IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SOLOMON EMAKOJI, §

§

Movant, §

§

V. § NO. 4:22-CV-260-O

§ (NO. 4:20-CR-018-O)

UNITED STATES OF AMERICA, §

§

Respondent. §

OPINION AND ORDER

Came on for consideration the motion of Solomon Emakoji, 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 record, including the record in the underlying criminal 

case, No. 4:20-CR-018-O, the additional filings made by Movant,1 and applicable authorities, 

finds that the motion must be DENIED. 

I. BACKGROUND

The record in the underlying criminal case reflects the following:

On January 15, 2020, Movant was named in a one-count indictment charging him with 

engaging in a monetary transaction in property derived from specified unlawful activity, in 

violation of 18 U.S.C. § 1957. CR Doc.2 1. Movant and his attorney signed a factual resume, 

which set forth the elements of the offense charged, the stipulated facts establishing that Movant 

had committed the offense, and the penalties to which Movant was subjected, including 

1 Movant filed a document docketed as a reply, ECF No. 7, and a “Motion to Include Supporting Details for the 

Purpose of Illustrating the Motion Dated 7/04/2022,” ECF No. 8. Movant apparently contends that the government 

did not timely file a response to his § 2255 motion. The response, ECF No. 6, was filed within sixty days of the 

order requiring a response. ECF No. 5. Movant has not made any substantive reply to the response. 2 The “CR Doc. __” reference is to the number of the item on the docket in the underlying criminal case, No. 4:20-

CR-018-O.

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imprisonment for a period not to exceed ten years. CR Doc. 23. They also signed a plea agreement 

pursuant to which Movant agreed to plead guilty to the offense charged. CR Doc. 24. Like the 

factual resume, the plea agreement also stated that Movant faced a term of imprisonment of up to 

ten years. Id. at 2. The government agreed not to bring any additional charges against Movant, id.

at 5, and Movant waived his right to appeal or to contest his sentence in any collateral proceeding 

except in certain circumstances not applicable here. Id. at 6. On April 9, 2021, Movant entered a 

plea of guilty to the charge against him. CR Doc. 43. 

The probation officer prepared the presentence report, which reflected that Movant’s 

guideline sentencing range was 12 to 18 months. CR Doc. 46, ¶ 69. The Court sentenced Movant 

to a term of imprisonment of 48 months. CR Doc. 64. The sentence was outside the sentencing 

guidelines, taking into account Movant’s role in the offense, the seriousness of the offense, 

financial harm to the victims, the need to afford adequate deterrence to criminal conduct, and the 

need to protect the public from further crimes of Movant. CR Doc. 65. Movant appealed, CR Doc. 

66, but later determined not to pursue the appeal. CR Doc. 68. 

II. GROUND OF THE MOTION

Movant asserts one ground in support of his motion. He contends that his sentence, which 

was above the guideline range, is unconstitutional. ECF No. 4 at 6. 

III. APPLICABLE LEGAL STANDARD

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, 

164-165 (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 

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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 Aare 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)).

IV. ANALYSIS

Pursuant to the plea agreement, which was accepted by the Court, Movant waived his right 

to complain about his sentence unless it exceeded the statutory maximum punishment or was the 

result of an arithmetical error. CR Doc. 24 at 6. Movant’s waiver was knowing and voluntary. 

There is no reason why it should not be enforced. United States v. Wilkes, 20 F.3d 651, 653 (5th 

Cir. 1994). 

Even had Movant not waived his right to pursue this ground, it is one that could and should 

have been raised on direct appeal and cannot be raised here. A motion under § 2255 is not a 

substitute for appeal. Brown v. United States, 480 F.2d 1036, 1038 (5th Cir. 1973). Movant has 

made no attempt to show cause and prejudice to be able to raise the ground here. Shaid, 937 F.2d 

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at 232. Thus, the claim is procedurally barred. United States v. Kallestad, 236 F.3d 225, 227 (5th 

Cir. 2000).

And, finally, Movant is mistaken in believing that the Court was required to impose a 

sentence within the guidelines. 18 U.S.C. § 3553(b). United States v. Smith, 440 F.3d 704, 707 

(5th Cir. 2006). He could not prevail in any event.

V. CONCLUSION

For the reasons discussed herein, the Court DENIES the relief sought in Movant’s motion 

under § 2255.

Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of 

appealability is DENIED. 

SO ORDERED on this 14th day of October, 2022.

_____________________________________

Reed O’Connor

UNITED STATES DISTRICT JUDGE

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