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This cause was administratively re-assigned to the undersigned on August 31, 2007.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 5:01-cr-00022-RH-AK

BILLY JOE BUCHANAN,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc.186, Amended Motion to Vacate, and Doc. 187,

supporting memorandum, by Billy Joe Buchanan.1 The Government has filed its reply, Doc.

194, and Defendant has filed a reply. Doc. 199. 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 and a co-defendant, Ellie Vines, IV, were indicted for conspiracy to

manufacture, distribute, and possess with intent to distribute more than fifty (50) grams of

methamphetamine and more than five hundred (500) grams of a mixture containing a detectable

amount of methamphetamine and for possession with intent to distribute more than five (5)

grams of methamphetamine. Doc. 1. Before trial, the Government filed an Information and

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Notice of Intent advising Defendant that it intended to seek enhanced penalties at sentencing

based on a prior felony drug conviction. Doc. 18. 

Shortly before trial, Vines pled guilty as to the conspiracy count and a separate court

against him solely. Docs. 40-43.

At trial, Defendant was represented by Elizabeth Timothy. She focused her defense on

the character and reputation of the Government’s witnesses, e.g., by pointing out their drug use,

their arrests, their lack of credibility, and their “hope for some benefit from the government by

virtue of their testimony,” Doc. 159 at 172, and on exculpation, i.e., Defendant neither possessed

nor distributed the drugs found in Vines’ house. During the course of trial, the Court, on several

different occasions, advised Defendant that while he “should talk with Ms. Timothy about

[testifying] and consider her advice,” the decision regarding whether to testify in his own behalf

“is ultimately yours, not hers....” Doc. 128 at 335; see also Doc. 129 at 519-20, 527 and 581. At

the end of Defendant’s case, counsel announced:

For the record, I did speak with Mr. Buchanan yesterday at the close of business

about whether or not to testify, and he indicated that he wanted to hear all of the

case before he made the final decision, although he was leaning towards not

testifying.

Now, having heard everything, we have consulted again, and Mr. Buchanan does

not want to testify, and we are ready to rest.

Doc. 129 at 581. The Court then specifically questioned Defendant: “Mr. Buchanan, as I told

you earlier, that’s your decision. Is that your decision?” Defendant responded, “Yes, sir.” Id.

The jury found Defendant not guilty of the conspiracy charge but guilty of possession

with intent to distribute methamphetamine “in the total amount of five (5) grams or more[.]”

Doc. 115. Defendant was sentenced to 360 months imprisonment. Docs. 141 & 142.

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On appeal, Defendant was represented by Michael Ufferman. In that proceeding,

Defendant raised five claims that the Court erred by:

(1) denying his motion to suppress evidence seized as a result of the execution of

a search warrant at codefendant Ellie Vines’s house...(2) allowing the prosecutor

to make prejudicial remarks in his closing argument; (3) concluding that there

was sufficient evidence to support his conviction; (4) applying an enhancement

pursuant to U.S.S.G. § 4B1.1; and (5) refusing to depart downward based on

Buchanan’s assertion that the U.S. Attorney has a policy of seeking enhancements

under 21 U.S.C. § 851 in every case.

Doc. 179. The court found no error and affirmed. Id. More particularly, the court held:

Buchanan argues that the district court erred by concluding that there was

sufficient evidence because the government did not prove that he had the required

knowledge for a possession of methamphetamine with intent to distribute

conviction. According to Buchanan, because the methamphetamine was

concealed in a hutch, the government had to prove constructive possession. He

contends that the record does not support such a finding, as there is insufficient

evidence that Buchanan lived with Vines. He argues in the alternative that the

government merely proved possession and did not prove possession with intent to

distribute.

* * *

We conclude that the district court did not err in determining that there is

sufficient evidence to prove that Buchanan lived in Vines’s downstairs bedroom

and that he possessed methamphetamine. Vines testified that Buchanan moved in

with him in late July or early August 2001, and that Buchanan stayed in the

downstairs bedroom, where he installed a deadbolt lock on the bedroom door. 

Police searching Vines’s residence found Buchanan undressed in the downstairs

bedroom. Moreover, clothing found in the downstairs bedroom was consistent

with testimony describing Buchanan’s appearance. Evidence in the record

indicates that the 16.2 grams of methamphetamine were found in the downstairs

bedroom, and that other items related to the manufacture and use of

methamphetamine, including a Coleman fuel can with Buchanan’s fingerprints on

it, were found there and in and around the downstairs bathroom. Thus, the

evidence is sufficient to prove that Buchanan was in constructive possession of

the methamphetamine.

The evidence is also sufficient to prove that Buchanan intended to distribute the

methamphetamine....Russell Eddins...a regular methamphetamine user, testified

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that he could use three to six grams of methamphetamine in one to two weeks. 

Eddins sold a quarter ounce of methamphetamine, or six grams, to Buchanan for

$300. Thus, 16.2 grams of methamphetamine would last about five and a half

weeks...for an experienced used, and was worth over $800. We therefore

conclude that the evidence was sufficient to prove that Buchanan intended to

distribute the methamphetamine he possessed.

Id.

The court also found that the Court did not err in enhancing Defendant’s sentence as a

career offender based on a 1994 conviction for escape and a 1999 conviction for possession with

intent to distribute MDMA, ecstacy. Id.

Defendant then filed a motion to vacate, and in response to the Court’s order, an amended

motion to vacate. In the amended motion, Defendant claims that trial counsel was ineffective

“for interfering” with his right to testify and for “failing to request the jury be instructed that

simple possession of methamphetamine is a lesser included offense of possession with intent to

distribute methamphetamine.” Doc. 186. He also argues that Mr. Ufferman was likewise 

ineffective for failing the “pursue this issue on appeal.” Id. Defendant further maintains that

Timothy was ineffective for failing to inform the Court at sentencing “that the sentence was

limited to no more than ten (10) years pursuant to 21 U.S.C. § 841(b)(1)(D) because the

indictment did not allege and the jury did not find beyond a reasonable doubt whether noninjectable powder methamphetamine was properly rescheduled from Schedule III to Schedule

III....” Id. Again, he claims that Ufferman “failed to pursue this issue on appeal.”

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DISCUSSION

1. Right to testify and instruction on possession.

Defendant does not dispute that he discussed the issue of whether he should testify with

counsel. Doc. 188, App. 5. He maintains, however that Timothy “never informed me that

possession of methamphetamine is a lesser included offense of possession with intent to

distribute methamphetamine and I was entitled to a jury instruction on simple possession,” id.,

and that if he had known that possession was a lesser included offense, he would have testified

as follows:

I was a user and not a seller of methamphetamine; on the evening of Friday 28

September 2001 Mr. Vines and I went to work out at Lee’s Gym; after working

out Mr. Vines and I returned to Mr. Vines’ residence to shower and get dressed to

go out to a country and western bar; at about 8 p.m. Mr. Vines left the residence

to run some errands; I was preparing to take a shower when the Panama City

Police executed the search warrant and found the Crown Royal bag containing the

sixteen (16) grams of methamphetamine; I knew Mr. Vines kept

methamphetamine at his residence; and I anticipated using methamphetamine

with Mr. Vines.

Id.

Defendant does not really contend that counsel violated his inherent right to testify. 

Instead, his argument is that he now disagrees with part of the strategy she used at trial, namely,

that the drugs recovered in Vines’ house were not his. In that situation, Strickland v.

Washington, 466 U.S. 668 (1984), controls. 

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

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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). This standard is objective, and “it

matters not whether the challenged actions of counsel were the product of a deliberate strategy or

mere oversight.” Gordon v. United States, 496 F.3d 1270, 1281 (11th Cir. 2007). “The relevant

question is not what actually motivated counsel, but what reasonably could have motivated

counsel.” Id. When the court “can conceive of a reasonable motivation for counsel’s actions,” it

can deny the claim of ineffectiveness without evidentiary hearing. Id. “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

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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

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

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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).

In this Court’s view, it was reasonable for counsel to use an exculpation defense, and she

did not act deficiently in taking that course. By focusing on a defense that nothing in the

bedroom where Defendant retreated when officers executed the search warrant, except personal

items, belonged to Defendant, counsel kept the jury’s attention away from the methamphetamine

manufacturing ingredients which not only were in that room but also could be connected to

Defendant through receipts and fingerprints and secured a not guilty verdict on the conspiracy to

manufacture charge. If Defendant had testified as he now suggests, he would have added

nothing about his drug use that the jury had not heard from others, and he would have opened

himself to questions regarding his prior convictions, including a 1999 conviction for possession

of Ecstacy with intent to distribute; his lack of verifiable, legitimate employment; and his source

of funds to purchase and color coordinate his outfits with expensive shoes and sunglasses and to

indulge a penchant for knives and watches.

Furthermore, a request for a simple possession instruction would not have been

successful even if Defendant had testified regarding his drug use. Defendant was entitled to a

lesser included offense instruction only “if the evidence would permit a rational jury to find him

guilty of the lesser offense and not the greater.” United States v. Catchings, 922 F.2d 777, 780

(11th Cir. 1991). “In the specific context of possession and distribution of drugs, this circuit has

held that where the factual issues are the same for both the lesser offense of possession and the

greater offense of distribution, the instruction on possession is not required.” Id. While there is

no dispute that Defendant abused drugs and even perhaps that he could consume larger quantities

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of methamphetamine than some of his friends and acquaintances, according to the testimony, the

amount of methamphetamine recovered from the bedroom, 16.2 grams, is an amount far

exceeding that associated with personal consumption.

Furthermore, when a defendant relies on an exculpatory defense that, if believed, would

lead to acquittals on both the greater and lesser charges, he is not entitled to an instruction on the

lesser included offense. United States v. Brown, 26 F.3d 119, 120 (11th Cir. 1994). Here, the use

of the “it ain’t mine” defense would have led to acquittals on both simple possession and on the

distribution charge because if Defendant did not possess the methamphetamine, he could not

have been convicted of the distribution charge.

In short, Timothy did not interfere with Defendant’s right to testify and she did not act

deficiently in pursuing the defense she chose or in not requesting a frivolous instruction. 

Consequently, Ufferman was not deficient in failing to raise these issues on appeal.

2. Scheduling of methamphetamine.

In this claim, Defendant argues that counsel was ineffective for failing to argue that “the

rescheduling of non-injectable methamphetamine from Schedule III to Schedule II increased the

statutory maximum in violation of Apprendi.” Doc. 187 at 10. This claim is patently frivolous. 

Methamphetamine was rescheduled to a Schedule II drug in 1971, and the process by which the 

rescheduling occurred has been upheld by every court that has considered it, including the

Eleventh Circuit. United States v. Lane, 931 F.2d 40, 41 (11th Cir. 1991). Apprendi has no

application in the administrative and legislative scheduling of a drug, and Defendant has cited to

no authority to support such a proposition. Thus, neither trial nor appellate counsel was

ineffective for failing to raise an obviously meritless argument.

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CONCLUSION

Having carefully considered the matter, the Court finds no merit to any of Defendant’s

claims. Accordingly, it is respectfully RECOMMENDED that the motion to vacate, Doc. 186,

be DENIED.

IN CHAMBERS at Gainesville, Florida, this 20th day of February, 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

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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