1:20-cr-00022•USA v. Jackson
Testo completo
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION BRYAN KEITH JACKSON, ) BOP Reg. # 17995-003, ) Movant, ) ) CIVIL ACTION NO. 1:22-00010-WS-N v. ) )CRIMINAL ACTION NO. 1:20-00022-WS-N UNITED STATES OF AMERICA, ) Respondent. ) REPORT AND RECOMMENDATION BRYAN KEITH JACKSON, a federal prisoner proceeding without counsel (pro se), filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 dated January 3, 2022 (Doc# 23), seeking relief from the judgment entered against him in the above-numbered criminal action.1 The assigned District Judge has referred Jackson’s § 2255 motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Rule 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (1/11/2022 electronic reference notation). 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 1 All “Doc#” citations herein refer to the docket of the above-numbered criminal action. The companion civil action has been opened for administrative and statistical purposes only, and does not contain or receive any filings. Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 1 of 23 PageID# <pageID>
appropriate disposition of the § 2255 motion, in accordance with 28 U.S.C. § 636(b)(1) and Rule 8(b) of the Rules Governing Section 2255 Proceedings. Upon initial consideration of the § 2255 motion under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the undersigned finds that it plainly appears from the motion and the record of prior proceedings that Jackson is not entitled to relief on any claim, and that his motion is therefore due to be DENIED and DISMISSED with prejudice. I. Procedural Background On January 30, 2020, the grand jury for this district issued a 7-count indictment against Jackson charging various drug and firearms offenses. (Doc# 1). On March 5, 2020, Jackson was appointed counsel and arraigned on the indictment, pleading not guilty to all charges. (See Docs# 5, 7). However, on June 22, 2020, Jackson changed his plea and entered a plea of guilty to Counts 1, 4, and 5, pursuant to a written plea agreement with the Government. (See Docs# 45, 50). On December 29, 2020, the Court sentenced Jackson to a total term of imprisonment of 160 months, a subsequent total term of supervised release of 5 years, and a monetary assessment. (See Docs# 69, 71). The remaining counts were dismissed on motion of the Government; written judgment was entered on January 8, 2021, and was amended on January 21, 2021, to correct a clerical error. (See id.). No party directly appealed that judgment within the time permitted by law. See Fed. R. App. P. 4(b). Jackson is deemed to have filed the present § 2255 motion, his first, on January 3, 2022, the date he signed it. See Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015) (per Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 2 of 23 PageID# <pageID>
curiam) (“Under [the Antiterrorism and Effective Death Penalty Act]’s statute of limitations, a federal prisoner must ordinarily file his § 2255 petition within one year of the date on which his judgment of conviction becomes final. We apply the prison mailbox rule, under which a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing. We assume, absent evidence to the contrary, that a prisoner delivered a filing to prison authorities on the date that he signed it.” (citations and quotations omitted)). II. Legal Standards a. General Standards of Review under § 2255 Title 28 U.S.C. § 2255 “permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence.” Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). However, “[o]nce the defendant’s chance to appeal has been waived or exhausted,” a court is “entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum.” United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). “[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). “Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 3 of 23 PageID# <pageID>
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). Once a petitioner files a § 2255 motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true, would entitle him to relief.” Aron[ v. United States], 291 F.3d [708,] 715[ (11th Cir. 2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “[A] petitioner need only allege—not prove—reasonably specific, non- conclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6. However, a district court need not hold a hearing if the allegations are “patently frivolous,” “based upon unsupported generalizations,” or “affirmatively contradicted by the record.” Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 519, 520–21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the ... affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.”). Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). In making this determination, a court must “liberally construe pro se filings, including pro se applications for relief pursuant to § 2255.” Winthrop-Redin, 767 F.3d at 1215. b. Effect of Guilty Plea The “ ‘concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.’ ” Bousley v. United States, 523 U.S. 614, 621, 118 S. Ct. 1604140 L. Ed. 2d 828 (1998) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979)). “ ‘A Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 4 of 23 PageID# <pageID>
defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.’ ” United States v. De La Garza, 516 F.3d 1266, 1271 (11th Cir. 2008) (quoting Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (per curiam)). See also, e.g., United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) (“‘A guilty plea, since it admits all the elements of a formal criminal charge, waives all non-jurisdictional defects in the proceedings against a defendant.’” (quoting United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (per curiam)); United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) (“ ‘Generally, entering a guilty plea waives a defendant’s right to all non-jurisdictional challenges to a conviction.’ ” (quoting United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009)). Stated differently, “a voluntary and intelligent plea made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984). Therefore, when, as here, a § 2255 motion is filed collaterally challenging convictions obtained pursuant to a guilty plea, “the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989). See also Bousley, 523 U.S. at 618 (“A plea of guilty is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’ (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 5 of 23 PageID# <pageID>
c. Ineffective Assistance of Counsel The Sixth Amendment gives criminal defendants the right to effective assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “[F]ailure to raise an ineffective- assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003). Indeed, “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Id. at 504. See also United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) (“An ineffective assistance claim should usually be raised in a motion under 28 U.S.C. § 2255.” (citing United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010))). “To establish an ineffective assistance of counsel claim, a defendant must show that (1) ‘counsel's representation fell below an objective standard of reasonableness’ and (2) that such failure prejudiced him in that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (per curiam) (quoting Strickland, 466 U.S. at 687-88, 694). “ ‘Conclusory allegations of ineffective assistance are insufficient.’ ” Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam) (quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991)). Moreover, “[b]ecause both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 6 of 23 PageID# <pageID>
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, 134 S. Ct. 10, 187 L. Ed. 2d 348 (2013) (“[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance…”). “A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance.” Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992). In evaluating the first, or “performance,” prong of Strickland, “[j]udicial scrutiny of counsel's performance must be highly deferential.” [Strickland, 466 U.S.] at 689, 104 S. Ct. at 2065. Because retrospective evaluation of a lawyer’s performance can be difficult, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that ... the challenged action might be considered sound trial strategy.” Id. (internal quotations omitted). A Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 7 of 23 PageID# <pageID>
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, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (citing Strickland, 466 U.S. at 689-91) (citations and quotations omitted). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 8 of 23 PageID# <pageID>
“A guilty plea is open to attack on the ground that counsel did not provide the defendant with ‘reasonably competent advice.’ ” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333 (1980) (quoting McMann[ v. Richardson], 397 U.S. [759,] 770, 90 S. Ct. [1441,] 1448[ (1970)]). The Supreme Court has held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Slicker v. Dugger, 878 F.2d 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 Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 9 of 23 PageID# <pageID>
the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. 474 U.S. at 59, 106 S. Ct. at 370; McCoy, 804 F.2d at 1198–99. 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 Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 10 of 23 PageID# <pageID>
of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (per curiam); Downs–Morgan v. United States, 765 F.2d 1534, 1539 (11th Cir. 1985). An attorney’s responsibility is to investigate and to evaluate his client’s options in the course of the subject legal proceedings and then to advise the client as to the merits of each. Tafero, 796 F.2d at 1320; Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th 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, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)). 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.”). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 11 of 23 PageID# <pageID>
III. Analysis a. Defective Warrant Jackson first argues that his trial counsel rendered ineffective assistance by failing to file a motion to suppress the evidence seized from his residence on the grounds that the warrant authorizing the search “was not returned and signed by the judge as stated in the court statues [sic] for search warrant procedure[,]” and that “the search warrant should have been void and the evidence should have been thrown out.” (Doc# 73, PageID.220-221). Jackson further claims that his counsel “pressed [him] to sign a guilty plea before providing [Jackson] with the motion of discover [sic] that contained the search warrant[,]” and that counsel “didn’t file a motion to suppress the evidence like [Jackson] asked.” (Id., PageID.221, 223). Jackson did not include a copy of the search warrant with his § 2255 motion, and it is not otherwise in the record. However, the factual resume included with Jackson’s plea agreement, which he agreed was “true and correct,” states that the “Mobile police applied for” and “executed” the search warrant, indicating it was issued by an Alabama state court. (See Doc# 45, PageID.90). Alabama statute states that “[a] search warrant must be executed and returned to the judge or the magistrate by whom it was issued within 10 days after its date; if not executed after such time, it is void.” Ala. Code § 15-5-12. Similarly, Alabama Rule of Criminal Procedure 3.10, which “is taken from and modifies” § 15-5-12, among other Alabama statutes, provides, in relevant part, as follows: a search warrant “shall command [the serving law enforcement] officer to search, within a specified time not to exceed ten (10) days, Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 12 of 23 PageID# <pageID>
the person or place named for the property specified and to bring an inventory of said property before the court issuing the warrant. The warrant shall designate the judge or magistrate to whom an inventory of the property specified shall be returned. The judge or magistrate shall endorse the warrant, showing the hour, date, and the name of the law enforcement officer to whom the warrant was delivered for execution, and a copy of such warrant and the endorsement thereon shall be admissible in evidence in the courts.” Ala. R. Crim. P. 3.10 & committee comments. However, the United States Supreme Court has held that violations of “state law alone…do[] not require the exclusion of evidence obtained from a constitutionally permissible arrest[,]” as “it is not the province of the Fourth Amendment to enforce state law.” Virginia v. Moore, 553 U.S. 164, 178, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008). Here, Jackson challenges the subject search warrant solely on a violation of state law, and has not argued that the search of his residence was constitutionally impermissible. Moreover, Jackson has failed to show that suppression would be warranted even under state law, as Alabama appellate courts have long held that “[t]he fact that the warrant was not subsequently returned did not destroy its validity or prevent a justification of the search made thereunder.” Love v. Riddick, 146 So. 617, 618 (Ala. 1933). Accord Donovan v. State, 359 So. 2d 1181, 1183–84 (Ala. Crim. App. 1978) (“[W]e hold that the failure to execute and return a warrant within ten days does not invalidate the search and seizure or render inadmissible into evidence the fruits seized under that warrant which was executed within the ten-day period after its issuance as required by Title 15, Section 111, Code 1940 (now Section 15-5- Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 13 of 23 PageID# <pageID>
12, Code 1975).”); McCord v. State, 373 So. 2d 1242, 1244 (Ala. Crim. App. 1979) (“In this case the return portion of the warrant is completed and signed by the appellant and Officer Pickett, but it is not signed and dated by the magistrate. There was no evidence presented that the warrant was never returned, only that the magistrate's signature and date was missing…The instant warrant was executed within the ten day requirement and was not invalidated by lack of the magistrate’s signature and a date on the return.” (citing Donovan)); State v. C.B.D., 71 So. 3d 717, 718 (Ala. Crim. App. 2009) (“Although § 15–5–12, Ala. Code 1975, clearly provides that a warrant is void if not executed in 10 days, it does not provide for the invalidation of the warrant upon its failure to be returned.” (citing Love and Donovan)). The Alabama Court of Criminal Appeals has also “consistently stated that ministerial defects do not nullify other search-warrant procedures and ha[s] upheld such search warrants, absent a showing of prejudice.” C.B.D., 71 So. 3d at 719 (citing cases, including those holding that violations of Alabama Rule 3.10 did not void the warrants). For instance, prejudice could result “when the original warrant is neither returned nor available for inspection by a defendant's counsel, [as] the defendant's ability to raise challenges to the issuance of the warrant and the manner in which it was executed may be compromised.” Id. Here, Jackson admits that both he and his counsel were provided a copy of the search warrant as part of discovery (see Doc# 73, PageID.221), and he has not otherwise alleged anything to indicate that the purported failure of the warrant to be properly returned and signed prejudiced him. Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 14 of 23 PageID# <pageID>
Because Jackson has failed to show that a motion to suppress based on the alleged state-law defect in the search warrant had any reasonable chance of success, his counsel was not ineffective for failing to file such a motion. See United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (counsel “is not ineffective for failing to raise claims reasonably considered to be without merit” (quotation omitted)); Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (per curiam) (“Failing to make a meritless objection does not constitute deficient performance.”). b. Conspiracy Count Jackson next argues that he was wrongfully “convicted for a conspiracy in which the defendant had no co-defendant.” (Doc# 73, PageID.2224). This statement is wrong. Only Count 7 of the indictment charged a conspiracy offense, under 21 U.S.C. § 846, but Jackson did not plead guilty to that count, and it was dismissed on motion of the Government at sentencing in accordance with the terms of Jackson’s plea agreement. See supra. Regardless, a defendant need not be indicted along with his alleged co-conspirators in order to be found guilty of conspiracy. See Rogers v. United States, 340 U.S. 367, 375, 71 S. Ct. 438, 95 L. Ed. 344 (1951) (“Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.”); United States v. Davis, 679 F.2d 845, 851 (11th Cir. 1982) (“The existence of the conspiracy agreement rather than the identity of those who agree is the essential element to prove conspiracy.”); United States v. Camara, 908 F.3d 41, 46 (4th Cir. 2018) (“ ‘The existence of the Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 15 of 23 PageID# <pageID>
conspiracy, rather than the particular identity of the conspirators, is the essential element of the crime.’ United States v. Am. Waste Fibers Co., 809 F.2d 1044, 1046 (4th Cir. 1987) (per curiam) (citing United States v. Davis, 679 F.2d 845, 851 (11th Cir. 1982) ). Indeed, the government need not identify any co-conspirators. ‘While two persons are necessary to constitute a conspiracy, “one person can be convicted of conspiring with persons whose names are unknown.” ’ Id. (quoting Rogers v. United States, 340 U.S. 367, 375, 71 S. Ct. 438, 95 L. Ed. 344 (1951)).”); United States v. Allen, 613 F.2d 1248, 1253 (3d Cir. 1980) (noting that the Rogers rule “has been applied to conspiracies involving drug activity” (citing United States v. Rivera Diaz, 538 F.2d 461, 465 (1st Cir. 1976))). Accordingly, Jackson is due no relief for being charged for conspiracy jointly with any co-defendants. c. Other Claims Jackson also conclusorily alleges that he “was told by counsel that this case had many discrepancies but the counsel never notified [him] of such issues.” (Doc#73, PageID.225). To the extent Jackson is referencing other “discrepancies” not already addressed above, he has failed to allege any facts indicating what those might be, and “unsupported generalizations” are insufficient to warrant an evidentiary hearing, much less relief, under § 2255. Winthrop-Redin, 767 F.3d at 1216. Finally, Jackson alleges that his “counsel didn’t show up for [him] at the video hearing when [Jackson] plead [sic] guilty.” (Doc# 73, PageID.225). Instead, “[a]nother lawyer came who [Jackson] was not familiar with.” (Id.). The record reveals that S. Joshua Briskman was initially appointed to represent Jackson. However, on June 17, Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 16 of 23 PageID# <pageID>
2020, five days before Jackson’s guilty plea, attorney Michael Hickman entered an appearance as “co-counsel” for Jackson. (Doc# 46, PageID.93). Two days later, Briskman filed a motion to allow Hickman “to appear in his stead for the Plea for Defendant Jackson[,]” representing that “Mr. Hickman has been briefed on the circumstances of the case and has been introduced to Defendant Jackson via video conference who has consented to Attorney Hickman standing in for the undersigned at the Plea Hearing.” (Doc# 48, PageID.97). The District Judge granted that motion (see Doc# 49), and Hickman represented Jackson at the June 22, 2020 change-of-plea hearing. (See Doc# 50). Jackson has not alleged any specific facts indicating that Hickman performed deficiently when he stood in for Briskman at Jackson’s change-of-plea hearing, or that but for any such errors he would have refused to plead guilty and insisted on going to trial. The plea agreement (Doc#45) indicates that it was signed by Jackson almost a week before the change-of-plea hearing, on June 13, 2020, and was co-signed by Briskman 3 days later. Apart from the meritless issues addressed above, Jackson has not specifically identified anything Briskman failed to discuss with him regarding the plea agreement that Hickman was allegedly unprepared to address at the change-of- plea hearing. Once again, Jackson’s reliance on “unsupported generalizations” does not entitle him to an evidentiary hearing or relief under § 2255. As all of Jackson’s claims are without merit, his § 2255 motion is due to be DENIED and DISMISSED with prejudice. Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 17 of 23 PageID# <pageID>
d. Certificate of Appealability “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant” in a § 2255 proceeding. Rule 11(a) of the Rules Governing Section 2255 Proceedings. “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). Where the district court “has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). See also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (“Under the controlling standard, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” (citations omitted and punctuation modified)). In all cases, “[a] certificate of appealability may issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right.’ ” Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)). “A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part.” Miller-El, 537 U.S. at 338 (quotations omitted). However, “a COA Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 18 of 23 PageID# <pageID>
does not require a showing that the appeal will succeed.” Id. at 337. Upon due consideration, the undersigned finds that Jackson should be DENIED a certificate of appealability in conjunction with the dismissal of the present § 2255 motion because he has failed to make a substantial showing of the denial of a constitutional right for any of the grounds raised, and jurists of reason would not find it debatable whether the Court is correct in finding those grounds meritless.3 e. Appeal In Forma Pauperis “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).4 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 3 Rule 11(a) of the Rules Governing Section 2255 Proceedings further provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” If there is an objection to this recommendation regarding the issuance of a certificate of appealability, the objecting party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation, see infra. Should the Court ultimately deny a certificate of appealability as to some or all grounds for relief, the movant “may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts. 4 A district court’s finding “that an appeal would not be in good faith because no certificate of appealability had been issued . . . is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding.” Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 19 of 23 PageID# <pageID>
(11th Cir. 1993) (citations omitted). In other words, an IFP action is frivolous, and thus not brought in good faith, if it is “without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). More specifically, “arguable means capable of being convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (internal quotations and citations omitted). Nevertheless, where a “claim is arguable, but ultimately will be unsuccessful,” it should be allowed to proceed. Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th Cir. 1991). Ghee v. Retailers Nat. Bank, 271 F. App’x 858, 859-60 (11th Cir. 2008) (per curiam) (unpublished). Having considered the issues raised as set forth above, the undersigned will recommend the Court certify that any appeal by Jackson of the denial of the present § 2255 motion would be without merit and therefore not taken in good faith, thus denying him entitlement to appeal in forma pauperis.5 IV. Conclusion & Recommendations In accordance with the foregoing analysis, the undersigned RECOMMENDS that Jackson’s § 2255 motion dated January 3, 2022 (Doc# 73), be DENIED and DISMISSED with prejudice under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts; that Jackson be DENIED a Certificate of Appealability in relation to the dismissal of the subject § 2255 motion; and that judgment be accordingly set out by separate document under Federal Rule 5 Should the Court adopt this recommendation and deny leave to appeal in forma pauperis, the petitioner may file a motion to proceed on appeal in forma pauperis with the Eleventh Circuit Court of Appeals in accordance with Federal Rule of Appellate Procedure 24(a)(5). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 20 of 23 PageID# <pageID>
of Civil Procedure 58.6 The undersigned further RECOMMENDS that the Court certify that any appeal by Jackson of the denial of the present § 2255 motion would be without merit and therefore not taken in good faith, thus denying him entitlement to appeal in forma pauperis. NOTICE OF RIGHT TO FILE OBJECTIONS A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within 14 days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts; S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error 6 See Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts (“The Federal Rules of Civil Procedure…, to the extent that they are not inconsistent with any statutory provision or these rules, may be applied to a proceeding under these rules.”); Sassoon v. United States, 549 F.2d 983 (5th Cir. 1977) (applying Rule 58’s separate-document requirement in a § 2255 proceeding); United States v. Hassebrock, 21 F.4th 494, 497 (7th Cir. 2021) (in holding that Rule 58 applied to coram nobis proceedings, noting that “[m]any [other] circuits have applied Rule 58 to § 2255 motions”). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 21 of 23 PageID# <pageID>
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. NOTICE TO PRO SE § 2255 MOVANT Movant is advised that “[a]ll persons proceeding pro se shall be bound by, and must comply with, all Local Rules of this Court,” as well as the applicable federal rules of procedure, “unless excused by Court order.” S.D. Ala. GenLR 83.5(a). Federal Rule of Civil Procedure 11 requires that any paper filed with the Court be signed by him personally and provide his “address, e-mail address, and telephone number.”7 Fed. R. Civ. P. 11(a). See also Rule 12 of the § 2255 Rules (“The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). “The court must strike an unsigned paper unless the 7 Movant must handwrite his signature/mark (as opposed to, for example, typing his name) in order to satisfy Rule 11(a). See Becker v. Montgomery, 532 U.S. 757, 763– 64, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001) (“Becker maintains that typing one's name satisfies the signature requirement and that his original notice of appeal, containing his name typed above “(Counsel of Record),” met Civil Rule 11(a)’s instruction…[H]owever, we are not disposed to extend the meaning of the word ‘signed,’ as that word appears in Civil Rule 11(a), to permit typed names. As Rule 11(a) is now framed, we read the requirement of a signature to indicate, as a signature requirement commonly does, and as it did in John Hancock's day, a name handwritten (or a mark handplaced).”). Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 22 of 23 PageID# <pageID>
omission is promptly corrected after being called to the attorney's or party's attention.” Fed. R. Civ. P. 11(a). Movant is also advised that, under this Court’s local rules, “[a]ny person proceeding pro se must, at all times during the pendency of the action to which he or she is a party, keep the Clerk informed of his or her current address and … must promptly notify the Clerk of any change of address … Failure to comply with this Rule may result in sanction, including dismissal of a pro se plaintiff’s action…” S.D. Ala. GenLR 83.5(b). Additionally, any “request for Court action must be presented by motion and may not be presented by informal means such as a letter.” S.D. Ala. GenLR 7. See also Fed. R. Civ. P. 7(b). DONE this the 4th day of December 2024. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE Case 1:20-cr-00022-WS-N Doc# 78 Filed 12/04/24 Page 23 of 23 PageID# <pageID>
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