United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Court sentenced Damien Lamont Glover to 151 months'
imprisonment after he pled guilty to conspiracy to possess
with intent to distribute controlled substances. Docs. 84
(plea agreement) & 85 (judgment). His plea agreement provided
that he faced a sentence of up 20 years (the statutory
maximum), and he swore that “no one ha[d] promised
[him] that the Court will impose any particular sentence or
sentence within any particular range.” Doc. 84 at 5-6.
He further affirmed his understanding that the Court would
consider “all of [his] relevant conduct” under
the advisory Sentencing Guidelines, “not just the facts
underlying the particular Count to which [he] is pleading
guilty.” Id. at 6. Finally, Glover swore that
he “had the benefit of legal counsel” who he
“believe[d] . . . has represented him faithfully,
skillfully, and diligently” and that “he is
completely satisfied with the legal advice given and the work
performed by his attorney.” Id. at 8. After
sentencing, movant elected not to appeal his
conviction. Doc. 84 (Notice of Post-Conviction
now contradicts these sworn affirmations, seeking to vacate
his sentence pursuant to 28 U.S.C. § 2255. Doc. 96. He
alleges counsel was ineffective for “misleading”
him into pleading guilty, having promised him a sentence
capped at “five years, ” and for failing to
appeal his conviction despite being told to do
Doc. 96 at 13-17. Preliminary § 2255 Rule 4 review shows
that his motion must be DENIED.
arguments are blatantly contradicted by the record. He
contends he was promised a “lenient” sentence of
five years, despite swearing under oath that he had not been
promised any specific sentence and that he knew he could face
up to 20 years' imprisonment. Compare doc. 96 at
13 with doc. 84 at 5-6. And while a failure to
consult with a defendant regarding an appeal (or otherwise
abide his wish to appeal) can constitute ineffective
assistance of counsel, see Roe v. Flores-Ortega, 528
U.S. 470, 480 (2000), movant expressly told his lawyer, in
writing, not to file an appeal after he was fully informed of
his appellate rights. Doc. 84 (“Notice of
Post-Conviction Consultation”) at 3-4. His bare
assertions to the contrary now cannot overcome what he swore
to be true 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,
Glover's other claims are procedurally defaulted. See
United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.
Damien Lamont Glover's § 2255 motion should be
DENIED. For the reasons set forth above, it is
plain that he raises no substantial claim of deprivation of a
constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2255 (“The district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.”).
Any motion for leave to appeal in forma pauperis
therefore is moot.
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 F. App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F. App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED, this 2nd day of
 The Court is citing to the criminal
docket in CR416-258 unless otherwise noted, and all page
numbers are those imprinted by the Court's docketing
 The Notice is a document this Court
developed to memorialize counsel's consultation with his
client and reflect the client's appeal decision at the
time of sentencing. Green v. United States, 2017 WL
843168 at *1 (S.D. Ga. Mar. 3, 2017); see also Guyton v.
United States, 2013 WL 1808761 at * 2 (S.D. Ga. Apr. 29,
2013) (the “Notice of Counsel's Post-Conviction
Obligations” requires that both counsel and client
execute and file the form, thus preserving a record of
defendant's instructions regarding an appeal).
 Glover lists several grounds that
should have been raised on appeal. He disputes the
Government's improper characterization of his
“consolidated Georgia state charges for possession with
inten[t] to deliver control[led] substance and possession
with intent to distribute control[led] substance” as
multiple convictions, when they were actually
“consolidated and tried together in a single
indictment” with “a single sentence”
imposed. Doc. 96 at 14. He also objects to the
Government's “sham” plea agreement, which
“reneged” on (1) its “implicit promise to
consider specified mitigating factors” to
“award” a “three level [reduction] for
acceptance of responsibility, and reduction of sentence for
full cooperation, ” and (2) its promise to “not
enhance [his sentence] based on his prior state
conviction.” Id. at 14-16.
 Glover ignores these inconvenient
facts in declaring, under penalty of perjury, the contrary.
Doc. 98 (“I declare (or certify, verify, or state)
under penalty of perjury that the foregoing is true and
correct. . . .”). He is reminded that lying under oath,
either live or “on paper, ” is a criminally
prosecutable offense. See, e.g., United States v.
Dickerson, CR608-36, doc. 1 (S.D. Ga. Dec. 11, 2008)
(§ 2255 movant indicted for perjury for knowingly lying
in his motion seeking collateral relief from his conviction);
id., doc. 47 (guilty verdict), cited in Irick v.
United States, 2009 WL 2992562 at * 2 (S.D. Ga. Sept.
17, 2009); see also Colony Ins. Co. v. 9400 Abercorn,
LLC, 866 F.Supp.2d 1376, 1378 n. 2 (S.D. Ga.
 Glover waves at pre-plea errors,
noting that “there was no eviden[ce] to support a
single assertion made in the indictment that did not meet the
specificity required in indicting a criminal defendant in
this case.” Id. at 16. But even if not
procedurally defaulted, Glover expressly swore that the
reason he was pleading guilty was because “he is, in
fact, guilty of this offense” and affirmed “the
accuracy of the [Government's] ...