Malik v. USA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
N OHMAAN M ALIK ,
Movant,
v. 	No. 4:25-cv-1135-P
(No. 4:22-cr-0340-P)
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Came on for consideration the motion of Nohmaan Malik under 28
U.S.C. § 2255 to vacate, set aside, or correct sentence. The Court, having
considered 	the 	motion, 	the 	response, 	the 	reply,1 	the 	record, 	and
applicable authorities, concludes that the motion must be DENIED.
BACKGROUND
On 	November 	10, 	2022, 	Movant 	was 	named 	in 	a 	three-count
information charging him in count one with conspiracy to commit bank
fraud, in violation of 18 U.S.C. § 1349, in count two with passport fraud,
in violation of 18 U.S.C. §§ 1546 and 2, and in count three with
aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2.
CR ECF No.2 12. Movant entered into a plea agreement pursuant to
which he agreed to 	plead guilty 	to 	the offenses 	charged and the
government agreed not to bring any additional charges based upon the
conduct underlying and related to the plea. CR ECF No. 18. The plea
agreement also set forth the penalties that could be imposed (including
imprisonment for up to 30 years as to count one, up to 10 years as to
count two, and a mandatory term of 2 years as to count three), the
Court’s sentencing discretion, recognition that no one could predict with
certainty the sentence that would be imposed, that the plea was freely
1 The Court is not considering any new grounds or evidence set forth in the reply.
United States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998); United States v.
Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).
2 The “CR ECF No. __” reference is to the number of the item on the docket in the
underlying criminal case, No. 4:22-cf-0340-P.
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and voluntarily made and not the result of force, threats, or promises,
that Movant waived his right to appeal except in certain limited
circumstances, and that Movant had thoroughly reviewed all legal and
factual aspects of the case with counsel and was fully satisfied with his
legal representation. Id. Movant also signed a factual resume that set
forth the penalties Movant faced as to each count, the essential elements
of each count, and the stipulated facts establishing that Movant had
committed each of the offenses charged. CR ECF No. 20.
On 	November 	22, 	2022, 	Movant 	appeared 	in 	open 	court 	for
arraignment and testified under oath that: he understood that the Court
would not be bound by the stipulated facts and could take into account
other facts; he had read the information and fully understood the
charges against him; he understood the essential elements of each count
and committed each of them; he had discussed with counsel how the
guidelines might apply in his case and was fully satisfied with the legal
representation 	and 	advice 	he 	had 	received; 	he 	signed 	the 	plea
agreement; 	he 	had 	read 	and 	understood 	the 	plea 	agreement; 	he
knowingly and voluntarily waived his right to appeal as set forth in the
plea agreement; he knowingly and voluntarily entered into the plea
agreement and no one made any promise or assurance or threat to
induce him to plead guilty; he understood the penalties he faced as to
each count; and, he read, understood, and signed the factual resume and
the facts set forth therein were true and correct. CR ECF No. 63.
The probation officer prepared the presentence report (“PSR”), which
reflected that Movant’s base offense level was 7. CR ECF No. 25-1, ¶ 51.
He received a 14-level enhancement based on the amount of intended
loss, id. ¶ 52, a 2-level enhancement because the offense involved 10 or
more victims, id. ¶ 53, a 2-level enhancement for relocating a fraudulent
scheme to evade law enforcement, id. ¶ 54, and a 4-level enhancement
for role as organizer or leader in a criminal activity that involved five or
more participants or was otherwise extensive. Id. ¶ 57. He received a 2-
level and a 1-level adjustment for acceptance of responsibility. Id. ¶¶ 61,
62. Based on a total offense level of 26 and a criminal history category
of III, his guideline imprisonment range for counts one and two was 78
to 97 months. Id. ¶ 110. The maximum term of imprisonment for count
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three was 2 years, which was required to be served consecutively to his
sentence on the other counts. Id. ¶ 109. Movant filed objections. CR ECF
No. 	28. The probation officer prepared an 	addendum to 	the PSR
reflecting a greater loss amount and consequential increase in the
guideline range to 121 to 151 months. CR ECF No. 30-1. Movant filed a
sentencing memorandum and motion for downward variance. CR ECF
No. 34.
The Court sentenced Movant to a term of imprisonment of 136
months as to count one, a term of imprisonment of 120 months as to
count two, to run concurrently with the sentence imposed as to count
one, and a term of imprisonment of 24 months as to count three, to run
consecutively to the sentences imposed as to counts one and two, for a
total term of imprisonment of 160 months. CR ECF No. 41. Retained
counsel were allowed to withdraw. CR ECF Nos. 45, 47. Movant filed a
notice of appeal, CR ECF No. 51, despite having waived the right to do
so. CR ECF No. 18, ¶ 12. The Court appointed an attorney, Peter
Christian Smythe, to represent Movant on appeal. CR ECF No. 61.
Smythe filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011), and
was allowed to withdraw. The United States Court of Appeals for the
Fifth Circuit concurred with counsel that the appeal presented no
nonfrivolous issue for review and affirmed the judgment. United States
v. Malik, No. 23-10610, 2024 WL 913372 (5th Cir. Mar. 4, 2024). His
petition for writ of certiorari was denied. Malik v. United States, 145 S.
Ct. 329 (2024).
GROUNDS OF THE MOTION
Movant sets forth two grounds in support of his motion, both alleging
that he received ineffective assistance of counsel. ECF No.3 1.
3 The “ECF No. __” reference is to the number of the item on the docket in this civil
action.
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APPLICABLE LEGAL STANDARDS
A. § 2255
After conviction and exhaustion, or waiver, of any right to appeal,
courts are entitled to presume that a defendant stands fairly and finally
convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United
States v. Shaid, 937 F.2d 228, 231–32 (5th Cir. 1991). A defendant can
challenge his conviction or sentence after it is presumed final on issues
of constitutional or jurisdictional magnitude only and may not raise an
issue for the first time on collateral review without showing both cause
for his procedural default and “actual prejudice” resulting from the
errors. Shaid, 937 F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial errors. It
is reserved for transgressions of constitutional rights and other narrow
injuries that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice. United States v.
Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words,
a writ of habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 U.S. 333, 345 (1974); United States v.
Placente, 81 F.3d 555, 558 (5th Cir. 1996). Further, if issues “are raised
and considered on direct appeal, a defendant is thereafter precluded
from urging the same issues in a later collateral attack.” Moore v. United
States, 598 F.2d 439, 441 (5th Cir. 1979) (citing Buckelew v. United
States, 575 F.2d 515, 517–18 (5th Cir. 1978)).
B. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a movant
must 	show 	that 	(1) 	counsel’s 	performance 	fell 	below 	an 	objective
standard of reasonableness and (2) there is a reasonable probability
that, 	but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceedings would have been different. Strickland v. Washington, 466
U.S. 668, 688, 694 (1984). “[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697; see also United States v. Stewart, 207 F.3d
750, 751 (5th Cir. 2000). “The likelihood of a different result must be
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substantial, not just conceivable,” Harrington v. Richter, 562 U.S. 86,
112 	(2011), 	and 	a 	movant 	must 	prove 	that 	counsel’s 	errors 	“so
undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at
686). Judicial scrutiny of this type of claim must be highly deferential
and 	the 	defendant must overcome 	a 	strong 	presumption 	that his
counsel’s conduct falls within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689. Simply making conclusory
allegations of deficient performance and prejudice is not sufficient to
meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.
2000).
ANALYSIS
In his first ground, Movant alleges that counsel rendered ineffective
assistance during the plea process, but the facts supporting the ground
all relate to sentencing. ECF No. 1 at 4, 18–21.4 Movant’s complaint is
that counsel failed to adequately investigate the losses attributed to him
in the addendum to the PSR and to hire a forensic accountant or data
analyst to review the government’s loss computations. In sum, counsel
did 	not “personally 	conduct or request a 	detailed 	analysis 	of 	the
underlying data.” Id. at 18.
The record reflects that counsel did respond to the addendum,
relating exactly what had transpired and noting his “ethical duties to
review in-house, unredacted information” kept by the government in
order to advise Movant of the changes, explain the effect, and discuss
strategies with him. CR ECF No. 32. Counsel represented that he had
accomplished 	those 	goals5 	and 	sought 	leave 	to 	file 	a 	sentencing
memorandum 	and 	motion 	for downward 	variance, 	id., 	which 	was
4 The page number references to the motion are to “Page __ of 43” reflected at the top
right portion of the document on the Court’s electronic filing system.
5 The Court has no reason to believe otherwise. Movant’s conclusory allegations
regarding his own review of the evidence do not change the Court’s opinion. See ECF
No. 1 at 22–24. Nor do they entitle him to relief, Miller v. Johnson, 200 F.3d 274, 282
(5th Cir. 2000), much less an evidentiary hearing. See United States v. Reed, 719 F.3d
369, 373 (5th Cir. 2013) (movant not entitled to evidentiary hearing unless he presents
independent indicia of the likely merit of his allegations).
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granted. CR ECF No. 33. The sentencing memorandum and motion
candidly explained from Movant’s perspective that the government had
continued its investigation after he entered into the plea agreement with
the result that he faced a much more serious sentence than he believed
at the time he would face. CR ECF No. 34. To the greatest extent
possible without compromising Movant’s acceptance of responsibility,
counsel explained why he believed the government had violated the plea
agreement and the Court’s orders regarding disclosure of information
and requested that the loss amount be capped at the amount disclosed
prior to the plea agreement. Id. He also urged a downward variance. Id.
The government responded, noting that it had not entered into any
agreement as to loss amount and that Movant’s fraud was so extensive
that it took months to sort out. CR ECF No. 35. Counsel argued the loss
amount and the organizer/leader enhancement at sentencing and did
not prevail. CR ECF No. 50. That he did not prevail does not mean that
Movant 	received 	ineffective 	assistance 	of 	counsel. 	Youngblood 	v.
Maggio, 696 F.2d 407, 410 (5th Cir. 1983). As the Court recognized,
there was an “abundant preponderance of the evidence” that Movant
was the leader organizer of criminal activity that resulted in a $4 million
loss. CR ECF No. 50 at 23.
To the extent Movant alleges that counsel failed to investigate, he
has not made a specific, affirmative showing of what the missing
evidence or testimony would have been or how it would have affected
the outcome. Trottie v. Stephens, 720 F.3d 231, 243 (5th Cir. 2013);
Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). In fact, there is
no reason to believe that any different evidence or argument would have
affected the outcome. Any objection that Movant should not have been
held accountable for intended loss would have been frivolous. See ECF
No. 5 at 13–14. Again, as the Court noted, there was abundant evidence
to support the loss amount and Movant’s role in the fraud.
In his second ground, Movant alleges that he received ineffective
assistance on appeal because counsel filed an Anders brief. ECF No. 1
at 5. He claims to have “brought up valid issues for counsel to pursue”
but does not identify any of them. Id. To prevail on this ground, he was
required to show that counsel failed to present solid, meritorious
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arguments based on directly controlling precedent and that, as a result,
he was prejudiced. United States v. Williamson, 183 F.3d 458, 462–63
(5th Cir. 1999). He has not done so.
The 	filing 	of 	an 	Anders 	brief 	does 	not 	constitute 	ineffective
assistance; rather, an attorney is under an ethical obligation to refuse
to prosecute a frivolous appeal and to seek to withdraw if he finds the
case to be wholly frivolous. Anders, 386 U.S. at 744; White v. United
States, 23 F. App’x 570, 572 (7th Cir. 2001). That is what counsel did
and the Fifth Circuit concurred that there were no nonfrivolous issues
to review. Malik, 2024 WL 913372, at *1.
CONCLUSION
For the reasons discussed, Movant’s motion is DENIED.
Further, for the reasons discussed herein, pursuant to 28 U.S.C.
§ 2553(c), a certificate of appealability is DENIED.
SO ORDERED on this 2nd day of April 2026.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
REGINALEA KEMP ,
Plaintiff,
v. 	No. 4:23-cv-00841-P
REGIONS BANK ET AL .,
Defendants.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Leave to File
Second Amended Complaint. ECF No. 18. Having considered the Motion
and applicable docket entries, the Court GRANTS the Motion.
SO ORDERED on this 18th day of September 2023.
______________________________________________
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
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