Gourdine v. United States of America

Filing 11

ORDER adopting 8 Report and Recommendations, and denying a COA in this case. Signed by Judge J. Randal Hall on 08/19/2015. (thb)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

KEVIN GOURDINE,

Movant,

)
)

v.

Case No. CV615-006
(underlying CR610-001)

UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the

Magistrate Judge's Report and Recommendation, doc. 8, to which objections have
been filed.

Doc. 10.

Accordingly, the Report and Recommendation of the

Magistrate Judge is ADOPTED as the opinion of the Court.

Further, a prisoner seeking relief under 28 U.S.C. § 2255 must obtain a

certificate of appealability ("COA") before appealing the denial of his application for

writ of habeas corpus. 28 U.S.C. § 2253(c)(1)(B). This Court "must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant."
Rule 11(a) to the Rules Governing Section 2255 Proceedings.

This Court should

grant a COA only if the prisoner makes a "substantial showing of the denial of a
constitutional right."

28 U.S.C. § 2253(c)(2). For the reasons set forth in the

Report and Recommendation, and in consideration of the standards enunciated in

Slack v. McDaniel 529 U.S. 473, 482-84 (2000), petitioner Robert Alexander has
failed to make the requisite showing. Accordingly, a COA is DENIED in this case.1
Moreover, because there are no non-frivolous issues to raise on appeal, an appeal
would not be taken in good faith.

forma pauperis.

Accordingly, Gourdine is not entitled to appeal in

See 28 U.S.C. § 1915(a)(3).

The R&R advised the Court to dismiss Gourdine's third claim (claims 1 and 2

also, but he does not object to the recommendation that those be dismissed), which
asserted that "[trial] counsel . . . was ineffective for his failure to advise Gourdine

about the option of pleading guilty to count one without the plea agreement [a.k.a
pleading "straight up"], thereby denying Gourdine certain rights to appeal and
collateral attack[,] and thus rendering Gourdine's guilty plea involuntary."
at 7.

Doc. 8

Trying to skate around the R&R's recognition that he never alleged that he

would have pled "straight up" had counsel told him he could, id. at 10, Gourdine now

says he would have pled "straight up without an appeal waiver . . . with either one of
the plea agreements."

Doc. 10 at 3.

As Gourdine well knows, however, "straight up" means pleading guilty

without any plea agreement at all, not pleading to an agreement that lacks an

appeal waiver (that option was never on the table for him). See, e.g., UnitedStates

1 "If the court denies a certificate, [a party] 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) to the Rules Governing Section 2255 Proceedings.
2

v. West, 2013 WL 1798945 at * 3 (M.D. Fla. Apr. 29, 2013).

He never says he would

have pled to the former and that, as the R&R correctly recognized, is fatal to his
ineffective-counsel claim.

See Holmes v. United States, 2015 WL 402957 at * 10

(E.D. Va. Jan. 28, 2015) (no prejudice shown because movant failed to allege that he

would have pled "straight up" had he known of that possibility).
Gourdine also appears to object to the appeal waiver itself based on a U.S.
Justice Department memorandum discouraging enforcement of appeal waivers in
certain circumstances.

See doc. 10 at 3;2 see also Memorandum from James M.

Cole, Deputy Attorney General, to All Federal Prosecutors (Oct. 14, 2014), available

at

http7/pdfserver. amlaw.com/nlj/DOJ_Ineffective_Assistance_Counsel.pdf

("For

cases in which a defendant's ineffective assistance claim would be barred by a
previously executed waiver, prosecutors should decline to enforce the waiver when

defense counsel rendered ineffective assistance resulting in prejudice or when the
defendant's ineffective assistance claim raises a serious debatable issue that a court

should resolve.").

This case raises no such debatable issue. Regardless, "[t]he new

policy does not prohibit prosecutors from seeking to enforce a collateral-attack

waiver, so [Gourdine]'s contention that the policy renders the waiver null and void is

2 "On the issue of the appeal waiver; attached to Gourdine's Traverse to the
Government's Initial Response was a Memorandum By James M. Cole, Deputy
Attorney General; as to the enforcement of appeal waivers." Doc. 10 at 3.
3

unavailing." Demello v. United States, 2015 WL 4663934 at * 3 (11th Cir. August 7,
2015).

ORDER ENTERED at Augusta, Georgia, this

^
/V
&. day of August, 2015

,E J. RANBAL HALL

UNITED STATES DISTRICT JUDGE
XUTHERN DISTRICT OF GEORGIA