1

 For simplicity, the court will refer to the criminal case file in identifying documents,

and will refer to Mr. Wingo as ‘defendant’.

2

 U.S. v. Booker, 543 U.S. 220 (2005). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA *

 * CRIM. ACTION NO. 05-0132-CG

v. *

* CIVIL ACTION NO. 07-0071-CG

WILLIAM LESLIE WINGO, III *

*

ORDER

Defendant, through retained counsel, has filed a Motion to Vacate, Set Aside, or Correct

Sentence (Doc. 91)1

 pursuant to 28 U.S.C. §2255, raising six grounds for relief: 1) that the

defendant’s waiver of the right to appeal and to collaterally attack the sentence, contained in the

written plea agreement, was not knowingly or voluntarily made due to ineffective assistance of

counsel; 2) that counsel was ineffective in relation to the guilty plea in that a) counsel advised

defendant to accept the plea before seeing discovery, b) counsel advised defendant that he would

receive approximately seven years imprisonment, c) at sentencing, counsel withdrew his

objections to the drug amounts and Guidelines calculations contained in the presentence

investigation report, d) counsel inaccurately assured defendant concerning various issues, and e)

counsel failed to meet with defendant concerning the plea until shortly before the hearing; 3) that

the court erred in determining the sentence, citing U.S. v. Booker2

; 4) that the court erred in

treating the Sentencing Guidelines as mandatory, citing U.S. v. Booker; 5) that the court erred by

basing the sentence on findings made under a standard other than beyond a reasonable doubt;

and 6) that the court erred by sentencing defendant to a term of imprisonment greater than

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2

necessary to achieve the goals of imprisonment, citing U.S. v. Booker.

Factual Background

Defendant was charged in a five-count indictment with conspiracy to possess with intent

to distribute methamphetamine, conspiracy to possess with intent to distribute a mixture and

substance containing a detectable amount of methamphetamine, possession with intent to

distribute methamphetamine, possession of pseudoephedrine with intent to manufacture

methamphetamine, and possession with intent to distribute methamphetamine. On June 23,

2005, defendant entered into a written plea agreement and factual resume with the United States,

agreeing to plead guilty to count two of the indictment, conspiracy to possess with intent to

distribute a mixture and substance containing a detectable amount of methamphetamine. The

plea agreement contained a limited waiver of defendant’s right to appeal and to collaterally

attack his sentence; the waiver contained exceptions for a sentence imposed in excess of the

sentencing guideline range, a sentence in excess of the statutory maximum, or a claim of

ineffective assistance of counsel. A plea hearing was held on June 23, 2005; the court accepted

defendant’s plea to Count Two of the indictment following a Rule 11 plea colloquy. The court

found that defendant’s plea was knowing and voluntary.

Following the plea, the probation officer assigned to defendant’s case presented the

presentence investigation report, containing the details of the preliminary calculation of the

defendant’s advisory Guideline range pursuant to the federal Sentencing Guidelines. 

Defendant’s attorney filed written objections to the PSI prior to the hearing. The objections

asked that the court (1) impose a reasonable sentence sufficient, but not greater than necessary,

to achieve the purposes of sentencing; (2) to recommend that the Bureau of Prisons allow

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defendant to participate in drug treatment; (3) to grant a three level reduction for acceptance of

responsibility; (4) consider only the type of methamphetamine proven beyond a reasonable

doubt; (5) consider the advisory guidelines along with 18 U.S.S.G. §3553(a). At the sentencing

hearing, defendant’s counsel withdrew the objections due to the Government’s recommendation

of a downward departure. The court found the appropriate guidelines range to be 169 to 210

months, and granted a downward departure on the Government’s motion. The court sentenced

defendant to 160 months imprisonment, a four year term of supervised release, and a $100.00

special assessment.

Defendant filed a direct appeal. The government filed a Motion to Dismiss the appeal on

the basis of the appeal waiver provision of the plea agreement. The Court of Appeals granted the

motion to dismiss on August 1, 2006. Defendant filed the instant petition on January 29, 2007. 

There is thus no issue concerning the timeliness of defendant’s motion.

Habeas Standard

Habeas relief is an extraordinary remedy which “may not do service for a [ ] [direct]

appeal.” U.S. v. Frady, 456 U.S. 152, 165 (1982). A defendant who has waived or exhausted his

right to appeal is presumed to stand “fairly and finally convicted.” Id. at 164. Unless a claim

alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained

extremely limited. Addonizio v. U.S., 442 U.S. 178, 185 (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. U.S., 598

F.2d 439, 441 (5th Cir. 1979).

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In general, claims not raised on direct appeal may not be considered on collateral attack. 

A petitioner can, however, overcome his procedural default of claims not raised on direct appeal. 

The burden a petitioner must meet differs, depending upon the type of claim he raises. First,

“nonconstitutional claims can be raised on collateral review only when the alleged error

constitutes a fundamental defect which inherently results in a complete miscarriage of justice

[or] an omission inconsistent with the rudimentary demands of fair procedure.” Burke v. U.S.,

152 F.3d 1329, 1331 (11th Cir. 1998) (citations and internal quotations omitted). A petitioner’s

burden with regard to constitutional claims not presented on direct appeal is slightly less

stringent. Constitutional claims may be considered if the petitioner can “show cause excusing

his failure to raise the issues previously and actual prejudice resulting from the errors.” Cross v.

U.S., 893 F.2d 1287, 1289 (11th Cir. 1990); see also Lynn v. U.S., 365 F.3d 1225, 1234 (11th

Cir. 2004).

One way a petitioner may overcome a procedural default is by demonstrating that the

default was due to constitutionally ineffective performance by counsel. Cross, 893 F.2d at 1290. 

To establish ineffective assistance of counsel, a petitioner “must show that his attorney’s

performance was deficient and that the deficiency was prejudicial.” Id. However, “[c]onclusory

allegations of ineffective assistance are insufficient” Wilson v. U.S., 962 F.2d 996, 998 (11th

Cir. 1992) (quoting U.S. v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991)). Furthermore, “it is

axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective

assistance.” Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994).

Murray [v. Carrier, 477 U.S. 478, 488 (1986)] teaches that a prisoner collaterally

attacking his conviction can establish cause for a procedural default if he can

show that “some objective factor external to the defense impeded counsel’s

efforts to comply with the ... procedural rule,” or that his attorney’s performance

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5

failed to meet the Strickland standard for effective assistance of counsel. Id. at

488, 106 S.Ct. at 2645. Choosing the second option, [defendant] brought an

independent Sixth Amendment claim of ineffective assistance of counsel. 

Because [defendant] did not pursue the first option by showing some external

cause for his procedural default, the district court should have denied the first

[court error] claim and focused its attention solely on the second [Sixth

Amendment] claim.

Reece v. U.S., 119 F.3d 1462, 1465 (11th Cir. 1997).

A petitioner can establish cause for a procedural default if he can show that “some

objective factor external to the defense impeded counsel’s efforts to comply with the ...

procedural rule,” or that he received ineffective assistance of counsel with regard to that claim. 

Murray v. Carrier, 477 U.S. 478, 488 (1986). An attorney’s performance may be found

ineffective in the constitutional sense only if “counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).

When reviewing whether an attorney is ineffective, courts should always presume

strongly that counsel’s performance was reasonable and adequate. ... Even if

many reasonable lawyers would not have done as defense counsel did at trial, no

relief can be granted on ineffectiveness grounds unless it is shown that no

reasonable lawyer, in the circumstances, would have done so. This burden, which

is petitioners’ to bear, is and is supposed to be a heavy one. And, we are not

interested in grading lawyers’ performances; we are interested in whether the

adversarial process at trial ... worked adequately. Therefore, the cases in which

habeas petitioners can properly prevail on the ground of ineffective assistance of

counsel are few and far between.

Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (internal quotations and citations omitted).

Analysis

Appeal Waiver

Defendant asserts that the appeal waiver which he signed as part of the plea agreement

was nonetheless not knowingly and voluntarily made. 

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 The validity of a sentence-appeal waiver is a question of law that we review de

novo. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). We have

consistently held that a sentence-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) (citing cases). In order to establish that the waiver was knowing

and voluntary, the government must demonstrate that either “ ‘(1) the district

court specifically questioned the defendant about the waiver during the plea

colloquy, or (2) the record clearly shows that the defendant otherwise understood

the full significance of the waiver.’ ” United States v. Grinard-Henry, 399 F.3d

1294, 1296 (11th Cir.) (citation omitted), cert. denied, 544 U.S. 1041, 125 S.Ct.

2279, 161 L.Ed.2d 1074 (2005).

U.S. v. Jones, 200 Fed.Appx. 915, 921 (11th Cir. 2006). 

Defendant claims that he did not understand the appeal waiver provision and blames his

attorney for his alleged lack of comprehension. However, his current claims contradict his prior

sworn testimony during the plea colloquy. The record clearly establishes that the court

specifically questioned him about the waiver; that is sufficient under binding circuit precedent. 

In response to questions from the court, defendant affirmed that he had had an opportunity to

discuss the plea agreement with his attorney prior to the hearing, that he understood its terms,

that he understood that his plea agreement contained an appeal waiver. With regard to the

waiver, the court asked defendant if he understood that he had waived all rights to appeal except

that he had 

reserved the right to contest on appeal or in a post-conviction proceeding only if I

impose punishment in excess of the statutory maximum, if I impose punishment

that constitutes an upward departure from the guideline range, or if you have a

claim of ineffective assistance of counsel. Do you understand that you have

waived all other rights to appeal except those three that we’ve just talked about in

your plea agreement?

Doc. 81 at 11. Defendant responded affirmatively.

Based on the full colloquy, the court determined that the defendant’s plea was knowing

and voluntary. That determination necessarily included defendant’s execution of the appeal

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waiver within the written plea agreement. In this Circuit, courts 

apply a ‘strong presumption’ that statements made by a defendant during his plea

colloquy are true, United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994);

therefore, “when a defendant makes statements under oath at a plea colloquy, he

bears a heavy burden to show his statements were false.” United States v. Rogers,

848 F.2d 166, 168 (11th Cir. 1988).

U.S. v. Cardenas, 2007 WL 2119918 at *2 (11th Cir. 2007). Defendant has not alleged facts

sufficient to overcome this strong presumption. 

Defendant now claims that he was confused by the format of the joint plea hearing with

his co-defendant, that his attorney had not met with him to prepare him for the plea until shortly

before the hearing, and that his attorney had not realized, at the time he recommended taking the

plea, that the evidence against defendant consisted principally of the testimony of two

cooperating witnesses. Defendant offers no indication how the format of the plea colloquy

confused him, and does not tie it in any way to his understanding of the appeal waiver provision;

if defendant’s counsel had not made its terms clear to defendant prior to the hearing, the court’s

explanation certainly did. Defendant had more than two years of college education; he has

shown no particular difficulty in reading, or in comprehending simple statements. The court told

defendant that he had waived all right to appeal or collaterally attack his sentence, and then

described three simple exceptions. If defendant somehow had misunderstood the court’s

description of the exceptions, as well as the straight-forward language describing it in the plea

agreement, he would have been left with at least an understanding of the general rule–that he had

waived all rights to appeal. 

Similarly, his attorney’s failure to meet with him prior to the plea hearing does not seem

to involve his understanding of the written plea agreement which included the appeal waiver. 

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Regardless, to make a knowing and voluntary waiver of a right, a defendant need not understand

every nuance and potential permutation. Having told the court under oath that he had the

opportunity to discuss the plea agreement with his attorney, and that he understood the appeal

waiver, something considerably more compelling is required than generalized allegations of

confusion or lack of sufficient attorney guidance on some unidentified aspect of his plea. 

Further, his complaints that he did not know that the government’s proof consisted solely

of testimony by the two witnesses, and that he would have gone to trial if he had known that fact,

are irrelevant to his claimed misunderstanding of the appeal waiver. In addition, even were the

court willing to subject this attorney-drafted motion to the liberal construction allowed to pro se

litigants – a step the court declines to take – and were the court further to find that defendant had

thus also raised a claim that his whole plea was involuntary because he did not know of the

alleged paucity of proof, defendant would have failed to have adequately supported his motion. 

The defendant’s factual premise is incorrect; the testimony of his prior customers was only a part

of the case against him. According to the factual resume, defendant was found in possession of a

significant amount of pure methamphetamine in small bags as if for distribution, carrying

equipment into a functional meth lab set up in a shed owned by defendant’s parents. The lab

contained approximately five ounces of drying methamphetamine and a pseudoephedrine pill

soak. Additionally, the authorities found more methamphetamine and digital scales in

defendant’s car, and additional components and equipment to manufacture and market

methamphetamine in his possession. Even without the testimony of two people to whom

defendant had previously sold methamphetamine, the physical evidence was strong. Their

testimony was clearly not the only evidence against defendant.

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3

 U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004).

9

Defendant’s argument that his execution of the appeal waiver was not knowingly or

intelligently given is without merit and is hereby DENIED.

Remaining substantive claims

Having again found defendant’s appeal waiver to have been knowingly and voluntarily

made, the court finds defendant’s remaining substantive claims to have been waived. In its

response to the petition, the government identifies the issues defendant raised in his direct

appeal: (1) whether his sentence was unconstitutional in light of the recent decisions in Booker

and Blakely3; (2) whether this court treated the guidelines as mandatory; (3) whether he was

entitled to an acceptance of responsibility reduction; and (4) whether the type of

methamphetamine involved in the case should have been proven beyond a reasonable doubt. 

The Court of Appeals held that these issues were within the scope of the waiver provision and

were not within any of the exceptions provided in the plea agreement. That holding is binding

on this court and precludes defendant from raising those issues on collateral attack under the

collateral attack provision of the appeal waiver. Further, to the extent, if any, that defendant’s

remaining substantive claims may be deemed not to have been raised and dismissed on direct

appeal, they are clearly barred by the waiver provision itself. Accordingly, the court will not

consider defendant’s claims, numbered three, four, five and six in the instant motion. Relief on

those claims is DENIED.

Ineffective Assistance of Counsel

Defendant also claims that he received constitutionally inadequate representation from

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4

 The government has only addressed defendant’s claim of ineffective counsel in

connection with the appeal waiver provision of the guilty plea. The court nonetheless finds

defendant’s other grounds for his claim of ineffective assistance to be without merit.

10

his attorney.4 He first asserts that counsel advised him to accept the plea before seeing

discovery. Despite his claim that he would not have pled guilty had he known that the

government’s evidence consisted only of testimony from two people to whom defendant had

previously sold methamphetamine, defendant has failed to demonstrate either prejudice or

deficient performance. As discussed above, defendant’s factual foundation is inaccurate. The

physical evidence is significant and appears to have been sufficient to support a conviction even

if the former customers’ testimony had been subjected to cross-examination and completely

discredited. Regardless, the existence of that physical evidence utterly contradicts the factual

assumption at the core of defendant’s argument both as to the performance of his attorney and as

to defendant’s willingness to risk trial on all counts. 

Defendant next claims that his attorney advised him and his family that he would receive

approximately seven years imprisonment. Again, defendant can not demonstrate prejudice. 

Even if defendant were able to prove that his attorney made a promise rather than merely

estimating the time to be served under a guilty plea, the court clearly informed defendant that

any such estimates were unreliable, that a final calculation of the guideline range could not be

made until after the presentence report was completed and the parties had an opportunity to

object, and that the court was not bound to sentence defendant within the guideline range but

could depart upward or downward, and that the guidelines are advisory and do not control the

sentence the court imposed. Defendant stated that he understood each of those matters. Doc. 81

at 9-10. Thus, regardless whether defendant’s attorney made an estimate which later turned out

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5

 Doc. 43, Plea Agreement at 4 and attached Factual Resume at 2-3.

11

to be lower than the sentence imposed, and assuming that such an estimate could be deemed to

have constituted deficient performance, defendant was nonetheless fully informed prior to

entering his plea that he faced the possibility of a higher sentence, bounded only by the range set

by the relevant statute.

Defendant next claims that his attorney was ineffective in that he inaccurately assured

defendant prior to the sentencing that he was dealing with the drug quantities stated in the PSI

and that, at sentencing, counsel not only did not successfully oppose the government’s drug

quantity evidence but withdrew his written objections to that evidence. The plea agreement

clearly stated that the government and defendant had no agreement as to amount and that the

government was free to represent its position at sentencing, that the government could “provide

all relevant sentencing information” for inclusion in the PSI and to “allocute fully at the time of

sentencing.”5

 In light of these provisions, reasonably competent counsel could readily have

determined that his prior objections were meritless, and thus decided to dismiss them. Further,

defendant can not demonstrate prejudice. He had pled guilty prior to the issuance of the PSI and

thus can not assert that he would not have pled guilty if his attorney had not misled him about

the likelihood of success in avoiding the increased sentence in the event the court accepted that

evidence. Circuit precedent clearly establishes that the court may consider evidence at

sentencing on the quantity of drugs. See e.g. U.S. v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir.

2001) (upholding use of hearsay evidence of drug quantity at sentencing). Thus, not only was it

appropriate to withdraw the objections to that evidence, defendant can not demonstrate that he

would have prevailed had his attorney pursued that objection. 

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12

Defendant mentions, in connection with the claim concerning objection to the drug

amounts, that counsel also failed to object to the PSI’s calculations of the guideline range. 

However, defendant does not identify what error the PSI purportedly contained. Defendant’s

allegations are insufficient to establish that his attorney was ineffective for failing to object for

no apparent purpose.

Defendant finally contends that his attorney was ineffective because he failed to meet

with defendant concerning the plea until shortly before the hearing. As discussed above,

defendant has shown no prejudice from this alleged oversight. Defendant does not claim that his

attorney did not discuss the plea with him when it was proposed and before accepting it on his

client’s behalf. He does not allege that he did not have an opportunity to read the plea agreement

or discuss it with his attorney: any such claim would have been belied by his testimony at the

plea hearing. He does not identify what additional information he should have received prior to

the hearing nor any particular prejudice from the alleged failure to meet for a longer period of

time. To be voluntary and knowing, (1) the guilty plea must be free from coercion; (2) the

defendant must understand the nature of the charges; and (3) the defendant must know and

understand the consequences of his guilty plea. U.S. v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.

2005). Defendant has failed even to allege, let alone to prove, that his attorney’s failure rendered

his plea involuntary. 

For the preceding reasons, defendant’s claim that his attorney was ineffective is

DENIED on all grounds raised by defendant.

Conclusion

The court finds that defendant’s plea, which included his limited waiver of the right to

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13

appeal and collaterally attack his sentence, was knowingly and voluntarily entered, and rejects

his claim concerning his plea agreement to the contrary. As such, that waiver precludes

defendant from raising any of the substantive challenges to his sentence contained in claims 3

through 6 in his § 2255 petition. Nor does the court find any merit to defendant’s claim that his

attorney was constitutionally ineffective. Accordingly, it is hereby ORDERED that defendant’s

Motion to Vacate, Set Aside or Correct Sentence is DENIED.

DONE and ORDERED this the 22nd day of August, 2007.

/s/ Callie V. S. Granade 

CHIEF UNITED STATES DISTRICT JUDGE

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