IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SANJUAN CORTEZ TAYLOR, )

 Petitioner, ) 

) CIVIL ACTION NO. 14-00471-WS

v. )

 ) CRIMINAL ACTION NO. 13-00243-WS-N

UNITED STATES OF AMERICA, )

 Respondent. )

REPORT AND RECOMMENDATIONS

Sanjuan Cortez Taylor, a prisoner currently in custody of the Alabama 

Department of Corrections and proceeding pro se, has filed a motion to vacate, set 

aside, or correct sentence under 28 U.S.C. § 2255 (Doc. 291), 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 is authorized under S.D. Ala. GenLR 72(a)(2)(R) 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 Taylor’s § 2255 motion, in accordance with 28 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).

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

2 A little over a week after Taylor’s initial § 2255 motion (Doc. 29) was docketed, the Court 

received a second § 2255 motion from him (Doc. 31). While there are some formatting 

differences, the second § 2255 motion is substantively identical to the first and is even 

dated the same (“10-1-14”). Thus, it is RECOMMENDED that Taylor’s duplicate § 2255 

motion (Doc. 31) be found MOOT.

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

RECOMMENDS that Taylor’s § 2255 motion (Doc. 29) be DENIED without an 

evidentiary hearing and that Taylor be denied a Certificate of Appealability and 

leave to proceed in forma pauperis on appeal.

I. Background

Assistant Federal Defender Christopher Knight was appointed as counsel for 

Taylor in this criminal action, representing him from arraignment through 

sentencing. On April 10, 2014, Taylor, pursuant to a written plea agreement (Doc. 

18), pled guilty to Count 2 of the Indictment (Doc. 1), charging an offense of being a 

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See Docs. 19, 

27).

In accordance with Federal Rule of Criminal Procedure 32, the Probation 

Office prepared a draft Presentence Investigation Report (PSI) (Doc. 20). In 

paragraphs 6 and 7, located within the section detailing “Offense Conduct,” the PSI

set forth facts indicating that Taylor was involved in two robberies occurring in 

June 2013. (See Doc. 20 at 3 – 4). During the first, occurring June 23, Taylor 

purportedly robbed two victims at a residence while pointing a “chrome handgun” at 

them. Taylor fired a shot from the firearm as he forced his way inside. A struggle 

for the gun ensued between Taylor and one of the victims, during which Taylor 

grabbed a knife and cut the victim. During the second robbery, occurring June 26, 

Taylor and an unidentified individual purportedly robbed a victim who identified 

himself as Taylor’s “half-brother” after Taylor had spent the night at the victim’s 

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house. During this robbery, Taylor purportedly pointed “a .22 caliber revolver” at 

the victim, which Taylor had shown the victim the night before. On June 27, 2013, 

Taylor was arrested after being found in possession of a Charter Arms, Model 

Pathfinder, .22 caliber revolver, and ammunition for the weapon. (See id. at 4, ¶ 8). 

Taylor admitted possession of this particular firearm in the factual resume 

accompanying his plea agreement. (See Doc. 18 at 11).

In calculating Taylor’s sentencing guideline offense level, the draft PSI, using 

the 2013 Guidelines Manual, noted that U.S.S.G. § 2K2.1 was the starting point for 

offenses under 18 U.S.C. § 922(g)(1). (Doc. 20 at 5, ¶ 21). The PSI then accurately 

noted: “However, pursuant to U.S.S.G. § 2K2.1(c)(1)(A), because the defendant used 

the firearm in connection with the commission or attempted commission of another 

offense (robbery), the guideline for this offense is cross referenced to U.S.S.G. § 

2B3.1(a), which states that the base offense level is 20.”3 (Id. at 5 – 6, ¶ 21). The 

draft PSI then applied a 5-point enhancement to the base offense level under § 

2B3.1(b)(2) “[b]ecause a firearm was brandished...” (Id. at 6, ¶ 22). After applying 

other adjustments, the draft PSI calculated a total offense level of 22, along with a 

criminal history category of V, resulting in a guideline sentencing range of 77 to 96 

months in prison. (Id. at 11, ¶ 59).

 3 The PSI did omit discussion of a step in its cross-referencing, as § 2K2.1(c)(1)(A) actually 

cross-references to U.S.S.G. § 2X1.1, which in turn provides for application of a base offense 

level “from the guideline for the substantive offense, plus any adjustments from such 

guideline for any intended offense conduct that can be established with reasonable 

certainty.” U.S.S.G. § 2X1.1(a). U.S.S.G. § 2B3.1 applies to the substantive offense of 

robbery.

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Knight filed written objections to the draft PSI, asserting, inter alia, that 

Taylor denied involvement in any of the robberies mentioned and that the crossreferencing to § 2B3.1 was therefore inappropriate. (See Doc. 22). The Probation 

Office responded to Taylor’s objections, declined to change its findings (see Doc. 24), 

and issued its final PSI (Doc. 23) accordingly.

Taylor came before the Court for sentencing on July 22, 2014. There, the 

Government called Joseph Willis and Sylvia Berry, who testified that Taylor robbed 

them at gunpoint at Berry’s house. Though Willis initially testified that he believed 

the robbery occurred on June 26, 2013, his description of the event matched the 

description of the June 23 robbery set forth in the PSI. Both Willis and Berry 

testified that Taylor used a silver chrome gun during the robbery and did not use a 

.22 handgun. Detective Vincent Gazzier, who investigated that robbery, was also 

called, confirming that Willis and Berry were robbed on June 23, 2013, and that 

they identified Taylor as the culprit. He also testified that a spent 9mm round was 

recovered from the scene. Finally, Detective Gazzier testified that the alleged 

victim of the June 26 robbery later admitted that a robbery did not occur and was 

charged with making a false report. (See Doc. 32-2).

After witness testimony had concluded, Knight argued:

Your Honor, the Probation Office has given my client a five-level 

enhancement, which I’ve objected to in my sentencing pleading, and 

the five-level enhancement is based upon a brandishing of a firearm. 

My client was charged with being a felon in possession of a .22-caliber 

firearm. It’s not disputed he pled guilty to that offense. He’s not pled 

guilty to any offense involving a nine-millimeter or to brandishing a 

nine-millimeter.

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We think that the five-level enhancement in paragraph 22 is 

inappropriate here because the .22 was not involved in the alleged 

felony which occurred on June 23rd of 2013. He was in possession - - at 

least the evidence suggests that he was in possession of a firearm on 

that date, but it was not the .22 that’s alleged in the incident. 

Therefore, we strenuously argue that the five-level enhancement 

should not apply because of that. He did not possess this firearm in 

connection with another felony offense.

He was discovered to be in possession of a .22 revolver when he was 

arrested, and there was no - - there was no felony - - felonious activity 

going on at the time of his arrest. So we submit that the five-level 

enhancement should not apply.

(Id. at 29 – 30).4

The Court overruled this objection and sentenced Taylor to 96 months in 

prison, the high end of his calculated guideline range, to be followed by a 3-year 

term of supervised release. (See id. at 35 – 38; Doc. 27). No direct appeal was 

taken. Proceeding pro se, Taylor now challenges his sentence under § 2255 (see Doc. 

29).

After conducting a preliminary review of Taylor’s § 2255 motion under Rule 

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

deadlines for answers and replies under Rule 5 of the Rules Governing Section 2255 

Proceedings (see Doc. 30). The Government timely filed its response in opposition 

(Doc. 32), attaching transcripts of Taylor’s guilty plea hearing (Doc. 32-1) and 

 4 Effective November 1, 2014, § 2K2.1’s cross-referencing provision applied if “the defendant 

used or possessed any firearm or ammunition cited in the offense of conviction in 

connection with the commission or attempted commission of another offense...” U.S.S.G. § 

2K2.1(c) (emphasis added). However, the version of § 2K2.1(c) in effect at the time of 

Taylor’s sentencing did not contain the phrase “cited in the offense of conviction” and 

applied if “the defendant used or possessed any firearm or ammunition in connection with 

the commission or attempted commission of another offense...” U.S.S.G. § 2K2.1(c) 

(effective Nov. 1, 2013).

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sentencing hearing (Doc. 32-2) in support; Taylor has filed no reply within the 

permitted time.

II. Claims for Relief

Taylor’s § 2255 motion alleges two grounds for relief. One alleges that the 

Court erred in applying U.S.S.G. § 2B3.1(b)(2)’s five-point enhancement to his 

guidelines calculation. The other alleges that Knight rendered ineffective 

assistance of counsel in violation of the Sixth Amendment to the United States 

Constitution. Liberally construing Taylor’s ineffective assistance of counsel claim,5

the undersigned finds that Taylor is alleging both that Knight failed to adequately 

contest the brandishing enhancement at sentencing and that he failed to consult 

with Taylor about appealing the issue.

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 

 5 See, e.g., Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014) (“We 

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

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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 

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).

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 

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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).

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 

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(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 

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 

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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))).

“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 

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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). 

“[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).

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IV. Analysis

A. Claims for Relief

1. Erroneous Sentencing Enhancement

Taylor is due no relief under § 2255 on his claim that the Court erroneously 

applied § 2B3.1(b)(2)’s five-point enhancement to his guideline calculation. As the 

Government correctly notes, this assertion of error is not cognizable on collateral 

review under § 2255. “When a prisoner, like [Taylor], alleges that his sentence was 

imposed in violation of the laws of the United States or is otherwise subject to 

collateral attack, 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 sentencing error and does not prove either 

actual innocence of his crime 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.” Spencer v. United States, 773 F.3d 1132, 1138-39 

(11th Cir. 2014) (en banc) (citations and quotations omitted), cert. denied, 135 S. Ct. 

2836 (2015). Here, Taylor was sentenced to 96 months in prison, below the 

statutory maximum of 120 months, see 18 U.S.C. § 924(a)(2). 

Additionally, Taylor waived his right to raise such a challenge on collateral 

review as part of his plea agreement. “An appeal waiver is valid if a defendant 

enters into it knowingly and voluntarily ... [The Eleventh Circuit] ha[s] consistently 

enforced knowing and voluntary appeal waivers according to their terms.” United 

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States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006). “Waiver will be enforced if 

the government demonstrates either: (1) the district court specifically questioned 

the defendant about the waiver during the plea colloquy, or (2) the record clearly 

shows that the defendant otherwise understood the full significance of the waiver.

An appeal waiver includes the waiver of the right to appeal difficult or debatable 

legal issues or even blatant error.” United States v. Grinard-Henry, 399 F.3d 1294, 

1296 (11th Cir. 2005) (per curiam) (citations and quotation omitted).

Taylor’s written plea agreement expressly stated that he “knowingly and 

voluntarily waives the right to file any direct appeal or any collateral attack, 

including a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 

2555[,]” unless the Court imposed a sentence that exceeded of the maximum 

statutory penalty or departed upward from the sentencing guidelines, or if the 

Government appealed. (Doc. 18 at 6 – 7). None of those exceptions occurred here, 

and Taylor expressly acknowledged that he understood the waiver when the Court 

specifically questioned him about it during his guilty plea colloquy. (See Doc. 32-1 

at 13 – 14). Thus, the Government is entitled to enforce the waiver as to this claim 

of error.

Finally, even if this claim were cognizable on collateral review, “it is beyond 

dispute that [Taylor] procedurally defaulted his claim that he was erroneously 

sentenced ... [Taylor] failed to advance this claim on direct appeal—indeed, a direct 

appeal was not even filed. His procedural default can be excused, however, if one of 

the two exceptions to the procedural default rule applies. []The exceptions are: (1) 

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for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence. 

Under the cause and prejudice exception, a § 2255 movant can avoid application of

the procedural default bar by showing cause for not raising the claim of error on 

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

innocence exception—as interpreted by current Supreme Court doctrine—a 

movant’s procedural default is excused if he can show that he is actually innocent 

either of the crime of conviction or, in the capital sentencing context, of the sentence 

itself.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citations and 

quotation omitted). Taylor does not argue that he is actually innocent of the crime 

to which he pled guilty. He does argue ineffective assistance of counsel, which “ ‘can 

constitute cause’ under Frady.” Brown v. United States, 720 F.3d 1316, 1333 (11th 

Cir. 2013) (quoting Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir. 2000)). “ ‘In 

order to do so, however, the claim of ineffective assistance must have merit.’ ” Id.

(quoting United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)). He also

alleges, in conclusory fashion, that Knight abandoned him after sentencing; 

abandonment by counsel can also constitute “cause” excusing a procedural default. 

See Maples v. Thomas, 132 S. Ct. 912 (2012). However, Taylor’s claims of ineffective 

assistance and of abandonment are without merit.

Accordingly, the undersigned RECOMMENDS that Taylor be denied any 

relief under § 2255 for his claim of an erroneous sentencing guideline enhancement.

2. Ineffective Assistance of Counsel

In alleging ineffective assistance of counsel, Taylor’s § 2255 motion states:

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My attorney informed me that he would straighten out the errors in 

which the U.S. Attorney possessed and used against me in the 

sentencing guidelines where there was a case against me that had 

been dismissed, but used against me to enhance my sentencing to an 

extra five (5) points, and the attorney told me that he would have it 

straightened out but didn’t and my sentence was enhanced by five 

points based on a non-conviction by use of false and misapplied 

behavior, and then counsel abandoned me altogether in court after I 

was sentenced and made no attempt to correct it.

(Doc. 29 at 3).

To the extent Taylor is arguing that Knight did not sufficiently contest the 

five-point brandishing enhancement,6 that claim is affirmatively contradicted by the 

record. See supra, Section I. Knight filed written objections to the enhancement, 

thus obligating the Government to present witnesses to prove the factual basis for 

the enhancement.7 Knight then renewed the objection at the close of evidence at 

sentencing. Taylor does not allege any exculpatory evidence that Knight could have 

presented at sentencing to rebut the alleged “false and misapplied behavior” to 

which the Government’s witnesses testified. To the extent Taylor complains that 

evidence of the robbery should not have been considered because Taylor was not 

convicted of a crime based on those circumstances, none of the guidelines leading to 

the application of the brandishing enhancement requires a criminal conviction to 

 6 “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)).

7 See United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009) (“[O]nce a defendant 

objects to a fact contained in the PSI, the government bears the burden of proving that 

disputed fact by a preponderance of the evidence ... It is the district court’s duty to ensure 

that the Government carries this burden by presenting reliable and specific evidence.” 

(quotation omitted)).

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16

support the enhancement. In sum, Taylor has failed to demonstrate deficient 

performance by Knight in opposing the enhancement.

Taylor also claims that Knight “abandoned” him and “made no attempt to 

correct” the alleged erroneous enhancement after sentencing, which the 

undersigned construes as a claim of ineffective assistance of counsel for failure to 

file a direct appeal.

The Strickland test also applies to claims of ineffective assistance 

based on counsel’s failure to file an appeal. Roe v. Flores–Ortega, 528 

U.S. 470, 476–77, 120 S. Ct. 1029, 1034, 145 L. Ed. 2d 985 (2000). 

When counsel disregards specific instructions from a convicted 

defendant to file a notice of appeal, counsel acts in a manner that is 

professionally unreasonable. Id. at 477, 120 S. Ct. at 1035. In the 

absence of specific instructions, an attorney nonetheless has a 

constitutional duty to consult with his client about an appeal, when (1) 

a rational convicted defendant would want to appeal, or (2) the 

convicted defendant reasonably demonstrated to counsel an interest in 

appealing. Id. at 480, 120 S. Ct. at 1036.

In the “vast majority of cases,” the Supreme Court expects courts will 

find “that counsel had a duty to consult with the defendant about an 

appeal.” Id. at 481, 120 S. Ct. at 1037. Factors we consider in 

determining whether a rational defendant would want to appeal 

include whether the conviction follows a guilty plea, whether the 

defendant received the sentence bargained for as part of a plea 

agreement, whether the plea agreement waived appellate rights, and 

whether there are nonfrivolous grounds for appeal. Id. at 480, 120 S.

Ct. at 1036; Otero v. United States, 499 F.3d 1267, 1270 (11th Cir.

2007). A guilty plea both “reduces the scope of potentially appealable 

issues” and indicates “the defendant seeks an end to judicial 

proceedings.” Flores–Ortega, 528 U.S. at 480, 120 S. Ct. at 1036.

If counsel performed deficiently, the petitioner must demonstrate 

prejudice by showing there was a reasonable probability that, “but for 

counsel’s deficient failure to consult with him about an appeal, he 

would have timely appealed.” Id. at 484, 120 S. Ct. at 1038. “[E]vidence 

that there were nonfrivolous grounds for appeal or that the defendant 

in question promptly expressed a desire to appeal will often be highly 

relevant in making this determination.” Id. at 485, 120 S. Ct. at 1039.

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Fields v. United States, 577 F. App'x 916, 919 (11th Cir. Aug. 18, 2014) (per curiam) 

(unpublished), cert. denied, 135 S. Ct. 1878 (2015).

Taylor has not alleged that Knight disregarded specific instructions to file a 

notice of appeal. To the extent he argues that Knight failed to consult with him 

about an appeal, Taylor has not shown that Knight performed deficiently in this 

regard. Neither the sentencing transcript (Doc. 32-2) nor the factual allegations in 

his § 2255 motion indicate that Taylor “reasonably demonstrated to counsel an 

interest in appealing,”8 nor does the record support a determination that a rational 

defendant would have wanted to appeal.

First, Taylor’s plea agreement stated that the Government would 

“recommend to the Court that [Taylor] be sentenced within the applicable advisory 

sentencing guideline range as determined by the Court.” (Doc. 18 at 6, ¶ 21). 

 8 Analysis of this claim is complicated by the fact that the record contains neither a notice of 

appeal nor a notice of non-appeal. It is debatable whether Knight was required to file one 

or the other under the local rules applicable at the time of Taylor’s sentencing, as Taylor 

was convicted under a guilty plea rather than at trial. See SD ALA LR 83.8(b)(1) (effective 

June 1, 1997 – July 31, 2015) (“In the event that a defendant in a criminal action is 

convicted following trial, counsel appointed hereunder shall advise the defendant of his 

right to appeal and of his right to counsel on appeal. If requested to do so by the defendant, 

counsel shall file a timely notice of appeal, and he shall continue to represent the defendant 

unless or until he is relieved by court order. If not so requested by the defendant, counsel 

shall file a statement that he has informed the defendant of his right to appeal and that the 

defendant has advised him that he does not desire to appeal, and thereupon his 

appointment will terminate.” (emphasis added)). However, Taylor’s written plea agreement 

stated that if Taylor “receives a sentence within or below the advisory guideline range, this 

plea agreement shall serve as the defendant’s express directive to defense counsel to timely

file a ‘Notice of Non-Appeal’ following sentencing, signed by the defendant.” (Doc. 18 at 7). 

Nevertheless, Knight’s failure to file a notice of non-appeal does not warrant a presumption 

that Taylor requested an appeal be filed or that Knight failed to consult with him about an 

appeal. See Burt, 134 S. Ct. at 17 (“[T]he absence of evidence cannot overcome the ‘strong 

presumption that counsel’s conduct [fell] within the wide range of reasonable professional 

assistance.’ ” (quoting Strickland, 466 U.S. at 689)).

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Counsel for the Government made such a recommendation at sentencing (see Doc. 

32-2 at 32), and the Court so sentenced Taylor. Thus, Taylor “received the sentence 

bargained for as part of a plea agreement.” Second, as discussed previously, 

Taylor’s plea agreement also expressly waived his right to appeal his within-theguidelines sentence. Third, the record does not demonstrate any non-frivolous 

grounds for an appeal of the brandishing enhancement. As noted previously, the 

Court expressly stated on the record that it would have imposed the same sentence 

under § 3553(a) regardless of the guidelines calculation, thus rendering any 

guideline error harmless on direct appeal under Circuit precedent. Additionally, 

the witness testimony at sentencing clearly established that Taylor brandished a 

firearm in the course of a robbery. Taylor presented no evidence to rebut this 

testimony, and his present § 2255 motion does not allege any specific evidence that 

Knight could have used to do so. Given the deference owed to a Court’s credibility 

determinations at sentencing Taylor stood little chance of success in challenging 

them on appeal. See, e.g., United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) 

(stating that the Court of Appeals reviews for “clear error” a district court’s factual 

findings necessary for application of a guideline enhancement, accords “great 

deference to the district court's credibility determinations,” and “give due deference 

to the district court’s application of the guidelines to the facts”).

Taylor’s attempt to show attorney “abandonment” as cause to overcome 

procedural default fails for similar reasons. As stated previously, Taylor has not 

alleged that Knight disregarded express instructions to file an appeal. To the 

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extent Knight may have failed to discuss the prospect of an appeal with Taylor, this 

would, at most, amount to negligence, which is insufficient to show “abandonment” 

for purposes of excusing procedural default. See Cadet v. Fla. Dep't of Corr., 742 

F.3d 473, 481 (11th Cir. 2014) (“In light of the Supreme Court’s Maples decision, we 

hold that attorney negligence, however gross or egregious, does not qualify as an 

‘extraordinary circumstance’ for purposes of equitable tolling; abandonment of the 

attorney-client relationship ... is required.”). And since Taylor filed no direct 

appeal, Knight’s service as Taylor’s appointed counsel was terminated by operation 

of the local rules then in effect. See SD ALA LR 83.8(b)(1) (effective June 1, 1997 –

July 31, 2015) (“If requested to do so by the defendant, [appointed ]counsel shall file 

a timely notice of appeal, and he shall continue to represent the defendant unless or 

until he is relieved by court order. If not so requested by the defendant, counsel 

shall file a statement that he has informed the defendant of his right to appeal and 

that the defendant has advised him that he does not desire to appeal, and 

thereupon his appointment will terminate.” (emphasis added)).

For these reasons, the undersigned RECOMMENDS that Taylor be denied 

any relief under § 2255 for his claims of ineffective assistance of counsel, and thus 

that his § 2255 motion 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 

Taylor’s § 2255 motion. 18 U.S.C. foll. § 2255, Rule 11(a) (“The district court must

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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

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(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)).).

Where habeas relief is denied on procedural grounds without reaching the merits of 

the underlying constitutional claim(s), “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, 529 U.S. at 484. “A prisoner seeking a COA must prove 

something more than the absence of frivolity or the existence of mere good faith on 

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his or her part.” Miller-El, 537 U.S. at 338 (quotations omitted). 

The undersigned finds that reasonable jurists could not debate whether 

Taylor’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, Taylor is not entitled to a Certificate of Appealability on any 

of his 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 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-WSC, 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 

 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.).

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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. 

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 

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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.”).

Considering the above-stated reasoning, the undersigned RECOMMENDS

the Court certify that any appeal by Taylor in this action would be without merit 

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

entitled to appeal in forma pauperis.

V. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that 

Taylor’s § 2255 motion (Doc. 29) be DENIED without an evidentiary hearing and 

DISMISSED with prejudice, and that his duplicate § 2255 motion (Doc. 31) be 

found MOOT. Should that recommendation be adopted, it is further 

RECOMMENDED that Taylor be found not entitled either to a Certificate of 

Appealability or to proceed in forma pauperis on appeal.

VI. 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 

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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 

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

Judge is not specific.

DONE this the 10th day of May 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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