IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL DAVID MCCALL, §

#57215-177, §

MOVANT, §

§

V. § CIVIL CASE NO. 3:22-CV-1656-M-BK

§ (CRIMINAL CASE NO. 3:18-CR-240-M-1)

UNITED STATES OF AMERICA, §

RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Movant Michael McCall’s motion to 

vacate, set aside, or correct sentence under 28 U.S.C. § 2255 was referred to the undersigned

United States magistrate judge for case management, including the issuance of findings and a 

recommended disposition where appropriate. As detailed here, the motion should be DENIED. 

I. BACKGROUND

In 2018, McCall pled guilty to 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(e). Crim. Doc. 25.

1

 As 

noted in his Factual Resume and reiterated at rearraignment, McCall understood there was a 

potential enhancement under the Armed Career Criminal Act (ACCA) based on his prior Texas 

burglary convictions. Crim. Doc. 19 at 22; Crim. Doc. 47 at 13. At sentencing, however, the 

Court found the ACCA did not apply because of then-binding precedent in United States v. 

1 All “Crim. Doc.” citations refer to the related criminal case, United States v. McCall, No. 3:18-

CR-240-M (N.D. Tex.).

2 An amended Factual Resume was filed to correct a typographical error as noted at rearraignment. Doc. 26; Crim. Doc. 47 at 15-18. 

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Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc) (Herrold I). Crim. Doc. 48 at 4-5. The Court 

thus sentenced McCall to 37 months’ imprisonment. Crim. Doc. 40. The government appealed. 

Meanwhile, based on intervening Supreme Court precedent in Quarles v. United States, 

139 S. Ct. 1872 (2019), the Supreme Court granted the petition for writ of certiorari in Herrold I, 

vacating the judgment of the appellate court and remanding the case for further proceedings. 

United States v. Herrold, 139 S. Ct. 2712 (2019). On remand, the Court of Appeals for the Fifth 

Circuit reversed its decision in Herrold I and found that the Texas burglary statute qualifies as 

generic burglary and, thus, qualifies as an ACCA predicate offense. United States v. Herrold, 

941 F.3d 173 (5th Cir. 2019) (en banc) (Herrold II). 

The Fifth Circuit also later vacated McCall’s judgment and remanded for resentencing

relying on Herrold II. Crim. Doc. 50. On September 16, 2020, this Court found the ACCA 

applied to McCall and resentenced him to 15 years—the statutory minimum under the ACCA. 

Crim. Doc. 63. The Fifth Circuit subsequently affirmed the new sentence on direct appeal. 

United States v. McCall, 840 F. App’x 791 (5th Cir. 2021), cert. denied, 142 S. Ct. 597 (2021). 

In July 2022, McCall filed this timely § 2255 motion with brief in support. Doc. 2; Doc. 

3. He asserts that his plea was involuntary because of ineffective assistance of counsel. Doc. 2 

at 4. The Government opposes § 2255 relief, Doc. 10, and McCall has filed a reply, Doc. 11. 

Upon review, the Court concludes that McCall’s plea was voluntary, and that he fails to 

establish ineffective assistance of counsel. His § 2255 motion should thus be denied. 

II. ANALYSIS

A. Applicable Law

To be constitutionally valid, a guilty plea must be knowingly, voluntarily, and 

intelligently made. United States v. Hernandez, 234 F.3d 252, 254 (5th Cir. 2000). “The 

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Constitution requires that a defendant be advised and understand the consequences of a guilty 

plea.” United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990). See also Boykin v. Alabama,

395 U.S. 238, 244 (1969) (to be knowing and intelligent, the defendant must have “a full 

understanding of what the plea connotes and of its consequence”). “‘The consequences of a 

guilty plea, with respect to sentencing, mean only that the defendant must know the maximum 

prison term and fine for the offense charged.’” Rivera, 898 F.2d at 447 (citations omitted). 

Stated another way, as long as a defendant understands “‘the length of time he might possibly 

receive, he was fully aware of his plea’s consequences.’” Id. (citations omitted). 

Further, when challenging the validity of his guilty plea, a defendant ordinarily may not 

refute his sworn testimony given at the plea hearing while under oath. United States v. 

Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). A defendant must also overcome the 

presumption of regularity and “great evidentiary weight” accorded court records. United States 

v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (holding a signed, unambiguous plea agreement “is 

accorded great evidentiary weight” when determining whether a plea is entered voluntarily and 

knowingly). 

To succeed on an ineffective-assistance-of-counsel claim, the movant must also 

demonstrate that counsel’s performance was deficient and that the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Failure to 

establish either deficient performance or prejudice defeats the claim. Id. at 697. 

To prove the deficient-performance prong of the Strickland test, the movant must show 

that counsel made errors so serious that he or she was not functioning as the counsel guaranteed 

by the Sixth Amendment. Id. at 687. The proper measure of attorney performance is 

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reasonableness under prevailing professional norms. Id. at 688. That said, “[j]udicial scrutiny of 

counsel’s performance must be highly deferential.” Id. at 689. There is a strong presumption 

that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. 

Moreover, to prove prejudice, the movant “must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. To demonstrate prejudice in the context of a guilty 

plea, the movant must show that “counsel’s constitutionally ineffective performance affected the 

outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The movant bears the 

burden of proving that “there is a reasonable probability that, but for counsel’s errors, he would 

not have pleaded guilty and would have insisted on going to trial.” Id. 

B. Validity of plea claim is procedurally defaulted.

McCall challenges the voluntariness of his guilty plea. Having failed to raise the claim 

on direct appeal, the Court agrees with the Government that it is procedurally defaulted, absent a 

showing of cause and prejudice or that the movant is “actually innocent” of the crime for which 

he was convicted. See United States v. Logan, 135 F.3d 353, 355 (5th Cir. 1998) (citing United 

States v. Frady, 456 U.S. 152, 168 (1982)); see also Bousley v. United States, 523 U.S. 614, 621 

(1998) (“[V]oluntariness and intelligence of a guilty plea can be attacked on collateral review 

only if first challenged on direct review.”). 

McCall does not satisfy the cause-and-actual-prejudice exception to excuse his failure to 

raise the validity of his plea on direct appeal. While he asserts that trial counsel’s ineffective 

assistance rendered his plea involuntary, he does not challenge his appellate counsel’s failure to 

present the issue on appeal. And even assuming that cause exists to excuse the procedural

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default, McCall does not demonstrate that he will suffer actual prejudice because he fails to 

establish a meritorious claim as discussed below. He also does not assert his actual innocence.3 

C. McCall’s ineffective assistance claims are unsupported.

McCall argues that his guilty plea was involuntary because counsel grossly misadvised 

him about his sentencing exposure in deciding whether to plead guilty. Doc. 3 at 2, 7. He 

asserts that counsel “assured [him] that he would receive a sentence of between 30 and 37 

months,” and that he “was NOT eligible for sentencing under the [ACCA].” Doc. 3 at 2, 7; see 

also Movant’s Decl., Doc. 7 at 2. As a result, McCall states that he “understood that his plea 

absolutely limited his sentence exposure to no more than ten (10) years’ imprisonment.” Doc. 3 

at 2. See also Doc. 7 at 2. 

McCall also contends counsel was “deficient for failing to warn him of the reality that 

precedent was in flux and there was a very real likelihood that he would be eligible for 

sentencing under the ACCA . . . if he pleaded guilty.” Doc. 3 at 8. McCall thus concludes that 

he would not have pleaded guilty and would have insisted on going to trial. Doc. 3 at 2; Doc. 7 

at 2-3 (“Had I been accurately advised of the true range of imprisonment I faced based on the 

guilty plea [counsel] recommended I enter, a mandatory minimum sentence of 15 years’ 

imprisonment, up to a statutory maximum of Life, I would not have pleaded guilty and would 

have exercised my right to trial by jury.”). 

McCall’s sworn statements at rearraignment, however, contradict his current assertions 

that his plea was induced by misinformation about his sentencing exposure. McCall confirmed 

3

In his reply, McCall wrongly maintains that the government argues that his ineffectiveassistance claim is procedurally barred. Doc. 3 at 3-4.

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under oath his understanding that by pleading guilty he would be subject to both (1) a maximum 

prison term of 10 years and (2) a potential imprisonment of not less than 15 years and a 

maximum of life if the court finds at sentencing that he should be sentenced under the ACCA.

Crim. Doc. 47 at 13-14. McCall assured the Court that no one had given him “any promise” or 

“any assurance of any kind” to get him to plead guilty. Crim. Doc. 47 at 13. Further, the Court 

thoroughly cautioned McCall that he could not rely on counsel’s statements about the application 

of the advisory Sentencing Guidelines, since only the Court could determine the guideline range 

after considering the Presentence Report (“PSR”) and any objections. Crim. Doc. 47 at 9-10. 

McCall admitted that he understood that the Court could impose a sentence more severe than his 

advisory guideline range, and that, if that happened, he would not be permitted to withdraw his 

guilty plea. Crim. Doc. 47 at 14.

By his Factual Resume—which he likewise confirmed under oath that he signed only 

after reading it carefully and discussing it with his counsel—McCall affirmed his knowledge of 

both the maximum penalty that he faced and the potential ACCA enhancement. Crim. Doc. 47 

at 15; Doc. 19 at 1-2. He also confirmed his understanding that (1) the Court would determine 

the sentence after considering the advisory Sentencing Guidelines, (2) no one, including his 

counsel, could guarantee what the punishment will be, and (3) the Court, in its discretion, could 

sentence him up to the statutory maximum penalty. Crim. Doc. 47 at 13-14; Crim. Doc. 19 at 1-

3. McCall also stated that he was satisfied with his counsel’s advice and representation. Crim. 

Doc. 47 at 7; Crim. Doc. 19 at 4. 

Notwithstanding his sworn statements, McCall now contends that counsel was “deficient 

for failing to warn him of the reality that precedent was in flux and there was a very real 

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likelihood that he would be eligible for sentencing under the ACCA . . . if he pleaded guilty.” 

Doc. 3 at 8. He offers nothing to support his claim but his self-serving, post-hoc allegations,

which are insufficient. Lee v. United States, 582 U.S. 357, 369 (2017). McCall’s affidavit is

also silent about counsel’s alleged failure to warn him that the law was not settled. Doc. 7.

Further, as the record confirms, ACCA precedent was unsettled in mid-2018 when 

McCall was indicted and pled guilty. In April 2018, shortly before his indictment, the 

government had petitioned for writ of certiorari from the Herrold I decision, maintaining it was 

wrongly decided. United States v. Herrold, Nos. 17-1445 (filed Apr. 28, 2018). The Supreme 

Court had also granted the government’s petition for writ of certiorari in two other burglary cases

involving the same issues. See United States v. Stitt, 138 S. Ct. 1592 (Apr. 23, 2018); United 

States v. Sims, 138 S. Ct. 1592 (Apr. 23, 2018). Further, in McCall’s case, the government

reiterated its opposition to Herrold I and a non-ACCA sentence in its objections to the PSR in 

October 2018 and again in December 2018. Crim. Doc. 31; Crim. Doc. 37.

4

At sentencing, the Court repeated the government’s standing objection to a non-ACCA 

sentence but applied the then-controlling precedent of Herrold I. Crim. Doc. 48 at 4-5 (“The 

Government, so that it is clear, continues to object that Herrold is wrong; the Solicitor General is 

seeking review by the Supreme Court. The Government will object. It does object to the Court 

not applying the Armed Career Criminal enhancement, but the Court will make those 

adjustments and will apply Herrold.”). McCall confirmed reviewing the PSR documents, Crim. 

Doc. 48 at 3, and otherwise, said nothing about the alleged involuntariness of his plea or his 

4 Until the Herrold II decision in October 2019, it remained uncertain whether the Texas 

burglary statute was generic, and so whether McCall’s prior Texas burglary convictions could 

someday count as predicate offenses for enhancement under the ACCA. 

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counsel’s allegedly inadequate guidance about his sentencing exposure. Crim. Doc. 48 at 16-18.

Additionally, McCall had ample time—nearly nine months—between the Fifth Circuit’s

December 2019 decision to remand after Herrold II and his September 2020 resentencing—to 

advise the Court that he was dissatisfied with defense counsel’s conduct and purported 

misleading statements about his sentencing exposure. However, he failed to do so. Similarly at 

his resentencing, McCall voiced no objection about the voluntariness of his guilty plea or his 

counsel’s advice and allegedly deficient performance. Crim. Doc. 65. Instead, he only requested 

that the Court wait until after the Supreme Court had decided the petition for writ of certiorari in 

Harrold II. Crim. Doc. 69 at 7-8, 13. These circumstances strongly suggest McCall’s § 2255 

claims are driven by “buyer’s remorse” rather than any defect in the guilty plea procedure. 

Based on this record, McCall’s self-serving assertions that his guilty plea was involuntary

and that counsel misadvised him about his sentencing exposure are contradicted by his 

attestations in the Factual Resume and under oath at the rearraignment. McCall’s suggestion of 

surprise at his ultimate, 15-year ACCA sentence is clearly disingenuous under the facts. Again, 

he was directly informed by his Factual Resume and during the re-arraignment colloquy of the 

potential ACCA enhancement. See Rivera, 898 F.2d at 447. 

Further, if McCall faults his counsel for failing to accurately predict the outcome of 

Quarles and Herrold II—that is, to anticipate a change in the law—his claim lacks merit. To be 

sure, “there is no general duty on the part of defense counsel to anticipate changes in the law.” 

United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009). “Clairvoyance is not a required 

attribute of effective representation.” Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972).

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For the foregoing reasons, McCall fails to demonstrate that his attorney’s performance

was deficient.

McCall has also failed to demonstrate prejudice: that but for his counsel’s allegedly 

erroneous advice, he would not have pleaded guilty and would have insisted on going to trial. 

See Hill, 474 U.S. at 59. He again presents only self-serving, post hoc assertions—not 

“contemporaneous evidence”—that he would not have pled guilty and would have gone to trial 

but for counsel’s supposed explanations about his sentencing exposure. McCall’s assertions now

are belied by the record, and are simply insufficient to contradict his sworn testimony at 

rearraignment. Lee v. United States, 582 U.S. 357, 369 (2017) (“Courts should not upset a plea 

solely because of post hoc assertions from a defendant about how he would have pleaded but for 

his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to 

substantiate a defendant’s expressed preferences.”); United States v. Crain, 877 F.3d 637, 650 

(5th Cir. 2017) (explaining that “self-serving post hoc assertions about how [the defendant] 

would have pled” do not negate the contemporaneous comments at the plea hearing). 

Sworn statements made in open court are entitled to a strong presumption of truthfulness. 

United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (citing Blackledge v. Allison, 

431 U.S. 63, 74 (1977)). Consequently, a defendant will not be permitted to contradict testimony 

given under oath at arraignment and sentencing. See United States v. Cervantes, 132 F.3d 1106, 

1110 (5th Cir. 1998) (requiring movant to produce “independent indicia of the likely merit of 

[his] allegations” to overcome re-arraignment testimony and plea agreement, which refuted his 

allegations); United States v. Guzman, No. 19-10783, 2021 WL 2610124, at *3 (5th Cir. Oct. 6, 

2021) (rejecting post hoc claim the defendant would have proceeded to trial but for counsel’s 

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alleged errors based on defendant’s sworn statements at re-arraignment and sentencing).

In sum, McCall fails to demonstrate that (1) his guilty plea was unknowing and 

involuntary and (2) his counsel rendered deficient performance and that he was prejudiced as a 

result of the same. McCall’s claims therefore fail. 

III. EVIDENTIARY HEARING

In his reply, McCall requests an evidentiary hearing to develop and resolve his claims. 

Doc. 11 at 1, 6-9. But “[w]hen the files and records of a case make manifest the lack of merit of 

a Section 2255 [motion], the trial court is not required to hold an evidentiary hearing.” United 

States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981); see also United States v. Reed, 719 F.3d 

369, 373-74 (5th Cir. 2013) (“A defendant is entitled to an evidentiary hearing on his § 2255

motion only if he presents ‘independent indicia of the likely merit of [his] allegations.’” (quoting 

United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008))). Because McCall’s claims lack merit 

for reasons supported by the record, as previously noted, no evidentiary hearing is necessary. 

IV. CONCLUSION

McCall’s § 2255 motion should be DENIED, and this case should be DISMISSED 

WITH PREJUDICE.

SO RECOMMENDED on November 21, 2023.

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will 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). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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 Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 

1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections to 14 days). 

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