Black v. USA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
EMILIO MARCO BLACK, 	§
§
Movant, 	§
§
V. 	§ 	NO. 4:25-CV-1089-O
§ 	(NO. 4:24-CR-279-O)
UNITED STATES OF AMERICA, 	§
§
Respondent. 	§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Emilio Marco Black under 28 U.S.C. ' 2255 to
vacate, set aside, or correct sentence by a person in federal custody. The Court, having considered
the motion, the response, the reply, the record, and applicable authorities, concludes that the
motion must be DENIED.
I. 	BACKGROUND
On October 29, 2024, Movant was named in an indictment charging him with possession
of 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). CR ECF No.1 11. On November 25, 2024, he
was named in a superseding information charging him with possession of a mixture and substance
containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). CR
ECF No. 16. Movant and his counsel signed a factual resume setting forth the maximum penalties
he faced, the elements of the offense charged by the superseding information, and the stipulated
facts establishing that he had committed the offense. CR ECF No. 18. They also signed a plea
1 The “CR ECF No. __” reference is to the number of the item on the docket in the underlying criminal case, No.
4:24-CR-279-O.
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agreement pursuant to which Movant agreed to plead guilty to the offense charged in the
superseding information and the government agreed not to bring any additional charges based on
the conduct underlying and related to the plea agreement. CR ECF No. 19. The plea agreement
also reflected that Movant understood the Court’s sentencing discretion; the plea was freely and
voluntarily made and not the result or force, threats, or promises except as set forth therein; Movant
waived his right to appeal or otherwise challenge his conviction and sentence except in certain
limited circumstances; and, Movant had thoroughly reviewed all legal and factual aspects of the
case with counsel and was fully satisfied with his counsel’s representation. Id.
On December 4, 2024, Movant appeared with counsel and testified under oath in open
court that: he had received, read, and understood the superseding information; he understood the
essential elements of the charge in the superseding information and he committed each of them;
he read, understood, and discussed the plea agreement (including the waiver of right to appeal)
with counsel before signing it; he voluntarily and of his own free will signed the plea agreement;
he understood the penalties he faced; he read, understood, and signed the factual resume and the
facts therein were true and correct; and, he was fully satisfied with the representation provided by
his attorney and the advice he received. CR ECF No. 48.
The probation officer prepared the presentence report (“PSR”), which reflected that
Movant’s base offense level was 32. CR ECF No. 27, ¶ 31. He received a two-level and a one-
level reduction for acceptance of responsibility. Id. ¶¶ 38, 39. Based on a total offense level of 29
and a criminal history category of III, Movant’s advisory guideline range was 108 to 135 months.
Id. ¶ 89.
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The Court sentenced Movant to a term of imprisonment of 120 months. CR ECF No. 35.
Movant appealed, CR ECF No. 37, despite having waived his right to do so. CR ECF No. 19, ¶ 14.
His counsel filed a motion for leave to withdraw and a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). The appeal was dismissed on Movant’s motion. United States v.
Black, No. 25-10458, 2025 WL 2542161 (5th Cir. Sept. 4, 2025).
II. 	GROUNDS OF THE MOTION
Movant purports to raise four grounds in support of his motion, although he does not state
what any of them are. ECF No.2 1 at 4, 5, 7, & 8.3 Instead, he simply references his memorandum
filed contemporaneously. Id. As best the Court can tell, all of Movant’s grounds concern alleged
ineffective assistance of counsel. ECF No. 2. Movant appears to complain that counsel provided
ineffective assistance in failing to: object to the PSR’s inclusion of status points, file a motion to
correct the drug conversion table, object to the drug quantity, file a motion to suppress, file a
motion for the exact stipulation of the drug amount, and attack the criminal complaint. Id.
III. 	APPLICABLE LEGAL STANDARDS
A. 	28 U.S.C. § 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
2 The “ECF No. __” reference is to the number of the item on the docket in this civil action.
3 The page number references to the motion are to “Page __ of 13” reflected at the top right portion of the document
on the Court’s electronic filing system.
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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 Aare 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, 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 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.
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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).
IV. 	ANALYSIS
As the government notes, Movant did not receive any status points because his criminal
history score was below seven. ECF No. 10 at 2. Moreover, no drug conversion was required
because the offense involved only cocaine. Id. Counsel cannot have provided ineffective assistance
in either of these respects. See United States v. Preston, 209 F.3d 783, 785 (5th Cir. 2000) (failure
to raise meritless claims is not ineffective); United States v. Kimler, 167 F.3d 889, 893 (5th Cir.
1999) (same).
The remainder of the memorandum is fatally vague and conclusory. Movant does not
explain what was wrong with the drug quantity calculation or what counsel should have done. He
fails to explain how anything counsel did or failed to do prejudiced him in any respect. In his reply,
he seems to argue that counsel rendered ineffective assistance in failing to file a sentencing
memorandum. ECF No. 11. He is mistaken; counsel filed a sentencing memorandum. CR ECF
No. 32. In any event, Movant fails to identify any particular issue that should have been raised and
would have changed the outcome. Conclusory allegations are not sufficient to meet the Strickland
test. Miller, 200 F.3d at 282.
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For all of the reasons discussed in the response, which the Court need not repeat here,
Movant could not have prevailed on any of his claims. ECF No. 10 at 8–13. The PSR amply
supports the determination of the drug quantity attributed to Movant. CR ECF No. 27. The Court
was entitled to rely on information provided by the confidential informant because that information
was reliable. United States v. Nava, 624 F.3d 226, 230–31 (5th Cir. 2010) (at sentencing, the court
may consider any evidence that bears sufficient indicia of reliability to support its probable
accuracy, even hearsay); United States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991) (district court
has wide discretion in evaluating the reliability of information and whether to consider it).
Movant’s plea was knowing, voluntary, and intelligent and he waived all nonjurisdictional defects
in entering into it. United States v. Palacios, 928 F.3d 450, 455 (5th Cir. 2019); United States v.
Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008). Movant has not shown in any event that a
meritorious motion to suppress could have been filed. See Kimmelman v. Morrison, 477 U.S. 365
(1986) (to establish ineffective assistance based on a Fourth Amendment claim a movant must
show that a meritorious motion to suppress could have been filed and that it would have affected
the outcome).
To the extent Movant references the failure to raise issues on appeal, ECF No. 2 at 6, he
overlooks that he waived the right to appeal. Even if he had not done so, he has not shown that any
meritorious issue existed. Counsel does not provide ineffective assistance in failing to raise
meritless arguments. Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). An attorney’s decision to
omit an argument on appeal rises to ineffectiveness only when directly controlling authority
reveals that the argument would likely have been successful. United States v. Williamson, 183 F.3d
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458, 463 (5th Cir. 1999). Directly controlling precedent is rare. Id., 183 F.3d at 463 n.7. Here,
Movant does not cite to any controlling authority.
V. 	CONCLUSION
For the reasons discussed herein, the relief sought in Movant’s motion is DENIED.
Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of
appealability is DENIED.
SO ORDERED on this 17th day of March, 2026.
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