Boles v. United States, CIVIL ACTION NO. 1:18-00073-WS-N

CourtU.S. District Court — Southern District of Alabama
Writing for the CourtKATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
PartiesJUSTIN RYAN BOLES, BOP Reg. #13990-003, Movant, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberCRIMINAL ACTION NO. 1:14-00199-WS-N-7,CIVIL ACTION NO. 1:18-00073-WS-N
Decision Date02 March 2021

JUSTIN RYAN BOLES, BOP Reg. #13990-003, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 1:18-00073-WS-N
CRIMINAL ACTION NO. 1:14-00199-WS-N-7

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 2, 2021


REPORT AND RECOMMENDATION

Justin Ryan Boles, a federal prisoner proceeding without counsel (pro se), has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 dated February 6, 2018 (Doc. 2691) challenging the judgment entered against him in the above-numbered criminal action. The assigned District Judge has referred Boles's § 2255 motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Rule 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts ,and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (2/15/2018 electronic reference). Under S.D. Ala. GenLR 72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the § 2255 motion, in accordance with 28 U.S.C. § 636(b)(1) and Rule 8(b) of the Rules Governing Section 2255 Proceedings.

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The Government timely filed a response (Doc. 284) in opposition to Boles's § 2255 motion, as ordered by the Court under Rules 4(b) of the Rules Governing Section 2255 Proceedings (see Doc. 271), and Boles filed no reply to the response within the time allowed. See (id.); Rule 5(e) of the Rules Governing Section 2255 Proceedings. The Government also timely filed a supplemental response (Doc. 311) to the § 2255 motion in response to the Court's order directing it to further address one of Boles's grounds for relief (Doc. 306). Boles's § 2255 motion is now under submission for determination of whether expansion of the record and/or an evidentiary hearing is warranted. See (id., PageID.1550-1551); Rules 7 and 8(a) of the Rules Governing Section 2255 Proceedings.

Having reviewed the parties' submissions and other relevant portions of the record in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the undersigned finds that neither expansion of the record nor an evidentiary hearing is warranted, and that Boles's § 2255 motion (Doc. 269) is due be DENIED and DISMISSED with prejudice.

I. Background

On July 31, 2014, the grand jury for this district returned an indictment against Boles and five co-defendants (Doc. 1), charging Boles with six counts involving various drug-related offenses. Boles was appointed trial counsel and initially entered a plea of not guilty to all charges. (See Doc. 50). On November 14, 2014, Boles, pursuant to a written plea agreement (Doc. 82), changed his plea and entered a plea of guilty to two violations of 21 U.S.C. § 846 charged in the indictment: Count One,

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which charged an offense of conspiracy to manufacture a controlled substance (methamphetamine) in violation of 21 U.S.C. § 841(a)(1); and Count Eight, which charged an offense of conspiracy to possess a List I chemical (pseudoephedrine) with knowledge and belief that it would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). (See Docs. 1, 93).2 On July 29, 2015, the Court sentenced Boles to 188 months of imprisonment followed by 3 years of supervised release on each count, said terms to run concurrently, along with a $200.00 assessment. (Doc. 195). Consistent with the terms of the plea agreement, the remaining counts against Boles were dismissed on motion of the Government. (See id.).

Boles appealed the judgment, and new counsel was appointed to represent him on appeal. (See Docs. 203, 209). By written opinion issued November 17, 2016, the Eleventh Circuit Court of Appeals dismissed Boles's direct appeal of his sentence pursuant to the appeal waiver in his plea agreement, and affirmed as to his convictions. See (Docs. 241, 242); United States v. Boles, 666 F. App'x 805 (11th Cir. 2016) (per curiam) (unpublished). On March 20, 2017, the United States Supreme Court denied Boles's petition for a writ of certiorari to review the Eleventh Circuit's decision. See (Doc. 243); Boles v. United States, 137 S. Ct. 1358 (2017). Boles timely filed the present § 2255 motion in February 2018. (See Doc. 269, PageID.1435).

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II. Legal Standards
a. General Standards of Review under § 2255

Title 28 U.S.C. § 2255 "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). However, "[o]nce the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164 (1982). "[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). "Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 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." Id. at 1232 (internal citations, quotations, and footnote omitted).

Once a petitioner files a § 2255 motion, "[u]nless 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." [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary hearing if he "alleges facts that, if true, would entitle him to relief." Aron[ v. United States], 291 F.3d [708,] 715[ (11th Cir. 2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). "[A]

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petitioner need only allege—not prove—reasonably specific, non-conclusory facts that, if true, would entitle him to relief." Id. at 715 n.6. However, a district court need not hold a hearing if the allegations are "patently frivolous," "based upon unsupported generalizations," or "affirmatively contradicted by the record." Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) ("Because the ... affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.").

Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord, e.g., Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). In making this determination, the Court is aware that it must "liberally construe pro se filings, including pro se applications for relief pursuant to § 2255." Winthrop-Redin, 767 F.3d at 1215.

b. Effect of Guilty Plea

The " 'concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.'" Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)). "A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained." Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). See also, e.g., United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) ("'A guilty plea, since it admits all the elements of a formal criminal charge, waives all non-jurisdictional defects in the proceedings against a defendant.'" (quoting United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (per curiam)); United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) ("

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'Generally, entering a guilty plea waives a defendant's right to all non-jurisdictional challenges to a conviction.' " (quoting United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009)). Stated differently, "a voluntary and intelligent plea made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508 (1984). Therefore, when, as here, a § 2255 motion is filed collaterally challenging convictions obtained pursuant to a guilty plea, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569 (1989). See also Bousley, 523 U.S. at 618 ("A plea of guilty is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.' (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

c. Ineffective Assistance of Counsel

The Sixth Amendment gives criminal defendants the right to effective assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86 (1984). "[F]ailure 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." Massaro v. United States, 538 U.S. 500, 509 (2003). Indeed, "in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance." Id. at 504. See also United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) ("An ineffective assistance claim should usually be raised in a motion under 28 U.S.C. § 2255." (citing United States v. Patterson, ...

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