govinfo:USCOURTS-txsd-4_17-cr-00007-6

IN THE UNITED STATES DISTRJCT COURT 
FOR THE SOUTHERN DISTRICT OF TEXAS 
HOUSTON DIVISION 
MARC ANTHONY HILL, § 
§ 
§ 
§ 
Petitioner, 
v. 
UNITED STATES OF AMERICA, 
Respondent. 
§ Civil Action No.  4:24-CV-02104
§ Criminal Action No. 1 7-CR-7-1 
§
§ 
§ 
ORDER 
Pending before the Court are Petitioner Marc Anthony Hill's Motion to 
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Civil Document No. 
1, Criminal Document No. 840); Petitioner's Supplemental Omnibus Motion for 
Post-Conviction Relief (Criminal Document No. 899); and Respondent United 
States of America's Motion for Summary Judgmenti(Criminal Document No. 864). ,, 
,: 
Having considered the motions, submis�ions, and. applicable law, the Court 
determines that the Petitioner's motions should be denied, and the Respondent's 
motion·should be granted. 
I. BACKGROUND
On March 29, 2018, Petitioner Marc Anthony Hill ("Hill") was charged in a 
four-count indictment with: (1) aiding and abetting Hobbs Act robbery in violation 
of 18 U.S.C. §§ 195 l(a) and 1952; (2}aiding and abetting the use of a firearm during 
United States District Court
Southern District of Texas
ENTERED
June 16, 2026
Nathan Ochsner, Clerk
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a crime of violence causing the death of person in violation of 18 U.S.C. §§ 
924(c)(l)(A)(iii), (c)(3), and 0)(1); (3) attempted Hobbs Act robbery in violation of 
18 U.S.C. § 195l(a); and (4) aiding and abetting the discharge of a firearm during a 
crime of violence in violation of 18 U.S.C. § 924(c)(l)(A)(ii) and (c)(3).1 Hill, along 
with several co-defendants, became involved in "an armored car robbery at a bank 
automated teller machine scheme" in 2016. United States v. Hill, 63 F.4th 335, 342 
(5th Cir. 2023). "The scheme involved staking out ATMs to identify when armored· 
car drivers would replenish the cash inside and then robbing the armored car at the 
time of delivery by shooting and killing the driver." Id. The crew pulled off their 
first hit at a Wells Fargo bank ATM in Houston, during which they murdered the 
armored car driver. Id. A second robbery was planned at an Arnegy Bank ATM later 
that year. Id. Law enforcement was tipped off, and after months of surveillance, 
converged on the attempted Amegy Bank ATM robbery and arrested Hill at the 
scene. Id. 
In March of 2019, this Court held a ten-day jury trial in this matter, after which 
a federal jury found Hill guilty on all four counts. Id. at 344. On July 2, 2019, the 
Court sentenced Hill to two concurrent terms of 240 months on Counts One and 
Three, followed by two consecutive life terms each on Counts Two and Four. See 
1 See Superseding Indictment, Criminal Document No. 125 at 1-6. 
2 
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United States v. Hill, 35 F.4th 366 (5th Cir. 2022). An initial consolidated appeal 
was argued by the five co-defendants in this matter. See id. Of note, the Fifth Circuit 
held that the evidence was sufficient to support a conviction for Court Four, aiding 
and abetting discharge of a firearm during a crime of violence, as predicated on 
attempted Hobbs Act robbery. See id. at 395. Upon panel rehearing, however, the 
Fifth Circuit vacated Count Four as to all defendants, based on the Supreme Court's 
holding in United States v. Taylor, 596 U.S. 845, (2022), that "attempted Hobbs Act 
robbery does not qualify as a crime of violence." Hill, 63 F.4th at 363-64. On May 
10, 2024, Hill filed his pending motion for ineffective assistance counsel brought 
pursuant to 28 U.S.C. § 2255. 2 On November 1, 2024, the Government filed a motion 
for summary judgment contending that Hill's 2255 motion should be denied. 
II. STANDARD OF REVIEW 
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional 
rights and for a narrow range of injuries that could not have been raised on direct 
appeal and would, if condoned, result in a complete miscarriage of justice." United 
States v. Mimms, 43 F.3d 217,219 (5th Cir. 1995) (quoting United States v. Vaughn, 
955 F.2d 367,368 (5th Cir. 1992)). Even if a defendant alleges a constitutional error, 
2 See Pro Se Petitioner Marc Anthony Hill's Motion Under 28 US.C. § 2255 to 
Vacate, Set Aside, or Correct Sentence by a Personal in Federal Custody, Criminal 
Document No. 840 at 1-12. 
3 
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he may not raise an issue for the first time on collateral review without showing both 
cause for his procedural default and actual prejudice resulting from the error. United 
States v. Frady, 456 U.S. 152, 167 (1982); see also United States v. Acklen, 47 F.3d 
739, 742 (5th Cir. 1995). A petitioner must show "cause" to explain the reason why 
the objection was not made at trial or on direct appeal and show "actual prejudice" 
was suffered from the alleged errors. Frady, 456 U.S. at 167. To prove "cause," a 
petitioner must show an external obstacle prevented him from raising his claims 
either at trial or on direct appeal. McCleskey v. Zant, 499 U.S. 467, 497 (1991). To 
prove "actual prejudice," the petitioner must show he has suffered an actual and 
substantial disadvantage. Frady, 456 U.S. at 170. 
To succeed under the "cause" and "actual prejudice" standard, a petitioner 
must meet a "significantly higher hurdle" than the plain error standard required on 
direct appeal. Id. at 166. This higher standard is appropriate because once the 
petitioner's chance to direct appeal has been exhausted, courts are allowed to 
presume the petitioner was fairly convicted. Id. at 164; see also United States v. 
Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (presuming defendant to be fairly 
and finally convicted after direct appeal). Ineffective assistance of counsel, if shown 
and applicable, will satisfy the requisite cause and prejudice. Acklen, 47 F.3d at 742. 
Additionally, a claim for ineffective assistance of counsel is properly brought for the 
4 
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first time in a § 2255 motion, United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 
1991) (en bane). 
III. LAW & ANALYSIS 
Hill moves, pro se, to vacate, set aside, or correct his sentence pursuant to 28 
U.S.C. § 2255 on three grounds: (1) Hill's counsel was ineffective in regard to his 
performance surrounding this.Court's exclusion of testimony from an alleged expert 
witness prior to trial ("Claim One"); (2) Hill's counsel was ineffective by failing to 
raise an objection concerning Hill's attendance at an in camera hearing ("Claim· 
Two"); and (3) Hill's appellate counsel was ineffective because he failed to argue 
the above issues on appeal ("Claim Three"). 3 In response, the Government contends 
that Hill's claims for ineffective assistance of counsel are speculative and 
conclusory, and notes for the Court the Supreme Court's strong guidance that courts 
"indulge a strong presumption that counsel's conduct falls within the wide range of 
reasonable assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). The 
Court construes all prose filings liberally. See Erickson v. Pardus, 55 l U.S. 89, 94 
(2007). Accordingly, the Court will consider, in tum, each of Hill's claims. 
3 See Pro Se Petitioner Marc Anthony Hill's Memorandum of Law in Support of 
Petitioner's Motion Pursuant to 28 USC§ 2255, Criminal Document No. 841 at 1-90. 
5 
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A Claim One 
Claim first contends that his defense counsel at trial was ineffective because 
he "fail[ed] to request a Daubert hearing on Jan. 7, 2019 after this court denied him 
the expert witness Marisa T. Dery."4 The Court analyzes an allegation of ineffective 
assistance of counsel in a § 2255 motion under the two-prong test established in 
Strickland v. Washington, 466 U.S. 668 (1984); United States v. Willis, 273 F.3d 
592, 598 (5th Cir. 2001). The movant must show his counsel's performance was 
both deficient and prejudicial to prevail onan ineffective assistance of counsel claim. 
Strickland, 466 U.S. at 700; Willis, 273 F.3d at 598. To show deficiency, the movant 
must show his counsel's assistance was outside a broad range of what is considered 
reasonable. Strickland, 466 U.S. at 669. To establish prejudice, the petitioner "must 
demonstrate '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."' Harrington v. 
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 694). Thus, when 
a petitioner challenges his conviction, this issue is whether "a reasonable probability 
exists that the jury would have had a reasonable doubt as to guilt." Hernandez v. 
Johnson, 213 F.3d 243, 249 (5th Cir. 2000). "This is a heavy burden which requires 
4 See Pro Se Petitioner Marc Anthony Hill's Memorandum of Law in Support of 
Petitioner's Motion Pursuant to 28 U.S.C. § 2255, Criminal Document No. 841 at 122. 
6 
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a 'substantial,' and not just a 'conceivable,' likelihood of a different result. United 
States v. Wines, 691 F.3d 599, 604 (5th Cir. 2012). "Counsel's errors must be 'so 
serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable."' 
Harrington, 562 U.S. at 104 ( quoting Strickland, 466 U.S. at 687). The movant must 
prove both prongs of the analysis: counsel tendered deficient performance, and the 
movant suffered prejudice. Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). 
The standards for ineffective trial and appellate counsel are the same. United States 
v. Merida, 985 F.2d 198, 202 (5th Cir. 1993). 
Here, Hill contends that had a Daubert hearing occurred regarding his 
tendered expert's expertise, she. would have been found to be an expert, testified at 
trial that Hill was not the person in communication on cell phone recordings offered 
by the Government, and thus caused Hill to be acquitted. 5 A review of the pre-trial 
motion practice in this case reveals that Hill's trial counsel litigated the issue of 
allowing his tendered voice expert to testify, at length. On December 28, 2018, Hill's 
trial counsel filed a proposed witness list, denoting Merisa Dery as a voice 
identification expert.6 The Government then filed a motion to exclude Ms. Dery's 
testimony disputing "the reliability of the science underlying voice identification, as 
5 Id. at6-11. 
6 See Defendant Marc Anthony Hill's Proposed Expert Witness List, Criminal 
Document No. 240 at 2. 
7 
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well as the methods applied by Dery in this case."7 On January 2, 2019, Hill's trial 
counsel filed an extensive response to the Government's motion to exclude, arguing 
that Dery "is an expert in voice identification and manages a forensic practice that 
specializes in this science and related topics ... and by training and experience is an 
expert in this field."8 Hill's trial counsel then asked that the Court conduct a Federal 
Rule of Evidence 702 hearing in an attempt to further advocate for his client.9 On 
January 7, 2019, the Honorable District Court Judge Ewing Werlein, Jr held a 
pretrial conference in which the issue of Ms. Dery's expert testimony was discussed, 
at length.10 This Court ultimately granted the Government's motion to exclude Ms. 
Dery's proposed expert testimony, finding that "the use of this technology and this 
kind of expertise is not accepted and does not meet the Daubert standard." 11 
In sum, the Court notes the significant lengths Hill's trial counsel went to in 
efforts to ensure his client's desired expert witness could testify at trial. The record 
makes clear that Hill's trial counsel researched the issue, tried to have the evidence 
7 Government's Motion to Exclude Expert Witness Testimony, Criminal Document 
No. 242 at 1-10. 
8 See Defendant Marc Anthony Hill's Response to Government's Motion to Exclude 
Testimony of Marisa Dery and John Sawicki, Criminal Document No. 243 at 1-4. 
9 Id. at 3. 
10 Transcript of January 7, 2019 Pretrial Conference, Criminal Document No. 682 
at 1-214. 
11 Id. at 19. 
8 
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admitted, but was ultimately unsuccessful. Hill also provides the Court with a 
plethora of cases in his 120-page memorandum in support of his 2255 motion, none 
of which support his conclusion or are binding on this Court. Hill further contends 
that his trial counsel was obligated to recite nonbinding cases to the Court in his 
attempt to have Ms. Dery's testimony admitted, even when faced with the 
Government's cited binding authority in this Circuit holding that the exact type of 
evidence Hill was trying to introduce was not admissible. 
Construing the pending 2255 motion liberally, it appears Hill seeks to 
relitigate the Court's prior ruling excluding Ms. Dery's testimony and is now 
attempting to relitigate the issue by placing the blame on his attorney. The Court 
further notes that even if Hill's trial counsel was successful in getting Ms. Dery's 
expert testimony in at trial, the Government was still prepared to call its own expert 
witness in rebuttal to refute her testimony. Accordingly, having considered the 
foregoing, the Court finds. that Hill has failed to show that his trial counsel's failure 
to get Ms. Dery' s expert testimony admitted at trial was either deficient or 
prejudicial, as is required under binding Fifth Circuit precedent. Therefore, the Court 
finds that summary judgment should be granted as to Claim One. The Court now 
turns to address Claim Two. 
9 
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B. Claim Two 
Hill also contends that his attorney was ineffective by not ensuring Hill was 
present at an in-camera hearing, arguing that he "had a constitutionally protected 
right to be present/ or have representation, at the in-camera hearing involving the 
confidential informant" and that because he "was blocked from attending[,]" 
"prejudice is presumed." 12 The Government notes that the Fifth Circuit has made 
clear, in direct contrast to Hill's argument, that "the defendant's sixth amendment 
right to assistance of counsel ... is not violated by an in camera proceeding used to 
determine whether the disclosure of an informant's identity would benefit the 
defense and therefore be revealed." United States v. De Los Santos, 810 F.2d 1326, 
1335 (5th Cir. 1987). 
Despite the Fifth Circuit's clear language referenced above, Hill accuses his 
attorney of being constitutionally deficient by failing to object to the Court's order 
denying Hill's attendance at the December 17, 2018, in-camera hearing. The 
Government further notes for the Court the Fifth Circuit's guidance in Henderson v. 
Cockrell, 333 F.3d 592, 602 (5th Cir.2003), in which the Fifth Circuit held that trial 
counsel cannot "render deficient performance by failing to make a futile objection." 
Having considered the foregoing, the Court finds that Hill has failed to show that his 
12 See Pro Se Petitioner Marc Anthony Hill's Memorandum of Law in Support of 
Petitioner's Motion Pursuant to 28 U.S.C. § 2255, Criminal Document No. 841 at 16. 
10 
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trial counsel's decision not to object to the Court's in-camera hearing ruling was 
either deficient or prejudicial as required under binding Fifth Circuit precedent. 
Therefore, the Court finds that summary judgment should be gr~nted as to Claim 
Two. The Court will now consider Claim Three. 
C. Claim Three 
Hill contends that his appellate attorney was ineffective by failing to raise 
Claims One and Two in Hill's appeal. The Government contends Hill cannot meet 
his burden under the Strickland test to show his appellate counsel was ineffective. 
The standards for ineffective trial and appellate counsel are the same. United 
States v. Merida, 985 F.2d 198,202 (5th Cir. 1993). Although counsel must discover 
and assert "solid, meritorious arguments based on directly controlling precedent" he 
or she is "not deficient for failing to raise every meritorious claim that may be 
pressed on appeal." United States v. Williamson, 183 F.3d 458, 462-63 (5th Cir. 
1999). The Constitution does not require appellate counsel to raise every 
nonfrivolous ground that might be pressed on appeal. Ellis v. Lynaugh, 873 F.2d 
830, 840 ( 5th Cir. 1989). 
Here, • Hill claims that had his appellate counsel pursued the two claims 
discussed herein, "his conviction and sentence would've been overtumed." 13 The 
13 See Pro Se Petitioner Marc Anthony Hill's Memorandum of Law in Support of. 
Petitioner's Motion Pursuant to 28 U.S. C. § 2255, Criminal Document No. 841 at 17. 
11 
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Government contends that there is no indication that raising the issues of Hill's 
expert witness and lack of presence at an in-camera hearing would have been 
successful. The Government further notes for the Court Hill's appellate counsel's 
success upon appeal in securing an acquittal on Count Four of the indictment. See 
Hill, 63 F.4th at 363-64. The Court has independently reviewed each of the 120 
pages filed by Hill in support of his 2255 motion, and cannot construe any other 
independent failure alleged against Hill's appellate counsel other than the Claims 
already ruled upon, in detail, in this Order. Accordingly, the Court finds that Hill 
fails to show that his appellate counsel's representation was constitutionally 
deficient as required under binding Fifth Circuit precedent. Therefore, the Court 
finds that summary judgment should be granted as to Claim Three. The Court now 
turns to Hill's omnibus supplemental 2255 motion. 
D. Pro Se Petitioner's Omnibus Motion for Post Conviction Relief 
On August 8, 2025, Hill filed an omnibus motion for post-conviction relief, 
adding an additional claim for ineffective assistance of counsel based on his trial 
counsel's alleged failure to anticipate changes in the federal sentencing guidelines.14 
The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year 
statute of limitations in which a federal prisoner may file a § 225 5 motion. See 28 
14 See Pro Se Petitioner Marc Anthony Hill's Omnibus Motion for Post-Conviction 
Relief, Criminal Document No. 899 at 1-2. 
12 
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U.S.C. § 2255(±). By default, the limitations period runs from the "date on which the 
judgment of conviction becomes final." 28 U.S.C. § 2255(±)(1 ). The "movant in a·§ 
2255 proceeding has the burden of demonstrating that his filings are timely." United 
States v. Duran, 934 F.3d 407, 413 (5th Cir. 2019). 
Here, the central inquiry before the Court is whether Hill's second motion 
brought pursuant to § 2255 is timely. To determine timeliness, the Court must 
determine on what date the one-year statute of limitations began to run. A review of 
the record in this case reveals that the amended final judgment in this case was signed 
on May 2, 2023.15 On August 8, 2025, Hill filed his omnibus § 2255 motion, over 
fifteen months after his appeal was resolved by the Fifth Circuit and the amended 
• final judgment was issued in this matter. Therefore, having considered the foregoing, 
the Court finds that Hill's second omnibus § 2255 motion filed on August 8, 2025, 
is untimely, in violation of the application statute of limitations, and should be 
dismissed accordingly. 
15 See Amended Final Judgment, Criminal Document No. 781 at 1-6. 
13 
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IV. CONCLUSION 
Based on the foregoing, the Court hereby 
ORDERS that Petitioner Marc Anthony Hill's Motion to Vacate, Set Aside, 
or Correct Sentence under 28 U.S.C. § 2255 (Civil Document No. 1, Criminal 
Document No. 840) is DENIED. 16 The Court further 
ORDERS that Petitioner's Supplemental Omnibus Motion for Post­
Conviction Relief (Criminal Document No. 899) is DENIED. The Court further 
ORDERS that Respondent United States of America's Motion for Summary 
Judgment (Criminal Document No. 864) is GRANTED. 
SIGNED at Houston, Texas, on this J £ day of June, 2026. 
United States District Judge 
16 A district court may deny a certificate of appealability, sua sponte, without 
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 
2000). After careful review of the pleadings and the applicable law, the Court c_oncludes 
reasonable jurists would not find its assessment of the claims debatable or wrong. See Slack 
v. McDaniel, 529 U.S. 473, 483-84 ("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 ... includes showing that reasonable jurists could debate whether ... the petitioner 
should have been resolved in a different manner .... "). Because Hill does not allege facts 
showing his claim could be resolved in a different manner, a certificate of appealability 
will not be issued. • 
14 
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