Nance v. United States Of America
ORDER denying 8 Motion for Hearing, and dismissing as moot 11 Motion to Compel. Signed by Magistrate Judge R. Stan Baker on 10/3/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 2:16-cv-77
UNITED STATES OF AMERICA,
(Case No.: 2:14-cr-6)
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Melvin Nance (“Nance”), who is currently incarcerated at the Federal
Correctional Institution in Yazoo City, Mississippi, filed a Motion to Vacate, Set Aside, or
Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Respondent filed a Response,
(doc. 3), to which Nance filed a Reply, (doc. 4). 1 Nance also filed a Motion for Summary
Judgment and a Motion for Evidentiary Hearing. (Docs. 6, 8.) In addition, Nance filed a Motion
to Compel the Magistrate for Report and Recommendation. (Doc. 11.) For the reasons which
follow, I RECOMMEND the Court DENY Nance’s Section 2255 Motion, DISMISS as moot
his Motion for Summary Judgment 2, DIRECT the Clerk of Court to CLOSE this case and enter
In his Reply, Nance asserts the Government’s Response to his Section 2255 Motion should be
disregarded because it was untimely. (Doc. 4, p. 9.) By Order dated June 3, 2016, the Court ordered the
Government to file a Response to Nance’s Motion within thirty (30) days. (Doc. 2.) Thus, the
Government had until July 3, 2016, to file its Response. Because July 3, 2016, was a Sunday and
Monday, July 4, 2016, was a federal holiday, the Government had until July 5, 2016, to file a timely
Response. Fed. R. Civ. P. 6(a)(1)(A) & (C). Thus, the Government’s July 5, 2016, filing of its Response
Nance bases his Motion for Summary Judgment on his assertions that the Government responded to his
Section 2255 Motion late and that he provided an affidavit that had not been rebutted. (Doc. 6, p. 1.) As
discussed in footnote 1 of this Report, the Government filed its Response in a timely manner. In addition,
the Government has rebutted Nance’s affidavit.
the appropriate judgment of dismissal, and DENY Nance a Certificate of Appealability and in
forma pauperis status on appeal. For these same reasons, the Court DENIES Nance’s Motion
for Evidentiary Hearing and DISMISSES as moot his Motion to Compel.
Nance originally was convicted in the Middle District of Florida, after entry of a guilty
plea, of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was
sentenced to 151 months’ imprisonment. J., United States v. Nance, 3:08-cr-00075-MMH-JRK
(M.D. Fla. Dec. 2, 2009), ECF No. 91. On January 28, 2014, Nance was housed at the Federal
Prison Camp in Jesup, Georgia. (Doc. 3, p. 1.) Senior Correctional Officer Kerry Brown
received information on this same date that Nance was in possession of contraband. Officer
Brown went to Nance’s cubicle, searched Nance and his cellmate, and instructed Nance to leave
the area so that Officer Brown could search the cubicle. However, Nance remained at the
entrance to his cubicle while Officer Brown searched it. Nance then rushed past Officer Brown
and entered the cubicle. Officer Brown and Nance were involved in a struggle of some sort until
Officer Brown became fatigued and Nance was able to free himself. Nance then left the Prison
The next day, United States Magistrate Judge James E. Graham issued a warrant for
Nance’s arrest based on a Criminal Complaint filed by the United States Marshals Service
charging Nance with fleeing a Bureau of Prisons’ facility “without authorized permission.”
Compl., United States v. Nance, 2:14-cr-6 (S.D. Ga. Jan. 29, 2014), ECF No. 1. Nance was
arrested on January 30, 2014, and he was later charged by Indictment with knowingly escaping
an institutional facility in which he was lawfully confined, in violation of 18 U.S.C. § 751, by
virtue of the criminal conviction obtained in the Middle District of Florida. Indictment, United
States v. Nance, 2:14-cr-6 (S.D. Ga. Feb. 6, 2014), ECF No. 9. Nance faced a statutory penalty
of not more than five (5) years’ imprisonment and a term of supervised release of not more than
one (1) year. Penalty Cert., United States v. Nance, 2:14-cr-6 (S.D. Ga. Feb. 6, 2014), ECF
No. 10. Nance was originally represented by David Osborne, and, after Nance filed a letter
requesting new counsel and a hearing on the matter, the Court appointed Keith Higgins to
represent Nance. CJA 20s, United States v. Nance, 2:14-cr-6 (S.D. Ga. Feb. 7 & Mar. 11, 2014),
ECF Nos. 17, 26. In conformity with its liberal discovery policy, the United States Attorney’s
Office disclosed all materials in its possession, including a copy of Officer Brown’s personnel
file. (Doc. 3, p. 2.); Min. Entry, United States v. Nance, 2:14-cr-6 (S.D. Ga. May 21, 2014), ECF
After a jury was empaneled, Nance chose to change his plea to guilty without a written
plea agreement. Id.; Change of Plea, United States v. Nance, 2:14-cr-6 (S.D. Ga. May 21, 2014),
ECF No. 93. The Honorable Lisa Godbey Wood conducted a change of plea, or Rule 11,
hearing on the same day Nance changed his plea. After discussion with Nance of all of the rights
he was waiving by pleading guilty to the charged offense, Judge Wood informed Nance that, if
she accepted his plea, the sentencing phase was all that remained of his case. Change of Plea
Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D. Ga. Jan. 23, 2015), ECF No. 117, p. 8. Nance
affirmed he was satisfied with Mr. Higgins’ representation of him and had no complaints
whatsoever. Id. at pp. 8–9. Judge Wood noted the two (2) essential elements of the escape
offense and asked Nance whether he understood that pleading guilty was an admission that those
elements were satisfied. Judge Wood then advised Nance that the maximum statutory penalty
she could impose was “not more than five (5) years[’] imprisonment, a fine of not more than
$250,000, a term of supervised release of not more than a year 3, and a special assessment of
$100.” Id. at p. 10. Nance expressed his understanding of the maximum penalties. Id. Judge
Wood explained to Nance she had to impose a sentence upon him, and in so doing, she had to
take into consideration the advisory Sentencing Guidelines, any possible departures from the
Guidelines, all of the sentencing factors set forth in 18 U.S.C. § 3553, and his offense behavior.
Id. at pp. 11–12. After accepting Nance’s plea of guilty, Judge Wood advised Nance she would
have a United States Probation Officer prepare a Pre-Sentence Investigation report (“PSI”),
which would be disclosed to Nance and the Government, and then the Court would schedule a
sentencing hearing. Id. at pp. 27–28.
In the PSI, Nance’s base offense level for escape was 13. PSI, ¶ 16 (citing U.S.S.G.
§ 2P1.1(a)(1)). Five (5) levels were added for specific offense characteristics due to Nance’s
escape offense involving the use or threat of force and assaulting a correctional officer. Id. at
¶ 17 (citing U.S.S.G. § 2P1.1(b)(1)).
As support for the five-level increase, United States
Probation Officer Brian Mills stated in the PSI:
Nance then rushed past the CO, entering the cell. It was believed that the
defendant’s motivation was, at least in part, to retrieve a contraband item
(believed to be a cellular telephone) in an effort to prevent the item from being
found and seized by the CO. A struggle between Nance and the CO ensued
during which both individuals fell to the ground. The struggle continued on the
ground until the CO became fatigued and Nance was able to extricate himself
from the altercation. The defendant then fled from the building, making his
escape into a wooded area beyond the facility’s boundary line.
Id. at ¶ 6. As another specific offense characteristic, four (4) levels were subtracted based on
Nance’s escape from non-secure custody. Id. at ¶ 18 (citing U.S.S.G. § 2P1.1(b)(3)). Probation
Assistant United States Attorney Joseph Newman amended the penalty certification during the Rule 11
hearing to read that Nance faced a term of supervisory release of not more than three (3) years. Change
of Plea Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D. Ga. Jan. 23, 2015), ECF No. 117, p. 12.
However, Judge Wood advised she would not entertain a term of supervised release of more than one (1)
year, to which the Government did not object. Id.
Officer Mills did not award Nance with a further reduction for acceptance of responsibility
because Nance “vehemently denie[d] that he used any degree of force to effect his escape. This
position conflicts with the facts of this [case,] which establish that the defendant struggled with
the CO when fleeing his cell.” Id. at ¶ 13. With a total offense level of 14 and a criminal history
category of V, Nance’s recommended Guidelines’ range was 33 to 41 months’ imprisonment.
Id. at ¶ 83.
At the sentencing hearing, Judge Wood overruled Nance’s objections to the PSI
regarding his use of an alias and the findings as to Nance’s substance abuse history and stated
that neither of these objections affected her sentence calculation. Sent. Hr’g Tr., United States v.
Nance, 2:14-cr-6 (S.D. Ga. Dec. 5, 2014), ECF No. 114, pp. 65–67. Nance also objected to
Probation Officer Mills’ recommendation that Nance not receive a reduction for acceptance of
responsibility. Judge Wood sustained this objection and awarded Nance a two-level reduction.
Id. at p. 67. In addition, Nance objected to the recommended five-level increase for the use of
force, id. at pp. 5–6, and the Court heard testimony and argument as to this objection.
Officer Brown provided extensive testimony regarding the events of January 28, 2014,
particularly the circumstances surrounding Nance’s escape. Id. at pp. 8–44. Officer Brown
received anonymous information that Nance had at least one cell phone in his cubicle.
Responding to that information, Officer Brown directed Nance and his cell mate to step outside
of their cubicle and submit to a pat down search so that Officer Brown could conduct a
shakedown of the cubicle. Id. at pp. 14–15. Nance did not immediately follow Officer Brown’s
orders to step outside and submit to a pat search but “reluctantly” and “slowly” complied with
the orders after Officer Brown gave them a third time. Id. at pp. 16–18. Officer Brown stated
Nance was acting nervously, like there was something he did not want Officer Brown to find. Id.
at p. 18. Officer Brown testified that he then told Nance to step away from the cubicle so that he
could conduct the shakedown, and Nance complied after Officer Brown’s additional directive.
Id. at pp. 18–20. However, Officer Brown turned his head and noticed Nance was standing in
the entry way again. Nance stepped back into the cubicle, preventing Officer Brown from
conducting the shakedown. Id. at p. 21. Despite Officer Brown’s directives to step back and to
walk away, Nance kept walking toward Officer Brown. Id. Nance had his hands in front of his
body and tried to get around Officer Brown by pushing him. Id. at p. 22. When Nance pushed
him, Officer Brown grabbed him in a bear hug in an effort to restore order. Nance tried to break
free from Officer Brown’s grasp, and Officer Brown repeatedly told him to stop resisting. Id. at
p. 23. Officer Brown and Nance were “tussling”, and they fell to the floor. Id. at p. 24. Officer
Brown was able to activate his radio’s body alarm to signal an emergency situation to the control
center. Officer Brown also was able to hold Nance “for another minute or two” until he was
“too tired” to hold Nance any longer. Id. at pp. 24, 39. Nance got off the floor, grabbed
something off his bed, and walked out of the cubicle. Another officer came to Nance’s cubicle
to assist Officer Brown approximately one to two minutes after Nance left this area. The officers
conducted an accountability count, and Nance was missing from this count. Id. at p. 26. Staff
members searched the grounds for Nance and were unable to find him at the Prison Camp. Id. at
On cross-examination, Officer Brown admitted he may have told Probation Officer Mills
at some point that Nance only “rushed past” him, but the reason that differed from his testimony
at the sentencing hearing and what he initially told Probation Officer Mills had nothing to do
with being under oath.
Id. at pp. 35–37.
On re-direct, Officer Brown clarified that the
memorandum he wrote after the incident with Nance was consistent with his testimony at the
sentencing hearing. Id. at p. 43. Officer Brown reiterated that Nance pushed him, although
Nance did nothing else to get past Officer Brown. Id. at p. 39.
Probation Officer Mills testified that he stated in Nance’s initial PSI that Nance pushed
Officer Brown. Id. at p. 48. After written objections were submitted, Probation Officer Mills
submitted a revised PSI as the final PSI to the Court, and the final PSI indicated Nance “rushed
past” Officer Brown. Id. Probation Officer Mills stated he made this revision after speaking
with Officer Brown, who did not mention anything about being pushed during their
conversation. Id. at p. 49. Upon Judge Wood’s inquiry, Probation Officer Mills testified he
recommended Nance receive the five-level enhancement based on Officer Brown’s statements
that Officer Brown tried to restrain Nance, but Nance “resisted” and the two had a “struggle or
wrestling match which basically went to the ground. . . . Officer Brown continued to try to gain
control of Mr. Nance, but [he] continued to fight to get away from [Officer Brown].” Id. at
p. 50. Officer Mills also testified that he took Officer Brown’s report from within 24 hours after
the incident to establish the offense conduct in this case, rather than his conversation with Officer
Brown seven (7) months after the fact. Id. at p. 51.
Mr. Higgins argued that Officer Brown’s credibility had been impeached because he
testified that Nance had pushed him, which was different than what he had told Probation Officer
Mills, who had inquired about the facts of this case for a specific purpose. Id. at p. 58. Mr.
Higgins also argued Officer Brown’s credibility was impeached based on his admission that he
had been disciplined for having violated his duties for credit card fraud. 4 Mr. Higgins declared
that, while there was no force involved, to the extent it could be construed as force, said force
Officer Brown conceded during direct examination that he had been arrested for theft by conversion in
2009, and those charges were dismissed. He also conceded he had been disciplined ten (10) years prior
for misuse of a government credit card. Sent. Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D. Ga. Dec.
5, 2014), ECF No. 114, pp. 10, 12.
was not used for the purpose of Nance’s escape. Id. at p. 59. For these reasons, Mr. Higgins
submitted the five-level enhancement should not apply. Id. at pp. 61–62.
Judge Wood overruled Nance’s “main objection” regarding the five-level enhancement.
Id. at p. 66. In so doing, Judge Wood found:
And having had the opportunity to watch the witnesses testify live here in court
today and assess their credibility, and thinking about just common sense and logic
as it applies to what transpired back on January 28th, based, in part, on the
personal observations I was able to make today, I find by a preponderance of the
credible evidence, first, that some type of physical altercation did occur between
the correctional officer and Mr. Nance.
I find that Mr. Nance instigated the physical contact. I am unable to tell whether
there was pushing, and if so, at what point it did occur. But a certain degree of
physical force would inherently be necessary to influence the outcome of that bear
hug that occurred.
As I say, it is the Court’s specific finding, based on my assessment of credibility,
that Mr. Nance did instigate the physical conduct and force. I also find, with
regard to whether that force was involved in the escape, that it was; that Mr.
Nance’s actions transitioned to escape almost immediately. Once he was able to
get free from the correctional officer’s grasp, he grabbed his contraband and
immediately proceeded to leave the facility as far as anyone could tell. It would
be hard to wind up in downtown Brunswick from Jesup without having realized
some use of force in that connection.
As a result, those objections are overruled, and the five-level increase is properly
placed in this [C]ourt.
Id. at pp. 66–67.
Judge Wood reduced Nance’s total offense level by two (2) levels based on acceptance of
responsibility. Thus, Judge Wood found Nance’s total offense level to be 12, and he was in
criminal history category V. Judge Wood then found Nance’s Guidelines’ range to be 27 to 33
months in prison and one to three years’ supervised release. Judge Wood noted the statutory
maximum penalty was five years’ imprisonment. Id. at pp. 68–69.
In support of mitigation of sentence, Mr. Higgins noted the testimony of Erin Chalfant, a
case management coordinator at the Jesup, Georgia, facility. Ms. Chalfant offered that Nance
had previously been allowed to travel on his own to the Prison Camp in Jesup, and Nance
reported to the facility as he should have. Id. at pp. 55–57, 69. Mr. Higgins sought a downward
variance, as well, so that Nance could help care for his parents. Id. at pp. 69–70. He also asked
that Nance’s sentence in this case be ordered to run concurrently with his sentence obtained in
the Middle District of Florida. Id. at p. 72. In contrast, the Government requested that the Court
impose a sentence at the higher end of the Guidelines’ range because Nance’s escape from the
Prison Camp is an inherently dangerous crime under Section 3553(a) and that his sentence be
imposed to run consecutively to the term of imprisonment Nance was already serving. Id. at
pp. 73–74, 77. Nance addressed the Court and admitted to having escaped and having had “a big
altercation” with Officer Brown, but he said he intended on going back to the Prison Camp. Id.
at p. 78.
Judge Wood sentenced Nance to 31 months’ imprisonment, to be served consecutively to
the sentence he obtained in the Middle District of Florida. Judge Wood specifically stated,
I will say, having considered the § 3553 factors, that I would impose 31 months
based on those factors regardless of the outcome of certain of the objections that
were leveled. Looking at the need to curtail escapes from federal institutions,
looking at the nature of the offense that actually did occur, and the good and the
bad in Mr. Nance’s background, 31 months custody is the right amount. It is
[a] sufficient but not greater [than] necessary punishment.
Id. at p. 82.
Nance filed a direct appeal and argued that this Court erred by increasing the Guidelines’
range on the ground he used force against another person. In addition, Nance alleged the
altercation upon which this Court relied in imposing his sentence was unrelated to the charge of
escape and could not consist of relevant conduct. Appeal Op., United States v. Nance, 2:14-cr-6
(S.D. Ga. May 27, 2015), ECF No. 118, p. 2. The Eleventh Circuit Court of Appeals did not
reach the merits of Nance’s appeal because this Court stated at sentencing “it would have
imposed the same sentence based on the 18 U.S.C. § 3553(a) factors, regardless of the
Guidelines sentence range.” Id. Accordingly, the Eleventh Circuit found any procedural error
this Court may have committed in calculating Nance’s sentence range was harmless and affirmed
this Court’s judgment. Id.
In his timely filed Section 2255 Motion, Nance levies several allegations that Mr.
Higgins, his counsel at trial, sentencing, and on appeal, provided ineffective assistance. First,
Nance contends Mr. Higgins erred by not arguing on appeal that the length of time he was absent
from the Prison Camp did not meet the elements of the charged escape. (Doc. 1-1, p. 1.) Next,
Nance asserts Mr. Higgins was ineffective for failing to raise at sentencing or on appeal that he
did not use force during his escape, which is not a “violent felony” within the meaning of the
Armed Career Criminal Act, (“ACCA”), 18 U.S.C. § 924(e). (Id. at p. 2.) In addition, Nance
asserts Officer Brown provided inconsistent statements during the sentencing hearing, and Mr.
Higgins was ineffective for failing to raise this issue on appeal. (Id. at p. 9.) Moreover, Nance
asserts Mr. Higgins was ineffective for not objecting to the increase in sentencing on the ground
that he used force during the escape. (Id. at p. 11.)
The Government responds that Nance’s claims of ineffective assistance are meritless, and
his Section 2255 Motion should be denied as a result. (Doc. 3.) Nance states in his Reply that
Mr. Higgins was ineffective for failing to impeach Officer Brown. (Doc. 4, p. 3.) In addition,
Nance asserts the Government committed fraud upon this Court by allowing Officer Brown to
testify without providing Mr. Higgins information that Officer Brown was under investigation.
(Id. at p. 6.)
The Court addresses the parties’ contentions in turn.
Nance’s Ineffective Assistance of Counsel Claims
Criminal defendants have a right to effective assistance of counsel at all critical stages of
the proceedings. Strickland v. Washington, 466 U.S. 668 (1984). This right extends to the entry
of a guilty plea, Hill v. Lockhart, 474 U.S. 52, 58 (1985), and during sentencing proceedings,
Glover v. United States, 531 U.S. 198, 202 (2001).
To prevail on a claim of ineffective assistance of counsel, the defendant must
demonstrate (1) his counsel’s performance was deficient, i.e., the performance fell below an
objective standard of reasonableness, and (2) he suffered prejudice as a result of that deficient
Id. at 685–86.
The deficient performance requirement concerns “whether
counsel’s advice was within the range of competence demanded of attorneys in criminal cases.”
Hill v. Lockhart, 474 U.S. 52, 56 (1985). There is a strong presumption that counsel’s conduct
fell within the range of reasonable professional assistance. Davis v. United States, 404 F. App’x
336, 337 (11th Cir. 2010) (citing Strickland, 466 U.S. at 686). “It is petitioner’s burden to
‘establish that counsel preformed outside the wide range of reasonable professional assistance’
by making ‘errors so serious that [counsel] failed to function as the kind of counsel guaranteed
by the Sixth Amendment.’” LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir. 2014)
(quoting Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (alteration in original)).
“Showing prejudice requires petitioner to establish a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
(internal citation omitted).
“The prejudice prong requires a petitioner to demonstrate that
seriously deficient performance of his attorney prejudiced the defense.” Id. at 1312–13. “The
likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 112 (2011). “In evaluating performance, ‘counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.’” LeCroy, 739 F.3d at 1312 (quoting Strickland, 466 U.S. at 690). “If a
petitioner cannot satisfy one prong, we need not review the other prong.” Duhart v. United
States, 556 F. App’x 897, 898 (11th Cir. 2014). “[A] court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690.
To the extent Nance argues his counsel’s performance on appeal was deficient, such
claim is “governed by the same standards applied to trial counsel under Strickland.” Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). “A defendant can establish ineffective assistance
of appellate counsel by showing: (1) appellate counsel’s performance was deficient, and (2) but
for counsel’s deficient performance he would have prevailed on appeal.” Shere v. Sec’y. Fla.
Dep’t of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008) (citing Smith v. Robbins, 528 U.S. 259,
285–86 (2000)). “Appellate counsel is not ineffective for failing to raise claims reasonably
considered to be without merit.” Jones v. Sec’y, Dep’t of Corr., 487 F. App’x 563, 568 (11th
Cir. 2012) (citing Nyhuis, 211 F.3d at 1344). “An attorney is not required under the Constitution
or the Strickland standards to raise every non-frivolous issue on appeal.” Brown v. United
States, 720 F.3d 1316, 1335 (11th Cir. 2013) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)
(“Nothing in the Constitution or our interpretation of that document requires an appellate
attorney to raise every ‘colorable’ claim suggested by a client.”).
Counsel’s Failure to Argue Nance was Absent for Only Sixteen (16) Hours
Nance contends he was only away from the Prison Camp for sixteen (16) hours. Thus,
Nance asserts Mr. Higgins was ineffective for failing to argue Nance did not meet the elements
required for an escape charge. (Doc. 1-1, p. 1.) The Government asserts there is no minimum
amount of time a defendant must be gone from custody to constitute an escape. (Doc. 3, p. 12.)
Section 751 of Title 18 of the United States Code provides, in relevant part, “Whoever
escapes . . . from the custody of the Attorney General or his authorized representative, or from
any institution or facility in which he is confined by direction of the Attorney General, . . ., shall,
if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any
offense, be fined under this title or imprisoned not more than five years, or both[.]” 18 U.S.C.
§ 751(a). “To sustain a conviction for escape by an inmate in custody . . ., the government must
prove . . .: (1) the defendant was in the custody of the Attorney General, (2) as the result of a
conviction, and (3) the defendant escaped from that custody.” United States v. Gibbs, 296 F.
App’x 885, 886 (11th Cir. 2008) (citing United States v. Bailey, 444 U.S. 394 (1980)). Section
751(a) “does not define the term ‘escape,’ [but] courts and commentators are in general
agreement that it means absenting oneself from custody without permission.” Bailey, 444 U.S.
Nance pled guilty to the charged offense of escape, which means he pled guilty to
absenting himself from the Jesup Prison Camp without permission. Section 751(a) does not have
an attendant temporal requirement, and thus, it is immaterial whether Nance was absent without
permission from the Camp for a minute, sixteen hours, or a year. 5 As a result, Nance suffered no
Section 2P1.1(b)(2) of the Sentencing Guidelines provides that, if the defendant escaped from nonsecure custody and returned voluntarily within ninety-six (96) hours, the offense level will be decreased
by four (4) levels. “Returned voluntarily” includes “voluntarily returning to the institution or turning
one’s self in to a law enforcement authority as an escapee[.]” Application Note 2, U.S.S.G. § 2P1.1.
prejudice from Mr. Higgins’ failure to raise Nance’s absenteeism for “only” sixteen (16) hours as
a defense or a mitigating factor to the charged offense. Nance fails to establish Mr. Higgins was
ineffective as to this enumeration, and the Court should DENY this portion of Nance’s Motion.
Counsel’s Failure to Argue Nance did not Commit a Crime of Violence
Nance admits that he pushed Officer Brown, but only to get the officer off of him. Nance
contends he pushed Officer Brown based on the “exigent circumstances of fear of being injured”
because Officer Brown was kicking him, which made the push reckless but not a violent use of
force. (Doc. 1-1, p. 2.) Nance contends Section 2P1.1 of the Sentencing Guidelines contains
language similar to the residual clause of the ACCA, which the United States Supreme Court
struck down in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (June 26, 2015). (Id. at
p. 4.) Nance argues his counsel was ineffective for failing to anticipate this change of law and
failing to making this argument on appeal. (Id. at p. 3.)
The Government avers the ACCA’s residual clause had no bearing on Nance’s sentence.
Instead, the Government asserts Nance’s Section 2P1.1(b)(1) enhancement is unrelated to the
ACCA’s residual clause and is still valid after Johnson. Additionally, the Government notes
Johnson did not invalidate any of the Sentencing Guidelines, which are advisory. (Doc. 3,
Under the Armed Career Criminal Act (“ACCA”), any person who violates 18 U.S.C.
§ 922(g) and has on three or more occasions been convicted for a “serious drug offense” or
“violent felony” will receive a mandatory minimum sentence of fifteen years’ imprisonment.
18 U.S.C. § 924(e)(1). In Johnson, the Supreme Court explained that the ACCA:
defines ‘violent felony’ as follows: ‘any crime punishable by imprisonment for a
term exceeding one year . . . that—‘(i) has as an element the use, attempted use,
Here, Nance may have been an escapee for less than 96 hours from a non-secure facility, but he did not
return voluntarily to the Jesup Camp. Instead, the United States Marshals Service had to arrest him.
or threatened use of physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.’
§ 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized
above, have come to be known as the Act’s residual clause.
___ U.S. at ___, 135 S. Ct. at 2555–56. The Court held that “imposing an increased sentence
under the residual clause of the [ACCA] violates the Constitution’s guarantee of due process[.]”
___ U.S. at ___, 135 S. Ct. at 2563. However, the Court also emphasized that its “decision does
not call into question application of the Act to the four enumerated offenses, or the remainder of
the Act’s definition of a violent felony.” Id.
The ACCA was not mentioned in Nance’s PSI, nor did Judge Wood mention this Act
during sentencing. Instead, Judge Wood determined Nance’s offense level should be increased
by five levels under the Sentencing Guidelines based on her finding that Nance used some
measure of force to effectuate his escape. Sent. Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D.
Ga. Dec. 5, 2014), ECF No. 114, p. 67. Section 2P1.1(b)(1) of the Sentencing Guidelines calls
for a five-level increase if the escape offense involved “the use or the threat of force against any
person[.]” In contrast, the ACCA’s now-defunct residual clause categorized a “violent felony”
as involving “conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii).
Thus, the ACCA’s residual clause had no bearing on Nance’s
sentence enhancement under the Guidelines, and his enhancement, which in no way was based
on the ACCA’s residual clause, remains valid in the post-Johnson landscape. What is more, the
Eleventh Circuit has determined that Johnson fails to invalidate any provision of the Sentencing
Guidelines, which are advisory in nature. United States v. Matchett, 802 F.3d 1185 (11th Cir.
2015). Mr. Higgins cannot be said to have rendered ineffective assistance by failing to raise a
non-meritorious claim on appeal. Thus, the Court should DENY this portion of Nance’s Motion.
Counsel’s Failure to Raise Officer Brown’s Inconsistent Statements
and the Government’s Related Fraud Upon the Court
Next, Nance asserts Officer Brown stated that he and Nance had gotten into a “struggle”,
whereas on another occasion, Officer Brown stated Nance pushed him. (Doc. 1-1, p.9.) Nance
contends the Government knew of the inconsistencies in Officer Brown’s statements and failed
to correct him, which caused the Court to be misled.
Nance maintains Mr. Higgins was
ineffective for failing to raise this issue on appeal pursuant to Napue v. Illinois, 360 U.S. 264
The Government responds that there is nothing inconsistent or contradictory about
Officer Brown’s statements “because each one describes what happened at a different point in
time during the entire incident between Officer Brown and Nance.” (Doc. 3, p. 15.) The
Government states Officer Brown’s testimony does not approach perjury, as there is no
indication Officer Brown had the willful intent to provide false testimony.
Government avers Officer Brown’s testimony and Probation Officer Mills’ testimony as to
whether Nance had pushed Officer Brown or simply brushed past him differ based on one
person’s mistake or faulty memory of a previous interview. The Government also avers that,
even if there were a discrepancy between Officer Brown’s testimony and that of Probation
Officer Mills, such a discrepancy was immaterial because Judge Wood found Nance had used
some force to escape.
In Napue, the Supreme Court analyzed the effect of a witness who testified that the
prosecutor had not made any promise to him in exchange for his testimony against the petitioner
and the prosecutor failed to correct that testimony the prosecutor knew to be false. The Supreme
Court determined that the failure of the prosecutor to correct the testimony of a witness he knew
to be false violated the petitioner’s right to due process, in violation of the Fourteenth
Amendment. 360 U.S. at 269–71. The Supreme Court concluded that the “false testimony used
by the State in securing the conviction of petitioner may have had an effect on the outcome of the
trial.” Id. at 272.
Here, there is no evidence that Officer Brown testified falsely or that the Government
failed to correct any of Officer Brown’s testimony it knew to be false. Instead, the evidence of
record reveals that Officer Brown testified during the sentencing hearing that he told Probation
Officer Mills that Nance had pushed him during the incident. Sent. Hr’g Tr., United States v.
Nance, 2:14-cr-6 (S.D. Ga. Dec. 5, 2014), ECF No. 114, p. 35. Probation Officer Mills testified
during the sentencing hearing that Officer Brown told him that Nance brushed up against Officer
Brown. Id. at p. 48. In addition, Probation Officer Mills testified that he originally stated in
Nance’s PSI that Nance pushed Officer Brown. Id. However, after written objections were
submitted, Probation Officer Mills submitted a revised PSI as the final PSI to the Court, and the
final PSI indicated Nance “rushed past” Officer Brown. Id. Probation Officer Mills stated he
made this revision after speaking with Officer Brown, who did not mention anything about being
pushed during their conversation. Id. at p. 49. Upon Judge Wood’s inquiry, Probation Officer
Mills testified he recommended Nance receive the five-level enhancement based on Officer
Brown having told him that he (Officer Brown) tried to restrain Nance, but Nance “resisted” and
that he and Officer Brown had a “struggle or wrestling match which basically went to the
ground. . . . Officer Brown continued to try to gain control of Mr. Nance, but [he] continued to
fight to get away from [Officer Brown].” Id. at p. 50. Probation Officer Mills also testified that
he took Officer Brown’s report from within 24 hours after the incident to establish the offense
conduct in this case, rather than his conversation with Officer Brown seven (7) months after the
fact. Id. at p. 51.
Nance’s assertions in this regard in no way approach the level of false testimony present
Not only did Officer Brown not provide the Court with false testimony, the
Government would have been under no duty to correct any testimony it knew to be false since
there was no false testimony. Additionally, even if there were a discrepancy in the accounts of
events surrounding Nance’s escape, any such discrepancy was immaterial. Judge Wood found
Nance deployed some measure of force to effectuate his escape, whether that force was a push or
simply a brush past Officer Brown. Judge Wood determined Nance’s conduct satisfied the
criterion for the five-level enhancement. This instance of a claim for ineffective assistance is
without merit, as Nance cannot show that he was prejudiced as a result of Mr. Higgins failing to
raise this issue before this Court or on appeal. Consequently, the Court should DENY Nance’s
Motion on this ground.
Counsel’s Failure to Object to the Court’s Sentencing Range/Failure to
Further Impeach Officer Brown
Nance alleges that the Court would not have imposed an upward variance had Mr.
Higgins advised the Court that Officer Brown: had brought the cell phone to Nance; had been
fired for bringing contraband to other prisoners; and was under investigation at the time of
sentencing. (Doc. 1-1, pp. 11–12.) Nance appears to state that, given this mitigating evidence,
Judge Wood would not have believed Officer Brown’s testimony that Nance pushed him, and
she would not have given Nance a higher sentence based on the five-level enhancement for use
The Government asserts Nance’s allegations are outrageous, and the timing of his
allegations is suspicious. (Doc. 3, p. 18.) The Government maintains it gave Nance a copy of
Officer Brown’s personnel file, and if these allegations were true, there would have been
something in that regard in Officer Brown’s file.
The Government also maintains Nance
testified during his Rule 11 hearing that he had no complaints about Mr. Higgins, who in turn
stated he was unaware of any impropriety involved in Nance’s case.
Government states Mr. Higgins impeached Officer Nance during sentencing by using the
information it had disclosed regarding the misuse of a credit card, and it defies belief that Mr.
Higgins chose not to raise such allegations “if they really had been extant.” (Id. at p. 19.)
Finally, the Government states Nance forfeited this argument when he failed to mention these
allegations—despite his knowledge at the time of these allegations—during his account of the
However, the Government contends Mr. Higgins did not render ineffective assistance by
failing to raise these allegations because there is no reasonable probability Judge Wood would
have lowered Nance’s sentence. First, the Government contends the five-level enhancement
would have applied even if Judge Wood disbelieved Officer Brown’s testimony that Nance
pushed him. Nance himself described getting into a “big altercation” with Officer Brown during
which he “bust[ed] loose” from the bear hug, and Mr. Higgins conceded there was a “tussle”.
(Id. at p. 20). Second, Judge Wood stated she would impose the same sentence regardless of the
Sentencing Guidelines, given the Section 3553 factors she also had to take into account.
Even if Mr. Higgins failed to raise these allegations of corruption specifically with Judge
Wood, Nance fails to establish the requisite prejudice to sustain this assertion of ineffective
assistance of counsel. During the sentencing hearing, Judge Wood found Nance used some
measure of force to effectuate his escape, which made the five-level enhancement under the
Sentencing Guidelines applicable. Sent. Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D. Ga.
Dec. 5, 2014), ECF No. 114, pp. 66–67. Even in the absence of a finding that Nance used no
force in effectuating his escape (and thus discrediting Officer Brown’s testimony, at least in
part 6), Judge Wood declared she would have imposed the same sentence upon Nance regardless
of the Sentencing Guidelines’ enhancement, given the nature of the escape offense, the need to
stop future escapes, and Nance’s background. Id. at p. 82. Therefore, Nance’s 31-month
sentence would have been imposed, regardless of the application of the five-level enhancement
under the Sentencing Guidelines. United States v. Rives, 683 F. App’x 806, 811 (11th Cir. 2017)
(quoting United States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009) (“Where a district judge
clearly states that [s]he would impose the same sentence, even if [s]he erred in calculating the
guideline range, then any error in the calculation is harmless.”)). The Eleventh Circuit affirmed
Nance’s sentence on this same basis. United States v. Nance, 604 F. App’x 918 (11th Cir. 2015).
As Nance fails to meet both prongs of the Strickland test, he cannot advance a successful
ineffective assistance of counsel claim. This enumeration of error is also without merit, and the
Court should DENY this portion of Nance’s Motion.
Nance’s Brady Claim
Nance asserts the Government knew Officer Brown was being investigated for
approaching inmates about buying contraband, yet failed to disclose this information, in violation
of Brady v. Maryland, 373 U.S. 83 (1963). 7 (Doc. 1-1, p. 10.)
Mr. Higgins argued to Judge Wood during the sentencing hearing that Officer Brown’s testimony had
been impeached because he testified to something different than what he told the Probation Officer. Sent.
Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D. Ga. Dec. 5, 2014), ECF No. 114, pp. 58–59.
This Court ruled in Nance’s criminal prosecution that the Government was not required to disclose any
further documentation from Officer Brown’s personnel file than it already had—save the documentation
regarding Officer Brown’s one-day suspension for the unauthorized use of a government-issued travel
credit card, which had already been disclosed to Nance—under Brady and its progeny. Orders, United
States v. Nance, 2:14-cr-6 (S.D. Ga. May 20 & 21, 2014), ECF Nos. 88, 89.
The Government contends Nance waived any Brady claim by pleading guilty. 8 The
Government also contends any alleged failure to disclose this information would not have
resulted in a lower sentence for Nance; thus, Nance cannot show he was prejudiced by such
failure. Finally, the Government asserts Nance was aware of the allegations against Officer
Brown at or before sentencing, and the Government cannot be accused of suppression if Nance
knew of the information or had equal access to obtaining it. (Doc. 3, pp. 22–23.)
The Supreme Court has held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87.
A Brady violation is established when a petitioner shows that: “(1) the
prosecution possessed evidence favorable to the accused, because it was either exculpatory or
impeaching, and did not disclose it to the defense; (2) the State suppressed the evidence such that
the defense did not otherwise possess the evidence and could not reasonably have obtained it;
and (3) the evidence was material, and its absence yielded prejudice.” Gary v. Hall, 558 F.3d
1229, 1255 (11th Cir. 2009). “Evidence is material so as to establish prejudice only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”
“A ‘reasonable probability’ is a probability
In United States v. Matthews, 168 F.3d 1234, 1242 (11th Cir. 1999), the Eleventh Circuit stated “the
rule that a defendant who pleads guilty waives all non-jurisdictional defenses is not absolute.” The
Eleventh Circuit declined to decide “whether a guilty plea waives a defendant’s claims under Brady, or—
assuming that a Brady claim is not waived by a guilty plea—whether the Brady material must be known
to the prosecution before the plea or merely before sentencing.” Id. The Eleventh Circuit then considered
that the guilty plea did not waive the Brady claim and that the prosecutor learned Brady information
before sentencing that had to be disclosed, the defendants’ arguments “must still be rejected”, id.,
because “any alleged error [was] harmless.” Id. at 1243. Likewise, this Court need not delve into
whether Nance waived his Brady claim by pleading guilty. Rather, the Court can dispense of this claim
by focusing on whether Nance sets forth a viable Brady violation, assuming as true the allegations that
Officer Brown was under investigation, that this information was material, and that the Government failed
to disclose that information.
sufficient to undermine confidence in the outcome.” Id. (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). “‘The mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of the [proceedings],’ does not
establish prejudice.” United States v. Brester, 786 F.3d 1335, 1339 (11th Cir. 2015) (quoting
United States v. Agurs, 427 U.S. 97, 109–10 (1976)).
Mr. Higgins was able to opine that Officer Brown had been impeached during the
sentencing hearing. Sent. Hr’g Tr., United States v. Nance, 2:14-cr-6 (S.D. Ga. Dec. 5, 2014),
ECF No. 114, pp. 58–59. Nevertheless, and as noted above, whether Officer Brown had been
impeached even further would have had no bearing on the sentence Judge Wood imposed upon
Nance. In determining Nance’s Guideline range, Judge Wood relied, in part, on facts outside of
Officer Brown’s testimony, including Nance’s own testimony, the agreed upon facts, and the
inherent necessities of those facts. Moreover, Judge Wood specifically stated that, regardless of
the resolution of the Guidelines’ objections (and, thus, the issues to which Nance claims
impeachment of Officer Brown would have been relevant), she would have imposed the same
sentence given the factors of Section 3553. Therefore, Nance has not shown any reasonable
probability that, had the Government disclosed any alleged Brady information relating to Officer
Brown, Nance’s sentence would have been any different than what Judge Wood imposed. As
Nance fails to establish the necessary prejudice to advance a viable Brady claim, by extension,
he cannot establish prejudice necessary to sustain a viable ineffective assistance claim in this
regard. The Court should DENY this portion of Nance’s Motion.
Nance’s Motion for Evidentiary Hearing (Doc. 8)
Section 2255 does not require that the Court hold an evidentiary hearing if “the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]”
Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (quoting 28 U.S.C.
§ 2255(b)). “A hearing is not required on patently frivolous claims or those which are based
upon unsupported generalizations. Nor is a hearing required where the petitioner’s allegations
are affirmatively contradicted in the record.” Holmes v. United States, 876 F.2d 1545, 1553
(11th Cir. 1989) (citation omitted). Moreover, a petitioner is not entitled to an evidentiary
hearing where he asserts “merely conclusory allegations unsupported by specifics or contentions
that in the face of the record are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559
(11th Cir. 1991) (citation omitted); see also Lynn v. United States, 365 F.3d 1225, 1238–39 (11th
Cir. 2004). Because Nance’s claims lack merit as a matter of law or are otherwise affirmatively
contradicted by the record, no evidentiary hearing is necessary.
Consequently, the Court
DENIES Nance’s Motion for Evidentiary Hearing.
Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Nance leave to appeal in forma pauperis. Though Nance
has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal
is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued. Pursuant to Rule 11 of the
Rules Governing Section 2255 cases, the Court “must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” A certificate of appealability may issue
only if the applicant makes a substantial showing of a denial of a constitutional right. The
decision to issue a certificate of appealability requires “an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). In order to obtain a certificate of appealability, a petitioner must show “that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it
to dispose of the case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196, 1199 (11th
Cir. 2000). “This threshold inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Nance’s Motion, as supplemented, and the Government’s
Response and applying the Certificate of Appealability standards set forth above, there are no
discernable issues worthy of a certificate of appealability; therefore, the Court should DENY the
issuance of a Certificate of Appealability. If the Court adopts this recommendation and denies
Nance a Certificate of Appealability, Nance is advised that he “may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.”
Rule 11(a), Rules Governing Section 2255 Cases in the United States District Courts.
Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal would not be
taken in good faith. Thus, the Court should likewise DENY in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND the Court DENY Nance’s Section 2255
Motion, DISMISS as moot his Motion for Summary Judgment, DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal, and DENY Nance a
Certificate of Appealability and in forma pauperis status on appeal. For these same reasons, the
Court DENIES Nance’s Motion for Evidentiary Hearing and DISMISSES as moot his Motion
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Nance and the United States
Attorney for the Southern District of Georgia.
SO ORDERED and REPORTED and RECOMMENDED, this 3rd day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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