Pierre v. United States of America

Filing 13

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. 2:12-cr-130-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 4/24/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANSY WAPNER PIERRE,
Petitioner,
v.

Case No: 2:14-cv-306-FtM-29CM
Case No. 2:12-CR-130-FTM-29UA

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.
#50). 1

The government filed a Response in Opposition to Motion

(Cv. Doc. #4), and the petitioner filed a Response to His §2255
Motion (Reply) (Cv. Doc. #8).
I.
On November 28, 2012, a federal grand jury in Fort Myers,
Florida returned a four-count Indictment (Cr. Doc. #5) charging
petitioner with (1) distribution of crack cocaine, (2) possession
of a firearm and ammunition having been convicted of a one or more
felonies 2, (2) possession of the firearm in furtherance of a drug

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

The two
cocaine.
2

underlying

felonies

are

robbery

and

possession

of

trafficking crime, and (4) another count of distribution of crack
cocaine.

On March 1, 2013, the government filed a Notice of

Penalties, Elements, and Facts (Cr. Doc. #31) in connection with
petitioner’s anticipated plea of guilty without a plea agreement.
The government also filed a Notice of Intention to Use Prior
Convictions to Enhance the Penalty as to Counts One and Four of
the Indictment (Cr. Doc. #32) (the distribution of crack cocaine
counts), pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 851.
petitioner’s

prior

felony

drug

conviction

for

Based on

possession

of

cocaine in or about April 13, 2009, the government sought an
enhanced the maximum statutory penalty to a term of imprisonment
not to exceed 30 years.
On March 4, 2013, petitioner appeared before the magistrate
judge and entered pleas of guilty as to all four counts.
Doc. #33.)
guilty.

(Cr.

The pleas were accepted and petitioner was adjudicated

(Cr. Doc. #35.)

Counsel for petitioner objected to the Presentence Report and
filed an Amended Sentencing Memorandum With Redactments (Cr. Doc.
#48) 3.

Defense counsel argued that petitioner’s prior conviction

for Fleeing to Elude Law Enforcement was not a crime of violence
because the “vehicle” at issue was a scooter.

On August 12, 2013,

The original memorandum, Cr. Doc. #42, was stricken from the
docket as it contained a possible Social Security number, and the
redacted version was filed after the sentencing hearing.
(Cr.
Doc. #51, pp. 7-8.)
3

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the Court issued an Opinion and Order (Cr. Doc. #46) rejecting
defense counsel’s assertion that the prior conviction for Fleeing
to Elude Law Enforcement was not a crime of violence under the
career offender provisions of the Sentencing Guidelines.
At

sentencing,

petitioner’s

Total

Offense

Level

was

determined to be 31, and his criminal history was a Category VI,
resulting

in

a

guideline

range

of

262

to

327

months

of

imprisonment, plus 5 years consecutive imprisonment for Count
Three.
Court

Counsel argued for a variance, which was granted, and the
sentenced

imprisonment

as

petitioner

to

to

One,

Counts

concurrent
Two

&

120

Four,

month
plus

terms
60

of

months

consecutive as to Count Three, for a total sentence of 180 months
imprisonment, followed by a term of supervised release.
#47.)

(Cr. Doc.

Judgment (Cr. Doc. #49) was filed on August 13, 2013.

Petitioner did not file an appeal.

Petitioner’s § 2255

motion was executed and placed in the prison mail system on or
about June 1, 2014.

The motion is timely filed.
II.

Petitioner raises two related grounds in his initial motion:
(1) that he was improperly classified as a career offender because
his 2009 possession of cocaine does not constitute a controlled
substance offense under U.S. Sentencing Guideline § 4B1.1; and,
(2) that he was denied effective assistance of counsel because
counsel failed to challenge the career offender enhancement based

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on the possession of cocaine conviction.

In his Reply, petitioner

argues that his conviction for Fleeing to Elude a Law Enforcement
Officer was not a qualifying crime of violence because there was
no chase or risk of bodily harm, and he was on a motor scooter.
A. Evidentiary Hearing Standard
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).

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) (a hearing is
not

necessarily

required

counsel is asserted).

whenever

ineffective

assistance

of

To establish entitlement to an evidentiary

hearing on an ineffective assistance of counsel claim, 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

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favorable

to

establishes

petitioner,

that

the

petitioner

Court

is

finds

that

not

entitled

the

to

record

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.”

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

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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).
C. Asserted Grounds For Relief
(1)

Possession of Cocaine As A Qualifying Career Offender
Predicate Conviction

Petitioner

was

designated

a

career

offender

under

U.S.

Sentencing Guidelines § 4B1.1 because some of the current offenses
involved a felony controlled substance offense, and petitioner had
at least two prior felony convictions of either a crime of violence
or a controlled substance offense.

As predicate offenses for the

career offender enhancement, the Court counted (1) a robbery

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conviction for which petitioner pled nolo contendere on December
6, 2002, and was sentenced to 20.8 months imprisonment, and (2) a
fleeing to elude a law enforcement officer conviction for which
petitioner pled nolo contendere on September 6, 2011, and was
sentenced to one year imprisonment.
conviction

was

conviction.

not

utilized

as

a

The possession of cocaine
career

offender

predicate

The possession of cocaine conviction was only used

as a predicate for the felon in possession of a firearm count and
to enhance the statutory maximum penalty for the current drug
offenses

pursuant

to

21

U.S.C.

§§

841(b)(1)(C)

and

851.

Therefore, petitioner’s claim that his career offender status was
based on the possession of cocaine conviction is without merit.
(2)

Ineffective Assistance of Counsel

Petitioner

argues

that

his

attorney

provided

ineffective

assistance by failing to challenge his career offender status based
upon the use of the possession of cocaine conviction.

Since the

possession of cocaine conviction was not utilized for career
offender

purposes,

defense

counsel

had

nothing

to

challenge.

Petitioner has not established any basis for his ineffective
assistance of counsel claim.
(3)

Fleeing to Elude a Law Enforcement Officer Conviction

In his Reply, petitioner asserts that the Fleeing to Elude a
Law Enforcement Officer conviction is not a qualifying conviction
under

the

Sentencing

Guideline’s

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Career

Offender

provision.

Before sentencing, defense counsel raised both a factual objection
regarding the reference in the Presentence Report to a motorcycle
rather than a motor scooter, and a legal objection to use of the
conviction for career offender designation because the vehicle
flight was done on a motor scooter.

The Court sustained the

factual objection and made the change to the presentence report.
The facts were otherwise admitted.

The Court overruled the legal

objection in an Opinion and Order (Cr. Doc. #46).
The Presentence Report establishes petitioner was charged
with Fleeing to Elude a Law Enforcement Officer pursuant to Fla.
Stat. § 316.1935(1), possession of cocaine, driving without a
Driver’s

License,

without violence.

possession

of

paraphernalia,

and

resisting

Petitioner pled nolo contendere to all counts,

and was sentence to one year imprisonment for the Fleeing to Elude
and possession counts.
Under the applicable Florida statute, “[i]t is unlawful for
the operator of any vehicle, having knowledge that he or she has
been

ordered

to

stop

such

vehicle

by

a

duly

authorized

law

enforcement officer, willfully to refuse or fail to stop the
vehicle in compliance with such order or, having stopped in knowing
compliance with such order, willfully to flee in an attempt to
elude the officer.”
2004).

Fla. Stat. § 316.1935(1) (effective July 1,

In the Opinion and Order (Cr. Doc. #46), the Court applied

the categorical approach and determined that the conviction under

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Fla. Stat. § 316.1935(1) was a crime of violence based on the
rationale of United States v. Petite, 703 F.3d 1290 (11th Cir.
2013), which found subsection (2) was a crime of violence under
the Armed Career Criminal Act, and because “vehicle” is defined to
include every device upon which a person can be transported.

This

would include a motor scooter.
Since

the

undersigned’s

Opinion

and

Order,

the

Eleventh

Circuit has specifically determined that vehicle flight under
subsection

(1)

is

a

sentencing guidelines.

crime

of

violence

for

purposes

of

the

United States v. Travis, 747 F.3d 1312,

1315 (11th Cir. 2014); United States v. Anderson, 600 F. App'x
666, 670 (11th Cir. 2015); United States v. Ford, 649 F. App’x 756
(11th Cir. 2016).

The Eleventh Circuit noted that “vehicle flight

is an inherently risky enterprise, even when it does not involve
high speeds or other reckless conduct, because it can end in a
violent

confrontation

between

the

offender

and

the

police.”

Travis, 747 F.3d at 1316.
Even if the Court could consider the underlying facts of the
prior conviction, it would not help petitioner’s claim.

According

to the Presentence Report, on March 10, 2011, a Collier County
Deputy

saw

petitioner

driving

a

motor

scooter

without

eye

protection and initiated a traffic stop by activating emergency
lights and siren.
by

twisting

the

Petitioner looked at the Deputy then sped up
throttle

and

crouching

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lower

into

the

motor

scooter.

The

female

passenger

turned

and

saw

the

Deputy.

Petitioner drove through the center of an apartment complex, off
the roadway, and onto the grass where he jumped off the motor
scooter and fled on foot.

The deputy gave chase and petitioner

continued to run, despite orders to stop.

The Deputy deployed his

Taser, striking petitioner in the upper left shoulder and back,
and causing him to stop running and fall to the ground, striking
his head against the wall as he fell.

While the officer attempted

to cuff him, petitioner pushed himself up and threw a white plastic
container, which was retrieved and found to contain 35 pieces of
crack

cocaine.

The

Deputy

administered

ordered defendant not to move.

the

Taser

(Cr. Doc. #56, ¶ 50.)

again

and

Therefore,

the fleeing to elude law enforcement conviction was a proper
predicate conviction.
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. #50) 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:

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A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.

A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s
denial of his petition.

28 U.S.C. § 2253(c)(1); Harbison v. Bell,

556 U.S. 180, 183 (2009).

“A [COA] may issue . . . only if the

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

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

reasonable

jurists

would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations 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 April, 2017.

Copies:
Petitioner
AUSA

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24th

day