1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SERGIO AMAYA-MARTINEZ, §

§

Movant, §

§

v. § Civil Action No. 4:22-cv-235-O 

§ (Criminal No. 4:19-cr-362-O(15))

UNITED STATES OF AMERICA, § 

§

Respondent. §

OPINION and ORDER DENYING MOTION TO VACATE UNDER 28 U.S.C. § 2255 and

DENYING CERTIFICATE OF APPEALABILITY 

Before the Court are Movant Sergio Amaya-Martinez (“Amaya-Martinez”)’s amended 

motion to vacate under 28 U.S.C. § 2255 and incorporated brief (ECF No. 4) and the 

government’s response (ECF No. 8). Amaya-Martinez separately filed a motion for leave to 

amend the § 2255 motion with a separate brief (ECF Nos. 9 and 10), to which the government 

filed a response (ECF No. 14), and Amaya-Martinez then filed a reply (ECF No. 15). After 

considering the § 2255 motion and separate motion for leave to amend, responses, replies, 

record, and applicable law, the Court DENIES the motion for leave to amend the § 2255 motion 

and DENIES the motion to vacate under § 2255. 

I. BACKGROUND 

Amaya-Martinez was a member of a drug-trafficking ring associated with the Sinaloa 

Drug Trafficking Organization. Presentence Report (“PSR”) ¶¶ 12, 14, 16, United States v. 

Amaya-Martinez, No.4:19-cr-362-O (15), CR ECF No. 307-1.1 On several occasions, AmayaMartinez brokered kilogram-quantity methamphetamine deals between his supplier and a 

1The Court will now refer to docket entries of the underlying criminal case as only “CR ECF No. ___.”

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cooperating source. Id. at ¶¶ 21-23, 27. He also sold a kilogram of methamphetamine directly to 

the cooperating source. Id. at ¶ 26.

Amaya-Martinez was charged by information with one count of conspiracy to possess 

with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) 

and 21 U.S.C. § 846. Felony Information, CR ECF No. 182. He pleaded guilty via a written plea 

agreement. Plea Agreement, CR ECF No. 244; Factual Resume, CR ECF No. 246. He was 

ultimately sentenced to 168 months’ imprisonment. Judgment, CR ECF No. 511. AmayaMartinez filed a direct appeal, but the Fifth Circuit affirmed his conviction and sentence on April 

16, 2021. See United States v. Amaya-Martinez, 844 F. App’x 733, 734 (5th Cir. 2021). AmayaMartinez’s request for certiorari was denied on October 18, 2021. Amaya-Martinez, 142 S. Ct. 

411 (2021). As such, he had until October 18, 2022 to file a timely motion under § 2255. Thus, 

the § 2255 motion, initially filed in March 2022, is timely. 

II. GROUNDS FOR RELIEF 

In the amended2§ 2255 motion, Amaya-Martinez appears to argue that his guilty plea is 

invalid because his counsel ineffectively failed to (1) have the proceedings against him 

translated; (2) review discovery with him; (3) meet with him more frequently; and (4) adequately 

predict his sentence. Am. Mot. 7, 29, ECF No. 4. He also claims that his appellate counsel was 

ineffective. Id. 12-13.

III. APPLICABLE LAW and ANALYSIS

A. Standard of Review 

Under 28 U.S.C. § 2255, a prisoner may move the convicting court to vacate, set aside, or 

correct his conviction or sentence on four grounds: “(1) the sentence was imposed in violation of 

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the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the 

sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is 

‘otherwise subject to collateral attack.’” 28 U.S.C. § 2255(a); see United States v. Placente, 81 

F.3d 555, 558 (5th Cir. 1996) (citation omitted). 

“It has, of course, long been settled law that an error that may justify reversal on direct 

appeal will not necessarily support a collateral attack on a final judgment.” United States v. 

Addonizio, 442 U.S. 178, 184 (1979). “Section 2255 does not offer recourse to all who suffer 

trial errors.” United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). It may 

also “not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). After 

conviction and the exhaustion or waiver of all appeals, the Court is “entitled to presume” that the 

prisoner “stands fairly and finally convicted.” Id. at 164. 

B. Law Applicable to Review of Ineffective-Assistance Claims under § 2255.

Ineffective-assistance-of-counsel (“IAC”) claims can be raised under § 2255. Massaro v. 

United States, 538 U.S. 500, 504 (2003). To establish IAC, “[F]irst, the defendant must show 

that counsel’s performance was deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). This two-part test applies to IAC 

claims arising from guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985). 

To show deficient conduct under Strickland, the burden is on the defendant to show that 

his counsel’s representation fell below an objective standard of reasonableness, by identifying 

acts or omissions of counsel “that are alleged not to have been the result of reasonable 

2Amaya-Martinez initially filed a typed § 2255 motion. ECF No 1. In response to the Court’s directive, he 

completed a form motion for relief under § 2255 with incorporated supporting brief that the Court refers 

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professional judgment.” Strickland, 466 U.S. at 690. A district court then determines whether, 

“in light of all the circumstances, the identified acts or omissions were outside the wide range of 

professionally competent assistance.” Id. There is a strong presumption that the performance of 

counsel falls within this range. United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995). 

Defendant cannot overcome this presumption with after-the-fact accusations that lack supporting 

evidence. See United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993) (noting that although pro 

se § 2255 motions are construed liberally, even under the rule of liberal construction, “mere 

conclusory allegations on a critical issue are insufficient to raise a constitutional issue”); see also

Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (“Absent evidence in the record, a court 

cannot consider a habeas petitioner’s bald assertions on a critical issue in his pro se petition . . . 

to be of probative evidentiary value.”). If counsel provides objectively unreasonable 

representation during the plea process, the defendant must prove prejudice by showing “that 

there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty 

and would have insisted on going to trial.” Hill, 474 U.S. at 59.

To prove prejudice generally, a defendant must establish “a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. This showing “requires a ‘substantial,’ not just ‘conceivable,’ 

likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011). “Surmounting 

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). 

Failure to meet either the deficient-performance or prejudice prongs will defeat a claim of 

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

reviewing court need not address both components if there is an insufficient showing on one. Id. 

to herein as an amended § 2255 motion. He also seeks to further amend as analyzed infra. 

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C. Challenge to Whether he Voluntarily and Knowingly Pleaded Guilty

(Ground One). 

As previously noted, Amaya-Martinez appears to claim that his guilty plea was invalid 

because it was a result of his trial counsel’s failure to (1) have the proceedings against him 

translated; (2) review discovery with him; (3) meet with him more frequently; and (4) adequately 

predict his sentence. Am. Mot. 7, 29, ECF No. 4. These conclusory claims fail for two reasons.

First, they are belied by the record, including Amaya-Martinez’s sworn statements at his rearraignment. Second, Amaya-Martinez cannot demonstrate that he suffered any prejudice.

The record belies any notion that Amaya-Martinez’s guilty plea was anything but 

voluntary and knowing. As to his claim that his lawyer failed to have his proceedings translated, 

Amaya-Martinez was accompanied by a translator at his rearraignment who translated the 

proceeding and the plea documents that he signed. Rearraignment Tr. 4-5. 45-52, 56; ECF CR 

No. 602. Further, Amaya-Martinez testified that he understood the proceedings and that he read 

and understood his plea papers before signing them. Id. at 37. Amaya-Martinez’s sworn 

testimony is entitled to a strong presumption of verity in this collateral proceeding. See 

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). He has done nothing to rebut that presumption 

here.

Similarly, Amaya-Martinez’s claims that his counsel’s failure to review discovery with 

him and visit him more frequently invalidated his guilty plea are also refuted by the record. At 

rearraignment, Amaya-Martinez affirmed that he was satisfied with his counsel’s performance 

and that he did not have “any complaint whatsoever with anything [counsel] has done or failed to 

do” during his representation. Tr. 37-38, CR ECF No. 602.

Moreover, Amaya-Martinez fails to show prejudice. He does not explain how reviewing 

his discovery or further consultation with his counsel would have resulted in him going to trial. 

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While he generally asserts that “but for [counsel’s] ineffective assistance, I would not have pled 

guilty,” (Am. Mot. 7, ECF No. 4), this conclusory claim is insufficient to show ineffectiveassistance. See Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998); Solis v. United States, 

Civ. No. M-12-126, Crim. No. M-08-419-6, No. 2015 WL 13450986 at *4 (S.D. Tex. July 23, 

2015) (holding that movant’s conclusory allegation that he would not have plead guilty but for 

his counsel’s performance was insufficient to meet his burden under Strickland), rep. and rec. 

adopted, 2015 WL 13450987 (S.D. Tex. Sep. 29, 2015). 

Finally, Amaya-Martinez’s assertion that he pleaded guilty based on his lawyer’s promise 

of a 60-month sentence is also belied by the record. Amaya-Martinez’s signed plea agreement 

states that “[t]here have been no guarantees or promises from anyone as to what sentence the 

Court will impose.” Plea Agreement 4, CR ECF No. 244. At his rearraignment hearing, AmayaMartinez assured the Court that he had gone over his plea agreement with his lawyer and 

understood everything in it. Tr. 37, CR ECF No. 602.

Regarding the range of his potential sentence, Amaya-Martinez testified he understood 

that he faced a penalty up to 20 years’ imprisonment and that he should not rely on any statement 

or promise by anyone as to what his sentence would be. Id. at 14-15, 19-20, 46-47. More 

specifically, Amaya-Martinez assured the Court that no one had made any promise or assurances 

to him of any kind to induce him to plead guilty and that he understood that he was facing a 

sentence of up to 20 years’ imprisonment. Id. at 46-47, 51-52. Amaya-Martinez’s sworn 

statements—that he understood the Court would impose a sentence up to 20 years’ imprisonment 

and that no one had made him any promises to induce him to plead guilty—directly refute his 

assertion here that his lawyer promised him that he would receive a five-year sentence in 

exchange for his guilty plea.

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Amaya Martinez’s sworn testimony is entitled to a strong presumption of verity in this 

collateral proceeding. See Blackledge, 431 U.S. at 73-74. He has done nothing to rebut that 

presumption. His self-serving claims are not enough to “produce[] independent indicia of the 

likely merit of [his] allegations.” See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 

1998) (explaining that a petitioner typically meets this standard by providing “one or more 

affidavits from reliable third parties”). The Court finds that Amaya-Martinez’s claim that his 

counsel misled him into pleading guilty is overwhelmingly belied by the record. See United 

States v. Palacios, 928 F.3d 450, 456-57 (5th Cir. 2019); see also, e.g., Fulbright v. United 

States, No. 3:19-cv-222-B, Crim. No. 3:14-cr-215-B, No. 3:19-cv-222-B-BK, 2020 WL 

5995975, at *3 (N.D. Tex. Sept. 15, 2020) (rejecting the movant’s “self-serving, post hoc 

assertions that he would not have pled guilty but for counsel’s then-correct advice about his 

sentencing exposure” because his claims were “insufficient to contradict his testimony at rearraignment”), rep. and rec. adopted, 2020 WL 5993645 (5th Cir. Oct. 9, 2020).

Amaya-Martinez’s claim also fails because he cannot show prejudice. Where, as here, the 

movant entered a guilty plea, he “must show that there is a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and insisted on going to trial.” Hill, 474 U.S. 

at 59. Thus, the prejudice “inquiry ‘focuses on a defendant’s decision making.’” United States v. 

Valdez, 973 F.3d 396, 403 (5th Cir. 2020) (quoting Lee v. United States, 137 S. Ct. 1958, 1966-

67 (2017)). “Courts should not upset a plea solely because of post hoc assertions from a 

defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should 

instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” 

Lee, 137 S. Ct. at 1967. “Factors relevant to determining whether a defendant would have gone 

to trial can also include the risks he would have faced at trial, his representations about his desire 

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to retract his plea, and the district court’s admonishments.” Valdez, 973 F.3d at 403 (internal 

quotation marks and alteration omitted). Applying these settled principles here, Amaya-Martinez 

cannot demonstrate that he suffered prejudice. 

First, the statements he made at his guilty plea hearing undermine his claim that he 

pleaded guilty because of his lawyer’s promise of a five-year sentence. Amaya-Martinez 

acknowledged that he was subjecting himself to a possible 20-year sentence by pleading guilty 

and stated that he understood that any sentencing prediction that he may have received from his 

lawyer was not a promise and that only the Court would decide what sentence to impose. As 

such, Amaya-Martinez’s in-court statements directly refute any assertion that he would not have 

pleaded guilty but for his lawyer’s promise of a lighter sentence.

Second, the record shows that Amaya-Martinez’s decision to plead guilty was likely not 

based on his counsel’s alleged sentencing prediction, but on the strength of the evidence against 

him. Had Amaya-Martinez proceeded to trial, the government would have demonstrated that he 

was a member of a major drug-trafficking organization. PSR ¶¶ 12-20, CR ECF No. 307-1. The 

evidence at trial would have shown that Amaya-Martinez brokered kilogram-quantity 

methamphetamine deals between his supplier and a cooperating source. Id. at ¶¶ 21-22, 27. The 

government would have also likely introduced evidence that Amaya-Martinez personally sold 

the cooperating source a kilogram of methamphetamine and offered to supply the source with 

more. Id. at ¶¶ 26, 28-29. In the face of this overwhelming evidence, Amaya-Martinez cannot 

legitimately show that he would have insisted on a trial had his counsel properly predicted his 

sentence. Lee, 137 S. Ct. at 1966 (“Where a defendant has no plausible chance of an acquittal at 

trial, it is highly likely that he will accept a plea if the Government offers one.”).

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D. Claim of Ineffective Assistance on Appeal (Ground Two). 

Amaya-Martinez seems to assert that his appellate counsel was ineffective for relying on 

a single case to argue that Amaya-Martinez should have received a minor role reduction at 

sentencing. Am. Mot. 12-13, ECF No. 4. To the extent that Amaya-Martinez is raising an 

ineffective-assistance claim, it is conclusory and should be denied.

Court’s judge counsel’s appellate performance under the same two-prong test of 

Strickland. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). Thus, AmayaMartinez must demonstrate that his appellate counsel’s representation was deficient and that the 

deficient performance caused him prejudice. Id. Amaya-Martinez fails to meet this burden, as he 

simply asserts that “[b]ecause of counsel’s ineffectiveness . . . the appeals court affirmed the 

district court’s decision.” Am. Mot. 13, ECF No. 4. Amaya-Martinez does not explain what 

additional arguments his counsel should have made. And he makes no effort to explain how such 

arguments would have resulted in a different outcome on appeal. The mere fact that AmayaMartinez’s counsel was unsuccessful on appeal does not, by itself, constitute ineffectiveassistance. Youngblood v. Maggio, 696 F.2d 407, 410 (5th Cir. 1983); see also Green, 160 F.3d 

at 1042 (“Mere conclusory allegations in support of a claim of ineffective assistance of counsel 

are insufficient to raise a constitutional issue”) (citation omitted). The Court thus finds that the 

claim that counsel was ineffective on appeal must be denied.

IV. MOTION TO FURTHER AMEND § 2255 MOTION

A. Background

As noted, after the government filed its response, Amaya-Martinez filed a motion for 

leave to further amend his existing § 2255 motion to add additional claims. Mot. Am. § 2255

Mot., ECF No. 9. In the brief in support of his motion to amend, Amaya-Martinez alleges new 

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claims of ineffective assistance of counsel, arguing that his counsel ineffectively failed to advise 

him that he would be deported if he pled guilty, failed to advise him of a possible “safety valve” 

reduction, failed to object to the drug quantity attributed to him at sentencing, and failed to 

advocate for an “individualized finding” of the drug quantity attributable to him for sentencing 

purposes. Am. Brief. 1, ECF No. 10. He also argues that the cumulative effect of his counsel’s 

representation warrants relief under § 2255. Id. at 1-2. Because Amaya-Martinez’s new claims 

fail to establish either deficient performance or prejudice, his proposed amended motion would 

be futile, such that, for the reasons explained below, the Court will deny Amaya-Martinez’s 

motion to further amend his § 2255 motion.

B. Standard of Review Applicable to a Motion to Amend.

A motion for relief under § 2255 may be amended in accordance with FED. R. CIV. P. 15. 

United States v. Saenz, 282 F.3d 354, 355 (5th Cir. 2002). Once a responsive pleading has been 

served, a petitioner has the right to amend once within 21 days. FED. R. CIV. P. 15(a)(1)(B). In 

this case, the record reflects that Amaya-Martinez does not have an automatic right to amend 

under Rule 15(a)(1)(B). Here, the government filed a response on June 24, 2022. Resp., ECF No.

8. Amaya-Martinez’s motion to amend was submitted on July 26, 2022, beyond the 21-day 

automatic amendment period. Mot. Am. § 2255 Mot., ECF No. 9. Once that period has passed, 

amendment may be permitted only with the government’s consent or leave of court. FED. R. CIV. 

P. 15(a)(2). While Rule 15(a)(2) provides that a court should freely grant leave to amend when 

justice so requires, leave “is by no means automatic.” Davis v. United States, 961 F.2d 53, 57 

(5th Cir. 1991).

Significantly here, a request to amend a § 2255 motion may be denied when amendment 

would be futile. Id. (stating that in exercising its discretion, the district court may consider a 

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variety of factors, including futility of amendment); see United States v. Gonzalez, 592 F.3d 675, 

681 (5th Cir. 2009) (holding that the proposed amendment would have been time-barred and was 

thus futile); United States v. Liedtke, 107 F. App’x 416, 418 (5th Cir. 2004) (holding that 

because the proposed amendment failed to meet the cause-and-prejudice requirement, it was 

futile, and the district court did not reversibly err by denying leave to amend). Leave to amend 

may be denied on the basis of futility if the proposed amendment would not survive summary 

dismissal. See Rio Grande Royalty Co. v. Energy Transfer Partners, 620 F.3d 465, 468 (5th Cir. 

2010).

C. Proposed Amended Grounds for Relief are Without Merit. 

1. Claim that Counsel Failed to Advise Him of Deportation

Amaya-Martinez claims that his counsel ineffectively failed to advise him that his guilty 

plea subjected him to deportation. Am. Brief 5-6, ECF No. 10. Amaya-Martinez’s in-court

statements belie this claim, and he has failed to show prejudice.

“Counsel’s failure to advise a noncitizen defendant that his guilty plea carries a risk of 

removal implicates the right to effective assistance of counsel.” United States v. Rafiq, No. 20-

11168, 2022 WL 2387348, *2 (5th Cir. July 1, 2022) (citing Padilla v. Kentucky, 559 U.S. 356, 

366-69 (2010)). As such, Strickland’s deficient performance and prejudice analysis applies to a 

movant’s claim that his counsel failed to advise him of the deportation consequences of his 

guilty plea. Id. Where, as here, the movant pleaded guilty, he can only show prejudice “by 

establishing that there is a reasonable probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” Id. at *3 (internal quotation marks 

omitted). Still, “[t]he movant’s allegations that he would not have pled guilty must be 

reasonable.” Id. “In other words, a defendant must demonstrate that going to trial would have 

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given him a reasonable chance of obtaining a more favorable result.” Id. (internal quotation 

marks and alterations omitted).

In assessing prejudice in the context of a movant’s claim that his counsel did not advise 

him of his possible deportation, this Court considers the totality of the circumstances, “including 

[the movant’s] evidence to support his assertion, his likelihood of success at trial, the risks [the 

movant] would have faced at trial, [the movant’s] representations about his desire to retract his 

plea, [the movant’s] connections to the United States, and the district court’s admonishments.” 

United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014). Here, Amaya-Martinez cannot show 

prejudice under the totality of the circumstances. While he may be able to demonstrate that his 

connections to the United States support a finding that he would not have pleaded guilty had he 

known that he was going to be deported, this factor is outweighed by several other factors.

First, Amaya-Martinez’s only evidence supporting his claim that he would not have 

pleaded guilty is his unsworn assertion that he “would likely have insisted on going to trial had 

Counsel only advised him of the deportation consequence of the guilty plea.” Am. Brief 6, ECF 

No. 10. But as noted above, “courts should not upset a plea solely because of . . . assertions from 

a defendant that his attorney’s ineffectiveness is what caused him to plead guilty.” Rafiq, 2022 

WL 2387348 at *3 (internal quotation marks and alteration omitted). Courts should instead “look 

to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Lee, 137 S. 

Ct. at 167.

Here, the contemporaneous evidence refutes Amaya-Martinez’s current assertion that he 

would not have pleaded guilty had he known that he would be deported. During his 

rearraignment, Amaya-Martinez confirmed under oath that he understood that his guilty plea 

could result in his removal from the United States. Tr. 19-20, CR ECF No. 602. Further, AmayaCase 4:22-cv-00235-O Document 17 Filed 02/28/23 Page 12 of 18 PageID 160
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Martinez’s PSR, his signed conditions of release, and directives at sentencing all confirmed that 

he would be deported after serving his sentence. Ord. Terms of Release 1, CR ECF No. 509; 

Sentencing Tr. 17, CR ECF No. 570; PSR ¶ 88, CR ECF No. 307-1. While Amaya-Martinez 

now asserts that he would not have pleaded guilty had he known that he was being deported—a 

claim that he raises for the first time in his proposed amended motion—he was on notice that he 

would be deported well before his sentencing, yet he did not even attempt to withdraw his guilty 

plea. Such contemporaneous evidence weighs against finding prejudice. See Rafiq, 2022 WL 

2387348 at *3 (holding that the movant’s failure to withdraw his guilty plea despite being 

admonished by the district court and the PSR that he faced deportation was contemporaneous 

evidence refuting the movant’s claim that he would not have pled guilty).

Second, Amaya-Martinez has not alleged—much less demonstrated—that he was likely 

to succeed at trial. Indeed, as explained earlier, the overwhelming evidence against AmayaMartinez all but bars him from making this showing. At a trial, the government would have 

demonstrated that he was a member of a major drug-trafficking organization. PSR ¶¶ 12-20, CR 

ECF 307-1. The evidence at trial would have shown that Amaya-Martinez brokered kilogramquantity methamphetamine deals between his supplier and a cooperating source. Id. at ¶¶ 21-22, 

27. The government also would likely have also introduced evidence that Amaya-Martinez 

personally sold the cooperating source a kilogram of methamphetamine and offered to supply the 

source with more. Id. at ¶¶ 26, 28-29. Because Amaya-Martinez has not shown any likelihood of 

succeeding at trial, this factor also weighs against finding prejudice. See Kayode, 777 F.3d at 726 

(holding that the movant’s failure to show that he was likely to succeed at trial weighed against 

finding prejudice).

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Finally, the benefits that Amaya-Martinez received by pleading guilty also weigh against 

finding prejudice. In exchange for his guilty plea, the government agreed not to bring any 

additional charges against Amaya-Martinez based upon his drug-trafficking conduct. Plea 

Agreement 3, CR ECF No. 244. Amaya-Martinez’s guilty plea also enabled him to receive a 

three-level reduction to his total offense level, without which he would have faced an increased 

advisory guidelines range of 235-240 months’ imprisonment. PSR ¶¶ 46-47, CR ECF No. 307-1. 

The fact that Amaya-Martinez would have faced a significantly higher guideline range had he 

gone to trial weighs against finding prejudice. See Rafiq, 2022 WL 2387348 at *4. In sum, the 

totality of the circumstances outweigh the quality of Amaya-Martinez’s connections to the 

United States and, as such, he cannot show that he was prejudiced from his counsel’s purported 

failure to advise him of the deportation consequences of his guilty plea.

2. Claim Counsel Failed to Advise Him of Safety Valve Eligibility

Amaya-Martinez argues that his counsel failed to advise him that he was eligible for a 

two-level “safety valve” reduction. Am. Brief 6-8, ECF No. 10. This claim fails because the 

record contradicts it, and he has not alleged prejudice.

While Amaya-Martinez makes an unsworn allegation that he was not told that he was 

eligible for a safety-valve reduction if he chose to debrief with the government, the record refutes 

this claim. Amaya-Martinez’s PSR, which his lawyer reviewed with him, explicitly states that 

Amaya-Martinez was not eligible for a sentencing reduction under 18 U.S.C. § 3553(f) because 

he had not provided truthful information and evidence to the government concerning his drugtrafficking offense. PSR ¶ 40, CR RCF No. 307-1. Amaya-Martinez was thus aware that he 

could take advantage of the safety-valve reduction by debriefing with the government, but 

simply chose not to do so. Further, Amaya-Martinez has failed to allege any prejudice. Nowhere 

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in his amended motion does he assert that he would have debriefed with the government in order 

to receive a safety-valve reduction. As such, his claim fails.

3. Claim that Counsel Failed to Challenge the Drug Quantity Calculation

Amaya-Martinez next asserts that his counsel failed to challenge the PSR’s drug-quantity 

calculation. Am. Brief 8-10, ECF No. 10. Amaya-Martinez seems to allege that his counsel 

should have objected to the drug-quantity calculation because it was supposedly based on drug 

amounts not reasonably foreseeable to him, but the only drug amount with which he takes issue 

is the five kilograms of methamphetamine that were assigned to him for a transaction to which 

he agreed but did not complete. Id. at 8-9. In other words, Amaya-Martinez asserts that his 

counsel should have objected to the PSR’s inclusion of this agreed-upon transaction in his drugquantity calculation. But such an objection would have been without merit and, as such, AmayaMartinez’s counsel was not ineffective for failing to raise the issue.

“An attorney’s failure to raise a meritless argument . . . cannot form the basis of a 

successful ineffective assistance of counsel claim because the result of the proceeding would not 

have been differed had the attorney raised the issue.” United States v. Kimler, 167 F.3d 889, 893 

(5th Cir. 1999); see also Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir. 1990) (“Counsel is 

not deficient for, and prejudice does not issue from, failure to raise a legally meritless claim.”) 

Where, as here, an offense involves an agreement to sell a controlled substance, the agreed-upon 

quantity of the controlled substance is used to determine the offense level unless “the defendant 

establishes that he did not intend to provide or purchase the agreed-upon amount or was not 

reasonably capable of providing the agreed-upon amount.” See U.S.S.G. § 2D1.1 comment. (n. 

5).

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16

Here, the five kilograms of methamphetamine Amaya-Martinez challenges stems from 

his agreement to provide the cooperating source with five to ten kilograms of methamphetamine. 

PSR ¶ 27, CR ECF No. 307-1. The cooperating source asked Amaya-Martinez to provide the 

source with at least five kilograms of methamphetamine but stated that the source was not 

willing to pay $6,500 per kilogram. Id. Amaya-Martinez informed the cooperating source that he 

would talk with his source of supply about providing the drugs at a lower rate and later told the 

cooperating source that he could provide the source with the methamphetamine for $5,500 per 

kilogram. Id. A few days later, Amaya-Martinez asked the cooperating source if the source 

agreed with the lower price, to which the source said that he would. Id. ¶ 28. Amaya-Martinez 

then told the source that he had methamphetamine ready to distribute. Id. ¶ 29. In sum, AmayaMartinez demonstrated that he intended to provide the cooperating source with at least five 

kilograms of methamphetamine and that he could provide the source with the drugs. Thus, any 

objection to the PSR’s inclusion of the five kilograms in its drug-quantity calculation would have 

been without merit, and counsel was not deficient for failing to raise the issue.

Amaya-Martinez’s claim also fails for a second, independent reason—the inclusion of the 

five kilograms of methamphetamine did not affect his base offense level. The PSR explained 

that, even though Amaya-Martinez was accountable “for attempted or agreed upon 

methamphetamine transactions,” the “inclusion or exclusion” of those transactions did not 

impact his guidelines calculations. Id. ¶ 31. Indeed, whether Amaya-Martinez was accountable 

for only the 1,969.8 grams of “Ice” that he directly brokered and delivered to the CS—which he 

seems to admit was properly attributed to him, (Am. Brief 9, ECF No. 10)—or the total 51,396 

kilograms of converted drug weight, his base offense level would still be a 36. PSR ¶ 32, CR 

ECF No. 307-1; see U.S.S.G. § 2D1.1(c)(2). Because Amaya-Martinez cannot show that he was 

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prejudiced by the PSR’s inclusion of the five kilograms of methamphetamine that he attempted 

to sell, his claim fails for this additional reason. 

4. Claim Counsel Should Have Argued for an “Individualized Finding” as to 

Drug Quantity

Amaya-Martinez also avers that his counsel was ineffective for not objecting to the 

Court’s alleged failure to make an “individualized finding” as to the drug amount attributable to 

him for sentencing purposes. Am. Brief 10-11, ECF No. 10. But his claim is wholly without 

merit. Every gram of methamphetamine for which Amaya-Martinez was held accountable 

resulted from transactions in which he personally participated. PSR ¶¶ 21-32, CR ECF No. 307-

1. As such, counsel had no reason to urge the Court to conduct an “individualized finding,” and 

he was not ineffective for failing to pursue a such an argument. See Kimler, 167 F.3d at 893.

5. Claim that Cumulative Effect of Counsel Error Rendered his Assistance 

Ineffective

Finally, Amaya-Martinez appears to argue that the cumulative effect of his counsel’s 

errors was so great that he was denied the assistance of counsel. Am. Brief 12-13, ECF No. 10. 

In order to establish that the cumulative effect of counsel’s errors deprived him of a fair trial, 

Amaya-Martinez must show that his attorney committed at least one error. See Miller v. Johnson, 

200 F.3d 274, 286 n. 6 (5th Cir. 2000). Based upon this review and analysis, Amaya-Martinez 

cannot demonstrate that his attorney was in any way deficient. As such, there is “nothing to 

cumulate” and this additional claim fails. Id. (quoting Yohey v. Collins, 985 F.3d 222, 229 (5th 

Cir. 1993)).

For all of these reasons, Amaya-Martinez’s motion to amend must be denied as futile. 

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V. CERTIFICATE OF APPEALABILITY

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a 

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Fed. R. App. P. 22 (b). Rule 

11 of the Rules Governing Section 2255 Proceedings now requires the Court to “issue or deny a 

certificate of appealability when it enters a final order adverse to the applicant.” Rules Governing 

Section 2255 Proceedings in the United States District Courts, Rule 11(a) (December 1, 2009). 

This Court may only issue a COA if “the applicant has made a substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by showing 

“that jurists of reason could disagree with the district court’s resolution of his constitutional 

claims or that jurists of reason could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 326 (2003) (citing Slack 

v. McDaniel, 529 U.S. 473, 484 (2000)). 

The Court concludes that Amaya-Martinez has not made a showing that reasonable jurists 

would question this Court’s rulings and, accordingly, DENIES a certificate of appealability for 

the reasons stated in this order. 

VI. CONCLUSION

It is ORDERED that Amaya-Martinez’s motion for leave to amend the § 2255 motion 

(ECF No. 9) is DENIED. 

It is further ORDERED that Amaya-Martinez’s motion and amended motion to vacate 

under 28 U.S.C. § 2255 (with supporting brief) (ECF Nos. 1 and 4) are DENIED. It is further 

ORDERED that a certificate of appealability is DENIED.

SO ORDERED this 28th day of February, 2023.

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