. 1 at PageID 4. He does not allege any facts to 

explain what he means. His conclusory allegations are 

insufficient to raise a claim. Ross v. Estelle, 694 F.3d 1008, 

1012 (5th Cir. 1983). For example, he vaguely refers to a 

"promised" sentence, but does not describe when, where, and by 

whom any promise was made, or identify any witness to the 

promise, as would be required to pursue such a claim. United 

States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). 

To the extent that movant may be claiming that his plea was 

not knowing, voluntary, or intelligent, such contention is 

belied by the record. CR Doc. 49. Movant has failed to present 

the court with anything that would cause the court to conclude 

that any aspect of this ground has the slightest merit. "Solemn 

declarations in open court carry a strong presumption of 

verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977) 

Likewise, the documents he signed are entitled to the 

presumption. United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 

1994); Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985) 

A plea is not rendered involuntary because of an erroneous 

estimate by counsel of the length of sentence. Daniel v. 

Cockrell, 283 F.3d 697, 703 (5th Cir. 2002), abrogated on other 

grounds, Glover v. United States, 531 U.S. 198 (2005); Beckham 

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v. Wainwright, 639 F.2d 262, 265 (5th Cir. 1981). A prediction, 

prognosis, or statement of possibilities does not constitute an 

actual promise. Harmason v. Smith, 888 F.2d 1527, 1532 (5th Cir. 

1989). 

Movant's guilty plea was knowing and voluntary and made with 

sufficient awareness of the relevant circumstances and likely 

consequences. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). 

Movant has failed to provide any independent evidence in support 

of any of his contentions that are at variance with the 

statements he made, or the answers he gave, while under oath at 

the arraignment hearing. To whatever extent movant might be 

suggesting that his attorney made any representation or promise 

to him as to the level of imprisonment that might be imposed on 

him, the testimony given by movant at his arraignment hearing is 

direct proof that no such thing occurred. Further, the record 

reflects that movant did not enter into a plea agreement. 

Rather, he signed a Proffer Interview Conditions document that 

was made part of the record. CR Doc. 49 at 33-34; CR Doc. 43. 

The document specifically apprised movant that the court could 

use information movant provided in determining whether, or to 

what extent, a downward departure was warranted. CR Doc. 43-1 at 

1. As the court of appeals determined, the court properly used 

information provided by movant for the purpose of ruling on the 

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government's 5Kl.1 motion. Montalvo, 836 F. App'x at 303-04. 

This ground is wholly without merit. 

In support of his second ground, movant asserts that his 

counsel was ineffective during the sentencing phase of the 

proceedings. He refers to the failure to review •all legal and 

factual mitigating evidence" but does not describe specifically 

what counsel failed to review or how it would have made any 

difference in his sentence. He claims counsel should have 

objected to the government's •failure to file a 18 U.S.C 3553(c) 

motion," but does not explain what motion was required or why. 

He refers to the •over-representation of criminal history," 

again failing to explain what he means. Doc. 1 at PageID 5. 

Conclusory allegations fail to raise a constitutional issue. 

United States v. Demik, 489 F.3d 644, 646-47 (5th Cir. 2007); 

Miller, 200 F.3d at 282. 

The only specific allegation about sentencing that movant 

does make is that his counsel failed to object to the 

enhancements for possession of a firearm and for maintaining a 

drug premises. Doc. 1 at PageID 5. However, movant is wrong. His 

attorney did file objections on his behalf regarding these two 

enhancements. CR Doc. 29. 

Finally, in support of his third ground, movant alleges 

that his counsel provided ineffective assistance on appeal by 

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failing to properly consult him and by failing to appeal the two 

enhancements and the court's "upward departure." Doc. 1 at 

PageID 7. Again, movant does not allege enough specific facts to 

state a plausible claim regarded the failure to consult him. He 

does not explain what he was to be consulted about or how any 

such consultation would have affected the outcome. His 

conclusory allegations do not state a claim. Demik, 489 F.3d at 

646-47; Miller, 200 F.3d at 282. 

Counsel was not required to raise every nonfrivolous ground 

of appeal available. United States v. Williamson, 183 F.3d 458, 

462 (5th Cir. 1999). In this case, he chose to pursue the 

strongest argument available. That he did not prevail does not 

mean that he provided ineffective assistance. The record 

reflects that movant did not receive an upward departure. 

Rather, the court imposed a within-guideline sentence. 

In sum, movant has not shown that he received ineffective 

assistance of counsel in any respect. 

V. 

Order 

The court ORDERS that all relief sought by movant in his 

motion under 28 U.S.C. § 2255 be, and is hereby, denied. 

Pursuant to Rule 22(b) of the Federal Rules of Appellate 

Procedure, Rule ll(a) of the Rules Governing Section 2255 

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Proceedings for the United States District Courts, and 28 U.S.C. 

§ 2253(c) (2), for the reasons discussed herein, the court further 

ORDERS that a certificate of appealability be, and is hereby, 

denied, as movant has not made a substantial showing of the 

denial of a constitutional right. 

SIGNED September 7, 2022. 

or United 

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