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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.: 3:11cr13/MCR/EMT

3:12cv254/MCR/EMT

JAMES N. BROWN 

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s Second Amended Motion to Vacate, Set

Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and supporting memorandum of law (docs.

366, 367), as well as the Government’s response in opposition to the motion (doc. 371). This 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 BACKGROUND1

Defendant was charged in one count of a two-count indictment with conspiracy to possess and

distribute pseudoephedrine with knowledge that it would be used to manufacture methamphetamine

(doc. 3). He entered a guilty plea pursuant to a written plea agreement and statement of facts on March

11, 2011 (docs. 138, 139). The factual summary, which was signed by Defendant and his attorney

1

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

Report, the transcripts of the guilty plea and sentencing hearings, and other documents (see docs. 139, 249, 333, 369,

370), and will not be set forth herein unless necessary to the resolution of Defendant’s claims. 

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Spyro Kypreos, stated in relevant part that during the time frame charged in the indictment, Defendant

worked alongside several co-defendants to purchase pseudoephedrine from area pharmacies in order

to manufacture the pseudoephedrine into methamphetamine (doc. 139). Defendant and others traveled

to pharmacies to purchase the pseudoephedrine so it could be “pooled” for the manufacturing process

(id.). Defendant was aware that the pseudoephedrine would be and was used to manufacture

methamphetamine, as that was the purpose of the ongoing conspiracy, and he personally purchased in

excess of forty (40) boxes of pseudoephedrine in order to further the criminal venture (id.).

The Presentence Investigation Report (“PSR”) was disclosed to the defense on April 22, 2011

(doc. 186 ). Defendant was held accountable for at least 100 grams but less than 300 grams of

pseudoephedrine (doc. 186, Draft PSR, ¶ 121). He was assessed a two-level upward adjustment

because the offense involved a hazardous or toxic substance and another two-level upward adjustment

for obstruction of justice (Draft PSR, ¶¶ 122, 125). After a three-level downward adjustment for

acceptance of responsibility due to his timely guilty plea, Defendant’s total offense level was 33

(Draft PSR, ¶¶ 127, 130). Defendant’s criminal history category was V, and the applicable advisory

guidelines range was 210 to 240 months in light of the application of a statutory maximum term of

imprisonment (Draft PSR, ¶¶ 146, 196). 

Defendant filed a response to the PSR in which he did not contest the total amount of drugs

attributable to him (although he did object to the use of certain statements against him) (doc. 215). 

Defendant objected to the obstruction adjustment and the omission from the PSR of the fact that his

mental and emotional condition, as set forth in both the PSR and the response thereto, could warrant

a downward departure (id.). The Government filed a response in which it opined that the sentencing

guidelines range was properly calculated (doc. 216). A final PSR made editorial corrections that did

not affect the applicable guidelines range (doc. 227). 

Defendant was sentenced on June 9, 2011 to a term of 210-months imprisonment (see doc.

239). Less than one week later, the court entered an order indicating that it would resentence

Defendant due to errors in his criminal history (doc. 246). The Second Revised Final PSR reflected

that Defendant’s criminal history category was IV and that the applicable guidelines range was 188

to 235 months (doc. 249, Second Final PSR ¶¶ 146, 196). On June 21, 2011, the court sentenced

Defendant at the low end of this range to a term of 188-months imprisonment (see docs. 254, 262). 

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Defendant did not appeal. In the present motion, Defendant raises ineffective assistance of

counsel claims, which he has separated into three grounds for relief. 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 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”). 

Because a motion to vacate under section 2255 is not a substitute for direct appeal, 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,

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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 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); 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 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

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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, a 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, ___, 131 S.Ct. 770, 792 (2011) (citing 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. 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

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(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 first contends he was denied effective assistance of counsel when counsel failed

to object to the Government’s “breach” of the plea agreement. Defendant asserts that both counsel and

the Government promised him that his base offense level would be no more than Level 26 (see doc.

367 at 6–7), yet he was sentenced at Level 32.

During the plea colloquy, the court explained to Defendant that he faced a term of up to 20

years in custody, and he indicated that he understood (doc. 333 at 45).2 The court explained generally

about how the sentencing guidelines worked, and that “no one here in the courtroom today is going to

be able to tell you what your guideline range is before you enter your guilty plea” (id. at 48). It went

on to state more than once that no one could tell any defendant what his or her sentence would be

because the sentence did not have to be within the applicable guideline range (id. at 48–50). After

explaining that a substantial assistance motion was not guaranteed, the court noted that the plea

agreement specifically stated that what was contained in the document was the only agreement that

Defendant had with the Government (id. at 52). It then advised that anyone for whom that was not the

case, or who believed that they had an agreement with the Government that was not reflected in the

document, needed to speak up and let the court know at that time (id. at 52–53). The record indicates

silence from the Defendant. After the Government explained the facts it was prepared to prove at trial,

the court explained to Defendant that the Government was not tied to the minimum amount of drug

weight reflected in the statement of facts (id. at 55–56). The Government noted that most of the

answers to the court’s questions were silence, understood as consent, and requested that the court

inquire if any defendant had any further questions or objections (id. at 58). The court again addressed

the defendants as a group and asked whether anyone had any questions or objections, or needed

clarification or more time to confer with counsel (id.). Defendant’s counsel clarified on the record

that he had advised Defendant that the factual statement contained an admission that “pooling” of the

pseudoephedrine occurred and that they would not know the weights of the drugs attributed to

2 The court simultaneously conducted a plea colloquy for seven defendants in this case. Hence, Defendant’s

affirmative response is reflected in the response of “all Defendants.” 

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Defendant until he received the PSR (id. at 62–63). The court stated that if a particular individual’s

plea agreement contained a reference to traveling to pharmacies and pooling the chemicals that was

not factually accurate, the individual should not have signed the plea agreement (id. at 63). After a

brief recess, the court inquired specifically of each defendant, including Defendant James N. Brown,

whether he or she was satisfied with the factual summary and wished to proceed with the plea (id. at

64). Defendant indicated that he was satisfied, and Defendant then entered a plea of guilty (id. at 64,

67–68). 

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); Winthrop-Redin v. United States, 767 F.3d 1210

(11th Cir. 2014) (citing Blackledge). 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 does not suffice. Blackledge, 431 U.S. at 73–74; Winthrop-Redin, 767 F.3d

at 1216. In fact, such allegations are subject to summary dismissal. Winthrop-Redin, 767 F.3d at

1216 (citing Blackledge, 431 U.S. at 74). A defendant “bears a heavy burden to show his statements

[under oath] were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988); United States

v. Green, 275 F. App’x 941 (11th Cir. 2008); United States v. Cardenas, 230 F. App’x. 933 (11th Cir.

2007). “[I]f the Rule 11 plea taking procedure is careful and detailed, the defendant will not later be

heard to contend that he swore falsely.” United States v. Stitzer, 785 F.2d 1506, 1514 n.4 (11th Cir.

1986) (quoting United States v. Barrett, 514 F.2d 1241, 1243 (5th Cir. 1975)).

In this case, Defendant’s representation that he had a private or secret “agreement” with the

Government regarding the quantity of drugs for which he would be held accountable is squarely

refuted by the record. Defendant has presented nothing to suggest that his assertions are anything but

a “newly-minted story” aimed at reducing his lawful sentence. See Winthrop-Redin, 767 F.3d at

1217. Thus, there was no breach of the plea agreement. Correspondingly, counsel had no basis to

object to a breach of the plea agreement, and it is well-established that counsel is not ineffective for

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failing to preserve or argue a meritless claim. Freeman v. Attorney General, Florida, 536 F.3d 1225,

1233 (11th Cir. 2008); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992); see also, e.g.,

Lattimore v. United States, 345 F. App’x 506, 508 (11th Cir. 2009) (counsel not ineffective for failing

to make a meritless objection to an obstruction enhancement); Brownlee v. Haley, 306 F.3d 1043,

1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit);

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel not ineffective for failing to object

to “innocuous” statements by prosecutor, or accurate statements by prosecutor about effect of potential

sentence); Meeks v. Moore, 216 F.3d 951, 961 (11th Cir. 2000) (counsel not ineffective for failing

to make meritless motion for change of venue); Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir.

1995) (counsel need not pursue constitutional claims which he reasonably believes to be of

questionable merit). Therefore, counsel did not perform deficiently for failing to object to an alleged

breach of the plea agreement, and Defendant is not entitled to relief on this claim. 

Ground Two

In his second ground for relief, Defendant contends that counsel was constitutionally

ineffective because counsel did not object to the quantity of drugs attributed to him. Specifically,

Defendant maintains that he was held accountable for 100 to 300 grams of pseudoephedrine, despite

the fact that the Factual Summary stated that Defendant personally had only purchased in excess of

forty (40) boxes of pseudoephedrine (doc. 139). 

As noted above, during the plea colloquy the district court carefully ensured that Defendant

understood the full ramifications of entering a guilty plea. The court explained to Defendant that the

Government was not tied to the minimum amount of drug weight reflected in the statement of facts

(doc. 333 at 55–56). Defense counsel clarified on the record that he had advised Defendant that the

factual statement contained an admission that “pooling” of the pseudoephedrine occurred and the

ramifications of this admission (id. at 62–63). Counsel also noted that he had advised his client that 

that they would not know the quantity of the drugs that would be attributed to Defendant until he

received the PSR (id. at 63). Thus, to the extent Defendant’s asserts he did not know that he could

be held accountable for more than the forty boxes of pseudoephedrine, his claim is refuted by the

record.

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Additionally, Defendant has offered no meaningful argument in support of a claim that the

district court’s factual determination as to the amount of drugs attributable to him was incorrect, and

none is apparent from the record. Despite Defendant’s admission that he was involved in pooling

pseudoephedrine with multiple other conspirators, the PSR only attributed enough “conspiratorial

pseudoephedrine” to him that his offense level increased by two levels. Because Defendant

personally procured 89 grams, the increase in the offense level required a finding that there were only

eleven additional grams of pseudoephedrine reasonably foreseeable to Defendant from other

conspirators (doc. 249, Second Final PSR at ¶¶ 59, 103). As noted by the Government in its response,

in light of the total amount of pseudoephedrine involved in the conspiracy, Defendant conceivably

could have had far greater quantities of pseudoephedrine attributed to him under the sentencing

guidelines and binding circuit law. See U.S.S.G. § 1B1.3, cmt. n. 2; United States v. Vestry, 524 F.3d

1198, 1219 (11th Cir. 2008) (quoting United States v. Matthews, 168 F.3d 1234, 1247 (11th Cir.

1999)). Therefore, a decision not to make an unfounded objection to the quantity assessment in this

case, and thereby potentially risk greater exposure, was not constitutionally ineffective, and Defendant

is not entitled to relief on this ground. 

Ground Three

In Defendant’s third ground for relief, he asserts that counsel was constitutionally ineffective

by failing to object to the application of the obstruction of justice enhancement. First, the court notes

that counsel did object to this enhancement (see doc. 215 at 4). However, counsel strategically chose

not to pursue the objection after becoming aware that pursuit of same could result in Defendant losing

both the three-point acceptance of responsibility adjustment and his opportunity to cooperate with the

Government (see doc. 216 at 2, doc. 371, exh. A). 

Additionally, the court notes that Defendant does not suggest why the application of this

enhancement was inappropriate in his case. The PSR reflects that Defendant and co-defendant

Ramsey attempted to intimidate a cooperating co-conspirator from providing further information to

law enforcement by physically assaulting him (Second Final PSR ¶¶ 97, 98, 117, 118). In order 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), but he failed to do

so. And, as noted supra, conclusory allegations of ineffective assistance such as those raised in this

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claim 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)). 

Defendant has not shown that counsel was constitutionally ineffective with respect to the obstruction

adjustment, and he is not entitled to relief.

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 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. 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 that:

1. The Second Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to

28 U.S.C. § 2255 (doc. 366) be DENIED.

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2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 22nd day of December 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

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.: 3:11cr13/MCR/EMT; 3:12cv254/MCR/EMT

Case 3:11-cr-00013-MCR-EMT Document 407 Filed 12/22/14 Page 12 of 12