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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

vs. Case Nos.: 3:10cr80/RV/EMT

3:13cv471/RV/EMT

ROGELIO MUNOZ-MORALES

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s Motion to Vacate, Set Aside, 

or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 47). The Government 

filed a response (ECF No. 54), and Defendant filed a reply (ECF No. 58). 

Defendant then filed a supplemental reply (ECF No. 63), to which the Government 

responded (ECF No. 66), and Defendant filed an additional reply (ECF No. 67). 

The case was referred to the undersigned for the issuance of all preliminary orders 

and any recommendations to the district court regarding dispositive matters. See

N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. ' 636(b) and Fed. R. Civ. P. 72(b). After 

a careful review of the record and the arguments presented, it is the opinion of the 

undersigned that Defendant has not raised any issue requiring an evidentiary hearing, 

but that his ' 2255 motion should be granted in part. 

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BACKGROUND and ANALYSIS

Defendant was charged in a two-count indictment with conspiracy to possess 

with intent to distribute five kilograms or more of a mixture and substance 

containing cocaine, and possession with intent to distribute five kilograms or more 

of cocaine on a date certain (ECF No. 15). The Government filed a notice of 

enhancement information listing a single prior felony drug conviction (ECF No. 23). 

Represented by appointed counsel Spiro Kypreos, on August 25, 2010, Defendant 

entered a plea of guilty to both charges pursuant to a written plea agreement and a 

separate statement of facts (ECF Nos. 31, 32). 

There are three versions of the Presentence Investigation Report in the record 

(see ECF Nos. 37 (Draft PSR), 40 (Final PSR), 44 (Second Revised Final PSR)). 

The Second Revised Final PSR (hereinafter “PSR”) reflects that Defendant had a 

base offense level of 32 due to the quantity of drugs involved in the offense conduct 

and that he received a three-level adjustment for acceptance of responsibility (ECF 

No. 44, PSR at ¶¶ 30, 36). Defendant’s base offense level became 37 due to the 

application of the Chapter Four Career Offender Enhancement (ECF No. 44, PSR ¶ 

38), which was reduced to 34 due to the acceptance of responsibility adjustment 

(id.). More specifically, because Defendant was found to have at least two prior 

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felony convictions of either a crime of violence or a controlled substance offense, 

“Burglary of Habitation Intend Commit Theft (Lesser Included Offense)” 1 and 

importation of marijuana, his total offense level was 34 (ECF No. 44, PSR ¶ 38). 

Defendant’s criminal history category would have been IV, but with the application 

of the career offender adjustment it became VI (ECF No. 44, PSR ¶ 44–47). The 

applicable guidelines range was 262 to 327 months. Judgment was entered on 

November 10, 2010, reflecting Defendant’s sentence of 270-months imprisonment 

on each count to run concurrently (ECF No. 42).

Defendant did not appeal, but he filed the instant motion to vacate pursuant to 

the prison mailbox rule2 on August 16, 2013 (ECF No. 47 at 13). Defendant raises 

three grounds for relief. First, he claims that he was improperly sentenced as a 

 

1 This offense was identified as “Burglary of Habitation” in the Final PSR (ECF No. 40, PSR ¶ 

43). As noted, the offense was amended to read “Burglary of Habitation Intend Commit Theft 

(Lesser Included Offense)” in the Second Revised Final PSR (see ECF No. 44, PSR ¶¶ 38, 106). 

This change was not mentioned during the sentencing proceeding. 

2 A pro se inmate=s pleading is deemed filed at the time it is placed in the prison mailbox or 

delivered to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) 

(holding that a pro se inmate=s notice of appeal was filed as of the time he placed it in the prison 

mailbox, thus creating the Aprison mailbox rule@)

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career offender in violation of Descamps v. United States, 133 S. Ct. 2276 (2013). 

Next, he argues that his attorney provided constitutionally ineffective assistance at 

sentencing, and third, he asserts that the district court committed constitutional error 

by sentencing him based on facts it found at sentencing, rather than on facts found 

by a jury beyond a reasonable doubt. In directing the Government to respond, the 

court noted Defendant’s argument that the Supreme Court’s decisions in Descamps, 

133 S. Ct. at 2276 and McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), allowed 

consideration of his claims.

LEGAL ANALYSIS

Timeliness

As an initial matter, the court considers the timeliness of Defendant’s motion. 

Title 28 U.S.C. ' 2255(f) imposes a one-year time limitation on the filing of motions 

under this section. The one-year period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by 

governmental action in violation of the Constitution or laws of the 

United States is removed, if the petitioner was prevented from making 

a motion by such governmental action;

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(3) the date on which the right asserted was initially recognized by the 

Supreme Court, if that right has been newly recognized by the Supreme 

Court and made retroactively applicable to cases on collateral review; 

or

(4) the date on which the facts supporting the claim or claims presented 

could have been discovered through the exercise of due diligence.

28 U.S.C. ' 2255(f). Defendant relies on § 2255(f)(3), claiming that the Supreme 

Court’s decisions in Descamps, 133 S. Ct. at 2276 and McQuiggin, 133 S. Ct. at 

paved the way for the court’s consideration of his claims. Defendant’s argument is 

well-taken, at least with respect to Ground One of his motion. 

General Standard of Review

Collateral review is not a substitute for direct appeal, and therefore the 

grounds for collateral attack on final judgments pursuant to ' 2255 are extremely 

limited. A prisoner is entitled to relief under section 2255 if the court imposed a 

sentence that (1) violated the Constitution or laws of the United States, (2) exceeded 

its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise 

subject to collateral attack. See 28 U.S.C. ' 2255(a); McKay v. United States, 657 

F.3d 1190, 1194 n.8 (11th Cir. 2011). ARelief under 28 U.S.C. ' 2255 >is reserved 

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for transgressions of constitutional rights and for that narrow compass of other injury 

that could not have been raised in direct appeal and would, if condoned, result in a 

complete miscarriage of justice.=@ Lynn v. United States, 365 F.3d 1225, 1232 

(11th Cir. 2004) (citations omitted). The Afundamental miscarriage of justice@

exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that 

it must be shown that the alleged constitutional violation Ahas probably resulted in 

the conviction of one who is actually innocent . . . .@ 

The law is well established that a district court need not reconsider issues 

raised in a section 2255 motion which have been resolved on direct appeal. Rozier 

v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 

F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th 

Cir. 1994). Once a matter has been decided adversely to a defendant on direct 

appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 

211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court=s 

determination of whether a particular claim has been previously raised. Sanders v. 

United States, 373 U.S. 1, 16 (1963) (Aidentical grounds may often be proved by 

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different factual allegations . . . or supported by different legal arguments . . . or 

couched in different language . . . or vary in immaterial respects@). 

Because a motion to vacate under section 2255 is not a substitute for direct 

appeal, issues which could have been raised on direct appeal are generally not 

actionable in a section 2255 motion and will be considered procedurally barred. 

Lynn, 365 F.3d at 1234B35; Bousley v. United States, 523 U.S. 614, 621 (1998); 

McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is 

A>available= on direct appeal when its merits can be reviewed without further factual 

development.@ Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). 

Absent a showing that the ground of error was unavailable on direct appeal, a court 

may not consider the ground in a section 2255 motion unless the defendant 

establishes (1) cause for not raising the ground on direct appeal, and (2) actual 

prejudice resulting from the alleged error, that is, alternatively, that he is Aactually 

innocent.@ Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). 

To show cause for procedural default, a defendant must show that Asome objective 

factor external to the defense prevented [him] or his counsel from raising his claims 

on direct appeal and that this factor cannot be fairly attributable to [defendant=s] own 

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conduct.@ Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance 

of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

Ineffective assistance of counsel claims are generally not cognizable on direct 

appeal and are properly raised by a ' 2255 motion regardless of whether they could 

have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 

(2003); see also United States v. Franklin, 694 F.3d, 1, 8 (11th Cir. 2012). In order 

to prevail on a constitutional claim of ineffective assistance of counsel, a defendant 

must demonstrate both that counsel=s performance was below an objective and 

reasonable professional norm and that he was prejudiced by this inadequacy. 

Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 

362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). 

In applying Strickland, the court may dispose of an ineffective assistance claim if a 

defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. 

at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v. 

Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (A[T]he court need not address the 

performance prong if the defendant cannot meet the prejudice prong, or vice versa.@).

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In determining whether counsel=s conduct was deficient, this court must, with 

much deference, consider Awhether counsel=s assistance was reasonable considering 

all the circumstances.@ Strickland, 466 U.S. at 688; see also Dingle v. Sec=y for 

Dep=t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to 

examine counsel=s performance in a highly deferential manner and Amust indulge a 

strong presumption that counsel=s conduct fell within the wide range of reasonable 

professional assistance.@ Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) 

(quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 

1305, 1315B16 (11th Cir. 2000) (discussing presumption of reasonableness of 

counsel=s conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) 

(emphasizing that petitioner was Anot entitled to error-free representation@). 

Counsel=s performance must be evaluated with a high degree of deference and 

without the distorting effects of hindsight. Strickland, 466 U.S. at 689. To show 

counsel=s performance was unreasonable, a defendant must establish that Ano 

competent counsel would have taken the action that his counsel did take.@ Gordon 

v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 

218 F.3d at 1315. When reviewing the performance of an experienced trial 

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counsel, the presumption that counsel=s conduct was reasonable is even stronger, 

because A[e]xperience is due some respect.@ Chandler, 218 F.3d at 1316 n.18.

With regard to the prejudice requirement, a defendant must establish that, but 

for counsel=s deficient performance, the outcome of the proceeding would have been 

different. Strickland, 466 U.S. at 694. AThe likelihood of a different result must 

be substantial, not just conceivable.@ Harrington v. Richter, 562 U.S. 86, 112 

(2011) (quoting Strickland). For the court to focus merely on Aoutcome 

determination,@ however, is insufficient; A[t]o set aside a conviction or sentence 

solely because the outcome would have been different but for counsel=s error may 

grant the defendant a windfall to which the law does not entitle him.@ Lockhart v. 

Fretwell, 506 U.S. 364, 369B70 (1993); Allen v. Sec=y, Fla. Dep=t of Corr., 611 F.3d 

740, 754 (11th Cir. 2010). A defendant therefore must establish Athat counsel=s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.@ Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or 

in the case of alleged sentencing errors, a defendant must demonstrate that there is a 

reasonable probability that, but for counsel=s errors, the result of the proceeding 

would have been less harsh due to a reduction in the defendant=s offense level. 

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Glover v. United States, 531 U.S. 198, 203B04 (2001). A significant increase in 

sentence is not required to establish prejudice, as Aany amount of actual jail time has 

Sixth Amendment significance.@ Id. at 203.

To establish ineffective assistance, Defendant must provide factual support 

for his contentions regarding counsel=s performance. Smith v. White, 815 F.2d 

1401, 1406B07 (11th Cir. 1987). Bare, conclusory allegations of ineffective 

assistance are insufficient to satisfy the Strickland test. See Boyd v. Comm=r, Ala. 

Dep=t of Corr., 697 F.3d 1320, 1333B34 (11th Cir. 2012); Garcia v. United States, 

456 F. App=x 804, 807 (11th Cir. 2012) (citing Yeck v. Goodwin, 985 F.2d 538, 542 

(11th Cir. 1993)); Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992); 

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Stano v. Dugger, 901 F.2d 

898, 899 (11th Cir. 1990) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

Finally, the Eleventh Circuit has recognized that given the principles and 

presumptions set forth above, Athe cases in which habeas petitioners can properly 

prevail . . . are few and far between.@ Chandler, 218 F.3d at 1313. This is because 

the test is not what the best lawyers would have done or even what most good 

lawyers would have done, but rather whether some reasonable lawyer could have 

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acted in the circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). AEven if counsel=s 

decision appears to have been unwise in retrospect, the decision will be held to have 

been ineffective assistance only if it was >so patently unreasonable that no competent 

attorney would have chosen it.=@ Dingle, 480 F.3d at 1099 (quoting Adams v. 

Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)). Regardless of how the 

standard is framed, under the prevailing case law it is abundantly clear that a moving 

defendant has a high hurdle to overcome to establish a violation of his constitutional 

rights based on his attorney=s performance. A defendant=s belief that a certain 

course of action that counsel failed to take might have helped his case does not direct 

a finding that counsel was constitutionally ineffective under the standards set forth 

above. 

An evidentiary hearing is unnecessary when Athe motion and files and records 

conclusively show that the prisoner is entitled to no relief.@ See 28 U.S.C. 

' 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); Gordon v. 

United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of 

ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 

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F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To 

be entitled to a hearing, a defendant must allege facts that, if true would prove he is 

entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 

2015). A hearing is not required on frivolous claims, conclusory allegations 

unsupported by specifics, or contentions that are wholly unsupported by the record. 

See WinthropBRedin v. United States, 767 F .3d 1210, 1216 (11th Cir. 2014) 

(explaining that Aa district court need not hold a hearing if the allegations [in a ' 2255 

motion] are . . . based upon unsupported generalizations@) (internal quotation marks 

omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even 

affidavits that amount to nothing more than conclusory allegations do not warrant a 

hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues 

can be resolved by the court without a hearing. 

Ground One—Sentencing Error under Descamps

Defendant first claims that he was improperly sentenced as a career offender 

under § 4B1.1 of the Sentencing Guidelines in violation of Descamps, because one 

of the two predicate offenses did not qualify. The Government concedes that 

Descamps is retroactive for purposes of Defendant’s § 2255 motion, his first. See

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Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016). It argues, nonetheless, 

that Defendant’s claim is procedurally barred, and without merit.

Defendant raised no opposition to being sentenced as a career offender either 

before the trial court or on direct appeal, and thus, absent a showing of cause and 

prejudice, this claim is procedurally barred. See Nyhuis, 211 F.3d at 1344. A 

meritorious claim of ineffective assistance of counsel can constitute cause. See id. 

However, it is well established that counsel’s failure to anticipate a change in the 

law does not constitute deficient performance. See Denson v. United States, 804 

F.3d 1339, 1343 (11th Cir. 2015) (citing Marquard v. Secretary, Dept. Of 

Corrections, 429 F.3d 1278 (11th Cir. 2005)); Spaziano v. Singletary, 36 F.3d 1028, 

1039 (11th Cir. 1994). In fact, there is a Awall of binding precedent that shuts out 

any contention that an attorney=s failure to anticipate a change in the law constitutes 

ineffective assistance of counsel.@ United States v. Ardley, 273 F.3d 991, 993 (11th 

Cir. 2001) (Carnes, J., concurring) (citing Spaziano, 36 F.3d at 1039; Davis v. 

Singletary, 119 F.3d 1471, 1476 (11th Cir. 1997); Jackson v. Herring, 42 F.3d 1350, 

1359 (11th Cir. 1995); Pitts v. Cook, 923 F.2d 1568, 1572–74 (11th Cir. 1991); 

Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8 (11th Cir. 1986)). If Defendant 

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cannot show that counsel was constitutionally ineffective for failing to challenge the 

application of the career offender enhancement, he cannot show “cause” for his 

failure to raise it on appeal and his claim is procedurally barred. In order to assess 

counsel’s performance in this regard, a discussion of the facts underlying 

Defendant’s claim is warranted.

In Descamps, which forms the basis for Defendant’s claim, the Supreme Court 

considered whether a conviction for burglary in violation of section 459 of the 

California Penal Code would qualify as a generic “burglary” under the enumeratedoffenses clause of definition of violent felony in the Armed Career Criminal Act 

(ACCA or Act), 18 U.S.C. § 924(e). The Court had previously defined generic 

burglary as having the elements of the “unlawful or unprivileged entry into, or 

remaining in, a building or a structure, with intent to commit a crime.” Taylor v. 

United States, 495 U.S. 575, 599 (1990). The Descamps Court stated that, to 

determine whether a past conviction is for Aburglary, arson, or extortion,@ the 

enumerated offenses in the ACCA, courts must use what is called the Acategorical 

approach.@ Descamps, 133 S. Ct. at 2281. Under this approach, the district court 

must Acompare the elements of the statute forming the basis of the defendant's 

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conviction with the elements of the 'generic' crimeCi.e., the offense as commonly 

understood.@ Id. AThe prior conviction qualifies as an ACCA predicate only if 

the statute’s elements are the same as, or narrower than, those of the generic offense.@

Id. The Descamps Court also affirmed that, in the case of a Adivisible@ statuteCone 

that sets out alternative crimes, some of which qualify as ACCA predicatesCthe 

sentencing court may apply a “modified categorical approach” to determine which 

of the statutory alternatives formed the basis of the defendant's prior conviction and 

thus whether the particular conviction qualifies as an ACCA predicate. Id. at 

2283–84. The Amodified categorical approach@ approved in Taylor and refined in 

Shepard v. United States, 544 U.S. 13 (2005), does not apply to Aindivisible@

statutesCstatutes that define the crime at issue broadly rather than setting forth 

alternative elements. Id. at 2281, 2285–86. Where an Aindivisible@ burglary 

statute defines Aburglary@ more broadly than the elements for generic burglary, Aa 

conviction under that statute is never for generic burglary,@ and a district court 

should not enhance a sentence under the enumerated crimes clause of the ACCA 

based on such a burglary conviction. Id. at 2293; see also Mathis v. United States, 

No. 15-6092, 2016 WL 3434400 (U.S. June 23, 2016). Reiterating that the 

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modified categorical approach may be applied only “when a prior conviction is for 

violating a so-called ‘divisible statute,’” the Court explained that a divisible statute 

is one that:

Sets out one or more elements of the offense in the alternative—for 

example, stating that burglary involves entry into a building or an 

automobile. If one alternative (say, a building) matches an element in 

the generic offense, but the other (say, an automobile) does not, the 

modified categorical approach permits sentencing courts to consult a 

limited class of documents, such as indictments and jury instructions, 

to determine which alternative formed the basis of the defendant’s prior 

conviction. The court can then do what the categorical approach 

demands: compare the elements of the crime of conviction (including 

the alternative element used in the case) with the elements of the 

generic crime. 

Descamps, 133 S. Ct. at 2281. Using this analysis, the Descamps Court concluded 

that because section 459 of the California Penal Code did not contain “alternative” 

elements, and it criminalized a broader range of conduct than the generic offense of 

burglary, a conviction under that statute did not qualify as a predicate offense under 

the ACCA even when the facts of the underlying case satisfied the generic elements 

of burglary. Id. at 2281–85. In sum, in accordance with Descamps, sentencing 

courts may apply the modified categorical approach to determine whether a prior

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conviction qualifies as an ACCA predicate offense only when the statute defining 

the offense of conviction sets out one or more elements of the offense in the 

alternative, and the statute is divisible. See also Mathis, 2016 WL 3434400. 

Here, the Government takes the position that Defendant’s prior burglary 

conviction of “burglary of habitation intend to commit theft” in violation of section 

30.02 of the Texas Penal Code qualifies as a violent felony under either the 

categorical approach or the modified categorical approach. 

Texas Penal Code section 30.02 defines burglary as follows: 

(a) A person commits an offense if, without the effective consent of the 

owner, the person:

(1) enters a habitation, or a building (or any portion of a building) 

not then open to the public, with intent to commit a felony, theft, or an 

assault; or

(2) remains concealed, with intent to commit a felony, theft, or 

an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to 

commit a felony, theft, or an assault.

(b) For purposes of this section, “enter” means to intrude:

(1) any part of the body; or

(2) any physical object connected with the body.

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(c) Except as provided in Subsection (d), an offense under this section 

is a:

(1) state jail felony if committed in a building other than a 

habitation; or

(2) felony of the second degree if committed in a habitation.

(d) An offense under this section is a felony of the first degree if:

(1) the premises are a habitation; and

(2) any party to the offense entered the habitation with intent to 

commit a felony other than felony theft or committed or attempted to 

commit a felony other than felony theft.

Tex. Penal Code § 30.02.3

The Eleventh Circuit has not had occasion to analyze section 30.02 of the 

Texas Penal Code to make a determination of whether a conviction under any portion 

of this statute meets the definition of generic burglary. See Taylor v. Warden, FCI 

Marianna, 557 F. App’x 911 (11th Cir. 2014) (rejecting petitioner’s attempt to 

challenge ACCA enhancement based on Texas burglary convictions under 

30.02(a)(3) via § 2241, when this claim could have been raised on direct appeal or 

in his § 2255 motion). There are numerous cases from the Fifth Circuit, however,

 

3 The definition of burglary currently available on Westlaw is identical to the version provided by 

the Government in Exhibit C (ECF No. 54-3).

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that are instructive. That court has repeatedly held that a violation of § 30.02(a)(1)

constitutes a “generic burglary,” which is then properly classified as a violent felony 

under the ACCA or the Sentencing Guidelines. See United States v. Herrold, 813 

F.3d 595, 599 (5th Cir. 2016) (holding that burglary of a habitation under 30.02(a)(1)

is a predicate offense under ACCA, and declining to address argument that 

“habitation” includes “vehicles adapted for overnight use”) (citing United States v. 

Silva, 952 F.2d 157 (5th Cir. 1992)); United States v. Conde-Castaneda, 753 F.3d 

172, 176–78 (5th Cir. 2014) (reiterating that § 30.02 is a divisible statute and that 

§ 30.02(a)(1) is properly considered burglary of a dwelling under the Sentencing 

Guidelines); United States v. Fearance, 82 F. App’x 416 (5th Cir. 2014) (affirming 

that a violation of § 30.02(a)(1) qualifies as a violent felony under the ACCA);

United States v. Hageon, 418 F. App’x 295, 299 (5th Cir. 2011) (holding that 

burglary of a habitation in violation of Texas Penal Code § 30.02(a)(1) meets the 

definition of burglary and thus qualifies as a violent felony under the ACCA); United 

States v. Eddins, 451 F. App’x 395, 396 (5th Cir. 2011) (holding that a conviction 

for burglary, in which the charging documents tracked the language of § 30.02(a)(1),

constitutes generic burglary for the purposes of the ACCA). On the other hand, 

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convictions under § 30.02(a)(3), which subsection does not contain the element of 

specific intent required to meet the definition of generic burglary, are not violent 

felonies under the enumerated clause of the ACCA or the Sentencing Guidelines. 

See United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (contrasting 

convictions under Texas Penal Code § 30.02(a)(1) and (a)(3), and finding that 

convictions under § 30.02(a)(3) do not qualify as generic burglaries and are not 

violent felonies under 18 U.S.C. § 924(e)); Conde-Castaneda, 753 F.3d at 176 (citing 

Constante for the proposition that § 30.02(a)(3) is not a “burglary of a dwelling”);

United States v. Emeary, 794 F.3d 526, 529 (5th Cir. 2015) (holding that after 

Johnson v. United States, 135 S. Ct. 2551 (2015) it is clear that convictions under 

§ 30.02(a)(3) are not violent felonies under the ACCA). 

In this case, the question is under which portion of the divisible Texas burglary 

statute Defendant’s conviction arose. To answer this question, the court must apply 

the modified categorical approach, consulting Shepard documents to determine 

which of the three alternatives formed the basis for Defendant’s conviction. The 

Government has attached relevant documents to its response to Defendant’s 

supplemental pleading (ECF No. 66).

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The Indictment in Defendant’s Texas case charges that he “intentionally and 

knowingly, without the effective consent of Nila Ortiz, the owner, enter[ed] a 

habitation and did then and there commit and attempt to commit a felony, to wit: 

Criminal Mischief Over $1,500 Under $20,000” (ECF No. 66-1 at 1). The 

indictment appears to track the language of § 30.02(a)(3) as the word “intentionally” 

modifies Defendant’s entry, and does not ascribe any intent to his actions upon 

entering the habitation. 

Defendant’s original Judgment of Conviction in the 41st District Court, El 

Paso County, Texas, dated November 13, 2008, identifies the offense of conviction 

as “Burglary Habitation Intend Commit Theft; a Lesser Included Offense” (ECF No. 

66-2 at 1–2). To the extent this ascribes intent to Defendant’s actions, it appears to 

contradict the indictment referenced above. The “Statute for Offense” was 

identified as “30.02(c)(2)PC,” which is a reference to the subsection describing 

applicable penalties rather than proscribed conduct. A conviction pursuant to this 

section neither requires nor precludes a finding of intent. Similarly, § 30.02(d) 

applies to habitation offenses involving both intent to commit a felony other than 

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felony theft or habitation offenses where a felony other than felony theft was 

committed, without intent. 

The Incident/Investigation report which provides factual detail about the 

offense conduct is not instructive with respect to the issue of Defendant’s intent at 

the time he entered the habitation (ECF 66-5). It indicates that the offender had 

made entry into the residence and removed the “listed item” (which is not identified 

on the single page report). It also notes that during this process the offender 

“intentionally did $8,880.00 amount of damge (sic) to property inside the residence” 

(ECF No. 66-5). The report references outstanding warrants for Burglary 

Habitation and Evading with a motor vehicle. From comparing the Incident Report 

and the PSR, it appears that Defendant was charged with more than one count of 

burglary. The PSR identifies a burglary conviction in Cause No. 20080D03825, 

which is the number handwritten on the bottom of the Incident Report, but the 

description of this offense references a completely different set of facts than was 

described in the Incident Report (ECF No. 44, PSR ¶ 43). According to the PSR, 

Defendant allegedly attempted to forcibly enter the home of his ex-partner, although 

he fled before securing entry. When he returned, law enforcement gave chase, but 

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he ultimately eluded them. The PSR reflects that a separate Burglary of Habitation 

charge was dismissed in Cause No. 20080D03874, due to Defendant’s guilty plea to 

Evading Arrest/Detention with Vehicle in that case (ECF No. 44, PSR ¶ 43). From 

a consideration of the record as a whole, it seems that the PSR describes the offense 

conduct in Cause No. 20080D03874, which happened at the same time as the 

Evading Arrest, rather than 20080D03825. In any event, neither document 

conclusively answers the question of intent.

The Government has also provided a copy of “Defendant’s Request to 

Plea[d] Guilty and Waiver of Certain Rights, and the State’s Consent and 

Recommendation” (ECF No. 66-6). This document references “Burglary of 

Habitation” in the caption, without describing the charge to which Defendant 

intended to plead (ECF No. 66-6). What might have been the pertinent sentence in 

the document signed by Defendant appears to omit significant information as it states 

“[i]t is my desire to enter a plea of guilty to the charge of and waive the right of 

trial by jury in the above-entitled and numbered cause” (ECF No. 66-6 at 1). There 

is no reference to the applicable statute. 

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Another document, the “Acknowledgement of Defendant’s Right [sic]; 

Admonishment, Waiver of Rights and Judicial Confession” (“Acknowledgment”),

repeatedly identifies the offense conduct merely as Burglary of Habitation (ECF No. 

66-7). This document references neither the specific statute under which 

Defendant was convicted nor reiterates the elements of the offense, and there is no 

mention of “intent.” Similarly, the document titled “Terms and Conditions of 

Community Supervision” identifies the offense only as “Burglary of Habitation”

(ECF No. 66-8). The court notes, however, that through the Acknowledgment, 

Defendant admitted “all of the allegations in the indictment contained in this cause”

(ECF No. 66-7 at 1). As observed above, the indictment did not ascribe “intent” to 

Defendant’s actions after his unlawful entry into the habitation, which appears to 

track § 30.02(a)(3). 

Finally, and most instructive, is the Nunc Pro Tunc Judgment of Conviction 

dated February 3, 2009, which appears to be an amended judgment in Defendant’s 

Texas criminal case (ECF No. 66-9). This document again identifies the “Statute 

for Offense” as § 30.02(c)(2), the penalty portion of the Burglary statute (ECF No. 

66-9 at 1). However, the section of the Nunc Pro Tunc Judgment designated for 

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“Offense for which Defendant convicted” had been amended to read “Burglary of 

Habitation” whereas in the original judgment it read “Burglary Habitation Intend 

Commit Theft; a Lesser Included Offense” (compare ECF No. 66-2 and ECF No. 

66-9). The omission of any reference to intent provides strong support for the 

conclusion that Defendant’s conviction arose under § 30.02(a)(3), which is not a 

crime of violence, and thus that it should not have been used to support the 

application of the career offender enhancement. See Emeary, 794 F.3d at 529; 

Constante, 544 F.3d at 587. 

As noted above, the Government takes the position that Defendant’s challenge 

to the application of the career offender enhancement is procedurally defaulted 

because it was not raised previously. The Government is correct that Defendant 

did not object to the enhancement, and in fact, neither the court nor the parties made 

any reference to Defendant’s status as a career offender at the brief sentencing 

proceeding (ECF No. 53). The undersigned disagrees with the Government’s 

suggestion that counsel would have been required to “predict” a change in the law 

in order to raise such an objection. The Firth Circuit’s decision in Constante, 

holding that a conviction under § 30.02(a)(3) was not a crime of violence under the 

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ACCA, was decided in 2008, well before Defendant’s sentencing. The guidelines 

definition of “crime of violence” tracks the language of the ACCA. There is no 

record evidence that counsel made any kind of inquiry into the circumstances 

surrounding Defendant’s prior conviction, and in fact this alleged failure is 

encompassed in the ineffective assistance of counsel claim Defendant raised in 

Ground 2. Furthermore, the difference in the characterization of Defendant’s 

burglary offense between the “Final” and “Second Revised Final” PSRs arguably 

would have placed a reasonable attorney on notice that an inquiry was warranted, if 

not also an objection to preserve the record (compare ECF No. 40 with ECF No. 44). 

Limited investigation could have revealed the existence of the Nunc Pro Tunc 

judgment, and that the amendment to the PSR reflected in the Second Addendum 

thereto was in error (ECF No. 44, PSR ¶ 106). 

In light of a colorable argument that counsel did not act reasonably and that 

his performance was deficient in this regard, the undersigned declines to find the 

procedural bar applicable in this case. Having so found, the undersigned concludes 

that Defendant is entitled to reconsideration of whether his sentence is subject to

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career offender enhancement.4 See Glover v. United States, 531 U.S. 198, 203B04 

(2001). 

Ground Two—Ineffective Assistance of Counsel at Sentencing

In his second claim for relief, Defendant argues that he was “completely 

denied the assistance of counsel for [his] sentencing” (ECF No. 47 at 5). He claims 

that counsel spoke briefly with him about one month before sentencing to confirm 

that the information in Defendant’s PSR was correct, but otherwise did nothing but 

inform Defendant that counsel could not help him, and that Defendant would be 

sentenced to no less than twenty years in prison (as a result of the § 851 

enhancement) unless he cooperated with the Government. Defendant also claims 

that counsel never discussed sentencing issues with him either prior to sentencing or 

prior to his plea of guilty,5 never researched facts or law in his case, never objected 

to the application of the career offender enhancement or anything about the PSR, 

 

4 The court nonetheless˗˗and without hesitation˗˗declines Defendant’s invitation to ascribe 

nefarious intent to the Government’s alleged failure to ensure that the proper version of the 

Shepard documents in Defendant’s Texas case were made part of the record. 

5 The court notes that this statement is contradicted by both Defendant’s and counsel’s assurances 

to the court during the plea colloquy (ECF No. 52 at 13–14, 16).

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never made any arguments in mitigation, and failed to hold the Government’s case 

to any meaningful adversarial testing at sentencing. 

In response, the Government asserts that Defendant’s ineffective assistance of 

counsel claim is time barred. Judgment was entered in this case on November 10, 

2010, and Defendant did not appeal (ECF No. 42). Therefore, absent circumstances 

not present here, the one-year time limitation for filing an ineffective assistance of 

counsel claim pursuant to 28 U.S.C. § 2255 expired on November 24, 2011. The 

instant motion was not filed until August 16, 2013 (ECF No. 47 at 13). 

Unless Defendant establishes his entitlement to equitable tolling, his 

independent ineffective assistance of counsel claims are time barred. Jones v. 

United States, 304 F.3d 1035, 1038 (11th Cir. 2002) (citing Akins v. United States, 

204 F.3d 1086, 1089 (11th Cir. 2000)). Equitable tolling is appropriate when a 

§ 2255 motion is untimely because of “extraordinary circumstances that are both 

beyond [the defendant’s] control and unavoidable even with diligence.” Johnson v. 

United States, 340 F.3d 1219, 1226 (11th Cir. 2003) (citing Drew v. Dep’t of Corr., 

297 F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269, 

1271 (11th Cir. 1999)). Otherwise stated, “a litigant seeking equitable tolling bears 

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the burden of establishing two elements: (1) that he has been pursuing his rights 

diligently, and (2) that some extraordinary circumstance stood in his way.” Holland 

v. Florida, 560 U.S. 631, 649 (2010) (citation omitted); Hutchinson v. Florida, 677 

F.3d 1097, 1100 (11th Cir. 2012). It only applies in “truly extraordinary 

circumstances.” Johnson, 340 F.3d at 1226 (citing Jones, 304 F.3d at 1039–40; 

Drew, 297 F.3d at 1286). The onus is on the moving defendant to show that he is 

entitled to this extraordinary relief. Johnson, 340 F.3d at 1226, Jones, 304 F.3d at 

1040. The court will not relieve a petitioner who has sat upon his rights. United 

States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000) (citing Coleman v. Johnson, 

184 F.3d 398, 402–03 (5th Cir. 1999)). There is nothing in the record which would 

suggest that Defendant is entitled to rely on the doctrine of equitable tolling as it 

pertains to his ineffective assistance of counsel claim. Thus, Defendant’s second 

ground for relief is untimely. 

The court’s review of the record reveals that even if Defendant’s ineffective 

assistance of counsel claim were deemed timely, with the exception of the objection 

to the career offender adjustment discussed in the previous section, he has failed to 

specify what actions counsel could or should have taken that would have altered the 

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outcome of the proceedings. Such conclusory allegations do not entitle him to 

relief. 

Ground Three—Judicial Fact-Finding at Sentencing

Defendant’s final claim is that his sentence was imposed in violation of the 

Fifth and Sixth Amendments to the U.S. Constitution because the court sentenced 

him based on facts it found at sentencing, as opposed to facts found by a jury beyond 

a reasonable doubt. Defendant refers specifically to the fact of his prior conviction, 

which, he asserts, was not stipulated in the plea agreement.

The Government again takes the position that this ground for relief is time 

barred because it could have been raised within the statutory deadline for filing 

§ 2255 motions. The Government’s argument is well taken. And, even if the 

claim were not time barred, to the extent Defendant relies upon Alleyne v. United 

States, 570 U.S. __, 133 S. Ct. 2151 (2013) in support of his claim, such reliance is 

misplaced. 

In Apprendi v. New Jersey, the Supreme Court held that other than the fact of 

a prior conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum, must be submitted to a jury and proven beyond a 

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reasonable doubt. Apprendi, 530 U.S. 466, 490 (2000). In Alleyne, the Supreme 

Court extended this holding by ruling that any fact that increases the minimum 

sentence for a crime, other than the fact of a prior conviction, is an element of the 

offense that must be submitted to the jury and proven beyond a reasonable doubt. 

The fact of a prior conviction is not an “element” that must be found by a jury. See

United States v. Harris, 741 F.3d 1245, 1249 (11th Cir. 2014) (citing AlmendarezTorres, 523 U.S. 224, 226–27 (1998); Alleyne, 133 S. Ct. at 2160 n.1; Descamps, 

133 S. Ct. 2276, 2288 (observing that an increase in the maximum statutory sentence 

based on judicial factfinding that “went beyond merely identifying a prior 

conviction” would “raise serious Sixth Amendment concerns.”); United States v. 

Charles, 757 F.3d 1222, 1225 (11th Cir. 2014); United States v. Jones, 603 F. App’x 

781, 782 (11th Cir. 2015) (citing Harris). Defendant’s minimum mandatory 

sentence was based upon his prior conviction. Therefore, even if this ground for 

relief were timely, Alleyne does not afford him relief. 

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that 

“[t]he district court must issue or deny a certificate of appealability when it enters a 

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final order adverse to the applicant,” and if a certificate is issued “the court must 

state the specific issue or issues that satisfy the showing required by 28 U.S.C. 

§ 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues 

a certificate of appealability. Rule 11(b), § 2255 Rules.

In this case, the undersigned recommends that relief be granted with respect 

to only one claim, and denied as to Defendant’s second and third grounds for relief. 

With respect to the latter two claims, the court finds no substantial showing of the 

denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 

483–84 (2000) (explaining how to satisfy this showing) (citation omitted). 

Therefore, if this recommendation is adopted, it is also recommended that the court 

deny a certificate of appealability on Grounds Two and Three in Defendant’s § 2255 

motion in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order, 

the court may direct the parties to submit arguments on whether a certificate should 

issue.” If there is an objection to this recommendation by either party, that party 

may bring this argument to the attention of the district judge in the objections 

permitted to this report and recommendation.

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Based on the foregoing, it is respectfully RECOMMENDED that:

1. The motion to vacate, set aside, or correct sentence (ECF No. 47) be 

GRANTED as to Ground One, but only to the extent that Defendant should be 

granted a new sentencing hearing at which the issue of whether he is a career 

offender under U.S.S.G. § 4B1.1 should be considered anew.

2. The motion to vacate, set aside or correct sentence (ECF No. 47) be 

DENIED as to Grounds Two and Three and that a certificate of appealability as to 

these claims be DENIED.

At Pensacola, Florida, this 11th day of July 2016.

 s/Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be 

filed within fourteen (14) days after being served a copy thereof. Any different 

deadline that may appear on the electronic docket is for the court’s internal use 

only, and does not control. A copy of objections shall be served upon all other 

parties. If a party fails to object to the magistrate judge's findings or 

recommendations as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal the district 

court's order based on the unobjected-to factual and legal conclusions. See 

11th Cir. Rule 3-1; 28 U.S.C. § 636.

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