Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:10cr43/MCR/CJK

3:14cv64/MCR/CJK

ERNEST MALLETY

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, 

or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 519). The 

Government has filed a response (ECF No. 537) and Defendant has filed a reply.

(ECF No. 551). The case was referred to the undersigned for the issuance of all 

preliminary orders and any recommendations to the district court regarding 

dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and 

Fed. R. Civ. P. 72(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 and that the § 2255 motion should be denied. 

See Rules Governing Section 2255 Cases 8(a) and (b). 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 1 of 27
Page 2 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

PROCEDURAL BACKGROUND

Defendant Ernest Mallety and eleven others were charged in a four-count 

indictment with drug and weapons offenses. Defendant was charged with 

conspiracy to possess with intent to distribute five kilograms or more of cocaine 

and 50 grams or more of cocaine base (“Count One”), conspiracy to use a 

communications facility to facilitate the commission of a felony (“Count Two”), 

and using and carrying a firearm in furtherance of a drug trafficking crime (“Count 

Three”).

1 (ECF No. 69).

Defendant alone exercised his right to a jury trial, represented by retained 

counsel James Barnes. By special verdict, the jury found him guilty of conspiracy 

to distribute or possess with intent to distribute five kilograms or more of cocaine, 

guilty as charged in Count Two, and guilty of possession of a firearm in furtherance 

of a drug-trafficking crime. (ECF No. 271). 

Defendant’s Presentence Investigation Report (“PSR”) described him as “the 

primary courier” who transported cocaine from Houston, Texas, to Pensacola, 

Florida, for distribution by others. (ECF No. 33, PSR ¶ 17). Mallety in turn 

transported drug proceeds back to Houston, Texas. The PSR referenced wire 

 

1 Defendant was not charged in Count Four of the indictment.

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 2 of 27
Page 3 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

intercepts in which Defendant can be overheard telling co-defendant Kevin Mallety 

to give him a gun, and during the debriefings it was determined that Defendant 

always had a firearm with him. (ECF No. 330, PSR ¶ 141). Defendant was held 

accountable for 234.79 kilograms of cocaine. (ECF No. 330, PSR ¶ 142). Both 

his base offense level and his total offense level were 38. (ECF No. 330, PSR ¶¶

151-160). Defendant, who was 60 years old at the time his PSR was prepared, had 

no criminal history until the age of 43, and none that afforded him any criminal 

history points, so his criminal history category was I. (ECF No. 330, PSR ¶¶ 163-

171). The applicable guidelines range as to Count One was 235 to 293 months; 

the guidelines sentence for Count Two was 48 months and Count Three required a 

five-year consecutive sentence by statute. (ECF No. 330, PSR ¶¶ 208, 210). A 

psychiatric evaluation was completed prior to sentencing by the Department of 

Veterans Affairs. (ECF No. 409). The court sentenced Defendant to a total term 

of 235 months, which consisted of 175 months as to Count One and 48 months as 

to Count Two, to run concurrently, followed by a consecutive term of 60 months 

on Count Three. (ECF Nos. 420, 421, 456). 

Defendant appealed, and the Eleventh Circuit affirmed his conviction and 

sentence, remanding for the correction of a clerical error in the judgment. (ECF 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 3 of 27
Page 4 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

Nos. 490, 493). Defendant timely filed the instant § 2255 motion, represented by 

attorney William Kent, raising two claims of ineffective assistance of trial counsel. 

The Government opposes the motion. 

ANALYSIS

General Standard of Review

Collateral review is not a substitute for direct appeal, and therefore 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 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. See 28 U.S.C. ' 2255(a); McKay v. United States, 657 

F.3d 1190, 1194 n.8 (11th Cir. 2011). ARelief 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). The Afundamental miscarriage of justice@

exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 4 of 27
Page 5 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

it must be shown that the alleged constitutional violation Ahas probably resulted in 

the conviction of one who is actually innocent . . . .@ 

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. 

Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United 

States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 

1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). 

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 (1963) (Aidentical 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@). 

Furthermore, a motion to vacate under section 2255 is not a substitute for 

direct appeal, and issues which could have been raised on direct appeal are generally 

not actionable in a section 2255 motion and will be considered procedurally barred. 

Lynn, 365 F.3d at 1234-35; Bousley v. United States, 523 U.S. 614, 621 (1998); 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 5 of 27
Page 6 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is 

A>available= on direct appeal when its merits can be reviewed without further factual 

development.@ Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). 

Absent a showing that the ground of error was unavailable on direct appeal, a court 

may not consider the ground in a section 2255 motion unless the defendant 

establishes (1) cause for not raising the ground on direct appeal, and (2) actual 

prejudice resulting from the alleged error, that is, alternatively, that he is Aactually 

innocent.@ Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). 

To show cause for procedural default, a defendant must show that Asome objective 

factor external to the defense prevented [him] or his counsel from raising his claims 

on direct appeal and that this factor cannot be fairly attributable to [defendant=s] 

own conduct.@ Lynn, 365 F.3d at 1235. A meritorious claim of ineffective 

assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

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 

(2003); see also United States v. Franklin, 694 F.3d, 1, 8 (11th Cir. 2012); United 

States v. Campo, Case 14-15541; 2016 WL 6518520 n.5 (11th Cir. Nov. 1, 2016). 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 6 of 27
Page 7 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

In order to prevail on a constitutional claim of ineffective assistance of counsel, a 

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 (1984); Williams v. 

Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 

(11th Cir. 2013). Strickland=s two-part test also applies to guilty pleas. Lafler v. 

Cooper, 132 S. Ct. 1376, 1384 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 

(1985)). A defendant will be required to show that but for counsel=s errors, he 

would not have pleaded guilty and would have instead insisted on proceeding to 

trial. Id. at 1384-85 (quoting Hill, 474 U.S. at 59). A defendant=s Aafter the fact 

testimony concerning his desire to plead, without more, is insufficient to establish@

prejudice. Pericles v. United States, 567 F. App=x 776, 782 (11th Cir. 2014) 

(quoting Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)); Rosin v. United 

States, 786 F.3d 873 (11th Cir. 2015). A defendant must Aconvince the court that 

a decision to reject the plea bargain would have been rational under the 

circumstances.@ Padilla v. Kentucky, 559 U.S. 356, 372 (2010). The Sixth 

Amendment right to the effective assistance of counsel extends specifically Ato the

negotiation and consideration of plea offers that lapse or are rejected.@ In re Perez, 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 7 of 27
Page 8 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

682 F.3d 930, 932 (11th Cir. 2012) (citing Missouri v. Frye, BBB U.S. BBBB, 132 S.

Ct. 1399 (2012); Lafler v. Cooper, BBB U.S. BBBB, 132 S. Ct. 1376 (2012)). A 

defendant who claims that ineffective advice led him to reject a plea offer must 

show that but for ineffective assistance of counsel, he would have accepted the plea, 

and that the conviction or sentence or both under the terms of the plea offer would 

have been less severe than under the judgment and sentence that were imposed. 

Lafler, 132 S. Ct. at 1385. A defendant=s insistence that he is innocent is a 

Arelevant consideration@ that Amakes it more difficult to accept his claim@ that he 

would have agreed to a plea deal. See Osley v. United States, 751 F.3d 1214, 

1224-25 (11th Cir. 2014). In applying Strickland, the court may dispose of an 

ineffective assistance claim if a defendant fails to carry his burden on either of the 

two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 

1326 (11th Cir. 2013); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) 

(A[T]he court need not address the performance prong if the defendant cannot meet 

the prejudice prong, or vice versa.@).

In determining whether counsel=s conduct was deficient, this court must, with 

much deference, consider Awhether counsel=s assistance was reasonable considering 

all the circumstances.@ Strickland, 466 U.S. at 688; see also Dingle v. Sec=y for 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 8 of 27
Page 9 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

Dep=t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to 

examine counsel=s performance in a highly deferential manner and Amust indulge a 

strong presumption that counsel=s conduct fell within the wide range of reasonable 

professional assistance.@ Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) 

(quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 

1305, 1315-16 (11th Cir. 2000) (discussing presumption of reasonableness of 

counsel=s conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) 

(emphasizing that petitioner was Anot 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. To show 

counsel=s performance was unreasonable, a defendant must establish that Ano 

competent counsel would have taken the action that his counsel did take.@ Gordon 

v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); 

Chandler, 218 F.3d at 1315. “[T]he fact that a particular defense ultimately proved 

to be unsuccessful [does not] demonstrate ineffectiveness.” Chandler, 218 F.3d at 

1314. When reviewing the performance of an experienced trial counsel, the 

presumption that counsel=s conduct was reasonable is even stronger, because 

A[e]xperience is due some respect.@ Id., at 1316 n.18.

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 9 of 27
Page 10 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

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. AThe likelihood of a different result 

must be substantial, not just conceivable.@ Harrington v. Richter, 562 U.S. 86, 112 

(2011) (quoting Strickland). For the court to focus merely on Aoutcome 

determination,@ however, is insufficient; A[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 (1993); Allen v. Sec=y, Fla. Dep=t of Corr., 611 F.3d 

740, 754 (11th Cir. 2010). A defendant therefore must establish Athat 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, a 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 (2001). A significant increase in 

sentence is not required to establish prejudice, as Aany amount of actual jail time 

has Sixth Amendment significance.@ Id. at 203.

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 10 of 27
Page 11 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

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. 1987). Bare, conclusory allegations of ineffective 

assistance are insufficient to satisfy the Strickland test. See Boyd v. Comm=r, Ala. 

Dep=t of Corr., 697 F.3d 1320, 1333-34 (11th Cir. 2012); Garcia v. United States, 

456 F. App=x 804, 807 (11th Cir. 2012) (citing Yeck v. Goodwin, 985 F.2d 538, 

542 (11th Cir. 1993)); 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 v. Allison, 431 U.S. 63, 74 (1977)).

Finally, the Eleventh Circuit has recognized that given the principles and 

presumptions set forth above, Athe cases in which habeas petitioners can properly 

prevail . . . are few and far between.@ Chandler, 218 F.3d at 1313. 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. Dingle, 480 F.3d at 

1099; Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). AEven if 

counsel=s decision appears to have been unwise in retrospect, the decision will be 

held to have been ineffective assistance only if it was >so patently unreasonable that 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 11 of 27
Page 12 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

no competent attorney would have chosen it.=@ Dingle, 480 F.3d at 1099 (quoting

Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)). The Sixth Circuit 

has framed the question as not whether counsel was inadequate, but rather whether 

counsel=s performance was so manifestly ineffective that Adefeat was snatched from 

the hands of probable victory.@ United States v. Morrow, 977 F.2d 222, 229 (6th

Cir. 1992). Regardless of how the standard is framed, under the prevailing case 

law it is abundantly clear that a moving defendant has a high hurdle to overcome to 

establish a violation of his constitutional rights based on his attorney=s performance. 

A defendant=s belief that a certain course of action that counsel failed to take might 

have helped his case does not direct a finding that counsel was constitutionally 

ineffective under the standards set forth above. 

An evidentiary hearing is unnecessary when Athe motion and files and records 

conclusively show that the prisoner is entitled to no relief.@ See 28 U.S.C. '

2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); Gordon v. 

United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of 

ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 

F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). 

To be entitled to a hearing, a defendant must allege facts that, if true would prove 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 12 of 27
Page 13 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th

Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations 

unsupported by specifics, or contentions that are wholly unsupported by the record. 

See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) 

(explaining that Aa district court need not hold a hearing if the allegations [in a '

2255 motion] are . . . based upon unsupported generalizations@) (internal quotation 

marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even 

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

a hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal 

issues can be resolved by the court without a hearing. 

Ground One

Defendant first contends that trial counsel was constitutionally ineffective 

when he failed to make a “timely and specific” objection to improper opinion 

testimony by Special Agent Sonya Bryant. Defendant maintains that had counsel 

objected and the court struck the testimony or not allowed it, the court “cannot be 

confident beyond a reasonable doubt” that the verdict would have been the same.

Special Agent Bryant, the case agent in this case, was the first Government 

witness to testify and was ultimately recalled multiple times. During her initial 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 13 of 27
Page 14 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

testimony she noted that she had been a special agent with the Drug Enforcement 

Administration (“DEA”) for over nineteen years, and had been involved in well 

over 500 narcotics investigations. (ECF No. 452 at 20). A DEA investigation 

utilizing confidential sources, video surveillance, and a Title III wire intercept led 

her to Defendant Mallety. (ECF No. 452 at 21). Special Agent Bryant testified 

briefly about terminology and the general economics and practices of the cocaine 

trade. 

The Government later recalled Bryant to provide the specifics of the 

investigation involving Defendant Mallety and the conspiracy charged in this case.

(ECF No. 452 at 62-84, 90-106; ECF No. 448 at 10-14, 29-36; 44-56). Special 

Agent Bryant testified about wiretap intercepts and the parameters within which 

law enforcement may listen to the phone calls of individuals who are under 

investigation. (ECF No. 452 at 62-66). During her testimony, Agent Bryant was 

asked to interpret, based on her training and experience, the contents of various 

conversations between Defendant and others. After an objection by the defense, 

the Government tendered her as an expert in the area of drug distribution, 

terminology and distribution chains. (ECF No. 452 at 71). Defense counsel 

objected, but declined to voir dire, and the court designated Special Agent Bryant 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 14 of 27
Page 15 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

as an expert. Special Agent Bryant testified, for instance, that the remark “I have 

about 10 or 12 of them” was referring to ounces of cocaine, as were other numerical 

references by the conspirators, whereas a “half” referred to a half kilogram of 

cocaine and “nickels” and “dimes” to much smaller amounts. (See, e.g., ECF No. 

452 at 71, 93, 96, 98, 101; ECF No. 448 at 31, 49, 51, 53). Sandwich bags and 

wrap, according to Special Agent Bryant’s training and experience, are used in the 

drug trade to store drugs and money. (ECF No. 452 at 100). A comment that 

“It’s already measured out when they got it and all they have to do is pass it out to 

their customers” means that the cocaine is already packaged for resale. (ECF No. 

452 at 103). Special Agent Bryant testified about shorthand for prices whereas 

Defendant’s statement that he needs a dollar and a co-defendant’s counter about 95 

or 85 actually refers to $1,000 or $950 or $850. (ECF No. 448 at 10). She 

declined to accept defense counsel’s invitation to interpret a conversation about a 

phone charger as actually being about cocaine. (ECF No. 452 at 79-80).

During the second day of testimony, the Government asked Special Agent 

Bryant to explain what it meant when a co-defendant asked Defendant Mallety if 

“they got the change,” and she explained that the question referred to whether law 

enforcement had seized all of the money during the traffic stop. Defendant stated 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 15 of 27
Page 16 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

during the same conversation that he had tried to let the road cool off a little bit 

“cause the man, them DEAs was out bad, man.” (ECF No. 448 at 47). Special 

Agent Bryant explained that Defendant wanted to slow down the amount of times 

he was traveling because drug interdiction enforcement was out on the highways.

(ECF No. 448 at 47). At this point, the court asked counsel to approach the bench.

During the ensuing bench conference, the court stated:

I’m getting a little concerned about the testimony from her as an expert 

to some of this. Some of this the jury doesn’t need an expert to 

interpret it for them. If it is related to drug trafficking and terms such 

as “bricks” and how they made reference to, you know, street 

vernacular for drugs, then that’s one thing, but some of this I think is 

going beyond that.

(ECF No. 448 at 47-48). Assistant United States Attorney Goldberg explained 

that this was the reason that he did not qualify her as an expert, because she could 

give a lay opinion on most of the topics of questioning. Defense counsel stated 

that he “was going to object to the explanation,” but he never did, either before, 

during, or after the bench conference. (ECF NO. 490 at 7 n.2). The court 

interjected that it was the fact that Special Agent Bryant was “giving her opinion of 

the import of their conversation” that may not have been proper. The court agreed 

that the question regarding laying off and letting “the road cool down a bit” was 

proper, but noted that there were “a couple of things earlier” that were not things 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 16 of 27
Page 17 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

the jury could not have interpreted alone based on lay knowledge. (ECF No. 448 

at 48). 

Defendant notes that he argued on appeal that it was plain error to admit this 

testimony. The issue was subject to plain error review because trial counsel had 

not made an appropriate and timely objection. The Eleventh Circuit found it did 

not meet the plain error standard, and Defendant now suggests that counsel was 

constitutionally ineffective because, had he objected, the outcome of the 

proceedings would have been different. The argument is not persuasive. 

To the extent Special Agent Bryant’s testimony was in the vein of expert 

testimony, interpreting words or conversations related to the drug trade that the 

jurors, as lay people, presumably would not have understood, there was no error 

and counsel was not constitutionally ineffective for failing to object. If her 

testimony was opinion testimony, not necessary for a lay person’s understanding of 

the evidence, Defendant still has not established prejudice. The court instructed 

the jury regarding the weight to give expert testimony immediately after Special 

Agent Bryant was tendered as an expert. (ECF No. 452 at 72). The court told 

the jurors that such witnesses are permitted to give opinions, but cautioned them 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 17 of 27
Page 18 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

that merely because such a witness has expressed an opinion, does not mean that 

the jury must accept the opinion. 

Furthermore, as noted by the Eleventh Circuit on direct appeal in this case, 

experienced drug agents may testify as experts to help a jury understand the 

significance of certain conduct or methods of operation unique to the drug 

distribution business. (ECF No. 490 at 9, quoting United States v. Garcia, 447 

F.3d 1327, 1335 (11th Cir. 2006)). The court acknowledged that, although 

permitted, “such expert testimony may unfairly provide the Government with an 

additional summation by having the expert interpret the evidence and may come 

dangerously close to invading the province of the jury.” (ECF No. 490 at 10, 

quoting United States v. Emmanuel, 565 F.3d 1324, 1335-36 (11th Cir. 2009)). 

The appellate court found no plain error in the district court’s failure to exclude any 

of Special Agent Bryant’s testimony. The court noted that her opinion about 

specific terms, such as numbers was appropriate expert testimony, and that her 

factual observation that co-defendants Hull and Jones were using Mallety to 

transport cocaine was merely that, a factual observation that did not go to the 

ultimate issue of whether Mallety had agreed to be part of a conspiracy. Finally, 

the court agreed with Defendant that Special Agent Bryant at times interpreted the 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 18 of 27
Page 19 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

meaning of entire conversations rather than specific terms. Nonetheless, it found 

that in light of the volume and nature of the evidence presented at trial, the 

testimony did not affect Defendant’s substantial rights. The court recited the 

evidence against Mallety as including the testimony of numerous co-conspirators, 

including Mallety’s own son, and recorded conversations between Mallety and 

numerous co-defendants in which Defendant himself discussed cocaine and 

described both driving from Texas to Florida and his efforts to avoid the police and 

federal agents. (ECF No. 490 at 12). Because of the abundance of evidence in 

the case, it concluded that Special Agent Bryant’s testimony as to the meaning of 

the conversations was not essential to Mallety’s conviction. (ECF No. 490 at 13, 

citing Emmanuel, 565 F.3d at 1336). 

For the same reason, the undersigned concludes that counsel’s failure to 

object to the testimony in question was not constitutionally ineffective within the 

meaning of Strickland. See Emmanuel, 565 F.3d at 1326 (“the jury could have 

easily interpreted the recorded conversations as involving drugs based on other 

evidence in the case, including actual seizures of drugs and drug money and 

testimony from coconspirators”). Special Agent Bryant’s testimony was not 

essential to Defendant’s conviction, and Defendant has not shown that the outcome 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 19 of 27
Page 20 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

of the proceedings would have been different had counsel objected thereto. He is 

not entitled to relief. 

Ground Two

In his second ground for relief, Defendant contends he was denied effective 

assistance of counsel due to trial counsel’s failure, prior to trial, to adequately 

review and explain the operation of the federal sentencing guidelines and 

“substantial assistance.” Had counsel done this, Defendant contends that he 

would not have taken his case to trial, but would have pleaded guilty and accepted 

responsibility, thus leading to a less severe sentence.

Defendant notes that the Government tendered a proposed plea agreement 

which offered him the opportunity to plead guilty in exchange for the Government’s 

possible filing of a substantial assistance motion. Defendant refers to the 

substantial assistance provision of 18 U.S.C. § 3553(e). Whether he would have 

been able to avail himself of this provision is questionable, however, as he might 

have been in the position of the “last man standing,” with no ability to cooperate 

against any of the co-conspirators who had already entered pleas of guilty. 

Defendant maintains that even if he did not receive a substantial assistance motion, 

he would, at minimum, have received a three-level reduction for acceptance of 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 20 of 27
Page 21 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

responsibility. Mallety further takes the position that the court’s sua sponte 

exercise of sentencing discretion establishes that the court would have imposed a 

sentence no greater than the fifteen-year minimum mandatory, comprised of ten 

years on Count One and five years on Count Three, rather than the total sentence of 

235 months that he received.

2

Even assuming for sake of argument that Defendant is correct that his 

sentence would have been lower if he had entered a guilty plea, he has not met his 

burden of showing prejudice because he has not shown that he would have entered 

a guilty plea. Lafler, 132 S. Ct. at 1385. The undersigned on a regular basis 

conducts change of plea hearings on referral from district judges. As the 

undersigned regularly advises defendants, the judges in the Northern District of 

Florida do not accept pleas of nolo contendere. As a result, a defendant wishing 

to change a plea must, as a precondition to the court accepting a guilty plea, admit 

his or her guilt of the conduct giving rise to the charges. The record does not 

 

2 Defendant also asserts as part of his claim that counsel did not visit or speak with him between the time of the 

guilty verdict and the time he filed objections to the PSR. (ECF No. 519 at 14; ECF No. 551 at 5). This fact, 

even if true, is irrelevant to his claim that counsel did not discuss the guidelines with him before trial. To the 

extent that Defendant makes a separate ineffective assistance of counsel claim based on this omission, he has not 

shown prejudice.

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 21 of 27
Page 22 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

support Defendant’s belated and conclusory assertion that he would have been 

willing to do this. 

The Government has submitted the affidavit of Defendant’s retained attorney

James R. Barnes in conjunction with its response to the § 2255 motion. (ECF No. 

537-4). From Mr. Barnes’ affidavit, it is abundantly clear that Defendant 

Mallety’s desire to proceed to trial was paramount. This desire was fueled by 

Defendant’s belief, despite Barnes’ advice and counsel to the contrary, that the 

Government could not secure a conviction in a “dry case,” that is, when it had not 

found any drugs on his person. Mallety also believed that the “children,” meaning 

the other, much younger co-conspirators including his own son, would not testify 

against him, and as such a jury would not convict him. Defendant told counsel at

their first meeting that he had no problem with counsel representing him as long as 

counsel knew Defendant would “take [his] case all the way to trial,” and during one 

meeting he threatened to fire his attorney if counsel persisted in trying to “talk [him]

into” pleading guilty. (ECF No. 537-5 at 2-3). On one occasion, counsel brought 

attorney Gene Mitchell, who was representing Mallety’s son, to the jail with him. 

Mitchell expressly told Mallety that Mallety’s son was preparing to testify for the 

Government and against him at trial. Even with this information, Defendant 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 22 of 27
Page 23 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

rejected attorney Mitchell’s gratuitous counsel that Defendant should plead guilty. 

Attorney Barnes concluded his affidavit by stating that it was his “strong personal 

opinion and belief that there was nothing I nor anyone else could do that would ever 

change Mr. Mallety’s desire to go to a trial,” and that he likewise believed that his 

client “understood the evidence against him and the basic workings of the federal 

guidelines, and specifically, acceptance of responsibility.” (ECF No. 537-5 at 4). 

Furthermore, Defendant’s conduct throughout the proceedings was 

inconsistent with that of someone willing to admit his conduct and accept 

responsibility, such that the court would have accepted his guilty plea. For 

instance, Defendant noted in court outside the presence of the jury that he did not 

want to send co-coconspirators “to prison for the rest of their life for something that 

I know I didn’t do.” (See ECF No. 448 at 8). His attorney also told the court that 

his client had “maintained his innocence” and still did so after trial. (ECF No. 489 

at 4). This statement is corroborated by the PSR, which noted that Defendant 

proceeded to trial and maintained his innocence throughout. (ECF No. 330, PSR 

¶ 146). 

Additionally, when Defendant had the opportunity to speak at sentencing, he 

said that the witnesses against him “lied, lied, lied.” (ECF No. 456 at 12). 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 23 of 27
Page 24 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

Defendant Mallety stated that, as his wife had told the court, he had “never been in 

it,” and that he got in this trouble because of his nephew or his helping people. 

(ECF No. 456 at 13). As he appeared to be denying knowledge of what the 

“children” had done, the court reminded Defendant that his voice had been on the 

audio recordings that the jury heard. (ECF No. 456 at 14). Mallety again stated 

that “[his] son and them got up there and lied.” (ECF No. 456 at 14-15, 15-16). 

Finally, Defendant’s belief in his innocence was so strong that he attempted to 

recover money damages in the amount of $1,800,000 per day for his unlawful 

incarceration and false imprisonment, as well as immediate release. (See ECF No. 

537-3). In the response to the petition, the Government characterizes Defendant’s 

claim that he would have considered entering a guilty plea, to aid the Government, 

as “stretch[ing] the bounds of credibility.” (ECF No. 537 at 10). In light of the 

record as a whole, the Government’s characterization is not exaggerated. See

Osley v. United States, 751 F.3d 1214, 1224-25 (11th Cir. 2014).

Defendant’s suggestion that his desire to plead guilty would have been 

influenced by an understanding of the guidelines and the sentence he faced at trial 

is similarly unpersuasive. As defendants are routinely told when pleading guilty, 

no one, neither their attorneys nor the court nor the Government, can foretell what 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 24 of 27
Page 25 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

their sentence will be after entering a guilty plea. Thus, any ballpark estimate of 

a sentence would have been similar regardless of whether he entered a plea of guilty 

or went to trial, except with respect to substantial assistance and the possibility of 

cooperation. Counsel’s affidavit reflects that he explained the sentencing 

guidelines to Defendant, including the benefit of an adjustment for “acceptance of 

responsibility.” (ECF No. 537-4 at 3). A review of the record taken as a whole 

demonstrates that Defendant has not shown a violation of the standards set forth in 

Strickland and its progeny, and he is not entitled to relief.

Conclusion

For all of the foregoing reasons, the court finds that Defendant has failed to 

show that any of the claims raised in his motion to vacate, set aside, or correct 

sentence pursuant to 28 U.S.C. § 2255 have merit. Nor has he shown that an 

evidentiary hearing is warranted. Therefore Defendant’s motion should be denied 

in its entirety.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that 

“[t]he district court must issue or deny a certificate of appealability when it enters 

a final order adverse to the applicant,” and if a certificate is issued “the court must 

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 25 of 27
Page 26 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues 

a certificate of appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the 

denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 

483-84 (2000) (explaining how to satisfy this showing) (citation omitted). 

Therefore, it is also recommended that the court deny a certificate of appealability 

in its final order. 

The second sentence of Rule 11(a) provides: “Before entering the final order, 

the court may direct the parties to submit arguments on whether a certificate should 

issue.” If there is an objection to this recommendation by either party, that party 

may bring this argument to the attention of the district judge in the objections 

permitted to this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

1. The motion to vacate, set aside, or correct sentence (ECF No. 519) be 

DENIED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 4th day of January, 2017.

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 26 of 27
Page 27 of 27

Case Nos.: 3:10cr43/MCR/CJK; 3:14cv64/MCR/CJK

/s/ Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be 

filed within fourteen (14) 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. If a party fails to object to the magistrate judge's 

findings or recommendations as to any particular claim or issue contained in 

a report and recommendation, that party waives the right to challenge on 

appeal the district court's order based on the unobjected-to factual and legal 

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

Case 3:10-cr-00043-MCR-CJK Document 640 Filed 01/04/17 Page 27 of 27