USA v. SPEED

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Case No. 4:21cr38-RH-MAL
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
UNITED STATES OF AMERICA
v. 	CASES NO. 4:21cr38-RH-MAL
4:23cv222-RH-MAL
DEMETRIUS SPEED,
Defendant.
________________________________/
ORDER DENYING THE § 2255 MOTION AND
DENYING A CERTIFICATE OF APPEALABILITY
The defendant Demetrius Speed has moved under 28 U.S.C. § 2255 for
relief from his judgment of conviction. The motion is before the court on the
magistrate judge’s report and recommendation, ECF No. 78, and the objections,
ECF No. 81. I have reviewed de novo the issues raised by the objections, including
by reading the transcript of the evidentiary hearing. I make the same factual
findings as the magistrate judge made and recommended.
Mr. Speed’s assertion that he was promised a sentence below the minimum
mandatory is flatly inconsistent with his sworn statements at the plea proceeding.
This would be sufficient to refute his assertion, but it bears noting, too, that the
assertion is inconsistent with the consistent practice in this district. This claim is
plainly unfounded.
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The greater weight of the evidence shows that Mr. Speed did not tell his
attorney to appeal. The record does not show that Mr. Speed’s attorney explicitly
discussed the advantages and disadvantages of appealing, as he should have, but
under the circumstances, this was not ineffective assistance. The governing
standard is this:
[C]ounsel has a constitutionally imposed duty to consult with the
defendant about an appeal when there is reason to think either (1)
that a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he
was interested in appealing. In making this determination, courts
must take into account all the information counsel knew or should
have known. See [Strickland v. Washington, 466 U.S. 668, 690
(1984)] (focusing on the totality of the circumstances). Although
not determinative, a highly relevant factor in this inquiry will be
whether the conviction follows a trial or a guilty plea, both because
a guilty plea reduces the scope of potentially appealable issues and
because such a plea may indicate that the defendant seeks an end to
judicial proceedings. Even in cases when the defendant pleads
guilty, the court must consider such factors as whether the
defendant received the sentence bargained for as part of the plea
and whether the plea expressly reserved or waived some or all
appeal rights. Only by considering all relevant factors in a given
case can a court properly determine whether a rational defendant
would have desired an appeal or that the particular defendant
sufficiently demonstrated to counsel an interest in an appeal.
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Here, there were plainly no
nonfrivolous grounds for appeal, and I find Mr. Speed had not demonstrated an
interest in appealing.
This order thus accepts the report and recommendation, adopts it as the
court’s opinion, and denies the § 2255 motion.
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A further note is in order. At the conclusion of the sentencing hearing, I said
that if Mr. Speed decided to appeal, the defense attorney should file the notice of
appeal and go forward if he was going to handle the appeal, or, if he was not going
to handle the appeal, at least make sure a notice was timely filed and Mr. Speed
obtained representation. I said that if Mr. Speed decided not to appeal, the attorney
should write him a letter to confirm the importance of the decision and to make
sure there was no misunderstanding. At the evidentiary hearing, the attorney
acknowledged that he did not do this, and he said my comment was just a
suggestion. Next time it will be an order. This should not have happened.
A defendant may appeal the denial of a § 2255 motion only if the district
court or court of appeals issues a certificate of appealability. Under 28 U.S.C.
§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84
(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v.
Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a
§ 2254 petition on the merits). As the Court said in Slack:
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, 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
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were “adequate to deserve encouragement to proceed
further.”
529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to
obtain a certificate of appealability when dismissal is based on procedural grounds,
a petitioner must show, “at least, 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.” Id. at 484.
Mr. Speed has not made the required showing. This order thus denies a
certificate of appealability.
IT IS ORDERED:
1. The clerk must enter a judgment stating, “The defendant’s motion for
relief under 28 U.S.C. § 2255 is denied.”
2. A certificate of appealability is denied.
SO ORDERED on June 7, 2026.
s/Robert L. Hinkle
United States District Judge
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