Gonzalez v. United States of America
Filing
14
OPINION AND ORDER denying 1 Motion to vacate, set aside, or correct sentence (2255) as to all claims, and alternatively dismissing as to the motion to dismiss Superceding Indictment and the challenge to the forfeiture money judgment. The Clerk sha ll enter judgment accordingly, place a copy of the Judgment in the corresponding criminal file (Case No. 2:05-cr-119-FTM-29DNF), and close the civil case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 10/25/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FIDEL GONZALEZ,
Petitioner,
vs.
Case No.
Case No.
2:09-cv-786-FtM-29DNF
2:05-cr-119-FtM-29DNF
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This
matter
comes
before
the
Court
on
Fidel
Gonzalez’s
(“Petitioner”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1;
Cr. Doc.
#261)1.
Petitioner filed a Memorandum of Law with
Appended Exhibits in Support of Movant’s Pro Se Motion to Vacate,
Set Aside or Correct a Federal Sentence or Conviction Pursuant to
28 U.S.C. § 2255 (Cv. Doc. #7).
The United States filed its
Response in Opposition to Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence, Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #10),
and Petitioner filed a Reply (Cv. Doc. #13).
1
The Court will make reference to the dockets in the instant
action and in the related criminal case throughout this Opinion and
Order. The Court will refer to the docket of the civil habeas case
as “Cv. Doc.”, and will refer to the docket of the underlying
criminal case as “Cr. Doc.”
I.
On June 29, 2006, a federal grand jury in Fort Myers, Florida,
returned a two-count Superseding Indictment (Cr. Doc. #73) against
petitioner Fidel Gonzalez (petitioner or Gonzalez) and his brother,
co-defendant Carlos Andres Gonzalez. In Count One, both defendants
were charged with conspiracy to possess with intent to distribute
more than 1,000 marijuana plants from in or about September 2001,
through and including May 17, 2005, in violation of 21 U.S.C. §§
841(a)(1),
841(b)(1)(A)(vii),
and
846.
In
Count
Two,
both
defendants were charged with possession with intent to distribute
more than 100 marijuana plants from in or about September 2001,
through and including May 17, 2005, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B)(vii), and 18 U.S.C. § 2.
The Superseding
Indictment also contained a forfeiture provision.
The case proceeded to a joint jury trial on March 13, 2007.
On March 22, 2007, petitioner was found guilty of Count One and not
guilty of Count Two. (Cr. Doc. #191.) Co-defendant Carlos Gonzalez
was found guilty of both counts.
On July 31, 2007, petitioner was
sentenced to a term of imprisonment of 120 months, followed by a
term of supervised release of five years. (Cr. Doc. #226.)
A
forfeiture money judgment in the amount of $1,290,000 was also
entered against Petitioner. (Cr. Doc #224.)
Petitioner appealed his conviction and sentence (see Cr. Doc.
#231), and on August 12, 2008, the Court of Appeals for the
-2-
Eleventh
Circuit
affirmed
(Cr.
Doc.
#257).
Gonzalez, 279 F. App’x 806 (11th Cir. 2008).
United
States
v.
Petitioner’s request
for certiorari review was denied by the United States Supreme Court
on December 8, 2008. Gonzalez v. United States, 129 S. Ct. 741
(2008).
The matter is now before the Court on petitioner’s timely
§ 2255 motion.
Because petitioner is proceeding pro se, his
pleadings are construed liberally. Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998).
II.
Petitioner raises multiple claims of ineffective assistance of
counsel in his § 2255 motion and Memorandum of Law.
The Court sets
forth the applicable legal principles, and then applies them to the
issues raised by petitioner.
A. Ineffective Assistance of Counsel Principles
To prevail on a claim of ineffective assistance of counsel, a
habeas petitioner must demonstrate both (1) that his counsel's
performance was deficient, and (2) a reasonable probability that
the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984).
first
determines
whether
counsel’s
Generally, a court
performance
fell
below
an
objective standard of reasonableness, and then determines whether
there
is
a
reasonable
probability
that,
but
for
counsel’s
unprofessional errors, the result of the proceeding would have been
different.
Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010).
-3-
A
court need not address both prongs of the Strickland test, however,
if a petitioner makes an insufficient showing as to either prong.
Dingle v. Sec’y for the Dep’t of Corr., 480 F.3d 1092, 1100 (11th
Cir. 2007); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000).
“As
to
counsel’s
performance,
‘the
Federal
Constitution
imposes one general requirement: that counsel make objectively
reasonable choices.’” Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d
1217, 1240 (11th Cir. 2010) (quoting Bobby v. Van Hook, 130 S. Ct.
13, 17 (2009)), cert. denied, 131 S. Ct. 177 (2010).
A court must
“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.”
Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690).
This judicial scrutiny is highly deferential, and
the court adheres to a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689-90.
To be objectively unreasonable,
the performance must be such that no competent counsel would have
taken the action.
Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir.
2010); Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001).
Further, “strategic choices made after [a] thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than a
complete investigation are reasonable precisely to the extent that
-4-
reasonable
professional
judgments
support
the
limitations
on
investigations.” Reed, 593 F.3d at 1240 (quoting Strickland, 466
U.S. at 690-91).
Additionally, an attorney is not ineffective for
failing to raise or preserve a meritless issue. Ladd v. Jones, 864
F.2d 108, 109-10 (11th Cir. 1989); United States v. Winfield, 960
F.2d 970, 974 (11th Cir. 1992). “To state the obvious: the trial
lawyers, in every case, could have done something more or something
different.
So, omissions are inevitable.
But, the issue is not
what is possible or ‘what is prudent or appropriate, but only what
is constitutionally compelled.’” Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quoting Burger v. Kemp,
483 U.S. 776, 794 (1987)).
To establish prejudice under Strickland, petitioner must show
more than that the error had “some conceivable effect on the
outcome of the proceeding.”
Marquard v. Sec'y for the Dep’t of
Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation marks
omitted).
“Rather, the
reasonable
probability
petitioner
that,
but
must
for
show
that there
counsel’s
is a
unprofessional
errors, the result of the proceeding would have been different.”
Id. (quotation marks omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
The same deficient performance and prejudice standards apply
to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285-86
-5-
(2000); Roe v. Flores-Ortega, 528 U.S. at 476-77.
If the Court
finds there has been deficient performance, it must examine the
merits of the claim omitted on appeal.
If the omitted claim would
have had a reasonable probability of success on appeal, then the
deficient performance resulted in prejudice. Joiner v. United
States, 103 F.3d 961, 963 (11th Cir. 1997).
Nonmeritorious claims
which are not raised on direct appeal do not constitute ineffective
assistance of counsel. Diaz v. Sec’y for the Dep’t of Corr., 402
F.3d 1136, 1144-45 (11th Cir. 2005).
B. Evidentiary Hearing Principles
Petitioner
asserts
that
the
cumulative
effect
attorneys’ errors requires an evidentiary hearing.
p. 9.)
of
the
(Cv. Doc. #1,
A district court shall hold an evidentiary hearing on a
habeas petition “unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief
. . . “ 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts
that, if true, would entitle him to relief, then the district court
should order an evidentiary hearing and rule on the merits of his
claim.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.
2002) (internal quotation marks and citation omitted).
However, a
“district court is not required to hold an evidentiary hearing
where the petitioner’s allegations are affirmatively contradicted
by the record, or the claims are patently frivolous.”
Id. at 715.
See also Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir.
-6-
2008).
Here, even when the facts are view in the light most
favorable to petitioner, he has not established that either trial
counsel or appellate counsel provided constitutionally ineffective
assistance. Therefore, the Court finds that an evidentiary hearing
is not warranted in this case.
C.
Application of Legal Principles to Claims Raised
Petitioner purports to raise five grounds for relief in his §
2255 motion (Cv. Doc. #1) and seven overlapping grounds for relief
in his supporting Memorandum of Law (Cv. Doc. #7).
The Court is
required to read a pro se petitioner’s pleadings liberally, Hughes
v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003), and the Court will
address each argument in turn.
(1) Failure to File Pretrial Motions:
Petitioner asserts that his trial counsel provided ineffective
assistance by failing to file any pretrial motions.
Petitioner
asserts that counsel should have filed a motion for discovery, a
motion
for
Rule
404(b)
material,
a
motion
for
Brady/Giglio
material, a motion to compel agents to preserve rough notes, a
motion for the identity of confidential informants and equal access
for purposes of interview, a motion for severance, and a motion to
dismiss the indictment for want of sufficiency.
Such motions,
petitioner argues, were critical for development and evaluation of
the strengths and weaknesses of the government’s case and would
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have
aided
the
negotiations.
defense
in
trial
preparation
and
in
plea
(Cv. Doc. #1, p. 5; Cv. Doc. #7, pp. 6, 23.)
The court file reflects that the Court entered a wide-ranging
Criminal Scheduling Order (Cr. Doc. #140) requiring the disclosure
of discovery, Federal Rule of Evidence 404(b) information, Brady2
and Giglio3 material, and the preservation of the agent’s rough
notes.
The government provided full and open discovery (Cr. Doc.
#142) pursuant to the Court’s Criminal Scheduling Order.
Prior to
trial, the government filed a Government’s Witness Summary (Cr.
Doc.
#161)
as
to
its
expert
witnesses,
an
amended
bill
of
particulars as to forfeiture of property (Cr. Doc. #168), an
exhibit list (Cr. Doc. #175) and a witness list (Cr. Doc. #176).
Plea agreements by the other co-defendants were in the court file.
(Cr. Docs. ## 81, 90.)
There was simply no need for trial counsel
to file additional motions seeking any of the materials petitioner
now asserts should have been sought.
Additionally, as discussed
below, there would have been no merit to a motion for severance or
a motion to dismiss, and petitioner fails to argue what evidence
should
have
petitioner
been
has
suppressed
established
or
why.
neither
The
deficient
Court
finds
performance
that
nor
prejudice based upon trial counsel’s failure to file pretrial
motions.
2
Brady v. Maryland, 373 U.S. 83 (1963).
3
Giglio v. United States, 405 U.S. 150 (1972).
-8-
(2)
Failure to Challenge Sufficiency of the Indictment:
Petitioner argues that his trial counsel provided ineffective
assistance
by
failing
to
challenge
the
sufficiency
of
the
Superceding Indictment either pretrial or post-trial. (Cv. Doc. #1,
p. 6; Cv. Doc. #7, pp. 6-7.)
For the reasons set forth below, the
Court disagrees.
The Federal Rules of Criminal Procedure provide that an
indictment
“must
be
a
plain,
concise,
and
definite
written
statement of the essential facts constituting the offense charged
and must give the official or customary citation of the statute,
rule, regulation, or other provision of law that the defendant is
alleged to have violated.” Fed. R. Crim. P. 7(c)(1).
“[A]n
indictment is sufficient if it, first, contains the elements of the
offense charged and fairly informs a defendant of the charge
against which he must defend, and second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the same
offense.”
Hamling v. United States, 418 U.S. 87, 117 (1974).
It
is generally sufficient for an indictment to track the language of
the statute as long as the statute “‘fully, directly and expressly,
without any uncertainty or ambiguity, set[s] forth all the elements
necessary to constitute the offense intended to be punished.’”
United States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) (quoting
United States v. Carll, 105 U.S. 611, 612 (1882)).
However,
“[e]ven when an indictment tracks the language of the statute, it
-9-
must be accompanied with a statement of facts and circumstances as
will inform the accused of the specific offense, coming under the
general description, with which he is charged.” United States v.
Schmitz, 634 F.3d 1247, 1261 (11th Cir. 2011) (quotation marks
omitted).
Count One of the Superseding Indictment, the only count on
which petitioner was convicted, provides as follows:
From a date unknown, but at least by, in, or about
September 2001, through and including May 17, 2005, in
Lee County, in the Middle District of Florida and
elsewhere, CARLOS ANDRES GONZALEZ, a/k/a “Andy,” and
FIDEL GONZALEZ a/k/a “Fidelito”, the defendants herein,
did
knowingly
and
willfully
combine,
conspire,
confederate and agree with each other and with other
persons known and unknown to the Grand Jury, to possess
with intent to distribute more than one thousand (1000)
marijuana plants, a Schedule I Controlled Substance, in
violation of Title 21, United States Code, Sections
841(a)(1) and 841(b)(1)(A)(vii).
All in violation of
Title 21, United States Code, Section 846.
(Cr. Doc. #73, p. 1.)
Consistent with Fed. R. Crim. P. 7(c)(1),
Count One is a plain, concise, and definite written statement of
the essential facts constituting the offense charged.
Count One
cited the applicable statutes that petitioner is alleged to have
violated, tracked the language of the statute, and set forth all
the elements of the offenses.
the time frame,
location,
Additionally, Count One specified
some
of
the participants,
controlled substance involved in the alleged offense.
-10-
and
the
Count One
was sufficient to inform petitioner of the specific offense with
which he was charged.4
The Court finds that counsel’s decision not to challenge the
sufficiency
of
the
Superseding
Indictment
was
not
deficient
performance because a motion to dismiss Count One would have been
without merit.
As discussed above, an attorney is not required to
file a meritless motion in order to provide effective assistance of
counsel.
Petitioner’s Memorandum of Law also seems to suggest that he
is now moving to dismiss for lack of jurisdiction/failure to state
an offense.
To the extent petitioner is moving to dismiss the
Superceding Indictment, the motion is dismissed as untimely and
alternatively denied as without merit.
Under Fed. R. Crim. P. 12(b)(3)(B), a motion to dismiss
asserting
that
the
indictment
fails
to
invoke
the
court’s
jurisdiction or to state an offense must be filed “at any time
while the case is pending.”
A case is no longer “pending” for the
purposes of Rule 12(b)(3)(B) once the mandate has issued in the
direct appeal. United States v. Elso, 571 F.3d 1163, 1166 (11th
Cir. 2009).
The mandate in this case was issued on August 12, 2008
(Cr. Doc. #257), and therefore the Court lacks jurisdiction to
consider a post-conviction motion to dismiss.
4
Alternatively, a
Although petitioner was not convicted of Count Two, the Court
finds that it too was constitutionally sufficient.
-11-
motion to dismiss would be denied as without merit for the same
reasons set forth above – the Superceding Indictment states an
offense and confers jurisdiction on the district court.
(3) Considering Acquitted Conduct:
Intermingled with petitioner’s sufficiency of the indictment
claim is an assertion that trial counsel provided ineffective
assistance
by
failing
to
object
when
petitioner
was
held
accountable for marijuana plants associated with Count Two, the
count
for
which
he
was
acquitted.
(Cv.
Doc.
#1,
p.
6.)
Additionally, intermingled with his failure to make a Rule 29(a)
motion issue is the claim that trial counsel provided ineffective
assistance by not arguing that the 100 marijuana plants from the
acquitted count should have been subtracted from the Count One
plants, leaving only 916 plants and subjecting petitioner to a
lesser mandatory minimum sentence.
(Cv. Doc. #1, p. 8.)
At the time of sentencing, the law was clear that a defendant
could be held accountable for acquitted conduct if the conduct was
proved by a preponderance of the evidence and the sentence does not
exceed the statutory maximum authorized by the jury’s verdict.
United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005);
United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006);
United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006).
The
jury found beyond a reasonable doubt that the conduct in Count Two
was committed by the co-defendant, and the Court found that the
-12-
marijuana
in
Count
Two
was
relevant
conduct
committed
furtherance of the conspiracy charged in Count One.
in
Because the
record evidence supports that finding, trial counsel did not
provide
ineffective
assistance
by
failing
to
object
to
the
consideration of the Count Two marijuana in the calculation of the
amount of marijuana attributable to petitioner.
(4) Failure to Move for Judgment of Acquittal:
Petitioner argues that his trial counsel provided ineffective
assistance by failing to move for judgment of acquittal at the
conclusion of the government’s case based upon the government’s
failure to prove more than 1,000 plants, and that appellate counsel
should have pursued the matter on appeal.
Petitioner argues that
if such a motion had been made, the sufficiency of the evidence
would have been reviewed on appeal under an abuse of discretion
standard, instead of the stricter standard actually utilized by the
appellate court
(Cv. Doc. #1, p. 8; Cv. Doc. #7, pp. 5, 8-9.)
As discussed before, an attorney need not make a meritless
motion in order to provide effective assistance.
A Rule 29(a)
motion at the conclusion of the government’s case may only be
granted if “the evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a).
The evidence is viewed in the light most
favorable to the government and all reasonable inferences are drawn
in favor of the jury’s verdict.
United States v. Gari, 572 F.3d
1352, 1359 (11th Cir. 2009) (citing United States v. Dulcio, 441
-13-
F.3d 1269, 1276 (11th Cir. 2006)).
The trial court’s inquiry is
whether a reasonable fact-finder could determine that the evidence
proved that the defendant is guilty beyond a reasonable doubt. Id.
(citing United States v. Smith, 459 F.3d 1276, 1286 (11th Cir.
2006)).
In this case, defense counsel did not make a motion for
judgment of acquittal, but such a motion would have been a futile
effort both in the district court and the appellate court.
The
jury heard testimony from Gilberto Perez, Jose Hernandez, Osvaldo
Alonso,
Carlos
Hernandez,
and
Ignacio
Carbajal
regarding
quantity of marijuana plants involved in the conspiracy.
the
Based
upon this evidence, a reasonable jury could have determined, and
ultimately did determine, that petitioner was guilty beyond a
reasonable doubt of conspiring to possess with intent to distribute
more than 1000 marijuana plants.
Even if preserved in the district court, the sufficiency of
the evidence would have been reviewed on appeal under the de novo
standard, with the appellate court viewing the evidence in the
light most favorable to the Government, and determining whether a
rational
juror
could
reasonable doubt.
have
found
defendant
Gari, 572 F.3d at 1359.
guilty
beyond
a
Under this standard,
the appellate court leaves a jury “free to choose between or among
the reasonable conclusions to be drawn from the evidence presented
at trial, [ ] and the court must accept all reasonable inferences
-14-
and credibility determinations made by the jury.” United States v.
Sellers, 871 F.2d 1019, 1021 (11th Cir. 1989) (citations omitted).
Under a de novo standard, the denial of a motion for judgement of
acquittal would have been upheld.
As the Eleventh Circuit noted,
the witnesses’ testimony “established that [Petitioner] assisted in
the cultivation of over 1000 marijuana plants in homes located in
Homestead, Miami, and Cape Coral.”
Gonzalez, 279 F. App’x at 811.
Because a motion for judgment of acquittal was without merit,
would have been denied by the district court, and the denial would
have been upheld on appeal under a de novo standard of review, the
Court finds that no deficient performance or prejudice resulted
from trial counsel’s failure to make such a motion.
This claim is
therefore without merit.
(5) Failure to Proffer Defense with Rebuttal Witnesses:
Intermingled with his Rule 29(a) motion, petitioner asserts
that “Trial counsel failed to proffer a case-in-chief for the
defense with rebuttal witnesses.”
(Cv. Doc. #1, p. 8.)
Nothing
further is discussed regarding this point, and petitioner has
failed to establish a factual predicate for any such claim other
than the issues discussed elsewhere.
(6) Failure to Challenge Forfeiture Money Judgment:
Petitioner challenges the amount of the money judgment, and
argues that both trial and appellate counsel provided ineffective
assistance by failing to argue that the money judgment was invalid
-15-
because it was based upon the acquitted conduct, and to argue
against a determination by the court and not the jury as to the
amount and value of the marijuana.
(Cv. Doc. #1, p. 8; Cv. Doc.
#7, pp. 6, 23-24.)
A challenge to restitution is not cognizable in a § 2255
proceeding because “a successful challenge to the restitution part
of his sentence would, in no way, provide relief for the physical
confinement supplying the custody necessary for federal habeas
jurisdiction.”
Arnaiz v. Warden, 594 F.3d 1326, 1329 (11th Cir.
2010).
See also Mamone v. United States, 559 F.3d 1209 (11th Cir.
2009).
Similarly, a challenge to a forfeiture money judgment is
not cognizable in a § 2255 proceeding.
Saldana v. United States,
273 F. App’x 842 (11th Cir. 2008); United States v. Finze, 428 F.
App’x 672, 677 (9th Cir. 2011)(citing Mamone).
Therefore, this
portion of the § 2255 motion is dismissed.
Alternatively on the merits, the Court finds that forfeiture
is a matter for the court to determine, not the jury, Fed. R. Crim.
P. 32.2(b)(1)(A), and that sufficient evidence was presented to
support the forfeiture money judgment.
ineffective assistance of counsel.
Therefore, there was no
At sentencing, the Court found
that 430 pounds was a reasonable, conservative estimate of the
marijuana that was harvested during the course of the conspiracy
and that $3,000 was a reasonable value of the marijuana. (Cr. Doc.
#234, p. 35.)
Based upon these figures, the Court entered a money
-16-
judgment of $1,290,000 against Petitioner. (Cr. Doc. #234, p. 35.)
The Court’s determination was based upon the marijuana involved in
the conspiracy, and the Court had the authority to determine the
money judgment. Fed. R. Crim. P. 32.2(b)(1)(A), (B). Neither trial
counsel nor appellate counsel provided ineffective assistance with
regard to the forfeiture.
(7)
Failure to Challenge Leader-Organizer Enhancement:
Petitioner argues that the government failed to prove his role
as leader-organizer, and that trial counsel and appellate counsel
provided ineffective assistance by failing to properly challenge
the leader-organizer enhancement5 prior to and at the time of
sentencing.
eligible
for
Because
“safety
of
this,
valve”
petitioner
asserts
consideration
additional 69 months of imprisonment.
and
he
was
not
received
an
(Cv. Doc. #1, p. 9; Cv.
Doc. #7, pp. 5, 12-21).
The record establishes, and petitioner concedes (Cv. Doc. #7
p. 12), that counsel objected to the leader-organizer enhancement
prior to and at the time of sentencing.
Counsel filed Objections
to Presentence Investigation Report which states,
Mr. Gonzalez objects to the adjustment for role enhancement in
the computation of his total offense level. The PSR alleges
that Mr. Gonzalez was an organizer or leader of the criminal
5
“If [a] defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive,” then the district court must increase the defendant’s
offense level by four levels. U.S. Sentencing Guidelines Manual §
3B1.1(a).
-17-
activity and enhanced the offense level by 4 levels.
Mr.
Gonzalez submits that the verdicts of jury and the lack of
credible testimony or other evidence do not support the
enhancement.
(Cr. Doc. #214, p. 3.) Furthermore, during the sentencing hearing,
counsel objected to the leader-organizer enhancement and argued
that the evidence did not support the enhancement. (Cr. Doc. #234,
pp. 8-10.)
The Court overruled Petitioner’s objection based upon
the evidence presented at trial and sentencing, and explicitly
determined
that
the
four-level
applied. (Id., pp. 11-19.)
leader-organizer
enhancement
Petitioner’s complaint is not with the
performance with his attorneys, but with the Court’s ruling (Cv.
Doc. #7, pp. 12-20).
The Court finds no ineffective assistance of
counsel as it relates to the leader-organizer enhancement.
Petitioner also argues that appellate counsel was ineffective
for failing to raise the leader-organizer enhancement on appeal.
The Eleventh Circuit reviews the determination that a defendant was
entitled to a role enhancement under U.S. Sentencing Guidelines
Manual § 3B1.1 for clear error. United States v. Cerpas, 397 F.
App’x 524,
525-26
(11th
Cir.
2010)
(citing
United
Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005)).
Court
applied
the
factors
enumerated
in
States
v.
In this case, the
the
United
States
Sentencing Guidelines, as well as the factors enumerated in United
States v. Rendon, 354 F.3d 1320, 1331-32 (11th
Cir. 2003), in
determining that the leader-organizer enhancement applied. (Cr.
Doc. #234, pp. 18-19.)
While petitioner disagrees, and asserts
-18-
that the government’s proof is unsubstantiated, the Court found
otherwise and that finding is amply supported by the record.
Appellate counsel did not provide ineffective assistance by failing
to raise this as an issue on appeal.
(8) Relevant Conduct Advice:
Petitioner argues that he was not advised pretrial as to how
relevant conduct would be used to calculate his ultimate sentence.
(Cv. Doc. #1, p. 9.)
Nothing further is alleged as to this issue,
and there is no showing of ineffective assistance of counsel.
Under the circumstances of this case, counsel had no obligation to
discuss the nuances of the relevant conduct Sentencing Guidelines
with petitioner prior to trial.
(9)
Failure to Challenge the Verdict Form:
In a footnote, petitioner argues that counsel was ineffective
for failing to challenge the verdict form.
n.18.)
Petitioner
also
alleges
that
the
(Cv. Doc. #7, p. 9
verdict
form
was
prejudicial because it effectively guaranteed that the jury would
find that the conspiracy involved the threshold quantity of 1000
marijuana plants. (Cv. Doc. #13, pp. 2-3.)
The jury was instructed that if it found petitioner guilty of
conspiring to possess with intent to distribute marijuana plants,
it was then to determine the quantity of marijuana plants involved
in the conspiracy.
As to the quantity, the verdict form provided
that:
-19-
We the Jury, having found Fidel Gonzalez guilty of the offense
charged in Count One unanimously find beyond a reasonable
doubt that this offense involved the following number of
marijuana plants:
more than 1000 marijuana plants; or
1000 or less marijuana plants
(Doc. Cr. #191, pp. 1-2) (emphasis added).
The jury found that the
offense involved more than 1000 marijuana plants.
Petitioner
argues that the verdict form was incorrect because the statute
provides for an increased mandatory minimum sentence for “1000 or
more” marijuana plants, not “more than 1000” plants.
21 U.S.C. §
841(b)(1(A)(vii).
Petitioner is correct that § 841(b)(1(A)(vii) provides for an
enhanced statutory mandatory minimum for “1,000 or more marijuana
plants regardless of weight; . . .”
21 U.S.C. § 841(b)(1(A)(vii).
While the statute only required the government to prove 1,000
plants (or more), Count One of the Superceding Indictment alleged
“more than one thousand (1000) marijuana plants.”
(Cr. Doc. #73.)
Having alleged one more plant than required by the statute, the
government was required to prove that quantity and the verdict form
accurately reflected that assumed burden.
Additionally, nothing
about the verdict form directed the jury to determine which of the
two options were appropriate.
Counsel did not provide ineffective
assistance of counsel by failing to challenge the verdict form.
(10) Denial of Petitioner’s Constitutional Right to Testify:
-20-
Petitioner argues that he did not know the decision as to
whether
he
would
testify
was
his
to
make,
that
his
counsel
instructed him not to testify on his own behalf, that such an
instruction “goes beyond the pale of proper advocacy,” and that
“there
is
every
reason
to
believe
that
the
jury
would
have
acquitted” him if he had testified. (Cv. Doc. #7, pp. 5, 10-11.)
In support of this argument, Petitioner signed a Sworn Declaration
in Support of Pro Se Motion to Vacate Pursuant to 28 U.S.C. § 2255
which states that “at all times relevant I was instructed by
attorney Rene Sotorrio that I could not testify at trial or speak
at sentencing in my own behalf even though I requested to do so
many times.” (Cv. Doc. #7, Exh. #2.)
Furthermore, the Sworn
Declaration states that, “at all times relevant, attorney Sotorrio
made the decision [that I would not testify] alone and without [my]
consent.” (Cv. Doc. #7, Exh. #2.)
Petitioner’s own Memorandum of
Law, however, states that his “counsel instructed [Petitioner] that
he could not testify on pain of damaging his defense.”
(Cv. Doc.
#7, p. 10)(emphasis added).
The
record
establishes
that
Petitioner
advised by the Court of his right to testify.
March 20,
2007,
the
Court
instructed
was
specifically
During trial on
petitioner
and
his
co-
defendant that,
you each have an absolute right to testify on your own behalf.
You also each have the right not to testify. The choice is up
to each of you, individually. Your lawyers can give you their
best advice and recommendation, but, ultimately, it’s up to
-21-
you to each decide, for yourself, whether you wish to testify
or not.
(Cr. Doc. #208, p. 935.)
When asked if he understood, Petitioner
responded, “Yes.” (Id., p. 936.)
On March 21, 2007, after defense
counsel announced that he would rest without calling defendant to
testify, the Court had the following exchange with defendant:
THE COURT: Your attorney has indicated that you will be
resting without testifying, yourself, or calling any other
witnesses. Is that your decision?
FIDEL GONZALEZ(Via Interpreter): Yes, sir.
THE COURT: It’s your own, independent decision not to testify
on your own behalf in this case?
FIDEL GONZALEZ (Via Interpreter): Yes, sir.
(Cr. Doc. #209, p. 1030.)
While petitioner argues that his
statements to the Court were given only because his counsel told
him to answer in such a way, the court is entitled to rely on
petitioner’s statements on the record.
(11)
Failure to Move for Severance:
Petitioner argues that trial counsel provided ineffective
assistance by failing to move for severance from his co-defendant
pursuant to Fed. R. Crim. P. 14, and that appellate counsel
provided ineffective assistance by failing to raise this issue on
appeal.
Petitioner argues that his trial should have been severed
because he shared the last name “Gonzalez” with the co-defendant
and, as a result, evidence presented against the co-defendant
-22-
prejudicially “spilled over” against petitioner.
5, 21-23.)
(Cv. Doc. #7, p.
Petitioner’s claim is without merit.
The Eleventh Circuit has held that defendants who are jointly
indicted should be tried together, particularly in conspiracy
cases. United States v. Brooks, 270 F. App’x 847, 849 (11th Cir.
2008) (citing United States v. Baker, 432 F.3d 1189, 1236 (11th
Cir. 2005)).
Federal Rule of Criminal Procedure 14 provides that,
If the joinder of offenses or defendants in an indictment
. . . appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the
defendants' trials, or provide any other relief that justice
requires.
Fed. R. Crim. P. 14(a).
to
consider
the
“‘[C]autionary
evidence
separately
instructions to the jury
are
presumed
to
guard
adequately against prejudice.’” United States v. Francis, 131 F.3d
1452, 1459 (11th Cir. 1997) (citation omitted).
In
this
case,
Petitioner
and
co-defendant
were
jointly
indicted on the same conspiracy charge and their cases proceeded to
trial together. During trial, the jury was specifically instructed
that,
the case of each Defendant should be considered separately and
individually. The fact that you may find any one or more of
the Defendants guilty or not guilty of any of the offenses
charged should not affect your verdict as to any other offense
or any other Defendant.
(Cr.
Doc.
#193,
p.
24.)
Petitioner
fails
to
presumption that the jury followed the instruction.
-23-
overcome
the
Petitioner
fails to identify a single place in the record where there appears
to be confusion about which evidence was presented against which
defendant due to the shared last name.
Furthermore, while co-
defendant Carlos Gonzalez was convicted of both counts, petitioner
was convicted of Count One and acquitted of Count Two (Cr. Docs. ##
191, 192), thereby establishing a lack of prejudice to petitioner
due to a joint trial with a co-defendant with the same surname.
The Court finds that neither trial nor appellate counsel provided
ineffective assistance of counsel with regard to severance.
(12) Failure to File Separate Appellate Brief:
Petitioner
argues
that
his
appellate
counsel
provided
ineffective assistance by not filing a separate brief on appeal
from
his
co-defendant
brother.
Petitioner
asserts
that
the
Eleventh Circuit opinion demonstrates “slop-over” confusion as to
which
Gonzalez
perpetrated
affirmance of his conviction.
what
conduct,
resulting
in
the
(Cv. Doc. #1, p. 9; Cv. Doc. #7, p.
23.)
The decision of the court of appeals indicates no confusion of
any kind resulting from the joint brief or the fact that both
defendants have the same surname.
Indeed, the decision indicates
just
no
the
opposite.
There
was
ineffective
assistance
of
appellate counsel because of a joint brief or consolidated appeal.
Accordingly, it is now
-24-
ORDERED:
1. Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc.
#1; Cr. Doc. #261) is DENIED as to all claims for the reasons set
forth above, and is alternatively DISMISSED as to the motion to
dismiss Superceding Indictment and the challenge to the forfeiture
money judgment.
2. The Clerk of Court shall enter judgment accordingly,
terminate any pending motions, and close the civil file. The Clerk
is further directed to place a copy of the civil Judgment in the
criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas corpus
has no absolute entitlement to appeal a district court’s denial of
his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell,556 U.S.
180, 129 S. Ct. 1481, 1485 (2009). “A [COA] may issue . . . only if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a
showing, petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
or,
that
“the
issues
presented
-25-
were
‘adequate
to
deserve
encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citation omitted).
Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2011.
Copies:
Petitioner
Counsel of Record
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25th
day of
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