USA v. SPEED

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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.
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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.
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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-
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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
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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.
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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,
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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.
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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.
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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.
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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
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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.
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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
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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.
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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.
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§ 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
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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.
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