United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Petitioner Markeith Brown'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.
and Memorandum of Law in Support (Doc. 2; Cr-Doc. 58). The
Government opposes the motion (Doc. 9), to which Brown has
filed a reply (Doc. 11). The Court held an evidentiary
hearing on May 1, 2019, at which Brown was presented and
represented by counsel. (Doc. 25). For the below reasons, the
Court denies his motion.
March 5, 2014, a federal grand jury indicted Brown for
knowingly possessing with intent to distribute 500 grams or
more of cocaine in violation of 21 U.S.C. § 841(a)(1).
(Cr-Doc. 1). This offense carried a penalty of five to forty
years imprisonment. The Court appointed Russell Rosenthal, an
Assistant Federal Defender (“Counsel”), to
represent Brown. (Cr-Doc. 15).
September 30, 2014, Brown pled guilty. Under the plea
expressly waive[d] 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, except (a) the ground
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
(Cr-Doc. 22 at 14 (emphasis original)). In exchange, the
Government agreed to recommend a three-level decrease for
Brown's acceptance of responsibility, move for a downward
departure because of his cooperation, and not to oppose a
low-end guidelines sentence. (Cr-Doc. 22 at 3-5). The Court
accepted Brown's plea and adjudicated him guilty.
6, 2015, the Court sentenced Brown to 120 months'
imprisonment, lower than the calculated guidelines range.
(Cr-Doc. 47). The Presentence Investigation Report
(“PSR”) scored his base offense level at 26.
(Cr-Doc. 39 at ¶ 26). Although no specific offense
characteristic applied, the PSR found Brown a career offender
under U.S.S.G. § 4B1.1 because of his prior drug
convictions. (Cr-Doc. 39 at ¶ 32). The career offender
status raised the offense level to 34. (Cr-Doc. 39 at ¶
32). Then, with a three- level decrease for accepting
responsibility, Brown's total offense level was 31.
(Cr-Doc. 39 at ¶¶ 34-36). Brown's criminal
history points led to a Category IV designation. But, because
of his career offender status, the category jumped to VI.
(Cr-Doc. 39 at ¶¶ 48-50). An offense level of 31
and a criminal history category VI gave Brown a guidelines
range of 188 to 235 months. (Cr-Doc. 39 at ¶ 89). Brown
objected to neither the PSR's factual accuracy nor
guidelines calculation. (Cr-Doc. 64 at 7).
did, however, file a sentencing memorandum. (Cr-Doc. 45). He
argued a criminal history category of VI overrepresented his
past. The Court agreed and departed downward one category.
Brown also moved for a variance under 18 U.S.C. §
3553(a) because of his family history, drug addiction,
rehabilitative intent, and cooperation. The Court agreed and
varied downward. Coupling these decreases with the
Government's U.S.S.G. § 5K1.1 motion, the Court
sentenced Brown to 120 months' imprisonment. This
sentence was a 68-month reduction from the low-end of the
Court entered Judgment on July 7, 2015. (Cr-Doc. 52; Cr-Doc.
53). Brown never appealed. He self-surrendered about two
now moves under 28 U.S.C. § 2255 for collateral relief.
(Doc. 1; Doc. 2). He raises two grounds. In Ground One, Brown
alleges Counsel rendered constitutionally ineffective
assistance by not filing a notice of appeal after Brown told
him to do so. His motion also identifies the grounds he
wished to appeal. In Ground Two, Brown alleges Counsel failed
to object to sentencing enhancements. He requests
“remand of his entire involuntary plea, based on the
Government's misconduct, and counsel's
ineffectiveness and below the standard of
representation.” (Doc. 2 at 11). The Government opposes
habeas petition may not be filed more than one year from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). Brown's
judgment of conviction became final on July 21, 2015. He thus
had until the year after to file a § 2255 motion, and he
did so with nearly two months to spare. The Government
concedes Brown's motion to be timely. (Doc. 9 at 3).
district court must hold an evidentiary hearing on a habeas
petition “unless 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). But “a
district court is not required to hold an evidentiary hearing
where the petitioner's allegations are affirmatively
contradicted by the record, or the claims are patently
frivolous[.]” Aaron v. United States, 291 F.3d
708, 715 (11th Cir. 2002 (citation omitted); see
also Gordan v. United States, 518 F.3d 1291,
1301 (11th Cir. 2008) (“An evidentiary hearing is not
required whenever a petitioner asserts a claim of ineffective
assistance under section 2255.”). The Court found
Ground One could not be answered on the record and granted an
evidentiary hearing on that claim only. (Doc. 13).
prisoner in federal custody may move for his sentence to be
vacated, set aside, or corrected on four grounds: (1) the
imposed sentence violates the Constitution or laws of the
United States; (2) the court lacked jurisdiction to impose
the sentence; (3) the sentence was over the maximum
authorized by law; or (4) the imposed sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a). A
§ 2255 motion “may not be a surrogate for a direct
appeal.” Lynn v. United States, 365 F.3d 1225,
1232 (11th Cir. 2004) (stating § 2255 relief 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” (internal
quotations omitted)). The petitioner bears the burden of
proof on a § 2255 motion. Rivers v. United
States, 777 F.3d 1306, 1316 (11th Cir. 2015) (citation
“claims not raised on direct appeal may not be raised
on collateral review unless the petitioner shows cause and
prejudice.” Massaro v. United States, 538 U.S.
500, 504 (2003). This procedural default rule “is a
doctrine adhered to by the courts to conserve judicial
resources and to respect the law's important interest in
the finality of judgments.” Id. There is an
exception: ineffective assistance of counsel claims.
Massaro, 538 U.S. at 504 (holding the failure to
raise an ineffective-assistance-of-counsel claim on direct
appeal does not bar the claim from being brought in a later,
appropriate proceeding under § 2255).
defendants have a Sixth Amendment right to reasonably
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). A defendant
claiming ineffective assistance of counsel must show that (1)
“counsel's representation fell below an objective
standard of reasonableness”; and (2) the deficient
performance resulted in prejudice. Id. at 687;
seeRoe v. Flores-Ortega, 528 U.S. 470, 477
(2000) (stating the Strickland test applies to
claims that counsel was constitutionally ineffective for
failing to file a notice of appeal). Failing to show either
Strickland prong is fatal. See Kokal v.