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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 5:11cr18/RS/EMT

5:12cv215/RS/EMT

RICHARD SAMUEL CRUDGINGTON

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255 (doc. 57). The Government has filed a response (doc. 61)

and Defendant has not filed a reply, despite having been afforded the opportunity to do so (doc. 62). 

The case was referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see

also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a careful review of the record and the

arguments presented, it is the opinion of the undersigned that Defendant has not raised any issue

requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules 8(a) and

(b) of the Rules Governing Section 2255 Cases. 

PROCEDURAL BACKGROUND1

Defendant pleaded guilty as charged to a three-count indictment charging him with one count

of dealing in firearms without a license and two counts of selling a firearm or ammunition to a

person he knew to be a convicted felon (doc. 13–15, 45). He was sentenced at the low end of the

applicable guidelines range to concurrent terms of 30-months imprisonment on each count (docs.

1

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

Report (doc. 20) and the Eleventh Circuit’s opinion on appeal, and will be set forth herein only as necessary for the

court’s consideration of the claim raised in the instant motion. 

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22, 46). The Eleventh Circuit affirmed on April 11, 2012 (doc. 54), and the instant motion was

timely filed pursuant to the prison mailbox rule on June 21, 2012 (doc. 57 at 5).2 Defendant raises

a single ground for relief in his motion. He contends that counsel was constituionally ineffective

because he failed to inquire as to the status of Defendant’s substantial assistance motion at

sentencing. The Government opposes Defendant’s motion.

LEGAL ANALYSIS

General Standard of Review

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).

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). With regard to the prejudice requirement, defendant must establish

that, but for counsel’s deficient performance, the outcome of the proceeding would have been

2

 Bureau of Prisons records indicate that Defendant was released on January 27, 2014. See

www.bop.gov/inmateloc/. Defendant has not updated his address with the court. The court notes that although

Defendant is no longer incarcerated this case is not moot. Once attached, federal jurisdiction is not automatically

defeated by the release of a defendant before the section 2255 motion is resolved. See Carafas v. LaVallee, 391 U.S.

234, 238 (1968). For instance, if a defendant is serving a term of supervised release, he is still subject to restrictions on

his liberty which could be affected if he prevails in an action challenging his conviction and sentence. See Dawson v.

Scott, 50 F.3d 884, 886 n.2 (11th Cir. 1995) (citing Jago v. Van Curen, 454 U.S. 14, 21 n.3 (1981) (per curiam); United

States v. Eske, 925 F.2d 205, 206 n.2 (7th Cir.1991)); Cleckler v. United States, 410 F. App’x 279 (11th Cir. 2011)

(citing Dawson). Defendant’s sentence in this case included a three-year term of supervised release (see doc. 22), and

as such the instant motion is not moot. 

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different. Strickland, 466 U.S. at 694. 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.

Ground One

Defendant contends that, pursuant to the terms of his plea agreement, the Government was

obligated to file a substantial assistance motion if Defendant cooperated with the Government (see

doc. 13). He claims that counsel was constitutionally ineffective for not “inquiring as to the status

of” this motion at sentencing in light of the fact that Defendant did in fact provide substantial

assistance in accordance with the plea and cooperation agreement. 

Defendant’s plea agreement stated that “[i]f, in the sole discretion of the United States

Attorney, the Defendant is deemed to have provided substantial assistance in the investigation or

prosecution of others . . . [t]he United States will file a substantial assistance motion” (doc. 13 at

6). Defendant stated under oath that the plea and cooperation agreement represented his complete

agreement with the Government and that there were no secret or undisclosed promises (doc. 45 at

12–13). 

At sentencing, the Government told the court that although Defendant had immediately

accepted responsibility for his actions and indicated his intent to plead guilty, Defendant did not

qualify for a 5K motion because he did not “know anybody else in the business” (doc. 46 at 15). 

The Government now states that counsel’s performance was neither negligent nor unreasonable as

no inquiry from counsel would have changed its position as to whether a substantial assistance

motion was warranted. 

The decision to file a 5K1 motion is a matter of prosecutorial discretion. United States v.

Nealy, 232 F.3d 825, 831 (11th Cir. 2000); United States v. Orozco, 160 F.3d 1309, 1315 (11th Cir.

1998); United States v. Forney, 9 F.3d 1492, 1501 (11th Cir. 1993). The government has a power,

not a duty, to file such a motion when a defendant has substantially assisted. Wade v. United States,

504 U.S. 181, 185 (1992) (analyzing substantial assistance motions under § 5K1.1 and 18 U.S.C.

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§ 3553(e)); United States v. Dorsey, 554 F.3d 958, 960–61 (11th Cir. 2009) (quoting Forney, 9 F.3d

at 1500); see also United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (applying Wade

to Rule 35(b) motions). Even plea agreements that require the government to consider whether the

aid to the prosecution constitutes substantial assistance do not create a contractual duty to file a 5K1

motion. Forney, 9 F.3d at 1499–1500. Judicial review of a decision not to file a 5K1 motion is

appropriate only where there is an allegation and substantial showing that the prosecution refused

to file a substantial assistance motion because of a constitutionally impermissible motivation, such

as race or religion. Wade, 504 U.S. at 185–86; Dorsey, 554 F.3d at 961; Nealy, 232 F.3d at 831. 

A defendant who merely claims to have provided substantial assistance, as Defendant claims in this

case, or who makes only generalized allegations of an improper motive, is not entitled to a remedy

or even to an evidentiary hearing. Wade, 504 U.S. at 186. Judicial review is appropriate only

“when there is an allegation and a substantial showing that the prosecution refused to file a

substantial assistance motion because of a constitutionally impermissible motivation.” Dorsey, 554

F.3d at 961 (quoting Forney, 9 F.3d at 1502). 

Filing of a certification of substantial assistance generally signifies that a defendant’s

assistance has yielded actual, useful results, not merely that the defendant made a substantial good

faith effort in his or her attempts to assist. See United States v. Gonsalves, 121 F.3d 1416, 1419

(11th Cir. 1997) (citation omitted). “The substantial assistance regime is not a spoils system

designed simply to reward a cooperative defendant; it is designed to benefit the government in its

prosecution efforts.” Orozco, 160 F.3d at 1315. A defendant’s disappointment that his or her

cooperation did not rise to the level of substantial assistance, which appears to be the situation in

this case, does not alone warrant a finding that the motion should have been filed. Thus, Defendant

has not shown through his conclusory assertions about his cooperation that counsel was

constitutionally ineffective for his failure to inquire further into the Government’s decision not to

file a substantial assistance motion. The § 2255 motion should be denied.

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

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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:

1. The motion to vacate, set aside, or correct sentence (doc. 57) be DENIED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 10th day of October 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.: 5:11cr18/RS/EMT; 5:12cv215/RS/EMT

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