IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JUAN MARK JONES, : 

#10579-003, :

Petitioner, : 

 : CRIMINAL NO. 09-00017-KD-B

vs. : CIVIL ACTION NO. 14-00008-KD-B

 :

UNITED STATES OF AMERICA, :

 :

Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Juan Mark Jones’ Motion to 

Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 

(Doc. 105), and the Government’s Response in Opposition. (Doc. 

108). This action was referred to the undersigned Magistrate 

Judge for report and recommendation pursuant to 28 U.S.C. 

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

Cases and is now ready for consideration. 1 Having carefully 

reviewed the record, the undersigned finds that no evidentiary 

hearing is necessary for the disposition of this matter.2

 1 The Honorable United States District Judge Kristi K. DuBose 

presided over the guilty plea hearing and sentencing in this 

action. The undersigned has reviewed Petitioner’s motion and all 

other relevant documents in the Court’s file and has fully 

familiarized herself with the proceedings before Judge DuBose. 

2 A district court is not required to hold an evidentiary hearing 

every time a § 2255 petitioner simply asserts a claim of 

ineffective assistance of counsel. Holmes v. United States, 876 

F.2d 1545, 1553 (11th Cir. 1989) (“A hearing is not required on 

patently frivolous claims or those which are based upon 

unsupported generalizations. Nor is a hearing required when the 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 1 of 21 PageID #:

<pageID>
2

Upon consideration, the undersigned hereby recommends that 

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

under 28 U.S.C. § 2255 be DENIED, that this action be DISMISSED, 

and that judgment be entered in favor of Respondent, the United 

States of America, and against Petitioner, Juan Mark Jones. The 

undersigned also recommends that should Jones file a certificate 

of appealability, it should be denied as he is not entitled to 

appeal in forma pauperis.

I. PROCEDURAL BACKGROUND

On January 29, 2009, Juan Mark Jones was indicted on the 

following charges: (1) conspiracy to manufacture 

methamphetamine; (2) conspiracy to possess pseudoephedrine; (3) 

possession of pseudoephedrine; (4) using and carrying a firearm 

during and in relation to drug trafficking; (5) possession of 

pseudoephedrine; (6) manufacturing methamphetamine; (7) 

conspiracy to possess pseudoephedrine; (8) manufacturing 

methamphetamine; and (9) using and carrying a firearm during 

and in relation to drug trafficking.3 (Doc. 1). Attorney Cindy

Powell was appointed to represent Jones on February 11, 2009 and 

on March 19, 2009, Jones entered into a counseled and negotiated

 

petitioner’s allegations are affirmatively contradicted by the 

record.”) (citation omitted).

3 Count ten detailed the forfeiture count against Jones.(Doc. 1). 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 2 of 21 PageID #:

<pageID>
3

plea agreement.4 (Docs. 15, 18). In the plea agreement, Jones 

agreed that he would plead guilty to count one (drug 

conspiracy), which carried a maximum penalty of 10 years to life 

imprisonment, count four (possession of firearm during and in 

relation to drug trafficking), which carried a mandatory 

consecutive five year term of imprisonment, and count nine 

(possession of firearm during and in relation to drug 

trafficking), which carried a mandatory consecutive 25 year term 

of imprisonment. (Docs. 18, 19) 

Jones also agreed to waive his right to appeal or 

collaterally attack his sentence in “any collateral attack, 

including but not limited to, a motion brought under 28 U.S.C. § 

2255” unless the sentence imposed a punishment in excess of the 

statutory maximum or the sentence constituted an upward 

departure from the guideline range. (Doc. 18 at 10-11). Jones 

also reserved his right to file claims based on ineffective 

assistance of counsel. (Id.). In return, the Government agreed 

that it would not bring any additional charges related to the 

facts underlying the Indictment against Jones and that it would 

move to dismiss the remaining counts at sentencing. (Doc. 18 at 

5-8). The Government also agreed that if, in its sole 

discretion, Jones provided substantial assistance in the 

 4 Attached to the plea agreement was a factual resume that 

outlined the elements of the offenses and the facts supporting 

Jones’ plea to the offenses. (Doc. 18 at 13-28).

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 3 of 21 PageID #:

<pageID>
4

investigation or prosecution of another criminal defense, the 

Government would move for a downward departure in accordance 

with U.S.S.G. § 5K1.1 or would file a Rule 35 motion pursuant to 

the Federal Rules of Criminal Procedure. (Id.). The Government 

further agreed that if Jones’ cooperation did not amount to 

substantial assistance, as determined by the Government, the 

Government would recommend that Jones be sentenced at the low 

end of the sentencing guidelines range. (Id.)

On March 19, 2009, Jones pled guilty before United States 

District Judge Kristi Dubose. (Doc. 19). During the guilty plea 

hearing, Jones was placed under oath and Judge DuBose questioned 

him regarding the voluntariness of his plea. Jones testified as 

follows: 

THE COURT: All right. Mr. Jones, I need to ask you 

some questions to determine whether you are competent 

to plea and whether this is a voluntarily plea [sic]. 

. . . 

THE COURT: Had any problem communicating with your 

attorney?

DEFENDANT JONES: No ma’am.

THE COURT: Are you fully satisfied with her 

advise[sic] and representation in this case? 

DEFENDANT JONES: Yes, ma’am.

THE COURT: Did she go over the charge and explain it 

to you?

DEFENDANT JONES: Yes ma’am. 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 4 of 21 PageID #:

<pageID>
5

. . . 

THE COURT: Okay. You are pleading guilty pursuant to a 

plea agreement. Did any — did you read that plea 

agreement before you signed it? 

DEFENDANT JONES: Yes ma’am. 

THE COURT: Did you go over it with your attorney?

DEFENDANT JONES: Yes, ma’am. 

THE COURT: Has anybody promised you [] anything that 

is not included in that written plea agreement. 

DEFENDANT JONES: No, ma’am. 

THE COURT: Now, the maximum penalties in your case, 

include Count One, is ten years to life. That’s a 

mandatory minimum of ten years, four million dollar

fine, five years supervised release and hundred 

dollars special assessment. You understand that?

DEFENDANT JONES: Yes ma’am.

THE COURT: All right. In addition to that, count four 

carries a penalty of an additional five years penalty, 

mandatory consecutive to that ten years. You 

understand that?

DEFENDANT JONES: Yes ma’am. 

THE COURT: And Count Nine carries an additional 25 

years penalty, do you understand that?

DEFENDANT JONES: Yes ma’am. 

THE COURT: In addition and consecutive to the ten, 

five, and the twenty-five.

DEFENDANT JONES: Yes ma’am. 

THE COURT: You understand that?

DEFENDANT JONES: Yes ma’am. 

THE COURT: So what we are talking about here is if 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 5 of 21 PageID #:

<pageID>
6

there is not substantial cooperation, when you walk in 

here I have no authority except to give you forty 

years. 

DEFENDANT JONES: Yes, ma’am.

THE COURT: And the only way around that is if the 

government, and government means the prosecutor comes 

in and files a motion saying he has substantially 

assisted the court, excuse me, the government, the 

prosecution?

DEFENDANT JONES: Right. 

(Doc. 94). The Court accepted Jones’ guilty plea and found that 

he was fully competent and capable of entering an informed plea 

and that his plea of guilty was knowing and voluntary. (Id. at 

10). Jones’ sentencing was set for June 18, 2009. (Id. at 11). 

At the request of the parties, Jones’ sentencing hearing 

was postponed several times. (Docs. 22, 25, 33, 38, 42, 45, 53, 

66, 70). In December 2010, Cindy Powell requested and was 

granted permission to withdraw as Jones’ attorney because 

subsequent to Jones’ guilty plea in March 2009, Powell, in 

September 2009, began representing an individual whom Jones

later implicated during a debriefing session. (Doc. 46). Upon 

learning of the conflict, Powell sought permission to withdraw 

in December 2010.(Id.) Jones’ substitute counsel filed a motion 

to withdraw Jones’ guilty plea on the ground that the Government 

had breached the plea agreement and acted in bad faith by not 

filing a motion for a sentence reduction pursuant to Sentencing 

Guideline Rule 5k1.1. (Doc. 57). Following a hearing on June 24, 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 6 of 21 PageID #:

<pageID>
7

2011, the motion was denied. (Doc. 64). Jones’ substitute 

counsel filed a second motion requesting specific performance 

and again argued that the Government had acted in bad faith by 

not filing a motion for a sentence reduction based on Jones’ 

substantial assistance. (Doc. 79).

Jones’ sentencing hearing was conducted on August 12, 2011, 

and after hearing from the parties, the Court denied Jones’ 

motion for specific performance. (Doc. 79). According to the 

Court, Jones failed to carry his burden of establishing that the 

Government acted with an unconstitutional motive. (Doc. 96). 

The Court found that the Government presented a rational reason 

for its decision not to file a request for a sentence reduction 

pursuant to Sent. Guideline Rule 5K1.1. (Id.). 

The Court sentenced Jones to a total sentence of 480 

months, which consisted of a consecutive prison sentence of 120 

months on count one, a consecutive prison sentence of 60 months 

on count 4, and a consecutive prison sentence of 300 months on 

count 9. (Docs. 79, 96). Notwithstanding the fact that the 

recommended guideline range was 570 months, the Court found that 

the mandatory minimums adequately satisfied the goals set fourth 

in 18 U.S.C. § 3553(a). (Doc. 96).

Jones appealed his conviction and sentence and argued that:

(1) the district court erred in denying his motions to withdraw 

his guilty plea and for specific performance, (2) the factual 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 7 of 21 PageID #:

<pageID>
8

basis supporting one of his firearm offenses was insufficient

and (3) his counsel provided ineffective assistance. (Doc. 101).

The Eleventh Circuit rejected Jones’ first two claims, and 

declined to reach his ineffective assistance of counsel claims. 

The Court observed that ineffective assistance claims are 

properly raised in a collateral attack under 28 U.S.C. § 2255 as 

opposed to a direct appeal. The Court affirmed Jones’

convictions and total sentence on July 9, 2012. His petition 

for rehearing was denied on September 12, 2012. (Docs. 101,

102). 

Jones filed the instant Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 on December 22, 2013. 5

(Doc. 105). In his petition, Jones raises the following claims: 

(1) his attorney improperly advised him that he would get a 

lower sentence by pleading guilty and as a result, his guilty

plea was involuntary; (2) his attorney was ineffective because 

she did not file a motion to suppress evidence; (3) his attorney

did not attend several debriefings, and as a result, she was 

ineffective because she had a conflict of interest during her 

representation of him; and (4) the Government breached their 

 5 Although the instant petition was received by the Clerk’s 

Office on January 10, 2014, pursuant to the mailbox rule, a 

prisoner’s petition is deemed filed on the date it is delivered 

to prison officials for mailing, absent contrary evidence. 

Washington v. United States, 243 F.3d 1299, 1301 (llth Cir. 

2001). 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 8 of 21 PageID #:

<pageID>
9

plea agreement because they did not file for a downward 

departure of his sentence based on his substantial assistance.

(Doc. 105).

In its response in opposition to Jones’ petition, the 

Government argues that Jones’ petition is due to be denied

because his claims are frivolous and without merit. 

Specifically, the Government argues that Jones cannot show that 

his attorney’s performance was deficient, nor that he suffered 

any prejudice because of the alleged deficient performance. 

Thus, he cannot meet the standard required by Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

II. DISCUSSION

A. Habeas Standard

The limited scope of habeas relief is well established, as 

this Court has recognized: 

Collateral relief is an extraordinary remedy 

which "may not do service for a[ ] [direct] appeal." 

United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 

1584, 71 L. Ed. 2d 816 (1982); see also Lynn v. United 

States, 365 F.3d 1225, 1232 (11th Cir. 2004) ("Courts 

have long and consistently affirmed that a collateral 

challenge, such as a § 2255 motion, may not be a 

surrogate for a direct appeal."). A defendant who has 

waived or exhausted his right to appeal is presumed to 

stand "fairly and finally convicted." Frady, 456 U.S. 

at 164. Unless a claim alleges a lack of jurisdiction 

or constitutional error, the scope of collateral 

attack has remained extremely limited. United 

States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 

2235, 60 L. Ed. 2d 805 (1979). Consequently, "[i]f 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 9 of 21 PageID #:

<pageID>
10

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).

United States v. Evans, 2008 U.S. Dist. LEXIS 59836, *8-9 (S.D. 

Ala. August 4, 2008) (quotation marks in original). 

B. Ineffective Assistance of Counsel

Jones’ first three claims involve the alleged ineffective 

assistance of his trial counsel. As noted supra, Jones contends 

that his initial attorney, Cindy Powell, was ineffective for the 

following reasons: (1) his attorney improperly advised him that 

he would get a lower sentence by pleading guilty and as a 

result, his guilty plea was involuntary; (2) his attorney was 

ineffective because she did not file a motion to suppress 

evidence; and (3) his attorney did not attend several 

debriefings, and as a result, she was ineffective because she 

had a conflict of interest during her representation of him. 

“Ineffective assistance of counsel claims are governed by the 

standard set forth by the Supreme Court in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).” Green v. Nelson, 595 F.3d 1245, 1249 (11th Cir. 2010). 

“An ineffective assistance claim has two components: A 

petitioner must show that counsel’s performance was deficient, 

and that the deficiency prejudiced the defense.” Wiggins v. 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 10 of 21 PageID #:

<pageID>
11

Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 

(2003) (citing Strickland, 466 U.S. at 687). To establish 

deficiency, a petitioner must show that "counsel's 

representation 'fell below an objective standard of 

reasonableness.'" Wiggins, 539 U.S. at 521 (quoting Strickland, 

466 U.S. at 688).

The two part Strickland standard applies to challenges to 

the validity of guilty pleas based on claims of ineffective 

assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 58, 

106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Because the failure to 

demonstrate either deficient performance or prejudice is 

dispositive of the claim, courts applying the Strickland test 

“are free to dispose of ineffectiveness claims on either of 

[Strickland’s] two grounds.” Oats v. Singletary, 141 F.3d 1018, 

1023, 1998 U.S. App. LEXIS 10123, 11 Fla. L. Weekly Fed. C 1360 

(11th Cir. 1998). “[U]nder the exacting rules and presumptions 

set forth in Strickland, ‘the cases in which habeas petitioners 

can properly prevail on the ground of ineffective assistance of 

counsel are few and far between.’” Windom, 578 F.3d at 1248 

(citations omitted). Based upon a careful review of Jones’ 

petition and the record evidence, the undersigned finds that 

Jones has failed to demonstrate that his counsel provided 

ineffective representation. 

In his first claim, Jones argues that his attorney was 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 11 of 21 PageID #:

<pageID>
12

ineffective because she improperly advised him that his sentence 

would be lower than the minimum mandatory 480 months if he pled 

guilty. To support this claim Jones states, “[w]hen I received 

my P.S.I. and it said 480 month minimum mandatory I was not 

happy. She said that the D.A. refused to drop count 9, but for 

me not to worry that it wouldn’t be that much at sentencing. I 

believed her but I shouldn’t have.” (Doc. 105 at 4). To 

demonstrate ineffective assistance of counsel, Jones must show 

that his attorney’s performance was deficient and that his case 

was prejudiced as a result. Assuming arguendo, that Jones could 

show that his attorney’s performance was deficient in advising 

him to plead guilty, he is unable to demonstrate that he 

suffered prejudice because of it. When a petitioner’s 

conviction is based on a guilty plea, in order to show 

prejudice, he must show that there is a reasonable probability 

that, but for counsel’s mistakes, he would not have pleaded 

guilty and would have insisted on going to trial. Hill, 474 U.S. 

at 59; Esslinger v. Davis, 44 F.3d 1515, 1529 (11th Cir. 1995). 

In his habeas petition, Jones acknowledges that before he pled 

guilty, he received the Presentence Investigation Report that 

stated he could potentially serve a mandatory minimum of 480 

months. (Doc. 105 at 4). Also, in the factual resume attached 

to his written plea agreement, and at the guilty plea hearing, 

Jones acknowledged that the Government could prove the 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 12 of 21 PageID #:

<pageID>
13

underlying facts in the factual resume against him. (Docs. 18, 

94).

At the guilty plea hearing, Jones acknowledged that he was 

fully satisfied with his attorney’s representation and that he 

read the plea agreement before he signed it. He also stated 

that no one had promised him anything that was not included in 

his written plea agreement. (Doc. 94 at 3-4). In addition, 

Judge DuBose explicitly explained to Jones the possible 

penalties he faced if convicted, and made clear that if there 

was not substantial cooperation, then she would have no 

authority except to give him 40 years, and that it would be up 

to the Government to file something saying that he provided 

substantial assistance. (Doc. 94). Judge DuBose noted that “[a]

lot of times defendants don’t understand this and they will 

write me letters and tell me all of these things about 

themselves and their family . . . without that substantial 

assistance motion I do not have discretion to go outside the 

minimum mandatory in this case.” (Id. at 5). Jones acknowledged 

that he understood the penalties that could potentially be 

imposed and that without a substantial assistance motion, the 

court did not have discretion to go outside of the minimum 

mandatory sentence. (Id. at 5-6). This record evidence clearly 

shows that Jones was fully aware of the potential sentence he 

faced, and that he entered into his plea of his own volition. 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 13 of 21 PageID #:

<pageID>
14

Thus, the undersigned finds that his guilty plea was knowing, 

intelligent, and voluntary. See Langford v. U.S., 2009 U.S. 

Dist. LEXIS 127453, *25 (S.D. ALA. Oct 22, 2009) (unpublished) 

(“Mere disappointment that a court imposed a harsher sentence 

tha[n] what one hoped for is not the proper basis for a motion 

to vacate.”). The undersigned likewise finds that Jones’ 

contention that his counsel was ineffective for improperly 

advising him to plead guilty is without merit. For this reason, 

Jones is not entitled to relief on this claim. 

Jones’ second claim of ineffective assistance is that his 

attorney failed to file a motion to suppress evidence. (Doc. 105 

at 5). Aside from the vague and conclusory assertion that, 

“[s]he never did anything positive to help my case,” Jones has 

failed to offer any facts to support this claim. (Id.). He has 

not given any details or specific information regarding which 

evidence should have been suppressed and why his attorney was 

ineffective for failing to file a motion to suppress such

evidence. See Randolph v. McNeil, 590 F.3d 1273, 1276 n.1 (11th 

Cir. 2009) (holding that “conclusory assertions” will not 

support a claim of ineffective assistance of counsel); Wilson v. 

United States, 962 F.2d 996, 998 (11th Cir. 1992) (same); Tejada 

v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (addressing the 

issue in the context of 28 U.S.C. § 2254); Story v. United 

States, 2012 U.S. Dist. LEXIS 26031, 2012 WL 671677, at *4 (S.D. 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 14 of 21 PageID #:

<pageID>
15

Ala. Jan. 31, 2012) (rejecting § 2255 claim of ineffective 

assistance where movant had not indicated what a more thorough 

investigation by his attorney would have revealed or how any 

supposed discovery would have been fruitful in his case). Thus, 

Jones is not entitled to relief on this claim. 

In his third argument, Jones asserts that his counsel was 

ineffective because she did not attend several of his

debriefings with the Mobile County Sheriff’s Office, and that 

this “ led to her representing someone that was a part of my 

case which therefore put her in conflict of interest and 

resulted in her[] no longer being able to represent me.” (Doc.

105 at 7). Where an ineffective assistance claim alleges a 

conflict, “a defendant must show first, that his attorney had an 

actual conflict of interest, and second, that the conflict 

adversely affected counsel’s performance.” Pegg v. United 

States, 253 F.3d 1274, 1277 (11th Cir. 2001); see also, Mickens 

v. Taylor, 535 U.S. 162, 172 n.5 (2002). To prove that he was 

adversely affected, a habeas petitioner must show three 

elements: “(1) the existence of a plausible alternative defense 

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

alternative defense strategy or tactic was reasonable under the 

facts; and (3) a link between the actual conflict and the 

decision to forgo the alternative strategy of defense” in order 

to prove adverse effect.” Pegg, at 1278. 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 15 of 21 PageID #:

<pageID>
16

In this case, Jones seems to assert that but for his 

attorney’s conflict, he would not have pleaded guilty and would 

have proceeded to trial. However, the record reflects that 

Jones elected to enter a guilty plea long before any conflict 

arose. Indeed, the record reflects that Jones pled guilty on 

March 19, 2009, that Attorney Powell assumed representation of 

another individual in September 2009, and that in later 

debriefings, Jones sought to provide information against her 

other client. Given that Jones had already pled guilty before

Attorney Powell assumed representation of the other individual, 

and before Jones implicated the individual during a debriefing 

session, he cannot establish that the conflict had any bearing 

on his decision to enter a guilty plea, or that his attorney was 

in any way ineffective in dealing with a conflict that did not 

exist at the time of his guilty plea. Accordingly, Jones is not 

entitled to relief on any of his ineffective assistance of 

counsel claims. 

In Jones’ final argument, he contends that the Government 

breached his plea agreement by “refus[ing] to file the motion of 

downward departure that was part of [his] plea.” (Doc. 105 at

8). This claim is procedurally barred because it has already 

been addressed and denied by the Eleventh Circuit. (Doc. 101). 

“Once a matter has been decided adversely to a defendant on 

direct appeal it cannot be re-litigated in a collateral attack 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 16 of 21 PageID #:

<pageID>
17

under section 2255. (quotations and citation omitted). United 

States v. Nyhuis, 211 F.3d 1340, 1343, 2000 U.S. App. LEXIS 

10886, 6, 13 Fla. L. Weekly Fed. C 662 (11th Cir. 2000). See

also Rozier v. United States, 701 F.3d 681, 684, 2012 U.S. App. 

LEXIS 24129, 8, 23 Fla. L. Weekly Fed. C 1685 (11th Cir. 2012) 

(“At least where there has been no intervening change in 

controlling law, a claim or issue that was decided against a 

defendant on direct appeal may not be the basis for relief in a 

§ 2255 proceeding.”). In Jones’s direct appeal, the Court held:

[i]nsofar as Jones sought relief based on a perceived 

breach of his plea agreement, no such “breach” 

occurred . . . [i]rrespective of Jones’ subjective 

intent at the time he signed the plea agreement, given 

the agreement’s written terms—as well as his denial at 

his plea hearing that he was promised anything outside 

of the written plea agreement—he failed to demonstrate 

that when he was induced, as a matter of law, to plead 

guilty by a promise that he would receive a 

substantial-assistance reduction.

Jones’ breach of claim is procedurally barred. Thus, he is not 

entitled to relief on this claim. 

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. 28 U.S.C. § 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 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 17 of 21 PageID #:

<pageID>
18

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

habeas corpus petition only where a circuit justice or judge 

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

A certificate of appealability may be issued only where “the 

applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). 

Where a habeas petition is being denied, in part, on 

procedural grounds without reaching the merits of an underlying 

constitutional claim, “a COA should be issued [only] when the 

prisoner shows . . . that jurists of reason would find it 

debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct 

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 

120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Where a habeas 

petition is being denied on the merits of an underlying 

constitutional claim, a certificate of appealability should be 

issued only when the petitioner demonstrates “that reasonable 

jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Id. (“To obtain a COA 

under § 2253(c), a habeas prisoner must make a substantial 

showing of the denial of a constitutional right, a demonstration 

that, under Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 

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

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 18 of 21 PageID #:

<pageID>
19

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

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

Jones’ claims do not warrant the issuance of a Certificate 

of Appealability. Reasonable jurists could not debate whether 

Jones’ claims alleging ineffective assistance of counsel and 

breach of plea agreement should be resolved in a different 

manner or deserves to proceed further. The recommendation that 

Jones’ claims be denied is based on the straightforward 

application of clear Circuit precedent, and no reasonable jurist 

could differ on the appropriate disposition of his claim on the 

record presented. It is thus recommended that the Court deny 

any request for a Certificate of Appealability.

IV. CONCLUSION

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

§ 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. 

105) be DENIED, that this action be dismissed, and that judgment 

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

and against Petitioner, Juan Mark Jones. The undersigned 

Magistrate Judge further opines that Jones is not entitled to 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 19 of 21 PageID #:

<pageID>
20

issuance of a Certificate of Appealability. 

The attached sheet contains important information regarding 

objections to this Report and Recommendation.

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 GenLR 72(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge’s findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives

the right to challenge on appeal the district court’s order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th Cir. 

R. 3-1. In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the 

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 20 of 21 PageID #:

<pageID>
21

Magistrate Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by 

reference or refers to the briefing done by the Magistrate Judge 

is not specific. 

DONE this 1st day of March, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cr-00017-KD-B Document 111 Filed 03/02/16 Page 21 of 21 PageID #:

<pageID>