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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PEDRO HECTOR SALCEDO, §

No.31227-177, §

Defendant- Movant, §

§

v. § No. 3:03-CR-0355-M

§ (No. 3:05-CV-0492-M)

UNITED STATES OF AMERICA, §

Plaintiff- Respondent. §

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, the subject cause has previously been referred to the undersigned

United States Magistrate Judge. The Findings, Conclusions, and Recommendation of the

Magistrate Judge, as evidenced by his signature thereto, are as follows:

Findings and Conclusions

Type Case

This is a motion to vacate or set aside sentence filed pursuant to 28 U.S.C. §2255.

Statement of the Case

On December 5, 2003, pursuant to a plea agreement Movant plead guilty to a

violation of 21 U.S.C. § 846, conspiracy with intent to distribute, and to distribute

marijuana, as charged in count one of the indictment. On March 10, 2004 he was

sentenced to a term of fifty-eight months imprisonment followed by a four year term of

supervised release and a one hundred dollar special assessment. In accordance with the

terms of the agreement the remaining counts of the indictment against Salcedo were

dismissed on motion of the government. He did not file a direct appeal from his

conviction and sentence.

 

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He reserved the right to “bring (a) a direct appeal of (i) a sentence exceeding the statutory

maximum punishment, (ii) an upward departure from the guideline range deemed applicable by

the district court, or (iii) an arithmetic error at sentencing, and (b) a claim of ineffective

assistance of counsel.”(Plea Agreement at 5).

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Movant’s timely §2255 motion was filed on March 10, 2005. Process has not

been issued in this case.

Findings and Conclusions

Movant alleges that his conviction was obtained by a plea of guilty that was

involuntarily given, that his conviction was obtained by the use of evidence obtained

pursuant to an unlawful arrest, that his conviction was obtained by a violation of the

privilege against self-incrimination, that his conviction was obtained by a violation of the

protection against double jeopardy, that he was denied the effective assistance of counsel,

and that he was denied the right to appeal.

Movant waived his right to appeal or to file a § 2255 motion except for on certain

specified grounds1

 as part of his plea agreement. (See Plea Agreement at 4-5). There is

no indication in the record that Salcedo’s plea was involuntary. (See Tr. of

Rearraignment Hearing Before the Honorable Barbara M. G. Lynn U.S. District J. at 16-

18). Therefore, he “will be held to the bargain to which he agreed.” United States v. 

Portillo, 18 F.3d 290, 293 (5th Cir. 1994); see also United States v. McKinney, 406 F.3d

744, 746 (5th Cir. 2005). Thus, the only issue Movant can raise in this proceeding is that

of ineffective assistance of counsel.

Salcedo’s attorney’s conduct is governed by the standards set out in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an

attorney’s conduct falls within the broad range of reasonable professional assistance

required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this

 

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presumption a habeas movant must establish that the attorney’s conduct was

constitutionally deficient (cause) and that but for such unprofessional errors the result

probably would have been different (prejudice). Failure to prove either prong of the two

part test forecloses relief. Id at 698, 104 S.Ct. at 2069. 

Salcedo alleges that his attorney was ineffective because he erroneously informed

him that he would have to wait a year before appealing his conviction. However, Movant

had the right to bring a direct appeal for only three reasons besides ineffective assistance

of counsel, and he does not allege that any of those three circumstances existed in this

case. Therefore he has failed to show that his attorney’s alleged error prejudiced him. 

See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844

(1993)(“Unreliability or unfairness does not result if the ineffectiveness of counsel does

not deprive the defendant of any substantive or procedural right to which the law entitles

him.”).

RECOMMENDATION

Movant has failed to show that he is entitled to relief pursuant to 28 U.S.C. §

2255. It is therefore recommended that the petition be denied and dismissed. 

A copy of this recommendation shall be transmitted to Movant. 

Signed this 24th day of June, 2005.

_________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby

notified that you must file your written objections within ten (10) days after being served

 

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with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n,

79 F.3d 1415 (5th Cir. 1996)(en banc), a party’s failure to file written objections to these

proposed findings of fact and conclusions of law within such ten (10) day period may bar

a de novo determination by the district judge of any finding of fact and conclusion of law

and shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to proposed findings of fact and conclusions of law accepted by the district

court. 

 

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