[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-12390

Non-Argument Calendar

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D.C. Docket Nos. 1:15-cv-00092-WLS,

1:13-cr-00033-WLS-TQL-1

JAMES L. STILLWELL, JR., 

 Petitioner-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(September 21, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Appellant James Stillwell, proceeding pro se, appeals the district court’s 

order denying his motion vacate, set aside, or correct his sentence filed pursuant to 

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28 U.S.C. § 2255. On appeal, Stillwell argues that the district court erred in 

denying, without an evidentiary hearing, his claim that his counsel rendered 

ineffective assistance by advising him that the conduct related to two dismissed 

counts would not be considered relevant conduct for sentencing and that his appeal 

waiver would not prevent him from appealing the district court’s guidelines 

calculations. After careful review, we affirm.

I. BACKGROUND

In July 2013, Stillwell was charged with three counts of being a felon in 

possession of a firearm, in violation of 18 U.S.C. § 922(g) (“Counts 1 through 3”). 

Stillwell later pled guilty to one count of possession of a firearm by a convicted 

felon (Count 1) pursuant to a written plea agreement. The plea agreement stated 

that Count 1 carried a maximum sentence of 10 years’ imprisonment. In exchange 

for Stillwell’s guilty plea to Count 1, the Government agreed to dismiss Counts 2 

and 3. The agreement further stated that pursuant to the relevant conduct provision 

under U.S.S.G. § 1B1.3, the facts underlying the dismissed Counts 2 and 3 would 

be considered in determining Stillwell’s sentence. The plea agreement also 

contained an appeal waiver that stated:

The Defendant understands that ordinarily Title 18, United States 

Code, Section 3742, will in certain cases allow for a direct appeal 

after sentencing followed by the Court of Appeals’ limited review of a 

defendant’s sentence. But once this agreement is accepted and 

sentence is imposed by the District Court, defendant by this 

agreement forever waives any right to an appeal or other collateral 

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review of defendant’s sentence in any court. However, in the event 

that the District Court imposes a sentence that exceeds the advisory 

guideline range, then the defendant shall retain only the right to 

pursue a timely appeal directly to the Court of Appeals after the 

District Court imposes its sentence. In the event that the defendant 

retains the right to a direct appeal, that right is limited appealing 

sentencing issues only. 

Stillwell initialed each page of the plea agreement and signed the agreement 

acknowledging that he fully understood and agreed to its terms. 

At the plea hearing, the district court explained that by pleading guilty to 

Count 1, Stillwell faced a maximum sentence of ten years’ imprisonment. Stillwell 

stated that he had read and discussed the plea agreement with his attorney and 

believed that he understood its terms. The district court informed Stillwell that any

recommendations in the plea agreement were merely recommendations and that it 

would be up to the court to decide Stillwell’s sentence. Stillwell acknowledged 

that he would not have grounds to withdraw his guilty plea if his sentencing 

guidelines range ended up being different than he expected. 

The district court also explained that Stillwell was giving up his right to 

appeal any sentence imposed, except for specific circumstances, such as ineffective 

assistance of counsel and prosecutorial misconduct, if he received a sentence above 

the guideline range, or if the Government appealed. Stillwell stated that he 

understood. The district court reiterated that “[e]xcept for those three general 

circumstances . . . [Stillwell was] waiving or giving up [his] right to appeal forever, 

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in any Court, the sentence handed down because of a plea of guilty.” Stillwell 

acknowledged that he understood and stated that he did not have any questions 

about the appeal waiver. 

The Government summarized the facts that it would have proven at trial, 

including the facts from the dismissed Counts 2 and 3 pursuant to the relevant 

conduct provision under U.S.S.G. § 1B1.3. Apart from some immaterial factual

disagreements, Stillwell acknowledged that the Government could prove those 

facts at trial. Stillwell stated that he had no questions about pleading guilty. In 

fact, he told the district court: “Everything is clear.” Consequently, the district 

court found that Stillwell entered the guilty plea knowingly and voluntarily. 

The Presentence Investigation Report assigned Stillwell a base offense level 

of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(B). He received the following: (1) a 6-

level enhancement under § 2K2.1(b)(1)(C) because the offense involved 25 to 99 

firearms; (2) a 2-level enhancement under § 2K2.1(b)(1)(4)(A) because the offense 

involved a stolen firearm; and (3) a 4-level enhancement under § 2K2.1(b)(6)(B) 

because he possessed a firearm in connection with another felony offense. With a 

3-level reduction for acceptance of responsibility, Defendant’s total offense level 

was 29. Based on a total offense level of 29 and a criminal history category of I, 

Defendant’s guideline range was 87 to 108 months’ imprisonment. Defendant 

objected to the probation officer’s consideration of conduct related to the two 

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dismissed felon-in-possession counts for purposes of calculating the guideline 

range. 

At the sentencing hearing, Stillwell reiterated his objection, arguing that his 

three felon-in-possession charges were separate crimes with separate facts, and 

therefore were not relevant to the calculation of the guideline range. The district 

court overruled the objection, explaining in part that Defendant’s plea agreement 

stated that the facts relevant to the two dismissed felon-in-possession charges 

would be considered in determining Stillwell’s sentence pursuant to the relevant 

conduct provision under U.S.S.G. § 1B1.3. The district court therefore sentenced 

Stillwell to 108 months’ imprisonment. We dismissed Stillwell’s direct appeal on 

the ground that it was barred by the appeal waiver in his plea agreement. 

In June 2015, Stillwell filed the present § 2255 motion raising two grounds 

for relief. Of relevance to this appeal, he argued that his attorney was ineffective 

for advising him that his appeal waiver would not prevent him from appealing 

errors in his guideline calculations. Based on his attorney’s advice, he pled guilty 

instead of going to trial. He also attached a letter he received from his attorney, 

Keith FitzGerald, in which FitzGerald stated the following:

I provided you with incorrect information at your plea. While I knew 

there was an appeal waiver in the plea agreement, I failed to research 

whether or not that appeal waiver also waived appeals of the 

sentencing guideline calculations. Based on my advice that even 

though there was a plea waiver, we could appeal the guideline 

calculation, you decided to plead guilty. Additionally, when the judge 

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asked if you were aware of the plea waiver, I told you to say yes based 

on my incorrect assumption.

A magistrate judge issued a Report and Recommendation (“R&R”), 

recommending that Stillwell’s § 2255 motion be denied. The magistrate judge 

concluded that Stillwell’s guilty plea was knowing and voluntary and that Stillwell 

had the opportunity to object to the appeal waiver but did not do so. Moreover, 

even if Stillwell’s attorney incorrectly advised him regarding the appeal waiver, 

Stillwell was not prejudiced by his attorney’s alleged deficient performance 

because the district court did not err in calculating Stillwell’s guideline range. The 

magistrate judge also determined that an evidentiary hearing was unnecessary. 

Accordingly, the magistrate judge recommended that the district court deny the 

§ 2255 motion, as well as a certificate of appealability. 

In his objections to the R&R, Stillwell asserted that his plea was not 

knowing and voluntary because he pled guilty based on erroneous advice from his 

attorney. He also disagreed with the magistrate judge that the evidence did not 

warrant an evidentiary hearing. 

The district court overruled Stillwell’s objections and adopted the R&R. 

Specifically, the district court determined that, even if Stillwell’s counsel 

incorrectly advised him that he would be able to appeal his sentence, Stillwell’s 

own plea agreement combined with the district court’s statements during the plea 

colloquy were sufficient to inform Stillwell that such advice would have been

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erroneous. Therefore, Stillwell had failed to show that but for his attorney’s 

alleged incorrect advice, he would not have pled guilty. Because the record 

showed that Stillwell’s claim lacked merit, the district court concluded that an 

evidentiary hearing was not warranted. Accordingly, the district court denied 

Stillwell’s § 2255 motion. The district court also denied a certificate of 

appealability. 

A member of this Court subsequently granted Stillwell a certificate of 

appealability on the following issue:

Whether the district court erred in denying, without an evidentiary 

hearing, Stillwell’s claim that his counsel was ineffective when 

counsel advised him that (1) his appeal waiver would not prevent him 

from appealing his sentencing guideline calculations and (2) the 

conduct related to the two dismissed counts could not be used at 

sentencing. 

II. DISCUSSION

We review the legal issues relating to a § 2255 proceeding de novo and the 

factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th 

Cir. 2004). We review the district court’s denial of an evidentiary hearing in a 

§ 2255 proceeding for abuse of discretion. Winthrop-Redin v. United States, 767 

F.3d 1210, 1215 (11th Cir. 2014). 

A prisoner is “entitled to an evidentiary hearing if he alleges facts that, if 

true, would entitle him to relief.” Id. at 1216 (quotations omitted). However, an 

evidentiary hearing is not necessary if “the motion and the files and records of the 

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case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. 

§ 2255(b). The district court does not have to hold a hearing if the allegations are 

patently frivolous, based upon unsupported generalizations, or affirmatively 

contradicted by the record. Winthrop-Redin, 767 F.3d at 1216. 

To demonstrate ineffective assistance of counsel, a § 2255 movant must 

show that (1) counsel’s performance was deficient, falling below an objective 

standard of reasonableness, and (2) the movant suffered prejudice as a result of the 

deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). 

Prejudice requires showing “that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. There is no need to address both prongs if the movant fails 

to show either deficient performance or prejudice. Id. at 697 (“[T]here is no reason 

for a court deciding an ineffective assistance claim to approach the inquiry in the 

same order or even to address both components of the inquiry of the defendant 

makes an insufficient showing on one.”). 

We have applied the two-part Strickland test to challenges to guilty pleas 

based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58–60 

(1985). To satisfy the prejudice prong in this context, the movant must 

demonstrate “a reasonable probability that, but for counsel’s errors, he would not 

have pleaded guilty and would have insisted on going to trial.” Lee v. United 

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States, 137 S. Ct. 1958, 1965 (2017) (quotation omitted). We have explained that 

in order to be entitled to relief in such cases, the prisoner must “prove serious 

derelictions on the part of counsel sufficient to show that his plea was not, after all, 

a knowing and intelligent act.” Downs-Morgan v. United States, 765 F.2d 1534, 

1539 (11th Cir. 1985) (quoting McMann v. Richardson, 397 U.S. 759 (1970)). 

Here, the district court did not err by denying, without an evidentiary 

hearing, Stillwell’s ineffective-assistance claim because Stillwell cannot show 

prejudice. Assuming that Stillwell’s counsel performed deficiently by advising 

him that his appeal waiver would not prevent him from appealing the district 

court’s guidelines calculations and that the conduct related to Counts 2 and 3 

would not be used at sentencing, Stillwell has failed to show that, but for his 

counsel’s advice, he would not have pled guilty and would have instead insisted on 

going to trial. See id. Stated another way, Stillwell has not shown that his 

counsel’s erroneous advice rendered his guilty plea involuntary. See DownsMorgan, 765 F.2d at 1538–39. 

Stillwell’s plea agreement and the plea colloquy provided Stillwell with 

detailed and specific information pertaining to the scope of the appeal waiver and 

the conduct that would be considered at sentencing. The plea agreement advised 

Stillwell about the maximum sentence he faced, the terms of the sentence appeal 

waiver and its limited exceptions, the district court’s broad discretion in 

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sentencing, and that his conduct in Counts 2 and 3 would be considered at 

sentencing. He initialed each page and signed the agreement acknowledging that 

he understood the terms of the agreement. 

Further, during the plea colloquy, the district court explained that Stillwell 

faced a statutory maximum of 10 years’ imprisonment, that the recommendations 

in the plea agreement were not binding on the court, and that any estimate by 

counsel as to the guideline range may not be accurate. The district court also 

explained in detail that Stillwell was giving up his right to appeal, with the limited 

exceptions that he could appeal if he was sentenced above the guidelines range 

calculated by the district court or if the Government appealed. Moreover, the 

Government even summarized the facts underlying the dismissed Counts 2 and 3 

that it would prove at trial. 

Stillwell also acknowledged that he had signed and initialed his plea 

agreement and that he had no questions concerning his guilty plea. He even went 

as far as saying that, “[e]verything is clear,” when asked by the district court if he 

had any questions about what the district court had explained. Stillwell’s 

statements made under oath in open court that he understood his appellate rights 

and that the Government could prove the facts underlying Counts 2 and 3 carry a 

strong presumption of validity. Blackledge v. Allison, 431 U.S. 62, 74 (1977) 

(“Solemn declarations in open court carry a strong presumption of verity.”); see 

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also United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a 

strong presumption that the statements made during the colloquy are true.”). 

In short, Stillwell cannot establish prejudice because both the plea agreement 

and the district court informed him that he could not rely on counsel’s estimated 

sentence, that the court retained all sentencing discretion, and that the conduct in

Counts 2 and 3 would be considered at sentencing. Because the district court 

explained the sentencing and appeal-waiver provisions of the plea agreement to 

Stillwell, and Stillwell stated under oath that he understood them, any 

misunderstanding created by counsel’s advice was remedied by the district court. 

Cf. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (concluding that 

defendant failed to show prejudice because any misinformation from counsel 

regarding plea consequences was “cured” by district court’s colloquy). 

Finally, the district court did not abuse its discretion by declining to hold an 

evidentiary hearing because, as discussed above, Stillwell’s contention that he 

would not have pled guilty but for his counsel’s advice is contradicted by the 

record, namely the plea agreement and the plea colloquy. See Rosin v. United 

States, 786 F.3d 873, 879 (11th Cir. 2015) (concluding that the district court did 

not abuse its discretion by failing to hold an evidentiary hearing because the 

§ 2255 movant’s allegations of prejudice were affirmatively contradicted by the 

record). 

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III. CONCLUSION 

For the foregoing reasons, the district court’s denial of Stillwell’s § 2255 

motion, without an evidentiary hearing, is AFFIRMED.

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