Beltran v. United States of America
OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:08-cr-88-FTM-29DNF), 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 4/28/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:13-CV-391-FTM-29DNF
Case No: 2:08-CR-88-FTM-29DNF
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter comes before the Court on petitioner’s pro se
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.
#144) 1 and Memorandum of Law (Cv. Doc. #2).
The government filed
petitioner filed a Reply (Cv. Doc. #11).
For the reasons set
forth below, the motion is denied.
On June 4, 2008, a Federal Grand Jury in Fort Myers, Florida,
returned a three count Indictment against Gurmercindo Beltran
(petitioner or Beltran) charging him with two counts of possession
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.”
with intent to distribute a detectable amount of cocaine base, and
one count of possession with intent to distribute a detectable
amount of cocaine. (Cr. Doc. #1.)
A jury returned verdicts of
guilty on all counts on November 19, 2008. (Cr. Doc. #62.) On
February 17, 2009, the Court sentenced petitioner to concurrent
terms of 180 months imprisonment as a career offender, followed by
concurrent three-year terms of supervised release. (Cr. Doc. #69.)
convictions and sentences, alleging the trial court erred by: (1)
denying his motion to suppress evidence and statements; (2) failing
to order a directed verdict on all counts; (3) failing to sever
Count Three from the other two counts; and (4) enhancing his
sentence as a Career Criminal based on the non-qualifying predicate
offense of resisting an officer with violence.
Circuit Court of Appeals affirmed petitioner’s convictions and
United States v. Beltran, 367 F. App’x 984 (11th Cir.
2010); (Cr. Doc. #92.)
Petitioner filed a petition for certiorari with the United
States Supreme Court.
The Supreme Court granted certiorari,
vacated the judgment, and remanded to the Eleventh Circuit for
further consideration in light of Johnson v. United States, 559
U.S. 133 (2011).
Beltran v. United States, 131 S. Ct. 899 (2011).
The Eleventh Circuit then remanded the case to the district court
to consider the enhancement anew in light of Johnson.
States v. Beltran, 444 F. App’x 398 (11th Cir. 2011).
On remand, the district court found that petitioner had two
other convictions which qualified as career offender predicate
offenses, and re-imposed the same sentence. (Cr. Doc. #126.)
Petitioner filed a direct appeal of the amended judgment (Cr. Doc.
#127), and on September 12, 2012, the Eleventh Circuit granted
summary affirmance (Cr. Doc. #143).
The Supreme Court denied
Beltran v. United States, 133 S. Ct. 1293 (2013).
Petitioner now alleges in his § 2255 petition that he received
ineffective assistance because his trial counsel failed to (1)
challenge the impartiality of the grand jury proceeding; and (2)
investigate and discover perjured testimony before the grand and
petit juries. (Cv. Doc. #2.)
The Court, after careful review,
finds no basis for relief.
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
Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.
2002) (internal quotation marks and citation omitted).
Hernandez v. United States, 778 F.3d 1230, 1232 (11th Cir. 2015).
However, a “district court is not required to hold an evidentiary
contradicted by the record, or the claims are patently frivolous.”
Aron, 291 F.3d at 715; see also Gordon v. United States, 518 F.3d
1291, 1301 (11th Cir. 2008); Winthrop-Redin v. United States, 767
F.3d 1210 (11th Cir. 2014).
The record in this case, when viewed
petitioner received effective assistance of counsel.
the Court finds that an evidentiary hearing is not warranted.
III. Ineffective Assistance of Counsel Claims
A. General 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
proceeding would have been different.
Hinton v. Alabama, 134 S.
Ct. 1081, 1087-88 (2014) (citing Strickland v. Washington, 466
U.S. 668, 687, 694 (1984) and Padilla v. Kentucky, 559 U.S. 356,
reasonableness under prevailing professional norms considering all
the circumstances. Hinton, 134 S. Ct. at 1088 (citations omitted).
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 . . . .”
Roe v. Flores-Ortega, 528 U.S. 470,
deferential, and the Court adheres to a strong presumption that
professional assistance. Strickland, 466 U.S. at 689-90.
objectively unreasonable, the performance must be such that no
competent counsel would have taken the action.
Rose v. McNeil,
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.
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992);
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
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
Rather, the petitioner must show that there is a
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.”
Hinton, 134 S. Ct. at 1089 (quoting Strickland, 466 U.S. at 694)
(internal quotation marks and citations omitted).
B. Failure to Challenge Impartiality of Grand Juror
The record establishes that a grand jury witness was asked
how exactly the drug detection dog alerted in this case.
“The K-9 are trained – I am not a K-9 handler
so I can’t say exactly how their training is.
The way I understand
from our K-9 handlers is if they show a reaction – some dogs assert
by either sitting down and refusing to move or some dogs will start
actually clawing at the doors of the vehicle.
I was not there
present so I can’t really say how that dog reacts, sir.”
A grand juror then stated “I’ve trained dogs for many
years. Each dog has its own signal when it reacts, specific to
that dog.” (Id.)
Petitioner claims that this statement by the grand juror is
narcotics, resulting in the failure to provide an impartial grand
receiving the grand jury transcript, had the obligation to seek a
hearing to question the grand juror about his statements in order
to uncover any preconceptions. (Cv. Doc. #2.)
The failure of his
attorney to do so, petitioner argues, constitutes ineffective
assistance of counsel.
The Court disagrees.
In the federal criminal justice system, a grand jury serves
two important functions.
“The grand jury's historic functions
survive to this day. Its responsibilities continue to include both
the determination whether there is probable cause to believe a
crime has been committed and the protection of citizens against
unfounded criminal prosecutions.”
U.S. 338, 343 (1974).
United States v. Calandra, 414
The grand jury is “accorded wide latitude
to inquire into violations of criminal law.”
A grand jury’s
investigation may consider tips, rumors, evidence proffered by the
Calandra, 414 U.S. at 344 (citing Costello v. United States, 350
U.S.359, 362 (1956)).
There was simply no basis for a reasonable defense attorney
to believe a challenge to the Indictment, the grand juror, or the
grand jury proceedings was even arguably meritorious.
juror’s comment conveyed no suggestion of bias, and added nothing
beyond what the officer had testified.
Even if this was not so,
a grand jury can properly consider the “personal knowledge of the
Calandra, 414 U.S. at 344.
proceeding are considered harmless in light of the trial jury’s
United States v. Mechanik, 475 U.S. 66
(1986); Porter v. Wainwright, 805 F.2d 930 (11th Cir. 1986).
Petitioner’s reliance on United States v. Maine Lobster Co.,
160 F. Supp. 122, 123 (D. Me. 1957) is misplaced.
In Maine Lobster
Co., the petitioner raised a challenge to the dismissal of a grand
juror on the sole basis that the juror was employed in the industry
being investigated by the grand jury.
The case said nothing about
comments made by a grand juror.
deprived him of fair grand jury proceeding is without merit.
Petitioner’s trial counsel had no legitimate basis to challenge
the grand jury proceedings, and was not ineffective for failing to
raise a meritless issue.
C. Failure to Investigate and Discover Officer Blake’s
Petitioner’s second argument is that Officer Blake falsely
testified before the grand and petit juries that petitioner was
read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and
because he failed to challenge Officer Blake’s testimony before
the grand and petit juries. (Cv. Doc #11, p. 3.)
review, the Court finds Petitioner’s argument is without merit.
It is undisputed that petitioner was not read his Miranda
warnings at the scene of his arrest during his questioning by
Deputy Partin on March 12, 2008.
In fact, a suppression hearing
was held on September 8, 2008, (Cr. Doc. #30), and the Court
excluded evidence of questions by Deputy Partin and answers by
petitioner regarding the possession of a set of keys. (Cr. Doc.
While petitioner claims that Officer Blake testified before
the grand and petit juries that petitioner was read his Miranda
Warnings on March 12, 2008, the record establishes that Officer
Blake testified he administered Miranda warnings on March 13, 2008,
at the Collier County Sheriff’s Office substation in North Naples.
Officer Blake did not claim to have done so at the scene of the
arrest. (Cr. Doc. #84, p. 257.)
As a result, there was no basis
for trial counsel to challenge the accuracy of Officer Blake’s
testimony, and no ineffective assistance of counsel in failing to
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. #144) is DENIED.
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:
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
28 U.S.C. § 2253(c)(2).
To make such a
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).
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
Counsel of record
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