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govinfo:USCOURTS-txsd-4_24-cv-01206-0
.,
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JORGE GONZALEZ, §
§
§
§
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
§ Civil Action No. 4:24-CV-01206
§ Criminal Action No. 4:20-CR-0453
§
§
§
ORDER
Pending before the Court is Petitioner Jorge Gonzalez's Amended Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Civil Document No.
3, Criminal Document No. 57). Having considered the motion, submissions, and
applicable law, the Court determines that the Petitioner's motion should be denied.1
I. BACKGROUND
On September! 7, 2020, Petitioner Jorge Gonzalez ("Gonzalez") was charged
in a one-count indictment with possession of a controlled substance, fifty grams or
more of metharnphetamine, with the intent to distribute in violation of Title 21,
1 The Court notes Respondent's request for an evidentiary hearing on the limited
issue of whether Gonzalez received ineffective assistance of counsel based on defense
counsel's alleged failure to file a timely notice of appeal. See United States' Memorandum
in Opposition to Petitioner's 28 US. C. • § 2255 Motion and Request for a Limited
Evidentiary Hearing, Document No. 60 at 20. Considering the Court's findings herein, the
Court determines that the Government's request should be denied as moot.
United States District Court
Southern District of Texas
ENTERED
June 16, 2026
Nathan Ochsner, Clerk
Case 4:24-cv-01206 Document 4 Filed 06/16/26 in TXSD Page 1 of 11
U.S.C. §§ 841(a)(l) and 841(b)(l)(A)(viii). 2 On May 14, 2021, Gonzalez plead
guilty to the one count with which he was charged.3 On November 19, 2021, this
Court sentenced Gonzalez to a total term of imprisonment of210 months, with five
years of supervised release to follow.4 On September 19, 2022, Gonzalez filed his
notice of appeal. 5 In the United States Court of Appeals for the Fifth Circuit,
appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), arguing that the appeal presented no non-frivolous issues to adjudicate. In a
per curiam decision, the Fifth Circuit remanded Gonzalez's appeal, instructing this
Court to allow Gonzalez to file an amended motion for ineffective assistance of
counsel.6 On April 29, 2024, Gonzalez moved,pro se, to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255.7
2 See Indictment, Criminal Document No. 1 at 1-2.
3 See Minute Entry for Re-Arraignment Proceedings, Criminal Document No. 22 at
1.
4 See Judgment, Criminal Document No. 36 at 1-6.
5 Pro Se Petitioner Jorge Gonzalez's Notice of Appeal, Criminal Document No. 38
at 1.
6 Order of United States Court of Appeals for the Fifth Circuit, Criminal Document
No. 51.
7 See Pro Se Petitioner Jorge Gonzalez's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody, Criminal Document No.
57 at 1-19.
2
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IL 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,
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
3
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presume the petitioner was fairly convicted. Id. at 164; see also United States v.
Cervantes, 132 F.3d 1106, 1109 (5th Cit. 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
first time in a § 2255 motion, United States v. Shaid, 937 F.2d 228, 232 (5th Cir.
1991) (en bane).
III. LAW & ANALYSIS
Gonzalez moves, pro se, to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 on five grounds: (1) Gonzalez's counsel was ineffective in
failing to file a notice of appeal ("Claim One"); (2) Gonzalez's counsel "was .
infective in failing to seek deviation from the Guidelines to ensure his offense level
was calculated for methamphetamine mixture rather than actual methamphetamine"
("Claim Two"); (3) Gonzalez's counsel "was infective in failing to object to upward
variance." ("Claim Three"); ( 4) Gonzalez's counsel failed to object to an upward
variance "due to prior charges for which guilt was not established" ("Claim Four");
and (5) Gonzalez's counsel "was ineffective because he failed to object when the
4
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Court hampered his right to allocute" ("Claim Five"). 8 In response, the Government
contends that Defense counsel did not provide ineffective assistance of counsel at
sentencing, 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, 551 U.S. 89, 94
(2007). Accordingly, the Court will consider, in tum, each of Gonzalez's claims.
A Claim One
Gonzalez first contends that his defense counsel, Mr. Walter McNab Miller,
IV, was ineffective by failing to file a notice of appeal. 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 on an 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
8 See Pro Se Petitioner Jorge Gonzalez's Motion Under 28 US. C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody, Criminal Document No.
57 at 13-18.
5
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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 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).
Here, the Court has considered.Claim One and noted Gonzalez's contention
that Mr. Miller was ineffective by failing to file an appeal after the sentencing
hearing in this case. The Government notes for the Court Gonzalez's willing and
voluntary plea of guilty at the Court's May 19, 2021 Re-Arraignment Hearing, in
which Gonzalez signed a plea agreement with the Government, on the record, in
which he waived his right to appeal or collaterally attack his conviction and sentence
6
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on any ground other than for ineffective assistance of counsel. The Government
further notes for the Court that Gonzalez entered a plea of guilty after affirmatively
answering a plethora of inquiries from the Court to ensure his plea was made
knowing and voluntarily. Gonzalez now brings a claim for ineffective assistance of
counsel against Mr. Miller for failing to file an appeal, despite Gonzalez's express
understanding, on the record, that he waived his right to appeal at the Court's May
19, 2021 Re-Arraignment Hearing. Having considered the foregoing, the Court finds
that Gonzalez has failed to show Mr. Miller's decision not to file a notice of appeal .
was either deficient or prejudicial as required under binding Fifth Circuit precedent.
Thus, the Court finds that Claim Orie should be denied. The Court now turns to
address Claim Two.
B. Claim Two
Gonzalez contends that his attorney was ineffective by "failing to seek
deviation from the Guidelines to ensure his offense level was calculated for
methamphetarriine mixture rather than actual methamphetamine. "9 In response, the
Government notes for the Court a swath of binding precedent from the United States
Court of Appeals for the Fifth Circuit, affirming the use of the Federal Drug Tables
9 See Pro Se Petitioner Jorge Gonzalez's Motion Under 28 US.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody, Criminal Document No.
57 at 14.
7
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distinction between actual methamphetamine and methamphetamine mixtures in
sentencing guideline calculations. See United States v. Molina, 469 F .3d 408, 413-
14 (5th Cir. 2006) (holding that the sentencing disparity created by the ten to one
ratio between actual methamphetamine and a substance containing
methamphetamine is not irrational or arbitrary and does not violate the Due Process
Clause); see also United States v. Alcala, 668 Fed. Appx. 83 (5th Cir. 2016)
(affirming the usage of the Federal Drug Equivalency Tables for Schedule I and II
stimulants); see also United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014)
(noting that "[i]n the case of a mixture or substance containing ... methamphetamine,
use the offense level determined by the entir~ weight of the mixture or substance, or
the offense level determined by the weight of the ... methamphetamine ( actual),
whichever is greater.").
The Government also contends that Gonzalez fails to demonstrate how his
defense counsel was ineffective for failing to move for a downward variance,
because this Court had already made clear at the Sentencing Hearing that the
imposed sentence of210 months of incarceration was an appropriate term in light of
the relevant sentencing factors. Having considered the foregoing, the Court finds
that Gonzalez has failed to show Mr. Miller's decision not to move for a downward
variance at sentencing was either deficient or prejudicial as required under binding
8
Case 4:24-cv-01206 Document 4 Filed 06/16/26 in TXSD Page 8 of 11
Fifth Circuit precedent. Thus, the Court finds that Claim Two should be denied. The
Court will now consider Claims Three and Four.
C. Claims Three and Four
Gonzalez further contends that Mr. Miller was ineffective by failing to object
to an upward variance Gonzalez believes was imposed by this Court. In response,
the Government contends that such objection would be frivolous, as this Court
sentenced Gonzalez within the guideline range.
A review of the Final Presentence Investigation Report in this matter reveals
that Gonzalez's guideline range was between 188 and 235 months of incarceration. 10
The Court further notes the actions taken at the November 19, 2021 Sentencing
Hearing, in which the Court considered the possibility of implementing an upward
variance in this case, but ultimately sentenced Gonzalez to a term of 210 months of
incarceration, a sentence well within the guideline range. 11 Therefore, the Court
finds that Gonzalez cannot show that his counsel was ineffective for failing to object
to the imposition of an upward variance that was never imposed, or that he was
prejudiced by such alleged failure. Thus, the Court finds that Claim Three and Four
should be denied. The Court will now consider Claim Five.
10 See Final Presentence Investigation Report, Criminal Document No. 28 at 16.
11 See Transcript of November 19, 20 21 Sentencing Hearing, Criminal Document
No. 47 at 1-15.
9
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D. Claim Five
Gonzalez's last contention is that Mr. Miller "was ineffective because he
failed to object when the court hampered his right to allocute."12 Gonzalez further
contends that the Court interrupted Gonzalez and refused to allow counsel to offer
evidence. The Government contends that Mr. Miller was not ineffective for failing
to object when this Court, allegedly, prevented Gonzalez from discussing his
pending state court charges at sentencing. A review of the transcript of the
Sentencing Hearing in this case reveals that the Court did not prevent Gonzalez or
defense counsel from discussing relevant information during sentencing. 13 The
Court notes the unambiguous language in the transcript, showing that: (1) Mr. Miller
was provided an opportunity to argue for an appropriate sentence; and (2) Gonzalez
was permitted to speak, at length, with the assistance of Mr. Miller.14 The Court
further notes that the Court at no point stated in any way, shape, or form, that
Gonzalez was precluded from discussing his pending felony charges in state court at
sentencing. Having considered the foregoing, the Court finds that Gonzalez has
12 See Pro Se Petitioner Jorge Gonzalez's Motion Under 28 US. C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody, Criminal Document No.
57 at 17.
13 See Transcript of November 19, 2021 Sentencing Hearing, Criminal Document
No. 47 at 1-15.
14 Id.
10
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failed to show that Mr. Miller's actions during Gonzalez's allocution was either
deficient or prejudicial as required under binding Fifth Circuit precedent.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Petitioner Jorge Gonzalez's Amended Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (Civil Document No. 3,
Criminal Document No. 57) is DENIED. 15
SIGNED at Houston, Texas, on this _/j_ day of June, 2026.
<P-�� DAVID HITTNER
United States District Judge
15 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 concludes
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 jµrists could debate whether ... the petitioner
should have been resolved in a different manner .. .. "). Because Gonzalez does not allege
facts showing his claim could be resolved in a different manner, a certificate of
appealability will not be issued.
11
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