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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. 3:03CR150/RV

3:06CV226/RV/MD

BRADFORD SAMUEL POTTS

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s second amended motion to vacate,

set aside, or correct sentence pursuant to 28 U.S.C. §2255 (doc. 126). The government

has filed a response (doc. 133) and the defendant has filed a reply (doc. 144). 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.

I. BACKGROUND

Defendant Bradford Potts along with Shelton Perdue and Marline D. Purifoy were

charged in a single count indictment with conspiracy to possess with intent to distribute five

kilograms or more of a mixture and substance containing a detectible amount of cocaine

in violation of 21 U.S.C. § 841(a)(1) and fifty grams or more of a mixture and substance

containing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(ii) and (iii). (Doc. 13). The

government filed a notice of enhancement indicating its intent to seek increased penalties

against defendant Potts due to his two prior controlled substance offenses. (Doc. 27). CoCase 3:03-cr-00150-RV Document 150 Filed 04/27/07 Page 1 of 17
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defendant Marlin Purifoy entered into a plea and cooperation agreement (doc. 46) and the

remaining two defendants proceeded to trial. Potts was represented by appointed counsel

George F. Murphy. Both defendants were found guilty as charged, and were found to be

accountable for both five kilograms or more of cocaine powder and 50 grams or more of

cocaine base. (Doc. 56 & 57). 

Using the marijuana equivalency, the PSR attributed 1,762.77 kilograms of

marijuana to the defendant, for a base offense level of 32. However, his total offense level

was 37 pursuant to § 4B1.1 of the Sentencing Guidelines due to his career offender status.

He had a criminal history category of VI. Defendant was sentenced to a term of 360

months imprisonment, which was the low end of the applicable guidelines range, because

the two offenses which subjected him to career offender status were relatively minor

offenses. (Doc. 86 at 19). 

Potts and Perdue appealed, arguing that there was insufficient evidence to convict

them of conspiracy, that the district court erred by allowing testimony about drug

transactions that occurred before the alleged conspiracy, and that the district court

committed error under Blakely/Booker at sentencing. Their convictions and sentences

were upheld. (Doc. 118).

In the present motion, defendant contends that there was insufficient evidence to

prove the existence of a conspiracy or his participation therein, that the government

improperly introduced evidence of uncharged conduct, that counsel’s performance was

constitutionally ineffective because he failed to object to the quantity of drugs attributed to

the defendant, failed to raise certain issues on appeal, and deprived defendant of his right

to testify in his own behalf. The government opposes the motion in its entirety.

II. LEGAL ANALYSIS

A. General Legal Standards

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

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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; 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). “[A] non-constitutional error that may justify reversal on direct appeal

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

not have been raised on direct appeal and (2) would, if condoned, result in a complete

miscarriage of justice.” Lynn, 365 F.3d at 1232-33 (citations omitted); Hill v. United States,

368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (error of law does not provide basis

for collateral attack unless claimed error constituted a “fundamental defect which inherently

results in a complete miscarriage of justice.”). 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. 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).

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

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

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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).

To show a violation of his 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. Strickland v. Washington, 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). “Strickland’s two-part test also applies where a

prisoner contends ineffective assistance led him or her to enter an improvident guilty plea.”

Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990) (citing Hill v. Lockhart, 474 U.S. 52,

106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). In applying Strickland, the court may dispose of

an ineffective assistance claim if defendant fails to carry his 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 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); 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”)). 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.” United State 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

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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 evenstronger, 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.

To establish ineffective assistance, defendant must provide factual support for his

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

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. . . 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. Williamson v. Moore, 221 F.3d

1177, 1180 (11th Cir. 2000), cert. denied, 122 S.Ct. 234 (2001). 

B. Defendant’s Specific Claims

1. Insufficient Evidence of Conspiracy

Defendant first claims that there was insufficient evidence of a conspiracy. He

repeatedly avers that there was insufficient evidence to prove that an agreement existed

among the conspirators and that his mere association with co-defendant Perdue was not

tantamount to proof of illegal activity. 

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. United States v.

Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056

(11th Cir. 1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1966, 131 L.Ed.2d 856 (1995);

United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981); Hidalgo v. United States,

138 Fed.Appx. 290 (11th Cir. 2005). 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, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (“identical

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

legal arguments . . . or couched in different language . . . or vary in immaterial respects”).

The sufficiency of the evidence was challenged on direct appeal by both defendants Potts

and Perdue, and the appellate court found the evidence against the defendants was

sufficient to uphold their convictions (Doc. 118 at 2).

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1

 The indictment charged that the conspiracy occurred between June 1, 2003 and the date of

the indictment, which was December 16, 2003. 

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2. Variance to the Indictment

Defendant next contends that the government presented evidence of “uncharged

offenses” at trial, thus resulting in a fatal variance to the indictment. The evidence in

question concerned testimony about a controlled buy that took place and a search warrant

that was executed at defendant’s home in Copperas Cove, Texas in August of 2003.1

Officers Earl Edward Wilson of the Copperas Cove Police Department, and Jose G.

Ramos of the Texas Department of Public Safety, testified about these events. (Doc.84

at 235-270). Defendant claims that he was prejudiced because counsel failed to inform

him that these two officers would be testifying, and that had he known that the evidence

complained of was going to be presented to the jury, he would have testified to his version

of events, that is that the Texas case was dismissed. 

“The standard of review for an allegation of variance between the indictment and

the proof adduced at trial requires two steps: ‘First, we must determine whether a material

variance did indeed occur; and, second, whether [the appellant] suffered substantial

prejudice as a result of the variance.’” United States v. Starrett, 55 F.3d 1525, 1552-53

(11th Cir. 1995) (citing United States v. Prince, 883 F.2d 953, 959 (11th Cir. 1989); see also

United States v. Reed, 980 F.2d 1568, 1581 (11th Cir.), cert. denied, 509 U.S. 932, 113

S.Ct. 3063, 125 L.Ed.2d 745 (1993); United States v. Church, 955 F.2d 688, 697 (11th Cir,.

1992)). A failure of proof on either prong is sufficient to defeat defendant’s claim. Starrett,

55 F.3d at 1553. To establish prejudice, the second prong, the defendant must show

either (1) that “the proof at trial differ[s] so greatly from the charges in the indictment that

the defendant was unfairly surprised and had an inadequate opportunity to prepare a

defense,” or (2) that due to the number of defendants in the case, and the number of

predicate acts charged, there is a substantial likelihood that the jury transferred evidence

from one defendant to another.” Id. (quoting United States v. Caporale, 806 F.2d 1487,

1500 (11th Cir. 1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987)).

Any variance in this case between the indictment and the proof at trial is not so great as

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to support a claim of unfair surprise, as prior to trial the government provided notice to the

defendant of its intent to introduce the defendant’s drug trafficking activities in Texas.

(Doc. 49 at 2 (government’s trial brief)). 

Although defendant does not specifically articulate such a challenge, it also appears

that the evidence was properly admitted under Rule 404(b). Co-defendant Perdue raised

a claim regarding improper admission of evidence on appeal. In considering this claim the

Eleventh Circuit stated:

Evidence of uncharged criminal activities generally would be considered

inadmissible extrinsic evidence under Rule 404(b). United States v. Jiminez,

224 F.3d 1243, 1249 (11th Cir. 2000). Such evidence, however, is admissible

as intrinsic evidence of the charged offense if it is “(1) an uncharged offense

which arose out of the same transaction or series of transactions as the

charged offense, (2) necessary to complete the story of the crime, or (3)

inextricably intertwined with the evidence regarding the charged offense.”

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (citation

omitted). “Evidence, not part of the crime charged but pertaining to the chain

of events explaining the context, motive and set-up of the crime, is properly

admitted if linked in time and circumstances with the charged crime, or forms

an integral and natural part of an account of the crime, or is necessary to

complete the story of the crime for the jury. Id. (internal quotations and

citation omitted).

Although defendant contends that the Texas charges in question were dismissed, the

search occurred during the time frame of the conspiracy and involved the same controlled

substance as that involved in the charged conspiracy. The government noted before trial

that although defendant Potts was not a “big time” dealer, but more of a “want to be,” the

evidence about the activities in Texas showed that he was trying to sell drugs and develop

a market. (Doc. 83 at 13-14). It would also tend to show that the expected defense, that

Potts was surprised to learn that Perdue was involved in selling drugs while the men were

in Pensacola was not credible. (Doc. 83 at 14). The government further explained that its

theory of the case was that the cocaine and crack cocaine involved in the conspiracy was

flowing from Texas to Pensacola. (Doc. 83 at 14-15). The court stated that there was no

basis for a 404(b) objection to the evidence (doc. 83 at 16), but left the door open for

counsel to make appropriate objections, if any, at a later time. Thus, there is no basis for

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defendant’s claim that the evidence was improperly admitted, or that counsel’s

performance was constitutionally ineffective due to his failure to object to the admission of

this evidence.

Finally, defendant’s claim that “had he known” the Texas law enforcement officers

would testify, he would have testified, is not credible. At the time he made his decision

whether to testify, see infra, evidence about the events in Texas had already been

presented during the government’s case in chief. 

3. Counsel Deprived Defendant of his Right to Testify

Although not raising a specific and separate ground for relief, defendant alludes in

his motion to discussions he had with counsel about whether he should testify. He states

that counsel advised him not to take the stand because “the government will bring in the

arrest that occurred in Texas even though the case is pending” and that defendant had “a

better chance of winning the case because there is no evidence against you, so my advice

is, that the jury won’t hear about what took place in Texas.” The basis for defendant’s

argument is unclear, as by the time he had to make his decision whether to testify, the

government’s case in chief had already been presented, and the evidence about “what

took place in Texas” had been heard by the jury. 

It is axiomatic that a criminal defendant has the right to testify in his or her own

defense. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987);

McGriff v. Dept. of Corrections, 338 F.3d 1231, 1237 (11th Cir. 2003); Gallego v. United

States, 174 F.3d 1196, 1197 (11th Cir. 1999); United States v. Teague, 953 F.2d 1525,

1534 (11th Cir. 1992). This right is fundamental and personal to the defendant, such that

it may not be effectively waived by counsel against the defendant’s will. Gallego, 174 F.3d

at 1197; Teague, 953 F.2d at 1532; Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998);

cf. United States v. Brown, 217 F.3d 247, 258-59 (5th Cir. 2000) (finding that a strong-willed

defendant who changed his mind about testifying likely did so as a result of persuasion

rather than coercion); Emery v. Johnson, 139 F.3d 191, 199 (5th Cir.1997) (same). When

“[u]naccompanied by coercion, legal advice concerning exercise of the right to testify

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2

 “[I]n exceptional, narrowly defined circumstances, judicial interjection through a direct

colloquy with the defendant may be required to ensure that the defendant's right to testify is

protected.” United States v. Pennycooke, 65 F.3d 9, 12 (3rd Cir. 1995). The Pennycooke court's

illustration of an “exceptional circumstance” was a defendant who repeatedly interrupted the trial to

express his desire to testify and interjected that his attorney was lying when his attorney told the

court that the attorney and the defendant had made a joint decision that the defendant would not

testify. Id. at 12 (citing Ortega v. O'Leary, 843 F.2d 258 (7th Cir.1988)). 

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infringes no right ... but simply discharges defense counsel's ethical responsibility to the

accused.” Lema v. United States, 987 F.2d 48, 52 (1st Cir. 1993). An overwhelming

majority of the circuits have held that a district court generally has no duty to explain to the

defendant that he or she has a right to testify or to verify that the defendant who is not

testifying has waived the right voluntarily. See United States v. Van de Walker, 141 F.3d

1451 (11th Cir. 1998); United States v. Leggett, 162 F.3d 237, 246 (3rd Cir. 1998)(citing

cases from nine courts of appeals); United States v. Richardson, 195 F.3d 192, 197-198

(4th Cir. 1999). Some courts have held that a waiver may be inferred from the defendant’s

conduct if she or he does not alert the trial court of a disagreement with counsel as to

whether he should testify.2 Gonzalez v. Elo, 233 F.3d 348, 357 (6th Cir. 2000); United

States v. Webber, 208 F.3d 545, 552 (6th Cir. 2000); United States v. Joelson, 7 F.3d 174,

177 (9th Cir. 1993); United States v. Edwards, 897 F.2d 445, 447 (9th Cir.), cert. denied, 498

U.S. 1000, 111 S.Ct. 560, 112 L.Ed.2d 567 (1990); United States v. Kamerud, 326 F.3d

1008, 1017 (8th Cir. 2003) (“if an accused desires to exercise [his] constitutional right to

testify the accused must act affirmatively and express to the court [his] desire to do so at

the appropriate time or a knowing and voluntary waiver of the right is deemed to have

occurred.”) (citation omitted).

The appropriate vehicle for a claim that the defendant's right to testify was violated

by defense counsel is a claim of ineffective assistance of counsel under Strickland.

Gallego v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999); Teague, 953 F.2d at 1534;

United States v. Brown, 217 F.3d 247, 258-59 (5th Cir. 2000). In this case, however, to the

extent that the defendant’s motion can be read to claim a violation of his right to testify, the

record does not support such a claim. At trial, the district court specifically addressed the

defendants’ right to testify, explaining that the right was personal to each of them, not to

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their attorneys, asking each of them individually after the government rested about whether

they wished to exercise that right. (Doc. 85 at 68-70). Defendant indicated that he had

discussed his right to testify with counsel, he understood the right and it was his decision

not to testify. (Doc. 85 at 70). Therefore, he cannot be heard to claim in the instant motion

that counsel interfered with this right. 

4. Failure to Investigate

Also interspersed within the defendant’s memorandum are allegations that counsel

failed to investigate, failed to thoroughly review documentary evidence, failed to file “all

necessary motions in the pre-trial stages” including motions relating to his arrest and

surrounding circumstances, and failed to subpoena a particular witness.

The testimony that could have been given by the witness in question, defendant’s

son’s elementary school teacher, would not have been helpful to the defendant. According

to defendant, this witness could have testified that the defendant picked his son up from

school from January through May of 2003. However, the testimony at trial was that the first

time the defendant came with Perdue to Pensacola was around June of 2003, when

Robinson, Perdue and defendant Potts rode around smoking marijuana after which

Robinson took Potts and Perdue to sell cocaine to Robinson’s cousin. Therefore, the

testimony would not have provided the “alibi” defendant suggests. 

With respect to his other allegations, all of them are vague and conclusory, and thus

insufficient to pass muster under the Strickland test. See 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).

5. Failure to object to Quantity of Drugs Attributed to Defendant 

Defendant maintains that counsel was constitutionally ineffective when he failed to

object to the drug amount attributed to his client. Defendant claims that he should have

been held accountable for only those portions of the conspiracy that were reasonably

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3

 The government also notes that even if only the amount of cocaine base actually seized

were considered, it was in excess of the 50 gram quantity required to trigger the penalties set forth

in Title 21 U.S.C. § 841(b)(1)(A). 

4

 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

5

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

6

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000).

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foreseeable to him. As noted above, using the marijuana equivalency, the PSR attributed

1,762.77 kilograms of marijuana to the defendant, for a base offense level of 32. However,

the quantity of drugs attributed to him ultimately had no bearing on his total offense level.

Because the instant offense was a felony drug offense, and because the defendant had

at least two prior felony convictions for a crime of violence of a controlled substance

offense, and because the statutory maximum for the charged offense conduct was life, his

offense level was 37 pursuant to § 4B1.1 of the Sentencing Guidelines, without respect to

the quantity of drugs calculated by the probation officer. (PSR¶56). Therefore, counsel’s

failure to interpose any specific objections to the quantity of drugs attributed to him was not

constitutionally ineffective.3

6. Failure to raise Booker/Blakely on Appeal

Finally he maintains that counsel was constitutionally ineffective because he failed

to raise Blakely4 and Booker5 on direct appeal. In the seminal case of Apprendi v. New

Jersey,

6

 the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct.

at 2362-63. See also Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 2432, 153

L.Ed.2d 556 (2002) (concluding under Apprendi that “[c]apital defendants . . . are entitled

to a jury determination of any fact on which the legislature conditions an increase in their

maximum punishment.”). Since Apprendi was decided, the Supreme Court has decided

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the two other landmark cases upon which defendant relies, Blakely v. Washington, and

United States v. Booker. 

As clarified in Blakely:

the “statutory maximum” for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict

or admitted by the defendant. See Ring, supra, 536 U.S. at 602, 122 S.Ct.

at 2428 (“‘the maximum he would receive if punished according to the facts

reflected in the jury verdict alone’” (quoting Apprendi, supra, 503 U.S. at 483,

120 S.Ct. at 2348)) . . . . In other words, the relevant “statutory maximum”

is not the maximum sentence a judge may impose after finding additional

facts, but the maximum he may impose without any additional findings.

124 S.Ct. at 2537-38 (emphasis in original, some citations omitted); see also In re Dean,

375 F.3d 1287, 1290 (11th Cir. 2004) (quoting Blakely). 

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

the Supreme Court extended its holding in Blakely to the Sentencing Guidelines, holding

that the mandatory nature of the federal guidelines rendered them incompatible with the

Sixth Amendment’s guarantee to the right to a jury trial. It excised two parts of the

Sentencing Reform Act to cure the constitutional defects: 18 U.S.C. § 3553(b)(1), which

made the guidelines result binding on the sentencing court and § 3742(e), which required

de novo review of sentences on appeal. Id. at 764. Thus, after Booker, which was

decided during the pendency of the defendants’ direct appeal, the sentencing guidelines

are advisory in nature. 

Although counsel for Potts did not raise the issue, a Blakely claim was brought by

co-defendant Perdue. The Eleventh Circuit noted that because counsel for the defendant

did not raise a constitutional objection to the district court’s application of the sentencing

guidelines, review was under the plain error standard. (Doc. 118 at 11, citing United States

v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)). The appellate court considered the

Blakely/Booker issue and found the claim to be without merit because the defendant had

failed to show that the district court’s error, in sentencing under a mandatory rather than

advisory guidelines scheme, had affected the sentence ultimately imposed. (Doc. 118 at

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7

 Mr. Perdue, the court will recall, was subject to a statutory minimum mandatory of 240

months, and was sentenced to a term of 267 months imprisonment although he was held accountable

for a far greater quantity of drugs than was M r. Potts. 

Case No: 3:03cr150/RV; 3:06cv226/RV/MD

10-15).7 The government argues that defendant Potts has failed to show that had his

attorney raised the same issue raised by defendant Perdue, the outcome of his appeal

would have been any different, and hence he has not shown prejudice and is not entitled

to relief. 

The situations of the two defendants, however, is not identical, and hence

defendant’s claim warrants additional discussion. Mr. Potts’ sentence was based not on

the twenty year statutory minimum mandatory, which had no effect on him for the purposes

of sentencing (doc. 86 at 16), but on his guidelines range after having received the

guidelines label of career offender. The court noted three times at sentencing that the two

offenses that constituted predicate offenses for defendant’s career offender status were

“relatively minor,” and reiterated that it was in light of this fact that it intended to sentence

the defendant at the low end of the applicable guidelines range. (Doc. 86 at 16, 18 & 19).

In addressing the defendant directly, the court did not specifically state that it would have

sentenced defendant differently but for the then-mandatory nature of the guidelines range,

but it did say that “obviously under these circumstances my sentencing options are pretty

restricted.” (Doc. 86 at 18). 

Had counsel raised this issue on appeal, the plain error standard would have

applied. An appellate court may not correct an error the defendant failed to raise in the

district court unless there is: “(1) error, (2) that is plain, and (3) that affects substantial

rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citing United

States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). “If

all three conditions are met, an appellate court may then exercise its discretion to notice

a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. Plain error review is to be exercised “sparingly” and

only “in those circumstances in which a miscarriage of justice would otherwise result.” Id.

(citing Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 2102, 144 L.Ed.2d 370

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Case No: 3:03cr150/RV; 3:06cv226/RV/MD

(1999), United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508

(1993)). 

In Rodriguez, the Booker error arose from the district court’s enhancement of

defendant’s sentence based on the judge’s drug quantity findings which increased the

defendant’s base offense level, guidelines range and sentence under a mandatory

guidelines system. 398 F.3d at 1298. In this case, the error arose from the sentence

enhancement based on defendant’s status as a career offender under the guidelines in

accordance with a mandatory guidelines system. The second prong of the plain error test

was also met in Rodriguez, and in the case at bar. Even if the error was not “plain” at the

time of sentencing because Booker had not yet been decided, “where the law at the time

of trial was settled and clearly contrary to the law at the time of appeal-it is enough that the

error be ‘plain’ at the time of appellate consideration.” Id, 398 F.3d at 1299 (citing Johnson

v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)). 

However, even if the first two prongs of the plain error test are met, as in Rodriguez,

the third prong is not met. The third prong of the plain error test requires that an error have

“affect[ed] substantial rights,” which almost always requires that the error “‘must have

affected the outcome of the district court proceedings.’” Id., 398 F.3d at 1299 (citing Cotton,

535 U.S. at 632, 122 S.Ct. at 1786 (quoting Olano, 507 U.S. at 734, 113 S.Ct. at 1778)).

There must be a reasonable probability of a different result, that is a probability “‘sufficient

to undermine confidence in the outcome.’” Id. (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004) (quoting Strickland

v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984))). With

respect to this third prong, it is the defendant rather than the government who bears the

burden of showing prejudice, and this burden is “anything but easy.” Id. (quoting Olano,

507 U.S. at 734, 113 S.Ct. at 1778).

The Rodriguez court noted that if it were to vacate the sentence and remand for

resentencing in light of Booker, “the district court would be faced with exactly the same

evidence presenting exactly the same factual issues that it has already resolved, and it

would be required to at least consider exactly the same guideline enhancement provisions

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Case No: 3:03cr150/RV; 3:06cv226/RV/MD

it has already applied.” Id. at 1300-1301. The constitutional error is not the use of extraverdict enhancements to reach a guidelines result, but the mandatory nature of the

guidelines once this range is established. Id. at 1301. So long as the guidelines are

applied in an advisory manner, there is no constitutional error in using additional factual

findings to fashion a sentence. United States v. Smith, 480 F.3d 1277 (11

th Cir. 2007).

Thus, the important question is whether there is a reasonable probability of a different

result if the guidelines had been applied in an advisory instead of a binding fashion.

Rodriguez, 398 F.3d at 1301. As in Rodriguez, there is nothing in the record in this case

to conclusively indicate that the district court might have given a shorter sentence, rather

than the same sentence, if the guidelines were applied as advisory with respect to

defendant Potts’ sentence. “The record provides no reason to believe any result is more

likely than the other.” Id. In light of the court’s comments about the “relatively minor”

nature of the offenses that led to the career offender status and the seemingly disparate

sentence, a reasonable person might speculate that had the court had the benefit of

Booker, it might have sentenced the defendant differently. However, because the result

is uncertain or indeterminate, and this court would have to speculate, the defendant has

not met his burden of showing a reasonable probability that the result would have been

different but for the error, he has not met his burden of showing prejudice, and he has not

met his burden of showing that his substantial rights were affected. Id. (citing Jones v.

United States, 527 U.S. 373, 394-395, 119 S.Ct. 2090, 2105, 144 L.Ed.2d 370 (1999)).

Such a finding on the third prong makes further analysis unnecessary. And therefore,

defendant has not met his burden of showing that counsel was constitutionally ineffective

for his failure to raise Blakely/Booker error on appeal. 

Finally, to the extent defendant faults counsel’s failure to anticipate the Booker

decision, it is well established that counsel is not constitutionally required to predict a

change in the law to provide effective assistance of counsel. See United States v. Ardley,

273 F.3d 991, 993 (11th Cir. 2001) (citing Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th

Cir. 1994); Davis v. Singletary, 119 F.3d 1471, 1476 (11th Cir. 1997); Pitts v. Cook, 923

F.2d 1568, 1572-74 (11th Cir. 1991); Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8

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Case No: 3:03cr150/RV; 3:06cv226/RV/MD

(11th Cir. 1986)). This is true even when the change is such that the forfeited issues was,

in hindsight, a sure winner. Id. (Citing Wright v. Hopper, 169 F.3d 695, 707-708 (11th Cir.

1999) (Batson issue); Elledge v. Dugger, 823 F.2d 1439, 1443 (11th Cir. 1987) (Michigan

v. Mosley issue); Thompson v. Wainwright, 787 F.2d at 1459 n. 8 (Ake issue)). 

Based on the foregoing, it is respectfully RECOMMENDED:

The defendant’s second amended motion to vacate, set aside, or correct

sentence (doc. 126) be DENIED.

At Pensacola, Florida, this 27th day of April, 2007.

 /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).

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