     Case: 15-41205       Document: 00514288661         Page: 1     Date Filed: 12/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                     No. 15-41205
                                                                                     Fifth Circuit

                                                                                   FILED
                                   Summary Calendar                        December 29, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                  Plaintiff - Appellee

v.

ROCKY LEE MARQUEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 5:15-CV-1
                            USDC No. 5:10-CR-2506-2


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Pursuant to a 12 October 2016 certificate of appealability (COA), Rocky
Lee Marquez, federal prisoner # 79765-279, contests the dismissal of his pro
se, 28 U.S.C. § 2255 motion, which challenges his conviction for conspiring to
possess, with intent to distribute, more than 50 grams of methamphetamine,
in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). United States v.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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Marquez, 547 F. App’x 517, 518–20 (5th Cir. 2013) (denial of motion to set aside
guilty plea and conviction affirmed on direct appeal).
      In moving under 28 U.S.C. § 2255 to set aside his sentence, Marquez
asserted he received ineffective assistance of counsel (IAC) because his counsel,
inter alia: (1) failed to object to the magistrate judge’s taking his guilty plea,
and (2) failed to advise Marquez and provide him “with discovery so that he
could make a fully informed decision as to what plea should be entered”. The
court summarily denied and dismissed his motion with prejudice, pursuant to
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts (Section 2255 Rules), ruling Marquez consented to the
magistrate judge’s taking his plea and his “second group of claims [regarding
being informed as to his guilty plea were] conclusory”. The court stated it could
not “even begin to conduct a Strickland analysis because [Marquez] neglect[ed]
to reference any erroneous advice or any specific evidence withheld”.          As
permitted by his COA, Marquez contends the court erred by failing to give him
an opportunity to amend his facially-insufficient IAC claims before it denied
and dismissed his 28 U.S.C. § 2255 motion with prejudice. We agree in part.
      Rule 4(b) of the Section 2255 Rules governs the initial consideration of a
28 U.S.C. § 2255 motion. The Rule directs the court to consider “[t]he motion,
any attached exhibits, and the record of prior proceedings” relating to the
judgment under attack, and authorizes summary dismissal if it “plainly
appears” from those materials “that the moving party is not entitled to relief”.
Rule 4(b), Section 2255 Rules. Otherwise, it directs the court to require the
Government’s filing an answer. Id. If an answer is required, the movant will
have an opportunity to submit a reply. Rule 5(d), Section 2255 Rules.
      Factual findings in a denial of a 28 U.S.C. § 2255 motion are reviewed
for clear error; issues of law, de novo. United States v. Olvera, 775 F.3d 726,



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728–29 (5th Cir. 2015). Moreover, the district court’s implicit denial of leave
to amend such a motion is reviewed for abuse of discretion. United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (“To penalize [a pro se litigant] for less-
than-perfect pleading is a clear violation of the rule that courts must liberally
construe pro se pleadings.”).
      Because such dismissals are disfavored, a court generally errs in
dismissing or denying a pro se party’s pleadings without providing an
opportunity to amend. Peña v. United States, 157 F.3d 984, 987 & n.3 (5th Cir.
1998). In United States v. Martinez, 181 F.3d 627, 628–29 (5th Cir. 1999), our
court vacated and remanded the denial of a 28 U.S.C. § 2255 motion in order
to provide the movant an opportunity to state his IAC claims with greater
specificity. See also United States v. Whitehead, 393 F. App’x 226, 228 (5th Cir.
2010) (applying Martinez); United States v. Tarver, 2000 WL 554024 at *1 (5th
Cir. Apr. 10, 2000) (answer from Government was required where motion and
record did not establish whether movant was entitled to relief); United States
v. Rice, 1999 WL 1338407 at *1 (5th Cir. Dec. 27, 1999) (noting litigant has
right to amend prior to filing of responsive pleading under Fed. R. Civ. P.
15(a)).
      Marquez’s claims regarding the magistrate judge’s role in taking his
guilty plea are belied by the record, which shows he consented to the
magistrate judge’s taking his guilty plea, subject to the approval of the district
court. United States v. Dees, 125 F.3d 261, 266–68 (5th Cir. 1997). Therefore,
it “plainly appears” from the record that Marquez is not entitled to relief on
that issue. Rule 4(b), Section 2255 Rules; United States v. Wilkes, 20 F.3d 651,
653 (5th Cir. 1994).
      Marquez’s remaining IAC claims are that counsel did not properly advise
him regarding his guilty plea or provide him with discovery so that he could



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make an informed decision. Needless to say, the Sixth-Amendment right to
effective assistance of counsel “extends to the plea-bargaining process”. Lafler
v. Cooper, 566 U.S. 156, 162 (2012).
      The Government asserts the court properly considered this court’s ruling
there was close assistance of counsel when Marquez pleaded guilty. Marquez,
547 F. App’x at 520 (ruling Marquez’s close-assistance-of-counsel “contentions
find no support in the record”). Although our court previously ruled his close-
assistance-of-counsel contentions lacked record support, whether Marquez
received effective assistance of counsel is “distinct” from whether he received
close assistance of counsel under United States v. Carr, 740 F.2d 339 (5th Cir.
1984). United States v. Urias-Marrufo, 744 F.3d 361, 365 (5th Cir. 2014); see
also United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009). Accordingly,
it does not plainly appear Marquez is not entitled to relief with respect to his
remaining IAC claims. Rule 4(b), Section 2255 Rules. Therefore, Marquez, a
pro se litigant, should have been granted the opportunity to state his IAC
claims with greater specificity. Martinez, 181 F.3d at 628–29.
      AFFIRMED IN PART and VACATED AND REMANDED IN PART.




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