IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

FELIPE RUIZ-BASTIDA, §

§

Petitioner, §

§

v. § 2:22-CV-168-Z-BR

§

UNITED STATES OF AMERICA, §

§

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO DENY RELIEF

Petitioner, Felipe Ruiz-Bastida, filed a motion to vacate, set aside, or correct sentence under 

28 U.S.C. § 2255 by a person in federal custody. Having considered the motion, the response, the 

record, and applicable authorities, the undersigned concludes that relief should be DENIED.

BACKGROUND

The record in the underlying criminal case, No. 2:20-CR-136-Z, reflects the following:

On March 11, 2021, Petitioner was named in a twenty-six count superseding indictment 

charging him in count one with conspiracy to distribute and possess with intent to distribute 500 

grams and more of a mixture and substance containing a detectable amount of methamphetamine 

and 50 grams and more of methamphetamine (actual), and five kilograms and more of a mixture 

and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 846, in count 

sixteen with distribution and possession with intent to distribute 550 grams and more, but less than 

five kilograms, of a mixture and substance containing a detectable amount of cocaine, in violation 

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii), and in count seventeen with possession of firearms 

in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). (CR ECF 207). 

Petitioner and his attorney signed a plea agreement in which Petitioner acknowledged that his 

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sentence could be not less than five years or more than forty years’ imprisonment, that his sentence 

would be imposed by the Court after consideration of the sentencing guidelines, that no one could 

predict what his sentence would be, that he would not be allowed to withdraw his plea if the 

sentence was higher than expected, and that Petitioner waived his right to appeal or challenge his 

sentence except in very limited circumstances. (CR ECF 380). Petitioner and his counsel also 

signed a factual resume setting forth the elements of the offense charged by count sixteen of the 

indictment and the stipulated facts establishing that Petitioner had committed that offense. (CR 

ECF 381). Petitioner entered his plea of guilty to count sixteen of the indictment. (CR ECF 463). 

The undersigned determined that the plea was knowing and voluntary and that the offense charged 

was supported by an independent basis in fact and recommended that the plea be accepted. (CR 

ECF 464). No objections were lodged and the Court adopted the recommendation. (CR ECF 505).

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

Petitioner’s base offense level was 30. (CR ECF 573, ¶ 32). He received a two-level enhancement 

for possession of a dangerous weapon, (id. ¶ 33), and a two-level enhancement for maintaining a 

drug premises (id. ¶ 34). He received a two-level and a one-level reduction for acceptance of 

responsibility. (Id. ¶¶ 40, 41). Based on a total offense level of 31 and a criminal history category 

of I, Petitioner’s guideline imprisonment range was 108 to 135 months. (Id. ¶ 78). Petitioner filed 

objections, (CR ECF 599), and the probation officer prepared an addendum to the PSR. (CR ECF 

636). 

The Court denied Petitioner’s motion for a downward variance and sentenced him to a term 

of imprisonment of 135 months. (CR ECF 712; CR ECF 896). Counts one and seventeen of the 

superseding indictment were dismissed. (Id.) The Court explained to Petitioner his remaining 

rights of appeal, reminding him that pursuant to his plea agreement, he had waived the right to 

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appeal or contest the sentence in a collateral proceeding with just four exceptions, noting that he 

must file his notice of appeal within 14 days of the date judgment was entered and that he would 

have the right to appointed counsel if he chose to appeal. (CR ECF 896 at 50–51). In addition, the 

Court discussed the notice of right to appeal that Petitioner and his counsel had signed, specifically 

noting that it did not constitute a notice of appeal. (Id. at 51–52). Counsel confirmed that he had 

explained Petitioner’s remaining rights of appeal under the plea agreement and that Petitioner 

understood those rights. (Id.) Petitioner did not file a notice of appeal.

GROUND OF THE MOTION

Petitioner asserts one ground in support of his motion, urging that he received ineffective 

assistance of counsel because his counsel failed to adequately and accurately consult with him 

concerning his appellate rights. (ECF 2 at 41; ECF 3). Petitioner avers that he would have appealed 

because he “received a much longer sentence than [he] expected.” (ECF 5, ¶ 4). Specifically, had 

counsel met with him after sentencing and “explained the potential benefits of appealing the 

sentence imposed and my right to do so, I would have instructed him to file an appeal on my 

behalf.” (Id.). 

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 

1 The page reference is to “Page 4 of 14” reflected at the top right portion of the document on the Court’s electronic 

filing system. The typewritten page numbers on the form used by Petitioner are not the actual page numbers of the 

document.

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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 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

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 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 

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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).

ANALYSIS

Failure to pursue an appeal may constitute ineffective assistance of counsel. Roe v. FloresOrtega, 528 U.S. 470, 479–80 (2000); United States v. Pham, 722 F.3d 320, 323 (5th Cir. 2013). 

Counsel only has a constitutional duty to consult with the defendant about an appeal “when there 

is reason to think either (1) that a rational defendant would want to appeal (for example, because 

there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably 

demonstrated to counsel that he was interested in appealing.” Flores-Ortega, 528 U.S. at 480. As 

Petitioner recognizes, (ECF 3 at 5–6), the duty to consult means advising the defendant about the 

advantages and disadvantages of appealing and making a reasonable effort to discover the 

defendant’s wishes. Flores-Ortega, 528 U.S. at 478. If counsel has not consulted, the court must 

determine whether the failure itself constitutes deficient performance. But, if counsel has 

consulted, “the question of deficient performance is easily answered: Counsel performs in a 

professionally unreasonable manner only by failing to follow the defendant’s express instructions 

with respect to an appeal.” Id.

In this case, the record belies Petitioner’s claim that his counsel failed to consult with him 

about an appeal. The plea agreement reflects that Petitioner understood that the sentence imposed 

would be at the Court’s discretion and that Petitioner could not appeal unless the sentence exceeded 

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the statutory maximum punishment or was based on an arithmetic error at sentencing. (Petitioner 

could also challenge the voluntariness of his plea, which he does not do.) (CR ECF 380, ¶ 12). The 

plea agreement further reflects that Petitioner and his counsel had thoroughly reviewed all legal 

and factual aspects of the case including the plea agreement itself and that Petitioner was satisfied 

with the representation of his attorney. (Id. ¶ 13). At rearraignment, Petitioner testified under oath 

that: the plea agreement had been translated for him and he fully understood its terms; he and his 

attorney had signed the plea agreement; no one had made any promise as to what his sentence 

would be; he understood that the district judge would impose the sentence in his sole discretion; 

he and his attorney had discussed the guidelines and how they might apply but no one could predict 

what his sentence would be; and, he understood that under the plea agreement he had given up his 

right to appeal except for the circumstances listed in the agreement. (CR ECF 895). Petitioner and 

his counsel signed a Notice of Right to Appeal, which explained in general the right to appeal. (CR 

ECF 710). That document was specifically discussed at sentencing and the Court reminded 

Petitioner that he had waived his right to appeal except in limited circumstances, but nevertheless 

informed Petitioner that he must file a notice of appeal within 14 days of the date the judgment 

was entered since the notice he signed did not constitute a notice of appeal. Counsel affirmed that 

Petitioner understood his rights to appeal. (CR ECF 896 at 51–52). 

Petitioner’s solemn declarations in open court are entitled to a presumption of verity. 

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Likewise, his plea agreement and Notice of Right 

to Appeal are entitled to that presumption. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 

1985). Petitioner has failed to show that counsel did not consult with him regarding his right to 

appeal. Nor has he shown that he reasonably demonstrated to counsel that he was interested in 

appealing. His conclusory allegations to that effect are insufficient to support his claim. Miller, 

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200 F.3d at 282. 

RECOMMENDATION

For the reasons discussed herein, it is the RECOMMENDATION of the United States 

Magistrate Judge to the United States District Judge that the motion of Petitioner, Felipe RuizBastida, be DENIED.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusion and 

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED September 28, 2023.

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the 

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is 

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See

28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en 

banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS 

Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 

F.2d 275, 276-77 (5th Cir. 1988).

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