JOSE HUMBERTO BARRERA 82000 079 v. UNITED STATES OF AMERICA (2026)

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Proceeding pro se, Jose Humberto Barrera filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Dkt. 1; see Dkt. 13 (response). The court held a hearing on one of the motion's claims. Minute Entry for July 9, 2026; Dkt. 21. The motion should be denied.

BACKGROUND

Barrera was charged by indictment with one count of conspiracy to possess with intent to manufacture and distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Crim. ECF Dkt. 478. He pled guilty to the charge pursuant to a non-binding plea agreement. Dkt. 21-1; Crim. ECF Dkts. 1013–17, 1055. As part of that agreement, Barrera waived the right to challenge his conviction or sentence either directly or collaterally except in two limited circumstances. Dkt. 21-1 at 5–6. The plea agreement advised Barrera that the statutory minimum and maximum sentence he faced was not less than 10 years of imprisonment and not more than life imprisonment. Id. at 2. Additionally, Barrera stipulated to several United States Sentencing Guidelines (“USSG”) factors, including: that the “amount involved during the term of the conspiracy involved at least 50 kilograms but less than 150 kilograms of a mixture or substance containing a detectable amount of cocaine”; that this amount was involved in the conspiracy after Barrera entered the conspiracy and was “part of jointly undertaken activity”; and that he was not “eligible for a minor or mitigating role” under USSG § 3B1.2. Id. at 3.

The presentence report (“PSR”) calculated the guidelines range as 188 months to 235 months of imprisonment. Crim. ECF Dkt. 1317 at 17. Barrera's trial counsel, John Stuart Gilmore, III, filed several objections to the PSR. Id. at 20-21; Crim. ECF Dkt. 1240. He also filed a sentencing memorandum, requesting a downward variance based, among other things, on Barrera's family responsibilities and the PSR's overstatement of the amount of drugs for which he was accountable and his role in the conspiracy. Crim. ECF Dkt. 1394. At the sentencing hearing on March 12, 2024, Gilmore withdrew Barrera's objections and asked the court to instead consider them as comments. Dkt. 21-3 at 4, 6–9. Both Gilmore and the government requested that Barrera be sentenced at the bottom of the guidelines range. Dkt. 21-3 at 16–18. The court sentenced Barrera to 188 months of imprisonment, which was the bottom of the guidelines range, and advised him of his appellate rights, including the 14-day window to file a notice of appeal. Id. at 22; Crim. ECF Dkt. 1424. Judgment was entered on March 13, 2024. Crim. ECF Dkt. 1424. Barrera did not appeal.

He did, however, file a § 2255 motion, asserting that his trial counsel was ineffective in failing to file an appeal and that he was fraudulently induced to enter into the plea agreement by the government's “verbal agreement” that he would receive a sentence of no more than 108 months of imprisonment and by trial counsel's promise that, based on the government's “verbal agreement,” he would not receive a prison sentence greater than 108 months. Dkt. 1. The court held an evidentiary hearing, at which Barrera was represented by court-appointed counsel, on the first of those assertions. See Minute Entry for July 9, 2026; Dkt. 21.

LAW

I. 28 U.S.C. § 2255

“Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for transgressions of constitutional rights and for that narrow compass of other injury 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 1981) (citation omitted). For that reason, a § 2255 motion is “fundamentally different from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). “Once [a] defendant's chance to appeal has been waived or exhausted,” a federal court is “entitled to presume he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982); accord United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001).

“For a collateral attack under § 2255, a distinction is drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other.” United States v. Pierce, 959 F.2d 1297, 1300–01 (5th Cir. 1992) (quotation marks omitted). The former may be challenged under § 2255; the latter may not be. United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991); see also United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) (explaining that “[a] section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result”).

More specifically, a § 2255 movant is entitled to relief only if he can establish that “(1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack.” United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted). A § 2255 motion based on “conclusory allegations unsupported by specifics” or “contentions that in the face of the record are wholly incredible” “is subject to summary dismissal.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

II. Ineffective Assistance of Counsel

To prevail on a Sixth Amendment claim of ineffective assistance of counsel, a § 2255 movant must show that (1) his attorney's actions fell below an objective standard of reasonableness and (2) the ineffective assistance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687–89 (1984); United States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994).

Under the first prong, the movant must show that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms. Strickland, 466 U.S. at 687; Seyfert, 67 F.3d at 547. Because it is easy to second-guess counsel's performance after a conviction or adverse sentence, a fair assessment of performance requires reconstructing the circumstances of counsel's conduct from his perspective at the time, rather than indulging the “distorting effects of hindsight.” Strickland, 466 U.S. at 689. As such, counsel is strongly presumed to have performed adequately and made decisions using reasonable professional judgment. Id. at 690; see also Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993) (explaining that scrutiny of counsel's performance should be highly deferential and that a court should be careful not to second-guess counsel's legitimate strategic choices). “In essence, the Sixth Amendment entitles a criminal defendant to reasonable, but not perfect, representation of counsel.” United States v. Valdez, 973 F.3d 396, 404 (5th Cir. 2020); Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. Nov. 1981) (explaining that the right to counsel does not require errorless counsel; instead, a criminal defendant is entitled to reasonably effective assistance). And it should go without saying that counsel does not render ineffective assistance by failing to make frivolous arguments. See Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002).

Under the second prong, 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.” Strickland, 466 U.S. at 694. A movant must “affirmatively prove,” not just allege, prejudice. Id. at 693. And when a movant pleads guilty, he must also show that, but for trial counsel's alleged deficient performance, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57–59 (1985).

Courts need not address both Strickland prongs if one of them is dispositive; nor must the court address the prongs in a certain sequence. Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim” on “prejudice” rather than “performance” grounds, or vice versa, then “that course should be followed.” Id.

DISCUSSION

I. Alleged Failure to File an Appeal

In Roe v. Flores-Ortega, the Supreme Court applied the Strickland test to claims “that counsel was constitutionally ineffective for failing to file a notice of appeal.” 528 U.S. 470, 477 (2000). The Court reaffirmed the well-settled rule that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Id. at 477 (citing Rodriquez v. United States, 395 U.S. 327 (1969)); see also Garza v. Idaho, 586 U.S. 232, 242 (2019) (explaining that “[w]here ․ a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant's instructions”). In such a case, “prejudice will be presumed,” United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007), and the defendant is not required to make a “further showing” on the “merits of his underlying claims,” Garza, 586 U.S. at 242 (quoting Flores-Ortega, 528 U.S. at 484).

The presumption of prejudice “applies even when the defendant has signed an appeal waiver.” Garza, 586 U.S. at 237; see also Tapp, 491 F.3d at 266. If, in that circumstance, “the [movant] is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the [movant] will be entitled to an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal that would not be precluded by the terms of his appeal waiver.” Tapp, 491 F.3d at 266. And where an offender alleges in a § 2255 motion that counsel failed to follow his instructions to file an appeal, the district court must hold an evidentiary hearing to determine whether the request was made. See, e.g., United States v. Taylor, 270 F. App'x 363, 366 (5th Cir. 2008); United States v. Alvarez, 172 F. App'x 587, 589 (5th Cir. 2006); United States v. Thomas, 216 F.3d 1080, 2000 WL 729135, at *1 (5th Cir. May 15, 2000). That is true regardless of whether counsel denies a movant's allegation that he asked counsel to pursue an appeal. See Thomas, 216 F.3d 1080, 2000 WL 729135, at *1.

Barrera claims that Gilmore, his trial counsel, failed to file a notice of appeal despite his request. Dkt. 1 at 2. Specifically, he asserts that, after sentencing, he “instructed [Gilmore] to file a notice of appeal,” but Gilmore “refused” to do so, “insist[ing] there were no grounds to appeal.” Id. Barrera alleges that he “insisted [the notice of appeal] be filed, but it was never filed.” Id.

In its response to that assertion, the government attached an affidavit signed by Gilmore that stated, in relevant part:

I represented Jose Humberto Barrera [hereinafter Barrera] from November 12, 2021, when I was retained and entered my notice of appearance as defense counsel, to March 12, 2024, when he was ultimately sentenced and the scope of my representation had terminated. This was a period of two (2) years and four (4) months.

* * *

Barrera never asked counsel to file a notice of appeal, and there were no foreseeable grounds to appeal. Barrera did not insist for a notice of appeal to be filed on his behalf. As such, no notice of appeal was filed.

Dkt. 13-1 at 1–2, 4.

In light of the factual dispute, the court concluded (and the government conceded in its response) that an evidentiary hearing was required under Tapp. Dkt. 13 at 1, 9; Dkt. 14. The court appointed attorney Keith Willeford to represent Barrera at the Tapp hearing, which it explained would “be limited to the introduction of evidence and presentation of argument concerning Barrera's claim of ineffective assistance of counsel for failing to file a notice of appeal.” Dkt. 14.

At the Tapp hearing, the court admitted three exhibits and heard testimony from two witnesses. See Dkt. 23 at 2. That evidence does not entitle Barrera to relief.

A. The Tapp hearing

Barrera, without the aid of an interpreter, testified at the Tapp hearing that he understood English but did not read or write it. Id. at 6. He confirmed that he pled guilty to count 1 of the indictment pursuant to a plea agreement providing that “the minimum range of punishment was 120 months with a maximum of life imprisonment.” Id. at 7. He also confirmed that he signed the plea agreement in Gilmore's presence at the Fannin County Jail, that the court reviewed the plea agreement with him at the change-of-plea hearing, that he received the PSR and “had some disagreements” with it, that Gilmore filed objections to the PSR, that he had discussions with Gilmore “about sentencing and [his] objections to the [PSR],” that he was “given assurances that [his] objections were going to be handled in front of the judge,” and that the objections were ultimately withdrawn. Id. at 7–9. He stated that his 188-month sentence “was greater than [he] had been told that [he] would probably receive by [Gilmore].” Id. at 9.

Barrera explained that, when he returned to the Fannin County Jail after his sentencing hearing, he tried to call Gilmore a couple of times, but there was no response. Id. at 9–10. He testified that he was then transferred to the Hopkins County Jail, and “seven or eight days” after sentencing, he had a phone conversation with Gilmore. Id. at 10–12. He stated that he knew he had only “14 days, 11 days, something like that,” to appeal. Id. at 10. He confirmed that, during their phone conversation, they had “a discussion about sentencing and [his] right to appeal.” Id. at 12. Specifically, he testified:

I asked him that -- why it went wrong. And he just told me he didn't know what went wrong. And I told him what was going to be the second plan, are we going to be able to appeal it. And his words -- words like, the way that Judge Jordan sentences you, we don't got no chances to appeal. That was his response.

Id. When asked whether he instructed Gilmore to file an appeal, Barrera responded, “Yes. Of course. Of course,” and continued,

I tell him like, you know, before -- before I got sentenced, I even asked him a couple of times that -- if something don't go the way that -- he was telling me I was going to get no more than ten years, 100-something months, that's what will happen. He said, “We'll appeal it.” So whenever we sent the response on the PSI and they didn't give us our ․ objections ․ I asked him what can happen, and he said, “We can appeal it.”

Id. Barrera confirmed that, after their conversation, neither he nor his wife “put anything in writing,” such as a letter or email to Gilmore, requesting that he appeal his sentence. Id. at 13. He also confirmed that he did not have any other conversations with Gilmore, either “in phone or in writing.” Id. At the close of direct examination, he testified that he had asked Gilmore “to file a notice of appeal in March of 2024, approximately one week after [his] sentence via telephone from the Hopkins County jail, after [he] [was] sentenced.” Id. at 13–14.

On cross-examination, Barrera admitted that he had three prior federal criminal convictions and “understand[s] how the system works.” Id. at 14–16. He testified that, before he was sentenced, Gilmore showed him the guidelines and “promised” him and his wife that he would not be sentenced to more than 108 months of imprisonment. Id. at 17. He further stated that Gilmore had told his wife that, because a different prosecutor than the one who had been handling his case was representing the government at sentencing, he was “going to get a very, very low sentence.” Id. at 18. He also stated that Gilmore “never” told him that he was “going to get 188 months”; rather, Gilmore told him that “the worst [sentence] was like maybe ten years.” Id. According to Barrera, when he was sentenced to 188 months of imprisonment, his wife was “heart broken,” but she did not send a letter or email “or something” to Gilmore “saying we want to appeal.” Id. at 19, 20. Instead, she contacted Gilmore and told him that Barrera “really needed to talk to him,” which led to Barrera's phone call with Gilmore from the Hopkins County Jail. Id. at 20–21. Barrera confirmed that this phone call was “the only thing ․ to rely on that [he] asked Mr. Gilmore to appeal.” Id. at 20. He testified that, during their conversation, Gilmore told him that there was “nothing we can do, the way ․ Judge Jordan sentenced you, there's no way we can appeal nothing.” Id. at 21. He stated that, although he was “upset,” he did “not think” that he asked his wife to send an email to Gilmore “so [he] could get it in writing saying [he] wante[ed] to appeal.” Id. at 22. He confirmed that his wife was “the person [he] told [he] wanted to appeal.” Id. at 23.

Barrera also testified that he knew about his appeal rights because Gilmore “told [him]” before he signed the plea agreement. Id. at 23–24. He confirmed that, before he entered into the plea agreement, he reviewed it with Gilmore and the court, but then he testified that he “really, really think[s] that [he] did not understand [the plea agreement] that [he signed] -- that [he] was going to give up [his] chances to appeal because [he] always thought ․ that if something don't go good in court, the only chances that -- like a person who's getting sentenced is coming back for an appeal.” Id. at 24–25. He then stated that he did not recall at the change-of-plea hearing confirming that he had a right to appeal and that he was waving that right or “signing a paper like that saying [he] was going to give up my rights to appeal.” Id. at 25–26. But he confirmed that he was told about his right to appeal and knew he had a right to appeal, stating that Gilmore “always told [him] about appealing.” Id. at 26. Barrera could not identify “any written evidence, any oral evidence, any recording, anything at all” that indicates he asked to appeal his case, explaining that there was “no way” he could record his phone conversation with Gilmore. Id. He confirmed that, at sentencing, the court told him he had a limited right to appeal and that the appeal window was 14 days. Id. at 28. He testified that he did not ask Gilmore to file an appeal immediately after the sentence was announced because he was crying and Gilmore “never got close to [him]” and “just walk[ed] away.” Id. at 28–30. He also confirmed that, on the day of sentencing, he did not ask Gilmore “anything” after his sentence was announced. Id. at 29.

On re-direct examination, Barrera confirmed that he called Gilmore from the Hopkins County Jail about one week after he was sentenced. Id. at 30–32. He testified that, when he was emotional after he was sentenced, Gilmore “did not come see [him] at all.” Id. at 32–32. He confirmed that the “next contact [he] had was about a week later from the Hopkins County [J]ail.” Id. at 33. He explained that he was “trying to reach [Gilmore] as soon as possible” because he knew he had 14 days to appeal and “didn't want the appeal to be skipped.” Id.

Gilmore took the witness stand next. He testified on direct examination that he is a board member of the Texas Criminal Defense Lawyers Association, was selected as a “rising star of that organization,” has worked at a criminal-defense law firm for almost ten years (two years as a clerk and eight years as an associate), practices criminal law nationally, and is licensed in every federal district court in Texas. Id. at 35–37. The firm's senior partner has been practicing for 55 years and is a nationally recognized criminal-defense attorney. Id. at 36. Gilmore stated that, during his representation of Barrera, he consulted with other lawyers in his firm, including the senior partner who had a couple of phone calls with Barrera. Id. at 38–39. Gilmore confirmed that he reviewed the plea agreement with Barrera, explaining that he “read that plea agreement with [Barrera] word for word where he had a copy in his hand and [Gilmore] had a copy in [his] hand.” Id. at 40. He also confirmed that he, as well as the court, explained the appeal waiver to Barrera, that he reviewed with Barrera the paragraph in the plea agreement stating that the minimum sentence is not less than 10 years of imprisonment, and that Barrera signed the plea agreement, acknowledging that he knew the minimum sentence was 10 years and the appellate rights he was waving. Id. at 41–43. Gilmore testified that he never told Barrera that he was going to be sentenced to 108 months of imprisonment. Id. at 42. He also confirmed that, at sentencing, the court told Barrera that he had a right to appeal in limited circumstances and had 14 days to file an appeal. Id. at 43–44. Gilmore further testified that, on the day of sentencing, he was present when Barrera received his sentence and that Barrera never told him that he wanted to appeal. Id. at 44. He confirmed that Barrera never asked him to appeal his sentence at “any time after the sentencing.” Id. at 44–45. He testified that, had Barrera asked him to appeal, he “would have filed a notice of appeal immediately,” explaining that “[i]t's a one-page document” that “takes five minutes to do, and [he] would have done it.” Id. at 45.

Gilmore stated that, after he learned of Barrera's allegation, he reviewed Barrera's extensive file, “looking through every single page in that box and a half to see if there was anything regarding a request to appeal this, to file the notice of appeal.” Id. He explained:

I took copious notes at every communication I had with him and not one of them references that. I also had my paralegal who has been with me for about five years who I trust and -- looked through the entire file as well independent from myself. And he could not find anything. He also could not find anything in his e-mail. I have looked through my e-mails from Veronica where she would communicate with me often, his common law wife, and there was nothing regarding a request, a suggestion to appeal his sentence.

Id. at 45–46. He confirmed that both he and his paralegal searched the file and found “no document and nothing electronic.” Id. at 46. As to the one phone conversation he had with Barrera after sentencing, Gilmore stated:

There was a conversation after he got sentenced because I felt it was appropriate to talk with him, which I also did with him in court where he is sitting right now after the sentence was pronounced. During that conversation, not one time did he ever mention a request to appeal his sentence.

Id.

On cross-examination, Gilmore testified that Barrera's wife called his office regularly and that she reached out to him about a week after Berrera's sentencing because she had heard Barrera had been transferred to a different facility. Id. at 48. He stated that he then asked his paralegal to set up a privileged phone call “to continue the conversation” that he had with Barrera in the courtroom after sentencing “when he was clearly distraught, crying, and upset.” Id. Gilmore disagreed with Barrera's testimony that he did not talk to him at the courthouse after the sentence was pronounced. Id. at 49. According to Gilmore, on the day of sentencing, “[a]fter the judge sentenced him and imposed the sentence and before the marshals took him back in that room, [he] talked with him,” and although he did not remember if he said, “Jose, I'm sorry” or “what [he] said,” he stated that he “absolutely consoled him” and “talked with him.” Id. As to the one phone conversation he had with Barrera after sentencing, Gilmore testified that he did not recall Berrera asking him why he “g[o]t 188 months and not something lower” but did recall “him being upset about the fact that he got 188 months,” although he did not recall what he had said. Id. at 50. He also testified that, during that phone conversation, Barrera “did not bring” up the issue of his right to appeal “at all,” stating that “[t]he word ‘appeal’ did not come up in that conversation at all.” Id.

On re-direct examination, Gilmore confirmed that Barrera waited 11 months after sentencing before he filed his § 2255 motion claiming that he asked Gilmore to file an appeal. Id. at 52–53.

B. The failure of Barrera's argument

Barrera does not argue in his § 2255 motion that Gilmore failed to consult with him about an appeal. The only question is whether Gilmore failed “to follow [Barrera]'s express instructions with respect to an appeal.” Flores-Ortega, 528 U.S. at 478; United States v. Cong Van Pham, 722 F.3d 320, 324 (5th Cir. 2013).

Barrera has not made that showing by a preponderance of the evidence. See Tapp, 491 F.3d at 266. Gilmore credibly testified that Barrera did not at any point instruct or direct him to file an appeal—and that, had Barrera requested that an appeal be filed, he would have filed one. Barrera's testimony that he asked Gilmore to file a notice of appeal is not credible. Other than his testimony at the Tapp hearing, there is no evidence that Barrera asked Gilmore to appeal. It is undisputed that Barrera's alleged request was never put in writing. There is also no evidence that Barrera or his wife followed-up with Gilmore after the Hopkins County Jail phone conversation, let alone expressly instructed him to file a notice of appeal. Thus, even if Barrera had told his wife he wanted to appeal, there is no evidence that she ever communicated that to Gilmore. A client must timely and clearly communicate his desire to appeal to his attorney. Lane v. United States, No. 113CR0084CBL03, 2018 WL 8758036, at *5 (N.D. Tex. Sept. 12, 2018) (citing Childs v. Collins, 995 F.2d 67, 69 (5th Cir. 1993)), report and recommendation adopted, No. 1:13-CR-084-C, 2018 WL 8758037 (N.D. Tex. Sept. 28, 2018), aff'd, 834 F. App'x 931 (5th Cir. 2021). Barrera has not carried his burden to show that he did so.

By contrast, Gilmore's testimony leaves the court with no doubt that he understood his obligation to proceed with an appeal, had Barrera requested one. See Morales-Alcaraz v. United States, No. 4:14-CR-147(4), 2020 WL 5797710, at *7 (E.D. Tex. Aug. 13, 2020), report and recommendation adopted, No. 4:14CR147(4), 2020 WL 5766739 (E.D. Tex. Sept. 28, 2020). Furthermore, Gilmore credibly testified that he understood his obligation to proceed with an appeal, had Barrera requested one or had it been warranted. See id. Under the standards articulated in Flores-Ortega and Tapp, counsel's representation did not fall below an objective standard of reasonableness, and Barrera has therefore failed to satisfy the first prong of the Strickland standard.

II. Alleged Fraudulent Inducement to Enter into Plea Agreement

Barrera also asserts that he was fraudulently induced to enter into the plea agreement by the government's “verbal agreement” that he would receive a sentence of no more than 108 months of imprisonment and by trial counsel's promise that, based on the government's “verbal agreement,” he would not receive a prison sentence greater than 108 months.

Those assertions implicate the validity of Barrera's guilty plea. A valid guilty plea waives all non-jurisdictional defects, including claims of ineffectiveness of counsel, except as it relates to the voluntariness of the plea. United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). For a plea to be knowing and voluntary, “[t]he defendant must have a full understanding of what the plea connotes and of its consequence.” United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (quotation marks omitted). If the record establishes that the defendant understood the nature of the charges against him and the consequences of his plea, yet voluntarily chose to plead guilty, the rudimentary demands of a fair proceeding and a knowing, voluntary plea were satisfied. Wright v. United States, 624 F.2d 557, 561 (5th Cir. 1980).

“The consequences of a guilty plea, with respect to sentencing, mean only that the defendant must know the maximum prison term and fine for the offense charged. As long as [the defendant] understood the length of time he might possibly receive, he was fully aware of his plea's consequences.” Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir. 1982) (quotation marks omitted).

The defendant's representations, along with those of his lawyer and the prosecutor, and any findings by the judge in accepting the plea “constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge, 431 U.S. at 73–74. Solemn declarations in open court carry a strong presumption of truthfulness, and a defendant bears a heavy burden to show that his plea was involuntary after testifying to its voluntariness in open court. Id. at 74; Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Similarly, official documents, such as written plea documents, are “entitled to a presumption of regularity and are accorded great evidentiary weight.” United States v. McDaniels, 907 F.3d 366, 371 (5th Cir. 2018) (quoting Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985)). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden on him. United States v. Diaz, 733 F.2d 371, 373–74 (5th Cir. 1984).

The record demonstrates that Barrera's guilty plea was knowing and voluntary. At the change-of-plea hearing (Government Exhibit 2), Barrera admitted that he understood the charge, including the “essential elements” as set forth by the government, and that he committed each of the elements. Dkt. 21-2 at 7–9. He confirmed that he signed the plea agreement, the addendum to that agreement, and the factual basis. Id. at 9–10. He also confirmed that he reviewed each of those documents with Gilmore before signing them. Id. at 10. He admitted that he understood that he would waive certain constitutional rights by pleading guilty. Id. at 10–11. He also stated that he understood the penalties he faced—specifically, not less than 10 years of imprisonment nor more than life imprisonment. Id. at 11. He further admitted that he had an opportunity to review the sentencing guidelines with counsel and understood that they were not binding on the court; that the guideline stipulations in the plea agreement were likewise not binding on the court and that, if the court applied a different guidelines provision, he would still be bound by the plea agreement; that no one had forced or threatened him to plead guilty; that, other than the written plea agreement, no promises or assurances had been made to him in an effort to get him to plead guilty; that he agreed to give up his appellate rights with the exception of two limited circumstances; that he had previously been convicted of a felony; that he had sufficient time to review and discuss his case with counsel; that he was satisfied with counsel's representation and advice; and that everything contained in the factual basis was true and correct and that he had no changes to it. Id. at 7, 11–15, 19. Barrera summarized that he was pleading guilty to “conspir[ing] with other people to distribute drugs, cocaine,” and admitted that the drug quantity involved was at least 50 kilograms but less than 150 kilograms of a mixture containing cocaine. Id. at 21. Gilmore and the government confirmed that they were satisfied that there was a factual basis to support the plea, and Gilmore confirmed that he had sufficient time to review and discuss the case with Barrera. Id. at 21.

Additionally, the plea agreement (Government Exhibit 1) itself states that Barrera

thoroughly reviewed all legal and factual aspects of this case with defense counsel and is fully satisfied with defense counsel's legal representation. The defendant has received satisfactory explanations from defense counsel concerning each paragraph of this plea agreement, each of the defendant's rights affected thereby, and the alternatives to entering a guilty plea. After conferring with counsel, the defendant concedes guilt and has concluded that it is in the defendant's best interest to enter this agreement rather than proceeding to trial.

Dkt. 21-1 at 6. The plea agreement also states that Barrera “understands the nature and elements of the crime to which guilt is admitted and agrees that the Factual Basis [he] has signed is true.” Id. at 1–2. The plea agreement provides that Barrera's guilty plea was “freely and voluntarily made and [was] not the result of force, threats, or promises other than those set forth in th[e] agreement.” Id. at 5. Finally, by signing the plea agreement, Barrera affirmed that he had “read or had read to [him] th[e] plea agreement,” had “carefully reviewed every part of it with [his] attorney,” and “fully under[stood] it and voluntarily agree[d] to it.” Id. at 7.

In the factual basis (Government Exhibit 1), Barrera stipulated that he “and one or more persons in some way or manner made an agreement to commit the crime charged in the Second Superseding Indictment, to possess with the intent to manufacture and distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine.” Id. at 10. He also stipulated that he knew “the unlawful purpose of the agreement and joined in it with the intent to further it.” Id. Furthermore, he stipulated that he “knew that the amount involved during the term of the conspiracy involved at least 50 kilograms but less than 150 kilograms of a mixture or substance containing a detectable amount of cocaine” and that “[t]his amount was involved in the conspiracy after [he] entered the conspiracy and was part of jointly undertaken activity.” Id. at 10–11. By signing the factual basis, Barrera acknowledged that he read the factual basis and Second Superseding Indictment, that he discussed those documents with Gilmore, that he fully understood the contents of the factual basis, and that he “agree[d] without reservation that it accurately describe[d] the events and [his] acts.” Id. at 11. Gilmore also signed the factual basis, acknowledging that he had read and reviewed the factual basis and Second Superseding Indictment with Barrera and that, based on his discussions with Barrera, he was satisfied that Barrera understood the factual basis and Second Superseding Indictment. Id.

The court found that Barrera was fully competent and capable of entering an informed plea and was aware of the nature of the charge, the maximum penalties, and the consequences of his guilty plea; that his guilty plea was “a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense”; and that he understood the constitutional and statutory rights enumerated in Rule 11(b) and wished to waive those rights, including the right to a trial by jury. Crim. ECF Dkt. 1017 at 1–2; Crim. ECF Dkt. 1055.

Barrera has provided no independent evidence sufficient to overcome his sworn testimony in open court, the plea documents, the representations of Gilmore and the government, and the findings of the court in accepting his plea. See Blackledge, 431 U.S. at 73–74; Deville, 21 F.3d at 659. He never attempted to withdraw his guilty plea. And he did not complain at sentencing that his guilty plea was unknowing or involuntary. In short, the record reflects that Barrera's guilty plea was knowing and voluntary.

Barrera's claim that his plea was induced by the promise of a 108-month sentence is likewise unavailing. He did not present any independent indicia of the likely merit of his allegations because he did not present affidavits from reliable third parties establishing the terms of the alleged promise, the time and place of the promise, or the identity of any eyewitnesses to the promise. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). His own self-serving, conclusory allegations are insufficient. See United States v. Demik, 489 F.3d 644, 646–47 (5th Cir. 2007).

Conversely, the government presented Gilmore's affidavit, which confirms that Barrera's guilty plea was knowing and voluntary and refutes Barrera's assertions that the government verbally agreed to a sentence of no more than 108 months of imprisonment and that Gilmore promised Barrera he would receive the agreed-upon sentence. Dkt. 13-1. Gilmore states:

During the 2 years and 4 months that I represented Barrera, I was able to discuss the entirety of the allegations against Barrera in the alleged conspiracy. We reviewed the discovery (evidence against him), discussed his defenses, if any, and discussed the possibility of him going to trial on multiple occasions. Barrera recognized most of his co-defendants had entered plea agreements as well. On those occasions in which it was discussed how to proceed with his case, Barrea indicated that he did not want to proceed to trial and instead wanted to enter a plea with the Government.

Barrera had one of the above-mentioned discussions with me and Gerald H. Goldstein1, the Senior Partner at Goldstein & Orr, present and leading the conversation.

[FN1] Gerald “Gerry” Goldstein [Texas Bar No. 08101000] is the past president of the National Association of Criminal Defense Lawyers and the Texas Criminal Defense Lawyers Association. He has been in practice for over 50 years exclusively defending individuals accused of crimes in State and Federal Courts across the United States.

Barrera was advised of the terms of the written plea offer from the Government. I read the contents of the plea agreement out loud to Barrera as he read along with his physical copy. He also asked questions about what particular legal terms meant. I answered those questions and he verbally indicated that he understood. At no time did Barrera indicate he did not understand the terms of the written plea agreement. At no time did Barrera indicate that he did not understand the English language or my communications with him. In fact, as an English-only speaker, at no time did I ever have any barriers to communication with Barrera.

Ultimately, Barrera signed the plea agreement on July 17, 2023, indicating that he “read or had read” the plea agreement, had “carefully reviewed every part of it with my attorney,” and that he “fully understand[s] it and voluntarily agree[s] to it.” * * *

[Excerpt from plea agreement omitted]

I also signed the Plea Agreement, attesting to the fact that I had carefully reviewed every part of the plea agreement with Barera. It is my belief that Barrera knowingly, voluntarily, and intelligently signed the plea agreements.

Within that plea agreement, on page 4, paragraph 8, contained the Government's Agreement. At no point in the written agreement did the Government agree to a particular set of months for punishment.

There was no insistence that Barrera would only be held responsible for marijuana, and not cocaine. Instead, it was explicitly explained to Barrera on numerous occasions that the cocaine is what he, in fact, moved, and that he was to be held liable for it pursuant to the plea agreement and the factual stipulation.

Barrera also signed a 2-page factual basis. Within that factual basis, which Barrera signed, contained information about him agreeing to the allegation of his possessing with the intent to manufacture and distribute 5 kilograms or more of a mixture or substance containing a detectible amount of cocaine. At no point in this factual basis did it mention that Barrera possessed marijuana.

Additionally, at no time was there ever a “verbal agreement” with the Government. There was never any “verbal agreement” regarding a particular sentence for Barrea. Instead, it was explained to Barrera that the guidelines advised the Court as to what an appropriate sentence should be. It was explained to Barrera, and he indicated that he understood, that the guidelines are not binding on the Court. Barrera understood that there would be a full range of punishment that he would be subject to – including a mandatory minimum sentence. It was also explained that the Court would be the sole entity deciding Barrera's ultimate punishment. All of this information was also within the written plea agreement. Same was repeated, and acknowledged by Barrera, in open court at both entry of the plea and at his sentencing.

Ultimately, Barrera freely, knowingly, and voluntarily signed his plea agreement, knowing the full consequences of same, as well as the full range of punishment. Again, there was never an agreement with the Government regarding a particular sentence. With that in mind, it was also never conveyed to Barrera that there was a particular sentence with a particular set of months agreed to by him and the Government.

Barrera was explained the full range of punishment under 21 U.S.C. § 846 (Conspiracy to Possess with the Intent to Distribute and Distribution of Methamphetamine, Cocaine, Heroin, and Marijuana) and there was never a discussion of signing a plea agreement contemplating a “definite and specific term of incarceration.” In fact, the terms of the plea agreement indicated that Barrera was to face a mandatory minimum of 10 years in custody – 10 years is 120 months. This purported 108 month “verbal agreement” is less than the mandatory minimum and would be an improbable sentence.

The Court ultimately imposed a sentence of 188 months. Pursuant to a total offense level of 33, and a criminal history category IV, Barrera faced a guideline range of 188 months to 235 months. Barrera received the minimum sentence pursuant to the guideline range. Barrera is well-aware of how sentencing in federal court operates, as he had a prior federal case out of the Southern District of Texas, Laredo Division, where he was sentenced in April of 1999.

Id. at 1–4. Barrera's self-serving allegations that the government agreed to a particular sentence—let alone one below the statutory minimum—and that Gilmore promised him that, based on the government's “verbal agreement,” he would not receive a prison sentence greater than 108 months, are not credible and contradict his sworn testimony in open court, the plea documents, and the representations of Gilmore and the government.

Furthermore, Barrera has not shown that there is a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). His word alone is insufficient to meet that burden; “[c]ourts 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). That evidence confirms that Barrera is not entitled to relief.

CERTIFICATE OF APPEALABILITY

An appeal may not be taken to the court of appeals from a final order in a proceeding under § 2255 “[u]nless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(B). Although Barrera has not yet filed a notice of appeal, the court will address whether he 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 rule on a certificate of appealability sua sponte 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 explained the requirements associated with that showing in Slack v. McDaniel, 529 U.S. 473 (2000), and Miller-El v. Cockrell, 537 U.S. 322 (2003). In a case in which “a district court has rejected the 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,” Slack, 529 U.S. at 484, or that “the issues presented are adequate to deserve encouragement to proceed further,” Miller-El, 537 U.S. at 327. And “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition 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.” Slack, 529 U.S. at 484; see 28 U.S.C. § 2253(c)(1) (reflecting that the certificate-of-appealability requirement applies equally in the habeas and § 2255 contexts).

In this case, it is respectfully recommended that reasonable jurists would neither debate the denial of Barrera's constitutional claims nor find that the issues presented are adequate to deserve encouragement to proceed.

RECOMMENDATION

It is RECOMMENDED that Barrera's § 2255 motion, Dkt. 1, be DENIED and that the case be dismissed with prejudice. It is also RECOMMENDED that a certificate of appealability be DENIED.

* * *

Within 14 days after service of the magistrate judge's report, any party may serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).

To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 10 to 14 days).

So ORDERED and SIGNED this 31st day of August, 2026.

Bill Davis United States Magistrate Judge