Opinion
CRIMINAL NO. 4:13-CR-24-CDL CIVIL NO. 4:16-CV-190-CDL
01-30-2019
LORENZO HICKSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Pending before the Court are Lorenzo Hickson's original and amended Motions Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 101; Am. Pet., ECF No. 104. For the reasons discussed below, it is recommended that Hickson be denied § 2255 relief, an evidentiary hearing being denied, a Certificate of Appealability be denied, and any motion to proceed in forma pauperis on appeal be denied.
I. PROCEDURAL BACKGROUND
A grand jury indicted Hickson for distributing crack cocaine in an amount in excess of 280 grams, in violation 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2. Indictment, ECF No. 1; Superseding Indictment, ECF No. 37. Hickson retained Shevon Sutcliffe Thomas, who filed a notice of appearance on July 1, 2013. Notice of Appearance, ECF No. 9. Hickson filed two motions to suppress and Respondent responded to the motions. Preliminary Mot. to Suppress, ECF No. 11; Mot. to Suppress Auto. Stop, ECF No. 12; Gov't Resp. in Opp'n to Def.'s Mot. to Suppress Auto. Stop, ECF No. 31.
The Court held two hearings regarding the motion to suppress. Sept. 4, 2013 Tr. of Proceedings, ECF No. 36; Dec. 17, 2013 Tr. of Proceedings, ECF No. 91. The Court denied the motion to suppress and, following a motion to reconsider that ruling, denied the motion for reconsideration. Order, ECF No. 51; Def.'s Mot. for Reconsideration to Suppress Evid., ECF No. 53; Order, ECF No. 57.
Having lost the motion to suppress, Hickson entered a conditional plea to possession with intent to distribute cocaine base, also known as crack cocaine, in an amount in excess of 280 grams under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Change of Plea, ECF No. 60; Plea Agreement, ECF No. 61. The parties agreed "that if the Court of Appeals reverses [the District Court's] ruling denying [the] motion to suppress, . . . [Hickson] would have [the] opportunity to withdraw his plea." Feb. 20, 2014 Tr. or Proceedings at 3, ECF No. 92.
The United States Probation Office ("Probation") prepared a Presentence Investigation Report ("PSI"). PSI, ECF No. 73. Probation calculated the guideline imprisonment range to be 262 to 327 months. PSI at 16, ECF No. 73. The Court sentenced Hickson to 295 months' imprisonment. J. in a Criminal Case, ECF. No. 77.
Hickson filed a timely pro se notice of appeal. Notice of Appeal, ECF No. 79. Hickson requested appointment of alternate appellate counsel and his retained counsel moved to withdraw. Order, ECF No. 86. The Eleventh Circuit Court of Appeals granted Hickson's motion for appointment of counsel and appointed Merritt E. McAlister, with the law firm of King and Spalding LLP. United States v. Hickson, No. 14-12365 (11th Cir. April 10, 2015). "After a thorough review of the briefs and the benefit or oral argument," the Eleventh Circuit affirmed the District Court's order denying Hickson's motion to suppress. Order, ECF No. 97.
Hickson filed an original and amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 101; Am. Pet., ECF No. 104. Respondent filed a response. Gov't Resp. to Pet'r Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 103. The United States Magistrate Judge issued a Recommendation that Movant's § 2255 motion be denied. R. & R., ECF No. 106. Movant objected. Obj. to R & R., ECF No. 109. The District Court remanded the action to the United States Magistrate Judge for further consideration. Order, ECF No. 110.
II. STANDARD OF REVIEW
28 U.S.C. § 2255 provides that persons sentenced in federal court can attack their sentences on four different grounds:
(1) "that the sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentences," (3) "that the sentence was in excess of the maximum authorized
by law," and (4) that the sentence "is otherwise subject to collateral attack."Hill v. United States, 368 U.S. 424, 426-27 (1962) (quoting 28 U.S.C. § 2255). "[C]ollateral review is not a substitute for a direct appeal. . . ." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). To obtain relief under § 2255, Hickson faces a "significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).
The Court construes Hickson's pro se § 2255 motion "more liberally than one filed by an attorney." Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002). It, however, may deny relief without holding an evidentiary hearing when the claims are "'patently frivolous,'" or "'based upon unsupported generalizations,'" or "'affirmatively contradicted by the record.'" Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (citation omitted).
III. CLAIMS
Hickson raises ineffective assistance of counsel claims. Hickson entered into a conditional guilty plea in which he waived his rights to appeal or collaterally attack his conviction or sentence with the exception of his right to appeal the denial of his motion to suppress. Plea Agreement at 3-5, ECF No. 61. But, a waiver of collateral review in a plea agreement does not operate to waive the right to argue that the plea agreement itself was not knowing and voluntary because the agreement was the result of ineffective assistance of counsel. Patel v. United States, 252 F. App'x 970, 974 (11th Cir. 2007) (holding that collateral attack waiver does not bar a § 2255 challenge to the "validity of the plea or agreement"). Also, the Court finds that Hickson has not waived the right to raise his ineffective assistance of appellate counsel claim because (1) Hickson's plea was conditional; he reserved the right to appeal the District Court's denial of his motion to suppress, Plea Agreement at 8, ECF No. 61; (2) Hickson had a right to the effective assistance of counsel during this direct appeal, See Douglas v. California, 472 U.S. 353, 356 (1963); and (3) Respondent does not argue that Hickson waived collateral review of his ineffective assistance of appellate counsel claim in his conditional plea agreement, Gov't Resp. to Pet'r Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 103.
To establish that counsel's representation was constitutionally defective, Hickson must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "'Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland.'" Dell v. United States, 710 F.3d 1267, 1273 (11th Cir. 2013) (quoting Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009)).
To show deficient performance, Hickson must establish that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. He must show by a preponderance of the evidence that "particular and identified acts or omissions of counsel 'were outside the wide range of professional competent assistance.'" Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (citations omitted). Judicial scrutiny of counsel's performance is deferential; the Court presumes counsel performed reasonably and "'made all significant decisions in the exercise of reasonable professional judgment.'" Strickland. 466 U.S. at 688. (citations omitted); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir 1993) (citation omitted) (stating that "[c]ourts must presume effectiveness and should avoid second-guessing with the benefit of hindsight.")
To satisfy the prejudice prong, Hickson must show "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.
Because Hickson must establish both deficient performance and prejudice to prevail, the Court need not always address both prongs. If Hickson cannot establish deficient performance, the Court need not consider prejudice. Likewise, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which . . . will often be so, that course should be followed." Id. at 697.
A. Ineffective assistance of trial counsel resulting in a plea that was not knowing and voluntary
In his Objection to the United States Magistrate Judge's first Report and Recommendation, Hickson argues for the first time that he entered a guilty plea "unknowingly and unintelligently" because trial counsel "lure[d]" him into doing so. Obj. to R. & R. at 5, ECF No. 109. Hickson states that trial counsel told him to enter the conditional plea even though trial counsel "basically didn't know what he was doing" and later withdrew from the case because of this lack of knowledge. Obj. to R. & R. at 5, ECF No. 109. Hickson argues that "[n]o competent attorney would advise a client to enter a plea with the only hope of winning an appeal on a matter" in which the attorney had no knowledge. Obj. to R. & R. at 5, ECF No. 109. Hickson states that "[i]f it had not been for trial counsel's false hopes of winning the appeal, [he] would not have pleaded guilty and insisted on going to trial." Obj. to R. & R. at 5, ECF No. 109.
Nowhere in Hickson's original or amended § 2255 motions did he argue that his guilty plea was not knowing and voluntary. Because this was first raised in his objection to the first Report and Recommendation, the Court should exercise its discretion and decline to consider the argument. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). But, should the Court consider the argument, Hickson's request for relief must still be denied because the argument is meritless.
"The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citations omitted). Here, Hickson claims his plea was not knowing and voluntary because his trial counsel was ineffective and misinformed him regarding his "chance of winning on appeal." Obj. to R. & R. at 4, ECF No. 109. The two-part standard to determine ineffective assistance of counsel that was announced in Strickland applies to the plea process. Hill, 474 U.S. at 57 (citation omitted). Thus, Hickson must show that trial counsel's advice was outside "'the range of competence demanded of attorneys in criminal cases,'" Hill, 474 U.S. at 56 (citations omitted), and "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" Id. at 59.
The only argument that Hickson makes to establish deficient performance is that trial counsel sought to withdraw from the case on appeal. Obj. to R & R at 5, ECF No. 109. Thomas did seek to withdraw from Hickson's appeal because he "lack[ed] the requisite skills, legal expertise and legal knowledge required [to] further represent . . . [Hickson] on his [a]ppeal." United States v. Hickson, No. 14-12365-E, Req. to Withdraw as Att'y of R. (11th Cir. Aug. 13, 2014). But, this fact alone does not establish that trial counsel's advice to enter a conditional guilty plea and pursue the motion to suppress on appeal "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Furthermore, even if the Court assumes deficient performance, it cannot find prejudice.
Hickson claims that but for trial counsel's "false hopes of winning the appeal," he "would not have pleaded guilty but would have insisted on going to trial." Obj. to R. & R. at 5, ECF No. 109. To show prejudice, Hickson "'must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.'" Harvey v. United States, 674 F. App'x 865, 869 (11th Cir. 2016) (citing Padilla v. Kentucky, 559 U.S 356, 372 (2010)).
Having lost his motion to suppress in the District Court, the evidence against Hickson was overwhelming. Specifically, the evidence showed that on October 17, 2012, a Harris County Sheriff's Deputy parked along I85 pulled Hickson and passenger Myesha Weeks over for following too closely. Noticing that Hickson and Weeks acted nervous, the deputy called in a canine unit and instructed Hickson and Weeks to exit the car. Weeks attempted to hide a paper bag under her purse as she exited the car. The deputy gave her the option of allowing him to search the bag or returning the bag to the car. She chose the latter. When the canine stopped at the passenger door of the car, Hickson ran to the car, jumped in the driver's door, and started to drive away. A deputy dove through the passenger side window and struggled with Hickson to stop the car. Hickson stopped the car when the deputy inside the vehicle drew his weapon. The deputy standing outside the vehicle saw an object come from the passenger window the car. After Hickson and Weeks were secured, the deputies found a paper bag on the ground outside the passenger side of the vehicle. The bag contained 623.61 grams of crack cocaine. PSI at 4-5, ECF No. 73.
By entering the plea agreement, Hickson received downward adjustments for acceptance of responsibly and for entering a timely plea agreement. PSI at 3, 7, ECF No. 73. The Government agreed to accept the guilty plea in full satisfaction of all possible federal criminal charges. PSI at 3, ECF No. 73. Plus, Hickson retained his right to appeal the denial of his motion to suppress. PSI at 3, ECF No. 73. Given the evidence against Hickson, "it would not have been rational to reject a plea agreement and [Hickson's] conclusory assertion to the contrary is contradicted by the record." Harvey, 647 F. App'x. at 869. Hickson, therefore, cannot satisfy the prejudice prong of the Strickland analysis. Having failed to satisfy Strickland, this claim must be denied.
B. Ineffective assistance of appellate counsel
In his original § 2255 motion, Hickson raises two claims. The first is "[i]neffective assistance of counsel on appeal from motion to suppress" and the second is "[n]ewly [d]iscovered [e]vidence." Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 2, 5, ECF No. 101. The claims are related. Specifically, Hickson argues that "newly discovered evidence" demonstrates that appellate counsel, Merritt McAlister, performed ineffectively when he "failed to apprise the court that the discovery of the drugs transpired before the flight and abandonment." Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 14, ECF No. 101. According to Hickson, Deputy Harmon, along with his canine, actually discovered the drugs when the canine alerted to the passenger door of the car. Id. He argues that "[a]lthough the drugs had not yet actually been seized, [the drugs] . . . had already been discovered before [Hickson] attempted to flee. The discovery [arose] from the unconstitutional acts of the deputy and not as a result of Movant's abandonment of the drugs." Id. Movant argues that "this information was never presented or argued in Court." Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 14, ECF No. 101.
In his response, Respondent argues, inter alia, that a claim of newly discovered evidence is not cognizable in a first § 2255 motion and, even if it is, evidence regarding when the canine alerted on the passenger side door of the car is hardly new; it was presented in the September 4, 2013 hearing in the District Court. Gov't Resp. to Pet'r Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, at 3, 5-6, ECF No. 103.
Presumably in response to Respondent's arguments regarding the new evidence claim, Hickson filed an amended motion in which he "waives ground two" (the newly discovered evidence claim) and clarifies his ineffective assistance of appellate counsel claim. Am. Pet. at 2, ECF No. 104. In his amended motion, Hickson makes three arguments regarding how appellate counsel performed ineffectively.
First, Hickson complains that appellate counsel, following the lead of trial counsel "failed to challenge the erroneous fact that Hickson was the one who actually threw the bag containing the drugs from the car window." Am. Pet. at 3, ECF No. 104. Hickson argues he could not possibly have thrown the bag from the window. Am. Pet. at 4, ECF No. 104. Instead, "it was Deputy Harmon who actually threw the bag out the window when the car came to a stop to prevent Hickson from obtaining it. . . ." Am. Pet. at 5, ECF No. 104. Thus, according to Hickson he could not have abandoned the drugs.
In the December 17, 2013 hearing, Deputy Joe Harmon, the officer who jumped in the passenger side window as Hickson drove away, testified that he did not throw anything out of the car window. Dec. 17, 2013 Tr. of Proceedings at 26, ECF No. 91. The District Court noted that a "genuine factual dispute exists as to how the bag containing the drugs got from inside [Hickson's] car onto the public roadway." Order at 6, ECF No. 51. The Court found Harmon's testimony to be credible and found that Hickson, not Harmon, tossed the bag from the car. Order at 7-8, ECF No. 51.
The Eleventh Circuit reviews such factual determinations only for clear error. United States v. Virden, 488 F.3d 1317, 1321 (11th Cir. 2007) (citation omitted); United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995) (citation omitted) (stating that the district court has the opportunity to observe witnesses first hand and, therefore, the appellate court "give[s] great deference to the district court's assessment of the credibility and evidentiary content of their testimony"). Although he was faced with this factual finding, appellate counsel did not concede Hickson threw the drugs from the car. Instead, he argued that
[h]ow those drugs found their way outside the car—whether Deputy Harmon dislodged them when he left the vehicle or whether Hickson threw them past Deputy Harmon from the driver's side of the vehicle—is debatable, but ultimately immaterial. They were discovered during, and as a result of, the unconstitutionally prolonged seizure and, therefore, may not be used against Mr. Hickson.United States v. Hickson, No. 14-12365-E, Br. of Appellant at 21-22 (11th Cir. June 16, 2015).
Given the district court's factual finding and appellate counsel's actual argument, appellate counsel did not perform ineffectively for failing to argue that Harmon, not Hickson, threw the drugs from the car. Also, even if appellate counsel had made such an argument, there is not a reasonable probability of a different outcome on appeal given the deferential review that appellate courts apply to a district court's factual determination and credibility assessments.
Second, Hickson argues that appellate counsel, again following the lead of trial counsel, failed to argue that the drugs were actually discovered by Deputy Harmon's canine before Hickson jumped into the car to flee the scene, and this discovery was the result of the unconstitutionally prolonged traffic stop. Mot under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody at 14, ECF No. 101; Am. Pet. at 3-4, ECF No. 104; Objection to R. & R. at 7-8, ECF No. 109. Hickson argues the canine's discovery of the drugs, not the drug's ultimate seizure after they were thrown from the car, is the relevant event. Id. Because the canine's discovery of the drugs occurred before he attempted to flee, there is no "intervening event" that broke the causal connection between the prolonged traffic stop and the discovery of the drugs. Objection to R. & R. at 8, ECF No. 109.
On direct appeal, counsel made two arguments for suppressing the drug evidence. He argued that Hickson's prolonged detention following the traffic stop was unconstitutional, and the drugs should be suppressed as the fruit of the poisonous tree of that illegal detention. United States v. Hickson, No. 14-12365-E, Br. of Appellant at 12-13 (11th Cir. June 16, 2015). Alternatively, he argued that a second illegal seizure occurred in Hickson's car when Hickson lawfully tried to leave the traffic stop, and "[t]he drugs, which were displaced from the vehicle as the seizure was happening, therefore, must be suppressed." United States v. Hickson, No. 14-12365-E, Br. of Appellant at 15 (11th Cir. June 16, 2015).
Appellate counsel did not make the argument Hickson sets forth—that the canine's discovery of drugs came as a result of the illegal prolonged detention and the drugs should have, therefore, been suppressed regardless of what transpired afterwards. "Appellate counsel is not ineffective for failing to raise frivolous or non-meritorious arguments on appeal. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001). Moreover, "effective advocates 'winnow out' weaker arguments even though the weaker arguments may be meritorious." Heath, 941 F.2d at 1131 (citation omitted). This argument, though not frivolous, is certainly weak in that Hickson cites no Supreme Court or Eleventh Circuit case supporting his argument.
Prejudice exists only if there is a reasonable probability of a different result had appellate counsel raised this argument. Given the lack of precedent, Hickson has not shown prejudice resulting from appellate counsel's failure to make this argument. Bolstering this lack of prejudice finding is the fact that the Eleventh Circuit has already seen and rejected this argument. Hickson presented this argument to the Eleventh Circuit in his pro se Petition for Rehearing or Rehearing En Banc, which he filed after the Eleventh Circuit affirmed the District Court's denial of his motion to suppress. United States v. Hickson, 14-12365-EE, Pet. for Reh'g or Reh'g En Banc (11th Cir. Feb. 19, 2016). Hickson argued, as he does in his motion to vacate, that
the drugs were seized after the flight, but . . . the drugs were actually discovered during the illegal drug sniff which was the product of a prolonged detention. If the drugs were discovered through the positive alert of the canine, then Mr. Hickson's flight and abandonment can't be considered an intervening event that breaks the ca[us]al connection between the illegally prolonged stop and the discovery of the drugs[.] Mr. Hickson's subsequent flight cannot constitute an intervening event, because it took place after the discovery of the drugs through the canine alert of the vehicle.United States v. Hickson, 14-12365-EE, Pet. for Reh'g or Reh'g En Banc at 3-4 (11th Cir. Feb. 19, 2016). The Eleventh Circuit denied Hickson's Petition for Rehearing or Rehearing En Banc. United States v. Hickson, 14-12365-EE, Order on Pet. for Reh'g or Reh'g En Banc (11th Cir. March 29, 2016).
Third, Hickson argues that appellate counsel "failed to challenge the lower court's decision with existing and conflicting authority" that holds abandoned property must be excluded when the abandonment is "precipitated and preceded by a [F]ourth [A]mendment violation." Am. Pet. at 5, ECF No. 104. Hickson fails to cite any of this "existing and conflicting authority" that he faults appellant counsel for failing to raise. Am. Pet. at 5, ECF No. 104. Regardless, appellate counsel made this argument. Citing United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982), and United States v. Brodie, 742 F.3d 1058 (D.C. Cir. 2014), as well as numerous Fifth Circuit cases, appellate counsel argued that dropping illegal drugs, i.e., abandonment of drugs, is not criminal conduct that will break the causal chain when it occurs in close proximity to an illegally prolonged stop. United States v. Hickson, No. 14-12365-E, Br. of Appellant at 21-31 (11th Cir. June 16, 2015). He argued that
abandonment of contraband is also not a crime, independent or otherwise. Both Bailey and Beck make clear that abandonment of drugs in response to an illegal detention is not a new crime. Nor does abandonment typically break the causal chain when it occurs in close connection with the illegal detention or search. . . . And there is no question here that the abandonment occurred in close proximity, as part of a single sequence of events triggered by the unlawfully prolonged stop.United States v. Hickson, No. 14-12365-E, Br. of Appellant at 29-30 (11th Cir. June 16, 2015).
In short, the record shows that appellate counsel made the argument that Hickson claims he was ineffective for failing to make.
Having failed to show deficient performance and prejudice, relief must be denied on all three of Hickson's ineffective assistance of appellate counsel claims.
C. Evidentiary Hearing
There is no need for an evidentiary hearing in this case. If there are facts in dispute, the district court should hold an evidentiary hearing. However, the Court may deny relief without holding an evidentiary hearing when the claims are "'patently frivolous,'" or "'based upon unsupported generalizations,'" or "'affirmatively contradicted by the record.'" Holmes, 876 F.2d at 1553 (citation omitted). Hickson's ineffective assistance claims are largely based only conclusory allegations and are contradicted by the record.
D. Certificate of Appealability and In Forma Pauperis on Appeal
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the "[C]ourt must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If the Court issues a certificate of appealability, it "must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Section 2253(c)(2) states that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." The Court must determine "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citations omitted). If a procedural ruling is involved, the petitioner must "demonstrate that a procedural ruling barring relief is itself debatable among jurists of reason; otherwise, the appeal would not 'deserve encouragement to proceed further.'" Buck v. Davis, 137 S. Ct. 759, 777 (2017) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Under this standard, a certificate of appealability should be denied. If Hickson files an objection to this Report and Recommendation, he may include any arguments he wishes to make regarding a certificate of appealability in the objection. If the District Court adopts this recommendation and denies a certificate of appealability, Hickson 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 of the Rules Governing § 2255 Proceedings in the United States District Courts.
Any application to appeal in forma pauperis should also be denied because there is no good faith basis for an appeal. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24.
IV. Conclusion
It is RECOMMENDED that Hickson be DENIED § 2255 relief. Additionally, it is RECOMMENDED that the Court deny an evidentiary hearing, certificate of appealability and any motion to proceed in forma pauperis on appeal in its final order.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 30th day of January, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE