USA v. Melancon et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ORDER & REASONS
Before the Court is pro se defendant Brock Melancon’s motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 22551 and his supplemental memorandum in support.2
The United States of America (“the government”) responds in opposition,3 and Melancon replies
in further support of his motion.4 Having considered the parties’ memoranda, the record, and the
applicable law, the Court denies the motion.
I. 	BACKGROUND
On June 13, 2019, Melancon was indicted by a grand jury on four counts: (1) conspiring
to distribute methamphetamine and heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
841(b)(1)(C), and 846; (2) being a convicted felon in possession of a firearm, in violation of 28
U.S.C. §§ 922(g)(1) and 924(a)(2); (3) possessing with intent to distribute methamphetamine and
heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 18 U.S.C. § 2; and
(4) possessing firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A).5 	After finding that Melancon could not afford an attorney, the magistrate judge
1 R. Doc. 255.
2 R. Doc. 257.
3 R. Doc. 258.
4 R. Doc. 259.
5 R. Doc. 1.
UNITED STATES OF AMERICA
VERSUS
BROCK MELANCON
CRIMINAL ACTION
NO. 19-119
SECTION M
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 1 of 26

2
appointed the federal public defender’s office to represent him.6 Federal public defender Maura
Doherty first entered an appearance on Melancon’s behalf at his arraignment on June 24, 2019.7
Melancon was remanded into federal custody that day.8 Trial was originally set for August 26,
2019, but it was continued several times during 2019.9 With a January 13, 2020 trial date, the
parties both made significant pretrial preparations in late 2019 and early 2020, including, but not
limited to, litigating Melancon’s motion to suppress through a hearing and ruling.10 	Jerrod
Thompson-Hicks, also of the federal public defender’s office, was enrolled as additional counsel
for Melancon on December 16, 2019.11
On January 8, 2020, days before trial, counsel for Melancon requested a plea agreement
hearing, also known as a Frye hearing, “to inform Mr. Melancon of the maximum penalties he
face[d] if convicted after a trial, as well as potential plea offers made to him by the government.”12
This Court granted that motion and scheduled a Frye hearing for January 10, 2020.13 On January
10, 2020, the day the Frye hearing was set, this Court received correspondence from Melancon
dated January 7, 2020, requesting that the Court remove Doherty as counsel of record and appoint
new counsel because he thought Doherty was unprepared for trial and had not been acting in his
best interest.14 	That day, January 10, this Court conducted the Frye hearing as scheduled and
determined that the defendant knowingly rejected the government’s plea agreement.15 	At the
hearing, the Court also addressed Melancon’s request for new counsel.16 After questioning
6 R. Doc. 15.
7 R. Doc. 22.
8 R. Doc. 23.
9 See R. Docs. 22; 34; 48; 50.
10 See, e.g., R. Docs. 45; 53; 54; 58.
11 R. Doc. 64.
12 R. Doc. 71 at 1 (citing Missouri v. Frye, 566 U.S. 134 (2012)).
13 R. Doc. 73.
14 R. Doc. 77-1.
15 R. Doc. 82.
16 Id.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 2 of 26

3
Melancon and his counsel, the Court found that the defendant failed to show good cause and denied
his request for new counsel.17 Finally, also on January 10, Melancon requested to continue the
trial, which this Court granted, and it reset his trial from January 13, 2020, to April 13, 2020.18
The COVID-19 pandemic then necessitated several successive continuances throughout 2020 and
early 2021.19 This Court ordered its final pandemic-related continuance on April 5, 2021, setting
Melancon’s trial for August 23, 2021.20
On November 2, 2020, amidst the series of pandemic-related trial continuances, Doherty
filed a motion for leave to withdraw as Melancon’s counsel, explaining that she had taken another
position in the federal public defender’s office and that her withdrawal was in Melancon’s best
interest.21 The motion also asked this Court to appoint Criminal Justice Act panel member Sean
Toomey as Melancon’s new counsel.22 This Court granted the motion.23
On April 23, 2021, the government moved to continue Melancon’s August 23 trial date for
two reasons: the government’s scheduling conflicts, and discussions between the government and
defense counsel about “whether th[e] matter may be resolved without the necessity of a criminal
trial.”24 	This Court granted that motion25 and then two more motions to continue filed by
Melancon,26 until the trial was eventually set for May 23, 2022. On January 7, 2022, this Court
17 Id.; see also R. Doc. 77.
18 R. Doc. 80.
19 R. Docs. 94; 104; 106; 114; 127.
20 R. Doc. 127.
21 R. Doc. 110. Thompson-Hicks did not withdraw as counsel at that time, although he apparently no longer
took an active role in Melancon’s representation after Doherty’s withdrawal.
22 Id.
23 R. Doc. 111.
24 R. Doc. 133.
25 R. Doc. 135.
26 R. Docs. 144; 154.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 3 of 26

4
granted Melancon’s motion to enroll Alec Andrade and Sheri Corales, two of Toomey’s associates,
as additional counsel of record.27
On March 8, 2022, Melancon moved for a hearing to determine counsel, which this Court
granted.28 The hearing was conducted on March 15, 2022.29 At the hearing, Melancon alleged
that his counsel failed to meet with him and provide requested paperwork, and he claimed that he
and his counsel had differences of opinion on case strategy.30 Toomey stated that he, Andrade,
and Corales had been investigating the case, developing trial strategies, drafting motions, seeking
evidence from the government, and meeting with Melancon by telephone, video conference, and,
when possible, in person.31 Toomey stated that he was well-positioned to try the case.32 Toomey
also explained that some of Melancon’s requests were impossible to fulfill because the documents
Melancon sought did not exist or the requests were premature, such as Melancon’s request for
Brady materials.33 Finding that Melancon’s allegations were conclusory and not credible, and that
Toomey and his associates were prepared to continue in their representation of Melancon, the
Court denied Melancon’s request for new court-appointed counsel.34 	The Court additionally
explained to Melancon that Toomey was a qualified attorney, and Toomey’s representation would
be much better if Melancon cooperated with and listened to Toomey.35
The Court conducted a final pretrial conference on April 20, 2022.36 	Following the
conference, on April 27, 2022, another associate from Toomey’s firm, Cristian Soler, enrolled as
27 R. Doc. 151.
28 R. Docs. 157 (counsel’s motion for hearing to determine counsel); 158 (order granting counsel’s motion).
29 R. Doc. 160.
30 R. Doc. 161 at 5.
31 Id.
32 Id.
33 Id.
34 Id. at 6.
35 Id.
36 R. Doc. 162.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 4 of 26

5
additional counsel of record for Melancon.37 	Toomey and his associates made several pretrial
filings on Melancon’s behalf between May 6 and May 17, 2022: two motions in limine, a motion
to compel production of items for trial, proposed jury instructions, proposed voir dire questions,
and an expedited request for this Court to issue subpoenas.38 On May 10, Melancon again moved
to continue trial because he wanted to develop evidence related to a defense strategy Melancon
only revealed to his counsel in late March of 2022, over a year after Toomey enrolled as his
counsel.39 After ordering and receiving briefing by both parties, this Court denied that motion.40
Then, on May 18, 2022, this Court held a second Frye hearing, at which it again found that
Melancon knowingly, willingly, and voluntarily rejected the plea agreement offered by the
government.41
On Friday, May 20, 2022, with trial set to begin the following Monday, Melancon indicated
he would like to enter a plea of guilty as to each of Counts 1, 2, and 3 of the indictment.42 To
comply with Melancon’s request, the parties and the Court coordinated to hold a special
rearraignment hearing by videoconference that afternoon.43 	At the beginning of the hearing,
Maurice Landrieu, the assistant United States attorney, made the following statement to the Court:
LANDRIEU: Your Honor, if I may, before the Court starts, advise the Court as to
where we are. We certainly appreciate the Court for giving us the opportunity to
resolve this matter this afternoon. However, I just spoke to Mr. Melancon on the
phone with his attorneys while we were on mute here, and Mr. Melancon has
indicated to me that he does not understand all of the ramifications or all the
wording in the plea agreement and factual basis. While he did not go into specifics
37 R. Doc. 164.
38 R. Docs. 169 (motion for expedited issuance of subpoena); 173 (motion to compel production of jail
communications); 182 (Melancon’s first motion in limine); 183 (Melancon’s proposed jury instructions); 184
(Melancon’s proposed voir dire questions); 189 (Melancon’s second motion in limine).
39 R. Doc. 172.
40 R. Docs. 174 (briefing order as to Melancon’s motion to continue); 181 (order denying Melancon’s motion
to continue trial).
41 R. Doc. 191.
42 R. Doc. 197.
43 R. Doc. 233 at 28-29. Due to the COVID-19 outbreak, Melancon waived his right to appear in person at
his rearraignment and requested that the proceeding be held via videoconference. R. Doc. 196.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 5 of 26

6
with me right now concerning what he did not understand, he’s asked for more
time, and I told him we were out of time because obviously we’re at literally 4:00
o’clock on Friday afternoon and his trial starts on Monday morning.
So before the Court started with its colloquy, I just wanted the Court to ask Mr.
Melancon if that was correct and whether we wanted to go forward with the plea
now. 	Obviously, we’re not going to force the defendant into pleading guilty or
signing some documents that he’s not comfortable with, but those documents aren’t
going to change between now and Monday. 	So I just want to give it over to the
Court.
THE COURT: So Mr. Melancon, I have heard from Mr. Landrieu. I want to ask
whether you’re in a position now to move forward with a plea. Do you understand
the documents that have been presented to you?
THE DEFENDANT: Somewhat, sir, yes, sir.
THE COURT: Do you understand the documents enough to enter a plea that’s
knowing, willing, and voluntary?
THE DEFENDANT: Yes, sir.
THE COURT: I didn’t hear that. Is that a yes?
THE DEFENDANT: Yes, sir.
THE COURT: Okay, all right. I’m going to see how far we get on this, then. But
if at any point in time during the course of this proceeding, I feel like this plea is
not knowing, not voluntary, and not willing, we’re going to go to trial on Monday,
okay?
LANDRIEU: Yes, sir.44
The Court then conducted the rearraignment. 	During the hearing, Melancon indicated that he
understood the proceedings, the elements of the crimes with which he was charged, the maximum
penalties he faced, the advisory nature of the sentencing guidelines, and the constitutional rights
he waived by entering a plea of guilty.45 Further, Melancon explicitly said that he understood the
plea agreement and agreed with the government’s factual basis.46 	This Court asked Melancon
three different times, at three different points in the hearing, how he wanted to plead to the
44 R. Doc. 234 at 2-3.
45 Id. at 8-16.
46 Id. at 17-19.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 6 of 26

7
charges.47 All three times, he answered that he wanted to plead guilty.48 In the end, the Court
found that Melancon’s plea of guilty was knowing, willing, and voluntary, and had a basis in fact
that contained all the elements of the crimes charged, and the Court entered a judgment of guilty
as to Counts 1, 2, and 3 of the indictment.49
In preparation for sentencing, United States Probation (“probation”) prepared a draft
presentence investigation report.50 	Before sentencing, Melancon raised two objections to that
report,51 one of which is relevant to the pending motion. He noted that probation determined that,
based on the information in the factual basis, Melancon should receive two sentencing
enhancements: one for threatening an individual and one for obstructing justice.52 He objected to
the two enhancements prior to his sentencing because “the language included in the factual basis
supporting these enhancements was inartful.”53 Melancon explained that, in making this objection,
he was not withdrawing his guilty plea since the “enhancements [were] not evidence … necessary
to establish the elements [of] the crimes to which he pleaded guilty,” but he was asking this Court
to conduct an evidentiary hearing at sentencing to determine the truth of the facts underlying the
sentencing enhancements.54 	However, at Melancon’s sentencing hearing on October 27, 2022,
this Court overruled the objection because “[t]he facts underlying both enhancements are clearly
articulated in the factual basis to which the defendant agreed and signed.”55 This Court also noted
that, in connection with Melancon’s objection, he “failed to provide any competent rebutta[l]
evidence to negate the information contained within the factual [basis] and had the opportunity to
47 Id. at 13, 16, 21.
48 Id.
49 Id. at 31-32.
50 R. Doc. 201.
51 R. Doc. 207.
52 Id. at 4.
53 Id.
54 Id.
55 R. Doc. 233 at 5.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 7 of 26

8
do so, both in his objections to the presentence investigation report, his sentencing memorandum,
and in his motion for downward variance.”56
The Court sentenced Melancon to imprisonment for terms of 262 months as to Counts 1
and 3 of the indictment and 120 months as to Count 2 of the indictment, with all terms to run
concurrently.57 The Court further sentenced Melancon to five years of supervised release as to
Counts 1 and 3 and three years of supervised release as to Count 2, also to run concurrently.58 At
the conclusion of the sentencing hearing, Toomey indicated to this Court that, at Melancon’s
request, he would be filing a notice of appeal on Melancon’s behalf.59 	In connection with
Melancon’s appeal, Toomey asked “to put on the record a personal recitation of [Toomey’s]
recollection of the timing of the day on which [Melancon] pled guilty,” as Melancon believed
Toomey’s statement would have some relevance for Melancon’s appeal.60 The government did
not object to Toomey’s request.61 Then, on the record, the following exchange occurred:
TOOMEY: Yes, your honor. 	Just by way of creating a record for potential
appellate purposes. 	Since my involvement with this case, the defendant had
indicated that he had no desire to plead guilty and was requesting a trial by jury.
And as a result, I never engaged in any substantive negotiations for a plea with the
government. Though I had always known that there was an opportunity to plead
guilty, we did not engage in what would be the typical exchange of a factual basis
with negotiating language or anything like that through any of our – any of my
involvement with this case.
This trial was set for a particular Monday [viz., May 23, 2022] and the week before
there was a Frye hearing before this court [on May 18, 2022], and the Friday [viz.,
May 20, 2022] before the Monday trial at approximately 11:30 a.m. I was contacted
by the defendant, and he told me he had decided that he did want to accept the
government’s offer to plead guilty. I explained to the defendant that I wasn’t sure
at this late date that that was a possibility as a practical matter, but that I would,
because it’s his desire, attempt to see if that was possible.
56 Id.
57 R. Doc. 221 at 2.
58 Id. at 3.
59 R. Doc. 233 at 27.
60 Id.
61 Id.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 8 of 26

9
I then called immediately Mr. Landrieu, explained to him what I had just learned,
and he understandably said that he didn’t know if that was possible but certainly
would give it consideration and reach out to the Court and find out if that was even
a possibility.
He returned or called me back sometime later, explained that the Court was willing
to conduct a re-arraignment that afternoon, my best memory was it was at 3:30, but
that’s I’m sure a part of the transcript of the re-arraignment, to be done virtually via
Zoom.
I asked Mr. Landrieu to get me copies of the factual basis and plea agreement,
which took him some time to put together, but he did. As soon as I received that, I
printed them out immediately, I ran to my truck, which is located at One Shell
Square [in the Central Business District of New Orleans], I drove as quickly as I
could to St. Tammany Parish, there was traffic. I arrived at the facility maybe 15
minutes before the re-arraignment started. My associate Alec Andrade, who is in
the courtroom today, had gotten there earlier because he was on the north shore [of
Lake Pontchartrain in St. Tammany Parish], and so Mr. Melancon had a chance to
review the factual basis and plea agreement prior to me arriving.
I spoke to him about the documents. He expressed frustration and displeasure. I
immediately called Mr. Landrieu on my cell phone, put him on speaker, and
allowed Mr. Landrieu and Mr. Melancon to have a conversation. In summary, Mr.
Landrieu understandably made it clear that this was the 11th hour, there was no
additional time to negotiate, that had passed, and at this time it was simply a choice
that Mr. Melancon had to make whether he wanted to accept the terms that were
before him or whether he did not.
During almost at the end of that, literally at the end of that conversation your Honor
appeared on the Zoom, and I believe once – and this should be on the transcript –
Mr. Landrieu noted that he wasn’t sure that this plea was going to go forward
because of how Mr. Melancon was communicating. 	And I believe your Honor
communicated back that we’ll see what happens.
And that is my best recollection, it’s not a perfect recollection, but that’s my best
recollection of the timing of the events of that day. 	And that’s all I have to say.
Thank you, Judge.
THE COURT: All right, Mr. Toomey. 	Do you want to say anything, Mr.
Landrieu?
LANDRIEU: Yeah. Your Honor, I have, obviously, no objection to Mr. Toomey’s
recollection of the facts as he sees them in connection with this guilty plea.
And as this Court is well aware, this wasn’t the first time we got to the brink of trial
in connection with this case. This case has been going on in this court since 2019,
I believe, and we were, I think, one day away from trial when the case got continued
at the last minute. I had multiple discussions with his previous attorney, I’ve had
multiple discussions with Mr. Toomey concerning this case and any potential
resolutions.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 9 of 26

10
It was, in fact, Mr. Melancon who started at the last minute decided he wanted to
plead guilty. 	And we did, in fact, enter into plea negotiations with him, as the
record is I think crystal clear, with his signed plea agreement. The government has
agreed to dismiss Count 4 as long as he pled to the other counts. The factual basis
is the factual basis. It’s signed, it’s initialed on every page. And the transcript of
that re-arraignment is, I think, crystal clear as to what happened.
And I have no reasons to doubt that this Court, just like it does in every re-
arraignment proceeding, has followed the letter of the law to the tee. 	And if he
wants to present some type of concern about that process, he has every right to do
so, I guess, if it’s not waived in his plea agreement.
THE COURT: All right. So the Court will just say, the plea was itself at the 11th
hour, certainly Friday before a Monday trial. Everything was set in place to go to
trial on Monday, and the Court was fully prepared to do so, but took extraordinary
efforts to try to accommodate Mr. Melancon in making the guilty plea, which was
his expressed desire at that time, and asking that counsel for the defense and the
prosecution, the government take extraordinary efforts themselves in order to make
sure that it was done.
Notwithstanding that, the Court took the pains it usually takes in going through
every step of a re-arraignment to ensure that the plea was voluntary, willing, and
knowing and that the Court is confident based upon the questions that were posed
and the answers that were given at that re-arraignment proceeding that it was indeed
a voluntary, willing, and knowing plea.
And I am not sure really what the statement does here, because it is made after a
sentence has been imposed on the basis of that guilty plea.
So anyway, I just wanted to make that statement also in order to round out the
record for whatever may come.62
After the sentencing, Toomey indeed filed a notice of appeal on behalf of Melancon and
then withdrew from the case.63 	Melancon, assisted by appointed appellate counsel, argued on
appeal that this Court’s use of his prior drug conspiracy conviction to qualify him as a career
offender was improper.64 He urged that inchoate offenses are not included in the definition of a
“controlled substance offense” under the U.S.S.G. § 4B1.2(b) and that the guidelines commentary
is not entitled to deference.65 	Recognizing that his argument was foreclosed by Fifth Circuit
62 Id. at 27-31.
63 R. Docs. 223 (notice of appeal); 224 (motion to withdraw Toomey, Andrade, Corales, and Soler as counsel
and appoint new counsel).
64 R. Doc. 240-1 at 1-2.
65 Id.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 10 of 26

11
precedent, Melancon simply sought summary affirmance of his sentence, which the Fifth Circuit
granted on January 19, 2024.66 Thereafter, the United States Supreme Court denied Melancon’s
petition for a writ of certiorari.67
On September 29, 2025, Melancon moved this Court to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, claiming that Toomey and Andrade provided ineffective
assistance of counsel.68
II. 	LAW & ANALYSIS
A. Section 2255 Standard
A federal prisoner serving a court-imposed sentence “may move the court which imposed
the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). A narrow set of
claims are cognizable on a § 2255 motion: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was without jurisdiction to impose the
sentence; (3) the sentence was in excess of the statutory maximum; or (4) the sentence is
“otherwise subject to collateral attack.” 	Id. 	A claim of error that is neither constitutional nor
jurisdictional is not cognizable in a § 2255 proceeding unless the error constitutes “‘a fundamental
defect which inherently results in a complete miscarriage of justice.’” United States v. Addonizio,
442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
When a prisoner files a § 2255 motion, the district court must first conduct a preliminary
review, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.”
66 Id. at 2 (citing United States v. Vargas, 74 F.4th 673, 680-90 (5th Cir. 2023) (en banc), as to which a
petition for certiorari was then pending).
67 R. Doc. 244 (letter dated Apr. 29, 2024). In the meantime, cert had been denied in Vargas on February 20,
2024. See 144 S. Ct. 828.
68 R. Doc. 255 at 1.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 11 of 26

12
Rules Governing Section 2255 Proceedings for the U.S. District Courts, Rule 4(b). 	But, if the
motion raises a non-frivolous claim to relief, the court must order the government to file a response
or take other appropriate action. Id. The judge may then require the parties to expand the record
as necessary and, if good cause is shown, authorize limited discovery. Id. Rules 6-7. Then, after
reviewing the government’s answer, any transcripts and records of prior proceedings, and any
supplementary materials, the court must determine if an evidentiary hearing is warranted. Id. Rule
8. An evidentiary hearing must be held unless “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). However, the
court need not hold an evidentiary hearing if the prisoner fails to produce an “independent indicia
of the likely merit of [his] allegations.” 	United States v. Edwards, 442 F.3d 258, 264 (5th Cir.
2006) (quotation omitted).
A § 2255 petitioner bears the burden of establishing his or her claims of error by a
preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). Yet,
courts “liberally construe briefs of pro se litigants and apply less stringent standards to parties
proceeding pro se than to parties represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995). 	If the court finds that the prisoner is entitled to relief, it “shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).
B. Waiver
As oft stated by the Fifth Circuit, “an informed and voluntary waiver of post-conviction
relief is effective to bar such relief.” United States v. Del Toro-Alejandre, 489 F.3d 721, 722 (5th
Cir. 2007) (quotation omitted). The plea waiving such relief must be knowingly and voluntarily
made and is not rendered involuntary simply because induced by “a plea bargaining situation.”
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 12 of 26

13
Gafford v. United States, 438 F.2d 106, 107 (5th Cir. 1971). 	But an ineffective-assistance-of-
counsel argument survives such a waiver “when the claimed assistance directly affected the
validity of that waiver or the plea itself.” United States v. Crain, 877 F.3d 637, 646 (5th Cir. 2017)
(quotation omitted). 	Here, Melancon’s plea agreement contained a waiver of his right to
collaterally challenge his sentence through a § 2255 petition, but specified that he retained the right
to raise a claim of ineffective assistance of counsel in an appropriate proceeding.69
C. Ineffective Assistance of Counsel
“An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding
under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” United
States v. Owens, 94 F.4th 481, 486 (5th Cir. 2024) (quotation omitted). 	Claims for ineffective
assistance of counsel are governed by the two-part standard established in Strickland v.
Washington, 466 U.S. 668 (1984). To prevail under Strickland, a defendant “must show that (1)
his counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.”
Owens, 94 F.4th at 486. Counsel’s assistance is deficient if it “fell below an objective standard of
reasonableness.” Id. (quotation omitted). 	Judicial scrutiny of counsel’s performance is “highly
deferential” and applies a “strong presumption” that counsel’s assistance was reasonable. 	See
Strickland, 466 U.S. at 689. To meet the prejudice prong, a defendant “must affirmatively prove,
and not merely allege, prejudice.” DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Deficient
assistance of counsel prejudices a defendant if there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “[W]hen a defendant claims that his counsel’s deficient performance
deprived him of a trial by causing him to accept a plea,” the prejudice inquiry “focuses on a
69 See R. Doc. 199 at 3.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 13 of 26

14
defendant’s decisionmaking.” Lee v. United States, 582 U.S. 357, 364, 367 (2017). 	Therefore,
“[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,” but “should instead look to
contemporaneous evidence to substantiate a defendant’s expressed preferences.” Id. at 369.
“A failure to establish either deficient performance or resulting prejudice defeats the
claim.” United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999). “Thus, even where counsel
has rendered totally ineffective assistance to a defendant entering a guilty plea, the conviction
should be upheld if the plea was voluntary. 	In such a case there is no actual and substantial
disadvantage to the defense.” DeVille, 21 F.3d at 659 (quotation and alteration omitted).
D. Analysis
As an initial matter, in Melancon’s reply, he claims that, because “the government’s
response merely places Mr. Melancon’s claims into direct contest,” this Court is required to
conduct an evidentiary hearing pursuant to § 2255(b).70 However, as discussed, where “the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief,” a
court need not conduct an evidentiary hearing. 28 U.S.C. § 2255(b). As this Court will explain
throughout this analysis, the evidence in the record conclusively shows that Melancon is entitled
to no relief on his ineffective-assistance-of-counsel claim. 	Thus, this Court finds that an
evidentiary hearing pursuant to § 2255(b) is not required.
Melancon currently asserts two grounds for relief. The Court will address both grounds,
and the Government’s response to each, in turn.
70 R. Doc. 259 at 1.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 14 of 26

15
1. 	Melancon is not entitled to relief on ground one, in which he claims that Toomey
and Andrade failed to engage in any meaningful negotiation with the government
concerning the factual basis and plea agreement.
Melancon’s first ground for relief claims that Toomey and Andrade failed to meaningfully
engage in negotiation of the factual basis and plea agreement.71 He says they first received a copy
of the factual basis and plea agreement on the morning of his May 20, 2022 rearraignment, and
then he argues that they should have requested a continuance of the rearraignment to determine
whether there was a possibility of negotiating more favorable plea terms or language in the factual
basis.72 	Melancon claims that Toomey did not request to negotiate the factual basis or plea
agreement 	further 	because 	he 	“was 	newly 	appointed 	and 	wasn’t 	present 	for 	the 	initial
negotiations.”73 	He submits that the attorneys violated (1) the American Bar Association’s
Criminal Justice Standard 4-4.1, which he says imposes upon defense counsel a duty to thoroughly
investigate the allegations against a criminal defendant and to strive for the best results for every
client, and (2) the Sixth Amendment, which he says requires counsel’s investigation and effective
preparation.74 Melancon concludes that, as a result of Toomey’s and Andrade’s failure to request
a continuance, the factual basis contained language which resulted in a higher guideline range for
Melancon.75
In response, the government argues that it was Melancon, rather than his counsel, who
refused plea negotiations, given that the Court held two Frye hearings in Melancon’s case, and
Melancon rejected the government’s plea offers at both hearings.76 It notes that the transcript of
the rearraignment hearing evidences that defense counsel was aware of the plea agreement and
71 R. Doc. 255 at 4.
72 R. Doc. 257 at 4-5.
73 R. Doc. 255 at 4.
74 R. Doc. 257 at 4-5.
75 Id. at 5.
76 R. Doc. 258 at 7-8.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 15 of 26

16
factual basis in Melancon’s case.77 Next, the government says that Melancon fails to identify what
specific facts or language he wanted to have removed from the factual basis, or how these facts
affected his conviction or sentence, and that, in any event, the government would not have agreed
to any suggested changes to the plea agreement or factual basis but was, instead, ready to go to
trial.78 Then the government points out that, notwithstanding Melancon’s post hoc assertions in
his § 2255 petition, the statements he made under oath at the rearraignment hearing indicated that
he agreed with and understood the information in the factual basis.79 	Finally, the government
maintains that Melancon’s sentencing guideline range – specifically, his status as a career offender
in accordance with U.S.S.G. § 4B1.1 – was determined based on his prior convictions, not based
on any specific wording in the factual basis.80
In his reply, Melancon reiterates the arguments made in his motion.81 He also urges this
Court to disregard his sworn statements during the rearraignment – that he agreed to the
information in the factual basis – because, he claims, the government “pad[ded] the factual basis
with conduct that didn’t actually happen … with the sole purpose of causing prejudice with the
judge.”82 	He implies that the allegedly untrue information in the factual basis was used as
“relevant conduct” during sentencing, and thus Toomey’s failure to examine whether the factual
basis which Doherty negotiated with the government was favorable to Melancon, before advising
him to plead guilty, amounted to ineffective assistance of counsel.83 	Finally, Melancon argues
that because Toomey was unprepared for trial and had not negotiated a more favorable plea
agreement on Melancon’s behalf, Melancon was forced to choose between “proceed[ing] to trial
77 Id. at 8.
78 Id.
79 Id. at 8-9.
80 Id. at 9.
81 R. Doc. 259 at 2.
82 Id. at 3.
83 Id. at 4.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 16 of 26

17
just days later with an unprepared trial lawyer” or accepting the plea offer that he says his previous
attorney, Doherty, had negotiated for him.84
As this Court previously explained, Melancon’s burden is to show that Toomey’s and
Andrade’s performance was deficient and that their deficient performance prejudiced Melancon.
None of Melancon’s arguments as to his first ground for relief satisfies either of those prongs, and
as a result, Melancon is not entitled to relief on the basis of the first ground raised in his motion.
a. 	Toomey’s and Andrade’s performance did not fall below any objective
standard of reasonableness.
In evaluating the arguments Melancon makes in connection with the first ground for relief,
this Court again must highlight the eleventh-hour nature of Melancon’s decision to plead guilty,
as it finds that fact perhaps the most pertinent to its conclusion that Toomey’s and Andrade’s
performance did not “f[a]ll below an objective standard of reasonableness.” Owens, 94 F.4th at
486 (quotation omitted). Melancon primarily takes issue with Toomey’s failure to negotiate more
favorable plea agreement terms with the government. However, Toomey indicated at Melancon’s
sentencing hearing that Toomey and the government had not engaged in substantive plea
negotiations precisely because of Melancon’s insistence on proceeding to trial.85 And evidence of
Melancon’s insistence on proceeding to trial is well-documented in the record: not only did
Melancon reject plea offers at two separate Frye hearings, he admits in his reply that “from the
outset of this case, Mr. Melancon has zealously advocated his innocence and his desire to proceed
to trial.”86 Considering the volume of evidence indicating Melancon’s intent to go to trial rather
than plead guilty, and his admission of this intention, this Court cannot say it was objectively
84 Id. at 6.
85 See R. Doc. 233 at 28.
86 R. Doc. 259 at 4.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 17 of 26

18
unreasonable, or a violation of any American Bar Association standard, for Toomey and Andrade
to focus their efforts on trial preparation rather than on negotiating a plea deal for Melancon.
Then, by the time Melancon indicated to Toomey that he would be interested in entering a
guilty plea (11:30 a.m. on the Friday before the Monday trial was set to begin), Toomey could not
possibly have engaged in any meaningful plea negotiations. 	Toomey explained that once
Melancon told him about his desire to plead guilty, Toomey coordinated with the government and
this Court as quickly as possible to set the matter for hearing. 	Working as fast as he could,
including his necessary travel to Melancon’s location in St. Tammany Parish, Toomey had fifteen
minutes before the hearing was set to begin during which he could review the documents with
Melancon, discuss with Melancon any qualms he had with the factual basis or terms of the plea
agreement, and work to resolve them with the government. Even with such little time, Toomey
contacted Landrieu to discuss the terms with which Melancon was displeased, but their
conversation was cut short by the commencement of the rearraignment hearing. And nonetheless,
at the start of the rearraignment hearing, Melancon indicated to this Court that he wanted to
proceed with the hearing based on the documents he was given.87
Undeterred by this chronology, Melancon still contends that Toomey and Andrade should
have requested a continuance of the rearraignment “to better assess whether negotiation [with] the
government would be in the best interest of [Melancon].”88 But any request for a continuance of
the rearraignment would certainly have been futile – as the government makes clear.89 To request
a continuance of the rearraignment, Toomey would also have had to request a continuance of the
trial, as trial was to begin less than one business day after Melancon’s indication that he wanted to
87 R. Doc. 234 at 3.
88 R. Doc. 257 at 5.
89 R. Doc. 258 at 8 (explaining that the government would not have agreed to any changes but was prepared
to go to trial).
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 18 of 26

19
enter a guilty plea. But this Court had by then denied Melancon’s May 10, 2023 motion to continue
Melancon’s trial (which had been filed by Toomey), citing, in part, Melancon’s “recalcitrant,
uncooperative, and frequently noncommunicative [behavior] with his counsel throughout these
proceedings.”90
Put simply, because Melancon indicated so late that he wanted to plead guilty rather than
go to trial, Toomey and Andrade did not have the time to meaningfully negotiate the terms of the
plea agreement once they realized Melancon did not want to go to trial. 	And it was not
unreasonable that they did not request a continuance of the rearraignment to attempt such
negotiations, as this Court had indicated by its denial of Melancon’s last motion to continue trial
that it would not indulge such a request. As a result, Toomey’s and Andrade’s lack of participation
in substantive plea negotiations prior to Melancon’s guilty plea did not fall below any objective
standard of reasonableness.
b. 	Assuming arguendo that Toomey and Andrade’s performance fell below some
objective standard of reasonableness, Melancon was not prejudiced by their
performance.
Even if their conduct was not reasonable, the Court does not see how Toomey’s and
Andrade’s conduct prejudiced Melancon. 	First, the government explained both at the May 20,
2022 rearraignment and in its opposition to the pending motion that it would not have agreed to
any suggested changes to the factual basis before trial.91 	Toomey’s and Andrade’s attempts to
negotiate the factual basis, then, would have been fruitless, and Melancon would still have had to
choose on Friday afternoon whether to accept the government’s offer or proceed to trial on
Monday. Second, and more importantly, Melancon expressly told this Court at his rearraignment
90 R. Doc. 181.
91 R. Docs. 234 at 3; 258 at 8.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 19 of 26

20
that he agreed that the contents of the factual basis were true and correct.92 Melancon cannot now
argue that he is prejudiced by any failure to negotiate more favorable plea agreement terms or
factual basis when he explicitly, knowingly, willingly, and voluntarily accepted those terms before
this Court.93
Although he argues that he was “coerced” into pleading guilty because his trial counsel
was unprepared for trial, this Court does not find that argument persuasive. Melancon does not
specify in which ways his trial counsel was unprepared for trial or point to any evidence of
unpreparedness. And based on the record, the Court finds no indication that trial counsel was not
prepared for trial. At the change-of-counsel hearing on March 15, 2022, Toomey explained, on
the record, that he and his associates were prepared to proceed to trial.94 	Further, Toomey,
Andrade, and their colleagues had made a litany of pretrial filings on Melancon’s behalf, including
proposed jury instructions, proposed voir dire questions, two motions in limine, a motion to
compel, and a motion for a subpoena, all of which indicate their familiarity with the charges against
Melancon and that they had developed a defense strategy.95
Melancon may take issue with the fact that, on May 10, 2022, counsel sought a continuance
to develop evidence related to a defense strategy Melancon revealed to his counsel in late March
of 2022, over a year after Toomey enrolled as his counsel.96 This Court, as it has already explained,
denied that continuance. Assuming that Melancon’s claim of counsel’s unpreparedness is based
92 R. Doc. 234 at 28.
93 Id. at 28-29
94 R. Doc. 161 at 5.
95 Reflective of counsel’s responsive and empathetic trial preparation, one of the motions which Toomey and
Andrade filed ahead of trial aligns with the defense goal Melancon claims he “zealously advocated” for “from the
outset of this case”: the exclusion of Casey Robichaux’s witness statements and information related to Melancon’s
previous drug convictions. See R. Docs. 257 at 4-5 (explaining Melancon’s desire to have Robichaux’s statements
and Melancon’s prior drug convictions excluded); 189 (Melancon’s motion in limine to exclude statements made by
Robichaux and any and all details and facts surrounding Melancon’s previous two drug convictions).
96 R. Doc. 172.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 20 of 26

21
on any inability of his counsel to present that defense strategy, however, it fails for two reasons.
First, when denying that continuance, this Court explained that its denial was based on Melancon’s
conduct, not counsel’s: “Had Melancon timely cooperated with his counsel, the supposedly ‘new’
trial strategy involving years’ old jail calls would have been apparent (and pursued) much
sooner.”97 	And second, the record indicates that counsel pursued that defense strategy even
without a continuance. To be sure, the record shows that Melancon’s counsel moved to compel
the government to produce the evidence necessary to present that new defense at trial,98 but this
Court denied the motion as moot because the government agreed to the request.99
Melancon also claims that he was prejudiced insofar as he “was held responsible under a
higher guideline range based on the language included in the factual basis document.”100 Although
he does not indicate the precise language in the factual basis document with which he takes issue,
this Court assumes he may be referring to the language in the factual basis which resulted in the
two sentencing enhancements he objected to prior to his sentencing (the specific-offense-
characteristic 	enhancement, 	for 	threatening 	an 	individual, 	and 	the 	obstruction-of-justice
enhancement).101 If this assumption is correct, the Court rejects Melancon’s argument here for the
same reasons it overruled the objection at sentencing. 	Thus, because Melancon, at his
rearraignment, explicitly agreed to all the language in the factual basis, he cannot now claim that
the language in the factual basis is inaccurate. 	And again, as with his sentencing objection,
Melancon neither provided nor pointed to any competent evidence in his § 2255 motion to show
that the language in the factual basis is incorrect. In sum, because Melancon agreed outright to
97 R. Doc. 181 at 2.
98 R. Doc. 173.
99 R. Doc. 191.
100 R. Doc. 257 at 5.
101 R. Doc. 211 at 12 (paragraphs 45 and 48).
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 21 of 26

22
the language in the factual basis, and there is no indicia of unreliability regarding any of that
information, this Court finds that Melancon was not prejudiced by any language in the factual
basis, 	including 	specifically 	the 	language 	resulting 	in 	the 	specific-offense-characteristic
enhancement and the obstruction-of-justice enhancement.
2. 	Melancon is not entitled to relief on ground two, his claim that Toomey and
Andrade failed to object to the Court’s constructive amendment of the terms of
the plea agreement.
Melancon’s second ground for relief also claims that Toomey provided ineffective
assistance of counsel, citing his counsel’s failure to object to what Melancon claims was this
Court’s constructive amendment of the terms of the plea agreement during Melancon’s
rearraignment hearing.102 	The relevant portion of Melancon’s plea agreement is reproduced
below:
Acknowledging these rights, subject only to the exceptions indicated in subsection
(d) below, the defendant, in exchange for the promise(s) and agreement(s) made by
the United States in this plea agreement, knowingly and voluntarily:
….
b. Waives and gives up any right to appeal any order, decision, or judgment arising
out of or related to Title 18, United States Code, Section 3582(c)(2) imposed by
any judge and further waives and gives up any right to challenge the manner in
which his sentence was determined and to challenge any United States Sentencing
Guidelines determinations and their application by any judge to the defendant’s
sentence and judgment;
c. 	Waives and gives up any right to challenge his sentence collaterally, including
but not limited to any and all rights which arise under Title 28, United States Code,
Sections 2255 and 2241, Rule 60 of the Federal Rules of Civil Procedure, Rule 36
of the Federal Rules of Criminal Procedure, writs of coram nobis and audita
querela, and any other collateral challenges to his sentence of any kind[.]103
102 R. Doc. 255 at 5. Melancon’s motion only alleges ineffective assistance of counsel by Toomey when
asserting his second ground for relief. See id. However, his memorandum in support takes issue with both Toomey’s
and Andrade’s failure to object to this Court’s statement at the rearraignment hearing. See R. Doc. 257 at 6. In
analyzing Melancon’s second ground for relief, then, this Court will consider Melancon’s allegations against both
Toomey and Andrade.
103 R. Doc. 199 at 3.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 22 of 26

23
In addition, the relevant portion of the transcript of Melancon’s rearraignment hearing is
reproduced below:
THE COURT: Also, according to the terms of the plea agreement, by pleading
guilty, you waive your right to contest your conviction and/or sentence in a post-
conviction proceeding, including, but not limited to a proceeding under 28 U.S.C.
Sections 2241 and 2255 on any ground to the extent those rights can be waived.
You retain, however, a right to raise a claim of ineffective assistance of counsel in
an appropriate proceeding.
Do you understand the extent to which you will waive these rights by pleading
guilty?
THE DEFENDANT: Yes, sir.
THE COURT: According to the terms of the plea agreement, by pleading guilty,
you also waive your right to appeal any order, decision, or judgment imposed by
any judge arising out of or related to 18 U.S.C. Section 3582(c)(2) to the extent that
this right is waivable, and you further waive and give up your right to challenge the
manner in which your sentence was determined and your right to challenge any
United States Sentencing Guideline determinations and their application by any
judge to your sentence and judgment to the extent that those rights are waivable.
Do you understand the extent to which you will waive these rights by pleading
guilty?
THE DEFENDANT: Yes, sir.104
In his motion, Melancon contends that “the court incorrectly amended the terms of his plea
agreement when it stated that Mr. Melancon would be waiving his right to contest his conviction
or sentence in a post-conviction proceeding, i.e., [28 U.S.C. §] 2241 and [28 U.S.C. §] 2255 or
brought under 18 U.S.C. section 3582(c)(2).”105 	In his memorandum, Melancon claims that a
defendant cannot waive his constitutional right under § 3582(c)(2) to request a sentencing
modification where the defendant’s sentencing guideline range has been lowered by the
Sentencing Commission following sentencing.106 He asserts that because this Court informed him
that the terms of his plea agreement included a waiver of his “right to appeal any order, decision,
104 R. Doc. 234 at 25-26.
105 R. Doc. 255 at 5.
106 R. Doc. 257 at 6.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 23 of 26

24
or judgment imposed by any judge arising out of or related to 18 U.S.C. section 3582(c)(2),” and
neither Toomey nor Andrade objected to such statement by the Court, the attorneys were
ineffective.
The 	government 	responds 	that 	Melancon’s 	petition 	omits 	this 	Court’s 	explicit
acknowledgment at rearraignment that Melancon only agreed to waive his right to an appeal
pursuant to 18 U.S.C. § 3582(c)(2) “to the extent that this right is waivable.”107 The government
then notes that Melancon’s waiver of his appellate rights under § 3582(c)(2) in his plea agreement
was thus broader than the waiver in his rearraignment colloquy.108 Given this, the government
submits that, to the extent this Court’s language at rearraignment is considered a modification of
the plea agreement, the modification actually benefits Melancon because the language is more
favorable to him.109 In his reply, Melancon generally reiterates the arguments he asserted in his
motion and his memorandum,110 but he does not specifically counter the points made by the
government in its response to his second ground.
This Court finds that the arguments Melancon advances in connection with his second
ground for relief also do not show that Toomey’s and Andrade’s performance was deficient or that
any deficiency prejudiced Melancon. 	When confirming whether Melancon understood that, as
part of his plea agreement, he waived his right to challenge his sentence or conviction in
proceedings brought pursuant to 18 U.S.C. § 3582(c)(2), 28 U.S.C. § 2241, and 28 U.S.C. § 2255,
the Court merely restated the rights that Melancon agreed to waive by signing the factual basis,
signing the plea agreement, and entering a plea of guilty. The language which this Court added
when describing the rights Melancon would waive as part of his plea agreement did not amount to
107 R. Doc. 258 at 10.
108 Id.
109 Id.
110 R. Doc. 259 at 3.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 24 of 26

25
a constructive amendment of the terms of the agreement that resulted in any waiver of rights he
did not expressly agree to waive as part of the agreement. That language simply acknowledged
governing law that invalidates a defendant’s waiver of his right to challenge his sentence on certain
grounds. Because this Court did not constructively amend the terms of the plea agreement, any
objection by Toomey or Andrade as to this Court’s description of said terms would have been
meritless. 	Therefore, in failing to object to this Court’s description of the terms of the plea
agreement, Toomey’s and Andrade’s performance did not fall below any objective standard of
reasonableness.
And, even if such objection would not have been meritless, Melancon could not show that
he has been prejudiced by Toomey’s and Andrade’s failure to object. On the one hand, Melancon
has not attempted to exercise any rights of appeal which he supposedly waived as a result of
Toomey’s and Andrade’s failure to object to this Court’s statement at the rearraignment hearing.
On the other hand, he cannot show that his lawyers’ failure to object impaired his ability to appeal,
because the language the Court used was arguably more favorable to Melancon in terms of
qualifying the appellate rights he was waiving. 	Thus, even if Toomey’s and Andrade’s
performance had been objectively unreasonable, this Court cannot say that such performance
would have prejudiced Melancon. As a result, there is no basis for granting Melancon’s motion
on his second ground for relief.
E. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Melancon’s § 2255 motion (R. Doc. 255) is DENIED.
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 25 of 26

26
New Orleans, Louisiana, this 17th day of December, 2025.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
Case 2:19-cr-00119-BWA-DPC Document 260 Filed 12/17/25 Page 26 of 26