4:21-cr-00038•USA v. SPEED
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Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION UNITED STATES OF AMERICA v. Case Nos.: 4:21cr38/RH/MAL 4:23cv222/RH/MAL DEMETRIUS SPEED REPORT AND RECOMMENDATION This matter is before the Court on Defendant Demetrius Speed’s motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. ECF No. 47. After careful consideration of the record,1 the relevant law, and the testimony given at the January 6, 2026, evidentiary hearing, I recommend the motion be denied. I. BACKGROUND On January 10, 2022, Mr. Speed entered a guilty plea to distribution of a controlled substance (count one) and possession with intent to distribute a controlled substance (count two). ECF No. 28-31. The Government sought enhanced statutory penalties under 21 U.S.C. §§ 841 and 851 based on Mr. Speed’s conviction of a 1 In addition to Mr. Speed’s motion, the Government filed a response in opposition, ECF No. 54, and Mr. Speed filed a reply, ECF No. 56, and a supplement to his motion, ECF No. 61. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 1 of 16
Page 2 of 16 serious drug felony, which resulted in a minimum mandatory penalty of 15 years’ imprisonment on each count. ECF No. 8. According to Mr. Speed’s Presentence Investigation Report (PSR), he was facing a minimum mandatory penalty of 15 years imprisonment on each count, and an advisory guidelines range of 262 to 327 months. ECF No. 36, PSR ¶¶ 84-85. At sentencing, Mr. Speed read a statement to the court in which he acknowledged his culpability but said he did “not want to go away for 15 plus years.” ECF No. 53 at 8. The Government informed the court that Mr. Speed had provided honest and candid cooperation, which the court should take into consideration, even though his efforts did not rise to the level of substantial assistance. Id. at 15. The court took this information into account and imposed a below-guidelines term of 180 months’ imprisonment on each count. Id. at 21. This sentence was 82 months below the low end of the advisory guidelines range and the lowest sentence allowable by law. Judgment was entered on August 5, 2022. ECF No. 45. Mr. Speed timely filed a § 2255 motion raising two grounds for relief. ECF No. 47. In Ground One of his motion, Mr. Speed claims his attorney, Craig J. Brown, advised him he would be looking at a sentence in the “7-8-year range” if he cooperated with the Government. ECF No. 47-1 at 6. According to Mr. Speed, Mr. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 2 of 16
Page 3 of 16 Brown told him “the AUSA agreed that he would file a 5K1 departure request at the time of sentencing.” Id. at 7. Mr. Speed states that he relied on this advice when he entered his guilty plea. Id. Later, when Mr. Speed was sentenced to more than 7-8 years, Mr. Brown failed to file a motion for specific performance of the plea agreement. Id. at 8. In Ground Two, Mr. Speed claims that Mr. Brown failed to file a notice of appeal as requested. II. Evidentiary Hearing I held an evidentiary hearing on January 6, 2026. The hearing was initially limited to Mr. Speed’s claim that counsel failed to file a notice of appeal. Upon request of his appointed counsel, I expanded the scope of the hearing to allow the parties to ask questions about the benefits Mr. Brown allegedly told Mr. Speed he could expect to receive for cooperating with the Government, since Mr. Speed claimed those statements influenced his decision to plead guilty. ECF No. 72. Mr. Speed and his former attorney Mr. Brown were the only witnesses at the hearing. III. MR. SPEED’S CLAIMS FOR RELIEF A. Ground One–Advice regarding sentence and alleged breach of plea Mr. Speed’s first claim has two components. First, he contends counsel was ineffective for incorrectly telling him he would receive a 5K1 motion and a 7-to-8- Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 3 of 16
Page 4 of 16 year sentence, advice Mr. Speed claims he relied on in accepting the plea offer. ECF No. 47-1 at 2. Second, he claims counsel failed to file “appropriate motions” in response to the Government’s alleged breach of the plea agreement. Id. Mr. Speed claims he continued to cooperate because of a verbal agreement that the Government would file a 5K1 motion and he would be sentenced to a term of 7 to 8 years, and counsel was ineffective for not challenging the Government’s failure to fulfill its agreement. ECF No. 47-1 at 7, 8, 9, 13. The transcript of the change of plea hearing and the testimony at the evidentiary hearing squarely refute the assertions in Mr. Speed’s § 2255 motion. During the plea colloquy, Mr. Speed denied under oath the existence of any promises of a specific sentence. ECF No. 50 at 14-15. The written plea agreement also provided that “any prediction of the sentence that may be imposed is not a guarantee or binding promise.” ECF No. 30 at 4. Additionally, I credit counsel’s testimony at the evidentiary hearing that no “promise” of either a 5K1 or a specific sentence was conveyed to Mr. Speed. 1. Presumption of truth of defendant’s statements during plea colloquy A defendant’s statements during a Rule 11 colloquy as well as any findings made by the judge accepting the pleas constitute a formidable barrier in any Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 4 of 16
Page 5 of 16 subsequent collateral proceedings. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014). A defendant’s statements under oath carry “a strong presumption of verity.” Blackledge, 431 U.S. at 74. “The subsequent presentation of conclusory and contradictory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Id. (citations omitted). “[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.” United States v. Stitzer, 785 F.2d 1506, 1514, n.4 (11th Cir. 1986) (quotation omitted); see also United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (“[T]he presumption of truthfulness of [defendant’s] Rule 11 statements will not be overcome unless the allegations in the § 2255 motion . . . include credible, valid reasons why a departure from those earlier contradictory statements is now justified.”). 2. Mr. Speed’s plea colloquy During the change of plea proceeding, Mr. Speed was advised of the sentence he faced and the possibility of earning credit for his cooperation. He denied, under oath, that anyone had promised him a specific sentence, and he asserted he had read, and understood, the plea agreement. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 5 of 16
Page 6 of 16 Specifically, the district judge advised Mr. Speed that he faced a minimum mandatory 15-year sentence because of his prior drug conviction. ECF No. 50 at 10. Mr. Speed said he understood. Id. at 11. The court explained that the only exception to this was if Mr. Speed cooperated with the Government, and the United States Attorney’s Office decided that his assistance rose to the level of substantial assistance in the investigation or prosecution of others. Id. at 11. Again, Mr. Speed said he understood. Id. at 12. The court pointedly told Mr. Speed if he provided assistance and the United States Attorney’s Office decided his efforts did not rise to the level of substantial assistance, he would “be stuck with that decision. There won’t be anything you can do about it, and you will not be able to take back your guilty plea.” ECF No. 50 at 12. Mr. Speed again affirmed his understanding. Id. The court also advised him the Government could decide not to file a substantial assistance motion for any reason, as long as it was not an unconstitutional reason. If this happened, Mr. Speed would “be stuck with” his decision and not be able to take back his guilty plea. Id. Once again, Mr. Speed confirmed he understood. The court directly asked Mr. Speed if anyone had promised him that he would get a substantial assistance motion. ECF No. 50 at 13. Mr. Speed responded “no, Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 6 of 16
Page 7 of 16 sir.” Id. When the court asked if anyone had made any promises about the sentence he would receive in this case, Mr. Speed again answered “no, sir.” Id. at 14. He also denied having talked to anyone on the Government’s side of the case about the sentence that would be imposed. Id. at 14-15. Finally, Mr. Speed assured the court he had read the plea agreement and sealed supplement “line by line and word by word.” ECF No. 50 at 15. He further confirmed he understood every word, agreed to every word, and that the documents included “everything [he had] agreed to with the Government.” Id. at 16. Based on this thorough colloquy, the court found Mr. Speed’s plea was knowing, voluntary, and intelligent, and it accepted the plea. Id. at 17. 3. Discussion Mr. Speed’s claim in his § 2255 motion that he relied on counsel’s promise when he entered his guilty plea that the Government would file a 5K1 motion and he would receive a 7-to-8-year sentence is not credible. First, his claim of an undisclosed promise of a 7-to-8-year sentence is unequivocally rebutted by his sworn statements during the plea colloquy. Mr. Speed has not overcome the “presumption of verity” of his sworn statements at his change of plea hearing, which he has not explained away. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 7 of 16
Page 8 of 16 Additionally, statements Mr. Speed made after entering his plea do not support a finding that he had been told he would receive a 7-to-8-year sentence. For instance, in Mr. Speed’s prepared statement to the court at sentencing, he said he did not want to go away for “15-plus years”. ECF No. 53 at 8. This statement reflects an understanding he would be getting at least a 15-year sentence. Had Mr. Speed expected to receive a 7-to-8-year sentence as he claims in his § 2255 motion, his reference to a 15-year plus sentence contradicts that expectation. Additionally, in his post-sentencing letter to counsel, one would expect Mr. Speed to complain about the 7-to-8-year sentence he claims he was promised, but he does not. ECF No. 77-2. In sum, Mr. Speed has offered no reason why this Court should find his sworn statements at the plea colloquy were false. Blackledge, 431 U.S. at 74; Winthrop- Redin, 767 F. 3d at 1217. The Court does not credit Mr. Speed’s assertion in his § 2255 motion or his testimony at the evidentiary hearing that the Government or Mr. Brown promised him a 5K1 or a 7-to-8-year sentence. Because no such promises were made, counsel was not ineffective for giving Mr. Speed faulty advice regarding entry of his plea. Furthermore, counsel was not ineffective in failing to make a meritless objection to the Government’s alleged breach of the non-existent agreement to file a 5K1 motion. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 8 of 16
Page 9 of 16 Even if Mr. Brown had filed a motion for specific performance as Mr. Speed argues he should have, the motion would not have been successful. The decision to file a 5K1 motion is a matter of prosecutorial discretion. United States v. Rothstein, 939 F. 3d 1286, 1292 (11th Cir. 2019). As Mr. Speed was told during his change of plea hearing, judicial review of a prosecutor’s decision not to file a substantial assistance motion is appropriate only when there has been an allegation and substantial showing that the prosecutor refused to file a substantial assistance motion because of a constitutionally impermissible motivation, such as race or religion. Wade v. United States, 504 U.S. 181, 185-86 (1992). No unconstitutional motive has been alleged in this case. Mr. Speed’s belief that he had “provided substantial assistance” ECF No. 47-1 at 8, was not a basis for counsel to challenge the Government’s decision not to file the motion. Wade, 504 U.S. at 186 (in the absence of an unconstitutional motive, a defendant’s claim that he provided substantial assistance does not entitled him to a remedy). In sum, Mr. Speed has not shown that his counsel was ineffective through deficient performance or prejudice. See Hill v. Lockhart, 474 U.S. 52, 58-59 (applying Strickland ineffective assistance of counsel test to guilty pleas). No relief is warranted on Ground One. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 9 of 16
Page 10 of 16 B. Ground Two -- Failure to file an appeal 1. Legal Standard A lawyer who disregards a client’s specific instructions to file a notice of appeal acts in a manner that is professionally unreasonable. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citations omitted). Since a defendant whose lawyer fails to file an appeal upon request has been denied an entire judicial proceeding, prejudice is presumed, and the defendant is entitled to a belated appeal. Id. at 483. Here, the Court finds that Mr. Speed did not request that counsel file an appeal. 2. The written record At sentencing, the district court advised Mr. Speed he had the right to appeal and that any appeal must be taken within 14 days of the written judgment. ECF No. 53 at 26. The court instructed Mr. Speed to talk to Mr. Brown as soon as possible to be sure counsel clearly understood whether he wanted to appeal. The court also told Mr. Speed that either his attorney or the clerk of court could file a notice of appeal for him. Id. Mr. Speed asserts in his § 2255 motion that he was upset when he found out the Government would not be requesting a reduction in sentence based on his Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 10 of 16
Page 11 of 16 substantial assistance, so he asked counsel to file an appeal. ECF No. 47-1 at 17, 21. He claims Mr. Brown said he would file the appeal, but he failed to do so. Id. In his affidavit, Mr. Brown states that Mr. Speed never asked him or the clerk to file a notice of appeal. ECF No. 54-1 at 7. Mr. Brown spoke to Mr. Speed and his family multiple times after sentencing, and their only concern was whether he would be able to get the related state case dismissed. Id. In fact, counsel said that Mr. Speed “was actually happy after sentencing that the court did not sentence him in excess of fifteen (15) years.” Id. After reviewing the Government’s response, I directed Mr. Speed to file a sworn reply, with details about all discussions he had with Mr. Brown about his appeal and any witnesses to the discussions. ECF No. 55. In his reply, Mr. Speed claimed he spoke with counsel immediately after sentencing in both the courtroom and the attorney-client conference room and he “clearly and specifically” told counsel “I want you to file a notice of appeal.” ECF No. 61 at 1. According to Mr. Speed, Mr. Brown responded, “I’ll take care of it,” leading Mr. Speed to believe he would file the notice of appeal. Id. Mr. Speed said he relied on counsel’s assurance, and he did not find out no notice of appeal had ever been filed until “months later” when he inquired and learned “no appellate docket existed in [his] case.” Id. at 2. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 11 of 16
Page 12 of 16 Because of the conflicting factual assertions, the Court scheduled an evidentiary hearing. 3. Discussion The purpose of the evidentiary hearing is to weigh the competing versions of the facts and make a credibility determination. Rivers v. United States, 777 F. 3d 1306, 1329-30 (11th Cir. 2000) (Tjoflat, J., concurring) (equating an evidentiary hearing in a § 2255 proceeding to a bench trial). I find that Mr. Speed was not a credible witness, and he did not ask Mr. Brown to file a notice of appeal. Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017) (A “§ 2255 movant ‘bears the burden to prove the claims in his § 2255 motion.’”). Mr. Speed made multiple contradictory assertions in his § 2255 motion and there were inconsistencies in his testimony. He did not appear to have a good memory about significant details, such as who helped him write the statement he read at sentencing. Furthermore, the undated letter he sent to counsel after sentencing makes no mention of either an appeal or the specific 7-to-8-year sentence he was allegedly promised. ECF No. 77-2 at 1. Instead, he merely asks why he did not receive credit for cooperating (ignoring the fact that he was sentenced 82 months Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 12 of 16
Page 13 of 16 below the lowest end of the advisory guidelines range and his cooperation was considered by the court).2 Although Mr. Brown did not document Mr. Speed’s decision not to pursue an appeal,3 his testimony was more credible. Mr. Brown testified that he discussed with Mr. Speed whether he wanted to file an appeal, and Mr. Speed never indicated that he wanted to do so. Mr. Brown recalled that Mr. Speed’s focus was on the related state case, given his 30-year sentencing exposure there. This position is supported by Mr. Speed’s post-sentencing letter in which he asks for proof that the state case was dismissed. ECF No. 77-2 at 1. Here, Mr. Speed’s sentence was not only well below the advisory guidelines range but also the lowest sentence he could have legally received. Of course, a defendant is entitled to appeal irrespective of any viable appellate issues. See Peguero v. United States, 526 U.S. 23, 28 (1999). Additionally, filing a notice of appeal is a ministerial act requiring minimal time or effort. Mr. Brown testified that 2 See sentencing transcript, ECF No. 53 at 21-22 (“I understand the government is not filing the motion because it was not substantial assistance, but it is something I can properly take into account in applying the 3553(a) factors. … I have already taken into account cooperation ….”). 3 The district court advised Mr. Brown to write a letter to Mr. Speed if he decided not to appeal “to confirm there is no misunderstanding and to bring home to [Mr. Speed] the importance of the decision he has made.” ECF No. 53 at 26. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 13 of 16
Page 14 of 16 if a client wanted to appeal, even if he believed there were no viable issues, he would file a notice of appeal on the client’s behalf. After considering the record, I find Mr. Speed did not ask Mr. Brown to file a notice of appeal. Mr. Speed has not shown he is entitled to relief. IV. CONCLUSION Mr. Speed has not met his burden of showing that counsel was ineffective as to either of his grounds. Beeman, supra. I find there were no “promises” concerning Mr. Speed’s sentence that were not contained in his plea agreement, and counsel could not be ineffective for failing to challenge the Government’s decision not to file a 5K1 motion absent an allegation of an unconstitutional motive. Additionally, I find Mr. Speed’s assertion that he told counsel to file a notice of appeal is not credible. Therefore, his motion should be denied. V. CERTIFICATE OF APPEALABILITY Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 14 of 16
Page 15 of 16 § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules. After reviewing the record, the Court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483– 84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the district court deny a certificate of appealability in its final order. The second sentence of Rule 11(a) 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 either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Based on the foregoing, it is respectfully RECOMMENDED: 1. The § 2255 motion, ECF No. 47, be DENIED. 2. A certificate of appealability be DENIED. DONE on April 7, 2026. s/ Midori A. Lowry Midori A. Lowry United States Magistrate Judge Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 15 of 16
Page 16 of 16 NOTICE TO THE PARTIES This case was referred to a magistrate judge for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. An objecting party must serve a copy of its objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 4:21-cr-00038-RH-MAL Document 78 Filed 04/07/26 Page 16 of 16
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