IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BLADIMIR RIASCOS ARBODELA, *

 *

Petitioner, *

v. * CRIMINAL NO. 10-00179-CG

* CIVIL ACTION NO. 12-00648-CG-B

UNITED STATES OF AMERICA, *

*

Respondent. *

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner Bladimir Arbodela’s 

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

§ 2255 (Doc. 115), and the Government’s response in opposition 

thereto. (Doc. 122). This action was referred to the 

undersigned Magistrate Judge for report and recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules 

Governing Section 2255 Cases and is now ready for consideration.1 

Because the record is adequate to dispose of this matter, no 

evidentiary hearing is required2. Having carefully reviewed the 

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

presided over the guilty plea proceeding during which Arbodela 

pled guilty to Count One of the indictment. Judge Granade also 

presided over the sentencing, which was conducted on December 

22, 2011. This matter has been referred to the undersigned 

Magistrate Judge for entry of a Report and Recommendation. The 

undersigned has reviewed Arbodela’s motion and related documents 

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

fully familiarized herself with the proceedings before Judge 

Granade. Based upon that review, the undersigned makes the 

following report and recommendation.

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

every time a § 2255 petitioner simply asserts a claim of 

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record, it is recommended that Arbodela’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, Bladimar Arbodela.

I. BACKGROUND

In July 2010, Arbodela was charged with conspiracy to 

possess with intent to distribute more than 5 kilograms of 

cocaine in violation of 21 U.S.C. § 846 (count one), possession 

with intent to distribute cocaine in violation of 2 U.S.C. § 

841(a)(1) (counts two and three) and possession with intent to 

distribute 18 grams of crack cocaine in violation of 21 U.S.C. § 

841(a)(1) (count four). (Doc. 1). Arbodela was appointed 

counsel and arraigned on the charges. (Docs. 16, 18). On 

September 2, 2010, the Government filed an Information advising 

that due to Arbodela’s prior felony drug conviction, he was 

subject to enhanced penalties provisions contained in 21 U.S.C. 

§§ 851 and 841(b)(1)(A),(B) and (C). (Doc. 25) 3 . Shortly 

 

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

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

patently frivolous claims or those which are based upon 

unsupported generalizations. Nor is a hearing required where the 

petitioner’s allegations are affirmatively contradicted by the 

record.”)(citation omitted).

3 The record reflects that Arbodela was previously convicted in 

this Court of conspiracy to possess with intent to distribute 

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thereafter, on September 21, 2010, Arbodela entered into a 

negotiated plea agreement with the Government. (Doc. 39-1). In 

the plea agreement, the parties agreed that Arbodela was 

involved in excess of 500 grams of cocaine, and that he would be 

subject to the statutory penalties prescribed in 21 U.S.C. § 

841(b)(B) rather than those prescribed in the indictment. (Id.). 

The plea agreement also provided, in relevant part, as 

follows:

PENALTY

11. The maximum penalty the Court could impose as to 

Count 1 of the Indictment is:

a. 10 years to life imprisonment; 

b. A fine not to exceed $1,000,000.00 dollars;

c. A term of supervised release of 8 years, 

which would follow any term of imprisonment. 

If the defendant violates the conditions of 

supervised release, he could be imprisoned 

for the entire term of supervised release; 

d. A mandatory special assessment of $100.00.

...

LIMITED WAIVER OF RIGHT TO APPEAL

AND WAIVER OF COLLATERAL ATTACK

21. As part of the bargained–for exchange 

represented in this plea agreement, and subject 

to the limited exceptions below, the defendant 

knowingly and voluntarily waves the right to 

file any direct appeal or any collateral attack, 

including a motion to vacate, set aside, or 

 

cocaine. See 04-00147-CB. Thus, he was subject to the enhanced 

penalties set forth in 21 U.S.C. § 841.

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correct sentence under 28 U.S.C. § 2255. 

Accordingly, the defendant will not challenge 

his guilty plea, conviction, or sentence 

(including a sentence imposed on revocation of 

probation or supervised release) in any district 

court or appellate court proceedings.

a. EXCEPTIONS. The defendant reserves the right 

to timely file a direct appeal challenging:

(1) any sentence imposed in excess of the 

statutory maximum;

(2) any sentence which constitutes an upward 

departure or variance from the advisory 

guideline range.

(Id., at 3, 10-11).

Appearing before Arbodela’s signature line on page 12 of 

the Agreement is this paragraph: 

I have consulted with my counsel and fully 

understand all my rights with respect to the 

offense charged in the Indictment pending against 

me. I have read this Plea Agreement and carefully 

reviewed every part of it with my attorney. I 

understand this agreement, and have voluntarily 

agree to it. I hereby stipulate that the Factual 

Resume, incorporated herein, is true and accurate 

in every respect, and that had the matter proceeded 

to trial, the United States could have proved to 

same beyond a reasonable doubt.

(Id., at 12).

On September 23, 2010, the Court conducted a plea colloquy 

pursuant to Fed. R. Crim. P. 11(b). (Docs. 46, 139). Arbodela

was represented by counsel and testified, under oath, that he 

understood each of the rights set forth in the plea agreement. 

(Doc. 139 at 7). Upon questioning, Arbodela acknowledged that 

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the facts asserted were true and were sufficient for a jury to 

find him guilty of count one as charged in the indictment. 

Arbodela also acknowledged that he had read and understood the 

plea agreement, and that he had reviewed it with his attorney. 

(Id.). He further acknowledged that he understood that if he 

pleaded guilty, he might lose valuable civil rights and 

benefits, and could face possible deportation. (Id., at 9). In 

addition, acknowledged that if convicted of count one, the 

maximum the court could impose was a minimum of 10 years to 

life, a fine not to exceed one million, a supervised release 

term up to eight years, and a mandatory special assessment of 

$100. (Id., at 10-11). When questioned regarding the 

voluntariness of his plea, and whether any promises had been 

made to him apart from what was contained in the plea agreement, 

Arbodela acknowledged that his plea was voluntary and that no 

promises apart from the agreement had been made to him. (Id., at 

7). The Court found that Arbodela’s plea was made knowingly, 

feely, and voluntarily, and that the facts admitted by him were 

sufficient to support the plea. Accordingly, the Court 

adjudicated Arbodela guilty of count one, and the remaining 

counts were dismissed. (Id., at 18). 

The record shows that the Presentence Investigation Report 

(“PSR”) calculated a Total Offense Level of 33, a Criminal 

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History Category of IV and a resulting guideline range of 188 to 

2354 . (Doc. 99 at 11, 17). The Government petitioned the Court 

pursuant to 5k1.1 of the U.S. Sentencing Guidelines and 18 

U.S.C. § 3553(e) for a downward departure of Arbodela’s sentence 

based on the substantial assistance he provided. (Docs. 98 at

141). Specifically, the Government requested a departure from 

the low-end guideline range of 188 to a low-end range of 94. 

(Id.). At the sentencing hearing conducted on December 22, 

2011, the Court announced a sentence of 80 months’ imprisonment 

as to count one and 8 years of supervised release5. (Doc. 141 at 

10-11.). Arbodela did not appeal his conviction or sentence.

Arbodela signed and placed the instant pro se § 2255 motion 

with prison officials for mailing on October 2, 2012. (Doc. 115 

 4 The PSR, which was adopted by the Court, reflects that Arbodela 

was involved with the distribution of at least 53.578 kilograms 

of cocaine and 8.42 grams of crack cocaine, for a total 

marijuana equivalency of 10,745.66 kilograms. (Doc. 99 at 10-

11). This resulted in a base offense level of 36 pursuant to 

U.S.S.G. §2D1.1(c)(2). Arbodela received a 3 point deduction 

for acceptance of responsibility under U.S.S.G. §3E.1(a) and (b) 

thus resulting in a total offense level of 33.

5 Arbodela was also before Judge Granade on a petition for 

revocation of his supervised release in Case No. CR 04-00147. 

The Court found that Arbodela violated the terms of his 

supervised release and sentenced him to a term of 33 months’

imprisonment, which was to run consecutive to the sentence 

imposed in the instant case. Arbodela did not appeal that 

sentence and his 2255 petition does not raise any issue with 

respect to the revocation of his supervised release and the 

sentence imposed. (Doc. 141 at 13-15).

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at 20). Arbodela’s motion is not the model of clarity, however, 

as best the Court can discern, he appears to raise the following 

grounds for relief: 1) the indictment contained a jurisdictional 

defect because it does not contain all the essential elements of 

the offense charged; namely, the specific drug amount of 280 

grams of cocaine, (Doc. 115 at 8, 9-10, 15-16), 2) defense 

counsel was ineffective because she failed to inform him of the 

potential deportation consequences of his guilty plea (Doc. 115 

at 4), 3) defense counsel was ineffective for advising him 

against taking a plea offer involving 280 grams of cocaine 

without enhancement (Doc. 115 at 5, 23-24), and 4)defense 

counsel was ineffective for not securing his family’s 

participation in a witness protection program (Doc. 115 at 5)6. 

II. DISCUSSION

The limited scope of habeas relief is well established, as 

this Court has recognized:

 6 On the 2255 form, Arbodela asserts in two spaces that his 

defense counsel “failed all Ground to appeal the sentence”; 

however, nowhere in his 59 pages of rambling assertions does 

Arbodela develop this argument nor offer any facts to explain or 

support his assertion. Because he has not developed this 

argument, he is deemed to have abandoned it. Johnson v. Razdan, 

2014 U.S. App. LEXIS 8152, 2014 WL 1689021 at *2 (llth Cir. Apr. 

30, 2014) (“Although pro se briefs are to be construed 

liberally, a pro se litigant who offers no substantive argument 

on an issue in his initial brief abandons that issue on 

appeal.”); Timson v. Sampson, 518 F.3d 870, 874 (while pro se

briefs are construed liberally, issues not briefed on appeal are 

deemed abandoned.) 

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 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).

In his first claim, Arbodela argues that the court was 

without jurisdiction to impose his sentence because the 

indictment contained a “jurisdictional defect”. (Doc. 115 at 8, 

10). The gist of Arbodela’s argument appears to be that the 

indictment was defective because it does not contain a specific 

amount of drugs, namely 280 grams; thus, it lacks an essential 

element, and it fails to reference 841 U.S.C. § 841(b). 

The undersigned observes, as a preliminary matter, “[a] 

jurisdictional defect is one that strips the court of its power 

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to act and makes its judgment void.” McCoy v. United States, 266 

F.3d 1245, 1249 (llth Cir. 2011). In United States v. Cotton,

535 U.S. 625, 627-28, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002), 

the Supreme Court made clear that omissions in an indictment 

which fail to include an essential element do not deprive a 

court of its power to adjudicate a case; thus, are not 

jurisdictional. 535 U.S. at 631; United States v. Maldenaldo 

Sanchez, 269 F.3d 1250, 1273-75 (llth Cir. 2001), abrogated in 

part on other grounds by United States v. Duncan, 400 F.3d 1297, 

1308 (11th Cir. 2005) (Eleventh Circuit held that even though 

the indictment failed to allege an element of the charged 

offense, namely the drug-quantity element, such did not 

constitute a jurisdictional defect that deprived the Court of 

the power to adjudicate the case). Thus, Arbodela’s assertion 

that lack of a drug quantity in the indictment deprived this 

court of jurisdiction is without merit.

Further, §841(a)(1) provides that “it shall be unlawful for 

any person knowingly or intentionally . . . to manufacture, 

distribute, or dispense, or possess with intent to manufacture, 

distribute, or dispense, a controlled substance.” 21 U.S.C. § 

841(a)(1). §846 provides that “any person who attempts or 

conspires to commit any offense defined in this subchapter 

[including § 841(a)] shall be subject to the same penalties as 

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those prescribed for the offense, the commission of which was 

the object of the attempt or conspiracy.” 21 U.S.C. § 846. 

Together, these statutes provide that a person may violate § 846 

by conspiring to violate §841(a)(1). For purposes of a 

conviction under §846, neither the type of drug nor the quantity 

of that drug is an element of the offense of conspiracy to 

violate § 841(a)(1). United States v. Carson 520 Fed. App’x 874 

(llth Cir. 2013); United States v. Baker, 432 F.3d 1189, 1233-34

(11th Cir. 2005) (“the government’s failure to prove the amount 

or type charged in the indictment does not merit reversal.”).

The amount and quantity of drugs only matter for purposes of § 

841(b), which “provides enhanced maximum sentences for persons 

convicted of violating §§ 841(a) or 846, depending on the 

quantity and type of drug involved.” United States v. Sanders, 

668 F.3d 1298, 1309 (llth Cir. 2012)(citing 21 U.S.C. § 841(b)). 

In this case, Arbodela’s plea agreement provided that he 

would enter a plea to the conspiracy count in the indictment, 

and in return, the agreed upon drug quantity was greater than 

500 grams. This subjected him to the penalties prescribed in 21 

U.S.C. § 841(b)(1)(B), rather then the greater statutory 

penalties that he would have faced based on the drug quantity 

alleged in the indictment7. Given that the indictment properly 

 7 Under § 841(b)(1)(B), a defendant -- like Arbodela – found, by 

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charged the offense of drug conspiracy, Arbodela’s contention 

that the indictment contained a jurisdictional defect is without 

merit. Additionally, to the extent Arbodela contends that his 

counsel was ineffective for failing to seek the dismissal of the 

indictment on this ground, this contention is likewise without 

merit8.

Arbodela’s remaining claims involve alleged ineffective 

assistance of his trial counsel. In his second claim, 

Arbodela contends that his counsel was ineffective for failing 

to advise him that a guilty plea carried a risk of deportation. 

The standard for evaluating ineffective assistance claims was 

set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). To succeed on such a claim, “the 

defendant must show that counsel’s performance was deficient, 

 

virtue of the plea agreement, to have distributed 500 grams or 

more of cocaine, after having been already convicted of a prior 

felony drug offense, was subject to a statutory penalty of 10 

years to life imprisonment. § 841(b)(1)(B). Had Arbodela been 

convicted of the drug quantity alleged in the indictment, he 

would have faced a mandatory statutory penalty of 20 years to 

life based on his prior felony conviction.

8 Although not directly addressed by the Government, it appears 

that Arbodela waived his right to attack any alleged errors with 

respect to the indictment by knowingly and voluntarily entering 

into the plea agreement. As noted, at the guilty plea hearing, 

Arbodela testified that he understood that he was waiving his 

right to file an appeal or collateral motion except if the 

sentence was in excess of the statutory maximum or if the 

sentence imposed constituted an upward departure or variance 

from the sentencing guidelines. (Doc. 139 at 12-13).

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and that the deficient performance was prejudicial. Id., 466 

U.S. at 687. The Supreme Court has held that the failure to 

inform a defendant whether a plea carries a risk of deportation 

amounts to constitutionally deficient performance. Padilla v. 

Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 176 L. Ed. 2d 284 

(2010). “Where a claim of ineffective assistance involves a 

plea agreement, to show prejudice, the defendant must show “a 

reasonable possibility that, but for counsel’s errors, he would 

not have pleaded guilty, and would have insisted on going to 

trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. 

Ed. 2d 203 (1985). In so doing, a defendant must demonstrate 

that “a decision to reject the plea bargain would have been 

rational under the circumstances.” Padilla, 599 U.S. at 371; 

Gutierrez v. United States, 2014 U.S. App. LEXIS 5519, 2014 WL 

1227482 (llth Cir. 2014). 

Based on the record before the Court, the undersigned finds 

that Arbodela’s claim must fail because he cannot establish the 

prejudice prong under Strickland. While Arbodela contends that 

his counsel failed to advise him that he faced deportation if he 

entered a guilty plea, the record reflects that at Arbodela’s 

guilty plea hearing conducted on September 23, 2010, the Court 

expressly advised him that he would be subject to deportation if 

his plea was accepted and he was convicted. (Doc. 139 at 9). 

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Arbodela acknowledged, under oath, that he understood that a 

plea carried the risk of deportation, and he elected to proceed 

with the guilty plea. (Id.). In light of this clear record 

evidence that Arbodela was advised of the risk of deportation 

before entering the guilty plea, and that armed with this 

information, he elected to proceed with his guilty plea, 

Arbodela cannot establish that he was prejudiced by his 

counsel’s failure to advise him that he faced deportation if he 

entered a guilty plea.

In his third claim, Arbodela, in reliance on Missouri v. 

Frye, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v. 

Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), asserts that 

his counsel “provided incompetent advise not to accept a plea 

offer. Defendant asserted under OATH he would have accepted 

Plea offer a substantial disparity existed between enhancement 

may be imposed with the sentence offered and the trial counsel 

did not provide a detailed credible Affidavit Explaining the 

plea offer [to] the court and Government and defendant...”. 

(Doc. 115 at 23-24). Arbodela also references a “[p]lea offer 

of Conspiracy to Possess with intent to distribute cocaine 21 

U.S.C. § 846 of the grams without enhancement.” (Id., at 5). 

While not the model of clarity, it appears that Arbodela is 

arguing that his counsel “was ineffective because she advised 

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him to reject a prior plea offer that would have held him 

responsible for only 280 grams of cocaine without the 

possibility of enhancement. In Frye and Lafler, the Supreme 

Court clarified that the Sixth Amendment right to the effective 

assistance of counsel extends specifically “to the negotiation 

and consideration of plea offers that lapse or are rejected.” In 

re Perez, 682 F.3d 930, 932 (11th Cir. 2012). The Supreme Court 

concluded that, in order to establish prejudice, a defendant 

must show a reasonable probability that but for counsel’s 

ineffectiveness: (1) “the plea offer would been presented to the 

court (i.e., that the defendant would have accepted the plea and 

the prosecution would not have withdrawn it in light of 

intervening circumstances)”; (2) “the court would have accepted 

its terms”; and (3) “the conviction or sentence, or both, under 

the offer’s terms would have been less severe than under the 

judgment and sentence that in fact were imposed.” Lafler, 132 S. 

Ct. at 1385; see Frye, 132 S. Ct. at 1409. 

In Frye, the Supreme Court held that it was ineffective

assistance of counsel for defense counsel to fail to communicate 

a formal plea offer to the defendant. Frye, 132 S. Ct. at 1408. 

In Lafler, the Court held that it was ineffective assistance of 

counsel for trial defense counsel to advise the defendant to 

reject a plea offer and proceed to trial based upon a 

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misunderstanding of the law. Lafler, 132 S. Ct. at 1390-91. 

In the instant case, Arbodela does not claim that his 

counsel failed to relay a plea offer to him. He is instead 

claiming that his counsel gave him bad advice, which caused him 

to reject a plea offer with more favorable terms, and enter into 

a later offer that was not as favorable. According to Arbodela, 

he would have pleaded to 280 gram and there would not have been 

an enhancement (presumably for his prior felony drug 

conviction). The problem with Arbodela’s claim is that the 

record is completely devoid of any evidence of a prior plea 

agreement. Aside from Arbodela’s vague and generalized 

assertion, he has not pointed to anything in the record which 

suggests, let alone demonstrates the existence of a prior plea 

offer with more favorable terms. The Government, on the other 

hand, has submitted the sworn affidavit of Arbodela’s former 

counsel who avers that the only plea offer extended by the 

Government in this case is the one that was accepted by Arbodela 

and filed with the Court. (Doc. 143-1). 

Further, the record reflects that less than two weeks after

Arbodela was arraigned, the Government, on September 2, 2010,

filed an Information which provided notification that Arbodela 

would be subject to the enhanced penalty provisions of 21 U.S.C. 

§§ 851 and 841(b)(1)(A), (B) and (C) due to his prior felony 

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drug conviction. (Doc. 25). There is absolutely nothing before 

the Court that suggests that the Government ever retreated from 

its position that Arbodela would be subject to an enhanced 

penalty, nor is there anything suggesting that the Court would 

have likely accepted a plea agreement that allowed Arbodela to 

avoid the penalty enhancement notwithstanding his prior felony 

conviction. 

Also telling is the fact that while Arbodela now contends 

that his counsel gave him bad advice regarding an alleged prior 

plea offer, the record from his guilty plea hearing reflects 

that during the plea colloquy, Arbodela was specifically asked 

whether he was satisfied with his counsel’s performance. (Doc. 

139 at 6). Not only did Arbodela fail to mention anything about 

counsel’s purported bad advice with respect to the purported 

prior plea offer, but he stated, under oath, that he was 

satisfied with his counsel’s performance. (Id.). Because 

Arbodela has not made a plausible showing regarding the 

existence of a prior plea agreement, his claim should be denied.9

In his fourth claim, Arbodela argues that his counsel was 

ineffective with regard to his family’s participation in a 

witness protection program. Although it is not entirely clear, 

 9 To the extent Arbodela possesses evidence of a prior plea 

agreement, he should include it in an objection to the instant 

report and recommendation.

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it appears that Arbodela is contending that his counsel failed 

to ensure that his family was placed in the witness protection 

program or that they remained in the program that was offered to 

them during the pendency of his case. As a preliminary matter, 

the undersigned notes that during the guilty plea hearing, 

Arbodela acknowledged that he has read the plea agreement and 

went over it with his counsel. He was also expressly questioned 

about whether anyone had promised him anything that was not 

contained in the plea agreement, and he testified under oath, 

that no one had promised him anything promises outside of the 

agreement. (Doc. 139 at 7-8). And, a searching review of the

plea agreement does not contain any provisions dealing with a 

witness protection program. (Doc. 39-1). In addition, Arbodela 

has not cited and the Court is not aware of any case authority 

that places upon defense counsel an obligation to ensure that a 

defendant’s family is placed in a witness protection program or 

is allowed to remain in such a program. Accordingly, Arbodela’s 

claim that his counsel was ineffective for not assisting with 

his family’s placement in a witness protection program is 

without merit and is due to be denied.

For the reasons detailed above, Arbodela’s claims are due 

to be denied10.

 10 In light of the undersigned’s recommendation that Arbodela’s 

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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. 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 a habeas 

petition is being denied, in 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 (2000). Where a habeas petition is 

being denied on the merits of an underlying constitutional 

 

motion be denied, his motions for disposition or final judgment 

(Docs. 124, 126, 128, 131) are moot.

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claim, a certificate of appealability 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. (“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 (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 

(2003).

None of Arbodela’s claims would warrant the issuance of a 

Certificate of Appealability in this case. For the reasons 

discussed above, he has failed to establish his ineffective 

assistance of counsel claims, and has further failed to show 

that his indictment contained a jurisdictional defect. Under the 

circumstances, reasonable jurists could not debate whether any 

of his claims should be resolved in a different manner or were 

adequate to deserve encouragement to proceed further on the 

merits. The recommendation that these claims be denied is based 

on the straightforward application of clear Circuit precedent, 

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and no reasonable jurist could differ on the appropriate 

disposition of the claims 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 

Arbodela’s § 2255 Motion to Vacate, Set Aside, or Correct 

Sentence (Doc. 115) be denied, that this action be dismissed, 

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

States of America, and against Petitioner, Bladimir Riascos 

Arbodela. In addition, the undersigned Magistrate Judge is of 

the opinion that Arbodela 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. § 636(b)(1); Fed. R. Civ. P. 72(b); 

S.D. ALA. L.R. 72.4. The parties should note that under Eleventh 

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Circuit precedent, “the failure to object limits the scope of [] 

appellate review to plain error review of the magistrate judge’s 

factual findings.” Dupree v. Warden, Attorney General, State of 

Alabama, 715 F.3d 1295, 1300 (11th Cir. 2011). In order to be 

specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for 

the objection, and specify the place in the Magistrate Judge’s 

report and recommendation where the disputed determination is 

found. An objection that merely incorporates by reference or 

refers to the briefing before the Magistrate Judge is not 

specific.

DONE this 7th day of August, 2014.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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