United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
case is before the Court on Petitioner Samuel Franklin
Crews's Verified Amended Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 15,
Amended Motion to Vacate) and Memorandum of Law in Support (Civ.
Doc. 12, Memorandum). The United States has responded (Civ.
Doc. 26, Response), and Crews has filed a reply (Civ. Doc.
35, Reply). The case is ripe for a decision.
to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing
Section 2255 Proceedings, the Court has considered the need for
an evidentiary hearing and determines that an evidentiary
hearing is not necessary to resolve the merits of the claims
Crews is pursuing in this action. See Aron v. United
States, 291 F.3d 708, 714-15 (11th Cir. 2002) (an
evidentiary hearing on a § 2255 petition is not required
when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently
frivolous, or if in assuming the facts that he alleges are
true, he still would not be entitled to any relief);
Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.
1982) (“On habeas a federal district court need not
conduct an evidentiary hearing if it can be conclusively
determined from the record that the petitioner was not denied
effective assistance of counsel.”); Patel v. United
States, 252 Fed.Appx. 970, 975 (11th Cir.
2007). For the reasons set forth below,
Crews's Amended Motion to Vacate is due to be denied.
December 18, 2013, a grand jury sitting in the Middle
District of Florida indicted Crews on three counts of
receiving child pornography, in violation of 18 U.S.C.
§§ 2252(a)(2) and 2252(b)(1). (Crim. Doc. 1,
Indictment). Following his arrest, Crews moved to suppress
incriminating statements he had made to law enforcement,
claiming they were taken in violation of the Fifth Amendment
and Miranda v. Arizona, 384 U.S. 436 (1966). (Crim.
Doc. 26, Motion to Suppress). A United States Magistrate
Judge conducted an evidentiary hearing on the Motion to
Suppress on July 17, 2014. (Crim. Doc. 54, Suppression
Hearing Transcript, Volume I; Crim. Doc. 56, Suppression
Hearing Transcript, Volume II). After the hearing, the
Magistrate Judge issued a report and recommendation, in which
he recommended that the Court deny the Motion to Suppress.
(Crim. Doc. 58, Report and Recommendation). Crews did not
file objections to the Report and Recommendation, and after
review, the Court adopted it and denied the Motion to
Suppress. (Crim. Doc. 68, Order Denying Motion to Suppress).
Crews pled guilty to Count Two of the Indictment under a
written plea agreement. (Crim. Doc. 81, Plea Agreement; Crim.
Doc. 99, Change of Plea Transcript [“Plea Tr.”]).
Crews admitted that he knowingly searched for and downloaded
images of child pornography on his computer via the internet.
Plea Agreement at 2, 14-20; Plea Tr. at 18-24, 24-26. In
exchange for his guilty plea, the United States agreed to
dismiss Counts One and Three of the Indictment, id.
at 3, ¶ 4, and to recommend as much as a three level
reduction for acceptance of responsibility under § 3E1.1
of the United States Sentencing Guidelines, id. at
3-4, ¶ 6. When entering his guilty plea before the
Magistrate Judge, Crews stated under oath that he pled guilty
because he was in fact guilty, and that he did so knowingly
and voluntarily. Plea Tr. at 17, 26-27; see also
Plea Agreement at 11-12, ¶¶ 9-10. Crews agreed that
by pleading guilty, he waived the right to challenge the
manner in which the government obtained any statement or
evidence against him. Plea Tr. at 7. Crews further stated
that he was satisfied with his attorney and the way his
attorney had represented him. Plea Tr. at 27. Satisfied with
the plea colloquy, the Court accepted Crews's plea of
guilty and adjudicated him as such. (Crim. Doc. 84,
Acceptance of Plea).
sentencing hearing, the Court determined that Crews's
total offense level was 34 and his criminal history category
was II, yielding an advisory sentencing range of 168 to 210
months in prison under the Sentencing Guidelines. (Crim. Doc.
97, Sentencing Transcript [“Sent. Tr.”] at 5).
After hearing argument from the United States and Crews, the
Court varied significantly below the Guidelines range and
imposed a sentence of 92 months in prison. Id. at
40; (Crim. Doc. 93, Judgment). Crews did not file a notice of
The Amended Motion to Vacate 
initially raised three grounds in his Amended Motion to
Vacate. In Ground One, Crews alleges that his counsel,
Stephen Mosca, gave ineffective assistance by failing to file
a requested notice of appeal. Amended Motion to Vacate at 6.
The Court determined that an evidentiary hearing was
warranted to resolve this claim and referred the claim to the
assigned Magistrate Judge to conduct such a hearing and
prepare a report and recommendation as to the resolution of
the claim in Ground One. (Civ. Doc. 36, Order Referring
Ground One for Evidentiary Hearing). However, after
consulting his Court-appointed lawyer, Crews moved to
withdraw this claim. (Civ. Doc. 48). The Court granted the
Motion to Withdraw Ground One, and as such the Court will not
address it further. (Civ. Doc. 49, Order Dismissing Ground
One). In Ground Two, Crews asserts three subclaims: he
alleges that counsel was ineffective because he (a)
“affirmatively misrepresent[ed] to Petitioner that the
Petitioner's forensic computer expert would not provide
favorable testimony concerning the Petitioner's primary
defense that the child pornography files found in the
unallocated space of the hard drive of Petitioner's
computer did not have metadata to establish the
government's purported proof concerning the dates when
the child pornography was viewed and deleted”; (b)
failed to file objections to the Report and Recommendation on
the Motion to Suppress; and (c) advised Crews to plead guilty
despite Crew's claims of actual innocence, “even if
it would require Petitioner to falsely admit guilt at the
change of plea hearing.” Amended Motion to Vacate at
8-9. Additionally, in Ground Three Crews asserts that counsel
was ineffective because he “failed to comply with
Petitioner's request to file a motion to withdraw his
guilty plea due to actual innocence.” Id. at
United States opposes the Amended Motion to Vacate. In
particular, the United States counters that the transcripts
of the plea colloquy and the sentencing hearing refute
Crews's professions of innocence. The United States also
responds that Crews has provided nothing to corroborate the
claim that his computer forensic expert, Richard Connor, was
prepared to testify favorably for him or that counsel misled
Crews regarding Connor's opinion. As such, the United
States asserts that the Court should deny the Amended Motion
to Title 28, United States Code, Section 2255, a person in
federal custody may move to vacate, set aside, or correct his
sentence. Section 2255 permits such collateral challenges on
four specific grounds: (1) the imposed sentence was in
violation of the Constitution or laws of the United States;
(2) the court did not have jurisdiction to impose the
sentence; (3) the imposed sentence exceeded the maximum
authorized by law; or (4) the imposed sentence is otherwise
subject to collateral attack. 28 U.S.C §2255(a) (2008).
Only jurisdictional claims, constitutional claims, and claims
of error that are so fundamentally defective as to cause a
complete miscarriage of justice will warrant relief through
collateral attack. United States v. Addonizio, 442
U.S. 178, 184-86 (1979). A petitioner's challenge to his
sentence based on a Sixth Amendment claim of ineffective
assistance of counsel is normally considered in a collateral
attack. United States v. Teague, 953 F.2d 1525, 1534
n. 11 (11th Cir. 1992).
any Sixth Amendment ineffective assistance of counsel claim,
a § 2255 petitioner must demonstrate both: (1) that his
counsel's conduct amounted to constitutionally deficient
performance, and (2) that his counsel's deficient
performance sufficiently prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994).
In determining whether the petitioner has satisfied the first
requirement, i.e. that counsel performed deficiently, the
Court adheres to the standard of reasonably effective
assistance. Weeks, 26 F.3d at 1036. The petitioner
must show, in light of all the circumstances, that
counsel's performance fell outside the “wide range
of professionally competent assistance.” Id.
To satisfy the second requirement, that counsel's
deficient performance prejudiced the defendant, the
petitioner must show that there is a reasonable probability
that, but for counsel's error, the result of the
proceeding would have been different. Id. at 1036-37
(citing Strickland, 466 U.S. at 694). In determining
whether a petitioner has met the two prongs of deficient
performance and prejudice, the Court considers the totality
of the evidence. Strickland, 466 U.S. at 695.
However, because both prongs are necessary, “there is
no reason for a court… to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”
Id. at 697; see also Wellington v. Moore,
314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not
discuss the performance deficiency component of
[petitioner's] ineffective assistance claim because
failure to satisfy the prejudice component is
Subclaim One: Counsel's Alleged Ineffectiveness in
Misrepresenting to Crews Whether His Computer Forensic Expert
Would Provide Favorable Testimony
to his sworn statements at the plea colloquy, Crews now
claims that he is actually innocent, and that the child
pornography on his computer must have belonged to the
computer's previous owner, not him. Memorandum at 6, 7.
Crews claims that a computer forensics expert, Richard
Connor, would have testified in support of this theory.
According to Crews, Connor would have testified that the FBI
had no way to prove that the pornographic files in
unallocated space on Crews's hard drive wound up there as
a result of deletions he made while the computer was in his
custody. Id. at 6. Crews claims his attorney told
him one month before trial, however, that Connor had recanted
his opinion, and that he could not refute the FBI's
forensic evidence. Id. Crews states that two weeks
before he filed the Amended Motion to Vacate,
he learned … from Mr. Connor that he did not recant
his proposed testimony to Mr. Crews's counsel and that he
was still of the opinion that the incriminating data
concerning titles and dates of deletion of the child
pornography files could not have been extracted from the
unallocated space of the hard drive as stated by the
Id. at 6-7. As a result, Crews claims that his
counsel misrepresented Connor's opinion to him, causing
him to plead guilty when he was actually innocent.
Id. at 7. Notably though, Crews has never presented
any affidavit, statement, report, or other evidence to
corroborate this allegation, despite his claim of receiving
communication directly from Connor just two weeks before
filing the Amended Motion to Vacate.
claim fails because it has no evidentiary support and is
refuted by the record. Crews's claim that Connor would
have testified in support of his theory of innocence, and
that Connor contacted him to deny recanting his opinion, is
unsubstantiated. Crews provides no statement or affidavit
from Connor to support the claim. Crews does not even attach
the communication he allegedly received from Connor just two
weeks before he filed the Amended Motion to Vacate. Thus, the
allegation lacks credibility as it consists only of
Crews's self-serving statements, void of any independent
verification. See Andrews v. United States, 634
Fed.Appx. 259, 262 (11th Cir. 2015) (affirming denial of
defendant's motion for new trial where the allegations in
his affidavit were not substantiated by any objectively
credible source) (citing United States v. Calderon,
127 F.3d 1314, 1354 (11th Cir. 1997)); see also United
States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)
(“[E]vidence about the testimony of a putative witness
must generally be presented in the form of actual testimony
by the witness or on affidavit. A defendant cannot simply
state that the testimony would have been favorable;
self-serving speculation will not sustain an ineffective
Crews's claim that he was actually innocent, and
therefore would not have pled guilty but for counsel
misrepresenting Connor's opinion, is contradicted by the
record. While under oath at the plea colloquy, Crews stated
that he pled guilty because he was in fact guilty. Plea Tr.
at 17; see also Plea Agreement at 12, ¶ 10.
Crews admitted that he used specific search terms to seek out
and download child pornography, that he viewed such files,
and that he later deleted them. Plea Tr. at 18-24; Plea
Agreement at 16-20. When the government finished reading the
factual basis, Crews stated he had no disagreement with it.
Plea Tr. at 24. Crews further admitted that his actions
satisfied each of the elements of the offense of receiving
child pornography. Plea Tr. at 24-26; Plea Agreement at
14-15. When asked whether he was pleading guilty knowingly
and voluntarily, Crews affirmed that he was, and that he had
not been coerced or induced into doing so. Plea Tr. at 26-27.
Thus, the record affirmatively refutes Crews's claim that
he was actually innocent, and that he pled guilty only
because his attorney told him that Connor had recanted his
prisoner often “has everything to gain and nothing to
lose from filing a collateral attack upon his guilty
plea.” Blackledge v. Allison, 431 U.S. 63,
71-72 (1977). Therefore, to preserve the certainty and
efficiency of plea bargaining, “the representations of
the defendant, his lawyer, and the prosecutor at [a plea]
hearing, as well as any findings made by the judge accepting
the plea, constitute a formidable barrier in any subsequent
collateral proceedings.” Id. at 73-74. Indeed,
“there is a strong presumption that the statements made
during the plea colloquy are true.” United States
v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir.
1987). “The subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary
dismissal, as are contentions that in the face of the record
are wholly incredible.” Blackledge, 431 U.S.
at 74. A prisoner who has made statements at a plea colloquy
“‘bears a heavy burden to show his statements
were false.'” Winthrop-Redin v. United
States, 767 F.3d 1210, 1217 (11th Cir. 2014) (quoting
United States v. Rogers, 848 F.2d 166, 168 (11th
Cir. 1988)). Crews's incredible and unverified
allegations fall far short of demonstrating that his sworn
statements at the plea colloquy were untrue. Regardless of
what counsel might have told Crews about Connor's
opinion, Crews's statements under oath show that he
knowingly and freely pled guilty because he had in fact
committed the crime alleged in Count Two of the Indictment.
Thus, subclaim one of Ground Two does not merit relief.
Subclaim Two: Whether counsel was ineffective for failing to
file objections to the Report and Recommendation on the
Motion to Suppress
Subclaim Two of Ground Two, Crews alleges that counsel gave
ineffective assistance by failing to timely file objections
to the Report and Recommendation on his Motion to Suppress.
As noted before, Crews moved to suppress inculpatory
statements he made to the police, alleging they were taken in
violation of Miranda and the Fifth Amendment.
Following a suppression hearing, a Magistrate Judge issued a
Report and Recommendation, in which he recommended that the
Motion to Suppress be denied. The record reflects that
counsel did not file objections to the Report and
Recommendation. After review, the Court adopted the
Magistrate Judge's recommendation and denied the Motion
to Suppress. In support of the claim for relief, Crews
submitted a letter from counsel in which counsel acknowledges
that he missed the deadline for filing objections to the
Report and Recommendation. (Civ. Doc. 4-2, Letter from
prisoner can prove that counsel gave ineffective assistance
if his attorney unreasonably failed to move to suppress
evidence (or in this case, failed to file objections to a
Report and Recommendation on the motion). See Kimmelman
v. Morrison, 477 U.S. 365, 374-75 (1986). To do so, the
prisoner must show three things: (1) that a constitutional
violation actually occurred, such that the motion to suppress
or objections would have had merit, (2) that it was
objectively unreasonable for counsel not to file the motion
to suppress (or objections), and (3) that there is a
reasonable probability the outcome of the case would have
been different absent the excludable evidence. See
id. at 375, 382. If no constitutional violation occurred,
then a defendant was not prejudiced by counsel's failure
to file the motion or objections. See Castillo v. United
States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing
Kimmelman, 477 U.S. at 375).
the Court assumes that counsel performed deficiently by
missing the deadline to file objections to the Report and
Recommendation. Nevertheless, Crews is not entitled to relief
for two reasons. First, Crews proceeded to plead guilty after
counsel missed the deadline to file objections. A knowing and
voluntary guilty plea “waives all nonjurisdictional
challenges to the constitutionality of the conviction,
” including a claim of pre-plea ineffective assistance
of counsel. Wilson v. United States, 962 F.2d 996,
997 (11th Cir. 1992). Here, the record of the plea colloquy
shows that Crews knowingly and voluntarily pled guilty, after
having been thoroughly advised of his rights, the charges,
and of the nature and consequences of pleading guilty.
See Plea Tr. at 5-27. Crews specifically
acknowledged that by pleading guilty he waived the right to
challenge the manner in which the government obtained any
evidence or statement against him. Id. at 7. In
other words, Crews pled guilty aware that doing so meant he
waived any further argument that the government illegally
obtained his statements. The instant claim regarding
counsel's failure to preserve the suppression issue
“is not about his decision to plead guilty.”
Wilson, 962 F.2d at 997; see also McMann v.
Richardson, 397 U.S. 759, 770 (1970) (attorney's
misjudgment about the admissibility of the defendant's
confession did not invalidate a guilty plea that was
otherwise based on competent advice). Indeed, nothing about
counsel's failure to file objections to the Report and
Recommendation negates Crews's sworn statements at the
plea colloquy reflecting that his plea was a free and
informed choice, and that he did so because he was indeed
guilty. See Plea Tr. at 17, 26-27.Therefore,
Crews's knowing and voluntary guilty plea waives his
ineffective assistance claim regarding counsel's failure
to follow through on the Motion to Suppress.
Crews is not entitled to relief because he has failed to
establish that counsel's failure to file objections
prejudiced him. The Magistrate Judge recommended that the
Court deny the Motion to Suppress because Crews was not in
custody for purposes of Miranda when he made
incriminating statements to police officers. Report and
Recommendation at 7-15. While police initially entered
Crews's residence forcefully with their weapons drawn,
and the officers briefly handcuffed him, the evidence
established that this was done to protect the officers'
safety only while they executed the search warrant.
Id. at 10. After the officers finished executing the
warrant, but before they asked Crews any questions, the
officers un-handcuffed Crews and informed him he was not
under arrest. Id. at 10-11. The Magistrate Judge
recommended that Crews was not in custody at the time he
made the incriminating statements because he was not
handcuffed, he had agreed to speak to the police, he had been
advised he was not under arrest, he was interviewed for less
than an hour, and he was interviewed in the front seat of an
unmarked, unlocked government vehicle just outside his
residence. Id. at 10-14. Nowhere in the Amended
Motion to Vacate, the Memorandum, or the Reply does Crews
address how the Magistrate Judge's findings of fact and
conclusions of law were erroneous. Nor was the Magistrate
Judge's analysis in the Report and Recommendation
erroneous, as reflected by the fact that the Court adopted
the recommendation following an independent review of the
record. See generally Order Denying Motion to
requires that a defendant establish the existence of a
constitutional violation as a threshold matter. 477 U.S. at
375. A lawyer's failure to litigate a motion to suppress
is not prejudicial if no constitutional violation occurred in
the first place. See Castillo, 816 F.3d at 1303.
Crews provides no basis to support a conclusion that the
Report and Recommendation was incorrect or that his
objections would have prevailed even had counsel filed
them. Indeed, he does not even state what his
objections would have been. In other words, Crews has made no
showing that a Miranda violation occurred and that
his statements would have been excluded had counsel filed any
objections. Accordingly, Crews is not entitled to relief on
Subclaim Three: Whether counsel advised Crews to falsely
admit guilt at the plea colloquy, despite ...