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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 1:00cr15/MW/GRJ-1

1:13cv139/MW/GRJ

WILLIAM H. BLACK

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255. (doc. 1424.) The Government has filed

a response (doc. 1429, 1431) and Defendant has filed a reply. (doc. 1432.) After a

careful review of the record and the arguments presented, it is recommended that

Defendant’s § 2255 motion should be denied. 

PROCEDURAL BACKGROUND1

Defendant was charged in a three count indictment with conspiracy to commit

mail fraud, wire fraud, and obstruction of justice in violation of 18 U.S.C. § 371 (count

one), conspiracy to launder money in violation of 18 U.S.C. 1956(h) (count two) and

one count of forfeiture. (doc. 1.) On January 31, 2002 a jury found Defendant guilty of

count one of the indictment (doc. 769) and on May 7, 2002, the district court sentenced

him to 60 months’ imprisonment followed by 36 months of supervised release. The

Court also ordered the Defendant to pay $12,228,077 in restitution. (docs. 818, 827.)

Detailed statements of facts describing the offense conduct are set forth in the 1

Government’s brief on direct appeal and in the Eleventh Circuit’s opinion in United States

v. Swaine, 308 F. App’x 336 (11th Cir. 2009) and will be set forth herein only as necessary. 
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On August 5, 2004, Defendant pled guilty to count two of the indictment, and he

was sentenced to a term of 51 months and 21 days imprisonment, followed by a 36

month term of supervised release to run concurrently with the sentence imposed with

respect to count one. (docs. 1117–1122, 1133.) The court ordered Defendant to pay

any outstanding restitution obligation in monthly installments of at least $250.00 starting

no later than three months after his release from prison. (see doc. 1336; doc. 1419 at

3.)

On January 31, 2011 while Defendant was on supervised release, the probation

office petitioned the court to revoke his term of supervised release for failing to make

the required monthly restitution payments. (doc. 1336.) The district court held a hearing

on April 14, 2011, following which it took matters under advisement and informed the

parties that a written order would follow. (doc. 1356.) A final revocation hearing was

held on August 9, 2011. (doc. 1366.) At that hearing, the court found Defendant had

failed to make the required restitution payments, orally revoked Defendant’s term of

supervision and sentenced him to six months custody in the Bureau of Prisons (id.). In

its written judgment filed on August 25, 2011 the court stated that it “reserve[d]

jurisdiction to reconsider Defendant’s sentence within thirty days of the date of

imposition of sentence (August 9, 2011) if” Defendant provided the Government with an

accounting of his finances to the satisfaction of the court. (doc. 1367 at 2.) On

September 1, 2011 Defendant filed information about his assets. (doc. 1369.) The

motion was sealed and docketed as a motion for reconsideration. The court denied this

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motion, but granted Defendant leave to file another motion for reconsideration by

September 6, 2011. (doc. 1370.)

On September 6, 2011 Defendant again moved for reconsideration of the court’s

imposition of sentence and filed supporting financial information, this time through

counsel. (doc. 1371.) On September 7, 2011 the district court entered a written order

(1) granting Defendant’s motion; (2) vacating the judgment entered on August 9, 2011;

and (3) advising that the Court would enter an amended judgment which would provide

that: 

a. Defendant’s supervised release remains revoked

b. Defendant is sentenced to a period of time served, to be followed by 36

months of supervised release.

c. Defendant is subject to the same conditions of supervised release imposed in

the August 9, 2011 judgment (doc. 1367) and the May 10, 2002 judgment (doc.

827). He shall make restitution payments in an amount not less than $250.00

each month or be subject to violation of the conditions of his release.

(Doc. 1372 at 1–2.) No amended judgment was entered, and Defendant did not

appeal.

Even though the Defendant had avoided incarceration for more than a year, he

went forward and filed a motion on October 15, 2012, requesting the Court to terminate

his supervised release arguing that the Court did not have jurisdiction over him

pursuant to Rule 35 of the Federal Rules of Criminal Procedure. (doc. 1388.) 

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According to Defendant, he was being illegally subjected to supervised release. 

Defendant’s argument, as later summarized by the Eleventh Circuit, was as follows:

Rule 35(a) imposes a fourteen-day limit on a district court’s authority to

modify or amend a sentence. Once the District Court vacated his

sentence on September 7, 2011, it had fourteen days to impose a new

sentence. Because the court had not entered a sentence within that

period, it no longer had jurisdiction to impose a sentence. Therefore, after

the fourteen-day period, the September 7, 2011 order vacating Black’s

August 9, 2011, sentence converted into a final order, rendering Black’s

continued supervised release under the August 9, 2011, sentence illegal.

(Doc. 1419 at 5.)

The court denied the motion on October 23, 2012 noting that while it was true

through oversight, the amended judgment had not been entered, “[i]f anything,

Defendant’s jurisdictional argument means that the Court was without jurisdiction to

vacate the sentence on September 7, 2011 because more than 14 days had passed

since the oral announcement of sentence on August 9, 2011.” (doc. 1389 at 3.) The

court observed that such an outcome would mean that Defendant’s August 9, 2011

sentence would be reinstated, along with the six month prison term that had been

imposed (id.). The court denied the motion without reinstating the August 9, 2011

sentence, and on October 24, the court entered an amended judgment. (docs.

1390–91.) Undeterred the Defendant appealed the court’s order denying his request

for early termination of his supervised release. (doc. 1392.) 

On appeal, Defendant again argued that the district court lacked jurisdiction to

enter an amended judgment more than fourteen days after issuing its September 7,

2011 order. (doc. 1419 at 6.) The Eleventh Circuit found that pursuant to Rule 35(a),

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the district court lost jurisdiction to modify the August 9, 2011 sentence it had orally

imposed after the expiration of fourteen days, or on August 23, 2011. Therefore, to the

extent the district court’s order on September 7, 2011 was premised on that rule, it was

void ab initio because it was entered after Rule 35(a)’s fourteen-day period had

elapsed. Thus, the Eleventh Circuit concluded that the August 9, 2011 judgment was

not vacated by the September 7, 2011 order (id.). 

The Eleventh Circuit then went one step further and concluded that the district

court did not have the authority to enter the amended judgment entered on October 24,

2012 under any of the three circumstances enumerated in 18 U.S.C. § 3582(c). 

Consequently, the Eleventh Circuit concluded that this judgment also was a nullity, and

on July 1, 2013, the Eleventh Circuit ruled that the sentence imposed on August 9,

2011 should be reinstated. The case was remanded to this Court. 2

After the Eleventh Circuit entered its opinion (but before the mandate was

issued) Defendant filed a letter motion with the district court dated July 8, 2013 which

the clerk docketed as a “motion to modify sentence.” (doc. 1420.) The court held a

telephonic hearing and denied Defendant’s letter motion. (doc. 1423.) Defendant filed

the § 2255 motion to vacate on July 24, 2013, about a week later. Defendant raises

three grounds for relief. First, he contends that the August 9, 2011 sentence should be

vacated based on “manifest injustice.” Next, he asserts that counsel was

constitutionally ineffective for failing to “advise” the court that Rule 35(a) conflicted with

The court stated: “Had the [district] court wanted to adjust Black’s punishment 2

based on whether he presented adequate financial disclosures to the court, it should not

have imposed a sentence before receiving Black’s submissions” (doc. 1419 at 7).

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the court’s intent, and it should have waited thirty days to enter the judgment imposing

the sentence. Finally, he asserts that equitable estoppel applies to the facts of his case.

After Defendant’s § 2255 motion to vacate was filed the Eleventh Circuit issued

its mandate on August 1, 2013. (doc. 1426.) On August 6, 2013, pursuant to the

mandate of the Eleventh Circuit the district court entered an order reinstating the

original judgment and setting the date for Defendant’s voluntary surrender as

September 6, 2013. (doc. 1427.) Since the judgment was reinstated Defendant has not

filed any motion or request in the criminal case challenging the judgment, other than the

previously filed and currently pending 2255 motion. 

The Government filed its expedited response in opposition to Defendant’s motion

on August 13, 2013 (doc. 1429), and as directed by the Court, the Government filed a

supplemental response. (doc. 1431.) The Defendant has replied. (doc. 1432.)

LEGAL ANALYSIS

General Standard of Review

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

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. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n. 8

(11th Cir. 2011). “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

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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). A non-constitutional error that may justify reversal on direct appeal does not

generally support a collateral attack on a final judgment, unless the error (1) could not

have been raised on direct appeal and (2) would, if condoned, result in a complete

miscarriage of justice. Id. at 1232–33 (citing United States v. Frady, 456 U.S. 152, 165

(1982); Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976)). The “fundamental

miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496

(1986), provides that it must be shown that the alleged constitutional violation “has

probably resulted in the conviction of one who is actually innocent . . . .” see also Davis

v. United States, 417 U.S. 333, 346–47 (1974). 

The law is well established that a district court need not reconsider issues raised

in a section 2255 motion which have been resolved on direct appeal. Rozier v. United

States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340,

1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994);

United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). Once a matter has

been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a

collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). 

Broad discretion is afforded to a court’s determination of whether a particular claim has

been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) (“identical

grounds may often be proved by different factual allegations . . . or supported by

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different legal arguments . . . or couched in different language . . . or vary in immaterial

respects”). 

Furthermore, a motion to vacate under section 2255 is not a substitute for direct

appeal, and issues which could have been raised on direct appeal are generally not

actionable in a section 2255 motion and will be considered procedurally barred. Lynn,

365 F.3d at 1234–35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v.

United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “‘available’ on direct

appeal when its merits can be reviewed without further factual development.” Lynn,

365 F.3d at 1232 n. 14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the

ground of error was unavailable on direct appeal, a court may not consider the ground

in a section 2255 motion unless the defendant establishes (1) cause for not raising the

ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that

is, alternatively, that he is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523

U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must

show that “some objective factor external to the defense prevented [him] or his counsel

from raising his claims on direct appeal and that this factor cannot be fairly attributable

to [defendant’s] own conduct.” Lynn, 365 F.3d at 1235. A meritorious claim of

ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

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

(2003); see also United States v. Patterson, 595 F.3d, 1324, 1328 (11th Cir. 2010). 

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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 (1984). To show a violation of his constitutional right to

counsel, a 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. at 686; Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden

v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, the

court may dispose of an ineffective assistance claim if a defendant fails to carry his

burden on either of the two prongs. 466 U.S. at 697; Brown v. United States, 720 F.3d

1316, 1326 (11th Cir. 2013).

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.” Strickland, 466 U.S. at 688; see also Dingle v. Secretary for

Dept. of Corrections, 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to

review counsel’s performance in a highly deferential manner and “must indulge a strong

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

professional assistance.” Hammond v. Hall, 585 F.3d 1289, 1324 (11th Cir. 2009)

(quoting Strickland, 466 U.S. at 689); Chandler v. United States, 218 F.3d 1305, 1314

(11th Cir. 2000); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989)

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

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With regard to the second prong of the test, 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. 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 (1993); Allen v. Secretary, Florida

Dep’t of Corrections, 611 F.3d 740, 754 (11th Cir. 2010). A 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, a 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 (2001). A

significant increase in sentence is not required to establish prejudice, as “any amount of

actual jail time has Sixth Amendment significance.” Id. at 203.

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. 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,

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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)). 

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, 1363 (11th

Cir. 2006) (citations omitted); 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). Likewise, affidavits that

amount to nothing more than conclusory allegations do not warrant a hearing. Lynn,

365 F.3d at 1239.

Timeliness

The Government argues that Defendant’s motion is untimely because it was filed

more than one year after the sentence in question was imposed. (doc. 1431 at 4–7.)

While that is true, the Government’s argument ignores the fact that the term of

imprisonment imposed by the August 9, 2011 oral ruling was vacated by the district

court’s order of September 7, 2011. Thus, there was no reason for Defendant to

challenge a sentence that he reasonably believed had been vacated until after it was

reinstated by the district court on August 6, 2013 in response to the Eleventh Circuit’s

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mandate. Accordingly, the instant motion is not time barred, and if anything, was

premature because it was filed before the district court entered its order of August 6,

2013 reinstating the sentence of imprisonment Defendant now seeks to challenge.

(doc. 1427.)

Ground One: Manifest Injustice

As his first ground for relief, Defendant alleges that his sentence of August 9,

2011 should be vacated to prevent manifest injustice. The Government argues in

response to this claim that Defendant “may not relitigate what has already been

decided adversely against him on direct appeal.” (doc. 1429 at 17.) The Government is

correct that Defendant’s six month term of imprisonment was reinstated by the Eleventh

Circuit. However, there is nothing in the record to suggest that Defendant litigated the

issue of “manifest injustice” on appeal. There would have been no reason to do so. It 

was not until the Eleventh Circuit rendered its July 1, 2013 opinion that Defendant was

on notice, for the first time since the district court’s order of September 7, 2011, that his

six month term of imprisonment would be reinstated (doc. 1372), and it was not until

August 6, 2013, after the instant § 2255 motion was filed, that the district court

reinstated the judgment. (doc. 1427.) Thus, to the extent Defendant sought to

challenge an order that had not yet been entered his § 2255 motion was premature. 

Even if it was not premature, his claim is without merit.

Defendant’s argument is that to require him to serve the six month term of

imprisonment after he provided the required information would result in manifest

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injustice. While the term “manifest injustice” is a term of art widely used in reported

cases, manifest injustice is not synonymous with unfair. 

In the context of direct criminal appeals, and not habeas relief, the Eleventh

Circuit has equated the manifest injustice inquiry with plain error review. United States

v. Quintana, 300 F.3d 1227 (11th Cir. 2002) (citing United States v. McClendon, 195

F.3d 598, 603 (11th Cir. 1999); United States v. Martinez, 83 F.3d 371 (11th Cir. 1996)

(citing United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993)); United States

v. Neely, 979 F.2d 1522, 1523 (11th Cir. 1992) (We will only consider [sentence]

objections raised for the first time on appeal under the plain error doctrine to avoid

‘manifest injustice.’”). In Quintana, the defendant on direct appeal challenged the

district court’s failure to allow him to allocute before imposition of sentence. The

Eleventh Circuit stated that because defendant had failed to object at the time, in order

to demonstrate manifest injustice he had to demonstrate: “(1) that there was error; (2)

that was plain; (3) that affected his substantial rights; and (4) that affected the

fundamental fairness of the proceedings.” Quintana, 300 F.3d at 1232 (citing Johnson

v. United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). The

court found that he had failed to demonstrate any effect on his rights as a result of his

failure to allocute because he had been sentenced at the lowest end of the applicable

guidelines range. At least three other cases have considered similarly postured

manifest injustice claims. See United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.

2000)(on direct appeal, finding “no prejudice or ‘manifest injustice’” for court’s failure to

allow allocution when defendant received sentence at low end of guidelines range);

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United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir. 1998)(same);

United States v. Tamayo, 80 F.3d 1514, 1521 (11th Cir. 1996)(same). 

Here, the grounds of manifest injustice have been presented on collateral review

and not on direct appeal. Relying upon that term, the Defendant suggest that it would

be “manifest injustice” for Defendant to be required to serve a term of imprisonment at

this juncture. While Defendant’s argument that the situation he finds himself in is 3

unfair may have superficial appeal the argument has been presented in a § 2255

motion to vacate – a civil collateral proceeding -- and not by motion or request for relief

in the criminal case. There is an important difference between challenging the Court’s

action on the merits and bringing a collateral challenge in a habeas motion, which

requires a higher threshold to be entitled to relief. While the Supreme Court has said

that the interest in finality “must yield to the imperative of correcting a fundamentally

unjust incarceration,” See Murray v. Carrier, 477 U.S. 478, 495 (1986) (citation omitted),

habeas may be used to prevent the unjust incarceration where there is a claim of actual

innocence and not merely a claim of unfairness. See also Scott v. United States, 740

F. Supp.2d 1317 (S.D. Fla. 2010) (where a prisoner is procedurally barred from bringing

a habeas claim, the Supreme Court has consistently concluded that the interests of

The court recognizes the irony of the fact that absent Defendant’s appeal of the 3

district court’s order denying his motion for early termination of probation (doc. 1389), this

issue would have never arisen. In its order, the court expressly noted that “[i]f anything,

Defendant’s jurisdictional argument means that the court was without jurisdiction to vacate

the sentence on September 7, 2011 because more than 14 days had passed since the oral

announcement of sentence on August 9, 201. This would mean that Defendant’s August

9, 2011 sentence would be reinstated” (doc. 289 at 3). The court’s order foreshadowed 

precisely what happened on appeal.

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finality and conservation of judicial resources must yield when the prisoner makes an

adequate showing of actual innocence. citing Murray, 477 U.S. at 495–96, 106 S.Ct.

2639; Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986); Coleman v. Thompson, 501 U.S.

722, 750 (1991)). 

In this case, there is no claim or argument that Defendant is actually innocent of

violating supervised release. Rather, the argument is simply that the sentence for

violating supervised release is unfair. While that may be so – and while the Defendant

could have presented these arguments to the Court in the criminal case after the

judgment was reinstated, on August 6, 2013, he has chosen not to do so and instead

has bypassed this step and gone directly to seeking relief on collateral review. To

demonstrate manifest injustice on collateral review the Defendant must satisfy the high

burden of establishing that relief should be granted because he is actually innocent.

Accordingly, because Defendant has not raised this issue directly in his criminal case or

on direct appeal from a challenge in his criminal case, and cannot demonstrate actual

innocence, Defendant’s argument that he is entitled to habeas relief based upon

manifest injustice must fail. 

Ground Two: Ineffective assistance of counsel

Defendant next alleges that counsel was constitutionally ineffective. While

ineffective assistance of counsel is a proper ground to be brought in a § 2255 motion,

Defendant’s argument fails because he has not shown deficient performance by

counsel. Rather, the result achieved by his counsel during counsel’s representation in

the violation of supervised release proceedings, was admirable because counsel

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actually avoided the Defendant from being incarcerated even though he had violated

supervised release. Indeed, Defendant to this day would still be free of the imposition of

the six month prison sentence had he not filed a pro se appeal to the Eleventh Circuit in

his effort to avoid, altogether, the conditions of supervised release. 

According to Defendant, his counsel was deficient because counsel “should have

known that a federal judge only has fourteen days to modify or change a sentence

based on the law (rule 35(a)).” (doc. 1424 at 15.) Defendant reasons that when the

court stated in open court that it was reserving jurisdiction over the case for thirty days,

counsel should have brought this matter to the court’s attention, petitioning it to wait the

thirty days and sentence Defendant after that time if he did not comply with the court’s

directive. (id.) While that would have been a better result – and apparently a mistake

was made by defense counsel, counsel for the Government and the Court – simply

because a mistake is made does not automatically equate to constitutionally deficient

performance. Indeed, if that was the law virtually every criminal judgment would be

vacated on collateral review because there are probably very few, if any, criminal cases

where at least one mistake has not been made. 

In determining whether counsel’s performance was constitutionally deficient the

court does not compare counsel’s performance to what the best lawyers would have

done or even what most good lawyers would have done, but rather asks whether some

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

Dingle, 480 F.3d at 1099; Williamson, 221 F.3d at 1180. “Even if counsel’s decision

appears to have been unwise in retrospect, the decision will be held to have been

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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)). 

Under this stringent standard, it cannot be said that defense counsel was

constitutionally deficient when he failed to bring up an issue that neither the

Government nor the court itself noticed. Thus, while in hindsight it would have been

preferable had the issue been raised, the Court cannot conclude that no competent

lawyer would have done the same thing defense counsel did, particularly where neither

the Court nor the Government noticed any problem in amending the judgment after 14

days. 

Ground Three: Equitable Estoppel

In his third ground for relief, Defendant contends that the doctrine of equitable

estoppel applies to his case. The Government again argues that Defendant may not

relitigate a claim that already has been decided adversely against him on direct appeal

under the guise of a § 2255 motion. First, it does not appear that an equitable estoppel

claim was raised on appeal. More significantly, Defendant’s common law claim of

equitable estoppel is simply not applicable in a habeas proceeding and, therefore, the

Defendant is not entitled to relief on this basis. 

Certificate of Appealability

Section 2255 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

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showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. § 2255 11(b).

After review of the record, the court finds no substantial showing of the denial of

a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000)

(explaining how to satisfy this showing) (citation omitted). Therefore, it is also

recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” If there is an objection to this recommendation by either party, that party may

bring this argument to the attention of the district judge in the objections permitted to

this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

1. The motion to vacate, set aside, or correct sentence (doc. 1424) should be

DENIED. 

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 30th day of August, 2013.

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case Nos.: 1:00cr15/MW/GRJ; 1:13cv139/MW/GRJ
Page 19 of 19

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen 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 Nos.: 1:00cr15/MW/GRJ; 1:13cv139/MW/GRJ