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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos. 3:10cr47/LAC/CJK

3:12cv584/LAC/CJK

JESUS CLARK-CASTANEDA

_____________________________/

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. (Doc. 183). The Government has

filed a response (doc. 187) and Defendant has filed a reply. (Doc. 189). 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 isthe 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). 

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PROCEDURAL BACKGROUND1

Defendant and four others were charged in a two count superseding indictment

with (1) conspiracy to distribute and possess with intent to distribute five kilograms

or more of cocaine, and (2) possession with intent to distribute 500 grams or more of

cocaine. (Doc. 40). Defendant and co-defendant Gutierrez together sold multiple

kilograms of cocaine to individuals in Fort Walton and Pensacola in 2009 and 2010. 

Defendant pleaded guilty on July 12, 2010, represented by retained counsel Glenn M.

Swiatek. (Doc. 175). There was no written plea agreement, and in fact, Defendant

did not enter his plea until after a jury had been selected. (Doc. 175 at 6, 15). 

A Presentence Investigation Report (“PSR”) was prepared for sentencing. In

the original version ofthe PSR, Defendant was held accountable for 17.285 kilograms

of cocaine, corresponding to a base offense level of 34. (Doc. 103, Draft PSR ¶ 48). 

There were no adjustments and Defendant’s criminal history category was I. (Id. at

¶¶ 49–57, 61). Defendant filed no objections. An addendum to the final version of

the PSR reflects that the Government conceded that the drug weight attributable to

a co-defendant was less than 15 kilograms and the probation office made a similar

adjustment in Defendant’s case, thusreducing his base and total offense levelsto 32. 

(Doc. 127, Final PSR ¶¶ 48, 57, 101). The applicable guidelinesimprisonment range

was 121 to 151 months. 

The defense filed no written objections to either version of the PSR. At

sentencing, when queried about objections, counsel noted that his client was

“certainly less culpable than anybody else.” (Doc. 176 at 2). Counsel also stated that

Detailed statements of facts describing the offense conduct are set forth in the final PSR 1

(doc. 127) and will be set forth herein only as necessary. 

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he was “arguing for a deduction based on the quantity of cocaine that is attributed to

him.” (Id. at 3). The Government asked for a continuance for the defense to put its

objections in writing, at which point counsel clarified that the defense was prepared

to stipulate to Defendant’s accountability for the same quantity of cocaine attributed

to co-defendant Gutierrez. (Id. at 4). After the parties clarified that the drug amount

was not the 17.285 kilograms set forth in the draft PSR, but between five and fifteen

kilograms as set forth in the addendum, the defense agreed to that stipulation. (Id. at

4–5). Counsel again argued that Defendant was less culpable than other defendants

in the case. In addition, he noted that the reason Defendant did not qualify for the

safety valve was because Defendant chose not to cooperate due to concern about

putting his and his family’s lives in jeopardy. (Id. at 5–6). Counsel’s comparison of

his client’s situation to the circumstances of co-defendant Gutierrez, whom counsel

believed to be the ringleader, was unavailing, as the court noted that Gutierrez had

received credit for acceptance while Defendant had not. (Id. at 7). In response, the

2

Government noted that its reading ofthe PSR suggested that Defendant and Gutierrez

were equally culpable, and further, that the perceived threat to Defendant and his

family was a result of his own actions. (Id. at 7). The court sentenced Defendant to

a term of 136 months imprisonment, at the mid-point of the advisory guidelines

range. (Id. at 8). 

Defendant filed a pro se notice of appeal. (Doc. 141). The Eleventh Circuit

dismissed his appeal for want of prosecution, but later reinstated it and allowed

counsel to withdraw. (Docs. 156, 164, 167). Attorney Elaine Mittleman raised a

The PSR reflects that Defendant did not receive an acceptance of responsibility adjustment 2

due both to the timing of his plea, after jury selection, and his failure to discuss the facts of the case

with the probation officer during his interview. (Doc. 127, Final PSR ¶ 45).

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single issue in Defendant’s behalf on appeal, arguing that his within-guidelines

sentence wassubstantively unreasonable due to disparities with the 48 to 180 months

sentences received by his co-defendants. (Doc. 178). The Eleventh Circuit found

that Defendant was not similarly situated to co-defendant Gutierrez, with whom

Defendant attempted to compare himself, found no abuse of discretion with respect

to the sentence imposed, and affirmed Defendant’s sentence. (Id.)

In the present motion, Defendant claims that counsel was constitutionally

ineffective in myriad respects. The Government opposes the motion in its entirety. 

LEGAL 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 maximumauthorized 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). “Relief under 28 U.S.C. § 2255 ‘is reserved for

transgressions of constitutionalrights 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 “fundamental miscarriage of justice” exception

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

shown that the alleged constitutional violation “has probably resulted in the

conviction of one who is actually innocent . . . .” 

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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. 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 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) (“identical 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 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); 

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

“‘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 “actually

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 “some objective factor

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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). 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)). 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) (“[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 “whether counsel’s assistance was reasonable considering

all the circumstances.” Strickland, 466 U.S. at 688;see also Dingle v. Sec’y for Dep’t

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

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counsel’s performance in a highly deferential manner and “must 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 “not entitled to error-free representation”). 

Counsel’s performance must be evaluated with a high degree of deference and

without the distorting effects of hindsight. Strickland, 466 U.S. at 689. 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.” Gordon

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

218 F.3d at 1315. When examining the performance of an experienced trial counsel,

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

“[e]xperience is due some respect.” Chandler, 218 F.3d at 1316 n.18.

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. “The 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 “outcome determination,”

however, is insufficient; “[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.

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2010). A defendant therefore must establish “that 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 “any amount of actual jail time has Sixth Amendment significance.” Id.

at 203.

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, “the 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.

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Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). “Even 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 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)). 

An evidentiary hearing is unnecessary when “the 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 (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 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. Peoples v. Campbell, 377

F.3d 1208, 1237 (11th Cir. 2004); Tejada, 941 F.2d at 1559; Holmes v. United States,

876 F.2d 1545, 1553 (11th Cir. 1989) (citations omitted). Likewise, affidavits that

amount to nothing more than conclusory allegations do not warrant a hearing. Lynn,

365 F.3d at 1239.

Defendant’s Ineffective assistance of counsel claims

3

Defendant first claims, in paragraph 17 of his memorandum, that he was

coerced into a plea agreement that he would not otherwise have accepted. As noted

Defendant’s claims are not clearly delineated. As such, they will be addressed in the order 3

set forth in his memorandum, identified by the paragraph number in which they are mentioned.

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above, there was no plea agreement. Additionally, Defendant’s conclusory assertion

that he was “coerced” into entering a guilty plea is contradicted by the transcript of

the plea colloquy. The court specifically asked Defendant whether he had been

“forced or threatened or promised or pressured or intimidated in any way” to enter a

guilty plea, and Defendant responded that he had not. (Doc. 175 at 15). The court

is confident that Defendant, through his interpreter, understood the question, because

at one point when he did not understand a question, Defendant did not hesitate in

making his confusion known to the court. (Id. at 13). 

A defendant’s statements during a Rule 11 colloquy as well as any findings

made by the judge accepting the pleas constitute a formidable barrier in any

subsequent collateral proceedings. Blackledge v. Allison, 431 U.S. 63, 73–74 (1977);

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

This is because solemn declarations made under oath in open court carry a strong

presumption of verity. Blackledge, 431 U.S. at 73–74; Connolly v. United States, 568

F. App’x 770, 771 (11th Cir. 2014) (citing Blackledge); Garces v. U.S. Att’y Gen.,

611 F.3d 1337, 1349 (11th Cir. 2010) (citing Blackledge). They are presumptively

trustworthy and are considered conclusive absent compelling evidence showing

otherwise; the subsequent presentation of conclusory and contradictory allegations,

just as Defendant presents in this case, does not suffice. Blackledge, 431 U.S. at

73–74; Winthrop-Redin, 767 F.3d at 1216. Such allegations are subject to summary

dismissal. Winthrop-Redin, 767 F.3d at 1216 (citing Blackledge, 431 U.S. at 74). As

such, Defendant is not entitled to relief on this claim.

In paragraph 18, Defendant makes generalized assertions that defense counsel

was substantially unprepared and uninformed throughout the case, and that the

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multiple errors and miscalculations resulted in a sentence that was “substantially

higher than other similarly situated defendants.” Defendant offers no specific

allegations of error that would support a finding of constitutional ineffectiveness. In

addition, the Eleventh Circuit considered, and rejected, a claim of sentencing

disparity on direct appeal, and assuch, this claim cannot be re-litigated herein. (Doc.

178). Defendant has not shown that relief is warranted on this claim. 

Defendant next asserts, in paragraphs 19 and 20, that counsel failed to handle

the matters of drug quantity and Defendant’s role in the offense in a constitutionally

acceptable manner. For instance, he faults counsel for not filing a formal objection

to either the quantity of drugs attributed to him, or to the probation officer’s

determination that Defendant was not entitled to a role reduction. Again, Defendant’s

assertions are conclusory. The facts as set forth in the PSR do not support a finding

that Defendant played only a minor role in the offense conduct or that the quantity of

cocaine ultimately attributed to him was overstated. Despite Defendant’s assertion

that “[t]here existed credible evidence” to support his position, he does not identify

any evidence that was furnished or made known to his attorney that would have

provided a basis for either argument. Furthermore, in pleading guilty, Defendant

specifically admitted under oath that he had been involved with in excess of five

kilograms of cocaine. (Doc. 175 at 11–12). Absent even a scintilla of record support

for Defendant’s assertions, he has not established that counsel was constitutionally

ineffective in this respect. 

In paragraph 21, Defendant states that he requested that defense counsel

request a “‘Fast Track’ four point reduction in accordance with the United States

Directive allowing for this reduction for qualifying deportees.” The Government

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notes that Defendant was not charged with an immigration offense in this case, and

that he cannot show that a “Fast Track” program for illegal aliens convicted of drug

trafficking offenses exists or existed in the Northern District of Florida. See United

States v. Gomez,358 F. App’x 53 (11th Cir. 2009) (“Congress created the fast-track

program as a way to alleviate the growing pressure on the judicial system created by

the increasing number of illegal reentry cases in certain districts.”) (citing United

States v. Arevalo-Juarez, 464 F.3d 1246, 1251 (11th Cir. 2006)). Defendant was not

entitled to relief under such a program, and counsel was not constitutionally

ineffective for her failure to make such a request. 

In Defendant’s reply, he does not attempt to rebut the Government’s position

that he is not entitled to relief on the aforementioned claims. Rather, he raises a new

claimof ineffective assistance of counsel , asserting that counsel was constitutionally

ineffective because he did not ensure that Defendant receive acceptance of

responsibility as part of his plea agreement. (Doc. 189). There is no basis for relief

on this claim. There was no plea agreement, Defendant did not plead guilty until after

jury selection, and he declined to speak to the probation officer about his role in the

offense. To the extent Defendant asserts an “entitlement” to the two-point acceptance

reduction, he is mistaken. The commentary to U.S.S.G. § 3E1.1 clearly providesthat

a defendant who enters a guilty plea is not entitled to an adjustment under thissection

as a matter of right. U.S.S.G. § 3E1.1, comment. (n.3). Therefore, under the

circumstances of this case, counsel was not constitutionally ineffective for not

pursuing an acceptance of responsibility adjustment for his client, and Defendant

is not entitled to relief. 

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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 isissued “the court must 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 (doc. 183) be DENIED.

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2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 7th day of July, 2015.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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.

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