Johnson v. United States of America

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Malik Johnson,
Petitioner,
v.
United States of America,
Respondent.
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Civil Action No. 4:25-cv-00389
Crim. Action No. 4:22-cr-00635
MEMORANDUM AND RECOMMENDATION
Malik Johnson filed a motion under 28 U.S.C. § 2255 to challenge his
conviction and sentence for multiple counts of bank robbery and brandishing a
firearm during and in relation to a crime of violence. Crim. Dkt. 65 (judgment);
Civ. Dkt. 9 (amended § 2255 motion); Crim. Dkt. 95 (same). He also applied to
proceed in forma pauperis (“IFP”). Civ. Dkt. 10; Crim. Dkt. 93. After carefully
reviewing 	Johnson’s 	motions, 	the 	record, 	and 	the 	applicable 	law, 	it 	is
recommended that his § 2255 motion be dismissed for failure to state a claim,
28 U.S.C. § 1915(e)(2)(B)(ii), and that his IFP application be denied as moot.
Background
In 2022, Johnson was indicted for committing five armed robberies of
federally insured banks. 	See Crim. Dkt. 14. 	Counts One, Three, Five, Seven,
and Nine charged him with bank robbery, 18 U.S.C. § 2113(a), (d), and Counts
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Two, Four, Six, Eight, and Ten charged him with brandishing a firearm during
and 	relation 	to 	a 	crime 	of 	violence, 	18 	U.S.C. 	§ 	924(c)(1)(A), 	i.e., 	the
corresponding bank robberies charged in the other counts. See id.
Pursuant to a plea agreement, Johnson pleaded guilty to Counts One
and Two, concerning a June 29, 2022 robbery of a First Convenience Bank and
related § 924(c) charge, Crim. Dkt. 14 at 1-2; to Counts Five and Six, the
September 	6, 	2022 	robbery 	of 	a 	different 	First 	Convenience 	Bank 	and
accompanying § 924(c) charge, id. at 3-4; and to Count Seven, an October 12,
2022 robbery of a Woodforest National Bank, id. at 4. 	See Crim. Dkt. 52.
During the rearraignment, the Court asked Johnson if he had “any other
agreement with the Government, other than what is set forth in [the] written
plea agreement[.]” Crim. Dkt. 76 at 14. Johnson responded, under oath, “No,
sir.” 	Id. 	The Court also asked Johnson if “anybody else made any kind of
promise [] or assurance of any kind in order to persuade [him] or induce [him]
to plead guilty ….” Id. at 14-15. Johnson answered, “No sir.” Id. at 15.
At the rearraignment, the Court also explained in detail the maximum
potential sentence that Johnson faced if he were convicted of Counts One, Two,
Five, Six, and Seven. 	See id. at 16-18. 	The Court explained that each count
“of bank robbery carries with it a maximum sentence of 25 years in prison, a
fine[,]” supervised release, and a special assessment. Id. at 16. And each count
for brandishing a firearm carries “a minimum sentence of seven years in
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prison, a maximum sentence of life in prison, consecutive to the punishment
provided for on the crime of violence,” a fine, supervised release, and a special
assessment. 	Id. 	at 	17. 	The 	Court 	warned 	that 	those 	sentences, 	when
combined, could total more than 80 years imprisonment. 	See id. 	Before
pleading 	guilty, 	Johnson 	attested 	that 	he 	understood 	those 	potential
consequences. Id. at 17-18.
Johnson was sentenced on August 9, 2024. 	Crim. Dkt. 78. 	He received
a total sentence of 246 months in prison: 78 months for each bank robbery
count (Counts One, Five, and Seven), running concurrently, and 84 months for
each § 924(c) firearms charge (Counts Two and Six), running consecutively.
See id. at 15. Although Johnson filed a notice of appeal, Crim. Dkt. 67, he later
dismissed the appeal, see Crim. Dkt. 82 (January 14, 2025 order of dismissal).
Meanwhile, Johnson filed a motion for relief under 28 U.S.C. § 2255,
Civ. Dkt. 1, which he was ordered to amend, Civ. Dkt. 8 (order); Civ. Dkt. 9
(amendment). His amended § 2255 motion asserts that the district court erred
by stacking the § 924(c) accounts and that his counsel was ineffective in two
respects. Civ. Dkt. 9 at 7. Johnson also filed an IFP application. Civ. Dkt. 10.
Legal standard
“[A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security 	therefor” upon a
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showing that “the person is unable to pay such fees or give security therefor.”
28 U.S.C. § 1915(a)(1). 	But the right to proceed in forma pauperis is not
absolute. 	“Under § 1915(e)(2)(B), the district court is required to dismiss an
IFP case ‘at any time’ if it determines that the case is ‘frivolous or malicious’
or ‘fails to state a claim on which relief may be granted.” 	Doe v. Charter
Commc’ns, L.L.C., 131 F.4th 323, 327 (5th Cir. 2025) (quoting 28 U.S.C.
§ 1915(e)(2)(B)(i), (ii)).
A complaint fails to state a claim upon which relief may be granted if it
alleges insufficient facts, when taken as true, to state a basis for relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
Pro se pleadings are liberally construed. 	Butler v. S. Porter, 999 F.3d
287, 292 (5th Cir. 2021) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam)). 	But “regardless of whether the plaintiff is proceeding pro se or
is 	represented 	by 	counsel, 	conclusory 	allegations 	or 	legal 	conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” 	Prescott v. UTMB Galveston Tex., 73 F.4th 315, 318 (5th Cir. 2023)
(quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)); see
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also Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per
curiam) (“[P]ro se plaintiffs must still plead factual allegations that raise the
right to relief above the speculative level.”).
Analysis
Johnson wishes to proceed in forma pauperis as he seeks relief under
28 U.S.C. § 2255. 	Civ. Dkt. 10. 	He contends that the district court erred by
stacking his firearm convictions under 18 U.S.C. § 924(c). Civ. Dkt. 9 at 7. In
addition, Johnson asserts that he received ineffective assistance of counsel
because his lawyer (1) did not object to the stacking and (2) “guaranteed” him
a shorter sentence if he pleaded guilty. See id.
Because Johnson’s firearm convictions were properly stacked, he cannot
show that his counsel wrongly failed to object to that stacking. 	Moreover,
Johnson has not adequately pleaded that his counsel guaranteed a specific
sentence or that any such alleged guarantee was prejudicial. Because Johnson
has not stated a cognizable basis for relief, even in his amended motion, this
Court should deny Johnson’s IFP application and dismiss his § 2255 motion.
I. 	Legal standard for relief under 28 U.S.C. § 2255
Section 2255 sharply curtails the district court’s authority to vacate,
modify, or correct a sentence. 	To obtain relief, a movant must show that (1)
the sentence violates the U.S. Constitution or other federal law; (2) the court
lacked jurisdiction to impose the sentence; (3) the sentence exceeded the
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statutory maximum; or (4) the sentence “is otherwise subject to collateral
attack ....” 	28 U.S.C. § 2255. 	“Relief under 28 U.S.C. § 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 justice.” 	United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992) (per curiam). 	“Other types of error may not be raised under
section 2255 unless the defendant demonstrates that the error could not have
been raised on direct appeal and, if condoned, would result in a complete
miscarriage of justice.” 	United States v. Cervantes, 132 F.3d 1106, 1109 (5th
Cir. 1998) (citation omitted). 	Ultimately, the movant bears the burden of
establishing his claims of error by a preponderance of the evidence. See Wright
v. United States, 624 F.2d 557, 558 (5th Cir. 1980).
II. 	Johnson’s firearms convictions were properly stacked.
Johnson was sentenced to 84 months imprisonment for both § 924(c)
counts, running consecutively to each other and to his 78-month sentence for
the three robbery counts. 	See Civ. Dkt. 9 at 7; Crim. Dkt. 65. He argues that
§ 403(a) of the First Step Act of 2018 (“FSA”) prohibits this type of stacking.
See Civ. Dkt. 9 at 7. That contention is foreclosed, as a matter of law.
Both before and after the FSA’s enactment, § 924(c) mandates that the
sentence 	run 	consecutively 	to 	any 	other 	sentence. 	See 	18 	U.S.C.
§ 924(c)(1)(D)(ii) (“[N]o term of imprisonment imposed on a person under this
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subsection shall run concurrently ….”); see also Barrett v. United States, 146 S.
Ct. 482, 488 (2026) (noting “§ 924(c)(1)(D)(ii)’s mandate that a subsection (c)
sentence must run consecutively to any other sentence”). 	The FSA did not
change 	that 	requirement. 	It 	only 	eliminated 	a 	specific 	“recidivism
enhancement 	that 	required 	imposition 	of 	an 	additional 	25 	years 	of
imprisonment” on top of the minimum sentence for each successive § 924(c)
conviction. 	Hewitt v. United States, 606 U.S. 419, 423 (2025); see First Step
Act of 2018, Pub. L. No. 115-391, Title IV, § 403(a), 132 Stat. 5194, 5221-22.
Here, however, the Court did not impose the 25-year minimum sentence
in addition to the sentence for each § 924(c) offense. Instead, Johnson received
an 84-month sentence for each of the two § 924(c) charges to which he pleaded
guilty. The FSA has no bearing on that sentence. See United States v. Cherry,
2022 WL 18539937, at *1 (5th Cir. Nov. 10, 2022) (rejecting similar contention
that § 924(c) sentences “improperly stacked”; defendant “was not sentenced to
the consecutive 25-year minimum sentences” but instead was given an 84-
month sentence as to each § 924(c) conviction, running consecutively). 	The
district court did not err by stacking Johnson’s § 924(c) counts.
III. 	Johnson has not shown that he had ineffective legal counsel.
Johnson also raises two theories when asserting that his counsel was
ineffective. Neither contention states a cognizable claim.
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A. 	Standard for ineffective assistance of counsel
To obtain relief for ineffective assistance of counsel, a defendant first
must show that his attorney’s representation was deficient. 	See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). 	“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation 	are 	reasonable 	precisely 	to 	the 	extent 	that 	reasonable
professional judgments support the limitations on investigation.” 	Hinton v.
Alabama, 571 U.S. 263, 274 (2014) (internal quotation omitted); see also Hill
v. Lockhart, 474 U.S. 52, 57-59 (1985) (extending Strickland to guilty pleas).
Under the first prong of Strickland’s test, counsel’s performance must be
compared to “an objective standard of reasonableness, mindful of the strong
presumption of adequacy.” 	Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.
1997). “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 [process] with obvious unfairness.” 	Id.
(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).
The second prong of Strickland requires a showing that the attorney's
“deficient performance prejudiced the defense.” 466 U.S. at 687. In the context
of guilty pleas, a “defendant must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have
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insisted on going to trial.” 	Hill, 474 U.S. at 59. 	When challenging counsel’s
errors 	during 	the 	sentencing 	phase, 	a 	defendant 	must 	demonstrate 	a
reasonable probability that he would have received a lesser sentence but for
counsel’s actions. United States v. Grammas, 376 F.3d 433, 439 (5th Cir. 2004).
B. 	Johnson’s contentions do not satisfy Strickland.
Johnson argues that his “lawyer was ineffective for not objecting to the
stacking of the 924(c) counts.” See Civ. Dkt. 9 at 7. But this claim presupposes
that the stacking was illegal, which is incorrect as a matter of law. 	See supra
Part II. 	Johnson cannot fault his attorney for failing to assert a meritless
objection to the consecutive § 924(c) sentences. See Roberts v. Thaler, 681 F.3d
597, 612 (5th Cir. 2012) (noting that “failure to lodge futile objections does not
qualify as ineffective assistance”); United States v. Kimler, 167 F.3d 889, 893
(5th Cir. 1999) (“An attorney’s failure to raise a meritless argument ... 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.”). Johnson’s first Strickland theory is barred.
As his second theory, Johnson claims that his counsel was ineffective
because he “guaranteed” a fourteen-year sentence, yet Johnson’s ultimate
sentence exceeded twenty years (246 months). 	See Civ. Dkt. 9 at 3, 7.
“A significant miscalculation between counsel’s erroneous sentence estimate
and 	the 	actual 	sentencing 	range 	can 	constitute 	deficient 	performance.”
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Martinez v. United States, 2022 WL 17096711, at *6 (N.D. Tex. Oct. 11, 2022)
(citing Grammas, 376 F.3d at 437), adopted by 2022 WL 17095918 (N.D. Tex.
Nov. 18, 2022). Even so, counsel’s alleged miscalculation cannot be prejudicial
if the record shows that the defendant “was clearly informed about and
understood his maximum sentence exposure when he pled guilty under the
plea agreement.” Id. (denying relief). That is the case here.
The record reflects that Johnson swore, under oath, that no one had
made any promises or assurances to persuade him to plead guilty, other than
what the plea agreement states. 	See Crim. Dkt. 76 at 14-15. 	When entering
into the plea agreement, Johnson also acknowledged that “any estimate of the
possible sentencing range under the sentencing guidelines that he may have
received from his/her counsel .... 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.” Crim. Dkt. 52 at 4 (emphasis added).
Johnson has not offered any explanation that would justify his attempt
to 	contradict 	his 	own 	sworn 	statements 	and 	acknowledgements. 	“[A]
defendant may seek habeas relief on the basis of alleged promises, though
inconsistent with representations [he] made in open court when entering [his]
guilty plea, by proving (1) the exact terms of the alleged promise, (2) exactly
when, where, and by whom the promise was made, and (3) the precise identity
of an eyewitness to the promise.” Cervantes, 132 F.3d at 1110 (affirming denial
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of relief based on allegations that “counsel rendered ineffective assistance by
inducing [defendant] to plead guilty with misrepresentations regarding the
sentence she would receive.”). 	But Johnson’s allegations fall well short of
meeting that standard. 	He provides no specifics about counsel’s “guarantee”
or even its relationship to the plea negotiations. His “conclusory allegations in
support of a claim of ineffective assistance of counsel are insufficient to raise a
constitutional issue.” See Green, 116 F.3d at 1042.
Moreover, Johnson has not alleged that he was prejudiced by this
supposed deficiency. Under Strickland’s second prong, the question is whether
“there is a reasonable probability that, but for counsel’s errors, [Johnson]
would not have pleaded guilty and would have insisted on going to trial.” 	See
Hill, 474 U.S. at 59. 	Johnson does not assert that he would chosen to plead
not guilty and proceeded to trial on all ten counts in the indictment—which
would have exposed him to an even higher potential maximum sentence—had
his 	lawyer 	not 	made 	the 	alleged 	“guarantee” 	about 	his 	sentence. 	His
ineffective assistance of counsel claims are meritless.
Because Johnson’s allegations are insufficient to support relief, his
§ 2255 motion should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim. Johnson’s IFP application is therefore moot.
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Recommendation
For the foregoing reasons, it is RECOMMENDED that Malik Johnson’s
motion under 28 U.S.C. § 2255 (Civ Dkt. 9; Crim. Dkt. 95) be DISMISSED
WITH 	PREJUDICE, 	and 	his 	application 	to 	proceed 	in 	forma 	pauperis
(Civ. Dkt. 10; Crim. Dkt. 93) be DENIED AS MOOT.
The Clerk of Court is directed to mail a copy of this opinion to Johnson
at his record address.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on February 25, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
_____________________________________
Y	Y	Y	Yvvooon	nne Y. H	H	Hoo
United States Magistrate Judge
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