Taylor v. United States of America
Filing
25
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-112-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall provide a copy of this Opinion and Order to petitioner. Signed by Judge John E. Steele on 5/12/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN MENDEL TAYLOR, JR.,
Petitioner,
v.
Case No: 2:14-cv-315-FtM-29MRM
Case No. 2:12-CR-112-FTM-29DN
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. Docs. #1, #2; Cr.
Doc. #47) 1 filed on June 9, 2014.
Petitioner moved to supplement
the
and
record,
which
was
granted,
the
Motion
for
Leave
to
Supplement the Record (Cv. Doc. #6) was accepted as a supplement.
The government filed a Response in Opposition to Motion (Cv. Doc.
#11) on August 11, 2014. The petitioner filed a Traverse (Cv. Doc.
#12) on September 2, 2014, replying to the government.
1
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.”
I.
On October 3, 2012, a federal grand jury in Fort Myers,
Florida returned a six-count Indictment (Cr. Doc. #3) charging
petitioner with possession with intent to distribute over 28 grams
or more of crack cocaine (Count One); three counts (Counts Two,
Four, and Five) of possession of a firearm and ammunition by a
convicted
felon;
convicted
felon
one
count
(Count
of
Six);
possession
and
of
possession
ammunition
with
by
intent
a
to
distribute for hum consumption a quantity or mixture containing
MDMA (Count Three).
On March 4, 2013, petitioner appeared before
the Magistrate Judge and entered a plea of guilty on all counts.
(Cr. Doc. #33.)
adjudicated guilty.
The pleas were accepted and petitioner was
(Cr. Doc. #36.)
At sentencing, the Court determined that the Base Offense
Level was 26 because the offense involved 49.6 grams of crack
cocaine and 13.7 grams of MDMA, but petitioner’s sentence was
enhanced under the career offender provisions of U.S. Sentencing
Guidelines Manual § 4B1.1.
Petitioner was 24 when he committed
the instant offense, one of the offenses involves a controlled
substance, and petitioner had at least two prior felony convictions
at the time for either a crime of violence or a controlled
substance
offense,
resisting
an
i.e.
the
officer-flee
sale
elude
or
law
- 2 -
delivery
of
enforcement
cocaine
officer
and
with
lights siren active.
The application of the career offender
enhancement was undisputed.
This resulted in an Enhanced Total
Offense Level of 31 after deducting three levels for acceptance of
responsibility.
On June 16, 2013, counsel filed a Sentencing Memorandum (Cr.
Doc. #39) seeking a downward departure for an over-representation
of petitioner’s criminal history, and for due consideration to the
18 U.S.C. § 3553(a) factors.
The Court granted the downward
departure over the government’s objection finding that a Criminal
History Category VI substantially over-represented the seriousness
of petitioner’s criminal history and departed to a Category V.
(Cr. Doc. #52.)
This lowered the applicable guideline range to
168 to 210 months of imprisonment.
(Cr. Doc. #50, p. 10.)
The
Court also considered the § 3553(a) factors at length, including
petitioner’s family history.
(Id., p. 27.)
On June 17, 2013, the
Court sentenced petitioner to a term of imprisonment of 120 Months
as to each count, to be served concurrently, followed by a term of
supervised release.
(Cr. Doc. #40.)
Judgment (Cr. Doc. #42) was
filed on June 18, 2013.
Petitioner did not file a direct appeal with the Eleventh
Circuit, and the conviction became final 14 days after the Judgment
on June 25, 2013.
See Mederos v. United States, 218 F.3d 1252,
1253 (11th Cir. 2000).
Petitioner timely filed his Motion under
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§ 2255 on June 9, 2014, and within one year of his conviction and
judgment becoming final.
See 28 U.S.C. § 2255(f)(1).
On September 1, 2015, the Court appointed counsel to review
petitioner’s eligibility for a reduction in his sentence under
Amendment 782 of the U.S. Sentencing Guidelines.
(Cr. Doc. #139.)
On April 7, 2016, after notice of a determination that a motion
would not be filed on behalf of petitioner because he was sentenced
as a career offender and not based on the drug quantity table in
U.S. Sentencing Guidelines Manual § 2D1.1(c), the Court relieved
the Federal Public Defender as counsel of record.
(Cr. Doc. #59.)
II.
Petitioner argues that his counsel was ineffective for not
arguing that Florida’s drug statute does not contain an element of
“knowing”, and therefore the sale or delivery of cocaine should
not have counted to qualify petitioner for the career offender
enhancement.
Petitioner further argues that the conviction is not
a “controlled substance offense” because under the categorical
approach, a conviction under Fla. Stat. § 893.13(1) is not a drug
trafficking offense.
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. . .
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.” 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, 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
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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
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
- 6 -
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. Career Offender Status
Under the career offender provisions of the United States
Sentencing Guidelines, a defendant is deemed a career offender “if
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime
of
violence
or
a
controlled
substance
offense;
and
(3)
the
defendant has at least two prior felony convictions of either a
crime of
violence
or
a
controlled
substance
Sentencing Guidelines Manual § 4B1.1(a) (2016).
offense.”
U.S.
As relevant here,
the term “‘controlled substance offense’ means an offense under
federal
or
exceeding
state
one
law,
year,
punishable
that
by
prohibits
imprisonment
the
for
manufacture,
a
term
import,
export, distribution, or dispensing of a controlled substance (or
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a
counterfeit
substance)
or
the
possession
of
a
controlled
substance (or a counterfeit substance) with intent to manufacture,
import,
export,
distribute,
or
dispense.”
U.S.
Sentencing
Guidelines Manual § 4B1.2(b) (2016).
It is now well established, and from the plain and unambiguous
language of § 4B1.2(b), that knowledge of the illicit nature of
the substance or an element of mens rea is not required in order
for an offense under Fla. Stat. § 893.13(1) to qualify as a
controlled substance offense.
United States v. Smith, 775 F.3d
1262, 1267 (11th Cir. 2014); United States v. Burton, 564 F. App'x
1017, 1019 (11th Cir. 2014).
In Smith, the Eleventh Circuit
explicitly rejected the same arguments being made by petitioner:
Section 893.13(1) of the Florida Statutes is
both a “serious drug offense,” 18 U.S.C. §
924(e)(2)(A), and a “controlled substance
offense,”
U.S.S.G.
§
4B1.2(b).
Neither
definition requires that a predicate state
offense includes an element of mens rea with
respect
to
the
illicit
nature
of
the
controlled substance.
Smith,
775
F.3d
at
1268.
Petitioner
cannot
show
deficient
performance, or prejudice, for failure to raise an issue that was
without merit.
“Given that Descamps 2 and Donawa 3 address other
Descamps v. United States,
U.S.
, 133 S. Ct. 2276 (2013)
(examining burglary under the Armed Career Criminal Act).
2
Donawa v. U.S. Attorney Gen., 735 F.3d 1275 (11th Cir. 2013)
(examining under the Immigration and Nationality Act).
3
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federal statutes and do not address whether an offense under
Florida Statutes § 893.13(1)(a) is a controlled substance offense
under U.S.S.G. § 4B1.2(b),” see Burton, 564 F. App'x at 1019–20,
petitioner’s reliance on these cases is also misplaced.
The
motion will be denied.
Any issues raised by counsel under Johnson v. United States,
135 S. Ct. 2551 (2015) or Beckles v. United States, 137 S. Ct. 886
(2017), were deemed moot by the Court’s April 3, 2017 Order (Cv.
Doc. #23).
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. #47) is DENIED.
2.
Due to counsel’s failure to respond to the Order to show
cause (Cv. Doc. #24), the Clerk shall provide a copy of
this Opinion and Order directly to petitioner.
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:
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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 May, 2017.
Copies:
Petitioner
AUSA
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12th
day
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