UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

EMMANUEL ASHEMUKE,

Movant,

v. No. 4:22-cv-0400-P

(No. 4:19-cr-0331-P)

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

Came on for consideration the motion of Emmanuel Ashemuke, 

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 memorandum in support, the response, the reply, the 

record, including the record in the underlying criminal, and applicable 

authorities, concludes that the motion must be DENIED.

BACKGROUND

The record in the underlying criminal case reflects the following:

On November 7, 2019, Movant was named in a one-count information 

charging him with conspiracy to commit an offense against the United 

States, engaging in monetary transactions in property derived from 

specified unlawful activity, in violation of 18 U.S.C. § 371. CR ECF No. 

23. Movant and his counsel signed a waiver of indictment, CR ECF No. 

28, factual resume, CR ECF No. 29, and plea agreement. CR ECF No. 

30. The factual resume set forth the charge, the elements of the offense, 

the penalty Movant faced, and the stipulated facts establishing that

Movant had committed the offense. CR ECF No. 29. The plea agreement 

set forth the penalty Movant faced, the role of the Court, the 

government’s agreement not to bring any additional charges against 

Movant based on the conduct underlying the plea, that Movant had 

thoroughly reviewed all legal and factual aspects of the case with his 

attorney and was satisfied with his representation, that his plea was 

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knowing and voluntary, and that he had concluded that, because he was 

guilty, it was best to enter into the plea agreement rather than proceed 

to trial. CR ECF No. 30. 

On November 15, 2019, Movant appeared before the Court and 

entered his plea of guilty to the information. CR ECF No. 74. Movant 

testified under oath at arraignment that: He understood that he should 

never depend or rely upon any statement or promise by anyone as to 

what penalty would be assessed against him and that his plea must not 

be induced or prompted by any promises, mental pressure, threats, 

force, or coercion; he had discussed with his attorney how the sentencing 

guidelines might apply in his case; the Court would not be bound by the 

stipulated facts and could take into account other facts; the guideline 

range could not be determined until the presentence report (“PSR”) had 

been prepared; he had read and understood and discussed the legal 

meaning of everything in the factual resume and plea agreement with 

his attorney and had approved of all of the changes made in them; his 

term of imprisonment could be as much as five years; the plea agreement 

contained all of the terms of his agreement with the government; he 

entered into the plea agreement freely and voluntarily without any 

promise or coercion having been made; he was pleased with his attorney 

and had no complaint whatsoever about him; and, the stipulated facts 

in the factual resume were true and correct. Id. Movant clarified certain 

transfers and the Court expressed the concern that the maximum 

sentence that could be imposed was five years, whereas the substantive 

offenses all contemplated a sentence of ten to twenty years’ 

imprisonment. Id. at 38–39.

The probation officer prepared the PSR, which reflected that 

Movant’s base offense level was 24. CR ECF No. 33, ¶ 37. He received a 

four-level increase for being in the business of laundering funds. Id.

¶ 38. He received a three-level increase for his role in the offense. Id.

¶ 41. He received a two-level and a one-level decrease for acceptance of 

responsibility. Id. ¶¶ 45, 46. Based on a total offense level of 28 and a 

criminal history category of I, Movant’s guideline range was 78 to 97 

months; however, the statutorily authorized maximum sentence was 

five years, so the guideline term of imprisonment became sixty months.

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Id. ¶ 84. The PSR also included a discussion of factors that might 

warrant departure or a sentence outside the advisory guideline system. 

Id. ¶¶ 97–99. Movant filed objections, CR ECF No. 35, and the probation 

officer prepared an addendum to the PSR. CR ECF No. 39. The Court 

issued an order tentatively concluding that the plea agreement should 

be rejected. CR ECF No. 55. The probation officer prepared a second 

addendum to the PSR. CR ECF No. 59. 

The case was transferred to the docket of the undersigned, who 

reluctantly accepted the plea agreement. CR ECF No. 73. The Court 

sentenced Movant to a term of imprisonment of sixty months. CR ECF 

No. 65. He appealed. CR ECF No. 67. The judgment was affirmed. 

United States v. Ashemuke, No. 20-11142, 2021 WL 3745544 (5th Cir. 

Aug. 24, 2021). His petition for writ of certiorari was denied. CR ECF 

No. 78. 

GROUNDS OF THE MOTION

Movant asserts six grounds in support of his motion: (1) ineffective 

assistance of counsel; (2) business of laundering funds; (3) leadership 

role; (4) statements by the Judge at sentencing; (5) no agreement or 

knowledge of conspiracy; and (6) base offense level. ECF No 1 at 7–9.1

APPLICABLE 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 

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. 

1 The reference is to “Page __ of 13” assigned by the Court’s electronic filing 

system and found at the top right portion of the page.

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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 

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). 

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ANALYSIS

In support of his allegation of ineffective assistance of counsel, 

Movant contends that counsel erred (1) in stating in the objections to the 

PSR that Movant conceded to engaging in laundering funds, (2) in giving 

misleading advice that Movant’s wife could legally be permitted to 

testify against him at trial, (3) by never relaying information of his 

arbitrage business, and (4) by failing to investigate. ECF No. 1 at 7. In 

his reply, Movant seems to be alleging that his plea was not knowing 

and voluntary because of these alleged shortcomings of counsel. ECF No. 

7 at 2. His argument comes too late, as a movant cannot assert new 

grounds after the government has responded to his motion. But, in any 

event, movant’s contention is belied by the record. 

“Solemn declarations made in open court carry a strong presumption 

of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Moreover, a 

factual resume and plea agreement are likewise entitled to the 

presumption and carry great evidentiary weight. United States v. Abreo, 

30 F.3d 29, 32 (5th Cir. 1994); Hobbs v. Blackburn, 752 F.2d 1079, 1081 

(5th Cir. 1985). Here, Movant conceded in his factual resume that he 

had conspired with others to launder criminally-derived money of value 

greater than $10,000 and that as part of the conspiracy, he received 

money by mail and by deposits to his bank accounts from fraud victims 

and sent it to overseas banks. CR ECF No. 29. At arraignment, Movant 

testified under oath that he had read the factual resume and plea 

agreement carefully, discussed each of them with counsel, and 

understood everything in them before he signed them. CR ECF No. 74 

at 18–19. He testified that all of the stipulated facts in the factual 

resume were true and correct. Id. at 37. And, he clarified that he had 

received from R.K., a victim of the scheme, at least $10,000 that he 

deposited into his Farmers and Merchants Bank account and then 

internationally wired at least $10,000 of those funds to the First Bank 

of Nigeria. Id. at 38. His guilty plea was knowing and voluntary and 

made with sufficient awareness of the relevant circumstances and likely 

consequences. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). 

Because Movant conceded to having engaged in money laundering, 

his counsel cannot have performed deficiently by recognizing that fact 

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in the objections to the PSR. Movant’s remaining allegations, that 

counsel gave Movant misleading advice that his wife could legally be 

permitted to testify against him, that he never relayed information 

about Movant’s arbitrage business, and that counsel failed to 

investigate, were waived by his guilty plea. United States v. Cavitt, 550 

F.3d 430, 441 (5th Cir. 2008) (once a guilty plea is entered, all 

nonjurisdictional defects in the proceedings against the defendant are 

waived). 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. Movant’s post hoc conclusory allegation that he would have gone 

to trial is insufficient. Lee v. United States, 137 S. Ct. 1958, 1967 (2017). 

The allegations are meritless in any event. A spouse has the privilege to 

refuse to testify and cannot be compelled or foreclosed from doing so. 

Trammel v. United States, 445 U.S. 40, 53 (1980). Movant never 

disclosed his alleged arbitrage business when he met with law 

enforcement See CR ECF No. 33. And, the allegation of failure to 

investigate is wholly conclusory and provides no grounds for relief. 

Miller, 200 F.3d at 282. See also Miller v. Dretke, 420 F.3d 356, 361 (5th 

Cir. 2005) (movant must allege with specificity what the investigation 

would have revealed and how it would have changed the outcome of the 

proceedings). 

In his second, third, and sixth grounds, Movant alleges that the 

Court erred in applying the four-level increase for money laundering, in 

applying the three-level increase for role in the offense, and in 

incorrectly calculating his base offense level. ECF No. 1 at 7, 9. As the 

government notes, these grounds are not cognizable in a § 2255 motion. 

United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). The third 

and sixth grounds were raised on appeal and determined to be without 

merit. Ashemuke, 2021 WL 3745544, at *1–*2. They cannot be pursued 

here. United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986); United 

States v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981). Apparently 

recognizing that he cannot raise them, Movant now argues that he is 

really complaining of ineffective assistance of counsel on appeal. 

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However, as stated, the Court does not consider new grounds raised in 

a reply. Even if it did, for all of the reasons discussed by the government, 

the grounds are without merit. ECF No. 6 at 14–20. 

In his fourth ground, Movant appears to contend that he was denied 

a fair tribunal. ECF No. 1 at 8. He relies on the undersigned’s statement 

at sentencing that, even if the guideline calculations were later 

determined to be incorrect, the Court would have imposed the same 

sentence based on the factors enumerated in 18 U.S.C. § 3553. CR ECF 

No. 73 at 19. The ground was not, but should have been, raised on appeal 

and cannot be pursued here. Davis, 417 U.S. at 345. Movant has not 

shown cause and prejudice. Hogue v. Johnson, 131 F.3d 466, 497 (5th 

Cir. 1997). And, the ground is meritless even if it could properly be 

presented. See, e.g., United States v. Leontaritis, 977 F.3d 447, 452 (5th 

Cir. 2020) (guideline error harmless where the district court said it 

would have imposed the same sentence under § 3553); United States v. 

Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (same). 

In his fifth ground, Movant alleges that he had no agreement or 

knowledge of a conspiracy and never agreed to launder funds. Again, he 

refers to his alleged arbitrage business. ECF No. 1 at 9. Sufficiency of 

the evidence is a ground that should have been raised on appeal. Movant 

makes no effort to show cause for failing to do so. Hogue, 131 F.3d at 

497. As discussed, Movant admitted under oath that he conspired with 

others to launder criminally-derived money. He cannot now pretend that 

he had no idea what was going on. The record is replete with facts 

showing that Movant knowingly and willingly joined the conspiracy to 

launder funds fleeced from victims of a romance scheme. CR ECF No. 

33. 

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 14th day of November 2022.

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