USA v. Mosley

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANKLIN MOSLEY, # 47715-048, 	*
*
Petitioner, 	*
* CRIMINAL NO. 13-00063-TFM-B
vs. 	* CIVIL ACTION NO. 24-00458-TFM-B
*
UNITED STATES OF AMERICA, 	*
*
Respondent. 	*
REPORT AND RECOMMENDATION
Pending 	before 	the 	Court 	is 	Petitioner 	Franklin 	Mosley’s
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence 	(Doc. 	151). 	The 	motion 	has 	been 	referred 	to 	the
undersigned 	Magistrate 	Judge 	for 	entry 	of 	a 	report 	and
recommendation 	pursuant 	to 	28 	U.S.C. 	§ 636(b)(1)(B), 	S.D. 	Ala.
GenLR 	72(a)(2)(R), 	and 	Rule 	8(b) 	of 	the 	Rules 	Governing 	Section
2255 	Proceedings 	in 	the 	United 	States 	District 	Courts.1 	Having
carefully 	reviewed 	the 	record, 	the 	undersigned 	finds 	that 	no
evidentiary 	hearing 	is 	necessary 	for 	the 	disposition 	of 	this
matter.2 	Upon 	consideration, 	the 	undersigned 	hereby 	recommends
1 The undersigned has reviewed Petitioner Mosley’s motion and all
other 	relevant 	documents 	in 	the 	Court’s 	file 	and 	has 	fully
familiarized herself with the proceedings in this case.
2 	A district court is not required to hold an evidentiary hearing
on 	patently 	frivolous 	claims, 	claims 	that 	are 	based 	upon
unsupported 	generalizations, 	or 	claims 	that 	are 	affirmatively
contradicted 	by 	the 	record. 	Holmes 	v. 	United 	States, 	876 	F.2d
1545, 1553 (11th Cir. 1989).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 1 of 27 PageID#
<pageID>

2
that Petitioner Mosley’s § 2255 motion (Doc. 151) be DENIED, that
this 	action 	be 	DISMISSED 	with 	prejudice, 	and 	that 	judgment 	be
entered in favor of Respondent, the United States of America, and
against 	Petitioner 	Mosley. 	The 	undersigned 	further 	recommends
that 	Petitioner 	Mosley 	be 	DENIED 	a 	certificate 	of 	appealability
and leave to appeal in forma pauperis.
I. 	BACKGROUND
In 	June 	2013, 	Petitioner 	Franklin 	Mosley 	(“Mosley”) 	pleaded
guilty in this Court to one count of failure to register as a sex
offender 	in 	violation 	of 	18 	U.S.C. 	§ 	2250(a). 	(Docs. 	17, 	34).
Before 	Mosley’s 	sentencing, 	a 	probation 	officer 	prepared 	a
presentence 	investigation 	report 	(“PSR”). 	(Docs. 	18, 	19). 	As
relevant here, the PSR reported that Mosley’s guideline range for
a 	term 	of 	supervised 	release 	was 	“five 	years 	to 	life.” 	(Doc. 	18
at 20; Doc. 19 at 20). 	Neither Mosley nor the Government objected
to 	the 	PSR. 	(Doc. 	20; 	Doc. 	35 	at 	3). 	At 	Mosley’s 	sentencing
hearing 	in 	October 	2013, 	the 	district 	court 	adopted 	the 	PSR 	as
published 	and 	found 	that 	it 	accurately 	calculated 	the 	sentencing
guidelines. 	(Doc. 35 at 3). 	The district court sentenced Mosley
to twenty-four months of imprisonment, to be followed by a lifetime
term 	of 	supervised 	release. 	(Doc. 	23 	at 	2-3; 	Doc. 	35 	at 	12).
Mosley’s 	counsel 	objected 	to 	the 	lifetime 	term 	of 	supervised
release as substantively unreasonable. 	(Doc. 35 at 14-15).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 2 of 27 PageID#
<pageID>

3
Mosley 	(through 	his 	counsel) 	appealed 	the 	lifetime 	term 	of
supervised 	release. 	(Doc. 	26). 	On 	direct 	appeal, 	Mosley 	argued
that 	the 	district 	court 	procedurally 	erred 	in 	adopting 	the 	PSR’s
guideline calculation of a term of supervised release ranging from
five years to life. 	(Doc. 37 at 2). 	Mosley asserted that U.S.S.G.
§ 	5D1.2(b)(2) 	– 	which 	the 	PSR 	cited 	as 	a 	relevant 	guideline
provision 	for 	imposing 	a 	term 	of 	supervised 	release 	– 	was
“inapplicable 	to 	him 	because 	it 	prescribes 	a 	lifetime 	term 	of
supervised 	release 	for 	a 	‘sex 	offense,’ 	which 	is 	defined 	as 	an
offense ‘perpetrated against a minor.’” 	(Id. at 3). 	Mosley argued
that his offense of failing to register as a sex offender did not
fit 	this 	definition, 	and 	so 	the 	district 	court 	plainly 	erred 	in
calculating his applicable guideline range. 	(Id.). 	Mosley further
argued 	that 	the 	district 	court 	procedurally 	erred 	by 	failing 	to
make adequate findings in support of a lifetime term of supervised
release, 	and 	that 	his 	life 	term 	of 	supervised 	release 	was
substantively unreasonable. 	(Id. at 2).
In an opinion dated July 25, 2014, the Eleventh Circuit Court
of Appeals affirmed Mosley’s sentence and found that his lifetime
term of supervised release was both procedurally and substantively
reasonable. 	(Id. 	at 	1-7). 	Because 	Mosley’s 	counsel 	had 	not
challenged the PSR’s guidelines calculation in the district court,
the Eleventh Circuit reviewed Mosley’s first claim for plain error
only. 	(Id. at 2). 	The Eleventh Circuit found that even assuming
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 3 of 27 PageID#
<pageID>

4
the district court did err in calculating the guideline range for
Mosley’s supervised release term, the error was not plain because
there was “no controlling precedent from the Supreme Court or [the
Eleventh 	Circuit 	Court 	of 	Appeals] 	on 	point.”3 	(Id. 	at 	3). 	The
Eleventh Circuit further found that Mosley’s guideline calculation
claim failed on plain error review because:
Mosley 	has 	proffered 	no 	evidence 	indicating 	that 	his
sentence 	would 	have 	been 	different 	if 	not 	for 	the
district court’s alleged error. 	The district court here
discussed 	Mosley’s 	“absolutely 	horrible” 	arrest 	record
that 	stretched 	back 	for 	years: 	battery, 	forgery,
harassment, 	domestic 	violence, 	driving 	while
intoxicated, 	destruction 	or 	property, 	arson, 	receiving
stolen 	property, 	burglary, 	theft, 	and 	eluding 	police
officers. 	The court also referenced pending charges and
warrants 	against 	Mos[ley] 	in 	Alabama, 	Minnesota,
Oklahoma, 	and 	Louisiana, 	and 	Mosley’s 	failure 	to
register as a sex offender in three states. 	It did not
mention 	the 	Guideline 	calculations 	other 	than 	to 	state
that, 	absent 	objections, 	it 	was 	adopting 	them 	as
accurate. 	Moreover, 	18 	U.S.C. 	§ 	3583(k) 	authorizes 	a
lifetime 	term 	of 	supervised 	release 	for 	§ 	2250
violations. 	Under 	these 	facts, 	Mosley 	cannot 	show 	a
“reasonable 	probability” 	that, 	but 	for 	the 	alleged
error, 	his 	sentence 	would 	have 	been 	different, 	thus 	he
fails to meet his burden of demonstrating plain error.
(Id. at 4). 	The Eleventh Circuit further found that “the district
court 	provided 	an 	adequate 	explanation 	of 	the 	sentence 	imposed”
and 	thus 	concluded 	that 	Mosley’s 	“sentence 	was 	procedurally
reasonable.” 	(Id. at 5). 	Finally, the Eleventh Circuit determined
3 	See 	United 	States 	v. 	Schultz, 	565 	F.3d 	1353, 	1357 	(11th 	Cir.
2009) 	(per 	curiam) 	(“An 	error 	is 	not 	plain 	unless 	it 	is 	contrary
to explicit statutory provisions or to on-point precedent in this
Court or the Supreme Court.”).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 4 of 27 PageID#
<pageID>

5
that 	“Mosley’s 	sentence 	was 	substantively 	reasonable 	under 	the
totality of the circumstances.” 	(Id. at 7).
Mosley 	completed 	his 	term 	of 	imprisonment 	in 	December 	2014
and 	began 	serving 	his 	lifetime 	term 	of 	supervised 	release. 	(See
Doc. 	39 	at 	1). 	Since 	then, 	Mosley’s 	supervised 	release 	has 	been
revoked five times.
In 2016, after Mosley admitted to multiple violations of the
terms 	of 	his 	supervised 	release, 	the 	district 	court 	revoked
Mosley’s 	supervised 	release 	and 	sentenced 	him 	to 	eight 	months 	of
imprisonment 	and 	a 	lifetime 	term 	of 	supervised 	release. 	(Doc.
51). 	In 	2017, 	the 	district 	court 	revoked 	Mosley’s 	supervised
release 	again 	due 	to 	several 	new 	violations 	and 	sentenced 	him 	to
twenty-four 	months 	of 	imprisonment 	and 	a 	lifetime 	term 	of
supervised 	release. 	(Doc. 	64). 	In 	2019, 	the 	district 	court
revoked 	Mosley’s 	supervised 	release 	for 	a 	third 	time 	due 	to 	new
violations and sentenced him to twenty-one months of imprisonment
and 	a 	lifetime 	term 	of 	supervised 	release. 	(Doc. 	82). 	In 	2021,
the district court revoked Mosley’s supervised release for a fourth
time due to new violations and sentenced him to twenty-four months
of imprisonment and a lifetime term of supervised release. 	(Doc.
114).
In October 2023, Mosley’s probation officer filed a petition
seeking 	to 	have 	Mosley’s 	supervised 	release 	revoked 	for 	a 	fifth
time, based on his failure to complete the first six months of his
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 5 of 27 PageID#
<pageID>

6
supervised 	release 	term 	at 	a 	residential 	reentry 	center. 	(Doc.
127). 	Mosley waived his right to a revocation hearing and admitted
to 	the 	violation 	set 	forth 	in 	the 	petition. 	(Doc. 	149). 	At
Mosley’s 	revocation 	hearing 	on 	August 	22, 	2024, 	Mosley’s 	counsel
requested 	a 	sentence 	within 	the 	sentencing 	guidelines 	range 	of
eight to fourteen months of imprisonment. 	(Doc. 156 at 4). 	Mosley
personally 	addressed 	the 	district 	court 	and 	stated, 	among 	other
things, that he “want[ed] to, one day, be able to come in front of
you 	and 	request 	that 	I 	get 	off 	the 	supervised 	release.” 	(Id. 	at
6). 	Counsel for the Government noted that the probation office’s
recommendation 	was 	twenty-four 	months 	of 	imprisonment, 	“with, 	of
course, the mandatory lifetime supervised release term to follow,”
but 	the 	Government 	deferred 	to 	the 	district 	court 	as 	to 	the
appropriate 	sentence. 	(Id. 	at 	7-8). 	The 	district 	court 	found
that 	Mosley 	had 	violated 	his 	conditions 	of 	supervision, 	revoked
his 	previously 	imposed 	term 	of 	supervised 	release, 	and 	sentenced
Mosley 	to 	twenty-four 	months 	of 	imprisonment 	and 	a 	lifetime 	term
of supervised release. 	(Id. at 10-11). 	Mosley’s counsel objected
to the sentence on the basis that, “procedurally and substantively,
the 	reasons 	stated 	on 	the 	record 	[were] 	insufficient 	to 	warrant
exceeding 	the 	Chapter 	7 	guidelines.” 	(Id. 	at 	11). 	The 	district
court 	overruled 	defense 	counsel’s 	objection 	and 	concluded 	the
hearing 	by 	informing 	Mosley 	of 	his 	right 	to 	appeal. 	(Id. 	at 	11-
12). 	The 	district 	court 	entered 	its 	judgment 	for 	revocation 	of
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 6 of 27 PageID#
<pageID>

7
supervised release on September 2, 2024. 	(Doc. 150). 	Mosley did
not 	appeal 	the 	revocation 	of 	his 	supervised 	release 	or 	the
revocation sentence imposed by the district court.
However, 	on 	November 	25, 	2024,4 	Mosley, 	proceeding 	pro 	se,
filed 	the 	instant 	motion 	under 	§ 	2255 	to 	vacate, 	set 	aside, 	or
correct his sentence, along with a supporting memorandum. 	(Docs.
151, 	151-1). 	The 	Government 	filed 	a 	response 	in 	opposition 	to
Mosley’s § 2255 motion. 	(Doc. 157). 	Mosley filed a reply. 	(Doc.
172). 	Thus, Mosley’s § 2255 motion has been fully briefed and is
ripe for resolution.
II. 	HABEAS STANDARD
The 	limited 	scope 	of 	habeas 	relief 	is 	well 	established, 	as
this Court has recognized:
Collateral relief is an extraordinary remedy which “may
not do service for a[ ] [direct] appeal.” 	United States
v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed.
2d 816 (1982); see also Lynn v. United States, 365 F.3d
1225, 	1232 	(11th 	Cir. 	2004) 	(“Courts 	have 	long 	and
consistently affirmed that a collateral challenge, such
as a § 2255 motion, may not be a surrogate for a direct
appeal.”). 	A defendant who has waived or exhausted his
right to appeal is presumed to stand “fairly and finally
convicted.” 	Frady, 	456 	U.S. 	at 	164. 	Unless 	a 	claim
alleges a lack of jurisdiction or constitutional error,
4 Under the mailbox rule, “a pro se prisoner’s motion to vacate is
deemed 	filed 	the 	date 	it 	is 	delivered 	to 	prison 	authorities 	for
mailing.” 	Adams v. United States, 173 F.3d 1339, 1341 (11th Cir.
1999) (per curiam). 	Absent evidence to the contrary, that date is
presumed to be the date the prisoner signed the motion. 	Washington
v. 	United 	States, 	243 	F.3d 	1299, 	1301 	(11th 	Cir. 	2001) 	(per
curiam). 	Mosley’s 	§ 	2255 	motion 	states 	that 	it 	was 	signed 	and
placed 	in 	the 	prison 	mailing 	system 	on 	November 	25, 	2024. 	(Doc.
151 at 12).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 7 of 27 PageID#
<pageID>

8
the 	scope 	of 	collateral 	attack 	has 	remained 	extremely
limited. 	United States v. Addonizio, 442 U.S. 178, 185,
99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). 	Consequently,
“[i]f issues are raised and considered on direct appeal,
a defendant is thereafter precluded from urging the same
issues 	in 	a 	later 	collateral 	attack. 	. 	. 	. 	A 	defendant
is, of course, entitled to a hearing of his claims, but
not 	to 	duplicate 	hearings. 	The 	appellate 	process 	does
not 	permit 	reruns.” 	Moore 	v. 	United 	States, 	598 	F.2d
439, 441 (5th Cir. 1979).
United States v. Evans, 2008 U.S. Dist. LEXIS 59836, at *8-9, 2008
WL 3200694, at *3 (S.D. Ala. Aug. 6, 2008).
III. DISCUSSION
Mosley’s 	§ 	2255 	motion 	raises 	two 	claims 	of 	ineffective
assistance 	of 	counsel, 	both 	based 	on 	his 	belief 	“that 	the
Guidelines calculation for the imposition of a supervised release
term 	was 	incorrect.” 	(See 	Docs. 	151, 	151-1). 	Mosley 	contends
that the proper guidelines calculation for the length of supervised
release was a fixed term of five years rather than a range of five
years to life. 	(Doc. 151-1 at 6). 	Mosley claims that the attorney
who 	represented 	him 	during 	his 	most 	recent 	supervised 	release
revocation proceedings in 2024 provided ineffective assistance by
(1) 	failing 	to 	raise 	this 	argument 	before 	the 	district 	court 	and
(2) failing to file an appeal raising this argument and challenging
the guidelines calculation provided to the district court. 	(Doc.
151 at 4-5; Doc. 151-1 at 6, 8).
As already noted, Mosley originally pleaded guilty to failure
to 	register 	as 	a 	sex 	offender 	in 	violation 	of 	the 	Sex 	Offender
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 8 of 27 PageID#
<pageID>

9
Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).
As 	the 	PSR 	and 	the 	district 	court 	recognized, 	the 	statutory
supervised release range for Mosley’s SORNA offense was five years
to life. 	See 18 U.S.C. § 3583(k) (authorizing a supervised release
term 	of 	five 	years 	to 	life 	for 	a 	§ 	2250 	conviction). 	The 	PSR
stated:
Since the statute requires a term of supervised release
of five years for Count 1, the guideline requirement for
a term of supervised release is five years to life. 	USSG
§5D1.2(b). 	Notwithstanding subsections (a)(1)-(3), the
length 	of 	the 	term 	of 	supervised 	release 	shall 	be 	not
less 	than 	the 	minimum 	term 	of 	years 	specified 	for 	the
offense 	under 	subdivisions 	(a)(1)-(3) 	and 	may 	be 	up 	to
life, if the offense is a sex offense. 	Since the statute
requires 	a 	mandatory 	minimum 	term 	of 	five 	years, 	the
guideline range for a term of supervised release is five
years to life. USSG §5D1.2(b)(2).
(Doc. 	18 	at 	20; 	Doc. 	19 	at 	20). 	Mosley’s 	counsel 	did 	not 	object
to 	the 	PSR, 	and 	the 	district 	court 	adopted 	the 	PSR 	as 	published
and found that it accurately calculated the sentencing guidelines.
(Doc. 24 at 1; Doc. 35 at 3). 	The district court sentenced Mosley
to 	twenty-four 	months 	of 	imprisonment 	and 	a 	lifetime 	term 	of
supervised release for his offense of failure to register as a sex
offender 	under 	SORNA. 	(Doc. 	24 	at 	2-3; 	Doc. 	35 	at 	12). 	Mosley
filed 	a 	direct 	appeal 	challenging 	the 	procedural 	and 	substantive
reasonableness 	of 	the 	lifetime 	supervised 	release 	term, 	but 	the
Eleventh Circuit affirmed his sentence. 	(Doc. 37).
“Because 	the 	maximum 	term 	of 	imprisonment 	for 	failing 	to
register under SORNA is ten years under § 2250(a), such a failure
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 9 of 27 PageID#
<pageID>

10
constitutes a Class C felony.” 	United States v. Collins, 773 F.3d
25, 32 (4th Cir. 2014) (citing 18 U.S.C. § 3559(a)(3)).5 	Section
5D1.2(a) 	of 	the 	sentencing 	guidelines 	calls 	for 	a 	supervised
release term of between one and three years for a Class C felony,
“[e]xcept 	as 	provided 	in 	subsections 	(b) 	and 	(c)” 	of 	§ 	5D1.2.
U.S.S.G. § 5D1.2(a)(2). 	Section 5D1.2(b)-(c) provide, in relevant
part:
(b) Notwithstanding subdivisions (a)(1) through (3), the
length 	of 	the 	term 	of 	supervised 	release 	shall 	be 	not
less 	than 	the 	minimum 	term 	of 	years 	specified 	for 	the
offense under subdivisions (a)(1) through (3) and may be
up to life, if the offense is – . . .
(2) a sex offense.
(Policy Statement) If the instant offense of conviction
is a sex offense, however, the statutory maximum term of
supervised release is recommended.
(c) The term of supervised release imposed shall be not
less 	than 	any 	statutorily 	required 	term 	of 	supervised
release.
Id. at § 5D1.2(b)-(c).
When 	Mosley 	was 	originally 	sentenced 	in 	2013, 	the 	federal
circuit 	courts 	of 	appeal 	were 	split 	as 	to 	whether 	failure 	to
register 	as 	a 	sex 	offender 	in 	violation 	of 	18 	U.S.C. 	§ 	2250
5 Out-of-circuit cases can be persuasive when they do not conflict
with 	binding 	Eleventh 	Circuit 	precedent. 	See 	Aharon 	v. 	Chinese
Communist Party, --- F. Supp. 3d ----, 2025 U.S. Dist. LEXIS 99824,
at *24-25, 2025 WL 1501938, at *8 (S.D. Fla. May 27, 2025); Roe v.
Michelin 	N. 	Am., 	Inc., 	613 	F.3d 	1058, 	1062 	(11th 	Cir. 	2010)
(“Because 	our 	precedent 	is 	relatively 	sparse 	in 	this 	area, 	we
consider decisions from other circuits as persuasive authority.”).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 10 of 27 PageID#
<pageID>

11
constituted 	a 	“sex 	offense” 	for 	purposes 	of 	§ 	5D1.2. 	See 	United
States 	v. 	Cuneo, 	554 	F. 	App’x 	313, 	316 	n.4 	(5th 	Cir. 	2014) 	(per
curiam) 	(collecting 	cases 	and 	detailing 	the 	circuit 	split). 	An
unpublished 	opinion 	from 	the 	Eleventh 	Circuit 	indicated 	(without
further discussion) that failure to register as a sex offender in
violation 	of 	18 	U.S.C. 	§ 	2250(a) 	was 	a 	sex 	offense 	for 	which 	the
guidelines range under § 5D1.2 was five years to life. 	See United
States 	v. 	Zeiders, 	440 	F. 	App’x 	699, 	701 	(11th 	Cir. 	2011) 	(per
curiam).6
The term “sex offense” is defined in Application Note 1 to §
5D1.2. 	“In 	Amendment 	786, 	effective 	November 	1, 	2014, 	the
Sentencing 	Commission, 	to 	resolve 	[the] 	perceived 	circuit
conflict, 	amended 	Application 	Note 	1 	to 	provide, 	‘Such 	term 	does
not 	include 	an 	offense 	under 	18 	U.S.C. 	§ 	2250 	(Failure 	to
register).’” 	United States v. Floss, 42 F.4th 854, 861 (8th Cir.
2022); see U.S.S.G. § 5D1.2 cmt. n.1. 	Additionally, in Application
Note 6, the Sentencing Commission “adopted the Gibbs rule,” which
“holds 	that 	when 	the 	Guidelines 	range 	is 	below 	the 	statutory
minimum, 	the 	Guidelines 	should 	be 	read 	to 	recommend 	a 	‘single
6 Federal Appendix cases are unpublished Eleventh Circuit opinions
and are not considered binding precedent, but they may be cited as
persuasive authority. 	See 11th Cir. R. 36-2 (“Unpublished opinions
are 	not 	considered 	binding 	precedent, 	but 	they 	may 	be 	cited 	as
persuasive 	authority.”); 	Henry 	v. 	Comm’r 	of 	Soc. 	Sec., 	802 	F.3d
1264, 	1267 	n.1 	(11th 	Cir. 	2015) 	(per 	curiam) 	(“Cases 	printed 	in
the Federal Appendix are cited as persuasive authority.”).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 11 of 27 PageID#
<pageID>

12
point’ 	at 	the 	statutory 	minimum, 	rather 	than 	a 	range.” 	Collins,
773 	F.3d 	at 	32; 	see 	U.S.S.G. 	§ 	5D1.2 	cmt. 	n.6 	(“[I]f 	subsection
(a) provides a range of two years to five years, but the relevant
statute requires a minimum term of supervised release of five years
and a maximum term of life, the term of supervised release provided
by 	the 	guidelines 	is 	five 	years.”); 	United 	States 	v. 	Gibbs, 	578
F.3d 	694, 	695 	(7th 	Cir. 	2009) 	(“[T]he 	statutory 	minimum 	term 	of
supervised release defines either the bottom limit of the advisory
Guidelines range or the entire range (if it coincides with the top
of the Guidelines range).”). 	These amendments clarified that even
though “the district court is authorized under § 3583(k) to impose
a 	term 	of 	supervised 	release 	of 	up 	to 	life—by 	operation 	of 	§
5D1.2(a)(2) and (c), the recommended Guidelines term of supervised
release 	for 	a 	violation 	of 	§ 	2250 	is 	five 	years.” 	United 	States
v. Agritelly, 665 F. App’x 109, 111 (2d Cir. 2016); see also United
States 	v. 	Putnam, 	806 	F.3d 	853, 	855 	(5th 	Cir. 	2015) 	(per 	curiam)
(“[A]mendments 	to 	the 	Guidelines 	. 	. 	. 	revised 	the 	commentary
accompanying 	section 	5D1.2(b)(2) 	to 	clarify 	that 	failure 	to
register as a sex offender does not constitute a sex offense. 	The
Guidelines recommendation for the length of supervised release is
thus just five years, rather than the range of five years to life
. . . .”) (internal citation omitted).
Based on the foregoing, Mosley contends that his counsel was
ineffective for failing to argue before the district court and on
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 12 of 27 PageID#
<pageID>

13
direct 	appeal 	that 	his 	guidelines 	range 	for 	a 	term 	of 	supervised
release was just five years.
A. 	Claims Challenging Mosley’s Original 2013 Conviction and
Sentence.
The 	Court 	notes 	as 	a 	preliminary 	matter 	that 	it 	understands
the 	instant 	§ 	2255 	motion 	as 	a 	challenge 	to 	the 	sentence 	imposed
upon the most recent revocation of Mosley’s supervised release in
2024. 	However, 	to 	the 	extent 	the 	instant 	§ 	2255 	motion 	can 	be
construed 	to 	raise 	claims 	challenging 	Mosley’s 	underlying 	2013
conviction or sentence, the Court agrees with the Government that
any such claims are time-barred.7 	(See Doc. 157 at 5-6).
“The 	Antiterrorism 	and 	Effective 	Death 	Penalty 	Act 	(AEDPA)
provides 	a 	one-year 	statute 	of 	limitations 	to 	bring 	a 	§ 	2255
motion.” 	Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir.
2017) (citing 28 U.S.C. § 2255(f)). 	The one-year limitation period
begins 	to 	run 	on 	the 	latest 	of 	the 	following 	four 	possible
triggering dates:
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created 	by 	governmental 	action 	in 	violation 	of 	the
7 	This 	includes 	any 	claims 	of 	ineffective 	assistance 	on 	the 	part
of 	defense 	counsel 	in 	Mosley’s 	2013-2014 	district 	court 	and
appellate 	proceedings. 	Thus, 	for 	example, 	to 	the 	extent 	the
instant 	§ 	2255 	motion 	can 	be 	construed 	to 	allege 	that 	defense
counsel 	was 	ineffective 	for 	failing 	to 	object 	to 	the 	guidelines
calculation 	for 	a 	supervised 	release 	term 	during 	Mosley’s 	2013
sentencing 	proceedings, 	such 	claim 	is 	barred 	by 	the 	statute 	of
limitations.
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 13 of 27 PageID#
<pageID>

14
Constitution or laws of the United States is removed, if
the 	movant 	was 	prevented 	from 	making 	a 	motion 	by 	such
governmental action;
(3) 	the 	date 	on 	which 	the 	right 	asserted 	was 	initially
recognized by the Supreme Court, if that right has been
newly 	recognized 	by 	the 	Supreme 	Court 	and 	made
retroactively applicable to cases on collateral review;
or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 	U.S.C. 	§ 	2255(f). 	The 	timeliness 	of 	each 	claim 	asserted 	in 	a
§ 2255 motion must be considered independently. 	Beeman, 871 F.3d
at 1219.
“Typically, 	the 	applicable 	triggering 	date 	is 	‘the 	date 	on
which the judgment of conviction becomes final.’” 	Id. (quoting 28
U.S.C. 	§ 	2255(f)(1)). 	To 	the 	extent 	Mosley 	is 	challenging 	the
lifetime 	supervised 	release 	sentence 	set 	forth 	in 	his 	original
2013 judgment of conviction, that judgment became final on or about
October 23, 2014, when his time for filing a petition for writ of
certiorari 	with 	the 	United 	States 	Supreme 	Court 	expired. 	See
Ramirez 	v. 	United 	States, 	146 	F. 	App’x 	325, 	326 	(11th 	Cir. 	2005)
(per 	curiam) 	(“[I]f 	the 	federal 	prisoner 	does 	not 	file 	a 	timely
certiorari 	petition 	after 	disposition 	of 	her 	direct 	appeal, 	the
conviction becomes final on the date on which the prisoner’s time
for 	filing 	such 	a 	petition 	expires, 	which 	is 	90 	days 	after 	the
entry of judgment on direct appeal.”). 	Thus, under § 2255(f)(1),
Mosley 	had 	until 	on 	or 	about 	October 	23, 	2015 	to 	timely 	file 	a 	§
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 14 of 27 PageID#
<pageID>

15
2255 motion attacking his original judgment of conviction. 	Mosley
filed the instant § 2255 more than nine years after that date.
To 	the 	extent 	Mosley 	relies 	on 	Molina-Martinez 	v. 	United
States, 578 U.S. 189 (2016), to establish the timeliness of claims
challenging 	his 	underlying 	2013 	conviction 	or 	sentence 	under 	§
2255(f)(3) 	(see 	Doc. 	151-1 	at 	6-8), 	his 	reliance 	is 	misplaced.
Molina-Martinez 	“did 	not 	announce 	a 	right 	that 	was 	‘newly
recognized by the Supreme Court and made retroactively applicable
to 	cases 	on 	collateral 	review.’” 	Long 	v. 	United 	States, 	2016 	WL
11597735, 	at 	*2 	(M.D. 	Fla. 	Oct. 	13, 	2016) 	(quoting 	28 	U.S.C. 	§
2255(f)(3)); see also Bell v. United States, 2020 U.S. Dist. LEXIS
48240, 	at 	*2, 	2020 	WL 	1324588, 	at 	*1 	(E.D. 	Tex. 	Mar. 	20, 	2020)
(“[T]he 	Supreme 	Court 	did 	not 	state 	that 	its 	decision 	in 	Molina-
Martinez 	was 	to 	be 	applied 	retroactively. 	Movant 	fails 	to 	show,
nor has the Court found, instances in which Molina-Martinez applied
retroactively 	on 	collateral 	review.”). 	Furthermore, 	even 	if
Molina-Martinez 	did 	apply 	retroactively 	on 	collateral 	review, 	it
was decided more than eight years before Mosley filed the instant
§ 	2255 	motion. 	Thus, 	it 	cannot 	render 	the 	instant 	motion 	timely
under § 2255(f)(3).8
8 Mosley has made no allegations suggesting, and there is no reason
to 	believe, 	that 	either 	of 	the 	alternative 	triggering 	dates
provided in § 2255(f)(2) and § 2255(f)(4) apply to his claims.
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 15 of 27 PageID#
<pageID>

16
Mosley has neither alleged nor established that he is entitled
to 	equitable 	tolling 	of 	the 	limitation 	period, 	and 	he 	has 	failed
to make a colorable claim of actual innocence that could serve as
a 	gateway 	to 	consideration 	of 	his 	otherwise 	time-barred 	claims.
Accordingly, to the extent the instant § 2255 motion raises claims
challenging Mosley’s underlying 2013 conviction or sentence, such
claims 	are 	barred 	by 	the 	one-year 	statute 	of 	limitations 	in 	28
U.S.C. § 2255(f).9
B. 	Claims 	Challenging 	Mosley’s 	2024 	Supervised 	Release
Revocation and Sentence.
The 	Government 	argues 	that 	Mosley 	cannot 	assert 	ineffective
assistance 	of 	counsel 	claims 	arising 	from 	his 	2024 	supervised
release 	revocation 	proceedings 	“because 	he 	did 	not 	have 	a 	Sixth
9 	Likewise, 	to 	the 	extent 	the 	instant 	motion 	can 	be 	construed 	to
challenge 	or 	assert 	ineffective 	assistance 	of 	counsel 	claims
relating 	to 	any 	of 	Mosley’s 	four 	earlier 	supervised 	release
revocations 	or 	revocation 	sentences 	(see 	Doc. 	151-1 	at 	4), 	such
claims 	are 	barred 	by 	the 	one-year 	statute 	of 	limitations 	in 	§
2255(f). 	The 	most 	recent 	of 	Mosley’s 	four 	prior 	revocation
judgments was entered on June 25, 2021. 	(Doc. 114). 	That judgment
became 	final 	on 	or 	about 	July 	9, 	2021, 	the 	date 	by 	which 	Mosley
could have timely filed a notice of appeal. 	See Hinkson v. United
States, 2023 U.S. Dist. LEXIS 54586, at *5, 2023 WL 2713997, at *2
(N.D. 	Ga. 	Mar. 	30, 	2023) 	(“Movant 	was 	sentenced 	on 	September 	13,
2017, in conjunction with the revocation of his supervised release.
He 	failed 	to 	appeal, 	which 	means 	the 	conviction 	became 	final
fourteen days later on September 27, 2017.”). 	Thus, even if Mosley
is 	challenging 	the 	most 	recent 	of 	his 	four 	prior 	revocation
judgments, his § 2255 motion, filed in November 2024, is untimely
by more than two years. 	Accordingly, any claims in the instant §
2255 	motion 	challenging 	or 	asserting 	ineffective 	assistance 	of
counsel 	in 	relation 	to 	Mosley’s 	four 	prior 	supervised 	release
revocations or revocation sentences are time-barred.
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 16 of 27 PageID#
<pageID>

17
Amendment right to counsel in those proceedings.” 	(Doc. 157 at 6-
7). 	However, “the Eleventh Circuit has not addressed the issue of
whether 	a 	defendant 	has 	a 	constitutional 	right 	to 	effective
assistance 	of 	counsel 	at 	a 	revocation 	proceeding.” 	Davila 	v.
United States, 2021 U.S. Dist. LEXIS 84344, at *5, 2021 WL 1738885,
at 	*2 	(S.D. 	Ga. 	May 	3, 	2021). 	“And 	the 	district 	courts 	in 	the
circuit 	appear 	to 	handle 	[claims 	of 	ineffective 	assistance 	of
counsel 	during 	revocation 	proceedings] 	arising 	in 	the 	§ 	2255
context 	differently.” 	Id. 	(collecting 	cases). 	Because 	Mosley’s
ineffective 	assistance 	of 	counsel 	claims 	fail 	on 	the 	merits, 	the
undersigned 	concludes 	that 	it 	is 	not 	necessary 	for 	the 	Court 	to
address the issue of whether Mosley had a constitutional right to
effective 	assistance 	of 	counsel 	in 	his 	supervised 	release
revocation proceedings.
To 	prevail 	on 	a 	claim 	of 	ineffective 	assistance 	of 	counsel,
a 	defendant 	must 	demonstrate 	both 	that 	(1) 	counsel’s 	performance
was 	deficient 	because 	it 	fell 	below 	an 	objective 	standard 	of
reasonableness, and (2) that counsel’s poor performance prejudiced
his 	defense 	because 	there 	is 	a 	reasonable 	probability 	that, 	but
for counsel’s errors, the result of the proceeding would have been
different. 	Strickland 	v. 	Washington, 	466 	U.S. 	668, 	687-88, 	694
(1984). 	The defendant bears the burden of proving his ineffective
assistance 	claims, 	and 	he 	must 	meet 	his 	burden 	on 	both 	prongs 	to
succeed. 	Williams 	v. 	Allen, 	598 	F.3d 	778, 	789 	(11th 	Cir. 	2010).
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 17 of 27 PageID#
<pageID>

18
A 	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) 	(internal 	citation
omitted).
The 	proper 	measure 	of 	attorney 	performance 	is 	whether
counsel’s performance was objectively reasonable under prevailing
professional 	norms 	considering 	all 	the 	circumstances. 	Hinton 	v.
Alabama, 	571 	U.S. 	263, 	273 	(2014) 	(per 	curiam). 	This 	judicial
scrutiny 	is 	highly 	deferential, 	and 	courts 	adhere 	to 	a 	strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. 	Strickland, 466 U.S. at 689-
90. 	To be objectively unreasonable, the performance must be such
that 	no 	competent 	counsel 	would 	have 	taken 	the 	action. 	Rose 	v.
McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611
F.3d 1259, 1290 (11th Cir. 2010).
To 	establish 	prejudice 	under 	Strickland, 	the 	defendant 	must
show more than that the alleged errors had “some conceivable effect
on the outcome of the proceeding.” 	Marquard v. Sec’y for Dep’t of
Corr., 	429 	F.3d 	1278, 	1305 	(11th 	Cir. 	2005) 	(quotation 	omitted).
Rather, he “must show that there is a reasonable probability that,
but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceeding 	would 	have 	been 	different.” 	Strickland, 	466 	U.S. 	at
694. 	“A 	reasonable 	probability 	is 	a 	probability 	sufficient 	to
undermine confidence in the outcome.” 	Id.
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 18 of 27 PageID#
<pageID>

19
“When 	a 	term 	of 	supervised 	release 	is 	revoked, 	a 	district
court 	can 	impose 	a 	new 	term 	of 	supervised 	release 	after
imprisonment.” 	United 	States 	v. 	Hollins, 	664 	F. 	App’x 	779, 	780
(11th Cir. 2016) (per curiam) (citing 18 U.S.C. § 3583(h)). 	“The
length 	of 	such 	a 	term 	of 	supervised 	release 	shall 	not 	exceed 	the
term 	of 	supervised 	release 	authorized 	by 	statute 	for 	the 	offense
that resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of supervised
release.” 	18 U.S.C. § 3583(h).
“Chapter 7 of the Sentencing Guidelines governs violations of
supervised release.” 	United States v. Sturkey, 132 F. App’x 306,
307 (11th Cir. 2005) (per curiam). 	Section 7B1.3(g)(2) states:
If supervised release is revoked, the court may include
a requirement that the defendant be placed on a term of
supervised release upon release from imprisonment. 	The
length 	of 	such 	a 	term 	of 	supervised 	release 	shall 	not
exceed 	the 	term 	of 	supervised 	release 	authorized 	by
statute 	for 	the 	offense 	that 	resulted 	in 	the 	original
term 	of 	supervised 	release, 	less 	any 	term 	of
imprisonment 	that 	was 	imposed 	upon 	revocation 	of
supervised release. 	18 U.S.C. § 3583(h).
U.S.S.G. § 7B1.3(g)(2).
Mosley 	acknowledges 	that 	§ 	7B1.3(g)(2) 	“is 	the 	applicable
guideline for the Court to employ when sentencing a defendant for
a supervised release violation,” but he contends that § 7B1.3(g)(2)
“relates 	back 	to 	§ 	5D1.2(b), 	which, 	under 	Amendment 	786, 	holds
that 	the 	maximum 	term 	for 	supervised 	release 	for 	the 	offense 	of
violating 18 USC § 2250 is ‘5 years.’” 	(Doc. 172 at 5). 	However,
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 19 of 27 PageID#
<pageID>

20
Mosley 	appears 	to 	conflate 	the 	advisory 	guideline 	supervised
release term for a violation of § 2250 with the statutory maximum
supervised release term for a § 2250 violation, which is life. 	As
noted 	previously, 	§ 	7B1.3(g)(2) 	authorizes 	district 	courts 	to
impose 	a 	supervised 	release 	term 	as 	part 	of 	the 	sentence 	for
revocation 	of 	supervised 	release 	up 	to 	“the 	term 	of 	supervised
release authorized by statute for the offense that resulted in the
original 	term 	of 	supervised 	release.” 	U.S.S.G. 	§ 	7B1.3(g)(2)
(emphasis added). 	And the length of the term of supervised release
authorized by statute for Mosley’s original § 2250(a) violation is
between five years and life. 	See 18 U.S.C. § 3583(k). 	Therefore,
the district court neither exceeded the statutory maximum nor ran
afoul of the guidelines when it imposed a new lifetime supervised
release term in Mosley’s 2024 revocation proceedings. 	See United
States 	v. 	Mosley, 	2015 	U.S. 	Dist. 	LEXIS 	55959, 	at 	*7, 	2015 	WL
1956444, 	at 	*2 	(S.D. 	Ala. 	Apr. 	29, 	2015) 	(“Mosley’s 	theory 	fails
to 	consider 	U.S.S.G. 	§ 	7B1.3(g)(2), 	which 	authorizes 	district
courts 	to 	impose 	SRT 	as 	part 	of 	the 	sentence 	for 	revocation 	of
supervised 	release, 	up 	to 	‘the 	term 	of 	supervised 	release
authorized by statute for the offense that resulted in the original
term 	of 	supervised 	release.’ 	Again, 	the 	length 	of 	the 	term 	of
supervised release authorized by statute for a violation of § 2250
is 	between 	five 	years 	and 	life, 	so 	this 	Court 	neither 	exceeded
that 	maximum 	nor 	ran 	afoul 	of 	§ 	7B1.3(g)(2) 	by 	imposing 	SRT 	of
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 20 of 27 PageID#
<pageID>

21
life 	in 	these 	revocation 	proceedings.”) 	(internal 	citation
omitted); United States v. Hall, 579 F. App’x 29, 31 (2d Cir. 2014)
(“Where, as here, a defendant violates the conditions of a term of
supervised 	release, 	18 	U.S.C. 	§§ 	3583(e)(3) 	and 	(h) 	authorize 	a
district 	court 	to 	revoke 	the 	original 	term 	of 	supervised 	release
and impose a term of imprisonment to be followed by a new term of
supervised 	release. 	The 	length 	of 	the 	new 	term 	of 	supervised
release ‘shall not exceed the term of supervised release authorized
by 	statute 	for 	the 	offense 	that 	resulted 	in 	the 	original 	term 	of
supervised release, less any term of imprisonment that was imposed
upon 	revocation 	of 	supervised 	release.’ 	Thus, 	here, 	Hall’s 	new
term of supervised release could be as long as a life term, because
18 	U.S.C. 	§ 	3583(k) 	authorizes 	a 	term 	of 	supervised 	release 	of
between 	five 	years 	and 	life 	for 	SORNA 	violations.”) 	(internal
citation omitted); United States v. Lamere, 640 F. App’x 112, 114
(2d 	Cir. 	2016) 	(“LaMere 	contends 	that 	the 	applicable 	Guidelines
provide for only a 5–year term of supervised release. 	See U.S.S.G.
§ 	5D1.2. 	But 	where, 	as 	here, 	the 	court 	imposes 	a 	new 	term 	of
supervision 	after 	revocation 	of 	supervised 	release, 	the 	policy
statement 	in 	U.S.S.G. 	§ 	7B1.3(g)(2) 	controls, 	and 	that 	provision
references 	neither 	§ 	5D1.2 	nor 	a 	recommended 	minimum 	term 	of
supervised 	release.”); 	United 	States 	v. 	King, 	845 	F. 	App’x 	463,
464 	(7th 	Cir. 	2021) 	(“By 	statute 	and 	under 	the 	Sentencing
Guidelines (both use the same language), a new term of supervision
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 21 of 27 PageID#
<pageID>

22
following a revocation of supervised release ‘shall not exceed the
term 	of 	supervised 	release 	authorized 	by 	statute 	for 	the 	offense
that resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of supervised
release.’ 	18 	U.S.C. 	§ 	3583; 	U.S.S.G. 	§ 	7B1.3(g)(2). 	King’s
failure-to-register 	conviction 	under 	§ 	2250 	carried 	a 	mandatory
term of supervised release of five years to life. 	§ 3583(k). 	The
district court’s imposition of one year in prison and eight years
of 	supervised 	release 	was 	permissible 	under 	the 	statute 	and
guidelines.”).
“A lawyer cannot be deficient for failing to raise a meritless
claim.” 	Freeman 	v. 	Atty. 	Gen., 	536 	F.3d 	1225, 	1233 	(11th 	Cir.
2008); see also Denson v. United States, 804 F.3d 1339, 1342 (11th
Cir. 	2015) 	(per 	curiam) 	(“Failing 	to 	make 	a 	meritless 	objection
does not constitute deficient performance.”). 	As set forth above,
both 18 U.S.C. § 3583(h) and U.S.S.G. § 7B1.3(g)(2) authorized the
district 	court 	to 	impose 	a 	new 	lifetime 	supervised 	release 	term
upon 	revocation 	of 	Mosley’s 	supervised 	release. 	Thus, 	Mosley
cannot 	show 	that 	his 	counsel 	performed 	deficiently 	during 	his
revocation 	hearing 	by 	failing 	to 	argue 	either 	that 	the 	maximum
statutory 	term 	of 	supervised 	release 	or 	the 	advisory 	term 	of
supervised release under the guidelines was just five years. 	Nor
can Mosley show that he was prejudiced by his counsel’s failure to
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 22 of 27 PageID#
<pageID>

23
raise these arguments, as there is no reasonable probability that
either argument would have succeeded.
Mosley also cannot establish ineffective assistance based on
his 	counsel’s 	failure 	to 	file 	a 	direct 	appeal 	raising 	these
arguments. 	Mosley 	does 	not 	allege 	that 	he 	requested 	his 	counsel
to 	appeal 	his 	sentence, 	nor 	does 	he 	indicate 	that 	he 	reasonably
demonstrated 	to 	counsel 	that 	he 	was 	interested 	in 	appealing.
Therefore, 	ineffective 	assistance 	could 	only 	be 	premised 	on
counsel’s failure to consult with Mosley about appealing if there
was reason to think that a rational defendant would want to appeal.
See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) (“[C]ounsel has
a constitutionally imposed duty to consult with the defendant about
an appeal when there is reason to think either (1) that a rational
defendant 	would 	want 	to 	appeal 	(for 	example, 	because 	there 	are
nonfrivolous 	grounds 	for 	appeal), 	or 	(2) 	that 	this 	particular
defendant 	reasonably 	demonstrated 	to 	counsel 	that 	he 	was
interested in appealing.”).
Mosley 	has 	not 	identified 	any 	nonfrivolous 	grounds 	for
appeal. 	Mosley asserts that his attorney should have appealed on
the 	basis 	that 	the 	district 	court 	incorrectly 	calculated 	the
guidelines 	range 	for 	the 	imposition 	of 	a 	new 	term 	of 	supervision
following 	the 	revocation 	of 	his 	supervised 	release, 	and 	that
guidelines called for a five-year term of supervised release. 	(See
Doc. 	151 	at 	5; 	Doc. 	151-1 	at 	8; 	Doc. 	172 	at 	5-6). 	However, 	as
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 23 of 27 PageID#
<pageID>

24
previously discussed, this argument would have failed because the
district court was authorized by statute and under the sentencing
guidelines 	to 	impose 	up 	to 	a 	life 	term 	of 	supervised 	release.
Thus, the basis for appeal urged by Mosley is meritless, and Mosley
has identified no other nonfrivolous grounds for appeal. 	Because
no rational defendant would have wanted to file a futile appeal in
these 	circumstances, 	Mosley’s 	counsel 	was 	not 	ineffective 	for
failing 	to 	file 	an 	appeal 	on 	his 	own 	initiative 	or 	failing 	to
consult with Mosley about appealing based on a meritless argument.
In 	sum, 	Mosley’s 	counsel 	did 	not 	provide 	ineffective
assistance 	by 	failing 	to 	raise 	an 	objection 	or 	failing 	to 	file 	a
direct appeal challenging the guidelines calculation regarding the
term 	of 	supervised 	release 	to 	be 	imposed 	upon 	the 	revocation 	of
Mosley’s previous supervised release term. 	Accordingly, Mosley is
entitled to no relief on his claims.
IV. CERTIFICATE OF APPEALABILITY
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	§ 	2255
Proceedings, 	the 	undersigned 	recommends 	that 	a 	certificate 	of
appealability in this case be DENIED. 	See Rules Governing § 2255
Proceedings, 	R. 	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
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 24 of 27 PageID#
<pageID>

25
issues a certificate of appealability. 	See 28 U.S.C. § 2253(c)(1).
A 	certificate 	of 	appealability 	may 	be 	issued 	only 	where 	“the
applicant 	has 	made 	a 	substantial 	showing 	of 	the 	denial 	of 	a
constitutional right.” 	Id. at § 2253(c)(2).
When 	a 	habeas 	petition 	is 	dismissed 	on 	procedural 	grounds
without reaching the merits of an underlying constitutional claim,
a 	certificate 	of 	appealability 	“should 	issue 	[only] 	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 	v. 	McDaniel, 	529 	U.S. 	473, 	484 	(2000). 	When 	a
habeas 	petition 	is 	denied 	on 	the 	merits 	of 	the 	underlying
constitutional 	claims, 	a 	certificate 	of 	appealability 	may 	issue
only 	when 	the 	petitioner 	demonstrates 	“that 	reasonable 	jurists
would 	find 	the 	district 	court’s 	assessment 	of 	the 	constitutional
claims debatable or wrong.” 	Id. at 483-84 (“To obtain a COA under
§ 	2253(c), 	a 	habeas 	prisoner 	must 	make 	a 	substantial 	showing 	of
the 	denial 	of 	a 	constitutional 	right, 	a 	demonstration 	that 	. 	. 	.
includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved
in 	a 	different 	manner 	or 	that 	the 	issues 	presented 	were 	adequate
to 	deserve 	encouragement 	to 	proceed 	further.”) 	(citation 	and
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 25 of 27 PageID#
<pageID>

26
internal 	quotation 	marks 	omitted); 	accord 	Miller-El 	v. 	Cockrell,
537 U.S. 322, 336 (2003).
After 	reviewing 	the 	issues 	presented 	in 	light 	of 	the
applicable standards, the Court concludes that reasonable jurists
would not find the Court’s disposition of Mosley’s claims wrong or
debatable, 	and 	that 	none 	of 	the 	issues 	presented 	are 	adequate 	to
deserve encouragement to proceed further. 	As a result, Mosley is
not 	entitled 	to 	a 	certificate 	of 	appealability 	and 	should 	not 	be
permitted to proceed in forma pauperis on appeal.
V. CONCLUSION
For the foregoing reasons, it is recommended that Petitioner
Franklin 	Mosley’s 	motion 	under 	28 	U.S.C. 	§ 	2255 	to 	vacate, 	set
aside, 	or 	correct 	his 	sentence 	(Doc. 	151) 	be 	DENIED, 	that 	this
action 	be 	DISMISSED 	with 	prejudice, 	and 	that 	judgment 	be 	entered
in 	favor 	of 	the 	Respondent, 	the 	United 	States 	of 	America, 	and
against the Petitioner, Franklin Mosley. 	The undersigned further
submits that Petitioner Mosley is not entitled to the issuance of
a 	certificate 	of 	appealability 	and 	should 	not 	be 	permitted 	to
proceed in forma pauperis on appeal.
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
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 26 of 27 PageID#
<pageID>

27
written objections with the Clerk of this Court. 	See 28 U.S.C. §
636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72(b); 	S.D. 	Ala. 	GenLR 	72(c). 	The
parties 	should 	note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a]
party 	failing 	to 	object 	to 	a 	magistrate 	judge’s 	findings 	or
recommendations 	contained 	in 	a 	report 	and 	recommendation 	in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to 	factual 	and 	legal 	conclusions 	if 	the 	party 	was
informed of the time period for objecting and the consequences on
appeal 	for 	failing 	to 	object. 	In 	the 	absence 	of 	a 	proper
objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 	11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific 	finding 	or 	recommendation 	to 	which 	objection 	is 	made,
state 	the 	basis 	for 	the 	objection, 	and 	specify 	the 	place 	in 	the
Magistrate 	Judge’s 	report 	and 	recommendation 	where 	the 	disputed
determination is found. 	An objection that merely incorporates by
reference 	or 	refers 	to 	the 	briefing 	done 	by 	the 	Magistrate 	Judge
is not specific.
DONE this 20th day of August, 2025.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cr-00063-TFM-B Doc# 174 Filed 08/20/25 Page 27 of 27 PageID#
<pageID>