Wilborn v. United States of America

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/9/2014. (JLC)

FILED
2014 Jul-10 AM 08:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DON MITCHELL WILBORN,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.

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Case No.: 4:13-CV-8050-VEH
4:11-CR-0470-VEH-HGD

MEMORANDUM OPINION1,2
Now pending before the court is the Motion To Vacate Sentence Pursuant to
28 U.S.C. § 2255 (the “Motion”), filed by the Petitioner, Don Mitchell Wilborn
(“Petitioner”), through counsel. (Doc. 1). The Motion was filed on November 18,
2013. The Government has responded. (Doc. 6). Petitioner has replied. (Doc. 8).
Having fully considered all relevant pleadings in this case, and in the related
criminal case (United States v. Don Mitchell Wilborn, 4:11-cr-00470-VEH-HGD),
the undersigned finds that the counseled Motion is due to be denied.

1

The Government filed its Response under seal. However, neither the Motion nor the
Reply was filed under seal, and the court accordingly sees no reason to file this Memorandum
Opinion under seal.
2

All references in this opinion to “Doc. [No.]” and to page references within those
documents are to the document numbers and page references as assigned by the court’s cm/ecf
system. Further, all such references are to this § 2255 proceeding, unless reference to the related
criminal case is indicated.

All issues raised in the Motion, other than ineffective assistance of
plea/sentencing counsel, were affirmatively waived by the Petitioner in his plea
agreement and at his plea hearing. Of course, such waiver has no effect if the plea
is determined by the court not to have been knowing and voluntary. However, the
court finds, as it did at the plea hearing, that the plea was knowing and voluntary.
Therefore, the waiver stands. Further, even if the waiver were not a bar to the
issues (other than ineffective assistance) raised in the Motion, the Motion fails on
its merits as to all issues raised, including ineffective assistance. Thus, the Motion
is procedurally defaulted as well. The court finds no need to hold an evidentiary
hearing, and thus the request for such a hearing will be denied.3 Accordingly, the
Motion is due to be denied and the case dismissed with prejudice. Finally, the
court finds that any appeal from this determination would be frivolous and not
brought in good faith; thus, leave to appeal in forma pauperis and for a certificate
of appealablity will be denied.

3

There is no need for an evidentiary hearing because Petitioner’s claims can be resolved
based on the existing record. See Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983) (“An
evidentiary hearing is not required where, as here, the district court can determine the merits of
the ineffectiveness claim based on the existing record.”); see also Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002)(“[D]istrict court is not required to hold an evidentiary hearing where
the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently
frivolous.”).
2

PROCEDURAL HISTORY4
A superseding indictment charging a drug conspiracy and several
substantive offenses was filed under seal against Petitioner and others on February
1, 2012. (Doc. 9). The superseding indictment was unsealed upon Petitioner’s
arrest and initial appearance on February 7, 2012. Petitioner was charged with six
crimes: specifically, conspiracy to distribute and to possess with intent to
distribute 50 grams or more of methamphetamine, in violation of Title 21, United
States Code, Sections 841(a)(1) and (b)(1)(A) and 846 (Count One); four counts of
intentional distribution of 5 grams or more of methamphetamine, in violation of
Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B) (Counts Four, Five,
Six and Seven); and intentional distribution of a mixture and substance containing
a detectable amount of methamphetamine, in violation of Title 21, United States
Code, Sections 841(a)(1) and (b)(1)(C) (Count Eight).
On March 31, 2012, an Information to Establish Prior Felony Drug
Convictions was filed by the United States against Petitioner. (Doc. 45). The
Information alleged that Petitioner had three prior felony drug convictions, each of
which qualified as a “prior conviction for a felony drug offense” for purposes of

4

All references to the record in this portion of this Opinion are to the related criminal
case, 4:11-cr-470-VEH-HGD, unless otherwise indicated.
3

the enhanced penalty pursuant to Title 21, United States Code, Sections 841(a)(1),
841(b)(1)(A) and 851. (Id.).
A plea hearing was held on April 26, 2012. A plea agreement – which
Petitioner, during the plea hearing, acknowledged he signed – was filed in court
that same date. (Doc. 97). Consistent with the plea agreement, Petitioner pleaded
guilty to Count One (the conspiracy count). In return, the Government agreed to
move to dismiss, at sentencing, Counts Four, Five, Six, Seven, and Eight (the
distribution counts). The Government also agreed to make certain
recommendations at sentencing. The plea agreement specifically contemplated
substantial assistance by Petitioner. The Government agreed that, if Petitioner
provided substantial assistance, at sentencing it would file a motion requesting a
downward departure in the calculation of the Petitioner's advisory guideline
sentence. The Government further agreed that, should any of the counts of
conviction subject the Petitioner to a mandatory minimum sentence, “the
government may also seek a sentence reduction below said mandatory minimum
sentence, by including in its motion a recommendation pursuant to the provisions
of 18 U.S.C. § 3553(e).” (Id.). In the plea agreement, the Petitioner agreed to
waive his right to appeal his conviction and sentence. (Id. at pp.14-15). This
waiver was in bold print and was separately signed by the Petitioner. (Id.).
4

At the plea hearing, the Government reiterated all of these agreements.
Specifically, the Government stated that it had agreed to dismiss Counts Four,
Five, Six, Seven, and Eight. (Doc. 197 at p. 5). It stated that the plea agreement
contemplated substantial assistance; and that, in the absence of substantial
assistance, the Government would recommend an appropriate reduction in offense
level for acceptance of responsibility and a low-end sentence. (Id. at pp. 5-6). It
pointed out the page of the plea agreement where the Petitioner “waived certain
rights to appeal and rights to postconviction relief.” (Id. at p. 6). The court then
went over all of those provisions with the Petitioner. (Id. at pp. 6-8). Each time, he
said he understood. (Id.).
There was an extensive factual stipulation in the plea agreement. (Doc. 97 at
pp. 3-10). Further, in the factual stipulation, the Petitioner and the Government
stipulated and agreed as follows:
The parties stipulate and agree that defendant’s attributable
amount of methamphetamine to the conspiracy charged in Count One
of the indictment is 30,793.5 grams. The parties further stipulate that at
least 50 grams of this is actual methamphetamine.
(Id. 97 at p. 8) (emphasis in original).
The Petitioner signed his name immediately following the factual basis for the
plea as set out in the plea agreement. Specifically, by signing his name, he stated

5

that
The defendant hereby stipulates that the facts stated above are
substantially correct and that the Court can use these facts in
calculating the defendant's sentence. ***
(Id. at p. 10) (emphasis in original). Further, the court specifically offered to have
the Government read into the record the factual basis for the plea. (Doc. 197 at p.
19). Defense counsel stated that would not be necessary, that he and the Petitioner
had gone over the factual basis for the plea as set out in the plea agreement
“extensively,” and that the Petitioner would stipulate to the factual basis as set out
in the plea agreement. (Id.). The Petitioner confirmed to the court that he did not
need to have the factual basis read out loud in court, and that the facts as set out in
the factual basis for the plea agreement were substantially correct. (Id.). Further,
the following exchange occurred at the plea hearing.
THE COURT: Did you do the things that in the factual basis for the plea
agreement it is said that you did?
THE DEFENDANT: Yes, ma'am.
(Id. at p. 20).
In the plea agreement, Petitioner is advised of his maximum punishment for
conviction of Count One. Specifically, the plea agreement states:
The defendant understands that the maximum statutory punishment
that may be imposed for the crime of Conspiracy to Distribute and Possess
6

with Intent to Distribute a Controlled Substance, in violation of Title 21,
United States Code, Sections 846, 841(a)(1) and (b)(l)(A), as charged in
COUNT ONE, is:
a.
Imprisonment for not less than 10 years (if the defendant has
two or more prior felony drug convictions, then the mandatory
term of imprisonment becomes LIFE);
b.
A fine of not more than $10,000,000 (if the defendant has two
or more prior felony drug convictions, then the maximum fine
becomes $20,000,000), or,
c.
Both (a and b);
d.
Supervised release of not less than 5 years (if the defendant has
two or more prior felony drug convictions, then the supervised
release term becomes at least 10 years); and
e.
Special Assessment Fee of $100 per count.
(Doc 97 at p. 2).
At the plea hearing, the undersigned specifically asked both the Petitioner
and his counsel whether defense counsel had answered all of the Petitioner’s
questions to the Petitioner’s satisfaction. Defense counsel responded that he had,
except that the Petitioner wanted to know what his sentence would be, and defense
counsel had told him that was up to the court and that he couldn’t tell the
Petitioner what the court would decide. (Doc. 197 at pp. 8-11). The court
confirmed Petitioner’s satisfaction with his counsel, and further advised him that,
until after the court had seen the presentence report, even the undersigned could
not predict what that the sentence might be, but that the court would advise him at
the plea hearing as to what his maximum potential penalties would be for pleading

7

guilty to Count One. (Id.).
In going over the maximum penalties, the undersigned told the Petitioner
that, since he was only pleading guilty to Count One, the court was only going to
go over the maximum penalties for that count. (Id.). The undersigned then stated
that an Information seeking enhanced penalties for prior felony drug convictions
had been filed. The undersigned confirmed with the AUSA that the Information
was alleging more than one prior felony drug conviction. (Id. at pp. 12-13). The
undersigned then advised the Petitioner that the court was going to tell him his
maximum penalties with the enhancement for more than one prior felony drug
conviction. The undersigned told him those penalties were:
a fine of not more than 20 million dollars, custody -- a mandatory custody
period of life. And the custodial period would be followed by a supervised
release period of not less than 10 years. The guidelines apply, but they are
trumped by the statute, which says life.
There is a denial of specific federal benefits pursuant to [Title] 21, United
States Code, Section 862. And there can be no probation or suspension of
your sentence.
Also, the government is seeking forfeiture, and they've put you on notice of
forfeiture.
Also, if you're not a United States citizen, you may be subject to deportation
because of the plea of guilty you're entering here today.
Do you understand these maximum penalties I have just outlined?

8

THE DEFENDANT: Yes, ma'am.
THE COURT: Do you also understand that in determining a sentence, the
Court must consider applicable sentencing guidelines but that they are not
binding on the Court?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you understand that a statute that says a maximum or a
minimum term is binding on me absent some other statutory provision like a
3553(e) or a 5K motion?
THE DEFENDANT: Yes, ma'am.
(Id. at pp. 12-13) (emphasis supplied).
The court told the Petitioner several times that the plea agreement was not
binding on the judge or the court. Regarding his sentence, the undersigned told the
Petitioner:
THE COURT: In other words, do you understand, Mr. Wilborn, that if I
accept your plea of guilty, when I impose a sentence I could structure a
sentence totally consistent with the plea agreement or recommendations
made by the U.S. Attorney or I could impose a sentence that could be
viewed as substantially more severe or substantially less severe than the
sentence that you anticipate I will impose, and yet you would have no right
to withdraw the plea of guilty you're entering? Do you understand that?
(Id. at p. 11). The Petitioner responded, “Yes, ma’am.” (Id. at p. 12).
The Petitioner was advised by the court that he had a right to plead “not
guilty.” The Petitioner was advised of the rights he was giving up by pleading
guilty. He said he understood. (Doc. 197 at pp. 13-14).
9

The court also told the Petitioner what the Government would have to prove
in order for him to be convicted of the crime charged in Count One. He said he
understood that as well. (Id. at pp. 17-18).
The Probation Office prepared a Presentence Investigation Report (“PSR”).
On November 27, 2012, the court held a sentencing hearing and entered a final
judgment. (Doc. 198, “Sentencing Hearing Transcript”; doc. 172, “Judgment of
Conviction”). In response to defense counsel, the PSR was amended to make
certain clarifications and corrections. (Doc. 198 at p. 2). No party filed or stated
any objections to the PSR. The court specifically asked Petitioner if he had any
objections to it, after the addendum, and he said “no.” (Id. at pp. 3-4). The
Petitioner further specifically affirmed the prior felony convictions set out in the
Section 851 Information. (Id. at pp. 2-3).
The Government moved for downward departure pursuant to U.S.S.G. §
5K1.1 and/or 18 U.S.C. § 3553(e) and requested a custodial sentence of 300
months. (Doc. 130). At the sentencing hearing, the Government orally amended
their motion to request a custodial sentence of 262 months. (Doc. 198 at p. 14).
The Government also moved to dismiss Counts Four, Five, Six, Seven, and Eight.
(Id. at p. 15). The court granted the motions and sentenced Petitioner as follows:
Dismissed Counts Four, Five, Six, Seven, and Eight. 240 months custody followed
10

by 60 months supervised release. Forfeiture was ordered. (Doc. 172). There were
no objections to the sentence. (Doc. 198 at p. 21).
During the sentencing hearing, after his sentence was imposed, Petitioner
stated that he did not get involved in the conspiracy until 2010.
THE DEFENDANT: I know in the paperwork it says I was in this
conspiracy since 2002. I know it doesn't really matter, but that's totally
wrong. I got involved with these guys in April or May of 2010. I don't know
what -THE COURT: Well, I was surprised at that, but it was -THE DEFENDANT: I don't know what they had going on before I got
involved with them or whatever. But I just wanted to clarify that for you,
ma'am. I know that it probably doesn't have any weighing on anything, but
that's all wrong.
(Doc. 198 at pp. 24-25) (emphasis supplied).
The court then responded:
THE COURT: I appreciate you pointing that out. Because I departed based
only on substantial assistance, because of the statutory mandatory minimum,
and I departed from life to 20 years, it didn't have -- it doesn't have an
impact.
But I think that it's important, since I said it to your family, that you correct
it for your family. So I appreciate that. So I stand corrected, and I'm
certainly willing to take your statement.
(Id. at p. 25) (emphasis supplied).
Following the imposition of sentence, Petitioner did not pursue a direct

11

appeal.
THE § 2255 PROCEEDING5
In the pending proceeding, the Petitioner contends that his sentence was
excessive, that his criminal history was incorrectly calculated at sentencing, that
defense counsel was Constitutionally ineffective at both the plea and sentencing
phases, and that only one of the three prior felony drug convictions set out in the §
851 Information was “prior” to the offense conduct of the conspiracy, and,
therefore, the wrong mandatory statutory § 841 enhancement was applied. He
seeks resentencing. He does not seek to withdraw his guilty plea or allege that he
is actually innocent, either of the crime of conviction, or of the state felony drug
convictions that caused his sentence to be enhanced pursuant to 21 U.S.C. § 841.
APPLICABLE LEGAL PRINCIPLES
1. Habeas Generally
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which imposed the sentence
to vacate, set aside or correct the sentence . . . If the court finds that the
judgment was rendered without jurisdiction, or that the sentence imposed

5

All references to the record in this section of this opinion are to this § 2255 proceeding,
unless otherwise indicated.
12

was not authorized by law or otherwise open to collateral attack, or that
there has been such a denial or infringement of the constitutional rights of
the prisoner as to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the sentence as
may appear appropriate.
28 U.S.C. § 2255(a)-(b).
Habeas relief is an extraordinary remedy which “may not do service for a [ ]
[direct] appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). A petitioner
who has waived or exhausted his right to appeal is presumed to stand “fairly and
finally convicted.” Id. at 164. “[U]nless the claim alleges a lack of jurisdiction or
constitutional error, the scope of collateral attack has remained far more limited . .
. [A]n error of law does not provide a basis for collateral attack unless the claimed
error constituted a fundamental defect which inherently results in a complete
miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979)
(citation and quotation omitted); see also Burke v. United States, 152 F.3d 1329,
1331 (11th Cir. 1998) (“Nonconstitutional claims can be raised on collateral
review only when the alleged error constitutes a fundamental defect which
inherently results in the miscarriage of justice or an omission inconsistent with the
rudimentary demands of fair procedure.”) (citations and internal quotations
omitted).

13

2. Waiver by Defendant
The Eleventh Circuit has held that a defendant’s knowing and voluntary
waiver of the right to appeal and to collaterally attack his sentence is enforceable.
United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993) (“We agree with
the basic reasoning of our sister circuits that sentence appeal waivers may be
enforced. However, just as a guilty plea must be made knowingly and voluntarily
to be effective, so must a sentence appeal waiver.”) (internal citation and footnote
omitted); see also United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006)
(“[W]here it is clear from the plea agreement and the Rule 11 colloquy, or from
some other part of the record, that the defendant knowingly and voluntarily
entered into a sentence appeal waiver, that waiver should be enforced . .
.”)(citation omitted). The “core concern” in this analysis is “the defendant's
knowledge and understanding of the sentence appeal waiver.” Bushert, 997 F.2d at
1351.
For a sentence appeal waiver to be enforced, “[t]he government must show
that either (1) the district court specifically questioned the defendant concerning
the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly
clear from the record that the defendant otherwise understood the full significance
of the waiver.” Id. at 1351. “A waiver of the right to appeal includes a waiver of
14

the right to appeal difficult or debatable legal issues-indeed, it includes a waiver of
the right to appeal blatant error.” United States v. Howle, 166 F.3d 1166, 1169
(11th Cir. 1999). “Waiver would be nearly meaningless if it included only those
appeals that border on the frivolous.” Id.; see also Brown v. United States, 256 F.
App’x 258, 261–62 (11th Cir. 2007) (unpublished) (holding that Petitioner's right
to collateral review was waived by sentence appeal waiver in plea agreement).
However, to the extent that a defendant reserves a ground for such appeal or
collateral attack, such ground is not waived. See United States v. Westry, Civ. No.
07-0425-WS, 2007 WL 3287371, at *6 (S.D. Ala. Nov. 2, 2007) (Steele, J.)
(holding, on a § 2255 Motion, that where a plea agreement expressly reserved to a
defendant the right to appeal based on ineffective assistance of counsel, such right
was not waived).
3. Procedural Default
Petitioner took no direct appeal of the conviction and sentence in his
underlying criminal case. In general, claims not raised on direct appeal may not be
considered on collateral attack. E.g., Massaro v. United States, 538 U.S. 500, 504
(2003). A petitioner can, nevertheless, overcome his procedural default of claims
not raised on direct appeal:
To obtain collateral relief on errors that were not raised on direct appeal, [a
15

petitioner] “must show both (1) ‘cause’ excusing his double procedural
default, and (2) ‘actual prejudice’ resulting from the errors of which he
complains.” United States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584,
71 L. Ed. 2d 816 (1982). This standard is “a significantly higher hurdle than
would exist on direct appeal.” Id. at 166, 102 S.Ct. 1584 . . .
. . . “Constitutionally ineffective assistance of counsel can constitute cause”
under Frady. Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir. 2000). “In
order to do so, however, the claim of ineffective assistance must have
merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).
Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013); see also Cross v.
United States, 893 F.2d 1287, 1289 (11th Cir. 1990).6
However, “failure to raise an ineffective-assistance-of-counsel claim on
direct appeal does not bar the claim from being brought in a later, appropriate
proceeding under § 2255.” Massaro, 538 U.S. at 509. Indeed, “in most cases a
motion brought under § 2255 is preferable to direct appeal for deciding claims of
ineffective assistance.” Id. at 504.
4. Ineffective Assistance of Counsel
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.
668, 684–86 (1984). To prevail on a claim of ineffective assistance of counsel, the

6

A defendant may also obtain collateral relief on errors not raised on direct appeal if he
demonstrates actual innocence. E.g., Bousley v. United States, 523 U.S. 614, 622 (1998).
However, Petitioner does not assert actual innocence.
16

petitioner must demonstrate: (1) that his counsel's performance fell below an
objective standard of reasonableness; and (2) that he suffered prejudice as a result
of that deficient performance. Strickland, 466 U.S. at 687–88. Thus, a petitioner
must establish both prongs of the Strickland test. Johnson v. Alabama, 256 F.3d
1156, 1176 (11th Cir. 2001). With respect to the deficient performance prong, the
petitioner must show that his counsel made errors so serious that he was not
functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466
U.S. at 687. Of course, there is a strong presumption that counsel's conduct fell
within the range of reasonable professional assistance. Id. at 689. Counsel's
performance is deficient only if it falls below the wide range of competence
demanded of attorneys in criminal cases. Id.
In addition to deficient performance, a petitioner asserting an ineffective
assistance of counsel claim is also required to demonstrate prejudice. Purvis v.
Crosby, 451 F.3d 734, 743 (11th Cir. 2006). Prejudice 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. It is not enough for the
petitioner to show that the error had some conceivable effect on the outcome of the
proceeding. Rather, the petitioner must show that the result would have been
different. Id. at 693.
17

“In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the
Supreme Court held that ‘the two part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of counsel,’ and that ‘to
satisfy the “prejudice” requirement, 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.’” United States v. Pease, 240 F.3d
938, 941 (11th Cir. 2001) (quoting Hill, 474 U.S. at 58–59).
PETITIONER’S CLAIMS
Petitioner asserts three grounds for relief:
• Ground 1—His sentence was excessive.
• Ground 2—His counsel was ineffective at the plea stage because he did
not advise Petitioner of the “true” statutory and guideline ranges and therefore
Petitioner’s guilty plea was not knowing and voluntary.
• Ground 3—His counsel was ineffective at the sentencing stage because
counsel failed, at sentencing, to object to the Presentence Investigation Report
(“PSR”), specifically, paragraphs 63 through 81, or to the findings of court that
those unobjected-to paragraphs would be adopted by the court, and, as a result,
• Petitioner’s criminal history was too high because prior sentences
were improperly considered;
18

• Petitioner’s offense level was improperly enhanced as a manager or
supervisor and defense counsel failed to demand a hearing as to
Petitioner’s role in the conspiracy;
• The amount of drugs attributed to Petitioner was wrong; and
• The court applied an improper sentence enhancement for
commission of a crime while on supervised probation.
Petitioner’s various grounds for relief challenge the knowing and voluntary nature
of his guilty plea and the correctness of his sentence. Accordingly, the court will
first address Petitioner’s ineffective assistance arguments challenging his guilty
plea, as the granting of relief on any such ground would moot any claim as to his
sentence. The court will then address petitioner’s ineffective assistance arguments
as to his sentencing. The court will then address the impact of Petitioner’s plea
waiver. Finally, the court will address Petitioner’s procedural default.
ANALYSIS
Ineffective Assistance Challenge to the Guilty Plea
Where a defendant claims that his guilty plea was a product of his attorney’s
deficient performance, to show prejudice the defendant must demonstrate “a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 (emphasis
19

supplied).
While “significant misleading statements of counsel” related to the length of
a potential sentence that prompt a defendant to plead guilty can amount to
ineffective assistance, Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972)7,
where, as here, a court correctly advises a defendant at the plea colloquy about his
potential sentence, including its possible maximum and minimum, a defendant
generally cannot establish prejudice on an effective-assistance claim based on an
erroneous sentence prediction. See, e.g., United States v. Pease, 240 F.3d 938,
941-42 (11th Cir. 2001); Harris v. United States, 769 F.2d 718, 720 n.1 (11th Cir.
1985); see also Hughes v. United States, No. 7:11-CV-90102 HL, 2012 WL
1933668, at *2 (M.D. Ga. May 3, 2012), report and recommendation adopted, No.
7:11-CV-90102 HL, 2012 WL 1933345 (M.D. Ga. May 29, 2012); Jones v. United
States, No. 5:06-CR-00019 MTT, 2012 WL 2061906, at *4 (M.D. Ga. Apr. 27,
2012), report and recommendation adopted, No. 5:06-CR-19 MTT, 2012 WL
2061905 (M.D. Ga. June 7, 2012). Thus, Petitioner’s ineffective assistance of
counsel claim at the plea stage fails on the merits.
Such claim also fails because he does not even allege that, had his counsel

7

This authority is controlling in the Eleventh Circuit. See Bonner v. City of Prichard, Ala.,
661 F.2d 1206, 1209 (11th Cir. 1981) (holding that decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit).
20

told him that he faced a maximum sentence of life imprisonment, he would not
have pleaded guilty. Further, he does not seek to withdraw his guilty plea. Under
Hill, this is insufficient to support a claim of ineffective assistance of counsel,
even assuming that plea counsel affirmatively misinformed Petitioner as to the
potential consequences of pleading guilty. See United States v. Oliver, 522 F.
App’x 525, 529 (11th Cir. 2013) (unpublished) (“To establish prejudice in the
context of a guilty plea, 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.’”) (citing Hill). Further, it is well established
that, if the defendant makes an insufficient showing on one prong, the court does
not need to address the other prong. See Holladay v. Haley, 209 F.3d 1243, 1248
(11th Cir. 2000).
Ineffective Assistance Challenge to the Sentence
As the Government correctly points out, “[b]ecause of the Section 851
Information, the [Petitioner] faced a mandatory life sentence regardless of his
guideline range or criminal history category.” (Doc. 6 at p. 8). Accordingly, the
court turns to Petitioner’s ineffective assistance challenge related to the Section
851 Information.
Initially, the court notes that the law is clearly established that the enhanced
21

penalties resulting from prior felony drug convictions applicable to persons guilty
of drug trafficking crimes8 are mandatory statutory enhancements, not sentencing
guidelines enhancements. Thus, Petitioner’s arguments about the guidelines and
the impact of Booker on the guidelines are misplaced. Booker in no way limited
the power of Congress to enact mandatory minimum penalties. See United States
v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (holding that “the district
court remains bound by statutes designating mandatory minimum sentences even
after the remedial holding of United States v. Booker”) (citation omitted).
The statutory penalties applicable to a person found guilty of the crime to
which the Petitioner pleaded guilty are found at 21 U.S.C. § 841(b)(1)(A):
[S]uch person shall be sentenced to a term of imprisonment which
may not be less than 10 years or more than life and if death or serious
bodily injury results from the use of such substance shall be not less
than 20 years or more than life, a fine not to exceed the greater of that
authorized in accordance with the provisions of Title 18 or
$10,000,000 if the defendant is an individual or $50,000,000 if the
defendant is other than an individual, or both. If any person commits
such a violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years and not more than
life imprisonment and if death or serious bodily injury results from
the use of such substance shall be sentenced to life imprisonment, a

8

It is undisputed that Petitioner pleaded guilty to a drug trafficking crime. Specifically, he
pleaded guilty to Count One, conspiracy to distribute, and to possess with intent to distribute, 50
grams or more of methamphetamine, in violation of Title 21, United States Code, Sections
841(a)(1) and (b)(1)(A) and 846.
22

fine not to exceed the greater of twice that authorized in accordance
with the provisions of Title 18 or $20,000,000 if the defendant is an
individual or $75,000,000 if the defendant is other than an individual,
or both. If any person commits a violation of this subparagraph or of
section 849, 859, 860, or 861 of this title after two or more prior
convictions for a felony drug offense have become final, such person
shall be sentenced to a mandatory term of life imprisonment without
release and fined in accordance with the preceding sentence.
Notwithstanding section 3583 of Title 18, any sentence under this
subparagraph shall, in the absence of such a prior conviction, impose
a term of supervised release of at least 5 years in addition to such
term of imprisonment and shall, if there was such a prior conviction,
impose a term of supervised release of at least 10 years in addition to
such term of imprisonment. Notwithstanding any other provision of
law, the court shall not place on probation or suspend the sentence of
any person sentenced under this subparagraph. No person sentenced
under this subparagraph shall be eligible for parole during the term of
imprisonment imposed therein.
21 U.S.C.A. § 841(b)(1)(A) (emphasis supplied).
Because, if application of the § 851 enhancement for two or more prior
felony drug convictions was correct, none of the other alleged sentencing errors
could have had any impact on Petitioner’s sentence, the court will first address
Petitioner’s arguments that such enhancement was error. For the reasons set out
below, the court finds that such enhancement was not error.9 As a result, the

9

Petitioner’s counsel argues that “[Petitioner] would have received a shorter sentence if
trial counsel had objected to his role in the conspiracy, his criminal history range, the amount of
drugs attributable to him, and the sentencing enhancement made because the crime was
committed while [Petitioner] was on probation.” (Doc 1 at p. 11.) This is simply wrong. None of
these Sentencing Guidelines factors had the potential for any impact on Petitioner’s sentence
once the statutory enhancement for two or more prior felony drug convictions applied.
23

failure of trial counsel to object to such enhancement was not ineffective
assistance.
Petitioner’s counsel argues that neither of Petitioner’s two felony drug
convictions were “prior” to his conviction before this court, and therefore should
not have resulted in application of the Career Offender enhancement under 21
U.S.C. § 841. He does not tell the court which two convictions he refers to, but he
does, by footnote, reference Paragraphs 66 and 68 of the PSR. Thus, the court
concludes that those are the convictions at issue. Those paragraphs are set out
below.
66.

12/13/2000 (Age 26)

Unlawful Possession of a Controlled Substance (Methamphetamine)
Etowah County Circuit Court; Gadsden, AL Case No.: CC-01535.02
12/15/00: Released.
02/22/05: Convicted. Sentenced to 3 years custody, suspended. Placed on 3
years probation. To run concurrently with CC 01-536 and Marshall County
cases. Ordered to pay $1,000 fine (remitted), $50 victim fee, and $1,100
Drug Demand Assessment and costs. Referred to CRO for evaluation and
treatment.
11/09/05: Drug Demand Assessment reduced.
12/21/06: Discharged from probation.
The defendant was represented by counsel. The defendant was also charged
in CC-01-535.01 with Trafficking Methamphetamine; however, that case
24

was dismissed on December 22, 2005.
Details: Count 1 charged that the defendant sold, manufactured, or delivered
in excess of 28 grams of methamphetamine. Count 2 charged that on
December 13, 2000, the defendant possessed methamphetamine.
[Paragraph 67. omitted here.]
68.

03/19/2003(Age 30)

1) Distribution of Controlled Substance (Methamphetamine)
2) Possession of Controlled Substance (Methamphetamine)
Marshall County Circuit Court; Guntersville, AL Case No.: CC-04-11 and
12
02/24/04: pled guilty.
04/02/04: Sentenced in each case to 5 years custody, split sentence, to serve
270 days, balance suspended, with credit for 270 days time served. Placed
on 3 years probation. Ordered to complete Phase II drug court. Fined $100
in each case. Ordered to pay victim fee and $1,000 drug demand reduction
fee.
04/25/06: Paid in full (CC 04-12).
11/14/06: Paid in full (CC 04-11)
The defendant was represented by counsel. These cases are counted as a
single sentence because they were not separated by an intervening arrest,
and the sentences were imposed on the same date. It is noted that these
cases are not relevant conduct, and they were not included in the drug
attribution amounts for the instant federal offense.
The defendant participated in and completed drug court in this case.
Details in CC 04-11: On March 7, 2003, Marshall County Drug
Enforcement Unit agents had knowledge that drugs were being sold at the
defendant's residence in Albertville, Alabama. Agents monitored a call in
which the defendant told an informant that he (Wilborn) had drugs for sale
25

and arrangements were made for them to meet at Wal-Mart in Guntersville,
Alabama. Agents searched the informant prior to the transaction with
negative results, fitted her with a wire, and gave her $80 to purchase drugs
from Wilborn. Agents went to Wal-Mart and monitored the electronic wire.
Wilborn told the informant to go into Wal-Mart, and while in the store,
Wilborn shoved a baggie containing crystal methamphetamine into her
right back pocket. She paid him $80, and they arranged to meet later for
another transaction. The substance field-tested positive for
methamphetamine.
Details in CC 04-12: On March 19, 2003, Officer Segers of the Albertville,
Alabama, Police Department was on patrol and while conducting a routine
check of the Jamison Inn in Albertville, noticed a Jeep Cherokee. As the
officer approached the vehicle, he recognized the occupants as the
defendant and Michelle Barksdale. The defendant exited the vehicle and
said, "Segers, man, why are you giving me a hard time?" The officer asked
if the defendant had any weapons on him, at which time the defendant
stuck his hand in his pocket. The officer drew his weapon and instructed
the defendant to take his hand out of his pocket. During a search of the
defendant's person, a pocketknife was found in the pocket the defendant
had been reaching in. A warrant check revealed the defendant had an
outstanding warrant. A search of the vehicle revealed a clear plastic baggie
containing methamphetamine wrapped in electrical tape. Digital scales
were also found in the vehicle. The substance field-tested positive for
methamphetamine, and using the scales found in the vehicle, the officer
found that the substance weighed 2.4 grams.
It is undisputed, even now, that Petitioner was convicted of and sentenced
on February 22, 2005, for the felony drug offense listed at Paragraph 66 of the
PSR, and that he was sentenced on April 2, 2004, for his conviction of the felony
drug offense listed at Paragraph 68 of the PSR.10 Petitioner’s counsel argues that

10

It is not disputed that both these convictions were for felony drug offenses. Indeed,
Petitioner’s counsel concedes that they were felony drug offenses. See, e.g., “there are two felony
drug convictions that were not final prior to the commission of the instant offense conviction.”
26

both of these “felony drug convictions were not final prior to the commission of
the instant offense conviction” (doc. 1 at p. 5) (emphasis in original), and,
accordingly, “should not [have been] counted in the criminal history calculation
because the offenses were not final.” (Id.) (emphasis in original). Petitioner’s
counsel argues that the reasons they were not final is because the instant drug
trafficking conspiracy that Petitioner pleaded guilty to and for which he was
sentenced before the undersigned
began in or about the year 2002 and continued until on or about January
18, 2012.
The two offenses that were counted in the calculation of the criminal
history points did not conclude and were not final until 2004 and 2005 --well after the commission of the instant convicted offense which began in
2002. These drug convictions were then assessed at a total of three (3)
points.
Id.
Petitioner relies on cases from the First and Second Circuits for his
argument that the two challenged convictions had not “become final” “prior to
sentencing for the instance convicted offense.” (Id. at p. 4).11 Rather, he argues
that these two state court convictions should have been considered “relevant
conduct” and not counted “separately” from the federal drug conspiracy to which

(Doc. 1 at p. 5) (emphasis omitted).
11

The Government does not mention the cases cited by Petitioner, not does it cite any
cases for its proposition that “[Petitioner] is wrong.” (Doc. 6 at p. 11).
27

he pleaded guilty. The Petitioner’s argument frankly makes no sense. The prior
drug conviction referenced in Paragraph 66 of the Presentence Report was for
criminal conduct that occurred no later than December 13, 2000 (the date of
Petitioner’s arrest for that conduct). This date is clearly prior to the year - 2002 in which the conspiracy (and thus any relevant conduct for which the petitioner
was sentenced by the undersigned) began. Although the prior drug conviction
referenced in Paragraph 68 of the PSR was for criminal conduct that occurred no
later than March 19, 2003 (the date of Petitioner’s arrest for that conduct), which
is a date after the conspiracy began, it is well before the date on which that
conspiracy ended approximately nine years later, January 18, 2012. Further, it is
well before 2011, the year in which the Petitioner admitted, in the factual basis
for his written plea agreement, that he engaged in drug trafficking conduct as part
of the conspiracy to which he pleaded guilty.
More important, however, is that Petitioner’s argument seems to be that,
since these prior convictions (neither of which were appealed) became final
during the period that the conspiracy was in effect, they necessarily could not
have been final because the Petitioner was part of a long-running drug trafficking
conspiracy. In other words, so long as a drug trafficking conspiracy is in
existence, any felony drug conviction of any conspirator is necessarily a part of

28

that drug trafficking conspiracy and so is not final prior to the last conduct that is
part of the drug trafficking conspiracy. Petitioner’s argument is foreclosed by
binding precedent in this Circuit.12
In Hagins v. United States, 267 F.3d 1202 (11th Cir. 2001), the Eleventh
Circuit expressly rejected the very arguments that Petitioner raises here. Hagins
was convicted by a jury of conspiracy to possess with intent to distribute and to
distribute cocaine hydrochloride and cocaine base in violation of 21 U.S.C. §§
841(a)(1) and 846. The alleged conspiracy dated from 1993 to November 18,
1996. Prior to trial, the government filed notice that it would seek a sentencing

12

Petitioner’s arguments also are not supported by the cases he relies upon, all of which
are found at footnotes 37 and 43 of his Motion. (Doc. 1 at p. 6, n.37, 43). United States v. Lopez,
349 F.3d 39 (2d Cir. 2003), United States v. Espinal, 981 F.2d 664 (2d Cir. 1992), and United
States v. Flowers, 995 F.2d 315 (1st Cir. 1993) are all cited in footnote 37 to support Petitioner’s
argument that “any offense committed after the instant charged offense, but adjudicated prior to
sentencing, should be counted in the criminal history calculation.” (Doc. 1 at pp. 5-6). However,
none of these cases had anything to do with a sentencing enhancement under 21 U.S.C. § 841.
Rather, they all instruct how to determine the number of criminal history points under the
Sentencing Guidelines. Petitioner is correct that “For purposes of the Sentencing Guideline
requiring the addition of criminal history points for each prior [felony] sentence . . . the term
“prior sentence” is not directed at the chronology of the conduct, but the chronology of the
sentencing.” (Id.). However, inappositely to these cases and Petitioner’s argument, the
chronology of sentencing here is that Petitioner’s sentences for both state felony drug convictions
were imposed prior to the date on which the Petitioner was sentenced for the instant offense.
The cases cited by Petitioner at footnote 43 are similarly inapposite and unhelpful to
Petitioner’s argument that the prior felony drug convictions should be considered “part of the
instant offense” (Doc. 1 at p. 6) and are “relevant conduct.” (Id.). In fact, as explained in United
States v. Duty, 302 F.3d 1240 (11th Cir.2002), it and the other cases cited in footnote 43 hold that
“[p]rior sentences are not considered related [for purposes of Chapter 4 of the Guidelines] if they
were for offenses that were separated by an intervening arrest.” Id. at 1241-42 (emphasis
supplied). It is clear that an arrest “intervened” between each of Petitioner’s arrests at issue:
12/13/2000 (PSR ¶ 66); 3/19/2003 (PSR ¶ 68); and the instant offense (2/7/2012).
29

enhancement for Hagins based on a prior state conviction. Hagins’s coconspirator pleaded guilty pursuant to a plea agreement, but Hagins proceeded to
trial and was found guilty. He was sentenced to a mandatory minimum of 240
months. On direct appeal, the Eleventh Circuit affirmed Hagins’s conviction and
sentence.
Hagins then filed a § 2255 Petition, asserting ineffective assistance of trial
counsel at trial and at sentencing. As to ineffective assistance at sentencing,
Hagins asserted, in relevant part, that his counsel was ineffective in: (1) failing to
object to the enhancement of Hagins's sentence under 21 U.S.C. § 841(b)(1)(A)
based on a prior conviction where that prior conviction was not yet final; and (2)
failing to object to the same enhancement on the grounds that the conviction was
relevant conduct included in the federal conspiracy charge and was not a proper
predicate conviction. The district judge denied the petition but granted a
certificate of appealablity on all of Hagins’s issues, including the two set out in
this paragraph. After review, the Eleventh Circuit affirmed the denial of the
petition.
The Eleventh Circuit held that the prior conviction was both final and not
relevant conduct; thus, application of the enhancement was proper. Because the
issues and facts in Hagins are analytically indistinguishable from those raised

30

here, the undersigned has set out the entire relevant portion of the Eleventh
Circuit’s opinion.
2. Finality of Hagins's Prior Conviction
Hagins also protests the enhancement of his sentence to a mandatory
minimum of twenty years because of a prior drug conviction. On 19
February 1996, Hagins pled guilty in a Jenkins County, Georgia, court to
possession with intent to distribute cocaine. Hagins was sentenced under
Georgia's First Offender Act, O.C.G.A. § 42-8-60, et seq., adjudication of
guilt was withheld, and he was given five years of probation. Because of
Hagins's arrest for the federal offense, the state court on 22 January 1997
revoked his first offender status and sentenced him to fifteen years in
prison for the state possession with intent to distribute charge. When
Hagins was sentenced on the federal charge, Greene did not object to the
enhancement of his sentence based on the prior state conviction.
A sentence enhancement under 21 U.S.C. § 841(b)(1)(A) is proper if
based on a final prior conviction. Hagins argues that his prior conviction
was not final until after the conspiracy terminated *** Hagins also argues
that his prior conviction was not final until he exhausted his discretionary
direct appeal of the revocation of his first offender status. Accordingly, he
asks us to find that [his counsel] rendered ineffective assistance by failing
to object to the enhancement.
***
b. Finality of Prior Conviction
Hagins [] argues that his prior state conviction cannot be used to
enhance his sentence because it is still not yet final. Hagins was sentenced
as a first offender on 19 February 1996. According to Georgia law, he had
thirty days to appeal that sentence. See O.C.G.A. § 5-6-38(a) (“A notice of
appeal shall be filed within 30 days after entry of the appealable decision
or judgment complained of....”). The Georgia courts have held that
classification as a first offender starts the clock for purposes of filing an
appeal. “[F]irst-offender status takes the place of a ‘sentence’ and once
31

imposed upon a criminal defendant, his case assumes the mantle of finality
necessary to bring a direct appeal of his conviction.” Dean v. State, 177
Ga.App. 123, 338 S.E.2d 711, 712 (Ga.Ct.App.1985).
Hagins argues, however, that the finality of his conviction should
run from the direct discretionary appeal of the revocation of his
first-offender status. This argument is specious. In United States v.
Fernandez, the defendant had received a year of probation after pleading
nolo contendere to a state charge of trafficking in cocaine. 58 F.3d 593,
599 (11th Cir.1995) (per curiam). We held that a sentence may be
enhanced based on such a prior state court sentence of probation under a
deferral statute. Id. at 599-600. See also United States v. Jones, 910 F.2d
760, 761 (11th Cir.1990) (holding that a similar disposition qualified as a
prior conviction for purposes of determining career offender status). If such
a conviction can be used to enhance a defendant's sentence without a
revocation of probation, it follows that we need not wait for revocation of
probation and any related appeal to deem the conviction final. Hagins's
conviction became final when the thirty days available to him to appeal the
original disposition expired. That date was 23 March 1996. Because
Hagins's conviction was final he cannot demonstrate prejudice from [his
counsel’s] failure to object to his sentence enhancement on that basis.
3. Prior Conviction Was Not Part of Relevant Conduct
Finally, Hagins asserts that he was prejudiced by [his counsel’s]
failure to object at sentencing to enhancement of his sentence because the
prior conviction was for drug activity that was part of the same course of
conduct as his federal charge. He relies on United States v. Hansley, 54
F.3d 709 (11th Cir.1995), to argue that insufficient time passed between
his state conviction and federal arrest to allow use of the state conviction as
a predicate offense for enhancement purposes. In Hansley, eighteen months
passed between the state conviction and federal arrest. Id. at 717. The test,
however, is not mere passage of time. As the court noted in Hansley,
because the intent of the enhancement provision is to target recidivism, the
focus of the inquiry is on “ ‘the degree of criminal activity that occurs after
a defendant's conviction for drug-related activity is final rather than when
the conspiracy began.’ ” Id. (quoting United States v. Garcia, 32 F.3d
1017, 1019-20 (7th Cir.1994)). See also United States v. Howard, 115 F.3d
32

1151, 1158 (4th Cir.1997) (relying on Hansley to determine that conviction
during course of conspiracy can serve as prior conviction for enhancement
purposes when a month elapsed between state conviction and federal
arrest).
In Howard, evidence was presented that the defendant continued to
engage in the conspiracy after his state conviction. Id. at 1158. Similarly,
Hagins continued to provide drugs to Johnson as evidenced by the tape of
the 28 March phone call. When Hagins was arrested, he had a significant
amount of cash which he admitted he was going to use to purchase drugs.
As in Howard, “[t]he only thing that aborted [his] participation in the drug
conspiracy was his arrest in this case.” Id. Hagins's argument that the state
conviction was part of the same course of conduct and cannot serve as a
predicate conviction for enhancement purposes is without merit.
Accordingly, he cannot demonstrate that he was prejudiced by [his
counsel’s] failure to object [to the sentencing enhancement].
Hagins v. United States, 267 F.3d at 1206-08.
Like the petitioners in Howard and in Hagins, Petitioner continued to
engage in the instant drug trafficking conspiracy after his state convictions. In the
factual basis for his plea agreement, Petitioner admitted to multiple acts in 2011 after both state felony drug convictions - that were part of the conspiracy to
which he pleaded guilty. Specifically, he admitted that:
On July 1, 2011, a CI recorded a telephone call in which s/he set up
a deal to buy methamphetamine from Wilborn. The CI wore an
audio/video recording device and arrived at the shop/outbuilding on
Wilborn’s property. S/He went inside and gave Wilborn $800. Also
present was Kristie Gretchen Gauntt who received what looked like one
half ounce of meth from Wilborn. Wilborn didn’t have more, so the CI had
to go back later to pick up the meth. The CI went back a couple of hours
later still wearing the recording device and receives the meth from
Wilborn. The CI returned to agents with the methamphetamine which was
33

analyzed by the DEA lab and found to be 10.6 grams of actual
methamphetamine. (Count 4).
On July 7, 2011, a CI recorded a telephone call in which s/he set up
a deal to buy methamphetamine from Wilborn. The CI wore an
audio/video recording device and arrived at the shop/outbuilding on
Wilborn’s property. S/He went inside and paid Wilborn $500 for two
“eight balls”. The CI returned to agents with the methamphetamine which
was analyzed by the DEA lab and found to be 8.8 grams of actual
methamphetamine. (Count 5).
On July 8, 2011, a CI recorded a telephone call in which s/he set up
a deal to buy methamphetamine from Wilborn. The CI wore an
audio/video recording device and arrived at the shop/outbuilding on
Wilborn’s property. S/He went inside and gave Wilborn $750. Wilborn
didn’t have the meth ready, so the CI had to go back later to pick up the
meth. The CI went back a couple of hours later still wearing the recording
device and received the meth from Kristie Gauntt. The CI returned to
agents with the methamphetamine which was analyzed by the DEA lab and
found to be 10.8 grams of actual methamphetamine. (Count 6).
On July 13, 2011, a CI recorded a telephone call in which s/he set up
a deal to buy methamphetamine from Wilborn. The CI wore an
audio/video recording device and arrived at the shop/outbuilding on
Wilborn’s property. Wilborn, Gauntt and an unidentified male were
standing outside. The CI gave Wilborn $750. The meth wasn’t ready, so
the CI had to go back later to pick up the meth. The CI went back a couple
of hours later wearing the audio recording device and receives the meth
from Wilborn. Gauntt was there. The CI returned to agents with the
methamphetamine which was analyzed by the DEA lab and found to be
10.5 grams of actual methamphetamine. (Count 7).
On September 27, 2011, a CI recorded a telephone call in which s/he
set up a deal to buy methamphetamine from Wilborn the next day. The CI
wore an audio/video recording device and arrived at the shop/outbuilding
on Wilborn’s property. S/He went inside and gave Wilborn $2,800.
Wilborn had to leave to go get the methamphetamine. Wilborn left his
shop and agents followed him to a house located at 808 Nelson Road. He
34

met briefly with two Hispanic males who arrived in a white Nissan Altima.
Wilborn returned to his shop and handed the CI approximately two ounces
of methamphetamine. The CI returned to agents with the
methamphetamine which field tested positive for methamphetamine.
(Count 8).
(Doc. 97, 4:11-cr-0470-VEH-HGD). In accord with Hagins and Howard, the
undersigned finds that Petitioner’s state felony drug convictions were final prior
to imposition of the sentence he now challenges and were not relevant conduct to
the conduct that supplied the factual predicate for such conviction and sentence.
Waiver of Claims
Because Petitioner’s ineffective assistance of counsel at the guilty plea
stage claims fail, the court agrees with the Government’s argument that all of
Petitioner’s other claims are barred by his guilty plea. (Doc. 6 at p.3). The
Government cites Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. Unit B
1981)13, for the proposition that “[a] defendant who enters a plea of guilty waives
all nonjurisdictional challenges to the constitutionality of the conviction, and only
an attack on the voluntary and knowing nature of the plea can be sustained.” (Id.).
This is a correct statement of the law. However, it does not join issue with
Petitioner’s Motion. Petitioner does not challenge his conviction, he challenges

13

This decision is binding in this Circuit. See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34
(11th Cir. 1982) (adopting as binding precedent all of the post-September 30, 1981, decisions of
Unit B of the former Fifth Circuit.).
35

his sentence.14
A sentence appeal waiver will be enforced if it was made knowingly and
voluntarily. Bushert, 997 F.2d at 1351. To establish that the waiver was made
knowingly and voluntarily, the government must show either that: (1) “the district
court specifically questioned the defendant” about the waiver during the plea
colloquy, or (2) the record makes clear “that the defendant otherwise understood
the full significance of the waiver.” Id.
Petitioner has not alleged that his waiver was not knowing and voluntary.
Rather, he has argued, correctly, that “he cannot waive the ineffective assistance
of counsel which resulted in his plea and sentence on faulty advice.” (Doc. 8 at
p.1). Further, in the negotiated plea agreement, Petitioner expressly “reserve[d]
the right to contest in an appeal or postconviction proceeding the following: . . .
Ineffective assistance of counsel.” (4:11-cr-0470-VEH-HGD, Doc. 97 at p. 15).
However, as set out above, Petitioner has failed to show ineffective assistance of
counsel. All of his other claims, accordingly, were waived in his plea
agreement.15
14

As set out above, Petitioner does not seek to withdraw his guilty plea. He only seeks
resentencing.
15

Petitioner does not argue that any of his claims fall within the rights of appeal and/or
collateral attack reserved to him by the plea agreement from his waiver. The Government
similarly does not discuss such reserved rights. However, the court recognizes that such rights
were so reserved insofar as Petitioner’s arguments are couched in terms of ineffective assistance
36

PROCEDURAL DEFAULT
As set out above, the Petitioner did not appeal his conviction or sentence.
This failure to appeal has consequences here.
Courts have long and consistently affirmed that a collateral challenge, such
as a § 2255 motion, may not be a surrogate for a direct appeal. See, e.g., Frady,
456 U.S. at 165 (collecting cases). Because collateral review is not a substitute
for a direct appeal, the general rules have developed that: (1) a defendant must
assert all available claims on direct appeal, Mills v. United States, 36 F.3d 1052,
1055 (11th Cir. 1994); and (2) “[r]elief under 28 U.S.C.A. § 2255 is reserved for
transgressions of constitutional rights and for that narrow compass of other injury
that could not have been raised in direct appeal and would, if condoned, result in
a complete miscarriage of justice.” Richards v. United States, 837 F.2d 965, 966
(11th Cir. 1988) (quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.
Unit A Sep.1981)) (emphasis supplied). Accordingly, a non-constitutional error
that may justify reversal on direct appeal does not generally support a collateral
attack on a final judgment, Frady, 456 U.S. at 165, unless the error (1) could not
have been raised on direct appeal and (2) would, if condoned, result in a complete
miscarriage of justice. Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S. Ct. 3037,

of counsel.
37

3044 n. 10, 49 L. Ed. 2d 1067 (1976).
All of Petitioner’s alleged sentencing errors, other than ineffective
assistance of counsel, are non-constitutional in nature and thus are procedurally
defaulted unless Petitioner can first demonstrate either “cause” and “actual
prejudice,” or a miscarriage of justice, i.e., that he is “actually innocent.” Bousley
v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998).
Here, Petitioner has not even alleged “cause” other than ineffective
assistance of counsel, which allegation the court has found lacks merit. Further,
as explained in the court’s analysis rejecting Petitioner’s ineffective assistance at
sentencing claims, Petitioner cannot show “actual prejudice,” nor does he allege
that he is “actually innocent” of the two prior felony drug convictions that
resulted in his § 851 enhancement. Indeed, at sentencing, he expressly agreed that
he had been so convicted. (See Doc. 198 at pp. 2-4).
Rather, Petitioner has made a “legally innocent” argument relating to the
“finality” of such convictions for purposes of the enhancement. In a case
analytically indistinguishable from the present argument, the Eleventh Circuit
recently held that a claim that a defendant was “innocent” of being a career
offender because a predicate offense had been held to no longer serve as a
qualifying predicate failed to meet the actual innocence exception because

38

“innocence” must be factual, not legal, innocence. McKay v. United States, 657
F.3d 1190 (11th Cir. 2011). In McKay, the Eleventh Circuit said:
Just like the movant in Pettiford, McKay makes the purely legal argument
that he is actually innocent of his career offender sentence because his
prior conviction for carrying a concealed weapon should not have been
classified as a “crime of violence” under the Guidelines. McKay does not
even suggest, because he cannot, that he did not actually commit the crime
of carrying a concealed weapon. In other words, he makes no claim of
factual innocence of the predicate offense. No circuit court has held that
the actual innocence exception is available for claims of purely legal
innocence, like McKay's, and we refuse to do so as well.
Id. at 1199 (emphasis in original). In accord with McKay, Petitioner’s “legal
innocence” claims, even if they were correct (and this court has found that they
are not), do not arise to the level of a miscarriage of justice.
The court has rejected Petitioner’s claims of ineffective assistance of
counsel claims. All of his other sentencing claims are thus procedurally
defaulted.16,17
EVIDENTIARY HEARING
No evidentiary hearing is needed because Petitioner's claims are due to be
16

Petitioner makes no claim of ineffective assistance based on failure to take an appeal of
his conviction and/or sentence.
17

Claims of ineffective assistance of counsel generally may not be raised for the first time
on direct appeal, but rather through a § 2255 Petition. See Lynn v. United States, 365 F.3d 1225,
1234 n. 17 (11th Cir. 2004) (ineffective assistance claims should be decided in section 2255
proceedings). Further, the procedural default rule does not apply to Sixth Amendment claims of
ineffective assistance of counsel that are brought for the first time in § 2255 proceedings.
Massaro, 538 U.S. at 509.
39

denied as a matter of law and are affirmatively contradicted by the record. Aron v.
United States, 291 F.3d 708, 715 (11th Cir. 2002). Petitioner's claims are also
otherwise capable of resolution based on the existing record, without reference to
the Affidavit of his trial counsel. Schultz v. Wainwright, 701 F.2d 900, 901 (11th
Cir. 1983). An evidentiary hearing is also unnecessary because Petitioner's claims
are “merely conclusory allegations unsupported by specifics or contentions that in
the face of the record are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551,
1559 (11th Cir.1991); see also Lynn, 365 F.3d at 1239; Chandler v. McDonough,
471 F.3d 1360, 1363 (11th Cir. 2006) (§ 2254 case citing “clear precedent” that
conclusory allegations “are not enough to warrant an evidentiary hearing in the
absence of any specific factual proffer or evidentiary support.”). “[I]f the
petitioner's allegations are affirmatively contradicted by the record, or the claims
are patently frivolous, a district court is not required to hold an evidentiary
hearing.” United States v. Bejacmar, 217 F. App’x 919, 921 (11th Cir. 2007)
(unpublished) (citing Aron, 291 F.3d at 715).
CERTIFICATE OF APPEALABLITY
Pursuant to Rule 11(a) of the Rules Governing 2255 Proceedings, the court
finds that a certificate of appealability (“COA”) in this case is not well-founded,
and any application for one is due to be denied. 28 U.S.C. foll. 2255, Rule 11(a)

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(“The district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.”). The habeas corpus statute makes clear
that an applicant is entitled to appeal a district court's denial of his habeas corpus
petition only where a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where “the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2243(c)(2); Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.
1997). This standard is “materially identical” to that governing certificates of
probable cause under the former 28 U.S.C. § 2253. Hardwick, 126 F.3d at 1313.
In the context of certificates of probable cause, the Supreme Court defined the
requirement of “a substantial showing of the denial of a federal right” to mean
that the applicant must raise an issue that is debatable among jurists of reason.
Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090
(1983).
“In requiring a ‘question of some substance,’ or a ‘substantial showing of
the denial of [a] federal right,’ obviously the petitioner need not show that he
should prevail on the merits . . . Rather, he must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are ‘adequate to deserve encouragement

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to proceed further.’” Id. (citations omitted). More recently, the Supreme Court
echoed this interpretation in the context of a COA, opining that § 2253's
“substantial showing” requirement means that a petitioner 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.” Slack v.
McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000); see
also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931
(2003) (adopting and applying Slack standard). Where a district judge rejects
constitutional claims on the merits, the petitioner must demonstrate “that
reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong.” Miller-El, 537 U.S. at 338.
The undersigned finds that Petitioner’s arguments do not meet the
standards outlined in § 2253(c)(2) and Slack for issuance of a COA. It is the
conclusion of this court that reasonable jurists could not debate whether
Petitioner’s § 2255 petition should have been resolved in a different manner.
Petitioner has not shown ineffective assistance of counsel at the plea or
sentencing stages. All of his other claims are waived and alternatively are
procedurally defaulted. Accordingly, Petitioner's asserted grounds for relief are

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wholly inadequate to deserve encouragement to proceed further, and cannot merit
issuance of a COA.
Therefore, Petitioner may not take an appeal in forma pauperis, nor will he be
granted a certificate of appealability in connection with same.
DONE this the 9th day of July, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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