Final Report and Recommendation — Deldrick D. Jackson v. United States (N.D. Ga., Dkt. 83, February 21, 2020)

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This is a United States Magistrate Judge's Final Report and Recommendation filed February 21, 2020, in the United States District Court for the Northern District of Georgia, on the Section 2255 motion to vacate of Deldrick D. Jackson, criminal indictment no. 1:17-CR-0141-ELR-RDC-1 and civil file no. 1:19-CV-0928-ELR-RDC. It states that he pleaded guilty to conspiracy to escape custody and escape from custody and received a total eighteen-month sentence. It addresses three grounds: the Bureau of Prisons' sentence calculation, ineffective assistance of counsel at sentencing, and entrapment. The Magistrate Judge recommends that ground one be DISMISSED for lack of jurisdiction, that grounds two and three and the motion to vacate be DENIED, and that a COA be DENIED.

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“Final Report and Recommendation — Deldrick D. Jackson v. United States (N.D. Ga., Dkt. 83, February 21, 2020).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-17-cr-00141-dkt-83-n-d-ga-dcda00ec51/, SHA-256 811c76fe426e74ee0ff0a47acc2cac238ff25ee5aee25a1568b21f7d010ab091.

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Case 1:17-cr-00141-ELR-RDC Document 83 Filed 02/21/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DELDRICK D. JACKSON, : MOTION TO VACATE
Movant, : 28 U.S.C. § 2255
:
v. : CRIMINAL INDICTMENT NO.
: 1:17-CR-0141-ELR-RDC-1
UNITED STATES OF AMERICA, :
Respondent. : CIVIL FILE NO.
: 1:19-CV-0928-ELR-RDC

UNITED STATES MAGISTRATE JUDGE’S
FINAL REPORT AND RECOMMENDATION

Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

federal sentence entered in this Court under the above criminal docket number. The

matter is before the Court on the motion to vacate [77] and Respondent’s response

[79]. For the reasons discussed below, Movant’s motion to vacate and a certificate

of appealability (COA) are due to be denied.

I. Background

Relevant to the convictions that Movant challenges in this action, Movant

previously was convicted on federal drug and money laundering charges in the

United States District Court for the Middle District of Georgia, for which, in 2013,

he received a total 130-month sentence. United States v. Jackson, No. 5:11-cr-0083-
Case 1:17-cr-00141-ELR-RDC Document 83 Filed 02/21/20 Page 2 of 13

MTT-CHW-2 (M.D. Ga. Aug. 2, 2013). As stated by Movant, while serving a

portion of his sentence at the prison camp in Atlanta, Georgia, he left the prison camp

at least fourteen times, returning each time within an hour or two. (Mot. to Vacate at

3, ECF No. 77). On or about April 13, 2017, Movant again left the prison camp,

without authorization, and was arrested before he returned. (See Def. Second

Sentencing Mem. at 2, ECF No. 69).

In April 2017, the grand jury for the Northern District of Georgia charged

Movant with conspiracy to escape custody and escape from custody. (Indictment at

1-3, ECF No. 10). Movant pleaded guilty to both charges, and the Court accepted

his plea. (See Guilty Plea Tr. at 21, ECF No. 37; 11/14/2017 Minute Entry, ECF No.

65; Sentencing Tr. at 2, 24-25, ECF No. 82).1 By judgment entered on February 27,

1
Movant initially pleaded guilty only to the conspiracy count, and (upon the
Court’s granting his motion to withdraw the negotiated plea agreement and allowing
him to proceed on a non-negotiated plea of guilty to the conspiracy count), he later,
in a non-negotiated plea, also pleaded guilty to the escape count. (See Sentencing Tr.
at 2, 24-25).
The Court notes that Movant’s conduct, which included “meeting with his wife
for []conjunal relations and a quick bite to eat[,]” also included conspiring to provide
other inmates, in exchange for a fee, with transportation from the USP Atlanta to
various restaurants, hotels, and residences and possessing contraband. (Mot. to

2
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2018, the Court imposed a total eighteen-month sentence, to run consecutively with

his term of imprisonment in 5:11-cr-0083. (See J., ECF No. 73).

In his motion to vacate, Movant presents the following three grounds for relief:

(1) the Federal Bureau of Prisons (BOP) has incorrectly calculated his sentence,

(2) Movant’s counsel provided ineffective assistance at sentencing, and (3) Movant

committed his crimes because he was entrapped. (Mot. to Vacate at 2-4). 2

As to ground one, the Court previously informed Movant that a challenge to

the BOP’s calculation of Movant’s sentence is not amendable to relief under § 2255.

(Order of Feb. 27, 2019, at 2 n.1, ECF No. 78). Such challenge is a challenge to the

execution of Movant’s sentence, and, after exhaustion of Movant’s administrative

remedies with the BOP, it must be brought in a 28 U.S.C. § 2241 petition in the

district within which Movant is confined, which is not this district as Movant

Vacate at 3; Plea Tr. at 20).
2
In the concluding paragraph of his motion to vacate, Movant states “in light
of the foregoing, [Movant] respectfully requests this Honorable Court to grant his
motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, allow
[Movant] to withdraw his guilty plea and proceed to trial . . . .” (Mot. to Vacate at
5). The Court observes that Movant has not challenged his guilty plea in these
proceedings, and his conclusory request to withdraw his guilty plea and proceed to
trial fails to state a claim.
3
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currently is confined in Florida. See United States v. Kinsey, 393 F. App’x. 663, 664

(11th Cir. 2010) (stating that § 2241 is the appropriate means for challenging the

BOP’s calculation and execution of a sentence, that such challenge must be brought

in the district in which the inmate is incarcerated, and that the court in a district where

inmate is not incarcerated lacks jurisdiction). Ground one must be dismissed as this

Court lacks jurisdiction to consider the matter. Grounds two and three are discussed

further below.

II. 28 U.S.C. § 2255 Standard

Section 2255 of Title 28 allows a district court to vacate, set aside, or correct

a federal sentence that was imposed in violation of the Constitution or laws of the

United States or was imposed by a court without jurisdiction, exceeds the maximum

sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C.

§ 2255. The § 2255 movant bears the burden to establish his right to collateral relief,

Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015), which is limited.

Collateral review of a claim that could have been raised on direct appeal, but

was not, is foreclosed unless the movant can show cause and prejudice for his default

or actual innocence. Fordham v. United States, 706 F.3d 1345, 1349 (11th Cir. 2013).

“Once [a] defendant’s chance to appeal has been waived or exhausted, . . . we are
4
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entitled to presume he stands fairly and finally convicted,” and “to obtain collateral

relief a prisoner must clear a significantly higher hurdle than would exist on direct

appeal.” United States v. Frady, 456 U.S. 152, 164, 166 (1982).

Section 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.” Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (quoting Richards v. United

States, 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted). A

constitutional claim of ineffective assistance of counsel, which generally cannot be

fully litigated on direct appeal, is properly raised on collateral review in order to

allow for adequate development and presentation of relevant facts. Massaro v.

United States, 538 U.S. 500, 505-09 (2003).

“The district court is not required to grant a petitioner an evidentiary hearing

if the § 2255 motion ‘and the files and records of the case conclusively show that the

prisoner is entitled to no relief.’” Rosin v. United States, 786 F.3d 873, 877 (11th

Cir. 2015) (quoting § 2255(b)). That is the case here, as shown in the discussion

below.

5
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III. Discussion

A. Ground Two, Ineffective Assistance of Counsel at Sentencing

The inmate camp in Atlanta, in which Movant was confined, is within the

perimeter fence for the United States Penitentiary (USP) in Atlanta. (PSR ¶¶ 8, 10,

13, ECF No. 81). In Movant’s second sentencing memorandum, counsel

(1) conceded that a reduction under U.S.S.G. § 2P1.1 was unwarranted as the prison

camp that Movant left could not be considered a “non-secure” facility but (2) argued

that the Court should consider a departure from the recommended guidelines

sentence and should impose an eighteen-month term of imprisonment. (Def. Second

Sentencing Mem. at 1-4).

At sentencing, the Court found (1) that Movant had a total offense level of

thirteen (a base offense level of thirteen, plus three levels for a multi-count

adjustment, and less thee levels for acceptance of responsibility), and a criminal

history of V and (2) that his guidelines range was thirty to thirty-seven months.

(Sentencing Tr. at 19). Counsel (1) admitted that the offense level started at thirteen

as Movant escaped from a camp and “there is a fence there” (but noted that Movant

had walked across the railroad tracks where there was no fence) and (2) argued for a

downward departure – to eighteen months – because, among other things, Movant
6
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would have come back (as he always had when he previously had escaped) if he had

not been arrested and because “in the realm of escape cases, this is relatively small

potatoes.” (Id. at 24, 26-28). The Court decided “to downwardly depart significantly

from the guidelines” and, as stated earlier, imposed a total eighteen-month sentence,

to run consecutively with Movant’s term of imprisonment in 5:11-cr-0083. (Id. at

40-41).

In his second ground for relief, Movant asserts that counsel’s failure to argue

for a seven-level decrease under § 2P1.1(b)(2) or for a three-level departure under

U.S.S.G. § 5K2.0 was ineffective in light of the fact that Movant was meeting his

wife and previously had returned from such meetings within one or two hours (and

presumably would have again returned had he not been arrested). (Mot. to Vacate at

3-4). Respondent argues that counsel was not ineffective in failing to pursue a

decrease under § 2P1.1(b)(2) as that section applies only when a defendant has

(1) escaped from non-secure custody (which Movant did not do as the prison camp

has a perimeter fence) and (2) returned voluntary within ninety-six hours (which

Movant did not do as he was arrested). (Resp’t Resp. at 7, ECF No. 79). Respondent

argues that counsel also was not ineffective for failing to seek a three-level downward

7
Case 1:17-cr-00141-ELR-RDC Document 83 Filed 02/21/20 Page 8 of 13

departure because counsel did seek a downward departure and a below-guidelines

sentence of eighteen months. (Id. at 8).

A criminal defendant possesses a Sixth Amendment right to “reasonably

effective” legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

show constitutionally ineffective assistance of counsel, a movant must establish

(1) that counsel’s representation was deficient and (2) that counsel’s deficient

representation prejudiced him. Id. at 690-92. The Court may resolve an ineffective

assistance claim based on either of the above prongs. Pooler v. Sec’y, Fla. Dep’t of

Corr., 702 F.3d 1252, 1269 (11th Cir. 2012).

Under the first prong, a movant must show that “in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance.” Strickland, 466 U.S. at 690. The movant must

show that “no competent counsel would have taken the action that his counsel did

take.” United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (internal

quotation marks omitted). Under the second prong, a movant “must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
8
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The sentencing guidelines dictate, “If the defendant escaped from non-secure

custody and returned voluntarily within ninety-six hours, decrease the offense level

under § 2P1.1(a)(1) by 7 levels . . . .” U.S.S.G. § 2P1.1(b)(2).

“Non-secure custody” means custody with no significant physical
restraint (e.g., where a defendant walked away from a work detail
outside the security perimeter of an institution; where a defendant failed
to return to any institution from a pass or unescorted furlough; or where
a defendant escaped from an institution with no physical perimeter
barrier.)

U.S.S.G. § 2P1.1, Appl. Note 1. “‘Returned voluntarily’ includes voluntarily

returning to the institution or turning one’s self in to a law enforcement authority as

an escapee (not in connection with an arrest or other charges).” U.S.S.G. § 2P1.1,

Appl. Note 2. Section 5K2.0 of the guidelines allows the court to depart upward or

downward from the guidelines range in certain circumstances.

Movant fails to show that no competent counsel would have failed to pursue a

seven-level decrease under § 2P1.1(b)(2) when the prison camp from which he

escaped was within a secured perimeter and when Movant was returned to custody

as a result of his arrest, which does not qualify as a voluntary return to custody.

Further, Movant fails to show that counsel was deficient for failing to seek a three-

level downward departure. Counsel in fact sought a downward departure to eighteen

9
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months, from the thirty to thirty-seven month guidelines range, which departure the

Court granted.3 Movant fails to show that counsel was deficient.

B. Ground Three, Entrapment

Movant argues in his third ground that he was unfairly entrapped by prison

officials’ actions and behavior, i.e., (1) officials telling prisoners that, if they left the

camp for any reason, they must return and (2) officials failing to prevent Movant

from leaving on the day in question. (Mot. to Vacate at 3-4). Respondent argues that

this ground fails because Movant, by pleading guilty, waived the defense of

entrapment. (Resp’t Resp. at 9).

By entering a guilty plea, a defendant “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.” United States v. De La Garza, 516

F.3d 1266, 1271 (11th Cir. 2008) (quoting Wilson v. United States, 962 F.2d 996,

997 (11th Cir. 1992)) (internal quotation marks omitted); Tiemens v. United States,

724 F.2d 928, 929 (11th Cir. 1984) (per curiam) (Once “a criminal defendant has

3
Section 5K2.0 allows departures from the guidelines range, which is stated
in months, and it is unclear why Movant refers to a three-level departure.
10
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solemnly admitted in open court that he is in fact guilty of the offense with which he

is charged, he may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea.” (quoting

Tollett v. Henderson, 411 U.S. 258, 267 (1973)) (internal quotation marks omitted)).

Movant pleaded guilty, and the Court found that his guilty plea was valid. (See

Guilty Plea Tr. at 21; 11/14/2017 Minute Entry; Sentencing Tr. at 2, 24-25). As

stated, “a valid plea of guilty constitutes a waiver of all non-jurisdictional defenses.

This includes the defense of entrapment.” Smith v. United States, 447 F.2d 487, 488

(5th Cir. 1971). Accordingly, ground three fails.

IV. Certificate of Appealability (COA)

Under Rule 11 of the Rules Governing § 2255 Cases, “[t]he district court must

issue or deny a certificate of appealability when it enters a final order adverse to the

applicant. . . . If the court issues a certificate, the court must state the specific issue

or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” The Court

will issue a certificate of appealability “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

applicant “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Melton v. Sec’y, Fla.
11
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Dep’t of Corr., 778 F.3d 1234, 1236 (11th Cir. 2015) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)) (internal quotation marks omitted).

When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim,
the prisoner in order to obtain a COA, still must show both (1) “that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right” and (2) “that jurists of
reason would find it debatable whether the district court was correct in
its procedural ruling.”

Lambrix v. Sec’y, DOC, 872 F.3d 1170, 1179 (11th Cir. 2017) (quoting Slack, 529

U.S. at 484).

The undersigned recommends that a COA should be denied because it is not

reasonably debatable that Movant fails to show that he is entitled to collateral relief.

If the Court adopts this recommendation and denies a COA, Movant is advised that

he “may not appeal the denial but may seek a certificate from the court of appeals

under Federal Rule of Appellate Procedure 22.” Rule 11(a), Rules Governing § 2255

Proceedings for the United States District Courts.

V. Conclusion

Accordingly,

IT IS RECOMMENDED that Movant’s ground one be DISMISSED for lack

of jurisdiction; that Movant’s remaining grounds two and three and his motion [77]
12
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to vacate, set aside, or correct his federal sentence be DENIED; and that a COA be

DENIED.

The Clerk of Court is DIRECTED to withdraw the referral of this § 2255

motion to the undersigned Magistrate Judge.

IT IS SO RECOMMENDED and DIRECTED, this 21st day of February,

2020.

___________________________________
REGINA D. CANNON
UNITED STATES MAGISTRATE JUDGE

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