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1

This cause was administratively reassigned to the undersigned on September 7, 2007.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 5:02-cr-00038-RH-AK

MARVIN FLEMING,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This cause is before the Court on Defendant’s motion to vacate pursuant to § 2255, Doc.

93. The Government has filed its response, Doc. 100, and Defendant has filed a reply. Doc.

103. This cause is therefore in a posture for decision.1

 After careful consideration, the Court

recommends that the motion to vacate be denied without evidentiary hearing.

BACKGROUND

Defendant was indicted with a co-defendant, Charles Bynum, for conspiracy to distribute

and to possess with intent to distribute more than 500 grams of methamphetamine. Doc. 1. 

Bynum was quickly arrested and pled guilty to the charge in the Indictment. He received a life

sentence.

Defendant was not arrested until July 4, 2003, when he was arrested in the Central

District of California. Doc. 37. He initially appeared before the magistrate judge in this Court

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on August 1, 2003. At that time, the public defender was appointed as counsel, and arraignment

and a detention hearing were set for a few days later. Doc. 44. On August 6, 2003, the

magistrate judge set jury selection for September 15, 2003. Doc. 56. Two weeks later, the Court

appointed Gregory Cummings to represent Defendant in stead of the public defender. Doc. 57.

On September 12, 2003, the Government filed a § 851 Notice of Intent to Seek

Enhancement, advising Defendant that it intended to seek an enhanced sentence based on a 1997

conviction for “Import, Sale, and Distribution of Controlled Substance into State [of California]

and Possession of Controlled Substance for Sale.” Doc. 60.

On the morning of trial, the Court held a pretrial conference with the attorneys. At that

time, Mr. Cummings announced that he was “somewhat hesitantly” ready for trial. Doc. 74 at 2.

He told the Court that Defendant had been “semi-cooperative” and was “skeptical.” Id. 

According to counsel, when he went to the jail to talk to Defendant and to tell him about the

enhancement notice, the “man scared me [and] came across the table, calling me a liar,” and

accusing him of not working for Defendant. Id. at 2-3. Defendant told Cummings that he did

not want to talk to him and that there was not going to be a trial because he was going to plead

guilty. Id. at 3. Defendant told counsel he was wrong about the 20-year mandatory sentence,

and though counsel “went home, and...finished preparing for trial,” Cummings advised the Court

that it “would be doing itself a favor and all concern[ed] if this man had a black lawyer.” Id. He

explained that he was “not comfortable sitting next to” Defendant and that Defendant had “made

it clear he wasn’t going to talk to me anymore.” Id. In response to the Court’s question,

Cummings said he did not “hear any competency issues.” Id. at 4. Counsel indicated that he had

asked Defendant about several witnesses but that Defendant had said, “no, he didn’t want any of

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them, and I have a list, if necessary, but it’s noted he did not want me to subpoena any of these

witnesses.” Id. at 8.

The Court then allowed Defendant “a chance to tell me if there is any concern that you

have prior to start of trial, any questions you have about the process that I can answer.” Id. at 9.

In response, Defendant told the Court that he “didn’t think [he would] be going to trial this

soon,” and he accused Cummings of working against him in concert with DEA. Id. at 10-11. He

elaborated: “[T]his guy, he’s not in my corner, and I don’t want him to represent me. He is

ineffective counsel....If I’m going to trial, I want to get justice....I don’t want to be railroaded....” 

Id. at 11. 

When Defendant began repeating himself, the Court interrupted to give Defendant “some

information with respect to a couple of things that you’ve said.” Id. at 13. The Court began by

explaining that counsel did not have a choice about the trial date, as the Court had set it in

accordance with the dictates of the Speedy Trial Act. Id. The Court also explained that

Defendant was “confused” regarding the notice of enhancement and the minimum mandatory

sentence, which was mandated by law, not by Cummings’ acts or omissions, and that the policy

of the United States Attorney in this District is to seek an enhanced sentence “in every case

where they are entitled.” Id. at 15-16. The Court also explained that the Government in this

District does not “plea bargain it,” and it “doesn’t do much plea bargaining” at all. Id. at 17. 

Instead, “Your choice is to plea, and you can try to cooperate or not; but it often happens in this

district that they don’t offer anything more or less than that.” Id.

The Court then expressed confidence in counsel: “Mr. Cummings is an experienced

lawyer. I’ve had him in a number of cases. I’ve never had an instance with Mr. Cummings

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where I was concerned that he wasn’t doing his best, or that he wasn’t prepared, or that he

wasn’t in his client’s corner.” Id. In short, the Court advised Defendant that he had not “told me

anything that makes me think that Mr. Cummings is doing anything other than being a good and

effective lawyer in this case.” Id. at 18-19.

In response, Defendant reiterated that he did not want Cummings to represent him: “He

might be all right for you, but I happen to know he ain’t all right for me, ‘cause I know the law

too,” and he told the Court that he was not ready for trial, as he had “some peoples coming in

here. I’ve got my kids. I’ve got my brothers. I’ve got my sisters.” Id. at 19-20. Defendant

flatly told the Court: “I want another attorney. I don’t want to go to trial today before no jury. I

don’t want to go to trial. I talked to my daughter yesterday and told her that I would let them

know when my trial is. I don’t want to go to trial.” Id. at 23.

However, as a compromise, the Court proposed selecting the jury and then having “the

testimony put on on October 2nd and 3rd, that gives your family plenty of time to be here,” to

which Defendant agreed. Id. at 25. The Court then took a short recess, but before starting jury

selection, it received “word...that Mr. Fleming indicated that he might wish to waive a jury trial.” 

Id. at 28. The Government did not object to a waiver of jury trial, and the Court then questioned

Defendant on the record regarding his decision. Id. at 28-35. At the conclusion of this

discussion, the Court found that Defendant “knowingly, voluntarily, and intelligently waived his

right to a trial by jury,” and that he “well understands that he has the constitutional right to be

tried by a jury, but has made the choice to waive that right and to proceed instead to trial before

the court.” Id. at 35. After discharging the jury, the Court heard evidence from one Government

witness and then recessed the trial until the October date.

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At trial, the Government introduced evidence that identified Defendant, also known as

“Bob,” as the source of methamphetamine sold to several cooperating informants. Mr.

Cummings challenged the credibility of these witnesses, arguing that while Defendant did in fact

receive money and made phone case about receiving money, he did not know that the money

was part of any illegal drug activity. When Defendant testified, however, he admitted that he

knew from the first meeting with the cooperating witnesses that they were interested in buying

drugs. After several days of testimony, the Court rendered its verdict finding Defendant guilty. 

Doc. 82 at 73. More specifically, the Court stated:

There are some conflicts in the testimony. It is clear beyond a reasonable doubt

that Mr. Fleming assisted in transactions by which methamphetamine was sold by

someone in California to Mr. Slay and Ms. Austin in Florida. Even on Mr.

Fleming’s version of the facts, he knew from the time he first met Mr. Slay and

Ms. Austin that they were looking to buy drugs. He put them in touch with the

person variously identified as Sergio or Neto, and sometimes referred to...as the

Mexican....[T]hen according to Mr. Fleming’s own testimony, when...Sergio did

not want to deal directly with Mr. Slay or Ms. Austin, Mr. Fleming agreed to

receive payments and pass them along to Sergio in exchange for a hundred

dollars, agreeing to be the go-between transferring money from the buyer to the

seller of drugs. Knowing...that’s the type transaction being conducted is

sufficient under the law to make one guilty of conspiracy to distribute the drugs.

It also is clear that Mr. Fleming did that not just once but on a number of

occasions, and that the amount of methamphetamine involved in the transactions

that he assisted and facilitated exceeded 500 grams. Thus, he is guilty of this

charge.

Id. at 74-75.

In response to the Government’s inquiry, the Court stated that “[f]or today’s purposes,” it

was finding only that the amount of drugs involved was “in excess of 500 grams.” Id. at 75.

At sentencing, the Court noted Defendant’s objections to the Presentence Report, the

tenor of which was that Defendant “is not guilty....” Doc. 75 at 3. When the Court asked if the

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objections affected the Guidelines ranges, the following exchange occurred:

MR. CUMMINGS: Judge, just the objection where we talk about that Mr.

Fleming wants the court to knew he never sold any drugs or

had any illegal drug dealings before. Like the court says,

he retains the fact that he’s not guilty, which would take

him out of the guideline range in this respect. But other

than that, no sir.

THE COURT: All right. And I suppose in one respect the assertion that

he’s not guilty means that the quantity is not what’s

alleged, because, if he’s not guilty at all, that shouldn’t be

in the five to 15 kilogram range. But there is not a separate

contention that, if I accepted the evidence as I did, that this

is the wrong amount.

MR. CUMMINGS: No.

Id. at 3-4. The Court then questioned Defendant about the prior drug conviction underlying the

mandatory minimum 20-year sentence:

THE COURT: If you have any basis for challenging the validity of that

conviction or for asserting that it should not be considered

in connection with the sentence to be imposed in this

case...then you need to tell me about that at this point. If

you don’t raise an assertion of the invalidity of that

conviction at this time, you won’t be able to assert later that

that conviction was not valid and should not have been

used in connection with the sentencing in this court.

The conviction that’s set forth in paragraph 36 is a

conviction for attempted transport and sale of narcotics in

the Riverside Municipal Court in Riverside, California. 

The presentence report indicates that you were sentenced to

three years in state prison on that charge and, in fact,

served about a year and a half.

Were you convicted of that offense in California in 1997?

THE DEFENDANT: I was–it wasn’t a transport.

* * *

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They got it wrong. It was not a transport conviction. They

convicted me–the guy had half a gram stuff in his truck,

which was his stuff. So, they made me an accessory and

gave it to me, because I had been busted in a drug raid, like

I explained to him. So, they gave me it because I was the

older guy, and he never been arrested before, but the didn’t

know he was a drug addict. We had been at the gambling

casino together. I tried to explain that to him.

THE COURT: All right. But you were convicted of a drug offense?

THE DEFENDANT: I was convicted, and I appealed it. I’ve got it in appeal

right now.

THE COURT: The appeal is still pending now?

THE DEFENDANT: Right. I will beat that. I’m going to sue him for that. My

daughter is handling that.

MR. CUMMINGS: Judge, I don’t believe the appeal is pending at this point in

time. Mr. Fleming has indicated he is going to reopen that

appeal.

THE DEFENDANT: My daughter is handling it.

MR. CUMMINGS: Or his daughter is going to reopen it up. It’s not pending at

this time. It did apparently go up on appeal.

THE DEFENDANT: I talked to the guy who was supposed to file it.

THE COURT: So, in any event, there is now an effort being ;made or

going to be made to set aside that conviction?

MR. CUMMINGS: Perhaps.

THE COURT: All right. And, Mr. Fleming, to the extent you know, what

are the grounds on which you are going to challenge that

conviction?

* * *

THE DEFENDANT: Because the law says in–California state law says anything

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that’s in anybody’s property that it’s their property, belongs

to them. So that was his truck. They found it under the

hood of his truck, and I was out in the restroom. When I

came back, they had him jacked up. So, they asked me was

I with him. I told them, “Yeah, we’ve been to the casino

together.”

So, they took me as the accessory, too. So, I tried to tell

them, “I’m just passing through, been gambling at the

casino all night.” I said, “Why do you want to take me as

an accessory?” But they did it, anyway.

THE COURT: Did you have a trial in that case?

THE DEFENDANT: That’s the case that I went to trial on it....

* * * 

THE COURT: And you eventually were convicted?

THE DEFENDANT: Right.... 

THE COURT: You went to trial and were convicted?

THE DEFENDANT: Right. They gave it to me, and I appealed it.

Id. at 4-7.

The Court then allowed Defendant himself to make further objections regarding the PSR,

the most important of which involved his denial of the drug quantities attributed to him. Id. at

11. Afterward, the Court imposed sentence of 240 months, the minimum mandatory sentence. 

Id. at 12-13; see also Doc. 70. 

Defendant appealed with new counsel. The only issue on appeal was whether the Court

erred in accepting the oral waiver of jury trial. Doc. 89. The Eleventh Circuit concluded that

Defendant “neither showed a constitutional violation, nor that the district court plainly erred in

accepting his oral waiver of his right to a jury trial.” Id. The court did not consider that the

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waiver resulted from counsel’s alleged ineffectiveness, as the Court had not made the necessary

inquiries or findings for that determination at the trial level. Id.

The instant motion followed. On this occasion, Defendant raises four issues, which will

be addressed in turn.

DISCUSSION

1. Failure of counsel to object to trial beginning less than 30 days from date of appointment.

This claim is without merit. The Speedy Trial Act requires that trial not commence less

than “thirty days from the date on which the defendant first appears through counsel....” 18

U.S.C. § 3161(c)(2). Defendant “first appear[ed] through counsel” on August 6, 2003, when he

appeared for arraignment with court-appointed counsel. Doc. 55. See also United States v.

Darby, 744 F.2d 1508, 1519-20 (11th Cir. 1984) (under plain meaning of phrase “first appears

through counsel,” minimum time for commencement of trial was triggered by defendant’s

appearance at arraignment with counsel even though that attorney was later allowed to

withdraw). At that time, the Court set trial for September 15, 2003, forty-one days later. Doc.

56. Plainly, there was no speedy trial violation here, as the 30-day time period did not

commence with Mr. Cummings’ appointment, as Defendant argues, but commenced with

Defendant’s first appearance with counsel, even though the attorney who appeared at the

arraignment was not Mr. Cummings. Thus, neither trial nor appellate counsel was ineffective for

failing to raise this meritless issue.

In his memorandum, Defendant suggests further that counsel was not prepared for trial

when it commenced as he “had not done adequate investigation into the facts and the law prior to

trial or sentencing” and he “had only met with Mr. Fleming twice to discuss a ‘deal’...he had

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little of the discovery, none of the documents of the prior conviction and none of the Jencks Act

material.” These allegations are plainly contrary to Mr. Cummings’ representations to the Court

at the time of trial that he had prepared for trial despite Defendant’s outburst at the jail, and, in

this Court’s view, the allegations are not otherwise supported by the record of proceedings. The

trial was lengthy, considering it was non-jury, and the documentary evidence substantial, and

nothing in counsel’s examination of the witnesses suggests that he had not seen the documents

prior to trial or that he was not aware of their existence or that he was surprised in any manner by

the Government’s evidence.

2. “Conflict between [Defendant] and his trial counsel caused [Defendant] to receive

deficient representation–no objection made to Court’s lack of proper inquiry into the

actual conflict.”

To prevail on an ineffective assistance of counsel claim based on a conflict of interest, a

defendant must show “specific instances in the record that ‘demonstrate that an actual conflict of

interest adversely affected his lawyer’s performance.’” Caderno v. United States, 256 F.3d 1213,

1218 (11th Cir. 2001) (quoting Cuyler v. Sullivan, 446 U.S. 335 (1980)).

The fact that a defendant vociferously complains that his attorney is ineffective, as instant

Defendant did when he appeared for trial, does not operate to show that counsel’s alleged

conflict adversely affected his performance. Furthermore, the fact that the Court found

Defendant guilty does not establish that the alleged conflict adversely affected counsel’s

performance. As these are the only instances to which Defendant can point to show that

counsel’s performance was adversely affected in this case by the alleged conflict, the claim fails. 

The Court explored the issue of the conflict at the time it was raised and was satisfied, as it is

now, that Defendant’s complaints were nothing more than sound and fury signifying nothing. 

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Mr. Cummings was prepared on September 15, to proceed with trial despite Defendant’s

complaints about him, and the Court has no hesitation in finding that counsel adequately and

effectively represented Defendant when trial resumed several weeks later and that there is

nothing in his performance which raises a specter that the level of his representation was

compromised in any manner.

3. “Deficient representation caused [Defendant] to be sentenced for more drugs than

he was responsible for and for a prior conviction for which there is no record.”

Though he claimed he was “railroaded” and he was going to reopen the appeal,

Defendant admitted the 1997 drug conviction in California, and the Government introduced a

certified copy of his criminal history at trial showing a May 21, 1997, drug conviction. 

Furthermore, under § 851, a defendant cannot challenge, as a matter of law, a prior drug

conviction “which occurred more than five years before the date of the information alleging such

prior conviction” 21 U.S.C. § 851(e). Defendant’s 1997 conviction was not challengeable under

§ 851(e) because the statute of limitations had expired for asserting a challenge to a prior

conviction. The date of the Government’s Notice was September 12, 2003, more than five years

after the conviction. Counsel was therefore not ineffective for failing to challenge this prior

conviction.

In addition, counsel was not ineffective for failing to object further regarding the drug

quantity. He plainly objected that Defendant maintained his innocence, thereby in effect,

objecting that any drug quantity be attributed to Defendant whatsoever. Even after Booker

(which was not the law at the time of Defendant’s sentencing), the Court may continue to

determine drug quantity and other extra-verdict enhancements by a preponderance of the

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evidence. United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). The law is clear

that in a conspiracy case, the relevant conduct of the co-conspirators is properly considered in

assessing a defendant’s overall offense level, including the “quantity of drugs that passed

through” the co-conspirators. United States v. Gallashaw, 213 Fed. Appx. 792, 795 (11th Cir.

2007). Relevant conduct is considered under a preponderance of the evidence standard, not the

beyond a reasonable doubt standard. Id. Thus, the Court properly considered the quantities to

which the cooperating witnesses testified, and counsel was not ineffective for failing to raise a

meritless objection.

4. Failure of appellate counsel to raise issues on appeal.

As none of the issues raised herein had merit, appellate counsel was not ineffective for

failing to raise them on appeal. This claim is therefore without merit.

CONCLUSION

Having carefully considered the matter, the Court finds that none of Defendant’s claims

have merit, and therefore, it is respectfully RECOMMENDED that the motion to vacate, set

aside, or correct sentence, Doc. 93, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 10th day of March, 2008.

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

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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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