United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner Timothy Rasheed Ceasar's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct a Sentence by a Person in Federal Custody (Doc. 1;
Cr-Doc. 58) and Memorandum of Law in Support (Doc. 2;
Cr-Doc. 59). The United States opposes Ceasar's motion.
(Doc. 8). The Court gave Cesar an opportunity to file a reply
(Doc. 9), but he failed to do so. Because Ceasar is not
entitled to any relief under § 2255, the Court denies
August 2015, a federal grand jury indicted Ceasar for
possessing a firearm and ammunition as a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
(Cr-Doc. 1). He pled guilty under a written plea agreement
while represented by counsel, Thomas DeMine, III. (Cr-Doc.
35; Cr-Doc. 36). The Court accepted Ceasar's plea and set
sentencing for June 15, 2016. (Cr-Doc. 37; Cr-Doc. 38).
United States Probation Office prepared a presentence
investigation report (“PSR”). (Cr-Doc. 51).
Ceasar's base offense level was 20 as he committed the
firearm offense after being convicted of a
“controlled substance offense.” (Cr-Doc. 51 at
¶ 27). The base offense level was increased twice by
four levels because (1) the firearm had an obliterated and
unidentifiable serial number; and (2) Ceasar possessed the
firearm in connection with another felony. (Cr-Doc. 51 at
¶¶ 29-30). After a three-level reduction for
acceptance of responsibility, Ceasar's total offense
level was 25, and his criminal history category was V. This
resulted in an advisory guidelines' range of 100 to 120
months' imprisonment. (Cr-Doc. 57). The Court varied
below the range and sentenced Ceasar to eighty-four months of
imprisonment and thirty-six months of supervised release.
(Cr-Doc. 56; Cr-Doc. 57 at 2). Ceasar did not file a direct
appeal, but he is now seeking to collaterally attack his
conviction and sentence under § 2255. (Doc. 2 at 1).
construing Ceasar's § 2255 motion and memorandum of
law, he moves to vacate his sentence on four grounds. (Doc. 1
at 6-8). Three of the four are ineffective assistance of
counsel claims. He argues that his counsel was ineffective
for (1) not objecting to the Court using his prior drug
conviction to calculate his base offense level; (2) not
objecting to the four-level enhancement for possessing the
firearm in connection with another felony; and (3) not filing
a direct appeal when told to do so. Ceasar's other claim
is that his prior conviction for sale and delivery of cocaine
in violation of Florida Statute § 893.13(1)(a)(1) is not
a “controlled substance offense” under the
guidelines. Ceasar did not waive his right to collaterally
attack his sentence in this plea agreement. (Doc. 8 at 6).
28 U.S.C. § 2255
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 imposed is in violation of the
Constitution . . . or is otherwise subject to attack, may
move the court which imposed the sentence to vacate, set
aside, or correct the sentence.” 28 U.S.C. § 2255.
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. 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 judgment). Ceasar has not cleared this
district court must hold an evidentiary hearing on a motion
to vacate “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief[.]” 28 U.S.C. § 2255(b).
“The prisoner is entitled to an evidentiary hearing if
he alleges facts that, if true, would entitled him to
relief.” Shaw v. United States, ___ Fed.Appx.
___ 2018 WL 1603438, at *1 (11th Cir. Apr. 5, 2018) (citation
omitted); see also Aron v. United States, 291 F.3d
708, 715 n.6 (11th Cir. 2002) (stating “[i]f the
[petitioner's] allegations are not affirmatively
contradicted by the record and the claims not patently
frivolous, the district court is required to hold an
evidentiary hearing”). A hearing is not required,
however, “if a petitioner's claims ‘are
merely conclusory allegations unsupported by specifics, or if
the record refutes the applicant's factual allegations or
otherwise precludes habeas relief.'” Carver v.
United States, -- Fed.Appx. -- 2018 WL 388620, at *3
(11th Cir. Jan. 12, 2018) (citing Allen v. Sec'y,
Fla. Dep't of Corr., 611 F.3d 740, 745 (11th Cir.
be discussed, Ceasar has alleged no facts that entitle him to
relief under § 2255. He makes unsupported allegations of
ineffective assistance of counsel that the record
conclusively refutes. See Shaw, 2018 WL
1603438, at *1 (stating a court need not hold a hearing
“if the allegations are patently frivolous, based upon
unsupported generalizations, or affirmatively contradicted by
the record”). The Court thus need not hold an
here, a petitioner has one year from “the date on which
judgment of conviction becomes final” to file a motion
under § 2255. 28 U.S.C. § 2255(f)(1). Ceasar filed
this motion on June 7, 2017, which was within one year of his
conviction being final. (Doc. 1 at 11). The Government
concedes that Ceasar's motion is timely. (Doc. 8 at 4).
The Court finds so too.
ASSISTANCE OF COUNSEL
Sixth Amendment to the United States Constitution guarantees
criminal defendants the right to effective assistance of
counsel. To prevail on a claim of ineffective assistance of
counsel, the petitioner must show that (1) his counsel's
performance was deficient; and (2) he suffered prejudice
because of the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). These two elements
are commonly referred to as the performance and prejudice
prongs, respectively. See Rojas-Sanchez v.
United States, No. 6:10-cv-991-ORL-19KRS, 2010 WL
4983667, at *3 (M.D. Fla. Dec. 2, 2010) (citation omitted).
If a petitioner fails to show either prong, the court need
not address the other. See Strickland, 466
U.S. at 687. Pertinent here, the Strickland test
also applies “to challenges to guilty pleas based on
ineffective assistance of counsel.” Hill v.
Lockhart, 474 U.S. 52, 58 (1985); cf.
Downs-Morgan v. United States, 765 F.2d 1534, 1539
(11th Cir. 1985) (stating a petitioner must “prove
serious derelictions on the part of counsel sufficient to
show that his plea was not, after all, a knowing and
intelligent act” to be entitled to collateral relief
(internal quotes omitted)).
Strickland's performance prong, the petitioner
must show “that counsel's representation fell below
an objective standard of reasonableness.” 466 U.S. at
688. This means the petitioner “must establish that no
competent counsel would have taken the action that his
counsel did take.” Chandler v. United States,
218 F.3d 1305, 1315 (11th Cir. 2000) (footnoted omitted);
Scott v. United States, 325 Fed.Appx. 822, 824 (11th
Cir. 2009) (stating the petitioner must show “he
received advice from counsel that was not within the range of
competence demanded of attorneys in criminal cases”).
there is a “strong presumption in favor of competence,
” the petitioner bears a heavy burden of persuasion.
Chandler, 218 F.3d at 1315 (footnote omitted). A
court's review of counsel's performance is
“highly deferential, ” and courts “must