United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Moving to vacate his conviction under 28 U.S.C. § 2255, Willie Jones at first claimed that his lawyer ignored his instruction to file a direct appeal from his drug conspiracy conviction. CR413-007, doc. 673 at 4 ("counsel did not appeal or file the notice of appeal when instructed by the movant."). Upon preliminary review under Rule 4(b) of the Rules Governing § 2255 Proceedings, the Court directed his lawyer, Tony Siamos, to explain in an affidavit why he failed to file a Notice of Post-Conviction Consultation Certification ("Notice"). It also directed the government to ensure Siamos' compliance. Doc. 679 at 5. Upon Siamos' compliance, the Court intended to turn back to Jones to declare, under penalty of perjury, any disagreement with Siamos' attestations. Id. at 5 (citing Mingo v. United States, 2014 WL 4926278 at * 1 (S.D. Ga. Oct. 1, 2014) ("Within 21 days of the date this Order is served, Mingo must - on the attached form to be returned - affirm or rebut [his lawyer's] sworn assertions, then sign it under 28 U.S.C. § 1746....")). Finally, it reminded Jones that he signed his § 2255 motion under penalty of perjury, doc. 673 at 13, and that § 2255 movants who lie to this Court may be prosecuted. Doc. 679 at 6.
Jones now moves to "withdraw and strike" his claim that he instructed Siamos to file a direct appeal from his drug conspiracy conviction. Doc. 682. The government responds by excusing its obligation to ensure that Siamos comply, unless directed otherwise. Doc. 689. The Court declines to direct otherwise, and GRANTS Jones' "withdraw and strike" motion. Doc. 682.
Jones also "wishes not to further waste... unnecessar[i]ly [the] Court's financial resources in case matter CR413-007." Doc. 682 at 1. But he is unclear whether that means he is abandoning the remaining two counts of his § 2255 motion. No matter, as they are without merit. In the remaining part of Ground One (the part that he did not just withdraw), he "laundry lists" his pre-appeal, ineffective assistance of counsel claim against Siamos: "Counsel failed to object to the P.S.I. Report. The objection was in regard to an invalid prior conviction." Doc. 673 at 4. Which prior conviction? And how, within the meaning of the showing he must make, see n. 2, did that prejudice him? This claim is denied on pleading grounds alone.
Jones' next and final claim - that the Court "subjected [him] twice for the same prior offense[, thus] committing double counting, " doc. 673 at 5, is procedurally defaulted since he took no appeal. A § 2255 motion, it must be remembered, may not be used as a "surrogate" for a missed direct appeal. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004); see Stone v. Powell, 428 U.S. 465, 478 n.10 (1976) (28 U.S.C. § 2255 will not be allowed to do service for an appeal). To overcome procedural default, a defendant must show cause and prejudice. For cause he must show that "some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lynn v. United States, 365 F.3d 1225, 1235 (11th Cir. 2004). A meritorious claim of ineffective assistance of counsel can constitute cause. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000); United States v. Voltare, 2014 WL 7069153 at * 4 (N.D.Fla. Dec. 11, 2014). Jones raises no such claim here.
Accordingly, Jones' § 2255 motion should be DISMISSED WITHOUT PREJUDICE. Doc. 673. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be ...