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Cases No. 4:10cr39-RH/CAS and 4:14cv82-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 4:10cr39-RH/CAS

4:14cv82-RH/CAS

LAWRENCE BERRY, JR.,

Defendant.

_______________________________/

ORDER DENYING THE § 2255 MOTION

The defendant Lawrence Berry, Jr. has moved under 28 U.S.C. § 2255 for 

relief from his judgment of conviction. This order denies the motion.

The background is this. An investigation turned up evidence that Mr. Berry 

was the source of multiple kilograms of cocaine that were being distributed into

Tallahassee. Officers executed a search warrant at an apartment where Mr. Berry 

and two others were present. Mr. Berry had a key to the apartment. Officers found 

730 grams of cocaine, a digital scale, over $15,000 in cash, and, on the mantle over 

the fireplace, an assault rifle. 

A jury convicted Mr. Berry on four charges: conspiracy to distribute or 

possess with intent to distribute 500 grams or more of cocaine; possessing with 

intent to distribute 500 grams or more of cocaine; possessing a firearm in 

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furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and 

possessing a firearm and ammunition as a convicted felon. 

Because Mr. Berry had a prior drug felony conviction, the minimum 

sentence on the drug counts was 10 years. The 924(c) conviction required a 

minimum consecutive sentence of 5 years. The minimum overall sentence thus was 

15 years. Mr. Berry received the minimum sentence: 15 years or, in the language 

of federal sentences, 180 months. On direct appeal, the Eleventh Circuit upheld the 

conviction and sentence.

Mr. Berry’s § 2255 motion challenges the conviction and sentence on 

multiple grounds. The motion is before the court on the magistrate judge’s report 

and recommendation, ECF No. 160. The recommendation is to deny the motion. 

Mr. Berry obtained an extension of the deadline for filing objections, but the 

deadline has passed, and no objections have been filed. The report and 

recommendation is correct and is adopted as the court’s opinion, with these 

additional notes.

The jury explicitly found that Mr. Berry’s drug offenses involved 500 grams 

of cocaine or more. The minimum sentence for such an offense was 10 years if the 

defendant had a prior “felony drug offense.” See 21 U.S.C. § 841(b)(1)(B). Mr. 

Berry had a prior Florida state-court conviction of sale of marijuana. He committed 

the offense at age 16, but he was convicted as an adult. The offense was a felony. 

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And so it was a “felony drug offense.” Mr. Berry lost the contrary contention on 

direct appeal, see ECF No. 117, and is not entitled to relitigate the issue under 

§ 2255. And in any event, the ruling was correct. Mr. Berry’s citation of cases 

dealing with entirely different issues—the meaning of “aggravated felony” under 

the Immigration and Nationality Act or the meaning of “violent felony” under the 

Armed Career Criminal Act, 18 U.S.C. § 924(e), and the method for determining 

whether a conviction meets those definitions—misses the point entirely. Mr. Berry 

received the minimum permissible sentence and has no grounds for any complaint 

about the sentence.

Mr. Berry asserts his attorney rendered ineffective assistance by failing to 

advise him to accept an alleged plea offer under which the government would have 

abandoned the 924(c) count with its 5-year consecutive sentence. As accurately set 

out in the report and recommendation, the consistent practice of the United States 

Attorney in this district was not to bargain on matters of this kind. In more than 20 

years of presiding over cases like this in this district, I have never once heard of a 

plea offer to drop a 924(c) charge or to reduce or limit a sentence. Mr. Berry does 

not and could not reasonably claim personal knowledge that there was any such 

offer. He has proffered nothing suggesting that at an evidentiary hearing, he could 

present evidence that any such offer was ever made. He is not entitled to relief or 

even to an evidentiary hearing on this claim.

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Mr. Berry asserts his attorney was ineffective in various respects at trial, but 

all of this constitutes Monday-morning quarterbacking. As accurately set out in the 

report and recommendation, none of the alleged errors affected the verdict. Mr. 

Berry lost because of the substantial evidence of his guilt, not because of anything 

his attorney did or did not do.

For these reasons and those set out a greater length in the report and 

recommendation, Mr. Berry is not entitled to relief.

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that 

reasonable jurists could debate whether (or, for that matter, agree 

that) the petition should have been resolved in a different manner 

or that the issues presented were “adequate to deserve 

encouragement to proceed further.”

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529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to 

obtain a certificate of appealability when dismissal is based on procedural grounds, 

a petitioner must show, “at least, that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right and 

that jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Id. at 484. 

Mr. Barry has not made the required showing. This order thus denies a 

certificate of appealability. 

IT IS ORDERED: 

1. The clerk must enter a judgment stating, “The defendant’s motion for

relief under 28 U.S.C. § 2255 is denied."

2. A certificate of appealability is denied.

SO ORDERED on March 13, 2017. 

s/Robert L. Hinkle 

United States District Judge 

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