1

 It is further recommended that a Certificate of Appealability (COA) not be issued to

Petitioner Bennett.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DANIEL LEWIS BENNETT, :

Petitioner, : CA 09-0827-CG-C

vs. : 

UNITED STATES OF AMERICA, : CR 07-0237-CG

Respondent. 

REPORT AND RECOMMENDATION

This matter is before the undersigned, pursuant to 28 U.S.C. §

636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255

Proceedings, on Petitioner Bennett’s § 2255 Motion to Vacate (Doc. 44),

filed December 22, 2009. In that motion, however, Bennett fails to plead

any facts which, taken as true, entitle him to habeas relief. As a result, it is

the undersigned’s recommendation that this case be DISMISSED under

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United

States District Courts.1

 

In his § 2255 motion, Petitioner Bennett fails to assert any legitimate

ground(s) for relief or provide any reason whatsoever why he feels his

sentence should be vacated, set aside, or corrected. (Doc. 44.) Notably, in

his petition, Bennett relates that he plead guilty to “possession with intent to

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2

 It is also worth noting here that Chief Judge Granade was informed of Bennett’s prior

conviction(s) in advance of sentencing via the Presentence Report (Doc. 24) filed January 23,

2008. The “twenty year sentence” to which Bennett refers is clearly listed on page 7 of that

report. Mr. Bennett and his attorney declined to present any objections to this Report or suggest

that his criminal history was any different than that reported to the Court by his Probation

Officer. (Id., Attachment 1) 

2

distribute,” without elaboration, and that in exchange, the “prosecutor

agrees to dismiss Count 1.” (Id. at 2.) Bennett states that he appealed his

January 28, 2008 conviction and received a ruling from the Eleventh

Circuit, but does not give the result or date of that opinion, if any. (Id. at 3.)

The closest Bennett comes to stating a valid ground for relief is when

he posits that he received ineffective assistance of counsel “due to the fact

that neither the federal prosecutor [nor] my defense counsel . . . informed

[the sentencing judge] that I had a ‘20 year sentence’ from the Mobile

County Circuit Court.” (Id. at 4.) This short statement represents the

entirety of Bennett’s argument; nowhere in the petition does he expand

upon or clarify his position even slightly. The undersigned is unable to see,

then, how this “omission” had even the slightest adverse effect on

Petitioner.2

 

Furthermore, Bennett is currently serving time following a 1996

state-court conviction for robbery in the first degree, and when asked if he

has any future sentence to serve after the sentence whose validity he is

currently attacking, Bennett mistakenly reports that he was sentenced to a

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3

 Bennett lists the date of his 27-month conviction as the same date of the 24-month

conviction he attempts to attack in his petition, but the discrepancy of terms (3 months) muddles

the matter. (Compare Id. at 6 with Id. at 1-2.) 

3

27-month term of imprisonment in January of 2008 by Chief Judge Granade

of this Court.3

 (Id. at 6.) A search for any other cases involving Bennett in

this Court’s case management system, however, reveals only the instant

action, broken into its civil and criminal components.

The undersigned’s independent review of the record reveals the

following time line. First, after being arrested on June 8, 2007, for the

possession with intent to distribute crack cocaine, Bennett was appointed

counsel (Doc. 9) and entered into a plea agreement (Doc. 18) on October

22, 2007. In that document, Bennett’s signature clearly appears below a

paragraph that reads:

I have consulted with my counsel and fully understand all my

rights with respect to the offenses charged in the Indictment

pending against me. I have read this Plea Agreement and

carefully reviewed every part of it with my attorney. I

understand this agreement, and I voluntarily agree to it. I

hereby stipulate that the Factual Resume, incorporated herein,

is true and accurate in every respect, and that had the matter

proceeded to trial, the United States could have proven the

same beyond a reasonable doubt.

(Id. at 11.) This guilty plea was accepted via this Court’s order on October

24, 2007 (Doc. 20). Next, Bennett filed his Position of Parties with Respect

to Sentencing Factors (Doc. 23) on January 10, 2008, and therein contended

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that according to the “tox reports,” he was responsible for trafficking only

0.7, not 2.0, grams of crack cocaine, a discrepancy that would have the

effect of lowering his base offense level. (Id. at 1.) Bennett and his counsel

also argued that he should receive a three point adjustment for his

acceptance of responsibility, giving him a total offense level of 13 with a

criminal history category of III, meaning the guideline range for his

sentence would be 18-24 months. (Id.) Judgment was entered against

Bennett on February 6, 2008 (Doc. 30); Bennett was sentenced to a term of

24 months.

Bennett, through counsel then filed a Notice of Appeal (Doc. 27) on

February 7, 2008, but this Court’s judgment was affirmed by the Eleventh

Circuit on November 7, 2008 (Doc. 40). Bennett’s attorney, Linda Collins

Jensen, having assisted Bennett with getting an appeal perfected, then filed

a motion to withdraw, complete with an Anders brief, asserting that she was

unable to find any issues on appeal that would have arguable merit, and this

motion was also granted. (Id.) Bennett then filed a self-styled Motion to

Reconsider Sentence (Doc. 41) on September 28, 2009, which was denied

by this Court (Doc. 42) via an endorsed order on September 30, 2009. 

Finally, on December 22, 2009, Bennett filed the instant motion (Doc. 44). 

 Although Petitioner Bennett’s § 2255 motion is entitled to a liberal

construction due to its status as a pro se pleading, see Aron v. United States,

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4

 The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (1981),

adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to

September 30, 1981.

5

291 F.3d 708, 715 (11th Cir. 2002), scant and unsupported (or even nonexistent) claims are properly disposed of on their face. See, e.g., Mayberry

v. Davis, 608 F.2d 1070, 1072 (5th Cir. 1979) (holding that issues “not

properly presented” to district court were not “properly before” it)4

; United

States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 446 U.S. 945 (1980)

(contention “without merit” when it is “wholly conclusory and unsupported

by factual allegations or proof”); United States v. Lynn, 365 F.3d 1225,

1238-39 (11th Cir. 2004) (collecting cases stating that where a petitioner has

made unsupported allegations, no evidentiary hearing is required).

Rule 2(b) of the Rules Governing Section 2255 Proceedings for the

United States District Courts relates that a successful motion to vacate must

(1) specify all the grounds for relief available to the movant, (2) state the

facts supporting each ground, and (3) state the relief requested, among other

requirements. Rule 4(b), moreover, mandates that “[i]f it plainly appears

from the motion . . . that the moving party is not entitled to relief, the judge

must dismiss the motion and direct the clerk to notify the moving party”

upon initial consideration. Finally, the Ninth Circuit in U.S. v. Mims, 928

F.2d 310 (1991), when facing a (similarly unsupported) claim of ineffective

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6

assistance of counsel due the petitioner’s attorney having a supposed

conflict of interest, the Court said: “Because this court will not ‘create a

conflict of interest out of mere conjecture as to what might have been

shown,’ we affirm the finding of the district court.” Id. at 313 (quoting

Lugo v. United States, 350 F.2d 858, 859 (9th Cir. 1965)). See also

Rayborn v. U.S., 251 F.2d 950 (6th Cir. 1958) (per curiam) (upholding the

district court’s denial of a motion to vacate where said motion “did not

contain a statement of facts upon which the relief sought could be

granted.”); Schawartzberg v. U.S., 379 F.2d 551, 552 (2nd Cir. 1967) (per

curiam) (upholding district court’s denial of a § 2255 motion to vacate in

part because the petitioner’s claim of prejudice was “unsupported by any

factual allegations” and was “wholly conclusory and too insubstantial to

require a hearing.”). In light of the foregoing, petitioner’s motion to vacate

is due to be dismissed.

 Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings,

the undersigned also recommends that a certificate of appealability in this

case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court must

issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.”). The habeas corpus statute makes clear that an

applicant is entitled to appeal a district court’s denial of his habeas corpus

petition only where a circuit justice or judge issues a certificate of

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appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may

issue only where “the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). Where, as here, a

habeas petition is being denied on procedural grounds without reaching the

merits of an underlying constitutional claim, “a COA should issue [only]

when the prisoner shows . . . that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling[,]” Slack v. McDaniel, 529 U.S.

473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). See also id. at

483-484, 120 S.Ct. at 1603-1604 (“To obtain a COA under § 2253(c), a

habeas prisoner must make a substantial showing of the denial of a

constitutional right, a demonstration that, under Barefoot, includes showing

that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the

issues presented were ‘“adequate to deserve encouragement to proceed

further.”’”); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029,

1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner

must ‘sho[w] that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were “adequate to deserve

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8

encouragement to proceed further.”’”). Slack also states that “[w]here a

plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Slack, 529 U.S. at 484, 120 S.Ct. at 1604. 

Simply put, given the facts of this case, it is nonsensical for the Petitioner to

suggest that the prosecutor and defense attorney’s failure to mention the

fact that Petitioner had already received a 20-year sentence in an Alabama

court to the sentencing judge deprived him of effective assistance of

counsel. 

For the reasons identified above, it is the undersigned

recommendation that this case be DISMISSED. It is further recommended

that a Certificate of Appealability (COA) not be issued to Petitioner.

The attached sheet contains important information regarding 

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9

objections to the report and recommendation of the Magistrate Judge.

 DONE this 20th day of January, 2010.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

 

Case 1:07-cr-00237-CG-C Document 45 Filed 01/20/10 Page 9 of 10
5 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

10

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within fourteen days of the date of service of this document, file specific written objections

with the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days5 after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

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