Denton v. United States of America

Filing 38

MEMORANDUM OPINION Signed by Judge Sharon Lovelace Blackburn on 6/11/18. (SAC )

FILED
2018 Jun-11 PM 04:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
RICKY WALTER DENTON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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CASE NO. 3:14-CV-8052-SLB
Crim. Case No. 3:11-CR-54-SLB-JEO

MEMORANDUM OPINION
This case is presently pending before the court on petitioner Ricky Walter Denton’s
Renewed and Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255.
(Doc. 30.)1
For the reasons set forth herein, the court finds that Denton’s claim of ineffective
assistance of appellate counsel is without arguable merit and his remaining claims are
procedurally barred. Therefore, the court will summarily dismiss his ineffective assistance
claim and will order Denton to show cause, in writing, why his remaining claims should not
be dismissed summarily.

See 28 U.S.C. § 2255(b);2 Pava v. United States, No.

1

Citations to documents in the court’s record in petitioner’s Motion to Vacate, Case
No. 3:14-CV-8052-SLB, appear as “(Doc. __).” Citations to documents in the court’s record
in the criminal proceedings against petitioner, Case No. 3:11-CR-0054-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.
2

Section 2255(b) states, in part, “Unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief, the court shall cause notice
thereof to be served upon the United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with respect thereto.”
28 U.S.C. § 2255(b).

8:07-CR-289-T-24 AEP, 2011 WL 1337510, *1 (M.D. Fla. Apr. 7, 2011)(“The Court will
not cause notice [of petitioner’s § 2255 Motion to Vacate] to be served upon the United
States Attorney and shall proceed to address the matter, because a review of this motion and
the record in this case conclusively shows that Petitioner is not entitled to relief.”).
A. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
The Supreme Court has held “that an ineffective-assistance-of-counsel claim may be
brought in a collateral proceeding under § 2255, whether or not the petitioner could have
raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
Therefore, unlike his remaining claims, Denton’s claim of ineffective assistance of appellate
counsel is not procedurally barred. However, the court’s review of this claim shows
conclusively that it is without arguable merit and due to be summarily dismissed.
Denton argues that his appellate counsel was ineffective for failing to argue
effectively his claim of error based on this court’s denial of his request for access to legal
materials in preparation for his trial. (Doc. 30-1 at 61.) Specifically, he contends, “During
[oral] argument the panel [of the Eleventh Circuit] asked [Denton’s appellate counsel,]
‘[H]ow did the denial of law books prejudice Mr. Denton[?]’” and his counsel did not

Rule 4(b) of the Rules Governing Section 2255 Proceedings requires, “The judge who
receives the motion [to vacate to] promptly examine it,” and “If it appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving
party.” Only if the motion is not dismissed will the court order the United States to file an
answer or otherwise respond to the motion to vacate. Id.
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respond. (Id.) He claims that counsel should have argued that “the denial of access to law
books denied [him] his right to represent himself fairly.” (Id.)
With regard to a claim of ineffective assistance of appellate counsel, the Eleventh
Circuit has held:
Strickland [v. Washington, 466 U.S. 668 (1984),] governs a claim of
ineffective assistance of appellate counsel. Dell v. United States, 710 F.3d
1267, 1273 (11th Cir. 2013). Under Strickland, a petitioner must show (1) his
attorney's performance was deficient, and (2) the deficient performance
prejudiced the petitioner's defense. 466 U.S. at 687. When considering
deficient performance, a court must presume counsel’s performance was
“within the wide range of reasonable professional assistance.” Id. at 689.
Appellate counsel has no duty to raise every non-frivolous issue and may
reasonably weed out weaker (albeit meritorious) arguments. See Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). “Generally, only when
ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.” Smith v.
Robbins, 528 U.S. 259, 288 (2000)(quoting Gray v. Greer, 800 F.2d 644, 646
(7th Cir. 1986)); see also Burger v. Kemp, 483 U.S. 776, 784 (1987)(finding
no ineffective assistance of counsel when the failure to raise a particular issue
had “a sound strategic basis”). A petitioner satisfies the prejudice prong upon
showing that “there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016)(emphasis added; parallel
Supreme Court Reporter citations omitted). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome. This inquiry requires [the court] to
consider the merits of the omitted claim, and [it] will find counsel’s performance prejudicial
if the neglected claim would have a reasonable probability of success on appeal.” Brooks
v. Comm'r, Alabama Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013)(internal
quotations and citations omitted). Although the Strickland test has two distinct parts, “there

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is no reason for a court deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.” Id.
The court finds that Denton has not alleged, and cannot show, prejudice resulting
from appellate counsel’s alleged failure to argue effectively that the denial of law books
prejudiced Denton’s defense. The law is well established that “a criminal defendant who
seeks to proceed pro se has no right to access a law library to aid him in his own defense at
trial where he has already been provided the option of legal counsel.” Smith v. Hutchins, 426
Fed. Appx. 785, 789 (11th Cir. 2011)(citing Edwards v. United States, 795 F.2d 958, 961
nn.1 and 3 (11th Cir.1986))(footnote omitted);3 see Edwards, 795 F.2d at 961 n.3 (citing
Bounds v. Smith, 430 U.S. 817, 828 (1977) and Hooks v. Wainwright, 775 F.2d 1433, 1435
(11th Cir. 1985)), cited in Daker v. Warren, 660 Fed. Appx. 737, 740 (11th Cir. 2016), cert.
denied, 138 S. Ct. 94 and 138 S. Ct. 98 (2017); United States v. Stringer, 546 Fed. Appx.
896, 897 (11th Cir. 2013); United States v. Denton, 535 Fed. Appx. 832, 835 (11th Cir.
2013). Indeed, in Denton’s direct appeal, the Eleventh Circuit held:

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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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Under the Sixth Amendment, as interpreted in Faretta, criminal
defendants have a right to waive the assistance of counsel and represent
themselves when they voluntarily elect to do so with knowledge of the
disadvantages of self-representation. Faretta, 422 U.S. at 807, 835, 95 S. Ct.
at 2527, 2541. Nothing in Faretta or the Sixth Amendment, however,
expressly establishes that a defendant who has knowingly elected to proceed
pro se has a right of access to a law library or legal materials. See Kane v.
Garcia Espitia, 546 U.S. 9, 10, 126 S. Ct. 407, 408, 163 L. Ed.2d 10 (2005)
(noting, in the context of habeas review under 28 U.S.C. § 2254, that “Faretta
says nothing about any specific legal aid that the State owes a pro se criminal
defendant” and so does not “clearly establish” a pro se defendant's right to
access a law library). Faretta itself recognized that “[w]hen an accused
manages his own defense, he relinquishes, as a purely factual matter, many of
the traditional benefits associated with the right to counsel.” 422 U.S. at 835,
95 S. Ct. at 2541.
We have held that a pro se criminal defendant has no constitutional
right of access to a law library or legal materials where counsel has been
offered. Edwards v. United States, 795 F.2d 958, 961 nn.1 & 3 (11th Cir.
1986)(rejecting a collateral challenge to a criminal conviction based on the
denial of library access while the petitioner proceeded pro se at trial, and
concluding that “[w]hen counsel is offered, the alternative of a library is not
mandatory”). Although Denton takes issue with the soundness and adequacy
of our decision in Edwards, we are bound by that decision under the prior
panel precedent rule unless and until it is overruled by the Supreme Court or
this Court sitting en banc. Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076
(11th Cir. 2000); see also Smith v. GTE Corp., 236 F.3d 1292, 1302–03 (11th
Cir. 2001)(rejecting a “wrong result” or “overlooked reason” exception to the
prior panel precedent rule); Wascura v. Carver, 169 F.3d 683, 687 (11th Cir.
1999)(responding to the argument that the reasoning of a prior panel decision
was “unclear and inadequate to support its holding” by stating that “[w]e have
no occasion to pass on that criticism, because we are bound by the [prior
panel] decision regardless of whether we agree with it”).
Denton, 535 Fed. Appx. at 835 (emphasis added).
In this case, given the Eleventh Circuit’s decision on appeal, Denton cannot show that,
but for the alleged deficient performance of his appellate counsel at oral argument – her
failure to argue that denying Denton access to a law library prejudiced his right to represent

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himself, “there is a reasonable probability that . . . the result of [his appeal] would have been
different.” Strickland, 466 U.S. at 694. Even if appellate counsel had argued to the Circuit
Court that denial of access to a law library had prejudiced Denton’s ability to represent
himself at trial, this “prejudice” was the result of Denton’s choice to eschew appointed trial
counsel and represent himself – it was not the result of the denial of his right to represent
himself. Therefore, the court finds that Denton’s claim of ineffective assistance of appellate
counsel is due to be dismissed with prejudice.
B. PROCEDURAL DEFAULT
With the exception of his claim that appellate counsel was ineffective, the court finds
that the grounds for relief asserted in Denton’s Amended and Renewed Petition4 are

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In his Memorandum of Facts and Law in Support of Renewed Motion for Relief
Pursuant to § 2255, (doc. 30-1), Denton alleges the following grounds for relief:
[Issue 1:] Did the prosecutor in this case exceed her authority when she
presented the evidence to a second grand-jury without seeking permission
from Washington after [the] first [grand jury] declined to indict Denton[?]
[Issue 2:] Whether the indictment was obtained by fraud on the Court when
the prosecutor presented what she knew to be false material evidence to the
grand-jury panel.
[Issue 3:] Whether Mr. Denton was denied a fundamentally fair trial, due
process, the right to self representation, and equal protection of the law when
the Court intentionally withheld readily available law books under the flag of
expense and imprisonment.
[Issue 4:] Whether a procedural default is applicable to this case when Denton
was forced to accept an attorney on appeal and disallowed to submit any
pro-se supplemental argument or control the content of his appeal.
[Issue 5:] Whether Denton’s right to self representation was [undermined] by
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his appointed standby counsel when [(a.)] he violated Denton's confidence by
informing government agents of [Denton’s] intentions for them on the stand
and [(b.) he] cancel[ed] Denton's intended witness subpoenas without
informing Denton.
[Issue 6:] Whether Denton’s Constitutional right to due process of law and his
right to self representation [were] denied by government agents interfering
with his right to call witnesses on his behalf.
[Issue 7:] Whether Denton was denied due process of law and a
fundamentally fair trial when the AUSA committed fraud on the Court to
obtain favorable rulings.
[Issue 8:] Whether Denton was denied a fair trial when the government failed
to correct what was known to be false [and] misleading testimony.
[Issue 9:] Whether Denton was denied due process and a fair trial when the
government suppressed exculpatory evidence.
[Issue 10:] Whether Denton was denied due process of law [in light] of the
numerous erroneous evidentiary rulings by the trial Court.
[Issue 11:] Whether the cumulative effect of the Constitutional violations in
this case mandates [giving] Denton a new trial.
[Issue 12:] Whether the Court had jurisdiction to impose the sentence on
Count II of the indictment [(]the § 924(c) Count [)] [in light] of the fact Count
I categorically fails as a violent crime, [and] thus fails to support the § 924(c)
Count.
[Issue 13:] Whether the Court denied Denton due process of law,
notwithstanding Issue (12) herein, when the Court failed to consider the
mandatory consecutive sentence of the § 924(c) Count, while imposing the
sentence on Count I, under the facts to be considered under 18 U.S.C. §
3353(a).
[Issue 14:] Whether the Court made a clear error imposing the federal
sentence to be consecutive to a state sentence which was relevant conduct to
the federal charges.
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procedurally barred because either (1) the Eleventh Circuit decided the issues in Denton’s
prior appeals, see United States v. Denton, 535 Fed. Appx 832 (11th Cir. 2013)(the appeal
of his conviction and sentence) and United States v. Denton, 697 Fed. Appx. 963 (11th Cir.
2017)(the appeal of the court’s denial of his motion for new trial), or (2) Denton could have,
but did not, raise the issues on direct appeal. “It is long settled that a prisoner is procedurally
barred from raising arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he
already raised and that [the Eleventh Circuit Court of Appeals] rejected in his direct appeal.”
Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014)(citations omitted). Such a
rejected claim does not merit rehearing, either on the same or a different, but previously
available, legal theory. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)(citing
Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir. 1989)). Also, challenges that were available
but not raised on direct appeal are procedurally defaulted: “Under the procedural default
rule, ‘a defendant generally must advance an available challenge to a criminal conviction or
sentence on direct appeal or else the defendant is barred from presenting that claim in a §
2255 proceeding.’” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011)(quoting
Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)). “Challenges count as
available on direct appeal when their merits ‘can be reviewed without further factual
development.’” Linton v. United States, 712 Fed. Appx. 920, 923 (11th Cir. 2017)(quoting
Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994)).

(Doc. 30-1 at 18-19.)
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Denton argues, “[T]here can be no claim [he] procedurally defaulted [the claims
raised herein] or that [his] claims have been foreclosed because [he] was denied a meaningful
appeal.” (Doc. 30-1 at 60.) He contends that he has a constitutional “right to argue his own
appeal” and “to present pro se briefs and motions on appeal.” (Id. at 64-65 [citing, inter alia,
Myers v. Johnson, 76 F.3d 1330 (5th Cir. 1996); Myers v. Collins, 8 F.3d 249 (5th Cir.
1993), abrogated by Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528
U.S. 152 (2000); and Chamberlain v. Ericksen, 744 F.2d 628 (8th Cir. 1984), abrogated by
Martinez, 528 U.S. 152].) According to Denton, the Eleventh Circuit denied him meaningful
appeals based on its denials of his requests to proceed pro se and its rejection of his pro se
briefs.
Therefore, any appeal taken, ruled on or decided in or under Denton's name
or in regard to this case at bar should and must have no prejudice toward
Denton[. I]n fact, [he] should have his [appellate] rights restored and allowed
to appeal anew[,] allowing [him] to preserve actual control over the case and
argument he chooses to present to the Appeals Court. Furthermore, [he should
be] allowed to determine the content of his appellate brief and supplement
with pro-se pleadings as a matter of his Constitutional right. [Furthermore],
any argument in regard to Denton's motion for a new trial touching on these
issues does not procedurally bar or default them because [he] took that path as
a result of being shut [out] of access to the court. Thus, his instant petition
must be reviewed under the standards set for a petition of habeas corpus and
the rules applicable thereto without any regard to the appeal. Furthermore,
Denton [should be] allowed to appeal anew.
(Id. at 66.)
The court disagrees. The cases cited by Denton were abrogated by the Supreme
Court, which, in 2000, held that a criminal defendant has no constitutional right to self-

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representation on appeal. Martinez, 528 U.S. at 162-63. The Eleventh Circuit recently
stated:
The Supreme Court has held that the Sixth Amendment “necessarily
implies the right of self-representation” at a criminal trial. Faretta [v.
California], 422 U.S. 806, 832, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). But
the Supreme Court has found that no such right exists on appeal. Martinez,
528 U.S. at 163, 120 S. Ct. 684. As the Court has explained, a criminal
defendant is differently situated at trial than he is on appeal. Id. at 163, 120
S. Ct. 684. At trial, the prosecution brings the case against a defendant who
is presumed innocent. Id. at 162, 120 S. Ct. 684. On appeal, however, the
convicted defendant, who is no longer presumed innocent, prosecutes the
appeal. Id. So unlike a criminal trial, state “appellate proceedings are simply
not a case of haling a person into its criminal courts.” Id. at 163, 120 S. Ct.
684 (citation, internal quotation marks, and alteration omitted). As a result,
the balance between the court’s “interest in ensuring the integrity and
efficiency of the trial” and “the defendant’s interest in acting as his own
lawyer” favors the court’s interest during an appeal, and a court has the
discretion to allow a defendant to proceed pro se on appeal. Id. at 162-63, 120
S. Ct. 684.
Marquardt v. Sec'y, Fla. Dep't of Corr., 720 Fed. Appx. 550, 554-55 (11th Cir.
2017)(emphasis added). Also, the Supreme Court has held that appointed appellate counsel
has no “duty to raise every ‘colorable’ claim suggested by a client.” Jones v. Barnes, 463
U.S. 745, 754 (1983). In Jones, the Court stated:
There is, of course, no constitutional right to an appeal, but in Griffin v.
Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L. Ed. 891 (1955), and
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963),
the Court held that if an appeal is open to those who can pay for it, an appeal
must be provided for an indigent. It is also recognized that the accused has the
ultimate authority to make certain fundamental decisions regarding the case,
as to whether to plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal, see Wainwright v. Sykes, 433 U.S. 72, 93 n.1, 97 S. Ct. 2497,
2509 n.1, 53 L. Ed. 2d 594 (1977)(BURGER, C.J., concurring); ABA
Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980). In addition, we
have held that, with some limitations, a defendant may elect to act as his or her
own advocate, Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed.
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2d 562 (1975). [No] other decision of this Court suggests, however, that the
indigent defendant has a constitutional right to compel appointed counsel to
press nonfrivolous points requested by the client, if counsel, as a matter of
professional judgment, decides not to present those points.
This Court, in holding that a State must provide counsel for an indigent
appellant on his first appeal as of right, recognized the superior ability of
trained counsel in the “examination into the record, research of the law, and
marshalling of arguments on [the appellant’s] behalf,” Douglas v. California,
372 U.S., at 358, 83 S. Ct., at 817. Yet by promulgating a per se rule that the
client, not the professional advocate, must be allowed to decide what issues
are to be pressed, the Court of Appeals seriously undermines the ability of
counsel to present the client’s case in accord with counsel’s professional
evaluation.
Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a few key issues. Justice Jackson,
after observing appellate advocates for many years, stated:
“One of the first tests of a discriminating advocate is to select the
question, or questions, that he will present orally. Legal contentions,
like the currency, depreciate through over-issue. The mind of an
appellate judge is habitually receptive to the suggestion that a lower
court committed an error. But receptiveness declines as the number of
assigned errors increases. Multiplicity hints at lack of confidence in
any one . . . . [E]xperience on the bench convinces me that multiplying
assignments of error will dilute and weaken a good case and will not
save a bad one.” Jackson, Advocacy Before the Supreme Court, 25
Temple L.Q. 115, 119 (1951).
Justice Jackson's observation echoes the advice of countless advocates before
him and since. An authoritative work on appellate practice observes:
“Most cases present only one, two, or three significant questions . . . .
Usually, . . . if you cannot win on a few major points, the others are not
likely to help, and to attempt to deal with a great many in the limited
number of pages allowed for briefs will mean that none may receive
adequate attention. The effect of adding weak arguments will be to
dilute the force of the stronger ones.” R. Stern, Appellate Practice in
the United States 266 (1981).

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There can hardly be any question about the importance of having the
appellate advocate examine the record with a view to selecting the most
promising issues for review. . . . A brief that raises every colorable issue runs
the risk of burying good arguments – those that, in the words of the great
advocate John W. Davis, “go for the jugular,” Davis, The Argument of an
Appeal, 26 A.B.A.J. 895, 897 (1940) – in a verbal mound made up of strong
and weak contentions. See generally, e.g., Godbold, Twenty Pages and
Twenty Minutes – Effective Advocacy on Appeal, 30 SW.L.J. 801 (1976).
. . . For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every “colorable” claim suggested
by a client would disserve the very goal of vigorous and effective advocacy .
. . . Nothing in the Constitution or our interpretation of that document requires
such a standard.
Jones v. Barnes, 463 U.S. 745, 751-54 (1983)(footnotes omitted). Therefore, although the
Eleventh Circuit has discretion to allow a criminal defendant to appeal pro se, “a defendant
does not have a constitutional right to proceed pro se on direct appeal,” see United States v.
Belitsky, 566 Fed. Appx. 777, 779 n.1 (11th Cir. 2014)(citing Martinez, 528 U.S. at 163), or
a right to compel appointed appellate counsel to follow his wishes with regard to presenting
issues on appeal, see Jones, 463 U.S. at 751-54.
As stated earlier, this court finds that the issues Denton seeks to raise in this Motion
to Vacate, except his ineffective assistance of appellate counsel, are procedurally barred.
He “did not avoid the default by attempting to file in the court of appeals a brief he, rather
than his appointed lawyer, drafted that raised those claims. That is so because there is no
constitutional right to represent oneself on direct appeal.” Cartman v. United States, No.
1:10-CR-512-ELR-LTW, 2018 WL 1148138, *7 (N.D. Ga. Jan. 19, 2018)(citing Martinez
v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 154, 163-64 (2000)), report
and recommendation adopted 2018 WL 1126734 (N.D. Ga. Mar. 1, 2018). “The court of
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appeals had authority to appoint a lawyer for [Denton], as it did, and [to] reject filings not
submitted by that lawyer.” Id. (citing Martinez, at 154, 163-64; 11th Cir. R. 25-1). Thus,
Denton’s Motion will be denied and his remaining claims summarily dismissed as
procedurally defaulted unless he can show his procedural default can be excused by one of
the two exceptions to the procedural-default rule.
The exceptions are: (1) for cause and prejudice, or (2) for a miscarriage
of justice, or actual innocence. See Lynn [v. United States], 365 F.3d [1225,]
1234 [(11th Cir. 2011)]. Under the cause and prejudice exception, a § 2255
movant can avoid application of the procedural default bar by “show[ing]
cause for not raising the claim of error on direct appeal and actual prejudice
from the alleged error.” Id. Under the actual innocence exception – as
interpreted by current Supreme Court doctrine – a movant’s procedural default
is excused if he can show that he is actually innocent either of the crime of
conviction or, in the capital sentencing context, of the sentence itself. See
Dretke v. Haley, 541 U.S. 386, 388, 124 S. Ct. 1847, 158 L. Ed. 2d 659
(2004).
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011)(footnote omitted).
“Constitutionally ineffective assistance of counsel can constitute cause . . . . In order
to do so, however, the claim of ineffective assistance must have merit.” Brown v. United
States, 720 F.3d 1316, 1333 (11th Cir. 2013)(internal quotations and citations omitted). “[A]
prisoner collaterally attacking his conviction can establish cause for a procedural default if
he can show that ‘some objective factor external to the defense impeded counsel's efforts to
comply with the . . . procedural rule,’ or that his attorney's performance failed to meet the
Strickland standard for effective assistance of counsel.” Reece v. United States, 119 F.3d
1462, 1465 (11th Cir. 1997)(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “[T]he
mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to

13

raise the claim despite recognizing it, does not constitute cause for a procedural default.”
Murray, 477 U.S. at 486. Denton “must show that no competent counsel, in the exercise of
reasonable professional judgment, would have omitted those claims.” See Hittson v. GDCP
Warden, 759 F.3d 1210, 1263 (11th Cir. 2014)(emphasis in original). To establish prejudice,
Denton must “shoulder the burden of showing, not merely that the errors at his trial [or
appeal] 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), quoted in Brown, 720 F.3d at
1333.
Before ordering the Government to answer Denton’s Motion to Vacate, the court
orders Denton to show cause, in writing, why his claims should not be dismissed as
procedurally defaulted. Denton’s response must be clear and concise; vague or conclusory
arguments are insufficient. “[G]eneralized allegations are insufficient in habeas cases. Rule
2(c) of the Rules Governing Section 2254 Cases5 requires petitioners to ‘specify all the
grounds for relief available to the petitioner’ and ‘state the facts supporting each ground.’”
Hittson, 759 F.3d at 1263 (footnote added).

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Rule 2(b) of the Rules Governing Section 2255 Proceedings is identical: “The
motion must: (1) specify all the grounds for relief available to the moving party; [and] (2)
state the facts supporting each ground . . . .”
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CONCLUSION
For the reasons set forth herein, the court will dismiss with prejudice Denton’s claim
of ineffective assistance of appellate counsel. Denton’s other claims, which appear to be
procedurally defaulted, will be dismissed with prejudice unless Denton can show, on or
before JULY 20, 2018, why such claims are not procedurally defaulted or why his default
should be excused under the cause-and-prejudice exception or the fundamental-miscarriageof-justice exception.
DONE this 11th day of June, 2018.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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