     Case: 11-11059       Document: 00512220015         Page: 1     Date Filed: 04/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 24, 2013

                                       No. 11-11059                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MICHAEL LEE SAMANIEGO,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:09-CV-101


Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant Michael Lee Samaniego appeals the district court’s denial of his
motion to vacate his sentence under 28 U.S.C. § 2255. Because we cannot
conclusively determine that Samaniego is not entitled to relief based on the
existing record, we vacate the district court’s judgment denying Samaniego’s
§ 2255 motion and remand for an evidentiary hearing.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                         I.
      In 2007, Samaniego pleaded guilty to a two-count superseding information
pursuant to a written plea agreement. The first count charged Samaniego with
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C) (“Count one”), and the second count charged him with
possession with intent to distribute less than 50 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) (“Count two”). These charges were
based on incidents that occurred on January 25, 2007 and March 3, 2007 in San
Angelo, Texas.
      On January 25, 2007, San Angelo police officers stopped Samaniego while
he was driving and arrested him for outstanding warrants and driving without
a valid license. While searching his vehicle, officers discovered a backpack
containing plastic bags, digital scales, a police scanner, and 4.5 ounces of
marijuana. This incident was the basis for Count two of the superseding
information.
      On March 3, 2007, San Angelo police officers conducted a traffic stop on
a vehicle in which Samaniego was a passenger. One of the officers noticed a
plastic bag containing a crystalline substance on the floorboard of the backseat,
which was directly in front of where Samaniego was sitting. A search of the
vehicle   revealed   digital   scales,   plastic   bags,     and   202   grams     of
methamphetamine. Samaniego was arrested and taken to the San Angelo police
station. Samaniego’s factual resume states that once there, San Angelo police
officers “informed Samaniego of his constitutional rights and he agreed to waive
those rights and speak with the officers.” Samaniego admitted that the
methamphetamine in the vehicle was his. According to Samaniego’s presentence
investigation report (“PSR”), Samaniego went on to provide the officers with a
detailed confession of his drug distribution activities since 2005. The March 3,
2007 incident served as the basis for Count one of the superseding information.

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      Samaniego’s sentencing hearing was held on March 21, 2008. Relying on
his March 3, 2007 confession, the PSR held Samaniego accountable for 166.47
kilograms of methamphetamine and 1.11 kilograms of marijuana, which gave
him a base offense level of 38. The PSR added two levels because Samaniego
imported drugs from Mexico and four additional levels because he was a leader
or organizer in a criminal activity involving five or more participants. After
subtracting three levels for acceptance of responsibility, Samaniego’s total
offense level was 41. That offense level combined with a criminal history
category of I produced a guidelines range of 324 to 405 months. However, the
statutory maximum sentence for Count 1 was 240 months and for Count 2 was
60 months, for a maximum possible sentence of 300 months. Therefore, the PSR
adopted 300 months as Samaniego’s guidelines range. On March 21, 2008, the
district court sentenced Samaniego to the statutory maximum 300 months of
imprisonment. Samaniego appealed to this court and his conviction was
affirmed. See United States v. Samaniego, 303 F. App’x 178 (5th Cir. 2008).
      On December 10, 2009 Samaniego, proceeding pro se, filed a sworn § 2255
motion in the district court arguing, among other things, that his lawyer was
constitutionally ineffective because he failed to file a motion to suppress his
March 3, 2007 confession. He alleged that before he pleaded guilty he told his
lawyer that when he was arrested on March 3, 2007 he “invoked his right to
counsel and was denied.” He also alleged that he informed the police officers who
interviewed him that he was “High as a kite” and that “he had been up for two
weeks without sleep and therefore did not understand the nature of the
Statement [the] Police Officers coerced him to sign.” He asserted that the police
officers “induced [him] to sign the Statement by falsely promising . . . he would
receive leniency” and that the officers further coerced him by threatening to have
his “two young children placed into State Custody.” Samaniego further alleged
that the officers “threatened and coerced [him] into signing the Statement by

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telling [him] that Officers would make a record of [his] refusal to sign and that
this might result in [him] receiving harsher punishment and treatment.”
       The Government filed a response and Samaniego filed a reply. On
September 27, 2011 the district court entered an opinion denying Samaniego’s
§ 2255 motion. With respect to Samaniego’s claim that his counsel was
ineffective for failing to file a motion to suppress, the district court stated only
that “failing to file a frivolous motion or make a frivolous objection ‘does not
cause counsel’s performance to fall below an objective level of reasonableness.’”
Samaniego’s former trial counsel did not file a response to the § 2255 motion and
the court did not hold an evidentiary hearing.
       Samaniego appealed pro se and moved for a certificate of appealability
(“COA”). This court granted a COA “on the question whether the district court
erred in determining that Samaniego was not denied effective assistance by
counsel’s failure to file a motion to suppress where the district court did not
explicitly address Samaniego’s sworn assertions in his § 2255 motion that his
statement was uncounseled and coerced and where the record gives no indication
of counsel’s reasons for not filing such a motion.”
                                            II.
       On appeal, Samaniego argues that the district court erred by failing to
hold an evidentiary hearing and by denying his ineffective assistance of counsel
claim based on his lawyer’s failure to file a motion to suppress.1 In an appeal
from the denial of a § 2255 motion, “this court reviews a district court’s factual
findings for clear error and its legal conclusions de novo.” United States v. Cavitt,
550 F.3d 430, 435 (5th Cir. 2008). We review the district court’s decision not to


       1
         Samaniego also moves this court “to expand the COA already issued in this cause, to
include all of the ineffective assistance of counsel claims presented in the Motion for
Certificate of Appealability.” However, Samaniego provides no explanation as to why the COA
issued by the court should be expanded. That argument is therefore waived. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).

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grant an evidentiary hearing for abuse of discretion. Id.; see also United States
v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).
      When a defendant enters a voluntary guilty plea, all nonjurisdictional
defects in the proceedings are waived, including ineffective assistance of counsel,
“except insofar as the ineffectiveness is alleged to have rendered the guilty plea
involuntary.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000). To
establish that his counsel was constitutionally ineffective, Samaniego must show
that: (1) his counsel’s performance was deficient to the extent that it fell below
an objective standard of reasonableness, and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
To establish that his counsel’s performance was deficient, Samaniego must show
that his counsel made errors so serious that he “was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. “In order ‘[t]o prove
prejudice for an ineffective assistance of counsel claim in the context of a guilty
plea, the habeas petitioner 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.’” Cavitt, 550 F.3d at 441 (quoting Bond v. Dretke, 384
F.3d 166, 167–68 (5th Cir. 2004)). Courts “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689 (internal quotation marks omitted).
      As noted above, Samaniego’s sworn § 2255 motion alleges that his March
3, 2007 confession was coerced and that before pleading guilty he told his lawyer
that the interviewing officers denied his request to speak to an attorney in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). Samaniego argues that
there was no legitimate strategic reason for failing to file a motion to suppress
and that by not doing so, his counsel’s performance was objectively

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unreasonable. Samaniego contends that the March 3, 2007 statements to police
were critical to the Government’s case against him and that had a motion to
suppress been filed, there is a reasonable probability that he would have
proceeded to trial instead of pleading guilty. Samaniego further argues that,
given the lack of any response to his § 2255 motion from his trial counsel, his
sworn allegations are unrefuted and the district court erred by not granting an
evidentiary hearing because the record does not conclusively show that he is not
entitled to relief.
      The Government argues that Samaniego’s “unsupported, self-serving, and
after-the-fact claims” of a coerced confession are insufficient to overcome the
presumption that his counsel performed reasonably. It notes that before his
attorney negotiated a plea agreement, Samaniego was facing the possibility of
life imprisonment. With the plea agreement negotiated by counsel, however,
Samaniego’s punishment exposure was reduced to 300 months. The Government
contends that Samaniego’s counsel “acted reasonably and with sound
professional judgment in negotiating a very favorable plea agreement instead of
filing a meritless motion to suppress.” The Government also notes that the
factual resume accompanying Samaniego’s guilty plea states that when he was
arrested on March 3, 2007, San Angelo police officers “informed Samaniego of
his constitutional rights and he agreed to waive those rights and speak with the
officers.” It argues that statements made in plea documents carry a strong
presumption of veracity and that the statement in Samaniego’s factual resume
belies the claims in his § 2255 motion that his confession was coerced.
      When a prisoner files a § 2255 motion, the district court must grant an
evidentiary hearing “[u]nless 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);
see also United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (“A motion
brought under 28 U.S.C. § 2255 can be denied without a hearing only if the

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                                       No. 11-11059

motion, files, and records of the case conclusively show that the prisoner is
entitled to no relief.”). In denying Samaniego’s § 2255 ineffective assistance
claim, the district court found that filing a motion to suppress would have been
frivolous and that counsel’s performance was therefore not deficient. The court’s
determination, however, was not adequately supported by the record. Given the
lack of any factual findings at an evidentiary hearing, or a response from
Samaniego’s trial attorney, there is nothing in the record showing counsel’s
reasons for not filing a motion to suppress or whether his performance was
constitutionally deficient for failing to do so. Cf. United States v. Maria-
Martinez, 143 F.3d 914, 916 (5th Cir. 1998) (“We have held that a claim of
ineffective assistance based on a failure to file a motion to suppress cannot be
reviewed without testimony as to the reasons behind failing to file the motion.”).
As such, the record simply was not sufficiently developed for the district court
to evaluate Samaniego’s claim, and this court is similarly unable to evaluate
Samaniego’s claim. Indeed, with the current record, this court is essentially in
the same position it would have been in had Samaniego raised this claim on
direct appeal. See id. (“We do not typically review claims of ineffective assistance
on direct appeal, because the record is rarely sufficiently developed on the issue
of counsel’s competence.”).
       While there is obvious tension between Samaniego’s factual resume and
the allegations in his § 2255 motion, the statements are not inherently
inconsistent from a factual perspective.2 And given the lack of an evidentiary
hearing or any response from Samaniego’s counsel, that tension alone is not
sufficient for us to “conclusively” determine that Samaniego is not entitled to


       2
         For example, Samaniego’s factual resume states that the “officers informed [him] of
his constitutional rights and he agreed to waive those rights and speak with the officers.” In
his sworn § 2255 motion, Samaniego alleges that he requested an attorney and his request was
denied. It is at least possible that Samaniego was informed of his rights, requested a lawyer
and was denied, and then agreed to waive his rights and speak with the officers.

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relief. See 28 U.S.C. § 2255(b). Because the record was not sufficiently developed
for the district court to conclusively determine that Samaniego is not entitled to
relief, the district court abused its discretion by failing to grant an evidentiary
hearing. See Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979)
(explaining that § 2255 “commands the District Courts to grant a prompt
hearing on all motions brought pursuant to it [u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no
relief.” (internal quotation marks omitted)).
                                       III.
      For the foregoing reasons, we VACATE the district court’s judgment
denying Samaniego’s § 2255 motion and REMAND for an evidentiary hearing.
Samaniego’s motion to expand the COA is DENIED.




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