4:25-cv-00389•Johnson v. United States of America
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Malik Johnson, Petitioner, v. United States of America, Respondent. § § § § § § § § § § 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 1 of 12
2 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 2 of 12
3 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 3 of 12
4 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 4 of 12
5 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 5 of 12
6 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 6 of 12
7 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. Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 7 of 12
8 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 8 of 12
9 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.” Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 9 of 12
10 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 10 of 12
11 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. Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 11 of 12
12 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 Case 4:25-cv-00389 Document 13 Filed 02/25/26 in TXSD Page 12 of 12
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