UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CAROL MONIC BARAJAS,

INSTITUTIONAL ID NO. 09865-479,

Movant, 

v. NO. 4:22-CV-0833-P

NO. 4:19-CR-0367-P-1

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION & ORDER

On January 24, 2020, Carol Monic Barajas pleaded guilty to one 

count of conspiracy to possess with intent to distribute 

methamphetamine in violation of 21 U.S.C. § 846. On May 29, 2020, the 

Court entered judgement finding Barajas guilty and sentencing her to 

400 months’ imprisonment. See ECF No. 317, United States v. Barajas, 

4:19-CR-00367-P-1 (N.D. Tex. May 29, 2020).1

Barajas filed a 28 U.S.C. § 2255 motion challenging her sentence. See

ECF Nos. 1, 2, 5. Proceeding pro se, Barajas claims that her sentence 

violates the Sixth Amendment because her court-appointed attorney, 

Pamela S. Fernandez, provided her ineffective assistance of counsel 

during plea negotiations. For the following reasons, the Court DENIES 

Barajas’s motion.

BACKGROUND

The following facts are undisputed. On October 11, 2019, the 

Government filed a criminal complaint against Barajas and 32 other 

defendants alleging that they conspired to distribute methamphetamine 

and launder money in a drug-trafficking operation. On October 24, 2019, 

1On March 24, 2022, the United States Court of Appeals for the Fifth Circuit 

dismissed Barajas’s direct appeal of the Court’s judgment as frivolous. See ECF Nos. 

381, 382, United States v. Barajas, 4:19-CR-00367-P-1 (N.D. Tex. May 29, 2020).

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Magistrate Judge Jeffrey L. Cureton appointed Pamela S. Fernandez to 

represent Barajas. Following the appointment, the Government 

extended a plea offer that would allow Barajas to plead guilty to an 

information charging her with an offense that carried a statutorymaximum penalty of 20 years’ imprisonment. The proposed plea

agreement included an appellate wavier. Fernandez met with Barajas 

at least five times in early December 2019 to discuss the offer.

On December 11, 2019, the grand jury indicted Barajas on one count 

of conspiracy to possess with intent to distribute 50 grams or more of 

methamphetamine, which carried a statutory sentencing range of ten 

years to life in prison. The same day, U.S. District Judge John McBryde

received a letter from Barajas dated December 6, 2019. In the letter, 

Barajas asked the Court to appoint her a different attorney because 

Fernandez “refuses to fully help [her] understand [her] rights;” “refuses 

to present any evidence that pertains to the charges being filed against 

[her];” “is pressuring [her] to sign to something I don’t fully understand;”

and “refuses to let [her] speak to the U.S. Marshalls or DEA agents.”

Judge McBryde ordered Fernandez to meet with Barajas and file a 

report of their meeting. Fernandez filed a report and, at Barajas’s 

request, a motion to withdraw as her counsel of record. On December 

20, 2019, Judge McBryde held a hearing on the motion and denied it. A

few days later, Judge McBryde granted Barajas’s motion to substitute 

Abe Factor as her counsel of record. On January 24, 2020, Barajas

entered a plea of guilty to the indictment. On May 29, 2020, the 

undersigned sentenced Barajas to 400 months’ imprisonment, 

approximately 33 years.

LEGAL STANDARDS

A. 28 U.S.C. § 2255

There are four grounds upon which a federal prisoner may move to 

vacate, set aside, or correct his sentence: (1) the sentence was imposed 

in violation of 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.” See United States v. Placente, 81 F.3d 555, 

558 (5th Cir. 1996) (citations omitted); see also 28 U.S.C. § 2255. The 

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scope of relief under § 2255 is consistent with that of the writ of habeas 

corpus. Id.

A district court may forgo an evidentiary hearing in deciding a § 2255 

motion “if the motion, files, and records of the case conclusively show 

that the prisoner is entitled to no relief.” United States v. Minor, No. 21-

10200, 2022 WL 11776785, at *4 (5th Cir. 2022) (quoting United States

v. Bartholomew, 974 F.3d 39, 41 (5th Cir. 1992)). If there are no 

“independent indicia of the likely merit” of the petitioner’s allegations, 

a hearing is not required. Id. (citing United States v. Edwards, 422 F.3d 

258, 264 (5th Cir. 2005)).

“[C]ontested fact issues ordinarily may not be decided on affidavits 

alone, unless the affidavits are supported by other evidence in the 

record.” United States v. Robles-Pantoja, 21 F.3d 1109, 1994 WL 171699, 

at *2 (5th Cir. 1994) (quoting United States v. Hughes, 635 F.2d 499, 451 

(5th Cir. 1981)).

When deciding whether an affidavit supporting a § 2255 motion may 

be discredited or given less weight without an evidentiary hearing, the 

Fifth Circuit looks to factors such as whether an affidavit is speculative, 

conclusory, plainly false, or contradicted by the record. See United States 

v. Arledge, 597 F. App’x 757, 759 (5th Cir. 2015) (citing United States v. 

Reed, 719 F.3d 269, 374 (5th Cir. 2013)). Given these considerations, a 

district court need not automatically conduct an evidentiary hearing 

whenever there are “competing affidavits.” Id.

B. Ineffective Assistance of Counsel

To prevail on an ineffective-assistance-of-counsel claim, a defendant 

must show (1) that his counsel’s performance was deficient in that it fell 

below an objective standard of reasonableness; and (2) that the deficient 

performance prejudiced the defense. See Strickland v. Washington, 466 

U.S. 668, 689–94 (1984). Review of counsel’s performance is highly 

deferential, with the presumption being that counsel’s performance was 

reasonable. Id. at 689.

A defendant has a right under the Sixth Amendment to the 

competent advice of counsel during plea negotiations. See Missouri v. 

Frye, 566 U.S. 134, 141 (2012) Defense counsel has the duty to 

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communicate formal offers from the prosecution to accept a plea on 

terms and conditions that may be favorable to the accused. Id. at 145. 

“When considering whether to plead guilty or proceed to trial, a 

defendant should be aware of the relevant circumstances and the likely 

consequences of his decision so that he can make an intelligent choice.” 

United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (quoting United 

States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th Cir. 2012)).

Where counsel’s deficient performance causes a plea offer to lapse or 

be rejected, in order to establish prejudice under Strickland, a defendant 

must satisfy the three-part prejudice test established in Missouri v. 

Frye, 566 U.S. 134 (2012). See United States v. White, 715 F. App’x 437, 

438 (5th Cir. 2018) (citing Frye, 566 U.S. at 147)).

Under Frye, the defendant must demonstrate there is a reasonable 

probability that: (1) he would have accepted the plea offer had he been 

afforded effective assistance of counsel; (2) the plea would have been 

entered without the prosecution canceling it or the trial court’s refusing 

to accept it; and (3) the end result of the criminal process would have 

been more favorable by reason of a plea to a lesser charge or a sentence 

of less prison time. See id; see also Anaya v, Lumpkin, 976 F.3d 545, 554 

(5th Cir. 2020) (citations omitted). The defendant bears the burden to 

supply affirmative proof in support of each factor of the test. See Anaya, 

976 F.3d at 556 (citing United States v. Rivas-Lopez, 678 F.3d 353, 359 

(5th Cir. 2012)); see also United States v. Herrera, 412 F.3d 577, 582 (5th 

Cir. 2005). However, the Fifth Circuit has admittedly never articulated 

how a defendant satisfies this burden. In other words, it has not stated 

whether the defendant is required to produce affirmative evidence in 

support of each factor. See Anaya, 976 F.3d at 556. 

ANALYSIS

Barajas claims that Fernandez’s alleged failure to provide her

accurate and timely advice during plea negotiations caused the 

Government’s pre-indictment plea offer to lapse, which led to her to 

receiving a sentence that is 13 years longer than necessary. See ECF 

Nos. 1, 2. In other words, Barajas claims that, had Fernandez properly 

advised her, she would have accepted the Government’s offer.

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In support of her claim, Barajas offers her declaration made under 

penalty of perjury. See ECF No. 5. In it, Barajas admits that she met 

with Fernandez “several times” in early December 2019, before the offer 

lapsed. She describes their meetings as follows:

In early December 2019, I met several times with my 

appointed attorney, Pamela Fernandez. These meetings 

were brutal, with Fernandez refusing to explain the 

prosecution’s formal plea offer and how that offer 

correlated to my sentence exposure if convicted at trial. 

Rather than answer my questions about the terms and 

consequences of the plea offer, she attempted to coerce me 

into silent compliance by her truly shocking behavior. 

Specifically, on December 4, 2019, when I asked for 

clarification of whether I could talk to the marshals (or 

otherwise cooperate to earn a lesser sentence) she refused 

to discuss the matter, stating that I would have to sign the 

plea offer first. Rather than explain the various terms of 

the plea offer which confused me—the appellate wavier 

and cooperation, amongst other terms—she reiterated this 

position, telling me that we are going to sit here until you 

sign the plea or go back to your jail unit. I told her that I 

needed to understand the offer and my options before I 

signed the plea agreement. Fernandez told me that she 

knew I was guilty, because of my prior federal conviction. 

See ECF No. 5.

In response, Respondent offers Fernandez’s affidavit, which tells a 

different story. See ECF No. 16 at 8–17. Fernandez states that she met 

with Barajas on eight separate occasions and explains as follows:

I fully explained the [pre-indictment] plea agreement to 

Ms. Barajas no less than six (6) times and advised her to 

take the plea offer. I explained that this was the best deal 

that the Assistant U.S. Attorney, Shawn Smith [AUSA 

hereinafter] was offering (I did ask the AUSA if there was 

a better deal to be had to which he stated that was the best 

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deal she would get) and if she did not choose to accept the 

plea then her exposure would be ten (10) years to Life in 

prison. Each time I advised her she told me that she was 

not going to take any kind of plea and she was also not 

going to take her case to trial. I explained that her right to 

a trial was an absolute right and should she continue to 

choose not to take the plea then her absolute right to a trial 

would be upheld and her trial would be had after the ten 

(10) to life case was indicted. I explained what a scheduling 

order is and how that would apply to either a plea or trial. 

She continued to deny the offense and insisted that she did 

not know anything about the offense, even after I went over 

the evidence with her. 

Id. at 9.

Respondent argues that Barajas’s claim has no merit because her 

verified complaint and declaration are conclusory and refuted by the 

record. See ECF Nos. 12, 16. Barajas filed replies, insisting that an 

evidentiary hearing is necessary to assess the credibility her and 

Fernandez’s opposing statements. See ECF Nos. 14, 17.

After carefully reviewing the parties’ pleadings, relevant records, 

and applicable law, the Court agrees with Respondent and concludes 

that an evidentiary hearing is not required to adjudicate Barajas’s 

claims. 

A. Deficient Performance

Under Strickland, the Court must review Fernandez’s performance 

with deference and presume that it was reasonable. Barajas’s factual 

allegations do not overcome that presumption. Although the record 

shows that Barajas was dissatisfied and frustrated with Fernandez’s 

performance and advice, it conclusively negates the facts that Barajas 

relies on to show that it was constitutionally deficient.

Barajas does not dispute that Fernandez communicated the 

Government’s pre-indictment plea offer to her and repeatedly advised 

her to accept it. Rather, Barajas’s primary complaint is that Fernandez

failed to sufficiently explain its terms and warn her that her sentence 

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exposure would drastically increase if she were to delay entry of her 

guilty plea. As shown above, Fernandez’s affidavit contradicts Barjas’s

allegations.

The Court acknowledges that it may not ordinarily resolve disputed 

fact issues on competing affidavits alone. However, the Court concludes 

that it may do so under the circumstances presented here. The record 

evidence clearly supports the critical factual assertions made in 

Fernandez’s affidavit and contradicts those made by Barajas in her 

verified complaint and declaration. 

First, Barajas’s allegations are contradicted by her own prior 

statements that she made at the motion-to-withdraw hearing. When

asked to explain her concerns regarding Fernandez, Barajas stated: 

[Fernandez] expressed a lot of frustration, impatience to 

every question that I would give her. She didn’t seem to 

give me any option, other than to sign that and be facing 

20 years, and it didn’t – she wouldn’t go past that. 

[Fernandez] stated if I took it to trial, she wouldn’t 

have any way to defend me, and I would be facing 30 

to life (emphasis added). She just didn’t seem to have any 

other – any motivation to defend me to the best of her 

ability... 

See ECF No. 355 at 5–6, United States v. Barajas, 4:19-CR-00367-P1 (N.D. Tex. Aug. 10, 2020).

Second, after questioning Barajas, Fernandez, and Danny Burns

(who was appointed to represent Barajas for purposes of the motion-towithdraw hearing only), Judge McBryde denied the motion to withdraw

because he had not “heard anything to indicate that Ms. Fernandez has 

not done what she should do in representing you.” In fact, Judge 

McBryde strongly encouraged Barjas to listen closely to Fernandez’s 

advice because it “is something that would be worth you paying 

attention to.” Id. at 11–13.

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Third, Barajas admitted under oath that she did not have any 

complaints about Fernandez’s performance. The following exchange 

occurred during Barajas’s rearraignment hearing: 

THE COURT: Do you have any complaint whatsoever 

with anything Mr. Factor has done or failed to do, or 

anything the attorney who represented you before Mr. 

Factor did or failed to do? Do you have any complaint 

whatsoever with either attorney or anything either 

attorney has done or failed to do? 

THE DEFENDANT: No, Your Honor.

See ECF No. 357 at 17, United States v. Barajas, 4:19-CR-00367-P-1 

(N.D. Tex. Aug. 12, 2020).

Barajas’s self-serving post hoc assertions made in her verified 

complaint and declaration are conclusory and insufficient to negate the 

contemporaneous statements that she made during the motion-towithdraw and rearraignment hearings. See United States v. 

Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (explaining that sworn 

statements made in open court are entitled to a strong presumption of 

truthfulness); see also United States v. Crain, 877 F.3d 637, 650 (5th Cir. 

2017) (explaining that “self-serving post hoc assertions about how [the 

defendant] would have pled” do not negate the contemporaneous 

comments at the plea hearing).

B. Prejudice

Assuming arguendo that Fernandez’s performance was deficient, 

Barajas fails to show that she was prejudiced by it. As argued by 

Respondent, the Court concludes that the record conclusively negates

that there is a reasonable probability that the pre-indictment plea offer 

would have been entered without the prosecution canceling it or the trial 

court’s refusing to accept it—one of the three Frye factors required to 

demonstrate Strickland prejudice under these circumstances. In the 

motion-to-withdraw hearing, Judge McBryde specifically stated that he 

would not have accepted the proposed pre-indictment plea agreement 

because it contained an appellate waiver:

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I wouldn’t have accepted a plea agreement with a waiver of 

appeal, and the government knows that. I don’t know why 

they tell lawyers that it would be in a plea agreement 

because I simply don’t accept the plea agreement with a 

waiver of appeal. 

See ECF No. 355 at 8, United States v. Barajas, 4:19-CR-00367-P-1 

(N.D. Tex. Aug. 10, 2020). Barajas does not supply any affirmative proof

to suggest that the Government was willing to negotiate the terms of the 

proposed plea agreement or remove the appellate waiver from it.

CONCLUSION 

For the foregoing reasons and those stated in Respondent’s response

and supplemental response (ECF Nos. 12, 16), the Court concludes that 

Barajas failed to demonstrate that she received ineffective assistance of 

counsel under Strickland. She is, therefore, not entitled to relief under 

§ 2255, and her motion is DENIED.

For the same reasons, the Court concludes that reasonable jurists 

could not question the Court’s resolution of Barajas’s claims. As a result, 

the Court DENIES a certificate of appealability. See 28 U.S.C. § 

2253(c)(1)(B); see also FED. R. APP. P. 22(b)(1). 

SO ORDERED on this 26th day of June 2023.

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