1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

UNITED STATES OF AMERICA ) 

) CRIMINAL ACTION NO. 05-0267-KD-N 

v. ) 

) CIVIL ACTION NO. 09-0116-KD-N 

CLENNON PREYEAR, ) 

) 

Petitioner. ) 

 REPORT AND RECOMMENDATION

Petitioner, Clennon Preyear, has filed a Motion to Vacate, Set Aside or Correct Sentence 

(doc. 519) pursuant to 28 U.S.C. '2255. The government has responded (doc. 549) arguing, in sum, 

that the petition is due to be denied on the grounds that petitioner’s ineffective assistance of counsel 

claims are without merit and his claim of actual innocence is belied by the record; petitioner has 

submitted a reply (doc. 552) 

Also pending in this action is petitioner=s Motion for Summary Judgment (doc. 543) and the 

government’s motion to dismiss petitioner’s supplemental claim or in the alternative denial of claim 

on the merits (doc. 563) and petitioner’s response (doc. 567). These matters have been referred to 

the undersigned for appropriate action pursuant to 28 U.S.C. '636 (b) and Local Rule 72.1(c). Upon 

a thorough review of the submissions of the parties and the record as a whole, it is recommended 

that petitioner=s Motions to Vacate, Set Aside or Correct his Sentence and for Summary Judgment be 

Denied, and that judgment be entered in favor of the Respondent. 

 Background

In a ten-count, multi-defendant indictment, Petitioner Clennon Preyear was charged with one 

count of conspiracy to possess with intent to distribute more than 50 grams of crack cocaine. 

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Another count sought the forfeiture of $2,500,000 in currency as proceeds of the crimes charged. 

Preyear proceeded to trial with his cousin and co-defendant James Preyear and, following a four day 

jury trial, Clennon Preyear was convicted of conspiracy as charged and an order of forfeiture was 

entered. 

On November 3, 2006, Clennon Preyear was sentenced to 131 months imprisonment, a fiveyear term of supervised release, and was ordered to pay a special assessment of $100.00. He 

appealed his conviction to the Eleventh Circuit Court of Appeals, arguing that the district court 

abused its discretion by denying his motions to sever his trial from that of James Preyear, and that 

the evidence against him was insufficient. His cousin James= appeal was consolidated with his own. 

 The Court of Appeals affirmed both convictions.1

 U.S. v. Preyear, 257 Fed.Appx. 214 (11th Cir. 

2007). The instant habeas petition was timely filed. 

In July 2000, police stopped two vehicles containing James Preyear and Clennon Preyear in 

Louisiana; James was a passenger in one vehicle, and Clennon was a passenger in a second vehicle, 

which was following the first. Id. at 215-16. Over a pound of cocaine was found in the fender of the 

first vehicle, a Ford Expedition. Id. Clennon told police that he did not know the occupants of the 

first vehicle (which contained his cousin James, among others) and that he was returning from 

visiting his mother in Houston. Id. 

At trial, the government offered evidence that James and Clennon distributed drugs, and the 

government presented witnesses, including other dealers, who testified that they obtained cocaine 

and marijuana from both cousins. Id. One witness testified that James and Clennon were partners. 

 1

 Petitioner thereafter filed a motion pursuant to 18 U.S.C. '3582 for retroactive application 

of the amendment of the Guidelines concerning sentencing for crack cocaine. (Doc. 396) The 

motion was granted and his sentence of imprisonment was reduced to 121 months. (Docs. 410, 434) 

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Id. Another witness, Larry Aquanta Parker, testified that he obtained cocaine from people in 

Houston and that he and Clennon distributed it in Alabama. Id. Parker testified that he had 

occasionally traveled to Houston with the Preyear cousins in a Ford Expedition to obtain the drugs, 

and that he and James had, on one such trip, cooked cocaine into crack. 

On direct appeal, the Eleventh Circuit specifically found that the evidence was sufficient to 

support both Preyear cousins= convictions on the conspiracy charge. Clennon Preyear argued that he 

had Apresented testimony, including his own, that refuted the testimony offered by the government,@

that the government=s testimony was uncorroborated, and that his Amere presence at the scene was 

insufficient to establish his participation in the conspiracy.@ Id. at 218. His cousin, James, who also 

challenged the sufficiency of the evidence on appeal, argued that Athe government failed to establish 

that he acted in concert with anyone,@ that Athere was no evidence that the trips to Houston were 

planned with a common scheme, or that money, drugs, or expenses were shared,@ and that Athe 

evidence only established that the co-conspirators traveled together@ to Houston. Id. These 

arguments were rejected by the Court of Appeals, following a review of the evidence. Id. With 

regard to Clennon, the Court also noted that, because he had testified at his trial, Athe jury was free to 

disbelieve him and use his testimony as substantive evidence of his guilt.@ Id. at 218-19. 

In his Response, petitioner attempts to add another claim for the first time—that the 

magistrate judge who handled jury selection lacked jurisdiction to grant the government’s ‘reverseBatson’ motion. However, as noted by the government in its response, the addition was made 

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without court approval and was made more than one year after his conviction and sentence became 

final, the new issue was not raised on direct appeal and is thus subject to procedural default.2

 Legal Standard

Habeas

Habeas relief is an extraordinary remedy which Amay not do service for a [ ] [direct] 

appeal.@ United States v. Frady, 456 U.S. 152, 165 (1982). A defendant who has exhausted his 

right to appeal is presumed to stand Afairly 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 (1979). Consequently, A[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).3

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, 

 2

 Petitioner again requests copies, at public expense, of three documents which include his 

signature, consenting to the magistrate judge’s authority over the jury selection process (docs. 174, 

209, 221). First, as the new claims are due to be denied on procedural grounds , as set forth below, 

the documents are not relevant to the court’s decision. Further, were the court to reach the merits, 

even a single consent would be sufficient: petitioner’s claim that there are not three such documents 

is irrelevant. Finally, all three documents include signatures of petitioner and of his attorney. 

Petitioner may obtain copies of these documents from the underlying criminal case as set forth in the 

court’s prior order on that issue. 

3

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the United States 

Court of Appeals for the Eleventh Circuit adopted as binding precedent all decisions of the former 

Fifth Circuit handed down prior to October 1, 1981. 

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Anonconstitutional claims can be raised on collateral review only when the alleged error constitutes a 

fundamental defect which inherently results in a complete 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). A petitioner=s burden with 

regard to constitutional claims not presented on direct appeal is slightly less stringent. Constitutional 

claims may be considered if the petitioner can Ashow 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). Jurisdictional issues, however, are not subject to procedural default because 

federal courts are of limited jurisdiction and the parties cannot by waiver or default confer a 

jurisdictional foundation that is otherwise lacking. Harris v. United States, 149 F.3d 1304, 1306 

(11th Cir. 1998). 

Ineffective Assistance of Counsel 

Preyear contends that he is entitled to habeas relief, on the grounds, in sum, that both his trial 

and appellate counsel were ineffective. In order to succeed on a claim of ineffective assistance of 

counsel, a petitioner must show that (1) his counsel=s performance was deficient; and (2) that the 

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668 (1984). Under 

the performance prong, the relevant inquiry is whether counsel=s representation was Aobjectively 

reasonable.@ Crawford v. Head, 311 F.3d 1288, 1311 (11th Cir. 2002). A[C]ounsel is strongly 

presumed to have rendered adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment.@ Strickland, 104 S.Ct. 2066. A petitioner can rebut this 

presumption only by proving his attorney=s representation was unreasonable under prevailing 

professional norms. Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir. 2000) (en 

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banc). ATherefore, where the record is incomplete or unclear about [counsel]=s actions, we will 

presume that he did what he should have done, and that he exercised reasonable professional 

judgment.@ Id. (quotations and citation omitted). A[S]trategic choices made after thorough 

investigation of law and facts relevant to plausible options are virtually unchallengeable; and 

strategic choices made after less than complete investigation are reasonable precisely to the extent 

that reasonable professional judgments support limitations on investigation.@ Strickland, 104 S.Ct. at 

2066. 

The petitioner=s burden of demonstrating prejudice is high. Under the prejudice prong, it is 

not enough for the defendant to show that the errors had some conceivable effect on the outcome of 

the proceeding. Instead, the petitioner must show that there is a reasonable probability that, but for 

counsel=s unprofessional errors, the result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. Wellington, 314 F.3d 

at 1260 (quotations and citations omitted). 

Evidentiary Hearing

AUnless the motion [under Section 2255] and the files and records of the case 

conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to 

be served upon the United States attorney, grant a prompt hearing thereon, determine the issues 

and make findings of fact and conclusions of law with respect thereto.@ 28 U.S.C. ' 2255. 

However, an evidentiary hearing is not required in every case. For example, no evidentiary 

hearing is required: 

$ Where the petitioner's claim is Apatently frivolous,@ Holmes v. United States, 

876 F.2d 1545, 1553 (11th Cir. 1989); 

$ Where the claim is Abased upon unsupported generalizations,@ id.; 

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$ Where the petitioner has not Aallege[d] facts that, if true, would entitle him to 

relief,@ Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002); 

$ Where the facts alleged are not Areasonably specific [and] nonconclusory,@ id. at 

714-15; 

$ A[W]here the petitioner's allegations are affirmatively contradicted by the 

record,@ id. at 715; 

$ Where the petitioner's version of the facts has already been accepted as true, 

Turner v. Crosby, 339 F.3d 1247, 1274-75 (11th Cir. 2003); and 

$ Where Athe district court can determine the merits of the ineffectiveness claim 

based on the existing record.@ Schultz v. Wainwright, 701 F.2d 900, 901 (11th 

Cir. 1983). 

With this legal framework in mind, the Court now turns to the specific grounds for relief 

raised by petitioner in the habeas petition. 

 Analysis

Petitioner raises the following three claims of ineffective assistance of counsel: 1) that his 

trial counsel was ineffective for failing to Aproperly investigate@ multiple conspiracies instead of 

single conspiracy charged; 2) that his trial counsel was ineffective for failing to raise the defense 

that the evidence showed a Abuyer-seller@ transaction rather than a conspiracy; 3) that his appellate 

counsel was ineffective for a) not raising the multiple conspiracy and buyer-seller transaction issues; 

and b) not challenging the length of the sentence. Petitioner also contends that he is Aactually 

innocent@ of the offense of which he was convicted. 

Further, in his Memorandum (doc. 522) filed on April 20, 2010, petitioner attempted to 

amend his petition to add another claim—that the magistrate judge who conducted jury selection 

lacked jurisdiction to rule on the government’s Batson challenge and to reject the initial jury chosen. 

 The court gave the parties an opportunity to address the viability of that issue on procedural and 

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substantive grounds. The government filed a Motion to Dismiss (doc. 563) that extra claim, and 

plaintiff filed a Response to that motion along with his reply in support of his habeas claim (doc. 

567). This additional claim was not filed within one year of his conviction becoming final, and was 

not raised on direct appeal. 

Petitioner=s Summary Judgment Motion4

On October 1, 2009, petitioner filed a document styled a Motion for Summary Judgment, 

(doc. 543); however, that style is misleading. In his Motion, petitioner argues that the government=s 

two extensions for the filing of the government=s response, and the fact that the second extension 

was not sought until after the deadline ran, prejudiced him by delaying his release on habeas and that 

he is therefore entitled to judgment in his favor. The court granted both extensions, finding them 

appropriate; the court had the authority to waive its own deadline and allow a late filing.5 

Petitioner=s motion, regardless of the characterization, is frivolous. The lack of merit in defendant=s 

habeas petition underscores the lack of prejudice resulting from the delay. Accordingly, it is the 

recommendation of the undersigned that Preyear=s AMotion for Summary Judgment@ be DENIED. 

 4

 In the memorandum in support of his 2255 motion and again in his motion for summary 

judgment petitioner states, in part, as follows: A...Clennon Preyear, pro se [footnote omitted] and in 

want of counsel....@ (Docs. 522, 543) To the extent that petitioner=s reference is a veiled request for 

appointment of counsel, the court has previously addressed that issue. His motion for appointment 

of counsel (doc. 109) is denied as without merit-there is no constitutional right to counsel on 

collateral review, Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 

(2007); United States v. Webb, 565 F.3d 789, 794 (11th Cir. 2009), and petitioner has demonstrated 

that he is able to represent himself. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). 

5

 The government=s response was initially due on September 10, 2009. (Doc. 532) On 

September 22, 2009 the government moved for an extension of time on the grounds, in sum, that the 

response date was missed due to a docketing error. (Doc. 538) The motion was granted on 

September 23, 2009 (doc. 540) and a new deadline of October 30, 2009 was set. The government 

filed its response on October 28, 2009 (doc. 549). 

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Magistrate’s Jurisdiction to address Batson Issue 

In the memorandum filed on April 20, 2010, petitioner included a claim not previously raised 

in his filings. Specifically, that the magistrate judge who conducted jury selection was without 

jurisdiction to rule on the government’s Batson challenge, and thus, because he granted the motion, 

declared a mistrial, and empanelled a second jury, Preyear’s conviction was somehow improper. 

Apparently, Preyear’s position is that he could not constitutionally be tried by any other jury, and 

thus should be released. As noted above, petitioner’s Memorandum (doc. 522) was filed on April 

30, 2009, more than one year after the U.S. Supreme Court denied his petition for writ of certiorari 

on March 24, 2008, rendering his conviction and sentence final for purposes of the one-year 

limitations period applicable to motions pursuant to 28 U.S.C. § 2255. The court allowed the parties 

the opportunity to brief the viability of this issue both on procedural and substantive grounds. 

Petitioner’s argument that the granting of his motion for reduction of sentence pursuant to 28 

U.S.C. § 3582(c) gives him a new one-year period in which to attack his sentence is without merit. 

See 18 USC § 3582(b) (fact that sentence can subsequently be modified under that section does not 

render judgment non-final); US v. Schwartz, 274 F.3d 1220, 1224 (9th Cir. 2001)(Section 3582 

motion does not toll one-year limitation of AEDPA); U.S. v. Norris, not reported in F.3d, 2000 WL 

521482 (D.C. Cir.) (Holding that suggestion that §3582 motion tolled time for §2255 was without 

merit, citing O’Connor v. US, 133 F.3d 548, 550 (7th Cir. 1998)). Nor is there any merit in 

petitioner’s argument, raised in his final response, that his statement in his original petition that he 

would need at least a month to brief the issues raised in the petition served to give him an extension 

of the one-year limitations period to add claims not raised in his petition. 

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By order (doc. 571) dated June 3, 2010, the court allowed Preyear one final opportunity to 

show cause why this claim should not be dismissed as untimely. Petitioner responded (doc. 572), 

claiming that his appellate counsel’s failure to file a Petition for Writ of Certiorari, allegedly while 

petitioner was under the impression that the Petition had been filed, delayed the beginning of 

petitioner’s work on his habeas motion. He also noted that the “jail house lawyer” who had advised 

him to check on the status of Certiorari, died thereafter died in June, 2009. The habeas petition was 

filed in June 2010. Petitioner apparently claims that the writ-writer’s death should entitle him to 

additional time to add claims not raised in the petition. The events cited by Preyear might have 

delayed the start of drafting his petition; there is no basis to find that they delayed the completion of 

the petition, which was timely filed, nor that they kept him from including the additional claim in his 

petition or in raising it by amendment prior to the running of the one-year limitations period. Upon 

the facts presented, there is no basis to apply equitable tolling. 

Pursuant to Fed.R.Civ.P. 15(c), a claim added by amendment may “relate back” to the filing 

of the original complaint or petition, U.S. v. Davenport, 217 F.3d 1341, 1344 (11th Cir. 2000), if it 

arises “out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the 

original pleading.” Fed.R.Civ.P. 15(c)(1)(B). 

If a prisoner amends his § 2255 motion after the statute of limitations expires, the 

new claims are untimely unless they relate back under Rule 15(c) to one of the 

claims in the original motion. Davenport [v. U.S.], 217 F.3d [1341] at 1344 [(11th

Cir. 2000)]. “ ‘Relation back’ causes an otherwise untimely claim to be considered 

timely by treating it as if it had been filed when the timely claims were filed.” Id. A 

pleading relates back to the original pleading when the pleading asserts a claim “that 

arose out of the conduct, transaction, or occurrence set out-or attempted to be set outin the original pleading.” Fed.R.Civ.P. 15(c)(1)(b). 

For a claim to relate back in a § 2255 proceeding, “the untimely claim must have 

more in common with the timely filed claim than the mere fact that they arose out of 

the same trial and sentencing proceedings.” Davenport, 217 F.3d at 1344. Instead, in 

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order to relate back, the untimely claim must have arisen from the same set of facts 

as the timely filed claim, not from separate conduct or a separate occurrence in both 

time and type.” Id. (quotation marks and citations omitted). “So long as the original 

and amended petitions state claims that are tied to a common core of operative facts, 

relation back will be in order.” Mayle v. Felix, 545 U.S. 644, 644, 125 S.Ct. 2562, 

2574. 162 L.Ed.2d 582 (2005). An amendment that serves to expand facts or cure 

deficiencies in an original claim relates back to the original claim. Dean v. United 

States, 278 F.3d 1218, 1223 (11th Cir. 2002) (per curiam). 

Mabry v. U.S., 336 Fed.Appx. 961, 962 (11th Cir. 2009). 

 There is no basis for finding that allegations of an error in empaneling the jury arises from 

the same conduct as any of petitioner’s other habeas claims of ineffective assistance of counsel for 

conduct at trial. The court thus finds that the added claim challenging the magistrate judge’s 

jurisdiction to conduct jury selection in this case does not relate back to the original petition and, 

thus, that it is barred by the one-year limitations period of 28 U.S.C. § 2255(f). 

The court finds petitioner’s arguments concerning the granting of the mistrial come too late. 

There is no basis in the record to toll the limitations period of AEDPA, and the issue does not relate 

back to the filing of the original timely petition as that petition contained no claim sufficiently 

related to satisfy Rule 15. As a further basis, the court finds that the failure to raise this issue on 

direct appeal procedurally bars the raising of this claim on collateral attack. Even if the court were 

to accept that this is a constitutional claim, petitioner has offered no explanation whatsoever for the 

failure to raise this issue on appeal. See Cross v. United States, 893 F.2d 1287, 1289 (11th Cir. 

1990).6

 Accordingly, it is recommended that the amendment be denied as futile, and the additional 

claim concerning the magistrate judge’s jurisdiction to declare a mistrial be dismissed as untimely. 

 6 Though petitioner states his claim in terms of jurisdiction, this is not a challenge to the 

jurisdiction of the trial court over this action, such as could avoid application of procedural bar.

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Habeas: Failure to Raise Separate Conspiracies

In support of his request for habeas relief petitioner Preyear claims that his trial counsel=s 

representation was constitutionally inadequate because counsel failed to argue that the evidence 

showed a series of small conspiracies rather than a single, continuing conspiracy to obtain and sell a 

controlled substance. This argument is not supported by the record, attempts to inflate a minor 

matter into one of constitutional scope, and ignores the limited role of habeas review following trial 

and direct appeal. 

In United States v. Brown, 587 F.3d 1082 (11th Cir. 2009), the Eleventh Circuit recently 

addressed a similar claim on direct appeal. AWe do not reverse convictions because a single 

conspiracy is charged in the indictment while multiple conspiracies may have been revealed at trial 

unless the variance is [1] material and [2] substantially prejudiced the defendants.@ Id. at 1092 

(quoting United States v. Alred, 144 F.3d 1405, 1414 (11th Cir. 1998)). To determine whether a 

variance was material, the court must consider the evidence in the light most favorable to the 

government and decide Awhether a reasonable jury could have found beyond a reasonable doubt that 

a single conspiracy existed.@ Id. This reflects the courts= reluctance to disturb the jury=s finding of a 

single conspiracy Aif supported by substantial evidence.@ Id. (quoting Alred, at 1414). That 

reluctance would have informed a decision on this issue either by the court of appeals or by the trial 

court following the verdict. 

Despite petitioner=s challenge, the Court of Appeals has previously ruled that the evidence 

was sufficient to support a finding of a single conspiracy, and that finding is binding upon this court. 

 Petitioner thus cannot demonstrate prejudice from his attorney=s failure to raise such a claim at trial 

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or on appeal; the prior determination also shows that the variance, if any, was not material. 

Accordingly, the undersigned finds that this ground is without merit. 

Habeas: Failure to Raise Buyer-Seller Transaction 

Petitioner also argues that his trial and appellate counsel provided constitutionally deficient 

representation by failing to argue that the evidence demonstrated buyer-seller transactions rather 

than a conspiracy.7

Specifically, Preyear maintains that trial counsel should have argued that the Amere fact that 

sales took place cannot alone support an inference of conspiracy.@ (Doc. 522 at 9) Contrary to his 

claim, the record contains significant evidence showing more than the sale took place. The evidence 

at trial included the testimony of co-conspirators Jason Watson, Nathaniel Howard, Larry Parker, 

and McArthur Rabb. They paint a picture of joint operations by the Preyear cousins. One described 

the cousins as partners in the drug operation and described drug transactions at which both cousins 

were present. They also clearly support Clennon Preyear=s involvement in the cooking of crack and 

the sale of drugs to other dealers, in direct conflict with Preyear=s own trial testimony denying 

traveling to Houston to purchase cocaine, denying knowledge of the cocaine found by the Louisiana 

police, and denying his sale of any drugs. The jury clearly found Preyear=s testimony not credible 

and credited the government=s evidence instead. As held by the Court of Appeals, there was 

sufficient evidence to support the jury=s verdict on the conspiracy count. 

Petitioner fails to point to evidence tending to show that there were discrete buyer-seller 

transactions involving him, and offers no new evidence other than that considered by the jury and 

 7

 While this argument is at odds with petitioner=s claim that the evidence showed multiple 

conspiracies, he is nevertheless entitled to raise both arguments. 

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found sufficient by the Court of Appeals. In order to establish a buyer-seller relationship, as 

opposed to a conspiratorial relationship, a defendant needs to establish that he purchased the drugs 

for personal use. United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999), cert. den'd, 528 

U.S. 907 (1999); United States v. Ivy, 83 F.3d 1266, 1285-86 (10th Cir. 1996). Petitioner offered no 

such evidence at trial, despite testifying in his own defense, and offers no such evidence here to 

show that his attorney could have made out a reasonable case for a buyer-seller relationship. 

Moreover, the Eleventh Circuit has recognized that there is no abuse of discretion in refusing 

to give a buyer-seller relationship jury instruction when the issue was not properly before the court. 

Gomez, supra; see United States v. Cordova, 157 F.3d 587, 597 (8th Cir. 1998) (noting that 

buyer-seller jury instruction is appropriate in Asingle transaction case involving small quantities of 

drugs consistent with personal use@); United States v. Berry, 133 F.3d 1020, 1023 (7th Cir. 1998) 

(noting that A[e]vidence of a conspiracy, as opposed to a buyer-seller relationship, may include 

transactions involving large quantities of drugs [and] prolonged cooperation between the parties@). 

Thus, under neither scenario could the jury reasonably conclude that Preyear was in a mere 

buyer-seller relationship with his cousin and the other members of the conspiracy. See United States 

v. Canino, 949 F.2d 928, 941 (7th Cir. 1991). Petitioner has failed to demonstrate prejudice from the 

alleged error by his attorney at trial or on appeal. 

Further, given Preyear=s own sworn testimony that he was not involved in the sale of drugs, 

petitioner could not cogently argueBwithout contradicting himselfBthat he was involved in separate 

drug transactions, not as a conspirator but only as a buyer. His counsel can certainly not be labeled 

constitutionally ineffective for failing to undermine his client=s testimony in this way. As stated 

above, Acounsel is strongly presumed to have rendered adequate assistance and made all significant 

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decisions in the exercise of reasonable professional judgment.@ Strickland, 104 S.Ct. 2066. 

Accordingly, this argument is without merit. 

Habeas: Failure to Raise Same Arguments on Appeal

As discussed in the preceding sections, Petitioner=s appellate counsel was likewise not 

constitutionally ineffective for failing to raise these underlying issues on appeal. Miller v. Dugger,

858 F.2d 1536, 1538 (11th Cir. 1988) (on claim of ineffective assistance of appellate counsel, court 

must examine merits of issues counsel failed to raise). Given the lack of merit to the underlying 

arguments, the court also finds that appellate counsel acted within the bounds of competence in 

failing to raise these claims on appeal. See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 

1992) (It is not ineffective to fail to appeal on meritless argument). 

Habeas: Failure to Challenge Sentence on Appeal

Petitioner also challenges his appellate counsel=s failure to challenge the sentence imposed. 

The record reflects that, at sentencing, Preyear’s counsel objected to the amount of cocaine baseB1.5 

kilogramsBattributed to Preyear. The sentencing judge examined the testimony of trial witnesses to 

calculate the amount of drugs it found for sentencing purposes. (See doc. 375 at p. 9 et seq.) Jason 

Watson testified to seeing Preyear with three to four ounces of crack, on which the court ascribed 85 

grams (three ounces) of crack to defendant. Id. at 8-9. Due to questions concerning a witness=

credibility on the amounts involved, the court declined to calculate amounts based on testimony of 

Tyrone Howard that he had seen Preyear with approximately three ounces of powder cocaine and 

had seen him on other occasions selling crack and powder cocaine on Marengo Street and Clausel, 

and that he had seen another co-conspirator, Lucky Stevens, cook crack between 10 and 15 times. 

Id. at 9-10. The court found a half kilogram of powder cocaine obtained on July 12 attributable to 

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defendant. Id. at 21. The court also found the testimony of Aquanta Parker credible, and found that 

he had offered proof of Clennon Preyear=s involvement with two kilograms of cocaine. Id. at 16. 

Petitioner states that the court became confused about the amount of crack, from two to four 

kilograms. However, the record does not support this claim. The court rejected the government=s 

claim that Aquanta Parker had testified concerning four kilograms of cocaine attributable to 

defendant, half of which was cooked into crack; the court halved that figure. Id. at 12-14. The court 

took the testimony and Aparce[d] it to what it absolutely supports.@ Id. at 14. Specifically, the 

district judge found defendant Clennon Preyear was involved with two and a half kilograms of 

powder cocaine and 85 grams of crack and imposed a sentence in the middle of the applicable 

Guidelines range. The evidence supports the sentence imposed and defendant has offered no 

evidence to demonstrate that any competent attorney would have challenged the calculation of the 

amount of drugs on appeal. Accordingly, this ground for habeas relief is also without merit. 

Habeas: Actual Innocence

Petitioner also maintains that he is actually innocent of the charges. However, it is unclear 

what petitioner seeks to accomplish with this Aground@ for habeas relief. It is generally raised as the 

basis of an exception to procedural issues, such as the bar against second or successive proceedings 

under '2255, which would otherwise prevent consideration of the merits of a successive habeas 

petition, and is often related to newly discovered evidence claims. See e.g. Gonzales v. Sec=y, Dept. 

Of Corrections, 366 F.3d 12531273-74 (11th Cir. 2004)(second or successive petition); High v. 

Head, 209 F.3d 1257, 1270 (11th Cir. 2000)(same). A claim of actual innocence standing alone, 

without an independent constitutional violation, does not warrant post conviction relief. House v. 

Bell, 547 U.S. 518, 537-539 (2006) (explaining that actual innocence is a gateway for review of 

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defaulted constitutional claims; it is not to be confused with the standard for sufficiency of evidence, 

as an actual innocence claim involved evidence the jury did not have before it); Jordan v. Secy. 

Dept. of Corrections, 485 F.3d 1351, 1353-54 (11th Cir.), cert. denied, 552 U.S. 979 (2007) (bare 

claim of actual innocence did not establish a basis for relief; it must be asserted as a gateway to 

review of a constitutional claim); United States v. Gospidon, 2009 WL 2781529 (N.D. Fla., August 

27, 2009). The instant petition is Preyear=s first '2255 challenge to his conviction and sentence. To 

the extent that he intended by this ground to challenge the sufficiency of the evidence against him, 

that claim has already been rejected on direct appeal and petitioner offers no new evidence not 

previously considered by the Court of Appeals. 

To demonstrate Aactual innocence,@ a petitioner must show that in light of all the evidence, it 

is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 

523 U.S. 614, 623 (1998) (citations omitted). As this claim is foreclosed by the judgment of 

conviction and the mandate of the Court of Appeals, as petitioner has made no showing of actual 

innocence or of newly discovered evidence of any sort which could possibly have affected the jury=s 

verdict, and further as there appears to be no claim for relief reasonably related to this ground for the 

habeas motion, the undersigned finds no merit in this final listed ground for relief. 

Petitioner’s Motion for Summary Judgment (doc. 543)

 Preyear has filed a document styled Petitioner’s Request for Summary Judgment Pursuant to 

Habeas § 2255 Rule 12, and/or Fed.R.Civ.P. 56 (doc. 543). The basis for this motion appears to be 

the government’s failure to timely file a supplemental reply. The court raised impediments to 

petitioner’s late-filed issue, and its order had allowed the government to file a Reply to petitioner’s 

supplemental brief, if it deemed one to be necessary. The government filed a Motion for Extension 

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18 

of Time (doc. 538) explaining its oversight, and the motion was granted by the court (doc. 540). 

Regardless, for reasons which should be obvious, the court will not release a convicted felon due to a 

few days delay in a governmental response on a procedural issue. This is not an appropriate basis 

for summary judgment and the motion is DENIED. 

Need for Evidentiary Hearing

As set forth above, Athe motion and the files and records of the case conclusively show that 

the prisoner is entitled to no relief.@ 28 U.S.C. ' 2255. Accordingly, the undersigned finds an 

evidentiary hearing to be unnecessary for a determination of the claims raised by petitioner. 

Certificate of Appealability/In Forma Pauperis

Pursuant to the changes to Rule 11 of the Rules Governing Section 2255 Proceedings which 

became effective December 1, 2009, the court addresses the appealability of the recommended 

denial of plaintiff=s habeas petition. AA [COA] may issue only if the applicant has made a substantial 

showing of the denial of a constitutional right.@ Id. at ' 2253(c)(2). To make such a showing, a 

defendant Amust demonstrate that reasonable jurists would find the district court=s assessment of the 

constitutional claims debatable or wrong,@ Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 

159 L.Ed.2d 384 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 

L.Ed.2d 542 (2000)), or that Athe issues presented were >adequate to deserve encouragement to 

proceed further,= @ Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 

(2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 

(1983)). 

In the undersigned=s view, the issues petitioner has raised in his motion are not sufficiently 

substantial to justify the issuance of a certificate of appeal. Petitioner=s claims focus on alleged 

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19 

errors by his attorneys at various stages of the criminal action; however, he has not demonstrated a 

constitutional deprivation of his right to reasonably effective counsel. It is therefore recommended 

that the court find that no certificate of appealability should issue in this case. 

Additionally, the undersigned here addresses the related issue of whether any appeal of an 

order adopting this Report and Recommendation and denying habeas relief may be brought in forma 

pauperis. An appeal may not be taken in forma pauperis if the trial court certifies in writing that the 

appeal is not taken in good faith. 28 U.S.C. ' 1915(a)(3); see Fed.R.App. P. 24(a)(3)(A); Lee v. 

Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that Agood faith@ is Aan objective concept@

and that Anot taken in good faith@ is Aa synonym for frivolous@); DeSantis v. United Techs, Corp., 15 

F.Supp.2d 1285, 1288-89 (M.D.Fla.1998) (stating that good faith Amust be judged by an objective, 

not a subjective, standard@ and that an appellant Ademonstrates good faith when he seeks appellate 

review of any issue that is not frivolous@). An appeal filed in forma pauperis is frivolous if Ait 

appears that the Plaintiff has little to no chance of success,@ meaning that the Afactual allegations are 

clearly baseless or that the legal theories are indisputably meritless.@ Carroll v. Gross, 984 F.2d 392, 

393 (11th Cir. 1993). For the foregoing reasons, the undersigned recommends that the court find no 

possible good faith basis for appeal of the denial of the petitioner’s habeas claims, and thus that no 

appeal of such a ruling may be brought in forma pauperis. 

 Conclusion

For the foregoing reasons, the undersigned RECOMMENDS: 1) that defendant=s Motion for 

Summary Judgment be DENIED; 2) that the petitioner’s untimely attempt to add a claim concerning 

the Magistrate Judge’s jurisdiction to declare a mistrial be deemed a motion to amend, and that said 

motion be denied as futile, 3) that the court find no hearing to be necessary upon the record and 

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claims presented, and 4) that the Motion to Vacate, Set Aside or Correct Sentence be DENIED, 5) 

that Judgment be entered in favor of the defendant, and 6) that the judgment shall provide that no 

certificate of appealability should issue as to any claim, and that any appeal may not be brought in 

forma pauperis. 

The attached sheet contains important information regarding objections to the Report and 

Recommendation. 

DONE this the 13th day of July, 2010. 

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE=S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT 

1. Objection. 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 

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 

AStatement of Objection to Magistrate Judge=s Recommendation@ within ten [now 

fourteen] days 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. 

(Emphasis added) 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 

action 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. 

 /s/ Katherine P. Nelson 

 UNITED STATES MAGISTRATE JUDGE 

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