IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIAM SHANE COWART )

BOP Reg. # 10438-003, )

 Petitioner, ) 

) CIVIL ACTION NO. 15-00402-KD

v. )

 )CRIMINAL ACTION NO. 14-00037-KD-N-1

UNITED STATES OF AMERICA, )

 Respondent. )

REPORT AND RECOMMENDATIONS

William Shane Cowart, a federal prisoner proceeding pro se, has filed a 

motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Doc. 1201),

challenging the judgment entered against him in the above-styled criminal action.2 

Under S.D. Ala. GenLR 72(b), this matter has been referred to the undersigned 

Magistrate Judge, who under S.D. Ala. GenLR 72(a)(2)(R) is authorized to require 

responses, issue orders to show cause and any other orders necessary to develop a 

complete record, and to prepare a report and recommendation to the District Judge 

as to appropriate disposition of Cowart’s § 2255 motion, in accordance with 28 

 1 All “Doc.” citations herein refer to the docket of the above-styled criminal action.

2 Because Cowart’s initial § 2255 motion (Doc. 118) was not on this Court’s form, he was 

ordered to file a new motion on the Court’s current form. See (Doc. 119); See Rule 2(c) of the 

Rules Governing Section 2255 Cases for the United States District Courts (a § 2255 motion 

“must substantially follow either the form appended to these rules or a form prescribed by a 

local district-court rule”); S.D. Ala. CivLR 9(a) (“All persons ... moving under 28 U.S.C. § 

2255 to challenge a sentence imposed by this Court, must file their ... motion with the 

Clerk using forms available from the Court.”). Coward was expressly informed: 

“Petitioner's new petition will supersede his original petition; therefore, Petitioner shall not 

rely upon his original petition.” (Doc. 119). Cowart timely complied with that order, 

resulting in the instant operative § 2255 motion (Doc. 120). Accordingly, the claims and 

issues in Cowart’s initial motion (Doc. 118) have not been considered by the undersigned, 

and it is recommended that the initial motion (Doc. 118) be found MOOT.

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 1 of 20
2

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

the United States District Courts, and S.D. Ala. GenLR 72(a)(2)(R).

Upon consideration, and for the reasons stated herein, the undersigned 

RECOMMENDS that Cowart’s § 2255 motion (Doc. 120) be DENIED without an 

evidentiary hearing or a response from the Government and that Cowart also be 

denied both a Certificate of Appealability and leave to proceed in forma pauperis on 

appeal.

I. Background

On April 24, 2014, Cowart, pursuant to a written plea agreement (Doc. 50),

pled guilty to Counts 1 and 3 of the Indictment (Doc. 1), respectively charging 

offenses of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 

846, and possession of a List I chemical with knowledge and reasonable cause to 

believe it would be used to manufacture a controlled substance in violation of 21 

U.S.C. § 841(c)(2), respectively. (See Docs. 53, 89).

Neither Cowart nor the Government filed written objections to the Probation 

Office’s presentence investigation report (PSI) (see Docs. 65, 67, 70), and the Court 

adopted the PSI without change at sentencing (see Doc. 90 at 1). The Court also 

granted the Government’s motion for a downward sentencing departure under 

U.S.S.G. 5K1.1. (Docs. 79, 83). On August 22, 2014, the Court sentenced Cowart to 

75-month terms of imprisonment as to each of Counts 1 and 3 followed by 3-year 

terms of supervised release as to each count, with the terms to run concurrently to 

each other. (See Doc. 89). No direct appeal was taken. Cowart was represented by 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 2 of 20
3

appointed counsel Dennis Knizley, Esq. from arraignment through sentencing.3 

Proceeding pro se, Cowart now challenges his sentence under § 2255 motion (see

Docs. 118, 120).

After conducting preliminary review of Cowart’s operative § 2255 motion 

under Rule 4(b) of the Rules Governing Section 2255 Proceedings, the undersigned 

concludes that the Government need not be ordered to file a response prior to 

denying the motion because “it plainly appears from the motion ... and the record of 

prior proceedings that [Cowart] is not entitled to relief...” 

II. Claim for Relief

Cowart’s sole claim for relief in his § 2255 motion alleges that Knizley

rendered ineffective assistance of counsel at sentencing in violation of the Sixth 

Amendment to the U.S. Constitution by failing to object to a 2-point sentencing 

guideline enhancement imposed by the PSI “[p]ursuant to U.S.S.G. § 2D1(b)(12)” for 

“maintain[ing] a premises for the purpose of manufacturing or distributing a 

controlled substance...” (Doc. 71, § 21).4

 3 Prior to his April 24, 2014 guilty plea hearing, Cowart filed pro se a motion to appoint new 

counsel, claiming he was not satisfied with Knizley’s performance. (Doc. 49) . However, 

Knizley continued to represent Cowart at his guilty plea (see Doc. 53), and the motion was 

subsequently found “moot for reasons stated on the record...” (Doc. 54).

4 The undersigned abides by the directive to “liberally construe pro se filings, including pro 

se applications for relief pursuant to § 2255.” Winthrop-Redin v. United States, 767 F.3d 

1210, 1215-16 (11th Cir. 2014).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 3 of 20
4

III. Applicable Law

A. General Standards in § 2255 Proceedings

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). Specifically, § 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 

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 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 4 of 20
5

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.” Id. at 1232 (internal 

citations, quotations, and 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). Accord, e.g., Diveroli v. 

United States, 803 F.3d 1258, 1263 (11th Cir. 2015).

B. 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. 

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

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 5 of 20
6

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)). Moreover, “[b]ecause 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.”); Johnson v. 

Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears the burden of 

proof on the ‘performance’ prong as well as the ‘prejudice’ prong of a Strickland

claim, and both prongs must be proved to prevail. The Strickland test is not easily 

met; as we have said, ‘the cases in which habeas petitioners can properly prevail on 

the ground of ineffective assistance of counsel are few and far between.[]’ ” (quoting 

Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (citation omitted))).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 6 of 20
7

“The test for ineffectiveness is not whether counsel could have done more; 

perfection is not required.” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995)

(en banc). “A lawyer can almost always do something more in every case. But the 

Constitution requires a good deal less than maximum performance.” Atkins v. 

Singletary, 965 F.2d 952, 960 (11th Cir. 1992). Accord, e.g., Burt v. Titlow, 134 S. 

Ct. 10, 18 (2013) (“[T]he Sixth Amendment does not guarantee the right to perfect 

counsel; it promises only the right to effective assistance...”).

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 

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 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 7 of 20
8

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). 

“[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).

IV. Analysis

A. Claim for Relief

U.S.S.G. § 2D1.1(b)(12), applicable to drug manufacturing cases such as 

Cowart’s, provides for a two-point enhancement to a defendant’s guideline base 

offense level “[i]f the defendant maintained a premises for the purpose of 

manufacturing or distributing a controlled substance...” Section 2D1.1(b)(12) 

“applies to a defendant who knowingly maintains a premises (i.e., a building, room, 

or enclosure) for the purpose of manufacturing or distributing a controlled 

substance, including storage of a controlled substance for the purpose of 

distribution. Among the factors the court should consider in determining whether 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 8 of 20
9

the defendant ‘maintained’ the premises are (A) whether the defendant held a 

possessory interest in (e.g., owned or rented) the premises and (B) the extent to 

which the defendant controlled access to, or activities at, the premises. 

Manufacturing or distributing a controlled substance need not be the sole purpose 

for which the premises was maintained, but must be one of the defendant’s primary 

or principal uses for the premises, rather than one of the defendant’s incidental or 

collateral uses for the premises. In making this determination, the court should 

consider how frequently the premises was used by the defendant for manufacturing 

or distributing a controlled substance and how frequently the premises was used by 

the defendant for lawful purposes.” U.S.S.G. § 2D1.1(b)(12), comment (n. 17).5

Cowart’s § 2255 motion alleges:

Mr. Knizley would not argue, or object to the two point enhancement 

for occupying a residence for the purpose of manufacturing a controlled 

substance. Mr. Knizley stated that it would not do any good to object 

to the two point enhancement. I asked Mr. Knizley several times at 

sentencing to argue the two points. Mr. Knizley refused to argue in my 

defense. The incident reports and statements in this case will clearly 

prove that I was homeless and had nowhere to live except my 

neighbors residence. The neighbors, my mother, stepfather, my 

codefendant will all testify that I was not manufacturing drugs at this 

residence in the beginning. I had nowhere else to live. The two point 

enhancement did not apply.

...

All of the police reports, statements, interviews will show that the 

 5 To date, the Eleventh Circuit Court of Appeals has not addressed this guideline in a 

binding decision. See United States v. Cintora-Gonzalez, 569 F. App'x 849, 854 (11th Cir. 

June 24, 2014) (per curiam) (unpublished) (“Few circuits have addressed this guideline, and 

we have done so only in a single unpublished opinion.” (citing United States v. Vega, 500 F. 

App’x 889, 891 (11th Cir. Dec. 11, 2012) (per curiam) (unpublished) (concluding that the 

district court did not plainly err in applying the enhancement where the defendant sold 

cocaine from his home on multiple occasions)).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 9 of 20
10

Defendant was homeless and had nowhere to live except the shed at 

the neighbors house. The Defendant wasn’t manufacturing drugs at 

the time he moved into the shed. The two point enhancement should 

have never been applied. The defendants attorney (Mr. Knizley) stated 

to the defendant that the enhancement would be argued at sentencing. 

Mr. Knizley failed to argue the enhancement at sentencing and stated 

to the defendant that it wouldn’t be in the defendants best interest to 

argue the enhancement. The defendant filed two previous motions 

asking the court to withdraw Mr. Knizley from the case due to 

ineffective assistance of counsel.

(Doc. 120 at 4 – 5).

Knizley was not ineffective for failing to object to the sentencing 

enhancement, as Cowart had already admitted to facts sufficient to apply the 

enhancement when he entered his guilty plea. See United States v. Wilson, 884 

F.2d 1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court may 

be based on ... facts admitted by a defendant’s plea of guilt,” among other things.); 

United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009) (“A fact admitted to 

during a guilty plea cannot later be contested when it appears in the defendant's 

P[resentence Investigation Report].”). In the factual resume that accompanied his 

plea agreement,6 Cowart admitted to facts indicating: (1) he had been living in the 

shed for three months prior to his arrest; (2) he moved into the shed after being 

kicked out of his parents’ house, after his mother learned that someone had sent her 

address to “meth text;” (3) working surveillance cameras were concealed on the 

shed, with two working monitors inside of the shed; (4) drug manufacturing 

paraphernalia was found in the shed; and (5) people were in and out of the shed “all 

 6 Cowart and Knizley each signed both the plea agreement and factual resume, with 

Cowart attesting by his signature that “the Factual Resume ... is true and accurate in every 

respect, and that had the matter proceeded to trial, the United States could have proved 

the same beyond a reasonable doubt.” (Doc. 50 at 13, 19).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 10 of 20
11

the time and at all hours of the day and night,” including his drug conspiracy codefendants Michael Sweat and Jammie Hopkins. (Doc. 50 at 16 – 18).

These admitted facts plainly show that Cowart used a “premises” (i.e. the 

shed, a “building”) to “manufacture a controlled substance.” Cowart had been using 

the shed as his primary residence for three months and had a working surveillance 

system in place on the shed, which strongly supports a finding that he did not 

simply use, but “maintained,” the premises.7 See United States v. Elmore, 586 F. 

App'x 559, 561 (11th Cir. Oct. 16, 2014) (per curiam) (unpublished) (“We have 

interpreted 21 U.S.C. § 856(a)(1), which criminalizes maintaining a drug-involved

premises, as holding that the ‘critical elements’ of the offense are ‘(1) knowingly 

exercising some degree of control over the premises; (2) knowingly making the place 

available for the use alleged in the indictment; and (3) continuity in pursuing the 

manufacture, distribution, or use of controlled substances.’ United States v. Clavis,

956 F.2d 1079, 1090 (11th Cir. 1992). In Clavis, we rejected the argument that 

regular use of a premises ‘as a site from which to distribute cocaine is, by itself, 

sufficient’ to constitute ‘maintaining’ a premises, but held instead that ‘[a]cts 

evidencing such matters as control, duration, acquisition of the site, renting or 

 7 That Cowart did not own or formally lease the shed does not prevent application of the 

enhancement. See United States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015) (“The

defendant’s efforts to resist the enhancement are unavailing. ... [H]e argues that he did not 

maintain the apartment at all since he neither owned nor rented it. This is true as far as it 

goes, but it does not take the defendant very far. The enhancement does not require either 

ownership or a leasehold interest. See, e.g., United States v. Renteria–Saldana, 755 F.3d 

856, 859–60 (8th Cir. 2014); [United States v.] Flores–Olague, 717 F.3d [526,] 532[ (7th Cir. 

2013)]. This makes good sense: it would defy reason for a drug dealer to be able to evade 

application of the enhancement by the simple expedient of maintaining his stash house 

under someone else's name. See United States v. Morgan, 117 F.3d 849, 857–58 (5th Cir.

1997).”).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 11 of 20
12

furnishing the site, repairing the site, supervising, protecting, supplying food to 

those at the site, and continuity” constituted evidence of ‘maintaining.’ Id. at 

1091.”);8 Jones, 778 F.3d at 384 (“In cases arising under section 856, courts have 

deemed relevant considerations such as ‘[a]cts evidencing such matters as control, 

duration, acquisition of the site, renting or furnishing the site, repairing the site, 

supervising, protecting, supplying food to those at the site, and continuity.’ United 

States v. Clavis, 956 F.2d 1079, 1091 (11th Cir. 1992). This is obviously a nonexhaustive list; as particular cases vary, so too will the factors that may inform the 

question of whether a defendant maintains a premises.”). Cf. United States v. 

Rodney, 532 F. App'x 465, 473 (5th Cir. Feb. 27, 2013) (per curiam) (unpublished) 

(“Immediately before the two Rodney crack transactions observed by law 

enforcement, Rodney accessed the shed on one occasion and appeared to access the 

shed on the other occasion. Unlike a residence or house, the shed was apparently a 

run-down structure for which Rodney had no legitimate use, and Rodney has offered 

no innocent explanation for his close connection to the shed just prior to large crack 

cocaine deals. While Rodney might not have owned or rented the shed, he had 

 8 “The stash house enhancement was developed as a response to the Fair Sentencing Act of 

2010, which directed the Sentencing Commission to provide for a two-level enhancement 

when ‘the defendant maintained an establishment for the manufacture or distribution of a 

controlled substance, as generally described in [21 U.S.C. § 856].’ ... In view of the 

enhancement’s lineage, courts interpreting it have generally looked to case law interpreting 

21 U.S.C. § 856.” United States v. Jones, 778 F.3d 375, 384 (1st Cir. 2015) (quoting Pub.L. 

No. 111–220, § 6(2), 124 Stat. 2372, 2373). See also Elmore, 586 F. App'x at 561 (“Section 

2D1.1(b)(12) was new to the November 2011 Guidelines Manual, and it implemented a 

directive from the Fair Sentencing Act, which directed the Sentencing Commission to add a 

two-level enhancement ‘as generally described in ... (21 U.S.C. [§ ] 856).’ Fair Sentencing 

Act of 2010, Pub. L. No. 111–220, § (6)(2), 124 Stat. 2372, 2373 (2010). The ‘disorderly 

house’ statute makes it illegal to ‘knowingly open, lease, rent, use, or maintain any place, 

whether permanently or temporarily, for the purpose of manufacturing, distributing, or 

using any controlled substance.’ 21 U.S.C. § 856(a)(1).”).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 12 of 20
13

unimpeded access to the shed and used it as he wished. []This evidence supports the 

inference that Rodney at least temporarily used the shed to store and package 

drugs for distribution. The district court did not clearly err in finding that Rodney 

maintained the premises to distribute drugs.”).

That Cowart may have been “homeless” with “nowhere to go” but the shed for 

shelter, or that he did not begin manufacturing drugs until sometime after moving 

into the shed, does not foreclose application of § 2D1.1(b)(12), as “manufacturing ... 

a controlled substance need not be the sole purpose for which the premises was 

maintained...” U.S.S.G. § 2D1.1(b)(12), comment (n. 17). Considering that (1) a 

significant amount of drug manufacturing paraphernalia was found in the shed, (2) 

Cowart’s co-conspirators were seen frequently coming and going from the shed, and 

(3) Cowart moved into the shed after being kicked out of his parents’ home due to 

reported drug activity, the factual basis for finding that drug manufacturing was a 

“primary or principal use for the premises” was established by Cowart’s guilty plea. 

See United States v. Johnson, 558 F. App'x 902, 905 (11th Cir. Mar. 7, 2014) (per 

curiam) (unpublished) (“The fact that Johnson also used the storage unit to store his

personal belongings does not preclude application of the enhancement ... Given the 

frequency over time that Johnson used the storage facility to make 

methamphetamine, we cannot say the district court clearly erred in finding that his 

methamphetamine manufacturing was one of the primary purposes of the storage 

unit.”); Jones, 778 F.3d at 384-85 (“The ‘use’ component of the stash house 

enhancement is []protean ... A defendant’s purpose may be inferred from the 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 13 of 20
14

totality of the circumstances, including such facts as the quantity of drugs 

discovered and the presence of drug paraphernalia or tools of the drug-trafficking 

trade. See Flores–Olague, 717 F.3d at 533–34; see also [United States v. ]Verners, 53 

F.3d [291,] 296–97[ (10th Cir. 1995)] (explaining that ‘the more characteristics of a 

business that are present, the more likely it is that the property is being used’ for a 

prohibited purpose). One relevant consideration is frequency; that is, how often the 

defendant used the premises for drug-related purposes and how often he used the 

premises for lawful purposes.”); United States v. Cintora-Gonzalez, 569 F. App'x 

849, 855 (11th Cir. June 24, 2014) (per curiam) (unpublished) (“The Sixth Circuit 

upheld the application of § 2D1.1(b)(12) where the defendant had both a possessory 

interest in the residence and controlled the access to the home. See United States v. 

Johnson, 737 F.3d 444, 447 (6th Cir. 2013). In reaching this conclusion, the Sixth 

Circuit explained that ‘[T]he more characteristics of a business that are present’ in 

the home—such as ‘tools of the trade (e.g., laboratory equipment, scales, guns and 

ammunition to protect the inventory and profits),’ ‘profits,’ including large 

quantities of cash, and ‘multiple employees or customers’—‘the more likely it is that 

the property is being used “for the purpose of” [prohibited] drug activities.’ Id. at 

447–48 (quoting United States v. Verners, 53 F.3d 291, 295–97 (10th Cir. 1995) 

(discussing 21 U.S.C. § 856)). []Relying on this persuasive authority, we conclude 

that the district court properly applied § 2D1.1(b)(12) to Cintora–Gonzalez’s 

guidelines calculations. The evidence at trial showed that Cintora–Gonzalez used 

his apartment for the purpose of manufacturing or distributing drugs. Cintora–

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 14 of 20
15

Gonzalez concedes his proprietary interest in the premises. And the evidence 

showed Cintora–Gonzalez controlled access to and activities at the apartment.”).

Cowart has failed to allege facts indicating that his desired objection to § 

2D1.1(b)(12)’s enhancement had any merit, and “[a] lawyer cannot be deficient for 

failing to raise a meritless claim...” Freeman v. Atty. Gen., 536 F.3d 1225, 1233 

(11th Cir. 2008). See also, e.g., Brownlee, 306 F.3d at 1066 (“Counsel was not 

ineffective for failing to raise these issues because they clearly lack merit.”); United 

States v. Bridgewater, No. 3:07CR58/MCR/CJK, 2014 WL 4354425, at *5 (N.D. Fla. 

Sept. 2, 2014) (“It is []well-established that counsel is not ineffective for failing to 

preserve or argue a meritless claim.” (collecting cases)). At the very least, he has 

not shown that no competent counsel would have found the objection to have little 

or no merit. Accordingly, Cowart has failed to show that Knizley performed 

deficiently under Strickland, and his § 2255 motion is due to be DENIED.

B. 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 

Cowart’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

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 15 of 20
16

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2).

Where 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 v. Cockrell, 537 U.S. 322, 336 (2003) (“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 Cowart’s § 2255 motion to vacate should be resolved in a different 

manner or that any of the issues presented is adequate to deserve encouragement to 

proceed further. Accordingly, Cowart is not entitled to a Certificate of Appealability 

on his claim.

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 the 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 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 16 of 20
17

C, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation 

adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011);9 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).

C. 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. 

 9 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.).

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 17 of 20
18

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 Cowart in this action would be without merit and 

therefore not taken in good faith and, accordingly, find that Cowart is not entitled 

to appeal in forma pauperis.

IV. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that 

Cowart’s operative § 2255 motion (Doc. 120) be DENIED without an evidentiary 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 18 of 20
19

hearing or a response from the Government and DISMISSED with prejudice, 

and that his initial § 2255 motion (Doc. 118) be found MOOT. Should that 

recommendation be adopted, it is further RECOMMENDED that Cowart be found 

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

on appeal.

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. GenLR 72(c). The parties should note that under 

Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's 

findings or recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge 

on appeal the district court's order based on unobjected-to factual and legal 

conclusions if the party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of a proper objection, 

however, the court may review on appeal for plain error if necessary in the interests 

of justice.” 11th Cir. R. 3-1. 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 

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 19 of 20
20

merely incorporates by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this the 28th day of March 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cr-00037-KD-N Document 123 Filed 03/29/16 Page 20 of 20