United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
Tauri Griffin (Petitioner or Griffin) initiated this action
by filing a Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 on September 14, 2016.
(Doc. 1). The United States filed a Motion to
Dismiss (Doc. 10), which the Court construes as a response to
the § 2255 motion, on December 13, 2016 (Doc. 10).
Griffin filed a reply on March 20, 2017 (Doc. 14). For the
following reasons, Petitioner's motion is denied.
November 13, 2013, a federal grand jury in Fort Myers,
Florida returned a nine-count Indictment charging Petitioner
with possession of cocaine and cocaine base with intent to
distribute, possession of a firearm by a convicted felon, and
possession of firearms in furtherance of a drug-trafficking
offense. (Cr. Doc. 1). The Indictment lists seven
prior felony convictions, all from the state of Florida:
three convictions for sale of cocaine within 1, 000 feet of a
place of worship in violation of Fla. Stat. § 893.13,
three convictions for possession of cocaine with intent to
distribute in violation of Fla. Stat. § 893.13, and one
conviction for grand theft. (Id.) Petitioner pleaded
guilty to Counts 1, 2, 3, 4, 5, 7, and 8, and the Court, upon
the Government's request, dismissed Counts 6 and 9. (Cr.
Doc. 62). Griffin acknowledged in the plea agreement and
during the plea colloquy that he understood that the Armed
Career Criminal Act would apply to increase the mandatory
minimum sentence for Counts 1, 4, and 7 to fifteen years, and
the maximum penalties that could apply. (Cr. Doc. 39, ¶
Presentence Investigation Report (“PSR”), it was
recommended that Petitioner be classified as an armed career
offender based in part upon his convictions for selling,
manufacturing, or delivering a controlled substance within 1,
000 feet of a place of worship and using a firearm in
connection with the offense (Cr. Doc. 46, ¶¶
had a recommended criminal history category of VI, based upon
his criminal history and his career offender status, and he
faced a United States Sentencing Guidelines imprisonment
range of 292 to 365 months (Id. at ¶¶ 56,
sentencing, the Court found Petitioner to be a career
offender and adopted the PSR's advisory guidelines range.
(Cr. Doc. 68). Petitioner was sentenced to 300 months in
prison, to be followed by a term of supervised release.
(Id.) Griffin appealed his sentence (Cr. Doc. 64).
On June 25, 2015, the Eleventh Circuit granted the
Government's motion to dismiss the appeal based on the
appeal waiver in Griffin's plea agreement (Cr. Doc. 77).
timely § 2255 motion raises five grounds for relief, all
based upon ineffective assistance of counsel. (Docs. 1, 14).
The United States argues in response that by pleading guilty
Griffin agreed to waive his right to collaterally attack his
sentence; that Petitioner is procedurally defaulted on his
claims; that Petitioner qualifies as an armed career
criminal; and the Petition otherwise fails on the merits.
28 U.S.C. § 2255 provides federal prisoners with an
avenue for relief under limited circumstances:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to attack, may move the court which
imposed the sentence to vacate, set aside or correct the
28 U.S.C. § 2255(a). If a court finds a claim under
§ 2255 to be valid, the 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.” Id. at §
2255(b). To obtain this relief on collateral review, a
petitioner must clear a significantly higher hurdle than
would exist on direct appeal. See United States v.
Frady, 456 U.S. 152, 166 (1982) (rejecting the plain
error standard as not sufficiently deferential to a final
§ 2255(b), 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.” The Eleventh Circuit Court of Appeals has
explained, “[a] habeas corpus petitioner is entitled to
an evidentiary hearing on his claim ‘if he alleges
facts which, if proven, would entitle him to
relief.'” Smith v. Singletary, 170 F.3d
1051, 1053 (11th Cir. 1999) (quoting Futch v.
Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989)). 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. Landrigan, 550 U.S. 465, 474 (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).
because each of the claims raised in the § 2255 motion
is either time-barred, procedurally barred, contrary to law,
or affirmatively contradicted by the record, an evidentiary
hearing is not required. See Holmes v. United
States, 876 F.2d 1545, 1553 (11th Cir. 1989) (“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.”).
Court first addresses the Government's argument that
Petitioner waived his right to collaterally attack his
sentence - and easily rejects this argument. Although the
Government argues that a § 2255 motion falls within the
scope of the appeal waiver contained within the plea
agreement, a review of the waiver shows this is not the case:
The defendant agrees that this Court has jurisdiction and
authority to impose any sentence up to the statutory maximum
and expressly waives the right to appeal defendant's
sentence on any ground, including the ground that the Court
erred in determining the applicable guidelines range pursuant
to United States Sentencing Guidelines, except (a) the
grounds that the sentence exceeds the defendant's
applicable guidelines range as determined by the Court
pursuant to the United States Sentencing Guidelines; (b) the
ground that the sentence exceeds the statutory maximum
penalty; or (c) the ground that the sentence violates the
Eighth Amendment to the Constitution; provided, however, that
if the government exercises its right to appeal the sentence
imposed, as authorized by 18 U.S.C. § 3742(b), then the
defendant is released from his waiver and may appeal the
sentence as authorized by 18 U.S.C. § 3742(a).
(Cr. Doc. 39, ¶ 7) (emphasis in original). During the
plea colloquy the Magistrate Judge stated: “Under this
plea agreement, however, you give up and waive your right to
appeal or otherwise challenge the sentence which is imposed
upon you, except in certain specific circumstances.”
(Cr. Doc. 73, 21:15-19).
Court finds that although Petitioner did waive his right to
direct appeal, he did not agree to waive his right to
collaterally attack his sentence. Other than the cursory
argument that the right to collaterally attack the sentence
is within the scope of the waiver, the Government does not
otherwise explain how this is so, and the Court will not
construe the plea agreement in favor of the Government at the
expense of ...