Hyppolite v. United States of America
Filing
15
OPINION AND ORDER denying requests for an evidentiary hearing and the appointment of counsel; granting 10 motion to amend/correct; granting 11 motion to amend/correct; and granting 12 motion to amend/correct to the extent that the argument s were considered; and 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-97-FTM-29CM), 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 9/30/2019. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOPHANEY HYPPOLITE,
Petitioner,
v.
Case No: 2:16-cv-300-FtM-29NPM
Case No. 2:11-CR-97-FTM-29CM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on Petitioner Jophaney
Hyppolite’s (Petitioner or Hyppolite) pro se Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (Cr. Doc. #671; Cv. Doc. #1) 1 and Memorandum of
Law to Support (Cr. Doc. #672; Cv. Doc. #2) filed on April 21,
2016.
The United States filed a Response in Opposition on May 23,
2016, to which Petitioner filed a Reply on June 8, 2016.
Docs. #8; #9).
(Cv.
Petitioner also filed a Sworn Declaration on
September 18, 2017.
(Cv. Doc. #12-5).
For the reasons set forth
below, Petitioner’s § 2255 motion is denied.
Also pending before the Court are Petitioner’s Motion to Amend
(Cv. Doc. #10), Motion for Leave to Amend His Original Pending
1
The Court will refer to the underlying criminal docket, 2:11-cr00097-JES-CM-8, as “Cr. Doc.,” and will refer to the civil docket
as “Cv. Doc.”
Motion to Vacate (Cv. Doc. #11), and Third Amendment to Motion to
Vacate (Cv. Doc. #12).
Hyppolite’s motions to amend are granted
to the extent the Court will consider these claims as set forth
below.
I.
Procedural History
On September 5, 2012, a federal grand jury in Fort Myers,
Florida
returned
charging
offenses.
a
Petitioner
twelve-count
and
six
(Cr. Doc. #282).
Second
Superseding
co-defendants
with
Indictment
various
drug
Count One charged Petitioner and six
others with conspiracy to manufacture, possession with intent to
distribute, and distribution of 280 grams or more of cocaine base,
also known as crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii) and 846.
(Id., pp. 1-2).
In addition to the
conspiracy, Petitioner was charged in Count Six with knowing and
willful distribution and aiding and abetting the distribution of
cocaine base, also known as crack cocaine, on or about June 29,
2011, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18
U.S.C. § 2.
In Count Eleven, Hyppolite was charged with knowing
and willful distribution and aiding and abetting the distribution
of crack cocaine on or about September 27, 2011 in violation of 21
U.S.C.
§
841(a)(1),
(b)(1)(C).
On
September
14,
2012,
the
government filed a notice of intent to enhance Hyppolite’s sentence
- 2 -
under 21 U.S.C. § 851 because he had at least two qualifying prior
drug convictions.
The
Court
(Cr. Doc. #324).
conducted
an
eleven-day
trial.
After
the
government’s case-in-chief, defense counsel moved for judgment of
acquittal on Counts One, Six, and Eleven.
73).
the
(Cr. Doc. #497, pp. 72-
The Court granted the motion as to Count Six only, finding
government’s
witness
did
not
identify
Hyppolite
participant in the controlled buy on June 29, 2011.
84).
a
(Id., pp. 83-
On October 5, 2012, the jury returned a verdict finding
Hyppolite guilty of Counts One and Eleven.
7).
as
(Cr. Doc. #383, pp. 1,
As to Count One, the jury found that the amount of cocaine
base involved in the conspiracy was more than 280 grams.
(Id.,
pp. 2-3).
Hyppolite was sentenced on January 23, 2013. (Cr. Doc. #449).
Because Hyppolite was found guilty of a conspiracy involving more
than 280 grams of cocaine based under 21 U.S.C. § 841(b)(1)(A)(iii)
and had three prior felony drug convictions, he faced a mandatory
term of life imprisonment.
The undersigned sentenced Petitioner
to a term of life imprisonment as to Count One, and 30 years of
imprisonment as to Count Eleven, to be served concurrently.
Doc. #449, p. 2).
(Cr.
In addition, the undersigned imposed a term of
supervised release of ten years as to Count One and six years as
to Count Eleven to run concurrently.
- 3 -
(Id., p. 3).
Petitioner filed a Notice of Appeal on January 27, 2013. (Cr.
Doc. #452).
On direct appeal, Hyppolite raised the following six
issues: (1) there was insufficient evidence to support a conviction
for a single conspiracy under Count One; (2) he was denied due
process due to the particular informants who participated in the
government’s
investigation;
(3)
the
district
court
failed
to
provide a multiple conspiracy jury instruction and submit a special
verdict
for
finding
individual
drug
quantity
attributable
to
Hyppolite; (4) the district court erred in imposing the drug
premises enhancement; (5) the district court erred in imposing the
manager role enhancement; and (6) the government’s 21 U.S.C. § 851
notice was defective, misleading, and unconstitutional.
(See
Appellant’s Br., United States v. Hyppolite, 13-10471 (11th Cir.
Nov. 25, 2013)).
On June 25, 2015, the Eleventh Circuit affirmed
Petitioner’s convictions.
See United States v. Hyppolite, 609 F.
App’x 597, 612 (11th Cir. 2015).
Hyppolite did not petition for
a writ of certiorari with the Supreme Court of the United States.
Now, Hyppolite seeks relief under 28 U.S.C. § 2255.
The
government concedes that he timely filed his § 2255 motion (Cv.
Doc. #8, p. 4), and the Court agrees.
- 4 -
I.
Legal Standards
A. Evidentiary Hearing and Appointment of Counsel
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.
See
id. at 715.
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).
The Court finds that the
record establishes that Petitioner is not entitled to relief and,
therefore, an evidentiary hearing is not required.
Because Petitioner’s motion for an evidentiary hearing is
denied, appointment of counsel is not required under Rule 8(c),
- 5 -
Rules Governing Section 2255 Proceedings for the United States
District
Court.
Petitioner
is
not
appointment of counsel in this case.
otherwise
entitled
to
See Barbour v. Haley, 471
F.3d 1222, 1227 (11th Cir. 2006) (stating there is no Sixth
Amendment
right
to
counsel
in
post-conviction
collateral
proceedings); see also Schultz v. Wainwright, 701 F.2d 900, 901
(11th Cir. 1983) (“Counsel must be appointed for an indigent
federal habeas petitioner only when the interest of justice or due
process so require.”).
Neither the interest of justice nor due
process requires the appointment of counsel here.
B. Ineffective Assistance of Trial and Appellate Counsel
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.
the
result
of
the
See Hinton v. Alabama, 571
U.S. 263, 272-73 (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
- 6 -
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.
Hinton,
quotations and citations omitted).
571
U.S.
at
273
(internal
“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) (stating
courts must look to the facts at the time of counsel’s conduct).
This judicial scrutiny is highly deferential, and the Court adheres
to a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.
See Strickland,
466 U.S. at 689-90.
To be objectively unreasonable, the performance must be such
that no competent counsel would have taken the action.
See Rose
v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); see also 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.
See United States v. Winfield, 960 F.2d 970, 974
- 7 -
(11th Cir. 1992); see also Ladd v. Jones, 864 F.2d 108, 109-10
(11th Cir. 1989).
The same deficient performance and prejudice standards apply
to appellate counsel.
See Smith v. Robbins, 528 U.S. 259, 285-86
(2000); see also Roe, 528 U.S. at 476-77.
If the Court finds there
has been deficient performance, it must examine the merits of the
claim omitted on appeal.
If the omitted claim would have had a
reasonable probability of success on appeal, then the deficient
performance resulted in prejudice.
See Joiner v. United States,
103 F.3d 961, 963 (11th Cir. 1997).
Counsel is not deficient for
failing to raise non-meritorious claims on direct appeal.
See
Diaz v. Sec=y for the Dep=t of Corr., 402 F.3d 1136, 1144-45 (11th
Cir. 2005).
II.
Analysis
Petitioner raises a total of
seven grounds for relief. 2
First, Petitioner argues trial counsel erred in failing to object
to
the
Court’s
imposition
of
two
separate
sentences
for
his
offenses when they were grouped together under U.S.S.G. § 3D1.2(d)
for the purpose of calculating his Sentencing Guidelines range.
2
The government argues Grounds One through Five are procedurally
barred.
(Cv. Doc. #8, pp. 5-6).
The Court disagrees because
claims of ineffective assistance of counsel are not subject to
procedural default. See Massaro v. United States, 538 U.S. 500,
504 (2003).
The Court, therefore, will address the merits of
Hyppolite’s claims.
- 8 -
(Cr. Docs. #671, p. 4; #672, pp. 3-4; Cv. Doc. #1, p. 4; #2, pp.
3-4).
Second, Petitioner argues (a) trial and appellate counsel
failed to assert that the district court erred in failing to find
the amount of crack cocaine attributable to him for sentencing
purposes and (b) trial counsel failed to argue the evidence was
insufficient to find the entire amount of crack cocaine involved
in the conspiracy was attributable to him.
(Cr. Docs. #671, pp.
5-6; #672, pp. 4-5; Cv. Docs. #1, pp. 5-6; #2, pp. 4-5; #11).
Third, Hyppolite asserts trial counsel was ineffective in failing
to object to the calculation of his criminal history points. 3 (Cr.
Docs. #671, p. 7; #672, pp.5-6; Cv. Doc. #1, p. 7; #2, pp. 5-6).
Fourth, Petitioner claims appellate counsel erred in failing
to assert on appeal that there was insufficient evidence to convict
him under Count Eleven.
(Cr. Doc. #671, pp. 8-9; #672, pp. 6-7;
Cv. Doc. #1, pp. 8-9; #2, pp. 6-7).
Fifth, Petitioner contends
appellate counsel failed to raise on appeal that Hyppolite’s mere
presence in the illegal activities was insufficient to sustain his
conviction for conspiracy under Count One.
8; Cv. Doc. #2, pp. 7-8).
(Cr. Doc. #672, pp. 7-
Sixth, Petitioner claims, pursuant to
Mathis v. United States, 136 S. Ct. 2243 (2016), that his prior
conviction under Fla. Stat. § 893.13(1) does not qualify him as a
3
Petitioner appears to abandon Ground Three in his Reply. (Cv.
Doc. #9, p. 5). Out of the abundance of caution, the Court will
address the merits of this ground for relief.
- 9 -
career offender for purposes of sentencing, and thus he must be
resentenced.
(Cv. Doc. #10).
Lastly, he argues trial counsel
rendered ineffective assistance during plea discussions.
Doc. #12).
(Cv.
The Court addresses each in turn.
A. Ground One:
Sentences
Failure
to
Object
to
Imposition
of
Separate
Petitioner first argues defense counsel rendered ineffective
assistance in failing to object to the District Court’s imposition
of two separate sentences for his offenses of convictions when the
offenses were grouped under U.S.S.G. § 3D1.2(d) to calculate his
Guidelines range.
(Cr. Docs. #671, p. 4; #672, pp. 3-4; Cv. Doc.
#1, p. 4; #2, pp. 3-4).
He also states appellate counsel erred in
failing to assert this argument on appeal.
(Cr. Docs. #671, p. 4;
#672, pp. 3-4; Cv. Doc. #1, p. 4; #2, pp. 3-4).
The government
maintains, in part, that Petitioner cannot show prejudice because
he confronted a mandatory life sentence under Count One, which
superseded his otherwise-applicable Guidelines range.
#8, pp. 8-10).
(Cv. Doc.
The Court agrees with the government.
Although Hyppolite’s conspiracy and distribution convictions
were
grouped
for
the
purposes
of
calculating
his
Sentencing
Guidelines range, the Court imposed separate sentences as to each
conviction.
Petitioner says the imposition of two sentences
amounted to procedural error.
former
Fifth
Circuit
has
The Court disagrees.
admonished
- 10 -
judges
to
Indeed, the
avoid
general
sentences
because
it
is
sentence on each count.
961,
964
(5th
Cir.
more
desirable
to
impose
a
separate
See United States v. Johnson, 588 F.2d
1979)
(citation
omitted)
(“We
reiterate,
however, that such general sentences are bad business, leaving
all, including this Court, in a state of uncertainty as to just
what has been done.
All the defendant, probation officers, this
Court, and prison/parole authorities should be informed of the
specific sentence on each count[.]”).
Petitioner’s claim that
this Court should have imposed a general (grouped) sentence lacks
any foundation in the law and, as a result, counsel was not
ineffective for failing to make this objection.
Hyppolite has also failed to demonstrate prejudice.
government
points
out,
Hyppolite
faced
a
mandatory
As the
minimum
sentence of life imprisonment as to Count One, which supplanted
his otherwise-applicable Guidelines range.
10).
What
is
more,
Petitioner
fails
(Cv. Doc. #8, pp. 8to
allege,
let
alone
demonstrate, how his sentence would have been more favorable had
counsel asserted this objection.
Because the Court finds no
ineffective assistance of trial or appellate counsel, Ground One
is denied.
B. Ground Two:
Quantity of Crack Cocaine
Petitioner asserts two challenges under Ground Two.
First,
Petitioner argues that both trial and appellate counsel failed to
- 11 -
assert
that
the
individualized
District
finding
as
Court
to
erred
the
in
amount
attributable to him for sentencing purposes.
failing
of
to
crack
make
an
cocaine
(Cr. Docs. #671, pp.
5-6; #672, pp. 4-5; Cv. Docs. #1, pp. 5-6; #2, pp. 4-5).
Second,
he contends trial counsel erred in failing to argue the evidence
was insufficient to find he conspired to manufacture, possess with
intent to distribute, and distribute more than 280 grams of crack
cocaine. 4
(Cv. Doc. #11).
The Court finds both challenges fail
for the following reasons.
First, the jury found beyond a reasonable doubt that the
amount of cocaine base involved in the conspiracy under Count One
exceeded 280 grams.
(Cr. Doc. #383, p. 3).
This determination,
in addition to the Court’s finding of Hyppolite’s prior felony
drug convictions, made him subject to a statutory mandatory minimum
sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). 5
Considering the jury’s determination that Petitioner’s conspiracy
involved more than 280 grams of cocaine base (and this Court’s
finding of his three prior felony drug convictions), he was not
4
Petitioner asserts his second challenge under Ground Two in his
second motion to amend. (Cv. Doc. #11). The Court grants this
motion to the extent it addresses his claim above.
5
Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that, other
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury and proved beyond a reasonable doubt.
- 12 -
eligible for a sentence less than life imprisonment.
Petitioner
has, therefore, failed to show any prejudice.
Next, the Eleventh Circuit rejected similar arguments on
direct appeal.
First, Hyppolite’s co-conspirator, Neheme Ductant,
argued the Court erred in failing to make an individualized finding
as
to
the
sentencing.
amount
of
crack
cocaine
attributable
to
him
at
(See Appellant’s Br., United States v. Hyppolite, 13-
10471 (11th Cir. Nov. 25, 2013)).
Second, Hyppolite argued that
there was insufficient evidence to support the jury’s drug and
quantity
verdict.
(See
Appellant’s
Br.,
United
States
v.
Hyppolite, 13-10471 (11th Cir. Nov. 25, 2013)).
The Eleventh
Circuit
to
found
(1)
the
government
did
not
have
show
the
particular quantity of drugs attributable to each defendant for
purposes
of
establish
a
conspiracy
and
(b)
the
evidence
sufficient to establish the quantity of drugs at issue.
was
See
Hyppolite, 609 F. App’x at 603 n.4 (citing United States v.
Curbelo, 726 F.3d 1260, 1268-1271 (11th Cir. 2013)).
Lastly, to the extent Petitioner alleges the evidence was
insufficient to find he conspired to manufacture, possess with
intent to distribute, and distribute 280 grams or more of crack
cocaine,
the
Court
disagrees.
“To
convict
a
defendant
of
conspiracy under 21 U.S.C. § 846, the Government must prove (1) an
agreement existed between the defendant and at least one other
- 13 -
person, (2) the defendant knew the object of the conspiracy and
the
object
was
illegal,
and
(3)
the
defendant
voluntarily participated in the conspiracy.”
1269.
knowingly
and
Curbelo, 726 F.3d at
Notably, the evidence does not need to show that a defendant
himself manufactured, possessed with intent to distribute, and
distributed 280 grams or more of crack cocaine.
Salinas v. United States, 522 U.S. 52, 63 (1997).
See id. (citing
“Instead, the
Government only needed to prove Defendant joined a conspiracy that
had the ‘object’ of manufacturing or possession with intent to
distribute more than” 280 grams of crack cocaine.”
U.S.C. § 846).
Id. (citing 21
“The partners in the criminal plan must agree to
pursue the same criminal objective and may divide up the work, yet
each is responsible for the acts of each other.”
Id. (citations
omitted) (emphasis added).
At trial, Hyppolite was identified as a mid-level manager of
the drug trafficking organization (“DTO”) who oversaw and sold
crack cocaine from the Kimble Drive apartment, sold crack cocaine
from the Breeze Drive apartment, and recruited other members.
In
July 2011, law enforcement intercepted phone calls with a number
associated with co-conspirator, Rick Jean.
Those calls concerned
communications between Hyppolite and several other co-conspirators
about crack cocaine, money, and the like.
- 14 -
In
April
2011,
confidential
informant,
Beth
(“Torta”) began purchasing cocaine from DTO members.
direct
contact
with
Hyppolite
and
other
members
purchasing crack cocaine from them for over one year.
Ann
Torta
Torta had
and
began
On May 26,
2011, Torta purchased $100 worth of crack cocaine from member,
Rick Jean.
Hyppolite was also present during the transaction.
Thereafter, on June 29, 2011, Torta purchased $100 worth of crack
cocaine from Hyppolite at the Kimble Drive distribution house.
On
October 18, 2011, law enforcement executed search warrants at
multiple residences associated with the conspiracy.
Hyppolite was
found at the Kimble Drive location with, among other things, two
grams of crack cocaine, a crack pipe, and $956.
Torta specifically testified that she had observed “ounces,
and ounces, and ounces, and ounces” of crack cocaine at the traps
over time.
(Cr. Doc. #494, p. 212).
Michael Dupin, who joined
the conspiracy in or about June 2011 (which was after Hyppolite
claims he joined it) testified that, during his three or four
months working at one of the traps, he saw a total of 11 or 12
cookies of cocaine and, at least half a dozen times, observed
multi-ounces of crack cocaine. Jennifer Sander, a low-level member
of the conspiracy, testified that she personally had sold thousands
of dollars’ worth of crack cocaine and estimated that she was
personally responsible for distributing more than ten ounces of
- 15 -
crack cocaine.
Given the quantities distributed by the lower-
level individuals, it is reasonably foreseeable that Hyppolite
conspired to manufacture, possess with intent to distribute, and
distribute more than 280 grams of crack cocaine given his role in
the conspiracy.
His second challenge is, therefore, rejected.
In
sum, considering all the above, the Court finds Ground Two is
denied.
C. Ground Three:
Failure to Object to Criminal History Points
Under Ground Three, Petitioner argues trial counsel rendered
ineffective assistance of counsel in failing to object to the
calculation of his criminal history points under the Presentence
Investigation Report.
(Cr. Docs. #671, p. 7; #672, pp.5-6; Cv.
Doc. #1, p. 7; #2, pp. 5-6).
Hyppolite alleges he should have not
received points for certain offenses because the sentences ran
concurrent or he did not serve enough prison time for specific
offenses to count.
The government responds that Petitioner’s
argument fails for two reasons.
(Cv. Doc. #8, p. 12-13).
First,
the government states regardless of his total criminal history
points, his Criminal History Category was required to be a Category
VI given his career offender status.
(Id.).
Second, and most
important, the government argues an objection to the calculation
of
Hyppolite’s
Guidelines
range
would
have
been
pointless
considering he faced a mandatory sentence of life imprisonment.
- 16 -
(Id., p. 12). The Court agrees and finds no ineffective assistance
of counsel.
First,
regardless
of
his
total
criminal
history
points,
Hyppolite’s Criminal History Category was mandated to be VI under
the Sentencing Guidelines.
See U.S.S.G. § 4B1.1(b) (“A career
offender’s criminal history category in every case under this
subsection shall be Category VI.”). Second, due to his three prior
felony drug convictions, he faced a mandatory minimum sentence of
life imprisonment, which, as stated above, replaced his Guidelines
range. Thus, for these reasons, counsel’s objection to Hyppolite’s
criminal history points would have been futile in an effort to
affect his term of imprisonment.
As a result, Petitioner has
failed to set forth a claim for ineffective assistance of trial or
appellate counsel.
D. Ground Four:
Ground Three is, therefore, denied.
Insufficient Evidence to Support Count Eleven
Petitioner maintains counsel erred in failing to assert on
appeal there was insufficient evidence to convict him of aiding
and abetting the distribution of cocaine under Count Eleven.
(Cr.
Doc. #671, pp. 8-9; #672, pp. 6-7; Cv. Doc. #1, pp. 8-9; #2, pp.
6-7). The government argues Ground Four fails because the evidence
showed he distributed crack cocaine and it was unnecessary for
Petitioner to be found guilty of both distribution and aiding and
- 17 -
abetting under Count Eleven.
(Cv. Doc. #8, pp. 13-14).
The Court
agrees with the government.
Count
Eleven
charged
that
Petitioner
did
“knowingly
and
willfully distribute and aid and abet the distribution” of crack
cocaine on or about September 27, 2011.
(Cr. Doc. #282).
It was
not necessary for Hyppolite to be found guilty of both distribution
and aiding and abetting.
See United States v. Mozie, 752 F.3d
1271, 1283-84 (11th Cir. 2014) (internal citations and quotations
omitted) (superseded by statute on other grounds) (“[W]e have held
again and again that where an indictment charges in the conjunctive
several means of violating a statute, a conviction may be obtained
on proof of only one of the means.”).
Petitioner does not dispute that he distributed crack cocaine
on September 27, 2011. The Court finds the evidence was sufficient
to convict him of distribution under Count Eleven.
defendant
government
of
distribution
must
prove
of
three
a
controlled
elements:
“(1)
possession; and (3) intent to distribute.”
To convict a
substance,
the
knowledge;
(2)
United States v.
Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014) (citation omitted).
The evidence was sufficient for a reasonable jury to conclude
that Hyppolite distributed crack cocaine under Count Eleven.
At
trial,
on
Jennifer
Nicole
Sander
(“Sander”)
testified
that
September 27, 2011, she, along with Torta, purchased crack cocaine
- 18 -
from “Mike Larry” at a shed on Kimble Drive.
258-260).
(Cr. Doc. #491, pp.
Torta corroborated this testimony at trial, testifying
that she purchased crack cocaine from “Bo” on September 27, 2011,
in the presence of Sander.
(Cr. Doc. #495, p. 164).
identified “Bo” and “Mike” as Hyppolite.
(Id., p. 147).
Torta
Because
the evidence was sufficient to convict Hyppolite of distribution
under Count Eleven, Petitioner fails to show any error by trial or
appellate counsel.
E. Ground Five:
Under
Accordingly, Ground Four is denied.
Insufficient Evidence to Support Count One
Ground
Five,
Petitioner
contends
appellate
counsel
rendered ineffective assistance of counsel by failing to assert on
appeal that his mere presence at the scene of illegal activity was
insufficient to sustain a conviction for conspiracy under Count
One.
(Cr. Doc. #672, pp. 7-8; Cv. Doc. #2, pp. 7-8).
The
government asserts Ground Five fails because (a) the sufficiency
of the evidence as related to Count One was raised and resolved on
direct appeal and (b) Petitioner’s conclusory allegations are
inadequate to state a claim for ineffective assistance of counsel.
(Cv. Doc. #8, pp. 14-15).
For the reasons below, the Court finds
Ground Five is due to be denied.
First, the Court already rejected defense counsel’s argument
at trial that Hyppolite’s mere presence in the illegal activity
did not make him an active part of the conspiracy.
- 19 -
(Cr. Doc. #497,
pp. 72, 82).
Still unpersuaded by Hyppolite’s argument, the Court
reiterates its finding that the evidence was sufficient to justify
a guilty verdict as to Petitioner under Count One.
(Id., p. 82).
Second, appellate counsel’s decision to forego the “mere
presence” argument was reasonable since there was ample evidence
of the conspiracy in this case.
The Eleventh Circuit specifically
found “unavailing” the argument that the evidence was insufficient
to establish a single conspiracy.
n.4.
While
Petitioner
is
Hyppolite, 609 F. App’x at 603
correct
that
mere
presence
is
insufficient to establish a conspiracy, United States v. Jimenz,
564 F.3d 1280, 1285 (11th Cir. 2009), the evidence presented at
Petitioner’s trial indicated much more than mere presence. Indeed,
the evidence introduced at trial showed Hyppolite sold crack
cocaine from more than one trap house and had many intercepted
communications with other co-conspirators about crack cocaine,
money,
and
related
matters.
Additionally,
upon
Hyppolite’s
arrest, law enforcement found, among other things, crack cocaine,
drug paraphernalia, and $956.
The jury was also specifically instructed that mere presence
was not enough:
But simply being present at the scene of an
event or merely associating with certain
people and discussing common goals and
interests does not establish proof of a
conspiracy. Also a person who does not know
about a conspiracy but happens to act in a way
- 20 -
that advances some purpose of one does not
automatically become a conspirator.
(Cr. Doc. #378, pp. 12-13).
The jury found that a conspiracy
existed and Petitioner was a participant, and the Court does not
find
error
in
the
attorney’s
choice
of
appellate
issues.
Accordingly, Ground Five is denied.
F. Ground Six:
Validity of Prior Drug Convictions for Sentence
Enhancement under U.S.S.G. § 4B1.1
Petitioner asserts Ground Six in his first motion to amend
his § 2255 motion.
(Cv. Doc. #10).
As stated above, the Court
grants this motion to the extent it addresses his argument below.
In relying upon Mathis v. United States, 136 S. Ct. 2243
(2016), Petitioner argues that his Florida convictions for the
sale, manufacture, delivery, or possession of cocaine do not
qualify as “controlled substance offense[s]” under U.S.S.G. §
4B1.1(a).
(Cv. Doc. #10).
The Court disagrees.
Under the 2014 United States Sentencing Guidelines Manual, a
defendant convicted of a controlled substance offense is a career
offender under § 4B1.1(a) if he “has at least two prior felony
convictions of . . . a controlled substance offense.”
Crucial
here, the Guidelines define a “controlled substance offense” as:
an offense . . . under . . . state law,
punishable
by
imprisonment
for
a
term
exceeding one year, that prohibits the
manufacture, import, export, distribution or
dispensing of a controlled substance . . . or
the possession of a controlled substance . .
- 21 -
. with intent to manufacture, import, export,
distribute, or dispense.
U.S.S.G. § 4B1.2(b).
Hyppolite’s Base Offense Level was a 32 based upon the jury’s
finding that the cocaine base involved in the conspiracy exceeded
280 grams.
(Cr. Doc. #501, p. 20).
Petitioner was deemed a career
offender because he was at least 18 years-old when he committed
the underlying controlled substance offenses, and he had the
following prior felony convictions for a controlled substance
offense:
•
Sale or Delivery of Cocaine, in the Circuit
Court, Twentieth Judicial Circuit, in Lee
County, Florida (Case No. 07-CF-19769); and
•
Possession
of
Cocaine
with
Intent
to
Sell/Manufacture/Deliver,
in
the
Circuit
Court, Eleventh Judicial Circuit, in Dade
County, Florida (Case No. F08-23084B)
As a career offender, Hyppolite’s Total Offense Level became 37
and his Criminal History Category was a VI.
(Id., p. 30).
Petitioner alleges that, under Mathis, his prior convictions for
the sale, manufacture, delivery, or possession of cocaine under
Fla.
Stat.
offense[s]”
§
893.13
and,
do
not
therefore,
qualify
he
offender sentencing enhancement.
is
as
not
“controlled
eligible
for
substance
a
(Cv. Docs. #10; #11).
Six fails for two reasons.
- 22 -
career
Ground
First, Hyppolite’s reliance on Mathis is misplaced.
This Court
has already held that “[n]othing in Mathis . . . suggests that the
sale of cocaine under Florida Statute § 893.13 is no longer a
serious drug offense under § 4B1.2.”
Alterma v. United States,
No. 2:16-CV-450-FTM-38CM, 2017 WL 3537527, at *3 (M.D. Fla. Aug.
17, 2017); see also Ceasar v. United States, No. 2:17-CV-308-FTM38MRM, 2018 WL 1964197, at *4-5 (M.D. Fla. Apr. 26, 2018) (citing
United States v. Pridgeon, 853 F.3d 1192, 1197-98 (11th Cir. 2017);
United States v. Hill, 652 F. App’x 835, 836 (11th Cir. 2016)).
The Eleventh Circuit has held an offense under Fla. Stat. § 893.13
qualifies as a predicate “controlled substance offense” for career
offender status pursuant to U.S.S.G. § 4B1.2(b). See United States
v.
Smith,
775
F.3d
1262,
1268
(11th
Cir.
2014).
Because
Petitioner’s prior conviction was a serious drug offense, the Court
finds that Hyppolite’s Guidelines range was properly calculated.
Thus, there was no deficient performance by either counsel.
Second, the Court finds Petitioner has failed to show prejudice
because his mandatory minimum sentence of life imprisonment under
Count
One
supplanted
his
Guidelines
calculation.
He
has,
therefore, failed to show a reasonable probability that he would
have
received
a
more
favorable
Consequently, Ground Six is denied.
- 23 -
sentence
under
Mathis.
G. Ground Seven:
Ineffective Assistance of Counsel During Plea
Discussions
Lastly, Petitioner asserts Ground Seven in his third motion
to amend his § 2255 motion and sworn declaration.
pp. 4-7; #12-5).
(Cv. Doc. #12,
As the Court stated above, Petitioner’s third
motion to amend is granted to the extent Hyppolite’s claim is
discussed below.
Under Ground Seven, Petitioner asserts defense counsel did
not
adequately
explain
his
potential
sentencing
before he pled not guilty and proceeded to trial.
consequences
(Id.).
In
particular, Hyppolite asserts that, when the government filed its
21 U.S.C. § 851 notice to enhance Hyppolite’s sentence, defense
counsel told him he did not qualify for a sentence enhancement of
mandatory life imprisonment because he needed at least three prior
felony drug convictions (although the statute only required two).
(Id.).
Even
assuming
defense
counsel
performed
deficiently,
Court finds Hyppolite has failed to show prejudice.
the
“To establish
prejudice based on ineffective assistance in deciding whether to
plead guilty or go to trial, a defendant must show that there is
a reasonable probability that, but for counsel’s errors, he would
. . . have pleaded guilty and would [not] have insisted on going
- 24 -
to trial.”
Pericles v. United States, 567 F. App’x 776, 781-782
(11th Cir. 2014) (internal citation and quotation marks omitted).
Petitioner has not demonstrated prejudice because he cannot
show a reasonable probability he would have entered a guilty plea
if
counsel
consequences.
had
properly
informed
him
of
his
sentencing
First, Petitioner makes conflicting statements as
to whether he actually would have entered a straight plea.
At one
point, he says he informed his lawyer he wanted to make a plea.
(Cv. Doc. #12-5).
Then, he states he told defense counsel he was
willing to plea, wanted counsel to see about a plea, and a plea
would have been accepted since it would have notified the Court
and government he would have accepted responsibility prior to
trial. (Cv. Docs. #12, p. 4; #12-5) (emphasis added). Petitioner’s
statements are contradictory and unpersuasive.
Second, Petitioner’s “after the fact testimony concerning his
desire to plead, without more, is insufficient to establish that
but
for
counsel’s
alleged
accepted the plea offer.”
advice
or
inaction,
he
would
have
Diaz, 930 F.2d at 835 (rejecting
defendant’s claim he would have accepted a plea agreement when he
had
not
indicated
conviction).
any
desire
to
plead
guilty
prior
to
his
Although Petitioner says he would have pled guilty
instead of insisting on proceeding to trial, he strongly advocated
- 25 -
his innocence at trial (and on appeal) and did not indicate he was
willing the plead otherwise.
Third, Petitioner fails to cite or provide any evidence
showing he expressed a desire to enter a straight plea prior to
filing his third motion to amend his § 2255 motion.
The only
evidence Petitioner has offered to support his claim that he would
have entered an open plea is his own self-serving statements, which
the Eleventh Circuit has held is insufficient, by itself, to show
prejudice.
See Chun Hei Lam v. United States, 716 F. App’x 850,
853 (11th Cir. 2017) (citing Diaz, 903 F.2d at 835)).
Besides his
“after
to
the
fact
testimony,”
Hyppolite
has
failed
show
a
reasonable probability that, but for his counsel’s errors, he would
have
entered
agreement.
a
straight
plea
without
Diaz, 930 F.2d at 835.
the
benefit
of
a
plea
Considering all the above, the
Court finds Ground Seven does not warrant relief.
Accordingly, it is now
ORDERED:
1. Petitioner Jophaney Hyppolite’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody (Cr. Doc. #671; Cv. Doc. #1)
is DENIED.
2. Petitioner’s requests for an evidentiary hearing and the
appointment of counsel are DENIED.
- 26 -
3. Petitioner’s
Motion
to
Amend
Petitioner’s
Motion
to
Vacate (Cv. Doc. #10), Motion for Leave to Amend His
Original Pending Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #11),
and Third Amendment to Motion to Vacate (Cv. Doc. #12)
are GRANTED to the extent that the argument(s) were
considered above.
4. 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.
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.”
28 U.S.C. § 2253(c)(B)(2).
To make such
a showing, Petitioner “must demonstrate that 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.
- 27 -
322, 336 (2003) (citations omitted).
requisite
showing
in
these
Petitioner has not made the
circumstances.
Finally,
because
Petitioner is not entitled to a certificate of appealability, he
is not entitled to appeal in forma pauperis.
DONE and ORDERED in Fort Myers, Florida this
September, 2019.
Copies:
All Parties of Record
- 28 -
30th
day of
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