RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

This case is before the court on a pro se motion by Cedric Letroy Bonds ("Bonds") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1.1

I. BACKGROUND

On November 28, 2011, Bonds pled guilty under a plea agreement to conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 846.2 After a sentencing hearing on July 24, 2012, the district court sentenced Bonds to 154 months in prison. Bonds did not appeal.

On July 29, 2013, Bonds filed this § 2255 motion, asserting that:

Doc. No. 1 at 4-5.3

The government contends that none of Bonds's claims of ineffective assistance of counsel entitle him to relief, because Bonds fails to establish deficient performance by counsel and resulting prejudice, as required by Strickland v. Washington, 466 U.S. 668 (1984). Doc. No. 6 at 14-23. The government argues that to the extent that Bonds presents a freestanding claim challenging the validity of his guilty plea, such a claim is barred by the waiver provision in his plea agreement whereby he relinquished his rights to appeal and collaterally attack his conviction and sentence except on grounds of ineffective assistance of counsel and prosecutorial misconduct. Id. at 9-10. The government also maintains that this freestanding claim is procedurally barred because it could have been raised and decided on direct appeal, but was not. Id. at 10-12. The government argues that, in any event, the claim is meritless. Id. at 12-14. The government contends that to the extent this claim involves allegations of ineffective assistance of counsel, Bonds is entitled to no relief because he fails to establish the deficient performance and resulting prejudice required by Strickland.4 Id. at 20-23.

After due consideration of the parties' submissions, the record, and the applicable law, the court concludes that Bonds's § 2255 motion should be denied without an evidentiary hearing. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts,

II. DISCUSSION

A. General Standard of Review

Collateral review is not a substitute for direct appeal; therefore, the grounds for collateral attack on final judgments of conviction are extremely limited. A federal prisoner is entitled to relief under 28 U.S.C. § 2255 only if the district court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum sentence authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Bonds, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "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.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). "[A] non-constitutional error that may justify reversal on direct appeal does not generally support a collateral attack on a final judgment, unless the error (1) could not have been raised on direct appeal and (2) would, if condoned, result in a complete miscarriage of justice." Lynn, 365 F.3d at 1232-33 (citations omitted); Hill v. United States, 368 U.S. 424, 428 (1962) (error of law does not provide basis for collateral attack unless claimed error constituted a "fundamental defect which inherently results in a complete miscarriage of justice"). The "fundamental miscarriage of justice" exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent."

B. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is governed by the standards of Strickland v. Washington, 466 U.S. 668 (1984). Grossman v. McDonough, 466 F.3d 1325, 1344 (11th Cir. 2006). Under Strickland's two-part test, a petitioner must demonstrate (1) that "counsel's representation fell below an objective standard of reasonableness" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Darden v. Wainwright, 477 U.S. 168, 184 (1986) (internal quotation marks omitted); see Strickland, 466 U.S. at 687-88 & 694.

Scrutiny of counsel's performance is "highly deferential," and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler v. United States, 218 F.3d 1305, 1314 (internal quotation marks omitted). The court will "avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks and brackets omitted). Thus, "[g]iven the strong presumption in favor of competence, the petitioner's burden of persuasion — though the presumption is not insurmountable — is a heavy one." Id.

As noted above, under the prejudice component of Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" Strickland, 466 U.S. at 694. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.

Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Accordingly, once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

1. Counsel's Advice Regarding Length of Sentence

Bonds cursorily asserts that his counsel rendered ineffective assistance by advising him, incorrectly, that he would receive a sentence of 10 years in prison if he pled guilty.

Doc. No. 1 at 4.

The Strickland standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). A petitioner alleging ineffective assistance in this context must establish that counsel's performance was deficient (i.e., professionally unreasonable) and that counsel's deficient performance "affected the outcome of the plea process." Hill, 474 U.S. at 59. To establish prejudice, then, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would . . . have pleaded [not] guilty and would . . . have insisted on going to trial." Id. A mere allegation by a defendant that he would have insisted on going to trial but for counsel's errors is insufficient to establish prejudice; rather, the court will look to the factual circumstances surrounding the plea to determine whether the defendant would have proceeded to trial. See Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001); United States v. Arvantis, 902 F.2d 489, 494 (7th Cir. 1990); see also Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989) (Hill does not require a hearing merely because a defendant asserts a claim of ineffectiveness of counsel when the record affirmatively contradicts the allegations).

Here, Bonds does not assert that but for his counsel's allegedly erroneous advice regarding the length of his sentence, he would have pled not guilty and would have insisted on going to trial. Therefore, he fails to establish prejudice under Hill, which forecloses the possibility of his obtaining relief on this claim of ineffective assistance of counsel. Hill, 474 U.S. at 59. In any event, the record evidence does not support a claim that Bonds was induced to plead guilty by his counsel's advice regarding his sentence.

The transcript of the change of plea hearing reflects that the magistrate judge fully and correctly advised Bonds of the statutory minimum and maximum sentence applicable to his offense (not less than ten years' imprisonment and not more than life5). Doc. No. 14-1 at 7. The written plea agreement correctly set forth this same statutory range. Ex. C at 1. The plea agreement contained no provision indicating that Bonds's sentence would be 10 years. At the change of plea hearing, Bonds stated under oath that he and his counsel had reviewed and discussed the plea agreement, and that he understood the terms of the plea agreement. Doc. No. 14-1 at 6. Bonds also affirmed that, other than the terms of the plea agreement, no one had made any promises or assurances to him to get him to plead guilty.6 Id. at 6-7. Bonds acknowledged that he understood his sentence would be determined by a combination of advisory sentencing guidelines, possible authorized departures from those guidelines, and other statutory factors. Id. at 8. He affirmed that he and his attorney has discussed how the advisory sentencing guidelines would apply in his case. Id. at 8-9.

"[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false." United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). "There is a strong presumption that the statements made during the [guilty plea] colloquy are true." United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Bonds' sworn statement in open court that his guilty plea had not been induced by any promises or assurances outside the plea agreement preclude the relief he seeks. The statement refutes any suggestion that his guilty plea was induced by assurances from his counsel regarding the length of his sentence. Consequently, Bonds is not entitled to relief based on this claim of ineffective assistance of counsel.

2. Failure to File Motion to Suppress

Bonds next asserts that his counsel was ineffective for failing to file a motion to suppress. Doc. No. 1 at 4. However, he points to no evidence purportedly subject to suppression and fails even to suggest — much less establish — a basis upon which a motion to suppress evidence would have succeeded.7 When a petitioner claims that his counsel was ineffective for failing to file a motion to suppress evidence, he must establish that he was prejudiced by that failure. See DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). Here, Bonds's unsupported assertion fails to demonstrate that his counsel's performance in this regard was professionally unreasonable or prejudicial. Strickland, 668 U.S. at 687-88. Consequently, he is not entitled to relief based on this claim.

3. Offense Level as Career Offender

Bonds asserts that his counsel rendered ineffective assistance by failing to argue that his offense level "should have been at 32 or 34 instead of career offender 37." Doc. No. 1 at 4.

Again, Bonds presents a claim with no supporting argument. Bonds was sentenced as a career offender based on two prior felony drug convictions in Georgia, for conspiracy to traffic methamphetamine and trafficking methamphetamine.8 See Presentence Investigation Report ("PSI") at 14,¶ 49. Bonds makes no argument that he was incorrectly classified as a career offender. Under U.S.S.G. § 4B1.1(b) of the career offender guideline, if the defendant's offense level from the table provided in that section is greater than the offense level otherwise calculated for the defendant, the offense level from the table shall apply to the defendant. U.S.S.G. § 4B1.1(b). Because the statutory maximum sentence for Bond's offense was life, see 21 U.S.C. § 841(b)(1)(A), his offense level under the table in § 4B1.1(b) was life. U.S.S.G. § 4B1.1(b)(A). His otherwise calculated offense level (i.e., his adjusted, non-career-offender offense level) was 35.9 See PSI at 14, ¶ 48. Because his career-offender offense level of 37 under § 4B1.1(b)(A) was greater than his otherwise calculated offense level, the offense level of 37 was correctly applied to him.10

Consequently, Bonds fails to show that his counsel was ineffective for failing to argue that his offense level should have been 32 or 34. Counsel cannot be ineffective for failing to argue a meritless issue. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992). This claim does not entitle Bonds to relief.

4. Disproportionate Sentence

Bonds claims that his trial counsel rendered ineffective assistance by allowing him to receive a sentence unreasonably disproportionate to the sentences of three of his codefendants. Doc. No. 1 at 4. He alleges that codefendant Eli Peretz was ultimately charged with and convicted of misprision of a felony, for which he received only an 18-month sentence; that codefendant Brandi Michelle Butler "had a similar background to [his] but yet she was released in May 2013"; and that codefendant Alexa Orr "is not in the system." Id.

Addressing this claim in an affidavit filed with the court, Bonds's trial counsel James R. Houts avers:

Doc. No. 4 at 3-4.

Under 18 U.S.C. § 3553(a)(6), a district court is required "to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." In considering disproportionality, it is important to compare defendants who are similarly situated. See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). "That requires identifying (1) a specific defendant, (2) with a similar record to the defendant being sentenced, (3) who has been found guilty of similar criminal conduct." United States v. Espinoza, 550 Fed. App'x 690, 694 (11th Cir. 2013).

Bonds's sentence may have been greater than the sentences of his codefendants. However, his sentence was determined in large part because he qualified as a career offender based on his criminal history. For Bonds's argument to be accepted, one must compare his sentence to his codefendants who were classified as career offenders. This court knows of no such codefendants, and Bonds offers the court no such codefendant who fits that description. Peretz, Butler, and Orr were not career offenders. Also not a career offender was Cody Howard, a codefendant Bonds does not cite in his argument. Howard received a sentence of 108 months in prison. See Case No. 2:11cr75-WKW, Doc. No. 279. Further, Bonds does not show that his participation in the conspiracy was similar to that of coconspirators Butler and Orr, who received substantially lesser sentences. The evidence of Peretz's involvement in the conspiracy was relatively weak, so he was allowed to plead guilty to a misprision of a felony. Therefore, Bonds also fails to demonstrate that he was found guilty of criminal conduct similar to that of the codefendants who received lesser sentences.

Consequently, Bonds cannot establish that his counsel was ineffective for allowing him to receive a sentence unreasonably disproportionate to the sentences of similarly situated codefendants.11 This claim is due to be denied.

5. Prosecution on Conspiracy Charge

Bonds asserts that his counsel rendered ineffective assistance by advising him that he could not avoid being prosecuted on the conspiracy charge when other codefendants successfully negotiated pleas to different charges. Doc. No. 1 at 4.

Three of Bonds's four codefendants entered guilty pleas to the conspiracy charge in the indictment. Only codefendant Eli Peretz pled guilty to a lesser charge, and, as noted above, the evidence of Peretz's involvement in the conspiracy was comparatively weak. Bonds fails to demonstrate deficient performance by counsel here or resulting prejudice.

6. Manager/Supervisor Role Enhancement

Bonds contends that his counsel was ineffective for failing to argue against a manager/supervisor role enhancement under the Sentencing Guidelines, U.S.S.G. § 3B1.1(b).12 Doc. No. 1 at 5.

Bonds's trial counsel Houts initially objected to inclusion of the manager/supervisor enhancement, but abandoned the claim when it became apparent that Bonds was subject to being sentenced as a career offender. As noted above in Part II.B.3 of this Recommendation, the PSI's calculation of Bonds's adjusted offense level, which included the manager/supervisor enhancement, was 35. Bonds's offense level as a career offender under § 4B1.1(b)(A) of the guidelines was 37. Thus, the career-offender offense level of 37 "trumped" Bonds's adjusted offense level, and counsel had nothing to gain by pursuing an objection to the manager/supervisor enhancement, which was a factor only in the calculation of Bonds's adjusted offense level and played no part in his career-offender offense level. Counsel cannot be ineffective for failing to pursue a meritless claim. Chandler, 240 F.3d at 917; Winfield, 960 F.2d at 974. Bonds does not demonstrate deficient performance by counsel or resulting prejudice. Therefore, this claim entitles him to no relief.

7. Attributed Drug Amounts

Bonds also contends that his counsel was ineffective for failing to argue against the amount of drugs attributed to him under the Sentencing Guidelines as relevant conduct, U.S.S.G. § 1B1.3. Doc. No. 1 at 5. However, for the same reason that nothing could be gained by pursuing a challenge to the manager/supervisor role enhancement, nothing could be gained by challenging the drug amounts attributed to Bonds as relevant conduct. Such drug amounts were a factor only in the calculation of Bonds's adjusted offense level and played no part in determining his career offender offense level. As noted, his career offender offense level trumped his adjusted offense level. An objection to attributed drug amounts could not have affected the career offender offense level applied to Bonds. As a result, Bonds fails to demonstrate deficient performance by counsel or resulting prejudice, and this claim entitles him to no relief.

8. Career Offender Enhancement

Bonds asserts that his counsel was ineffective for failing to argue against the career offender enhancement in his case. Doc. No. 1 at 5. As the government correctly notes, Bonds offers no support for this claim, and he does not contest the validity of the prior felony drug convictions used to classify him as a career offender. Bonds fails to demonstrate deficient performance by counsel or resulting prejudice. Consequently, this claim entitles him to no relief.

9. Jail Credit

Bonds claims that his counsel was ineffective for failing to argue that time he spent in county jail on a writ in Alabama awaiting disposition of his federal case should be credited toward his federal sentence. Doc. No. 1 at 5.

Bonds was serving a state sentence in Georgia when the federal indictment issued in the instant matter. The federal prosecutor in the Middle District of Alabama sought and obtained a writ of habeas corpus ad prosequendum to have Bonds brought to this district to be tried on the federal charge. Bonds apparently wants credit against his federal sentence for time he spent in an Alabama county jail awaiting disposition of his federal case.

Addressing Bonds's allegation of ineffective assistance, trial counsel Houts states:

Doc. No. 4 at 10-11.

Although federal authorities took temporary custody of Bonds pursuant to the writ of habeas corpus ad prosequendum on the federal drug charges, the State of Georgia still retained primary custody of him. See, e.g., Esquivel-Torres v. Scibana, 2006 WL 2373203, at *3 (W.D. Okla. Aug. 14, 2006). Because the State of Georgia maintained primary custody and federal authorities obtained only temporary custody under the writ of habeas corpus ad prosequendum, Bonds remained in custody of the Georgia authorities during the time he was transferred for prosecution on federal charges. Id. Under 18 U.S.C. § 3585(b), a federal prisoner cannot be given credit on his federal sentence for time credited to another sentence, because such would constitute "double counting." See United States v. Wilson, 503 U.S. 329, 337 (1992); Johnson v. Wise, 2010 WL 3306920, at *5-6 (S.D. Ala. Jul. 13, 2010). Bonds neither asserts nor demonstrates that he did not receive credit from Georgia authorities against his Georgia sentence while he was in Alabama on the writ of habeas corpus adprosequendum awaiting disposition of his federal case. Consequently, he cannot show that his counsel was ineffective for failing to argue that time he spent in an Alabama county jail awaiting disposition of his federal case should be credited against his federal sentence.13

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U.S.C. § 2255 motion filed by Bonds be DENIED with prejudice, as the claims therein entitle him to no relief.

It is further

ORDERED that the parties shall file any objections to this Recommendation [on or before September 3, 2015. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).