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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:01cr13-RH

vs. Case No. 4:05cv25-RH/WCS

GREGORY EUGENE GARDNER, SR.,

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY § 2255 MOTION

Defendant filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Doc.

208. The Government filed a response before a response was directed by the court. 

Doc. 209. 

Defendant was then directed to file an amended motion on the § 2255 motion

form currently used by the court. Doc. 210. Defendant filed the amended motion. Doc.

211. The Government filed a notice of intent to rely upon the previously filed response. 

Doc. 212. Defendant had the opportunity to file a reply but was not required to do so. 

Doc. 210. He did not reply. According to the website of the Bureau of Prisons, he was

released on March 24, 2005. Defendant has not notified the court of his change of

address but his address is now noted on the docket. 

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Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

Procedural History

Defendants Gregory Gardner and Antonio Jefferson were charged and tried

together. Prior to the first jury trial, all but counts five (against Gardner) and six and

eight (naming both Defendants) were dismissed. Doc. 83 (order granting separate

trials), p. 2. Jefferson was acquitted on count six and Gardner was granted a judgment

of acquittal on count eight. Id. The jury did not reach a verdict on count five, on count

six against Gardner, or on count eight against Jefferson, and a mistrial was declared on

those counts. Id. Separate trials were granted. Id., pp. 9-10. 

Defendant was represented by Attorney Robert Harper at both trials. Jefferson

was ultimately not tried a second time, as set forth infra. 

Following his second jury trial, Defendant was convicted and sentenced to 18

months imprisonment for one count of improper disposal of a stolen firearm in violation

of 18 U.S.C. § § 922(j), 924(a)(2), and 2. Doc. 165 (judgment). The judgment was

affirmed on appeal. Doc. 205. 

As summarized in the opinion on appeal:

Gardner was the police chief of Midway, Florida. He and the former police

chief, Antonio Jefferson, were charged with several counts alleging the

barter, sale, and disposition of stolen firearms. Gardner was convicted on

a count involving the sale of a confiscated Beretta handgun from the

evidence closet to Jefferson. The evidence indicated that Jefferson went

to the station and agreed to pay Gardner $150 for the gun. It is not clear

whether Jefferson paid Gardner on the day of the sale or at some later

date. A witness testified that after the transaction, Gardner said that the

sale "was the easiest hundred dollars he had ever made."

The sale was discovered when authorities audited the police department's

handling of forfeited evidence. The Beretta was among several firearms

missing from the evidence locker. Other items missing from the evidence

locker were found in Gardner's home. Several months later, after the

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Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

initial search of the evidence locker had been conducted, several

unnegotiated checks and $320 in cash were found in Gardner's police car. 

Gardner concedes that Florida statutes require that firearms slated for

disposal be given to the sheriff's office, which was not done. But he

argues that the statute does not impose a criminal penalty for failing to

dispose of weapons in this manner. The former mayor and city

councilwoman testified that the city of Midway had authorized Gardner to

sell items that had been forfeited in order to raise funds for the city. 

Another member of the city council did not recall any discussion about

selling forfeited property. Gardner did not document the disposal of the

Beretta on the Florida Contraband Forfeiture Reports.

Doc. 205, attached opinion, pp. 2-3 (pp. 3-4 of electronic docket).

Standard of Review

Review under 28 U.S.C. § 2255 is limited:

Courts have long and consistently affirmed that a collateral challenge,

such as a § 2255 motion, may not be a surrogate for a direct appeal. 

Because collateral review is not a substitute for a direct appeal, the

general rules have developed that: (1) a defendant must assert all

available claims on direct appeal, and (2) "[r]elief under 28 U.S.C. § 2255

'is reserved for transgressions of constitutional rights and for that narrow

compass of other injury that could not have been raised in direct appeal

and would, if condoned, result in a complete miscarriage of justice.' " 

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.), cert. denied, 543 U.S. 891

(2004) (citations and footnotes omitted). 

A claim of ineffective assistance of counsel is itself a constitutional claim and

cognizable under § 2255 whether or not it could have been raised on appeal. Massaro

v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693-94, 155 L.Ed.2d 714 (2003);

Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518

(2000) ("ineffective assistance adequate to establish cause for the procedural default of

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Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

some other constitutional claim is itself an independent constitutional claim.") (emphasis

by the Court). 

Ineffective assistance of counsel is a two part inquiry. "A convicted defendant

making a claim of ineffective assistance of counsel must identify the acts or omissions

of counsel that are alleged not to have been the result of reasonable professional

judgment," and must also "affirmatively prove prejudice." Strickland v. Washington, 466

U.S. 668, 690, 693-694, 104 S.Ct. 2052, 2066-68, 80 L.Ed.2d 674 (1984). 

In determining whether counsel's performance was deficient, Defendant must

show that "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 686, 106

S.Ct. at 2064. "The court must . . . determine whether, in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally competent

assistance." 466 U.S. at 690, 104 S.Ct. at 2066. "[B]ecause counsel's conduct is

presumed reasonable, for a petitioner to show that the conduct was unreasonable, a

petitioner must establish that no competent counsel would have taken the action that his

counsel did take." Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en

banc), cert. denied, 531 U.S. 1204 (2001). See also Fugate v. Head, 261 F.3d 1206,

1217 (11th Cir. 2001) (citing Chandler). There are no rigid requirements or absolute

duty to investigate a particular defense. Id. 

Indeed, "[c]onsidering the realities of the courtroom, more is not always

better. Stacking defenses can hurt a case. Good advocacy requires

'winnowing out' some arguments, witnesses, evidence, and so on, to

stress others."

261 F.3d at 121 (citations omitted). 

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Defendant must also demonstrate prejudice due to counsel's alleged errors. 

[A] petitioner must "affirmatively prove prejudice" by showing that

counsel's errors "actually had an adverse effect on the defense." This

requires a showing of more than "some conceivable effect on the outcome

of the proceeding." Instead, the petitioner "must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome." Although this standard is difficult to meet, it is significant that a

petitioner must show only a reasonable probability that the outcome would

have been different; he "need not show that counsel's deficient conduct

more likely than not altered the outcome in the case." When evaluating

this probability, "a court hearing an ineffectiveness claim must consider

the totality of the evidence before the judge or jury."

Brownlee v. Haley, 306 F.3d 1043, 1059-60 (11th Cir. 2002) (quoting Strickland); United

States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (quoting Brownlee). 

The court need not approach the Strickland inquiry in any particular order, or

address both prongs if an insufficient showing is made on one. 466 U.S. at 697, 104

S.Ct. at 2069. Defendant "bears the burden of proof on the 'performance' prong as well

as the 'prejudice' prong of a Strickland claim, and both prongs must be proved to

prevail." Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001), cert. denied, 535

U.S. 926 (2002). The cases which prevail under Strickland "are few and far between." 

Id. (citation omitted). 

Ground One

Defendant asserts that "counsel was ineffective by failing to investigate and

object to the prosecution's committed fraud upon the court, via perjured testimony, after

being made fully aware of such perjury" by Defendant. Doc. 211, p. 7 (capitalization

omitted). He claims that the prosecutor was in collusion with the witnesses to obtain a

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conviction. Id. Defendant asserts that the court has inherent power to grant relief at

any time due to fraud on the court. Id., p. 8. Defendant alleges perjury by specific

witnesses, discussed ahead. Id., pp. 9-18. 

As the Government points out, the alleged instances of perjury essentially reflect

Defendant's disagreement with the testimony. Doc. 209, p. 2. The witnesses were

cross examined by defense counsel, revealing inconsistencies. Id., pp. 2-3 (referencing

the transcripts).

Knowing use of false testimony is a claim independent of the ineffectiveness

claim. "A conviction will be set aside for prosecutorial misconduct where the

prosecution knowingly introduces false information and there is a reasonable likelihood

that the false testimony prejudiced the defendant's rights." United States v. Caporale,

806 F.2d 1487, 1518-19 (11th Cir.1986), cert. denied, 483 U.S. 1021 (1986) (citations

omitted), see also United States v. Alzate, 47 F.3d 1103, 1109-10 (11th Cir. 1995)

(where a prosecutor knowingly used perjured false testimony or failed to correct what he

subsequently learned was false, the evidence would be considered material "if there is

any reasonable likelihood that the false testimony could have affected the judgment of

the jury," which is equivalent to the "harmless beyond a reasonable doubt standard.")

(citations omitted).

 To obtain a reversal on the grounds that the government relied on

perjured testimony, the following must be shown: (1) the contested

statements were actually false, (2) the statements were material, and (3)

the prosecution knew that they were false. 

United States v. Bailey, 123 F.3d 1381, 1395 (11th Cir. 1997) (emphasis added, citation

omitted). A memory lapse, unintentional error, or oversight is not perjury. Id., at 1395-

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96, citing United States v. Payne, 940 F.2d 286, 291 (8th Cir.1991) (recognizing "that it

is not enough that the testimony is challenged by another witness or is inconsistent with

prior statements, and not every contradiction in fact or argument is material," citation

omitted). 

The jury in this case was instructed as to how to determine the credibility of

witnesses:

Now, in saying that you must consider all the evidence, I do not mean that

your must accept all the evidence as true or accurate. You should decide

whether you believe what each witness had to say, and how important that

testimony was. In making that decision you may believe or disbelieve any

witness, in whole or in part. Also, the number of witnesses testifying

concerning any particular dispute is not controlling. 

In determining the believability of any witness and the weight to be given

to his or her testimony, you may properly consider how the witness acted

as well as what the witness said. Some things you should consider are:

(1) Did the witness have an adequate opportunity to see

and know the things about which the witness testified?

(2) Did the witness seem to have a good memory?

(3) Was the witness honest and straightforward in

answering the attorneys' questions?

(4) Did the witness have an interest in the outcome of the

case?

(5) Did the witness's testimony seem reasonable,

considered in the light of all the evidence in the case and in

the light of your own experience and common sense? 

(6) Did the witness do or say something at some other time

inconsistent with the testimony the witness gave before you

during the trial?

Doc. 137, pp. 5-7. 

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1

 Presumably the Gayle G. Livings referenced by Defendant, the Gail Livings

mentioned in the transcript, and the Gayle Graham who sued Defendant Gardner and

others in two lawsuits (discussed ahead) are one and the same person. 

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

Steve Sweet

Defendant claims that Sweet's testimony was perjured. Doc. 211, pp. 9-12. 

Sweet testified that he was present when Defendant sold the Beretta firearm to

Jefferson, and that he heard Defendant say it was the easiest hundred dollars he ever

made. Id. Defendant claims that counsel knew these were lies, and Defendant told him

that co-defendant Jefferson's testimony would prove they were lies, but counsel failed to

investigate. Id. Defendant alleges that after trial, Jefferson met with prosecutors and

said that Sweet lied. Id. 

Defendant also alleges that Sweet had an affair with Officer Gayle G. Livings1

while Defendant was Police Chief, and animosity arose as Defendant would not testify

in her defense to public assistance fraud. Id., pp. 10-11. Sweet was allegedly

instrumental in the filing of sexual harassment and discrimination charges by Livings

against Defendant. Id. Sweet was also allegedly "instrumental in the racial remarks

made by Gaston Gibbons the owner of a barber shop on North Monroe Street

Tallahassee, Florida prior to this criminal case." Id., p. 11. Gibbons allegedly shoved

Defendant, there was a physical altercation, and Gibbons "said that niggers were not

allowed." Id. Defendant claims that Sweet and Gibbons were friends, and "Mr. Sweet

was retaliating against Mr. Gardner because of Mr. Gibbons['s] prejudices against Mr.

Gardner." Id.

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No error or prejudice has been shown as to Defendant's claim that Sweet's

testimony was proven to be false by Jefferson's post-trial testimony. Jefferson was not,

as addressed in the motion for new trial, available as a witness at trial. Indeed,

Jefferson only partially waived his Fifth Amendment privilege for purposes of testifying

at the hearing on Defendant's motion for new trial as to count 6, but the court

determined he probably would not have testified at a retrial because he would have then

invoked his Fifth Amendment privilege. Doc. 158 (order denying motion for new trial),

pp. 2, 4-5, and n. 3, 12, and 18-20 and n. 13. The court noted that Sweet's testimony

was not very credible even without impeachment by Jefferson; the $100 figure seemed

wrong from Defendant's own documentation, and there was no reason Defendant would

make such a statement to Sweet. Id., pp. 8-9, 17. "[I]t is doubtful that Mr. Gardner's

conviction had anything to do with Mr. Sweet's testimony." Id., p. 17. Defense counsel

noted the "quickest hundred dollars" statement by Sweet in his closing argument to the

jury, and said "[i]f you're going to believe Sweet and a hundred dollars, why do we got

$150?" Doc. 202 (transcript of closing arguments, referring to the written notation of

$150), p. 25. Government counsel responded "if it's a hundred bucks, why does the

notation on the papers written by this man here say 150? I don't know." Id., pp. 30-31. 

The fact that the court considered Sweet's testimony not very credible does not

mean that it was false or, more to the point, that it was known by the Government or

should have known by counsel for Defendant to be false. As set forth above, the fact

that testimony contains inconsistencies or is contradicted or challenged does not mean

it is perjured. If the court found it not very credible, the jury may well have reached the

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2

 Rule 608(b) provided in relevant part:

Specific instances of the conduct of a witness, for the purpose of attacking

or supporting the witness' credibility, other than conviction of crime as

provided in rule 609, may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if probative of truthfulness or

untruthfulness, be inquired into on cross-examination of the witness (1)

concerning the witness' character for truthfulness or untruthfulness, or (2)

concerning the character for truthfulness or untruthfulness of another

witness as to which character the witness being cross-examined has

testified. 

Fed.R.Evid. 608(b) (2001).

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

same conclusion. But it was for the jury to determine credibility, and to believe or

disbelieve some or all of Sweet's testimony, as instructed by the court. 

Defendant offers no support for his claim that Sweet was biased against him

because Sweet had had an affair with Livings, who was biased against him. Counsel

asked Sweet on cross examination if he had a "good relationship or poor relationship"

with Livings, and Sweet said he "didn't really know her at that time." Doc. 194, p. 61. 

When counsel asked whether he "later came to know her very well," an objection was

sustained. Id. Sweet said Livings had a good relationship with Defendant at the time

(relevant to the charges here), but the relationship later deteriorated. Id., pp. 61-62. 

Counsel started to ask, "[a]nd did later she file a – " to which an objection was made

and sustained. Id., p. 62. The court announced recess, and told defense counsel, "the

questions about Ms. Livings seemed to run afoul of Rule 608(b)." Id.2

 Counsel said he

understood, "and I don't argue that point right now, Your Honor." Id., p. 62. Counsel did

call Harold Smith, a Midway Police Officer during the relevant testimony, as a defense

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3

 Defendant's wife, a Leon County Sheriff's Officer, told the court that Defendant

was "a victim of a hate crime. My husband was attacked because he's a black man that

went into a barber shop on North Monroe Street, the Northside Barber Shop . . . he was

attacked because he was in that barber shop, and that's how this case started." Doc.

186, p. 38. She said "Agent Crummett and Maurice [presumably Meresse] went there

and did an investigation and did nothing about it. Agent Steve Sweet was a friend of

this guy that owned the barber shop that attacked my husband. This man gave Steve

Sweet money and also sold him a phone, which is documented." Id. She said that

Crummett, Meresse and Sweet "befriended Gail Livings," and "Maurice and Crummett

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

witness. Doc. 195, p. 300. Smith said he knew Sweet and did not think he and

Defendant "had a good relationship. He's just another individual that came by." Id. 

Clearly, counsel was aware of Sweet's possible bias through his alleged

relationship with Livings, but after the objection was sustained, could not pursue it. Had

the court allowed further inquiry along this line if pressed by counsel, which has not

been shown, the jury might have found Sweet less credible. But this would also have

opened the door regarding the discrimination suits filed against Defendant by Livings. 

Such information would more likely have been prejudicial than helpful to Defendant, and

it certainly has not been shown that no reasonable counsel would have forgone this line

of inquiry. In any event, Defendant has not shown how his attorney could have

persuaded the court to permit further inquiry. 

Defendant has not explained how or why Sweet was involved in the use of racial

slurs by someone else, or how counsel could have used this information to impeach

him. Indeed, Petitioner has not shown any support for the purported barber shop

incident, about which his wife complained to the court at sentencing. Doc. 186, pp. 38-

40. Her allegations, that this prosecution was a hate crime against Defendant because

"he's a black man that went into a barber shop,"3

 were "vigorously, vigorously denied by

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assisted Gail Livings in filing a sexual harassment lawsuit on my husband. Then they

assisted in having my husband arrested on this charge with the help of Steve Sweet

and Gail Livings." Id., pp. 38-39. She knew "my husband selling those guns was

wrong, but I also know that he did that under the guidance of Tony Jefferson," and they

had both "believed in Tony wholeheartedly." Id., p. 39. She said when the charges

were filed against both men she told Jefferson, "You know, Tony, you're in this also. 

But they don't want you. They want my husband because of an incident that happened

at that barber shop on North Monroe Street." Id. 

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the prosecution." Id., p. 41. The court responded to the "serious allegations about the

motivation of the prosecution and the handling of the prosecution," and the suggestion

"that this was selective prosecution." Id., p. 46. While "[i]t would be selective

prosecution if there was an indication that the government had information that anybody

else sold a firearm out of trust and was allowed to get away with it," the court was "not

aware of anything to suggest that ATF or the prosecutor's office knows about someone

else doing this." Id. There was no indication that the Government "decided to go easy"

on Jefferson, who had been indicted and tried once. Id. Before retrying him the second

time, "[t]hey determined information that there had been incorrect testimony given, false

testimony given, and the government properly chose not to present that again and

made the call that there was not evidence that would – from which they could prove

beyond a reasonable doubt that Mr. Jefferson committed an offense. At that point what

one would expect a prosecutor to do is not go forward. And the government made that

choice. Beyond that, I don't know what happened at a barber shop." Id., pp. 46-47. 

As of September 4, 2001, the Government was prepared to go forward against

Jefferson. See doc. 115 (order setting separate trials for both defendants, with jury

selection to be held on September 4, 2001, and Jefferson's trial to proceed first). Jury

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4

 As addressed infra, Defendant asserts selective prosecution (within his claims

regarding Cecil Howard), claiming that Havana Interim Police Chief Etherton – a white

male – was not prosecuted for similar offenses. 

5

 Defendant refers to Merressee. The court uses the spelling from the transcript,

where Mr. Meresse spelled his last name for the record. Doc. 194, p. 20. 

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selection commenced for Jefferson's second trial on September 4, 2001. Id.; see also

docket entry of that date (reflecting voir dire begun as to Defendant Jefferson); doc. 193

(transcript of attorney conference and pending motions), pp. 15-17 (reflecting jury

selection held but not transcribed; also that "Mr. Gardner was not here for part of the

jury selection, which dealt explicitly with Mr. Jefferson, but also dealt with [Gardner's]

potential jurors," though his counsel was present). 

On September 7, 2001, the Government filed a motion to dismiss the indictment

against Jefferson. Doc. 126. This was based on recently received evidence that

undermined the Government's theory that Jefferson knew a Glock pistol was stolen, as

well as "documents and information which cause concern about the credibility of the

previous testimony of a government witness which was important to the government's

case. This witness did not testify during defendant Gardner's re-trial." Id., p. 2

(emphasis added). 

In summary, Defendant's claims of bias and maliciousness in his prosecution are

unsupported. Defendant has not identified error of counsel or prejudice with respect to

cross examination or impeachment of Sweet.4

 

William Crummett and Ray Meresse5

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6

 The Albert case is noted numerous times in the record. There was a seizure

involving a Metericus Albert along with others with the last name of Albert, and it was

commonly known as the Albert case. Doc. 194, pp. 74-75 (testimony of Cecil Howard,

who acted as attorney for the city from 1992 until 2001). 

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

Defendant asserts that ATF Agent Crummett and FDLE Agent Meresse, acting

as lead agents in the federal and state investigations, committed perjury. Doc. 211, pp.

12-13. Specifically, Crummett testified that Defendant fabricated the forfeiture report for

the Beretta, and admitted to him that he fabricated that and the memorandum regarding

lending another firearm to Jefferson. Id., p. 12. Defendant asserts that Meresse's

testimony corroborated Crummett's allegedly perjured testimony. Id. Defendant claims

this testimony was perjury and that he so advised counsel, who failed to investigate. 

Id., pp. 12-13. That the testimony was perjury was, he claims, was established by

Jefferson's subsequent proffer. Id., p. 13. 

Meresse testified that he was an inspector with the FDLE Office of Executive

Investigations, and was previously a special agent. Doc. 194, pp. 21-22. He worked

with Crummett on the joint investigation in this case. Id. He compared a 1997 FDLE

audit for the Midway Police evidence room with an audit done by ATF inspectors on

August 1, 2000. Id., p. 23. He identified firearms taken from a drug seizure in the Albert

case in January of 1998. Id., pp. 23-26.6

 A comparison of the 1997 and 2000 audits

uncovered in excess of 20 missing firearms for which there were no disposition records. 

Id., pp. 26-27. He said Defendant became the Chief of Police in August or September

of 1998. Id., p. 27. 

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7

 Since exhibits were referenced at trial sometimes only by the number, the court

has referenced the Government's exhibit list for trial (doc. 135) to identify some exhibits

discussed in the testimony. 

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

On August 1, 2000, Meresse participated in the search of Defendant's vehicle, in

which was found the Albert case file, boxes of documents, and a briefcase with a City of

Midway forfeiture account book containing cash and unnegotiated checks. Id., pp. 28-

29. There was a check for $55 from Charles Devier dated September 21, 1998, a

check for $150 from Calvin Black dated April 27, 2000, and a check for $50 from

Ulysses Jenkins dated March 31, 2000. Id., pp. 29-30. Meresse thought there were

three $100 bills, and one or two $20 bills, for a total of $320 or $340 in cash. Id., p. 30. 

Meresse was also there when the search warrant was executed on the police

department, and described the premises as "like a double-wide mobile home

permanently installed on the property," and said the evidence area was a closet. Id.,

pp. 31-32. He said the evidence area had an alarm, and only the police chief had the

code for the alarm. Id., pp. 36-37. 

Agent Crummett said he heard Meresse's testimony comparing the 1997 audit

and 2000 search, and Crummett said he asked Defendant about the missing 27

firearms. Id., pp. 203-204. Defendant told him that he did not sell the firearms and he

did not know what happened to the money for the firearms sold by Jefferson. Id., p.

204.7

 

Crummett identified the Beretta as made outside the United States. Id., p. 166. 

He said in the search of Defendant's vehicle, they recovered Exhibit 12, the Florida

Contraband Forfeiture Semiannual Report for September 1, 1999, through March 31,

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8

 Crummett said the interview process with Defendant was over the course of

several meetings. Doc. 194, pp. 207-212, 219-221 (cross examination). 

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

2000, which had an original signature. Id., pp. 172-173. The copy submitted to FDLE,

admitted as Exhibit 10, appeared to be a copy of this document. Id., p. 173. Crummett

identified another document which appeared to be the same as Exhibits 10 and 12, but

with a discrepancy, as found in Defendant's vehicle. Id., identifying Ex. 13. The report

that appeared to be the altered or amended report had not been submitted to the FDLE. 

Id., pp. 176-177. The copy received at FDLE, Exhibit 10, contains no entry for sale of

proceeds or forfeited cash, but the one found in the search, Exhibit 13, did have such an

entry. Id., pp. 193-194 (discussing Exs. 10, 12 and 13). Defendant told Crummett that

the original showed a zero amount because Jefferson told him they did not need to put

amounts in those columns. Id., p. 194.8 On the back of Exhibit 13 there was

handwriting for various amounts which came to $685, but Crummett did not find $685 in

the form of checks or cash. Id., pp. 194-195.

Crummett said he asked Defendant about Exhibit 23, and Defendant said it was

drafted at a much later date than reflected on the document. Id., p. 179; see also doc.

135, p. 2 (exhibit list, identifying Ex. 23 as "Midway Police Department memo, dated 11

August 1998"). He said Defendant told him:

He, along with this document and other documents, he was creating

documents to show sales of items that came from the police department,

trying to show that certain items were the – where the certain items went

to and who they went to.

. . .

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And he was collecting money and checks from individuals to dump in the

asset forfeiture account, and he was amending or modifying the

semiannual report to reflect the money that would go into that account. 

Id., pp. 179, 195. 

When asked why Defendant would tell him he made a record of the items sold,

Crummett said Defendant became aware of the investigation after Sheila Thomas was

interviewed in April of 2000. Id., pp. 179-180. He said Defendant told him he never

sold any firearms, and never made deposits into the asset forfeiture account or other

city accounts. Id., p. 181, 183. Defendant told Crummett that Jefferson sold the

firearms, and Defendant was not aware of Jefferson depositing the proceeds to the

forfeiture account or what happened to the money. Id., p. 181. Crummett identified a

number of the documents found in Defendant's car that he discussed with Defendant,

and said, "I suggested to him that these documents were generated after him finding out

about the investigation. He confirmed that." Id., pp. 181-185. 

He agreed with me that he knew about the investigation; that he was

trying to come up with figures of items he sold. He couldn't remember

how much he sold the items for. He was trying to recover some of the

money from the individuals he sold the items to. He was trying to get new

checks, because the other checks were too old to negotiate, so he could

collect all of the money and document the sales and put the money into

the asset forfeiture account. 

Id., p. 186. Crummett said he suggested to Defendant that checks had not previously

been negotiated, and he said Defendant agreed, that if the money was deposited then

all the money associated with the sale would have to be deposited into the asset

forfeiture account. Id., pp. 188-190. As for the money Defendant said he was collecting

for items previously sold, Crummett said Defendant did not explain why he had not

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collected the money at the time of the sale. Id., p. 205. On cross examination,

Crummett agreed that it was fair to say that Defendant was in the process of trying to

collect the funds from the sale of the firearms and balance the books. Id., p. 221. 

Counsel argued in closing that, as Crummett said, "it's uncollected money that's

still out there for personal effects, not a dollar of an unaccounted money for the

firearms. Prove me wrong beyond a reasonable doubt. You can't do it. . . . And the

government hasn't done it." Doc. 202, p. 24. He argued "that the case of the

government would be significantly stronger had we had Mr. Crummett corroborated by

Mr. Meresse. The best of all worlds, there would have been a tape. The best of all

worlds, there would have been an affidavit." Doc. 202, p. 26. Instead, counsel

asserted, "we've got one officer against another officer, and one time he said he didn't

sell any guns and the next time he [did] sell some guns. I suggested to him that he was

covering up." Id. Counsel suggested to the jury that Defendant "was advancing items

and collecting the money after the fact. I submit to you, that's not a federal crime." Id. 

In summary, Defendant's counsel argued from the evidence and the credibility of

witnesses was left to the jury to decide. Defendant has not shown that the officers

committed perjury, or identified any other impeachment material or argument counsel

could have used to undermine their testimony. Defendant has not shown that his

attorney could have done anything other than what he did at trial. Neither error nor

prejudice is shown. 

Trish Hopson

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Defendant alleges that Hopson, who worked in finance and accounting for FDLE,

lied about a phone conversation she had with Defendant before trial. Doc. 211, pp. 13-

14. Defendant said he contacted Hopson to discuss the property from the Albert case,

and he explained to her that some property had been disposed of and not accounted for

in the forfeiture report, and he explained why a report had not been done. Id., p. 13. 

Defendant asserts that she advised that all he could do was send her an amended

report. Id., p. 14. Through her testimony, Defendant claims, "the government

attempted again to solicit an alleged cover-up of the report by Mr. Gardner." Id.

Defendant says he told counsel that telephone records would show that Hopson

committed perjury. Id.

Hopson testified that Exhibit 10 was the copy she received at FDLE, and it bore

her handwriting correcting the date of the reporting period. Id., pp. 136-137. There

were no forfeitures reported during that time. Id., p. 137. She said that she did not

receive a copy of Exhibit 13 for the same period, the amended report which reflected

sale proceeds. Id. There were no notations on the backside of Exhibit 10, but there

was an itemized list on the back of Exhibit 13. Id., p. 138. 

On cross examination, Hopson said she had conversations with Defendant on

occasion, but did not recall Defendant calling to ask for advice on the forfeiture report. 

Id., p. 138. She thought it was possibly a year or two since she talked to Defendant,

and she had no notes of the conversation. Id., pp. 138-139. She did not recall

Defendant saying that Jefferson incorrectly completed the form, or that he said he

talked to Howard, or that she told Defendant to file an amended report. Id., p. 139. 

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Defendant has not shown Hopson's testimony was false. He has not identified

anything else counsel could have offered by way of impeachment or argument to

undermine Hopson's lack of recollection.

Jim Godwin

Defendant claims that Gadsden County Deputy Sheriff Godwin falsely testified

that all agencies in Gadsden County were required to deliver confiscated firearms to the

Sheriff. Doc. 211, pp. 14-15. Defendant claims that the Government used this to show

that the regular procedure was not followed by Defendant. Id., p. 15. Godwin also

allegedly lied about talking to Defendant regarding firearm disposal procedures. Id. He

asserts that had counsel "investigated other police department procedures," he would

have been able to shown that the procedures described by Godwin were not routinely

applicable. Id. 

Godwin testified that, during the relevant period, he was the primary custodian of

evidence held by the Gadsden County Sheriff's Department and maintained custody of

items submitted to the department from other police departments in Gadsden County. 

Doc. 194, p. 38. He said that pursuant to Florida Statute, police departments "were

required to turn over seized weapons to the sheriff's department, which would in turn

destroy the weapon." Id., p. 39. His understanding was that only the sheriff could

dispose of a weapon. Id. Godwin said he had conversations with Defendant about law

enforcement, but did not recall any regarding the disposition of firearms. Id. He did not

recall, during the time that Defendant was police chief, that any firearms were turned

over to the sheriff by the City of Midway for disposition. Id. 

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On cross examination, Godwin said that the cities of Havana and Quincy had

turned over firearms to the Gadsden County Sheriff during that period, but Midway,

Gretna, and Chattahoochee had not. Id., pp. 40-41. As a matter of state law, Godwin

said, he could not have refused firearms turned over for disposition. Id. Godwin was

not aware of any policy or procedure which would allow a police department to sell

seized firearms to private citizens, or to take seized items for personal use. Id., p. 44. 

Godwin assumed the policy was a combination of state statute and departmental policy,

but there was no formal rule adopted by the sheriff. Id., p. 41. Their policy was that an

agency would turn over weapons with an inventory list. Id. Godwin would check to

make sure the weapons matched the inventory list, and "I would include that [list] in the

destruct order that was signed off by the state attorney and the judge, and then they

[the weapons] would be destroyed." Id., p. 42. This was not a published policy, and he

did not know of any training or instruction explaining this to police chiefs. Id. The

destruct order would include the relevant case number. Id. If there was someone the

weapon should be returned to they would attempt to make contact with that person. Id.

Suitable firearms could be put back into use by law enforcement, but in his tenure

Godwin not seen any come through that were suitable. Id., pp. 43-44. 

Defendant has not shown that Godwin's testimony was false or even inaccurate

as a matter of Florida law. Indeed, the jury was instructed that, under Florida law, "[a]

city police department may not properly dispose of firearms except by delivering the

firearms to the county sheriff's department for disposition by the sheriff's department." 

Doc. 137, p. 11. See FLA. STAT. § 790.08 (regarding disposition of weapons seized

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9 See also FLA. STAT. § § 705.101 et seq. (regarding lost or abandoned property,

including unclaimed evidence) and 932.701 et seq. (the Florida Contraband Forfeiture

Act). 

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

upon arrest).9 Finally, Defendant has come forward with no evidence that the cities of

Havana and Quincy did not turn over firearms to the Gadsden County Sheriff. 

Cecil Howard

Cecil Howard was an attorney for the City of Midway. Doc. 211, p. 15. 

Defendant asserts that he talked with Howard about this case, and told Howard that

Jefferson had said a forfeiture report was not necessary in the Albert case and the

forfeiture proceeding was never finalized. Id., pp. 15-16. Howard allegedly told

Defendant that a forfeiture report was necessary, which prompted Defendant to contact

Hopson. Id., p. 16. Howard allegedly committed perjury in denying this conversation

with Defendant at trial, but counsel would not investigate it. Defendant claims that,

according to Albert's attorney, "neither Mr. Jefferson nor Mr. Howard filed the proper

forfeiture report upon the seizure of the said rudimentary firearm mandated by the

seizure procedures." Id., p. 16. 

Within this claim, Defendant contends that he himself was the victim here. Id., p.

17. He asserts that the law enforcement communities in Midway and Gadsden County

were prejudiced against him due to his race, and due to sexual harassment allegations

made against him by Livings and his refusal to testify for Livings in an FDLE civil

disciplinary proceedings. Id., p. 16. Defendant asserts selective prosecution because

Lance Etherton, while Interim Chief of Police in Havana, Florida, also in Gadsden

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10 The court considers this claim as pertaining to the claim of ineffectiveness as

to witness Howard. It is noted that a claim of selective prosecution based on Etherton

being similarly situated and not prosecuted was never presented and is procedurally

defaulted. The court specifically noted at sentencing that while there might be selective

prosecution if "anybody else sold a firearm out of trust and was allowed to get away with

it," the court was "not aware of anything to suggest that ATF or the prosecutor's office

knows about someone else doing this." Doc. 186, p. 46. Etherton was not identified at

that time. Thus, the court cannot hold an evidentiary as to this to determine whether

Defendant's allegation is true. Still, as noted above, Godwin testified that firearms were

forfeited from Havana, Florida, and Defendant has not come forward with competent

evidence to the contrary.

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

County, disposed of several firearms as alleged in this case but he is a white male and

was never federally investigated or indicted. Id., pp. 16-17.10

Howard testified that, as the attorney for the City of Midway, he talked to

Defendant about the disposition of property seized in the Albert case. Doc. 194, pp. 73-

74. Howard said he was asked how to dispose of the firearms, and recalled saying to

"[j]ust follow the procedures set forth in the statute." Id., pp. 74, 77. He did not recall

following through or taking further action on the seized property. Id., p. 75. 

Howard said he worked part time as attorney for the City of Midway, his office

was in Tallahassee, and at some point he began going to Midway on Wednesday

mornings. Id., p. 76. Once property was seized, the department, usually through the

chief of police, would send Howard the documents and he would begin the actual

forfeiture process. Id. He did not recall if it was with regard to the Albert or another

case that part of plea agreement was that items would be forfeited. Id., p. 77. He did

not recall who was the police chief at the time of the plea and forfeiture in the Albert

case. Id. He recalled a discussion with Defendant about disposing of personal effects,

cars, and a firearm in the Albert case. Id., pp. 77-78. 

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Howard remembered an attorney for one of the Alberts (possibly Metericus

Albert), and said that there was some agreement to forfeit items and give some back. 

Id., p. 78. He recalled Defendant saying he had spoken to someone with FDLE

regarding the reporting requirements, but he never saw the document and was not sure

how the information was reported to FDLE. Id., p. 78. Howard did not advise

Defendant how to fill out the forms or comply with the regulations, and thought that

Defendant either had already called someone at FDLE or had the name of a contact

person there. Id., pp. 78-79. He did not recall any city policy on disposal of seized

property. Id., p. 80.

In summary, Defendant has not shown that Howard's testimony was false and he

has not identified how counsel could have further impeached Howard or undermined his

credibility. Defendant has not established error of counsel or resulting prejudice. 

Indeed, it does not seem that Howard's testimony was particularly harmful to Defendant. 

He recalled some discussion with Defendant about the property, said he never told

Defendant how to fill out the forms, confirmed Defendant's conversation with the FDLE

about the procedures to follow, and could recall no city policy on the subject. For all of

these reasons, ground one is without merit. 

Ground Two 

Defendant claims that counsel was ineffective in failing to investigate and call

material witnesses for the defense. Doc. 211, pp. 3, 18-24.

Antonio Jefferson

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11 It is judicially noted from an article in The Tallahassee Democrat available on

the newspaper's website that Sheriff W. A. Woodham passed away in April, 2005.

Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

Defendant claims that Jefferson, as codefendant, was an essential witness and

made a proffer after trial that Defendant did not fabricate the documents. Doc. 211, p.

19. Defendant alleged that counsel failed to call or subpoena Jefferson until after trial,

when it was too late. Id., pp. 19-20. This claim is without basis in light of Jefferson's

assertion of his Fifth Amendment privilege as noted above. See also doc. 158, p. 12

(finding that Defendant "diligently sought to present Mr. Jefferson's testimony at trial but

could not do so because, as of that time, Mr. Jefferson had made clear that, if called to

testify, he would invoke his Fifth Amendment privilege."); doc. 193, pp. 12-14, 39-40

(reflecting that Jefferson was subpoenaed by Harper, but Jefferson's counsel indicated

he would invoke the Fifth Amendment and Harper would not require him to be called to

the stand to invoke the right as to each question). 

Sheriff Woodham

Defendant claims that Gadsden County Sheriff Woodham could have testified

that he informed Defendant and Jefferson that the Sheriff's office had no room to store

the firearm, and gave them authority over it, and yet was instrumental in seeing that

Defendant was prosecuted for it. Doc. 211, p. 20. His testimony purportedly would

have shown that the policy regarding seized firearms was relaxed until there was

animosity toward Defendant.11 Id., pp. 20-21. 

Defendant does not proffer any other specifics and did not provide an affidavit

from Woodham. It seems unlikely that Woodham would have so testified given the

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testimony of Godwin, who was the primary custodian of the evidence submitted to the

sheriff as set forth previously. It also seems unlikely that Woodham would have said

that he or his office was instrumental in having Defendant prosecuted, or that the

firearm policy was relaxed at the time that Defendant was involved with the firearm. 

Further, counsel was able to make the point that Defendant had been (or at least

believed he had been) authorized to handle the property. 

Counsel argued that Defendant sought advice on how to comply with disposition

of evidence. Doc. 201, p. 9 (opening argument). He also called various defense

witnesses. 

Allison Burns-Williams, a council person with the City of Midway during the

relevant period, testified that Defendant had come to the council complaining about

staffing and funds, and expressed concern that there was nowhere to keep confiscated

property. Doc. 195, pp. 261-262. She said the council gave Defendant authority to

develop a system to house the confiscated guns and other items. Id., p. 262. She said 

Defendant told the council that the previous administration confiscated so much

property that he wanted to have a sale to get rid of it. Id., pp. 263-264. 

Burns-Williams said the council asked Defendant to check with the sheriff's

department in Gadsden County or the City of Quincy, and "Gadsden County" "often told

us" that Midway was an independent municipality "and we had to put our own thing into

place." Id., pp. 264, 269. She said the council gave Defendant the authority to follow

through with what needed to be done to dispose of confiscated property and perhaps

generate revenue back into the city. Id. 

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Burns-Williams said that Defendant would bring things to the council that had

been seized, and believed that was a way to generate money for the department. Id.,

pp. 271-272. She said that there were problems getting the police cars fixed, and she

did not know what he and the city manager agreed on. Id., p. 273. They did have

procedures in place but, at the time, "Midway was truly in the red, and I do know that

our city manager gave him authority to do – to go ahead and do some things that

needed to be done." Id. She identified a document she had seen (or similar to one she

had seen) at a council meeting regarding the handling of seized property, and said it

would have been presented to the council by Defendant. Id., pp. 275-278. She said the

chief would sometimes have to pay for police car repairs out of his pocket, or have the

work done and hope the mechanic would let him pay later. Id., pp. 279-280. 

Similarly, Ronald Colston, mayor and member of the city council for the relevant

period, testified that Defendant would report to the council and advise of confiscated

property. Id., p. 283, 285-286. He did not specifically recall Defendant reporting on the

sale or disposition of seized property. Id., p. 286. He said that space shortages were

more a concern of the city manager and police chief than the council, which was not

involved in daily operations. Id. He recalled the evidence room but not any written

policy, and recalled reports on police vehicles requiring repair. Id., pp. 287-288. 

In summary, Defendant has not established that no competent counsel would

have failed to call Sheriff Woodham. His attorney was able to provide testimony

through Burns-Williams implying that the Gadsden County Sheriff's office had told the

City of Midway that it was an independent municipality and it had to establish its own

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Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

procedures for dealing with forfeited property. Particularly in light of the other testimony

elicited by counsel, Defendant has not shown that failure to call Woodham prejudiced

his defense.

Barbara Hobbs

Defendant claims that Hobbs, counsel for Metericus Albert against the City of

Midway, could have testified that she discovered that the proper forfeiture report on the

particular firearm had not been filed by Jefferson or Howard. Doc. 211, p. 21. She

purportedly could have testified that when Defendant became chief of police he "walked

into the inadequacies of the former administration, who turn[ed] around and set him up

for the blame." Id. 

 That a forfeiture report had not been submitted by anyone was not in dispute. 

The problems in both administrations were also noted. See doc. 195, pp. 263-264

(testimony about all the property confiscated by the previous administration which

needed to be moved), pp. 289-294 (testimony that when the financial officer began in

April of 2001, the records were not in good shape). There is no showing that Hobbs

had any competent new evidence that Defendant that would have been useful in his

defense. Ineffectiveness of counsel is not shown. 

William Dance

Defendant claims that former Gadsden County Deputy Dance could have

testified that he was there when Defendant wrote the memorandum lending Jefferson

the Glock firearm. Doc. 211, p. 22. His testimony allegedly would have proven that

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Defendant had no intention to fabricate forfeiture documents, and thus would have

exposed Crummett's testimony as perjury. Id., p. 22. 

Dance was called as a defense witness by Jefferson at the first trial. He was

present at the police department in January of 2000 when Defendant Gardner (then

police chief) offered to loan Jefferson a Glock Model 19 firearm to use as his service

weapon. Doc. 73, pp. 649-650. Dance identified information reflecting receipt of the

Glock in a memorandum dated January 25, 2000, but testified that he did not see a

document that day. Id., pp. 653, 660-661, 666. He heard Defendant say that

paperwork would need to be drawn up, but for Jefferson to go ahead and use the Glock

as long as he needed it. Id., pp. 661, 664-665. 

That paperwork was prepared at the same time as the corresponding transaction

in one instance, even if shown, does not contradict evidence that this was not done for

other transactions. Moreover, Dance could not establish that the paperwork for the

Glock was prepared at the time that Defendant loaned Jefferson the firearm because he

witnessed only the handing over of the firearm. Error of counsel is not shown. 

Ground Three

Defendant asserts ineffective assistance of counsel for failing to seek recusal of

Judge Hinkle in this case, as he was assigned to the sexual harassment and

discrimination cases filed against Defendant by Livings. Doc. 211, p. 24. Defendant

claims the records "clearly show" bias against him by the judge, and this may have

been due to the other case. Id. To show bias, Defendant references the limitation of

defense counsel's questioning of Sweet in cross examination, and claims the court

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made an unsupported explanation that Sweet may have been in another room. Id., p.

25. Defendant claims that the judge even acknowledged that some of the witnesses

committed perjury. Id., pp. 25-26 (citing p. 47 of the sentencing transcript). He also

asserts that the judge was biased due to publicity about the case. Id., p. 26. 

Defendant further asks that the assigned district judge recuse himself from these

§ 2255 proceedings, because of his bias. Id., p. 27. This is a matter for the district

judge to address, along with the underlying claims of prejudice at the time of trial. For

purposes of this report and recommendation, however, Defendant has not shown error

of counsel or prejudice for failing to file a motion to recuse. 

The district judge assigned to these proceedings was assigned to two cases,

both styled Gayle Graham v. City of Midway, et al., in which Defendant Gardner was

named as a defendant. They were assigned case numbers 4:00cv100-RH and

4:00cv413-RH, filed pursuant to 42 U.S.C. § § 1983 and § 2000, respectively. In both

cases the parties reached a settlement resulting in dismissal with prejudice. Docs. 34

and 47 in the respective cases. It does not appear that Judge Hinkle reviewed any

substantive evidence or adjudicate serious disputes in these cases. The court's actions

in both cases were quite routine. Aside from the orders regarding settlement, the court

entered orders regarding scheduling, granting extensions of time, and requiring

mediation. Case Nos. 4:00cv100-RH (docs. 6, 7 and 12); 4:00cv413-RH (docs. 7, 8, 10,

and 27). In the § 2000 case the court also denied motions to dismiss as moot in light of

the amended complaint, and entered a pretrial order. Docs. 27 and 39 in 4:00cv413-

RH. 

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Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

Further, the examples provided by Defendant simply do not show bias. As

discussed supra, counsel's question of Sweet about the relationship between Defendant

and Gail Livings was interrupted by the court for running "afoul of Rule 608(b)." The

possibility that Sweet was in another room of the police department was relevant to

whether Jefferson's testimony (in support of the new trial motion), that Sweet was not

present at the time Defendant sold Jefferson the Beretta, directly contradicted Sweet's

testimony that he was. The court noted:

[T]he explanation of that may very well be that Mr. Sweet was in the next

room. It's a small police station. It's three rooms or something, the

testimony was about it. It's a small place. And it could well be that Mr.

Jefferson couldn't recall Mr. Sweet being present, or that Mr. Sweet was in

the next room when he saw the gun handed over.

Mr. Jefferson – Mr. Jefferson's testimony does not necessarily contradict

Mr. Sweet, but it is certainly relevant testimony that would have been

prominently argued at the trial had it been available. 

Doc. 185 (transcript of hearing on motion for new trial), p. 25. 

It was again noted in the order denying the new trial motion, that "[a] jury might

not afford Jefferson's testimony much weight" in that regard, in part because "the City of

Midway Police Department is a small, three-room building," so "Mr. Sweet could have

seen the transaction from the next room." Doc. 158, pp. 15-16, n. 11. The comment

Defendant references as an example of bias was instead an observation of the

evidence presented in this case, which the court was particularly qualified to make after

sitting through two trials.

The court's comment that some of the witnesses might have committed perjury,

supported by a reference to page 47 of the sentencing transcript, does not show bias. 

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This came up in the context of Defendant's claim of selective prosecution and the

Government's decision not to go forward with the case against Jefferson:

Beyond that, I don't know what happened at a barber shop. I do know that

there was some testimony in this case that was not correct, may well have

been perjury. I don't know. There were a couple of people that gave

testimony that didn't ring true – not, I think, that impacted at all the verdict

rendered in the case. The basic facts of the case were clearly

established, and I think there is little doubt about them. 

doc. 186, p. 47. Defendant claims that this shows the court acknowledged perjury, but

ignored the possible prejudice due to bias. Doc. 211, p. 26. 

That the court thought "some testimony" did not ring true or was false does not

show bias one way or another. A trial judge must listen to and weigh the evidence so

that the court can later rule on a motion for a new trial such as the motion filed in this

case. 

On a motion for a new trial based on the weight of the evidence, the court

need not view the evidence in the light most favorable to the verdict. It

may weigh the evidence and consider the credibility of the witnesses.

United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). There is no indication

that the court's opinions here were based on anything outside the record in this case. 

Finally, Defendant has not provided any support for his claim that there was

excessive publicity about this or the other cases, which would have prejudiced the judge

or anyone else against him. Ground three is without merit.

Recommendation

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Case Nos. 4:01cr13-RH and 4:05cv25-RH/WCS

It is therefore respectfully RECOMMENDED that Defendant Gardner's amended

§ 2255 motion, doc. 211, be DENIED WITH PREJUDICE.

IN CHAMBERS at Tallahassee, Florida, on January 11, 2007.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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