Donovan G. Davis, Jr. v. United States

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 1 of 35

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12420

Non-Argument Calendar

____________________

DONOVAN G. DAVIS, JR.,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket Nos. 6:20-cv-01037-CEM-DCI,

6:14-cr-00043-CEM-DCI-2

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 2 of 35

2 Opinion of the Court 23-12420

____________________

Before ROSENBAUM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

Donovan G. Davis, Jr., a federal prisoner proceeding with

counsel on appeal, appeals the district court’s denial of his motion

to vacate his sentence under 28 U.S.C. § 2255. A judge of this Court

granted a certificate of appealability (“COA”) on whether the dis-

trict court erred in rejecting, without an evidentiary hearing, Da-

vis’s claims that (a) his trial counsel provided ineffective assistance

by failing to assert a statute-of-limitations defense, (b) his non-ap-

pearing attorney’s out-of-court participation in his underlying

criminal proceedings created a conflict of interest, and (c) his coun-

sel provided ineffective assistance by waiving his rights under Kas-

tigar v. United States, 406 U.S. 441 (1972). A COA was also granted

on whether the court erred in rejecting Davis’s claim that the court

lacked subject-matter jurisdiction over his prosecution. Finally,

Davis challenges the district judge’s refusal to recuse from the

§ 2255 proceeding.

I. BACKGROUND

On February 26, 2014, a federal grand jury indicted Davis for

participating in a conspiracy to defraud through Capital Blu Man-

agement, LLC, a company that traded in the off-exchange foreign

currency or “forex” marketplace. According to the indictment, Da-

vis and his Capital Blu partners, Blayne Davis (“Blayne”) and Da-

mien Bromfield (“Bromfield”), solicited and retained investors

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 3 of 35

23-12420 Opinion of the Court 3

with lies about Capital Blu’s consistently positive rates of return,

among other false information, at the same time Capital Blu was

experiencing massive trading losses and the partners were divert-

ing investor funds for personal use. The alleged conspiracy lasted

from January 2008 through September 15, 2008, when Capital Blu

was shut down. Bromfield (charged by separate indictment) and

Blayne pled guilty and cooperated with the government. Davis

pled not guilty and proceeded to trial.

Following a nine-day trial in May 2015, a jury found Davis

guilty of one count of conspiracy to commit mail and wire fraud,

six counts of wire fraud, one count of mail fraud, and eight counts

of money laundering. At trial, Davis was represented by attorneys

Andrew Chmelir and Jonathan Rose. Bromfield testified for the

government, describing the formation of Capital Blu, Davis’s role

in the company, and the company’s losses and misreporting.

The district court sentenced Davis to a total of 204 months

of imprisonment. It then denied Davis’s motion for a new trial as-

serting newly discovered evidence relating to Bromfield’s alleged

perjury at trial. On appeal, we affirmed Davis’s convictions and

sentence and the denial of his motions for a new trial. See United

States v. Davis (Davis I), 767 F. App’x 714 (11th Cir. 2019); see also

United States v. Davis (Davis II), 836 F. App’x 754 (11th Cir. 2020)

(affirming the denial of a second motion for new trial).

A. Davis’s § 2255 Claims

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 4 of 35

4 Opinion of the Court 23-12420

In June 2020, Davis filed a pro se motion to vacate his sen-

tence under 28 U.S.C. § 2255, raising numerous claims for relief.

Four claims are relevant to this appeal.

First, in “Claim 1.1,” Davis alleged that trial counsel pro-

vided ineffective assistance by failing to raise the five-year statute

of limitations as a defense to the February 26, 2014, indictment,

since the underlying conduct had concluded by September 2008.

Second, in “Claim 1.2,” Davis alleged that trial counsel pro-

vided ineffective assistance by causing him to waive Kastigar pro-

tections granted by a prior proffer agreement. Davis explained

that, in October 2008, he entered into a proffer agreement with the

government to talk about Capital Blu, with the assurance that it

would not make direct or derivative use of his statements. Alt-

hough the U.S. Attorney’s Office for the Middle District of Florida

(“MDFLA Attorney’s Office”) declined to prosecute, Davis as-

serted, the U.S. Attorney’s Office for the District of Columbia (“DC

Attorney’s Office”) disagreed and “unburied the investigation.”

Davis ultimately spoke with the DC Attorney’s Office in 2013 un-

der a new proffer agreement, but trial counsel “overlooked or mis-

understood” that, in doing so, Davis “would waive the earlier Kas-

tigar protections,” which gave the government “access to tens of

thousands of documents that otherwise were too inextricably com-

mingled to use in the prosecution.”

Third, in “Claim 2.1,” Davis alleged that Charles Greene, his

“long-time attorney,” also represented coconspirator Bromfield,

and that Greene had a conflict of interest when he advised Davis to

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 5 of 35

23-12420 Opinion of the Court 5

go to trial because, according to Greene, Bromfield’s testimony

would not be harmful to Davis and may be helpful. Davis alleged

that Greene “could not have advised [him] to enter a guilty plea

because that would have extinguished his other client’s oppor-

tunity to earn” a sentencing reduction by testifying against Davis.

Davis submitted several affidavits from family members and a Cap-

ital Blu investor who said they heard Greene make similar assur-

ances about Bromfield’s testimony.

Finally, in “Ground Nine,” Davis alleged that the govern-

ment lacked subject-matter jurisdiction over his prosecution be-

cause, at the time the grand jury returned the indictment, the pros-

ecuting attorneys—Assistant United States Attorneys Jonathan

Hooks and Ephraim Wernick—“lacked legal authority to appear in

the grand jury proceedings or to obtain an indictment on behalf of

the United States.”

B. Recusal Issues

In addition to his § 2255 motion, Davis also filed pro se an

application for Judge Mendoza’s recusal under 28 U.S.C. § 144, sup-

ported by affidavits from Davis and Frank Amodeo, an inmate who

had prepared filings for Davis in the past. Davis alleged that Judge

Mendoza exhibited a bias towards “the younger generation” and

those he perceived as undeserving of their wealth. Davis also main-

tained that Judge Mendoza had prejudged Davis’s guilt before trial,

citing the judge’s comments at his coconspirators’ sentencings.

The district court denied the motion, finding that Davis did

not establish an extrajudicial source of bias or show there was

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 6 of 35

6 Opinion of the Court 23-12420

pervasive bias that prejudiced him, reasoning that Davis’s allega-

tions were based on the court’s unfavorable rulings. Davis moved

for reconsideration, arguing that the court incorrectly used the le-

gal standards for 28 U.S.C. § 455, not § 144, and that the court had

obtained and used information from an extrajudicial source when

resolving a prior motion for new trial. The court denied the mo-

tion.

Later, after obtaining counsel, Davis filed a renewed motion

for Judge Mendoza’s recusal. In the motion, Davis explained that

he had been interviewed by U.S. Marshals on December 18, 2020,

about threatening emails Judge Mendoza had received and for-

warded to the Marshals for investigation. For the Marshals to have

interviewed him, according to Davis, “Judge Mendoza must have

named Davis as a suspect,” putting the judge’s impartiality toward

Davis reasonably in question.

The district court denied the recusal motion, finding that

Davis had not “established any source of extrajudicial bias or

shown that there was pervasive bias that prejudiced him.” The

court found that Davis’s allegations were “legally insufficient to

support a motion for disqualification” because he “provide[d] no

evidence, aside from conjecture, that the undersigned directed the

U.S. Marshal to investigate him regarding any e-mails. As such,

Petitioner’s allegations are legally insufficient to support a motion

for disqualification.” The court later denied Davis’s motion to alter

or amend, which sought an explicit statement from the court that

it did not name Davis as a suspect.

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 7 of 35

23-12420 Opinion of the Court 7

C. Briefing and Evidence on the § 2255 Motion

While no evidentiary hearing was held, the parties submit-

ted various documentary evidence and affidavits as part of their

briefing on Davis’s § 2255 motion. The parties and the court also

cited documents that were filed in Davis’s underlying criminal

case. We summarize the relevant filings and evidence below.

1. Government’s response in opposition

After Davis filed his § 2255 motion, the government filed a

response in opposition, asserting that most claims were procedur-

ally defaulted and that the ineffective-assistance claims failed on the

merits. In relevant part, the government asserted that the indict-

ment was timely because Davis had executed two agreements with

the government tolling the limitations period on December 26,

2012, and April 30, 2013.

In support, the government submitted copies of the two toll-

ing agreements. Both agreements reported that Davis was “the

subject of a grand jury investigation for potential criminal charges,”

including fraud and money laundering, in connection with his “al-

leged participation in soliciting investors and managing investment

accounts on or about January 2007 through on or about September

2008.” Because Davis “would like additional time for his counsel

to confer with representatives of the government,” the agreements

reported, the parties agreed to “toll all possible statutes of limita-

tions for all possible charges which could be charged by a grand

jury.” The parties further agreed that Davis could withdraw from

the agreements by providing written notice of intent to withdraw

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 8 of 35

8 Opinion of the Court 23-12420

and receiving written confirmation of receipt from the govern-

ment, and that any limitations period would begin running 30 days

after notice of withdrawal.

The 2012 tolling agreement was signed by Davis, Davis’s

counsel (A. Brian Phillips), and AUSA Wernick. The 2013 tolling

agreement was signed by Davis, Davis’s counsel (Chmelir), and

AUSA Wernick.

2. Davis’s reply in support of the § 2255

In a counseled reply, Davis challenged the tolling agree-

ments, arguing that he had withdrawn from the December 2012

agreement in February 2013, and that the April 2013 agreement

was a forgery. He also contended that Greene’s conflict adversely

affected his trial counsel’s performance, and that the government

failed to address his Kastigar clam. He attached supporting evi-

dence, including affidavits from himself, his wife, Bromfield, and

an expert handwriting analyst and document examiner.

In a personal affidavit, Davis addressed the circumstances

surrounding the 2012 tolling agreement. He explained that, in De-

cember 2012, his attorneys at the time—Greene and Phillips—said

he was being investigated for failure to file personal tax returns.

Based on those representations, Davis entered into a tolling agree-

ment. But when Davis was eventually questioned on February 13,

2013, the government was focused solely on Capital Blu. Feeling

misled, Davis directed Phillips to immediately withdraw from the

agreement, and Phillips confirmed the withdrawal the next day.

Davis then fired Phillips. Not long after, Greene advised Davis that

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 9 of 35

23-12420 Opinion of the Court 9

the government wanted another meeting to discuss Blayne and

Bromfield, and Davis hired attorneys Chmelir and Rose on

Greene’s advice. After Davis fired Phillips, none of his attorneys

(Greene, Chmelir, or Rose) “discuss[ed] plea negotiations with

[him].” Davis averred that he did not enter “into a tolling agree-

ment subsequent to [his] withdrawal from the December 2012 toll-

ing agreement,” and did not sign or authorize the tolling agree-

ment dated April 30, 2013.

Davis’s affidavit also covered post-indictment meetings with

attorneys Greene and Chmelir. In these meetings, according to the

affidavit, Greene insisted that Davis proceed to trial, assuring Davis

that “Bromfield’s testimony will not hurt [Davis] at trial.” Greene

told Davis that he represented and spoke regularly with Bromfield,

who allegedly felt bad for getting Davis into a fraud. Then, accord-

ing to the affidavit, “Chmelir told [Davis] that although he has

never met or spoken to Bromfield, Bromfield’s testimony will not

hurt [Davis].” When Davis asked how Chmelir knew that, Chmelir

replied that he had worked with Greene for years and “trust[ed]

whatever Chuck [Greene] tells” him. Finally, the affidavit asserted

that, after the first day of trial, Chmelir admitted to Davis that he

was receiving advice from Greene on trial tactics and strategy.

Davis’s wife, Christiane Davis, corroborated some of these

details in a sworn declaration. Christiane said that, in February

2013, she overheard Davis direct Phillips to withdraw from the toll-

ing agreement and cease cooperation with the government. The

next day, Phillips confirmed that he had withdrawn Davis from all

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 10 of 35

10 Opinion of the Court 23-12420

agreements with the government. Then, in November 2013, she

heard Chmelir confirm that any agreements with the government

“were done and cancelled since February.”

William B. Smith, a certified handwriting analyst and certi-

fied questioned document examiner, swore that Davis’s signature

on the 2013 tolling agreement was “not genuine,” and he attached

a report that detailed his methodology and findings.

Finally, Bromfield’s affidavit asserted that he was “repre-

sented and advised by” Greene in his criminal case and during the

investigations surrounding Capital Blu.

3. Government’s sur-reply

The government filed a sur-reply with additional arguments

and evidence. Notably, as to the Kastigar claim, the government

argued that it acted within the scope of the proffer agreements,

which did not provide derivative-use immunity. The government

attached copies of a proffer agreement dated October 8, 2088, and

a continuation letter from October 13, 2008.

The 2008 proffer agreement provided that, “In the event

DONOVAN DAVIS is prosecuted, the government will not offer

in evidence during its case-in-chief . . . any statements made and/or

information provided by DONOVAN DAVIS at the proffer, except

as noted below.” The government could use Davis’s statements in

a prosecution for providing false information or as impeachment

evidence. Moreover, the proffer continued,

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 11 of 35

23-12420 Opinion of the Court 11

The government may use any information or evi-

dence (other than the statements of DONOVAN

DAVIS) derived directly or indirectly from the proffer

during any prosecution of DONOVAN DAVIS, in-

cluding during bail/detention proceedings, during its

case-in-chief, or in aggravation of DONOVAN DA-

VIS's sentence. The government is completely free

to pursue any and all investigative leads derived in

any way from the proffer, and this could lead to the

acquisition of evidence admissible against

DONOVAN DAVIS.

The proffer agreement, in short, provided immunity from direct

use of Davis’s statements, except in narrow circumstances, but it

expressly permitted the government to make derivative use of

those statements. A follow-up letter dated October 13, 2008, re-

flected that Davis was interviewed by government agents on Octo-

ber 9, 2008, that the agreement applied to all statements made in

that interview, and that the proffer would continue the next day.

The government also addressed Davis’s claim that the gov-

ernment lacked the legal authority to bring the prosecution. The

government attached a notice dated September 11, 2012, in which

David Margolis, Associate Deputy Attorney General, approved the

recusal of the MDFLA Attorney’s Office from Davis’s investigation

and potential prosecution. Margolis assigned the matter to the DC

Attorney’s Office pursuant to 28 U.S.C. § 515(a), and directed and

authorized United States Attorney Ronald C. Machen, Jr., to

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 12 of 35

12 Opinion of the Court 23-12420

“conduct any kind of legal proceeding, civil or criminal, including

grand jury proceedings . . . which the United States Attorney for

the Middle District of Florida is authorized by law to conduct re-

garding this matter.” The notice also specified that “[a]ll Assistant

United States Attorneys subsequently assigned to this matter must

be appointed a[s] Special Attorneys” to “appear on behalf of the

government in the Middle District of Florida.” Thus, according to

the government, “the case was prosecuted by [AUSAs] operating

as Special Attorneys under the authority of 28 U.S.C. § 515(a).”

4. Records from the criminal docket

Documents filed in the underlying criminal case reflect that,

after the DC Attorney’s Office was assigned to the case, Davis exe-

cuted two proffer agreements on February 13, 2013, and May 17,

2013. The February 2013 agreement was signed by Davis, Davis’s

counsel (Phillips), and AUSA Wernick. The May 2013 agreement

was signed by Davis, Davis’s counsel (Chmelir), and AUSA Wer-

nick.

Like the prior 2008 proffer agreement, the 2013 proffer

agreements both provided that the government could not use

statements made or information provided by Davis, except in lim-

ited circumstances. Similar to the 2008 agreement, the 2013 agree-

ments also permitted the government to “make derivative use of

and . . . pursue any investigative leads suggested by any statements

made by, or other information provided by, your client.” In con-

trast to the 2008 agreement, however, the 2013 agreements con-

tained an explicit statement that Kastigar protections did not apply:

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 13 of 35

23-12420 Opinion of the Court 13

Because any statements made during this debriefing

are voluntarily made on the part of your client, rather

than compelled, Kastigar protections do not apply.

Accordingly, your client understands that based on

the terms of the agreement there will be no Kastigar

hearing at which the government would have to

prove that the evidence it would introduce at trial is

not tainted by any statements made by or other infor-

mation provided by your client.

D. District Court’s Denial

The district court denied Davis’s § 2255 motion in May 2023,

without an evidentiary hearing, as requested by Davis. The court

found, in relevant part, as follows.

First, the district court rejected Claim 1.1, dealing with al-

leged ineffectiveness in failing to interpose the statute of limitations

as a defense. Initially, the court found that Davis’s arguments re-

garding withdrawal from and forgery in the tolling agreements

were “deemed waived” because he raised them for the first time in

his reply brief. But the court decided to “address the merits of this

issue” anyway.

The district court concluded that Davis failed to “produce

evidence” that he complied with the terms of withdrawal in the

tolling agreement. And it found that the 2012 tolling agreement

itself refuted Davis’s alleged belief that the February 2013 interview

was about tax issues. Moreover, the court continued, even assum-

ing Davis withdrew from the 2012 tolling agreement and did not

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 14 of 35

14 Opinion of the Court 23-12420

sign the 2013 tolling agreement, Davis “would have been aware of

the alleged expiration of the statute of limitations,” but never raised

the issue. The court noted that Davis signed speedy-trial waivers

in April 2014 and September 2015. Finally, the court reasoned that,

given the [two tolling agreements], there was no basis

upon which counsel could have argued that the stat-

ute of limitations had expired.” Even if the Reaffir-

mation Tolling Agreement was a forgery, (1) there is

no allegation that Petitioner’s counsel was aware of

the forgery or that Petitioner ever told him about the

forgery, and (2) the Initial Tolling Agreement still was

in effect, as Petitioner has not shown otherwise.

Second, the district court found that Davis could not estab-

lish a claim of ineffective assistance in relation to the 2013 proffer

agreements. The court reasoned that, because the 2008 and 2013

proffer agreements were “substantively the same, his counsel can-

not be deemed to have performed deficiently by advising him to

continue his proffers” in 2013. The court rejected Davis’s argu-

ment that the government must have relied on his statements

when it used the term, “Big Boys Club,” at trial, noting that “testi-

mony about the Big Boys Clubs was produced on Chmelir’s cross-

examination of Damien Bromfield, who attributed the term to

Blayne Davis.” Accordingly, the court found that Davis had “failed

to establish that his counsel was deficient or that he sustained prej-

udice” with respect to Claim 1.2.

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 15 of 35

23-12420 Opinion of the Court 15

Third, the district court concluded that Davis had failed to

establish that his attorneys operated under a conflict of interest. In

the court’s view, the record did not reflect that Greene appeared

on behalf of Davis in the underlying criminal proceeding, or that

“Greene represented Bromfield in his criminal case.”

Finally, the district court determined that Davis was proce-

durally barred from raising several claims because they were not

raised on direct appeal, including Ground Nine, which alleged chal-

lenged the special prosecutors’ legal authority to initiate a prosecu-

tion against him. The court also concluded that Davis could not

satisfy any exceptions to the procedural bar.

E. COA Order

The district court denied a COA for Davis to appeal the de-

nial of his § 2255 motion. A judge of this Court granted a COA on

the following issues:

(1) Whether the district court erred in rejecting, with-

out holding an evidentiary hearing, Davis’s claim,

that his trial counsel performed ineffectively for fail-

ing to argue that the statute of limitations had expired

on the charged crimes?

(2) Whether the district court erred in rejecting, with-

out holding an evidentiary hearing, Davis’s claim,

that his non-appearing defense attorney’s out-of-

court participation in his underlying criminal pro-

ceedings resulted in a conflict of interest?

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 16 of 35

16 Opinion of the Court 23-12420

(3) Whether the district court erred in concluding that

Davis was procedurally barred from raising the claim

that the district court lacked subject-matter jurisdic-

tion over his prosecution?

(4) Whether the district court erred in rejecting Da-

vis’s claim, that counsel provided ineffective assis-

tance for advising him to waive his rights under Kas-

tigar v. United States, 406 U.S. 441 (1972), without

holding an evidentiary hearing?

II. STANDARD OF REVIEW

In adjudicating a district court’s denial of a § 2255 motion,

we review findings of fact for clear error and questions of law de

novo. LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir. 2014).

We review a district court’s denial of a claim of ineffective assis-

tance of counsel de novo. Ochoa v. United States, 45 F.4th 1293, 1298

(11th Cir. 2022). We review the “denial of an evidentiary hearing”

in a § 2255 proceeding for an abuse of discretion. Id. The abuse-

of-discretion standard is deferential, and, in applying it, we may af-

firm the district court, even when we would have reached a differ-

ent conclusion in the first instance. United States v. Rosales-Bruno,

789 F.3d 1249, 1254 (11th Cir. 2015).

We review de novo issues of law, including the interpretation

of an immunity agreement. United States v. Hill, 643 F.3d 807, 874

(11th Cir. 2011). We generally may affirm for any reason supported

by the record, even if not relied upon by the district court. LeCroy,

739 F.3d at 1312.

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 17 of 35

23-12420 Opinion of the Court 17

III. INEFFECTIVE-ASSISTANCE CLAIMS

Three of the four issues listed in the COA order concern the

district court’s decision not to hold an evidentiary hearing before

resolving the merits of the respective ineffective-assistance claim.

A district court must hold an evidentiary hearing on a § 2255

motion “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28

U.S.C. § 2255(b); Anderson v. United States, 948 F.2d 704, 706 (11th

Cir. 1991). Thus, if a movant “alleges facts that, if true, would en-

title him to relief, then the district court should order an eviden-

tiary hearing.” Aron v. United States, 291 F.3d 708, 714–15 (11th Cir.

2002) (quotation marks omitted). Such a hearing is not required

when a movant’s claims are “patently frivolous” or “affirmatively

contradicted by the record.” Id. at 715. But generally speaking,

“contested fact issues in § 2255 cases must be decided on the basis

of an evidentiary hearing, not affidavits.” Montgomery v. United

States, 469 F.2d 148, 150 (5th Cir. 1972). 1

To prevail on an ineffective-assistance-of-counsel claim, a

defendant must satisfy the two-part test established in Strickland v.

Washington that (1) his attorney’s performance was deficient and

(2) the deficient performance prejudiced his defense. 466 U.S. 668,

687 (1984). An attorney’s performance is measured under an

1 This Court adopted as binding precedent all Fifth Circuit decisions prior to

October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)

(en banc).

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 18 of 35

18 Opinion of the Court 23-12420

objective standard of reasonableness, and there is a strong pre-

sumption that the attorney’s conduct fell within the range of rea-

sonable performance. Id. at 688, 690. Deficient performance “re-

quires showing that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. at 687. Prejudice occurs when there is

a “reasonable probability that, but for counsel’s unprofessional er-

rors, the result of the proceeding would have been different.” Id.

at 694.

A. Statute of Limitations

The crimes charged in the indictment were subject to a five-

year statute of limitations. See 18 U.S.C. § 3282(a); United States v.

Webster, 127 F.4th 318, 322 (11th Cir. 2025). Thus, to be timely, the

“indictment had to be returned within five years” of the offense or

the “last alleged overt act” of the conspiracy. United States v. Farias,

836 F.3d 1315, 1324 (11th Cir. 2016).

The indictment against Davis alleged a conspiracy—which

formed the basis for all the charges—that ended no later than Sep-

tember 15, 2008. So ordinarily, the indictment needed to have been

returned by September 15, 2013, to be timely. The indictment here

was returned on February 26, 2014.

It’s undisputed that Davis executed an agreement tolling the

applicable limitations period on December 26, 2012. That agree-

ment was in effect at least through February 13, 2013, when Davis

sat for an interview with the government. Immediately after the

interview, Davis averred, he asked counsel (Phillips) to withdraw

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 19 of 35

23-12420 Opinion of the Court 19

from the agreement, and, the next day, counsel “confirmed that he

did.” Davis’s wife Christiane corroborated these details in a sworn

declaration.

The government offered evidence that Davis executed an-

other tolling agreement on April 30, 2013. But Davis flatly denied

signing any further agreement, and he offered expert testimony

that his signature on the 2013 tolling agreement was not genuine.

Christiane also asserted that, in November 2013, she heard counsel

(Chmelir) confirm that any agreements with the government

“were done and cancelled since February.”

We conclude that the district court erred in denying this

claim without an evidentiary hearing. As an initial matter, we disa-

gree with the court’s view that Davis improperly raised “claims for

the first time in the reply” in support of his § 2255 motion. Rather,

the government raised the tolling agreements as a defense in its re-

sponse, and Davis’s reply simply rebutted the government’s argu-

ments about the agreements with supporting evidence. No new

claims were raised, even if additional facts were revealed.

As to the merits of the issue, Davis only needed to “allege—

not prove—reasonably specific, non-conclusory facts that, if true,

would entitle him to relief.” Winthrop-Redin v. United States, 767

F.3d 1210, 1216 (11th Cir. 2014) (quotation marks omitted). He

met that standard. Accepting Davis’s alleged facts and evidence as

true, the initial tolling agreement was in effect from December 26,

2012, through mid-March 2013, or 30 days after Davis notified the

government of his intent to withdraw in February 2013, and Davis

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 20 of 35

20 Opinion of the Court 23-12420

neither signed nor authorized any other tolling agreements. Under

that version of the facts, the indictment would not be timely, and

Davis arguably could establish prejudice from the failure to raise a

statute-of-limitations defense.

Although the initial agreement stated that Davis could with-

draw only by providing the government with written notice of his

intention to withdraw, and receiving written confirmation of re-

ceipt from the government, Davis’s allegations establish that he be-

lieved that counsel properly withdrew him from the agreement.

Nothing in the record refutes that claim. See Schriro v. Landrigan,

550 U.S. 465, 474 (2007) (“It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.”).

The government asserts that the district court was entitled

to use “common sense” to reject Davis’s “belated narrative about

withdrawing from the initial tolling agreement,” citing our deci-

sion in Winthrop-Redin, 767 F.3d at 1217. In Winthrop-Redin, how-

ever, the movant’s “newly-minted story about being threatened . .

. [was] supported only by the defendant’s conclusory statements.”

Id. (“The fact that Winthrop-Redin presented only his own affidavit

bears on whether the record conclusively shows he is entitled to no

relief.”). Davis’s story, in contrast, was supported by more than

just his own affidavit. So even assuming there are good reasons to

question the veracity of Davis’s claims regarding the tolling agree-

ments, we cannot say that they are refuted by the record.

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 21 of 35

23-12420 Opinion of the Court 21

The district court further reasoned that, even assuming the

2013 tolling agreement was a forgery, there was no indication

Chmelir knew of the forgery, so he could not have been ineffective

for assuming the limitations period had been tolled. The govern-

ment notes that Chmelir referenced Davis’s “cooperation in agree-

ing to toll the statute of limitations” in an October 2014 motion to

continue the criminal trial, as well as Davis’s lack of personal ob-

jection to the timeliness of the case. The record lacks any testi-

mony from Chmelir about these matters, however. And Davis’s

wife Christiane asserted that, in November 2013, she heard Chme-

lir confirm to Davis that any agreements with the government

“were done and cancelled since February.” Thus, the current rec-

ord reflects contested factual issues about the circumstances of the

tolling agreements and the state of Chmelir’s knowledge. See Mont-

gomery, 469 F.2d at 150.

Because the record of the case does not refute Davis’s asser-

tions concerning the 2012 and 2013 tolling agreements, the district

court should have held an evidentiary hearing before denying this

claim. We vacate and remand for further proceedings.

B. Conflict of Interest

The right to effective assistance of counsel includes “the

right to counsel who is unimpaired by conflicting loyalties.” Dun-

can v. Alabama, 881 F.2d 1013, 1016 (11th Cir. 1989); see U.S. Const.

amend. VI. A defendant claiming ineffective assistance due to a

conflict of interest must establish an “actual conflict,” which is a

“conflict [that] adversely affected [his] counsel’s performance,” not

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 22 of 35

22 Opinion of the Court 23-12420

“a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S.

162, 171 (2002). “[A] defendant who shows that a conflict of inter-

est actually affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief.” Cuyler v. Sullivan,

446 U.S. 335, 349-50 (1980).

A conflict may arise from an attorney’s simultaneous or suc-

cessive representation of adverse interests. McConico v. Alabama,

919 F.2d 1543, 1546 (11th Cir. 1990). Neither is conclusive in deter-

mining the existence of an actual conflict, but it is “easier to prove

actual conflict arising from simultaneous representation than from

successive representation.” Id. The movant must show “incon-

sistent interests and must demonstrate that the attorney made a

choice between possible alternative courses of action, such as elic-

iting (or failing to elicit) evidence helpful to one client but harmful

to the other.” Id. (quotation marks omitted). The inquiry into the

existence of an actual conflict is “fact-specific.” Freund v. Butter-

worth, 165 F.3d 839, 859 (11th Cir. 1999).

We have recognized that an attorney’s conflict “does not

necessarily violate the Sixth Amendment if the defendant also re-

ceives the assistance of conflict-free counsel.” Ochoa, 45 F.4th at

1299. The Sixth Amendment “ensures the right to effective assis-

tance of an attorney[,] . . . but does not include the right to receive

good advice from every lawyer a criminal defendant consults about

his case.” Id. (quotation marks omitted). So when “[o]ther attor-

neys represented [the defendant] during and after [counsel] repre-

sented him, . . . it is not enough to allege that [counsel] alone

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 23 of 35

23-12420 Opinion of the Court 23

operated under a conflict of interest.” Id. Rather, the defendant

must sufficiently allege “that the conflict adversely affected his rep-

resentation,” which means establishing that “his attorney’s conflict

denied him the opportunity to pursue a plausible alternative de-

fense strategy or tactic.” Id. (quotation marks omitted). He need

not show the alternative strategy would have been successful, only

that it was a “viable alternative.” Id. (quotation marks omitted).

Here, the district court erred in denying Davis’s conflict-of-

interest claim without an evidentiary hearing. Davis’s allegations,

accepted as true, reflect that Greene advised both Davis and Chme-

lir in relation to the criminal case, even if Greene did not enter a

notice of appearance. According to Davis’s affidavit, Greene in-

sisted that Davis proceed to trial, assuring Davis and Chmelir that

“Bromfield’s testimony will not hurt [Davis] at trial,” and then ad-

vised Chmelir on trial strategy. At the same time, Davis alleges,

Greene was representing Bromfield, a coconspirator who was tes-

tifying against Davis for the government and hoping to earn a sen-

tence reduction for his cooperation. Assuming Davis’s alleged facts

are true, see Winthrop-Redin, 767 F.3d at 1215, he may be able to

prove that Greene had an actual conflict because he “represented

adverse clients simultaneously,” McConico, 919 F.2d at 1548.

Of course, Davis also must show “that the conflict adversely

affected his representation,” which means establishing that “his at-

torney’s conflict denied him the opportunity to pursue a plausible

alternative defense strategy or tactic.” Ochoa, 45 F.4th at 1299 (quo-

tation marks omitted). He has not done so with respect to his

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 24 of 35

24 Opinion of the Court 23-12420

attorneys’ trial performance, other than a vague suggestion that his

trial attorneys “would have likely altered their strategy.” That’s

not enough to show that any conflict had an adverse effect on Da-

vis’s trial representation. See id.

Still, Davis also claims that, due to Greene’s conflict and his

substantial influence on Davis’s trial attorneys, none of his attor-

neys discussed the possibility of plea negotiations. Cf. Stoia v.

United States, 22 F.3d 766, 768–69 (7th Cir. 1994) (“If a non-appear-

ing attorney is burdened by a conflict of interest, the conflict may,

nonetheless, adversely impact the defendant’s trial because of that

attorney’s ability to influence how the defendant’s trial attorney

conducts the case.”). Davis’s § 2255 motion alleged that Greene

“could not have advised [him] to enter a guilty plea because that

would have extinguished his other client’s opportunity to earn” a

sentencing reduction by testifying against Davis.

It’s not apparent from the record that pursuing a plea deal

was not a “viable alternative” to going to trial. Ochoa, 45 F.4th at

1299. Nor does the record show what Davis may have discussed

with his attorneys in relation to a potential guilty plea. And

Greene’s out-of-court participation and influence over Davis’s trial

counsel involves facts and events “outside the courtroom and upon

which the record could, therefore, cast no real light.” Machibroda

v. United States, 368 U.S. 487, 494–95 (1962).

The government, citing Ochoa, argues that, even assuming

Chmelir was affected by Greene’s alleged conflict, Davis still had

effective representation because he did not assert that Rose had a

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 25 of 35

23-12420 Opinion of the Court 25

conflict of interest. See Ochoa, 45 F.4th at 1299 (“[A]n attorney’s

conflict does not necessarily violate the Sixth Amendment if the

defendant also receives the assistance of conflict-free counsel.”).

The record is unclear about Rose’s role, however. He first made

an appearance in the criminal case in February 2015, less than three

months before trial. If Rose was retained solely to assist Chmelir

at trial, we cannot say his representation contradicts Davis’s claim

that Greene’s conflict and influence denied him the opportunity to

pursue a potential guilty plea.

For these reasons, we conclude that an evidentiary hearing

was necessary to resolve Davis’s conflict of interest claim.

C. Kastigar Waiver

In Kastigar, the Supreme Court held that, consistent with the

Fifth Amendment right against self-incrimination, the government

may compel a defendant to testify if it accords him “immunity from

the use of [that] testimony, as well as evidence derived directly and

indirectly therefrom.” Kastigar, 406 U.S. at 453; see U.S. v. Harvey,

869 F.2d 1439, 1444–45 (11th Cir. 1989) (en banc). Thus, “[u]se and

derivative-use immunity establishes the critical threshold to over-

come an individual’s invocation of the Fifth Amendment privilege

against self-incrimination.” In re Grand Jury Subpoena Duces Tecum

Dated March 25, 2011, 670 F.3d 1335, 1351 (11th Cir. 2012).

When a defendant demonstrates that he testified under a

grant of such immunity (both direct use and derivative use), the

burden shifts to the prosecution, which then has “the affirmative

duty to prove that the evidence it proposes to use is derived from

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 26 of 35

26 Opinion of the Court 23-12420

a legitimate source wholly independent” of the immunized testi-

mony. Kastigar, 406 U.S. at 460; Harvey, 869 F.2d at 1444–45.

Because Davis’s claim is based on a proffer agreement, “we

must look to and, if necessary, interpret the text of the agreement”

in order “to determine the scope of his immunity.” United States v.

Hill, 643 F.3d 807, 875 (11th Cir. 2011). “The construction of prof-

fer agreements, like plea agreements, is governed generally by the

principles of contract law, as we have adapted it for the purposes

of criminal law.” United States v. Pielago, 135 F.3d 703, 709 (11th

Cir. 1998); see also United States v. Blanco, 102 F.4th 1153, 1163 (11th

Cir. 2024).

Here, the record refutes Davis’s claim that the 2008 proffer

agreement provided him with “Kastigar protections.” To be sure,

the agreement immunized Davis’s statements at the proffer, except

in certain circumstances. But it otherwise made clear that the gov-

ernment was free to “use any information or evidence (other than

the statements of DONOVAN DAVIS) derived directly or indi-

rectly from the proffer during any prosecution of DONOVAN

DAVIS,” including “during its case-in-chief.” In other words, the

agreement clearly did not provide derivative use immunity. Be-

cause the government was expressly allowed under the agreement

to make derivative use of Davis’s statements, it follows that the

government did not need to show, as in Kastigar, that “the evidence

it propose[d] to use [was] derived from a legitimate source wholly

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 27 of 35

23-12420 Opinion of the Court 27

independent” of the immunized testimony.2 Kastigar, 406 U.S. at

460; Harvey, 869 F.2d at 1444–45.

Because no “Kastigar rights” were afforded by the 2008

agreement, Davis did not surrender any previously granted protec-

tions when he executed the 2013 proffer agreement. The 2013

proffer agreements did not purport to waive Davis’s prior direct-

use immunity. Rather, like the 2008 agreement, the 2013 agree-

ments provided for direct-use immunity, but not derivative-use im-

munity. Accordingly, counsel could not have been ineffective for

failure to consider or advise Davis about Kastigar. No evidentiary

hearing was necessary to resolve this claim.

Moreover, Davis’s lone example of a violation confuses the

nature of his claim. He says that his use of the term “Big Boys

Club” was protected by the 2008 proffer agreement and then sub-

sequently used by the government in its opening statement at his

trial. That claim, however, appears to assert a violation of the 2008

proffer agreement’s direct-use immunity—that is, the govern-

ment’s promise not to “offer in evidence during its case-in-chief . .

2 The circuits to address the issue unanimously agree that Kastigar is not im-

plicated when a proffer agreement expressly allows the government to make

derivative use of immunized testimony. See United States v. Hemphill, 514 F.3d

1350, 1355–56 (D.C. Cir. 2008); United States v. Smith, 452 F.3d 323, 337 (4th

Cir. 2006); United States v. Catano, 65 F.3d 219, 226 (1st Cir. 1995); see also United

States v. Harper, 643 F.3d 135, 140 n.1 (5th Cir. 2011) (“When a defendant vol-

untarily provides information to the Government, however, the Fifth Amend-

ment is not implicated, and the Government may negotiate a lesser degree of

immunity.”).

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 28 of 35

28 Opinion of the Court 23-12420

. any statements made and/or information provided by

DONOVAN DAVIS at the proffer.” 3 But, again, the 2013 agree-

ment did not purport to waive immunity for those statements, and

derivative-use immunity is not in play, as we’ve just explained. Ac-

cordingly, the court properly rejected this claim without an eviden-

tiary hearing.

IV. PROSECUTORS’ AUTHORITY

Subject-matter jurisdiction “defines the court’s authority to

hear a given type of case.” United States v. Grimon, 923 F.3d 1302,

1305 (11th Cir. 2019) (quotation marks omitted). District courts

have jurisdiction to hear cases involving “offenses against the laws

of the United States.” 18 U.S.C. § 3231. An indictment invokes the

district court’s subject-matter jurisdiction so long as it “charges the

defendant with violating a valid federal statute as enacted in the

United States Code” and thus “alleges an offense against the laws

of the United States.” Grimon, 923 F.3d at 1305 (quotation marks

omitted).

Issues related to the appointment of prosecuting attorneys,

however, generally “do[] not affect the Government’s power to

prosecute,” and thus do not “deprive the district court of jurisdic-

tion.” United States v. Suescun, 237 F.3d 1284, 1287 (11th Cir. 2001).

In Suescun, for example, we held that, even assuming an AUSA’s

3 To the extent Davis attempted to raise an ineffective-assistance claim based

on a failure to raise a violation of the 2008 proffer agreement, he has made no

showing of prejudice with respect to the brief use of the term “Big Boys Club”

in a nine-day trial.

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 29 of 35

23-12420 Opinion of the Court 29

appointment “as temporary United States Attorney was invalid”

under the Appointments Clause, “the appointment did not deprive

the district court of jurisdiction to entertain the case and to adjudi-

cate Suescun guilty of the charged offenses.” Id. at 1287–88. Thus,

we concluded that “Suescun waived his objection to the validity of

the indictment because he did not present it as required by Rule

12(b), and the jurisdictional exception does not apply.” Id. at 1288.

In contrast, “challenges to subject matter jurisdiction cannot be

waived.” United States v. Thompson, 702 F.3d 604, 606 (11th Cir.

2012).

The indictment in this case stated that it was returned by

special attorneys acting under authority conferred by 28 U.S.C.

§ 515. Section § 515 provides that “any attorney specially ap-

pointed by the Attorney General under law, may, when specifically

directed by the Attorney General, conduct any kind of legal pro-

ceeding . . . including grand jury proceedings . . . whether or not he

is a resident of the district in which the proceeding is brought.” 28

U.S.C. § 515(a).

Here, the district court did not err in denying Davis’s chal-

lenge to the indictment and prosecution as procedurally barred.

Davis alleged that the AUSAs “lacked legal authority to appear in

the grand jury proceedings or to obtain an indictment,” and did not

have the “specific authority to prosecute on actions in the Middle

District of Florida.” Like in Suescan, however, Davis’s claim ap-

pears to concern the authority of the prosecuting attorneys, which

does not “affect the [g]overnment’s power to prosecute” or

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 30 of 35

30 Opinion of the Court 23-12420

“deprive the district court of jurisdiction.” Suescun, 237 F.3d at

1287. Thus, the district court properly treated Davis’s argument in

substance as non-jurisdictional, even if Davis placed a jurisdictional

label on it. Cf. Gonzalez v. Crosby, 545 U.S. 524, 528 (2005) (looking

to the “substance” of a filing, not its form, to determine whether it

was cognizable). Accordingly, “[Davis] waived his objection to the

validity of the indictment because he did not present it as required

by Rule 12(b), and the jurisdictional exception does not apply.”

Suescun, 237 F.3d at 1288.

Further, Davis’s argument that “one cannot discern whether

the out-of-district prosecutors were properly authorized or super-

vised by the appropriate authorities of government” at his trial

based on the record before the district court fails. The government

offered unrebutted evidence of a September 2012 notice assigning

the matter to the DC Attorney’s Office pursuant to 28 U.S.C.

§ 515(a), and authorizing that office to conduct any “kind of legal

proceeding, civil or criminal, including grand jury proceedings,”

through AUSAs assigned as special attorneys. Beyond vague claims

of an insufficient record, Davis does not explain what was deficient

about this notice, nor does he develop his supervision argument

with any specificity.

V. RECUSAL OF THE DISTRICT JUDGE

Finally, we consider Davis’s demand for recusal of U.S. Dis-

trict Judge Mendoza. We review a district judge’s decision not to

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 31 of 35

23-12420 Opinion of the Court 31

recuse himself for an abuse of discretion.4 United States v. Berger,

375 F.3d 1223, 1227 (11th Cir. 2004). “[W]e will affirm a district

judge’s refusal to recuse himself unless we conclude that the im-

propriety is clear and one which would be recognized by all objec-

tive, reasonable persons.” United States v. Bailey, 175 F.3d 966, 968

(11th Cir. 1999).

A district judge shall proceed no further when a party makes

and files a timely and sufficient affidavit that the judge has a per-

sonal bias or prejudice for or against any party. 28 U.S.C. § 144.

The affidavit must state the facts and the reasons for the belief that

bias or prejudice exists. Id. An affidavit under § 144 must be

“strictly scrutinized for form, timeliness, and sufficiency.” United

4 We reject the government’s argument that a COA is required to consider

this issue. Ordinarily, unless “a circuit judge or judge” issues a COA, “an ap-

peal may not be taken to the court of appeals from . . . the final order in a

proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). The COA require-

ment “governs final orders that dispose of the merits of” a proceeding under

§ 2254 or § 2255. Harbison v. Bell, 556 U.S. 180, 183 (2009) (holding that an

order relating to appointed counsel is “not such an order and is therefore not

subject to the COA requirement”); see 28 U.S.C. § 2253(c)(1). Davis’s motion

for recusal asserted the district judge’s bias or prejudice in the § 2255 proceed-

ing, and if legally sufficient, the judge would have been required to “proceed

no further” in the case. See 28 U.S.C. § 144. Thus, the court’s recusal ruling

was collateral to the merits of the § 2255 proceeding, even if Davis was re-

quired to await final judgment to appeal it. See Harbison, 556 U.S. at 183. Ac-

cordingly, we conclude that no COA was necessary to appeal the denial of

Davis’s application for recusal under § 144. See, e.g., Trevino v. Johnson, 168

F.3d 173, 177–78 (5th Cir. 1999) (holding that no COA is required to appeal the

denial of a recusal motion in a 28 U.S.C. § 2254 proceeding).

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 32 of 35

32 Opinion of the Court 23-12420

States v. Perkins, 787 F.3d 1329, 1343 (11th Cir. 2015) (quotation

marks omitted).

A party seeking recusal under § 144 must allege facts that

would convince a reasonable person that bias actually exists.

Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). The alleged

bias or prejudice under § 144 must stem from an extrajudicial

source. Liteky v. United States, 510 U.S. 540, 544 (1994). The excep-

tion to the general rule requiring an extrajudicial source is perva-

sive bias, which supports disqualification if the court’s predisposi-

tion is “so extreme as to display clear inability to render fair judg-

ment.” Id. at 551. Neither a trial judge’s comments on lack of evi-

dence, nor adverse rulings, constitute pervasive bias. Hamm v.

Members of Bd. of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir.

1983). Judicial remarks “that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases, ordinarily do not sup-

port a bias or partiality challenge,” but may support a bias challenge

if “they reveal an opinion that derives from an extrajudicial source;

and they will do so if they reveal such a high degree of favoritism

or antagonism as to make fair judgment impossible.” Liteky, 510

U.S. at 555 (emphasis omitted).

Here, the district judge did not abuse his discretion by deny-

ing Davis’s application for recusal under § 144. At the outset, we

note that Davis has not addressed his counseled motion for recusal

based on the U.S. Marshal’s investigation into emails sent to Judge

Mendoza, so any appeal of that issue has been abandoned. See

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir.

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 33 of 35

23-12420 Opinion of the Court 33

2014) (issues not briefed on appeal are deemed abandoned). Thus,

this appeal relates solely to the original pro se application for Judge

Mendoza’s recusal under 28 U.S.C. § 144.

Davis’s affidavit did not present legally sufficient grounds for

recusal under § 144. Davis’s affidavit identified approximately four

grounds for the judge’s recusal: (1) comments about the circum-

stances surrounding the preparation of Davis’s Rule 33 motions,

and another inmate’s involvement in those motions; (2) “genera-

tional” bias; and (3) prejudgment of Davis’s guilt.

The district court properly rejected the first ground as incon-

sistent with our decision in Davis I, which considered and rejected

essentially the same allegations as grounds for recusal, and is law

of the case here. See Davis I, 767 F. App’x at 734–35; Oladeinde v.

City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (explaining

that the law-of-the-case doctrine bars relitigation of issues that

were decided either explicitly or by necessary implication in a prior

appeal).

As for the other grounds, they were not based on extrajudi-

cial sources. Rather, Davis relied on remarks made by Judge Men-

doza when sentencing his coconspirators, Blayne and Bromfield. 5

5 At Blayne’s sentencing in October 2014, before Davis’s trial, Judge Mendoza

made the following comments when explaining his sentencing decision:

I do think you stole this money. I think that the fact that you

and your co-defendants were paying each other or paying

yourselves $15,000 a month and having as much as $50,000 in

monthly expenses while generating no income from this

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 34 of 35

34 Opinion of the Court 23-12420

But “opinions held by judges as a result of what they learned in

earlier proceedings do not constitute bias or prejudice.” United

States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007) (quotation marks

omitted). These comments fail to show that “the bias is personal,

as opposed to judicial, in nature.” United States v. Serrano, 607 F.2d

1145, 1150 (5th Cir. 1979) (finding no extrajudicial source where the

judge’s comments “in context clearly demonstrate[] that any pre-

disposition to sentence volume drug offenders severely stemmed

from his observations in a strictly judicial capacity”).

Nor do the judge’s comments at his coconspirators’ sen-

tencings reveal “such a high degree of favoritism or antagonism as

to make fair judgment impossible.” Liteky, 510 U.S. at 555. The

comments Davis specified in his affidavit exclusively refer to judi-

cial remarks that illustrate Judge Mendoza’s reasoning on rulings

adverse to Davis, Bromfield, and Blayne, which do not constitute

pervasive bias. Hamm, 708 F.2d at 651. And we cannot say that the

judge’s comments reveal facts that would “convince a reasonable

business tells me that although you might have had the best

intentions when you started this process, at some point you

made a deliberate decision with your co-defendants that you

were going to defraud these people.

Then, at Bromfield’s sentencing in September 2015, after Davis’s trial, the

judge commented that “it’s bad enough that all of you, as may be typical in

your generation, believe that life is about getting on an elevator and going to

the top floor immediately without any work in between. That seems to be

normal now among the younger generation.”

USCA11 Case: 23-12420 Document: 42-1 Date Filed: 04/25/2025 Page: 35 of 35

23-12420 Opinion of the Court 35

person” of the existence of disqualifying personal bias. See Serrano,

607 F.2d at 1150. We therefore affirm the denial of recusal.

VI. CONCLUSION

In sum, we conclude that the district court should have held

an evidentiary hearing before rejecting Davis’s § 2255 claims of in-

effective assistance based on the statute of limitations and non-par-

ticipating counsel’s alleged conflict of interest. We affirm the judg-

ment in all other respects.

VACATED AND REMANDED in part; AFFIRMED in

part.