# Cobb v. United States

> District Court, M.D. Florida · December 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10761590

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 12, 2024
- **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/10761590

## How later opinions describe it (automated extraction)

- 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”
- finding it “inconceivable” that the defendant did not know he was a felon when he served ten years in prison

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10761590. Public record. Not legal advice.