United States District Court, S.D. Alabama, Southern Division
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on pro se Petitioner
Jeffrey Dean Coble (Coble)'s motion to vacate under 28
U.S.C. § 2255 (Doc. 54), Respondent United States of
America (the Government)'s Response (Doc. 57),
Coble's Reply (Docs. 65, 66), and Coble's
Supplement/Amendment (Docs. 79, 80); Coble's motion for
arrest of judgment (Doc. 77); Coble's motion for
expedited evidentiary hearing (Doc. 81); Coble's motion
to appoint counsel (Doc. 86); and Coble's motion for
evidentiary hearing (Doc. 87).
February 22, 2016, Coble plead guilty to one count of
distribution of child pornography, and on June 30, 2016, was
sentenced to 240 months' imprisonment. (Docs. 23, 24,
41). Coble did not appeal. Indeed, per Coble, "Movant
has not had a Direct Appeal or any other post-conviction
action challenging his CONVICTION."
(Doc. 54 at 5, 11). On July 3, 2017, Coble moved to vacate
per Section 2255. (Doc. 54). Thereafter, Coble filed an
amended petition and moved for appointment of counsel as well
as an evidentiary hearing.
petition, Coble asserts ten Section 2255 claims with regard
to his indictment, ineffective assistance of counsel,
prosecutorial misconduct, a violation of the Speedy Trial
Act, and judicial misconduct. Specifically Coble alleges: #1)
his indictment was legally insufficient (did not fully state
that a crime was committed); #2, #3, #4) he was denied
effective assistance of counsel (counsel failed to
investigate the indictment's sufficiency and the
pre-custody Miranda warning he received, and mislead
him with a false statement “about the penalty
phase”); #5, #6) prosecutorial misconduct in that the
prosecutor mislead the Grand Jury to return a faulty
indictment and used it to “strengthen and bolster [the]
case[;]”; #7) the indictment was returned 10 days late,
violating the Speedy Trial Act; and #8, #9, #10) Judicial
Misconduct because the Court had an “in chambers
meeting to practice law from the bench while maintaining goal
of harpooning plea negotiations”, demanded a guidelines
cross-reference which greatly increased sentence, and the
violated the ends of justice doctrine.
Relevant Law 
is a federal prisoner proceeding pro se.
“[C]ourts should construe a habeas petition filed pro
se more liberally....” See, e.g.,
Gunn v. Newsome, 881 F.2d 949, 961 (11th Cir. 1989).
Nevertheless, habeas relief -- collateral relief -- is an
extraordinary remedy which “may not do service for a [
] [direct] appeal.” United States v. Frady,
456 U.S. 152, 165 (1982). A petitioner who has waived or
exhausted his right to appeal is presumed to stand
“fairly and finally convicted.” Id. at
164. “[U]nless the claim alleges a lack of jurisdiction
or constitutional error, the scope of collateral attack has
remained far more limited ... [A]n error of law does not
provide a basis for collateral attack unless the claimed
error constituted a fundamental defect which inherently
results in a complete miscarriage of justice.”
United States v. Addonizio, 442 U.S. 178, 185 (1979)
(internal citation and quotation omitted). See also Burke
v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998)
(“Nonconstitutional claims can be raised on collateral
review only when the alleged error constitutes a
‘fundamental defect which inherently results in the
miscarriage of justice or an omission inconsistent with the
rudimentary demands of fair procedure[ ]'”)
(internal citations omitted). “A habeas petitioner must
present a claim in clear and simple language such that the
district court may not misunderstand it.” Dupree v.
Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). However,
the Court “liberally construe[s] petitions filed
pro se.” Id.
a petitioner must show that one of the following occurred: 1)
“the sentence was imposed in violation of the
Constitution or laws of the United States, ” 2)
“the court was without jurisdiction to impose such
sentence, ” or 3) “the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a). Section
2255 further requires that a federal prisoner file a §
2255 motion to vacate his sentence within one year of,
inter alia, the date his judgment of conviction
becomes final. 28 U.S.C. § 2255(f)(1). Ordinarily, a
conviction becomes final once the opportunity for direct
appeal has been exhausted. Akins v. United States,
204 F.3d 1086, 1089 n.1 (11th Cir. 2000).
a Section 2255 petition does not take the place of a direct
appeal. Indeed, "[a] careful reading of § 2255, and
relevant case law, suggests that a request for habeas relief
should usually follow a request for relief via direct appeal.
See 28 U.S.C. § 2255(f); Akins, 204 F.3d at
1089 n.1; Washington v. United States, 243 F.3d
1299, 1300 (11th Cir. 2001)." Tarabein v.
United States, 2019 WL 2871151, *3 and note 3 (S.D. Ala.
Jun. 17, 2019), adopted by 2019 WL 2870100 (S.D.
Ala. Jul. 3, 2019). In keeping with this procedural default
rule, a petitioner “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.” McKay
v. United States, 657 F.3d 1190, 1196 (11th Cir.
2011) (quoting Lynn v. United States, 365 F.3d 1225,
1234 (11th Cir. 2004)). Coble failed to seek relief of any of
his claims on direct appeal, suggesting some of his 2255
claims are procedurally defaulted. Bousley v. United
States, 523 U.S. 614, 612 (1998); United States v.
Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).
See, e.g., Mills v. United
States, 36 F.3d 1052, 1055 (11th Cir. 1994) (if
available challenges to a federal conviction or sentence are
not advanced on direct appeal, those claims are procedurally
defaulted in a Section 2255 proceeding); United States v.
Davis, 2010 WL 5239243, *3-4 (S.D. Ala. Dec.14, 2010)
(concluding that a petitioner procedurally defaulted on his
claim that his guilty plea was involuntary because he failed
to challenge it on direct review); Scott v. United
States, 2008 WL 7258799, *19 (S.D. Ala. Nov. 3, 2008)
(same). However, as explained by the Eleventh Circuit in
McKay v. United States, 657 F.3d at 1196 (footnote
omitted) there are exceptions to procedural default:
…. The exceptions are: (1) for cause and prejudice, or
(2) for a miscarriage of justice, or actual innocence.
See Lynn, 365 F.3d at 1234. Under the cause and
prejudice exception, a § 2255 movant can avoid
application of the procedural default bar by “show[ing]
cause for not raising the claim of error on direct appeal
and actual prejudice from the alleged error.”
Id. Under the actual innocence exception-as
interpreted by current Supreme Court doctrine-a movant's
procedural default is excused if he can show that he is
actually innocent either of the crime of conviction or, in
the capital sentencing context, of the sentence
itself…[ ] See Dretke v. Haley, 541 U.S. 386,
388, 124 S.Ct. 1847, 158 L.Ed.2d 659
“failure 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, 538 U.S. at 509. 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, Milligan v. United States, 213 Fed.Appx.
964, 966 (11th Cir.2007) (This Court does not consider
claims of ineffective assistance of counsel on direct appeal
unless those claims were first raised in the district court
with an opportunity to develop a factual record relevant to
the merits of the claim) (citing United States v.
Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir.1994)).
filing of a Section 2255 petition does not automatically
entitle a petitioner to an evidentiary hearing. Rather, as
set forth in Reed v. United States, 2019 WL 5457783,
81 (11th Cir. Oct. 24, 2019):
The district court is not required to grant an evidentiary
hearing in a § 2255 case where the files and records of
the case conclusively show that the movant is entitled to no
relief. Rosin, 786 F.3d at 877. However, the
district court should grant an evidentiary hearing and rule
on the merits of a movant's claim if he alleges
reasonably specific, non-conclusory facts that, if true,
would entitle him to relief. Winthrop-Redin, 767
F.3d [1210, 1216 (11th Cir. 2014)]. Accordingly, the district
court must accept as true the movant's specific factual
allegations in determining whether he is entitled to an
evidentiary hearing. Griffith v. United States, 871
F.3d 1321, 1330 n.9 (11th Cir. 2017). Nevertheless, an
evidentiary hearing is unnecessary where the movant's
allegations are affirmatively contradicted by the record,
based on unsupported generalization, or patently frivolous.
Winthrop-Redin, 767 F.3d at 1216. Dismissal is also
appropriate where a movant has presented conclusory
allegations unsupported by specific factual assertions.
Ineffective Assistance of Counsel
contending ineffective assistance of counsel, Coble asserts
that: (#2) his counsel failed to investigate the
indictment's sufficiency; (#3) his counsel failed to
investigate the pre-custody Miranda warning he received; (#4)
his counsel made a false and misleading statement
“about the penalty phase.”
To prevail on a claim of ineffective assistance of counsel, a
habeas petitioner must demonstrate both that (1)
counsel's performance was deficient because it fell below
an objective standard of reasonableness, and (2) prejudice
resulted because there is a reasonable probability that, but
for the deficient performance, cause the result of the
proceeding would have been different. Hinson v.
Alabama, 571 U.S. 263, 271-272 (2014)(citing Padilla
v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176
L.Ed.2d 284 (2010); Strickland v. Washington, 466
U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
The proper measure of attorney performance is simply
reasonableness under prevailing professional norms
considering all the circumstances. Hinson at 272. A
court must “judge the reasonableness of counsel's
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct.” Roe v. Flores-
Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d
985 (2000) (quoting Strickland, 466 U.S. at 690).
This judicial scrutiny is highly deferential, and the Court
adheres to a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689-90. To be
objectively unreasonable, the performance must be such that
no competent counsel would have taken the action. Rose v.
McNeal, 634 F.3d 1224, 1241 (11th Cir.2011); Hall v.
Thomas, 611 F.3d 1259, 1290 (11th Cir.2010).
Additionally, an attorney is not ineffective for failing to
raise or preserve a meritless issue. United States v.
Winfield, 960 F.2d 970, 974 (11th Cir.1992); Ladd v.
Jones, 864 F.2d 108, 109-10 (11th Cir.1989).
To establish prejudice under Strickland, petitioner
must show more than that the error had “some
conceivable effect on the outcome of the proceeding.”
Marquard v. Sec'y for the Dep't of Corr.,429 F.3d 1278, 1305 (11th Cir.2005) (quotation marks
omitted). Rather, 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. Hinton, 134 S.Ct. at 1089.
“A reasonable probability is a probability sufficient