IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GERALD D. HALL, :

Petitioner, : CIVIL ACTION NO. 13-0094-CG-C

v. : CRIMINAL ACTION NO. 11-0165-CG-C

UNITED STATES OF AMERICA, : 

Respondent.

REPORT AND RECOMMENDATION

This cause is before the Court on petitioner Gerald D. Halls’ motion to vacate, set 

aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 39), the response in 

opposition filed by the United States (Doc. 47), petitioner’s reply to the government’s 

response (Doc. 48), Hall’s supplemental submission of additional authority (Doc. 50 & 

51), the Government’s supplemental response in opposition (Doc. 54) and Hall’s reply in 

opposition to the United States’ response (Doc. 58). This action has been referred to the 

undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). Following consideration of all relevant pleadings in this case, it is 

recommended that Hall’s § 2255 motion be DENIED. 

I. FINDINGS OF FACT

On June 22, 2011, Hall was indicted on one count of possession of a firearm by a 

prohibited person in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, at 1-2.) 1 Hall made his 

initial appearance in this Court on July 6, 2011 (see Doc. 5), was arraigned on the charge

 1 The indictment informed Hall that as of a result of his December 17, 1992 conviction “for 

a crime punishable by imprisonment for a term exceeding one (1) year, to-wit: Burglary Third . . . 

in the Circuit Court of Mobile County, Alabama . . . [he] did knowingly possess, in and affecting 

commerce, four (4) firearms,” not manufactured in Alabama, in violation of 18 U.S.C. § 922(g)(1). 

(Id. at 1.) “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as 

provided in this title, imprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2).

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on the same day (Doc. 6), and was ordered detained on July 14, 2011 (Doc. 9). 

During the July 26, 2011 Probation Office Conference, which was attended by 

Hall, his retained attorney (James R. Harper, Jr.),2 Assistant United States Attorney Gina 

Vann and Probation Officer Vickie Orso, the participants, including petitioner, reviewed 

preliminary guideline calculations3 showing that although Hall’s indictment specifically 

charged that he had illegally possessed 4 firearms, the fact that there were actually 11 

firearms as well as drugs found at the time of Hall’s arrest, were all factors that would be 

considered during sentencing according to Worksheet A of the report on probation office 

conference. (Doc. 11, at 2.) A copy of this worksheet was provided to Hall and his 

attorney evinced by the attachment of a copy of Worksheet D from this report to his 

initial motion to vacate, set aside, or correct sentence. (Doc. 39, Ex. 1, at 30-32.)

Worksheet D informs that it is generated based on the information contained in 

Worksheet A, which took into consideration the actual number of firearms and the 

discovery of drugs during Hall’s arrest. (Doc. 11.) It is these preliminary guideline 

calculations that Hall alleges he reasonably believed would be applicable at sentencing 

according to information provided by Harper. (Doc. 40, at 10-12.) However, it should be 

noted that as early as July 26, 2011, Hall was in possession of all the information that was 

necessary to accurately calculate that his adjusted offense level would be 28 and his 

 2 Harper has represented Hall since 1999 in cases resulting in one felony conviction 

(possession of marijuana first) and four misdemeanor convictions (no pistol permit, two counts 

of possessing drug paraphernalia, harassing communication, and reckless endangerment).

3 “Attached are the guideline worksheets for your reference. These calculations are 

tentative based on the information known to the probation officer at this time. Additional 

factors, including relevant conduct, may apply if subsequent information becomes available. 

The parties should understand that these calculations are not binding on the Court or the 

probation officer.” (Doc. 11, at 1.)

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criminal history category would be VI. (Doc. 11, at 2-7.)4 Eight days after the Probation 

Office Conference, Hall, through Harper, notified this Court of his intent to plead guilty. 

(Doc. 12.)

On August 17, 2011, Hall, with the assistance of retained counsel (Harper) signed 

a Plea Agreement. (Doc. 15.)

5 Per the terms of this agreement, Hall presented the Court 

with information needed to assess the voluntariness of his plea. First, he expressly gave 

notice that he 

“. . . has had the benefit of legal counsel in negotiating this Plea 

Agreement. He has discussed the facts of this case with his attorney, and 

his attorney has explained to the defendant the essential legal elements of 

the criminal charge which has been brought against him.” 

(Id. at 2.) Secondly, he acknowledged that the penalties that could be imposed if he 

pleaded guilty included:

 4 There are two discrepancies between the preliminary guideline calculations presented to 

the defendant and his attorney on July 29, 2011 (Doc. 11) and the final calculations contained in 

the Pretrial Services Report on November 3, 2011 (Doc. 20), that yielded different Base Offense 

Levels, 24 vs. 28. The errors made in the preliminary calculations were capable of detection by 

anyone who took the time to review the Sentencing Guidelines for themselves in order to check 

the accuracy of the preliminary calculations made by the Probation Officer. First, when 

calculating the Base Offense Level, the preliminary calculations referenced 2K2.1(a)(6) instead of 

2K2.1(a)(4)(A) causing a miscalculation of 6 levels, 14 vs. 20. It would have been clear to Hall 

and his attorney that the appropriate base level was 20 because of the defendant’s prior felony 

conviction for drug possession listed in both reports. The second discrepancy in the two reports 

involved the calculation of additional levels to be added to the base offense level pursuant to 

2K2.1(b)(6), 6 vs. 4. Again, the preliminary calculations were in error, the correct number of 

additional offense levels is 4 (“If the defendant used or possessed any firearm or ammunition in 

connection with another felony offense; ... increase by 4 levels.”) (2010 Federal Sentencing 

Guideline Manual & Supplement) (emphasis in original). The net result of the mistakes made in 

the preliminary calculations was that Hall’s Adjusted Offense Level was miscalculated by 4 

levels even though the information necessary to reach a correct result was provided to all 

participants. Thus, immediately after the Probation Office Conference, Hall and Harper had the 

information from which it was easy to calculate that the sentence range most likely would be 

110-137 months instead of 77-96 months.

5 “I have consulted with my counsel and fully understand all my rights with respect to the 

offense charged in the Indictment pending against me. I have read this Plea Agreement and 

carefully reviewed every part of it with my attorney. I understand this agreement, and I 

voluntarily agree to it.” (Id. at 13.)

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The maximum penalty the Court could impose as to Count One of the 

Indictment is:

a. 10 years imprisonment;

b. A fine not to exceed $250,000.00;

c. A term of supervised release of 3 years, which would follow any 

term of imprisonment. If the defendant violates the conditions of 

supervised release, he could be imprisoned for the entire term of 

supervised release;

d. A mandatory special assessment of $100.00; and

e. Such restitution as may be ordered by the Court.

(Id. at 4) Third, he made clear that he understood that if the trial judge accepted 

his guilty plea an advisory sentence range could not be reasonably calculated 

until a pre-sentence investigation was completed.

The Court will impose the sentence in this case. The United States 

Sentencing Guidelines are advisory and do not bind the Court. The 

defendant has reviewed the application of the Guidelines with his 

attorney and understands that no one can predict with certainty what the 

sentencing range will be in this case until after a pre-sentence 

investigation has been completed and the Court has ruled on the results of 

that investigation. The defendant understands that at sentencing, the 

Court may not necessarily sentence the defendant in accordance with the 

Guidelines. The defendant understands that he will not be allowed to 

withdraw his guilty plea if the advisory guideline range is higher than 

expected, or if the Court departs or varies from the advisory guideline 

range.

(Id. at 4-5 (emphasis added).) Fourth, in a separate factual resume attached to the plea 

agreement, Hall agreed that the facts contained in the resume were true and correct. (Id. 

at 3; see also Doc. 15, at 14-16 (the factual resume in addition to the plea agreement, is also 

signed by Hall).) A crucial fact contained therein was that he “was seen walking out of 

the bedroom that he slept in when he visited his sister. This bedroom contained eleven 

firearms and ammunition.” (Id. at 15.) Fifth, the plea agreement also contains a 

provision providing a Limited Waiver of Right to Appeal and Waiver of Collateral 

Attack:

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22. As part of the bargained-for exchange represented in this plea 

agreement, and subject to the limited exceptions below, the 

defendant knowingly and voluntarily waives the right to file any 

direct appeal or any collateral attack, including a motion to 

vacate, set aside, or correct sentence under 28 U.S.C. § 2255. 

Accordingly, the defendant will not challenge his guilty plea, 

conviction, or sentence (including a sentence imposed on 

revocation of probation or supervised release) in any district court 

or appellate court proceedings.

a. EXCEPTIONS. The defendant reserves the right to timely file a 

direct appeal challenging:

(1) any sentence imposed in excess of the statutory maximum;

(2) any sentence which constitutes an upward departure or 

variance from the advisory guideline range.

(Doc. 15, at 11 (emphasis added).) Lastly, the plea agreement provides that “[t]his 

document is the complete statement of the agreement between the defendant and the 

United States and may not be altered unless done so in writing and signed by all the 

parties.” (Id. at 12.)

Later that day, Hall appeared before the Honorable Callie V.S. Granade for his 

plea colloquy pursuant to Rule 11, Fed.R.Cr.P. (Doc. 16; see also Doc. 40 (transcript).) 

During the plea colloquy, the Court specifically asked Hall:

THE COURT: Are you fully satisfied with the counsel, 

representation, and advice given to you in your case by your 

attorney?

DEFENDANT HALL: Yes, ma’am.

. . . 

THE COURT: Now, [ ] Mr. Hall . . . I’ve been provided with a plea 

agreement and an attached factual resume, and I want . . . 

you to look at those documents and tell me on the record 

whether that is your plea agreement and factual resume and 

whether you signed those documents.

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DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: All right. For Mr. Hall . . . did . . . you have the 

opportunity to read and discuss the plea agreement with 

your lawyer before you signed it?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: And do you have any agreements with the United 

States Government concerning your case that are not written 

down in your plea agreement?

DEFENDANT HALL: No, ma’am.

. . .

THE COURT: Do you understand the terms of your plea agreement?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: Has anyone made any other or different promises or 

assurances to you of any kind in an effort to induce you to 

plead guilty in your case?

DEFENDANT HALL: No, ma’am.

. . .

THE COURT: Do you understand that certain of the terms of your 

plea agreement are merely recommendations to the Court 

and that I can reject those recommendations without 

permitting you to withdraw your plea of guilty and impose 

a sentence that is more severe than you might anticipate?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: Are you pleading guilty of your own free will because 

you are guilty?

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DEFENDANT HALL: Yes, ma’am.

. . . 

THE COURT: Now, the offense to which you are pleading guilty has 

an enhancement provision which applies only in certain 

circumstances and I don‘t know whether it applies in your 

case or not, because I don’t know your entire criminal 

history. But if you have three qualifying violent felony 

convictions or drug convictions in your background, that 

changes the penalty in your case and that would be a 

minimum mandatory 15 years up to life imprisonment. I 

need to tell you about that simply because I do not know 

whether it applies in your case. Do you understand that 

that’s a possibility if you have those qualifying convictions 

in your background?

DEFENDANT HALL: Yes, ma’am.

. . . .

THE COURT: All right. Now, under the Sentencing Reform Act of 

1984, the United States Sentencing Commission has issued

guidelines for judges to consider in determining the sentence 

in a criminal case. Have you and your attorney talked about 

how the sentencing guidelines might affect your sentence?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: Do you understand that the Court will not be able to 

determine the guideline sentencing range for your case until 

after the probation office has prepared a presentence report 

and you and the government have had the opportunity to 

challenge the reported facts and the application of the 

guidelines recommended by the probation office and that 

the guideline range determined by the Court may be 

different from any estimate your attorney or anybody else 

might have given you in this case?

DEFENDANT HALL: Yes, ma’am.

. . .

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THE COURT: Do you also understand that, once the guideline range 

has been determined, the guidelines further provide for 

departures either upwards or downwards from that range in 

certain circumstances?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: And do you also understand that, although the Court 

is required to consider the guidelines when determining the 

sentence, the guidelines are advisory and do not necessarily 

control the sentence imposed?

DEFENDANT HALL: Yes, ma’am.

. . . 

THE COURT: All right. And for Mr. Hall . . . you have [ ] entered 

into a plea agreement which waives certain of your rights to 

appeal the sentence, and in [ ] your case[] you have retained 

the right to appeal the sentence only if sentence is imposed 

in excess of the statutory maximum or if the sentence is 

imposed that constitutes an upward departure or variance 

from the sentencing guideline range. Do . . . you understand 

that you have waived your right to appeal in all but those 

two circumstances outlined in your plea agreement?

DEFENDANT HALL: Yes, ma’ am.

. . .

THE COURT: And do . . . you also understand that you have 

waived your right to file a collateral attack on your 

conviction once it becomes final?

DEFENDANT HALL: Yes, ma’ am.

. . . .

THE COURT: All right. Now, for Mr. Hall . . ., I asked you earlier if 

you had signed the factual resume attached to your plea 

agreement and you said that you had. And I want to make 

sure that you understand that by signing the factual resume 

you are agreeing that the government could prove the facts 

set forth in that document in order to support your guilty 

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plea. Do . . . you understand and agree to that?

DEFENDANT HALL: Yes, ma’am.

. . . 

THE COURT: . . . Now, as I stated earlier, the probation office will 

be preparing a presentence report. 

(Doc. 40, at 5-7, 9-11, 15, 17.) As demonstrated by the above testimony, Hall agreed that 

he understood that the presentence investigation report was not yet completed and that,

once completed, the report is a mere guideline for the Court to consider and is not 

binding on the Court’s decision regarding sentencing. (See id.) 

On October 5, 2011, a draft of the presentence investigation report was submitted. 

(Doc. 17.) This report contained both the U.S.S.G. § 2(k)2.1(b)(1)(B) and § 2k2.1(b)(6) 

sentencing enhancements that the defendant now alleges came as a surprise during his 

sentencing hearing. (Id. at 6; see also Doc. 39, at 5.) The final calculation of the guideline 

range, to which no objection has been presented, resulted in a recommendation that the 

sentence range should be between 110 to 137 months, which was reduced to 110 to 120 

months in accordance with the statutory maximum penalty as directed by U.S.S.G. § 

5G1.1(c)(1). (Doc. 17, at 17.) 

On November 1, 2011, Harper filed his client’s position regarding these 

sentencing factors without objections to the report as filed. (Doc. 18 (emphasis added).)

6

On November 3, 2011, a final presentence investigation report was filed with this Court. 

(Doc. 20.) The only change in the report was a modification to paragraph 73, which had 

 6 “COMES NOW the Defendant . . . and states that the Defendant has no objections to the 

Presentence Report, including the application of the sentencing guidelines filed by the United 

States Probation Office.” (Doc. 18, at 1.)

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incorrectly indicated that Hall’s attorney, Harper, was appointed rather than retained. 

(Compare Doc. 17, at 17 with Doc. 20, at 17.)7 There were no other changes. (Id.) Along 

with the report, the U.S. Probation Officer filed a certification “that the presentence 

report, including any revision thereof, has been provided to the defendant’s attorney for 

disclosure to the defendant.” (Doc. 21.) The certification also makes note that, “[t]o date, 

the defendant, through counsel, has not filed objections.” (Id.) 

One hundred and four (104) days later, Hall appeared before this Court for 

sentencing. (Doc. 28.) Even though no objections were ever filed to the 

recommendations in the presentence report, Hall’s attorney did take the opportunity to 

point out to Judge Granade the variance in the preliminary and final guideline 

calculations. 

THE COURT: All right. Mr. Harper, have you and Mr. Hall been 

over the presentence report?

MR. HARPER: Yes, ma’ am.

THE COURT: And are there any objections to it?

MR. HARPER: No, ma’ am.

THE COURT: All right. I find that the total offense level in this case is 

25 with a criminal history category of VI. Are there any 

objections to those findings?

 7 Paragraph 73 of Doc. 17 states: “The defendant is unemployed, and upon his release he 

will be dependent on others for financial assistance. Hall’s attorney has been appointed by the 

Court. At the present time, the defendant does not appear to have the ability to pay a fine. 

Further, the defendant’s lack of marketable job skills, and his extended absence from the job 

market make it unlikely that he will possess the future ability to pay a fine.” (Id. (emphasis in 

original).) The foregoing language can be compared with that contained in the Final Presentence 

Investigation Report, which reads: “The defendant is unemployed, and upon his release he will 

be dependent on others for financial assistance. Although Hall’s attorney has been retained, the 

defendant does not appear to have the ability to pay a fine. Further, the defendant’s lack of 

marketable job skills, and his extended absence from the job market[,] make it unlikely that he 

will possess the future ability to pay a fine.” (Doc. 20, at ¶ 73 (emphasis in original).)

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MR. HARPER: No, ma’ am.

THE COURT: All right. I’ll hear from you on behalf of your client.

MR. HARPER: Your Honor, as in all criminal cases, there’s sort of a 

set way of doing things, if you’re going to plead guilty or if 

you’re not. But the preconference, or probation conference 

here, had determined a different guideline range than the 

presentence guideline range. His guideline range was 77 to 96 

months minimum and the presentence was 110 to 120 

months. I talked to the probation officer about it and, of 

course, it was a good length of time between these two 

instances. But the probation office said, well, they just made a 

mistake.

So, [] I would point out that the discrepancy was done at the 

time, and then when we sort of got an almost maximumsentence guideline on this, it was a pretty good shock to us 

and to Mr. Hall.

Judge, Mr. Hall has tried to assist the government, he has 

tried to assist his arresting officers, his family’s tried to help. 

He obviously was locked up and limited in his ability, but he 

earnestly tried. 

He doesn’t have any violent crimes, Judge. He’s been 

smoking marijuana all his life. And if you look at his history, 

that’s pretty much where he’s been all this time.

I think the arresting officers tried to help him out on this. 

And I think several people have tried to help him out. And 

she told me that he has a job waiting on him with her brother. 

He was working for her brother when she arrested him, and 

that he’s willing to take him back once he gets out of jail.

And, Judge, I have one family member would like to say 

something as well. I just would like you to take into 

consideration that the guidelines, because of his extensive 

criminal history - - and smoking pot is what it is, Judge, and 

he was clean of everything when he was arrested, except pot, 

as well; they drug tested him - - but to not go by the 

maximum guidelines and try to go by the ones that were 

originally talked about, the 77 months or something like that. 

And it’s almost three years’ difference in the sentence.

And like I said, I would ask you to take into consideration 

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that I’ve known Gerald for 15 years probably. I don’t know 

him to be anything but a good ol’ boy up in the country 

smoking dope and fishing.

And, Judge, the other thing I would like to point out, there’s 

11 guns charged, which raised the stakes on his sentence. 

And he was staying at his sister’s house that night. He told 

the - - Gerald, I’ve never known him to lie to the police, 

either. He told the officers that: “If you check, there’s two 

pistols up there. I cleaned them, my fingerprints will be on 

them, and I went hunting last night with a shotgun,” or 

whatever it was.

The rest of those guns were just in that closet that belonged to 

his sister, her sons, that type of thing. I know he’s charged 

with them and we’ve admitted to that, you know, he was in 

there and we’re not arguing over that. But I’d ask you to 

consider that he wasn’t walking around with 11 shotguns or 

something like that in his car or that type of thing, o[r] 

trafficking in guns or anything like that. He admitted he went 

hunting and he cleaned a couple of those guns. 

. . . 

THE COURT: All right. Well, Mr. Harper, I understand your position 

on what the original guideline calculation was. But, as I tell 

everybody when they plead guilty, the guideline calculation 

that is initially arrived at usually doesn’t have all the 

information available, such as all the convictions or whatever 

the background is. And so the final guideline determination 

that is made by the Court is quite often different and quite 

often higher than the original one. And so, as I told Mr. Hall 

when he pled guilty, the sentence may well be higher than he 

might anticipate. And that turns out to be the case here.

I can’t say that the guidelines are overly strict in this case, 

because he does have a very lengthy criminal history, and 

that includes burglary and several drug charges.

I think he came fairly close to hitting the mark with the 15-

year minimum mandatory, and he’s very fortunate that that 

did not occur, because his guidelines would have been, then, 

a 15-year minimum sentence up to life imprisonment, if he 

had had one more conviction for a drug offense or a crime of 

violence – and burglary of a dwelling is considered a crime of 

violence under the guidelines.

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So I find that the guidelines sentence is appropriate here. And 

I do intend to sentence, according with the government’s 

recommendation, to the low end. But I realize that it’s not 

much below the statutory maximum in this case.

. . . 

Pursuant to the Sentencing Reform Act of 1984, it is the 

judgment of the Court that the defendant, Gerald Wayne 

Hall, is hereby committed to the custody of the United States 

Bureau of Prisons to be imprisoned for a term of 110 months 

as to count one. 

. . . 

Upon release from imprisonment, the defendant shall be 

placed on supervised release for a term of three years on 

count one.

. . . 

As I stated earlier, I do find the advisory guideline range is 

appropriate to the facts and circumstances of this case and 

does provide for a reasonable sentence, given the statutory 

purposes of sentencing. 

. . . 

Now, having stated the sentence that I intend to impose, are 

there any legal objections to it?

MR. HARPER: No, Your Honor.

. . . 

THE COURT: All right. I hereby impose the sentence as previously 

stated.

Now, Mr. Hall, you can appeal your conviction if you believe 

your guilty plea was unlawful or involuntary or if there’s 

some other fundamental defect in the proceeding that was 

not waived by your guilty plea.

You also have a statutory right to appeal the sentence itself. 

However, your plea agreement contained a waiver of certain 

of your rights to appeal the sentence. Such waivers are 

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generally enforceable. But if you believe the waiver to be 

unenforceable, you could test that theory in the appellate 

court. If you decide to appeal, you must do so within 14 days 

of entry of judgment in this case, and Mr. Harper could file 

that notice for you.

(Doc. 28, Sentencing Transcript, at 2-4, 6-9.) No direct appeal was ever filed in this 

case. (See Doc. 39.) 

II. CLAIMS

On February 15, 2013, Hall filed a Motion to Vacate pursuant to 28 U.S.C. 2255. 

(Id.) Hall alleges that he “was denied his Sixth Amendment right to the effective 

assistance [of counsel] during [the] plea negotiation process”8 and that he “was denied 

his Sixth Amendment right to the effective assistance of counsel at the sentencing phase 

of [the] criminal proceeding.” (Id. at 4-5.) 9

III. CONCLUSIONS OF LAW

A. Motions To Vacate A Sentence.

Section 2255 reads, in pertinent part, as follows: 

A prisoner in custody under sentence of a court established by Act of 

Congress claiming the right to be released upon the ground that the 

sentence was imposed in violation of the Constitution or laws of the 

United States, or that the court was without jurisdiction to impose such 

sentence, or that the sentence was in excess of the maximum authorized 

by law, or is otherwise subject to collateral attack, may move the court 

which imposed the sentence to vacate, set aside or correct the sentence. 

 8 “Movant contends that defense counsel Jim Harper denied him his Sixth Amendment 

right to the effective assistance of counsel based upon the following fact(s): a) Counsel 

misrepresented the fact that by pleading guilty to Count One of the indictment the government 

would ‘only’ rely upon four (4) firearms as alleged in the Factual Basis, b) that he would receive 

a sentence of no more than 77 months, and misrepresented that Movant would not be enhanced 

for the eleven (11) firearms pursuant to U.S.S.G. § 2K2.1(b)(1)(B).” (Doc. 39, at 4.)

9 “Movant contends defense counsel Jim Harper was ineffective for failing to object to the 

sentence enhancements imposed pursuant to U.S.S.G. § 2K2.1 (b) & U.S.S.G. § 2K2.1(b)(6), and 

that the Court clearly erred in its application of said enhancements.” (Doc. 39, at 5.)

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28 U.S.C. § 2255(a). 

B. Scope Of Relief Under § 2255.

The scope of collateral relief to a conviction is limited:

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 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 WL 3200694 at *3 (S.D.Ala. Aug. 6, 2008).

C. Procedural Default.

The general rule of thumb is that claims which could have been raised on

direct appeal may not be pursued in a 2255 motion. Massaro v. United States, 538 U.S. 

500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003); see also McKay v. United States, 657 

F.3d 1190, 1196 (11th Cir. 2011) (“Under the procedural default rule, a defendant 

generally must advance an 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.” (internal quotation marks and citation omitted)). In those cases where the 

defendant pleads guilty, the voluntariness and intelligence of his guilty plea can be 

attacked on collateral review only in those instances where this claim was pursued on 

direct review. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610, 140 L.Ed. 2d 

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828 (1998). Defaulted claims are barred from collateral review unless the moving party 

is able to demonstrate cause and prejudice or that he is actually innocent10 of the crime 

underlying his sentence. Id. at 622 & 623, 118 S.Ct. at 1611. 

In order to excuse a procedural default, the cause ordinarily deemed sufficient is 

when some external impediment has prevented “counsel from constructing or raising 

the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 

(1986). “Constitutionally ineffective assistance of counsel can constitute cause.” Holladay 

v. Haley, 209 F.3d 1243, 1254 (11th Cir.) (citations omitted), cert. denied, 531 U.S. 1017, 121 

S.Ct. 578, 148 L.Ed.2d 495 (2000). “In order to do so, however, the claim of ineffective 

assistance must have merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.2000)

(citation omitted), cert. denied, 531 U.S. 1131, 121 S.Ct. 892, 148 L.Ed.2d 799 (2001).

“To demonstrate prejudice, the second prong, [Hall] ‘must shoulder 

the burden of showing, not merely that the errors [of] his [attorney] created a possibility

of prejudice, but that they worked to his actual and substantial disadvantage, infecting 

his entire trial [court proceedings] with error of constitutional dimensions.’ Brown v. 

United States, 720 F.3d 1316, 1333 (11th Cir. 2013) (quoting United States v. Frady, supra, 

456 U.S. at 170, 102 S.Ct. at 1596), cert. denied, 2014 WL 772423 (Oct. 6, 2014).

D. Waiver Of Rights To Appeal A Plea of Guilty.

As outlined above, Hall signed the Plea Agreement on August 17, 2011. (Doc. 15.) 

Per the terms of the agreement, Hall waived his right to file any “motion to vacate, set 

aside, or correct sentence under 28 U.S.C. § 2255.” (Id. at 11.) The government argues that 

this waiver procedurally bars Hall’s ability to bring this action. (Doc. 47, at 2.) Hall 

 10 Mr. Hall does not assert that he is actually innocent of the charge that he possessed 

firearms after having been convicted of a felony offense.

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17

alleges that the “constitutionally deficient performance of his counsel tainted the plea 

negotiations process, resulting in plea and waiver that were not made knowingly, 

intelligently, or voluntarily.” (Doc. 39, at 5.) 

“It is well-settled that sentence-appeal waivers are valid if made knowingly and 

voluntarily.” Williams v. United States, 396 F.3d 1340, 1341 (11th Cir.), cert. denied, 546 U.S. 

902, 126 S.Ct. 246, 163 L.Ed.2d 226 (2005). The Williams court, for the first time,

determined that “a valid sentence-appeal waiver, entered into voluntarily and 

knowingly pursuant to a plea agreement, precludes the defendant from attempting to 

attack, in a collateral proceeding, the sentence through a claim of ineffective assistance 

of counsel during sentencing.” Id. at 1342 (emphasis added). Therefore, when it is 

determined that a petitioner has knowingly and voluntarily waived his right to attack 

his sentence collaterally, he is barred from pursuing collateral relief under § 2255 based

on ineffective assistance of counsel at sentencing. The Eleventh Circuit “will enforce a 

sentence appeal waiver if the government demonstrates either that ‘(1) the district court 

specifically questioned the defendant concerning the sentence appeal waiver during the 

Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant 

otherwise understood the full significance of the waiver.’” Lattimore v. United States, 185 

Fed. Appx. 808, 810 (11th Cir. 2006), quoting United States v. Bushert, 997 F.2d 1343, 1351

(11th Cir. 1993). 

E. Strickland v. Washington Standard.

Hall preeminently contends that constitutionally ineffective assistance of counsel 

entitles him to the relief afforded by 28 U.S.C. § 2255. (Doc. 39.) In order to establish a

claim of ineffective assistance of counsel, a petitioner is required to show (1) that his 

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18

attorney’s representation fell below “an objective standard of reasonableness” and (2) 

that a reasonable probability exists that but for counsel’s unprofessional conduct, the 

result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Jones v. United States, 478 

Fed.Appx. 536, 539-40 (11th Cir. Sept. 23, 2011) (“To make a successful claim of 

ineffective assistance of counsel, a defendant must show: (1) his counsel’s performance 

was deficient; and (2) the deficient performance prejudiced his defense.”).

11 “The burden 

of persuasion is on a section 2255 petitioner to prove, by a preponderance of the 

competent evidence, both that counsel’s performance was unreasonable, and that []he 

was prejudiced by that performance.” Demar v. United States, 228 Fed.Appx. 940, 950 

(11th Cir. Jun. 21, 2007) (quotation marks, brackets and citations omitted); see also Johnson 

v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears the burden of proof 

on the ‘performance’ prong as well as the ‘prejudice’ prong of a Strickland claim, and 

both prongs must be proved to prevail.”), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 

926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002). The Strickland standard for evaluating claims 

of ineffective assistance of counsel was held applicable to the entry of guilty pleas in Hill 

v. Lockhart. 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). 

To succeed on such a claim, “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.” Strickland v. Washington, 466 U.S. 

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).12 In addition, the 

 11 “Unpublished opinions are not considered binding precedent, but they may be cited as 

persuasive authority.” 11th Cir. R. 36-2.

12 “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).

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defendant must establish that “counsel’s constitutionally ineffective 

performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 

106 S.Ct. at 370. In other words, . . . [a petitioner] “must show that there is 

a reasonable probability that, but for counsel’s errors, he would . . . have 

pleaded [not] guilty and would . . . have insisted on going to trial.” Hill, 

474 U.S. at 59, 106 S.Ct. at 370.13

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (footnotes, brackets and ellipses 

added), cert. denied, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d 860 (1996). Indeed, in the 

guilty-plea context, the Eleventh Circuit has held that “’counsel owes a lesser duty to a 

client who pleads guilty than to one who decides to go to trial, and in the former case 

counsel need only provide his client with an understanding of the law in relation to the 

facts, so that the accused may make an informed and conscious choice between 

accepting the prosecution’s offer and going to trial.’” Carter v. United States, 288 

Fed.Appx. 648, 649 (11th Cir. Aug. 4, 2008), quoting Wofford v. Wainwright, 748 F.2d 1505, 

1508 (11th Cir. 1984).14

Given the two-prong nature of the test for adjudicating ineffective-assistance-ofcounsel claims, it can come as no surprise that “‘the cases in which petitioners can 

properly prevail on the ground of ineffective assistance of counsel are few and far 

between.’” Johnson, supra, 256 F.3d at 1176 (citation omitted). 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 

 13 “The best way to evaluate whether there is a reasonable probability a petitioner would 

have insisted on going to trial is to determine whether petitioner had available a defense that 

would likely have borne fruit at trial.” Rosado v. Secretary, Dep’t of Corrections, 2010 WL 2976886, 

*4 (M.D. Fla. July 20, 2010) (citations omitted).

14 “’To impart such an understanding to the accused, counsel must, after making an 

independent examination of the facts, circumstances, pleadings and laws involved, offer his 

informed opinion as to the best course to be followed in protecting the interests of his client.’” 

Id., quoting Wofford, 748 F.2d at 1508.

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omitted), cert. denied, 527 U.S. 1008, 119 S.Ct. 22347, 144 L.Ed.2d 243 (1999); see also 

Adamson v. United States, 288 Fed.Appx. 591, 594 (11th Cir. July 29, 2008) (“The defendant 

must satisfy both prongs of this test to show a Sixth Amendment violation; if the 

defendant fails to demonstrate one of these prongs sufficiently, we do not need to 

address the other.”), cert. denied, 555 U.S. 1010, 129 S.Ct. 526, 172 L.Ed.2d 385 (2008); 

Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (“[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.”). 

In undertaking this analysis, courts “must avoid second-guessing counsel's 

performance[,]” must avoid “using ‘the distorting effects of hindsight,’ and must 

evaluate the reasonableness of counsel's performance ‘from counsel's perspective at the 

time.’“ Chandler v. United States, 218 F.3d. 1305, 1314 & 1316 (11th Cir. 2000) (citation 

omitted), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). Further, 

“[c]ourts must ‘indulge [the] strong presumption’ that counsel's performance was 

reasonable and that counsel ‘made all significant decisions in the exercise of reasonable 

professional judgment.’“ Id. at 1314 (citations omitted). Therefore, “counsel cannot be 

adjudged incompetent for performing in a particular way in a case, as long as the 

approach taken ‘might be considered sound trial strategy.’” Id. (citation omitted).

IV. ANALYSIS

A. Ineffective Assistance of Counsel During Plea Negotiations.

Hall contends that his retained attorney (Jim Harper) failed to protect his right to 

a fair and equitable plea agreement because “counsel misrepresented the fact that by 

pleading guilty to Count One of the indictment, the government would ‘only’ rely upon 

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21

four (4) firearms as alleged in the Factual Resume/Basis.” (See Doc. 39, Ex.1, at 8.) Hall 

alleges that instead, the Government relied upon all 11 firearms that were seized when 

he was arrested. (Id. at 9.) Hall believes that, as a result, he was erroneously assessed 2 

additional enhancement points under the United States Sentencing Guidelines. (Id. at 

19.) Under the sentencing guidelines, “if the offense involved three or more firearms, -

[the guideline range will be] increase[d] as follows . . . (A) 3-7 . . . add 2 . . . (B) 8-24 . . . 

add 4.” U.S.S.G. § 2K2.1(b)(1)(A) & (B). 

To the extent that Hall alleges that his plea was not entered intelligently and 

voluntarily, he clearly had the necessary information to submit this claim on direct 

appeal.

15 His failure to take advantage of that opportunity bars the claim from collateral 

review without a showing of either cause and actual prejudice or actual innocence. 

Bousley, supra, 523 U.S. at 621, 118 S.Ct. at 1610.

“It is well settled that a voluntary and intelligent plea of guilty made by an 

accused person, who has been advised by competent counsel, may not be 

collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-

2547, 81 L.Ed.2d 437 (1984) (footnote omitted). And even the voluntariness and 

intelligence of a guilty plea can be attacked on collateral review only if first 

challenged on direct review. Habeas review is an extraordinary remedy and “‘will 

not be allowed to do service for an appeal.’” Reed v. Farley, 512 U.S. 339, 354, 114 

 15 Hall is attacking the intelligence of his plea, not the voluntariness of his decision. No 

force or promises were utilized to obtain his plea. He only relates that he was misled by his 

attorney’s calculation of what his sentencing range would be even though he was clearly advised 

that the Court would determine the range and that it could not be calculated at the time of his 

plea. See Bousley, 523 U.S. at 621 & 621-622, 118 S.Ct. at 1610 & 1610-1611 (“In this case, 

petitioner contested his sentence on appeal, but did not challenge the validity of his plea. In 

failing to do so, petitioner procedurally defaulted the claim he now presses on us.... In Waley v. 

Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942) (per curiam), we held that there was such 

an exception for a claim that a plea of guilty had been coerced by threats made by a Government 

agent, when the facts were ‘dehors the record and their effect on the judgment was not open to 

consideration and review on appeal.’ Id., at 104, 62 S.Ct., at 966. Petitioner's claim, however, 

differs significantly from that advanced in Waley. He is not arguing that his guilty plea was 

involuntary because it was coerced, but rather that it was not intelligent because the information 

provided him by the District Court at his plea colloquy was erroneous. This type of claim can be 

fully and completely addressed on direct review based on the record created at the plea 

colloquy.”)

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S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quoting Sunal v. Large, 332 U.S. 174, 178, 

67 S.Ct. 1588, 1590-1591, 91 L.Ed. 1982 (1947)). Indeed, “the concern with finality 

served by the limitation on collateral attack has special force with respect to 

convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 

S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979).

...

Where a defendant has procedurally defaulted a claim by failing to raise it 

on direct review, the claim may be raised in habeas only if the defendant can first 

demonstrate either “cause” and actual “prejudice,” Murray v. Carrier, 477 U.S. 478, 

485, 106 S.Ct. 2639, 2643-2644, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 

72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977), or that he is “actually 

innocent,” Murray, supra, at 496, 106 S.Ct., at 2649-2650; Smith v. Murray, 477 U.S. 

527, 537, 106 S.Ct. 2661, 2667-2668, 91 L.Ed.2d 434 (1986).

Id. at 621 & 622, 118 S.Ct. at 1610 & 1611.

Hall’s Petition does not contain a showing of cause for his failure to challenge the 

validity of his plea on direct appeal. There is no allegation or proof that he is actually 

innocent of possessing firearms (whether four or eleven) after having been convicted of a 

drug-related felony offense. Accordingly, this claim is barred by the doctrine of 

procedural default.

A review of the merits of this claim does not change the outcome. The plea 

colloquy with Judge Granade completely satisfied the requirements of Rule 11, Federal 

Rules of Criminal Procedure.

Fed.R.Crim.P. 11 requires a district court to “conduct an inquiry into 

whether the defendant makes a knowing and voluntary guilty plea,” before the 

court accepts the plea. United States v. Hernandez–Fraire, 208 F.3d 945, 949 (11th 

Cir.2000). For a guilty plea to be made knowingly and voluntarily, the court 

accepting the guilty plea must “specifically address three ‘core principles,’ 

ensuring that a defendant (1) enters his guilty plea free from coercion, (2) 

understands the nature of the charges, and (3) understands the consequences of 

his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005). In addition, 

“a defendant who seeks reversal of his conviction after a guilty plea ... must show 

a reasonable probability that, but for the error, he would not have entered the 

plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 

L.Ed.2d 157 (2004)). When considering the effect of any errors in the taking of the 

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guilty plea, the Court may look to the entire record as a whole. U.S. v. Vonn, 535 

U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

United States v. Day, 2012 WL 1230624, *2 (N.D. Fla. March 14, 2012), report and 

recommendation adopted, United States v. Day, 2012 WL 1230823 (N.D. Fla. April 11, 2012), 

cert. denied, 134 S.Ct. 2151, 82 USLW 3651 (2014). 

Regardless of what he may have understood the guideline range to be after the 

Probation Office Conference, when Hall appeared before Judge Granade for a change-ofplea hearing, he was notified of the minimum and maximum sentences that would apply 

in his case and further, that the guideline range could not be calculated at the plea 

hearing but must await the completion of the presentence investigation. In addition, 

when Judge Granade provided him with this information, he clearly and unequivocally 

gave his sworn statement that he understood. His understanding that the preliminary 

guideline calculations would not control the ultimate decision on sentencing did not 

deter his decision to enter a guilty plea.

The record is replete with evidence that Hall did not have a reasonable 

expectation that the Government would agree to a two level enhancement as opposed to 

four levels. He was arrested in his sister’s home where all eleven firearms were found. 

During the plea negotiations, he and his attorney executed a plea agreement, which 

recorded the entirety of their agreement and contained a factual resume that clearly

included all eleven firearms. When Judge Granade advised him that the Sentencing 

Guidelines were advisory and could not be calculated until the pretrial investigation was 

complete, his response was unequivocal – he understood. Even after the Pretrial Services 

Report was filed, neither he nor Mr. Harper disputed the fact that his Base Offense Level 

should be increased by four levels because of the number of firearms discovered. 

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As recently underscored by a district court in this Circuit, “[a] criminal defendant 

does not have the right to obtain a plea agreement with terms tailored to his liking.” 

Hernandez v. United States, 2012 WL 728208, *2 (M.D. Fla. Mar. 6, 2012). This is because 

“the decision of whether to offer a plea agreement and what terms to include in that 

agreement are matters of prosecutorial discretion[.]” Id., citing Weatherford v. Bursey, 429 

U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) (“[T]here is no constitutional right to 

plea bargain; the prosecutor need not do so if he prefers to go to trial.”) (other citation 

omitted). Given the government’s discretion in this regard, along with record evidence 

placing Hall on notice of the applicability of the § 2K2.1(b)(1)(B) enhancement (Doc. 11, 

at 2)—as well as petitioner’s admission that at the time of the arrest there were 11 

firearms present (see Doc. 15, at 15 (The factual statement that Hall signed states that 

“Hall was seen walking out of the bedroom that he slept in when he visited his sister. 

This bedroom contained eleven firearms.”)—petitioner’s conclusory speculation that his 

attorney could have bargained with the government for a more favorable plea 

agreement fails. Compare Hernandez, supra, at *2 (“Vague, conclusory, speculative, or 

unsupported claims cannot support an ineffective assistance of counsel claim.”) and

Williams v. United States, 2011 WL 3268308, *5 (M.D. Fla. Aug. 1, 2011) (same) with Chavez 

v. Secretary Florida Dep’t of Corrections, 647 F.3d 1057, 1061 (11th Cir. 2011) (“The 

allegations must be factual and specific, not conclusory.”), cert. denied, 132 S.Ct. 1018, 181 

L.Ed.2d 752 (2012). 

Hall alleges, however, that during plea negotiations Harper advised him that the 

government would not elevate the enhancements under § 2K2.1(b)(1)(B), which Hall 

understood meant that the government would only take into account 4 of the 11 firearms 

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that were found when Hall was arrested. (Doc. 39, Ex. 1, at 8-9.) The crux of this 

argument is that he believed that the government would only seek the low end of a 77-96 

month sentence compared to the 110-120 month sentence found to be applicable at 

sentencing. (Id. at 9.) It is Hall’s contention that had he known the government was 

going to seek enhancement, which he believes led to the higher recommended sentence, 

he would have pleaded not guilty and proceeded to trial. (Id.)

16 Hall bases his belief that 

the four level enhancement would not be considered at sentencing on the preliminary 

calculations contained in the initial worksheet that he was presented during the 

Probation Office Conference. (Doc. 11, at 7.) However, it is clear that Harper cleared up 

any misunderstanding of the possible sentencing range prior to the Court’s imposition of 

sentence: 

Your Honor, as in all criminal cases, there’s sort of a set way of doing 

things, if you’re going to plead guilty or if you’re not. But the 

preconference, or probation conference here, had determined a different 

guideline range than the presentence guideline range. His guideline range 

was 77 to 96 months minimum and the presentence was 110 to 120 

months. I talked to the probation officer about it and, of course, it was a 

good length of time between these two instances. But the probation office 

said, well, they just made a mistake.

(Doc. 28, at 2-3 (Statement of James Harper, Jr., Esq. during Hall’s sentencing hearing).) 

Even with a clear understanding of the applicable guideline range, Hall and Harper 

completed the sentencing hearing without voicing a single objection to the corrected 

calculations. 

 16 This self-serving statement should be rejected as unsupported by the record. Given the 

witness testimony, physical evidence, and Hall’s admission that he possessed at least four of the 

eleven firearms, a conviction would have been a foregone conclusion had he proceeded to trial. 

No evidence has been presented that would establish a viable defense or that the Government 

would have had difficulty in proving his guilt beyond a reasonable doubt. A decision to go to 

trial would have caused Hall to lose the three-point reduction in his offense level, as well as the 

Government’s agreement to recommend a sentence at the low end of the guidelines.

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What Hall fails to recognize is that the critical change between the initial 

probation conference and the final presentence report was not the application of the 

enhancements, but an increase in Hall’s actual base offense level. (Compare Doc. 11, at 2 

(base offense level of 14) with Doc. 20, at 6 (base offense level of 20).) Both calculations 

take into consideration the use of § 2K2.1(b)(1)(B) and § 2K2.1(b)(6)17 enhancements. (Id.) 

Further, the Court specifically warned Hall during the plea colloquy that this could 

happen:

THE COURT: All right. Now, under the Sentencing Reform Act of 

1984, the United States Sentencing Commission has issued 

guidelines for judges to consider in determining the sentence 

in a criminal case. Have you and your attorney talked about 

how the sentencing guidelines might affect your sentence?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: Do you understand that the Court will not be able to 

determine the guideline sentencing range for your case until 

after the probation office has prepared a presentence report 

and you and the government have had the opportunity to 

challenge the reported facts and the application of the 

guidelines recommended by the probation office and that 

the guideline range determined by the Court may be 

different from any estimate your attorney or anybody else 

might have given you in this case?

DEFENDANT HALL: Yes, ma’am.

. . .

THE COURT: Do you also understand that, once the guideline 

range has been determined, the guidelines further provide 

for departures either upwards or downwards from that 

range in certain circumstances?

 17 As previously stated, the correction of the original computation with regard to this 

enhancement operated in Hall’s favor. The original enhancement was projected to be six levels 

but was reduced to four at sentencing.

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DEFENDANT HALL: Yes, ma’am.

. . . 

THE COURT: And do you also understand that, although the Court 

is required to consider the guidelines when determining the 

sentence, the guidelines are advisory and do not necessarily 

control the sentence imposed?

DEFENDANT HALL: Yes, ma’am.

(Doc. 40 (plea colloquy), at 10-11.) Thus, Hall was advised prior to pleading guilty that 

the initial probation office report regarding his potential sentencing exposure was not a 

complete report and could change based upon a completion of the investigation into his 

criminal history and background. (Id.) Hall was also aware that the Court has the 

discretionary power to consider the sentencing guidelines as “advisory” and that his 

sentence could differ from that recommended to the Court. (Id.)

Thus, any mistakes that Harper made in calculating the guideline range prior to 

the entry of his guilty plea do not prove deficient performance or that Hall was 

prejudiced by the actions of Harper. Hall knew that the final calculations could be higher 

and that they were only advisory. Hall clearly knew and understood with certainty what 

the applicable minimum and maximum sentences were. It is also without doubt that the 

increase in Hall’s sentencing guideline range was not the result of any change in the 

preliminary calculations as to the applicability of a § 2K2.1(b)(1)(B) enhancement. (Doc. 

20, at 6.) Therefore, Hall cannot establish that Harper rendered ineffective assistance of 

counsel during the plea negotiations. Thus, this claim lacks merit.

B. Ineffective Assistance During Sentencing.

1. Sentencing Enhancements.

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Hall is procedurally barred from collaterally attacking his sentence since the 

collateral attack waiver in Hall’s plea agreement is valid. Judge Granade specifically 

questioned Hall about the waiver portion of the plea agreement when she questioned 

him during the change-of-plea hearing. Hall confirmed for her and convinced her that he 

had knowingly, intelligently and voluntarily entered into a waiver of his right to seek 

collateral relief except in two instances: if the sentence imposed was in excess of the 

statutory maximum or would constitute an upward departure or variance from the 

sentencing guideline range. Since neither of those situations applies, his habeas petition 

on this claim is barred and he has failed to establish any reason to excuse the bar.

In addition to being foreclosed by the collateral attack waiver in his plea 

agreement, Hall’s ineffective assistance of counsel claim during the sentencing phase is 

without merit as well. Hall alleges that his retained counsel was ineffective during the 

sentencing phase “for failing to object to the sentence enhancements imposed pursuant 

to U.S.S.G. § 2K2.1(b)(1)(B) and § 2K2.1(b)(6).” (Doc. 39, at 5.) As addressed in more 

detail above, in order for Hall to establish a claim of ineffective assistance of counsel, he 

must prove (1) that his attorney’s representation fell below “an objective standard of

reasonableness”18 and (2) that a reasonable probability exists that but for counsel’s 

unprofessional conduct, the result of the proceeding would have been different.”19

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The Strickland standard for evaluating claims 

 18 In order to establish that the attorney’s performance was “deficient,” the petitioner must 

be able to show “that counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, supra, 466 U.S. at 687, 

104 S.Ct. at 2064.

19 This prong requires the defendant to establish that “counsel’s constitutionally ineffective 

performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. at 370. Thus, 

a petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.” Id. (footnote omitted). 

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of ineffective assistance of counsel was held applicable to the entry of guilty pleas in Hill 

v. Lockhart, 474 U.S. at 58, 106 S.Ct. at 370. 

Additionally, as explained above, in considering the framework established by 

Strickland, courts “must avoid second-guessing counsel's performance[,]” must avoid 

“using ‘the distorting effects of hindsight,’ and must evaluate the reasonableness of 

counsel's performance ‘from counsel's perspective at the time.’“ Chandler, supra, 218 F.3d 

at 1314 & 1316 (citation omitted). Further, “[c]ourts must ‘indulge [the] strong 

presumption’ that counsel's performance was reasonable and that counsel ‘made all 

significant decisions in the exercise of reasonable professional judgment.’“ Id. at 1314 

(citations omitted). Therefore, “counsel cannot be adjudged incompetent for performing 

in a particular way in a case, as long as the approach taken ‘might be considered sound 

trial strategy.’” Id. (citation omitted).

There are numerous reasons why this Court cannot find that the strategy pursued 

by Hall’s attorney was one that no other competent counsel would have pursued. 

Counsel knew that the residence in which the guns outlined in count one of the 

indictment were found, Hall’s sister’s home, was a residence Hall was very familiar with 

and was known to spend a substantial amount of time. (See Doc. 15, Factual Resume, at 

15.) Harper also knew many other things, including the following: (1) that Hall was 

observed by the arresting officers leaving the room in his sister’s residence where all 11 

firearms were discovered and, indeed, he admitted that his fingerprints would be found 

on 4 of the 11 guns seized from the room where he stayed (see id.); (2) that Hall admitted

the police seized 11 guns from this room; (3) that during Hall’s arrest, the police also 

found and charged Hall with felony possession of a controlled substance (Doc. 20, at 6, 

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14; Doc. 47, Ex. A); (4) that a violation of § 922(g)(1) can be established through evidence 

of constructive possession;20 (5) that the worksheets provided by the probation office 

during the conference with Hall and Harper prior to the signing of the plea agreement 

 20 Here, Hall admitted that his fingerprints would be on 4 of the 11 firearms that 

were found in the room where he stayed. (Doc. 15, at 15.) The officers saw him exit this room 

when they entered the premise. (Id.) All 11 firearms seized were found in that room. (Id.) Thus, 

the government could establish by a preponderance of the evidence that Hall was either in actual 

possession or constructive possession of all 11 firearms at the time of his arrest (id.). Compare, e.g., 

United States v. Johnson, 450 Fed.Appx. 878, 885 (11th Cir. Jan. 9, 2012) (“Possession can be actual 

or constructive, and the government can prove possession through direct or circumstantial 

evidence. Constructive possession exists when a defendant has knowledge of the item possessed 

coupled with the ability to exert control over it or over the premises . . . in which the contraband 

was concealed.” (internal citations omitted)) and United States v. Perez, 661 F.3d 568, 576 (11th 

Cir. 2011) (“Possession of a firearm may be either actual or constructive. Constructive possession 

of a firearm exists when a defendant does not have actual possession but instead knowingly has 

the power or right, and intention to exercise dominion and control over the firearm. A 

defendant’s presence in the vicinity of a firearm or mere association with another who possesses 

that gun is insufficient; however, at the same time, the firearm need not be on or near the 

defendant’s person in order to amount to knowing possession. As long as the Government 

proves, through either direct or circumstantial evidence that the defendant (1) was aware or 

knew of the firearm’s presence and (2) had the ability and intent to later exercise dominion and 

control over that firearm, the defendant’s constructive possession of that firearm is shown.” 

(internal citations, quotation marks and brackets omitted)) with United States v. Molina, 443 F.3d 

824, 830 (11th Cir. 2006) (concluding that sufficient evidence existed to support conviction for 

possessing a firearm in furtherance of a drug trafficking crime where the gun was accessible and 

was in close proximity to drugs, digital scales, and a large amount of money); see United States v. 

Wright, 392 F.3d 1269, 1273, 1273-1274 & 1274 (11th Cir. 2004) (“The government need not prove 

actual possession in order to fulfill the ‘knowing’ requirement of § 922(g)(1). Rather, it may be 

shown through constructive possession. The firearm need not be on or near the defendant’s 

person in order to amount to knowing possession. Moreover, we have held . . . [] a defendant 

had knowing possession of a firearm when driving a car with the weapon beneath the driver’s 

seat. In the instant case, a reasonable jury could believe beyond a reasonable doubt that Wright 

was in knowing possession of the firearm. Possession can be shown by circumstantial as well as 

direct evidence. Possession can be either actual or constructive. In order to establish constructive 

possession, the government must produce evidence showing ownership, dominion, or control 

over the contraband itself . . . or the vehicle in which contraband is concealed. There is no 

dispute that there was a weapon in the vehicle. Officers found the firearm under Wright’s seat, 

next to an open bottle of cold beer. Wright owned the automobile in which the firearm was 

carried. Wright had been operating the car when the officers pulled him over. Evidence showed 

Wright was driving under the influence and once officers attempted to arrest him, Wright 

aggressively resisted, which could indicate that Wright only resisted after he realized officers 

would impound the car and discover the gun. . . . The fact that Wright’s father testified that the 

gun belonged to him and that he accidently left it in his son’s vehicle does not detract from the 

evidence.” (internal citations and quotation marks omitted; emphasis supplied)), cert. denied, 544 

U.S. 968, 125 S.Ct. 1751, 161 L.Ed.2d 615 (2005).

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31

contained enhancements under § 2.K2.1(b)(1)(B) and § 2K2.1(b)(6) (see Doc. 11, at 2 

(specifically, the worksheet states that the § 2.K2.1(b)(1)(B) enhancement is for a “total 

of[] 11 firearms” and the § 2K2.1(b)(6) enhancement is for “possession of the firearms 

during another felony offense (possession of drugs)); and (6) that the Government was 

willing to seek the low end of the sentencing guidelines in exchange for Hall’s agreement 

to enter a plea (see Doc. 28 (Sentencing Hearing)).

It is fair to infer that Harper was not certain at the time that he advised his client 

to sign the plea agreement that the base level would increase. (Compare Doc. 11, at 2 with

Doc. 20, at 6.) The change in the base level from a 14 to a 20 was the result of correctly 

applying “U.S.S.G. § 2K2.1(a)(4)(A), which states that if the defendant committed any 

part of the instant offense subsequent to sustaining one felony conviction of either a 

crime of violence or a controlled substance offense, the base offense level is 20.” (Doc. 

20, at 6.) If Harper made a mistake in confirming the appropriate Base Offense Level, it 

was in failing to ensure that the guideline range calculated during the Probation Office 

Conference was correct. Even so, both Harper and Hall knew at the time the plea 

agreement was signed that the calculations discussed during the probation conference 

were not final numbers and, based on a complete review of all relevant sentencing 

information, could increase. (Doc. 40 (plea colloquy), at 9-11.) At the time that the Court 

gave this warning, no one knew with any certainty what the sentencing range would be. 

Nonetheless, Hall argues that Harper should have known to object to the imposition of 

the enhancements found in §§ 2K2.1(b)(1)(B) and 2K2.1(b)(6), a clear misunderstanding 

of the reason for his increased sentence.

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Upon receipt of the Presentence Report, Harper contacted the probation office to 

get an explanation for the increase in the recommendation. (Doc. 28, Sentencing Hearing, 

at 2-4.) Harper was made aware at this time that probation had made an error in the 

configuration of Hall’s initial sentencing exposure. (Id.) The presentence investigative 

report increased Hall’s base level from 14 to 20, thus increasing Hall’s sentencing 

exposure. (Doc. 20, at 6.) Rather than objecting to the corrected calculations or seeking to 

withdraw the plea, Harper filed a notice with this Court stating that Hall had no 

objections to the presentence investigation report as filed. (Doc. 18.) In addition, Hall 

does not allege that he ever asked Harper to file any objection to this report. (See Docs. 

39, 48, 50, 51 & 58.) 

Upon review of Hall’s criminal history, it is clear that even if Harper had objected 

to the increase in Hall’s base level from 14 to 20, based on Hall’s prior conviction for

first-degree possession of marijuana in the Mobile County Circuit Court, Harper would 

not have been successful.

21 Further, Hall never alleges nor addresses this increase in the 

base level as an explanation for the increase in the sentencing recommendation. Instead, 

Hall simply alleges that Harper’s failure to object to the § 2K2.1(b)(1)(B) and § 

2K2.1(b)(6) enhancements should rise to the level of ineffective assistance of counsel.22

 21 Subsection (a)(4)(a) provides for an increase in the base level from 14 to 20 if “the 

defendant committed any part of the instant offense subsequent to sustaining one felony 

conviction of either a crime of violence or a controlled substance offense.” §2K2.1(a)(4). 

Commentary note 10 to §2K2.1 states that “[f]or the purpose of applying subsection (a)(4)(a), use 

only those felony convictions that receive criminal history points under §4A1.1(a).” U.S.S.G. 

2K2.1, n 10. According to Hall’s presentence investigation report, on September 1, 1999 Hall was 

convicted of the first-degree possession of marijuana in the Mobile County Circuit Court. (Doc. 

20, at 10.) This conviction received a §4A1.1(a) point valuation. (Id.) Therefore, the increase in 

Hall’s base level was done in accordance with the sentencing guidelines.

22 Hall’s conclusory argument that

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33

As the enhancements were not responsible for the increase in the original numbers 

provided to Hall during the plea negotiations, any alleged failure of Harper to object to 

their use would not have affected the outcome of Hall’s sentencing. Therefore, Hall 

cannot establish that he was by prejudiced by Harper’s decision to not make any formal 

objections to the use of the enhancements. Thus, this claim also lacks merit.

To the extent Hall argues that Harper should have objected to the applicability of 

sentencing enhancements, such an argument is frivolous since the imposition of the 

sentencing enhancements was clearly appropriate. “The government bears the burden of 

 [T]he only difference between counsel’s estimate of the likely sentence, 77-96 

months, and the Court’s ultimate determination, 110-137 months, was the 

enhancements applicable to Hall’s case. The enhancements were readily 

discoverable by counsel Harper and competent counsel under prevailing 

professional norms would have researched and been accurately abreast of the 

legal precedents and Sentencing Guidelines in informing a defendant of the 

likely sentencing exposure

is flawed. (Doc. 48, at 4.) As discussed, the enhancements are not responsible for increasing

Hall’s sentencing exposure: it was the increase in the base level that resulted in the increased 

sentence. Both enhancements were accounted for and brought to Hall’s attention at the initial 

conference with probation. (Doc. 11, at 2.) Further, Hall actually received a reduction on his 

presentence investigation report as it relates to the § 2K2.1(b)(6) enhancement. (Compare Doc. 11, 

at 2 (listing an increase 6 points) with Doc. 20, at 6 (listing an increase of only 4 points).) 

Therefore, this argument is clearly flawed and without merit. See Patterson v. United States, 2011 

WL 6090249, at *2 (N.D. Tex. Nov. 16, 2011) (“Petitioner claims that counsel allowed him to enter 

into a coerced guilty plea. However, Petitioner fails to cite any facts that show how his plea was 

coerced. Conclusory allegations are insufficient to prove claims of ineffective assistance of 

counsel. Prisoners challenging their guilty pleas on collateral review must overcome a strong 

presumption of verity accorded solemn declarations made in open court. Prisoners must also 

overcome the presumption of regularity and great weight accorded court documents.” (internal 

citations and quotation marks omitted)), report and recommendation adopted, 2011 WL 6219567 

(N.D. Tex. Dec. 7, 2011); McAffee v. United States, 2006 WL 3747329, at *3 (M.D. Fla. Dec. 18, 2006) 

(“Given the strong presumption of verity accorded Petitioner's sworn statements during his plea 

hearing, his conclusory allegation of ineffective assistance of counsel, unsupported by specifics, 

is subject to summary dismissal, as are his contentions that are wholly incredible in the face of 

the record. Accordingly, given Petitioner’s sworn statements during the plea colloquy and in his 

plea agreement that he was pleading guilty freely and voluntarily without threats, force, 

intimidation, or coercion of any kind, Petitioner’s allegations that his attorney influenced him to 

agree to the appeal waiver are refuted by the record. His claim of ineffective assistance is 

without merit.” (internal citations, quotation marks, and ellipses omitted)); cf. United States v. 

Torres, 129 F.3d 710, 715 (2nd Cir. 1997) (“A defendant’s bald statements that simply contradict 

what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea.”).

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34

establishing by a preponderance of the evidence the facts necessary to support a 

sentencing enhancement[.]” United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir.2006) 

(per curiam). “Although not as rigorous as the reasonable doubt or clear and convincing 

standards, the preponderance standard is not toothless. It is the district court's duty to 

ensure that the Government carries this burden by presenting reliable and specific 

evidence.” United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995).

a. § 2K2.1(b)(1)(B) Enhancement 

Under the sentencing guidelines, 4 points shall be added to a defendant’s total 

offense level if the underlying offense involved 8 to 24 firearms. U.S.S.G. § 

2K2.1(b)(1)(B). Based on the evidence provided, the Government could successfully 

prove by a preponderance of the evidence that Hall was in possession of 11 firearms at 

the time of his arrest allowing for the § 2K2.1(b)(1)(B) enhancement. (See, Doc. 15, at 14-

15; see also, Footnote 14 outlining the applicable law regarding the possession, both 

actual and constructive, of a firearm.) Thus, this claim lacks merit.

 b. § 2K2.1(b)(6) Enhancement

Hall additionally alleges that Harper should have objected to the use of the 

§2K2.1(b)(6) enhancement. Under the guidelines, if the defendant “used or possessed 

any firearm or ammunition in connection with another felony offense” the total offense 

level shall be “increase[d] by 4 levels.” U.S.S.G. § 2K2.1(b)(6). Based on Hall’s additional 

State case where he was charged with felony possession of a controlled substance and 

Hall’s admission that he was aware there was a controlled substance found at the time of 

his arrest and that it constitutes a felony, the Government clearly had the ability to prove 

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35

by a preponderance of the evidence that Hall possessed firearms in connection with23

another felony offense allowing the § 2K2.1(b)(6) enhancement. (Doc. 48, at 9 (“Hall 

acknowledges the fact that he was charged with a felony as the Government advances.”); 

see also, Doc. 20, at 6, 14; Doc. 47 Ex. A (copy of Mobile County, Alabama case file 

charging Hall with Possession of a Controlled Substance in violation of Ala. Code 13A-

 23 Hall alleges that the Court should construe the term “in connection with” to imply that 

the firearms were used to facilitate the additional felony compared with a literal interpretation—

namely that the additional felony was discovered at the same time as the underlying offense.

(Doc. 48, 9.) However, the Eleventh Circuit has made it clear that “[s]o long as the weapon's 

presence is not attributable only to accident or mere coincidence, a section [2K2.1(b)(6)] 

enhancement is warranted under Rhind [v. United States, 289 F.3d 690 (11th Cir. 2002)] if the 

firearm is available during the commission of the underlying offense. United States v. Cabezas, 223 

Fed. Appx. 944, 945 (11th Cir. May 9, 2007) (unpublished). Further, the Eleventh Circuit 

expressly rejected the “facilitation” standard in Rhind. Cabezas, 223 Fed. Appx. at 945; see also, 

Rhind, 289 F.3d at 695 (relying on prior precedent from other sections of the sentencing 

guidelines, the Eleventh Circuit “determined that the meaning of the phrase ‘in connection with,’ 

contained within [] section [2K2.1(b)(6)], ‘merely reflects the context of [the defendant's] 

possession of the firearm.’” (internal citations omitted)). Nonetheless, Hall argues that per 

Comment 14 to the sentencing guidelines, as amended since Rhind but not since Cabezas, “in 

connection with for the purposes of subsection (b)(6)(B) [applies] if the firearm or ammunition 

facilitated, or had the potential of facilitating, another felony offense,” such that this Court must 

use the higher facilitation standard. (Doc. 48, at 9-13). Although Hall’s argument may be 

supported to a degree in United States v. Osborne, 590 F. Supp. 2d 1330, 1334, 1334-1336 & 1336

(M.D. Ala. 2008) (“[C]omment note 14 lays out two different interpretations for the phrase ‘in 

connection with’ as used in § 2K2.1(b)(6): If the underlying felony offense is a drug-trafficking

offense, then the interpretation offered in 14(B)(ii) applies and the government need only show 

that the gun was in ‘close proximity’ to the drugs; if the underlying offense is any other crime, 

such as a drug-possession offense, then the interpretation offered in 14(A) applies and the 

government must show that the weapon ‘facilitated’ the offense. Thus, the court must first 

determine a threshold question: Was Osborne engaged in drug trafficking or simply drug 

possession?” In answering this question, the district court found that the defendant’s possession 

of 10 ecstasy pills was not enough to establish that he was a drug trafficker, thus requiring the 

higher standard of facilitation in order to allow the § 2K2.1(b)(6) enhancement. Relying on this 

higher burden, the Court concluded “that [the defendant] did not carry the weapon to embolden 

himself, or to protect the ecstasy, or ‘in connection with’ the ecstasy in any other way; rather, he 

carried the ecstasy and the weapon at the same time as a ‘result of accident or coincidence.’”), the 

Eleventh Circuit continues to reject such a restrictive interpretation, United States v. Jones, 486 

Fed. Appx. 104, 107 (11th Cir. Aug. 8, 2012) (finding that although “in connection with” means 

“’if the firearm or ammunition facilitated, or had the potential of facilitating, another felony 

offense[,]’” under the sentencing guidelines, the Eleventh Circuit has “consistently adopted an 

expansive interpretation of the phrase ‘in connection with.’” (quoting United States v. Matos–

Rodriguez, 188 F.3d 1300, 1308–09 (11th Cir.1999)). Therefore, the Court is bound to accept the 

Eleventh Circuit’s expansive interpretation of “in connection with,” such that mere possession, 

so long as not accidental or coincidental, is enough.

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36

012-212, a felony under Alabama law.) Therefore, Hall cannot show that Harper’s 

decision to not formally object to the use of this enhancement was defective or 

prejudicial trial strategy during sentencing. Thus, this claim also lacks merit.

2. Additional Considerations.

It is also important to note that Harper did bring to the Court’s attention the 

misinformation that he received during negotiations and asked the Court to consider the 

actual facts of this case compared to the cold record the Court had before it. (See, Doc. 28 

(Sentencing Transcript).) Further, Hall was given several opportunities to object to the 

use of the enhancements or to argue that his counsel was ineffective during sentencing. 

(Id.) Also, it is Hall’s only contention that “the 3-year difference at the time of sentencing 

was the complete result of the enhancements,” which the Court has found to be an 

erroneous assertion. (See, Doc. 48, at 5) (emphasis added). 

As a matter of strategy, it is clear that Harper, recognizing that he did not have 

valid objections to the sentencing calculations contained in the presentence report, 

attempted to convince Judge Granade that a downward departure was appropriate 

under the circumstances. This appears to have been sound strategy since the erroneous 

calculation of the guideline range in this case does not constitute deficient performance 

of counsel. Cf. United States v. Bradley, 905 F.2d 359, 360 (11th Cir. 1990) (“To the extent

that [the defendant] claimed his guilty plea was based on his attorney's estimate of the 

sentence and offense level, the claim did not warrant withdrawal of the guilty plea 

where [the defendant] acknowledged to the court that he understood the possible

maximum sentence for his crime to be greater than the sentence the court ultimately 

imposed.”). Additionally, when a defendant is informed of the correct sentencing range 

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37

by the court during the plea colloquy, there is no prejudice to the defendant when his 

attorney has miscalculated and misinformed him of the forecasted sentencing range. See 

e.g., Cruz v. United States, 188 Fed.Appx. 908, 914 (11th Cir. Jul. 11, 2006), cert. denied, 549 

U.S. 1064, 127 S.Ct. 690, 166 L.Ed.2d 535 (2006). Thus, Hall cannot establish either that 

Harper was deficient in his representation or that Hall was prejudiced by Harper’s 

actions. 

3. The Court’s Application of the Sentencing Enhancements. 

To the extent Hall also challenges the Court’s consideration of the sentencing 

enhancements claiming that it was plain error for the Court to do so, his argument must 

fail. While the undersigned is of the opinion that this claim is procedurally barred from 

review based on Hall’s failure to challenge these alleged errors on appeal,

24 as explained 

hereinafter this claim also lacks substantive merit. 25

 24 “A defendant who fails to object at the trial court level to error he believes the court has 

committed or fails to raise such objection on appeal is procedurally barred from presenting his 

objection in a motion subsequently filed under 28 U.S.C. § 2255 absent a showing of cause and 

prejudice or a fundamental miscarriage of justice,” Genge v. United States, 279 Fed. Appx. 897, 898 

(11th Cir. May 30, 2008) (per curiam) (citing United States v. Frady, 456 U.S. 152, 166-68, 102 S.Ct. 

1584, 1593-94, 71 L.Ed.2d 816 (1982); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994)). 

Moreover, 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, 2010 WL 1006257, *4 (S.D. Ga. Jan. 

26, 2010) (citation omitted; emphasis added), report and recommendation adopted, 2010 WL 1006253 

(S.D. Ga. Mar. 17, 2010). As explained at length in this recommendation, Hall has failed to make 

a meritorious substantive claim for ineffective assistance of counsel. Further, Hall has not argued 

that counsel was ineffective in failing to appeal nor has Hall ever argued that he requested 

Harper to file an appeal. (See Docs. 39, 48, 50, 51 & 58.) Accordingly, Hall has defaulted on these

grounds challenging the Court’s findings on February 15, 2012.

25 Additionally Hall argues that he is not procedurally barred from raising this issue on 

appeal because the waiver clause, if valid, in his plea agreement specifically provides an 

exception for an appeal of this nature. (Doc. 39, at 16.) Hall is correct that his plea agreement 

contains an exceptions clause, however he confuses the distinction between a direct appeal with 

a post-judgment collateral attack on the constitutionality of his sentence. The clause states:

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38

During the sentencing hearing, Hall’s counsel was asked whether he had gone 

over the presentence report with Hall. (Doc. 28, at 2.) Hall’s counsel responded in the 

affirmative. (Id.) The Court then asked Harper whether there were any objections to the 

report. (Id.) Harper responded that there were not any objections. (Id.) The Court then 

stated that it found “that the total offense level in [Hall’s] case [was] a 25 with a criminal 

history category of VI. Are there any objections to those findings?” (Id.) Harper 

responded that there were not. (Id.) During this entire exchange, Hall stood next to 

Harper with the right and ability to speak in his own defense at any time; however Hall 

did not say anything. (Id.) Later in the hearing, the Court specifically asked Hall whether 

he had anything he would like to say to the Court. (Id. at 5.) Hall did not mention 

anything about the sentencing enhancements or ineffective assistance of counsel that he 

now alleges. (Id. at 6.) 

Hall has never articulated how the Court erred in considering the enhancements, 

only that the mere fact that the enhancements were before the Court should be enough 

to constitute an error. Without any objections to the application of the sentencing 

enhancements, Hall cannot claim that it was error for the Court to consider the facts that 

it was presented with, namely the information contained in the presentence 

 a. EXCEPTIONS. The defendant reserves the right to timely file a direct appeal 

challenging:

(1) Any sentence imposed in excess of the statutory maximum;

(2) Any sentence which constitutes an upward departure or variance from 

the advisory guideline range.

(Doc. 15, at 11.) Per the express terms of the clause, Hall had a procedural right to a direct 

appeal, if filed within 14 days of sentencing, to challenge “any sentence which constitutes an 

upward departure or variance from the advisory guideline range.” (Id.) However, a Motion to 

Alter, Amend, or Vacate under § 2255, the statute under which Hall brings this claim, is not a 

direct appeal, but rather a collateral attack on Hall’s sentence. 28 U.S.C. § 2255 Thus, Hall is 

foreclosed from arguing that the clause in his plea agreement applies to this action.

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39

investigation report. Thus, this claim is nothing more than a restatement of Hall’s 

ineffective assistance of counsel claim explained in detailed above. The applicability of 

the sentencing enhancements was proper and, therefore, Harper’s failure to object to 

Judge Granade considering them during the sentencing hearing could never establish 

deficient representation. 

C. Alleyne Claim

Lastly, Hall asks this Court to apply the Supreme Court’s recent decision in 

Alleyne v. United States, 133 St. Ct. 2151, 186 L.Ed.2d 314 (2013), to his case. In Alleyne, the 

Supreme Court held that any fact that increases the statutory minimum sentence for a

crime is an “element” of the offense, not a “sentencing factor,” that must be submitted to 

jury and proven beyond a reasonable doubt. Id. at 2164. However, Hall was sentenced 

prior to the applicability of Alleyne. Additionally, the matter before the undersigned is a 

collateral attack on Hall’s conviction and sentence, not a direct appeal. Therefore, Alleyne

does not apply to Hall’s present action. Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285-

86 (11th Cir. 2014).

D. Evidentiary Hearing.

There is no need for a hearing in this matter because Hall has failed to proffer 

“credible and specific evidence entitling him to relief.” United States v. Salmoran-Calderon, 

2012 WL 6827478, *20 (N.D. Fla. Nov. 27, 2012) (citations omitted; emphasis supplied), 

report and recommendation adopted, 2013 WL 132481 (N.D. Fla. Jan. 10, 2013). In other 

words, petitioner is not entitled to an evidentiary hearing in this case because his 

allegations are either frivolous, affirmatively contradicted by the record, or, otherwise, 

even taking the facts he states as true, same would not entitle him to relief. Aron v. United 

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40

States, 291 F.3d 708, 714-715 (11th Cir. 2002) (“[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.’ . . . Although we have stated that a 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, no such 

circumstances are present here.” (internal citations omitted)); see also United States v. 

Bejacmar, 217 Fed.Appx. 919, 921 (11th Cir. Feb. 15, 2007) (“[I]f the petitioner’s allegations 

are affirmatively contradicted by the record, or the claims are patently frivolous, a 

district court is not required to hold an evidentiary hearing.”); see Tejada v. Dugger, 941 

F.2d 1551, 1559 (11th Cir. 1991) (“A petitioner is not entitled to an evidentiary hearing . . . 

when his claims are merely conclusory allegations unsupported by specifics or 

contentions that in the face of the record are wholly incredible.” (internal quotation 

marks omitted)), cert. denied sub nom. Tejada v. Singletary, 502 U.S. 1105, 112 S.Ct. 1199, 

117 L.Ed.2d 439 (1992); cf. Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir.) (“Because 

the 1999 affidavits submitted by Lynn amount to nothing more than mere conclusory 

allegations, the district court was not required to hold an evidentiary hearing on the 

issues and correctly denied Lynn’s § 2255 motion.”), cert. denied, 543 U.S. 891, 125 S.Ct. 

167, 160 L.Ed.2d 154 (2004).

V. CERTIFICATE OF APPEALABILITY

In consideration of the foregoing, the Magistrate Judge recommends that the 

Court deny Hall’s motion to vacate, set aside or correct his sentence under 28 U.S.C. §

2255. Moreover, 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 

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41

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 may issue only where 

“the applicant has made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2243(c)(2). 

Because all the ineffective-assistance-of-counsel claims are procedurally barred,26

Hall is not entitled to a certificate of appealability on those claims. Where, as in the case 

of the ineffective-assistance-of-counsel claims presented here, 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 habeas 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, 1604, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 

322, 336 (2003) (“Under the controlling standard, a petitioner must ‘sho[w] that 

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

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

were “adequate to deserve encouragement to proceed further.”’”). 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 

 26 As heretofore explained, even if these claims were considered on the merits, Hall’s 

position would not prevail. 

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

further on these 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 habeas

petition or that the petitioner should be allowed to proceed further.”).

To the extent the merits of Hall’s claims of ineffective assistance of counsel have 

been reviewed, he is not entitled to a certificate of appealability on his claims. Where a 

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

claim, a COA should issue only when Hall demonstrates “that reasonable jurists would 

find the district court’s assessment of the constitutional claims debatable or wrong[,]” 

Slack, 529 U.S. at 484; 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, includes showing that reasonable jurists could 

debate whether (or, for that matter, agree that) the habeas petition should have been 

resolved in a different manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’”). With respect to Hall’s ineffective-assistance-ofcounsel 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 are adequate to deserve 

encouragement to proceed further. Accordingly, petitioner is not entitled to a certificate 

of appealability as to these claims.

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 

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objection to this recommendation by either party, that party may bring this argument to 

the attention of the district judge in the objections permitted to this report and 

recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit 

order denying petitioner’s motions for a COA and to appeal IFP in a case in which this 

Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 

3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report and 

recommendation adopted, 2011 WL 3241580 (S.D. Ala. July 29, 2011); Griffin v. DeRosa, 2010 

WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and

recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 

2010). 

CONCLUSION

The petitioner’s rights were not violated in this cause and his request to vacate, 

set aside or correct his sentence (Doc. 39), should be DENIED. Petitioner is not entitled 

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

pauperis.

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. The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review to plain error review of the 

magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) 

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(emphasis in original). 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 the 22nd day of October, 2014.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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