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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. CASE NO. 4:02CR33-SPM/AK

ALBERT M. GAY,

Defendant.

 /

REPORT AND RECOMMENDATION

This cause is before the Court on Defendant’s motion to vacate, set aside, or correct

sentence. Doc. 51. The Government has filed a response, Docs. 57 & 58, and Defendant has

submitted his reply. Doc. 61. This matter is therefore in a posture for decision. Having

carefully considered the matter, the Court recommends that the motion to vacate be denied.

BACKGROUND

On June 4, 2002, the grand jury returned a six-count indictment against Defendant,

charging him with possession of stolen firearms and possession of firearms by a prior convicted

felon. Doc. 1. Defendant was taken into custody on June 21, 2002. Doc. 6. 

On June 26, 2002, Defendant appeared for first appearance and arraignment before

United States Magistrate Judge William C. Sherrill, and George Blow was appointed as counsel. 

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Docs. 7 & 10. A trial date was set for August 19, 2002. Id. On August 2, 2002 the trial date

was continued to September 16, 2002, and on September 12, 2002, the date was continued to

October 15, 2002, both at Defendant’s request. Docs. 16 & 24. The second continuance

followed the Government’s Fed. R. Evid. 404(b) Notice of Intent to Use Other Crimes, Wrongs,

or Acts. Doc. 19.

On October 1, 2002, the grand jury returned a superceding indictment against Defendant.

Doc. 27. The Superseding Indictment was slightly different in that it corrected cause numbers

for prior convictions in Counts 2, 4, and 6 and changed the date of offense and the firearm at

issue in Counts 5 and 6. Id. On October 8, 2002, Defendant pled guilty as charged on all counts.

Doc. 36. At the plea hearing, Defendant was specifically advised that by entering a plea of

guilty he waived any defenses that he might have:

You have to go to trial to put on your defenses, this is, if you’ve got something

that you can argue or some evidence you want to put on. I don’t know whether

you do or don’t. But all I’m saying is, is that if you don’t go to trial, if you enter a

guilty plea, then your opportunity for putting on defenses is over.

Doc. 54 at 13. Defendant acknowledged his understanding of this waiver. Id. The Court then

turned to the factual basis for the plea. The factual basis did not specifically outline the prior

convictions set forth in the superseding indictment, but it did state:

On February 3, 1998, prior to the defendant’s possession of firearms described

above, the defendant was convicted in Leon County, Florida, of seven felony

counts of burglary of dwelling, four separate instances which encompassed four

felony convictions for grand theft. Each of these convictions was punishable by

imprisonment exceeding one year.

Doc. 34. Defendant read and signed the factual basis, and although the Court did not directly

question him regarding the prior convictions, he agreed that if the case were to go to trial, the

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Government had “evidence that could prove these facts to a jury[.]” Doc. 54 at 18. Next, the

Court advised Defendant regarding sentencing:

THE COURT: The sentencing commission guidelines will apply in this

case. What that means is is that there will be a pretrial

sentence report prepared. The report will gather personal

data about you and your criminal history and the

facts...underlying the charge, and then will compute a range

of sentences, and then Judge Mickle will have the authority

to impose a prison sentence somewhere between the

minimum and the maximum of the...sentencing guideline

range. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: [U]ntil this report is prepared, do you understand that

neither you nor the government nor your attorney will be

able to know for sure what that guideline range is going to

be?

THE DEFENDANT: Yes, sir.

* * *

THE COURT: Have you talked about sentencing guidelines with Mr.

Blow?

THE DEFENDANT: Yes, sir.

THE COURT: So what I’m trying to say is that if he’s tried to make a

prediction about the guideline range now, that it’s just a

guess at this point. It’s not a promise. Do you understand

that?

THE DEFENDANT: Yes, sir.

THE COURT: [I]n some circumstances the district judge...has the

authority in limited circumstances to impose a sentence that

is more severe or less severe than the sentence called for by

the guidelines. Do you understand that fact?

THE DEFENDANT: Yes, sir.

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* * *

THE COURT: If the sentence is more severe than you expect, you will

still be bound by your guilty plea and you will have no

right to withdraw it. Do you understand that?

THE DEFENDANT: Yes, sir.

Id. at 22-24.

Defendant’s counsel then summarized the terms of the plea agreement, which the Court

followed with a series of questions:

MR. BLOW: [T]he agreement that he’s entered into is...what I’ve

described to him as a standard plea and cooperation

agreement in this district; that he is pleading guilty to all

the charges in this case; that he faces sentencing in

accordance with the guidelines and the statutes; and there is

no specific agreement regarding any sentence. He will be

given the opportunity to cooperate, and that if he

cooperates in accordance with this agreement, and doesn’t

do anything to violate the terms of the

agreement....Then...in that event, at the sole discretion of

the United States Attorney, they may file a motion under

Rule 5K1, substantial assistance, or if it’s post-sentencing,

under Rule 35, which would then free up Judge Mickle to

impose a sentence that was less than the sentencing

guidelines and/or less than the statutory minimums.

He understands, and I’ve explained to him, that that is the

sole discretion of the U.S. Attorney, and there’s very little,

if anything, that I can do about it if they don’t do it....And

that ultimately the sentence to be imposed is that

determined by the court, and that there’s no specific

recommendation in here, and no promises have been made

regarding what sentence he’s going to get. And I might

also add a little beyond this, I’ve explained to him that it’s

quite likely that they will not be able to bring a new case

against some other individuals they’re interested in prior to

sentencing. And if that happens, then he will be sentenced

in accordance with the guidelines and the minimum

mandatories under the statutes, and then it will have to

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come by a Rule 35 subsequent to sentencing for him to get

the benefit of reduction.

So I’ve explained to him, and I would like for him to affirm

it on the record, that he understands when we get in

sentencing 70 days or so from now, it is in all likelihood

that they will not have a substantial assistance certification

ready at that point and that it may take as much as a year

before that process is finished.

THE COURT: Okay, Mr. Gay, Mr. Blow has just described what he

understands the plea agreement does. Did he tell me

accurately what the plea agreement does?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand the plea agreement the same way that

Mr. Blow does?

THE DEFENDANT: Yes, sir.

THE COURT: Did you have a chance to fully talk to him about the plea

agreement and all the terms and conditions of it?

THE DEFENDANT: Yes, sir.

THE COURT: Did he explain everything to you that’s in this written

agreement?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Mr. Canova, would you tell me whether your

understanding of the plea agreement is the same as Mr.

Blow’s?

MR. CANOVA: My understanding is the same as Mr. Blow’s. We have

agreed to listen to a proffer given by the defendant and

evaluate that proffer for purposes of a possible 5K1 filing. 

However, at this time, that decision has not been made one

way or the other.

* * *

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THE COURT: Mr. Gay, has anybody made you any secret promise that’s

not in this written agreement that you’re counting on?

THE DEFENDANT: No, sir.

THE COURT: Anything outside this agreement? Mr. Blow, can you

assure me there are no secret promises?

MR. BLOW: I can and will.

THE COURT: Mr. Canova, can you?

MR. CANOVA: Yes, sir.

THE COURT: Mr. Gay, let me talk to you about the substantial assistance

process. Mr. Blow has accurately described it to you, and I

want to repeat some of the things he said.

This plea agreement contemplates that you waive your

Fifth Amendment right and that you plan to give truthful

information to the government which might help the

government in the prosecution of other people.

THE DEFENDANT: Yes, sir.

THE COURT: Is that what you intend to do?

THE DEFENDANT: Yes, sir.

THE COURT: Is it? Okay. Now, the government then in this process will

consider the information and try to use it. That’s the way

this works. And when they’re finished with the process,

they then will determine whether or not they believe what

you’ve done is substantial. That means it has to be

important to the government....[W]hen they made the

decision whether it’s substantial, then they decide whether

to file a motion to help you out with your sentence. Are

you with me so far? You understand that part?

THE DEFENDANT: Yes, sir.

THE COURT: They say in this plea agreement that their decision to do

this, whether they do it or not, is within their sole discretion. Do you understand what that

phrase means, the sole discretion of the United States?

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THE DEFENDANT: Yes, sir.

THE COURT: It means–I’m paraphrasing it. It means they call the shot

and nobody can look over their shoulder and make them do

differently. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: So if they don’t file a substantial assistance motion, even

though you gave them information, even though you

believe you provided substantial assistance and they don’t

do it, then Mr. Blow is not going to have the ability to

obtain relief or remedy for you. And as much as Judge

Mickle might want to do it, he will not be authorized to

make them file the motion. Do you understand that?

THE DEFENDANT: Yes, sir.

* * *

THE COURT: [E]ven if they file this substantial assistance motion, do you

understand that it’s still left up to Judge Mickle as to what

to do about it? That he might not go down as low as you

were hoping he would do. Do you understand that?

THE DEFENDANT: Yes, sir.

Id. at 24-31.

Finally, the Court addressed Defendant regarding the voluntariness of his plea and his

satisfaction with counsel:

THE COURT: Has anybody used any force or threats or pressure on you

or anyone that you love or care about...to force you to plead

guilty?

THE DEFENDANT: No, sir.

* * *

THE COURT: Have you had enough time to talk with Mr. Blow to discuss

your case fully?

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THE DEFENDANT: Yes, sir.

THE COURT: Have you in fact done so?

THE DEFENDANT: Yes, sir.

THE COURT: Have you discussed any of the possible defenses that you

might have with Mr. Blow?

THE DEFENDANT: Yes, sir.

THE COURT: And ways that you might try to beat the case if you went to

trial?

THE DEFENDANT: Yes, sir.

THE COURT: Do you feel you need anymore time to talk with Mr. Blow

before I wind things up here and conclude the hearing?

THE DEFENDANT: No, sir.

THE COURT: Are you satisfied with the way Mr. Blow has represented

you in this case?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have any complaint against him or anybody from

his office as to the manner in which they’ve represented

you?

THE DEFENDANT: No, sir.

Id. at 31-32. Thereafter, the magistrate judge recommended that Defendant’s change of plea be

accepted, and on October 18, 2002, Judge Mickle agreed with that recommendation. Doc. 40.

On February 18, 2003, Defendant was sentenced to 120 months imprisonment and 3

years supervised release on counts 1, 3, and 5 and 180 months imprisonment and 5 years

supervised release for counts 2, 4, and 6, with the sentences to run concurrently. Docs. 46 & 47. 

Defendant did not appeal. 

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On February 23, 2004, Defendant filed a Motion to Vacate, Set Aside or Correct

Sentence. Doc. 51. In his motion, Defendant claims that counsel was ineffective for (1) failing

to challenge the thirty-day period for filing the indictment, (2) failing to challenge the indictment

on the grounds it claimed he aided and abetted himself, (3) failing to challenge the prior

convictions used to enhance his sentence, and (4) failing to protect Defendant from entering an

unknowing plea. Id. 

The government filed a response on June 2, 2004. Doc. 57. According to the

Government, the indictment was timely filed and the superceding indictment merely corrected a

case number for a prior conviction and the make of a gun. Id. at 3. Furthermore, Defendant

cannot establish prejudice to his defense by the delay, and he was granted two trial continuances

before pleading guilty. Id. As to Defendant’s second claim, the Government states Defendant

was not charged with aiding and abetting himself nor was he even charged with a substantive

offense of aiding and abetting. Id. at 5. In addition, the Government maintains that Defendant

cannot attack the validity of his prior convictions because he was represented by counsel. The

government also argues that Defendant was properly treated as an Armed Career Criminal. Id.

Finally, the Government states that Defendant’s plea claims were specifically addressed in the

Plea and Cooperation Agreement and in Defendant’s colloquy with the Court at the plea hearing.

Id.

DISCUSSION

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Because Defendant’s claims involve allegations that his counsel was ineffective, a

consideration of Strickland v. Washington, 466 U.S. 668 (1984), is appropriate before the Court

examines each claim individually.

To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must

demonstrate (1) that his counsel’s performance was below an objective and reasonable

professional norm, and (2) that he was prejudiced by this inadequacy. Strickland, 466 U.S. at

686. The court may dispose of the claim if a defendant fails to carry his burden of proof on either

the performance or the prejudice prong. Id. at 697. The court need not address the adequacy of

counsel’s performance when a defendant fails to make a sufficient showing of prejudice. Id.; see

also Tafero v. Wainright, 796 F.2d 1314, 1319 (11th Cir. 1986).

With regard to the performance prong of Strickland, a defendant must provide factual

support for his contentions that counsel’s performance was constitutionally deficient. Smith v.

White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The court must consider counsel’s performance

in light of all of the circumstances at that time and indulge in a strong presumption that counsel’s

conduct fell within the wide range of reasonably professional assistance. Strickland, 466 U.S. at

689-90. To show counsel’s performance was unreasonable, a defendant must establish that “no

competent counsel would have taken the action that his counsel did take.” Grayson v. Thompson,

257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption...that [counsel] did what he should

have done and that he exercised reasonable professional judgment.” Chandler v. United States,

218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001). “The

relevant question is not whether counsel’s choices were strategic, but whether they were

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reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules” for

determining whether counsel’s actions were indeed reasonable, as “[a]bsolute rules would

interfere with counsel’s independence–which is also constitutionally protected–and would

restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001). “To uphold a lawyer’s strategy, [the Court] need not attempt to

divine the layer’s mental processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. 

“No lawyer can be expected to have considered all of the ways [to provide effective assistance].” 

Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A,

course B, and so on. The lawyer’s strategy was course A. And [the Court’s]

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s unreasonable

conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland,

466 U.S. at 693. Instead, a defendant must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

“reasonable probability is defined as a probability sufficient to undermine confidence in the

outcome.” Id. Additionally, prejudice is established only with a showing that the result of the

proceeding was fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

Finally, the Eleventh Circuit has recognized that given the principles and presumptions

set forth above, “the cases in which habeas petitioners can properly prevail...are few and far

between.” Chandler, 218 F.3d at 1313 (11th Cir. 2000). This is because the test is not what the

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best lawyers would have done or even what most good lawyers would have done, but rather

whether a reasonable lawyer could have acted in the circumstances as defense counsel acted. 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

I. Failure to challenge thirty-day period for filing indictment.

Under the Speedy Trial Act, the Government must file an indictment within 30 days of a

defendant’s arrest. 18 U.S.C. § 3161(b). In Defendant’s view, the Government violated the

Speedy Trial Act when it failed to file the superseding indictment within 30 days of his arrest on

the original indictment, and counsel was ineffective for failing to challenge the untimely filing of

the superseding indictment. This allegation is without merit, as a “superseding indictment that

issues more than 30 days after the arrest, but before the original indictment is dismissed, does not

violate § 3161.” United States v. Mosquera, 95 F.3d 1012, 1013 (11th Cir. 1996). Consequently,

counsel did not act deficiently in failing to file a frivolous motion to dismiss.

II. Failure to challenge indictment on grounds it claimed Defendant aided and

abetted himself.

In addition to the substantive firearms offenses, Defendant was charged as a principal

pursuant to 18 U.S.C. § 2, which provides: “Whoever commits an offense against he United

States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a

principal.” According to Defendant, the indictment is defective because “it affirmatively

charged him with aiding and abetting, but failed to charge any person other than movant of the

principal offense.” Thus, in Defendant’s view, counsel was ineffective for failing to challenge

the indictment on this ground.

Section 2 does not establish a separate crime, “but rather an alternative charge that

permits one to be found guilty as a principal for aiding or procuring someone else to commit the

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offense.” United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984). “It allows a jury to find

one guilty of an offense even though he did not commit all the acts constituting the elements of

the substantive crime aided.” Id. Although a defendant “cannot aid or abet himself,” id., if he

personally commits the offense, he is punishable as a principal. United States v. Hornaday, 392

F.3d 1306, 1313 n.3 (11th Cir. 2004). This, according to the Eleventh Circuit, is an “obvious

truism.”

In United States v. Pearson, 667 F.2d 12 (5th Cir. 1982), the defendant, Pearson, was

indicted for importing heroin, both as a principal and as an aider and abetter of a co-defendant.

Id. at 13. At the close of its case, the Government dismissed the co-defendant because of

insufficient evidence. Id. The court nevertheless instructed the jury on aiding and abetting, and

the jury convicted him on all counts. Id.

In rejecting Pearson’s § 2255 claim that he was denied a fair trial because of the court’s

instructions on aiding and abetting, the court found:

The crime was importing heroin. It cannot be said that the fact that [the codefendant] was dismissed meant no crime had been committed, because there was

ample evidence that a crime was committed. Heroin was brought into this

country illegally. This is the crime with which Pearson is charged, not some

separate statutory offense called “aiding and abetting.”

When [the co-defendant] was dismissed, Pearson stood alone before the jury 

accused of the crime of importing heroin into this country. The government had

to prove each element of the crime, but thanks to 18 U.S.C. § 2, it did not have to

show that Pearson committed the acts constituting each element.

* * *

Unlike conspiracy, [the co-defendant’s] participation was not an element of the

crime in question....[T]o sustain this conviction, the evidence and reasonable

inferences therefrom must show that defendant knew that a narcotics distribution

was occurring, that he associated himself with the act, that he participated in it

with a desire that it be accomplished, and that he committed some overt act

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designed to make it a success. Defendant must have shared the criminal intent or

purpose and assisted in the accomplishment of that purpose.

Because “all indictments for substantive offenses must be read as if the alternative

proved by 18 U.S.C. § 2 were embodied in the indictment,” the words “aided and

abetted each by the other” in Pearson’s indictment were wholly extraneous and

had no effect on the crime charged, that of importing heroin. They did not add an

offense to the indictment, nor did they limit the charge of importing heroin.

Id. at 14-15.

The same is true here. Defendant was not charged with aiding and abetting himself, but

with having committed, as a principal, several substantive firearms crimes, and counsel was not

ineffective for failing to raise this issue.

III. Failure to challenge the prior convictions used to enhance sentence.

In this ground, Defendant charges that counsel should have challenged his state court

convictions because they were obtained without the court informing him of his rights as a

juvenile and ensuring that he understood his waiver of those rights. As Defendant

acknowledges, he had legal representation in state court, and thus, this claim is foreclosed by

Custis v. United States, 511 U.S. 485, 491 (1994), which allows collateral attack on prior

convictions used as Armed Career Criminal enhancements only where the defendant was not

represented by counsel in the prior proceedings.

IV. Failure to protect Defendant from entering unknowing plea.

Finally, Defendant argues that counsel was ineffective for failing to protect him from

entering an involuntary plea where he was misled “to believe he would be entitled to a rule 35

and/or under 5K1.1 of the guidelines.” Furthermore, he argues that counsel failed to explain the

meaning and consequences of the armed career criminal enhancement. 

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The law is well established that a “guilty plea means something. It is not an invitation to

a continuing litigation dialogue between a criminal defendant and the court.” Murray v. United

States, 145 F.3d 1249, 1254 (11th Cir. 1998). In fact,

the representations of the defendant, his lawyer, and the prosecutor at...a [plea]

hearing, as well as any findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings. Solemn declarations

in open court carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary dismissal,

as are contentions that in the face of the record are wholly incredible.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

In this case, the Court and counsel were very thorough in reviewing with Defendant the

issues that he now contests. Thus, his contentions that counsel misled him and failed to advise

him properly “are contentions that in the face of the record are wholly incredible.” The Court

and counsel meticulously explained on the record the downward departure process and the

Government’s discretion in that regard. Defendant acknowledged his understanding and never

indicated otherwise. On two occasions during the plea colloquy, the Court advised Defendant of

the sentence he faced on each count of the superseding indictment, and again, although he was

given the opportunity to advise the Court of any misunderstanding he had about the possible

penalties involved, he did not express any equivocation about the ramifications of his change of

plea. Therefore, this ground for relief is also not well taken.

CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s motion

to vacate, set aside, or correct sentence, Doc. 51, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 27th day of June, 2006.

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S/ A. KORNBLUM 

ALLAN KORNBLUM

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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