IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JASON CARL TAYLOR, §

§

Movant, §

§

V. § NO. 4:22-CV-661-O

§ (NO. 4:20-CR-206-O)

UNITED STATES OF AMERICA, §

§

Respondent. §

OPINION AND ORDER

Came on for consideration the motion of Jason Carl Taylor 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 response, the reply,1the record, and applicable authorities, concludes that the 

motion must be DENIED.

I. BACKGROUND

On July 18, 2020, Arlington Police Department officers responded to an emergency call 

from Rodolfo Levya that a white male suspect with tattoos driving a gray four-door vehicle had 

pointed a black shotgun with a rubber grip at him. When officers arrived, they saw Movant, who 

matched the description of the assailant, in the driver’s seat of a gray Mazda3. Brandi Smith and 

Cherokee Smith were also in the vehicle. When officers searched the vehicle, they found a 12-

gauge shotgun between the driver’s seat and the center console, as well as five shotgun shells in 

a firearm case. Officers also recovered baggies of marijuana and methamphetamine, along with 

counterfeit documents. CR ECF No.21; CR ECF No. 28, ¶¶ 7–9; CR ECF No. 59.

1 The Court is not considering the new grounds Movant purports to raise in his reply. See ECF No. 2 (cautioning 

that new grounds could not be raised in a reply). See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).

2 The “CR ECF No. __” reference is to the number of the item on the docket in the underlying criminal case, No. 

4:20-CR-206-O.

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On August 12, 2020, Movant was named in a one-count indictment charging him with 

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). CR 

ECF No. 13. Movant waived arraignment and entered a plea of not guilty. CR ECF No. 17. After 

the case was set for trial, Movant changed his plea. CR ECF No. 24. Movant and his counsel signed 

a factual resume setting forth the penalties Movant faced, the potential statutory enhancements 

under the Armed Career Criminal Act, the elements of the offense, and the stipulated facts 

establishing that Movant had committed the offense. CR ECF No. 21. Movant testified under oath 

at his rearraignment hearing that: he had discussed with his attorney the matter of sentencing and 

how the guidelines might apply in his case; he understood that the Court would not be bound by 

any stipulated facts and could impose a sentence above or below the guideline range; he had 

reviewed the indictment and understood the charge against him; he understood and admitted that 

he committed all of the essential elements of the offense charged; he was fully satisfied with the 

representation provided by his attorney; no one had made any promise or assurance or threat to 

coerce him to plead guilty; he understood that he could be imprisoned for a term not to exceed ten 

years, subject to enhancement under 18 U.S.C. § 924(e); and, he signed the factual resume and all 

of the facts stated in it were true. CR ECF No. 60. 

The probation officer prepared the presentence report (“PSR”), which reflected that 

Movant’s base offense level was 20. CR ECF No. 28, ¶ 24. He received a four-level enhancement 

for use or possession of the firearm in connection with another felony offense, aggravated assault. 

Id. ¶ 25. Specifically, Movant “pointed the shotgun at Levya and yelled, ‘you better move 

somewhere or I’m gonna flatten you.’” Id. He received a two-level and a one-level reduction for 

acceptance of responsibility. Id. ¶¶ 31, 32. Based on a total offense level of 21 and a criminal 

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history category of VI, his guideline imprisonment range was 77 to 96 months. Id. ¶ 137. The PSR 

also included a discussion of factors that might warrant departure, id. ¶¶ 148, 149, and factors that 

might warrant a sentence outside the advisory guideline system. Id. ¶ 150. Movant filed objections, 

CR ECF No. 40, and the probation officer prepared an addendum to the PSR rejecting the 

objections. CR ECF No. 41. 

The Court sentenced Movant to a term of imprisonment of 96 months. CR ECF No. 45. He 

appealed. CR ECF No. 48. The United States Court of Appeals for the Fifth Circuit affirmed his 

sentence. United States v. Taylor, No. 21-10557, 2022 WL 458392 (5th Cir. Feb. 15, 2022). 

Movant did not file a petition for writ of certiorari. 

II. GROUNDS OF THE MOTION

Movant asserts three substantive grounds in support of his motion, all alleging that he 

received ineffective assistance of counsel. First, counsel failed to investigate the allegations giving 

rise to the Section 2K2.1 enhancement. ECF No.31 at 4–8.4 Second, counsel failed to challenge 

the credibility of Task Force Officer Cline and failed to call the responding officer at Movant’s 

detention hearing. Id. at 9–12. Third, counsel sought multiple continuances, reflecting that he was 

unprepared for sentencing. Id. at 14–18. In his fourth ground, Movant alleges that these failures 

establish cumulative prejudice. Id. at 19.

3 The “ECF No. __” reference is to the number of the item on the docket in this civil action.

4 The reference is to “Page __ of 25” as reflected at the top right portion of the document on the Court’s electronic 

filing system. 

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III. APPLICABLE LEGAL STANDARDS

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.

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 Aare 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

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 

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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 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 his first ground, Movant complains that his counsel failed to investigate the allegations 

pertaining to the 4-point enhancement. ECF No. 1 at 5. A decision not to investigate a particular 

matter is “assessed for reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel’s judgments.” Newbury v. Stephens, 756 F.3d 850, 873 (5th Cir. 2014) 

(quoting Strickland, 466 U.S. at 690–91). To prevail, a movant must allege with specificity what 

the investigation would have revealed and how it would have altered the outcome of the 

proceedings. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). He must show a 

reasonable probability that the result would have been different, that is, a probability sufficient to 

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undermine confidence in the outcome. Newbury, 756 F.3d at 873. The probability must be 

substantial, not just conceivable. Id.

Here, as the government points out, Movant’s counsel had no need to investigate further, 

because the matters Movant now relies on were known at the time. That is, counsel knew at the 

time of Movant’s detention hearing through his questioning of witnesses that the occupants of the 

vehicle with Movant did not corroborate Leyva’s allegation that Movant had threatened him with 

a shotgun. CR ECF No. 59. Movant stipulated that he was in the driver’s seat of the vehicle where 

the shotgun was located when officers responded to Leyva’s call and that he matched the physical 

description of the individual with the gun described in the call. CR ECF No. 21 at 2. Movant 

admitted that he knowingly possessed the firearm. Id. at 3. The PSR reflected that four levels 

should be added to Movant’s base offense level because he used or possessed the firearm in 

connection with another offense. CR ECF No. 28, ¶ 25. Movant filed objections, arguing that there 

was a “verbal altercation between the parties present, but Movant did not, nor did anyone else, 

point the shotgun at issue towards any other person.” CR ECF No. 40 at 1. The addendum 

acknowledged the objection, but noted that Leyva’s statements to police gave rise to the 

application of the enhancement. CR ECF No. 41. On appeal, Movant challenged the application 

of the enhancement and the appellate court determined that the information in the PSR was 

sufficiently corroborated to support the enhancement. Taylor, 2022 WL 458392, at *1.

In his second ground, Movant alleges that counsel was ineffective at the detention hearing 

by failing to challenge the credibility of Task Force Officer Cline, who testified on behalf of the 

government, and failing to call the responding officer as a witness.5 ECF No. 1 at 9–10. He does 

5 The Court notes that, to the extent Movant is complaining about counsel’s conduct at the detention hearing, that 

complaint was waived by his plea of guilty. United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008); United States 

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not explain, however, what more counsel was to have done to challenge Cline’s credibility or why 

calling the responding officer to testify would have made any difference whatsoever. Counsel 

questioned Cline and got him to admit that none of the three people in the car said a weapon was 

ever pulled on anyone; nobody other than the victim [Leyva] corroborated the idea that the shotgun 

had ever been pulled out; to Cline’s knowledge, no one else who was present was interviewed; 

and, Cline was not present on the scene. CR ECF No. 59 at 11–12. How to cross-examine a witness 

is within counsel’s discretion. See Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983).

Movant has not overcome the strong presumption that counsel’s conduct was within the 

wide range of reasonable professional assistance. Newbury, 756 F.3d at 872–73. He has not shown 

what any further investigation would have revealed and how that new information would have 

made any difference. Green, 882 F.2d at 1003. Nor has he named any particular witness who would 

have testified on his behalf, set out the content of the proposed testimony, and shown that the 

testimony would have been favorable so as to have made a difference in the outcome. Gregory v. 

Thaler, 601 F.3d 347, 352–53 (5th Cir. 2010). 

In his third ground, Movant alleges that statements made by counsel in various motions to 

continue the sentencing show that counsel was not sufficiently prepared. ECF No. 1 at 14–15. He 

says that his counsel “lacked due diligence” and failed to “conduct an adequate investigation,” but 

does not specify what his counsel did or failed to do that fell below the wide range of reasonable 

professional assistance. His conclusory allegations are insufficient. Miller, 200 F.3d at 282. 

Finally, in his fourth ground, Movant alleges that the cumulative effect of his counsel’s 

errors was so great that he was denied effective assistance of counsel. ECF No. 1 at 19. For all of 

v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000).

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the reasons discussed, Movant has not established that counsel was ineffective in any respect.6

There is no error to cumulate. Miller, 200 F.3d at 286 n.6. See also United States v. Hall, 455 F.3d 

508, 520 (5th Cir. 2006) (“ineffective assistance of counsel cannot be created from an 

accumulation of acceptable decisions and actions”).

V. CONCLUSION

For the reasons discussed herein, the relief sought in movant’s motion is DENIED.

Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of 

appealability is DENIED.

SO ORDERED on this 10th day of January, 2023.

6 As the government notes, had counsel been as aggressive as Movant contends he should have been, Movant might 

well have lost acceptance of responsibility. ECF No. 7 at 12 & n.4.

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