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Case Nos. 1:11cr17/MP/GRJ; 1:13cv255/MP/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

vs. Case Nos.: 1:11cr17/MP/GRJ

1:13cv255/MP/GRJ

CHARLES CALVIN FOSTER,

REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s third amended 

“Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 

by a person in Federal Custody.” (ECF No. 83.) The Government has filed 

a response (ECF No. 146) and Petitioner has filed a reply. (ECF No. 150.) 

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, the court concludes that Petitioner’s motion should be denied.

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BACKGROUND

Petitioner Charles Calvin Foster was charged on May 17, 2011 in a 

two-count indictment with possessing a rifle and ammunition as a convicted 

felon in violation of 18 U.S.C. §§ 922(g) and 924(e) (Count One) and 

possession of an unspecified amount of marijuana with intent to distribute 

in violation of 21 U.S.C. § 841(b)(1)(D) (Count Two). (ECF No. 1.) On 

July 28, 2011, the Government filed an information and notice of prior 

convictions indicating that Petitioner previously had been convicted of one 

count of sale of cocaine and one count of purchase of cocaine. (ECF No. 

20.) 

On August 24, 2011, Petitioner entered into a written plea agreement

through which he admitted his guilt to the offense in question, and 

acknowledged that he knew he faced a mandatory minimum term of fifteen 

years imprisonment. (See ECF Nos. 24, 25, 70.) The Factual Basis for the 

Plea stated that law enforcement had observed multiple vehicles visiting 

Petitioner’s residence for short periods of time, consistent with drug 

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transactions. (ECF No. 25.) Several vehicles were stopped after leaving the 

residence and marijuana was recovered. The occupants of the vehicles 

identified Petitioner and his daughter as the source of the marijuana. 

Officers executed a search warrant at the residence and found a firearm in 

his daughter’s bedroom, and other items including marijuana, cash and 

digital scales in the house. Officers learned that a third party had sold the 

firearm to Petitioner for $550. Post-Miranda, Petitioner admitted knowledge 

of the firearm and ammunition and admitted selling marijuana with the 

assistance of family members. (ECF No. 25.)

Petitioner’s Second Final Presentence Investigation Report (“PSR”)

set his base offense level at 26 pursuant to U.S.S.G. § 2K2.1, and added a 

four level adjustment because the possession of the firearm was in 

conjunction with another felony offense. (ECF No. 40, PSR ¶¶ 22, 23.) 

Petitioner was subject to an enhanced penalty under the Armed Career 

Criminal Act (“ACCA”) and thus his offense level with the applicable 

Chapter Four enhancement was 34. (PSR ¶ 28.) The PSR did not specify 

the offenses used to support the ACCA enhancement. Petitioner’s total 

offense level after an adjustment for acceptance of responsibility was 31. 

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(PSR ¶ 30.) Petitioner’s criminal history category was VI, and the 

applicable guidelines range was 188 to 235 months. (PSR ¶¶ 55, 107.) 

The Government filed a motion concerning his substantial assistance. 

(ECF No. 44.)

The court sentenced Petitioner to a term of 150 months in prison, to 

be followed by a five year term of supervised release. (ECF Nos. 51, 62, 

66.) He appealed, challenging the district court’s use of his two prior 

convictions for resisting an officer with violence as ACCA predicates. The 

Eleventh Circuit affirmed. (ECF No. 75); United States v. Foster, 496 F. 

App’x 1 (11th Cir. 2012). The appellate court specifically found that a 

violation of section 843.01, Florida Statutes, constitutes a violent felony 

under both the elements clause and the residual clause of the ACCA. 

(ECF No. 75 at 6.) 

Petitioner timely filed his original motion to vacate (ECF No. 77), and 

it is his third amended motion that is currently pending before the court. 

Petitioner raises five claims of ineffective assistance of counsel, as well as 

a claim that he is actually innocent of the ACCA enhancement. 

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ANALYSIS

General Legal Standards

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). 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 . . . .@ 

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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 relitigated 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) (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 

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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 

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 

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. 

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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 performance was deficient, this 

court must, with much deference, consider Awhether 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 

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(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. 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.

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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, 

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 

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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)).

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 

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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. 

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. 

An evidentiary hearing is unnecessary when Athe motion and files and 

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

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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

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 claims

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1. Failure to Investigate Prior Convictions

Petitioner first contends that defense counsel failed to adequately 

investigate the prior convictions used to support the ACCA enhancement. 

He claims that neither of the two prior convictions for resisting arrest with 

violence were proper predicate offenses, and alternatively that because two 

offenses were consolidated for sentencing and resulted in concurrent 

sentences, they should be counted as only one offense. Neither argument 

has merit.

Petitioner’s argument with respect the resisting arrest with violence 

claims is procedurally barred. As discussed above, on direct appeal, the 

Eleventh Circuit rejected Petitioner’s challenge to the use of these two 

convictions as ACCA predicates, and Petitioner is bound by that 

determination. (ECF No. 75 at 4-6.) 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).

Furthermore, despite Petitioner’s suggestion in his supplemental

brief, the Eleventh Circuit’s conclusion that his convictions for resisting 

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arrest with violence are crimes of violence was not affected by the 

Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 

(2015). 

The statutory definition of a violent felony under the ACCA is an 

offense that either “(i) has as an element the use, attempted use, or 

threatened use of physical force against the person of another [known as 

the elements clause] or (ii) is burglary, arson, or extortion, involves the use 

of explosives [known as the enumerated offenses clause] or otherwise 

involves conduct that presents a serious potential risk of physical injury to 

another [known as the residual clause].” 18 U.S.C. § 924(e)(2)(B)(i) and 

(ii). In Johnson, the Supreme Court ruled that the ACCA’s “residual 

clause” was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. 

Thus, a prior conviction can only qualify as a “violent felony” if it falls within 

the elements clause or is one of the enumerated offenses. The Eleventh 

Circuit noted on direct appeal in Petitioner’s case that his prior convictions 

for resisting arrest with violence were violent offenses under both the 

residual clause and the elements clause. (ECF No. 75 at 5-6.) And, even 

post-Johnson, the Eleventh Circuit has specifically found that a conviction 

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for resisting an officer with violence “categorically qualifies as a violent 

felony under the elements clause of the ACCA.” United States v. Hill, 799 

F.3d 1318, 1321-1323 (11th Cir. 2015).

Petitioner’s 1988 conviction for sale of crack cocaine to a confidential 

source was also properly counted as a predicate offense. A violation of 

Florida Statute § 893.13(1) is both a “serious drug offense” in accordance 

with 18 U.S.C. § 924(e) (2)(A), and a “controlled substance offense,” in 

accordance with U.S.S.G. § 4B1.2(b). United States v. Smith, 775 F.3d 

1262 (11th Cir. 2014). There was no legal basis for counsel to object to the 

consideration of Petitioner’s 1988 conviction for sale of cocaine as an 

ACCA predicate.

Finally, Petitioner’s argument that the two 1988 convictions should 

have been counted as a single predicate is unavailing. Section 924(e)(1) 

requires that the ACCA predicate offenses be “committed on occasions 

different from one another.” The drug offense listed in Paragraph 39 of the 

PSR occurred on February 22, 1988, and the resisting an officer with 

violence took place on September 23, 1988. (ECF No. 40, PSR ¶¶ 39, 

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41.) It makes no difference that Petitioner was sentenced simultaneously 

on the two offenses after violating his probation in the former case. 

Counsel did not perform deficiently by not challenging the three prior 

convictions as the basis for the ACCA enhancement, and Petitioner is not 

entitled to relief. 

2. Failure to Move to Dismiss Count One

Petitioner asserts that counsel was constitutionally ineffective 

because he did not file a motion to suppress and move to dismiss Count 

One of the indictment. As Petitioner was advised during the plea colloquy, 

by pleading guilty he would waive any defense that he had. (ECF No. 70 at 

7-8.) When directly asked by the court, he told the Court that he had no 

complaints with Mr. Johnson’s representation of him. (ECF No. 70 at 22.) 

Furthermore, Petitioner’s guilty plea waives all nonjurisdictional defects in 

the proceedings, including the right to challenge the validity of the search. 

See United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003) (citations 

omitted). 

In any event, to the extent Petitioner suggests that the firearm should 

not have been seized because it was outside the scope of the search 

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warrant, he is mistaken. The search warrant specifically authorized the 

seizure of firearms. (ECF No. 86, Exh. A at 2.) Additionally, both the 

Factual Basis for the Plea (ECF No. 25) and the PSR establish Petitioner’s 

involvement in the negotiations for and purchase of the firearms, which 

affirms that he knowingly and intentionally possessed the firearm. 

Petitioner also appears to claim that he was not a convicted felon. In 

light of Petitioner’s previous conviction of the same offense in this court in 

1996, this claim is spurious. He has not shown that counsel was not 

constitutionally ineffective. 

3. Failure to Challenge Base Offense Level

Petitioner asserts that counsel was constitutionally ineffective 

because he failed to challenge his base offense level of 24. Petitioner’s 

assertion that his base offense level was 24 is incorrect. The PSR reflects 

that his base offense level was 26, pursuant to U.S.S.G. § 2K2.1 because 

the weapon was a “semiautomatic firearm that is capable of accepting a 

large capacity magazine.” (ECF No. 40, PSR ¶ 22.) The assigned base 

offense level was superseded by the base level of 34 which applied due to 

the Chapter Four enhancement because Petitioner used or possessed the 

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firearm in connection with a controlled substance offense. (ECF No. 40, 

PSR ¶ 28.)

Petitioner’s suggestion that “404(b) evidence” was used against him 

is also incorrect. Because he pleaded guilty, there was no trial and no 

404(b) evidence was used against him to prove his guilt. The court advised 

Petitioner at the change of plea proceeding that although Count Two of the 

indictment (the marijuana charges) would be dismissed, the court was “still 

required to take all of the facts pertaining to [his] involvement in this case 

into consideration, including the charge to be dismissed, in determining 

[the] appropriate sentence.” (ECF No. 70 at 13.) Petitioner advised the 

Court that he understood. There was no basis for counsel to make an 

objection to the court’s consideration of either related conduct or past 

similar conduct in fashioning an appropriate sentence in this case. 

Petitioner asserts that one of the agents executing the search warrant 

coerced him to admit that the firearm was his and to “take a fall for” his 

daughter, to whom Petitioner now contends the firearm belonged. This 

contradicts his sworn statement at the plea hearing, in which he admitted 

that the facts as set forth in the signed statement of facts was true. (ECF 

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No. 70 at 14-15.) Petitioner will not now be heard to claim that he has 

sworn falsely. 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, 73B74 (1977); Winthrop-Redin v. United States, 767 

F.3d 1210 (11th Cir. 2014) (citing Blackledge). This is because solemn 

declarations made under oath in open court carry a strong presumption of 

verity. Blackledge, 431 U.S. at 73B74; 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 73B74; 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 Abears 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 

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

Cir. 2007). A[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)). There is no 

basis for relief in this case.

4. Ineffective Assistance of Counsel at Sentencing

Petitioner’s fourth claim is also related to the application of the ACCA 

enhancement. Petitioner contends that counsel was constitutionally 

ineffective because he did not object to the armed career criminal 

designation, citing Apprendi v. New Jersey, 530 U.S. 466 (2000) and 

Blakely v. Washington, 542 U.S. 296 (2005), which are inapposite here. 

Counsel did object to Petitioner’s classification as an armed career 

criminal, recognizing that binding circuit precedent foreclosed his claim. 

(ECF No. 66 at 2-3.) 

Petitioner’s argument that counsel was ineffective for not arguing that 

one of the ACCA predicates was not a felony because he only served 10 

months of a 30 month sentence also has no merit. Regardless of the time 

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actually served, an offense is designated as a felony if it is punishable by a 

sentence of more than one year. See 18 U.S.C. 3581(b); 21 U.S.C. §

802(44); 18 U.S.C. § 924(e)(2)(B). The fact that a 30 month sentence was 

imposed in Petitioner’s case is alone sufficient to establish that the crime 

was a felony.

Petitioner’s reiteration of arguments previously raised regarding the 

propriety of considering his past offenses as ACCA predicates continue to 

be without merit. His argument that he possessed the firearm for only a few 

hours, and therefore his actions were not “in the heartland of those the law 

was designed to punish and deter” could have been raised in Petitioner’s 

own statement to the sentencing court. (ECF No. 23-24.)1 Indeed counsel 

stated in addressing the court that it did not appear that Petitioner 

possessed the firearm for any prolonged period of time, or for very long 

before the search was executed. (ECF No. 66 at 10.). As such, Petitioner 

has not shown that counsel was constitutionally ineffective.

 

1 The eloquence of Petitioner’s statement to the court resulted in the court reducing his 

sentence 30 months below the 180 month sentence initially imposed. (See ECF No. 

66 at 25; ECF No. 49).

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5. Failure to Challenge Prior Felony Convictions

Again, Petitioner contends that counsel was constitutionally 

ineffective because he did not challenge the use of his prior convictions for 

resisting with violence and sale of cocaine as ACCA predicates. 

Petitioner’s assertions have no merit for the reasons discussed above and 

therefore, Petitioner is not entitled to relief on this claim. 

6. Actual Innocence

Petitioner’s last claim for relief is that he is actually innocent of the 

ACCA enhancement. As discussed above, this claim is factually and 

legally deficient and therefore Petitioner is not entitled to relief. 

Conclusion

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.

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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.

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Based on the foregoing, it is respectfully RECOMMENDED:

1. The third amended “Motion under 28 U.S.C. § 2255 to Vacate, 

Set Aside, or Correct Sentence by a person in Federal Custody” (ECF No. 

83) should be DENIED.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 14th day of November 

2016.

 

/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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.

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