Gunter v. United States of America
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/16/17. (SAC )
2017 Feb-16 AM 11:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KEITH D. GUNTER
UNITED STATES OF AMERICA
Case No. 5:14-cv-08001-KOB
On December 12, 2011, Keith D. Gunter pled guilty to three counts of wire fraud under
18 U.S.C. § 1343 and three counts of mail fraud under 18 U.S.C. § 1341, pursuant to a plea
agreement with the Government. This case is before the court on Gunter’s motion to vacate, set
aside or correct his sentence, pursuant to 28 U.S.C. § 2255.1 (Civ. Doc. 1).2
In his § 2255 motion, Gunter asserts four grounds why this court should vacate his
sentence. (Civ. Doc. 1). Specifically, Gunter asserts that (1) his counsel was ineffective for
failing to apprise Gunter of his time limits for appealing to the United States Supreme Court; (2)
his counsel was ineffective because he “convinced [Gunter] to plead guilty because [his attorney]
said” his federal and state sentences “would [run] together”; (3) his plea was involuntary because
A prisoner “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 . . . may move the court . . .
to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255.
Documents from Gunter’s criminal trial, case number 5:11-cr-355 are designated “Cr.
Doc. __.” Documents from Gunter’s § 2255 action, case number 5:14-cv-08001-KOB, are
designated “Cv. Doc. __.”
he did not understand the “nature of the charge and the consequences of the plea”; and (4) the
court improperly considered his prior armed robbery conviction from 1980, which was “beyond
the 15 year limit,” at sentencing. (Cv. Doc. 1). In his “Response to the Government[’]s Answer,”
Gunter seems to add an additional ineffective assistance of counsel claim, alleging that his
counsel did not discuss with Gunter any appeal strategy prior to filing the direct appeal to the
Eleventh Circuit; did not show him the appeal before it was filed; and “left out” some “key
issues” on direct appeal.
The court has interpreted Gunter’s claims liberally because he is not represented by
counsel in this action. See Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000) (“Pro
se filings, including those submitted by [the petitioner] in the present case, are entitled to liberal
construction.”). After reviewing Gunter’s motion to vacate, the court finds that his arguments
lack merit. Accordingly, the court DENIES Gunter’s motion to vacate, set aside, or correct his
In 2006 and 2007, Gunter conducted numerous fraudulent real estate transactions by
placing for auction on EBay different real estate properties that he did not own and accepting
substantial amounts of money from individuals who thought they were purchasing the advertised
properties. Those victims wired or mailed money to Gunter as down payments for the properties,
and Gunter eventually stopped communicating with the victims when he could not deliver the
deeds to the properties because he did not own them. Gunter continued his fraudulent real estate
scheme even after he was arrested in Illinois on an unrelated charge. All in all, Gunter defrauded
18 victims out of more than $239,000.00. (Cr. Docs. 12 & 31).
In 2011, the Government indicted Gunter for three counts of wire fraud and three counts
of mail fraud related to his fraudulent real estate schemes (Cr. Doc. 1), and he pled guilty to all
six Counts of the Indictment pursuant to a plea agreement with the Government on December 12,
2011. (Cr. Doc. 31). The court sentenced Gunter to sixty months imprisonment on each count, to
be served concurrently with each other, and with any “yet-to-be imposed sentence in Cook
County (IL) Circuit Court Case no. 11C220078-01.” (Cr. Doc. 21).3
On May 2, 2012, Gunter’s counsel Robert Tuten filed a Notice of Appeal to the Eleventh
Circuit. On appeal, his counsel contested Gunter’s sentence as both procedurally and
substantively unreasonable, but the Eleventh Circuit affirmed Gunter’s sentence on February 25,
2013. (Cr. Docs. 25 & 35).
On December 2, 2013,4 Gunter filed the instant action to vacate, set aside, or correct his
sentence pursuant to § 2255. (Cv. Doc. 1). After a preliminary review of Gunter’s motion, the
court ordered the government to show cause why the court should not grant Gunter’s motion.
(Cv. Doc. 2). The government responded on March 25, 2014, arguing that the court should
summarily deny all of Gunter’s claims as either without merit or procedurally defaulted. (Cv.
Doc. 6). On April 8, 2014, the court found the case ready for summary disposition and ordered
Gunter to submit any additional evidence within twenty one days. (Cv. Doc. 7 ). Gunter filed a
reply to the government’s response on May 22, 2014. (Cv. Doc. 10). This matter is ripe for
The court entered an “Order Correcting Clerical Error in Amended Judgment” on
February 23, 2015, amending his sentence to fifty-four months and eleven days. (Cr. Doc. 42).
See also (Cr. Docs. 39 & 40) (explaining the reason for the Amended Judgment involved
correcting an error in the record arising from oversight).
Pursuant to the prisoner “mailbox rule,” the court deems the petition filed the date the
petitioner signed it and purportedly delivered it to prison officials.
Gunter asserts five grounds in support of his § 2255. As discussed below, his three
ineffective assistance of counsel claims lack merit, and his claims involving his alleged
involuntary plea of guilty and the court’s consideration of his 1980 armed robbery conviction
during sentencing are procedurally defaulted, or in the alternative, lack merit.
Ineffective Assistance of Counsel Claims
The Sixth Amendment gives criminal defendants the right to effective assistance of
counsel. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 684 (1984). To
prevail on a claim of ineffective assistance of counsel, Gunter 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. See Strickland, 466 U.S. at 684-91.
Deficient performance exists when counsel acts “outside the wide range of professionally
competent assistance.” Id. at 690. “The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would have done.” Waters v. Thomas, 46
F.3d 1506, 1512 (11th Cir. 1995) (en banc). The only question is “whether some reasonable
lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” Id.
Counsel is presumed to have acted reasonably. Strickland, 466 U.S. at 690. A reviewing
court “must indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonably professional assistance.” Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990).
A petitioner shows prejudice if “a reasonable probability [exists] that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. Gunter must show more than “that the error had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Rather, he must show that “absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Id.
Counsel was ineffective because he “convinced [Gunter] to plead guilty
because [his attorney] said” his federal and state sentences “would [run]
Gunter claims that his attorney Robert Tuten, who represented him during the
arraignment, plea, sentencing, and appeal to the Eleventh Circuit, was ineffective because he told
Gunter that his federal and state sentences would run concurrently with each other, when in fact
they did not. (Doc. 1). However, in his “Response to Government’s Answer,” Gunter admits
that he “did finally confirm with the F.B.O.P. Records Dept. Dated on 3-11-14 that the sentence
was in fact ran [sic] concurrent” with his state case, and Gunter seems to abandon this ground.
(Doc. 10 at 3). Such confirmation aligns with the sentence the court actually imposed.
The court originally sentenced Gunter to sixty months imprisonment “as to Counts One
through Six, separately, with each Count to be served concurrently with each other, and
concurrently with any yet-to-be imposed sentenced in Cook County (IL) Circuit Court Case no.
11C220078-01.” (Cr. Doc. 21). Mr. Tuten could not be ineffective for any correct statements he
told Gunter about the sentences running concurrently. Therefore, his claim on this ground must
Counsel was ineffective for failing to discuss with Gunter any appeal strategy
prior to filing the direct appeal to the Eleventh Circuit; did not show him the
appeal before it was filed; and “left out” some “key issues” on direct appeal.
Gunter admits that Mr. Tuten did file a direct appeal to the Eleventh Circuit on his behalf,
but claims that Mr. Tuten did not consult with Gunter about the substance of the appeal before
Mr. Tuten filed it, and that Mr. Tuten “left out” some “key issues.” However, none of these
grounds constitutes ineffective assistance of counsel by Mr. Tuten.
Gunter entered into a plea agreement with the Government that contained a “Waiver of
Right to Appeal and Post-Conviction Relief.” (Doc. 12 at 13-14). During the plea colloquy, the
court specifically asked Mr. Gunter if he understood that he was giving up some or all of his
rights to appeal his conviction directly or collaterally. Mr. Gunter indicated that he did
understand that appeal waiver. (Doc. 31 at 13). In this habeas action, Gunter does not attack the
appeal waiver itself nor claim that he did not understand that waiver.
That appeal waiver limited the issues Mr. Tuten could raise on direct appeal to any
“sentence imposed in excess of the applicable statutory maximum sentence(s)” or “any sentence
imposed in excess of the guideline sentencing range determined by the court at the time sentence
is imposed.” (Doc. 12 at 14). Because the court varied upward from the sentencing guideline
range, Mr. Tuten appealed Gunter’s sentence as both procedurally and substantively
unreasonable, but the Eleventh Circuit affirmed Gunter’s sentence.
Gunter does not identify specifically what “key issues” Mr. Tuten “left out” of the appeal.
Conclusory or unsupported allegations cannot support an ineffective assistance of counsel claim.
See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (finding “unsupported allegations,
conclusory in nature and lacking factual substantiation” to be an insufficient basis for relief).
Moreover, Gunter fails to explain any other nonfrivolous issues that Mr. Tuten could have raised
on direct appeal given Gunter’s plea of guilty and his appeal waiver. The court finds that Mr.
Tuten’s actions in appealing only those issues not barred by the appeal waiver were reasonable
and did not violate Strickland.
Because Mr. Tuten was limited in what he could raise on direct appeal on Gunter’s
behalf, his failure to talk to Gunter before filing the appeal was not unreasonable. Mr. Tuten filed
a direct appeal on Gunter’s behalf and raised the only issues any reasonable attorney would have
raised given the appeal waiver. Gunter fails to show how talking to Mr. Tuten before filing the
appeal would have changed anything regarding the issues Mr. Tuten raised or could have raised
on direct appeal. Gunter also fails to show how Mr. Tuten’s failure to simply discuss with
Gunter which issues he planned to appeal prejudiced him in any way. Gunter failed to prove
either prong of Strickland on this ground, and the court finds that this ground lacks merit.
Counsel was ineffective for failure to apprise Gunter of his time limits for
appealing to the United States Supreme Court.
Gunter claims that Mr. Tuten provided ineffective assistance of counsel because he did
not tell Gunter of the time limits to file a writ of certiorari to the United States Supreme Court,
and as a result, he “ran out of time to do so” and was denied his right to appeal to that Court.5
(Doc. 1 at 6). Gunter’s claim lacks merit.
Gunter has “no right under the Sixth Amendment to counsel to pursue a discretionary
application for review in the Supreme Court.” Richards v. United States, 406 F. App’x 447 (11th
Cir. 2010) (citing Ross v. Moffitt, 417 U.S. 600, 616-18 (1974)). Therefore, the court cannot find
that Mr. Tuten acted ineffectively for failing to file a petition for a writ of certiorari, much less
for failing to tell Gunter of the time limits to do so. See Richards, 406 F. App’x at 447 (citing
Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)).
Gunter also claims that “the clerk of court” failed to apprise him of this time limit, but
the court will only address his ineffective assistance of counsel claim as it relates to his counsel,
Moreover, even if Gunter could bring an ineffective assistance of counsel regarding his
failure to appeal to the Supreme Court, Gunter’s claims regarding this ground are conclusory
with no factual support. See Tejada, 941 F.2d at 1559. After the Eleventh Circuit affirmed
Gunter’s sentence, he wrote a letter to Mr. Tuten asking him “Is there someone higher than this
that we can appeal to?” (Doc. 10 at 11). In response, Mr. Tuten wrote Gunter a letter explaining
that Gunter could appeal to the Supreme Court, but that he would not have “appointed counsel
for any further appeal efforts, so [Gunter would] have to retain someone to help [him] . . . .” Mr.
Tuten also explained that he would charge $25,000 to handle such an appeal, and that, if Gunter
could “raise the funds,” he would “think about” taking his case. However, Mr. Tuten explained
to Gunter in the letter that his guilty plea and waiver of most of his appellate rights would make
any further appeal “even harder.” (Id. at 12).
Gunter does not allege that after Mr. Tuten’s response he asked Mr. Tuten to represent
him; that he inquired about the time limitations to apply for a writ of certiorari; which issues he
would have raised in a writ or his likelihood of success on those issues; or that he was prejudiced
by not pursuing a writ. Because Gunter fails to establish either prong of Strickland, his motion is
due to be denied on this ground.
Procedurally Defaulted Claims
In addition to his claims for ineffective assistance of counsel, Gunter also asserts claims
involving the voluntariness of his plea and the court’s consideration of his 1980 armed robbery
conviction during sentencing. As noted below, both of these grounds for relief are procedurally
defaulted, or in the alternative, without merit.
The procedural default doctrine reflects the general rule that the district court need not
reconsider issues raised in a habeas action that the Eleventh Circuit resolved on direct appeal.
United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). Moreover, a petitioner cannot
raise issues in a collateral habeas proceeding that he could have but failed to raise on direct
appeal. See Massaro v. United States, 123 S. Ct. 1690, 1693 (2003); Lynn v. United States, 365
F.3d 1225, 1234 (11th Cir. 2004).
Generally, federal courts will not review a procedurally defaulted claim unless the
defendant can show either (1) cause for the default and actual prejudice from the error, or (2) that
the court’s failure to consider the claim will result in a miscarriage of justice because the
defendant is actually innocent. See Bousley v. United States, 523 U.S. 614, 622 (1998); Lynn, 365
F.3d at 1234.
Gunter did not understand the nature of the charges against him or the
consequences of his plea.
Gunter claims that he would never have pled guilty if he had not been “reassured
countless times” that his sentence would be between thirty-three and forty-one months. He
claims that he would “still be fighting this case if [he] knew [he] was going to be sentencing to
90 months.” (Doc. 1 at 7). Gunter seems to argue that he unknowingly entered his plea of guilty
because he thought his sentence would be lower. However, in his reply to the Government’s
response, Gunter indicated that “his argument is not the guilty plea, but the sentence above the
P.S.I. Guidelines.” (Doc. 10 at 3).
To the extent that Gunter argues that he did not knowingly enter his plea because he did
not understand the consequences of pleading guilty, that claim is procedurally defaulted because
he did not raise it on direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998)
(“And even voluntariness and intelligence of a guilty plea can be attacked on collateral review
only if first challenged on direct review.”).
“A meritorious claim of ineffective assistance of counsel can constitute cause” to
overcome procedural default. Nyhuis, 211 F.3d at 1344. However, Gunter has failed to prove
that Mr. Tuten provided ineffective assistance of counsel under either prong of Strickland
regarding his plea or his sentence. The plea colloquy in the record directly refutes any claim that
Gunter did not understand the charges against him, the consequences of his plea, or the sentence
the court could impose. Furthermore, the plea colloquy reflects that Mr. Tuten explained the
consequences of Gunter’s plea to him and answered to the best of his ability any questions that
Gunter had about the plea of guilty. Not only is this claim procedurally defaulted, but it is also
Gunter claims that he was “reassured countless times” that the court would sentence him
to thirty-three to forty-one months. However, during his extensive plea colloquy, the court
questioned both Gunter and his counsel regarding the plea agreement, the consequences of
Gunter’s plea of guilty, and any questions Gunter had regarding his plea or his possible sentence.
Mr. Tuten, when asked if had “sufficient opportunity to discuss [the plea agreement] with Mr.
Gunter,” indicated that he was able to answer all of Gunter’s questions about the plea agreement
[T]here was that one burning question that every defendant wants to know
that I could not anser for him and that is, how much time am I going to get for
And we discussed the statutory range of punishment and the operation of
the sentencing guidelines and how those guidelines are likely to apply to this case.
And I gave him several estimates of what a potential sentence might be.
Of course, that is all I can do at this point.
(Cr. Doc. 31 at 12). Gunter did not contest this statement of his counsel during the plea hearing.
Not only did Mr. Tuten indicate to the court at the plea hearing that he did not promise
Gunter that his sentence would be thirty-three to forty-one months, the court also made clear to
Gunter at the plea hearing that it could impose a sentence “different from any estimate or
prediction about the guideline sentence that anyone, including [his] attorney, may have provided”
to him. (Cr. Doc. 31 at 18). The court further explained to Gunter that it could impose a
sentence “substantially more severe” than what he and the Government agreed to in the plea
agreement.6 (Cr. Doc. 31 at 14-15). To make clear the consequence of entering his plea and the
possible sentence it could impose, the court told Gunter that a “sentence higher than estimated or
expected would not be grounds for setting aside” his plea. (Cr. Doc. 31 at 18). Despite all these
assurances at the plea hearing that his plea could be higher than the estimate agreed to in the plea
agreement, Gunter chose to plead guilty anyway. Gunter’s choice to plead guilty, knowing that
Mr. Tuten could not give him assurances as to his definite sentence term, does not constitute
ineffective assistance of counsel on Mr. Tuten’s part.
Gunter has demonstrated neither prong of Strickland on this ground and, thus, failed to
show cause for the procedural default. Likewise, Gunter has shown no prejudice from any
alleged error nor has he alleged that he is actually innocent. Further, given the conclusory nature
of Gunter's claim and the extensive plea colloquy refuting his claims regarding assurances that
Interestingly, Gunter points out that “every court room in the State of Illinois says the
same thing, do you understand that you can be sentenced to more time than what has been agreed
upon by you and the state attorney . . . .” Then Gunter notes that despite that warning the judge
always sentences a defendant to what the parties agreed upon. He claims that in this case the fact
that the sentence could be above the agreed upon guideline range was never discussed. (Cv. Doc.
10 at 4). However, the plea colloquy in this case demonstrates differently. (Cr. Doc. 31).
his sentence would be between thirty-three and forty-one months, the court finds that applying
the procedural default doctrine would not result in a miscarriage of justice. See Bousley, 523 U.S.
at 622; Frady, 456 U.S. at 167. Gunter's claim on this ground is procedurally defaulted, or in the
alternative, without merit.
2. The court improperly considered his prior conviction for armed robbery.
Gunter claims that the court erred when it considered during sentencing “a previous state
armed conviction of Armed Robbery from 1980 which is well beyond the 15 year limit.” (Doc. 1
at 7). During sentencing, the court adopted the Pre-sentence Report of the Probation Office
without objection and found the advisory guideline range for Gunter’s crimes to be thirty-three to
forty-one months. (Doc. 32 at 5). However, considering the factors in 18 U.S.C. § 3553(a), the
court found that advisory guideline range was insufficient and varied upward from that range,
sentencing Gunter to sixty months on each count, all to be served concurrently. (Doc. 32 at 1114).
One factor that the court considered in varying upward from the advisory guideline range
was that Gunter’s criminal history category of three underrepresented his “true criminal history
. . . because the armed robbery that he committed many years ago w[as] not counted because of
[its] age.” Gunter seems to argue that the court’s consideration of his robbery conviction as a
factor in varying upward was error.
The Eleventh Circuit, in finding that this court provided a “sufficiently compelling
justification for its upward variance,” stated that this court properly considered Mr. Gunter’s
“armed robbery conviction [that] was not counted towards his criminal history score.” (Cr. Doc.
35 at 5). To the extent that the Eleventh Circuit found that this court correctly considered the
outdated armed robbery convictions as a factor in varying upward, this ground is procedurally
barred. See Nyhuis, 211 F.3d at 1343 (the court should not reconsider issues already decided by
the Eleventh Circuit). To the extent that Gunter failed to raise this specific issue on direct
appeal, this ground is procedurally defaulted, and no exceptions apply. See Lynn, 365 F.3d at
1234 (a claim is procedurally barred if a defendant failed to raise it first on direct appeal).
Even if this ground is not procedurally defaulted, it lacks merit. “As grounds for a §
4A1.3 [upward] departure, the guidelines permit the sentencing court to consider outdated
convictions that are dissimilar, but ‘serious.’” United States v. Lopez-Velasquez, 379 F. App’x
954, 955 (11th Cir. 2010) (citing U.S.S.G. § 4A1.2, comment (n.8)). The court correctly
considered Gunter’s outdated armed robbery conviction as a factor is deciding to vary his
sentence upward from the advisory guideline range.
Gunter's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255
lacks merit. Gunter has failed to establish that he is entitled to a new trial or any other relief.
Therefore, the court DENIES the motion.
DONE and ORDERED this 16th day of February, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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