Riggs v. United States of America

Filing 76

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 5/2/2018. (KAM)

FILED
2018 May-02 AM 11:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KELLY PATRICK RIGGS,
Plaintiff,
v.
UNITED STATES OF AMERICA
Defendant.

]
]
]
]
]
]
]
]
]

2:15-cv-08043-KOB

MEMORANDUM OPINION
The movant Kelly Patrick Riggs pled guilty to one count of attempted enticement of a
minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of transfer
of obscene material to a minor, in violation of 18 U.S.C. § 1470. (Cr. Doc. 89). 1 The court
sentenced him to 120 months imprisonment on each count, to run concurrently. (Id.). Mr. Riggs
moved, under 28 U.S.C. § 2255, to vacate his sentence. (Doc. 1). After the government
responded (doc. 13), Mr. Riggs moved to amend his § 2255 motion. (Doc. 59). The court
granted the motion to amend, and Mr. Riggs filed an amended § 2255 motion and a motion for
appointment of counsel. (Docs. 63, 67). The Government responded to the amended § 2255
motion and Mr. Riggs replied. (Docs. 72, 75).
In his amended § 2255 motion, Mr. Riggs contends that (1) his guilty plea was not
intelligent, knowing, and voluntary; (2) counsel was ineffective because he had a conflict of
interest; and (3) he is actually innocent. (Doc. 63). The court WILL DENY Mr. Riggs’ § 2255
motion because the record confirms that Mr. Riggs’ challenge to his guilty plea is procedurally
barred and procedurally defaulted; Mr. Riggs waived the alleged conflict of interest; and

1

The court cites documents from Mr. Riggs’ underlying criminal case, United States v.
Riggs, 2:12-cr-00297-KOB-JEO, as “Cr. Doc. __.”

Mr. Riggs’ freestanding claim of actual innocence is not cognizable in a § 2255 motion. The
court WILL DENY AS MOOT Mr. Riggs’ request for appointment of counsel.
I.

BACKGROUND

In 2012, a grand jury charged Mr. Riggs with one count of enticing a minor to engage in
criminal activity in violation of 18 U.S.C. § 2422(b) and one count of transfer of obscene
material to a minor in violation of 18 U.S.C. § 1470. (Cr. Doc. 6). The court appointed Jeffrey
Bramer as his defense attorney. (Cr. Doc. 3). Mr. Bramer, however, quickly withdrew as
counsel based on an undisclosed “ethical issue.” (Cr. Doc. 18 at 2; Cr. Doc. Minute Entry,
Oct. 9, 2012).
Next, the court appointed David Luker as Mr. Riggs’ defense attorney. (Cr. Doc. 20).
While represented by Mr. Luker, Mr. Riggs filed a pro se motion seeking to represent himself.
(Cr. Doc. 28). A magistrate judge held a hearing, at which he allowed Mr. Luker to withdraw
and appointed the Federal Public Defender to represent Mr. Riggs. (Cr. Doc. 100 at 16–17).
Allison Case and Glennon Threatt entered appearances as Mr. Riggs’ public defenders.
(Cr. Docs. 35, 36). While they were representing him, Mr. Riggs filed a pro se motion seeking
subpoenas for various witnesses, including seven alleged alibi witnesses and three character
witnesses. (Cr. Docs. 45, 105). After holding a hearing on the motion, the magistrate judge
issued all of the requested subpoenas. (Cr. Docs. 46, 105).
Mr. Riggs next filed a pro se motion requesting that the court hold a hearing on whether
Mr. Threatt had a conflict of interest. (Cr. Doc. 51). Mr. Riggs alleged that members of a prison
gang had threatened to harm or kill Mr. Threatt and his family, and stated that he had also told
Mr. Threatt about “a confession to killing a co-conspirator and the intent to kill witnesses of that
event.” (Id. at 2). Although that pro se motion itself did not state who the alleged co-conspirator

2

was, who made the alleged confession, or what its relation to Mr. Riggs’ criminal case was,
Mr. Riggs’ current § 2255 motion makes it apparent that Mr. Riggs was referring to another of
Mr. Threatt’s clients, a man named Alvin Johnson, who Mr. Riggs says confessed to killing
another man named DeAndre Washington. (See Doc. 63 at 6–8).
On September 5, 2013, the magistrate judge held a hearing on Mr. Riggs’ allegation
about Mr. Threatt’s alleged conflict of interest. (Cr. Doc. 109). The magistrate judge indicated
that Mr. Threatt “was aware of [the threat against Mr. Threatt] and [he] has already discussed it
with the Federal Defender, Mr. Butler, and they reached the conclusion that no further action
would be taken on their part at the present time . . . . And they also did make their own
independent inquiry as to whether or not there’s a conflict issue. And . . . Mr. Threatt . . . and
Mr. Butler did not believe there was a conflict.” (Id. at 7). Mr. Riggs then told the magistrate
judge that he had discussed the issue with Mr. Threatt several days earlier and they had
“determined that it was not going to be an issue,” but by then, he had already mailed the motion.
(Id.). After the hearing, the magistrate judge entered an order stating that he was “convinced
there is no conflict in the representation of the defendant by present counsel.” (Cr. Doc. Minute
Entry, Sept. 5, 2013).
At the same hearing, Mr. Riggs stated that when he mailed the motion requesting a
hearing on Mr. Threatt’s alleged conflict, he also mailed two other pleadings, one of which was a
notice of alibi. (Doc. 109 at 3–5). The magistrate judge noted that the court had not yet received
those filings. (Id. at 3–4). Mr. Riggs stated that, since mailing the notice of alibi, he had spoken
with Mr. Threatt and they had “come to a point.” (Id. at 5). Neither Mr. Riggs nor Mr. Threatt
disclosed the content of their discussion, but Mr. Riggs indicated that he was “satisfied with the

3

results of [that] conversation,” and Mr. Threatt indicated that he was not planning to file a notice
of alibi. (Id. at 5–6).
Mr. Riggs requested to withdraw the two pleadings that he had mailed. (Id. at 13–14).
The magistrate judge stated that he would review them before allowing Mr. Riggs to withdraw
them. (Id.). The record does not include an order permitting withdrawal, nor does it contain the
two pleadings.
The day after the conflict hearing, Mr. Riggs entered a plea agreement with the
Government, in which he agreed to plead guilty to both counts against him. (Cr. Doc. 55). The
plea agreement described the factual basis of the crime. (Id. at 3–5). It stated that, on May 23,
2012, Mr. Riggs responded to an internet advertisement and emailed an undercover law
enforcement officer whom he believed to be a 14 year old girl. (Id. at 2–3). Over the next few
days, he emailed and texted with the undercover officer, sending her nude pictures of an adult
man’s body and asking for nude pictures in return. (Id. at 3–4). He eventually arranged to meet
the purported 14 year old girl at a bowling alley around 10:00 am on May 26, 2012, but when he
arrived there at 10:20 am, law enforcement officers arrested him. (Id. at 4–5).
At Mr. Riggs’ change of plea hearing, Mr. Riggs stipulated that the factual basis set forth
in the plea agreement was accurate. (Cr. Doc. 62 at 25–26). The court asked Mr. Riggs: “Has
anyone promised you anything or threatened you in any way to encourage you to enter this plea
of guilty?” (Id. at 16). Mr. Riggs responded, “No.” (Id.). The court also asked Mr. Riggs if he
was “satisfied with Mr. Threatt and the work that he has done,” to which Mr. Riggs responded,
“Yes.” (Id. at 24).
The next month, Mr. Riggs filed a pro se motion to withdraw his guilty plea and to
replace his attorney. (Cr. Doc. 57). In the motion, he stated that he had entered the plea

4

agreement under duress because (1) a gang had threatened his family, and (2) Mr. Threatt had
told him the only way to get a reduction in his sentence was to plead guilty. (Id. at 1–2). He
explained that, on the day of the prior conflict hearing, he had given a statement against
Mr. Threatt’s other client, Alvin Johnson, because Mr. Johnson had made a jailhouse confession
to the murder of DeAndre Washington and had threatened Mr. Threatt and Mr. Threatt’s family.
(Id. at 2, 6, 8). According to Mr. Riggs, after he notified Mr. Threatt of those matters,
Mr. Threatt told Mr. Johnson that Mr. Riggs “was a problem to [Mr. Johnson’s] case.” (Id. at 6).
Mr. Riggs also alleged that Mr. Threatt had told a United States marshal that “this was a
conflict.” (Id.).
The magistrate judge held a hearing on the portion of the motion seeking to discharge
counsel. (Cr. Doc. 111). Expressing concern about potentially breaching attorney-client
privilege and revealing defense strategy, the magistrate judge told Mr. Riggs not to reveal any
confidential communications between his attorney and himself. (Id. at 7–8). But when the
magistrate judge asked Mr. Threatt if he opposed Mr. Riggs’ motion for a new attorney,
Mr. Threatt said he did not. (Id. at 6).
After that hearing, the magistrate judge entered an order stating that “the interests of
justice warrant the release of the Federal Defender and the appointment of new counsel. The
court notes that the decision in no way reflects on the performance of counsel, but is indicative of
the defendant’s narcissistic personality.” (Cr. Doc. 59 at 4). The magistrate judge appointed
Brett Bloomston as Mr. Riggs’ fifth appointed attorney. (Cr. Doc. 60).
The court then held a hearing on the motion to withdraw Mr. Riggs’ guilty plea.
(Cr. Doc. 114). Mr. Riggs told the court that after the first conflict hearing on September 5,
2013, at which the court had ruled that Mr. Threatt had no conflict, Mr. Riggs met with a United

5

States deputy marshal about Mr. Johnson’s statements. (Id. at 4–5). At that time, Mr. Threatt
told the marshal that because Mr. Johnson was another of his clients, he could not represent
Mr. Riggs during the marshal’s interview of Mr. Riggs. (Id. at 5). The court asked if Mr. Riggs
understood that “the conflict that Mr. Threatt was referring to had to do with your conversation
with the marshal about Mr. Johnson . . . [h]ad nothing to do about his continued representation
with you at trial or at your plea.” (Id. at 6). Mr. Riggs stated that he understood the difference.
(Id.).
The court pointed out that Mr. Riggs’ change of plea hearing took place after the meeting
with the United States marshal about Mr. Johnson, but Mr. Riggs had not mentioned the conflict
at that time, despite testifying under oath that he was satisfied with Mr. Threatt’s representation.
(Cr. Doc. 114 at 6–8). And the court asked Mr. Riggs about his testimony that he had not been
threatened into entering the plea agreement. (Id. at 11). Mr. Riggs stated that he had lied to
protect his family. (Id.).
The Government called Mr. Threatt to testify at the hearing on Mr. Riggs’ motion to
withdraw. (Cr. Doc. 114 at 37). Mr. Threatt testified that, at Mr. Riggs’ meeting with the United
States deputy marshal on September 5, he had told Mr. Riggs that the interview should take place
“outside [his] presence because [he] believed that [Mr. Riggs] was going to give information
about a client of [his] at the time.” (Id. at 39–40). He testified that Mr. Riggs never told him he
was entering the plea agreement because of fear for himself and his family. (Id. at 43). And he
testified that he and Mr. Riggs had, on at least three occasions, watched a videotaped confession
in which Mr. Riggs admitted to sending the emails and text messages, including the obscene
photographs. (Id. at 45). Mr. Threatt testified that Mr. Riggs had never refuted that confession.
(Id.).

6

After the Government and defense counsel questioned Mr. Threatt, the court permitted
Mr. Riggs to question Mr. Threatt directly. (Cr. Doc. 114 at 55–84). In response to Mr. Riggs’
questions, Mr. Threatt testified that he “spoke to at least eight of [ten people who Mr. Riggs
wanted to subpoena] on the phone about the matters that [Mr. Riggs] had asked [him] about.”
(Id. at 55). He also testified that he and Mr. Riggs had several conversations about an alibi
defense, and Mr. Riggs had filed a pro se notice of alibi defense. (Id. at 74). Mr. Threatt
testified that he told Mr. Riggs he would not file the notice because “alibi means that an
individual is asserting that they were at a place other than the place that a crime was committed.
When an individual—when the criminal allegation is that you were sending text messages from a
phone, it does not matter whether you were doing that in this building or across the street. That’s
the conversation we had.” (Id. at 74–75). In addition, Mr. Threatt testified that he felt an alibi
defense would be inconsistent with Mr. Riggs’ confession. (Id. at 75).
The court found that Mr. Riggs’ plea was knowing and voluntary, and that sufficient
evidence existed to justify a finding of guilt. (Cr. Doc. 114 at 88). The court also found that
Mr. Threatt and his predecessor attorneys had provided Mr. Riggs with effective assistance. (Id.
at 88–90). As a result, the court denied the motion to withdraw the guilty plea. (Id. at 90).
The court sentenced Riggs to two concurrent 120-month sentences. (Cr. Doc. 89).
Mr. Riggs appealed. On appeal, Mr. Bloomston filed a brief under Anders v. California, 386
U.S. 738 (1967), stating that he believed no issues of arguable merit existed. (Doc. 13-2 at 55–
72). In response, Mr. Riggs filed a pro se brief, contending, among other things, that all of his
attorneys had provided ineffective assistance, that his guilty plea was invalid because Mr. Threatt
and other federal public defenders coerced him to enter that plea, and that he was actually
innocent. (Doc. 13-2 at 75–93). Specifically, Mr. Riggs argued that Mr. Threatt “knowingly and

7

willingly hamper[ed] the prosecution of the murder of one DeAndre Washington . . . reported by
the accused.” (Id. at 85). He also argued that the plea agreement was void because he entered it
based on Mr. Johnson’s threats against his family and his erroneous impression that it was the
only way to protect them. (Id. at 89–91).
After an independent review of the record, the Eleventh Circuit affirmed Mr. Riggs’
convictions and sentences. United States v. Riggs, 589 F. App’x 523 (11th Cir. 2015).
II.

DISCUSSION

Mr. Riggs primarily raises three issues in his § 2255 motion: (1) Mr. Riggs’ guilty plea
was not knowing and voluntary; (2) trial counsel was ineffective because of his conflict of
interest; and (3) he is actually innocent. 2 (Doc. 63).
1. Invalid Guilty Plea
Mr. Riggs’ first claim is that his guilty plea was involuntary. He asserts that after he gave
a statement against Mr. Johnson and before he entered the plea agreement, he told Mr. Threatt
that Mr. Johnson had threatened Mr. Riggs’ wife and children. (Doc. 63 at 4). According to
Mr. Riggs, Mr. Threatt told him that the United States Marshals Service would protect
Mr. Riggs’ family only if he pled guilty. (Id.). Mr. Threatt allegedly also told Mr. Riggs that, if

2

Mr. Riggs states at various points throughout his § 2255 motion and in his briefs that
counsel’s alleged conflict of interest resulted in the denial of counsel at each of the conflict-ofinterest hearings. (Doc. 63 at 8–9, 14, 17–19; Doc. 75 at 2–5). To the extent that Mr. Riggs
attempts to raise a denial-of-counsel claim, the court denies it because the record confirms that
Mr. Riggs was represented by counsel at every stage of his criminal proceedings.
Mr. Riggs also alleges that another federal public defender, Sabra Barnett, who was not
representing him, shared information about him with one of her clients. (Doc. 63 at 18–19; 75 at
7). But an attorney who was not representing him cannot have provided him with ineffective
assistance. To the extent that Mr. Riggs attempts to assert a claim of ineffective assistance about
Ms. Barnett’s actions, the court denies that claim as well.
8

he pled guilty, he would receive a sentence of time served for substantially assisting the
Government. (Id. at 14–15).
Of relevance to Mr. Riggs’ § 2255 motion, a movant seeking to challenge his sentence
faces two procedural hurdles to raising a claim. First is the procedural bar, which provides that
“once a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255.” United States v. Nyhuis, 211 F.3d 1340, 1343
(11th Cir. 2000) (quotation marks omitted). The other is the doctrine of procedural default,
which precludes any claim that the defendant could have, but did not, raise on direct appeal.
Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004).
The procedural bar and procedural default rules—the first prohibiting claims that the
movant raised on direct appeal and the second prohibiting claims that the movant did not raise on
direct appeal—may seem to place the movant in an impossible position. The movant may
navigate the narrow passage between those two rules by raising in his § 2255 motion a claim that
he could not have raised in his direct appeal—for example, a claim of ineffective assistance or a
claim based on newly discovered evidence. See, e.g., Bousley v. United States, 523 U.S. 614,
621–22 (1998) (noting the “exception to the procedural default rule for claims that could not be
presented [on direct appeal] without further factual development”); Brown v. United States, 688
F. App’x 644 (11th Cir. 2017) (“One example of a claim typically requiring further factual
development through a § 2255 proceeding is a claim based on ineffective assistance of
counsel.”).
But Mr. Riggs’ claim challenging the validity of his guilty plea does not rest on the
ineffectiveness of his attorney or on evidence that he discovered after his appeal. Instead,
Mr. Riggs’ claim is simply that his guilty plea was invalid because (1) he entered the guilty plea

9

based on his belief that pleading guilty was the only method to protect his family from
Mr. Johnson, who had threatened them; and (2) Mr. Threatt told him that was the only way to get
a lower sentence for substantially assisting the Government. (Doc. 63 at 4, 14–15).
The court finds that his claim is procedurally barred in part and procedurally defaulted in
part. As to the part of his claim relating to Mr. Johnson’s alleged threats against Mr. Riggs’
family, the claim is procedurally barred. In his pro se brief on appeal to the Eleventh Circuit,
Mr. Riggs argued that his guilty plea was invalid because he entered the plea agreement under
the erroneous impression that it was the only way to protect his family. (Doc. 13-2 at 90–91).
The Eleventh Circuit, in affirming his convictions, rejected that argument. Riggs, 589 F. App’x
523.
The Eleventh Circuit has held that a pro se brief filed in response to counsel’s Anders
brief triggers the procedural bar because “an issue presented is presented, even if raised only in
the pro se response to an Anders brief.” Stoufflet v. United States, 757 F.3d 1236, 1242 (11th
Cir. 2014) (quotation marks, alteration, and citation omitted). Because Mr. Riggs challenged the
validity of his guilty plea based on the alleged threats by Mr. Johnson against his family, and the
Eleventh Circuit rejected that challenge, the procedural bar prevents this court from considering
that claim on collateral review.
Less clear is whether the portion of Mr. Riggs’ claim relying on Mr. Threatt’s alleged
promise of a sentence reduction is also procedurally barred. Mr. Riggs’ pro se brief on appeal
did not mention any promise of a sentence reduction, even though Mr. Riggs had already raised
that alleged promise in the district court as a ground to withdraw his guilty plea. (See Cr. Doc.
57 at 1–2; Doc. 13-2 at 90–91). But the court need not decide whether that portion of the claim
is procedurally barred because, even if it is not, Mr. Riggs procedurally defaulted it.

10

Mr. Riggs’ motion to withdraw his plea alleged that Mr. Threatt had induced him to plead
guilty by telling him that such a plea was the only way to get a reduction in his sentence. (Cr.
Doc. 57 at 1–2). He could have raised that argument in his pro se brief on appeal—he had
already raised it in the district court by that point—but his pro se brief on appeal challenged his
guilty plea only on the basis that he entered the plea to protect his family. (See Doc. 13-2 at 90–
91). And his § 2255 motion does not allege any newly discovered evidence supporting the
claim; it does not bring to light any information that was not already in the record of the trial
proceedings. As a result, he procedurally defaulted his challenge to the guilty plea based on
Mr. Threatt’s alleged promise of a sentence reduction.
Two exceptions to the procedural default rule exist. Under the first exception, “a
defendant must show cause for not raising the claim of error on direct appeal and actual
prejudice from the alleged error.” Lynn, 365 F.3d at 1234. Mr. Riggs has not alleged any facts
that could support a showing of cause or prejudice. Under the second exception, a court may
excuse the movant’s procedural default “if a constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Id. (quotation marks omitted). Mr. Riggs relies on
the second exception by arguing that he is innocent of his crimes of conviction. (Doc. 63 at 5).
To establish actual innocence, a § 2255 movant 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) (quotation marks omitted). Mr. Riggs makes
two arguments in support of his allegation that he is actually innocent. First, he alleges that,
unbeknownst to him, his housemate at the time of the crimes was a confidential informant named
Joy Brown, using the alias Laney Jones, who was working with police in exchange for a lighter
sentence. (Doc. 63 at 22–23). Mr. Riggs contends that she used a SIM card from one of his

11

broken cellphones to send the texts and explicit photographs to the other undercover agent who
was posing as a young girl, all in a scheme to frame him and stop his work as an informant
exposing the involvement of public officials in the drug trade. (Id. at 4–5, 22). He states that,
while he was in jail, Ms. Brown admitted to him that she sent the nude pictures of him from her
cellphone. (Id. at 22). Second, he alleges that ten alibi witnesses would have proved that he was
not “even present when the alleged conduct occurred.” (Id. at 12, 23).
Mr. Riggs has not established that, “more likely than not . . . , no reasonable juror would
have convicted him.” Bousley, 523 U.S. at 623. Law enforcement officers arrested Mr. Riggs on
the date and at the time and place that he had arranged to meet with someone he believed was 14
years old, after he had sent numerous explicit text messages and emails, including nude
photographs of himself, to that person. (See Doc. 55 at 4–5). Furthermore, at the hearing on
Mr. Riggs’ motion to withdraw his guilty plea, Mr. Threatt testified that Mr. Riggs had made a
videotaped confession to the police in which he admitted to sending the emails, text messages,
and nude photographs. 3 (Cr. Doc. 114 at 45). Although the Government did not submit that
confession during Mr. Riggs’ criminal proceedings, it would be entitled to do so now. See
Bousley, 523 U.S. at 624 (“[T]he Government is not limited to the existing record to rebut any
showing [of actual innocence] that petitioner might make. Rather, on remand, the Government
should be permitted to present any admissible evidence of petitioner’s guilt even if that evidence
was not presented during petitioner’s plea colloquy . . . .”).
In contrast to that evidence, Mr. Riggs presents his own allegation that Ms. Brown was an
informant who framed him. Because he does not include any affidavit from Ms. Brown or any

3

In his reply brief, Mr. Riggs mentions in passing that Mr. Threatt “presented an edited
version of the videotaped interview,” but he does not explain that statement any further. (See
Doc. 75 at 7).
12

other witness, the court can only assume that he is proffering his own testimony in support of
that allegation. Even if Mr. Riggs had taken the stand at trial and testified about the alleged
conspiracy to frame him, the court cannot find it more like than not that his testimony would
have overcome the strong evidence against him such that “no reasonable juror would have
convicted him.” Bousley, 523 U.S. at 623.
As for Mr. Riggs’ assertion of an alibi defense, the court notes that an alibi is “[a] defense
based on the physical impossibility of a defendant’s guilt by placing the defendant in a location
other than the scene of the crime at the relevant time.” Alibi, Black’s Law Dictionary (10th ed.
2014). Mr. Riggs does not set out how his ten alibi witnesses would have proved the “physical
impossibility” of him using his phone to send text messages, emails, and photographs to the
undercover agent. (See generally Doc. 63; Doc. 75 at 6). The court notes that, at the hearing on
Mr. Riggs’ motion to withdraw his plea, Mr. Threatt testified that he spoke to “at least” eight of
the witnesses Mr. Riggs said would provide him with an alibi, but he had declined to file an alibi
because “when the criminal allegation is that you were sending text messages from a phone, it
does not matter whether you were doing that in this building or across the street.” (Cr. Doc. 114
at 55, 74–75). And, as discussed above, police arrested Mr. Riggs at the appointed time of an
arranged encounter with a girl he believed to be underage, after exchanging multiple text
messages and emails from his phone. Again, the court cannot find that, more likely than not, “no
reasonable juror would have convicted” Mr. Riggs if he had presented his alibi defense. See
Bousley, 523 U.S. at 623.
Mr. Riggs’ claim that his guilty plea is invalid because he entered it under duress is
procedurally barred in part and procedurally defaulted in part. And Mr. Riggs cannot excuse the

13

procedural default because he cannot establish his actual innocence. As a result, the court WILL
DENY this claim.
2. Ineffective Assistance Based on Conflict of Interest
Mr. Riggs’ second claim is that Mr. Threatt provided ineffective assistance because he
was operating under a conflict of interest by representing both Mr. Johnson—who allegedly
confessed to Mr. Riggs that he had committed an unsolved murder—and Mr. Riggs. (Doc. 63 at
7, 12). Mr. Riggs contends that, to protect Mr. Johnson, Mr. Threatt had to “silence” Mr. Riggs.
(Id.). This claim fails because, even if Mr. Threatt had a conflict of interest, Mr. Riggs waived
the conflict on the record.
In a typical claim of ineffective assistance of counsel, the movant must demonstrate that
(1) his counsel’s performance fell below an objective standard of reasonableness; and (2) he
suffered prejudice because of that deficient performance. Strickland v. Washington, 466 U.S.
668, 684–91 (1984). But the standard is different when a movant alleges ineffective assistance
based on a conflict of interest. A movant who can “show[ ] that a conflict of interest actually
affected the adequacy of his representation need not demonstrate prejudice in order to obtain
relief.” Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980). To obtain the presumption of
prejudice in this type of case, the movant must “demonstrate[ ] that counsel actively represented
conflicting interests and that an actual conflict of interest adversely affected his lawyer’s
performance.” Strickland, 466 U.S. at 692. But a defendant can waive the right to conflict-free
counsel. United States v. Garcia, 517 F.2d 272, 276–78 (5th Cir. 1975), 4 abrogated on other
grounds by Flanagan v. United States, 465 U.S. 259 (1984).

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down before October 1, 1981.
14

During Mr. Riggs’ criminal proceedings, a magistrate judge found that Mr. Threatt did
not have a conflict based on his concurrent representation of Mr. Riggs and Mr. Johnson, and the
court found that Mr. Threatt had provided effective assistance despite Mr. Riggs’ charge of a
conflict. (Cr. Doc. Minute Entry, Sept. 5, 2013; Cr. Doc. 114 at 88–90). Mr. Riggs did not
challenge those findings in his direct appeal. (See Doc. 13-2 at 55–72).
Nevertheless, because Mr. Riggs’ current claim is one of ineffective assistance based on
the alleged conflict, the court will not deny the claim as procedurally defaulted. See Massaro v.
United States, 538 U.S. 500, 509 (2003) (“We . . . hold that failure to raise an ineffectiveassistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later,
appropriate proceeding under § 2255.”). But the court also will not reevaluate the underlying
finding that Mr. Threatt had no conflict, because Mr. Riggs had the opportunity to challenge that
finding and failed to do so.
In light of the magistrate judge’s and the court’s earlier findings that Mr. Threatt had no
conflict, Mr. Riggs cannot now establish ineffective assistance based on a conflict of interest.
See Cuyler, 446 U.S. at 349–50 (requiring the movant to show both an actual conflict of interest
and that the conflict affected the adequacy of his representation).
And even if the magistrate judge had not made a finding that Mr. Threatt had no conflict,
or if that finding were somehow wrong, Mr. Riggs would not be able to demonstrate that
Mr. Threatt’s representation of him violated the Sixth Amendment, because Mr. Riggs waived
the right to conflict-free counsel. To establish waiver, the record must demonstrate “that the
defendant was aware of the conflict of interest; realized the conflict could affect the defense; and
knew of the right to obtain other counsel.” United States v. Rodriguez, 982 F.2d 474 (11th Cir.
1993).

15

The record demonstrates each of those requirements. Mr. Riggs was clearly aware of the
alleged conflict of interest, aware that a conflict could affect his defense, and aware of the right
to obtain other counsel, because he filed not one, but two pro se motions based on the alleged
conflict, expressly seeking a new attorney in one of those motions. (See Cr. Doc. 51; Cr. Doc. 57
at6). Yet at the hearing on his first motion about the conflict, he told the magistrate judge that,
after he had placed his motion in the mail, he had discussed the alleged conflict with Mr. Threatt
and they had “determined this was not going to be an issue.” (Cr. Doc. 109 at 7). Finally, the
court notes that, at his change of plea hearing, which took place after the conflict hearing,
Mr. Riggs responded “yes” when the court asked if he was satisfied with Mr. Threatt’s
representation of him. (Cr. Doc. 62 at 24).
The court finds that, even assuming that Mr. Threatt had an actual conflict of interest—an
assumption that the court doubts—Mr. Riggs validly waived that conflict. And to the extent that
Mr. Riggs asserts that his other attorneys had conflicts of interest, he has not explained what the
conflict of interest was or how it adversely affected their representation of him. See Cuyler, 446
U.S. 335, 349–50 (requiring both an actual conflict of interest and that the conflict affected the
adequacy of counsel’s representation). As a result, he cannot establish that he received
ineffective assistance of counsel. See McCorkle v. United States, 325 F. App’x 804, 807–08
(11th Cir. 2009) (concluding that the movant did not receive ineffective assistance of counsel
because he waived his trial attorney’s conflict of interest). As a result, the court WILL DENY
this claim.
3. Actual Innocence
Mr. Riggs contends that a confidential informant, Joy Brown, sent the explicit text and
email messages that formed the basis for his convictions. (Doc. 63 at 5). As the court discussed

16

above, Mr. Riggs cannot establish that he is actually innocent. But even if he could, a
freestanding claim of actual innocence is not cognizable in a § 2255 motion. Jordan v. Sec’y
Dep't of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007) (“[O]ur precedent forbids granting habeas
relief based upon a claim of actual innocence, anyway, at least in non-capital cases.”); see also
Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly
discovered evidence have never been held to state a ground for federal habeas relief absent an
independent constitutional violation . . . .”). As a result, the court WILL DENY this claim.
4. Certificate of Appealability
Rule 11 of the Rules Governing § 2255 Cases requires the court to “issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),
Rules Governing § 2255 Cases. The court may issue a certificate of appealability “only if the
applicant has a made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make such a showing, a “petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong,” or
that “the issues presented were adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 336, 338 (2003) (quotation marks omitted). This court finds that
Mr. Riggs’ claims do not satisfy either standard. The court WILL DENY a certificate of
appealability.
III.

CONCLUSION

The court WILL DENY Mr. Riggs’ § 2255 motion. The court WILL DENY AS MOOT
Mr. Riggs’ motion for appointment of counsel. The court WILL DENY Mr. Riggs a certificate
of appealability.
The court will enter a separate order consistent with this opinion.

17

DONE and ORDERED this 2nd day of May, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

18