# United States Court of Appeals **for the Fifth Circuit**

No. 21-50152

United States of America, Plaintiff—Appellee ,

versus Jesus Cortez, Defendant—Appellant

.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:19-CV-1160

Before Southwick, Graves, and Costa, Circuit Judges

. Per Curiam: * A member of this panel previously deni ed Jesus Cortez a certificate of appealability and de nied appointment of counsel. Cortez now moves for reconsideration. Both motions are again DENIED

.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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

### FILED August 31, 2022

Lyle W. Cayce Clerk Case: 21-50152 Document: 00516455191 Page: 1 Date Filed: 08/31/2022No. 21-50152

2 FACTUAL AND PROCEDURAL BACKGROUND On November 2, 2012, the Drug Enforcement Administration (“DEA”) received a confidential tip that a shipment of methamphetamine was going to be delivered to a Marri ott Hotel in San Antonio, Texas. According to the informant, Joseph Ybarra would purchase the narcotics from an unknown individual in a vehi cle with Arizona license plates, later identified as Eleazar Huer ta. The DEA set up surve illance in the parking lots of two downtown Marriott Hotels. While conducting their surveillance, officers saw a Ford Expedition and a Grand Marquis – vehicles that ge nerally matched the informant’s tip – drive into the parking lot of one of the Ma rriott hotels. Each driver went into the hotel, then returned to the parkin g lot. Soon thereafter, both men got into the Ford Expedition. Officers th en saw a BMW pull into the parking lot, driven by defendant Jesus Cortez. Co rtez got out, appe ared to speak to Huerta, then got back into his BM W and seemingly followed the Ford Expedition out of the parking lot. At that point, the DEA officers st opped both vehicles. The officers removed Cortez and two other people from his BMW and, as one of the officers later testified, began to “clear the vehicle for officer safety.” After yelling out “clear,” one officer looked to the backseat of the car “to make sure nobody was lying on the floorboard” and saw a “firearm on the driver’s side set between the seat and the door as yo u open it.” All the drivers and passengers were detained and informed of their Mirandarights. Cortez decide d to talk with the po lice. According to the officers, Cortez stated there was methamphetamine and cocaine in the vehicle and they were going to his fath er’s house to drop off the vehicle. When asked why the drug dogs did not al ert on the vehicle, Cortez said it might have been because of the way the drugs were packaged. Case: 21-50152 Document: 00516455191 Page: 2 Date Filed: 08/31/2022No. 21-50152

3 As a result of Cortez’s statem ents, the DEA searched the Ford Expedition. They found sixteen bundles of methamphetamine hidden inside, weighing over five kilograms in total. Each kilogram had an estimated street value of $17,000 to $18,000. Later that same month, a grand juryfor the United States District Court, Western District of Texas. indicted Cortez for one count of conspiracy to possess with intent to di stribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846, and one co unt of aiding and abetting possession with intent to distribute methampheta mine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Three and a half ye ars later, a grand jury indicted Cortez for one count of using or carrying a firear m “during and in relation to” a drug trafficking crime or possessing a fi rearm “in furtherance of” a drug trafficking crime, violatin g 18 U.S.C. § 924(c). After a two-day trial in January 2017 , Cortez was convicted on all three counts. The district court sentenced Cortez to a term of imprisonment of 210 months and 5 years of supervised release. This court affirmed Cortez’s conviction, holding there wa s sufficient evidence to support the conviction and that the district court’s decision not to follow the Pattern Jury Instructions was not per se error or a grave miscarriage of justice. United States v. Cortez , No. 17-50504, 2018 WL 3322863 (5th Cir. 2018).

Cortez then filed a Section 2255 moti on to vacate his sentence, raising seven separate ineffective assistance of counsel claims . The Government filed a response in opposition to th e motion, attaching affidavits from Cortez’s trial counsel. The district court dismissed Cortez’s Section 2255 motion and denied him a certificate of a ppealability (“COA”) as to any claim. Cortez subsequently moved for a COA fr om this court and filed a motion for appointment of counsel. In January 2022, a single member of this panel denied the motions. The full pa nel now reconsiders the denial. Case: 21-50152 Document: 00516455191 Page: 3 Date Filed: 08/31/2022No. 21-50152

4 DISCUSSION An appeal of a final order in a Se ction 2255 proceeding is governed by 28 U.S.C. § 2253(c). A petitioner must obtain a COA from “a circuit justice or judge” before appealing the de nial of their petition. § 2253(c)

. Obtaining a COA requires that a petitioner make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Where the district court has denied the petitioner’s claims on the merits, the petitioner must establish that reasonable jurists woul d find the denial debatable or wrong. Slack v. McDaniel , 529 U.S. 473, 484 (2000). At the COA stage, we must “limit [our] examination to a threshold inquiry into the underlying merits of [the] claims.” Buck v. Davis , 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell , 537 U.S. 322, 327 (2003)). Cortez’s Section 2255 motion raised eight claims in support of relief. We will consider each. I. Ineffective assistance of trial counsel

An ineffective assistance of trial counsel (“IATC”) claim presents a court with two issues for resolution. A moving party “must show: (1) ‘that counsel’s representation fell below an objective standard of reasonableness,’ and (2) that the deficiency was ‘p rejudicial to the defense.’” Anaya v. Lumpkin , 976 F.3d 545, 550–51 (5 th Cir. 2020) (quoting Strickland v. Washington , 466 U.S. 668, 688, 692 (1984 )). In evaluating counsel’s performance for objective reasonable ness, courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance.” Strickland , 466 U.S. at 689. To sh ow prejudice, “there [must be] a reasonable probability that, but for counsel’s . . . errors, the result of the proceeding would have been different.” Id. at 694. First, Cortez contends that his trial counsel failed to conduct a reasonable investigation by failing to interview six potential witnesses and Case: 21-50152 Document: 00516455191 Page: 4 Date Filed: 08/31/2022No. 21-50152

5 obtain copies of his bank and phone reco rds. Trial counsel is required to “make reasonable investigations or to make a reasonable de cision that makes particular investigat ions unnecessary.” Id. at 691. When assessing whether pretrial investigation was reasonable, we consider “the ‘num ber of issues in the case, the relative complexity of those issues, the strength of the government’s case[,] and the overa ll strategy of trial counsel.’” Nealy v. Cabana , 764 F.2d 1173, 1177 (5th Cir. 1985) (citation omitted). At a minimum, counsel must “interview potential witnesses and make an independent investigation of the fact s and circumstances of the case.” Id. ; see also American Bar Association Standards for Criminal Justice § 4-4.1 (4th ed. 2017).

The district court dismissed this claim, relying on an affidavit provided by trial counsel stating th at Cortez had not asked counsel to interview the potential witnesses or obta in phone or bank re cords. Though perhaps not requested, Cortez’s trial counsel apparently did not interview any potential witnesses or conduct an in dependent investigation. They only attempted to interview Cortez’s fatherand then did not interview anyone else. Instead, trial counsel believed, “in [their] professional judgment and experience, that [their] defensive theory was best supported by Mr. Cortez’s own testimony, and our cross-examination of the Government’s witnesses.” Under these facts, reasonable jurist s could debate the district court’s conclusion that counsel’s efforts were objectively reasonable. See Strickland , 466 U.S. at 691

. The district court also concluded that Cortez failed to show how additional efforts would have altered th e outcome of the trial given the weight of the evidence against Cortez, including his oral confession . In support of his motion, Cortez provided only a single admissible affidavit from his brother – one of the named, uncalled wi tnesses – stating he was available and would have testified. See Day v. Quarterman , 566 F.3d 527, 538 (5th Cir. Case: 21-50152 Document: 00516455191 Page: 5 Date Filed: 08/31/2022No. 21-50152

6 2009) (noting that, for uncalled-witness claims, Strickland requires showing that the testimony would have been not only favorable “but also that the witness would have testifie d at trial.” (quoting Alexander v. McCotter , 775 F.2d 595, 602 (5th Cir. 1985) (citations omitted)))

. Likewise, though Cortez alleges that his bank and phone records could have been used to impeach the Government’s witnesses, he has not supported his assertions with any evidence that would allow him to prevail on his claim. See Ross v. Estelle , 694 F.2d 1008, 1011 (5th Cir. 1983). Thus, Cortez has failed to support his claims of prejudice with evidence to rais e a debatable issue that further investigations would have change d the outcome of his trial. Second, Cortez contends that his trial counsel was ineffective by failing to apprise him of the status of their investigation, which would have allowed him to plead guilty. As the district court found, though, defense counsel informed Cortez of the govern ment’s case against him and of the potential consequences of going to trial. In fact, after the original indictment was superseded, the district court held two “ Lafler hearings” to ensure that Cortez understood the charges against him and risks of rejecting the plea offer. See Lafler v. Cooper , 566 U.S. 156 (2012). When the court asked Cortez whether he was “satisfied” that he wa s adequately infor med to make an independent decision, Cortez always resp onded that he was. As such, Cortez has failed to make a subs tantial showing that his counsel’s performance was objectively unreasonable or that he wo uld have taken the guilty plea but for any alleged defective performance. See id. at 174. Third, Cortez contends that his tr ial attorneys were poorly prepared for trial because they did not have enough time to review the Government’s discovery, research the law applicable to the case, investigate witnesses, and consult with Cortez’s doctors or medical experts on his post-traumatic stress disorder (“PTSD”) diagnosis. The di strict court dismissed this claim, Case: 21-50152 Document: 00516455191 Page: 6 Date Filed: 08/31/2022No. 21-50152

7 concluding that Cortez’s arguments were largely unsubstantiated and that his counsel had vigorously represented Cortez at trial. Cortez raises a debatable issue regarding counsel’s deficient performance in failing to consult a medical expert regarding Cortez’s apparent diagnosis of PTSD and failure to present evidence of his PTSD at trial. The defense knew of Cortez’s cl aimed PTSD, as counsel relied on it at trial extensively. Even so, the defens e did not submit documents or expert testimony in support of the supposed diag nosis at trial. To substantiate this claim, Cortez attached medical notes to his Section 2255 motion showing that a doctor listed PTSD as one of Cortez ’s ailments on December 1, 2016. Importantly, Cortez’s trial counsel did not expl ain the failure to present this evidence or consult with Cortez’s doctors regarding Cortez’s PTSD diagnosis, nor did they suggest it was based on any strategic decision. Nonetheless, Cortez has not made a substantial showing that the failure to present this ev idence was prejudicial. He has not explained how evidence of a PTSD diag nosis would have altered the outcome of the trial given the weight of the evidence against him. See Gray v. Lucas , 677 F.2d 1086, 1093 (5th Cir. 1982). He argues that had his counsel been better prepared, they would have “been in a better position to impeach the government’s witnesses” and “strengt hen[ed] Cortez’s defense.” These conclusory allegations cannot satisfy Co rtez’s burden of showing prejudice. See United States v. Holmes , 406 F.3d 337, 361 (5th Cir. 2005). Fourth, Cortez claims that his co unsel’s failure to investigate and present evidence of his PTSD was ineffective at the sentencing phase. The district court concluded that Cortez fa iled to show that his trial counsel was ineffective at sentencing and that but for the failure to investigate his PTSD he would have received a lesser senten ce, noting that his trial counsel did raise the issue of Cortez’s PTSD at se ntencing. Indeed, Cortez received a Case: 21-50152 Document: 00516455191 Page: 7 Date Filed: 08/31/2022No. 21-50152

8 sentence well below the sentencing guidelines. Cortez has failed to explain how presenting more evidence of his psychological diagnoses would have affected the outcome of sentencing. See Strickland , 466 U.S. at 694. Fifth, Cortez claims that his trial counsel was ineffective for failing to pursue a “substantial assist ance” departure at sentenci ng. The district court dismissed this claim because in Cortez’s trial testimony he denied the facts he had confessed to investigators re garding his co-defendants and denied responsibility for his actions. Also, th e prosecutor has discretion whether to file a motion for a departure from the Guidelines based on a defendant’s substantial assistance. See Wade v. United States , 504 U.S. 181, 185–86 (1992). District courts have the author ity to review the decision not to file such a motion and grant relief if they find refusal was based on an unconstitutional motive. Id. Cortez does not allege any such motive here. Sixth, Cortez contends that his co unsel was ineffective by not moving to suppress the firearm found in his ca r. The district court dismissed this claim because the gun was found in plai n view during a protective sweep of Cortez’s vehicle. Defense counsel filed multiple motions to exclude evidence, successfully excluding body armor that was found in Cortez’s trunk. See Kimmelman v. Morrison , 477 U.S. 365, 375 (1986). Cortez has not made a substantial showing that his co unsel was deficient on this issue. II. Ineffective assistance of appellate counsel

Claims of ineffective assistance of appellate counsel are also analyzed using Strickland ’s two-step test. Briseno v. Cockiell , 274 F.3d 204, 207 (5th Cir. 2001). To prove prejudice with re spect to a claim that appellate counsel was ineffective, a petitioner must show a reasonable probability that he would have prevailed on appeal but for his counsel’s deficient representation. Id. First, Cortez contends his appellate counsel was deficient by failing to raise issues of vindictive prosecution an d prosecutorial misconduct related to Case: 21-50152 Document: 00516455191 Page: 8 Date Filed: 08/31/2022No. 21-50152

9 “false statements” that were made outside the presence of the jury. His contention is unavailing. As the district court noted, no presumption of vindictiveness arises from a prosecut or’s filing a superseding indictment after a defendant refuses to accept a guilty plea. See United States v. Saltzman , 537 F.3d 353, 360–62 (5th Cir. 2008). Also, Cort ez has failed to explain how the complained-of “false statements” could have prejudiced him or how his appellate counsel would have been able to show plain error. Appellate counsel are not required to pr esent patently frivolous – or even all non-frivolous issues – on appeal. Ellis v. Lynaugh , 873 F.2d 830, 840 (5th Cir. 1989). Second, Cortez contends his appella te counsel was ineffective when they failed to challenge the constituti onality of 18 U.S.C. § 924(c)(2) after the Supreme Court’s decision in Johnson v. United States , 576 U.S. 591 (2015). Specifically, Cortez complain s that his appellate counsel did not argue that Section 924(c)(2) is unconsti tutionally vague be cause it fails to “provide a fair notice of the prohib ited drugs” that constitute “drug trafficking.” The district court dismissed this argument because Johnson and subsequent cases — Sessions v. Dimaya , 138 S. Ct. 1204 (2018) and United States v. Davis , 139 S. Ct. 2319 (2019) — applied to provisions of the United States Code with residual clauses. Section 924(c)(2) contains no residual clause, making Johnson inapplicable. Cortez’s motions for a COA and for appointment of counsel are DENIED

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