USA v. KEMP et al

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Case No. 5:16cr3/RH/MAL
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
UNITED STATES OF AMERICA
v. Case Nos.: 5:16cr3/RH/MAL
5:22cv265/RH/MAL
LARRY BERNARD GILMORE,
Defendant.
_____________________________/
REPORT AND RECOMMENDATION
This case is before the Court on Defendant Larry Bernard Gilmore’s § 2255
motion and accompanying declaration and memorandum. ECF Nos. 441, 442, 443.
The Government filed a response, and Gilmore filed a reply with affidavit. ECF Nos.
448, 451, 452. After careful consideration of the motion, the record, and the relevant
law, I recommend that relief be denied without an evidentiary hearing because
Gilmore’s claims are without merit.
I. BACKGROUND
Gilmore is currently serving a 204-month sentence for conspiracy to interfere
with commerce by robbery in violation of 18 U.S.C. § 1951(a); interference with
commerce by robbery and aiding and abetting in violation of 18 U.S.C. §§1951(a)
and 2; and brandishing a firearm in furtherance of a crime of violence and aiding and
abetting in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Gilmore was found
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guilty of the offenses after a five-day jury trial, where he was tried jointly with co-
defendants Lewis Jones III and Michael Bernard Gilmore (his brother). Another co-
defendant, Abigail Kemp, entered a guilty plea before trial and testified against them.
United States v. Gilmore, 833 F. App’x 790, 792 (11th Cir. 2020).
Gilmore is seeking to vacate his conviction and obtain a new trial, raising
three grounds for relief. In Ground One, Gilmore claims his attorney was ineffective
for failing to properly cross examine witnesses with impeachment and rebuttal
evidence, failing to investigate and prepare a defense with exculpatory evidence, and
instructing him to commit perjury and fraud on the court. ECF No. 441 at 4. In
Ground Two, Gilmore claims the district court erred by not ordering a new trial based
on Gilmore’s complaint that his attorney advised him to commit perjury. Id. at 5. In
Ground Three, Gilmore claims robbery is not a crime of violence and therefore he is
actually innocent of brandishing a firearm in furtherance of a crime of violence. Id.
at 7.
II. DISCUSSION
A. Ground One: Ineffective Assistance of Counsel
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,” (the performance prong) and (2) a reasonable probability exists
that, but for counsel’s unprofessional conduct, the result of the proceeding would
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have been different (the prejudice prong). Strickland v. Washington, 466 U.S. 668,
687 (1984).
In determining whether a defendant can prevail on the prejudice prong, “a
verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id. at 696.
There was overwhelming record support for Gilmore’s guilt in this case.
1. Summary of the Evidence
The evidence at trial showed that Gilmore (also referred to as “Bernard” in
the testimony), his brother Michael Bernard Gilmore (“Michael”), Lewis Jones III
(“Lew”), and Abigail Kemp (“Kemp”) conspired together to commit six jewelry
store robberies in 2015 and 2016. At the time, Bernard, Michael, and Lew owned
Buckhead Window Tinting, a window tinting shop in Atlanta, Georgia. ECF No. 205
at 12. The three men were regulars at a restaurant where Kemp was a waitress in the
summer of 2012. Id. at 9, 12. Kemp and Lew became romantically involved in 2013
and she would frequently hang out at Buckhead Window Tinting. Id. at 10. The
events in this case happened after Bernard, Michael, and Lew asked Kemp if she
wanted to make some extra money by helping with a robbery. Id. at 18.
The first robbery was at Jared Vault in Woodstock, Georgia on April 28, 2015.
Id. at 18. Bernard and Michael acted as lookouts. Id. at 20. Kemp entered the store
first to pretend she was shopping and to talk to the employees to make them feel
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comfortable. Id. at 21-22. Lew came in later and pretended to shop. Id. at 22. Lew
eventually pulled out a gun, told Kemp to get on the ground (as if she too was a
victim of the robbery), and led the employees to the back of the store. Id. at 22-23.
Lew took the employees’ case keys, had them lie face down on the floor, and zip-
tied their hands. ECF No. 203 at 150, 152-153. Kemp saw Lew collect jewelry from
the cases while talking with Bernard on a phone. ECF No. 205 at 25. Jones then told
Kemp to leave the store and followed her out a short while later. Id. at 26. Kemp and
Lew got into their car and met Bernard and Michael down the street. Id. Lew handed
the jewelry to Michael and Bernard. Id. Bernard knew someone in Miami who could
purchase some of the jewelry. Id. at 91.
Two to three weeks later, Kemp met with Lew, Michael, and Bernard at a
restaurant. Id. at 31. Bernard paid her $2,000 or $3,000 cash. Id. at 32. Bernard
explained that the money was a little short because some of the jewelry sold for less
because it was fake or marked. Id. 32-33.
For the second robbery, the plan was for Kemp to go into the store alone and
commit the robbery. Id. at 35. To prepare for the robbery, Bernard, Michael, and Lew
helped Kemp with a disguise and showed her how to hold the gun and how to zip tie
employees’ hands. Id. at 35-36. Lew’s role during the robbery was to keep a close
lookout and talk with Kemp through an earpiece. Id. at 41. Bernard and Michael
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would be on the lookout for police while driving around the area. Id. The next five
robberies (and one attempt) followed this general plan.
The second robbery was at the Zales Outlet in Dawsonville, Georgia on
August 5, 2015. Id. at 42, ECF No. 203 at 219. Kemp walked into the store and
pretended she was shopping. ECF No. 205 at 43. She was talking on the phone with
Lew through an earpiece. ECF No. 203 at 220; ECF No. 205 at 44. She pulled out a
gun, led the employees to the back of the store and zip tied them. ECF No. 205 at
42. She used their keys to open the jewelry drawers and collect items. Id. at 43-44.
Kemp met with Lew outside the store, and they met up with Bernard and Michael
down the road to give them the jewelry. Id.
The third robbery was at the Reeds jewelry store in Panama City on August
11, 2015. Id. at 48; ECF No. 203 at 37. Kemp and Lew drove to Panama City in her
car. ECF No. 205 at 48. Michael and Bernard drove separately in a rented car. Id.
They stayed at Ocean Breeze Hotel, paid for by Michael. Id. at 53. The next morning,
Kemp robbed the store. Id. at 59. As before, Kemp wore an earpiece so she could
talk with Lew. Id. at 63. She met with Lew afterward, then drove to meet with
Bernard and Michael down the street. Id. at 64. Kemp drove back to Georgia on her
own. Id. Bernard, Michael, and Lew went to Miami to sell the jewelry. Id. Lew later
paid Kemp $10,000. Id. at 65.
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The fourth robbery was at the Jared Vault in Bluffton, South Carolina on
September 2, 2015. Id. at 67; ECF No. 203 at 235. Lew and Kemp drove in a car
rented by Kemp. ECF No. 205 at 67. Bernard and Michael drove in another car
rented by Bernard. Id. at 67, 69-70. Kemp robbed the store. Id. at 71. She was in
contact with Lew during the robbery. Id. at 72. Afterward, she met with Lew, and
they drove together to meet Bernard and Michael. Id. at 73. Lew took the jewelry
and drove away with Bernard and Michael to Miami. Id. at 73, 74. Kemp drove home
alone. Id. at 73. Lew later gave Kemp $8,000. Id. at 74.
Before the fifth robbery took place, Kemp bought a handgun. Id. at 80.
Previously, she had been using Lew’s gun for the robberies, leaving him without one.
Id. By having her own gun, Lew, Bernard, and Michael could all be armed. Id.
The fifth robbery was at the Jared Vault in Sevierville, Tennessee on October
16, 2015. Id. at 81; ECF No. 203 at 254-58. This time because Michael could not
leave until later, Kemp, Lew, and Bernard drove in one rented car. ECF No. 205 at
83. Michael came later that evening in another rented car. Id. Receipts show Bernard,
Michael, and Lew paid for rooms at the EconoLodge. Id. at 84-85. The next morning,
Kemp robbed the store. Lew was nearby in one car, while Bernard and Michael drove
around as lookouts. Id. Upon leaving the store, Kemp got into the car with Lew and
then met up with Bernard and Michael. Id. at 90. Lew went with Bernard and
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Michael to Miami. Id. Kemp drove home alone. Id. Later, Lew gave Kemp $6,000
or $7,000. Id. at 91.
On December 30, 2015, the group made an unsuccessful attempt to rob the
Reeds jewelry store in Macon, Georgia. Id. at 99. Kemp rented a car to drive to
Macon, and Michael and Bernard rented a black van. Id. While Kemp was in the
store, she thought she had been recognized. Id. When a FedEx worker came into the
store, Lew told her to get out. Id.
The sixth robbery was at Jared Vault in Mebane, North Carolina on January
4, 2016. Id. at 104. They used the same cars previously rented for the failed robbery
in Macon on December 30, 2015. Id. at 99-100, 105. For a disguise, Bernard bought
Kemp a headband to wear, which can be seen on Walmart’s surveillance video, and
Michael bought an outfit. Id. at 104, 106. Kemp, wearing the headband, robbed the
store and got in the car with Lew. Id. at 109-10. They met up with Bernard and
Michael. Id. Lew left with Bernard and Michael to go to Miami. Id. Kemp drove
home alone. Id.
On January 8, 2016, Lew drove to Kemp’s apartment in the black van that was
rented before the Macon attempted robbery. Id. at 120-21. Kemp and Lew were
arrested at Kemp’s apartment. Id. at 119-21. Kemp later implicated Gilmore and
Michael in the robberies.
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There was extensive evidence aside from Kemp’s testimony tying Gilmore to
the robberies.1 For example, on the day of the first robbery in Woodstock, Georgia
on April 28, 2015, Gilmore’s cell phone (along with Kemp’s and Michael’s)2 was
near the jewelry store when it was robbed. ECF No. 204 at 197. Gilmore’s phone
had four photographs taken on April 28, 2015, of stolen jewelry with price tags. ECF
No. 210 at 67-71. The next day, April 29, 2015, Gilmore had a video on his phone
showing him giving his wife two stolen diamond rings. ECF No. 210 at 74-75.
Location records from Gilmore’s phone (and Michael’s phone) show they arrived in
Miami on May 1, 2015. Id. at 77. Hotel records show Gilmore rented a room at the
Catalina Hotel in Miami from May 3-7, 2015. Id. at 78. Gilmore’s phone had
multiple texts sent to an individual named “Spanish” on May 2, 2015, discussing
jewelry and that sometimes fake jewelry is put in display cases. Id. at 79-81. Photos
from Gilmore’s phone on May 6, 2015, show Gilmore, Michael, and Lew toasting
drinks, Michael smoking a cigar, Gilmore at a club in Miami with money in his
hands, and Lew with money in his hands. Id. at 89-90.
1 Additional evidence tied Lew and Michael (and by implication Gilmore) to the robberies.
Mostly just Gilmore’s ties are noted here to show the evidence specifically against Gilmore and to
keep this section shorter.
2 The phone number associated with Lew is (305) 492-3547. ECF Nos. 204 at 123; 205 at 29.
Testimony and subscriber records presented at trial show that Lew’s phone was not activated until
May 5, 2015. ECF No. 204 at 178-79, 194-95; ECF No. 210 at 77.
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Financial records show Gilmore’s wife made cash deposits of $1,000 on May
6, 2015, $1,000 on May 21, 2015, $550 on June 2, 2015, $400 on June 22, 2015,
$400 on July 2, 2015, $400 on July 7, 2015, and $216 on July 14, 2015. Id. at 83-84.
On July 6, 2015 (which is after the first robbery but before the second),
Gilmore’s phone shows messages to an individual named “Candy Paint” with two
photos of a diamond ring with “sticker price 7,000” on one of them, then negotiating
a price of “$400.” Id. at 84-86. Gilmore exchanged additional messages to “Candy
Paint” on July 7, 2015, to sell a diamond ring priced at $10,000 for $600. Id. at 87.
When “Candy Paint” asked about the weight of the stones, Gilmore responded, “I
don’t know, sir. LOL. The tags are gone for good reason, LOL, but I promise, if he’s
looking, he won’t come close to getting that ring for that price.” Id. at 87-88.
Cell phone records on the date of the second robbery in Dawsonville, Georgia
on August 5, 2015, show Gilmore’s cell phone (and the co-defendants’ cell phones)
traveling from Atlanta to Dawsonville and back. Id. at 92. The records also show
their phones near the Zales store during the robbery. ECF No. 204 at 198-200.
Cell phone records on August 10, 2015 (the day before the Panama City
robbery) show Gilmore’s phone (and the co-defendants’ phones) traveling from
Atlanta to Panama City Beach. ECF No. 210 at 92-93. Photographs show Kemp,
Bernard, Michael, and Lew together on the beach on August 10, 2015. ECF No. 205
at 54-57. On the day of the robbery, August 11, 2015, records show all their phones
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near the Reeds store at the time of the robbery, ECF No. 204 at 201, and then Kemp
traveling back to Atlanta, and Gilmore, Michael, and Lew traveling to Miami. ECF
No. 210 at 93-94. Hotel records show Gilmore rented two rooms on August 11, 2015,
at the Catalina Hotel in Miami. Id. at 94-95. Gilmore’s wife made cash deposits of
$500, $800, and $1200 after the Dawsonville and Panama City robberies. Id. at 95-
96.
Cell phone records on the date of fourth robbery in Bluffton, South Carolina
on September 2, 2015, show Gilmore (and the co-defendants) traveling from Atlanta
to Bluffton. Id. at 97. The records show all four cell phones around the Jared Vault
store at the time of the robbery. ECF No. 204 at 202. The records also show Kemp
traveling from Bluffton back to Atlanta, and Gilmore, Michael, and Lew traveling
from Bluffton to Miami. ECF No. 210 at 98. Hotel records show Gilmore rented a
room at the Catalina Hotel in Miami. Id.
Cell phone records on October 15, 2015 (which is the day before the fifth
robbery in Sevierville, Tennessee) show Gilmore, Michael, and Lew traveling from
Atlanta to Knoxville, Tennessee. Id. at 99. Hotel records show Gilmore rented a
room at the EconoLodge on October 15, 2015. After the robbery, cell phone records
show Kemp traveling from Knoxville-Sevierville back to Atlanta. Id. at 100-01. The
records show Gilmore, Michael, and Lew traveling from Knoxville-Sevierville to
Miami. Id. at 101. Hotel records show Gilmore rented a room at the Catalina Hotel
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in Miami from October 16-17, 2015. Id. After the Sevierville robbery, Gilmore’s
wife made cash deposits in the amount of $500, $519, $185, $400, $2,000, $700,
$700, $600, and $380. Id. at 102-03.
Cell phone records on the date of the sixth robbery in Mebane, North Carolina
on January 4, 2016, show Gilmore (and the co-defendants) traveling from Atlanta to
Mebane, North Carolina. Id. at 106. All four phones were in the area at the time of
the robbery. ECF No. 204 at 203. After the robbery, Kemp traveled from Mebane to
Atlanta. ECF No. 210 at 106. Gilmore, Michael, and Lew traveled from Mebane to
Miami. Id. at 107. A photograph taken late at night on January 4, 2016, shows
Gilmore, Michael, and Lew in front of a jewelry store in Miami Beach. Id. at 107.
Gilmore is wearing the same clothing shown in the Walmart surveillance video in
Mebane when he bought the headband for Kemp. Id.
The receipt for the headband was found in the rented black van, which Lew
drove to Kemp’s house the day they were arrested on January 8, 2016. ECF No. 204
at 172-73. Also in the van were white flip flops and a skull cap matching what
Gilmore wore in the Walmart surveillance video when he purchased the headband
Kemp used in the robbery. ECF No. 205 at 216-218.
When Gilmore was arrested on February 12, 2016, a search of his house
showed he had three gold rings and two business cards for jewelry stores in Miami.
Id. at 202-05. Prior to his arrest, but after Kemp and Lew were arrested, Gilmore and
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Michael exchanged texts about Lew’s arrest and seizure of the van, and Gilmore
advised Michael that “Lawyer says no cell talk.” ECF No. 210 at 110.
2. Gilmore’s claims
In his memorandum, Gilmore organizes his claims into three categories. He
claims his trial lawyer was ineffective for: (1) “fail[ing] to obtain readily available
evidence that Kemp was an individual experienced at committing robberies,” (2)
“failing to produce exculpatory phone records,” and (3) “condoning perjury and
committing fraud on the court.” ECF No. 443 at 10-13. He also makes claims outside
these categories that “[t]he government discredited the Defendant’s lawful business
as a sham, but yet a line of people stood ready to contradict such an unfounded claim,
but were never called to testify,” and that counsel failed to include relevant facts in
a motion to reopen his bond hearing. Id. at 7-8. These claims will be addressed in
turn.
a. Kemp’s experience in committing robberies
Gilmore claims that his trial attorney should have impeached Kemp with
evidence that Kemp committed a grocery store robbery before the jewelry store
robberies. Id. at 10-11. Because Gilmore cannot show a reasonable probability exists
that the outcome of the trial would have been different had the evidence been
presented, he cannot show prejudice required for an ineffective assistance of counsel
claim. See Strickland, 466 U.S. at 687.
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The probable effect of Kemp’s prior grocery store robbery to the outcome of
the trial was addressed in the district court’s order denying the defendants’ motions
for new trial and in the Eleventh Circuit’s ruling. See ECF No. 330; Gilmore, 833 F.
App’x at 797. In the order denying the motions for new trial, the court explained that
a new trial using the evidence would probably not produce a different result because
the evidence of guilt against Gilmore and his co-defendants was overwhelming. ECF
No. 330 at 4. The evidence of Kemp’s grocery store robbery would not detract from
the phone records, photos, and receipts showing that Gilmore, Lew, and Michael
traveled together to each of the burglary locations in Georgia, Florida, South
Carolina, Tennessee, and North Carolina, as well as to Miami to sell stolen jewelry.
Id. at 5. The evidence also would have been prejudicial to the defendants because
Lew was implicated in the grocery store robbery, and Lew was a business partner
and close friend of Gilmore and Michael. Id. at 3. As the Eleventh Circuit ruled, even
if Kemp’s lie about the grocery store robbery had been exposed at trial, “exposure
of the lie would not have so undermined her independently-corroborated testimony
about the jewelry store robberies that it probably would have led to an acquittal.”
Gilmore, 833 F. App’x at 797 (italics added). Accordingly, Gilmore has not shown
he was prejudiced by the alleged ineffectiveness.
b. Phone records
Gilmore argues that his counsel was ineffective in failing to discredit the
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Government’s phone records (which show that Gilmore was in the area of each
robbery, including the first robbery in Woodstock, Georgia, on April 28, 2015), with
evidence that his phone was purchased after the first robbery. ECF No. 443 at 11;
ECF No. 451 at 5. Gilmore’s claim is without merit because he does not show any
such records, and the records available show it was Lew’s phone, not Gilmore’s, that
was activated after the first robbery.
Gilmore contends “a simple investigation would have revealed that [he]
owned a particular phone, but it was purchased after the date of the robbery.” ECF
No. 451 at 5. He made the same claim at a pretrial hearing and a posttrial hearing,
contending he purchased his phone on May 5, 2015. ECF No. 153 at 7; ECF No. 227
at 5. Gilmore explained “it’s impossible for them to have me pinging in these
locations.” ECF No. 153 at 26. A receipt attached to the third amended motion to
reopen detention hearing shows a Sprint transaction summary dated May 5, 2015,
for a new line purchased by Michael for a new device with the number (305) 492-
3547. ECF No. 67 at 8-9.
The Government’s phone records showed that Michael subscribed to the
Sprint plans for the phones associated with Gilmore, Michael, and Lew. ECF No.
204 at 178. Kemp testified at trial that the (305) 492-3547 phone number was used
by Lew, and that Gilmore’s number was (770) 572-1752. ECF No. 205 at 29. Lew’s
number was the only number with a 305-area code. Id. These numbers correspond
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with the contacts on Kemp’s phone. ECF No. 204 at 168. Phone records show Lew’s
phone was not activated until May 5, 2015. Id. at 179-80, 194-95; ECF No. 210 at
77. Evidence at trial showed that cell tower records did not show Lew’s phone in the
area of the first robbery in Woodstock, Georgia, because that particular phone had
not yet been activated. ECF No. 204 at 194-95. Gilmore’s phone was a different
matter. Records showed Gilmore’s phone (and Michael’s phone) pinging off towers
near Jared’s Vault in Woodstock, Georgia, on April 28, 2015. Id. at 196-97.
Gilmore has not presented any phone records to support his claim of
ineffective assistance of counsel. And the phone records presented at trial refute his
claim. Accordingly, relief as to this claim should be denied.
c. Condoning perjury and committing fraud on the court
Gilmore claims his trial attorney was ineffective for “promoting, condoning
and ultimately defrauding the court with known fabricated evidence.” ECF No. 443
at 12. Gilmore explains that his attorney attempted to make him and his wife, Bisa
Gilmore, fabricate an alibi defense and “went so far as to file a notice of an alibi
defense with the Court.” Id. at 8. Gilmore avers that his attorney filed the alibi notice
against his “express instructions” and that this conflict destroyed their attorney-client
relationship. ECF No. 442 at 2; ECF No. 452 at 3.
On May 6, 2016, trial counsel filed a notice of alibi as to the Woodstock,
Georgia, robbery on April 28, 2014, and the Dawsonville, Georgia, robbery on
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August 4, 2015, disclosing that Gilmore was either at home with his wife or at his
shop with his brother. ECF No. 66. The filing of the notice is not surprising since
Gilmore took the position that he “was not there on the 28th” and “from day one,
even in Atlanta, I told my attorney, Mr. Marshall, that it’s impossible for them to
have me pinging in these locations.” ECF No. 227 at 5, 26.
The notice, moreover, simply preserved Gilmore’s opportunity to present an
alibi defense because if notice is not given, “testimony of any undisclosed witness
regarding the defendant’s alibi” may be excluded. Fed. R. Crim. P. 12.1(e). The
filing of the notice could not prejudice Gilmore because “[e]vidence of an intention
to rely on an alibi defense, later withdrawn, or of a statement made in connection
with that intention, is not, in any civil or criminal proceeding, admissible against the
person who gave notice of the intention.” Id. at (f). In this case, no alibi witnesses
were presented at trial.
The mere filing of the notice of alibi was in no way a fraud upon the court as
Gilmore characterizes it. Gilmore has not shown that no reasonable lawyer would
have filed the notice, and Gilmore cannot show any prejudice from the mere filing
of the notice.
As for Gilmore’s allegation that his attorney tried to fabricate an alibi defense,
Gilmore provides almost no supporting facts. Although Gilmore alleges his lawyer
“attempted to get [his] wife, Bisa Gilmore, to lie” (ECF No. 443 at 8) and “contacted
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[his] wife and encouraged her to lie for [him] and provide an alibi” (ECF No. 452 at
2), Gilmore provides no affidavit from his wife. Gilmore contended at a September
26, 2016, hearing that he could get a sworn statement from his wife “within 24
hours.” ECF No. 227 at 13. But there is no affidavit.
Furthermore, Gilmore’s claim that his attorney told him to fabricate an alibi
defense is contradicted by the record. At a hearing on June 24, 2016, Gilmore made
no complaint about his attorney filing a notice of alibi or trying to fabricate an alibi
defense. ECF No. 153. The notice of alibi was filed on May 6, 2016, which is the
same day another motion Gilmore complained about (third motion to reopen
detention hearing) was filed. See ECF Nos. 66, 67, 153 at 10.
Finally, instructing Gilmore to fabricate an alibi makes no sense. Gilmore’s
attorney, Johnathan W. Dingus, was3 a well-respected attorney who was on the
federal criminal panel for approximately 20 years. ECF No. 153 at 18-20, 35. An
instruction to Gilmore to fabricate an alibi would be contrary to Mr. Dingus’s
demonstrated skill and character as a lawyer. It would also be a nonsensical thing to
do given the overwhelming evidence tying Gilmore to the location of each of the
robberies and the sale of the stolen jewelry. Gilmore provides no details about Mr.
Dingus’s instructions to make his allegation plausible.
3 Mr. Dingus died on October 19, 2024. See https://www.floridabar.org/the-florida-bar-
news/december-1-2024-in-memoriam/
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Because Gilmore’s claim is based on unsupported generalizations and
contradicted by the record, relief as to this claim should be denied. A hearing is not
required on frivolous claims, conclusory allegations unsupported by specifics, or
contentions that are wholly unsupported by the record. See Winthrop-Redin v. United
States, 767 F.3d 1210, 1216 (11th Cir. 2014); Lynn v. United States, 365 F.3d 1225,
1238-39 (11th Cir. 2004).
d. Additional claims
For the sake of completeness, the Court will address Gilmore’s claim that his
attorney was ineffective for failing to rebut the Government’s evidence that his
business was a sham and failing to include relevant facts in the third motion to reopen
the bond hearing. ECF No. 443 at 7-8. Neither of these claims warrant relief because
Gilmore does not provide specific allegations and the issues involved would not have
affected the outcome of the trial.
For example, Gilmore has not explained what his attorney should have done
differently regarding the third motion to reopen the bond hearing. Nor can he show
any prejudice because bond matters are separate from trial. As for the business,
Gilmore does not provide any names of witnesses who would have testified about
his business. Moreover, even if such witnesses were available, the testimony would
have been cumulative because Ms. Kemp acknowledged on cross examination that
the business was “pretty good” and had customers. ECF No. 160 at 294. Given the
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overwhelming evidence against Gilmore, additional evidence on this issue would
not have made a difference to the outcome of the trial. Accordingly, relief on these
claims should be denied.
B. Ground Two: New Trial
In Ground Two, Gilmore claims the district court should have granted him a
new trial on the court’s own motion after being informed about Mr. Dingus’s fraud
regarding the notice of alibi. ECF No. 441 at 5. Gilmore also claims that his
replacement counsel, Jean Downing, was ineffective for not moving for a new trial.
ECF No. 443 at 14.
First, to the extent Gilmore raises a claim of trial court error, this issue could
have been, but was not, raised on appeal. As such his claim is procedurally defaulted.
Seabrooks v. United States, 32 F. 4th 1375, 1384 (11th Cir. 2022). Furthermore, the
court had no authority to grant a new trial on its own motion. See Carlisle v. United
States, 517 U.S. 416, 431 (1996) (citing Advisory Committee’s Notes on 1966
Amendment of Fed. Rule Crim. Proc. 33, 18 U.S.C. App., p. 801 (“The amendments
to the first two sentences make it clear that a judge has no power to order a new trial
on his own motion, that he can act only in response to a motion timely made by a
defendant. Problems of double jeopardy arise when the court acts on its own
motion”)); United States v. Eaton, 501 F.2d 77, 79 (5th Cir. 1974) (a judge has no
power to order a new trial on his own motion).
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Second, Gilmore has not alleged facts that, if true, would show he was entitled
to a new trial. As noted above, Gilmore has not submitted an affidavit from his wife,
and he misconstrues the notice of alibi as being improper (it was not). Gilmore also
failed to allege anything specific about the alleged instruction to fabricate an alibi
defense. Ms. Downing cannot be deemed ineffective for failing to file a motion for
new trial given the paucity of support provided by Gilmore.
Gilmore is not entitled to relief under any of the legal theories he puts forth
on this ground.
C. Ground Three: Actual Innocence of § 924(c) Offense
In Ground Three, Gilmore contends a Hobbs Act Robbery is not a crime of
violence under the elements clause of § 924(c)(3) and therefore he is actually
innocent of the § 924(c) violation charged in Count 4. ECF No. 443 at 15. Gilmore’s
argument is foreclosed by Eleventh Circuit precedent reiterating that completed
Hobbs Act robbery and aiding and abetting a completed Hobbs Act robbery both
qualify as crimes of violence. United States v. Wiley, 78 F. 4th 1355, 1365 (11th Cir.
2023), (distinguishing United States v. Taylor, 596 U.S. 845, 851 (“Whatever one
might say about completed Hobbs Act robbery, attempted Hobbs Act robbery does
not satisfy the elements clause.” (emphasis in original)). He is not entitled to relief.
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III. CONCLUSION
An evidentiary hearing is not necessary to resolve Gilmore’s claims because
“the motion and files and records conclusively show that the prisoner is entitled to
no relief.” See 28 U.S.C. ' 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th
Cir. 2015). His motion to vacate, set aside, or correct sentence should be denied.
IV. 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
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bring this argument to the attention of the district judge in the objections permitted
to this report and recommendation.
Based on the foregoing, it is respectfully RECOMMENDED:
1. The motion to vacate, set aside, or correct sentence, ECF No. 441, be
DENIED.
2. A certificate of appealability be DENIED.
DONE on March 23, 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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