IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41205

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ROCKY LEE MARQUEZ,

Defendant - 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 distribute, 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. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 29, 2017

Lyle W. Cayce

Clerk

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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) failed to advise Marquez and provide him “with discovery so that he 

could make a fully informed decision as to what plea should be entered”. The 

court summarily denied and dismissed his motion with prejudice, pursuant to 

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United 

States District Courts (Section 2255 Rules), ruling Marquez consented to the 

magistrate judge’s taking his plea and his “second group of claims [regarding 

being informed as to his guilty plea were] conclusory”. The court stated it could 

not “even begin to conduct a Strickland analysis because [Marquez] neglect[ed] 

to reference any erroneous advice or any specific evidence withheld”. As 

permitted by his COA, Marquez contends the court erred by failing to give him

an opportunity to amend his facially-insufficient IAC claims 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 attack, and authorizes 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 Rules.

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, 

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728–29 (5th Cir. 2015). Moreover, the district court’s implicit denial of leave 

to amend such a motion 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 lessthan-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. Peña 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 movant was entitled to relief); United States 

v. Rice, 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 

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make an informed decision. Needless to say, the Sixth-Amendment right to 

effective assistance of counsel “extends to the plea-bargaining process”. Lafler 

v. Cooper, 566 U.S. 156, 162 (2012). 

The Government 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”). Although our court previously ruled his closeassistance-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, 740 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.

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