Young v. United States of America

Filing 14

OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) on the merits. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:08-cr-42-FTM-29SPC), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 7/30/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARLOS YOUNG,
Petitioner,
v.

Case No. 2:11-cv-668-FtM-29CM
Case No. 2:08-cr-42-FtM-29SPC

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#163) 1 filed on November 21, 2011.

The government filed a Response

in Opposition to Motion (Cv. Doc. #8) on February 10, 2012.

For

the reasons set forth below, the motion is denied.
I.
On March 26, 2008, a federal grand jury in Fort Myers, Florida
returned a two-count Indictment (Cr. Doc. #1) against Carlos Young
(petitioner or Young), Osner Exantus (Exantus), George Edward
Hall, III (Hall), and John Dukes (Dukes).

1The

In Count One, all

Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
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.”
Page numbers will be the court’s computergenerated numbers in the upper right corner of the document.

defendants were charged with conspiracy to possess with intent to
distribute five hundred grams or more of cocaine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii)(II), and 846.
all

defendants

were

charged

with

possession

In Count Two,

with

intent

to

distribute five hundred grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii)(II).

Both charges against

Exantus, Hall, and Dukes were dismissed prior to trial, leaving
petitioner as the sole remaining defendant.
Count

One

as

to

petitioner

was

dismissed

government prior to trial. (Cr. Doc. #138.)

(Cr. Doc. #116.)
on

motion

by

the

Petitioner was found

guilty on Count Two of the Indictment after a jury trial.

(Cr.

Doc. #130.)
On June 22, 2009, the Court sentenced petitioner to a term of
imprisonment of eighty-seven months, to be followed by a term of
supervised release of forty-eight months, and a special assessment
of one hundred dollars.

(Cr. Doc. #146.)

Judgment was filed on

June 23, 2009.

(Cr. Doc. #147.)

Petitioner filed an appeal on

June 24, 2009.

(Cr. Doc. #148.)

On May 6, 2010, the Eleventh

Circuit Court of Appeals affirmed both the conviction and the
denial

of

statements.

petitioner’s

motion

to

suppress

his

incriminating

United States v. Young, 377 F. App’x 965 (11th Cir.

2010); (Cr. Doc. #162).

Petitioner did not file a petition for

writ of certiorari.

- 2 -

II.
Petitioner raises multiple claims of ineffective assistance
of trial counsel: (1) failure to object to dismissal of the
conspiracy count and allowing trial on the possession count; (2)
failure to object to the government soliciting a false statement
from a witness; (3) failure to challenge the validity of the
traffic

stop;

(4)

failure

to

challenge

the

validity

of

the

petitioner’s detention; (5) failure to challenge the drug dog’s
qualifications; (6) failure to assert a defense of duress to show
that

petitioner’s

confession

was

involuntary;

(7)

failure

to

object to the altered video of the arrest, where the full video
would have shown that the stop and detention were invalid; (8)
failure

to

investigate

and

call

witnesses;

petitioner not to testify at trial.
construed,
provided

the

petition

ineffective

also

for

(9)

(Cv. Doc. #1.)

asserts

assistance

and

that

advising
Liberally

appellate

failing

to

counsel

raise

the

ineffective assistance of trial counsel on appeal (Cv. Doc. #1, p.
3.)
A. Evidentiary Hearing
A district court shall hold an evidentiary hearing on a habeas
petition “[u]nless 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

- 3 -

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 . . . .”
at 715.

Id.

See also Gordon v. United States, 518 F.3d 1291, 1301

(11th Cir. 2008).

Here, even when the facts are viewed in the

light most favorable to petitioner, the record establishes that
petitioner received effective assistance of counsel in this case
and there was no trial court error.

Therefore, the Court finds

that an evidentiary hearing is not warranted in this case.
B. Timeliness Of § 2255 Motion
While the §2255 motion appears to be untimely, the government
has waived this issue.

The Court’s Order (Cv. Doc. #4) directing

a response requires the government to state whether there is any
bar against the petitioner and to state whether the motion was
filed within the one year limitation period.

The government’s

Response (Cv. Doc. #8) did not discuss the one year limitation
period and did not assert any bar against petitioner.

The one-

year limitations period is an affirmative defense which is waived
if not raised.

Wood v. Milyard, ___ U.S. ___, 132 S. Ct. 1826,

1832

While

(2012).

the

Court

has

discretion

to

raise

the

limitations issue sua sponte, Jackson v. Sec’y for Dep’t of Corr.,

- 4 -

292 F.3d 1347, 1349 (11th Cir. 2002), the Court declines to do so
here,

Rogers

v.

United

States,

8:10-CV-1873-T-27EAJ,

2013

WL

6047022, *1 (M.D. Fla. Nov. 13, 2013) (citing Wood).

Therefore,

the

raised

Court

will

address

the

merits

of

the

claims

by

petitioner.
C. Ineffective Assistance of Counsel Claims
(1)

General Legal Principles

The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.

To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that,

but

for

the

deficient

performance,

proceeding would have been different.
___,

134

S.

Ct.

1081,

1087-88

the

result

of

the

Hinton v. Alabama, ___ U.S.

(2014)

(citing

Strickland

v.

Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)).
The

proper

measure

of

attorney

performance

is

simply

reasonableness under prevailing professional norms considering all
the

circumstances.

omitted).

Hinton,

134

S.

Ct.

at

1088

(citations

A court must “judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct . . . .”

- 5 -

Roe v. Flores-Ortega,

528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690)
(internal quotation marks omitted).

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.

Rose v. McNeal,

634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611 F.3d
1259, 1290 (11th Cir. 2010).

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 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).
reasonable

Rather, the petitioner must show that there is a
probability

that,

but

for

counsel’s

unprofessional

errors, the result of the proceeding would have been different.
Hinton, 134 S. Ct. at 1087-88.

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”
Id. at

1089

(quoting

Strickland,

466

quotation marks and citations omitted).

- 6 -

U.S.

at

694)

(internal

The same deficient performance and prejudice standards apply
to appellate counsel.

Smith v. Robbins, 528 U.S. 259, 285-86

(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.
States, 103 F.3d 961, 963 (11th Cir. 1997).

Joiner v. United

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).
(2)

Specific Claims
(a)

Failure to Object to Government’s Motion to Dismiss
Conspiracy Count (Issue 1)

After the court called the case, and prior to beginning the
selection of a jury, the government moved to dismiss Count One,
the conspiracy charge.

Defense counsel did not object, and the

Court dismissed Count One as to petitioner.
7-8.)

(Cr. Doc. #157, pp.

Petitioner now claims that his counsel provided ineffective

assistance by not objecting to the government’s motion to dismiss
the conspiracy count and allowing petitioner to go to trial on
only the possession count.

(Cv. Doc #1.)

Petitioner asserts that

conspiracy was the “proper” count and that possession was an
“improper” count.

(Cv. Doc. #1, pp. 3-4.)

- 7 -

Petitioner argues that

he did not possess the cocaine because he was not the driver of
the car but was merely a passenger, and that his confession only
implied a conspiracy to possess and distribute the cocaine upon
arrival at their destination, not actual possession of cocaine en
route.

(Cv. Doc. #1, pp. 4, 19.)

Prior to trial the government is entitled to seek dismissal
of an indictment or a count of an indictment with leave of court
and without the defendant’s consent.

Fed. R. Crim. P. 48(a);

United States v. Brazel, 102 F.3d 1120, 1142 n.10 (11th Cir. 1997)
(Rule 48(a) covers the dismissal of counts of an indictment as
well as the whole indictment).

This is because an attorney for

the

an

United

States,

acting

as

executive

official

of

the

government, has the sole power to decide whether to prosecute a
case or a count.

United States v. Cowan, 524 F.2d 504, 507-08

(5th Cir. 1975).

A criminal trial commences when the jury has

been sworn, United States v. Del Vecchio, 707 F.2d 1214, 1215 (11th
Cir. 1983), and therefore the government was permitted to seek
dismissal with leave of court and without the defendant’s consent.
The government is entitled to the presumption of good faith in
connection with a Rule 48(a) dismissal.

United States v. Dyal,

868 F.2d 424, 428 (11th Cir. 1989); United States v. Matta, 937
F.2d 567, 568 (11th Cir. 1991).
Not only was petitioner’s consent not needed for the dismissal
of the conspiracy count, there was neither deficient performance

- 8 -

nor prejudice to petitioner by counsel’s failure to object to the
dismissal.

The

characterizes

as

effect

was

“proper”

that
was

the

charge

dismissed.

which
There

petitioner
can

be

no

deficient performance or prejudice when defense counsel obtains
such a beneficial result for a defendant.
Petitioner also asserts that his trial counsel should have
preserved this issue for appeal with a motion for acquittal.
Doc. #1, p. 19.)

No motion for acquittal was appropriate for a

count which was dismissed prior to trial.
dismissal

would

(Cv.

have

been

frivolous,

and

Any appeal of the
counsel

was

not

ineffective in his handling of the government’s motion to dismiss.
(b)
Petitioner

Failure to Object to Trial by Ambush (Issue 2)
asserts

that

his

trial

attorney

provided

ineffective assistance by failing to object to “trial ambush” by
the prosecutor.

(Cv. Doc. #1.)

Petitioner asserts that the only

evidence of the drugs being in his possession is the affirmative
response by Trooper Heinlein at trial to the following question
from the prosecutor: “So, of the four people in the vehicle, the
only one that you heard actually acknowledge that it was his
cocaine was Mr. Young.”

(Cv. Doc. #1; Cr. Doc. #157, p. 97.)

Petitioner claims the Trooper’s testimony is false because up until
that point, the Trooper’s report and statements asserted that
petitioner had said that there was cocaine in the trunk and “we
were on our way to St. Pete to sell it.”

- 9 -

Petitioner claims this

statement was an admission of conspiracy to possess the cocaine,
but not possession of cocaine.

(Cv. Doc. #1, pp. 19-20.)

There is no evidence of an ambush or that Trooper Heinlein
perjured himself when he affirmed that the petitioner acknowledged
that the drugs were his.

The government had supplied petitioner’s

counsel with a copy of the Trooper’s report containing petitioner’s
statements well prior to trial, and defense counsel moved to
suppress the statement.

(Cr. Doc. #60.)

The Trooper testified

to the post-arrest statements at the suppression hearing, i.e.,
that petitioner stated there was one and a half kilos in the trunk
of the vehicle. (Cr. Doc. #78, pp. 16-18.)

In opening statement

defense counsel told the jury that the evidence would indicate
that someone other than petitioner owned the cocaine and that the
statements attributed to petitioner may or may not have been made.
(Cr. Doc. #157, p. 224.)

At trial the Trooper testified to the

same statements by petitioner (Cr. Doc. #157, p. 225): “there’s
one and a half kilos in the vehicle, statements of that nature”
and that “they had been trying to get rid of it, and they hadn’t
been able to do so, so they were going up to Saint Petersburg to
try and sell it.”
Trooper:

(Id. at 224.)

Later, the prosecutor asked the

“To the best of your knowledge, as an officer in this

case, did Mr. Exantus, Mr. Hall, or Mr. Dukes every say that they
had any interest in that cocaine?”

The Trooper responded:

did not say anything in such a way.”

- 10 -

(Id. at 225.)

“They

The Trooper

was then asked if they ever indicated any ownership of that
cocaine, to which he responded no.
was asked:

(Id.)

Finally, the Trooper

“So, of the four people in the vehicle, the only one

that you heard actually acknowledge that it was his cocaine was
Mr. Young?”, to which the officer said “yes sir.”
The

Trooper’s

response

to

the

final

(Id.)

question

was

not

inconsistent with his reports and was not surprise testimony.
Petitioner’s admission regarding the trip to St. Petersburg so
that “they” could sell the drugs was reasonably construed as an
acknowledgment that petitioner had at least joint possession and
control of the cocaine.

Additionally, the jury was correctly

instructed as to the meaning of possession 2.

2

(Cr. Doc. #157, pp.

The instruction on possession stated:
The
law
recognizes
several
kinds
of
possession.
A person may have actual
possession or constructive possession.
A
person may also have sole possession or joint
possession.
A person who knowingly has direct physical
control of something is then in actual
possession of it.
A person who is not in actual possession, but
who has both the power and the intention to
later take control over something either alone
or
together
with
someone
else,
is
in
constructive possession of it.
If one person alone has possession of
something, that possession is sole. If two or
more persons share possession, such possession
is joint.

- 11 -

211-214.)

There is no evidence of misconduct by the Trooper or

the prosecutor, and petitioner has not shown any ineffective
assistance of counsel as to this issue.
(c)

Failure

to

Challenge

Validity

of

Traffic

Stop

(Issue 3)
Petitioner

asserts

that

his

trial

counsel

provided

ineffective assistance by failing to challenge the validity of the
traffic stop.
the

fact

that

Petitioner asserts that counsel did not challenge
the

vehicle

calibrated radar equipment.

was

speeding

or

require

proof

of

In the absence of such evidence,

petitioner contends, the stop was unlawful.

(Cv. Doc. #1, p. 21.)

Trial counsel moved to suppress all evidence as a result of
the traffic stop.

(Cr. Doc. #60.)

There was an evidentiary

hearing as a result of the motion (Cr. Doc. #78), and a Report and
Recommendation was filed recommending that petitioner’s motion to
suppress be denied (Cr. Doc. #87).

Petitioner’s counsel again

contested the traffic stop in an Objection to the Report and
Recommendation, claiming that stopping someone for driving less
than eighty miles an hour on I-75 is “rarely, if ever, standard
procedure” and that the Trooper who made the stop had been looking

Whenever the word “possession” has been used
in these instructions it includes constructive
as well as actual possession, and also joint
as well as sole possession.
(Cr. Doc. #129, pp. 7-8.)
- 12 -

for the vehicle.

(Cr. Doc. #89, p. 1.)

The motion to suppress

was ultimately denied and the Court determined that the traffic
stop was legal.

(Cr. Doc. #90.)

The denial of the motion to

suppress was affirmed by the Eleventh Circuit.
Young,

377

F.

App’x

965

(11th

Cir.

2010);

United States v.
(Cr.

Doc.

#162).

Petitioner’s claim is without merit as it is clear that trial
counsel did challenge the traffic stop that led to petitioner’s
arrest.

Petitioner’s assertion that a traffic stop for speeding

is unlawful absent proof of calibrated radar equipment is simply
incorrect.

State v. Allen, 978 So. 2d 254, 255 (Fla. 2d DCA 2008)

(stating that “police may stop a vehicle for a speeding violation
based

on

the

officer's

visual

or

aural

perceptions

and

that

verification of actual speed by the use of radar equipment or
clocking is not necessary to justify the stop”).

An attorney does

not provide ineffective assistance by failing to make an argument
that is without merit.
(d)

Failure to Challenge Validity of Detention (Issue
Four)

Petitioner asserts that trial counsel provided ineffective
assistance by failing to challenge the validity of the detention,
which was based only on the Trooper’s uncorroborated claim that
the vehicle smelled of marijuana.

(Cv. Doc. #1, pp. 21-22.)

As

with the traffic stop, counsel did challenge the detention of
petitioner in his motion to suppress and Objection to the Report

- 13 -

and Recommendation by arguing the detention was not warranted by
the

behavior

of

the

petitioner

or

Exantus,

and

that

“[t]he

unsubstantiated faint odor of marijuana should not open the door
to the type of investigation conducted.”

(Cr. Doc. #89, p. 7.)

The Court overruled counsel’s objection, and adopted the Report
and Recommendation (Cr. Doc. #90.)

The ruling was affirmed on

appeal, United States v. Young, 377 F. App’x 965 (11th Cir. 2010);
(Cr. Doc. #162).

There is no legal requirement for corroboration

of an officer’s testimony, and counsel is not required to make an
argument which lacks merit.

Petitioner’s claim of ineffective

assistance of counsel is without merit.
(e)

Failure

to

Challenge

Drug

Dog

Qualifications

(Issue Five)
Petitioner claims that his counsel was ineffective in failing
to evaluate the reliability or to challenge the qualifications of
the drug dog and that his right to confrontation was violated
because “the dog was not shown in the courtroom.”
p. 8.)

(Cv. Doc. #1,

Petitioner also asserts that the dog did not give a

positive alert to drugs, as shown by the videotape of the traffic
stop.

Petitioner claims that the fact that the dog did not give

a positive alert proves that there had not been a marijuana odor
emanating from the car.

(Cv. Doc. #1, pp. 22-23.)

The Trooper who stopped the vehicle stated that he smelled a
marijuana odor coming from the vehicle.

- 14 -

(Cr. Doc. #87, p. 3.)

Then, the dog was called and the officers testified that it gave
a positive alert to drugs.
claim of

no

positive

alert

(Cr. Doc. #87, p. 4.)
is

contradicted

by

Petitioner’s
the

Trooper’s

statement and testimony, which were found by this Court to be
credible.

(Cr. Doc. #87, pp. 10-11; Cr. Doc. #90.)

Regardless

of the dog alert, the Trooper’s testimony as to the odor of
marijuana was corroborated by the fact that marijuana was found in
the area that Hall and Exantus ran to before being apprehended.
(Cr. Doc. #60, p. 2.)

There was no deficient performance or

prejudice to petitioner.
(f)

Failure to Preserve Duress Issue (Issue Six)

Petitioner asserts that trial counsel was ineffective for
failing to prove that his confession was based on duress and was
therefore involuntary and failing to preserve this issue.
Doc. #1, p. 24.)

(Cv.

The record establishes the contrary.

Trial counsel moved to suppress the confession, stating that
it was involuntary and made as a result of coercion.
#60.)

(Cr. Doc.

This motion was denied after the evidentiary hearing.

Doc. #90.)

(Cr.

Petitioner raised the issue on appeal, and the Eleventh

Circuit Court of Appeals affirmed the voluntary confession and
rejected the coercion claim denial of the motion to suppress the
confession.

(Cr. Doc. #162.)

Petitioner cannot show ineffective

assistance of counsel.

- 15 -

(g)

Failure to Object to Destruction of Video Tape
(Issue Seven)

Petitioner claims that the Trooper took out portions of the
video that would have reflected that the stop and detention was
illegal.

Petitioner asserts that trial counsel was ineffective

for failing to object to the alteration of the videotape of the
traffic stop.

(Cv. Doc. #1, p. 25.)

There is no evidence to indicate that the video of the traffic
stop was altered or tampered with, as petitioner now asserts, and
petitioner presents none.

The videotape was filmed from Trooper

Merritt’s

arrived

vehicle,

which

Heinlein was writing the ticket.

on

the

scene

while

Trooper

(Cr. Doc. #78, p. 10.)

Trooper

Heinlein wrote the ticket after the event that petitioner claims
is missing from the tape, and so the tape would not show the
initial events of the traffic stop.

(Cr. Doc. #78, p. 57.)

Even

if the videotape captured that portion of the traffic stop, it
would not show when the Trooper claimed to smell marijuana.

The

videotape does not have sound and therefore would not be able to
show any of the Trooper’s statements.

(Cr. Doc. #78, p. 7.)

Additionally, it was petitioner who moved the video tape into
evidence (Cr. Doc. #157, p. 106.)

Petitioner has not established

any ineffective assistance of counsel in connection with this
claim.

- 16 -

(h)

Failure to Investigate and Call Witnesses (Issues
8 and 9)

Petitioner asserts that trial counsel was ineffective in
failing to investigate and call witnesses who were willing and
able to testify at trial.

Petitioner claims that counsel failed

to call his co-defendants and did not investigate the owner of the
vehicle.
of

one

(Cv. Doc. #1, pp. 25-26.)
of

the

passengers

of

the

Petitioner submits affidavits
vehicle,

petitioner’s girlfriend, Dianah Lassegue.

George

Hall,

and

Hall’s affidavit states

that: (1) the driver and passengers borrowed the vehicle and did
not open the trunk or have knowledge of the contents of the trunk;
(2) none of the occupants of the vehicle smoked marijuana and the
car did not smell of marijuana; (3) the driver was not speeding;
(4) the State Troopers “jumped” petitioner because petitioner
stated that he was going to call a lawyer after he heard one of
the Troopers say that petitioner and the other passengers “had to
be

some

dope

selling

[racial

slur],”

and

the

Troopers

took

petitioner’s cell phone and maced him; (5) petitioner did not say
there was cocaine in the trunk of the vehicle; and (6) the drug
dog did not attack the vehicle or lay down by the vehicle to
indicate a positive alert to drugs.
Petitioner’s

girlfriend’s

affidavit

(Cv. Doc. #1-5, p. 2.)
the

vehicle’s

owner is not herself, but her cousin, Thania Maglorie.

(Cv. Doc.

#1-5, p. 4.)

- 17 -

states

that

“Which witnesses, if any, to call, and when to call them, is
the epitome of a strategic decision, and it is one that we will
seldom, if ever, second guess.”
1512 (11th Cir. 1995).
significance.

Waters v. Thomas, 46 F.3d 1506,

Ms. Lassegue’s affidavit is without any

Defense counsel had stated in his opening statement

that the vehicle owned by Thania Magliore.

(Cr. Doc. #157, p.

65.)
There is no showing of insufficient assistance of counsel as
to this claim.
(i)

Inhibiting Right to Testify (Issue 10)

Petitioner asserts that trial counsel was ineffective by
preventing petitioner from testifying.

(Cv. Doc. #1, p. 26.)

Defense counsel carries the main responsibility for advising a
defendant

on

defendant.

his

right

to

testify;

the

decision

is

for

the

United States v. Teague, 953 F.2d 1525, 1533 (11th

Cir. 1992).

The record establishes that counsel gave petitioner

his advice and petitioner decided not to testify.

There is no

evidence that counsel prevented him from testifying.
advised petitioner of his right to testify:
THE COURT: All right.
Mr. Young, let me go over one other matter
with you right now, while we’re waiting for
the jury.
You have an absolute right to testify on your
own behalf, if you wish to testify. You also
have an absolute right not to testify, if you
do not wish to testify. The choice is yours,

- 18 -

The Court

and yours alone. Your attorney can give you
his advice, but you ultimately have to make
the decision as to whether you wish to testify
or not.
Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You don’t have to make that
decision right now. The government has to
present its case, and, after that, I’ll call
upon you and your attorney to proceed, if
there’s anything you wish to present.
So you don’t have to decide that now, but I
just want you to understand that you have
those rights.
THE DEFENDANT: I understand.
(Cr. Doc. #157, pp. 10-11.)

Petitioner later told the Court that

he did not wish to testify.

(Cr. Doc. #157, p. 189.)

It is clear

that petitioner was aware of his right to testify and there is no
evidence that trial counsel prevented petitioner from doing so.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #163) is DENIED on the merits for
the reasons set forth above.
2.

The Clerk of the Court shall enter judgment accordingly

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:

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A CERTIFICATE OF APPEALABILITY (COA) 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, 183 (2009).

“A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
showing, petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

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 were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations and internal quotation marks 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
of July, 2014.

Copies:
Petitioner
Counsel of Record

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30th

day