MICHAEL 

vs. 

UNITED 

:1c-:·cocnT· ---~= 

'· ;-rt lC r OF TE.Xr\S 

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

,! DEC 2 I 2022 I 

CLEnJC, U .. ~. Dl~:Tl<lCTCOTJRT 

DASEAN ROBINSON, § 

§ 

Movant, § 

§ 

§ NO. 4:22-CV-890-A 

§ (NO. 4: 19-CR-098-A) 

STATES OF AMERICA, § 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Came on for consideration the motion of Michael Dasean 

Robinson, 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 reply, 1 the 

record, including the record in the underlying criminal case, 

and applicable authorities, finds that the motion must be 

denied. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On April 3, 2019, movant was named in a one-count 

information charging him with conspiracy to possess with intent 

to distribute 100 grams or more of a mixture and substance 

1 The court has considered the reply even though it greatly exceeds the applicable page limitation. See Local Civil 

Rule LR 7.2(c). However, the court is not considering arguments made for the first time in the reply. 

Case 4:22-cv-00890-A Document 11 Filed 12/21/22 Page 1 of 13 PageID 109
containing a detectable amount of heroin, in violation of 21 

U.S.C. § 846. CR Doc.' 15. On April 12, 2019, movant and his 

attorney appeared before the court for arraignment. CR Doc. 21. 

Movant and his attorney signed a waiver of indictment, CR Doc. 

22, and a factual resume. CR Doc. 23. The factual resume set 

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 Doc. 23. Movant testified 

under oath 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; his term of 

imprisonment would be at least five years and could be as much 

as forty years; he understood the elements of the offense and he 

admitted that all of them existed; he had read and understood 

the information and waived the return of an indictment; he had 

2 The "CR Doc .. ~n reference is to the number of the item on the docket in the underlying criminal case, No. 4: l 9-

CR-098-A. 

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Case 4:22-cv-00890-A Document 11 Filed 12/21/22 Page 2 of 13 PageID 110
read and understood the factual resume and understood everything 

in it; he was satisfied with his representation; no threats or 

promises had been made to induce him to plead guilty; and, the 

stipulated facts in the factual resume were true. CR Doc. 67. 

The probation officer prepared the PSR, which reflected 

that movant's base offense level was 28. CR Doc. 26, 1 28. He 

received a two-level increase for possession of firearms, id. 

1 29, a two-level increase for maintaining a drug premises, id. 

1 30, and a two-level increase for being an organizer, leader, 

manager, or supervisor. Id. 1 32. He received a two-level and a 

one-level reduction for acceptance of responsibility. Id. 11 36, 

37. Based on a total offense level of 31 and a criminal history 

category of IV, movant's guideline imprisonment range was 151 to 

181 months. Id. 1 88. The PSR also included a discussion of 

factors that might warrant upward departure and factors that 

might warrant a sentence outside the guideline system. Id. 

11 102-05. Movant filed objections, CR Doc. 28, and the 

probation officer prepared an addendum to the PSR, CR Doc. 31, 

and a second addendum. CR Doc. 35. Movant filed objections to 

the addendum. CR Doc. 38. 

On September 26, 2019, the court sentenced movant to a term 

of imprisonment of 340 months, an upward variance. CR Doc. 59. 

Among other things, the court noted that movant had been 

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operating a superstore of drugs over a number of years, 

encouraging people to refer others to him to obtain drugs that 

had the potential to cause death in almost every instance. CR 

Doc. 68 at 97-98. Movant also had a very serious criminal 

history. Id. at 98-103. The drugs movant had provided caused the 

deaths of two persons. Id. at 103. Movant appealed. CR Doc. 61. 

The judgment was affirmed. United States v. Robinson, 843 F. 

App'x 607 (5th Cir. 2021). His petition for writ of certiorari 

was denied. Robinson v. United States, 142 s. Ct. 297 (2021). 

II. 

Grounds of the Motion 

Movant asserts three grounds in support of his motion, all 

based on alleged ineffective assistance of counsel. First, he 

would not have pled guilty but for counsel's bad advice. Doc. 3 1 

at PageID1 4; Doc. 2 at 3-11. Second, movant's counsel failed to 

object to statements of a witness who was unavailable to 

testify. Doc. 1 at PageID 5; Doc. 2 at 12-21. And, third, 

counsel failed to present any objection to the drug quantity set 

forth in the PSR and adopted by the court. Doc. 1 at PageID 7; 

Doc. 2 at 21-27. 

3 The "Doc._" reference is to the number of the item on the docket in this civil action. 4 The "PagelD _,, reference refers to the page number assigned by the courfs electronic filing system and is used 

because the printed page number on the form used by movant is not the actual page number, 

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III. 

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, 164-165 (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 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 'are raised and considered on direct appeal, a 

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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 Claims 

To prevail on an ineffective assistance of counsel claim, 

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 

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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). 

IV. 

Analysis 

In support of his first ground, movant alleges that his 

counsel promised him that if he pled guilty to the information, 

"the government could not and would not use the deaths of B.F. 

and R. B. in sentencing [movant] . " Doc. 1 at Page ID 4. He also 

refers to this as a verbal promise from the government not to 

use the deaths in sentencing. Doc. 2 at 3. He additionally 

complains that counsel did not object to the determination in 

the PSR that movant was responsible for the two deaths. Nor did 

counsel object to the government's motion for an upward 

departure or variance. Doc. 1 at PageID 4. In sum, he says 

counsel was deficient in two ways: (1) failing to object to the 

use or consideration of the two deaths for sentencing purposes 

based on the agreement from the government, and (2) failing to 

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file a motion to withdraw the guilty plea based on the breach of 

the verbal agreement by the government. Doc. 2 at 3. 

The allegation that the government promised or had an 

agreement that movant would not be held responsible for the two 

deaths or that his counsel made such a promise to induce him to 

plead guilty is belied by the record. Movant testified under 

oath at arraignment that he understood that: he should not 

depend or rely on any statement or promise by anyone as to what 

penalty would be assessed against him; the court was not bound 

by facts that were stipulated by the parties and could impose 

punishment that might disregard any stipulated facts or take 

into account facts not mentioned in the stipulated facts; he 

faced a maximum sentence of forty years; and, he would still be 

bound by his guilty plea even if his sentence was higher than 

anticipated. He further testified that he did not have any deal, 

understanding, or agreement of any kind, either directly or 

through his attorney, with the government and no one had used 

any force or made any promise or assurance of any kind to induce 

him to enter a plea of guilty. CR Doc. 67. ''Solemn declarations 

in open court carry a strong presumption of verity." Blackledge 

v. Allison, 431 U.S. 63, 74 (1977). The factual resume, 

reflecting that movant was subject to a forty-year term of 

imprisonment, is likewise entitled to the presumption. United 

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States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994); Hobbs v. 

Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985). 

For a defendant who seeks habeas relief on the basis of 

alleged promises inconsistent with representations he made in 

open court when entering his plea of guilty to prevail, he must 

prove: "(1) the exact terms of the alleged promise, (2) exactly 

when, where, and by whom the promise was made, and (3) the 

precise identity of the eyewitness to the promise." United States 

v. Cervantes, 132 F. 3d 1106, 1110 (5th Cir. 1998) . To be 

entitled to an evidentiary hearing, the defendant must produce 

"independent indicia of the likely merit of [his] allegations, 

typically in the form of one or more affidavits from reliable 

third parties." Id. "If, however, the defendant's showing is 

inconsistent with the bulk of [his] conduct or otherwise fails 

to meet [his] burden of proof in the light of other evidence in 

the record, an evidentiary hearing is unnecessary." Id. See also 

United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985). 

Movant's 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). 

Movant has failed to provide any independent evidence in support 

of any of his contentions that are at variance with the 

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statements he made, or the answers he gave, while under oath at 

the arraignment hearing. 

In support of his second ground, movant alleges that 

counsel was ineffective during sentencing because he failed to 

object to the court's reliance on statements of a witness who 

was unavailable to testify. Doc. 1 at PageID 5. He recognizes 

that counsel objected to the upward variance based on the 

deaths, but contends that counsel should have objected on 

confrontation clause grounds. Doc. 2 at 12. He refers to 

Crawford v. Washington, 541 U.S. 36 (2004), Doc. 2 at 15, but 

the Fifth Circuit has clearly held that there is no Crawford 

violation when hearsay testimony is used at sentencing as 

opposed to trial. United States v. Beydoun, 469 F.3d 102, 108 

(5th Cir. 2006). Hearsay is admissible for sentencing purposes. 

United States v. Young, 981 F.2d 180, 187 (5th Cir. 1992). A 

defendant's confrontation rights at sentencing are severely 

restricted. Id. at 188. Due process merely requires that the 

information relied upon have some minimal indicium of 

reliability and bear some rational relationship to the decision 

to impose the particular sentence. Id. at 187. Here, movant had 

notice of the evidence and of the court's intent to vary 

significantly. CR Docs. 50, 51, 53. Movant had a full 

opportunity to make his objections known and to present evidence 

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in support of his position and did so. CR Doc. 68. In fact, the 

sentencing was twice continued for his convenience. CR Docs. 41, 

47. 

Even if counsel's representation was somehow defective, and 

it was not, movant could not establish prejudice in any event. 

Movant was held accountable for the deaths of two persons: B.F., 

who died from heroin movant supplied, and R.B., who committed 

suicide after his girlfriend, B.F., died. The undersigned stated 

at sentencing that the sentence was the one he would impose even 

had he not made a finding of causation between R.B.'s suicide 

and the heroin movant supplied. The Fifth Circuit determined 

that the sentence imposed was appropriate. Robinson, 843 F. 

App'x 610. 

Finally, in support of his third ground, movant contends 

that his counsel was ineffective in failing to object to the 

drug quantity determination as set forth in the PSR. Doc. 1 at 

PageID 7. To prevail, movant must show that the information 

relied upon by the court was materially untrue. United States v. 

Valencia, 44 F.3d 269, 274 (5th Cir. 1995); United States v. 

Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). This he has not 

done. Mere objections do not suffice as competent evidence. 

United States v. Dinh, 920 F.3d 307, 314 (5th Cir. 2019). Even 

if investigators did not specifically corroborate statements of 

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a co-conspirator, the movant must still show that it was 

implausible that the statements were accurate. United States v. 

Kearby, 943 F.3d 969, 975 (5th Cir. 2019). That is, a fact 

finding is not clearly erroneous as long as it is plausible in 

light of the record as a whole. United States v. Alford, 142 

F.3d 825, 831 (5th Cir. 1998). The record supports the 

calculation of drugs attributable to movant. Moreover, and in 

any event, movant's sentence was not so much based on the 

quantity of drugs he sold; rather, the court determined that the 

guideline range vastly understated the seriousness of movant's 

conduct, including causing the death of B.F. 5 There is simply no 

reason to believe, and movant cannot demonstrate, that had his 

counsel objected to the drug-quantity calculation, the outcome 

of the proceedings would have been different. See Koch v. 

Puckett, 907 F.2d 524, 527 (5th Cir. 1990). 

V. 

Order 

The court ORDERS that all relief sought by movant in his 

motion under 28 U.S.C. § 2255 be, and is hereby, denied. 

Pursuant to Rule 22(b) of the Federal Rules of Appellate 

Procedure, Rule ll(a) of the Rules Governing Section 2255 

5 Other examples ofrnovant's conduct-including brutally beating a pregnant woman who then suffered a 

miscarriage--- are set forth in the appellate opinion. See Robinson, 843 P. App'x at 609. 

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Proceedings for the United States District Courts, and 28 U.S.C. 

§ 2253 (c) (2), for the reasons discussed herein, the court further 

ORDERS that a certificate of appealability be, and is hereby, 

denied, as movant has not made a substantial showing of the 

denial of a constitutional right. 

SIGNED December 21, 2022. 

JOH 

r United ict Judge 

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