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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. 3:04cr5/MCR

3:05cv166/MCR/MD

KIMBERLY RENEE CLARKE

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 (doc. 109). The government has filed a response

(doc. 140) and the defendant has not filed a reply, despite having been afforded the

opportunity to do so. (Doc. 142). 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 was charged in two counts of a three count indictment with conspiracy

to possess with intent to distribute five kilograms or more of cocaine and possession with

intent to distribute more than 500 grams of cocaine on a date certain. Defendant was

represented by appointed counsel, Spiro Kypreos. The government filed a notice of

enhancement indicating that the defendant was subject to increased penalties under Title

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21 U.S.C. §§ 841(a)(1) and 851 as a result of a prior felony drug conviction in Escambia

County. (Doc. 19). 

The court held a rearraignment proceeding on February 20, 2004. (Doc. 56). At this

hearing, defendant expressed disagreement with the facts as set forth in her written plea

and cooperation agreement. Therefore, the court declined to accept her plea and the

hearing was postponed. (Doc. 56 at 10-14). 

A second rearraignment proceeding was held on March 9, 2004 after the court had

received a letter from the defendant acknowledging the facts as set forth in the plea

agreement. (Doc. 57). There was discussion of a document that had been sent to the

court captioned “ineffective assistance of counsel” (doc. 23), but defendant denied any

knowledge of the document, or having had any role in its delivery to the court. (Doc. 57

at 3-6). The defendant acknowledged that she had signed the written plea and

cooperation agreement dated March 8, 2004. The district court was very thorough in its

colloquy, and went over many of the terms of the agreement, specifically noting that the

plea agreement stated that the defendant agreed that if her case proceeded to trial, the

government could prove beyond a reasonable doubt that at least five kilograms of cocaine

was distributed during the conspiracy. (Doc. 57 at 15; doc. 27 at 2). Through this

agreement, defendant waived her right to have a jury determination of the drug quantity.

(Doc. 57 at 16; doc. 27 at 2). Relevant to the instant motion, the agreement set forth the

penalties for the charged offenses, including a minimum mandatory term of twenty years

imprisonment on Count 1, or, if the court found that she was accountable for between 500

grams and 5 kilograms of cocaine, a minimum mandatory term of ten years imprisonment.

(Doc. 57 at 16-17; doc. 27 at 3). Defendant indicated she understood. She also

acknowledged her prior state drug conviction. (Doc. 57 at 18-19). 

With respect to sentencing, the agreement provided that the district court would be

the final arbiter of facts relevant to her sentence including any mitigating or aggravating

factors. It further provided that if in the sole discretion of the United States Attorney, the

defendant was deemed to have provided substantial assistance in the investigation or

prosecution of other persons who have committed offenses, either prior to sentencing or

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within the time provided by Rule 35 of the Federal Rules of Criminal Procedure, the United

States would file an appropriate substantial assistance motion. (Doc. 57 at 24-25, 27; doc.

27 at 9-10). Mr. Kypreos noted that he had explained to the defendant about substantial

assistance and how the guidelines or statutory sentencing scheme worked, and the court

followed up with additional questions. (Doc. 57 at 24-26, 27). The agreement provided

that the ultimate sentence was left to the discretion of the district court, and if such a

motion was not filed, the defendant agreed that the decision not to file the motion would

be subject to legal challenge only if made for a constitutionally impermissible reason. (Doc.

27 at 10). Both parties reserved the right to appeal the sentence. (Doc. 27 at 10).

Counsel stated for the record that while he had explained to the defendant how the

guidelines could apply to her case, he had made no promises about the sentence she

could expect. (Doc. 57 at 29-30). The defendant indicated that she understood that even

if the sentence was more severe than she had hoped for or anticipated, this would not be

a ground for withdrawing her plea. (Doc. 57 at 27, 32). Finding the defendant’s plea to be

knowing, voluntary and intelligent, the district court accepted the plea.

Although she had been charged in a conspiracy involving five kiligrams or more of

cocaine, the Presentence Investigation Report attributed one kilogram of cocaine to the

defendant. (PSR ¶ 37). After a base offense level of 26, and a three level adjustment for

acceptance of responsibility, defendant’s total offense level was 23 . (PSR ¶ 45, 50, 53).

With her criminal history category of II, the applicable guidelines range was 51 to 63

months. However, because of the enhancement, the applicable statutory minimum

mandatory based on one kilogram of cocaine was 120 months.

 At sentencing, the parties recognized the court’s lack of discretion in the case, given

that no 5K1 motion had been filed. (Doc. 58 at 3-4). Defendant was sentenced to the

statutory minimum mandatory term of 120 months imprisonment. (Doc. 36, 37). She

appealed, and her conviction and sentence were affirmed on April 15, 2005, the appellate

court having found no arguable issues of merit. (doc. 106). Defendant timely filed her initial

§ 2255 motion on May 8, 2005 (doc. 107) and the instant amended motion pursuant to

court order on June 8, 2005. (Doc. 109). Defendant now claims that counsel was

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constitutionally ineffective and her due process rights were violated due to counsel’s

ineffectiveness. 

II. LEGAL ANALYSIS

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). 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

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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)).

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. 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 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 Stricklandtest.

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).

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. Williamson v. Moore, 221 F.3d

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

Defendant first contends that counsel was ineffective because he failed to challenge

the government’s decision to seek an enhanced sentence, because her cooperation and

minimal role in the offense should have given the government reason not to seek the

enhanced penalty. The court assumes the defendant refers to the enhancement for her

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prior felony drug conviction. Even the court agreed at sentencing that the defendant’s

sentence was harsh. However, while defendant’s prior felony drug conviction, her

cooperation, and her role in the offense all may potentially impact her sentence, they are

separate and independent issues, each of which stands or falls on its own set of underlying

facts. In this case, the enhancement was proper because of the defendant’s criminal

history. Defendant admitted the validity of the prior conviction at rearraignment, and offers

no legal basis to challenge the validity of that conviction in the instant motion. The

government states in its memorandum that the office of the United States Attorney adheres

to a policy directing that, where applicable, an § 851 enhancement is to be filed.

Therefore, counsel was not ineffective for failing to challenge the filing or the application

of the enhancement. 

Defendant also contends that counsel should have moved for a minor participant

role reduction because her participation in the conspiracy was limited to a single delivery

of cocaine. Because the statutory minimum mandatory sentence applied to defendant’s

case, even if defendant were entitled to this reduction, it would have had no bearing on her

ultimate sentence. Therefore, even if counsel could or should have made this argument,

she has failed to show prejudice.

Defendant next claims that counsel failed to instruct her about the minimum

mandatory sentence or options available to avoid the sentence enhancement. This

statement is directly refuted by the plea colloquy, as set forth above. At rearraignment,

defendant stated she had reviewed the plea and cooperation agreement, which set forth

the penalties she faced, and the district judge also went over these matters with her,

including the possibility of receiving a sentence departure if she provided substantial

assistance. Defendant indicated she understood. A defendant’s statements during a Rule

11 colloquy as well as any findings made by the judge accepting the pleas constitute a

formidable barrier in any subsequent collateral proceedings. Blackledge v. Allison, 431

U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); cf. Holmes v. United States,

876 F.2d 1545, 1550 (11th Cir. 1989) (trial court satisfied itself during Rule 11 colloquy of

voluntary and understanding nature of plea). Solemn declarations made under oath in

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open court carry a strong presumption of verity. Blackledge, 431 U.S. at 73-74, 97 S.Ct.

at 1629. They are presumptively trustworthy and are considered conclusive absent

compelling evidence showing otherwise. Id.; see also United States v. Gonzalez-Mercado,

808 F.2d 796, 800 n.8 (11th Cir. 1987); Downs-Morgan v. United States, 765 F.2d 1534,

1541 n. 14 (11th Cir. 1985); Potts v. Zant, 638 F.2d 727, 750-51 (5th Cir. 1981) (citing

United States v. Sanderson, 595 F.2d 1021 (5th Cir. 1979)); Nguyen v. United States, 114

F.3d 699, 703 (8th Cir. 1997); United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995);

United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991); United States v. DeFusco, 949

F.2d 114, 119 (4th Cir. 1991). “[i]f the Rule 11 plea taking procedure is careful and detailed,

the defendant will not later be heard to contend that he swore falsely.” United States v.

Stitzer, 785 F.2d 1506, 1514, n.4 (11th Cir. 1986). Furthermore, at sentencing, defense

counsel stated in open court that he had explained to his client that she still could receive

a benefit of substantial assistance and avoid the mandatory sentence if she continued to

cooperate. (Doc. 58 at 3).

Defendant complains that her attorney failed to secure a “bond” or pre-trial release

in her case. The defendant’s detention hearing was held before the undersigned, who,

after hearing the evidence presented by the defense, determined that there were no

conditions or combination of conditions that could be imposed that would guarantee

defendant’s presence at trial or the safety of the community. (Doc. 29 at 33). The truth

of the matter is, it was not the fault of counsel that the court determined a bond was not

appropriate in the defendant’s case. This ruling was based on the facts as presented to

the court. Defendant has suggested no other information that counsel could or should

have presented that would have changed the court’s ruling. Thus, she has failed to show

either deficient performance or prejudice and she is not entitled to relief.

Defendant next claims she “waived appeal due to ineffective assistance of counsel.”

This claim is frivolous, as the plea agreement permitted both parties to appeal, and

defendant in fact did appeal. Defense counsel was allowed to file an Anders brief and

withdraw because there were no arguable issues of merit. (Doc. 106).

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Finally, defendant contends counsel should have sought a 5K1 reduction at

sentencing for her cooperation. As set forth above, the plea agreement expressly stated

that the decision whether to file a 5K1 motion was within the sole discretion of the United

States Attorney. Defense counsel had no power or input in this matter, other than to file

a legal challenge if he believed the decision not to file the motion was based on a

constitutionally impermissible reason. Wade v. United States, 504 U.S. 181, 185-86, 112

S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992). Defendant has not suggested that this is

the situation in her case. Furthermore, the issue of defendant’s cooperation was discussed

at sentencing, and both the Assistant United State Attorney and the court expressed hope

that the defendant would continue to cooperate so that perhaps a Rule 35 motion could

be filed in her behalf. (Doc. 58 at 3-4).

In sum, all of the claims raised by defendant are squarely refuted by the record.

She has not shown that counsel’s performance was constitutionally deficient, and she is

not entitled to relief.

Based on the foregoing, it is respectfully RECOMMENDED:

The motion to vacate, set aside, or correct sentence (doc. 109) be DENIED.

At Pensacola, Florida, this 10th day of November, 2005.

 /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. 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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