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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. Case Nos. 5:10cr39/RS/CJK

5:12cv217RS/CJK

PASCUAL MONTOR TORRES

_____________________________/

REPORT AND RECOMMENDATION

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

set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 356). The

Government has filed a response (doc. 364) and Defendant has filed a reply (doc.

372). 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). 

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PROCEDURAL BACKGROUND1

Defendant was charged in a single count of an eleven count indictment with

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

and more than five hundred grams of methamphetamine (doc. 74). The investigation

that led to the indictment of Defendant and six other individuals was extensive, and

wiretaps of a co-defendant’s phone revealed that the drug trafficking organization

was moving over one hundred pounds of methamphetamine and kilogram quantities

of cocaine from Mexico into the Northern District of Florida and Southern District

of Alabama. Defendant and one other alleged coconspirator proceeded to trial. The

evidence at trial was limited primarily to a cocaine delivery in May of 2010, to

Defendant’s possession of a cell phone used during intercepted conversationsrelated

to the cocaine delivery, to surveillance and the execution of a search warrant at

Defendant’s residence and a drug stash house. The jury found Defendant guilty of

conspiring or possess with intent to distribute five kilograms or more of cocaine.

2

The final Presentence Investigation Report (“PSR”) attributed eleven kilograms

of cocaine to Defendant, corresponding to a base offense level of 32 (doc. 231, PSR

¶¶ 86, 91). There being no adjustments, Defendant’s total offense level was also 32. 

3

Detailed statements of facts describing the offense conduct are set forth in the Presentence

1

Investigation Report (doc. 231), and will be set forth herein only as necessary. 

The jury was not asked to consider methamphetamine. 2

The initial PSR recommended holding Defendant accountable for 21 kilograms of cocaine 3

and 2.592 kilograms of methamphetamine, which would have resulted in an offense level of 34 and

a sentencing range of 151 to 188 months (doc. 210, PSR ¶¶ 86, 91, 122). After objection by the

defense, the PSR was revised to reflect a reduced amount of cocaine and no methamphetamine was

attributed to Defendant.

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Defendant’s criminal history category wasI, and the applicable guidelinesrange was

121 to 151 months imprisonment (PSR ¶¶ 104, 122)

The court sentenced Defendant at the midpoint ofthe guidelinesrange to a term

of 136 months imprisonment (doc. 251).

Defendant appealed his conviction and sentence, making four assertions of

error. Defendant argued that the district court erred by (1) admitting translated

transcripts of wiretapped phone calls that had taken place in Spanish, (2) denying his

motion for a judgement of acquittal because the proof offered at trial was insufficient

to establish his identity, (3) denying his motion for a mistrial, and (4) sentencing him

based upon the quantity of drugs found by the jury (doc. 330 at 4). The Eleventh

Circuit affirmed (id. at 11). 

In the present motion, Defendant separates his claims into four grounds for

relief, but essentially claims that both trial and appellate counsel were constitutionally

ineffective. 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

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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

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

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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

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). 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).

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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

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

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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 “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

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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

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,

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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 assertsthat counsel wasineffective at the pre-trial stages for failing

to investigate, failing to interview witnesses, failing to adequately prepare for trial,

and failing to file a motion to dismiss or suppress. Defendant offers no factual

support for these conclusory assertions, and they are, accordingly, insufficient to

establish any constitutional violation. Defendant also contendsthat counsel only met

with Defendant five or six times before trial for a total of an hour, and that he was

unable to understand the Spanish-speaking translator that counsel brought with him.

Defendant does not claim to have contemporaneously advised counsel of this

problem.

To counter the vague allegations set forth by Defendant, counsel’s declaration

has detailed the pretrial communications he conducted with Defendant about the case. 

Counsel agrees he consulted with Defendant on approximately six occasions at the

Bay County Jail, but explains that he spent at least an hour each time with his client

(doc. 364 at 18). According to counsel, during this discussions, Defendant was

reluctant to advise counsel of his role (or lack thereof) in the offense. Defendant was

unable to identify any witnesses who could exonerate him except for an individual

who was deported to Mexico at the time of his arrest and was therefore no longer

available. Defendant maintained to counsel that he was not and never had been

known as Catcheton orChubby Cheeks, and that he had purchased the phone that was

seized from him at the time of his arrest from the deported Mexican. Defendant

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offered no witnessesto the phone purchase. Despite thorough questioning,Defendant

offered no other explanation about his role in the case or potential witnesses who

could support his version of events. Therefore, the theory of defense–based upon

what Mr. Torres told his lawyer– was that Defendant was in innocent possession of

the cell phone bearing the number matching the intercepted calls used against him at

trial, that he was not the individual known as “Catcheton,” and that he was not a

member of the conspiracy charged in the indictment. Counsel also notes that the

testimony of Government witnesses revealed that Defendant was conspicuously

absent during significant times of the conspiracy. 

With respect to the interpreter, counsel noted that Ms. Sadler was a capable,

dependable and trustworthy interpreter who has served the courts of the Northern

District of Florida as well as state courts in Northern Florida (doc. 364 at 18). 

Defense counsel does not mention his client raising any concerns about being able to

understand Ms. Sadler. Defendant’s suggestion in the reply brief that the Spanish

spoken by an individual from the Caribbean would be virtually incomprehensible to

a Mexican Spanish-speaker is not credible, given the complete lack of any

contemporaneous complaint to that effect. And, to the extent Torres claims that Ms.

Sadler’s interpretation of counsel’s remarks resulted in his not understanding the

Government’s plea offer, as amplified below, nothing before the court supports the

existence of any “plea offer” for the translator to convey. 

Defendant has offered only conclusory assertions in support of his claim and

assuch he has not shown that counsel’s performance was constitutionally ineffective

with respect to his pre-trial investigation and actions. No basis for relief on this

ground appears. 

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Ground Two

Defendant next contendsthat counsel was constitutionally ineffective because

he failed to put on witnesses and to conduct a vigorous cross-examination of the

Government witnesses. Despite the seriousness of such a claim, Defendant fails to

identify in his motion any witnesses whom he believes counsel should have called

whose testimony could have altered the outcome of this case. Similarly, he does not

identify the alleged deficiencies in counsel’s cross-examination of the unspecified

Government witnesses.4

In his reply, Defendant belatedly offers the names of two witnesses he claims

to have asked counsel to call. As a general rule, “[w]hich witnesses, if any, to call,

and when to call them, is the epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess.” Cuthbert v. United States, 296 F. App’x 904, 906

(11th Cir. 2008) (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en

banc )). Although counsel denies in his affidavit that Mr. Torres mentioned any

useful witnesses, the undersigned, solely to avoid any suggestion of a meaningful

factual conflict, will consider the witnesses Defendant now says he presented to

defense counsel. The first claimed witness is Manuel Pineda, a contractor and

owner of the Mexican restaurant where Defendant was arrested. Defendant claims

that Pineda could have testified that he did not recognize the voice on the recorded

conversation to be that of Defendant. Although Defendant representsthat this would

have been Pineda’s testimony, he has not provided an affidavit or statement from

Defendant’s assertion that counsel failed to ask Defendant about his “side of the story” was 4

adequately addressed in the previous ground for relief and warrants no further discussion.

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Pineda evincing a willingness to testify or that Pineda would testify as Defendant

would like. 

Defendant also maintains that he told his attorney to interview and call as a

witness co-defendant Martin Ramirez, who allegedly would have testified that

Defendant was not involved in the conspiracy or any of the individual transactions. 

Again, Defendant has not made any showing that Ramirez would have been willing

to testify as he represents. The record, on the other hand, suggeststhat Ramirez could

not have provided such exculpatory testimony. The facts as set forth in Ramirez’s

PSR indicate that Ramirez had direct dealings with Defendant during the course of

the conspiracy, and thus any exculpatory testimonywould have been in direct conflict

with these facts (doc. 212 at ¶¶ 76, 79). Because Ramirez had already pleaded guilty

and was awaiting sentencing at the time of Defendant’s trial (see docs. 152–154;

157), it is improbable that Ramirez would have been willing to risk increasing his

own sentencing exposure to offer the purportedly exculpatory testimony. Defendant

offers no credible showing, or even such facts as would support an inference, that

testimony from Ramirez, even assuming Ramirez would agree to testify, would have

made a difference in the trial. 

Defendant has not shown that counsel’s performance was constitutionally

insufficient, and he is not entitled to relief on his second claim. 

Ground Three

Defendant contends that counsel was ineffective at sentencing in that he

“abandoned] the Defendant at the PSI” and he never met with Defendant to review

the PSR or determine if Defendant had any objections. 

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The first portion of Defendant’s claim appearsto be that counsel did not object

to the PSR. This claim, to put it kindly, butts up against the reality of the actual

record. As noted above, counsel made objections in Defendant’s behalf prior to

sentencing, as a result of which the PSR wasrevised, resulting in a two level decrease

in Defendant’s offense level. 

At sentencing, counsel continued to advocate on Mr. Torres’ behalf. Having

already gained a reduction in Defendant’s offense level as a result of the presentencing objections, defense counsel held fast in his argument that his clientshould

be held accountable for a lesser drug weight (doc. 304 at 4). Counsel conceded that

the defense could not “in good faith” argue that Defendant was entitled to a minor or

minimal role adjustment, but urged that, considering the duration and scope of the

conspiracy, Defendantshould receive a low-end guidelinessentence due to his lesser

culpability (id. at 5–6). Finally counsel asked the court to consider Defendant’s

limited education, impoverished background and knee injury in imposing sentence

(id. at 7). 

In his affidavit, defense counsel does not specifically rebut Defendant’s

assertion that counsel never met with him to discuss the PSR or asked whether

Defendant had objections, stating only that the “record atsentencing speaks for itself”

(doc. 364 at 19). The record reflects that when asked at sentencing whether he had

sufficient time to review the PSR with his client, counsel answered in the affirmative

(doc. 304 at 4). The court did not inquire directly of Defendant, but, contrary to

Defendant’s suggestion, Federal Rule of Criminal Procedure 32(i)(1)(A) does not

expressly require that a separate inquiry be made of both counsel and the defendant. 

Pursuant to this rule, the sentencing court is only tasked with verifying that the

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defendant and the defendant’s attorney have read and discussed the PSR. In any

event, Defendant has not identified any viable objections to the PSR that would have

changed the outcome of sentencing. Any further argument for a minimal or minor

role adjustment would have been fruitless, because, despite counsel’s arguments

regarding Defendant’s relative culpability, the court’s sentence fell in the middle of

the advisory guidelines range. 

Defendant has notshown either deficient performance or prejudice with respect

to counsel’s handling of the PSR, and he is not entitled to relief. 

As part of the third claim for relief, Defendant also argues that counsel failed

to advise of the Government’s plea offer and of the strength of the Government’s

case. The Sixth Amendment right to the effective assistance of counsel extends

specifically “to the negotiation and consideration of plea offers that lapse or are

rejected.” In re Perez, 682 F.3d 930, 932 (11th Cir.2012) (citing Missouri v. Frye,

––– U.S. ––––, 132 S.Ct. 1399 (2012); Lafler v. Cooper, –––U.S. ––––, 132 S.Ct.

1376 (2012)). A defendant who raises a claim of ineffective assistance of counsel

with respect to 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 judgement and

sentence that were imposed. Lafler, 132 S.Ct. at 1385. All defense counsel of this

bar, as well as the undersigned, fully know that the United States Attorney’s office

in this District does not engage in “plea negotiations” per se, and as such Defendant,

who was charged in a single count of the indictment, would not have received any

offer other than a “straight up” guilty plea. Mr. Torres has never identified the

substance of the purported plea offer, nor has he stated that he would have been

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willing to enter a plea. As such Defendant has not met his burden, and he is not

entitled to relief.5

Ground Four

Leaving no stone unturned, Mr. Torres contends that counsel was

constitutionally ineffective on appeal. According to Defendant, counsel ignored

stronger issues and pursued issues that were frivolous. Consistent with his custom

on the previous three grounds, Defendant has not identified the issues that he

maintains counsel should have pursued. Even if he had done so, the Sixth

Amendment does not require appellate advocates to raise every non-frivolous issue

on appeal if counsel, as a matter of professional judgment, decides not to do so. 

Smith v. Robbins, 528 U.S. 259, 287–88 (2000); Knowles v. Mirzayance, 556 U.S.

111, 126–127 (2009); Jones v. Barnes, 463 U.S. 745, 751–52 (1983); Heath v. Jones,

941 F.2d 1126, 1130–31 (11th Cir. 1991). One may bring a Strickland claim based

on counsel’s failure to raise a particular claim, but it is difficult to demonstrate in

such a situation that counsel’s performance was constitutionally ineffective. Smith,

528 U.S. at 288 (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (“Generally,

only when ignored issues are clearly stronger than those presented, will the

presumption of effective assistance of counsel be overcome”)); see also Payne v.

United States, 566 F.3d 1276, 1277 (11th Cir. 2009) (citing Smith). “Experienced

advocatessince time beyond memory have emphasized the importance of winnowing

out weaker arguments on appeal and focusing on one central issue if possible, or at

The court also notes that entering a guilty plea would have required Defendant to admit his 5

guilt of the charges. This is contrary to what appears to have been Defendant’s consistent position,

expressed even as recently as in his reply to the Government’s response to his § 2255 motion, that

he was “not involved in the conspiracy” (doc. 372 at 2).

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most on a few key issues.” Barnes, 463 U.S. at 751–52. In fact, this is the “hallmark

of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986). The

mere fact that one of the non-appealed issues might have been successful does not

preclude a finding that the counsel’s performance, which must be judged in its

entirety, was effective. Id.; Heath, 941 F.2d at 1131 (counsel’s appellate advocacy

must be judged in its entirety); Reutter v. Secretary for Dept. of Corrections, 232 F.

App’x 914, 917 (11th Cir. 2007) (citing Heath). Defendant has not shown that

appellate counsel’s performance was constitutionally deficient.

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

evidentiaryhearing is warranted. Accordingly, 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

Case Nos.: 5:10cr39/RS/CJK; 5:12cv217/RS/CJK

Case 5:10-cr-00039-RH-EMT Document 387 Filed 10/28/14 Page 16 of 17
Page 17 of 17

(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 amended motion to vacate, set aside, or correct sentence (doc. 356) be

DENIED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 28th day of October, 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).

Case Nos.: 5:10cr39/RS/CJK; 5:12cv217/RS/CJK

Case 5:10-cr-00039-RH-EMT Document 387 Filed 10/28/14 Page 17 of 17