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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

Case No. 5:02cr6-RH

vs. Case No. 5:04cv282-RH/WCS

MITCHELL WAYNE WILDER,

Defendant.

 /

REPORT AND RECOMMENDATION ON § 2255 MOTION

Defendant Wilder, proceeding pro se, filed a motion to vacate pursuant to 28

U.S.C. § 2255 and supporting memorandum. Docs. 70 and 71. The Government filed

a response, to which Defendant filed a reply. Docs. 74 and 75. 

Procedural History

Defendant's motion to suppress evidence was denied following a hearing. Docs.

16, 28, and 43 (motion, order of May 31, 2002, and transcript of May 14, 2002, hearing). 

Defendant then failed to appear for rearraignment, and Elizabeth Timothy filed a motion

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1

 Timothy was a potential witness against Defendant for his failure to appear,

which resulted in a new prosecution (5:02cr16), discussed ahead. Doc. 34, p. 2. 

Case Nos. 5:02cr6-RH and 5:04cv282-RH/WCS

to withdraw as counsel. Doc. 34.1 Jonathan Dingus was appointed as counsel. Doc.

38. 

Defendant pleaded guilty pursuant to a plea agreement with the Government. 

Docs. 40 (plea agreement) and 59 (rearraignment transcript). Defendant agreed to

plead guilty to conspiracy to manufacture and possess with intent to distribute more

than 50 grams of methamphetamine and more than 500 grams of a mixture containing

methamphetamine, as charged in count one. Doc. 40, p. 2. See also doc. 1

(indictment). 

The defendant agrees that he was involved in a conspiracy to

manufacture methamphetamine (actual) or a mixture or substance

containing a detectable amount of methamphetamine but recognizes that

the actual amount for which he will be held personable [sic] accountable

will be determined by the Court at the time of sentencing, under a

standard of proof of beyond a reasonable doubt.

Doc. 40, p. 2. "Preponderance of the evidence" was originally typed on the document

but was stricken in ink, and replaced with the handwritten beyond a reasonable doubt

language. Id. See also doc. 59, pp. 24-25 (discussing this change). 

According to the plea agreement, Defendant recognized the potential sentences

faced depending on the quantity of drugs determined by the court. Doc. 40, pp. 2-3.

The court also explained the sentences at the time of the plea. Doc. 59, p. 22. 

Defendant entered a guilty plea to count one in case number 5:02cr16-RH,

charging failure to appear at rearraignment on June 11, 2002. Id., p. 3, see also doc. 30

(minute entry). Defendant reserved the right to appeal denial of his motion to suppress. 

Doc. 40, p. 3. 

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2

 Defendant claimed that his truck broke down on his way to court. Id., pp. 13-15. 

The Government took the position that not only did Defendant not show up in court, he

ceased contact with probation, law enforcement officers went to his house which

appeared to be abandoned, and it took them a month to find Defendant. Id., pp. 15-16.

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Defendant agreed that, by pleading guilty to count one in both cases, he was

waiving his rights:

to plead not guilty, to compel the Government to prove his guilt beyond a

reasonable doubt, not to be compelled to incriminate himself, to confront

and cross-examine the witnesses against him, to have a jury or judge

determine his guilt on the evidence presented and other constitutional

rights which attend a defendant on trial in a criminal case. 

Doc. 40, p. 4. Defendant indicated to the court at the time of his plea that he

understood the rights he was giving up, that there would not be a trial, and that he was

giving up any defenses he might have. Doc. 59, pp. 5-7. 

It was agreed that Defendant and the Government could offer evidence or

argument relevant to imposition of sentence under the United States Sentencing

Guidelines. Id., p. 5. 

The facts in support of Defendant's pleas to count one in this case and count one

in 5:02cr16-RH are set forth in the plea agreement itself. Id., pp. 8-10. They were also

discussed at the time of the guilty plea. Doc. 59, pp. 10-20. Defendant agreed with the

court that he wanted to plead guilty and try to work with the Government to get a better

sentence, and would rather do that than stand his ground on the charge of failure to

appear (which he claimed was involuntary2

). Id., pp. 19-20. 

With regard to substantial assistance, the plea agreement provided that "[i]f, in

the sole discretion of the United States Attorney, Northern District of Florida, the

defendant is deemed to have provided substantial assistance in the investigation or

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prosecution of other persons who have committed offenses," had otherwise complied

with the plea agreement, and the assistance was timely, then the Government "will file

an appropriate substantial assistance motion." Doc. 40, p. 7. Counsel for the

Government could "in his absolute discretion" decide whether to file a motion under 18

U.S.C. § 3553, U.S.S.G. 5K1.1, or both. Id. Whether relief would be granted and the

extent of any relief was left to the discretion of the court. Id. At rearraignment, counsel

for the Government said there was a potential for Defendant to cooperate, however:

The government's position is that his statement of his involvement today

drastically understates what he did. If Mr. Wilder is hoping for a Rule 35

or for even acceptance of responsibility somewhere down the line, then he

needs to remember when he was confessing to cooking multiple batches

of methamphetamine six to eight ounces a batch. I think he is on the

outside periphery. He may be pointed in the right direction but hasn't

come very far. But, yes, there is some potential that that could happen

down the line, but I don't want either the court or Mr. Wilder to be standing

here under the misapprehension that we subscribe to the same view of

the facts that he does. 

Doc. 59, pp. 18-19. 

The quantity of methamphetamine for sentencing purposes was disputed. At the

sentencing hearing of November 14, 2002, the Government presented testimony of

Ethon Jolly, a forensic chemist with the Drug Enforcement Administration (DEA). Doc.

60 (sentencing transcript), pp. 5-20. Jolly was involved in processing the evidence

taken from the methamphetamine lab, and analyzing samples. Id., pp. 8-9. He testified

at length regarding the substances and quantities thereof found in the exhibits. Jolly

was cross examined by defense counsel. Id., pp. 20-46. 

The Government also presented testimony of DEA Agent Michael Moon. Id., pp.

46-49. He had interviewed Defendant a number of times including the first time agents

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went to the lab, when Defendant explained to him the process of manufacturing

methamphetamine and explained some of the chemicals. Id., p. 47. Defendant told

Moon he provided the location, assisted the other person who provided the "products,

the other person distributed the bulk of the "product," and Defendant received in return

a small portion of methamphetamine as payment. Id. 

On cross examination, Moon said that Defendant had told him he used

methamphetamine for pain. Id., pp. 49-50. Moon said Defendant implicated another

person whom they were investigating, and thought Defendant told them everything he

knew without holding back. Id., p. 50. Defendant told Moon he provided the site and

received methamphetamine as payment, and Moon found nothing to indicate that this

was not true. Id., pp. 50-51. 

The defense called Defendant's wife, Joanne Wilder, who testified that Defendant

used methamphetamine for pain in his knees and back. Id., pp. 51-52. She was aware

of the other individual supplying the raw materials, and said Defendant "was just mainly

watching." Id., p. 52. 

The parties argued the appropriate quantity for sentencing. Id., pp. 54-60. The

court found the amount exceeded 50 grams of pure methamphetamine. Id., pp. 60-63. 

Defense counsel mentioned that there might be substantial assistance within a

year, and the court advised both parties to calendar the date. Id., p. 66. Government

counsel expressed concern that while Defendant had pleaded guilty, he "is still

minimizing his role; and that's just the concern I have, and at this point it seems to me to

be persistent." Id., pp. 67-68. Defendant was sentenced to a term of 120 months in this

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case, and a term of one day in the other case, to be served consecutively. Id., pp. 68-

70. 

Defendant appealed, asserting error in the denial of his motion to suppress and

error in sentencing. Doc. 74-2 (excerpt of initial brief). As to sentencing, Defendant

claimed clear error in finding him responsible beyond a reasonable doubt for more than

50 grams of methamphetamine based in part on testimony as to the theoretical yield of

seized precursor chemicals. Id. The judgment was affirmed without opinion. Doc. 74-3

(copy of docs. 67 and 69). 

Standard of Review

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.'"

Accordingly, a non-constitutional error that may justify reversal on direct

appeal does not generally support a collateral attack on a final judgment,

unless the error (1) could not have been raised on direct appeal and (2)

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

Lynn v. United States, 365 F.3d 1225, 1232-33 (11th Cir.), cert. denied, 543 U.S. 891

(2004) (citations and footnotes omitted). 

Errors raised and disposed of on direct appeal cannot be considered on a § 2255

motion. United States v. Nyhuis, 211 F.3d 1340 , 1343 (11th Cir. 2000) (citation

omitted). Defendant cannot simply recharacterize the claim, and "[a] rejected claim

does not merit rehearing on a different, but previously available, legal theory." Id.,

(citation omitted). If the issue was not raised on appeal, on the other hand, it is

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procedurally barred and will not be reviewed absent a showing of cause and prejudice. 

Id., at 1344 (citations and footnote omitted); see also Massaro v. United States, 538

U.S. 500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003) (noting "the general rule

that claims not raised on direct appeal may not be raised on collateral review unless the

petitioner shows cause and prejudice.") (citations 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. at 504, 123 S.Ct. at 1693-94 (ineffectiveness claim could be

brought under § 2255 in the first instance and was not defaulted); 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 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

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assistance." 466 U.S. at 690, 104 S.Ct. at 2066. "[E]very effort must be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's perspective

at the time," and "counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment." 

466 U.S. at 689, 690, 104 S.Ct. at 2065, 2066. To satisfy this prong of Strickland,

Defendant must show that "no competent counsel would have taken the action that his

counsel did take." Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001) (citation

omitted). There are no rigid requirements, or absolute duty to investigate a particular

line of 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). 

To establish prejudice due to alleged ineffectiveness of counsel claims in the

context of a guilty plea, "the defendant must show that there is a reasonable probability

that, but for counsel's errors, he would not have pleaded guilty and would have insisted

on going to trial." Hill v. Lockhart, 467 U.S. 52, 58-59, 106 S.Ct 366, 370, 88 L.Ed.2d

203 (1985). For example, where the alleged error is counsel's failure to discover

evidence, the prejudice inquiry depends on whether the alleged evidence would have

changed counsel's advice to plead guilty, which depends on whether the alleged

evidence would have likely changed the outcome if the case had gone to trial. Id. 

Moreover, in a challenge to a guilty plea:

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[T]he representations of the defendant, his lawyer, and the prosecutor at

[the 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, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)

(citations omitted).

To establish prejudice due to alleged ineffectiveness of counsel at sentencing,

Defendant must show a reasonable probability that, absent the errors, the court would

have sentenced him differently. 466 U.S. at 695, 104 S.Ct. at 2069. To establish

prejudice due to ineffectiveness on appeal, Defendant must show that but for counsel's

error he would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86, 120

S.Ct. 746, 764, 145 L.Ed.2d 756 (2000). 

Ground One 

Defendant asserts that the standard of proof of beyond a reasonable doubt was

not met at the time of sentencing, as the Government's evidence "demonstrated that no

jurist of reason could find that the defendant was liable for this drug quantity nor the

minimum yield of 50%." Doc. 70, p. 5. "Although an issue on direct appeal," Defendant

claims that "the reasoning, standard of proof and the legal contentions of this argument

are substantially different than that of the appeal in this case." Id. He also claims that

the plea agreement allowed a finding of a lessor drug quantity. Id. See also doc. 71,

pp. 1-8 (legal arguments).

With the exception of the argument discussed ahead, Defendant's sentencing

claims were decided on appeal and may not be relitigated here. His claim that the §

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3

 Defendant also argues that the evidence supporting the sentence was not

proved beyond a reasonable doubt in violation of Blakely. Id. This is a restatement of

the argument – raised and rejected on appeal – that there was not evidence beyond a

reasonable doubt to support the sentence. Defendant may not relitigate the sufficiency

of evidence to support his sentence. 

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2255 arguments are "substantially different" than the arguments on appeal is

unsupported. Defendant challenged the court's finding as to drug quantity on appeal,

claiming that testimony of a theoretical yield of 50% did not prove quantity beyond a

reasonable doubt. See 2003 WL 22964120 (initial brief), pp. *19-24; 2003 WL

32332988 (answer brief), pp. 21-24; and 2003 WL 22964119 (reply brief) pp. 5-8. This

claim was rejected and the judgment affirmed. Doc. 67 (opinion of October 15, 2003,

issued as mandate on November 13, 2003). 

Defendant also makes the argument that the finding of drug quantity by the court

rather than a sentencing jury violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), and that he did not waive his right to a sentencing jury. 

Doc. 71, pp. 2-3.3 In Blakely, the Court applied Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to a sentence enhanced under state

sentencing guidelines. As set forth in Apprendi, "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63. See also United States v. Booker, 543

U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (applying rationale of Blakely to the

Federal Sentencing Guidelines). 

Defendant Wilder was sentenced after Apprendi, but before Blakely or Booker. 

Since he was not sentenced to more than twenty years imprisonment, the maximum

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4 See doc. 59, p. 22, noting that, if the amount of methamphetamine was less

than five grams, Defendant faced a maximum sentence of 20 years and no minimum

sentence. 

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sentence for methamphetamine without regard to quantity,4 Apprendi would have been

deemed inapplicable under then binding circuit precedent. See United States v.

Sanchez, 269 F.3d 1250, 1268-62 and n. 36 (11th Cir. 2001) (en banc) (collecting

cases, finding Apprendi did not apply where the term was within the statutory maximum

of § 841(b)(1)(C) without regard to drug quantity). 

Even so, this Defendant had the benefit of the beyond a reasonable doubt

standard at sentencing. The court advised him of the possible maximum and minimum

sentences he would face depending on the amount of methamphetamine he was

deemed accountable for at sentencing. Doc. 59, p. 22. The court advised Defendant

that he had the right to have a jury decide, beyond a reasonable doubt, the amount of

methamphetamine involved in the offense. Id., pp. 23, 25. Defendant said he agreed to

have the amount of methamphetamine determined by the judge rather than a jury. Id.,

p. 25. Defendant waived any right to a jury determination. 

Ground Two

The indictment charged that Defendant "did knowingly and intentionally combine,

conspire, agree and have a tacit understanding with other persons . . . ." Doc. 1, p. 1

(emphasis added). Defendant asserts that the indictment failed to charge a conspiracy

because it did not "list" (that is, specifically name) any other party to the conspiracy. 

Doc. 70, p. 5. Defendant claims that he did not waive the failure to sufficiently charge a

conspiracy. Id. See also doc. 71, pp. 8-12 (arguing that two or more people are

required for a conspiracy, a person cannot conspire with himself, collecting cases). In

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response to the Government's argument (doc. 74, pp. 4-5), Defendant claims this was a

defect in the indictment which deprived the court of jurisdiction. Doc. 75, p. 11. 

This claim is procedurally defaulted. It is also baseless. Defendant could be

convicted of conspiring with a unnamed persons. See, e.g., United States v. Martinez,

96 F.3d 473, 477 (11th Cir. 1996) ("[w]e have repeatedly held that a defendant may be

convicted of conspiring with 'persons unknown,' if sufficient evidence supports the

existence and involvement of such unknown persons.") (citations and footnote omitted). 

Further, there was evidence that Defendant had an agreement or understanding

with at least one other person to commit the underlying drug offenses and was an active

participant. Defendant said he was living in one trailer on the property, and he rented

the other trailer "for a friend of mine." Doc. 59, pp. 10, 13. The court asked if the

second trailer, used as a methamphetamine plant, was his or if he operated it,

Defendant said, "[n]o sir, I didn't operate it. . . . I rented the building for him, and I done

the cleanup." Id., p. 10. The court explained that just witnessing or knowing about a

crime did not make him guilty, and Defendant repeated, "only thing I was doing was

help cleaning it up. Whenever he finished whatever he was doing, I cleaned it up." Id.,

p. 11. Defendant said "when he left," referring to the person making the

methamphetamine, then Defendant "would go in and clean the jars and everything like

that up." Id., pp. 11-12. It was messy, and Defendant said he had to "scrub the walls

and everything like that." Id., p. 12. In exchange, Defendant received some

methamphetamine for his own use. Id. See also Doc. 60 (sentencing transcript), pp.

47, 50-51 (Agent Moon's testimony that Defendant said he assisted the other individual

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5

 At the suppression hearing, Joanne Wilder testified that Defendant made the

arrangements for the other person to rent the other trailer, and that he gave money to

Defendant to rent the other trailer. Doc. 43, p. 82. She later said Danny Barfield was

the person renting the other trailer, that he was the person she told the sheriff about, but

he and his girlfriend never moved in but just used the trailer. Id., pp. 91-92. 

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and had implicated the other individual), and p. 52 (Joanne Wilder's testimony that she

was aware of the other individual involved with Defendant).5 

Ground three

Defendant asserts ineffective assistance of counsel at four critical stages of the

proceeding: rearraignment, during plea negotiations, sentencing, and on appeal. Doc.

70, p. 5. No facts are set forth in the motion itself, and few facts can be gleaned from

the supporting memorandum. Doc. 71, pp. 13-17. He asserts as "evident" that

"counsel was ineffective in his failure advising and interceding in mitigating the actual

and the mixture amounts from the testimony of the DEA chemist." Id., p. 15. This issue

was argued at sentencing and on appeal, and Defendant does not identify any

argument counsel failed to make or evidence he failed to present which might have

been relevant to this issue. This claim is insufficient on its face. 

Defendant asserts that "[c]ounsel's failure had a profound prejudicial effect" at

sentencing, "and the stated cooperation by the case agent was never pursued within the

one-year statutory limitation period as instructed by the sentencing judge." Id. (citing p.

66 of the sentencing transcript) (where, as set forth supra, the court advised the parties

to calendar the date). Defendant contends that cooperation in order to obtain a

substantial assistance motion is a "critical stage" of the proceeding requiring the

effective assistance of counsel. Doc 71, pp. 15-16. 

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Defendant does not allege any specific assistance he provided which, if "pursued

within the one-year statutory limitation period," might have resulted in the filing of a

substantial assistance motion. The Government made comments on the record (as

noted supra) predicting potential problems for this Defendant in obtaining a substantial

assistance motion. Moreover, as set forth ahead with respect to ground four, counsel

could not make the Government file a motion. Even assuming Defendant had the right

to counsel for purposes of pursuing a post-judgment substantial assistance motion, he

has not sufficiently alleged error or prejudice. 

Defendant asserts that he was "sentenced on the basis of materially untrue

assumptions," in violation of due process, and these assumptions "have continued and

are evident in the relevant information, documents and statements presented by the

government and used by this Court in forming the criminal liability [he] is now subject

to." Doc. 71, p. 16. He contends that "the conclusionary and ambiguous statements"

presented by the Government did not carry its burden of proof as to quantity of

methamphetamine. Id. To the extent that Defendant is restating the arguments already

made at sentencing and on appeal, he cannot show error or prejudice because the

arguments were already made and rejected. He has not identified additional or different

arguments or evidence available to but not utilized by counsel with regard to

methamphetamine quantity. Ineffective assistance of counsel is not shown.

Defendant concludes that "[t]he lack of assistance at these critical stages was

magnified by appellate counsel's failure to bring on appeal the due process violations,

amendment of the indictment as to the charged conspiracy and the matters plead in this

motion." Id., p. 17. Defendant has not alleged a due process violation or amendment to

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the indictment, whether at trial or as an issue preserved for appeal. He has not

established error or shown a reasonable probably that, but for the error, the outcome of

the appeal would have been different. See Smith v. Robbins, 528 U.S. 259, 285-86,

120 S.Ct. 746, 764, 145 L.Ed.2d 756 (2000) (defendant must show both that counsel

unreasonably failed to discover and raise non frivolous issues in a merits brief, and a

reasonable probability that but for the unreasonable failure to file a merits brief he would

have prevailed on appeal); Smith v. Murray, 477 U.S. 527, 535-536, 106 S.Ct. 2661,

2667, 91 L.Ed.2d 434 (1986) (where counsel raised 13 claims on appeal, counsel was

not professionally unreasonable in failing to pursue a particular argument on appeal);

Johnson v. Alabama, 256 F.3d 1156, 1188 (11th Cir. 2001), cert. denied, 535 U.S. 926

(2002) (petitioner claiming ineffective assistance of appellate counsel could not meet

"demanding test" of Strickland). "It is difficult to win a Strickland claim on the grounds

that appellate counsel pressed the wrong legal arguments where the arguments actually

pursued were reasonable in the circumstances," as counsel must be highly selective in

deciding the issues to raise on appeal. 256 F.3d at 1188. 

Finally, Defendant asserts that the cumulative effect of otherwise harmless errors

may require a new trial. Doc. 71, p. 17. Presumably he is referring to the errors of

counsel previously addressed. Since Defendant has not demonstrated any error of

counsel for Strickland purposes, the allegation of a cumulative effect does not entitle

him to any relief. 

Ground Four

Defendant claims that the Government breached the plea agreement by failing to

file a substantial assistance motion. Doc. 70, p. 6. Defendant quotes the "simple

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terms" of his plea agreement that "the United States Attorney . . . will file an appropriate

substantial assistance motion." Doc. 71, p. 18; Doc. 75, p. 17. Defendant claims that

Agent Moon's testimony established his cooperation, and that the court's instruction to

calendar the one year shows that the parties agreed to his assistance; concluding that,

"[c]learly, the record indicates the fulfillment of the agreement and the Court

acknowledged such in its instruction." Doc. 71, p. 18; Doc. 75, p. 17. 

Defendant has taken his points out of context. He omits the beginning of the

sentence quoted from the plea agreement, which makes clear that it is left to "the sole

discretion of the United States Attorney" whether Defendant would be deemed to have

provided substantial assistance. Doc. 40, p. 7. Moon's testimony was not conclusive as

to assistance provided. Indeed the Government noted possible problems for Defendant

obtaining a substantial assistance motion at the time of rearraignment and again at

sentencing, because he was trying to lessen his accountability for the

methamphetamine. The reminder to calendar the one year date was not an instruction

or agreement by the court that a motion be filed by the Government within that time. In

context, it was a reminder that the parties not allow the date to pass inadvertently. 

"'Substantial assistance' generally requires that the defendant's assistance has

yielded results that are useful to the government, not merely that the defendant

expended substantial effort or good faith in attempting to assist." United States v.

Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997), cert. denied, 522 U.S. 1067 (1998)

(citation omitted). Moreover, the Government's refusal to file a substantial assistance

motion is subject to judicial review only upon a showing of a constitutionally

impermissible motive, such as race or religion. Wade v. United States, 504 U.S. 181,

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185-86, 112 S.Ct. 1840, 1842-43, 118 L.Ed.2d 524 (1992); United States v. Forney, 9

F.3d 1492, 1499-1503 (11th Cir. 1993) (requiring unconstitutional motive for refusing to

file motion, even where there is a Government agreement to "consider" filing a motion,

where the determination of whether defendant provided substantial assistance was left

solely to the Government) (citing Wade, other citations and footnotes omitted) United

States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (citing Wade and Forney, other

citations omitted). 

"[A] claim that a defendant merely provided substantial assistance will not entitle

a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would

additional but generalized allegations of improper motive." Wade, 102 U.S. at 185-186,

112 S.Ct. at 1843-1844 (some citations omitted). There must be "an allegation and a

substantial showing" of unconstitutional motive to obtain judicial review. Forney, 9 F.3d

at 1502-03 (emphasis in original) (citing Wade, footnote omitted). See also 9 F.3d at

1500, n. 3 (fact that defendant asserted to the district court that the Government did not

fulfill its obligations under the plea agreement did not raise or preserve a "bad faith"

issue as there was no allegation of unconstitutional or discriminatory motive by the

Government) (citations omitted). Defendant here has made no allegation or indication

of an unconstitutional motive. 

Case 5:02-cr-00006-RH-WCS Document 77 Filed 10/26/06 Page 17 of 18
Page 18 of 18

Case Nos. 5:02cr6-RH and 5:04cv282-RH/WCS

Recommendation

It is therefore respectfully RECOMMENDED that the § 2255 motion filed by

Defendant Wilder, doc. 70, be DENIED WITH PREJUDICE. 

IN CHAMBERS at Tallahassee, Florida, on October 26, 2006. 

 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.

Case 5:02-cr-00006-RH-WCS Document 77 Filed 10/26/06 Page 18 of 18