# Faircloth v. United States

> District Court, M.D. Florida · May 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10105157

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105157

## How later opinions describe it (automated extraction)

- stating courts must look to the facts at the time of counsel’s conduct
- holding that the test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), applies to claims that a lawyer was ineffective for failing to file an appeal

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MICHAEL TERRILL FAIRCLOTH,

Petitioner,

v. Case No: 2:19-cv-269-FtM-29MRM
Case No. 2:06-CR-117-FTM-29MR
UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner Michael
Terrill Faircloth’s (Faircloth or petitioner) Motion Under 28
U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #89; Cr. Doc.
#90)1 filed by counsel on May 13, 2019, and petitioner’s pro se
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #2) filed on May
14, 2019. Petitioner’s attorney filed a Memorandum of Law (Cv.
Doc. #10) on August 5, 2019. On October 3, 2019, petitioner’s
attorney was allowed to withdraw from the case. (Cv. Doc. #15.)
The government filed a Response in Opposition (Cv. Doc. #16) on

1 The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”
October 4, 2019, to which petitioner filed a pro se Reply (Cv.
Doc. #19) on December 9, 2019.
Petitioner is in the unusual position of urging the Court to

vacate his sentence so it may impose a more severe sentence.
Petitioner was originally sentenced as an armed career offender to
120 months imprisonment, followed by five years of supervised
release. Before petitioner completed that sentence, he escaped;
when captured, petitioner was found in possession of a firearm.
This led to two new federal criminal cases, which ultimately
resulted in convictions. After serving about nine years of the
120 month sentence, but before being convicted and sentenced on
the new federal offenses, petitioner filed his first § 2255 motion
claiming he was not an armed career offender under recent Supreme
Court cases. The Court agreed, set a re-sentencing hearing, and
ultimately re-sentenced petitioner to 41 months imprisonment, with

no supervised release to follow. By the time petitioner was re-
sentenced, he had completely served the original 120-month term of
imprisonment (but not the supervised release term).
Petitioner asserts that the federal Bureau of Prisons refuses
to credit his “overserved” time (i.e., the difference between the
120 months he actually served and the 41 months he was re-sentenced
to serve) on either of petitioner’s two new federal sentences.
Petitioner further asserts that the Bureau of Prisons would give
him such credit if the Court had imposed a term of supervised
release at re-sentencing. Petitioner therefore argues that the
Court erred in failing to impose a term of supervised release, and
his attorney provided ineffective assistance of counsel by failing

to request the Court to do so. Petitioner seeks to be re-sentenced
to 41 months imprisonment, plus a three year term of supervised
release, and requests that the Court order the Bureau of Prisons
to give him credit for the over-service of his original sentence.
(Cv. Doc. #10, pp. 10-11.)
I.
A. Procedural History of Current Case
On October 25, 2006, a federal grand jury in Fort Myers,
Florida returned a one-count Indictment (Cr. Doc. #1) charging
Faircloth with being a felon in possession of ammunition (the
Ammunition Case). In due course defendant entered a plea of guilty
pursuant to a Plea Agreement. (Cr. Docs. #39, 41.)

According to the Presentence Report, defendant qualified
under the Armed Career Criminal Act (ACCA), resulting in a
Sentencing Guideline range of 180 to 210 months imprisonment.
(Cr. Doc. #72, p. 33.) At the September 24, 2007 sentencing, the
Court granted a four-level reduction based on the government’s
substantial assistance motion (Cr. Doc. #54), which resulted in a
Sentencing Guidelines range of 120 to 150 months imprisonment.
Petitioner was sentenced to 120 months of imprisonment, followed
by a term of 60 months supervised release. (Cr. Docs. #51, 53.)
Defendant did not file a direct appeal.
About nine years later, on March 18, 2016, defendant filed a

motion pursuant to 28 U.S.C. § 2255 asserting that in light of the
intervening decisions of Johnson v. United States, 135 S. Ct. 2551
(2015) and Welch v. United States, 136 S. Ct. 1257 (2016) he did
not qualify under the ACCA. (Cr. Doc. #61.) On July 15, 2016,
the Court issued an Opinion and Order (Cr. Doc. #62) finding the
ACCA no longer applied to defendant, and setting the case for a
full resentencing.
On September 13, 2016, petitioner through counsel filed a
Motion to Withdraw Plea. (Cr. Doc. #67.) On October 19, 2016, the
Court denied the motion because it would prejudice the government.
(Cr. Doc. #71.)
Under the new Sentencing Guideline calculations, petitioner’s

range was 51 to 63 months imprisonment. (Cr. Doc. #72, pp. 1-2.)
At the December 5, 2016, resentencing, the government continued to
ask for the four-level reduction based upon substantial
assistance. The Court granted petitioner a four level reduction
in the total offense level which, coupled with petitioner’s
Category VI criminal history, resulted in a Sentencing Guidelines
range of 33 to 41 months imprisonment, followed by supervised
release of between one and three years. (Cr. Doc. #84, pp. 20.)
Defense counsel asserted that imposition of supervised release was
discretionary, not mandatory. (Id. at 20-21.) Defense counsel
requested a sentence at the low end of the Sentencing Guidelines
range, without imposition of a term of supervised release because

of petitioner’s two pending federal cases for which supervised
release would be available. (Id. at 21.) The Probation Office
took the position that a term of supervised release was mandatory.
(Id. at 24.)
Relying on 18 U.S.C. § 3583(a), the Court found that
supervised release was not mandatory, and declined to impose a
term of supervised release. (Id. at 25-26.) The Court imposed a
sentence of 41 months imprisonment in order to give petitioner
credit for his substantial assistance. (Id. at 29-30.) The Court
declined to decide whether petitioner could “bank” or receive
credit for any portion of the 120 month prior sentence which was
over-served. (Id. at 30-31.) Judgment (Cr. Doc. #79) was filed

on December 6, 2016.
Defendant had, of course, already served more than 41 months
imprisonment. According to the Bureau of Prisons, a 41-month term
would have been completed on April 21, 2009; petitioner had
1
completed the 120-month prison term on January 14, 2015. (Cv.
Doc. #16, p. 5.)

1
Defendant was not released because, as discussed in more detail
in a moment, he had been indicted on March 14, 2014, for escape
and indicted on July 9, 2014, for being a felon in possession of
a firearm. On March 13, 2015, petitioner filed a motion under 28
Defense counsel filed a Notice of Appeal (Cr. Doc. #81) and
on appeal challenged the Court’s denial of petitioner’s motion to
withdraw his guilty plea. The Eleventh Circuit affirmed the

conviction and sentence on October 18, 2017. (Cr. Doc. #87);
United States v. Faircloth, 712 F. App'x 887 (11th Cir. 2017).
Petitioner’s pro se petition for certiorari was denied on May 14,
2018. Faircloth v. United States, 138 S. Ct. 2012 (2018).
B. Procedural History of Intervening Prosecutions
As part of the original incarceration on the Ammunition Case,
petitioner was released to a halfway house in Miami, Florida. On
or about February 12, 2014, petitioner left the halfway house
without permission and was deemed to have escaped. On March 14,
2014, petitioner was indicted in the Southern District of Florida
for Escape (the Escape Case). (Cv. Doc. #10, ¶ 2; Cv. Doc. #16,
p. 4.)

On May 21, 2014, petitioner was arrested on the Escape Case
at his residence in Cape Coral, Florida, where he was found with
a loaded firearm on his person. (Cv. Doc. #10, ¶ 3; Cv. Doc. #16,
p. 4.) On July 9, 2014, petitioner was indicted in the Middle

U.S.C. § 2241 asserting that he had already served his 120 month
sentence, and seeking his immediate release or transfer to the
Southern District to answer on the escape charge. (Id., p. 2.)
On November 14, 2016, the Section 2241 motion was dismissed without
prejudice as moot because the resentencing hearing had already
been scheduled, or alternatively, for failure to prosecute. See
Faircloth v. United States, 2:15-cv-168-FTM-29MRM, Doc. #12 (M.D.
Fla. Nov. 14, 2016).
District of Florida for Possession of a Firearm and Ammunition by
a Convicted Felon (the Firearm Case) based on the loaded firearm
found at the time of his arrest on the Escape Case. (Cv. Doc.

#16, p. 4.)
On January 28, 2016, petitioner was found guilty by a jury on
the Firearm Case in the Middle District of Florida. See United
States v. Faircloth, 2:14-cr-76-FTM-38MRM, Doc. #161. On June 19,
2017, petitioner was sentenced to 120 months of imprisonment,
consecutive to the sentence to be imposed for the escape. (Cv.
Doc. #10, ¶ 4; 2:14-cr-76-FTM-38MRM, Doc. #227.) This conviction
and sentence were affirmed on direct appeal. United States v.
Faircloth, 770 Fed. Appx. 976, 977 (11th Cir. 2019). The Supreme
Court denied certiorari on March 2, 2020. Faircloth v. United
States, 140 S. Ct. 1273 (2020).
On August 16, 2017, petitioner was sentenced on the escape

charge to 27 months of imprisonment, to run consecutive to the 41-
month term imposed in the Ammunition Case. (Cv. Doc. #16, p. 5.)
II.
Petitioner and his former counsel raise several grounds for
relief in their respective § 2255 motions. The Court summarizes
each ground.
A. Ground One
In his pro se Ground One, petitioner phrases the issue as one
of ineffective assistance of counsel. Petitioner asserts that his

attorney failed to use due diligence to ascertain whether or not
a term of supervised release was necessary to ensure he would
receive time-served credit for the over-served sentence.
Petitioner asserts that his attorney was twice given untrue
information by a sentencing specialist with the Bureau of Prisons,
but faults counsel for not verifying the information. (Cv. Doc.
#2, p. 4.)
In the Ground One in counsel’s § 2255 Motion, counsel phrases
the issue as being trial court error. Specifically, counsel
argues that the trial court erred in not imposing a term of
supervised release upon re-sentencing, which prevented
petitioner’s sentence from being aggregated with his new sentences

because his original sentence had already expired. Imposition of
a supervised release term would have meant petitioner’s sentence
in the instant case had not expired, and the Bureau of Prisons
would be able to aggregate his consecutive sentences and provide
credit for the over-served time. (Cv. Docs. #1, p. 4; #10, pp.
5-7.)
B. Ground Two
In Ground Two of petitioner’s pro se § 2255 motion he asserts
that his attorney provided ineffective assistance of counsel by
failing to seek a writ of certiorari from the Supreme Court, as
petitioner had requested him to do. (Cv. Doc. #2, p. 5.)
In Ground Two of counsel’s § 2255 motion counsel asserts that

former counsel provided ineffective assistance by failing to bring
to the Court’s attention that a term of supervised release which
extended beyond the date of resentencing was required in order for
the new consecutive sentences to be aggregated and petitioner to
receive credit for the over-service of his prior sentence. (Cv.
Doc. #2, pp. 5-6.)
C. Ground Three
In Ground Three of petitioner’s pro se § 2255 motion he
asserts that his attorney provided ineffective assistance of
counsel because petitioner received “zero” credit at the re-
sentencing for his assistance to the government, in violation of
his Plea Agreement. Petitioner also asserts that the Bureau of

Prison is not giving him any credit for the over-service, which
effectively constitutes a breach of the Plea Agreement, which his
attorney failed to preserve, object to, or appeal. (Cv. Doc. #2,
p. 7.)
In Ground Three of counsel’s § 2255 motion counsel asserts
that trial counsel provided ineffective assistance of counsel by
failing to research and properly advise petitioner regarding
whether his consecutive sentences would be aggregated, when he
would be eligible for release from prison, the total length of his
sentences, and the impact resentencing would have on time already
served. (Cv. Doc. #1, p. 7.)
D. Ground Four

In Ground Four petitioner asserts that he instructed his
attorney to file a notice of appeal from the re-sentencing, but
his attorney failed to do so. (Cv. Doc. #10, p. 10.)
E. Ground Added in Reply
In his pro se Reply (Cv. Doc. #19), petitioner raises the
additional claim that the Indictment in the instant case was
defective under recent Supreme Court authority, and therefore the
district court had no jurisdiction over the case.
III.
The Court first addresses some preliminary procedural
matters.
A. Timeliness of Motion/Cognizability

Petitioner has filed two versions of his current § 2255
motion. Petitioner filed a pro se § 2255 motion on May 14, 2019,
which had been signed on May 9, 2019. The other motion was signed
and filed by counsel on May 13, 2019. The government concedes
that the § 2255 motions were timely filed (Cv. Doc. #16, pp. 8-
9), and the Court agrees.
The government also concedes that the issues raised by
petitioner are cognizable under § 2255. (Cv. Doc. #16, pp. 12-
13.) Again, the Court agrees.
B. Lack of Jurisdiction – “In Custody” Requirement
The government asserts that the § 2255 motions should be
dismissed because petitioner was not “in custody” at the time he

filed the § 2255 motions, as required by the statute. (Cv. Doc.
#16, pp. 9-10.) For the reasons set forth below, the Court
disagrees.
“A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released” on certain
types of grounds “may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).
Whether a prisoner is “in custody” is measured at the time he or
she files the § 2255 motion. Carafas v. LaVallee, 391 U.S. 234,
238 (1968)(“The federal habeas corpus statute requires that the
applicant must be ‘in custody’ when the application for habeas
corpus is filed.”)

Although the phrase “in custody” is construed broadly, the
Supreme Court has stressed that a habeas petitioner cannot satisfy
that requirement if he “suffers no present restraint from” the
conviction he seeks to challenge. Garlotte v. Fordice, 515 U.S.
39, 45 (1995); Maleng v. Cook, 490 U.S. 488, 492 (1989). Two
Supreme Court cases are relevant. In Peyton v. Rowe, 391 U.S. 54,
67 (1968), the Supreme Court held that a district court may
entertain a habeas petition from a prisoner incarcerated under
consecutive sentences when the prisoner claims that a sentence he
is scheduled to serve in the future is unconstitutional. In
Garlotte v. Fordice, the Supreme Court addressed what it described
as “Peyton in reverse.” Garlotte entered simultaneous guilty pleas

in state court and was sentenced to three years' imprisonment for
a drug charge, to be followed by concurrent life sentences for
murder convictions. 515 U.S. at 41–42. Although Garlotte had
completed the three-year drug term and had begun serving the life
sentences for the murder charge, the Supreme Court allowed his
habeas petition, which challenged the validity of the drug
conviction. The Supreme Court concluded that “a prisoner serving
consecutive sentences is ‘in custody’ under any one of them for
purposes of the habeas statute.” Id. at 45–46 (quoting Peyton, 391
U.S. at 67). The Court focused on the “core purpose of habeas
review,” noting that Garlotte's challenge would shorten his term
of incarceration if he was successful. Id. at 47.

Here, in May 2019, when petitioner filed his § 2255 motions,
he was literally “in custody,” but in federal custody based upon
the Firearm Case, not the Ammunition Case in which he now seeks §
2255 relief. If petitioner’s claims are correct, he suffers a
present restraint from the Ammunition Case.
In May, 2019, petitioner had completely served all components
of his sentence in the Ammunition Case, but was serving sentences
in two federal cases, both of which were imposed to be served
2
consecutively to the Ammunition Case. Petitioner asserts that
if he prevails in this § 2255 proceeding, he will be released from
prison earlier on the Firearm Case and the Escape Case because the
Bureau of Prisons will aggregate the three sentences and
effectively credit the over-served time from the Ammunition Case.
If successful, petitioner will advance his release date, which is
sufficient to permit a § 2255 motion. Peyton, 391 U.S. at 66-67.
Under these circumstances, the Court finds petitioner was “in
custody” for purposes of § 2255 at the time he filed his § 2255
motions.
C. Mootness
The government also asserts that the § 2255 motions should be
dismissed as moot because petitioner has served his entire sentence
in the Ammunition Case. (Cv. Doc. #16, pp. 10-12.) Given the

nature of petitioner’s claims, the Court disagrees.
A federal court’s jurisdiction is limited to “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. A case or
controversy becomes moot when it no longer presents a live
controversy with respect to which the court can give meaningful
relief. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.
2008). A sentencing issue is moot when the defendant has already

2
The Escape Case sentence was expressly to be served consecutively
to the sentence in the Ammunition Case. The Firearm Case was
expressly to be served consecutively to the Escape Case sentence.
served his complete sentence, unless the defendant demonstrates
some sufficient “collateral consequences” flowing from the
sentence imposed. Spencer v. Kemna, 523 U.S. 1, 3, 14–17 (1998).

Since it is undisputed that petitioner has already served the
entire sentence imposed in the Ammunition Case, he no longer
automatically satisfies Article III’s “case-or-controversy”
requirement. Rather, petitioner bears the burden of showing that
he still suffers some sufficient collateral consequence from the
Ammunition Case sentence. Spencer v. Kemna, 523 U.S. at 7, 14.
The § 2255 motions are not moot. It is undisputed that
petitioner has not received credit for his “overservice” of the
sentence from the Ammunition Case. Petitioner has sufficiently
shown the existence of a sufficient collateral consequence of the
Ammunition Case that survives the full service of his sentence,
i.e., if petitioner’s position is correct, the Ammunition Case

adversely impacts the actual time petitioner will serve in custody
on the Firearm Case and the Escape Case. Additionally, “[b]ecause
success for [petitioner] could alter the supervised release
portion of his sentence, his appeal is not moot.” Dawson v. Scott,
50 F.3d 884, 886 (11th Cir. 1995).
D. Procedural Default
The government argues that petitioner procedurally defaulted
his claims by not arguing on direct appeal that he should have
received a term of supervised release. (Cv. Doc. #16, pp. 13-14.)
The Court finds there is no procedural default which allows the
Court to avoid the issues raised in the § 2255 motions.
Under the procedural default doctrine, a defendant must raise

any available challenge to a criminal conviction or sentence on
direct appeal, or otherwise be precluded from presenting those
claims in a federal § 2255 proceeding. McKay v. United States,
657 F.3d 1190, 1196 (11th Cir. 2011). There are two exceptions to
the procedural default rule: (1) where a defendant can show cause
for the default and actual prejudice from the error; and (2) when
there has been a miscarriage of justice, also known as the “actual
innocence” exception. Id. A meritorious claim of ineffective
assistance of counsel may constitute cause for a procedural
default. Murray v. Carrier, 477 U.S. 478, 488 (1986); United
States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).
Petitioner’s ineffective assistance of counsel claims are not

themselves procedurally defaulted. Massaro v. United States, 538
U.S. 500, 504 (2003). The underlying substantive issue regarding
the need to impose a term of supervised release is inextricably
intertwined with most of the ineffective assistance of counsel
claims, and the Court must resolve that issue to resolve these
ineffective assistance claims.
E. Unavailable Relief: Order to Bureau of Prisons
Both petitioner and his former counsel ask the Court to
utilize this § 2255 proceeding to order the Bureau of Prisons to
give petitioner the credit for the over-served time. Former
counsel argues that the Bureau of Prisons has erred by finding
petitioner was not in custody for purposes of aggregating his

sentence, and asks the Court to “remedy that error.” (Cv. Doc.
#10, pp. 6-7.) Petitioner asks the Court to order the Bureau of
Prisons to give him full credit, or to allow a new plea agreement
which guarantees the Bureau of Prison will give him full credit.
(Cv. Doc. #2, p. 13.) Neither form of relief is available to
petitioner even if he prevails in this § 2255 proceeding.
A challenge to the service of a sentence (as distinguished
from a challenge to the validity of a sentence) must be brought
pursuant to 28 U.S.C. § 2241, not pursuant to § 2255. Antonelli
v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008)
(challenges to the execution of a sentence, rather than the
validity of the sentence itself, are properly brought under §

2241). In such a proceeding, the applicable law is well-settled,
as the Eleventh Circuit has recently stated:
Under 18 U.S.C. § 3585(b), “[a] defendant
shall be given credit” for time served in
official detention “that has not been credited
against another sentence.” But in United
States v. Wilson, 503 U.S. 329, 112 S. Ct.
1351, 117 L. Ed. 2d 593 (1992), the Supreme
Court held that Ҥ 3585(b) does not authorize
a district court to compute the credit at
sentencing.” Id. at 334, 112 S. Ct. at 1354.
Instead, the Attorney General, acting through
the Bureau of Prisons (“BOP”), is responsible
for initially calculating credit for time
served. See id. at 334–35, 112 S. Ct. at 1355–
56; see also United States v. Alexander, 609
F.3d 1250, 1259–60 (11th Cir. 2010).
This Court has clarified that “prisoners may
seek judicial review of the [time-served]
calculation only after exhausting
administrative remedies.” Alexander, 609 F.3d
at 1259–60. That is, to seek credit for time
served, a prisoner must first use the BOP’s
formal process for filing a complaint. See
United States v. Lucas, 898 F.2d 1554, 1556
(11th Cir. 1990) (per curiam) (citing 28
C.F.R. §§ 542.10–.16). Only after the BOP has
issued a decision may a prisoner seek judicial
review of that administrative action. See id.
at 1555. The federal courts lack jurisdiction
over requests for custody-credit that were not
first asserted before the BOP. See id. at
1555–56.
United States v. Coates, 775 F. App’x 669, 670–71 (11th Cir. 2019).
The Court recognized this at the sentencing proceeding, and
declined to resolve the issue of credit for time served, deferring
to the Bureau of Prisons. (Cr. Doc. #84, pp. 30-31.) Thus, even
if petitioner is correct in his § 2255 issues, appropriate relief
does not include an order to the Bureau of Prisons as to how to
give petitioner credit on his sentences.
IV.
Most of the remaining issues are phrased in terms of
ineffective assistance of counsel claims. The Court will set
forth those legal principles, and then discuss the specific issues
raised by petitioner.
A. Ineffective Assistance of Counsel Standards

The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established. To prevail on
a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness and
(2) prejudice resulted because there is a reasonable probability
that, but for the deficient performance, the result of the
proceeding would have been different. See Hinton v. Alabama, 571
U.S. 263, 272-73 (2014) (citing Strickland v. Washington, 466 U.S.
668, 687, 694 (1984) and Padilla v. Kentucky, 559 U.S. 356, 366
(2010)). “Because a petitioner's failure to show either deficient
performance or prejudice is fatal to a Strickland claim, a court

need not address both Strickland prongs if the petitioner fails to
satisfy either of them.” Kokal v. Sec'y, Dep't of Corr., 623 F.3d
1331, 1344 (11th Cir. 2010) (citations omitted).
The proper measure of attorney performance is “simply
reasonableness under prevailing professional norms” considering
all the circumstances. Hinton, 571 U.S. at 273 (internal
quotations and citations omitted). “A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Strickland, 466 U.S. at 689;
see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (stating

courts must look to the facts at the time of counsel’s conduct).
This judicial scrutiny is highly deferential, and the Court adheres
to a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. See Strickland,
466 U.S. at 689-90.
To be objectively unreasonable, the performance must be such
that no competent counsel would have taken the action. See Rose
v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); see also Hall v.
Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an
attorney is not ineffective for failing to raise or preserve a
meritless issue. See United States v. Winfield, 960 F.2d 970, 974
(11th Cir. 1992); see also Ladd v. Jones, 864 F.2d 108, 109-10

(11th Cir. 1989).
The same deficient performance and prejudice standards apply
to appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86
(2000); see also Roe, 528 U.S. at 476-77. If the Court finds
there has been deficient performance, it must examine the merits
of the claim omitted on appeal. If the omitted claim would have
had a reasonable probability of success on appeal, then the
deficient performance resulted in prejudice. See Joiner v. United
States, 103 F.3d 961, 963 (11th Cir. 1997). Counsel is not
deficient for failing to raise non-meritorious claims on direct
appeal. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136,
1144-45 (11th Cir. 2005).
B. Specific Grounds Asserted in §2255 Motions

The Court addresses each of the grounds asserted by petitioner
or his attorney in the § 2255 motions, although not in the same
order as set forth in the § 2255 motions.
(1) Failure to File Notice of Appeal
Petitioner asserts that his attorney provided ineffective
assistance of counsel because he failed to file a notice of appeal
after his re-sentencing, as petitioner instructed him to do. (Cv.
Doc. #10, p. 10.)
The Eleventh Circuit recently summarized the pertinent legal
principles:
“In order to prevail on his claim that counsel
was constitutionally ineffective for failing
to file an appeal, [Rios] must show that
counsel’s performance was deficient and that
this deficiency prejudiced him.” Thompson, 504
F.3d at 1206; Roe v. Flores-Ortega, 528 U.S.
470, 476–77, 120 S. Ct. 1029, 145 L. Ed. 2d
985 (2000) (holding that the test from
Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L.Ed.2d 674 (1984), applies to
claims that a lawyer was ineffective for
failing to file an appeal).
A § 2255 movant can meet this test in two ways.
First, he can show that counsel disregarded a
specific instruction to file a notice of
appeal. Flores-Ortega, 528 U.S. at 477, 120 S.
Ct. 1029 (“We have long held that a lawyer who
disregards specific instructions from the
defendant to file a notice of appeal acts in
a manner that is professionally
unreasonable.”). Counsel’s performance in
these circumstances is per se deficient
because “the decision to appeal rests with the
defendant.” Id. at 479, 120 S. Ct. 1029.
Moreover, prejudice is presumed when counsel’s
deficient performance deprives a defendant of
an appeal that he otherwise would have taken.
Garza v. Idaho, U.S. , 139 S. Ct. 738,
744, 203 L. Ed. 2d 77 (2019).
Second, a § 2255 movant can show that counsel
failed to adequately consult with him about an
appeal and that, had he received reasonable
advice from counsel about the appeal, he would
have instructed his counsel to file an appeal.
Flores-Ortega, 528 U.S. at 478, 484, 486, 120
S. Ct. 1029; see Thompson, 504 F.3d at 1206
(“[A]dequate consultation requires informing
a client about his right to appeal, advising
the client about the advantages and
disadvantages of taking an appeal, and making
a reasonable effort to determine whether the
client wishes to pursue an appeal, regardless
of the merits of such an appeal.”). To prove
deficient performance under this route, the
movant must show that counsel had a
“constitutionally imposed duty to consult.”
Flores-Ortega, 528 U.S. at 480, 120 S. Ct.
1029. Counsel has a duty to consult when (1)
a rational defendant would want to appeal; or
(2) the particular defendant reasonably
demonstrated an interest in appealing.
Thompson, 504 F.3d at 1207. In making this
determination, courts must take into account
all the information counsel knew or should
have known. Flores-Ortega, 528 U.S. at 480,
120 S. Ct. 1029. While there is no “bright-
line rule” that counsel must always consult
with a defendant regarding an appeal, the
Supreme Court has recognized that counsel will
have a duty to consult “in the vast majority
of cases.” Id. at 480–81, 120 S. Ct. 1029.
Rios v. United States, 783 F. App’x 886, 890–91 (11th Cir. 2019)
(footnote omitted).
Here, the record clearly establishes that counsel did file a

Notice of Appeal after the re-sentencing. (Cr. Doc. #81.) The
Eleventh Circuit affirmed. United States v. Faircloth, 712 F.
App'x 887 (11th Cir. 2017). Therefore, petitioner’s claim is
without merit.
(2) Failure to File Petition for Writ of Certiorari
Petitioner asserts that his attorney provided ineffective
assistance by failing to file a petition for writ of certiorari
with the United States Supreme Court, as petitioner instructed.
(Cv. Doc. #2, p. 5.) Petitioner filed such a petition pro se,
which was denied.
While a criminal defendant has a constitutional and statutory
right to counsel in a direct appeal, a criminal defendant does not

have a constitutional right to counsel to pursue discretionary
review. Ross v. Moffitt, 417 U.S. 600, 617-18 (1974) (appointment
of counsel for indigent state defendants not required for
applications for writ of certiorari with the Supreme Court);
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)(“Our cases
establish that the right to appointed counsel extends to the first
appeal of right, and no further.”); Austin v. United States, 513
U.S. 5, 8 (1994). Review by the Supreme Court pursuant to a writ
of certiorari is discretionary. 28 U.S.C. § 1254. Since
petitioner had no constitutional right to counsel, he could not be
deprived of the effective assistance of counsel by his counsel's
failure to file an application for discretionary review.

Wainwright v. Torna, 455 U.S. 586, 587–88 (1982). Additionally,
petitioner cannot establish prejudice because a petition for
certiorari was filed and the Supreme Court declined to hear the
case. Faircloth v. United States, 138 S. Ct. 2012, 201 L. Ed. 2d
267 (2018). This ground is denied.
(3) Failure to Obtain Credit For Substantial Assistance
Petitioner asserts that his attorney provided ineffective
assistance of counsel because counsel did not object when
petitioner failed to receive any credit for substantial assistance
at the re-sentencing, contrary to the provisions of the Plea
Agreement. (Cv. Doc. #2, p. 7.)
The record establishes that petitioner’s claim is without

merit. The Plea Agreement did not compel a benefit for substantial
assistance, but only required the government to make a motion with
the court seeking such a benefit on petitioner’s behalf. (Cr.
Doc. #39, pp. 4-5.) More importantly, the record clearly
establishes that at re-sentencing the government continued to
request a four-level reduction for substantial assistance (Cr.
Doc. #84, p. 18), and petitioner did receive credit for substantial
assistance. The sentencing court had initially misspoke, imposing
a sentence of 63 months imprisonment. (Id. at 23-24.) When this
was pointed out, the Court imposed a sentence of 41 months
imprisonment in order to give petitioner credit for the substantial
assistance. (Id. at 29-30.)
(4) Whether Supervised Release Term Was Required

The crux of the motions is that the Court was required to
impose a term of supervised release upon re-sentencing, and erred
by failing to do so. (Cv. Docs. #10, pp. 8-9.)
The controlling statute, 18 U.S.C. § 3583(a), provides:
The court, in imposing a sentence to a term of
imprisonment for a felony or a misdemeanor,
may include as a part of the sentence a
requirement that the defendant be placed on a
term of supervised release after imprisonment,
except that the court shall include as a part
of the sentence a requirement that the
defendant be placed on a term of supervised
release if such a term is required by statute
or if the defendant has been convicted for the
first time of a domestic violence crime as
defined in section 3561(b).
18 U.S.C. § 3583. Thus, under Section 3583(a) a term of supervised
release is permissive, not mandatory, unless supervised release is
required by statute or if defendant is a first-time domestic
violence offender. Obviously, the domestic violence provision
does not apply to this case. The government states there is no
statute making imposition of a term of supervised release mandatory
in this case (Cv. Doc. #16, p. 15), and the Court agrees.
Petitioner’s former counsel relies upon a provision of the
Sentencing Guidelines (Cv. Doc. #10, p. 8), which obviously is not
a statute. Additionally, the cited Sentencing Guidelines
provision does not make imposition of a term of supervised release
mandatory.

Sentencing Guidelines § 5D1.1(a) and (b) provide in pertinent
part:
(a) The court shall order a term of supervised
release to follow imprisonment--
(1) when required by statute (see 18
U.S.C. § 3583(a)); or
(2) except as provided in subsection (c),
when a sentence of imprisonment of more
than one year is imposed.
(b) The court may order a term of supervised
release to follow imprisonment in any other
case. See 18 U.S.C. § 3583(a).
U.S. Sentencing Guideline Manual § 5D1.1(a), (b). The Application
Note for Subsection (a) states:
Under subsection (a), the court is required to
impose a term of supervised release to follow
imprisonment when supervised release is
required by statute or, except as provided in
subsection (c), when a sentence of
imprisonment of more than one year is imposed.
The court may depart from this guideline and
not impose a term of supervised release if
supervised release is not required by statute
and the court determines, after considering
the factors set forth in Note 3, that
supervised release is not necessary.
U.S. Sentencing Guidelines Manual § 5D1.1 cmt. n.1. The factors
set forth in Note 3 are:
(A) Statutory Factors.--In determining
whether to impose a term of supervised
release, the court is required by statute to
consider, among other factors:
(i) The nature and circumstances of the
offense and the history and characteristics of
the defendant;
(ii) The need to afford adequate deterrence to
criminal conduct, to protect the public from
further crimes of the defendant, and to
provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner;
(iii) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct; and
(iv) The need to provide restitution to any
victims of the offense.
U.S. Sentencing Guidelines Manual § 5D1.1, cmt. n.3. “Although
the sentencing guidelines call for supervised release in all
remaining cases with a prison sentence of more than one year (with
limited exceptions), see U.S. Sentencing Guidelines Manual §
5D1.1(a)(2), the Supreme Court made the relevant provisions of the
guidelines discretionary in 2005. See United States v. Booker, 543
U.S. 220, 245, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005); United
States v. Parker, 508 F.3d 434, 442 (7th Cir. 2007).” United
States v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015).
Here, the Court exercised its discretion and, given the
circumstances of the case, agreed with defense counsel that a term
of supervised release should not be imposed. This was not error,
contrary to petitioner’s current position.
(5) Ineffective Assistance Re: Supervised Release Term
Even though supervised release was not required, petitioner’s
attorney may have provided ineffective assistance by failing to

request imposition of a term of supervised release. While perhaps
counterintuitive, petitioner asserts his attorney should have
asked for a more severe sentence (i.e., the imposition of a term
of supervised release) in order to ensure that the Bureau of
Prisons gave him full credit for the over-served time from the
Ammunition Case.
The record establishes there was no ineffective assistance of
counsel. Petitioner concedes that his attorney made at least two
inquiries of a specialist with the Bureau of Prisons concerning
the subject of supervised release. While petitioner claims his
attorney received incorrect information both times, the attorney
cannot be faulted for that. Even now the parties dispute whether

the Bureau of Prisons would give petitioner the credit he seeks if
a term of supervised release had been imposed. Petitioner and his
former counsel rely from a snippet in what appears to be Bureau of
Prisons case notes to infer that credit would have been given if
supervised release had been imposed. (Cv. Doc. #1-1; Cv. Doc.
#10, p. 7.) The government argues that petitioner would not
receive credit even if supervised release had been imposed. (Cv.
Doc. #16, pp. 18-19.)
(6) Validity of Indictment
Petitioner adds a new issue in his reply memorandum, asserting
that in light of Rehaif v. United States, 139 S. Ct. 2191 (2019),

the Indictment did not contain an essential element of the charged
offense and the Court therefore lacked jurisdiction over him.
Petitioner is incorrect.
The Supreme Court clarified in Rehaif that, “in a prosecution
under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove
both that the defendant knew he possessed a firearm and that he
knew he belonged to the relevant category of persons barred from
possessing a firearm.” United States v. Reed, 941 F.3d 1018, 1020
(11th Cir. 2019) (quoting Rehaif, 139 S. Ct. at 2200). The
Indictment (Doc. #1) in this case did allege that defendant was a
convicted felon, but only alleged “knowing” possession of
ammunition. Defendant asserts that the Indictment does not state

a federal offense because it omits this now-required knowledge-
of-status element, fails to track the statute or statutory
language, and fails to contain a required reference to 18 U.S.C.
§ 924(a)(2).
Rehaif “did not announce a “new rule of constitutional law,”
In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019), and the
Supreme Court did not make Rehaif retroactive to cases on
collateral review. In re Wright, 942 F.3d 1063 (11th Cir. 2019).
Even if retroactive, the Eleventh Circuit has held that a Rehaif
defect does not result in a lack of subject matter jurisdiction.
United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 2020);
United States v. McLellan, 18-13289, 2020 WL 2188875, at *5 (11th

Cir. May 6, 2020). Contrary to defendant’s arguments, the
Indictment is not otherwise insufficient on its face. “So long
as the conduct described in the indictment is a criminal offense,
the mere omission of an element does not vitiate jurisdiction.”
Moore, at 1336.
Under Rehaif, petitioner established plain errors in the
Indictment. However, petitioner would have to “show a reasonable
probability that, but for the error, the outcome of the proceeding
would have been different.” Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016) (citation and internal quotation marks
omitted). Under the factual basis of the Plea Agreement (Cr. Doc.
#39), petitioner admitted to having had 11 prior felony offenses.

A review of the Presentence Report reflects a Criminal History
Score of 22, establishing petitioner as a Criminal History Category
of VI. At resentencing, defendant remained a Category VI. (Cr.
Doc. #69.) Much like Reed, petitioner had a prior felon in
possession of a firearm conviction as far back as 1979, and the
record therefore established that petitioner knew he was a felon,
and “he cannot prove that the errors affected his substantial
rights or the fairness, integrity, or public reputation of his
trial.” United States v. Reed, 941 F.3d 1018, 1022 (11th Cir.
2019).
Accordingly, it is hereby

ORDERED AND ADJUDGED:
1. Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (Cv. Doc. #1; Cr. Doc. #89; Cr. Doc.
#90) is DENIED.
2. The Clerk of the Court shall enter judgment accordingly
and close the civil file. The Clerk is further directed
to place a copy of the civil Judgment in the criminal
file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED. A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s
denial of his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009). “A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(B)(2). To make such
a showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted). Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this 18th day
of May, 2020.

Not & AKL.
JGHH E. STEELE
Sq IGOR UNITED STATES DISTRICT JUDGE
Copies:
Petitioner
AUSA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105157. Public record. Not legal advice.