IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. NO. 5:98CR30-SPM/AK

TOD STEVEN FAUGHT,

Defendant.

ORDER

This cause is before the Court on Defendant Tod Steven Faught’s motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255 with supporting affidavit. Doc. 173 and

183. Also pending are Defendant’s numerous motions to supplement, four which involve

counsel’s alleged ineffective with respect to the witness, Pamela Wilson, Docs, 212, 217, 218, &

228, and two which request consideration of Blakely and Booker. Docs. 267 & 270. The

Government has responded to the motion to vacate, Doc. 185, and Defendant has filed his reply. 

Doc. 192. At that point, the Court believed this matter to be in a posture for decision.

However, as the Court has proceeded, it has become concerned about one allegation in

particular, namely, that counsel failed to “advise[ ] him of the benefits of pleading guilty [or] the

consequences of losing at trial,” and that he failed to “advise[ ] him of the Federal Sentencing

Guidelines, its application with respect to a conviction entered, whether by guilty plea or jury

verdict.” Doc. 173, Amended Mem. at 18. He also complains that counsel never “advise[d] him

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of any plea offer of the government,” id. at 19, and that the only time he was offered a plea was

immediately before trial when the United States Attorney “came to [the] room and told trial

counsel 28, counsel ask[ed] if [Defendant] wanted to plea [and] [Defendant] said no, because

[he] did not understand what the United States Sentencing Guidelines was, he thought [the

Government] was talking about 28 years not the Sentencing Table Level 28....” Doc. 183. 

According to Defendant, if counsel had “constitutionally advised him, he would have pled

guilty.” Doc. 173, Amended Mem. at 18.

In response, counsel states that he “repeatedly discussed” the Guidelines with Defendant,

“including repeated reviews of the table in the back of the guidelines, and the application of

enhancements, including role and the like.” Doc. 185, Ex. 9. He maintains that he never

guaranteed Defendant “what his sentence might be, and at all times (at least six different

occasions) referred to the Sentencing Guidelines in the case,” and that, in response to

Defendant’s query, he advised him that the only chance he had for receiving a sentence of less

than five years was by cooperating. Id. In support of his affidavit, counsel attached a draft of a

Memorandum of Interview from the Internal Review Service, which states that Defendant

advised agents that “he would have to serve five years in jail” and that he was willing to “make

telephone calls directly to three cartel leaders to set up money laundering deals.” Id. The Court

is thus at a loss as to how the Government can say that he “declined cooperating.” Doc. 185 at

28.

Section 2255 “provides that the court shall conduct a hearing–regardless of whether one

is requested–if the court cannot determine conclusively the issue before it based on the ‘files and

records of the case.’” Humphrey v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989)

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(emphasis in original). When the Court is faced with conflicting evidence such as it finds in this

case, that is, where the defendant’s word is pitted against that of his counsel, and the Court

cannot conclusively determine the issue based on the record evidence, the Court must hold an

evidentiary hearing, the Eleventh Circuit having specifically rejected a per se rule which

“‘credit[s] counsel in case of conflict.’” Gallego v. United States, 174 F.3d 1196, 1198-99 (11th

Cir. 1999). From the record presently before the Court, it cannot “determine conclusively” this

one allegation of ineffectiveness. Defendant’s allegations obviously implicate the prejudice

prong of Strickland, since, even if Defendant had pled straight up with neither a plea nor a

cooperation agreement and all things had otherwise been equal, he would have guidelined out at

a Level 30 or 31 at the very most as he would not likely have been assessed the two points for

obstruction of justice and would likely have received an acceptance of responsibility credit of

either two or three points.

However, because of the logistical problems associated with transporting Defendant from

Salters, South Carolina, where he is presently housed, before the Court schedules a hearing, it

will allow the parties one additional opportunity to submit affidavits; law enforcement and

counsel memoranda, field notes, or reports; or any other documents opposing or supporting this

claim. After the Court reviews the new evidentiary materials, it will determine whether a

hearing is necessary.

Accordingly, it is ORDERED:

That, no later than September 18, 2006, the parties shall submit any additional

evidentiary materials either supporting or opposing Defendant’s claim that counsel was

ineffective as outlined in the body of this Order.

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SO ORDERED this 18th day of August, 2006.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

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