IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SCOTTIE MITCHELL,

Petitioner,

:

:

:

: CIVIL. ACT. NO.: 14-0574-KD-N

vs. : CRIMINAL. NO. 12-00299-KD-N

: 

UNITED STATES OF AMERICA,

Respondent.

:

:

:

REPORT AND RECOMMENDATION

Scottie Mitchell ("Mitchell"), a federal prisoner proceeding pro se, has filed a 

Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 58)

1 (the 

"§ 2255 Motion") challenging his sentence in the above-styled criminal action. The 

United States of America ("Respondent") has timely filed a response in opposition (Doc. 

62) to the § 2255 Motion, and Mitchell has filed a reply (Doc. 64) in support of his § 

2255 Motion. The § 2255 Motion is now under submission and is ripe for adjudication. 

This matter has been referred to the undersigned United States Magistrate Judge 

for entry of a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B)-

(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States 

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

herein, it is RECOMMENDED that Mitchell’s § 2255 Motion (Doc. 58) be DENIED and 

that the claims therein be DISMISSED. It is further RECOMMENDED that Mitchell be 

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

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

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on appeal.

I. Background.

On July 20, 2011, deputies with the Baldwin County, Alabama Sheriff’s Office 

responded to a report of a suspicious vehicle in the area. (Doc. 47 at 3). The deputies 

located the vehicle at a gas station just off Interstate 10 (I-10). (Id.). The occupants of 

the vehicle, Scottie Mitchell and his girlfriend, observed the patrol car and fled eastbound 

on I-10. (Id.). The deputies activated their lights and siren and gave chase to Mitchell’s 

vehicle. In attempt to elude the deputies, the vehicle traveled at speeds in excess of 110 

miles per hour and weaved in and out of traffic. (Id.). The chase ended when Mitchell’s 

vehicle crashed into a ditch at the Florida state line. (Id.). The deputies detained 

Mitchell, while his girlfriend was taken to the emergency room for injuries sustained. 

Upon search of the vehicle, the deputies located a bag of marijuana and various stolen 

items. A Smith and Wesson model CTG, .38-caliber revolver was found in the woods 

beside the vehicle. (Id. at 4). Mitchell was advised his Miranda rights and confessed that 

the items found in his vehicle, including the revolver were stolen from a residence in 

Baldwin County, Alabama that he and his girlfriend burglarized. (Id.). Mitchell was 

found guilty of theft of property in violation of § 13A-7-7 of the Code of Alabama2 and 

sentenced pursuant to the Habitual Offender Act after the court found that Mitchell was 

previously convicted of one prior adult felony, a 1997 third-degree burglary conviction in 

Pearl River County, Mississippi. (Id. at 10-11). 

 2 The charges of second-degree theft of property, possession of pistol by certain 

forbidden persons, tampering with physical evidence, reckless endangerment, possession 

of marijuana, and attempting to elude were all dismissed by the Baldwin County Circuit 

Court in Bay Minette, Alabama. (Doc. 47 at 10-11).

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On August 2, 2011, the case was referred to an Alcohol Tobacco and Firearms 

specialist for possible federal firearms violations. (Id. at 4). It was determined that the 

Smith and Wesson revolver recovered from the search of Mitchell’s vehicle was 

manufactured outside the state of Alabama, thereby affecting interstate commerce, and 

Mitchell was indicted on two counts of firearm violations in the Southern District of 

Alabama on December 27, 2012. (Id.). Count one charged that on or about July 20, 

2011, Mitchell having been convicted of a crime punishable by imprisonment for a term 

exceeding one year (that being commercial burglary on November 26, 1997, in the 

Circuit Court of Pearl River County, Mississippi) did knowingly possess, in and affecting 

commerce, a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1 at 1). Count two 

charged that on or about July 20, 2011, Mitchell did receive, possess, conceal, store, 

barter, sell and dispose of a stolen firearm, which Mitchell knew and had reasonable 

cause to believe had been stolen and which had been previously shipped and transported 

in interstate commerce, in violation of 18 U.S.C. § 922(j). (Id.). On February 13, 2013, 

a federal warrant was issued for Mitchell’s arrest. (Doc. 4). 

However, in the time between the July 20, 2011, Baldwin County offense and the 

federal firearm offense subject of this petition, Mitchell accrued four other criminal 

charges:

1. On November 1, 2011, in Baldwin County, Alabama, Mitchell was charged 

with and found guilty of third-degree assault. He was sentenced on December 

15, 2011. (Doc. 47 at 11)

2. On December 7, 2011, in Baldwin County, Alabama, Mitchell was charged 

with and found guilty of third-degree burglary. He was sentenced on 

February 16, 2012. (Id.).

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3. On February 24, 2012, in Houma, Louisiana, Mitchell was charged with and 

found guilty of theft over $1,500. He was sentenced on May 24, 2012. (Id. at 

12). 

4. On February 24, 2012, in Houma, Louisiana, Mitchell was charged with and 

pled guilty to the unauthorized use of an access card. He was sentenced on 

May 24, 2012. (Id.).

Consequently, at the time the federal arrest warrant was issued for Mitchell, he was 

imprisoned in the State of Louisiana on the above-mentioned February 24, 2014 charges. 

The Southern District of Alabama petitioned for writ of habeas corpus ad prosequendum,

which was granted, and the Louisiana Department of Corrections released Mitchell into 

federal custody on May 23, 2013, to face firearm charges. (Docs. 20-22). 

On July 30, 2013, Mitchell pleaded guilty to count one of the indictment pursuant 

to a written plea agreement, and he executed a “Factual Resume,” in which he admits the 

factual basis for his conviction. (Doc. 40). A Presentence Investigation Report (“PSI 

report”) was prepared by the probation office. The PSI report utilized the 2012 

Guidelines Manual to determine Mitchell’s Offense Level for violation of 18 U.S.C. § 

922(g)(1). (Doc. 47 at 5; see also U.S.S.G. § 2K2.1). Based on U.S.S.G. § 

2K2.1(b)(4)(A), two levels were added to Mitchell’s base offense level because the 

offense involved a stolen firearm and four levels were added, pursuant to U.S.S.G. § 

2K2.1(b)(6)(B), because Mitchell possessed the firearm in connection with another 

felony offense, the July 20, 2011 burglary charge. (Doc. 47 at 5). An additional two 

levels were added because Mitchell recklessly created a substantial risk of death or 

seriously bodily injury to another person in the course of fleeing from a law enforcement 

officer. (Id.; see also U.S.S.G. § 3C1.2). The PSI reported an adjusted offense level of 

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28 for Mitchell. (Doc. 47 at 5). However, due to Mitchell’s acceptance of responsibility 

and timely plea of guilty, Mitchell’s total offense level was decreased to 25. (Doc. 47 at 

6). The PSI calculation of Mitchell’s criminal history points was 20, placing him in 

Category VI for sentencing purposes; 3 this included a two-point increase due to the fact 

that Mitchell was on probation on July 20, 2011 when he committed the offense in 

question. (Doc. 47 at 9-10, 12; see also U.S.S.G. § 4A1.1(d)). 

Based upon Mitchell’s total offense level of 25 and criminal history category of 

VI, the advisory guideline imprisonment range was 110 to 137 months, and the statutory 

provision of Mitchell’s offense, § 922(g)(1), provided a maximum term of imprisonment 

of 10 years. (Doc. 47 at 17). Therefore, the sentencing guideline range for Mitchell was 

110 months to 120 months, and the government recommended sentencing Mitchell at the 

low end of the range. (Id.). The Court followed the government’s recommendation and 

imposed a 110-month sentence of imprisonment on December 11, 2013.

4

 (Doc. 52).

On December 5, 2014, Mitchell filed pro se the present § 2255 motion 

challenging the effectiveness of his counsel’s failure to object to certain PSI 

enhancements that increased the length of his imprisonment sentence, and Mitchell seeks 

 3 Mitchell has a long history of assorted criminal charges dating back to 1996, 

when he was 18 years of age and was found guilty of commercial burglary and sentenced 

to five years imprisonment, which was suspended for 5 years probation but was 

ultimately revoked. (Doc. 47 at 6). The review of Mitchell’s criminal history shows the 

judicial and prison systems to be a revolving door for Mitchell as he exhibits a clear 

pattern of recidivism his entire adult life. (See id. at 6-14). 

4 Mitchell was given credit by the Court for time previously served prior to his 

sentencing. This included credit for the 7 months he served in Baldwin County, Alabama 

on the July 20, 2011 burglary charge and 6 months he served on the writ in the Southern 

District of Alabama on the instant firearms offense. These previous 13 months of 

custody were deducted from his 110-month sentence leaving him a term of 97 months to 

serve in the custody of the United States Bureau of Prisons. (Doc. 52 at 2). 

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enforcement of the Court’s recommendation to the Bureau of Prisons to run his state and 

federal imprisonment sentences concurrent. (Doc. 58).5 

II. Applicable Law

A. General Standards Under § 2255

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

by moving the sentencing court to vacate, set aside, or correct the sentence." WinthropRedin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Section 2255 provides:

A prisoner in custody under sentence of a court established by Act of 

Congress claiming the right to be released upon the ground that the 

sentence was imposed in violation of the Constitution or laws of the 

United States, or that the court was without jurisdiction to impose such 

sentence, or that the sentence was in excess of the maximum authorized by 

law, or is otherwise subject to collateral attack, may move the court which 

imposed the sentence to vacate, set aside or correct the sentence ... If the 

court finds that the judgment was rendered without jurisdiction, or that the 

sentence imposed was not authorized by law or otherwise open to 

collateral attack, or that there has been such a denial or infringement of the 

constitutional rights of the prisoner as to render the judgment vulnerable to 

collateral attack, the court shall vacate and set the judgment aside and 

shall discharge the prisoner or resentence him or grant a new trial or 

correct the sentence as may appear appropriate.

28 U.S.C. § 2255(a)-(b).

"Once the defendant's chance to appeal has been waived or exhausted," a court is 

"entitled to presume he stands fairly and finally convicted, especially when, as here, he 

 5 Subsequent to filing the current petition, Mitchell moved, in his “Motion for 

Credit for Time Served in Pursuant to such Nunc Pro Tunc”, for the Court to order the 

Federal Bureau of Prisons to grant him credit for the time he served in federal custody 

from July 20, 2011, prior to his current federal conviction and sentence. (Doc. 59). The 

Court dismissed the motion for lack of jurisdiction and informed Mitchell that the proper 

venue for such motion was in the district court of the district in which he was 

incarcerated. (Doc. 60 at 1) (citing Fernandez v. United States, 941 F.2d 1488, 1495 

(11th Cir. 1991)). 

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already has had a fair opportunity to present his federal claims to a federal forum." 

United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (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. Accordingly, a nonconstitutional error that may justify reversal on 

direct appeal does not generally support a collateral attack on a final judgment unless the 

error (1) could not have been raised on direct appeal and (2) would, if condoned, result in 

a complete miscarriage of justice." Id. at 1232-33 (internal citations, quotations, and 

footnote omitted). Generally, if a challenge to a conviction or sentence is not made on 

direct appeal, it will be procedurally barred in a § 2255 challenge. Mills v. United States, 

36 F.3d 1052, 1055 (11th Cir. 1994).

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 

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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). However, claims of ineffective assistance of counsel 

fall outside the procedural default rule and, in most cases are properly raised for the first 

time in a habeas petition. Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 

155 L. Ed. 2d 714 (2003). To establish ineffective assistance of counsel, a petitioner 

"must show that his attorney's performance was deficient and that the deficiency was 

prejudicial." Id. However, "[c]onclusory allegations of ineffective assistance are 

insufficient" Wilson v. U.S., 962 F.2d 996, 998 (11th Cir. 1992) (quoting U.S. v. 

Lawson, 947 F.2d 849, 853 (7th Cir. 1991)). Furthermore, "it is axiomatic that the failure 

to raise nonmeritorious issues does not constitute ineffective assistance." Bolender v. 

Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994).

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, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (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, 

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853 (7th Cir. 1991)). "Because both parts of the test must be satisfied in order to show a 

violation of the Sixth Amendment, the court need not address the performance prong if 

the defendant cannot meet the prejudice prong, or vice versa." Holladay v. Haley, 209 

F.3d 1243, 1248 (11th Cir. 2000) (citation omitted). See also Osley v. United States, 751 

F.3d 1214, 1222 (11th Cir. 2014) ("A habeas petitioner claiming ineffective assistance of 

counsel must carry his burden on both Strickland prongs, and a court need not address 

both prongs if the defendant has made an insufficient showing on one.").

In evaluating the first, or "performance," prong of Strickland, "[j]udicial scrutiny 

of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. 

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. 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).

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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, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (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, 187 L. Ed. 2d 822 (2014).

III. Analysis

A. Ineffective Assistance of Counsel.

Mitchell claims his counsel was ineffective by failing to object to erroneous PSI 

Report information, namely, post-offense criminal charges and enhancement points for 

obstruction of justice, possession of firearm in connection with another felony, and 

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committing the offense while on probation, which led to the imposition of a lengthier 

prison sentence than he deserved. "An error in the district court's calculation of the 

Sentencing Guidelines range warrants vacating the sentence, unless the error is 

harmless." United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009). If the error is 

harmless, a court need only inquire whether the sentence is reasonable. See United States 

v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). 

1. Calculation of Offenses for Criminal History.

First, Mitchell claims that his attorney was ineffective for failing to object to the 

inclusion of post-offense charges and convictions in calculating his criminal history 

category. Mitchell contends the state court convictions of December 15, 2011, for 

assault, and May 24, 2012, for theft and unauthorized use of an access card, were 

subsequent (in time) convictions to his federal firearms offense and, therefore, cannot be 

considered prior criminal conduct for purposes of calculating his criminal history 

category under the sentencing guidelines.

6

 Mitchell’s claim, however, lacks merit. 

The following directives apply as to calculating one’s criminal history category:

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

year and one month.

 6 Pursuant to § 4A1.1(c), Mitchell’s Presentence Investigation Report (PSI) added 

one point for Mitchell’s December 2011 conviction in an Alabama circuit court for thirddegree assault, which resulted in a sentence of 180 days custody, split to serve 34 days, 

balance suspended for 12 months probation and a fine and court costs. Pursuant to 

4A1.1(a), Mitchell’s PSI added three points for Mitchell’s May 2012 conviction in a 

Louisiana state court for theft over $1,5000, which resulted in a sentence of five years 

custody, to run concurrently with the associated charge of unauthorized use of an access 

card. 

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

days not counted in (a).

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

total of 4 points for this subsection.

...

U.S.S.G. § 4A1.1. Coupled with § 4A1.1 in determining an offender's criminal history is 

§ 4A1.2, the definitions and instructions for §4A1.1; therefore, sections 4A1.1 and 4A1.2 

must be read together. See U.S.S.G. § 4A1.1 commentary. 

The Court need only look to § 4A1.2(a)(1) to determine the merit of Mitchell’s 

claim; it defines a "prior sentence" as "any sentence previously imposed upon 

adjudication of guilt." U.S.S.G. § 4A1.2(a)(1). Moreover, the commentary for section 

4A1.2 is dispositive of Mitchell’s issue, stating: "'Prior sentence' means a sentence

imposed prior to sentencing on the instant offense, other than conduct that is part of the 

instant offense. . . . A sentence imposed after the defendant's commencement of the 

instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was 

for conduct other than conduct that was part of the instant offense." U.S.S.G. § 4A1.2 

commentary note 1. Thus, the guidelines fully support the consideration of Mitchell’s 

state court sentences, occurring prior to his federal firearms sentence, in determining his 

criminal history category.7 See also United States v. Walker, 912 F.2d 1365, 1366-1367 

(11th Cir. 1990) (concluded the sentencing court should consider sentences imposed 

before the time of sentencing rather than before the time of the federal offense), cert. 

 7 "Sentencing Guidelines commentary explaining or interpreting the Guidelines is 

'authoritative unless it violates the Constitution or a federal statute, or is inconsistent 

with, or a plainly erroneous reading of, that guideline.'" United States v. Cortes—Salazar, 

682 F.3d 953, 954 (11th Cir. 2012) (quoting Stinson v. United States, 508 U.S. 36, 38, 

113 S. Ct. 1913, 1915, 123 L.Ed.2d 598 (1993)). 

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denied, 498 U.S. 1103 (1991); United States v. Merchan, 446 F. App’x 160, 161 (11th 

Cir. Fla. 2011) (same), cert. denied, 527 U.S. 1029 (1999); United States v. Luna, 165 

F.3d 316, 325 (5th Cir.) (same), cert. denied, 526 U.S. 1126 (1999); United States v. 

Pugh, 332 U.S. App. D.C. 402 (D.C. Cir. 1998) (same), cert. denied, 526 U.S. 1125 

(1999); United States v. Smith, 900 F.2d 1442 (10th Cir. 1990) (determining state 

sentences imposed for crimes committed after the date of the defendant's federal offense 

of conviction but before the imposition of his sentence for that offense should be taken 

into account in arriving at the defendant's criminal history category); United States v. 

Tabaka, 982 F.2d 100, 101-02 (3d Cir. 1992) (same); United States v. Beddow, 957 F.2d 

1330, 1337 (6th Cir. 1992) (same); United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir. 

1991) (same); United States v. De Jesus Mesa Lopez, 349 F.3d 39 (2d Cir. 2003) 

(sentence was enhanced due to conviction and sentence made in state court before current 

federal conviction, despite that federal conviction dealt with crimes that occurred before 

state crimes); United States v. Bonilla-Martinez, No. 92-2357, No. 93-1517, 1993 U.S. 

Dist. App. LEXIS 29441 (1st Cir. Nov. 12, 1993) (same); United States v. Freeman, Nos. 

91-5299, 91-5300, 1991 U.S. App. LEXIS 21188 (4th Cir. Sept. 10, 1991) (same).8 

 

8 The Eleventh Circuit has used this same reasoning with how to treat the similar 

issue of post-plea offenses. See United States v. Fayette, 895 F.2d 1375 (11th Cir. 1990). 

In Fayette, the Court stated that “post-plea offenses, no less than offenses which occur 

prior to the entry of a plea, implicate the concerns which led to the creation of a criminal 

history category with guided departure provisions. . . . Post-plea offenses, like pre-plea 

offenses, involve additional criminal activity by the defendant. Moreover, both . . . occur 

prior to sentencing and the entry of final judgment . . ., [and both] make a defendant more 

culpable and suggest the likelihood of recidivism and future criminal behavior. Fayett, 

895 F.2d at 1380; see also United States v. Laihben, 167 F.3d 1364, 1365-66 (11th Cir. 

1999) (concluding that, in calculating the defendant's guidelines range, it was proper to 

include a conviction that occurred after the commission of, but before sentencing on, his 

current offense).

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With Mitchell’s claim completely lacking merit when paired with the definitions 

and commentary to the sentencing guidelines, as well as abundant case law, the Court 

determines that counsel's representation was not unreasonable in failing to object to the 

PSI report’s inclusion of arrests occurring after Mitchell’s federal offense but prior to his 

federal indictment and conviction. Additionally, Mitchell suffered no prejudice due to 

his counsel’s failure to object to the same, as had counsel objected, the proceeding would 

have been the same. United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (per 

curiam); see also United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.2000) 

("[C]ounsel is not ineffective for failing to raise claims reasonably considered to be 

without merit."). Therefore, Mitchell’s claim lacks merit, and the undersigned 

recommends that this claim be dismissed with prejudice. 

2. Enhancements to Offense. 

Second, Mitchell asserts three ineffective assistance claims regarding his 

counsel’s failure to object to enhancements to his PSI report. Mitchell claims that these 

enhancements significantly increased his criminal history points and his Offense Level, 

placing him in Offense Level 25 and Category IV, causing him to receive a lengthier 

prison sentence than deserved. 

The sentencing guide for Mitchell’s § 922(g)(1) offense establishes a base offense 

level of 20 if, “the defendant committed any part of the instant offense subsequent to 

sustaining one felony conviction of either a crime of violence or a controlled substance 

offense.” U.S.S.G. § 2K2.1(a)(4)(A). The government subsequently enhanced the 

offense level of Mitchell’s federal charge based on factual details of the offense from 

 

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which the firearms charge was born, the July 20, 2011 burglary, and it is these 

enhancements Mitchell challenges. Notably, Mitchell does not question the validity of 

the facts used by the government to enhance his sentence; rather, he posits that he should 

not have received enhancements for the conduct. To be successful on his claims, 

Mitchell must show that his counsel’s failure to object to said enhancements: (1) '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). 

a. Two Point Enhancement to Offense Level for Obstruction of Justice.

The government increased Mitchell’s offense level, pursuant to §3C1.2, due to his 

reckless endangerment to others caused by the car chase on July 20, 2011, when Mitchell 

attempted to elude deputies after the burglary. Section 3C1.2 states:

If the defendant recklessly created a substantial risk of death or serious 

bodily injury to another person in the course of fleeing from a law 

enforcement officer, increase by 2 levels. 

Mitchell maintains, however, that the federal firearm offense “and the flight [from 

deputies following the burglary] was too attenuated to support application of U.S.S.G. § 

3C1.2” (Doc. 64 at 5) and that his counsel was ineffective by failing to object to the 

enhancement received for such conduct. (Doc. 47 at 5). A simple review of the record, 

however, negates Mitchell’s claim. 

Mitchell admits in his Factual Resume executed as part of his plea agreement that 

on July 20, 2011, Mitchell fled by vehicle from a deputy; he drove at accelerated speeds 

on the interstate, passed cars in the left lane and on the emergency lane, and ultimately 

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crashed the vehicle into a guardrail. (Doc. 40 at 11). He further admits that the pistol 

retrieved during the search of the car was procured from the recent burglary. (Id.).

Based on the admitted to facts above, the Court finds that the July 20, 2011 

burglary and car chase are directly linked and applicable to the instant offense; 

admittedly, it is how Mitchell obtained the pistol subject to the instant offense. 

Consequently, the flight from the sheriff’s deputies is directly connected to Mitchell’s 

federal firearms charge, and the plain language of §3C1.2 establishes Mitchell’s conduct 

on July 20, 2011, is relevant to and encompassed in the instant offense. Therefore, the 

Court finds no error in the PSI report or sentencing calculations, and Mitchell has failed 

to carry his burden of establishing any of the Strickland standards of ineffective counsel. 

See Strickland, 466 U.S. at 687-88, 694; see also Chandler v. Moore, 240 F.3d 907, 917 

(11th Cir.2001) (declaring that defendant's counsel was not ineffective for failing to raise 

a nonmeritorious issue). As such, the Court recommends that Mitchell’s claim be 

dismissed with prejudice. 

b. Four Level Enhancement to Offense Level for Possessing Firearm in 

Connection with another Felony.

Mitchell next claims he received ineffective assistance of counsel when his 

counsel failed to object to the government’s four level increase to his offense level for 

use or possession of the firearm in connection with another felony offense, notably, the 

July 20, 2011 burglary. (Doc. 47 at 5). According to U.S.S.G § 2K2.1(b)(6)(B), if the 

defendant “used or possessed any firearm or ammunition in connection with another 

felony offense; or possessed or transferred any firearm or ammunition with knowledge, 

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intent, or reason to believe that it would be used or possessed in connection with another 

felony offense, increase by 4 levels.” 

As discussed above, the instant offense was borne out of a burglary, to which 

Mitchell confessed and pleaded guilty. (Doc. 47 at 3-4, 10-11; Doc. 40 at 11). The 

record is clear, a pistol was found in Mitchell’s possession following a high speed car 

chase in attempt to elude police. After arrest, Mitchell admitted to the burglary and it 

was proven that the pistol was stolen property obtained from the burglary. (Doc. 40 at 

11; Doc. 47 at 4). Mitchell produces no evidence or argument that the pistol at issue in 

the instant offense was not his or a product of the burglary. Thus, U.S.S.G § 

2K2.1(b)(6)(B) is applicable to the facts of this case, and there is no likelihood that had 

counsel objected to this enhancement that Mitchell’s sentence would have been different. 

See Strickland, 466 U.S. at 694 (“The defendant 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.”). Thus, it is recommended that this claim be 

dismissed with prejudice. 

c. Two Point Enhancement to Criminal History for Committing Offense 

while on Probation. 

The instructions for computing one’s criminal history category for sentencing 

purposes are found at U.S.S.G. § 4A1.1. The guide states that two (2) points should be 

added to the calculation “if the defendant committed the instant offense while under any 

criminal justice sentence, including probation, parole, supervised release, imprisonment, 

work release, or escape status.” U.S.S.G. § 4A1.1(d). In the case at hand, the 

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PSI report added two points to Mitchell’s criminal history because Mitchell “committed 

the instant offense while under a criminal justice sentence for Possession of Stolen 

Property (case 07-164-PKS) and Uttering Forgery (case 08-197-PKT) in the Circuit 

Court of Pike County, Mississippi.” (Doc. 47 at 12). Mitchell challenges this increase 

and his attorney’s failure to object to it and argues, contrary to the PSI report, he was not 

on probation at the time of his federal offense. 

The PSI report, however, states that Mitchell was on probation from two Pike 

County, Mississippi charges at the time of the instant offense.9 (Doc. 47 at 9-10). Most 

importantly, the PSI specifics that Mitchell was not discharged from supervision on the 

Pike County charges until August 27, 2011 (id.), but was arrested for burglary and 

eluding law enforcement, the impetus and creator of the instant firearm offense, on July 

20, 2011. (Id. at 1). Mitchell’s blanket statement that he was not on probation at the time 

the offense occurred will not suffice, as conclusory allegations are insufficient to support 

federal habeas relief. See Wilson v. United States, 962 F.2d 996, 998 (11th Cir.1992) 

("Conclusory allegations of ineffective assistance are insufficient."); Miller v. Johnson, 

200 F.3d 274, 282 (5th Cir. 2000); United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 

2005) ("mere conclusory allegations in support of a claim of ineffective assistance of 

counsel are insufficient to raise a constitutional claim.") (citing Green v. Johnson, 160 

 9 The record is scant as to the details surrounding the offenses but establishes that 

Mitchell was convicted of possession of stolen property on April 24, 2007, in Pike 

County, Mississippi, and received a sentence of 10 years imprisonment, but earned 

released supervision on December 26, 2007, with the balance of his sentenced suspended 

for five years. (Doc. 47 at 9). On February 22, 2008, Mitchell obtained another charge in 

Pike County, Mississippi, this time for uttering forgery. (Id.). His probation for the 

possession of stolen property charge was revoked on July 28, 2008, and Mitchell was 

convicted of uttering forgery on September 15, 2008, for which he received another 10-

year imprisonment sentence. (Id.). 

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F.3d 1029, 1042 (5th Cir. 1998)). Mitchell puts forth no evidence or argument to support 

his claim; he fails to even suggest an alternate date of discharge of supervision from Pike 

County. Therefore, the claim is insufficient to establish deficient performance or 

prejudice and should be denied.

B. Bureau of Prisons Computation of Sentence Length. 

Finally, Mitchell claims he is entitled to have his federal sentence run concurrent

to his State of Louisiana Department of Corrections sentence and petitions the Court for 

enforcement of the same. The district court’s judgment entered on December 11, 2013, 

states, inter alia:

The defendant is hereby committed to the custody of the United States 

Bureau of Prisons to be imprisoned for a total term of NINETY-SEVEN

(97) MONTHS as to Count 1. Said term is not a departure, but it gives the 

defendant credit for the 7 months he served in Baldwin County on the 

burglary charge and 6 months custody the defendant has served on the writ 

in the SD/AL on the instant offense, which totals 13 months credit. 

The court makes the following recommendations to the Bureau of Prisons:

The custody sentence is to run concurrently with the state custody 

sentence the defendant is currently serving. The Court recommends to the 

Bureau of Prisons that the defendant be allowed to participate in 

residential, comprehensive, substance abuse treatment, while incarcerated. 

(Doc. 52 at 2) (emphasis omitted). A review of the judgment and imposition of 

Mitchell’s sentence reveals that the district court did, in fact, recommend his federal 

custody sentence to run concurrent to his undischarged state sentence. Thus, Mitchell’s 

claim is not a challenge to the validity of the district court’s sentencing, Antonelli v. 

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir.2008) (prisoner may challenge 

the validity of his sentence in § 2255 petition), to the language of the imposing sentence, 

U.S. v. Nickson, 553 F. App'x 866, 869-70 (11th Cir. 2014) (where prisoner “seeks to 

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change the language imposing the sentence,” he invokes § 2255), or to set aside or 

correct the sentence. Instead, Mitchell claims the warden of the prison where he is 

incarcerated denied his request to have his federal sentence run concurrently with his 

imposed State of Louisiana sentence. Mitchell petitions the Court to order that the 

Bureau or Prisons (“BOP”) “grant [his federal] charge to run concurrent with time [he] 

did in LA. D. O.C.” (Doc. 58 at 7). This claim, therefore, is essentially a challenge to 

the execution of Mitchell’s sentence and is not cognizable pursuant to § 2255. 

"[C]hallenges to the execution of a sentence, rather than the validity of the 

sentence itself, are properly brought under [28 U.S.C. ]§ 2241." E.g., Antonelli v. 

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). However, "[s]ection 

2241 petitions may be brought only in the district court for the district in which the 

inmate is incarcerated." Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 

1991). Accord, e.g., Vance v. United States, 476 F. App'x 234 (11th Cir. 2012) ("[T]he 

district court lacked subject-matter jurisdiction to entertain the petition because '[s]ection 

2241 petitions may be brought only in the district court for the district in which the 

inmate is incarcerated.' Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 

1991)). As such, the court lacks jurisdiction over Mitchell’s claim because Mitchell is 

not incarcerated in this district. See Rumsfeld v. Padilla, 542 U.S. 426, 446-47, 124 S. 

Ct. 2711, 159 L. Ed. 2d 513 (2004) ("The proviso that district courts may issue the writ 

only 'within their respective jurisdictions' forms an important corollary to the immediate 

custodian rule in challenges to present physical custody under § 2241. Together they 

compose a simple rule that has been consistently applied in the lower courts, including in 

the context of military detentions: Whenever a § 2241 habeas petitioner seeks to 

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challenge his present physical custody within the United States, he should name his 

warden as respondent and file the petition in the district of confinement."). Accordingly, 

the Court lacks subject-matter jurisdiction to review these claims, and it is recommended 

that Mitchell’s claim be dismissed without prejudice.

IV. 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 

Mitchell'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 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, 120 S. Ct. 1595, 146 

L. Ed. 2d 542 (2000). See also Miller-El, 537 U.S. at 336 ("Under the controlling 

standard, a petitioner must show that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different manner or that the 

issues presented were adequate to deserve encouragement to proceed further." (citations 

omitted and punctuation modified)).). "When the district court denies a habeas petition 

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on procedural grounds without reaching the prisoner's underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, 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 his or her part." Miller-El, 537 U.S. at 

338 (quotations omitted). The undersigned finds that reasonable jurists could not debate 

whether Mitchell’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. 

Insofar as the undersigned has recommended dismissal of certain claims as procedurally 

barred, the undersigned also finds that jurists of reason would not find such a procedural 

ruling debatable. Accordingly, Mitchell 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 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-WS-C, 2011 U.S. 

Dist. LEXIS 54587, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & 

recommendation adopted, 2011 U.S. Dist. LEXIS 54465, 2011 WL 1930662 (S.D. Ala. 

May 19, 2011); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 U.S. Dist. LEXIS 

106920, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for same 

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procedure), report & recommendation adopted sub nom. Griffin v. Butterworth, 2010 

U.S. Dist. LEXIS 106921, 2010 W: 3943699 (N.D. Oct. 5, 2010).

V. 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 U.S. Dist. LEXIS 92119, 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 U.S. Dist. LEXIS 92115, 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 

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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 U.S. Dist. LEXIS 48199, 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 Mitchell in this action would be without merit and 

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

appeal in forma pauperis.

VI. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that 

Mitchell’s § 2255 motion (Doc. 58) be DENIED and all claims (listed in Grounds One 

and Two of the petition (Doc. 58 at 4-5)) be DISMISSED with prejudice, with the 

exception of his claim directed at the Bureau of Prisons (listed as Ground Three of the 

petition(Doc. 58 at 7)) which shall be DISMISSED without prejudice. Should that 

recommendation be adopted, it is further RECOMMENDED that Mitchell be found not 

entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.

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VII. 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) (effective Aug. 1, 2015). 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 merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific.

DONE this the 8th day of January, 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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