IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VON CLAY BENNETT, :

Petitioner, :

vs. : CIVIL ACTION NO. 12-343-WS-B

CRIMINAL ACTION 09-083-WS-B

UNITED STATES OF AMERICA, :

Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner Von Clay Bennett’s

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

§ 2255 (Doc. 68, 73), the Government’s Response thereto (Doc. 

75), and Petitioner's Reply. (Doc. 78). This action was 

referred to the undersigned Magistrate Judge for report and 

recommendation pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of 

the Rules Governing Section 2255 Cases and is now ready for 

consideration. Because the record is adequate to dispose of 

this matter, no evidentiary hearing is required. Having 

carefully reviewed the record, it is recommended that 

Petitioner's Motion to Vacate, Set Aside, or Correct Sentence 

under 28 U.S.C. § 2255 (Doc. 68, 73) be denied, that this action 

be dismissed, and that judgment be entered in favor of 

Respondent, the United States of America, and against Petitioner 

Von Clay Bennett (“Bennett”).

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 1 of 33
2

I. BACKGROUND AND FACTS

On March 26, 2009, the grand jury returned an indictment 

against Bennett. (Doc. 1). The indictment alleged three counts 

of possession with intent to distribute crack cocaine in 

violation of 21 U.S.C. § 841(a)(1). 1 (Doc. 1; Doc. 19-1 at 13-

14). On August 11, 2009, the Court appointed attorney 

Christopher Knight ("Knight"), an assistant federal defender, to 

represent Bennett. (Docs. 8, 9, 10). With the assistance of 

counsel, Bennett negotiated a guilty plea with the government 

and he, his attorney, and the Assistant United States Attorney,

signed a Plea Agreement and Factual Resume on September 18, 2009

and September 21, 2009, respectively. (Doc. 19-1). At a guilty 

plea hearing conducted on September 21, 2009, Bennett 

acknowledged that he understood the charges against him and the 

penalties he faced if convicted. (Doc. 61). He also 

acknowledged the truth of the facts in the Factual Resume, and 

that he was freely entering the guilty plea. (Id.). 

Subsequent to the guilty plea hearing, Bennett corresponded 

with Knight by letter, and expressed his dissatisfaction with 

Knight and requested different defense counsel. (Doc. 73 at 8-

10). On November 3, 2009, Knight, per Bennett’s request, 

 1 The indictment resulted after the Baldwin County Sheriff’s 

Office Drug Task Force made three controlled drug buys from 

Bennett on August 4, 2008, August 26, 2008 and September 10, 

2008. (Doc. 1; Doc. 19-1 at 13-14). Bennett’s six year old 

daughter was present during the August 26th buy. (Id.)

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 2 of 33
3

requested an ex parte hearing with the Court to discuss the 

appointment of new counsel for Bennett “due to disagreements 

with current counsel regarding the manner in which [Bennett was] 

being represented.” (Doc. 21). Prior to the scheduled hearing, 

however, Knight filed a motion to withdraw as Bennett’s attorney 

based on a newly discovered conflict of interest. (Doc. 23). 

Knight’s motion to withdraw was granted and D.E. “Skip” 

Brutkiewicz, Jr. (“Brutkiewicz”) was appointed by the Court to 

represent Bennett on November 13, 2009. (Docs. 24-25). 

On May 5, 2010, the Probation Office entered a Presentence 

Investigation Report (“PSR”) for Bennett. (Doc. 32). The 

report included information regarding Bennett’s behavior 

following his arrest on August 10, 2009:

When Bennett sat down in the back seat of the patrol 

car, he reached into his pocket and removed his cell 

phone. Bennett then placed a call to his mother, who 

resided on McGee Circle, in Bay Minette, Alabama. 

During the phone call, Bennett instructed his mother

to remove “that stuff” from a big bowl on top of the

refrigerator and flush it down the toilet. As the

[sic] Bennett’s mother was attempting to tell Bennett 

something, the officers on the scene noticed that 

Bennett was talking on the cell phone, and one officer 

reached into the car and removed the cell phone. 

Investigation revealed that when officers executed a 

search warrant at the Bennett’s mother’s residence,

they did not recover the drugs from the top of the

refrigerator.

(Doc. 32 at 4). In response to the PSR, the government 

requested a sentence enhancement due to Bennett’s obstruction of 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 3 of 33
4

justice, namely, the post arrest phone call to his mother and 

the selling of drugs in the presence of a minor child. (Doc. 

30). Bennett, through counsel, filed a response opposing the 

government’s request for enhancement.2 (Doc. 35). 

At the sentencing hearing, the Court, consistent with the 

PSR, found that the base offense level was 34 (given the Court’s 

finding that Bennett was accountable for 1.021 kilograms of 

crack cocaine), and that a two-level enhancement for obstruction 

of justice and a three-level deduction for early acceptance of 

guilt were warranted. (Docs. 61-1 at 13, 72). Based on an

adjusted based level of 33, and Bennett’s criminal history 

category of IV, the applicable advisory sentencing guideline 

range was 188 to 235 months in prison. (Doc. 32 at 16). Bennett 

received a low-end sentence of 188 months as to Count One, Two, 

three, to be served concurrently.3 (Docs. 41, Doc. 61-1 at 16). 

On June 15, 2010, Bennett filed a Notice of Appeal, which was 

dismissed by the Eleventh Circuit on May 20, 2011 based on the 

 2 Specifically, defense counsel asserted that “the Government 

agreed not to bring additional charges against Defendant if he 

plead guilty to Counts 1, 2, and 3” and that the government 

should not now be allowed to enhance his sentence for 

obstruction of justice. (Doc. 35 at 1).

3 Bennett filed multiple requests for sentence reductions. 

(Docs. 67, 79, 83, 86). All of the motions were denied except, 

on December 31, 2014, Bennett’s sentence was reduced to 151 

months based on Amendment 782 to the United States Sentencing 

Guidelines. (Docs. 90, 91). 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 4 of 33
5

appeal waiver contained in Bennett’s Plea Agreement. (Doc. 66 

at 3). 

On May 11, 2012, 4 Bennett filed the present petition

pursuant to 28 U.S.C. § 2255. 5 (Doc. 68). In his petition, 

Bennett asserts that he received ineffective assistance of 

counsel in violation of his Sixth Amendment constitutional right

to assistance of counsel. (Id.). Bennett enumerates three 

specific ineffective assistance of counsel claims, namely that 

his counsel was ineffective for: 1) not securing a downward 

departure from the sentencing guidelines due to the timing of 

Bennett’s debriefing, 2) representing Bennett although a 

conflict of interest existed and failing to inform Bennett that 

he was waiving his appeal rights by entering the plea agreement, 

and 3) failing to properly prepare for sentencing. (Id. at 4-

7, 14-16). Bennett requests to have sentence vacated, or in the 

alternative, that the Court grant him an evidentiary hearing to 

 4 Under the mailbox rule, absent contrary evidence, a 

prisoner’s motion is deemed filed on the date it is delivered to 

prison officials for mailing. Washington v. United States, 243 

F.3d 1299, 1301 (llth Cir. 2001).

5 Bennett filed an Addendum to the Motion to Vacate on May 

31, 2012. (Doc. 73). The Addendum essentially reiterates the 

claims in Bennett’s Motion to Vacate and attaches a letter, 

dated September 23, 2009, that was addressed and sent to 

attorney Knight. (Doc. 73 at 8-10). The letter expresses 

Bennett’s dissatisfaction with the representation of Knight and 

requests Knight withdraw as his defense counsel. (Id.).

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 5 of 33
6

determine the facts. 6 (Doc. 68 at 13). 

In opposing Bennett’s petition, the United States argues that 

Bennett’s claims of ineffective assistance of counsel are due to 

be dismissed as a matter of law because they are precluded by 

his knowing and voluntary guilty plea. The Government also 

argues that Bennett’s claims are factually false and that he has 

failed to establish prejudice from his counsel’s alleged 

deficient performance. (Doc. 75). Bennett filed a Reply in 

which he further expounds on his original claims. (Doc. 78). 

II. LEGAL STANDARDS

1. Habeas Standard.

 

6 Upon review, the undersigned finds that no evidentiary 

hearing is warranted because Bennett’s claims can be resolved 

based on the existing record. Schultz v. Wainwright, 701 F.2d 

900, 901 (11th Cir. 1983) ("An evidentiary hearing is not 

required where, as here, the district court can determine the 

merits of the ineffectiveness claim based on the existing 

record."); see also Aron v. United States, 291 F.3d 708, 715 

(11th Cir. 2002) ("[D]istrict court is not required to hold an 

evidentiary hearing where the petitioner's allegations are 

affirmatively contradicted by the record, or the claims are 

patently frivolous.")(citation omitted); Mobley v. United

States, No. 12-354-WS-C, 2013 U.S. Dist. LEXIS 116670, at *51,

2013 WL 4166553, *23 (S.D. Ala. Aug. 15, 2013) ("There is no 

need for an evidentiary hearing [because] [o]n the existing 

record, Mobley has not presented non-conclusory facts that, if 

true, would entitle her to relief."). See also, San Martin v. 

McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011)(quoting Pugh v. 

Smith, 465 F.3d 1295, 1300 (11th Cir. 2006)("'An evidentiary 

hearing may be necessary where the material facts are in 

dispute, but a petitioner is not entitled to an evidentiary 

hearing when his claims are merely conclusory allegations 

unsupported by specifics.'").

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 6 of 33
7

Habeas relief is an extraordinary remedy which "may not do 

service for a[] [direct] appeal." United States v. Frady, 456 

U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). A 

defendant who has waived or exhausted his right to appeal is 

presumed to stand "fairly and finally convicted." Id. at 164.

Unless a claim alleges a lack of jurisdiction or constitutional 

error, the scope of collateral attack has remained extremely 

limited. United States v. Addonizio, 442 U.S. 178, 185, 99 S. 

Ct. 2235, 60 L. Ed. 2d 805 (1979).

In general, claims not raised on direct appeal may not be 

considered on collateral attack. A petitioner can, however, 

overcome his procedural default of claims not raised on direct 

appeal. The burden a petitioner must meet differs, depending 

upon the type of claim he raises. First, "nonconstitutional 

claims can be raised on collateral review only when the alleged 

error constitutes a fundamental defect which inherently results 

in the miscarriage of justice or an omission inconsistent with 

the rudimentary demands of fair procedure." Burke v. United 

States, 152 F.3d 1329, 1331 (11th Cir. 1998) (citations and 

internal quotations omitted). However, a petitioner's burden 

with regard to constitutional claims not presented on direct 

appeal is slightly less stringent. 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 7 of 33
8

Constitutional claims may be considered if the petitioner 

can "show cause excusing his failure to raise the issues 

previously and actual prejudice resulting from the errors." 

Cross v. United States, 893 F.2d 1287, 1289 (11th Cir. 1990). A 

meritorious claim of ineffective assistance of counsel can 

constitute cause. U.S. v. Nyhuis, 211 F.3d 1340, 1344 (11th 

Cir. 2000).

“A defendant who enters a plea of guilty waives all 

nonjurisdictional challenges to the constitutionality of the 

conviction." Wilson v. United States, 962 F.2d 996, 997 (11th 

Cir. 1992) (citation omitted). "When a criminal defendant has 

solemnly admitted in open court that he is in fact guilty of the 

offense with which he is charged, he may not thereafter raise 

independent claims relating to the deprivation of constitutional 

rights that occurred prior to the entry of the guilty plea." 

Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. 

Ed. 2d 235 (1973). Consequently, "[i]f issues are raised and 

considered on direct appeal, a defendant is thereafter precluded 

from urging the same issues in a later collateral attack. A 

defendant is, of course, entitled to a hearing of his claims, 

but not to duplicate hearings. The appellate process does not 

permit reruns." Moore v. United States, 598 F.2d 439, 441 (5th 

Cir. 1979)(citations omitted). Therefore, when a § 2255 motion 

is filed collaterally challenging convictions obtained pursuant 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 8 of 33
9

to guilty pleas, "the inquiry is ordinarily confined to whether 

the underlying plea was both counseled and voluntary." United 

States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 772, 102 L. 

Ed. 2d 927 (1989).

2. Ineffective Assistance of Counsel Standard.

The Sixth Amendment gives criminal defendants the right to 

effective assistance of counsel. U.S. CONST., amend. VI; 

Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). The Supreme Court has held that the 

Sixth Amendment right to effective assistance of counsel extends 

to plea negotiations. Missouri v. Frye, 132 S. Ct. 1399, 1404-

08, 182 L. Ed. 2d 379 (2012). "Thus, criminal defendants are 

'entitled to the effective assistance of competent counsel' 

during plea negotiations." Frank v. United States, 522 F. App’x

779, 781 (11th Cir. 2013) (citation omitted). The Supreme Court 

adopted a two-part standard for evaluating claims of ineffective 

assistance of counsel in Strickland, 466 U.S. 668. The Court 

held that "[when] a convicted defendant complains of the 

ineffectiveness of counsel's assistance, the defendant must show 

that counsel's representation fell below an objective standard 

of reasonableness." Id. at 687-88. Of course, there is a 

strong presumption that counsel's conduct fell within the range 

of reasonable professional assistance. Id. at 689. Counsel's 

performance is deficient only if it falls below the wide range 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 9 of 33
10

of competence demanded of attorneys in criminal cases. Id. In 

addition, "[the] defendant must show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id. at 

694. This additional "prejudice" requirement was based on the 

conclusion that "[an] error by counsel, even if professionally 

unreasonable, does not warrant setting aside the judgment of a 

criminal proceeding if the error had no effect on the judgment." 

Id. at 691. 

III. DISCUSION

1. Claim One: Ineffective Assistance of Counsel due to 

Timing of Bennett’s Debriefing by Investigators.

In his petition, Bennett argues that his trial counsel was 

ineffective because he denied him the opportunity to be 

“debriefed by investigators” prior to entering his plea 

agreement, and that he allowed “his client to offer up 

information prior to an agreement” thereby hindering his ability 

to receive a lesser sentence. (Docs. 68 at 4, 78 at 2).

Bennett also contends that trial counsel “allowed Bennett to 

waive almost all of his rights by signing a plea agreement that 

was not voluntary, was not knowing, and was unintelligently 

given.” (Doc. 78 at 2). Based upon a review of Bennett’s 

petition and the record, the Court finds this claim is due to be 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 10 of 33
11

denied as Bennett has failed to show that his trial counsel was 

ineffective or that he was prejudiced. 

Turning first to Bennett’s claim that his plea was not 

knowing and voluntary, the Court observes that a plea of guilty 

is "constitutionally valid" if "voluntary" and "intelligent." 

Bousley v. United States, 523 U.S. 614, 618 (1998)(citation 

omitted). A plea is voluntary in a constitutional sense if it 

was "entered by one fully aware of the direct consequences of 

the plea," and not induced by threats, misrepresentation, or 

"promises that are by their nature improper as having no proper 

relationship to the prosecutor's business." Id. at 619 

(citations and internal quotation marks omitted). A plea is 

intelligent in a constitutional sense if a criminal defendant 

received "real notice of the true nature of the charge against 

him." Id. at 618 (citations and internal quotation marks 

omitted). If the defendant "was advised by competent counsel, 

was in control of his mental faculties, and was made aware of 

the nature of the charge against him," his plea was entered 

intelligently even if at the time of the plea, he "did not 

correctly assess every relevant factor entering into his 

decision." Id. at 619 (citations and internal quotation marks 

omitted).

The record reflects that on September 21, 2009, District 

Judge Steele conducted a full and sufficient plea colloquy with 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 11 of 33
12

Bennett as required by Federal Rule of Criminal Procedure 11. 

(See Doc. 61). Bennett was placed under oath and warned of the 

possibility of a perjury charge if he answered any of the

Court's questions falsely during the proceedings. (Id. at 4). 

Bennett testified that he was 34 years old and had completed the 

Eleventh grade. (Id. at 5). He also testified that he was not 

"currently under the influence of any drug, medication, or 

alcoholic beverage" which would affect her ability to 

participate in the proceedings. (Id. at 7). Of particular 

significance to Bennett’s claim is the following exchange which 

took place during the guilty plea hearing:

THE COURT: Have [] you received a copy of the 

indictment or information in your case, have you had a 

full opportunity to read it and review it with your 

attorney, and do you understand the charges contained 

in the indictment or information? Mr. Bennett?

DEFENDANT: Yes, sir.

. . . .

THE COURT: Are [] you fully satisfied with the 

representation you've received from your attorney in 

this case, and have you fully discussed with your 

attorney all the facts surrounding the charge? Mr. 

Bennett?

DEFENDANT: Yes, sir.

. . . .

THE COURT: Now, I've been furnished [a] written plea 

agreement[] in [] your case[], and this plea agreement 

appears to have your signature in a couple of places, 

at the end of the plea agreement and also at the end 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 12 of 33
13

of the factual resume. Did you, in fact, sign the 

document? Mr. Bennett?

DEFENDANT: Yes, sir.

. . . .

THE COURT: By signing this document, you are 

acknowledging that you received a copy of it, that 

you've had an opportunity to review it and discuss it 

with your attorney, and that you agree - - that you 

understand the terms and conditions of the plea 

agreement and the factual resume, and that you agree 

with it. Is that true? Mr. Bennett?

DEFENDANT: Yes, sir.

. . . .

THE COURT: All right. Have there been promises made to 

you by anyone or has anyone attempted in any way to 

force you to plead guilty or to pressure you or 

threaten you in any way? Mr. Bennett?

DEFENDANT: No, sir.

THE COURT: Now, the penalties that could be imposed if 

convicted of [Count One of the indictment] are 

outlined in your plea agreement on page three . . . . 

Okay. If convicted of those three counts, you could 

receive a term of imprisonment up to 30 years, fine 

not to exceed $2 million, a supervised release term up 

to six years, and a mandatory special assessment of 

$100 for each count. You understand that? 

DEFENDANT: Yes, sir.

. . . .

THE COURT: The way in which the Sentencing Guidelines 

apply to your case might be affected by what you say 

to the Court and to the probation officer. The Court 

will not be able to determine an appropriate sentence 

for your case until after a presentence report has 

been completed and you and the United States have had 

an opportunity to challenge the facts reported by the 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 13 of 33
14

probation officer. Do you understand that, Mr. 

Bennett?

DEFENDANT: Yes, sir.

. . . . 

THE COURT: The sentence imposed might be different 

from any estimate your attorney or anyone else might 

have given you. Do you understand that, Mr. Bennett?

DEFENDANT: Yes, sir. 

. . . .

THE COURT: If the sentence is more severe than you 

expected or if I do not accept the sentencing

recommendation in your plea agreement, you will still 

be bound by your plea. Even if you do not like 

sentence imposed by the Court, you will not be able to 

withdraw your plea. The time to make that decision is 

now. Do you understand that, Mr. Bennett?

DEFENDANT: Yes, sir. 

. . . . 

THE COURT: Okay. All right. Mr. Bennett, did you,

in fact, commit the acts and do the things that you 

have admitted to in this statement of facts?

DEFENDANT BENNETT: Yes, sir.

THE COURT: Then I find that the facts and acts to

which you have admitted support a violation of the 

charges contained in Counts One through Three of the 

indictment. How do you now plead to those charges, 

guilty or not guilty?

DEFENDANT BENNETT: Guilty.

(Id. at 7-21). “There is a strong presumption that the 

statements made during the [plea] colloquy are true." United 

States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). "[W]hen a 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 14 of 33
15

defendant makes statements under oath at a plea colloquy, he 

bears a heavy burden to show his statements were false." United 

States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Moreover, 

a defendant's representations regarding the voluntary nature of 

his plea "constitute a formidable barrier in any subsequent 

collateral proceedings. Solemn declarations in open court carry 

a strong presumption of verity." Blackledge v. Allison, 431 

U.S. 63, 74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). 

As noted, during the guilt plea hearing, Bennett affirmed, 

under oath, that he was “fully satisfied” with the legal 

representation provided by Knight. (Doc. 61 at 3, 9). Bennett 

acknowledged that he had been given the opportunity to read and 

discuss the plea agreement with his attorney before he signed it 

and that he understood the terms of the plea agreement. (Id. at 

9-10). Bennett also stated that he understood the potential 30-

year sentence he was facing, in light of his admission to 

possessing with the intent to distribute crack cocaine, and 

further acknowledged his understanding that the Court would not 

determine an appropriate sentence for his case until after a 

presentence report had been completed by the probation office. 

(Id. at 11, 16). Given Bennett’s signed Plea Agreement, and his 

acknowledgements during the plea colloquy, it is clear that 

notwithstanding his assertions to the contrary, his guilty plea 

was knowing and voluntary. 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 15 of 33
16

Next, Bennett makes the confusing argument that his trial 

counsel was ineffective because he should have allowed Bennett 

to be debriefed prior to entering the plea agreement, and that 

he should not have allowed Bennett to “offer up information” 

prior to securing an agreement with the government. At the 

outset, the undersigned notes that this argument is confusing 

because on the one hand Bennett is complaining that his 

debriefing came too late, and on the other hand, he appears to 

argue that it should not have occurred until after an agreement 

had been reached. Either way, he has failed to establish that 

his trial counsel was ineffective or that he was prejudiced. 

First, it is simply not conceivable that the government would 

have reached an agreement to make a 5k1.1 motion on behalf of 

Bennett without first receiving and evaluating any information 

offered by him. 7 Thus, to the extent he is arguing that an 

agreement for a 5k1.1 motion should have been secured before he 

offered information and entered his guilty plea, that argument

is absurd. Plus, the record reflects that the plea agreement 

signed by Bennett expressly provided that procuring a § 5K1.1 

motion was completely at the discretion of the government based 

 7 18 U.S.C.S. App’x § 5K1.1 (“Upon motion of the government 

stating that the defendant has provided substantial assistance 

in the investigation or prosecution of another person who has 

committed an offense, the court may depart from the 

guidelines.”).

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 16 of 33
17

on its satisfaction with the cooperation he provided.8 (Id. 7-

8). Accordingly, in signing the plea agreement, Bennett was 

fully aware that any information he provided would be evaluated 

by the Government in order to determine if it amounted to 

substantial assistance so as to warrant a motion for a downward 

departure. Finally, Bennett concedes that he was in fact 

allowed an opportunity to cooperate with the Government, and 

that he gave the Government the names of his drug sources after 

his arrest and attempted to contact “other drug dealers trying 

to make buys from them to cooperate with the [Government].” 

(Doc. 61-1 at 13). At Bennett’s sentencing hearing, the 

Government addressed his purported cooperation and why it did 

not warrant a request for a downward departure. (Id. at 14). 

Specifically, the Government argued that “here is a defendant 

who in one breath says that he’s tried to cooperate, and in the 

other breath, he was calling people to destroy evidence for him 

 

8 The plea agreement expressly provided that “[i]f the 

defendant’s effort to cooperate with the United States does not 

amount to substantial assistance as determined solely by the 

United States, the United States agrees to recommend to the 

district judge who sentences the defendant that the defendant 

receive a sentence at the low end of the applicable advisory 

guideline range or the minimum sentence as required by statute, 

whichever is applicable.” (Doc. 19-1 at 8). Additionally, the 

statutory provision providing for downward departures from the 

sentencing guidelines authorizes departures based solely on a 

motion from the government. 18 U.S.C.S. App’x § 5K1.1. 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 17 of 33
18

to avoid getting caught with substantial, more substantial 

quantities of drugs.” (Id.). Given that the Government retained 

complete discretion about whether to file a § 5k1.1 motion, that 

Bennett was fully aware of such at the time he signed the plea 

agreement, and entered his guilty plea, and that he was in fact 

afforded an opportunity to cooperate, he cannot establish that 

his trial counsel was ineffective. 

Moreover, Bennett cannot establish prejudice under 

Strickland. As noted supra, a petitioner claiming ineffective 

assistance of counsel during the plea process must show that 

there is a reasonable probability that, but for counsel’s 

errors, he would not have pled guilty and would have insisted on 

going to trial. Lafler v. Cooper, 132 S. Ct. 1376, 1384-85, 182 

L. Ed. 2d 398 (2012); accord Missouri v. Frye, 132 S. Ct. 1399, 

1409-10, 182 L. Ed. 2d 379 (reiterating that the Hill v. 

Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) 

standard applies when “a defendant complains that ineffective 

assistance led him to accept a plea offer as opposed to 

proceeding to trial.”). Bennett has not alleged, let alone 

demonstrated that but for his counsel’s alleged errors, he would 

have insisted on going to trial.9

 9 Based on information contained in the Factual Resume 

attached to Bennett’s Plea Agreement, a plea agreement was 

clearly his most viable option. Per the Factual Resume, law 

enforcement officials made three recorded, controlled buys of 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 18 of 33
19

2. Claim Two: Ineffective Assistance of Counsel Due to 

Conflict of Interest and Uninformed Waiver of Rights.

In his § 2255 petition, Bennett also argues that he 

received ineffective assistance of counsel from Knight because: 

1) Knight continued to represent Bennett knowing of a conflict 

of interest and 2) Knight failed to inform him that entering 

into a plea agreement with the Government “waived all [his] 

rights to appeal.” (Doc. 68 at 5). The Court will take each of 

these arguments in turn. 

To obtain relief on a § 2255 motion predicated on a 

conflict of interest impairing one's Sixth Amendment right to 

counsel, "a defendant must show first, that his attorney had an 

actual conflict of interest, and second, that the conflict 

adversely affected counsel's performance." Pegg v. United 

 

crack cocaine from Bennett from August 4, 2008 through September 

10, 2008. (Doc. 19-1). Per the factual resume:

Bennett was eventually arrested on the charges on or 

about August 10, 2009. Bennett was advised of his 

Miranda rights and he agreed to waive his rights and 

make a statement. He admitted that he had seen 

surveillance vehicles on the Friday before and he had 

to throw way his drugs to avoid being caught with them 

. . . He said he had dealt with several guys in Atmore 

since he got out of prison, but he identified his main 

source of supply as a subject in Prichard.

He said he had received a complete of ounces at a time 

every other week for the past year from this subject, 

and that amount would total at least a kilogram of 

crack cocaine.

(Doc. 19-1 at 15).

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 19 of 33
20

States, 253 F.3d 1274, 1277 (11th Cir. 2001)(emphasis in 

original). To satisfy the "actual conflict" requirement, a 

petitioner: 

must show something more than a possible, speculative 

or merely hypothetical conflict . . . [He] must make 

a factual showing of inconsistent interests and must 

demonstrate that the attorney made a choice between 

possible alternative [courses] of action, such as 

eliciting (or failing to elicit) evidence helpful to 

one client but harmful to the other.

Reynolds v. Chapman, 253 F.3d 1337, 1342-43 (11th Cir. 2001) 

(citations omitted); see also Quince v. Crosby, 360 F.3d 1259, 

1264 (11th Cir. 2004) ("An 'actual conflict' of interest occurs 

when a lawyer has 'inconsistent interests.'"). To satisfy the 

"adverse effect" requirement, "a habeas corpus petitioner must 

show: (1) the existence of a plausible alternative defense 

strategy or tactic that might have been pursued; (2) that the 

alternative strategy was reasonable under the facts; and (3) a 

link between the actual conflict and the decision to forgo the 

alternative strategy of defense." Pegg, 253 F.3d at 1278; see 

also Quince, 360 F.3d at 1264. 

Bennett fails to satisfy any elements necessary to 

establish that a conflict of interest prejudiced his 

constitutional right to counsel. The record shows that Mr. 

Knight was appointed as defense counsel for Bennett on August 

11, 2009. (Doc. 9). Bennett signed an agreement to plead 

guilty on September 18, 2009 (Doc. 19-1 at 11) and entered a 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 20 of 33
21

plea of guilty in open court on September 21, 2009. (Doc. 61). 

On September 23, 2009, Bennett wrote a letter to Knight 

requesting that Knight withdraw as his attorney.10 (Doc. 73 at 

8-10). On November 3, 2009, Knight filed a motion requesting an 

“audience with the Court regarding [Knight’s] continued 

 10 Within the letter, Bennett identified his reasons for 

requesting new counsel were due to disagreements the two had had 

and just not seeing “eye to eye.” (Doc. 73 at 8). The letter 

contained the following statements: 

I have never been satisfied with the very minimum 

amount of information you provide me with about my 

case. You’ve only given me “possible senarios” [sic] 

leaving me with very little information to make 

important decisions with. 

But first and foremost you have told me more than 

twice “You shouldn’t have done it.” That statement 

indicates to me that you have already found me guilty 

and not worthy of a strenuous representation. Your 

actions shows [sic] the same as well. There were 

specific requests I made to you that seems to have 

gone ignored. 

Such as my numerous requests that you arrange an 

interview for me with the agents on my case. You 

haven’t done so and I’ve already changed my plea. By 

you not arranging the interview, you are disallowing 

me an opportunity to negotiate a 5K1 deal which would 

result in me possibly receive a lesser sentence than 

what I’m now facing. 

. . . .

I am no longe[r] confident that you’re 

representing me to the best of your ability after you 

deemed me guilty. That was my sole reason for 

pleading guilty. You did not seem to be fighting for 

me.

(Doc. 73 at 8-9).

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 21 of 33
22

representation of [Bennett] because of “disagreements with [] 

counsel regarding the manner in which he is being represented.” 

(Doc. 21 at 1). The Court scheduled a hearing November 17, 

2009; however, prior to the hearing, Knight, on November 13, 

2009, filed a motion requesting permission to withdraw due to a 

conflict of interest. (Docs. 23, 24). Per the motion, Knight 

had “discerned that an actual conflict of interest has arisen in 

the representation of the Defendant” due to the fact that 

another assistant federal defender was representing a defendant 

who voiced a willingness to testify against Bennett. (Doc. 23 

at 1). Accordingly, Knight immediately sought to withdraw from 

Bennett’s case. His motion was granted and new counsel was 

appointed for Bennett. (Docs. 23, 24).

Bennett fails to show inconsistent interests and does not 

demonstrate that there ever existed a circumstance where Knight 

was forced to choose between helping Bennett or another client. 

Quince v. Crosby, 360 F.3d at 1264 ("An 'actual conflict' of 

interest occurs when a lawyer has 'inconsistent interests.'"). 

Furthermore, Bennett presents no evidence that he was adversely 

affected by Knight’s representation. He presents no defense 

strategy that could have or should have been used in his case, 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 22 of 33
23

as he admitted guilt upon arrest. 11 Thus, his claim regarding 

Knight’s conflict of interest must fail.

The Court further finds absolutely no merit in Bennett’s 

claim that he was unaware that by entering a guilty plea, he

 11 Bennett also argues that Knight rendered ineffective 

assistance because he failed to file a motion to suppress “a 

phone call that was used to increase Bennett’s sentence.” (Doc. 

78 at 3). The phone call at issue was made after Bennett was 

read his Miranda rights, was handcuffed, and placed in the 

patrol car on August 10, 2009. (Doc. 70 at 4). The police car 

was equipped with video and audio equipment, which recorded the 

phone call placed to his mother. (Doc. 30 at 1; Doc. 70 at 4). 

During the phone call, Bennett instructed his mother to remove 

“that stuff” from on top of the refrigerator and flush it down 

the toilet. (Doc. 70 at 4).

Binding precedent is clear that:

[t]o obtain relief where an ineffective assistance 

claim is based on trial counsel's failure to file a 

timely motion to suppress, a petitioner must prove (1) 

that counsel's representation fell below an objective 

standard of reasonableness, (2) that the Fourth 

Amendment claim is meritorious, and (3) that there is 

a reasonable probability that the verdict would have 

been different absent the excludable evidence.

Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006); 

see also Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 

2574, 91 L. Ed. 2d 305 (1986) ("Where defense counsel's failure 

to litigate a Fourth Amendment claim competently is the 

principal allegation of ineffectiveness, the defendant must also 

prove that his Fourth Amendment claim is meritorious . . . ."). 

The second element is dispositive here. The Court finds that § 

2255 relief is unwarranted on this claim because there was no 

underlying constitutional violation with respect to Bennett’s 

phone call and statements made, such that any suppression motion 

would have failed, because Bennett was in custody for purposes 

of Miranda because there had been a formal arrest. United 

States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009). Thus, 

Bennett’ claim predicated on Knight’s failure to seek 

suppression of the phone call must fail. 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 23 of 33
24

waived many of his appeal rights. (Doc. 68 at 5). Bennett was 

notified on numerous occasions that entering a plea agreement

limited his right to appeal. On page nine of Bennett’s signed 

plea agreement, in bold print and capital letters, it states 

“LIMITED WAIVER OF RIGHT TO APPEAL SENTENCE.” (Doc. 19-1 at 9.) 

The plea agreement details:

The defendant acknowledges that he is aware that 18 

U.S.C. § 3742 affords a defendant the right to appeal 

the sentence imposed. In exchange for the

recommendations made by the United States in this Plea 

Agreement, the defendant knowingly and voluntarily 

waives the right to appeal any sentence imposed in 

this case. "Any sentence imposed" includes any

proceeding relating to the modification or revocation 

of the supervised release term.

With the limited exceptions noted below, the defendant 

also waives his right to challenge any sentence so 

imposed, or the manner in which it was determined, in 

any collateral attack, including but not limited to, a 

motion brought under 28 U.S.C. § 2255.

The defendant reserves the right to contest in an 

appeal or post-conviction proceeding any of the 

following:

a. Any punishment imposed in excess of the 

statutory maximum; 

b. Any punishment constituting an upward

departure from the guideline range; or

c. A claim of ineffective assistance of counsel.

In addition, the defendant reserves the right to 

petition the court for resentencing pursuant to 18 

U.S.C. § 3582 in the event of a future retroactive 

amendment to the Sentencing Guidelines which would 

affect the defendant's sentence. 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 24 of 33
25

(Doc. 19-1 at 9-10, ¶¶ 17-20). Furthermore, at the plea 

colloquy, Bennett acknowledged that he understood he was waiving 

his right to appeal the sentence imposed. Specifically, the 

following exchange took place at the guilty plea hearing:

THE COURT: You also have the right to waive your right 

to appeal, and I see by your plea agreements that you 

are waiving your right to appeal any sentence imposed 

with the following exceptions: And that would be any 

punishment in excess of the statutory maximum, any 

punishment constituting an upward departure of the 

guideline range, and any claim of ineffective 

assistance of counsel. 

Do you understand that, Mr. Bennett?

DEFENDANT: Yes, sir.

(Doc. 61 at 17-18). As noted supra, "[t]here is a strong 

presumption that the statements made during the [plea] colloquy 

are true." Medlock, 12 F.3d at 187. "[W]hen a defendant makes 

statements under oath at a plea colloquy, he bears a heavy 

burden to show his statements were false." United States v. 

Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

Based on the record before the Court, the undersigned finds 

that Bennett entered into the plea agreement, which included the 

sentence appeal waiver, that he acknowledged his understanding 

of the waiver, and that he acted knowingly and voluntarily in 

entering said agreement. Based on the express terms of the 

sentence appeal waiver contained in Bennett’s plea agreement, 

the Court finds that he had full knowledge that entering into 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 25 of 33
26

the plea agreement waived and/or limited his appeal rights. 

Accordingly, this claim must fail. 

3. Claim Three: Ineffective Assistance of Counsel at 

Sentencing.

Bennett’s Motion to Vacate, Set Aside, or Correct Sentence 

under 28 U.S.C. § 2255 includes a claim for ineffective 

assistance of counsel at sentencing based on Mr. Brutkiewicz’s 

alleged failure to investigate or prepare for the sentencing 

hearing. (Doc. 68 at 7). Specifically, Bennett claims counsel 

failed in his role as an advocate because he did not provide a 

“full and effective defense,” because counsel did not procure a 

§ 5K1.1 deal with the government as agreed, did not argue 

relevant conduct at the sentencing hearing, and did not file a 

motion to suppress evidence.12 (Doc. 78 at 4). 

 12 As discussed, supra at note 11, Bennett cannot establish a 

claim for ineffective assistance of counsel(with respect to his 

statements during his phone call to his mother). The evidence 

at issue was given by Bennett following his arrest and Miranda

warning. Therefore, any motion to suppress filed by Brutkiewicz 

would not have been meritorious; thus Bennett’s ineffective 

assistance claim, predicated on Brutkiewicz’s failure to file a 

suppression motion, must fail. Kimmelman, 477 U.S. at 375

("Where defense counsel's failure to litigate a Fourth Amendment 

claim competently is the principal allegation of 

ineffectiveness, the defendant must also prove that his Fourth 

Amendment claim is meritorious . . . . "). 

Furthermore, Bennett’s claim of ineffective assistance of 

counsel based on Brutkiewicz’s failure to secure a § 5K1.1 deal 

must fail as such a request for sentence variance is at the 

complete discretion of the government. See 18 U.S.C.S. App’x § 

5K1.1 And, as previously discussed, the government was clear in 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 26 of 33
27

As discussed previously, under Strickland, in order to 

establish a claim for ineffective assistance of counsel, a 

petitioner is required to show (1) that his attorney's 

representation "fell below an objective standard of 

reasonableness" and (2) that a reasonable probability exists 

that but for counsel's unprofessional conduct, the result of the 

proceeding would have been different. Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). 

The record shows that the Court appointed Mr. Brutkiewicz

as counsel for Bennett on November 13, 2009, subsequent to 

Bennett’s entering a plea of guilty. (Doc. 23). In attempt to 

prepare for Bennett’s sentencing hearing, Brutkiewicz actively 

sought discovery information regarding Bennett’s case; 

specifically, he was persistent in obtaining the debriefing 

statement from the government in order to prepare for Bennett’s 

sentencing, 13 he visited Bennett four or five times in Perry 

County, and corresponded with him numerous times by mail. (Doc. 

61-1 at 4). In the course of representing Bennett, Brutkiewicz 

 

its position as to its refusal to move for a § 5K1.1 sentencing 

departure; the government stating that, “in one breath [Bennett] 

says that he’s tried to cooperate, and in the other breath he 

was calling people to destroy evidence for him to avoid getting 

caught with substantial, more substantial quantities of drugs.” 

(Doc. 61-1 at 14). 

13 After repeatedly requesting the debriefing statement from 

the government, by letters dated February 22, 2010, and March 4, 

2010, and a telephone message on April 5, 2010; Brutkiewicz 

filed a motion for production. (Doc. 26). Thereafter, the 

government produced the requested discovery documents. 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 27 of 33
28

filed a written objection to the PSR after the government argued 

that relevant conduct, including obstruction of justice and 

engaging in illegal activity while maintaining custody of a 

minor child, should be taken into account in determining the 

appropriate sentencing guideline range. (Docs. 30, 35). 

Brutkiewicz also made oral objections to the sentencing 

guideline range contained in the PSR. Brutkiewicz further 

argued at the sentencing hearing that the Court should apply 

less than a hundred to one crack to powder cocaine ratio 14 and 

objected to the obstruction of justice enhancement.15 (Doc. 61-1 

at 5-6). 

 14 Brutkiewicz urged the Court to adopt a one to one ratio of 

powder cocaine to crack cocaine that would decrease Bennett’s 

base level offense to 26 (instead of the presentencing 

recommendation of 34). (Doc. 61-1 at 5-6, 10-11; Doc. 35). 

 

15 Brutkiewicz objected to the obstruction of justice charge 

at the sentencing hearing, but his objections were overruled, 

evidenced by the exchange below:

MR. BRUTKIEWICZ: Now, I understand that they’ve not 

brought an indictment against him for obstruction of 

justice in whatever U.S. Code number that might be, 

that it is a guideline matter. But [Bennett] asked me 

to make that objection, and I explained to him that 

that’s not a new charge. He’s not facing a new 

charge. It’s simply a sentencing factor. But 

nevertheless, I think he is correct in arguing that 

it’s irrelevant with regard to the prosecution of the 

case. 

. . . . 

THE COURT: . . . I think that [the phone call placed 

by Mr. Bennett to his mother] clearly fits the 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 28 of 33
29

With an adjusted base level of 33, Bennett faced a 

guideline range of 188 to 235 months imprisonment. (Doc. 70 at 

16). Ultimately, the Court concluded that the minimum guideline 

range sentence of 188 months best accomplished the sentencing 

objectives under 18 U.S.C. § 3553(a). (Doc. 61-1 16). Contrary 

to Bennett’s assertions, there is no evidence before this Court 

that demonstrates that Brutkiewicz’ representation of Bennett 

fell below the Strickland standard of 

"objective reasonableness". Additionally, Bennett has failed to 

show prejudice. Accordingly, his third claim is likewise due to 

be dismissed. 

IV. CERTIFICATE OF APPEALABILITY

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

Proceedings, the undersigned 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 

 

definition of obstruction of justice under the 

Guidelines and find that that guideline enhancement is 

appropriate to the facts and circumstances of this 

case. So, the objection to that application is 

overruled.

(Doc. 61-1 at 6, 9).

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 29 of 33
30

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 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. § 2253(c)(2)(2006).

Where a habeas petition is being denied, in part, 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, 146 L. Ed. 2d 542 (2000). Where a habeas 

petition is being denied on the merits of an underlying 

constitutional claim, a certificate of appealability should 

issue only when the petitioner demonstrates "that reasonable 

jurists would find the district court's assessment of the 

constitutional claims debatable or wrong." Id. ("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 v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 

3383, 77 L. Ed. 2d 1090 (1983), includes showing that reasonable 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 30 of 33
31

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.") (internal quotation marks 

omitted); accord Miller-El v. Cockrell, 537 U.S. 322, 336, 123 

S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

None of Bennett’s claims are such as would warrant the 

issuance of a Certificate of Appealability. Reasonable jurists 

could not debate whether Bennett’s Claims One, Two, and Three, 

alleging ineffective assistance of counsel at the guilty plea 

and sentencing stages should be resolved in a different manner 

or deserve to proceed further. The recommendation that these 

claims be denied is based on the straightforward application of 

clear Circuit precedent, and no reasonable jurist could differ 

on the appropriate disposition of the claims on the record 

presented. It is thus recommended that the Court deny any 

request for a Certificate of Appealability.

V. CONCLUSION

For the foregoing reasons, it is recommended that Bennett’s

§ 2255 Motion to Vacate, Set Aside, or Correct Sentence by a 

Person in Federal Custody (Docs. 68, 73, 78) be denied and that 

judgment be entered in favor of Respondent, the United States of 

America, and against Petitioner, Von Clay Bennett. The 

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 31 of 33
32

undersigned Magistrate Judge is of the opinion that Petitioner 

is not entitled to issuance of a Certificate of Appealability, 

and thus, any appeal would not be brought in good faith. 

Accordingly, he is not entitled to appeal informa pauperis. It 

is so recommended.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order 

to be specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the basis 

for the objection, and specify the place in the Magistrate 

Judge's report and recommendation where the disputed 

determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the Magistrate Judge 

is not specific.

DONE this 7th day of August, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 32 of 33
33

Case 1:09-cr-00083-WS-B Document 93 Filed 08/07/15 Page 33 of 33