USA v. KERNEY

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
UNITED STATES OF AMERICA
v. Case Nos.: 1:22cr22/AW/MAL
1:26cv11/AW/MAL
CARLOS KENTRAIL KERNEY
REPORT AND RECOMMENDATION
This case is before me on Carlos Kentrail Kerney’s motion under 28 U.S.C.
§ 2255. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides in relevant part A[i]f it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion and direct the clerk
to notify the moving party.” Because the grounds Kerney raises in his motion are
without merit, his motion should be summarily dismissed.
I. Background
Kerney was convicted after a jury trial of possession with intent to distribute
a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
841(b)(1)(D) and 851 (Count One), carrying a firearm during or in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two), and
possession of a firearm or ammunition by a convicted felon in violation of 18 U.S.C.
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§§ 922(g)(1) and 924(e) (Count Three). ECF No. 83. The court sentenced him to a
total term of 360 months’ imprisonment, which consisted of 300 months on each of
Counts One and Three to run concurrently with each other, and 60 months on Count
Two, to run consecutively with the terms imposed on Counts One and Three. Id.
Kerney now seeks to vacate his conviction and sentence on Count Three, raising two
claims of ineffective assistance of counsel.
II. Kerney’s claims
A. Ground One—Failure to file a motion to dismiss
Kerney asserts trial counsel was ineffective for not moving to dismiss Count
Three, possession of a firearm by a convicted felon, as “unconstitutional as applied”
to him. He provides no additional facts in support of his claim, but such a challenge
presumably arises under either the Second Amendment or the Commerce Clause.1
Neither provision offers a viable basis to dismiss Count Three of the indictment
under controlling law.
The Eleventh Circuit recently rejected the argument that the felon-in-
possession ban is unconstitutional under the Second Amendment. United States v.
Dubois, 139 F. 4th 887 (11th Cir. 2025). The court held that neither New York State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) nor United States v. Rahimi, 602
1 The Court interprets Kerney’s reference to the “Fifth, Sixth, and Fourteenth Amendments” as
the basis for his ineffective assistance of counsel claim.
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U.S. 680 (2024) abrogated its decision in United States v. Rozier, 598 F.3d 768, 770–
71 (11th Cir. 2010), which upheld the federal law that bars felons from possessing
firearms and ammunition. Dubois, 139 F. 4th at 889, 894.
Similarly, the Eleventh Circuit has repeatedly rejected an argument that the
felon in possession statute is unconstitutional because it exceeds Congress’s power
under the Commerce Clause. United States v. Johnson, 981 F 3d 1171, 1192 (11th
Cir. 2020) (citing cases).
An attorney is not ineffective for failing to make a meritless motion. See e.g.,
Hollis v. United States, 958 F.3d 1120, 1124 (11th Cir. 2020) (counsel not ineffective
for failing to raise meritless objection to use of prior drug convictions as predicate
offenses under ACCA); Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995)
(counsel need not pursue claims which he reasonably believes to be of questionable
merit). Therefore, counsel did not perform deficiently by not moving to dismiss
Count Three as unconstitutional “as applied” to Kerney and this claim should be
summarily dismissed.
B. Ground Two—Failure to object to use of nolo pleas as predicates
Kerney also claims he received ineffective assistance of counsel when the
prosecutor was “allowed to use prior state convictions ‘nolo contendere pleas’ as
predicates for violation of 18 U.S.C. § 922(g).” ECF No. 121 at 5.
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Kerney’s PSR reflects that he pled nolo contendere and was adjudicated guilty
in over a dozen cases. See ECF No. 75, PSR ¶¶s 41-44, 47-55. It is unclear whether
he now asserts it was improper to use a state court nolo contendere plea as the basis
for his conviction (i.e. establishing his status as a felon), or to use the nolo pleas as
predicates for his enhanced sentence under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e). See ECF No. 75, PSR ¶¶s 31, 61, 99. Neither position has merit.
“What constitutes a conviction ... [is] determined in accordance with the law
of the jurisdiction in which the proceedings were held ....” 18 U.S.C. § 921(a)(20).
Under Florida law, a “‘conviction’ means adjudication of guilt irrespective of the
sentence.” United States v. Anton, 546 F.3d 1355, 1357 (11th Cir. 2008) (quoting
Weathers v. State, 56 So. 2d 536, 538 (Fla.1952)). Therefore, if adjudication has
been withheld, a plea of nolo contendere is not a felony conviction. Anton, 546 F.3d
at 1357 (citing United States v. Willis, 106 F.3d 966, 967-68 (11th Cir. 1997)).
Conversely, a nolo contendere plea where there is subsequently an adjudication of
guilt is a conviction. Anton, 546 F.3d at 1357 (quoting United States v. Drayton, 113
F. 3d 1191, 1193 (11th Cir. 1997)). Thus, any of Kerney’s state felony nolo pleas
where there was an adjudication of guilt could have served as the “predicate” felony
for his federal conviction of being a felon in possession of a firearm in violation of
§ 922(g).
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The same reasoning applies to the use of Kerney’s state nolo contendere
pleas as predicates for the ACCA enhancement. A “nolo contendere plea … where
there is subsequently an adjudication of guilt is a conviction under Florida law which
satisfies the requirement of the Armed Career Criminal statute.” Drayton, 113 F.3d
at 1193; see also United States v. Gandy, 917 F.3d 1333, 1342 (11th Cir. 2019)
(“[W]e have repeatedly explained that we treat Florida nolo convictions no
differently than convictions based on guilty pleas or verdicts of guilt for purposes of
the Sentencing Guidelines.”).
Counsel was not ineffective for failing to object to the use of Kerney’s state
nolo contendere pleas as either a basis for his § 922(g) conviction or as predicates
for the application of the ACCA enhancement. Hollis, supra.
C. Kerney’s affidavit
In an abundance of caution, the Court notes Kerney submitted an unsigned
affidavit along with his § 2255 motion in which he alludes to other potential issues.
ECF No. 121 at 20-21. Even if the Court were to credit the unsigned affidavit,
nothing therein alters the conclusion that Kerney’s § 2255 motion should be
summarily dismissed.
First, Kerney appears to state that he believed his “rights were restored” after
completing a prior sentence. Id. at 20. Such a belief would not have supported a
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successful motion to dismiss Count Three of the indictment, or even an acquittal. To
secure a conviction under § 922(g), the Government need only prove (1) a defendant
knowingly possessed a firearm or ammunition; (2) before possessing the firearm or
ammunition he had been convicted of a felony, and (3) he knew he had previously
been convicted of a felony. See ECF No. 62 at 6 (Jury Instructions). The Government
need not prove that a defendant knew the law, that is, that as a convicted felon he
was prohibited from possessing a firearm. See, e.g., United States v. Phyfier, 842 F.
App’x 333, 338 (11th Cir. 2021) (citing Rehaif v. United States, 588 U.S. 225, 237
(2019)); United States v. Trevino, 989 F.3d 402, 405 (5th Cir. 2021).
Second, Kerney claims that trial counsel “never informed [him] that the prior
state convictions would be used against” him, and Kerney “questioned” his attorney
about “signing the stipulations.” ECF No. 121 at 20. To the extent he suggests
counsel was ineffective for having him sign stipulations, he has not met his burden
of showing deficient performance or prejudice.
The record reflects Kerney stipulated to having been convicted of a prior
felony offense and that the firearm and ammunition he was charged with possessing
had traveled in interstate commerce. ECF Nos. 60, 61. The third stipulation of facts
Kerney provided as an exhibit to his § 2255 motion, reflecting that he has twenty-
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five (25) prior felony convictions, does not appear to be in the record.2 See ECF No.
121 at 15. Finally, Kerney specifically waived a jury finding that at least three of his
prior predicate offenses occurred on occasions different from one another. ECF No.
53.
To prevail on a claim of ineffective assistance of counsel, a defendant must
show (1) his attorney’s representation fell below “an objective standard of
reasonableness,” and (2) a reasonable probability exists that, but for counsel’s
unprofessional conduct, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A reviewing court must
“indulge a strong presumption” that counsel’s performance was reasonable and that
the challenged action “might be considered sound trial strategy.” Id. at 689. Here,
through the stipulations, counsel was able to prevent the jury from learning of the
nature and number of Kerney’s prior convictions, an objectively reasonable strategic
decision. See Old Chief v. United States, 519 U.S. 172, 185-91, (1997) (noting risk
of unfair prejudice to the defense when a stipulation is disallowed and other evidence
of the prior offenses are presented to the jury instead). Furthermore, given that
2 It is likely that this stipulation was prepared in the event Kerney decided to testify. If he had
testified, limited information about his prior convictions would have been admissible under Rule
609 of the Federal Rules of Evidence. Kerney waived his right to testify in this case, rendering the
stipulation unnecessary. ECF No. 98 at 182-83 (Tr. p. 345-46).
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Kerney offers nothing to suggest that any of the convictions in question were invalid,
he cannot show prejudice. His argument fails on both prongs.
III. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that
“[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant,” and if a certificate is issued “the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C.
§ 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues
a certificate of appealability. Rule 11(b), § 2255 Rules.
After review of the record, the court finds no substantial showing of the denial
of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84
(2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is
also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: “Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate should
issue.” If there is an objection to this recommendation by either party, that party may
bring this argument to the attention of the district judge in the objections permitted
to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
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1. Kerney’s motion under 28 U.S.C. § 2255 (ECF No. 121) be summarily
DENIED and DISMISSED.
2. A certificate of appealability be DENIED.
Done on January 26, 2026.
s/ Midori A. Lowry
Midori A. Lowry
United States Magistrate Judge
NOTICE TO THE PARTIES
The case was referred to a magistrate judge for the issuance of all preliminary
orders and any recommendations to the district court regarding dispositive matters.
See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Objections to these proposed findings and recommendations must be filed within
fourteen days of the date of the Report and Recommendation. Any different deadline
that may appear on the electronic docket is for the court’s internal use only and does
not control. An objecting party must serve a copy of its objections on all other
parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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