Page 1 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:10cr46/MW/GRJ

4:13cv687/MW/GRJ

FRANCO NICHOLAS PADGETT

AMENDED REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s amended motion to 

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and 

supporting memorandum of law. (ECF Nos. 145, 150.) The Government 

filed a response (ECF No. 158) and Petitioner filed a reply. (ECF No. 160.) 

After review of the record, the undersigned concluded that Petitioner had

not raised any issue requiring an evidentiary hearing and recommended 

that the § 2255 motion be denied. (ECF No. 179.) Petitioner filed objections 

to the recommendation and the district judge remanded the case for 

consideration of an issue raised for the first time in Petitioner’s objections, 

relating to Ground One of his motion. (ECF Nos. 180, 181.) The 

Government has now filed a response, as directed (ECF No. 185), and 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 1 of 52
Page 2 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Petitioner has filed a reply. (ECF No. 187.) After review of Petitioner’s 

objections and the parties’ new submissions, it remains the 

recommendation of this court that Petitioner’s motion to vacate should be 

denied. 

PROCEDURAL BACKGROUND

Petitioner Franco Nicholas Padgett was charged along with Christy 

Jean Bailor in a two count indictment with conspiracy to commit burglary 

with the intent to steal controlled substances in violation of 18 U.S.C. § 

2118(d), and possession with intent to distribute controlled substances 

listed under schedule II, which substances were stolen from the Eastwood 

Pharmacy in Tallahassee, Florida in violation of 21 U.S.C. §§ 841(a)(1), 

841(b)(1)(C), 841(b)(1)(E)(i), and 841(b)(2), and 18 U.S.C. § 2. (ECF No. 

1.) Bailor, who used to work at the pharmacy, provided information about 

the layout of the pharmacy, which was used by Shane Eugene Maxwell, 

Holli Prather, Petitioner, and Sarah Padgett, Petitioner’s sister, to plan the 

burglary.1 Each of the co-conspirators, with the exception of Petitioner, 

pleaded guilty. 

 

1 Maxwell, Prather and Sarah Padgett were charged in Case 4:10cr5/RH.

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 2 of 52
Page 3 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Petitioner proceeded to trial, represented by appointed counsel 

Clifford Davis, Esq. After a two day jury trial, the jury convicted him as 

charged. (ECF Nos. 68, 118, 120.) The evidence showed, that although 

Petitioner did not participate in the actual burglary, he was present at a 

planning meeting; he provided bleach to clean up blood left at the scene at 

the other conspirators’ request; he drove Maxwell, Prather and Sarah 

Padgett back to the pharmacy on the night of the burglary so they could 

use the bleach to destroy evidence of the crime; and he received a “cut” of 

the drugs stolen during the burglary. (See ECF No. 79, PSR ¶ 25; ECF No. 

136 at 7-8.)2 Petitioner’s defense was that there was a lack of physical 

evidence connecting him to the crime, and that the only evidence 

supporting a finding that he was even minimally involved was the testimony 

of alleged co-conspirators, who were addicts or drug users with a strong 

motivation to lie. (ECF No. 120 at 322-337.)

Pursuant to the Presentence Investigation Report (“PSR”), 

Petitioner’s base offense level was 28, and he had a criminal history 

 

2 Additional details surrounding the offense conduct are contained in the PSR as well as 

the Government’s response to the § 2255 and are set forth herein only as necessary for 

resolution of Petitioner’s claims. (See ECF No. 79; ECF No. 158 at 3-13.)

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 3 of 52
Page 4 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

category of IV. (ECF No. 79.) The applicable guidelines range in 

accordance with these calculations was 110 to 137 months. 

Shortly after the final PSR was prepared, Attorney Bernie Daley was 

appointed to represent Petitioner at sentencing. In making the substitute 

appointment, the Court noted that Attorney Davis had effectively 

represented Petitioner, but that irreconcilable differences had arisen 

between him and his client. (ECF No. 83.). Mr. Daley made numerous 

objections, and at sentencing, the court overruled in turn the objections to 

the quantity of drugs attributed to him, the lack of minor role adjustment, 

and the scoring of certain prior offenses. (ECF No. 122 at 4-6.) When given 

the opportunity to address the court, Petitioner noted that the statement in 

the PSR that Ms. Padgett had said he received part of the drugs was 

mistaken because neither she nor Ms. Prather had made such a claim. 

He also denied that he had been with the other co-defendants at the Motel 

6 for the planning meeting. (ECF No. 122 at 8-9.) After Petitioner made his 

statement to the court, counsel argued that his client had a lesser role in 

the offense than the role of the other defendants, that his criminal history 

category overrepresented the seriousness of his criminal history, and that a 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 4 of 52
Page 5 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

substantial variation from the applicable guideline range was warranted. 

(ECF No. 122 at 10-12, 14.) 

The court sentenced Petitioner to concurrent terms of 110 months

imprisonment on each count. (ECF No. 103.)3 The sentence included 

restitution in the amount of $15,281.16, jointly and severally with Shane 

Maxwell, Holli Prather, Sarah Padgett and Christy Bailor. 

Petitioner appealed, raising four grounds for relief. He contended that 

(1) the introduction of hearsay statements by an unidentified informant 

violated his Confrontation Clause rights; (2) the district court committed 

plain error when it admitted evidence of prior drug dealing; (3) the evidence 

was insufficient to sustain a conviction for conspiracy to commit burglary; 

and (4) his sentence was procedurally unreasonable. (ECF No. 136.). 

The Eleventh Circuit found no error and affirmed his convictions and 

sentence on January 15, 2013. (ECF No. 136.) 

 3 Petitioner’s sentence was later reduced from 110 months to 92 months pursuant 

to Amendment 782 to the Sentencing Guidelines due to a two level reduction in his base 

offense level. (ECF No. 168). 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 5 of 52
Page 6 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Petitioner’s initial motion to vacate was timely filed in December of 

2013. (ECF No. 141.) He amended his motion pursuant to court order and 

filed a memorandum in support. (ECF No. 145, 150.)4 In his amended 

motion (“motion”), Petitioner raises ten grounds for relief, which encompass 

seven claims of ineffective assistance of counsel, two allegations of due 

process violations by the Government and a sixth amendment claim. The 

Government opposes the motion in its entirety. 

 

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 

 

4 Petitioner moved for leave to file a second amended motion, but ultimately chose to 

pursue relief pursuant to the first amended motion. (ECF Nos. 147-149.)

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 6 of 52
Page 7 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

U.S.C. ' 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n. 8 (11th

Cir. 2011). ARelief 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 Afundamental 

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 Ahas 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. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); 

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 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 7 of 52
Page 8 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

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) (Aidentical 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 1234B35; 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 A>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 Aactually innocent.@ Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 8 of 52
Page 9 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

622 (citations omitted). To show cause for procedural default, a defendant 

must show that Asome 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, 

the standards for which are set forth in more detail below, can constitute 

cause. See Nyhuis, 211 F.3d at 1344.

An evidentiary hearing is unnecessary when Athe motion and files and 

records conclusively show that the prisoner is entitled to no relief.@ See 28 

U.S.C. ' 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 

2015); Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not 

every claim of ineffective assistance of counsel warrants an evidentiary 

hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 

707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must 

allege facts that, if true would prove he is entitled to relief. See Hernandez 

v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not 

required on frivolous claims, conclusory allegations unsupported by 

specifics, or contentions that are wholly unsupported by the record. See

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 9 of 52
Page 10 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

WinthropBRedin v. United States, 767 F .3d 1210, 1216 (11th Cir. 2014) 

(explaining that Aa district court need not hold a hearing if the allegations [in 

a ' 2255 motion] are ... based upon unsupported generalizations@) (internal 

quotation marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th 

Cir. 2004). Even affidavits that amount to nothing more than conclusory 

allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. Finally, 

disputes involving purely legal issues can be resolved by the court without 

a hearing. 

Petitioner’s Specific Claims for Relief

1. Sixth Amendment Right to Jury Trial Was Violated5

Petitioner’s first claim is that his Sixth Amendment right to a jury trial 

was violated because the jury was not given special instructions as to drug 

quantity or type. Therefore, he argues, absent a special verdict and absent 

the Government’s filing of an § 851 notice, the court could not sentence 

him above the five year statutory maximum set forth in § 841(b)(2). 

 

5 This court originally recommended that Petitioner’s amended motion be denied. The 

Petitioner submitted detailed objections in which he argued, for the first time, that 

because the Government did not file a notice pursuant to 21 U.S.C. § 851 before trial,

the court did not have jurisdiction to exceed the five year statutory maximum sentence 

sent forth in § 841(b)(2). (ECF No. 180 at 1-2.) The district court remanded the case 

for consideration of this claim which is discussed in this section of the recommendation.

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 10 of 52
Page 11 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

This claim, which is framed as a stand-alone Sixth Amendment claim, 

could have been raised on appeal. As such it is procedurally barred.

See Lynn, 365 F.3d at 1234B35; Bousley, 523 U.S. at 621; McKay, 657 

F.3d at 1195. Petitioner notes on the § 2255 form that this issue was not 

raised on appeal due to ineffective assistance of appellate counsel. (ECF 

No. 145 at 5.) Clearly, this is not equivalent to raising the claim as an 

ineffective assistance of counsel claim. Nonetheless, the pleadings of pro 

se litigants are entitled to liberal construction and are held to less stringent 

standards than formal pleadings drafted by attorneys. See Haines v. 

Kerner, 404 U.S. 519 (1972). Therefore, the Court will liberally construe 

Petitioner’s claim as incorporating a claim of ineffective assistance of 

appellate counsel due to counsel’s failure to raise the arguments Petitioner 

now raises.

Petitioner was charged in Count Two of the indictment with 

possession with intent to distribute a controlled substance in violation of 

Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E)(i), and 841(b)(2) 

and Title 18 U.S.C. § 2. (ECF No. 1.) Each provision applies to a 

particular schedule or schedule of drugs. Violations of section 841(b)(1)(C) 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 11 of 52
Page 12 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

(possession of schedule I and II substances) carry a maximum penalty of 

20 years, or 30 years with a prior felony drug conviction; violations of 

section 841(b)(1)(E)(i) (schedule III substances) carry a maximum penalty 

of 10 years, or 20 years after a prior felony drug conviction; and violations 

of § 841(b)(2) (schedule IV substances) carry a maximum penalty of 5 

years, or 10 years after a felony drug offense has become final.

On the second day of trial, defense counsel Clifford Davis, Esq.

requested a special verdict form that would define or identify the type of 

drug. (ECF No. 120 at 217.) In response, the Government argued that no 

special finding as to quantity was required “because it does not trigger a 

mandatory minimum sentence given the charged drugs” and “any 

possession of any of the drugs, or any act in furtherance of the conspiracy 

would establish guilt if there’s a unanimous finding as to Count 1.” (ECF 

No. 120 at 217-218.) The Court took the matter under advisement, but 

ultimately did not grant the request. (ECF No. 120 at 218, 353.)

The Court’s jury instructions tracked the language of the indictment 

in identifying the substances with which Petitioner was charged of 

possessing. (ECF No. 65 at 13.) The jury was not charged with the 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 12 of 52
Page 13 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

responsibility of identifying either the substance or substances that 

Petitioner possessed, or the quantity of each. The verdict form included 

neither a list of controlled substances nor citation to the statutory sections 

enumerated in the indictment. Rather it merely provided a space for the jury 

to indicate whether Petitioner was guilty of “possession with intent to 

distribute a controlled substance.” (ECF No. 68.) Thus, in reaching its 

verdict of guilty, the jury was not required to report any findings as to the 

substance or substances involved in this case.

As reflected in the PSR, the offense conduct in this case involved 

both Schedule I/II Opiates and Stimulants, which fall under § 841(b)(1)(C), 

and Schedule IV substances, which fall under § 841(b)(2). (ECF No. 79, 

PSR ¶ 20). The substances were converted to marijuana equivalents, 

yielding a total of 648.9 kilograms of marijuana. (ECF No. 79, PSR ¶ 21). 

Despite the quantity of drugs attributable to him, in light of the lack of 

specific findings by the jury, Petitioner’s sentence with respect to Count 

Two could not have exceeded the statutory maximum for the controlled 

substance with the lowest penalty. See United States v. Allen, 302 F.3d 

1260 (11th Cir. 2002).

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 13 of 52
Page 14 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

The PSR states that Petitioner was subject to a maximum 

unenhanced term of imprisonment of twenty years pursuant to 21 U.S.C. § 

841(b)(1)(C). (ECF No. 79, PSR ¶ 75.) The omission of any reference to 21 

U.S.C. § 841(b)(2) was not among the written defense objections to the 

PSR filed by Petitioner’s attorney, Bernard Daley, who had been appointed 

to represent Petitioner at sentencing. (See ECF No. 79 at ¶¶ 99-108; ECF 

No. 83.) Additionally, neither the Government nor the defense raised this 

issue at sentencing. (ECF No. 122 at 3-7.) The Final Judgment adopted the 

error in the PSR and reflects that Petitioner was sentenced under 21 

U.S.C. § 841(b)(1)(C) to a term of 110 months imprisonment, which was 

within the maximum term proscribed by that statute. (See ECF No. 103 at 

1.) As noted above, this issue was not raised on appeal (ECF No. 136), 

and Petitioner now contends that this was due to ineffective assistance of 

counsel.

Given a proper § 851 notice, Petitioner could have been subject to an 

enhanced sentence. Petitioner’s PSR reflects that in September of 2002, 

Petitioner pleaded nolo contendere to charges of possession of a controlled 

substance and driving while license suspended or revoked. (ECF No. 79, 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 14 of 52
Page 15 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

PSR ¶ 50.) The PSR describes the controlled substance in Petitioner’s 

possession as Xanax pills, which is a brand name of alprazolam. 

Alprazolam is a schedule IV controlled substance under Florida law, 

unauthorized possession of which is a third degree felony. See Fla. Stat. §§

893.03(4)(a); 893.13(1)(a)2. This conviction could have supported the filing 

of a Notice of Enhancement pursuant to 28 U.S.C. § 851. However, none 

was filed. 

Due process of law requires that a defendant receive effective 

assistance of appellate counsel on his direct appeal. Evitts v. Lucey, 469 

U.S. 387, 396 (1985). The Sixth Amendment, however, 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, 287B88 (2000); Knowles v. Mirzayance, 556 U.S. 

111, 126B127 (2009); Jones v. Barnes, 463 U.S. 745, 751B52 (1983); 

Heath v. Jones, 941 F.2d 1126, 1130B31 (11th Cir. 1991). It is possible to 

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 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 15 of 52
Page 16 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (AGenerally, 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). 

AExperienced advocates since time beyond memory have emphasized the 

importance of winnowing out weaker arguments on appeal and focusing on 

one central issue if possible, or at most on a few key issues.@ Barnes, 463 

U.S. at 751B52. In fact, this is the Ahallmark 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). 

To prevail on a claim for ineffective assistance of appellate counsel, a 

defendant must show that (1) appellate counsel's performance was 

deficient, and (2) but for counsel's deficient performance he would have 

prevailed on appeal. Shere v. Sec'y Fla. Dep't of Corr., 537 F.3d 1304, 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 16 of 52
Page 17 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

1310 (11th Cir. 2008); see Philmore v. McNeil, 575 F.3d 1251, 1264 (11th

Cir. 2009) (holding that claims for ineffective assistance of appellate 

counsel are governed by the same standards applied to trial counsel under 

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

At the time of Petitioner’s appeal, controlling law in the Eleventh 

Circuit provided that strict compliance with the procedural requirements of § 

851 was a jurisdictional requirement. United States v. Harris, 149 F.3d 

1304 (11th Cir. 1998).6 Therefore, appellate counsel had an available 

challenge to Petitioner’s sentence on Count Two as exceeding the court’s 

jurisdiction due to the Government’s failure to file a § 851 notice. Had 

counsel raised this jurisdictional issue, despite having overlooked it at 

sentencing, Petitioner arguably would have been entitled to resentencing 

 

6 The Eleventh Circuit has recently recognized that the holding in Harris has been 

abrogated by subsequent holdings of the Supreme Court. See United States v. 

DiFalco, 837 F.3d 1207 (11th Cir. 2016) (citing United States v. Ladson, 643 F.3d 1335, 

1343 n.11 (11th Cir. 2011) (citing Eberhart v. United States, 546 U.S. 12, 16, 126 S. Ct. 

403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 455, 124 S. Ct. 906, 157 

L.Ed.2d 867 (2004))). In DiFalco, which involved a direct appeal, the Eleventh Circuit 

held that although 21 U.S.C. § 851 imposes mandatory requirements on the 

Government, these requirements are not jurisdictional, and thus they may be waived. 

837 F.3d at 1219-1220. Defendant concedes in his traverse to the Government’s 

response that his jurisdictional claim has been rendered moot due to changes in the 

law. (ECF No. 187 at 1, citing Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 

1320 (11th Cir. 2004).

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 17 of 52
Page 18 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

on Count Two. While this may have been so, Petitioner is not entitled to 

relief because the concurrent sentence doctrine removes the certainty from 

this equation.

The concurrent sentence doctrine provides that, “if a defendant is 

given concurrent sentences on several counts and the conviction on one 

count is found to be valid, an appellate court need not consider the validity 

of the convictions on the other counts.” In re Davis, 829 F.3d 1297, 1299

(11th Cir. 2016) (quoting United States v. Fuentes-Jimenez, 750 F.2d 1495, 

1497 (11th Cir. 1985)); United States v. Bradley, 644 F.3d 1213, 1293 (11th

Cir. 2011) (quoting Fuentes-Jimenez, 750 F.2d at 1497); In re Williams, 

826 F.3d 1351 (11th Cir. 2016) (applying the concurrent sentence doctrine 

to deny an inmate’s application to file a second or successive § 2255 

motion under Johnson); In re Clayton, 829 F.3d 1254, 1266 n.16 (11th Cir. 

2016) (characterizing the concurrent sentence doctrine as treating an illegal 

sentence as harmless “if a prisoner is serving another sentence that is just 

as long as the illegal one”); but see Ray v. United States, 481 U.S. 736 

(1987) (application of special monetary assessment to challenged 

conviction required review of conviction, despite existence of two 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 18 of 52
Page 19 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

concurrent sentences). The doctrine is not a jurisdictional bar to 

consideration of challenges to multiple convictions, but merely a rule of 

judicial convenience where its use is appropriate. Fuentes-Jimenez, 750 

F.2d at 1497; Benton v. Maryland, 395 U.S. 784, 787-791 (1969); United 

States v. Casey, 428 F.2d 229, 232 (5th Cir. 1970). Only when the 

defendant would suffer “adverse collateral consequences from the 

unreviewed conviction” does the doctrine not apply. Davis, 829 F.3d at 

1299; Bradley, 644 F.3d at 1293; Fuentes-Jimenez, 750 F.2d at 1497. 

Whether the doctrine applies to jurisdictional challenges is unclear. See

Government of Canal Zone v. Burjan, 596 F.2d 690, 695 n.8 (5th Cir. 1979)

(the court decided to “pretermit a decision as to the applicability of the 

concurrent sentence doctrine and reach the merits of the jurisidictional 

challenge to the conviction.”) 

Petitioner was sentenced to identical concurrent terms on the two 

counts. Had this issue been raised, reviewed, and decided in Petitioner’s 

favor on appeal, only his sentence on Count Two would have been 

affected. Absent any guidelines recalculation, his original 110 month 

sentence on Count One would have remained intact until the later 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 19 of 52
Page 20 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

application of Amendment 782, following which his sentence was reduced 

to 92 months. (See ECF No. 168.) In short, despite the error, a reduction 

in his sentence on only one of the two counts would have no practical effect 

on the length of Petitioner’s total sentence. 

Consequently, while Petitioner’s appellate counsel could have raised 

a challenge to Petitioner’s sentence under Count II based upon the

government’s failure to file a § 851 notice, that does not entitle Petitioner to 

relief because Petitioner has not shown prejudice from counsel’s failure to 

raise this issue. And as a stand alone Sixth Amendment claim Petitioner is 

not entitled to relief because the law in the Eleventh Circuit now provides 

that the claim is not jurisdictional, DiFalco, 837 F.3d 1207, and therefore is 

procedurally defaulted where, as here, the claim was never raised on 

appeal.

2. Due Process Violations (Claims Two and Three)

Petitioner contends that the Government violated due process when it 

used false testimony and when it failed to disclose payments to a key 

witness.

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 20 of 52
Page 21 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

First, Petitioner argues that the Government submitted the false 

testimony of Christy Bailor to the effect that Shane Maxwell called Bailor’s 

cell phone during the burglary because Petitioner’s cell phone had been 

shut off because he did not pay the bill. He contends that the Government 

knew that this testimony was false, because it had cell phone records that 

indicated both that Petitioner’s phone was operational and that Bailor and 

Petitioner had exchanged cell phone calls just prior to the burglary. 

A review of Ms. Bailor’s testimony reveals that it was internally 

inconsistent on not only this point but others. (See ECF No. 120 at 232-

274.) Petitioner is correct that Ms. Bailor testified that Shane Maxwell called 

her cell phone to reach the Petitioner because Petitioner’s phone had been 

shut off because he “did not pay the bill.” (ECF No. 120 at 247.) However, 

she also testified that only a day or two before the robbery, she had called 

Petitioner on his cell phone, and in later testimony reaffirmed that Petitioner 

had a phone, which did not suggest it was non-operational. (See ECF No. 

120 at 239, 262, 267.) Ms. Bailor was not asked to explain this 

inconsistency, and in the Government’s closing, it stated that Ms. Bailor’s 

phone was used because Petitioner had “run out of minutes on his boost 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 21 of 52
Page 22 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

phone,” a slightly different characterization of her testimony, during which

she did not mention Petitioner’s cell provider. (ECF No. 120 at 339.) 

Petitioner has not proven that Ms. Bailor’s statement that his phone was 

not operational on the night of the burglary was false, and even if it was, 

this was a matter for impeachment and argument. Furthermore, the 

question of which phone was used when Petitioner took the call from 

Maxwell in which Maxwell asked for clean-up assistance after the burglary 

is of no consequence. Regardless of which phone was used, the evidence 

showed that Petitioner responded to the call for assistance by supplying the 

other conspirators with bleach, as requested, for which he was rewarded

with a share of the burglary proceeds. He has not established a 

constitutional violation. 

Next, in his third claim for relief, Petitioner claims that the 

Government failed to disclose the fact that it paid Ms. Bailor $900 “for her 

testimony” at trial. (ECF No. 145 at 8.) He notes that he only learned of this 

when Bailor disclosed the information to him during a conversation they 

had outside while the jury was deliberating. Petitioner contends that this 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 22 of 52
Page 23 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

payment to a key Government witness should have been disclosed to the 

defense.

Petitioner attempts to draw a parallel between this case and Guzman 

v. Sec’y, Dep’t of Corr., 698 F. Supp. 2d 1317 (M.D. Fla.), aff’d, Guzman v. 

Sec’y, Dep’t of Corr., 661 F.3d 602 (11th Cir. 2011). In Guzman, a witness,

who was an admitted crack cocaine addict and prostitute, testified that she 

had received no benefit for her testimony, when in fact she had received 

food, lodging and dismissal of pending criminal charges against her as well 

as a $500 reward. 698 F. Supp. 2d at 1332. The lead detective also falsely 

testified about the payment of reward money to the witness, who was 

known to have lied on previous occasions. The Guzman court found that

there was a Giglio violation because under the circumstances of that case,

the false testimony from the two witnesses was material in that there was a 

reasonable likelihood that it could have affected the verdict. 698 F. Supp. 

2d at 1333-34. 

In its response, the Government argues that the “payment” to Ms. 

Bailor was actually reimbursement for travel expenses. Ms. Bailor, who 

resided out of state at the time of Petitioner’s trial, was issued a subpoena 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 23 of 52
Page 24 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

to testify at Petitioner’s trial. She incurred travel expenses in complying with 

the subpoena. According to the Department of Justice Guiding Principles 

for Obtaining Witness Services under the Fees and Expenses of Witnesses 

Appropriation, Ms. Bailor received an advance travel cost reimbursement of 

$928.20 from the United States Marshal’s Service. (ECF No. 158, Exh. A.)). 

The Petitioner argues in response that Ms. Bailor received in excess 

of the normal mileage allotment, citing 5 U.S.C. § 5704. This statute does 

not specify a particular amount for mileage. The mileage rate at which Ms. 

Bailor was reimbursed was the rate in effect at that time. See

https://www.gsa.gov/portal/content/103969. Petitioner’s speculation that the 

Government may have failed to disclose other payments it made to Ms. 

Bailor or other witnesses is nothing more than speculation which does not 

entitle him to relief. 

Ms. Bailor was not “paid for her testimony,” there was no 

constitutional violation, and Petitioner is not entitled to relief. 

3. Ineffective assistance of counsel (Claims Four through Ten)

Ineffective assistance of counsel claims are generally not cognizable 

on direct appeal and are properly raised by a ' 2255 motion regardless of 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 24 of 52
Page 25 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

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); United States v. Campo, Case 14-

15541; 2016 WL 6518520 n.5 (11th Cir. Nov. 1, 2016). 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) (A[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 Awhether counsel=s assistance was 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 25 of 52
Page 26 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

reasonable considering all the circumstances.@ Strickland, 466 U.S. at 

688; see also Dingle v. Sec=y for Dep=t of Corr., 480 F.3d 1092, 1099 (11th

Cir. 2007). Reviewing courts are to examine counsel=s performance in a 

highly deferential manner and Amust 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, 1315B16 (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 Anot 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 Ano 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. “[T]he fact that a particular defense ultimately proved to 

be unsuccessful [does not] demonstrate ineffectiveness.” Chandler, 218 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 26 of 52
Page 27 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

F.3d at 1314. When reviewing the performance of an experienced trial 

counsel, the presumption that counsel=s conduct was reasonable is even 

stronger, because A[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. AThe 

likelihood of a different result must be substantial, not just conceivable.@ 

Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland). For 

the court to focus merely on Aoutcome determination,@ however, is 

insufficient; A[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, 369B70 (1993); Allen v. Sec=y, Fla. Dep=t of Corr., 

611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore must establish 

Athat 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, 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 27 of 52
Page 28 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

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, 203B04 (2001). A significant increase in sentence is 

not required to establish prejudice, as Aany 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, 1406B07 (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, 1333B34 

(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)).

Counsel is not ineffective for failing to preserve or argue a meritless 

claim. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 28 of 52
Page 29 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

(citing Freeman v. Attorney General, Florida, 536 F.3d 1225, 1233 (11th 

Cir. 2008)). This is true regardless of whether the issue is a trial or 

sentencing issue. See, e.g., Sneed v. Florida Dep=t of Corrections, 496 F. 

App=x 20, 27 (11th Cir. 2012) (failure to preserve meritless Batson claim not 

ineffective assistance of counsel); 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).

To prevail on a claim for ineffective assistance of appellate counsel, a 

defendant must show that (1) appellate counsel's performance was 

deficient, and (2) but for counsel's deficient performance he would have 

prevailed on appeal. Shere v. Sec'y Fla. Dep't of Corr., 537 F.3d 1304, 

1310 (11th Cir. 2008); see Philmore v. McNeil, 575 F.3d 1251, 1264 (11th

Cir. 2009) (holding that claims for ineffective assistance of appellate 

counsel are governed by the same standards applied to trial counsel under 

Strickland v. Washington, 466 U.S. 668, 687 (1984)). Counsel is clearly 

not ineffective for failing to raise a meritless issue on appeal. Shere, 537 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 29 of 52
Page 30 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

F.3d at 1311; Ladd v. Jones, 864 F.2d 108, 110 (11th Cir. 1989) (A[S]ince

these claims were meritless, it was clearly not ineffective for counsel not to 

pursue them.@).

Finally, the Eleventh Circuit has recognized that given the principles 

and presumptions set forth above, Athe 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). AEven 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 Adefeat 

was snatched from the hands of probable victory.@ United States v. 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 30 of 52
Page 31 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Morrow, 977 F.2d 222, 229 (6th Cir. 1992). Regardless of how the 

standard is framed, under the prevailing case law it is abundantly clear that 

a moving defendant has a high hurdle to overcome to establish a violation 

of his constitutional rights based on his attorney=s performance. A 

defendant=s belief that a certain course of action that counsel failed to take 

might have helped his case does not direct a finding that counsel was 

constitutionally ineffective under the standards set forth above. The court 

will review Petitioner’s specific claims in turn in accordance with these 

principles.

a. Failure to Call Witnesses

Petitioner first contends that counsel failed to call Erin Guthrie and 

Story Fortner as defense witnesses. He asserts that these witnesses could 

have contradicted Bailor’s testimony about his whereabouts the night of the 

burglary. Petitioner explains that he and Bailor went to stay overnight at 

Guthrie’s apartment on the night in question. He says that at approximately 

10:30 p.m., Bailor left the apartment and drove to an auto repair shop so 

her vehicle could be first in line to be repaired the following day. Bailor 

called Petitioner and asked him to have either Guthrie or Fortner pick her 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 31 of 52
Page 32 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

up. According to Petitioner, Guthrie picked up Bailor and drove her back to 

the apartment. The next morning Guthrie dropped both Petitioner and 

Bailor at the repair shop before proceeding to work. He states that either 

Guthrie or Fortner could confirm this story, and thus establish that he did 

not have access to a vehicle, as claimed by Bailor. Petitioner asserts that 

he provided Guthrie and Fortner’s contact information to counsel but that 

counsel failed to subpoena them at witnesses. Petitioner notes that he 

contacted them and asked them to appear at his trial, and when they did 

appear, it was Petitioner, and not counsel, who instructed them to remain 

outside the courtroom in case the defense needed to call them as 

witnesses. 

Petitioner’s former attorney, Clifford Davis submitted an affidavit in 

response to the motion to vacate. With respect to claim four, attorney Davis 

avers that both he and his paid investigator interviewed Erin Guthrie and 

Story Fortnter. (ECF No. 158-2 at 1.) Counsel states that he did not call 

them as witnesses because their testimony confirmed the testimony of

Bailor. Counsel recalls that each witness denied having heard a phone call 

or having heard Petitioner leave the apartment, but that they could not say 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 32 of 52
Page 33 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

that he did not leave without their knowing it, and each confirmed that 

Bailor’s car was at the apartment. 

Counsel also noted that the physical appearance of the witnesses 

was “unprofessional.” Their look, dress and demeanor was consistent with 

the appearance of the Government witnesses, who admitted to being 

methamphetamine and narcotic abusers. Appended to Mr. Davis’s affidavit 

is a copy of an unsworn email from his investigator, Monica Jordan. She 

notes that she recalls that these witnesses were not called for strategic 

purposes and that neither was able to recall the time and date of Bailor’s 

car repair. Ms. Jordan also notes that she spent “countless hours trying to 

determine the car repair issues... to no avail.” (ECF No. 158-3 at 1.)

With his reply, Petitioner has submitted affidavits from both Ms. 

Guthrie and Mr. Fortner. (ECF No. 160 at 20-21.) Ms. Guthrie states that 

she dropped off Petitioner and Ms. Bailor at a repair shop on Apalachee 

Parkway before 8:00 a.m. on the morning of October 9, 2009. She also 

notes that during the late evening of October 8, 2009 neither Bailor nor 

Petitioner had access to any vehicles, since Bailor’s vehicle was at the 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 33 of 52
Page 34 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

repair shop. Ms. Guthrie does not mention that she was the person who 

picked Ms. Bailor up after Bailor left her vehicle at the repair shop. 

Mr. Fortner, whose affidavit was notarized by Ms. Guthrie, states that 

after approximately 10:30 p.m. on October 8, 2009, Petitioner and Ms. 

Bailor had to rely on Guthrie and Fortner for transportation because Ms. 

Bailor’s vehicle was at the repair shop. (ECF No. 160 at 21.) Both 

witnesses say that they told Petitioner’s attorney they would be willing and 

able to testify at trial, and were present at trial. 

Thus, according to Petitioner, Guthrie’s and Fortner’s testimony 

would have been presented to confirm that Petitioner and Bailor spent the 

night at Guthrie’s residence, that Bailor’s vehicle was taken to the repair 

shop during the late evening of October 8, 2009, that both Guthrie and 

Fortner were awake and preparing for work prior at 7:00 a.m. on October 9, 

2009 and had observed Petitioner at the residence, and that Guthrie drove 

Petitioner and Bailor to the repair shop before 8:00 a.m. that morning.

Neither counsel nor his investigator were able to confirm the truth of 

these statements after their interviews with the purported witnesses. 

Notably, there is a lack of corroborating evidence about the unidentified 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 34 of 52
Page 35 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

repair shop on Apalachee Parkway and when Bailor’s vehicle allegedly was 

there. But, there appears to be no dispute that rightly or wrongly counsel 

interviewed the witnesses and based upon the interviews counsel 

concluded that the testimony of the two witnesses would not have been 

helpful and may have been harmful to his client. Counsel’s decision not to 

call these witnesses therefore was not constitutionally deficient 

performance.

b. Failure to Interview witnesses

Petitioner contends that counsel was constitutionally ineffective 

because he failed to interview Brittany Snyder and R.J. Snyder, who, 

Petitioner says could have provided impeachment evidence against Christy 

Bailor. Specifically, he asserts that these witnesses would have testified 

that they had not dined with Petitioner and Bailor at a Mexican restaurant 

just prior to Petitioner and Bailor going to the motel where the discussion 

about robbing or burglarizing the pharmacy took place.

Christy Bailor testified at trial that she and Petitioner were eating at El 

Jalisco Mexican Restaurant with R.J. and Brittany when Petitioner went 

outside to engage in a drug transaction inside Maxwell’s vehicle. (See ECF 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 35 of 52
Page 36 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

No. 120 at 238-240; 262-263.) When a restaurant employee noticed the 

transaction, she telephoned Petitioner and told him that they had been 

spotted and they needed to leave, which they did. Petitioner claims that the 

events in question did not occur. He says that Maxwell’s testimony on 

direct examination about getting drugs from Petitioner at the Mexican 

restaurant seemed to support Bailor’s version of events (see ECF No. 118 

at 110-111), was contradicted on cross when Maxwell said that he did not 

have the money to pay for any drugs, which is why he was having 

withdrawals. The fact that Maxwell did not have any drugs or the money to 

pay for drugs is evidence of a motivation to commit the burglary. 

Counsel avers in his affidavit that Brittany and R.J. Snyder were 

never identified to counsel or the investigator. Further, he says that whether 

they dined with Bailor and Petitioner at a restaurant was immaterial to any 

issue at trial. (ECF No. 158-2 at 1.) Similarly, Investigator Jordan’s email to 

counsel states that she had no memory or notes in the file regarding the 

names of Brittany and R.J. Snyder. She further that although Petitioner 

provided numerous names during their meetings, the names he provided 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 36 of 52
Page 37 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

were nicknames or merely first names, leaving Ms. Jordan little possibility 

of locating the witnesses. (ECF No. 158-3 at 1.) 

Even if the witnesses could have testified as Petitioner now suggests, 

whether they had dinner with Petitioner and Bailor, as testified to by Bailor,

was not probative of any significant issue at trial. Petitioner’s assertion that 

the restaurant meeting was the focal point to explain how and why the trio 

came to be at the motel where the alleged planning took place is not 

persuasive. (ECF No. 160 at 11.) Accordingly, Petitioner has not shown 

counsel was constitutionally ineffective for his failure to locate and call 

these witnesses.

c. Failure to object to 404(b) evidence and request limiting 

instruction

Petitioner contends that counsel was ineffective when he failed to 

object to the introduction of bad acts evidence regarding his alleged 

participation in drug transactions, and failed to request limiting instructions. 

As a result, he says, the jury convicted him based upon his alleged prior 

bad acts rather than the conduct alleged in this case. 

Evidence of prior bad acts is not admissible to prove a person’s 

character and show that a person acted in accordance with this character 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 37 of 52
Page 38 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

on a particular occasion. Fed.R.Evid. 404(b)(1). Such evidence may be 

admissible to show motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident. Fed.R.Evid. 

404(b)(2). Upon request by a defendant in a criminal case, the prosecutor 

must provide reasonable notice of the general nature of any such evidence 

that the prosecutor intends to offer and do so either before trial or during 

trial if the court, for good cause, excuses the lack of pretrial notice. 

Fed.R.Evid. 404(b)(2). 

The Government did not file a 404(b) notice except as it pertained to 

the testimony of Christy Bailor, which notice was filed shortly before Bailor

testified at trial. Counsel objected to the proffered testimony and to Bailor 

testifying about any acts of drug dealing and drug possession that were not 

charged as part of the indictment in this case. (ECF No. 120 at 231.) The 

Government responded that its questions regarding drug distribution would 

be limited to the drugs stolen during the burglary in question, other drugs 

Petitioner sold in Bailor’s presence during the days surrounding the 

burglary, and the drugs that she was provided in exchange for drawing the 

map of the pharmacy. (ECF No. 120 at 232.) The court overruled the 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 38 of 52
Page 39 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

defense objection, within the limitations explained by the Government. 

(Id.). 

Petitioner says that numerous Government witnesses including 

Detective Hoover, Shane Maxwell, and Holli Prather testified about his 

alleged drug dealings, and counsel neither objected nor sought a limiting 

instruction. (ECF No. 150 at 18-19.) 

Counsel avers in his affidavit that he “objected to bad acts evidence 

and it is the best recollection of counsel that that was covered in the court’s 

final instructions to the jury.” The Government points to pages four through 

seven of the jury instructions, the general instructions concerning 

consideration of the evidence and testimony of witnesses. There was no 

specific jury instruction regarding prior bad acts, because the “prior bad 

acts” to which the witnesses testified were arguably part and parcel of the 

offense conduct charged in this case, rather than separate incidents that 

were remote in time, as contemplated by the rule. See United States v. 

Carrasco, 381 F.3d 1237 (11th Cir. 2004) (discussing the admissibility of 

evidence concerning defendant’s drug activities three years prior to his 

indictment in that federal case). 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 39 of 52
Page 40 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Under these circumstances, counsel was not constitutionally 

ineffective for his failure to object to, or require a limiting instruction with 

respect to, evidence about Petitioner’s contemporaneous drug dealings or 

actions related to the offense conduct in this case.

d. Failure to Impeach Government Witnesses

Petitioner contends that trial counsel failed to impeach the 

Government witnesses on collateral matters using the telephone records of 

Bailor and Maxwell. First he says that Bailor testified that while she and 

Petitioner were at a Mexican restaurant the afternoon of October 8, 2009, 

she called him to warn him about an employee watching him and Maxwell, 

although phone records reflect that she did not call him until 10:59 p.m.

Petitioner also asserts that phone records could have been used to 

impeach Bailor about the time of the alleged meeting in the motel. Bailor 

testified that the meeting, where the burglary was discussed, occurred 

between the hours of 6 and 7 p.m. Petitioner asserts that phone records 

disclose that Maxwell called Bailor at 6:32 p.m, which, Petitioner argues,

would have been highly unlikely if the two were in the same motel room.

(ECF No. 150 at 21.) Petitioner concedes however that Bailor testified that

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 40 of 52
Page 41 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

she left the room at one point to retrieve her coffee maker from her vehicle, 

which was packed for her move to Texas. Petitioner says that the Farmer’s 

Almanac discloses that the sun set at 7:14 on October 8, 2009, and in light 

of Bailor’s testimony that it was light outside when they went into the room 

and dark when they left the motel, the meeting could not have occurred at 

the time she recalled. (Id. at 20.) 

However, Bailor testified that the conversation took “hours,” which 

was not inconsistent with the Almanac. (ECF No. 120 at 241.) Bailor’s 

testimony that Petitioner’s cell phone was off was contradicted by her own 

testimony about calling him, which would have been apparent to the jury. 

Finally, Petitioner notes that although Bailor testified that she knew Maxwell 

only in passing, phone records disclosed several calls from her phone to 

Maxwell’s on October 8, 2009, lasting longer than any conversations 

between Petitioner and Maxwell. If true, this could be explained by 

Petitioner using her phone.

Although Bailor’s testimony may have been internally inconsistent, 

the fact remains that the matters about which Petitioner contends Bailor 

should have been impeached were collateral matters. Accordingly, 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 41 of 52
Page 42 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Petitioner has not demonstrated that the proposed impeachment, in light of 

Bailor’s already inconsistent testimony, would have altered the outcome of 

the proceedings. Consequently, counsel’s performance was not 

constitutionally deficient. 

e. Failure to Investigate

Petitioner contends that trial counsel was constitutionally ineffective 

when he failed to investigate and obtain cell phone tower information for 

Bailor’s cell phone. He claims that cell tower data from Bailor’s phone 

would have been shown that the location of her cell phone on the morning 

of October 9, 2009 was within a couple hundred meters of its actual 

location. Petitioner cites United States v. Acton, Case 2:12-cr-0463-JHHJEO, 2013 U.S. Dist. Lexis 17974, 2013 WL 541374, 2013 WL 541425

(N.D. Ala. Feb. 11, 2013) (adopting a report and recommendation which 

mentioned law enforcement’s use of “active GPS information from a cell 

tower demonstrating that the defendant’s cell phone was in the immediate 

area,” which, along with other evidence, formed the basis for law 

enforcement’s reasonable belief that defendant was within the premises 

sought to be searched) as support for his argument. He claims that the cell 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 42 of 52
Page 43 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

phone evidence would have supported the defense position that Petitioner 

remained at Guthrie’s apartment that morning, and would also support his 

contention that Bailor had taken her car to the repair shop at 10:45 p.m.

Petitioner’s argument suggests that the cell phone tower data could 

have been obtained regardless of whether the phone was in use. This is ot 

necessarily so. A cell phone tower is not an infallible tracking device. See

United States v. Davis, 785 F.3d 498 (11th Cir. 2015); United States v. 

Ransfer, 749 F.3d 914 (11th Cir. 2014) (noting that witness mapped the cell 

phone tower location for each phone call). When an individual uses his or 

her cell phone, the cell tower used will typically be the cell tower closest to 

the user. Davis, 785 F.3d at 501. However, the cell tower has a circular 

radius of varying sizes, and it is impossible to precisely place the location 

from which the calls were made. Id. at 501-502. Accordingly, Petitioner has 

not shown that counsel was constitutionally ineffective for his failure to 

secure the records in question. 

f. Failure to object to lack of Overt Act allegation in jury 

instructions

Petitioner asserts that counsel failed to object to the court’s failure to 

include an overt act in the jury instructions. Petitioner was charged in Count 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 43 of 52
Page 44 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

one of the indictment with participating in a conspiracy to commit a burglary 

involving controlled substances in violation of Title 18 U.S.C. § 2118(b)(1). 

(ECF No. 1.) Title 18 U.S.C. § 2118(d) provides that “[i]f two or more 

persons conspire to violate subsection (a) or (b) of this section and one or 

more of such persons does any overt act to effect the object of the 

conspiracy, each shall be fined under this title or imprisoned not more than 

ten years or both.” 

The Supreme Court has held that when a statute specifically requires 

the commission of an overt act, an overt act must be alleged in the 

indictment and found by a jury beyond a reasonable doubt. See Whitfield v. 

United States, 543 U.S. 209 (2005). The indictment listed fourteen overt 

acts allegedly committed by Petitioner, co-defendant Bailor, or both.

(ECF No. 1 at 2-5.) Petitioner’s participation, which was supported by the 

evidence at trial, was that he participated in a meeting concerning the 

burglary, responded to a call from the co-conspirators requesting bleach, 

drove the co-conspirators back to the pharmacy so blood could be cleaned, 

and received a cut of the burglary proceeds. (ECF No. 1.) 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 44 of 52
Page 45 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

In his affidavit, defense counsel states that he “has no recollection of 

whether or not the jury was given an overt act instruction.” (ECF No. 158-2 

at 2.) Counsel states that the failure to have included same “would be the 

basis for a direct appeal.” (Id.). 

The jury instructions in this case contained no overt act instruction. 

However, a careful reading of the statute cited by Petitioner reveals that no 

such instruction was necessary because Petitioner was subject to the 

statutory punishment even without personally engaging in an overt act. 

The statute requires agreement between two or more persons, but only that 

one or more of such persons engage in an overt act. 18 U.S.C. § 2118(d). 

There was abundant evidence of overt acts performed by other 

conspirators. As such, counsel was not constitutionally ineffective for not

requesting an overt act instruction. 

g. Failure to Request Limiting Instruction

In Petitioner’s final ground for relief, he alleges that counsel was 

constitutionally ineffective when he failed to request a limiting instruction

with regard to the Government’s use of Agent Heath’s testimony to 

impeach Sarah Padgett’s prior statements at the close of trial.

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 45 of 52
Page 46 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

Ms. Padgett, Petitioner’s sister, was the third of the alleged coconspirators to testify. (ECF No. 120 at 221-232.) The Government 

attempted to elicit testimony from her that would corroborate the testimony 

Maxwell and Prather gave the previous day, but Ms. Padgett testified in 

contradiction to her prior proffered statements. She claimed that she had 

lied to investigators about her brother’s involvement, that she had never 

seen him with any pills and she did not call her brother when the stolen 

items were seized from her storage unit. The Government called Agent 

Heath to rebut Ms. Padgett’s prior inconsistent statements. (ECF No. 120 

at 285-302.) Petitioner says that under Federal Rule of Evidence 801(d)(1) 

counsel should have sought a limiting instruction with respect to Heath’s 

testimony that, as part of her proffered statements, Ms. Padgett admitted 

that Petitioner was part of the conspiracy. He argues that Agent Heath’s 

testimony essentially served to vouch for the truthfulness of Ms. Padgett’s 

prior statement, which is impermissible without a limiting instruction. See

United States v. Sisto, 534 F.2d 616 (5th Cir. 1976). 

In Sisto, the defendant had been charged with importation of liquid 

cocaine. A witness testified that the defendant had been given the bottle by 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 46 of 52
Page 47 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

a stranger in the Cali Columbia airport and denied that the man’s travels to 

Columbia involved intent to bring back cocaine. A case agent testified 

about the witness’s prior inconsistent and inculpatory statements. The court 

noted that it was irrefutable that the agent’s testimony was admissible for 

impeachment purposes; the only question was whether the testimony had 

to be accompanied by a limiting instruction. Sisto, 534 F.2d at 622. The 

court noted that the agent’s testimony “was clearly hearsay with regards to 

[defendant's] action, and should not have been considered by the jury as 

direct evidence of [defendant’s] guilt.” Id., 534 F.2d at 623. In that case, 

however, the lack of a limiting instruction was particularly egregious 

because the agent’s testimony provided the only direct evidence of the 

defendant’s knowledge of the contents of the bottle he was transporting, 

and thus “must have been a major factor in the jury’s deliberation.” Id., 534 

F.2d at 625-26. The Fifth Circuit observed that a trial court’s failure sua 

sponte to give a limiting instruction would be plain error only when the 

impeaching evidence is extremely damaging, the need for the instruction is 

obvious, and the remainder of the Government’s case is not strong. Id., 534 

F.2d at 626.

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 47 of 52
Page 48 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

That is not the situation presented in this case. Ms. Padgett’s 

testimony bordered on incredible. The impeaching evidence, while 

damaging, only corroborated testimony offered by other witnesses. 

Agent Heath testified that he sat in on two proffers with Ms. Padgett, 

one before and one after her plea. (ECF No. 120 at 287.) With respect to 

the post-plea proffer, Agent Heath described Ms. Padgett’s apparent 

hesitancy to implicate additional individuals and her admission of her 

brother’s involvement as having been delivered in a “defeatist” tone. (ECF 

No. 120 at 288.) He testified that Ms. Padgett stated that Petitioner had 

provided the bleach for the conspirators to return to the pharmacy and 

clean up, and drove the vehicle back to the pharmacy. Agent Heath also 

testified that he was present at Ms. Padgett’s sentencing hearing, when 

she took the stand and testified, consistently with her proffer to law 

enforcement, that her brother had delivered bleach to the conspirators 

before driving them back to the pharmacy. (ECF No. 120 at 289.) The court 

sustained defense counsel’s objection to Heath being asked whether her 

former testimony was consistent with the testimony she had given at 

Petitioner’s trial. Heath further testified that law enforcement did not merely 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 48 of 52
Page 49 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

accept the conspirators’ statements at face value, but rather that they 

investigated to confirm or corroborate what they had been told. The 

Government introduced phone records for phones affiliated with Christy 

Bailor and Shane Maxwell, which confirmed contact between Bailor and 

Maxwell on October 8 and 9, 2009, and thus provided some corroboration 

of what Bailor and Maxwell had stated during their proffers. (ECF No. 120 

at 290-297.) On cross-examination Heath reiterated that Ms. Padgett had 

implicated her brother and that she had been hesitant to do so. (ECF No. 

120 at 299-302.) 

The substance of this testimony went beyond the question of whether 

Ms. Padgett had given a prior inconsistent statement. Accordingly, Counsel 

was not ineffective for his failure to ask for a limiting instruction.

Conclusion

The Government’s case was not without weaknesses, including its 

own witnesses. However, it did not choose these witnesses. As is true in 

many criminal cases, the only potential witnesses to criminal deeds are 

other individuals who were somehow involved, and thus do not themselves 

have “clean hands.” A judgment of acquittal is not required simply because 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 49 of 52
Page 50 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

the Government’s case relies on “an array of scoundrels, liars and 

brigands” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) 

(internal quotation marks and citation omitted).

For all of the foregoing reasons, the Court concludes that Petitioner

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 

Petitioner’s motion should be denied in its entirety.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings 

provides that A[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 

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 50 of 52
Page 51 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

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 Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set 

Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 145) 

should be DENIED.

2. A Certificate of Appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 22nd day of February, 

2017.

/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 51 of 52
Page 52 of 52

Case Nos.: 4:10cr46/MW/GRJ; 4:13cv687/MW/GRJ

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations 

must be filed within fourteen (14) days after being served a copy 

thereof. Any different deadline that may appear on the electronic 

docket is for the court’s internal use only, and does not control. A 

copy of objections shall be served upon all other parties. If a party 

fails to object to the magistrate judge's findings or recommendations 

as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal 

the district court's order based on the unobjected-to factual and legal 

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

Case 4:10-cr-00046-MW-GRJ Document 188 Filed 02/22/17 Page 52 of 52