USA v. Tubbs et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
VAN TUBBS, 	)
BOP Reg. #06762-027, 	)
Movant, 	)
) 	CIVIL ACTION NO. 2:17-00508-KD
v. 	)
)CRIMINAL ACTION NO. 2:14-00135-KD-N-18
UNITED STATES OF AMERICA, 	)
Respondent. 	)
REPORT AND RECOMMENDATIONS
Van Tubbs, a federal prisoner proceeding without counsel (i.e., pro se), has filed
a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 7481)
challenging the judgment entered against him in the above-styled criminal action.
The motion has been referred to the undersigned Magistrate Judge for appropriate
action. See S.D. Ala. GenLR 72(b); (11/17/2017 electronic reference). 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
disposition of the § 2255 motion, in accordance with 28 U.S.C. § 636(b)(1) and Rules
8(b) and 10 of the Rules Governing Section 2255 Proceedings for the United States
District Courts.
The Government timely filed a response (Doc. 751) in opposition to Tubbs’s §
2255 motion, as ordered under Rule 4(b) of the Rules Governing Section 2255
Proceedings (see Doc. 749), and Tubbs has timely filed a reply (Doc. 752) to the
1 All “Doc.” citations herein refer to the docket of the above-styled criminal action.
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response. 	Having reviewed the parties’ submissions and other relevant portions of
the record in accordance with Rule 8(a) of the Rules Governing Section 2255
Proceedings, the undersigned finds that neither expansion of the record nor an
evidentiary hearing is warranted and that Tubbs’s § 2255 motion (Doc. 748) is due be
DENIED and DISMISSED with prejudice.
I. 	Background
On May 29, 2014, the grand jury for this district returned an indictment
against Tubbs and 17 co-defendants (Doc. 1). 	On September 17, 2014, Tubbs,
represented by appointed counsel Larry Moorer, Esq., and pursuant to a written plea
agreement (Doc. 281), pleaded guilty to both counts of the indictment that were
asserted against him – Count 1, which charged an offense of conspiracy to possess
with intent to distribute controlled substances, in violation of 21 U.S.C. § 846; and
Count 27, which charged an offense of conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h). (See Docs. 1, 296). On September 24, 2015, the Court
sentenced Tubbs to concurrent terms of 180 months imprisonment followed by 5 years
of supervised release on each count, along with a $200.00 assessment. 	(Doc. 670).
Written judgment was entered on October 1, 2015. (See id.).
Tubbs filed pro se a notice of appeal of the judgment (Doc. 678), and new
counsel was appointed to represent him on appeal (see Doc. 712). 	However, on
November 18, 2016, the Eleventh Circuit Court of Appeals dismissed Tubbs’s direct
appeal on motion of the Government pursuant to the appeal waiver in Tubbs’s written
plea agreement. 	(See Doc. 734; 11th Cir. Appeal No. 15-14483-FF, Order of
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Dismissal). 	Tubbs filed the present § 2255 motion less than a year later. 	(See Doc.
748 at 12).
II. 	Legal Standards
A. 	General Considerations 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).
Specifically, § 2255 provides:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence
... If the court finds that the judgment was rendered without jurisdiction,
or that the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall vacate and set
the judgment aside and shall discharge the prisoner or resentence him
or grant a new trial or correct the sentence as may appear appropriate.
28 U.S.C. § 2255(a)-(b).
Once 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
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“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, e.g., Diveroli v. United
States, 803 F.3d 1258, 1263 (11th Cir. 2015). In making this determination, the Court
is aware that it must “liberally construe pro se filings, including pro se applications
for relief pursuant to § 2255.” Winthrop-Redin, 767 F.3d at 1215.
“Once the defendant’s chance to appeal has been waived or exhausted,” a court
is “entitled to presume he stands fairly and finally convicted, especially when, as here,
he already has had a fair opportunity to present his federal claims to a federal forum.”
United States v. Frady, 456 U.S. 152, 164 (1982). “[A] collateral challenge, such as a
§ 2255 motion, may not be a surrogate for a direct appeal.” 	Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165
(collecting cases)). “Because collateral review is not a substitute for a direct appeal,
the general rules have developed that: (1) a defendant must assert all available claims
on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions
of constitutional rights and for that narrow compass of other injury that could not
have been raised in direct appeal and would, if condoned, result in a complete
miscarriage of justice.” 	Id. at 1232 (internal citations, quotations, and footnote
omitted).
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The “ ‘concern with finality served by the limitation on collateral attack has
special force with respect to convictions based on guilty pleas.’ ” 	Bousley v. United
States, 523 U.S. 614, 621 (1998) (quoting United States v. Timmreck, 441 U.S. 780,
784 (1979)). 	“A defendant who enters a plea of guilty waives all nonjurisdictional
challenges to the constitutionality of the conviction, and only an attack on the
voluntary and knowing nature of the plea can be sustained.” Wilson v. United States,
962 F.2d 996, 997 (11th Cir. 1992). 	See also, e.g., United States v. Brown, 752 F.3d
1344, 1347 (11th Cir. 2014) (“‘A guilty plea, since it admits all the elements of a formal
criminal charge, waives all non-jurisdictional defects in the proceedings against a
defendant.’” (quoting United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986)
(per curiam)); United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) (“
‘Generally, entering a guilty plea waives a defendant's right to all non-jurisdictional
challenges to a conviction.’ ” (quoting United States v. Bonilla, 579 F.3d 1233, 1240
(11th Cir. 2009)). 	Stated differently, “a voluntary and intelligent plea made by an
accused person, who has been advised by competent counsel, may not be collaterally
attacked.” Mabry v. Johnson, 467 U.S. 504, 508 (1984). Therefore, when, as here, a
§ 2255 motion is filed collaterally challenging convictions obtained pursuant to guilty
pleas, “the inquiry is ordinarily confined to whether the underlying plea was both
counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). See also
Bousley, 523 U.S. at 618 (“A plea of guilty is constitutionally valid only to the extent
it is ‘voluntary’ and ‘intelligent.’ (quoting Brady v. United States, 397 U.S. 742, 748
(1970)).
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B. 	Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution gives criminal
defendants the right to effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 684–86 (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 (2003).
Indeed, “in most cases a motion brought under § 2255 is preferable to direct appeal
for deciding claims of ineffective assistance.” 	Id. at 504. 	See also United States v.
Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) (“An ineffective assistance claim should
usually be raised in a motion under 28 U.S.C. § 2255.” (citing United States v.
Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010))), cert. denied, 134 S. Ct. 962 (2014).
“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 (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 (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.
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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
the likelihood that discovery of the evidence would have led
counsel to change his recommendation as to the plea. This
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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
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
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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 (2010)).
III. 	Analysis
A. 	Grounds for Relief
Tubbs asserts five grounds for relief under § 2255, each alleging some form of
ineffective assistance of trial counsel. The undersigned will address each in turn.
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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1.
Tubbs’s Presentence Investigation Report (PSI) calculated his U.S. Sentencing
Guidelines base offense level to be 32, which included a 2-level enhancement under
U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon during the offenses of
conviction. (Doc. 568 at 10, ¶ 35). Tubbs’s first ground for relief alleges that counsel
was ineffective for failing to timely object to this enhancement.
As directed by the Court, the Probation Office filed a draft PSI for Tubbs on
January 9, 2015 (Doc. 414), and written objections from the parties were due by
January 30, 2015. (See Doc. 296). Tubbs filed no objections by that deadline, and the
Probation Office issued its final PSI for Tubbs on April 21, 2015 (Doc. 568). The day
before Tubbs’s sentencing hearing, his counsel, without requesting leave of the Court
to excuse its untimeliness, filed an objection to the 2-level dangerous weapon
enhancement, asserting that Tubbs “denies he possessed a firearm.” 	(Doc. 645).
When counsel raised that objection at the sentencing hearing, the Court overruled it,
stating:
Well, first of all, it was untimely filed. That’s the basis for denial. Even
if I were to consider the merits, based on the information that’s
contained in the PSI, which wasn’t objected to, that is the facts, although
there’s no indication that he owned the gun or had a gun. He was
participating in a conspiracy in which he would come down to the
Marion area where there were a lot of his co-conspirators who had guns
such that he would be held responsible for that. So that objection is
denied on those two grounds.
(Id.).
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While counsel erred in failing to timely object to the dangerous weapon
enhancement, Tubbs has failed to show that he was prejudiced by this error, since
the Court clearly stated that it would have overruled the objection on the merits even
if it was timely raised. 	While acknowledging that there was “no indication [Tubbs]
owned the gun or had a gun” during the offenses of conviction, the Court nevertheless
held 	him 	responsible 	for 	firearms 	possessed 	by 	co-conspirators, 	which 	it 	was
permitted to do. See United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per
curiam) (“The § 2D1.1(b)(1) enhancement may be applied when the firearm is
possessed by a co-conspirator. 	United States v. Fields, 408 F.3d 1356, 1359 (11th
Cir.), cert. denied 546 U.S. 886, 126 S. Ct. 221, 163 L. Ed. 2d 193 (2005). ‘The
enhancement applies to a co-conspirator when…’(1) the possessor of the firearm was
a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the
defendant was a member of the conspiracy at the time of possession, and (4) the co-
conspirator possession was reasonably foreseeable by the defendant.’ ” Id.). While it
is true that the Court relied on other unobjected-to facts in the PSI to reach this
conclusion, Tubbs’s § 2255 briefing does not identify any specific evidence that could
have rebutted those facts in the PSI had it been represented at the sentencing
hearing. Accordingly, Tubbs is due no relief on Ground 1.
2.
Tubbs’s second ground for relief claims that counsel did not adequately advise
him about his case prior to the entry of his guilty plea. In support, Tubbs alleges:
Petitioner’s counsel failed to explain to Petitioner exactly what he was
being charged with, go over his criminal history with him, or even meet
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with him until immediately before the sentencing hearing. Additionally,
he misrepresented to Petitioner what his sentence would be, stating that
he would receive approximately 80 months, rather than the sentence he
received…Defense counsel was also ineffective for giving incorrect
sentencing information in contemplation of his plea…Defense knew or
should have known that Petitioner, a man with limited education, and
cognitive difficulties as noted by the U.S. Social Security Department,
would require more than a few minutes to understand the details of a
complicated plea agreement.
(Doc. 748-1 at 5 – 6). In his reply, Tubbs further alleges:
[C]ounsel never went over the plea details until he was back in court,
and [Tubbs] was told by counsel to agree with whatever the judge said
at the plea colloquy. In fact, the plea agreement was faxed to Petitioner
at the jail (and faxed back to him from the jail, as shown by the markings
on the document), and not even delivered in person.[3] 	Given the fact
that Petitioner received Social Security benefits for cognitive issues, it
is not only inadequate representation, but unconscionable that he did
not review the plea agreement in person.
(Doc. 752 at 5). Initially, Ground 2 fails because Tubbs has failed to show prejudice
– 	that 	is, 	he 	fails 	to 	even 	allege, 	much 	less 	present 	non-conclusory 	facts
demonstrating, that but for counsel’s alleged failure to adequately advise him, he
would not have pleaded guilty and would have insisted on going to trial. 	Indeed,
Tubbs’s reply indicates he did not intend to go to trial, instead conclusorily insisting
that adequate advice of counsel would have resulted in a more favorable outcome “by
reason of a plea to a lesser charge or to a sentence of less prison time.” (Doc. 752 at
3 The undersigned acknowledges that there is computer-generated print at the top of
the signature pages for the plea agreement and the accompanying factual resume
indicating that those two pages were faxed on September 15, 2014 (see Doc. 281 at
13, 26), while no such similar print is found on the other pages of the plea agreement
and factual resume.
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6). 	Tubbs fails, however, to explain how this hypothetical more-favorable outcome
might have come about had counsel performed more effectively.4
Additionally, Tubbs’s few non-conclusory factual allegations in support of
Ground 2 are affirmatively contradicted by the express terms of his written plea
agreement, and his sworn testimony and the Court’s findings at his guilty plea
hearing.
[P]lea bargaining retains its benefits of certainty and efficiency “only if
dispositions by guilty plea are accorded a great measure of finality.”
Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136
(1977); 	see 	id. 	(“To 	allow 	indiscriminate 	hearings 	in 	federal
postconviction proceedings ... for federal prisoners under 28 U.S.C. §
2255 ... would eliminate the chief virtues of the plea system—speed,
economy, and finality.”). While § 2255 exists “to safeguard a person's
freedom from detention in violation of constitutional guarantees,” …
“[m]ore often than not a prisoner has everything to gain and nothing to
lose from filing a collateral attack upon his guilty plea.” Id. at 71–72, 97
S. Ct. 1621. As a result, “the representations of the defendant, his
lawyer, and the prosecutor at [a plea] hearing, as well as any findings
made by the judge accepting the plea, constitute a formidable barrier in
any subsequent collateral proceedings.” Id. at 73–74, 97 S. Ct. 1621; see
id. at 80 n. 19, 97 S. Ct. 1621 (explaining that if the record reflects the
procedures of plea negotiation and includes a verbatim transcript of the
plea colloquy, a petitioner challenging his plea will be entitled to an
evidentiary hearing “only in the most extraordinary circumstances”).
“The subsequent presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible.” Id. at 74, 97 S. Ct. 1621.
4 Rosin v. United States, 522 F. App'x 578 (11th Cir. 2013) (per curiam) (unpublished),
which Tubbs has cited in support of Ground 2, is not instructive in this case. 	The
only issue the Court of Appeals addressed there, and the only ground on which it
reversed the district court’s decision on the § 2255 motion there, was the district
court’s application of an erroneous standard of proof in analyzing Strickland’s
“prejudice” prong.
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Winthrop-Redin, 767 F.3d at 1216. In sum, because “ ‘[s]olemn declarations in open
court carry a strong presumption of verity[,]’ Blackledge, 431 U.S. at 74, 97 S. Ct.
1621[,]” when a defendant “ma[k]e[s] statements under oath at a plea colloquy, ‘he
bears a heavy burden to show his statements were false.’ United States v. Rogers, 848
F.2d 166, 168 (11th Cir. 1988) (per curiam).” Id. at 1217 (some alterations added).5
Tubbs’s signed plea agreement expressly advised, among other things, (1) that
the Court could impose 10 years to life imprisonment for Count 1, and up to 20 years
imprisonment for Count 27; (2) that the “Court will impose the sentence in this
case[;]” (3) that the plea agreement did “not create any right to be sentenced in
accordance with the Sentencing Guidelines, or below or within any particular
guideline range[;]” (4) that the Sentencing Guidelines “are advisory and do not bind
the Court[;]” (5) that “no one can predict with certainty what the sentencing range
will be in this case until after a pre-sentence investigation has been completed and
the Court has ruled on the results of that investigation[;]” (6) “that the determination
5 Accord, e.g., United States v. Gonzalez–Mercado, 808 F.2d 796, 800 n.8 (11th Cir.
1987) (“While Rule 11 is not insurmountable, there is a strong presumption that the
statements made during the colloquy are true.”); United States v. Stitzer, 785 F.2d
1506, 1514 n.4 (11th Cir. 1986) (“[I]f the Rule 11 plea taking procedure is careful and
detailed, the defendant will not later be heard to contend that he swore falsely.”
(citing United States v. Barrett, 514 F.2d 1241, 1243 (5th Cir. 1975) (per curiam)));
United States v. Cardenas, 230 F. App'x 933, 935 (11th Cir. 2007) (per curiam)
(unpublished) 	(“We 	apply 	a 	‘strong 	presumption’ 	that 	statements 	made 	by 	a
defendant during his plea colloquy are true, United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994); therefore, ‘when a defendant makes statements under oath at a
plea colloquy, he bears a heavy burden to show his statements were false.’ United
States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Nothing in the record shows that
Cardenas has satisfied his burden of showing that his sworn statements made during
the plea colloquy-including that no one had predicted what sentence he would receive-
were false; and we reject his claim that his guilty plea was involuntary.”).
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of the sentencing range or guideline level, or the actual sentence imposed, is solely
the 	discretion 	of 	the 	Court[;]” 	and 	(7) 	that, 	with 	regard 	to 	sentencing, 	the
Government’s only obligation would be to “recommend to the Court that [Tubbs] be
sentenced at the low end of the advisory sentencing guideline range as determined
by the Court.” 	(Doc. 281 at 3 – 5, 6, ¶¶ 11 – 13, 20).6 	The plea agreement also
included a factual resume, also signed by Tubbs, that set forth the elements of the
two counts to which he pleaded guilty, and a statement of the factual basis for the
offenses. (Doc. 281 at 14 – 26).
In sworn testimony at his guilty plea hearing, Tubbs answered “yes” to each of
the following questions asked of him by the Court: (1) “Can you read, write, and
understand the English language?”; (2) “did…you receive a copy of the indictment
and go over it with your attorney?”; (3) “did…you discuss your case with your attorney
and discuss possible defenses to this case with your attorney?”; (4) “after discussing
possible defenses to this case, are you satisfied with your attorney's advice that you
plead guilty?”; (5) “are you satisfied with your attorney’s representation of you in
6 To the extent Tubbs argues that his counsel rendered ineffective assistance by
failing to adequately explain the terms of the appeal waiver in his plea agreement,
that argument fails because Tubbs is procedurally barred from claiming prejudice by
any such errors. 	The Court of Appeals dismissed Tubbs’s direct appeal pursuant to
the appeal waiver, meaning it necessarily found that Tubbs’s agreement to the waiver
was “knowing and voluntary.” 	See (Doc. 734); United States v. Bushert, 997 F.2d
1343, 1351 (11th Cir. 1993) (“for a waiver to be effective it must be knowing and
voluntary”). 	Accordingly, Tubbs is procedurally barred from re-litigating that issue
on collateral review, and therefore cannot argue that any error of counsel rendered
his agreement to the appeal waiver unknowing and involuntary. 	See United States
v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (“Once a matter has been decided
adversely to a defendant on direct appeal it cannot be re-litigated in a collateral
attack under section 2255.” (quotation omitted)).
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general?”; (6) “Your plea agreement provides that in return for your guilty plea, the
Government is going to recommend that you be sentenced at the low end of the
guidelines…Is that the way you understand your plea agreement?”; (7) “did you read
that plea agreement and discuss it with your attorney before you signed it?”; (8) do
you understand that “you are potentially facing a ten-year mandatory minimum up
to life” sentence, and that the money laundering conspiracy charge “carries a penalty
of up to 20 years in prison…?”; (9) “[T]here are sentencing guidelines that apply to
your case. 	You went over those with your attorney?”; (10) The guidelines “are just
advisory. I’m not required to follow those…Do you understand that?...And also the
estimate that was given is just that. 	It’s an estimate. 	We won’t know what your
guidelines are until we’ve done a full background check of everything. 	Do you
understand that?”; and (11) “So you understand that you have a right to have a jury
determine how much drugs were involved? Do you understand that?... But by that
plea agreement, you are asking me to determine the amount of drugs and by -- if I
determine the amount of drugs, once I determine that, then I'll see if that is the
amount that, you know, implicates the ten-year mandatory minimum…So you're
actually giving me the power to determine an element of the offense that a jury
normally determines. Do you understand that?” (Doc. 719 [Change-of-Plea Hearing
Transcript]).
Tubbs answered “no” to the following questions from the Court: (1) “Have you
had any problems communicating with your attorney?”; (2) “Did anybody promise you
anything different or something that's not included in that plea agreement? For
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instance, did a law enforcement agent tell you, ‘Oh, for sure, you're going to get
cooperation’ or something like that? Anything that's not in that plea agreement?”;
and (3) Did “[a]nybody force you to plead guilty?” 	(Id.) When asked if he had “ever
been treated for any type of mental illness,” Tubbs and his counsel engaged in the
following exchange with the Court:
THE CLERK: And you, you’re good?
V. TUBBS: Yes, ma’am. I was on disability.
THE COURT: For?
V. TUBBS: They said I was mental.
THE COURT: Like mental in what way?
V. TUBBS: Well, I don’t know. 	But you know, I don’t know. 	I don’t
know. But mental, slow. They said I was slow or whatever.
THE COURT: You’re slow. 	But you don’t have a problem reading, do
you?
V. TUBBS: No, I can read.
THE COURT: Have you had any problem communicating with Mr.
Moorer?
V. TUBBS: No, ma’am.
THE COURT: Mr. Moorer, have you noticed anything about him that
would make you think he’s not able to understand what’s going on
today?
MR. MOORER: No, nothing about the conversations we’ve had. 	He’s
been pretty clear in discussing it with me.
(Id. at 7 – 8).
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At the Court’s direction, counsel for the Government then proceeded to recite
the elements of the two offenses to which Tubbs was pleading guilty and the factual
basis for those two offenses (see id. at 19 – 27), which substantially tracked the signed
factual resume included with Tubbs’s plea agreement. 	Tubbs answered “yes” when
asked if he “agree[d] the Government could prove those facts against” him, and that
he pleaded “guilty” to the charges. (Doc. 719 at 28). The Court then accepted Tubbs’s
plea, finding that Tubbs was “fully competent and capable of entering an informed
plea; [was] aware of the nature of the charges and the consequences of the plea; and
that the plea of guilty is a knowing and voluntary plea supported by an independent
basis in fact containing each of the essential elements of the offense.” (Id. at 28).
The 	foregoing 	representations 	and 	findings 	of 	the 	Court 	affirmatively
contradict Tubbs’s sparse allegations supporting his claim that counsel failed to
adequately advise him prior to entry of his guilty plea, and Tubbs has not met his
“heavy burden” of showing that the Court should not now rely on them. See Winthrop-
Redin, 767 F.3d at 1216. Accordingly, for the foregoing reasons, Tubbs is due no relief
on Ground 2.
3.
Tubbs’s third ground for relief claims generally that trial counsel failed to
investigate the Government’s evidence prior to advising Tubbs to plead guilty. 	As
the Government correctly points out, Tubbs “fail[s] to identify any specific an
available evidence that, if presented, would have made any difference in his case,”
(Doc. 751 at 4), and claims based on unsupported generalizations do not warrant
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relief under § 2255. 	See Winthrop-Redin, 767 F.3d at 1216.7 	Accordingly, Tubbs is
due no relief on Ground 3.
4.
“The 	Sentencing 	Guidelines 	provide 	for 	a 	sentencing 	enhancement 	for
defendants who are ‘career offenders.’ ... A defendant is considered a ‘career offender’
if three conditions are met: (1) the defendant was at least 18 years old at the time of
the conviction; (2) the offense of the 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.”
Buckles v. United States, 705 F. App'x 886, 887 (11th Cir. 2017) (per curiam)
(unpublished) (citing U.S.S.G. § 4B1.1). The PSI determined that Tubbs qualified for
the “career offender” enhancement, specifically citing two prior felony convictions
detailed in paragraphs 52 and 56 of the PSI 	– a 1997 Indiana conviction for two
counts 	of 	dealing 	with 	cocaine, 	and 	a 	2002 	federal 	conviction 	for 	use 	of 	a
communication facility in the facilitation of a distribution of controlled substances –
that qualified as “controlled substances offenses.” (Doc. 568, ¶¶ 41, 52, 56).8
7 In his reply, Tubbs suggest that counsel “perhaps had not even read the PSI” when
he was discussing the plea agreement with Tubbs. 	(Doc. 752 at 7). 	Given that the
PSI was not prepared until after Tubbs pleaded guilty, however, counsel could not
have been ineffective for failing to read it during plea negotiations. See Fed. R. Crim.
P. 32(e)(1) (“Unless the defendant has consented in writing, the probation officer must
not submit a presentence report to the court or disclose its contents to anyone until
the defendant has pleaded guilty or nolo contendere, or has been found guilty.”).
8 As Tubbs points out, paragraph 61 of the PSI also noted a third “controlled
substance offense” – a 2012 Indiana conviction for dealing in cocaine – though it did
not specifically cite that offense in applying the “career offender” enhancement. (Doc.
568, ¶ 61). 	However, the PSI noted that, “[a]ccording to the government, th[at]
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Tubbs’s fourth ground for relief asserts that counsel was ineffective for failing
to 	object 	the 	“career 	offender” 	enhancement, 	claiming 	that 	his 	1997 	Indiana
convictions “arguably do not qualify as predicate offenses to establish Career
Offender status.” 	(Doc. 748-1 at 9). 	However, as the Government correctly notes,
Tubbs proffers no grounds on which counsel could validly have objected to the
enhancement, and counsel cannot be found ineffective for failing to raise meritless
issues. 	See Brownlee, 306 F.3d at 1066 (“Counsel was not ineffective for failing to
raise these issues because they clearly lack merit.”); Curbelo, 726 F.3d at 1267 (“[I]t
goes without saying that counsel is not ineffective for failing to file a meritless
suppression motion.”).9 Accordingly, Tubbs is due no relief on Ground 4.
5.
Tubbs’s fifth and final ground for relief alleges that counsel “failed to present
character witnesses and other mitigating evidence at the penalty phase,” such as “any
evidence of Petitioner’s mental state at the time the crime was committed, even
though the PSI itself makes reference to this fact.” (Doc. 748-1 at 10-11 (citing “PSI,
page 19”)).10 	Tubbs fails to specify what “character witnesses,” “other mitigating
charge[] [was] related to the instant offense[,]” and it did not count that conviction in
scoring Tubbs’s criminal history or in applying the “career offender” enhancement.
(See id., ¶¶ 41, 61)
9 In his reply, Tubbs argues that his 1997 Indiana conviction was “arguably to [sic]
far removed in time to be included for career offender purposes.” 	(Doc. 752 at 8).
However, the guideline on which Tubbs relies in making this argument, § 4A1.2(e),
by its terms applies only to counting “sentences,” while the “career offender”
guideline, § 4B1.1, concerns counting “convictions.” 	The “career offender” guideline
provides no temporal limitation on what prior felony convictions can be counted.
10 Paragraph 74 of Tubbs’s PSI (Doc. 568) stated:
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evidence,” or “evidence of [his] mental state at the time the crime was committed”
that counsel could have, but failed to, present at sentencing, and claims based on such
unsupported generalizations do not warrant relief under § 2255. See Winthrop-Redin,
767 F.3d at 1216.11
Accordingly, Tubbs is due no relief on Ground 5, and his § 2255 motion is due
to be DENIED and DISMISSED with prejudice, without an evidentiary hearing.
B. 	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
During the presentence interview, Tubbs stated that he was diagnosed
as “kind of slow” by Social Security Administration physicians in 1995,
and has received disability benefits since that time. He was unable to
elaborate further about his disability. It is noted in the previously
prepared presentence report that the defendant was diagnosed with
severe depression in 1995. He did not report any family history of mental
or emotional health problems. During the presentence interview, Tubbs
communicated appropriately and appeared to understand the gravity of
his current legal situation.
11 As to Tubbs’s mental state at the time of the offense, any attempt by Tubbs to
downplay at sentencing his culpability for the offenses to which he pleaded guilty
could have jeopardized the 3-point adjustment for acceptance of responsibility that
the PSI gave him. See United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997) (en
banc) (“Our case law permits a district court to deny a defendant a reduction under §
3E1.1 based on conduct inconsistent with acceptance of responsibility, even when
that conduct includes the assertion of a constitutional right…In addition, frivolous
legal challenges could suggest to the district court that the defendant has not
accepted responsibility for his conduct. Therefore, we hold that a district court may
consider the nature of such challenges along with the other circumstances in the case
when determining whether a defendant should receive a sentence reduction for
acceptance of responsibility.”).
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the Rules Governing § 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.A. § 2253(c)(1)(A).
“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)). Where
the district court “has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” 	Slack v. McDaniel, 529 U.S. 473, 484 (2000). 	See also
Miller-El v. Cockrell, 537 U.S. 322, 336 (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)).). “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 consideration, the undersigned finds that Tubbs should be DENIED a
Certificate of Appealability as to the present § 2255 motion, as reasonable jurists
would not debate whether his § 2255 motion should be resolved in a different manner
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or that any of the issues presented is adequate to deserve encouragement to proceed
further.12
C. 	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).
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 *860 “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).
12 	Rule 11(a) further provides: “Before entering the final order, the court may
direct the parties to submit arguments on whether a certificate should issue.” If there
is an objection to this recommendation by the petitioner, he may bring this argument
to the attention of the district judge in the objections permitted to this report and
recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WS-C, 2011 WL
1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation adopted, 2011 WL
1930662 (S.D. Ala. May 19, 2011); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL
3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for same procedure), report &
recommendation adopted sub nom. Griffin v. Butterworth, 2010 W: 3943699 (N.D.
Oct. 5, 2010).
Should 	the 	Court 	adopt 	this 	recommendation 	and 	deny 	a 	certificate 	of
appealability, 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.
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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
RECOMMENDS the Court certify that any appeal by Tubbs of the dismissal 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.13
IV. 	Conclusion
In accordance with the foregoing analysis, it is RECOMMENDED that Van
Tubbs’s Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc.
748) 	be 	DENIED 	and 	DISMISSED 	with 	prejudice. 	It 	is 	further
RECOMMENDED that the Court find Tubbs not entitled to a Certificate of
Appealability or to proceed in forma pauperis on appeal.
DONE this the 13th day of March 2019.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
13 Should the Court adopt this recommendation and deny leave to appeal in forma
pauperis, Tubbs 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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NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything
in it must, within fourteen (14) days of the date of service of this document, file
specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); 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 	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.
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