Petition for Writ of Certiorari — Christopher R. Glenn, Petitioner v. United States

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Case: 17-15057

Date Filed: 07/15/2019

. Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-15057=JJ

CHRISTOPHER R. GLENN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

ORDER:

Christopher R. Glenn moves for a certificate of appealability (“COA”) in order to appeal

the district court’s denial of Ms 28 U.S.C. § 2255 motion to vacate. In order to obtain a COA, a

movant must make “a substantial showing of the denial of a constitutional right. " 28 U.S.C.

§ 2253(c)(2). Because Glenn has failed to make the requisite showing, Ms motion for a COA is

DENIED.

/s/ Charles R. Wilson

UNITED STATES CIRCUIT JUDGE

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CHRISTOPHER R. GLENN. Movant, v. UNITED STATES OF AMERICA, Respondent.

. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2017 U,S. Dist LEXIS 214809

CASE MO.: 17-80479-CIV-MARRA/WHITE,14-8Q031-Cir-MARRA

October 19, 2017, Decided

October 20, 2017, Entered on Docket

Editorial Information: Prior History

Glenn v. United States, 2017 U.S. Dist. LEXIS 72116 (S.D. Fla., May 10, 2017) .

Counsel

{2017 U.S. Dist. LEXIS 1}Christopher Glenn, Plaintiff, Pro se, Miami,

For United States of America, Defendant: Noticing 2255 US

Attorney, LEAD ATTORNEY; Ricardo A. Del Toro, LEAD ATTORNEY, United States

Attorney's Office, Miami, FL.

Judges: KENNETH A. MARRA, United States District Judge.

Opinion

Opinion by:

KENNETH A. MARRA

Opinion

FINAL JUDGMENT AFFIRMING AMD APPROVING REPORT AND RECOMMENDATION

This cause is before the Court upon the Movant's Motion to Vacate Sentence Under 28 U.S.C. §

2255 (DE 1). The Motion was referred to United States Magistrate Judge Patrick A. White for

consideration and a report and recommendation.

Magistrate Judge White entered a Report of Magistrate Judge on May 10, 2017 (DE 7) in which he

recommends that the motion be denied and no certificate of appealability be issued. (Id. at 42.) The

Movant filed Objections to the Report on June 22, 2017 and July 7, 2017 (DE 8, 9).

The Court, having conducted a de novo review of the entire file and record herein, agrees with the

conclusion of the Magistrate Judge. Accordingly, it is hereby ORDERED AND ADJUDGED that the

Report of Magistrate Judge (DE 7) is AFFIRMED AND APPROVED in its over the Objections (DE 8

& 9) made by the Movant.1 The claims of ineffective assistance of counsel are refuted by

Petitioner’s{2017 U.S. Dist. LEXIS 2} sworn testimony at his change of plea hearing. Petitioner's

assertion that the signature page of the factual proffer he signed was fraudulently attached by his

attorney to the one appearing in the Court record, and his claim that the one he signed is different

than the one appearing in the Court record is preposterous. Petitioner represented to the Court he

read the factual proffer which appears in the Court record, he reviewed it with his attorney, he

understood it and he agreed the facts were all true and correct. Petitioner is not entitled to an

evidentiary hearing based on outrageous and false allegations which have no support in the record.

As a result, the Motion to Vacate under 28 U.S.C. § 2255 (DE 1) is DENIED. Additionally, Petitioner's

Motion to Stay Proceedings (DE 10) is DENIED.

Under Rule 11(a) of the Rules Governing Section 2255 Proceedings in the United States District

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and terms and conditions of the Matthew Bender Master Agreement.

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Courts, this Court must issue or deny a certificate of appealability when entering a final order

adverse to the applicant. The Court concludes under Slack v. McDaniel, 529 U.S. 473, 120 S. Ct.

1595, 146 L. Ed. 2d 542 (2000), that Petitioner cannot shown that "jurists of reason would find it

debatable whether the petition states a valid claim of denial of a constitutional right, and that jurists

of reason would find it debatable whether the district court was correct in its procedural{2017 U.S.

Dist. LEXIS 3} ruling." Id. at 478. Therefore, the Court DENIES the issuance of a certificate of

appealability. The Court notes that under Rule 22(b)(1) of the Federal Rules of Appellate Procedure,

the Petitioner may seek a certificate of appealability from the U.S. Court of Appeals for the Eleventh

Circuit.

The Clerk shall CLOSE this case. Any other pending motions are DENIED as moot.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida this 19th

day of October, 2017.

Is/ Kenneth A. Marra

KENNETH A. MARRA

United States District Judge

Footnotes

The Court rejects the Magistrate Judge's suggestion that the issues raised by Petitioner were

procedurally defaulted because they could have been raised on direct appeal. [DE 7 at 31-33]. All of

the claims raised by Petitioner are for ineffective assistance of counsel which generally cannot be

asserted on direct appeal. Regardless, the claims fail on the merits.

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and terms and conditions of the Matthew Bender Master Agreement.

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CHRISTOPHER R. GLENN. Movant, vs. UNITED STATES OF AMERICA, Respondent.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2017 U.S. Dist. LEXIS 72116

CASE NO. 17-80479-Civ-MARRA,(14-80031 -Cr-MARRA)

May 10, 2017, Decided

May 10, 2017, Entered on Docket

Editorial Information: Subsequent History

Adopted by, Post-conviction relief denied at, Stay denied by, Certificate of appealability denied, Motion

denied by, As moot Glenn v. United States, 2017 U.S. Dist. LEXIS 214809 (S.D. Fla., Oct. 19, 2017)

Editorial Information: Prior History

United States v. Glenn, 2014 U.S. Dist. LEXIS 52882 (S.D. Fla., Mar. 28, 2014)

Christopher Glenn, Plaintiff (9:17-cv-80479-KAM), Prose, Miami, FL.

For United States of America, Defendant (9:17-cv-80479-KAM):

Noticing 2255 US Attorney, LEAD ATTORNEY; Ricardo A. Del Toro, LEAD ATTORNEY,

United States Attorney's Office, Miami, FL.

For USA, Plaintiff (9:14-cr-80031-KAM-1): Ricardo A. Del Toro,

Vanessa S. Johannes, LEAD ATTORNEYS, Benjamin J. Widlanski, Daren Grove, United

States Attorney's Office, Miami, FL.

Judges: Patrick A. White, UNITED STATES MAGISTRATE JUDGE.

Counsel

Opinion

Opinion by:

Patrick A. White

Opinion

REPORT OF MAGISTRATE JUDGE

I. Introduction

This matter is before the Court on the movant's pro se motion to vacate, filed pursuant to 28 U.S.C.

§ 2255, attacking the constitutionality of his convictions and sentences for unauthorized access,

willful retention, and failure to deliver national defense information, exceeding authorized access to a

computer, obtaining national defense information, and willfully retaining that information, entered

following a guilty plea in case no. 14-80031-Cr-Marra.

This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §

636(b)(1)(B),(C); S.D.FIa. Local Rule 1(f) governing Magistrate Judges; S.D. Fla. Admin. Order

2003-19; and Rules 8 and 10 Governing Section 2255 Cases in the United States District Courts.

No order to show cause has been issued because, on the face of the petition, it is evident the

petitioner is entitled to no relief. See Rule 4,1 Rules Governing Section 2255 Proceedings.

Because summary dismissal is warranted and the movant is not entitled to post-conviction relief, no

order to show cause has been issued in the instant case and, therefore, the government was not

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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required to file a response. See Broadwater v. United States. 292 F.3d 1302, 1303-04 (11th Cir.

2002) (a district court has the power under Rule 4 of the Rules Governing Section 2255 Cases to

summarily dismiss a movant's claim for relief so long as there is a sufficient basis in the record for

an appellate court to review the district court's decision).

Before the Court for review are the movant's § 2255 motion (Cv-DE#1) with supporting appendix

(DE#1-1), the Presentence Investigation Report ("PSI"), Statement of Reasons ("SOR"), along with

all pertinent portions of the underlying criminal file, including the plea agreement with incorporated

stipulated factual proffer (Cr-DE#101), together with the change of plea (Cr-DE#175) and sentencing

(Cr-DE#178) transcripts.

II. Claims

Construing the § 2255 motion liberally as afforded pro se litigants pursuant to Haines v. Kerner, 404

U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), as can best be discerned, the movant raises the

following grounds for relief:

1. He was denied effective assistance of counsel, where his lawyer, through his deceptive and/or

reckless actions, legal malpractice, bad faith, and breach of contract, deceived the movant into

believing that U.S.S.G. § 2M3.2 would not be applied because the movant was to be convicted

of violating 18 U.S.C. § 793(e) since movant never transmitted nor communicated any secrets or

defense information to any individual, entity, or government. (Cv-DE#1:16).

2. He was denied effective assistance of counsel, where his lawyer knowingly, willfully, through

trickery, concealment, or fraud covered up a material fact regarding the signature page of the

stipulated factual proffer, purposefully concealing and not presenting to the court the defense's

factual proffer. (Cv-DE#1:17-18).

3. He was denied effective assistance of counsel, where his lawyer, who had actual knowledge

that the movant was factually innocent of the espionage counts, nevertheless misadvised

movant to accept a guilty plea as to those offenses, thereby making movant's plea not knowing

and voluntary. (Cv-DE#1:18-19).

III. Factual and Procedural Background

A. Facts of the Offense

The stipulated factual proffer reveals as follows. (Cr-DE#101). Movant is a U.S. citizen and a civilian

contractor working as a network system administrator for Harris Corporation ("Harris") stationed at

the U.S. Army Southern Command's Joint Task Force Bravo ("JTF-B”), in Soto Cano Air Base,

Honduras, between February and August 2012. Investigation revealed evidence that movant took

without authorization Department of Defense ("DOD") classified documents and electronic messages

(emails); then copied and transferred this classified information onto a computer hard drive. (]d:8).

He then transferred the information onto a DVD disc that he took to his residence in Comayagua,

Honduras. (Id.). There, he copied the classified files onto a Synology brand Network Attached

Storage device and encrypted the files. (Id). Movant erased the computer event logs that tracked his

actions. (Id.). On the unclassified computer system of JTF-B, movant not only accessed, copied,

converted, and stole classified materials, he executed a wiretapping and two password revealing

programs. (Id.). The wiretapping program can be used for legitimate system administrator functions,

but also to steal network data in transit, including passwords and other sensitive information. (Id).

In February 2012, movant was hired by Harris Corporation to work as an information technology

("IT") contractor in the role of system administrator at JTF-B in Soto Cano Air Base, and tasked to

implement the Windows 7 operating system on the JTF-B unclassified and classified systems,

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together with other system administrator functions. (Id.).

Executive Order No. 13526, 75 Fed. Reg. 707 (Jan. 5, 2010) defines "classified information" as

information in any form that (1) is owned by, produced by or for, or under the control of the United

States government; (2) falls within one or more of the categories of information set forth in the order,

and (3) is classified by an original classification authority who determines that its unauthorized

disclosure reasonably could be expected to result in damage to the national security. (]d:9). Under

executive order, the designation "SECRET" is applied to information, the unauthorized disclosure of

which could reasonably be expected to cause serious damage to the national security, (id).

Pursuant to executive order, classified information can generally only be disclosed to those persons

who have been granted appropriate level United States government security clearance and possess

a need to know the classified information in connection to their official duties. (]d.:9). As a computer

network system administrator and contractor for Harris Corporation at JTF-B at Soto Cano Air Base,

movant held a SECRET security clearance. As a condition to his security clearance, movant had

signed classified information nondisclosure agreements with the United States, acknowledging that

"unauthorized retention of classified information...could cause damage or irreparable injury to the

United States or could be used to the advantage of a foreign nation." Movant further acknowledged

and agreed in these nondisclosure agreements that he "shall return all classified materials which

have, or may come into my possession...upon the conclusion of my employment or relationship with

the Department or Agency that...provided me access to classified information." (jd).

On Sunday, June 17, 2012, movant went to the JTF-B Network Operations Center ("NOC"), a secure

work area where the computer system administrators worked, (]dj. A forensic examination of a

computer hard drive that movant used at a classified computer terminal at the NOC revealed that on

Sunday, June 17, 2012, movant used his individual assigned JTF-B computer account to sign onto a

JTF-B Secure Internet Protocol Router ("SIPR") computer terminal and create a folder on the SIPR

hard drive labeled "DOCS.” (jd.:10). The DOCS folder contained three sub-folders, containing 18

files, which were created or copies into the folder by movant on or about June 17, 2012. (id.:10). All

of the files, but one contained information classified up to the SECRET level which movant took and

converted from the SIPR email account of another individual who was then the JTF-B Commander.

(Id.). The 17 files were either email messages or email message file attachments and documents

which originated from the JTF-B Commander's SIPR email inbox folder. (Id.). The last file movant

copied onto the DOCS folder consisted of the contents of the JTF-B Commander's entire SIPR email

account called the Microsoft Outlook Personal Storage Table ("PST"), which contained over 1,000

emails, many of which were classified up to the SECRET level. (1<±). The JTF-B Commander

confirmed he never authorized movant to take or otherwise copy his entire SIPR email account or

any email or document within it. (jdj. As a result, movant had no authority to possess, access, or

control the JTF-B Commander's SIPR PST email account or any emails or documents contained

therein. (Id.).

A forensic examination of the SIPR hard drive the movant used on June 17, 2012 revealed that

several minutes after creating the DOCS folder on his classified hard drive, movant unsuccessfully

attempted to burn or otherwise create a DVD disk, but received an error message from the disk

burning software indicating that his access was denied because the SIPR computer terminal he was

using was not authorized to copy or burn classified materials onto removable media such as a DVD.

(Id.). In fact, only two individuals at JTF-B were authorized to do so and had computers that were

authorized to copy classified materials onto removable media. Movant, however, was not one of

them. (]d.). After the first unsuccessful attempt to burn a DVD, movant successfully initiated the

burning of a DVD disk whose volume label was "DOCS" and contained three folders and 18 files.

(Id.). To do so, movant had to disable and override system security protections which had first

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prevented him from creating the DVD. Movant then copied the three subfolders and 18 files

belonging to the JTF-B Commander, including the classified files and entire SIPR PST account onto

the DVD that movant burned. (JdL: 11). Forensic analysis confirmed that the 18 files movant copied

onto the DVD disk were the same files the movant first copied onto the DOCS folder in the SIPR

computer terminal's hard drive that movant used on June 17, 2012, at the JTF-B NOC. (Id: 11).

After burning the classified files onto a DVD, movant tried to delete from the computer system

evidence of the steps he took to copy the JTF-B Commander's classified files and the steps he took

to transfer them onto a DVD. (Id.).

Meanwhile on August 27, 2012, Army investigators and JTF-B personnel seized, as potential

evidence for examination, hard drives from the SIPR classified and unclassified network computers

and associated removable media, such as CD/DVD disks, and hard drives in and around movant's

JTF'B work space. (]d). One hard drive seized was the classified (SIPR) hard drive movant had

used, on or about June 17, 2012, to copy the then JTF-B Commander's classified email messages

and documents. (]d). The DVD that movant had burned on June 17, 2012, containing the JTF-B

Commander's classified documents and emails was not found in movant's work space and was not

located by Army investigators who searched it. (Id.). Movant's employment with Harris Corporation at

JTF-B was terminated in October 2012. (Id.).

On March 11, 2014, Honduran police obtained a warrant to search a house maintained by the

movant in Comayagua, Honduras air base. Qd:11-12). A search of that home revealed that the

movant maintained computers, servers, removable media, and other electronic equipment, including

one Synology brand Network Attached Storage device. (]d12). They also seized numerous DVDs,

one of which contained all of the same classified files that movant burned onto a DVD on June 17,

2012, including the entire classified email account of the former JTF-B Commander and the

classified documents contained in the email account. (Id.). That network device also contained all of

the same classified documents and emails in an encrypted electronic folder, (id.). Movant never

returned the classified files he had copied onto the SIPR computer hard drive, onto the DVD he

burned on June 17, 2012, or onto the Synology Network Attached Storage device to any person

authorized to receive those classified files. (Id.). Neither movant's residence nor the Synology

Attached Storage device were authorized or certified by U.S. government officials to store classified

materials. (Id.).

The classified emails and documents movant copied onto his account in the classified SIPR

computer terminal at JTF-B and which he then burned onto a DVD on June 17, 2012, all constituted

national defense information because they relate to the national defense and movant had reason to

believe they could be used to injure the United States or to the advantage of any foreign nation.

(ld:12). After movant copied the national defense information onto his SIPR account, onto a DVD,

and onto a Synology Network Attached Storage device found in movant's Honduran residence,

movant willfully retained and failed to deliver the national defense information to any officer or

employee entitled to receive it. (Jd.).

Next on April 20, 2007, movant and his second wife, Khadraa A. Glenn ("Khadraa") conspired to

obtain naturalization for Khadraa through a pattern of material false statements, fabrication, and

submission of materially fraudulent documents and fraud perpetrated against U.S. Citizenship and

Immigration Services ("USCIS"). (]d:13). At that time, movant submitted to USCIS a Relative

Immigrant Visa Petition Form 1-130 on behalf of Khadraa stating he had divorced his first wife,

"M.T.A." on December 20, 2006, and then movant and Khadraa had been married on March 23,

2007. (jd). The Form 1-130 sought an immigration visa on behalf of Khadraa, claiming her as

movant's spouse, which was the first step toward the eventual naturalization of Khadraa. (Id).

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Later, Khadraa and movant submitted to USCIS a divorce decree indicating the movant had

divorced M.T.A. on April 22, 2007, not on December 20, 2006. Movant and Khadraa also submitted

to USCIS a marriage certificate dated April 23, 2007, which directly contradicted the statement on

the 1-130 claiming the marriage between the movant and Khadraa took place on March 23, 2007.

(IcL).

In response to a demand from USCIS requiring proof that his purported divorce from M.T.A. in

Jordan was legally valid in order to establish the legality of his subsequent marriage to Khadraa,

movant sent an email message to several email addresses requesting a rental lease for an

apartment in Amman, Jordan, but requiring it to be blank (empty) and in Arabic. (Id.). In fact, in

January 2008, movant emailed Khadraa, requesting that she email alit@yahoo.com and ask that she

send a blank one page, basic rental agreement (lease) from Amman, Jordan in Arabic. (ld.:14).

Zhadraa responded saying she hoped her inquiries were helpful. (JcL). On January 16, 2008, movant

received an email attachment containing a rental agreement lease.doc from an individual with an

email address ziad@ziadcom.com . He then forwarded the attachment to Khadraa, asking her

whether the attachment was "good" and whether she could change it into "Amman, Jordan." (IcL: 14).

After sending Khadraa the lease form, Khadraa responded in February 2008, enclosing two signed

Jordanian lease agreements, each with a corresponding English translation, purporting to show

movant had leased an apartment in Amman, Jordan, from October 2005 until April 26, 2007. (JcL:15).

Thereafter, the movant sent a letter on February 1, 2008, to USCIS, responding to their letter,

explaining that he had leased an apartment in Amman, Jordan from October 2005 until April 26,

2007. (Jd.:15). He attached in support thereof copies of the two lease agreements Khaadra had

obtained for the movant. (IcL). Later in December 2009, Khadraa signed an Application for

Naturalization Form N-400, attaching a purported Jordanian divorce decree dated April 22, 2007, to

attempt to prove that movant had legally divorced his first wife, M.T.A., on April 22, 2007. (Id.:15).

During an April 2010 Google chat, the movant coached Khadraa to lie in her naturalization interview

with USCIS by informing the interviewer that she resided in Honduras with the movant, when in fact,

she resided in Australia. He also counseled Khadraa to deceive the USCIS by purchasing a one-way

ticket to Honduras in order to make it appear as if Khadraa was living with the movant in Honduras.

(Id).

Two months later, in June 2010, movant again coached Khadraa to lie during her naturalization

interview by stating she did not work or reside in Australia, when in fact she did. By letter dated

October 18, 2013, in support of Khadraa's appeal following denial of her security clearance, movant

admitted that Khadraa remained working for an Australian government agency, while the movant

worked in Honduras. (|d). On June 29, 2010, Khadraa completed her naturalization interview and on

July 20, 2010, Khadraa obtained her U.S. citizenship through naturalization. (Id.:16).

B. Procedural History

The movant was charged with, and then entered into a negotiated plea agreement, agreeing to plead

guilty to unauthorized access, willful retention, and failure to deliver national defense information, in

violation of 18 U.S.C. § 793(e) (Count 1), exceeding authorized access to a computer, obtaining

national defense information, and willfully retaining that information, in violation of. 18 U.S.C. §

1030(a)(1) (Count 5), and conspiracy to commit naturalization fraud, in violation of 18 U.S.C. § 371

and § 1425(a). (Cr-DE#s21,1010). Pursuant to the terms of the plea agreement, movant understood

that the sentence would be imposed by the court after considering the advisory, federal sentencing

guidelines. (Cr-DE#101:2). Movant acknowledged that the court could depart from the advisory

guideline range computed, and while required to consider that range, it was not bound to impose a

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sentence within the advisory range, but was permitted to tailor the sentence in light of other statutory

concerns. (kL:2).

The movant also acknowledged that any estimate of the probable sentence to be imposed, whether

from his attorney, the government, or the probation office, was merely a predication, not a promise,

and was not binding on the government, the probation office, or the court. (id:2). He confirmed his

understanding that he could not withdraw his plea based on the court's decision not to accept a

sentencing recommendation made by the parties. (ld.:7-8). He also understood that the court could

impose a statutory maximum of up to 10 years imprisonment as to Counts 1 and 5, and 5 years

imprisonment as to Count 10, followed by a term of up to three years supervised release.

(Cr-DE#101:2).

In exchange for the concessions made by the movant, the government agreed to dismiss all

remaining charges after sentencing, and to recommend up to a 3-level reduction to movant's base

offense level based on his timely acceptance of responsibility. (]d.:1,3). Movant acknowledged he

had the right to prosecute a direct appeal under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. (id.:4). In

exchange for the undertakings made by the government in the plea agreement, movant waived the

right to appeal any sentence imposed, including any restitution order, or to appeal the manner in

which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or

is the result of an upward departure and/or upward variance from the advisory guideline range the

court establishes at sentencing. (Id.:4).

On January 23, 2015, a thorough change of plea proceeding, pursuant to Fed.R.Cr.P. 11, was

conducted by district court. (Cr-DE#175). Careful review of the transcript confirms that after the

movant first gave the oath, he understood that if he made any false representations, they can be

used against him in a prosecution for perjury or making a false statement. (]cL:3). Movant then

provided background information regarding his age and education. (]d.:3-4). Movant affirmed he had

never been treated for a mental illness or for addiction to narcotic drugs. (!d.:4). He denied being

under the influence of any drugs or alcohol during the past 48 hours. (Id.:4). He did not believe he

suffered from any mental or physical condition or illness that prevents him from understanding the

Rule 11 proceedings. (|dj.

Movant acknowledged receipt of a copy of the Second Superseding Indictment, and confirmed

having had an opportunity to fully discuss the allegations contained therein, and the case in general,

with counsel. (Idj4). He further affirmed that he was satisfied with the representation and advice

provided by counsel. (Id.).

Regarding the negotiated, written plea agreement, movant affirmed it was his signature on the plea

agreement, having signed it after reading and discussing it with counsel. (kL5). Movant denied being

forced or threatened by anyone to plead guilty, and stated he was pleading guilty freely and

voluntarily. (lcL6-7). Next, movant acknowledged and confirmed he was pleading guilty to Counts 1,

5, and 10, and the nature and substance of those charges. (jd:7). Movant further affirmed that he

could be sentenced up to 10 years imprisonment as to Counts 1 and 5, for a total sentence of 20

years imprisonment, and then 5 years imprisonment as to Count 10, for a total sentence exposure of

25 years imprisonment, and 3 years supervised release as to each offense, for a total of up to 9

years supervised release. (Id.:8).

Movant acknowledged that the court would reviewrthe PSI and statutory factors when fashioning a

reasonable sentence, but that the court had the authority to sentence the movant up to the statutory

maximum, and that he could not withdraw the plea as a result of the sentence imposed. (jch:9-10).

The court then questioning movant regarding his understanding of the relative paragraphs of the

negotiated plea agreement, (id.: 10-12).

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Movant denied being forced or threatened by anyone to change his plea to guilty. (kl:14,17). Movant

also confirmed that the government had agreed to reduce his guideline range based on movant's

timely acceptance of responsibility. (Id: 14). Movant also understood that his plea agreement

contained a limited appeal waiver. (Id.:17-18). He further confirmed having discussed this right and

stated affirmatively that he was freely and voluntarily giving up that right. (Id.:18).

Next, movant understood that he was also giving up certain constitutional rights by pleading guilty,

including the right to be presumed innocent, to proceed to trial, to be represented by an attorney at

trial, to confront witnesses, to present defense witnesses, and to testify or not on his own defense at

trial. (h±:18-19). He also understood that he was agreeing to give up certain civil rights as a result of

the plea, including the right to vote, to hold public office, to serve on a jury, and to possess any type

of firearm. (Jd:20). If he were not a U.S. citizen, movant understood he could be removed from the

United States, and not permitted to return. (Id.).

Regarding the stipulated factual proffer, movant indicated he had read and discussed it with counsel

prior to signing it. (]d:20-21). Movant acknowledged and confirmed that he understood all of the

facts set forth therein. (jd.:21). He denied being forced or threatened in anyway into signing the

factual proffer. (Jd.:21). Movant confirmed that the stipulated facts support the three charges.

(Jd:22).

When the movant was then asked how he wished to plead to Counts 1, 5, and 10 of the Indictment,

guilty or not guilty, the movant responded, "Guilty, Your Honor." (]cL22). As a result of the foregoing,

the court found the movant was fully competent and capable of entering into an informed plea, that

the movant is aware of the nature of the charge and the consequences of his plea, and that his plea

of guilty is a knowing and voluntary plea, supported by an independent basis in fact, containing each

of the essential elements of the offense. (ki:22). The court further found the movant had knowingly

and voluntarily waived his right to a direct appeal, (id). The court then accepted the plea, and

adjudicated the movant guilty as to Counts 1, 5, and 10 of the Second Superseding Indictment.

(]d:23).

Meanwhile, prior to sentencing, a PSI was prepared which revealed as follows. The guidelines for

Counts 1 and 5, charging a violation of 18 U.S.C. § 793(e), is found in U.S.S.G. § 2M3.2. (PSI 1J42).

The guideline for Count 10, charging a violation of 18 U.S.C. § 371, is found in U.S.S.G. § 2X1.1 and

§ 2L2.1. (Id.). Count 10 is not grouped with the other two offenses because Count 10 represents

separate and distinct harm. (]d). The probation officer determined that the base offense level for the

violation of § 793(e) was the greater of the adjusted offense level and therefore set the offense level

at 34. (PSI 1j57). No reduction was given for acceptance of responsibility because it was determined

that the movant has obstructed justice in the case. (PSI 1J61).

Next, the probation officer determined that movant had a total of zero criminal history points,

resulting in a criminal history category I. (PSI 1f65). Based on a total offense level 34 and a criminal

history category I, the movant's advisory guideline imprisonment range was set at 151 months on the

low end, and 188 months imprisonment at the high end. (PSI 1(101). Statutorily, movant faced a

maximum of 10 years imprisonment as to Counts 1 and 5, and a maximum of 5 years imprisonment

as to Count 10. (PS111100). Movant filed numerous objections to the PSI and a motion for downward

departure. (Cr-DE#s128,136).

On July 31, 2015, the movant appeared for sentencing. (Cr-DE#178). At that time, the government

called Gerald Parsons, an Army counter-intelligence special agent, working for the U.S. Army at Fort

Sam Houston in Texas testified he worked as a senior digital forensic examiner for the U.S. Army.

(jd.:8-10). After giving his education and background information, he explained that a digital forensic

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examiner reviews data contained in cellphones, computers, hard drives, thumb drives, CD, DVD,

removable media and the like. (Id.:10).

He then testified that he examined a hard drive obtained from the SIPR ("Secret Internet Protocol

Routing" network) computer system of the JTF-B from the Soto Cano Air Base in Honduras. (Jd^:14).

After also reviewing the evidence of activities the movant undertook in this case, Parsons concluded

that on the afternoon of June 17, 2012, the movant's account was active on the above computer

system for several hours, and shortly before 2:00 p.m., his account accessed 16 to 17 email files

with attachments of the base commander, Colonel Ross Brown, who was departing, (kb: 15). He then

saved all of Colonel Brown’s SECRET e-mail holdings, both incoming and outcoming, for the

preceding year, in a separate PST file common to Microsoft Outlook. (JcL). He copied 18 e-mail

holdings as a separate PST file, and saved them to a local SIPRnet hard drive and then attempted to

copy them onto a DVD disc. (JdL:16). He further confirmed movant copied all of the emails onto a

folder named "DOCS," which he created on that computer system, (id). The government then

introduced into evidence at sentencing copies of all the files that the movant had copied or otherwise

accessed, all of which had a common theme, dealing with the Middle East, (id: 17-19). Parsons

found the content of the information accessed disturbing because Cano Air Force Base's mission is

Central and South America medical support and humanitarian operations, and had absolutely

nothing to do with the Middle East. (Id.:19).

Next, Parsons determined that after the movant created the PST file and saved it onto the DOCS

folder, he launched a disc copying program called Imgburn to try to copy the DOCS directory, but

was unsuccessful in doing so. (]d:21-22). Movant then attempted using the Imgburn software a

second time to copy the DOCS directory, and this time he successfully copied all of the DOCS

directory onto a DVD disc. (1^:23). After successfully doing so, movant then deleted the three

computer event security logs in the Windows IMF subfolder, so that his log in and log outs of security

related events would not be shown. (|d:24-25).

Parsons also testified that he was present at a debriefing of the movant held on January 20, 2015 in

West Palm Beach, Florida. (1^:28). When the movant was asked how and why he took the JTF-B

Commander's SECRET email account files without authorization, he responded that he was being

proactive, in the event Colonel Brown wanted a copy of them. (Id.:28). Movant also stated that he

had wanted to develop for JTF-B a secure way for personnel to transport classified information from

one point to another, using TrueCrypt to encrypt and then move the classified files, (lch.40-51).

Movant stated he used a government issued laptop computer, belonging to JTF-B, at his home, at

which time he wrote a Macro/script, that invoked TrueCrypt which would automatically copy the

contents of the DVD drive to a folder on his hard drive encrypt it using TrueCrypt, then copy the

encrypted container back to the DVD drive for safe transport. (]d:41). Regarding the erasure of his

log files, movant explained that he did so because his system was "freezing up," since it operates on

Windows XP, and by deleting the log histories, it helps the system operate more effectively.

(]d.:28-29). As to the DVD disc containing the classified files which was found in his residence,

movant explained it must have shown up there accidentally when he swept things off his desk and

into a bag containing work he normally brings home. (]dj.

Parsons next testified that he also examined the Synology storage device recovered from the second

floor of the movant's residence on March 11th. (Id.:31). Using TrueCrypt container encryption

software, the storage device contained encrypted classified files that movant had burned onto a DVD

on June 17th, including Brown's PST file. (|&:32). Examination, however, also revealed that the

movant had modified Colonel Brown's folder two minutes after it had been put on the Synology

device. (1^:32-33). Brown's PST file contained thousands of messages and 352 individual file

attachments. (!d.:33). Parsons further testified that the Synology device did not contain any "script"

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the movant claimed to have developed, nor did any of the other evidence collected from the

movant's work place. (]d.:43). In fact, Parsons testified that TrueCrypt was not authorized to be used

to protect or secure classified information, nor was it an acceptable form of business practice.

(14:43).

Regarding movant's job, Parsons explained that the JTF-B IT department where the movant worked

ran a ticketing service to track jobs for users relating to calls involving monitors that stopped working

or a malfunctioning mouse, etc. (14:51). He was also required to do updates and batches to the

Blackberry enterprise services manager. (Id.:43-51).

More importantly, evidence also showed that someone accessed the classified information on

November 8, 2012, but Parsons could not ascertain who had done so. (14:71-72). Parsons did

confirm that on June 15, 2016, a "remedy ticket" was issued asking the JTF-B system administrator,

Eric Blakely, to copy Colonel Brown's system. (14:75). Colonel Brown, however, denied ever asking

anyone to copy his SIPR account. (14:76). Upon questioning by the court, Parsons explained that in

March 2014, the U.S. Government obtained all evidence, including the Synology network hard drive

seized from the movant in March 2014. (14:77).

The defense called Frank Henry, who testified that he worked with the movant back in June 2012,

while he was in the United States Air Force, during which he spent most of his time as a systems

administrator. (14:87). During the last year and a half, he worked for Harris, a defense contractor,

working for the DOD primarily on drug interdiction, at the Soto Cano Air Force Base in Honduras, as

a technical lead. (14). While he worked with the movant, he never got any indication that the movant

wanted to hurt the United States nor did he believe the movant wanted to commit espionage.

(14:93). He confirmed, however, that the movant did not have a JTF-B laptop issued to him, but he

could have gotten one without Henry knowing about it. (14:114).

At the conclusion of the testimony, and after hearing argument from the parties, the court sustained

the objections to the obstruction of justice enhancement, finding that the movant's conduct in

deleting the log file, and also in taking the information and encrypting and then hiding it in another

database was part of the offense, and not an obstruction. (14141). The court further found that the

movant's lies during debriefing did not obstruct or impede the official investigation or movant's

prosecution. (14:141-42). However, the court did find that the movant was not entitled to the 3-level

reduction for acceptance of responsibility, believing the movant lied as to the reason why he

downloaded Brown's information and then erased the log. (14:142). The court determined movant

had falsely denied or otherwise frivolously contested relevant conduct, and acted in a manner

inconsistent with acceptance of responsibility by lying about specific reasons for his actions.

(14:143). As a result, the movant's total offense level was set to a level 32 and his criminal history

category. (ld.:142-43).

The movant then indicated that he did not want to allocute, but merely wanted the court to consider a

letter he had written in support of mitigation of his sentence. (14:161-62). The court then stated that

he had read the movant's statement, and considered the statements of all parties, the PSI containing

the advisory guidelines, and the 18 U.S.C. § 3553 statutory factors, including the circumstances of

the offense, which the court believes were "very serious," the characteristics of the movant, his

criminal history, and the fact that the sentence imposed must promote respect for the law, provide

just punishment, and afford adequate deterrence to criminal conduct. (14:162-63).

Although the court believed the movant lied to law enforcement and was not deserving of

acceptance of responsibility reductions, because he did plead guilty, the court agreed to vary below

the guideline range slightly in order to give him some benefit for having pleaded guilty, and not

sentence him consistent with the government's recommendation. (14:163). The court, however,

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advised the movant that "betraying your country is one of the most egregious things that a citizen

can do." (id.: 163). The court commented that taking secrets of the government either to harm or

otherwise injure the United States, or to gain profit from it, the end result to the country is "just

despicable." (id: 164). Thereafter, the court sentenced the movant to a total term of 120 months

imprisonment, consisting of two concurrent terms of 120 months as to Counts 1 and 5, and a

concurrent term of 60 months as to Count 10, to be followed by a total of 3 years supervised release,

(id: 164-65). An amended judgment was entered on August 13, 2015, reflecting the sentence

imposed by the court, and to include forfeiture. (Cr-DE#146).

Movant prosecuted a direct appeal, appealing his 120-month term of imprisonment, but the

government moved to dismiss the appeal based on the appeal waiver contained in the plea

agreement. (Cr-DE#181). The movant, however, argued that his appellate waiver no longer applied

because the government breached the terms of the plea agreement by failing to recommend a

sentence adjustment based on acceptance of responsibility. (Cr-DE#181:3). The Eleventh Circuit

granted the government's motion by written Order on April 27, 2016, finding no breach by the

government because the movant had made false statements in his debriefing and objections to the

PSI, regarding the reasons why he cleared the log events, and maintained he downloaded the

information due to a miscommunication with his employees. (]dj3-5). No certiorari review appears to

have been filed.

Consequently, for purposes of the federal one-year limitations period, the judgment of conviction in

the underlying criminal case become final on July 26, 2016, when the 90-day period for seeking

certiorari review elapsed following the conclusion of the movant's direct appeal. Under 28 U.S.C. §

2244(d)(1)(A), a conviction becomes final "by the conclusion of direct review or the expiration of the

time for seeking such rule." In other words, a conviction is final when a judgment of conviction has

been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed

or a petition for certiorari finally denied. Griffith v. Kentucky, 479 U.S. 314, 321, n.6, 107 S. Ct. 708,

Ci3 l FH 7ri R49 M986V See also Puah v. Smith. 465 F.3d 1295, 1295-1300 (11 Cir. _

?n06Vriiscussina Nix v. Sec'v for the Dept. Of Corn. 393 F.3d .1235, (11 Cir. 2004) and Bond_\A

Moore. 309 F.3d 770 (11 Cir. 2002)). Supreme Court Rule 13.1 permits a party to file a petition for a

writ of certiorari in the Supreme Court of the United States within ninety days after the state court of

last resort enters its judgment.

At the latest, the movant was required to file this motion to vacate within one year from the time the

judgment became final, or no later than July 27, 2017. See Griffith v. Kentucky, 479 U.S. 314, 321,

n.6, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1986); see also. See Downs v. McNeil, 520 F.3d 1311, 1318

(11th Cir. 2008Vcitina Ferreira v. Sec'v. Dep't of Corn's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this

Court has suggested that the limitations period should be calculated according to the "anniversary

method," under which the limitations period expires on the anniversary of the date it began to run);

accord United States v. Hurst. 322 F.3d 1256, 1260-61 (10th Cir. 2003); United States v. Marcello,

212 F.3d 1005, 1008-09 (7th Cir. 2000)). Applying the anniversary method to this case means

movant's limitations period is due to expire on July 27, 2017.2

The movant's motion to vacate was filed with this court on April 2, 2017, the date he signed and then

handed the motion to prison authorities for mailing in accordance with the mailbox rule.

(Cv-DE#1:20). Absent evidence to the contrary, the movant's motion is deemed filed, in accordance

with the mailbox rule, on the date he signed it.3

IV. Standard of Review

Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on

final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under § 2255

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if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2)

exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to

collateral attack. §ee-28 U.S.C. § 2255(a); McKavv. United States. 657 F.3d 1190, 1194 n.8 (11th

Cir. 2011). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and

for that narrow compass of other injury that could not have been raised in direct appeal and yvould, if

condoned, result in a complete miscarriage of justice."' Lynn v. United States, 365 F.3d 1225, 1232

(11th Cir. 2004)(citations omitted). It is also well-established that a § 2255 motion may not be a

substitute for a direct appeal. ]d at 1232 (citing United States v. Frady, 456 U.S. 152, 165, 102 S. Ct.

1584 1593 71 L Ed 2d 816 (1982)). The "fundamental miscarriage of justice" exception recognized

in Murray v’. Carrier. 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), provides that it

must be shown that the alleged constitutional violation "has probably resulted in the conviction of one

who is actually innocent..."

The Eleventh Circuit promulgated a two-part inquiry that a district court must consider before

determining whether a movant's claim is cognizable. First, a district court must find that "a defendant

assertfed] all available claims on direct appeal." Frady, 456 U.S. at 152; McCoy v. United States,

266 F.3d 1245, 1258 (11th Cir. 2001); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994).

Second a district court must consider whether the type of relief the movant seeks is appropriate

under Section 2255. This is because "[rjelief under 28 U.S.C. § 2255 is reserved for transgressions

of constitutional rights and for that narrow compass of other injury that could not have been raised in

direct appeal and would, if condoned, result in a complete miscarriage of justice." Lynn. 365 F.3d at

1232-33 (nuotino Richards v. United States. 837 F.2d 965, 966 (11th Cir. 1988)(internal quotations

omitted)).

If a court finds a claim under Section 2255 to be valid, the court "shall vacate and set the judgment

aside and shall discharge the prisoner or Presentence him or grant a new trial or correct the sentence

as may appear appropriate." 28 U.S.C. § 2255. To obtain this relief on collateral review, a petitioner

must "clear a significantly higher hurdle than would exist on direct appeal." Frady, 456 U.S. at 166,

102 S Ct at 1584 (rejecting the plain error standard as not sufficiently deferential to a final

judgment). Under Section 2255, unless "the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief," the court shall "grant a prompt hearing thereon,

determine the issues and make findings of fact and conclusions of law with respect thereto."

However, "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." Schriro v. Landriqan, 550 U.S.

465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). See also Aron v. United States, 291 F.3d 708,

715 (11th Cir. 2002)(explaining that no evidentiary hearing is needed when a petitioner's claims are

"affirmatively contradicted by the record" or "patently frivolous"). As indicated by the discussion

below, the motion and the files and records of the case conclusively show that movant is entitled to

no relief, therefore, no evidentiary hearing is warranted.

In addition, the party challenging the sentence has the burden of showing that it is unreasonable in

light of the record and the § 3553(a) factors. United States v. Dean, 635 F.3d 1200, 1209-1210 (11th

Cir. 201 Inciting United States v. Talley. 431 F.3d 784, 788 (11th Cir. 2005)); see also, United States

v, Bostic. 645 Fed.Appx. 947, 948 (11th Cir. 2016)(unpublished).4 The Eleventh Circuit recognizes

"that there is a range of reasonable sentences from which the district court may choose," and

ordinarily expect a sentence within the defendant's advisory guideline range to be reasonable. United

States v. Tallev. supra.

A. Guilty Plea Principles

It is well settled that before a trial judge can accept a guilty plea, the defendant must be advised of

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the various constitutional rights that he is waiving by entering such a plea. Boykin v. Alabama, 395

U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Since a guilty plea is a waiver of substantial

constitutional rights, it must be a voluntary, knowing, and intelligent act done with sufficient

awareness of the relevant circumstances and likely consequences surrounding the plea. Brady.v,

United States. 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). See also United Statesjw

Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002); Hill v. Lockhart, 474 U.S. 52,

56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Henderson v. Morgan. 426 U.S. 637, 645 n.13, 96 S. Ct.

2253, 49 L. Ed. 2d 108 (1976). To be voluntary and knowing, (1) the guilty plea must be free from

coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must

know and understand the consequences of his guilty plea. United States v. Moriarty, 429 F.3d 1012,

1019 (11th Cir. 2005)(table); United States v. Mosley. 173 F.3d 1318, 1322 (11th Cir. 1999).

After a criminal defendant has pleaded guilty, he may not raise claims relating to the alleged

deprivation of constitutional rights occurring prior to the entry of the guilty plea, but may only raise

jurisdictional issues, United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003), cert, den'd, 540

U.S. 1149, 124 S. Ct. 1146, 157 L. Ed. 2d 1042 (2004), attack the voluntary and knowing character

of the guilty plea, Tollettv. Henderson. 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973);

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

effectiveness of the assistance he received from his attorney in deciding to plead guilty, United

States v. Fairchild. 803 F.2d 1121, 1123 (11th Cir. 1986). To determine that a guilty plea is knowing

and voluntary, a district court must comply with Rule 11 and address its three core concerns:

"ensuring that a defendant (1) enters his guilty plea free from coercion, (2) understands the nature of

the charges, and (3) understands the consequences of his plea." Jdj see also. United States v. Frye,

402 F.3d 1123, 1127 (11th Cir. 2005)(per curiam); United States v. Moriarty, 429 F.3d 1012 (11th

Cir. 2005).5

In other words, a voluntary and intelligent plea of guilty made by an accused person must therefore

stand unless induced by misrepresentations made to the accused person by the court, prosecutor, or

his own counsel. Brady v. United States. 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).

If a guilty plea is induced through threats, misrepresentations, or improper promises, the defendant

cannot be said to have been fully apprised of the consequences of the guilty plea and may then

challenge the guilty plea under the Due Process Clause. See Santobello v. New York, 404 U.S. 257,

92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

B. Ineffective Assistance of Counsel Principles

Because the movant suggests in the motion that counsel rendered ineffective assistance, this Court's

analysis begins with the familiar rule that the Sixth Amendment affords a criminal defendant the right

to "the Assistance of Counsel for his defense." U.S. CONST, amend. VI. To prevail on a claim of

ineffective assistance of counsel, a habeas petitioner must demonstrate both (1) that counsel's

performance was deficient, and (2) a reasonable probability that the deficient performance

prejudiced the defense. Strickland v. Washington. 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984); Harrington v. Richter. 562 U.S. 86, 104, 131 S. Ct. 770, 788, 178 L. Ed. 2d 624

(2011). See also Premo v. Moore. 562 U.S. 115, 121-22, 131 S. Ct. 733, 739-740, 178 L. Ed. 2d 649

(2011); Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284 (2010). If

the movant cannot meet one of Strickland's prongs, the court does not need to address the other

prong. Strickland. 466 U.S. at 697, 104 S. Ct. 2069 (explaining a court need not address both prongs

of Strickland if the defendant makes an insufficient showing on one of the prongs). See also Butcher

v. United States. 368 F.3d 1290, 1293, 95 Fed. Appx. 1290 (11th Cir. 2004); Brown v. United States,

720 F.3d 1316 (11th Cir. 2013).

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To show counsel's performance was unreasonable, a defendant must establish that "no competent

counsel would have taken the action that his counsel did take.' Gordon v. United States, 518 F.3d

1291, 1301 (11th Cir. 2008)(citationsomitted); Chandlery. United States, 218 F.3d 1305, 1315 (11th

Cir. 2000),, With regard to the prejudice requirement, the movant musiestablish that, but for

counsel's deficient performance, the outcome of the proceeding would have been different.

Strickland. 466 U.S. at 694. For the court to focus merely on "outcome determination," however, is

insufficient; ”[t]o set aside a conviction or sentence solely because the outcome would have been

different but for counsel's error may grant the defendant a windfall to which the law does not entitle

him " Lockhart v. Fretwell. 506 U.S. 364, 369-70, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993); Allen v.

SeeV. Fla. Dep't of Corn's, 611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore must establish

"that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Lockhart. 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687).

In the context of a guilty plea, the first prong of Strickland requires petitioner to show that the plea

was not voluntary because he/she received advice from counsel that was not within the range of

competence demanded of attorneys in criminal cases, while the second prong requires petitioner to

show a reasonable probability that, but for counsel's errors, he/she would have entered a different

plea. HE 474 U.S. at 56-59. If the petitioner cannot meet one of Strickland's prongs, the court does

not need to address the other prong. Pinole v. Sec'v for Dep't of Corn's, 480 F.3d 1092, 1100 (11th

Cir.), cert, den'd. 552 U.S. 990, 128 S. Ct. 530, 169 L. Ed. 2d 339 (2007); Holladay v. Haley, 209

F.3d 1243, 1248 (11th Cir.), reh'a and reh'a en banc den'd by. Holladay v. Haley, 232 F.3d 217 (11th

Cir.), cert.'den'd. 531 U.S. 1017, 121 S. Ct. 578, 148 L. Ed. 2d 495 (2000).

However, a defendant's sworn answers during a plea colloquy must mean something. Consequently,

a defendant's sworn representations, as well as representation of defense counsel and the

prosecutor, and any findings by the judge in accepting the plea, "constitute a formidable barrier in

any subsequent collateral proceedings." Blackledqe v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621,52

L. Ed. 2d 136 (1977); United States v. Medlock. 12 F.3d 185, 187 (11th Cir.), cert, den'd, 513 U.S.

864, 115 S. Ct. 180, 130 L. Ed. 2d 115 (1994); United States v. Niles, 565 Fed.Appx. 828 (11th Cir.

May 12, 2014)(unpublished).

A criminal defendant is bound by his/her sworn assertions and cannot rely on representations of

counsel which are contrary to the advice given by the judge. See Scheele v. Staje, 953 So.2d 782,

785 (Fla. 4 DCA2007)("A plea conference is not a meaningless charade to be manipulated willy-nilly

after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is

said and done at a plea conference carries consequences."); lacono v. State, 930 So.2d 829 (Fla. 4

DCA2006)(holding that defendant is bound by his sworn answers during the plea colloquy and may

_npt later assert that he committed perjury during the colloquy because his attorney told him to lie);

United States V. Rogers. 848 F.2d 166, 168 (11th Cir. 1988)(”[W]hen a defendant makes statements

under oath at a plea colloquy, he bears a heavy burden to show his statements were false.").

Moreover, in the case of alleged sentencing errors, the movant must demonstrate that there is a

reasonable probability that, but for counsel's errors, the result of the proceeding would have been

less harsh due to a reduction in the defendant's offense level. Glover v. United States, 531 U.S. 198,

203-04, 121 S. Ct. 696, 148 L. Ed. 2d 604 (2001). A significant increase in sentence is not required

to establish prejudice, as "any amount of actual jail time has Sixth Amendment significance.” Id. at

203.

Furthermore a § 2255 movant must provide factual support for his contentions regarding counsel's

performance. Smith v. White. 815 F.2d 1401,1406-07 (11th Cir.1987). Bare, conclusory allegations,

of ineffective assistance are insufficient to satisfy the Strickland test. See Boyd v. Comm'r, Ala. Dep't

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of Corr's. 697 F.3d 1320, 1333-34 (11th Cir. 2012); Garcia v. United States, 456 Fed.Appx. 804, 807

(11th Cir. 2012) felting Yeck v. Goodwin. 985 F.2d 538, 542 (11th Cir. 1993)); Wilson v. United

States. 962 F.2d 996, 998 (11th Cir. 19921: Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991),

cert, den'd Teiada v. Singletary. 502 U.S. 1105, 112 S. Ct. 1199, 117 L. Ed. 2d 439 (1992), Stano v.

■V Dugger, 901 F.2d 898, 899 (11th Cir. 1990Wcitina Blackledaev. Allison, 431 U.S. 63, 74, 97 S. Ct.

1621, 52 L. Ed. 2d 136 (1977)); United States v. Ross. 147 Fed.Appx. 936, 939 (11th Cir. 2005).

Finally, the Eleventh Circuit has recognized that given the principles and presumptions set forth

above, "the cases in which habeas petitioners can properly prevail... are few and far between."

Chandler. 218 F.3d at 1313. This is because the test is not what the best lawyers would have done or

even what most good lawyers would have done, but rather whether some reasonable lawyer could

have acted in the circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v.

Moore. 221 F.3d 1177, 1180 (11th Cir. 2000). "Even if counsel's decision appears to have been

unwise in retrospect, the decision will be held to have been ineffective assistance only if it was so

patently unreasonable that no competent attorney would have chosen it."' Dingle, 480 F.3d at 1099

fnnntino Adams v. Wainwriaht. 709 F.2d 1443, 1445 (11th Cir. 1983)). The Sixth Circuit has framed

the question as not whether counsel was inadequate, but rather counsel's performance was so

manifestly ineffective that "defeat was snatched from the hands of probable victory." United States .v,.

Morrow. 977 F.2d 222, 229 (6th Cir. 1992).

V. Threshold Issues

A. Timeliness

As narrated previously, the movant filed his initial § 2255 motion was filed on April 13, 2017, and his

addendum on April 19, 2017, less than one year after his conviction became final on November 16,

2016. Since the filings were instituted well before the expiration of the federal one-year limitations

period, they are timely for purposes of the AEDPA, and review of the motion is warranted.

B. Procedural Bar

It is worth noting at the outset that the claims raised herein are procedurally defaulted from review in

this § 2255 proceeding. It is well settled that a motion to vacate, pursuant to 28 U.S.C. § 2255 is not

a substitute for direct appeal, and issues which could have been raised on direct appeal are generally

not actionable in a § 2255 motion and will be considered procedurally barred. Lynn v. United States,

365 F.3d 1225, 1234-1235 (11th Cir. 2004); Bouslev v. United States, 523 U.S. 614, 621, 118 S. Ct.

1604, 140 L. Ed. 2d 828 (1998); McKav v. United States. 657 F.3d 1190, 1195 (11th Cir. 2011). An

issue is "'available' on direct appeal when its merits can be reviewed without further factual

development." Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055).

Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider

the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the

ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is,

alternatively, that he is "actually innocent." Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622

(citations omitted). To show cause for procedural default, a defendant must show that some

objective factor external to the defense prevented [him] or his counsel from raising his claims on

direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lyrm,

365 F.3d at 1235.

As applied here, in his initial motion, the movant has not alleged cause for the procedural default,

much less demonstrated prejudice resulting from his failure to pursue those claims. See United

States v. Fradv. 456 U.S. 152, 167-69, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); McCleskey v. Zant,

499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991); Parks v. United States, 832 F.2d 1244,

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1245-46 (11th Cir. 1987); Campino v. United States. 968 F.2d 187, 188-90 (2d Cir. 1992). Cause for

the default "must be something external to the petitioner, something that cannot be fairly attributed to

him » Coleman v. Thompson. 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1992).

Ignorance or inadvertence by counsel does not constitute "cause" because the attorney is the

movant's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must

"bear the risk of attorney error." ]d. (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639,

91 L. Ed. 2d 397 (1986)). Nevertheless, a meritorious claim of ineffective assistance of counsel can

constitute cause. See United States v. Nvhuis. 211 F.3d 1340, 1344 (11th Cir. 2000). However,

ineffective assistance of counsel claims are generally not cognizable on direct appeal and are

properly raised by a § 2255 motion regardless of whether they could have been brought on direct

appeal. Massaro v. United States. 538 U.S. 500, 503, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003); see

also United States v. Patterson. 595 F.3d, 1324, 1328 (11th Cir. 2010). Movant here has not alleged

in his initial motion cause nor has he shown prejudice to overcome the procedural default of his

claims. Consequently, these claims are barred from review here.

This Court is mindful of the Clisbv6 rule that requires district courts to address and resolve all claims

raised in habeas proceedings, regardless of whether relief is granted or denied. Clisby., 960 F.2d at

935-36 (involving a 28 U.S.C. § 2254 petition filed by a state prisoner); see Rhode v. United States,

583 F.3d 1289, 1291 (11th Cir. 2009) (holding that Clisby applies td,§ 2255 proceedings). However,

nothing in Clisby requires, much less suggests, consideration of claims or arguments raised for the

first time in objections. Therefore, to the extent the movant attempts to raise arguments or

demonstrate cause and prejudice in objections to this Report, the court should exercise its discretion

and refuse to consider the arguments not raised before the magistrate judge in the first instance.7

VI. Discussion

The movant raises three grounds for relief in this federal proceeding, none of which warrant vacatur

of his convictions and sentences, as will be demonstrated in detail below. Further, as was found by

the district court at sentencing, the court should not tolerate the misrepresentations set forth herein,

which are directly contradicted by the movant's sworn statements at the Rule 11 change of plea

proceedings, and which border on the perjurious.

In claim 1, movant asserts that he was denied effective assistance of counsel, where his lawyer,

through his deceptive and/or reckless actions, legal malpractice, bad faith, and breach of contract,

deceived the movant into believing that U.S.S.G. § 2M3.2 would not be applied because the movant

was to be convicted of violating 18 U.S.C. § 793(e), and movant had never transmitted nor

communicated any secrets or defense information to any individual, entity, or government.

(Cv-DE#1:16).

This claim is clearly refuted by the record which reveals that the movant acknowledged at the

thorough Rule 11 change of plea proceeding that it was his signature on the plea agreement. He

further acknowledged pleading guilty to Counts 1, 5, and 10, violations of 18 U.S.C. § 793, and 18

U.S.C. § 1030(a). Movant's suggestion here that counsel somehow tricked or misadvised him that his

sentence would only be calculated and then he would only be sentenced on the lesser offense is

clearly also refuted by the record. As will be recalled, movant was well informed that counsel s

predication or advice was just that, and that the court would not be required to follow any

recommendations provided by the parties. Movant was also cautioned and confirmed his

understanding that he would be unabie to withdraw his plea based on the sentence ultimately

imposed by the court. Furthermore, the court went over specific details of the plea, and movant

acknowledged and confirmed his understanding of the details and conditions contained therein. His

allegations to the contrary here border on the perjurious, and based on the record before this court,

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are totally without merit.

Next, in claim 2, movant asserts that he was denied effective assistance of counsel, where his

lawyer knowingly, willfully, through trickery, concealment, or fraud covered up a material fact

regarding the signature page of the stipulated factual proffer, purposefully concealing and not

presenting to the court the defense's factual proffer. (Cv-DE#1:17-18). Again, this allegation is clearly

unsupported by the record. The court went over the stipulated factual proffer, and the movant

acknowledged his involvement in the offense. He allegation that defense counsel swapped his

signature page on a purported defense stipulated factual proffer, and gave it to the government to

put on its stipulated factual proffer is unsupported by the record and the change of plea proceeding.

Movant continues, as he did during his underlying criminal case, to deny responsibility for his

actions, casting blame on his lawyers and the government in an effort to gain vacatur of his

convictions and resultant sentences. His allegations, however, are disingenuous and incredible.

Finally, in claim 3, movant suggests that counsel committed legal malpractice by coercing him to

change his plea. This claim is also belied by the record, which confirms that the movant's plea was

knowing and voluntary. Further, to the extent he seeks.to raise a legal malpractice claim against

counsel, he may do so, if he so'desires, by filing same with The Florida Bar, but not by way of a §

2255 motion.

Furthermore, the court has combed through the movant's specious allegations regarding the

purported misadvice and ineffectiveness regarding possible defenses, the terms and conditions of

the plea, and the ultimate sentence imposed, are all either waived by the knowing and voluntary

nature of the plea, or belied by the record. Whether or not counsel was paid $190,000 for his legal

fees is not relevant to whether he provided more than able representation under Sixth Amendment

standards. As applied here, had movant gone to trial and been convicted as charged, he would have

faced a much more severe sentence than that which was ultimately imposed by the court. Thus,

movant cannot establish deficient performance or prejudice under Strickland arising from any of the

arguments raised herein. Habeas corpus relief is therefore not warranted and relief must be denied.

Given the court's findings, as narrated previously in this Report, coupled with the appellate court's

determination that no error was shown by the court's determination that the movant was not entitled

to an acceptance of responsibility adjustment, the movant cannot prevail on this claim. Movant

cannot demonstrate either deficient performance or prejudice under Strickland.

■

It is further worth mentioning at this juncture that the movant cannot challenge the lawfulness of this

claim by raising it in terms ineffective assistance of counsel. As will be recalled, the precise

argument regarding the court's failure to award the additional one point reduction, was raised and

rejected on direct appeal on the finding that there was no error and thus the government's motion

seeking dismissal of the appeal was proper. (Cr-DE#181). Thus, any challenge to the sentence

ultimately imposed herein, in the guise of an ineffective assistance of counsel claim, adds nothing of

substance which would justify revisiting the issue. See Ochoa v. United States, 569 Fed. Appx. 843,

846 (11th Cir.), cert, den'd. _ U.S. _, 135 S. Ct. 463, 190 L. Ed. 2d 332 (2014) (citing Rozierv.

United. 701 F.3d 681, 684 (11th Cir. 2012)); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir.

1981); Hobson v. United States. 825 F.2d 364, 366 (11th Cir. 1987)(claim raised and considered on

direct appeal precludes further review of the claim in a § 2255 motion), vacated on other grounds.,

492 U.S. 913, 109 S. Ct. 3233, 106 L. Ed. 2d 581 (19891: United States v. Nyhuis. 211 F.3d 1340,

1343 (11th Cir. 2000); Wahb v. United States. 510 F.2d 1097 (5th Cir. 1975); Belford v. United

States. 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United

States. 26 F.3d 717 (7 Cir. 1994); Graziano v. United States, 83 F.3d 587 (2d Cir. 1996)(Collateral

attack on a final judgment in a criminal case is generally available under § 2255 only for a

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constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that

constitutes a fundamental defect which inherently results in complete miscarriage of justice.);

Boeckenhaupt v. United States. 537 F.2d 1182, 1183 (4th Cir. 1976).

Contrary to the representations herein, the movant has failed to demonstrate that counsel was

ineffective, much less that he suffered prejudice as a result of the purported ineffectiveness.

Consequently, absent a showing of deficient performance and prejudice, movant is entitled to no

relief on this claim. See Matire v. Wainwrioht, 811 F.2d 1430, 1435(11 Cir. 1987). Therefore,

movant is not entitled to any relief on the claims presented herein.

This court is mindful of its responsibility to address and resolve all claims raised in a pro se habeas

petition. See e.o. Clisbv v. Jones. 960 F.2d 925, 936 (11th Cir.1992) (instructing "the district courts to

resolve all claims for relief raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254.") (emphasis added); Williams v. Florida Dept, of Corrections, 391 Fed.Appx. 806, 810 (11th

Cir.2010) (unpublished). However, nothing in Clisbv requires or suggests consideration of claims or

arguments raised for the first time in objections.

The movant is cautioned that he may not raise for the first time in objections to the undersigned's

Report any new arguments or new facts in support of the claims raised herein. Daniel v. Chase Bank

USA. N.A.. 650 F.Supp.2d 1275, 1278 (N.D. Ga. 2009Vcitino Williams v. McNeil, 557 F.3d 1287

(11th Cir. 2009). To the extent the movant attempts to do so, the court should exercise its discretion

and decline to consider them. See Daniel, supra: See Starks v. United States, 2010 U.S. Dist. LEXIS

110806, 2010 WL 4192875 at *3 (S.D. Fla. 2010); United States v. Cadieux, 324 F.Supp. 2d 168

(D.Me. 2004). This is so because "[Pjarties must take before the magistrate, 'not only their best shot

but all of the shots.’" See Borden v. Sec'v of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.

1987Uouotino Sinah v. Superintending Sch. Comm.. 593 F.Supp. 1315, 1318 (D.Me. 1984)).

Finally, when viewing the evidence in this case in its entirety, the alleged errors raised in this

collateral proceeding, neither individually nor cumulatively, infused the proceedings with unfairness

as to deny the movant due process of law. The movant therefore is not entitled to habeas corpus

relief. See Fuller v. Roe. 182 F.3d 699, 704 (9 Cir. 1999)(hoIding in federal habeas corpus

proceeding that where there is no single constitutional error existing, nothing can accumulate to the

level of a constitutional violation), overruled on other grounds. Slack v. McDaniel, 529 U.S. 473, 482,

120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). See also United States v. Rivera. 900 F.2d 1462, 1470

(10 Cir. 1990)(stating that "a cumulative-error analysis aggregates only actual errors to determine

their cumulative effect."). Contrary to the movant's apparent assertions, the result of the proceedings

were not fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.

Ct. 838, 122 L. Ed. 2d 180 (1993).

It also cannot be overlooked that the entry of the guilty plea was clearly in the best interest of the

movant. Because of the plea negotiated by defense counsel, movant benefitted from a downward

variance to the guideline range, and ultimately received a sentence significantly below the statutory

maximum he faced. Had he proceeded to trial and been found guilty, movant's exposure upon

conviction may have been significantly greater.

Under the totality of the circumstances present here, the movant's challenges to his sentence are not

cognizable by way of a motion to vacate, pursuant to 28 U.S.C. § 2255. See Burke v. United States,

152 F.3d 1329, 1331 (11th Cir. 1998) (holding that, "as a threshold inquiry," this Court would consider

whether the prisoner's sentencing claim was cognizable under § 2255); see also. Ayuso v. United

States. 361 Fed.Appx. 988, 990 (11th Cir. 2010).

Finally, it should further be noted that this court has considered all of the movant's arguments raised

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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in his § 2255 motion. (Cv-DE#1). See Dupree v. Warden. 715 F.3d 1295 (11th Cir. 2013)(citing

Clisbv v. Jones. 960 F.2d 925 (11th Cir. 1992)). For all of his claims, movant has failed to

demonstrate he is entitled to vacatur of his conviction and sentence. Thus, to the extent a precise

argument, subsumed within the foregoing ground for relief, was not specifically addressed herein, the

claim was considered and found to be devoid of merit, warranting no discussion herein. To the extent

he attempts to raise new arguments for the first time in his traverse, those claims should be barred.

In conclusion, the record reveals that movant is not entitled to relief on any of the arguments

presented as it is apparent from the extensive review of the record above that movant's guilty plea

was entered freely, voluntarily and knowingly with the advice received from competent counsel and

not involuntarily and/or unknowingly entered. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct.

1709, 23 L. Ed. 2d 274 (1969); Bradv v. United States. 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed.

2d 747 (1970).1 See also Hill v. Lockhart. supra: Strickland v. Washington, supra. 466 U.S. 668

(1984). Moreover, he received a low end of the guideline sentence, well below the statutory

maximum offense of conviction. Consequently, he cannot show error in sentencing and is entitled to

no relief on the claims presented.

VII. Evidentiary Hearing

Movant is also not entitled to an evidentiary hearing on the claims raised in this proceeding. Movant

has the burden of establishing the need for an evidentiary hearing, and he would only be entitled to a

hearing if his allegations, if proved, would establish his right to collateral relief. See Schriro v.

Landriaan. 550 U.S. 465, 473-75, 127 S. Ct. 1933, 167 L. Ed. 2d 836, 1939-40, 127 S. Ct. 1933

(2007)(holding that if record refutes the factual allegations in the petition or otherwise precludes

habeas relief, a district court is not required to hold an evidentiary hearing). See also Townsend v.

Sain. 372 U.S. 293, 307, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Holmes v. United States, 876 F.2d

1545, 1553 (11th Cir. 1989), citing, Guerra v. United States. 588 F.2d 519, 520-21 (5th Cir.

1979)(holding that § 2255 does not require that the district court hold an evidentiary hearing every

time a section 2255 petitioner simply asserts a claim of ineffective assistance of counsel, and

stating: "A hearing is not required on patently frivolous claims or those which are based upon

unsupported generalizations. Nor is a hearing required where the petitioner's allegations are

affirmatively contradicted by the record.").

VIII. Certificate of Appealability

As amended effective December 1, 2009, § 2255 Rule 11(a) provides that "[t]he district court must

issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and

if a certificate is issued "the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court

issues a certificate of appealability. Rules Governing § 2255 Proceedings, Rule 11(b), 28 U.S.C. foil.

§ 2255.

After review of the record, Movant is not entitled to a certificate of appealability. "A certificate of

appealablilty may issue ... only if the applicant has made a substantial showing of the denial of a

constitutional right." id 28 U.S.C. § 2253(c)(2). To merit a certificate of appealability, Movant 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. Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 1595, 146

L. Ed. 2d 542 (2000). See also Eagle v. Linahan. 279 F.3d 926, 935 (11th Cir. 2001). Because the §

2255 motion is clearly time-barred, Movant cannot satisfy the Slack test. Slack, 529 U.S. at 484.

As now provided by Rules Governing § 2255 Proceedings, Rule 11(a), 28 U.S.C. foil. § 2255:

"Before entering the final order, the court may direct the parties to submit arguments on whether a

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certifibate should issue." If there is an objection to this recommendation by either party, that party

may bring this argument to the attention of the district judge in the objections permitted to this report

and recommendation.

IX. Recommendations

Based on the foregoing, it is recommended that the motion to-vacate be DENIED on the merits; that

no certificate of appealability issue; and, that this case be closed.

Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy

of the report.

SIGNED this 10th day of May, 2017.

Is/ Patrick A. White

UNITED STATES MAGISTRATE JUDGE

Footnotes

Rule 4 of the Rules Governing Section 2255 Petitions, provides, in pertinent part, that ”[l]f it plainly

appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the

district court, the judge must dismiss the petition and direct the clerk to notify the petitioner...."

Under Fed.R.Civ.P. 6(a)(1), "in computing any time period specified in ... any statute that does not

specify a method of computing time ... [the court must] exclude the day of the event that triggers the

period],] count every day, including intermediate Saturdays, Sundays, and legal holidays], and]

include the last day of the period," unless the last day is a Saturday, Sunday, or legal holiday. Where

the dates falls on a weekend, the Undersigned has excluded that day from its computation.

"Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is

delivered to prison authorities for mailing." Williams v. McNeil. 557 F.3d 1287, 1290 n.2 (11th Cir.

2009); see Fed.R.App. 4(c)(1)("lf an inmate confined in an institution files a notice of appeal in either

a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system

on or before the last day for filing."). Unless there is evidence to the contrary, like prison logs or other

records, a prisoner's motion is deemed delivered to prison authorities on the day he signed it. See

Washington v. United States. 243 F.3d 1299, 1301 (11th Cir. 2001); Adams v. United States, 173

F.3d 1339 (11th Cir. 1999) (prisoner’s pleading is deemed filed when executed and delivered to

prison authorities for mailing).

"Unpublished opinion are not considered binding precedent, but they may be cited as persuasive

authority." 11th Cir. R. 36-2. The Court notes this same rule applies to other Fed. Appx. cases cited

herein.

In Moriartv. the Eleventh Circuit specifically held as follows:

[t]o ensure compliance with the third core concern, Rule 11(b)(1) provides a list of rights and other

relevant matters about which the court is required to inform the defendant prior to accepting a guilty

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0~d91 3"? C4

plea, including: the right to plead not guilty (or persist in such a plea) and to be represented by

counsel; the possibility of forfeiture; the court's authority to order restitution and its obligation to apply

the Guidelines; and the Government’s right, in a prosecution for perjury, to use against the defendant

any statement that he gives under oath.ld.

Clisbv v. Jones, 960 F.2d 925, 936 (11th Cir.1992).

The petitioner is cautioned that any attempt to provide due diligence in objections to this Report may

not be considered in the first instance by the district court. See Starks v. United States, 2010 U.S.

Dist. LEXIS 110806, 2010 WL 4192875 at *3 (S.D. Fla. 2010); United States v. Cadieux, 324

F.Supp. 2d 168 (D.Me. 2004). This is so because "[Pjarties must take before the magistrate, 'not only

their best shot but all of the shots.’" Borden v. Sec'v of Health & Human Servs., 836 F.2d 4, 6 (1st

Cir. 19871fouotina Singh v. Superintending Scli. Comm.. 593 F.Supp. 1315, 1318 (D.Me. 1984)).

It is well settled that before a trial judge can accept a guilty plea, the defendant must be advised of

the various constitutional rights that he is waiving by entering such a plea. Boykin v. Alabama, 395

U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Since a guilty plea is a waiver of substantial

constitutional rights, it must be a voluntary, knowing, and intelligent act done with sufficient

awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v.

United States. 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). A voluntary and intelligent

plea of guilty made by an accused person who has been advised by competent counsel may not be

collaterally attacked. Mabry v. Johnson. 467 U.S. 504, 508, 104 S. Ct. 2543, 81 L. Ed. 2d 437

(1984).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.