Knight v. United States of America

Filing 14

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/6/12. (KGE, )

FILED
2012 Jul-06 AM 10:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES EUGENE KNIGHT,
Movant/Defendant,
v.
THE UNITED STATES OF AMERICA,
Respondent.

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2:08-cr-00383-LSC-JEO
2:10-cv-08046-LSC-JEO

MEMORANDUM OPINION
The cases referenced above are before the court on the motions of defendant Charles
Eugene Knight, to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. §
2255 (doc. 1) and for rendition and entry of judgment (doc. 12).1 Upon careful consideration, the
court finds no need for an evidentiary hearing and that the motions are due to be denied.

I. PROCEDURAL HISTORY
On September 30, 2008, the Grand Jury for the Northern District of Alabama issued a
three-count indictment against Knight. (08-383, doc. 1). Count One charged Knight with
possession with intent to distribute five grams or more of a mixture and substance containing a
detectable amount of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), Count
Two charged him with possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A), and Count Three charged him with possession of a firearm
as a convicted felon in violation of 18 U.S.C. § 922(g)(1). (Id.) This court determined that

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References to “Doc. ___” are to the document numbers assigned by the Clerk of the Court. References to “08-383,
Doc. ___” are to the document numbers assigned by the Clerk of the Court in the defendant’s original criminal case
(United States v. Charles Eugene Knight, 2:08-cr-00383-LSC-JEO).

Knight could not afford to retain an attorney and, therefore, appointed attorney William Myers to
represent him. (08-383, Doc. 7). Mr. Myers later moved to withdraw from the case, which this
court allowed. (08-383, Doc. 9). The court then appointed attorney Charles Scott Linton to
represent Knight. (08-383, Doc. 10).
In the pretrial phase, Mr. Linton filed a motion to dismiss the indictment for unnecessary
delay pursuant to 18 U.S.C. § 3161 (Speedy Trial Act), a motion to dismiss for unnecessary delay
pursuant to Rule 48(b), FED. R. CRIM. P., and a motion to suppress evidence. (08-383, Docs. 1417). This court held a hearing on the motions and orally denied each. (08-383, Docket Entry
12/11/2008). The Government also filed an Information, charging that, for purposes of an
enhanced penalty under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 851, Knight had a prior
conviction for a felony drug offense in the Circuit Court of Jefferson County. (08-383, Doc. 20).
Ultimately, Knight and the Government were unable to reach a plea agreement, and the
case proceeded to trial on December 16, 2008. (08-383, Docket entry 12/16/2008). On
December 17, 2008, the jury found Knight guilty of all three counts. (08-383, Docs. 35-37). The
United States Probation Office then prepared a Presentence Investigation Report (“PSR”) to
which Knight filed no objections. (08-383, Doc. 40).
On February 5, 2009, this court held a sentencing hearing. (08-383, Docket Entry
2/6/2009). The court first acknowledged that the Government had filed the Information and
asked Knight whether he affirmed or denied the conviction. (Doc. 52 at 4:3-9). Knight
responded, “I affirm.” (Id. at 5:15). Knight also acknowledged that he understood that he could
not later collaterally attack that conviction. (Id. at 6:3). The court then noted that Knight had no
objections to the PSR and made the following findings: Knight had three qualifying felonies
which were separate and distinct under 18 U.S.C. § 924(e)(1); the guideline offense level was 33;
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Knight’s criminal history category was VI; and the advisory guideline range was 235 months to
293 months, plus 60 months consecutive as to Count Two. (Id. at 7:1:16). Mr. Linton and
Knight then each requested that the court sentence Knight at the low end of the guideline range.
(Id. at 8:13-16, 11:14). The court declined these requests and concluded the sentencing hearing
by sentencing Knight to a term of 293 months as to Counts One and Three, separately, with each
count to run concurrently with the other, plus 60 months as to Count Two, with the sentence in
Count Two to run consecutively with the sentence imposed on Counts One and Three for a total
term of 353 months imprisonment and 8 years of supervised release. (Doc. 52 at 16).
Additionally, the court ordered that the sentence run consecutively with any other sentences from
state court. (Id. at 17).
Mr. Linton timely filed a Motion to Alter Judgment and a Notice of Appeal on Knight’s
behalf. (08-383, Docs. 43 & 44). This court denied the Motion to Alter Judgment on February 9,
2009, and the Eleventh Circuit affirmed the convictions and sentence in an unpublished opinion
on January 14, 2010. (08-383, Docket Entry 2/10/2009 & Doc. 54). On February 12, 2010, that
court issued its mandate, and Knight did not petition the United States Supreme Court for a writ
of certiorari. (08-383, Doc. 54).
On October 22, 2010, Knight filed the instant pro se § 2255 motion and supporting brief.
(Doc. 1; 08-383, Doc. 55). The Government responded with a memorandum supported by an
affidavit from Mr. Linton and the appellate brief Mr. Linton prepared on direct appeal. (Docs. 5,
5-1 & 5-2). Knight replied to the Government’s response (doc. 7), and later filed a Motion for
Rendition and Entry of Judgment (doc. 12).

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II. OFFENSE CONDUCT
The evidence derived from the trial demonstrated the following facts. On March 16,
2007, officers from the Birmingham Police Department executed a search warrant at Knight’s
apartment. (Doc. 53 at 15-16, 22). Upon entering the apartment, officers found Knight in bed
and crack cocaine, assorted ammunition, and mail addressed to Knight in a dresser beside the
bed. (Id. at 22:3-6). The officers also found “crack baggies” and assorted ammunition in a duffle
bag at the foot of the bed. (Id. at 22:7-9) Additionally, a loaded Cobray .45 caliber single-shot
pistol, along with crack cocaine were in a jacket laying on the bedroom floor. (Id. at 22:9-12) A
total of 7.29 grams of crack cocaine was found in the apartment, along with loose ammunition
and marijuana. (Id. at 108). Knight was the only individual in the apartment at the time of the
search. (Id. at 21:12-13).
For the purposes of trial, the parties stipulated that the Cobary .45 caliber pistol traveled
in and affected interstate commerce. (Doc. 53 at 138:20-24). The parties also stipulated that
Knight had previously been convicted of a felony offense, punishable by imprisonment for a term
in excess of one year, before March 16, 2007. (Id. at 139:1-3).

III. ANALYSIS
Section 2255 provides that a prisoner in federal custody may move the court which
imposed sentence to vacate, set aside or correct the sentence if it was imposed in violation of
federal constitutional or statutory law, was imposed without proper jurisdiction, is in excess of
the maximum authorized by law, or is otherwise subject to collateral attack. If a court finds a
claim under § 2255 to be valid, then 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

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appear appropriate.” Id. To obtain this relief on collateral review, however, a petitioner must
“clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady,
456 U.S. 152, 166 (1982) (rejecting the plain error standard as not sufficiently deferential to a
final judgment).
Unless “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.” § 2255. The
Eleventh Circuit Court of Appeals has explained that “[a] habeas corpus petitioner is entitled to
an evidentiary hearing on his claim ‘if he alleges facts which, if proven, would entitle him to
relief.’” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (quoting Futch v. Dugger,
874 F.2d 1483, 1485 (11th Cir. 1989)). However, “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
Here, Knight asserts the following grounds for relief:
1.
Insufficient Evidence - That the Government submitted insufficient evidence to
sustain guilty verdicts for the following reasons:
a.

the Government failed to establish that “the cocaine base, allegedly found
in [Knight’s] possession, was in fact ‘smokeable,’” (doc. 1 at 10);

b.

the Government failed to establish that the firearm found at Knight’s
apartment was used in furtherance of a drug-trafficking crime (id.); and

c.

the Government failed to established that Knight’s prior state-court
convictions for possession of a controlled substance and second-degree
assault were final judgments and/or “serious drug offenses” (id. at 11-12).

2.
Excessive Sentence - That the sentencing court misapplied the sentencing
guidelines for the following reasons:
a.

the cocaine base should have been treated as cocaine hydrochloride
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(powder) because the jury did not determine that the cocaine base was “in
fact ‘smokeable,’” (doc. 1 at 12);
b.

“imposition of sentence, on a fact ‘not’ found by the jury, violate[d]
[Knight’s] right to trial by jury as guaranteed by the Sixth Amendment of
the Constitution” (id. at 13);

c.

under Apprendi, Knight’s base offense level should not have been greater
than 12 (id.);

d.

the enhancement as an Armed Career Criminal should not have applied to
Counts Two and Three because the prior convictions were invalid (id. at
16); and

e.

Knight’s “‘criminal history category’ has been erroneously calculated
resulting in a Category-VI prejudicial to the defendant in violation of Due
Process” (id.)

3.
Ineffective Assistance of Counsel Claim - That Mr. Linton rendered ineffective
assistance by:
a.
b.

failing to file “motion(s) for proper sentencing in accordance with
the applicable sentencing guidelines that would have resulted in
[Knight’s] Base Offense Level being 12.” (id. at 17);

c.

failing to object to invalid prior convictions that affected advisory
guideline range for Counts Two and Three (id.);

d.

failing to adequately prepare for the “sentencing phase of the trial”
(id.); and

e.
4.

failing to file a post-trial motion for acquittal (doc. 1 at 16);

failing to file a meritorious appellate brief (id.)

Constitutionally Defective Jury Instructions - That the jury instructions:
a.

b.

A.

improperly established that the substance in Knight’s possession was in
fact crack cocaine (doc. 1 at 18);
improperly charged “possessing or using a firearm in furtherance
of drug trafficking crime, when such charge was not supported by
the evidence [and] affected [Knight’s] substantial rights” (id.)

Count Three - Ineffective Assistance Claims
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The court first addresses Knight’s independent claim of ineffective assistance of counsel.
Knight contends that Mr. Linton rendered ineffective assistance by failing to: (1) file a post-trial
motion for acquittal; (2) file “motions for proper sentencing in accordance with the applicable
sentencing guidelines that would have resulted in [his] Base Offense Level being 12”; (3) object
to invalid prior convictions that affected the advisory guideline range for Counts Two and Three;
(4) adequately prepare for the “sentencing phase of the trial”; and (5) file a meritorious appellate
brief. (Doc. 1 at 16-17).
1.

The Standard of Review

In order to prevail on a claim of ineffective assistance of counsel, the movant must
establish: (1) deficient performance—that his counsel’s representation fell below an objective
standard of reasonableness; and (2) prejudice—but for the deficiency in representation, there is a
reasonable probability that the result of the proceeding would have been different. See Strickland
v. Washington, 466 U.S. 668 (1984); Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000).
The burden of proving ineffective assistance remains with the movant at all times. See Chandler,
218 F.3d at 1315 n.15. A court may decline to reach the performance prong of the standard if it
is convinced that the prejudice prong cannot be satisfied. See Strickland, 466 U.S. at 697;
Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995).
The performance prong of Strickland “requires a petitioner to establish that counsel
performed outside the wide range of reasonable professional assistance and made errors so
serious that he failed to function as the kind of counsel guaranteed by the Sixth Amendment.”
Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004). The proper measure of attorney
performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at
688. Because a wide range of performance is constitutionally acceptable, “the cases in which
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habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few
and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Courts “are not interested
in grading lawyers’ performances” but, “are interested in whether the adversarial process at trial
... worked adequately.” Id. at 386. To be unreasonable, the performance must be such that “no
competent counsel would have taken the action that his counsel did take.” Grayson v.
Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001). In other words, “[e]ven if many reasonable
lawyers would not have done as defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would
have done so.” Rogers, 13 F.3d at 386.
The prejudice prong of Strickland “requires a petitioner to demonstrate that seriously
deficient performance of his attorney prejudiced the defense.” Butcher, 368 F.3d at 1293. In the
guilty-plea context, a petitioner must establish “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Similarly, in the sentencing context, a petitioner must
establish a reasonable probability that, but for counsel’s deficient performance, the result of the
sentencing proceeding would have been different. See Glover v. United States, 531 U.S. 198,
203-04 (2001).
With the above law as a backdrop, the court finds that Knight has failed to establish his
claims of ineffective assistance of counsel because he has failed to establish a deficient
performance by Mr. Linton or that he was prejudiced by these alleged deficiencies of
performance.
2.

The Claims
a.

Failure to file post-trial motion for acquittal
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Knight contends that Mr. Linton render ineffective assistance because he did not file a
“post-trial motion for acquittal due to the failure of Government to present evidence to support
jury verdicts.” (Doc. 1 at 17). The Government responds that Mr. Linton in fact made two
separate motions for judgments of acquittal—one after the government rested and a second after
the defense rested. (Doc. 5 at 9). Thus, the Government appears to contend that Mr. Linton’s
failure to file a post-trial motion for acquittal was immaterial in view of the prior motions.
Under the facts and circumstances of this case, the court finds that Mr. Linton did not
render constitutionally deficient performance by failing to file a post-trial motion for acquittal.
During the trial, the Government submitted sufficient evidence to support all three of the
convictions, and, therefore, Knight cannot show that Mr. Linton should have filed the motion or
that he was prejudiced by Mr. Linton’s failure to file the motion. Simply, the post-trial motion
for acquittal, even if made, would have failed. Accordingly, Knight cannot meet either the
deficient performance or the prejudice prong of the Strickland test for this claim.
b.

Failure to file “motion(s) for proper sentencing in accordance with the
applicable sentencing guidelines that would have resulted in [Knight’s]
Base Offense Level being 12”

Knight also contends that Mr. Linton rendered ineffective assistance by failing to file
motions to lower the base offense level to 12. (Doc. 1 at 17). Knight contends that if Mr. Linton
had filed “motion(s) for proper sentencing” his base offense level would have been 12 rather than
33. (Id.) With a base offense level of 12, Knight argues that his sentencing range would have
been 21 to 27 months, rather than 235 to 253 months, plus 60 months for Count Two. (Id.)
However, Knight provides no basis for his base offense level to be 12 rather than 33. The court
can assume that Knight believes his base offense level should have been lower if the cocaine he
possessed was powder cocaine rather than cocaine base (crack). However, the trial transcript
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shows that the Government’s forensic chemist testified that 7.29 grams of crack cocaine base was
recovered from his apartment. Additionally, the sentence was based on Knight’s conviction for
possession with intent to distribute more than five grams of cocaine base (crack cocaine). Thus,
any motion challenging the base offense level would have been denied as without merit. Because
Knight cannot meet either the deficient performance or the prejudice prong of the Strickland test
for this claim, it is due to be denied.
c.

Failure to challenge the “invalid prior convictions” and adequately prepare for
the sentencing phase of trial

Knight also contends that Mr. Linton rendered ineffective assistance by failing to object
to “the invalid prior conviction(s) alleged in Counts Two and Three of the indictment” and to
generally prepare for the sentencing phase. (Doc. 1 at 17). Knight summarily contends that if
Mr. Linton had objected to these “invalid prior conviction(s)” his sentence would not have
exceeded 27 months imprisonment and that such a significantly less sentence evidences
prejudice. (Id.) The Government responds that this argument lacks any merit because Knight
had the opportunity to review inclusion of these prior convictions in his PSR and that, at the
sentencing hearing, Knight expressly affirmed one of the three convictions (listed in the
Information) and did not object to inclusion of the other convictions. (Doc. 52 at 6:4-6, 12-15).
Additionally, the Government submitted an affidavit from Mr. Linton in which he testified that
he researched the prior convictions on the Alacourt database and that “[t]here was no basis for
me to believe that the convictions alleged in the indictment, and later cited in the PSR, were not
valid” and that “[Knight] never suggested to me that his prior convictions were invalid.” (Doc.
5-1 at 1).
Upon review, Knight cannot demonstrate that Mr. Linton acted unreasonably by failing to

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challenge the prior convictions. First, Knight has produced no evidence indicating that the prior
convictions were invalid and, therefore, he cannot demonstrate any merit to such a challenge or
any resulting prejudice from the alleged failure. Second, Knight failed to make any objections to
references to the prior convictions in the PSR and at the sentencing hearing. When a defendant
has been provided an opportunity to review his PSR and to be heard at the sentencing hearing,
his failure to raise a challenge to the PSR at sentencing will preclude him from raising the
challenge in a § 2255 motion. See United States v. Peloso, 824 F.2d 914, 915 (11th Cir. 1987).
Because Knight has failed to meet either prong of the Strickland analysis for this claim, this court
finds that no relief is due to be granted.
d.

Failure to file a meritorious brief on direct appeal

Knight also alleges that Mr. Linton rendered ineffective counsel by filing a meritless brief
on direct appeal even though “there are numerous and meritorious issue(s) to be reviewed on
appeal that are supported by the record, fact, and law.” (Doc. 1 at 17). Without identification of
the alleged errors, Knight states that Mr. Linton failed to “recognize[] the obvious error(s) in the
record as defendant presents herein.” (Id.) Upon review of the record, the court is unclear as to
the “obvious errors,” but from an abundance of caution considers these alleged errors to be the
issues underlying claims one, two, and four of the instant petition: (1) the Government failed to
necessarily establish that the cocaine base was smokeable; (2) the Government failed to establish
that the firearm and ammunition were used in furtherance of a drug-trafficking offense as defined
in 18 U.S.C. § 924; (3) the prior state-court convictions were invalid. For the foregoing reasons,
these claims lack merit and fail to support Knight’s contention that Mr. Linton failed to raise
obvious errors on appeal.
First, Knight is mistaken that the Government had a burden to prove that the cocaine base
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found at his apartment was smokeable in order to prove a violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B) (Count I of the indictment). In support of his proposition, Knight cites only United
States v. Brisbane, 367 F.3d 910 (D.C. 2004), in which the D.C. Circuit discussed whether the
Government must prove that the cocaine base was smokeable to violate § 841(b)(1)(B)(iii). 367
F.3d at 914. However, in Brisbane the court ultimately concluded that it need not decide that
issue under the facts of that case, and Knight presents no indication that the Eleventh Circuit has
held that the Government must prove that cocaine is smokable to violate § 841(b)(1)(B)(iii). Id.
at 915. Moreover, Mr. Linton, in his affidavit, states that had reviewed Knight’s contention that
the Government had a burden to prove that the cocaine base was smokeable and found that this
proposition has not been recognized by the Eleventh Circuit. (Doc. 5-1 at 1).
The court also notes that Knight’s arguments are misplaced because the Government
produced evidence at trial indicating that the substance found at Knight’s apartment was not only
cocaine base, but also crack. As noted by the Brisbane court, “crack” is a “form of smokable
cocaine.” 367 F.3d at 911. The Government’s forensic chemist testified during the trial that her
analysis found “3.49 grams of cocaine base, otherwise known as crack cocaine” and “3.80 grams
of cocaine base.” (Doc. 53 at 107-08). When asked whether her analysis found a total of “7.29
grams of crack cocaine,” she replied “that’s correct.” (Id. at 108:18-20). For all these reasons,
the court sees no merit to Knight’s contention that the Government failed to necessarily establish
that the cocaine base was smokeable to sustain a conviction for Count I.
Second, the court sees no merit to Knight’s contention that the Government failed to
establish the necessary elements of “usage” and/or “in furtherance of” as defined by 18 U.S.C. §
924. In United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002), the Eleventh Circuit
considered this issue for the first time and concluded that there must be “a showing of some
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nexus between the firearm and the drug selling operation.” 283 F.3d at 1253 (quoting United
States v. Finely, 245 F.3d 199, 202 (2d Cir. 2001)). The Timmons court further noted:
The nexus between the gun and the drug operation can be established by “the type
of drug activity that is being conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the possession (legitimate or
illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the
time and circumstances under which the gun is found.”
Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).
Under the facts of this case, the court finds sufficient circumstances for the jury to have
concluded that Knight was guilty of possessing the firearm “in furtherance of” drug trafficking.
The loaded firearm was found within a jacket that also contained cocaine, and the jacket was
found nearby a duffle bag containing “crack baggies” and assorted ammunition. Knight’s
possession of the firearm was also illegal because he had prior felony convictions. Additionally,
Mr. Linton testified that he had researched the issue of “use” and “in furtherance of” with regard
to Knight’s possession of the firearm and ammunition and concluded that pursuant to “thencurrent law as espoused in U.S. v. Timmons, 283 F.3d 1246 (11th Cir. 2002) and U.S. v. Dixon,
No. 08-10600 (11th Cir. Oct. 22, 2008), [he] did not consider the issue meritorious.” (Id. at 2).
For these reasons, the court sees no merit to Knight’s contentions that the Government failed to
establish that the defendant violated 18 U.S.C. § 924(c).
Third, the court sees no merit to Knight’s contention that the three state-court convictions
were invalid. As discussed above, Knight has simply not presented any evidence indicating that
the state-court convictions used to enhance his sentence were invalid. Thus, he has failed to
demonstrate any basis to raise this issue on appeal.
In sum, the court concludes that Knight has not demonstrated that Mr. Linton acted
unreasonably or inadequately in briefing Knight’s appeal. Additionally, Knight fails to produce
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any evidence that the outcome of the trial would have been different but for Mr. Linton’s alleged
failure to file a meritorious brief. Consequently, Knight has not demonstrated that he can meet
either prong of the Strickland test. He is entitled to no relief on this claim.
B.

Claims One, Two, and Four are Procedurally Barred
The Government contends that Knight is procedurally barred from presenting claims one,

two and four because Knight could have, but did not pursue these claims on direct appeal. (Doc.
5 at 12). To overcome this procedural bar, Knight must establish cause for the default and actual
prejudice resulting from the default. See Mills v. United States, 36 F.3d 1052 (11th Cir. 1994)
(per curiam). In Mills, the Eleventh Circuit specifically held:
[A]n available challenge to a criminal conviction or sentence must be advanced on
direct appeal or else it will be considered procedurally barred in a § 2255
proceeding. A ground of error is usually “available” on direct appeal when its
merits can be reviewed without further factual development. When a defendant
fails to pursue an available claim on direct appeal, it will not be considered in a
motion for § 2255 relief unless he can establish cause for the default and actual
prejudice resulting from the alleged error.
36 F.3d at 1055 (citation and explanatory parentheticals omitted).
Significant here, ineffective assistance of counsel may constitute cause to excuse
procedural default. See Eagle v. Linahan, 279 F.3d 926, 937 (11th Cir. 2001). And as to actual
prejudice, Knight “shoulder[s] the burden of showing, not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456
U.S. 152, 170 (1982) (emphasis in original). Importantly, in an “extraordinary” case, a federal
court may consider a procedurally defaulted claim in the absence of a showing of cause for the
procedural default where a fundamental miscarriage of justice has “‘probably resulted in the
conviction of one who is actually innocent.’” Smith v. Murray, 477 U.S. 527, 537 (1986)
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(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish actual innocence, [Knight]
must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable
juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998)
(internal quotations marks and citation omitted).
Liberally viewing Knight’s arguments, he appears to argue that Mr. Linton caused the
omissions of claims one, two, and four on direct appeal by filing a “no-merit brief, that worked to
the Government’s benefit and interest to uphold the illegal convictions and sentences.” (Doc. 1
at 17). Thus, Knight appears to argue that Mr. Linton’s alleged ineffective assistance of counsel
constitutes cause to excuse his procedural default of these claims. And as to prejudice, Knight
argues that he was prejudiced by Mr. Linton’s failure to raise the claims on direct appeal because
with “timely and proper objections [his] sentence would not have exceeded 27 months
imprisonment.” (Doc. 7 at 6-7).
Despite Knight’s arguments, the court agrees with the Government that claims one, two,
and four are procedurally barred for failure to raise them on direct appeal. (Doc. 5 at 12). As
discussed above, Knight cannot demonstrate that Mr. Linton rendered ineffective assistance of
counsel for failure to raise these claims on direct appeal, and, therefore, he cannot establish cause
to excuse his failure to raise these claims. Further, even if Knight could show cause for his
default, he cannot demonstrate prejudice resulting from claims one, two, and four because, as
discussed above, these claims lack merit. In sum, claim one, two, and four are procedurally
defaulted for failure to raise the claim on direct appeal, and Knight has failed to establish the
requisite cause for, and actual prejudice from, any alleged error or a miscarriage of justice. As
such, these claims are due to be denied.

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IV. CONCLUSION
For the foregoing reasons, Knight’s motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (doc. 1) and his for rendition and entry of judgment (doc. 12) are due to
be denied. An appropriate order will be entered.
Done this 6th day of July 2012.

L. Scott Coogler
United States District Judge
167458

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