### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 41205 Summary Calendar

UNITED STATES OF AMERICA , P laintiff

- Appellee

v. ROCKY LEE MARQUEZ , Defenda nt

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5 : 15

- CV

- 1 USDC No. 5:10

- CR

- 2506

- 2

Before JONES, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM: * Pursuant to a 12 October 2016 certificate of appealability (COA), Rocky Lee Marquez , federal prisoner # 79765

- 279 , contests the dismissal of his pro

se , 28 U.S.C. § 2255 motion , which challenges his conviction for conspiring to
possess , with intent to dist ribute , more than 50 grams of methamphetamine , in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)

. United States v.

* Pursu ant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 29, 2017 Lyle W. Cayce Clerk Case: 15-41205 Document: 00514288661 Page: 1 Date Filed: 12/29/2017No. 15

- 41205

2 Marquez , 547 F. App’x 517, 518

– 20 (5th Cir. 2013) ( denial of motion to set aside guilty plea and conviction affirmed on direct appeal)

. In moving under 28 U.S.C. § 2255 to set aside his sentence, Marquez asserted he received ineffective assistance of counsel (IAC) because his counsel, inter alia : (1) failed to object to the magistrate judge ’s taking his guilty plea, and (2) fai led to advise Marquez and provide him “with discovery so that he could make a fully informed decision as to what plea should be entered”. T he court summarily denied and dismissed his motion with prejudice , pursuant to Rule 4(b) of the Rules Governing Sect ion 2255 Proceedings for the United States District Courts (Section 2255 Rules) , ruling Marquez consented to the magistrate judge ’s taking his plea an d his “second group of claims [regarding being informed as to his guilty plea were] conclusory”. The cour t stated it could not “even begin to conduct a Strickland analysis because [Marquez] neglect[ed] to reference any erroneous advic e or any specific evidence withheld”. As permitted by his COA, Marquez contends the court erred by failing to give him
an oppo rtunity to amend his facially

- insufficient IAC cla ims before it denied and dismissed his 28 U.S.C. § 2255 motion with prejudice. We agree in part. Rule 4(b) of the Section 2255 Rules governs the initial consideration of a 28 U.S.C. § 2255 motion . The Rule directs the court to consider “[t]he motion, any attached exhibits, and the record of prior proceedings” relating to the judgment under att ack, and autho rizes summary dismissal if it “plainly appears” from those materials “that the moving party is not entitled to relief ”

. Rule 4(b), Section 2255 Rules. Otherwise, it directs the court to require the Government’s filing an answer

. Id

. If an answer is required, the movant will have an opportunity to submit a reply. Rule 5(d), Section 2255 Rule s. Factual findings in a denial of a 28 U.S.C. § 2255 motion are reviewed for clear error; issues of law , de novo

. United States v. Olvera , 775 F.3d 726, Case: 15-41205 Document: 00514288661 Page: 2 Date Filed: 12/29/2017No. 15

- 41205

3 728

– 29 (5th Cir. 2015). Moreover, the district court’s implicit denial of leave to amend such a moti on is reviewed for abuse of discretion. United States v. Riascos , 76 F.3d 93, 94 (5th Cir. 1996) (“To penalize [a pro se litigant] for less

than

- perfect pleading is a clear violation of the rule that courts must liberally construe pro se pleadings.”)

. Because such dismissals are disfavored, a court generally errs in dismissing or denying a pro se party’s pleadings without providing an opportunity to amend. Pe ñ a v. United States , 157 F.3d 984, 987 & n.3 (5th Cir. 1998). In United States v. Martinez , 181 F.3d 627, 628

– 29 (5th Cir. 1999), our court vacated and remanded the denial of a 28 U.S.C. § 2255 motion in order to provide the movant an opportunity to state his IAC claims with greater specificity. See also United States v. Whitehead , 393 F. App’x 226, 228 (5th Cir. 2010) (applying Martinez ); United States v. Tarver , 2000 WL 554024 at * 1 (5th Cir. Apr. 10, 2000) (answer from Government was required where motion and record did not establish whether m ovant was entitled to relief); United States v. Ric e , 1999 WL 1338407 at * 1 (5th Cir. Dec. 27, 1999) (noting litigant has right to amend prior to filing of responsive pleading under Fed. R. Civ. P. 15(a)). Marquez’s claims regarding the magistrate judge ’s role in taking his guilty plea are belied by the record, which shows he consented to the magistrate judge ’s taking his guilty plea , subject to the approval of the district court. United States v. Dees , 125 F .3d 261, 266

– 68 (5th Cir. 1997). Therefore , it “plainly appears” from the record that Marquez is not entitled to relief on that issue

. Rule 4(b), Section 2255 Rules; United States v. Wilkes , 20 F.3d 651, 653 (5th Cir. 1994). Marquez’s remaining IAC claims are that counsel did not properly advise him regarding his guilty plea or provide him with discovery so that he could Case: 15-41205 Document: 00514288661 Page: 3 Date Filed: 12/29/2017No. 15

- 41205

4 make an informed decision. Needless to say, t he Sixth

- Amendment right to effective assistance of counsel “ extends to the plea

- bargaining process ”

. Lafler v. Cooper , 566 U.S. 156, 162 (2012). The Gover nment asserts the court properly considered this court’s ruling there was close assistance of counsel when Marquez pleaded guilty. Marquez , 547 F. App’x at 520 (ruling Marquez’s close

- assistance

- of

- counsel “contentions find no support in the record”). Al though our court previously ruled his close

assistance

- of

- counsel contentions lacked record support , whether Marquez received effective assistance of counsel is “ distinct ” from whether he received close assistance of counsel under United States v. Carr , 74 0 F.2d 339 (5th Cir. 1984)

. United States v. Urias

- Marrufo , 744 F.3d 361, 365 (5th Cir. 2014); see also United States v. McKnight , 570 F.3d 641, 646 (5th Cir. 2009). Accordingly , it does not plainly appear Marquez is not entitled to relief with respect to his remaining IAC claims. Rule 4(b), Section 2255 Rules

. Therefore , Marquez, a
pro se litigant, should have been granted the opportunity to state his IAC claims with greater specificity

. Martinez , 181 F.3d at 628

– 29

. AFFIRMED IN PART and VACATED AND REMANDED IN PART. Case: 15-41205 Document: 00514288661 Page: 4 Date Filed: 12/29/2017