United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
after a guilty plea for possession of a firearm as a felon,
doc. 20 (plea agreement), Dexter Johnson was
sentenced to a total of 80 months' imprisonment.
See doc. 28. He did not appeal the judgment. He now
moves under 28 U.S.C. § 2255 to vacate his sentence
based on (1) counsel's failures to object to the
Presentence Investigative Report (PSR), which included a
conviction and Sentencing Guidelines enhancements he
disputes; provide him with copies of discovery; or adequately
consult with him; and (2) the Court's error in counting
that conviction in his criminal history points and applying
that Sentencing Guidelines enhancement. Doc. 35. The
Government moves to dismiss his motion. Doc. 39. Johnson has
defendant who enters an unconditional plea of guilty
"may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea."
Tollett v. Henderson, 411 U.S. 258, 267 (1973)
(emphasis added). That is, "[a] defendant's plea of
guilty, made knowingly, voluntarily, and with the benefit of
competent counsel, waives all non-jurisdictional defects in
that defendant's court proceedings." United
States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997);
see also United States v. Patti, 337 F.3d 1317, 1320
(11th Cir. 2003). The bar applies both on appeal and on
collateral attack. See United States v. Broce, 488
U.S. 563, 569 (1989). "A defendant who wishes to
preserve appellate review of a non-jurisdictional defect
while at the same time pleading guilty can do so only by
entering a 'conditional guilty plea' in accordance
with Federal Rule of Criminal Procedure 11(a)(2)."
Pierre, 120 F.3d at 1155.
who have entered an unconditional guilty plea, therefore, may
challenge their pre-plea constitutional claims only by
showing that the advice they received from counsel undermined
"the voluntary and intelligent character of the
plea." Tollett, 411 U.S. at 267. This includes
defects in the procedure by which the plea was received or
circumstances which make the plea other than voluntary,
knowing and intelligent. It also includes cases where the
guilty plea was induced through threats, misrepresentations,
or improper promises, such that the defendant cannot be said
to have been fully apprised of the consequences of the guilty
plea. . . .
Mikell, 2011 WL 830095 at *2 (cites and quotes
omitted). Otherwise, all substantive claims that could have
been raised before the plea, such as suppression-based
claims, are waived. Franklin v. United States, 589
F.2d 192, 194-95 (5th Cir. 1979) ("By entering a
knowing, voluntary, intelligent guilty plea on the advice of
competent counsel, [petitioner] has waived all
nonjurisdictional complaints . . . [such as] claims regarding
Miranda warnings, coerced confessions, perjury and
illegal searches and seizures. . . ."); Washington
v. United States, 2010 WL 3338867 at * 15 (S.D. Ala.
Aug. 5, 2010) (collecting Eleventh Circuit cases denying
habeas relief on suppression-based IAC claims and concluding
that, "[b]ecause all of Washington's asserted claims
of ineffective assistance of counsel relate to the
suppression issue, the denial of which has been waived . . .
they have been waived by petitioner's entry of a knowing
and voluntary plea. . . .").
who pled guilty unconditionally, cites no legally cognizable
involuntariness grounds (e.g., that he was
threatened or misled by his lawyer, the judge, etc.) that
would undermine his guilty plea. See Tollett, 411
U.S. at 267; Hill v. Lockhart, 474 U.S. 52, 59
(1985). He argues instead that counsel failed to more
comprehensively consult with him about the plea agreement and
appeals process, to give him copies of discovery, and to
object to "discrepancies" in the PSR, including a
2000 conviction that should not have been used to calculate
his criminal history points and Sentencing Guidelines
enhancements that should not have been applied. See
doc. 35 at 4-11.
Johnson swore under oath that he had received the full
benefit of counsel and had met with counsel to discuss the
facts of his case, the law, the indictment, the terms of the
plea agreement, and the application of the sentencing
Guidelines. Doc. 37 at 7-8 (sentencing hearing transcript);
see Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)
("Solemn declarations in open court carry a strong
presumption of verity."); United States v.
Spitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986)
("[I]f the Rule 11 plea-taking procedure is careful and
detailed, the defendant will not later be heard to contend
that he swore falsely."). And he signed this Court's
Notice of Post-Conviction Consultation, which affirms that he
expressly told counsel, after being fully informed of his
appellate rights, that he did not wish to file an
appeal. Doc. 26.
ignores this inconvenient fact in declaring, under penalty of
perjury, that counsel was deficient for failing to fully
apprise him of his appellate rights and the consequences of
failing to file an appeal. Doc. 35 at 15 ("I declare (or
certify, verify, or state) under penalty of perjury that the
foregoing is true and correct...."). His bare
assertion to the contrary now cannot overcome what he swore
to be true at his plea colloquy and shortly after sentencing.
See, e.g., Eason v. United States, 2014 WL 4384652
at * 3 (S.D. Ga. Sept. 3, 2014). And with nothing to excuse
his failure to appeal, Johnson's claims that his sentence
was miscalculated or improperly enhanced under the advisory
Sentencing Guidelines are procedurally defaulted. See
United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.
movant's conclusory arguments that somehow counsel was
constitutionally deficient for failing to provide him with
copies of discovery or more meaningfully consult with him
prior to his entry of a guilty plea and decision not to
appeal his conviction fail for lack of any articulable
prejudice. See, e.g., United States v. Frady, 456
U.S. 152, 170 (1982) (an attorney's error must not only
create the possibility of prejudice, they must work to a
defendant's "actual and substantial disadvantage,
infecting his entire trial [or sentencing] with error of
the Government's motion (doc. 36) should be
GRANTED, and Johnson's § 2255
motion should be DENIED. 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 either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2254 ("The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant") (emphasis added).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).