Cargill v. United States of America

Filing 13

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 2/3/16. (SMH)

FILED
2016 Feb-03 AM 09:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HERMAN DEWAYNE CARGILL, )
III,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)

Case No. 2:13-CV-8032-SLB
Crim. Case No. 2:12-CR-0030-SLB-JEO

MEMORANDUM OPINION
This case is presently pending before the court on petitioner’s Motion by a Person in
Federal Custody to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 [Motion
to Vacate]. (Doc. 1; Crim. Doc. 27.)1 Petitioner, Herman Dewayne Cargill, III, has filed the
Motion to Vacate, pursuant to 28 U.S.C. § 2255, asking the court for relief from his 87month sentence. (Doc. 1; see Crim. Doc. 21.) The court has construed the Motion to Vacate
as asserting three grounds for relief:
Ground One: Cargill is actually innocent of Count Two of the
Indictment, alleging a violation of 18 U.S.C. § 924(c), because he did not have
a gun during the carjacking;
Ground Two: Ineffective assistance of counsel based on counsel’s
failure to file pretrial and/or discovery motions; and

1

Citations to documents in the court’s record in petitioner’s Motion to Vacate appear
as “(Doc. __).” Citations to documents in the court’s record in the criminal proceedings
against petitioner, Case No. 5:11-CR-00102-SLB-JEO, appear as “(Crim. Doc. __).” Page
number citations refer to the page numbers assigned to the document by the court’s CM/ECF
electronic filing system.

Ground Three: Prosecutorial misconduct based on the U.S. Attorney’s
failure to prove he had a gun during the carjacking.
(See doc. 1 at 3-4.)2 For the reasons stated below, Cargill’s Motion to Vacate is due to be
denied.
I. BACKGROUND
On February 1, 2012, the Grand Jury returned an Indictment against petitioner Herman
Dewayne Cargill, III, and his co-defendant Jemaris Cortez Gosha.3 (Crim. Doc. 1.) The
Indictment charged Cargill with carjacking in violation of 18 U.S.C. § 2119 [Count One]
and using and carrying a firearm during and in relation to a crime of violence – carjacking
– in violation of 18 U.S.C. § 924(c)(1)(A) [Count Two]. Gosha was charged only under
Count Two because, according to the Government, he had entered a guilty plea in state court
to a charge of robbery arising out of the carjacking at issue in this case. (See doc. 6 at 5
[“Both defendants were initially charged with Robbery, First Degree, in State court.

2

Cargill appears to allege that he is entitled to relief because the Government did not
prove he was prohibited from owning a gun pursuant to Alabama law. (See doc. 1 at 4
[Cargill alleges, “The charges under 18 USCS § 924(c)(1)(A)(ii) should be dismissed
because Movant was not charge[d] under Ala. Code § 13A-11-72(a);” § 13A-11-72(a)
provides that certain individuals are prohibited from owning or possessing as firearm.].) A
violation of § 924(c) does not require proof that the gun used in a violent felony was
unlawfully possessed. See United States v. Rodriguez-Moreno, 526 U.S. 275, 280
(1999)(“To prove the charged § 924(c)(1) violation in this case, the Government was
required to show that respondent used a firearm, that he committed all the acts necessary to
be subject to punishment for . . . [ ] a crime of violence [ ] in a court of the United States, and
that he used the gun “during and in relation to” the [crime of violence].”).
3

Cargill alleges that the Indictment in this case was not signed. (See doc. 1 at 8.) The
signed Indictment was filed under seal. (See Crim. Doc. 1-1.)
2

Defendant Gosha pleaded guilty to that charge prior to the Federal Grand Jury indictment
being returned in this case, so the Federal indictment charged Cargill with carjacking, and
it charged both defendants with using a firearm during the carjacking.”].) The Indictment
charged:
On or about the 22nd day of August, 2011, in Jefferson County, within
the Northern District of Alabama, the defendant,
HERMAN DEWAYNE CARGILL, III,
together with an individual known to the Grand Jury, with the intent to cause
death and serious bodily harm, did knowingly take a motor vehicle from the
person and presence of another by force and violence and by intimidation, said
vehicle being a BMW X5, which had been previously transported, shipped,
and received in interstate commerce, in violation of Title 18, United States
Code, Section 2119.
...
On or about the 22nd day of August, 2011, in Jefferson County, within
the Northern District of Alabama, the defendants,
HERMAN DEWAYNE CARGILL, III and
JEMARIS CORTEZ GOSHA,
did knowingly use and carry a firearm during and in relation to a crime of
violence for which they may be prosecuted in a court of the United States, that
being, Carjacking, as charged in Count One of this indictment, in violation of
Title 18, United States Code, Section 924( c)(1 )(A).
(Crim. Doc. 1.)
Cargill was arraigned on February 16, 2012. Shortly thereafter Magistrate Judge Ott
entered a Scheduling Order and the court’s Standing Discovery Order. (Crim. Docs. 11, 12.)
The Discovery Order provides that the Government “permit the defendant to inspect and
3

copy” certain documents that “are within the possession, custody, and/or control of the
government, or the existence of which is known or by the exercise of due diligence may
become known to the attorney for government.” (Crim. Doc. 12 at 1-2.) The Government
alleges that “No documents [were] withheld in this case.” (Doc. 6 at 11-12.) The case was
set on the trial docket of April 2, 2012. (Crim. Doc. 11 at 1.) However, prior to that date,
the court was notified that Cargill wished to plead guilty; a change of plea hearing was set
for March 26, 2012.
On that day, after placing Cargill under oath, the court engaged in the following
discussion with Cargill and counsel:
THE COURT: Mr. Cargill, I want you to listen carefully to what the
Assistant U.S. Attorney is going to say. He is now going to outline for you and
for me briefly certain of the facts he would expect the government to prove
should this case proceed to trial.
If while he is speaking he says anything that is not true or that you do
[not] believe the government can prove, I want you to interrupt him and let me
know. Do you understand?
THE DEFENDANT: Yes, ma'am.
THE COURT: Mr. Weil.
MR. WEIL [Assistant United States Attorney]: . . .
...
. . . On August 22nd at about 5:00 o'clock in the morning, two males
followed the victim to a Birmingham, Alabama hotel as she left her place of
employment, which is The Palace. After the victim parked and waited in her
vehicle, which is BMW X5, the males rushed up to the victim, demanded her

4

money, her purse, her cell [phone] and her car keys and ordered her to exit the
vehicle.
According to the victim, both of the males were armed with handguns
and threatened to shoot her if she did not heed their demands.
THE COURT: He's shaking his head no.
THE DEFENDANT: No.
THE COURT: What's not true?
THE DEFENDANT: About both of us having guns.
THE COURT: Who had a handgun?
THE DEFENDANT: Gosha.
THE COURT: And you say you did not?
THE DEFENDANT: No, ma'am.
MR. WEIL: The victim said they both had handguns. He has
maintained from the beginning that he didn't have a handgun. Gosha stated
that [Cargill] had the handgun, and that Gosha didn't have the handgun.
THE COURT: And the victim says they both had handguns?
MR. WEIL: They both had handguns. So the evidence we would
present –
THE COURT: Go ahead and finish, and I'm going to come back and
talk to him in a minute.
MR. WEIL: Regardless –
THE COURT: Well, under an aiding and abetting theory, he could be
found liable even if he –
MR. O'KELLEY [Cargill’s Counsel]: That's correct.
5

THE COURT: But I will explain all that to him in a minute. Mr.
Gosha says [Cargill] had the handgun, not Mr. Gosha?
MR. WEIL: Right.
THE COURT: Go ahead.
MR. WEIL: When he was first interviewed. I'm not sure what his
position is now.
THE COURT: I can't remember what [Gosha] said [the] other day. He
pled guilty to that count. Go ahead.
MR. WEIL: So after being threatened by these two individuals, one of
which at least had a gun, the victim complied. And one of the robbers fled in
her vehicle, and the other robber fled from the scene in the Ford Expedition
that they had driven to the scene of the crime. That happened to be Mr.
Cargill.
The victim immediately called the police, described the assailants and
the vehicles, and a be-on-the-look-out was placed over the police radios.
Within approximately a half hour, a vehicle matching the description of the
Expedition was stopped by the police. This defendant, Cargill, was driving
that vehicle.
At that time, he gave conflicting information to the police regarding his
name and date of birth. The victim was brought to the scene of the traffic stop,
and she positively identified this defendant as one of the assailants and the
vehicle as being used in the robbery.
They also seized from this defendant $420 of the $500 that was stolen
from the victim. They also discovered that the Expedition that he was driving
was registered to the grandfather of the co-defendant, Mr. Gosha.
So they arrested Mr. Cargill. He was read his Miranda rights. After
waiving his Miranda rights, he admitted that he had participated in the
carjacking along with Defendant Gosha. He first stated that Gosha forced him
to commit the crime and that Gosha was the only one with the firearm.

6

A photo lineup was shown to the victim, and she positively identified
Defendant Gosha as the other assailant in the carjacking. The victim reiterated
at that time that both defendants possessed firearms, and both of them
threatened her during the robbery/carjacking.
The next day on August 23rd, the co-defendant, Mr. Gosha, voluntarily
came down to the police station. And after he waived his Miranda rights, he
too confessed to the robbery and carjacking. He also admitted he had filed a
false police report on August 22nd claiming that his Expedition had been
stolen from him, and then he actually led the investigators to the stolen BMW
that he had placed somewhere else. So he actually took them and they
recovered the stolen BMW.
When the police allowed defendant's grandfather, who was the actual
owner of the vehicle, to attain the Expedition from the towing company, they
searched it before they released it to him, and they found underneath the front
passenger seat a Jennings nine millimeter pistol under that front passenger
seat. Presumably, that's one of the guns at least that was used during the
carjacking.
Finally, we would show that the car that was carjacked, the victim's
vehicle, the BMW X5 was manufactured outside of Alabama, thereby
providing the interstate nexus to the federal carjacking.
THE COURT: And, again, the victim said they both had guns, and then
Mr. Gosha said it was this defendant that had the gun; is that right? Is that
what your evidence would be?
MR. WEIL: I'm not sure what Mr. Gosha says now. That's what he
said when he was first interviewed.
THE COURT: Mr. O'Kelley, I should know this, and I just want to
make sure I'm right about this before I say this to him, he could be found
liable under an aiding and abetting theory under Count Two?
MR. O'KELLEY: We agree with that.
THE COURT: You agree with that? Do you agree with that also?
MR. WEIL: Yes.
7

THE COURT: Of the substantive offense.
MR. WEIL: Absolutely.
THE COURT: [To Cargill:] Let me explain this to you, because I want
you to understand the law with regard to this before you decide about pleading
guilty. You say you didn't possess the firearm. And under the law, there's a
statute, 18, U.S. Code, Section 2, which is called aiding and abetting.
And let me explain it to you in a different way. Let's say there's a bank
robbery, and a person drives the people – he knows that they're going to rob
the bank. He's going to park around the corner from the bank for the people
who are robbing the bank to come to later.
His friends go inside to rob the bank. They run around the corner get
in the car with him – or let's say he even drives off, he can be found liable for
bank robbery under an aiding and abetting theory even though he didn't go in
the bank. Even though he didn't actually rob the bank, he was aiding and
abetting the people who robbed the bank, and he could even be found liable of
a gun violation if they had a gun when they walked in the bank.
Do you understand what I just said to you?
THE DEFENDANT: Yes, ma'am.
THE COURT: So if the jury believes beyond a reasonable doubt, if the
government proves to them that you, in fact, were involved in this carjacking
and if they believed – let's say if you decided to testify and said, I didn't have
the gun; but, if they believed you were involved in that carjacking, you could
be found guilty of Count Two under an aiding and abetting theory if they find
that your co-defendant had the gun.
Do you follow what I'm saying?
THE DEFENDANT: Yes, ma'am.
THE COURT: So, basically, the government would not have to prove
at trial beyond a reasonable doubt that you, in fact, even though it's charged
that way, that you, in fact, had the gun, if the jury believed, number one, you

8

committed Count One and if they believed your co-defendant had the gun.
Do you see what I'm saying?
THE DEFENDANT: Yes, ma'am.
THE COURT: Now, I don't want you to plead guilty to Count Two
unless you are, in fact, guilty of Count Two under either the theory of aiding
and abetting, in other words, that your co-defendant had a gun – do you say
he had a gun?
THE DEFENDANT: Yes, ma'am.
THE COURT: Okay. Or, in fact, if you had a gun. So do you wish
to plead guilty to both Counts One and Two?
THE DEFENDANT: Yes, ma'am.
THE COURT: And you understand what the government would have
to prove?
THE DEFENDANT: Yes, ma'am.
THE COURT: Okay. And other than what you just said, the only part
that you would change about what they said is you didn't have the gun, your
co-defendant had the gun; is that right?
THE DEFENDANT: Yes, ma'am.
THE COURT: All right. Mr. Cargill, you are not required to enter a
plea of guilty to Count[s] One and Two of the indictment, and you are free at
this time to withdraw your plea of guilty and re-enter a not guilty plea.
Have you heard anything here today that causes you to want to
reconsider your decision to enter a plea of guilty to Counts One and Two?
THE DEFENDANT: No, ma'am.
THE COURT: Do you still desire to enter your plea of guilty to those
counts?

9

THE DEFENDANT: Yes, ma'am.
THE COURT: The court finds your pleas of guilty are freely and
voluntarily entered and the requisite factual basis for the pleas exist. The pleas
of guilty are accepted by the court.
(Crim. Doc. 28 at 14-22 [emphasis added].)
At the sentencing hearing the following occurred:
MR. O'KELLEY: I would like to speak initially, if I could, Your
Honor. As the court is aware, I did file a sentencing memorandum with a
motion for a variance. And while I realize that, without the benefit of a 5K,
which I will address in just a second, the court cannot do anything with regard
to the seven year sentence, but I think the court is empowered to do something
with regard to the sentence called for in Count One, which is the 33 to 41
month sentence should the court deem a variance proper.
Herman Cargill, I really can't say anything other than what I said in the
memo and in the basis of my motion. He's 19 years old, Your Honor. He has
never in his life been arrested until the incident that took place here.
THE COURT: Explain to me why they did this. What was this about,
I mean, needing money for something? What was the reason that they did it?
MR. O'KELLEY: I do not think that – I think it was an alcohol
induced, you know –
THE COURT: They had a car though. It's not like – what was the
reason?
MR. O'KELLEY: I understand. I can't – I don't know. It was his
birthday, and they go out and they do something incredibly stupid. They do
something incredibly dangerous, and I don't know that anybody can really
explain why these two did it in the middle of the night.
I referred to it as a gentlemen's club in the memo. It was a strip joint,
and it just escalated to something that never, ever should have happened, and
he is extremely remorseful. I would ask the court to consider his age, the fact
that he graduated timely from high school. He actually walked and received
10

a diploma with the other members of his class; i.e., he completed 12 years and
got a diploma.
While at Jackson Olin, he was a football player and a rather good one
from what I understand. He wound up blowing his knees out. But he's had –
he honestly has had a tough life. His mamma died when he was eight. His
father has been incarcerated by the State of Alabama for most of his life. . . .
And I represent to you, even though we pled blind, Mr. Weil and I
discussed the potential for a 5K. And even without a plea agreement, what
they were looking for, quite frankly, is some of the marshal's service
approached Jim and he approached me, they were looking for this man's uncle,
who he hasn't seen in a long time. And, of course, if he could help them in
getting his uncle, who may be a fugitive, then the potential for a 5K was there,
but he didn't know where his uncle was. And I even asked him as late as this
morning if there was any way that he had ascertained any knowledge of his
uncle and he said he just hasn't heard. So we did explore that.
Sentencing, Your Honor, in these sentencing memorandums, we put a
lot of stuff in there about the law. Well, you know all of that, and maybe we
ought to leave that stuff out and just get to the facts as they are about our
clients, because what we're looking for is a sentence that is sufficient but not
greater than necessary.
And realizing that there's nothing I can do with the seven years, I'm
asking the court to vary downwardly based on his youth and his background
and the fact that he's had no arrests. He doesn't have any drug issues. And I'm
just asking you to vary downward to an eight year sentence, 84 months on
Count Two, the seven year sentence and then vary downwardly from the low
end of 33 to 12 on the other.
THE COURT: Mr. Cargill, is there anything you would like to say
before sentence is imposed?
THE DEFENDANT: I just apologize for what happened about the
situation.
(Doc. 29 at 5-7.)

11

When asked by the court to explain what happened, Cargill stated only that he was
drunk, that he did not remember discussing the carjacking with Gosha before it happened,
and that he had “no idea” what he was thinking. (Id. at 8.) He did not tell the court that
Gosha forced him to participate in the carjacking. (See id. at 8-9.) The court imposed a
custodial sentence of 87 months – 3 months as to Count One and the mandatory minimum
of 84 months on Count Two. (Id. at 14; see also Crim. Doc. 21.) Cargill did not appeal his
conviction and/or sentence.
Cargill timely filed a Motion by a Person in Federal Custody to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255. (Doc. 1; Crim. Doc. 27.)
II. DISCUSSION
A. SECTION 2255 STANDARD
This court has held that the habeas petitioner “has the burden of showing he is entitled
to relief from his sentence pursuant to 28 U.S.C. § 2255. 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 on direct appeal and would, if condoned, result in a
complete miscarriage of justice.” Bryant v. United States, No. 5:07-CR-0205-SLB-PWG,
2014 WL 519619, at *7 (N.D. Ala. Feb. 10, 2014)(quoting Richards v. United States, 837
F.2d 965, 966 (11th Cir. 1988) and citing LeCroy v. United States, 739 F.3d 1297, 1321 (11th
Cir. 2014) and Greene v. United States, 880 F.2d 1299, 1301 (11th Cir. 1989))(internal
quotations and citations omitted).

12

When a habeas petitioner has been convicted based on a plea of guilty and he makes
“statements under oath at a plea colloquy, ‘he bears a heavy burden to show his statements
were false.’”

Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir.

2014)(quoting United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988)(per curiam)). His
“solemn declarations in open court carry a strong presumption of verity.” Id. (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Also his guilty plea waives all but certain,
well-defined claims:
After a criminal defendant has pleaded guilty, he may not raise claims relating
to the alleged deprivation of constitutional rights occurring prior to the entry
of the guilty plea, but may only raise [1] jurisdictional issues, United States v.
Patti, 337 F.3d 1317, 1320 (11th Cir. 2003), cert. denied, 540 U.S. 1149, 124
S. Ct. 1146, 157 L. Ed.2d 1042 (2004), [2] attack the voluntary and knowing
character of the guilty plea, Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct.
1602, 36 L. Ed. 2d 235 (1973); Wilson v. United States, 962 F.2d 996, 997
(11th Cir.1992), or [3] challenge the constitutional effectiveness of the
assistance he received from his attorney in deciding to plead guilty, United
States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir.1986). In other words, a
voluntary and intelligent plea of guilty made by an accused person who has
been advised by competent counsel may not be collaterally attacked. Mary v.
Johnson, 467 U.S. 504, 508 (1984). A guilty plea must therefore stand unless
induced by misrepresentation made to the accused person by the court,
prosecutor, or his own counsel. Mary, 467 U.S. at 509, quoting, Brady v.
United States, 397 U.S. 742, 748 (1970). If a guilty plea is induced through
threats, misrepresentations, or improper promises, the defendant cannot be said
to have been fully apprised of the consequences of the guilty plea and may
then challenge the guilty plea under the Due Process Clause. Mary, 467 U.S.
at 509. See also Santo Bello v. New York, 404 U.S. 257, 92 S. CT. 495, 30 L.
Ed. 2d 427 (1971).
Caceres v. United States, No. 13-22901-CIV, 2014 WL 5761112, at *8 (S.D. Fla. Nov. 5,
2014). “The subsequent presentation of conclusory allegations unsupported by specifics is

13

subject to summary dismissal, as are contentions that in the face of the record are wholly
incredible.” Blackledge, 431 U.S. at 74.
B. ACTUAL INNOCENCE OF § 924(c) COUNT
Grounds One and Three of the Motion to Vacate are based on Cargill’s claim that he
is “actually innocent” of Count Two, brandishing a gun during a crime of violence, because
he did not have a gun at the time of his arrest. (Doc. 1 at 3-4.)4 However, during the plea
colloquy, he admitted that his co-defendant had a gun and he admitted he could be found
guilty of this charge for aiding and abetting his co-defendant in the car-jacking even if he did
not have a gun.5 (Crim. Doc. 28 at 16, 19-22.) Cargill alleges no facts that would show that
4

Ground One alleges that Cargill was actually innocent because “there [was] no
weapon seized after his arrest,” (doc. 1 at 3 [alteration in original omitted]), and Ground
Three alleges misconduct by the Government based on failure to submit evidence that Cargill
did not possess the gun during the carjacking, (id. at 4, 6-8).
5

With regard to aiding and abetting, the Supreme Court has held:

. . . An active participant in a [violent felony] has the intent needed to aid and
abet a § 924(c) violation when he knows that one of his confederates will carry
a gun. In such a case, the accomplice has decided to join in the criminal
venture, and share in its benefits, with full awareness of its scope – that the
plan calls not just for a [violent felony], but for an armed one. In so doing, he
has chosen . . . to align himself with the illegal scheme in its entirety –
including its use of a firearm. And he has determined . . . to do what he can
to make that scheme succeed. He thus becomes responsible, in the typical way
of aiders and abettors, for the conduct of others. He may not have brought the
gun to the [violent felony] himself, but because he took part in that deal
knowing a confederate would do so, he intended the commission of a § 924(c)
offense – i.e., an armed [violent felony].
Rosemond v. United States, 134 S. Ct. 1240, 1249, 188 L. Ed. 2d 248 (2014)(internal
citations, quotations and original alterations omitted).
14

these statements, made under oath at the plea colloquy, were false. See Winthrop-Redin v.
United States, 767 F.3d 1210, 1217 (11th Cir. 2014)(quoting United States v. Rogers, 848
F.2d 166, 168 (11th Cir. 1988)(per curiam)).
Therefore, the Motion to Vacate will be denied as to Grounds One and Three.
C. GROUND TWO – INEFFECTIVE ASSISTANCE OF COUNSEL
1. Alabama Law
Cargill contends that he was denied effective assistance of counsel because –
Counsel[’s] performance was poor according to the BOP Criminal Defense
Techniques Law computer, the defense counsel[’s] representation was poor,
and it [fell] below the standards of the Canon Codes on Professionalism where
no jurist of reason would have found the federal crime absent proof of Ala.
Code 1975 §§ 15-9-20/15-9-65?6
(Doc. 1 at 3-4.)
The court disagrees with Cargill’s statement that he could not be found guilty of a
federal crime absent proof that Alabama law was met. Moreover, the two statutes he cites
concern extradition – § 15-9-20 sets forth the definitions used in the Code and § 15-9-65
concerns reimbursement of “fees and expenses of sheriff when accused returns without
requisition.” Ala. Code §§ 15-9-20, 15-9-65. Neither statute has any relevance to these
proceedings. Cargill’s crimes were committed in Jefferson County, Alabama, and he was

6

These sections of the Alabama Code relate to extradition and the procedures for the
return of individuals to Alabama for prosecution. Section 15-9-20 provides definitions for
certain terms used in the code and section 15-9-65 allows the county sheriff to request fees
and expenses when the wanted individual consents to return to Alabama.
15

arrested in Jefferson County, Alabama. Therefore, the court finds Cargill’s assertion that “no
jurist of reason would have found the federal crime absent proof of Ala. Code 1975 §§ 15-920/15-9-65” to be devoid of any legal merit.
2. Pretrial Motions
Also, because Cargill entered a knowing and voluntary plea of guilty, his “claim of
ineffective assistance of counsel” is barred except “to [the] extent the alleged ineffectiveness
bears upon the voluntariness of the plea itself.” Lopez v. Sec'y, Dep't of Corr., No. 8:13-CV1998-T-33AEP, 2015 WL 1880757, at *9 (M.D. Fla. Apr. 24, 2015)(citing Hill v. Lockhart,
474 U.S. at 52, 53-59 (1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973)); see also
Caceres, 2014 WL 5761112, at *12 (“Caceres attempts to undermine the lawfulness of his
guilty plea by challenging the pre-plea representation received from trial counsel, alleging
that his lawyer failed to conduct a proper investigation into the facts of the case, file various
pretrial motions and present various defenses. Such allegations do not relate to the
voluntariness of the plea.”)(citing United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992)
(per curiam).
The well-established law provides, “A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment. The court must then determine
whether, in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. 668,

16

690 (1984). In his Motion to Vacate, Cargill identifies only one omission; he contends that
his “Defense counselor fail[ed] to file proper pre-trial motions.”7 (Doc. 1 at 3.) Such error,

7

Specially, Cargill contends that certain records “were not made a part of the charges
alleged by the [Government],” including:
1.

Cargill's Alabama Uniform Arrest Report Dated 8/22/2011, 5:30 A.M.;
See Section 40 Armed? [N]; #000017;

2.

[Victim’s allegation] that there were (2) Glock hand-Guns involved on
8/22/2011 5:10A.14. [Cargill had no weapon]? #000015;

3.

8/22/2011, 5:30A.M. Arrest Narrative by [Officer Wald] about the
arrest of Cargill/Carrington from the response of the robbery; #000018;

4.

On 8/23/2011, 10:10 J. Rodriguez-399-Follow-Up Supplement, at
paragraph-5, Gosha threatens Cargill before the Robbery and insist[s]
that he did not have a weapon, the arrest report affirms; #000007;

5.

On 8/24/2011, 11:15 J. Rodriquez-399-Follow-Up Supplement, at The
Government overlooked the facts that Herman Dewayne Cargill, III,
had employment (40) Hours a week, at Birmingham Civil Rights
Institute with a Monthly Income of $1,191.67 and had been working 7.0
Months, and the fact that Gosha was complaining about being broke
and trying to take care of his child paragraph-4-at exhibit #4-Cargill
#000007; His story [carries] more weight than Gosha and he informed
the officers that he had only $20 dollars of the victim[’]s money,
Cargill offer to show the officers payments receipts from his
employment, but was denied to present them; this is common in most
of these type of crimes; Cargill did not have a motive;

6.

Summary 8/24/2011, 08:58; Cargill Discovery #000011, after Cargill
was arrested on 8/22/2011 in exhibits 4 & 5 Cargill did not have a
weapon, and none was recovered on 8/22/2011 The Summary Report
Gosha knew exactly what kind of gun they had with them and the gun
was recovered in the vehicle he brought to the scene. The facts that
Cargill stated that he did not want to take part in the robbery, and the
fact that Cargill had active employment, no jurist of reason would have
17

found him guilty as a willing participant if defense counsel would have
filed proper defense pre-trial motions; #000011 Cargill Discovery;
7.

Defense Counsel could have presented Homewood Police Dept. Advice
of Adult Miranda Warning-Consent by his client Herman Cargill,
[dated] 9/22/2011 to show that his client was a victim of a crime he was
willing to not take part in, and with the fact that [no weapon] was
recovered on his arrest "NO" Federal Crime existed; Cargill Discovery
#000021;

8.

Photo Lineup dated 8/22/2011; where victim pick Gosha #5, if Cargill
was place in a Lineup before the victim was brought to the Traffic-stop
arrest even a weapon was not found[ ] would the victim pick Cargill as
the Robber? Defense counsel services fell below the codes of canon;
Cargill Discovery #8264568;

9.

Discovery Cargill #000050, Copy of Alabama Judicial Information
System Case Summary District Criminal CASE: DC 20/1 007927, State
of Alabama vs. Gosha Jemaris, DC 9181, Co-D Herman Cargill, 11
7918, "waived 10/17/20/1; No charges from 8/22/2011;

10.

Copy – Cargill Discovery from the District Court of Alabama
Jefferson-Birmingham, Felony Sentencing Order One & Two of
Jemaris Gosha #000052;

11.

Copy of Electronically Filed 9/15/2011;11:31 AM; DC-2011-007-927,
Circuit Court of Jefferson County, Alabama, Anne-Marie Adams,
Clerk, the Case against Cargill 8/22/2011 was resolved after [“NO”]
weapon was found in the Vehicle when he was arrested, and Jemaris
Gosha admitted to the weapon during his in Cargill Discovery #000011;
Pages One & Two;

12.

Copy of FBI Unclassified Report withheld by Defense Counsel and the
Government dated 8/23/2011 Cargill Discovery #000005, & 000006 on
Cargill's arrest date 8/22/2011 [“NO”.] weapon was found; This report
was drafted by Keeler Harold S:hsk? [Harold S. Keeler]

13.

Copy of FBI Unclassified Report withheld by Defense Counsel and the
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occurring before the guilty plea, is waived by Cargill’s knowing and voluntary guilty plea.

Government dated 9/9/2011; remember Jemaris Gosha was sentence[d]
6-days later, it was the Government who withheld the Homewood
Police Dept. arrest report of Cargill dated 8/22/2011 where in
paragraph-40-Armed [X] NO; Also Drafted by [Harold S. Keeler]; was
there a federal crime proven under Article I, Section-8, Clause-17, or
authorize defined under Adams v. United States, 319 U.S. 312 (1943);
§ 748 - Federal Criminal Jurisdiction, did the indictment contain
FRCVP-44(a), FRCRP-6(f), 54(c), 28 USCS §§ 631-639? Cargill
D-#000001, 000002, 000003, & 000004; Four pages;
14.

Four pages Pretrial Services Report describing Cargill's Employment
History/Financial Resources, which further proves that Herman
Dewayne Cargill, III did not have a motive to ROB anyone and
expressed his feelings about not robbing the victim, if not for Jemaris
Gosha telling him he was going to be shot if he did not participate, base
on the arrest report Cargill did not have a weapon, and the weapon was
discovered when the vehicle was returned to his Grand-father the court
must dismiss the indictment, conviction, sentence and 3 years SRT
base[d] on the violation of the “fruits of the poisonous tree doctrine”;

15.

Copy of Two pages Case 2:12-cr-00030-SLB-JEO *SEALED*
Document 1 Filed 02/01/12; almost 5½ months after Gosha was
sentence and 5½ months past the time for the return of the indictment
FRCRP-6(f), 54(c), 28 USCS §§ 631-639, no magistrate, no judge, and
no foreman signature on the indictment[.]

(Doc. 1 at 7-8.) Nothing in Cargill’s submissions demonstrates that these documents were
not disclosed to defense counsel. Indeed, it appears that Cargill obtained these documents
from defense counsel. (See id. at 16-39.) In response tro Cargill’s Motion,m the
Government contends, “Cargill complains that the Government withheld information, and
then he cites examples by listing the documents that WERE supplied in the discovery. No
documents have been withheld in this case.” (Doc. 6 at 11-12 [emphasis in original].)
Cargill has offered nothing to rebut the Government’s contention.
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Nevertheless, this claim fails on its merits because Cargill has not, and cannot,
complain that counsel’s failure to file pretrial motions caused him prejudice.
To prevail on his claim [of ineffective assistance of counsel in violation of] the
Sixth Amendment, [Cargill] must establish that his “counsel’s representation
fell below an objective standard of reasonableness” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Hill v. Lockhart, 474 U.S. 52,
57, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985)(quoting Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed.
2d 674 (1984))(internal quotation marks omitted). . . .
“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.” Id. at 58-59, 106 S.
CT. at 370. “Moreover, to obtain relief on this type of claim, a petitioner must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372,
130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010).
Diveroli v. United States, 803 F.3d 1258, 1262-63 (11th Cir. 2015). “[W]here 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.” Hill, 474 U.S. at 59.
Cargill contends his counsel should have discovered and argued the fact that he did
not use a gun during the carjacking. However, this “fact” was discussed by the court with
Cargill at the plea colloquy. Everyone, including Cargill and the court, was aware that
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Cargill had maintained he did not have a gun during the carjacking, he did not use a gun
during the carjacking, and he did not have a gun when he was arrested.8 Nevertheless Cargill
testified at the plea colloquy that he was guilty of Count Two of the Indictment, charging the
use of a weapon during the carjacking, either because he had a gun or because Gosha had a
gun, in which case he was guilty of aiding and abetting the gun crime. He does not allege
that but for his counsel failing to file pretrial motions – to obtain discovery the Government
had provided without a motion and which contained facts of which Cargill himself was aware
– he would not have pleaded guilty and would have insisted on going to trial. Moreover, the
court finds Cargill has not alleged facts sufficient to show a decision to go to trial would have
been rational under the circumstances.
Thus, the court finds that Cargill has not established that he is entitled to relief from
his conviction and sentence based on ineffective assistance of counsel.

8

The court notes that Cargill’s statements are not undisputed. In the victim’s
statement, she said that both Cargill and his co-defendant had guns. Also, a gun was found
in the vehicle Cargill was driving. The vehicle, which was in police custody from the time
Cargill was stopped after the carjacking until searched by police, was the vehicle Gosha and
Cargill had driven to the site of the carjacking. Gosha, who Cargill contends had the gun
during the carjacking, did not return to this vehicle after the carjacking. Therefore, the
weapon found in the vehicle could not be the weapon Gosha used in the carjacking. The
reasonable inference from this evidence is that this gun was the one the victim alleged Cargill
had used during the carjacking.
21

CONCLUSION
Based on the foregoing, the Motion to Vacate filed by petitioner Herman Dewayne
Cargill, III, (doc. 1), is due to be denied. An Order denying the Motion to Vacate will be
entered contemporaneously with this Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or
a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2)(emphasis added).

To make a substantial showing of the denial of a

constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).

22

Cargill has not demonstrated that he was denied any constitutional right or that the
issues he raises are reasonably debatable and/or deserve encouragement to proceed further.
Therefore, issuance of a certificate of appealability is not warranted in this case.
DONE this 3rd day of February, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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