IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JESSE LEE ARNOLD, :

Petitioner, :

vs. : CIVIL ACTION NO. 09-0763-WS-C

UNITED STATES OF : CRIMINAL ACTION NO. 09-0002-WS

AMERICA, 

:

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Jesse Lee Arnold, a federal prison inmate proceeding pro se,

has filed a motion to vacate, set aside or correct his sentence pursuant to 28

U.S.C. § 2255 (Doc. 10). 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, and in United

States v. Arnold, CR-08-00250-WS, it is recommended that Arnold’s § 2255

motion be denied and that it be found he is not entitled to a certificate of

appealability. 

FINDINGS OF FACT

1. In May, 2008, Arnold was charged in a one-count indictment,

Case 1:09-cr-00002-WS-C Document 15 Filed 01/12/10 Page 1 of 16
1 James M. Scroggins, Esquire, was appointed to represent Arnold with respect to

his attempted escape charge on August 14, 2008. Id., Doc. 9. 

2

issued by the United States Grand Jury in the Eastern District of Texas, with

bank robbery in violation of 18 U.S.C. § 2113(a). (Doc. 1) Thereafter, in July,

2008, Arnold was charged in a one-count indictment, issued by the United

States Grand Jury in the Southern District of Alabama, with attempting to

escape from the Conecuh County Jail in Evergreen, Alabama, in violation of

18 U.S.C. § 751(a). See United States of America v. Jesse Lee Arnold,

CRIMINAL NO. 08-00250-WS, Doc. 1.1

 

2. In January of 2009, Arnold consented to the transfer of his bank

robbery case to this Court for entry of a guilty plea and sentencing. (Doc. 1

(consent to transfer of case for plea and sentence)) Because James Scroggins,

Esquire, was already representing Arnold on his attempted escape charge,

upon transfer of the robbery case, he began his official representation of

petitioner on that case as well. 

3. On January 28, 2009, petitioner entered counseled guilty pleas

to both the bank robbery charge and the attempted escape charge. (Doc. 2) 

4. The Presentence Investigation Report was initially prepared by

the Probation Office on March 20, 2009, revised on April 16, 2009, and filed

as a sealed document on April 17, 2009. (See Doc. 6) Prior to the revision and

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3

filing of same, the defendant interposed the following objections to the

Presentence Report on April 8, 2009:

§ 3E1.1. Acceptance of Responsibility

(a) If the defendant clearly

demonstrates acceptance of

responsibility for his offense,

decrease the offense level by 2

levels.

(b) If the defendant qualifies for a

decrease under subsection (a), the

offense level determined prior to

the operation of subsection (a) is

level 16 or greater, and upon

motion of the government stating

that the defendant has assisted

authorities in the investigation or

prosecution of his own misconduct

by timely notifying authorities of

his intention to enter a plea of

guilty, thereby permitting the

government to avoid preparing for

trial and permitting the government

and the court to allocate their

resources efficiently, decrease the

offense level by 1 additional level.

The U.S. Probation Office chooses to refuse the §

3E1.1(a) decrease following a post plea incident at the Monroe

County Detention Facility. Mr. Arnold does not deny that the

incident with detention officers occurred and that he responded

inappropriately to the officer’s instructions. However, this

isolated conduct while in custody is not specifically addressed

in § 3E1.1 or the Application Notes of the Commentary.

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Mr. Arnold, in a letter to Probation clearly expressed his

acceptance of responsibility which is quote[d] in part:

I know that it was wrong for me to rob the bank in

Texas and try to escape from jail. I have pled

guilty to these offenses because I am guilty and

want to get my troubles behind me. I am very

sorry that I robbed the bank in Texas and tried to

escape here in Alabama. . . . Both of these

offenses were my fault, and I am very sorry that

I got involved.

Therefore, Mr. Arnold should receive the benefit of his

early acceptance of responsibility in both cases. The offense

level computation should be amended as follows:

25. Adjusted Offense Level 24

26. Adjustment for Acceptance of

Responsibility § 3E1.1(a) -2

Adjustment for Acceptance of

Responsibility § 3E1.1(b) -1

27. Adjusted Offense Level 21

Mr. Arnold’s suggested Total Offense Level of 21

calculated at Criminal History IV would allow a sentencing

range of 57-71 months. Pursuant to local rule, counsel has

communicated with both the Assistant U.S. Attorney and the

U.S. Probation Officer regarding the above issues in an effort to

resolve the issue in dispute. Counsel submits that argument on

the issue would not appreciably extend the time presently

allocated for the sentencing hearing.

(Doc. 3, at 1-2)

5. Arnold was sentenced on April 24, 2009 to an eighty-four (84)

month term of imprisonment for bank robbery and a concurrent sixty (60)

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month term of imprisonment for attempted escape; both of these sentences

were made to run consecutive to his sentence in CR-05-00241. (See Doc. 8,

JUDGMENT IN A CRIMINAL CASE) That same date, Arnold filed written

notice of non-appeal. (Doc. 7) On this pleading, the following language

precedes Arnold’s signature: “I have been advised by the Court, and by my

attorney, of my right to appeal my conviction and sentence. I have consulted

with my attorney, who has explained the advantages and disadvantages of

taking an appeal. I have had sufficient time to consider my options, and require

no further explanation. After consideration, it is my desire to inform the Court

that I do not wish to take an appeal.” (Id.) In addition, preceding the signature

of Arnold’s attorney is the following language: “I affirm that, as counsel for

the Defendant, I have fully advised my client of the advantages and

disadvantages of an appeal, given the facts and circumstances of this case, its

procedural history, and the sentence imposed. I have had sufficient time to

consult with my client to determine whether my client’s decision is knowing

and voluntary. It is my opinion that my client’s decision to take no appeal is

both knowing and voluntary.” (Id.) 

6. On November 18, 2009, Arnold filed the present collateral attack

on his bank robbery conviction and sentence pursuant to 28 U.S.C. § 2255.

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(Doc. 10; see id. at 5 (noting his concurrent escape sentence but asserting no

challenge to same)) Therein, petitioner contends that he was denied the

effective assistance of counsel. (See id. at 4) Arnold alleges the following

instances of ineffective assistance of counsel: (1) his attorney failed to get

discovery materials; (2) his attorney failed to explore possible defenses; (3) his

attorney failed to speak to him about the case; (4) his attorney failed to

“interview prosecution witnesses, interview defense witnesses, prepare for trial

in any way or even see the indictment before he advised defendant to plea[d]

guilty”; and (5) his attorney failed to assist him in any way at sentencing. (Id.)

7. The undersigned initially entered a scheduling order which

included a request for the government to file copies of the transcripts of

Arnold’s guilty plea and sentencing proceedings. (See Doc. 12) The United

States filed its response to the § 2255 motion on November 20, 2009 and

therein requested that the Court reconsider its scheduling order in light of the

conclusory nature of petitioner’s ineffective assistance of counsel claims. (See

Doc. 13) By order dated December 1, 2009, the undersigned withdrew the

requirement that the United States file Arnold’s guilty plea and sentencing

transcripts and simply ordered petitioner to file his reply to the government’s

response on or before January 4, 2010. (Doc. 14) To date, petitioner has not

Case 1:09-cr-00002-WS-C Document 15 Filed 01/12/10 Page 6 of 16
2 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).

7

filed any reply to the government’s opposition. (See Docket Sheet)

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 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, Arnold contends that constitutionally ineffective

assistance of counsel entitles him to the relief afforded by 28 U.S.C. § 2255.2

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

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3 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).

4 “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).

8

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.

Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).3

 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).4

 In addition,

the defendant must establish that “counsel’s constitutionally

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5 “‘[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).

9

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).5

 Of course, in the context of

sentencing following entry of a guilty plea the court 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.”). 

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. Oates v. Moore, 527 U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d

Case 1:09-cr-00002-WS-C Document 15 Filed 01/12/10 Page 9 of 16
6 Arnold is not entitled to an evidentiary hearing in this case in light of his wholly

conclusory allegations. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“A petitioner is

not entitled to an evidentiary hearing . . . ‘when his claims are merely “conclusory allegations

unsupported by specifics” or “contentions that in the face of the record are wholly

incredible.”’”), cert. denied sub nom. Tejada v. Singletary, 502 U.S. 1105, 112 S.Ct. 1199, 117

L.Ed.2d 439 (1992).

7 In addition, petitioner identifies nothing specifically that his attorney did wrong at

his sentencing nor has he established that his sentence would have been different had Scroggins

represented him in some other unidentified manner during sentencing.

8 That Scroggins was well aware of the robbery charge against Arnold in Texas

cannot be gainsaid. See United States v. Arnold, 08-00250-WS, Doc. 12 (motion to continue filed

10

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. The undersigned agrees with the government that petitioner has

failed to allege, much less establish, that he was in any manner prejudiced by

counsel’s numerous alleged deficiencies of performance.6

 More specifically,

Arnold has neither alleged or established that he would have pleaded not guilty

and would have insisted on going to trial had counsel (1) procured discovery

materials, (2) explored possible defenses, (3) spoken to him about the case, (4)

interviewed prosecution and defense witnesses, (5) reviewed the indictment,

and/or (6) prepared for trial.7

 It is apparent to the undersigned that while

Scroggins perhaps did not invest much preparation time with respect to

Arnold’s robbery charge out of Texas,8

 this failure was not on account of any

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by Scroggins based upon the fact that his client was also facing charges in the Eastern District of

Texas and the parties had agreed that it was “in the interest of justice and judicial economy for

all pending cases to be handled pursuant to Rule 11 of the Federal Rules of Criminal Procedure,

and that this case be transferred for disposition [to] the Eastern District of Texas or vice versa”). 

Arnold’s assertion that Scroggins was not “appointed to this case [i.e., his robbery case]

until 19 days AFTER” he was sentenced is belied by the record. While it is true that Scroggins

was added to the docket sheet as petitioner’s attorney on May 13, 2009 (see Docket Sheet Entry

for May 13, 2009 (“Attorney update in case as to Jesse Lee Arnold. Attorney James Scroggins

for Jesse Lee Arnold added.”)), petitioner’s assertion that this docket sheet entry establishes that

Scroggins was not appointed to his robbery case until that date ignores the clear facts that

Scroggins was representing petitioner on his attempted escape charge as of August 5, 2008 and,

further, that Scroggins became petitioner’s attorney-in-fact on the robbery charge the moment

that Texas robbery charge was transferred to the Southern District of Alabama. The action of the

Clerk’s Office in adding Scroggins to the docket sheet in this case on May 13, 2009 is of no

moment and certainly cannot be regarded as establishing that Scroggins was not petitioner’s

attorney on the robbery charge prior to that date. Such an argument is nonsensical based upon

the procedural history of both of petitioner’s cases.

9 The pre-sentence report reflects not only that Texas authorities had preliminarily

identified Arnold as the individual who robbed the Beaumont Community Credit Union on April

14, 2008, based on security video recordings, but, as well, had confirmation of that preliminary

identification from the credit union employee who received the note demanding money, based on

a photographic “line-up”, that Arnold was the individual who intimidated her into giving him

$5,106 in United States currency. (See Doc. 6, at 4) 

11

deficiency of performance but rather because the government had

overwhelming evidence to obtain petitioner’s convictions of both the robbery

charge9

 and the attempted escape charge arising in this District. In other words,

it is clear that Arnold and his attorneys, both on the Texas charge of bank

robbery (Gary R. Bonneaux, Esquire) and the Alabama charge of attempted

escape (Scroggins), perceived that the premium strategy was for him to accept

responsibility and enter guilty pleas to both charges, particularly given his

Case 1:09-cr-00002-WS-C Document 15 Filed 01/12/10 Page 11 of 16
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previous bank robbery conviction in the Southern District of Alabama. The

only question for the parties was whether Arnold’s pleas of guilty would be

entered in the Eastern District of Texas or the Southern District of Alabama.

See United States v. Arnold, 08-00250-WS, Doc. 11 (“At the final pretrial

conference held this date [September 8, 2008], counsel informed the Court

that, in addition to this action in the Southern District of Alabama, Defendant

is also facing charges of bank robbery in the Eastern District of Texas.

Defendant intends to plead guilty in both actions and counsel are in the process

of determining whether Defendant will enter his plea in this District or in the

Eastern District of Texas.”). Based upon the foregoing, it is clear not only that

petitioner has not alleged or established that but for counsel’s alleged

deficiencies he would have pleaded not guilty and would have insisted on

going to trial (see Doc. 6, at 6 (“On February 9, 2009, the defendant submitted

a written letter, which stated, ‘My lawyer has informed me that you need a

letter from me concerning my thoughts on what I did in Texas and at the jail

in Evergreen. I know that it was wrong for me to rob the bank in Texas and try

to escape from jail. I have pled guilty to these offenses because I am guilty

and want to get my troubles behind me. I am very sorry that I robbed the bank

in Texas and tried to escape here in Alabama. I know I will not do anything

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10 Petitioner clearly made an astute move in pleading guilty to both charges and

receiving concurrent sentences, even though his 84-month (i.e., 7 year) sentence on the robbery

charge will not begin to run until after his completion of his 2-year sentence in CR 05-0241-WS,

because he was facing a 20-year statutory maximum sentence on his robbery charge alone. See

18 U.S.C. § 2113(a) (“Whoever, by force and violence, or by intimidation, takes, or attempts to

take, from the person or presence of another, or obtains or attempts to obtain by extortion any

property or money or any other thing of value belonging to, or in the care, custody, control,

management, or possession of, any bank, credit union, or any savings and loan association . . .

[s]hall be fined under this title or imprisoned not more than twenty years, or both.”).

13

like this again. I have been in jail too long already and once I get out, I never

want to go back again. Both of these offenses were my fault, and I am very

sorry that I got involved.’”) (emphasis supplied))10 but, as well, has not

established that Scroggins was constitutionally deficient in his representation

of him. 

5. In consideration of the foregoing, the Magistrate Judge

recommends that the Court deny Arnold’s motion to vacate, set aside or

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

6. 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

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where a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1). A certificate of appealability may issue only where “the

applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being

denied 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[,]”Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146

L.Ed.2d 542 (2000); 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 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

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to proceed further.”’”). The undersigned recommends that the Court find that

reasonable jurists could not debate whether Arnold’s § 2255 motion to vacate

should be resolved in a different manner or that the Sixth Amendment issue(s)

presented are adequate to deserve encouragement to proceed further.

Accordingly, 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 11th day of January, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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11 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). 

16

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 days11 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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