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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 4:03-cr-00030-SPM-AK

JERMAINE K. CREWS,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 62, Motion to Vacate under 28 U.S.C. § 2255, 

by Jermaine K. Crews. The Government has filed a response, Doc. 66, and Defendant has filed a

reply. Doc. 67. This cause is therefore in a posture for decision. Having carefully considered

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

BACKGROUND

Defendant was indicted for seven counts of distribution of more than 5 grams of crack

cocaine. Doc. 1. The Court appointed Randolph Murrell to represent him. On October 14,

2003, Defendant pled guilty to Counts Four and Six. Docs. 16-19. In response to the

Presentence Report, Murrell filed a motion for downward departure and a motion to strike

Guideline penalties and statutory mandatory minimum penalty. Docs. 24 & 25. Murrell then

moved for appointment of new counsel after he and Defendant disagreed regarding sentencing

strategy and whether to pursue the motion for downward departure. Doc. 27; see also Doc. 28. 

The Court granted the motion for appointment of new counsel, Doc. 29, and William Bubsey

entered an appearance on Defendant’s behalf. He then filed a motion for downward departure,

identical to the one which Murrell had filed and attempted to withdraw. Doc. 32.

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On February 17, 2004, Defendant and counsel appeared for sentencing, and Bubsey

withdrew all pending motions. Doc. 50 at 2 & 8. The Court thereafter sentenced Defendant to

121 months on each count, to run concurrently. Doc. 41. Defendant appealed, and Bubsey

submitted an Anders brief and moved to withdraw from further representation. Doc. 61. The

Eleventh Circuit allowed Bubsey to withdraw and affirmed Defendant’s convictions and

sentences on September 24, 2004. Id. 

The instant motion to vacate ensued. On this occasion, Defendant claims that both

counsel rendered ineffective assistance by failing to object to certain matters in the PSR and to

preserve Apprendi/Blakely/Booker error for appeal and that appellate counsel was ineffective for

failing to raise those issues on appeal. 

DISCUSSION

Because Defendant’s claims involve ineffective assistance of counsel, a review of 

Strickland v. Washington, 466 U.S. 668 (1984), is appropriate. 

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.

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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

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.

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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

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).

1. Failure to object to two-point addition to criminal history calculation.

The probation officer added two points to Defendant’s criminal history calculation

because he was on probation for a suspended license conviction at the time the instant offenses

were committed. PSR at 7. See U.S. Sentencing Guidelines Manual § 4A1.1(d) (2002). 

According to Defendant, his plea in the underlying state court case was not knowing and

voluntary, and he was not on probation at the time of the instant offenses. In his view, counsel

were ineffective for failing to object to or investigate the underlying conviction on these bases.

Defendant was not prejudiced by counsel’s failure to object to the criminal history

calculation. Even if ¶ ¶ 27 and 29 of the PSR are excised in their entirety, Defendant’s criminal

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history points would have totaled five, as he was on probation at the time of the instant offenses

for burglary of an occupied dwelling with assault, see PRS at ¶ 25, and a two-point additional

assessment on that basis could have been made. With five criminal history points, his Criminal

History Category would still have been III. See U.S.S.G. Manual at Ch. 5, Pt. A.

2. Failure to object to Base Offense Level 32.

The probation officer calculated Defendant’s base offense level at 32 based on the

amount of crack bought from Defendant by a confidential informant during seven controlled

buys, 143.9 grams. PSR at ¶ 14; see also U.S.S.G. Manual at § 2D1.1(c)(4). The instant claim

of ineffectiveness appears to be based on Defendant’s claim that counsel were ineffective for

failing to object to the two-point criminal history assessment for being on probation at the time

of the instant offenses. Defendant is confused. The two-point probation assessment had nothing

to do with the Level 32 base offense calculation, which was based solely and entirely on the

amount of crack attributed to Defendant, amounts which Defendant does not challenge even

now. This claim is without merit. 

3. Failure to raise Apprendi/Blakely/Booker.

At the time of sentencing, Apprendi controlled and had been interpreted by this circuit as

having no applicability to the Sentencing Guidelines. United States v. Sanchez, 269 F.3d 1250,

1262 (11th Cir. 2001). Thus, counsel were not ineffective for failing to raise an Apprendi 

challenge. Furthermore, Blakely was not decided until after Defendant’s sentencing, and even

then, the Eleventh Circuit found it inapplicable to the Sentencing Guidelines and specifically

directed district courts to “continue to sentence pursuant to the Guidelines until such time as the

Supreme Court rules on this issue.” United States v. Reese, 382 F.3d 1308, 1312, 1312 n.2 (11th

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Cir. 2004). Defendant admitted to distributing 143.9 grams of crack, Doc. 16 at 1, and agreed

that the Court would “make the final determination of facts as to any sentencing issue.” Doc. 17

at 4. There were therefore no Apprendi/Blakely issues to raise either with this Court or on

appeal, and thus, counsel did not act deficiently in failing to pursue frivolous matters. Booker

was not decided until months after the conclusion of Defendant’s appeal and is not retroactively

applicable to cases on collateral review. Varela v. United States, 400 F.3d 864, 868 (11th Cir.

2005).

In light of the foregoing, it is respectfully RECOMMENDED that the motion to vacate,

Doc. 62, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 28th day of August, 2007.

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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