USA v. Thomas

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE DION THOMAS, 	)
BOP Reg. # 12754-003, 	)
Movant, 	)
) 	CIVIL ACTION NO. 1:23-00039-TFM-N
v. 	)
)CRIMINAL ACTION NO. 1:21-00196-TFM-N
UNITED STATES OF AMERICA, )
Respondent. 	)
REPORT AND RECOMMENDATION
WILLIE DION THOMAS, 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 17, 20231 (Doc# 23), seeking relief from the judgment entered against
him in the above-numbered criminal action.2 In response to the Court’s February 8,
1 Though the initial § 2255 motion is dated “17th of January 2022” (see Doc# 23,
PageID.127, 129) the undersigned assumes Thomas’s use of the year 2022, rather
than 2023, to be a scrivener’s error, based on the motion’s postmark date, January
23, 2023 (see id., PageID.130), and the fact that Thomas had not been sentenced as
of January 17, 2022 (see Doc# 20).
2 Unless otherwise indicated, 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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2023 order directing him to do so (Doc# 24), Thomas filed an amended § 2255 motion
dated March 3, 2023, on this Court’s form3 (Doc# 25).4
In April 2024, Thomas filed a handwritten document entitled “Relevant Motion
to Amend Sentence” (Doc# 26), which the assigned District Judge has construed as
“part of his habeas petition under § 2255” and referred to the undersigned “as part of
the § 2255 proceedings.” (Doc# 30, PageID.156). Thus, Thomas’s operative § 2255
motion is his court-form motion dated March 3, 2023, as supplemented by his
“Relevant Motion to Amend Sentence.” (Docs# 25, 26).
The assigned District Judge has referred Thomas’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); (1/31/2023,
3/8/2023, & 6/21/2024 electronic reference notations; Doc# 30). 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 appropriate
3 See S.D. Ala. CivLR 9(a) (“All persons…moving under 28 U.S.C. § 2255 to challenge
a sentence imposed by this Court, must file their…motion with the Clerk using forms
available 	from 	the 	Court.”); 	Rule 	2(c) 	of 	the 	Rules 	Governing 	Section 	2255
Proceedings for the United States District Courts (“The motion must substantially
follow either the form appended to these rules or a form prescribed by a local district-
court rule.”).
4 The Court’s order directing Thomas to refile his motion on the Court’s form
expressly advised him that his “refiled § 2255 motion shall supersede his initial §
2255 motion (Doc# 23). Therefore, [he] must include all claims for relief he may wish
to raise, with supporting allegations, in his refiled motion, and may not further rely
on his initial motion.” (Doc# 24).
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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 Thomas 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 November 19, 2021, in the above-styled criminal case, Thomas, represented
by retained counsel, was arraigned on and pleaded guilty to an information charging
him with three counts of possession with intent to distribute methamphetamine
(actual) in violation of 21 U.S.C. § 841(a)(1), pursuant to a plea agreement. (See Docs#
1, 8, 9). These offenses were also the basis for instituting supervised-release
revocation proceedings against Thomas in S.D. Ala. Case No. 1:12-cr-00148. On June
23, 	2022, 	the 	Court 	sentenced 	Thomas 	to 	concurrent 	terms 	of 	262 	months’
imprisonment on each count of the information, along with subsequent concurrent
terms of supervised release and a monetary assessment. (Doc# 20). That same day,
in 	the 	revocation 	proceedings, 	the 	Court 	sentenced 	Thomas 	to 	60 	months’
imprisonment, to run consecutively to the sentence imposed on the information. (See
id.; 1:12-cr-00148 Doc. 53). Written judgment was entered in both cases the following
day, and no party directly appealed that judgment within the time permitted by law.
See Fed. R. App. P. 4(b).
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Thomas filed his initial § 2255 motion in January 2023, filed his operative
court-form § 2255 motion in response to the Court’s February 8, 2023 order, then
supplemented his operative petition with his “Relevant Motion to Amend Sentence”
See supra.
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
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).
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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
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,
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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)).
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-
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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
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
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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
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
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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).
“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
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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
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.
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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
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
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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).5 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)).
III. 	Analysis
a. Career Offender
In his operative § 2255 motion, Thomas most prominently argues that the
Court improperly sentenced him as a career offender under the U.S. Sentencing
5 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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Guidelines because the two predicate prior felony convictions should have been
counted as one offense.6 The undersigned disagrees.
Under the Sentencing Guidelines, “[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) the defendant has
at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). As used in § 4B1.1, “[t]he term ‘two prior
felony 	convictions’ 	means 	(1) 	the 	defendant 	committed 	the 	instant 	offense 	of
conviction subsequent to sustaining at least two felony convictions of either a crime
of violence or a controlled substance offense (i.e., two felony convictions of a crime of
violence, two felony convictions of a controlled substance offense, or one felony
conviction of a crime of violence and one felony conviction of a controlled substance
offense), 	and 	(2) 	the 	sentences 	for 	at 	least 	two 	of 	the 	aforementioned 	felony
convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c).”
U.S.S.G. 4B1.2(c). For purposes of § 4A1.1, “[p]rior sentences always are counted
separately if the sentences were imposed for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the first offense prior to
committing the second offense). If there is no intervening arrest, prior sentences are
counted separately unless (A) the sentences resulted from offenses contained in the
6 This was the sole issue raised in Thomas’s initial § 2255 motion (Doc# 23).
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same charging instrument; or (B) the sentences were imposed on the same day.”
U.S.S.G. § 4A1.2(a)(2).
The Presentence Investigation Report (PSR) prepared by the U.S. Probation
Office for Thomas’s sentencing in the above-styled criminal action (Doc# 15), which
the Court adopted without change at sentencing (see Doc# 21), identified the following
two offenses as career-offender predicates:
1. 	Thomas’s guilty plea to one count of possession of marijuana, first degree, in
the Circuit Court of Mobile County, Alabama (Case No. CC13-1156), for which
he was sentenced on November 21, 2013; and
2. 	Thomas’s guilty plea to Count 3 of the indictment in Case No. 1:12-cr-00148 in
this Court, charging an offense of possession with intent to distribute crack
cocaine, for which he was sentenced on October 15, 2012.
(See Doc# 15 ¶¶ 31-32, PageID.97-98). The PSR indicates that both offenses occurred
“on or about” the same day, April 9, 2012. (See id.). Thus, they were not “separated
by an intervening arrest,” and the second sentence of § 4A1.2(a)(2) applies in
determining whether those offenses were to be counted separately.
Subparagraph (B) of § 4A1.2(a)(2) does not apply because the sentences for the
two career-offender predicate offenses were not imposed on the same day, and
Thomas does not argue otherwise. Rather, he appears to invoke subparagraph (A),
claiming that “the sentences resulted from offenses contained in the same charging
instrument.”
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By way of background, the indictment in S.D. Ala. Case No. 1:12-cr-00148
charged Thomas with the following four counts:
1. 	Count 1—felon in possession of a firearm
2. 	Count 2—possession with intent to distribute marijuana
3. 	Count 3—possession with intent to distribute crack cocaine
4. 	Count 4—using, carrying, or possessing a firearm in furtherance of a drug
trafficking felony
(1:12-cr-00148 PageID.1-3).
In that case, Thomas agreed to plead guilty to Counts 3 and 4, with the
remaining counts being dismissed on motion of the Government at sentencing on
January 23, 2013. (See 1:12-cr-00148 PageID.115). As Thomas sees it, the State of
Alabama then “elected to pursue counts [sic] #2 and [Thomas] was charged and
sentenced for count #2 by the State of Alabama.” (Doc# 25, PageID.139). Thomas fails
to appreciate, however, that the State of Alabama did not “take over” prosecution of
Count 2 of the indictment in 1:12-cr-00148 when the Government moved to dismiss
it. Indeed, the State could not, as all four counts of that indictment charged offenses
under federal law, and state courts lack jurisdiction to adjudicate federal criminal
offenses. See 18 U.S.C. § 3231 (“The district courts of the United States shall have
original jurisdiction, exclusive of the courts of the States, of all offenses against the
laws of the United States.”). Rather, the State of Alabama used the conduct
underlying Count 2 of the federal indictment to issue its own indictment (or other
charging instrument) charging an offense under state law.
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Thus, while both charges were predicated on the same conduct, they were not
“contained in the same charging instrument[,]” and as such were properly counted as
“two prior felony convictions” for purposes of the career offender enhancement. See
United States v. Herrington, 350 F. App'x 363, 370 (11th Cir. 2009) (per curiam)
(unpublished) (“Herrington asserts that he does not have two prior felony convictions
for crimes of violence because the offenses outlined in paragraphs 32-34 of the PSI
should be considered one offense…The offenses in these paragraphs were not
contained in the same charging instrument because they were prosecuted in different
jurisdictions—United States District Court for the Southern District of Indiana,
United States District Court for the Southern District of California, and San
Bernadino Superior Court.”); United States v. Quinones-Figueroa, 417 F. App'x 893,
894 (11th Cir. 2011) (per curiam) (unpublished) (“Quiñones–Figueroas argues that
these two offenses should have been treated as a single offense because they each
derived from the same set of underlying facts. However, Quiñones–Figueroa concedes
that there were two separate indictments and that he was sentenced for each offense
on two different days. These concessions are fatal to his argument[ under] the plain
and unambiguous language of § 4A1.2(a)(2)…”); United States v. Gil, 581 F. App'x
766, 775-76 (11th Cir. 2014) (per curiam) (unpublished) (“Jorge argues that the
district court committed procedural error in calculating his sentencing guideline
range because his 2001 federal drug conviction and 2002 Florida state drug conviction
involved the same conspiracy, supply, and informant and thus should have been
considered 	one 	conviction 	for 	the 	purposes 	of 	calculating 	his 	criminal 	history
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score…Jorge’s 2001 federal drug conviction and 2002 Florida state drug conviction
were not contained in the same charging instrument, nor were the sentences imposed
on the same day. Therefore, they were appropriately considered separate offenses for
purposes 	of 	computing 	Jorge's 	criminal 	history.”).7 And 	contrary 	to 	Thomas’s
suggestion, nothing in the career offender guidelines prevents convictions from being
counted separately simply because they arose out of the same course of conduct.8
Accordingly, Thomas’s claim that he was improperly found to be a career offender is
meritless.
7 See also United States v. Kennedy, 455 F. App'x 446, 448 (5th Cir. 2011) (per curiam)
(unpublished) (“Both felony offenses were originally charged in the same indictment,
but the aggravated-robbery charge was dismissed and subsequently raised in a
separate indictment. Furthermore, Kennedy was sentenced for the offenses on
different days and under different cause numbers. []Kennedy contends that, because
the offenses were originally brought in the same indictment, they should have
counted as one sentence for criminal-history purposes, but he fails to provide any
legal authority either supporting his assertion or even addressing the district court's
implicit determination that the offenses being originally charged in one indictment
did not alter the result under the guideline provision governing whether prior
sentences are counted separately or as a single sentence. Accordingly, Kennedy
cannot demonstrate counsel's failure to object to the criminal-history calculation on
prior felony offenses constituted deficient performance.”); United States v. Bender,
516 F. App'x 289, 295 (5th Cir. 2012) (unpublished) (rejecting defendant’s contention
that two offenses should be treated as one because they “were originally contained
within the same charging instrument” because, among other reasons, “the offenses
were prosecuted under separate case numbers in separate jurisdictions” (relying on
Kennedy and Herrington))
8 Thomas may instead be confusing the career offender guidelines with the Armed
Career Criminal Act, which “does not require separate indictments, but it does
require that the three previous convictions “ ‘be committed on occasions different from
one another.’ ” United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010) (quoting
18 U.S.C. § 924(e)(1). However, Thomas was not sentenced under that Act.
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Thomas also appears to argue that the career offender enhancement violates
the 	Double 	Jeopardy 	Clause 	of 	the 	Fifth 	Amendment 	to 	the 	United 	States
Constitution, presumably claiming that it imposes additional punishment for past
offenses. Thomas, however, cites no authority in support of this argument, and the
United States Supreme Court has soundly rejected it. See Witte v. United States, 515
U.S. 389, 400, 515 S. Ct. 2199, 132 L. Ed. 2d 351 (1995) (“[W]e have made clear in
other cases, which involved a defendant’s background more generally and not conduct
arising out of the same criminal transaction as the offense of which the defendant
was convicted, that enhancement statutes, whether in the nature of criminal history
provisions such as those contained in the Sentencing Guidelines, or recidivist statutes
which are common place in state criminal laws, do not change the penalty imposed
for the earlier conviction. In repeatedly upholding such recidivism statutes, we have
rejected double jeopardy challenges because the enhanced punishment imposed for
the later offense is not to be viewed as either a new jeopardy or additional penalty for
the earlier crimes, but instead as a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because a repetitive one.” (citation and
quotations omitted)).9
9 Accord United States v. Andrews, 447 F.3d 806, 810 (10th Cir. 2006) (“Andrews
claims that the career offender enhancement imposed pursuant to U.S.S.G. § 4B1.1
violates the Double Jeopardy Clause of the Fifth Amendment. The Supreme Court
has consistently rejected double jeopardy challenges to recidivism statutes, stating
that ‘the enhanced punishment imposed for the later offense is not to be viewed as
either a new jeopardy or additional penalty for the earlier crimes but instead as a
stiffened penalty for the latest crime, which is considered to be an aggravated offense
because a repetitive one.’ ” (quoting Witte, 515 U.S. at 400)); United States v. Howard,
832 F. App'x 440, 442 (7th Cir. 2020) (per curiam) (unpublished) (“Howard would also
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Accordingly, 	Thomas’s 	Double 	Jeopardy 	challenge 	to 	his 	career-offender
sentence enhancement is also meritless. And because his challenges to his career-
offender enhancement are meritless, his related claims that his trial counsel was
ineffective for failing to object to the career-offender enhancement on those bases are
also meritless. 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.”).10
argue that the [career-offender] enhancement violates the Double Jeopardy Clause
because it imposes additional punishment for past offenses. Yet enhancing a sentence
based on a pattern of criminal activity does not change the punishment for the earlier
convictions.” (citing Witte, 515 U.S. at 400)); United States v. Esquivel-Arellano, 208
F. 	App'x 	758, 	762 	(11th 	Cir. 	2006) 	(per 	curiam) 	(unpublished) 	(“Sentencing
enhancements for prior criminal conduct…do not amount to a second punishment for
purposes of the Double Jeopardy Clause.” (citing Witte, 515 U.S. at 400, and other
cases)).
10 	The record indicates that trial counsel actually did argue that Thomas’s two
career-offender predicates should have counted as a single sentence for being
originally charged in the same document, in both pre-sentence briefing (Docs# 13, 14)
and at sentencing. The Court overruled the objection (see Doc# 21), and Thomas has
made no effort to allege what more his trial counsel could have done to press the issue.
Thomas also claims his trial counsel was ineffective because he failed to attend
a hearing set March 15, 2022, and again when that hearing was reset. (See Doc# 25,
PageID.142). However, a review of the dockets of both the above-styled criminal
action and 1:12-cr-00148 (in which trial counsel was also representing Thomas in
related revocation proceedings) does not support this contention, as neither docket
indicates that a hearing was ever set on March 15, 2022. The record of the above-
styled criminal action indicates that on that date, the Court entered a notice
reminding the parties that sentencing was set for March 24, 2022, which was also at
the time the date for Thomas’s final revocation hearing in 1:12-cr-00148 (see 1:12-cr-
00148 Doc# 50). Two days before that date, Thomas’s counsel filed a motion to
postpone both hearings (1:21-cr-00196 Doc# 18; 1:12-cr-00148 Doc# 51), which the
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b. Pardoned Offense
Thomas also argues in his operative § 2255 motion that his state conviction for
first-degree possession of marijuana should no longer be counted as a career-offender
predicate because “Federal Law pardon [sic] Simple Marijuana Possession.” (Doc# 25,
PageID.143). This presumably refers to President Joe Biden’s mass pardon of federal
offenders 	convicted 	of 	“simple 	marijuana 	possession” 	on 	October 	6, 	2022. 	See
https://www.cnbc.com/2022/10/06/biden-to-pardon-all-prior-federal-offenses-of-
simple-marijuana-possession-.html?msockid=3431d4fe10b761ea393dc08911f860d4
(last visited Dec. 16, 2024). However, Thomas presents no proof, nor does he even
allege, that he personally received such a pardon. Moreover, the President “can only
pardon those offenses which are ‘against the United States.’ ” Bjerkan v. United
States, 529 F.2d 125, 129 (7th Cir. 1975). The presidential pardon power does not
extend to state offenses, such as Thomas’s marijuana possession conviction. See 2
Jens David Ohlin, Wharton's Criminal Law § 19:29 (16th ed. Aug. 2024 Update) (“A
governor has no authority to pardon or commute federal convictions and sentences,
and the President has no authority to pardon state crimes or commute state
sentences. Each executive exercises their authority within their criminal jurisdiction,
consistent with the principles of federalism.”). Because Thomas has failed to show
Court granted, continuing sentencing and the final revocation hearing for about 3
months (see 1:21-cr-00196 Doc# 19; 1:12-cr-00148 Doc# 52). The record indicates that
trial counsel attended the reset hearings as scheduled.
To the extent these missed hearings allegedly occurred in Thomas’s related
state court proceedings, Thomas cannot challenge his state court conviction through
a § 2255 motion, and must instead bring a separate petition for a writ of habeas
corpus under 28 U.S.C. § 2254.
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that his state marijuana possession conviction has been pardoned, then his career-
offender enhancement may still validly be based on that offense.
c. 	U.S.S.G. § 4C1.1
Lastly, in his “Relevant Motion to Amend Sentence,” Thomas claims that his
sentence should be amended because he “meets the criteria outlined in USSG 4C1-
1…” (Doc# 26, PageID.150).11 That guideline only became effective November 1, 2023,
and allows for a 2-level decrease in a defendant’s offense level if the defendant meets
“all of” the eleven criteria listed therein, which includes “the defendant did not receive
any criminal history points from Chapter Four, Part A…” U.S.S.G. § 4C1.1(a)(1).
Here, Thomas received 8 criminal history points in his PSR (see Doc# 15 ¶¶ 33-35,
PageID.99), and he has failed to show that any, much less all, of those points were
erroneously applied. Accordingly, Thomas has failed to show that he is due relief
under § 4C1.1.
As 	all of Thomas’s claims are without merit, his § 2255 motion is due to be
DENIED and DISMISSED with prejudice.
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
11 The motion also references USSG “4C1-2,” but there is no such guideline.
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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
does not require a showing that the appeal will succeed.” Id. at 337.
Upon 	due 	consideration, 	the 	undersigned 	finds 	that 	Thomas 	should 	be
DENIED a certificate of appealability in conjunction with the dismissal of the
present § 2255 motion because he he has failed to make a substantial showing of the
denial of a constitutional right under any of the grounds raised, and jurists of reason
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would not find it debatable whether the Court is correct in finding those grounds
meritless.12
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).13
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
(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
12 	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.
13 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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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 Thomas 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.14
IV. 	Conclusion & Recommendations
In accordance with the foregoing analysis, the undersigned RECOMMENDS
that Thomas’s initial § 2255 motion (Doc# 23) be found MOOT as superseded by his
court-form operative § 2255 motion; that his operative § 2255 motion dated March 3,
2023 (Doc# 25), as supplemented (Doc# 26), be DENIED and DISMISSED with
prejudice under Rule 4 of the Rules Governing Section 2255 Proceedings for the
United 	States 	District 	Courts; 	that 	Thomas 	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 of Civil
Procedure 58.15 The undersigned further RECOMMENDS that the Court certify
14 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).
15 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
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that any appeal by Thomas 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
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
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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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.”16
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
omission 	is 	promptly 	corrected 	after 	being 	called 	to 	the 	attorney's 	or 	party's
attention.” Fed. R. Civ. P. 11(a).
16 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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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 16th day of December 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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