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IN THE UNITED STATES DISTRICT COURT 1\UG IO 2022 I 

NOR:HoERR: :oI:TTHRID\:Io:Io~xAs i r ;~: ' ' :_0,1 d) i 'c,J~:T-J 

LUIS MARTINEZ, § 

§ 

Movant, § 

§ 

vs. § NO. 4:22-CV-361-A 

UNITED STATES OF AMERICA, 

§ (NO. 4:19-CR-362-A) 

§ 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Came on for consideration the motion of Luis Martinez, 

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

judgment 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-3 62 -A, styled "United States v. Juan Rodriguez, et al. , " and 

applicable authorities, finds that the motion should be denied. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On December 10, 2019, movant was named with others in a 

three-count information charging him in count two with 

conspiracy to possess with intent to distribute a mixture and 

substance containing a detectable amount of methamphetamine, in 

Case 4:22-cv-00361-A Document 15 Filed 08/10/22 Page 1 of 8 PageID 65
violation of 21 U.S.C. § 846. CR Doc. 1 182. On December 31, 2019, 

movant appeared before the court with the intent to enter a plea 

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

208. Movant and his attorney signed a waiver of indictment. CR 

Doc. 209. 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. 210. 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 could be as much as twenty 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 

and understood the factual resume and understood everything in 

1 The "CR Doc. ." reference is to the number of the item on the docket in the underlying criminal case) No. 4: l 9-

CR-362-A. 

2 

Case 4:22-cv-00361-A Document 15 Filed 08/10/22 Page 2 of 8 PageID 66
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. 542. 

The probation officer prepared the PSR, which reflected 

that movant's base offense level was 30. CR Doc. 301, 1 28. He 

received a two-level and a one-level reduction for acceptance of 

responsibility. Id. 11 35, 36. Based on a total offense level of 

27 and a criminal history category of VI, movant's advisory 

guideline range was 130 to 162 months. Id. 1 86. The PSR also 

discussed factors that might warrant a departure or sentence 

outside of the advisory guideline system. Id. 1, 100-02. Movant 

filed objections, CR Doc. 321, and the probation officer 

prepared an addendum to the PSR. CR Doc. 345, rejecting the 

objections. 

On April 24, 2020, the court sentenced movant to a term of 

imprisonment of 188 months. CR Doc. 408; CR Doc. 411. Movant 

appealed. CR Doc. 437. His sentence was affirmed. United States 

v. Martinez, 834 F. App'x 951 (5th Cir. 2021). 

II. 

Grounds of the Motion 

Movant asserts three grounds in support of his motion, 

worded as follows: 

3 

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Ground One: MOVANT SUBMITS THAT THE CALCULATION OF 

SENTENCE BASED ON THE TOTAL AMOUNT OF DRUGS IN THE 

CONSPIRACY WAS A MISAPPLICATION OF THE SENTENCING 

GUIDELINES 

Ground Two: THE DISTRICT COURT FAILED TO GIVE 

MEANINGFUL CONSIDERATION TO THE PARSIMONY PRINCIPLE, 

SECTION 3553 AND ALL THOSE FACTORS CONSISTENT 

Ground Three: PURITY OF DRUGS OR LACK OF IT SHOULD 

HAVE BEEN GROUNDS FOR DOWNWARD DEPARTURE 

Doc. 2 1 at 7. The motion is accompanied by a memorandum in 

support. Doc. 2. 

III. 

Standards of Review 

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. 

4 

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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 

5 

Case 4:22-cv-00361-A Document 15 Filed 08/10/22 Page 5 of 8 PageID 69
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 and third grounds, movant argues that his 

guideline calculation was erroneous based on the amount and 

6 

Case 4:22-cv-00361-A Document 15 Filed 08/10/22 Page 6 of 8 PageID 70
purity of the drugs for which he was held accountable. 3 He failed 

to raise these claims on appeal as he should have (assuming they 

had any merit and they do not). As they are unexhausted, he must 

show both cause for his procedural default and prejudice 

resulting therefrom. Shaid, 937 F.2d at 232. He has done 

neither. In any event, application of the guidelines is a 

nonconstitutional issue that cannot be raised here. United 

States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). See also 

United States v. Garcia, 68 F.3d 466, 1995 WL 581534, at *4-5 

(5th Cir. 1995) (claim based on erroneous drug quantity 

defaulted). And, finally, as the government notes, movant's 

allegations are wholly conclusory and insufficient. Ross v. 

Estelle, 694 F.3d 1008, 1012 (5th Cir. 1983). 

In his second ground, movant alleges that the court failed 

to give meaningful consideration to the "parsimony principle, 

section 3553 and all those factors consistent.• Doc. 1 at 7. 

However, he raised the issue of the 3553 factors on appeal and 

did not prevail. Martinez, 834 F. App'x at 951-52. He cannot 

raise the same issue here. United States v. Fields, 761 F.3d 

443, 466 (5th Cir. 2014). 

3 The argument about the purity of the drugs may be one obtained from a co-defendant whose argument the Fifth 

Circuit found to be "baffling." See United States v. Rcbulloza, 16 F.4th 480,485 (5th Cir. 2021). 

7 

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Finally, to the extent movant may have intended to assert 

that he received ineffective assistance of counsel, he has made 

nothing but conclusory allegations. He has not identified any 

evidence that should have been presented nor has he shown how it 

would have impacted his sentence. There is simply no reason to 

believe that his counsel's performance fell below an objective 

standard of reasonableness. 

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 

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 August 10, 2022. 

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