UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CALVIN WAYNE THOMAS,

Movant,

v. No. 4:22-cv-0512-P

(No. 4:20-cr-0125-P)

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

Came on for consideration the motion of Calvin Wayne Thomas, 

Movant, pursuant to 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, and applicable authorities, concludes that 

the motion must be DENIED.

BACKGROUND

The record in the underlying criminal case reflects the following:

On May 28, 2020, Movant was named in a one-count indictment 

charging him with being a felon in possession of a firearm, in violation 

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). CR ECF No. 12. Movant entered 

a plea of not guilty. CR ECF No. 16. He later decided to change his plea 

and signed a factual resume setting forth the charge, the maximum 

penalty Movant faced, the elements of the offense, and the stipulated 

facts establishing that Movant had committed the offense. CR ECF No. 

21. He also signed a plea agreement with waiver of appeal. CR ECF No. 

22. On July 15, 2020, Movant appeared for re-arraignment and entered 

his plea of guilty. CR ECF Nos. 19 & 45. 

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

reflected that Movant’s base offense level was 22 based on his November 

26, 2012 conviction of the felony offense of murder, a crime of violence. 

CR ECF No. 27, ¶ 29. He received a two-level increase for a stolen 

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firearm. Id. ¶ 30. He received a four-level increase for engaging in drug 

trafficking while in possession of ammunition and a firearm. Id. ¶ 31. 

He received a two-level and a one-level reduction for acceptance of 

responsibility. Id. ¶¶ 38, 39. Based on a total offense level of 25 and a 

criminal history category of II, Movant’s guideline imprisonment range 

was 63 to 78 months. Id. ¶ 73. The PSR also contained a discussion of 

factors that might warrant a sentence outside the advisory guideline 

system. Id. ¶ 86. Movant filed a notice of no objections to the PSR. CR 

ECF No. 29. 

The Court sentenced Movant to a term of imprisonment of ninety 

months. CR ECF No. 38. The Court explained that the variance was due 

to the nature and circumstances of the offense, the history and 

characteristic of Movant, specifically, that his criminal history category 

under-represented his criminal history, and was necessary to reflect the 

seriousness of the offense, promote respect for the law, to provide just 

punishment, to afford adequate deterrence to criminal conduct, and to 

protect the public from further crimes of Movant. CR ECF No. 39. At 

sentencing, the Court explained:

Specifically, the defendant has a prior conviction for 

murder. He was sentenced to a term of imprisonment for 

that crime, which appears to provide—have provided no 

deterrent effect, as evidenced by his arrests for aggravated 

assault with a deadly weapon less than one year after 

discharge of his parole supervision for the murder crime.

While pending disposition in that case, the defendant 

committed the instant offense, emphasizing his continuing 

criminal behavior. It appears to the Court that the 

defendant has no regard for the law or the welfare of others 

and he’s a danger to society. He’s shown no signs of 

remorse, and appears to be well on his way to being a 

recidivist criminal.

In determining this sentence and the appropriate 

upward variance, I considered the advisory guidelines, as 

well as the statutory directives given to me by Congress in

18 United States Code Section 3553(a). It was my 

determination that a sentence of 90 months with a 3-year 

term of supervised release was sufficient but not greater 

[than] necessary to comply with the purposes set forth in 

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paragraph 2 of Section 3553(a), reflects the seriousness of 

and provides a just punishment for the offense, promotes 

respect for the law, affords adequate deterrence to criminal 

conduct, and protects the public from additional crimes of 

this defendant.

Indeed, even if my guideline calculations today are 

incorrect, a 90-month sentence, representing an upward 

variance and a 3-year term of supervised release, would 

have been the same sentence that I would have imposed 

otherwise based on my study of the factors set forth in 

Section 3553 applied to the facts of this case.

CR ECF No. 46 at 14–15. 

Movant appealed and his sentence was affirmed. United States v. 

Thomas, 851 F. App’x 528 (5th Cir. 2021). His petition for writ of 

certiorari was denied. Thomas v. United States, 142 S. Ct. 832 (2022).

GROUND OF THE MOTION

Movant asserts one ground in support of his motion, contending that 

he received ineffective assistance of counsel because his attorney did not 

object to information in the PSR and to the upward variance. ECF No. 1 

at 7.

APPLICABLE LEGAL STANDARDS

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 

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, 

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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 

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, noting that the Court adopted the findings and conclusions 

of the PSR because there were no objections, argues that his attorney 

should have objected to the increased base level he received because of 

his prior murder conviction and should have objected to the reference to 

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his pending assault charge. ECF No. 2 at 4. Neither objection would 

have made any difference in his sentence. And, because he cannot show 

prejudice, he cannot prevail. United States v. Stewart, 207 F.3d 750, 751 

(5th Cir. 2000).

As the government notes, even had Movant’s prior murder conviction 

not counted as a crime of violence, his guideline calculation would have 

been the same. ECF No. 8 at 6. As the PSR reflects, Movant was engaged 

in drug trafficking at the time of his arrest. CR ECF No. 27, ¶¶ 8–23. 

Pursuant to the cross reference, USSG 2K2.1(c)(1), Movant was 

accountable for 280.53 kilograms of converted drug weight, resulting in 

the same guideline calculation used for the firearm offense. Id. ¶ 23. 

Further, had one calculation been higher than the other, the higher 

calculation would have been used. Id. ¶ 32. Thus, had Movant objected 

to the crime-of-violence enhancement and had the objection been 

accepted, the base offense level for felon in possession of a firearm would 

have been decreased, and the higher cross-referenced level would have 

applied. In other words, the guideline range would have stayed the 

same. And, in any event, the Court would have imposed the same 

sentence even had the guideline calculation been incorrect. CR ECF No. 

46 at 15. 

As for the other objection Movant contends should have been made, 

the PSR correctly reflects the charges pending at the time, including 

aggravated assault with a deadly weapon. CR ECF No. 27, ¶ 47. Movant 

argues that he was actually innocent of that charge and that “it was 

getting dismissed by the State of Texas.” ECF No. 2 at 5. He does not 

offer any evidence to support such contention. Conclusory allegations 

are insufficient to support relief under § 2255. Miller, 200 F.3d at 282. 

But, even if he had offered support, it does not change the fact that 

Movant had been arrested on that charge and the charge was pending 

when the PSR was prepared. What concerned the Court at sentencing 

was that Movant’s prior sentence for murder had provided no deterrent 

effect. Movant continued to engage in criminal behavior without any 

regard for the law or safety of others. He was a danger to society. CR 

ECF No. 46 at 14. 

Although the Court need not consider the first prong of the 

Strickland test inasmuch as Movant cannot show prejudice, Movant 

likewise cannot show that his counsel’s performance fell outside the 

wide range of reasonable professional assistance. Strickland, 466 U.S. 

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at 689. Counsel was not required to foresee that the Supreme Court 

would determine that his prior murder conviction would not qualify as 

a crime of violence under USSG 4B1.2(a). United States v. Fields, 565 

F.3d 290, 294–95 (5th Cir. 2009) (clairvoyance is not a required attribute 

of effective representation). He was only required to present directly 

controlling precedents that might benefit his client. United States v. 

Slape, 44 F.4th 356, 360 (5th Cir. 2022). Such precedents did not exist 

at the time. See ECF No. 8 at 8–9 & n.2. Moreover, the PSR correctly 

reflected that Movant had a pending charge for aggravated assault with 

a deadly weapon. And, finally, any objection to the reasonableness of the 

sentence would have been frivolous since Movant waived his right to 

appeal. CR ECF No. 22. The waiver was knowing and voluntary and 

applies to the circumstances here based on the plain language of the 

agreement. CR ECF No. 45 at 29–33 (Movant’s testimony regarding 

waiver of right to appeal); United States v. Scallon, 683 F.3d 680, 682 

(5th Cir. 2012); United States v. Portillo, 18 F.3d 290, 292–93 (5th Cir. 

1994). 

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 17th day of November 2022.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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