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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:11cr32/RH/GRJ

4:13cv236/RH/GRJ

JAMES ALEXANDER MURPHY

REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s Motion under § 2255

to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

and supporting memorandum of law. (ECF Nos. 51, 52.) The Government

has responded (ECF Nos. 61, 65) and Defendant filed a reply. (ECF No.

66). After a careful 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 Governing Section 2255 Cases 8(a) and (b).

PROCEDURAL BACKGROUND

Petitioner Jamey Alexander Murphy was the lone Defendant charged

in a three count indictment with conspiracy to possess with intent to

distribute five kilograms or more of cocaine (“Count One”), possession with

intent to distribute five hundred grams or more of cocaine on May 9, 2011

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(“Count Two”) and possession of firearms in furtherance of a drug

trafficking crime on that same date (“Count Three”). (ECF No. 9.) 

Represented by attorney Armand Garcia, Murphy pleaded guilty to the

three counts pursuant to a written plea agreement without a separate

statement of facts. (ECF Nos. 20, 21; ECF No. 42 at 7.) 

At the change of plea proceeding, the Government orally set forth

what it believed it could prove at trial. (See ECF No. 42 at 7.) In brief,

after investigation into Murphy’s narcotic-trafficking activities, law

enforcement obtained and executed a search warrant on a storage unit

Murphy used from which they recovered a plastic cooler containing two

and a half kilograms of cocaine and two firearms. (ECF No. 42 at 10.) 

Upon inquiry by the court, Murphy admitted ownership of the cocaine and

the firearms. (ECF No. 42 at 11). The Government further explained that

after Murphy’s arrest, investigators obtained a search warrant for a storage

unit at a different location, where they discovered another weapon and

nineteen bundles of United States currency. (ECF No. 42 at 13.) Murphy

also admitted ownership of the firearm and the currency totaling

approximately $190,000. (ECF No. 42 at 14.) A search of Murphy’s home

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yielded approximately $3,000 in currency, which Murphy admitted was drug

proceeds. (ECF No. 42 at 19.) 

The Court advised Murphy that unless he received a substantial

assistance motion he faced a minimum sentence of ten years and up to a

maximum of life on Counts One and Two, followed by a consecutive five

year term on Count Three. (ECF No. 42 at 20–26.) Murphy confirmed that

he understood the rights he was waiving by entering a plea of guilty,

including any defense that he might have had. (ECF No. 42 at 4–6.) 

Murphy also assured the Court that he had had adequate time to talk to his

lawyer, that counsel had answered all his questions, that he was satisfied

with counsel’s performance, and that he had no questions. (ECF No. 42 at

28.) The Court accepted Murphy’s guilty plea. (ECF No. 42 at 29.) 

The Presentence Investigation Report assessed Murphy’s total

offense level at 35. With a criminal history category of III the applicable

guidelines range as to Counts One and Two was 210 to 262 months,

followed by the mandatory 60 month consecutive term on Count Three.

(ECF No. 26). The court sentenced Murphy at the low end of the

guidelines range to a total term of 270 months imprisonment. (ECF Nos.

29, 46.)

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Murphy appealed, arguing that the district court did not make an

individualized finding regarding the drug quantity reasonably foreseeable to

him and that the length of his sentence was unreasonable. (ECF No. 48.) 

The Eleventh Circuit affirmed, and the Supreme Court denied certiorari. 

(ECF Nos. 48–50.) 

Petitioner timely filed the instant motion under 28 U.S.C. § 2255

raising a single ground for relief. He claims that counsel was

constitutionally ineffective for failing to challenge the search, which led to

his plea being unknowing and involuntary as it was based on erroneous

advice. 

LEGAL ANALYSIS

General Standard of Review

Collateral review is not a substitute for direct appeal, and therefore

the grounds for collateral attack on final judgments pursuant to § 2255 are

extremely limited. A prisoner is entitled to relief under section 2255 if the

court imposed a sentence that (1) violated the Constitution or laws of the

United States, (2) exceeded its jurisdiction, (3) exceeded the maximum

authorized by law, or (4) is otherwise subject to collateral attack. See 28

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

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Cir. 2011). “Relief 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 “fundamental

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 “has 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. 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) (“identical grounds may

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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 1234–35; 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 “‘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 “actually 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 “some objective factor external to the

defense prevented [him] or his counsel from raising his claims on direct

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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. 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). Strickland’s two part test also applies to guilty pleas. 

Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (citing Hill v. Lockhart, 474

U.S. 52, 58 (1985)). A defendant will be required to show that but for

counsel’s errors, he would not have pleaded guilty and would have instead

insisted on proceeding to trial. Id at 1384–85 (quoting Hill, 474 U.S. at 59).

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A defendant’s “after the fact testimony concerning his desire to plead,

without more, is insufficient to establish” prejudice. Pericles v. United

States, 567 F. App’x 776, 782 (11th Cir. 2014) (quoting Diaz v. United

States, 930 F.2d 832, 835 (11th Cir. 1991)) ; Rosin v. United States,786

F.3d 873 (11th Cir. 2015). A defendant must “convince the court that a

decision to reject the plea bargain would have been rational under the

circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). 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)

(“[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 “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). Reviewing courts are to examine counsel’s performance in a highly

deferential manner and “must indulge a strong presumption that counsel’s

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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, 1315–16 (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 “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. To show counsel’s performance was

unreasonable, a defendant must establish that “no 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 “[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. “The

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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 “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 (1993); Allen v. Sec’y, Fla. Dep’t of Corr.,

611 F.3d 740, 754 (11th Cir. 2010). A 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). 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, 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.

To establish ineffective assistance, Defendant must provide factual

support for his contentions regarding counsel’s performance. Smith v.

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White, 815 F.2d 1401, 1406–07 (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, 1333–34

(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, “the cases in which habeas petitioners

can properly prevail . . . are few and far between.” Chandler, 218 F.3d at

1313. This is because the test is not what the best lawyers would have

done or even what most good lawyers would have done, but rather whether

some reasonable lawyer could have acted in the circumstances as defense

counsel acted. Dingle, 480 F.3d at 1099; Williamson v. Moore, 221 F.3d

1177, 1180 (11th Cir. 2000). “Even 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

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(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 “defeat 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 “the motion and files

and records conclusively show that the prisoner is entitled to no relief.” 

See 28 U.S.C. § 2255(b); Rosin v. United States,786 F.3d 873, 877 (11th

Cir. 2015); Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). 

Not every claim of ineffective assistance of counsel warrants an evidentiary

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

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

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

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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

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

(explaining that “a 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.

Ground One

Petitioner contends that his attorney was constitutionally ineffective

because he “basically coerced petitioner into accepting a plea of guilty,”

instead of seeking to suppress evidence that was obtained via GPS

tracking system, as Petitioner requested that he do. (ECF No. 52 at 2.) 

“A guilty plea, since it admits all the elements of a formal criminal

charge, waives all non-jurisdictional defects in the proceedings against a

defendant.” United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014)

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(quoting United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986)

(quoting United States v. Jackson, 659 F.2d 73, 74 (5th Cir.1981)); see

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

(“Generally, a voluntary, unconditional guilty plea waives all

non-jurisdictional defects in the proceedings.”). This waiver includes

constitutional claims, including ineffective assistance of counsel claims

relating to pre-plea issues, although an attack on the voluntary and

knowing nature of the plea can be sustained. See Tollett v. Henderson,

411 U.S. 258, 267 (1973) (individual who pleads guilty may “attack the

voluntary and intelligent character of the guilty plea”). If a prisoner pleads

guilty on the advice of counsel, in order to be entitled to collateral relief, “he

must demonstrate that the advice was not ‘within the range of competence

demanded of attorneys in criminal cases.’” Tollett, 411 U.S. at 267 (quoting

McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763

(1970)); see also United States v. Glinsey, 209 F.2d 386, 392 (5th Cir.

2000) (“A voluntary guilty plea waives ... claims of ineffective assistance of

counsel except insofar as the ineffectiveness is alleged to have rendered

the guilty plea involuntary.”); cf. Wilson v. United States, 962 F.2d 996, 997

(11th Cir. 1992) (by pleading guilty, defendant waived ineffective

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assistance of counsel claims as it involved preplea issues). Petitioner

acknowledges that a plea of guilty waives “most” defects in the

proceedings, but argues that if counsel’s failure to know the law is the

cause of the waiver, as he argues in this case, a defendant cannot be held

accountable for the waiver or omission. (ECF No. 52 at 2). Petitioner’s

own representations, however, weigh against his suggestion that there was

no waiver.

In his initial § 2255 motion, Petitioner claims that he told counsel that

law enforcement had failed to secure a warrant before placing a GPS

tracking device on his vehicle while it was parked at his mother’s

residence, where Petitioner also resided. (ECF No. 52 at 3.) In response,

counsel allegedly told Petitioner that this was “legal,” and that his best

alternative was to plead guilty and cooperate with the Government. (ECF

No. 52 at 3.) Petitioner says that since he believed there was no defense

to the charges, he accepted counsel’s position that it was best to plead

guilty. He maintains that had he been aware that attachment of the GPS

device was considered a search that required a warrant, there was “no way

[he] would have pleaded guilty” but instead he would have proceeded to

trial. (ECF No. 52 at 3.) Petitioner takes the position that because agents

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did not obtain a warrant before attaching the GPS device, any fruits of this

search would have been subject to suppression.

Neither the Government’s recitation of the facts in this case, nor the

statement of facts in the PSR mentions the Government’s use of a GPS

tracking device. Substantively, the Government’s response includes no

analysis of the merits of the purported fourth amendment claim. An

affidavit from Petitioner’s former attorney states only that he “[does] not

recall Mr. Murphy requesting that we challenge police use of a GPS devise

[sic] in his case prior to the time of his entering a guilty plea.” (ECF No. 61-

1).

In Petitioner’s response, he paints a picture of himself as a savvy

client, who was familiar with legal developments on this issue and took the

lead in trying to convince his attorney of the merits of filing a motion to

suppress. He asserts that counsel “ignored his request to seek to

suppress the search based on the GPS being placed on his vehicle,” and

that he “alerted [counsel] to developments in the other district courts

concerning challenges to a GPS device being placed on defendant’s

automobile.” (ECF No. 66 at 1–2.) Petitioner also claims he learned of a

“challenge in the Eleventh Circuit concerning the placement of such a

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device by another inmate who had actually worked with the individual

concerning a GPS placement and the legality thereof.” (ECF No. 66 at 2.) 

In light of this, Petitioner explains that he requested that counsel

pursue this matter, but “no matter how much Petitioner tried to persuade

counsel of the validity thereof, [counsel] chose to ignore this issue and was

more concerned about Petitioner’s entering a plea of guilty.” (ECF No. 66

at 2.) Petitioner asserts that he was “fully aware of the issue both before

and during the appeal process.” (Id.) Petitioner’s self-described legal

acumen undermines the credibility of his assertion that he was coerced

into entering a guilty plea as a result of counsel’s lack of familiarity with the

issue. Nonetheless, the court will consider the merits of the purported

claim.

When counsel’s alleged ineffectiveness involves a failure to

competently litigate a Fourth Amendment claim, in order to demonstrate

actual prejudice, the defendant must prove that his Fourth Amendment

claim is meritorious and that there is a reasonable probability that the

verdict would have been different absent the excludable evidence.

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2582–83, 91

L. Ed. 2d 305 (1986); Zakrzewski v. McDonough, 455 F.3d 1254, 1260

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(11th Cir. 2006). Regardless of whether a defendant’s guilt is established

by the excludable evidence, the proper question is whether the outcome of

the proceedings would have been different had the motion to suppress

been filed and the evidence been excluded. Jones v. United States, 224

F.3d 1251, 1259 (11th Cir. 2000); Huynh v. King, 95 F.3d 1052, 1058–59

(11th Cir. 1996); Thomas v. Newsome, 821 F.2d 1550, 1552 (11th Cir.

1987); see also Ward v. Dretke, 420 F.3d 479, 488 (5th Cir. 2005). 

Assuming arguendo that there was no waiver, Murphy has not

established the existence of a viable Fourth Amendment claim that would

have led to the suppression of any of the evidence against him. As

discussed above, there is no record evidence regarding the alleged

placement of the GPS on Petitioner’s vehicle. Petitioner suggests (without

any evidentiary support) that his mother observed law enforcement place

the GPS on the vehicle, although he offers no other details about the

incident, and the record contains none. (ECF No. 52 at 3.) Murphy also

states that “when he became aware of a tracking device was placed on his

vehicle, he alerted counsel to challenge this fact,” which suggests that

Murphy did not learn of the placement until after he was arrested and

counsel appeared in this case. (ECF No. 66 at 1.) 

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In any event, in July of 2011, at the time of Murphy’s plea,

warrantless placement of a tracking device on a vehicle parked in a public

place was not prohibited. See, e.g., United States v. Michael, 645 F.2d

252, 255–56 (5th Cir. 1981) (“reasonable suspicion is adequate to support 1

warrantless beeper installation [on the exterior of a vehicle]”); see also

United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011) (use of a GPS

device to track defendant was not a search within the meaning of the

Fourth Amendment). It was not until 2012—after Murphy plead guilty and

was sentenced— that the Supreme Court ruled that attachment of a GPS

tracking device to a vehicle and use of that device to monitor the vehicle’s

movements on public streets was a search within the meaning of the

Fourth Amendment. United States v. Jones, 132 S.Ct. 945, 949 (2012).

The Eleventh Circuit noted in a 2010 decision, that Federal Rule of

Criminal Procedure 41(b)(4) establishes the federal procedure for obtaining

a warrant to install a tracking device, although it not applicable to a local

police investigation conducted without federal involvement, which is not the

case here. United States v. Smith, 387 F. App’x 918, 920 (11th Cir.2010)

All cases from the former Fifth Circuit handed down by the close of business on 1

September 30, 1981, are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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(citing United States v. Lehder-Rivas, 955 F.2d 1510, 1522 (11th Cir.

1992). The 2006 Amendment Notes to the Rule 41 clarify that “if the

officers intend to install or use the device in a constitutionally protected

area, they must obtain judicial approval to do so” but if “the officers intend

to install and use the device without implicating any Fourth Amendment

rights, there is no need to obtain the warrant.” Smith, 387 F. App’x at 920.

Because the vehicle in question in Smith was parked in a place easily

accessible to the public, the court concluded that the defendant had no

reasonable expectation of privacy and that the search, i.e. the placement

of the GPS device, was permissible. Id. at 921. 

In a later, unrelated case, the Eleventh Circuit declined to apply the

exclusionary rule to evidence obtained as a result of two warrantless

searches involving the use of GPS tracking devices. United States v.

Smith, 741 F.3d 1211 (11th Cir. 2013). The two GPS tracking devices had

been attached to the defendant’s vehicle in January of 2011 while the

vehicles were parked in public places. Smith, 741 F.3d at 1215 The court

concluded that at the time of the GPS searches, the officers reasonably

relied on binding circuit precedent that clearly dictated the constitutionality

of warrantless GPS surveillance based on reasonable suspicion. Smith,

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741 F.3d at 1221. Petitioner’s vague statement regarding what his mother

allegedly observed is not dispositive evidence of where the attachment

occurred and whether a Fourth Amendment violation occurred. 

Even if there were no waiver, and Murphy established a Fourth

Amendment violation—and assuming further the evidence obtained as a

result of such violation would have been subject to the exclusionary rule—

to prevail on his claim, Murphy must establish prejudice, that is, that the

results of the proceeding would have been different. Murphy fails to

explain exactly how the evidence against him would have changed absent

the allegedly unconstitutional placement of the GPS. Perhaps Murphy

means to suggest that all of the physical evidence seized from the storage

units and his home would have been excluded. Even if that were the case,

the evidence against Murphy went beyond the drugs, cash and guns

seized from the storage units and his admissions to ownership thereof.

The PSR reflects that by January 27, 2011, Murphy already had been

identified by law enforcement as a multi-kilogram distributor of cocaine in

the Tallahassee area. (ECF No. 26 at ¶ 9.) Two cooperating coconspirators provided information to law enforcement about their long-term

dealings with Murphy, which were merely corroborated by his own

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admissions. (ECF No. 26, PSR ¶¶ 23–28.) Murphy’s assertion that he

would have proceeded to trial in light of the evidence against him and the

sentence he faced is conclusory and unpersuasive. See Pericles, 567 F.

App’x at 782 (11th Cir. 2014); Rosin,786 F.3d 873; Padilla, 559 U.S. at

372. Petitioner has pointed to nothing in the record to support his

assertion that the outcome of the proceedings would have been different

had the motion to suppress been filed, and he is not entitled to relief. 

As a subpart of his claim, Murphy maintains that appellate counsel

was constitutionally ineffective for failing to challenge law enforcement’s

application of the GPS device to his vehicle on appeal. To prevail on a

claim for ineffective assistance of appellate counsel, a defendant must

show that (1) appellate counsel's performance was deficient, and (2) but

for counsel's deficient performance he would have prevailed on appeal.

Shere v. Sec'y Fla. Dep't of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008);

see Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir.2009) (holding that

claims for ineffective assistance of appellate counsel are governed by the

same standards applied to trial counsel under Strickland v. Washington,

466 U.S. 668, 687 (1984)). Counsel is clearly not ineffective for failing to

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raise a meritless issue on appeal. Shere, 537 F.3d at 1311; Ladd v. Jones,

864 F.2d 108, 110 (11th Cir.1989) (“[S]ince these claims were meritless, it

was clearly not ineffective for counsel not to pursue them.”). This issue

was not raised in the district court and there was no record evidence upon

which counsel could have based a successful appellate argument. It

follows that Murphy cannot show that counsel was constitutionally

ineffective for failing to pursue this issue on appeal.

CONCLUSION

For all of the foregoing reasons, the Court finds that Murphy 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 the §

2255 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

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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.

Based on the foregoing, it is respectfully RECOMMENDED:

1. The motion to vacate, set aside, or correct sentence (ECF No. 51)

should be DENIED.

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2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 25 day of March, 2016. th

s/ 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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