Forbes v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DARRYL CLEON FORBES,

Petitioner,

vs. Case No. 3:21-cv-1073-BJD-SJH

3:18-cr-231-BJD-SJH

UNITED STATES OF AMERICA,

Respondent.

_________________________________

ORDER

I. INTRODUCTION

Petitioner, Darryl Cleon Forbes, a federal inmate, is proceeding pro se on

a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255

(Civ. Doc. 1, Crim. Doc. 77; Pet. Mot.).1 The Government opposes the Motion

(Civ. Doc. 3; Gov’t Resp.). Petitioner opted not to file a reply. See Civ. Doc. 6 at

1 (advising Petitioner would “rely on the assertions and claims in his original

[M]otion”).

1 Citations to the record in the civil case will be denoted, “Civ. Doc.,” and citations to

the record in the criminal case will be denoted, “Crim. Doc.” Page numbers are those assigned

by the Court’s electronic case management system.

Under § 2255 and Rule 8(a) of the Rules Governing § 2255 Proceedings,2

and in accordance with Petitioner’s request, see Pet. Mot. at 8, the Court has

considered the need for an evidentiary hearing and determines that a hearing

is unnecessary. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015)

(“The district court is not required to grant a petitioner an evidentiary hearing

if the § 2255 motion ‘and the files and records of the case conclusively show

that the prisoner is entitled to no relief.’”). See also Tejada v. Dugger, 941 F.2d

1551, 1559 (11th Cir. 1991) (holding that a § 2255 movant is not entitled to a

hearing “when his claims are merely conclusory allegations unsupported by

specifics or contentions that in the face of the record are wholly incredible”).

Thus, the Motion is ripe for review.

II. BACKGROUND

On December 20, 2018, a grand jury returned an Indictment charging

Petitioner with one count of conspiracy to commit wire fraud in violation of 18

U.S.C. §§ 1343 and 1349. Crim. Doc. 1 at 1–2, 5. The grand jury estimated

Petitioner’s ill-gotten gains totaled at least $3.6 million. Id. at 6. According to

the Indictment, Petitioner, a Jamaican citizen, along with unnamed co-

conspirators, “operated a fraudulent sweepstakes scheme in Jamaica, the

2 Rule 8(a) of the Rules Governing § 2255 Proceedings expressly requires the Court to

review the record, including any transcripts and submitted materials to determine whether

an evidentiary hearing is warranted before resolving a § 2255 motion.

2

Middle District of Florida[,] and elsewhere.” Id. at 1, 3. The grand jury found

Petitioner and his co-conspirators “falsely informed victims in the United

States they had won a prize in a sweepstakes and had to send money to

specified accounts to pay various fees and taxes necessary to retrieve their

prize[s].” Id. Additionally, the grand jury found Petitioner “knowingly and

willfully transmit[ted] and cause[d] to be transmitted by means of wire in

interstate and foreign commerce, writing, signs, signals, pictures, and sounds,

in violation of 18 U.S.C. § 1343.” Id. at 2. Under the scheme, Petitioner and co-

conspirators “recruited United States residents to open bank accounts in the

United States” where the fraudulently obtained funds could be deposited and

then withdrawn by or transferred to Petitioner and his co-conspirators “for

their own personal use.” Id. at 4–5.

Petitioner initially entered a plea of not guilty, and a trial date was set.

See Crim. Docs. 17, 20. However, on November 18, 2019, with the assistance of

retained counsel, Petitioner entered a guilty plea at a change-of-plea hearing

before the assigned Magistrate Judge. Crim. Doc. 38.3 The Magistrate Judge’s

Report and Recommendation noted that the judge cautioned and examined

Petitioner under oath “concerning each of the subjects mentioned in Rule 11,

3 Petitioner consented to the Magistrate Judge’s authority to conduct the

proceedings required by Rule 11 of the Federal Rules of Criminal Procedure. See

Crim. Doc. 39.

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[and] determined that the guilty plea was knowing and voluntary.” See Crim.

Doc. 41. The transcript of the proceeding confirms as much. See Crim. Doc. 78.

Before accepting Petitioner’s plea, the Magistrate Judge advised

Petitioner that, as a foreign citizen, any statements he made at the hearing

“could be used against [him]” at any future immigration proceeding and that

he could have as much time as he needed to “meet privately with [his] lawyer”

at any point during the proceeding. Id. at 4. Petitioner orally consented to the

Magistrate Judge conducting the plea colloquy and acknowledged that he

signed a consent form saying as much. Id. at 5. The Magistrate Judge

questioned Petitioner about his schooling and education, and Petitioner

responded that he had attended college in Jamaica. Id. at 6. Additionally, the

Magistrate Judge asked Petitioner to confirm that he could “read, write, and

understand English” and was not “currently under the influence of any drugs,

alcohol, or other intoxicants,” including medications. Id. Petitioner so

confirmed. Id.

Petitioner testified that he did not presently suffer from mental or

emotional illness, nor had he in the past, he was not presently receiving

medical or mental health care, and he was not taking prescribed medications.

Id. at 6–7. He said he understood where he was, what he was doing, “and the

importance of th[e] proceeding.” Id. at 7. His attorney had no concerns about

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his competency to enter a guilty plea, stating, “Through my consultations with

[Petitioner], I’ve found him to be lucid and competent.” Id.

The Magistrate Judge explained to Petitioner that he had the right to

plead not guilty and that, by entering a guilty plea, he was giving up his right

to a jury trial at which he could confront and cross-examine the Government’s

witnesses and present a defense. Id. at 8–10. Petitioner acknowledged that his

attorney explained to him the consequences of entering a guilty plea and “any

defenses that may [have been] available to [him].” Id. at 9, 10. The Magistrate

Judge further explained other rights Petitioner was waiving by entering a

guilty plea: the right to challenge the Government’s evidence; the right to

appeal rulings of the Court; and his rights to vote, hold public office, serve on

a jury, or own or possess a gun. Id. at 10–11. Petitioner said he understood “all

the rights that [he has] and the rights that [he was] waiv[ing] and giv[ing] up

by pleading guilty.” Id. at 11. Petitioner further testified that he understood

the nature of the charge against him:

THE COURT: And did you receive a copy of the indictment

which sets out the charge against you?

[PETITIONER]: Yes, Your Honor.

THE COURT: And has the charge been read and explained to

you by your attorney?

[PETITIONER]: Yes, Your Honor.

THE COURT: And have you discussed the charge and the case

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in general with your attorney?

[PETITIONER]: Yes, Your Honor.

THE COURT: Now, you’re charged with conspiracy to commit

wire fraud, in violation of 18, U.S. Code, Section 1349.

Do you fully understand the charge contained in the indictment?

[PETITIONER]: Yes, Your Honor.

THE COURT: Do you have any questions about the charge?

[PETITIONER]: No, Your Honor.

THE COURT: Now, the necessary elements the government

must prove beyond a reasonable doubt in order for you to be

convicted on this charge are as follows: First, that two or more

persons in some way or manner agreed to try to accomplish a

common and unlawful plan to commit wire fraud, as charged in the

indictment; and, second, that you knew the unlawful purpose of

the plan and willfully joined in it.

So do you understand the elements of the charge which the

government would have to prove beyond a reasonable doubt for you

to be convicted?

[PETITIONER]: Yes, Your Honor.

THE COURT: Do you have any questions about the elements?

[PETITIONER]: No, Your Honor.

Id. at 13–14. Petitioner said that he understood the maximum penalties he

could face on the charge to which he was pleading guilty. Id. at 15. Petitioner

had no questions about anything the Magistrate Judge explained to him, and

he acknowledged that he “fully discussed all the[] matters with [his] attorney.”

Id. He then formally entered a plea of guilty:

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THE COURT: And how do you plead, guilty or not guilty, to

Count One of the indictment?

[PETITIONER]: Guilty.

THE COURT: And are you pleading guilty because you are

guilty?

[PETITIONER]: Yes, Your Honor.

THE COURT: And do you now admit that you committed the

acts set forth in the charge?

[PETITIONER]: Yes, Your Honor.

THE COURT: And do you understand that a plea of guilty

admits the truth of the charge against you?

[PETITIONER]: Yes, Your Honor.

THE COURT: And is your plea entered with an understanding

of what you’re doing here today?

[PETITIONER]: Yes, Your Honor.

Id. at 15–16. The Government proffered the facts supporting the charge as

follows:

Darryl Cleon Forbes, during the course of this conspiracy,

was a Jamaican citizen residing in Jamaica. From early 2015 until

December 2017, Mr. Forbes and others operated a fraudulent

sweepstakes scheme in Jamaica and in the Middle District of

Florida and elsewhere.

Mr. Forbes and his co-conspirators falsely informed victims

in the United States that they had won a prize in a sweepstakes

and had to send money to specified bank accounts to pay various

fees and taxes necessary to retrieve their prize.

Conspirators, posing as United States government officials,

falsely informed victims that they had won a prize in a

sweepstakes and had to send money to specified accounts to pay

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various fees and taxes necessary to retrieve their prize. The

conspirators also received victim funds from the Middle District of

Florida by making and directing ATM transactions in Jamaica and

elsewhere.

The defendant and his co-conspirators targeted victims who

were residents of the United States and, using aliases, falsely

informed those victims by telephone that they had won a prize in

a sweepstakes contest. The defendant and his co-conspirators then

falsely told their victims that in order to receive their prize, the

victims had to send money via Western Union or MoneyGram wire

transfers, bank wire transfers, and other methods to

representatives in the United States to prepay fees and taxes on

the prize.

The defendant and his co-conspirators further induced the

victims to send money by falsely representing that they were

representatives of a United States government agency, such as the

Federal Bureau of Investigation or the Department of Treasury,

charged with verifying sweepstakes prizes, verifying the fees and

taxes, and ensuring the sweepstakes winners would receive their

purported prize money.

When a victim agreed to send money, the defendant and his

co-conspirators instructed the victim to send a wire transfer or a

check to the designated co-conspirator or to deposit money in a

predesignated bank account set up by the co-conspirators to

receive and distribute the fraudulently solicited funds.

The defendant and his co-conspirators also recruited United

States residents to open bank accounts in the United States to be

used for the deposit and transfer of fraudulently obtained funds.

To facilitate the scheme, the defendant and his co-

conspirators obtained personal identifying information of victims.

The defendant and his co-conspirators then transferred or directed

others to transfer victim funds to co-conspirators in Jamaica and

elsewhere for the purpose of making ATM withdrawals.

The defendant and his co-conspirators also instructed

scheme participants to withdraw money from illicit accounts and

give the funds directly to co-conspirators in Jamaica and

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elsewhere.

After the defendant and his co-conspirators had successfully

induced a victim to send money, the defendant and his co-

conspirators telephoned the victim repeatedly to “reload” him or

her, that is, to make further false and fraudulent

misrepresentations in an effort to induce the victim to send more

money by wire or bank transfer.

Such false and fraudulent misrepresentations included, but

were not limited to, statements that the victim had to send

additional fees and taxes to ensure the safe delivery of the prize.

This practice would continue as long as the victim continued to

send money.

No victim of the conspiracy ever received a promised prize.

The defendant and his co-conspirators kept all victim funds for

their own personal benefit. The loss to the victims of this scheme

is between 2.5 and 3.5 million dollars.

Id. at 16–19. At the conclusion of the factual proffer, the Court asked

Petitioner, “And is that what you did”? Id. at 19. Petitioner replied, “Yes, Your

Honor.” Id. Petitioner “admit[ted] the truth of the factual basis and that all of

the elements thereof [were] true and correct” as pertained to him. Id.

THE COURT: I’m going to ask you the personalization of

elements.

Beginning in or about early 2015 and continuing to in or about

December 2017, did you and at least one other person, in some way

or manner, agree to try to accomplish a common and unlawful plan

to commit wire fraud?

[PETITIONER]: Yes, Your, Honor.

THE COURT: And did you know the unlawful purpose of the

plan and willfully join in it?

[PETITIONER]: Yes, Your, Honor.

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THE COURT: I find a factual basis for the plea.

Is your plea free and voluntary?

[PETITIONER]: Yes, Your Honor.

Id. at 19–20. Petitioner agreed that he had not been threatened, forced,

coerced, or intimidated into entering his plea, and he was “satisfied” with his

attorney, with whom he had “had enough time to talk . . . about [the] case.” Id.

at 20–21.

The Magistrate Judge found that Petitioner was “alert and intelligent,”

understood the charge against him and the possible penalties, and

“appreciate[d] the consequences of pleading guilty.” Id. at 23. Further, the

judge found the Government’s proffer satisfied “all of the essential elements of

the crime to which [Petitioner] . . . pleaded.” Id. Finally, the judge found that

Petitioner’s decision to enter a guilty plea was “freely, voluntarily, knowingly,

and intelligently made and that [he] had the advice and counsel of a competent

lawyer with whom [he was] satisfied.” Id. Petitioner agreed with the

Magistrate Judge’s findings. Id.

In the written Report and Recommendation, the Magistrate Judge

recommended that the undersigned accept Petitioner’s guilty plea, adjudicate

Petitioner guilty, and sentence him. See Crim. Doc. 41. Noting that Petitioner

waived the fourteen-day objection period, the undersigned adopted the

Magistrate Judge’s Report and Recommendation and adjudicated Petitioner

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guilty as charged. See Crim. Doc. 43.

Petitioner’s sentencing hearing was convened on August 17, 2020. See

Crim. Doc. 64 (minute entry). The Court sentenced Petitioner to sixty-six

months in prison followed by three years of supervised release and granted the

Government’s motion that Petitioner forfeit $2.5 million in proceeds he

fraudulently obtained. Crim Docs. 64, 65, 66. Petitioner did not seek an appeal,

so, on September 10, 2020, the Court sua sponte ordered Petitioner to file a

“written declaration that the decision not to file a notice of appeal was his

informed and voluntary choice,” or, if not, to so advise the Court in a written

statement. Crim. Doc. 72. Petitioner did not respond to the Order. As was

explained in the Order, Petitioner’s failure to respond was “deemed by the

Court to be an acknowledgment by [him] that the decision not to pursue an

appeal was his informed and voluntary choice.” Id.

III. STANDARD OF REVIEW

Under Title 28, United States Code, § 2255, a person in federal custody

may move to vacate, set aside, or correct his sentence on one of four grounds:

(1) the sentence was imposed in violation of the Constitution or laws of the

United States; (2) the court lacked jurisdiction to impose the sentence; (3) the

imposed sentence exceeded the maximum authorized by law; or (4) the imposed

sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Only

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jurisdictional claims, constitutional claims, and claims of error that are so

fundamentally defective as to cause a complete miscarriage of justice will

warrant relief through collateral attack. United States v. Addonizio, 442 U.S.

178, 184–86 (1979). The movant “bears the burden to prove the claims in his §

2255 motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015).

See also Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017).

“It is well settled that a voluntary and intelligent plea of guilty made by

an accused person, who has been advised by competent counsel, may not be

collaterally attacked.” Bousley v. United States, 523 U.S. 614, 621 (1998)

(quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)). A petitioner may

collaterally challenge “the voluntariness and intelligence of a guilty plea” but

only if he first advanced such an argument on direct appeal. Id. “Habeas review

is an extraordinary remedy and ‘will not be allowed to do service for an

appeal.’” Id. (quoting Reed v. Farley, 512 U.S. 339, 354 (1994)).

“[A] defendant generally must advance an available challenge to a

criminal conviction or sentence on direct appeal or else the defendant is barred

from presenting that claim in a § 2255 proceeding.” Lynn v. United States, 365

F.3d 1225, 1234–35 (11th Cir. 2004). “This rule generally applies to all claims,

including constitutional claims.” Id. However, the Supreme Court has held

that the procedural default rule does not apply to ineffective assistance of

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counsel claims. See Massaro v. United States, 538 U.S. 500, 504 (2003) (“[A]n

ineffective-assistance-of-counsel claim may be brought in a collateral

proceeding under § 2255, whether or not the petitioner could have raised the

claim on direct appeal.”).

To avoid a procedural bar, a petitioner “must show cause for not raising

the claim of error on direct appeal and actual prejudice from the alleged error,”

or he must demonstrate he “is actually innocent.” Id. (citing Bousley, 523 U.S.

at 622). The ineffective assistance of counsel may satisfy the “cause” prong of

the first exception, but the claim must be a valid one. Fortenberry v. Haley, 297

F.3d 1213, 1222 (11th Cir. 2002) (“A petitioner can establish cause by showing

that a procedural default was caused by constitutionally ineffective assistance

of counsel . . . .”). Under the second exception—actual innocence—a petitioner

must demonstrate his factual innocence and “show that it is more likely than

not that no reasonable juror would have convicted him.” Id. (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)).

The United States Constitution provides criminal defendants the right

to the effective assistance of counsel. See U.S. Const., amend. VI. As such, a

claim that a criminal defendant has received the ineffective assistance of

counsel in violation of the Sixth Amendment may properly be brought in a

collateral proceeding under § 2255. Massaro, 538 U.S. at 504. To establish the

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ineffective assistance of counsel, a petitioner must satisfy two prongs: (1) that

his counsel’s conduct amounted to constitutionally deficient performance; and

(2) that counsel’s deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Martin v. United States, 949 F.3d 662,

667 (11th Cir. 2020).

In assessing the “performance” prong, courts adhere to the standard of

reasonably effective assistance. Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir.

1994) (citing Strickland,466 U.S. at 688). Under this standard, a review of

counsel’s performance is highly deferential. Chandler v. United States, 218

F.3d 1305, 1314 (11th Cir. 2000).

The test has nothing to do with what the best lawyers would have

done. Nor is the test even what most good lawyers would have

done. We ask only whether some reasonable lawyer at the trial

could have acted, in the circumstances, as defense counsel acted at

trial…. We are not interested in grading lawyers’ performances;

we are interested in whether the adversarial process at trial, in

fact, worked adequately.

Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (quoting White v.

Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992)). To establish his attorney

was deficient under the highly deferential Strickland standard, a petitioner

must show that, given all the circumstances, counsel’s performance fell

“outside the wide range of professionally competent assistance.” Scott v. United

14

States, 890 F.3d 1239, 1258 (11th Cir. 2018) (quoting Payne v. Allen, 539 F.3d

1297, 1315 (11th Cir. 2008)).

To satisfy the “prejudice” prong, a petitioner must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would have

been different. Martin, 949 F.3d at 667 (citing Padilla v. Kentucky, 559 U.S.

356, 366 (2010)). A reasonable probability is one sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694. “It is not enough for

the [petitioner] to show that the error had some conceivable effect on the

outcome of the proceeding.” United States v. Phillips, 853 F. App’x at 626

(citing Strickland, 466 U.S. at 693)).

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland, “If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.” 466 U.S. at 697.

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The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). The petitioner must still show that counsel’s performance was

deficient. See id. at 56–59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must

show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill,

474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

IV. DISCUSSION

Petitioner’s Motion is not a model of clarity. He conflates multiple claims

in a single ground for relief, asserting as follows: “Petitioner entered an

involuntary plea of guilty after his attorney affirmatively misrepresented to

him the law and jurisdiction in the U.S. District Court was absent.” See Pet.

Mot. at 3. Construing his Motion as a whole, the Court understands Petitioner

to be challenging (1) the voluntariness of his plea, (2) his attorney’s

representation of him in connection with his plea, (3) the district court’s subject

matter jurisdiction, and (4) the sufficiency of the Indictment.

Petitioner’s overarching complaint is that his attorney was ineffective for

failing to object to the Indictment. First, he contends the “district court [was]

without jurisdiction to accept [his] guilty plea [because] the Indictment

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charged a non-offense.” Id. at 4 (capitalization omitted). Petitioner explains

that the Indictment charged him with “conspiracy to attempt” to commit wire

fraud, which is an “illogical and nonexistent” crime. Id. at 4–5 (citing United

States v. Tomeny, 144 F.3d 749 (11th Cir. 1998); United States v. Meacham,

626 F.2d 503 (5th Cir. 1980)).4 Petitioner complains that his attorney’s “failure

to object to this jurisdictional defect deprived [him] of his right to effective

assistance of counsel.” Id. at 5. He claims that had he known the Indictment

charged him with a non-offense, he would have insisted on proceeding to trial.

Id. at 6.

Next, Petitioner argues his attorney was ineffective for improperly

advising him that § 1349 could be applied extraterritorially. Id. at 7–8. He

explains that all acts by him occurred outside the United States, and § 1349

“makes absolutely no mention of its reach to conduct occurring abroad.” Id. at

7. Petitioner maintains that had his attorney “objected to the extraterritorial

application of [§] 1349 . . . the Court would have sustained [the] objection and

dismissed the [I]ndictment.” Id.

The Government construes Petitioner’s argument as raising two claims:

that his counsel was ineffective; and that his plea was involuntary. See Gov’t

4 In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981), the

Eleventh Circuit adopted as binding precedent decisions of the former Fifth Circuit

rendered prior to October 1, 1981.

17

Resp. at 7, 10. The Government construes the ineffective assistance of counsel

claim to be related to counsel’s pre-plea advice or conduct and argues the claim

is procedurally barred because Petitioner pled guilty. Id. at 10. Additionally,

the Government argues the claim that Petitioner’s plea was involuntary lacks

merit or was procedurally defaulted because Petitioner did not appeal his

conviction. Id. at 9–10. Petitioner does not counter the Government’s

arguments. Indeed, he opted not to file a Reply.

The Court construes Petitioner’s ineffectiveness claim to be one

connected to Petitioner’s decision to plead guilty, see Pet. Mot. at 3–5, which

would not be procedurally defaulted for Petitioner’s failure to appeal, see

Massaro, 538 U.S. at 504. Cf. Wilson v. United States, 962 F.2d 996, 997 (11th

Cir. 1992) (holding the district court did not err in dismissing the petitioner’s

ineffective assistance claim because the petitioner’s guilty plea was voluntary

and knowing and his ineffectiveness claim was “not about his decision to plead

guilty”). Regardless of whether Petitioner’s ineffectiveness claim is related to

his decision to plead guilty, it is without merit.

A. Ineffective Assistance of Counsel

As noted, the gravamen of Petitioner’s Motion is that he was charged

with a non-offense and charged under a statute that has no extraterritorial

application—facts he did not know when he entered his guilty plea because his

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attorney allegedly rendered the ineffective assistance of counsel by failing to

object or properly advise him. See Pet. Mot. at 4, 6. Whether his attorney was

ineffective for not objecting to the Indictment depends first on whether

Petitioner is correct that the Indictment was deficient so as to deprive the

Court of subject matter jurisdiction. He is not.

i. Subject Matter Jurisdiction

With respect to Petitioner’s assertion that he was charged with a non-

offense, he relies heavily on Meacham, see Pet. Mot. at 4–5, which held the

defendant’s guilty plea did not bar him from challenging his conviction on

appeal because the indictment did not charge him with an offense, see

Meacham, 626 F.2d at 510. The court ruled, “The objection that an indictment

fails to charge an offense is not waived by a guilty plea.” Id. See also Tomeny,

144 F.3d at 751 (“[A] claim that the indictment failed to charge an offense is a

jurisdictional claim not waived by the entry of a guilty plea.”).

The indictment in Meacham was deficient because the government

interpreted the statutes relating to controlled substances incorrectly, which

resulted in the defendants being charged with a non-offense. 626 F.2d at 508.

The court explained that, based on the evidence, the defendants could have

properly been charged under the statutes as written, but instead, the

government charged them with “something new”: “[T]he government

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successfully could have prosecuted the appellants on charges of conspiring to

import, of conspiring to possess with intent to distribute, of attempting to

import[,] or of attempting to possess with intent to distribute. But the

government instead charged something new[:] conspiracy to attempt.” Id. at

507.

The holding in Meacham is exceedingly narrow, as explained by the

Eleventh Circuit: “the . . . indictment [in Meacham] contained affirmative

allegations of conduct that was not a crime against the laws of the United

States,” and therefore, did not invoke the court’s jurisdiction. See United States

v. Brown, 752 F.3d 1344, 1352 (11th Cir. 2014) (analyzing in detail the

difference between jurisdictional and non-jurisdictional defects in an

indictment). The central inquiry for determining if a district court has subject

matter jurisdiction over a criminal matter is “whether the indictment alleges

‘offenses against the laws of the United States.’” United States v. Moore, 954

F.3d 1322, 1333 (11th Cir. 2020). “The standard . . . is not demanding. An

indictment tracking the statutory language and stating approximately the

time and place of an alleged crime is sufficient.” Id. at 1332.

The Indictment in Petitioner’s case charged him under § 1349 with

conspiracy to commit the substantive offense prohibited under § 1343—wire

fraud. See Crim. Doc. 1. As such, he was charged with an offense against the

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laws of the United States. Section 1349 provides, “Any person who attempts or

conspires to commit any offense under this chapter shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the

object of the attempt or conspiracy.” Section 1343 sets out the substantive

offense Petitioner was charged with conspiring to commit. That section

provides as follows:

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of

false or fraudulent pretenses, representations, or promises,

transmits or causes to be transmitted by means of wire, radio, or

television communication in interstate or foreign commerce, any

writings, signs, signals, pictures, or sounds for the purpose of

executing such scheme or artifice, shall be fined under this title or

imprisoned not more than 20 years, or both.

18 U.S.C. § 1343.

Petitioner points to a single phrase in one paragraph of the Indictment

in support of his argument that he was charged with a non-offense. That

paragraph, which Petitioner partially quotes, provides in full as follows:

[Petitioner] did knowingly and willfully combine, conspire, and

agree with persons known and unknown . . . to knowingly and

willfully devise a scheme and artifice to defraud and to obtain

money and property by means of materially false and fraudulent

pretenses, representations, and promises, and for purposes of

executing and attempting to execute the scheme and artifice to

defraud, did knowingly and willfully transmit and cause to be

transmitted by means of wire in interstate and foreign commerce,

writing, signs, signals, pictures, and sounds, in violation of 18

U.S.C. § 1343.

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Crim. Doc. 1 at 2 (emphasis added). The emphasized language is that with

which Petitioner takes issue. He concludes that the inclusion of the phrase

“attempting to execute” can be “[f]airly read” as charging him with “conspiracy

to attempt to commit wire fraud,” which he says is not a crime. Pet. Mot. at 4

(internal quotation marks omitted).

Contrary to Petitioner’s strained reading of a single phrase out of

context, the Indictment did not charge him with a non-offense, as was the case

in Meacham. Instead, Petitioner was charged under a valid provision of the

United States Code—conspiracy to commit wire fraud—and the Indictment

tracked the pertinent statutory language, with citations to the relevant

statutory provisions, §§ 1343 and 1349. See Crim. Doc. 1 at 2, 5. Additionally,

the Indictment “contained affirmative allegations of conduct” that satisfied all

the elements of the charge. See Brown, 752 F.3d at 1352. For instance, it

explicitly detailed the “Manner and Means of the Conspiracy,” including the

times and places of the acts that violated the relevant statutory provisions. Id.

at 3–5. A complete reading of the seven-page Indictment leaves no doubt that

Petitioner was charged with conspiracy to commit wire fraud in violation of §§

1343 and 1349.

Even assuming arguendo that the Indictment had been “defective,” a

defect in an indictment does not strip a district court of subject matter

22

jurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an

indictment do not deprive a court of its power to adjudicate a case.). See also

Brown, 758 F.3d at 1354 (“So long as the indictment charges the defendant

with violating a valid federal statute as enacted in the United States Code, it

alleges an ‘offense against the laws of the United States’ and, thereby, invokes

the district court’s subject-matter jurisdiction.”). Here, the Indictment charged

Petitioner with an offense against the laws of the United States and “contained

affirmative allegations of conduct” that satisfied all the elements of the charge.

As such, the Court had subject matter jurisdiction to accept his plea. It follows

that Petitioner’s attorney could not have been deficient for not objecting to the

Indictment for the reason Petitioner now advances. Finding no deficient

performance by Petitioner’s counsel, the Court finds Petitioner’s

ineffectiveness claim to be without merit.

ii. Extraterritoriality

With respect to Petitioner’s assertion that § 1349 does not apply

extraterritorially, he asserts that, at all material times, he “resided outside the

United States,” and any “agreement” with his co-conspirators “occurred

exclusively outside the United States.” See Pet. Mot. at 6. He claims his

attorney’s advice that he could be charged under § 1349 even though he was

not present in the United States was “fatally flawed.” Id.

23

Unless a statute expressly provides that it applies to conduct outside the

United States, courts presume that the statute “is meant to apply only within

the territorial jurisdiction of the United States.” See United States v. Rolle, 65

F.4th 1273, 1276 (11th Cir. 2023) (quoting United States v. Belfast, 611 F.3d

783, 811 (11th Cir. 2010)). However, the Supreme Court has “held that the

presumption against extraterritoriality does not apply ‘to criminal statutes

which are, as a class, not logically dependent on their locality for the

government’s jurisdiction, but are enacted because of the right of the

government to defend itself against obstruction, or fraud wherever perpetrated

....’” Id. (quoting United States v. Bowman, 260 U.S. 94, 98 (1922)). In

accordance with the Supreme Court’s decision in Bowman, the Eleventh

Circuit has “long recognized . . . the rule that Congress need not expressly

provide for extraterritorial application of a criminal statute if the nature of the

offense is such that it may be inferred.” Id. (citing cases).

The Eleventh Circuit has not decided whether § 1349 applies

extraterritorially, but rulings from other cases refute Petitioner’s argument

that he cannot have been criminally charged in the United States because he

took no overt act himself in the country. See United States v. Inco Bank & Tr.

Corp., 845 F.2d 919, 920 (11th Cir. 1988). For instance, the Eleventh Circuit

has held, “It is well settled that the government has the power to prosecute

24

every member of a conspiracy that takes place in United States territory, even

those conspirators who never entered the United States.” Id. See also United

States v. Plummer, 221 F.3d 1298, 1304–05 (11th Cir. 2000) (“On authority of

Bowman, courts in this Circuit and elsewhere have routinely inferred

congressional intent to provide for extraterritorial jurisdiction over foreign

offenses that cause domestic harm.”); United States v. MacAllister, 160 F.3d

1304, 1308 (11th Cir. 1998) (“The objective territorial principle applies where

the defendant’s actions either produced some effect in the United States, or

where he was part of a conspiracy in which any conspirator’s overt acts were

committed within the United States’ territory.”).

Petitioner was charged under § 1349 with conspiracy to commit the

underlying substantive offense of wire fraud pursuant to § 1343. By its very

terms, “the wire fraud statute punishes frauds executed ‘in interstate or

foreign commerce,’ so [it] is surely not a statute in which Congress had only

‘domestic concerns in mind.’” Pasquantino v. United States, 544 U.S. 349, 371–

72 (2005) (internal citation omitted) (quoting first 18 U.S.C. § 1343 and then

Small v. United States, 544 U.S. 385, 388 (2005)). “[E]xtraterritorial

jurisdiction over a conspiracy charge exists whenever the underlying

substantive crime applies to extraterritorial conduct.” United States v. Belfast,

611 F.3d 783, 813 (11th Cir. 2010). In an unpublished opinion, the Eleventh

25

Circuit held that the petitioner’s case “involved a permissible domestic

application” of the wire fraud statute, § 1343, even if some of the conduct

occurred abroad, because the statute criminalizes the act of “transmitting.”

Skillern v. United States, No. 20-13380-H, 2021 WL 3047004, at *8 (11th Cir.

Apr. 16, 2021).

Here, as the Indictment described, the charge against Petitioner was

based on conduct that occurred and injuries sustained within the United

States, even though he lived and orchestrated the scheme from abroad. See

generally Crim. Doc. 1. The Indictment alleged that interstate wires were used

to defraud victims in the United States. The Indictment provided in relevant

part:

1. Defendant Darryl Cleon Forbes, a Jamaican citizen residing

in Jamaica and elsewhere, together with his co-conspirators,

operated a fraudulent sweepstakes scheme in Jamaica, the Middle

District of Florida and elsewhere. Forbes and his co-conspirators[]

falsely informed victims in the United States that they had won a

prize in a sweepstakes and had to send money to specified accounts

to pay various fees and taxes necessary to retrieve their prize.

Forbes also received from the Middle District of Florida victim

funds by making and directing ATM transactions in Jamaica and

elsewhere.

. . . .

[5.]a. Beginning in early 2015, the defendant[] and [his] co-

conspirators operated a fraudulent sweepstakes scheme in

Jamaica, the Middle District of Florida, and elsewhere;

26

b. The defendant and his co-conspirators would target victims

who were residents of the United States and, using aliases, would

falsely inform those victims by telephone that they had won a prize

in a sweepstakes contest. The defendant and his co-conspirators

would then falsely tell their victims that in order to receive their

prize, the victims had to send money via Western Union or

MoneyGram wire transfers, bank wire transfers, and other

methods to “representatives” in the United States to prepay fees

and taxes on the prize;

. . . .

d. If a victim agreed to send money, the defendant and his co-

conspirators would instruct the victim to send a wire transfer or

check to a designated co-conspirator, or deposit money in a

predesignated bank account set up by co-conspirators to receive

and distribute the fraudulently solicited funds;

e. The defendant and his co-conspirators recruited United

States residents to open bank accounts in the United States to be

used for the deposition and transfer of fraudulently obtained

funds;

. . . .

g. The defendant and his co-conspirators would transfer or

direct others to transfer victim funds to co-conspirators in Jamaica

and elsewhere for the purpose of making ATM withdrawals;

. . . .

Id. at 1, 3–5.

At Petitioner’s sentencing hearing, the Court heard argument on

Petitioner’s objection to the presentence investigation report, during which

facts supporting each element of the crime charged were again put on the

record. See Crim. Doc. 79 at 6. At the hearing, the Government proffered the

testimony of the case agent, Robert Schwinger, who testified that the

27

investigation of Petitioner’s and his co-conspirators’ scheme uncovered “well

over a hundred victims” in the United States with a total loss of at least $2.5

million. Id. at 12, 21–22. According to Agent Schwinger, Petitioner “was at the

center of the operation that recruited people in [the U.S.] to open bank

accounts.” Id. at 23. Petitioner also coordinated deposits into the various bank

accounts, alerted his co-conspirators to accounts that were “hot” (compromised)

or should no longer be used, and directed others when and where to withdraw

certain amounts of cash at various ATMs around Montego Bay, Jamaica. Id.

at 25–27. The investigation revealed that all the money taken from the

numerous victims “was going back to [Petitioner] or his close associates.” Id.

at 27. Because Petitioner properly was charged under §§ 1343 and 1349 for a

conspiracy that had domestic harm, even though he allegedly never entered

the United States, his attorney cannot have been ineffective for not objecting

to the Indictment based on extraterritoriality concerns.

For the reasons stated, Petitioner’s ineffective assistance of counsel

claims lack merit.

B. Procedural Default

To the extent Petitioner seeks to assert any other claims—such as a

stand-alone claim that the Indictment was defective or insufficient, or that his

plea was unknowing and involuntary—those claims are procedurally defaulted

28

for his failure to directly appeal his conviction and sentence. As noted,

Petitioner did not file a Reply, so he does not directly rebut the Government’s

procedural default argument. However, affording Petitioner the benefit of

liberal construction, he appears to invoke the “cause and prejudice” exception

to the procedural default rule by claiming that he did not appeal because

“counsel did not consult [with him] regarding appealing, and [he] did not have

the wherewithal to initiate or prosecute an appeal on his own.” See Pet. Mot.

at 2.

A petitioner may demonstrate “cause” under the procedural default rule

if he demonstrates his failure was attributable to the ineffective assistance of

counsel, but the ineffective assistance claim “must have merit.” United States

v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000). Petitioner’s vague and

conclusory ineffective assistance of counsel claim lacks merit. He does not

assert that he asked his attorney to file an appeal, or that he indicated to his

attorney an interest in appealing, but his attorney failed to represent him. See

Thompson v. United States, 504 F.3d 1203, 1206 (11th Cir. 2007) (“[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.”).

29

The plea transcript suggests Petitioner’s attorney consulted with him

about his rights, including the right to appeal. In conducting the plea colloquy,

the Magistrate Judge confirmed that Petitioner entered his plea with the

assistance of counsel, with whom he was satisfied. See Crim. Doc. 78 at 21. The

Magistrate Judge asked Petitioner if he had “had enough time to talk with [his

attorney]” and was “satisfied with [his] lawyer.” Id. Petitioner replied, “Yes,

Your Honor.” Id. Additionally, the Magistrate Judge asked Petitioner’s

attorney the following: “[A]re you satisfied that your client knows what he’s

charged with, that you’ve had sufficient time to counsel with him, and that he

is pleading guilty freely and voluntarily, with full knowledge of the

consequences of his plea?” Id. at 23. Counsel responded, “Yes, Your Honor.” Id.

Assuming Petitioner’s attorney did not consult with him about his right

or desire to appeal, as Petitioner asserts, any such oversight could not have

prejudiced him because, at his sentencing hearing, the Court advised

Petitioner he had “the right to appeal from the judgment and sentence . . .

within 14 days from the entry of the judgment,” and his failure to do so would

“be treated as a waiver of [the] right to appeal.” See Crim. Doc. 79 at 80. See

also Crim. Doc. 64 at 1. The Court further advised him that “if [he could] not

afford an attorney for purposes of taking an appeal, one [would] be appointed

for [him].” See Crim. Doc. 79 at 80.

30

After his fourteen-day period in which to appeal had elapsed with no

notice of appeal being filed, the Court issued an Order directing Petitioner to

file “a written declaration [stating] that the decision not to file a notice of

appeal was his informed and voluntary choice,” and advising him that his

failure to do so would “be deemed . . . to be an acknowledgment by [him] that

the decision not to pursue an appeal was his informed and voluntary choice.”

See Order (Doc. 72). A Deputy United States Marshal personally delivered a

copy of the Order to Petitioner at the Baker County Detention Center. See

Return of Service (Doc. 73) at 3. Petitioner did not file a written declaration in

response to this Order. As such, his failure was deemed “an acknowledgment

by [him] that the decision not to pursue an appeal was his informed and

voluntary choice,” not the result of the ineffective assistance of counsel. See

Order (Doc. 72). In other words, Petitioner does not show that “but for counsel’s

[alleged] deficient conduct, he would have appealed.” See Roe v. Flores-Ortega,

528 U.S. 470 (2000). In light of the above, the Court finds Petitioner’s

ineffective assistance claim insufficient to excuse his procedural default.

Petitioner does not advance an actual innocence argument, see generally

Pet. Mot., and his statements made under oath at the plea hearing

demonstrate he was not wrongly accused of the crime to which he pled guilty.

See Sawyer v. Whitely, 505 U.S. 333, 340 (1992) (“A prototypical example of

31

‘actual innocence’ in a colloquial sense is the case where the [government] has

convicted the wrong person of the crime.”). Petitioner admitted having engaged

in the conduct with which he was charged, as summarized by the Government

during the factual proffer and by the Magistrate Judge in accepting his plea.

See Crim. Doc. 78 at 15–20. He does not offer or point to any “new reliable

evidence” showing it “is more likely than not that no reasonable juror would

have found [him] guilty beyond a reasonable doubt.” See Schlup, 513 U.S at

324, 327, 329. Thus, insofar as Petitioner seeks to assert any other claims—

such as a stand-alone claim that the Indictment was defective or insufficient,

or that his plea was unknowing and involuntary—those claims are

procedurally defaulted.

C. Voluntariness of Plea

Finally, even if Petitioner had not procedurally defaulted any non-

jurisdictional claims, he waived them by pleading guilty, see United States v.

Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (“A guilty plea, since it admits

all the elements of a formal criminal charge, waives all nonjurisdictional

defects in the proceedings against a defendant.”), or they are otherwise

meritless. Petitioner’s claim challenging the Indictment lacks merit for the

reasons previously stated, and a claim challenging the voluntariness of the

plea lacks merit for the following reasons.

32

To the extent Petitioner’s involuntariness argument is grounded in the

premise that his attorney did not advise him of purported defects in the

Indictment, his claim is baseless because the underlying premise is baseless,

as previously addressed. Regardless, as demonstrated by the exhaustive plea

colloquy the Magistrate Judge undertook in accordance with Rule 11,

Petitioner entered a knowing and voluntary plea. See Crim. Doc. 41. See also

generally Crim. Doc. 78. At the plea hearing, Petitioner was represented by

counsel and demonstrated he was educated; could read, write, and understand

English; was not under the influence of intoxicants or medications; did not

suffer from mental illness; and understood the nature of the charge and the

proceeding. See Crim. Doc. 78 at 6–7, 13–15. Petitioner also stated that he

understood the rights he was waiving by pleading guilty. Id. at 8–11. Petitioner

agreed that he understood “the maximum penalties [he] face[d] on the charge,”

including that property was subject to forfeiture and that he could be required

to “make restitution to any victims.” Id. at 14–15.

The Magistrate Judge reviewed the factual basis for the plea by proffer

by the Government, and then asked Petitioner if he engaged in the conduct

described. Id. at 16–19. Petitioner answered, “Yes, Your Honor.” Id. at 19. The

Magistrate Judge directly asked Petitioner whether he engaged in conduct

satisfying the essential elements of the crime: (1) “Beginning in or about early

33

2015 and continuing to in or about December 2017, did you and at least one

other person, in some way or manner, agree to try to accomplish a common and

unlawful plan to commit wire fraud?”; and (2) “[D]id you know the unlawful

purpose of the plan and willfully join in it?” Id. at 19–20. Petitioner responded

affirmatively to both questions. Id. at 20. Accordingly, the Magistrate Judge

found “a factual basis for the plea,” and asked Petitioner if he entered it freely

and voluntarily, without having been threatened, forced, coerced, or

intimidated. Id. Petitioner agreed his plea was free and voluntary and not the

result of threats, force, coercion, or intimidation. Id.

At the conclusion of the plea colloquy, the Magistrate Judge made the

following findings:

I find that you are now alert and intelligent, that you

understand the nature of the charge against you and the possible

penalties, and you appreciate the consequences of pleading guilty.

I also find the facts which the government is prepared to prove and

which by your plea of guilty you admit state all of the essential

elements of the crime to which you have pleaded guilty. I further

find that your decision to plead guilty is freely, voluntarily,

knowingly, and intelligently made and that you’ve had the advice

and counsel of a competent lawyer with whom you say you are

satisfied.

Id. at 23. The judge asked Petitioner if he agreed with these findings, and

Petitioner responded, “Yes, Your Honor.” Id.

Petitioner’s plea colloquy satisfied the requirements of Rule 11, and

Petitioner’s admission that he entered his plea freely and voluntarily is

34

presumed to be true. A defendant’s “representations [at a plea hearing,]. . . as

well as any findings made by the judge accepting [a guilty] plea, constitute a

formidable barrier in any subsequent collateral proceedings. Solemn

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 (11th Cir. 1994) (“There is a strong presumption that the statements made

during [a plea] colloquy are true.”). Accordingly, the Court finds Petitioner’s

claim that he entered an involuntary guilty plea to be without merit.

V. CONCLUSION

Finding Petitioner advances no argument warranting relief under 28

U.S.C. § 2255, it is hereby ORDERED:

1. Petitioner’s Motion (Civ. Doc. 1, Crim. Doc. 77) is DENIED, and

this action is DISMISSED WITH PREJUDICE.

2. The Clerk is directed to enter judgment denying the Motion and

dismissing the action with prejudice, terminate any pending motions as moot,

and close the file.

3. If Petitioner appeals this Order, the Court denies a certificate

of appealability.5 Because this Court has determined that a certificate of

5 This Court should issue a certificate of appealability only if a petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

35

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 25th day of

February 2025.

4 YQ:

fo {ton | LE O14

BRIAN/J . DAVIS

United States District Judge

Jax-6

C:

Darryl Cleon Forbes

Counsel of Record

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537

U.S. 322, 335-86 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Upon due consideration, this Court will deny a certificate of appealability.

36