IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PEDRO PEREZ-HERNANDEZ, :

Petitioner, : 

v. : CIVIL ACTION NO. 14-00229-WS

UNITED STATES OF AMERICA, : CRIMINAL ACTION NO. 11-00011-WS

Respondent.

REPORT AND RECOMMENDATION

Pedro Perez-Hernandez, proceeding pro se, has filed a Motion to Vacate, Set 

Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 107) and a motion to amend his 

original motion (Doc. 135) challenging this Court’s judgment against him in the abovestyled criminal action. The United States of America (“Respondent”) has timely filed 

responses in opposition to the § 2255 motion as amended (Docs. 113 & 137), and PerezHernandez has filed two reply briefs (Docs. 133 & 138) to the responses filed by the 

United States. 

Perez-Hernandez’s § 2255 motion is now under submission and is ripe for 

adjudication. This matter has been referred to the undersigned Magistrate Judge for the 

holding of an evidentiary hearing, if necessary, and for entry of a report and 

recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 

636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings for the 

United States District Courts, and S.D. Ala. General L.R. 72(a)(2)(R). Upon 

consideration, and for the reasons stated herein, the undersigned will RECOMMEND

that Perez-Hernandez’s § 2255 motion, as amended, be DENIED and that this matter be 

DISMISSED with prejudice. The undersigned further RECOMMENDS that PerezCase 1:11-cr-00011-WS-C Document 146 Filed 11/24/15 Page 1 of 32
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Hernandez be found not entitled either to a Certificate of Appealability or to proceed in 

forma pauperis on appeal.

I. Background

In January 2011, Perez-Hernandez was charged for possessing a firearm after 

having been convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1) (Doc. 1.)

Perez-Hernandez retained attorney James Byrd, Esq., to represent him (See, e.g., Doc. 9.)

and on June 21, 2011, pursuant to a written plea agreement (Doc. 18), entered a plea of 

guilty to the sole count of the indictment. (Doc. 19). 

Two days prior to sentencing, on October 17, 2011, Perez-Hernandez filed a pro se

motion to dismiss his retained attorney (Doc. 28). After a hearing on the issue of 

continued representation, the oral motion to withdraw submitted by Byrd was granted 

(Doc. 31) and a CJA Panel Attorney, Richard Alexander, Esq., was appointed to 

represent the defendant. (Id.) With the assistance of Alexander, Perez-Hernandez filed 

a motion to withdraw his guilty plea and to continue the sentencing hearing (Doc. 33). 

The Court granted the request for a continuance of the sentencing hearing and required 

the defendant to supplement his motion to withdraw his guilty plea by providing 

specific details to support the generalities contained therein (Doc. 34).1 PerezHernandez declined to submit additional information that would explain why he 

 1 “As defendant is well aware, all of these topics were fully covered in the Rule 11 colloquy 

before the undersigned accepted his plea. If defendant now wishes to renounce the responses he 

gave under oath at the guilty plea hearing, he must explain in detail why. Mere conclusory 

statements about not receiving proper information, not understanding, and having no choice are 

diametrically opposite to his sworn statements at the guilty plea hearing. ... [T]he Court will not 

reflexively grant him a hearing absent some reason to believe that such would be constructive. 

Accordingly, defendant is ordered to supplement his motion ... with specific details to support 

the generalities in his motion. This supplement ... must explain not only how defendant contends 

his previous counsel was deficient at the guilty plea stage but also why defendant answered 

falsely during the Rule 11 colloquy.”

(Doc. 34, at 2)

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wished to renounce the responses he made under oath during the guilty plea hearing 

and his motion to withdraw his guilty plea was thereafter denied on January 6, 2012 

(Doc. 48).

On January 19, 2012, following a sentencing hearing with assistance of counsel 

and the services of an interpreter, Perez-Hernandez was sentenced to forty-six months 

imprisonment, followed by three years of supervised release. (Doc. 69) Richard 

Alexander was allowed to withdraw (Doc. 54) and CJA Attorney Richard Shields, Esq.,

was appointed to represent Perez-Hernandez on appeal (Docs. 55 & 56). The judgment 

of Perez-Hernandez’s conviction and sentence was entered January 31, 2012. (Doc. 69). 

Even though the appeal filed by Perez-Hernandez only challenged the denial of 

his motion to withdraw his guilty plea (Doc. 84), it clearly involved several issues that 

are raised in this motion filed pursuant to § 2255.

2

 That appeal was decided against 

Perez-Hernandez on September 24, 2012 (Id. at 6, see also Doc. 87) and his petition for 

certiorari was denied on October 7, 2013 (Doc. 107). Perez-Hernandez filed his present 

§ 2255 motion on May 23, 2014.3 (See Id.).

II. Applicable Law

 2 “Importantly, Perez-Hernandez waited five months after pleading guilty to move to withdraw his plea 

and did not raise it when he filed his motion to remove counsel. When he later sought to withdraw his 

plea, instead of providing substantial reasons for his need to do so, Perez-Hernandez offered conclusory 

allegations about his original counsel’s deficiency. Perez-Hernandez did not clarify how his counsel was 

coercive or otherwise deficient. And, although he stated that he was confused and afraid, he did not 

describe the nature of his confusion or the source of his fear. Further, Perez-Hernandez never explained 

why he testified, unequivocally, that he understood the nature of the charge against him, that he agreed 

with the government’s factual proffer, and that he received adequate counsel. ... In light of these 

statements, which Perez-Hernandez has not contradicted with any specificity, the district court

reasonably found that Perez-Hernandez’s guilty plea was made knowingly, voluntarily, and with close 

assistance of counsel.” Doc. 84 at 5-6.

3 The Government does not contest that Perez-Hernandez’s original motion (Doc. 107) or his amendment 

(Doc. 135) were timely filed under 28 U.S.C. § 2255(f) (see Docs. 113 & 137).

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A. General Standards Under § 2255. Section 2255 provides, in relevant 

measure, as follows: “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. . . . If 

the court finds that the judgment was rendered without jurisdiction, or that the 

sentence imposed was not authorized by law or otherwise open to collateral attack, or 

that there has been such a denial or infringement of the constitutional rights of the

prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate 

and set the judgment aside and shall discharge the prisoner or resentence him or grant a 

new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(a) & (b).

Section 2255 thus “permits a federal prisoner to bring a collateral challenge by 

moving the sentencing court to vacate, set aside, or correct the sentence[,]” WinthropRedin v. United States, 767 F.3d 1210, 1215-1216 (11th Cir. 2014) (citation omitted), and 

courts in this Circuit are to “liberally construe” such pro se applications for relief, id. at 

1215.

Once a petitioner files a § 2255 motion, “[u]nless the motion and the files 

and records of the case conclusively show that the prisoner is entitled to 

no relief, the court shall ... grant a prompt hearing thereon, determine the 

issues and make findings of fact and conclusions of law with respect 

thereto.” [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary 

hearing if he “alleges facts that, if true, would entitle him to relief.” Aron[ 

v. United States], 291 F.3d [708,] 715 [(11th Cir. 2002)] (quoting Holmes v. 

United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “[A] petitioner need 

only allege—not prove—reasonably specific, non-conclusory facts that, if 

true, would entitle him to relief.” Id. at 715 n.6. However, a district court 

need not hold a hearing if the allegations are “patently frivolous,” “based 

upon unsupported generalizations,” or “affirmatively contradicted by the 

record.” Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 

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519, 520–21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 

1239 (11th Cir. 2004) (“Because the ... affidavits submitted by Lynn 

amount to nothing more than mere conclusory allegations, the district 

court was not required to hold an evidentiary hearing on the issues and 

correctly denied Lynn's § 2255 motion.”).

Id. at 1216 (footnote omitted).

It is clear that “a collateral challenge, such as a § 2255 motion, may not be a 

surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.) (per 

curiam) (citing Frady, 456 U.S. at 165, 102 S.Ct. at 1593 (collecting cases)), cert. denied, 543 

U.S. 891, 125 S.Ct. 167, 160 L.Ed.2d 154 (2004). This is in large measure because “[o]nce 

the defendant's chance to appeal has been waived or exhausted,” a court is “entitled to 

presume he stands fairly and finally convicted, especially when, as here, he already has 

had a fair opportunity to present his federal claims to a federal forum.” United States v. 

Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592 & 1592-1593, 71 L.Ed.2d 816 (1982). Thus, 

“[b]ecause collateral review is not a substitute for a direct appeal, the general rules have 

developed that: (1) a defendant must assert all available claims on direct appeal, and (2) 

relief under 28 U.S.C. § 2255 is reserved 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. Accordingly, a nonconstitutional error that may justify reversal on direct appeal does not generally 

support a collateral attack on a final judgment, unless the error (1) could not have been 

raised on direct appeal and (2) would, if condoned, result in a complete miscarriage of 

justice.” Lynn, supra, 365 F.3d at 1232-1233 (internal citations, quotation marks, and 

footnote omitted).

Under the procedural default rule, a defendant generally must 

advance an available challenge to a criminal conviction or sentence on 

direct appeal or else the defendant is barred from presenting that claim in 

a § 2255 proceeding. This rule generally applies to all claims, including 

constitutional claims. 

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A defendant can avoid a procedural bar only by establishing one of 

the two exceptions to the procedural default rule. Under the first 

exception, a defendant must show cause for not raising the claim of error 

on direct appeal and actual prejudice from the alleged error. Under the 

second exception, a court may allow a defendant to proceed with a § 2255 

motion despite his failure to show cause for procedural default if a 

constitutional violation has probably resulted in the conviction of one who 

is actually innocent.

Id. at 1234-1235 (internal citations, quotation marks, and footnote omitted).

B. Pleading Requirements Under § 2255. The rules that govern motions 

filed under 28 U.S.C. § 2255 specifically require that the motion: (1) specify all the 

grounds for relief available to the moving party; (2) state the facts supporting each 

ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; 

and (5) be signed under penalty of perjury by the movant or by a person authorized to 

sign it for the movant. Rule 2(b), Rules Governing Section 2255 Proceedings for the 

United States District Courts, 28 U.S.C. foll. § 2255. The Appendix of Forms for these 

rules contains instructions and a form (which was used in this case) designed to assist 

pro se parties with the pleading requirements.

Those seeking to have their guilty pleas vacated and requesting a trial, as is the 

request made by Perez-Hernandez, cannot simply list their claims in the hope that the 

court will develop them on their behalf. Holmes v. United States, 876 F.2d 1545, 1553 

(11th Cir.1989) (no hearing required on claims “which are based on unsupported 

generalizations”); Rodriguez v. United States, 473 F.2d 1042, 1043 (5th Cir.1973) (no 

hearing required where petitioner alleged no facts to establish truth of his claims 

beyond bare conclusory allegations)). It is clear and reasonable that

[t]he § 2254 Rules and the [28 U.S.C.] § 2255 Rules mandate “fact 

pleading” as opposed to “notice pleading,” as authorized under Federal 

Rule of Civil Procedure 8(a). Coupled with the form petition or motion, 

the federal rules give the petitioner or movant ample notice of this 

difference. If, for example, Rule 2(c)(1) and (2) of the § 2254 Rules should 

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cause a petitioner (or his counsel) to doubt what the words “specify all 

grounds” and “state the facts supporting each ground” mean, the 

CAUTION contained in paragraph (9) of the “Instructions” should 

remove such doubt. As the Supreme Court has observed, “[h]abeas corpus 

petitions must meet heightened pleading requirements, see 28 U.S.C. § 

2254 Rule 2(c).” McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 2572, 

129 L.Ed.2d 666 (1994).

The reason for the heightened pleading requirement—fact pleading—is 

obvious. Unlike a plaintiff pleading a case under Rule 8(a), the habeas 

petitioner ordinarily possesses, or has access to, the evidence necessary to 

establish the facts supporting his collateral claim; he necessarily became 

aware of them during the course of the criminal prosecution or sometime 

afterwards. The evidence supporting a claim brought under the doctrine 

set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 

(1963), for example, may not be available until the prosecution has run its 

course. The evidence supporting an ineffective assistance of counsel claim 

is available following the conviction, if not before. Whatever the claim, 

though, the petitioner is, or should be, aware of the evidence to support 

the claim before bringing his petition.

Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) (footnote omitted).

C. Effect of Guilty Plea. “A defendant who enters a plea of guilty waives all 

nonjurisdictional challenges to the constitutionality of the conviction, and only an attack 

on the voluntary and knowing nature of the plea can be sustained.” Wilson v. United 

States, 962 F.2d 996, 997 (11th Cir. 1992) (citation omitted); see also, e.g., United States v. 

Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) (“‘A guilty plea, since it admits all the 

elements of a formal criminal charge, waives all non-jurisdictional defects in the 

proceedings against a defendant.’”); United States v. Saac, 632 F.3d 1203, 1208 (11th Cir.) 

(“‘Generally, entering a guilty plea waives a defendant's right to all non-jurisdictional 

challenges to a conviction.’”), cert. denied sub nom. Renegifo v. United States, 132 S.Ct. 139, 

181 L.Ed.2d 58 (2011). Stated differently, “a voluntary and intelligent plea of guilty 

made by an accused person, who has been advised by competent counsel, may not be 

collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-2547, 81 

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L.Ed.2d 437 (1984). Therefore, when a § 2255 motion is filed collaterally challenging 

convictions obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to 

whether the underlying plea was both counseled and voluntary.” United States v. Broce, 

488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989); see also Bousley v. United 

States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609, 140 L.Ed.2d 828 (1998) (“A plea of guilty is 

constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’”). Moreover, 

“even the voluntariness and intelligence of a guilty plea can be attacked on collateral 

review only if first challenged on direct review.” Id. at 621, 118 S.Ct. at 1610. 

[P]lea bargaining retains its benefits of certainty and efficiency “only if 

dispositions by guilty plea are accorded a great measure of finality.” 

Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977); 

see id. (“To allow indiscriminate hearings in federal postconviction 

proceedings ... for federal prisoners under 28 U.S.C. § 2255 ... would 

eliminate the chief virtues of the plea system—speed, economy, and 

finality.”). While § 2255 exists “to safeguard a person's freedom from 

detention in violation of constitutional guarantees,” ... “[m]ore often than

not a prisoner has everything to gain and nothing to lose from filing a 

collateral attack upon his guilty plea.” Id. at 71–72, 97 S. Ct. 1621. As a 

result, “the representations of the defendant, his lawyer, and the 

prosecutor at [a plea] hearing, as well as any findings made by the judge 

accepting the plea, constitute a formidable barrier in any subsequent 

collateral proceedings.” Id. at 73–74, 97 S. Ct. 1621; see id. at 80 n. 19, 97 S. 

Ct. 1621 (explaining that if the record reflects the procedures of plea 

negotiation and includes a verbatim transcript of the plea colloquy, a 

petitioner challenging his plea will be entitled to an evidentiary hearing 

“only in the most extraordinary circumstances”). “The subsequent 

presentation of conclusory allegations unsupported by specifics is subject 

to summary dismissal, as are contentions that in the face of the record are 

wholly incredible.” Id. at 74, 97 S.Ct. 1621.

Winthrop-Redin, supra, 767 F.3d at 1216. 

In sum, because “‘[s]olemn declarations in open court carry a strong 

presumption of verity[,]’ Blackledge, 431 U.S. at 74, 97 S. Ct. 1621[,]” when a defendant 

“ma[k]e[s] statements under oath at a plea colloquy, ‘he bears a heavy burden to show 

his statements were false.’ United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (per 

curiam).” Id. at 1217; accord, e.g., United States v. Gonzalez–Mercado, 808 F.2d 796, 800 n.8 

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(11th Cir. 1987) (“While Rule 11 is not insurmountable, there is a strong presumption 

that the statements made during the colloquy are true.”); United States v. Cardenas, 230 

Fed.Appx. 933, 935 (11th Cir. Jul. 25, 2007) (unpublished) (“We apply a ‘strong 

presumption’ that statements made by a defendant during his plea colloquy are true, 

United States v. Medlock, 12 F.3d 185, 187 (11th Cir.1994); therefore, ‘when a defendant 

makes statements under oath at a plea colloquy, he bears a heavy burden to show his 

statements were false.’ United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Nothing 

in the record shows that Cardenas has satisfied his burden of showing that his sworn 

statements made during the plea colloquy-including that no one had predicted what 

sentence he would receive-were false; and we reject his claim that his guilty plea was 

involuntary.”).

D. Ineffective Assistance of Counsel. The Sixth Amendment gives criminal 

defendants the right to effective assistance of counsel. U.S. Const., amend. VI; 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To 

establish an ineffective assistance of counsel claim, a defendant must show that (1) 

‘counsel's representation fell below an objective standard of reasonableness’ and (2) 

that such failure prejudiced him in that ‘there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different.’” United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (per curiam) 

(quoting Strickland, 466 U.S. at 688 & 694, 104 S.Ct. at 2064 & 2068). “‘Conclusory 

allegations of ineffective assistance are insufficient[,]’” Wilson v. United States, 962 F.2d 

996, 998 (11th Cir. 1992) (per curiam) (quoting United States v. Lawson, 947 F.2d 849, 853 

(7th Cir. 1991)); see also Rosado v. Secretary, Dep’t of Corrections, 2010 WL 2976886, *4 

(M.D. Fla. Jul. 20, 2010) (“[V]ague, conclusory, speculative, or unsupported claims 

cannot support an ineffective assistance of counsel claim.”), and “[b]ecause both parts 

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of the test must be satisfied in order to show a violation of the Sixth Amendment, the 

court need not address the performance prong if the defendant cannot meet the 

prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) 

(citation omitted); see also Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (“A 

habeas petitioner claiming ineffective assistance of counsel must carry his burden on 

both Strickland prongs, and a court need not address both prongs if the defendant has 

made an insufficient showing on one.”); Adamson v. United States, 288 Fed.Appx. 591, 

594 (11th Cir. Jul. 29, 2008) (“The defendant must satisfy both prongs of this test to 

show a Sixth Amendment violation; if the defendant fails to demonstrate one of these 

prongs sufficiently, we do not need to address the other.”), cert. denied, 555 U.S. 1010, 

129 S.Ct. 526, 172 L.Ed.2d 385 (2008); Butcher v. United States, 368 F.3d 1290, 1293 (11th 

Cir. 2004) (“[O]nce a court decides that one of the requisite showings has not been 

made it need not decide whether the other one has been.”).4

The Strickland v. Washington standard for evaluating claims of ineffective 

assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 

58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The Eleventh Circuit has held that “’counsel 

owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, as 

in the former case counsel need only provide his client with an understanding of the 

law in relation to the facts, so that the accused may make an informed and conscious 

choice between accepting the prosecution’s offer and going to trial.’” Carter v. United 

States, 288 Fed.Appx. 648, 649 (11th Cir. Aug. 4, 2008), quoting Wofford v. Wainwright, 

 4 Given the two-prong nature of the test for adjudicating ineffective-assistance-of-counsel 

claims, it can come as no surprise that “‘the cases in which habeas petitioners can properly 

prevail on the ground of ineffective assistance of counsel are few and far between.’” Johnson v. 

Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (citation omitted), cert. denied sub nom., Johnson v. 

Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).

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748 F.2d 1505, 1508 (11th Cir. 1984). Moreover, in the context of sentencing following 

entry of a guilty plea, the court simply considers whether petitioner has established, in 

accordance with Strickland, supra, that his attorney was deficient and that he was 

prejudiced by this deficiency in performance. See, e.g., Myers v. United States, 2009 WL 

1505638, *1 (W.D. Pa. May 12, 2009) (“In order for petitioner to succeed on an ineffective 

assistance of counsel claim, he must prove: (1) that his counsel was deficient; and (2) 

that he was prejudiced by his counsel’s deficiency.”), aff’d, 364 Fed.Appx. 769 (3rd Cir. 

2010), cert. denied, U.S. , 131 S.Ct. 1026, 178 L.Ed.2d 848 (2011). 

The performance prong of the ineffective assistance standard 

entails a deferential review of counsel’s conduct. In assessing the 

reasonableness of counsel’s performance, courts must indulge a strong 

presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.5 Thus, the Sixth Amendment does not 

require criminal defense attorneys to take a nothing to lose approach and 

raise every available nonfrivolous defense.

With respect to prejudice, courts ask whether there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. 

Means v. Secretary, Department of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. Jul. 12, 

2011) (internal quotation marks and citations omitted; footnote added), cert. denied sub 

nom. Means v. Tucker, U.S. , 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012); see also Pair v. 

Cummins, 373 Fed.Appx. 979, 981-982 & 982 (11th Cir. Apr. 20, 2010) (“The performance 

prong of an ineffective assistance claim requires the petitioner to show that, considering 

all the circumstances, his attorney’s representation fell below an objective standard of 

reasonableness. The standard is that of a reasonable attorney, not a paragon of the bar 

or an Aristotle or a Clarence Darrow. Moreover, judicial review of an attorney’s 

performance is highly deferential, and the court must eliminate the distorting effects of 

 5 In order to satisfy the first prong, “the petitioner must establish that no competent counsel 

would have taken the action that his counsel did take[.]” Hall v. Thomas, 611 F.3d 1259, 1290 

(11th Cir. 2010) (quotation marks and citation omitted). 

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hindsight and evaluate performance from the attorney’s perspective at the time the 

challenged conduct occurred. In so doing, the court must indulge a strong presumption 

that the attorney’s conduct was objectively reasonable. A petitioner fails to overcome 

that presumption if the challenged conduct might be considered sound trial strategy. . . 

. Pair must [also] establish prejudice. It is not enough for him to show that his counsel’s 

deficient performance had some conceivable effect on the jury’s verdict. Instead, Pair 

must show 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.” (internal quotation 

marks and citations omitted)); Brownlee v. Haley, 306 F.3d 1043, 1059-1060 (11th Cir. 

2002) (“In evaluating the first, or ‘performance,’ prong of Strickland, ‘[j]udicial scrutiny 

of counsel's performance must be highly deferential.’ Because retrospective evaluation 

of a lawyer's performance can be difficult, ‘a court must indulge a strong presumption 

that counsel's conduct falls within the wide range of reasonable professional assistance; 

that is, the defendant must overcome the presumption that ... the challenged action 

might be considered sound trial strategy.’ A petitioner must identify specific acts or 

omissions that were not the result of reasonable professional judgment, and a court 

should deem these acts or omissions deficient only if they ‘were outside the wide range 

of professionally competent assistance.’ Simply put, the deference afforded an 

attorney's decision is great and the bar for proving a Sixth Amendment violation is 

high. In light of the ‘strong presumption in favor of competence,’ we have held that in 

order to prove deficient performance, ‘a petitioner must establish that no competent 

counsel would have taken the action that his counsel did take. Under the second, or 

‘prejudice,’ prong of Strickland, a petitioner must ‘affirmatively prove prejudice’ by 

showing that counsel's errors ‘actually had an adverse effect on the defense.’ This 

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requires a showing of more than ‘some conceivable effect on the outcome of the 

proceeding.’ Instead, the petitioner ‘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.’ Although this standard is difficult to meet, it is significant 

that a petitioner must show only a reasonable probability that the outcome would have 

been different; he ‘need not show that counsel's deficient conduct more likely than not 

altered the outcome in the case.’ When evaluating this probability, ‘a court hearing an 

ineffectiveness claim must consider the totality of the evidence before the judge or 

jury.’” (internal citations omitted).)

“[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does 

not bar the claim from being brought in a later, appropriate proceeding under § 2255.” 

Massaro v. United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 1696, 155 L.Ed.2d 714 (2003). 

Indeed, “in most cases a motion brought under § 2255 is preferable to direct appeal for 

deciding claims of ineffective assistance.” Id. at 504, 123 S.Ct. at 1694; see also United 

States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) (“An ineffective assistance claim 

should usually be raised in a motion under 28 U.S.C. § 2255.”), cert. denied, 134 S. Ct. 

962, 187 L.Ed.2d 822 (2014).

III. Analysis

A. Constitutional Errors AllegedlyCommitted by District Court. Ground

One of the § 2255 motion lists a “myriad of constitutional errors” allegedly committed 

by the Court. Doc. 107 at 8. Although not completely coherent and in some instances 

appearing to overlap, they are discussed in the order in which they were presented.

1. Denial of motion to withdraw guilty plea. This issue was raised 

and has been decided against Perez-Hernandez both in this Court and in the Eleventh 

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Circuit. (Doc. 48 at 10. (“The undersigned accepted his guilty plea on June 17, 2011, 

after a searching inquiry of the Rule 11 concerns at a change of plea hearing attended by 

Perez-Hernandez and his able counsel. The guilty plea was knowing, voluntary, and 

entered with close assistance of counsel.”); Doc. 84 at 6 (“Because the district court 

reasonably considered the totality of the circumstances, we affirm the district court’s 

denial of Perez-Hernandez’s motion to withdraw his guilty plea.”)). Thus, this alleged 

“constitutional error” is unavailable to Perez-Hernandez in a motion filed pursuant to 

28 U.S.C. § 2255. See United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)

(“[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot 

be re-litigated in a collateral attack under section 2255.”) (internal brackets, quotation 

marks and citation omitted); see also Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 

2012) (“At least where there has been no intervening change in controlling law, a claim 

or issue that was decided against a defendant on direct appeal may not be the basis for 

relief in a § 2255 proceeding.”); United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 

2005) (“The law of the case doctrine bars relitigation of issues that were decided, either 

explicitly or by necessary implication, in an earlier appeal of the same case.”) The 

undersigned can discern no information or evidence underlying this claim that was not 

raised, or could have been raised, by Perez-Hernandez and considered by the Eleventh 

Circuit on direct appeal of the denial of his motion to withdraw his guilty plea. 

2. Sentence Enhancement.

This sentencing claim, that his sentence was “enhance[ed] without due process of 

law on charges not included in the indictment” is due to be denied without an 

evidentiary hearing for several reasons.

First, this claim is unavailable since it was not raised on direct appeal. Under the 

procedural default rule “a defendant generally must advance an available challenge to a 

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15

criminal conviction or sentence on direct appeal or else the defendant is barred from 

presenting that claim in a § 2255 proceeding.” Lynn, 365 F.3d at 1234 (emphasis added).

Perez-Hernandez has failed carry his burden to show that an exception to the 

procedural default rule would require consideration of this claim.

Second, this claim is based on unsupported generalizations. See Winthrop-Redin, 

767 F.3d at 1216. Of singular importance, the due process failures have not been 

identified with any degree of specificity. From a review of the record, Perez-Hernandez 

has failed to show that the five offense levels added for the discharge of a firearm and 

the five offense levels added because a victim sustained serious bodily injury were 

erroneously applied without he and his attorney having an adequate opportunity to 

object to their application.

Third, his allegations in support of a due process violation during the sentencing 

hearing are affirmatively contradicted by the transcript of the hearing (see Sentencing 

Hearing Transcript, Doc. 65) and by his objections to the Presentence Report filed on 

October 14, 2011 (Doc. 27). He was represented by counsel, had an opportunity to 

review the Presentence Report and had the opportunity to present evidence to show 

that the enhancements imposed were not appropriate.

And finally, if Perez-Hernandez intended to raise a claim under United States v. 

Alleyne, 133 S. Ct. 2151 (2013), as interpreted by the government (Doc. 113 at 11), that 

claim is foreclosed because the enhancements at issue, presumed to be for the discharge 

of a firearm resulting in serious bodily injury, affected only the guideline calculations 

and not the statutory range of punishment. See Unites States v. Charles, 757 F.3d 1222, 

1225 (11th Cir. 2014) (“Accordingly, a district court may continue to make guidelines 

calculations based upon judicial fact findings and may enhance a sentence—so long as 

its findings do not increase the statutory maximum or minimum authorized by facts 

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determined in a guilty plea or jury verdict. “). The statutory range for a violation of 18 

U.S.C. § 922(g)(1) is 10 years/$250,000 fine/3 years SRT (Final Presentence Investigation 

Report, Doc. 21) and the sentence of 46 months followed by 3 years of supervised 

release that was imposed in this case was clearly within that range (Judgment, Doc. 69).

3. Miscellaneous Claims.

Perez-Hernandez has included a laundry list of claims, which he feels constitute 

reversible error by the court. They are interpreted as:

(a) The court abused its discretion by failing to determine that a factual 

basis for the plea had been shown. Doc. 107 at 6;

(b) He was not shown or informed of a plea agreement in open court. 

Id.;

(c) The court failed to inform him of collateral immigration 

consequences should he enter a guilty plea. Id.;

(d) He was induced to plead guilty by the judge. Id. at 6-8;

(e) His rights were not adequately explained to him before the guilty 

plea was accepted. Id. at 8;

(f) His plea was involuntary due to his inability to speak fluent 

English. Id.;

(g) The court improperly issued a warrant for his arrest instead of a 

summons. Id. at 11;

(h) The court improperly applied, at sentencing, an enhancement of 

five levels for the discharge of a firearm resulting in bodily injury. Id. at 12.

After a review of the record in this action, it is abundantly clear that PerezHernandez had the requisite information to raise these issues, with the assistance of 

appointed counsel, when he filed his direct appeal but he did not. He chose to only 

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attack the decision to deny his request to withdraw his guilty plea. These claims, to the 

extent they are interpreted to be independent of the claim raised on direct appeal, are 

therefore barred by the doctrine of procedural default. Lynn, supra, 365 F.3d at 1232-

1233 (internal citations, quotation marks, and footnote omitted).

Under the procedural default rule, a defendant generally must 

advance an available challenge to a criminal conviction or sentence on 

direct appeal or else the defendant is barred from presenting that claim in 

a § 2255 proceeding. This rule generally applies to all claims, including 

constitutional claims. 

A defendant can avoid a procedural bar only by establishing one of 

the two exceptions to the procedural default rule. Under the first 

exception, a defendant must show cause for not raising the claim of error 

on direct appeal and actual prejudice from the alleged error. Under the 

second exception, a court may allow a defendant to proceed with a § 2255 

motion despite his failure to show cause for procedural default if a 

constitutional violation has probably resulted in the conviction of one who

is actually innocent.

Id. at 1234-1235 (internal citations, quotation marks, and footnote omitted).

Perez-Hernandez has failed to show that his procedural defaults should be 

excused. It appears that he attempts to overcome the procedural default doctrine by 

arguing that he received ineffective assistance of appellate counsel (Motion to Amend, 

Doc. 135) and that he is actually innocent of the charge that he illegally possessed a 

firearm after having been convicted of a felony. But, as discussed below, the evidence 

does not establish ineffective assistance of trial or appellate counsel or that he was 

actually innocent of the charged offense.

B. Ineffective Assistance of Trial and Appellate Counsel.

Perez-Hernandez alleges that his trial and appellate attorneys failed to provide 

sufficient representation, claiming various forms of ineffective assistance of counsel 

from plea negotiations through appeal in the Eleventh Circuit. 

1. Claims Considered Conclusory as to Trial Counsel.

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Ground Two of the § 2255 motion contains several instances where Byrd is 

alleged to have been ineffective. Of those, the following are considered conclusory and 

have not been shown to have factual support: (a) he was not available; (b) he failed to 

inform Perez-Hernandez of an important development in the case; (c) he made his own 

decisions without first consulting his client such as filing a notice of intent to plead 

guilty; (d) failed to investigate; (e) withheld evidence from Perez-Hernandez; and (f) 

did not inform Perez-Hernandez of the consequences. Doc. 107 at 9-10. In stark 

contrast to these conclusory allegations, the findings this Court reveal that PerezHernandez had a completely different opinion of the efforts and competence of Byrd

that were expressed under oath during the guilty plea hearing:

A guilty plea hearing was conducted before the undersigned on June 17, 

2011. With Byrd at his side, Perez-Hernandez attended that hearing and, 

after a lengthy colloquy, entered a plea of guilty to the § 922(g)(1) charge. 

During that hearing, Perez-Hernandez was placed under oath, after which 

he made the following statements and representations: (i) he agreed that

he had reviewed the Indictment with Byrd and that he fully understood 

the charges against him; (ii) he acknowledged that he was fully satisfied 

with the representation he had received from Byrd, and that he had fully 

discussed with Byrd the facts surrounding the charge; (iii) he admitted 

having signed the Plea Agreement, and further acknowledged that he had 

had an opportunity to read and review it with counsel, that he fully 

understood its terms and conditions, and that he agreed with it; (iv) he 

denied that anyone had attempted to force him to plead guilty, or to 

pressure or threaten him in any way; (v) he understood that he faced a 

maximum term of imprisonment of 10 years, a fine of up to $250,000, a 

supervised release term of up to three years, and a special assessment of 

$100; (vi) he agreed that Byrd had discussed with him how the Sentencing 

Guidelines might affect his case; (vii) he acknowledged that this Court has 

authority to impose a sentence more or less severe than that called for in 

the Guidelines; (viii) he indicated his understanding that he would be 

bound by his guilty plea even if he did not like the sentence ultimately 

imposed; (ix) he professed understanding of his jury trial rights, and of 

the reality that entering a guilty plea would waive those rights; (x) he 

stated that he understood the elements of the § 922(g)(1) offense to which 

he was pleading guilty; (xi) he agreed that he had in fact committed the 

acts specified in the Factual Resume; and (xii) he entered a plea of guilty 

to the § 922(g)(1) charge. (See doc. 37.)

Doc. 48 at 2 (footnote omitted).

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These conclusory claims do not entitle Perez-Hernandez to the relief he is 

seeking, basically to withdraw his guilty plea, since he has failed to support them with 

facts that would establish deficient performance of counsel or resulting prejudice. 

“‘Conclusory allegations of ineffective assistance are insufficient[,]’” Wilson v. United 

States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam) (quoting United States v. Lawson, 

947 F.2d 849, 853 (7th Cir. 1991)); see also Rosado v. Secretary, Dep’t of Corrections, 2010 WL 

2976886, *4 (M.D. Fla. Jul. 20, 2010) (“[V]ague, conclusory, speculative, or unsupported 

claims cannot support an ineffective assistance of counsel claim.”)

2. Induced to Plead Guilty Against Free Will.

This claim, contained in Ground Two, appears to be an unartful recast of 

his motion to withdraw his guilty plea that was argued in the district and appellate 

courts. Again, the findings made by this Court and affirmed by the Eleventh Circuit, 

clearly reveals the unsupported nature of this claim.

The cornerstone of defendant’s Motion is his repeated insistence, in 

conclusory terms, that his prior retained counsel (Byrd) subjected him to 

“Duress and Coersion [sic]” in connection with his guilty plea. There are 

at least two glaring problems with this argument. First, defendant labels 

Byrd’s actions as coercive, without ever specifying what he did or said 

that Perez-Hernandez contends placed him under duress to plead guilty. 

The November 29 Order admonished defendant that, to establish a “fair 

and just reason” for withdrawing his guilty plea, he must do more than 

bandy about inflammatory labels and conclusory accusations, but must

instead explain in detail what he says Byrd did or did not do to force him 

to plead guilty against his will. Perez-Hernandez has not made such a 

showing. Second, the undersigned specifically asked defendant about 

duress and coercion during the Rule 11 plea colloquy. Under oath, PerezHernandez answered, “No, sir,” when asked, “has anyone attempted in 

any way to force you to plead guilty or to pressure you or threaten you in 

any way?”... “There is a strong presumption that the statements made 

during the [plea] colloquy are true.” United States v. Medlock, 12 F.3d 185, 

187 (11th Cir. 1994). ... Defendant has not overcome that presumption 

here, inasmuch as he has offered no colorable explanation for why he 

denied experiencing pressure or coercion at the guilty plea hearing, only 

to insist now that the converse was true.

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Nor does defendant demonstrate a “fair and just reason” for 

withdrawal of his plea through vague accusations that he had 

“insufficient counsel,” that he “was not clear on charge and details of the 

charge” to which he pled guilty, that he “was not provided information” 

and that he had “not had chance to discuss every thing with the attorney

and need more time.” (Docs. 44, 47.) Byrd is an experienced and capable 

criminal defense attorney who has practiced in this District Court on a 

regular basis for many years. Perez-Hernandez cannot withdraw his plea 

merely by branding Byrd “insufficient” or “ineffective,” without 

explaining in detail what he thinks Byrd did or failed to do in that regard. 

He has not provided the requisite specifics.

More importantly, defendant’s suggestions that Byrd did not 

discuss everything with him and that he did not understand the charges 

are irreconcilable with his statements under oath at the guilty plea 

hearing. When the undersigned asked Perez-Hernandez whether he was 

“fully satisfied with the representation that you’ve received from your 

attorney in this case, and have you fully discussed with your attorney all 

of the facts surrounding the charge,” Perez-Hernandez answered, “Yes, I 

did.” (Doc. 37, at 9.) Defendant has provided the Court with nothing that

would overcome the strong presumption that his statement under oath at 

the guilty plea hearing was true. Furthermore, despite multiple 

opportunities and express invitation to do so, Perez-Hernandez has failed 

to provide any specifics in support of his Motion as to what information 

he claims to have been deprived of, what misunderstandings he had 

concerning the offense to which he was pleading guilty, what topics he 

contends he did not have time to discuss with his attorney, or how he 

believes his attorney let him down. And of course, Perez-Hernandez has 

offered no coherent explanation for why he now disavows all of his 

responses under oath at the guilty plea hearing, when he assured this 

Court that he was satisfied with counsel, that he understood the charges 

and the plea agreement, that he had had a full opportunity to discuss the 

matter with his attorney, and that he wished to plead guilty.

Doc. 48 at 6-8 (footnotes omitted).

For several reasons, the undersigned finds that Perez-Hernandez’s claims that 

his trial counsel’s ineffective assistance rendered his guilty plea unknowing and 

involuntary are due to be denied without an evidentiary hearing. 

First, these claims are based largely on unsupported generalizations. See 

Winthrop-Redin, 767 F.3d at 1216. For instance, Perez-Hernandez repeatedly claims that 

Byrd made no effort to investigate or otherwise meaningfully defend his case, induced 

him to plead guilty against his free will, was not available to him, did not inform him of 

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21

an important development in the case, made his own decisions without consulting his 

client, committed perjury and did not inform the defendant of the consequences of 

entering a guilty plea. (Ground Two, Doc. 107 at 9). He has not identified, however, 

specific actions by Byrd that would rebut the strong presumption that his actions were 

reasonable given the circumstances of this case. Perez-Hernandez has alleged no 

reasonably specific, non-conclusory facts that, if true, would entitle him to relief. 

Winthrop-Redin, 767 F.3d at 1216. Therefore, there is simply no factual basis for this 

Court to surmise, much less find, that no competent attorney would have acted (or 

omitted to act) in the same manner as did Byrd in this case. See Hall, supra, 611 F.3d at 

1290. 

Second, and relatedly, because Perez-Hernandez has provided no specifics 

regarding Byrd’s alleged errors, his allegations fail to demonstrate how he was 

prejudiced by them. Indeed, nowhere in his § 2255 motion and briefing does he even 

conclusorily allege, much less allege reasonably specific, non-conclusory facts, “that, but 

for counsel's errors, he would not have pleaded guilty and would have insisted on 

going to trial.” Hill, supra, 474 U.S. at 59, 106 S.Ct. at 370. Even though it is undisputed 

that Perez-Hernandez wanted to withdraw his guilty plea even prior to sentencing, 

there is no showing that Byrd committed any performance errors that would have 

caused a reasonable defendant to forego his constitutional right to a jury trial and elect 

to enter a guilty plea. “In other words, in order to satisfy the ‘prejudice’ requirement, 

[Perez-Hernandez] must show that there is a reasonable probability that, but for 

counsel's errors, he would not have pleaded guilty and would have insisted on going to 

trial.” (Id.)

Third, Perez-Hernandez’s allegations in support of his claims of ineffective 

assistance of counsel are affirmatively contradicted by the terms of his signed guilty 

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plea (Doc. 18) and by his sworn testimony at his June 17, 2011 guilty plea hearing (see

Doc. 37, Guilty Plea Hearing Transcript).6

During [the change-of-plea] hearing, Perez-Hernandez was placed under oath, 

after which he made the following statements and representations: (i) he agreed 

that he had reviewed the Indictment with Byrd and that he fully understood the 

charges against him; (ii) he acknowledged that he was fully satisfied with the 

representation he had received from Byrd, and that he had fully discussed with 

Byrd the facts surrounding the charge; (iii) he admitted having signed the Plea 

Agreement, and further acknowledged that he had had an opportunity to read and 

review it with counsel, that he fully understood its terms and conditions, and that 

he agreed with it; (iv) he denied that anyone had attempted to force him to plead 

guilty, or to pressure or threaten him in any way; (v) he understood that he faced a 

maximum term of imprisonment of 10 years, a fine of up to $250,000, a 

supervised release term of up to three years, and a special assessment of $100; 

(vi) he agreed that Byrd had discussed with him how the Sentencing Guidelines 

might affect his case; (vii) he acknowledged that this Court has authority to 

impose a sentence more or less severe than that called for in the Guidelines; (viii) 

he indicated his understanding that he would be bound by his guilty plea even if 

he did not like the sentence ultimately imposed; (ix) he professed understanding 

of his jury trial rights, and of the reality that entering a guilty plea would waive 

those rights; (x) he stated that he understood the elements of the § 922(g)(1) 

offense to which he was pleading guilty; (xi) he agreed that he had in fact 

committed the acts specified in the Factual Resume; and (xii) he entered a plea of 

guilty to the § 922(g)(1) charge. (See doc. 37.)

Doc. 48 at 2 (footnote omitted). Perez-Hernandez, with the assistance of an attorney,

specifically informed the Court that he understood the consequences of his guilty plea 

and the sworn evidence of record proves that he was not induced or forced into 

pleading guilty; thus, he has not shown that he was prejudiced by Byrd’s actions as 

retained counsel.

3. Padillia claim.

 6 Cf. Winthrop-Redin, 767 F.3d at 1216-1217 (“[T]he record contains powerful evidence from 

Winthrop–Redin himself indicating that his guilty plea was knowing and voluntary. 

Winthrop–Redin initialed and signed the plea agreement, which specified that he had decided 

to plead knowingly and voluntarily, without threats, force, intimidation, or coercion. Winthrop–

Redin then testified under oath and in detail that his plea had not been induced by threats or 

force leveled against him or his family.”).

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The undersigned also interprets the motion to contain a claim that Byrd was 

ineffective by affirmatively advising Perez-Hernandez of the inapplicability of any 

collateral immigration consequences associated with his plea, i.e., that he would stand 

convicted of an aggravated felony and be subject to deportation proceedings.7 The 

Supreme Court has clearly held that criminal defense lawyers must inform their clients

of any risk of deportation associated with the entry of a guilty plea. Padilla v. Kentucky, 

559 U.S. 356, 374, 130 S. Ct. 1473, 1486-87, 176 L. Ed. 2d 284 (2010). If an attorney fails to 

inform his non-citizen client of the immigration consequences of his guilty plea, that 

failure is considered deficient under the Constitution. (Id.) Assuming deficient 

performance based on the allegations that Byrd specifically informed Perez-Hernandez

that he would not be deported after his sentence was completed, the undersigned turns 

to the question of whether prejudice has been shown. Whether Perez-Hernandez is 

entitled to relief will depend on whether he can demonstrate prejudice as a result the

arguably deficient performance of Byrd.

In order to show prejudice, Perez-Hernandez is required to proffer facts or 

information that would support a finding that, but for the failure of his attorney to 

notify him of the immigration consequences to entering a guilty plea, he would not 

have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 

52, 58-59 (1985). This showing must include a demonstration that “a decision to reject 

the plea bargain would have been rational under the circumstances.” Padillia, 559 U.S. 

 7 It is clear that the violation of 18 U.S.C. § 922(g)(1) is defined as an aggravated felony under the 

Immigration and Nationality Act. 8 U.S.C. § 1101(a)(43)(E)(ii). Thus, Perez-Hernandez faces 

deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated 

felony at any time after admission is deportable.”). What is not clear from this motion is the probability 

that he will be deported once his sentence is served. He has not filed a copy of any notice of deportation 

proceedings nor has he alleged that he has received a notice. The undersigned, for purposes of deciding 

this issue will assume that it is likely Perez-Hernandez faces deportation proceedings once his sentence is 

completed.

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at 372. After a careful review of the record in this case, it is determined that PerezHernandez has not supported his claim with facts that would show that he was 

prejudiced by Byrd’s alleged deficient performance.

First, the record contains facts from which it is logical to infer that PerezHernandez was aware of the possibility that he would face deportation proceedings. 

He specifically alleges that the possibility of deportation proceedings was discussed in a 

conference attended by a probation officer, Byrd and himself on May 25, 2011 (Doc. 14), 

before the entry of his guilty plea. (Docs. 107 at 17; 133 at 10) In addition, the 

information contained in the Presentence Investigation Report strongly suggests that he 

was aware of potential immigration problems that arise from criminal convictions. His 

criminal history includes a conviction for possession of marijuana in January 1989 for 

which he received a ten-year sentence. Ten years later, on February 3, 1999, he was also 

convicted of prostitution in Harris County, Texas and sentenced to twenty days. Doc. 

21 at 8. Thus, it cannot be a coincidence that he was also referred for deportation 

proceedings in 1999. Id. at 10. Although not deported, he obviously was involved to 

some degree in a deportation proceeding that ended successfully, allowing him to 

remain in the United States as a legal resident. See Gutierrez v. United States, 560 F. 

App'x 924, 927 (11th Cir.) cert. denied, 135 S. Ct. 302, 190 L. Ed. 2d 219 (2014) (“The 

district court did not err in concluding that Mr. Gutierrez failed to show prejudice 

because (1) he was aware of the risk of deportation, and (2) even if he was not so aware, 

it would not have been rational for him to reject the plea bargain.”).

Secondly, even if Byrd provided an inaccurate assessment of the liklihood that 

deportation proceedings would be instituted, Perez-Hernandez has failed to show that 

it would have been rational for him to decide not to plead guilty and elect a jury trial.

(Id.) The weight of the evidence against him was extremely heavy and he would have 

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lost a significant sentencing benefit had he chosen to go to trial. This Court, in the order 

denying the motion to withdraw the guilty plea back on January 6, 2012, summarized 

the strength of the Government’s case:

According to the Government’s evidence, Perez-Hernandez’s offense 

conduct related to a November 7, 2009 shooting in which both the victim 

and witnesses identified Perez-Hernandez as the man who fired a shot 

from a handgun, striking the victim in the abdomen. A subsequent search 

(pursuant to search warrant) of Perez-Hernandez’s residence resulted in

seizure of a .25 caliber Tangoglio pistol, and Perez-Hernandez admitted 

following his arrest that he had shot the victim with a firearm, albeit in 

self-defense. The Government’s evidence also showed that PerezHernandez had been convicted of a felony drug charge in Cameron 

County, Texas in January 1989, such that he was forbidden by federal law 

from possessing a firearm. (That offense was possession of marijuana, 

which may be either a felony or a misdemeanor under Texas law; 

however, given that Perez-Hernandez received a 10-year sentence, it was

obviously a felony.) In a presentence interview by the U.S. Probation 

Office following entry of his guilty plea, Perez-Hernandez stated that he 

had possessed the gun, that he was protecting himself, and that he was 

sorry.

Doc. 48 at 1, fn. 2. Under these circumstances, the prospect that Perez-Hernandez 

would be convicted after a jury trial was substantial and provided a significant

incentive to enter into a guilty plea in order to reduce the potential sentence and 

prevent the filing of additional charges. Thus, Perez-Hernandez, because of his actions 

and criminal history, faced the certainty that deportation proceedings would be 

prosecuted whether he chose a trial by jury or to make the best deal he could get 

through a guilty plea.

The Plea Agreement that Perez-Hernandez signed (Doc. 18) provided him with 

the opportunity to be sentenced to the lower end of the sentencing guideline range and 

provided that no additional charges related to the facts underlying the Indictment 

would be filed by the United States. Id. at 4-5. With full acceptance of responsibility, 

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Perez-Hernandez could have received a recommended 37 months to serve.8 Doc. 21 at 

13. Otherwise, he was facing a potential sentence of up to ten years, a fine of up to 

$250,000, up to a three-year term of supervised release after imprisonment, a special 

assessment of $100 and restitution as ordered by the Court. Without a guilty plea, the

recommended sentencing guideline range would have increased to a range of 51 to 63 

months imprisonment, extending his possible incarceration by over two years (26 

months). (See Guideline Worksheet, Doc. 14 at 6) Faced with these options, it makes 

little or no sense that the rational decision would have been to reject the plea offer and 

demand a jury trial. In other words, nothing has been proffered by Perez-Hernandez 

that would convince the undersigned that a rejection of the plea offer would have been 

rational.

4. Ineffectiveness of Appellate Counsel.

A motion to amend was filed on March 5, 2015 (Doc. 135) wherein 

Perez-Hernandez attempts to establish an ineffective assistance of counsel claim against 

his appointed attorney on appeal. He asserts that Shields failed to keep him informed 

about the “outcome of the case,”; that he did not review and make arguments based on 

“Court transcripts,”; and had a conflict of interest. Id. at 2. These allegations are not 

born out by the record or any articulated facts that seem applicable. For instance, the 

undersigned is unable to identify the conflict of interest that prevented Shields from 

performing his responsibility to provide effective assistance. Also, Perez-Hernandez 

has failed to identify any portion of the transcripts that should have been used by 

Shields but were not. He does state that Shields failed to keep him adequately informed 

of the progress of his appeal and that he failed to seek his client’s input as to the 

 8 The actual sentence he received was 46 months incarceration; three years supervised release and 

a $100 assessment. Doc. 69.

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contents of his appellate brief but does not offer how providing him with more 

information or seeking his input as to the contents of the appellate brief would have 

changed the outcome of his appeal. 

When analyzing a claim that appellate counsel was ineffective, courts use the 

same standard applied to trial counsel as expressed in Strickland v. Washington, 466 U.S. 

668 (1984). See Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (“Claims of 

ineffective assistance of appellate counsel are governed by the same standards applied 

to trial counsel under Strickland.”). Under the first prong of the Strickland test, PerezHernandez must show that his appellate counsel's performance “fell below an objective 

standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under 

Strickland's second prong, Perez-Hernandez must show that there “is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

The rambling and many times incoherent statements made by Perez-Hernandez 

do not show any deficient performance on the part of Shields, nor do they reveal a 

conflict of interest that would have prevented counsel from zealously representing his 

client. Therefore, the undersigned is unable to find that Perez-Hernandez suffered any 

prejudice by the fact that Shields, in the exercise of his professional judgment, decided 

to pursue only one issue on appeal. Without specific information that could be 

interpreted as showing that but for the Shields’ actions or inactions, the results of the 

appeal would have been different, there is no basis to alter the judgment in this action. 

Thus, the claim that appellate counsel was ineffective is considered unsupported and 

invalid.

5. Excuses for Procedural Defaults.

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If Perez-Hernandez intended to offer ineffective assistance of appellate counsel

as cause for his procedural defaults, he has failed to carry his burden of proof. There 

can be no question that “Constitutionally ineffective assistance of counsel can constitute 

cause” under Frady. Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir.2000). “In order to 

[establish cause], however, the claim of ineffective assistance must have merit.” United 

States v. Nyhuis, 211 F.3d at 1344.

Because Perez-Hernandez has failed to plead or demonstrate a meritorious claim 

of ineffective assistance of appellate counsel, see supra, he cannot overcome those 

procedural defaults previously identified. 

Petitioner also claims that he is actually innocent. Doc. 107 at 8 (“Perez 

(Petitioner) asserts that he is innocent of the charge’s against him. He did not possess, 

owned, or had shot anybody.”) (Punctuation, emphasis and grammar unchanged.) The 

undersigned finds this attempt to excuse his procedural defaults, if that is what was 

intended, is not credible. “To be credible, such a claim requires petitioner to support his 

allegations of constitutional error with new reliable evidence—whether it be 

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 

evidence—that was not presented [during his guilty plea and sentencing hearings]. 

Because such evidence is obviously unavailable in the vast majority of cases, claims of 

actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 

865, 130 L. Ed. 2d 808 (1995). The evidence of record proves that Perez-Hernandez

clearly possessed a firearm after conviction of a felony and used that firearm to inflict a 

gunshot wound to the abdomen of the victim. Any post-guilty-plea claim that he acted 

in self-defense or a self-serving declaration that he did not shoot anyone does little to 

establish actual innocence.

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C. Certificate of Appealability. In consideration of the foregoing, it is 

recommended that the Court deny Perez-Hernandez’s motion to vacate, set aside or 

correct his sentence under 28 U.S.C. § 2255. Moreover, pursuant to Rule 11(a) of the 

Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of 

appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court 

must issue or deny a certificate of appealability when it enters a final order adverse to 

the applicant.”). The habeas corpus statute makes clear that an applicant is entitled to 

appeal a district court’s denial of his habeas corpus petition only where a circuit justice 

or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of 

appealability may issue only where “the applicant has made a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). Here, Perez-Hernandez’s §

2255 motion is being denied both on procedural grounds without reaching the merits of 

the constitutional claims, such that “a COA should issue [only] when the prisoner 

shows . . . that jurists of reason would find it debatable whether the petition states a 

valid claim of the denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling[,]” Slack v. 

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), and also on the 

merits, such that a COA should issue only when the petitioner demonstrates “that 

reasonable jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong[,]” id.; see also id. at 483-484, 120 S.Ct. at 1603-1604 (“To obtain a 

COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial 

of a constitutional right, a demonstration that, under Barefoot, includes showing that 

reasonable jurists could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues presented were 

‘adequate to deserve encouragement to proceed further.’”); see Miller-El v. Cockrell, 537 

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U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling 

standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for 

that matter, agree that) the petition should have been resolved in a different manner or 

that the issues presented were “adequate to deserve encouragement to proceed 

further.”’”). Inasmuch as petitioner has defaulted his purported guilty plea and 

sentencing hearing claims a reasonable jurist could not conclude either that this Court is 

in error in denying the instant petition or that Perez-Hernandez should be allowed to 

proceed further regarding these claims, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 

(“Where a plain procedural bar is present and the district court is correct to invoke it to 

dispose of the case, a reasonable jurist could not conclude either that the district court 

erred in dismissing the petition or that the petitioner should be allowed to proceed 

further.”). In addition, it is recommended that the Court find that reasonable jurists 

could not debate whether Perez-Hernandez’s § 2255 habeas petition should be resolved 

in a different manner (with respect to his ineffective assistance of counsel claims) or that 

the issues presented are adequate to deserve encouragement to proceed further. 

Accordingly, petitioner is not entitled to a certificate of appealability with respect to any 

of his claims.

Rule 11(a) further 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. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit 

order denying petitioner’s motions for a COA and to appeal IFP in a case in which this 

Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 

3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and 

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recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 

WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and 

recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 

2010). 

IV. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that PerezHernandez's motion to amend (Doc. 135) be GRANTED, that his request for an 

evidentiary hearing be DENIED, and that Perez-Hernandez's § 2255 motion (Doc. 107), 

as amended, be DENIED and DISMISSED with prejudice. Should that 

recommendation be adopted, it is further RECOMMENDED that Perez-Hernandez be 

found not entitled either to a Certificate of Appealability or to proceed in forma pauperis

on appeal.

V. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, 

“[a] party failing to object to a magistrate judge’s findings or recommendations 

contained in a report and recommendation in accordance with the provisions of 28 

U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based 

on unobjected-to factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to object. In the absence 

of a proper objection, however, the court may review on appeal for plain error if 

necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection 

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must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place 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.

DONE this the 24th day of November, 2015.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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