RECOMMENDATION OF THE MAGISTRATE JUDGE

WALLACE CAPEL, Jr., Magistrate Judge.

This case is before the court on a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence filed by federal inmate Tyrone Nunn, Sr. ("Nunn").

I. BACKGROUND

On October 1, 2008, a federal grand jury sitting in the Middle District of Alabama returned a three-count superseding indictment1 charging Nunn with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1); conspiracy to distribute and posses with intent to distribute 50 grams or more of crack cocaine, a violation of 21 U.S.C. §§ 841(a)(1) & 846 (Count 2); and possession with intent to distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 3). The charges were the result of a multi-agency investigation of Nunn's drug trafficking activities near, and on both sides of, the Alabama-Georgia border. Nunn proceeded to trial with his alleged coconspirator, Curtis Buchanan, on February 23, 2009. However, after the first day of proceedings, Nunn decided to plead guilty. The following day, February 24, 2009, Nunn appeared before the district court and, pursuant to a plea agreement, pled guilty to Counts 1 and 3 of the indictment (the substantive distribution counts). Government Exhibit ("Gov. Ex.") F. Under the plea agreement, the Government agreed to dismiss Count 2 of the indictment (the conspiracy count) and to drop the charges against Curtis Buchanan. In addition, the parties agreed to recommend that Nunn be sentenced at the top end of the applicable advisory guidelines range. As part of the plea agreement, Nunn also agreed to waive his right to appeal or collaterally attack his sentence except on grounds of ineffective assistance of counsel or prosecutorial misconduct. Id. at 8-9.2

Sentencing was held on July 1, 2009. After hearing testimony and argument on the drug amounts attributable to Nunn, the district court accepted the findings in the presentence investigation report ("PSI") that Nunn was responsible for a total of 151.26 grams of crack cocaine recovered during controlled buys and searches conducted by law enforcement agencies between September 2006 and October 2007. Gov. Ex. M. Based on this amount, Nunn's base offense level was 32. Nunn received a two-level downward adjustment for acceptance of responsibility. Consequently, his total offense level was 30, which, when combined with his criminal history category of VI, resulted in an advisory guidelines sentencing range of 168 to 210 months. The district court sentenced Nunn to 210 months in prison. Despite the waiver-of-appeal provision in his plea agreement, Nunn appealed to the Eleventh Circuit, arguing that the district court erred by sentencing him without conducting its own fact-finding and by "relying on evidence that was unforeseeable and unreliable." Gov. Ex. O. On April 8, 2010, the Eleventh Circuit dismissed Nunn's appeal on the basis of the appeal waiver in the plea agreement. Gov. Ex. P.

On July 15, 2010, Nunn filed a motion for relief under 28 U.S.C. § 2255, which he amended and supplemented numerous times thereafter. In his voluminous pleadings, Nunn sets forth claims and quasi-legalistic arguments in a confusing, disjointed, and repetitive manner. In examining Nunn's motion, this court is mindful of the well-settled principle that, when interpreting a pro se petitioner's pleadings, the court has a responsibility to construe such pleadings liberally. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). With that principle in mind, the court has carefully reviewed each of Nunn's claims as stated in his § 2255 motion and the amendments thereto. The court understands Nunn to present the following claims:

The Government argues that all of the Nunn's claims, with the exception of his jurisdictional claims3 and claims of ineffective assistance of counsel, are barred from review because Nunn did not raise the claims on direct appeal and because he expressly waived his right to seek § 2255 relief for such claims when he entered his guilty plea. The Government further argues that, in any event, all of Nunn's claims — including his jurisdictional claims and claims of ineffective assistance of counsel — are without merit and therefore do not entitle him to any relief.

After due consideration of Nunn's § 2255 motion as amended, the supporting and opposing submissions, and the record in this case, the court concludes that an evidentiary hearing is not required and that, pursuant to Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.

II. DISCUSSION

A. General Standard of Review

Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments pursuant to 28 U.S.C. § 2255 are extremely limited. A prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum 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. Walker, 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. Standard of Review for Claims of 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). 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." Id. at 668 and 694; see Darden v. Wainwright, 477 U.S. 168, 184 (1986); Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000).

Under the performance component of the Strickland inquiry, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. In other words, criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance. Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000) (quoting Strickland, 466 U.S. at 687). In any ineffective assistance analysis, scrutiny of counsel's performance is "highly deferential," and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1314; see Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Review of an ineffective assistance of counsel claim is conducted from the perspective of defense counsel based on facts "as they were known to counsel at the time of the representation." United States v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992). 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. See 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) ("if a defendant cannot satisfy the prejudice prong, the court need not address the performance prong").

C. Nunn's Jurisdictional Claims

Each of the following claims in Nunn's § 2255 motion is premised on his same central contention that this court lacked "territorial" and/or subject matter jurisdiction over the offenses he was charged with committing:4

Nunn's underlying argument for each of these claims, i.e., his "territorial jurisdiction" argument, is that the federal government may criminalize only conduct that occurs on land or property owned by the federal government, and that because he was charged with committing acts that took place on land under the jurisdiction of the states of Alabama and Georgia, the federal government and its courts did not have jurisdiction to prosecute him for his crimes. Nunn maintains that because his claims are "jurisdictional" in nature, they are amenable to review in this § 2255 proceeding despite the provision in his plea agreement whereby he waived his right to appeal or collaterally attack his sentence and despite his failure to raise the claims on appeal.14 Moreover, he makes a blanket assertion that his counsel rendered ineffective assistance by failing to present the trial court with the arguments he now makes in support of his jurisdictional claims.

As noted above, the waiver provision in the plea agreement contained exceptions allowing claims of ineffective assistance of counsel and prosecutorial misconduct. Not only does Nunn make a blanket assertion of his counsel's ineffectiveness, but he makes a specific claim that his counsel was ineffective for failing to move to dismiss the indictment based on the federal court's supposed lack of jurisdiction. In addition, he asserts related claims of prosecutorial misconduct and actual innocence, which, if meritorious, would avoid any impediments posed by the waiver provision in the plea agreement and, for the actual-innocence claim, overcome any procedural bar.15 Alas, Nunn's jurisdictional arguments are patently frivolous in all respects. By the terms of the Constitution and the relevant federal statutes, the district court had jurisdiction over the offenses for which he was convicted.

The Constitution of the United States gives Congress the power to create inferior federal courts and determine their jurisdiction. U.S. Const. art. III, § 1. Under Article III, § 2, cl. 1, of the Constitution, federal courts have jurisdiction in all cases "arising under" the constitution and laws of the United States. Moreover, pursuant to 18 U.S.C. § 3231, federal district courts have original jurisdiction, "exclusive of the courts of the States, of all offenses against the laws of the United States." See Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000); see also, e.g., United States v. Russell, 30 F. App'x 348, 351 (6th Cir. 2002). Further, Article I, § 8, of the Constitution empowers Congress to create, define and punish crimes, irrespective of where they are committed. See United States v. Worrall, 2 U.S. (2 Dall.) 384, 393 (1798) (Chase, J.); United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990). The Seventh Circuit has succinctly responded to claims of the sort presented by Nunn as follows:

Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999).

A federal district court's jurisdiction under 18 U.S.C. § 3231 is not limited to crimes occurring on federally owned property. See, e.g., McClurkin v. United States, 922 F.2d 843 (7th Cir. 1990); United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994); Cantrell v. Reno, 36 F. App'x 651 (1st Cir. 2002); see also Prou v. United States, 199 F.3d 37, 45 (1st Cir. 1999) ("a federal district court plainly possesses subject-matter jurisdiction over drug cases"); United States v. Lussier, 929 F.2d 25, 26 (1st Cir. 1991) (rejecting "territorial" jurisdiction argument). Nunn's argument ignores the basic principle of federalism embodied in the Constitution of the United States. The fact that Alabama and Georgia have sovereignty within their boundaries does not bar the United States from having concurrent jurisdiction to indict and prosecute Nunn for federal crimes occurring within those same boundaries. See, e.g., United States v. Hamilton, 263 F.3d 645, 655-56 (6th Cir. 2001).

Nunn was prosecuted for violations of the criminal laws of the United States. Because Alabama and Georgia, where Nunn's underlying criminal offenses occurred, are within the jurisdiction of the United States and his offenses were in violation of validly enacted federal statutes, the district court's jurisdiction to enter rulings and judgment of conviction against Nunn lay squarely within the original jurisdiction conferred under 18 U.S.C. § 3231. For this reason, Nunn's claim that the court could not try him for offenses that occurred "inland" has no basis in law. For much the same reason, Nunn's claims regarding the supposed deficiencies in the indictment are without merit. Review of the indictment reveals that each count states an offense against the laws of the United States, tracking the language of the statute and setting forth the essential elements of the crime.16 Further, there is no merit to Nunn's allegation of prosecutorial misconduct: the United States Attorney is authorized to prosecute all offenses against the United States under 28 U.S.C. § 547(1), which states in relevant part that "each United States attorney, within his district, shall prosecute for all offenses against the United States[.]" Nunn's claim that his guilty plea was involuntary and unknowing is also predicated on his meritless argument that this court lacked territorial and/or subject matter jurisdiction over the offenses he was charged with committing. Accordingly, Nunn's counsel could not be ineffective for failing to move to dismiss the indictment based on this meritless argument.17 Finally, Nunn's claim of "actual innocence" is fruitless, because it is nothing more than a reiteration of his frivolous claim that this court lacked jurisdiction.

D. Alleged Violation of Interstate Agreement on Detainers Act

Nunn claims that his convictions were obtained in violation of the Interstate Agreement on Detainers Act ("IADA") because his case was not brought to trial within 180 days after federal authorities filed a detainer and requested issuance of a writ of habeas corpus ad prosequendum seeking his delivery from jail in Carroll County, Georgia, to this court for prosecution on federal charges.18 Doc. No. 19 at 1-2. Because this claim is arguably procedurally default or barred from review under the waiver provision in the plea agreement, Nunn, in an apparent attempt to avoid these bars, contends that his counsel was ineffective for failing to raise his IADA claim in the trial court. However, because there is no merit to the underlying substantive claim, there is likewise no merit to Nunn's contention that his counsel was ineffective for failing to assert the claim in the trial court.19

At the time the detainer was filed and a writ of habeas corpus ad prosequendum was issued by this court, Nunn was a pretrial detainee in the Carroll County, Georgia, Jail awaiting trial on state charges. As the Government correctly notes (Doc. No. 34 at 2-5), both the clear language of Article III of the IADA20 and case law establish that pretrial detainees have no rights under the IADA. See United States v. Wilson, 719 F.2d 1491, 1494-95 (10th Cir. 1983); United States v. Reed, 620 F.2d 709, 711-12 (9th Cir. 1980); United States v. Pardue, 363 F.3d 695, 698 (8th Cir. 2004); United States v. Forrest, 402 F.3d 678, 685 (6th Cir. 2005); United States v. Hart, 933 F.2d 80, 84 (1st Cir. 1991). Thus, the 180-day requirement of the IADA was not applicable in Nunn's case because he was not serving a "term of imprisonment" when the writ of habeas corpus ad prosequendum issued. Because Nunn's substantive claim in this regard is without merit, his counsel could not be ineffective for failing to raise the claim. Counsel is not 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). Nunn is not entitled to any relief based on this claim.

E. Brady Claim

Nunn contends that the Government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), by withholding lab reports that indicated the amount of crack cocaine he sold to a confidential informant in a controlled buy conducted on October 17, 2007, in Carroll County, Georgia.21 Doc. No. 24 at 1-2; see also Doc. 22-2 at 2-4. That transaction formed the basis of Count 3 of the indictment. Nunn also claims that his counsel rendered ineffective assistance by failing to conduct an adequate pretrial investigation, which he says would have resulted in the defense's discovery of the Government's alleged Brady violation.

Nunn's entire argument in this regard is predicated on his dubious interpretation of a Case File Sheet (Doc. No. 36 at 8) generated by the West Georgia Drug Task Force ("WGDTF"), one of the law enforcement agencies that investigated Nunn's drug trafficking activities, and whose agents participated in the October 17, 2007, controlled buy. The Case File Sheet indicates, in rather round numbers (".5 ounce," "1 ounce," and "4 ounces") amounts of crack cocaine seized from Nunn, apparently on three occasions, two of which involved buys and one of which involved the execution of a search warrant (denoted as "s/w"on the Case File Sheet). The date of each seizure is not listed on the Case File Sheet, and it is not evident when the Case File Sheet was filled out. Based on annotations made on the Case File Sheet, it appears that the WGDTF started Nunn's file on October 12, 2007, and that a review of the file was conducted on November 20, 2007.

Nunn maintains that the (undated) entry on the Case File Sheet reflecting a "1 ounce" seizure of crack refers to the crack cocaine seized in the October 17, 2007, controlled buy that formed the basis of Count 3 of the indictment. He then claims that because the Government later represented — and lab reports indicated — that the October 17, 2007, controlled buy yielded 11.02 grams of crack cocaine, "14.98 grams of the [drug] evidence was missing,"22 which, according to Nunn, shows that the evidence forming the basis of Count 3 was "altered, tampered [with] or switched and [was] not [his] evidence." Doc. No. 22-2 at 4. Nunn is vague on the details, but he maintains that the Government somehow suppressed evidence of the discrepancy between the 1 ounce (28.35 grams) of crack cocaine reflected on the WGDTF's Case File Sheet and the 11.02 grams of crack cocaine that formed the basis of Count 3. Nunn alleges that the Government suppressed evidence of the discrepancy in an attempt to suppress evidence that the drugs seized on October 17, 2007, had been tampered with after their seizure. He further asserts that if his trial counsel had conducted an adequate pretrial investigation, counsel would have discovered that the Government had suppressed the discrepancy in the drug amounts. He then says that if had he known of the discrepancy, he would have recognized that the drug evidence underlying Count 3 had been tampered with and was therefore inadmissible, in which case, he says, he would not have opted to plead guilty to Count 3.

One problem with Nunn's claim is that he fails to establish with even a modicum of certainty that the undated entry on the Case File Sheet reflecting a 1-ounce seizure of crack cocaine in fact refers, as he insists, to the crack cocaine seized in the controlled buy of October 17, 2007. Indeed, none of the amounts of crack cocaine listed on the Case File Sheet — ".5 ounce," "1 ounce," "4 ounces" — matches a drug amount seized by the WGDTF during its investigation of Nunn's trafficking operation.23 Further, as the three listed amounts appear to be round figures, it is possible, perhaps even likely, that they represent only estimates of drug amounts seized by the WGDTF. Again, the date of these seizures is not reflected on the Case File Sheet. Although the Case File Sheet reflects that Nunn's file was started on October 12, 2007, the WGDTF had made controlled buys of small amounts of crack cocaine from Nunn (or in Nunn's presence) as early as July 2007. Thus, the Case File Sheet upon which Nunn relies in asserting that the drug evidence forming the basis of Count 3 was tampered with shows no such thing.

The Government has submitted evidence establishing that it fully and timely complied with its obligations to provide Nunn's counsel with discovery materials, including the chain of custody and lab reports related to the controlled buy of October 17, 2007. See Doc. Nos. 34-2 through 34-8. Those lab reports reflect that the amount of crack cocaine seized as a result of that controlled buy was 11.02 grams. Nunn presents no evidence of tampering, but rather he spins a single number indicated on the Case File Sheet — the significance of which is wholly speculative — into "proof" that the evidence in his case was tampered with, and that the Government then suppressed the evidence of such tampering. There is, however, no evidence that the October 17, 2007, controlled buy involved one ounce of crack cocaine as Nunn now alleges. Nor is there any evidence that Nunn ever alerted his counsel that the October 17, 2007, sale involved more than 11.02 grams, even though Nunn would have been aware before pleading guilty — and well before sentencing — that 11.02 grams was the amount of crack cocaine the government was alleging he sold in the controlled buy of October 17, 2007.

Nunn fails to demonstrate that the Government suppressed any favorable material in his case. Therefore, there is no merit to his Brady claim. As such, his counsel was not ineffective for failing to conduct a pretrial investigation that would have discovered the purported Brady violation. Nunn is not entitled to any relief based on this claim

F. Registration as Foreign Agents

Nunn maintains that the Federal Defender who represented him and the U.S. Attorney who prosecuted him were foreign agents who were required to register as such in order to do business in Alabama. Doc. No. 24 at 2. This conclusory assertion has not been developed adequately by factual allegation or legal argument. None of the individuals named by Nunn is a foreign agent required to register as such. This claim is therefore rejected as meritless without further discussion.

G. Counsel's Failure to File Motion to Suppress Evidence in Count 2

Nunn contends that his counsel rendered ineffective assistance by failing to file a pretrial motion to suppress the evidence in Count 2 of the indictment (the conspiracy count). He maintains that the Government exceeded the scope of a search warrant that was executed prior to seizure of this evidence because the place where the evidence was discovered was not specifically named in the search warrant. See Doc. No. 19-1 at 33-34; Doc. No. 81 at 4; Doc. No. 92; Doc. No. 151 at 2-3. Nunn's claim is frivolous.

The "Count 2 evidence" about which Nunn objects was approximately 120 grams of crack cocaine that drug agents recovered when executing a search warrant on October 25, 2007, at Curtis Buchanan's residence in rural Carroll County, Georgia, near the Georgia-Alabama border. The record reflects that Nunn would sometimes stay at Buchanan's residence and would use the residence to conduct drug transactions while in Georgia.

When executing the warrant to search Buchanan's residence, the agents found the 120 grams of crack cocaine outside in a ditch across the street from the residence, packaged inside a nylon bag. On a prior occasion, when conducting a controlled buy from Nunn, agents had observed Nunn retrieve drugs from the same ditch and take the drugs inside Buchanan's residence to complete the sale to a confidential informant.

Here, no warrant was needed to seize the drugs from the ditch across the street from Buchanan's residence. The ditch was an "open field," not on Buchanan's property, and could therefore be entered without a warrant. The search of an open field does not violate the Fourth Amendment because a party does not have the same expectation of privacy in an open field. Oliver v. United States, 466 U.S. 170, 177 (1984). Nunn could have no reasonable expectation of privacy in the ditch where the drugs were found.

Moreover — assuming Nunn even had standing to challenge the search of Buchanan's residence (a questionable assumption), and further assuming that the ditch where the drugs were found could be considered to be on Buchanan's property (of which there is no evidence) — law enforcement officials did not exceed the scope of the search authorized by the warrant. The warrant authorized a search of Buchanan's residence. A warrant to search a particular premises authorizes the search of the entire premises. United States v. Ross, 456 U.S. 798, 820 (1982); United States v. Griffin, 827 F.2d 1108, 1113 (7th Cir. 1987). Thus, even if the ditch where the drugs were found was located on Buchanan's property, the warrant to search Buchanan's residence authorized the search of the entire premises, including the ditch. See United States v. Pennington, 287 F.3d 739 (8th Cir. 2002) (searches of pickup truck and dump truck found on rural property listed in search warrant as defendant's address were within scope of warrant authorizing search of defendant's "residence").

Finally, it must be pointed out that the 120 grams of crack cocaine the agents seized from the ditch during the October 25, 2007, search did not play a part in any count of conviction. Pursuant to the plea agreement, the Government dismissed Count 2 (the conspiracy count) of the indictment. The drug transactions charged in Counts 1 and 3 of the indictment, and to which Nunn pled guilty, did not involve the 120 grams of crack cocaine seized on October 25, 2007. It is true that, at sentencing, when determining Nunn's base offense level, the district court included the 120 grams of crack cocaine in its calculation of the drug quantities attributable to Nunn as relevant, reasonably foreseeable conduct. However, it is well settled that drug quantities outside the conviction count — including drug evidence seized in violation of the Fourth Amendment — may be considered by the sentencing court in its calculations under the Federal Sentencing Guidelines. See United States v. Torres, 9826 F.2d 321, 324-25 (3d Cir. 1991); U.S.S.G. § 1B1.3, comment. (backg'd); see also, e.g., United States v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir. 1991) (the exclusionary rule does not apply to the use of illegally seized evidence when determining a sentence under the Sentencing Guidelines, at least when the evidence was not seized for the sole purpose of enhancing the defendant's sentence); United States v. Manor, 936 F.2d 1238, 1242-43 (11th Cir. 1991) (noting that an acquittal does not bar a sentencing court from considering the defendant's actual relevant conduct under the acquitted count in imposing sentence). Thus, even if Nunn's counsel had successfully moved to suppress the 120 grams of crack cocaine (i.e., the "Count 2 evidence") as the product of a search that exceeded the scope of the warrant, the district court could have considered that same drug quantity when determining Nunn's base offense level. In other words, even a successful suppression motion would have had no effect on Nunn's sentence.

Accordingly, for the reasons set forth above, the court concludes that Nunn has failed to show that his counsel's failure to move to suppress the "Count 2 evidence" was objectively unreasonable or that he was prejudiced by counsel's failure to do so. Strickland v. Washington, supra. Nunn is not entitled to any relief based on this claim.

H. Counsel's Failure to Advise of Possible Venue Defense

Nunn contends that his counsel rendered ineffective assistance by failing to advise him of "a possible venue defense" as to Counts 2 and 3 of the indictment. In this regard, Nunn maintains that the conduct underlying Counts 2 and 3 occurred only in Georgia, and not in Alabama, and that therefore he should not have been prosecuted on these charges in a federal court sitting in Alabama. Nunn fails to establish the viability of this defense.

Count 2 of the indictment charged Nunn with participating in a drug trafficking conspiracy, which, the record shows, was conducted on both sides of the Alabama-Georgia border. At least one act in furtherance of that conspiracy occurred in the Middle District of Alabama.24 Count 3 of the indictment charged Nunn with possession with intent to distribute 5 grams or more of crack cocaine. Although the drugs involved in Count 3 were seized in Georgia, following a controlled buy from Nunn, at least part of Nunn's conduct in the commission of that offense took place in the Middle District of Alabama. Evidence with regard to Count 3 indicated that Nunn took money from a confidential informant at Curtis Buchanan's residence in Georgia, traveled to his mother's residence in Wedowee, Alabama, and picked up the crack cocaine that he returned with to Buchanan's residence in Georgia and sold to the confidential informant. There is no merit, then, to Nunn's assertion that the conduct underlying Counts 2 and 3 occurred only in Georgia. Therefore, he is not entitled to any relief based on his claim that his counsel rendered ineffective assistance by failing to advise him of a possible venue defense as to Counts 2 and 3.

I. Waiver of Formal Arraignment

Nunn contends that he did not knowingly and voluntarily waive formal arraignment on his indictment. Doc. No. 42 at 2-3. He then suggests that his counsel rendered ineffective assistance by allowing a waiver of formal arraignment on the indictment. However, no such waiver occurred. Nunn was formally arraigned on the indictment on October 9, 2008, at which time he entered a plea of not guilty. See Case No. 3:08cr28-MHT, Doc. No. 34. Nunn's substantive allegation in this regard is baseless. Consequently, his claim that his counsel rendered ineffective assistance in this regard is likewise without merit and entitles him to no relief.

J. Failure to Advise of Right to Plead "As Otherwise Permissible by Law" and to Raise Defense of Lack of Personal Jurisdiction

Nunn contends that this court violated Rules 5 and 10 of the Federal Rules of Criminal Procedure, because it did not advise him of his right to plead "as otherwise permissible by law" and to raise a defense of lack of personal jurisdiction at the time of his initial appearance and at his arraignment. Doc. No. 42 at 1-5. He contends that his counsel also failed to advise him in this regard and thereby rendered ineffective assistance of counsel. Id. He maintains that because neither the court nor his counsel advised him in this regard, he did not knowingly and voluntarily enter a plea of not guilty at his arraignment. Id.

The gist of Nunn's argument in this regard appears to be that this court and his counsel deprived him of the opportunity to raise the defense of lack of personal jurisdiction when entering his plea at arraignment. Rule 5 of the Federal Rules of Criminal Procedure governs initial appearances, while Rule 10 applies to arraignments. See Fed. R. Crim. P. 5 & 10. Simply put, nothing in either of these rules requires that the court advise a defendant, either at the initial appearance or at arraignment, of the right to raise a defense that the court lacks personal jurisdiction over the defendant. Moreover, there would have been no merit in a "lack of personal jurisdiction" defense, even if it had been asserted by Nunn. "A federal district court has personal jurisdiction to try any defendant brought before it on a federal indictment charging a violation of federal law." United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003). Nunn was brought before the court on a federal indictment charging a violation of federal law. Therefore, the court had personal jurisdiction over Nunn.

Nunn has not established that this court violated either Rule 5 or Rule 10 of the Federal Rules of Criminal Procedure in his case. Nor has he established the meritoriousness of a lack-of-personal-jurisdiction defense. Therefore, he cannot demonstrate that his counsel's failure to advise him at arraignment of his right to raise such a defense was objectively unreasonable or that he was prejudiced by his counsel's failure to do so. Strickland v. Washington, supra. Likewise, he cannot demonstrate that his counsel or the court's failure to advise him of his right to raise this defense rendered his plea at arraignment unknowing and involuntary. Nunn is not entitled to any relief based on this claim.

Also before the court is Nunn's motion to withdraw his guilty plea, filed by Nunn on or around January 1, 2012. Doc. No. 130. The plain language of Rule 11(e) of the Federal Rules of Criminal Procedure dictates that Nunn cannot withdraw his guilty plea by motion.25 He can set aside his guilty plea only through appeal or a motion to vacate sentence filed under 28 U.S.C. § 2255. Accordingly, Nunn's motion to withdraw his guilty plea should be DENIED.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that

(1) The § 2255 motion, as amended, be DENIED, because the claims therein do not entitle Nunn to relief; and

(2) The motion to withdraw the guilty plea (Doc. No. 130) be DENIED. It is further

ORDERED that on or before June 12, 2012, the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the 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 in the Recommendation 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 Sec., Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).