USA v. Salter

1
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERSKINE D. SALTER, 	:
Petitioner, 	:
CRIMINAL NO. 09-00024-WS-M
vs. 	: 	CIVIL NO. 10-00458-WS-M
UNITED STATES OF AMERICA, 	:
Respondent. 	:
REPORT AND RECOMMENDATION
Pending before the Court is Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Docs. 34,
41), Petitioner’s Memorandums in Support of his Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255
(Docs. 38, 39, 50), and Respondent’s Opposition thereto. 	(Doc.
45). 	This action was referred to the undersigned Magistrate
Judge for report and recommendation pursuant to 28 U.S.C. §
636(b) and Rule 8(b) of the Rules Governing Section 2255 Cases. 1
1 The Honorable Chief United States District Judge William H.
Steele presided over the guilty plea proceedings in this action
and imposed the challenged sentence. 	On August 19, 2010, Chief
Judge Steele referred the matter to the undersigned Magistrate
Judge for entry of a Report and Recommendation. 	The undersigned
has reviewed the Petitioner’s motion and related documents, the
transcripts of the guilty plea hearing and sentencing hearing,
and all other relevant documents in the Court’s file and has
fully familiarized himself with the proceedings before Chief
Judge Steele. 	Based upon that review, the undersigned makes the
following report and recommendation.
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It is now ready for consideration. 	Because the record is
adequate to dispose of this matter, no evidentiary hearing is
required. 	It is recommended that Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Docs. 34,
41) be denied, that this action be dismissed, and that judgment
be entered in favor of Respondent, the United States of America,
and against Petitioner Erskine D. Salter.
I. BACKGROUND
On January 29, 2009, Petitioner was indicted for violating
Title 21 U.S.C. § 846 and § 841(b)(1)(B), conspiracy to possess
with intent to distribute over 500 grams of cocaine (Count One),
and 21 U.S.C. § 841(a)(1), possession with intent to distribute
approximately two kilograms of cocaine (Count Two). 	(Doc. 1).
On or about March 4, 2009, William E. Scully, Jr. was appointed
as counsel to represent Petitioner. 	(Doc. 10 at 1).
Pursuant to a plea agreement with the Government,
Petitioner pled guilty on April 16, 2009, to Count One of the
indictment charging a violation of 21 U.S.C. § 846, conspiracy
to possess with intent to distribute cocaine. 	(Doc. 18). 	The
Government agreed not to bring any additional charges related to
the facts underlying the indictment, to move to dismiss Count
Two at sentencing, and to recommend that Petitioner be sentenced
to the lower end of the sentencing guideline range as determined
by the Court. 	(Id. at 5). 	However, the United States filed an
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Enhancement Information with the Court because Petitioner had a
previous felony drug offense, and thus he faced a statutory
mandatory minimum sentence of ten years’ imprisonment and a
supervised release term of at least eight years. 	(Doc. 15).
At Petitioner’s sentencing hearing conducted on August 19,
2009, Chief Judge Steele sentenced Petitioner to one hundred
twenty 	months in prison, eight years of supervised release
following his release from prison, and an assessment of one
hundred dollars. 	(Doc. 31 at 2-5). 	The Court dismissed Count
Two of the indictment, upon the motion of the United States.
(Id.).
Petitioner did not file a notice of appeal. 	On August 19,
2010, Petitioner filed a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. 	(Doc. 34). 	On the same date,
Petitioner filed a Motion for Extension of Time in which to file
a memorandum in support of his § 2255 petition, and said motion
was granted by this Court on September 1, 2010. 	(Docs. 33, 35).
Petitioner was also ordered by this Court to re-file his motion
to vacate on this Court’s proper form, and he did so on December
22, 2010. 	(Docs. 35, 41). 	In his motion, Petitioner raises the
following two claims: 	(1) Petitioner’s counsel was ineffective
for failing to raise jurisdiction issues and the issue of
improper venue; and (2) Petitioner’s counsel was ineffective for
failing to challenge the sufficiency of the evidence as related
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to the conspiracy charge. 	(Doc. 41 at 4). 	On October 22, 2010,
Petitioner filed a Second Motion for Extension of Time for
filing a memorandum in support of his § 2255 petition, and that
motion was also granted by the Court on October 1, 2010. 	(Docs.
36, 37). 	Petitioner filed a Correction to his Memorandum in
Support of his § 2255 Motion on December 2, 2010, and a
Memorandum in Support of his § 2255 Motion on December 7, 2010.
(Docs. 38, 39).
On March 17, 2011, Respondent filed a response in
opposition to Petitioner’s Motion to Vacate arguing that
Petitioner’s claims are without merit. 	(Doc. 45). 	On March 28,
2011, Petitioner filed a Motion for Extension of Time to file a
response to Respondent’s reply in opposition to Petitioner’s
§ 2255 motion. 	(Doc. 46). 	This Court granted Petitioner’s
request on March 29, 2011. 	(Doc. 47). 	Petitioner filed a Reply
to Respondent’s Response, and a Memorandum in Support thereof,
on April 22, 2011. (Docs. 49, 50). 	In his Memorandum,
Petitioner asserts one additional claim: Petitioner’s counsel
was ineffective for failing to properly advise Petitioner of the
nature of the mandatory minimum sentence he received under Title
21 U.S.C. § 846. 	(Doc. 50 at 17). 	The Court now considers each
of Petitioner’s claims in turn.
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II. DISCUSSION
Petitioner argues in his Motion to Vacate that he is
entitled to habeas relief based on ineffective assistance of
counsel at the guilty plea stage of his proceedings.
Specifically, Petitioner claims that his counsel was ineffective
at the guilty plea stage for failing to raise the issue of
improper venue; for failing to challenge the sufficiency of the
evidence as related to the conspiracy charge; and for failing to
properly advise Petitioner of the nature of the mandatory
minimum sentence he would receive under Title 21 U.S.C. § 846.
(Doc. 41 at 4; Doc. 50 at 17).
In order to establish a claim of ineffective assistance of
counsel, a petitioner is required to show (1) that his
attorney’s representation fell below “an objective standard of
reasonableness” and (2) that a reasonable probability exists
that but for counsel’s unprofessional conduct, the result of the
proceeding would have been different. 	Strickland v. Washington,
466 U.S. 668 (1984). 	“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.”
Johnson v. Alabama, 256 F.3d 1156, 1176 (11 th Cir. 2001), cert.
denied sub nom. Johnson v. Nagle, 535 U.S. 926 (2002). 	The
Strickland standard for evaluating claims of ineffective
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assistance of counsel was held applicable to guilty pleas in
Hill v. Lockhart, 474 U.S. 52, 58 (1985).
In this context, the first prong of
Strickland requires the defendant to show
his plea was not voluntary because he
received advice from counsel that was not
within the range of competence demanded of
attorneys in criminal cases. 	See id. at
369-70. 	The second prong “focuses on
whether counsel’s constitutionally
ineffective performance affected the outcome
of the plea process,” meaning the defendant
must show “a reasonable probability that,
but for counsel’s errors,” he would have
entered a different plea. 	Id. at 370
(stating the test in the context of an
accepted guilty plea); see also Diaz v.
United States, 930 F.2d 832, 835 (11th Cir.
1991) (applying the test to a rejected plea
agreement).
Scott v. U.S., 325 Fed. Appx. 822, 824 (11 th Cir. 2009)
(unpublished). 2
Indeed, in the guilty-plea context, the Eleventh Circuit
has held that “’counsel 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 can make an informed and conscious choice between
2 “Pursuant to Eleventh Circuit Rule 36-2, unpublished
opinions are not considered binding precedent, but may be cited
as persuasive authority.” 	Lanier Constr., Inc. v. Carbone
Props. of Mobile, LLC, 253 Fed. Appx. 861, 865 n.5 (11th Cir.
2007) (unpublished).
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accepting the prosecution’s offer and going to trial.’” 	Carter
v. United States, 288 Fed. Appx. 648, 649 (11 th Cir. 2008)
(quoting Wofford v. Wainwright, 748 F.2d 1505, 1508 (11 th Cir.
1984)). 3
Moreover, “[c]onclusory allegations of ineffective
assistance are insufficient.” 	Wilson v. United States, 962 F.2d
996, 997 (11 th Cir. 1992) (internal quotes omitted).
Furthermore, “it is axiomatic that the failure to raise
nonmeritorious issues does not constitute ineffective
assistance” of counsel. 	Bolender v. Singletary, 16 F.3d 1547,
1573 (11 th Cir. 1994).
A. 	Petitioner’s Guilty Plea.
On April 16, 2009, Petitioner, represented by attorney
Scully, appeared in open court and entered a plea of guilty to
Count One of the indictment charging a violation of 21 U.S.C. §
846, conspiracy to possess with intent to distribute cocaine.
(Doc. 44). 	During the hearing the Court determined that
Petitioner was twenty-two years of age, had completed one year
of college, and was not under the influence of any drug,
medication or alcoholic beverage of any kind. 	(Doc. 44 at 5-6).
3 Thus, “’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 (citation
omitted).
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Petitioner also stated under oath that he had read and
understood the indictment in his case and was fully satisfied
with the representation he had received from his attorney, Mr.
Scully. 	(Id. at 6-7). 	Petitioner acknowledged that he had
signed the written Plea Agreement, and that by signing it, he
was acknowledging that he had read it and understood it and
agreed with it. 	(Id. at 7-8).
During the hearing, the following was also stated:
THE 	COURT: 	Have 	there 	been 	any 	promises 	made
to 	you 	by 	anyone 	or 	has 	anyone 	attempted 	in
any 	way 	to 	force 	you 	to 	plead 	guilty 	or 	to
pressure 	you 	or 	threaten 	you 	in 	any 	way 	…
Mr. Salter?
DEFENDANT SALTER: 	No, sir.
.....
THE 	COURT: 	And 	for 	Mr. 	Salter, 	if 	convicted
of 	Count 	One 	of 	the 	indictment, 	you 	could
receive 	a 	– 	well, 	let 	me 	ask 	if 	the 	enhanced
sentence 	provision, 	sentencing 	provisions,
do they apply in this case?
MR. 	SCULLY: 	They 	do, 	Judge. 	The 	Government
has filed an information to that effect.
THE 	COURT: 	All 	right. 	Mr. 	Salter, 	if
convicted 	of 	Count 	One, 	you 	could 	receive 	a
term 	of 	imprisonment 	of 	no 	less 	than 	10
years 	up 	to 	life 	in 	prison, 	a 	fine 	not 	to
exceed 	four 	million 	dollars, 	supervised
release 	term 	up 	to 	eight 	years, 	and 	a
mandatory 	special 	assessment 	of 	$100. 	Do
you understand that?
DEFENDANT SALTER: Sir, yes, sir.
…..
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THE 	COURT: 	Well, 	Mr. 	Salter, 	you 	understand
that 	if 	convicted 	in 	this 	case, 	that 	could
affect 	any 	parole 	or 	supervised 	release 	or
probation 	that 	you 	might 	have 	in 	another
case that could be subject to revocation?
DEFENDANT SALTER: Yes, sir.
…..
THE 	COURT: 	Now, 	the 	United 	States
Sentencing 	Commission 	has 	issued 	guidelines
for 	judges 	to 	consider 	in 	determining 	the
sentence 	in 	a 	criminal 	case. 	Have 	you 	and
your 	attorney 	talked 	about 	how 	those
guidelines 	might 	affect 	your 	case…Mr.
Salter?
DEFENDANT SALTER: Yes, Sir.
THE 	COURT: 	The 	way 	in 	which 	the 	Sentencing
Guidelines 	apply 	to 	your 	case 	might 	be
affected 	by 	what 	you 	say 	to 	the 	Court 	and 	to
the 	probation 	officer. 	The 	Court 	will 	not
be 	able 	to 	determine 	an 	appropriate 	sentence
for 	your 	case 	until 	after 	a 	presentence
report 	has 	been 	completed 	and 	you 	and 	the
United 	States 	have 	had 	an 	opportunity 	to
challenge 	the 	facts 	reported 	by 	the
probation 	officer. 	Do 	you 	understand
that…Mr. Salter?
DEFENDANT SALTER: Yes, sir.
THE 	COURT: 	The 	sentence 	imposed 	might 	be
different 	from 	any 	estimate 	your 	attorney 	or
anyone 	else 	might 	have 	given 	you. 	Do 	you
understand that…Mr. Salter?
DEFENDANT SALTER: Yes, sir.
THE 	COURT: 	After 	it 	has 	been 	determined 	what
guideline 	applies 	to 	a 	case, 	the 	judge 	has
the 	authority 	to 	impose 	a 	sentence 	that 	is
more 	severe 	or 	less 	severe 	than 	the 	sentence
called 	for 	in 	the 	Guidelines. 	Do 	you
understand that… Mr. Salter?
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DEFENDANT SALTER: Yes, sir.
(Id. at 8-11). Petitioner testified that he understood that his
sentence might be longer than any estimate given to him by his
attorney, and that if the sentence is more severe, that he was
still bound by his guilty plea. 	(Id. at 11-12). 	After being
advised that Petitioner had “the right to plead not guilty to
any offense charged against” him, Petitioner was advised the
following:
THE COURT: 	All 	right. 	And 	for 	Mr.
Salter, 	the 	factual 	resume 	in 	your 	case 	has 	a
statement 	of 	the 	elements 	of 	the 	offense
charged 	in 	Count 	One 	of 	the 	indictment, 	which
states 	a 	violation 	of 	Title 	21, 	United 	States
Code, Section 846.
The 	elements 	of 	that 	offense 	are 	that
two 	or 	more 	persons 	in 	some 	way 	or 	manner
came 	to 	a 	mutual 	understanding 	to 	possess
with 	intent 	to 	distribute 	cocaine; 	and 	that
you 	knowingly 	and 	willfully 	became 	a 	member
of such conspiracy.
Do 	you 	understand 	that 	those 	are 	the
elements 	of 	the 	offense 	to 	which 	you 	are
pleading guilty?
DEFENDANT SALTER: 	Sir, yes, sir.
THE COURT: 	And 	do 	you 	fully 	understand
that 	if 	there 	was 	a 	trial 	in 	this 	case, 	the
United 	States 	would 	be 	required 	to 	present
sufficient 	evidence 	to 	prove 	each 	of 	these
essential 	elements 	beyond 	a 	reasonable
doubt?
DEFENDANT SALTER: 	Sir, yes, sir.
THE COURT: 	Also 	included 	is 	a 	statement
of 	offense 	conduct. 	Did 	you, 	in 	fact,
commit 	the 	acts 	and 	do 	the 	things 	that 	you
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have 	admitted 	to 	in 	this 	statement 	of
offense conduct?
DEFENDANT SALTER: 	Sir, yes, sir.
THE COURT: 	Then 	I 	find 	that 	the 	facts
and 	acts 	to 	which 	you 	have 	admitted 	support
a 	violation 	of 	the 	charge 	contained 	in 	Count
One 	of 	the 	indictment. 	How 	do 	you 	now 	plead
to that charge, guilty or not guilty?
DEFENDANT SALTER: 	Guilty, sir.
(Id. at 13, 15-16).
“There is a strong presumption that the statements made
during the [plea] colloquy are true.” 	United States v. Medlock,
12 F.3d 185, 187 (11 th Cir. 1994), cert. denied 513 U.S. 864
(1994). 	“[W]hen 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 (11 th
Cir. 1988).
B. 	Ineffective Assistance of Counsel: Improper Venue.
In Claim One, Petitioner contends that his counsel was
ineffective for failing to object to improper venue in his
prosecution. 	(Doc. 39 at 8-9). 	Petitioner asserts that venue
was improper because Respondent failed to prove “either of the
essential elements of the alleged crime with respects to (1)
whether an actual conspiracy ever existed; (2) that the
Petitioner ever actually ‘possessed’ the alleged cocaine in the
‘State of Alabama;’ and (3) that there were (sic) ever any
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factual ‘intent’ to ‘distribute’ the alleged cocaine in the
‘State of Alabama.’” 	(Id.).
The Court notes that “[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 (11 th Cir. 1992)
(citation omitted). 	This waiver includes claims of ineffective
assistance of counsel that do not implicate the decision to
plead guilty. 	Id.; see also Smith v. Estelle, 711 F.2d 677, 682
(5 th Cir. 1983) (“Smith’s guilty plea was voluntary and knowingly
made, [thus] he cannot now attack the ineffectiveness of his
counsel in any respects other than as the alleged
ineffectiveness bears upon counsel’s faulty advice that coerced
a guilty plea.”), cert. denied sub nom. Smith v. McKaskle, 466
U.S. 906 (1984). 	As established by the record quoted
extensively above, Petitioner’s guilty plea was knowingly and
voluntarily entered, and thus, he has waived this claim of
ineffective assistance of counsel. 4
4 To determine that a guilty plea is knowing and voluntary, a
district court must comply with Rule 11 and address its three
core concerns: 	“ensuring that a defendant (1) enters his guilty
plea free from coercion, (2) understands the nature of the
charges, and (3) understands the consequences of his plea.”
United States v. Moriarty, 429 F.3d 1012, 1019 (11 th Cir. 2005)
(citation omitted). 	As set out above, the Court confirmed in
(Continued)
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Even if this claim of ineffective assistance had not been
waived, “the general rule is that a guilty plea waives all non-
jurisdictional challenges to a conviction.” 	United States v.
Smith, 532 F.3d 1125, 1127 (11 th Cir. 2008) (citing United States
v. Reynolds, 215 F.3d 1210, 1215 (11 th Cir. 2000). 	Thus, when
Petitioner signed his Plea Agreement and entered his guilty plea
in open court, he waived any challenge he might have had to a
claim of improper venue in this action, as venue is waived by a
defendant when he enters his plea of guilt. 5 See United States
the detailed colloquy during the guilty plea hearing on April
16, 2009, that Petitioner understood the nature of the charges
against him and understood the length of the sentence he would
potentially receive. 	(Doc. 44). 	Petitioner’s representations
during the plea proceeding, along with those of his lawyer and
the prosecutor, and the findings by the Court when accepting the
plea, “constitute a formidable barrier in any subsequent
collateral proceedings.” 	Blackledge v. Allison, 431 U.S. 63,
73-74 (1977); see also Thompson v. Wainwright, 787 F.2d 1447,
1460 (11 th Cir. 1986) (“’[T]he representations of the defendant
[at a plea hearing] as well as any other findings made by the
judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings.’”), cert. denied sub nom.
Thompson v. Dugger, 481 U.S. 1042 (1987). Indeed, “[t]here is a
strong presumption that the statements made during the [plea]
colloquy are true [,]” United States v. Medlock, 12 F.3d 185,
187 (11 th Cir.), cert denied, 513 U.S. 864 (1994), and
consequently, a defendant bears a “heavy burden” to show that
his statements under oath were false, United States v. Rogers,
848 F.2d 166, 168 (11 th Cir. 1988) (citation omitted). 	In this
case, it is clear from the plea colloquy that Petitioner’s
guilty plea was knowing and voluntary. 	(Doc. 44 at 4-16).
5 Petitioner’s “Factual Resume” states the following, in
part, regarding Petitioner’s offense:
(Continued)
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v. Carpenter, 24 Fed. Appx. 899, 906 (10 th Cir. 2001)
(unpublished) (“Unlike challenges to subject matter
jurisdiction, venue challenges in the criminal context, like
those in the civil context, are waiveable, and will be deemed
waived by a defendant who pleads guilty.”) (citing United States
v. Calderon, 243 F.3d 587, 589 (2d Cir. 2001))(collecting cases
and explaining that “[v]enue is not jurisdictional” and is
waived by a “valid plea”), cert. denied, 533 U.S. 960 (2001);
United States v. Miller, 111 F.3d 747, 750 (10th Cir.1997) (“A
defendant can waive venue rights through inaction, such as
failing to object to venue during trial.”); United States v.
Evans, 62 F.3d 1233, 1236 (9th Cir.1995) (noting how a
defendant's guilty plea waives the right to challenge venue).
Defendant, 	ERSKINE 	D. 	SALTER, 	admits 	in 	open
court 	and 	under 	oath 	that 	the 	following
statement 	is 	true 	and 	correct 	and
constitutes evidence in this case.
That 	beginning 	on 	or 	about 	January 	1, 	2008
and 	continuing 	on 	or 	about 	September 	29,
2008, 	in 	Mobile, 	Alabama, 	and 	elsewhere, 	the
defendant 	knowingly 	and 	willfully 	conspired
with 	other 	persons, 	both 	known 	and 	unknown
to 	the 	grand 	jury, 	to 	possess 	with 	intent 	to
distribute 	cocaine, 	a 	Schedule 	II 	controlled
substance. 	The 	quantity 	of 	cocaine 	involved
in the conspiracy exceeded 500 grams.
(Doc. 18 at 8).
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Furthermore, even if Petitioner could now challenge venue
in this action, he has already admitted that venue was proper
when he signed his Plea Agreement on April 16, 2009. 	(Doc. 18
at 7). 	Attached to the Plea Agreement is a Factual Resume which
specifically states that Petitioner “knowingly and willfully
conspired” in “Mobile, Alabama, and elsewhere.” 	(Id. at 8).
The Factual Resume, signed by Petitioner, documented that
Petitioner, a resident of Mobile, Alabama, conspired in Mobile,
Alabama, to possess with intent to distribute cocaine. 	(Id.).
Evidence reflected that on August 12, 2008, Petitioner, while
traveling from Alabama, through Louisiana to Texas, was pulled
over by Louisiana law enforcement. (Id. at 9). 	Louisiana law
enforcement searched Petitioner’s vehicle, finding approximately
$57,530.00 in cash, hidden in the passenger side rear quarter
panel of the vehicle. 	(Id.). 	Additionally, K-9 drug dogs
alerted law enforcement to the scent of illegal drugs in the
vehicle’s compartment where the currency was found. 	(Id.).
Approximately one month later, on September 29, 2008, the same
Louisiana law enforcement officer stopped Petitioner in
Louisiana and discovered two kilograms of cocaine in
Petitioner’s vehicle. 	(Id. at 12).
Therefore, Petitioner has waived the claim of ineffective
assistance of counsel for his attorney’s failure to raise the
issue of improper venue, and even if the Court were to consider
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the claim, Petitioner has admitted venue, and thus, this claim
is due to be denied.
C. 	Ineffective Assistance of Counsel: Conspiracy.
Next, in his Motion to Vacate, Petitioner claims that he is
entitled to habeas relief based upon ineffective assistance of
counsel for his attorney’s failure to object to the sufficiency
of the evidence of the conspiracy charge. 	(Doc. 41 at 4). 	At
his guilty plea hearing, Petitioner in open court admitted to
the actual conspiracy, as the Court detailed the elements of it
as follows:
THE 	COURT: 	All 	right. 	And 	for 	Mr. 	Salter,
the 	factual 	resume 	in 	your 	case 	has 	a
statement 	of 	the 	elements 	of 	the 	offense
charged 	in 	Count 	One 	of 	the 	indictment,
which 	states 	a 	violation 	of 	Title 	21, 	United
States Code, Section 846.
The 	elements 	of 	that 	offense 	are 	that
two 	or 	more 	persons 	in 	some 	way 	or 	manner
came 	to 	a 	mutual 	understanding 	to 	possess
with 	intent 	to 	distribute 	cocaine; 	and 	that
you 	knowingly 	and 	willfully 	became 	a 	member
of 	such 	conspiracy. 	Do 	you 	understand 	that
those 	are 	the 	elements 	of 	the 	offense 	to
which you are pleading guilty?
DEFENDANT SALTER: Sir, yes, sir.
(Doc. 44 at 15-16). 	Additionally, Petitioner signed the Plea
Agreement with the Factual Resume which states in more detail
facts concerning the “conspiracy” which Petitioner now claims
that his attorney was ineffective for failing to dispute. 	(Doc.
18). 	Petitioner, at the guilty plea hearing, assured the Court
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that no one had threatened or pressured him to plead guilty, or
in any way, forced him to plead guilty to the conspiracy charge.
(Doc. 44 at 8).
“Solemn declarations in open court carry a strong
presumption of verity.” 	Blackledge v. Allison, 431 U.S. 63, 74
(1977). 	“Petitioner cannot circumvent the terms of his plea
agreement merely because he does not like the outcome at
sentencing.” 	Bradshaw v. U.S., 2005 WL 1669036, *4 (M.D. Fla.
2005) (unpublished) (citing U.S. v. Bushert, 997 F.2d 1343, 1350
(11 th Cir. 1993)).
The Court finds that Petitioner was fully informed of the
nature of the charges against him, and the consequences of a
guilty plea to the conspiracy charge and that he voluntarily
pled guilty to that charge. 	Petitioner cannot now seek to claim
that his attorney was ineffective for failing to challenge
sufficient evidence to which Petitioner willingly and openly
pled guilty to in exchange for favorable treatment by the
Government. 	“[I]t is axiomatic that the failure to raise
nonmeritorious issues does not constitute ineffective
assistance” of counsel. Bolender v. Singletary, 16 F.3d 1547,
1573 (11th Cir. 1994). Rather, an attorney's performance may be
found ineffective in the constitutional sense only if “counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
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just result.” Strickland v. Washington, 466 U.S. 668, 686
(1984).
Therefore, for the reasons above, Petitioner’s second claim
of ineffective assistance of counsel is also due to be denied.
D. 	Ineffective Assistance of Counsel: Sentencing.
Last, Petitioner claims that if he had been properly
advised by his counsel, he would have chosen to go to trial,
where Petitioner now believes he would have likely received a
shorter sentence than that he received by pleading guilty.
(Doc. 50 at 19).
Again, “[p]etitioner cannot circumvent the terms of his
plea agreement merely because he does not like the outcome at
sentencing.” 	Bradshaw v. U.S., 2005 WL 1669036, *4 (M.D. Fla.
2005) (unpublished) (citing U.S. v. Bushert, 997 F.2d 1343, 1350
(11 th Cir. 1993)). “Conclusory allegations of ineffective
assistance are insufficient.” Wilson v. United States, 962 F.2d
996, 997 (11th Cir. 1992) (internal quotes omitted).
Now that Petitioner is unhappy with his sentence, he would
have this Court believe that had he fully understood the
charges, and fully understood the projected sentence, he would
not have pled guilty to Count One but would have gone on to
trial on Counts One and Two in this matter. 	However, just as
before, the record belies Petitioner’s claim, as just as he was
advised by this very Court as to the elements of conspiracy, he
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was also advised in open court regarding his potential sentence.
The Court stated as follows:
THE 	COURT: 	All 	right. 	Mr. 	Salter, 	if
convicted 	of 	Count 	One, 	you 	could 	receive 	a
term 	of 	imprisonment 	of 	no 	less 	than 	10
years 	up 	to 	life 	in 	prison, 	a 	fine 	not 	to
exceed 	four 	million 	dollars, 	supervised
release 	term 	up 	to 	eight 	years, 	and 	a
mandatory special assessment of $100.
Do you understand that?
DEFENDANT SALTER: Sir, yes, sir.
(Doc. 44 at 9). 	Petitioner also acknowledged to the Court that
he understood that any sentence imposed might be different from
any estimate given to him by his attorney. 	(Id. at 11).
Moreover, in exchange for Petitioner’s guilty plea on the
conspiracy charge, the Government promised not to pursue
additional charges, to move to dismiss the remaining charge, and
to recommend that Petitioner be sentenced at the low end of the
advisory guideline range, all of which was accomplished. 	(Doc.
18 at 5).
Petitioner has failed to show that counsel was deficient in
advising him regarding potential sentencing guidelines, and
that, but for counsel’s errors, he would have entered a
different plea. 	Furthermore, the Court advised Petitioner
before he entered his plea of guilt as to the potential length
of sentence as well. 	Therefore, Petitioner’s last claim of
ineffective assistance of counsel is also due to be denied.
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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings, the undersigned recommends that a certificate of
appealability in this case be denied. 	28 U.S.C. foll. § 2255,
Rule 11(a) (“The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant.”). The habeas corpus statute makes clear that an
applicant is entitled to appeal a district court’s denial of his
habeas corpus petition only where a circuit justice or judge
issues a certificate of appealability. 	28 U.S.C. § 2253(c)(1).
A certificate of appealability may issue only where “the
applicant has made a substantial showing of the denial
of a constitutional right.” 	28 U.S.C. § 2253(c)(2). 	Where a
habeas petition is being denied, in part, on procedural grounds
without reaching the merits of an underlying constitutional
claim, “a COA should issue [only] when the prisoner shows . . .
that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” 	Slack
v. McDaniel, 529 U.S. 473, 484 (2000). 	Where a habeas petition
is being denied on the merits of an underlying constitutional
claim, a certificate of appealability should issue only when the
petitioner demonstrates “that reasonable jurists would find the
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district court’s assessment of the constitutional claims
debatable or wrong.” 	Id. (“To obtain a COA under § 2253(c), a
habeas prisoner must make a substantial showing of the denial of
a constitutional right, a demonstration that, under Barefoot [v.
Estelle, 463 U.S. 880, 893 (1983)], includes showing 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.”) (internal quotation
marks omitted); accord Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).
None of Petitioner’s claims are such as would warrant the
issuance of a Certificate of Appealability. 	The recommendation
that these claims be denied is based on the straightforward
application of clear Circuit precedent, and no reasonable jurist
could differ on the appropriate disposition of the claims on the
record presented. 	It is thus recommended that the Court deny
any request for a Certificate of Appealability.
CONCLUSION
For the foregoing reasons, it is recommended that
Petitioner’s § 2255 Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Docs. 34, 41) be
denied, that this action be dismissed, and that judgment be
entered in favor of Respondent, the United States of America,
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and against Petitioner, Erskine D. Salter. 	In addition, the
undersigned Magistrate Judge is of the opinion that Petitioner
is not entitled to issuance of a Certificate of Appealability.
It is so recommended.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND
RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND
FINDINGS CONCERNING NEED FOR TRANSCRIPT
l. 	Objection. 	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. 	Failure to 	do so will bar a de novo
determination by the district judge of anything in the
recommendation and will bar an attack, on appeal, of the factual
findings of the Magistrate Judge. 	See 28 U.S.C. § 636(b)(1)(C);
Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). 	The
procedure for challenging the findings and recommendations of
the Magistrate Judge is set out in more detail in SD ALA LR 72.4
(June 1, 1997), which provides that:
A party may object to a recommendation entered by a
magistrate judge in a dispositive matter, that is, a
matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing
a ‘Statement of Objection to Magistrate Judge’s
Recommendation’ within ten days 15 after being served
with a copy of the recommendation, unless a different
time is established by order. 	The statement of
objection shall specify those portions of the
recommendation to which objection is made and the
basis for the objection. 	The objecting party shall
submit to the district judge, at the time of filing
the objection, a brief setting forth the party’s
arguments that the magistrate judge’s recommendation
should be reviewed de novo and a different disposition
made. 	It is insufficient to submit only a copy of the
original brief submitted to the magistrate judge,
15 Effective December 1, 2009, the time for filing written
objections was extended to “14 days after being served with a
copy of the recommended disposition[.]” 	Fed. R. Civ. P.
72(b)(2).
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although a copy of the original brief may be submitted
or referred to and incorporated into the brief in
support of the objection. 	Failure to submit a brief
in support of the objection may be deemed an
abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a
Court of Appeals; only the district judge's order or judgment
can be appealed.
2. 	Transcript (applicable Where Proceedings Tape Recorded).
Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the
Magistrate Judge finds that the tapes and original records in
this case are adequate for purposes of review. 	Any party
planning to object to this recommendation, but unable to pay the
fee for a transcript, is advised that a judicial determination
that transcription is necessary is required before the United
States will pay the cost of the transcript.
DONE this 1 st day of September, 2011.
_________________________________
BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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