United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
Curry, Jr. ("Curry" or “Petitioner”), a
federal prisoner proceeding pro se, has filed a
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (Doc. 85). The Court has referred the
petition to the undersigned Magistrate Judge who, under S.D.
Ala. GenLR 72(a)(2)(R), is authorized to require responses,
issue orders to show cause and any other orders necessary to
develop a complete record, and to prepare a report and
recommendation to the District Judge as to appropriate
disposition of these proceedings brought under 28 U.S.C.
§ 2255, in accordance with 28 U.S.C. § 636(b)(1)
and Rules 8(b) and 10 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
See S.D. Ala. GenLR 72(b); (3/20/2017 electronic
United States has timely filed a response (Doc. 87) in
opposition to Curry's § 2255 motion, to which Curry
has not responded. The motion is now under submission for
determination of whether expansion of the record and/or an
evidentiary hearing is warranted. See Rules 7 and
8(a) of the Rules Governing Section 2255 Proceedings for the
United States District Courts.
reviewed the parties' submissions in accordance with Rule
8(a) of the Rules Governing Section 2255 Proceedings, the
undersigned finds that neither expansion of the record nor an
evidentiary hearing is not warranted and
RECOMMENDS that Curry's § 2255
motion (Doc. 85) is due to be DISMISSED with
undersigned further RECOMMENDS that
Curry's Motion for Summary Judgment (Doc. 89) is due to
25, 2015, a federal grand jury indicted Curry for possessing
a firearm as a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). After pleading not guilty to the charge,
Curry proceeded to trial, where he was found guilty and
sentenced to 84 months' imprisonment on February 16,
2016. The district court imposed this sentence after
assessing both a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B) for possessing a firearm in connection
with another felony and a two-level enhancement pursuant to
§ 3C1.1 for obstruction of justice.
appealed his conviction and sentence raising three arguments.
First, he claimed insufficient evidence to support the
jury's finding that he constructively possessed the
firearm. Second, he claimed that the district court erred in
assessing the § 2K2.1(b)(6) enhancement because: (1) the
information contained in the Presentence Investigation Report
(“PSR”) was not presented or admitted during the
trial, and (2) the district court used facts relating to a
white powder seized from his vehicle to apply the enhancement
even though the government agreed not to pursue inquiry into
the substance at trial. Third, he claimed the district court
erred in assessing the obstruction of justice enhancement
simply because the jury discredited his testimony. On
February 9, 2017, the Eleventh Circuit Court of Appeals
affirmed the decision of the district court in an unpublished
opinion (Docs. 82-83), and the United States Supreme Court
denied writ of certiorari on June 12, 2017. (Doc. 84).
timely filed the instant petition, a Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 85), pursuant to 28 U.S.C.
§ 2255, on September 19, 2017,  challenging trial
counsel's assistance in four respects: (1) that counsel
failed to request the police “dashcam” video, (2)
failed to object to the obstruction of justice enhancement,
(3) failed to argue that the firearm could have been
co-defendant's, and (4) failed to object to the weapon
lacking the elements of a firearm pursuant to 26 U.S.C.
§ 2255 Motion.
28 U.S.C. § 2255 "permits a federal prisoner to
bring a collateral challenge by moving the sentencing court
to vacate, set aside, or correct the sentence."
Winthrop-Redin v. United States, 767 F.3d 1210,
1215-16 (11th Cir. 2014). Specifically, § 2255 provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence ... If the court finds that the judgment was
rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.
28 U.S.C. § 2255(a)-(b).
the defendant's chance to appeal has been waived or
exhausted," a court is "entitled to presume he
stands fairly and finally convicted, especially when, as
here, he already has had a fair opportunity to present his
federal claims to a federal forum." United States v.
Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed. 2D
816 (1982). "[A] collateral challenge, such as a §
2255 motion, may not be a surrogate for a direct
appeal." Lynn v. United States, 365 F.3d 1225,
1232 (11th Cir. 2004) (per curiam) (citing Frady,
456 U.S. at 165 (collecting cases)). "Because collateral
review is not a substitute for a direct appeal, the general
rules have developed that: (1) a defendant must assert all
available claims on direct appeal, and (2) relief under 28
U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for that narrow compass of other
injury that could not have been raised in direct appeal and
would, if condoned, result in a complete miscarriage of
justice." Id. at 1232 (internal citations,
quotations, and footnote omitted).
Once a petitioner files a § 2255 motion, "[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court
shall ... grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto." [28 U.S.C.] § 2255(b). A
petitioner is entitled to an evidentiary hearing if he
"alleges facts that, if true, would entitle him to
relief." Aron[ v. United States], 291
F.3d [708, ] 715[ (11th Cir. 2002)] (quoting Holmes v.
United States, 876 F.2d 1545, 1552 (11th Cir. 1989)).
"[A] petitioner need only allege-not
prove-reasonably specific, non-conclusory facts that, if
true, would entitle him to relief." Id. at 715
n.6. However, a district court need not hold a hearing if the
allegations are "patently frivolous," "based
upon unsupported generalizations," or
"affirmatively contradicted by the record."
Holmes, 876 F.2d at 1553 (quoting United States
v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979));
see, e.g., Lynn v. United States, 365 F.3d 1225,
1239 (11th Cir. 2004) ("Because the ... affidavits
submitted by Lynn amount to nothing more than mere conclusory
allegations, the district court was not required to hold an
evidentiary hearing on the issues and correctly denied
Lynn's § 2255 motion.").
Winthrop-Redin, 767 F.3d at 1216 (footnote omitted).
Accord, e.g., Diveroli v. United States,
803 F.3d 1258, 1263 (11th Cir. 2015). The Court must
"liberally construe pro se filings, including
pro se applications for relief pursuant to §
2255." Winthrop-Redin, 767 F.3d at 1215.
Ineffective Assistance of Counsel
Sixth Amendment gives criminal defendants the right to
effective assistance of counsel. U.S. Const., amend. VI;
Strickland v. Washington, 466 U.S. 668, 684-86, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To establish an
ineffective assistance of counsel claim, a defendant must
show that (1) 'counsel's representation fell below an
objective standard of reasonableness' and (2) that such
failure prejudiced him in that 'there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.'" United States v. Pease, 240
F.3d 938, 941 (11th Cir. 2001) (per curiam) (quoting
Strickland, 466 U.S. at 687-88, 694).
"'Conclusory allegations of ineffective assistance
are insufficient.'" Wilson v. United
States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam)
(quoting United States v. Lawson, 947 F.2d 849, 853
(7th Cir. 1991)). "Because both parts of the test must
be satisfied in order to show a violation of the Sixth
Amendment, the court need not address the performance prong
if the defendant cannot meet the prejudice prong, or vice
versa." Holladay v. Haley, 209 F.3d 1243, 1248
(11th Cir. 2000) (citation omitted). See also Osley v.
United States, 751 F.3d 1214, 1222 (11th Cir. 2014)
("A habeas petitioner claiming ineffective assistance of
counsel must carry his burden on both Strickland
prongs, and a court need not address both prongs if the
defendant has made an insufficient showing on one.").
evaluating the first, or "performance," prong of
Strickland, "[j]udicial scrutiny of
counsel's performance must be highly deferential."
Strickland, 466 U.S. At 689. Because retrospective
evaluation of a lawyer's performance can be difficult,
"a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that ... the challenged action
might be considered sound trial strategy." Id.
(internal quotations omitted). A petitioner must identify
specific acts or omissions that were not the result of
reasonable professional judgment, and a court should deem
these acts or omissions deficient only if they "were
outside the wide range of professionally competent
assistance." Id. at 690. Simply put, the
deference afforded an attorney's decision is great and
the bar for proving a Sixth Amendment violation is high. In
light of the "strong presumption in favor of
competence," we have held that in order to prove
deficient performance, "a petitioner must establish that
no competent counsel would have taken the action that his
counsel did take." Chandler v. United States,
218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).
Under the second, or "prejudice," prong of
Strickland, a petitioner must "affirmatively
prove prejudice" by showing that counsel's errors
"actually had an adverse effect on the defense."
466 U.S. at 693, 104 S.Ct. at 2067. This requires a showing
of more than "some conceivable effect on the outcome of
the proceeding." Id. Instead, the petitioner
"must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694, 104
S.Ct. at 2068. Although this standard is difficult to meet,
it is significant that a petitioner must show only a
reasonable probability that the outcome would have been
different; he "need not show that counsel's
deficient conduct more likely than not altered the outcome in
the case." Id. at 693, 104 S.Ct. at 2068. When
evaluating this probability, "a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury." Id. at 695,
104 S.Ct. at 2069.
Brownlee v. Haley, 306 F.3d 1043, 1059-60 (11th Cir.
to raise an ineffective-assistance-of-counsel claim on direct
appeal does not bar the claim from being brought in a later,
appropriate proceeding under § 2255." Massaro
v. United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 155
L.Ed. 2D 714 (2003). Indeed, "in most cases a motion
brought under § 2255 is preferable to direct appeal for
deciding claims of ineffective assistance." Id.
at 504. See also United States v. Curbelo, 726 F.3d
1260, 1267 (11th Cir. 2013) ("An ineffective assistance
claim should usually be raised in a motion under 28 U.S.C.
§ 2255." (citing United States v.
Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010))),
cert. denied, 134 S.Ct. 962, 187 L.Ed.2d 822 (2014).
previously discussed, Curry raises four ineffective
assistance of counsel claims as grounds for relief. These
claims are addressed in turn.
Counsel failed to Investigate ...