Peterson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MARCUS ANTONIO PETERSON,

Petitioner,

v. Case Nos.: 3:23-cv-823-TJC-PDB

3:21-cr-48-TJC-PDB

UNITED STATES OF AMERICA,

Respondent.

ORDER

Petitioner Marcus Antonio Peterson moves pro se under 28 U.S.C. § 2255

to vacate his conviction and sentence. Civ. Doc. 1.1 Peterson pleaded guilty to

conspiracy to distribute and to possess with intent to distribute controlled

substances for which he received a below-guidelines sentence of 95 months.

Peterson now claims that his guilty plea was unknowing and

unintelligent because counsel rendered constitutionally ineffective assistance

during his plea proceedings. Generally, he claims that counsel should have

argued that the substances involved in the offense differed from the controlled

substances charged in the indictment, and the substances involved in the

1 Citations to the record in the criminal case, United States v. Peterson, No. 3:21-cr-

48-TJC-PDB, are denoted “Crim. Doc. __.” Citations to the record in the civil § 2255 case, No.

3:23-cv-823-TJC-PDB, are denoted “Civ. Doc. __.”

offense were not controlled substances that could have supported his conviction.

The United States responds in opposition (Civ. Doc. 3), and Peterson replies

(Civ. Doc. 4).2 This case is ripe for review.3

I. Background

Peterson and eleven others were charged in a superseding indictment

with conspiracy to distribute and to possess with intent to distribute controlled

substances in violation of 21 U.S.C. § 846. Crim. Doc. 114. The conspiracy

“involved a mixture and substance containing a detectable amount of 3,4-

methylenedioxy-methamphetamine, or MDMA, a Schedule I controlled

substance, and a mixture and substance containing a detectable amount of -

Pyrrolidinopentiophenone, or alpha-PVP, a Schedule I controlled substance.”

Id. at 2. The superseding indictment specifies that the offense is punishable

under § 841(b)(1)(C). Id.

Peterson pleaded guilty without a plea agreement. Crim. Doc. 532

(Transcript of Plea Hearing). At the plea hearing, Peterson agreed that the

2 The Court appointed the Office of the Federal Defender to represent Peterson

in this action. Crim. Doc. 527. After review of the record and consultation with

Peterson, the Federal Defender declined to file supplemental briefing. Civ. Doc. 6.

3 Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court

determines that an evidentiary hearing is unnecessary. See Aron v. United States, 291

F.3d 708, 714–15 (11th Cir. 2002) (an evidentiary hearing on a § 2255 petition is not

required when the petitioner asserts allegations that are affirmatively contradicted by

the record or patently frivolous, or if in assuming that the facts he alleges are true, he

still would not be entitled to any relief).

following facts, which are contained in the factual basis of the Notice of

Maximum Penalties filed by the United States, are true and correct (Crim. Doc.

262 at 3–4 and Crim. Doc. 532 at 17–18):

The defendant, MARCUS ANTONIO

PETERSON, was a supplier of -

Pyrrolidinopentiophenone, or alpha-PVP, or similar

synthetic cathinones, sometimes called “flakka”, to the

leaders of a drug trafficking organization in

Jacksonville. After obtaining the drugs, members of the

organization sold them out of a “trap house”, which is a

term for a residence out of which illegal narcotics are

sold.

On Tuesday, April 6, 2021, the defendant

engaged in a conversation by text message with a

leader of the organization about his providing one and

a half to two kilograms of the drugs the following

Thursday. On Thursday, April 8, 2021, the defendant

said, in text messages and conversation by phone, that

he might not receive the drugs that day but might

receive them the next day.

On Friday, April 9, 2021, the defendant told the

leader of the organization that he only had one

kilogram of the drugs to sell and later the same day

they discussed meeting on Chaffee Road in Jacksonville

for the defendant to deliver the drugs. Later that day,

a law enforcement officer surveilled the defendant as

he traveled from Lake City to Jacksonville on

Interstate 10 (“I-10”). Other officers parked near the

eastbound I-10 off-ramp to Chaffee Road. Upon

approaching the exit ramp, the defendant saw law

enforcement vehicles and accelerated past the exit at

high speed. Officers attempted to follow the defendant’s

vehicle but lost sight of it.

For the period from November 2020 through

April 13, 2021, the defendant sold approximately one

kilogram of alpha-PVP or similar synthetic cathinones

to the drug trafficking organization approximately

every two weeks. On April 13, 2021, law enforcement

agents searched a trap house controlled by the

organization and recovered, among other things, 119

baggies of alpha-PVP or a similar synthetic cathinone

and two digital scales.

Additionally, Peterson admitted that “[b]eginning in or about November

2020 and continuing until on or about April 13, 2021, in Duval County, in the

Middle District of Florida, [he] and at least one other person agree[d] to try to

accomplish a shared and unlawful plan to distribute and to possess with intent

to distribute alpha-PVP, a Schedule I controlled substance” and that he “kn[e]w

the unlawful purpose of the plan and willfully join[ed] in it.” Crim. Doc. 262 at

2–3; Crim. Doc. 532 at 19.

The presentence report calculates an advisory guidelines range of 121 to

151 months based on Peterson’s total offense level of 29 and his criminal history

category of IV. Crim. Doc. 341 at ¶ 130 (Final Presentence Investigation

Report). At sentencing, Peterson lodged no objections to the presentence report.

Crim. Doc. 533 at 6–7 (Transcript of Sentencing Hearing). Citing Peterson’s

“relatively circumscribed” role in the conspiracy, among other factors, the

district court varied downward from the advisory guidelines range and

sentenced him to 95 months. Id. at 46 and 50; Crim. Doc. 355 at 3 (Statement

of Reasons). Peterson filed no appeal.4

Instead, Peterson timely filed the present § 2255 motion. He claims his

guilty plea was unknowing and unintelligent because counsel rendered

constitutionally ineffective assistance during the plea proceedings.

II. Standards of Review

A. 28 U.S.C. § 2255

Under 28 U.S.C. § 2255, a person in federal custody may move to vacate,

set aside, or correct his sentence. Section 2255 authorizes a district court to

grant relief on 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 sentence exceeds the maximum authorized by law;

or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

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

fundamental 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); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).

A § 2255 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

4 The district court ordered Peterson to file a written declaration that his decision not

to appeal was his voluntary choice. Crim. Doc. 373. Peterson’s failure to respond to the

order was deemed “to be an acknowledgment by [Peterson] that the decision not to

pursue an appeal was his . . . informed and voluntary choice.” Id.

Beeman v. United States, 871 F.3d 1215, 1221-23 (11th Cir. 2017). If “‘the

evidence does not clearly explain what happened . . . the party with the burden

loses.’” Beeman, 871 F.3d at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357

(11th Cir. 2001)). A § 2255 movant will not be entitled to relief, or an evidentiary

hearing, “when his claims are merely ‘conclusory allegations unsupported by

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

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (citation omitted).

B. Ineffective Assistance of Counsel

“[A] collateral attack is the preferred vehicle for an ineffective-assistance

claim.” United States v. Padgett, 917 F.3d 1312, 1318 (11th Cir. 2019). To

establish ineffective assistance of counsel, a § 2255 petitioner must show both:

(1) that his counsel’s performance was constitutionally deficient, and (2) that

counsel’s deficient performance prejudiced the defense. Strickland v.

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

667 (11th Cir. 2020). In determining whether counsel was deficient, “[t]he

standard for effective assistance of counsel is reasonableness, not perfection.”

Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466

U.S. at 687). “In the light of the ‘strong presumption’ that counsel’s actions [fell]

within the wide range of constitutionally adequate assistance, a movant ‘must

establish that no competent counsel would have taken the [challenged] action.’”

Khan v. United States, 928 F.3d 1264, 1272 (11th Cir. 2019) (quoting Chandler

v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)). To

establish prejudice, the petitioner must show a reasonable likelihood that the

result of the proceeding would have been different but for counsel’s error.

Martin, 949 F.3d at 667 (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010)).

“In the context of pleas a defendant must show the outcome of the plea

process would have been different with competent advice.” Lafler v. Cooper, 566

U.S. 156, 163 (2012). The petitioner must show “that there is a reasonable

probability that, but for counsel’s errors, [the petitioner] would not have pleaded

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

59 (1985).

The Court considers the totality of the evidence in determining whether

a petitioner has established deficient performance and prejudice. Strickland,

466 U.S. at 695. However, because both prongs are necessary, “there is no

reason for a court . . . to approach the inquiry in the same order or even to

address both components of the inquiry if the defendant makes an insufficient

showing on one.” Id. at 697.

III. Discussion

Peterson lists four grounds for relief: (1) that counsel was ineffective for

not arguing that, although Peterson was charged with conspiring to distribute

alpha-PVP, the substance involved in the offense (as confirmed by laboratory

testing) was a-PiHP, and that counsel was ineffective for not thoroughly

investigating a-PiHP, which was not a listed controlled substance at the time

of the offense; (2) that counsel was ineffective for advising Peterson to plead

guilty because the indictment charged him with conspiring to distribute alpha-

PVP, but laboratory testing showed the substance involved in the offense was

a-PiHP, and therefore his guilty plea was unknowing and unintelligent; (3) that

he wishes to withdraw his guilty plea because the indictment charged him with

conspiring to distribute alpha-PVP, but laboratory testing showed the

substance involved in the offense was a-PiHP; and (4) that he neither sold

MDMA nor pleaded guilty to conspiring to distribute MDMA.

A. Grounds One and Two

Grounds One and Two, although listed separately, can be restated as one

claim: that counsel was ineffective during the plea proceedings for not arguing

that the crime charged in the indictment involved alpha-PVP, but laboratory

tests confirmed that the substance involved in the offense was a-PiHP, which

was not a scheduled controlled substance, and therefore, Peterson unknowingly

and unintelligently pleaded guilty to an offense of which he is actually innocent.

See Doc. 3 at 4 (United States’ restatement of Peterson’s claims); see also Senter

v. United States, 983 F.3d 1291, 1294 (11th Cir. 2020) (restating petitioner’s

claim in “an effort to get to the root of the problem” and concluding that the

district court “correctly identified the claim before it, and its reframing of the

claim did not violate Clisby [v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en

banc)]). In support of his claim, Peterson files Drug Enforcement

Administration (“DEA”) laboratory reports that confirm that one of the

substances seized by law enforcement was a-PiHP. Civ. Doc. 1-1.

Peterson’s claim fails because circuit precedent is clear that “§ 841(a)(1),

§ 846, and § 841(b) do not require the government to prove a defendant’s

knowledge of a specific drug.” United States v. Gray, 94 F.4th 1267, 1270 (11th

Cir. 2024). “’Section 841(a)(1) makes it unlawful for any person knowingly or

intentionally to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance,’” and § 846 makes

it a crime to conspire to violate § 841(a)(1).” Gray, 94 F.4th at 1270 (emphasis

in original) (quoting United States v. Colston, 4 F.4th 1179, 1187 (11th Cir.

2021)). “For both [§ 841 and § 846], the same state of mind is necessary: ‘the

defendant must knowingly possess, and intend to distribute, a controlled

substance, but need not know which substance it is.’” Id. at 1270–71 (quoting

Colson, 4 F.4th at 1187–88). “Section 841(b), on the other hand, provides the

possible penalties for a § 841(a)(1) violation ‘based on only the type and quantity

of drug involved, not on what the defendant knew.” Id. at 1271 (quoting Colston,

4 F.4th at 1188). “That . . . [is] why the indictment need[s] to list the type of

substance—by both name and schedule.” Id.

“[A]n indictment listing a specific substance simply establishes the type

of drug the government must prove at sentencing; it does not change the general

knowledge element for § 846 and § 841(a)(1).” Id. “That approach tracks [the

circuit court’s] instruction that indictments must be read ‘as a whole’ and given

a ‘common sense construction’ based upon ‘practical, not technical,

considerations—including the elements of the statutory offense.’” Id. (quoting

United States v. Phillips, 4 F.4th 1171, 1176 (11th Cir. 2021)).

Furthermore, the circuit court “specifically rejected [its] contrary decision

in United States v. Narog, which had said that because the indictment in that

case named a specific type of drug, the government needed to prove the

defendant’s knowledge of that particular drug to the jury.” Id. (citing 372 F.3d

1243, 1246 (11th Cir. 2004). “Narog and ‘its demand for a hyper-technical

parsing of every indictment,’ . . . departed from longstanding precedent and thus

[i]s ‘not good law.’” Id. (quoting Colston, 4 F.4th at 1188–89).

Here, the superseding indictment charges Peterson with violating § 846,

as punishable under § 841(b)(1)(C). Crim. Doc. 113 at 2. It specifies that the §

846 violation “involve[s] . . . MDMA . . . and . . . alpha-PVP,” both of which are

identified as “Schedule I controlled substance[s].” Id. According to circuit

precedent, this language in the superseding indictment “require[s] the

government to prove only that [Peterson] knew he possessed a controlled

substance, not that he knew he possessed a certain controlled substance.” Gray,

94 F.4th at 1271; see also United States v. Achey, 943 F.3d 909, 914 (11th Cir.

2019) (“[F]or a §846 conspiracy charge, the government is ordinarily not

required to prove that the defendant conspired to distribute a specific substance

but is only required to prove that the defendant conspired to distribute a generic

controlled substance.”). Furthermore, “[t]he fact that the indictment name[s] a

specific substance does not change this general-knowledge requirement.” Gray,

94 F.4th at 1271. Indeed, the identification of MDMA and alpha-PVP as the

narcotics involved in the conspiracy only “provide[s] an element of an enhanced

penalty under § 841(b)—which does not carry a knowledge requirement.” Id.

Accordingly, because the United States did not have to prove Peterson’s

knowledge that the charged conspiracy involved a specific narcotic, any

objection by counsel that the narcotics seized by law enforcement differed from

the narcotics charged in the superseding indictment would have been meritless

and futile. And, counsel is not constitutionally ineffective for failing to raise this

meritless claim. See Hollis v. United States, 958 F.3d 1120, 1124 (11th Cir.

2020); Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing

Freeman v. Attorney General, Fla., 536 F.3d 1225, 1233 (11th Cir. 2008)).

Similarly, counsel was not ineffective for not thoroughly investigating whether

a-PiHP was a listed controlled substance because, again, the United States did

not have to prove Peterson’s knowledge that the charged conspiracy involved a

specific narcotic, and Peterson admitted to conspiring to distribute a controlled

substance, generically.

Peterson’s claim fails for the additional reason that a-PiHP was, in fact,

a scheduled controlled substance at the time of the conspiracy. The United

States acknowledges, a-PiHP “was not specifically listed as a controlled

substance at the time of the conspiracy,” (Civ. Doc. 3 at 7); but, it was

nevertheless a scheduled controlled substance because it was a positional

isomer of -Pyrrolidinopentiophenone (a-PHP), which was specifically listed as

a controlled substance. The United States presents a letter from Terrence L.

Boos, Ph.D., Chief of Drug & Chemical Evaluation Section of the DEA, which

explains that a-PiHP is a positional isomer of a-PHP (Civ. Doc. 3-1 at 1):

a-PiHP is a schedule I controlled substance under the

[Controlled Substances Act]. The chemical structure of

a-PiHP defines it as a positional isomer of alpha-

pyrrolidinohexanophenone (a-PHP). 21 CFR §

1308.11(h) controls a-PHP including its optical,

positional (positional isomers as defined by 21 CFR §

1300.01) and geometric isomers, salts, and salts of

isomers in schedule I.

Therefore, because a-PiHP is a positional isomer of a-PHP, which was a listed

controlled substance, a-PiHP was also a controlled substance despite not being

specifically listed as one. Accordingly, Peterson cannot show that counsel was

ineffective for not thoroughly investigating the drug seized by law enforcement,

or for failing to argue that the drug was not a controlled substance, because

such investigation and argument would have been futile.

Furthermore, Peterson’s claim that he unknowingly pleaded guilty to an

offense of which he is actually innocent is refuted by his sworn statements at

the plea hearing. During the hearing, the magistrate judge explained to

Peterson the two elements of the § 846 charge (Crim. Doc. 532 at 12):

[T]o prove [the § 846] charge, the United States has to

prove two different elements; first, the United States

has to prove that two or more people in some way

agreed to try to accomplish a shared and unlawful plan

to distribute or to possess with the intent to distribute

controlled substances; and, second, that you knew the

unlawful purpose of the plan and willfully joined in it.

Peterson confirmed he understood these elements and had no questions. Id.

Next, the United States recited the facts that support the § 846 charge,

including the fact that Peterson “was a supplier of . . . alpha-PVP, or similar

synthetic cathinones . . . to the leaders of a drug trafficking organization.” Id.

at 17 (emphasis added). Peterson lodged no objections to any of the facts and

confirmed the facts were true. Id. at 17–18. Peterson confirmed that he was

“pleading guilty because [he] [is] guilty[.]” Id.

Peterson acknowledged that counsel “explain[ed] the charge” against him

and “answer[ed] all of [his] questions[.]” Id. at 12. He further confirmed that he

was satisfied with counsel’s representation of him and had no complaints about

counsel’s representation of him. Id. at 20. The magistrate judge found that

Peterson was pleading guilty “knowingly, freely, intelligently, and voluntarily,

and . . . , that [he] had the advice and counsel of a competent lawyer, with whom

[he was] satisfied.” Id. at 22. Peterson never objected to this finding.

Finally, at sentencing, Peterson made no attempt to withdraw his guilty

plea and neglected to notify the district court during allocution of his

dissatisfaction with counsel’s representation or his questions regarding the

elements of the § 846 offense. In fact, Peterson repeatedly acknowledged his

wrongdoing and expressed his remorse: “I was wrong. And I apologize for my

choices and bad decisions and wrong action that I chose. . . . I’m apologetic . . .

because what I did was wrong.” Crim. Doc. 533 at 39.

A defendant’s statements at the plea hearing “constitute a formidable

barrier in any subsequent collateral proceedings” because “[s]olemn

declarations in open court carry a strong presumption of verity.” Blackledge v.

Allison, 431 U.S. 63, 74 (1977); see also United States v. Medlock, 12 F.3d 185,

187 (11th Cir. 1994) (“There is a strong presumption that the statements under

oath a plea colloquy are true.”). “[W]hen a defendant makes statements under

oath at a plea colloquy, he bears a heavy burden to show his statements were

false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

Peterson offers no argument or evidence to disavow his confirmations

under oath that he understood the elements the United States must prove for a

§ 846 offense. He made specific assurances under oath at the plea hearing, and

later at the sentencing hearing, that discredit his current claim that he did not

understand the charge to which he was pleading guilty or that he unknowingly

pleaded guilty to crime of which he is innocent. See Winthrop-Redin, 767 F.3d

at 1217 (“The district court is entitled to discredit a defendant’s newly-minted

story about [his lack of understanding about the charge to which he is pleading

guilty] when that story is supported only by the defendant’s conclusory

statements” and is contradicted by the record of the change-of-plea colloquy.).

Importantly, he told the magistrate judge that he understood the United States

need only prove that he conspired to distribute a controlled substance, and he

admitted all the facts necessary to support the § 846 charge, including that he

conspired to distribute a controlled substance. Crim. Doc. 532 at 12 and 17–19.

Because his claim is affirmatively contradicted by the record of the plea and

sentencing hearings, Peterson has not carried his “heavy burden to show his

statements were false.” Rogers, 848 F.2d at 168.

Furthermore, Peterson’s claim fails because he cannot demonstrate a

reasonable probability that, but for counsel’s alleged errors, he would not have

pleaded guilty and would have insisted on going to trial. See Premo v. Moore,

562 U.S. 115, 129 (2011); Hill, 474 U.S. at 58–59. In his reply, Peterson contends

that he “would have insisted on going to trial had counsel not given him bad

legal advice that (a-piHp) was a listed drug under federal law[.]” Civ. Doc. 4 at

4. However, he cannot show that “a decision [to proceed to trial] would have

been rational under the circumstances.” Padilla, 559 U.S. at 372. The United

States’ evidence against Peterson, as summarized in the factual basis

supporting the Notice to which Peterson pleaded guilty, was substantial, and

Peterson admitted these facts without objection. Furthermore, he benefitted by

pleading guilty because his total offense level was decreased by two levels for

his acceptance of responsibility. Crim. Doc. 341 at ¶¶ 59 and 68; see DiMaria v.

United States, No. 22-11470, 2025 WL 1067253, at *3 (11th Cir. Apr. 9, 2025)

(concluding that the petitioner failed to show it would have been rational to

proceed to trial when the “evidence against [him] was significant” and his guilty

plea “lessen[ed] . . . his sentencing exposure”); see also Harvey v. United States,

674 F. App’x 865, 869 (11th Cir. 2016) (concluding that the petitioner failed to

show it would have been rational to proceed to trial when “the incriminating

evidence against [him] was overwhelming”); Diveroli v. United States, 803 F.3d

1258, 1265 (11th Cir. 2015) (concluding the same, when the petitioner “faced

overwhelming evidence of guilt and had no valid affirmative defenses”). Given

Peterson’s admission to facts supporting the § 846 offense, he cannot show a

reasonable probability that but for counsel’s advice that a-PiHP was a listed

controlled substance he would have proceeded to trial.

B. Ground Three

In Ground Three, Peterson expresses his desire to withdraw his guilty

plea because, as he claims in Grounds One and Two, the substances seized by

law enforcement differed from the controlled substances charged in the

indictment, and he believes they were not controlled substances that could have

supported his conviction.

When granting relief under § 2255, a district court “shall vacate and set

the judgment aside and shall discharge the prisoner or resentence him or grant

a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. §

2255(b). Thus, the statute establishes a two-step process. United States v.

Brown, 879 F.3d 1231, 1235 (11th Cir. 2018). “First, the court must ‘vacate and

set the judgment aside.’” Id. Second, the district court “must choose from among

four distinct remedies: (1) discharge the prisoner; (2) resentence the prisoner;

(3) grant the prisoner a new trial; or (4) correct the prisoner’s sentence.” Id.; see

also United States v. Cody, 998 F.3d 912, 916 (11th Cir. 2021) (explaining that,

after the district court “select[s] one of four remedies[,] . . . the proceeding under

section 2255 is over”).

Peterson’s request to withdraw his guilty plea is not properly before the

district court in this § 2255 action. The remedy is not one of the “four distinct

remedies” authorized under § 2255(b).5 Instead, the district court generously

construes Peterson’s request as a motion to vacate and set aside the criminal

judgment, and for the reasons already explained, such motion lacks merit. See

Yoseph v. Sec’y, Fla. Dep’t of Corr., No. 25-10113, 2025 WL 2366445, at *4 (11th

Cir. Aug. 14, 2025) (“’Federal courts have long recognized that they have an

obligation to look behind the label of a motion filed by a pro se inmate and

determine whether the motion is, in effect, cognizable under a different

5 Peterson filed no motion to withdraw his guilty plea in his criminal action.

remedial framework.’”) (quoting United States v. Johnson, 915 F.2d 622, 624–

25 (11th Cir. 1990)).

C. Ground Four

In Ground Four, Peterson claims that “he never sold MDMA nor did he

plea[d] guilty to MDMA within his plea agreement.” Civ. Doc. 1 at 8. The Court

generously construes this claim, which lacks any elaboration or support, as a

claim that Peterson was convicted of, and sentenced for, an offense to which he

did not plead guilty. See Winthrop-Redin, 767 F.3d at 1215 (“We liberally

construe pro se filings, including pro se applications for relief pursuant to §

2255.”); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998).

Because Peterson neglected to raise this claim on direct appeal, the claim

is procedurally defaulted. Bousley v. United States, 523 U.S. 614, 622–24 (1998)

(claims that previously were available yet were not raised in a prior proceeding

are procedurally defaulted and ordinarily are barred from consideration on

collateral review). And, Peterson makes no attempt to demonstrate that cause

and prejudice or a miscarriage of justice excuse his procedural default. McCay

v. United States, 657 F.3d 1190, 1996 (11th Cir. 2011).

Additionally, the claim is affirmatively contradicted by the record and

lacks merit. As explained supra, the superseding indictment charges Peterson

with one count of conspiracy to distribute and to possess with intent to

distribute controlled substances. Crim. Doc. 114 at 2. The conspiracy involved

MDMA and alpha-PVP. Id. Peterson did not enter into a plea agreement.

Rather, he entered an open guilty plea and, in doing so, admitted that “[he] and

at least one other person agree[d] to . . . [an] unlawful plan to distribute and to

possess with intent to distribute alpha-PVP, a Schedule I controlled

substance[.]” Crim. Doc. 262 at 2–3; Crim. Doc. 532 at 19. The factual basis of

the Notice of Maximum Penalties to which Peterson pleaded guilty lacks any

reference to MDMA.

Similarly, at sentencing, Peterson was not accountable for conspiring to

distribute MDMA. Rather, in calculating Peterson’s base offense level, the

presentence report notes that the conspiracy “involved a total 12.0 kilogram[s]

of [alpha-PVP][,]”6 which equals 4,560 kilograms of converted drug weight.

Crim. Doc. 341 at ¶ 61. Under U.S. Sentencing Guidelines § 2D1.1, because the

offense involved between 3,000 and 10,000 kilograms of converted drug weight,

Peterson’s base offense level was 32. Id. Accordingly, Peterson pleaded guilty

to, and was held accountable at sentencing for, conspiring to distribute alpha-

PVP—not MDMA. Therefore, because Ground Four is both procedurally

defaulted and meritless, Peterson is entitled to no relief.

6 “a-Pyrrolidinopentiophenone, or alpha-PVP, or similar synthetic cathinones such as

Eutylone or alpha-PiHP, . . . are sometimes called ‘flakka’ and are Schedule I

controlled substances.” Crim. Doc. 341 at ¶ 10, n.1.

D. Peterson’s Reply

In his reply, Peterson attempts to bring a new claim that is absent from

his § 2255 motion. In one sentence, and without any elaboration, Peterson

contends that “[t]he government[‘s] failure to elaborate on the issue that counsel

had been ineffective for failure to file an appeal upon his request to do so,

therefore shows that the government concedes to that issue as being true.” Civ.

Doc. 4 at 4.

A district court is required to resolve every claim properly presented in a

§ 2255 motion. Clisby, 960 F.2d at 936. The district court, however, is not

required to address a claim that a party fails to raise until the reply. See United

States v. Howard, 28 F.4th 180, 201, n. 6 (11th Cir. 2022) (“Arguments raised

for the first time in a reply brief are not properly before a reviewing court.”)

(quotations and alterations omitted). Furthermore, “[a] habeas petitioner must

present a claim in clear and simple language such that the district court may

not misunderstand it.” Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013).

In his § 2255 motion, Peterson lists four grounds for relief as restated

supra in Section III. See Senter, 983 F.3d at 1295 (“It may be best practice for

a district court to follow a ‘show your work’ approach by directly restating a

movant’s claim and then laying out all analytical steps in addressing that

claim.”). When asked on the standard form to “explain why” he did not raise

these four grounds for relief in a direct appeal, Peterson responds, “Counsel

advised me that I have no issues to raise on direct appeal[,]” (Civ. Doc. 1 at 3);

“Counsel fail[ed] to raise this issue because Counsel believed . . . that the

substance (a-pihp) was a legal drug[,]” (id. at 5 and 8); and “counsel fail[ed] to

raise this issue [on] on direct appeal[,]” (id. at 6). Absent from Peterson’s motion

is any allegation that he requested counsel to file an appeal. Also absent from

Peterson’s motion is any freestanding or separate claim that counsel was

ineffective for not appealing (regardless of whether he asked counsel to appeal).

Although the district court generously construes pro se pleadings, “this leniency

does not give a court license to serve as de facto counsel for a party, or to rewrite

an otherwise deficient pleading in order to sustain an action.” Campbell v. Air

Jam., Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014)).

Accordingly, because Peterson waited until his reply to advance this

additional complaint that counsel was ineffective for not appealing after

Peterson requested that he do so, the claim is not properly before the district

court, and the district court shall not consider it. See Wilson v. United States,

No. 16-15133, 2017 WL 3225903, at *1 (11th Cir. Feb. 23, 2017) (citing Herring

v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (“[T]his claim was

not properly raised until [the] reply brief and, therefore, was not properly before

the district court.”)); see also Prada v. United States, 692 F. App’x 572, 574 (11th

Cir. 2017) (affirming the district court’s refusal to consider new arguments

raised in a reply brief because petitioner “was barred from raising new claims”);

Enriques v. United States, 416 F. App’x 849, 850 (11th Cir. 2011) (“Although

pro se pleadings are construed more liberally than those filed by counsel, . . .

issues not argued by a pro se litigant in his initial brief are deemed waived[,] .

. . [and] we do not address arguments raised for the first time in a pro se

litigant’s reply brief.”); Snyder v. United States, 263 F. App’x 778, 780 (11th Cir.

2008) (affirming the district court’s ruling that a pro se petitioner’s reply brief

could not be construed as an amendment to add an additional claim to the

motion to vacate).

IV. Conclusion

Peterson’s motion under § 2255 to vacate, set aside, or correct his sentence

(Civ. Doc. 1) is DENIED. The clerk is directed to enter a judgment against

Peterson, terminate any pending motions, close this case, and enter a copy of

this order in the criminal case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Peterson is not entitled to a certificate of appealability (“COA”). A

prisoner moving under § 2255 has no absolute entitlement to appeal a district

court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district

court must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” To merit a certificate of appealability, Peterson must show that

reasonable jurists would find debatable both (1) the merits of the underlying

claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926,

935 (11th Cir 2001). Because he fails to show that reasonable jurists would

debate either the merits of the claims or the procedural issues, Peterson is

entitled to neither a certificate of appealability nor an appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Moore must obtain permission from the circuit court to

appeal in forma pauperis.

DONE AND ORDERED at Jacksonville, Florida, this 22nd day of June

2026.

□ Cimotbeg g. Corrig □□

TIMOTHY J. CORRIGAN

Senior United States District Judge

TpaP-5

C: Marcus Antonio Peterson, #45830-509

Counsel of record

23