Alston v. United States of America

Filing 13

ORDER denying 1 Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence. The Clerk shall enter judgment in favor of the United States and against Petitioner, and close the file. The Court denies a certificate of appealability. Signed by Judge Timothy J. Corrigan on 6/7/2019. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TIMOTHY ERIC ALSTON,
Petitioner,
vs.

Case No.:

UNITED STATES OF AMERICA,
Respondent.

3:16-cv-867-J-32PDB
3:12-cr-118-J-32PDB

/
ORDER

This case is before the Court on Petitioner Timothy Eric Alston’s pro se Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255
Motion) 1, exhibits, and Memorandum of Law and Fact (Civ. Doc. 6, Memorandum). 2
The United States has responded (Civ. Doc. 8, Response), and Petitioner has filed a
reply brief (Civ. Doc. 10, Reply). Thus, the case is ripe for a decision.

Citations to the record in the criminal case, United States vs. Timothy Eric
Alston, No. 3:12-cr-118-J-32PDB, will be denoted “Crim. Doc. __.” Citations to the
record in the civil § 2255 case, No. 3:16-cv-867-J-32PDB, will be denoted “Civ. Doc. __.”
2
The Court only considers the 16 page main document of the Memorandum.
Before he filed the § 2255 Motion, Petitioner moved to exceed the page limit (Crim.
Doc. 162), and a United States Magistrate Judge granted the request to the extent
Petitioner could file 15 additional pages beyond the § 2255 form (Crim. Doc. 163). Still,
Petitioner’s initial memorandum was 36 pages long. (See Civ. Doc. 2). The Court
struck the 36-page memorandum and ordered Petitioner to refile a memorandum no
longer than 15 pages. (Civ. Doc. 4).
Petitioner refiled the Memorandum, with the main document being 16 pages
(including the signature page) (Civ. Doc. 6) and the rest of the original memorandum
being attached as a 23-page “exhibit” (Civ. Doc. 6-1). Because the “exhibit” is an
attempt to circumvent the page limitation, the Court will strike it. There is no reason
why Petitioner could not have presented all his claims within the space allotted by the
§ 2255 form and the additional 15 pages allowed by the Magistrate Judge. The Court
has considered Petitioner’s reply brief.
1
1

Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court
has determined that an evidentiary hearing is not necessary to decide the motion. See
Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing is
not required when the petitioner asserts allegations that are affirmatively
contradicted by the record or patently frivolous, or if in assuming that the facts he
alleges are true, he still would not be entitled to any relief). For the reasons set forth
below, Petitioner’s § 2255 Motion is due to be denied.
I.

Background
After Petitioner was arrested in a sting operation, a grand jury charged him

with one count of attempting to possess less than 50 kilograms of marijuana with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846, and
one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). (Crim. Doc. 1, Indictment). Petitioner pled not guilty. (See Crim. Doc. 14).
Petitioner moved to suppress all physical evidence (including two loaded
firearms) seized during a warrantless search of his car. (Crim. Doc. 24, Motion to
Suppress). Following a suppression hearing, a United States Magistrate Judge
recommended that the Court deny the motion to suppress. (Crim. Doc. 31, Report and
Recommendation). Petitioner objected to the report and recommendation (Crim. Doc.
37, Objections), but the Court overruled the objections, adopted the report and
recommendation, and denied the motion (Crim. Doc. 41, Order Denying Motion to
Suppress).

2

The case proceeded to a trial before a jury. (See Crim. Docs. 134, 135). After
hearing two days of testimony and argument, the jury found Petitioner guilty of both
counts. (Crim. Doc. 84, Jury Verdict).
The Probation Office prepared a Presentence Investigation Report (PSR), in
which it calculated Petitioner’s total offense level to be 30 and his Criminal History
Category to be VI, yielding an advisory sentencing range of 168 to 180 months in
prison. PSR at ¶¶ 29, 44, 77. According to the PSR, the base offense level was 24
because Petitioner was convicted of being a felon in possession of a firearm after
receiving two prior convictions for a crime of violence or a controlled substance offense.
PSR at ¶ 20; U.S.S.G. § 2K2.1(a)(2). The two prior convictions were for (1) possession
of cocaine and marijuana with intent to distribute under Georgia law, and (2)
aggravated assault under Georgia law. Id. at ¶ 20; see also id. at ¶¶ 26, 40, 41.
Petitioner received a four-level enhancement under § 2K2.1(b)(6)(B) for possession of
a firearm in connection with another felony offense, as well as a two-level
enhancement under § 3C1.1 for obstruction of justice. Id. at ¶¶ 21, 24. Petitioner’s
Criminal History Category was VI because the Probation Office recommended that he
was a career offender under U.S.S.G. § 4B1.1 based on the same prior convictions that
influenced the base offense level. Id. at ¶¶ 26, 44.
Petitioner did not object to the base offense level or the career offender
enhancement. 3 However, he did object to the weapon enhancement under §

At the sentencing hearing, counsel mentioned that Petitioner wanted him to
object to the career offender enhancement, but counsel explained that he had
researched the issue and found no merit in objecting to the career offender
classification. (Crim. Doc. 125, Sentencing Tr. at 14-15).
3

3

2K2.1(b)(6)(B) and the obstruction-of-justice enhancement under § 3C1.1. (Crim. Doc.
95, Objections to PSR at 2-6). Petitioner also argued for a variance below the
Guidelines range based on the 18 U.S.C. § 3553(a) factors. (Id. at 6-11).
At the sentencing hearing, the Court overruled both Guidelines objections
(Crim. Doc. 125 at 11-12, 14), thereby sustaining the PSR’s Guidelines calculation.
However, the Court varied well below the Guidelines range by sentencing Petitioner
to concurrent terms of 60 months in prison as to Count One and 92 months in prison
as to Count Two, for a total prison sentence of 92 months. (Id. at 30-31); (Crim. Doc.
107, Amended Judgment).
Petitioner appealed the judgment to the Eleventh Circuit Court of Appeals,
challenging only the denial of the motion to suppress. United States v. Alston, 598 F.
App’x 730, 731 (11th Cir. 2015). The Eleventh Circuit rejected the challenge, holding
that under the automobile exception, police officers had probable cause to believe his
vehicle contained evidence of criminal activity. Id. at 734 (citing United States v. Ross,
456 U.S. 798, 799-825 (1982); United States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir.
2007)). Thus, the Eleventh Circuit held that the warrantless search was valid and
affirmed Petitioner’s conviction and sentence. Id. at 735.
After the Eleventh Circuit issued its opinion, Petitioner filed a 44-page pro se
“Motion to Withdraw Counsel,” asserting a breakdown in communications and
complaining that appellate counsel failed to raise various issues. United States v.
Alston, No. 14–10416 (11th Cir.), ECF Entry of Mar. 9, 2015 (Motion to Discharge
Counsel). The Eleventh Circuit denied the motion in a substantive 7-page order. Id.,
ECF Entry of April 10, 2015; (Civ. Doc. 8-3, USCA Order Denying Motion to Discharge
4

Counsel). The court “note[d] that Appellant’s current counsel is the third attorney to
represent Appellant in this case, which suggests that Appellant may have difficulty
getting along with and collaborating with counsel.” Id. at 2. The court went on to
explain that the arguments Petitioner wanted appellate counsel to make lacked merit,
and therefore denied the motion. Id. at 3-7.
Thereafter, Petitioner filed a counseled petition for panel rehearing, which the
Eleventh Circuit denied, 11th Cir. ECF Entry of July 2, 2015, and a petition for a writ
of certiorari, which the United States Supreme Court denied, Alston v. United States,
136 S. Ct. 560 (2015) (Mem.). Petitioner then timely filed the instant § 2255 Motion.
II.

Arguments
In Grounds One and Two of the § 2255 Motion and Memorandum, Petitioner

argues, for various sub-reasons, that the Court miscalculated his Guidelines range
and erred in sentencing him as a career offender. In Ground Three, Petitioner argues
that the Court erred in denying the motion to suppress. In Ground Four, Petitioner
raises a laundry list of unrelated claims, including the denial of pretrial release, an
alleged violation of the Speedy Trial Act, and an alleged violation of the Double
Jeopardy Clause.
In response, the United States argues that Petitioner’s claims lack merit and
were resolved against him on direct appeal. (Civ. Doc. 8 at 5-7). The United States also
construes Petitioner’s claims as being raised under the guise of ineffective assistance
of counsel, which the United States argues lack merit as well. (Id. at 7-10).

5

While the Court agrees that the claims lack merit, the Court disagrees that
Petitioner raises his claims under the ineffective assistance framework. Courts will
liberally construe pro se pleadings, but a court does not have license to rewrite the
litigant’s claims. Campbell v. Air Jamaica, Ltd., 760 F.3d 1165, 1168-69 (11th Cir.
2014) (citation omitted). Throughout the § 2255 Motion and Memorandum, nowhere
does Petitioner allege ineffective assistance of counsel, cite Strickland 4 or its progeny,
or cite the Sixth Amendment’s right-to-counsel clause. Petitioner makes only a few
sparse, single-sentence remarks about counsel not raising an issue – and even so, the
comments are not made in the context of asserting ineffective assistance as a ground
for relief. (See Civ. Doc. 1 at 4, 5, 7, 8; Civ. Doc. 6 at 3). Petitioner does not allege that
counsel’s performance was deficient under objective standards of professional conduct,
nor does Petitioner allege that any omission was prejudicial under Strickland. The
gravamen of the § 2255 Motion and Memorandum is that the Court misapplied the
career offender guideline and § 2K2.1(b)(6)(B), and that the Court itself erred in other
ways. Thus, the Court construes Petitioner’s arguments just as they are presented: as
direct challenges to his conviction and sentence. 5

Strickland v. Washington, 466 U.S. 668 (1984). To establish that counsel gave
constitutionally ineffective assistance, a petitioner must prove that (1) counsel’s
performance was objectively unreasonable, and (2) but for counsel’s error, there is a
reasonable probability the outcome of the proceeding would have been different. Id. at
687, 694.
5
Even if the Court construed the isolated comments about counsel not raising an
argument as ineffective assistance claims, the allegations are too conclusory to
warrant relief. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). Moreover, the
underlying arguments either lack merit or were resolved against Petitioner on direct
appeal, as explained below.
4

6

III.

Law
A. 28 U.S.C. § 2255

Under 28 U.S.C. § 2255 a person in federal custody may move to vacate, set
aside, or correct his sentence. Section 2255 permits collateral challenges on four
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
fundamental 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).
B. Procedural Default
“Courts have long and consistently affirmed that a collateral challenge, such as
a § 2255 motion, may not be a surrogate for a direct appeal.” Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004) (citing United States v. Frady, 456 U.S. 152, 165
(1982)). “Under the procedural default rule, ‘a defendant generally must advance an
available challenge to a criminal conviction or sentence on direct appeal or else the
defendant is barred from presenting that claim in a § 2255 proceeding.’” McKay v.
United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (quoting Lynn, 365 F.3d at 1234).
“This rule generally applies to all claims, including constitutional claims.” Lynn, 365
F.3d at 1234 (citing Reed v. Farley, 512 U.S. 339, 354 (1994)).
A petitioner can avoid a procedural default by showing either (1) cause for and

7

actual prejudice from the default, or (2) that “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Id. (quoting Murray v.
Carrier, 477 U.S. 478, 496 (1986)). With respect to “cause and prejudice,” “to show
cause for procedural default, [a petitioner] must show that some objective factor
external to the defense prevented [him] or his counsel from raising his claims on direct
appeal and that this factor cannot be fairly attributable to [the petitioner’s] own
conduct.” Id. at 1235 (citing Smith v. Jones, 256 F.3d 1135, 1145 (11th Cir. 2001)).
Ineffective assistance of counsel may constitute cause for a default, but only if the
ineffective assistance claim has merit. United States v. Nyhuis, 211 F.3d 1340, 1344
(11th Cir. 2000). Petitioner must also show that “actual prejudice” resulted from the
claim not being raised on direct appeal. Lynn, 365 F.3d at 1234 (citing Bousley v.
United States, 523 U.S. 614, 622 (1998)). The second exception, actual innocence, “is
exceedingly narrow in scope as it concerns a petitioner's ‘actual’ innocence rather than
his ‘legal’ innocence.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001)
(citations omitted). “To show actual innocence of the crime of conviction, a movant
‘must show that it is more likely than not that no reasonable juror would have found
[him] guilty beyond a reasonable doubt’ in light of the new evidence of innocence.”
McKay, 657 F.3d at 1196 (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851,
130 L. Ed. 2d 808 (1995)). The actual innocence exception is supposed to “remain ‘rare’
and … only be applied in the ‘extraordinary case.’” Schlup, 513 U.S. at 321.

8

IV.

Discussion
A. Grounds One and Two
1. Objection to Career Offender Enhancement
Petitioner first argues that the Court erred in sentencing him as a career

offender under U.S.S.G. § 4B1.1. (Civ. Doc. 1 at 4-5; Civ. Doc. 6 at 5-15). The career
offender classification did not affect his Guidelines offense level, but it did determine
his Criminal History Category. 6 Between Grounds One and Two, Petitioner suggests
five reasons why the career offender enhancement was erroneous. First, Petitioner
suggests that the instant offenses of conviction (under 21 U.S.C. § 841 and 18 U.S.C.
§ 922(g)) do not qualify him for the career offender enhancement. Second, Petitioner
argues that the two prior Georgia convictions behind the career offender enhancement
do not count as separate convictions. Third, Petitioner argues that the career offender
enhancement is unlawful because § 4B1.2(a)’s residual clause is unconstitutionally
vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Fourth, Petitioner,
contends that his prior Georgia convictions do not meet the definition of a “crime of
violence” or “controlled substance offense” under the categorical approach. Finally, in
the Memorandum, Petitioner argues that his prior Georgia convictions could not serve

Petitioner’s base offense level was set by U.S.S.G. § 2K2.1(a)(2) for being
convicted of possession of a firearm by a convicted felon after two prior convictions for
a crime of violence or a controlled substance offense. Because the commentary to §
2K2.1 gives the terms “crime of violence” and “controlled substance offense” the same
definition as that given under the career offender provision, several of Petitioner’s
objections to the career offender enhancement are equally applicable to § 2K2.1(a)(2).
But because those same arguments do not warrant § 2255 relief for the reasons below,
any objection to the application of § 2K2.1(a)(2) likewise does not warrant relief.
6

9

as career offender predicates because he entered Alford 7 pleas and did not actually
admit the facts of the charges. (Civ. Doc. 6 at 14-16).
Petitioner’s challenge to the career offender enhancement does not warrant
relief for two independent reasons. First, as the United States points out, Petitioner
objected to the career offender enhancement on direct appeal and the Eleventh Circuit
resolved the issue against him. As noted earlier, Petitioner filed a 44-page pro se
“Motion to Withdraw Counsel” in the Eleventh Circuit, in which he complained that
appellate counsel had failed to raise various arguments. The court found that most of
Petitioner’s complaints did not merit discussion, but it did address his complaint about
the career offender enhancement. (Civ. Doc. 8-3). As the court explained:
Second, Appellant contends that the district court erred when it
sentenced him as a “career offender” under the United States Sentencing
Commission Guidelines. According to Appellant, his prior convictions of
possession with intent to distribute cocaine and marijuana do not
constitute drug trafficking under Georgia law, where he was convicted
previously. Appellant points to the amount of drugs involved in his prior
convictions – 2.36 grams of cocaine and 17.3 grams of marijuana – and
asserts that his actions were not a “serious drug offense,” but rather,
simple possession of drugs. In support of his argument, Appellant
emphasizes that the relevant Georgia statute requires 28 grams of
cocaine and 50 pounds of marijuana for trafficking. See O.C.G.A. § 16-1331.
Under the sentencing guidelines, a defendant is considered to be a “career
offender” if (1) he is at least 18 years old when convicted of the instant
offense; (2) the instant offense is a felony that is either a crime of violence
or a controlled substance offense; and (3) he has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
See U.S.S.G. § 4B1.1. The sentencing guidelines further define the term
“controlled substance offense” as “an offense under federal or state law
North Carolina v. Alford, 400 U.S. 25 (1970). In Alford, the Supreme Court held
that “[a]n individual accused of a crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even if he is unwilling
or unable to admit his participation in the acts constituting the crime.” Id. at 37.
7

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punishable by imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with the intent to
manufacture, import, export, distribute, or dispense.” U.S.S.G. §
4B1.2(b).
Here, Appellant’s career-offender status resulted from his convictions for
(1) aggravated assault and possession of a firearm during the commission
of a felony; and (2) possession with intent to sell marijuana and
possession with intent to distribute cocaine. These two prior felony
convictions clearly qualify as predicate convictions for purposes of the
career-offender guideline.
First, Appellant does not contest the fact that his conviction for
aggravated assault and possession of a firearm during the commission of
a felony count as a “crime of violence.” Second, Appellant’s conviction for
possession of cocaine with intent to distribute and possession of
marijuana with intent to distribute in violation of O.C.G.A. § 16-13-30(b)
qualifies as a “controlled substance offense.” Not only is it designated as
a felony under the Georgia Code, see O.C.G.A. §§ 16-30-30(b), (d) (making
it a felony to “… possess with intent to distribute any controlled
substance”), but where, as here, the offense of possession with intent to
distribute cocaine is punishable by a term of imprisonment exceeding one
year, it is expressly identified by the guidelines as a qualifying
“controlled substance offense.” See U.S.S.G. § 4B1.2(b).
(Civ. Doc. 8-3 at 4-6). Thus, the court concluded that Petitioner properly qualified as
a career offender, such that appellate counsel was not required to raise the issue on
appeal. (Id. at 6).
“Once a matter has been decided adversely to a defendant on direct appeal it
cannot be re-litigated in a collateral attack under section 2255.” United States v.
Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (citations omitted). “At least where there
has been no intervening change in controlling law, a claim or issue that was decided
against a defendant on direct appeal may not be the basis for relief in a § 2255
proceeding.” Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012). Because the

11

Eleventh Circuit determined that Petitioner’s career offender enhancement was not
erroneous, he may not relitigate this issue under § 2255. The only potentially relevant
intervening change in the law is the Supreme Court’s holding in Johnson, 135 S. Ct.
2551, that the Armed Career Criminal Act’s residual clause is unconstitutionally
vague. But Johnson has no impact on the career offender sentence, because the
Supreme Court later held that the void-for-vagueness doctrine does not apply to
advisory sentencing guidelines, including the career offender provision’s residual
clause. Beckles v. United States, 137 S. Ct. 886, 892, 894 (2017). As such, Petitioner is
barred from relitigating the career offender enhancement.
Second, to the extent Petitioner argues that the offenses of conviction and his
prior convictions do not qualify as career offender predicates, he merely alleges a
misapplication of the career offender guideline. However, “erroneously designating a
defendant as a career offender [ ] is not a fundamental defect that inherently results
in a complete miscarriage of justice,” and therefore it is not a defect that is cognizable
under § 2255. Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).
“A misapplication of advisory sentencing guidelines … does not violate an ‘ancient’
right, nor does it raise constitutional concerns.” Id. at 1140. Thus, “[w]hen a federal
prisoner, sentenced below the statutory maximum, complains of a sentencing error
and does not prove either actual innocence of his crime or the vacatur of a prior
conviction, the prisoner cannot satisfy the demanding standard that a sentencing error
resulted in a complete miscarriage of justice.” Id. at 1139. 8

In any event, each of Petitioner’s current objections to the career offender
enhancement lacks merit.
8

12

2. Objection to § 2K2.1(b)(6)(B) enhancement
Petitioner also objects to receiving a four-level enhancement under U.S.S.G. §
2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense. (Civ.
Doc. 6 at 2-5). Police officers recovered two loaded guns from the car that Petitioner
drove to the undercover drug transaction, which was the same car in which Petitioner
carried over $4,000 in cash to use for purchasing 5.5 pounds of marijuana. See PSR at
¶¶ 8-12, 21. Petitioner’s counsel objected to the enhancement at the sentencing
hearing, but the Court overruled the objection. (Crim. Doc. 125 at 11-12). Petitioner
did not argue against the enhancement on direct appeal.
Petitioner’s challenge to the weapon enhancement fails for three independent
reasons. First, the claim is procedurally defaulted because the claim was available on
direct appeal but Petitioner did not raise it. McKay, 657 F.3d at 1196; Lynn, 365 F.3d
at 1234. Petitioner has not established that he can avoid the default under the causeand-prejudice standard or the actual innocence exception. Second, because Petitioner
merely challenges the Guidelines calculation, which even if erroneous does not render
his sentence illegal, the claim is not cognizable under § 2255. Spencer, 773 F.3d at
1138-41. Finally, the claim lacks merit because the weapon enhancement properly
applied. Section 2K2.1(b)(6)(B) applies “in the case of a drug trafficking offense in
which a firearm is found in close proximity to drugs, drug-manufacturing materials,
or drug paraphernalia” “because the presence of the firearm has the potential of
facilitating another felony offense or another offense, respectively.” U.S.S.G. § 2K2.1,
Application Note 14(B). As noted, police recovered two firearms from the vehicle that
Petitioner drove to the drug transaction. Petitioner carried over $4,000 in drug13

purchase money in the same car, and he planned to drive the drugs back to Georgia in
the same car. The PSR also suggests that shortly before he was arrested, Petitioner
placed a sample of marijuana in his vehicle. PSR at ¶ 10. Although Petitioner testified
at trial that an individual named “Jay” planted the guns in his car, the Court rejected
this explanation as not only “far-fetched” (Crim. Doc. 125 at 9), but as warranting an
enhancement for obstruction of justice (id. at 12-14). Thus, the weapon enhancement
applied because Petitioner carried two loaded guns that facilitated, or had the
potential to facilitate, a drug trafficking offense. See U.S.S.G. § 2K2.1, Application
Note 14(A). Petitioner’s objection thus lacks merit, and Grounds One and Two are
denied.
B. Ground Three
Next, Petitioner argues that the Court erred in denying the motion to suppress
“based on misleading and improper, tainted information.” (Civ. Doc. 1 at 6). Petitioner
lists several reasons why he believes the Court erred in denying the motion to
suppress, including: (1) that the Court overlooked “material facts, policies, and
procedures of the Jacksonville Sheriff’s Office,” (2) the Court misapprehended or
misinterpreted state laws, (3) the government’s affidavits, witnesses, and confidential
informant were not credible or reliable, and (4) there were unspecified errors in the
“finding[s] of fact and conclusion[s] of law” – by which Petitioner presumably refers to
the Magistrate Judge’s report and recommendation. (Id.). However, Petitioner does
not elaborate on any of these reasons.

14

This claim does not merit relief because the issue was raised and resolved
against Petitioner on direct appeal. The sole issue that Petitioner argued on appeal
was whether this Court should have granted his motion to suppress. Alston, 598 F.
App’x at 731. The Eleventh Circuit indicated that the search of Petitioner’s car, which
yielded two loaded firearms, was a lawful search incident to arrest. Id. at 733-34. But
ultimately the court “affirm[ed] the denial of the motion to suppress alternatively
under the automobile exception because officers had probable cause to believe that the
vehicle contained evidence of criminal activity.” Id. at 734. The court explained:
…. In contrast to the search-incident-to-arrest exception, the automobile
exception “allows searches for evidence relevant to offenses other than
the offense of arrest, and the scope of the search authorized is
broader.” Gant, 556 U.S. at 347, 129 S. Ct. at 1721.[9]
This Court has explained that the automobile exception authorizes a
search of a vehicle if “(1) the vehicle is readily mobile; and (2) the police
have probable cause for the search.” Lindsey, 482 F.3d at 1293. For the
mobility requirement, the car must simply be operational. See id. The
fact that Alston drove the Maxima to the drug deal shows that it was
operational. “Probable cause, in turn, exists when under the totality of
the circumstances, there is a fair probability that contraband or evidence
of a crime will be found in the vehicle.” Id. (quotation marks omitted).
Here, the facts and circumstances known to the officers, construed in the
light most favorable to the government, show that Alston drove from
Savannah, Georgia, to Jacksonville, Florida, to purchase marijuana and
cocaine, negotiated the purchase of five-and-a-half pounds of marijuana,
possessed several thousands of dollars to complete the transaction, and
then attempted to offer payment for the marijuana. Furthermore, in
conducting the arrest of Alston's passenger, an officer observed in plain
view a “wad of cash” arranged in “drug folds,” which was consistent with
what he had seen in other drug investigations. Given the reason for
which Alston and his passenger were at the flea market, the officers
reasonably could have concluded that Alston and his passenger intended
to use the money to purchase drugs.

9

Arizona v. Gant, 556 U.S. 332 (2009).
15

Under the totality of the circumstances, we are satisfied that probable
cause existed to believe that the car, which was being used as an
instrument of drug-trafficking activity, contained additional evidence of
drug-trafficking activity, such as drug paraphernalia, cash, or records of
drug transactions, among other things. See, e.g., United States v.
Brazel, 102 F.3d 1120, 1146–47 (11th Cir. 1997) (finding probable cause
to justify a warrantless search of the vehicle because circumstances
indicated that the car was used to facilitate drug offenses).
Because probable cause existed to search the vehicle for evidence of drugtrafficking activity, officers were allowed to search the areas where the
two guns were found—the glove compartment and the area under the
driver's seat. See Ross, 456 U.S. at 825, 102 S. Ct. at 2173 (“If probable
cause justifies the search of a lawfully stopped vehicle, it justifies the
search of every part of the vehicle and its contents that may conceal the
object of the search.”). Both of these places could have, and in fact did,
conceal evidence of drug-trafficking activity. Cf. United States v. Cruz,
805 F.2d 1464, 1474 (11th Cir. 1986) (noting that “guns are a tool of the
drug trade” and that “[t]here is a frequent and overpowering connection
between the use of firearms and narcotics traffic”). Accordingly, we affirm
the district court's denial of the motion to suppress.
Alston, 598 F. App’x at 734-35 (footnotes omitted).
Petitioner does not explain how any alleged misapprehension of the facts or
state law undermines the Eleventh Circuit’s analysis of why police officers had
probable cause to search his vehicle. Nor has Petitioner pointed to any controlling
change in Fourth Amendment law since the Eleventh Circuit ruled against him on
direct appeal. As such, Petitioner is barred from relitigating this issue under § 2255.
Rozier, 701 F.3d at 684; Nyhuis, 211 F.3d at 1343. Ground Three is due to be denied.
C. Ground Four
Finally, Petitioner raises a list of miscellaneous claims, consisting of the
following: (1) that he was improperly denied bail or pretrial release, (2) that the delay
between his arrest and indictment violated Fed. R. Crim. P. 5(a), (3) that the delay
16

between the indictment and the trial violated the Speedy Trial Act, (4) that his right
to be free from double jeopardy was violated because he was sentenced for the same
offense in both state court and federal court, and (5) that the lifetime ban on receiving
federal benefits, under 21 U.S.C. § 862, is unlawful. 10 Although not listed under any
ground, Petitioner also seems to raise another list of miscellaneous claims on page 9
of the § 2255 form, including the alleged use of excessive force during his arrest and
violations of Florida state law. (Civ. Doc. 1 at 9).
Petitioner does not provide supporting facts for these conclusory allegations.
For that reason alone, the claims are due to be denied. See Rule 2(b), Rules Governing
§ 2255 Proceedings for the United States District Court (requiring that the § 2255
motion “state the facts supporting each ground”); see also, e.g., Lynn, 365 F.3d at 123839 (conclusory allegations of government misconduct will not support § 2255 relief);
Tejada, 941 F.2d at 1559 (allegations of ineffective assistance of counsel, unsupported
by specifics, do not warrant an evidentiary hearing); Stano v. Dugger, 901 F.2d 898,
899 (11th Cir. 1990) (en banc) (“‘The petitioner will not be entitled to an evidentiary
hearing when his claims are merely ‘conclusory allegations unsupported by specifics’
....”) (citation omitted).
Moreover, Petitioner could have raised all of the claims listed in Ground Four
on direct appeal, but he did not do so. As such, the claims are procedurally defaulted.
McKay, 657 F.3d at 1196; Lynn, 365 F.3d at 1234. Petitioner has not shown he can
avoid the default under the cause-and-prejudice or actual innocence exceptions.

As part of the judgment, Petitioner was deemed permanently ineligible for
certain federal benefits under 21 U.S.C. § 862. (Crim. Doc. 107 at 7).
10

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Finally, at least some of Petitioner’s claims are not cognizable under § 2255 or
are meritless. Petitioner’s complaint about being denied pretrial release does not
implicate the legality of his conviction and sentence, the Court’s jurisdiction, or a
fundamental miscarriage of justice. See 28 U.S.C. § 2255(a); Spencer, 773 F.3d at
1138-41. Petitioner’s conclusory allegation that police used excessive force when
arresting him, without more, also does not implicate the legality of his conviction and
sentence. And Petitioner’s claim that he suffered a Double Jeopardy violation “under
dual soverignty” (sic) is meritless. (Civ. Doc. 1 at 8). Petitioner was arrested and
charged in state court for the sale of cannabis and possession of a firearm by a
convicted felon based on the same conduct for which he was convicted here. See PSR
at ¶ 48. But the PSR reflects that the state court charges were dismissed in lieu of
federal prosecution. Id. Accordingly, Petitioner is not entitled to relief on the assorted
claims listed in Ground Four and on page 9 of the § 2255 Motion. 11
D. Reply Brief
In his reply brief, Petitioner claims for the first time that (1) his appointed
attorneys gave ineffective assistance by failing to raise various issues, (2) the
obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 was erroneous, and (3)
there was a mismatch between the indictment and the proof at trial. (Civ. Doc. 10).

The Court also doubts that Petitioner’s complaint about his permanent
ineligibility for federal benefits is cognizable under § 2255 because § 2255 cannot be
used to challenge non-custodial aspects of the sentence. Mamone v. United States, 559
F.3d 1209, 1210-11 (11th Cir. 2009); Blaik v. United States, 161 F.3d 1341, 1342-43
(11th Cir. 1998).
11

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To begin with, a party cannot raise new claims in a reply brief without first
obtaining leave of the court to add the new claims. Oliveiri v. United States, 717 F.
App’x 966, 967 (11th Cir. 2018); Snyder v. United States, 263 F. App’x 778, 779-80 &
n.2 (11th Cir. 2008). Because Petitioner did not obtain leave of the Court to add these
new claims, the allegations are not properly before the Court.
Additionally, the record refutes Petitioner’s allegation that his attorneys were
ineffective for ignoring meritorious issues. Petitioner’s own attachments to the reply
brief reflect that each of Petitioner’s lawyers considered the matters he wanted them
to raise, researched the issues, and wrote Petitioner to explain why the proposed
issues lacked merit. (See Civ. Doc. 10-1, Letter from Wade Rolle; Civ. Doc. 10-2, Letters
from Charles Truncale; Civ. Doc. 10-3, Letter from Lisa Call). This is confirmed by the
Eleventh Circuit’s order denying Petitioner’s pro se “Motion to Withdraw Counsel.”
Alston, No. 14–10416 (11th Cir. Apr. 10, 2015). The court found that none of the issues
Petitioner complained about not being raised had merit. Id. The court also found there
was no merit to Petitioner’s claim that there was a variance between the indictment
and the proof at trial. Id. at 3-4. Therefore, Petitioner is not entitled to relief on any of
the new arguments raised in the reply brief.
V.

Conclusion
Having considered each of Petitioner’s claims, and finding that none warrants

§ 2255 relief, it is hereby ORDERED:
1. Petitioner Timothy Eric Alston’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence is DENIED.
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2. The Clerk should enter judgment in favor of the United States and against
Petitioner, and close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to
appeal a district court’s denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (COA). Id. “A [COA] may issue…
only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 2253(c)(2). To make such a showing, Petitioner “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)).
Petitioner has not made the requisite showing in these circumstances. Because
Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in
forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 7th day of June, 2019.

TIMOTHY J. CORRIGAN
United States District Judge

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lc 19
Copies:
Counsel of record
Pro se petitioner

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