Obute v. United States of America Do not docket in this case. File only in (4:21-cr-602-1).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANTHONY OBUTE,
(BOP# 02891-506)
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
§
§
§
§
§ 	CIVIL ACTION NO. H-25-3815
§ 	CRIMINAL ACTION NO. H-21-602
§
§
§
§
MEMORANDUM OPINION AND ORDER
Pending 	before the 	Court 	is 	petitioner Anthony 	Obute's 	motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody. (Dkt. 91). The United States filed a response in opposition to the motion.
(Dkt. 94). 	Obute filed a reply. 	(Dkt. 97): 	Having considered the motion, the
response and reply, the record, the Court's own recollection of the proceedings, and
the applicable law, the Court determines that Obute's motion should be denied
without a hearing for the reasons explained below.
I. 	BACKGROUND
In December 2021, a federal grand jury returned an indictment charging Obute
whh two counts of aiding and abetting the unlawful distribution and dispensing of
controlled substances. 	(Dkt. 	18). 	Attorney Richard Kuniansky was 	initially
United States District Court
Southern District of Texas
ENTERED
June 03, 2026
Nathan Ochsner, Clerk
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appointed to represent Obute. (Dkt. 7). The next day, Obute retained Attorney Guy
Lee Womack, and he was substituted as counsel. 	(Dkt. 9). 	Jury trial was set for
February 22, 2022. (Dkt. 22).
On January 30, 2022, Womack filed an unopposed motion to continue trial.
(Dkt. 31). 	The motion was granted, and trial was reset for March 21, 2022. 	(Dkt.
32).
On February 	18, 	2022, 	Attorney Bassey Otu Akpaffiong moved to be
substituted as counsel in place of Womack. (Dkt. 35). The motion was granted on
February 22, 2022. 	(Dkt. 36). 	Akpaffiong then filed a second motion to continue
trial, which was granted. 	(Dkt. 37). Trial was reset to June 6, 2022. 	(Dkt. 38). In
May 2022, Akpaffiong filed a third motion to continue trial, which was granted.
(Dkts. 39, 40). Trial was reset to August 15, 2022. (Dkt. 40).
On July 26, 2022, Akpaffiong filed a fourth motion to continue trial. 	(Dkt.
42). Although the motion was unopposed, the Court denied it, leaving trial set for
August 15. (Dkt. 43).
On August 2, 2022, Attorney Peyton Zimmerman Peebles, III, appeared as
co-counsel for Obute. (Dkt. 44). The same day, at the parties' request, the Court set
a rearraignment hearing for August 4, 2022. (Dkt. 45).
At the start of the hearing, Akpaffiong told the Court that Obute had had a
change of heart and did not want to enter a guilty plea at that time. 	(Dkt. 86, p. 3).
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The Court responded that the hearing time would then instead be used as a pretrial
conference for the August 15 jury trial. 	(Id.). 	When the Court asked about the
exchange of evidence and exhibits, Akpaffiong stated that he had not yet provided
defense evidence to the Government because "we did not assume we were going to
trial on this matter." 	(Id. at 4). 	The Court noted thatthere was a trial date set and
that the exchange of evidence and exhibits was required by the scheduling order.
(Id. at 4-5). The Court then told Obute that the Court was not upset with him, that
he had an absolute right to plead not guilty, and he had the right to go to trial. 	(Id.
at 5). 	But the Court also pointed out that any agreements Obute had with the
Government about the charges or any aspect of his sentence would go away if he
went to trial. 	(Id.).
Obute then personally addressed the Court, stating that he wanted more time
to discuss the case with counsel. (Id. at 6). He stated that his attorney-apparently
referencing Peebles-"just came into the case about six weeks ago" and that he
needed "time to set down with him." 	(Id.). 	When the Court asked how long
Akpaffiong had been on the case, Obute responded that it had been about three
months-which is demonstrably untrue as evidenced by the record. (Id.). Based on
that discussion, the Court granted a recess so that Obute could speak further with
counsel. 	The Court also stated that when the hearing resumed, they would either
have a plea hearing or a pretrial conference. (Id. at 6-7).
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Before the recess began, the prosecutor stated that the current plea offer was
the Government's "absolute best deal" and that if a plea was not entered at that
hearing, any future plea would be to the full indictment. 	(Id. at 7). The prosecutor
, noted that the indictment contained two counts, each of which carried a twenty-year
statutory maximum sentence. 	(Id.). 	The Court added that those sentences could be
ordered to run consecutively and also noted that there is no longer parole in the
federal court system. (Id. at 7-8). The Court then took a twenty-minute recess. (Id.
at 9).
When the hearing reconvened, Akpaffiong told the Court that Obute was
going to accept the plea agreement and enter a guilty plea. 	(Id.). 	The Court placed
Obute under oath. 	(Id. at 10). 	While under oath, Obute affirmed that he had had
sufficient time to consult with counsel. (Id.). He affirmed that he was satisfied with
his attorneys. (Id. at 11 ). Both Akpaffiong and Attorney Peebles affirmed that they
had had sufficient time to investigate the law and the facts ofthe case. 	(Id.). 	They
both also 	affirmed that Obute understood the nature 	of the 	charges and had
cooperated with them. (Id.).
Obute affirmed that he had received and reviewed a copy of the indictment.
(Id. at 12). The Court reviewed the elements of the offense and told Obute that each
count carried a penalty of "not more than 20 years imprisonment, a minimum of
three years supervised release after any imprisonment, a fine of not more than $1
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million and a special assessment of $100 per count of conviction." 	(Id.). 	Obute
affirmed that he understood the nature of the charges and the possible penalties.
(Id.). 	The Court then reviewed Obute's right to plead not guilty, along with the
rights he would have at trial that would be waived by entering a plea. (Id. at 12-13).
The Court then addressed the plea agreement. 	(Id. at 14). 	The prosecutor
stated that the plea agreement included a waiver of the right to appeal except as to
the ineffective assistance of counsel. 	(Id. at 14-15). 	Obute affirmed that he had
talked with counsel about the Sentencing Guidelines and how they might apply to
his case. 	(Id. 	at 15). 	He affirmed that he understood that the Court could not
determine a sentence until after the presentence report had been completed. 	(Id. at
15-16). He affirmed that he understood that he would have the right to challenge
the facts included in the presentence report. 	(Id.). 	He also affirmed that he
understood that the Court had the authority to impose a sentence more or less severe
than that recommended by the Guidelines. 	(Id.).
The prosecutor stated that the plea agreement included the potential for a
sentence reduction based on substantial assistance, as well as the extra point for
timely pleading. 	(Id. at 16-17). 	The parties agreed on the appropriate converted
drug weight. (Id. at 17). They agreed to the application of a two-level enhancement
for a leadership role and a two-level enhancement for abuse of trust. 	(Id.). 	The
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Government also agreed to recommend a sentence at the low end of the guidelines
range. 	(Id. at 17-18).
Obute 	affirmed that he understood all 	of these 	prov1s10ns 	of the plea
agreement. (Id. at 18). He denied that anyone had made him any promises regarding
his sentence to obtain his guilty plea. 	(Id.). 	He denied that anyone had threatened,
coerced, or forced him to plead guilty. 	(Id.). 	He affirmed that he understood that
the Court was free to assess any legal punishment regardless of the Government's
recommendation. 	(Id. at 18-19).
The prosecutor then presented the factual basis for the plea. 	(Id. at 19-21).
Obute affirmed that the facts tecited by the prosecutor were true and that he had
intended to commit the acts described. (Id. at 21 ). The Court then asked Obute how
he wanted to plead to the one count, and he stated, "I plead guilty." 	(Id. at 22).
Obute affirmed that he had read and understood the plea agreement. 	(Id.). 	He then
signed the plea agreement in open court. 	(Id.). 	The Court found Obute's plea to be
knowing and voluntary, it accepted the guilty plea, and it set the matter off for
sentencing. 	(Id.).
As to the plea agreement itself, it contains the following provisions relevant
to Obute's current claims:
2. 	The statutory maximum penalty for each violation of Title
21, United States Code, Section 841, is a term of imprisonment of not
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more than twenty years and a fine of not more than $1,000,000, or both;
full restitution, if applicable; and forfeiture of assets as outlined below.
10. 	In agreeing to these waivers· [of appeal and collateral
attack], Defendant is aware that a sentence has not yet been determined
by the Court. Defendant is also aware that any estimate of the possible
sentencing range under the sentencing guidelines that he may have
received from his counsel, the United States, or the Probation Office, is
a prediction and not a promise, did not induce his guilty plea, and is
not binding on the United States, the Probation Office, or the Court.
The United 	States 	does 	not make 	any promise or representation
concerning what sentence Defendant will receive. 	Defendant further
understands and agrees that the United States Sentencing Guidelines
are "effectively advisory" to the Court. 	See United States v. Booker,
543 	U.S. 	220 	(2005). 	Accordingly, Defendant understands that,
although the Court must consult the Sentencing Guidelines and must
take them Into account when sentencing Defendant, the Court is not
bound to follow the Sentencing Guidelines nor sentence Defendant
within the calculated guideline range.
16. 	The United States and Defendant agree to recommend to
the 	Court the 	following 	about the 	application 	of the 	Sentencing
Guidelines to Defendant's Guidelines range, based on the factual basis
for the guilty plea outlined in Paragraph 18:
(c) 	Defendant 	and 	the 	United 	States 	agree 	to
recommend to the Court that a two-level enhancement applies under
Section 3Bl.3, because Defendant abused a position of trust or special
skill;
(d) 	Defendant and the United States agree that a two-
level 	enhancement 	applies 	under 	Section 	3B 1.1 (c), .· because 	the
Defendant was an organizer, leader, manager, or supervisor of criminal
activity, other than as described in Section 3Bl.l(a) or (b);
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25. 	Defendant 	stipulates 	and 	agrees 	that 	the 	Defendant
obtained at least $4,000,000.00 from the criminal offense in this case
and that the factual basis for his guilty plea in this case supports the
forfeiture of at least $4,000,000.00. 	Defendant stipulates and admits
that one or more of the conditions set forth in Title 21, United States
Code, Section 853(p ), exists. 	Defendant agrees to forfeit any of his
property in substitution, up to a total forfeiture 	of $4,000,000.00.
Defendant agrees to the imposition of a personal money judgment in
that amount.
(Dkt 48, pp. 2, 5-6, 13) (emphasis in original). Obute also signed an addendum to
the plea agreement, which states as follows:
I have consulted with my attorneys and fully understand all my
rights with respect to the Indictment against me. 	My attorneys have
fully explained, and I understand, all my rights with respect to the
provisions of the United States Sentencing Commission's Guidelines
Manual that may apply in my case. I have read and carefully reviewed
every part of this Plea Agreement with my attorney. I understand this
Plea Agreement, and I voluntarily agree to its terms.
(Id. at 17).
On April 3, 2023, the Court sentenced Obute to a bottom-of-the-Guidelines
sentence of 210 months in prison followed by three years of supervised release and
a special assessment of $100. 	(Dkt. 65). This sentence was based on a Guidelines
range that included a two-level increase for maintaining premises for the purpose of
manufacturing 	or 	distributing 	controlled 	substances 	under 	§ 2Dl.l(b)(12) 	in
addition to the increases and decreases included in the plea agreement. (Dkt. 58, p.
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8). 	Counsel objected to this two-level increase, both in writing and again at the
sentencing hearing, but the Court overruled the objections. 	(Dkts. 56, p. 2; 84, pp.
3--4). 	The Court also entered a forfeiture judgment of $(000,000. 	(Dkt. 67).
Judgment was entered on April 25, 2023. (Dkt. 74).
In February 2024, the Court of Appeals for the Fifth Circuit affirmed Obute's
conviction and sentence. 	See United States v Obute, No. 23-20143, 2024 WL
2349290 (5th Cir. Feb. 15, 2024). Obute filed a timely petition for writ of certiorari
to the United States Supreme Court, which was denied on October 7, 2024. 	See
Obute v. United States, 145 S. Ct. 203 (2024).
On August 22, 2025, Obute, proceeding prose, filed this motion under
§ 2255, raising the following claims:
1. 	Ineffective assistance of counsel for:
a. 	failing to request a continuance at the rearraignment hearing;
b. 	being unprepared for trial;
c. 	failing to explain the consequences of waiving appellate rights;
d. 	providing misadvice concerning the consequences of the plea;
e. 	providing misadvice concerning the sentencing exposure.
2. 	Cumulative error.
(Dkt. 91). He supported his motion with a sworn declaration, in which he avers that
he did not fully understand the charges against him, had not reviewed the evidence
with counsel, had not discussed possible defenses, and had not had the opportunity
to make an informed choice about whether to go to trial. 	(Id. at 42). He avers that
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counsel had only been in the case for about six weeks, and he agreed to plead guilty
under the pressure of believing that counsel was unprepared for trial. 	(Id.). 	He
asserts that he did not understand that he was giving up his right to appeal by signing
the plea agreement. 	(Id.). 	He alleges that he did not understand that sentencing
enhancements could be applied that were not discussed in the plea agreement. 	(Id.
at 43). 	He swears that he believed that the plea agreement·"set a clear sentencing
outcome" and that he did not know that he was exposed to such a lengthy sentence.
(Id.). 	He also swears that he did not know that the government would seek a
$4,000,000 forfeiture judgment against him. 	(Id.). 	He contends that his plea was
based on a misunderstanding of his sentence and that he had been led to believe that
he was facing much less time. (Id.). He avers that he would not have pleaded guilty
had he been properly advised. 	(Id. at 44 ). 	Other than this sworn declaration, Obute
offers no evidence to support his claims.
The Court ordered the Govemmentto respond to Obute's motion, (Dkt. 93),
and the Government filed a response in opposition, along with multiple exhibits.
(Dkt. 94). Obute filed a timely reply. (Dkt. 97).
II. 	LEGAL STANDARD
"Relief under 	28 	U.S.C.A. 	§ 2255 	is 	reserved 	for 	transgressions 	of
constitutional rights and for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a complete miscarriage of
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justice." 	United States v. Mimms, 43 F.3d 217, 219 (5th Cir. 1995) (per curiam)
(quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam)).
In keeping with this limited scope, a petitioner seeking relief under § 2255 must
establish that "the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
But even constitutional errors may not be raised for the first time in a§ 2255
motion unless the petitioner shows both cause for the procedural default and actual
prejudice resulting from the alleged error. 	See Bousley v. United States, 523 U.S.
614, 622 (1998); United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). 	To
prove "cause," the petitioner must "show that 'some objective factor external to the
defense' prevented him from raising on direct appeal the claim he now advances."
United States v. 	Guerra, 94 F.3d 989, 993 (5th Cir. 1996) (quoting Romero v.
Collins, 961 F.2d 1181, 1183 (5th Cir. 1992) (per curiam)); see also United States v.
Cruise, Civil No. H-25-2169, 2026 WL 1052851, *17 (S.D. Tex. Apr. 16, 2026). To
prove "actual prejudice," the petitioner must show that he has suffered an actual and
substantial disadvantage as a result of the alleged error. See United States v. Frady,
456 U.S. 152, 170 (1982). In the context of a guilty plea, this requires the petitioner
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to show that but for the error, he would not have pleaded guilty and would have
instead insisted on going to trial. See Guerra, 94 F.3d at 994.
The cause"'.and-prejudice standard is a "significantly higher hurdle" than the
plain error standard required on direct appeal. 	Frady, 456 U.S. at 166. This higher
standard is appropriate because once the opportunity for direct appeal has been
exhausted, courts are entitled to presume the petitioner was. fairly convicted. 	Id. at
164; see also United States v. 	Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998)
(presuming defendant to be fairly and finally convicted after direct appeal).
III. 	DISCUSSION
Obute's § 2255 motion raises five claims of ineffective assistance of trial
counsel. 	Ineffective assistance of counsel, if shown, satisfies the requisite cause-
and-prejudice standard. 	See United States v. Acklen, 47 F.3d 739, 742 (5th Cir.
1995). 	Such claims are therefore properly raised for the first time in a § 2255
motion. 	United States v. Shaid, 937 F.2d 228,232 (5th Cir. 1991) (en bane).
Claims of ineffective assistance of counsel, whether at trial or on direct appeal,
are governed by the two-prong test established in Strickland v. Washington, 466 U.S.
668 (1984). 	Strickland requires· a § 2255 petitioner to show both that counsel's
performance was 	deficient and that the deficient performance prejudiced the
defense. 	Id. at 687. 	"Unless a defendant makes both showings, it cannot be said
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that the conviction . . . resulted from a breakdown in the adversary process that
renders the result unreliable." Id.
To establish the deficient-performance prong of Strickland, the petitioner
must 	show 	that 	counsel's 	performance 	fell 	below 	an 	objective 	standard 	of
reasonableness. 	Id. at 687-88. 	To meet this standard, counsel's error must be "so
serious that counsel was not functioning as the 'counsel' guaranteed the defendant
by the Sixth Amendment." 	Id. at 687; see also Buck v. Davis, 580 U.S. 100, 118-
195 (2017) (reaffirming that "[i]t is only when the lawyer's errors were 'so serious
that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth
Amendment' that Strickland's 	first prong is 	satisfied") (citation omitted). 	In
addition, because of the risk that hindsight bias will cloud _a court's review of
counsel's trial strategy, "a court must indulge a strong presumption that counsel's •
conduct falls within the wide range of reasonable professional assistance." 	United
States v. Fields, 761 F.3d 443, 453 (5th Cir. 2014) (quoting Strickland, 466 U.S. at
689). "A conscious and informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel unless it is so ill chosen
that it permeates the entire trial with obvious unfairness." 	Cotton v. Cockrell, 343
F.3d 746, 752-53 (5th Cir. 2003) (quoting United States v. Jones, 287 F.3d 325, 331
(5th Cir. 2002)). 	Therefore, "[s]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
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strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation." Fields, 761 F.3d at 454 (quoting Strickland, 466 U.S. at 690-91).
In 	addition 	to 	showing 	deficient 	performance, 	the 	petitioner 	alleging
ineffective assistance of counsel must also show that he was prejudiced by that
•deficient performance. See Strickland, 466 U.S. at 687. "This requires showirig that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." 	Id. 	In essence, a petitioner "must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. 	A reasonable probability is a probability
sufficient to undermine confidence in the outcome." 	Id. at 694. 	"[T]he question is
not whether a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been established if
counsel acted differently." Harrington v. Richter, 562 U.S. 86, 111 (2011 ). Instead,
"[t]he likelihood of a different result must be substantial, not just conceivable." 	Id.
at 112.
In the context of a guilty plea, prejudice occurs if there is a reasonable
probability that, but for counsel's deficiencies, the defendant "would not have
pleaded guilty and would have insisted on going to trial." 	United States v. Valdez,
973 F.3d 396, 402-03 (5th Cir. 2020) (quoting Hill v. Lockhart, 474 U.S. 52, 59
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(1985)). 	When considering the validity of a guilty plea, courts consider "whether
the plea represents a voluntary and intelligent choice among the alternative courses
of action open to the defendant." 	Lockhart, 474 U.S. at 56 (cleaned up). In doing
so, "[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 defici~ncies.
Judges 	should 	instead 	look 	to 	contemporaneous 	evidence 	to 	substantiate 	a
defendant's expressed preferences." Lee v. United States, 582 U.S. 357, 369 (2017).
Factors relevant to determining whether a defendant would have refused to plead
guilty and would have gone to trial include "the risks [he] would have faced at trial,"
"his 'representations about his desire to retract his plea,"' and "the district court's
admonishments." 	Valdez, 973 F.3d at 403 (quoting United States v. Batamula, 823
F.3d 237,240 n.4 (5th Cir. 2016) (en bane)).
A. 	Failure to Request a Continuance (Claim l(a))
Obute first contends that trial counsel provided ineffective assistance by •
failing to request a continuance at the rearraignment hearing when Obute expressed
concerns that he had not had sufficient time to speak with his counsel. 	Obute fails
to show either deficient performance or prejudice.
In general, counsel does not provide ineffective assistance by failing to make
futile motions or raise futile objections. 	See, e.g., Roberts v. Thaler, 681 F.3d 597,
612 (5th Cir. 2012); Koch v Puckett, 907 F.2d 524, 527 (5th Cir. 1990). 	"An
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attorney's failure to raise a meritless argument thus cannot form the basis of a
successful 	ineffective 	assistance 	of counsel 	claim 	because 	the 	result 	of the
proceeding would not have been different had the attorney raised the issue." 	United
States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
It is apparent from the record as a whole that any motion for continuance
counsel may have made at the rearraignment hearing would have been denied. The
Court had denied Obute's fourth motion to continue the trial only days before the
hearing, even though the motion was unopposed. And the Court made it clear at the
start of the hearing that trial was not going to be reset again. The Court stated in no
uncertain terms that ifObute elected not to plead guilty, the Court would go forward
with a pretrial conference that day and the trial previously scheduled for August 15.
Under these circumstances, counsel could have reasonably determined that it would
be better strategy not to seek another continuance. 	Further, because it is apparent
that any motion for a continuance would have been denied, Obute cannot show that
the outcome of the proceedings would have been different but for counsel's failure
to request a continuance.
Obute's claim that counsel provided ineffective assistance by failing to make
a motion for continuance that would have inevitably been denied is meritless. He is
not entitled to relief on this basis, and this claim is denied.
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B. 	Lack of Trial Preparation(Claim (lb))
Obute next contends that trial counsel provided ineffective assistance by being
unprepared to go to trial. This claim is refuted by the record for two reasons.
First, Obute's interpretation of counsel's statement is not supported by the
record. 	He bases this claim on Akpaffiong telling the Court that he had not yet
provided evidence and exhibits to the Government because "we did not assume we
were going to trial on this matter." 	Obute contends that this statement shows that
counsel was not prepared to go to trial. 	However, read in context, it is clear that
Akpaffiong's statement was an explanation for his failure to comply with the Court's
scheduling order rather than a comment on his trial preparation. That counsel were
not expecting to go to trial does not mean that they were not prepared to go to trial.
Obute's post hoc interpretation equating a lack of expectation with a lack of
preparation has no basis in the record and is not indicative of deficient performance
by counsel.
Second, Obute offers no credible evidence of ensuing prejudice. He contends
that he was compelled to enter a guilty plea involuntarily rather than face the
prospect of trial with unprepared counsel. He contends that counsel had only been
in the case for six weeks and had not had time to become prepared. But the record
shows that Akpaffiong had been counsel of record for almost six months at the time
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of the hearing. Obute's declaration that directly conflicts with clear record evidence
is not credible.
Further, Obute did not state a desire to· go to trial at the rearraignment hearing;
instead, he only requested additional time to discuss the plea offer with counsel. In
addition, after a recess to talk with counsel, admonishments from the Court, and a
factual basis presented by the Government, Obute affirmatively stated that the
factual 	basis 	was 	true 	and 	that 	he 	wished 	to 	enter 	a 	guilty 	plea. 	These
contemporaneous statements contradict his current post hoc assertions that he did
not want to enter a guilty plea and instead wanted to proceed to trial. 	His current
self-serving declaration does not provide credible evidence of prejudice sufficient to
warrant an evidentiary hearing. 	See, e.g., Lee, 582 U.S. at 369 (noting that courts
should not upset a plea based on post hoc assertions from a defendant that conflict
with evidence contemporaneous with entry of the plea); United States v Arledge, 597
F. App'x 757, 759 (5th Cir. 2015) (per curiam) (noting that a district court may
consider its own knowledge of the record and "clear contradictions between an
affidavit and other record documents to determine whether the § 225 5 movant is
entitled to 'no relief").
The record contemporaneous with Obute's plea does not support his claim
that counsel was unprepared to go to trial, nor does it support his current assertion
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that his plea was involuntary. He is not entitled to relief on this basis, and this claim
is denied.
C. 	Failure to Explain Consequences of Waiver of Rights {Claim l{c}}
Obute next contends that trial counsel provided ineffective assistance by
failing to explain the scope of the plea and collateral-attack waivers in the plea
agreement. 	Specifically, he contends that trial counsel failed to 	explain that
enhancements for maintaining a premises or abusing a position of trust could be
imposed at sentencing and that any challenge to those enhancements would be
waived. This claim is likewise refuted by the record of the rearraignment hearing.
During the plea colloquy, which occurred after a recess to provide Obute with
additional time to consult with his attorneys, he affirmed mider oath that he had had
sufficient time to consult with his attorneys, that .they had discussed how the
Sentencing Guidelines might apply to his case,. that he had read and understood the
plea agreement. 	The plea agreement, which Obute swore that he had read and
understood, specifically states that the parties agreed that a two-level enhancement
for abusing a position of trust would be included. 	Moreover, the prosecutor
specifically referenced this enhancement when explaining the plea agreement to the
Court during the plea hearing. Obute's current contention that he was unaware that
this enhancement could be applied is simply not credible in light of his prior sworn
testimony and the record as a whole.
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As to the enhancement for maintaining a premises for drug distribution, the
record does not show that it was specifically discussed either in the plea agreement
or at the rearraignment hearing. But Obute was advised in both the plea agreement
and at the hearing that no sentence could be determined until the presentence
investigation was completed, that the Guidelines themselves were advisory, and that
his 	sentence 	would 	be 	completely 	within 	the 	discretion 	of the 	Court 	after
consideration of the Guidelines. He was specifically advised that the sentence could
be more or less severe that what was calculated under the Guidelines. Despite these
admonishments, Obute entered his plea and swore that he was not relying on any
promises or assertions about what sentence he might receive. His current assertion
that he would not have entered the plea had he known that one potential enhancement
might be determined to 	apply contradicts the contemporaneous record and is
therefore not credible. See Lee, 582 U.S. at 369 (courts should not upset a plea based
on post hoc assertions from a defendant that conflict with evidence contemporaneous
with entry of the plea).
The record contemporaneous with Obute's plea does not support his claim
that his plea was involuntary due to a lack of understanding of the potential
sentencing enhancements. He is not entitled to relief on this basis, and this claim is
denied.
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D. 	Failure to Explain Consequences of the Plea (Claim l(d))
Obute next contends that counsel provided ineffective assistance by failing to
explain the consequences 	of his 	guilty plea, 	including failing 	to 	explain the
application of the sentencing enhancement for maintaining a premise and for a
leadership role, failing to explain that the Government was seeking a $4,000,000
personal money judgment as part of the forfeiture, 	and failing to give him a
"meaningful warning about the realistic sentencing exposure."
As with his other claims, Obute's allegations in this claim are refuted by the
record. The claim concerning the sentencing enhancement for maintaining a premise
was discussed in Claim 1(c) above. 	As to the claims concerning the leadership
enhancement and the forfeiture judgment, the plea agreement itself, which Obute
swore he had read and understood, specifically includes clear provisions concerning
them. 	His current affidavit, which baldly repudiates his sworn testimony at the
rearraignment hearing, is not sufficient to support either an evidentiary hearing or
relief. 	See United States v. McClinton, 782 F. App'x 312,314 (5th Cir. 2019) (per
curiam) (''post hoc assertions from a defendant about how he would have pleaded
but for his attorney's deficiencies" will not support relief under§ 2255 and instead
"'contemporaneous evidence' is the key"); see also United States v. Crain, 877 F.3d
637,650 (5th Cir. 2017) (explaining that "self-servingpost hoc assertions about how
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[the defendant] would have pled" do not negate the contemporaneous comments at
the plea hearing).
And as to Obute's contention that he was not given a "meaningful warning"
about his sentence exposure, the record again shows that he was advised of the
statutory maximum, advised that the Guidelines would determine a sentencing
range, and advised that the Court could impose any sentence up to the legal
maximum after reviewing the Guidelines calculations. 	He specifically attested in
signing the plea agreement that he understood how the Guidelines might apply and
that any estimates he may have received about his potential sentence did not induce
his guilty plea.
Obute does not allege any credible facts showing that he would not have
entered his guilty plea but for his attorney's alleged misadvice about his potential
sentence •because the contemporaneous evidence from the rearraignment hearing
conclusively negates his current assertions. 	He is not entitled to either relief or an
evidentiary hearing on this claim, and it will be denied.
E. 	Misrepresentation of Sentence Exposure (Claim l(e))
Obute next contends that his counsel provided ineffective assistance by failing
to correct alleged misrepresentations about the possible sentences made by the
prosecutor during the rearraignment hearing. The record again conclusively refutes
this claim.
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Obute points to the prosecutor's statement that if he did not accept the existing
plea agreement, the Government would not make a better offer. 	The prosecutor
stated that any future plea would have to be to both counts, each of which carried a
twenty-year statutory maximum sentence that the Court had discretion to run
consecutively. 	The Court also advised Obute that there is no parole in the federal
prison system.
While Obute characterizes these statements as coercive threats, they are not.
They are factually correct statements of the law. 	There were no misstatements for
counsel to correct, and counsel does not provide ineffective assistance by failing to
correct statements that are not, in fact, incorrect. Obute is not entitled to either relief
or an evidentiary hearing on this claim.
F. 	Cumulative Error {Claim 2)
Finally, Obute asserts that even if no single error was sufficient to show
prejudice, the Court should consider them together cumulatively. But "the Supreme
Court has never affirmatively adopted a cumulative error doctrine with respect to
ineffective assistance of counsel claims." Hill v. Davis, 781 F. App'x 277, 278 (5th
Cir. 2019) (per curiam). 	The cases cited by Obute as warranting relief based on
cumulative error did not involve claims of ineffective assistance of counsel. 	This
claim is without merit and will be denied.
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IV. 	CERTIFICATE OF APPEALABILITY
A certificate of appealability is required before Obute may appeal. 	See
Hallmarkv. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (both§ 2254 and§ 2255
require a certificate of appealability). 	"This is a jurisdictional prerequisite because
the COA statute mandates that '[u]nless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals.'" 	Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C. § 2253(c)(l)).
A certificate of appealability will not issue unless a defendant makes "a
substantial showing of the denial of a constitutional right." 	28 U.S.C. § 2253(c)(2) .
.This requires the petitioner to demonstrate "that reasonable jurists would find the
district court's 	assessment 	of the 	constitutional 	claims 	debatable 	or wrong."
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). 	The defendant must show "that reasonable jurists could debate
whether (or, for that matter, agree that) the [§ 2255 motion] should have been
resolved in a different manner or that the issues presented were 'adequate to deserve
encouragement to proceed further."' Miller-El, 537 U.S. at 336 (quoting Slack, 529
U.S. at 484). As to claims that a district court rejects solely on procedural grounds,
the defendant must show both that "jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
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procedural ruling." 	Slack, 529 U.S. at 484. 	A district court-may deny a certificate
of appealability on its own, without requiring further briefing or argument. See
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per curiam).
After carefully considering the record, the Court concludes that reasonable
jurists would not find the Court's determination of Obute's constitutional claims
either debatable or wrong. No certificate of appealability will therefore be issued.
V. 	CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1. 	Petitioner Anthony Obute's motion under 28 U.S.C. §-2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody, (Dkt. 91), is
DENIED.
2. 	Any other pending motions are DENIED as moot.
3. 	A certificate of appealability will not be issued.
3. 	This is a final judgment.
The Clerk will provide a copy of this Order to the parties.
SIGNED at Houston, Texas, on---~~-----"'------'' 2026.
DAVID HIT1NER
UNITED STATES DISTRICT ruDGE
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