IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Jay Dewayne Ward, )

)

Petitioner/Defendant, ) Civil Action No. 12-00269-CG

)

v. ) Criminal No. 09-00121-CG

)

United States of America, )

)

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Jay Dewayne Ward, a federal prison inmate proceeding pro se, has 

filed a timely motion to vacate, set aside, or correct his sentence pursuant to 28 

U.S.C. § 2255 and memorandum in support (Doc. 92). The United States has filed a

response in opposition (Doc. 94), to which Ward has replied (Doc. 96).1 This action 

is now before the undersigned for entry of a report and recommendation pursuant to 

28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 

Proceedings. And, for the reasons explained herein, it is RECOMMENDED that 

Ward’s § 2255 petition be DENIED and that the Court find that he is not entitled 

to a certificate of appealability and is therefore not entitled to appeal in forma 

pauperis.

I. The Underlying Criminal Case and Direct Appeal

An eighty-eight (88)-count indictment (Doc. 1) was returned against Ward 

																																																												 1 Ward has also filed a supplemental brief, asserting that a recent decision of 

the United States Supreme Court, Alleyne v. United States, --- U.S. ----, 133 S. Ct. 2151 

(2013), affords him relief (Doc. 98).

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and his co-defendant, Earl Gene Goodson, Jr., in May 2009. The indictment 

contained one count of conspiring to manufacture more than 50 grams of 

methamphetamine, in violation of 21 U.S.C. § 846 (Count 1); 86 counts of possession 

of pseudoephedrine with knowledge that it would be used to manufacture 

methamphetamine, in violation of 21 U.S.C. § 841(c)(2)—29 against Ward and 57 

against Goodson—(Count 2 through Count 87); and one forfeiture allegation (Count 

88). In July 2009, Ward was arraigned (see Docs. 5, 7-9, 16-17), and Neil L. Hanley, 

Esq., a member of the Court’s Criminal Justice Act (CJA) Panel, was appointed to 

represent Ward (see Docs. 12, 13).

On September 21, 2009, Ward pleaded guilty, without a plea agreement, to 

all applicable counts of the indictment. (See Docs. 50, 85.) After a hearing, 

conducted March 31, 2010, Ward was sentenced to 151 months imprisonment as to 

each count, all to run concurrently. (See Docs. 68, 80.)

Ward appealed to the Eleventh Circuit (see generally Doc. 91; United States v.

Ward, 416 Fed. App’x 59 (11th Cir. Feb. 15, 2011) (per curiam)), and Mr. Hanley 

continued to represent him on direct appeal. The Eleventh Circuit found the 

sentence this Court imposed to be reasonable and affirmed. See Ward, 416 Fed. 

App’x at 61.

II. Habeas Claims

Ward asserts four claims in his habeas petition. The first three claims 

concern whether his trial and appellate counsel, Mr. Hanley, was constitutionally 

ineffective. Ward’s fourth claim is that the trial court itself committed error at 

sentencing. The four claims will be addressed in turn below. 

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A. Ineffective Assistance of Counsel Claims

1. Strickland Standard

To establish his claims of ineffective assistance of counsel, Ward is required 

to show both that his attorney’s representation fell below “an objective standard of 

reasonableness”—the “performance prong”—and that a reasonable probability 

exists that but for counsel’s unprofessional conduct, the result of the proceeding 

would have been different—the “prejudice prong.” See generally Strickland v. 

Washington, 466 U.S. 668 (1984). He “bears the burden of proof” as to both prongs

“and both prongs must be proved to prevail.” Johnson v. Alabama, 256 F.3d 1156, 

1176 (11th Cir. 2001), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926 (2002); 

accord Cooper v. Secretary, Dep’t of Corr., 646 F.3d 1328, 1351 (11th Cir. 2011). 

To succeed on the performance prong, Ward “must show that counsel’s 

performance was deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant 

by the Sixth Amendment.” Strickland, 466 U.S. at 687. “When analyzing 

ineffective-assistance claims, reviewing courts must indulge a strong presumption 

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

assistance.” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (citations 

omitted); accord Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005). That 

“presumption of reasonableness is even stronger when we are reviewing the 

performance of an experienced trial counsel.” Callahan v. Campbell, 427 F.3d 897, 

933 (11th Cir. 2005). As the Supreme Court has explained,

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“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. 

Kentucky, 559 U.S. 356, 371 (2010). An ineffective-assistance claim 

can function as a way to escape rules of waiver and forfeiture and raise 

issues not presented at trial, and so the Strickland standard must be 

applied with scrupulous care, lest “intrusive post-trial inquiry” 

threaten the integrity of the very adversary process the right to 

counsel is meant to serve. Strickland, 466 U.S. at 689-90. Even under 

de novo review, the standard for judging counsel’s representation is a 

most deferential one. Unlike a later reviewing court, the attorney 

observed the relevant proceedings, knew of materials outside the 

record, and interacted with the client, with opposing counsel, and with 

the judge. It is “all too tempting” to “second-guess counsel’s assistance 

after conviction or adverse sentence.” Id. at 689. The question is 

whether an attorney’s representation amounted to incompetence under 

“prevailing professional norms,” not whether it deviated from best 

practices or most common custom. Id. at 690.

Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 788 (2011) (some internal citations 

modified or omitted); see also Pair v. Cummins, 373 Fed. App’x 979, 981-82 (11th 

Cir. Apr. 20, 2010) (per curiam) (“The performance prong[’s] . . . standard is that of 

a reasonable attorney, not a ‘paragon of the bar’ or an ‘Aristotle’ or a ‘Clarence 

Darrow.’” (quoting Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007); Yarborough v. 

Gentry, 540 U.S. 1, 11 (2003))); Gonzalez v. United States, Nos. 09–22386–Cv–

JORDAN; 07–20759–Cr–JORDAN, 2010 WL 2367356, at *5 (S.D. Fla. Apr. 21, 

2010) (“The court’s role in reviewing ineffective assistance of counsel claims is not to 

‘grade a lawyer’s performance; instead, [the court] determine[s] only whether a 

lawyer’s performance was within ‘wide range of professionally competent 

assistance.’” (quoting Van Poyck v. Florida Dep’t of Corr., 290 F.3d 1318, 1322 (11th 

Cir. 2002))), report and recommendation adopted, 2010 WL 2366531 (S.D. Fla. June 

14, 2010).

“The test for [deficiency, moreover,] is not whether counsel could have done 

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more; perfection is not required. Nor is the test whether the best criminal defense 

attorneys might have done more.” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 

1995) (en banc). Rather, the inquiry under Strickland is limited to “whether some 

reasonable lawyer could have acted, in the circumstances, as defense counsel acted . 

. . .” Conklin v. Schoefield, 366 F.3d 1191, 1204 (11th Cir. 2004) (quoting Waters, 46 

F.3d at 1518); see also Moreno v. United States, Criminal No. 1:06–CR–461–CC–

GGB; Civil Action No. 1:10–CV–0164–CC–GGB, 2012 WL 7829200, at *4 (N.D. Ga. 

Mar. 13, 2012) (“The test [for deficiency] has nothing to do with what the best 

lawyers would have done. Nor is the test even what most good lawyers would have 

done. We ask only whether some reasonable lawyer . . . could have acted, in the 

circumstances, as defense counsel acted . . . .” (quoting White v. Singletary, 972 F.2d 

1218, 1220 (11th Cir. 1992))), report and recommendation adopted, 2013 WL 

1339718 (N.D. Ga. Apr. 1, 2013); id. (“[P]etitioner must demonstrate that ‘no 

competent counsel would have taken the action that his counsel did take.’” (quoting 

United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003))).

And, in order to avoid the distorting effects of hindsight, a habeas court must 

“evaluate the reasonableness from counsel’s perspective at the time of the alleged 

error in light of all circumstances of the case.” Griffin v. United States, 204 Fed 

App’x 792, 794-95 (11th Cir. Oct. 25, 2006) (per curiam) (citing Strickland, 466 U.S. 

at 690). Likewise, “[t]actical decisions regarding trial strategy are left to the sound 

judgment of counsel and are entitled to a ‘strong presumption’ of competence.” 

Kearney v. United States, Nos. 2:04–CR–15–1–BO; 2:09–CV–55–BO, 2010 WL 

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2402887, at *2 (E.D.N.C. June 14, 2010) (quoting Strickland, 466 U.S. at 689, and 

citing Bell v. Cone, 535 U.S. 685, 698 (2002)). For a petition challenging chosen 

trial strategies to be successful, therefore, it must not be “devoid of the factual basis 

that is required to show that counsel’s tactics were manifestly unreasonable.” Id.

In addition, Ward “must affirmatively prove prejudice” to succeed on an 

ineffective assistance of counsel claim. Butcher v. United States, 368 F.3d 1290, 

1294 (11th Cir. 2004). “[T]hat the errors had some conceivable effect on the 

outcome of the proceeding” is insufficient to show prejudice. Gilreath v. Head, 234 

F.3d 547, 551 (11th Cir. 2000) (alteration in original) (quoting Strickland, 466 U.S. 

at 693); see also Evans v. Secretary, Fla. Dep’t of Corr., 699 F.3d 1249, 1270 (11th 

Cir. 2012) (under Strickland, “a court making the prejudice inquiry must ask if the 

defendant has met the burden of showing that the decision reached would 

reasonably likely have been different absent the errors,” and that “[t]he likelihood of 

a different result must be substantial, not just conceivable” (citations omitted)).

Finally, when applying the Strickland standard, it is clear that courts “are 

free to dispose of ineffectiveness claims on either of its two grounds.” Oats v. 

Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied sub 

nom. Oats v. Moore, 527 U.S. 1008 (1999); see also Butcher, 368 F.3d at 1293 

(“[O]nce a court decides that one of the requisite showings has not been made it 

need not decide whether the other one has been.”).

2. Ground One (“Counsel rendered ineffective assistance by 

failing to raise a Booker violation; Failed to challenge the 

improper multiplier method used to calculate drug 

quantity; failed to request continuance to supplement 

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sentence memorandum; and failed to request rule of 

lenity application at sentencing.”)

All of the sub-grounds listed under Ground One, except the Booker claim, are 

asserted against Mr. Hanley in his capacity as Ward’s counsel at sentencing.

i. Failure to challenge trial court’s methodology to 

determine drug quantity

As to the second sub-claim, in sum, Ward objects to his counsel’s “failure to 

challenge the multiplier method used by the court to arrive at base offense level 34, 

which failure[, Ward contends,] violated [his] Sixth Amendment right to effective 

assistance of counsel.” (Doc. 92-1 at 5.) This sub-claim for ineffective assistance 

fails because Ward cannot show Strickland prejudice.

At the sentencing hearing, the Assistant United States Attorney sought the 

following clarification from the Court:

[AUSA] BEDWELL: . . . But if I might, one additional point of 

clarification. And I perhaps just missed it. Did the Court find that the 

sentence was appropriate even if the guidelines were incorrectly 

calculated?

THE COURT: Yes. I do find that the 151-month sentence is 

appropriate to meet the statutory purposes of sentencing . . . [e]ven if 

that was not the guideline sentence.

(Doc. 80, sentencing hearing tr., at 51:24-52:8.) And, in denying Ward’s direct 

appeal, the Eleventh Circuit—relying on this statement by the trial court—held 

that, because the sentence imposed was reasonable, “even if we were to assume that 

the court erred in its guideline calculations, the errors were harmless.”2 Ward, 416 

																																																												 2 Under the law of the case doctrine, this Court is bound by the Eleventh 

Circuit’s determination that any error in sentencing was harmless “unless one of the 

following exceptions applies: ‘(1) new evidence is presented, (2) there has been an 

intervening change in controlling law, or (3) the prior appellate decision is clearly erroneous 

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Fed. App’x at 61 (citing United States v. Keene, 470 F.3d 1347, 1348-49 (11th Cir. 

2006) (which, as characterized by the panel in Ward, “explain[ed] that a Guidelines 

calculation error is harmless, and thus does not require remand, when (1) the record 

includes evidence that the district court would have reached the same result even if 

it had decided the Guidelines issue the other way, and (2) the sentence imposed 

would be reasonable even if the Guidelines issue had been decided the other way”);

United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir. 2007)).3 Thus, because 

Ward’s “guideline calculation error was harmless, [his] counsel’s failure to raise the 

issue[; that is, object to how the Guidelines were calculated,] even if deficient, could 

not have resulted in prejudice.” Wilcox v. United States, No. 8:10–CV–1917–T–

27EAJ; Crim Case No. 8:07–CR–163–T–27EAJ, 2011 WL 5975683, at *5 (M.D. Fla. 

Nov. 29, 2011) (citing Ward, 416 Fed. App’x at 61; Keene, 470 F.3d at 1348-49); see 

also United States v. Myers, Criminal No. 08–00074–WS; Civil Action No. 10–

																																																																																																																																																																																																			

and would result in manifest injustice if implemented.’” Fisher v. United States, Criminal 

No. 07–00288–KD–N; Civil Action No. 09–00815–KD, 2012 WL 6680315, at *5 (S.D. Ala. 

Dec. 3, 2012) (quoting United States v. Lynn, 385 Fed. App’x 962, 965 (11th Cir. July 8, 

2010) (per curiam)), report and recommendation adopted, 2012 WL 6678608 (S.D. Ala. Dec. 

21, 2012). “Pursuant to this doctrine, any claim by [Ward] that his sentence was excessive 

is barred from reconsideration, even if couched as a claim of ineffective assistance of 

counsel, unless one of the above exceptions applies.” Id. (citation omitted and emphasis 

added). No new evidence has been presented. There has been no intervening change in 

controlling law. And the Eleventh Circuit’s decision on direct appeal is neither clearly 

erroneous nor will it result in manifest injustice if implemented. Thus, the law of the case 

doctrine applies.

3 See also id. (“Our review [pursuant to the factors spelled out in 18 U.S.C. § 

3553(a)] confirms that the sentence imposed here was reasonable. The district court 

considered the seriousness of the offense, the large quantity of drugs involved in the 

conspiracy in general, and the quantity with which Ward was directly involved. The court 

also cited the need to punish and deter Ward’s behavior. Based on these factors, and given 

Ward’s lengthy criminal history, we conclude that this sentence is reasonable.”); accord

United States v. Dean, 517 F.3d 1224, 1232 (11th Cir. 2008).

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00410–WS–N, 2011 WL 6102011, at *10-11 (S.D. Ala. Nov. 7, 2011) (where this 

Court unequivocally stated that it would apply the same sentence regardless of any 

asserted Guidelines error—“So, regardless of whether the Court is wrong or right 

with regard to your objections of the Guidelines as discussed, including criminal 

history points, it is of no moment because the Court finds that a guideline sentence 

does not provide the requirements of sentencing as found in Section 3553(a).”—and 

that sentence was upheld as reasonable by the Eleventh Circuit, the undersigned, 

on habeas review, noted, “[e]ven if it could be said that counsel was responsible for 

the delay in raising a challenges to the inclusion of these prior convictions, it was 

harmless error, because the Court clearly stated that it was ‘not going to matter 

anyway’”), report and recommendation adopted, 2011 WL 6101956 (S.D. Ala. Dec. 8, 

2011).4 Because Ward cannot show prejudice, this sub-claim fails.

																																																												 4 Accordingly, a “guideline error is harmless if the district court 

unambiguously expressed that it would have imposed the same sentence, even without 

the erroneous calculation.” Deonarinesingh v. United States, --- Fed. App’x ----, 2013 WL 

5763176, at *4 (11th Cir. Oct. 25, 2013) (per curiam) (citing United States v. Barner, 572 

F.3d 1239, 1248)) (emphasis added); cf. United States v. Alvarez, 506 F. Supp. 2d 1285, 

1291-92 (S.D. Fla. 2007) (“The Court made clear at sentencing that the most reasonable 

sentence under the circumstances for each Defendant was the statutory maximum 

incarceration. Because the Court would have sentenced Defendants to the same sentence 

even if the Court had found a sentencing guideline sufficiently analogous, any error is 

harmless. Because any error is harmless, the appeal will have no impact on the sentence; 

therefore, the appeal is frivolous.” (record citation omitted)).

“In contrast, where [a] district court . . . emphasize[s] that the guideline range 

influenced the sentence, [any] calculation error [is] not harmless.” Deonarinesingh, 2013 

WL 5673176, at *4 (citing United States v. Paley, 442 F.3d 1273, 1278-79 (11th Cir. 2006) 

(per curiam)). And, in such a case, it would be error for a district court, on collateral 

review, to rely on Keene and its progeny. See id. (determining that, there, “the district 

court's reliance on Keene on collateral review [was] misplaced[ because, d]uring sentencing, 

the district court repeatedly stated that it relied on the guidelines range . . . . Even though 

the court noted its authority to disregard the guidelines in reaching a sentence, it also 

emphasized that the guidelines would be ‘highly suggestive of the appropriate and proper 

sentence that should be imposed.’ [Thus, it was] clear that the erroneous calculation 

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ii. Failure to seek continuance/amend sentencing 

memorandum

Ward next contends that his counsel was ineffective because he “failed to 

seek a continuance after the sentencing hearing in order to amend or supplement 

the sentencing memorandum of law, after a careful review of the hearing 

transcripts, before the sentence was imposed. This was necessary to make a 

colorable argument concerning [the veracity of the testimony presented at the 

sentencing hearing].” (Doc. 92-1 at 9.) Ward further contends that

[i]t was impossible for counsel to make a colorable argument at 

sentencing in petitioner’s defense, without first reviewing the entire 

hearing transcripts . . . . It is only after [a] thorough review[, Ward 

argues,] could counsel [challenge the testimony given at the hearing 

testimony]. This was of great importance [because] the court based its 

sentencing determination on McDonald’s testimony where he stated 

that [Ward] “probably” provided 40,000 [milligrams] of the pills cooked 

on a weekly basis.”

(Id.)

As the excerpt above clearly demonstrates, the basis for Ward’s belief that his 

counsel was ineffective because he failed to request a continuance, to amend the 

sentencing memorandum, is that the Court committed a Guidelines calculation

error through the method it employed to determine Ward’s base offense level. As 

explained in detail above, Ward cannot show Strickland prejudice with regard to 

such a claim. Thus, this sub-claim also fails.

iii. Failure to request application of the rule of lenity

																																																																																																																																																																																																			

‘affect[ed] the district court’s selection of the sentence imposed[,’ rendering t]he erroneous 

calculation . . . not harmless.” (second quotation to Paley, 442 F.3d at 1278) (footnote 

omitted)); see also id. at *5 (“[B]ecause we would have found that (1) the district court erred 

in calculating the guidelines, and (2) the error was not harmless, Deonarinesingh has 

established prejudice” pursuant to Strickland. (citation omitted)).

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As to the final sentencing hearing sub-claim, Ward contends that, because 

“[t]he evidence [as to drug quantity at sentencing] all together was ambiguous,” he 

was entitled to the rule of lenity. (Doc. 92-1 at 8.) Because, he further contends, his 

counsel “failed to request an application of the rule of lenity, [Ward was deprived of 

the] right to effective assistance at a very critical stage of the proceeding.” (Id.)

Although Ward fails to explain how the rule of lenity operates, “[t]he 

Supreme Court has stated that ‘the rule of lenity only applies if, after considering 

text, structure, history, and purpose, there remains a grievous ambiguity or 

uncertainty in the statute such that the Court must simply guess as to what 

Congress intended.’” United States v. Carr, Criminal Action File No. 1:06–cr–275–

TCB, 2013 WL 4855341, at *5 (N.D. Ga. Sept. 11, 2013) (quoting Maracich v. 

Spears, --- U.S. ----, 133 S. Ct. 2191, 2209 (2013) (citation and internal quotation 

marks omitted)) (emphasis added)5; see also Bifulco v. United States, 447 U.S. 381, 

387 (1980) (“[T]he touchstone of the rule of lenity is statutory ambiguity.” (internal 

quotation marks omitted and emphasis added)).

“The rule of lenity may apply when interpreting the Sentencing Guidelines 

[and] provides that where there are two rational readings of the Sentencing 

Guidelines, the court should apply the interpretation giving the lease harsh 

sentence.” Childress v. United States, Criminal Case No. 00–80466, 2013 WL 

																																																												 5 In Carr, the district court held that because the defendant “was properly 

sentenced as a career offender, his argument that his counsel was ineffective for failing to 

object to his sentence[—i.e., raise the applicability of the rule of lenity—was] meritless.” Id.

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3353903, at *3 (E.D. Mich. July 3, 2013) (citing United States v. Galaviz, 645 F.3d 

347, 362 (6th Cir. 2011)); accord United States v. Jeter, 329 F.3d 1229, 1230 (11th 

Cir. 2003) (per curiam). That said, “[t]he rule of lenity does not permit [a court] to 

create an ambiguity where none exists.” United States v. Bland, 961 F.2d 123, 128 

(9th Cir. 1992); cf. Mallett v. United States, 334 F.3d 491, 504 (6th Cir. 2003) (“A 

statute or Sentencing Guideline is not ‘“ambiguous” for purposes of lenity merely 

because it [is] possible to articulate a construction more narrow than that urged by 

the Government.’” (quoting Moskal v. United States, 498 U.S. 103, 108 (1990) 

(emphasis in original))).

The rule is also “not a catch-all maxim that resolves all disputes in the 

defendant’s favor—a sort of juristical ‘tie goes to the runner.’ Rather, the rule is 

cabined to resolve ambiguous questions of law.” United States v. Gonzalez, 407 

F.3d 118, 124 (2d Cir. 2005) (collecting cases) (emphasis added). Accordingly, in 

Gonzalez, the Second Circuit, rejected am argument, similar to Ward’s here, “that 

the rule of lenity requires that factual ambiguities affecting sentencing must always 

be resolved in a defendant’s favor. Such a mandate would straightjacket a district 

court in exercising its authority—that endures post-Booker—to resolve disputed 

facts by a preponderance of the evidence when arriving at a Guidelines sentence.” 

Id. at 125 (collecting cases).

First, because if this Court “erred in its guideline calculations, [which 

necessarily included its consideration of the evidence as to drug quantity to be 

attributed to Ward,] the errors were harmless[,]” Ward, 416 Fed. App’x at 61, this 

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sub-claim suffers from the same inability to show Strickland prejudice as the subclaims discussed above. Moreover, although it does not appear the Eleventh Circuit 

has spoken to the issue, at least three courts of appeals have held, without 

reservation, that the rule of lenity does not apply to challenges to a district court’s 

drug quantity findings. See United States v. Aponte-Guzman, 696 F.3d 157, 160 (1st 

Cir. 2012) (“[T]he case law makes pellucid that the rule of lenity, which has a laserlike statutory focus, does not apply to drug-weight calculations under the 

sentencing guidelines. Such calculations do not present questions of statutory 

ambiguity and, therefore, do not raise concerns that may be redressed through an 

application of the rule of lenity.” (citations omitted and emphasis added)); Gonzalez, 

407 F.3d at 124 (“Gonzalez [ ] attempts to impose the rule of lenity to resolve an 

alleged factual ambiguity in her favor. To date, such an attempt to extend the rule 

of lenity has been addressed (and rejected) by only one other circuit. See United 

States v. McEntire, 153 F.3d 424, 438 n.16 (7th Cir. 1998) (holding in challenge to 

drug quantity finding that “[t]he rule of lenity does not apply to the district court’s 

application of the Sentencing Guidelines to the facts”). We join the Seventh Circuit 

in holding that the rule of lenity is not applicable to a district court’s fact-finding 

role at sentencing.”).

Because Ward can neither show prejudice—for the same reasons stated as to 

the first and second sentencing sub-claims—nor show that the rule of lenity should 

apply to a district court’s calculation of drug quantity pursuant to the sentencing 

guidelines, this sub-claim also fails.

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iv. Failure to argue a Booker violation to the Eleventh 

Circuit

As stated above, Mr. Hanley was also Ward’s counsel on direct appeal. And, 

without further explanation, Ward asserts that Mr. Hanley was, presumably, 

ineffective on appeal because he “failed to argue a Booker violation in the Appellate 

Court.” (Doc. 92-1 at 7.) Although

Booker holds that the Sixth Amendment right to trial by jury is 

violated where under a mandatory guidelines system a sentence is 

increased because of an enhancement based on facts found by the judge 

that were neither admitted by the defendant nor found by the jury[, 

w]hen the district court applies the Guidelines in an advisory manner, 

nothing in Booker prohibits district courts from making, under a 

preponderance-of-the-evidence standard, additional factual findings 

that go beyond a defendant’s admissions.

United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007) (citations and internal 

quotations omitted); see also United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 

2004) (“The district court’s factual findings for purposes of sentencing may be based 

on, among other things, evidence heard during trial, undisputed statements in the 

PSI, or evidence presented during the sentencing hearing.”)

Here, it is quite clear that, at sentencing, the Court “applie[d] the Guidelines 

in an advisory manner.” Smith, 480 F.3d at 1281. (See, e.g., Doc. 80 at 51:11-13 

(“As I indicated, I do find the advisory guideline range is appropriate to the facts 

and circumstances of this case and meets the statutory purposes of sentencing.” 

(emphasis added).) Thus, “[b]ecause the District Court followed the post-Booker

protocol for determining the reasonableness of [Ward’s] sentence in light of the § 

3553(a) factors, a claim of Booker error had no reasonable probability of success on 

appeal, and the failure of appellate counsel to raise it did not constitute ineffective 

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assistance.” Smith v. United States, Civil Action Nos. 1:12–CV–868–WSD–AJB, 

1:12–CV–869–WSD–AJB; Criminal Action Nos. 1:08–CR–190–WSD–AJB–8, 1:09–

CR–341–WSD–AJB–1, 2012 WL 7800836, at *6 (N.D. Ga. Nov. 20, 2012) (citing 

Strickland, 466 U.S. at 694), report and recommendation adopted, 2013 WL 

1189490 (N.D. Ga. Mar. 21, 2013).

3. Ground Two (“Counsel failed to request Brady materials 

and specific pharmacy records for impeachment 

purposes at hearing and to challenge drug quantity at 

sentencing.”)

Ward theorizes (1) that his counsel “failed to utilize the complete records 

disclosed to prepare and file a meritorious sentencing memorandum” and (2) that

his counsel either failed to “request” materials pursuant to Fed. R. Crim. P. 16 and 

Brady and/or the Government failed to disclose such materials. (Doc. 92-1 at 13; 

compare id. at 12 (“It was impossible for counsel to make a colorable argument at 

sentencing with regards [sic] to drug quantity, without first reviewing all 

statements made by coconspirators to law enforcement, and all pharmacy records, 

including Meth Check records within the government’s possession. These records 

should have been requested pursuant to [Rule] 16 and Brady . . . .”), with Doc. 96 at 

5 (in response to the Government’s argument that Ward failed to identify the 

records he contends should have been requested/disclosed, “its [sic] either that the 

Government did not disclose the Pharmacy Records for the other coconspirators, or 

that counsel neglected to request these records pursuant to Brady v. Maryland”).)

In his petition, Ward first informs the Court that “[d]uring pre-trial, the 

government disclosed coconspirators[’] statements and various records reflecting pill 

Case 1:09-cr-00121-CG-B Document 100 Filed 12/09/13 Page 15 of 32
16

purchases at various pharmacies.” (Doc. 92-1 at 10 (citing Exs. A-D [Doc. 92-2 at 4-

20] (witness statements from Carlos McDonald and Charles Stagner and records of 

drug purchases by Earl Goodson).) After making an argument as to what he 

contends should be the proper drug quantity attributable to him (see id. at 10-12), 

Ward argues,

It’s only after all these records and evidence were reviewed in their 

totality, could counsel prepare and file a meritorious sentencing 

memorandum as required by the Sixth Amendment. Likewise, these 

records and Brady Materials would have seriously impeached 

McDonald’s testimony at the hearing, wherein which he testified that 

petitioner provided him with a weekly average of 40,000 [milligrams] 

of pills. The evidence presented at the hearing fell short of the 

complete evidence in the government’s possession such as; pharmacy 

records for McDonald, Opal Miller, Shannon Montgomery, Timmy 

Williams, Charles Busby and other unnamed coconspirators, including 

statements made by any of these individuals spoken about by 

McDonald and Stagner to law enforcement and counsel failed to seek 

such critical evidence at the most critical stage of petitioner’s criminal 

proceeding.

Counsel not only failed to utilize the complete records disclosed to 

prepare and file a meritorious sentencing memorandum, but also failed 

to seek the pharmacy records for McDonald and Stagner, and the 

others who were supplying McDonald with pills during March 2008 to 

August 8, 2008. This error on counsel’s part deprived petitioner of his 

right to conduct an effective cross-examination of McDonald and 

Stagner at the hearing with impeachable materials.

(Id. at 12-13.)

First, to the extent that Ward is contending that his trial counsel was 

ineffective as to the Court’s determination of the drug quantity attributable to him, 

to calculate his guideline range, again, any guideline calculation error was 

harmless. See Ward, 416 Fed. App’x at 61; Keene, 470 F.3d at 1348-49. 

Accordingly, even if counsel was deficient in this regard, such deficiency “could not 

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17

have resulted in prejudice.” Wilcox, 2011 WL 5975683, at *5.

Next, to the extent Ward is arguing that his counsel was ineffective because 

the Government has somehow violated its disclosure obligations pursuant to Rule 

16, Federal Rules of Criminal Procedure, and Brady v. Maryland, 373 U.S. 83 

(1963),6 any “fault lay not with [counsel] but with the prosecution.” Sanders v. 

United States, Civil Action No. 07-0300-WS; Criminal Action No. 04-0256-WS, 2007 

																																																												 6 Pursuant to Brady, “prosecutors have a due-process obligation to disclose 

‘evidence favorable to an accused . . . where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.’” United States v. 

Bowe, 426 Fed. App’x 793, 798 (11th Cir. May 13, 2011) (per curiam) (quoting Brady, 373 

U.S. at 87). To establish a violation of Brady, “(1) the evidence must be favorable to the 

accused, because it is either exculpatory or impeaching; (2) the evidence must have been 

suppressed by the State, either willfully or inadvertently; and (3) the evidence must be 

material so as to establish prejudice.” Id. (quoting United States v. Naranjo, 634 F.3d 

1198, 1212 (11th Cir. 2011) (in turn quoting Stephens v. Hall, 407 F.3d 1195, 1203 (11th 

Cir. 2005))) (emphasis added).

“‘Materiality’ under Brady tracks the prejudice standard under Strickland.” Bowe, 

426 Fed. App’x at 798 (citing Jennings v. McDonough, 490 F.3d 1230, 1243 (11th Cir. 2007) 

(“The prejudice prong of Strickland incorporates the same standard used for assessing the 

materiality of evidence under Brady, i.e., ‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” (quoting 

Strickland, 466 U.S. at 694))); see also Shorter v. United States, Nos. 8:11–CV–1941–T–

24EAJ; 8:08–CR–270–T–24EAJ, 2012 WL 933331, at *6-7 (M.D. Fla. Mar. 20, 2012) 

(“Suppressed evidence is material if there is a reasonable probability that the results of the 

proceedings would have been different had the evidence been disclosed to the defense.” 

(citing United States v. Perez, 473 F.3d 1147, 1150 (11th Cir. 2006))).

While it appears that Ward’s convoluted Brady-Rule 16 argument is aimed at the 

effectiveness of his trial counsel (not targeted at the Government), and Ward only shifts the 

blame to the Government on reply, in response to the Government’s claim that he failed to 

identify the records he now claims should have been, but were not, requested/disclosed (see

Doc. 96 at 5), it is obvious that—even if a substantive Brady claim was not procedurally 

defaulted (because it was available and not presented on direct appeal)—Ward has failed to 

state a colorable claim here. See, e.g., Parker v. United States, Nos. 3:08–cv–774–J–32TEM; 

3:04–cr–244–J–32HTS, 2009 WL 2449252, at *4-5 (M.D. Fla. Aug. 7, 2009) (“Petitioner’s

proffered evidence is insufficient to support his claim that the government violated Brady

because there is little chance that disclosure of the evidence[, if such evidence actually 

exists,] would have led to a different result at trial. Petitioner’s claim to the contrary rests 

on a trail of suppositions that do not hold up when closely examined.”).

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WL 3124469, at *3 (S.D. Ala. Oct. 24, 2007) (Steele, J.) (in which the petitioner

asserted his counsel was ineffective for the Government’s failure to disclose 

allegedly available Giglio material: “The threshold defect in the petitioner’s claim is 

its failure to allege that any ‘leniency agreements’ existed at the time [counsel] 

represented him. Even if there were such agreements, and even if [counsel] was 

ignorant of them, the fault lay not with him but with the prosecution.”).

As was the case in Sanders, Ward’s order on arraignment (Doc. 17), entered 

July 20, 2009, stated, “Discovery in this action shall be conducted according 

to the requirements of Local Rule 16.13.” (Id. at 2 (emphasis in original).) “[I]t 

is the Court’s policy to rely on the standard discovery procedure as set forth in this 

Rule as the sole means of the exchange of discovery in criminal actions except in 

extraordinary circumstances.” Sanders, 2007 WL 3124469, at *3 (quoting S.D. ALA. 

L.R. 16.13(a)). And Local Rule 16.13(b), regarding initial disclosures in criminal 

cases, provides in pertinent part:

(1) Disclosure by the Government. At arraignment, or on a 

date otherwise set by the Court for good cause shown, the government 

shall tender to defendant the following:

(A) Fed.R.Crim.P. 16(a) Information. All discoverable 

information within the scope of Rule 16(a) of the Federal Rules of 

Criminal Procedure, together with a notice pursuant to 

Fed.R.Crim.P. 12(d) of the government’s intent to use this 

evidence.

(B) Brady Material. All information and material known 

to the government which may be favorable to the defendant on 

the issues of guilt or punishment, without regard to materiality, 

within the scope of Brady v. Maryland, 373 U.S. 83 (1963).

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Id. (emphasis in original).7 The order on arraignment in Ward’s case further made

it clear, moreover, that “[t]he Government tendered [these] required initial 

disclosures to [Ward] prior to or at arraignment.” (Doc. 17 at 2.) It is clear then 

that “it was up to the government, not [Mr. Hanley], to ensure that [all Rule 16 and 

Brady materials] were provided [to Ward]. Accordingly, [Ward] cannot establish 

that [counsel] performed deficiently in not obtaining any [such materials], and [any]

claim of ineffective assistance [based on the same] must fail.” Sanders, 2007 WL 

3124469, at *3.

Finally, to the extent Ward is now arguing that Mr. Hanley, an experienced 

criminal defense attorney, should have “done more”—i.e., filed a more complete 

sentencing memorandum or been more thorough when he cross-examined the 

Government’s witnesses at sentencing—such conjecture falls far short of

“[s]urmounting Strickland’s high bar . . . .” Padilla, 559 U.S. at 371; see Waters, 46 

F.3d at 1518 (“The test for ineffectiveness is not whether counsel could have done 

more; perfection is not required. Nor is the test whether the best criminal defense

attorneys might have done more.” (citing Atkins v. Singletary, 965 F.2d 952, 960 

(11th Cir. 1992) (“Trial counsel did enough. A lawyer can almost always do 

something more in every case. But the Constitution requires a good deal less than 

maximum performance.”))). It is clear that, as to presenting Ward’s position on the 

drug quantity at sentencing, Mr. Hanley acted as a reasonable attorney could have 

																																																												 7 Subsection (b)(1)(C) requires the government to unilaterally disclose “[t]he 

existence and substance of any payments, promises of immunity, leniency, preferential 

treatment, or other inducements made to prospective witnesses, within the scope of United 

States v. Giglio, 405 U.S. 150 (1972).”

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acted, in the circumstances, which is the threshold an attorney must cross to not be

ineffective under Strickland’s performance prong. Thus, Mr. Hanley “function[ed]

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 

466 U.S. at 687.8

4. Ground Three (“Counsel Failed to Seek Minor Role 

Adjustment.”)

In the PSR, Ward received no reduction for his role in the offense. (See Doc. 

60, ¶ 29.) Mr. Hanley amended Ward’s position as to the sentencing factors on 

March 26, 2010 to object to this: “The Defendant objects to not being assigned a 

minimal role and a four level reduction” (see Doc. 67), and he argued for this 

reduction at sentencing (see Doc. 80 at 45:19-46:7). Ward now contends that “a 

careful review of the disclosed evidence[] does not support a ‘minimal role’ but 

instead a ‘minor role’ . . . . Counsel failed to conduct a thorough review of the 

evidence, which failure caused him to argue for an adjustment not supported by the 

evidence.” (Doc. 92-1 at 13.)

U.S.S.G. § 3B1.2 allows a two to four level reduction in offense level for 

minimal and minor participants. The Sentencing Guidelines Manual

explains that a minimal participant “is intended to cover defendants 

who are plainly among the least culpable of those involved in the 

conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. The U.S.S.G. also 

explains that a minor participant means any participant who is “less 

																																																												 8 Relatedly, if Ward is challenging Mr. Hanley’s strategy as to the crossexamination of witnesses at sentencing, etc., such “[t]actical decisions . . . are left to the 

sound judgment of counsel and are entitled to a ‘strong presumption’ of competence.” 

Kearney, 2010 WL 2402887, at *2. And Ward has not presented this Court with “the 

factual basis that is required to show that [Mr. Hanley’s] tactics were manifestly 

unreasonable.” Id.

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culpable than most other participants . . . .” U.S.S.G. § 3B1.2, cmt. n.5.

Bellamy v. United States, Nos. 4:03–cr–00474–CWH–3; 4:10–cv–70210–CWH, 2013 

WL 4080709, at *4-5 (D.S.C. Aug. 13, 2013) (also noting, “an offense level reduction 

for a minimal or minor participant should be applied only when ‘a particular 

defendant is less culpable than other members of the group to such a degree 

that a distinction should be made at sentencing between him and the other 

participants’” (quoting United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990) 

(emphasis added)); accord United States v. Joseph, --- Fed. App’x ----, 2013 WL 

5303264, at *14 (11th Cir. Sept. 23, 2013) (“[A] defendant is not automatically 

entitled to a minor role reduction merely because he was ‘somewhat less culpable

than the other discernible participants.’” (quoting United States v. Bernal–Benitez, 

594 F.3d 1303, 1320-21 (11th Cir. 2010)) (emphasis added)); United States v. Neils, 

156 F.3d 382, 383 (2d Cir. 1998) (Departure under § 3B1.2 not warranted “solely 

upon a finding that [the defendant] is less culpable than the co-defendants” 

because § 3B1.2 requires the Court “to gauge the appellant’s culpability relative to 

the elements of the offense of conviction.” (emphasis added)); United States v. 

Partee, 31 F.3d 529, 534 (7th Cir. 1994) (“A reduction for a minor participant rests 

on whether the defendant was ‘substantially less culpable than the conspiracy’s

other participants.’” (quoting United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 

1993)) (emphasis added)); United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995)

(same).

Ward “bears the burden of proving [his] minor role by a preponderance of the 

evidence.” United States v. Setts, Nos. 5:03cr54/MCR; 5:05cv129/MCR/MD, 2006 

Case 1:09-cr-00121-CG-B Document 100 Filed 12/09/13 Page 21 of 32
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WL 5160612, at *5 (N.D. Fla. Feb. 22, 2006) (citing United States v. Boyd, 291 F.3d 

1274, 1277 (11th Cir. 2002)). And “[t]o prevail on an ineffective assistance of 

counsel claim for a mitigating role adjustment, courts have held whether the

defendant was prejudiced by counsel’s failure to request a § 3B1.2 adjustment 

depends on whether the district court would have granted the request, a matter 

only the district court can decide.” United States v. Castro, No. CR00–3020–MWB, 

2004 WL 1746092, at *15 (N.D. Iowa Aug. 4, 2004) (citations and internal quotation 

marks omitted)).

At sentencing, after counsel presented his “minimal role” argument, the 

Court found that Ward was “at least coequal in terms of responsibility and is not 

a minimal participant in this conspiracy.” (Doc. 80 at 46:4-7 (emphasis added).) 

This finding belies Ward’s position on collateral attack that, while the evidence 

admittedly does not support a minimal role reduction, it does support a minor role 

reduction. The Court neither found Ward to be “substantially less culpable,” “less 

culpable,” nor even “somewhat less culpable”; instead, the Court found he was “at 

least coequal[ly] culpable.” Cf. Bernal–Benitez, 594 F.3d at 1320-21; Neils, 156 F.3d 

at 383; DePriest, 6 F.3d at 1214; Brown, 54 F.3d at 241. Thus, because the evidence 

neither supports a minor nor a minimal role reduction, there can be no prejudice to 

Ward because his counsel urged the Court, unsuccessfully, for a four-level reduction 

instead of a two-level reduction. See, e.g., Bellamy, 2013 WL 4080709, at *4-5

(“Even assuming, arguendo, that counsel’s performance was deficient, the petitioner 

must also ‘show that there is a reasonable probability that, but for counsel’s

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23

unprofessional errors, the result of the proceeding would have been different.’ The 

petitioner bases his prejudice argument on his contention that if counsel had argued 

for a reduction in the petitioner’s offense level, he would have received it. However, 

the petitioner has not argued, and the record does not reflect . . . that the Court 

would have accepted the argument.” (quoting Strickland, 466 U.S. at 694)); United 

States v. Moreira, Criminal Action No. 06–20021–13–KHV, 2010 WL 1174306, at 

*5-6 (D. Kan. Mar. 23, 2010) (“Even if counsel was somehow deficient in how he 

raised the objection, defendant has not shown that if counsel had raised the 

objection in a different manner, the result of the sentencing proceeding would have 

been different.”); United States v. Barnes, 228 F. Supp. 2d 82, 87 (D. Conn. 2002) 

(“[E]ven if Barnes was, as he now claims, the low man on the totem pole, Barnes 

cannot show any prejudice arising from his counsel’s failure to make the § 3B1.2 

argument because the Court would not have had a basis for granting a minimal or 

minor role reduction [based on] the evidence at the sentencing hearing[.]”).

B. Sentencing Court Claim (Ground Four)

Ward’s final ground is aimed at the Court: “The court’s use of the multiplier 

method coupled with its dependence on McDonald’s contradictory testimony[] 

violated [Ward’s] Sixth Amendment Booker rights.” (Doc. 92-1 at 15.) This 

argument, made outside the prism of ineffective assistance of counsel, was not 

presented on direct appeal and, as such, generally cannot be made for the first time 

on collateral attack. See Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 

2004) (“Under the procedural default rule, a defendant generally must advance an 

Case 1:09-cr-00121-CG-B Document 100 Filed 12/09/13 Page 23 of 32
24

available challenge to a criminal conviction or sentence on direct appeal or else the 

defendant is barred from presenting that claim in a § 2255 proceeding.”) Although 

procedural default can be excused if a petitioner can show “cause for not raising the 

claim of error on direct appeal and actual prejudice from the alleged error[,]” Lynn, 

365 F.3d at 1234 (emphasis in original), Ward has failed to make such a showing in 

his petition.

“Ineffective assistance of counsel”—which Ward has attempted to show—

may, however, “constitute cause to excuse procedural default.” DiPietro v. United 

States, 251 Fed. App’x 606, 608 (11th Cir. Oct. 15, 2007) (per curiam) (citing Eagle 

v. Linahan, 279 F.3d 926, 937 (11th Cir. 2001)). That is, “[a] defendant may avoid 

the need to show cause and prejudice on a procedurally defaulted claim by raising a 

substantive issue of ineffective assistance of counsel for failure to assert the claim.” 

Id. (citing Eagle, 279 F.3d at 938); see, e.g., Beasley v. United States, Nos. CV610–

066; CR607–008, 2010 WL 4777535, at *1 (S.D. Ga. Oct. 28, 2010) (“It is well 

established that ‘constitutionally “[i]neffective assistance of counsel . . . is cause”’ 

for excusing a procedural default.” (quoting McCleskey v. Zant, 499 U.S. 467, 494 

(1991))), report & recommendation adopted, 2010 WL 4739525 (S.D. Ga. Nov. 16, 

2010).

However, merely asserting a substantive claim of ineffective assistance of 

counsel does not “establish[] cause to excuse [ ] procedural default”; “in order to 

constitute cause, ineffective assistance claims must have merit.” Reynolds v. 

United States, Nos. CV 109-061; CR 106-081, 2010 WL 1006257, at *4 (S.D. Ga. Jan. 

Case 1:09-cr-00121-CG-B Document 100 Filed 12/09/13 Page 24 of 32
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26, 2010) (citing United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)) 

(emphasis added), report & recommendation adopted, 2010 WL 1006253 (S.D. Ga. 

Mar 17, 2010). As explained above, Ward has failed to make a meritorious 

substantive claim for ineffective assistance of counsel and, accordingly, by not 

raising this argument on direct appeal, Ward has defaulted on this, his fourth, 

habeas ground. See, e.g., Womack v. United States, Civil Action No. 11–285–WS; 

Criminal No. 8–391–WS–C, 2012 WL 3206458, at *3 (S.D. Ala. June 6, 2012) 

(“[W]here, as here, a habeas motion presents both a substantive ineffectiveassistance-of-counsel claim and non-ineffective-assistance-of-counsel claims, to 

excuse procedural default and reach the merits of the non-ineffective-assistance-ofcounsel claims, the substantive ineffective-assistance-of-counsel claim must be 

meritorious.” (citing Brown v. Virginia, No. 1:10cv162 (JCC/IDD), 2011 WL 

1897432, at *3 (E.D. Va. May 18, 2011) (“[I]t is well established that a meritless 

ineffective assistance of counsel claim cannot excuse a procedural default.”) (citation 

omitted); Taylor v. Rivera, No. 07 Civ. 8668(PKC)(DF), 2011 WL 4471919, at *10 

(S.D.N.Y. Apr. 18, 2011) (“Petitioner’s ineffective assistance of counsel claim 

therefore lacks merit, and Petitioner cannot rely on it as a basis to excuse his 

procedural default[.]” (citations omitted)), report and recommendation adopted, 2011 

WL 4472146 (S.D.N.Y. Sept. 27, 2011))), report and recommendation adopted, 2012 

WL 3206675 (S.D. Ala. Aug. 8, 2012).

C. Ward’s Supplemental Brief

In his supplemental brief, dated June 24, 2013, Ward “submits that the 

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decision in Alleyne[ v. United States, --- U.S. ----, 133 S. Ct. 2151 (2013)] is 

applicable to his § 2255 claims concerning the judicial fact finding that [ ] 

determined the total quantity of pseudoephedrine attributed to him at sentencing.” 

(Doc. 98 at 2.)9

Alleyne, decided on direct appeal, addresses whether facts that increase 

the mandatory minimum for a crime must be submitted to the jury and proven 

beyond a reasonable doubt. So, even if Alleyne announced a new rule of law, see 

Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013), that rule is not 

applicable to Ward’s habeas petition because, quite simply, “a new rule is not ‘made 

retroactive to cases on collateral review’ unless the Supreme Court holds it to be 

retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001). The Supreme Court has not—

or at least has not yet—done so. See United States v. Redd, 735 F.3d 88, 91 (2d Cir. 

2013) (per curiam) (explaining how a new rule could be made retroactive).10

																																																												 9 Ward’s untimely supplemental brief concerns an issue he raised in his timely 

petition—asserted error based on how the Guidelines were calculated—therefore, 

construing the late-filed amendment liberally, the supplemental brief is timely pursuant to 

the “relation back” principles in Fed. R. Civ. P. 15, as explained in Davenport v. United 

States, 217 F.3d 1341 (11th Cir. 2000) and its progeny, and in Mayle v. Felix, 545 U.S. 644 

(2005)), under which an amendment to a § 2255 petition is not time-barred if the “claims 

filed or added [in the amendment] ‘relate back’ to timely-filed claims.” United States v. 

Sanders, Civil Action No. 04-0042-CB; Criminal No. 98-00056-CB, 2007 WL 4285398, at *5 

(S.D. Ala. Dec. 4, 2007) (citing Davenport); see also United States v. Hames, 431 Fed. App’x 

846, 847 (11th Cir. June 22, 2011) (per curiam) (“Rule 15 can be used in cases where a 

defendant files a timely § 2255 motion and then later files an amendment or additional 

motion that relates back to the original § 2255, but would otherwise be untimely.” 

(emphasis added)).

10 Although it does not appear that the Eleventh Circuit has so held, the 

appellate courts to address the issue all agree that Alleyne does not apply to cases on 

collateral review. See Redd, 735 F.3d at 91-82 (citing In re Payne, 733 F.3d 1027 (10th Cir. 

2013); Simpson, 721 F.3d at 876; United States v. Stewart, --- Fed. App’x ----, 2013 WL 

5397401 (4th Cir. Sept. 27, 2013)). Further, it appears that the district courts in this circuit 

Case 1:09-cr-00121-CG-B Document 100 Filed 12/09/13 Page 26 of 32
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D. Evidentiary Hearing

This Court “‘shall’ hold an evidentiary hearing on a habeas petition ‘[u]nless 

the motion and the files and records of the case conclusively show that the prisoner 

is entitled to no relief.’” Scott v. United States, 325 Fed. App’x 822, 824 (11th Cir. 

Apr. 29, 2009) (per curiam) (quoting 28 U.S.C. § 2255(b)). 

“[I]f the petitioner ‘alleges facts that, if true, would entitle him to 

relief, then the district court should order an evidentiary hearing and 

rule on the merits of his claim.’” Aron [v. United States], 291 F.3d 

[708,] 714-15 (quoting Holmes v. United States, 876 F.2d 1545, 1552 

(11th Cir. 1989)). Yet the “district 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.” Id. at 

715. Thus, the petitioner needs to allege “reasonably specific, nonconclusory facts that, if true, would entitle him to relief. If the 

allegations are not affirmatively contradicted by the record and the 

claims are not patently frivolous,” the requirement of an evidentiary 

hearing is triggered and the petitioner must offer proof at that hearing. 

Id. at 715 n.6.

																																																																																																																																																																																																			

that have addressed the issue, including this one, also all agree that Alleyne does not apply 

to cases on collateral review. See, e.g., Pettaway v. United States, Civil Action No. 13–0546–

WS–C; Criminal Action No. 07–0182–WS, 2013 WL 6385822, at *4 (S.D. Ala. Dec. 6, 2013) 

(“The undersigned recommends that this Court decline to chart the path outlined by 

Pettaway and declare Alleyne retroactively applicable to cases on collateral review. The 

undersigned makes this recommendation because the Supreme Court in Alleyne, a direct 

review case, gave no indication that its new rule applies retroactively on collateral 

review[.]” (citations omitted) (Chief Judge Steele, adopting recommendation of Magistrate 

Judge Cassady)); accord Townes v. United States, Civil Action No. 13–0403–CG–M; 

Criminal No. 07–00039–CG–M, 2013 WL 5934011, at *2-3 (S.D. Ala. Nov. 1, 2013) (Judge 

Granade, adopting recommendation of Magistrate Judge Milling); see also, e.g., Rhodes v. 

United States, Nos. CV 113–158, CR 111–097, 2013 WL 5797641, at *2 (S.D. Ga. Oct. 28, 

2013); Richards v. United States, Criminal Action No. 1:07–CR–0412–18–CAP; Civil Action 

No. 1:13–CV–2376–CAP, 2013 WL 5636678, at *1 (N.D. Ga. Oct. 15, 2013); United States v. 

Swatzie, Nos. 4:99cr62–RH; 4:13cv476–RH/CAS, 2013 WL 5566488, at *1 (N.D. Fla. Oct. 7, 

2013) (noting, “it is virtually certain that the Eleventh Circuit ultimately will hold that 

Alleyne is not retroactively applicable to cases on collateral review” (citing McCoy v. United 

States, 266 F.3d 1245, 1256–58 (11th Cir. 2001) (which held that Apprendi—the holding of 

which was extended by the holding in Alleyne—was not retroactively applicable to cases on 

collateral review))); Dilbert v. United States, No. 8:13–CV–2189–T–30MAP; Crim. Case No. 

8:11–CR–631–T–30MAP, 2013 WL 5408444, at *3 (M.D. Fla. Sept. 25, 2013).

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Id.; accord Lopez v. United States, 522 Fed. App’x 684 (11th Cir. June 26, 2013) (per 

curiam) (in which the Eleventh Circuit recently vacated an order denying habeas 

relief—on the ground that counsel violated a defendant’s constitutional right to 

testify—and remanded the case for an evidentiary hearing); see also Williams v. 

United States, Civil No. 08-00513-CG-N; Crim. No. 04-00197-CG, 2010 WL 1382762, 

at *5 (S.D. Ala. Mar. 3, 2010) (setting forth two additional grounds for not 

conducting an evidentiary hearing: (1) where the petitioner’s version of the facts has 

already been accepted as true (citing Turner v. Crosby, 339 F.3d 1247, 1274-75 (11th 

Cir. 2003)); and (2) where the “the district court can determine the merits of the 

ineffectiveness claim based on the existing record” (quoting Schultz v. Wainwright, 

701 F.2d 900, 901 (11th Cir. 1983))), report and recommendation adopted, 2010 WL 

1382761 (S.D. Ala. Apr. 1, 2010).

There simply is no need for an evidentiary hearing. On the existing record, 

Ward has not presented non-conclusory facts that, if true, would entitle him to 

relief.

III. 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. 

18 U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate 

of appealability when it enters a final order adverse to the applicant.”). The habeas 

corpus statute makes clear that an applicant is entitled to appeal a district court’s 

denial of his habeas corpus petition only where a circuit justice or judge issues a 

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

Case 1:09-cr-00121-CG-B Document 100 Filed 12/09/13 Page 28 of 32
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may only issue where “the applicant has made a substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2243(c)(2).

Ward is not entitled to a certificate of appealability on his three ineffectiveassistance-of-counsel claims. Where, as is the case for Ward’s IAC claims here, a 

habeas petition is being denied entirely on the merits of an underlying 

constitutional claim, a COA should issue only when a petitioner demonstrates “that 

reasonable jurists would find the district court’s assessment of the constitutional 

claims debatable or wrong[.]” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 

id. at 483-84 (“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 & n.4 (1983), includes a showing that 

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

should have been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further.”) (quotation modified). With 

respect to Ward’s ineffective-assistance-of-counsel claims, the undersigned 

recommends that the Court find that reasonable jurists could not debate whether 

his § 2255 motion to vacate should be resolved in a different manner or that any of 

the remaining issues presented is adequate to deserve encouragement to proceed 

further. Accordingly, Ward is not entitled to a certificate of appealability as to these 

claims.

Similarly, because his non-ineffective-assistance-of-counsel claim (Ground 

Four) is procedurally barred, Ward is not entitled to a certificate of appealability on 

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that claim. Where, as is the case for this claim, a habeas petition is being denied on 

procedural grounds without reaching the merits of the underlying constitutional 

claims, “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, 529 U.S. at 

484; see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the controlling 

standard, a petitioner must show that reasonable jurists could debate whether (or, 

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

manner or that the issues presented were adequate to deserve encouragement to 

proceed further.” (internal quotation marks omitted)). Inasmuch as unexcused 

procedurally defaulted claims are barred from a § 2255 proceeding, see Lynn, 365 

F.3d at 1234, a reasonable jurist could not conclude either that this Court is in error 

in dismissing those claims in the instant petition or that Ward should be allowed to 

proceed further on those claims. See Slack, 529 U.S. at 484 (“Where a plain 

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

the case, a reasonable jurist could not conclude either that the district court erred in 

dismissing the petition or that [Ward] should be allowed to proceed further.”).

Rule 11(a) further provides: “Before entering the final order, the court may 

direct the parties to submit arguments on whether a certificate should issue.” If 

there is an objection to this recommendation, the objecting party may bring this 

argument to the attention of the district judge in the objections permitted to this 

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report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WSC, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation 

adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011)11; Griffin v. DeRosa, No. 

3:10cv342/RV/MD, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for 

same procedure), report & recommendation adopted sub nom. Griffin v. 

Butterworth, 2010 W: 3943699 (N.D. Oct. 5, 2010).

IV. Conclusion

Because the Magistrate Judge is of the opinion that (1) as to the ineffectiveassistance-of-counsel claims (Grounds One, Two, and Three), Ward has not shown 

that his rights were violated; and (2) his claim against the Court (Ground Four) has 

been procedurally defaulted, it is RECOMMENDED that the habeas petition (Doc. 

92, as amended by Doc. 98) be DENIED and that the Court find that Ward is not 

entitled to a certificate of appealability and is therefore not entitled to appeal in 

forma pauperis.

V. 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 

																																																												 11 It should be noted that in that proceeding, the Eleventh Circuit (Judge Hull) 

also denied the petitioner’s motion for certificate of appealability, on October 11, 2011. (See

Doc. 14 in CA-11-0165-WS-C.)

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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 the 9th day of December, 2013.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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