IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50954
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DE LA GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-95-CV-0804
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September 2, 1998
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Robert De La Garza, federal inmate # 59844-080, appeals the
district court’s dismissal of his 28 U.S.C. § 2255 motion. De La
Garza’s motion for leave to file a reply brief out-of-time is
GRANTED.
De La Garza challenges the validity of his guilty plea,
which included a waiver of the right to appeal and of the right
to challenge his sentence in a postconviction proceeding. De La
Garza contends that counsel’s ineffective assistance caused him
to enter an invalid plea. He also contends that he did not
*
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that this opinion should not be published and is not precedent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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understand that he was waiving the right to appeal his sentence
and the right to challenge the sentence in a 28 U.S.C. § 2255
motion.
Generally, the validity of a guilty plea cannot be attacked
on collateral review unless the issue is first raised on direct
review. See Bousley v. United States, 118 S. Ct. 1604, 1610
(1998). However, because De La Garza asserts that counsel’s
ineffective assistance prompted him to enter a plea without
understanding the rights he was waiving, the claim is addressed.
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)
(an ineffective-assistance-of-counsel claim is of constitutional
magnitude and satisfies the cause and prejudice standard for
collateral review).
A defendant may waive his right to appeal and to pursue
postconviction relief as part of a plea agreement, but the waiver
must be informed and voluntary. United States v. Wilkes, 20 F.3d
651, 653 (5th Cir. 1994). When the record clearly shows that the
movant read and understood the plea agreement and that he raised
no question regarding the waiver-of-appeal provision, the plea
agreement is upheld. United States v. Portillo, 18 F.3d 290,
292-93 (5th Cir. 1994).
The record of De La Garza’s rearraignment demonstrates that
he entered a knowing and voluntary guilty plea. De La Garza
stated under oath at the rearraignment that he understood, and
agreed to, all the terms in the plea agreement. Solemn
declarations in open court carry a strong presumption of verity.
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Furthermore, De
No. 96-50954
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La Garza was not denied a direct appeal or consideration of his
§ 2255 claims.
De La Garza correctly contends that the waiver provision in
his plea agreement does not preclude consideration of
ineffective-assistance claims in a § 2255 proceeding. De La
Garza contends that trial counsel provided ineffective assistance
by failing to challenge the use of his state drug convictions to
sentence him as a career offender on the grounds that the
convictions were related and consolidated, by failing to
investigate and discover defenses to the use of the state court
convictions to sentence him as a career offender, and for failing
to make the district court aware of Question 86 of the Most
Frequently Asked Questions about the Sentencing Guidelines (MFAQ
86). The district court, in an alternative holding, accepted the
magistrate judge’s report and recommendation, which rejected De
La Garza’s ineffective-assistance claims on the merits. We have
reviewed the record and the district court's opinion and find no
reversible error. Accordingly, we AFFIRM the district court's
denial of § 2255 relief on De La Garza’s ineffective-assistance
claims for the reasons accepted by the district court. See De La
Garza v. United States, No. SA-95-CV-0804 (W.D. Tex. Nov. 27,
1996).
De La Garza contends also that counsel provided ineffective
assistance by failing to challenge the validity of his state
court convictions as unconstitutional and based on his allegation
that he was denied a direct appeal in state court. De La Garza
has not shown prejudice from counsel’s alleged failure to raise
No. 96-50954
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these issues. See Strickland v. Washington, 466 U.S. 668, 687
(1984)(ineffective assistance requires showing of deficient
performance and prejudice). De La Garza’s conclusional
assertions are insufficient to establish ineffective assistance.
Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)
(ineffectiveness claim based on speculation or conclusional
rhetoric will not warrant relief). In addition, the record
refutes De La Garza’s assertion that counsel in the state court
proceedings failed to inform him of the appeal period. Moreover,
De La Garza has not shown that the district court would have
exercised its discretion to entertain challenges to the state
court convictions. See United States v. Canales, 960 F.2d 1311,
1316 (5th Cir. 1992); see United States v. Shannon, 21 F.3d 77,
82 (5th Cir. 1994).
De La Garza’s claims that appellate counsel provided
ineffective assistance by failing to raise the MFAQ 86 issue and
by failing to assert that counsel in the district court provided
ineffective assistance are without merit. De La Garza has not
shown that counsel in the district court provided ineffective
assistance and advisories such as that presented by MFAQ 86 are
not precedent and are not binding on the courts. See United
States v. Kings, 981 F.2d 790, 795 n.10 (5th Cir. 1993).
We will not consider De La Garza’s contention that his
attorney coerced him into pleading guilty, which is raised for
the first time in a reply brief. See Stephens v. C.I.T.
Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992).
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Finally, we do not consider De La Garza’s repeated challenge
to the district court’s application of the career offender
provision. We rejected that argument on direct appeal. See
United States v. De La Garza, No. 92-5657 (5th Cir. June 23, 1993
(unpublished); see United States v. Kalish, 780 F.2d 506, 508
(5th Cir. 1986)(issues raised and disposed of in a previous
appeal are not considered under § 2255).
AFFIRMED; MOTION GRANTED.