IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ADRIAN LACEY, )

 Petitioner, ) 

) CIVIL ACTION NO. 13-00413-KD

v. )

 )CRIMINAL ACTION NO. 12-00046-KD-N

UNITED STATES OF AMERICA, )

 Respondent. )

REPORT AND RECOMMENDATION

Adrian Lacey (“Lacey”), a federal prisoner proceeding pro se, has filed a 

Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Docs. 69, 

711) (the “§ 2255 Motion”) challenging his sentence in the above-styled criminal 

action. The United States of America (“Respondent”) has timely filed a response in 

opposition (Doc. 80) to the § 2255 Motion. Lacey has filed a number of replies (Docs. 

81, 82, 87) in support of his § 2255 motion,2 as well as two motions to compel 

discovery (Docs. 83, 86), a “Motion Requesting an Urgent Evidentiary 

Hearing/Motion to Amend Pending 18 USC § 2255” (Doc. 84), and a “Motion to 

Appeal Criminal Forfeiture under FRCP 32.2” (Doc. 85). The § 2255 Motion is now

under submission and is ripe for adjudication. (See Doc. 77).

These matters have been referred to the undersigned United States 

Magistrate Judge for entry of a report and recommendation in accordance with 28 

U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings 

 1 All docket citations herein refer to the docket of the criminal action noted in the style.

2 Lacey’s various requests to supplement his § 2255 motion (Docs. 71, 82, 87) are 

GRANTED.

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for the United States District Courts, and SD ALA LR 72.1(c). Upon consideration, 

and for the reasons stated herein, it is RECOMMENDED that Lacey’s § 2255 

Motion (Docs. 69, 71), as supplemented (see Docs. 81, 82, 87), be DENIED and that 

the claims therein be DISMISSED with prejudice.3 It is further 

RECOMMENDED that Lacey’s two motions to compel discovery (Docs. 83, 86), his 

“Motion Requesting an Urgent Evidentiary Hearing/Motion to Amend Pending 18

USC § 2255” (Doc. 84), and his “Motion to Appeal Criminal Forfeiture under FRCP 

32.2” (Doc. 85) all be DENIED. Finally, it is RECOMMENDED that Lacey be 

found not entitled either to a Certificate of Appealability or to proceed in forma 

pauperis on appeal.

I. Background

On March 1, 2012, the Grand Jury of this District returned a two-count 

indictment against Lacey, both arising from fraudulent activities in connection with 

the Gulf Coast Claims Facility (GCCF), which was established to administer and 

process claims arising from the Deepwater Horizon disaster in the Gulf of Mexico in 

April 2010. (Doc. 1). Count One charged use of an unauthorized access device –

namely, a GCCF claim – with intent to defraud, in violation of 18 U.S.C. § 

1029(a)(2). (See id.). Count Two charged filing a false GCCF claim in the amount of 

$50,000, in violation of 18 U.S.C. § 1341. (See id.). 

 3 The undersigned finds that an evidentiary hearing under 28 U.S.C. § 2255(b) and Rule 8 

of the Federal Rules Governing Section 2255 Cases in the United States District Courts is 

not needed in order to adequately dispose of Lacey’s § 2255 motion. As explained herein, 

Lacey has not alleged facts that, if true, would entitle him to relief.

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Lacey initially retained attorney Ronnie Williams (“Williams”) to represent 

him and entered a plea of not guilty to the charges. (See Doc. 9 at 1; Doc. 10 at 1). 

On May 3, 2012, Williams filed a Plea Agreement (Doc. 18) and Factual Resume 

(Doc. 17), both signed by the United States, Lacey, and Williams. A change-of-plea 

hearing was held on May 15, 2014, at which Lacey entered a plea of guilty to Count 

Two of the indictment. (See Doc. 20). 

Sentencing was initially set for August 17, 2012 (see id.), and on August 3, 

2012, Lacey, through Williams, filed objections (Doc. 22) to the Presentence 

Investigation Report. On August 15, 2012, Lacey filed an unopposed motion to 

continue sentencing (Doc. 27). The Court granted the motion and continued 

sentencing to November 9, 2012. (Doc. 28). 

On October 3, 2012, Williams filed a motion to withdraw as counsel for Lacey, 

citing a breakdown in the attorney/client relationship and indicating that Lacey had 

secured other counsel.4 (Doc. 29). On October 5, 2012, attorney Jason Darley 

(“Darley”) entered his appearance as retained counsel for Lacey (Doc. 30), and the 

Court granted Williams’s motion to withdraw on October 9, 2012 (Doc. 31). 

On November 5, 2012, Lacey, through Darley, filed a second unopposed 

motion to continue sentencing (Doc. 32). The Court granted the motion and initially 

 4 Lacey claims that another attorney, Daryl Blackmon, “participated in all events (i.e. 

change of plea, proffer meetings, worksheet meeting, and PSR preparation” and that 

Williams “only seen [sic] [Lacey] once which was at arraignment[,]” “never participated in 

no other court proceedings, proffer sessions or never made a jail visit[,]” and “never seen or 

spoke to [Lacey] regarding this case or plea.” (Doc. 82 at 11). Lacey also alleges that 

Blackmon was not licensed to practice in this Court at this time. According to the 

Presentence Investigation Report, however, Blackmon was Lacey’s attorney in a state drug 

charge. (Doc. 23 at 16, ¶ 58).

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continued sentencing to December 14, 2012 (Doc. 33), then later reset it to 

December 17, 2012. On December 17, 2012, pursuant to his guilty plea to Count 

Two of the indictment, Count One was dismissed, and the Court sentenced Lacey to 

forty-six (46) months in prison, to be followed by three years of supervised release. 

(Doc. 35). The Court’s written judgment was entered December 27, 2014. (See id.). 

On January 14, 2013, on motion of the Government (Doc. 40), the Court amended 

the judgment nunc pro tunc under Federal Rule of Civil Procedure 36 to impose 

restitution in the amount of $18,000 to the Deepwater Horizon Oil Spill Trust. 

(Doc. 43). 

On December 27, 2012, Lacey filed pro se a notice of appeal and motion for 

appointment of counsel, which were docketed by the Court on January 4, 2013. 

(Docs. 37, 38). Darley filed a motion to withdraw on January 13, 2013 (Doc. 42). 

The Court initially denied Darley’s motion to withdraw and Lacey’s motion for 

appointment of counsel (see Doc. 46), but, on reconsideration, granted both motions 

and appointed appellate counsel for Lacey (see Doc. 54).

On August 5, 2013, Lacey filed pro se the present § 2255 motion (Doc. 69). As 

Lacey’s direct appeal was pending at the time, the Court ordered Lacey to show 

cause why his § 2255 motion should not be dismissed without prejudice as 

premature. (Doc. 70). Lacey’s appellate counsel provided this Court notice of 

Lacey’s motion to the Eleventh Circuit Court of Appeals to voluntarily dismiss his 

appeal (Doc. 74), and the Court deferred ruling on Lacey’s § 2255 motion pending 

the Eleventh Circuit’s disposition of the appeal (see Doc. 75). On October 7, 2013, 

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the Eleventh Circuit granted Lacey’s motion and dismissed his appeal with 

prejudice. (Doc. 76). The Court set a briefing schedule on Lacey’s § 2255 motion the 

following day. (Doc. 77).

II. Applicable Law

A. General Standards Under § 2255

Title 28 U.S.C. § 2255 “permits a federal prisoner to bring a collateral 

challenge by moving the sentencing court to vacate, set aside, or correct the 

sentence.” Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 

2014). Section 2255 provides:

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 ... If the court finds that the judgment was 

rendered without jurisdiction, or that the sentence imposed was not 

authorized by law or otherwise open to collateral attack, or that there 

has been such a denial or infringement of the constitutional rights of 

the prisoner as to render the judgment vulnerable to collateral attack, 

the court shall vacate and set the judgment aside and shall discharge 

the prisoner or resentence him or grant a new trial or correct the 

sentence as may appear appropriate.

28 U.S.C. § 2255(a)-(b).

“Once the defendant's chance to appeal has been waived or exhausted,” a 

court is “entitled to presume he stands fairly and finally convicted, especially when, 

as here, he already has had a fair opportunity to present his federal claims to a 

federal forum.” United States v. Frady, 456 U.S. 152, 164 (1982). “[A] collateral 

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challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.” 

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing 

Frady, 456 U.S. at 165 (collecting cases)). “Because collateral review is not a 

substitute for a direct appeal, the general rules have developed that: (1) a defendant 

must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 

2255 is reserved for transgressions of constitutional rights and for that narrow 

compass of other injury that could not have been raised in direct appeal and would, 

if condoned, result in a complete miscarriage of justice. Accordingly, a nonconstitutional error that may justify reversal on direct appeal does not generally 

support a collateral attack on a final judgment unless the error (1) could not have 

been raised on direct appeal and (2) would, if condoned, result in a complete 

miscarriage of justice.” Id. at 1232-33 (internal citations, quotations, and footnote 

omitted).

Under the procedural default rule, a defendant generally must advance 

an available challenge to a criminal conviction or sentence on direct 

appeal or else the defendant is barred from presenting that claim in a § 

2255 proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th 

Cir. 2001); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 

1998); Mills[ v. United States], 36 F.3d [1052,] 1055[ (11th Cir. 1994)]; 

Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). This 

rule generally applies to all claims, including constitutional claims. See 

Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 2300, 129 L. Ed. 2d 

277 (1994) (“Where the petitioner—whether a state or federal 

prisoner—failed properly to raise his claim on direct review, the writ is 

available only if the petitioner establishes cause for the waiver and 

shows actual prejudice resulting from the alleged violation.” (internal 

quotation marks, punctuation, and citations omitted)); see also 

Wainwright v. Sykes, 433 U.S. 72, 84, 97 S. Ct. 2497, 2505, 53 L. Ed. 2d 

594 (1977) (applying cause and prejudice standard to constitutional 

claims).

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A defendant can avoid a procedural bar only by establishing one of the 

two exceptions to the procedural default rule. Under the first 

exception, a defendant must show cause for not raising the claim of 

error on direct appeal and actual prejudice from the alleged error. 

Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 

L. Ed. 2d 828 (1998); Mills, 36 F.3d at 1055; Cross v. United States, 893 

F.2d 1287, 1289 (11th Cir. 1990); Greene, 880 F.2d at 1305; Martorana 

v. United States, 873 F.2d 283, 284 (11th Cir. 1989); Parks v. United 

States, 832 F.2d 1244, 1246 (11th Cir. 1987). Under the second 

exception, a court may allow a defendant to proceed with a § 2255 

motion despite his failure to show cause for procedural default if “ ‘a 

constitutional violation has probably resulted in the conviction of one 

who is actually innocent.’ ” Mills, 36 F.3d at 1055 (quoting Murray v. 

Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 

(1986)); see also Bousley, 523 U.S. at 622, 118 S. Ct. at 1611; Jones, 153 

F.3d at 1307.

Id. at 1234-35 (footnote omitted).

Once a petitioner files a § 2255 motion, “[u]nless the motion and the 

files and records of the case conclusively show that the prisoner is 

entitled to no relief, the court shall ... grant a prompt hearing thereon, 

determine the issues and make findings of fact and conclusions of law 

with respect thereto.” [28 U.S.C.] § 2255(b). A petitioner is entitled to 

an evidentiary hearing if he “alleges facts that, if true, would entitle 

him to relief.” Aron[ v. United States], 291 F.3d [708,] 715[ (11th Cir. 

2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 

1989)). “[A] petitioner need only allege—not prove—reasonably specific, 

non-conclusory facts that, if true, would entitle him to relief.” Id. at 

715 n.6. However, a district court need not hold a hearing if the 

allegations are “patently frivolous,” “based upon unsupported 

generalizations,” or “affirmatively contradicted by the record.” Holmes,

876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 519, 520–

21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 

(11th Cir. 2004) (“Because the ... affidavits submitted by Lynn amount 

to nothing more than mere conclusory allegations, the district court 

was not required to hold an evidentiary hearing on the issues and 

correctly denied Lynn's § 2255 motion.”).

Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). A court must “liberally 

construe pro se filings, including pro se applications for relief pursuant to § 2255.” 

Id. at 1215.

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B. Effect of Guilty Plea

“It is well settled that a voluntary and intelligent plea of guilty 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 (1984), disapproved of on other 

grounds by Puckett v. United States, 556 U.S. 129 (2009). “ ‘A guilty plea, since it 

admits all the elements of a formal criminal charge, waives all non-jurisdictional 

defects in the proceedings against a defendant.’ ” United States v. Brown, 752 F.3d 

1344, 1347 (11th Cir. 2014) (quoting United States v. Fairchild, 803 F.2d 1121, 1124 

(11th Cir. 1986)). See also, e.g., United States v. Patti, 337 F.3d 1317, 1320 (11th 

Cir. 2003) (“Generally, a voluntary, unconditional guilty plea waives all nonjurisdictional defects in the proceedings.”); Stano v. Dugger, 921 F.2d 1125, 1150 

(11th Cir. 1991) (en banc) (“The Supreme Court has given finality to guilty pleas by 

precluding claims of constitutional deprivations occurring prior to entry of the 

plea.”). Thus, “only an attack on the voluntary and knowing nature of the plea can 

be sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (per 

curiam). Moreover, “even the voluntariness and intelligence of a guilty plea can be 

attacked on collateral review only if first challenged on direct review.” Bousley v. 

United States, 523 U.S. 614, 621 (1998). Accord United States v. Pearl, 288 F. App'x 

651, 655 (11th Cir. 2008) (per curiam) (unpublished).

C. Ineffective Assistance of Counsel

The Sixth Amendment gives criminal defendants the right to effective 

assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 

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668, 684–86 (1984). “To establish an ineffective assistance of counsel claim, a 

defendant must show that (1) ‘counsel's representation fell below an objective 

standard of reasonableness’ and (2) that such failure prejudiced him in that ‘there is 

a reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different.’ ” United States v. Pease, 240 F.3d 938, 

941 (11th Cir. 2001) (per curiam) (quoting Strickland, 466 U.S. at 687-88, 694). “

‘Conclusory allegations of ineffective assistance are insufficient.’ ” Wilson v. United 

States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam) (quoting United States v. 

Lawson, 947 F.2d 849, 853 (7th Cir. 1991)). “Because both parts of the test must be 

satisfied in order to show a violation of the Sixth Amendment, the court need not 

address the performance prong if the defendant cannot meet the prejudice prong, or 

vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation 

omitted). See also Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (“A 

habeas petitioner claiming ineffective assistance of counsel must carry his burden 

on both Strickland prongs, and a court need not address both prongs if the 

defendant has made an insufficient showing on one.”). 

In evaluating the first, or “performance,” prong of Strickland,

“[j]udicial scrutiny of counsel's performance must be highly 

deferential.” [Strickland, 466 U.S.] at 689, 104 S. Ct. at 2065. Because 

retrospective evaluation of a lawyer's performance can be difficult, “a 

court must indulge a strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance; that is, 

the defendant must overcome the presumption that ... the challenged 

action might be considered sound trial strategy.” Id. (internal 

quotations omitted). A petitioner must identify specific acts or 

omissions that were not the result of reasonable professional 

judgment, and a court should deem these acts or omissions deficient 

only if they “were outside the wide range of professionally competent 

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assistance.” Id. at 690, 104 S. Ct. at 2066. Simply put, the deference 

afforded an attorney's decision is great and the bar for proving a Sixth 

Amendment violation is high. In light of the “strong presumption in 

favor of competence,” we have held that in order to prove deficient 

performance, “a petitioner must establish that no competent counsel 

would have taken the action that his counsel did take.” Chandler v. 

United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).

Under the second, or “prejudice,” prong of Strickland, a petitioner must 

“affirmatively prove prejudice” by showing that counsel's errors 

“actually had an adverse effect on the defense.” 466 U.S. at 693, 104 S. 

Ct. at 2067. This requires a showing of more than “some conceivable 

effect on the outcome of the proceeding.” Id. Instead, the petitioner 

“must show that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 

2068. Although this standard is difficult to meet, it is significant that a 

petitioner must show only a reasonable probability that the outcome 

would have been different; he “need not show that counsel's deficient 

conduct more likely than not altered the outcome in the case.” Id. at 

693, 104 S. Ct. at 2068. When evaluating this probability, “a court 

hearing an ineffectiveness claim must consider the totality of the 

evidence before the judge or jury.” Id. at 695, 104 S. Ct. at 2069.

Brownlee v. Haley, 306 F.3d 1043, 1059-60 (11th Cir. 2002).

“In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the 

Supreme Court held that ‘the two part Strickland v. Washington test applies to 

challenges to guilty pleas based on ineffective assistance of counsel,’ and that ‘to 

satisfy the “prejudice” requirement, the defendant must show that there is a 

reasonable probability that, but for counsel's errors, he would not have pleaded 

guilty and would have insisted on going to trial.’ ” Pease, 240 F.3d at 941 (quoting 

Hill v. Lockhart, 474 U.S. at 58-59, 106 S. Ct. at 370-71). Accord, e.g., Gordon v. 

United States, 518 F.3d 1291, 1297 (11th Cir. 2008). 

In many guilty plea cases, the “prejudice” inquiry will closely resemble 

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the inquiry engaged in by courts reviewing ineffective-assistance 

challenges to convictions obtained through a trial. For example, where 

the alleged error of counsel is a failure to investigate or discover 

potentially exculpatory evidence, the determination whether the error 

“prejudiced” the defendant by causing him to plead guilty rather than 

go to trial will depend on the likelihood that discovery of the evidence 

would have led counsel to change his recommendation as to the plea. 

This assessment, in turn, will depend in large part on a prediction 

whether the evidence likely would have changed the outcome of a trial. 

Similarly, where the alleged error of counsel is a failure to advise the 

defendant of a potential affirmative defense to the crime charged, the 

resolution of the “prejudice” inquiry will depend largely on whether the 

affirmative defense likely would have succeeded at trial. See, e.g., 

Evans v. Meyer, 742 F.2d 371, 375 (CA7 1984) (“It is inconceivable to 

us ... that [the defendant] would have gone to trial on a defense of 

intoxication, or that if he had done so he either would have been 

acquitted or, if convicted, would nevertheless have been given a shorter 

sentence than he actually received”). As we explained in Strickland v. 

Washington, these predictions of the outcome at a possible trial, where 

necessary, should be made objectively, without regard for the 

“idiosyncrasies of the particular decisionmaker.” Id., 466 U.S., at 695, 

104 S. Ct., at 2068.

Hill v. Lockhart, 474 U.S. at 59-60 (internal citation omitted).

The Supreme Court has recognized that the decision to plead guilty 

may occur without all of the state's evidence and necessarily takes 

place without knowledge of all facts revealed by witnesses at trial. 

McMann[ v. Richardson], 397 U.S. [759,] 769–70, 90 S. Ct. [1441,]

1448[ (1970)]. “[C]ounsel owes a lesser duty to a client who pleads 

guilty than to one who decides to go to trial, and in the former case 

counsel need only provide his client with an understanding of the law 

in relation to the facts, so that the accused may make an informed and 

conscious choice between accepting the prosecution's offer and going to 

trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) 

(per curiam); Downs–Morgan v. United States, 765 F.2d 1534, 1539 

(11th Cir. 1985). An attorney's responsibility is to investigate and to 

evaluate his client's options in the course of the subject legal 

proceedings and then to advise the client as to the merits of each. 

Tafero[ v. Wainwright], 796 F.2d [1314,] 1320[ (11th Cir. 1986) (per 

curiam)]; Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.

1986), cert. denied, 481 U.S. 1042, 107 S. Ct. 1986, 95 L. Ed. 2d 825 

(1987).

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Stano, 921 F.2d at 1151. See also Brown v. Fla. Atty. Gen., 230 F. App'x 896, 899 

(11th Cir. 2007) (per curiam) (unpublished) (“To impart such an understanding to 

the accused, counsel must, after making an independent examination of the facts, 

circumstances, pleadings and laws involved, offer his informed opinion as to the 

best course to be followed in protecting the interests of his client.” “The rule that a 

plea must be intelligently made to be valid does not require that a plea be 

vulnerable to attack if the defendant did not correctly assess every relevant factor 

entering into his decision.” (quoting Wofford, 748 F.2d at 1508-009 (citations 

omitted)).

“[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal 

does not bar the claim from being brought in a later, appropriate proceeding under § 

2255.” Massaro v. United States, 538 U.S. 500, 509 (2003). Indeed, “in most cases a 

motion brought under § 2255 is preferable to direct appeal for deciding claims of 

ineffective assistance.” Id. at 504. See also United States v. Curbelo, 726 F.3d 1260, 

1267 (11th Cir. 2013) (“An ineffective assistance claim should usually be raised in a 

motion under 28 U.S.C. § 2255.” (citing United States v. Patterson, 595 F.3d 1324, 

1328 (11th Cir. 2010))), cert. denied, 134 S. Ct. 962 (2014).

III. Analysis

A. Plea Advice

Lacey claims that, contrary to what was asserted in the Plea Agreement, 

Williams did not discuss with Lacey possible defenses, did not review the plea 

agreement or factual resume, and did not meaningfully participate in Lacey’s preCase 1:12-cr-00046-KD-N Document 88 Filed 02/11/15 Page 12 of 61
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plea proceedings. (Doc. 82 at 11). However, each of these claims is directly 

contradicted by Lacey’s sworn testimony at his guilty plea hearing. (See Doc. 57

[Guilty Plea Hearing Trans.]).5 In the Eleventh Circuit, there is “a ‘strong 

presumption’ that statements made by the defendant during his plea colloquy are 

true.” United States v. Cardenas, 230 F. App’x 933, 935 (11th Cir. 2007) (citing 

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994)). “[T]herefore, ‘when a 

defendant makes statements under oath at a plea colloquy, he bears a heavy burden 

to show his statements were false.’ ” Id. (quoting United States v. Rogers, 848 F.2d 

166, 168 (11th Cir. 1988)). Lacey has made no attempt to explain how or why his 

guilty plea testimony should now be deemed false. Thus, because the record 

affirmatively contradicts these claims, the undersigned RECOMMENDS that they 

be DENIED.

 5

Q [the Court]: Have you had any problem communicating with your attorney?

A [Lacey]: No, ma'am.

Q: Are you fully satisfied with his advice and representation?

A: Yes, ma’am.

Q: He explained the charge to you?

A: Yes, ma’am.

...

Q: Now, you are pleading pursuant to a plea agreement. Did you read that 

plea agreement and discuss it with your attorney before you signed it?

A: Yes, ma’am.

(Doc. 57 at 2-3).

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Lacey also claims that his attorney misrepresented his guideline range and 

“specified that the government would not use any relevant conduct if he pled 

guilty.” (Doc. 82 at 14). “A guilty plea is open to attack on the ground that counsel 

did not provide the defendant with reasonably competent advice.” Stano, 921 F.2d 

at 1149 (quotation marks omitted). However, any error on the part of counsel in 

advising him as to the possible guideline sentencing range did not prejudice Lacey.

During Lacey’s guilty plea colloquy, the Court expressly advised him that he 

potentially faced a statutory maximum of 20 years in prison. The Court also 

advised him that the sentencing guidelines are only advisory and the Court was not 

required to follow them. Lacey indicated that he understood both of these points. 

(See Doc. 57 at 4-5). See United States v. Bui, 769 F.3d 831, 835 (3d Cir. 2014) (“ 

‘[A]n erroneous sentencing prediction by counsel is not ineffective assistance of 

counsel where ... an adequate plea hearing was conducted.’ ” (quoting United States 

v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007)) (alteration added)); United States v. 

Tuyen Quang Pham, 587 F. App'x 6, 11 (3d Cir. 2014) (unpublished) (“ ‘[W]e have 

long held that an erroneous sentencing prediction by counsel is not ineffective 

assistance of counsel where, as here, an adequate plea hearing was conducted.’ 

United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). The written plea 

agreement stated that Pham faced a mandatory minimum penalty of ten years' 

imprisonment and a maximum penalty of life imprisonment for each count to which 

he pled guilty and that no one had made any promises to him to get him to enter a 

guilty plea. Moreover, the District Court conducted an extensive and thorough plea 

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colloquy reiterating Pham's sentencing exposure and ensuring that Pham was not 

pleading guilty because anyone had made any promises outside the agreement. The 

District Court also explained that it could disregard recommendations by counsel at 

sentencing, but Pham would still be bound by his guilty plea. Pham told the District

Court that he understood all this information. Accordingly, any misperceptions 

Pham had about his sentence when he decided to plead guilty should have been 

eliminated by the written plea agreement and the plea colloquy. Thus, the District 

Court properly denied Pham's claim because he failed to show that, but for his 

counsel's erroneous prediction about the safety valve provision, he would have pled 

not guilty and proceeded to trial.”); United States v. Kayode, -- F.3d --, No. 12-

20513, 2014 WL 7334912, at *7 (5th Cir. Dec. 23, 2014) (“[W]hile judicial 

admonishments are not a substitute for effective assistance of counsel, they are 

relevant under the second Strickland prong in determining whether a defendant 

was prejudiced by counsel's error.”); United States v. Gutierrez, -- F. Supp. 3d --,No. 

CRIM. 06-40043-FDS, 2014 WL 5151112, at *3 (D. Mass. Oct. 8, 2014) (“[E]ven 

assuming that at some point counsel had erroneously advised petitioner that he 

faced a maximum sentence of 151 months, by the time he pleaded guilty, he 

acknowledged that he was aware of the maximum sentence, the applicable 

sentencing range, and the Court's capacity to depart from the guidelines and impose 

a variant sentence. He expressed no surprise and raised no questions during the 

colloquy. And he made no effort to withdraw his plea before sentencing, after 

counsel allegedly advised him that the Court could sentence him to 210 months. 

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16

That is not sufficient, under the circumstances, to demonstrate deficient 

performance or resulting prejudice.”).

Because Lacey has failed to show that he was prejudiced by counsel’s alleged 

error in advising him as to the possible guideline sentencing range, the undersigned 

RECOMMENDS that this claim of ineffective assistance be DENIED.

B. Failure to File Motion to Suppress

Lacey’s § 2255 motion also claims that attorney Williams rendered 

unconstitutionally ineffective assistance of counsel by failing to move to suppress 

evidence allegedly seized in violation of the Fourth Amendment during a 

warrantless search of both his person and his vehicle following a traffic stop. Lacey 

claims that this was a result of Williams’s failure to share and discuss evidence 

with Lacey. Lacey claims that such a motion would have been successful and he 

would therefore not have pled guilty and would have insisted on going to trial.

In the Factual Resume that accompanied Lacey’s plea agreement, Lacey 

admitted, inter alia, to the following:

On August 30, 2011, Lacey was arrested by the Mobile Police 

Department for possession of forged instruments and trafficking in 

stolen identities. Among the items found in his possession at that 

time, were claim forms and other documents relating to GCCF claims 

that were not in Lacey’s name. This prompted further investigation 

into Lacey’s claim.

...

On August 30, 2011, agents interviewed Lacey about various GCCF 

claims at the Mobile Police Department in front of Officer Kevin 

Naman. After being read and waiving his Miranda rights via SSF 

1737B, Lacey gave a statement indicating that he is aware of 

individuals who are filing false claims with the GCCF. He also 

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indicated that of the people listed on the sheet of identifications found 

in his possession at the time of his arrest were people that he assisted 

in doing taxes and GCCF claims. He further stated that his claim 

#3100787, was mostly accurate, but that he did make up the payments 

to his employees, because he always paid them "under the table" and 

did not have records of those expenditures. Lacey also admitted that he 

used his claim money to purchase a vehicle from Andrews Imports.

A check of the list of identifications found in Lacey's possession at the 

time of his arrest indicated that nearly every individual has filed a 

claim with the GCCF. Audio records obtained also indicate that Adrian 

Lacey was the one calling to check the status on the various claims. A 

review of the forms submitted by Lacey to support his claim to the 

GCCF showed that numerous of the forms were false. The 2009 IRS 

1040 form submitted by Lacey indicates that it was prepared by 

Clarkson CPR and Accounting of 3619 Hillcrest Rd. Mobile, AL, 36695. 

A check with the Secretary of State's website indicates that no such 

business exists. The address listed for the business does not exist and 

the phone number provided rings to Providence Hospital. The 1040 

for also [sic] purported to be prepared on October 7, 2010, which is two 

days after the claim was filed with the GCCF.

(Doc. 17 at 2-4).

Lacey has attached as an exhibit to his § 2255 motion an “Investigative 

Narrative” prepared by a “Corporal Thomas Whittington” of the “Mobile Police 

Financial Crimes Detail” on August 31, 2011, that provides a statement of the 

events leading to Lacey’s August 30, 2011 arrest. (Doc. 69 at 10-11). Lacey claims 

that the Investigative Narrative was included in the discovery materials provided to 

him by Darley following his sentencing. (See Doc. 71 at 2). Corporal Whittington’s 

Investigative Narrative states, in part, as follows:

On August 30, 2011 at 1530 hours, I was contacted by Officer K. 

Naman...He had a driver, black male, Adrian Lemoyne 

Lacey...detained for investigative purposes reference finding a fake 

Alabama ID on the subject’s person during a traffic stop at St. Charles 

Ave. at St. Stephens Rd. in front of 359 St. Charles Ave. The driver 

was stopped for No seatbelt at the location. Upon approach the driver 

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produced a Florida driver’s license. The driver was found to have a 

suspended Alabama license. Upon removing the subject, the driver 

was terry patted for officer safety. Officer Naman felt what appeared 

to be a plastic ID or card in the driver’s right pocket. The driver then 

told him it was another person’s ID and the driver took the ID out of 

his own pocket. The ID was for a white male, [redacted] Johnson 

[redacted] with a DL number of [redacted]. There was also a social 

security card with the ID that had the number [redacted]. Officer 

Naman immediately could tell the ID and social security card were 

fake. The driver then produced a document that read Indemnity Bond 

with check Payee as Roderick Johnson. The document was for the 

purpose of reporting a lost/stolen BP Oil Spill check. Officer Naman 

detained Adrian Lacey in the rear of his Police vehicle and then called 

me. Officer Naman then ran the ID and social security number. The 

ID number came back to white female, Mary Ann Matson of Madison, 

Alabama. The social security number came back to a heavy set black 

male Roderick C. Johnson of Mobile, Alabama. Officer Naman issued 

two citations to the subject for Seatbelt Violation and Suspended 

Driver’s License.

(Doc. 69 at 10).

Per the Investigative Narrative, Lacey’s vehicle was subsequently 

“inventoried for impound and towing,” with a search turning up a manila file folder 

containing several documents, the first being a “two page list fifty-two [sic] names, 

date of birth’s [sic] and social security numbers[,] and the rest being “tax forms for 

some of the listed subjects and BP check confirmation forms.” (Id.). Lacey was then 

arrested “for Possession of a Forged Instrument 2nd Degree reference the fake 

Alabama license and BP document” and was transported to Corporal Whittington’s 

office. (Id. at 10-11). After receiving warnings in accordance with Miranda v. 

Arizona, 384 U.S. 436 (1966), and signing a “rights waiver form,” Lacey purportedly

said that the list of fifty-two names partially came from the client list 

of his Mother, who owns Lacey Tax Service in Prichard, Alabama. He 

advised that a few of the names were of legitimate clients that he has 

done tax work for. The other names are for BP claims which he has 

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made and profited from. He advised some of the listed person’s [sic] 

had no knowledge of his actions. Adrian Lacey also advised that he 

paid over $50,000.00 in cash for the Mercedes and that the money 

came from BP checks. Adrian Lacey was further charged at this time 

with Trafficking in Stolen Identities.

(Doc. 69 at 11). Corporal Whittington then “contacted Special Agent Joseph Lea of 

the United States Secret Service[,]” who further interviewed Lacey. (Id.).

Per the Factual Resume that accompanied Lacey’s guilty plea, “among the 

items found in [Lacey’s] possession” on August 30, 2011, “were claim forms and 

other documents relating to GCCF claims that were not in Lacey’s name.” (Doc. 17 

at 2). These documents “prompted further investigation into Lacey’s claim.” (Id.). 

“A check of the list of identifications found in Lacey’s possession at the time of his 

arrest indicated that nearly every individual has filed a claim with the GCCF.” (Id.

at 4).

Lacey now claims that Corporal Whittington’s Investigative Narrative 

contains several false representations:

• Rather than being “immediately” able to tell the ID and social security card 

Lacey produced from his pocket were fake, it took the officers “nearly forty 

five minutes to an hour after removing the ID from [Lacey]’s pocket and 

person to determine it was fake[,]” during which time Lacey was asked to 

“have a seat in the back of his car, free of handcuffs, while they searched 

[Lacey]’s car without consent or ever reading [Lacey] his Miranda Rights.” 

(Doc. 69 at 3, 5. See also id. at 5 (“The narrator account of the officer 

immediately noticing the ID was fake is false.”)). 

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• The Investigative Narrative “says that [Lacey] not only removed the ID on 

his own free will but also took out a social security card along with it.” (Id. at 

3). Without expressly denying the Narrative as to this point, Lacey states he 

“would like a suppression hearing so the court can review the tape and 

determine whether the officer removed the ID or [Lacey] removed it due to 

coercion and duress.” (Doc. 69 at 4. See also id. at 5 (“[T]he narrator wants 

this court to believe that after the terry pat petitioner just plain out 

volunteered that he was in possession of someone’s ID and Social Security 

Card and pulled it out on his own free will, absent coercion or involuntary 

questioning, which then turned to a criminal investigation basically on the 

heels of petitioner’s own free will. This evidence is subject to a suppression 

hearing.”); Doc. 71 at 5 (claiming August 30, 2011 traffic stop “lacked 

probable cause for police to reach into petitioner’s pocket and remove a ID 

[sic] card after police already had petitioner’s Florida license in their 

possession before they asked him to exit his car”)). 

• The Investigative Narrative’s statement that Lacey “produced a document 

that read Indemnity Bond...is also false[,]” and “[t]he footage will show this 

never happened.” (Doc. 69 at 6).

Lacey alleges that Williams “never attended a court proceeding or interview 

with petitioner[,]...sent another attorney...whom [sic] did not have license to 

practice federal law in Alabama[, and] failed to provide [Lacey] with a motion of 

discovery therefore depriving [Lacey] of an opportunity of suppressing evidence 

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obtained from an illegal Terry Pat search as well as the arresting officers statement 

and report.” (Doc. 69 at 1). Williams purportedly was “deficient for not advising 

[Lacey] about the legal ramifications inserted in the fourth amendment rights of 

being free of illegal search and seizure” and, “[a]bsent of a weapons search or 

patdown, [Williams] never told [Lacey] that police were not allowed to reach into 

your pockets or make you empty your pockets.” (Id. at 2). Lacey claims that, if not 

for Williams’s errors, Lacey “would have suppressed the evidence obtained from 

illegal Terry Pat search of his person and vehicle used to build a federal prosecution 

and conviction against him.” (Id.). Williams purportedly “misled [Lacey] by telling 

him they could search car due to a driver having a suspended license.” (Id.).

Lacey claims that all evidence seized from his person and car on August 30, 

2011, is due to be suppressed as having been seized in violation of the Fourth 

Amendment. He claims that he did not raise these concerns to Williams earlier 

because he “was only shown the first three pages of his discovery” and was not 

shown the Investigative Narrative, thus denying him “a chance to challenge the 

police story and denied a chance to argue.” (Doc. 71 at 2). Williams “instead 

persuaded [Lacey] that the case was pretty much won by the prosecution due to the 

evidence found in his car and the incriminating interrogation...at the county jail on 

September 14, 2011.” (Id.).

Lacey claims Williams “failed to file motion to suppress and was ineffective in 

depriving [him] with at least the opportunity or right to file one.” (Doc. 69 at 7). 

However, Lacey cannot obtain relief under § 2255 by simply claiming that counsel’s 

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failure to file a motion denied him “the opportunity or right” to argue suppression, 

as “the failure to file a suppression motion does not constitute per se ineffective 

assistance of counsel...” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). See 

also Curbelo, 726 F.3d at 1267 (“[C]ounsel is not ineffective for failing to file a 

meritless suppression motion.” (citing Jefferson v. Fountain, 382 F.3d 1286, 1297 

(11th Cir. 2004))). “A failure to file a motion to suppress that is based on a lack of 

knowledge of the state of the evidence due to counsel's misunderstanding or 

ignorance of the law or failure to conduct adequate investigations can satisfy 

Strickland's deficiency prong.” Green v. Nelson, 595 F.3d 1245, 1249 (11th Cir. 

2010) (citing Kimmelman, 477 U.S. at 383-87). “To obtain relief where an 

ineffective assistance claim is based on trial counsel's failure to file a timely motion 

to suppress, a petitioner must prove (1) that counsel's representation fell below an 

objective standard of reasonableness, (2) that the Fourth Amendment claim is 

meritorious, and (3) that there is a reasonable probability that the verdict would 

have been different absent the excludable evidence.” Zakrzewski v. McDonough, 

455 F.3d 1254, 1260 (11th Cir. 2006) (per curiam) (citing Kimmelman, 477 U.S. at 

375). See also Green, 595 F.3d at 1251-52 (“To establish prejudice in the context of 

ineffective assistance of counsel for failure to raise a Fourth Amendment claim, a 

defendant must show that (1) the underlying Fourth Amendment issue has merit 

and (2) there is a ‘reasonable probability that the verdict would have been different 

absent the excludable evidence....’ ” (quoting Kimmelman, 477 at 375)).

The reasonableness of counsel's performance is to be evaluated from 

counsel's perspective at the time of the alleged error and in light of all 

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the circumstances. In making the competency determination, the court 

should keep in mind that counsel's function, as elaborated in 

prevailing professional norms, is to make the adversarial testing 

process work in the particular case. Because that testing process 

generally will not function properly unless defense counsel has done 

some investigation into the prosecution's case and into various defense 

strategies,...counsel has a duty to make reasonable investigations or to 

make a reasonable decision that makes particular investigations 

unnecessary. But...a particular decision not to investigate must be 

directly assessed for reasonableness in all the circumstances, applying 

a heavy measure of deference to counsel's judgments.

Kimmelman, 477 U.S. at 384 (citing Stickland, 466 U.S. at 689-91) (internal 

citations and quotations omitted).

First, the undersigned agrees with the Government that Lacey, while 

providing a plethora of legal authority setting forth general Fourth Amendment 

considerations, “provides little to no factual support for his argument that the 

evidence was obtained illegally.” (Doc. 80 at 12). In bringing this claim, Lacey 

bears the initial burden of alleging reasonably specific, non-conclusory facts that, if 

true, would entitle him to relief. Winthrop-Redin, 767 F.3d at 1216. However, 

Lacey’s sparse factual allegations largely consist of him haphazardly pointing out 

various portions of Corporal Whittington’s Investigative Narrative and simply

claiming “that’s not what happened,” without putting forth a specific and consistent 

narrative to counter Corporal Whittington’s. For instance, at times Lacey appears 

to claim that Officer Naman removed the ID and social security card from Lacey’s 

pocket during the August 30, 2011 traffic stop, while at other times Lacey suggests 

he might have removed them himself due to “coercion and duress.” Even construed 

liberally, Lacey’s allegations as to this claim fall short of the level of specificity 

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required to show entitlement to an evidentiary hearing, much less any relief, on the 

issue.

Moreover, Lacey’s own allegations indicate that Williams’s failure to file a 

motion to suppress was not “based on a lack of knowledge of the state of the 

evidence due to counsel's misunderstanding or ignorance of the law or failure to 

conduct adequate investigations...” Green, 595 F.3d at 1249. Rather, Lacey admits 

that Williams “persuaded [him] that the case was pretty much won by the 

prosecution due to the evidence found in his car and the incriminating interrogation 

Jeff Dean [sic] allowed [Lacey] to participate in at the county jail on September 14, 

2011.” (Doc. 71 at 2). As the Government correctly points out (see Doc. 80 at 13), 

Lacey has not challenged the veracity of the facts regarding his September 14, 2011 

interview with law enforcement officials, conducted after a separate arrest on 

September 9, 2011, for possession of narcotics. (See Doc. 17 at 2). The Factual 

Resume accompanying Lacey’s Plea Agreement sets forth the following facts 

regarding the interview:

On September 13, 2011, Lacey contacted USSS Special Agent Joe Lea 

from the Mobile Metro Jail. He asked SA Lea to come speak with him 

about the cases against him. Knowing of a previous court hearing, SA 

Lea inquired if he currently had an attorney. Lacey stated that Jeff 

Dean was his attorney and that he wanted to speak to me outside his 

presence. Agents informed him that they must contact Mr. Dean prior 

to any contact. That same day at 3:18pm, agents contacted Jeff Dean 

via speaker phone with Cpl. Thomas Wiftington [sic] present about 

meeting with his client. He stated that agents could meet with Lacey 

outside of his presence at any time.

On September 14, 2011, Cpl. Thomas Wittington and agents met with 

Lacey at the Mobile Metro Jail. After being read and waiving his 

Miranda Rights via SSF 1737B, agents interviewed Lacey about my 

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latest findings. He admitted at that time that he has created false 

documents for others in an attempt aid them in getting money from 

the GCCF. He also admitted that he submitted a false IRS 1040 form 

to the GCCF in support of his claim. He also admitted that his would 

be for a seafood company that went out of business prior to the oil spill. 

Lacey advised that he was in prison at the time of the oil spill claim 

and could not operate the business. Agents questioned Lacey about 

the numerous tax return payments that appear in his bank accounts. 

He stated that he has filed tax returns for several hundred individuals 

and to ensure payment, the returns would be deposited into his 

account and he would pay the client, less his payment, from his own 

account. Lacey volunteered the information about the $112,000 that 

agents had previously observed. He stated that he did not know why 

the deposit had been made into his account, though it appeared to be a 

tax return, he knew it was not supposed to be there and some error 

must have been made. He admitted that he took the money out 

immediately and spent it, knowing that it was not rightfully his. Lacey 

also stated that the money that was in his possession at the time of his 

arrest on September 9, 2010 was directly from the sale of his vehicle 

that he purchased with the Fraudulent BP money.

(Id. at 4-5). Rather than challenge the veracity of these facts, Lacey simply asserts 

that this confession would also have been suppressed as “fruit of the poisonous 

tree.”

The Eleventh Circuit has explained:

Evidence, including verbal statements, obtained as a result of an 

unlawful search are subject to exclusion. See Wong Sun v. United 

States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441 (1963). 

Although its purpose is to prevent lawless conduct by law enforcement 

officials, the exclusionary rule is not to be “interpreted to proscribe the 

use of illegally seized evidence in all proceedings or against all 

persons.” Brown v. Illinois, 422 U.S. 590, 600, 95 S. Ct. 2254, 2260, 45 

L. Ed. 2d 416 (1975) (quotation marks and citation omitted). An 

inquiry as to the applicability of the exclusionary rule must address 

whether the evidence or “fruit of the poisonous tree” was obtained by 

the “exploitation of that illegality or instead by means sufficiently 

distinguishable [from the illegal action] as to be purged of the primary 

taint.” Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417 (internal quotations 

and citation omitted)...

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...

The question of whether a defendant's statement, given after an illegal 

arrest and Miranda warnings, “is the product of a free will ... must be 

answered on the facts of each case. No single fact is dispositive.” 

Brown, 422 U.S. at 603, 95 S. Ct. at 2261. The relevant factors in 

making the threshold determination of voluntariness include the 

Miranda warnings, “[t]he temporal proximity of the arrest and the 

confession, the presence of intervening circumstances, and, 

particularly, the purpose and flagrancy of the official misconduct.” Id.

at 603–04, 95 S. Ct. at 2261–62 (internal citation and footnote 

omitted). The prosecution bears the burden of showing admissibility. 

Id. at 604, 95 S. Ct. at 2262.

Parker v. Allen, 565 F.3d 1258, 1290-92 (11th Cir. 2009).

The Eleventh Circuit has found a defendant’s confession to be sufficiently 

attenuated from an illegal arrest where the confession “began approximately fortyfive minutes after his arrest, away from the scene of the arrest, made after twice 

being advised of his Miranda rights...” United States v. Edmondson, 791 F.2d 1512, 

1515-16 (11th Cir. 1986) (citing Brown, 422 U.S. at 603–04 (Miranda warnings, 

though not determinative alone and per se, are an important factor in determining 

whether a confession is obtained by exploitation of an illegal arrest)).

The Eleventh Circuit has also rejected a defendant’s “fruit of the poisonous 

tree” argument where the statements the defendant sought to be suppressed “were 

not made until the day after the arrest[,]” his “arrest on June 18 and his 

questioning on June 19 were conducted by different individuals[, the] questioning 

pertained to a specific and circumscribed issue ([the defendant]'s immigration 

status) completely distinct from the subject of his arrest (suspected drug activity)[,]” 

and “[n]othing in the record suggest[ed] that the stop of [the defendant]'s vehicle 

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and then his arrest, were motivated by an ulterior purpose” or “indicate[d] any 

flagrant behavior by...anyone...involved in [the defendant]'s arrest and 

interrogation.” United States v. Lopez-Garcia, 565 F.3d 1306, 1315-16 (11th Cir. 

2009).

Even more significant than the one-day lapse of time in Lopez-Garcia and the 

forty-five minute lapse in Edmondson, Lacey’s September 14, 2011 confession 

occurred fifteen days following the purportedly illegal August 30, 2011 search and 

seizure, with an intervening arrest on unrelated drug charges occurring in between. 

Like the defendant in Edmondson, Lacey was given Miranda warnings prior to 

being questioned on both dates. As in Lopez-Garcia, Lacey’s questioning on 

September 14, 2011, was conducted by different law enforcement officials (federal 

agents) than those who participated in the August 30, 2011 traffic stop and vehicle 

search (City of Mobile police officers). Moreover, it was Lacey who initiated contact 

with federal agents to set up the September 14, 2011 interview, with Lacey 

expressly indicating that he wanted to speak with the agents outside the presence 

of counsel (though the agents still notified counsel at the time beforehand and 

obtained his consent to conduct the interview).

Given these circumstances, uncontroverted by Lacey, it was reasonable for 

Williams to conclude that, even if evidence from the August 30, 2011 traffic stop 

and arrest could have successfully been suppressed, Lacey’s admissions at his

September 14, 2011 interview would likely be deemed too attenuated to also be 

suppressed as “fruit of the poisonous tree.” That Williams ultimately considered 

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suppression of the September 14, 2011 interview to be untenable is supported by 

Lacey’s allegation that Williams “criticized a former counsel of [Lacey], Jeff Dean

[sic], for allowing agents to interview [him] at the jail without being present” (Doc. 

81 at 9) and said the interview “was much too incriminating to go to trial with” and 

“sunk the case.”6 (Doc. 82 at 5, 7). 

Whether Williams’s assessment would have ultimately proved to have been 

correct is irrelevant. As the Supreme Court has explained, “a counseled defendant 

may not make a collateral attack on a guilty plea on the allegation that he 

misjudged the admissibility of his confession. ‘Waiving trial entails the inherent 

risk that the good-faith evaluations of a reasonably competent attorney will turn 

out to be mistaken either as to the facts or as to what a court's judgment might be 

 6 Lacey asserts that “Counsel Jeff Dean [sic] was ineffective for allowing petitioner to 

talk to agents without a proffer” (Doc. 82 at 6) and that the interview is therefore due to be 

suppressed “based on Sixth Amendment violations.” (Doc. 81 at 5. See also Doc. 82 at 8 

(“...Petitioner’s Sixth Amendment rights were violated by Jeff Dean first and then by 

agents.”)). However, “[t]he Sixth Amendment right[ to counsel in all criminal prosecutions] 

is offense specific” and “cannot be invoked once for all future prosecutions, for it does not 

attach until a prosecution is commenced, that is, at or after the initiation of adversary 

judicial criminal proceedings—whether by way of formal charge, preliminary hearing, 

indictment, information, or arraignment.” Philmore v. McNeil, 575 F.3d 1251, 1257 (11th 

Cir. 2009) (per curiam) (quotations omitted). Here, at the time of Lacey’s interview, his 

federal criminal prosecution had not yet commenced, and Deen has never served as counsel 

for Lacey in this action. Accordingly, even assuming Deen performed deficiently in allowing 

the interview to occur, Lacey’s Sixth Amendment right to counsel in the criminal 

prosecution he now challenges had not attached at the time. See id. at 1258-59 (“Absent a 

Sixth Amendment right to counsel, there can be no violation of the Sixth Amendment right 

to the effective assistance of counsel.”). Cf. United States v. Burgest, 519 F.3d 1307, 1310-

11 (11th Cir. 2008) (“...Burgest's state drug charge was a different offense than his federal 

drug charges for Sixth Amendment purposes. Burgest's prior invocation of his right to 

counsel for the state drug charge did not attach to the uncharged federal drug offenses at 

the time of the interview.”).

Additionally, Lacey has not disputed that he contacted federal agents himself and 

expressly requested to speak with them outside of Deen’s presence. “When a defendant 

preempts his attorney's defense strategy, he thereafter cannot claim ineffective assistance 

of counsel.” Stano v. Dugger, 921 F.2d 1125, 1151 (11th Cir. 1991) (en banc).

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on given facts.’ ” United States v. Broce, 488 U.S. 563, 572 (1989) (quoting McMann 

v. Richardson, 397 U.S. 759, 770 (1970)).7

Lacey admitted during the September 14, 2011 interview that he had filed a 

false claim with the GCCF on behalf of a defunct business, and both counts of the 

indictment charged crimes related to this particular false claim. Because Lacey’s 

allegations do not establish that Williams’s failure to file a motion to suppress was 

“based on a lack of knowledge of the state of the evidence due to counsel's 

misunderstanding or ignorance of the law or failure to conduct adequate 

investigations[,]” Lacey has not alleged facts satisfying Strickland’s “deficient 

performance” prong regarding Williams’s failure to file a motion to suppress. Green, 

595 F.3d at 1249.

Because Lacey has not alleged facts that, if true, would entitle him to relief 

on this claim, see Winthrop-Redin, 767 F.3d at 1216, he is not due an evidentiary 

hearing on it, and the undersigned RECOMMENDS that Lacey’s § 2255 motion be 

DENIED as to his claim of ineffective assistance of counsel for failure to file a 

motion to suppress.

 7 Counsel’s performance is not deficient simply because a foregone challenge might have 

been, but was not certain to be, successful. Cf. Smith v. United States, 559 F. App'x 933, 

935-36 (11th Cir. 2014) (per curiam) (unpublished) (“[W]e conclude that Smith cannot 

prevail on his ineffective assistance of counsel claim. Specifically, Smith's claim fails 

because he cannot show based on the facts of this case and his counsel's perspective at the 

time, that his sentencing counsel's performance was deficient, or outside the wide range of 

professionally competent assistance. A challenge to Smith's child abuse conviction as an 

ACCA predicate was not certain to be successful given this circuit's law at the time. See 

United States v. Glasco, 223 F. App’x 951, 956 (11th Cir. 2007) (finding child abuse 

conviction constituted a ‘crime of violence’ for purposes of a sentencing enhancement).”), 

cert. denied, 135 S. Ct. 175 (2014).

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C. Ineffective Assistance at Sentencing

Lacey next claims that sentencing attorney Darley was ineffective for failing 

to pursue objections to two guidelines sentencing enhancements.8 As the 

Government correctly notes, attorney Williams filed objections to both sentencing 

enhancements prior to withdrawing as Lacey’s counsel (see Doc. 22), but attorney 

Darley expressly withdrew those objections at the sentencing hearing.9 (See Doc. 

64 at 13-14). He also claims that Darley was ineffective because he allowed Lacey’s 

sentence to be enhanced based on information provided by Lacey as part of his plea 

agreement.

The undersigned first addresses the Government’s argument that, even if 

Lacey could have successfully maintained these objections to the sentencing 

guidelines calculation, he cannot show prejudice by Darley’s failure to do so because 

“the Court agreed that it would have imposed the same sentence regardless of the 

guideline calculations.” (Doc. 80 at 15 (citing United States v. Keene, 470 F.3d 1347, 

1348–50 (11th Cir. 2006)). Keene stands for the proposition that, “[w]here a district 

judge clearly states that he would impose the same sentence[ under the factors 

outlined in 18 U.S.C. § 3553], even if he erred in calculating the guidelines, then 

any error in the calculation is harmless.” United States v. Barner, 572 F.3d 1239, 

 8 “Even though sentencing does not concern the defendant's guilt or innocence, ineffective 

assistance of counsel during a sentencing hearing can result in Strickland prejudice 

because ‘any amount of [additional] jail time has Sixth Amendment significance.’ ” Lafler v. 

Cooper, 132 S. Ct. 1376, 1386 (2012) (quoting Glover v. United States, 531 U.S. 198, 203 

(2001)).

9 While Darley filed a Sentencing Memorandum (Doc. 34) before the sentencing hearing, it 

addressed only the sentencing factors of 18 U.S.C. § 3553(a) and did not make additional 

objections to guideline calculations.

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31

1248 (11th Cir. 2009) (citing Keene, 470 F.3d at 1349) (emphasis added). See also 

Deonarinesingh v. United States, 542 F. App'x 857, 862 (11th Cir. 2013) (per 

curiam) (unpublished) (“The guideline error is harmless if the district court 

unambiguously expressed that it would have imposed the same sentence, even 

without the erroneous calculation.” (citing Barner, 572 F.3d at 1248) (emphasis 

added)). “[T]he burden of proving that an erroneous Sentencing Guidelines 

calculation is harmless is on the government.” Deonarinesingh, 542 F. App'x at 862 

n.3 (citing United States v. Paley, 442 F.3d 1273, 1278 (11th Cir. 2006) (per 

curiam)).

In announcing Lacey’s sentence, the Court specifically found “that the 

guidelines in this case are appropriate[,]” “found the advisory guideline range is 

appropriate for the facts and circumstances of this case and provides a reasonable 

sentence[,]” and stated that it was “going to sentence [Lacey] to the low end of the 

guideline based on...[his] attempt to cooperate because, otherwise, I would follow 

the recommendation that I should go higher than that.” (Sentencing Hearing 

Trans., Doc. 64 at 26-27). Following the Court’s announcement of the sentence, the 

Government, concerned “if the 11th Circuit were to review,” asked the Court “to 

make a statement whether this would be an appropriate sentence, regardless of the 

guideline calculations.” (Id. at 28). The Court responded:

Yes. I believe the sentence is a reasonable sentence, considering his 

background, in this case. Now, if I -- if it was incorrect that he received 

the proffer -- that he gave you this information before the proffer, you 

know, I think that would probably -- I would not have held that against 

him. But in this case the only evidence I have is that he gave you that 

information before the proffer. So, with that, I find that to be a 

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32

reasonable sentence.

There’s nothing else...

(Id. at 28).10

In announcing Lacey’s sentence, the Court made repeated reference to the 

“guideline range” as “reasonable” and “appropriate,” while making no mention of § 

3553. In response to the Government’s invitation after the sentence was 

announced, the Court repeated that the sentence was “reasonable,” again without 

referencing § 3553 or making some statement affirmatively indicating that it would 

have imposed the same sentence regardless of any guidelines error. Upon 

consideration, the undersigned declines to accept the Government’s position that 

any guideline error in Lacey’s sentence is “harmless” under Keene and its progeny. 

Compare Barner, 572 F.3d at 1248 (“The U.S. Attorney argues that we need not 

reach Barner's challenge to the manner in which the Sentencing Guidelines were 

applied here, because any error was harmless. Specifically, he relies on the district 

court judge's statement that “having weighed and considered the imposition of a 

sentence in this case under both the [Sentencing Guidelines], as well as the factors 

outlined in 18 U.S.C. 3553, and the Court having concluded that a sentence under 

either would be about the same, the Court has decided to impose a sentence of 87 

months pursuant to the guidelines because the custody guideline range for this case 

is fair and reasonable in light of the facts and circumstances surrounding the 

 10 One interpretation of the answer “Yes” to the Government’s invitation is that the Court 

was agreeing “this would be an appropriate sentence, regardless of the guideline 

calculations.” However, one could also reasonably interpret the answer of “Yes” as the 

Court simply affirming that it would like to make an additional statement.

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33

Defendant's role in this conspiracy.” Where a district judge clearly states that he 

would impose the same sentence, even if he erred in calculating the guidelines, then 

any error in the calculation is harmless. The district judge here made no such 

statement. Instead, he indicated that the sentence was ‘pursuant to the guidelines,’ 

and the factors outlined in 18 U.S.C. § 3553. This statement does not provide the 

basis for a holding of harmless error. []Obviously, where the district judge chooses 

to sentence within the range prescribed by the Sentencing Guidelines, an error in 

their calculation cannot be harmless. Moreover, even where he chooses to impose a 

sentence based on the considerations prescribed in 18 U.S.C. § 3553, he must take 

into account the range prescribed by the Sentencing Guidelines. See 18 U.S.C. § 

3553(a)(4) (2006). Consequently, the Guidelines range must be calculated correctly 

in the first instance.” (internal citation omitted)), with Keene, 470 F.3d at 1348-49 

(“After the court overruled Keene's objection and found what it believed to be the 

appropriate guideline range, taking into consideration the two-step enhancement, 

the court made clear that even if its interpretation and application of U.S.S.G. § 

2B3.1(b)(2)(F) was wrong, it would still hand down the same 120-month sentence: 

‘And I will say for the record that even if the guideline calculations are wrong, my 

application of the sentencing factors under Section 3553(a) would still compel the 

conclusion that a 10-year sentence [120 months] is reasonable and appropriate 

under all the factors that I considered.’ ”), and Ward v. United States, Civil Action 

No. 12-00269-CG-N, 2014 WL 658004, at *4 (S.D. Ala. Feb. 19, 2014):

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34

[excerpt from Ward]

At the sentencing hearing, the Assistant United States Attorney 

sought the following clarification from the Court:

[AUSA] BEDWELL: ... But if I might, one additional point of 

clarification. And I perhaps just missed it. Did the Court find 

that the sentence was appropriate even if the guidelines were 

incorrectly calculated?

THE COURT: Yes. I do find that the 151–month sentence is 

appropriate to meet the statutory purposes of sentencing ... 

[e]ven if that was not the guideline sentence.

(Doc. 80, sentencing hearing tr., at 51:24–52:8.) And, in denying 

Ward's direct appeal, the Eleventh Circuit—relying on this statement 

by the trial court—held that, because the sentence imposed was 

reasonable, “even if we were to assume that the court erred in its 

guideline calculations, the errors were harmless.” Thus, because 

Ward's guideline calculation error was harmless, his counsel's failure 

to raise the issue; that is, object to how the Guidelines were calculated,

even if deficient, could not have resulted in prejudice.

(footnote and some citations and quotations omitted).11

 11 See also Deonarinesingh, 542 F. App'x at 862:

In cases on direct appeal, “[a]n error in the district court's calculation of the 

Sentencing Guidelines range warrants vacating the sentence, unless the 

error is harmless.” United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 

2009). The guideline error is harmless if the district court unambiguously 

expressed that it would have imposed the same sentence, even without the 

erroneous calculation. Id. at 1248. If the error is harmless, we need only 

inquire whether the sentence is reasonable. See United States v. Keene, 470 

F.3d 1347, 1349 (11th Cir. 2006). For example, in United States v. Dean, 517 

F.3d 1224, 1232 (11th Cir. 2008), we noted that, “[a]t sentencing, the district 

court judge also stated that he still would have imposed [the same 

imprisonment term] as a reasonable sentence, regardless of any guidelines

miscalculation, because of the facts of the case and defendant's misleading 

and shifting testimony offered in an effort to hide the truth.” In Keene, the 

district court stated that “even if the guideline calculations are wrong, my 

application of the sentencing factors under Section 3553(a) would still compel 

the conclusion that a 10–year sentence ... is reasonable and appropriate 

under all the factors that I considered.” 470 F.3d at 1349.

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1. Criminal History Category

First, Lacey claims that Darley was ineffective for failing to object to the 

inclusion of a prior offense in calculating his criminal history category. In 

determining a defendant’s criminal history category under the sentencing 

guidelines, the following directives apply:

(a) Add 3 points for each prior sentence of imprisonment exceeding one 

year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at least 

sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a 

total of 4 points for this subsection.

...

 

In contrast, where the district court has emphasized that the guideline range 

influenced the sentence, we have held that a calculation error was not 

harmless. See United States v. Paley, 442 F.3d 1273, 1278–79 (11th Cir. 2006) 

(per curiam). In Paley, our conclusion regarding the harmlessness of the 

sentencing error was based largely on the district court's statement that it 

had been “a difficult sentencing” and that it had been “greatly influenced by 

the Advisory Guidelines.” See id. We found that the erroneous calculation 

was not harmless in spite of the fact that the district court emphasized that a 

sentence of 18 months' imprisonment “adequately reflect [ed] the seriousness 

of the offense and provide[d] just and reasonable punishment.” Id. at 1278.

Here, then, the district court's reliance on Keene on collateral review is 

misplaced. During sentencing, the district court repeatedly stated that it 

relied on the guidelines range and the government's “earlier announced 

position that they would not be recommending more than the low end of the 

guideline range.” The district court mentioned the precise length of the 

sentence it would eventually impose only as an explanatory aside to its 

declaration “that the government ... recommends the low end.” Although the 

court stated that “it ha[d] the authority to sentence anywhere within the 

range or without the range,” such a statement does not negate the court's 

reliance on the guidelines. Even though the court noted its authority to 

disregard the guidelines in reaching a sentence, it also emphasized that the 

guidelines would be “highly suggestive of the appropriate and proper 

sentence that should be imposed.” Under these circumstances, it is clear that 

the erroneous calculation “affect[ed] the district court's selection of the 

sentence imposed.” Paley, 442 F.3d at 1278 (internal quotation marks 

omitted). The erroneous calculation here is therefore not harmless.

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U.S.S.G. § 4A1.1.

Pursuant to § 4A1.1(c), Lacey’s Presentence Investigation Report (PSI) added 

one point for Lacey’s November 2001 conviction in an Alabama municipal court for 

carrying a pistol without a permit, which resulted in a sentence of a $100 fine and 

court costs. In objecting to this section of the PSI, attorney Williams stated:

Pursuant to U.S.S.G. subsection 4A1.2(c) (1), certain offenses are only 

counted if the sentence was for a term of probation of at least one year, 

or a term of imprisonment of at least 30 days. Such offenses include 

"the following prior offenses and offenses similar to them, by whatever 

name they are known": Careless or reckless driving, Contempt of court, 

Disorderly conduct or disturbing the peace, Driving without a license 

or with a revoked or suspended license[.] 

As stated, Defendant only received a fine for the charge of no pistol 

permit, which is similar to the offense of driving while license revoked 

or suspended. For this reason the Defendant objects to the One (1) 

point enhancement recommended in the PSI.

(Doc. 22 at 3).

The Sentencing Guidelines provide that “[s]entences for misdemeanor 

and petty offenses are counted” toward a defendant's criminal history 

score, subject to two exceptions in subsections 4A1.2(c)(1) and 

4A1.2(c)(2). U.S.S.G. § 4A1.2(c). Under subsection (c)(1), certain 

enumerated offenses and “offenses similar to them” are to be 

disregarded unless “(A) the sentence was a term of probation of more 

than one year or a term of imprisonment of at least thirty days, or (B) 

the prior offense was similar to an instant offense.” Id. § 4A1.2(c)(1)... 

Under subsection (c)(2), certain enumerated offenses and “offenses 

similar to them” are “never counted” toward a defendant's criminal 

history score...

...“Because the Guidelines' default rule for past offenses is one of 

inclusion, any doubts should be resolved in favor of counting the 

offense.” United States v. Hernandez, 634 F.3d 317, 319 (5th Cir. 2011). 

“Moreover, the defendant has the burden of showing that the exception 

applies.” United States v. Martinez–Santos, 184 F.3d 196, 200 (2d Cir. 

1999); see also United States v. Howard, 923 F.2d 1500, 1505 (11th Cir. 

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37

1991) (“[T]he Guidelines have been interpreted to contemplate that the 

defendant bears the burden of establishing the applicability of 

Guideline sections which would reduce the offense level.”).

An Application Note to the Sentencing Guidelines lists five factors that 

[a court] should consider, in a “common sense approach,” to determine 

whether an unlisted offense is similar to one enumerated in subsection 

(c)(1) or subsection (c)(2):

In determining whether an unlisted offense is similar to an 

offense listed in subsection (c)(1) or (c)(2), the court should use a 

common sense approach that includes consideration of relevant 

factors such as (i) a comparison of punishments imposed for the 

listed and unlisted offenses; (ii) the perceived seriousness of the 

offense as indicated by the level of punishment; (iii) the 

elements of the offense; (iv) the level of culpability involved; and 

(v) the degree to which the commission of the offense indicates a 

likelihood of recurring criminal conduct.

U.S.S.G. § 4A1.2 cmt. n.12(A). “Sentencing Guidelines commentary 

explaining or interpreting the Guidelines is ‘authoritative unless it 

violates the Constitution or a federal statute, or is inconsistent with, or 

a plainly erroneous reading of, that guideline.’ ” United States v. 

Cortes–Salazar, 682 F.3d 953, 954 (11th Cir. 2012) (quoting Stinson v. 

United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915, 123 L.Ed.2d 598 

(1993)). [Courts] apply these five factors mindful that, although the 

definitions of “disorderly conduct” and “public intoxication” within the 

meaning of the Sentencing Guidelines are matters of federal law, 

[they] look to state law definitions of these crimes for guidance. See 

United States v. Palomino Garcia, 606 F.3d 1317, 1327–28 (11th 

Cir.2010).

United States v. Garcia-Sandobal, 703 F.3d 1278, 1283-84 (11th Cir. 2013).12

 12 The “prior offenses” specifically listed in § 4A1.2(c)(1) are Careless or reckless 

driving, Contempt of court, Disorderly conduct or disturbing the peace, Driving without a 

license or with a revoked or suspended license, False information to a police officer, 

Gambling, Hindering or failure to obey a police officer, Insufficient funds check, Leaving 

the scene of an accident, Non-support, Prostitution, Resisting arrest, and Trespassing. 

The “prior offenses” specifically listed in § 4A1.2(c)(2) are Fish and game violations, 

Hitchhiking, Juvenile status offenses and truancy, Local ordinance violations (except those 

violations that are also violations under state criminal law), Loitering, Minor traffic 

infractions (e.g., speeding), Public intoxication, and Vagrancy.

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Lacey argues that his conviction for carrying a pistol without a permit was 

due to be excluded from his criminal history calculation under § 4A1.2(c)(1).13 (See

Doc. 69 at 8). However, no such offense is specifically listed in § 4A1.2(c)(1). “An 

offense is excludable from one's criminal history if it is ‘similar to’ a list of offenses 

that are expressly excludable, among which [is] ‘driving without a license or with a 

revoked or suspended license’...” United States v. Caputo, 978 F.2d 972, 977 (7th 

Cir. 1992) (quoting U.S.S.G. § 4A1.2(c)(1)), and Williams argued that the offense of 

carrying a pistol without a permit is sufficiently “similar to the offense of driving 

while license revoked or suspended” to justify the application of § 4A1.2(c)(1) to that 

offense. See supra. However, neither Williams (then) nor Lacey (now) has cited any 

authority supporting this proposition (and the undersigned has found none), nor has 

Lacey made any attempt to apply the five-factor “common sense approach” to meet 

his burden to show that one of the exceptions under § 4A1.2(c) applies. Because 

Lacey has made no attempt to demonstrate merit to his claim that one of the 

exceptions in § 4A1.2(c) applied to his conviction for carrying a pistol without a 

 13 Had Lacey not received the additional criminal history point for this conviction (which 

would have left him with only 6 criminal history points), his criminal history category 

would have been III instead of IV. With an offense level of 19, his guideline range would 

thus have been reduced from 46-57 years to 37-46 years. See U.S.S.G. Ch. 5, Part A. 

“While the reduced guideline range would not necessarily result in a lower sentence, see 

United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 757, 160 L. Ed. 2d 621 (2005) 

(rendering the Sentencing Guidelines advisory),...the district court sentenced [Lacey] at the 

lowest end of the guideline range, which might indicate that the court would again choose 

the bottom end of any lower guideline range. Therefore, [the undersigned] cannot say that 

the record conclusively demonstrates the absence of prejudice at sentencing.” Sanz De La 

Rosa v. United States, 481 F. App'x 480, 483 n.4 (11th Cir. 2012) (per curiam) 

(unpublished).

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permit, he has not demonstrated that attorney Darley acted deficiently in failing to 

pursue this objection at sentencing.14 15

2. “Manager or Supervisor” Enhancement

Second, Lacey claims that Darley was ineffective for not challenging an

enhancement imposed under U.S.S.G. § 3B1.1(b), which “provide[s] for a three-level 

enhancement to the base offense level ‘[i]f the defendant was a manager or 

supervisor (but not an organizer or leader) and the criminal activity involved five or 

more participants or was otherwise extensive.’ ” United States v. Baldwin, No. 13-

12973, 2014 WL 7173150, at *16 (11th Cir. Dec. 17, 2014) (published) (quoting 

U.S.S.G. § 3B1.1(b)).

To apply the enhancement “the defendant must have been the 

organizer, leader, manager, or supervisor of one or more other 

 14 In withdrawing the two objections Lacey advances on collateral review, Darley stated at 

the sentencing hearing: “Today, what we are challenging is only the first objection. The 

other two, based on my research, are appropriate in the situation. So we would like to focus 

on the first, and that is our understanding and that's what our position is today.” (Doc. 64 

at 3. See also id. at 14 (“[B]ased on my research and the point from the criminal conduct in 

North Port, we believe that, based on our reading, the law, and the guidelines, that's 

appropriate...”)). The record, therefore, indicates that Darley looked into this objection 

before declining to pursue it and that this decision was a strategic one made for the purpose 

of concentrating on what Darley believed to be a stronger objection. Lacey has not shown 

that this decision was unreasonable.

15 In one of his replies, Lacey claims that he “never had legal representation” on the 

carrying charge and that the “plea was done by a written letter from [prison] in or [sic] 

March 2006 just so [Lacey] could rid himself of this pending charge and detainer to 

participate in the drug program and halfway house.” (Doc. 81 at 8). However, Lacey’s 

claim that this was an uncounseled plea is contradicted by his PSI, which stated that he 

was represented by a public defender in that action. (See Doc. 23 at 12). Regardless, this 

objection is without merit, as “[p]rior sentences, not otherwise excluded, are to be counted 

in the criminal history score, including uncounseled misdemeanor sentences where 

imprisonment was not imposed.” U.S.S.G. § 4A1.2, cmt. (backg’d) (emphasis added). 

See also United States v. Golden, 669 F.3d 901, 903 (8th Cir. 2012) (“The district 

court...correctly scored one criminal history point under § 4A1.1(c) for a prior uncounseled 

misdemeanor that resulted in no jail time. See U.S.S.G. § 4A1.2, comment. (backg'd.).”).

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participants.” U.S.S.G. § 3B1.1, cmt. n.2. “A ‘participant’ is a person 

who is criminally responsible for the commission of the offense, but 

need not have been convicted.” Id., cmt. n.l. Some factors the court may 

consider include:

the exercise of decision making authority, the nature of 

participation in the commission of the offense, the recruitment 

of accomplices, the claimed right to a larger share of the fruits 

of the crime, the degree of participation in planning or 

organizing the offense, the nature and scope of the illegal 

activity, and the degree of control and authority exercised over 

others.

Id., cmt. n.4; see United States v. Njau, 386 F.3d 1039, 1041 (11th Cir.

2004) (noting that the district court could consider the factors in 

determining the nature of the defendants role).

Id.

“[W]hen a defendant challenges a factual basis of his sentence, ‘the 

government has the burden of establishing the disputed fact by a preponderance of 

the evidence.’ ” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004) 

(quoting United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001)). “The district 

court's factual findings for purposes of sentencing may be based on, among other 

things, evidence heard during trial, undisputed statements in the PSI, or evidence 

presented during the sentencing hearing.” Id. (citing United States v. Saunders, 

318 F.3d 1257, 1271 n.22 (11th Cir. 2003)).

Lacey claims that Darley was ineffective for failing to pursue an objection to 

this enhancement because Lacey “had no co-defendants[] or criminal participants[,]”

because the “government could not single out one person whom participated with 

[Lacey] or was controlled by [him,]” and because the “agents were unable to locate 

and interview other individuals listed who it is believed [Lacey] aided in filing false 

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claims because of false addresses on the claims.” (Doc. 69 at 8). Thus, Lacey 

claims, “[t]his case fell short of showing willing participants who knew criminal 

activities were being committed.” (Id.). 

Nothing in § 3B1.1 or its commentary indicates that participants must be 

specifically identified. Lacey admitted in the Factual Resume of his Plea 

Agreement that “he has created false documents for others in an attempt to aid 

them in getting money from the GCCF” (Doc. 17 at 5), and Lacey did not dispute the 

statement in his PSI that “[b]etween October 2010, and November 2010, [Lacey] 

filed approximately 60 fraudulent claims against BP on behalf of other; 16 of which 

were known to law enforcement prior to the defendant’s proffer of information.” 

(Doc. 23 at 7, ¶ 25). 

Moreover, at sentencing, the Government called as a witness Joseph Paul, a 

Secret Service agent involved in investigating Lacey’s fraudulent GCCF claims. 

Agent Paul testified that Lacey assisted eight others in filing fraudulent claims 

with the GCCF in exchange for receiving a percentage of the claim.16 (See Doc. 64 

at 4-10). Contrary to Lacey’s assertion, Agent Paul identified these eight 

individuals by their last names, and he noted that all of the fraudulent claims “had 

in common the same IP address, which indicated they were all filed from the same 

computer, or they all shared the same business name or business address on the 

 16 Agent Joe Lea was the primary case agent for Lacey’s case. At the time of the sentencing 

hearing, he was on vacation. Agent Paul, a “colleague” of Agent Lea, at the request of the 

Government and Lea, “reviewed the file and spoke with him about this investigation” in 

order to testify at the hearing. (Doc. 64 at 4-5). Agent Paul affirmed that he felt 

“comfortable and competent to testify about what the loss amount is as it relates to what 

documents you've reviewed and in speaking with the case agent[.]” (Id. at 5).

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supporting documentation submitted.” (Id. at 6). Agent Paul also agreed that 

“Lacey himself confessed to being involved in those fraudulent claims...” (Id.).

Lacey has identified no evidence that could have been used to rebut these 

admissions and testimony, which were sufficient to justify application of § 3B1.1(b).

Cf. Baldwin, 2014 WL 7173150, at *16 (“Belizaire's factual proffer accompanying 

his guilty plea indicates that he acted as a manager. Belizaire received names and 

social security numbers from co-conspirators for the purpose of submitting 

fraudulent returns. Belizaire also recruited other unindicted co-conspirators to 

obtain addresses of residences where the debit cards could be received. Further, 

Belizaire was deeply involved in the conspiracy. He sent and received victims' 

personal identification information used to file the fraudulent tax returns as well as 

debit card account numbers that were to be used for receiving the victims' tax 

refunds. Many of the fraudulent tax returns were also submitted from an IP 

address registered in Belizaire's name. Finally, Belizaire made numerous 

withdrawals of the distributed returns with the debit cards. Taking the factors 

prescribed by the statute into account, the district court did not clearly err in 

finding that Belizaire was a manager or supervisor of one or more participants.”). 

Lacey’s allegations do not show that Darley acted deficiently in failing to pursue an 

objection to that enhancement.

3. Use of Proffer Information

Regarding his claim that Darley allowed the Government to enhance his 

sentence using information provided as part of Lacey’s cooperation agreement, 

Lacey, throughout his various filings, has alleged as follows:

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• “Petitioner would like to have a [sic] evidentiary hearing on the breach of his 

proffer...All persons mentioned at sentencing by the Government were given 

to agents by petitioner and were not on the list from petitioner’s trunk. 

Agents have not interviewed nor located any person mentioned at 

sentencing.” (Doc. 71 at 7).

• “[P]etitioner states again that his proffer was used against him...Agent Paul 

swore under oath that he was sure the government know about this before 

the proffer...This agent blatantly committed perjury in open court. The 

agent nor the government knew any dates and counsel failed to 

object...Records show no interview with any individuals regarding the 

relevant conduct. The only information they have linking petitioner to any 

claimant was either seized illegally from his trunk or obtained after the 

proffer.” (Doc. 81 at 7).

• “[C]ounsel allowed the government to use information from his 4/19/2012 

proffer meeting at this sentencing...Counsel[] was ineffective for not having a 

copy of the proffer at sentencing. The Government failed to produce one as 

well. The case agent Joseph Lea was on vacation, nor were any witnesses 

present, no case file, no affidavits from the eight people used to enhance 

petitioner’s sentence, no dates when or if agents spoke with these claimants, 

nor a date to establish if the information came after or before the proffer... 

Counsel[] declined to point out to the court that the government fell 

extremely short of proving a preponderance of evidence...to prove relevant 

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44

conduct. Counsel failed to request the sentencing be post-poned so that the 

sentencing factors be resolved...Counsel in this case failed to raise the issue 

of holding an evidentiary hearing to determine if the government was using 

information against this petitioner that was given after his proffer. During 

sentencing the AUSA admitted that she thought the proffer agreement might 

be an issue before sentencing but refuse [sic] to present or bring the proffer to 

sentencing to resolve the dispute.” (Doc. 82 at 15-17).

U.S.S.G. § “1B1.8 provides that, ‘[w]here a defendant agrees to cooperate 

with the government by providing information concerning unlawful activities of 

others, and ... the government agrees that self-incriminating information ... will not 

be used against the defendant, then such information shall not be used in 

determining the applicable guideline range.’ ” United States v. Pham, 463 F.3d 

1239, 1243 (11th Cir. 2006) (per curiam) (quoting U.S.S.G. § 1B1.8(a)). “However, 

some information is also excepted from the rule, such as information known to the 

government prior to entering the agreement...” Id. (citing U.S.S.G. § 1B1.8(b)(1)). 

Additionally, “so long as the information is obtained from independent sources or 

separately gleaned from codefendants, it may be used at sentencing without 

violating § 1B1.8.” Id. at 1244. “[W]here a defendant alleges a violation of U.S.S.G. 

§ 1B1.8 in district court, the court is required to make factual findings that are 

reviewed for clear error.” Id.

Paragraph 25 of Lacey’s PSI stated: “Between October 2010, and November 

2010, the defendant filed approximately 60 fraudulent claims against BP on behalf 

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45

of others; 16 of which were known to law enforcement prior to the defendant’s 

proffer of information. Of the sixteen claims known to law enforcement, prior to the 

defendant’s proffer, there was a known intended loss of at least $178,967.00, which

included an actual loss of at least $93,200.00.” (Doc. 23 at 7). Though Williams 

noted this factual assertion in the sentencing objections he filed on Lacey’s behalf 

(see Doc. 22 at 1), he did not object to its veracity. Lacey himself (rather than 

Darley) brought this issue to the Court’s attention at the sentencing hearing, 

stating: “A lot of those names were names I gave them at my proffer agreement 

with -- I didn't know they was supposed to use it against me.” (Doc. 64 at 20). The 

Court asked the Government to “respond to the part that you used information after 

the proffer[,]” to which the Assistant United States Attorney stated: “It's my 

understanding, Your Honor, that the information as it relates to anything that we 

have used here today came before the proffer.” (Id. at 22). 

The Court then asked the Government: “Well, do you want to put on any 

evidence about that, just to make the record clear, so that we don't have to address 

this again in another proceeding?” (Id.). In response, the Government recalled 

Agent Paul. On direct examination by the Government, Agent Paul testified: “In 

speaking with Agent Lea, the case agent, it's my understanding all these names 

were provided prior to the proffer.” (Id. at 23). The Court then asked the agent: “So 

do you have a timeline of when [Lacey] was arrested and he talked to y'all and then 

there was an agreement and then he talked to y'all two more times or something 

like that?” (Id. at 23-24). Agent Paul responded: “I don't have Agent Lea's case file 

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46

with me to have the dates of all this.” (Id. at 24). At this point, the Assistant 

United States Attorney interjected:

But, Your Honor, I would proffer to the court that specifically we 

thought it might -- that this one might be an issue as it relates to these 

names. So I asked Joe point blank when this information came to our 

attention, and he told me that these names we learned before any 

proffer agreement. And I think he reiterated that to Mr. Paul who 

stated it to the court.

(Id.). Agent Paul affirmed this proffer, stating: “That’s correct.” (Id.).

On cross-examination, Darley questioned the agent as follows:

Q. Agent Paul, do you have the dates that Mr. Lacey supposedly 

provided this information pre-proffer to Agent Lea?

A. No, I do not.

Q. Do not. No written documents or anything of that sort?

A. No. I don't have anything with me that details that.

Q. All right. So you don't know the day he was interviewed?

A. I do not.

Q. Do you know the day he signed the proffer?

A. I do not.

Q. Do you know the day he was arrested?

A. No.

MR. DARLEY: Nothing further, Judge.

(Id. at 24-25).

After hearing this and announcing Lacey’s sentence, the Court stated: “Now, 

if I -- if it was incorrect that he received the proffer -- that he gave you this 

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47

information before the proffer, you know, I think that would probably -- I would not

have held that against him. But in this case the only evidence I have is that he 

gave you that information before the proffer.” (Id. at 28).

The Eleventh Circuit has clearly held that

absent a stipulation or agreement between the parties, an attorney's 

factual assertions at a sentencing hearing do not constitute evidence 

that a district court can rely on. See, e.g., United States v. Onofre–

Segarra, 126 F.3d 1308, 1310–11 (11th Cir. 1997) (“The arguments of 

counsel and the challenged conclusions of the presentence 

investigation report ... are generally an insufficient basis upon which 

to depart from the guidelines.”); United States v. Wilson, 884 F.2d 

1355, 1356 (11th Cir. 1989) (“At the sentencing hearing defendant's 

counsel argued that defendant's plea negotiations demonstrated 

acceptance of responsibility but offered no evidence that would 

establish his qualification for a reduction under this section.... Because 

at sentencing defendant offered no evidence of acceptance of 

responsibility and the evidence at trial did not clearly demonstrate 

such an acceptance, defendant simply failed to meet his burden of 

proof[.]”). 

United States v. Washington, 714 F.3d 1358, 1361-62 (11th Cir. 2013). Accord 

United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013) (“Absent a 

stipulation or agreement between the parties, however, an attorney's factual 

assertions alone do not constitute evidence that a District Court can rely on[ at 

sentencing].” (citing Washington, 714 F.3d at 1361)). As such, the assurances by 

counsel for the Government that the challenged information was known pre-proffer 

did not constitute evidence that could be considered in determining whether a 

violation of § 1B1.8 had occurred. The Court acknowledged as much when it 

invited the Government to put on “evidence about that...” (Doc. 64 at 22).

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Agent Paul’s testimony that the challenged information was known preproffer was based entirely on out-of-court assurances made by Agent Lea and thus 

constituted hearsay. While “ ‘the law of this Circuit clearly provides that reliable 

hearsay can be considered during sentencing[,]’ ” Rodriguez, 732 F.3d at 1305 

(quoting United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001)) (alteration 

added), a “district court may[ only] rely on such evidence ‘as long as the evidence 

has sufficient indicia of reliability, the court makes explicit findings of fact as to 

credibility, and the defendant has an opportunity to rebut the evidence.’ ” Zlatogur, 

271 F.3d at 1031 (quoting United States v. Anderton, 136 F.3d 747, 751 (11th Cir.

1998) (per curiam))). However, “[w]hile it may be advisable and in some instances 

necessary for a district court to make distinct findings regarding the reliability of 

hearsay statements used at sentencing, the absence of such findings does not 

necessarily require reversal or remand where the reliability of the statements is 

apparent from the record.” United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 

2000). Accord United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009) (“The 

district court did not make explicit findings about the reliability of Agent Gistinger's 

hearsay testimony, but that failure ‘does not necessarily require reversal or remand 

where the reliability of the statements is apparent from the record.’ ” (quoting 

Gordon, 231 F.3d at 761)); United States v. Harper, 339 F. App'x 974, 976 (11th Cir. 

2009) (unpublished) (per curiam) (“In United States v. Gordon, 231 F.3d 750 (11th 

Cir. 2000), we held that where there was materially consistent evidence from other 

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sources, to be considered along with the hearsay, such evidence could establish 

reliability.”).

While Lacey has made some conclusory allegations that he believes Agent 

Paul was not telling the truth on the stand, a close reading of Lacey’s allegations 

regarding this issue, particularly his repeated emphasis that the Government 

provided “no dates” and had not shown they had interviewed any of the named 

individuals, indicates that Lacey is in fact simply arguing that Agent Paul’s 

testimony was insufficient to meet the Government’s burden of proof by a 

preponderance of the evidence. Lacey, however, has cited no authority indicating 

that such specificity is required for the Government to meet its burden.

Moreover, Agent Paul had already admitted that he was not the lead case 

agent and that his testimony was based largely on review of Lacey’s case file and 

consultation with the lead agent (see Doc. 64 at 4-5), and such testimony was 

accepted by the Court, without objection from Lacey, to prove other sentencing 

factors. Thus, the reliability of Agent Paul’s hearsay testimony is apparent from 

the record. Additionally, despite the fact that Lacey himself had brought the proffer 

issue to the Court’s attention, Lacey made no effort to testify or speak out in 

disagreement with Agent Paul’s testimony on the issue, nor has he alleged 

instructing Darley to do so.

Finally, Agent Paul’s testimony indicates that the eight individuals’ 

fraudulent claims could have been traced to Lacey from independent sources –

namely, from the fact that they “had in common the same IP address, which 

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indicated they were all filed from the same computer, or they all shared the same 

business name or business address on the supporting documentation submitted.” 

(Doc. 64 at 6).

In sum, Lacey’s allegations in support of his challenge regarding the alleged 

use of proffer information have failed to demonstrate that he is entitled to relief 

under Strickland. Accordingly, the undersigned RECOMMENDS that Lacey’s 

claims of ineffective assistance of counsel at sentencing be DENIED.

D. Discovery Motions

Lacey has moved “to subpoena his emails from Baldwin County Correctional 

Facility Inmate Emails which was in reference to petitioner inquiring to other 

attorneys Jim Byrd and Sid Harrell[17] about if police can search your vehicle if your

license is suspended. The reason was because Counsel Blackmon always told 

[Lacey] that police could search your vehicle if your license was suspended.” (Doc. 

82 at 22). Lacey has also made multiple motions (Docs. 83, 86) that the 

Government be compelled to produce the RADD complaint mentioned in his factual 

resume as initiating the investigation into Lacey’s fraudulent GCCF claims. (See 

Doc. 17 at 2 (“This case originated April 2011, when SA Sean Connor contacted the 

Mobile Resident Office of the United States Secret Service. SA Connor is a Secret 

Service Special Agent assigned to the National Center for Disaster Fraud in Baton 

Rouge, LA...SA Connor provided a RADD Complaint report that indicated a 

complaint was called into the fraud hotline. This complaint was made against 

 17 Harrell served as appointed counsel for Lacey in another criminal action in this district, 

1:13-cr-112-KD-C.

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Adrian Lacey, indicating that he is filing claims for people in exchange for keeping 

part of the assistance provided by the Gulf Coast Claims Facility (GCCF) Fund.”).

Rule 6 of the Rules Governing Section 2255 Proceedings for the United States 

District Courts provides, in relevant part:

(a) Leave of Court Required. A judge may, for good cause, authorize 

a party to conduct discovery under the Federal Rules of Criminal 

Procedure or Civil Procedure, or in accordance with the practices and 

principles of law...

(b) Requesting Discovery. A party requesting discovery must 

provide reasons for the request. The request must also include any 

proposed interrogatories and requests for admission, and must specify 

any requested documents.

“A habeas proceeding is not a fishing expedition...The Supreme Court has 

defined ‘good cause’ in th[e] context[ of collateral review] as specific allegations that 

give a court ‘reason to believe that the petitioner may, if the facts are fully 

developed, be able to demonstrate that he is ... entitled to relief.’ ” Teti v. Bender, 

507 F.3d 50, 60 (1st Cir. 2007) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 

(1997)). As explained above, the validity of the August 30, 2011 traffic stop and 

search need not be examined in order to deny Lacey relief. Thus, Lacey has not 

shown “good cause” to compel discovery regarding the emails. 

Lacey’s request for the RADD complaint appears premised on his belief that 

there is in fact no such complaint and that, contrary to the assertion in the Factual 

Resume that the federal criminal investigation against him “originated in April 

2011” based on this complaint, the investigation actually originated from the 

evidence seized during the August 30, 2011 traffic stop and search. Because, Lacey 

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figures, all evidence against him taken from that point on was due to be suppressed, 

and because the RADD complaint doesn’t exist, the Government would be left with 

no admissible evidence to support a conviction. (See Doc. 83 at 1-2 (“Absent this 

complaint, petitioner boldly asserts that his case started from the August 2011 

beyond a reasonable doubt...[I]f the government cannot produce this alleged 

complaint petitioner ask this court grant the relief sought by petitioner which is a 

vacation of his guilty plea and then case being dismissed due to the exclusionary 

rule being applicable.”)). Construing this request broadly, Lacey apparently 

believes he must make this request in order to further show that he was prejudiced 

by Williams’s failure to file a suppression motion. 

As explained above, the undersigned has determined that Lacey has not 

alleged facts satisfying Strickland’s “deficient performance” prong regarding 

Williams’s failure to file a motion to suppress; thus, the undersigned need not 

address Strickland’s “prejudice” prong regarding this claim. Therefore, even if the 

Court were to order production of the RADD complaint, the complaint’s production, 

or lack thereof, would still not entitle Lacey to relief on his claim.

Accordingly, the undersigned RECOMMENDS that Lacey’s various requests 

for discovery (Doc. 82 at 22; Doc. 83; Doc. 86) be DENIED.

E. “Motion Requesting an Urgent Evidentiary Hearing/Motion to 

Amend Pending 18 USC § 2255” (Doc. 84)

In his “Motion Requesting an Urgent Evidentiary Hearing/Motion to Amend 

Pending 18 USC § 2255” (Doc. 84), Lacey seeks to add a claim that the Court 

enhanced his sentence under the guidelines in violation of United States v. Booker, 

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543 U.S. 220 (2005). “Booker holds that ‘the Sixth Amendment right to trial by jury 

is violated where under a mandatory guidelines system a sentence is increased 

because of an enhancement based on facts found by the judge that were neither 

admitted by the defendant nor found by the jury.’ ” United States v. Smith, 480 

F.3d 1277, 1281 (11th Cir. 2007) (quoting United States v. Rodriguez, 398 F.3d 

1291, 1298 (11th Cir.) (emphasis in original), cert. denied, 545 U.S. 1127 (2005)).

First, because all errors Lacey claims in this motion could have, but were not, 

raised on direct appeal (or, at least, did not give the Eleventh Circuit the 

opportunity to decide it), he has procedurally defaulted his claims under Booker and 

thus may not raise them on collateral review. Second, the record conclusively 

indicates that the Court treated the guidelines system as advisory, not mandatory18

– accordingly, Booker is not implicated here. “A misapplication of advisory 

sentencing guidelines does not violate an ancient right, nor does it raise 

constitutional concerns.” Spencer v. United States, No. 10-10676, 2014 WL 6234529, 

at *6 (11th Cir. Nov. 14, 2014) (en banc) (published). “When a prisoner...alleges 

that his ‘sentence was imposed in violation of the ... laws of the United States ... or 

is otherwise subject to collateral attack,’ 28 U.S.C. § 2255(a), a district court lacks 

the authority to review the alleged error unless the claimed error constitutes a 

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

When...a federal prisoner, sentenced below the statutory maximum, complains of a 

 18 (See, e.g., Sentencing Trans., Doc. 64 at 27 (“I find a [sic] the advisory guideline range is 

appropriate for the facts and circumstances of this case and provides a reasonable 

sentence.”)).

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sentencing error and does not prove either actual innocence of his crime[19] or the 

vacatur of a prior conviction, the prisoner cannot satisfy the demanding standard 

that a sentencing error resulted in a complete miscarriage of justice.” Id. at *4-5 

(some quotations omitted). Lacey has not shown a “complete miscarriage of justice” 

in any of the claimed guidelines sentencing errors. Thus, the undersigned

RECOMMENDS that Lacey’s “Motion Requesting an Urgent Evidentiary 

Hearing/Motion to Amend Pending 18 USC § 2255” (Doc. 84) be DENIED.

For these same reasons, the undersigned also RECOMMENDS that the 

Court also DENY Lacey’s claim in his § 2255 motion that the Court’s imposition of a 

12-level enhancement under U.S.S.G. § 2B1.1(b)(1)(G) was error because “the 

factual resume and presentence report are to vagued [sic] to support nearly a two 

hundred thousand dollar upward departure[,]” because he only “pled guilty to fifty 

thousand dollars” (Doc. 71 at 7).

F. Motion to Appeal Criminal Forfeiture (Doc. 85)

Lacey has also filed a “Motion to Appeal Criminal Forfeiture under FRCP 

32.2” (Doc. 85), seeking return of the $32,000 seized from him by law enforcement 

officials during his September 9, 2010 drug arrest (see Doc. 17 at 2 (“Lacey was also

 19 Lacey has only argued legal innocence of his crime because he believes evidence was due 

to be suppressed. Legal innocence is not the same as actual innocence. See McKay v. 

United States, 657 F.3d 1190, 1199 (11th Cir. 2011) (“McKay makes the purely legal

argument that he is actually innocent of his career offender sentence because his prior 

conviction for carrying a concealed weapon should not have been classified as a ‘crime of 

violence’ under the Guidelines. McKay does not even suggest, because he cannot, that he 

did not actually commit the crime of carrying a concealed weapon. In other words, he makes 

no claim of factual innocence of the predicate offense. No circuit court has held that the

actual innocence exception is available for claims of purely legal innocence, like McKay's, 

and we refuse to do so as well.”).

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arrested on September 9, 2011 for possession of narcotics. He also had $32,000 cash 

in his possession at the time of arrest.”))20 and the $18,000 he was ordered to pay as 

restitution (see Doc. 43).

No forfeiture proceedings under Federal Rule of Criminal Procedure 32.2 

were ever instituted in this action. The $18,000 in restitution was imposed as part 

of the criminal judgment against Lacey. (See Doc. 43). Because Lacey agreed to the 

dismissal of his direct appeal with prejudice (see Doc. 76), he has forfeited his 

opportunity to appeal that portion of his sentence.21

Regarding the $32,000 seized during the traffic stop, the undersigned treats 

this as a motion to return property under Federal Rule of Criminal Procedure 41(g).

A motion to return seized property under Fed. R. Crim. P. 41(g), is a 

motion in equity, in which courts will determine all the equitable 

considerations in order to make a fair and just decision. When an 

owner invokes Rule 41(g) after the close of all criminal proceedings, the 

court treats the motion for return of property as a civil action in equity. 

See United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir.

2001); see also United States v. Martinez, 241 F.3d 1329, 1330–31 (11th 

Cir. 2001) (holding that a district court has equitable jurisdiction over 

a Rule 41(e) motion brought after all criminal proceedings against a 

defendant have ended.)

 20 In an apparent error, the last sentence of the Factual Resume states: “August 30, 2011, 

approximately $32,000.00 of the $50,000.00 was seized from Lacey.” Lacey’s PSI, however, 

also puts the date the $32,000 was seized as being September 9, 2011. (See Doc. 23 at 5, ¶ 

15; 16, ¶ 58).

21 This would also be true if any of the requested funds had been subject to criminal 

forfeiture. See United States v. Prat, 584 F. App'x 921, 924 (11th Cir. 2014) (per curiam) 

(unpublished) (“ ‘[C]riminal forfeiture is part of a defendant's sentence.’ United States v. 

Gilbert, 244 F.3d 888, 924 (11th Cir.2001). With respect to the defendant (as opposed to 

third-party claimants), the district court's preliminary forfeiture orders become final at his 

sentencing. See Fed. R. Crim. P. 32.2(b)(4)(A); United States v. Petrie, 302 F.3d 1280, 1284 

(11th Cir. 2002) (“At sentencing, the order of forfeiture becomes final as to the defendant 

and is made a part of the sentence and included in the judgment.” (quotation marks 

omitted)). [] A defendant's time to file an appeal from a criminal forfeiture order begins to 

run when the judgment is entered. Fed. R. Crim. P. 32.2(b)(4)(C).”).

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Rule 41(g) provides:

“A person aggrieved by an unlawful search and seizure of 

property or by the deprivation of property may move for the 

property's return. The motion must be filed in the district 

where the property was seized. The court must receive 

evidence on any factual issue necessary to decide the motion. 

If it grants the motion, the court must return the property to 

the movant, but may impose reasonable conditions to protect 

access to the property and its use in later proceedings.”

Fed. R. Crim. P. 41(g) (2005).

In order for an owner of property to invoke Rule 41(g), he must show 

that he had a possessory interest in the property seized by the 

government...

Furthermore, in order for a district court to grant a Rule 41(g) motion, 

the owner of the property must have clean hands. See Gaudiosi v. 

Mellon, 269 F.2d 873, 881–82 (3d Cir. 1959) (stating, no principle is 

better settled than the maxim that he who comes into equity must 

come with “clean hands” and keep them clean throughout the course of 

the litigation, and that if he violates this rule, he must be denied all 

relief whatever may have been the merits of his claim.)

United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005).

Here, Lacey pled guilty to Count Two of the indictment, which expressly 

charged him filing a false GCCF claim in the amount of $50,000. (Doc. 1 at 3). 

Lacey also admitted to this $50,000 false claim in his Factual Resume and further

admitted that “the money that was in his possession at the time of his arrest on 

September 9, 2010 was directly from the sale of his vehicle that he purchased with 

the Fraudulent BP money.” (Doc. 17 at 2-3, 5). Because Lacey admitted that the 

$32,000 was obtained from his criminal activity, he has not demonstrated “clean 

hands” entitling him to relief under Rule 41(g). Cf. Howell, 425 F.3d at 974 (“The 

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doctrine of ‘unclean hands’ is an equitable test that is used by courts in deciding 

equitable fate. The defendant in the instant case has come into court with extremely 

‘unclean hands.’ One engaged in this type of criminal conduct is hardly entitled to 

equitable relief.”); United States v. Zambrano, 353 F. App'x 227, 229 (11th Cir. 

2009) (per curiam) (unpublished) (“Here,...Zambrano pled guilty to a drug offense in 

which he used the disputed currency and, as part of his guilty plea, he expressly 

agreed to forfeit the funds...Given Zambrano's conduct, there are precious few 

equities we can discern that cut in Zambrano's favor, and indeed, so many equities 

that cut so heavily against him. As a result, we see no basis on which the district 

court could have relied to exercise its discretion to review Zambrano's Rule 41(g) 

motion under its equitable authority.”).

Accordingly, the undersigned RECOMMENDS that Lacey’s “Motion to 

Appeal Criminal Forfeiture under FRCP 32.2” (Doc. 85) be DENIED.

G. Certificate of Appealability

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

undersigned RECOMMENDS that a Certificate of Appealability be DENIED for 

Lacey’s § 2255 motion. 18 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 only issue where “the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2).

Where, as here, the district court “has rejected the constitutional claims on 

the merits, the showing required to satisfy § 2253(c) is straightforward: The 

petitioner must demonstrate 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 (2000). See also Miller-El, 537 U.S. at 336 (“Under the controlling 

standard, a petitioner must show 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.” (citations omitted and punctuation modified)).). “A prisoner 

seeking a COA must prove something more than the absence of frivolity or the 

existence of mere good faith on his or her part.” Miller-El, 537 U.S. at 338 

(quotations omitted). The undersigned finds that reasonable jurists could not 

debate whether Lacey’s § 2255 motion to vacate should be resolved in a different 

manner or that any of the remaining issues presented is adequate to deserve 

encouragement to proceed further. Accordingly, Lacey is not entitled to a 

Certificate of Appealability as to these claims.

Rule 11(a) further provides: “Before entering the final order, the court may 

direct the parties to submit arguments on whether a certificate should issue.” If 

there is an objection to this recommendation by petitioner, he may bring this 

argument to the attention of the district judge in the objections permitted to this 

report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WSCase 1:12-cr-00046-KD-N Document 88 Filed 02/11/15 Page 58 of 61
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C, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation 

adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011)22; Griffin v. DeRosa, No. 

3:10cv342/RV/MD, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for 

same procedure), report & recommendation adopted sub nom. Griffin v. 

Butterworth, 2010 W: 3943699 (N.D. Oct. 5, 2010).

H. Appeal In Forma Pauperis

“An appeal may not be taken in forma pauperis if the trial court certifies in 

writing that it is not taken in good faith.” 28 U.S.C.A. § 1915(a)(3). A district 

court’s finding “that an appeal would not be in good faith because no certificate of 

appealability had been issued . . . is not enough to explain why the appeal on the 

merits would not be in good faith, because the standard governing the issuance of a 

certificate of appealability is not the same as the standard for determining whether 

an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is 

in good faith, a court need only find that a reasonable person could suppose that the 

appeal has some merit.” Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). 

See also Weaver v. Patterson, Civ. A. No. 11-00152-WS-N, 2012 WL 2568218, at *7 

(S.D. Ala. June 19, 2012) (Nelson, M.J.), report and recommendation adopted, Civ. 

A. No. 11-00152-WS-N, 2012 WL 2568093 (S.D. Ala. July 3, 2012) (Steele, C.J.) (“An 

appeal may not be taken in forma pauperis if the trial court certifies in writing that 

the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); see Fed. R. App. P. 

 22 It should be noted that in that proceeding, the Eleventh Circuit (Judge Hull) also denied 

the petitioner’s motion for certificate of appealability on October 11, 2011. (See Doc. 14 in 

CA-11-0165-WS-C.)

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24(a)(3)(A); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that 

‘good faith’ is ‘an objective concept’ and that ‘not taken in good faith’ is ‘a synonym 

for frivolous’); DeSantis v. United Techs, Corp., 15 F. Supp. 2d 1285, 1288–89 (M.D. 

Fla. 1998) (stating that good faith ‘must be judged by an objective, not a subjective, 

standard’ and that an appellant ‘demonstrates good faith when he seeks appellate 

review of any issue that is not frivolous’). An appeal filed in forma pauperis is 

frivolous if ‘it appears that the Plaintiff has little to no chance of success,’ meaning 

that the ‘factual allegations are clearly baseless or that the legal theories are 

indisputably meritless.’ Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).”). But 

see, e.g., United States v. McCray, No. 4:07CR20-RH, 2012 WL 1155471, at *2 (N.D. 

Fla. Apr. 5, 2012) (“Because the defendant has not obtained—and is not entitled 

to—a certificate of appealability, any appeal by the defendant will not be taken in 

good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any 

appeal will not be taken in good faith and that the defendant is not otherwise 

entitled to proceed in forma pauperis on appeal.”).

In light of the above-stated reasoning, the undersigned RECOMMENDS the 

Court certify that any appeal by Lacey in this action would be without merit and 

therefore not taken in good faith and, accordingly, find that Lacey is not entitled to 

appeal in forma pauperis.

IV. Conclusion

In accordance with the above-stated reasoning, the undersigned

RECOMMENDS that Lacey’s two motions to compel discovery (Docs. 83, 86), his 

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“Motion Requesting an Urgent Evidentiary Hearing/Motion to Amend Pending 18 

USC § 2255” (Doc. 84), and his “Motion to Appeal Criminal Forfeiture under FRCP 

32.2” (Doc. 85) all be DENIED. The undersigned further RECOMMENDS that 

Lacey’s Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 

(Docs. 69, 71), as supplemented (see Docs. 81, 82, 87), be DENIED, that this action 

be DISMISSED with prejudice, that judgment be entered in favor of the 

Respondent, and that Lacey be found not entitled either to a Certificate of 

Appealability or to appeal in forma pauperis.

V. 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. 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 the 11th day of February 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:12-cr-00046-KD-N Document 88 Filed 02/11/15 Page 61 of 61