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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.: 5:11cr23/MW/GRJ

5:14cv138/MW/GRJ

JACK ALLEN KELLY,

REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s “Motion under 28 

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in 

Federal Custody,” a Revised Memorandum of Law, and additional evidence 

(ECF Nos. 560, 572, 574, 576.) The Government has filed a response 

(ECF No. 578) and Petitioner has filed a reply. (ECF No. 581.) 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 review of the record and the arguments 

presented, the Court concludes that Petitioner has not raised any issue 

requiring an evidentiary hearing and that the § 2255 motion should be 

denied. See Rules 8(a) and (b) Governing Section 2255 Cases. 
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BACKGROUND

Petitioner was charged via a criminal complaint with a single count of 

knowingly and intentionally possessing with intent to distribute in excess of 

500 grams of a mixture and substance containing methamphetamine. 

(ECF No. 1, 2.) Four days later the Government filed an amended 

criminal complaint that broadened the date range of the offense. (ECF 

Nos. 6, 7.) 

On June 22, 2011, a federal grand jury returned a 16-count 

indictment charging Petitioner with conspiracy to distribute and possess 

with intent to distribute 500 grams or more of a substance containing a 

detectable amount of methamphetamine and 50 grams or more of 

methamphetamine (Count One); three counts of distribution and 

possession with intent to distribute methamphetamine (Counts Three, Five 

and Eleven); and a single count charging Petitioner with possession of a 

firearm by a convicted felon (Count Twelve). (ECF Nos. 113, 114.) 

Represented by appointed counsel Tanya Higgins, Esq., Petitioner entered 

a not guilty plea on June 28, 2011 before Magistrate Judge Bodiford, (ECF 

No. 172). Petitioner repeatedly expressed his desire to plead guilty, but 
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both the Court and counsel informed him that he would have to do so 

before United States District Judge Richard Smoak, rather than before 

Magistrate Judge Bodiford. (ECF No. 504 at 2-3.) Shortly thereafter 

Petitioner retained Steven Glazer, Esq., to represent him. (ECF Nos. 192-

195.) 

On August 2, 2011, the Government filed an Enhancement 

Information under 21 U.S.C. § 851, noting its intent to seek enhanced 

penalties under 21 U.S.C. § 841 due to Petitioner’s prior drug conviction. 

(ECF Nos. 218, 223.)1

 Petitioner previously had been convicted in this 

Court of conspiracy to possess with intent to distribute methamphetamine 

and amphetamine in Case No. 5:99cr15/SPM, and sentenced to a term of 

60 months imprisonment. (ECF No. 223-1 at 2.) The Government’s 

notice provided that as a result of Petitioner’s prior conviction, he would be 

subject to a mandatory minimum of twenty years’ imprisonment on Count

One, and a maximum of thirty years’ imprisonment on Counts Three, Five 

and Eleven. (Id.)

 

1 These appear to be identical copies of the same document. 
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Two days later, on August 4, 2011, Petitioner entered a guilty plea 

before Judge Smoak as to Counts One and Twelve of the indictment 

pursuant to a written plea and cooperation agreement and statement of 

facts. (ECF Nos. 228, 229, 230, 450.) Counts Three, Five and Eleven 

were dismissed on the Government’s motion. (ECF Nos. 230, 231.) The 

written plea agreement, which was signed two days after the Government 

filed the Enhancement Information, did not acknowledge the existence of 

the enhancement in any fashion. The plea agreement simply provided 

that Petitioner faced a mandatory minimum of ten years imprisonment up to 

a maximum of life imprisonment as to Count One and a maximum term of 

ten years imprisonment as to Count Twelve. (ECF No. 228 at 1.) 

At the change of plea hearing the court asked Petitioner whether he 

knew that, as to Count one, “the Government has provided notice that it 

may seek an enhanced sentence because of your prior felony conviction.” 

(ECF No. 450 at 7.) Petitioner responded “Yes, sir.” (ECF No. 450 at 8.) 

The Court then advised Petitioner about the difference in the sentence he 

faced, depending on whether the enhancement applied. The Court 

explained that with the enhancement, Petitioner was subject to a 
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mandatory minimum term of twenty years in prison on Count One, but that 

if an enhanced sentence was not appropriate, he would face a mandatory 

minimum term of ten years in prison. (Id.) The court also informed

Petitioner that he faced a maximum term of ten years imprisonment on

Count Twelve. (Id.) After stating the possible sentences, the court 

specifically and directly asked if Petitioner understood that the sentence he 

faced depended upon whether his sentence was enhanced. He

responded that he did. (Id.) Petitioner agreed that the agreement 

represented his entire agreement with the Government and that there were 

no secret or undisclosed promises. (ECF No. 450 at 12.) Counsel also 

specifically assured the Court that he had discussed the enhancement 

information with his client and shown it to him, and that Petitioner 

understood it. (ECF No. 450 at 13-14.)2 No one directed the Court’s 

attention to the fact that the plea and cooperation agreement did not 

mention the enhancement, and neither party made any objection to either 

 

2 Counsel noted Petitioner’s understanding that there was the possibility of a 5K1. 

(ECF No. 450 at 14). The possibility of a 5K1 discredits the advice Petitioner claims to 

have received from a jailhouse lawyer that he had “absolutely nothing to lose putting the 

Government to its burden of proof at trial.” (ECF No. 574 at 4.) Petitioner could not 

have simultaneously contested his guilt and cooperated with the Government. 

Ultimately, Petitioner did not receive the benefit of either a 5K1 or Rule 35 motion.
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this omission or the discussion of the enhancement. And, Petitioner did 

not advise the Court of what he now claims, that he understood that his 

sentence would not be enhanced if the court accepted the plea agreement. 

(ECF No. 574 at 6.)

The Final Presentence Investigation Report (“Final PSR”) used at 

Petitioner’s October 19, 2011, sentencing reflected a total offense level of 

31 and a criminal history category of II. (ECF No. 308.) This report also 

reflected a minimum term of imprisonment of 20 years as to Count One and 

a maximum term of imprisonment of 20 years as to Count Twelve.

3

 (ECF 

No. 308, Final PSR at ¶¶ 211-212.) The statutory minimum trumped the 

applicable guideline range of 121 to 151 months, and the court sentenced 

Petitioner to a term of 240 months imprisonment as to each count, to run 

concurrently. (ECF Nos. 353, 354; ECF No. 451 at 14.) 

Petitioner filed a timely notice of appeal on October 31, 2011, and 

CJA attorney Barbara Sanders was appointed to represent him. On 

February 14, 2012, he filed an unopposed motion for relinquishment of 

jurisdiction and remand for resentencing because the statutory maximum 

 

3 Neither attorney brought this error in the statutory maximum to the attention of the 

court at the time.
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sentence for Count Twelve was ten years, as had been stated at 

Petitioner’s change of plea, not the twenty year term reflected in the PSR. 

On March 27, 2012, the Eleventh Circuit vacated Petitioner’s sentences 

and remanded for resentencing. (ECF No. 507.) The remand order left 

to the district court’s discretion “[t]he decisions as to whether to conduct a 

resentencing hearing and as to the scope of the hearing.” (ECF No. 507 

at 1.)

Ms. Sanders continued to represent Petitioner before the district court

after remand. (ECF No. 508.) The Probation Office prepared a second 

revised Final Presentence Investigation Report, which corrected the error in 

the statutory maximum sentence as to Count Twelve. (ECF No. 509, 

Second Final PSR ¶¶ 212, 213). Petitioner filed numerous objections and 

argued that a full sentencing hearing was necessary to consider multiple 

issues, including whether the sentencing enhancement should apply to him 

in light of the omission of any reference to it in the plea agreement. (See 

ECF No. 522, Third Final PSR ¶ 250.) The Court scheduled the case for 

resentencing. (ECF No. 517.)
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At resentencing, the defense argued that the Court was not bound by 

the enhanced statutory minimum because the written terms of the plea 

agreement did not mention the possible enhancement. (ECF No. 539 at 

3-9.)4 The Government, on the other hand, characterized the omission of 

the enhancement language from the plea agreement as a “typographical 

error,” and noted that the issue had not been raised previously, either at the 

initial sentencing or on appeal. (ECF No. 539 at 12.) AUSA Littleton 

argued that “no one was every under any impression that the Government 

was going to do anything but file an enhancement information” in light of 

Petitioner’s prior federal methamphetamine conviction. (Id.) Defense 

counsel Ms. Sanders objected to this, stating that she was there “on a 

contract case” and that parole evidence should not be used to vary the 

terms of the contract. (ECF No. 539 at 13.) The court reviewed the plea 

colloquy and the contents of the PSR, and the parties agreed that there 

was no dispute that the enhancement was legally appropriate. In light of 

the lack of prior objection, the Court declined to revisit the application of the 

 

4 Counsel did not present the contention that Petitioner now makes, that his prior 

attorney, Mr. Glazier, had specifically told him that if the court accepted the plea 

agreement that the enhancement would not apply. (ECF No. 574 at 6.)
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enhancement, and it rejected defense counsel’s argument that the 

omission meant the enhancement was “withdrawn in the plea agreement.” 

(ECF No. 539 at 20-21.) The Court stated that the mere fact that the 

enhancement was not included in the written document was insufficient as 

“something more than just silence” would be required to properly withdraw 

it. (ECF No. 539 at 21.) The Court sentenced Petitioner to a term of 240 

months as to Count One and 120 months as to Count Twelve, to be served 

concurrently. (ECF No. 539 at 42.) 

After the court pronounced Petitioner’s revised sentence, the 

Government asked for record clarification about what Petitioner’s sentence 

might be if the enhancement were found to be inapplicable for any reason. 

(ECF No. 539 at 46.) The Court stated that it could not think of any 

reason that the sentence, which was appropriate when taking into account 

the § 3553 factors, would change, but then stated that it was more prudent 

not to speculate and engage in hypotheticals. (ECF No. 539 at 47-48.) 

Petitioner appealed a second time, still represented by Ms. Sanders. 

He argued that the district court was mistaken when it concluded that the 

plain language of the plea agreement allowed the Government to seek a 
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sentencing enhancement on his drug conspiracy charge and when it failed 

to sentence him below the statutory maximum on Count Twelve, the gun 

charge. (ECF No. 549 at 2.) The Eleventh Circuit found no error in the 

application of the § 851 enhancement. The Eleventh Circuit panel stated 

that “[n]othing in Kelly’s plea agreement relieved the district court of its 

statutory obligation to impose the mandatory minimum sentence, nor could 

it.” (ECF No. 549 at 8, n. 2, citing United States v. Clark, 274 F. 3d 1325, 

1328 (11th Cir. 2001).) The court further stated that there was nothing in 

the plea agreement that would have made it reasonable for Kelly to believe 

that he would not be subject to the § 851 enhancement, if the court 

determined the information in the enhancement information was accurate. 

(ECF No. 549 at 8, n2.) The Eleventh Circuit noted that this was so 

“because Kelly’s plea agreement never mentioned the previously filed 

enhancement notice but instead expressly provided for the possibility of 

‘any mandatory minimum sentence prescribed by statute for the offense,’” 

and the agreement also included an integration clause providing that there 

were no other agreements between the parties. (Id., citing United States 

v. Al-Arian, 514 F.3d 1184, 1192-93 (11th Cir. 2008).) The Eleventh 
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Circuit also found that Petitioner’s guideline sentence on Count Twelve was 

substantively reasonable. (ECF No. 549 at 10.)

Petitioner timely filed a motion to vacate raising two claims related to 

the application of the enhancement. As relief, he seeks resentencing 

without the § 851 enhancement. The Government opposes the motion.

ANALYSIS

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 
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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 

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@). 
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Because a motion to vacate under section 2255 is not a substitute for 

direct appeal, issues which could have been raised on direct appeal are 

generally not actionable in a section 2255 motion and will be considered 

procedurally barred. Lynn, 365 F.3d at 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 

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, 
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365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel 

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

Ineffective assistance of counsel claims are generally not cognizable 

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

whether they could have been brought on direct appeal. Massaro v. 

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

Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 

1249, 1257 n.5 (11th Cir. 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 
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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 

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 
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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 

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., 
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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 

not required to establish prejudice, as Aany amount of actual jail time has

Sixth Amendment significance.@ Id. at 203.

To establish ineffective assistance, a 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 
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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)). 

Furthermore, counsel is not constitutionally deficient for failing to preserve 

or argue a meritless claim. Denson v. United States, 804 F.3d 1339, 1342 

(11th Cir. 2015) (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).

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 
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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. 

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. 
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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, 786 F.3d at 877; 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. 
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Petitioner’s claims for relief

As noted supra, both of Petitioner’s claims relate to the application of 

the § 851 enhancement. First, he argues that trial counsel Steven Glazer

was constitutionally ineffective because he did not argue either that the 

district court modified the plea agreement by applying the enhancement, or 

that the Government breached the plea agreement by acquiescing to the 

alleged modification. Next he argues that appellate counsel was 

constitutionally ineffective because she did not make these arguments on 

appeal. 

The Government responds that Petitioner is merely attempting to 

attack the application of the § 851 enhancement, the propriety of which was 

already unequivocally approved by the Eleventh Circuit on appeal. The 

Government further maintains that even if the precise issues Petitioner 

raises were not determined on direct appeal, neither defense attorney 

acted in an objectively unreasonable manner, and Petitioner was not 

prejudiced. The Government asserts that at the plea hearing all parties 

were fully aware that the enhancement applied, and therefore the plea 

agreement was neither breached nor modified.
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In his reply, Petitioner insists that the arguments he now raises are 

different from those resolved on direct appeal. He seeks to challenge the 

effectiveness of his counsel in the manner in which counsel raised, or did 

not raise, the propriety of the enhancement. See Gerrow v. United States, 

140 F. App’x 182, 183 (11th Cir. 2005) (litigant may challenge the 

effectiveness in which counsel litigated a matter on direct appeal). 

Petitioner contrasts his constitutional claim that the plea agreement had 

been modified and breached in violation of the Fifth Amendment Due 

Process Clause with the statutory/jurisdictional claim decided by the 

appellate court. (ECF No. 581 at 4.) He also maintains that the Eleventh 

Circuit’s statement with respect to the district court’s statutory obligation to 

impose the mandatory minimum sentence was nothing more than pure 

dictum and does not control the outcome of this motion. (ECF No. 581 at 

5; ECF No. 549 at 8 n.2.)

In deciding this case the Court must consider first, whether 

Petitioner’s claims were resolved on direct appeal as claimed by the 

Government. Petitioner’s plea agreement contained a clause stating that 

the parties agreed that “the District Court’s discretion in imposing sentence 
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is limited only by the statutory offense maximum sentence and any 

mandatory minimum sentence prescribed by statute for the offense.” 

(ECF No. 228 at 2.) The Eleventh Circuit cited this clause and noted that 

the agreement also contained an integration clause stating that there were 

no other agreements between the parties. (ECF No. 549 at 8 n.2; ECF 

No. 228 at 5). Petitioner argues that this language cannot be used to 

supplant or obviate the Government’s obligation under contract law and the 

Due Process Clause to include the § 851 enhancement in the plea 

agreement. (ECF No. 228 at 7.) He also notes that the “any mandatory 

minimum sentence” language is “boilerplate” language the Government 

uses in every plea agreement, and cites the plea agreements of his 

codefendants as examples. (See ECF Nos. 203, 207, 233, 238, 253, 258, 

262, 267, 330.) The mere fact that something is “boilerplate” language 

does not render it meaningless or ineffectual. To the extent Petitioner 

disagrees with the Eleventh Circuit’s analysis of his claim on appeal, a 

motion under 28 U.S.C. § 2255 is not the proper vehicle for challenging 

such. Nonetheless, the court concurs that, while the propriety of the 

enhancement was considered on appeal, the precise claims raised in the 
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instant motion were not. Therefore, the court must consider whether 

either Mr. Glazer or Ms. Sanders or both were constitutionally ineffective in 

the manner in which each chose to handle the matter of the enhancement. 

Petitioner claims that the performance of attorney Glazer, who 

represented him at the plea and sentencing, was patently unreasonable. 

Petitioner attempts to prove the “modification” of the agreement by 

explaining his understanding of the proceedings. Mr. Glazer allegedly

conveyed to Petitioner that the omission of the § 851 language from the 

plea agreement was the direct result of a fruitful negotiation between him 

and AUSA Littleton. (ECF No. 581 at 10.) Mr. Glazer also told Petitioner 

that if the district court accepted the plea agreement that it could not 

enhance his sentence pursuant to § 851. (ECF No. 574 at 6.) As such, 

Petitioner states that he reasonably understood from the omission of the 

enhancement that he would not be subject to a mandatory minimum of 

twenty years imprisonment. (ECF No. 581 at 10.) The Court concludes 

that such an understanding is not reasonable under the circumstances of 

this case. Petitioner had been in federal court before, and he has 

demonstrated himself to be intelligent and articulate throughout the 
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proceedings. If he was entering his plea based on a belief that the court 

would not impose an enhanced statutory mandatory minimum, it defies 

reason that he would not have raised questions about this at the plea 

colloquy. Despite the court’s numerous references to the possible 

enhancement, Petitioner never objected or asked for clarification. 

In a further attempt to bolster his position, Petitioner focuses on the 

court’s specific choice of the word “may” during the colloquy. Specifically, 

the court stated that the Government had provided notice that it “may seek 

an enhanced sentence.” He surmises that this meant that the Court was 

unsure of whether the Government still intended to pursue an 

enhancement because reference to the enhancement was not included in 

the plea agreement. (ECF No. 581 at 11.) This conclusion is pure 

speculation. If the Court had noticed the omission of the § 851 

enhancement from the written document, there is no reason it would not 

have been specifically mentioned. More significantly, this argument

contradicts Petitioner’s proferred understanding as set forth in his affidavit 

that his sentence “could not” be enhanced if the court accepted the plea 

agreement. (ECF No. 574 at 6.) 
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Petitioner maintains that an unqualified integration clause5 precludes 

any claim by a defendant that an agreement or understanding existed 

between the parties that was not memorialized in the plea agreement itself, 

irrespective of what his unrefuted understanding was. Al-Arian, 514 F.3d 

at 1193. Although Petitioner claims Al-Arian supports his position, the 

holding applies with equal, if not greater, force to refute his claim. The fact 

that the § 851 enhancement was not mentioned in the agreement was not 

proof that the parties had separately agreed that it would not apply.

Petitioner claims that he was prejudiced by Glazer’s performance 

because had he objected, Petitioner would have been sentenced without 

the enhancement. (ECF No. 581 at 15.) That is clearly not so. The more 

likely scenario, if there had been an objection, is that the Court would have 

considered allowing Petitioner to withdraw his plea. However, in light of 

Petitioner’s cooperation from “virtually the minute he was arrested” and his 

cooperation with law enforcement, he potentially had a lot to lose by going 

to trial, contrary to the advice allegedly provided by the “jailhouse lawyer” 

 

5 The integration clause in Al-Arian stated that the “plea agreement constitutes the 

entire agreement between the government and the defendant ... and no other promises, 

agreements, or representations exist or have been made to the defendant or 

defendant's attorney with regard to such guilty plea.” Al-Arian, 514 F. 3d at 1187.
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referenced in Petitioner’s affidavit. (ECF No. 574 at 4; ECF No. 451 at 10-

11.) Had Petitioner put the Government to its burden of proof at trial, he 

was all but guaranteed not to receive a substantial assistance motion. 

Notwithstanding the fact that the Rule 35 did not ultimately come to fruition, 

in light of his cooperation, Petitioner faced a greater sentencing risk by 

going to trial. 

Further weakening Petitioner’s claim that the plea agreement was 

modified or breached is the fact that when Petitioner was given the 

opportunity to address the Court at sentencing, which he did at length, he 

made no mention of his alleged understanding that the enhancement would 

not apply. (ECF No. 451 at 3-4, 8-10.) Petitioner’s after the fact 

comparison of specific language used during his plea colloquy vis-à-vis that 

of his co-defendants in order to establish what he knew at the time is not 

persuasive. Finally there is nothing in the record that suggests he told his 

subsequent attorney, Ms. Sanders, about his “understanding” of the plea 

agreement. Ms. Sanders never broached this topic with the Court, and 

Petitioner has not complained of her failure to do so. 
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While the Government admittedly failed to incorporate specific 

reference to the enhancement in the written plea agreement, Petitioner has 

not established constitutionally deficient performance under Strickland. 

Petitioner was told by the Court that he faced a possible enhanced 

sentence and what the minimum mandatory sentence would be under the 

enhancement. Petitioner was hoping to receive the benefit of a 

substantial assistance motion, and in fact, his failure to receive a 5K1 

motion was the subject of his initial appeal. (See ECF No. 549 at 4.) The 

record neither factually nor legally supports Petitioner’s assertion that his 

plea agreement was either breached or modified. He has not shown that 

he was prejudiced by attorney Glazer’s failure to object, as counsel is not 

constitutionally deficient for failing to make a meritless objection. See, 

e.g., Denson, 804 F.3d at 1342 (citing Freeman, 536 F.3d at 1233; 

Lattimore, 345 F. App=x at 508; Brownlee, 306 F.3d at 1066; Jackson, 42 

F.3d at 1359; Winfield, 960 F.2d at 974.

Petitioner also faults the performance of Ms. Sanders. Ms. Sanders, 

represented Petitioner on direct appeal, upon resentencing, and again on 

appeal after resentencing. Unlike Mr. Glazer, who did not raise the issue 
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of the Government’s omission of the § 851 enhancement from the written 

plea agreement, Ms. Sanders argued vigorously in her client’s behalf. 

She sought to have the enhancement issue revisited at resentencing as 

well as challenging the application of the enhancement on appeal. The 

fact that her hard-fought arguments were unsuccessful does not render her 

performance constitutionally ineffective. Regardless of whether a different 

attorney might have made a different argument and achieved a different 

outcome, the Court cannot say that no reasonable lawyer would have acted 

in the circumstances as Ms. Sanders acted. See Dingle, 480 F.3d at 

1099; Williamson, 221 F.3d at 1180. Nor was her approach >so patently 

unreasonable that no competent attorney would have chosen it.=@ Dingle, 

480 F.3d at 1099 (quoting Adams, 709 F.2d at 1445). In short, Petitioner 

has not shown constitutionally deficient performance under Strickland. 

Conclusion

For all of the foregoing reasons, the Court finds 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 
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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 “[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 
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by either party, that party may bring this argument to the attention of the 

district judge in the objections permitted to this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED that:

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

Correct Sentence by a person in Federal Custody” (ECF No. 560) should 

be DENIED.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 5th day of June, 2017.

/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.