Williams v. United States of America

Filing 26

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment and close the file. The Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 1/23/2018. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

LEOTIS WILLIAMS,
Petitioner,
vs.

Case No.:

3:14-cv-1279-J-34JRK
3:13-cr-6-J-34JRK

UNITED STATES OF AMERICA,
Respondent.
___________________________________/
ORDER
This case is before the Court on Petitioner Leotis Williams’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate).1 The
United States has responded (Civ. Doc. 4, Response), and Williams has replied (Civ. Doc.
5, Reply).
Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255
Proceedings2, the Court has considered the need for an evidentiary hearing and
determines that an evidentiary hearing is not necessary to resolve the merits of this action.
See Aron v. United States, 291 F.3d 708, 714–15 (11th Cir. 2002) (an evidentiary hearing
on a § 2255 petition is not required when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that

1

Citations to the record in the underlying criminal case, United States vs. Leotis Williams,
Case No. 3:13-cr-6-J-34JRK, will be denoted as “Crim. Doc. __.” Citations to the record in the civil
§ 2255 case, Case No. 3:14-cv-1279-J-34JRK, will be denoted as “Civ. Doc. __.”
2

Rule 8(a) of the Rules Governing Section 2255 Proceedings expressly requires the Court
to review the record, including any transcripts and submitted materials, to determine whether an
evidentiary hearing is warranted before deciding on a § 2255 motion.
1 

he alleges are true, he still would not be entitled to any relief); Holmes v. United States,
876 F.2d 1545, 1553 (11th Cir. 1989) (a petitioner’s ineffective assistance claim can be
dismissed without an evidentiary hearing when the petitioner alleges facts that, even if
true, would not entitle him to relief); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.
1982) (“On habeas a federal district court need not conduct an evidentiary hearing if it can
be conclusively determined from the record that the petitioner was not denied effective
assistance of counsel.”); Patel v. United States, 252 F. App’x 970, 975 (11th Cir. 2007).3
For the reasons set forth below, Williams’s Motion to Vacate is due to be denied.
I.

Background
On September 25, 2012, Williams sold approximately two ounces of cocaine to a

confidential informant named Alvin Williams (“the informant”), who was working at the time
for the Fernandina Beach Police Department under a deferred arrest agreement. (See
Crim. Doc. 99, Trial Transcript Volume II at 36-37, 52, 54-56). Three days later, on
September 28, 2012, Williams sold three “cookies” of crack cocaine to the same informant.
See id. at 60-61. The police arrested Williams shortly after the second transaction. Both
controlled purchases were audio- and video-recorded. See id. at 38-41, 61-62.
On August 1, 2013, a grand jury sitting in the Middle District of Florida indicted
Williams on one count of distributing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C), and one count of distributing crack cocaine, in violation of 21 U.S.C. §§

3

Although the Court does not rely on unpublished opinions as precedent, they may be cited
throughout this Order as persuasive authority on a particular point. Rule 32.1 of the Federal Rules
of Appellate Procedure expressly permits the Court to cite to unpublished opinions that have been
issued on or after January 1, 2007. Fed. R. App. P. 32.1(a).

2

841(a)(1) and 841(b)(1)(C). (Crim. Doc. 37, Superseding Indictment). Williams pled not
guilty and proceeded to a jury trial.
At trial, the United States introduced the testimony of the informant, the informant’s
handler (Sergeant Matthew Bowen), as well as audio and video recordings of the
controlled purchases, along with other evidence. The informant described how he came to
work for the police under a deferred arrest agreement and how the controlled purchases
with Williams transpired. Trial Tr. Vol. II at 34-81. The informant described purchasing two
one-ounce bags of cocaine from Williams on September 25, 2012, as well as purchasing
three crack cocaine “cookies” from Williams on September 28, 2012. Id. at 53-60, 60-61.
Still-shots from the video recordings of the transactions depicted Williams himself, id. at
58-60, two one-ounce bags of cocaine, id. at 54-56, three “cookies” of crack cocaine, id.
at 68-69, and Williams counting the money from the sale, id. at 69-71. Additionally, audio
from the September 25 transaction captured Williams and the informant discussing the
need to get a “bench,” or a scale, to weigh the drugs. Id. at 53, 111-12. Audio from that
same transaction further captured Williams and the informant negotiating a price for the
cocaine. Id. at 113-14.
The jury deliberated for a little over an hour before returning a guilty verdict on both
counts. Id. at 199-200. The Court sentenced Williams to concurrent terms of 120 months
in prison as to each count, followed by a three-year term of supervised release. (Crim.
Doc.

87,

Judgment).

Williams

appealed

the

judgment,

challenging

only

the

reasonableness of his sentence. United States v. Williams, 573 F. App’x 912, 912 (11th
Cir. 2014). The Eleventh Circuit rejected Williams’s argument, concluding that “[t]he district
court did not abuse its discretion by sentencing Williams to a term of imprisonment far

3

below his advisory guideline range,” which had been 210 to 262 months in prison. Id. at
912-13. After the Eleventh Circuit affirmed Williams’s conviction and sentence, he did not
petition the Supreme Court for certiorari review.
II.

Williams’s Motion to Vacate
On October 15, 2014, Williams timely filed the instant Motion to Vacate. In Ground

One, Williams contends that the Court lacked subject matter jurisdiction because (1)
Sergeant Bowen represented himself to be a member of the Fernandina Beach Police
Department rather than the Drug Enforcement Administration (DEA); (2) the controlled
purchases were operated and funded by the Fernandina Beach Police Department; and
(3) Williams’s activities involved only intrastate commerce. Motion to Vacate at 4. In
Ground Two, Williams claims that counsel gave ineffective assistance by (1) failing to
advise the Court that the defense had not received all of the discovery, (2) failing to object
to the lack of subject matter jurisdiction, and (3) failing to object to alleged Brady4
violations. Id. at 5. In Ground Three, Williams alleges two types of prosecutorial
misconduct: (1) that the prosecution violated Brady by withholding “ordered information,”
including video and audio recordings, and (2) that the prosecution misrepresented the
existence of the Court’s jurisdiction. Id. at 7. In Ground Four, Williams claims that he is
actually innocent because “the government lacked authority to prosecute.” Id. at 8.
On May 9, 2016, Williams moved to amend his Motion to Vacate. (Civ. Doc. 6,
Motion to Amend). In the Motion to Amend, Williams added a claim that he was improperly
classified as a career offender under § 4B1.1 of the United States Sentencing Guidelines.

4

Brady v. Maryland, 373 U.S. 83 (1963) (the prosecution has a duty to disclose exculpatory
evidence).

4

Williams claims that § 4B1.2’s “residual clause” is unconstitutionally vague in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), and as such, that his career offender
classification is unlawful.
III.

Discussion
Pursuant to Title 28, United States Code, Section 2255, a person in federal custody

may move to vacate, set aside, or correct his sentence. Section 2255 permits such
collateral challenges on four specific grounds: (1) the imposed sentence was in violation
of the Constitution or laws of the United States; (2) the court did not have jurisdiction to
impose the sentence; (3) the imposed sentence exceeded the maximum authorized by
law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C
§2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that
are so fundamentally defective as to cause a complete miscarriage of justice will warrant
relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979).
A petitioner’s challenge to his sentence based on a Sixth Amendment claim of ineffective
assistance of counsel is normally considered in a collateral attack. United States v.
Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).
A. Ground One: Lack of Jurisdiction
Williams’s first claim is that the Court lacked subject matter jurisdiction, essentially
because a local police department rather than the DEA conducted the investigation that
led to his arrest, and because his activities involved only intrastate commerce. This claim
lacks merit.
It does not matter that local law enforcement officers, rather than the DEA,
spearheaded the investigation that led to the charges against Williams. “The district courts

5

of the United States have original and exclusive jurisdiction over ‘all offenses against the
laws of the United States.’” United States v. Peter, 310 F.3d 709, 713 (11th Cir. 2002)
(quoting 18 U.S.C. § 3231); see also U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall
extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under their Authority…”). Thus,
so long as an indictment charges the defendant with violating the “laws of the United
States,” that is enough to vest subject-matter jurisdiction in a federal court. United States
v. Brown, 752 F.3d 1344, 1348 (11th Cir. 2014) (citing Alikhani v. United States, 200 F.3d
732, 734 (11th Cir. 2000)). While a defective indictment could strip a federal court of
subject-matter jurisdiction, it does so if it charges (1) a crime that simply did not exist in
the United States Code, (2) conduct that undoubtedly fell outside the sweep of the criminal
statute, or (3) a violation of a regulation that was not intended to be a “law” for the purpose
of criminal liability. Brown, 752 F.3d at 1353 (internal citations omitted). None of these
exceptions applies here. The grand jury charged Williams with violating 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C) – a federal criminal statute – for distributing cocaine and crack
cocaine. Superseding Indictment at 1-2. Section 841 makes it a crime “to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance,” 21 U.S.C. § 841(a)(1), which substances include cocaine and its
salts and isomers, id. at § 812, Schedule II(a)(4). Thus, the grand jury indicted Williams for
conduct that fell within the sweep of a federal criminal statute. As such, this Court had
jurisdiction over Williams’s criminal charges.
Williams’s claim that the Court lacked jurisdiction because his drug activities
involved only intrastate commerce is also mistaken. For violations of the Controlled

6

Substances Act (CSA), such as those charged here, it is not necessary for the drugs or
the persons dealing those drugs to cross state lines. The Supreme Court has held
unequivocally that the CSA is a proper exercise of Congress' authority to regulate
interstate commerce even when it is applied to local activities. Gonzales v. Raich, 545 U.S.
1 (2005). In Raich, the Court explained that Congress could lawfully regulate the intrastate
cultivation of marijuana—even for purely personal consumption—because the cumulative
impact of such production substantially affects the interstate market for the drug. Id. at 17–
20, 22. Raich’s rationale applies with equal force to distributing cocaine. See United States
v. Wilson, 238 F. App’x 571, 572-73 (11th Cir. 2007) (rejecting Commerce Clause
challenge to conviction for conspiracy to possess crack cocaine with intent to distribute);
United States v. Peterson, 194 F. App’x 786, 788 (11th Cir. 2006) (rejecting Commerce
Clause challenge to a conviction for “a local street-corner sale” of cocaine base). It does
not matter that Williams’s particular activities may have been confined to Florida, because
Congress has the “power to regulate purely local activities that are part of an economic
class of activities that have a substantial effect on interstate commerce.” Raich, 545 U.S.
at 17. Accordingly, Williams’s argument that the Court lacked jurisdiction because his
conduct did not implicate interstate commerce lacks merit.5 Relief on Ground One is due
to be denied.

5

Williams cites in passing to 28 U.S.C. §§ 509, 510, and 533 (which concern the functions
of the Attorney General), but he offers no argument explaining how these pertain to Ground One.
Accordingly, the Court does not address them. See Towbridge v. Tacker, 488 F. App’x 402, 404
(11th Cir. 2012) (citing Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998)) (“Issues
raised only in passing, without supporting argument or citation, are abandoned.”).

7

B. Ground Three: Prosecutorial Misconduct
For ease of discussion, the Court addresses Ground Three before addressing
Ground Two. In Ground Three, Williams alleges two types of prosecutorial misconduct.
First, he claims that the prosecution violated Brady by withholding evidence that it had
been ordered to disclose, including video and audio recordings. Motion to Vacate at 7.
Second, he claims that the prosecution “knowingly and deliberately” misrepresented the
existence of subject matter jurisdiction. Id. Neither claim has merit.
The government has a constitutional obligation to disclose exculpatory evidence in
its possession to a defendant. Brady, 373 U.S. at 87. The elements of a Brady violation
are: (1) that the prosecution possessed evidence favorable to the defendant; (2) that the
defendant did not possess the evidence nor could he have obtained it himself with any
reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4)
that had the evidence been disclosed to the defense, a reasonable probability exists that
the outcome of the proceedings would have been different. United States v. Bailey, 123
F.3d 1381, 1397 (11th Cir. 1997).
With respect to the alleged Brady violation, Williams’s claim is vague and
conclusory, consisting of a total of 33 words:
Petitioner concedes [sic] that Prosecution: 1. withheld important ordered
information: video, audio etc. from the jury and court in order to get a
conviction, thus constituting a clear miscarriage of justice and a Brady
violation.
Motion to Vacate at 7. That’s all Williams says. Notably, Williams asserts only that the
prosecution withheld the evidence from the jury and the Court, not from him. Moreover,
Williams does not identify the evidence, explain how the allegedly suppressed audio or
video tapes were favorable to him, or how there is a reasonable probability that such

8

evidence would have persuaded the jury to acquit him. The claim is too vague and
conclusory to warrant an evidentiary hearing, let alone relief on the merits. See Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (a petitioner is not entitled to an evidentiary
hearing when his claims are merely conclusory allegations unsupported by specifics).
Nevertheless, the record refutes Williams’s conclusory allegation of a Brady
violation. Following trial, the Court held a “status of counsel hearing” (see Crim. Doc. 113,
Civ. Doc. 4-1, Hearing Transcript) to address a pro se letter Williams had written the Court
(Crim. Doc. 78, Pro Se Letter). Williams asked that his trial counsel, Charles Truncale, be
fired and replaced with another lawyer. Id. At the hearing, Williams aired his grievances
with counsel and the prosecution, specifically insisting that the government had withheld
impeachment evidence relating to the informant and that the video evidence was
incomplete. See Hr’g Tr. at 9-10, 13-22. However, Williams’s counsel himself stated that
“there was no Brady violation by the government.” Id. at 21. Counsel assured Williams and
the Court that the Brady material Williams thought existed did not exist, that the
prosecution had provided him with all Brady evidence he had requested, and that he had
reviewed the available evidence and used it to “severely impeach[ ]” the informant. Id. at
9-11, 22-24. The United States confirmed that before trial, counsel requested, and the
United States provided, all Brady evidence it had, including over 50 pages of law
enforcement records and reports related to the informant. Id. at 33-34. The United States
disclosed that the informant had prior convictions, pending charges, was on probation, and
was working for the Fernandina Beach Police Department under a deferred arrest
agreement. See id. Responding to Williams’s claim that the video evidence was
incomplete, the United States said that the video records of the two controlled purchases

9

“were admitted in their entirety, and then a portion was shown to the jury.” Id. at 35.
Williams’s counsel added that he did not want to play the entire videos because the unplayed portions were unhelpful and would have been confusing to the jury. Id. at 26-28,
30. Besides, counsel explained, he got the informant and Sergeant Bowen to admit on the
stand exactly what he wanted to get out of the videos, which is that the controlled
purchases were not fully monitored because the informant disappeared inside his
residence during both transactions, such that the drugs taken off the informant after the
controlled buy could have come from the informant’s residence rather than Williams. See
id. at 26-28, 30. Counsel explained that since he got the testimony he needed, he found
no need to play the entire videos. Id. at 28, 30.
After listening to Williams and the attorneys, the Court concluded that it appeared
the government had disclosed all the Brady evidence it possessed, and that trial counsel
“did everything he was supposed to do with it.” Id. at 36. The Court recognized that
Williams disagreed with counsel’s decision about what portions of the videos to play for
the jury, but noted that “it sounds like Mr. Truncale was able to make all the points he
wanted to make.” Id. at 37. The Court also noted that Williams’s counsel is an experienced
and well-respected attorney, that he appeared well prepared for trial, and that he executed
an effective strategy – even if it was not one that resulted in an acquittal. Id. at 37-38.
Notably, following this discussion, Williams stated that he had reached an understanding
with his counsel, and that after getting a chance to talk about the issues he wanted to
address, he no longer wanted to replace him. Id. at 36, 39.
The record shows that both trial counsel and the United States agreed that there
was no undisclosed Brady evidence, that counsel had requested all available Brady

10

material, and that the United States provided it to counsel. As such, to the extent Williams
attempts to assert that the United States suppressed Brady evidence, such an assertion
is no more than bare conjecture, which both his own trial counsel and the United States
denied. As such, the record refutes Williams’s unsubstantiated Brady allegations.
Insofar as Williams alleges that the prosecution “knowingly and deliberately”
misrepresented the existence of subject matter jurisdiction, this claim fails for the same
reasons as Ground One. As explained in Part III.A, supra, the Court properly had subject
matter jurisdiction over Williams’s criminal charges. As such, the prosecution did not
misrepresent the existence of subject matter jurisdiction.
In addition to the allegations above, Williams also seems to claim in his reply brief
that the government violated his due process rights by not following proper protocol in
activating the informant, who was on probation when he began working for the Fernandina
Beach Police Department under a deferred arrest agreement. See Reply at 2-5. Williams
claims, for example, that 28 U.S.C. §§ 509, 510, and 533 “preclude[ ] a government official
… from using and/or obtaining information from fugitives,” and that Sergeant Bowen failed
to obtain permission from the informant’s probation officer and state court judge before
using him as a confidential source. See id. at 2-3. Williams contends that such practices
were inconsistent with the Attorney General’s guidelines concerning the use of confidential
informants. Id. at 4.
This last argument is not properly before the Court since Williams raised it for the
first time only in his reply brief without seeking to amend his § 2255 motion. See Snyder
v. United States, 263 F. App’x 778, 779-80 (11th Cir. 2008) (district court did not err in not
addressing claim raised for the first time in a reply brief). Nevertheless, the claim has no

11

merit. The statutes Williams cites, 28 U.S.C. §§ 509, 510, and 533, say nothing about the
use of confidential informants; they merely describe the functions and powers of the
Attorney General. Moreover, law enforcement’s failure to comply with procedures for
activating an informant does not violate the due process rights of a defendant. See United
States v. Christie, 624 F.3d 558, 572-73 (3d Cir. 2010). Guidelines and procedures
regulating the use of confidential informants “do not themselves create private rights for
criminal defendants,” id. at 573 (citations omitted), nor do they “purport to be rules, much
less the limits of constitutional behavior,” id. Therefore, Williams’s claim that police failed
to follow protocol in activating the informant is not cognizable on habeas review. Addonizio,
442 U.S. at 184-86 (only jurisdictional claims, constitutional claims, and claims of error that
are so fundamentally defective as to cause a complete miscarriage of justice will warrant
relief through collateral attack). As such, relief on Ground Three is due to be denied.
C. Ground Two: Ineffective Assistance of Counsel
In Ground Two, Williams raises three claims of ineffective assistance of counsel:
(1) that counsel failed to object to or advise the Court about discovery that the defense did
not receive; (2) that counsel failed to object to the lack of subject matter jurisdiction; and
(3) that counsel failed to object to alleged Brady violations. Motion to Vacate at 5.
As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255
petitioner must demonstrate both: (1) that his counsel’s conduct amounted to
constitutionally deficient performance, and (2) that his counsel’s deficient performance
sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the petitioner
has satisfied the first requirement, i.e. that counsel performed deficiently, the Court

12

adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at 1036. The
petitioner must show, in light of all the circumstances, that counsel’s performance fell
outside the “wide range of professionally competent assistance.” Id. To satisfy the second
requirement, that counsel’s deficient performance prejudiced the defendant, the petitioner
must show that there is a reasonable probability that, but for counsel’s error, the result of
the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at
694). In determining whether a petitioner has met the two prongs of deficient performance
and prejudice, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695.
However, because both prongs are necessary, “there is no reason for a court… to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.” Id. at 697; see also Wellington v.
Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss the performance
deficiency component of [petitioner’s] ineffective assistance claim because failure to
satisfy the prejudice component is dispositive.”).
Williams’s first and third subclaims of ineffective assistance, regarding counsel’s
failure to object to undisclosed discovery and alleged Brady violations, lack merit for the
same reasons as Ground Three. As discussed in Part III.B, supra, the record refutes
Williams’s claim that the government failed to disclose required discovery or Brady
material. Williams’s bare allegation that other undisclosed evidence exists is vague and
conclusory, and as such, does not warrant relief. Tejada, 941 F.2d at 1559. The record
also reflects that counsel demanded all available Brady evidence, that counsel received it,
and that he used it to impeach the government’s informant. See Hr’g Tr. at 9-11, 22-24,
33-34. Indeed, counsel used the informant’s criminal record to attack his credibility, Trial

13

Tr. Vol. II at 81-83, he used the fact of the informant’s pending charges and the deferred
arrest agreement to suggest that the informant was motivated to testify for the prosecution
in exchange for lenience, id. at 83-91, and he attacked the informant’s trustworthiness
based on the fact that he breached his deferred arrest agreement by committing new
crimes, id. at 91-97. Thus, the record illustrates that counsel not only obtained available
Brady evidence, but that he used it to seriously impeach the informant. Moreover, with
respect to the audio-video recordings of the controlled purchases, the record reflects that
the United States offered the entirety of the videos into evidence. Hr’g Tr. at 35. However,
Williams’s counsel made a deliberate decision not to play the entire videos because doing
so would be unnecessary, unhelpful, and would likely only frustrate or confuse the jury. Id.
at 26-28, 30. Such strategic decisions about the presentation of evidence are given
significant deference. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (which
witnesses to call, if any, “is the epitome of a strategic decision, and it is one that we will
seldom, if ever, second guess.”) (citation omitted). Accordingly, the record shows that trial
counsel performed reasonably under the circumstances with respect to investigating the
evidence and preparing a trial strategy.
Moreover, even if counsel had performed deficiently regarding the investigation,
Williams never explains how there is a reasonable likelihood the outcome of the trial would
have been different. Indeed, the evidence against Williams was considerable. Not only did
the evidence include the informant’s testimony, but it also included audio-video recordings
of two controlled purchases, which depicted Williams himself, two ounces of cocaine, three
crack cocaine cookies, and Williams counting the money from the transaction. Trial Tr.
Vol. II at 54-56, 58-59, 68-69, 69-71. Williams’s own counsel stated after trial that the

14

evidence was so strong that he had advised Williams to plead guilty. Hr’g Tr. at 5. As
counsel explained, the videos “showed a person very, very, very clearly with a strong
resemblance to the defendant, Mr. Williams, counting out money, matching the
allegations” of a drug purchase in the amount of $2,000 or so. Id. at 4. In counsel’s
judgment, the video recordings were “very, very serious” and persuaded the jury to convict
Williams because their impact was “almost unrebuttable.” Id. at 11-12. Given that the
evidence of guilt was considerable, Williams has not shown that he suffered prejudice from
counsel’s allegedly inadequate pretrial investigation. See LeCroy v. Sec’y, Dep’t of Corr.,
421 F.3d 1237, 1265-66 (11th Cir. 2005) (habeas petitioner did not establish prejudice
from counsel’s failure to investigate additional evidence that his co-defendant committed
the murder where there was a “mountain of evidence” incriminating the petitioner). As
such, Williams’s first and third subclaims of ineffective assistance are due to be denied.
Williams’s second subclaim of ineffective assistance is that counsel failed to object
to the lack of subject matter jurisdiction. However, as the Court explained concerning
Ground One, the Court had subject matter jurisdiction over Williams’s case. Any objection
to the Court’s jurisdiction would have been meritless, and an attorney does not perform
deficiently by failing to raise a meritless objection. Ladd v. Jones, 864 F.2d 108, 110 (11th
Cir. 1989) (“[S]ince these claims were meritless, it was clearly not ineffective for counsel
not to pursue them.”). Therefore, relief on this ground is due to be denied as well.
D. Ground Four: Actual Innocence
In Ground Four, Williams claims that he is actually innocent because “the
government lacked authority to prosecut[e].” Motion to Vacate at 8. This claim fails for two
independent reasons. First, assuming that Williams is referring to the alleged absence of

15

subject matter jurisdiction, the claim fails because as explained regarding Ground One,
the Court did have subject matter jurisdiction. Second, Williams’s allegation is not a true
actual

innocence

claim.

“[F]or

purposes

of

the

actual

innocence

exception,

‘“actual innocence” means factual innocence, not mere legal insufficiency.’” McKay v.
United States, 657 F.3d 1190, 1197 (11th Cir. 2011) (emphasis in original)
(quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). See also Sawyer v.
Whitley, 505 U.S. 333, 339 (1992) (“[T]he miscarriage of justice exception is concerned
with actual as compared to legal innocence.”). Because Williams’s “actual innocence”
claim has nothing to do with his factual innocence, the allegation fails to state a valid actual
innocence claim. As such, Ground Four is due to be denied.
E. The Motion to Amend, Johnson, and the Career Offender Enhancement
Finally, Williams amended his § 2255 motion to add a claim that, based on the
Supreme Court’s decision in Johnson, 135 S. Ct. 2551, his classification as a career
offender under § 4B1.1 of the United States Sentencing Guidelines (“Guidelines”) was
unlawful. See generally Motion to Amend. The Supreme Court held in Johnson that the
Armed Career Criminal Act’s (ACCA’s) “residual clause” is unconstitutionally vague
because it creates uncertainty about how to evaluate the risks posed by a prior crime and
how much risk it takes to qualify as a violent felony. 135 S. Ct. at 2557-58. At the time of
Williams’s sentencing, U.S.S.G. § 4B1.2(a)(2) contained a residual clause that was
identical to the ACCA’s residual clause. However, the Supreme Court held that its decision
in Johnson does not extend to the Guidelines’ career offender provision because the voidfor-vagueness doctrine does not apply to advisory sentencing guidelines. Beckles v.
United States, 137 S. Ct. 886, 894-95 (2017). Therefore, binding precedent forecloses

16

Williams’s argument that Johnson invalidates his career offender enhancement, and relief
on this claim is due to be denied.6
IV.

Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)
If Williams seeks issuance of a certificate of appealability, the undersigned opines

that a certificate of appealability is not warranted. This Court should issue a certificate of
appealability only if the petitioner makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). To make this substantial showing, Williams
"must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were
'adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335–36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Where a district court has rejected a petitioner's 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. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the petitioner
must show that "jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it debatable

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In any event, Williams’s career offender designation did not implicate the residual clause.
(See Civ. Doc. 14, United States’ Response to Order to Show Cause). Williams received the career
offender enhancement because he had three prior convictions for a “controlled substance offense,”
consisting of a prior conviction for the sale of cocaine and two prior convictions for possession of
cocaine with intent to distribute. Presentence Investigation Report at ¶ 30; (Crim. Doc. 95,
Sentencing Transcript at 4-5). Thus, even if § 4B1.2(a)(2)’s residual clause were unconstitutionally
vague, Williams still would not be entitled to relief.

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whether the district court was correct in its procedural ruling." Id. Upon consideration of
the record as a whole, this Court will deny a certificate of appealability.
As such, and in accordance with the Rules Governing Section 2255 Cases in the
United States District Courts, it is hereby
ORDERED:
1. Petitioner Leotis Williams’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence (Civ. Doc. 1), as amended (Civ. Doc. 6), is DENIED.
2. The Clerk shall enter judgment in favor of the United States and against Leotis
Williams, and close the file.
3. If Williams appeals the denial of the petition, the Court denies a certificate of
appealability. Because this Court has determined that a certificate of appealability
is not warranted, the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this case. Such
termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida this 23rd day of January, 2018.

Lc19
Copies:
Counsel of Record
Pro se petitioner

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