* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50954

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT DE LA GARZA,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-95-CV-0804

- - - - - - - - - -

September 2, 1998

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

 Robert De La Garza, federal inmate # 59844-080, appeals the

district court’s dismissal of his 28 U.S.C. § 2255 motion. De La

Garza’s motion for leave to file a reply brief out-of-time is

GRANTED. 

De La Garza challenges the validity of his guilty plea,

which included a waiver of the right to appeal and of the right

to challenge his sentence in a postconviction proceeding. De La

Garza contends that counsel’s ineffective assistance caused him

to enter an invalid plea. He also contends that he did not 
No. 96-50954

-2-

understand that he was waiving the right to appeal his sentence

and the right to challenge the sentence in a 28 U.S.C. § 2255

motion. 

Generally, the validity of a guilty plea cannot be attacked

on collateral review unless the issue is first raised on direct

review. See Bousley v. United States, 118 S. Ct. 1604, 1610

(1998). However, because De La Garza asserts that counsel’s

ineffective assistance prompted him to enter a plea without

understanding the rights he was waiving, the claim is addressed. 

See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)

(an ineffective-assistance-of-counsel claim is of constitutional

magnitude and satisfies the cause and prejudice standard for

collateral review).

A defendant may waive his right to appeal and to pursue

postconviction relief as part of a plea agreement, but the waiver

must be informed and voluntary. United States v. Wilkes, 20 F.3d

651, 653 (5th Cir. 1994). When the record clearly shows that the

movant read and understood the plea agreement and that he raised

no question regarding the waiver-of-appeal provision, the plea

agreement is upheld. United States v. Portillo, 18 F.3d 290,

292-93 (5th Cir. 1994).

The record of De La Garza’s rearraignment demonstrates that

he entered a knowing and voluntary guilty plea. De La Garza

stated under oath at the rearraignment that he understood, and

agreed to, all the terms in the plea agreement. Solemn

declarations in open court carry a strong presumption of verity. 

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Furthermore, De
No. 96-50954

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La Garza was not denied a direct appeal or consideration of his

§ 2255 claims.

De La Garza correctly contends that the waiver provision in

his plea agreement does not preclude consideration of

ineffective-assistance claims in a § 2255 proceeding. De La

Garza contends that trial counsel provided ineffective assistance

by failing to challenge the use of his state drug convictions to

sentence him as a career offender on the grounds that the

convictions were related and consolidated, by failing to

investigate and discover defenses to the use of the state court

convictions to sentence him as a career offender, and for failing

to make the district court aware of Question 86 of the Most

Frequently Asked Questions about the Sentencing Guidelines (MFAQ

86). The district court, in an alternative holding, accepted the

magistrate judge’s report and recommendation, which rejected De

La Garza’s ineffective-assistance claims on the merits. We have

reviewed the record and the district court's opinion and find no

reversible error. Accordingly, we AFFIRM the district court's

denial of § 2255 relief on De La Garza’s ineffective-assistance

claims for the reasons accepted by the district court. See De La

Garza v. United States, No. SA-95-CV-0804 (W.D. Tex. Nov. 27,

1996).

De La Garza contends also that counsel provided ineffective

assistance by failing to challenge the validity of his state

court convictions as unconstitutional and based on his allegation

that he was denied a direct appeal in state court. De La Garza

has not shown prejudice from counsel’s alleged failure to raise
No. 96-50954

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these issues. See Strickland v. Washington, 466 U.S. 668, 687

(1984)(ineffective assistance requires showing of deficient

performance and prejudice). De La Garza’s conclusional

assertions are insufficient to establish ineffective assistance. 

Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)

(ineffectiveness claim based on speculation or conclusional

rhetoric will not warrant relief). In addition, the record

refutes De La Garza’s assertion that counsel in the state court

proceedings failed to inform him of the appeal period. Moreover, 

De La Garza has not shown that the district court would have

exercised its discretion to entertain challenges to the state

court convictions. See United States v. Canales, 960 F.2d 1311,

1316 (5th Cir. 1992); see United States v. Shannon, 21 F.3d 77,

82 (5th Cir. 1994). 

De La Garza’s claims that appellate counsel provided

ineffective assistance by failing to raise the MFAQ 86 issue and

by failing to assert that counsel in the district court provided

ineffective assistance are without merit. De La Garza has not

shown that counsel in the district court provided ineffective

assistance and advisories such as that presented by MFAQ 86 are

not precedent and are not binding on the courts. See United

States v. Kings, 981 F.2d 790, 795 n.10 (5th Cir. 1993).

We will not consider De La Garza’s contention that his

attorney coerced him into pleading guilty, which is raised for

the first time in a reply brief. See Stephens v. C.I.T.

Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992).
No. 96-50954

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Finally, we do not consider De La Garza’s repeated challenge

to the district court’s application of the career offender

provision. We rejected that argument on direct appeal. See

United States v. De La Garza, No. 92-5657 (5th Cir. June 23, 1993

(unpublished); see United States v. Kalish, 780 F.2d 506, 508

(5th Cir. 1986)(issues raised and disposed of in a previous

appeal are not considered under § 2255).

AFFIRMED; MOTION GRANTED.