IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JEREMIAH HALE, :

Petitioner, :

vs. : CIVIL ACTION NO. 09-0494-WS-C

UNITED STATES OF : CRIMINAL ACTION NO. 07-0385-WS

AMERICA, 

:

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Jeremiah Hale, a federal prison inmate, has filed a motion to vacate, set

aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 70; see also Doc. 71). 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, as well as the testimony given at the April 13, 2010 evidentiary hearing, it is

recommended that Hale’s § 2255 motion be denied and that it be found he is not entitled to

a certificate of appealability. 

FINDINGS OF FACT

1. Hale was arrested by DEA agents on October 25, 2007. (Compare Docket

Sheet Entry for October 25, 2007 with Doc. 1, Attached Affidavit, at 3) One day later, on

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1 A forfeiture count was also asserted against Hale. (Id., Count Three)

2 That same date, the government filed enhancement information. (See Doc. 35

(“[P]ursuant to 21 U.S.C. § 851(a), [the United States] files this information setting forth facts

concerning previous convictions of this defendant for felony drug offenses, which expose

defendant JEREMIAH HALE to increased punishment if convicted of Counts One and Two in

the indictment herein: 1. On or about January 13, 1998, defendant JEREMIAH HALE was

convicted of felony unlawful possession of a controlled substance (cocaine) in the Circuit Court

of Mobile County, Alabama, Case Number CC-97-3322. 2. The conviction is ‘final’ within the

meaning of 21 U.S.C. §§ 841(b) and 962(b).”)) It is clear, however, that January 24, 2008 was

not the first date upon which Hale became aware that he was facing a mandatory minimum

sentence of 20 years to life imprisonment due to his prior drug conviction. Rather, at the

continuation of his preliminary examination and detention hearing on November 1, 2007, a

proceeding which Hale attended, petitioner’s attorney not only mentioned in open court that his

client had a 10-year-old felony conviction but, as well, Assistant United States Attorney Sean

Costello specifically stated that Hale’s previous drug felony exposed him under § 851 to a

mandatory minimum statutory sentence of 20 years to life imprisonment. (See Docket Sheet

Entry for November 1, 2007 (minute entry for proceedings held before the undersigned)) The

undersigned’s November 14, 2007 order of detention memorialized Hale’s criminal history.

(Doc. 11, at 2 n.1 (“Hale’s criminal history includes a 1998 felony conviction for possession of

cocaine.”)) Moreover, at the Probation Office Conference on December 18, 2007, which Hale

attended (Doc. 25, at 1), the parties discussed the fact that petitioner had one criminal history

2

October 26, 2007, Hale was charged, by criminal complaint, with attempting to possess with

intent to distribute powder cocaine on October 25, 2007, in violation of 21 U.S.C. §

841(a)(1). (Doc. 1) On November 27, 2007, a three-count indictment charged Hale with

conspiracy to attempt to possess with intent to distribute more than 5 kilograms of cocaine,

from August of 2004 through October 25, 2007, in violation of 21 U.S.C. § 846, and

attempting to possess with intent to distribute approximately 30 kilograms of cocaine on

October 25, 2007, in violation of 21 U.S.C. § 841(a)(1). (Doc. 12)1

2. On January 24, 2008, the parties filed a plea agreement and factual resume with

the Court. (Doc. 37)2

 The plea agreement reads, in relevant part, as follows:

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point because of a prior offense of possession of a controlled substance (id. at 4) and, further,

that petitioner was facing a statutory mandatory minimum sentence of 20 years to life

imprisonment (id. at 6). 

3

PLEA AGREEMENT

The defendant, JEREMIAH HALE, represented by his counsel, and the

United States of America have reached a Plea Agreement in this case, pursuant

to Rule 11 of the Federal Rules of Criminal Procedure, the terms and

conditions of which are as follows:

RIGHTS OF THE DEFENDANT

1. The defendant understands his/her rights as follows:

1. To be represented by an attorney;

2. To plead not guilty;

3. To have a trial by an impartial jury;

4. To confront and cross-examine witnesses and to call

witnesses and produce other evidence in his/her defense;

5. To not be compelled to incriminate himself/herself.

WAIVER OF RIGHTS AND PLEA OF GUILTY

2. The defendant waives rights b through e (sic), listed above, and

pleads guilty to Count 1 of the Indictment, charging a violation of Title 21

United States Code, Section 846, Conspiracy to possess with intent to

distribute powder cocaine.

...

4. The defendant expects the Court to rely upon his/her statements

here and his/her response to any questions that he/she may be asked during the

guilty plea hearing.

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5. The defendant is not under the influence of alcohol, drugs, or

narcotics. He/She is certain that he/she is in full possession of his/her senses

and mentally competent to understand this Plea Agreement and the guilty plea

hearing which will follow.

6. The defendant has had the benefit of legal counsel in negotiating

this Plea Agreement. He/She has discussed the facts of the case with his/her

attorney, and h[is]/her attorney has explained to the defendant the essential

legal elements of the criminal charge(s) which has/have been brought against

him/her. The defendant’s attorney has also explained to the defendant his/her

understanding of the United States’ evidence.

7. The defendant understands that the United States has the burden

of proving each of the legal elements of the criminal charge(s) beyond a

reasonable doubt. The defendant and his/her counsel have discussed possible

defenses to the charge(s). The defendant believes that his/her attorney has

represented him/her faithfully, skillfully, and diligently, and he/she is

completely satisfied with the legal advice of his/her attorney.

8. A separate document, entitled Factual Resume, will be submitted

to the Court as evidence at the guilty plea hearing. The Factual Resume is

incorporated by reference into this Plea Agreement. The defendant and the

United States agree that the Factual Resume is true and correct. 

9. This plea of guilty is freely and voluntarily made and is not the

result of force, threats, promises, or representations apart from those set forth

in this Plea Agreement. There have been no promises from anyone as to the

particular sentence that the Court may impose. The defendant avers that he/she

is pleading guilty because he/she knows that he/she is guilty.

PENALTY

10. The maximum penalty the Court could impose as to Count 1 of

the Indictment is:

1. Imprisonment for a period of 20 yrs to life;

2. A fine not to exceed $8,000,000;

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3. A term of supervised release of 5 years, which would

follow any term of imprisonment. If the defendant violates the conditions of

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

supervised release;

4. A mandatory special assessment of $100.00; and

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

SENTENCING

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

States Sentencing Guidelines apply in an advisory manner to this case. The

defendant has reviewed the application of the Guidelines with his/her 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/she will not be allowed to withdraw his/her guilty plea if

the applicable guideline range is higher than expected, if the Court departs

from the applicable advisory guideline range, or if the Court imposes a

sentence notwithstanding the Guidelines.

12. The United States may provide all relevant sentencing

information to the Probation Office for purposes of the pre-sentence

investigation. Relevant sentencing information includes, but is not limited to,

all facts and circumstances of this case and information concerning the

defendant’s conduct and background.

13. The defendant understands that this Plea Agreement does not

create any right to be sentenced in accordance with the Sentencing Guidelines,

or below or within any particular guideline range, and fully understands that

determination of the sentencing range or guideline level, or the actual sentence

imposed, is solely the discretion of the Court.

14. Both the defendant and the United States are free to allocute

fully at the time of sentencing.

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...

RESTITUTION

16. The defendant agrees to pay such restitution as may be ordered

by the Court relating to the count of conviction as well as such counts as the

United States intends to dismiss. The amount of restitution owed, shall be

determined by the Court at the time of sentencing.

UNITED STATES’ OBLIGATIONS

17. The United States will not bring any additional charges against

the defendant related to the facts underlying the Indictment and will move to

dismiss Count Two of the Indictment at sentencing. This agreement is limited

to the United States Attorney’s Office for the Southern District of Alabama

and does not bind any other federal, state, or local prosecuting authorities.

18. The United States will recommend to the Court that the

defendant be sentenced to the low end of the guideline range as determined by

the Court.

APPLICATION OF U.S.S.G. § 5K1.1 AND/OR FED.R.CRIM.P. 35

19. If the defendant agrees to cooperate with the United States,

he/she agrees to the following terms and conditions:

...

7. If the defendant provides full, complete and truthful

cooperation to the United States, and if his cooperation results in substantial

assistance to the United States in the investigation or prosecution of another

person who has committed an offense, the United States Attorney’s Office for

the Southern District of Alabama agrees to move for a downward departure

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

Fed.R.Crim.P. The defendant acknowledges that the determination of whether

or not he has provided substantial assistance will be made solely by the United

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States Attorney’s Office for the Southern District of Alabama. If a decision is

made by the United States to move for a downward departure pursuant to §

5K1.1 or to file a Rule 35 motion, the defendant further acknowledges that the

determination regarding the nature and extent of the defendant’s assistance

rests solely with the United States Attorney’s Office for the Southern District

of Alabama.

8. Defendant acknowledges and fully understands that this plea

agreement does not contain a promise by the United States to move for a

§ 5K1.1 downward departure or to file a Rule 35 motion.

9. If the United States moves for a downward departure pursuant

to U.S.S.G. § 5K1.1 or files a Rule 35 motion, the United States will

recommend to the Court that the Court depart from the low end of the

Sentencing Guideline range as determined by the Court. The defendant

acknowledges that the United States can only make a recommendation for

a downward departure to the Court. The Court has the ultimate authority to

determine whether a downward departure should be granted and the

amount of any downward departure. The Court also has the ultimate

authority to deny a recommendation for a downward departure.

10. The United States makes no representations or promises in

this agreement with regard to the exact amount of reduction the United

States may recommend to the Court if the United States determines that

the defendant has provided substantial assistance.

...

LIMITED WAIVER OF RIGHT TO APPEAL SENTENCE

20. The defendant acknowledges that he/she is aware that 18 U.S.C.

§ 3742 affords a defendant the right to appeal the sentence imposed. In

exchange for the recommendations made by the United States in this Plea

Agreement, the defendant knowingly and voluntarily waives the right to appeal

any sentence imposed in this case.

21. With the limited exceptions noted below, the defendant also

waives his/her right to challenge any sentence so imposed, or the manner in

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3 The Factual Resume, which Hale also signed, reads as follows:

The defendant, JEREMIAH HALE, admits the allegations of Count 1 of

the Indictment.

8

which it was determined, in any collateral attack, including but not limited to,

a motion brought under 28 U.S.C. § 2255. Any sentence so imposed includes

any determination or sentence imposed in a supervised release or probation

revocation proceeding.

22. The defendant reserves the right to contest in an appeal or postconviction proceeding any of the following:

a. Any punishment imposed in excess of the statutory

maximum;

b. Any punishment that constitutes an upward departure

from the guideline range; or

c. A claim of ineffective assistance of counsel.

23. In addition, the defendant reserves the right to petition the Court

for resentencing pursuant to 18 U.S.C. § 3582 in the event of a future

retroactive amendment to the Sentencing Guidelines which would affect the

defendant’s sentence.

(Id. at 1-2, 2-4, 4-5, 7-8 & 10 (emphasis in original)) Appearing before Hale’s signature line

on page 12of the agreement is this paragraph: “I have consulted with my counsel and fully

understand all my rights with respect to the offenses(s) 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. I hereby stipulate

that the Factual Resume,3

 incorporated herein, is true and accurate in

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ELEMENTS OF THE OFFENSE

HALE understands that in order to prove a violation of Title 21, United

States Code, Section 846, as charged in Count One of the Indictment, the United

States must prove:

First: That two or more individuals in some way or manner came

to a mutual understanding to commit an unlawful act, in

this case, the possession with intent to distribute cocaine;

Second: The defendant, knowing the unlawful purpose of the plan,

willfully joined in it; and

Third: That the object of the unlawful plan was to possess with

intent to distribute more than 5 kilograms of cocaine, as

charged.

OFFENSE CONDUCT

Defendant, JEREMIAH HALE, admits in open court and under oath that

the following statement is true and correct and constitutes evidence in this case.

This statement of facts is provided solely to assist the Court in determining

whether a factual basis exists for the defendant’s plea of guilty. The statement of

facts does not contain each and every fact known to the defendant and to the

United States concerning the defendant’s involvement in the charges set forth in

the plea agreement.

From on or about August 2004 and continuing through on or about

October 25, 2007, in the Southern District of Alabama, JEREMIAH HALE and

SAMUEL EZELL conspired with each other and with others to possess with

intent to distribute more than 5 kilograms of cocaine.

In September 2006, The Mobile Resident Office of the United States Drug

Enforcement Administration (DEA) received information from the Laredo, Texas

District Office of the DEA that JEREMIAH HALE was involved in a drug

trafficking organization which involved drug trafficking between Mobile,

Alabama and Dallas, Texas.

On September 16, 2006, DEA Special Agents from the Mobile Resident

Office and the Laredo District conducted an undercover operation in Mobile,

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Alabama during which HALE delivered approximately $101,000.00 in U.S.

currency to a DEA Special Agent acting in an undercover capacity. DEA Special

Agents then delivered the U.S. currency to HALE’s source of supply for cocaine

and methamphetamine in Dallas, Texas. Later investigation revealed the source of

supply to be Freddy Paniagua.

On November 11, 2006, HALE delivered approximately $150.000.00 in

U.S. currency to the same DEA Special Agent acting in an undercover capacity.

Again, the money was delivered to Paniagua in Dallas by the undercover DEA

Special Agent. The money sent to Paniagua by HALE was payment for narcotics

supplied by Paniagua to HALE. SAMUEL EZELL drove HALE to at least one

of the two money transfers in his Chevrolet Avalanche.

On March 16, 2007, DEA Special Agents in the Dallas, Texas Division

Office initiated an intercept of the telephone utilized by Paniagua in Dallas.

During the course of the telephone intercept (March 16, 2007–April 14, 2007),

DEA Special Agents intercepted several calls between the target telephone,

utilized by HALE, and his source of supply for cocaine and methamphetamine,

Freddy Paniagua. During the calls, HALE and Paniagua used coded language to

discuss drug amounts and prices.

On July 16, 2007 DEA Special Agents in Dallas, Texas arrested Paniagua

pursuant to a federal arrest warrant issued in the Northern District of Texas. On

July 31, 2007 DES (sic) Special Agent Todd Hixson and IRS Special Agent S.

Craig Underwood conducted an interview with Paniagua in Dallas. Paniagua

provided information regarding the drug trafficking activities of HALE and his

associates. Paniagua estimated that he began supplying HALE with illegal drugs

approximately three or four years before. Paniagua and another individual

provided cocaine to HALE in quantities of between 5 and 20 kilograms at a time.

In addition, Paniagua provided methamphetamine to HALE. On most occasions,

HALE paid for the cocaine in advance. The methamphetamine was typically

“fronted” to HALE. Paniagua estimated that he has sold HALE approximately

100 kilograms of cocaine. On most occasions, HALE would telephone Paniagua

and inform him that he was sending money to purchase cocaine. Paniagua would

then receive a telephone call from Darren Perryman who would bring him the

money. Paniagua would typically receive the money from Perryman at either his

(Paniagua’s) residence or Perryman’s residence. Paniagua typically charged

HALE between $15,000.00 and $16,500.00 per kilogram of cocaine. 

On August 9, 2007, Paniagua, made a consentually (sic) recorded

10

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telephone call to HALE. During the course of the conversation, Paniagua and

HALE discussed the possibility of future drug transactions including drug

amounts and prices. That same day, Paniagua made a consentually (sic) recorded

telephone call to Darren Perryman. Perryman discussed the possibility of future

drug transactions involving HALE and Paniagua. Perryman also told Paniagua

that HALE currently had another source of supply for drugs.

During early October, 2007, HALE and Paniagua had telephone

conversations relating to the fact that Perryman had $140,000 of HALE’s money

and that Perryman would deliver the money to Paniagua in exchange for 7

kilograms of cocaine. On October 12, 2007, Paniagua and Perryman were

scheduled to meet for the purpose of conducting the aforementioned deal wherein

Perryman would provide Paniagua with $140,00 of HALE’s money in exchange

for 7 kilograms of cocaine. While Perryman was on the way to deliver the money

to Paniagua and pick up the cocaine, the Dallas Police Department conducted a

traffic stop of Perryman, and seized the cash, which actually totaled $111,965.

On October 12, 2007, Paniagua and HALE had a telephone conversation

during which HALE requested that Paniagua supply HALE with thirty kilograms

of cocaine at a price of between $19,000 and $20,000 per kilogram. HALE stated

that he had $300,000.00 that he would give to Paniagua as partial payment for the

thirty kilograms of cocaine. Paniagua then told HALE that he would be coming

to the Mobile area in the coming days and would coordinate the drug transaction

at that time.

On October 24, 2007, Paniagua made a consentually (sic) recorded

telephone call to HALE and arranged a meeting between HALE and Paniagua

that afternoon. Also at the meeting was a DEA Task Force Officer acting in an

undercover capacity. At the meeting, final arrangements for the purchase of the

thirty kilograms of cocaine were made, and the parties agreed that HALE would

provide $300,000 the following day as partial payment for the drugs. In addition,

HALE suggested that future drug purchases involving similar amounts of cocaine

could be made on a regular basis. HALE told Paniagua and the undercover

officer that he would collect the money and would be ready to consummate the

deal on the morning of October 25.

On Thursday, October 25, 2007, Paniagua placed a consentually (sic)

monitored phone call to HALE, and HALE agreed to meet to discuss the

transaction with Paniagua and the undercover officer. Paniagua and the

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undercover officer met HALE at a business off of Highway 45 in Eight Mile,

Alabama shortly thereafter. At that meeting, HALE told Paniagua and the

undercover officer that he had $190,000 of the $300,000, and that he still needed

to collect $100,000 from EZELL, whom he called “Pops.” HALE said that he

would have all the money by 2:00 p.m.

Shortly before 2:00 p.m., Paniagua called HALE and they agreed to meet

once again at the same business in Eight Mile. The undercover officer and

Paniagua met HALE at the business. Paniagua met with HALE, and HALE said

that he had collected all of the money, but that he would have to go get it. There

was also a discussion that Paniagua could provide 25 of the 30 kilograms, which

HALE referred to as “my 25 kilos.” HALE left the business in a Black Chevrolet

Avalanche driven by EZELL.

HALE and EZELL returned to the business shortly thereafter driving the

same Chevy Avalanche, and HALE instructed Paniagua to go around to the back

of the business so that HALE could show Paniagua the money. Paniagua did as

HALE instructed, and saw the significant amount of money HALE had collected.

Paniagua told HALE and EZELL to proceed to the Pride truck stop at the

intersection of Highway 45 and Interstate 65 in order to meet with the supposed

driver of the truck with the drugs for HALE and EZELL to pick up.

En route to the truck stop, HALE and EZELL, driving the black

Avalanche, [were] stopped at a gas station near the Pride truck stop. HALE and

EZELL were placed under arrest, and the money they were carrying was seized.

The money seized from HALE and EZELL totaled $280,315.57. A fully loaded,

black, .40 caliber semi-automatic pistol was located in the center console of

EZELL’s vehicle.

At all times HALE acted knowingly and intentionally, and intended that

the cocaine be distributed to other persons after SAMUEL EZELL and HALE

received it.

Defendant and the United States do not have an agreement as to the

quantity of drugs attributable to defendant for sentencing purposes, and each party

reserves the right to present relevant evidence to the Court on this issue at

sentencing.

(Doc. 37, FACTUAL RESUME, at 1-6)

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every respect, and that had the matter proceeded to trial, the United States could have proved

the same beyond a reasonable doubt.” (Id. at 11-12 (emphasis supplied))

3. On January 24, 2008, Hale entered a counseled guilty plea to Count One of the

Indictment. (Doc. 39; see also Doc. 67, Guilty Plea Transcript)

THE COURT: Let me get each of you to raise your right hand and

take an oath, please.

(The Defendants were placed under oath.)

THE COURT: . . . I need to tell each of you that you are now

under oath. If you answer any of my questions falsely, your answers may later

be used against you in another prosecution for perjury or for making a false

statement. Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: . . . Mr. Hale, would you state your true, full name

for the record, please, sir.

DEFENDANT HALE: Jeremiah Hale.

THE COURT: All right. How old are you?

DEFENDANT HALE: 34.

THE COURT: How much education have you completed?

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DEFENDANT HALE: To the 12th grade.

THE COURT: Mr. Hanley, to the best of your knowledge, is Mr.

Hale fully competent to enter a valid plea today?

MR. HANLEY: Yes, sir.

...

THE COURT: All right. Have either of you ever been treated for

any mental illness or addiction to narcotic drugs of any kind? Mr. Hale?

DEFENDANT HALE: No, sir.

...

THE COURT: Are either of you currently under the influence of

any drug or medication or alcoholic beverage of any kind? Mr. Hale?

DEFENDANT HALE: . . . I did in the past.

THE COURT: But right now, are you under the influence of any

drug or medication?

DEFENDANT HALE: Oh, no, sir.

...

THE COURT: Have each of you received a copy of the indictment

in this case, had a full opportunity to review it with your attorney, and do you

understand the charge contained in the indictment? Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Is it necessary that I read the indictment to you,

Mr. Hale?

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DEFENDANT HALE: No, sir.

...

THE COURT: All right. Now, are each of you fully satisfied with

the representation that you’ve received from your attorney in this case, and

have you fully discussed with your attorney all of the facts surrounding the

charge? Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Now, I’ve been furnished a written plea agreement

in this case for each of you, and this plea agreement appears to have your

signature at the end of the plea agreement and also at the end of the factual

resume. Did you, in fact, sign the document[s], Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: All right. By signing this document, you are

acknowledging that you’ve received a copy of it, that you have either read it

or discussed it with your attorney or gone over it with your attorney, that you

fully understand the terms and conditions of the plea agreement and factual

resume, and that you agree with it. Is that true, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Now, have there been any promises made to you

by anyone or has anyone attempted in any way to force you to plead guilty or

to pressure you or threaten you in any way? Mr. Hale?

DEFENDANT HALE: No, sir.

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...

THE COURT: Now, the penalties that could be imposed if

convicted of Count One of the indictment are outlined on page three of the

plea agreement. 

And for you, Mr. Hale, if convicted of Count One, you could receive

a term of imprisonment of 20 years to life, a fine not to exceed $8 million, a

supervised release term up to five years, and a mandatory special assessment

of $100. It also indicates that restitution may be ordered. Is that true in this

case?

MR. COSTELLO: Well, only to the extent that the Mandatory

Restitution Act applies in all cases, but we don’t expect there to be any

restitution here.

THE COURT: All right. Mr. Hale, do you understand that those

are the penalties that could be imposed? 

DEFENDANT HALE: Yes, sir.

...

THE COURT: Are either of you presently on probation, parole,

or supervised release as the result of a conviction in any other case? Mr. Hale?

DEFENDANT HALE: No, sir.

...

THE COURT: Any forfeiture to be had in these cases?

MR. COSTELLO: Not specifically, Your Honor. I mean, there is a

forfeiture count named. The extent of the forfeiture, at least that we know of

at this point, is currency that’s already been forfeited.

THE COURT: Okay. So, no additional forfeiture of property or

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anything like that? 

MR. COSTELLO: Not that we are aware of at this point.

THE COURT: All right. Mr. Hale and Mr. Ezell, if convicted of

the charge in this case, you may lose valuable rights, including the right to

vote, the right to hold public office, the right to serve on a jury, and the right

to possess any kind of firearm. Because it’s a drug offense, you could lose

certain Federal benefits. 

Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: 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 those guidelines

might affect your case? Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: The way in which the Sentencing Guidelines apply

to your case might be affected by what you say to the Court and to the

probation officer. The Court will not be able to determine an appropriate

sentence for your case until after a presentence report has been completed and

you and the United States have had an opportunity to challenge the facts

reported by the probation officer. 

Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

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THE COURT: The sentence imposed might be different from any

estimate your attorney or anyone else might have given you. Do you

understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: After it has been determined what guideline applies

to a case, the judge has the authority to impose a sentence that is more severe

or less severe than the sentence called for in the Guidelines.

Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Under some circumstances, you the United States

each may have the right to appeal any sentence the judge imposes. For

instance, you can appeal your conviction if you believe that your guilty plea

was somehow unlawful or involuntary or if there’s some other fundamental

defect in the proceedings not waived by your guilty plea.

You also have the right to waive your right to appeal, and I see by your

plea agreements that you are waiving your right to appeal any sentence

imposed with the following exceptions: And that would be any punishment in

excess of the statutory maximum, any punishment constituting an upward

departure of the guideline range, and any claim of ineffective assistance of

counsel. 

Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Parole has been abolished. If you are sentenced to

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prison, you will not be released on parole. Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: If the sentence is more severe than you expected

or if I do not accept the sentencing recommendation in your plea agreement,

you will still be bound by your plea. Even if you do not like the sentence

imposed by the Court, you will not be able to withdraw your plea. The time to

make that decision is now. Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: You have a right to plead not guilty to any offense

charged against you and to persist in that plea. You would then have the right

to trial by jury. During that trial, you would have the right to the assistance of

counsel for your defense and to the appointment of counsel if you could not

afford to hire one, the right to see and hear all of the witnesses and to have

your attorney cross-examine them, the right to testify yourself or to decline to

testify and remain silent, and the right to have the Court issue subpoenas for

any witnesses you wish to call in your defense.

At the trial, you would be presumed to be innocent, and the United

States would have the burden of proving that you are guilty beyond a

reasonable doubt. Before you can be convicted, all 12 jurors must be

convinced that the United States has met that burden.

If you are found guilty after a trial, you would then have the right to

appeal your conviction to a higher court, and if you could not afford to pay the

cost of an appeal, the Government would pay those costs for you.

Do you understand all of that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

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...

THE COURT: If you plead guilty, however, and if the Court

accepts your plea, there will be no trial; you will be waiving or giving up your

right to a trial and all the other rights that I just described.

Do you understand that, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Included in your plea agreement is a factual

resume, and this factual resume has a statement of the elements of the offense

charged in Count One of the indictment, which states a violation of Title 21,

United States Code, Section 846.

And the elements of that offense are that two or more individuals in

some way or manner came to a mutual understanding to commit an unlawful

act, in this case, the possession with intent to distribute cocaine; that you,

knowing the unlawful purpose of the plan, willfully joined in it; and that the

object of the unlawful plan was to possess with intent to distribute more than

five kilograms of cocaine.

Do you understand that those are the elements of the offense to which

you are pleading guilty, Mr. Hale?

DEFENDANT HALE: Yes, sir.

...

THE COURT: And do you fully understand that if there was a

trial in this case, the United States would be required to present sufficient

evidence to prove each of these essential elements beyond a reasonable doubt?

Mr. Hale?

DEFENDANT HALE: Yes, sir.

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21

THE COURT: Also included in your factual resume is a statement

of offense conduct. Did you, in fact, commit the acts and do the things that you

have admitted to in this statement, Mr. Hale?

MR. HANLEY: Judge, if I could refer your attention to . . . the

factual resume . . . page three.

THE COURT: All right.

MR. HANLEY: And this is not going to change anything about the

guilty plea whatsoever. The second paragraph is a summary of what Mr.

Paniagua told the agents, and in it he refers to some methamphetamine. 

. . . [W]e agree that Mr. Paniagua said that. We do not agree that he

delivered any methamphetamine to Mr. Hale, and we think that his estimates

are a bit high. But certainly, we agree with everything else in that . . . he was

receiving cocaine, and the money transfer and everything else is correct, Your

Honor. . . . 

THE COURT: And I understand that you are reserving the right

to argue quantity at the time of the sentencing?

MR. HANLEY: That’s right, Your Honor. Yes, sir.

THE COURT: All right. With those comments, Mr. Hale, did you,

in fact, commit the acts and do the things that you have admitted to in this

statement of offense conduct?

DEFENDANT HALE: Yes, sir.

...

THE COURT: Then for you, Mr. Hale and Mr. Ezell, I find that

the facts and acts to which you have admitted support a violation of the charge

contained in Count One of the indictment. How do you now plead to the

charge in Count One of the indictment, guilty or not guilty, Mr. Hale?

DEFENDANT HALE: Guilty.

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...

THE COURT: All right. And Mr. Hanley, are you aware of any

reason the Court should not accept Mr. Hale’s guilty plea at this time?

MR. HANLEY: No, sir.

...

THE COURT: Then it is the finding of this Court in the case of

the United States versus Jeremiah Hale and Samuel Ezell that each of you are

fully competent and capable of entering an informed plea, that you are aware

of the nature of the charge and the consequences of your plea, and that your

plea of guilty is a knowing and voluntary plea supported by an independent

basis in fact containing each of the essential elements of the offense. Your plea

is therefore accepted, and you are now adjudged guilty of that offense.

(Id. at 2-3, 3, 4, 4-5, 5-6, 6, 6-7, 8, 9, 10, 11, 11-12, 13, 13-14, 15 & 16)

4. The Presentence Investigation Report was initially prepared by the Probation

Office on April 16, 2008 and distributed to counsel. (See Doc. 56, at 1) Although the United

States indicated that it did not have any objections to the report (Doc. 51), counsel for Hale

interposed the following objections to the report:

1. The Defendant objects to the finding in paragraph thirty-five of

the pre-sentence investigation report that the Defendant was responsible for a

total marijuana equivalent of 60,780 kilograms and a base offense level of

thirty-eight.

2. The Defendant objects to the finding in paragraph thirty-six of

the pre-sentence investigation report that the Defendant possessed a firearm

and that the offense level should be increased by two levels.

3. The Defendant objects to the finding in paragraph thirty-eight of

the pre-sentence investigation report that the Defendant was a manager or a

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23

supervisor of a criminal activity and that the offense should be increased by

three levels.

(Doc. 47, at 1) The probation officer responded, in the following manner, to the defendant’s

objections:

[1.] The base offense level was determined by the information

received in the discovery, and the defendant’s factual resume. The probation

officer stands by the presentence report, as written, and respectfully

recommends that the parties be prepared to present their respective positions

at the sentencing hearing.

...

[2.] As indicated in the discovery, on October 25, 2007, during the

arrest of the defendant, for the instant offense, a .40-caliber semi-automatic

pistol was found in the center console of Hale’s vehicle. Shortly thereafter, a

search warrant was executed at Hale’s residence in Eight Mile, Alabama,

where numerous firearms were found. Pursuant to U.S.S.G. § 2D1.1,

Commentary Application Note 3, “the enhancement for weapon possession

reflects the increased danger of violence when drug traffickers possess

weapons.” The probation officer stands by the presentence report, as written,

and respectfully recommends that the parties be prepared to present their

respective positions at the sentencing hearing.

...

[3.] According to the statements made by Freddy Paniagua, Samuel

Ezell and Andre Gable were Hale’s “right hand men;” and Antonio Crenshaw

was one of Hale’s street hustlers. Based on the investigation, there were at

least five or more participants in the drug conspiracy, and Hale was one of the

main “players.” The probation officer stands by the presentence report, as

written, and respectfully recommends that the parties be prepared to present

their respective positions at the sentencing hearing.

(Doc. 56, ADDENDUM TO THE PRESENTENCE REPORT, at 1, 1-2 & 2 (internal

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24

citation omitted))

5. Because the parties could not agree on the total offense level, testimony was

taken at the July 1, 2008 sentencing hearing. (Doc. 62, Sentencing Hearing Transcript, at 4-

33) Freddy Paniagua testified that he worked drug deals with Hale, Ezell, and a guy named

Darren over the past five years. (Id. at 6, 8 & 10) According to Paniagua, Darren worked for

Hale. (Id. at 8; see also id. at 8-9 (Hale and Ezell put the money together and gave it to

Darren to make the transaction)) Paniagua sold the men primarily powder cocaine; the first

year he sold them approximately 3 to 5 kilos each month but then that amount increased in

at least one subsequent year to 8 to 10 kilos a month. (Id. at 10-13) The witness testified that

he cooperated with the DEA in setting up a deal with Hale and Ezell in Mobile in which he

promised to sell them 30 kilograms of powder cocaine. (Id. at 15) Paniagua estimated that

he sold Hale and Ezell approximately 200 kilos of powder cocaine over the period of time

he was dealing with them. (Id. at 18) Hale’s attorney vigorously cross-examined Paniagua

(id. at 20-33) and, based on the content of Paniagua’s responses to that questioning (see id.),

a sidebar conference was conducted, Paniagua was released to a holding cell (id. at 33), and

the following occurred:

THE COURT: Mr. Hanley, are you ready to proceed?

MR. HANLEY: Yes.

THE COURT: . . . Mr. Hale, if you will come forward, please. .

. . Raise your right hand and take an oath.

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(Defendant Hale was placed under oath.)

THE COURT: All right. Would you state your name for the

record, please, sir.

DEFENDANT HALE: Jeremiah Hale.

THE COURT: All right. Mr. Hale, it’s probably obvious that you

are here today for a sentencing hearing following entry of a guilty plea on

January 24, 2008, to Count One of the indictment charging conspiracy to

possess with intent to distribute cocaine. The plea was entered subject to a

written plea agreement.

The Presentence Report has been published in this case, and Mr.

Hanley, I assume that you’ve received a copy of that report and had a chance

to discuss it with Mr. Hale?

MR. HANLEY: I have, Your Honor.

THE COURT: And Mr. Hale, you understand what’s contained

in the Presentence Report? 

DEFENDANT HALE: Yes, sir.

THE COURT: There were a number of objections filed to the

Presentence Report, initially, the objection to the weight of the drugs

attributable to Mr. Hale, which we have now spent about an hour taking

testimony on. And based on a conference with Counsel, it’s my understanding

that you’ve reached an agreement as to the quantity that is attributable to Mr.

Hale –

MR. HANLEY: Yes, sir.

THE COURT: –is that correct [] Mr. Costello?

MR. COSTELLO: Yes, Your Honor. The agreement is to

approximately between 30 and 50 kilos but not more than 50 kilos of powder

cocaine.

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26

THE COURT: All right. And that’s based on information that’s

contained in the Presentence Report regarding a transaction that occurred here

in Mobile and also money that was transferred as a result of other transactions,

as I understand it?

MR. HANLEY: It does. It only deals with the incident surrounding

his arrest and the two money transactions in Mobile, yes, sir.

 THE COURT: All right. And based on that agreement then, the

base offense level is 34. There are also other objections, that being the

enhancement for the firearm and an enhancement for Mr. Hale’s alleged role

in the offense.

Mr. Hanley, you want to be heard on those?

MR. HANLEY: Judge, yes, sir. I understand that there is an

agreement on that, Judge, that the enhancement, the three-point enhancement

for his leadership, that motion would be granted. My objection would be

granted.

It’s also my understanding, Judge, that we have an agreement that there

was a gun in the console of the vehicle when Mr. Hale was arrested and that

we would agree that my objection to that would be denied.

THE COURT: Okay. Is that the Government’s agreement as well?

MR. COSTELLO: It is, Your Honor.

THE COURT: All right. Based on what I see in the Presentence

Report as well as the testimony that I heard this morning, I find that the

firearm adjustment under 2D1.1 does apply. There’s a two-level enhancement.

The role in the offense does not apply, and therefore the objection is granted

as to the role.

That generates a base offense level of 34. There’s a two-level

enhancement for the firearm and then a three-level reduction for acceptance

of responsibility, generating . . . an adjusted offense level of 33, generating a

guideline range of 135 to 168 months. However, the mandatory minimum in

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4 Jeremiah Hale’s mother made a statement on his behalf and on the behalf of her

grandson, Samuel Ezell. (Tr. at 37-38)

27

this case applies, and the mandatory minimum in this case is 240 months.

Is that correct, Mr. Hanley?

MR. HANLEY: Yes, sir.

THE COURT: And Mr. Costello?

MR. COSTELLO: That’s correct, Your Honor. That’s based on the

Defendant’s prior conviction on January 13th of 1998 for a felony possession

of cocaine charge in Mobile County.

THE COURT: All right. Mr. Hanley, you have anything you want

to offer on Mr. Hale’s behalf before sentence is imposed?4

...

MR. HANLEY: Come on over here, Jeremiah. Judge, I would ask

that you sentence Jeremiah to the statutory minimum. 

THE COURT: All right. Mr. Hale, you have anything you want

to say before sentence is imposed?

DEFENDANT HALE: I just want to say I’m sorry for what I did,

and I apologize to the United States and everybody.

...

THE COURT: All right. Mr. Hale, I have considered all the

information I have available to me, that contained in the Presentence Report,

the comments of Mrs. Hale as well as the letter and the petition that has been

signed for you.

I do so because I’m required to under Section 3553(a) of Title 18 to

consider your personal history and characteristics, the nature of the offense,

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28

any criminal history that you have in determining a proper sentence, one that

is reasonable and fair under the circumstances.

With regard to the nature of the offense, Mr. Costello is right. This is

really a major drug case. It’s as large as we see in this District. The

information contained in the Presentence Report is replete with instances

where you were involved in the distribution of large quantities of cocaine in

this District.

I don’t think there’s any question in anybody’s mind that that quantity

of cocaine has a severe, destructive force on the community. We’re talking,

you know, up to, at least in the deal that you were caught in, up to 30

kilograms of cocaine and substantial amounts of money being transferred back

and forth from Mobile to other places, including Texas and perhaps beyond.

So, the nature of the offense is something I have to consider. However,

in your case, because of your prior conviction and because of the substantial

quantity of cocaine that you were dealing, the mandatory minimum in your

case, that’s the sentence that I am obligated to impose and can go no lower

then by virtue of the laws of this country, is 240 months.

You have come forward, you have pled guilty, accepted responsibility,

and certainly I’ll take that into account in fashioning a sentence that is fair and

reasonable. Your agreement with the Government is for either a low end of the

Guidelines or for the mandatory minimum, I suppose, which in this case is 240

months. That’s the sentence that I will impose in this case. It is the minimum

sentence that I can impose, but I feel that that sentence certainly is reasonable

and accomplishes the sentencing objectives of Section 3553(a).

Accordingly, pursuant to the Sentencing Reform Act of 1984, it’s the

judgment of this Court that you, Jeremiah Hale, are hereby committed to the

custody of the United States Bureau of Prisons to be imprisoned for a term of

240 months as to Count One. The Court recommends that you be imprisoned

at an institution where a residential, comprehensive, substance abuse treatment

program is available.

Upon release from imprisonment, you shall be placed on supervised

release for a term of five years as to Count One. Within 72 hours of release

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29

from the custody of the Bureau of Prisons, you shall report in person to the

probation office in the district to which you are released. 

While on supervised release, you shall not commit any Federal, state,

or local crimes, you shall be prohibited from possessing a firearm or other

dangerous device, and shall not possess a controlled substance. In addition,

you shall comply with the standard conditions of supervised release as

recommended by the Sentencing Commission and on record with this Court.

The Court also orders that you comply with the following special

condition of supervised release; that is, that you shall participate in a program

of testing and treatment for drug and/or alcohol abuse as directed by the

Probation Office.

The Court finds that you do not have the ability to pay a fine; therefore,

no fine is imposed.

For the reasons given, the Court finds that the sentence imposed

addresses the seriousness of the offense and the sentencing objectives of

punishment, deterrence, and incapacitation.

It is ordered that you pay a special assessment in the amount of $100 on

Count One, which is due immediately.

You can appeal your conviction if you believe that your guilty plea was

somehow unlawful or involuntary of if there’s some other fundamental defect

in the proceedings not waived by your guilty plea or your plea agreement. You

have the right to apply for leave to appeal in forma pauperis, and the Clerk of

Court will prepare and file notice of appeal upon your request. With few

exceptions, any notice of appeal must be filed within 10 days of the date of

judgment.

I note that there’s a remaining count of the indictment. Does the

Government have a motion?

MR. COSTELLO: Yes. Pursuant to the plea agreement, we move to

dismiss Count Two, Your Honor.

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5 Hale did not appeal his conviction and sentence. (See Docket Sheet)

30

THE COURT: All right. That motion is granted. Count Two of the

indictment is hereby dismissed. Anything further from the Government?

MR.COSTELLO: No, Your Honor. Thank you.

THE COURT: From Probation?

PROBATION OFFICER JENNIFER CHILDRESS: Your Honor, to the

enhanced penalty, the minimum supervised release term is 10 years.

THE COURT: All right. The order of the Court is amended to

reflect a supervised release term of 10 years.

Anything further from Probation?

PROBATION OFFICER JENNIFER CHILDRESS: No, Your Honor.

THE COURT: Mr. Hanley, anything further?

MR. HANLEY: No, sir.

THE COURT: Good luck to you, Mr. Hale. That’s all. Thank you.

(Id. at 33, 33-36, 38-39 & 39-43; see also Doc. 60 (judgment in a criminal case entered on

the docket August 4, 2008))5

6. On August 3, 2009, Hale filed the present collateral attack on his conviction

and sentence pursuant to 28 U.S.C. § 2255. (Doc. 70; see also Doc. 71 (memorandum))

Therein, petitioner claimed that his trial attorney provided constitutionally ineffective

assistance of counsel, as follows: (1) he failed to object at sentencing and raise on appeal the

two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (2)

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31

he failed to object at sentencing and raise on appeal that the Court “enhanced” his guideline

range from level 32 to level 36 based on the quantity of cocaine alleged in the dismissed

Count 2 of the indictment; (3) he failed to object at sentencing to the government’s failure

to properly notify petitioner of the 851(a)(1) enhancement; and (4) he failed to object at

sentencing (and waived the objection and argument on direct appeal) to the court’s failure

to ask petitioner whether he had previously been convicted of a drug offense and failure to

inform petitioner that he could not challenge the prior conviction after sentencing. (Doc. 70,

at 4, 5, 7 & 8; see also Doc. 71, at 10-44)

7. The United States filed its motion to dismiss and response in opposition on

September 9, 2009. (Doc. 77) Therein, the government argues that Hale’s contention–in his

memorandum–that his attorney was ineffective in failing to appeal his conviction and

sentence has no merit (id. at 7-8) and that, otherwise, petitioner is attempting to circumvent

his valid sentence appeal waiver by recasting sentencing claims as allegations of ineffective

assistance of counsel (id. at 8-12). Hale filed a responsive memorandum on October 13,

2009. (Doc. 83) 

8. An evidentiary hearing was conducted in this case on April 13, 2010. Jeremiah

Hale testified that immediately after his sentencing hearing was completed on July 1, 2008,

and again the following day over the telephone, he informed his retained attorney, Neil

Hanley, Esquire, that he wanted to appeal his case. In addition, petitioner’s sister, Debra

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6 None of these three witnesses testified that Hanley specifically refused to file an

appeal. Instead, what these witnesses stated was that Hanley told all of them he would get back

in touch with them, or at least touch base with Hale and speak to him about his case, but that

Hanley simply “dropped the ball” in this regard.

7 Hale testified that even though the plea agreement specifically stated that the

maximum penalty he could face as to Count 1 of the indictment was imprisonment for 20 years

to life, he thought the modifier “could” meant just that and not that 20 years was the minimum

mandatory sentence he was facing. 

32

Hale, and his mother, Jessie Mae Hale, testified that they both spoke to Hanley during the

days immediately following Jeremiah’s sentencing and informed him that Jeremiah wanted

to pursue an appeal.6

 According to Hale, he wanted to appeal his sentence because he had

been informed by Hanley before entry of his plea of guilty that he was facing a mandatory

minimum sentence of 10 years to life imprisonment and that it was only later, after he

changed his plea to guilty, that he learned that because of his prior drug felony that the

mandatory minimum sentence was 20 years to life imprisonment. Petitioner testified that had

he known the mandatory minimum sentence he was facing was 20 years to life

imprisonment, he would have pleaded not guilty and would have insisted on going to trial.7

9. In contrast to the Hales’ collective testimony, Hanley testified that Hale never

requested that he file notice of appeal nor did any of Hale’s family members inform him that

petitioner wanted to pursue an appeal. Hanley stated that had any such information been

given to him directly by Hale, or relayed to him by Hale’s family members, he would have

been duty-bound to file notice of appeal, regardless of the fact that he did not believe there

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8 Hanley testified that in his 35-year legal career he has never refused to file a

notice of appeal for any client intent on appealing his or her conviction and/or sentence,

regardless of the merits of the notice. In fact, he has recently in two cases filed notices of appeal

and briefs even though he did not believe there were any meritorious issues for appeal. In Hale’s

case Hanley testified that, had he been asked, he would have filed a notice of appeal and either

represented Hale on appeal or asked this Court to appoint another attorney to represent him on

appeal. 

9 Because of his duty in this regard, and the relative ease with which an appeal

could have been accomplished, there was no reason for Hanley to refuse to file notice of appeal.

10 Hanley negotiated the 20-year deal because had Hale gone to trial he would have

faced a much lengthier sentence upon conviction.

11 Hanley testified that he never informed Hale, nor would he have ever informed

Hale, that the mandatory minimum sentence he was facing, given his prior drug felony, was 10

years to life imprisonment, as opposed to 20 years to life imprisonment, because it has never

been his experience for the government not to pursue a § 851 enhancement based on a prior

felony drug conviction.

12 Hanley testified that the reason Hale wanted to cooperate was because the

mandatory minimum sentence was so high given his prior drug felony, a conviction which both

men knew was valid.

33

were any appealable issues that had merit,8 and would have taken literally a few minutes of

his time to electronically file notice of appeal.9

 According to Hanley, Hale at all times

appreciated the fact that the mandatory minimum sentence he was facing was 20-years to life

imprisonment,10 given his prior drug felony,11 and that he also knew that the only possible

way he could get a sentence of less than the 20-year statutory mandatory-minimum sentence

was to cooperate with the government12 so that it would move for downward departure.

Hanley testified that the DEA gave Hale the opportunity to cooperate after entry of his guilty

plea; however, instead of providing substantial assistance, Hale lied to the DEA and thereby

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13 By this time, however, it was too late for Hale to come across with truthful

information. In other words, Hale’s previous untruthfulness made him unusable to the DEA.

34

thwarted any possibility of receiving a downward departure. Hanley testified that the only

conversation he had with Hale after his sentencing revolved around his desire to get back in

touch with the DEA and provide them with truthful information.13

10. During the evidentiary hearing, counsel for the petitioner admitted that Hale

did not raise in his § 2255 motion (Doc. 70) the claim that he directed Hanley to file an

appeal and Hanley refused to appeal his case and, further, that the only reference to this claim

made by Hale is contained in one sentence on pages 14 and 15 of his 45-page memorandum

in support of his motion (see Doc. 71, at 14-15 (“Defense counsel Neil Hanley denied Mr.

Hale of his constitutional right to appeal these objections, after Mr. Hale requested counsel

to do so.”)). Despite this failure, the undersigned scheduled and conducted an evidentiary

hearing, at the government’s request (see Doc. 77, at 6-8), out of an abundance of caution

given this Court’s duty to liberally construe pro se pleadings. Nevertheless, Hale’s failure

to directly raise this pivotal claim in his § 2255 motion casts into doubt Hale’s evidentiary

testimony, as well as that of his sister and mother, regarding the purported lengths taken to

have Hanley pursue an appeal in this case. 

CONCLUSIONS OF LAW

1. 28 U.S.C. § 2255 reads, in relevant part, as follows: “A prisoner in custody

under sentence of a court established by Act of Congress claiming the right to be released

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14 Once a criminal defendant enters a guilty plea, he waives all non-jurisdictional

challenges to the conviction’s constitutionality and only an attack on the voluntary and knowing

nature of the plea can be raised. See McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441,

1449, 25 L.Ed.2d 763 (1970). Stated differently, “a voluntary and intelligent plea 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)

(emphasis supplied). Therefore, when a § 2255 motion is filed collaterally challenging

convictions obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569,

109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989).

35

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.” 

2. In this instance, Hale contends that constitutionally ineffective assistance of

counsel entitles him to the relief afforded by 28 U.S.C. § 2255.14 In order to establish a claim

of ineffective assistance of counsel, a petitioner is required to show (1) that his 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, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). “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.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001), cert. denied sub nom.

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15 It is proper in considering claims made by a federal prisoner under § 2255 to look

for guidance from cases discussing claims raised by state prisoners under 28 U.S.C. § 2254. See

Hagins v. United States, 267 F.3d 1202, 1205 (11th Cir. 2001) (citing Holladay v. Haley, 209

F.3d 1243 (11th Cir. 2000)), cert. denied, 537 U.S. 1022, 123 S.Ct. 545, 154 L.Ed.2d 432

(2002).

16 “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).

17 “‘[T]he cases in which habeas 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).

36

Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).15 The Strickland

v. Washington standard for evaluating claims of ineffective assistance of counsel was held

applicable to 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).16 In addition, the

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.

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

added), cert. denied sub nom. Coulter v. Jones, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d

860 (1996).17 Of course, in the context of sentencing following entry of a guilty plea the court

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simply considers whether petitioner has established, in accordance with Strickland, supra,

that his attorney was deficient and that he was prejudiced by this deficiency in performance.

See, e.g., Myers v. United States, 2009 WL 1505638, *1 (W.D. Pa. 2009) (“In order for

petitioner to succeed on an ineffective assistance of counsel claim, he must prove: (1) that

his counsel was deficient; and (2) that he was prejudiced by his counsel’s deficiency.”), aff’d,

2010 WL 438704 (3rd Cir. 2010).

3. When applying the Strickland standard, it is clear that courts “are free to

dispose of ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 F.3d

1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied sub nom. Oats v. Moore, 527

U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d 243 (1999); see also 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.”). 

4. Petitioner’s primary contention in this case, as previously indicated, is that he

instructed/requested his attorney, Neil Hanley, to appeal his case and that Hanley’s failure

to file an appeal in his case deprived him of constitutionally effective assistance of counsel.

To this end, Hale testified during the evidentiary hearing that he told Hanley he wanted to

appeal and, as well, petitioner’s mother and sister testified they informed Hanley that Hale

desired to appeal his case; however, Hanley testified that neither Hale nor any family

member on petitioner’s behalf informed him the petitioner desired to pursue an appeal. The

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18 Petitioner knew from at least his detention hearing on November 1, 2007 that he

was facing an enhanced sentence, due to his prior drug felony, of a mandatory minimum of 20

years to life in prison. His knowledge of this fact was thereafter reinforced at the probation office

conference on December 18, 2007, prior to his guilty plea proceeding when he and his attorney

went over the details of the plea agreement, and during the guilty plea proceeding itself.

38

conflicting testimony requires the undersigned to make a credibility determination. Given

that Hale’s testimony for why he desired to pursue an appeal, that is, that he did not know

until it was too late to withdraw his plea that he was facing a statutory mandatory minium

sentence of 20 years to life imprisonment, is contrary not only to Hanley’s evidentiary

hearing testimony but, as well, to all other evidence contained in the Court’s electronic

files,18 the undersigned finds no basis for petitioner to have instructed Hanley to file an

appeal and, therefore, finds that Hale did not instruct/request his attorney to file an appeal.

This credibility determination is solidified by petitioner’s failure to specifically delineate this

ground as a claim in his § 2255 motion, the fact that Hanley had no reason not to pursue an

appeal had Hale instructed him to do so given the relative ease with which such an appeal

could be accomplished electronically, and the general demeanor of Hanley at the hearing as

opposed to the demeanor of Hale and his witnesses. Accordingly, Hanley’s representation

of Hale in this regard was not deficient. See, e.g., Smith v. United States, 522 F.Supp.2d 233,

238 (D. D.C. 2007) (“[T]he Court finds that petitioner did not ask his counsel to file an

appeal, and therefore, counsel’s representation of defendant was not ineffective.”); cf.

Gomez-Diaz v. United States, 433 F.3d 788, 791-792 (11th Cir. 2005) (“The [Supreme] Court

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[in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)] first

reaffirmed the well-settled rule that an attorney who fails to file an appeal on behalf of a

client who specifically requests it acts in a professionally unreasonable manner per se. The

Court went on to hold that, even if a client has not made a specific request of his attorney to

file an appeal, a court must inquire whether the attorney consulted with the client regarding

the advantages and disadvantages of appealing and made a reasonable effort to determine the

client’s wishes. If so, the attorney has only acted unreasonably if he has ignored the

client’s wishes to appeal the case.” (internal citations omitted; emphasis supplied)). 

5. The government contends that petitioner’s claims one through four, same

actually set forth in his § 2255 motion as opposed to his memorandum in support thereof, are

improper attempts to circumvent his sentence appeal waiver by recasting sentencing claims

as allegations of ineffective assistance of counsel. The undersigned agrees. 

6. It is clearly established in this circuit that “[a]n appeal waiver is valid if a

defendant enters into it knowingly and voluntarily.” United States v. Bascomb, 451 F.3d

1292, 1294 (11th Cir. 2006) (citation omitted); see also United States v. Bushert, 997 F.2d

1343, 1350 (11th Cir. 1993) (“We hold, therefore, that in most circumstances a defendant’s

knowing and voluntary waiver of the right to appeal his sentence will be enforced by this

circuit.”), cert. denied, 513 U.S. 1051, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994). In this case,

Hale pleaded guilty during a change of plea proceeding after being informed of the limited

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19 The undersigned would again emphasize that from virtually the inception of his

criminal case, that is, since at least November 1, 2007, Hale knew that because of his prior

felony drug conviction he was facing a statutory mandatory minimum sentence of 20 years to life

imprisonment. The position he now stakes in his § 2255 motion and memorandum, through the

hands of a prison writ writer, is motivated by nothing other than his after-the-fact attempt to

blame someone else for his failure to give truthful testimony to the DEA and thereby reap the

benefits of a downward-departure motion filed by the government.

40

appeal waiver and acknowledging his understanding of that limited waiver. Specifically, Hale

informed the Court that he understood, as set forth in the plea agreement bearing his

signature, that he had waived all rights to appeal his sentence except that he could appeal if

the punishment imposed was in excess of the statutory maximum, if the punishment imposed

constituted an upward departure from the guideline range, or if he had a claim of ineffective

assistance of counsel. (Doc. 67, Guilty Plea Hearing, at 10; compare id. with Doc. 37, PLEA

AGREEMENT, at ¶¶ 20-22) Based upon the foregoing, as well as Hanley’s evidentiary

hearing testimony that Hale’s case presented no meritorious issues to appeal, the undersigned

holds that Hale’s knowing and voluntary limited waiver of his right to appeal his sentence

in this case should be enforced. Because it is clear that Hale’s punishment was not in excess

of the statutory maximum nor was his sentence an upward departure from the guideline

range, his numerous (and frivolous)19 sentencing arguments cannot be challenged in this

collateral petition. Cf. Bushert, supra, 997 F.2d at 1350 n.17 (indicating that even broad

waivers, which include a waiver of collateral appeal of the sentence, can be judicially

enforced so long as they are knowing and voluntary). Accordingly, petitioner is precluded

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from contesting his counsel’s effectiveness related to his sentencing. Williams v. United

States, 396 F.3d 1340, 1342 (11th Cir.) (“While we have not addressed whether a sentenceappeal waiver includes the waiver of the right to challenge the sentence collaterally in the

context of a § 2255 petition asserting ineffective assistance of counsel, every Circuit to have

addressed the issue has held 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. We are persuaded by the foregoing consistent line of authority from our

sister Circuits on this issue, particularly since a contrary result would permit a defendant to

circumvent the terms of the sentence-appeal waiver simply by recasting a challenge to his

sentence as a claim of ineffective assistance, thus rendering the waiver meaningless.”

(internal citations omitted)), cert denied, 546 U.S. 902, 126 S.Ct. 246, 163 L.Ed.2d 226

(2005). In other words, Hale cannot now attack in this § 2255 the two-level gun enhancement

to his sentence, the § 851(a)(1) enhancement, or the Court’s “enhancement” of his guideline

range from level 32 to level 36 because of the quantity of cocaine alleged in the dismissed

Count 2, based upon the claim that his attorney was ineffective in failing to properly object

to those enhancements. These claims of ineffective assistance of counsel are precluded by

Hale’s valid sentence-appeal waiver. 

7. Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the

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undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C.

foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate of appealability

when it enters a final order adverse to the applicant.”). The habeas corpus statute makes clear

that an applicant is entitled to appeal a district court’s denial of his habeas corpus petition

only where a 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. § 2253(c)(2). Where,

as here, a habeas petition is being denied, in substantial part, on procedural grounds without

reaching the merits of an underlying constitutional claim, “a COA should issue [only] when

the prisoner shows . . . that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling[,]” Slack v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), and, in part,

on the merits of an underlying constitutional claim, a COA should issue only when the

petitioner demonstrates “that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong[,]” id.; see also id. at 483-484, 120 S.Ct. at

1603-1604 (“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

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

‘“adequate to deserve encouragement to proceed further.”’”); see Miller-El v. Cockrell, 537

U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling

standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for that

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

issues presented were “adequate to deserve encouragement to proceed further.”’”). The

sentence-appeal waiver in this case is valid and, therefore, a reasonable jurist could not

conclude that this Court is in error for failing to reach the merits of petitioner’s sentencing

issues, see Bushert, supra, or that it is in error in failing to reach Hale’s ineffectiveassistance-of-counsel claims as they relate to those sentencing issues, see Williams, supra,

nor could a reasonable jurist conclude that petitioner should be allowed to proceed further

with respect to these claims. Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain

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

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

petition or that the petitioner should be allowed to proceed further.”). In addition, as it relates

to petitioner’s assertion of ineffective assistance of counsel, due to his attorney’s alleged

failure to appeal his case as instructed, reasonable jurists could not debate whether Hale’s §

2255 motion to vacate should be resolved in a different manner or that the Sixth Amendment

issue presented is adequate to deserve encouragement to proceed further. Accordingly,

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petitioner is not entitled to a certificate of appealability.

CONCLUSION

The Magistrate Judge is of the opinion that petitioner’s rights were not violated in this

cause and that his request to vacate, set aside or correct his sentence should be DENIED.

Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to

appeal in forma pauperis.

The instructions which follow the undersigned’s signature contain important

information regarding objections to the report and recommendation of the Magistrate Judge.

DONE this the 20th day of April, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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20 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

45

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen (14)

days of the date of service of this document, file specific written objections with the Clerk of this court.

Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and

will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge

is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a dispositive

matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a ‘Statement of

Objection to Magistrate Judge’s Recommendation’ within ten days20 after being served with

a copy of the recommendation, unless a different time is established by order. The statement

of objection shall specify those portions of the recommendation to which objection is made

and the basis for the objection. The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the party’s arguments that the magistrate

judge’s recommendation should be reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and incorporated into

the brief in support of the objection. Failure to submit a brief in support of the objection may

be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district

judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate

for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for

a transcript, is advised that a judicial determination that transcription is necessary is required before the

United States will pay the cost of the transcript.

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