RAFAEL 

vs. 

UNITED 

t;.s. DTSTRTCT COLT-.T 

1-;orn hLR'1 DJ\ J P]CT OI 1EXAS 

IN THE UNITED STATES DISTRICT 

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NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

AYALA-SOLORIO, § 

§ 

Movant, § 

§ 

CLERK, US DISTRICT COURT 

§ NO. 4 :22-CV-580-A 

§ (NO. 4: 19-CR-265-A) 

STATES OF AMERICA, § 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Carne on for consideration the motion of Rafael AyalaSolorio, rnovant, 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 government's response, the 

record, including the record in the underlying criminal case, 

No. 4:19-CR-265-A, and applicable authorities, finds that the 

motion must be dismissed as untimely. Movant could not prevail 

on the merits in any event. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On September 11, 2019, rnovant was named in a one-count 

indictment charging him with illegal reentry after deportation, 

Case 4:22-cv-00580-A Document 7 Filed 10/03/22 Page 1 of 11 PageID 23
in violation of 8 U.S.C. § 1326(a) and (b) (1). CR. Doc.' 1. 

Movant initially entered a plea of not guilty. CR Doc. 10. On 

September 27, 2019, he appeared before the court with the intent 

to enter a plea of guilty. CR Doc. 19. Movant and his attorney 

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. 20. Movant testified under oath at re-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 ten years; he understood the 

elements of the offense and he admitted that all of them 

existed; he had read and understood the indictment; 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: 19-

CR-265-A. 

2 

Case 4:22-cv-00580-A Document 7 Filed 10/03/22 Page 2 of 11 PageID 24
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. 41. 

The probation officer prepared the presentence report, 

which reflected that movant's adjusted offense level was 28. CR 

Doc. 23, 1 20. He received a two-level and a one-level reduction 

for acceptance of responsibility. Id. 11 22, 23. Based on a 

criminal history category of VI and a total offense level of 25, 

movant's guideline imprisonment range was 110 to 137 months. 

However, the statutory maximum was ten years, so the guideline 

range became 110 to 120 months. Id. 1 63. Movant filed 

objections, CR Doc. 25, and the probation officer prepared an 

addendum to the PSR. CR Doc. 27. 

On February 7, 2020, the court sentenced movant to a term 

of imprisonment of 120 months. CR Doc. 34. He appealed, CR Doc. 

36, and his sentence was affirmed. CR Docs. 44, 45. On April 19, 

2021, his petition for writ of certiorari was denied. CR Doc. 

46. 

On July 7, 2022, the clerk received for filing from movant 

a document titled "Motion to File an Out-of-Time Brief for 28 

U.S.C. § 2255 Motion to Set Aside, Vacate, or Correct Sentence,• 

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Doc.' 1, which the court interpreted as a motion under§ 2255. 

The court gave the notices required by Castro v. United States, 

540 U.S. 375 (2003). Doc. 4. Movant failed to withdraw or amend 

his motion. Accordingly, the court ordered service and a 

response .. Doc. 5. 

II. 

Grounds of the Motion 

Movant contends that he received ineffective assistance of 

counsel because his attorney informed him that he would receive 

a sentence of 87 months as part of a plea agreement. Doc. 1 at 

2. He also mentions that his counsel failed to object to the use 

of "the prior conviction" and "the fact that any inhancement 

[sic] that would be use [sic] for sentencing purposes." Id. at 

2-3. 

III. 

Applicable Legal Principles 

A. Limitations 

A one-year period of limitation applies to motions under 

§ 2255. The limitation period runs from the latest of: 

(1) the date on which the judgment of conviction 

becomes final; 

(2) the date on which the impediment to making a 

motion created by government action in violation of 

the Constitution or laws of the United States is 

2 The "Doc. " reference is to the number of the item on the docket in this civil action. 

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removed, if the movant was prevented from making a 

motion by such governmental action; 

(3) the date on which the right asserted was initially 

recognized by the Supreme Court, if that right has 

been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral 

review; or 

(4) the date on which the facts supporting the claim 

or claims presented could have been discovered through 

the exercise of due diligence. 

28 U.S.C. § 2255(f). Typically, the time begins to run on the date 

the judgment of conviction becomes final. United States v. Thomas, 

203 F.3d 350, 351 (5th Cir. 2000). A criminal judgment becomes 

final when the time for seeking direct appeal expires or when the 

direct appeals have been exhausted. Griffith v. Kentucky, 479 U.S. 

314, 321 n.6 (1987). 

The doctrine of equitable tolling is applied only in rare and 

exceptional circumstances. In re Wilson, 442 F.3d 872, 875 (5th 

Cir. 2006) Movant must show that he was pursuing his rights 

diligently and that some extraordinary circumstance stood in his 

way and prevented the timely filing of his motion. Holland v. 

Florida, 560 U.S. 631, 649 (2010). Neither excusable neglect nor 

ignorance of the law is sufficient to justify equitable tolling. 

Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002). Movant's 

lack of legal acumen and unfamiliarity with legal process is not 

sufficient justification to toll limitations. United States v. 

Petty, 530 F.3d 361, 366 (5th Cir. 2008); Alexander v. Cockrell, 

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294 F.3d 626, 629 (5th Cir. 2002). Equitable tolling applies to 

limitations of prison library access only when those limitations 

actually prevented the movant from timely filing his habeas 

petition. Krause v. Thaler, 637 F.3d 558, 561 (5th Cir. 2011). 

B. Section 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); 

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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)). 

c. 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 having produced a just 

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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 

Movant's judgment became final on April 19, 2021, when the 

United States Supreme Court denied his petition for writ of 

certiorari. See Clay v. United States, 537 U.S. 522, 525 (2003) 

He had one year from that date in which to file his motion under 

§ 2255. His motion, signed June 28, 2022, is untimely. 

Movant apparently recognized the untimeliness of his 

motion, as he sought leave to file an out-of-time brief. Doc. 1. 

The excuses he offered, however, are not sufficient to extend 

limitations. He mentions being unable to "receive the required 

documents from his previous counsel," but he does not identify 

any particular documents that were needed. Inasmuch as movant 

complains about the sentence he received, he knew immediately at 

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sentencing that he received a greater term than he expected. He 

also mentions "the presence of institutional re-adjustment due 

to the after shocks of COVID-19 Pandemic," but does not identify 

any circumstances that prevented him from timely filing his 

motion. Doc. 1. He is not entitled to equitable tolling. 

Even had the motion been timely filed, movant could not 

prevail. There was not a plea agreement in this case. Any claim 

that movant would receive an 87-month sentence is belied by the 

record. Movant testified under oath at re-arraignment that he 

understood that he was facing a ten-year sentence, that he had 

discussed the sentencing guidelines with his attorney, that he 

understood that no one could predict what his sentence might be, 

that no one had made any promise or threat to induce him to 

plead guilty, and that he was satisfied with his attorney's 

representation. CR Doc. 41. Movant's solemn declarations under 

oath are entitled to a strong presumption of verity. Blackledge 

v. Allison, 431 U.S. 63, 74 (1977). His factual resume is 

likewise entitled to the presumption. United States v. Abreo, 30 

F.3d 29, 32 (5th Cir. 1994); Hobbs v. Blackburn, 752 F.2d 1079, 

1081 (5th Cir. 1985). For a defendant who seeks habeas relief on 

the basis of alleged promises inconsistent with representations 

he made in open court when entering his plea of guilty to 

prevail, he must prove: "(1) the exact terms of the alleged 

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promise, (2) exactly when, where, and by whom the promise was 

made, and (3) the precise identity of the eyewitness to the 

promise." United States v. Cervantes, 132 F.3d 1106, 1110 (5th 

Cir. 1998). To be entitled to an evidentiary hearing, the 

defendant must produce "independent indicia of the likely merit 

of [his] allegations, typically in the form of one or more 

affidavits from reliable third parties." Id. "If, however, the 

defendant's showing is inconsistent with the bulk of [his] 

conduct or otherwise fails to meet [his] burden of proof in the 

light of other evidence in the record, an evidentiary hearing is 

unnecessary.• Id. See also United States v. Fuller, 76 9 F. 2d 

1095, 1099 (5th Cir. 1985). Movant's guilty plea was knowing and 

voluntary and made with sufficient awareness of the relevant 

circumstances and likely consequences. Bradshaw v. Stumpf, 545 

U.S. 175, 183 (2005). Movant has failed to provide any 

independent evidence in support of any of his contentions that 

are at variance with the statements he made, or the answers he 

gave, while under oath at the re-arraignment hearing. 

Movant's allegation regarding the prior conviction and 

enhancement is too vague to present a claim. Miller, 200 F.3d at 

282. Movant's counsel did object that his sentence should be 

limited to a two-year, rather than a ten-year, maximum, but 

recognized that the argument was foreclosed by Almendarez-Torres 

10 

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v. United States, 523 U.S. 224 (1998), and United States v. 

Pineda-Arrellano, 492 F.3d 624 (5th Cir. 2007). CR Doc. 26 at 1. 

The Fifth Circuit rejected this claim on appeal. CR Doc. 45. 

There was no ineffective assistance in this regard. 

V. 

Order 

The court ORDERS that movant's motion be, and is hereby, 

dismissed as untimely. 

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 October 3, 2022. 

// ~ 

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