IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WARREN JAMES LEWIS, )

 Petitioner, ) 

) CIVIL ACTION NO. 14-00581-CG

v. )

 )CRIMINAL ACTION NO. 12-00154-CG-N

UNITED STATES OF AMERICA, )

 Respondent. )

REPORT AND RECOMMENDATION

Warren James Lewis (“Lewis”), a federal prisoner proceeding pro se, has filed

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

651), accompanied by a supporting memorandum and exhibits (Doc. 63 at 19-49; 

Doc. 63-1; Doc. 63-2), challenging this Court’s judgment against him in the abovestyled criminal action. The United States of America (hereinafter, “the 

Government”) has filed a response in opposition (Doc. 69) to the § 2255 motion, and 

Lewis has timely filed a reply (Doc. 70) to the response.

Lewis’s § 2255 motion is now under submission and is ripe for adjudication. 

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

Magistrate Judge for the holding of an evidentiary hearing, if necessary, and for

entry of a report and recommendation as to the appropriate disposition, 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 S.D. Ala. 

GenLR 72(a)(2)(R). Upon consideration, and for the reasons stated herein, the 

undersigned RECOMMENDS that Lewis’s § 2255 motion (Doc. 65) be DENIED

 1 All docket citations (Doc. __) herein refer to the docket of the above-styled criminal action.

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without an evidentiary hearing and that this matter be DISMISSED with 

prejudice. Should that recommendation be adopted, the undersigned further 

RECOMMENDS that Lewis be found not entitled either to a Certificate of 

Appealability or to proceed in forma pauperis on appeal.

I. Applicable Background

On June 28, 2012, the Grand Jury of this district court issued a one-count 

indictment against Lewis, charging the offense of knowingly transporting a minor 

in interstate commerce with the intent of engaging in unlawful sexual activity “on 

or about December 25, 2011,” in violation of 18 U.S.C. § 2423(a). (Doc. 1). On 

September 5, 2012, attorney Richard D. Yelverton, Esq. (“Yelverton”), a member of 

this Court’s CJA Panel, was appointed to represent Lewis, who was then arraigned 

and entered a plea of not guilty. (See Docs. 10, 12). On October 18, 2012, Lewis 

changed his plea and entered a plea of guilty to the indictment (see Doc. 23), 

pursuant to a written plea agreement (Doc. 22). On January 15, 2013, the Court, 

rejecting the Government’s agreed-upon recommendation to a sentence at the low 

end of the guidelines, sentenced Lewis to 456 months imprisonment, to be followed 

by a lifetime of supervised release with special conditions. (See Doc. 32).

On January 24, 2013, Yelverton filed a notice of appeal on Lewis’s behalf 

(Doc. 34), followed by a motion to withdraw as counsel (Doc. 35). The Court granted 

Yelverton’s motion to withdraw and appointed Lewis new counsel on appeal. (See

Doc. 38). Appellate counsel subsequently moved to withdraw as counsel, filing a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967). (See Doc. 61). The 

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Court of Appeals for the Eleventh Circuit, agreeing upon “independent review of the 

entire record” that there were “no arguable issues of merit,” granted appellate 

counsel’s motion withdraw and affirmed Lewis’s conviction and sentence (see Doc. 

61), issuing judgment on December 18, 2013 (Doc. 62). Lewis sought no review of 

that judgment with the United States Supreme Court.

On December 9, 2014 (the date Lewis certifies under penalty of perjury that 

he delivered it to prison officials for mailing), Lewis filed his initial § 2255 motion 

(Doc. 63).2 At the Court’s direction (Doc. 64), Lewis timely filed a new § 2255 

motion on this Court’s form (Doc. 65).3 Lewis was expressly cautioned that his “new 

petition will supersede his original petition; therefore, [Lewis] shall not rely upon 

his original petition.” (Doc. 64).4 However, at Lewis’s request (Doc. 66), the 

undersigned incorporated into his new § 2255 motion the memorandum and 

exhibits attached to the initial § 2255 motion (Doc. 63 at 19-49; Doc. 63-1; Doc. 63-

2). (See Doc. 67).

In the factual resume that accompanied his plea agreement, dated October 

17, 2012, Lewis admitted, inter alia, to the following:

 2 The Government concedes that, under the “prison mailbox” rule, Lewis’s motion was 

timely filed under 28 U.S.C. § 2255(f). (See Doc. 69 at 5).

3 See Rule 2(c) of the Rules Governing Section 2255 Cases in the United States District 

Courts (A § 2255 “motion must substantially follow either the form appended to these rules 

or a form prescribed by a local district-court rule. The clerk must make the forms available 

to petitioners without charge.”); SD ALA LR 83.9(d)(1) (“All pleadings filed by persons 

proceeding pro se shall be filed on forms provided by the court, or in a form substantially 

conforming to such forms, unless otherwise ordered by the court.”).

4 (See also Doc. 67 at 2 (“As Lewis’s new § 2255 motion (Doc. 65) has superseded the Initial 

§ 2255 motion (Doc. 63 at 1-18), the Court will not further consider the allegations in the 

Initial § 2255 motion.”)).

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From witness interviews, cell phone records, cell tower location data, 

and the recollections of the children of the recent abuse, FBI agents 

were able to establish that LEWIS picked the children up from his [sic] 

Thomasina Lewis’s house in Mobile on December 24, 2010 and took 

them to a trailer in Gulfport, Mississippi. The cellular tower data 

analysis confirmed that LEWIS was in Gulfport at 9:24 a.m. on 

Christmas morning. At 2:58 p.m. he was in Mobile, and by 4:49 p.m. 

he had returned to Gulfport. Witness interviews confirmed this was 

the trip LEWIS took to pick up the children and bring them to 

Mississippi. The last night of their visit, New Year’s Eve, LEWIS went 

into the bedroom where the two girls were sleeping. This night was 

the only night of their visit that LEWIS’s girlfriend was not in the 

trailer with them. A.S. [Thomasina Lewis’s minor son, Lewis’s 

stepson] told investigators that he remembers seeing LEWIS go into 

the room where the girls were sleeping alone. LEWIS forced L.L. 

[Lewis and Thomasina Lewis’s elder minor daughter] into performing 

oral sex on him, then anally raped her. Then, LEWIS anally raped 

E.L. [Lewis and Thomasina Lewis’s younger minor daughter]. Both 

girls witnessed the abuse, and provided consistent statements to 

investigators.

(Doc. 22 at 12).

Lewis, in bringing the present § 2255 motion, has presented a Judgment of 

Divorce dated November 22, 2010, from the Circuit Court of Mobile County, 

Alabama, between Lewis and Thomasina Lewis. (Doc. 63 at 42 – 48). In 

particular, Lewis points to the following provision of that Judgment: “The custodial 

parent [Thomasina Lewis] shall keep the children in his [sic] care during the week 

before Christmas until 3:00 p.m. on Christmas Day. Thereafter, the non-custodial 

party [Lewis] shall have visitation for one week at Christmas from December 25, at 

3:00 p.m. until January 2 at 3:00 p.m.” (Id. at 43). He has also presented two 

affidavits dated November 17, 2014 – one from Ashley Austin (“Austin”), and one 

from Marsha Johnston (“Johnston”). Austin avers in her affidavit (id. at 38 – 39) to 

the following factual allegations:

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• Austin was Lewis’s “live-in girl friend” and was living in his Gulfport 

residence “exclusively on December 25th, through December 31st, 2010, when 

Mr. Lewis was alleged to have sexually assaulted his children.”

• Lewis went to Alabama on December 25th, 2010, “to pick up his children and 

bring them back to his said Gulfport residence, pursuant to a Divorce Court 

Order Custody/Visiting Rights schedule[], where Mr. Lewis, his father and 

[Austin] spent Christmas with the kids until after December 31st, 201 when 

Mr. Lewis took his kids back to” Alabama.

• Austin “was interviewed by Federal Agents at an Illinois McDonalds 

Resturaunt [sic] regarding this matter, whom I advised that I was at the 

residence with Mr. Lewis and the children from before December 25th, 

through well after December 31st, 2010 when Mr. Lewis was alleged to have 

assaulted the kids.” Austin “further advised the Federal Agents that the 

assaults was [sic] virtually impossible as Mr. Lewis, the Children and I were 

constantly together during this whole visit, and that I am willimg [sic] to 

testify in court to these facts.”

• It has recently come to Austin’s attention, around the time she executed the 

affidavit, that Lewis was convicted in this criminal action “for these alleged 

sexual assaults under the premises that I was not there at the Gulfport 

residence with Mr. Lewis on the Night of the alleged assaults, December, 

31st, 2010, to which I make this affidavit in correction of those facts, as I 

specifically advised the Federal Authorities.”

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• Austin is willing to testify to these fact, “as there is no way possible Mr. 

Lewis had the time to commit the said alleged assaults.”

Johnston avers in her affidavit (id. at 40 – 41) to the following factual 

allegations:

• Johnston is Austin’s mother and lived across the street from Lewis and his 

father in Gulfport.

• Johnston, Austin, and Johnston’s husband (Austin’s stepfather) made plans 

to spend December 25, 2010, with Lewis, Lewis’s father, and Lewis’s children 

and “spent several Hours of the days during Christmas.”

• Johnston confirms that Austin was Lewis’s girlfriend and lived at his 

Gulfport residence from before December 25, 2010, until after December 31, 

2010.

• After Lewis was arrested, Johnston “was interviewed by Federal Agents in 

the state of Illinois who I had advised that My daughter was infact [sic] at 

Mr. Lewis’ Gulfport residence on December 31st, 2010 which I later found out 

was the date that Mr. Lewis was supposed to have sexually assaulted his 

children.”

• Johnston is willing to testify to confirm that Austin “was constantly present 

at Mr. Lewis’ Gulfport Residence, from December 25th, 2010 until Mr. Lewis 

was arrested and taken away after December 31st, 2010.”

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II. Claims for Relief5

Lewis raises four claims for relief in his § 2255 motion, each based on the 

alleged “newly discovered evidence” in the divorce decree and/or affidavits:6

Claim 1 – Trial counsel Yelverton rendered unconstitutional ineffective 

assistance by failing “to subject the USA’s case against Lewis to a 

meaningful adversarial testing” by “induc[ing] Lewis to plead guilty to an 

offense of which Lewis is not guilty” and “fail[ing] to investigate and/or

produce exculpatory evidence.” (Doc. 65 at 4).

Claim 2 – Lewis is “factually innocent” of the charge to which he pled 

guilty because: “(a) newly discovered evidence establishes that Lewis’ 

District Court appointed attorney and the United States withheld 

evidence exculpatory to the elements of the offense for which Lewis has 

been charged; (b) Lewis’ guilty plea was involuntary due to misguidance; 

(c) the Court accepted the plea without factual basis.” (Id. at 5)

Claim 3 – The Government “withheld exculpatory evidence from their 

investigative files” “establishing Lewis was not at the scene for the 

purpose for which he was convicted” and “which established that Lewis 

did not travel in interstate for the purpose of engaging in illegal sexual 

acts with a minor.” (Id. at 7).

 5 The undersigned abides by the Eleventh Circuit’s directive to “liberally construe pro se

filings, including pro se applications for relief pursuant to § 2255.” Winthrop-Redin v. 

United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014).

6 (See Doc. 65 at 10 (“All grounds in this motion have never been presented to any federal 

court as they are based upon newly discovered facts and evidence of an exculpatory nature 

and have never been determined on their merits.”)).

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Claim 4 – The Court “does not have subject matter jurisdiction to sustain 

Lewis’ conviction for the instant offense” because “the factual innocence 

nature of the action...due to ineffective counsel and misconduct of the 

prosecutor, has never been determined.” (Id. at 8).

III. Applicable Law

A. General Standards in § 2255 Proceeding

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

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

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

2014). Specifically, § 2255 provides:

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

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

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

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

such sentence, or that the sentence was in excess of the maximum 

authorized by law, or is otherwise subject to collateral attack, may 

move the court which imposed the sentence to vacate, set aside or 

correct the sentence ... If the court finds that the judgment was 

rendered without jurisdiction, or that the sentence imposed was not 

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

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

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

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

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

sentence as may appear appropriate.

28 U.S.C. § 2255(a)-(b).

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

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

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

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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. Accordingly, a nonconstitutional error that may justify reversal on direct appeal does not generally 

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

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

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

omitted).

Under the procedural default rule, a defendant generally must advance 

an available challenge to a criminal conviction or sentence on direct 

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

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

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

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

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

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

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

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

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

available only if the petitioner establishes cause for the waiver and 

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

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

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

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

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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 

(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).

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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 

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 

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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). 

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

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

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

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

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

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

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

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

quotations omitted). A petitioner must identify specific acts or 

omissions that were not the result of reasonable professional 

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

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

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

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

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

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

performance, “a petitioner must establish that no competent counsel 

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

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

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

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

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

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

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

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

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

have been different. A reasonable probability is a probability sufficient 

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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).

C. Effect of Guilty Plea

The “ ‘concern with finality served by the limitation on collateral attack has 

special force with respect to convictions based on guilty pleas.’ ” Bousley v. United 

States, 523 U.S. 614, 621 (1998) (quoting United States v. Timmreck, 441 U.S. 780, 

784 (1979)). “A defendant who enters a plea of guilty waives all nonjurisdictional 

challenges to the constitutionality of the conviction, and only an attack on the 

voluntary and knowing nature of the plea can be sustained.” Wilson v. United 

States, 962 F.2d 996, 997 (11th Cir. 1992). See also, e.g., United States v. Brown, 

752 F.3d 1344, 1347 (11th Cir. 2014) (“ ‘A guilty plea, since it admits all the 

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

proceedings against a defendant.’ ” (quoting United States v. Fairchild, 803 F.2d 

1121, 1124 (11th Cir. 1986) (per curiam)); United States v. Saac, 632 F.3d 1203, 

1208 (11th Cir. 2011) (“ ‘Generally, entering a guilty plea waives a defendant's right 

to all non-jurisdictional challenges to a conviction.’ ” (quoting United States v. 

Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009)). Stated differently, “a voluntary and 

intelligent plea made by an accused person, who has been advised by competent 

counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508 

(1984). Therefore, when a § 2255 motion is filed collaterally challenging convictions 

obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to whether the 

underlying plea was both counseled and voluntary.” United States v. Broce, 488 

U.S. 563, 569 (1989). See also Bousley, 523 U.S. at 618 (“A plea of guilty is 

constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’ (quoting 

Brady v. United States, 397 U.S. 742, 748 (1970)). Moreover, “even the 

voluntariness and intelligence of a guilty plea can be attacked on collateral review 

only if first challenged on direct review.” Bousley, 523 U.S. at 621. Accord United 

States v. Pearl, 288 F. App'x 651, 655 (11th Cir. 2008) (per curiam) (unpublished).

“A guilty plea is open to attack on the ground that counsel did not 

provide the defendant with ‘reasonably competent advice.’ ” Cuyler v. 

Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333 

(1980) (quoting McMann[ v. Richardson], 397 U.S. [759,] 770, 90 S. Ct. 

[1441,] 1448[ (1970)]). The Supreme Court has held “that the two-part 

Strickland v. Washington test applies to challenges to guilty pleas 

based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 

52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Slicker v. Dugger, 

878 F.2d 1380, 1381 n.1 (11th Cir. 1989) (per curiam); Holmes v. 

United States, 876 F.2d 1545, 1551 (11th Cir. 1989); McCoy v. 

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Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) (per curiam)...

...

...Hill clarified the Strickland second or “prejudice” requirement in the 

context of guilty pleas: “the defendant must show that there is a 

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

pleaded guilty and would have insisted on going to trial.” 474 U.S. at 

59, 106 S. Ct. at 370; Tahamtani v. Lankford, 846 F.2d 712, 714 (11th 

Cir. 1988) (per curiam); see Long v. United States, 883 F.2d 966, 968 

n.4 (11th Cir. 1989) (per curiam); Agan v. Dugger, 835 F.2d 1337, 1340 

n.6 (11th Cir. 1987), cert. denied, 487 U.S. 1205, 108 S. Ct. 2846, 101 L. 

Ed. 2d 884 (1988); see also Holmes, 876 F.2d at 1553, Slicker v. 

Wainwright, 809 F.2d 768, 770 (11th Cir. 1987) (These cases were 

remanded to the district court to determine if accurate, rather than 

incorrect, information by the defense counsel as to the length of 

sentence would have changed the defendant's plea.); cf. Betancourt v. 

Willis, 814 F.2d 1546, 1549 (11th Cir. 1987) (This court affirmed the 

district court's granting a habeas corpus petition based upon its 

conclusion that petitioner's plea was not voluntary and that his 

counsel provided ineffective assistance because the evidence was 

“uncontroverted that petitioner was completely unaware of the 

ultimate consequences of his plea because his counsel misrepresented 

the existence of a sentence reduction agreement.”). The Hill court 

explained the prejudice requirement with specific regard to a defense 

counsel's alleged failure to investigate potentially exculpatory 

evidence:

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

resemble the inquiry engaged in by courts reviewing ineffectiveassistance challenges to convictions obtained through a trial. 

For example, where the alleged error of counsel is a failure to 

investigate or discover potentially exculpatory evidence, the 

determination whether the error “prejudiced” the defendant by 

causing him to plead guilty rather than go to trial will depend 

on the likelihood that discovery of the evidence would have led 

counsel to change his recommendation as to the plea. This 

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

whether the evidence likely would have changed the outcome of 

a trial.[7]

 7 Hill continued:

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

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

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474 U.S. at 59, 106 S. Ct. at 370; McCoy, 804 F.2d at 1198–99.

The Supreme Court has given finality to guilty pleas by precluding 

claims of constitutional deprivations occurring prior to entry of the 

plea. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 

L. Ed. 2d 235 (1973); see Tiemens v. United States, 724 F.2d 928, 929 

(11th Cir.) (per curiam) (“[A] guilty plea waives all nonjurisdictional 

defects occurring prior to the time of the plea, including violations of 

the defendant's rights to a speedy trial and due process.”), cert. denied, 

469 U.S. 837, 105 S. Ct. 134, 83 L. Ed. 2d 74 (1984). The Court allows 

only challenges to the voluntary and intelligent entry of the plea if a 

convicted defendant can prove “serious derelictions” in his counsel's 

advice regarding the plea. McMann, 397 U.S. at 774, 90 S. Ct. at 1450; 

Tollett[ v. Henderson], 411 U.S. [258,] 267, 93 S. Ct. [1602,] 1608[ 

(1973)]; see Hill, 474 U.S. at 56, 106 S. Ct. at 369 (“The longstanding 

test for determining the validity of a guilty plea is ‘whether the plea 

represents a voluntary and intelligent choice among the alternative 

courses of action open to the defendant.’ ” (quoting North Carolina v. 

Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970)). 

Without “reasonably effective assistance of counsel in connection with 

the decision to plead guilty,” a defendant cannot enter a knowing and 

voluntary plea because the plea does not represent an informed choice. 

McCoy, 804 F.2d at 1198; Scott[ v. Wainwright], 698 F.2d [427,] 429[ 

(11th Cir. 1983)]. Based upon his familiarity with the facts and law, 

defense counsel must advise the defendant. Scott, 698 F.2d at 429. 

“Counsel's advice need not be errorless, and need not involve every 

conceivable defense, no matter how peripheral to the normal focus of 

counsel's inquiry, but it must be within the realm of competence 

demanded of attorneys representing criminal defendants.” Id.

(emphasis added); see McMann, 397 U.S. at 771, 90 S. Ct. at 1449; 

Long, 883 F.2d at 969.

 

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

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

Meyer, 742 F.2d 371, 375 (CA7 1984) (“It is inconceivable to us ... that [the 

defendant] would have gone to trial on a defense of intoxication, or that if he 

had done so he either would have been acquitted or, if convicted, would 

nevertheless have been given a shorter sentence than he actually received”). 

As []explained in Strickland v. Washington, []these predictions of the outcome 

at a possible trial, where necessary, should be made objectively, without 

regard for the “idiosyncrasies of the particular decisionmaker.” Id., 466 U.S., 

at 695, 104 S. Ct., at 2068.

474 U.S. at 59-60.

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17

The Supreme Court has recognized that the decision to plead guilty 

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

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

McMann, 397 U.S. at 769–70, 90 S. Ct. at 1448. “[C]ounsel owes a 

lesser duty to a client who pleads guilty than to one who decides to go 

to trial, and in the former case counsel need only provide his client 

with an understanding of the law in relation to the facts, so that the 

accused may make an informed and conscious choice between 

accepting the prosecution's offer and going to trial.” Wofford v. 

Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (per curiam); 

Downs–Morgan v. United States, 765 F.2d 1534, 1539 (11th Cir. 1985). 

An attorney's responsibility is to investigate and to evaluate his 

client's options in the course of the subject legal proceedings and then 

to advise the client as to the merits of each. Tafero, 796 F.2d at 1320; 

Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986), cert. 

denied, 481 U.S. 1042, 107 S. Ct. 1986, 95 L. Ed. 2d 825 (1987)...

Stano v. Dugger, 921 F.2d 1125, 1149-51 (11th Cir. 1991) (en banc) (footnote 

omitted). Accord, e.g., Jones v. White, 992 F.2d 1548, 1557 (11th Cir. 1993) (“The 

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

challenges to guilty pleas based on ineffective assistance of counsel.’ Hill, 474 U.S. 

at 58, 106 S. Ct. at 370. Under the Strickland test, Garrett initially must show ‘that 

counsel's representation fell below an objective standard of reasonableness.’ 

Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 

(1984). While it need not be errorless, counsel's advice ‘must be within the realm of 

competence demanded of attorneys representing criminal defendants.’ Stano, 921 

F.2d at 1151. Providing meaningful advice on the options available to a defendant 

obligates counsel ‘to make reasonable investigations or to make a reasonable 

decision that makes particular investigations unnecessary.’ Strickland, 466 U.S. at 

691, 104 S. Ct. at 2066. Hill modified the second part of the Strickland test in the 

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18

context of a guilty plea. Garrett ‘must show that there is a reasonable probability 

that, but for counsel's errors, he would not have pleaded guilty and would have 

insisted on going to trial.’ 474 U.S. at 59, 106 S. Ct. at 370.”). In claiming prejudice 

under Strickland, “[a] movant must allege facts that would prove that a decision not 

to plead guilty ‘would have been rational under the circumstances.’ ” Hernandez v. 

United States, 778 F.3d 1230, 1234 (11th Cir. 2015) (quoting Padilla v. Kentucky, 

559 U.S. 356, 372 (2010)).

[P]lea bargaining retains its benefits of certainty and efficiency “only if 

dispositions by guilty plea are accorded a great measure of finality.” 

Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 

(1977); see id. (“To allow indiscriminate hearings in federal 

postconviction proceedings ... for federal prisoners under 28 U.S.C. § 

2255 ... would eliminate the chief virtues of the plea system—speed, 

economy, and finality.”). While § 2255 exists “to safeguard a person's 

freedom from detention in violation of constitutional guarantees,” ... 

“[m]ore often than not a prisoner has everything to gain and nothing to 

lose from filing a collateral attack upon his guilty plea.” Id. at 71–72, 

97 S. Ct. 1621. As a result, “the representations of the defendant, his 

lawyer, and the prosecutor at [a plea] hearing, as well as any findings 

made by the judge accepting the plea, constitute a formidable barrier 

in any subsequent collateral proceedings.” Id. at 73–74, 97 S. Ct. 1621; 

see id. at 80 n. 19, 97 S. Ct. 1621 (explaining that if the record reflects 

the procedures of plea negotiation and includes a verbatim transcript 

of the plea colloquy, a petitioner challenging his plea will be entitled to 

an evidentiary hearing “only in the most extraordinary 

circumstances”). “The subsequent presentation of conclusory 

allegations unsupported by specifics is subject to summary dismissal, 

as are contentions that in the face of the record are wholly incredible.” 

Id. at 74, 97 S. Ct. 1621.

Winthrop-Redin, 767 F.3d at 1216. 

In sum, because “ ‘[s]olemn declarations in open court carry a strong 

presumption of verity[,]’ Blackledge, 431 U.S. at 74, 97 S. Ct. 1621[,]” when a 

defendant “ma[k]e[s] statements under oath at a plea colloquy, ‘he bears a heavy 

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burden to show his statements were false.’ United States v. Rogers, 848 F.2d 166, 

168 (11th Cir. 1988) (per curiam).” Id. at 1217 (some alterations added). Accord, 

e.g., United States v. Gonzalez–Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987) 

(“While Rule 11 is not insurmountable, there is a strong presumption that the 

statements made during the colloquy are true.”); United States v. Cardenas, 230 F. 

App'x 933, 935 (11th Cir. 2007) (per curiam) (unpublished) (“We apply a ‘strong 

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

true, United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994); therefore, ‘when a 

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

to show his statements were false.’ United States v. Rogers, 848 F.2d 166, 168 (11th 

Cir. 1988).”). Nothing in the record shows that Cardenas has satisfied his burden of 

showing that his sworn statements made during the plea colloquy-including that no 

one had predicted what sentence he would receive-were false; and we reject his 

claim that his guilty plea was involuntary.”).

IV. Analysis

A. Ineffective Assistance of Counsel (Claim 1)

As to Claim 1, Lewis asserts that Yelverton “failed to investigate and/or 

produce exculpatory evidence in Lewis’ favor” and instead “induced Lewis to plead 

Guilty to the underlying offense with full knowledge that evidence will exist 

exposing Lewis’ innocence to the charged conduct...” (Doc. 63 at 24 – 25). Lewis 

claims he advised Yelverton that Austin “was at the residence with Lewis and his 

father on December 31, 2010, and []the reasons he went to get his children was to 

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exercise his Parental Visiting Rights, pursuant to Court order in Mobile County, 

Alabama, and []that the alleged sexual assaults never happened.” (Id. at 26). To 

this, Yelverton purportedly advised Lewis that Austin “was no longer at the 

residence, and could not be located, thus []a Jury wouldn’t believe him due the age 

and number of the children, and []thus, whether Lewis actually did it or not would 

be irrelevant.” (Id. at 26 – 27).

According to Lewis, the November 22, 2010 Judgment of Divorce Lewis he 

has presented – in particular, the provision regarding Lewis’s Christmastime 

visitation rights – would have “defeat[ed] the crucial 3rd element of” his crime, as it 

“would have shown that the purpose of Lewis’ trip to Alabama to Mississippi was 

not to indulge in sexual acts with a minor, but to exercise his visiting rights, and 

eliminating the 1st and 2nd prongs of the underlying statute.” (Doc. 63 at 28). 

Instead, “Yelverton induced Lewis to believe that the testimonies of the children 

were enough to cause a conviction regardless of the truth. Thus, Yelverton took 

Lewis before this Court believing that the allegations of sexual assaults were the 

only thing that mattered under the Federal Criminal Codes, when in reality, the 

[purpose] of the interstate activity was the key element...” (Id. at 30 – 31 (brackets 

in original)). Put another way, Lewis claims that Yelverton misrepresented the 

significance of the “interstate” element of the offense, causing Lewis to believe when 

he entered his plea that “the Interstate element of the offense [was] the alleged [sex 

act itself], and not [intent]; nor [purpose], as Mr. Lewis understood the language of 

the statute, and argued with Counsel.” (Doc. 70 at 6 (some brackets in original)). 

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In sum, Lewis claims that Yelverton failed to recognize that the evidence, in 

particular the Christmas visitation provision in the Judgment of Divorce, would not 

have supported a determination beyond a reasonable doubt that “the primary 

purpose of that trip was to engage in illegal sex acts with the victims.” (Id. at 70).

Liberally construing these allegations, the undersigned finds that Lewis is 

asserting Yelverton was ineffective in two ways:

1. Yelverton erroneously advised Lewis that the Government would not have to 

prove at trial all elements of an offense under § 2423(a) – specifically, the 

element that Lewis had transported the minor victims “in interstate or 

foreign commerce ... with intent” to sexually assault them – and that the 

testimony of the minor victims regarding the abuse was all that was needed 

for a conviction; and

2. Yelverton failed in his duty to investigate by not obtaining a copy of the 

November 22, 2010 Judgment of Divorce, which would have shown that 

Lewis was not transporting his minor children in interstate commerce for the 

purpose of sexually assaulting them, but was only exercising his 

Christmastime visitation rights.8

The underlying premise of both these claims of ineffective assistance is 

Lewis’s belief that the Government was required under § 2423(a) to prove that 

Lewis had the intent to sexually assault his minor daughters at the time he 

 8 Lewis does not argue that Yelverton was ineffective for failing to locate and interview

Austin and/or Johnston. Indeed, Lewis acknowledges in his reply brief that Yelverton’s 

assertion that he could not locate Austin and Johnston “would be feasible since the 

government investigators [FBI] found them in Illinois and interviewed them...” (Doc. 70 at 

9).

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transported them across state lines from Alabama to Mississippi. This belief is 

incorrect. 

In explaining this conclusion, some statutory context and comparison is 

needed. Title 18 U.S.C. § 2423(a), the statutory provision under which Lewis was 

charged and convicted, 

is one of four closely related provisions of the federal criminal code. 

The four are as follows:

18 U.S.C. § 2421: Whoever knowingly transports any individual 

in interstate or foreign commerce, or in any Territory or 

Possession of the United States, with intent that such individual 

engage in prostitution, or in any sexual activity for which any 

person can be charged with a criminal offense, or attempts to do 

so, shall be fined under this title or imprisoned not more than 10 

years, or both.

18 U.S.C. § 2423(a): Transportation with intent to engage 

in criminal sexual activity.—A person who knowingly 

transports an individual who has not attained the age of 18 

years in interstate or foreign commerce, or in any 

commonwealth, territory or possession of the United States, 

with intent that the individual engage in prostitution, or in any 

sexual activity for which any person can be charged with a 

criminal offense, shall be fined under this title and imprisoned 

not less than 10 years or for life.

18 U.S.C. § 2423(b): Travel with intent to engage in illicit 

sexual conduct.—A person who travels in interstate commerce 

or travels into the United States, or a United States citizen or 

an alien admitted for permanent residence in the United States 

who travels in foreign commerce, for the purpose of engaging in 

any illicit sexual conduct with another person shall be fined 

under this title or imprisoned not more than 30 years, or both.

18 U.S.C. § 2423(c): Engaging in illicit sexual conduct in 

foreign places.—Any United States citizen or alien admitted 

for permanent residence who travels in foreign commerce, and 

engages in any illicit sexual conduct with another person shall 

be fined under this title or imprisoned not more than 30 years, 

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or both.

Section 2421 is the original Mann Act, as amended in minor respects. 

Section 2423(a), intended to protect minors from sexual predation, 

mirrors the Mann Act but imposes more severe penalties. Section 

2423(b) ... was added to expand the protection of minors still further; it 

punishes travel in interstate commerce even if no minor is transported, 

if the purpose of the travel is sex with a minor. (Prosecutors frequently 

use this section to prosecute persons who cross state lines to 

rendezvous with minors whom they meet in online chat rooms. See, 

e.g., United States v. Buttrick, 432 F.3d 373 (1st Cir. 2005).) Section 

2423(c) was added to punish persons who travel in foreign commerce 

and have sex with a minor in the course of the trip regardless of what 

the defendant intended when he set out on it.

United States v. McGuire, 627 F.3d 622, 623-24 (7th Cir. 2010)

The Court of Appeals for the Eleventh Circuit has noted that 

the plain language of section 2423(a) requires only that the defendant 

knowingly transport a minor with the “intent” of engaging in criminal 

sexual activity. It does not require evidence of any “purpose” or 

“motive” of the interstate travel. See United States v. Cole, 262 

F.3d 704, 709 (8th Cir. 2001) (affirming conviction under section 

2423(a) after concluding that one of the defendant's purposes for 

transporting the minor was illegal sexual activity, but noting that the 

plain language of section 2423(a) does not require any such showing); 

United States v. Ellis, 935 F.2d 385, 391-92 (1st Cir. 1991) (same). 

Thus, []section 2423(a) merely requires that the defendant have 

intended to engage in criminal sexual activity with a minor...

United States v. Hoschouer, 224 F. App'x 923, 926 (11th Cir. 2007) (per curiam) 

(unpublished) (emphasis added) (holding that the district court did not err in 

declining to instruct the jury that, under § 2423(a), “the sexual activity must have 

been a significant motivating purpose for transporting or traveling with [the minor 

victim], not just one of the purposes”).9 10

 9 See also United States v. Cole, 262 F.3d 704, 709 (8th Cir. 2001) (“Arguably, when 

Congress amended the Mann Act in 1986 to remove the commercial nexus and to remove 

the ‘purpose’ language, replacing it with the ‘intent that such individual engage ... in any 

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The factual resume accompanying Lewis’s plea agreement, which both Lewis 

and Yelverton “agreed to and signed” (Doc. 22 at 13), advised that, to prove a 

violation of § 2423(a), the Government must prove:

First: The defendant knowingly transported an individual in 

interstate commerce; and

Second: at the time of the transportation, the individual was less than 

18 years old; and

Third: at the time of the transportation, Defendant intended that the 

individual would engage in prostitution or other unlawful sexual 

activity.

(Doc. 22 at 10).11 The factual resume cites “Eleventh Circuit Pattern Jury 

Instruction 93.1 (2010)” as authority for these elements (see id. n.1),12 and indeed 

 

[illegal] sexual activity,’ Pub. L. No. 99–628, Congress lessened the prosecution's burden, 

such that it need not prove that illegal sexual activity was a purpose of the interstate 

transportation at all. See United States v. Ellis, 935 F.2d 385, 391–92 (1st Cir.) (discussing 

the change in the language but declining to decide the impact of the change as the evidence 

supported the conviction even under the more stringent standard), cert. denied, 502 U.S. 

869, 112 S. Ct. 201, 116 L. Ed. 2d 160 (1991). Like the court in Ellis, we leave for another 

day the effect of the change in the statutory language because the evidence establishes that 

illegal sexual activity was at least one of Cole's purposes in transporting M.S. in interstate 

commerce.”).

10 Unlike § 2423(a), § 2423(b) does have a “purpose of travel” element. See Hoschouer, 224 

F. App'x at 926-27 (discussing “the relationship between the purpose and travel elements 

under” § 2423(b)), which Lewis has attempted to apply to § 2423(a). This misunderstanding 

is likely due in part to the tendency of relevant case law to intermingle and conflate § 

2423(a)’s “intent” element with § 2423(b)’s “purpose of travel” element, see infra.

11 The Government also presented these as the elements of the crime at Lewis’s guilty plea 

hearing. (Doc. 59 at 6).

12 “[T]his Circuit's pattern [jury] instructions, while a valuable resource, are not binding 

law.” United States v. Carter, 776 F.3d 1309, 1324 (11th Cir. 2015) (citing United States v. 

Dohan, 508 F.3d 989, 994 (11th Cir. 2007)).

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they do mirror the statement of the elements in that instruction for an offense 

under § 2423(a).13 14

The Eleventh Circuit has held in Mann Act cases “that dual purposes are 

sufficient for a conviction, and we ‘need not concern ourselves’ with whether the 

illegal purpose was dominant over other purposes. [Forrest v. United States, 363 

F.2d 348,] 352[ (5th Cir. 1966)15]. Our model Mann Act jury instructions reflect this 

holding. See Eleventh Circuit Model Jury Instruction 79.2, 92.1, 93.1, 93.2, 93.4 

(2010).” United States v. Lebowitz, 676 F.3d 1000, 1014-15 (11th Cir. 2012) (per 

curiam) (emphasis added).16 See also United States v. Schumaker, 479 F. App'x 878, 

 13 See www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatternJuryInstruction.pdf, 

pp. 531-33 (last visited July 22, 2015).

14 Pattern Instruction 93.1 further provides that “[t]he Government must prove beyond a 

reasonable doubt that a person under 18 years old was knowingly transported across state 

lines by the Defendant and that the Defendant intended at the time for the person under 18 

to engage in prostitution or other illegal sexual activity.” Additionally, the “Annotations 

and Comments” to this instruction provide: “The defendant’s dominant purpose in 

transporting the child in interstate or foreign commerce need not be to engage in a sexual 

act with a child. However, to meet the intent requirement the Government must prove that 

one of the defendant’s motives was to engage in a sexual act with a child. See United States 

v. Hoschouer, 224 Fed. Appx. 923, 925 (2007) (finding that intent requirement of § 2423(a) 

was met when defendant brought child on interstate trip and evidence supported the 

conclusion that he did so to facilitate his sexual relationship with her).”

15 “In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), [the 

Eleventh Circuit] adopted as binding precedent all decisions of the former Fifth Circuit 

handed down prior to close of business on September 30, 1981.” United States v. Lebowitz, 

676 F.3d 1000, 1011 n.3 (11th Cir. 2012) (per curiam)

16 The defendant in Lebowitz was convicted, inter alia, of producing child pornography in 

violation of 18 U.S.C. § 2251(a) and challenged the district court’s denial of his requested 

jury instruction that would have required the jury to find beyond a reasonable doubt that 

“the making of the visual depiction of sexually explicit conduct was a dominant motive for 

Defendant's actions toward” the minor. 676 F.3d at 1014. In support, Lebowitz cited 

Forrest and Mortensen v. United States, 322 U.S. 369 (1944). The court declined to apply 

these two “Mann Act cases involving crimes other than the production of child 

pornography” but alternatively found that, “[e]ven if Mann Act precedent applies to 18 

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884 (11th Cir. 2012) (per curiam) (unpublished) (“It is unlawful under 18 U.S.C. § 

2241(c) to cross a State line with the intent to engage in a sexual act with a person 

under the age of 12. See 18 U.S.C. § 2241(c). The former Fifth Circuit upheld a 

conviction under the Mann Act, 18 U.S.C. § 2421, based on a showing that ‘one 

purpose’ of the defendant's trip was illicit; thus, the court rejected his contention 

that his immoral purpose was ‘merely incidental’ to his travel. Forrest v. United 

States, 363 F.2d 348, 349–50 (5th Cir. 1966). []We conclude from the record that the 

district court did not err by instructing the jury to disregard the language 

concerning ‘merely incidental’ purposes for travel when it said to focus, instead, on 

whether one of the purposes of Schumaker's travel was to engage in a sexual act 

with an individual under 12 years of age, because the two ideas describe the same 

notion—whether a purpose for the trip was illicit.”); Hoschouer, 224 F. App'x at 927 

(“In Forrest v. United States, 363 F.2d 348, 349 (5th Cir. 1966), the former Fifth 

Circuit stated that, to convict under the Mann Act, the Government need not prove 

that the illicit purpose was the sole purpose of the transportation. Instead, it was 

sufficient that the illicit purpose was ‘one of the efficient and compelling purposes in 

the mind of the accused.’ Id. at 350. Rejecting the defendant's contention that his 

immoral purpose was ‘merely incidental’ and thus insufficient to support the 

conviction, the court affirmed the trial court's conclusion that ‘one purpose’ of the 

trip was for prostitution. Id. at 350-52.” (footnote omitted)); United States v. 

 

U.S.C. § 2251(a), refusal to give the requested instruction would not have been error” 

because “dual purposes are sufficient for a conviction.” Lebowitz, 676 F.3d at 1014. Thus, 

Lebowitz’s “requested ‘dominant motive’ language was substantively incorrect, and the 

district court correctly refused to give the instruction.” Id. at 1015.

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Donaldson, 577 F. App'x 63, 66 (2d Cir.) (“The fact that [the defendant] also had a 

business purpose in making the trips did not preclude a finding of criminal intent[ 

under § 2423(a)] to sexually assault his minor passengers. See United States v. 

Vargas–Cordon, 733 F.3d 366, 377 (2d Cir. 2013) (‘Section 2423(a) is concerned not 

with why a defendant travels, but rather with the question why he transports a 

minor.’); id. at 375 (‘[T]he contemplated unlawful sexual activity need not be the 

defendant's sole purpose for transporting a minor in interstate or foreign 

commerce.’).”), cert. denied, 135 S. Ct. 173 (2014); United States v. Bonty, 383 F.3d 

575, 578 (7th Cir. 2004) (“[A] defendant may have more than one purpose in the 

interstate transportation of a minor. United States v. Vang, 128 F.3d 1065, 1069–72 

(7th Cir. 1997) ... The government need only prove that a ‘significant’ or ‘compelling’

purpose of the trip—not the dominant purpose—was to commit aggravated assault” 

to sustain a conviction under § 2423(a)); United States v. Goodwin, 719 F.3d 857, 

862 (8th Cir. 2013) (“ ‘The illicit behavior must be “one of the purposes motivating ...

the interstate transportation,” but need not be the dominant purpose.’ United 

States v. Cole, 262 F.3d 704, 709 (8th Cir. 2001) (alteration in original), quoting 

United States v. Vang, 128 F.3d 1065, 1071 (7th Cir. 1997) (interpreting Mortensen 

v. United States, 322 U.S. 369, 376, 64 S. Ct. 1037, 88 L. Ed. 1331 (1944)). ‘The 

sexual activity just may not be merely incidental to the trip.’ United States v. 

Hoffman, 626 F.3d 993, 996 (8th Cir. 2010), citing Cole, 262 F.3d at 709.”), cert. 

denied, 134 S. Ct. 944 (2014); United States v. Tavares, 705 F.3d 4, 17 (1st Cir.

2013) (“In order to convict Mr. Tavares of transporting B.B., the Government was 

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required to prove, among other things, that he had the ‘intent that [she] engage in 

prostitution.’ 18 U.S.C. § 2423(a). This element requires proof that ‘criminal sexual 

activity [was] one of the several motives or purposes ... not a mere incident of the 

trip or trips, but instead was at least one of the defendant's motivations for taking 

the trip in the first place.’ United States v. Ellis, 935 F.2d 385, 390 (1st Cir. 1991) 

(alteration in original) (internal quotation marks omitted).”).17

The Judgment of Divorce may be considered evidence that one purpose of 

Lewis’s interstate travel was to exercise his Christmastime visitation rights. 

However, so long as evidence showed that Lewis intended to sexually assault his 

minor children at some point during the Christmastime trip from Alabama to 

Mississippi and back, a conviction under § 2423(a) would have been sustained. See

Cole, 262 F.3d at 708-09 (8th Cir.) (“[T]o be convicted under § 2423(a), Cole must 

have transported M.S., age 15 at the time, with the intent to engage in sexual 

activity with her. Cole's twisted reading of the statute-that he must have intended 

to go to Florida to violate the Florida statute before he began the interstate journeyis not supported by the language of the statute or the case law construing it. 

Whether Cole intended to have sex with M.S. in Florida when he transported her 

out of Arkansas is irrelevant to his conviction. His illicit intent must have been 

 17 Lewis has cited to United States v. Causey, 568 F. App'x 269 (5th Cir. 2014) (per curiam) 

(unpublished), which states that “18 U.S.C. §§ 2422(a) and 2423(a), (b), and (e), did not 

require proof of a sexual act but did require proof that engaging in a sexual act was the 

primary purpose of transporting the victim.” 568 F. App’x at 271 (emphasis added). 

Causey cites no authority for this assertion, and this broad characterization of multiple 

statutory provisions is not a holding in the case, but rather was provided as background in 

Causey’s statement of “facts and procedural history.” Regardless, Causey’s characterization 

of § 2423(a) is inconsistent with the great weight of other authority, including that of the 

Eleventh Circuit.

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formed only ‘ “before the conclusion of the interstate state [sic] journey.” ’ Reamer v. 

United States, 318 F.2d 43, 49 (8th Cir.) (quoting Mortensen v. United States, 322 

U.S. 369, 374, 64 S. Ct. 1037, 88 L. Ed. 1331 (1944)), cert. denied, 375 U.S. 869, 84 

S. Ct. 129 (1963).”); United States v. Vernon, 723 F.3d 1234, 1252 (11th Cir. 2013)

(“The prosecution need not rebut all reasonable hypotheses other than guilt and the 

jury is free to choose between or among the conclusions to be drawn from the 

evidence presented at trial.” (quotations omitted)). Lewis admitted in his factual 

resume that he had indeed sexually abused both daughters while in Gulfport on the 

Christmastime trip and that such abuse had occurred as early as February or 

March of 2009. (Doc. 22 at 12). Hearing such evidence, a reasonable jury could 

infer that Lewis intended to sexually assault his minor children on the interstate 

Christmastime trip. Cf. Hoschouer, 224 F. App'x at 926 (“Defendant []contends that 

the evidence is insufficient to show that the sexual activity with Kristina was an 

efficient purpose of the trip, arguing that the purpose of the trip was to flee 

prosecution in Texas. We disagree. The evidence showed that Defendant and 

Kristina had sexual intercourse almost every day. The evidence also showed that 

Defendant refused to allow Kristina to stay behind when he announced his 

intention to leave Texas. And, Kristina testified that Defendant would have had sex 

with her had they stayed in Georgia long enough. []Based on this evidence, the jury 

could reasonably infer both that Defendant intended to have sex with Kristina 

before the conclusion of their trip and that one of the motivating purposes of 

requiring Kristina to accompany him was to facilitate their sexual relationship.” 

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(affirming convictions under §§ 2423(a) and (b)); Donaldson, 577 F. App'x at 66 (2d 

Cir.) (“The three victims' testimony that Donaldson regularly sexually assaulted 

them on various interstate trucking trips easily supported a finding that he engaged 

in the charged transportations with the same culpable intent.”); McGuire, 627 F.3d 

at 624 (“It is apparent that if, as the jury found, the defendant had molested 

Dominick on their travels, he violated sections 2421, 2423(a), and 2423(c). 

E.g., United States v. Bonty, 383 F.3d 575, 578 (7th Cir. 2004); United States v. 

Snow, 507 F.2d 22, 23 (7th Cir. 1974); United States v. Hitt, 473 F.3d 146, 150 (5th 

Cir. 2006). But inexplicably the government charged the defendant only with 

violating section 2423(b), which requires that the travel be for the purpose of 

engaging in illegal sexual activity.” (boldfaced emphasis added)).

Given this abundant authority, Lewis has not shown that Yelverton failed to 

exercise “reasonable professional judgment” in allegedly advising that the children’s 

testimony regarding their abuse would be enough to satisfy all elements for a 

conviction under § 2423(a), including the “intent,” and in failing to obtain a copy of 

Lewis’s Judgment of Divorce. Thus, he has failed to show that Yelverton rendered 

ineffective assistance as to either of these claims. Given that the children would 

have been able to testify both to sexual abuse occurring during the Christmastime 

trip to Gulfport as well as prior sexual abuse, which Lewis admitted the 

Government could prove in his factual resume, Yelverton’s alleged advice that their 

testimony alone could establish Lewis’s intent was likely correct, and was 

reasonable. Likewise, while the Judgment of Divorce would have been probative of 

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Lewis’s intent/purpose in making the Gulfport trip, the great weight of authority is 

that a conviction under § 2423(a) can stand even if there is evidence of dual 

purposes/intent in the interstate travel. Accordingly, to the extent Yelverton was 

aware of the Christmastime visitation provision in the Judgment of Divorce, he 

would not have acted unreasonably in believing that it would have been of little 

value at trial.

As to Lewis’s claim that Yelverton incorrectly advised him that the 

Government would not have to prove § 2423(a)’s intent element at trial, even 

assuming this allegation to be true, Lewis has failed to show that he was prejudiced 

by any such error. Lewis’s written plea agreement expressly advised him that the 

Government “has the burden of proving each of the legal elements of the criminal 

charge beyond a reasonable doubt” (Doc. 22 at 2, ¶ 7), and the accompanying factual 

resume advised him of those elements, see supra. Lewis signed both documents, 

thereby expressly representing that he had “read this Plea Agreement and carefully 

reviewed every part of it with” Yelverton and that he understood the elements of 

the charge. (See id. at 9 – 10, 13). At his guilty plea hearing, Lewis affirmed in 

sworn testimony that he had read the plea agreement and that nobody had made 

any promises outside of the agreement. (See Doc. 59 at 4). Lewis has offered no 

explanation why these representations should now be deemed false. Considering 

that the written plea agreement correctly advised Lewis of the Government’s 

burden to prove all elements of the offense at trial, and considering that Lewis, 

having been so advised, proceeded to plead guilty anyway, Lewis’s allegations do 

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not show that, but for Yelverton’s advice regarding the Government’s burden, he 

would not have pled guilty and would have insisted on going to trial. Hill, 474 U.S. 

at 59.18

The record also affirmatively contradicts Lewis’s claim that his decision to 

plead guilty was based on any of Yelverton’s alleged erroneous advice. Lewis’s 

presentence investigation report (to which Lewis filed no objections)19 states: “[A] 

statement provided by the defendant’s attorney indicates that Lewis verbalized his 

remorse for having committed the offense, and expressed a desire to plead guilty in 

 18 Lewis makes passing reference to United States v. Cronic, 466 U.S. 648 (1984). The 

Eleventh Circuit has explained that case as follows:

A petitioner asserting a claim of ineffective assistance of counsel ordinarily must 

satisfy the requirements of Strickland ... In Cronic, however, the Supreme Court 

identified three exceptions to the actual prejudice requirement—three 

exceptional circumstances “so likely to prejudice the accused that the cost of 

litigating their effect in a particular case is unjustified.” 466 U.S. at 658, 104 S. 

Ct. at 2046.

Prejudice may be presumed under Cronic where, and only where: (1) there is a 

“complete denial of counsel” at a “critical stage” of the trial, (2) “counsel entirely

fails to subject the prosecution's case to meaningful adversarial testing,” or (3) 

under the “circumstances the likelihood that counsel could have performed as an 

effective adversary was so remote as to have made the trial inherently unfair.” 

Id. at 659–61, 104 S. Ct. at 2047–48 (emphasis added); see also Bell v. Cone, 535 

U.S. 685, 695–96, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914 (2002) (discussing the 

three scenarios in which Cronic applies). As we have held, in an en banc decision, 

Cronic's presumption of prejudice “applies to only a very narrow spectrum of 

cases where the circumstances leading to counsel's ineffectiveness are so 

egregious that the defendant was in effect denied any meaningful assistance at 

all.” Stano v. Dugger, 921 F.2d 1125, 1153 (11th Cir.1991) (en banc).

Castillo v. Florida, Sec'y of DOC, 722 F.3d 1281, 1286 (11th Cir. 2013), cert. denied, Castillo 

v. Crews, 134 S. Ct. 1927 (2014).

Lewis has alleged none of the “exceptional circumstances” that would justify 

application of Cronic’s presumption of prejudice in this matter.

19 See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.2005) (failure to raise 

objections to matters contained in the PSI constitutes an admission of these facts).

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order to spare his children from having to testify at trial.” (Doc. 27 at 6, ¶ 14).20 

Lewis confirms this sentiment in his reply brief, admitting that, “with his 

undefended innocence in mind, and to protect his children from further badgering of 

interviewers, as well as Mr. Lewis’ refusal to allow himself and his children to be 

tormented with false allegations before a Jury by his children over a custody battle 

the USA is well aware of.” (Doc. 70 at 11). Thus, the record indicates that Lewis’s 

concern for his children, rather than any alleged erroneous advice from his counsel, 

was his primary motivation to plead guilty.

For these reasons, Lewis is due no relief as to Claim 1.

B. Brady Violation (Claim 3)

Claim 3 alleges that the Government, in violation of Brady v. Maryland, 373 

U.S. 83 (1963),21 withheld exculpatory information, namely:

1. information purportedly obtained by federal agents from interviewing Austin 

and Johnston – evidence which, if Austin and Johnston’s affidavits are to be 

believed, would have refuted the Government’s assertion that Austin was 

 20 Counsel for the Government also alluded to this at the sentencing hearing, stating: “But 

realistically, a plea in this case avoided the necessity of the victims having to come in and 

testify and go through a trial. That's the reason for the low-end recommendation, and that's 

it. Otherwise, our recommendation would have been something much different.” (Doc. 54 at 

3).

21 “Brady requires the prosecutor to turn over to the defense evidence that is favorable to 

the accused, even though it is not subject to discovery under [Federal ]Rule[ of Criminal 

Procedure] 16(a), since, eventually, such evidence may undermine the confidence in the 

outcome of the trial.” United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003) 

(citation and quotations omitted).

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absent from Lewis’s Gulfport residence on December 31, 2010, the day Lewis 

is alleged to have committed the sexual assaults at issue; and

2. “statements from investigative files as well as Mobile County Human 

Resources [H.R.] files where informations [sic] were known to the USA that 

(i) Lewis’ purpose for the [T]rip, was to exercise his visiting rights, and (ii) 

that the H.R. files reflect an extensive custody battle between Mr. and Mrs. 

Lewis, which extends beyond ... into Florida litigations.” (Doc. 63 at 35).

The Eleventh Circuit has not yet addressed whether a Brady claim is waived 

by a valid guilty plea, and courts are split on the subject.22 However, because Lewis 

did not raise the claim on direct appeal, it is procedurally defaulted unless he can 

show “either cause and actual prejudice or that he is actually innocent.” Bousley, 

523 U.S. at 622 (citations and quotations omitted). Lewis has argued both.23

 22 Compare United States v. Matthews, 168 F.3d 1234, 1242 (11th Cir.) (“We do not need to 

decide today ... whether a guilty plea waives a defendant's claim under Brady, or—

assuming that a Brady claim is not waived by a guilty plea—whether the Brady material 

must be known to the prosecution before the plea or merely before sentencing.”), opinion 

amended on other grounds on denial of reh'g, United States v. Moore, 181 F.3d 1205 (11th 

Cir. 1999), and Hill v. West, 599 F. Supp. 2d 371, 388 n.3 (W.D.N.Y. 2009) (noting a split in 

authority whether Brady claim is foreclosed by a valid guilty plea), with United States v. 

Ellsbury, 528 F. App'x 856, 858 (10th Cir. 2013) (unpublished) (“The prosecution's failure to 

disclose information required under the constitutional principles announced in Brady v. 

Maryland can sometimes ‘render a defendant's plea involuntary.’ United States v. Wright,

43 F.3d 491, 496 (10th Cir. 1994).”).

23 Lewis also asserts that the withheld material violated the Jenks Act, 18 U.S.C. § 3500. 

Not only is Lewis’s Jenks claim, like his Brady claim, procedurally defaulted, it is without 

merit. The Jenks Act never came into play in Lewis’s criminal case, since it only “mandates 

that a statement by a prospective prosecution witness to an investigative agent or the 

grand jury must be provided to the defense after the witness has testified on direct 

examination.” Jordan, 316 F.3d at 1251 (emphasis added). Here, because Lewis pled 

guilty, there was no trial and thus no direct examination of any witness. While a 

“prosecutor may turn [Jencks material] over before the witness is to testify” – “[i]ndeed, it is 

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The “cause and prejudice” “standard is ‘a significantly higher hurdle than 

would exist on direct appeal.’ ” Brown v. United States, 720 F.3d 1316, 1333 (11th 

Cir. 2013) (quoting Frady, 456 U.S. at 166). “ ‘Actual prejudice means more than 

just the possibility of prejudice; it requires that the error worked to [the petitioner's] 

actual and substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions.’ ” Fordham v. United States, 706 F.3d 1345, 1350 (11th 

Cir. 2013) (quoting Ward v. Hall, 592 F.3d 1144, 1179 (11th Cir. 2010) (alteration 

and quotation marks omitted)).24

“There are three components of a true Brady violation: The evidence at issue 

must be favorable to the accused, either because it is exculpatory, or because it is 

impeaching; that evidence must have been suppressed by the State, either willfully 

or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 

263, 281-82 (1999). “ ‘[C]ause and prejudice’ ... ‘parallel two of the three 

components of the alleged Brady violation itself.’ Corresponding to the second 

Brady component (evidence suppressed by the State), a petitioner shows ‘cause’

when the reason for his failure to develop facts [on direct appeal ]was the State's 

suppression of the relevant evidence; coincident with the third Brady component 

(prejudice), prejudice within the compass of the ‘cause and prejudice’ requirement 

 

customary in many jurisdictions for the government to produce Jencks materials prior to 

trial” – the Government is not required to do so. Id. at 1252 n.78.

24 “ ‘Constitutionally ineffective assistance of counsel can constitute cause’ under Frady” to 

excuse such a procedural default. Brown, 720 F.3d at 1333 (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)). As explained above, Lewis has not demonstrated a meritorious claim of 

ineffective assistance of counsel.

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exists when the suppressed evidence is ‘material’ for Brady purposes.” Banks v. 

Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler, 527 U.S. at 282 (internal 

citation omitted)). See also Brown v. United States, No. 3:02 CR 14(HL), 2006 WL 

1582421, at *2 (M.D. Ga. June 5, 2006) (“Normally, a petitioner is required to make 

this showing before a court will address the merits of the issue in question; 

however, here the components necessary to allege a Brady violation already include 

a ‘cause’ and ‘prejudice’ requirement. See Banks v. Dretke, 540 U.S. 668, 691 124 S.

Ct. 1256, 1272 (2004). Therefore, if Petitioner can succeed in establishing a Brady

violation, Petitioner will also automatically establish the ‘cause’ and ‘prejudice’

requirements necessary for overcoming the failure to assert this claim on direct 

appeal. Id.”); Johnson v. United States, 759 F. Supp. 2d 534, 539 (D. Del. 2011)

(“When ... the court is presented with procedurally defaulted Brady claims, a [§ 

2255 ]movant demonstrates prejudice by satisfying the third component of the 

Brady standard, namely, by showing that the evidence was material for Brady

purposes.” (citing Banks, 540 U.S. at 691)).

“A defendant cannot meet [Brady]’s second prong when, ‘prior to trial, [he] 

had within [his] knowledge the information by which [he] could have ascertained 

the alleged Brady material.’ ... In such cases, ‘[w]hen the defendant has equal 

access to the evidence[,] disclosure is not required’ and ‘there is no suppression by 

the government.’ ” Wright v. Sec'y, Fla. Dep't of Corr., 761 F.3d 1256, 1278 (11th 

Cir. 2014) (quoting Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1315 & n.4

(11th Cir. 2005) (quotation marks omitted)), cert. denied, Wright v. Jones, 135 S. Ct. 

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2380 (2015). See also Boyd v. Comm'r, Ala. Dep't of Corr., 697 F.3d 1320, 1334 

(11th Cir. 2012) (“Evidence is not considered to have been suppressed if ‘the 

evidence itself ... proves that [the petitioner] was aware of the existence of that 

evidence before trial.’ ” (quoting Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.

1995)). Lewis himself, with reasonable diligence, could have accessed evidence 

related to his custody battle and visitation rights from his own personal files and 

from court records (as he was able to do with the Judgment of Divorce). 

Accordingly, Lewis has not shown that the Government suppressed evidence on 

these matters in violation of Brady, cf. LeCroy v. Sec'y, Fla. Dep't of Corr., 421 F.3d 

1237, 1267-68 (11th Cir. 2005) (“In this case, defense counsel obviously could have 

obtained the defendant's own medical and school records by exercising reasonable 

diligence. Consequently, there is no Brady violation.”), and has thus also not shown 

“cause” to excuse the procedural default of any alleged Brady violation based on this 

material.

The undersigned assumes, without deciding, that Lewis has shown “cause” 

for overcoming the procedural default of his Brady claim regarding interviews with 

Austin and Johnston, as his allegations indicate that Lewis himself could not have 

interviewed the women prior to pleading guilty because they had left Gulfport and 

Yelverton was unable to locate them. See Youngblood v. West Virginia, 547 U.S. 

867, 869-70 (2006) (per curiam) (“...Brady suppression occurs when the government 

fails to turn over even evidence that is ‘known only to police investigators and not to 

the prosecutor[.]’ ” (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)) (alteration 

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added); Baxter v. Thomas, 45 F.3d 1501, 1506 (11th Cir. 1995) (“To establish a 

Brady violation, Baxter must prove ... that the defendant does not possess the 

evidence nor could he obtain it himself with any reasonable diligence...” (quotation 

omitted)). However, Lewis must still show that he was prejudiced by the 

Government’s failure to disclose any investigator notes or transcripts of these 

interviews. Generally,

to establish prejudice[ under Brady], [a defendant] ha[s] to prove that 

there is “a reasonable probability that, had the evidence been disclosed 

to the defense, the result of the proceeding would have been different. 

A ‘reasonable probability’ is a probability sufficient to undermine 

confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 

105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). “The mere possibility 

that an item of undisclosed information might have helped the defense, 

or might have affected the outcome of the trial,” does not establish 

prejudice. United States v. Agurs, 427 U.S. 97, 109–10, 96 S. Ct. 2392, 

2400, 49 L.Ed.2d 342 (1976).

United States v. Brester, 786 F.3d 1335, 1339 (11th Cir. 2015).

“[A]lthough a showing of materiality does not require demonstration by a 

preponderance that disclosure of the suppressed evidence would have resulted 

ultimately in the defendant's acquittal,” it must be “show[n] that the favorable 

evidence could reasonably be taken to put the whole case in such a different light as 

to undermine confidence in the verdict.” Youngblood, 547 U.S. at 870 (citation and 

quotations omitted). See also Hittson v. GDCP Warden, 759 F.3d 1210, 1257 (11th 

Cir. 2014) (“While Brady's materiality requirement ‘is not a sufficiency of the 

evidence test,’—i.e., courts do not simply look to whether there is still enough 

evidence to support the result—a defendant must show ‘that the favorable evidence 

could reasonably be taken to put the whole case in such a different light as to 

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39

undermine confidence in the verdict.’ ” (quoting Kyles, 514 U.S. at 434-35), cert. 

denied, Hittson v. Chatman, 135 S. Ct. 2126 (2015).

Here, however, because Lewis pled guilty, to demonstrate prejudice he must 

show that, had the Government disclosed the suppressed evidence, he would not 

have pled guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59;

Tanzi v. Sec'y, Fla. Dep't of Corr., 772 F.3d 644, 662 n.4 (11th Cir. 2014) (“[T]he test 

for showing ‘prejudice’ under Strickland and ‘materiality’ under Brady are basically 

the same.”); Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (en banc)

(“Generally, the test of materiality is whether the evidence ‘undermines confidence 

in the outcome of the trial.’ United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 

3375, 87 L. Ed. 2d 481 (1985) (emphasis added). When the accused enters a plea 

rather than proceeding to trial, however, materiality is determined by ‘whether 

there is a reasonable probability that but for the failure to disclose the Brady

material, the defendant would have refused to plead and would have gone to trial.’

Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995).”); United States v. 

Nelson, 979 F. Supp. 2d 123, 134 (D.D.C. 2013) (same).

Lewis has failed to show prejudice. First, as explained previously, the record 

reflects that Lewis’s primary reason for pleading guilty, as expressed in his own 

words, was to spare his children from having to testify or further participate in 

these criminal proceedings. Second, Lewis himself had knowledge of, and could 

have testified to, the basic relevant facts contained in Austin and Johnston’s 

affidavits, particularly Austin’s alleged presence at the Gulfport residence on the 

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night of the assaults. In spite of possessing this knowledge, Lewis instead chose to 

plead guilty. Neither of these observations support a conclusion that Lewis would 

not have pled guilty and proceeded to trial but for the Government’s alleged 

suppression of the interviews with Austin and Johnston. 

Moreover, the exculpatory value of Austin and Johnston’s testimony is weak 

at best. See Brester, 786 F.3d at 1339 (mere possibility that an item of undisclosed 

information might have helped the defense, or might have affected the outcome of 

the trial, does not establish Brady prejudice). Austin and Johnston’s affidavits 

indicate that, had notes of their interviews been disclosed, they would have, at 

most, provided evidence that Austin was in fact present in Lewis’s Gulfport 

residence the night of December 31, 2010, when the sexual assaults occurred, and 

was not away that night, as stated in Lewis’s factual resume. However, Austin and 

Johnston provide very little in the way of specific details regarding what they told 

Government investigators about that particular night, instead asserting only broad, 

conclusory beliefs that it would have been “virtually impossible” for Lewis to assault 

the children because Austin was “constantly together” with them during the weeklong Christmastime visit to Gulfport. 

Neither affidavit offers sufficient facts indicating that Austin kept a 

unwavering eye on Lewis and/or the children the night of the assaults such that the

assaults could not have occurred without her knowledge. Cf. Burton v. St. Louis Bd. 

of Police Comm'rs, 731 F.3d 784, 793 (8th Cir. 2013) (“Coleman told Officer Wilder 

that the man he saw was not Burton, but he also said that he did not see who did 

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the shooting. Thus, Coleman did not know if the man he saw was the shooter, and, 

hence, he was not able to say that Burton was not the shooter. As such, Coleman's 

statement is not material to the issue of Burton's guilt or innocence, and it does not 

support Burton's Brady claims here.”). Additionally, any potential impact of Austin 

and Johnston’s testimony must be compared to the potential impact of the

testimony of Lewis’s two daughters, each of whom experienced abuse, “witnessed 

the abuse[ of the other], and provided consistent statements to investigators” (Doc. 

22 at 12), as well as the testimony of Lewis’s stepson, who saw Lewis go into the 

girls’ room alone the night of the assaults. In sum, Lewis has failed to show that he 

was prejudiced by the Government’s alleged suppression of interviews with Austin 

and Johnston.25

For these reasons, Lewis has failed to demonstrate “cause and prejudice” 

sufficient to overcome the procedural default of any of his Brady claims. Because 

“cause and prejudice” parallel two of the three necessary components of a Brady 

violation, Lewis has therefore also failed to demonstrate a meritorious Brady claim. 

As such, the undersigned need not address Lewis’s arguments to excuse procedural 

default based on “actual innocence” because, as explained below, a showing of 

“actual innocence” merely entitles a § 2255 movant to a merits consideration of an 

otherwise procedurally-defaulted claim.

For these reasons, Lewis is due no relief as to Claim 3.

 25 Lewis has also argued that Austin and Johnston’s testimony would have further 

bolstered his contention that the purpose of the Gulfport trip was to exercise Lewis’s 

visitation rights. For the reasons explained previously regarding § 2423(a)’s “intent” 

element, Austin and Johnston’s testimony is not “material” in this regard, and thus Lewis 

has not shown prejudice from its alleged suppression.

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C. Free-Standing Actual Innocence Claim (Claim 2)

In Claim 2, Lewis asserts a free-standing claim that he is actually innocent of 

the crime to which he pled guilty, on the basis that “(a) newly discovered evidence 

establishes that Lewis’ District Court appointed attorney and the United States 

withheld evidence exculpatory to the elements of the offense for which Lewis has 

been charged; (b) Lewis’ guilty plea was involuntary due to misguidance; (c) the 

Court accepted the plea without factual basis.” (Doc. 65 at 5). However, “[a]ctual 

innocence is not itself a substantive claim, but rather serves only to lift the 

procedural bar” for bringing an otherwise-defaulted claim in a § 2255 proceeding. 

United States v. Montano, 398 F.3d 1276, 1284 (11th Cir. 2005) (per curiam) (citing 

Bousley, 523 U.S. at 622). See also Cunningham v. Dist. Attorney's Office for 

Escambia Cnty., 592 F.3d 1237, 1273 (11th Cir. 2010) (“Under Schlup a showing of 

actual innocence ‘does not by itself provide a basis of relief.’ [513 U.S.] at 315, 115 

S. Ct. at 861. Instead, it is merely ‘a gateway through which a habeas petitioner 

must pass to have his otherwise [procedurally] barred constitutional claim 

considered on the merits.’ Id. (quotation marks omitted) ... ‘Claims of actual 

innocence based on newly discovered evidence have never been held to state a 

ground for federal habeas relief absent an independent constitutional violation 

occurring in the underlying state criminal proceeding.’ Herrera[ v. Collins], 506 

U.S. [390,] 400, 113 S. Ct. [853,] 860[ (1993)].”). 

Even if Lewis were allowed to assert actual innocence as a stand-alone claim, 

however, such a claim would fail. “To show actual innocence of the crime of 

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conviction, a movant ‘must show that it is more likely than not that no reasonable 

juror would have found [him] guilty beyond a reasonable doubt’ in light of the new 

evidence of innocence.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 

2011) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)) (quotation marks omitted). 

“[T]he actual innocence exception is a narrow exception[,]” and, for purposes of the 

exception, “ ‘ “actual innocence” means factual innocence, not mere legal 

insufficiency.’ ” Id. at 1197-98 (quoting Bousley, 523 U.S. at 623 (emphasis added)).

Here, none of Lewis’s alleged “new evidence” meets this standard. As 

explained previously, the Judgment of Divorce, at most, merely establishes that one

purpose of Lewis’s trip from Alabama to Mississippi and back was to exercise his 

visitation rights, and a reasonable juror could still have found that Lewis had the 

requisite intent to sexually assault his children when he made the trip. While 

Austin and Johnston’s testimony claims that Austin was “constantly” with Lewis 

and the children during the trip, including the night of December 31, 2010, and that 

as such it would have been “virtually impossible” for Lewis to have committed the 

assaults, a reasonable juror could have drawn the conclusion that such statements 

were hyperbole and that there were times when Austin was not aware of what 

Lewis and the children were doing on the night of December 31, 2010, even if she 

was present in the Gulfport residence at that time. For instance, as the 

Government suggests, “the assault likely could have occurred while Austin herself 

was asleep in a different room...” (Doc. 69 at 6). Moreover, to the extent Austin 

and Johnston’s testimony attempts to provide Lewis an alibi for the night of 

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December 31, 2010, a reasonable juror could have rejected their testimony in favor

of the testimony of Lewis’s minor daughters detailing the abuse that night, and the 

testimony of Lewis’s then-stepson that he witnessed Lewis go into the girls’ room 

that night.

Accordingly, Lewis is due no relief as to Claim 2.

D. Subject Matter Jurisdiction (Claim 4)

Finally, in Claim 4, Lewis claims that the Court lacked subject matter 

jurisdiction to convict him. See United States v. Thompson, 702 F.3d 604, 606 (11th 

Cir. 2012) (“While an unconditional guilty plea acts as a waiver of all nonjurisdictional challenges to a conviction, challenges to subject matter jurisdiction 

cannot be waived.” (citing United States v. Betancourth, 554 F.3d 1329, 1332 (11th 

Cir. 2009)). “ ‘[D]istrict courts ... have original jurisdiction ... [over] all offenses 

against the laws of the United States.’ ” 18 U.S.C. § 3231; see also U.S. Const. art. 

III, § 2 (‘The judicial Power shall extend to all Cases ... arising under ... the Laws of 

the United States.’).” United States v. De La Garza, 516 F.3d 1266, 1271 (11th Cir. 

2008). Accord United States v. Vargas, 563 F. App'x 684, 686 (11th Cir. Apr. 17, 

2014) (per curiam) (unpublished) (“Federal district courts have jurisdiction over 

offenses against the laws of the United States.” (citing 18 U.S.C. § 3231)). “Here, 

the Government charged [Lewis] with an offense against the laws of the United 

States, so absent a separate limit on subject matter jurisdiction, the district court 

had authority to adjudicate whether” Lewis violated 18 U.S.C. § 2423(a). De La 

Garza, 516 F.3d at 1271. Lewis has identified no separate limit, and the 

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undersigned is not aware of any. Nor has Lewis argued that “the indictment fails to 

charge an offense that implicates the district court's jurisdiction...” Thompson, 702 

F.3d at 606. Rather, Lewis has simply repackaged his other claims for relief (which 

the undersigned has rejected, see supra) into Claim 4 with a “subject matter 

jurisdiction” label.26

Accordingly, Lewis is due no relief as to Claim 4, and his § 2255 motion is due 

to be DENIED without an evidentiary hearing.

E. 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 

Lewis’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

 26 In his reply brief, Lewis argues that his actions do not fall within § 2423’s definition 

of “illicit sexual conduct” as, inter alia, “a sexual act (as defined in section 2246) with a 

person under 18 years of age that would be in violation of chapter 109A if the sexual act 

occurred in the special maritime and territorial jurisdiction of the United States...” 18 

U.S.C. § 2423(f)(1). Specifically, Lewis argues that the place of the crime, “his own home, in 

the sovereign Jurisdiction of his State of Mississippi[,]” does not fall within the “special 

maritime and territorial jurisdiction of the United States.” (See Doc. 70 at 9 – 10). Thus, 

he concludes, only the state of Mississippi had jurisdiction to prosecute him for the sexual 

assaults.

Leaving aside Lewis’s strained interpretation of § 2423(f)(1), his reliance on that 

provision is misplaced, as a showing of “illicit sexual conduct” as defined in § 2423(f) is not 

an element of an offense under § 2423(a).

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

Where the district court “has rejected the constitutional claims on the merits, 

the showing required to satisfy § 2253(c) is straightforward: The petitioner must 

demonstrate that reasonable jurists would find the district court's assessment of the 

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000). See also Miller-El, 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 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 Lewis’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 

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claims as procedurally barred, the undersigned also finds that jurists of reason 

would not find such a procedural ruling debatable. Accordingly, Lewis 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);27 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).

F. 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 

 27 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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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 

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 

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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 Lewis in this action would be without merit and 

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

appeal in forma pauperis.

V. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that 

Lewis’s § 2255 motion (Doc. 65) be DENIED without an evidentiary hearing and 

DISMISSED with prejudice. Should that recommendation be adopted, it is

further RECOMMENDED that Lewis 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). 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 

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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 5th day of October 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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