Powner v. United States of America
Filing
21
OPINION AND ORDER denying as moot 20 Motion for discovery and Production of documents; 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. 2:09-cr-75-FTM-29UAM), 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 9/22/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT POWNER,
Petitioner,
v.
Case No: 2:13-cv-515-FtM-29CM
Case No. 2:09-CR-75-FTM-29UAM
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.
#501). 1
The government filed a Response in Opposition to Motion
(Cv. Doc. #9).
The petitioner filed a Reply (Cv. Doc. #12).
Petitioner also filed a Motion to Amend (Cv. Doc. #15) on
September 2, 2015 which was granted (Cv. Doc. #17).
Petitioner
filed a Supplement Pleading to Motion Filed Under 28 U.S.C. Section
2255 to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (Cv. Doc. #18) on December 28, 2015. No response
was filed.
This matter is ripe for review.
The 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.”
1
I.
On September 16, 2009, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #3) charging
nine defendants with various drug offenses.
Petitioner Robert
Powner was charged only in Count One, which alleged conspiracy to
possess
with
intent
to
distribute
Oxycodone,
Methadone,
and
Alprazolam in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(C),
§ 846, and 18 U.S.C. § 2.
The Court granted in part and denied
in part a motion to suppress evidence, United States v. Bergin,
732
F.
Supp.
2d
1235
(M.D.
Fla.
2010),
and
petitioner
was
ultimately convicted by a jury (Cr. Doc. #414) of the conspiracy
count.
The Court sentenced petitioner to 136 months imprisonment,
to be followed by a three year term of supervised release.
(Cr.
Docs. #431, #432.)
Petitioner filed a direct appeal asserting only that the
district
court
should
have
suppressed
both
his
post-arrest
statements and the trial testimony of his co-defendant as fruits
of an illegal search.
United States v. Powner, 481 F. App’x 529,
530 (11th Cir. 2012).
Petitioner’s conviction and sentence were
affirmed.
grounds
Id.
for
Petitioner’s timely § 2255 motion, raises eleven
relief
alleging
numerous
grounds
of
ineffective
assistance of counsel and various trial court errors.
The
United
States
argues
that
petitioner
procedurally
defaulted on his claims and that petitioner’s challenge is not
- 2 -
cognizable in this § 2255 proceeding; and that in any event
petitioner
is
not
entitled
to
relief
because
unsubstantiated, unsupported, and baseless.
his
claims
are
(Cv. Doc. #9.)
II.
As
an
initial
matter,
evidentiary hearing.
petitioner
is
not
entitled
to
an
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
(internal
(11th
Cir.
omitted).
2002)
quotation
marks
and
citation
See also Winthrop-Redin v. United States, 767 F.3d
1210, 1215-16 (11th Cir. 2014).
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. 2008).
when
the
facts
petitioner,
the
are
viewed
record
in
the
establishes
light
that
most
Here, even
favorable
petitioner
to
received
effective assistance of counsel and there was no trial court error.
Therefore, the Court finds that an evidentiary hearing is not
warranted in this case.
- 3 -
III.
The Court will set forth the general legal principles and
then apply them to the facts of the case.
A)
Standard of Review
Title 28 U.S.C. § 2255 provides federal prisoners with an
avenue for relief under limited circumstances:
A prisoner in custody under sentence of a court
established by Act of Congress 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, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject
to attack, may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a) (2015).
If a court finds a claim under § 2255
to be valid, the court “shall vacate and set the judgment aside
and shall discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate.”
§
2255(b).
To
obtain
this
relief
on
collateral
Id. at
review,
a
petitioner must clear a significantly higher hurdle than would
exist on direct appeal.
See United States v. Frady, 456 U.S. 152,
166 (1982) (rejecting the plain error standard as not sufficiently
deferential to a final judgment).
B)
Ineffective Assistance of Counsel
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
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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 . . .”
U.S.
470,
477
(2000)
(quoting
Roe v. Flores-Ortega, 528
Strickland,
(internal quotation marks omitted).
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.
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.
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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
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.”
Hinton, 134 S. Ct. at 1089 (quoting Strickland, 466 U.S. at 694)
(internal quotation marks and citations omitted).
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).
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C)
Procedural Default
A claim that was available but was not raised in the district
court or on appeal is procedurally defaulted from consideration on
collateral review.
McCoy v. United States, 266 F.3d 1245, 1258–
59 (11th Cir. 2001); Bousley v. United States, 523 U.S. 614, 622
(1998).
A petitioner may avoid a procedural default either by
showing (1) cause for and prejudice from the default, or (2) that
“a
constitutional
violation
has
probably
resulted
conviction of one who is actually innocent.”
in
the
Lynn v. United
States, 365 F.3d 1225, 1234 (11th Cir. 2004) (quoting Murray v.
Carrier, 477 U.S. 478, 496 (1986)).
To show cause for not raising a claim, a petitioner must show
that “some objective factor external to the defense” which impeded
his ability to raise the claim previously.
n. 20.
Lynn, 365 F.3d at 1235
To show prejudice, a petitioner must demonstrate that
“errors at trial actually and substantially disadvantaged his
defense so that he was denied fundamental fairness.”
Wright v.
Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations
omitted).
To
establish
demonstrate
factual
actual
innocence,
innocence,
not
Bousley, 523 U.S. at 623–24.
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mere
a
legal
petitioner
must
insufficiency.
IV.
Many of the issues raised by petitioner relate to suppression
motions filed by petitioner’s attorney and his co-defendant.
The
court file reflects the following:
Attorney
Richard
D.
Lakeman
was
represent petitioner (Cr. Doc. #34).
initially
appointed
to
Mr. Lakeman filed a motion
for court authorization of investigative costs in order to obtain
the services of private investigator John J. Valenza (Cr. Doc.
#84).
This motion was granted (Cr. Doc. #87.)
Co-defendant
Jason
Bergin
filed
a
motion
to
suppress
evidence, and Mr. Lakeman filed a motion to adopt the motion to
suppress, as supplemented by additional facts and case law (Cr.
Doc. #110).
On February 2 and 5, 2010, an evidentiary hearing was
held
the
before
assigned
magistrate
suppress (Cr. Docs. #186, #188).
judge
on
the
motions
to
Petitioner testified at the
hearing both as to his standing and the merits of the motion.
Mr.
Lakeman filed a Supplemental Memorandum (Cr. Doc. #169) as to
petitioner’s standing and an Amended Supplemental Memorandum (Cr.
Doc. #194).
On March 26, 2010, a Report and Recommendation (Cr. Doc. #205)
was filed by the assigned magistrate judge recommending that the
motions to suppress be denied.
Objections to the Report and
Recommendation were filed by Mr. Lakeman (Cr. Doc. #220) and other
defendants.
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On May 20, 2010, petitioner filed a pro se Motion to Dismiss
Counsel, Appoint New Counsel and be Named as Co-Counsel (Cr. Doc.
#248) and Mr. Lakeman filed an Emergency Motion to Withdraw as
Attorney for Defendant (Cr. Doc. #253.)
the
magistrate
judge,
who
found
A hearing was held before
that
the
attorney-client
relationship was irretrievably broken, denied petitioner’s pro se
motion, and granted counsel’s emergency motion (Cr. Doc. #256.)
CJA
Panel
attorney
David
Brener
was
petitioner (Cr. Docs. #257, #259, #262.)
appointed
to
represent
Mr. Brener filed a Motion
to Appoint Investigator to Aid Defense (Cr. Doc. #267) requesting
the appointment of Tropical Investigations, LLC.
This was denied
without prejudice because an investigator had been appointed at
the request of Mr. Lakeman (Cr. Doc. #287.)
Mr. Brener filed a Motion to Suppress Statements (Doc. #268).
At a July 12, 2010 status conference, the district court scheduled
oral argument on the pending motions to suppress and objections to
the Report and Recommendation for July 21, 2010 (Cr. Docs. #279,
281.)
On July 19, 2010, Mr. Brener filed a Motion for Protection
due to a schedule conflict (Cr. Doc. #285).
The Court denied the
motion to protect as to the scheduled oral argument, but allowed
Mr. Brener to arrange for other counsel to appear for him or agreed
to dispense with oral argument on behalf of the motion (Cr. Doc.
#286).
- 9 -
The district court heard oral argument on July 21, 2010 on
the pending motion to suppress and objections.
No defendant,
including petitioner, was present for the oral argument, but
petitioner was represented by attorney Thomas DeMine, law partner
for Mr. Brener.
On August 6, 2010, the district court issued an
Opinion and Order (Cr. Doc. #300) accepting in part and rejecting
in
part
the
suppress.
Report
and
Recommendation
as
to
the
motions
to
The district court also denied petitioner’s Motion to
Suppress Statements (Cr. Doc. #301.)
V.
A) Ground One
In ground one petitioner asserts that Mr. Lakeman provided
ineffective
assistance
of
counsel
by:
(a)
failing
to
obtain
adequate investigative services, but rather retaining the services
of
an
investigator
prohibited
him
who
from
was
being
performing
treated
his
for
cancer,
investigative
which
duties
effectively; (b) failing to act on information petitioner provided
him which would have made it more apparent to the Court at the
suppression hearing that there truly could not have been any
inevitable discovery of petitioner absent the illegal search; (c)
instructing petitioner to withhold information which could have
further
gone
to
credibility
issues;
(d)
failing
to
provide
petitioner with Jencks Act material in a timely manner even though
it contained critical information which would have been useful at
- 10 -
the suppression hearing; and (e) failing to prepare and make a
serious attempt at the suppression hearing because counsel told
petitioner he had no standing.
First, petitioner claims counsel was ineffective for failing
to
obtain
adequate
investigative
services.
Specifically,
petitioner asserts that Mr. Lakeman failed to provide adequate
investigative
services
by
retaining
an
investigator
who
was
suffering from and being treated for cancer, which prohibited him
from performing his investigative duties effectively.
elaborates
on
this
claim
in
his
Reply
brief.
Petitioner
(Doc.
#12.)
Petitioner claims that he informed Mr. Lakeman of a number of
inconsistencies in statements and spoke with the investigator on
at least two occasions requesting that he interview a specific
witness and obtain certain evidence.
According to petitioner the
investigator and Mr. Lakeman ignored his requests.
Petitioner
asserts that “although the issues which could have been resolved
by having a more active and more thorough investigative service
can not [sic] really be determined, it is a least believeable [sic]
that some of the credibility issues would have been resolved in
[his] favor.”
(Doc. #12, p. 3.)
In Strickland, the Court explained how a court should evaluate
a
claim
that
investigate.
counsel
had
been
466 U.S. at 690–91.
ineffective
in
failing
to
“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible
- 11 -
options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the
limitations on investigation.
In other words, counsel has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.”
Id. “In any
ineffectiveness case, a particular decision not to investigate
must
be
directly
assessed
for
reasonableness
in
all
the
circumstances, applying a heavy measure of deference to counsel’s
judgments.”
Id. at 691.
The reasonableness of investigation
decisions “critically” depends on information that the defendant
supplies and the informed legal choices that he makes.
Id. “For
example, when the facts that support a certain potential line of
defense
are
generally
known
to
counsel
because
of
what
the
defendant has said, the need for further investigation may be
considerably diminished or eliminated altogether.”
Petitioner’s
claim
that
counsel
failed
Id.
to
adequately
investigate is insufficient to comport with the strong presumption
of reasonableness and degree of deference extended to his counsel.
The basis for petitioner’s claim is that his counsel did not
investigate certain information given to him by petitioner.
The
record shows that Mr. Lakeman used the services of a private
investigator to assist in interviewing witnesses and reviewing
discovery (Cr. Doc. #84).
Petitioner has failed to establish that
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his counsel’s decision to investigate some areas while not others
was not strategic or tactical as allowed under Strickland.
In
addition, petitioner has failed to allege how he was prejudiced by
Mr. Lakeman’s failure to investigate these areas of inquiry.
Therefore, the Court finds that Mr. Lakeman’s decision not to
investigate the inquiries made by petitioner was reasonable under
the circumstances.
Petitioner provides no factual support for the remaining
claims of ineffective assistance of counsel.
Petitioner does not
state
to
what
information
his
counsel
failed
act
upon,
what
information he was instructed to withhold from the Court, what
Jencks Act material he should have been provided, or how his
counsel failed to properly prepare for the suppression hearing.
Moreover, petitioner does not allege how any of his claims would
have changed the outcome of his case.
Such conclusory allegations
prove neither deficient performance nor prejudice.
failure
to
make
the
required
showing
of
Petitioner’s
either
deficient
performance, or sufficient prejudice, defeats the ineffectiveness
claims.
B)
Accordingly, ground one is denied.
Ground Two
In ground two, petitioner asserts that the government either
through careful design or deliberate indifference provided the
Court with false information.
Specifically, petitioner attacks
the credibility of detectives Nolen and Baginski’s testimony.
- 13 -
This
claim
is
procedurally
defaulted
and
petitioner
has
failed to show the presence of any exception for the default.
Alternatively, if not defaulted, the claim is without merit.
As
recognized
in
United
States
v.
Ramirez-Chilel,
“[c]redibility determinations are typically the province of the
fact
finder
because
the
fact
finder
personally
observes
the
testimony and is thus in a better position than a reviewing court
to assess the credibility of witnesses.”
Cir. 2002) (citation omitted).
289 F.3d 744, 749 (11th
It is well established that “a
‘trial judge’s . . . choice of whom to believe is conclusive . .
. unless the judge credits exceedingly improbable testimony.” ’
Id.
In the instant case, the Court’s understanding of the facts
is not “unbelievable,” and it conducted a proper credibility
determination.
Accordingly, ground two is denied.
C) Ground Three
In ground three, petitioner asserts the trial court violated
petitioner’s due process rights by holding oral arguments on July
21, 2010, without petitioner or his attorney being present and
referring to the hearing at least four times in an Opinion and
Order.
This
claim
is
procedurally
defaulted
and
petitioner
has
failed to show the presence of any exception for the default.
Alternatively, if not defaulted, the claim is without merit.
Federal Rule of Criminal Procedure 43 identifies certain
- 14 -
stages of a criminal prosecution at which a defendant must be
present
and
requirement.
also
which
proceedings
are
See Fed. R. Crim. P. 43(b).
exempt
from
this
As relevant here, Rule
43(b)(3) provides that a defendant need not be present at a
“proceeding [that] involves only a conference or hearing on a
question of law.”
This exception encompasses a hearing on a pre-
trial motion to suppress.
Rule 43 does not require a defendant to be present at a
pretrial hearing involving only oral argument, and the Due Process
Clause requires no more.
522,
526
(1985)
See United States v. Gagnon, 470 U.S.
(explaining
that
due
process
concerns
are
implicated “whenever the defendant’s presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge . . . and to the extent that a fair and
just hearing would be thwarted by his absence, and to that extent
only”).
Petitioner’s absence from the pretrial hearing did not
deprive him of any constitutional right.
It did not detract from
his defense or in any way affect the fairness of his trial.
Therefore, petitioner’s claim is without merit.
Accordingly,
ground three is denied.
D) Ground Four
In ground four, petitioner asserts that Mr. Brener provided
ineffective
assistance
of
counsel
when
he
failed
to
advise
petitioner of the oral argument and failed to attend the oral
- 15 -
argument.
As discussed above, it was not required that petitioner be
present at the motion to suppress hearing.
Therefore, counsel was
not ineffective for failing to notify petitioner about the hearing.
Moreover, counsel properly filed a Motion for Protection informing
the Court of his scheduling conflict.
(Cr. Doc. #285.)
The Court
allowed Mr. Brener to arrange for other counsel to appear for him
or agreed to dispense with oral argument on behalf of petitioner’s
motion (Cr. Doc. #286).
As a result, petitioner was represented
by attorney Thomas DeMine, law partner for Mr. Brener during the
hearing.
Therefore, it was not unreasonable for Mr. Brener not
to attend the oral argument.
Accordingly, ground four is denied.
E) Ground Five
In ground five, petitioner asserts that Mr. Brener provided
ineffective assistance of counsel at the July 21, 2010 hearing
because the attorney who attended was ill prepared to properly
argue the motion to suppress.
Upon review of the record, the
Court finds that Mr. DeMine’s representation during the hearing
was reasonable.
In addition, petitioner has failed to show any
prejudice resulting in Mr. DeMine’s representation.
Accordingly,
ground five is denied.
F) Ground Six
In ground six, petitioner asserts the trial court erred in
its
credibility
finding
by
failing
- 16 -
to
consider
obviously
untruthful statements made by four police officers, and being
biased against petitioner.
This
claim
is
procedurally
defaulted
and
petitioner
has
failed to show the presence of any exception for the default.
Alternatively, if not defaulted, the claim is without merit.
As discussed above, credibility determinations made by the
trial judge are conclusive unless exceedingly improbable.
Ramirez-Chilel, 289 F.3d at 749.
See
In the instant case, the Court’s
understanding of the facts is not “unbelievable,” and it conducted
a proper credibility determination.
Accordingly, ground six is
denied.
G) Ground Seven
In ground seven, petitioner asserts the trial court erred by
failing
to
suppress
the
actual
prescriptions
as
well
as
the
testimony of the pharmacists in violation of the Fourth Amendment.
This
claim
is
procedurally
defaulted
and
petitioner
has
failed to show the presence of any exception for the default.
Alternatively, if not defaulted, the claim is without merit.
This
issue was properly addressed in the Court’s August 6, 2010 Order
granting in part and denying in part the petitioner’s Motion to
Suppress Evidence.
(Cr. Doc. #300.)
The record establishes that
there was no error in the Court’s decisions.
seven is denied.
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Accordingly, ground
H) Ground Eight
In ground eight, petitioner asserts the trial court erred in
failing to suppress the post-arrest statement petitioner made to
Detective Baginski.
Petitioner raised this ground on direct appeal.
Doc. 489.)
(See Cr.
This Court “is not required to reconsider claims of
error that were raised and disposed of on direct appeal.”
United
States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000).
If a
claim has previously been raised on direct appeal and decided
adversely to a defendant, it cannot be relitigated in a collateral
attack under § 2255.
Id.
and
defendant’s
resolved
in
a
As a result, claims that were raised
direct
appeal
will
not
be
reconsidered by the Court.
The Eleventh Circuit Court of Appeals concluded that that
petitioner’s post-arrest statements were sufficiently attenuated
from the unlawful search and seizure.
(Id.)
Consequently, the
Court will not reconsider this ground.
Accordingly, ground eight
is denied.
I) Ground Nine
In ground nine, petitioner asserts the trial court erred by
failing to allow the jury to determine the quantity of drugs
involved because the amount of drugs affected the Sentencing
Guideline range.
In support of this ground petitioner relies on
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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In Apprendi, the
Supreme
Court
held
that
any
fact
that
increases
the
maximum
sentence is also an element of an offense, and must be submitted
to a jury to be proven beyond a reasonable doubt.
Jeanty v.
Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014).
This
claim
is
procedurally
defaulted
and
petitioner
has
failed to show the presence of any exception for the default.
Alternatively, if not defaulted, the claim is without merit.
Apprendi doesn’t apply because only applies to statutory maxs
not guideline increases.
It was 20 years for any amount of drug
and so no jury fact finding.
Petitioner admits that he was sentenced below guideline range
(Doc. #12, p. 12).
possess
with
intent
Petitioner was charged with conspiracy to
to
distribute
and
distribute
oxycodone,
Methadone, and Alprazolam, in violation of 21 U.S.C. §§ 846 and
841 (b)(1)(C).
Under 21 U.S.C. § 841(b)(1)(C), the statutory
maximum for petitioner’s crime is twenty (20) years imprisonment.
Petitioner was sentenced to 136 months of imprisonment (Cr. Doc.
#468, pp. 5, 35.)
Therefore, the sentence petitioner received on
count one was not in excess of the statutory maximum sentence for
his crime.
Consequently, Apprendi does not apply in the instant
case and petitioner’s claim is without merit.
Accordingly, ground
nine is denied.
J) Ground Ten
In ground ten, petitioner asserts he received ineffective
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assistance by appellate counsel Scott Robbins for refusing to raise
any of the grounds raised by petitioner in this § 2255 motion on
appeal.
The Eleventh Circuit has held that appellate counsel is not
required to raise every non-frivolous issue, even ones that may
have been meritorious, noting that “it is difficult for a defendant
to show his counsel was ineffective for failing to raise certain
issues on appeal, particularly if counsel did present other strong
issues.”
Toepfer v. United States, 518 F. App’x 834, 841–42 (11th
Cir. 2013), cert. denied,
U.S.
, 134 S. Ct. 659 (2013)
(citations and quotations omitted).
To establish prejudice in
this context, a movant must show that “the neglected claim would
have a reasonable probability of success on appeal.”
Heath v.
Jones, 941 F.2d 1126, 1131 (11th Cir. 1991).
As discussed above, all of the grounds raised in the instant
§ 2255 motion are without merit.
Therefore, the Court cannot
conclude that appellate counsel’s performance was unreasonable or
that
petitioner
was
prejudiced.
Accordingly,
ground
ten
is
denied.
K) Ground Eleven
In ground eleven petitioner asserts that Detective Baginski
violated
police
procedures
during
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a
photo
lineup
which
the
government failed to disclose resulting in a Brady violation. 2
(Doc. #18; Doc. #18-1.)
Petitioner references facts contained in
a Motion to Suppress Evidence filed in a subsequent criminal case.
(See MDFL Case No. 2:12-cr-05-FTM-29CM, Doc. #136.)
Petitioner
asserts that had his counsel been informed of Detective Baginski’s
conduct, a different outcome could have occurred because Detective
Baginski’s credibility would have been impeached.
Petitioner also
asserts there is a “sincere possibility that she used the same
technique” when interviewing each of the pharmacists.
It is clear that Brady requires the prosecution to disclose
impeachment
evidence
for
cross-examination
States v. Bagley, 473 U.S. 667, 676 (1985).
purposes.
United
The Eleventh Circuit
summarized: To prevail on a Brady claim, the petitioner must
establish (1) the government possessed evidence favorable to him;
(2) the defendant did not possess the evidence and could not have
obtained
suppressed
material.
it
with
the
reasonable
favorable
Evidence
is
diligence;
evidence;
material
and
if
(3)
(4)
there
the
government
the
evidence
is
a
was
reasonable
probability that a different result would have occurred had the
evidence been disclosed.
In turn, a reasonable probability is
understood to be a probability sufficient to undermine confidence
2
Brady v. Maryland, 373 U.S. 83, 87 (1963).
- 21 -
in the outcome.
Lamarca v. Sec’y, Dep’t of Corr., 568 F.3d 929,
941 (11th Cir. 2009) (internal citations and quotations omitted).
Petitioner has failed to establish that there is a reasonable
probability that the outcome of the proceedings would have been
different.
Petitioner argues that had this information been made
available to his counsel detective Baginski’s credibility would
have been impeached which may have resulted in a different outcome
during
the
suppression
hearing.
Petitioner’s
claim
supported by the record and amounts to mere speculation.
is
not
A review
of the record shows the witness that was given the photo lineup
was not called as a witness in petitioner’s case.
Furthermore,
petitioner’s claim is based on unsupported allegations that were
included in a Motion to Suppress Evidence that was filed in a
criminal case not involving petitioner.
(See MDFL Case No. 2:12-
cr-05-FTM-29CM, Doc. #136.)
Moreover, there is no evidence of when, if ever, this alleged
improper photo lineup occurred or how it was favorable evidence
for petitioner.
Therefore, the Court cannot conclude that the
credibility determinations made by the Court in petitioner’s case
would
have
information
petitioner’s
been
different
to
petitioner.
allegations
had
the
government
Consequently,
are
without
merit.
disclosed
the
To
Court
the
this
finds
extent
petitioner attempts to incorporate an ineffective assistance of
- 22 -
counsel claim the Court also finds the claim fails for the reasons
discussed above.
Accordingly, ground eleven is denied.
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. #501) is DENIED.
2.
Petitioner’s Renewed Motion for Discovery and Production
of Documents (Doc. #20) is DENIED as moot.
3.
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
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
- 23 -
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 September, 2016.
Copies:
Petitioner
AUSA
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22nd
day
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