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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. CASE NO. 4:01CR47-SPM/AK

WILLIE FRANCIS,

Defendant.

 /

REPORT AND RECOMMENDATION

This cause is before the Court on the motion of Defendant Willie Francis to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Doc. 118. The

Government has responded to the motion, Doc. 134, and Defendant has filed a reply. 

Doc. 136. Subsequently, Defendant filed a document styled as an “Amended 2255

Motion Pursuant to Civil Rule 15,” which, because of the posture of the case, the Court

construed as a motion for leave to amend. Doc. 141. Having carefully considered the

matter, the Court recommends that the motion to vacate be denied.

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BACKGROUND

Defendant Francis was indicted in three counts of a seven-count indictment. In

Count One, he was a co-defendant with Robert Hall and Christopher Brown; in Counts

Two and Five, he was a co-defendant with Brown only. Doc. 1. On November 7, 2001,

Defendant and the Government entered into a Plea and Cooperation Agreement. Doc.

53. In that document, Defendant acknowledged that “absent a substantial assistance

motion, the statutory provisions require a life sentence.” Id. at 3. Defendant also

“specifically waive[d] any Fifth Amendment privilege and any other privilege inconsistent

with the cooperation required by this agreement.” Id. The agreement concluded with

Defendant’s acknowledgment that no other agreements between the parties existed and

that Defendant entered “this agreement knowingly, voluntarily, and upon advice of

counsel.” Id. at 6.

On November 7, 2001, Defendant appeared before the magistrate judge to plead

guilty to Count One. However, during the course of the proceeding, the Court became

concerned about the state of Defendant’s health and continued the plea colloquy “so

that Defendant’s chest pains can be evaluated by a physician.” Doc. 49. The following

day, the colloquy resumed. During the course of questioning, the magistrate judge

specifically directed Defendant’s attention to the Statement of Facts:

MR WHITTINGTON: We had one small change on the front page [of

the Statement of Facts]...with the amounts that

actually were possessed or brought over,

delivered by [Defendant], and Mr. Simpson

made that notation.

THE JUDGE: And you agree that the government could show

at least some of the drugs given to Brown for

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the sale, that was a 24.1 gram sale, was given

to Brown by you, you agree that the

government has evidence of that?

THE WITNESS: Yes, sir.

THE JUDGE: Can you tell me in your own words what you

did that causes you to believe that you are

guilty of Count 1....

THE WITNESS: Sir, myself, I and Mr. Brown, he obtained drugs

from some more individuals and when he

obtained them from the other individuals, Mr.

Hall, he would give me a portion of it to [sell],

because he was having a relationship with my

niece.

THE JUDGE: So let me stop you there, in other words, you

and Mr. Brown had a relationship where he

would give you some drugs to sell and then

you would go and sell them, is that right?

THE WITNESS: Yes, sir.

THE JUDGE: What kind of drugs were these?

THE WITNESS: Crack cocaine.

THE JUDGE: Did you sell more than 50 grams of the crack

cocaine in the course of your relationship with

Mr. Brown?

THE WITNESS: Yes, sir.

THE JUDGE: Are you sure of that?

THE WITNESS: Yes, sir.

THE JUDGE: Are you sure of that?

THE WITNESS: Yes, sir.

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THE JUDGE: Do you understand how having an agreement

with Mr. Brown to sell crack cocaine like that is

a conspiracy, that’s what it’s called in federal

law, it’s an agreement to do something, do you

understand how that is, how that works?

THE WITNESS: Now I do, sir.

Doc. 157 at 12-13; see also Doc. 52.

The Court then explained the sentence which Defendant faced:

THE JUDGE: The maximum sentence that may be imposed

upon your plea of guilty to Count 1 is a

sentence of life imprisonment. There is a plea

agreement?

MR. WHITTINGTON: Yes, sir, there is.

* * *

THE JUDGE: We have had a pause with Mr. Whittington

having a chance to talk to Mr. Francis. Do you

need more time?

THE WITNESS: No, sir.

MR. WHITTINGTON: When you said plea agreement, he thought

maybe there had been a change and there was

an actual agreement as to the sentence.

THE JUDGE: No. Let me hand over the plea agreement to

you and go through that process one more

time.

* * *

MR. WHITTINGTON: [W]e have been through this document a few

times. I think sometimes it’s still difficult for

people who have been in state court frequently

to understand a plea agreement isn’t the same

form that they are used to seeing.

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THE JUDGE: That’s why I’m trying to take such care, so that

you will understand what the differences are.

* * *

Mr. Francis, is that your signature to the plea

agreement?

THE WITNESS: Yes.

THE JUDGE: Okay. This is the part of this process where

I’m supposed to tell you what the maximum

possible penalties are and so I’ll do that now.

The maximum sentence that you could get for

a plea, guilty plea, is life imprisonment. It’s

also the minimum sentence. That means the

only sentence that you could get as a

consequence of pleading guilty, unless there is

a substantial assistance motion, is life in

prison. Do you understand that?

THE WITNESS: Yes, sir.

THE JUDGE: Okay. I’ll talk to you about substantial

assistance motions in just a minute, I

understand that you’re counting on that.

THE WITNESS: Yes, sir.

THE JUDGE: But if you don’t get a substantial assistance

motion, the hard fact is that you will get a life

sentence. Do you understand that fact?

THE WITNESS: Yes, sir.

* * *

THE JUDGE: And knowing that those are the possible

maximum sentences, do you still wish to plead

guilty?

THE WITNESS: Yes, sir.

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Doc. 157 at 14-18; see also Doc. 53.

The Court next explained the application of the Sentencing Guidelines:

THE JUDGE: Sentencing guidelines in federal court provide

that at sentencing, the judge has a report and it

has a lot of characteristics, most notably

though is criminal history, the amount of drugs

involved, the nature of the offense, acceptance

of responsibility for pleading guilty, will cause

the guideline range to go up or down.

Once the range is fixed and decided, then

Judge Mickle within those guidelines can

sentence either somewhere near the bottom or

somewhere near the top and anything would

be legal for him to do. Do you understand

that?

THE WITNESS: Yes, sir.

THE JUDGE: If there is a mandatory life sentence, then there

isn’t any guideline, that’s the only sentence.

If there is a substantial assistance motion that

allows Judge Mickle to go below the guidelines

or below the minimum mandatory life

sentence–are you still with me?

THE WITNESS: Yes, sir.

THE JUDGE: –then he could sentence within the guideline

range, it’s within his discretion, but it’s

permissible at that point if there is a substantial

assistance motion.

THE WITNESS: Yes, sir.

THE COURT: Do you understand all of that?

THE WITNESS: Yes, sir.

* * *

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THE JUDGE: Do you understand that until this presentence

report is completed and until all of the

uncertainties of the substantial assistance

motion are determined, until Judge Mickle has

finally determined where he sits with regard to

a guideline, that it’s impossible to predict the

guideline range?

THE WITNESS: Yes, sir.

THE JUDGE: So whatever calculation that you might have

done in your head with Mr. Whittington is just a

guess at this point. Do you understand that?

THE WITNESS: Yes, sir.

THE JUDGE: Okay. Do you understand that if there is no

substantial assistance motion, Judge Mickle

has to impose the life sentence?

THE WITNESS: Yes, sir.

Id. at 19-23.

The Court then reviewed selected portions of the Plea and Cooperation

Agreement with Defendant and explored the voluntariness of the plea and his

understanding of other critical portions of the Agreement:

THE JUDGE: There is a plea agreement and I have it before

me and I want to go over that with you now. 

Have you had a chance to go over this plea

agreement with Mr. Whittington? 

THE WITNESS: Yes, sir.

* * *

THE JUDGE: Have you read it yourself?

THE WITNESS: Yes, sir, I have.

* * *

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THE JUDGE: Has Mr. Whittington discussed this and

explained all the conditions of the plea

agreement to you?

THE WITNESS: Yes, sir, he has, sir.

THE JUDGE: Do you think you fully understand it and all the

consequences of the plea agreement?

THE WITNESS: Yes, sir, I understand it.

THE JUDGE: Has anyone made any promises of any kind to

you to plead guilty, other than what’s in the

written plea agreement?

THE WITNESS: No, sir.

THE JUDGE: Are you counting on any secret promise from a

law enforcement agent or somebody

representing the government to get you to

plead guilty, that’s not in writing in this plea

agreement?

THE WITNESS: No, sir, no one has promised me anything.

THE JUDGE: Has anyone used any threats or force or

intimidation to make you plead guilty?

THE WITNESS: No, sir, I haven’t been. It’s being given freely.

THE JUDGE: Freely, okay.

On page 2 of this plea agreement, you

say that you agree that you have been

convicted of two or more offenses as set

out in the government’s Information and

Notice of Intent to Pursue Enhanced

Sentences. Let me explain what that

means.

* * *

What this means is that you are

agreeing that the government–there are

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two qualifying convictions in the

government’s notice of intent to pursue

an enhanced sentence and that’s true, you are agreeing that it’s true, and the effect of

this is that if you’re convicted of Count 1, then you get a minimum mandatory life

sentence. Do you understand the consequences of this statement....

THE WITNESS: Yes, sir.

THE JUDGE: Is it true that you [have] been convicted of two

or more drug trafficking offenses in the past?

THE WITNESS: Yes, sir.

* * *

THE JUDGE: You would have a right, if you wish, if this

wasn’t true, you would have a right to contest

that if you wanted to do that and it would

change where we stand in this guilty plea

colloquy that I’m doing right now, but I hear you

say to me that it’s true and you stick by what

you said in your plea agreement, is that true, is

it true that you are convicted of two prior drug

offenses?

THE WITNESS: Yes, sir.

THE JUDGE: You have agreed to cooperate in this case, is

that not right?

THE WITNESS: Yes, sir.

THE JUDGE: And you waive your fifth amendment right to

any self incrimination and give truthful

testimony against other people, is that correct?

* * *

THE JUDGE: Do you understand that that’s what you have

done here?

* * *

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THE JUDGE: Am I mistaken about the nature of this

agreement?

MR. WHITTINGTON: No, sir, you’re correct.

THE WITNESS: You’re not mistaken. I ain’t going to have to

testify on myself, is that what you’re saying?

THE JUDGE: Well, let me get to the specific–

MR. WHITTINGTON: I think he is just confused with the language,

maybe you can clarify it.

THE JUDGE: Let’s go to page 3 of the agreement. Okay,

now, paragraph H there says that you

specifically waive any fifth amendment privilege

against self incrimination, that’s what that

privilege is, and any privilege inconsistent with

cooperation required by the agreement. In

other words, you have agreed to cooperate

fully and truthfully and tell the United States

attorney–

THE WITNESS: Yes, sir, I agree.

THE JUDGE: –matters involving criminal activity of other

people?

THE WITNESS: I agree to that.

THE JUDGE: You agree to that?

THE WITNESS: Yes, sir.

THE JUDGE: In the course of that, if that causes you to

incriminate yourself, you have agreed to do

that as well, tell the whole truth and get it all on

paper. Is that what you plan to do?

THE WITNESS: Yes, sir, I agree to that.

THE JUDGE: Does the government have any conditions to

that?

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MR. SIMPSON: No, Your Honor. I was going to say that we

lawyers find ourselves trying to solve problems

that normal human beings don’t even realize

exist, and there is another provision in here

that says as long as Mr. Francis is truthful, that

those things won’t be used against him.

This specific language is in here

because there was a case in the 11th

Circuit...where somebody agreed to

cooperate and then when called to the

witness stand, said I take the fifth, and

this is the way of insuring we don’t get in

that position. As long as Mr. Francis is

truthful, his statements, subsequent to

the agreement...then he is not

increasing his guidelines or otherwise

impairing himself.

THE JUDGE: I learn something new everyday and I

appreciate your continuing education of me.

I can see what your concern is and Mr.

Simpson has clarified it, and as he said, if you

give truthful evidence as to anything the

government wants to know, the things which

are against you, won’t be used against you.

THE WITNESS: Yes, sir.

THE JUDGE: Do you understand that fact?

THE WITNESS: Yes, sir.

THE JUDGE: Do you understand that if you refuse to

cooperate as you promised, then the

government can treat the agreement as being

revoked?

THE WITNESS: Yes, sir, I understand.

THE JUDGE: And you are still stuck with your guilty plea. Do

you understand that?

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THE WITNESS: Yes, sir.

THE JUDGE: At that point, the government can refile

dismissed charges and otherwise proceed and

all the information that they got from you, they

can use against you. Do you understand that?

THE WITNESS: Yes, sir.

THE JUDGE: So there is a premium for a lot of reasons for

you to tell the truth and give substantial

cooperation. Do you understand that?

THE WITNESS: Yes, sir.

THE JUDGE: If the government decides that the cooperation

is not substantial, do you understand that they

may refuse to file any one of these motions?

THE WITNESS: Yes, sir.

THE JUDGE: It’s up to them totally and neither you nor

Judge Mickle can make them do it if they

decide that they don’t believe that the

assistance has been substantial. Do you

understand that?

THE WITNESS: Yes, sir, I understand that.

THE JUDGE: Is the government in a position to know yet

whether there will be a motion filed?

MR. SIMPSON: No, Your Honor....

* * *

THE JUDGE: Okay. So the important thing I must draw to

your attention is that it’s uncertain whether the

government will file this motion, and if they

don’t, then Judge Mickle has to give you a life

sentence. Do you understand that?

THE WITNESS: Yes, sir.

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Id. at 24-32.

Defendant also agreed that he understand that the conduct alleged in the counts

of the indictment which were being dismissed could be considered as relevant conduct

at sentencing. Id. at 33. Finally, he stated that he thought his attorney had “done a

good job.” Id.

Subsequently, the Court accepted the guilty plea. Doc. 65. A few days before

sentencing, the Government filed a motion concerning substantial assistance pursuant

to 18 U.S.C. § 3553(e) to “relieve defendant from the statutory mandatory penalties and

to leave him subject to the Sentencing Guidelines.” Doc. 79. Without substantial

assistance consideration, Defendant was facing a mandatory life sentence, as more

previously explained. In particular, the Government noted Defendant’s “readily admitted

involvement in the offenses charged” and his testimony at Hall’s trial. Id. at 2. The

Government concluded:

The government does not excuse or condone defendant’s repeated and

continual involvement in drug transactions. Defendant is a career

offender, with nine prior sets of felony drug convictions, as well as two

distinct convictions for possession of drug paraphernalia, and a conviction

for resisting arrest with violence. Seven of the drug felony convictions

were for distribution offenses or were based upon facts showing

distribution....Defendant has 20 criminal history points, seven more than

are required to establish a criminal history category VI. Defendant was in

custody or under supervision for almost all of the fifteen years prior to his

arrest in this case.

The government would not have used defendant as a witness, nor filed

this motion, if he had not cooperated immediately and consistently, if he

had played a greater role in the offense, or if he would not still be facing

substantial penalties. While this motion permits the Court to sentence

below the otherwise mandatory life term, the government makes no

recommendation that any particular sentence be imposed, or than any

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leniency be granted. This matter lies within the sound discretion of the

Court.

Id. at 2-3.

On February 11, 2002, Defendant appeared for sentencing. At that time, he

personally addressed the Court, stating:

I did wrong. I apologize to the court and the United States of America. I

did it. I did it. They told me not to do it. I did it. I only did it because I

needed to pay my bills....

* * *

In a way I thank the agents for arresting me....

I’m not saying all this to make an excuse....I know I got to pay–pay for it,

and I’m guilty. I’m going to pay for it by doing my time. I apologize. I just

ask you not to give me too much I can’t handle, so I can come back and

have a shot at life....

Doc. 124 at 8-9.

After considering the matter, the Court sentenced Defendant to 262 months

imprisonment. Docs. 82, 87, & 125. In sentencing Defendant below the statutory

mandatory life sentence and at the low end of the Guidelines range, the Court found:

[P]ursuant to the Sentencing Reform Act of 1984 and all amendments, it is

the judgment of the court that you, Willie James Francis, are hereby

sentenced to a term of imprisonment of 262 months. This sentence is

imposed at the bottom of the guidelines range and below the mandatory

life sentence you were facing by statute because the government has filed

a 3553(e) substantial assistance motion on your behalf. Your cooperation

was timely rendered, significant, and useful to the government in the

prosecution and investigation of others.

[P]rior to the filing of this motion, I would have been required to sentence

you to life imprisonment. The 262-month sentence I now impose is

sufficient to provide just punishment to you for your criminal conduct and

will serve as a general deterrent to others.

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Doc. 124 at 10-11. Defendant did not appeal his sentence.

The instant motion to vacate ensued. On this occasion, Defendant raises one

ground for relief: “Counsel ineffectively failed to move the court to have all pre-plea

admissions and cooperation as plea related negotiations under Rule 11(e)(6). Absent

counsel’s omission there is a reasonable probability that Movant’s base offense level

would be years shorter.” Doc. 118 at 5. In his motion, Defendant admitted that a

confidential informant made several separate purchases of crack cocaine from him

and/or Brown and that the total “amount of drugs actually involved in sales to the C.I. 

when Francis participated was 65 grams of crack cocaine.” Doc. 118, Memorandum at

5. Subsequently, he was arrested and Mirandized and then “agreed to cooperate with

authorities.” Id. He more specifically maintains that he informed counsel of the

following:

Leon County Sheriff Deputy Ed Cook read [Defendant] his rights. After

being read his rights Deputy Cook, DEA Agent Andris and FDLE Agent

Kitt-Wood informed [Defendant] of the following....

Christopher Brown is going to get a life sentence in prison, and he (Brown)

had implicated [Defendant]. And because of [Defendant’s] prior record he

was a lifer also. 

The Officers informed [Defendant] that there was a way that he could help

himself, and that was by cooperating with the investigation right now. If

[Defendant] refused to cooperate he will get life. But, if [Defendant]

wanted to help himself, he had better tell the officers everything he knew

and had memory of doing with Christopher Brown and others. Officers

informed [Defendant] that everything he gives them will be used to put a

good word in with the prosecutor. The officers stated that his decision had

to be made now and immediately, because later will be too late.

[Defendant] asked Officers would it keep him from getting all of the time in

prison that the officers were saying he would get if he cooperated. 

Officers responded that they could make no promises about how much

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time [Defendant] would get, but it will not be that much, but it was

[Defendant’s] life it was his gamble to take, life or less than life. (These

conversations began in the van enroute to Sheriff Headquarters).

It was the above discussions that convinced [Defendant] to cooperate to

get a lesser sentence upon conviction.

Id. at 7-8. Defendant then asserts that if counsel had informed the Court that Defendant

believed there was “an understanding or a prediction” regarding his sentence, then the

Court “would have been compelled to evaluate the admissibility of pre-plea admissions.” 

Id. at 9. According to Defendant, he asked counsel “during a visit why was he being

held accountable for the very same conduct that he was told would be used to help

him,” id. at 9 n.1, because he was “under the impression that the only drugs that he

would be sentenced for was the drugs actually sold by himself to the C.I. and not the

cooperation styled admissions at Sheriff’s Headquarters.” Id. Defendant maintains that

counsel “became very upset and intimidated [Defendant] by making it clear by stating

that he would get life if he pissed counsel the hell off.” Id. In Defendant’s view, he

was prejudiced by counsel’s failure “because his guideline sentence was increased by

two levels when the court calculated the pre-plea admissions into his attributable

relevant conduct.” Id. at 11. In Defendant’s view, without his cooperation, the

Government would only have known about “the 65 grams of crack cocaine that

[Defendant] had participated in selling to the C.I.” Id. However, based on information

divulged during cooperation, he “admitted an additional 300 grams of crack cocaine.” In

short, his base offense level should have been 29 after credit for acceptance of

responsibility. Id. 

There is no dispute that this motion is timely.

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Approximately nine months after the Government responded to the original

motion, Defendant filed an “Amended 2255 Pursuant to Civil Rule 15,” which, because

the Government had already filed a response, the Court interpreted as a motion for

leave to amend. Doc. 141. See Fed. R. Civ. P. 15(a) (after responsive pleading is filed,

party may amend only with leave of court). In his proposed amendment, Defendant

maintains that his counsel was ineffective as follows:

[Defendant’s] statements made to officers were not admissible because

they were given under the promise that all cooperation would be used to

benefit [Defendant] to escape a life sentence. Statements induced by

promise are not admissible. Exclusive of inadmissible statements [his]

sentence would be less.

Doc. 141 at 5. This proposed amendment, which was filed on April 2, 2004, was filed

after the one-year statute of limitations had expired.

DISCUSSION

The first question which must be addressed is whether the Court should consider

the proposed amendment since it was filed well after the expiration of the one-year

statute of limitations for seeking § 2255 relief. Because the proposed claim of

ineffective assistance of counsel is facially untimely, it is barred unless it “relates back”

to the original filing pursuant to Fed. R. Civ. P. 15(c). Davenport v. United States, 217

F.3d 1341, 1344 (11th Cir. 2000). The new claim “will relate back and be considered

timely if [it] ‘arose out of the conduct, transaction, or occurrence’ set forth in his original

§ 2255 motion.” Davenport, 217 F.3d at 1344. For relation back to apply, the untimely

claim must “have more in common with the timely filed claim than the mere fact that

they arose out of the same trial and sentencing proceeding.” Id. Rather, the untimely

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claim “must have arisen from the ‘same set of facts’ as the timely filed claim, not from

separate conduct or a separate occurrence in ‘both time and type.’” Id. Rule 15(c) is not

“so broad as to allow an amended pleading to add an entirely new claim based on a

different set of facts.” Pruitt v. United States, 274 F.3d 1315, 1318 (11th Cir. 2001). 

Thus, while the rule “contemplates that parties may correct technical deficiencies or

expand facts alleged in the original pleading, it does not permit an entirely different

transaction to be alleged by amendment.” Pruitt, 274 F.3d at 1318.

Having carefully considered the matter, the Court finds that consideration of the

amendment is appropriate, as both the initial claim and the proposed claim involve

counsel’s alleged ineffectiveness for failing to act with regard to certain pre-plea

admissions made by Defendant to law enforcement officers. Thus, the motion to amend

is well taken, and the Court will consider the claim set forth in the motion to amend. 

Though the Court would usually require Defendant to file an amended § 2255 motion

which incorporates all facts and issues to be decided, the Court will make an exception

on this occasion and consider the facts as alleged in the original motion since

Defendant did not include any new factual basis for the amended claim. With that said,

the Court turns to a consideration of the amended ineffective assistance of counsel

claim.

To prevail on a constitutional claim of ineffective assistance of counsel, a

defendant must demonstrate (1) that his counsel’s performance was below an objective

and reasonable professional norm, and (2) that he was prejudiced by this inadequacy. 

Strickland v. Washington, 466 U.S. 668, 686 (1984). The Court may dispose of the

claim if a defendant fails to carry his burden of proof on either the performance or the

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prejudice prong. Id. at 697. The Court need not address the adequacy of counsel’s

performance when a defendant fails to make a sufficient showing of prejudice. Id.

With regard to the performance prong of Strickland, a defendant must provide

factual support for his contentions that counsel’s performance was constitutionally

deficient. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The Court must

consider counsel’s performance in light of all of the circumstances at that time and

indulge in a strong presumption that counsel’s conduct fell within the wide range of

reasonably professional assistance. Strickland, 466 U.S. at 689-90. 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.” Grayson v. Thompson, 257 F.3d

1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption...that [counsel] did what he

should have done and that he exercised reasonable professional judgment.” Chandler

v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531

U.S. 1204 (2001).

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

“reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability is defined

as a probability sufficient to undermine confidence in the outcome.” Id. Additionally,

prejudice is established only with a showing that the result of the proceeding was

fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

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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, 218 F.3d at 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 a 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, 534 U.S. 903 (2001).

In this case, counsel did not act ineffectively for failing to seek exclusion of

various admissions Defendant made to law enforcement officers during the course of

their investigation. These were not pre-plea negotiations pursuant to Fed. R. Crim. P.

11 or Fed. R. Evid. 410, as Defendant has made no allegation that the United States

Attorney participated in any of these meetings. See United States v. Jones, 32 F.3d

1512, 1517 (11th Cir. 1994) (rule precluding admission of pre-plea negotiations does not

apply to statements made to law enforcement officers).

Furthermore, Defendant was, by his own admission, read his Miranda rights, and

he voluntarily chose to begin his cooperation immediately. Despite Defendant’s present

representation that the officers told him he would not get “that much” time if he

cooperated, he clearly told the Court under oath at the plea hearing that no promises

were made to him by anyone regarding the sentence he might receive. The magistrate

judge very carefully probed Defendant’s understanding of the plea agreement, the

impact of a possible motion for substantial assistance, and his agreement to the drug

quantities in the Statement of Facts, and he plainly told the Court that he understood

what he was doing and the ramifications of his actions.

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The law is well established that a “guilty plea means something. It is not an

invitation to a continuing litigation dialogue between a criminal defendant and the court.” 

Murray v. United States, 145 F.3d 1249, 1254 (11th Cir. 1998). In fact,

the representations of the defendant, his lawyer, and the prosecutor at...a

[plea] hearing, as well as any findings made by the judge accepting the

plea, constitute a formidable barrier in any subsequent collateral

proceedings. Solemn declarations in open court carry a strong

presumption of verity. The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as

are contentions that in the face of the record are wholly incredible.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). In the end, Defendant received the

benefit of the deal he was hoping for when he began his cooperation in that he was not

sentenced to a mandatory life sentence--a mandatory sentence which was based solely

on his criminal history. Counsel had no grounds under which to contest Defendant’s

incriminating statements to law enforcement. Defendant was plainly Mirandized and

there is no evidence, other than what Defendant says in hindsight, that would have led a

reasonable competent attorney to suspect that his client’s desire to plead guilty was

anything less than voluntary and knowing. Counsel cannot be ineffective for failing to

lodge frivolous objections to matters which were part and parcel of the Plea and

Cooperation Agreement and the supporting Statement of Facts. During the course of

the plea proceedings, Defendant had every opportunity to advise the Court that, based

on representations made by law enforcement, he believed he would not get “that much”

time, to dispute the drug computation in the Statement of Facts, and to complain about

his attorney’s performance with regard to both of these issues. The Court was very

careful in its handling of all of these issues during the plea dialogue, and Defendant has

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offered nothing to relieve him of his sworn statements to the Court or to impugn the

representation he received.

CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED:

That Defendant’s motion to amend, Doc. 141, be GRANTED;

That Defendant’s motion to vacate, set aside, or correct sentence, Doc. 118,

along with the additional claim alleged in Doc. 141, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 13th day of October, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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