HOLMES v. USA

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. CR-23-56-R
) 	(CIV-25-704-R)
DARION HOLMES, 	)
)
Defendant. 	)
ORDER
Before the Court is Defendant Holmes’ pro se1 Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence.2 Mr. Holmes asserts five grounds for relief, which
are premised on arguments that he received ineffective assistance of counsel in violation
of the Sixth Amendment and that his conviction for being a felon in possession of a firearm
violates his rights under the Second Amendment. For the reasons explained below, the
Court finds that no hearing is needed and the Motion should be denied on the existing
record.
1 Because Petitioner is proceeding pro se, the Court affords his materials a liberal
construction but does not act as his advocate. Merryfield v. Jordan, 584 F.3d 923, 924 n.1
(10th Cir. 2009).
2 Defendant initiated this action by filing a “Notice of 2241 Motion” [Doc. No. 66] in the
United States District Court for the Eastern District of Pennsylvania. That Court construed
the motion as seeking relief under 28 U.S.C. § 2255 and transferred the action to this Court.
The Court informed Defendant that it intended to construe his filing as a motion under
§ 2255 and gave him an opportunity to withdraw it [Doc. No. 67]. Defendant then filed his
current motion [Doc. No. 68], a brief in support [Doc. No. 70], and an affidavit [Doc. No.
69] that raised additional grounds for relief. The Court has considered all of Defendant’s
filings and the government’s response brief [Doc. No. 82].
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RELEVANT BACKGROUND
Mr. Holmes entered a plea of guilty pursuant to a plea agreement to single count of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The plea
agreement [Doc. No. 27] provided that in exchange for pleading guilty, the government
would not further prosecute Mr. Holmes for any crimes related to his possession of firearms
from November 17, 2022 through November 30, 2022. Doc. No. 27 ¶ 20. The plea
agreement also states that the sentence is within the sole discretion of the Court, the
defendant has discussed the terms of the agreement with his attorney, he understands the
terms, and there are no other agreements that modify the terms. Id. ¶¶ 21-22. In his Petition
to Enter Plea of Guilty [Doc. No. 26], Mr. Holmes further indicated, under penalty of
perjury, that his plea was made voluntarily, he discussed the plea agreement with his
attorney and understood it, no promises other than those set out in the plea agreement had
been made, no attorney promised he would receive any form of leniency if he entered a
guilty plea, the sentence is solely a matter for the judge to decide, and the judge may impose
a sentence above the guidelines range.
Prior to sentencing, Mr. Holmes’ counsel lodged six objections to the presentence
report. He also submitted a lengthy brief in support of the objections and requested a
downward variance. See Doc. Nos. 36, 41. Counsel advocated in support of these
arguments at the sentencing hearing, which resulted in the Court sustaining some of the
objections. See Sentencing Tr. at p. 18-21. After considering all the relevant sentencing
factors and the parties’ arguments, the Court determined that an upward variance was
appropriate and sentenced Mr. Holmes to a 96-month term of imprisonment.
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Mr. Holmes filed an appeal challenging the substantive reasonableness of his
sentence, and the Tenth Circuit affirmed. United States v. Holmes, No. 23-6213, 2024 WL
3738442 (10th Cir. Aug. 9, 2024).
STANDARD
Under 28 U.S.C. § 2255, a prisoner in federal custody may challenge his sentence
on the basis that “the sentence was imposed in violation of the Constitution or laws of the
United States...or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The
movant is entitled to an evidentiary hearing on his claim, “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” Id. at §
2255(b). When ineffective assistance of counsel is the basis of a § 2255 claim, the
defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984). Under this test, a defendant must show both that his “counsel’s performance
was deficient” and that “the deficient performance prejudiced the defense.” Id.
A defendant can establish the first prong by showing that counsel performed below
the level expected from a reasonably competent attorney. Id. at 687–88. In evaluating
counsel’s performance, courts should make “every effort…to eliminate the distorting
effects of hindsight” and “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689.
To establish the second prong, a defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Id. The likelihood of a different result “must be
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substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). In the
context of a guilty plea, prejudice requires showing that “there is a reasonable probability
that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Importantly, this
involves an objective component: “proof of prejudice requires a petitioner to show that ‘a
decision to reject the plea bargain would have been rational under the circumstances.’”
Heard v. Addison, 728 F.3d 1170, 1184 (10th Cir. 2013) (quoting Padilla v. Kentucky, 559
U.S. 356, 372 (2010)) (emphasis in Padilla). Further, in the absence of other evidence,
courts should “remain suspicious of bald, post hoc and unsupported statements that a
defendant would have changed his plea absent counsel’s errors.” Id. at 1184.
If a defendant cannot show either “deficient performance” or “sufficient prejudice,”
his claim of ineffective assistance fails. Strickland, 466 U.S. at 700.
DISCUSSION
I. 	Ground One
In his first ground for relief, Mr. Holmes contends that he only entered a guilty plea
because his trial counsel promised him a sentence of 63-78 months and counsel did not
explain that he did not have the authority to make this promise. In support of this argument,
Defendant has submitted a signed document averring that his counsel promised a sentence
within the guidelines range and counsel “coached me to agree to what was in his best
interest.” The government has submitted an affidavit from defense counsel stating that he
did not make any promise regarding Mr. Holmes’ sentence.
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Mr. Holmes’ claim fails for two reasons. First, “[a] miscalculation or erroneous
sentence estimation by defense counsel is not a constitutionally deficient performance
rising to the level of ineffective assistance of counsel.” United States v. Gordon, 4 F.3d
1567, 1570 (10th Cir. 1993).
Second, Mr. Holmes’ contention that his counsel promised a specific sentence range
is directly refuted by the statements made in his plea documents. As outlined above, Mr.
Holmes repeatedly confirmed that he understood that the sentence is solely a matter for the
judge and that no promises other than those set out in the plea agreement had been made.
His conclusory, post-hoc assertion that there was an undisclosed promise are “completely
and conclusively refuted” by the representations made in connection with his plea and he
has not offered any “believable, valid reason” to disregard these statements. Hedman v.
United States, 527 F.2d 20, 22 (10th Cir. 1975). See also Blackledge v. Allison, 431 U.S.
63, 73–74 (1977) (“Solemn declarations in open court carry a strong presumption of verity.
The subsequent presentation of conclusory allegations unsupported by specifics is subject
to summary dismissal, as are contentions that in the face of the record are wholly
incredible.”); United States v. Hill, 635 F. App'x 536, 548 (10th Cir. 2015) (unpublished)
(“Hill repeatedly acknowledged accepting the plea agreement’s terms knowingly and
voluntarily, and he cannot now casually brush aside his many representations to the district
court.”); United States v. Farias, 268 F. App'x 730, 732 (10th Cir. 2008) (unpublished)
(“When measured against these specific statements in the plea agreement, Farias’s
conclusory allegations of ineffective assistance were clearly insufficient.”).
Ground One is therefore denied.
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II. 	Ground Two
In ground two, Mr. Holmes argues that his counsel provided ineffective assistance
by failing to request a hearing, object to errors in the presentence report, or object to an
upward variance in the sentence. Contrary to Mr. Holmes’s description, counsel raised
several objections to the presentence report, moved for a downward variance, and zealously
advocated for Mr. Holmes at the sentencing hearing. Further, counsel did not perform
deficiently by failing to raise the issue of prior notice of an upward variance because “the
court is not obligated to give advance notice that it is considering a variance based on the
18 U.S.C. § 3553(a) factors[.]” United States v. Lymon, 905 F.3d 1149, 1155 n.4 (10 th Cir.
2018). Mr. Holmes has not shown that counsel’s performance was deficient in any of these
respects or that he was prejudiced by any purported error.
Ground two is therefore denied.
III. 	Ground Three
In ground three, Mr. Holmes argues that Executive Order 14206 restores his Second
Amendment rights and requires his conviction to be vacated. This Executive Order “simply
tells the Attorney General to look over federal actions from 2021 to 2025 that might have
affected Second Amendment rights and come up with a plan to address them.” Ford v.
United States, No. 4:25-CV-00098-DN, 2025 WL 2661515, at *3 (D. Utah Sept. 17, 2025).
By its own terms, the Executive Order “does not[] create any right or benefit” and it has no
impact on Mr. Holmes’ conviction or sentence. See Exec. Order No. 14206, 90 Fed. Reg.
9503 (Feb. 12, 2025).
Ground three is therefore denied.
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IV. 	Grounds Four and Five
In his final grounds for relief, Mr. Holmes argues that his trial and appellate counsel
provided 	ineffective 	assistance 	by 	failing 	to 	raise 	an 	as-applied 	challenge 	to 	the
constitutionality of 18 U.S.C. § 922(g)(1) based on N.Y. State Rifle & Pistol Assn. v. Bruen,
142 S.Ct. 2111 (2022), and its progeny because his prior convictions were all non-violent
felonies.
The government contends that the claim against trial counsel is barred by a provision
of the plea agreement that waives the right to collaterally challenge the conviction and
sentence, “except with respect to claims of ineffective assistance of counsel.” Doc. No. 27
¶ 15. Although Mr. Holmes’ arguments are mainly couched as ineffective assistance of
counsel claims, the government argues that he is also attempting to collaterally challenge
the factual basis of his conviction.
A knowing and voluntary waiver of § 2255 rights in a plea agreement is generally
enforceable against a defendant. United States v. Cockerham, 237 F.3d 1179, 1181 (10 th
Cir. 2001). But the waiver will be “upheld only if (1) the issue before us falls within the
scope of the waiver, (2) the defendant knowingly and voluntarily waived his appellate
rights, and (3) enforcing the waiver will not result in a miscarriage of justice.” United States
v. Barger, 784 F. App'x 605, 607 (10th Cir. 2019). To the extent Mr. Holmes’ is attempting
to assert a free-standing challenge to his conviction under § 922(g)(1), the Court agrees
that the claim falls within the scope of the waiver. Defendant agreed to waive his right to
collaterally attack his conviction under § 2255 (except on the issue of counsel’s ineffective
assistance) and there is no evidence suggesting that agreement was not made knowingly
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and voluntarily. Further, Defendant has not presented any argument that might support a
finding that enforcement of the waiver would result in a miscarriage of justice. See United
States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004).
In any event, the claims asserted against trial and appellate counsel, even if outside
the scope of the waiver, fail on the merits. The Tenth Circuit has previously rejected a
similar challenge to the constitutionally of § 922(g)(1). Vincent v. Bondi, 127 F.4th 1263,
1266 (10th Cir. 2025). Mr. Holmes cannot show deficient performance or prejudice based
on counsel’s failure to raise a meritless argument as to the constitutionality of § 922(g)(1).
See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (recognizing that a defendant is typically not
prejudiced when his attorney fails to advise him of a defense that would not succeed at
trial); Sperry v. McKune, 445 F.3d 1268, 1275 (10th Cir. 2006) (explaining that trial
counsel was not ineffective for failing to raise a meritless argument). Grounds four and five
are therefore denied.
CONCLUSION
Accordingly, Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence is DENIED. Defendant’s Motion Requesting Copies of Documents and
Communications between the Government and Former Counsel Gary W. Wood [Doc. No.
77] is also DENIED. This motion seeks copies of the “evidence and Affidavit” that were
provided to the government by Mr. Wood. Mr. Wood’s affidavit is an exhibit to the
government’s response in opposition and Mr. Holmes has not shown that any further
discovery or production is warranted. Further, because the record conclusively shows that
the prisoner is entitled to no relief, an evidentiary hearing is not warranted.
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Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the Court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant for habeas relief. A certificate of appealability may issue only if the applicant has
made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where the district court rejects the claim on the merits, the petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds this
standard is not met in this case and a COA is therefore denied.
IT IS SO ORDERED this 20th day of February, 2026.
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