# United States Court of Appeals

f or the Fifth Circuit

No. 19

- 11196 Summary Calendar

United States of America,

Plaintiff

— Appellee ,

versus
Dameyon Antoine Newton,

Defendant

— Appellant

.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19

- CV

- 356 USDC No. 4:16

- CR

- 60

- 1

Before Barksdale, Higginson, and H o, Circuit Judges

. Per Curiam : * Dameyon Antoine Newton , federal prisoner # 11568

- 078 and proceeding pro se , contests the district court ’ s denying his 28 U.S.C. § 2255 motion challenging his conviction of conspiracy to possess , with intent to distribute , cocaine , in violation of 21 U.S.C. § 846

. Our court granted a

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not preced ent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 9, 2022 Lyle W. Cayce Clerk Case: 19-11196 Document: 00516466434 Page: 1 Date Filed: 09/09/2022No. 19

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2 certificate of appealability (COA) on two of the six issues raised in the § 2255
motion : whether Newton ’s former counsel was ineffective for failing to

move to (1) suppress his post

- arrest statements on the claim that Newton w as twice denied requests to speak with counsel; and (2) suppress his post

- arrest

statements on the claim that law enforcement officers intimidated and
coerced him. ( The district court concluded : Newton waived these two claims by pleading guilty ; and his plea was voluntary

. ) Additionally, Newton claims the court erred in denying his § 2255 motion without holding an evidentiary hearing. ( As addressed in the order granting the COA, this claim does not require a COA. E.g. , Norman v. Stephens , 817 F.3d 226, 234 (5th Cir. 2016)

. ) The decision to deny Newton’s § 2255 motion without an evidentiary hearing is reviewed for abuse

- of

- discretion. E.g. , United States v. Cavitt , 550 F.3d 430, 442 (5th Cir. 2008). A s discussed infra , the record was adequately d eveloped, including Newton’s “solemn declarations in open court”; the record supported the determination his plea was voluntary; and Newton failed to show the likely merit of his claims . Therefore, the court did not abuse its discretion in denying the mot ion without holding an evidentiary hearing. United States v. McKnight , 570 F.3d 641, 649 (5th Cir. 2009) (citation omitted); e.g. , Cavitt , 550 F.3d at 442 (record not sufficiently developed to overcome petitioner’s showing of indicia of likely merit of hi s action); United States v. Samaniego , 532 F. App’x 531, 535

– 36 (5th Cir. 2013) (record not sufficiently developed due to, inter alia , lack of statement by counsel for decision). For the two claims permitted by the COA, o ur court review s t he district court ’ s factual findings for clear error ; its legal conclusions , de novo

. E.g. , Cavitt , 550 F.3d at 435

. C laims of ineffective assistance of counsel (IAC) are reviewed de novo

. E.g. , United States v. Scott , 11 F.4th 364, 368 (5th Cir. 2021), ce rt. denied , 142 S. Ct. 827 (2022)

. Generally , once a valid guilty Case: 19-11196 Document: 00516466434 Page: 2 Date Filed: 09/09/2022No. 19

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3 plea has been entered, “ all non

- jurisdictional defects in the proceedings are
waived ” , including IAC claims , unless , of course, the ineffectiveness relates to the voluntariness of the plea

. E.g. , Cavitt , 550 F.3d at 441 (citation omitted)

. To prevail on his IAC claims , Newton must demonstrate: counsel’s performance “fell below an objective standard of reasonableness”; and he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 687

– 88 (1984). Regarding the first prong, t here is a strong presumption that: counsel rendered adequate assistance; and the challenged action might be sound trial
strategy. E.g. , id. at 689. If Newton satisfies the first prong, he must establish prejudice by demonstrating “a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty”. Lee v. United States , 137 S. Ct. 1958, 1965 (2017) (citation omitted). Along that line, t he Court has clarified

“ [c] ourts should not upset a plea solely because of post hoc assertions from a defendant about how he woul d have pleaded but for his attorney ’ s deficiencies ”

. Id. at 1967. Courts “ should instead look to contemporaneous evidence to substantiate a defendant ’ s expressed preferences ”

. Id.

Newton has not shown objectively unreasonable assistance or prejudice. Even without his post

- arrest statements, the G overnment accumulated substantial evidence against him

. And, h is post hoc assertions he was denied counsel and his statements coerced are contradicted by the post

arrest reports. Moreover, t hrough correspondence h e told counsel he gave officers false information following his arrest. By affidavit , counsel attested : he conducted an independent investigation and concluded Newton’s post

arrest statements w ere voluntary ; he discussed with Newton the possibility of a motion to suppress the statements; and Newton insisted on avoiding a
trial. C f. Cavitt , 550 F.3d at 441 (stating evidence did not support counsel’s guilty

- plea recommendation was strategic and i nformed based, in part, on Case: 19-11196 Document: 00516466434 Page: 3 Date Filed: 09/09/2022No. 19

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4 absence of “sworn record testimony from counsel explaining the strategy behind his decision”).
By entering a guilty plea, Newton would : increase his chances for a
more lenient sentence ; and alleviate the risk of facing additio nal counts and charges. E.g. , Young v. Spinner , 873 F.3d 282, 287

– 88 (5th Cir. 2017). The contemplated motion to suppress was unsupported by the record and would have rel ied principally on Newton’s credibility as a witness and attestation of the facts, which counsel had reason to doubt. C f. Cavitt , 550 F.3d at 440 (motion to suppress had an “appreciable chance of success”). Further, Newton fail s to show exclusion of his statements woul d have a significant impact on the outcome at trial

. Accordingly, he has failed to overcome the strong presumption counsel ’s decision to recommend a guilty plea was strategic and reasonable. Even assuming Newton could establish the first prong for his IAC claims , he has failed to prove prejudice through showing a reasonable probability he would not have pleaded guilty but for counsel’s errors. E.g. , Lee , 137 S. Ct. at 1965. From the time of arrest throughout most of the criminal proceedings, his actions and correspondence overwhelmingly show his desire to cooperate in hopes of a lenient sentence. Prior to formally entering his plea, he admitted under oath : he was aware of , and understood , the elements of the offense charged and possible sentence ; he knowingly and voluntarily wished to plead guilty; he was satisfied with counsel’s representation ; and his plea was not influence d by any deal, understanding, promise, or other agreement with the G overnment. These “solemn declarations in open court carry a strong presumption of verity”. McKnight , 570 F.3d at 649 (citation omitted). Only after seeing the Presentence Investigation Report did Newton develop reservations

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5 After moving to withdraw his plea, he admitted in court the allegations supporting his motion to withdraw were false. Consequently, h is post hoc assertions he would have insisted on going to trial if properly advised about a possible motion to suppress lack “contemporaneous backing”

. Young , 873 F.3d at 287 ; e.g. , Lee , 137 S. Ct. at 1967. As in Young , Newton “had only one major interest: minimizing his sentence” ; and he cannot rely on hindsight to challenge his plea when unsatisfied with the resulting sentence

. Young , 873 F.3d at 288. Again , he fails to show a reasonable probability he would not have entered his plea but for the alleged error by counsel.

AFFIRMED. Case: 19-11196 Document: 00516466434 Page: 5 Date Filed: 09/09/2022