IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

BRETT TALIAFERRO §

VS. § CIVIL ACTION NO. 9:23-CV-125

UNITED STATES OF AMERICA § 

 REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Movant Brett Taliaferro, a federal prisoner, proceeding pro se, filed this Motion to Vacate,

Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.

The Motion was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Background

Movant is in custody pursuant to a judgment entered in the United States District Court for

the Eastern District of Texas. On August 18, 2021, a federal grand jury returned a nine-count

indictment chargingMovant and three co-defendants with controlled substance and firearm offenses. 

An Assistant Federal Public Defender was appointed to represent Movant. Movant entered into a

written plea agreement with the government, in which he agreed to plead guilty to conspiracy to

distribute and to possess with the intent to distribute methamphetamine (Count 1) and possession

of a firearm in furtherance of a drug trafficking crime (Count 4). In the Factual Basis accompanying

the plea agreement, Movant admitted to controlled substance offenses involving 694.598 grams of

methamphetamine (actual) and 196.2 grams of a mixture containing methamphetamine. Prior to the

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completion of the Presentence Investigation Report (PSR), defense counsel’s motion to withdraw

was granted, and new counsel was appointed to represent Movant. 

Based on the quantity of methamphetamine agreed to in the Factual Basis, the Probation

Office calculated a base offense level of 34 for Count 1. Movant received a two-level enhancement

for maintaining a premises for the purposes of manufacturing or distributing a controlled substance. 

After receiving a three-level decrease for acceptance of responsibility, Movant’s offense level was

33. With a criminal history score of VI and an offense level of 33, Movant’s guideline range for

Count 1 was 235-293 months of imprisonment. With respect to Count 4, the guideline range was

a mandatory five-year consecutive sentence. 

On August 3, 2022, Movant was sentenced to 280 months of imprisonment on Count 1, and

and 60 months on Count 4, with the sentences to run consecutively. Movant did not appeal the

judgment. 

The Motion

Movant contends that the district court deviated from the United States Sentencing

Guidelines in imposing sentence on Count 1 based on the drug purity. Movant also contends that

he was denied the effective assistance of counsel because his defense counsel withdrew and was

replaced without notice.

 S ta n d a rd o f R e v ie w 

Title 28 U.S.C. § 2255 permits the district court, in certain instances, to vacate a judgment

and release or resentence the prisoner, grant the prisoner a new trial, or otherwise correct the

sentence. The statute provides:

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A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the sentence was

imposed in violation of the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255. 

Following a conviction and exhaustion of the right to direct appeal, a criminal defendant is

presumed to stand fairly and finally convicted. United States v. Shaid, 937 F.2d 228, 231-32 (5th

Cir. 1991) (en banc). Thus, relief under § 2255 is reserved for violations of constitutional rights, and

for a narrow range of errors that could not have been raised on direct appeal and would result in a

complete miscarriage of justice if allowed to go uncorrected. United States v. Vaughn, 955 F.2d 367,

368 (5th Cir. 1992). Even if the movant alleges an error of constitutional magnitude, he generally

may not raise the issue for the first time on collateral review without showing cause for the

procedural default and actual prejudice resulting from the error. Shaid, 937 F.2d at 232. However,

claims based on ineffective assistance of counsel may be raised for the first time in a collateral

proceeding, whether or not the issue could have been raised on direct appeal. Massaro v. United

States, 538 U.S. 500, 509 (2003).

Analysis

Ineffective Assistance of Counsel

Movant claims that he received ineffective assistance of counsel because his defense attorney

withdrew and another defense attorney was appointed without notice to Movant. In order to

establish ineffective assistance of counsel, Movant must prove counsel’s performance was deficient,

and the deficient performance prejudiced Movant’s defense. Strickland v. Washington, 466 U.S.

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668, 689-92 (1984). Because Movant must prove both deficient performance and prejudice, failure

to prove either will be fatal to his claim. Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995). 

Judicial scrutiny of counsel’s performance is highly deferential. Strickland, 466 U.S. at 689. 

As a result, there is a strong presumption that counsel rendered reasonable, professional assistance,

and that the challenged conduct was the result of a reasoned trial strategy. Id.; United States v.

Fields, 565 F.3d 290, 294 (5th Cir. 2009). To overcome the presumption that counsel provided

reasonably effective assistance, Movant must prove his attorney’s performance was objectively

unreasonable in light of the facts of Movant’s case, viewed as of the time of the attorney’s conduct. 

Strickland, 466 U.S. at 689-90; Fields, 565 F.3d at 294. 

In addition to proving counsel’s performance was deficient, Movant is required to show

prejudice resulting from counsel’s inadequate performance. Strickland, 466 U.S. at 691-92. Movant

must establish “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. Mere allegations of prejudice are insufficient;

Movant must affirmatively prove, by a preponderance of the evidence, that he was prejudiced as a

result of counsel’s deficient performance. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). In

the context of a guilty plea, Movant must show a reasonable probability that, but for counsel’s

deficient performance, he would not have pleaded guilty and would have insisted on going to trial. 

United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008) (citing Hill v. Lockhart, 474 U.S. 52, 59

(1985)).

Indigent defendants do not have the right to appointed counsel of their choosing. United

States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007). Movant was represented by counsel at the

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sentencing phase of his case. Movant has not demonstrated that the attorney’s performance was

deficient or shown that he was prejudiced by counsel’s performance at the sentencing hearing. 

Therefore, Movant is not entitled to relief on this ground.

Sentencing Guideline Calculation

Movant contends that the district court erred by deviating from the guidelines in imposing

sentence. More specifically, it appears that Movant is arguing that the guideline range was

improperly calculated based on the purity of the methamphetamine. In paragraph twelve of the plea

agreement, Movant waived his right to appeal his sentence or challenge it in a § 2255 Motion, unless

his sentence exceeded the statutory maximum. In this case, the 280-month sentence for Count 1 did

not exceed the statutory maximum of life imprisonment. 

A defendant may, as part of a valid plea agreement, waive his statutory right to appeal his

conviction on direct appeal and under 28 U.S.C. § 2255. United States v. White, 307 F.3d 336, 339

(5th Cir. 2002); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The waiver must be

voluntary and must be a knowing, intelligent act done with awareness of the relevant circumstances

and likely consequences. United States v. Burns, 433 F.3d 442, 449 (5th Cir. 2005). An ineffective

assistance of counsel claim survives the waiver of appeal only if the alleged ineffective assistance

directly affects the validity of the waiver or the plea itself. White, 307 F.3d at 343.

In light of paragraph twelve of the plea agreement, Movant clearly waived his right to file

a § 2255 motion. In paragraph eleven, Movant stipulated that his plea was freely and voluntarily

made, and was not entered into as the result of threats or promises not disclosed in the plea

agreement. The sentence was imposed in accordance with the terms of the plea agreement, Movant’s

claim regarding his sentence does not involve allegations of ineffective assistance of counsel, and

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Movant does not allege that ineffective assistance of counsel affected the validity of the waiver or

the guiltyplea. Therefore, the waiver should be enforced, and Movant’s claim regarding his sentence

is barred by the waiver.

Recommendation

This Motion to Vacate, Set Aside, or Correct Sentence should be denied.

Objections

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings of facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72. 

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___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 29th day of July, 2024.

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