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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NATHAN CURTIS, :

 Petitioner, : 

 CIVIL ACTION 14-0379-CG-M

v. :

 CRIMINAL ACTION 12-00287-CG-M

UNITED STATES OF AMERICA, :

 Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate, 

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 29). 

This action was referred to the undersigned Magistrate Judge for 

report and recommendation pursuant to 28 U.S.C. § 636(b) and 

Rule 8(b) of the Rules Governing Section 2255 Cases. It is now 

ready for consideration. The record is adequate to dispose of 

this matter; no evidentiary hearing is required. It is 

recommended that Petitioner’s Motion to Vacate (Doc. 29) be 

denied, that this action be dismissed, and that judgment be 

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

and against Petitioner, Nathan Curtis. It is further 

recommended that any certificate of appealability filed by 

Petitioner be denied as he is not entitled to appeal in forma 

pauperis.

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Curtis was indicted on November 28, 2012 for being a 

convicted felon in possession of a firearm in violation of 18 

U.S.C. § 922(g)(1) (Doc. 1). On May 23, 2013, Petitioner pled 

guilty to the charge against him (see Doc. 19). On August 28, 

2013, United States District Judge Granade sentenced Petitioner 

to eighty-seven months in prison on the conviction, as well as 

three years of supervised release following his release from 

prison, and an assessment of one hundred dollars (see Doc. 27). 

Curtis did not appeal his conviction (Doc. 29, p. 2).

Petitioner filed his Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 on August 4, 2014 in 

which he raised the following claims: (1) His sentence was 

improperly enhanced; and (2) his Attorney rendered ineffective 

assistance (Doc. 29). Respondent filed a response on October 

10, 2014 (Doc. 32). Though given the opportunity to file a 

reply, Petitioner has not done so (see Doc. 31).

Curtis’s first claim is that his sentence was improperly 

enhanced with a four-point adjustment for committing an 

aggravated assault. Specifically, Petitioner argues that 

because he does not have a conviction for aggravated assault, 

the enhancement was improper (Doc. 29, p. 5).

The Court first notes that this claim is not constitutional

and, therefore, not cognizable in this action because it was not 

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raised on appeal. Stone v. Powell, 428 U.S. 465, 477 n.10 

(1976) (“The writ of habeas corpus and its federal counterpart, 

28 U.S.C. § 2255, ‘will not be allowed to do service for an 

appeal.’ For this reason, nonconstitutional claims that could 

have been raised on appeal, but were not, may not be asserted in 

collateral proceedings”) (citations omitted). Curtis has 

provided no explanation as to why this claim was not raised on 

appeal or how Stone is inapplicable in light of that failure. 

The Court would further note that the sentence enhancement 

is not dependent on a criminal conviction under the United 

States Sentencing Guidelines. Specifically, the Guidelines 

state that “[i]f the Defendant . . . [u]sed or possessed any 

firearm or ammunition in connection with another felony offense; 

or possessed or transferred any firearm or ammunition with 

knowledge, intent, or reason to believe that it would be used or 

possessed in connection with another felony offense, increase 

[the sentencing level] by 4 levels.” USCG, § 2K2.1(b)(6)(B). 

The comments to that section state that “‘[a]ny felony offense,’ 

for purposes of subsection (b)(6)(B), means any Federal, state, 

or local offense, other than the explosive or firearms 

possession or trafficking offense, punishable by imprisonment 

for a term exceeding one year, regardless of whether a criminal 

charge was brought, or a conviction obtained.” USCG, § 2K2.1 

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cmt. n. 14(C). The Court further notes that, in United States 

v. Sako, 277 Fed.App’x. 853, 854-55 (11th Cir. 2008)

(unpublished), the Eleventh Circuit Court of Appeals upheld this 

sentencing provision, even though the state charge in that case 

on which it was based had been dismissed.

The Court finds that Petitioner’s first claim is improperly 

brought in this action because it was not raised on appeal. The 

Court further finds that the claim has no merit. Therefore, it 

is recommended that the claim be denied.

Curtis has also raised the claim that his Attorney rendered 

ineffective assistance of counsel in not raising the claim that 

his sentence had been improperly enhanced on appeal. In 

Strickland v. Washington, 466 U.S. 668 (1984), the United States 

Supreme Court defined the showing a habeas petitioner must make 

to prevail on an ineffective assistance claim:

First, the defendant 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. Second, the defendant 

must show that the deficient performance 

prejudiced the defense. This requires 

showing that counsel's errors were so 

serious as to deprive the defendant of a 

fair trial, a trial whose result is 

reliable. Unless a defendant makes both 

showings, it cannot be said that the 

conviction . . . resulted from a breakdown 

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in the adversary process that renders the 

result unreliable. 

Id. at 687. 

The Court previously found that Curtis’s claim that his 

sentence was improperly enhanced was without merit. As such, 

his Attorney was not deficient in not raising a claim that had 

no merit. Furthermore, Petitioner can demonstrate no prejudice 

in his attorney’s decision not to raise the claim on appeal. 

Therefore, the Court finds that this claim has no merit and 

recommends that it be denied.

Curtis has raised two claims in this petition. Both are 

without merit. Therefore, it is recommended that the petition 

be denied, that this action be dismissed, and that judgment be 

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

and against Petitioner Nathan Curtis.

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2255 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) in this case be denied. 28 

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

or deny a certificate of appealability when it enters a final 

order adverse to the applicant”). The habeas corpus statute 

makes clear that an applicant is entitled to appeal a district 

court’s denial of his habeas corpus petition only where a 

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circuit justice or judge issues a COA. 28 U.S.C. § 2253(c)(1). 

A COA may issue only where “the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). When the merits of a claim are reached, a COA 

should issue only when the 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). Inasmuch as the Court has 

found that Curtis has failed to assert sufficient facts to 

support a claim of constitutional error, “[t]he petitioner must 

demonstrate that reasonable jurists would find the district 

court's assessment of the constitutional claims debatable or 

wrong.” Slack, 529 U.S. at 484. It is suggested that Curtis

will not be able to make that showing.

CONCLUSION

It is recommended that Petitioner’s Motion to Vacate, Set 

Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 29) be 

denied. It is further recommended that any certificate of 

appealability filed by Petitioner be denied as he is not 

entitled to appeal in forma pauperis.

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NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

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

objects to this recommendation or anything in it must, within 

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

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

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

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 22nd day of January, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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