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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. 5:01cr16-RH 

vs. Case No. 5:04cv62-RH/WCS

WILLIAM DEAN McCOLLUM, 

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY MOTION TO VACATE

Defendant filed an amended motion to vacate sentence pursuant to 28 U.S.C. §

2255. Doc. 88. The Government filed a response in opposition and request to

supplement the record. Doc. 91. Defendant's request for discovery was denied. Doc.

96. Defendant filed a traverse. Doc. 99. 

History of the Case 

Defendant was charged in a one count superseding indictment with being a felon

in possession of a firearm in and affecting commerce, having three previous convictions

for a violent felony or serious drug offense. Doc. 16. The indictment charged violation

of 18 U.S.C. § 922(g) (prohibiting possession) and § 924(e) (the Armed Career Criminal

Act, raising the penalty to a 15 year mandatory minimum to a maximum of life based on

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1

 This and other documents were originally sealed as Defendant was cooperating

with the Government, but later unsealed by court order. See Doc. 82, pp. 2-4 (allowing

plea to be tendered in camera, noting cooperation) and doc. 79 (granting motion to

unseal all documents). 

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

the requisite prior felonies). Defendant entered into a plea and cooperation agreement

with the Government. Doc. 25.1 He agreed that he was pleading guilty because he

was, in fact, guilty. Id., p. 4. He agreed that if it went to trial the Government would

present evidence as set out in the statement of facts. Id., pp. 4, 7. The statement of

facts provides:

That sometime prior to July 5, 2001, William Dean McCollum purchased a

Sig Sauer pistol, serial number B243210, from a Richard Grimm. On or

about July 5, 2001, Mr. McCollum possessed the Sig Sauer pistol during

the following circumstances. Mr. Grimm offered to purchase the Sig

Sauer from Mr. McCollum for approximately $1,000.00. Mr. McCollum

agreed to the offer. On or about July 5, 2001, William Dean McCollum

possessed the Sig Sauer pistol, serial number B243210, and provided the

pistol to Mr. Grimm in exchange for $1,000.00 cash.

The Sig Sauer pistol, serial number B243210, which [was] possessed,

sold, or traded by William Dean McCollum, was manufactured in the

country of Germany and had been transported in interstate or foreign

commerce prior to Mr. McCollum's possession on July 5, 2001. 

Id., p. 7. 

The plea agreement provided that whether to file a substantial assistance motion

would be at the sole discretion of the Government, the granting of relief was left solely

to the court, and that "[r]egardless of the defendant's cooperation . . . the defendant

may be deemed not to have provided substantial assistance." Id., p. 5-6. 

At the guilty plea hearing, the Government again summarized the facts expected

to be proven at trial. Doc. 82, pp. 13-14. Defendant's position was that it was a trade

rather than sale of the firearm. Id., pp. 15-17. He admitted that he had possessed a

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Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

firearm in or affecting commerce having been convicted of a felony, and that he had

three previous convictions for either a violent felony or serious drug offense committed

on occasions different from one another. Id., pp. 15-17. He understood he faced a

minimum sentence of 15 years. Id., p. 17. Defendant verified his signature on the plea

agreement and said that counsel explained the plea and its consequences to him. Id.,

pp. 22-23. The guilty plea was accepted. Docs. 28 and 42. 

At sentencing, Defendant's objection to ¶ 38 of the PSR was found to be valid,

but the change did not affect the sentence. Doc. 63, pp. 3-4. Since a § 5K1.1 motion

was not filed, it was "a mandatory sentence, plain and simple." Id., p. 5. Counsel

reserved the right to raise objections to the guidelines in the event the Government filed

a substantial assistance motion under Fed.R.Crim.P. 35. Id., pp. 5-6. 

Defendant was again advised that the minimum sentence was 15 years, and

Defendant told the court he thought it was an unjust sentence. Id., pp. 7-8. Counsel

said that he had gone over the mandatory nature of the sentence with Defendant and

his family, and "[w]e made an effort to do some substantial assistance that fell short,

apparently, in the eyes of the government." Id., p. 9. Defendant was sentenced to 180

months. Id., p. 11. 

Defendant took an appeal. The Eleventh Circuit affirmed, rejecting arguments

that the firearm needed more than a minimal nexus to interstate commerce, and that the

prior South Carolina convictions for assault and battery of a high and aggravated nature

(ABHAN) did not qualify for Armed Career Offender sentencing. Doc. 73. 

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Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

Standard of Review

As set forth ahead, Defendant raises substantive claims and claims that

counsel's failure to raise those claims was ineffective assistance of counsel. The

substantive claims are procedurally defaulted, and "ineffective assistance adequate to

establish cause for the procedural default of some other constitutional claim is itself an

independent constitutional claim." Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct.

1587, 1591, 146 L.Ed.2d 518 (2000) (emphasis by the Court); see also Massaro v.

United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 1696, 155 L.Ed.2d 714 (2003)

(ineffective assistance of counsel is cognizable under § 2255 whether or not it could

have been raised on appeal). Thus, the related substantive claims are considered in

the context of the claims of ineffective assistance of counsel. 

"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). The court need not approach the Strickland inquiry in any

particular order, or address both prongs if an insufficient showing is made on one. 466

U.S. at 697, 104 S.Ct. at 2069. 

Since Defendant challenges his guilty plea based on counsel's allegedly

erroneous advice, he "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

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2

 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

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:

[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).

Grounds Raised

Alleged Brady2 Material

Grounds one, two and five are set forth in the amended § 2255 motion form and

supporting memorandum (filed together as doc. 88), at pp. 3-3(a), 4(d) (motion) and pp.

3-13, 16-17 (memorandum). Defendant asserts that the prosecution withheld Brady

material, that counsel was ineffective for failing to demand discovery of this material,

and that but for the Government's withholding of it and counsel's ineffectiveness,

Defendant would not have entered a guilty plea.

There are two aspects of this claim. Defendant contends that there was Brady

evidence that the firearm (a 9 mm Sig Sauer) was a "prop" with the firing pin and firing

mechanism removed, the firearm was never test-fired, and thus was not a "firearm" as

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3

 The pages bear various numbers, not in any particular order. The court has

numbered the bottom right corner of the pages of the court's copy, for ease of

reference.

4

 18 U.S.C. § 921(a)(3) supplies the definition of "firearm" for § 922.

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

intended by § 922(g). Defendant also asserts that the evidence against him might have

been suppressed on the basis of entrapment; and if not suppressed it could have been

argued (to a jury) that the Government improperly engineered the crime by supplying

the firearm to him in the first place, and then buying it back. 

Defendant has supplied exhibits in support of his claims. Doc. 88, Exs. A and B. 

Exhibit A is 16 page composite exhibit, the first page of which is a response dated April

9, 2003, to Defendant's Freedom of Information Act (FOIA) request for records held by

ATF. Doc. 88, Ex. A, p. 1.3 The file (in response to the FOIA request) consisted of 319

pages. Id. The other pages in Ex. A are presumably documents supplied in response

to Defendant's request.

There is no evidence that a "prop" firearm used by the ATF is, by definition,

inoperable. But even if the firing pin of this 9 mm Sig Sauer had been removed, it was

still a "firearm" as defined by 18 U.S.C. § 921(a)(3) because, as that statute provides, it

could "readily be converted to expel a projectile by the action of an explosive."4

 Our

circuit has held that the Government does not have to produce evidence that the firearm

was operable. United States v. Adams, 137 F.3d 1298, 1300 (11th Cir.1998). So has

every other circuit to consider the question:

Although we have yet to answer the question, every other circuit to

consider it has concluded that an inoperable weapon falls within §

921(a)(3)'s definition of a "firearm." See, e.g., United States v. Adams,

137 F.3d 1298, 1300 (11th Cir.1998); United States v. Maddix, 96 F.3d

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Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

311, 316 (8th Cir.1996); United States v. Yannott, 42 F.3d 999, 1006 (6th

Cir.1994); United States v. Perez, 897 F.2d 751, 754 (5th Cir.1990); see 

also United States v. Brown, 117 F.3d 353, 354-56 (7th Cir.1997) (holding

that inoperable gun is "firearm" for purposes of Sentencing Guidelines,

where § 921(a)(3)'s definition of firearm was "identical, in all relevant

respects," to Guidelines' definition). 

United States. v. Rivera, 415 F.3d 284, 286 (2nd Cir. 2005) (firing pin broken and firing

pin channel flattened); United States v. York, 830 F.2d 885, 891 (8th Cir. 1987), cert.

denied, 484 U.S. 1074 (1988) (firing pin missing and the cylinder and barrel did not

properly line up). Thus, the premise of the first part of this claim is legally without merit.

Further, it is factually without merit. While there are references in this record to

using "props" for the controlled sale, including a memorandum titled "Prop Request,"

there is no reference to the Sig Sauer firearm at issue as a prop. Id., pp. 5, 6, 9, and

13. Three Rossi snub nose .38 caliber revolvers were sought as props for the

controlled purchase because Defendant was interested in obtaining a revolver and more

interested in trading the Sig Sauer for another firearm than in selling it outright. Id. The

Rossi revolvers requested were certified for use as undercover props. Id., p. 13. There

is a handwritten note in the margin that only one Rossi would be used. Id. 

The informant would be instructed to "trade or sell the Rossi revolver to

MCCOLLUM as the situation dictate[d]," but was "instructed that it is preferable to

purchase the Sig pistol from MCCOLLUM outright if possible without having to display

the props to MCCOLLUM." Id., p. 5. If Defendant sold the Sig Sauer outright for cash,

the informant was to leave the meeting after the deal and the Government would

present the case to the grand jury; if a trade was made then the surveillance teams

would standby for an arrest. Id. As it happened, Defendant accepted cash without a

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5

 The Government asserts that "the defendant's claims that he never received

evidence of 'entrapment' (defendant characterizes the undercover handgun sale as

entrapment) are unsupported and contrary to the record," as Defendant received the

tape recordings and transcripts during discovery. Doc. 91, p. 4. The court does not

read Defendant's Brady claim as based on his never receiving the tapes or transcripts,

or that he never received evidence of "entrapment" as though that is synonymous with

the undercover sale. The Brady claim appears based on the records Defendant

obtained later, not through discovery but through his FOIA request, referencing firearms

as props to be used in the controlled buy. 

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

trade, and the informant left the meeting. Doc. 88, Ex. B (transcript of July 5, 2001,

conversation). 

The taped conversations between Defendant and the informant, transcripts of

which were supplied to Defendant during discovery,5 reflect that the informant told

Defendant he was interested in buying his former Sig Sauer back, and Defendant

expressed interest in a trade (rather than sale) for another firearm, and said he liked

shiny revolvers. Doc. 91, Attachment 1 (including transcripts of audiotapes on June 20,

June 22, and July 5, 2001). It is clear from the record (particularly clarifications by the

defense at rearraignment), that Defendant was concerned that he not be caught selling

a firearm, and wanted it clear that he traded rather then sold firearms. References to

props were to firearms to be used in obtaining the Sig Sauer, not the Sig Sauer itself. 

For these reasons, the first part of this claim is legally and factually without merit. 

The second part of the claim is that the Sig Sauer was originally supplied to the

informant by the Government. In requesting discovery for his § 2255 motion, Defendant

asserted that "had he known prior to the Rule 11 change of plea hearing that the

Government's (ATF) agencies had supplied the firearm (i.e., 9 .mm Pistol) to it's [sic]

government informant to trade to him in order to place it in his possession, where it

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obtained the evidence of his possession of the firearm by unlawful police 'entrapment,'

to furnish it's [sic] informant a $1000.00 to 'buy-back' the Government's pistol," he would

not have pleaded guilty to the indictment. Doc. 92, p. 2. He asked that the Government

produce all 319 pages from the ATF's investigation in an unredacted form as he was

provided the pages in redacted form. Doc. 93, pp. 1, 3. He asserts that the full report

would support his claim "that the firearm (9 .mm Pistol) charged in the Government's

indictment originated from the Government (ATF) agency. For it was the Government's

property that it used in the undercover 'buy-back' operation." Id., p. 2. The court denied

discovery, finding that "Defendant seeks discovery to show that the firearm originated

with the ATF. In reviewing the 2255 claims, the court will assume this allegation is

correct." Doc. 96.

The assumption made by the court in denying this motion for discovery was

misplaced, but the denial of discovery was correct. Attached to Defendant's § 2255

motion is a memorandum from the Resident Agent in Charge of the Pensacola Office of

the ATF to the Tampa Field Division, subject : "Prop Request." Doc. 88, ex. A, p. 6. 

This memorandum states that the Pensacola Field Office did not initiate its investigation

into the illegal firearms possession of Defendant until June 7, 2001. Id. The memo

further states that the informant "has made contact and previously traded a Sig Sauer

P228 pistol to MCCOLLUM . . . ." Id. (emphasis added). Likewise, the sworn

allegations of the criminal complaint assert that ATF Agent Saier interviewed the

informant (Grimm) on June 7, 2001, and the informant told him that he had known

Defendant since November of 2000. Doc. 1. The complaint asserts that at this

interview, on June 7, 2001, the informant "said that in May of 2001 MCCOLLUM traded

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a Smith and Wesson Model 29 and $500.00 in cash to the CI in exchange for a Sig

Sauer P228 pistol and six ammunition magazines." Doc. 1, attachment, p. 1. See also

doc. 20 (Government Notice of Intent to Offer Extrinsic Act Evidence), p. 2 (Grimm sold

the Sig Sauer to Defendant around May of 2001). At the June 7 meeting the informant

provided the serial number of the Smith and Wesson, and later provided the serial

number for the Sig Sauer. Id. 

Thus, there is no evidence that the ATF directed the informant to trade the Sig

Sauer to Defendant in May, 2001. Indeed, had the Government been involved at the

time of the earlier transaction, Defendant would have been charged with possession of

the Smith and Wesson Model 29, which he traded (along with cash) for the Sig Sauer. 

There is no need for further discovery on this point as Defendant has obtained the

discovery he needs and the discovery does not support his claim. 

Further, even if the Sig Sauer had originated from the ATF, Defendant had no

entrapment defense to make. The Government had evidence that Defendant offered to

sell a shotgun to the informant, Grimm, around February of 2001; that sometime around

"spring break" in 2001, Grimm sold to Defendant a Llama .45 handgun, and a North

American Arms .22, both for cash; and that on two occasions between December 2000

and the time of arrest, Defendant offered to sell a handgun with missing or obliterated

serial numbers. Doc. 20, pp. 1-2. Given this evidence, an entrapment defense had little

hope of success. See, United States v. Francis, 131 F.3d 1452, 1455-56 (11th Cir.

1997), cert. denied, 525 U.S. 986 (1998) (valid entrapment defense requires

government inducement of crime and defendant's lack of predisposition to commit the

crime prior to inducement); United States v. Walther, 867 F.2d 1334, 1342 (11th Cir.

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6

 Defendant cites Ruiz, referencing both the Ninth Circuit opinion and the

Supreme Court opinion, for the proposition that a defendant may not by plea agreement

waive the right to receive undisclosed Brady material. Doc. 88 (memorandum) p. 11;

doc. 93, pp. 4-5; doc. 99, pp. 3-4. But the Ninth Circuit's opinion was reversed, and the

Supreme Court upheld the waiver. 536 U.S. at 629-631, 122 S.Ct. 2455-56. The

Constitution "permits a court to accept a guilty plea, with its accompanying waiver of

various constitutional rights, despite various forms of misapprehension under which a

defendant might labor." Id., at 630-631, 122 S.Ct. at 2456 (collecting cases). The Court

found it difficult to distinguish a defendant's ignorance of possible impeachment

evidence from other forms of ignorance in these cases. Id. The Court also found no

error in requiring a defendant to waive the right to receive information regarding any

affirmative defense that might be raised at trial. Id., at 633, 122 S.Ct. at 2457. 

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

1989) ("[e]vidence of prior acts of misconduct is admissible as a matter of predisposition

in rebuttal to an entrapment defense."). 

As a consequence, there was no Brady violation because evidence regarding the

requested revolvers was not favorable to Defendant (either as exculpatory or

impeachment evidence), and was not material. See Stephens v. Hall, 407 F.3d 1195,

1203 (11th Cir. 2005) (pet. for cert. filed August 2, 2005) (to establish a Brady violation

for suppression of evidence by the prosecution, the evidence must be favorable to the

accused, either as exculpatory or for impeachment, and it must be material; i.e., there

must be a reasonable probability that if the evidence was disclosed, the result of the

proceeding would have been different) (discussing Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Bagley, 473 U.S. 667, 678, 105

S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985), other citations omitted). See also United

States v. Ruiz, 536 U.S. 622, 633, 122 S.Ct. 2450, 2457, 153 L.Ed.2d 586 (2002) ("the

Constitution does not require the Government to disclose material impeachment

evidence prior to entering a plea agreement with a criminal defendant.").6

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Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

 Use of Prior Convictions

In grounds three and four, Defendant asserts that his uncounseled convictions

from 1976 and 1977 should not have been used to sentence him under § 924(e), and

that counsel was ineffective to not raise this challenge at sentencing or on appeal. 

Doc.88, at pp. 3(b) and 4 (motion) and pp. 13-16 (memorandum). In ground six,

Defendant asserts that he has asked the state court to vacate his uncounseled

convictions, and wishes to preserve the right to challenge the § 924(e) enhancement if

he is successful in state court. Id., at p. 4(e) (motion) and p. 17 (memorandum). 

With the exception of convictions obtained in violation of the right to counsel, a

defendant has no right to collaterally attack prior state convictions at his federal

sentencing or by § 2255 motion. Custis v. United States, 511 U.S. 485, 487, 114 S.Ct.

1732, 128 L.Ed.2d 517 (1994) (also involving a § 924(e) sentence); Daniels v. United

States, 532 U.S. 374, 382-383, 121 S.Ct. 1578, 1583-84, 149 L.Ed.2d 590 (2001) (§

2255 motion challenging sentence enhanced under § 924(e)). "A defendant may

challenge a prior conviction as the product of a Gideon [v. Wainwright, 372 U.S. 335, 83

S.Ct. 792, 9 L.Ed.2d 799 (1963) ] violation in a § 2255 motion, but generally only if he

raised that claim at his federal sentencing proceeding." Daniels, 532 U.S. at 382, 121

S.Ct. at 1583 (citations omitted); see also, Lackawanna County District Attorney v.

Coss, 531 U.S. 923, 121 S.Ct. 1567, 1573, 149 L.Ed.2d 608 (2001) (extending rationale

to the § 2254 context). Under Gideon, it is unconstitutional to try a defendant for a

felony unless defendant is represented by counsel or validly waived the right to counsel. 

See Custis, 511 U.S. at 495-496, 114 S.Ct. at 1738 (discussing Gideon, other citations

omitted). 

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7

 For ease of reference, the court has numbered the bottom right corner of the

pages (not all of which are legible) of the court's copy.

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

Here, Defendant did not raise this claim at sentencing, but asserts that the claim

was not raised due to ineffectiveness of counsel. This is a potentially viable § 2255

claim, if supported. It is not supported here.

Defendant includes an affidavit with his § 2255 motion. Doc. 88 (unlabeled

attachment). He states that he entered a guilty plea to robbery in 1976 on the advice of

Jim Dunn, the County Solicitor and not appointed defense counsel. Affidavit, pp. 1-2. 

He states that he was charged with two assault and batteries and Jim Dunn again told

him to plead guilty. Id., p. 2. Defendant states that he never knew that he had the right

to counsel, or that Jim Dunn was the County Solicitor or what the role of a solicitor was

with the court. Id., p. 3.

Attached to the § 2255 motion in support of Defendant's related claims is

composite Ex. C. It reflects that Defendant filed a motion in January 2004, in Horry

County, South Carolina, challenging his 1976 and 1977 convictions. Id., pp. 1, 3.7

 

The superseding indictment in this case charged (as the prior felonies) that on or

about October 11, 1976, Defendant was convicted in South Carolina of armed robbery

and larceny; that on or about June 21, 1977, Defendant was convicted in South

Carolina of two counts of "assault and battery of a high and aggravated nature;" and

that on or about January 19, 1989, Defendant was convicted in the Eastern District of

Virginia of making a false statement to a firearms dealer. Doc. 16. 

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8

 The PSR reflects that Huggins also represented Defendant in connection with

an armed robbery sentence imposed on October 8, 1976. PSR, ¶ 33. It is noted that in

his pro se motion to correct presentence report, Defendant asserted as to ¶ ¶ 33-34: 

"[i]ncorrect attorney, only one count armed robbery, and robbery both on same day, not

consecutive days." Doc. 64, p. 3, item 24. Defendant next asserted that, as to ¶ 35,

"once again defendant was not represented by an attorney," and as to ¶ 36 "defendant

did not have an attorney." Id., items 25 and 26. The motion was denied as untimely

and, "so far as shown by this record, unfounded on the merits." Doc. 65. 

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

The PSR indicates that Defendant "was represented by Attorney Palma Huggins"

in connection with the conviction of October 11, 1976. PSR, ¶ 34.8 

The PSR reflects that Defendant "was represented by an attorney" in connection

with convictions of June 21, 1977, for assault and battery with intent to kill and assault

and battery of a high and aggravated nature. PSR, ¶ ¶ 35-36 (referencing case

numbers 77-GS-26-305 and 77-GS-26-353). According to his exhibits, Defendant was

charged with assault and battery with intent to kill Kenneth Williams with a steak knife

on or about May 6, 1977 (77-GS-26-305). Doc. 88, Ex. C, pp. 10, 15. Attorney Joe

Reaves was appointed to represent Defendant on that charge on May 10, 1977. Id., p.

9. Defendant was charged with assault and battery of a high and aggravated nature,

using his hands, fists and feet, on jailer French Collins, on or about June 1, 1977 (77-

GS-26-353). Id., p. 7. On June 21, 1977, with regard to the first offense, assault with

intent to kill Williams, Defendant entered a guilty plea to assault and battery of a high

and aggravated nature; he was sentenced to six years. Id., p. 16. On the same day, he

entered a guilty plea to the second offense, assault upon Collins, and received a three

year sentence. Id. Since Defendant had a lawyer to represent him on the charge

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Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

involving victim Williams (attorney Reaves), it is reasonable to infer that the same

lawyer represented Defendant on both offenses. 

The PSR also reflects that Defendant "was represented by an attorney" in

connection with the federal conviction of January 19, 1989, in the Eastern District of

Virginia. PSR, ¶ 37. 

Counsel made no objection to paragraphs 33-37 of the PSR. See Objections to

the Presentence Report dated February 20, 2002. At sentencing, Defendant told the

court he had read the PSR and discussed it with counsel. Doc. 63, p. 3. If Defendant

did not have counsel for a prior conviction then surely he would have known it, and

would have known that any indication to the contrary in the PSR was erroneous. He

should have advised counsel of any factual inaccuracies when they reviewed the PSR

together. Failing to investigate the truth of factual matters set forth in the PSR and

conceded by Defendant is not professionally unreasonable. See Strickland, 466 U.S. at

690-91, 104 S.Ct. at 2066 ("counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations unnecessary. . . . [A]

particular decision not to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel's judgments.")

(emphasis added). 

The PSR, as well as the state court records produced by Defendant himself,

show that Defendant was represented by counsel for the prior convictions. Defendant's

conclusory allegations, contradicted by the record and unsupported by any other

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9

 Defendant sought relief in state court in January of 2004. Doc. 88, Ex. C. 

Defendant has given no indication that relief was granted, nor has he obtained any

documentation from the state courts to show that he was unconstitutionally denied

counsel in connection with the prior convictions. 

Case Nos. 5:01cr16-RH and 5:04cv62-RH/WCS

evidence,9 fail to demonstrate that he was actually denied counsel for the prior

convictions in violation of Gideon. Defendant has not demonstrated that he was

improperly sentenced under § 924(e), or that counsel was ineffective for failing to

challenge the use of his prior convictions to challenge sentencing under § 924(e). 

Recommendation

It is therefore respectfully RECOMMENDED that Defendant's amended § 2255

motion, doc. 88, be DENIED WITH PREJUDICE.

IN CHAMBERS at Tallahassee, Florida, on September 7, 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.

Case 5:01-cr-00016-RH-WCS Document 101 Filed 09/07/05 Page 16 of 16