United States District Court, M.D. Alabama, Eastern Division
SHEDRICK D. HOLLIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
the court is petitioner Shedrick D. Hollis's
(“Hollis”) pro se motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence by a
person in federal custody. Doc. No. 1.
March 2013, a jury found Hollis guilty of two counts of
possession of a controlled substance with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1)
(Counts 1 and 2); one count of possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count 3); and one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) & 924(e) (Count 4). Doc. No.
15-26. After a sentencing hearing on August 6, 2013, the
district court sentenced Hollis to 420 months in prison,
consisting of concurrent terms of 360 months on Counts 1, 2,
and 4 and a consecutive term of 60 months on Count 3. Doc.
No. 15-27; Doc. No. 1-7 at 1-2.
appealed, arguing that (1) the district court erred in
denying his motion to suppress the drug and firearm evidence
found in the apartment where he was arrested; and (2) the
district court abused its discretion by excluding testimony
from the defense's forensic expert regarding the
sufficiency of a latent fingerprint for comparison.
See Doc. No. 15-29. On March 12, 2105, the Eleventh
Circuit issued an opinion affirming Hollis's convictions
and sentence. United States v. Hollis, 780 F.3d 1064
(11th Cir. 2015); Doc. No. 15-30. Hollis filed a petition for
writ of certiorari in the United States Supreme Court, which
that court denied on October 5, 2015. Doc. No. 15-31.
5, 2016, Hollis filed this § 2255 motion asserting the
1. His counsel rendered ineffective assistance by failing to
(a) investigate the defense's forensic expert to
determine if he was qualified as an expert in latent
fingerprint analysis; (b) object on Confrontation Clause
grounds to testimony by the Government's expert in latent
fingerprint analysis; (c) cross-examine the Government's
fingerprint expert about deficiencies in the FBI system of
fingerprint analysis; and (d) call as a witness a second
examiner who analyzed fingerprint evidence in the case.
2. His counsel rendered ineffective assistance by failing to
(a) object to the § 924(c) count in the indictment on
grounds that (i) it was duplicitous, and (ii) it did not
include as an element that the firearm possession had to be
in furtherance of, or in aid of, the drug trafficking crime;
and (b) object to the district court's jury instruction
on the § 924(c) count on grounds that (i) it
criminalized two separate offenses, and (ii) it did not
inform the jury that the firearm possession had to be in aid
of the drug trafficking crime.
3. His counsel rendered ineffective assistance by failing to
(a) move to suppress the seized evidence on grounds that law
enforcement conducted an unlawful search incident to arrest
under the standard of Chimel v. California, 395 U.S.
752 (1999), and for failing to request a suppression hearing
on this same theory; (b) move to suppress on grounds that the
evidence was fruit of the poisonous tree obtained through
police misconduct; and (c) file a motion in limine or to
suppress the drug evidence on grounds it was mishandled by
4. His counsel rendered ineffective assistance by failing to
impeach various witnesses regarding inaccuracies, conflicts,
and inconsistencies in their testimony.
5. His counsel rendered ineffective assistance by failing to
have the drug evidence reweighed and reanalyzed.
6. His counsel rendered ineffective assistance by failing to
request a jury instruction on possession of small amounts of
a controlled substance under 21 U.S.C. § 844(a) and
allowing the court to instruct the jury on a § 841(a)(1)
7. His counsel at his first trial was ineffective for
requesting a mistrial.
8. His counsel rendered ineffective assistance by failing to
request a reduction in his offense level based on acceptance
of responsibility under U.S.S.G. § 3E1.1.
9. His counsel rendered ineffective assistance by failing to
argue he was actually innocent of all criminal conduct except
for possession of marijuana.
10. His counsel rendered ineffective assistance by failing to
argue that his prior drug convictions could not be used to
enhance his sentence under the career offender guideline and
under the Armed Career Criminal Act.
11. His counsel rendered ineffective assistance by failing to
request a two-level reduction to his offense level based on
Amendment 782 to the Sentencing Guidelines.
12. His appellate counsel rendered ineffective assistance by
failing to (a) raise various claims of ineffective assistance
of trial counsel; (b) pursue the issue that the district
court abused its discretion by excluding testimony from the
defense's forensic expert regarding the sufficiency of a
latent fingerprint for comparison; and (c) argue that the
evidence was insufficient to sustain his convictions.
Doc. No. 1 at 4-10; Doc. No. 1-1 through 1-3; Doc. No. 2 at
reasons that follow, the court concludes that Hollis's
§ 2255 motion should be denied without an evidentiary
hearing and this action be dismissed with prejudice. Rule
8(a), Rules Governing Section 2255 Proceedings in the
United States District Courts.
General Standard of Review
collateral review is not a substitute for direct appeal, the
grounds for collateral attack on final judgments under 28
U.S.C. § 2255 are limited. A prisoner may have relief
under § 2255 if the court imposed a sentence that (1)
violated the Constitution or laws of the United States, (2)
exceeded its jurisdiction, (3) exceeded the maximum
authorized by law, or (4) is otherwise subject to collateral
attack. See 28 U.S.C. § 2255; United States
v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000);
United States v. Walker, 198 F.3d 811, 813 n.5 (11th
Cir. 1999). “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.'”
Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004) (citations omitted).
Claims of Ineffective Assistance of Counsel
of ineffective assistance of counsel is evaluated against the
two-part test announced in Strickland v. Washington,
466 U.S. 668 (1984). First, a petitioner must show that
“counsel's representation fell below an objective
standard of reasonableness.” Id. at 689.
Second, 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.” Id. at 694. See
Chandler v. United States, 218 F.3d 1305, 1313 (11th
of counsel's performance is “highly deferential,
” and the court indulges a “strong
presumption” that counsel's performance was
reasonable. Chandler, 218 F.3d at 1314 (internal
quotation marks omitted). The court will “avoid
second-guessing counsel's performance: It does not follow
that any counsel who takes an approach [the court] would not
have chosen is guilty of rendering ineffective
assistance.” Id. (internal quotation marks and
brackets omitted). “Given the strong presumption in
favor of competence, the petitioner's burden of
persuasion-though the presumption is not insurmountable-is a
heavy one.” Id.
noted, under the prejudice component of Strickland,
a 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.” Strickland, 466 U.S. at 694. A
“reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. The
prejudice prong does not focus only on the outcome; rather,
to establish prejudice, the petitioner must show that
counsel's deficient representation rendered the result of
the trial fundamentally unfair or unreliable. See
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)
(“[A]n analysis focusing solely on mere outcome
determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is
defective.”). “Unreliability or unfairness does
not result if the ineffectiveness of counsel does not deprive
the defendant of any substantive or procedural right to which
the law entitles him.” Id. at 372.
a petitioner satisfies the showings required on both prongs
of the Strickland inquiry, relief should be denied.
Strickland, 466 U.S. at 687. Once a court decides
that one of the requisite showings has not been made, it need
not decide whether the other one has been. Id. at
697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir.
criminal defendant's right to effective assistance of
counsel continues through direct appeal. See Evitts v.
Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance
of appellate counsel may be shown if the movant can
“establish . . . that counsel omitted significant and
obvious issues while pursuing issues that were clearly and
significantly weaker[.] Generally, only when ignored issues
are clearly stronger than those presented, will the
presumption of effective assistance of counsel be
overcome.” Mayo v. Henderson, 13 F.3d 528, 533
(2d Cir. 1994).
Ineffective-Assistance Claims Related to Fingerprint
Failure to investigate defense's own
claims his trial counsel was ineffective for failing to
investigate the defense's forensic expert to determine if
he was qualified as an expert in latent fingerprint analysis.
Doc. No. 1 at 4; Doc. No. 2 at 2-5.
search of the apartment where Hollis was arrested, officers
discovered about a pound of cocaine, large amounts of
marijuana, crack cocaine, ecstasy, scales, and about $5, 000
in cash. One scale had a latent fingerprint on it attributed
to Hollis by the Government's expert in latent
fingerprint analysis. Hollis's counsel hired a forensic
expert, Lawden Yates, Jr., with the purpose of presenting
testimony from Yates that the latent fingerprint found on the
scale was not sufficiently clear for examination and
comparison. As summarized by the Eleventh Circuit in its
opinion in Hollis's direct appeal:
Before trial, the government moved to exclude the testimony
of Hollis's fingerprint expert, Lawden Yates, Jr. The
government requested a hearing to confirm Yates's
qualifications under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). The district court held a hearing and
ruled that Yates could not testify “as to fingerprint
comparison.” But the district court reserved judgment
on whether Yates could testify about whether the latent
fingerprint was of sufficient quality to make a comparison.
Yates later testified that there “shouldn't be
any” difference between the expertise required to
compare fingerprints and the expertise used to judge the
sufficiency of a latent fingerprint for comparison. He also
testified that when in doubt, a technician should send a
print to the laboratory to see if an identification can be
made. Because the district court had already ruled that Yates
was not qualified to testify about fingerprint comparisons
and the same expertise was required to judge the sufficiency
of a latent print for comparison, the district court ruled
that Yates could not testify about the sufficiency of the
print taken from the scale.
United States v. Hollis, 780 F.3d 1064, 1067 (11th
affidavit addressing Hollis's present claim of
ineffective assistance, Hollis's trial counsel Richard M.
Kemmer, Jr. avers:
I employed Lawden Yates as an expert to assist me in the
trial of the Hollis case. Mr. Yates is the former lab
director for the Alabama Department of Forensic Sciences and
was familiar with the general science of fingerprint
analysis. I did not have the funds to employ fingerprint
analysts to assist me in this trial. Mr. Yates was primarily
an expert regarding firearms, and the fact that no prints
were found on the firearms seized from the residence was a
main point in our defense. I fully investigated Yates and he
came highly recommended from other criminal defense lawyers
within the state. He has since assisted me in two major
felony trials, one of which resulted in an acquittal based
primarily upon Mr. Yates' testimony.
The issue regarding the court disallowing Yates'
testimony was appealed to the Eleventh Circuit Court of
Appeals and the Appeals Court affirmed the ruling of
[District Court] Judge Watkins.
I was not aware as trial counsel, nor was Mr. Shelnutt,
any additional fingerprint experts who were willing to assist
It should be noted that Mr. Yates provided valuable insight
and support which allowed me to cross-examine the government
expert with regard to fingerprint analysis.
Doc. No. 4 at 1-2 (numbering of paragraphs omitted; footnote
does nothing to substantiate his cursory allegation that his
counsel failed to investigate Yates to determine if he was
qualified as an expert in latent fingerprint analysis. That
the district court ultimately ruled that Yates was not
qualified to testify about the sufficiency of the latent
fingerprint for comparison does not establish that
Hollis's counsel performed unreasonably in attempting to
use Yates-a forensic scientist familiar with the general
science of fingerprint analysis-as an expert in the field,
particularly when there appeared to be no other experts
willing to testify that the latent print was insufficient to
be used for comparison. Moreover, Hollis identifies no other
expert who would have testified that the fingerprint found on
the scale was insufficiently clear for purposes of
comparison, or who would have testified that the fingerprint
on the scale attributed to Hollis by the Government's
expert was not actually Hollis's.
has not shown that his counsel's representation
“fell below an objective standard of reasonableness,
” Strickland, 466 U.S. at 689, or that there
is a reasonable probability that “but for counsel's
[alleged] unprofessional errors, the result of the proceeding
would have been different, ” id. at 694.
Consequently, he is entitled to no relief on this claim of
ineffective assistance of counsel.
Failure to object to Government's fingerprint expert
on Confrontation Clause grounds
contends that his trial counsel was ineffective for failing
to object on Confrontation Clause grounds to testimony by Joe
Maberry, the Government's expert in latent fingerprint
analysis. Doc. No. 1 at 5; Doc. 1-1; Doc. No. 2 at 5-6. He
also argues that his appellate counsel was ineffective for
failing to raise this issue on appeal. Id.
a senior fingerprint specialist with DEA South Central
Laboratory in Dallas, Texas, testified at trial that he found
Hollis's right thumbprint on one scale seized during a
search of the residence where Hollis was arrested. According
to Hollis, Maberry's testimony should have been
challenged on Confrontation Clause grounds because, he says,
Maberry did not actually conduct the comparison analysis that
determined that Hollis's print was found on the scale.
Hollis maintains that another fingerprint analyst, who was
not called to testify, conducted the comparison.
claim notwithstanding, testimony at trial established that
Maberry-and not another fingerprint analyst-conducted the
comparison analysis that determined it was Hollis's print
on the scale. See Doc. No. 16-4 at 107-18. Thus,
there is no merit to Hollis's claim that his trial
counsel was ineffective for failing to challenge
Maberry's testimony on Confrontation Clause grounds. For
the same reasons, Hollis cannot show that his counsel was
ineffective for failing to raise this issue on appeal.
Inadequate cross-examination of Government's
argues that his trial counsel was ineffective for failing to
cross-examine Maberry about deficiencies in the FBI's
ACE-V system of fingerprint analysis. Doc. No. 2 at 4 &
6. The record, however, reflects that Hollis's counsel
thoroughly questioned Maberry about flaws in the FBI system
of print analysis, pointing out specific mistakes made in
other cases. See Doc. No. 15-23 at 35-43. Hollis
presents nothing to suggest what additional cross-examination
of Maberry about these matters would have yielded beneficial
to his defense.
court can only speculate on whether the outcome of a
proceeding would have been different had defense counsel
conducted further cross-examination of a witness, there is an
insufficient showing of prejudice under Strickland.
See Poindexter v. Mitchell, 454 F.3d 564, 572-73
(6th Cir. 2006). Hollis proves neither deficient performance
nor prejudice. He is entitled to no relief on this claim.
Failure to call second analyst as witness
contends that his trial counsel was ineffective for failing
to call as a witness a second forensic examiner who analyzed
fingerprint evidence. Doc. No. 1-1; Doc. No. 2 at 5-7.
Government's expert, Maberry, testified that a second
analyst with the DEA tested other scales seized after
Hollis's arrest, which were not tested by Maberry, and
found no latent fingerprints on those scales. Doc. No. 15-23
at 27. This testimony indicated that Hollis's fingerprint
was found only on the scale tested by Maberry. Hollis
suggests nothing about which the uncalled second analyst
might have testified that was not made known to the jury
through Maberry's testimony. Hollis proves neither
deficient performance by counsel in failing to call the
second analyst to testify nor prejudice resulting from
counsel's actions. Therefore, he is entitled to no relief
on this claim of ineffective assistance of counsel.
Ineffective-Assistance Claims Related to § 924(c)
Section 924(c) count (Count 3) in
claims his trial and appellate counsel were ineffective for
failing to object to the § 924(c) count (Count 3 in the
indictment) on grounds that (i) it was duplicitous (Doc. No.
2 at 19-20; Doc. 23 at 5-8); and (ii) it did not include as
an element that the firearm possession had to be ...