Cobb v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES LEE COBB,

Petitioner,

v. Case No.: 8:18-cv-283-CEH-SPF

Case No.: 8:14-cr-123-CEH-SPF

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

James Lee Cobb moves under 28 U.S.C. § 2255 to vacate his convictions and

sentence for conspiracy, wire fraud, identify theft, and possession of a firearm by a

convicted felon. After pleading guilty, he is currently serving a guidelines sentence of

324 months. He proceeds on his second amended motion under § 2255. (Civ. Docs.

88, 96) Cobb challenges the validity of his guilty plea, claims he received ineffective

assistance of both trial and appellate counsel, and challenges his firearm possession

conviction as unconstitutional. He is entitled to no relief.

I. Background

Cobb was charged in a superseding indictment with conspiracy to commit mail

and wire fraud, in violation of 18 U.S.C. § 1349 (Count One); substantive wire fraud,

in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two through Five); aggravated

identify theft, in violation of 18 U.S.C. §§ 1028A and 2 (Counts Six through Nine);

and possession of a firearm and ammunition after having been convicted of a felony,

in violation of 18 U.S.C. § 922(g) and punishable under the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e) (Count Ten). (Crim. Doc. 37) On the morning of

trial, Cobb pleaded guilty to all charges without a plea agreement. (Crim. Doc. 134)

The district court sentenced Cobb to concurrent terms of 240 months on Counts

One through Five, 300 months on Count Ten, followed by concurrent 24-month terms

on Counts Six through Nine, for a total term of 324 months. (Crim. Docs. 178 at 2

and 238 at 224–25) The district court also imposed a five-year term of supervised

release. (Id.) Cobb appealed his sentence, and the circuit court affirmed. United States

v. Cobb, 842 F.3d 1213 (11th Cir. 2016).

In affirming Cobb’s 324-month sentence, the circuit court summarized the facts

of this case, id. at 1215–16:

Beginning in approximately 2011, and continuing

until 2013, Defendant and his wife Eneshia Carlyle, stole

identities from patients at the Department of Veterans’

Affairs (“VA”), ambulance services, hospitals, and clinics,

to electronically file fraudulent tax returns. Defendant and

his wife used prepaid debit cards to access the refunds

produced by these fraudulent tax returns.

The investigation into Defendant began in August

2012, following a routine traffic stop by the Tampa Police

Department. Defendant consented to a search of his

vehicle, and officers found receipts and debit cards

imprinted with names other than Defendant’s.

Following a trash pull at Defendant’s residence—

which revealed several debit cards with various names on

them, a sheet containing personally identifying

information, and a receipt for a cash-back transaction—

officers executed a search warrant at the residence. Officers

found over 300 debit cards, as well as medical records from

the VA, ambulance services, and hospitals. These records

contained approximately 7,000 pieces of personal

identifying information. The search also revealed two

firearms. In addition, officers found three keys to storage

units inside of Defendant’s wife’s purse. A subsequent

search of those storage units revealed trash bags filled with

medical records containing personal identifying

information, prepaid debit cards, and a Mercedes.

II. Discussion

Cobb now moves to vacate his convictions and sentence and claims that: (1) his

guilty plea was unknowing and involuntary; (2) counsel was ineffective for advising

him to plead guilty; (3) counsel was ineffective for not suppressing illegally-seized

evidence; (4) appellate counsel was ineffective for not challenging the validity of his

guilty plea; and (5) his § 922(g) conviction is unconstitutional after Rehaif v. United

States, 588 U.S. 225 (2019). (Civ. Docs. 88 and 96) The United States responds that

Grounds One and Five are procedurally defaulted and that all five claims lack merit.1

(Civ. Doc. 95)

Ineffective Assistance of Counsel Standard

The Sixth Amendment right to counsel is the right to effective assistance of

counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “When a convicted

defendant complains of the ineffectiveness of counsel’s assistance, the defendant must

show that counsel’s representation fell below an objective standard of reasonableness.”

1 The United States correctly argues that Cobb procedurally defaulted Grounds One and Five

by not raising them before the district court or on direct appeal. The district court rejects his

claims as meritless. See Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal

court may skip over the procedural default analysis if a claim would fail on the merits in any

event.”); Garrison v. United States, 73 F.4th 1354, 1359 n.9 (11th Cir. 2023) (same).

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Because a lawyer is presumed

to be competent to assist a defendant, the burden is on the petitioner to demonstrate

that he was denied the effective assistance of counsel. United States v. Cronic, 466 U.S.

648, 658 (1984).

To prevail on a claim of ineffective assistance of counsel, the petitioner must

show that (1) counsel’s representation fell below an objective standard of reasonable

professional assistance; and (2) the petitioner was prejudiced by that deficient

performance. Strickland, 466 U.S. at 693-94. To establish deficient performance, a

petitioner must show that “no competent counsel would have taken the action that his

counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en

banc). When evaluating performance, the district court must apply a strong

presumption that counsel has “rendered adequate assistance and [has] made all

significant decisions in the exercise of reasonable professional judgment.” Strickland,

466 U.S. at 690. A petitioner demonstrates prejudice only when he establishes “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. Courts “are free to dispose of

ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 F.3d 1018,

1023 (11th Cir. 2004).

A. Grounds One and Two: Plea Colloquy Claims

In Grounds One and Two, Cobb raises related claims challenging the validity

of his guilty plea.

1. Background

One week before trial, on November 24, 2014, the district court conducted a

hearing on a motion in limine filed on behalf of Cobb by trial counsel. (Crim. Doc.

253) During that hearing, Cobb moved for new counsel because he was dissatisfied

with trial counsel’s representation.2 (Crim. Doc. 82) He complained that trial counsel

failed to provide him with discovery materials, refused to file a speedy-trial motion,

and refused to pursue his theory that a video recording of law enforcement’s execution

of a search warrant was incomplete. (Crim. Doc. 253 at 14–19) The district court

expressed concern that Cobb made similar complaints about his first court-appointed

counsel, and ultimately, denied the motion for new counsel and concluded that

“irreconcilable differences ha[d] not arisen[.]” (Id. at 4–5, 12, 9–23) The district court

advised that Cobb’s trial would begin the following Monday, December 1, 2014, as

previously scheduled. (Id. at 29)

On the morning of trial, Cobb again expressed his dissatisfaction with trial

counsel. (Crim. Doc. 255 at 8) The district court explained that Cobb’s complaints

were “resolved to [its] satisfaction” and trial would begin as scheduled.3 (Id. at 8–9)

2 This was Cobb’s second motion for appointment of new counsel. Cobb had already received

new counsel because of his dissatisfaction with his first court-appointed counsel. (Crim.

Docs. 27–29)

3 Additionally, the United States informed the district court that, after the motion hearing on

November 24, Cobb expressed his desire to plead guilty. (Crim. Doc. 255 at 13–14) The

United States drafted a plea agreement and gave it to Cobb’s counsel who gave it to Cobb on

November 26. (Id.) Cobb rejected the plea agreement on November 28, the Friday before

trial. (Id.)

The district court recessed the proceedings to wait for Cobb’s attire to be delivered.

(Id. at 6–11)

During that recess, Cobb decided to plead guilty to all charges without a plea

agreement.4 (Crim. Doc. 134 at 4) Cobb understood that he could proceed to trial

without counsel and that it would be difficult to withdraw his guilty plea (id. at 4–7):

Court: Mr. Cobb, I have been advised by counsel that

while we were on recess waiting for Miss

Carlyle to bring your clothes for the jury trial,

that you have decided that you’d like to enter

a plea to the charges against you. Is that

correct, sir?

Cobb: Yea.

. . .

Court: [W]hile I denied your motion to dismiss

counsel, which I interpreted as a request by

you for me to appoint a new counsel, . . . I

want you to understand that you do have the

right to proceed to trial without counsel. Do

you understand that?

Cobb: Yes, ma’am.

. . .

Court: You also need to understand that if you decide

to enter your guilty plea today and that plea is

accepted by me, then it becomes much more

difficult, if not impossible, to change your

mind later on. Do you understand that?

Cobb: Yes, ma’am.

4 In his responsive affidavit, trial counsel avers that he “was fully prepared for trial” and that

Cobb “unilaterally made the decision to plead guilty” on the morning trial was scheduled to

begin. (Civ. Doc. 45-1)

During his plea colloquy, Cobb confirmed that he understood his right to

proceed to trial and that, by pleading guilty, he was waiving his right to present a

defense to the charges or an objection to the evidence. (Id. at 9–10, 21–24) Cobb

repeatedly confirmed that he was “pleading guilty of [his] own free will because [he]

[is] guilty[]” and that no one forced or threatened him or made any promises or

assurances to him regarding his decision to plead guilty. (Id. at 13, 45–46) Cobb stated

to the district court, “I am entering a plea because I’m guilty.” (Id. at 45) And, when

the district court asked if he was “pleading guilty because [he] [is], in fact, guilty of

these charges[,]” Cobb responded, “Yes, ma’am.” (Id. at 51)

Also, Cobb specifically expressed his satisfaction with trial counsel’s

representation (Id. at 10–11):

Court: Is there anything that you’ve asked your

lawyer to do about your case which you

believe Mr. Ciaravella has not done?

Cobb: I advised—yes, we talked about what we

needed to talk about.

Court: Are there any matters that the court needs to

be made aware of that . . . you did not put in

your motion to dismiss, which we addressed

this past Monday, that I need to be made

aware of that you’d like for me to discuss with

you and your counsel?

Cobb: No, ma’am.

Court: Is there anything that you believe your lawyer

has done in an unsatisfactory manner, again,

other than the motion to dismiss and the

matters that we addressed on Monday?

Cobb: No, ma’am.

Court: Do you have any problems concerning issues

or questions regarding the quality of the legal

service you have been rendered in this case

and, again, other than what we previously

discussed on Monday?

Cobb: No, ma’am.

Court: Do you need to confer with your lawyer or

anyone before proceeding in this hearing?

Cobb: No, ma’am.

Court: Are you fully satisfied with the advice and

representation your counsel[] provided to you

in this case?

Cobb: Yes, ma’am.

The district court described the essential elements of the offenses to which Cobb

was pleading guilty, as well as the maximum sentence he faced, and Cobb expressed

his understanding of those elements and penalties. (Id. at 15–17) He understood that

“the sentence actually imposed by the court and the guidelines calculation determined

by the court may be different from any estimate or prediction that [his] attorney has

provided to [him][.]” (Id. at 19) Also, he understood that “if that estimate or

prediction is incorrect or proves wrong, that [he] would still by bound by [his] guilty

plea and could not withdraw it.” (Id.) The district court found that Cobb was pleading

guilty freely, voluntarily, and knowingly and with the advice of counsel, and Cobb

voiced no objection to this finding. (Id. at 51–52)

Approximately five months later, on April 29, 2015, Cobb filed a pro se “Motion

to Compel Counsel to Withdraw Plea,” in which he argued that his guilty plea was

involuntary. (Crim. Doc. 152) He claimed, that on December 1, 2014, he “was

completely unaware that he would commence trial and yet he found himself with the

frightening realization that his trial was set to commence.” (Id. at 1) According to

Cobb, he pleaded guilty “out of desperation” because he “had serious misgivings about

his attorney’s general preparedness” and “[saw] no option” other than to proceed to

trial. (Id. at 2) He further claimed that “he is innocent and entered the plea because,

after sitting in court for nearly one hour waiting for trial clothes to arrive he felt

completely defeated, overwhelmed, and exhausted through a lack of sleep.”5 (Id.)

The district court conducted a hearing on the motion to withdraw the guilty

plea during which it heard testimony from Cobb and reviewed the transcript of his plea

colloquy. (Crim. Doc. 236) Because the record showed that Cobb’s plea was knowing

and voluntary, the district court denied the motion (id. at 24):

Court: [T]he motion that I have in front of me is a

motion to withdraw because you don’t believe

your guilty plea was knowing and voluntary;

and the record—the transcript of that plea

colloquy, which has been filed, clearly reflects

to the contrary.

5 Cobb filed additional motions in which he repeated his complaints about trial counsel and

sought to withdraw his guilty plea. (Crim. Docs. 150 and 151) Trial counsel also filed a

motion to withdraw Cobb’s guilty plea on Cobb’s behalf and claimed, without any

explanation, that Cobb’s plea was unknowing and involuntary. (Crim. Doc. 155) The United

States opposed the motions. (Crim. Doc. 156)

I asked you not once, but twice about that, and

your response was yes, that you were doing it

because that’s what you wanted to do, that

you were pleading guilty because you were in

fact, guilty.

2. Analysis

In Ground One, Cobb claims his guilty plea was involuntary and unknowing

(1) because he did not receive “real notice” of the essential elements of § 924(e), and

(2) because he was misadvised that the maximum term of supervised release under §

924(e) was three years rather than five years. In his reply, he clarifies that his claim is

based on the fact that, during his plea colloquy, “the court at no time outlined the

elements or its penalties in regards to 924(e), and what the government was obligated

to prove in order to obtain a conviction under § 924(e)(2)(A)(i) or (ii).” (Civ. Doc. 96

at 6) He repeats that he received no notice of “the elements that causes a 15 year

mandatory minimum to life sentence as defined within 924(e)’s definition to be eligible

for an ACCA designation.” (Id. at 4)

In a related claim at Ground Two, Cobb claims that trial counsel was ineffective

for advising him to plead guilty when the district court failed to adequately advise him

of the essential elements and penalties under § 924(e). (Civ. Doc. 96 at 8–9) He argues

that trial counsel “should have been aware of the government’s failure to provide

notice of the elements” and penalties. (Civ. Doc. 88-2) He urges the district court to

allow him to withdraw his guilty plea and proceed to trial. (Civ. Doc. 96 at 7)

Once a guilty plea becomes final, a subsequently filed § 2255 motion “is

ordinarily confined to whether the underlying plea was both counseled and voluntary.

If the answer is in the affirmative, then the conviction and the plea, as a general rule,

foreclose the collateral attack.” United States v. Broce, 488 U.S. 563, 569 (1989). “Rule

11(b) [of the Federal Rules of Criminal Procedure] sets out procedures that district

courts must follow when accepting guilty pleas.” United States v. Presendieu, 880 F.3d

1228, 1238 (11th Cir. 2018). Rule 11 is designed to address the “three core objectives”

for a knowing and voluntary plea: (1) that the plea is free from coercion; (2) that the

defendant understands the charges against him; and (3) that the defendant understands

the consequences of his guilty plea. Id.

“There is no rigid formula or ‘mechanical rule’ for determining whether the

district court adequately informed the defendant of the nature of the charges.”

Presendieu, 880 F. 3d at 1238. “Importantly, Rule 11 does not specify that a district

court must list the elements of an offense.” Id. “District courts must ensure one way

or another, that the defendant knows and understands the nature of the offenses to

which he or she is pleading guilty.” Id. at 1239.

The record shows that Cobb’s plea was both knowing and voluntary, and his

efforts to invalidate that plea—whether by claiming ignorance of the charged offenses

and penalties (Ground One) or by claiming ineffective assistance of counsel (Ground

Two)—must fail. During the plea colloquy, the district court explained the essential

elements of the § 922(g) offense charged in Count Ten, as well as the enhanced

sentence Cobb faced as an armed career criminal under § 924(e), and Cobb affirmed

his understanding (Crim. Doc. 134 at 16–17):

Court: Count 10 of the indictment charges felon in

possession of a firearm under 18 U.S.C.

section 922(g), the elements of which are as

follows: The defendant knowingly possessed a

firearm in or affecting interstate or foreign

commerce and, second, before possessing the

firearm, the defendant had been convicted of a

felony, a crime—that being a crime punishable

by imprisonment for more than one year. . . .

Count 10 carries a mandatory term of

imprisonment of 15 years to life, and that’s

because of your armed career criminal status,

a fine of not more than 250,000, a term of

supervised release of not more than three

years,6 and a special assessment of $100.

Do you understand those penalties, Mr. Cobb?

Cobb: Yes, ma’am.

Court: Do you have any questions regarding those

penalties or the elements that I just advised

you of?

Cobb: No, ma’am.

Although the district court did not read to Cobb the statutory elements

necessary to impose an enhanced sentence under § 924(e), it is clear that Cobb

understood he faced an enhanced sentence as an armed career criminal, he was not

coerced or forced to plead guilty, and he was satisfied with counsel’s representation.

Cobb’s statements at the plea hearing “constitute a formidable barrier in any

6 On Count Ten, Cobb faced a maximum term of supervised release of five years—not three

years. Both the initial and final presentence reports correctly state, “The Court may impose

a term of supervised release of not more than five years.” (Crim. Doc. 119 at ¶ 115; Crim.

Doc. 128 at ¶ 115)

subsequent collateral proceedings” because “[s]olemn declarations in open court carry

a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also

United States v. Medlock, 12 F.3d 185, 187 (11t6h Cir. 1994) (“There is a strong

presumption that the statements under oath at a plea colloquy are true.”). “[W]hen a

defendant makes statements under oath at a plea colloquy, he bears a heavy burden to

show his statements were false.” United State v. Rogers, 848 F.2d 166, 168 (11th Cir.

1988). Furthermore, “[t]he ACCA does not create a separate offense, but merely

provides for sentencing enhancements.” United States v. Harin, No. 20-14497, 2024

WL 4563684, at *2 (11th Cir. Oct. 24, 2024) (citing United States v. Ruo, 943 F.2d 1274,

1275 (11th Cir. 1991)). Cobb offers no explanation to disavow his sworn admissions

under oath that he understood he faced an enhanced sentence as an armed career

criminal. See Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014)

(“The district court is entitled to discredit a defendant’s newly-minted story . . . when

that story is supported only by the defendant’s conclusory statements” and is

contradicted by the record of the change-of-plea colloquy.); see also Griffin v. United

States, No. 22-12476, 2023 WL 8724660, at *4 (11th Cir. Dec. 18, 2023) (affirming

denial of § 2255 relief when neither the district court nor counsel advised defendant of

§ 924(c) elements because “the record indicates that [the defendant] understood the

nature of the charges against him, understood the consequences of the plea, and was

not coerced”).

Furthermore, the fact that Cobb was misadvised during the plea colloquy that

under § 924(e) he faced a maximum term of supervised release of three years rather

than five years is insufficient to invalidate his guilty plea. The record shows that both

the initial and final presentence report correctly state that, for Count Ten, Cobb faced

a maximum term of supervised release of five years. (Crim. Doc. 119 at ¶ 115; Crim.

Doc. 128 at ¶ 115) And, at sentencing, Cobb neglected to raise any issue regarding the

discrepancy. (Crim. Doc. 238)

Cobb does not go so far as to claim that he would not have pleaded guilty if he

had been correctly advised that he faced a five-year term of supervised release for

Count Ten. Nevertheless, he would be entitled to no relief on such claim because the

term of supervised release was corrected in the presentence report and Cobb neglected

to move to withdraw his guilty plea after the district court imposed a five-year term of

supervised release for Count Ten, which was longer than the three-year maximum

stated in the plea colloquy. See United States v. Brown, 586 F.3d 1342, 1346 (11th Cir.

2009) (ruling that although the defendant was incorrectly advised during the plea

hearing about the length of supervised release, the Rule 11 violation did not invalidate

a guilty plea because the presentence report correctly stated the maximum term of

supervised release); United States v. Nelson, 370 F. App’x 15 (11th Cir. 2010) (same); see

also Cubero v. United States, No. 17-13736, 2018 WL 11397991, at *5–6 (11th Cir. Jan.

5, 2018) (denying a certificate of appealability because although the defendant was

incorrectly advised during the plea hearing about the length of supervised release, the

presentence report correctly stated that he faced a life term and he did not object to the

presentence report). Accordingly, Cobb fails to show that his guilty plea was

involuntary, unknowing, or caused by ineffective assistance of counsel.

B. Ground Three: Ineffective Assistance for Not Suppressing Evidence

In Ground Three, Cobb claims that trial counsel was ineffective for not

suppressing evidence that he believes law enforcement illegally seized during a non-

consensual traffic stop, a trash pull that he believes never occurred, and a search of his

residence. He argues that trial counsel’s failure to effectively litigate the Fourth

Amendment issues prejudiced him by forcing him to plead guilty to avoid a life

sentence. (Civ. Doc. 88-2 at 25)

Cobb waived this claim with his knowing and voluntary guilty plea. After

pleading guilty, a § 2255 movant may not raise claims relating to the alleged

deprivation of constitutional rights that occurred before the entry of the guilty plea, but

may raise only jurisdictional issues, United States v. Patti, 337 F.3d 1317, 1320 (11th

Cir. 2003), attack the voluntary and knowing character of the guilty plea, Wilson v.

United States, 962 F.2d 996, 997 (11th Cir. 1992), or challenge the constitutional

effectiveness of the assistance he received from counsel in deciding to plead guilty,

United States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986). All pre-plea ineffective-

assistance-of-counsel claims are waived by the entry of a guilty plea. See Wilson, 962

F.2d at 997.

A guilty plea also prevents a defendant from challenging the constitutionality of

“case-related government conduct that takes place before the plea is entered.” Class v.

United States, 583 U.S. 174, 182 (2018) (citing Haring v. Prosise, 462 U.S. 306, 320 (1983)

(holding that a valid guilty plea “results in the defendant’s loss of any meaningful

opportunity he might otherwise have had to challenge the admissibility of evidence

obtained in violation of the Fourth Amendment”)). Thus, once a defendant enters a

knowing and voluntary guilty plea, “he 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).

During the plea colloquy, Cobb specifically acknowledged his understanding of

this waiver. The district court asked Cobb, “do you understand that by pleading guilty,

if you have any defense to the charges or any objection to the evidence or how the

charges were brought against you, by pleading guilty, you’re waiving any right to make

objections to those matters?[,]” to which Cobb responded, “Yes, ma’am.” (Crim. Doc.

134 at 24) Furthermore, Cobb confirmed that he had “fully discussed with [his]

attorney the discovery in the case, as well as any investigations that might need to be

conducted[,]” and repeatedly expressed his satisfaction with counsel’s advice and

representation. (Id. at 10–11) Cobb advances no argument or evidence to disavow his

sworn confirmation that he understood he was waiving his right to challenge the

manner in which the United States obtained evidence against him and that he was

satisfied with trial counsel’s representation.

Alternatively, Cobb is entitled to no relief on this claim because he cannot show

counsel’s performance was ineffective or prejudicial. “A failure to file a motion to

suppress that is based on a lack of knowledge of the state of evidence due to counsel’s

misunderstanding or ignorance of the law or failure to conduct adequate investigations

can satisfy Strickland’s deficiency prong.” Green v. Nelson, 595 F.3d 1245, 1249 (11th

Cir. 2010). However, the record shows that trial counsel’s decision not to file a motion

to suppress was not the result of misunderstanding, ignorance of the law, or an

inadequate investigation. Rather, the record shows that Cobb’s concerns regarding

the seizure of evidence were extensively and repeatedly litigated throughout the

prosecution. Indeed, at sentencing, when Cobb again sought to withdraw his guilty

plea and to disqualify counsel, the district court reminded Cobb that both trial counsel

and the district court had addressed his concerns regarding the seizure of evidence

during the traffic stop, the trash pull, and the search of his home, and had resolved

those issues in accordance with the law. (Crim. Doc. 238 at 6–15, summarizing

extensive litigation at various hearings regarding Cobb’s repeated complaints).

The record shows that trial counsel “didn’t feel in good faith [he] could file a

motion to suppress on the facts that [he] was aware of.” (Id. at 11) Consistent with

that belief, in his responsive affidavit, counsel avers (Civ. Doc. 45-1 at 4):

Mr. Cobb was the subject of two searches one of a car he

was driving and another of his home. Both of those

searches yielded evidence that negatively impacted Mr.

Cobb’s case. I spent in excess of twenty hours reviewing

those searches and in legal research attempting to uncover

a legal basis for suppression of the searches. Additionally,

I obtained the consent of Magistrate Pizzo and of counsel

for the government to review and copy the original sealed

search warrant court files. On October 1, 2014, I reviewed

the copies of the sealed files with Mr. Cobb. Unfortunately,

there was no factual or legal basis to allege that the searches

were illegal. I conveyed this information to Mr. Cobb on

multiple occasions.

Instead of moving to suppress, trial counsel strategically chose to lodge objections to

the presentence report regarding the traffic stop and trash pull. (Crim. Doc. 128 at 33)

After hearing testimony and argument, the district court overruled those objections

finding that “the government has adequately and sufficiently established the facts as

set forth in Paragraphs 10 and 12 of the presentence investigation report.” (Id. at 166–

67) Cobb’s claim essentially amounts to his disagreement with trial counsel’s strategic

choice not to file a motion to suppress and instead to file objections to the presentence

report. “[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable[.]” Strickland, 466 U.S. at 690. And,

the fact that trial counsel’s objections to the presentence report were unsuccessful does

not prove ineffective assistance of counsel. See Ward v. Hall, 592 F.3d 1144, 1164 (11th

Cir. 2010).

C. Ground Four: Ineffective Assistance of Appellate Counsel

In Ground Four, Cobb claims appellate counsel was ineffective for not

challenging the validity of his guilty plea. (Civ. Doc. 88 at 8 and 88-2 at 29–32; Civ.

Doc. 96 at 17–18) He repeats that his guilty plea was invalid because he did not receive

notice of the essential elements and penalties of the enhanced sentence under § 924(e),

and he claims appellate counsel was constitutionally ineffective for not challenging his

guilty plea on this basis.

Claims of ineffective appellate counsel are governed by the same standards

applied to trial counsel under Strickland. Dell v. United States, 70 F.3d 1267, 1273 (11th

Cir. 2013). In the appellate context, “it is difficult to demonstrate that counsel was

incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted).

“Appellate counsel . . . need not (and should not) raise every nonfrivolous claim, but

rather may select from among them in order to maximize the likelihood of success on

appeal.” Id. Indeed, a “brief that raises every colorable issue runs the risk of burying

good arguments . . . in a verbal mound made up on strong and week contentions.”

Jones v. Barnes, 463 U.S. 745, 753 (1983). “[The] process of ‘winnowing out weaker

arguments on appeal and focusing on’ those more likely to prevail, far from being

evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v.

Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751–52). “Generally,

only when ignored issues are clearly stronger than those presented, will the

presumption of effective assistance of counsel be overcome.” Smith v. Robbins, 528

U.S. 259, 288 (2000) (citation omitted). And, “appellate counsel is not ineffective for

failing to raise claims reasonably considered to be without merit.” Siler v. United States,

852 F. App’x 490, 492 (11th Cir. 2021) (citing United States v. Nyhuis, 211 F.3d 1340,

1344 (11th Cir. 2000)).

Appellate counsel challenged Cobb’s sentence and argued that the district court

(1) clearly erred in estimating the loss amount and the number of victims and in

calculating the amount of restitution; (2) erred by applying the vulnerable-victim

enhancement, and (3) plainly erred by imposing an enhancement for production of an

unauthorized access device and by sentencing Cobb as an armed career criminal.

Cobb, 842 F.3d at 1215. The circuit court rejected each of these arguments and

affirmed Cobb’s sentence. Id. at 1218–23.

Cobb cannot show that a challenge to the validity of his guilty plea is clearly

stronger than the sentencing issues appellate counsel pursued because, as explained

supra, his guilty plea was knowing and voluntary. And, Cobb fails to show that, but

for any errors during his plea colloquy, he would not have pleaded guilty and would

have proceeded to trial. The record shows that Cobb pleaded guilty because he is, in

fact, guilty and that he voluntarily chose to plead guilty on the morning of trial.

Appellate counsel was not ineffective for not raising a meritless challenge to the

validity of his guilty plea. See Siler, 852 F. App’x at 492 (affirming that appellate

counsel was not ineffective for not raising a meritless challenge to the district court’s

response to a jury question); see also Cubero, No. 17-13736, 2018 WL 11397991, at *5–

6 (denying a certificate of appealability because appellate counsel was not ineffective

for not challenging a guilty plea on the basis of the district court’s incorrect advice

regarding the maximum term of supervised release).

D. Ground Five: Rehaif Error

In Ground Five, Cobb claims that his firearm possession conviction is

unconstitutional after Rehaif, 588 U.S. at 227, which holds that to convict a defendant

under 18 US.C. § 922(g), the government “must show that the defendant knew he

possessed a firearm and also that he knew he had the relevant status [as a felon] when

he possessed it.” Cobb argues that the district court failed to inform him during the

plea colloquy that an element of his offense was knowledge of his status as a felon.

According to Cobb, this Rehaif error resulted in a plea that was unknowing and

involuntary.

Cobb’s claim lacks merit because the record contains sufficient evidence that

Cobb knew he was a felon when he possessed the firearm. See Rehaif, 588 U. S. at

233–34 (noting that the United States’ obligation to prove knowledge-of-status is not

“burdensome” because “knowledge can be inferred from circumstantial evidence”);

see also Greer v. United States, 593 U.S. 503, 508 (2021) (“If a person is a felon, he

ordinarily knows he is a felon. Felony status is simply not the kind of thing that one

forgets.”) (quotations omitted). “[H]ad the government been required to prove that

[Cobb] knew he was a felon at the time he possessed a firearm, there is overwhelming

evidence to show that it would have easily done so.” United States v. Bates, 960 F.3d

1278, 1296 (11th Cir. 2020).

The presentence report details Cobb’s prior felony convictions. According to

the portions of the presentence report to which Cobb did not object, he pleaded guilty

to, and was convicted of, trafficking marijuana and being a felon in possession of

firearm, for which he served 41 months. Crim. Doc. 128 at ¶ 71; see United States v.

Cobb, 8:07-cr-401-JSM-TGW; see also United States v. Wade, 458 F.3d 1273, 1277 (11th

Cir. 2006) (“It is the law of this circuit that a failure to object to allegations of fact in a

PSI admits those facts for sentencing purposes.”). He was also convicted in a Florida

state court of trafficking cocaine, for which he served three years. (Crim. Doc. 128 at

¶¶ 69–70) Given his prior felony convictions, the length of his sentences, and the fact

that he served over six years in prison for his felony convictions, Cobb could not have

credibly argued that he did not know he was previously convicted of a felony when he

possessed the firearm. See Bates, 960 F.3d at 1296 (finding that the defendant’s seven

prior felony convictions provided “overwhelming evidence” that the defendant knew

he was a felon); United States v. McLellan, 958 F.3d 1110, 1119–20 (11th Cir. 2020)

(finding it “inconceivable” that the defendant did not know he was a felon when he

served ten years in prison).

Cobb does not assert that he would have proceeded to trial rather than enter his

guilty plea but for the Rehaif error, nor does he identify evidence upon which he could

have relied to suggest that he did not know he was a felon when he possessed the

firearm. See Greer, 593 U.S. at 510 (holding that the defendant could not show there

was a reasonable probability he would have gone to trial rather than plead guilty when

he neglected to argue “that [he] would have presented evidence at trial that [he] did

not in fact know [he was a] felon”); see also United States v. Roosevelt Coats, 8 F.4th 1228,

1238 (11th Cir. 2021) (“Defendant’s failure to attempt an explanation as to why

awareness of the knowledge-of-status element would have caused him to reconsider

his choice to plead guilty is unsurprising. The record here demonstrates that the

Government could have readily proven beyond a reasonable doubt that Defendant had

the relevant knowledge.”); United States v. Innocent, 977 F.3d 1077, 1083 (11th Cir.

2020) (finding that the defendant “can point to no convincing reason to think he did

not know of his prohibited status despite being convicted of four felonies”).

Accordingly, Cobb’s Rehaif claim lacks merit.

III. Conclusion

Cobb’s motion under 28 U.S.C. § 2255 (Civ. Doc. 88) is DENIED. Cobb’s

motion for appointment of counsel and an evidentiary hearing (Civ. Doc. 97) is

DENIED AS MOOT. The Clerk is directed to enter judgment against Cobb,

terminate any pending motions, and close this case. The Clerk is further directed to

enter a copy of this order in the criminal action and terminate the motions at docket

entries 380 and 396 in the criminal action.

Cobb is not entitled to a certificate of appealability. To obtain a certificate of

appealability, the petitioner must show that reasonable jurists would find debatable

both (1) the merits of the underlying claims and (2) the procedural issues he seeks to

raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.

Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because Cobb fails to show that

reasonable jurists would debate either the merits of the claims or the procedural issues,

he is not entitled to a certificate of appealability or to appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida on December 12, 2024.

Chae sas Cuda as Wana A gl ell Q_

Charlene Edwards Honeywell

United States District Judge

Copies to:

Pro Se Petitioner

Counsel of Record

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