United States District Court, M.D. Florida, Jacksonville Division
REPORT AND RECOMMENDATION 
R. KLINDT UNITED STATES MAGISTRATE JUDGE
Elgin Mays (“Petitioner”), proceeding pro
se, filed a Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Doc. No. 1; “§ 2255 Motion”) on
April 20, 2015. The Government filed a response in opposition
on November 5, 2015. See United States' Response
in Opposition to Petitioner's Pro Se 28 U.S.C.
§ 2255 (Doc. No. 9). Petitioner claims in Ground One of
the § 2255 Motion that his trial counsel refused to file
a requested appeal. § 2255 Motion at
February 5, 2018, the Honorable Marcia Morales Howard, United
States District Judge, entered an Order directing that the
undersigned conduct an evidentiary hearing consistent with
the applicable law of the United States Court of Appeals for
the Eleventh Circuit and issue a report and recommendation
with regard to the issue raised in Ground One. See
Order Referring Motion for Evidentiary Hearing (Doc. No. 11),
signed February 5, 2018 and entered February 6, 2018.
February 8, 2018, consistent with Judge Howard's
direction, the undersigned appointed Paul A. Shorstein,
Esquire to represent Petitioner. See Order (Doc. No.
12), signed February 8, 2018 and entered February 9, 2018. In
the same Order appointing Mr. Shorstein, the undersigned set
a status hearing for February 13, 2018. See id. At
the February 13, 2018 hearing, a second status hearing was
set for March 1, 2018. See Clerk's Minutes (Doc. No.
13); see also Order (Doc. No. 14), entered February
14, 2018. The second status hearing was held as scheduled,
and Petitioner was present with counsel. See
Clerk's Minutes (Doc. No. 15). After hearing from all
interested parties, the evidentiary hearing was set for March
21, 2018. See id.; see also Order (Doc. No.
16), entered March 2, 2018.
March 21, 2018 evidentiary hearing, two witnesses testified.
See Clerk's Minutes (Doc. No. 17); Transcript
(Doc. No. 18; “Tr.”), filed April 18, 2018, at 2.
Petitioner testified on his own behalf. Tr. at 2;
see Tr. at 6-76. Sylvia Irvin, Esquire (“Ms.
Irvin”), Petitioner's counsel in the underlying
criminal case, was called as a witness by the Government. Tr.
at 2; see Tr. at 77-109. No. exhibits were received
into evidence. Tr. at 2. The matter is now ripe for decision.
Procedural History of Criminal Case
was charged on July 18, 2012 in a three-count indictment with
distribution of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) (Count One and Count
Two) and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and (e) (Count
Three). See Indictment (Crim. Doc. No. 1). Normally,
18 U.S.C. § 922(g)(1) carries a maximum term of
imprisonment of ten years. Here, however, the Indictment
alleged various prior convictions that qualified Petitioner
as an armed career criminal under the Armed Career Criminal
Act (“ACCA”). See Indictment at 2-4; 18
U.S.C. § 924(e). Petitioner was thus subject to a
fifteen-year mandatory minimum term of imprisonment and a
maximum term of life imprisonment. See 18 U.S.C.
September 13, 2012, Petitioner made his initial appearance,
and he requested court-appointed counsel. See
Clerk's Minutes (Crim. Doc. No. 6; “Initial
Appearance Minutes”); Oral Motion to Appoint Counsel
(Crim. Doc. No. 7). Petitioner was found to be indigent, and
the Federal Public Defender was appointed to represent him.
See Initial Appearance Minutes; Order (Crim. Doc.
No. 10), entered September 13, 2012. Ms. Irvin, an Assistant
Federal Public Defender, filed a Notice of Appearance (Crim.
Doc. No. 12) on September 17, 2012. On September 18, 2012,
Petitioner was arraigned with Ms. Irvin present, and he
pleaded not guilty to all three counts charged in the
indictment. See Clerk's Minutes (Crim. Doc. No.
14; “Arraignment Minutes”). At the arraignment,
Petitioner moved to obtain the criminal history portion of
the Pretrial Services Report, and the Court granted the
motion. Arraignment Minutes at 2; Order (Doc. No. 18),
entered September 19, 2012.
August 15, 2013, pursuant to a written plea agreement
(“Plea Agreement”), Petitioner pleaded guilty to
Count Three in exchange for, among other things, the
dismissal of Counts One and Two. See Clerk's
Minutes (Crim. Doc. No. 35); Plea Agreement (Crim. Doc. No.
37); Report and Recommendation (Crim. Doc. No. 38). At the
change of plea hearing, after being advised of the impact of
a felony conviction and all related matters required by Rule
11, Federal Rules of Criminal Procedure
(“Rule(s)”), Petitioner was asked by the Court:
“Mr. Mays, do you fully understand all of the rights
that you have, sir, and the rights that you waive and give up
by pleading guilty?” Transcript of Change of Plea
Hearing (Crim. Doc. No. 59; “COP Tr.”), filed
August 14, 2015, at 13. Petitioner responded, “Yes,
sir.” COP Tr. at 13.
the Court reviewed paragraph 6.B. of the Plea Agreement with
Petitioner, which provides:
[Petitioner] expressly waives the right to appeal [his]
sentence on any ground, including the ground that the Court
erred in determining the applicable guidelines range pursuant
to the United States Sentencing Guidelines
[(“Guidelines”)], except (a) the ground that the
sentence exceeds [Petitioner's] applicable guidelines
range as determined by the Court pursuant to the . .
. 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 [Petitioner] is released from his waiver
and may appeal the sentence as authorized by 18 U.S.C. §
Plea Agreement at 14; see COP Tr. at 22-23.
Petitioner confirmed that he understood what he was waiving
and giving up in that paragraph and that he was making the
waiver freely and voluntarily. COP Tr. at 23.
the change of plea hearing concluded, Ms. Irvin elected to
waive the fourteen-day period to object to the Report and
Recommendation of the undersigned. COP Tr. at 33. On
September 4, 2013, the Court accepted Petitioner's guilty
plea and adjudicated him guilty. See Acceptance of
Plea of Guilty, Adjudication of Guilt, and Notice of
Sentencing (Crim. Doc. No. 39), signed September 4, 2013 and
entered September 5, 2013.
a Presentence Investigation Report (“PSI”) was
prepared by the probation officer. According to the PSI,
Petitioner had an adjusted offense level of 31 and a criminal
history category of VI. Transcript of Sentencing Hearing
(Doc. No. 61; “Sentencing Tr.”), filed August 17,
2015, at 3. The range of imprisonment under the Guidelines
was 188 to 235 months. Sentencing Tr. at 4. The statutory
mandatory minimum term of imprisonment was fifteen years and
the maximum term of imprisonment was life. See 18
U.S.C. § 924(e).
April 29, 2014, the Government filed a Motion for Reduction
of Defendant's Sentence (Doc. No. 47; “Motion for
Reduction of Sentence”), pursuant to Rule 35(b) and 18
U.S.C. § 3553(e). Consequently, the Court was no longer
bound by the fifteen-year mandatory minimum term of
imprisonment. In the Motion for Reduction of Sentence, the
Government moved for a two-level reduction of
Petitioner's offense level based on Petitioner's
cooperation in the investigation of a cocaine distribution
organization. Motion for Reduction of Sentence at 1. On May
1, 2014, Petitioner filed a Sentencing Memorandum (Doc. No.
48) in which he requested that the Court “fashion a
sentence of imprisonment that is below the Guidelines.”
Sentencing Memorandum at 6.
sentencing hearing was held on May 5, 2014. See
Minute Entry (Crim. Doc. No. 49). The Court granted the
Motion for Reduction of Sentence, which reduced the range of
imprisonment under the Guidelines to 151 to 188 months.
Sentencing Tr. at 7. The Government recommended a sentence of
151 months. Sentencing Tr. at 5. Petitioner requested a
variance to a range of imprisonment of 22 to 115 months.
Sentencing Tr. at 14. Ultimately, the Court sentenced
Petitioner to 120 months' imprisonment. See
Sentencing Tr. at 15; Judgment in a Criminal Case (Crim. Doc.
No. 50), signed May 5, 2014 and entered May 6, 2014, at 2.
The sentence resulted from a downward departure based upon
cooperation and a variance. Counts One and Two were dismissed
pursuant to the Plea Agreement. See Judgment in a
Criminal Case at 1.
sentencing hearing, the Court advised Petitioner, “[I]f
you wish to pursue an appeal, you have to file a notice of
appeal within [fourteen] days.” Sentencing Tr. at 17.
Petitioner did not file a notice of appeal. As noted above,
Petitioner filed the § 2255 Motion on April 20, 2015.
Upon its filing, the civil docket was created by the Clerk.
In Ground One of the § 2255 Motion, Petitioner claims
that he asked Ms. Irvin to file a notice of appeal and that
she was ineffective in failing to do so. See §
2255 Motion at 14-15. Specifically, Petitioner alleges that
“he felt he was not an armed career offender, counsel
disagreed with Petitioner and never filed an [a]ppeal . . .
.” Id. at 14. In the § 2255 Motion,
Petitioner asserts he instructed Ms. Irvin to appeal his
sentence on the day of his sentencing. Id.; see
also id. at 15 (alleging that he told Ms. Irvin,
“Counsel, please [a]ppeal my case, because [ten] years
is too much time, and my priors are invalid for [armed career
March 21, 2018 Evidentiary Hearing A. Petitioner's
testified on direct examination that when he entered into the
Plea Agreement, he understood that the ACCA applied to him.
Tr. at 9. According to Petitioner, he and Ms. Irvin
never discussed any challenges to the applicability of the
ACCA. Tr. at 9. Petitioner stated that Ms. Irvin told him he
faced a mandatory minimum sentence of fifteen years in
prison. Tr. at 10. He ultimately decided to enter into the
Plea Agreement and cooperate with the Government to try to
“get under [fifteen] years.” Tr. at 10.
Petitioner confirmed he understood that in the Plea Agreement
he waived certain rights to an appeal, but he did not
remember specifically what rights he waived. Tr. at 11.
Petitioner did not recall discussing any possibilities for
appeal with Ms. Irvin before his sentencing. Tr. at 13. At
that time, he was not concerned with appealing, he was
“focused on cooperating and trying to get less than
[fifteen] years.” Tr. at 13-14.
testified that prior to his sentencing, he reviewed the PSI
with Ms. Irvin, but he did not remember whether he raised any
objections to or issues about it. Tr. at 14. He did not
recall whether they discussed any issues for an appeal after
reviewing the PSI. Tr. at 14-15. When asked at the hearing
how he felt about the sentence he received, Petitioner
replied, “[I]t was all right, ten years, but I was
looking for less.” Tr. at 15. Petitioner recalled Judge
Howard advising him that he had fourteen days to file a
notice of appeal. Tr. at 22.
stated that either “[w]hen [he] got sentenced or right
after [he] got sentenced, ” he asked Ms. Irvin whether
there was “anything that [they could] do about
appealing the sentence.” Tr. at 18. He indicated,
however, he did not ask her to file a notice of appeal, Tr.
at 18-19, directly contradicting his claim in the § 2255
Motion. He also testified he asked her “to come see
[him] at D. Ray James.” Tr. at 18. According to
Petitioner, Ms. Irvin told him that she would go see him, Tr.
at 18, but she never did, Tr. at 19. He stated that while he
was at D. Ray James, he did not have any way of communicating
with Ms. Irvin other than meeting at D. Ray James. Tr. at 21.
He testified specifically that he could not make a collect
call to her. Tr. at 23. Petitioner stated that fourteen days
after he was sentenced, he knew “it was too late to
appeal.” Tr. at 22.
to Petitioner, he was transferred from D. Ray James to a
local jail in Oscilla, Georgia (“Oscilla”) two
weeks after his May 5, 2014 sentence. Tr. at 20. Petitioner
testified he stayed in Oscilla for “about a month and a
half, ” and he did not have any type of communication
with Ms. Irvin while he was there. Tr. at 21-22. He was then
transferred to the Coleman Federal Correctional Complex
(“Coleman”) in July 2014. Tr. at 24. He has been
imprisoned there since. Tr. at 24. Sometime in 2015,
Petitioner e-mailed Ms. Irvin[ ...