Sander v. USA

Filing 12

OPINION AND ORDER dismissing 2 Motion to vacate/set aside/correct sentence (2255) as untimely, and alternatively denying as without merit. 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 7/1/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JENNIFER NICOLE SANDER,
Petitioner,
v.

Case No: 2:16-cv-663-FtM-29UAM
Case No. 2:11-CR-97-FTM-29CM

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.
#680) 1 filed on August 29, 2016.

The government filed a Response

in Opposition to Motion (Cv. Doc. #6) on October 28, 2016.

The

Court finds that an evidentiary hearing is not required.
I.
On September 28, 2011, a federal grand jury in Fort Myers,
Florida returned a twelve-count Indictment (Cr. Doc. #3) charging
petitioner and others with conspiracy to manufacture, to possess
with intent to distribute and the distribution of 28 grams or more
of crack cocaine (Count One).

1

Petitioner was also charged with

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.”

co-defendant

Jophaney

Hyppolite

on

a

substantive

distribution of crack cocaine (Count Twelve).

count

of

On April 24, 2012,

petitioner ratified a Plea Agreement (Cr. Doc. #219) in open court,
which included a provision for three levels for acceptance of
responsibility and an agreement to cooperate.

On April 25, 2012,

petitioner’s plea of guilty pursuant to the Plea Agreement was
accepted.
On

(Cr. Doc. #221.)

October

15,

2012,

the

government

filed

a

Motion

for

Downward Departure of Defendant’s Sentence Based Upon Substantial
Assistance (Cr. Doc. #395) based on petitioner’s testimony in front
of the grand jury and testimony during the trial of her codefendants.

The

presentence

report

reflects

that

petitioner

denied ever possessing a firearm, and that the government believed
that the “silencer” was a flash suppressor, but that it had no
information that petitioner possessed a firearm.
¶ 45.)

(Cr. Doc. #641,

Two levels were added because members of the conspiracy

possessed

weapons.

specifically

objected

(Id.,
to

¶

62.)

paragraphs

petitioner never possessed any guns.

Counsel
45

and

62,

for

defendant

arguing

that

The objection was overruled.

(Id., Addendum, p. 31.)
Petitioner was found to have been involved in more than 112
grams of cocaine base, but less than 196 grams of cocaine base
giving her a Base Offense Level of 28.

After receiving 3 levels

for acceptance of responsibility, petitioner’s Adjusted Offense

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Level was 27.

Petitioner was found to be a career offender because

she was 29 years old when she committed the offense, the offenses
of

conviction

were

for

controlled

substance

offenses,

and

petitioner had at least two qualifying prior felony convictions 1
bring her Total Enhanced Offense Level to 34.

(Id., ¶ 67.)

When sentencing petitioner, the Court found that her criminal
history of Category VI overstated the seriousness of her criminal
history and departed down to a criminal history category V.

The

Court also granted the government’s motion, and departed six
levels.

After considering the advisory recommendations of the

United States Sentencing Guidelines and all the factors identified
in 18 U.S.C. § 3553(a)(1)-(7), the Court sentenced petitioner to
a term of imprisonment of 130 months as to each count, each count
to

be

served

release.

concurrently,

(Cr. Doc. #396.)

followed

by

a

term

of

supervised

Judgment (Cr. Doc. #403) was filed on

October 16, 2012.
Petitioner did not appeal to the Eleventh Circuit, and the
conviction became final 14 days after the Judgment on October 30,
2012.

See Mederos v. United States, 218 F.3d 1252, 1253 (11th

Cir. 2000).

1

The previous convictions included the sale or delivery of cocaine
in Lee County, Florida, and possession of a controlled substance
with intent to sell in Lee County, Florida. (Doc. #641, ¶ 67.)

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II.
Federal prisoners whose convictions became final after April
24, 1996, the effective date of The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), have one year from the latest
of any of four events to file a § 2255 Motion:
(1) the date on which
conviction becomes final;

the

judgment

of

(2) the date on which the impediment to making
a motion created by governmental action in
violation of the Constitution or laws of the
United States is removed, if the movant was
prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if
that right has been newly recognized by the
Supreme
Court
and
made
retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the
claim or claims presented could have been
discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f).

Giving petitioner the benefit of the mailbox

rule 2, the motion under § 2255 was placed into the prison mail
system on or about June 5, 2016, the date it was signed. 3
Doc. #2, p. 6.)

(Cv.

In this case, petitioner would have had until

2

“[A] prisoner's pro se § 2255 motion is deemed filed the date it
is delivered to prison authorities for mailing.” Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citation
omitted).
3

The motion was not docketed until August 29, 2016.

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October 30, 2013, under Section 2255(f)(1), to have filed her
motion.

Clearly,

the

motion

is

untimely

from

the

date

petitioner’s conviction became final, and is due to be dismissed
for this reason alone.

28 U.S.C. § 2255(f)(1).

The lockdown in

2016, does not explain the intervening three years that had already
passed after the deadline.

The motion will be dismissed as

untimely.
III.
In Ground One, petitioner argues that there was a violation
of her due process rights because the U.S. Supreme Court has
declared the “residual clause” as vague and unconstitutional.
Petitioner does not specify the decision at issue in the 2255
motion, but in the motion to accept the 2255, petitioner indicated
that she “was completing [her] motion to file for relief on the
‘Johnson” case’”, and she knew the deadline but she was on lock
down pending transfer.
To

the

extent

(Cv. Doc. #1.)

that

petitioner

seeks

to

file

her

motion

pursuant to Section 2255(f)(3) based on the decision in Johnson,
and its retroactive application by Welch v. United States, 136 S.
Ct. 1257 (2016) to collateral review, petitioner’s motion is due
to be denied.
that

the

In Johnson, the United States Supreme Court held

Armed

Career

unconstitutionally vague.

Criminal

Act’s

residual

clause

is

Since petitioner’s sentence was not

enhanced under the ACCA, Johnson does not apply to extend the

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statutory time limitation of one year from the date petitioner’s
conviction became final, and petitioner’s motion is also timebarred under Section 2255(f)(3).
IV.
Alternatively, both Grounds Two and Three are based on claims
of ineffective assistance of counsel.
ineffective

assistance

of

counsel,

To prevail on a claim of
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.
263,

134

S.

Ct.

1081,

1087-88

the

result

of

the

Hinton v. Alabama, 571 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).
In Ground Two, petitioner argues that counsel was ineffective
for failing to file a notice of appeal when she requested that he
do so.

Petitioner provides no memorandum of law or factual support

regarding a specific conversation wherein she expressed a desire

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to file a notice of appeal.
argument

that

she

asked

Even if petitioner could support the
that

a

notice

of

appeal

be

filed,

petitioner waived her right to appeal.
A waiver provision in a plea agreement is valid if made
knowingly and voluntarily.

United States v. Weaver, 275 F.3d

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

To establish that the waiver

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

(1)

the

district

court

specifically

questioned

the

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

United States v. Johnson, 541

F.3d 1064, 1066 (11th Cir. 2008).

Petitioner’s written Plea

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

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defendant is released from his waiver and may
appeal the sentence as authorized by Title 18,
United States Code, Section 3742(a).
(Cr. Doc. #219, p. 13) (emphasis in bold added).

Petitioner

initialed each page and signed the last page of the agreement.
(Cr. Doc. #227, p. 6.)

Petitioner stated that she read and signed

the Plea Agreement after discussing it with her attorney.

(Id.,

pp.

judge

6-7.)

During

the

plea

colloquy,

the

magistrate

specifically reviewed the waiver provision on page 13 of the Plea
Agreement:
THE COURT: Now, under some circumstances, you
and the government have a right to appeal the
sentence in your case; but, in the plea
agreement, you have limited your rights to
appeal.
Basically, you're saying that you agree that
the Court does have the jurisdiction and
authority to impose any sentence up to the
statutory maximum, and that you are waiving
your 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 sentence exceeds your
applicable guideline range as determined by
the Court, the ground that the sentence
exceeds the statutory maximum penalty, or the
ground that the sentence violates the 8th
Amendment to the Constitution. But if the
government does appeal your case -- the
sentence in your case, then you would have the
right to appeal the sentence also.
Do you understand that?
THE DEFENDANT: Yes, ma’am.

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(Id., p. 14.)

Petitioner waived her right to appeal voluntarily

and knowingly, and responded that she understood the waiver.

This

ground is without basis.
In

Ground

Three,

petitioner

argues

that

counsel

was

ineffective for failing to challenge the gun enhancement when she
never possessed a firearm.

This is incorrect.

Despite knowing

“what the guidelines manual says”, and “what the case law says,”
counsel argued against the enhancement:
So, based upon that, I mean, I think you're
going to go ahead, given the facts of this
case, given the case law, you're going to
uphold the two-level increase for the gun; but
if, in fact, you are believing what I'm
telling you, that she never was actually in
possession of a gun, maybe we can kind of get
around this a little bit, so that she doesn't
not only get barred from the drug program, but
if you have that in your pre-sentence
investigation, it bars you from a lot of
different programs once you're within the
Bureau of Prisons.
But the -THE COURT: The difficulty is that not only did
she know that the co-defendants possessed
firearms during the course of this conspiracy,
but -- I remember the taped conversation of
your client, because I was surprised when
she's on the tape saying that she possessed a
.22 with a silencer. So, I mean, she might
have been lying to her drug dealing buddies,
but she's on that tape saying she had a firearm
and it had a silencer.
MR. POTTER: I understand. And we heard it.
(Doc. #683, pp. 5, 7.)

Again, this ground is without merit.

Accordingly, it is hereby

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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. #680) is DISMISSED as untimely, and
alternatively denied as without merit.
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.”

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.
322, 336 (2003)(citations omitted).

Petitioner has not made the

requisite showing in these circumstances.

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Finally, because Petitioner is not entitled to a certificate
of appealability, she is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
July, 2019.

Copies:
Petitioner
AUSA

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1st

day of