United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
Bush Gordon (“Gordon” 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 and supporting
memorandum (Docs. 48-49). The motion has been referred for
appropriate action 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)(B)-(C), Rule 10 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
See S.D. Ala. GenLR 72(b); (10/25/2016 electronic
conducting preliminary review in accordance with Rule 4(b) of
the Rules Governing Section 2255 Proceedings, the undersigned
entered an order setting deadlines for the United States to
respond to the motion, and for Gordon to reply. (Doc. 50). As
the United States has timely filed its response (Doc. 53) and
Gordon has timely filed his reply (Doc. 56), the § 2255
motion is now under submission.
reviewed the parties' submissions in accordance with Rule
8 of the Rules Governing Section 2255 Proceedings, the
undersigned finds that an evidentiary hearing is not
warranted and that Gordon's § 2255 motion (Doc. 47)
is due to be DENIED and DISMISSED
with prejudice. The undersigned further finds that
Gordon is not entitled to a certificate of appealability or
to proceed in forma pauperis on appeal.
2015, Gordon pled guilty to one count of possessing a firearm
as a prohibited person (felon), and one count of possessing a
firearm during a drug trafficking crime, in violation to 18
U.S.C. §§ 922(g) and 924(c), respectively. (Docs.
32, 25). On October 21, 2015, Gordon was sentenced to 130
months in the custody of the Bureau of Prisons, which
consisted of 70 months for the § 922(g) conviction, and
a consecutive 60 month sentence for the § 924(c)
conviction. (Doc. 44). Gordon did not file a direct appeal.
Gordon's § 2255 motion, which raises five claims of
ineffective assistance of counsel, and one claim that his
right to counsel was violated, was dated October 13, 2016,
and docketed October 17, 2016. (Docs. 48-49). Accordingly,
his motion is timely pursuant to 28 U.S.C. § 2255(f)(1).
General Standards in § 2255 Proceedings
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.
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 (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).
Under the procedural default rule, a defendant generally must
advance an available challenge to a criminal conviction or
sentence on direct appeal or else the defendant is barred
from presenting that claim in a § 2255 proceeding.
McCoy v. United States, 266 F.3d 1245, 1258 (11th
Cir. 2001); Jones v. United States, 153 F.3d 1305,
1307 (11th Cir. 1998); Mills[ v. United
States], 36 F.3d [1052, ] 1055[ (11th Cir. 1994)];
Greene v. United States, 880 F.2d 1299, 1305 (11th
Cir. 1989). This rule generally applies to all claims,
including constitutional claims. See Reed v. Farley,
512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277
(1994) (“Where the petitioner-whether a state or
federal prisoner-failed properly to raise his claim on direct
review, the writ is available only if the petitioner
establishes cause for the waiver and shows actual prejudice
resulting from the alleged violation.” (internal
quotation marks, punctuation, and citations omitted));
see also Wainwright v. Sykes, 433 U.S. 72, 84, 97
S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977) (applying cause and
prejudice standard to constitutional claims).
A defendant can avoid a procedural bar only by establishing
one of the two exceptions to the procedural default rule.
Under the first exception, a defendant must show cause for
not raising the claim of error on direct appeal and
actual prejudice from the alleged error. Bousley v.
United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611,
140 L.Ed.2d 828 (1998); Mills, 36 F.3d at 1055;
Cross v. United States, 893 F.2d 1287, 1289 (11th
Cir. 1990); Greene, 880 F.2d at 1305; Martorana
v. United States, 873 F.2d 283, 284 (11th Cir. 1989);
Parks v. United States, 832 F.2d 1244, 1246 (11th
Cir. 1987). Under the second exception, a court may allow a
defendant to proceed with a § 2255 motion despite his
failure to show cause for procedural default if “
‘a constitutional violation has probably resulted in
the conviction of one who is actually innocent.' ”
Mills, 36 F.3d at 1055 (quoting Murray v.
Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91
L.Ed.2d 397 (1986)); see also Bousley, 523 U.S. at
622, 118 S.Ct. at 1611; Jones, 153 F.3d at 1307.
Id. at 1234-35 (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).
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
(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)). Moreover, “[b]ecause 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.”);
Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.
2001) (“The petitioner bears the burden of proof on the
‘performance' prong as well as the
‘prejudice' prong of a Strickland claim,
and both prongs must be proved to prevail. The
Strickland test is not easily met; as we have said,
‘the cases in which habeas petitioners can properly
prevail on the ground of ineffective assistance of counsel
are few and far between.' ” (quoting Waters
v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc)
test for ineffectiveness is not whether counsel could have
done more; perfection is not required.” Waters v.
Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995) (en banc).
“A lawyer can almost always do something more in every
case. But the Constitution requires a good deal less than
maximum performance.” Atkins v. Singletary,
965 F.2d 952, 960 (11th Cir. 1992). Accord, e.g.,
Burt v. Titlow, 134 S.Ct. 10, 18 (2013)
(“[T]he Sixth Amendment does not guarantee the right to
perfect counsel; it promises only the right to effective
In 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, 104 S.Ct. at 2065.
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, 104 S.Ct.
at 2066. 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
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 (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 ...