1

IN THE UNITED DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EDDIE LAMANQUIL SMITH, : 

#12876-003, :

Petitioner, : 

 : CRIMINAL NO. 12-00256-CG-B

vs. : CIVIL ACTION NO. 14-00167-CG-B

 :

UNITED STATES OF AMERICA, :

 :

Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner Eddie Lamanquil 

Smith’s Motion to Vacate, Set Aside, or Correct Sentence under 

28 U.S.C. § 2255 (Doc. 52), the Government’s Response in 

Opposition (Doc. 57), and the Petitioner’s Reply 1 . (Doc. 64). 

This action has been referred to the undersigned Magistrate 

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

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

Cases and is now ready for consideration.2 The undersigned has 

conducted a careful review of the record and finds that no 

evidentiary hearing is required to resolve this case. Kelley v. 

 1 Also pending before the Court are Petitioner’s Motions for 

Evidentiary Hearing. (Docs. 69, 71, 72). Because a careful 

review of the record reveals that no evidentiary hearing is 

required to resolve this action, the motions are due to be 

denied.

2 The Honorable United States District Judge Callie V.S. Granade

presided over the plea hearing and sentencing in this action. The 

undersigned has reviewed Smith’s petition and all other relevant 

documents in the Court’s file and has fully familiarized herself with 

the proceedings before Judge Granade. 

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Sec’y for Dep’t of Corr., 377 F.3d 1317 (11th Cir. 2004). Upon 

consideration, the undersigned hereby recommends that Smith’s 

Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 

§ 2255 be DENIED, that this action be DISMISSED, and that 

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

America, and against Petitioner, Eddie Lamanquil Smith. The 

undersigned also recommends that should Smith file a certificate 

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

appeal in forma pauperis.

I. PROCEDURAL BACKGROUND

On October 25, 2012, Smith was charged in a three count 

indictment with possession of cocaine with intent to distribute 

in violation of 21 U.S.C. § 841(a)(1) (count one), possession of 

a firearm in furtherance of a drug trafficking crime in 

violation of 18 U.S.C. § 924(c)(1) (count two), and possession 

of a firearm by a prohibited person in violation of 18 U.S.C. § 

922(g)(1) (count three). (Doc. 1). Attorney Latisha Colvin of 

the Federal Defender’s Office was appointed to represent Smith

on December 27, 2012. (Doc. 8).

Through his attorney, Smith notified the Court of his 

intent to plead guilty to count two of the Indictment on 

February 3, 2013. (Doc. 20). On February 6, 2013, the parties 

filed a plea agreement, which was executed by Smith, his 

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counsel, and counsel for the Government.3 (Doc. 22). In the plea 

agreement, Smith agreed to plead guilty to count two in the 

indictment and that he was waiving his right to directly appeal 

or collaterally attack his conviction and sentence except in 

limited circumstances. (Id. at 10). Specifically, Smith agreed 

to waive his right to appeal or collaterally attack his sentence 

except if the sentence imposed punishment in excess of the 

statutory maximum, if the sentence constituted an upward 

departure of the guideline range, or if the he were to assert a 

claim of ineffective assistance counsel. (Id. at 10-11). 

The Court conducted a guilty plea hearing on February 13, 

2013. During the hearing, Smith was placed under oath and Judge 

Granade questioned him about the details of the plea agreement 

 3

 The Plea Agreement also included a factual resume, which 

outlined the elements of the offense, and the facts supporting 

Smith’s plea to the offense. (Doc. 22 at 14-16). Per the 

factual resume, officers received information from a reliable 

confidential informant that Smith was selling crack cocaine from 

his vehicle at a particular location on a public street in 

Mobile, and that he kept a black handgun with him when selling 

drugs. (Id.) On December 7, 2011, officers went to the alleged 

location and conducted surveillance. Officers observed Smith 

make a hand to hand transaction from his vehicle at the location

alleged by the confidential informant, and further observed him 

drinking beer and vodka in a pre-marked bottle. Officers 

requested Smith to exit the vehicle so they could pat him down 

for their safety, and during the pat-down, they located a black 

handgun in Smith’s waistband. Following his arrest, a search of 

Smith’s person revealed a bag of crack cocaine weighing 

approximately 15 grams. In the factual resume, Smith 

acknowledged that he possessed crack cocaine with intent to 

distribute it, and that he possessed the weapon in furtherance 

of a drug trafficking crime. (Id.)

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and the voluntariness of his plea. (Doc. 49). Smith was 

questioned as follows: 

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

indictment, the written charges in your case?

DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: And have you fully discussed those charges 

and the case in general with your lawyer?

DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: Are you fully satisfied with the counsel, 

representation, and advice given to you in your case 

by your attorney?

DEFENDANTE EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: Are you pleading guilty of your own free 

will because you are guilty?

DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: All right. Now, do each of you understand 

that you have a right to plead not guilty to any 

offense charged against you and to persist in that 

plea, and that you would then have the right to a 

trial by jury, at that trial you would be presumed to 

be innocent and the government would have to prove 

your guilt beyond a reasonable doubt, you would have 

the right to the assistance of counsel for your 

defense, the right to see and hear all of the 

witnesses and have them cross-examined in your 

defense, the right on your own part to decline to 

testify unless you voluntarily elected to do so in 

your own defense, and the right to the issuance of 

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subpoenas to compel the attendance of witnesses to 

testify in your defense?

DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: Defendant Eddie Smith, you are pleading 

guilty to a charge of violating Title 18, United

States Code, Section 924(c). In order to convict you 

of that offense, the United States would have to prove 

that you committed the drug-trafficking offense 

alleged in the indictment and that during the course 

of the offense you used, carried, or possessed a 

firearm in furtherance of that offense. Do you 

understand what the government would have to prove in 

order to convict you of that offense?

DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: And, Mr. Eddie Smith, the offense to which 

you’re pleading guilty carries a penalty of at least a 

minimum mandatory five years in prison, a fine not to 

exceed $250,000, a term of supervised release of up to 

three years which would follow any term of 

imprisonment, and if you violated the conditions of 

supervised release you could be imprisoned for that 

entire term as well, and a mandatory special 

assessment of $100.

Do you understand those possible consequences of your 

guilty plea?

DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: All right. Now, I asked Mr. Smiths, both 

Mr. Smiths, 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 

admitting that the government could prove the facts 

set forth in that document in support of your guilty 

plea. Do you understand and agree to that?

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DEFENDANT EDDIE SMITH: Yes, ma’am.

. . .

THE COURT: It is the finding of the Court in the case 

of the United States versus Eddie Lamanquil Smith . . 

. that [the] defendant is fully competent and capable 

of entering an informed plea, that [the] defendant is 

aware of the nature of the charges and the 

consequences of the plea, and that the 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.

The plea is therefore accepted and the defendant is 

now adjudged guilty of that particular offense.

(Doc. 49). The Court accepted Smith’s guilty plea and scheduled 

his sentencing, which was held on August 30, 2013. (Doc. 49 at 

19-20, Doc. 26, Minute Entry 8/19/13). At the sentencing 

hearing, Smith was sentenced to a term of imprisonment of 60 

months. (Minute Entry 8/30/13). The Court also imposed 5 years 

of supervised release, substance abuse testing and treatment, 

and a special assessment of $100. (Id.). In the judgment entered 

on August 30, 2013, Smith’s supervised release was adjusted to a 

term of three years. (Doc. 34). 

Smith, through his attorney, filed a Notice of Appeal on 

September 25, 2013. (Doc. 40). Smith’s appellate counsel, 

Kristen G. Rogers, filed a brief pursuant to Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), 

asserting that there was no meritous grounds for appeal, and 

seeking permission to withdraw from further representation. 

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(Doc. 51 at 2). In a per curiam decision issued on April 4, 

2014, the Eleventh Circuit held that “[o]ur independent review 

of the entire record reveals that counsel  s assessment of the 

relative merit of the appeal is correct”. Thus, the Court 

allowed Rogers to withdraw from further representation of Smith 

and affirmed Smith’s conviction and sentence. (Id.)

On March 19, 2014, Smith filed the instant Motion to 

Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.4

(Doc. 52). In his petition, Smith asserts that he received 

ineffective assistance of counsel on the grounds that his 

attorney: 1) failed to file a motion to suppress during the 

pretrial stage and 2) failed to fully investigate his case and 

advise him of viable defenses before advising him to plead 

guilty. (Id.). The Government filed a Response in Opposition, 

and argues that Smith’s motion should be denied because he is 

unable to show that the alleged errors amounted to deficient 

performance under Strickland v. Washington, 466 U.S. 668 (1984) 

or that he was prejudiced by his attorney’s performance. (Doc. 

57). In his Reply, Smith contends that “[c]ounsel had an 

obligation to ensure that Petitioner was aware of the potential 

violation of his Fourth Amendment Right” and “[h]ad counsel 

 4 Under the mailbox rule, absent contrary evidence, a prisoner’s motion 

is deemed filed on the date it is delivered to prison officials for 

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

2001).

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adequately advised Petitioner of the potential violation of his 

Fourth Amendment Right, Petitioner would have insisted that 

counsel file a motion to suppress.” (Doc. 64 at 6). 

II. DISCUSSION

A. Habeas Standard

The limited scope of habeas relief is well established, as 

this Court has recognized: 

Collateral relief is an extraordinary remedy 

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

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

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

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

have long and consistently affirmed that a collateral 

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

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

waived or exhausted his right to appeal is presumed to 

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

at 164. Unless a claim alleges a lack of jurisdiction 

or constitutional error, the scope of collateral 

attack has remained extremely limited. United States 

v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. 

Ed. 2d 805 (1979). Consequently, "[i]f issues are 

raised and considered on direct appeal, a defendant is 

thereafter precluded from urging the same issues in a 

later collateral attack . . . A defendant is, of 

course, entitled to a hearing of his claims, but not 

to duplicate hearings. The appellate process does not 

permit reruns." Moore v. United States, 598 F.2d 439, 

441 (5th Cir. 1979).

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

Ala. August 4, 2008) (quotation marks in original)(unpublished)5. 

 5 Unpublished opinions are not considered binding precedent, but 

they may be cited as persuasive authority.” 11th CIR. R. 36-2 

(2005).

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B. Ineffective Assistance of Counsel Standard

In Strickland v. Washington, the Supreme Court adopted a 

two-prong standard for evaluating claims of ineffective 

assistance of counsel. Strickland, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984). To satisfy the requirements of 

this two-prong standard, “[a] petitioner must show that 

counsel’s performance was deficient, and that the deficiency 

prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 

123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (citing Strickland, 

466 U.S. at 687). Because the failure to demonstrate either 

deficient performance or prejudice is dispositive of the claim, 

courts applying the Strickland test “are free to dispose of 

ineffectiveness claims on either of [Strickland’s] two grounds.” 

Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998). 

In order to satisfy the “performance” prong of the 

Strickland test, a petitioner is required to show that his 

attorney’s representation “fell below an objective standard of 

reasonableness,” which is measured by “reasonableness under 

prevailing professional norms.” Strickland, 466 U.S. at 688. 

That is, a petitioner must show that “counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment.” Id. at 687. 

In considering such a claim, the court “must indulge a strong 

presumption that counsel’s conduct fell within the wide range of 

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reasonably professional assistance.” Smith v. Singletary, 170 

F.3d 1051, 1053 (11th Cir. 1999) (citations omitted). Thus, the 

petitioner has a difficult burden as to be considered 

unreasonable, “the performance must be such that ‘no competent 

counsel would have taken the action that [the petitioner’s] 

counsel did take.’” Ball v. United States, 271 Fed. App’x. 880 

(11th Cir. 2008)(citations omitted). 

The petitioner must also satisfy the “prejudice” prong of 

the Strickland test. To that end, Petitioner must show that a 

reasonable probability exists that “but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence 

in the outcome.” Id. The petitioner “must affirmatively prove 

prejudice because ‘[a]ttorney errors come in an infinite variety 

and are as likely to be utterly harmless in a particular case as 

they are to be prejudicial.’” Butcher v. United States, 368 F.3d 

1290, 1293 (11th Cir. 2004) (citations omitted). Further, it is 

not enough to satisfy the prejudice prong to merely show that 

the alleged errors affected the case in some imaginable way. See

id. at 1293-1294. (“[T]hat the errors had some conceivable 

effect on the outcome of the proceeding is insufficient to show 

prejudice”) (quoting Strickland, 466 U.S. at 693) (internal 

quotation marks omitted). Thus, “under the exacting rules and 

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

petitioners can properly prevail on the ground of ineffective 

assistance of counsel are few and far between.’” Windom v. 

Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (citations omitted).

The two-prong Strickland standard also applies to 

challenges to the validity of guilty pleas in ineffective 

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

52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). When a 

petitioner’s conviction is based on a guilty plea, in order to 

show prejudice, []he must show that there is a reasonable 

probability that, but for Counsel’s mistakes, []he would not 

have pleaded guilty and would have insisted on going to trial. 

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

1995). In so doing, a defendant must demonstrate that “a 

decision to reject the plea bargain would have been rational 

under the circumstances.” Padilla v. Kentucky, 599 U.S. 356, 

371, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); Gutierrez v. 

United States, 560 Fed. Appx. 924, 2014 U.S. App. LEXIS 5519, 

2014 WL 1227482 (llth Cir. 2014)(unpublished). Based upon a 

careful review of Smith’s petition, and the record evidence, the 

undersigned finds that Smith has failed to demonstrate that his 

counsel provided ineffective representation. 

i. Failure to File Motion to Suppress

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Smith’s first claim is that his attorney’s decision not to 

file a motion to suppress constituted deficient performance 

under the Strickland standard. Smith contends that his Fourth 

Amendments rights were violated when the police searched his 

person and his vehicle. (Doc. 52 at 32). He argues that his 

attorney’s decision not to file a motion to suppress the fruit 

of that search and seizure was unprofessional and did not 

reflect a strategic choice or reasonable decision. (Id. at 16, 

32). He further contends that had his attorney filed a motion 

to suppress, there is a reasonable probability that it would 

have been granted and that his attorney would have changed her 

recommendation for him to plead guilty. (Id. at 34). Smith 

bases his Fourth Amendment argument on the fact that officers 

received information from a confidential informant. He contends 

that this information was neither reliable, nor corroborated;

therefore, the search was illegal. (Id. at 19-20).

In order to prevail on an ineffective assistance claim for 

failure to file a motion to suppress, the petitioner must show 

that there is a reasonable probability that the outcome of his

case would have been different if the motion to suppress had 

been filed. See Jones v. United States, 224 F.3d 1251, 1258 

(11th Cir. 2000) (“[The defendant] must show a reasonable 

probability that the outcome of his case would have been 

different if his counsel had argued for suppression.”). Here, 

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Smith has not shown that had his attorney filed the motion to 

suppress, there was a reasonable probability that the motion 

would have been granted. As the police report indicates, the 

officers received information from a reliable confidential 

informant that Smith was selling drugs at a particular location 

while carrying a black pistol. (Doc. 52 at 43-44). The officers 

went to the location and observed Smith conduct what appeared to 

be a hand to hand drug transaction at the very location 

identified by the confidential informant. (Id.) The confidential 

tip and the corroborating surveillance gave the officers 

reasonable suspicion to make an investigatory stop and conduct a 

Terry frisk. See Terry v. Ohio, 392 U.S. 1, 30 (1968) (noting

that where nothing in the beginning of an encounter with the 

officer serves to “dispel [the officer's] reasonable fear for 

his own or others' safety, he is entitled . . . to conduct a 

carefully limited search of the outer clothing of such persons 

in an attempt to discover weapons”); Accord United States v. 

Medlock, 146 Fed. App’x. 470, 472 (11th Cir. 2005)(citations 

omitted). (“‘[A] tip from a known, albeit unproven, informant 

coupled with subsequent corroboration of the tip’s details’ can 

provide reasonable suspicion.”); See also Medlock, 146 Fed. 

App’x. at 472 (holding that because the officer had a reasonable 

suspicion to conduct a stop-and-frisk search, the district court 

correctly denied the motion to suppress evidence). 

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During the Terry frisk of Smith in this case, the officers 

discovered a black gun on Smith’s waistband and he was arrested 

for having a pistol without a pistol permit. (Doc. 52 at 43).

While conducting a safety search of Smith incident to his

arrest, officers discovered approximately 19 grams of crack 

cocaine in a plastic bag in Smith’s pants pocket. (Id.). Given 

these facts, there was simply no basis for a motion to suppress; 

thus, defense counsel’s decision not to file such a motion was 

reasonable under professional standards. See Chandler v. United 

States, 218 F.3d 1305, 1315 (11th Cir. 2000) (stating that, for 

a petitioner to successfully argue an ineffective assistance 

claim, he must "establish that no competent counsel would have 

taken the action that counsel did take"). Because Smith cannot 

show that his attorney’s performance was deficient, that there 

was a reasonable probability that the motion to suppress would 

have been granted, or that he was prejudiced by the alleged 

deficient performance, this claim is due to be denied. 

ii. Failure to Advise of Viable Defense

Smith’s second claim is that his attorney failed to advise 

him of a viable defense before advising him to plead guilty. In 

this section of his motion, Smith repeats many of the vague and 

conclusory allegations of ineffective assistance of counsel that 

he made against his attorney in his first claim. Smith fails to 

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explain what “viable defense” he is referring to and how he was 

prejudiced by this alleged deficient performance. Instead, he 

asserts that his attorney “failed to make an adequate 

investigation of the relevant facts and Fourth Amendment 

jurisprudence,” and failed to “conduct an adequate analysis of 

the relevant laws.” (Doc. 52 at 36). There is nothing in the 

record that suggests that Smith’s trial counsel failed to 

conduct a proper investigation of the facts and make an adequate 

analysis. As the Government notes in its Response, the agreed 

upon facts contained in the parties’ factual resume is 

substantially similar to those contained in the police report 

attached to Smith’s motion to vacate. (Doc. 57 at 4). Further, 

during the guilty plea colloquy, Smith also acknowledged that 

the Government could prove the facts contained in the factual 

resume. (Doc. 49). He also acknowledged that his attorney fully 

discussed the charges and his case with him. (Doc. 49 at 6). 

Smith’s argument that his attorney was not familiar with 

the case is a vague and conclusory assertion and accordingly, 

must fail. See Randolph v. McNeil, 590 F.3d 1273, 1276 n.1 

(11th Cir. 2009) (holding that “conclusory assertions” will not 

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

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

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

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

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

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

assistance where movant had not indicated what a more thorough 

investigation by his attorney would have revealed or how any 

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

Smith has not met the Strickland standard and this claim must 

also fail. 

III. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2255 

Proceedings, the undersigned recommends that a certificate of 

appealability in this case be DENIED. 28 U.S.C. § 2255, Rule 

11(a) (“The district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the 

applicant.”). The habeas corpus statute makes clear that an 

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

habeas corpus petition only where a circuit justice or judge 

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

A certificate of appealability may be issued only where “the 

applicant has made a substantial showing of the denial of a 

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

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

procedural grounds without reaching the merits of an underlying 

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

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

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debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct 

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

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

petition is being denied on the merits of an underlying 

constitutional claim, a certificate of appealability should be 

issued only when the petitioner demonstrates “that reasonable 

jurists would find the district court’s assessment of the 

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

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

showing of the denial of a constitutional right, a demonstration 

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

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

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

the petition should have been resolved in a different manner or 

that the issues presented were adequate to deserve encouragement 

to proceed further.”) (internal quotation marks omitted); accord

Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 

L. Ed. 2d 931 (2003).

Smith’s claims do not warrant the issuance of a Certificate 

of Appealability. Reasonable jurists could not debate whether 

Smith’s claims alleging ineffective assistance of counsel should 

be resolved in a different manner or deserves to proceed 

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further. The recommendation that Smith’s claims be denied is 

based on the straightforward application of clear Circuit 

precedent, and no reasonable jurist could differ on the 

appropriate disposition of his claim on the record presented. 

It is thus recommended that the Court deny any request for a 

Certificate of Appealability.

IV. CONCLUSION

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

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

52) be denied, that his motions for an evidentiary hearing 

(Docs. 69. 71. 72) be denied, that this action be dismissed, and 

that judgment be entered in favor of Respondent, the United 

States of America, and against Petitioner, Eddie Lamanquil 

Smith. In addition, the undersigned Magistrate Judge is of the 

opinion that Smith is not entitled to issuance of a Certificate 

of Appealability, and is further not entitled to proceed in

forma pauperis on appeal. It is so recommended.

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. § 

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636(b)(1); Fed.R.Civ.P. 72(b); S.D. ALA GenLR 72(c). The parties 

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

failing to object to a magistrate judge’s findings or 

recommendations contained in a report and recommendation in 

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

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

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

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

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

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

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

specific finding or recommendation to which objection is made, 

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

Magistrate Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by 

reference or refers to the briefing done by the Magistrate Judge 

is not specific. 

DONE this 15th day of April, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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