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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:10cr96/LAC/EMT

3:12cv221/LAC/EMT

OSHANI TOMAR RICE

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. 56). The Government filed a response (doc. 59). 

Defendant did not file a reply, despite requesting and receiving extensions of time in which to do so

(see docs. 61–64). 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). 

PROCEDURAL BACKGROUND

Defendant was charged in a single-count indictment with possession of a firearm and

ammunition after having been convicted of one or more felony offenses (doc. 1). Defendant was

represented by Assistant Federal Public Defender Thomas S. Keith. Defendant initially elected to

proceed to trial, but during the lunch recess on the first day of trial, Defendant requested to change his

plea to guilty, and he did so (docs. 27–28). 

The plea proceeding was unremarkable. The court explained the rights Defendant was giving

up, or waiving, by entering a plea and Defendant acknowledged that he understood the court’s

explanation (doc. 50 at 5–7). Defendant admitted that the facts presented by the Government were true

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and correct (id. at 8–9), and he indicated that he understood the penalty he faced (a maximum of ten

years incarceration), as well as the fact that no one could predict the actual sentence the court would

impose (id. at 9–11). Defendant also stated that he understood that he would be bound by his plea and

would be unable to change his mind if the sentence was more or greater than he was hoping for (id.

at 11–12). Defendant acknowledged that he had not been threatened, forced, pressured, or intimidated

in any way to cause him to enter the plea and that he had sufficient time to discuss his case with

counsel prior to entering the plea (id. at 12–13). Finally, he indicated that he had no complaints with

counsel’s representation of him and no further questions of the court (id. at 13). 

A Pre-Sentence Investigation Report (“PSR”) was prepared before sentencing. The final PSR

(doc. 34) reflects that Defendant’s base offense level was 20 (PSR ¶ 20). He received a four-level

upward adjustment for possession of the firearm in connection with another felony offense (aggravated

assault with a firearm) (PSR ¶¶ 22, 23, 55) and a two-level upward adjustment for obstruction of

justice (PSR ¶ 26), and thus had a total offense level of 26 (PSR ¶ 31). Defendant had 20 criminal

history points, and his criminal history category was VI (PSR ¶ 49). The applicable guidelines range

was 120 to 150 months, but this range became 120 months due to the statutory maximum of ten-years

imprisonment (PSR ¶ 89). The defense had no objections to the PSR (doc. 33). Defendant was

sentenced on February 8, 2011, to a term of 120-months imprisonment (doc. 52 at 5). Judgment was

entered on February 15, 2011, and Defendant filed a notice of appeal (docs. 36, 38). 

On appeal, appointed counsel filed an Anders1

 brief, and the Eleventh Circuit affirmed

Defendant’s conviction and sentence (doc. 55). The instant motion to vacate was timely filed pursuant

to the prison mailbox rule2 on April 24, 2012. Defendant separates his claims into two grounds for

1 Anders v. California, 386 U.S. 738 (1967).

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

prison 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).

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relief, one of which contains multiple subparts. The Government opposes the motion in its entirety. 

LEGAL ANALYSIS

General Standard of Review

Because collateral review is not a substitute for direct appeal, 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). “Relief 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 “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). 

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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 have been brought on direct

appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Patterson, 595

F.3d, 1324, 1328 (11th Cir. 2010). The benchmark for judging a claim of ineffective assistance of

counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.

668, 686 (1984). To show a violation of his constitutional right to 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, 466 U.S. at 686; 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. 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 59. 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

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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 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,

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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 manifestly ineffective that “defeat was snatched from the 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

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allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. As noted supra, no evidentiary hearing

is needed in this case. 

Ground One

Defendant’s first contention in Ground One, which contains numerous subparts, is that trial

counsel failed to ensure that the court instructed him regarding the “interstate commerce” element of

the crime, and that counsel’s failure to do so rendered his plea involuntary and in violation of his Fifth

and Sixth Amendment rights. 

During the plea colloquy, the Assistant United States Attorney noted that the firearm (that

Defendant admitted to possessing) had been manufactured in California, and that the ammunition 

contained within it was manufactured in Arkansas (doc. 50 at 8).3

 Defendant now asserts that the

Government had no evidence to prove that he had knowledge that the firearm had been shipped or

transported in interstate commerce. Such knowledge is not required. See, e.g., United States v.

Thrasher, 569 F.2d 894, 895 (5th Cir. 1978)4 (“The law is well settled . . . that the government is not

required to prove knowledge of the interstate nexus of the firearm” in 18 U.S.C. § 922(h)(1).); United

States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997) (“We agree with the decisions from other circuits

that the § 924(a) knowledge requirement applies only to the possession element of § 922(g)(1), not

to the interstate nexus or to felon status.”); United States v. Darby, 37 F.3d 1059, 1067 (4th Cir. 1994)

(noting that “[n]umerous cases have held that criminal statutes based on the government’s interest in

regulating interstate commerce do not generally require that an offender have knowledge of the

interstate nexus of his actions,” and collecting cases). To the extent Defendant contends that he was

personally charged with shipping or transporting the firearm (see doc. 56 at 35), he is mistaken (see

doc. 1). 

Defendant also contends that counsel failed to advise him about the option of cooperating with

the Government in exchange for a lesser sentence. Defendant makes a conclusory allegation that he

could have provided “substantive information about other crimes that [he] had knowledge of in the

3 Detailed statements of facts describing the offense conduct are found in the Presentence Investigation

Report (doc. 34) and the transcript of the plea colloquy (doc. 50) and will be set forth herein only as necessary. 

4

 All cases from the former Fifth Circuit handed down by the close of business on September 30, 1981, are

binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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black community” (doc. 56 at 35). Actually, from a comment made by counsel at sentencing, it is clear

that Defendant had already begun to try to cooperate without any guarantee of a Rule 35 sentence

reduction (doc. 52 at 4). Thus, Defendant was already aware of this possibility, and counsel was not

derelict in failing to advise him as he claims (see also doc. 59-1 at 1–4 (affidavit of trial counsel,

specifically stating that prior to trial he explained the “substantial assistance process” to Defendant

and advised Defendant that he had the option of cooperating)).

Defendant next asserts that had he entered into a deal with the Government, he could have

received a sentence reduction pursuant to § 3E1.1 of the Sentencing Guidelines. Again, Defendant is

mistaken. Section 3E1.1 provides for a reduction in the offense level for an individual’s acceptance

of his personal responsibility for the charged criminal conduct, not for his cooperation against others. 

As reflected in the PSR, Defendant failed to accept responsibility (PSR ¶¶ 18, 28). Furthermore, his

plea, which was entered only after the commencement of trial, did not allow the Government to “avoid

preparing for trial” or permit the Government and the court “to allocate their resources efficiently.” 

See U.S.S.G. § 3E1.1(b). Finally, as suggested by the Government, Defendant apparently entered a

plea only after jury selection and learning that the “victim of his aggravated assault was going to come

in and tell the truth” at trial (see doc. 52 at 4). 

Defendant next appears to assert that if he cooperated with the Government, he would not have

received the additional sentencing enhancements for obstruction of justice and using the firearm in

connection with another felony. These claims are spurious. The PSR sets forth partial transcripts of

telephone conversations Defendant had while he was at the jail with his wife, his girlfriend (the victim

of the aforementioned aggravated assault), and another woman, in which Defendant encouraged the

women not to cooperate so he could “beat the case” (PSR ¶¶ 7–12). Similarly, the circumstances

outlining the battery and aggravated assault charges are outlined in the PSR, and clearly support the

application of the adjustment even if, likely at Defendant’s behest, the victim declined to cooperate

with state prosecutors (PSR ¶¶ 54, 55). To the extent he asserts counsel was ineffective for failing

to challenge these enhancements, he is not entitled to relief. Counsel is not constitutionally ineffective

for his failure to make a frivolous objection. Freeman v. Attorney General, Florida, 536 F.3d 1225,

1233 (11th Cir. 2008); see also Lattimore v. United States, 345 F. App’x 506, 508 (11th Cir. 2009).

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Finally, Defendant contends that counsel failed to recognize and object to the use of his

“unqualifying state prior convictions” in calculating his criminal history (doc. 56 at 38). Defendant

contends that he should not have had any points assessed for his prior state court convictions, and as

such his criminal history category should have been I rather than VI. There is no factual or legal basis

for this position. Defendant’s suggestion that prior state convictions can only be considered if they

are crimes of violence is mistaken. Section 4A1.1 of the Sentencing Guidelines sets forth how points

are assessed for a defendant’s prior convictions, and it is the length of the sentence imposed, not the

nature of the underlying offense that is key. Similarly, there is no requirement that a defendant be

“certified as a recidivist” in order for the court to consider past convictions in calculating his criminal

history. Defendant has not shown that any of his 20 criminal history points were improperly scored,

and counsel was not constitutionally ineffective for his failure to challenge the criminal history

calculation. See Freeman, Lattimore, supra.

Ground Two

Defendant contends that counsel failed to consult with him about challenging the voluntariness

of his plea on direct appeal. Defendant claims that he “instructed counsel to appeal his conviction and

sentence, but he neglected to do so,” and he seeks leave to file an out-of-time appeal (doc. 56 at 5). 

Defendant’s assertion that counsel failed to file an appeal is false (see docs. 38, 55), and he is not

entitled to relief. 

Additionally, the court notes that Defendant’s assertion that his guilty plea was involuntary is

squarely refuted by the record of the plea proceeding. An allegation of a coerced plea, supported by

a factual allegation, can support a §2255 motion. See Fontaine v. United States, 411 U.S. 213, 214–15

(1973); United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). However, a defendant’s

statements during a Rule 11 colloquy, as well as any findings made by the judge accepting the plea,

constitute a formidable barrier in any subsequent collateral proceedings. Blackledge v. Allison, 431

U.S. 63, 73–74 (1977); cf. Holmes v. United States, 876 F.2d 1545, 1550 (11th Cir. 1989) (trial court

satisfied itself during Rule 11 colloquy of voluntary and understanding nature of plea). Solemn

declarations made under oath in open court carry a strong presumption of verity. Blackledge, 431 U.S.

at 73–74; United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Defendant has not suggested

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a valid reason why the court should discredit the statements he made under oath at the plea

proceedings (or the trial court’s findings made in accepting Defendant’s plea). 

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

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.

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. 56) be DENIED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 3rd day of March 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

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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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