United States Court of Appeals 

for the Fifth Circuit 

No. 20-50830 

United States of America, 

Plaintiff—Appellee, 

versus

Raymond R. Valas, III, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 5:13-CR-806 

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

This is the second time Raymond R. Valas, III has challenged his 

conviction before this court. On direct appeal in 2016, we affirmed his 

conviction for “engaging in a commercial sex act with a minor in violation of 

18 U.S.C. § 1591.” United States v. Valas, 822 F.3d 228, 234 (5th Cir. 2016). 

Now seeking habeas relief, he alleges that prosecutors unconstitutionally 

suppressed a document that would have aided his case and that he received 

ineffective assistance of counsel during his trial and his direct appeal. Valas 

fails to demonstrate that any of his habeas claims merit relief. Thus, we 

affirm. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 8, 2022 

Lyle W. Cayce 

Clerk 

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No. 20-50830 

2 

I. 

Valas is a former lieutenant colonel in the United States Army. Id. at 

235. On August 26, 2013, he went with members of his New Hampshire 

National Guard unit to San Antonio. They were in San Antonio to review a 

military exercise they had completed in El Salvador. Id. While there, Valas 

stayed at the Hilton Hotel. Id. That night and the following night, after 

obtaining her contact information from an online prostitution advertisement, 

Valas encountered TJ, a fifteen-year-old runaway turned prostitute, in his 

hotel room. Id. Valas maintains that he briefly attempted to interview TJ as 

part of a project on human trafficking both nights. Id. TJ testified that Valas 

summoned her to the hotel to have sex with her. Id. 

The jury convicted Valas of violating 18 U.S.C. § 1591, which 

criminalizes participating in the sex trafficking of children, including by 

causing a child “to engage in a commercial sex act.” Id. at 234-35. Valas 

appealed the conviction and raised a host of challenges to the 

constitutionality of his trial. Id. A panel of this court rejected his arguments 

and affirmed his conviction. Id. at 248. 

Just over a year later, in August 2017, Valas filed a habeas corpus 

petition under 28 U.S.C. § 2255 that was also styled as a motion for a new 

trial under Federal Rule of Criminal Procedure 33. Valas alleged various 

violations of his Sixth Amendment rights. First, he asserted the prosecution 

unconstitutionally suppressed a statement TJ gave to the Federal Bureau of 

Investigation (FBI) that would have aided his case. This hypothetical 

assertion of error—Valas essentially guessed that there must have been an 

unproduced statement based on other evidence—proved true. Specifically, 

the Government conceded in response to Valas’s petition that it had failed to 

disclose an agent-created FD-302 summary of a March 2014 interview the 

FBI conducted with TJ. 

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Next, he averred that the prosecution had impermissibly vouched for 

TJ’s credibility before the jury and that his trial counsel should have objected 

to those statements. He also argued that counsel was ineffective because he 

did not adequately cross-examine and impeach TJ’s credibility using her 

journal and cell phone records. 

Finally, Valas contended that his direct-appeal counsel should have 

raised the district court’s failure to give a modified unanimity instruction as 

an issue on appeal. At trial, the prosecution adduced testimony that Valas 

had sex with TJ on two nights: August 26, 2013, and either late on August 27 

or very early on August 28, 2013. By contrast, the indictment charged 

[t]hat on or about the 26th day of August, 2013, . . . the 

Defendant, Raymond Valas, did knowingly . . . cause T.J. to 

engage in a commercial sex act, knowing that T.J. had not 

attained the age of 18 years, recklessly disregarding that T.J. 

had not attained the age of 18 years, and having had a 

reasonable opportunity to observe T.J., in violations of Title 18, 

United States Code, Sections, 1591(a) and 1591(b)(2). 

Valas argued that the contrast between the prosecution’s evidence and the 

indictment created a duplicity1

 problem requiring a modified unanimity jury 

instruction. Without a proper instruction, he contended, it was likely that 

some jurors would conclude that he had violated the law on August 26, 

whereas others would conclude that he did so on August 27/28, rather than 

unanimously agreeing to convict Valas for the same act on the same day. 

Valas filed a motion for discovery in relation to his suppression claim. 

The district court denied the motion, finding that while the prosecution had 

suppressed the FD-302 interview summary, its contents were ultimately not 

1

 Duplicity is “the joining in a single count of two or more distinct and separate 

offenses.” United States v. Robin, 693 F.2d 376, 378 (5th Cir. 1982). 

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material to Valas’s defense. But the court scheduled an evidentiary hearing 

on Valas’s claim of ineffective assistance of trial counsel. After that hearing, 

the court denied Valas’s Section 2255 petition and Rule 33 motion in two 

lengthy orders, finding that Valas had failed to establish any violation of his 

Sixth Amendment rights. Valas now appeals the denial of his Section 2255 

petition.2

 

II. 

“When evaluating the denial of a Section 2255 motion, we review the 

district court’s factual findings for clear error and its legal conclusions de 

novo.” United States v. Scott, 11 F.4th 364, 368 (5th Cir. 2021) (citing United 

States v. Phea, 953 F.3d 838, 841 (5th Cir. 2020)). We address each of the 

issues Valas raises in turn. 

A. 

Valas asserts that the prosecution violated his Sixth Amendment 

rights to a fair trial under Brady v. Maryland, 373 U.S. 83 (1963), by 

suppressing evidence favorable to his case. We review this issue de novo with 

deference to the district court’s underlying factual findings. United States v. 

Bolton, 908 F.3d 75, 90 (5th Cir. 2018) (quoting United States v. Swenson, 894 

F.3d 677, 683 (5th Cir. 2018)). To prove a claim under Brady, a petitioner 

“must show: (1) the evidence at issue was favorable to the accused, either 

because it was exculpatory or impeaching; (2) the evidence was suppressed 

by the prosecution; and (3) the evidence was material.” Reeder v. Vannoy, 

2

 Valas’s briefing on appeal makes no reference to Rule 33 and each of his 

arguments is couched in favor of “habeas” relief. To the extent Valas properly moved 

under Rule 33 in the district court for a new trial, any potential arguments related to that 

motion are forfeited because he has not briefed them. Roy v. City of Monroe, 950 F.3d 245, 

251 (5th Cir. 2020) (quoting Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 

(5th Cir. 2004)). 

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978 F.3d 272, 277 (5th Cir. 2020) (internal quotation marks omitted) 

(quoting United States v. Glenn, 935 F.3d 313, 319 (5th Cir. 2019)); see also 

Youngblood v. West Virginia, 547 U.S. 867, 868–70 (2006) (per curiam) 

(applying Brady to evidence known by government investigators but allegedly 

unknown by prosecutors); Giglio v. United States, 405 U.S. 150, 154–55 (1972) 

(applying Brady to impeachment evidence). As to the third element, 

“[s]uppressed evidence is material ‘if there is a reasonable probability that, 

had the evidence been disclosed to the defense, the result of the proceeding 

would have been different.’” Reeder, 978 F.3d at 277 (emphasis added) 

(internal quotation marks omitted) (quoting Murphy v. Davis, 901 F.3d 578, 

597 (5th Cir. 2018)). “Different” means that “the suppressed evidence 

‘undermines confidence in the outcome of the trial.’” Id. (internal quotation 

marks omitted) (quoting Turner v. United States, 137 S. Ct. 1885, 1893 

(2017)). 

At issue is an FD-302 summary of a March 2014 interview of TJ 

conducted by an FBI agent. The FD-302 is a form used by the FBI to 

memorialize conversations between an agent and an interviewee. Basically, 

“302s” capture the interviewing agent’s notes of a witness interview, and 

they are routinely part of criminal investigations conducted by the agency. 

So much so that, as noted above, Valas’s habeas counsel was able correctly 

to guess that a 302 was missing in this case, forcing the Government to 

concede that it “inadvertently” failed to produce the document before trial. 

The parties thus agree that the 302 was suppressed by the prosecution; they 

contest the other two elements of the Brady test—whether the evidence was 

favorable to Valas and material to the outcome of his trial. 

The district court denied Valas’s claim without addressing whether 

the evidence was favorable to Valas. Assuming it was, the court found that 

Valas had failed to demonstrate that the 302 was material. Much of the 

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parties’ briefing on appeal thus grapples over the third element. Our analysis 

will focus there as well. 

But before we proceed, we emphasize that the Government’s 

concession that it suppressed the 302 is correct. The Government’s only 

justification for its lapse, that the failure to produce the 302 to Valas was 

“inadvertent,” is troubling. It is difficult to grasp how a document as routine 

as a 302 would be overlooked, particularly in this instance. TJ was the crucial 

witness for the prosecution, the only one who actually accused Valas of 

criminal activity. And the agent who prepared this 302 also testified, so 

defense counsel was deprived of the opportunity to use the document in 

cross-examining two witnesses, not just one. We note that, unfortunately, 

this is not the first time something like this has happened, e.g., United States 

v. Perea, 625 F. Supp. 2d 327 (W.D. Tex. 2009). We admonish the 

Government to endeavor to make it the last. 

Nonetheless, as the district court concluded, Valas’s claimed Brady 

violation falters because he fails to show how the 302 is material. The 302 

itself is fairly short. It consists of ten paragraphs. The first identifies TJ and 

the location of the interview. Four through ten recount that the investigators 

showed TJ photographs and TJ identified individuals from them. Only the 

second and third paragraphs relate to Valas. The second paragraph indicates 

that TJ identified Valas from a photo array. The third encapsulates details 

about her encounter with Valas: 

[TJ] remembered that VALAS was very surprised when [TJ] 

showed up to his room because VALAS thought that the 

photos on the advertisement were “fake.” VALAS took [TJ]’s 

clothes off slowly and had unprotected sex. VALAS told [TJ] 

he was in San Antonio on business and that he was flying back 

to New York in two days. [TJ] told VALAS that she was 18 

because that is what she was instructed to do by [her pimp]. 

VALAS did not ask her to have unprotected sex and although 

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[TJ] had a condom with her, she did not ask him to put it on. 

[TJ] did not remember if VALAS paid her $130.00 or $150.00. 

VALAS called her for a second date the next day or two days 

later. During the second date they used a condom and VALAS 

paid her the same amount as the first time. VALAS told [TJ] 

that he was in love with her and wanted her to go with him. [TJ] 

did not remember if VALAS had any tattoos, however she 

remembered that “when he smiled his dimple would pop.” 

Valas asserts that the 302 is material because of its impeachment value 

stemming from the differences between its summation of TJ’s statement and 

her trial testimony. At trial, TJ stated that the first night they met, neither 

she nor Valas had a condom, he struggled with flaccidity, and ultimately the 

two engaged in oral sex and non-penetrative anal sex.3

 She also testified that 

Valas paid her $150 for that night. 

This testimony admittedly seems to differ from the 302’s account of 

TJ’s statement to the FBI, but the differences are in magnitude of detail 

rather than substance. At best, the interview notes could have been used to 

force TJ to explain how the sexual actions she described at trial fit under the 

heading of “unprotected sex” used in the 302 and whether TJ or Valas 

actually had condoms in the hotel room. These differences are hardly the 

grand “gotchas” Valas makes them out to be. To the contrary, none of the 

variances are likely to have dented the jury’s assessment of TJ’s credibility. 

There is perhaps a closer question regarding the use of the 302 in 

cross-examining the FBI agent who created it. As we discuss infra in Part 

II.B.2., counsel’s strategy in cross-examining TJ was fraught with risk, e.g., 

3

 Valas also points to purported inconsistencies between the 302 summary and TJ’s 

journal entries. Her journal generally mirrors her trial testimony but additionally recounts 

that TJ and Valas engaged in “breast sex.” Valas asserts that his counsel should have been 

able to exploit this discrepancy as well. For the reasons discussed above the line, this detail 

likewise fails to move the needle in Valas’s favor. 

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that she might effectively explain inconsistencies or come across as more 

sympathetic, irrespective of whether counsel used the 302. There may have 

been some upside, and less potential downside, in using the 302 to interrogate 

the agent. However, if the 302 would have had only marginal impeachment 

value used with TJ directly, it may have been even more attenuated to try to 

amplify these alleged inconsistencies through another witness. In any event, 

Valas does not offer any argument regarding the agent’s testimony, so we 

decline to evaluate this issue further. The impeachment value of the 302 is 

insufficient to undermine confidence in the trial and the jury’s verdict, such 

that the 302 is not material, and Valas’s Brady claim therefore fails. Reeder, 

978 F.3d at 277.4

B. 

We next turn to Valas’s ineffective assistance of counsel claims. 

“[T]he Sixth Amendment entitles a criminal defendant to reasonable, but not 

perfect, representation of counsel.” United States v. Valdez, 973 F.3d 396, 404 

(5th Cir. 2020). To succeed on an ineffective assistance of counsel claim, a 

petitioner must establish “that (1) his ‘counsel’s performance fell below an 

objective standard of reasonableness,’ and (2) that his counsel’s deficient 

performance caused him prejudice.” Id. at 402 (quoting United States v. 

Grammas, 376 F.3d 433, 436 (5th Cir. 2004)); see Strickland v. Washington, 

466 U.S. 668, 687 (1984). A petitioner demonstrates prejudice if he shows 

4

 As a final note, it is also debatable whether the 302 is actually beneficial to Valas 

under the first Brady element. As noted above, its impeachment value is marginal. While 

the 302 differs from TJ’s testimony in some ways, it also provides a direct statement about 

Valas’s dimple that, if corroborated, could have increased TJ’s credibility, not diminished 

it. At the end of the day, we need not further delve into this issue because, assuming the 

302 would have benefitted Valas and, as the Government concedes, it was suppressed, it 

was not material in terms of its likely effect on the trial or the verdict. 

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“that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Valdez, 973 

F.3d at 402 (internal quotation marks omitted) (quoting United States v. Bass, 

310 F.3d 321, 325 (5th Cir. 2002)). Finally, “judicial scrutiny of counsel’s 

performance must be ‘highly deferential’ because ‘[i]t is all too tempting for 

a defendant to second-guess counsel’s assistance after . . . [an] adverse 

sentence, and it is all too easy for a court . . . to conclude that a particular act 

or omission of counsel was unreasonable.’” Id. at 403–04 (quoting 

Strickland, 466 U.S. at 689). 

Valas makes three arguments regarding ineffective assistance of 

counsel. He contends that his direct-appeal counsel failed to press the 

potential lack of jury unanimity due to the district court’s failure to instruct 

the jury adequately; he argues that his trial counsel did not effectively crossexamine TJ; and, finally, he asserts that his trial counsel also failed to object 

to the prosecutor’s improper vouching for TJ’s credibility during closing. 

1. 

“Appellate ‘[c]ounsel need not raise every nonfrivolous ground of 

appeal, but should instead present solid, meritorious arguments based on 

directly controlling precedent.’” Moore v. Vannoy, 968 F.3d 482, 489 (5th 

Cir. 2020) (quoting Ries v. Quarterman, 522 F.3d 517, 531–32 (5th Cir. 

2008)). When reviewing the effectiveness of appellate counsel, the relevant 

question is whether the argument the petitioner asserts should have been 

made was “sufficiently meritorious such that . . . counsel should have raised 

it on appeal.” United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). 

“Declining to raise a claim on appeal, therefore, is not deficient performance 

unless that claim was plainly stronger than those actually presented to the 

appellate court.” Davila v. Davis, 137 S. Ct. 2058, 2067 (2017) (emphasis 

added) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)). 

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Valas argues that there was a genuine risk that the jury became 

confused and failed to reach unanimity in its verdict because some believed 

he committed the charged offense on one day (August 26) through one set of 

actions, while other jurors believed he committed the charged offense on 

another day (August 27/28) through different actions. Given this risk, Valas 

asserts his appellate counsel ought to have raised the district court’s failure 

to give an instruction to the jury clarifying that they all had to agree that he 

committed the same act on the same day. The district court rejected this 

habeas claim because it found (1) the unanimity argument had been waived 

such that appellate counsel would have needed to prove plain error on appeal 

and (2) the argument was in any event not meritorious. 

Scrutinizing the record, Valas failed to preserve his objection to the 

district court’s failure to provide an additional instruction clarifying or 

modifying the standard unanimity instruction. Federal Rule of Criminal 

Procedure 30(d) requires that “[a] party who objects to any portion of the 

instructions or to a failure to give a requested instruction must inform the 

court of the specific objection and the grounds for the objection before the 

jury retires to deliberate.” Failing to do so means an argument related to the 

jury instructions is not preserved and can be reviewed only for plain error. 

United States v. Spalding, 894 F.3d 173, 187 (5th Cir. 2018) (citing United 

States v. Gibson, 875 F.3d 179, 195 (5th Cir. 2017); Fed. R. Crim. P. 30(d)). 

To show that his trial counsel preserved the point, Valas offers a 

somewhat ambiguous statement by counsel during the charge conference: 

[K]eep in mind that the date charged in the indictment is 

Monday, the 2[6]th. Tuesday, the 2[7]th, is not charged in the 

indictment. And in terms of this charge conference, I’m very 

concerned about confusion, and I’m very concerned about the 

jury making a determination where several think that he did it 

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on Tuesday, several think that he did it on Monday, and that 

that’s unacceptable under our law. And I object to that. 

I’m not exactly sure how the Court needs to fix it. I think it’s a 

problem with the way that it was indicted. But nonetheless—

like, for instance, similar acts may—what are the similar acts? 

The similar acts – the only similar act is Tuesday, the 27th. But 

this jury needs to be told that they cannot convict him for what 

happened on—or what they believe—if they find beyond a 

reasonable doubt that anything happened, it could only be used 

to determine whether the event took place. 

While counsel raised an objection that jury “confusion” could lead it to 

convict for different offenses on different days, counsel did not

“object[] . . . to a failure to give a requested instruction.” Fed. R. Crim. 

P. 30(d). Instead, counsel stated that it was not clear “how the Court 

need[ed] to fix it,” and pivoted to “the way that [the case] was indicted.” 

This is a rather tenuous basis on which to argue that counsel “inform[ed] the 

court of the specific objection” being raised regarding a failure to instruct the 

jury. Id. Accordingly, appellate review of this issue would have been framed 

by plain error analysis.5

 We thus view Valas’s current ineffective assistance 

claim mindful of that exacting standard. 

Valas asserts that United States v. Holley, 942 F.2d 916 (5th Cir. 1991), 

demonstrates the merits of his unanimity argument. In Holley, this court 

reversed a conviction for perjury, concluding both that the indictment in the 

5

 To prove plain error, an appellant must demonstrate (1) “an error; (2) the error 

must be clear or obvious . . . (3) the error must have affected the appellant’s substantial 

rights . . . ; and (4) the court must decide in its discretion to correct the error.” United 

States v. McGavitt, 28 F.4th 571, 575 (5th Cir. 2022) (quoting United States v. McClaren, 13 

F.4th 386, 413 (5th Cir. 2021)). Additionally, as Valas did not propose an instruction, the 

plain error consideration would have been limited to whether the district court’s “charge, 

as a whole, [was] a correct statement of the law clearly instruct[ing] the jurors.” Spalding, 

894 F.3d at 187 (quoting United States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007)). 

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case was duplicitous and the instructions given to the jury did not cure that 

problem. 942 F.2d at 928-29. But Holley is distinguishable because, inter 

alia, unlike in that case, Valas was charged with a single offense: causing TJ 

“to engage in a commercial sex act” “on or about the 26th day of August, 

2013.” While the Government introduced evidence that Valas had sex with 

TJ on both August 26, and either late on August 27 or early on August 28, 

“[a]n indictment’s allegations, and not the evidence adduced at trial, control 

whether the indictment is duplicitous . . . .” United States v. Mauskar, 557 

F.3d 219, 225 (5th Cir. 2009); see United States v. Sila, 978 F.3d 264, 269 (5th 

Cir. 2020) (similarly finding that duplicity is a question of indictments, not 

of evidence adduced at trial).6

 

Valas also argues that a footnote in this court’s prior opinion deciding 

his direct appeal shows the value of this argument. There, the court noted 

that “the indictment and the Government’s ‘on or about’ argument might 

have raised a duplicity concern,” but declined to address the issue further 

because Valas had forfeited it. Valas, 822 F.3d at 237 n.2. Far from 

establishing the merit of this issue, though, the Valas footnote merely 

identified it as a potential concern. 

Regardless, Valas’s present endeavor is not to show that the 

unanimity argument was worthwhile or meritorious, but that it “was plainly 

stronger” than the seven other issues raised in his direct appeal. Davila, 137 

6

 Further, even though the Government introduced evidence of Valas’s conduct 

on both August 26 and August 27/28, the district court expressly instructed the jury that 

“to return a guilty verdict for Count 1, all of you must agree that the same way of 

committing the offense . . . has been proved beyond a reasonable doubt.” Cf. Holley, 942 

F.2d at 929. Even assuming some residual concern about unanimity, assessing whether the 

district court’s charge, as a whole, was a correct statement of the law, Spalding, 894 F.3d 

at 187, we do not discern error that is “‘clear’ or, equivalently, ‘obvious,’” United States 

v. Olano, 507 U.S. 725, 734 (1993) (quoting United States v. Young, 470 U.S. 1, 16, n.14 

(1985)). 

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S. Ct. at 2067 (citing Smith, 528 U.S. at 288). His briefing does not address 

this question, such that this claim fails for that threshold reason alone. 

Beyond that, looking through the lens of plain error, we do not see that 

Valas’s argument is so meritorious that it would have been “plainly 

stronger” than the other issues counsel actually raised on direct appeal. 

Accordingly, his claim of ineffective assistance of appellate counsel fails. 

2. 

Valas next asserts that his trial counsel was ineffective because 

counsel did not adequately cross-examine TJ. “Because decisions regarding 

cross-examination are strategic, they usually ‘will not support an ineffective 

assistance claim.’” United States v. Bernard, 762 F.3d 467, 472 (5th Cir. 

2014) (quoting Dunam v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)). 

Valas’s arguments here boil down to two contentions. First, he 

contends that his counsel should have confronted TJ with the FBI’s 302 

interview summary7

 and her journal entries in order to discredit her regarding 

the specifics of the two encounters with Valas. Second, Valas maintains that 

counsel should have confronted TJ with her phone records to demonstrate 

that, because she either texted or called people for much of the time she was 

supposed to be with Valas, she could not have had sex with him. 

Regarding his first argument, Valas posits four inconsistencies 

between TJ’s testimony and her statements reflected in the 302 summary 

and her journal: whether Valas used a condom; whether the sex acts on 

August 26 were “unprotected sex” as her initial statement said, or oral sex, 

non-penetrative anal sex, and “breast sex” as her journal stated; Valas’s 

7

 Valas reasons that, had the 302 not been suppressed, it would have been useful in 

cross-examining TJ, such that his counsel’s inability to use it during cross rendered 

counsel’s representation ineffective. 

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inability initially to get an erection; and the payment amount. Valas argues 

that forcing TJ to explain these inconsistencies would have undoubtedly 

discredited her in the eyes of the jury. As discussed supra in Part I.A., this is 

unlikely for several reasons. 

The 302 is not overly detailed (and it was prepared not by TJ, but by 

the interviewing agent). Its description of their first encounter states that 

Valas removed TJ’s clothing and “had unprotected sex” with her. 

Conceivably, the actions TJ described at trial could fit under the heading of 

“unprotected sex.” And when comparing the relatively short 302 summary 

with TJ’s trial testimony, it is evident the other inconsistencies could easily 

be explained away as well. TJ’s more detailed journal is essentially consistent 

with TJ’s trial testimony. It begins with her running away from home, 

recounts how she met the pimp who would market her, details several liaisons 

with other individuals, and provides significant detail regarding her 

encounters with Valas. The only alleged discrepancy Valas raises based on 

the journal centers on whether he used a condom during the encounters. But 

as with the 302’s purported discrepancies, had TJ been confronted on this 

point, she could have explained it fairly easily. In any event, it is hardly a 

contradiction that would have undermined the trial’s outcome. 

And counsel did not exactly leave TJ unscathed during cross- and 

recross-examination, which spanned roughly 600 transcript lines during trial. 

Valas acknowledges that counsel extensively cross-examined TJ, adducing 

testimony from TJ that she was on probation; smoked marijuana; used 

alcohol during her weeklong stint as a prostitute; stole a gift card from her 

mother before she ran away; had difficulty remembering places; listed her age 

on Backpage.com as nineteen, not fifteen; and texted and called people 

constantly. The additional inconsistencies that Valas now proffers would 

have been unlikely to discredit TJ before the jury any more than the 

testimony actually elicited did. Indeed, giving TJ a chance to explain might 

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have harmed Valas’s defense and made the fifteen-year-old witness more 

sympathetic. As a matter of strategy, Valas’s trial counsel did not act 

unreasonably by refraining from confronting TJ with her journal statements. 

Valdez, 973 F.3d at 404 (“[T]he Sixth Amendment entitles a criminal 

defendant to reasonable, but not perfect, representation of counsel.”). 

Turning to Valas’s assertion regarding TJ’s cell phone records, Valas 

asserts that he has identified only two gaps of time, one three minutes long 

and the other six, between 9:00 and 9:30 p.m. on August 26 when TJ was not 

texting or calling someone. He asserts that had his counsel raised this on 

cross-examination, TJ’s cell phone use would have contradicted her 

testimony that she performed sex acts with Valas between 9:00 and 9:30, 

significantly damaging her credibility. As with her journal entries, however, 

confronting TJ with the records may have allowed her to explain them, as her 

cell phone use is not necessarily inconsistent with her testimony that Valas 

and she engaged in two to three discrete sex acts on August 26. 

In like manner, Valas goes to great lengths to show that TJ was using 

her cell phone almost constantly from 1:00 to 1:30 a.m. on August 28. Valas 

argues that TJ should have been confronted with the phone’s activity logs 

because she testified that she and Valas had sex between 1:00 to 1:30 that 

night. But TJ’s testimony was that she arrived at Valas’s hotel room around

1:00 a.m. She testified to an approximation of the events that occurred the 

night of August 27/28. Additionally, the times immediately before 1:00 and 

after 1:30 a.m. show gaps in phone activity. As with the prior night’s records, 

asking TJ about the phone log for August 28 may well have backfired. 

Rather, the record bears out that Valas’s counsel made a strategic 

decision not to ask TJ about the details in her phone records. Instead, counsel 

walked through the cell phone log with the jury in his closing argument, 

making the exact argument that Valas asserts should have been explored in 

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cross-examination. Thus, contrary to Valas’s current depiction, his trial 

counsel did not wholly abandon TJ’s cell phone data. Instead, counsel 

strategically deployed the records, without any potential explanation from TJ 

regarding the alleged discrepancies, as one of the last things the jury was 

presented before it deliberated. 

Moreover, Valas’s counsel also impeached TJ’s credibility in other 

ways. Valas’s counsel elicited damaging facts about TJ from other witnesses, 

and introduced evidence that undermined TJ’s reputation for virtue and 

veracity. See Russell v. Collins, 944 F.2d 202, 204–06 (5th Cir. 1991) (noting 

that eliciting negative testimony from other witnesses was a reasonable 

strategy for impugning a witness’s credibility). Against this record, and 

particularly given the presumption accorded cross-examination strategy in 

assessing effectiveness of counsel, Bernard, 762 F.3d at 472, Valas’s trial 

counsel’s efforts to impugn a volatile fifteen-year-old witness’s credibility 

“[fell] within the wide range of reasonable professional assistance.” 

Strickland, 466 U.S. at 689. In other words, counsel’s cross-examination of 

TJ was not “so ill chosen that it permeate[d] the entire trial with obvious 

unfairness.” Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006) (internal 

quotation marks omitted) (quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th 

Cir. 2004)). Accordingly, this issue lacks merit. 

3. 

Valas’s final ineffective assistance of counsel claim relates to the 

prosecutor’s closing argument. Valas asserts that his trial counsel was 

ineffective because counsel did not object to the prosecutor’s improper 

vouching for TJ’s honesty. 

Generally, “[a] prosecutor may argue fair inferences from the 

evidence that a witness has no motive to lie, but cannot express a personal 

opinion on the credibility of witnesses.” United States v. Gracia, 522 F.3d 

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597, 601 (5th Cir. 2008) (citing United States v. Gallardo-Trapero, 185 F.3d 

307, 320 (5th Cir. 1999)). This court’s test “for improper vouching for the 

credibility of a witness is ‘whether the prosecutor’s expression might 

reasonably lead the jury to believe that there is other evidence, unknown or 

unavailable to the jury, on which the prosecutor was convinced of the 

accused’s guilt.’” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010) 

(quoting United States v. Ellis, 547 F.2d 863, 869 (5th Cir. 1977)). Of course, 

“[o]ften, the decision as to whether or not to object to particular statements 

made in closing argument is a matter of tactics. Since an objection may tend 

to emphasize a particular remark to an otherwise oblivious jury, the effect of 

[an] objection may be more prejudicial than the original remarks[.]” Walker 

v. United States, 433 F.2d 306, 307 (5th Cir. 1970) (citing Williams v. Beto, 

354 F.2d 698, 705–06 (5th Cir. 1965)). 

The prosecutor began his closing argument with this theme: “It is 

true. It is true. [TJ] is telling you the truth.” Then after explaining certain 

aspects of the court’s instructions, the prosecutor transitioned to the 

substance of the case, stating “[n]ow, we’re going to get to the elements and 

really kind of discuss how TJ is telling the truth.” The prosecutor discussed 

the age requirement for conviction, then transitioned: “So why is [TJ] telling 

the truth? Because her story is indiscriminate and consistent . . . . [S]he has 

always been consistent, and she has always been indiscriminate.” After 

discussing evidence that corroborated TJ’s story, the prosecutor reiterated 

parts of TJ’s testimony and asked: “Why? Why would she have to lie about 

the details? She wouldn’t. If she was making this up, she’d say, we had sex 

twice. I can’t remember—I mean, it was—it was too long ago. I can’t 

remember. Sex twice. Why get into the details?” Then, after addressing the 

defense’s suggestion that TJ was motivated to lie because she was not paid 

by Valas, the prosecutor repeated his rhetorical questions and commented on 

Valas’s partial corroboration of TJ’s story: 

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And why lie about two days? I mean, if we’re making this up, I 

mean, what’s so significant about two days versus one day? 

Wouldn’t one day be good enough? Valas agrees, right? 

Because he has to. He has to up to the point where everything 

corroborates her story. She is a truth-teller. But he wants you 

to believe that as soon as the documents stop, then he can come 

out and say she’s not telling the truth . . . . He’s willing to go 

up to that point because he knows he can’t escape the 

corroboration. 

Considered in isolation, some of the prosecutor’s statements appear 

suspect. But the test is not simply whether the prosecutor cast a witness as a 

“truthteller,” as Valas argues. Instead, we examine “the comment[s] in 

context.” McCann, 613 F.3d at 495 (internal quotation marks omitted) 

(quoting United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004)). 

The prosecutor’s first statement echoed Valas’s counsel’s opening 

statements to the jury three days earlier—“It’s not true. It’s not true. It’s 

not exactly what happened.”—but argued the contrary. Seizing upon the 

theme, the prosecutor reminded the jury of the events that opened the trial 

and stated the Government’s position, before proceeding to discuss the 

evidence presented during the trial purportedly supporting that position. 

Given the rhetorical context in which the prosecutor’s first statement was 

made, it is unlikely that the jury would have understood it to communicate 

that the prosecutor had some secret basis for asserting that Valas was guilty. 

Id. at 496. 

The prosecutor’s next statement merely transitioned to explain “how 

TJ [was] telling the truth” by “get[ting] to the elements” of the charged 

crime. The statement itself is not a declaration that TJ was truthful, but 

rather an introductory statement into a further discussion. Thus, considered 

in context, the jury would have had no reason to deduce that the prosecution 

had secret, undisclosed evidence that tended to establish Valas’s guilt. Id. 

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The subsequent references to TJ “telling the truth” and disclaiming 

her “motive to lie” are couched around the prosecutor’s discussion of the 

evidence in the case. Given that the statements were embedded in a reprise 

of the evidence adduced at trial, “the prosecutor . . . made fair inferences 

respecting the witnesses’ credibility, and referred to the record evidence on 

which his statements were based.” United States v. Surtain, 519 F. App’x 

266, 292 (5th Cir. 2013); see McCann, 613 F.3d at 496; Gracia, 522 F.3d at 

601. Rather than suggesting to the jury that the prosecution had other 

evidence to prove Valas’s guilt, the statements tend to show the prosecutor’s 

belief in the persuasiveness of the evidence adduced during trial. 

Because none of the prosecutor’s statements, taken in context, 

constitute improper vouching, Valas cannot argue that his trial counsel 

should have objected to them and was ineffective for not doing so. And even 

if the prosecution acted improperly as to some of its closing remarks, Valas 

fails to show how any strategic decision on his counsel’s part not to object 

rises to ineffective assistance. Therefore, this claim also falters. 

III. 

Because Valas has failed to demonstrate that the prosecution violated 

the Sixth Amendment in its failure to produce the FBI’s FD-302 notes of its 

March 2014 interview of TJ, or that he received ineffective assistance from 

either his trial or appellate counsel, the judgment of the district court is 

AFFIRMED. 

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