Martinez v. USA

Filing 31

Memorandum Opinion and Order denying 2 MOTION to Vacate under 28 U.S.C. 2255 and dismisses this action with prejudice. (Ordered by Senior Judge Sidney A Fitzwater on 5/9/2024) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERTO ELIAS MARTINEZ,
ID # 19985-078,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 3:22-CV-0737-D
(Criminal No. 3:18-CR-066-D-5)

MEMORANDUM OPINION
AND ORDER
Movant Roberto Elias Martinez (“Martinez”), a federal prisoner, moves to vacate, set
aside, or correct his sentence in Criminal No. 3:18-CR-066-D-5 under 28 U.S.C. § 2255. For
the reasons that follow, the court denies the motion and dismisses this action with prejudice.
The court also denies a certificate of appealability.
I
Martinez was charged in a ten-count indictment with two counts of conspiracy to
possess with intent to distribute a controlled substance and one count of possession with
intent to distribute a controlled substance. He was appointed counsel and pleaded guilty to
the possession count under a plea agreement.
In his plea agreement, Martinez recognized that pleading guilty to the charged offense
would subject him to imprisonment for a period not to exceed 20 years. He understood the
court alone would impose his sentence after considering the advisory sentencing guidelines,
that no one could predict with certainty the outcome of the court’s consideration of the

guidelines, and that he would not be allowed to withdraw his plea if his sentence was higher
than expected. He acknowledged that he had thoroughly reviewed all legal and factual
aspects of the case with his counsel, was satisfied with his counsel’s representation, had
received satisfactory explanations concerning each paragraph of the plea agreement, each of
his rights affected by the agreement, and the available alternatives to entering into the
agreement, and concluded it was in his best interest to enter into the agreement and its terms
instead of proceeding to trial. He also waived his right to appeal his conviction and sentence
and his right to contest the conviction and sentence in any collateral proceeding, except in
the limited circumstances set out in the plea agreement. He agreed that the plea agreement
was a complete statement of the parties’ agreement.
At his rearraignment, Martinez stated under oath that he understood that the court
alone would decide his sentence, that the sentencing guidelines were advisory, that his
counsel’s professional opinion concerning what he thought the advisory guideline range
might be was not a guarantee or promise, that neither the court nor Martinez’s counsel would
be able to determine the applicable advisory guideline range until after a written presentence
investigation report (“PSR”) was completed, and that no one, including Martinez’s counsel,
could predict in advance what his sentence would be. He further understood that if the court
imposed a sentence more severe than he expected, he would still be bound by his guilty plea
and would have no right to withdraw it. He affirmed that he understood his plea documents
before he signed them, that he was not pleading guilty based on any promises by anyone
other than those set forth in the plea documents, and that no one had threatened or attempted
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in any way to force him to plead guilty. He pleaded guilty, and the court found that his plea
was knowing and voluntary.
The United States Probation Office prepared a PSR and addenda for purposes of
sentencing. Martinez was held accountable for 20,056.70 kilograms of marihuana equivalent
based on his delivery of 2 ounces of heroin to an undercover officer on one occasion and 10
kilograms of methamphetamine from his involvement in relevant conduct. His base offense
level was 34 based on the quantity of drugs for which he was held accountable. Two levels
were added because the offense involved methamphetamine imported from Mexico, and
three levels were added for Martinez’s role as a manager or supervisor. Three levels were
deducted for acceptance of responsibility, resulting in a total offense level of 36. His total
offense level of 36 and criminal history category of III yielded a guideline imprisonment
range of 235 to 293 months. Because the statutory maximum sentence of imprisonment was
240 months, the guideline imprisonment range became 235 to 240 months.
Martinez objected to the PSR’s inclusion of the 10 kilograms of methamphetamine
to the quantity of drugs for which he was held accountable. The addenda addressed the
objection and supported the inclusion of the methamphetamine in determining Martinez’s
base offense level. After hearing arguments at the sentencing hearing on Martinez’s
objection, the court overruled it. By judgment dated August 5, 2019, Martinez was sentenced
to 240 months’ imprisonment and three years of supervised release. The Fifth Circuit
affirmed the judgment on direct appeal. On March 22, 2021 the Supreme Court denied
Martinez’s petition for a writ of certiorari.
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Martinez’s § 2255 motion is dated March 22, 2022 and was docketed on March 31,
2022. In it, he contends that (1) his Fifth Amendment rights were violated “by actions and
omissions of Government in connection with plea (and affecting sentencing)”; (2) his trial
counsel rendered ineffective assistance; and (3) his appellate counsel rendered ineffective
assistance. D. Mot. (ECF No. 2) at 7. Respondent United States of America (the
“government”) filed a response on July 28, 2022.1 Martinez filed a reply on November 2,
2022.
II
After conviction and exhaustion or waiver of the right to direct appeal, the court
presumes that a defendant has been fairly and finally convicted. United States v. Cervantes,
132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th
Cir. 1991) (en banc)). Post-conviction “[r]elief 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. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citation and internal
quotation marks omitted); see also United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001)
(“A defendant can challenge a final conviction, but only on issues of constitutional or
jurisdictional magnitude.”).
1

The government contends that Martinez’s § 2255 motion is time-barred, and Martinez
attests in an affidavit with his reply that he timely delivered the motion to prison authorities
for mailing within the limitations period. Because the limitations issue is not jurisdictional,
however, the court need not address it and proceeds to the merits of the § 2255 motion. See,
e.g., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
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III
Martinez contends that his Fifth Amendment rights were violated “by actions and
omissions of Government in connection with plea (and affecting sentencing)[.]” D. Mot.
(ECF No. 2) at 7. He asserts that his “guilty plea was to Count 10 of the indictment, a
specific incident & not ‘conspiracy.’” Id. And Martinez maintains that the government
“promised by the plea agreement, and intimated similarly, no additional charges based on the
conduct . . . [b]ut the Government withheld information (from [codefendant Ismael] Avila
[(“Avila”)]) . . . , and obtained the conviction by suppressing due process; then controlled
Movant’s sentencing exposure through the ‘neutral’ USPO, circumventing the contract’s
understood value.” Id. The government posits that this claim is procedurally defaulted
because Martinez did not raise it on direct appeal, and he has not shown cause and actual
prejudice for the default; that the claim is waived by the plea agreement; and that the claim
is without merit.
Here, Martinez argues that he understood the plea agreement “to mean [that the
government] could not ‘charge’ him, in layman’s terms, with any other conduct; he also
understood that certain pathways through the USSG briar patch were foreclosed,” that “the
quantity of drugs relevant to Martinez was immutable,” and that the factual resume’s
language “gave Martinez every reason to believe that the document, while not containing
‘every little detail,’ did address every relevant or material fact[.]” D. Reply (ECF No. 19)
at 4, 7 (emphasis in original). Martinez’s allegations are unsupported by, and contrary to,
the record.
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The record shows that the plea agreement and the factual resume do not contain any
promises or understandings by the government or Martinez regarding relevant conduct, the
quantity of drugs for which he would be held accountable for sentencing purposes, or how
the sentencing guidelines would be applied to calculate his applicable guideline range.
Rather, Martinez acknowledged in the plea agreement that he understood and agreed that the
sentence imposed was solely in the discretion of the court after consideration of the advisory
sentencing guidelines; no one could predict with certainty the outcome of the court’s
consideration of the guidelines in his case; the plea agreement was a complete statement of
the parties’ agreement; and no guarantees or promises from anyone had been made as to what
sentence the court would impose. He also agreed that the factual resume was not intended
to be a complete accounting of all the facts and events related to the charged offense.
Martinez further swore in open court that he was not pleading guilty based on any promises
other than those set forth in the plea documents and that no promise had been made to him
to get him to plead guilty other than what was in those documents.
Martinez’s alleged understanding of the plea documents was not reasonable given the
plain language of the plea documents regarding the sentencing guidelines and his
acknowledgments under oath before the court. And his allegations fail to show that the
government’s alleged conduct or omissions violated the plea agreement. See United States
v. Lewis, 476 F.3d 369, 387-88 (5th Cir. 2007) (applying general principles of contract law
and considering “‘whether the government’s conduct is consistent with the defendant’s
reasonable understanding of the agreement’” to determine whether a plea agreement has been
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violated) (quoting United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993)). The claim
is denied.2
IV
Martinez contends that his trial counsel rendered ineffective assistance “in connection
with rearraignment and sentencing proceedings[,]” and that his appellate counsel rendered
ineffective assistance “in connection with direct appellate proceedings[.]” D. Mot. (ECF No.
2) at 7.
A
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the effective assistance of counsel, both at trial and on appeal. Strickland v.
Washington, 466 U.S. 668, 686 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). To
successfully state a claim of ineffective assistance of counsel, the movant must demonstrate
that counsel’s performance was deficient, and that the deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687. A failure to establish either prong of the Strickland test
requires a finding that counsel’s performance was constitutionally effective. Id. at 697. The
court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000).
In determining whether counsel’s performance is deficient, courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. “The reasonableness of counsel’s actions may be

2

Because the court denies the claim on the merits, it need not resolve the parties’
arguments concerning procedural default and waiver.
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determined or substantially influenced by the defendant’s own statements or actions.” Id.
at 691. To establish prejudice, a movant “must show that there is 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; see also Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (stating that
prejudice inquiry focuses on “whether counsel’s deficient performance renders the result of
the trial unreliable or the proceeding fundamentally unfair.”). Reviewing courts must
consider the totality of the evidence before the finder of fact in assessing whether the result
would reasonably likely have been different absent counsel’s alleged errors. Strickland, 466
U.S. at 695-96.
On appeal, counsel need not raise every non-frivolous issue to render constitutionally
effective assistance. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999).
“Instead, to be deficient, the decision not to raise an issue must fall ‘below an objective
standard of reasonableness,’” and the court must consider whether the challenge “would have
been sufficiently meritorious such that [] counsel should have raised it on appeal.” United
States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting Strickland, 466 U.S. at 688);
see also Williamson, 183 F.3d at 463 (“Solid, meritorious arguments based on directly
controlling precedent should be discovered and brought to the court’s attention.”). To
demonstrate prejudice, a movant must show a reasonable probability that but for counsel’s
deficient representation, he would have prevailed on his appeal. Briseno v. Cockrell, 274
F.3d 204, 207 (5th Cir. 2001).
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B
Martinez contends that his trial counsel rendered ineffective assistance during pretrial
proceedings in advising him about his sentence exposure under the sentencing guidelines,
which rendered his guilty plea not knowingly, voluntarily, and intelligently made. He asserts
that
counsel assured him that the [plea agreement] bound the U.S.
Attorney’s Office in this District to dismiss all other charges
related to the underlying conspiracy against Movant and that, by
pleading guilty to the single count of substantive possession on
the specific date identified in the indictment (which was not a
conspiracy count), Movant was avoiding risk of attachment, at
sentencing, of “relevant conduct” otherwise attributable to the
broader activities described in Counts 1 and 2 of the indictment.
D. Mem. (ECF No. 3) at 2. Martinez asserts that, according to his counsel, he was exposed
“to a projected sentencing range of 24-30 months.” Id. Based on his counsel’s advice,
Martinez states that he agreed to plead guilty to the possession charge. According to him,
If I had been told, at that time, that the Government could or
would add some huge amount of drugs to my tally based on
what someone facing arrest themselves said, such that my
sentencing range would be “maxed out” to very nearly 20
years—which I consider a life sentence, at my age—I would
absolutely not have signed and agreed to plead guilty.
D. App. (ECF No. 20) at 2. Even if the court assumes, without deciding, that Martinez’s
counsel advised him about his sentence exposure under the sentencing guidelines, as alleged,
the record shows that his representation of Martinez was not constitutionally ineffective.3
3

Martinez concedes that he “really did tender his plea to a zero-to-twenty charge,” and
he does not allege or show that his counsel inaccurately represented the statutory maximum
of the offense of conviction. D. Reply (ECF No. 19) at 2.
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As explained, Martinez acknowledged in the plea agreement that he understood and agreed
that he was subject to a sentence of up to 20 years’ imprisonment on the possession count;
that the sentence imposed was solely in the court’s discretion after consideration of the
advisory sentencing guidelines; that no one could predict with certainty the outcome of the
court’s consideration of the guidelines in his case; that he would not be allowed to withdraw
his plea if his sentence was higher than he expected; that no guarantees or promises from
anyone had been made to him about what sentence the court would impose; and that the plea
agreement was a complete statement of the parties’ agreement.

Under oath at his

rearraignment, he affirmed his understanding that his counsel was expressing a professional
opinion—not a guarantee or promise—when he told Martinez what he thought the advisory
guideline range would be in his case, and that neither the court nor his attorney could
determine the advisory guideline range until after a PSR was completed. He denied that he
was pleading guilty based on any promise by anyone aside from what was set forth in the
plea documents.
Martinez quotes contemporaneous evidence in the record indicating that he would
have rejected the plea agreement and, arguably, would have insisted on proceeding to trial
had counsel advised him about the guideline imprisonment range ultimately calculated in the
PSR.4 He nonetheless fails to demonstrate that he had an objectively “reasonable chance of

4

Martinez also makes self-serving, post hoc allegations of Strickland prejudice, which,
without more, are insufficient to satisfy the second prong of Strickland. See, e.g., Lee v.
United States, 582 U.S. 357, 369 (2017); United States v. Guzman, No. 19-10783, 2021 WL
4610124, at *3 (5th Cir. Oct. 6, 2021) (per curiam).
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obtaining a more favorable result” if he had rejected the plea agreement and gone to trial.
United States v. Batamula, 823 F.3d 237, 240 (5th Cir. 2016) (en banc). Aside from
speculation, confidence, and his own general denials about his involvement in the underlying
conspiracy and the relevant conduct for which he was held accountable, Martinez provides
no facts or evidence to show a reasonable chance of a more favorable result at trial.5 Given
the record before the court, it concludes that Martinez has not satisfied his burden under
Strickland. See United States v. Lincks, 82 F.4th 325, 330-32 (5th Cir. 2023) (finding no
ineffective assistance of counsel on movant’s claim that his counsel “erroneously
underestimate[ed] his guideline range, making his guilty plea unknowing or involuntary.”).
The court therefore denies Martinez’s claim.
To the extent Martinez’s allegations can be liberally construed to raise a claim
challenging the voluntariness of his plea independent of his ineffective assistance of counsel
claim, the claim fails for the reasons explained and is therefore denied.
C
Martinez also contends that his trial counsel was ineffective during sentencing
proceedings in connection with challenging the 10 kilograms of methamphetamine attributed
to him for purposes of determining his guideline imprisonment range. He asserts that his

5

He also appears to ignore the additional 40 years of sentence exposure he would have
faced had he proceeded to trial and been convicted under the indictment, any additional drug
quantities which may have been attributed to him, coconspirators who would have been
motivated to testify against him to reduce their own sentences or potential prosecution, and
the evidence referenced by the PSR and the government at sentencing regarding his role in
criminal activity.
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counsel’s advocacy affected his “right to effectively challenge the Government’s position in
connection with the PSR by either submitting contrary evidence and/or demanding that the
Government’s position be tested through the usual means of cross-examination, etc.” D.
Mem. (ECF No. 3) at 8.
Martinez maintains that his counsel should have presented testimony and evidence
from Martinez; Edgar Martinez (“E. Martinez”) (Martinez’s son); Avila (a codefendant in
the criminal case); a DEA case agent with whom E. Martinez had spoken in 2018; and Felipe
Zamora-Guardiola (“Zamora”) (an unindicted third party).6 With the exception of himself,
Martinez provides no facts or evidence beyond speculation and conclusory assertions to
demonstrate that the others were available to testify at the sentencing hearing and would have
done so, the content of their anticipated testimony, and how the testimony would have
favored the defense.7 He therefore fails to satisfy his burden under Strickland to establish
ineffective assistance of counsel for failing to provide testimony and evidence from these
individuals.8 See Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
6

Martinez does not appear to be able to identify the alleged case agent, and refers to
him as “Mateo,” “Mata,” and “Joe Mata (or similar)” in his filings. D. Mem. (ECF No. 3)
at 11, 17; D. App. (ECF No. 20) at 4.
7
E. Martinez was a fugitive in Mexico in the underlying criminal case and/or was in
the custody of law enforcement in Mexico, and Martinez’s evidence in this habeas case
indicates that E. Martinez was not willing to turn himself in unless his conditions were met.
See D. App. (ECF No. 20) at 17. Zamora was in custody in Oklahoma on state charges
relating to the 10 kilograms of methamphetamine at issue in Martinez’s case and had not
been indicted in the federal case in this court. Avila was in custody and was one of
Martinez’s coconspirators who made statements about Martinez’s role in, and involvement
with, the 10 kilograms of methamphetamine and the underlying conspiracy.
8
Martinez provides an unauthenticated recording in Spanish purporting to be a phone
call from mid-2022 between Zamora and Martinez’s ex-wife. In the recording, Zamora
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Martinez posits that he “would have presented my own testimony (asserting that I had
only been involved with the single event and had never directed anyone to do anything)[.]”
D. App. (ECF No. 20) at 3. The record shows that, although not under oath, Martinez stated
to the court at sentencing that “yes, I made that mistake, . . . I did those things, yes, but I am
not the one who sent that guy over, and I am not the one who gave him the money either, and
I am not his boss or anybody else’s boss.” Tr. (ECF No. 227) at 16. Read in context,
Martinez is understood to be referring to the 2 kilograms of heroin as the “mistake” he made,
and to be denying the circumstances resulting in the 10 kilograms of methamphetamine for
which he was held accountable. The court accordingly heard at sentencing what Martinez
claims he would have testified to had he been called. Given this, he has not shown a
reasonable probability that the outcome of the proceedings would have been different, i.e.,
that his sentence would have been less severe, had counsel called him to testify at sentencing
and had he testified, as alleged. See Glover v. United States, 531 U.S. 198, 200 (2001)
(holding “that if an increased prison term did flow from an error [of counsel] the petitioner
has established Strickland prejudice.”). He therefore has not satisfied the second Strickland
prong and his claim fails on this basis.
allegedly states that Martinez never ordered or directed him to do anything and was not his
boss in any way, and that it was E. Martinez who ordered Zamora to pick up the 10
kilograms of methamphetamine at issue. See D. App. (ECF No. 20) at 7. Even if the
unauthenticated recording is what Martinez alleges it to be, it does not establish that Zamora
was available and would have testified at the sentencing hearing three years
earlier—particularly when he had not been charged with a federal offense in the underlying
criminal case and when E. Martinez, the alleged leader of the underlying conspiracy, may
still have been alive—or that he would have testified consistently with his alleged statements
to Martinez’s ex-wife.
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Because he has not satisfied his burden under Strickland, this claim is denied.
D
In his memorandum, Martinez also makes additional allegations complaining about
his counsel’s representation at sentencing, including that counsel: (1) did not request a
sentence below the sentencing guidelines range; (2) did not support “in any way (even
seemed to anticipate the contrary) Movant’s retention of acceptance-of-responsibility points”;
(3) failed to advise him of the purpose of his allocution; (4) advised him to pursue an appeal
and filed a notice of appeal despite the appeal waiver in the plea agreement; (5) “should have
sat down with him to sift through his ideas about the case, to analyze and address what could
be done about each in consideration of his rights . . . or why (in any given case) any of them,
once so distilled and considered in context (e.g., the Court’s power to compel testimony)
might be ‘shot down’ or otherwise deserving of abandonment”; (6) “implicitly snubbed
Movant’s claims before the Court, by ignoring them, implying that they were meritless,
suggesting that Movant had likely lost acceptance-of-responsibility points, and isolating
Movant by walling off his claims inside a rambling and translated allocution”; (7) did not
attempt to withdraw the guilty plea after the PSR was issued; (8) did not present a defense
or evidence showing that the 10 kilograms of methamphetamine attributed to Martinez “had
already been attributed to both Avila (in the instant criminal action, wherein he had been
charged with conspiracy as well as possession with intent to distribute) and [Zamora] (in
[Oklahoma] state court . . . )”; and (9) did not challenge “the fact that the Government had
not presented evidence of any nexus with ‘jointly undertaken criminal activity,’ such as when
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or by what means Movant could have instructed Avila” in connection with the 10 kilograms
of methamphetamine. D. Mem. (ECF No. 3) at 8-18 (emphasis in original).
Martinez has failed to show prejudice under the second prong of the Strickland test
as to each of these allegations. He provides no facts or evidence to show a reasonable
probability that, but for counsel’s alleged deficiencies, his sentence would have been less
severe. See, e.g., Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (holding that prejudice
under Strickland requires a “‘substantial,’ not just ‘conceivable,’ likelihood of a different
result.”) (citing Harrington v. Richter, 562 U.S. 86, 112 (2011)). To the extent he asserts
conclusory and unsubstantiated allegations of prejudice, they are insufficient to satisfy his
burden under Strickland. See, e.g., Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)
(holding that “conclusory allegations of ineffective assistance of counsel do not raise a
constitutional issue in a federal habeas proceeding.”). Because his allegations do not
demonstrate Strickland prejudice, the court need not address the performance prong, and the
claims are denied. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).
E
Martinez contends that his appellate counsel “failed to fully describe all available facts
. . . in support of the appellate claim that Movant’s plea was not [knowing, voluntary, and
intelligent], e.g., both his pro se letter and his pro se allocution.” D. Mot. (ECF No. 2) at 7.
He complains that his “[a]ppellate counsel did not make the arguments . . . that Martinez’s
plea was involuntary because of the Guidelines-range increase and associated hoodwink
discussed at sentencing[.]” D. Reply (ECF No. 19) at 10. He posits that, in addition to the
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claim actually raised on direct appeal, his appellate counsel “should have argued . . . that the
plea was infirm due to the cumulative effect of the late revelation of material information,
as laid out in the record (including the pro se renouncement).” Id.
As the court has explained, the record shows that Martinez understood his maximum
sentence exposure, the role of the advisory sentencing guidelines, and that his counsel’s
professional opinion concerning what he thought the advisory guideline range might be was
not a guarantee or promise when he pleaded guilty under the plea agreement. He therefore
fails to show that his guilty plea was unknowing and involuntary.

As for his

contemporaneous pro se correspondence, he has not shown by any facts or evidence that he
would have been permitted to withdraw his guilty plea; indeed, he expressly acknowledged
in his plea documents and at his rearraignment that he understood he would not be permitted
to withdraw his guilty plea if his sentence was higher than he expected. Nor has he shown
a reasonable chance of a more favorable outcome had he proceeded to trial.
Accordingly, because appellate counsel was not deficient for failing to raise meritless
claims on appeal and Martinez has failed to identify or show any “[s]olid, meritorious
arguments based on directly controlling precedent” that appellate counsel should have raised,
he has not satisfied his burden under the first Strickland prong. Williamson, 183 F.3d at 463;
see also Phillips, 210 F.3d at 348 (holding that attorneys do not render deficient
representation by failing to present meritless claims on appeal). Further, he has not shown
a reasonable probability that he would have prevailed on appeal but for appellate counsel’s

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failure to raise the arguments alleged, and therefore he also has not satisfied the second
Strickland prong. He is not entitled to relief on this claim, and it is denied.
V
An evidentiary hearing under § 2255 is not required when “the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). A movant “is entitled to an evidentiary hearing on his § 2255 motion only
if he presents ‘independent indicia of the likely merit of [his] allegations.’” United States v.
Reed, 719 F.3d 369, 373 (5th Cir. 2013) (citation omitted). Further, a movant cannot use “an
evidentiary hearing [as] a ‘fishing expedition’ for him to find support to validate his
allegations.” United States v. Franks, 397 Fed. App. 95, 101 (5th Cir. 2010) (per curiam)
(citing United States v. Edwards, 442 F.3d 258, 268 n.10 (5th Cir. 2006)). Martinez has
failed to present independent indicia in support of the likely merit of his claims, and the court
is left to conclude that he is seeking to use an evidentiary hearing as a fishing expedition to
validate his allegations. He has therefore failed to demonstrate that he is entitled to an
evidentiary hearing.
VI
For the reasons explained, the court denies Martinez’s motion under 28 U.S.C. § 2255
and dismisses this action with prejudice.
VII
Considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
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States District Court, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability.
The court finds that Martinez has failed to show (1) that reasonable jurists would find this
court’s “assessment of the constitutional claims debatable or wrong,” or (2) that reasonable
jurists would find “it debatable whether the petition states a valid claim of the denial of a
constitutional right” and “debatable whether [this court] was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). If Martinez files a notice of appeal, he must
pay the $605.00 appellate filing fee or submit a motion to proceed in forma pauperis.
SO ORDERED.
May 9, 2024.

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

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