UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JAMES HAMILTON,

Movant,

v. No. 4:22-cv-0292-P

(No. 4:19-cr-0336-P)

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

Came on for consideration the motion of James Hamilton, Movant, 

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, including the record in the underlying 

criminal case styled “United States v. Marcus Ray Nelson, et al.,” and 

applicable authorities, concludes that the motion must be DENIED.

BACKGROUND

The record in the underlying criminal case reflects the following:

On November 14, 2019, Movant was named along with others in a 

one-count indictment charging him with conspiracy to possess with 

intent to distribute 50 grams or more of a mixture and substance 

containing a detectable amount of methamphetamine, in violation of 21 

U.S.C. § 846. CR ECF No. 3. On November 18, 2019, appointed counsel 

entered an appearance on Movant’s behalf. CR ECF No. 12. Movant 

initially entered a plea of not guilty. CR ECF No. 15.

On December 3, 2019, counsel filed a motion to withdraw 

(erroneously titled a motion for substitution), reflecting that Movant 

wanted a different attorney. CR ECF No. 35. On December 5, 2019, the 

Court heard the motion and determined that it should be denied. CR 

ECF No. 152. The gist of Movant’s complaint was that counsel would not 

give him copies of documents produced by the Government. Counsel 

explained, and the Court confirmed, that inmates are not allowed to 

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possess such items. Counsel had delivered paper copies to the jail and 

told Movant he could study them in the law library. Movant refused to 

listen to counsel and apparently did not seek access to the law library. 

He wanted to quibble about how things are done differently in Missouri, 

where he had served state time. The Court admonished Movant that he 

had been assigned competent counsel and that he needed to work with 

him. Id.

On December 18, 2019, Movant entered a plea of guilty to the charge 

against him. CR ECF No. 46. Movant and his counsel signed a factual 

resume setting forth the offense, the penalty Movant faced—not less 

than five years or more than forty years’ imprisonment, the elements of 

the offense, and the stipulated facts establishing that Movant had 

committed the offense. CR ECF No. 43. Movant and his counsel also 

signed a plea agreement with waiver of appeal, which also described the 

offense and the penalty Movant faced, along with the admonishment 

that the sentence would be wholly within the Court’s discretion, that no 

one could predict with certainty the outcome of the Court’s consideration 

of the guidelines, and that Movant would not be allowed to withdraw his 

plea if the sentence was higher than expected. CR ECF No. 44. The plea 

agreement recited that the plea was freely and voluntarily made by 

Movant and that no guarantees or promises had been made by anyone 

as to the sentence the Court might impose. Id.

At re-arraignment, Movant testified under oath that: he understood 

that he should never depend or rely on any promise or statement by 

anyone as to the penalty that would be assessed; other than the written 

plea agreement, no one had made any promise or assurance to induce 

him to plead guilty; all of the terms of his agreement to plead guilty were 

set forth in the plea agreement; he fully understood everything in the 

plea agreement and voluntarily entered into it; he had discussed the 

guidelines with counsel; he understood that he faced a sentence of five 

to forty years’ imprisonment; he understood that if he received a 

sentence more severe than he expected, he would not be allowed to 

withdraw his plea; and, he had read and fully understood the factual 

resume and the facts stated in it were true and correct. CR ECF No. 154.

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The probation officer prepared the presentence report (“PSR”), which 

reflected that Movant’s base offense level was 36. CR ECF No. 80, ¶ 35. 

He received a two-level increase for importation, id. ¶ 36, and a twolevel and a one-level reduction for acceptance of responsibility. Id. ¶¶ 42, 

43. Based on a total offense level of 35 and a criminal history category 

of IV, Movant’s guideline imprisonment range was 235 to 293 months. 

Id. ¶ 107. Movant filed objections, CR ECF No. 83, and the probation 

officer prepared an addendum to the PSR explaining why the objections 

were without merit. CR ECF No. 100. 

On June 8, 2020, the Court sentenced Movant to a term of 

imprisonment of 240 months. CR ECF No. 133. Despite having waived 

his right to do so, Movant appealed. CR ECF No. 132. The Court 

appointed another attorney to represent Movant on appeal. CR ECF 

Nos. 136, 140. His appellate attorney filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and was allowed to withdraw. The 

appeal was dismissed as frivolous. United States v. Hamilton, 832 F. 

App’x 903 (5th Cir. 2021). 

GROUNDS OF THE MOTION

Movant purports to raise four grounds, all predicated on ineffective 

assistance of counsel. ECF No. 1 at 4, 5, 7, 81 (all referencing Movant’s 

memorandum of law). The memorandum, which is not signed, does not 

set forth separate grounds. ECF No. 2. The reply appears to 

acknowledge that the Government has correctly described three grounds 

and various sub-arguments. ECF No. 11. The Court discusses each 

below.

STANDARDS OF REVIEW

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, 164–65 (1982); United 

States v. Shaid, 937 F.2d 228, 231–32 (5th Cir. 1991). A defendant can 

1 The page references are to “Page __ of __” assigned by the Court’s 

electronic filing system and reflected at the top right portion of the document. 

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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 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 “are 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, a 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, 687 (1984); see also Missouri v. Frye, 566 U.S. 133, 147 (2012). 

“[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. Pinholster, 563 U.S. 170, 189 (2011) (quoting 

Strickland, 466 U.S. at 686). Judicial scrutiny of this type of claim must 

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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). 

ANALYSIS

Movant alleges that his trial counsel provided ineffective assistance 

in advising him that he would be sentenced to no more than 150 months 

if he pled guilty. ECF No. 2 at 5, 8, 13. The contention is wholly 

unsupported. The record, on the other hand, establishes that the plea 

was knowing, voluntary, and informed. Movant signed the plea 

agreement reflecting that no promises had been made to induce him to 

plead guilty. CR ECF No. 44. In addition, Movant testified under oath 

at re-arraignment that no one had made any promise or assurance to 

him of any kind to induce him to plead guilty. CR ECF No. 154 at 49. 

Unambiguous written plea agreements are entitled to a presumption of 

regularity and are accorded great evidentiary weight. Hobbs v. 

Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985). Likewise, solemn 

declarations in open court carry a strong presumption of verity. 

Blackledge v. Allison, 431 U.S. 63, 74 (1977). 

For a defendant who seeks habeas relief on the basis of alleged 

promises inconsistent with representations he made in open court to 

prevail, he must prove: “(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 the eyewitnesses to the promise.” United States v. 

Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). To be entitled to an 

evidentiary hearing, the defendant must produce “independent indicia 

of the likely merit of [his] allegations, typically in the form of one or more 

affidavits from reliable third parties.” Id. “If, however, the defendant’s 

showing is inconsistent with the bulk of [his] conduct or otherwise fails 

to meet [his] burden of proof in the light of other evidence in the record, 

an evidentiary hearing is unnecessary.” Id. See also United States v. 

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Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985). Movant is not entitled to a 

hearing here.

Movant additionally alleges that counsel was ineffective at the preplea stage by failing to provide Movant with discovery to review, failing 

to move for a thorough assessment of the drugs involved in the case, and 

failing to adequately support his request to withdraw. ECF No. 2 at 5–

7, 10. The allegations are conclusory and fail to raise any constitutional 

issue. Miller, 200 F.3d at 282. Moreover, once a guilty plea has been 

entered, all nonjurisdictional defects in the proceedings against the 

defendant are waived. United States v. Cavitt, 550 F.3d 430, 441 (5th 

Cir. 2008). A guilty plea waives pre-plea ineffective assistance of counsel 

unless the movant can show that he would not have pleaded guilty but 

for counsel’s deficient performance and that he would have insisted on 

going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Cavitt, 550 F.3d 

at 441. Here, Movant does not allege that he would have done anything 

differently. 

Finally, Movant alleges that he received ineffective assistance during 

the sentencing phase. He says that counsel failed to adequately discuss 

the PSR, failed to file a motion pinpointing the time frame of his 

involvement in the conspiracy, failed to press his objections to the PSR 

at sentencing, and failed to challenge “the misinterpretation of 

[Movant’s] base offense level.” ECF No. 2 at 9–14. All of the allegations

are conclusory and insufficient to state a constitutional ground. Miller, 

200 F.3d at 282. Movant does not specify the “critical issues,” “other 

questions,” or “relevant objections” that he needed to discuss. Id. at 9. 

Counsel did object to the PSR for stating that the period of Movant’s 

involvement in the conspiracy ended in July 2019 since he was arrested 

on June 12, 2019. CR ECF No 96 at 1. The allegation about the failure 

to challenge the “misinterpretation” of the base offense level makes no 

sense. In any event, counsel did object that Movant had no knowledge of 

drug purity and should not be held accountable for it. Id. at 1–2. The 

transcript of the sentencing hearing reflects that the Court was wellaware of Movant’s objections to the PSR. CR ECF No. 149. Movant does 

not identify what further argument could have been made, much less 

how it would have affected the outcome. 

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CONCLUSION

For the reasons discussed, Movant’s motion is DENIED.

Further, for the reasons discussed herein, pursuant to 28 U.S.C. 

§ 2553(c), a certificate of appealability is DENIED.

SO ORDERED on this 28th day of October 2022.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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