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1

 The facts stated herein are those presented at trial and viewed in the light most favorable to the

prosecution. Due process requires the government to prove each element of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When a court examines

the sufficiency of the evidence on review, the role of the court is not to reweigh the evidence or to determine

whether the evidence established guilt beyond a reasonable doubt. Id. at 319. Where there are conflicting

inferences and disputes exist, this Court must presume that the jury resolved such conflicts in favor of the

prosecution, and must defer to that resolution. Martin v. State of Alabama, 730 F.2d 721,724 (11th Cir. 1984).

Although this court is not called on to address directly the sufficiency of the evidence, the evidence presented

to the jury plays a major part in the court’s analysis.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. No. 3:01cr90/RV

3:03cv357/RV/MD

KENNETH WAYNE SINKFIELD

_____________________________________________________________________

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. 61). The government has

responded (doc. 63), and defendant has replied (doc. 65). The court held an

evidentiary hearing on December 14, 2004 on defendant’s first ground for relief, as

discussed below. (Transcript Doc. 70). After a careful review of the record and the

arguments presented, it is the opinion of the undersigned that the motion should be

denied.

BACKGROUND1

Defendant, a convicted felon, was charged with possessing a firearm on the

night of April 8, 2001. One Dedrick Geter had gone to the home of William Sinkfield,

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defendant’s father, where defendant was staying, looking for defendant concerning

a drug deal gone bad. Mr. Geter wanted money, and told William Sinkfield that he

wanted to talk to the defendant. After heated discussion between William Sinkfield

and Mr. Geter, the elder Sinkfield went into the house to awaken his son. The

testimony was somewhat confusing, but at some point the defendant came out of

the house armed with a handgun, as did his father. William Sinkfield fired a round

into the ground and the defendant fired two shots at Mr. Geter as he ran away. That

defendant possessed a firearm was never disputed.

Defendant based his defense on a justification claim, maintaining that the

firearm belonged to his father, and that he picked it up and fired it into the ground

(but not at Mr. Geter) in self-defense and in defense of his father because there was

reasonable cause to believe that his or his father’s life was in danger. The jury

found him guilty as charged. His appeal was unsuccessful, and he now brings this

§ 2255 motion claiming ineffective assistance of counsel.

LEGAL ANALYSIS

A. Section 2255 review.

Because collateral review is not a substitute for direct appeal, 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. 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199

(11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). As

recently explained by the Eleventh Circuit, “[r]elief 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,

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1232 (11th Cir. 2004) (citations omitted). “[A] non-constitutional error that may justify

reversal on direct appeal does not generally support a collateral attack on a final

judgment, unless the error (1) could not have been raised on direct appeal and (2)

would, if condoned, result in a complete miscarriage of justice.” Lynn, 365 F.3d at

1232-33 (citations omitted); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7

L.Ed.2d 417 (1962) (error of law does not provide basis for collateral attack unless

claimed error constituted a “fundamental defect which inherently results in a

complete miscarriage of justice.”). The “fundamental miscarriage of justice”

exception recognized in Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2678, 2649,

91 L. Ed. 2d 397 (1986), provides that it must be shown that the alleged constitutional

violation “has probably resulted in the conviction of one who is actually innocent.

. . .” 

B. Ineffective assistance of counsel.

Defendant’s grounds for relief rely on his claim that his counsel was

ineffective, thereby depriving him of his constitutionally guaranteed right to counsel.

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,

123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003); see also United States v. Bender, 290

F.3d 1279, 1284 (11th Cir. 2002); United States v. Jiminez, 983 F.2d 1020, 1022, n. 1

(11th Cir. 1993). To show a violation of his constitutional right to counsel, 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, 104 S.Ct. 2052, 2064, 80 L.Ed.2d (1984);

Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000).

In applying Strickland, the court may dispose of an ineffective assistance claim if

defendant fails to carry his burden on either of the two prongs. 466 U.S. at 697, 104

S.Ct. at 2069. 

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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.” Id. at 688, 104 S.Ct. at 2065; see Atkins v.

Singletary, 965 F.2d 952 (11th Cir. 1992). “[R]eviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonably

professional assistance.” Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990) (citing

Harich v. Dugger, 844 F.2d 1464, 1469 (11th Cir. 1988); Chandler v. United States, 218

F.3d 1305, 1314 (11th Cir. 2000); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir.

1989) (emphasizing that petitioner was “not entitled to error-free representation”)).

Counsel’s performance must be evaluated with a high degree of deference and

without the distorting effects of hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at

2065. 

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, 104 S.Ct. at 2068. For the court to focus

merely on “outcome determination,” however, is insufficient; “[t]o set aside a

conviction or sentence solely because the outcome would have been different but

for counsel’s error may grant the defendant a windfall to which the law does not

entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d

180 (1993). Defendant therefore must establish “that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). To esta blis h

ineffective assistance, defendant must provide factual support for his contentions

regarding counsel’s performance. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir.),

cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). Bare, conclusory

allegations of ineffective assistance are insufficient to satisfy the Strickland test.

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Stano v. Dugger, 901 F.2d 898,

899 (11th Cir. 1990) (citing Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629).

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Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can properly

prevail . . . are few and far between.” Chandler v. United States, 218 F.3d 1305, 1313

(11th Cir. 2000). 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.

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 122 S.Ct. 234

(2001).

C. Defendant’s Grounds for Relief

1. Counsel’s failure to call William Sinkfield as a witness.

The only eye witnesses to this incident were the defendant, his father, William

Sinkfield, Dedrick Geter, and Mr. Geter’s uncle, Kevin Maxwell. Defendant faults

counsel for not calling his father as a witness. Defendant says that his father was

prepared to testify in essence that defendant was only protecting the two of them in

the altercation, and that this would have carried his justification defense. He claims

his father was prepared to say that he, William Sinkfield, was the person who took

two shots at Mr. Geter as he fled, and that defendant fired only one round into the

ground to make Mr. Geter leave the property. He claims that counsel was ineffective

for failing to call William Sinkfield because had he done so, the outcome of the

proceedings would have been different. Defendant cannot succeed on this ground.

The court held a hearing on this issue on December 14, 2004 and heard the

testimony of defendant’s trial counsel Thomas Keith, Esq. and of the defendant.

William Sinkfield is deceased. Based on the testimony adduced at this hearing, the

court finds that Mr. Keith made a strategic decision not to call William Sinkfield to

testify. The court further finds that this decision was well-grounded based on a

weighing of the risks inherent in putting on any witness, and particularly William

Sinkfield. 

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William Sinkfield was interviewed by law enforcement immediately after the

incident. He gave a recorded statement in which he stated that he fired one round

into the ground and that his son, the defendant, took two shots at Mr. Geter as he

fled. However, at a later deposition, William Sinkfield testified to the exact opposite:

that he took two shots at Mr. Geter as he fled, and that his son, the defendant, fired

only once into the ground. Defense counsel was aware of this discrepancy, and

knew that while the later version of the event may have helped the defendant, the

first version, given on the day of the incident, was essentially in line with the

government’s theory of the case and would have been extremely damaging to the

defense. Moreover, the fact that William Sinkfield gave mutually inconsistent

versions of the event would have totally impeached his testimony. Mr. Keith also

discussed with William Sinkfield the fact that his testimony in this case might later

be used against him in a pending prosecution in a companion state case. William

Sinkfield therefore decided not to testify. (Doc. 70 at 14-15).

Thus, defense counsel made a well-supported decision not to call William

Sinkfield, and even if he had wanted to call the witness, the evidence shows that the

witness would not have testified. “‘Which witnesses, if any, to call, and when to call

them, is the epitome of a strategic decision, and it is one that we will seldom, if ever,

second guess.’” Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004), quoting,

Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Defendant has not pointed to

any authority supporting his claim that, under these facts, his counsel’s

performance was below an objective and reasonable professional norm, nor has the

court found any. Defendant’s claim that “[c]ounsel had a duty to abide by

Defendant’s adamancy he call (sic) William Sinkfield to testify” (doc. 65, p. 9), is

likewise unsupported. Hardwick v. Crosby, 320 F.3d 1127, 1161-61 (11th Cir. 2003)

(holding that counsel was not ineffective in not calling witnesses even though

defendant was adamant in telling him to call them). Defendant therefore cannot

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show that counsel’s performance at trial was constitutionally deficient, and he is not

entitled to relief on this ground.

2. Counsel’s failure to argue justification.

Defendant next asserts that his attorney’s performance was constitutionally

deficient because he did not argue justification. Here defendant is simply wrong.

Counsel did present a justification argument, and the jury was instructed on it. (Doc.

43 at 8-9). He presents a list of purported inconsistencies in the testimony of the

witnesses, and says that counsel could have more effectively brought these matters

out so that the jury could understand how he was justified in picking up a handgun.

This court’s review of the record reveals that counsel cross-examined Mr. Geter and

Mr. Maxwell extensively and effectively, and presented a cogent argument to the jury.

The fact that defendant, or that some other lawyer, might have done it differently,

does not rise to the level of ineffective assistance of counsel. Defendant is not

entitled to relief on this ground.

3. Counsel’s failure to challenge statutory applicability.

 For his final ground for relief defendant argues the inapplicability of 18 U.S.C.

§ 922(g), under which he was charged. The thrust of his argument is that while there

was proof that the handgun he possessed had moved in interstate commerce, there

was no proof that it was “in” interstate commerce at the time of the incident, which

defendant says is a necessary element of the crime.

The law is to the contrary. The “commerce” element of the statute is met, and

Congress’ constitutional authority to enact the statute is satisfied, upon a showing

that the firearm “once traveled in [interstate] commerce.” Scarborough v. United

States, 431 U.S. 563, 576, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 1963 (1977). 

Defendant has failed to show that his counsel’s performance was below an

objective and reasonable professional norm. It is therefore unnecessary to address

Strickland’s prejudice prong. Accordingly, it is respectfully RECOMMENDED that

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defendant’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.

§ 2255 (doc. 61) be DENIED.

At Pensacola, Florida, this 3rd day of January, 2005.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATEJUDGE

NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy hereof. 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). 

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