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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos. 3:10cr53/MCR/CJK

3:12cv447/MCR/CJK

CORDERRIUS TERRELLE HUNT

_____________________________/

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. 62). The Government has

filed a response (doc. 73) and Defendant has filed a reply (doc. 75). 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). 

PROCEDURAL BACKGROUND

Defendant was charged in a single count indictment with possession of a

firearm by a convicted felon (doc. 1). Defendant’s appointed counsel Albert Oram

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moved to dismiss the indictment, claiming that the statute underwhich Defendant was

charged, 18 U.S.C. § 922(g), violated the CommerceClause and was unconstitutional

on its face (doc. 20). The court denied Defendant’s motion, noting that the argument

was foreclosed by binding circuit precedent (doc. 22). Shortly thereafter, Defendant

entered a plea of guilty pursuant to a written plea agreement and statement of facts

(docs. 25, 26, 52). Defendant reserved the right to appeal the court’s ruling on his

motion to dismiss the indictment (doc. 25 at 2). 

The Presentence Investigation Report (“PSR”) calculated Defendant’s Total

Offense Level at 29 and his Criminal History Category at VI, yielding an advisory

guidelines range of 151 to 188 months (doc. 33, PSR ¶¶ 17–27, 45, 74). The

guidelines range became 120 months due to the application of a statutory maximum

sentence (PSR ¶ 74). 

The court sentenced Defendant to a term of 120 months imprisonment (doc.

40). Defendant appealed, challenging the constitutionality of 18 U.S.C. § 922(g)(1). 

The Eleventh Circuit rejected his argument and affirmed (doc. 50), and the Supreme

Court denied certiorari on June 13, 2011 (doc. 61). Defendant filed his motion to

vacate pursuant to the prison mailbox rule on September 17, 2012 (doc. 62 at 6). As 1

his lone ground for relief, Defendant claims that his conviction should be vacated

because he did not have a prior felony conviction at the time of his conviction in the

A pro se inmate’s pleading is deemed filed at the time it is placed in the prison mailbox or delivered to prison

1

authorities for mailing. See Houston v. Lack, 487 U.S. 266 (1988) (holding that a pro se inmate’s notice of appeal was

filed as of the time he placed it in the prison mailbox, thus creating the “prison mailbox rule”); Williams v. McNeil, 557

F.3d 1287, 1290 n.2 (11th Cir. 2009) (under the ‘prison mailbox rule,’ a pro se prisoner's court filing is deemed filed

on the date it is delivered to prison authorities for mailing); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.

2001) (absent evidence to the contrary, court assumes that a pro se petition is delivered to prison authorities for mailing

the date it was signed). Although the Government did not raise the issue, Defendant’s motion is facially untimely under

28 U.S.C. § 2255(f).

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instant case, and therefore the evidence was insufficient to sustain his conviction. 

The Government opposes the motion.

LEGAL ANALYSIS

General Standard of Review

Collateralreview 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 . . . .” 

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 direct appeal,

it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d

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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 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); 

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

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

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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)). 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 “after the fact testimony concerning his desire to

plead, without more, isinsufficient to establish” prejudice. Pericles v. United States,

Case No. 12-14505, 2014 WL 2198514 (11th Cir. May 28, 2014) (quoting Diaz v.

United States, 930 F.2d 832, 835 (11th Cir. 1991)). 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).

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 review

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

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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. 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. 2010). 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

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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.

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)). The Sixth Circuit has framed the question as not

whether counsel was inadequate, but rather whether counsel’s performance was so

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manifestly ineffective that “defeat wassnatched fromthe hands of probable victory.” 

United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992).

Although section 2255 mandates that the court conduct an evidentiary hearing

“unless the motion and files and records conclusively show that the prisoner is

entitled to no relief,” a defendant must support his allegations with at least a proffer

of some credible supporting evidence. See Chandler v. McDonough, 471 F.3d 1360,

1363 (11th Cir. 2006) (citing Drew v. Dep’t of Corr., 297 F.3d 1278, 1293 (11th Cir.

2002) (referring to “our clear precedent establishing that such allegations are not

enough to warrant an evidentiary hearing in the absence of any specific factual proffer

or evidentiary support”); Hill v. Moore, 175 F.3d 915, 922 (11th Cir. 1999) (“To be

entitled to an evidentiary hearing on this matter [an ineffective assistance of counsel

claim], petitioner must proffer evidence that, if true, would entitle him to relief.”));

Ferguson v. United States, 699 F.2d 1071, 1072 (11th Cir. 1983). 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.

Ground One

Defendant’s first, and only, claim in his motion, that he is entitled to relief

because the evidence wasinsufficient to support his guilty plea issquarely foreclosed

by circuit precedent. “A guilty plea, since it admits all the elements of a formal

criminal charge, waives all non-jurisdictional defects in the proceedings against a

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defendant.” United States v. Brown, Case No. 13-10023, 2014 WL 2200395 (11th

Cir. May 28, 2014) (quoting United States v. Fairchild, 803 F.2d 1121, 1124 (11th

Cir.1986) (quoting United States v. Jackson, 659 F.2d 73, 74 (5th Cir.1981));see also

United States v. Patti, 337 F.3d 1317, 1320 (11th Cir.2003) (“Generally, a voluntary,

unconditional guilty plea waives all non-jurisdictional defects in the proceedings.”). 

A challenge to the sufficiency of the evidence is non-jurisdictional, and thus any such

challenge is waived. United States v. Ternus, 598 F.3d 1251, 1254 (11th Cir. 2010). 

Thus, he is not entitled to relief.

Defendant’s Traverse

In his traverse, Defendant claims for the first time that he was denied

constitutionally effective counsel because counsel “promised him that if he pled

guilty he would receive a 7 year sentence” (doc. 75 at 5). Defendant asserts that

counsel “induced” himinto pleading guilty, such that Defendant wassentenced to the

term of imprisonment he was trying to avoid (id.).

This claim affords Defendant no relief. First, the claim is clearly untimely and

does not relate back to the claim raised in his initial motion. See Mayle v. Felix, 545

U.S. 644, 650 (2005) (An amended habeas petition, “does not relate back (and

thereby escape AEDPA's one-year time limit), when it asserts a new ground for relief

supported by facts that differ in both time and type from those the original pleading

set forth). The fact that the alleged errors arose from the same trial and conviction is

insufficient. Id. 

Second, Defendant’s claim that he was “promised” a particular sentence is

refuted by the transcript of the plea colloquy (doc. 52). The district court told

Defendant in no uncertain terms that no one could predict the sentence that he would

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receive, that his sentence could be anywhere from zero years to ten years, and that he

would not be able to withdraw his guilty plea if he was unhappy about his sentence

(id. at 19–20). Defendant indicated that he understood. The Supreme Court has

stated that a defendant's representations at a plea hearing “constitute a formidable

barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63,

73–74 (1977). This is because “[s]olemn declarations in open court carry a strong

presumption of verity,” and the subsequent presentation of conclusory allegations,

such as those presented by Defendant in this case, is insufficient to garner relief. Id.

at 74. 

Conclusion

For the foregoing reasons, the court finds that Defendant has not shown that

he is entitled to relief under § 2255 or even an evidentiary hearing on his claims. 

Defendant’s motion should be denied in its entirety.

Certificate of Appealability

Section 2255 Rule 11(a) 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 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. § 2255 11(b).

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.

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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. 62) be DENIED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 25th day of June, 2014.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen 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. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th

Cir. 1988).

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