IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

Respondent/Plaintiff, )

vs. ) No. 3:03-CR-164-N

) No. 3:06-CV-1830-N (BH)

ROY LEE BROWN, ) ECF

ID # 30753-177, ) 

 )

Movant/Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Movant, an inmate currently incarcerated in the federal prison system, filed this Motion to

Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The respondent is the United

States of America (the government).

B. Procedural History

As a result of his plea of guilty to a two-count information, defendant Brown was adjudged

guilty of securities fraud, in violation of 15 U.S.C. § 77q(a) and 77(x) (Count 1), and bank fraud,

in violation of 18 U.S.C. § 1344 (Count 2). He was sentenced to 136 months’ imprisonment on

Count 1 and 60 months on Count 2, to be served concurrently. Brown timely filed a notice of

appeal, but the appeal was dismissed as “barred by the plain language of Brown’s knowing and
1 United States v. Roy L. Brown, No. 03-11196, (5th Cir. September 27, 2005, Order Dismissing Appeal).

2 Brown v. United States, 547 U.S. 1004 (March 6, 2006).

3

Brown asserts grounds for relief in both the form motion and in his memorandum in support. 

4

See Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); see also Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir.

1990). 

2

voluntary appeal waiver in the plea agreement.”1 His petition for writ of certiorari was denied on

March 6, 2006.2 The instant motion under 28 U.S.C. § 2255 was timely filed on October 5, 2006.

Brown raises the following grounds:3

 (1) his guilty plea was not knowing and voluntary

because counsel provided ineffective assistance by telling him that he would only receive a two or

three year sentence and not advising him of the potential enhancements to his sentence under the

guidelines; and (2) counsel provided ineffective assistance in (a) allowing him to waive indictment;

(b) failing to act as the advocate required under the Fifth and Sixth Amendments; and (c) failing

to file any motions on his behalf. The government filed a response to the motion. Brown has

recently filed two other ancillary motions.

I. MOTION FOR RELEASE PENDING REVIEW

Brown has filed a motion for release pending review of his motion to vacate. Brown

identifies, and research reveals, no statutory authority for release pending a § 2255 motion. In cases

discussing release pending determination of a habeas corpus petition, a prisoner was required to show

a high probability of success on the merits of a substantial constitutional claim, or existence of

extraordinary and exceptional circumstances making the grant of bail necessary for an effective

habeas remedy.4

 Because nothing in Brown’s motion supports these standards, and his claims have

no merit, his motion for release is hereby DENIED.
5

See United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002)(“Every circuit that has addressed this issue agrees the

[AEDPA's] one year statute of limitations does not render Rule 15 inapplicable to federal habeas proceedings.”)(citations

omitted). 

6

FED R. CIV. P. 15(c)(1)(B).

7

United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (citations omitted); see generally Mayle v. Felix, 545 U.S. 644,

650 (2005)(holding in similar context of Rule 15 and an amendment to a state petition for writ of habeas corpus: “An

amended habeas petition, we hold, does not relate back (and thereby escape AEDPA's one-year time limit) when it

asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set

forth.”)

3

II. MOTION TO SUPPLEMENT/STATUTE OF LIMITATIONS

Brown’s § 2255 motion was timely filed within one year of March 6, 2006, the date his

conviction became final as a result of the denial of his petition for writ of certiorari. Brown has since

filed a motion for leave of Court to supplement his § 2255 motion with a claim that counsel was

ineffective in failing to investigate whether he was subject to two additional criminal history points

under USSG 4A1.1(d). That motion was filed on January 7, 2008, beyond the applicable time

limitation under 28 U.S.C. 2255(f)(1). 

Federal Rule of Civil Procedure 15 governs amended and supplemental pleadings, and the

law is clear that Rule 15 applies to amendments of § 2255 motions.5 Rule 15(c)(1)(B) provides that

an amendment to a pleading “relates back to the date of the original pleading when ... the

amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set

out . . . in the original pleading.” 6 Although “an amendment offered for the purpose of adding to

or amplifying the facts already alleged in support of a particular claim may relate back, one that

attempts to introduce a new legal theory based on facts different from those underlying the timely

claims may not.”7 “A prisoner should not be able to assert a claim otherwise barred by the statute
8

United States v. Duffus, 174 F.3d 333, 338 (3d Cir. 1999). 

9

See Hanna v. United States, Nos. 3:01-CV-2197-H, 3:99-CR-085-H, 2003 WL 203177, at *1 (N.D.Tex. Jan.27,

2003)(finding movant’s new claim of ineffective assistance of counsel did not relate back to her original pleading);

Olivares-Martinez v. United States, Nos. 3:01-CV-1413-P, 00-CR-0312-P, unpub. op. (N.D.Tex. Nov. 26, 2002).

10Strickland, 466 U.S. at 687.

4

of limitations merely because he asserted a separate claim within the limitations period.”8 This Court

has recognized that claims do not relate back merely because they arose from the same trial or

sentencing proceeding.9

In the original motion, Brown alleged generally that his counsel was ineffective for failing to

act as his advocate, to investigate, and to file motions. In his supplemental ineffective-assistance

claim, Brown contends that his counsel failed to object to the addition of two points to his criminal

history computation under USSG § 4A1.1(d). Because Brown’s initial allegations are so general, his

proposed supplemental claim could be construed to arise out of the same conduct complained of in

the original bases for relief under § 2255, and therefore to relate back under Rule 15(c). Brown’s

motion for leave to supplement is hereby GRANTED.

III. INEFFECTIVE ASSISTANCE OF COUNSEL 

The now-familiar two-pronged standard for review of claims of ineffective assistance of

counsel was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): “First,

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.”10 This same test applies to challenges to guilty pleas based
11Hill v. Lockhart, 474 U.S. 52, 58 (1985). 

12Strickland, 466 U.S. at 690. 

13Id., Hill, 474 U.S. at 57-58, citing Tollet v. Henderson, 411 U.S. 258 ((1973) and McMann v. Richardson, 397 U.S. 759

(1970).

14United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995); see also King v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.), cert

den’d, 489 U.S. 1093 (1989).

15Hill, 474 U.S. at 59. 

16United States v. Ruiz, 536 U.S. 622, 629 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). 

5

upon ineffective assistance of counsel.11

In order to show the deficiency component, the burden is upon 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 professional

judgment.”12 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.”13

There is a strong presumption that the performance of counsel falls within this range.14 In order to

prove prejudice in the plea process, the defendant “must show 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.”15

A. Voluntariness of Plea

Because a guilty plea relinquishes rights of the defendant, “the Constitution insists, among

other things, that the defendant enter a guilty plea that is ‘voluntary’ and that the defendant must

make related waivers ‘knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant

circumstances and likely consequences.”16 Ordinarily, a waiver is entered knowingly, intelligently,
17Id. at 630. 

18Id.

19United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000). 

20United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998), citing Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir.

1989). 

21United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)(quoting United States v. Sanderson, 595 F.2d 1021, 1022 (5th

Cir. 1979). 

22Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

23See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994).

6

and with sufficient awareness, when “the defendant fully understands the nature of the right and

how it would likely apply in general in the circumstances–even though the defendant may not know

the specific detailed consequences of invoking it.”17 With “respect to a defendant’s awareness of

relevant circumstances, [the Constitution] does not require complete knowledge of the relevant

circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various

constitutional rights, despite various forms of misapprehension under which a defendant might

labor.”18 “[A] defendant need only understand the direct consequences of the plea; he need not be

made aware [of] every consequence that, absent a plea of guilty, would not otherwise occur.”19

A guilty plea may be invalid if induced by a defense counsel’s unkept promises.20 Ordinarily,

however, “a defendant will not be heard to refute his testimony given under oath when pleading

guilty.”21 “Solemn declarations in open court carry a strong presumption of verity,” and the

“representations of the defendant, his lawyer, and the prosecutor at a [plea] hearing, as well as any

findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent

collateral proceedings.”22 Any documents signed by the defendant at the time of the guilty plea are

entitled to “great evidentiary weight.”23
24These allegations are included in Brown’s memorandum in support of his motion, which was not sworn to or otherwise

verified. 

7

Brown contends that counsel failed to advise him that he could receive sentence

enhancements and told him that his term of imprisonment would be only two or three years. He

alleges that had he known he could receive enhancements, he would not have pleaded guilty and

would have insisted on going to trial.24 These claims are directly refuted by Brown’s testimony and

the documents signed by him. Both Brown and his counsel signed a plea agreement, a factual

resume, and a document listing the elements of the offenses. (Docket nos. 3, 4, and 5). The plea

agreement included an express declaration that the “plea of guilty is freely and voluntarily made and

is not the result of force or threats, or of promises apart from those set forth in this plea agreement.”

(Plea Agreement at 5, ¶ 11.) Brown expressly agreed that he waived his rights to plead not guilty,

to have a trial by jury, to have his guilt proven beyond a reasonable doubt, to confront and crossexamine witnesses in his defense, and against self incrimination. (Plea Agreement at 1, ¶¶ 1-2.) He

also expressly agreed to waive his right to appeal and to challenge his conviction in any collateral

proceeding except on limited grounds, including claims of ineffective assistance of counsel. (Plea

Agreement at 4-5, ¶¶ 8-9.) The plea agreement listed the fact that Brown faced a statutory

maximum penalty on the bank fraud count of not more than 30 years’ imprisonment. (Plea

Agreement at 2, ¶ 4.) Brown agreed that “[t]here have been no representations or promises from

anyone as to what sentence the Court will impose.” (Plea Agreement at 5-6, ¶ 11.) 

Within a few days of signing these documents, at the rearraignment hearing, Brown pleaded

guilty to the two-count information. (May 28, 2003, Rearraignment Transcript at 23.) He testified

that he entered the plea agreement voluntarily, of his own free will, and without any other promises
8

or assurances. (May 28, 2003, Tr. at 20.) Brown also acknowledged having signed and agreed to

the 15 page factual resume, and that the facts recited therein were true and correct (May 28, 2003,

Tr. at 24.) That document includes details about Brown’s fraud on investors and a listing of the

amounts lost and persons and entities harmed. (May 20, 2003, Factual Resume.) During the

rearraignment, the prosecutor read the maximum penalties that Brown would face if he pleaded

guilty, including a statutory maximum penalty of not more than 30 years. (May 28, 2003, Tr. at 21-

22.) Brown acknowledged that he understood that if his sentence was more severe than he

expected, he would still be bound by his plea of guilty and would have no right to withdraw it. (May

28, 2003, Tr. at 22.) Brown also testified that he had discussed the case and the charges against him

with his attorney, and “[was] fully satisfied with the advice [he] received and [counsel’s]

representation.”(May 28, 2003, Tr. at 23.) His plea of guilty was found to be knowing and voluntary,

and this Court recommended that the District Court accept it. (May 28, 2003, Tr. at 24.)

After review of the record, Brown has not made any sufficient showing that counsel was

deficient with regard to his entry of the plea agreement and waiver of her rights. He fails to show

why the Court should not afford “great evidentiary weight” to the documents he agreed to, and

afford the “strong presumption of verity” to his prior sworn testimony that he understood the waiver

of his constitutional rights, and entered his guilty plea knowingly and voluntarily. The Court should

find that Brown has not shown that counsel was ineffective on this first claim, and that his plea was

knowing and voluntary.

B. Waiver of Indictment

Brown claims that counsel was ineffective in allowing him to waive his right to be charged

by indictment. This claim, too, is refuted by the record. Brown and his counsel signed a waiver of
25The Court in Cronic, listed three scenarios where prejudice could be presumed, but the only one applicable here is

counsel’s complete failure to challenge the state’s case. Cronic, 466 U.S. at 659-662.

26See Bell v. Cone, 535 U.S. 685, 697 (2002); see Cronic, 466 U.S. at 659 (counsel must “entirely fail to subject the

prosecution’s case to meaningful adversarial testing”). 

27 See Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir. 2000). 

9

indictment, by which he expressly agreed that “being advised of the nature of the charges and of his

rights hereby waives in open court prosecution by indictment and consents that the proceeding may

be by information instead of by indictment.” (Docket no. 10, May 28, 2003, Waiver of Indictment.)

He was admonished by this Court of the function of the grand jury and his right to be so charged,

but he acknowledged that he had discussed with his counsel and understood the right to waive

indictment by a grand jury. (May 28, 2003, Tr. at 16.) He also acknowledged signing and agreeing

to the written waiver of indictment in open court. (May 28, 2003, Tr. at 18.) Brown has shown

nothing to question or refute this record that he knowingly and voluntarily waived his right to

indictment. His claim of ineffective assistance on this basis should be denied. 

C. Failing to Advocate and Investigate/Failing to File Motions

Brown also argues that counsel failed to act as a sufficient advocate such that prejudice

should be presumed under United States v. Cronic, 466 U.S. 648 (1984).25 For this exception to the

Strickland test to apply, and prejudice presumed, the attorney must have entirely failed to challenge

the prosecution’s case, not just individual elements of it.26 Brown attempts to support this allegation

by claiming that counsel failed to investigate. But allegations of counsel’s failure to investigate must

allege with specificity what the investigation would have revealed and how it would have altered the

outcome of the trial.27 In his motion and memorandum in support, Brown fails to specify what

counsel should have investigated, what any investigation would have revealed, or how the outcome
28See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)(“conclusory allegations of ineffective assistance of counsel do

not raise a constitutional issue in a federal habeas proceeding”)(citations omitted).

29See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994.)

10

of his case would have been different. As such claim is conclusory, it is insufficient.28 Brown also

alleges counsel failed to file motions on his behalf. But this claim is factually inaccurate, as counsel

filed a motion for extension of time to file objections to the PSR, a motion for downward departure,

and a motion to continue the sentencing hearing. (Docket nos. 15, 19, and 20.) Thus, Brown’s

claim that counsel’s actions were so inadequate that he failed to subject the prosecution’s case to

meaningful testing is without merit, and should be denied.

As to Brown’s supplemental claim that counsel was ineffective for failing to challenge the

computation in the presentence report that he was subject to two additional criminal history points

under USSG 4A1.1(d), any objection on this basis would have been overruled because he committed

the offense of conviction while under a sentence of probation. Section 4A1.1(d) of the then

applicable guidelines provides that two points should be added to the criminal history score “if the

defendant committed the instant offense while under any criminal justice sentence, including

probation, parole, supervised release, imprisonment, work release, or escape status.” Count 1 and

Count 2 of the Information, to which Brown pleaded guilty, each expressly noted that the securities

fraud and bank fraud began “as early as May 1999.” (May 28, 2003, Tr. at 14-15.) The presentence

report noted that Brown’s probation for reckless driving in case number 97-2116-1 before the County

Court at Law No. 1 of Williamson County, Texas, did not expire until November 4, 1999. (PSR at

¶ 51.) Thus, Brown was properly assessed the additional two points, and any objection by counsel

would have been frivolous, and thus could not constitute ineffective assistance of counsel.29 The
30See e.g. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)(requiring a defendant to provide independent

indicia of the likely merit of his allegations, such as affidavits from third parties)(citing Harmason v. Smith, 888 F.2d 1527,

1529 (5th Cir. 1989)); United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)(same)(citations omitted).

11

Court should deny Brown supplemental ineffective assistance claim. 

III. EVIDENTIARY HEARING

Upon review of the motion to vacate and the files and records of this case, an evidentiary

hearing appears unnecessary. No evidentiary hearing is required when “the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. 

A defendant bringing a claim under § 2255 that conflicts with his sworn testimony must provide

“specific factual allegations” regarding the alleged violation of his constitutional rights, and these

allegations must be corroborated before a hearing will be required.30 Brown did not provide any

independent support for his own unsworn allegations. Thus, he is not entitled to a hearing.

 IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court DENY the motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. §

2255, as supplemented.

SIGNED this 29th day of July, 2008.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE
12

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE