Rodriguez v. United States of America

Filing 10

OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) on all grounds. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:11-cr-68-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 2/24/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NADIA C. RODRIGUEZ,
Petitioner,
v.

Case No: 2:14-cv-301-FtM-29MRM
Case No. 2:11-cr-68-FTM-29DNF

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.
#247) 1 and Memorandum of Points and Authorities in Support (Cv.
Doc. #2), both filed on June 2, 2014.

The government filed a

Response in Opposition to Motion (Cv. Doc. #7) on August 1, 2014.
The petitioner filed a Traverse in Response to United States
Opposition (Cv. Doc. #8) on September 22, 2014.

For the reasons

set forth below, the Motion is due to be denied.

1The

Court will make references 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 July 20, 2011, a federal grand jury in Fort Myers, Florida
returned

a

fifteen-count

Indictment

(Cr.

Doc.

#1)

in

which

defendant Nadia C. Rodriguez (Rodriguez or petitioner) was charged
with conspiracy

to

possess

with

intent

to

distribute

and

to

distribute a quantity of Oxycodone (Count One), and possession
with intent to distribute Oxycodone (Count Two).
not named in the remaining counts.

Petitioner was

On January 9, 2012, petitioner

appeared before a magistrate judge and entered a plea of guilty to
both counts pursuant to a Plea Agreement.

(Cr. Docs. #145, 153.)

The guilty pleas were accepted, and petitioner was adjudicated
guilty on January 10, 2012.

(Cr. Doc. #156.)

On April 23, 2012, the Court sentenced petitioner to 108
months imprisonment on each count, to be served concurrently,
followed by 36 months of supervised release.
Judgment

(Cr.

Doc.

#203)

was

filed

on

(Cr. Doc. #202.)

April

24,

2012,

and

petitioner filed a Notice of Appeal (Cr. Doc. #207) on April 27,
2012.
On

appeal,

petitioner

argued

that

she

had

received

ineffective assistance of counsel during plea negotiations because
her trial counsel incorrectly told her that she was subject to a
statutory

mandatory

minimum

sentence.

The

Eleventh

Circuit

declined to address the issue on direct appeal, and affirmed the

- 2 -

conviction and sentence.
945 (11th Cir. 2013).

United States v. Rodriguez, 514 F. App’x

Petitioner sought rehearing and rehearing

en banc, which were denied on May 29, 2013.

(Cv. Doc. #1, p. 15.)

The government agrees that petitioner’s § 2255 motion was timely
filed.

(Cv. Doc. #7, p. 5.)
II.

Petitioner asserts four grounds for relief:

(1) Ground One:

Petitioner’s guilty pleas were not knowing and voluntary because
her counsel incorrectly told her she was facing a minimum mandatory
sentence of 60 months when in fact there was no mandatory minimum
sentence, and she was coerced into believing her guilty plea would
get her 60 months imprisonment, not the 108 months she received;
(2)

Ground

Two:

Petitioner’s

attorney

provided

ineffective

assistance by allowing an appeal waiver provision to be in the
Plea

Agreement

without

explaining

it

to

petitioner,

and

the

provision is invalid because of the misinformation provided by
petitioner’s attorney as to the mandatory minimum sentence; (3)
Ground

Three:

Petitioner’s

attorney

provided

ineffective

assistance by (a) not disputing the drug quantity attributable to
petitioner and failing to make a reasonable and logical argument
to mitigate petitioner’s drug quantity since she was incarcerated
for 13 months of the 16 month conspiracy, and (b) failing to
dispute the quantity of drugs as to Count II, resulting in a 108

- 3 -

month sentence without a sufficient supporting drug quantity; and
(4)

Ground

assistance

Four:
by

Petitioner’s

failing

to

seek

attorney
a

role

provided
reduction

ineffective
as

a

minor

participant in the offenses. 1
A. Evidentiary Hearing Standard
A district court shall hold an evidentiary hearing on a habeas
corpus 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).

However, a district court is not

required to hold an evidentiary hearing where the petitioner’s
allegations

are

patently

frivolous,

based

upon

unsupported

generalizations, or affirmatively contradicted by the record.
at 715.

Id.

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

(11th Cir. 2008) (a hearing is not necessarily required whenever
ineffective assistance of counsel is asserted).

To establish

The government asserts that Grounds Three and Four are
procedurally defaulted because petitioner did not raise these
issues on direct appeal.
(Cv. Doc. #7, pp. 5-7.)
The Court
disagrees.
Massaro v. United States, 538 U.S. 500, 509 (2003)
(the failure to raise ineffective assistance of counsel on direct
appeal does not bar the claim in a later collateral proceeding).
1

- 4 -

entitlement to an evidentiary hearing, petitioner must “allege
facts that would prove both that his counsel performed deficiently
and that he was prejudiced by his counsel’s deficient performance.”
Hernandez v. United States, 778 F.3d 1230, 1232-33 (11th Cir.
2015).

Viewing the facts alleged in the light most favorable to

petitioner, the Court finds that the record establishes that
petitioner is not entitled to relief, and therefore an evidentiary
hearing is not required.
B. Ineffective Assistance of Counsel Standard
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)).

“Because a petitioner's failure to

show either deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both Strickland prongs
if the petitioner fails to satisfy either of them.”

- 5 -

Kokal v.

Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010)
(citations omitted).
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 fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of
hindsight,

to

reconstruct

the

circumstances

of

counsel's

challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.”

Strickland, 466 U.S. at 689.

See also

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to
facts at the time of counsel’s conduct).

This judicial scrutiny

is

adheres

highly

deferential,

and

the

Court

to

a

strong

presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
90.

Strickland, 466 U.S. at 689-

To be 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).

- 6 -

C. Knowing and Voluntary Guilty Plea Standard
“A guilty plea is more than a confession which admits that
the accused did various acts.”

United States v. Broce, 488 U.S.

563, 570 (1989) (citations omitted).

“By entering a plea of

guilty, the accused is not simply stating that [s]he did the
discrete acts described in the indictment; [s]he is admitting guilt
of a substantive crime.”

Id.

For this reason, the United States

Constitution requires that a guilty plea must be voluntary, and
defendant must make the related waivers knowingly, intelligently
and with sufficient awareness of the relevant circumstances and
likely consequences.

United States v. Ruiz, 536 U.S. 622, 629

(2002); Hill v. Lockhart, 474 U.S. 52, 56 (1985); Henderson v.
Morgan, 426 U.S. 637, 645 (1976).

A criminal defendant who has

pled guilty may attack the voluntary and knowing character of the
guilty plea, Tollett v. Henderson, 411 U.S. 258, 267 (1973); Wilson
v. United States, 962 F.2d 996, 997 (11th Cir. 1992), or the
constitutional effectiveness of the assistance she received from
her

attorney

in

deciding

to

plead

guilty,

United

States

v.

Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986).
To be voluntary and knowing, (1) the guilty plea must be free
from coercion; (2) the defendant must understand the nature of the
charges;

and

(3)

the

defendant

must

consequences of her guilty plea.

- 7 -

know

and

understand

the

United States v. Mosley, 173

F.3d 1318, 1322 (11th Cir. 1999). Rule 11 explicitly directs the
district judge not to accept a plea without determining these “core
concerns.”

Therefore, on review, the court is “warranted in

regarding the court’s acceptance of the plea as a positive finding
on each [component of the Rule].”

United States v. Buckles, 843

F.2d 469, 473 (11th Cir. 1988).
III.
A. Ground One: Ineffective Assistance In Plea Discussions
Read liberally, petitioner asserts that her guilty pleas were
not knowing and voluntary because her counsel (1) incorrectly told
her she was facing a minimum mandatory sentence of 60 months, when
in fact there was no mandatory minimum sentence 2, and (2) coerced
her into believing her plea of guilty would get her 60 months
imprisonment, not the 108 months she received.
5.)

(Cv. Doc. #1, p.

For purposes of the §2255 motion, the Court assumes that

defense counsel made both statements to petitioner prior to her
guilty plea hearing. 3

2It

is undisputed that there are no statutory mandatory minimum
sentences for either of the counts in which petitioner was charged.
Petitioner relies primarily on the concluding statement made by
counsel in the Sentencing Memorandum and Request for Reasonable
Sentence: “Ms. Rodriguez will . . . ask the Court to consider a
departure to the minimum mandatory sentence of 60 months (five
years). . . .” (Cr. Doc. #200, p. 6.) This Sentencing Memorandum
was filed months after petitioner pled guilty. Additionally, the
Sentencing Memorandum also states that “the court is not mandated
to impose a minimum sentence, but has the discretion to apply the
3

- 8 -

Despite the incorrect verbal information from her attorney,
the Plea Agreement contained the correct information.

The Plea

Agreement stated that Counts One and Two each carry a maximum
sentence of 20 years of imprisonment, without parole, a fine, up
to three years supervised release, and a $100 special assessment.
(Cr. Doc. #145, p. 2, ¶ 2.)

The Plea Agreement does not mention

the presence of any mandatory minimum sentence for either count,
and indeed there is none.
Petitioner thereafter appeared before a magistrate judge for
a change of plea hearing.

The record of that hearing demonstrates

that petitioner was given the correct information regarding the
maximum

sentence

and

the

range

of

possible

sentences,

which

petitioner said she understood, and petitioner still wanted to
plead guilty.
Petitioner stated she was 24 years old, and had completed
high school and a year of community college.
11.)

(Cr. Doc. #232, 3:6-

Petitioner stated that she could speak, read, and understand

English.

(Id., 4:4-6.)

Petitioner affirmed that she had not

taken any drugs, alcohol or medication in the previous 48 hours,
and that she knew why she was present and what she was doing.
(Id., 5:15-20.)

Petitioner stated “Oh, yeah. Yes, I do” in

recommendations set forth in the sentencing guidelines or depart
from them. . . .” (Cr. Doc. #200, p.4.)

- 9 -

response to the question of whether she understood the charges.
(Id., 5:24-25.)

After petitioner indicated she was satisfied with

the services of her counsel, the magistrate judge found that
petitioner was competent to enter pleas of guilty to the charges.
(Id., 6:7-17.)
coerce,

or

When asked if anyone had done anything to threaten,

improperly

pressure

petitioner responded “No, sir.”

petitioner

to

plead

guilty,

(Id., 6:18-25.)

Petitioner verified that she initialed each page and signed
the end of the Plea Agreement, and that she had read the Plea
Agreement and discussed it with counsel before doing so.
7:9-25.)

(Id.,

When petitioner stated “I feel like I understand it [the

Plea Agreement] a little bit, yes”, the Magistrate Judge asked
additional questions “to make sure” she understood.

(Id., 8:1-

6.)
THE COURT: First of all, do you recognize that
the court is not a party to this agreement? By
that I mean, there's no judge that's signed
this agreement. It's only you and the
Government. You understand that?
THE DEFENDANT: Yes, I do.
THE COURT: And you understand the court's not
bound by any recommendation as to a sentence
or application of the sentencing guidelines
that may be contained in the plea agreement?
THE DEFENDANT: Yes, sir.
THE COURT: And you can't withdraw your pleas
of guilty if the court chooses not to follow
any such recommendations?

- 10 -

THE DEFENDANT: Yes, sir.
. . .
THE COURT: Does this plea agreement contain
all the promises you have made to the
Government and all the promises the Government
has made to you in return for your pleas of
guilty?
THE DEFENDANT: Yes, it does.
THE COURT: Are there any verbal promises or
other representations which you feel have been
made to you that are not contained in writing
in this agreement?
THE DEFENDANT: No, sir.
(Id., 8:7-9:15) (emphasis added).
The magistrate judge discussed sentencing and the maximum
statutory penalties with petitioner at the change of plea hearing.
(Cr. Doc. #232, 9:25-10:4.)

Petitioner acknowledged that she had

discussed the Sentencing Guidelines with her attorney, and then
was provided additional information from the magistrate judge:
. . . Have you and Mr. Abruzzo talked about
how the sentencing commission guidelines may
apply in your case?
THE DEFENDANT: Yes, we have.
THE COURT: Has he explained to you the various
considerations which go into determining which
guideline range will be consulted by the
court?
THE DEFENDANT: Yes, sir.
THE COURT: Are you aware that the sentencing
guidelines allow the court to take into
account such factors as the actual conduct in

- 11 -

which you engaged, any victim of your offense,
the role that you played, whether or not you
engaged in any obstruction of justice and
whether you've accepted responsibility for
your acts as well as other relevant factors?
THE DEFENDANT: Uh-huh.
THE COURT: Do you also understand -THE DEFENDANT: Yes.
THE COURT: Do you also understand that your
criminal history is an important factor in
determining the sentencing guidelines?
THE DEFENDANT: Yes, I do
THE COURT: The court will not be able to
determine the guideline range for your case
until after the presentence report that I
spoke about earlier has been completed, and
you and the Government have had an opportunity
to challenge the facts as reported by the
probation officer. It may be necessary for the
court to resolve disputed facts or matters
contained in the presentence report. That may
also affect the applicable guideline range to
be consulted in your case.
At this point it's unlikely that your attorney
11 can be specific as to the guideline range
which will apply in your case because he
doesn't have all the necessary information; he
hasn't seen the presentence report.
Do you understand that you will not be able to
withdraw your pleas of guilty on the ground
that any prediction your attorney may have
made as to the sentencing guideline range or
a sentence proves to be inaccurate?
THE DEFENDANT: I understand.
(Id., 10:5-12:6, 14:16-24) (emphasis added).
The magistrate judge then explained the maximum penalties for

- 12 -

both offenses, specifically advising her the sentence could by
“zero to forty years”:
THE COURT: Although the statutes under which
you're charged set forth the maximum sentence
which can be imposed, the court will consult
the sentencing guidelines as well as other
relevant factors in determining your actual
sentence.
At this time your sentence will be somewhere
between zero and 40 years. You understand
that?
THE DEFENDANT: Yes.
THE COURT: After it's been determined what
guideline applies to a case, the Judge has the
authority in some circumstances to impose a
sentence that's more severe or less severe
than
the
sentence
called
for
by
the
guidelines. . .
. . .
Either counsel, have I neglected to explain
any possible penalties applicable to this
defendant?
MR. CASAS: No, Your Honor.
THE COURT: Mr. Abruzzo?
MR. ABRUZZO: No, Your Honor.
THE COURT: Very well. Miss Rodriguez, do you
understand the possible penalties which apply
if you enter pleas of guilty to these charges?
THE DEFENDANT: Yes, sir.
(Id., 10:5-12:6, 14:16-24) (emphasis added).
The

magistrate

judge

thus

corrected

the

misinformation

petitioner says was previously given to her by her attorney.

- 13 -

Petitioner was clearly informed that the sentence for the two
counts could be anything between 0 to 40 years imprisonment, not
a mandatory minimum of 60 months.

Thus, the minimum sentence was

less severe than petitioner had been led to believe.

The guilty

plea colloquy also clearly informed petitioner that there was no
agreement as to the actual sentence, and that any statement by her
attorney attempting to predict the sentence was not binding on the
Court.

Nothing in the subsequent Sentencing Memorandum suggests

there was ever an agreement for a 60 month sentence, even though
it erroneously made reference to a statutory mandatory minimum of
60 months on one page.

Not only was the Sentencing Memorandum

written well after petitioner pled guilty, it also very clearly
recognized

the

[Presentence]

applicable

report

lists

sentencing
her

prior

range,

stating

criminal

“[t]he

history

and

determines a criminal history score of 1, a criminal history
category of II, putting her in guideline range of 151-188 months.”
(Cr. Doc. #200, p. 2.)

At the sentencing hearing, counsel simply

asked for a reduction to 60 months.
The Court finds that the erroneous statements by counsel to
petitioner prior to her guilty pleas did not render the guilty
pleas unknowing or involuntary.

Because petitioner was given the

correct information during her guilty plea hearing before being
called upon to plead, there was no prejudice as a result of her

- 14 -

attorney’s misstatements.

Relief based on Ground One is denied.

B. Ground Two: Waiver Provision in Plea Agreement
Petitioner argues that the ineffective assistance of counsel
as to the possible penalty (discussed above) resulted in the waiver
of appeal/collateral relief provision of her Plea Agreement being
unknowing and involuntary, and that counsel failed to explain the
provision to her.

The record does not support either argument.

The Court has already determined that there was no ineffective
assistance of counsel resulting from the misstatement regarding a
mandatory minimum sentence, so this does not provide a valid basis
to challenge the waiver provision.

Assuming, for purposes of the

§2255 motion, that counsel failed to explain the waiver of appeal
provision

to

petitioner,

the

Court

finds

that

the

record

establishes there was no ineffective assistance of counsel because
no prejudice has been shown.

Additionally, the record establishes

petitioner

the

did

understand

provision,

and

knowingly

and

voluntarily agreed to it.
A waiver provision in a plea agreement is valid if made
knowingly and voluntarily.

United States v. Weaver, 275 F.3d

1320, 1333 (11th Cir. 2001) (citing United States v. Bushert, 997
F.2d 1343, 1350-51 (11th Cir. 1993)).

To establish that the waiver

was made knowingly and voluntarily, the government must show that
either

(1)

the

district

court

- 15 -

specifically

questioned

the

defendant about the waiver during the plea colloquy, or (2) the
record makes clear that the defendant otherwise understood the
full significance of the waiver.

United States v. Johnson, 541

F.3d 1064, 1066 (11th Cir. 2008).
Petitioner’s written Plea Agreement contains a waiver of
appeal

and

collateral

challenge

provision,

which

states

in

pertinent part:
The defendant agrees that this Court has
jurisdiction and authority to impose any
sentence up to the statutory maximum and
expressly
waives
the
right
to
appeal
defendant’s sentence or to challenge it
collaterally on any ground . . . except (a)
the ground that the sentence exceeds the
defendant’s applicable guideline range as
determined by the Court pursuant to the United
States Sentencing Guidelines; (b) the ground
that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the
sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the
government exercises its right to appeal the
sentence imposed, as authorized by Title 18,
United States Code, Section 3742(b), then the
defendant is released from his waiver and may
appeal the sentence as authorized by Title 18,
United States Code, Section 3742(a).
(Cr.

Doc.

#145,

p.

13)

(emphasis

added).

As

noted

before,

petitioner stated that she read, initialed, and signed the Plea
Agreement after discussing it with her attorney.
During the plea colloquy, the magistrate judge specifically
reviewed the waiver provision on page 13 of the Plea Agreement:

- 16 -

THE COURT: . . . And under some circumstances
you or the Government may have the right to
appeal a sentence that the court imposes.
However, pursuant to a provision in your plea
agreement on Page 13, you have agreed and
expressly waived the right to appeal your
sentence or to challenge it collaterally on
any ground, including the ground that the
court may have erred in determining the
applicable guideline range pursuant to the
sentencing guidelines, with three exceptions.
You may appeal on the ground that the sentence
exceeds the applicable guideline range as
determined by the court; secondly, you may
appeal on the ground that the sentence exceeds
the statutory maximum penalty; or, thirdly,
you may appeal on the ground that the sentence
violates
the
Eighth
Amendment
to
the
constitution.
Provided, however, if the Government were to
exercise its right to appeal the sentence
that's imposed, you would be released from the
waiver and you would be able to appeal the
sentence as authorized by law.
Do you understand this waiver of your rights?
THE DEFENDANT: Yes, I do.
THE COURT: Did you make this waiver knowingly
and voluntarily?
THE DEFENDANT: I did.
(Cr. Doc. #232, 12:6-13:3) (emphasis added).
The

Court

finds

that

the

magistrate

judge

specifically

discussed the waiver provision and explained the consequences of
the waiver provision.

The Court further finds that petitioner

verbally acknowledged and agreed that she understood the waiver
provision, and that the pleas were made knowingly and voluntarily.

- 17 -

Therefore, even if petitioner’s attorney had not explained the
provision, by the time petitioner entered her guilty pleas she had
been fully advised about this provision, stated she understood it,
and agreed the waiver was knowing and voluntary.

Thus, petitioner

has failed to establish any prejudice from her attorney’s failure
to explain the provision.

There has been no constitutionally

ineffective counsel and relief as to Ground Two is denied.
C. Ground Three: Ineffective Assistance Re: Drug Quantity
As to Ground Three, petitioner asserts that her attorney
provided ineffective assistance because he failed to argue that
she had been incarcerated for 13 months of the 16 month conspiracy,
and therefore the drug quantity for which she was accountable
should be lower. The record reflects that petitioner’s attorney
did object to the amount of drugs attributed to petitioner, and
that he obtained a successful result.
The Indictment (Cr. Doc. #1) reflects the charged conspiracy
existed from in or about January, 2010 through in or about May,
2011.

The

Presentence

Report 4 reflects

that

Defendant

David

Massey was the organizer/leader of an organization which recruited
individuals to act as patients who would obtain prescriptions for
Oxycodone and then distribute the Oxycodone illegally.

(Cr. Doc.

The Presentence Report was filed under seal as an attachment to
United States Probation’s memorandum regarding petitioner’s
eligibility under the Amendment 782. (Cr. Doc. #268.)
4

- 18 -

#268, p. 13, ¶ 20.)

During the time frame petitioner participated

in the conspiracy, there were 6,391 15 mg Oxycodone pills and
25,450 30 mg Oxycodone pills obtained for distribution by members
of the conspiracy.

(Id. at ¶ 21.)

Using these drug quantities,

the Presentence Report computed petitioner’s base offense level at
level 34.

(Id., p. 16, ¶¶ 41, 42.)

Defense

Counsel

filed

a

written

objection

to

the

drug

quantity, arguing that for most of the time the conspiracy was
ongoing

petitioner

conspiracy.

was

in

jail

and

not

participating

in

the

(Cr. Doc. #200, pp. 1-2; Cr. Doc. #268, p. 30.)

The

drug quantity for which petitioner was accountable was the first
issue raised by defense counsel at the sentencing hearing.
Doc. #230, 4:21-6:3.)

(Cr.

The Court and the parties discussed the

dates petitioner was in jail, and what periods of time had been
used for the pill counts.

(Id., pp. 8-10.)

Defense counsel and

the government attorney were provided an opportunity outside the
presence of the Court to review the discovery as to the appropriate
amount of pills, and the Court took a 26 minute recess.
10:19-11:11; 16:20-17:21.)

(Id.,

The government deducted a certain

number of pills based upon the dates of petitioner’s incarceration,
and

recalculated

the

drug

quantities.

(Id.,

pp.

17-18.)

Petitioner personally agreed to the recalculated amount (id., p.
18), which resulted in a two-level reduction to level 32 (id., pp.

- 19 -

18-19).

Based on counsel’s successful argument, the guideline

range was lowered to a range of 121 months to 151 months, down
from the original calculation of 151 months to 188 months of
incarceration.
The

(Cr. Doc. #268, p. 26, ¶ 90.)

record

thus

establishes,

contrary

to

petitioner’s

argument, that counsel did raise the issue of the drug quantity,
and that he did so effectively and to petitioner’s benefit.

There

is neither deficient performance nor prejudice established.
Along a similar line, petitioner argues that her attorney
should have argued about the quantity of drugs she possessed in
Count

Two,

which

Guidelines range.

required

a

separately

calculated

Sentencing

The law does not support petitioner’s position,

and there was no ineffective assistance of counsel for failing to
make an argument that had no merit.
While on bond, petitioner possessed a quantity of Oxycodone
on September 30, 2010, which formed the basis of Count Two of the
Indictment.

Petitioner traveled with a confidential informant to

Broward County, Florida, where she went into a doctor’s office and
a

clinic

Alprazolam.
before

and

exited

with

prescriptions

for

Oxycodone

and

The prescriptions were filled at a pharmacy in Naples

returning

to

Lee

County,

Florida.

Police

officers

conducted a traffic stop of petitioner’s vehicle, and she was taken
into custody.

Petitioner’s vehicle contained 30 2mg pill of

- 20 -

Alprazolam (Xanax) and 30 pills of Lisinop, HCTZ.

Petitioner’s

purse

a

contained

143

30

mg

Oxycodone

pills,

and

search

of

petitioner’s person uncovered 180 30 mg Oxycodone pills; 60 15mg
Oxycodone pills; and 60 2mg pills of Alprazolam.

(Cr. Doc. #268,

pp. 14-15, ¶¶ 27-31.)
Petitioner is correct that this quantity of Oxycodone would
not alone rise to a Level 32, but is incorrect in arguing that she
was only accountable for these drugs in computing the Count Two
sentence.
When a defendant has more than one count of
conviction, U.S.S.G. § 3D1.1 of the Sentencing
Guidelines instructs the district court to
group the counts “into distinct Groups of
Closely Related Counts” by applying the rules
in § 3D1.2. After that is done, the district
court determines the offense level for each
Group by applying the rules in U.S.S.G. §
3D1.3. The district court then determines the
“combined offense level” applicable to all
“Groups taken together” by applying the rules
in U.S.S.G. § 3D1.4. See U.S.S.G. § 3D1.1(a).
United States v. Jimenez-Cardenas, 684 F.3d 1237, 1239 (11th Cir.
2012).

After completing this process, the Court “shall impose

that total punishment on each such count, except to the extent
otherwise required by law.”
5G1.2(b).

U.S. Sentencing Guidelines Manual §

This is what occurred with regard to Count II.

Thus,

there was no legal basis for defense counsel to object to the drug
amount used to calculate the Sentencing Guidelines range for Count
Two.

Failure to make such an objection was neither deficient

- 21 -

performance nor prejudicial.

Petitioner is denied relief as to

Ground Three.
D. Ground Four:
Mitigation

Ineffective

Assistance

Regarding

Role

Petitioner asserts that counsel should have argued for a
downward departure based on her very minor role in the conspiracy,
during which she was mostly incarcerated, and because she clearly
was coerced by her boyfriend and leader in the conspiracy to take
responsibility.

The

Court

finds

this

argument

unpersuasive

because the facts clearly demonstrate petitioner was not entitled
to a role reduction.
At sentencing, the Court asked about petitioner’s role in the
conspiracy relative to her co-defendants.

The government argued

that she was “the right-hand woman of David Massey”, trusted and
at least equal to Devon Gallagher, his brother.
27:14-25.)

(Cr. Doc. #230,

The admitted facts in the Plea Agreement and the

Presentence Report reflect petitioner’s substantial role in the
conspiracy and distribution of Oxycodone, even discounting the
time petitioner was in jail.

Petitioner admitted to the facts

that establish that she “sponsored” people by paying for their
doctor visits and their prescriptions, and paid them a fee to keep
filling the prescriptions.

Petitioner was under surveillance as

she made stops and filed prescriptions for Oxycodone.

The fact

that petitioner was in jail for most of the conspiracy did not

- 22 -

diminish her agreement with the co-defendants, her knowledge of
the objective and activities of the conspiracy, or her role when
she was not in jail.
counsel

to

have

It is objectively reasonable for trial

argued

mitigating

factors

that

had

a

better

likelihood of success, such as petitioner’s upbringing and her
absence during a majority of the charged conspiracy, rather than
attempting

to

conspiracy.

5

downplay

petitioner’s

factual

role

in

the

Additionally, the Court finds no prejudice since

such an argument for a role reduction would have been denied by
the undersigned based upon the undisputed facts of the case.
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. #247) is DENIED as to all grounds
on the merits.
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.

Counsel also argued, as set forth in the Sentencing Memorandum,
that petitioner was molested as a toddler, and later as a young
girl, and gave birth at the age of 13.
Counsel argued that
petitioner was “infatuated” with David Massey, a young woman with
a drug addiction, and that she should be given a sentence reduction
to “possibly 60 months.” (Cr. Doc. #230, 20:19-23; 22:4-9, 1012.)
5

- 23 -

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 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 February, 2017.

Copies:
Petitioner, AUSA

- 24 -

24th

day