United States v. Hernandez-Zavala, No. 18-40669 (5th Cir. 2021)Annotate this Case
The Fifth Circuit affirmed the summary dismissal of defendant's pro se 28 U.S.C. 2255 motion, in which he challenged his sentence for revocation of supervised release that resulted in an 18-month prison sentence to run consecutively with his sentence for illegal reentry. Defendant claimed that he received ineffective assistance of counsel and that his due process rights were violated.
The court held that a district court does not err in declining to offer sua sponte a section 2255 movant an opportunity to amend. In this case, defendant never moved for leave to amend, and United States v. Martinez, 181 F.3d 627 (5th Cir. 1999), does not establish a requirement to offer sua sponte a movant the opportunity to amend. Furthermore, defendant failed to state how he would cure his section 2255 motion if given the chance to amend.