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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

SHAWN CARL GAITAN,

Plaintiff,

v. 

UNITED STATES OF AMERICA,

Defendant.

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CIVIL ACTION NO. 6:23-CV-00242-JDKJDL

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Movant Shawn Carl Gaitan, an inmate confined at FCI Texarkana, proceeding pro se, 

brings this Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal custody

pursuant to 28 U.S.C. § 2255. (Doc. No. 1.). The motion was referred for findings of fact, 

conclusions of law, and recommendations for the disposition of the case. Upon review, for the 

reasons stated herein, the court RECOMMENDS that the motion be DENIED, and the case be 

DISMISSED WITH PREJUDICE.

BACKGROUND

I. Procedural History

On August 16, 2017, a grand jury sitting in the Eastern District of Texas, returned a onecount indictment against Gaitan and eleven co-defendants. (6:20-cr-00097-01, Doc. No. 2.) 

Count One charged Gaitan with conspiracy to possess with intent to distribute and distribution of

methamphetamine, in violation of 21 U.S.C. § 846. Id. 

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On September 20, 2021, prior to the commencement of trial and pursuant to a plea 

agreement, Gaitan pled guilty to Count One of the indictment. (6:20-cr-00097-01, Doc. No. 274.) 

On October 6, 2021, the court found Gaitan guilty of Count One. (6:20-cr-00097-01, Doc. 

No. 291.) The court entered a final judgment of 210 months for Count One. (6:20-cr-00097-01, 

Doc. No. 415.) Gaitan did not file a notice of appeal. See (6:20-cr-00097-01.)

Gaitan filed the present § 2255 motion (Doc. No. 1) on May 8, 2023. He alleges that he is 

entitled to relief based on ineffective assistance of counsel. More specifically, he alleges that his 

attorney was ineffective for failing to investigate and object to the validity of the indictment on the 

grounds that Gaitan was constructively denied assistance of counsel during the grand jury 

proceedings that resulted in his indictment. (Doc. No. 1.) Gaitan requests that the court authorize 

him to file an application for writ of habeas corpus under 28 U.S.C. § 2241 to test the validity of 

his conviction because § 2255 fails to provide an adequate remedy. (Doc. No. 5.) The Government 

filed a response (Doc. No. 2) on August 16, 2023, and Gaitan filed a reply (Doc. No. 5) on 

September 14, 2023.

LEGAL STANDARD

As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different 

from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). Pursuant to 

28 U.S.C. § 2255, a defendant may move to vacate, set aside, or correct his sentence if: (1) the 

sentence was imposed in violation of the Constitution or the laws of the United States; (2) the 

district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in 

excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral 

attack. 28 U.S.C. § 2255(a). The nature of a § 2255 collateral challenge is extremely limited, being 

reserved for instances of constitutional or jurisdictional magnitude. United States v. Shaid, 

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937 F.2d 228, 232 (5th Cir. 1991). A “distinction must be drawn between constitutional or 

jurisdictional errors on the one hand, and mere errors of law on the other.” United States v. Pierce, 

959 F.2d 1297, 1300–01 (5th Cir. 1992) (citations omitted). If an error is not of constitutional 

magnitude, the movant must show that the error could not have been raised on direct appeal and 

would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 

194, 196 (5th Cir. 1994).

DISCUSSION

I. Preliminary Issues

a. Gaitan’s Request to File a Writ of Habeas Corpus

As an initial manner, the court notes that while Gaitan is bringing this claim under 

28 U.S.C. § 2255, the relief Gaitan seeks is leave to file an application for writ of habeas corpus 

pursuant to 28 U.S.C. § 2241. However, § 2255 specifically prohibits a prisoner from applying for 

a writ of habeas corpus under § 2241 unless they can show that their claim falls under the so called 

“savings clause.” Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010). The “savings clause” states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized 

to apply for relief by motion pursuant to this section, shall not be entertained if it 

appears that the applicant has failed to apply for relief, by motion, to the court which 

sentenced him, or that such court has denied him relief, unless it also appears that 

the remedy by motion is inadequate or ineffective to test the legality of his detention. 

28 U.S.C. § 2255(e) (emphasis added).

Here, Gaitan seeks to challenge the legality of his conviction based on ineffective 

assistance of trial counsel. Gaitan claims that a § 2255 motion to vacate is only available to test 

the legality of the sentence imposed, and that the only way he can challenge the legality of the 

underlying conviction is by writ of habeas corpus pursuant to § 2241. Thus, Gaitan argues that his 

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claim falls under § 2255(e)’s savings clause. However, the purposes of these two provisions are 

the exact opposite of what Gaitan contends:

A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set 

aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms 

for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced 

prisoner attacks the manner in which a sentence is carried out or the prison 

authorities’ determination of its duration[] and must be filed in the same district 

where the prisoner is incarcerated. A section 2255 motion, by contrast, ‘provides 

the primary means of collateral attack on a federal sentence.’ Relief under section 

2255 is warranted for errors cognizable on collateral review that occurred ‘at or 

prior to sentencing.’ Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (internal 

citations omitted).

As such, § 2241 is not the proper vehicle for Gaitan’s claim for ineffective assistance of 

counsel. See id. Regardless, given that his stated purpose in filing this § 2255 motion is to test the 

legality of the underlying conviction, the court will nonetheless address the merits of his claim for 

ineffective assistance of counsel. See 28 U.S.C. § 2255.

b. Respondent’s Arguments About Procedural Default and Waiver

Before reaching the merits of Gaitan’s claims, the court will address Respondent’s 

arguments concerning procedural default and waiver. First, Respondent argues that Gaitan’s claim 

for ineffective assistance of counsel is barred by procedural default because he could have raised

the issue on direct appeal but did not. See (Doc. No. 13, at 6.) Respondent is correct that, generally, 

issues that could have been raised on direct appeal, but were not, are not cognizable on collateral 

review absent a showing of cause and prejudice. Pierce, 959 F.2d at 1300. However, claims for 

ineffective assistance of counsel are of such “constitutional magnitude” as to “satisfy the cause 

and actual prejudice standard.” Id. at 1301. In fact, the Fifth Circuit has said that, generally, it will 

not address claims for ineffective assistance of counsel on direct appeal “[e]xcept in those rare 

instances where an adequate record exists to evaluate such a claim[.]” Id. Here, Gaitan is 

challenging his conviction on the basis of ineffective assistance of counsel. Further, Respondent 

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has not shown that the trial record was sufficient to evaluate Gaitan’s ineffective assistance claim 

on direct appeal. Therefore, Gaitan’s claim is not barred by procedural default.

Second, Respondent argues that Gaitan’s claim is barred because he waived his right to 

appeal as part of his plea agreement. (Doc. No. 13, at 7.) However, as Respondent acknowledges, 

the plea agreement specifically reserved the right to “appeal or seek collateral review of a claim of 

ineffective assistance of counsel.” (Doc. No. 1-6, at 5.) Here, Gaitan is seeking collateral review 

on the basis of ineffective assistance of counsel. Therefore, this claim not subject to waiver. 

II. Ineffective Assistance of Counsel

a. Legal Standard

In Strickland v. Washington, the Supreme Court announced that to succeed on an ineffective 

assistance of counsel claim, a defendant must show both: (1) that counsel “made errors so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment;” and (2) “the deficient performance prejudiced the defense,” meaning that “counsel’s 

errors were so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 

466 U.S. 668, 687 (1984).

Regarding the first prong, the right to counsel does not require errorless counsel; instead, 

a criminal defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 

389 (5th Cir. 1981); see also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982). Under this 

standard, the defendant must show that counsel’s representation fell below an objective standard 

of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687. As it is easy 

to second-guess counsel’s performance after a conviction or adverse sentence, a fair assessment of 

performance requires reconstructing the circumstances of counsel’s conduct from his perspective 

at the time, rather than looking towards the “distorting effects of hindsight.” Id. at 689. As such, 

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counsel is strongly presumed to have performed adequately and made decisions using reasonable 

professional judgment. Id. at 690.

Regarding the second prong, the movant “must show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

at 694. Movant must “affirmatively prove,” not just allege, prejudice. Id. at 693. Courts need not 

address both inquiries if the defendant does not sufficiently support one prong; nor must the court 

address the test in the same order. Id. at 697. If he fails to prove the prejudice component, the court 

need not address the question of counsel’s performance. Id.

b. The Sixth Amendment Right to Counsel Does Not Attach During Grand Jury

Proceedings

The crux of Gaitan’s argument is twofold. First, Gaitan argues that his Sixth Amendment 

right to counsel was violated because he was not represented by counsel during the grand jury 

proceedings that resulted in his indictment. Second, Gaitan asserts that his appointed trial counsel 

was ineffective for failing to investigate and object to the validity of the indictment on the grounds 

that Gaitan was constructively denied assistance of counsel during the grand jury proceedings. 

However, as explained below, Gaitan’s Sixth Amendment right to counsel did not attach during 

the grand jury proceedings because the Government had not yet initiated adversary judicial 

proceedings against him.

Under Supreme Court precedent, “once the adversary judicial process has been initiated, 

the Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’stages 

of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009). However, it is only 

when the Government has committed itself to prosecute that the adversary judicial process has 

been initiated. Lomax v. Alabama, 629 F.2d 413, 415 (5th Cir. 1980); see also Rothgery v. Gillespie 

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Cnty., Tex., 554 U.S. 191, 198 (2008). The Supreme Court has held that a prosecution commences 

for purposes of the Sixth Amendment right to counsel “at or after the initiation of adversary judicial 

criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, 

information, or arraignment.” United States v. Gouveia, 467 U.S. 180, 188 (1984) (citation 

omitted). 

Here, Gaitan was not indicted until the conclusion of the grand jury proceedings. Therefore, 

his Sixth Amendment right to counsel had not yet attached. See United States v. Mandujano, 

425 U.S. 564, 581 (1976) (“No criminal proceedings had been instituted against respondent, hence 

the Sixth Amendment right to counsel had not come into play.”). In other words, Gaitan did not 

have a Sixth Amendment right to counsel during the grand jury proceedings. As such, Gaitan’s 

appointed counsel could not have objected to the failure to provide counsel during the grand jury 

proceedings because no such right existed. Any objection on that basis would have been frivolous 

and could have resulted in sanctions by the court. Accordingly, Gaitan cannot show that his trial 

counsel was deficient for failing to assert an untenable position about the extent of Gaitan’s Sixth 

Amendment right to counsel. See Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995) (“Counsel 

cannot be deficient for failing to press a frivolous point.”).

RECOMMENDATION

For the foregoing reasons, the court RECOMMENDS that Movant’s motion (Doc. No. 1)

be DENIED and that the case be DISMISSED with prejudice. 

Within fourteen (14) days after service of the Magistrate Judge’s Report, any party must 

serve and file specific written objections to the findings and recommendations of the Magistrate 

Judge. 28 U.S.C. § 636(b)(1)(C). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and specify the place 

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in the Magistrate Judge’s report and recommendation where the disputed determination is found. 

An objection that merely incorporates by reference or refers to the briefing before the Magistrate 

Judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

So ORDERED and SIGNED this 20th day of December, 2023.

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