Curbelo v. United States of America
Filing
9
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. 2:09-cr-77-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 3/27/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IVAN CURBELO,
Plaintiff,
v.
Case No: 2:14-cv-94-FtM-29CM
Case No: 2:09-cr-77-FtM-29SPC
UNITED STATES OF AMERICA,
Defendant.
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.
557) 1 filed on February 14, 2014.
in Opposition (Cv. Doc. #7).
The government filed a Response
For the reasons set forth below,
petitioner’s motion is denied.
I.
On October 27, 2009, a federal grand jury returned a fivecount Indictment against eleven defendants.
(Cr. Doc. #104.)
Petitioner, Ivan Curbelo, and others were charged in Count I with
conspiring from April 2002 through October 27, 2009, to manufacture
1
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.”
and to possess with intent to distribute 1,000 or more marijuana
plants and to distribute and to possess with intent to distribute
100 or more kilograms of marijuana, in violation of 21 U.S.C. §§
841(a)(1),
(b)(1)(A)(vii),
(b)(1)(B)(vii)
and
846.
Count
V
charged petitioner and others with knowingly and intentionally
manufacturing
100
or
more
marijuana
plants
with
intent
to
distribute them on September 29, 2009, in violation of section
841(a)(1) and (b)(1)(B)(vii) and 18 U.S.C. § 2.
(Cr. Doc. #104.)
Petitioner was convicted by a jury of both counts.
#326.)
(Cr. Doc.
The Court sentenced petitioner to serve the mandatory
minimum term of imprisonment of ten years to be followed by five
years of supervised release.
(Cr. Doc. #420.)
Petitioner filed a direct appeal raising five arguments: 1)
the global-positioning-system (GPS) tracking evidence was obtained
in
violation
of
the
Fourth
Amendment;
2)
trial
counsel
was
ineffective for failing to move to suppress the GPS-tracking
evidence; 3) the evidence was insufficient to support a sentencing
enhancement for conspiracy to possess over 1,000 plants; 4) the
court
violated
the
Confrontation
Clause
by
admitting
the
translated transcripts; and 5) the court erred in not submitting
the forfeiture allegations to the jury.
and
sentence
were
affirmed.
(Cr.
Petitioner’s conviction
Doc.
#546.)
Petitioner’s
petition for writ of certiorari to the United States Court of
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Appeals for the Eleventh Circuit was denied.
Curbelo v. United
States, 134 S. Ct. 962, (U.S. 2014).
Petitioner’s timely § 2255 motion raises the same five grounds
for relief that were raised on direct appeal.
Doc. #557.)
(Cv. Doc. #1; Cr.
The United States argues that petitioner’s challenge
is not cognizable; all of petitioner’s claims have been previously
resolved by the Eleventh Circuit Court of Appeals; petitioner is
procedurally defaulted on his claims; and the petition lacks
substantive argument and otherwise fails on the merits.
(Cv. Doc.
#7.)
II.
Petitioner is not entitled to an evidentiary hearing.
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) (citation omitted).
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.”
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Id. at 715.
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, he has not established that either trial
counsel provided constitutionally ineffective assistance, or that
he was otherwise deprived of a constitutional right.
Therefore,
the Court finds that an evidentiary hearing is not warranted in
this case.
III.
As noted above, the petition raises the same five grounds
that were raised and addressed on direct appeal.
In fact, the
“argument” section of the petition (Cv. Doc. #1, pp. 5-18) is
identical to the argument section submitted in petitioner’s direct
appeal. 2
Reply Brief of Appellant, Ivan Curbelo, United States v.
Curbelo, 726 F.3d 1260 (11th Cir. 2013) (No. 10-14665-E), 2012 WL
4321851 (C.A. 11).
The Eleventh Circuit rejected petitioner’s arguments with
regard to Counts I, III, IV, and V.
F.3d 1260 (11th Cir. 2013).
found:
United States v. Curbelo, 726
Specifically, the Eleventh Circuit
1) the district court did not err when it allowed the
Government to present GPS-tracking evidence because petitioner
waived his suppression claim by failing to file a motion to
suppress, id. at 1266-67; 2) there was sufficient evidence to
2
However, the Court notes that the discussion of Count V in
the petition was cut short. (Cv. Doc. #1, p. 18.)
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support petitioner’s sentence enhancement in Count I, id. at 1269;
3) the
admission of the transcripts was proper and did not violate
the Confrontation Clause, id. at 1271-76; and 4) the petitioner
was not entitled to have the forfeiture allegations submitted to
a jury, id. at 1276-78.
As to Count II, the Eleventh Circuit
declined consideration of petitioner’s ineffective assistance of
counsel claim based on the record before it.
Id. at 1267.
This Court “is not required to reconsider claims of error
that were raised and disposed of on direct appeal.”
v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000).
United States
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.
Therefore, petitioner may not now relitigate the
claims that were raised and resolved in his direct appeal.
IV.
The only issue remaining for this Court’s consideration is
whether petitioner’s trial counsel was ineffective for failing to
move to suppress the GPS-tracking evidence.
For the reasons set
forth below, the Court finds that petitioner was not denied his
constitutional right to effective assistance of counsel.
A.
Ineffective Assistance of Counsel 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
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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).
B.
Application of Principles
Petitioner asserts his counsel’s performance was ineffective
because he failed to file a motion to suppress the GPS-tracking
evidence.
Petitioner relies on the Supreme Court’s holding that
the attachment of a GPS-tracking device to a vehicle is a search
within the meaning of the Fourth Amendment.
United States v.
Jones, 132 S. Ct. 945 (2012).
Here, the record shows that in the course of investigating
this case, agents placed GPS-tracking devices on vehicles used by
two co-defendants.
(Cr. Doc. #446, pp. 72-73.)
One of the GPS-
tracking devices was installed on May 23, 2008.
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(Id.)
The
investigators did not obtain a warrant before installing the
tracking devices.
The agents also conducted GPS-tracking of
unspecified cellular phones.
(Id. at p. 48.)
The investigation
lasted from early January 2008 through late September 2009.
at p. 107.)
(Id.
Petitioner was arrested on September 29, 2009 and
found guilty of both counts on May 28, 2010.
(Cr. Doc. #19; Cr.
Doc. #326.)
Circuit precedent during the relevant time period provided
that law enforcement only needed reasonable suspicion to support
lawful installation of a GPS-tracking device.
See United States
v. Michael, 645 F.2d 252, 257, 259 (5th Cir. 1981). 3
Petitioner
does not argue the agents lacked reasonable suspicion to install
the GPS-tracking devices.
Therefore, even if Jones would have
rendered the warrantless searches unreasonable, the agents’ goodfaith
reliance
upon
Michael
rendered
exclusion
inappropriate
because, at the time of the GPS searches, Michael was binding
precedent
that
clearly
dictated
warrantless GPS surveillance.
the
constitutionality
of
The Supreme Court has held that
searches conducted in objectively reasonable reliance on binding
appellate precedent are not subject to the exclusionary rule,
because “suppression would do nothing to deter police misconduct
3
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), adopted as binding precedent all decisions of the
former Fifth Circuit handed down before October 1, 1981.
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in those circumstances.”
Davis v. United States, 564 U.S. 229,
(2011); United States v. Lebowitz, 676 F.3d 1000, 1010 (11th Cir.
2012) (evidence seized in good-faith reliance on Eleventh Circuit
precedent
(later
overturned
exclusion of that evidence).
by
the
Supreme
Court)
precluded
Thus, counsel’s assessment of the
law at the time was correct, and he was not constitutionally
ineffective for his decision not to challenge the GPS-tracking
evidence.
A change of law does not entitle a habeas petitioner
to relief.
E.g., McCarthan v. Dir. of Goodwill Indus.-Suncoast,
Inc., ___ F.3d ___, 2017 WL 977029 (11th Cir. Mar. 14, 2017).
In addition, petitioner does not allege that his own cellular
phone was monitored or that he owned or possessed the vehicles on
which the GPS-tracking devices were placed.
Rather, the record
shows the vehicles that were tracked belonged to co-defendants.
(Cr. Doc. #446, pp. 72-73.)
record
which
defendants’
Furthermore, it is unclear from the
cellular
telephones
were
tracked.
Consequently, there is no evidence that petitioner’s cellular
telephone or vehicle was monitored by GPS-tracking devices and
therefore no evidence that petitioner would have “standing” to
raise challenges.
Petitioner’s counsel had no basis for filing a suppression
motion.
An attorney is not ineffective for failing to raise or
preserve a meritless issue.
Winfield, 960 F.2d at 974.
Because
petitioner has failed to make the required showing of either
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deficient performance or prejudice, Count II 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. #557) 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
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).
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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 March, 2017.
Copies:
Counsel of Record
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27th
day
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