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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

vs. 3:04cr1/LAC

3:06cv245/LAC/MD

LA WANDA NALL,

 Defendant.

REPORT AND RECOMMENDATION

This matter is before the court upon a motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. §2255. The present motion was docketed by the

clerk on June 6, 2006. (Doc. 145). The court initially recommended that the motion

be dismissed as premature due to the pendency of the defendant’s petition for

certiorari (doc. 146). Defendant filed her § 2255 motion pro se, but the objections to

the report and recommendation were filed by an attorney who had not filed a notice

of appearance in the case. (Doc. 148). The defendant’s petition for certiorari was

denied shortly thereafter, and the court vacated its recommendation and directed the

government to respond. (Doc. 151 & 152). The government filed its response (doc.

153) and the court entered an order directing defendant to reply. (Doc. 154). This

order was returned to the court as undeliverable on October 4, 2006 (doc. 155). 

Because the defendant failed to keep the court apprised of her current address, on

November 2, 2006 the court entered a recommendation that the case be dismissed

without prejudice. Counsel Brian Shaughnessy filed a motion for extension of time

to file a response/reply on November 17, 2006, and on November 29, 2006 filed a

motion for leave to enter an appearance. (Doc. 157 & 158). The court vacated its
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second report and recommendation and granted the defendant an extension of time

in which to respond. Defendant filed her reply/response on February 13, 2007. (Doc.

167). On February 23, 2007 she filed a Certificate of Service of Bulk Affidavit (doc.

169). On May 16 and 18, 2007 she filed a motion for leave to file supplement

opposition and bulk exhibit (doc. 173 & 174) to which the government objected. 

(Doc. 175). 

The matter is referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After a

careful review of the record and the arguments presented, it is the opinion of the

undersigned that defendant has not raised any issue requiring an evidentiary

hearing, Rules Governing Section 2255 Cases 8(a) and (b), and that the motion

should be denied.

BACKGROUND

Defendant was charged in a ten count superseding indictment with eight

counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and two counts of wire

fraud in violation of §§1343 and 2. (Doc. 18). The office of the Federal Public

Defender was appointed to represent the defendant, and she was initially

represented by then-Assistant Federal Public Defender Elizabeth Timothy from that

office.1

 (Doc. 10). After now Judge Timothy’s appointment to the federal bench, CJA

attorney Michelle Lynn Hendrix was appointed on March 9, 2004, and defendant’s

trial was continued until March of 2004. (Doc. 21 & 23). On May 3, 2004, defendant

filed a motion for withdrawal and substitution of counsel, seeking to substitute

Gregory Smith as retained counsel in this cause. (Doc. 32 & 33). Ms. Hendrix noted

that defendant was dissatisfied with the representation she provided and that she

and her client disagreed on “a number of fundamental matters relating to the

1

Counsel’s affidavit reflects that Ms. Timothy relayed to him that defendant might be examined at the

Federal Medical Facility at Butner North Carolina because of concerns over her state of mind/competency. 

(Doc. 153, app. C at 8). There is no evidence in the record that this mental examination ever occurred. 

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defendant’s response to and defense of the charges against her.” (Doc. 32 at 2). 

The court granted the motion contingent upon counsel’s ability to meet the May 24,

2004 trial schedule. (Doc. 34). Gregory Smith certified his ability to meet the trial

schedule and represented the defendant at the trial which began on May 24, 2004.2

Mr. Smith moved to withdraw on July 10, 2004, noting that he had been discharged

without warning or advance notification. (Doc. 66). Defendant retained Brian W.

Shaughnessy, current counsel of record, to represent her at sentencing. 

The defendant was essentially alleged to have removed property from two

businesses she owned, reported the items stolen during burglaries and filed a false

insurance claim with her insurance carrier, State Farm, for reimbursement. In order

to execute her scheme to defraud, the government charged that she knowingly

caused to be delivered by the U.S. Postal Service 8 envelopes containing documents

for processing with respect to her burglary claim, as set forth in paragraph 19 of the

PSR. And, in order to execute her scheme she knowingly transmitted two facsimile

transmissions by means of wire communication from Alabama to State Farm in

Florida as set forth in paragraph 20 of the PSR. 

The government set forth its version of the facts of the case in detail at pages

4-29 of its appellate brief in this case, (doc. 153, exh. A). The Eleventh Circuit’s

opinion affirming defendant’s conviction and sentence contains a significantly

abbreviated and somewhat “sanitized” version3. United States v. Nall, Case 04-

14998, 146 Fed.Appx. 462, 463-65 (11th Cir. 2005) (per curiam) (doc. 153, exh. B). The

Eleventh Circuit found that the testimony at trial included the following facts.

2

Mr. Smith notes in the affidavit filed in response to the pending motion to vacate that he had been

representing the defendant in the defense of a foreclosure action at the time she as indicted and arrested. 

Ms. Nall had expressed concerns about the quality of representation she was being provided by Elizabeth

Timothy and Michelle Hendrix, claiming that they were neither well-prepared nor aggressive enough. Ms. Nall

negotiated with Attorney Smith for his services in this matter although he had limited experience in federal

court and no prior federal criminal experience. (Doc. 153, app. C at 7-8).

3

The Eleventh Circuit’s opinion did not focus on some of the more serious problems with defendant’s

case, including the defendant’s myriad credibility issues and her blatant assertion that at least four of the

government witnesses were untruthful in their testimony against her.

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Defendant LaWanda Nall retained insurance coverage through State Farm for

her two businesses, located on Palafox Street and Hood Drive. At one point Nall’s

coverage had been suspended for lack of payment, and Nall went to the State Farm

agency very upset and worried about what would have happened if her businesses

had been robbed while her policy was suspended. Nall’s visit to the agency

occurred about 3 days before she filed her claim for property loss during the first

alleged burglary at the Palafox office. Nall alleged that a man by the name of Dr.

Yates was responsible for the theft because the missing items, paperwork, files, and

computer items, related to a lawsuit between Nall and Yates. The business appeared

to have been ransacked, although some valuable items were not taken. Nall told law

enforcement that the doors and windows had been secured and the alarm set when

she left the office. 

About a month after this burglary, Nall reported that her car was broken into

and a key ring was stolen, which included a key to the Hood Drive office. A few days

after that, Nall reported that the Hood office had been burglarized. Several weeks

later, some of the purportedly “stolen” items were found at the Hood office and at

a storage shed allegedly rented by Nall under another name.4

 The crime scene

investigation at the Hood office found no fingerprints on the door, lock, or windows,

and no signs of forced entry, although Nall was the only person besides her landlord

who had keys to the property. 

Claims agents became suspicious about the burglaries, and State Farm Fraud

Investigator Keith Pearce was brought in to investigate. Pearce noted

inconsistencies in defendant’s stories about whether the doors were locked, the

windows closed and the alarm set. Pearce had the lock removed from the Hood

4

Nall’s rental of the storage shed in Brewton Alabama under the name of her aunt, Dot Johnson, was

a key issue at trial due to the existence of two lease agreements, purportedly for the same shed. One was

signed in March of 2001, and the other was signed on June 20, 2001. The government presented testimony

to support its position that the March, 2001 agreement was a false document created by defendant following

her indictment, maintaining that defendant had secured a blank rental agreement from the storage facility. 

Defendant vigorously disputed the suggestion that she had falsified the document, although it was not signed

by an employee of the storage rental facility in accordance with the facility’s ordinary business practice. 

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Drive address and sent it to locksmith Richard Pacheco for analysis, along with the

three keys he obtained from Nall and her landlord. Pearce testified that neither the

locksmith who removed the lock nor any police officer tested the keys in the lock

before it was sent for analysis because Pearce wanted the lock to be checked for

tampering, knowing that no other key had been used since the break-in.5

Pacheco testifed that he conducted a microanalysis examination of the Hood

lock, but that he did not find any signs of tampering. He also checked the three keys

he had been given for signs that duplicates had been made and found that none of

the keys had recently been used to make copies. Pacheco also explained that he

had not been asked originally to determine which key was last used in the lock, but

that he had done so later upon request. Pacheco testified that the last key used in

the lock was one of the keys in Nall’s possession, and explained the technique he

used to determine this.

The defendant called her parents Earlene and Charles Nall as witnesses, each

of whom testified to having spoken with Nall the day of the burglary at the Palafox

office and that Nall had called them from her home at about 10:30 p.m. They also

testified that they were with Nall when the Hood Drive burglaries were discovered. 

Nall testified in her own behalf. She asserted that her landlord had given her three

keys rather than two to the Hood office and that when the locksmith removed the

lock from the door he tested the keys to see if they opened the lock.6 146 Fed.App.

462-466. 

The jury returned a verdict of guilty on May 28, 2004. (Doc. 60). Subsequently, 

both Attorney Gregory Smith, who represented defendant at trial, and Brian

5

There was contradictory testimony about this issue at trial from Nall, her parents and William

Tutchtone.

6

Defendant actually testified at some length at trial about matters including details concerning the

rental and contents of the storage shed and the reasons for using an assumed name, her insurance policy

cancellation, the civil lawsuit with Dr. Yates, numerous burglaries of her businesses and home and the fact

that after these burglaries, numerous items allegedly stolen from one location were discovered in another, and

entries in the detailed “organizer” that she maintained. (Doc. 116 at 232-292, and doc. 103 at 2-140).

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Shaughnessy, who began his representation of defendant shortly before her

sentencing in early July of 2004, filed motions for release pending sentencing. (Doc.

53 & 65). The government’s opposed continuing defendant’s pre-trial release despite

the non-violent nature of the offense. Its opposition was premised primarily upon

defendant’s creation of false evidence and her false testimony at trial, and it noted

that the commission of perjury was in violation of her initial conditions of release. 

(Doc. 55 & 72). The court summarily denied the motions. (Doc. 62 & 73). 

A Presentence Investigation Report (PSR) was prepared and provided to

defendant’s attorney for review. The PSR set defendant’s base offense level as 6. 

She was held responsible for an intended loss of $385.408.35, which warranted a

nine level adjustment (PSR ¶¶ 22, 321). Two additional two level adjustments were

applied because the offense involved more than minimal planning (PSR ¶ 32), and

due to defendant’s obstruction of justice through her false testimony at trial. (PSR

¶ 35).7 Her adjusted offense level was therefore 19. Defendant’s criminal history

category was I, and the applicable guidelines range was 30 to 37 months

imprisonment. Defendant objected to amount of loss attributed to her, challenged

the two guidelines adjustments under Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004) and requested a downward departure based on her

medical condition, her family situation, and her character. (Doc. 75, 104).

The court heard argument on all of defendant’s objections at sentencing, as

well as hearing testimony from four character witnesses. It overruled the objections

and determined that defendant’s medical condition, family situation and charitable

7

The PSR identified several instances of false testimony. First, Nall testified that she rented the

storage shed in East Brewton, Alabama on March 31, 2001, when actually she falsified the documents

pertaining the rental agreement after the alleged burglaries. She falsely testified that her two businesses had

been burglarized, although Escambia County Sheriff’s Office investigators concluded that these businesses

were not burglarized from the evidence gathered. Finally, she testified that an investigator with the Florida

Department of Services Fraud Division shot at her with a shotgun from a white SUV, and that the investigator

and others chased her through the state of Alabama and ran her off the road. She then drove to Washington,

D.C. and reported the incident to Attorney General John Ashcroft and met with FBI Agents who examined her

vehicle and confirmed it has been hit by a rubber bullet.

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good deeds were insufficient to warrant departure, but that even if they were, the

court would decline to depart given all of the factors presented at trial. (Doc. 104 at

57). It noted that if defendant did not do the things which she was charged with

doing, that “it would be the most strangest, bizarre set of circumstances that came

out at this trial that defies belief. If you want to say reasonable belief, it certainly

defies that. It almost defies any belief whatsoever.” (Id. at 77-78). The court

sentenced Nall to a term of 33 months imprisonment, and specifically stated after

imposing sentence that if the guidelines were later found to be unconstitutional, that

it would impose the same sentence. (Doc. 104 at 81-82).

Defendant appealed raising the following issues: (1) the trial court erred by

denying her motion for judgment of acquittal on Counts 7 and 8 because the

government failed to establish venue on those counts; (2) the court improperly

permitted the testimony of expert witness Pacheco because the government failed

to disclose the opinion prior to trial; (3) the court erred by failing to instruct the jury

on her alibi defense; and (4) her sentence must be vacated and remanded pursuant

to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 

Defendant’s convictions and sentences were affirmed by the Eleventh Circuit Court

of Appeals on September 29, 2005. United States v. Nall, 146 Fed.Appx. 462 (11th Cir.

2005) (doc. 153, exh. B).

In the present motion, defendant contends that trial counsel was

constitutionally ineffective due to his failure to conduct reasonable investigation,

failure to raise key points at trial that could have exonerated her, and failure to seek

a continuance or to re-open the case in chief. She also contends that the

prosecutor offered testimony that she knew or should have known was false and

allowed it to go uncorrected. The government opposes the motion in its entirety.

LEGAL ANALYSIS

Because collateral review is not a substitute for direct appeal, the grounds for

collateral attack on final judgments pursuant to § 2255 are extremely limited. A

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prisoner is entitled to relief under section 2255 if the court imposed a sentence that

(1) violated the Constitution or laws of the United States, (2) exceeded its

jurisdiction, (3) exceeded the maximum authorized by law or (4) is otherwise subject

to collateral attack. 28 U.S.C. § 2255; Thomas v. Crosby, 371 F.3d 782, 811 (11th Cir.

2004); United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v.

Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief 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.’” Lynn v. United States, 365 F.3d 1225,

1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice”

exception recognized in Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2678, 2649,

91 L. Ed. 2d 397 (1986), provides that it must be shown that the alleged constitutional

violation “has probably resulted in the conviction of one who is actually innocent.

. . .” 

Although section 2255 mandates that the court conduct an evidentiary hearing

“unless the motion and files and records conclusively show that the prisoner is

entitled to no relief,” a defendant must support his allegations with at least a proffer

of some credible supporting evidence. See Chandler v. McDonough, 471 F.3d 1360

(11th Cir. 2006) (citing Drew v. Dept. of Corrections, 297 F.3d 1278, 1293 (11th Cir.

2002) (referring to “our clear precedent establishing that such allegations are not

enough to warrant an evidentiary hearing in the absence of any specific factual

proffer or evidentiary support”); Hill v. Moore, 175 F.3d 915, 922 (11th Cir. 1999) (“To

be entitled to an evidentiary hearing on this matter [an ineffective assistance of

counsel claim], petitioner must proffer evidence that, if true, would entitle him to

relief.”); Ferguson v. United States, 699 F.2d 1071, 1072 (11th Cir. 1983). A hearing

is not required on frivolous claims, conclusory allegations unsupported by specifics,

or contentions that are wholly unsupported by the record. Peoples v. Campbell, 377

F.3d 1208, 1237 (11th Cir. 2004); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991);

Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (citations omitted). 

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Likewise, affidavits that amount to nothing more than conclusory allegations do not

warrant a hearing. Lynn, 365 F.3d at 1239.

Ineffective assistance of counsel claims are generally not cognizable on direct

appeal and are properly raised by a § 2255 motion regardless of whether they could

have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503, 123

S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003); see also United States v. Bender, 290 F.3d

1279, 1284 (11th Cir. 2002); United States v. Jiminez, 983 F.2d 1020, 1022, n. 1 (11th Cir.

1993). The benchmark for judging a claim of ineffective assistance of counsel is

“whether counsel's conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.”

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984). To show a violation of her constitutional right to counsel, defendant must

demonstrate both that counsel’s performance was below an objective and

reasonable professional norm and that he was prejudiced by this inadequacy. Id.,

466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d (1984); Williams v. Taylor, 529 U.S.

362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000); Gaskin v. Secretary, Dept. of

Corrections, 494 F.3d 997, 1002 (11th Cir. 2007). In applying Strickland, the court

may dispose of an ineffective assistance claim if defendant fails to carry her burden

on either of the two prongs. 466 U.S. at 697, 104 S.Ct. at 2069. 

In determining whether counsel’s conduct was deficient, this court must, with

much deference, consider “whether counsel’s assistance was reasonable

considering all the circumstances.” Id. at 688, 104 S.Ct. at 2065; see also Dingle v.

Secretary for Dept. of Corrections, 480 F.3d 1092, 1099 (11th Cir. 2007); Atkins v.

Singletary, 965 F.2d 952 (11th Cir. 1992). “[R]eviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonably

professional assistance.” Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990) (citing

Harich v. Dugger, 844 F.2d 1464, 1469 (11th Cir. 1988); Dingle v. Secretary for Dept.

of Corrections, 480 F.3d 1092, 1099 (11th Cir. 2007); Chandler v. United States, 218

F.3d 1305, 1314 (11th Cir. 2000); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir.

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1989) (emphasizing that petitioner was “not entitled to error-free representation”)). 

Counsel’s performance must be evaluated with a high degree of deference and

without the distorting effects of hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at

2065. 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.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008); United States

v. Freixas, 332 F.3d 1314, 1319-1320 (11th Cir. 2003); (quoting Brownlee v. Haley, 306

F.3d 1043, 1059 (11th Cir. 2002)(quoting Strickland, 466 U.S. at 687, 689-90, 104 S.Ct.

at 2064-66 and Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en

banc)). When examining the performance of an experienced trial counsel, the

presumption that counsel’s conduct was reasonable is even stronger, because

“[e]xperience is due some respect.” Chandler, 218 F.3d at 1316 n. 18.

With regard to the prejudice requirement, defendant must establish that, but

for counsel’s deficient performance, the outcome of the proceeding would have been

different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. For the court to focus merely

on “outcome determination,” however, is insufficient; “[t]o set aside a conviction or

sentence solely because the outcome would have been different but for counsel’s

error may grant the defendant a windfall to which the law does not entitle him.” 

Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). 

Defendant therefore must establish “that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart, 506

U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or in the case of alleged sentencing

errors, defendant must demonstrate that there is a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been less harsh due

to a reduction in the defendant’s offense level. Glover v. United States, 531 U.S. 198,

203-04, 121 S.Ct. 696, 700-01, 148 L.Ed.2d 604 (2001). A significant increase in

sentence is not required to establish prejudice, as “any amount of actual jail time

has Sixth Amendment significance.” Id.

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To establish ineffective assistance, defendant must provide factual support

for her contentions regarding counsel’s performance. Smith v. White, 815 F.2d 1401,

1406-07 (11th Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). 

Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the

Strickland test. Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992); Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Stano v. Dugger, 901 F.2d 898, 899 (11th

Cir. 1990) (citing Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629); United States v. Ross,

147 Fed.Appx. 936, 939 (11th Cir. 2005).

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 v. United States, 218 F.3d 1305, 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 whether some

reasonable lawyer could have acted in the circumstances as defense counsel acted. 

Dingle, 480 F.3d at 1099; Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). 

“Even if counsel's decision appears to have been unwise in retrospect, the decision

will be held to have been ineffective assistance only if it was ‘so patently

unreasonable that no competent attorney would have chosen it.’” Dingle, 480 F.3d

at 1099 (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)).

Ground One

In defendant’s first ground for relief she asserts that counsel failed to conduct

a “reasonable investigation,” made no showing of strategic reasons for not doing

so, and failed to introduce documentary evidence. Defendant’s claim appears to

relate to counsel’s failure to contact or obtain records from her former civil counsel

Danny Kepner.

With respect to counsel’s duty to investigate, no absolute duty exists to

investigate particular facts or a certain line of defense. Under Strickland, counsel's

conducting or not conducting an investigation need only be reasonable to fall within

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the wide range of competent assistance. Strickland, 104 S.Ct. at 2066 (stating that

counsel “has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary”) (cited in Chandler v.

United States, 218 F.3d 1305, 1317 (11th Cir. 2000)). Furthermore, counsel is not

required to “pursue every path until it bears fruit or until all hope withers.” Williams

v. Head, 185 F.3d 1223, 1236-37 (11th Cir. 1999).

[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, 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.

Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066; Gaskin v. Secretary, Dept. of

Corrections, 494 F.3d 997, 1002-1003 (11th Cir. 2007).

Interrelated with defendant’s claim that counsel failed to investigate is

defendant’s contention that counsel failed to call witnesses at trial. “Which

witnesses, if any, to call, and when to call them, is the epitome of a strategic

decision, and it is one that we will seldom, if ever, second guess.” Waters v. Thomas,

46 F.3d 1506, 1512 (11th Cir. 1995) (en banc ) (cited in Cuthbert v. United States, 296

Fed. Appx. 904 (11th Cir. 2008)); Chandler, 218 F.3d at 1314 n. 14 (describing the

decision to call some witnesses and not others as “the epitome of a strategic

decision” (quotation marks omitted)); United States v. Long, 674 F.2d 848, 855 (11th

Cir. 1982) (appellate court “will not second-guess tactical decisions of counsel in

deciding whether to call certain witnesses”). Furthermore, a defendant’s burden to

show prejudice is heavy where she petitioner alleges ineffective assistance in failing

to call a witness because “often allegations of what a witness would have testified

to are largely speculative.” Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006)

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(quoting United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)). Trial counsel

cannot be faulted for failing to call witnesses whose names are not disclosed by the

defendant. Marquard v. Secretary for Department of Corrections, 429 F.3d 1278, 1307

(11th Cir. 2005) 

Defendant first contends that counsel failed to interview and subpoena her

civil attorney, Danny Kepner. She claims that she told Attorney Smith of the

importance of Kepner as a defense witness, as well as the importance of unspecified

evidentiary items from his file. Defendant asserted that he had “documents and

other information that would have demonstrated that the tesimonies of FBI agent

Taylor, State Farm Investigator Keith Pearce, Insurance Investigator Tony Grice,

Faye Haverlock and Basil Yates were inaccurate or untruthful or that defendant was

being portrayed in a false light”. (Doc. 145, att. to no. 16 at 1).

The government asserts that defendant’s claim is merely conclusory due to

defendant’s failure to attach or even describe with more particularity the items in

question. In addition, despite defendant’s assertions to the contrary, defendant’s

trial attorney Gregory Smith states in his affidavit that he personally spoke to Mr.

Kepner, and that the information he obtained from him was either not helpful or

outright negative.8

 (Doc. 153, app. C at 5). He also specifically recalled Mr. Kepner

stating that the defendant “did not want him near that courtroom” (or words to that

effect) due to the harmful nature of his potential testimony. Id. Mr. Kepner

apparently had developed a negative opinion about Ms. Nall’s character and

conduct, as well as harbored a belief in her lack of veracity. Id.9

In rebuttal to defendant’s general assertions, counsel stated in his affidavit

that his client literally supplied him with hundreds of pages of documents that he

8

Counsel also indicates that he spoke to Attorney Maureen Duignan, from the same law firm, about

her potential testimony with respect to the defendant. As with Kepner, Ms. Duignan’s information was

characterized by counsel as either generally not helpful or negative. (Doc. 153, app.C at 5).

9

In spite of this, Attorney Smith notes that a subpoena was issued for Kepner, although some

subpoenas were issued to ensure that witnesses would be unable to be present in the courtroom to assist the

government in its case, even if there was no intent to call them to testify. (Doc. 153, exh. C at 4). 

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reviewed in preparation for her case. (Doc. 153, app. C at 12). He did not know any

documents or materials files from Mr. Kepner’s file to be among the items he

reviewed, and he was unaware of defendant’s belief in their significance until

reviewing the pending motion.

 Defendant states that the documents that should have been entered into

evidence at trial related to her alleged discovery of evidence of Medicare and

Medicaid fraud at several businesses run by Faye Haverlock. She states that after

this discovery, she and Ms. Haverlock entered into an auditing contract with the

agreement of the Office of the Inspector General and Blue Cross Blue Shield of

Miami. According to the terms of this agreement, if Haverlock broke the contract

or otherwise impeded defendant’s supervision of the plan of correction, the OIG

would reinstate the investigation into Haverlock’s business. Defendant claims that

she was instructed to retain the documents that demonstrated Haverlock’s

fraudulent activity, and that she had retained them in the storage unit in Brewton

Alabama. Defendant asserts that the prosecutor improperly attempted to discredit

her at trial by suggesting she had not reported the alleged fraud until after the

burglary. Had counsel subpoenaed and presented the documents, she asserts, her

testimony would have been more credible at trial. Her assertion that she retained

possession of documents potentially relevant to a criminal investigation seems

implausible, and if the documents were stored at her storage unit as she claims, the

need for a subpoena is not clear. Furthermore, her assertion that had the evidence

been presented an acquittal would have been likely is unconvincing. 

Defendant also claims that Craig Trigoboff, who was legal counsel for Dr.

Yates in the litigation between Yates and the defendant had threatened defendant

that he would put her out of business, ensure that she lost her nursing license and

was never allowed to operate a business in the State of Florida again. She claims

that these threats were documented, and that if Mr. Kepner had been subpoenaed,

counsel could have shown that Kepner “filed a formal complaint with the courts

against Trigoboff” prior to the burglary, providing another motive for the defendant’s

Case No: 3:04cr1/LAC;3:06cv245/LAC/MD
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business to be burglarized. If in fact such a complaint was filed, Attorney Kepner’s

records would not be the only place, or even the best place, for defendant to obtain

a copy of this complaint. Furthermore, even if the written records about Trigoboff’s

alleged conduct were not obtained, defendant could have testified to this effect at

trial. 

Defendant asserts that attorney Smith should have obtained documents

proving that she went to Washington D.C. to meet with FBI agents at the Department

of Justice in September 2001 and January of 2002, and that the failure to do so

undermined her credibility with the jury. Defendant states that she told counsel

about these meetings prior to trial, and provided him with the name of Agents and

their phone numbers, as well as bills from Attorney Kepner reflecting his time spent

talking to the agents. She asserts that the documents were in the court room during

trial but Smith refused to use them to support defendant’s claim to the meetings. 

The court does not concur that the records referred to by the defendant in Bulk

exhibit 1, tab 4 and 5 prove her assertions. Tab 4, for instance does not reflect

whether the 2002 complaint, which alleges “impersonation,” was made in person

or via other means,10 and if made in person, whether any individuals other than the

defendant were present as she now contends. And, the fact that attorney Kepner

may have made or received phone calls to or from Washington D.C. during the

month of September 2001 likewise does not prove defendant’s assertions.

Ground Two

Defendant contends that her trial counsel failed to raise key points at trial that

would have exonerated her and that she was deprived of critical evidence supporting

her “best defense.” The evidence to which defendant refers includes billing invoices

related to Dr. Yates and Faye Haverlock which she states would have proven that

10The document states that the complaint was received on January 29, 2002, but in the space

indicating “How received” it merely indicates “T,” with no explanation provided for this designation. 

Case No: 3:04cr1/LAC;3:06cv245/LAC/MD
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there were no “double billing” issues, thus discrediting the testimony of these two

witnesses. 

Defendant also claims that Kepner had documents that would have

discredited the testimony of Gail Cox Golden, who testified that defendant was a

con-artist, a dishonest person and in need of money at the time of the burglaries. 

Defendant also claims that it was Golden and not her who had filed for bankruptcy. 

The record does not support her assertion. The supplemental pleading filed and

signed by counsel Shaughnessy refers to Exhibit Binder 2, tab 24 as containing

proof of this claim. However, there are no documents contained within this portion

of the exhibit. Additional tabs to which reference is made, Exhibit 2, tab 9, 10 and

11 either do not exist or refer to matters unrelated to witness Golden. Finally, Keith

Pearce’s field notes in which he purportedly recorded that Golden had “no problem”

with Nall, in contrast to her court testimony, are not in the record. Thus, defendant’s

assertion about the existence of impeachment documents is conclusory and

unsupported. The fact that Golden’s rebuttal testimony during which she expressed

the opinion that the defendant was a liar and a “con-artist” was damaging does not

mean that it was improper. Even if bankruptcy and other records regarding Golden

existed and were available to counsel at the time of trial, such records would by no

means have “exonerated” the defendant as she claims. Discrediting an adverse

character witness is not synonomous with exoneration.

 Defendant also claims that Keith Pearce’s filed notes could have been used

to impeach the testimony of not only Pearce, but also FBI Agent Taylor, Tony Grice

and expert witness Pacheco. Defendant does not explain what specifically about

these notes, which are not in the record, would have impeached the testimony of the

four men. 

Defendant faults counsel for his failure to subpoena employment information

verification, college transcript and other documents that would have rebutted the

prosecution’s negative characterization of her and would have explained the

sequence of the events in this case. 

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She also claims counsel “refused” to introduce evidence that she requested

including school and college transcripts, proof of employment, billing invoices, bank

statements, phone records, police logs and travel records which could have

contradicted the testimony of the government’s witnesses. Defendant asserts that

bank statements would have shown her financial strength and solvency, which

would have undercut the prosecution theory that defendant’s motivation for the

charged crime was financial gain. Defendant testified at trial that she had over

$200,000 available to her at the time of the burglaries, in bank accounts and in cash

or traveler’s checks at a safe at her house. (Doc. 103 at 10). She claims that phone

records and harassing phone call logs would have shown the calls and threats she

had been receiving, although obviously phone records could not have shown the

content of any particular call. 

Defendant faults defense counsel for his performance with respect to defense

witness William Lee (Bill) Tutchtone. Tutchtone testified, contrary to what had been

testified to by government witnesses Pearce and Pacheco, that Pearce had placed

the key from Nall’s keyring in the lock at the scene of the Palafox burglary before

removing it from the scene. Defendant states that attorney Smith failed to

rehabilitate Tutchtone after the government “twisted” his testimony on cross

examination, and complains that counsel failed to use prior statements made by

Tutchtone to prove that he had just lied to the court. Defendant’s suggestion that

counsel should have impeached his own witness is a bit unorthodox. Defendant

states that at counsel’s request she secured Tutchtone’s testimony on

approximately 16 to 18 hours of video-tape, while the events were fresh in his mind. 

To the extent she claims that these tapes contained valid and valuable impeachment

material, her representations about the contents of the video are conclusory and

unsupported. 

Defendant next faults counsel for failing to conduct a handwriting analysis on

the two lease agreements at issue in the case to prove which one she had executed. 

Defendant claims that the prosecution intentionally did not secure a handwriting

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Page 18 of 25

analysis because had it done so, the analysis would have shown that one of the

government witnesses rather than defendant Nall actually executed the agreement. 

Defendant has failed to show either deficient performance on the part of attorney

Smith or prejudice. Despite her brazen assertion, defendant does not identify which

of the government witnesses she believes executed the agreement. She has not

submitted the results of a handwriting analysis in support of her claim, and her

prediction of the results of such an analysis are without any apparent foundation. 

The government notes that in light of the fact that defendant signed a false name,

that of her aunt, Dot Johnson, on the June 2001 lease, it would not be surprising if

the defendant attempted to disguise her handwriting on the lease. Finally, Stephanie

Evans, an employee from the East Brewton Mini Storage, identified defendant from

a photo array as the person who signed the June 2001 lease. (Doc. 116 at 63-65;

doc. 103 at 136). Defendant’s assertion that a handwriting analysis would have

shown that some other unidentified person signed the lease agreement that she

purportedly signed are conclusory and do not entitle her to relief. This is particularly

true in light of the testimony at trial supporting the government’s position that the

lease agreement purportedly reflecting that the storage unit was rented in March of

2001 was executed after the fact. 

Within her second ground for relief, defendant also faults counsel for his

failure to seek a continuance. The court’s order allowing defendant to secure her

third attorney in this case clearly states that the order of substitution was contingent

upon counsel’s ability to meet the trial court’s schedule in the case. (Doc. 34). Mr.

Smith asserts in his affidavit that defendant Nall accepted the limitation that the

court imposed as a condition for the substitution of counsel, and that his

representation to the court that the defense would be able to meet the court’s trial

schedule was made with her knowledge and consent. (Doc. 153, app. C at 8-9).

Defendant also suggests that Attorney Smith’s actions were somehow related

to the prosecutor’s “threats to charge Smith with obstruction of justice” if he

challenged the authenticity of the lease agreement, or to report him to the Florida

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Page 19 of 25

Bar for his role in assisting the defendant to defraud the government. In his affidavit

in response to the motion, counsel denies that he was personally threatened by

Assistant U.S. Attorney Dixie Morrow “in any way, shape, fashion, or form.” (Doc.

153, app. C at 13). He notes that the trial transcript reflects the opposite, that AUSA

Morrow did not hesitate to state on the record that she was not suggesting to either

Mr. Smith or the Court that he had done anything wrong with respect to the falsified

lease agreement. (Doc. 114 at 95). 

Defendant states that on cross examination, she was impeached with

transcripts of tapes that the government had obtained from State Farm. The

transcripts were from taped interviews of Nall, her parents and Bill Tutchtone at the

office immediately following the burglary. Defendant asserts that the transcripts

were inaccurate in that parts of the witnesses’ testimony was missing, and pages of

those transcripts were not on the tape at all but reflected statements that were never

made by her, her parents and Tutchtone. Defendant asserts that the prosecution

used the transcripts with the intent to impeach her, knowing the transcripts were

false. This is a very serious allegation of prosecutorial misconduct that the court

does not take lightly, but defendant has supplied nothing to support her allegation. 

AUSA Morrow has provided an affidavit in which she responds to the defendant’s

allegations. She denies Nall’s allegation that she was impeached using inaccurate

transcripts. AUSA Morrow notes that the only questioning specifically relating to a

transcript was a June 26, 2002 “Examination Under Oath,” which was Nall’s

deposition taken by Tallahassee attorney Sandy Burnette on behalf of State Farm as

part of processing Nall’s business loss claim. Morrow further notes:

My cross-examination of statements Defendant NALL made to State

Farm Insurance Co. Investigator Keith Pearce were based upon Mr.

Pearce’s testimony under oath during the Government’s case-in-chief. 

Mr. Pearce described what the defendant told him during meetings that

occurred on August 9, 14, 22, 24 and 31, 2001, and during the June 26,

2002 Examination Under Oath. Not every Pearce/NALL conversation

was recorded. Pursuant to Fed.R.Crim.P. 16, the defendant and her

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counsel were given transcripts of each recorded statement and accesss

to all recordings.

(Doc. 153, app. D at 2). Nall’s assertions are conclusory and apparently inaccurate. 

Defendant contends that she requested that Attorney Smith use Pearce’s field

notes to impeach his testimony, as they were contrary to his testimony at trial

regarding the lock manipulation, his collection of the lock, when and how it was sent

out, etc. She also claims that the field notes would have proven that the prosecutor

“lied to the court on the second day when she requested that the Lock Expert’s

Testimony be allowed to be changed contrary to his report ‘due to the fact that until

the Defense’s opening remarks it was not known that there was a lost key and/or the

need to prove which key was the last used in the lock.’” Defendant asserts that

Pearce had written in his notes that he had been told by the lock company that such

a test could not be done, although the expert testified to the contrary at trial. The

notes, therefore, could have impeached both Pearce and Pacheco, the lock expert. 

Defendant again asserts that the prosecutor intentionally lied to the court and helped

the lock expert and Pearce commit perjury. Again, AUSA Morrow vehemently denies 

defendant’s allegation that she knowingly presented false testimony or had any

reason to believe that any testimony she presented was false. (Doc. 153, app. D at

2). And finally, the mere fact that items were available as impeachment evidence

does not mean that they would have “exonerated” the defendant. 

In the final section of defendant’s memorandum with respect to ground two,

defendant asserts in a shotgun fashion that her attorney behaved extremely

unprofessionally in the court room, failed to argue effectively in opening and closing

remarks, failed to effectively cross examine witnesses, failed to request a

continuance, failed to challenge the prosecution’s use of false testimony, failed to

effectively re-direct defense witnesses, failed to investigate all possible leads and

review all evidence he was given pre-trial. Such broad conclusory assertions are

insufficient to state a claim of ineffective assistance of counsel. Furthermore,

although “fairness” is not the yardstick by which defendant’s allegations are

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measured, it seems somewhat unfair for defendant to now attempt to affix the label

of “ineffective” on counsel’s performance given that defendant knew of the short

time frame in which counsel was charged with familiarizing himself with facts of this

case, including reviewing the myriad of documents supplied to him by the defendant,

and of counsel’s previous limited federal criminal experience. Counsel responds in

his affidavit that defendant’s general assertions ignore that regardless of the caliber

of his performance, the defense was hampered by the fact that defendant “could

never satisfactorily explain the presence of items that had supposedly been stolen

from [one] business location, and which were subsequently found in a shed across

the state lines in Alabama, that had been rented by Ms. Nall under an assumed

name,” that is, supposedly stolen items remained in her possession and control,

albeit in a different location. (Doc. 153, exh. C). The defendant has not sustained her

burden of establishing that counsel’s performance was constitutionally ineffective. 

 

Ground Three

In her third ground for relief, defendant again complains about counsel’s

failure to attempt to continue the trial. As noted above, defendant’s ability to retain

Attorney Smith as substitute counsel was contingent upon his ability to meet the

trial schedule, and her allegation does not entitle her to relief. 

Defendant also contends that counsel should have secured evidence that

would have impeached Ray Houk, the owner of the Hood Drive property. Houk’s

testimony, given on May 25, 2004, was very brief. On direct, he was asked about

how many keys were in existence to the Hood Drive property, and how many he had

provided to the defendant. He denied having entered the building while it was rented

to the defendant or any tenant. On cross examination, however, he said was that he

went to the property on a Monday morning and left a note telling the defendant not

to enter the building before contacting him because the rent was past due. The last

thing he said was that defendant “moved out on the weekend in the dark hours of

Case No: 3:04cr1/LAC;3:06cv245/LAC/MD
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the night” and “took [his] burglar alarm system with her.” (Doc. 115 at 173). At that

point, counsel stated he had nothing further, and AUSA Morrow declined to redirect.

Defendant claims that she had evidence that would have impeached Houk, including

the copies of the contract for the alarm system, a copy of her written notice of intent

not to renew the lease and the final payment arrangements she made with Houk. If

in fact this evidence was readily available, as defendant suggested, it does not

appear that she provided it to counsel for her testimony on May 27 & 28. Counsel

cannot be faulted for a failure to cross-examine the defendant on documents he did

not have. 

Defendant next contends that counsel improperly permitted Agent Taylor to

sit in the courtroom all during the trial despite the invocation of the rule on

sequestration of witnesses. Agent Taylor was the government’s case agent, and as

such his presence at trial was permissible pursuant to Fed.R. Evid. 615. At trial,

while recognizing Rule 615, counsel objected to the government having two case

agents. (Doc. 114 at 98) . Ultimately, one of the agents left the courtroom and S/A

Taylor remained. (Doc. 114 at 108-109). A motion to exclude Taylor would have been

futile, and counsel was not ineffective for failing to so move. Freeman v. Attorney

General, Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)(Counsel is not ineffective for

failing to preserve or argue a meritless claim); see also Brownlee v. Haley, 306 F.3d

1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues

clearly lacking in merit); Chandler v. Moore, 240 F.3d 907 (11th Cir. 2001) (counsel not

ineffective for failing to object to “innocuous” statements by prosecutor, or accurate

statements by prosecutor about effect of potential sentence); Meeks v. Moore, 216

F.3d 951, 961 (11th Cir. 2000) (counsel not ineffective for failing to make meritless

motion for change of venue).

Ground Four

Defendant’s fourth ground for relief overlaps to a significant degree with some

of her claims/arguments above. She asserts that AUSA Morrow used testimony that

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Page 23 of 25

she knew or should have known was false and allowed it to go uncorrected during

the trial and sentencing. She further asserts that the prosecutor was duty-bound to

inform the appropriate authority if after-acquired or other information casts doubt

on the conviction. AUSA Morrow unequivocally denies having presented false

testimony in this case. She states in response to the allegations in defendant’s §

2255:

I did not and do not have any knowledge that testimony or evidence

presented by the government at the trial of this cause was false, and I

did not and do not have any reason to believe the testimony or

evidence presented by the government was false.

(Doc. 153, app. D at 2). 

To the extent the defendant contends that the prosecution “intentionally

destroyed her credibility,” it is part of an attorney’s role, where possible, to expose

weaknesses in a witness’ story and bring credibility issues to the attention of the

jury. The fact that the prosecutor was successful in doing this, without more,

certainly does not support a viable claim of misconduct. With respect to credibility

issues, on cross-examination, defendant herself claimed that at least four

government witnesses lied to the jury: B.J. Evans, Joana Robinson, Faye Haverlock,

and Keith Pearce. (Doc. 103 at 81, 82-83, 103,124, and 128). Ms. Nall was also

impeached about her use of the title “Dr.” on her business cards and personal

checks, although the doctorate degree she received was honorary. (Doc. 103 at 86-

90). She also stood firm in her assertion that some of the items allegedly stolen from

the burglary on Palafox were “returned” to the storage shed in Alabama, and others

were “returned” to her home, although some items had never been recovered.11

(Doc. 103 at 131). She claimed that the items were taken to the storage shed in order

to “frame” her. (Doc. 103 at 131-132). Finally, defendant asserted that she was shot

11Defendant had testified on direct that someone had advised her at the time of the Hood Drive

burglary to see if anything had been returned, as someone else had that happen to then. At first, that did not

appear to be the case, but once she began checking more closely, she found some items at Hood Drive, at

her home and in the storage unit. (Doc. 103 at 23-25, 27, 37-38).

Case No: 3:04cr1/LAC;3:06cv245/LAC/MD
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at while driving on I-10 in Pensacola towards the Alabama state line. (Doc. 103 at

136). Although she testified that she did not know who the individuals were, she

apparently assumed they were somehow related to this case.12 It was within the

providence of the jury to assess the credibility of defendant’s testimony, as well as

that of the other witnesses. 

As a final matter, the court states for the record that it has reviewed all of the

documents contained within defendant’s 3 volumes of attachments, even those to

which there was no reference within defendant’s pleadings. Many of the items would

not be admissible as they are summaries, or defendant’s own version of events, or

to which she could have testified at trial. Some items would tend not to be favorable

to the defendant. Other items relate to events that occurred after her trial and are

therefore irrelevant to her conviction and allegations of counsel’s allegedly deficient

performance. Most importantly, however, upon review of the entire record, this court

does not find that defendant has established that her attorney’s performance was

constitutionally deficient under the rigid standard set forth by Strickland and its

progeny.

Accordingly it is ORDERED:

Defendant’s motions for leave to file supplement opposition and bulk exhibit

(doc. 173 & 174) are GRANTED to the extent the court has reviewed the items in the

preparation of this recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside, or correct sentence (doc. 145) be DENIED.

At Pensacola, Florida, this 18th day of August, 2009.

12Defendant had previously identified the shooter as Department of Insurance Fraud Investigator,

Tony Grice 2255 Binder #2, at tab 16)

Case No: 3:04cr1/LAC;3:06cv245/LAC/MD
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 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy thereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No: 3:04cr1/LAC;3:06cv245/LAC/MD