Bokerman 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. 2:11-cr-112-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 10/10/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM BOKERMAN,
Petitioner,
v.

Case No: 2:15-cv-69-FtM-29CM
Case No. 2:11-CR-112-FTM-29SPC

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.
#90) 1 filed on February 5, 2015.

The government filed a Response

in Opposition to Motion (Cv. Doc. #5) on April 7, 2015. The
petitioner filed a Reply (Cv. Doc. #7) on May 12, 2015.
I.
On November 9, 2011, a federal grand jury in Fort Myers,
Florida returned a three-count Indictment (Cr. Doc. #14) charging
petitioner with knowingly using, persuading, enticing, or coercing
a minor outside of the United States to produce a sexually explicit
visual depiction, and transporting the visual depiction to the

1The

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.”

United States in interstate or foreign commerce (Count One);
knowingly transporting a visual depiction of a minor engaged in
sexually explicit conduct in interstate or foreign commerce (Count
Two); and possession of one or more visual depictions of a minor
engaged in sexually explicit conduct and transported in interstate
or foreign commerce (Count Three).

On May 10, 2012, petitioner

appeared before a magistrate judge and entered a plea of guilty to
Counts

Two

and

Agreement.

Three

(Cr.

Docs.

of

the

##

45,

Indictment
49.)

pursuant

The

guilty

to

a

Plea

pleas

were

accepted, and petitioner was adjudicated guilty on May 14, 2012.
(Cr. Doc. #51.)

Count Two provides a statutory minimum of 15

years, and Count Three carries a statutory minimum of 10 years.
At sentencing, on November 13, 2012, the Court found that the
government failed to show by a preponderance of the evidence that
petitioner was a parent, relative, or legal guardian, and that
petitioner

had

demonstrated

an

acceptance

of

responsibility,

lowering defendant’s Total Offense Level to 40 from 43, which would
have carried a guideline range of life imprisonment.
#75, pp. 76, 82, 84.)

(Cr. Doc.

With a Criminal History Category II,

petitioner’s guideline range was 324 months to 405 months of
imprisonment.

The

Court

sentenced

petitioner

to

a

term

of

imprisonment of 324 months as to Count Two, and 224 months as to
Count Three, to be served concurrently, followed by a term of
supervised release.

(Cr. Doc. #65.)

- 2 -

Count One was dismissed upon

motion of the government.

Judgment (Cr. Doc. #67) was filed on

November 15, 2012.
Petitioner filed a Notice of Appeal (Cr. Doc. #68) arguing:
(1) that his plea was not knowing and voluntary because the
Magistrate

Judge

failed

to

warn

him

of

a

cross-referencing

guideline provision during the plea colloquy; (2) that his sentence
was cruel and unusual under the Eighth Amendment of the U.S.
Constitution; and (3) that his sentence was procedurally and
substantively unreasonable.

United States v. Bokerman, 543 F.

App'x 974 (11th Cir. 2013).

On November 7, 2013, the Eleventh

Circuit affirmed in part, and dismissed the appeal in part.
Doc. #88.)

(Cr.

Petitioner had one year from February 7, 2014 1, the

date his convictions became final, to file his motion under §2255,
and the government concedes that the February 5, 2015 2, motion was
timely filed.
II.
Petitioner raises several arguments of ineffective assistance
by trial counsel related to two stages of his case:

his change

of plea and sentencing.

See Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir.
2002).
1

The motion was signed and executed by petitioner on January 8,
2015, and filed by counsel on February 5, 2015.
2

- 3 -

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

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

- 4 -

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.”

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

- 5 -

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. 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

- 6 -

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

know

and

understand

the

consequences of her guilty plea.

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.”

“With respect to the Sentencing Guidelines, where the

court confirms that a defendant is aware of the Guidelines and has
discussed the effect of the Guidelines on his sentence with his
attorney, Rule 11 compliance has occurred.”

United States v.

Bokerman, 543 F. App'x 974, 976 (11th Cir. 2013).

Relief from a

Rule 11 violation is available “only in the most egregious cases.”
United States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004).

- 7 -

III.
A. Ground One: Change of Plea
Petitioner argues that his plea was not knowing and voluntary
because:

(1)

counsel

failed

to

advise

petitioner

that

his

sentencing guideline range would be mandatory life based on his
criminal history, or that service of a life sentence was a virtual
certainty, and instead advised petitioner that he would receive
the statutory minimum or less, and he would get an early release
when he turned 70 years old under the Second Chance Act (petitioner
was 65 years old at the time of the plea); (2) the waiver of the
right to appeal subjected petitioner to a life sentence without
any ability to obtain review for fundamental legal error and
therefore was not knowing; (3) counsel had a financial conflict of
interest in petitioner’s assets by imposing a “perpetual billing
regimen” that became more valuable the longer petitioner remained
incarcerated; (4) petitioner was not advised that he could have
objected to the recommendation of the Magistrate Judge before it
was accepted, and petitioner did not file a waiver of the objection
period or know that he had the right to withdraw the plea.
Petitioner

also

argues

that

he

had

a

valid

statute

of

limitations defense as to Count Two, a valid challenge to the
sufficiency of Count Three of the Indictment because an essential
element

of

the

offense

was

absent,

- 8 -

and

a

valid

suppression

challenge to custodial interrogation in an Embassy and to the
seizure of his personal items stored at his mother’s home.
1. Plea Colloquy
On May 10, 2012, petitioner appeared before the Magistrate
Judge to enter a plea of guilty as to Counts Two and Three of the
Indictment pursuant to a Plea Agreement.

The first two grounds

raised by petitioner address what counsel told petitioner, or
failed to tell petitioner, with regard to the possible sentence
petitioner

was

facing.

Although

now

couched

in

terms

of

ineffective assistance, the argument that petitioner’s plea was
unknowing or not voluntary, was rejected by the Eleventh Circuit.
United States v. Bokerman, 543 F. App'x 974, 975 (11th Cir. 2013).
During the change of plea hearing, petitioner responded that
he

understood

the

charges,

he

had

sufficient

time

and

the

opportunity to review the charges with counsel, and that he was
satisfied with the services of counsel.

(Cr. Doc. #79, pp. 4-5.)

Petitioner responded “No, they have not” when asked: “Has anyone
threatened you, forced you, or in any way promised you anything in
order to get you to enter pleas of guilty to those two counts?”
(Id.,

p.

understood

5.)
that

The
the

Magistrate
Court

Judge

was

not

asked
bound

petitioner
by

any

if
of

he
the

recommendations as to the sentence contained in the plea agreement,
to which petitioner responded “That’s true, yes.”

- 9 -

(Id., p. 7.)

THE COURT: Does the plea agreement contain all
of the promises that you made to the
Government and all of the promises they made
to you in writing?
DEFENDANT: Yes.
THE COURT: Is either counsel aware of any
promises or representations that were made
that are not reduced to writing in the plea
agreement?
MS. CALDARONE: No, Your Honor.
THE COURT: Mr. Murray, any promises or
representations that were made that are not
reduced to writing?
MR. MURRAY: No, no, Your Honor.
. . . .
Now, in regard to the plea agreement, we've
discussed that quite a bit, but the Government
has tendered, obviously, an offer to the
defendant. And Mr. Murray, you've conveyed all
offers and all of the parameters of those
offers to the defendant; is that correct?
MR. MURRAY: That is correct, Your Honor.
THE
COURT:
And
that's
what
is
memorialized in the plea agreement?

then

MR. MURRAY: Correct.
(Id., pp. 7, 18.)

Petitioner agreed that the plea agreement

contained all promises made, and counsel confirmed that he did not
make any oral promises or representations.

To require the Court

to “sufficiently “thresh out” the possibility that his plea was
coerced would be to elevate form over substance, contrary to the
spirit of Rule 11.”

United States v. Stitzer, 785 F.2d 1506, 1513

- 10 -

(11th Cir. 1986).

Petitioner makes the argument that he was not

properly advised, or was ill-advised as to the sentence he was
facing, but provides no specific facts or an affidavit regarding
what counsel allegedly told him prior to the change of plea.

See

Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“The subsequent
presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in the face
of the record are wholly incredible.”).

As discussed below,

petitioner’s own statements on the record negate any such argument.
2. Sentencing Range
As part of the colloquy, the Magistrate Judge explained the
possible penalties, including the applicable minimum mandatory
terms of imprisonment associated with both Counts Two and Three:
THE COURT: In regard to the penalties for
those charges, Count 2 carries a minimum
mandatory sentence of 15 to 40 years of
imprisonment, a fine of up to $250,000, a term
of supervised release of not less than five
years up to life, and a special assessment of
$100 that's due at the time of sentencing.
Count 3 carries a minimum mandatory sentence
of 10 to 20 years of imprisonment, a fine of
up to $250,000, a term of supervised release
of not less than five years up to life, and a
special assessment of $100 due at the time of
sentencing.
Do you understand the possible penalties
should you enter a plea of guilty to the
charges?
DEFENDANT: Yes, yes, I do.

- 11 -

(Id., p. 8.)

The Magistrate Judge also addressed any predictions

that were made by counsel:
THE COURT: Are you aware that the sentencing
guidelines are advisory to the Court?
DEFENDANT: Yes.
THE COURT: Do you understand that your
criminal history would be an important factor
in applying the sentencing guidelines?
DEFENDANT: Yes.
THE COURT: At this time, the Court cannot
determine what guideline range applies to your
case but the Court does have the authority,
under some certain –
At this time, the Court can't determine the
guideline range that applies to you because a
presentence report has not yet been completed.
Do you understand that?
DEFENDANT: Yes, Your Honor.
. . . .
THE COURT: Now, if he has given you a
prediction of where he believes you'll fall on
the guidelines, do you understand that if he's
not correct, you're not going to be able to
withdraw your plea of guilty?
(Discussion off record)
DEFENDANT: Yes.
THE COURT: Do you have any questions as to
that?
DEFENDANT: I don't believe so.
THE COURT: Okay. Basically, the only thing I'm
asking you there is in your discussions, your
attorney may have given you some idea of where
he thought you'd fall on the guidelines but
because the presentence report has not yet

- 12 -

been completed, he doesn't know exactly where
you'd fall. So I wanted to make sure that you
knew you weren't going to be able to withdraw
your plea even if his prediction was not
correct, and you understand that; correct?
(Discussion off record)
MR. MURRAY: Your Honor, and I wish to remind
my client in court that I also informed him
that the judge can depart upward or downward,
except for the minimum mandatory, and so
there's no guarantee what the judge is going
to do.
THE COURT: Okay. And do you recall that, Mr.
Bokerman, that that is your understanding?
DEFENDANT: Yes, I believe so.
(Id., pp. 9-11.)

The Plea Agreement itself contains a provision

regarding the nonbinding nature of sentencing recommendations:
It is understood by the parties that the Court
is neither a party to nor bound by this
agreement. The Court may accept or reject the
agreement, or defer a decision until it has
had an opportunity to consider the presentence
report prepared by the United States Probation
Office.
The
defendant
understands
and
acknowledges that, although the parties are
permitted to make recommendations and present
arguments to the Court, the sentence will be
determined solely by the Court, with the
assistance of the United States Probation
Office. Defendant further understands and
acknowledges that any discussions between
defendant or defendant's attorney and the
attorney or other agents for the government
regarding
any
recommendations
by
the
government are not binding on the Court and
that, should any recommendations be rejected,
defendant will not be permitted to withdraw
defendant's plea pursuant to this plea
agreement.
(Cr. Doc. #45, pp. 9-10.)

- 13 -

“There is a strong presumption that the statements made during
the colloquy are true.”

United States v. Medlock, 12 F.3d 185,

187 (11th Cir. 1994) (citing United States v. Gonzalez-Mercado,
808 F.2d 796, 800 n.8 (11th Cir. 1987)).

Petitioner was made

aware of the minimum mandatory terms of imprisonment, and that any
predictions by counsel were not binding on the sentencing Court
because the Presentence Report had not yet been created.

See also

United States v. Bokerman, 543 F. App'x 974, 976 (11th Cir. 2013)
(finding nothing in the record to indicate that, but for the
failure to mention that U.S. Sentencing Guidelines Manual § 2G2.2,
petitioner would not have entered his guilty plea).
Neither Count Two nor Count Three carried a mandatory life
sentence as to imprisonment 3, and therefore “service of a life
sentence” was not “a virtual certainty” by any means.
Unless there is evidence in the record which
indicates that the attorney created a false
impression of the binding nature of the plea
agreement, a court must reasonably rely on the
Rule 11 colloquy and the signed plea agreement
for the proposition that the defendant
understood the agreement was non-binding.
Certainly, we realize that a defendant would
ask his attorney how he believed the judge was
likely to rule. A defendant's unexpressed
reliance on his attorney's speculation cannot
overcome his direct responses that the
agreement was non-binding.

Only the term of supervised release for each count was up to
life.
3

- 14 -

United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.10 (11th
Cir. 1987) (emphasis added).

The Court clearly asked petitioner

if he understood that his criminal history would be an important
factor

in

applying

responded “Yes.”

the

sentencing

guidelines,

(Cr. Doc. #79, p. 9.)

and

petitioner

Petitioner insisted on

an opinion as to his maximum sentence, which issue was brought to
the Court’s attention:
MR. MURRAY: Your Honor, my client would like
to have your opinion as to his maximum
sentence. I've gone over this ad nauseam, but
he would like to ask you what the worst maximum
sentence is that he's facing.
THE COURT: Okay. Mr. Bokerman, obviously I -without a presentence report, I can't tell you
exactly where the Court would sentence you and
because I would not be the sentencing judge,
I could certainly not tell you.
I can tell you what the minimum and maximum
penalties are, or in this case, the maximum
penalties with minimum mandatories, but I
cannot give you any better idea than that of
where you would fall, as far as what the
District Court would do.
. . . .
That is the best at this time that I can do in
telling you what the minimum or maximum
penalties would be.
It would be up to the
sentencing judge, after referring to the
presentence report once that's been completed,
in order to tell you what that possible
sentence or what that sentence would be.
(Doc. #79, pp. 25-27.)

The fact is that neither the non-sentencing

judge, nor counsel for petitioner, or even the government had a
presentence report such that the criminal history category could

- 15 -

be accurately determined.

Additionally, Fed. R. Crim. P. 11 does

not require the Court to specify which guidelines will be important
or prove significant.

United States v. Bozza, 132 F.3d 659, 661-

62 (11th Cir. 1998).

The Court finds no merit to the first two

arguments regarding what counsel may or may not have stated to
petitioner.
3. Waiver of Appeal
Petitioner’s written Plea Agreement (Doc. #45) was initialed
on each page by petitioner, and signed by petitioner and his
attorney, and states that it is the entire agreement between
petitioner

and

agreements,
petitioner

or
or

the

government,

representations
his

attorney.

and
exist
(Doc.

that

“no

or

have

#45,

p.

other
been
15.)

promises,
made”
The

to

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, including the
ground that the Court erred in determining the
applicable guidelines range pursuant to the
United States Sentencing Guidelines, 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

- 16 -

government exercises its right to appeal
sentence imposed, as authorized by Title
United States Code, Section 3742(b), then
defendant is released from his waiver and
appeal the sentence as authorized by Title
United States Code, Section 3742(a).

the
18,
the
may
18,

(Cr. Doc. #45, p. 10-11) (emphasis in bold added).

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, 135051 (11th Cir. 1993)).

To establish that the waiver was made

knowingly and voluntarily, the government must show that either
(1) the district court 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).
During the colloquy, the Magistrate Judge reviewed the waiver
provision of the plea agreement:
THE COURT: In the plea agreement, there is a
section on Page 10 that talks about your
waiver of your right to appeal and your right
to collaterally challenge the sentence, and I
want to make sure that you understand that
you’re agreeing that the Court does have the
jurisdiction and the authority to impose any
sentence up to the statutory maximum and that
you are expressly waiving the right to appeal
your sentence or to challenge it collaterally
on any ground, including the ground that the
Court erred in determining the applicable
guideline range pursuant to the sentencing
guidelines, except the ground that the

- 17 -

sentence exceeds your applicable guideline
range as determined by the Court, the ground
that the sentence exceeds the statutory
maximum penalties, or the ground that the
sentence violates the Eighth Amendment to the
Constitution. Do you understand that?
(Discussion off record)
DEFENDANT: Yes, I understand.
(Doc.

#79,

pp.

11-12.)

The

Eleventh

Circuit

noted

this

unambiguous acknowledgement that petitioner understood the waiver,
and dismissed that portion of his direct appeal.
v.

Bokerman,

543

F.

App'x

974,

977

(11th

Cir.

United States
2013).

The

Magistrate Judge went on to inform petitioner that he had the right
to continue with a plea of not guilty:
THE COURT: Do you understand the possible
penalties which apply if you enter a plea of
guilty, Mr. Bokerman?
(Discussion off record)
DEFENDANT: Yes, Your Honor.
THE COURT: Now, you do have a right to continue
in a plea of not guilty if that's what you'd
like to do, but you also have a right to enter
your plea of guilty here today.
You do have the right to effective assistance
of counsel at every stage of the proceedings
and Mr. Murray would continue to represent you
throughout your case, no matter how you chose
to go forward.
(Cr. Doc. #79, p. 15.)

The Court finds no deficient assistance

by counsel based on the clear statements by petitioner that he

- 18 -

understood the waiver, and the consequences.

The motion will be

denied on this basis.
4. Financial Conflict
Petitioner argues that the counsel advised him to enter a
plea

of

guilty

government,
assets.

and

without
while

obtaining

having

any

assumed

concessions

control

of

from

the

petitioner’s

Petitioner argues that his attorney should have disclosed

the conflict of interest, and should have suggested review by
independent counsel.
“In order to establish a violation of the Sixth Amendment, a
defendant who raised no objection at trial must demonstrate that
an actual conflict of interest adversely affected his lawyer's
performance.”
Based

on

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

petitioner’s

nontraditional

argument

of

a

financial

conflict, petitioner “must establish that an actual financial
conflict existed by showing that his counsel actively represented
his

own

financial

interest

.

.

.

rather

possibility of an actual financial conflict.”

than

showing

the

Caderno v. United

States, 256 F.3d 1213, 1218 (11th Cir. 2001).
The mere speculation by petitioner that billing or holding
authority over an account was a conflict, without support, is
insufficient to demonstrate a constitutional violation.
at 1219.

The motion will be denied on this basis.

- 19 -

Caderno

5. Objection to Recommendation
Petitioner argues that he did not know that he could object
to the Report and Recommendation Concerning Plea of Guilty, or
that he had the right to withdraw the plea of guilty.

Petitioner

argues that counsel permitted the Magistrate Judge to erroneously
assert that he had waived the right to object 4, when no such waiver
had been filed or occurred.

Petitioner argues that he was never

advised by anyone that he had a right to object, including “based
on his counsel’s false advice.”

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

Petitioner

does not state what objections he would have raised, or if he would
not have entered the plea of guilty but for the failure to advise
as to the objection period.
The failure to serve and file specific written objections to
a magistrate judge’s recommendations will waive a party’s right to
review.

Fed. R. Crim. P. 59(b)(2).

intentional

relinquishment

or

This waiver “constitutes an

abandonment

of

a

known

right.”

United States v. Wilcox, 324 F. App'x 805, 808 (11th Cir. 2009).
Even

assuming

a

defendant

is

prevented

from

timely

filing

objections, any such error is deemed harmless if no “factual
dispute” is presented, and the Court can assess the merits of the
motion on its face.

Rutledge v. Wainwright, 625 F.2d 1200, 1206

The Report and Recommendation stated: “The parties have waived
the
fourteen
day
objection
period
to
this
Report
and
Recommendation.” (Cr. Doc. #50.)
4

- 20 -

(5th Cir. 1980) 5; Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir.
1981).

To the extent that petitioner would challenge any legal

conclusions made, this would be reviewed de novo regardless of the
filing of an objection.

Lawston v. United States, 605 F. App'x

785, 788 (11th Cir.), cert. denied, 135 S. Ct. 2912 (2015).
In this case, the Report and Recommendation states that the
parties waived the objection period, and the Acceptance of Guilty
Plea and Adjudication of Guilt (Cr. Doc. #51) reiterates that the
parties waived the objection period.

Since petitioner argues that

the waiver was never made and the statement is incorrect, for
purposes of the Motion, the Court will assume that petitioner did
not waive the objection period.
As detailed above, the Magistrate Judge provided all the
information required under Rule 11, and even pointed out that
petitioner could still plead not guilty and proceed to trial.
(Cr. Doc. #79, p. 15.)

A defendant may withdraw a plea of guilty:

(1) before the court accepts the plea, for any
reason or no reason; or
(2) after the court accepts the plea, but
before it imposes sentence if:
(A) the court rejects a plea agreement under
Rule 11(c)(5); or

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
5

- 21 -

(B) the defendant can show a fair and just
reason for requesting the withdrawal.
Fed. R. Crim. P. 11(d).

“[T]here is no absolute right to withdraw

a guilty plea prior to imposition of a sentence.

The decision to

allow withdrawal is left to the sound discretion of the trial
court.”

United States v. Buckles, 843 F.2d 469, 471 (11th Cir.

1988 (collecting cases).

“After the court imposes sentence, the

defendant may not withdraw a plea of guilty or nolo contendere,
and the plea may be set aside only on direct appeal or collateral
attack.”

Fed. R. Crim. P. 11(e).

Petitioner argues that he would have withdrawn his plea and
proceeded with trial if counsel had properly advised him of the
applicable guideline factors calling for a life sentence, and
petitioner would have advised the Court of his conflict of interest
concerns

and

the

lack

of

consultation

related

to

the

plea,

sentencing, and his early release, as well as the misunderstanding
of relevant law and his rights.

For petitioner to establish ‘a

fair and just reason’ to withdraw his plea of guilty, the Court
considers the totality of the circumstances, “including:

(1)

whether close assistance of counsel was available; (2) whether the
plea was knowing and voluntary; (3) whether judicial resources
would

be

conserved;

and

(4)

whether

the

government

would

be

prejudiced if the defendant were allowed to withdraw the plea.”
United States v. Gittens, No. 16-14572, 2017 WL 2859509, at *1

- 22 -

(11th Cir. July 5, 2017) (citing United States v. Buckles, 843
F.2d 469, 471-72 (11th Cir. 1988)).
As of the date of sentencing, petitioner had not sought to
withdraw his plea, even if he did lose the opportunity to timely
object to the recommendation.
issue on direct appeal.

Petitioner also did not raise the

Petitioner was represented by counsel

throughout the proceedings, including his direct appeal, and the
Court

has

determined

voluntary.

that

the

guilty

plea

was

knowing

and

The government would clearly be prejudiced based on

the passage of time, and the fact that the unidentified minors
would be even more difficult to identify.

The motion contains

conjecture and allegations, but no verified factual statements
despite petitioner’s averment that the government failed to rebut
the “sworn factual allegations in the § 2255.”

(Cv. Doc. #7, ¶

1.)
Petitioner’s reliance on Gomez-Diaz v. United States, 433
F.3d

788

(11th

Cir.

2005)

is

also

misplaced.

There

is

no

indication that counsel disregarded instructions from his client
to appeal, and petitioner did in fact pursue a direct appeal.
Moreover, regardless of what conversations took place between
counsel

and

petitioner

before

the

change

of

plea

hearing,

petitioner stated on the record that he understood the consequences
of the guilty plea including that the sentence could not be
predicted.

Because petitioner’s allegations are “affirmatively

- 23 -

contradicted by the record”, by his own responses at the change of
plea hearing, no hearing is required and no relief is warranted
based on “unsupported generalizations.”
876 F.2d 1545, 1553 (11th Cir. 1989).

Holmes v. United States,
The motion is denied as to

this argument.
6. Substantive Arguments
Petitioner

argues

that

counsel

failed

to

adequately

investigate and explain to him the right to seek suppression of
both statements related to his foreign arrest, and property he
stored at his mother’s home.
failed

to

advise

Petitioner also argues that counsel

petitioner

that

he

had

a

valid

statute

of

limitations defense as to Count Two because the transportation
occurred years before and outside the statute of limitations.
Further,

petitioner

argues

that

counsel

failed

to

advise

petitioner that Count Three of the Indictment was deficient because
it failed to allege the use of materials transported.
Petitioner
Agreement

entered

containing

a

an

plea

of

appeal

guilty
waiver

pursuant
with

to

three

exceptions:
(a) the ground that the sentence exceeds the
defendant's applicable guidelines 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.

- 24 -

a

Plea

limited

(Cr. Doc. #45, p. 10.)

None of the substantive arguments fall

within the parameters of the exceptions, and the appeal waiver is
enforceable when a defendant is specifically questioned during the
plea colloquy about the waiver, which is the case here, and
defendant confirms is understanding of it significance.

United

States v. Bokerman, 543 F. App'x 974, 976 (11th Cir. 2013).
Further, petitioner was also specifically advised as to the filing
of a motion to suppress during the colloquy:
THE COURT: All right. In that regard, Mr.
Bokerman, let me ask you that. You understand
that you do have a right -- and I do know that
there was a motion to suppress filed, and the
Court could hear a motion to suppress at -not at this time, but it was scheduled to be
heard. You understand that by entering this
plea, you're giving up your right to bring up
any issues in the motion to suppress or any
issues of a motion to suppress?
DEFENDANT: Yes.
THE COURT: All right. And I want to make sure
that that's what you want to do. Is that what
you want to do in entering a plea today?
(Discussion off record)
DEFENDANT: Yes.
(Cr. Doc. #79, p. 21.)

The issues were not raised on direct

appeal, and the issues will be dismissed pursuant to the appeal
waiver.
B. Ground Two: Sentencing
Petitioner

argues

that

counsel

provided

ineffective

assistance at sentencing by failing to: (1) call and present

- 25 -

“available witnesses” that were the victims in the photographs, or
obtain their affidavits since counsel had contact with the family
and they were willing to assist; (2) present argument regarding
the

effect

and

constitutional

implications

of

the

lengthy

sentence; (3) object to the use of foreign conduct to enhance the
sentencing range, which was not adequately investigated; (4) seek
a

downward

variance

based

both

on

petitioner’s

substantial

assistance with admissions by a sexual predator, and the lesser
harm of the images that did not involve sexual relations and
because there was no distribution; and (5) object to the criminal
history enhancement that was barred under the guidelines.
1. Witnesses
Petitioner argues counsel failed to investigate and present
witnesses concerning the identity and ages, and voluntary actions
of

persons

depicted

in

the

images,

even

though

counsel

had

telephone contact with the family who were willing to assist.

The

Court notes that the government was unable to identify the minor
victims during the investigation despite efforts by agents to
locate such information.

(Cv. Doc. #5, p. 18.)

The government

also states that petitioner did not cooperate with efforts to
identify the minors and any adults who facilitated access to minors
for tourists.

(Cr. Doc. #75, pp. 79, 102.)

Petitioner argues

that the ages of the minor victims could have been established, or

- 26 -

at least disputed, and victim witnesses could have testified that
they were never abused.
At

sentencing,

counsel

referred

to

petitioner’s

friend

Ricardo, and stated that the minors were Ricardo’s children who
came over with him to play and swim, and that the children were
under Ricardo’s control.

(Cr. Doc. #75, pp. 57, 72.)

Counsel

successfully argued that the two level increase for custody, care,
or supervising control of the minor should be eliminated because
the children were always with Ricardo and under his direction and
control.

(Id.,

Agreement,

p.

76.)

petitioner

In

stated

the
that

factual
there

basis

of

were

26

the

Plea

Polaroid

photographs, 23 of which depicted minors (some under the age of
12) engaged in sexually explicit conduct.

(Cr. Doc. #45, p. 14.)

Counsel argued that petitioner had been giving estimates, and that
the Court should instead rely on the expert to determine age.

The

objection was sustained and the Presentence Report was changed
from 20 separate children to only 10 separate children involved in
the Polaroid pictures.

Making a conservative estimate based on

the expert testimony, the Court used a total of 13 victims instead
of 41 for the number of victims in the video.
66-67.)

(Cr. Doc. #75, pp.

The changes had no impact on the application of the

guidelines.

(Id., p. 67.)

Petitioner’s Base Offense Level was a 32.

Picture 1A depicts

four boys, one of which appeared to be 10 years old (V1) who was

- 27 -

involved in the commission of a sexual act while looking at the
camera.

Based on this specific picture, four levels were added

for V1’s age and an additional two levels were added for the lewd
and lascivious nature of the photograph.
17, 39.)

(Presentence Report, ¶¶

Petitioner’s expert testified that she could not state

that V1 was more likely than not actually under the age of 18 based
on his maturity rating.

(Id., p. 22.)

Each subsequent picture

was reviewed and the six level increase was applied if the minor
appeared to have not attained the age of 12 and if the commission
of a sexual act or sexual contact was depicted. 6

The specific

offense characteristics resulted in an overall Adjusted Offense
Level of 38.

An increase of five levels was added based on the

number of units, pursuant to U.S. Sentencing Guidelines Manual §
3D1.4, for a Combined Adjusted Offense Level of 43, before the
acceptance

of

responsibility

and

before

consideration

of

petitioner’s criminal history.
“Which witnesses, if any, to call, and when to call them, is
the epitome of a strategic decision, and it is one that we will
seldom, if ever, second guess.”

Waters v. Thomas, 46 F.3d 1506,

1512 (11th Cir. 1995) (citation omitted).

Petitioner’s “mere

speculation that missing witnesses would have been helpful is

V3 in picture 1A was found to be between the age of 12 and 16,
and therefore only warranted a two level increase.
6

- 28 -

insufficient,” e.g., Streeter v. United States, 335 F. App'x 859,
864 (11th Cir. 2009), to support a finding that counsel’s failure
to call Ricardo or victims equates to ineffective assistance,
Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir. 2000)
(“Considering the realities of the courtroom, more is not always
better.

Stacking defenses can hurt a case.”).

Even assuming that

Ricardo could travel and would have travelled to testify as to his
children’s ages, it is unclear that it would have made an impact
on the guideline calculations, or that the testimony would have
been credible.

Petitioner himself stated “[i]t is very difficult

to determine the age of members of the family because very few
people have birth certificates in the Dominican Republic.

They

are born by midwives and so forth. And for someone to achieve an
ID is very difficult, because a lot of them do not have birth
certificates, and you sort of have to guess as what their age is
and what their actual birth date is.”

(Doc. #75, p. 96.)

There is no indication that the decision not to present
Ricardo was deficient performance by counsel.

The decision to

instead rely on a credible expert to testify regarding the age of
the victims will not be second-guessed based on petitioner’s postsentencing speculation.

The motion will be denied as to this

issue.

- 29 -

2. Issues for Reduction of Sentence
Petitioner argues that counsel failed to raise grounds for a
variance such as petitioner’s substantial assistance, the nature
of

the

images

as

outside

the

heartland,

the

absence

of

any

distribution, and the lesser degree of harm associated with the
photographs.

Petitioner also argues that counsel failed to object

to the use of foreign conduct to enhance petitioner’s sentence
based

on

a

cross-reference

under

U.S.

Sentencing

Guidelines

§2G2.2(c) when there are no police reports of such foreign conduct.
In

the

Plea

Agreement,

the

parties

agreed

and

jointly

recommended to not depart downward from the applicable sentencing
guideline range because it was agreed that no such departure would
be appropriate.
not

to

oppose

(Cr. Doc. #45, p. 4.)
a

two-level

The government also agreed

adjustment

for

acceptance

responsibility, if he agreed to a full debriefing.
4.)

of

(Id., pp. 3-

Petitioner failed to provide the information requested to

help identify any adults involved and the minor victims, despite
knowing the family in question for 10 years, and therefore the
government did not agree to an additional level for acceptance
even though the plea was timely made.
84, 102.)
to

testify

(Cr. Doc. #75, pp. 79, 82,

Counsel argued that petitioner cooperated, and offered
against

an

individual

who

had

been

having

sexual

intercourse with his seven year old daughter, and who pled guilty
as a result of the potential testimony.

- 30 -

(Id., p. 78.)

The Court

sustained the objection to the lack of acceptance and granted a
three-level adjustment for acceptance.
Contrary

to

petitioner’s

current

(Id., p. 84.)
position,

counsel

also

raised the nature and type of photographs as a mitigating factor.
Counsel further addressed the lack of distribution and reiterated
petitioner’s cooperation:
We have . . . you know, in 40 years of doing
this, this is my first case of doing this. And
I -- I'm choking on the words. But these
photographs are not of children being forced
into sexual intercourse, or into fellatio, or
into horrible things that happen with child
pornography. These are people that are holding
their private parts, their male member, and
that's it.
. . .
I have a client who I believe is 66 years old.
You can give him a life sentence for these
photographs, which basically show people
holding their private parts, males holding
their private parts, and . . . . I think that
there has to be -- the whole reason they took
it out of the sentencing guidelines is they're
too onerous. The guidelines are too onerous.
. . .
And the fact of the matter is, he has tried to
cooperate from the very beginning. And we
appreciate
the
three-level
downward
departure, but the fact of the matter is,
these are photographs. These are photographs
taken years ago. These are photographs that .
. . that most people would look at and say
they're nothing.
. . .
You know, again, there's no egregious contact
going on when you have individuals touching

- 31 -

themselves. And we have a limited number of
photographs, we have a limited number of
victims. We don't need to sledgehammer the ant
here. We need to do what is appropriate.
(Id., pp. 53-54, 91, 103.)

The Court noted that petitioner was a

registered sex offender, had priors for similar conduct, and that
he directed the conduct of the children in the videos.
rejected

the

view

that

sentencing petitioner.

the

pictures

(Id., p. 105.)

were

not

The Court

serious

when

There is no basis on the

record that would have supported a substantial assistance finding
for purposes of a downward variance.

The Court finds no deficient

performance of counsel.
Under U.S. Sentencing Guidelines Manual §2G2.2(c), if the
offense involved “causing, transporting, permitting, or offering
or seeking by notice or advertisement, a minor to engage in
sexually explicit conduct for the purpose of producing a visual
depiction of such conduct”, §2G2.1 is applied to enhance the Base
Offense Level to 32.

The government and petitioner agreed that

the Base Offense Level was a 32 in the Plea Agreement based on the
cross-reference.

(Cr. Doc. #45, p. 3.)

The factual basis in the

Plea Agreement established that petitioner travelled several times
to the Dominican Republic, and at the time of his arrest petitioner
admitted

to

taking

nude

photographs

of

children

involved

in

sexually explicit conduct and transporting the photographs to the
United States to keep as his own.

No documents from the Dominican

- 32 -

Republic were required to establish the transportation based on
admissions in petitioner’s Plea Agreement, and therefore there was
no foreign conduct at issue.

This issue is rejected.

Petitioner argues that the 3 criminal history points should
not have been counted because 15 years had passed since his release
from custody.

This argument is rejected.

Under U.S. Sentencing

Guidelines Manual § 4A1.1(a) n.1, a sentence imposed more than 15
years prior to the commencement of the current offense is not
counted unless the incarceration extended into the 15 year period,
and in this case it did.

Petitioner was found guilty and sentenced

on January 19, 1993 to a term of 8 and one-half years of prison.
Although petitioner was released on “shock probation” on April 19,
1993, the term of imprisonment did not expire until December 19,
1998, and the Indictment alleges that the offenses were committed
from an unknown date through on or about September 8, 2011, within
the 15 year period.
3. Length of Sentence
Petitioner

argues

that

counsel

failed

to

present

constitutional arguments against a life sentence, and that counsel
should have presented evidence that petitioner posed no threat
upon

release

Petitioner

given

also

overrepresented

the

argues
because

absence
that

of
the

petitioner

had

any

victim

criminal
committed

complaint.

history
no

offense within 15 years of his 1993 release from custody.

- 33 -

was

federal

On direct appeal, the Eleventh Circuit dismissed petitioner’s
challenge to his sentence in light of the sentence-appeal waiver,
and otherwise found no Eight Amendment violation.

United States

v. Bokerman, 543 F. App'x 974, 977 (11th Cir. 2013).

Petitioner

scored 3 points for his 1993 conviction for gross sexual imposition
in Ohio giving him a Criminal History Category of II.

Petitioner

was ultimately sentenced to the low-end of the applicable guideline
range of 324 to 405 months of imprisonment.
statutory

minimum

mandatory

of

15

years

Count Two carried a
to

40

years

of

imprisonment, and Count Three carried a minimum mandatory of 10
years to 20 years of imprisonment.

“Generally, when a sentence

is within the limits imposed by statute, it is neither excessive
nor cruel.

United States v. Flores, 572 F.3d 1254, 1268 (11th

Cir. 2009) (citing United States v. Moriarty, 429 F.3d 1012, 1024
(11th Cir. 2005)).
The record reflects that the Court considered the factors
under 18 U.S.C. § 3553(a), whether discussed individually or not,
and no procedural error is presented.

(Cr. Doc. #75, p. 104.)

If

there is no procedural error, the substantive reasonableness of
the sentence is reviewed for abuse of discretion and the burden is
on petitioner.
Cir. 2009).

United States v. Flores, 572 F.3d 1254, 1270 (11th

The Court specifically considered the threat posed

by petitioner, that he was a registered sex offender, and the fact
that the crime involved children that were directed to engage in

- 34 -

sexually explicit conduct.

(Cr. Doc. #75, p. 105.)

To the extent

that this issue is available on collateral review, the Court finds
that there is nothing in the record to indicate that the sentence
imposed was grossly disproportionate.

United States v. Farley,

607 F.3d 1294, 1345 (11th Cir. 2010) (collecting cases involving
the sexual abuse of children).

The motion is denied on this basis.

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. #90) 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

- 35 -

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 October, 2017.

Copies:
Counsel of record
AUSA

- 36 -

10th

day