Starks v. United States of America

Filing 31

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/8/17. (SAC )

FILED
2017 Mar-08 AM 11:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ERNEST LASHAWN STARKS
Petitioner,
v.

UNITED STATES OF AMERICA
Respondent.

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Case No. 5:14-cv-08011-KOB
5:11-cr-404-KOB-PWG

MEMORANDUM OPINION
On January 20, 2012, a jury convicted Ernest Lashawn Starks of carjacking in violation
of 18 U.S.C. § 2219 and brandishing a firearm in violation of 18 U.S.C. § 924(c). The court
sentenced Mr. Starks to 180 months in custody. Before the court is Mr. Starks’s pro se motion to
vacate, set aside or correct his sentence under § 2255. (Civ. Docs. 1, 6, and 26). 1 A prisoner
“claiming the right to be released upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States . . . may move the court . . . to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255.
Mr. Starks asserts nine grounds why this court should overturn his conviction: (1)
ineffective assistance of counsel; (2) violation of Due Process; (3) violation of Equal Protection;
(4) inconsistent perjured testimony; (5) prosecutorial misconduct; (6) lack of notice of pending
charges; (7) the Supreme Court's decision in Johnson; (8) admission at trial of evidence obtained
without a warrant; and (9) denial of his motion for a new trial based on newly discovered
evidence. See (Civ. Docs. 1, 6, and 26).

1

Documents from Mr. Starks’s criminal trial, case number 5:11-cr-404, are designated “Cr. Doc. __.”

1

The court has interpreted Mr. Starks’s claims liberally because he is not represented by
counsel for this petition. See Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000)
(“Pro se filings . . . are entitled to liberal construction.”). Therefore, the court GRANTS Mr.
Starks’s second motion to amend his petition. (Docs. 26, 27). The court will consider every
argument advanced in both Mr. Starks's original motion and his two amendments. See (Civ.
Docs. 1, 6, and 26). After reviewing Mr. Starks’s filings, for the reasons explained below, the
court finds that his arguments lack merit. Therefore, the court DENIES Mr. Starks’s motion to
vacate, set aside, or correct his sentence.
I.

BACKGROUND
On May 11, 2011, a carjacking occurred at a liquor store in Huntsville, Alabama. Shortly

after, a nearby convenience store was robbed.
Kevin Holmes and Thomas Omar Flowers, Mr. Starks’ cousin, were arrested on
suspicion they were involved in the carjacking. Mr. Holmes, Mr. Flowers, and Cameron Byrd
were all students at Alabama A&M in the spring of 2011. A grand jury indicted Mr. Starks for
aiding and abetting carjacking and brandishing a firearm during a crime of violence. At trial, Mr.
Holmes and Mr. Flowers accepted a plea agreement and testified against Mr. Starks as follows.
While Mr. Byrd, Mr. Flowers, and Mr. Holmes were out buying cigarettes, Mr. Starks
invited Mr. Byrd to come over to his house. When they arrived, Mr. Starks suggested they go
buy cigars. The crew left Mr. Starks’s residence driving Mr. Flower’s mother’s vehicle. (Cr. Doc
83 at 220–24, 350–54).
During the drive, Mr. Starks and Mr. Byrd discussed committing a robbery. Mr. Starks,
who was driving, parked in front of a liquor store to steal a car to use in the heist. Mr. Flowers

Documents from Mr. Starks’s § 2255 action, case number 5:14-cv-08011-KOB, are designated “Cv. Doc. __.”

2

did not want his mother’s vehicle involved in the robbery. (Cr. Doc 83 at 225–32, 356–68).
When a car pulled into the lot, Mr. Starks asked which of the men would take the man
hostage. Mr. Byrd volunteered and got in the back of the man's car while he was in the store.
When the man returned to his vehicle, Mr. Byrd held a gun to his head and told him to drive.
After a short distance, Mr. Byrd told the man to get out of the car and lie on the ground. Mr.
Holmes testified that Mr. Starks got out of Mr. Flowers’ mothers’ car brandishing a pistol and
told the man not to get up. (Cr. Doc 83 at 232–35, 365–66).
Mr. Byrd and Mr. Flowers hoped in the carjacked vehicle, but it quickly broke down. Mr.
Starks picked up Mr. Flowers and Mr. Byrd. Mr. Starks stated that he still intended to commit
the robbery, despite having to now resort to using Mr. Flowers’ mother’s vehicle in the crime.
Passing a convenience store and seeing the clerk out from behind the counter cleaning the store,
Mr. Starks identified the business as the group's target. Mr. Byrd exited the vehicle armed with a
pistol. When Mr. Flowers refused to get out, Mr. Starks pointed a gun at him and told him to go
into the store. Mr. Flowers and Mr. Byrd robbed the store, return to the vehicle, and Mr. Starks
drove off. (Cr. Doc 83 at 242–48, 368–73).
Attorney Charles Pullen represented Mr. Starks during the preliminary hearing,
arraignment, trial, and sentencing, but not during his appeal. (Cv. Doc. 1 at 10–11). Mr. Starks’s
counsel made several motions before and at trial. Before trial, Mr. Starks’s counsel moved to
sever his trial from Mr. Byrd's. (Cr. Doc. 28). The court denied the motion. At the conclusion of
the government’s case, Mr. Starks’s counsel moved for a judgment of acquittal. (Cr. Doc. 83 at
286). The court denied that motion as well. (Cr. Doc. 83 at 288). Mr. Pullen did not renew the
motion after presenting Mr. Starks’s case.
A jury convicted Mr. Starks of carjacking in violation of 18 U.S.C. § 2219 and

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brandishing a firearm in violation of 18 U.S.C. § 924(c). (Cr. Doc. 48; Cr. Doc. 85 at 3). The
court sentenced Mr. Starks to 180 months in custody: 96 months on count one, plus 84 months
on count two, to be served consecutively. The court sentenced Mr. Byrd to 399 months in
custody (Cr. Doc. 68).
Mr. Starks appealed to the Eleventh Circuit Court of Appeals, and the Court affirmed his
conviction and sentence. See United States v. Starks, 536 Fed. App’x 843 (11th Cir. 2013). 2 On
appeal, Mr. Starks argued insufficient evidence existed to convict him of either crime; he and
Mr. Byrd should not have been tried together; and his sentence was substantively unreasonable
because of the disparity of sentences he and Mr. Byrd received for their carjacking convictions.
Because Mr. Starks’s counsel did not renew his motion for a judgment of acquittal, the Eleventh
Circuit reviewed his sufficiency of the evidence arguments under a miscarriage of justice
standard and affirmed the convictions based on the sufficiency of the evidence. The Court also
held that the district court did not err in trying Mr. Starks and Mr. Byrd together; and that the
court did not abuse its discretion when it sentenced Mr. Starks to 180 months imprisonment.
On March 21, 2014, Mr. Starks sued to vacate, set aside, or correct his sentence under §
2255. (Cv. Doc. 1). Mr. Starks then filed an amended motion on May 19, 2014. (Cv. Doc. 6).
After a preliminary review of Mr. Starks’s motions, the court ordered the government to show
cause why the court should not grant Mr. Starks’s motion. (Cv. Docs. 3 and 7). The government
responded on July 30, 2014. (Cv. Doc. 10). On August 5, 2014, the court found the case ready
for summary disposition and ordered Mr. Starks to submit any additional evidence within 21
days. (Cv. Doc. 11). Mr. Starks filed a reply to the government’s response on August 22, 2014.

2

Mr. Starks was represented in his appeal by Marcus John Edward Helstowski, James Tobia Gibson,
Kevin L. Butler, and Allison Case. Mr. Starks does not make any argument their performance was deficient.

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(Cv. Doc. 12). The court deemed the case under submission for summary disposition on
September 2, 2014. (Cv. Doc. 13).
Mr. Starks then moved to expand the record on September 8, 2014. (Cv. Doc. 14). The
court granted Mr. Starks’s motion to expand the record and accepted the affidavits attached to his
motion as part of his reply to the government’s response. (Cv. Doc. 15). Again, the court found
that a hearing on Mr. Starks’s motion was not warranted and deemed the case under submission
for summary disposition. (Cv. Doc. 15).
On May 12, 2016, Mr. Starks moved to amend his petition. (Cv. Doc. 26). As noted
above, the court has now granted the motion to amend and is considering the additional grounds
asserted in that amendment in this opinion. This matter is ripe for resolution.
II.

DISCUSSION
Mr. Starks asserts nine grounds to support his petition challenging his sentence. As

discussed below, none of these grounds have merit.
A.

Ineffective Assistance of Counsel

First, Mr. Starks argues that his trial counsel’s performance was so deficient it amounted
to a violation of his constitutional rights.
The Sixth Amendment gives criminal defendants the right to effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984). To prevail on a claim of
ineffective assistance of counsel, Mr. Starks must demonstrate that (1) his counsel's performance
fell below an objective standard of reasonableness; and (2) he suffered prejudice because of that
deficient performance. See id. at 684–91.
Deficient performance exists when counsel acts “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. The test is not what the best—or even a

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good—lawyer would have done, but “whether some reasonable lawyer at the trial could have
acted, in the circumstances, as defense counsel acted at trial.” Waters v. Thomas, 46 F.3d 1506,
1512 (11th Cir. 1995) (en banc) (emphasis added).
A petitioner’s counsel is presumed to have acted reasonably. Strickland, 466 U.S. at 690;
Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999) (“[W]here the record is incomplete or
unclear about [counsel]'s actions, we will presume that he did what he should have done, and that
he exercised reasonable professional judgment.”). To overcome that presumption, a petitioner
“must identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.” Strickland, 466 U.S. at 690. Conclusory or unsupported
allegations cannot support an ineffective assistance of counsel claim. See Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (finding “unsupported allegations, conclusory in nature and
lacking factual substantiation” to be an insufficient basis for relief); see also Chandler v. United
States, 218 F.3d 1305, 1314 n.15 (“An ambiguous or silent record is not sufficient to disprove
the strong and continuing [Strickland] presumption.”).
Prejudice exists if “a reasonable probability [exists] that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S at 694.
Merely showing that counsel’s error had “some conceivable effect on the outcome of the
proceeding” cannot establish prejudice. Id. at 693.
Attorney Charles Pullen performed effectively by meeting the minimum standard of
reasonableness. However, regardless of Mr. Pullen’s performance, Mr. Starks failed to show that
any of Mr. Pullen’s alleged errors prejudiced him.
1.

Ineffective Protection of Rights

Mr. Starks argues that his counsel “ineffectively protected his rights throughout the entire

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process.”(Cv. Doc. 1 at 4). However, Mr. Starks does not identify specific acts or omissions of
counsel that show how counsel ineffectively protected his rights; nor does Mr. Starks show how
he suffered prejudice because of his counsel’s alleged “ineffective performance.” If Mr. Starks
intends this contention to be a standalone claim of ineffective assistance of counsel, rather than a
mere introductory statement, the court finds the claim without merit.
2.

Preservation of Rights and Error

Next Mr. Starks argues that his counsel “failed to properly preserve right[s] and error”
(Cv. Doc. 1 at 4), and “failed to renew [his] judgment of acquittal under Federal Rule of
Criminal Procedures [sic] 29.” (Cv. Doc. 6 at 2). Mr. Starks’s general contention that his counsel
failed to preserve his rights and errors, like his contention that counsel ineffectively protected his
rights, is merely an unsupported conclusory statement and is not grounds for relief. See Tejada,
941 F.2d at 1559.
Further, Mr. Starks fails to establish that his counsel’s failure to renew his judgment of
acquittal was either unreasonable or prejudicial. At the close of the government’s case, Mr.
Starks’s counsel moved for a judgment of acquittal on the charge of brandishing a firearm, and
the court denied the motion because sufficient evidence indicated that Mr. Starks brandished a
firearm either at the carjacking victim and/or at Mr. Flowers during the robbery based on the
testimony of Mr. Holmes and Mr. Flowers. (Cr. Doc. 83 at 286–88). Mr. Starks does not show
how counsel’s failure to renew the motion was unreasonable or prejudicial when the court had
already denied Mr. Starks’s first motion.
Nothing suggests that the court would have granted the motion the second time it was
offered as the evidence presented by the defense did not challenge the evidence cited by the court
in ruling on the original motion. Mr. Starks presented three witnesses during his case. First, Mr.

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Starks called Officer Larry Davenport, a police officer with Alabama A&M University. Officer
Davenport testified that he had stopped a car on May 11, 2011 that contained Mr. Byrd, Mr.
Holmes, and Mr. Flowers, as it exited the university around 6:00 p.m.. Officer Davenport
testified the men were all dressed in black and he thought that was unusual. Officer Davenport
also testified he never saw Mr. Starks that night.
Second, Mr. Starks called Frank Williams, his roommate. Frank Williams testified Mr.
Starks remained at home on May 11, 2011. Finally, Mr. Starks called David Williams, a
Huntsville Police Department officer. Officer Williams testified that he filed a supplemental
report related to the case. None of this testimony would alter the court’s judgment that sufficient
evidence existed that Mr. Starks brandished a firearm if the jury believed the testimony of Mr.
Flowers and Mr. Holmes.
Mr. Starks also fails to establish that his counsel’s failure to renew the motion prejudiced
him in his appeal. Not renewing the motion for a judgment of acquittal led the Eleventh Circuit
to review his sufficiency of the evidence argument under a miscarriage of justice standard rather
than de novo standard. Mr. Starks makes no argument—and the court sees no reason—that the
result of the proceeding would have been different had the appellate court applied the less
deferential standard of review. The Eleventh Circuit noted that conflicting versions of events had
been offered at trial but found the inconsistencies to be “classic jury arguments.” Starks, 536
Fed. Appx. at. 848 (quoting United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir.)).
Given that an appellate court is prohibited from “revisit[ing] the credibility
determinations of the jury,” the court sees no reason that the Eleventh Circuit would have
reached a different conclusion if it had applied a de novo standard to Mr. Stark’s sufficiency of
the evidence challenge. See United States v. Thompson, 422 F.3d 1285, 1291–92 (11th Cir.

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2005). Therefore, Mr. Starks has also failed to establish that his counsel’s failure to renew his
motion of acquittal prejudiced him in his appeal.
3.

Failure to Know the Law and Inform the Court of Differences with Client

Mr. Starks argues his counsel “fail[ed] to know the law fully and to notify the court when
differences [arose] between [Mr. Starks] and counsel.” (Cv. Doc. 1 at 4). Like Mr. Starks’s other
conclusory arguments, he provides no specific instances of his counsel’s failure to fully know the
law. To evaluate alleged failures of counsel, the court must know specifics: what relevant and
material law did counsel not know, and how did such failure affect the presentment of evidence
or the instruction to the jury, or the ultimate verdict? Mr. Starks’s bare assertion that his counsel
failed to know the law cannot support a claim that his counsel’s conduct was deficient. See
Tejada, 941 F.2d at 1559.
The only instance that Mr. Starks identifies regarding counsel’s failure to notify the court
when differences arose between him and counsel is that “[he] was told he was going to testify at
trial by counsel[,] then at last minute counsel told [him] that he was not testifying.” (Cv. Doc. 1
at 4). However, Mr. Starks fails to establish that his counsel’s conduct was objectively
unreasonable or prejudicial. In fact, the court asked Mr. Starks about his decision not to testify,
and he replied that he voluntarily decided, based on his discussion with counsel, that “it is in
[his] best interest not to testify.” (Cr. Doc. 84 at 6–7).
To the extent any “differences arose” regarding Mr. Starks’s decision to testify, his
counsel’s failure to notify the court of the decision did not prejudice him because the record
shows that Mr. Starks told the court that he voluntarily decided not to testify.
4.

Failure to Exercise Professional Judgment

Mr. Starks also alleges that his counsel failed to “exercise professional judgment on

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behalf of [Mr. Starks] and failed to call expert witnesses to examine the video tape of the events
of that night.” (Cv. Doc. 1 at 4). Mr. Starks provides no reason expert analysis of the video was
required or that reasonable counsel would conclude that expert testimony was necessary. Mr.
Starks also fails to show how his counsel’s failure to call an expert witness to examine a video
tape from the convenience store security camera prejudiced him. Mr. Starks provides no reason
expert analysis of the video tape was needed or why it would have affected the outcome.
On this ground, Mr. Starks again fails to meet either prong of the Strickland test.
5.

Failure to Impeach Government’s Witnesses

Next Mr. Starks argues his counsel “failed to impeach the lawless government’s two
cooperating witnesses” and failed “to ask for finger print evidence/DNA on the mask/clothing
that night.” (Cv. Doc. 1 at 4).
Mr. Starks’s contention that his counsel did not impeach Mr. Holmes and Mr. Flowers,
the government’s cooperating witnesses, is not supported by the record. Mr. Starks’s counsel
vigorously cross examined Mr. Holmes about his prior criminal conduct (Cr. Doc. 83 at 72); his
statement to police that he wanted to cooperate with them at the scene of the arrest and that he
would tell police “whatever they needed in their investigation” (Cr. Doc. 83 at 77); his written
statement (Cr. Doc. 83 at 85); the fact he received $40 from Mr. Flowers (Cr. Doc. 83 at 89); his
arrest on an unrelated outstanding warrant on the night of the incident (Cr. Doc. 83 at 91); why
he did not exit the car while it was stopped at the convenience store (Cr. Doc. 83 at 109);
inconsistencies between his testimony regarding the location of the vehicles during the
carjacking (Cr. Doc. 83 at 111); and that his testimony about Mr. Starks’s action differed from
the victim’s testimony. (Cr. Doc. 83 at 117).
Similarly, Mr. Starks’s counsel cross examined Mr. Flowers regarding entering a plea

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agreement that required him to cooperate and testify in Mr. Starks’ trial; (Cr. Doc. 83 at 199);
two phone calls from the jail in which he told his mother and Stephanie McCauley that Mr.
Starks had not been involved in the incident (Cr. Doc. 83 at 208); and how a ski mask was found
in his car when he said that he gave the ski mask to Mr. Starks. (Cr. Doc. 83 at 211). Mr. Starks’s
counsel also cross examined Mr. Flowers about his testimony concerning Mr. Starks’s actions
during the crimes. (Cr. Doc. 83 at 218).
Mr. Starks’s counsel also cross examined Mr. Flowers on the inconsistencies with his
trial testimony and a written statement he made shortly after the incident, and Mr. Flowers
testified that part of his written statement was untrue. (Cr. Doc. 83 at 204–05). Counsel pursued
this line of questioning so thoroughly that the court stated he had “beat this horse enough” and
instructed him to move on. Id. at 205. Such extensive and intensive questioning belies Mr.
Starks's contention that his counsel failed to impeach Mr. Flowers and Mr. Holmes.
Whether counsel “impeached” a witness raises a question of credibility; the jury alone
determines whether efforts to impeach succeed. Here, the jury found testimony of Mr. Flowers
and Mr. Holmes credible despite the valiant efforts of counsel.
Therefore, Mr. Starks has failed to establish that his counsel’s cross examination of the
government’s witnesses was deficient in any way, much less that it fell “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. And further, even if
counsel’s conduct was unreasonable, Mr. Starks has not shown that the lack of any additional
questioning prejudiced him. Accordingly, this ground lacks merit.
6.

Failure to Obtain Evidence

Mr. Starks argues that his counsel was ineffective by not asking for fingerprint and DNA
evidence from the mask and clothing found in the Jeep. Mr. Starks fails to establish why a

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reasonable attorney would have asked for such evidence. No evidence was presented that Mr.
Starks wore any particular item of clothing on that night. The test results would be irrelevant.
Mr. Starks has not shown what favorable evidence would have been obtained had his attorney
procured the tests. Therefore, Mr. Starks has failed to show that his counsel’s conduct was
unreasonable or prejudicial.
Mr. Starks also alleges that his counsel was ineffective because he did not obtain Mr.
Flowers and Mr. Holmes’s statements to police and transcripts of their phone conversations from
the jail. However, the facts that Mr. Starks’s counsel questioned Mr. Flowers and Mr. Holmes
about these documents, as discussed above, indicates that Mr. Starks’s counsel did have these
statements and that he acted reasonably in using them during cross examination. (Cr. Doc. 83 at
204–05, 208).
7.

Counsel’s Suicide

Finally, Mr. Starks observes that his attorney committed suicide after his trial. However,
his counsel’s death is irrelevant to whether he provided effective assistance to him during his
representation. Mr. Starks offers only pure speculation that the case had anything to do with
counsel’s death. Therefore, Mr. Starks’s counsel’s death will not support his claim for relief.
Mr. Starks has failed to meet either prong of the Strickland test. As such, Mr. Starks's
claim to vacate, alter, or amend his sentence because of ineffective assistance of counsel lacks
merit.
B.

Johnson Claim

In Mr. Starks's memorandum supporting his second amendment, he argues that the
Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), holding the
residual clause of the Armed Career Criminal Act unconstitutional for vagueness, should be

12

applied with equal force to the same language found in the “Career Offender” provision
contained in § 4B1.2(a)(2) of the United States Sentencing Guidelines. (Cv. Doc. 27 at 4). Mr.
Starks's argument is unavailing for at least two reasons.
First, Mr. Starks was not sentenced as a career offender under the guidelines. Mr. Starks’s
criminal history score was zero, and nothing in the presentencing report or at sentencing
indicated that the court sentenced Mr. Starks as a career offender. See (Cr. Doc. 66 at 11).
Therefore, even if Johnson suggests that the career offender provisions of the Guidelines are
unconstitutionally vague, it would not affect Mr. Starks's sentence because the court did not
consider that provision when imposing it. Therefore, Mr. Starks's argument that Johnson casts
his sentence into doubt lacks merit.
Second, even had Mr. Starks been sentenced under the career offender provision, the
Eleventh Circuit has clarified that Johnson has not invalidated that Guideline provision because
sentencing guidelines cannot be unconstitutionally vague. See United States v. Matchett, 802
F.3d 1185, 1196 (11th Cir. 2015) (“[W]e reject [the] argument that advisory guidelines can be
unconstitutionally vague.”).
C.

Procedurally Defaulted and Prior Adjudicated Claims

Mr. Starks also asserts the following grounds in his petition: violation of Due Process;
violation of Equal Protection; inconsistent perjured testimony; prosecutorial misconduct; notice
of pending charges; admission of government exhibits that were evidence obtained without a
warrant; and denial of his motion for a new trial based on newly discovered evidence. As noted
below, these grounds for relief are either procedurally defaulted or have already been adjudicated
against him.
1.

Already Adjudicated

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A party may not re-litigate a matter decided against it on direct appeal. United States v.
Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (“Once a matter has been decided adversely to a
defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.”).
In ground two of his first amended petition, Mr. Starks contends that “the Government
did not satisfy the Due Process Clause’s requirement that [his] guilt be determined beyond a
reasonable doubt.” (Doc. 6 at 2). Mr. Starks argues that the evidence presented could not prove
he committed either crime for which he was charged. Mr. Starks contends the victim of the
carjacking never identified him; Mr. Flowers and Mr. Holmes’s testimony conflicts with the
victim’s testimony; Mr. Holmes and Mr. Flowers’s testimony implicating him was inconsistent;
and that portions of Mr. Holmes’s testimony differed from the security camera video.
Mr. Starks also challenged the sufficiency of the evidence to convict him of both charges
on direct appeal, and the Eleventh Circuit affirmed his conviction. United States v. Starks, 536
Fed. App’x 843, 849 (11th Cir. 2013) (“Although the testimony of Holmes and Flowers may be,
as Starks and Byrd contend, suspect, it was not incredible as a matter of law.”). Therefore, Mr.
Starks’s challenge to the sufficiency of the evidence in this petition is barred. See Nyhuis, 211
F.3d at 1343.
Mr. Starks also alleges in his second ground that his due process rights were violated
because the court relied on hearsay and evidence of other crimes not presented to the jury in
sentencing him. However, the Federal Rules of Evidence do not apply at sentencing. See
U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing
determination, the court may consider relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the information has sufficient indicia
of reliability to support its probable accuracy.”); United States v. Cantellano, 430 F.3d 1142,

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1146 (11th Cir. 2005) (“The right to confrontation is not a sentencing right.”). Therefore, Mr.
Starks's second ground also lacks merit.
In Mr. Starks’s third ground, he contends his Fourteenth Amendment rights were violated
and he was denied equal protection of the law. (Doc. 5 at 5). Again, Mr. Starks argues that Mr.
Flowers and Mr. Holmes’s testimony was not credible; the evidence was insufficient to convict
him; and that Mr. Holmes’s testimony contradicted his grand jury testimony. Mr. Starks’s
argument reduces to another attempt to challenge the sufficiency of the evidence. As this issue
has already been resolved on direct appeal against Mr. Starks, the sufficiency of the evidence
cannot be the basis of altering, amending, or vacating his sentence in this collateral action.
In his fourth ground, Mr. Starks argues that Mr. Flowers and Mr. Holmes’s testimony
was inconsistent and counsel should have impeached the witnesses. (Doc. 1 at 8). Again, Mr.
Starks made the same arguments on appeal. In fact, the Eleventh Circuit noted the same
inconsistent or factually inaccurate testimony cited by Mr. Starks when it upheld his conviction,
noting these were questions for the jury. See U.S. v. Starks, 536 Fed. App’x 843, 848–49 (11th
Cir. 2013). Therefore, the witnesses’ inconsistent testimony is not grounds for granting Mr.
Starks’s petition. See Nyhuis, 211 F.3d at 1343.
Mr. Starks's second motion to amend also asserts another ground for vacating his
sentence: that the trial court erred by not granting his motion for a new trial based on newly
discovered evidence. (Doc. 26 at 3). Mr. Starks argues that “any claims by the government
witnesses are impeachable . . . and should be rejected by the Court.” Id. However, this claim is
not new and is essentially yet another challenge to the sufficiency of the evidence used to convict
Mr. Starks. As this issue was decided against him by the Eleventh Circuit, he is barred from relitigating it. See Nyhuis, 211 F.3d at 1343.

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2.

Procedurally Defaulted

The procedural default doctrine reflects the general rule that claims not raised on direct
appeal may not be raised on collateral review. See Massaro v. United States, 538 U.S. 500, 504
(2003). Federal courts will not review a procedurally defaulted claim unless the defendant can
show either (1) cause for the default and actual prejudice from the error; or (2) that the court’s
failure to consider the claim will cause a miscarriage of justice because the defendant is actually
innocent. See Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456
U.S. 152, 167 (1982).
To establish cause excusing default, the petitioner must put forward “some external
cause” for his failure to comply with the procedural requirements. Reece v. United States, 119
F.3d 1462, 1465 (11th Cir. 1997). A petitioner can also establish cause if he shows that his
counsel was ineffective. Id. The court has already concluded that Mr. Starks’s trial counsel’s
representation satisfied Strickland, and Mr. Starks presents no argument that his counsel for his
appeal was deficient in any way. Therefore, Mr. Starks cannot show cause for his default based
on ineffective assistance of counsel. Any cause shown must be some other external reason.
The miscarriage of justice standard requires the petitioner to show that he is actually
innocent and not merely that the evidence used against him was legally insufficient. See Murray
v. Carrier, 477 U.S. 478, 496 (1986). To establish actual innocence, petitioner must demonstrate
that, “in light of all the evidence . . . it is more likely than not that no reasonable juror would
have convicted him.” Schlup v. Delo, 513 U.S. 298, 327–28 (1995). The petitioner is required to
show “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.” Id. at 324.
Because Mr. Starks has failed to provide any new additional exculpatory evidence, he has

16

failed to make the stringent showing required to prove the actual innocence exception. Therefore,
the court will now consider whether Mr. Starks’s claims were raised in his direct appeal, and if
not, whether he has shown cause for their omission and prejudice if he is not permitted to present
them in this proceeding.
In his fifth ground, Mr. Starks alleges prosecutorial misconduct. (Doc. 6 at 6–11). Mr.
Starks claims he was targeted by the FBI and the prosecutor so the agent could win his first case.
Mr. Starks also alleges that the prosecutor made improper statements stereotyping Mr. Starks.
Mr. Starks has not presented cause for his inability to raise the issue on appeal. Therefore, Mr.
Starks's prosecutorial misconduct claim is procedurally defaulted.
In his sixth ground entitled “Notice of Pending Charges,” Mr. Starks alleges that he was
found guilty of a crime for which he was not indicted and that the proof offered by the
government at trial varied materially from what was contained in the indictment. (Doc. 6 at 11).
Again, Mr. Starks did not raise this ground on direct appeal and does not show now why he
failed to do so. Therefore, the claim is procedurally defaulted.
In Mr. Starks's second motion to amend his petition, he adds a ground for vacating his
sentence. Mr. Starks claims that the court erred in admitting evidence from a warrantless search
of his home and his mother's car. (Doc. 26 at 2). This ground is substantially similar to a
component of Mr. Starks’s third ground of his first amended petition. However, this ground is
procedurally defaulted. Mr. Starks did not raise the argument in his direct appeal and does not
now show cause for that omission. Therefore, this ground for relief is barred.
III.

CONCLUSION
Mr. Starks's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255

lacks merit. Mr. Starks has failed to establish that he is entitled to a new trial or any other relief.
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Therefore, the court DENIES the motion.

DONE this 8th Day of March, 2017.

___________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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