United States District Court, N.D. Georgia, Atlanta Division
TYWAN L. WILLIAMS, Movant,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Gerrilyn G.
Brill's Final Report and Recommendation 
(“R&R”),  recommending that Movant Tywan L.
Williams' (“Williams”) Motion to Vacate, Set
Aside or Correct Sentence Under 28 U.S.C. § 2255 ,
as amended ,  (together, “§ 2255
Motion”), be denied, that civil action number
1:14-cv-1283-WSD be dismissed, and that a certificate of
appealability be denied. Also before the Court are
Williams' Objections  to the R&R, his Motions
for Extension of Time to File Objections , ,
motion to file a “second/successive motion”
, and his “Motion to Supplement 2255(a)”
,  (“Motion to Supplement”).
2007, a grand jury, in the Northern District of Georgia,
returned an Indictment  charging Williams with three
counts of “ramm[ing] his Cadillac Escalade vehicle, a
deadly and dangerous weapon, into a [vehicle] driven by a law
enforcement officer, ” in violation of 18 U.S.C.
§§ 111(a)(1)-(b). On March 17, 2008, Williams
pleaded guilty to Count 1 of the Indictment. ([30.1]). At a
May 20, 2008, hearing scheduled for sentencing, Williams
expressed regrets about his guilty plea. The sentencing
hearing was adjourned to give Williams time to decide whether
to withdraw his guilty plea. ().
11, 2008, Williams orally moved to withdraw his guilty plea.
The district court judge told Williams his request was
“against [his] best interest” and a
“tragic, tragic, mistake.” ( at 2). She
predicted the consequences of the withdrawal would “be
profound.” ( at 2). Williams insisted that he
wanted to go to trial, and confirmed he understood the
government would not engage in further plea discussions.
( at 2). The district court judge granted Williams'
request to withdraw his guilty plea. ( at 2-4). In
November 2008, Williams was tried, by a jury, on the charges
in the Indictment.
The evidence presented at trial established that Williams was
a fugitive and tried to elude federal marshals when they
attempted to arrest him. In 2005, after a North Carolina
court issued a warrant for his arrest, Williams agreed to
surrender, but never did so. Officers made several
unsuccessful attempts to arrest Williams, and later
transferred the matter to the United States Marshals Service.
Armed with information that Williams had traveled repeatedly
to Atlanta, Georgia, and with a second arrest warrant issued
by a Georgia court, federal marshals searched for Williams.
In January 2007, Anthony Simpson, a deputy United States
Marshal, and two deputies of the Cobb County Sheriff's
Department observed a Cadillac Escalade vehicle in the
parking lot of an apartment complex in Atlanta. The vehicle,
which was painted a maroon color, matched the description of
Williams's vehicle. The officers attempted to follow the
vehicle, but were separated from the vehicle in traffic.
The next day, Simpson and other federal marshals returned to
the apartment complex to search for Williams's vehicle.
The marshals were clad in bulletproof vests that stated they
were members of the Southeast Regional Fugitive Task Force,
and the marshals were driving unmarked vehicles that were
equipped with blue lights in the front and rear windshields,
front and rear strobe lights, and sirens. After receiving a
report that Williams was at a local British Petroleum gas
station, the marshals drove to the station.
Deputy Marshal Wayne Warren and other federal marshals parked
their vehicles in a line in the parking lot of the gas
station. Williams saw the marshals and ran to his Escalade
vehicle. Warren activated the emergency lights in his Dodge
Durango vehicle and parked parallel to Williams to block his
escape. Williams drove his Escalade vehicle in reverse and,
as Warren tried to prevent an escape, Williams rammed the
rear of Warren's Durango vehicle repeatedly. Warren
stopped his vehicle momentarily and watched Williams strike
the front end of Deputy Marshal Nana Joyner's Ford F-150
truck and Deputy Marshal Brad Bennett's unmarked Ford
Expedition vehicle as it entered the parking lot with its
lights and sirens activated. Warren repositioned his Durango
vehicle to block the exit, but Williams struck the vehicle a
second time and drove out of the parking lot into oncoming
Several federal marshals, including Warren and Simpson,
pursued Williams with their sirens and emergency lights
activated. The marshals followed Williams's speeding
vehicle on a ramp that led to Interstate 285. To compensate
for his speed, Williams made a wide turn onto the ramp that
allowed Warren to maneuver beside Williams. Williams rammed
Warren's Durango vehicle, and Warren struggled to keep
his vehicle on the ramp and away from the edge of an
embankment that was 75 feet off the ground. After Warren
regained control of his vehicle, Williams forced Warren's
speeding vehicle to scrape against the barrier wall long
enough to produce sparks.
Warren fired two rounds of ammunition from his gun at
Williams, and a bullet struck Williams in the eye. Williams
lost control of his vehicle, but Warren pinned the vehicle
against a retaining wall. Federal marshals broke the windows
of Williams's vehicle, deflated its airbags, and removed
Williams from the vehicle.
Williams testified that he did not realize his pursuers were
federal marshals until they broke the windows of his vehicle.
Williams said he thought the marshals were carjackers because
he had noticed a sport utility vehicle with tinted windows
following him and the other vehicles had been unmarked and
lacked emergency lights. Williams stated that a vehicle hit
his Escalade vehicle while he was backing out of his parking
space at the gas station, which caused the side airbags in
his vehicle to deploy and limited his vision. Williams
testified that several vehicles struck his Escalade vehicle,
but he alleged that he did not see emergency lights on the
vehicles or hear any emergency sirens. When Williams tried to
drive out of the parking lot, he swerved to avoid colliding
with a black sport utility vehicle, which forced him into
oncoming traffic. Williams asserted that he had been shot
before he reached the ramp and had lost control of his
vehicle, and he denied trying to force Warren off the ramp.
Williams admitted there was an outstanding warrant for his
arrest, but he testified that he did not believe officers
were looking actively for him. Williams testified that a year
earlier a police officer agreed not to “pressure”
Williams and to allow him to “get [his] things together
before [he] surrender[ed][.]” When asked why he was in
possession of another man's driver's license and
driving someone else's vehicle, Williams responded that
the man was a “family member” for whom he had
“probably” been “keeping [the license]
safe” and his girlfriend had allowed him to drive her
United States v. Williams, 627 F.3d 839, 841-42
(11th Cir. 2010).
November 18, 2008, at the conclusion of the government's
case-in-chief, the trial court granted Williams' motion
for a judgment of acquittal on Count 2 of the Indictment,
finding that there was insufficient evidence to sustain a
conviction. ( at 133). The next day, the jury found
Williams guilty on Counts 1 and 3 of the Indictment. ().
On December 2, 2008, the court sentenced Williams to 120
months in prison. ( at 21). The Court, over the
government's objections, gave Williams a two-point
reduction for acceptance of responsibility, and declined to
give him a two-point enhancement for obstruction of justice
for giving false testimony at trial. ( at 8-11).
government appealed Williams' sentence, arguing that the
district court should have enhanced Williams' sentence
for obstruction of justice on the grounds that he falsely
testified, at trial, that (1) “he thought he was
evading carjackers, ” (2) he did not intend to assault
the officers, and (3) “he was innocent of wrongdoing
and the marshals were to blame for the incident.”
Williams, 627 F.3d at 840, 845. The government also
argued that the district court should not have reduced
Williams' sentence for acceptance of responsibility,
because Williams “withdrew his plea of guilty, declared
at trial that he was factually innocent, and was found guilty
by a jury.” Id. at 840.
December 8, 2010, the Court of Appeals for the Eleventh
Circuit accepted the government's arguments, and remanded
the case to the district court for resentencing. Id.
at 845. On April 16, 2012, the district court
resentenced Williams to 210 months in prison. (). On
April 27, 2012, Williams filed his Notice of Appeal ,
challenging his sentence on the grounds that it “is
procedurally and substantively unreasonable because the
district court (1) engaged in a cursory discussion of the
factors listed in 18 U.S.C. § 3553(a), and (2) failed to
consider or address his post-offense rehabilitation.”
United States v. Williams, 511 F. App'x 836, 837
(11th Cir. 2013). On February 28, 2013, the Court of Appeals
affirmed Williams' sentence. Id.
April 15, 2014, Williams filed his § 2255 Motion, which
he amended on June 16, 2014. Williams claims his trial and
appellate counsel rendered ineffective assistance by (1)
advising Williams to withdraw his guilty plea, knowing that
Williams “would face a[n] obstruction of justice and
perjury enhancement 3C1.1 should [he] take the stand and tell
the truth”; (2) failing to object to the mislabeling of
Government Exhibits 10N, 10Q, 10L, 10J, 10O, 10P and 10I; (3)
failing to seek “removal of incorrect and irrelevant
Government Exhibits 10I, 10J, 10K, 10L, 10M, 10N from
evidence prior to deliberation”; (4) “refusing to
appeal the preserved issue of repeated prejudicial Government
testimony”; (5) failing to move for federal funding to
pay for an accident reconstruction expert witness; (6)
“not appealing effect of cumulative error and for not
objecting and moving for mistrial due to the accumulation of
errors”; (7) “misleading and misadvising the jury
during closing argument that there isn't any photos of
[the] burgundy Escalade to prove Government witness testimony
is false”; and (8) “failing and refusing to
appeal the cumulative errors committed by the district court
by participation in plea discussion that deprived defendant
[of] a fair trial.” (; ).
September 28, 2015, the Magistrate Judge issued her R&R,
recommending that Williams' § 2255 Motion be denied,
that civil action number 1:14-cv-1283-WSD be dismissed, and
that a certificate of appealability be denied. On November 7,
2015, Williams filed his Objections to the R&R, generally
repeating the arguments he asserted in his § 2255
Standard of Review
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which
objections have not been asserted, the Court must conduct a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert.
denied, 464 U.S. 1050 (1984). In view of Williams'
Objections, the Court conducts a de novo review of
Legal Standard for Strickland Claims
prevail on an ineffective assistance of counsel claim, a
petitioner must show that counsel's conduct was
“outside the wide range of professionally competent
assistance” and that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 690, 694 (1984). Courts must “indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. at 689. “[F]or a petitioner to show that
the conduct was unreasonable, a petitioner ...