USA v. Jackson

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRYAN KEITH JACKSON, 	)
BOP Reg. # 17995-003, 	)
Movant, 	)
) 	CIVIL ACTION NO. 1:22-00010-WS-N
v. 	)
)CRIMINAL ACTION NO. 1:20-00022-WS-N
UNITED STATES OF AMERICA, )
Respondent. 	)
REPORT AND RECOMMENDATION
BRYAN KEITH JACKSON, a federal prisoner proceeding without counsel
(pro se), filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255
dated January 3, 2022 (Doc# 23), seeking relief from the judgment entered against
him in the above-numbered criminal action.1 The assigned District Judge has
referred 	Jackson’s 	§ 	2255 	motion 	to 	the 	undersigned 	Magistrate 	Judge 	for
appropriate action under 28 U.S.C. § 636(a)-(b), Rule 10 of the Rules Governing
Section 2255 Proceedings for the United States District Courts, and S.D. Ala. GenLR
72(a). See S.D. Ala. GenLR 72(b); (1/11/2022 electronic reference notation). Under
S.D. Ala. GenLR 72(a)(2)(R), the undersigned is authorized to require responses,
issue orders to show cause and any other orders necessary to develop a complete
record, and to prepare a report and recommendation to the District Judge as to
1 All “Doc#” citations herein refer to the docket of the above-numbered criminal
action. The companion civil action has been opened for administrative and statistical
purposes only, and does not contain or receive any filings.
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appropriate disposition of the § 2255 motion, in accordance with 28 U.S.C. § 636(b)(1)
and Rule 8(b) of the Rules Governing Section 2255 Proceedings.
Upon initial consideration of the § 2255 motion under Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States District Courts, the
undersigned finds that it plainly appears from the motion and the record of prior
proceedings that Jackson is not entitled to relief on any claim, and that his motion is
therefore due to be DENIED and DISMISSED with prejudice.
I. 	Procedural Background
On January 30, 2020, the grand jury for this district issued a 7-count
indictment against Jackson charging various drug and firearms offenses. (Doc# 1).
On March 5, 2020, Jackson was appointed counsel and arraigned on the indictment,
pleading not guilty to all charges. (See Docs# 5, 7). However, on June 22, 2020,
Jackson changed his plea and entered a plea of guilty to Counts 1, 4, and 5, pursuant
to a written plea agreement with the Government. (See Docs# 45, 50). On December
29, 2020, the Court sentenced Jackson to a total term of imprisonment of 160 months,
a subsequent total term of supervised release of 5 years, and a monetary assessment.
(See 	Docs# 	69, 	71). 	The 	remaining 	counts 	were 	dismissed 	on 	motion 	of 	the
Government; written judgment was entered on January 8, 2021, and was amended
on January 21, 2021, to correct a clerical error. (See id.). No party directly appealed
that judgment within the time permitted by law. See Fed. R. App. P. 4(b). Jackson is
deemed to have filed the present § 2255 motion, his first, on January 3, 2022, the date
he signed it. See Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015) (per
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curiam) (“Under [the Antiterrorism and Effective Death Penalty Act]’s statute of
limitations, a federal prisoner must ordinarily file his § 2255 petition within one year
of the date on which his judgment of conviction becomes final. We apply the prison
mailbox rule, under which a pro se prisoner's court filing is deemed filed on the date
it is delivered to prison authorities for mailing. We assume, absent evidence to the
contrary, that a prisoner delivered a filing to prison authorities on the date that he
signed it.” (citations and quotations omitted)).
II. 	Legal Standards
a. 	General Standards of Review under § 2255
Title 28 U.S.C. § 2255 “permits a federal prisoner to bring a collateral challenge
by moving the sentencing court to vacate, set aside, or correct the sentence.”
Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). However,
“[o]nce the defendant’s chance to appeal has been waived or exhausted,” a court is
“entitled to presume he stands fairly and finally convicted, especially when, as here,
he already has had a fair opportunity to present his federal claims to a federal forum.”
United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).
“[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct
appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam)
(citing Frady, 456 U.S. at 165 (collecting cases)). “Because collateral review is not a
substitute for a direct appeal, the general rules have developed that: (1) a defendant
must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255
is reserved for transgressions of constitutional rights and for that narrow compass of
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other injury that could not have been raised in direct appeal and would, if condoned,
result in a complete miscarriage of justice.” Id. at 1232 (internal citations, quotations,
and footnote omitted).
Once a petitioner files a § 2255 motion, “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to
no relief, the court shall ... grant a prompt hearing thereon, determine
the issues and make findings of fact and conclusions of law with respect
thereto.” [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary
hearing if he “alleges facts that, if true, would entitle him to relief.”
Aron[ v. United States], 291 F.3d [708,] 715[ (11th Cir. 2002)] (quoting
Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “[A]
petitioner 	need 	only 	allege—not 	prove—reasonably 	specific, 	non-
conclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6.
However, a district court need not hold a hearing if the allegations are
“patently 	frivolous,” 	“based 	upon 	unsupported 	generalizations,” 	or
“affirmatively contradicted by the record.” Holmes, 876 F.2d at 1553
(quoting United States v. Guerra, 588 F.2d 519, 520–21 (5th Cir. 1979));
see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004)
(“Because the ... affidavits submitted by Lynn amount to nothing more
than mere conclusory allegations, the district court was not required to
hold an evidentiary hearing on the issues and correctly denied Lynn's §
2255 motion.”).
Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord Diveroli v. United
States, 803 F.3d 1258, 1263 (11th Cir. 2015). In making this determination, a court
must “liberally construe pro se filings, including pro se applications for relief pursuant
to § 2255.” Winthrop-Redin, 767 F.3d at 1215.
b. 	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, 118 S. Ct. 1604140 L. Ed. 2d 828 (1998) (quoting United
States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979)). “ ‘A
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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.’ ” United States v. De La Garza, 516 F.3d 1266,
1271 (11th Cir. 2008) (quoting Wilson v. United States, 962 F.2d 996, 997 (11th Cir.
1992) (per curiam)). See also, e.g., United States v. Brown, 752 F.3d 1344, 1347 (11th
Cir. 2014) (“‘A guilty plea, since it admits all the 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, 104 S. Ct. 2543, 81 L. Ed. 2d 437
(1984). Therefore, when, as here, a § 2255 motion is filed collaterally challenging
convictions obtained pursuant to a guilty plea, “the inquiry is ordinarily confined to
whether the underlying plea was both counseled and voluntary.” United States v.
Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 102 L. Ed. 2d 927 (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, 90 S.
Ct. 1463, 25 L. Ed. 2d 747 (1970)).
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c. 	Ineffective Assistance of Counsel
The 	Sixth 	Amendment 	gives 	criminal 	defendants 	the 	right 	to 	effective
assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S.
668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “[F]ailure to raise an ineffective-
assistance-of-counsel claim on direct appeal does not bar the claim from being
brought in a later, appropriate proceeding under § 2255.” Massaro v. United States,
538 U.S. 500, 509, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003). Indeed, “in most cases
a motion brought under § 2255 is preferable to direct appeal for deciding claims of
ineffective assistance.” Id. at 504. See also United States v. Curbelo, 726 F.3d 1260,
1267 (11th Cir. 2013) (“An ineffective assistance claim should usually be raised in a
motion under 28 U.S.C. § 2255.” (citing United States v. Patterson, 595 F.3d 1324,
1328 (11th Cir. 2010))). “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
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prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation
omitted). See also Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (“A
habeas petitioner claiming ineffective assistance of counsel must carry his burden on
both Strickland prongs, and a court need not address both prongs if the defendant
has made an insufficient showing on one.”); Johnson v. Alabama, 256 F.3d 1156, 1176
(11th Cir. 2001) (“The petitioner bears the burden of proof on the ‘performance’ prong
as well as the ‘prejudice’ prong of a Strickland claim, and both prongs must be proved
to prevail.”). “The Strickland test is not easily met; … ‘the cases in which habeas
petitioners can properly prevail on the ground of ineffective assistance of counsel are
few and far between.[]’ ” Johnson, 256 F.3d at 1176 (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, 46 F.3d at 1518. Accord, e.g., Burt v. Titlow, 571
U.S. 12, 24, 134 S. Ct. 10, 187 L. Ed. 2d 348 (2013) (“[T]he Sixth Amendment does not
guarantee the right to perfect counsel; it promises only the right to effective
assistance…”). “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
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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,”…in order to prove
deficient performance, “a petitioner must establish that no competent
counsel would have taken the action that his counsel did take.” Chandler
v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).
Under the second, or “prejudice,” prong of Strickland, a petitioner must
“affirmatively 	prove 	prejudice” 	by 	showing 	that 	counsel's 	errors
“actually had an adverse effect on the defense.” 466 U.S. at 693, 104 S.
Ct. at 2067. This requires a showing of more than “some conceivable
effect on the outcome of the proceeding.” Id. Instead, the petitioner
“must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. 	A 	reasonable 	probability 	is 	a 	probability 	sufficient 	to
undermine confidence in the outcome.” 	Id. at 694, 104 S. Ct. at 2068.
Although this standard is difficult to meet, it is significant that a
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). “The reasonableness of
counsel's performance is to be evaluated from counsel’s perspective at the time of the
alleged error and in light of all the circumstances. In making the competency
determination, the court should keep in mind that counsel's function, as elaborated
in prevailing professional norms, is to make the adversarial testing process work in
the particular case.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91
L. Ed. 2d 305 (1986) (citing Strickland, 466 U.S. at 689-91) (citations and quotations
omitted).
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“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. 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 ineffective-
assistance 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
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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.
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.
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
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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).2 In claiming prejudice under Strickland and Hill, “[a] movant must [also]
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, 130 S. Ct. 1473, 176
L. Ed. 2d 284 (2010)).
2 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 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.”).
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III. 	Analysis
a. Defective Warrant
Jackson first argues that his trial counsel rendered ineffective assistance by
failing to file a motion to suppress the evidence seized from his residence on the
grounds that the warrant authorizing the search “was not returned and signed by the
judge as stated in the court statues [sic] for search warrant procedure[,]” and that
“the search warrant should have been void and the evidence should have been thrown
out.” (Doc# 73, PageID.220-221). Jackson further claims that his counsel “pressed
[him] to sign a guilty plea before providing [Jackson] with the motion of discover [sic]
that contained the search warrant[,]” and that counsel “didn’t file a motion to
suppress the evidence like [Jackson] asked.” (Id., PageID.221, 223).
Jackson did not include a copy of the search warrant with his § 2255 motion,
and it is not otherwise in the record. However, the factual resume included with
Jackson’s plea agreement, which he agreed was “true and correct,” states that the
“Mobile police applied for” and “executed” the search warrant, indicating it was issued
by an Alabama state court. (See Doc# 45, PageID.90). Alabama statute states that
“[a] search warrant must be executed and returned to the judge or the magistrate by
whom it was issued within 10 days after its date; if not executed after such time, it is
void.” Ala. Code § 15-5-12. Similarly, Alabama Rule of Criminal Procedure 3.10,
which “is taken from and modifies” § 15-5-12, among other Alabama statutes,
provides, in relevant part, as follows: a search warrant “shall command [the serving
law enforcement] officer to search, within a specified time not to exceed ten (10) days,
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the person or place named for the property specified and to bring an inventory of said
property before the court issuing the warrant. The warrant shall designate the judge
or magistrate to whom an inventory of the property specified shall be returned. The
judge or magistrate shall endorse the warrant, showing the hour, date, and the name
of the law enforcement officer to whom the warrant was delivered for execution, and
a copy of such warrant and the endorsement thereon shall be admissible in evidence
in the courts.” Ala. R. Crim. P. 3.10 & committee comments.
However, the United States Supreme Court has held that violations of “state
law alone…do[] not require the exclusion of evidence obtained from a constitutionally
permissible arrest[,]” as “it is not the province of the Fourth Amendment to enforce
state law.” Virginia v. Moore, 553 U.S. 164, 178, 128 S. Ct. 1598, 170 L. Ed. 2d 559
(2008). Here, Jackson challenges the subject search warrant solely on a violation of
state law, and has not argued that the search of his residence was constitutionally
impermissible. Moreover, Jackson has failed to show that suppression would be
warranted even under state law, as Alabama appellate courts have long held that
“[t]he fact that the warrant was not subsequently returned did not destroy its validity
or prevent a justification of the search made thereunder.” Love v. Riddick, 146 So.
617, 618 (Ala. 1933). Accord Donovan v. State, 359 So. 2d 1181, 1183–84 (Ala. Crim.
App. 1978) (“[W]e hold that the failure to execute and return a warrant within ten
days does not invalidate the search and seizure or render inadmissible into evidence
the fruits seized under that warrant which was executed within the ten-day period
after its issuance as required by Title 15, Section 111, Code 1940 (now Section 15-5-
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12, Code 1975).”); McCord v. State, 373 So. 2d 1242, 1244 (Ala. Crim. App. 1979) (“In
this case the return portion of the warrant is completed and signed by the appellant
and Officer Pickett, but it is not signed and dated by the magistrate. There was no
evidence presented that the warrant was never returned, only that the magistrate's
signature and date was missing…The instant warrant was executed within the ten
day requirement and was not invalidated by lack of the magistrate’s signature and a
date on the return.” (citing Donovan)); State v. C.B.D., 71 So. 3d 717, 718 (Ala. Crim.
App. 2009) (“Although § 15–5–12, Ala. Code 1975, clearly provides that a warrant is
void if not executed in 10 days, it does not provide for the invalidation of the warrant
upon its failure to be returned.” (citing Love and Donovan)).
The Alabama Court of Criminal Appeals has also “consistently stated that
ministerial defects do not nullify other search-warrant procedures and ha[s] upheld
such search warrants, absent a showing of prejudice.” C.B.D., 71 So. 3d at 719 (citing
cases, including those holding that violations of Alabama Rule 3.10 did not void the
warrants). For instance, prejudice could result “when the original warrant is neither
returned nor available for inspection by a defendant's counsel, [as] the defendant's
ability to raise challenges to the issuance of the warrant and the manner in which it
was executed may be compromised.” Id. Here, Jackson admits that both he and his
counsel were provided a copy of the search warrant as part of discovery (see Doc# 73,
PageID.221), 	and 	he 	has 	not 	otherwise 	alleged 	anything 	to 	indicate 	that 	the
purported failure of the warrant to be properly returned and signed prejudiced him.
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Because Jackson has failed to show that a motion to suppress based on the
alleged state-law defect in the search warrant had any reasonable chance of success,
his counsel was not ineffective for failing to file such a motion. See United States v.
Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (counsel “is not ineffective for failing to
raise claims reasonably considered to be without merit” (quotation omitted)); 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.”).
b. Conspiracy Count
Jackson next argues that he was wrongfully “convicted for a conspiracy in
which the defendant had no co-defendant.” (Doc# 73, PageID.2224). This statement
is wrong. Only Count 7 of the indictment charged a conspiracy offense, under 21
U.S.C. § 846, but Jackson did not plead guilty to that count, and it was dismissed on
motion of the Government at sentencing in accordance with the terms of Jackson’s
plea agreement. See supra. Regardless, a defendant need not be indicted along with
his alleged co-conspirators in order to be found guilty of conspiracy. See Rogers v.
United States, 340 U.S. 367, 375, 71 S. Ct. 438, 95 L. Ed. 344 (1951) (“Of course, at
least two persons are required to constitute a conspiracy, but the identity of the other
members of the conspiracy is not needed, inasmuch as one person can be convicted of
conspiring with persons whose names are unknown.”); United States v. Davis, 679
F.2d 845, 851 (11th Cir. 1982) (“The existence of the conspiracy agreement rather
than the identity of those who agree is the essential element to prove conspiracy.”);
United States v. Camara, 908 F.3d 41, 46 (4th Cir. 2018) (“ ‘The existence of the
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conspiracy, rather than the particular identity of the conspirators, is the essential
element of the crime.’ United States v. Am. Waste Fibers Co., 809 F.2d 1044, 1046 (4th
Cir. 1987) (per curiam) (citing United States v. Davis, 679 F.2d 845, 851 (11th Cir.
1982) ). Indeed, the government need not identify any co-conspirators. ‘While two
persons are necessary to constitute a conspiracy, “one person can be convicted of
conspiring with persons whose names are unknown.” ’ Id. (quoting Rogers v. United
States, 340 U.S. 367, 375, 71 S. Ct. 438, 95 L. Ed. 344 (1951)).”); United States v.
Allen, 613 F.2d 1248, 1253 (3d Cir. 1980) (noting that the Rogers rule “has been
applied to conspiracies involving drug activity” (citing United States v. Rivera Diaz,
538 F.2d 461, 465 (1st Cir. 1976))). Accordingly, Jackson is due no relief for being
charged for conspiracy jointly with any co-defendants.
c. 	Other Claims
Jackson also conclusorily alleges that he “was told by counsel that this case
had many discrepancies but the counsel never notified [him] of such issues.” (Doc#73,
PageID.225). To the extent Jackson is referencing other “discrepancies” not already
addressed above, he has failed to allege any facts indicating what those might be, and
“unsupported generalizations” are insufficient to warrant an evidentiary hearing,
much less relief, under § 2255. Winthrop-Redin, 767 F.3d at 1216.
Finally, Jackson alleges that his “counsel didn’t show up for [him] at the video
hearing when [Jackson] plead [sic] guilty.” (Doc# 73, PageID.225). Instead, “[a]nother
lawyer came who [Jackson] was not familiar with.” (Id.). The record reveals that S.
Joshua Briskman was initially appointed to represent Jackson. However, on June 17,
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2020, five days before Jackson’s guilty plea, attorney Michael Hickman entered an
appearance as “co-counsel” for Jackson. (Doc# 46, PageID.93). Two days later,
Briskman filed a motion to allow Hickman “to appear in his stead for the Plea for
Defendant Jackson[,]” representing that “Mr. Hickman has been briefed on the
circumstances of the case and has been introduced to Defendant Jackson via video
conference who has consented to Attorney Hickman standing in for the undersigned
at the Plea Hearing.” (Doc# 48, PageID.97). The District Judge granted that motion
(see Doc# 49), and Hickman represented Jackson at the June 22, 2020 change-of-plea
hearing. (See Doc# 50).
Jackson has not alleged any specific facts indicating that Hickman performed
deficiently when he stood in for Briskman at Jackson’s change-of-plea hearing, or that
but for any such errors he would have refused to plead guilty and insisted on going
to trial. The plea agreement (Doc#45) indicates that it was signed by Jackson almost
a week before the change-of-plea hearing, on June 13, 2020, and was co-signed by
Briskman 3 days later. Apart from the meritless issues addressed above, Jackson has
not specifically identified anything Briskman failed to discuss with him regarding the
plea agreement that Hickman was allegedly unprepared to address at the change-of-
plea hearing. Once again, Jackson’s reliance on “unsupported generalizations” does
not entitle him to an evidentiary hearing or relief under § 2255.
As 	all of Jackson’s claims are without merit, his § 2255 motion is due to be
DENIED and DISMISSED with prejudice.
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d. 	Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant” in a § 2255 proceeding. Rule 11(a) of the
Rules Governing Section 2255 Proceedings. “Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the court of appeals from
the final order in a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A).
Where the district court “has rejected the constitutional claims on the merits,
the showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120
S. Ct. 1595, 146 L. Ed. 2d 542 (2000). See also Miller-El v. Cockrell, 537 U.S. 322, 336,
123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (“Under the controlling standard, a
petitioner must show that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” (citations omitted and punctuation modified)). In all cases, “[a] certificate of
appealability may issue ‘only if the applicant has made a substantial showing of the
denial of a constitutional right.’ ” Spencer v. United States, 773 F.3d 1132, 1137 (11th
Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)). “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). However, “a COA
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does not require a showing that the appeal will succeed.” Id. at 337.
Upon 	due 	consideration, 	the 	undersigned 	finds 	that 	Jackson 	should 	be
DENIED a certificate of appealability in conjunction with the dismissal of the
present § 2255 motion because he has failed to make a substantial showing of the
denial of a constitutional right for any of the grounds raised, and jurists of reason
would not find it debatable whether the Court is correct in finding those grounds
meritless.3
e. 	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. § 1915(a)(3).4
A party demonstrates good faith by seeking appellate review of any issue
that is not frivolous when examined under an objective standard. See
Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed.
2d 21 (1962). An issue is frivolous when it appears that “the legal
theories are indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393
3 	Rule 11(a) of the Rules Governing Section 2255 Proceedings 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
regarding the issuance of a certificate of appealability, the objecting party may bring
this argument to the attention of the district judge in the objections permitted to this
report and recommendation, see infra.
Should the Court ultimately deny a certificate of appealability as to some or
all grounds for relief, the movant “may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22.”
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District
Courts.
4 A district court’s finding “that an appeal would not be in good faith because no
certificate of appealability had been issued . . . is not enough to explain why the appeal
on the merits would not be in good faith, because the standard governing the issuance
of a certificate of appealability is not the same as the standard for determining
whether an appeal is in good faith. It is more demanding.” Walker v. O'Brien, 216
F.3d 626, 631 (7th Cir. 2000).
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(11th Cir. 1993) (citations omitted). In other words, an IFP action is
frivolous, and thus not brought in good faith, if it is “without arguable
merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th
Cir. 	2001). 	More 	specifically, 	“arguable 	means 	capable 	of 	being
convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir.
1991) (internal quotations and citations omitted). Nevertheless, where
a “claim is arguable, but ultimately will be unsuccessful,” it should be
allowed to proceed. Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 515
(11th Cir. 1991).
Ghee v. Retailers Nat. Bank, 271 F. App’x 858, 859-60 (11th Cir. 2008) (per curiam)
(unpublished).
Having considered the issues raised as set forth above, the undersigned will
recommend the Court certify that any appeal by Jackson of the denial of the present
§ 2255 motion would be without merit and therefore not taken in good faith, thus
denying him entitlement to appeal in forma pauperis.5
IV. 	Conclusion & Recommendations
In accordance with the foregoing analysis, the undersigned RECOMMENDS
that Jackson’s § 2255 motion dated January 3, 2022 (Doc# 73), be DENIED and
DISMISSED with prejudice under Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts; that Jackson be DENIED a
Certificate of Appealability in relation to the dismissal of the subject § 2255 motion;
and that judgment be accordingly set out by separate document under Federal Rule
5 Should the Court adopt this recommendation and deny leave to appeal in forma
pauperis, the petitioner may file a motion to proceed on appeal in forma pauperis with
the Eleventh Circuit Court of Appeals in accordance with Federal Rule of Appellate
Procedure 24(a)(5).
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of Civil Procedure 58.6 The undersigned further RECOMMENDS that the Court
certify that any appeal by Jackson of the denial of the present § 2255 motion would
be without merit and therefore not taken in good faith, thus denying him entitlement
to appeal in forma pauperis.
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 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); Rule 8(b) of the
Rules Governing Section 2255 Proceedings for the United States District Courts; 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
6 See Rule 12 of the Rules Governing Section 2255 Proceedings for the United States
District Courts (“The Federal Rules of Civil Procedure…, to the extent that they are
not inconsistent with any statutory provision or these rules, may be applied to a
proceeding under these rules.”); Sassoon v. United States, 549 F.2d 983 (5th Cir. 1977)
(applying Rule 58’s separate-document requirement in a § 2255 proceeding); United
States v. Hassebrock, 21 F.4th 494, 497 (7th Cir. 2021) (in holding that Rule 58
applied to coram nobis proceedings, noting that “[m]any [other] circuits have applied
Rule 58 to § 2255 motions”).
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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.
NOTICE TO PRO SE § 2255 MOVANT
Movant is advised that “[a]ll persons proceeding pro se shall be bound by, and
must comply with, all Local Rules of this Court,” as well as the applicable federal
rules of procedure, “unless excused by Court order.” S.D. Ala. GenLR 83.5(a). Federal
Rule of Civil Procedure 11 requires that any paper filed with the Court be signed by
him personally and provide his “address, e-mail address, and telephone number.”7
Fed. R. Civ. P. 11(a). See also Rule 12 of the § 2255 Rules (“The Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure, to the extent that they are
not inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.”). “The court must strike an unsigned paper unless the
7 Movant must handwrite his signature/mark (as opposed to, for example, typing his
name) in order to satisfy Rule 11(a). See Becker v. Montgomery, 532 U.S. 757, 763–
64, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001) (“Becker maintains that typing one's
name satisfies the signature requirement and that his original notice of appeal,
containing his name typed above “(Counsel of Record),” met Civil Rule 11(a)’s
instruction…[H]owever, we are not disposed to extend the meaning of the word
‘signed,’ as that word appears in Civil Rule 11(a), to permit typed names. As Rule
11(a) is now framed, we read the requirement of a signature to indicate, as a signature
requirement 	commonly 	does, 	and 	as 	it 	did 	in 	John 	Hancock's 	day, 	a 	name
handwritten (or a mark handplaced).”).
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omission 	is 	promptly 	corrected 	after 	being 	called 	to 	the 	attorney's 	or 	party's
attention.” Fed. R. Civ. P. 11(a).
Movant is also advised that, under this Court’s local rules, “[a]ny person
proceeding pro se must, at all times during the pendency of the action to which he or
she is a party, keep the Clerk informed of his or her current address and … must
promptly notify the Clerk of any change of address … Failure to comply with this
Rule may result in sanction, including dismissal of a pro se plaintiff’s action…” S.D.
Ala. GenLR 83.5(b). Additionally, any “request for Court action must be presented by
motion and may not be presented by informal means such as a letter.” S.D. Ala.
GenLR 7. See also Fed. R. Civ. P. 7(b).
DONE this the 4th day of December 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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