Blanco v. USA

Filing 14

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED the motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 1 is DENIED. A certificate of appealability is DENIED. It is further ORDERED all motions by either party not previously ruled on are hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 9/23/2024. (xl)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MANUEL LOZANO BLANCO

§
§
§
§
§

VS.
UNITED STATES OF AMERICA

CIVIL ACTION NO. 4:21-CV-113
(4:17-CR-174(11))

MEMORANDUM OPINION AND ORDER
Pending before the Court is pro se Movant Manuel Lozano Blanco’s motion to vacate, set
aside, or correct sentence filed pursuant to 28 U.S.C. § 2255, in which he asserts constitutional
violations concerning his Eastern District of Texas, Sherman Division conviction and sentence.
After reviewing the case, the Court concludes that Movant’s § 2255 motion should be denied and
the case should be dismissed with prejudice.
I. BACKGROUND
On February 6, 2020, the Court sentenced Movant to 135 months’ imprisonment after he pled
guilty pursuant to a written plea agreement to Conspiracy to Possess with the Intent to Distribute
Heroin, in violation of 21 U.S.C. § 846. Crim. ECF (Dkt. #416 & 491). The plea agreement
contained the following relevant provisions:
3. SENTENCE: The maximum penalties the Court can impose include:
a.

If 1 kilogram or more of a mixture or substance containing a
detectable amount of heroin – not less than 10 years and not more
than life imprisonment, a fine not to exceed $10 million, or both;
supervised release of at least five years;

b.

a mandatory special assessment of $100.00, which must be paid by
cashier’s check or money order to the United States District Clerk
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before sentencing;
c.

forfeiture of property involved or traceable to the criminal offense;

d.

restitution to victims or to the community; and

e.

costs of incarceration and supervision.

4. GUIDELINE STIPULATIONS: The parties stipulate to the following factors that
affect the appropriate sentencing range in this case:
a.

The amount involved during the term of the conspiracy involved at
least 30 kilograms but less than 90 kilograms of a mixture or
substance containing a detectable amount of heroin. This amount was
involved in the conspiracy after the defendant entered the conspiracy,
was reasonably foreseeable to the defendant, and was part of jointly
undertaken activity resulting in a base offense level pursuant to
U.S.S.G. § 2D1.1 of 36.

b.

A reduction of three levels for acceptance of responsibility under
U.S.S.G. § 3E1.1 applies; however, this stipulation is subject to the
recommendation of the United States Probation Office. If
circumstances indicating that the defendant has not accepted
responsibility become known after execution of this Agreement,
this stipulation is void and the defendant may object to the failure
of the Presentence Report to recommend the reduction. The
government’s request to decrease the offense level by one level in
accordance with U.S.S.G. § 3E1.1(b) is contingent on the
defendant demonstrating acceptance of responsibility for the
offense conduct and cooperating fully in recovering restitution
for all relevant conduct.

c.

The defendant does not qualify for a reduction under U.S.S.G.
§ 3B1.2 (Mitigating Role) and a decrease of two levels.

Crim. ECF (Dkt. #368 at 2-3). Movant did not file a direct appeal.
On February 5, 2021, Movant filed his motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, alleging the following points of error:

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1.

Ineffective assistance of counsel for failing to advise Movant “that a
prosecutor’s failure to prove just a single element of the charged offense
conduct alleged in COUNT ONE of the First Superseding Indictment would
result in acquittal as a matter of constitutional law, Movant would have
persisted in the NOT GUILTY plea and exercised the right to a jury trial;”

2.

Ineffective assistance of counsel for failing to know “that Movant was in fact
at least arguably eligible for a reduced term of imprisonment, consistent with
statutory law and the United States Sentencing Guidelines, that would have
been as much as five level points below the sentencing range imposed;”

3.

Ineffective assistance of counsel for “advising Movant to: i) waive the right
to a jury trial; ii) stipulate to factualy [sic] untrue events and conduct; iii)
notwithstanding Movant’s apprisal that he was not responsible for anywhere
near 30 kilograms of heroin, and that Movant did not know or agree to
partake in [a]ny act–legal or illegal–with any of the charged individuals
identified in COUNT ONE of the First Superseding Indictment (codefendants
2 through 9); and, iv) despite Movant’s adamant apprisal that charged
elements of the offense were positively unprovable/unsustainable, counsel
nevertheless advised and urged Movant to change his plea to GUILTY
knowing that the plea agreement expressly and purposefully charged
defecient [sic] facts that would act to deprive Movant safety valve and/or
mitigating role base offense level adjustments that would have the effect of
reducing imprisonment exposure by as many as five offense levels (i.e. 78
months vis a vis the 135 months imposed) below the range ultimately
imposed;”

4.

Ineffective assistance of counsel when “he failed to object to the sentence as
imposed, or was otherwise constitutionally ineffective because counsel was
derlict [sic] in his fiduciary duty to know that the procedural process in which
the Court determined the term of imprisonment, as imposed and reflected on
the subsequent Judgement and Order of Commitment, was not imposed
‘pursuant to the Sentencing Reform Act of 1984’ as mandated.”

See Civil Action No. 4:21cv113 (Dkt. #1).
The Government was ordered to show cause on April 1, 2021 (Dkt. #6). On August 16,
2021, the Government filed a Response (Dkt. #11). The Government argues that the record refutes
Movant’s points of error one through three, that the record reflects that Movant’s plea was knowing
and voluntary, and Movant’s last point of error is conclusory. More than ample time has passed, yet
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Movant has failed to file a reply.
II. STANDARD OF REVIEW
The first paragraph of 28 U.S.C. § 2255 sets out the claims which are cognizable under the
statute. These are: (1) the sentence was imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in
excess of the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack.
After conviction and exhaustion, or waiver, of any right to appeal, courts are entitled to
presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152,
164-65 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991). A defendant can
challenge his conviction or sentence after it is presumed final on issues of constitutional or
jurisdictional magnitude only, and 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
errors. Shaid, 937 F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for
transgressions of constitutional rights and other narrow injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v.
Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words, a writ of habeas corpus
will not be allowed to do service for an appeal. Davis v. United States, 417 U.S. 33, 345 (1974);
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1995). Further, if issues “are raised and
considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later
collateral attack.” Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979) (citing Buckelew v
United States, 575 F.2d 515, 517-18 (5th Cir. 1978)).
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IV. ANALYSIS
In order to establish ineffective assistance of counsel, Movant must prove counsel’s
performance was deficient, and the deficient performance prejudiced Movant’s defense. Strickland
v. Washington, 466 U.S. 668, 689-92 (1984). Because Movant must prove both deficient
performance and prejudice, failure to prove either will be fatal to his claim. Johnson v. Scott, 68
F.3d 106, 109 (5th Cir. 1995).
Judicial scrutiny of counsel’s performance is highly deferential. Strickland, 466 U.S. at 689.
As a result, there is a strong presumption that counsel rendered reasonable, professional assistance,
and that the challenged conduct was the result of a reasoned trial strategy. Id.; United States v.
Fields, 565 F.3d 290, 294 (5th Cir. 2009). To overcome the presumption that counsel provided
reasonably effective assistance, Movant must prove his attorney’s performance was objectively
unreasonable in light of the facts of the movant’s case, viewed as of the time of the attorney’s
conduct. Strickland, 466 U.S. at 689-90; Fields, 565 F.3d at 294.
In addition to proving counsel’s performance was deficient, Movant is required to show
prejudice resulting from counsel’s inadequate performance. Strickland, 466 U.S. at 691-92. Movant
must establish “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.” Id. at 694. Mere allegations of prejudice are insufficient;
the Movant must affirmatively prove, by a preponderance of the evidence, that he was prejudiced
as a result of counsel’s deficient performance. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).
A voluntary guilty plea waives all nonjurisdictional defects in the proceedings against the
defendant. “This includes all claims of ineffective assistance of counsel, except insofar as the
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alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea[.]” Smith v.
Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (internal and concluding citations omitted). This includes
claims regarding a failure to investigate or a failure to challenge police misconduct. United States
v. Glinsey, 209F.3d 386, 392 (5th Cir. 2000). In the context of a guilty plea, a defendant must show
“that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The court must
determine that the plea represents “a voluntary choice among the alternative courses of action open
to the defendant.” Id. 474 U.S. at 56. “Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies.
Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Lee v. United States, 582 U.S. 357, 369 (2017). Additionally, the Supreme Court has
determined that “the representations of the defendant ... [at a plea proceeding] as well as any findings
made by the judge accepting the plea constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of verity.” Blackledge
v. Allison, 431 U.S. 63, 73-74 (1977). “If a defendant understands the charges against him,
understands the consequences of his guilty plea, and voluntarily chooses to plead guilty, without
being coerced to do so, the guilty plea ... will be upheld on federal review.” Stano v. Dugger, 921
F.2d 1125, 1141 (11th Cir. 1991) (en banc).
Whether the representation was deficient is determined as measured against an objective
standard of reasonableness. See Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999). “A
conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with
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obvious unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002) (quoting Garland
v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). “There is a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional assistance.” Woodward v. Epps, 580
F.3d 318, 329 (5th Cir. 2009) (quoting Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989)).
Movant’s points of error 1 through 3 are, in essence, challenges to the voluntariness of the
plea. Here, on a fully developed record on federal habeas review, it is clear Movant’s statements
made in open court, as well as his signed Plea Agreement and Factual Basis, show that Movant’s
decision to plead guilty was voluntary and knowing. In his signed Factual Basis, Movant stated:
3.

That Manuel Lozano Blanco and one or more persons in some way or
manner made an agreement to commit the crime charged in the First
Superseding Indictment, to knowingly and intentionally possess with the
intent to distribute and dispense at least 30 kilograms but less than 90
kilograms of a mixture or substance containing a detectable amount of heroin.

4.

That Manuel Lozano Blanco knew the unlawful purpose of the agreement
and joined in it with the intent to further it.

5.

That Manuel Lozano Blanco knew that the amount involved during the term
of the conspiracy involved at least 30 kilograms but less than 90 kilograms
of a mixture or substance containing a detectable amount of heroin. This
amount was involved in the conspiracy after the defendant entered the
conspiracy, was reasonably foreseeable to the defendant, and was part of
jointly undertaken activity.

6.

That Manuel Lozano Blanco’s role in this conspiracy was to supply coconspirators with kilogram quantities of heroin, imported from Mexico, from
various sources which would then be distributed to other co-conspirators and
co-defendants during the term of the conspiracy in the Eastern and Northern
Districts of Texas.

Crim. ECF (Dkt. #370). Movant and his trial counsel signed the Factual Basis, wherein Movant
acknowledged his role in the conspiracy and agreed that the conspiracy involved at least 30
kilograms but less than 90 kilograms of heroin. During the plea hearing, Movant affirmed that he
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waived his right to a jury trial, that he knew the statutory range of punishment in his case was not
less than 10 years and no more than life imprisonment, a fine not to exceed $10 million or twice any
pecuniary gain, and a term of supervised release of at least 5 years. Crim. ECF (Dkt. #492 at 10-11).
Movant also affirmed that he had reviewed the applicable Guideline provisions and range with his
trial counsel and that while the Court could refer to the Guidelines, the Court was not bound by
them. Id. at 11. Movant affirmed that while he and the Government agreed that certain Guideline
stipulations applied in his case, the Court was not bound by them and could apply a different
Guideline provision. Id. at 11-12. Movant stated in the affirmative that no one had forced or
threatened him to plead guilty and that no other promises or assurances had been made in an effort
to induce a plea of guilty. Id. at 12. Finally, Movant stated that everything in the Factual Basis was
true and correct. Id. at 17. Movant also affirmed that the amount that he was responsible for as
stated in the Factual Basis was correct and that he agreed with his role as stated therein. Id. at 18-19.
Particularly relevant is the following exchange at sentencing:
MR. HAYNES:

Which I had assumed the Court has reviewed, so I won’t
reiterate everything that’s contained in that. However, Your
Honor, I would point out that our request at this time would
be either a downward departure or a variance that would
allow the Court to sentence Mr. Blanco to a punishment range
– to a sentence of 120 months, which would be 15 months
below the calculated Sentencing Guideline range. That is the
minimum for the charge that he is facing.

THE COURT:

Well, let me ask you this. Why – what happened that he
didn’t qualify for safety valve?

MR. HAYNES:

He decided that cooperating with the Government was not
something that he wanted to do.

THE COURT:

Yeah, but for safety valve, it only requires him to give
information regarding his actions. It doesn’t require him to
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cooperate against others.
MR. HAYNES:

Yes, Your Honor.

THE COURT:

So he holds that – he had the ability to lower his sentence by
taking that action, so why should I consider a variance when
he didn’t do anything to help himself?

MR. HAYNES:

Our arguments are simply based on the history and
characteristics of the Defendant himself, Your Honor, and the
fact that he has zero criminal history in his past, and the other
things that we’ve set out in the sentencing memorandum that
you already reviewed. So we were basing it simply on that
and the factors of 3553(a) that I believe that the sentence of
120 months is sufficient but not greater than necessary to
accomplish the goals of 3553(a).

THE COURT:

And what would have been the Guideline range if he had
qualified for safety valve? I mean, I can calculate it here
quickly.

MR. HAYNES:

I can’t say I calculated it personally, Your Honor, to be
honest.

THE COURT:

It would have been 108 to 135 if he had qualified for safety
valve, which he completely controlled his own fate and didn’t
try to help himself.
I guess I am trying to understand why should I grant a
variance to a defendant who’s not going to at least help
himself when he has that ability. I mean, give me some
reason. Because it just mystifies me why I should help him
when he’s not going to try to help himself.

MR. HAYNES:

I understand, Your Honor.

THE COURT:

I mean, give me – I’m giving you an opportunity to give me
a good reason why I should ignore that fact and still grant him
a variance.

MR. HAYNES:

We had numerous discussions about his desires and how he
wanted to handle his case, and I can’t say that I can get inside
of his head and tell you exactly what it was that motivated
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him to make the decision that he made.
THE COURT:

Okay. That’s fine. I don’t want you – that’s fine.

Crim. ECF (Dkt. #491 at 4-6). This demonstrates that Movant had the choice to cooperate and
become eligible for the safety valve and made a deliberate choice not to do so. Movant’s post-hoc
assertions here regarding counsel are not credible.
The record, as well as Movant’s statements, show Movant’s choice to plead guilty was a
voluntary choice among the alternative courses of action open to him. “‘Solemn declarations in open
court carry a strong presumption of verity,’ forming a ‘formidable barrier in any subsequent
collateral proceedings.’” United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (quoting
Blackledge, 431 U.S. at 73–74). In light of the statements Movant made in open court, it cannot be
concluded that Movant’s plea was involuntary or unknowingly entered. The record demonstrates
Movant's plea was knowing, voluntary and intelligent. Movant has failed to show either deficient
performance or prejudice relating to his claims. Accordingly, Movant’s claim that his plea was
involuntary is without merit and points of error 1 through 3 are denied.
With respect to point of error 4, the Court agrees with the Government that this claim is
conclusory. Movant does not explain how the imposition of his sentence does not comply with 18
U.S.C. § 3621(a). Nor does Movant explain how any action by his trial counsel would affect the
sentence that was imposed. Conclusory allegations, which are unsupported and unsupportable by
anything else contained in the record, do not raise a constitutional issue in a habeas proceeding. Ross
v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). This claim is denied.

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VI. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.”

28 U.S.C.

§ 2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, this Court, nonetheless,
addresses whether Movant would be entitled to a certificate of appealability. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (explaining that a district court may sua sponte rule on
a certificate of appealability because “the district court that denies a [movant] relief is in the best
position to determine whether the [movant] has made a substantial showing of a denial of a
constitutional right on the issues before the court. Further briefing and argument on the very issues
the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected constitutional claims
on the merits, the movant must demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429,
431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without reaching
the underlying constitutional claim, a [certificate of appealability] should issue when the movant
shows, at least, that jurists of reason would find it debatable whether the motion states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Id.

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In this case, reasonable jurists could not debate the denial of Movant’s § 2255 motion on
substantive or procedural grounds, nor could they find that the issues presented are adequate to
deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003) (citing
Slack, 529 U.S. at 484). Accordingly, Movant is not entitled to a certificate of appealability.
VII. CONCLUSION AND ORDER
In sum, the record reflects that Movant’s plea was knowing and voluntary and that Movant’s
after-the-fact assertions of ineffective assistance of counsel are not supported by the record. Finally,
Movant’s point of error 4 is conclusory and does not support a constitutional violation.

.

It is therefore ORDERED the motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 is DENIED. A certificate of appealability is DENIED. It is further ORDERED all
motions by either party not previously ruled on are hereby DENIED.
IT IS SO ORDERED.

SIGNED this 23rd day of September, 2024.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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