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

presided over the guilty plea proceedings in this action and

imposed the challenged sentence. On December 21, 2009, Judge

Granade referred the matter to the undersigned Magistrate Judge

for entry of a Report and Recommendation. The undersigned has

reviewed the Petitioner’s motion and related documents, the

transcripts of the guilty plea hearing and sentencing hearing,

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

fully familiarized himself with the proceedings before Judge

Granade. Based upon that review, the undersigned makes the

following report and recommendation.

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTRON MONYA VALRIE, :

Petitioner, :

CRIMINAL NO. 08-00214-CG-M

vs. :

 CIVIL ACTION NO.09-00824-CG

UNITED STATES OF AMERICA, :

Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate,

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 31),

and Respondent’s Opposition thereto. (Doc. 35). This action was

referred to the undersigned Magistrate Judge for report and

recommendation pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of

the Rules Governing Section 2255 Cases.1 It is now ready for

consideration. Because the record is adequate to dispose of this

matter, no evidentiary hearing is required. It is recommended

that Petitioner’s Motion to Vacate, Set Aside, or Correct

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 1 of 23
2

Sentence under 28 U.S.C. § 2255 (Doc. 31) be denied, that this

action be dismissed, and that judgment be entered in favor of

Respondent, the United States of America, and against Petitioner

Antron Monya Valrie.

I. BACKGROUND

On June 26, 2008, Petitioner was indicted for violating

Title 21 U.S.C. § 846, conspiracy to possess with intent to

distribute crack cocaine (Count One), and 21 U.S.C. § 841,

possession with intent to distribute crack cocaine (Counts Two,

Three, and Four). (Doc. 3). On or about July 22, 2008,

Petitioner retained Pete J. Vallas as his attorney. (Doc. 5 at

1). On August 6, 2008, the Court granted Vallas’s motion to

withdraw and appointed attorney Daniel L. McCleave to represent

Petitioner. (Doc. 13). 

Pursuant to a plea agreement with the Government, Petitioner

pled guilty on September 16, 2008, to Count One of the indictment

charging a violation of 21 U.S.C. § 846, conspiracy to possess

with intent to distribute crack cocaine. (Doc. 19). The

Government agreed not to bring any additional charges related to

the facts underlying the indictment, to move to dismiss Counts

Two through Four, and to recommend that Petitioner be sentenced

at the low end of the advisory guideline range as determined by

the Court. (Id. at 5). At Petitioner’s sentencing hearing

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 2 of 23
3

conducted on December 16, 2008, Judge Granade sentenced

Petitioner to eighty-seven months in prison, four years of

supervised release following his release from prison, and an

assessment of one hundred dollars. (Doc. 27 at 2-5; Doc. 34 at

7-8). The Court dismissed Counts Two, Three, and Four of the

indictment. (Doc. 34 at 9). 

Petitioner did not file a notice of appeal. On December 21,

2009, Petitioner filed a Motion to Vacate, Set Aside, or Correct

Sentence under 28 U.S.C. § 2255. (Doc. 31). Though not well

pled, Petitioner raises the following claims: (1) Petitioner’s

guilty plea on the conspiracy charge (Count One) was not made

knowingly or voluntarily; and (2) Petitioner’s counsel was

ineffective (a) at the guilty plea stage for advising Petitioner

to plead guilty to conspiracy; and (b) at sentencing for failing

to object to the Court’s use of 60.7 grams of crack cocaine to

determine the base offense level under the Guidelines and for

failing to request a two level retroactive sentence reduction

based on Amendment 706. (Doc. 31 at 4, 9-17). On February 5,

2010, Respondent filed a response in opposition to Petitioner’s

Motion to Vacate arguing that Petitioner’s claims are without

merit. (Doc. 35). The Court now considers each of Petitioner’s

claims in turn.

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 3 of 23
4

II. DISCUSSION

A. Claim One: Involuntary and Unknowing Guilty Plea.

Petitioner argues in his Motion to Vacate that his guilty

plea on the charge of conspiracy to possess with intent to

distribute crack cocaine (Count One) was not made knowingly and

voluntarily. Specifically, Petitioner states that his attorney

“coerced” him into entering a plea of guilty on the conspiracy

charge even though “there was no conspiracy or co-conspirators,

on the case in chief.” (Doc. 31 at 4). Petitioner claims that

he “had no understanding of the process in which [he] was dealing

with,” causing him to plead guilty to an “illegal conviction.” 

(Id.).

The Court begins its analysis of Petitioner’s claim by

underscoring that the circumstances under which a guilty plea may

be attacked on collateral review are severely limited. It is

well settled that “the voluntariness and intelligence of a guilty

plea can be attacked on collateral review only if first

challenged on direct review.” Bousley v. U.S., 523 U.S. 614, 621

(1998). “Habeas review is an extraordinary remedy and will not

be allowed to do service for an appeal.” Id. (citations and

internal quotation marks omitted). 

In this action, Petitioner did not file a direct appeal. By

failing to do so, Petitioner procedurally defaulted the claim

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 4 of 23
2 The courts have recognized an exception to the procedural

default rule for claims that could not have been reviewed on

direct appeal without further factual development. See Bousley,

523 U.S. at 621-22. However, as shown herein, Petitioner’s claim

related to his understanding and the voluntariness of his guilty

plea could have been fully and completely addressed on direct

review based on the record created at the plea colloquy. 

5

that he now advances.2 “Where a defendant has procedurally

defaulted a claim by failing to raise it on direct review, the

claim may be raised in habeas only if the defendant can first

demonstrate either ‘cause’ and actual ‘prejudice,’ . . . or that

he is ‘actually innocent.’” Id. at 622 (citations omitted).

Petitioner has alleged neither cause nor prejudice for his

procedural default of habeas Claim One, nor has he claimed actual

innocence. Therefore, his procedurally defaulted claim is due to

be denied.

However, even if Claim One were not procedurally defaulted,

it is due to be denied on the merits. A plea of guilty is

constitutionally valid if “voluntary” and “intelligent.” Id. at

618. A plea is voluntary in a constitutional sense if it was

“entered by one fully aware of the direct consequences of the

plea,” and not induced by threats, misrepresentation, or

“promises that are by their nature improper as having no proper

relationship to the prosecutor’s business.” Id. at 619

(citations and internal quotation marks omitted). A plea is

intelligent in a constitutional sense if a criminal defendant

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 5 of 23
6

received “real notice of the true nature of the charge against

him.” Id. at 618. If the defendant “was advised by competent

counsel, was in control of his mental faculties, and was made

aware of the nature of the charge against him,” his plea was

entered intelligently even if at the time of the plea, he “did

not correctly assess every relevant factor entering into his

decision.” Id. at 619 (citations and internal quotation marks

omitted). 

As discussed above, the record shows that Petitioner pled

guilty to Count One of the indictment, conspiracy to possess with

intent to distribute crack cocaine, on September 16, 2008,

pursuant to a plea agreement with the Government in which the

Government agreed not to pursue additional related charges, to

move to dismiss Counts Two through Four (possession with intent

to distribute crack cocaine), and to recommend that Petitioner be

sentenced at the low end of the advisory guideline range. (Doc.

19). On September 16, 2008, Petitioner appeared before the Court

for a hearing on his guilty plea. Prior to accepting his plea,

Judge Granade conducted a full and sufficient plea colloquy with

Petitioner as required by Federal Rule of Criminal Procedure 11. 

During the plea colloquy, Petitioner was placed under oath and warned of

the possibility of a perjury charge if he answered any of the Court’s

questions falsely during the proceedings. (Doc. 33 at 2-3). Petitioner stated

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 6 of 23
7

that he was not “under the influence of any drug, medication, or

alcoholic beverage.” (Id. at 3). Of particular significance to

Petitioner’s claim is the following exchange between Judge

Granade and Petitioner:

THE COURT: Have you received a copy of the

indictment, the written charges in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT: And have you fully discussed those

charges and the case in general with Mr. McCleave?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you understand the charges pending

against you?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are you fully satisfied with the

counsel, representation, and advice given to you

in your case by Mr. McCleave?

THE DEFENDANT: Yes, ma’am.

THE COURT: All right. Now, I’ve been provided

with a copy of a plea agreement and a factual

resume and I want you to take a look at those on

the record and tell me whether that is your plea

agreement and factual resume and whether you

signed those documents.

THE DEFENDANT: Yes, ma’am.

THE COURT: All right. Did you have the

opportunity to read and discuss the plea agreement

with Mr. McCleave before you signed it?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you understand the terms of your

plea agreement?

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 7 of 23
8

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you have any agreements with the

United States Government concerning your case that

are not written down in this plea agreement?

MR. MCCLEAVE: Anything other than what’s already

written down?

THE COURT: Has anybody promised you anything other

than what’s written down in this plea agreement?

THE DEFENDANT: Oh, no, ma’am.

THE COURT: And has anybody made any other

assurances to you of any kind in an effort to

induce you to plead guilty in this case?

THE DEFENDANT: No, ma’am.

. . . 

THE COURT: All right. Has anyone attempted in any

way to force you to plead guilty?

THE DEFENDANT: No, ma’am.

THE COURT: Are you pleading guilty of your own

free will because you are guilty?

THE DEFENDANT: Yes, ma’am.

. . . 

THE COURT: Now, you’re pleading guilty to a charge

of violating Title 21, United States Code, Section

846, conspiracy to possess with intent to

distribute crack cocaine. And in order to convict

you of that offense the United States would have

to prove that two or more persons came to a mutual

understanding to violate the law, and in this case

it would be to distribute or to possess with

intent to distribute crack cocaine, and that you,

knowing the unlawful purpose of this conspiracy,

joined in it. Do you understand what the

government would have to prove in order to convict

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 8 of 23
3 During the plea colloquy, Judge Granade also informed Petitioner

of the maximum penalty that he faced if the Court accepted his

guilty plea -- a minimum mandatory ten years to life in prison, a

fine not to exceed $4,000,000, a term of supervised release of

eight years, and a mandatory special assessment of $100. (Doc.

33 at 6). Petitioner stated that he understood the possible

sentencing consequences. (Id. at 7). 

9

you? 

THE DEFENDANT: Yes, ma’am. 

THE COURT: All right. Now, I asked you earlier if

you had signed the factual resume attached to the

plea agreement, and you said that you had. And I

want to make sure that you understand that by

signing that factual resume you are agreeing that

the government could prove the facts set forth in

that document in order to support your guilty

plea. Do you understand and agree to that? 

THE DEFENDANT: Yes, ma’am.

 THE COURT: All right. Well, I have read that. 

And so I will now ask you how do you plead to the

charge, guilty or not guilty? 

THE DEFENDANT: Guilty, Your Honor. 

THE COURT: All right. It is the finding of the

Court in the case of United States versus Antron

Monya Valrie that the defendant is fully competent

and capable of entering an informed plea, that he

is aware of the nature of the charges and the

consequences of the plea, and that the plea of

guilty is a knowing and voluntary plea supported

by an independent basis in fact containing each of

the essential elements of the offense. The plea

is therefore accepted and the defendant is now

adjudged guilty of that offense. . . .

(Doc. 33 at 3-10).3

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 9 of 23
10

“There is a strong presumption that the statements made

during the [plea] colloquy are true.” United States v. Medlock,

12 F. 3d 185, 187 (11th Cir. 1994). “[W]hen a defendant makes

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

to show his statements were false.” United States v. Rogers, 848

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

Petitioner claims in his Motion to Vacate that his guilty

plea was not knowing or voluntary because he did not understand

that proof of a conspiracy required evidence of co-conspirators,

which he claims was lacking. (Doc. 31 at 4). To the contrary,

as set forth above, the Court specifically informed Petitioner at

the guilty plea hearing that, in order to be convicted of the

conspiracy charge, the Government “would have to prove that two

or more persons came to a mutual understanding to violate the

law, and in this case it would be to distribute or to possess

with intent to distribute crack cocaine, and that you, knowing

the unlawful purpose of this conspiracy, joined in it.” (Doc. 33

at 9) (emphasis added). Petitioner acknowledged in response to

questions by Judge Granade that he understood what was required

to prove the conspiracy charge. 

Moreover, as discussed above, the factual resume submitted

by the Government and Petitioner as part of the plea agreement

included an account of Petitioner and “an unknown black male”

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 10 of 23
4 The factual resume included the following statements: “To

provide the CI [confidential informant] with the crack cocaine,

Antron Valrie had an unknown black male retrieve a plastic bag

from the rear of the house on Front Street.” (Doc. 19 at 14). 

“The defendant admits that he conspired with others to distribute

in excess of 5 grams of crack cocaine.” (Id. at 16).

11

selling crack cocaine to a confidential informant on February 12,

2008.4

 (Doc. 19 at 14, 16). Petitioner affirmed at the guilty

plea hearing that he had read and signed the factual resume and

agreed with it; he understood the charges against him and what

the Government would have to prove to convict him; and he

understood the terms of his plea agreement. (Doc. 33 at 3-10). 

Petitioner further assured the Court that that no one was forcing

him to plead guilty and that no one had induced him to sign the

plea agreement by making any assurances other than those

contained in the plea agreement. (Id. at 4-5). To the contrary,

he wanted to plead guilty because he was guilty. (Id. at 5). 

Therefore, Petitioner’s claim now that his plea was involuntary

and unknowing because he was unaware of the proof required for a

conspiracy and because there was no evidence of a co-conspirator

in his case is unavailing. 

A defendant’s representations regarding the voluntary nature

of his plea “constitute a formidable barrier in any subsequent

collateral proceedings. Solemn declarations in open court carry a

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 11 of 23
12

strong presumption of verity.” Blackledge v. Allison, 431 U.S.

63, 74 (1977). “Petitioner cannot circumvent the terms of his

plea agreement merely because he does not like the outcome at

sentencing.” Bradshaw v. U.S., 2005 WL 1669036 *4 (M.D. Fla.

2005) (unpublished) (citing U.S. v. Bushert, 997 F.2d 1343, 1350

(11th Cir. 1993)).

The Court finds that Petitioner was fully informed of the

nature of the charges against him and the consequences of a

guilty plea to the conspiracy charge and that he voluntarily and

knowingly pled guilty to that charge. Accordingly, Claim One of

Petitioner’s habeas petition is due to be denied for this reason

as well.

B. Claim Two: Ineffective Assistance of Counsel.

Next, in his Motion to Vacate, Petitioner claims that he is

entitled to habeas relief based on ineffective assistance of

counsel at the guilty plea and sentencing stages of his

proceedings. Specifically, Petitioner claims that his counsel

was ineffective at the guilty plea stage for advising him to

plead guilty to the conspiracy charge instead of the possession

charges. Petitioner further claims that counsel was ineffective

at sentencing for failing to object to the amount of crack

cocaine used to determine the base offense level under the

Guidelines and for failing to request a two level retroactive

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 12 of 23
5 “Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions

are not considered binding precedent, but may be cited as

persuasive authority.” Lanier Constr., Inc. v. Carbone Props. of

Mobile, LLC, 253 Fed. Appx. 861, 865 n.5 (11th Cir. 2007)

(unpublished).

13

sentence reduction based on Amendment 706. (Doc. 31 at 4, 9-17). 

Each of these ineffective assistance of counsel claims fails. 

1. Ineffective Assistance of Counsel at Guilty Plea.

“A habeas petitioner claiming ineffective assistance of

counsel must succeed on both prongs of the Strickland test.” 

Scott v. U.S., 325 Fed. Appx. 822, 824 (11th Cir. 2009)

(unpublished)5

 (citing Butcher v. United States, 368 F.3d 1290,

1293 (11th Cir. 2004)).

The Strickland test applies to challenges of

guilty pleas, as well as to convictions by jury. 

Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366,

370, 88 L. Ed. 2d 203 (1985). In this context,

the first prong of Strickland requires the

defendant to show his plea was not voluntary

because he received advice from counsel that was

not within the range of competence demanded of

attorneys in criminal cases. See id. at 369-70. 

The second prong “focuses on whether counsel’s

constitutionally ineffective performance affected

the outcome of the plea process,” meaning the

defendant must show “a reasonable probability

that, but for counsel’s errors,” he would have

entered a different plea. Id. at 370 (stating the

test in the context of an accepted guilty plea);

see also Diaz v. United States, 930 F.2d 832, 835

(11th Cir. 1991) (applying the test to a rejected

plea agreement).

Scott, 325 Fed. Appx. at 824. 

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 13 of 23
14

For the reasons discussed above in relation to habeas Claim

One, the Court rejects Petitioner’s claims that his counsel was

ineffective at the guilty plea stage for failing to inform him

that proof of a conspiracy requires the existence of a coconspirator and for advising him to plead guilty to the

conspiracy charge (as opposed to the three possession with intent

to distribute charges) where, Petitioner claims, there was no

evidence of a co-conspirator. First, as discussed above, the

Court, if not Petitioner’s counsel, fully informed Petitioner of

the elements of the conspiracy charge prior to accepting his

guilty plea. Second, there was evidence of a co-conspirator, “an

unknown black male,” who along with Petitioner sold crack cocaine

to a confidential informant on February 12, 2008, all of which

Petitioner acknowledged before pleading guilty. (Doc. 19 at 14,

16; Doc. 33 at 9). Moreover, in exchange for Petitioner’s guilty

plea on the conspiracy charge, the Government promised not to

pursue additional charges, to move to dismiss the three remaining

charges of possession with intent to distribute, and to recommend

that Petitioner be sentenced at the low end of the advisory

guideline range, all of which was accomplished. (Doc. 34 at 9,

7). Petitioner’s argument that he would have received a more

favorable outcome if counsel had advised him to plead guilty to

the three possession with intent to distribute charges, instead

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 14 of 23
15

of the conspiracy charge, presupposes that the Government would

have agreed to dismiss the conspiracy charge in exchange for

guilty pleas on the other three counts and that the Court would

have given Petitioner a more favorable sentence, all of which is

pure conjecture. In any event, Petitioner has failed to show

that counsel was deficient for advising him to plead guilty to

conspiracy and that, but for counsel’s errors, he would have

entered a different plea. See Scott, 325 Fed. Appx. at 824. 

Therefore, Petitioner’s ineffective assistance of counsel claim

based on counsel’s advice at the guilty plea stage is due to be

denied. 

2. Ineffective Assistance of Counsel at Sentencing.

Next, with respect to Petitioner’s ineffective assistance of

counsel claims directed to his sentence, Petitioner claims that

his counsel was ineffective for failing to object to the

Government’s use of 60.7 grams of crack cocaine, as opposed to 15

grams, to calculate the base offense level under the Guidelines

and for failing to request a two level retroactive sentence

reduction based on Amendment 706. (Doc. 31 at 4, 9-17). The

Court finds that these claims are waived.

As set forth above in relation to habeas Claim One, this

Court has found that Petitioner knowingly and voluntarily entered

into a plea agreement with the Government on September 16, 2008. 

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 15 of 23
16

(Doc. 19). That plea agreement contained a sentence appeal

waiver in which Petitioner agreed to relinquish his right to

directly appeal his sentence or to pursue a post-conviction

proceeding or collateral attack of his sentence (including but

not limited to a motion brought under 28 U.S.C. § 2255), except

in limited circumstances. (Id. at 10-11). Specifically, in the

section of the Agreement entitled “Limited Waiver of Right to

Appeal Sentence,” Petitioner agreed to the following: 

19. The defendant acknowledges that he/she is

aware that 18 U.S.C. § 3742 affords a defendant

the right to appeal the sentence imposed. In

exchange for the recommendations made by the

United States in this Plea Agreement, the

defendant knowingly and voluntarily waives the

right to appeal any sentence imposed in this case.

20. With the limited exceptions noted below,

the defendant also waives his/her right to

challenge any sentence so imposed, or the manner

in which it was determined, in any collateral

attack, including but not limited to, a motion

brought under 28 U.S.C. § 2255. “Any sentence so

imposed” includes any determination or sentence

imposed in a supervised release revocation

proceeding.

21. The defendant reserves the right to

contest in an appeal or post-conviction proceeding

any of the following:

a. Any punishment imposed in excess of

the statutory maximum; 

b. Any punishment that constitutes an

upward departure from the guideline range; or 

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 16 of 23
17

c. A claim of ineffective assistance

of counsel.

22. In addition, the defendant reserves the

right to petition the Court for resentencing

pursuant to 18 U.S.C. § 3582 in the event of a

future retroactive amendment to the Sentencing

Guidelines which would affect the defendant’s

sentence.

(Id. at 10).

As with plea agreements, “[i]t is well-settled that

sentence-appeal waivers are valid if made knowingly and

voluntarily.” Williams v. U.S., 396 F.3d 1340, 1341 (11th Cir.

2005) (citing United States v. Bushert, 997 F.2d 1343, 1350-51

(11th Cir. 1993)). “[F]or a sentence-appeal waiver to be

enforceable, ‘[t]he government must show that either (1) the

district court specifically questioned the defendant concerning

the sentence appeal waiver during the [plea] colloquy, or (2) it

is manifestly clear from the record that the defendant otherwise

understood the full significance of the waiver.’” Id. (quoting

Bushert, 997 F.2d at 1351).

During the plea colloquy, the following exchange took place

between Judge Granade and Petitioner regarding the sentence

appeal waiver:

THE COURT: Do you also understand that under some

circumstances you or the government may have the

right to appeal any sentence that I impose;

however, your plea agreement contains a limited

waiver of your right to appeal the sentence itself

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 17 of 23
18

and in your case you have reserved the right to

contest on appeal or in a post-conviction

proceeding only if punishment is imposed in excess

of the statutory maximum, if punishment is imposed

that constitutes an upward departure from the

guideline range, or if you have a claim of

ineffective assistance of counsel? Do you

understand that you have waived your right to

appeal or to file a post-conviction proceeding in

all but those three circumstances outlined in your

plea agreement? 

THE DEFENDANT: Yes, ma’am. 

 (Doc. 33 at 7-8).

Based on the foregoing, the Court finds that Petitioner

entered into his sentence appeal waiver knowingly and

voluntarily. Thus, he has waived his right to challenge his

sentence directly or collaterally except in the three limited

circumstances enumerated in the waiver. Although a claim of

ineffective assistance of counsel is one of the exceptions listed

in the sentence appeal waiver, that exception does not apply

where Petitioner has merely re-cast a waived challenge to his

sentence as an ineffective assistance of counsel claim. In

Williams, 396 F.3d at 1342, the Eleventh Circuit held that “a

valid sentence-appeal waiver, entered into voluntarily and

knowingly, pursuant to a plea agreement, precludes the defendant

from attempting to attack, in a collateral proceeding, the

sentence through a claim of ineffective assistance of counsel

during sentencing.” As noted by the Williams court, a decision

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 18 of 23
6 With respect to Petitioner’s claim that his counsel was

ineffective for failing to request a two level retroactive

sentence reduction related to Amendment 706, even if that claim

were not waived, it is without merit. Petitioner was sentenced

on December 16, 2008. (Doc. 27). Amendment 706 went into effect

on November 1, 2007, readjusting the minimum amount of crack

cocaine required to trigger the base offense levels set forth in

U.S.S.G. § 2D1.1, and effectively reducing by two levels all base

offense levels for crack cocaine offenses. See United States v.

Greene, 2010 WL 1192230, *1 (N.D. Fla. 2010). Because Petitioner

was sentenced after the effective date of Amendment 706, the

reduction has already been applied to his sentence.

19

otherwise would render the waiver meaningless. Id., 396 F.3d at

1342. 

The Court has analyzed Petitioner’s ineffective assistance

of counsel claims related to his sentence, i.e., that counsel

failed to object to the amount of crack cocaine used to calculate

the base offense level and failed to request a two level

retroactive sentence reduction based on Amendment 706,6 and finds

that Petitioner has simply disguised his otherwise waived

sentencing claims as ineffective assistance of counsel claims,

which is clearly forbidden by Williams. Thus, Petitioner’s

habeas claims based on ineffective assistance of counsel at

sentencing are due to be denied. 

CERTIFICATE OF APPEALABILITY

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

Proceedings, the undersigned recommends that a certificate of

appealability in this case be denied. 28 U.S.C. foll. § 2255,

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

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 19 of 23
20

of appealability when it enters a final order adverse to the

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

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

habeas corpus petition only where a circuit justice or judge

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

A certificate of appealability may issue only where “the

applicant has made a substantial showing of the denial

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

habeas petition is being denied, in part, on procedural grounds

without reaching the merits of an underlying constitutional

claim, “a COA should issue [only] when the prisoner shows . . .

that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). Where a habeas petition

is being denied on the merits of an underlying constitutional

claim, a certificate of appealability should issue only when the

petitioner demonstrates “that reasonable jurists would find the

district court’s assessment of the constitutional claims

debatable or wrong.” Id. (“To obtain a COA under § 2253(c), a

habeas prisoner must make a substantial showing of the denial of

a constitutional right, a demonstration that, under Barefoot [v.

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 20 of 23
21

Estelle, 463 U.S. 880, 893 (1983)], includes showing that

reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve

encouragement to proceed further.”) (internal quotation marks

omitted); accord Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

None of Petitioner’s claims are such as would warrant the

issuance of a Certificate of Appealability. The recommendation

that these claims be denied is based on the straightforward

application of clear Circuit precedent, and no reasonable jurist

could differ on the appropriate disposition of the claims on the

record presented. It is thus recommended that the Court deny any

request for a Certificate of Appealability.

CONCLUSION

For the foregoing reasons, it is recommended that

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

Sentence by a Person in Federal Custody (Doc. 31) be denied, that

this action be dismissed, and that judgment be entered in favor

of Respondent, the United States of America, and against

Petitioner, Antron Monya Valrie. In addition, the undersigned

Magistrate Judge is of the opinion that Petitioner is not

entitled to issuance of a Certificate of Appealability. It is so

recommended.

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 21 of 23
15 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed. R. Civ. P.

72(b)(2).

22

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The

procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4

(June 1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a ‘Statement of Objection to Magistrate Judge’s

Recommendation’ within ten days11 after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection. 

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 22 of 23
23

A magistrate judge's recommendation cannot be appealed to a

Court of Appeals; only the district judge's order or judgment can

be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). 

Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the

Magistrate Judge finds that the tapes and original records in

this case are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 9th day of June, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cr-00214-CG-M Document 36 Filed 06/09/10 Page 23 of 23