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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEMARCUS RAKESTRAW, 

#27612-177,

 Movant,

§

§

§

§ No. 3:22-cv-00832-M (BT) 

v. § No. 3:17-cr-00469-M-1 

§

UNITED STATES of AMERICA, §

§

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Movant Demarcus Rakestraw, a federal prisoner, filed a pro se motion 

to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The District 

Court referred the resulting civil action to the United States magistrate judge 

pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the 

following reasons, the Court should deny Rakestraw’s § 2255 motion. 

I.

Rakestraw pleaded guilty to (i) possession of a controlled substance 

with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); 

and (ii) possession of a firearm by a convicted felon in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2). On January 28, 2020, the District Court 

sentenced him to a total term of 135 months’ imprisonment, a bottom-ofthe-guidelines sentence. 

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Rakestraw appealed to the Fifth Circuit Court of Appeals. His 

appellate attorney moved for leave to withdraw and filed briefs in 

accordance with Anders v. California, 386 U.S. 738 (1967), and United 

States v. Flores, 632 F.3d 229 (5th Cir. 2011). The Fifth Circuit concurred 

with counsel’s assessment that the appeal presented no nonfrivolous issues 

for appellate review and dismissed the appeal. United States v. Rakestraw, 

842 F. App’x 953 (5th Cir. 2021) (per curiam). 

Rakestraw then filed his § 2255 motion (ECF No. 2), in which he 

argues that his attorney should have challenged his felon-in-possession 

charge on the basis the firearm was not in or affecting commerce when he 

possessed it. The Government responds that his argument is based on a 

mistake regarding the relevant law, and he has failed to show ineffective 

assistance of counsel. Rakestraw did not file a reply. 

II.

In his sole claim, Rakestraw argues that his attorney provided 

ineffective assistance of counsel when he failed to challenge the 

Government’s “assertion that the firearm need not be proven to be in 

commerce at the time of the offense.” Mot. 4 (ECF No. 2). He further argues 

that this was error because a § 922(g) conviction requires the Government 

to show the firearm in question was “in or affecting commerce at the time of 

the offense.” Id. Rakestraw concludes that the Government “cannot satisfy 

this essential element of section 922(g),” and due to his attorney’s deficient 

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performance, he is now serving a sentence “for which he is ineligible to 

serve.” Id.

A.

To prevail on a claim of ineffective assistance of counsel, Rakestraw 

must show: (1) his counsel’s performance was deficient; and (2) the deficient 

performance prejudiced his defense so gravely as to deprive him of a fair 

trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the 

Court stated that “[j]udicial scrutiny of counsel's performance must be 

highly deferential” and “every effort [must] be made to eliminate the 

distorting effects of hindsight.” 466 U.S. at 689. Courts, therefore, must 

“indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Id.

Under Strickland, a court’s review of counsel's performance should be 

“highly deferential.” 466 U.S. at 698. This is so because “[i]t is all too 

tempting for a defendant to second-guess counsel’s assistance after 

conviction or adverse sentence[.]” Id. at 689. And “[g]iven the almost 

infinite variety of possible trial techniques and tactics available to counsel, 

this Circuit is careful not to second guess legitimate strategic choices.” Yohey 

v. Collins, 985 F.2d 222, 228 (5th Cir. 1993); see also United States v. Scott, 

11 F.4th 364, 373 (5th Cir. 2021) (recognizing there are “countless ways to 

provide effective assistance in any given case”) (quoting Strickland, 466 U.S. 

at 689).

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Even if Rakestraw proves his counsel’s performance was deficient, he 

must still prove prejudice. To demonstrate prejudice, he must show “a 

reasonable probability that the result of the proceedings would have been 

different but for counsel’s unprofessional errors.” Crane v. Johnson, 178 

F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he 

mere possibility of a different outcome is not sufficient to prevail on the 

prejudice prong.” Id. “Rather, the defendant must demonstrate that the 

prejudice rendered sentencing ‘fundamentally unfair or unreliable.’” Id.

(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

B.

It is unlawful for a convicted felon “to ship or transport in interstate 

or foreign commerce, or possess in or affecting commerce, any firearm or 

ammunition; or to receive any firearm or ammunition which has been 

shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 

922(g)(1). The requirement that the firearm in a § 922(g)(1) conviction 

traveled “in or affecting commerce” is met when the firearm previously 

traveled in interstate commerce. United States v. Fitzhugh, 984 F.2d 143, 

146 (5th Cir. 1993) (“[A] convicted felon’s possession of a firearm having a 

past connection to interstate commerce violates § 922(g)(1).”); see also 

United States v. Penn, 969 F.3d 450, 459 (5th Cir. 2020) (“We have held 

that the ‘in or affecting commerce’ element is satisfied if the firearm had ‘a 

past connection to interstate commerce.’”) (quoting Fitzhugh, 984 F.2d at 

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146); United States v. Hernandez, 841 F. App’x 736, 737 (5th Cir. 2021) (per 

curiam) (citing Fitzhugh, 984 F.2d at 146). 

If Rakestraw’s attorney had argued that § 922(g)(1) required the 

firearm in his case to be “in or affecting commerce” at the time of his offense, 

it would have been a frivolous argument. But the failure to raise a meritless 

argument cannot support an ineffective assistance of counsel claim. United 

States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999); see also Sones v. 

Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995) (counsel cannot be found 

deficient for failing to press a frivolous argument); United States v. Gibson, 

55 F.3d 173, 179 (5th Cir. 1995) (counsel is not required to make frivolous 

arguments). For this reason, Rakestraw has failed to show deficient 

performance and prejudice. His claim fails under both prongs of the 

Strickland standard, and it should be denied. 

III.

The District Court should DENY Rakestraw’s motion to vacate, setaside, or correct sentence under 28 U.S.C. § 2255. 

Signed July 28, 2023. 

_________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996)

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