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1

 Defendant also references civil case number 4:04cv295-RH/WCS. Doc. 95, 97,

98, 101. That is not a valid case number. The correct number assigned to this § 2255

proceeding is 5:04cv174-RH/WCS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION 

UNITED STATES OF AMERICA,

Case No. 5:03cr1-RH

vs. Case No. 5:04cv174-WS/WCS1

KEITH L. SINGLETON, 

Defendant.

 /

REPORT AND RECOMMENDATION ON AMENDED § 2255 MOTION

This cause is before the court on Defendant Singleton's amended motion to

vacate sentence filed pursuant to 28 U.S.C. § 2255, and supporting memorandum. 

Docs. 95 and 96. Defendant had been directed to file an amended motion, and advised

that "[o]nce § 2255 relief is denied on the merits, the filing of a second or successive

motion is severely limited," so he should raise all available claims. Doc. 94, p. 2, citing

28 U.S.C. §§ 2244 and 2255. Defendant filed the amended motion now before the

court last October. Doc. 95. The court has not served it on the Government or taken

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2

 The statement of facts refers to Jackson's daughter, but she was actually

Defendant's daughter. See Doc. 59, p. 4 (Defendant's testimony that Jackson would

visit him and bring his children, and that his little girl had started calling her "mom"). 

Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

any other action. The file was set aside awaiting a ruling in Booker (discussed ahead),

and has been overlooked since that time through no fault of Defendant.

Procedural History 

Defendant entered a guilty plea on March 14, 2003. Doc. 39 (transcript). The

Government submitted a factual basis for Defendant's plea prior to the guilty plea

proceeding. Doc. 27. It reflects that Defendant was visited by Sandrea Jackson (his

co-defendant in this case) on May 25, 2002, while he was a federal inmate at FCI

Marianna. Id., p. 1. Jackson came with her daughter,2 who watched television in an

adjacent room. Id. Around 11:31 a.m., Defendant and Jackson began looking around

"in a suspicious manner." Id. At 11:33, Jackson took her daughter into the bathroom,

and they came out of the bathroom at 11:38. Id., p. 2. The officer "noticed that Jackson

seemed to be holding her mouth closed tightly," and then she and Defendant "kissed for

a prolonged period of time." Id. The officer noticed Defendant swallow hard several

times during this kiss, and after the kiss both he and Jackson appeared more relaxed. 

Id. 

Based on the observations of the officer the visit was ended and Defendant was

placed in a cell with no running water or restroom facilities. Id. Ultimately, found in his

stool were objects later determined to be balloons containing approximately 2.3 grams

of marijuana. Id. The Government anticipated that inmates Gamble, Graham, and

Mitchell would testify that on several occasions Defendant obtained marijuana in the

prison through Jackson. Id., p. 3. 

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Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

At his rearraignment, Defendant told the court that he swallowed some balloons;

he said he did not really know what was in them, but conceded it was probably a

controlled substance. Doc. 39, pp. 11-12. He admitted that he swallowed them

believing they contained a controlled substance he would be able to use or sell. Id., p.

14. While the Government asserted that Defendant obtained the drugs from Jackson,

the Court noted that it did not matter for purposes of the plea whether he got them from

a trash can or from Jackson. Id., p. 12. Defendant said he understood that he faced a

maximum term of 5 years imprisonment, consecutive to his current sentence. Id., p. 14. 

Defendant told the court he had talked to his attorney about the United States

Sentencing Guidelines, and said he understood that counsel's estimation of the

guidelines as applied in his case might not necessarily be correct based on a number of

factors. Id., pp. 14-15. The court accepted the plea, and advised Defendant that a

presentence report would be prepared. Id., p. 19. He was advised of the right to have

counsel present when he talked to the probation officer. Id., p. 20. He was advised that

he should read the PSR "very carefully," and "it's important that you read that report

promptly and let Ms. Timothy know of any problems with it." Id., at 20. 

The PSR was prepared on April 15, 2003, and revised on May 23, 2003. PSR, p.

1. The Government filed objections on May 14, 2003, asserting that Defendant did not

simply possess the marijuana, but distributed it, that he had an organizer or leader role

in the offense, and that he should receive an enhancement for obstruction of justice. 

Doc. 45, pp. 1-2. The Government noted that additional objections concerning

obstruction of justice and acceptance of responsibility might be warranted after

Defendant testified at Jackson's trial. Id., p. 2. Attached to the objections were

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Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

interview transcripts of inmates Albert Warren, Clarence Mitchell, Larry Graham, Erwin

Jordan, and Nathan Gambles. 

Defendant testified on May 20, 2003, at Defendant Jackson's trial. Doc. 59

(transcript of excerpt from second day of trial). He testified that Jackson was his

fiancee, whom he had known since 1997, and they were planning to marry in 2001. Id.,

p. 3. He said that on May 25, 2002, she came to see him and they argued about how

many calls he was allowed to make. Id., pp. 4-5. He admitted he pleaded guilty to

having marijuana in the prison, but he claimed that he found it in the garbage in the

visiting room, and asserted that Jackson did not bring it to him. Id., p. 6. He pointed out

the garbage can on a drawing of the visitation room. Id., pp. 8-9. He said Jackson

never passed anything to him by kissing, or gave him anything to swallow. Id., p. 11. 

Defendant denied telling Nathan Gambles that his girlfriend was bringing marijuana in

the prison. Id., pp. 11-12. He denied telling Albert Warren, Larry Graham, or Clarence

Mitchell anything about bringing marijuana into the prison. Id., pp. 13-14. He said he

asked Albert Warren to send money to Sandrea Jackson because he and Warren were

betting on games and Warren owed him money. Id., pp. 15-16. He said he had never

talked to Warren after the May 25 incident, but did receive a letter from Warren advising

the offense carried only six months. Id., pp. 31-32. 

Defendant Singleton's counsel filed a motion to continue sentencing due to

developments in the case following Jackson's trial. Doc. 62. Counsel asserted that

numerous revisions had been made to the PSR, notably two two-level enhancements,

for being a leader or organizer and for distribution as opposed to mere possession. Id.

The motion to continue was granted. Doc. 63. 

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Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

The evidence against Jackson, which included evidence showing that she was

supplying Defendant with marijuana and that Singleton was distributing marijuana in the

prison, is summarized in the order denying Jackson's motion for new trial. Doc. 73. 

The court found that Singleton's testimony was not credible, and the evidence of

Jackson's guilt was overwhelming. Id., p. 3. 

Both defendants were sentenced on August 14, 2003. Doc. 86 (transcript). 

Defendant's counsel objected to the sentencing under the U.S.S.G. § 2D1.1 for

distribution, rather than the § 2P1.2 for possession. Id., p. 7. Counsel argued that

Defendant's position was that the cooperating witnesses testified falsely because

motivated by their desire to obtain sentence reductions. Id., pp. 7-8. Counsel argued

that Defendant did not need the money, the marijuana was only for personal use, and

pointed out some discrepancies in the testimony of other inmates. Id., pp. 8-10. It was

clarified that this was a factual question rather than a legal question. Id., p. 11. 

The court found that Defendant was involved in distributing, not just possessing,

marijuana in the institution. Id., p. 15. Taking into consideration that other inmates

might lie or exaggerate in hopes of a Rule 35 motion, the court credited their testimony

based on all the circumstances and evidence. Id. 

Regarding role in offense, the Government had objected and the two level

increase under § 3B1.1(c) was accepted in the addendum to the PSR. Id., pp. 15-16. 

Defense counsel objected that this was not supported by the evidence at Jackson's trial. 

Id., pp. 16-17, 18-19. The court found that Defendant was a leader, organizer or

manager of this operation. Id., pp. 19-20. 

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3

 When given the opportunity to say anything to the court before sentencing,

Defendant did not wish to do so. Id., pp. 32-34. When Defendant was asked to stand

for formal imposition of sentence, he responded "[i]f I wouldn't, give me 37 months." Id.,

Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

The court then brought up whether Defendant was entitled to credit for

acceptance of responsibility in light of obstruction of justice, noting that "it jumps off the

page to me" where someone gives "flat false testimony, that is not consistent with

acceptance of responsibility." Id., pp. 23-27. Counsel expressed Defendant's position

that he testified truthfully, and argued that some circuits had held that conduct causing a

person to lose credit for acceptance of responsibility must be related or similar to the

offense of conviction. Id., pp. 27-28. The court rejected the argument, also noting that

Defendant's false testimony was related to this case and inconsistent with acceptance

of responsibility. Id., pp. 28-29. Counsel expressed Defendant's frustration that it

seemed like a simple case, he admitted what he had done, then it "mushroomed" into

something different, and different from what counsel had predicted the guidelines

sentence would be. Id., p. 30. 

The court assessed the obstruction enhancement against both defendants,

finding "that each knowingly and willfully gave false testimony during the trial." Id., p.

31. The court specifically noted "I would reach the same conclusion even if the

standard was proof beyond a reasonable doubt." Id., p. 32. Defendant's guidelines

range was 30-37 months. Id. 

Counsel asked the court to consider the low end of the range, and consider

submissions to the court (program review sheets and character letters) showing that

Defendant had been doing well in prison prior to this incident. Id., p. 33. The court

selected a sentence of 36 months, near the high end of the range. Id., pp. 40, 45.3

 The

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p. 45. When the court announced the term of 36 months, Defendant said "I'd rather

take 37." Id. It is not apparent (and somewhat puzzling) why Defendant asked for an

extra month of imprisonment. 

Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

term of supervised release was made concurrent with the term in case 1:99cr36-MMP,

but the term of imprisonment was consecutive. Id., p. 48. The court noted that a

consecutive sentence was required by statute, but the court would require it even if it

were discretionary. Id., pp. 48-49. 

Claims and Legal Analysis

Defendant raises two related grounds in support of his § 2255 motion. Doc. 95,

p. 3. He argues ineffective assistance of counsel because it was well settled at the time

of his conviction that any fact necessary to increase the sentence must be charged in

the indictment and proved beyond a reasonable doubt. Id. He asserts as ground two

that the trial court exceeded its jurisdiction, and violated his Sixth Amendment right to

trial by jury, in sentencing him based on facts never charged in the indictment or

admitted by Defendant. Id. Specifically, Defendant challenges the enhancements to his

sentence based on his role in the conspiracy, obstruction of justice, and distribution. 

Doc. 95, p. 3; doc. 96, pp. 4-7. Defendant also claims that his imprisonment for this

conduct violates the Eighth Amendment. Doc. 96, p. 10. 

Defendant's claims are based on Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny. In Apprendi, the Court

"confirm[ed] the opinion that we expressed in [Jones v. United States, 526 U.S. 227,

119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)]. Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

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4

 Following the filing of an Anders brief, the judgment was affirmed on February

27, 2004, and the mandate issued on March 29, 2004. Doc. 92. The judgment became

final on May 27, 2004. Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1075, 155

L.Ed.2d 88 (2003) (if a petition for writ of certiorari is not filed, conviction becomes final

when the 90 days for seeking certiorari expires). Blakely was denied on June 24, 2004. 

Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490,

120 S.Ct. at 2362-63. 

Defendant also references Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004), decided shortly after Defendant's conviction became final.4 In

Blakely, the Court found that Apprendi applied to a sentence enhanced under the

Washington Reform Act, explaining that "the relevant 'statutory maximum' is not the

maximum sentence a judge may impose after finding additional facts, but the maximum

he may impose without any additional findings." 542 U.S. at , 124 S.Ct. at 2537. See

also United States v. Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)

(decided after Defendant's amended § 2255 motion was filed), applying Blakely to the

Federal Sentencing Guidelines. 

Defendant is not entitled to relief because Blakely and Booker do not apply

retroactively on collateral review. Varela v. United States, 400 F.3d 864, 867 (11th Cir.

2005) (Blakely and Booker do not apply retroactively on collateral review), citing McCoy

v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001), cert. denied, 536 U.S. 906

(2002) (Apprendi does not apply retroactively on collateral review), other citations

omitted. See also Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005) (agreeing

with the Sixth, Seventh, Tenth, and Eleventh Circuits that Booker is not retroactive)

(citing Varela, other citations omitted); Lloyd v. United States, 407 F.3d 608, 615-616

(3d Cir. 2005) (joining the other circuits, collecting cases). 

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Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

Defendant argues that retroactivity analysis is not relevant here as the right was

well established in Apprendi and other cases. Doc. 96, pp. 10-12. "Lest there be any

confusion," Defendant explains, he does not explicitly rely on Blakely; rather "the

gravamen of Movant's claim is premise[d] on the settled law of the land at the time of

his conviction in Apprendi." Id., p. 14. Defendant asserts that reasonable counsel

would have known that the Blakely case was pending. Id., p. 13. 

At the time of Defendant's indictment, as well as his guilty plea and sentencing

(i.e., after Apprendi and before Blakely), the Eleventh Circuit had held that "Apprendi

has no effect on cases in which a defendant's actual sentence falls within the range

prescribed by the statute for the crime of conviction." United States v. Sanchez, 269

F.3d 1250, 1268 (11th Cir. 2001) (en banc) (emphasis in original). The reasoning was

that Apprendi did not apply to guidelines determinations, and "does not apply to those

findings that merely cause the guideline range to shift within the statutory range." Id. at

1262 (footnote omitted). Indeed, prior to Blakely, "only one court had ever applied

Apprendi to invalidate application of a guidelines scheme." Blakely, 542 U.S. , n. 1,

124 S.Ct. at 2547, n. 1 (J. O'Connor, dissenting). As the application of the guidelines

merely shifted Defendant Singleton's sentence within the five year statutory maximum

range, a Blakely type claim made at sentencing would have been unsupported and

contrary to circuit precedent. 

Defendant's assertion that counsel should have known the Blakely issue was

pending is also without basis. There a state court in Washington held that Apprendi did

not apply to the Washington Sentencing Reform Act, and the Supreme Court did not

grant certiorari until October 20, 2003, after Defendant's sentencing (on August 14,

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Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

2003). Blakely v. Washington, 540 U.S. 965, 124 S.Ct. 429, 157 L.Ed.2d 309 (2003). 

Further, even after Blakely was actually decided by the Supreme Court and its

application to the federal guidelines was pending a decision in Booker, the Eleventh

Circuit held "that district courts should 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 and n. 2 (noting that oral argument was scheduled for October 4,

2004), cert. granted and judgment vacated, 125 S.Ct. 1089 (2005) (for further

consideration in light of Booker opinion). Counsel did not err in failing to anticipate

Blakely. 

Finally, Defendant's reference to the Eighth Amendment is unavailing. Proof

beyond a reasonable doubt and trial by a jury are not secured by the Eighth

Amendment. Cf. Jones, 526 U.S. at 243, n. 6, 119 S.Ct. at 1215, n. 6. ("under the Due

Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the

Sixth Amendment, any fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt."); Ring v. Arizona, 536 U.S. 584, 600, 122 S.Ct. 2428,

2439, 153 L.Ed.2d 556 (2002) (quoting Jones). See also Booker, 125 S.Ct. At 746

("[t]he question presented in each of these cases is whether an application of the

Federal Sentencing Guidelines violated the Sixth Amendment."); Blakely, 124 S.Ct. at

2543-44 (O'Connor, dissenting, finding it "implausible that the Framers would have

considered such a result [reached by the Blakely majority] to be required by the Due

Process Clause or the Sixth Amendment . . . ."). Defendant has not stated an Eighth

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5

 "The Eighth Amendment, which forbids cruel and unusual punishments,

contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" 

Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108 (2003)

(citations omitted). In Ewing, the Court found a "three strikes" sentence of 25 years to

life was not unconstitutionally disproportionate to the offense of felony grand theft, which

was based on shoplifting three golf clubs. 538 U.S. at 28-31, 123 S.Ct. at 1189-90. 

See also Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (rejecting

Eighth Amendment challenge to a total sentence of 40 years imprisonment for

possession and distribution of nine ounces of marijuana).

Case Nos. 5:03cr1-RH and 5:04cv174-RH/WCS

Amendment claim under the Apprendi rationale. An Eighth Amendment claim based on

the length of his sentence, if raised, is frivolous.5

Defendant cannot demonstrate ineffectiveness of counsel, is not entitled to

assert his Blakely / Booker claim retroactively, and has not raised a colorable Eighth

Amendment claim. 

Accordingly, it is RECOMMENDED that amended motion to vacate sentence

pursuant to 28 U.S.C. § 2255, doc. 95, be SUMMARILY DENIED WITH PREJUDICE.

IN CHAMBERS at Tallahassee, Florida, on August 2, 2005.

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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