United States District Court, S.D. Alabama, Northern Division
VAN TUBBS, BOP Reg. #06762-027, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
Tubbs, a federal prisoner proceeding without counsel (i.e.,
pro se), has filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (Doc.
challenging the judgment entered against him in the
above-styled criminal action. The motion has been referred to
the undersigned Magistrate Judge for appropriate action.
See S.D. Ala. GenLR 72(b); (11/17/2017 electronic
reference). Under S.D. Ala. GenLR 72(a)(2)(R), the
undersigned 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 the
§ 2255 motion, 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
Government timely filed a response (Doc. 751) in opposition
to Tubbs's § 2255 motion, as ordered under Rule 4(b)
of the Rules Governing Section 2255 Proceedings (see
Doc. 749), and Tubbs has timely filed a reply (Doc. 752) to
the response. Having reviewed the parties' submissions
and other relevant portions of the record 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 warranted and that Tubbs's
§ 2255 motion (Doc. 748) is due be
DENIED and DISMISSED with
29, 2014, the grand jury for this district returned an
indictment against Tubbs and 17 co-defendants (Doc. 1). On
September 17, 2014, Tubbs, represented by appointed counsel
Larry Moorer, Esq., and pursuant to a written plea agreement
(Doc. 281), pleaded guilty to both counts of the indictment
that were asserted against him - Count 1, which charged an
offense of conspiracy to possess with intent to distribute
controlled substances, in violation of 21 U.S.C. § 846;
and Count 27, which charged an offense of conspiracy to
commit money laundering, in violation of 18 U.S.C. §
1956(h). (See Docs. 1, 296). On September 24, 2015,
the Court sentenced Tubbs to concurrent terms of 180 months
imprisonment followed by 5 years of supervised release on
each count, along with a $200.00 assessment. (Doc. 670).
Written judgment was entered on October 1, 2015. (See
filed pro se a notice of appeal of the judgment
(Doc. 678), and new counsel was appointed to represent him on
appeal (see Doc. 712). However, on November 18,
2016, the Eleventh Circuit Court of Appeals dismissed
Tubbs's direct appeal on motion of the Government
pursuant to the appeal waiver in Tubbs's written plea
agreement. (See Doc. 734; 11th Cir. Appeal No.
15-14483-FF, Order of Dismissal). Tubbs filed the present
§ 2255 motion less than a year later. (See Doc.
748 at 12).
Legal Standards A. General Considerations under
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).
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). In
making this determination, the Court is aware that it must
“liberally construe pro se filings, including
pro se applications for relief pursuant to §
2255.” Winthrop-Redin, 767 F.3d at 1215.
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).
“ ‘concern with finality served by the limitation
on collateral attack has special force with respect to
convictions based on guilty pleas.' ” Bousley
v. United States, 523 U.S. 614, 621 (1998) (quoting
United States v. Timmreck, 441 U.S. 780, 784
(1979)). “A defendant who enters a plea of guilty
waives all nonjurisdictional challenges to the
constitutionality of the conviction, and only an attack on
the voluntary and knowing nature of the plea can be
sustained.” Wilson v. United States, 962 F.2d
996, 997 (11th Cir. 1992). See also, e.g.,
United States v. Brown, 752 F.3d 1344, 1347 (11th
Cir. 2014) (“‘A guilty plea, since it admits all
the elements of a formal criminal charge, waives all
non-jurisdictional defects in the proceedings against a
defendant.'” (quoting United States v.
Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (per
curiam)); United States v. Saac, 632 F.3d 1203, 1208
(11th Cir. 2011) (“ ‘Generally, entering a guilty
plea waives a defendant's right to all non-jurisdictional
challenges to a conviction.' ” (quoting United
States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir.
2009)). Stated differently, “a voluntary and
intelligent plea made by an accused person, who has been
advised by competent counsel, may not be collaterally
attacked.” Mabry v. Johnson, 467 U.S. 504, 508
(1984). Therefore, when, as here, a § 2255 motion is
filed collaterally challenging convictions obtained pursuant
to guilty pleas, “the inquiry is ordinarily confined to
whether the underlying plea was both counseled and
voluntary.” United States v. Broce, 488 U.S.
563, 569 (1989). See also Bousley, 523 U.S. at 618
(“A plea of guilty is constitutionally valid only to
the extent it is ‘voluntary' and
‘intelligent.' (quoting Brady v. United
States, 397 U.S. 742, 748 (1970)).
Ineffective Assistance of Counsel
Sixth Amendment to the United States Constitution gives
criminal defendants the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668,
684-86 (1984). “[F]ailure 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 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
(2014). “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;
… ‘the cases in which habeas petitioners can
properly prevail on the ground of ineffective assistance of
counsel are few and far between.'”
Johnson, 256 F.3d at 1176 (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, 46 F.3d at 1518. Accord, e.g.,
Burt v. Titlow, 571 U.S. 12, 24 (2013) (“[T]he
Sixth Amendment does not guarantee the right to perfect
counsel; it promises only the right to effective
assistance…”). “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.
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, ”…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.
2002). “The reasonableness of counsel's performance
is to be evaluated from counsel's perspective at the time
of the alleged error and in light of all the circumstances.
In making the competency determination, the court should keep
in mind that counsel's function, as elaborated in
prevailing professional norms, is to make the adversarial
testing process work in the particular case.”
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)
(citing Strickland, 466 U.S. at 689-91) (citations
and quotations omitted).
“A guilty plea is open to attack on the ground that
counsel did not provide the defendant with ‘reasonably
competent advice.' ” Cuyler v. Sullivan,
446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333
(1980) (quoting McMann[ v. Richardson], 397
U.S. [759, ] 770, 90 S.Ct. [1441, ] 1448[ (1970)]). The
Supreme Court has held “that the two-part
Strickland v. Washington test applies to challenges
to guilty pleas based on ineffective assistance of
counsel.” Hill v. Lockhart, 474 U.S. 52, 58,
106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Slicker v.
Dugger, 878 F.2d 1380, 1381 n.1 (11th Cir. 1989) (per
curiam); Holmes v. United States, 876 F.2d 1545,
1551 (11th Cir. 1989); McCoy v. Wainwright, 804 F.2d
1196, 1198 (11th Cir. 1986) (per curiam)…
…Hill clarified the Strickland
second or “prejudice” requirement in the context
of guilty pleas: “the defendant must show that there is
a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on
going to trial.” 474 U.S. at 59, 106 S.Ct. at 370;
Tahamtani v. Lankford, 846 F.2d 712, 714 (11th Cir.
1988) (per curiam); see Long v. United States, 883
F.2d 966, 968 n.4 (11th Cir. 1989) (per curiam); Agan v.
Dugger, 835 F.2d 1337, 1340 n.6 (11th Cir. 1987),
cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101
L.Ed.2d 884 (1988); see also Holmes, 876 F.2d at
1553, Slicker v. Wainwright, 809 F.2d 768, 770 (11th
Cir. 1987) (These cases were remanded to the district court
to determine if accurate, rather than incorrect, information
by the defense counsel as to the length of sentence would
have changed the defendant's plea.); cf. Betancourt
v. Willis, 814 F.2d 1546, 1549 (11th Cir. 1987) (This
court affirmed the district court's granting a habeas
corpus petition based upon its conclusion that
petitioner's plea was not voluntary and that his counsel
provided ineffective assistance because the evidence was
“uncontroverted that petitioner was completely unaware
of the ultimate consequences of his plea because his counsel
misrepresented the existence of a sentence reduction
agreement.”). The Hill court explained the
prejudice requirement with specific regard to a defense
counsel's alleged failure to investigate potentially
In many guilty plea cases, the “prejudice”
inquiry will closely resemble the inquiry engaged in by
courts reviewing ineffective-assistance challenges to
convictions obtained through a trial. For example, where the
alleged error of counsel is a failure to investigate or
discover potentially exculpatory evidence, the determination
whether the error “prejudiced” the defendant by
causing him to plead guilty rather than go to trial will
depend on the likelihood that discovery of the evidence would
have led counsel to change his recommendation as to the plea.
This assessment, in turn, will depend in large part on a
prediction whether the evidence likely would have changed the
outcome of a trial.
474 U.S. at 59, 106 S.Ct. at 370; McCoy, 804 F.2d at
The Supreme Court has given finality to guilty pleas by
precluding claims of constitutional deprivations occurring
prior to entry of the plea. Tollett v. Henderson,
411 U.S. 258');">411 U.S. 258, 267, 93 S.Ct. 1602');">93 S.Ct. 1602, 1608, 36 L.Ed.2d 235
(1973); see Tiemens v. United States, 724 F.2d 928,
929 (11th Cir.) (per curiam) (“[A] guilty plea waives
all nonjurisdictional defects occurring prior to the time of
the plea, including violations of the defendant's rights
to a speedy trial and due process.”), cert.
denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74
(1984). The Court allows only challenges to the voluntary and
intelligent entry of the plea if a convicted defendant can
prove “serious derelictions” in his counsel's
advice regarding the plea. McMann, 397 U.S. at 774,
90 S.Ct. at 1450; Tollett[ v. Henderson],
411 U.S. [258, ] 267, 93 S.Ct. [1602, ] 1608[ (1973)];
see Hill, 474 U.S. at 56, 106 S.Ct. at 369
(“The longstanding test for determining the validity of
a guilty plea is ‘whether the plea represents a
voluntary and intelligent choice among the alternative
courses of action open to the defendant.' ”
(quoting North Carolina v. Alford, 400 U.S. 25, 31,
91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Without
“reasonably effective assistance of counsel in
connection with the decision to plead guilty, ” a
defendant cannot enter a knowing and voluntary plea because
the plea does not represent an informed choice.
McCoy, 804 F.2d at 1198; Scott[ v.
Wainwright], 698 F.2d [427, ] 429[ (11th Cir. 1983)].
Based upon his familiarity with the facts and law, defense
counsel must advise the defendant. Scott, 698 F.2d
at 429. “Counsel's advice need not be errorless,
and need not involve every conceivable defense, no matter how
peripheral to the normal focus of counsel's inquiry, but
it must be within the realm of competence demanded of
attorneys representing criminal defendants.”
Id. (emphasis added); see McMann, 397 U.S.
at 771, 90 S.Ct. at 1449; Long, 883 F.2d at 969.
The Supreme Court has recognized that the decision to plead
guilty may occur without all of the state's evidence and
necessarily takes place without knowledge of all facts
revealed by witnesses at trial. McMann, 397 U.S. at
769-70, 90 S.Ct. at 1448. “[C]ounsel owes a lesser duty
to a client who pleads guilty than to one who decides to go
to trial, and in the former case counsel need only provide
his client with an understanding of the law in relation to
the facts, so that the accused may make an informed and
conscious choice between accepting the prosecution's
offer and going to trial.” Wofford v.
Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (per
curiam); Downs-Morgan v. United States, 765 F.2d
1534, 1539 (11th Cir. 1985). An attorney's responsibility
is to investigate and to evaluate his client's options in
the course of the subject legal proceedings and then to
advise the client as to the merits of each. Tafero,
796 F.2d at 1320; Thompson v. Wainwright, 787 F.2d
1447, 1451 (11th Cir. 1986), cert. denied, 481 U.S.
1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)…
Stano v. Dugger, 921 F.2d 1125, 1149-51 (11th Cir.
1991) (en banc) (footnote omitted). In claiming prejudice under
Strickland and Hill, “[a] movant must
[also] allege facts that would prove that a decision not to
plead guilty ‘would have been rational under the
circumstances.' ” Hernandez v. United
States, 778 F.3d 1230, 1234 (11th Cir. 2015) (quoting
Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).