Hood v. United States of America

Filing 14

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. 2:14-cr-20-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 4/15/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LORENZO D. HOOD,
Petitioner,
v.

Case No: 2:18-cv-346-FtM-29CM
Case No. 2:14-CR-20-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.
#327 ) 1 and a supporting Memorandum of Law (Cv. Doc. #2), both
filed on May 17, 2018.

The government filed a Response in

Opposition to Motion (Cv. Doc. #7) on July 3, 2018, and petitioner
filed a Reply (Cv. Doc. #11) on August 13, 2018.

For the reasons

set forth below, petitioner’s motion is denied.
I.
On March 5, 2014, a federal grand jury in Fort Myers, Florida
returned a five-count Indictment (Cr. Doc. #3), and on May 14,

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.”

2014, the grand jury returned a nine-count Superseding Indictment
(Cr. Doc. #31) against petitioner Lorenzo D. Hood (petitioner or
Hood) and four other persons.

Petitioner was charged in five

counts of the Superseding Indictment:

(1) conspiracy to possess

with intent to distribute and distribution of cocaine, crack
cocaine, and heroin (Count One); (2) possession with intent to
distribute

and

distribution

of

cocaine

(Count

Five);

(3)

possession with intent to distribute 500 grams or more of cocaine
and a detectable amount of heroin (Count Six); (4) possession with
intent to distribute cocaine (Count Eight); and (5) being a felon
in possession of one or more firearms and ammunition (Count Nine).
On August 25, 2014, defense counsel filed a Motion for PreTrial Suppression Hearing (Cr. Doc. #103).

After an evidentiary

hearing and a Report and Recommendation (Cr. Doc. #126) by the
magistrate judge, the district court issued an Opinion and Order
(Cr. Doc. #132) on December 10, 2014, overruling petitioner’s
objections, fully adopting the Report and Recommendation, and
denying the motion to suppress.
On March 20, 2015, a jury found petitioner guilty on all
counts.

(Cr. Doc. #192.)

On September 15, 2015, the Court

sentenced petitioner to 235 months imprisonment as to Counts 1, 5,
6, and 8, and 120 months imprisonment as to Count 9, to be served
concurrently, followed by a term of supervised release.

- 2 -

(Cr. Doc.

#263.)
April

Judgment (Cr. Doc. #266) was filed on the same day.
12,

2017,

the

Eleventh

convictions and sentence.

Circuit

affirmed

On

petitioner’s

United States v. Lesane, 685 F. App'x

705 (11th Cir. 2017).
Petitioner’s current motion is undated, but was filed on May
17, 2018.

Since a petitioner “gets the benefit of up to 90 days

between the entry of judgment on direct appeal and the expiration
of the certiorari period,” Kaufmann v. United States, 282 F.3d
1336, 1338 (11th Cir. 2002), the motion was timely filed.

See

also 28 U.S.C. § 2255(f).
II.
Petitioner identifies fourteen claims for relief.
argues

that

failing to:

trial

counsel

provided

ineffective

Petitioner

assistance

by

(1) notify the government that he was willing to

plead guilty; (2) file a motion to dismiss Count One of the
Superseding Indictment based on the statute of limitations; (3)
impeach

Detective

testimony;

(4)

Tice

object

with
to

his

prior

Detective

suppression

Petaccio’s

lay

hearing
opinion

testimony as to identification; (5) object to the aiding and
abetting theory and the corresponding jury instruction; (6) argue
that under the Sentencing Guidelines an individualized finding had
to be made as to the actual drug amount attributable to petitioner;
(7) object to the two-level enhancement for possession of a firearm

- 3 -

under the Sentencing Guidelines; (8) object under the Sentencing
Guidelines to the lack of evidence as to the purity of the cocaine
charged in Count Eight; and (9) object to the petitioner’s criminal
history calculation under the Sentencing Guidelines.
Petitioner also argues that appellate counsel was ineffective
by failing to:

(1) appeal the enhancement under the Sentencing

Guidelines for being a manager or supervisor; (2) brief the issue
of

the

insufficiency

of

evidence

to

convict

petitioner

of

possession of a firearm; (3) properly brief the insufficiency of
the evidence to convict petitioner under an overall conspiracy in
Count One; and (4) file a timely petition for rehearing and
rehearing en banc.

Petitioner’s final argument is that he is

entitled to a new trial based on the government’s due process
violation for destroying certain drugs after testing.
A. Evidentiary Hearing
A district court shall hold an evidentiary hearing on a habeas
petition “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
.” 28 U.S.C. § 2255(b).

“[I]f the petitioner alleges facts that,

if true, would entitle him to relief, then the district court
should order an evidentiary hearing and rule on the merits of his
claim.”

Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.

2002) (citation omitted).

However, a “district court is not

- 4 -

required to hold an evidentiary hearing where the petitioner’s
allegations are affirmatively contradicted by the record, or the
claims are patently frivolous.”

Id. at 715. See also Gordon v.

United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (a hearing is
not

necessarily

required

counsel is asserted).

whenever

ineffective

assistance

of

To establish entitlement to an evidentiary

hearing, petitioner must “allege facts that would prove both that
his counsel performed deficiently and that he was prejudiced by
his counsel’s deficient performance.”

Hernandez v. United States,

778 F.3d 1230, 1232-33 (11th Cir. 2015).
Viewing the facts alleged in the light most favorable to
petitioner, the Court finds that the record establishes that
petitioner is not entitled to relief as to any of his claims.
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.

- 5 -

the

result

of

the

Hinton v. Alabama, 571 U.S.

263, 272 (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.

Hinton, 571 U.S. at 273 (citations omitted).

“A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the
time.”

Strickland, 466 U.S. at 689.

See also Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000) (the Court looks to facts at the
time of counsel’s conduct).

This judicial scrutiny is highly

deferential, and the Court adheres to a strong presumption that
counsel’s

conduct

falls

professional assistance.

within

the

wide

range

of

reasonable

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.

Rose v. McNeil,

634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611 F.3d

- 6 -

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).
The same deficient performance and prejudice standards apply
to appellate counsel.

Smith v. Robbins, 528 U.S. 259, 285-86

(2000); Roe v. Flores-Ortega, 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.
States, 103 F.3d 961, 963 (11th Cir. 1997).

Joiner v. United

Nonmeritorious claims

which are not raised on direct appeal do not constitute ineffective
assistance of counsel.

Diaz v. Sec’y for the Dep’t of Corr., 402

F.3d 1136, 1144-45 (11th Cir. 2005).
III.
A. Ineffective Assistance of Trial Counsel Claims
(1)

Ground One:

Plea Negotiations

Petitioner’s attorney told petitioner that the government
wanted him to cooperate and would not make a plea offer which did
not include cooperation.

Petitioner asserts that he wanted his

attorney to negotiate a plea agreement, but states he was adamant
about not cooperating.

Petitioner asserts that his attorney never

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conveyed

this

negotiations.

information

to

the

government

during

plea

Petitioner therefore proceeded to trial and was

convicted on all counts.

Petitioner argues that there is a

reasonable probability a non-cooperation guilty plea would have
been accepted by both the government and the Court, he would have
received a three-level reduction for acceptance of responsibility,
and his sentence would have been lower.

Petitioner asserts,

therefore, that he received ineffective assistance of counsel
during the plea negotiation process.
A defendant in a criminal case is entitled to effective
assistance of counsel during plea negotiations. Lafler v. Cooper,
566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 140-44
(2012).

In this case, it is undisputed that the government would

not offer a plea agreement which did not include cooperation, and
petitioner would not accept a plea offer which did include such
cooperation.

As defense counsel stated,

Mr. Barclift never extended a plea offer that
did not include cooperation. Mr. Hood was
emphatic that he did not wish to plea to any
of the charges in this case, and that he
specifically had hired me to go to trial.
Every time I broached the subject of a plea,
Mr. Hood would reiterate that statement.
Nevertheless, I did request of Mr. Barclift
that he provide an offer I could communicate
to Mr. Hood that did not include cooperation.
Mr. Barclift reiterated that any plea offer
would include cooperation, and that Mr. Hood's
criminal record did not suggest any other
offer was appropriate.

- 8 -

(Cv. Doc. #7, p. 8.)

The record establishes the government’s

consistent refusal to make a plea agreement without cooperation.
The only guilty plea in the case, by defendant Walter J. Campbell,
who was not called as a government witness, was to all counts
against him without the benefit of a plea agreement.

(Cr. Doc.

#168.)
It is clear that under the circumstances of this case there
was not going to be a plea offer from the government without a
cooperation requirement, and petitioner concedes he would not have
accepted

any

offer

that

required

cooperation.

There

was

no

ineffective assistance of counsel in the plea negotiations or
prejudice to petitioner, just an inability of the parties to agree
on the terms of a plea agreement.

The motion is denied as to this

claim.
(2)

Ground Two:

Failure to File Motion to Dismiss

Petitioner argues that his counsel should have filed a motion
to dismiss Count One of the Superseding Indictment based on the
five-year statute of limitations.

Petitioner argues that if

counsel had properly reviewed the discovery material, he would
have known to file such a motion.

Additionally, petitioner points

to the following portion of the government’s closing arguments as
proof that the conspiracy took place in 2004:
You'll also recall that Nicholas Herman told
you that when he first started dealing with

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Lorenzo Hood, that he would make contact with
Mr. Hood by phone, and go to a residence behind
the flea market and pick up still small
amounts of cocaine, and ultimately he started
getting heroin as well, but that on occasion,
Mr. Hood would have somebody else actually
deliver the cocaine to him. Now, that's an
unnamed person. We don't know who that is. But
that dates back to '04/'05.
So that's the reason that the conspiracy as
charged reaches back that far in time. There's
evidence of conspiratorial activity.
(Cr. Doc. #280, p. 13.)

Petitioner argues that the conspiracy

with the “unnamed person” took place on or about 2004, but was not
a continuing offense, and as such it did not extend the statute of
limitations.
The Superseding Indictment was returned on May 14, 2014. In
Count One of the Superseding Indictment (Cr. Doc. #31), the grand
jury charged a conspiracy “[f]rom in or about 2004, to in or about
the fall of 2013” in violation of 21 U.S.C. § 841(a)(1), §
841(b)(1)(C), and § 846.

A person may not be prosecuted or tried

“unless the indictment is found or the information is instituted
within

five

committed.”

years

next

after

18 U.S.C. § 3282(a).

such

offense

shall

have

been

Thus, the conspiracy charge in

this case is timely if the conspiracy continued to May 14, 2009,
five years before the Superseding Indictment was filed. 1

1

Because it does not affect the outcome, the Court need not decide
whether the five years should be measured from the date of the
original Indictment (March 5, 2014) or the date of the Superseding

- 10 -

In a § 846 conspiracy
[t]he government satisfies the requirements of
the statute of limitations for a non-overt act
conspiracy if it alleges and proves that the
conspiracy continued into the limitations
period.
United States v. Arnold, 117 F.3d
1308, 1313 (11th Cir. 1997). The government
only
has
to
show,
either
directly
or
circumstantially, that a conspiracy existed;
that the defendant knew of the conspiracy; and
that with knowledge, the defendant became a
part of the conspiracy. Id. A conspiracy is
deemed to have continued as long as the
purposes of the conspiracy have neither been
abandoned nor accomplished and the defendant
has not made an affirmative showing that the
conspiracy has terminated. United States v.
Gonzalez, 921 F.2d 1530, 1548 (11th Cir. 1991)
(citing Coia, 719 F.2d at 1124). A defendant
can overcome this presumption of continued
participation
only
by
showing
that
he
affirmatively withdrew from the conspiracy or
that the final act in furtherance of the
conspiracy has occurred. Reed, 980 F.2d at
1584.
United States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003).
The issue therefore is whether the charged conspiracy continued to
within five years of the filing of the Superseding Indictment,
i.e., continued through at least to May 14, 2009.
The jury was instructed on multiple conspiracies (Cr. Doc.
#280, pp. 75-77), and by its verdict found petitioner guilty of a
single conspiracy (Cr. Doc. #192).

The evidence clearly supported

the jury’s finding of a single conspiracy which existed well into

Indictment.

- 11 -

the statute of limitations period, as is evident from the summary
of the facts in United States v. Lesane, 685 F. App’x 705, 707-12
(11th Cir. 2017).

Evidence showed that Bobby Lesane and Maury

Morris became involved in the conspiracy in 2013 when activities
reached 6226 Demery Circle.

In Count 6, petitioner was charged

with and convicted of a substantive offense for activities in 2013
at this same address.

(Id., pp. 13, 17-18.)

Petitioner does not

specifically argue that he withdrew at any time, and no evidence
supports a withdrawal from or termination of the conspiracy.
The record establishes that there was no factual basis for a
motion to dismiss based on the statute of limitations.

Therefore,

counsel was not deficient by failing to file a motion that had no
merit, and there was no prejudice to petitioner.

The motion is

denied as to this claim.
(3)

Ground Three:

Failure To Impeach Detective Tice

Petitioner argues that defense counsel allowed Detective Tice
to

testify

inconsistent

at

trial

without

suppression

impeaching

hearing

him

testimony.

with
This,

his

prior

petitioner

asserts, constituted ineffective assistance of counsel.
On October 29, 2013, Detective Tice took part in the execution
of a search warrant on the residence at 1606 Hibiscus Avenue 2,
2

Testimony refers to the address as 1606 Hibiscus Avenue, however
the Presentence Report uses 1606 Hibiscus Drive.
The Court
references both Avenue and Drive herein for the 1606 Hibiscus

- 12 -

during which he took a number of photographs.

Detective Tice

testified at the October 7, 2014 suppression hearing that after
all the photographs were taken, several tests were conducted on
various individual items depicted in the photographs.

Detective

Tice, however, did not have the items individually marked on what
tested positive and what did not.

(Cr. Doc. #300 p. 22.)

As to

the photograph depicted in Exhibit 4G, Detective Tice testified:
A. 4G is a -- it's a box like a Pop-Tart box
that was just sitting with the top open; and
there's a bag of what appeared to be narcotics
or a cutting agent at the time. All you could
see was a plastic baggie tied up top with some
white powder substance inside.
Q. And that was ultimately determined not to
be a controlled substance?
A. I believe so, it was.
Q. And you would therefore conclude that it is
something else?
A. Definitely with my training and with what
I've done with Lee County Sheriff's Office,
that is definitely used for a cutting agent.
(Cr. Doc. #300, p. 25.)

At trial on October 8, 2015, Detective

Tice again testified regarding the Pop-Tart box depicted in a
photograph:
Q Deputy Tice, from your perspective, what is
this?
A That is a Pop-Tart box that was located on
the left side of the bed in the master bedroom,

address depending on the source.

- 13 -

with a bag of white powder inside that later
tested for cocaine.
(Cr. Doc. #276, p. 34.)

Ronald Ralls, evidence manager of the Lee

County Sheriff’s Department testified that he sent evidence seized
from 1606 Hibiscus Avenue to the FDLE for processing, including
the cocaine from the Pop-Tart box.
examination,

counsel

for

(Id., p. 108-111.)

petitioner

questioned

On cross-

Detective

Tice

about the location of the Pop-Tart box, and whether the box had
since been destroyed.

(Id., pp. 51, 55.)

Defense counsel,

however, did not impeach Detective Tice with his suppression
hearing testimony that he believed the substance was cutting agent.
Petitioner argues that counsel should have impeached Tice
with his prior inconsistent testimony.

The government responds

that such impeachment would not have been “sound trial strategy”
in light of laboratory results that confirmed the presence of
cocaine. 3

3

Petitioner also argues that he had discovered a testing kit at
the residence after he was released from state custody, which he
gave to his girlfriend, who in turn gave it to his attorney.
Petitioner asserts counsel should have impeached Detective Tice
with the testing kit to show that Detective Tice did indeed test
the substance.
Even apart from the obvious chain of custody
issues, finding a testing kit at the residence would not have
impeached Detective Tice’s prior testimony.
The kit would not
have established that Detective Tice did any testing, and he
testified that other officers had tested a number of items.
Defense counsel was not ineffective for failing to pursue this
avenue.

- 14 -

Counsel was not deficient for failing to confront Detective
Tice with his suppression hearing testimony.
there

was

Detective

a

material

Tice

simply

inconsistency
testified

to

It is not clear that

in

the

what

testimony,

he

believed

situation as of the date of the suppression hearing.

since

was

the

To identify

the alleged inconsistency would have emphasized the fact that the
substance was indeed cocaine, not just a cutting agent as Detective
Tice originally believed.
identified
Further,

the

in

substance

light

of

Petitioner concedes the FDLE report
as

the

cocaine.

(Cv.

overwhelming

Doc.

evidence,

#8,
there

p.
is

8.)
no

prejudice from the failure to elicit such minimal impeachment.
Petitioner has failed to establish any deficient performance or
prejudice, and the claim is denied.
(4)

Ground Four: Det. Petaccio’s Identification Testimony

Petitioner

argues

that

counsel

should

have

objected

to

Detective Candice Petaccio’s lay opinion that petitioner was one
of the persons depicted in surveillance videos introduced by the
government.
first-hand
therefore
Evidence.

Petitioner argues that the opinion was not based on
observation

was

or

inadmissible

a

familiarity
under

Rule

with

701,

petitioner,

Federal

Rules

and
of

Petitioner argues the court would have sustained an

objection if one had been made, and therefore counsel provided
ineffective assistance by failing to object.

- 15 -

A video surveillance system was installed at 6226 Demery
Circle, one of the houses from which defendants sold drugs.

When

a search warrant was executed on the premises on September 9, 2013,
officers seized two weeks’ worth of video surveillance tapes which
showed, among other things, various defendants selling drugs.
(Cr. Doc. #279, pp. 36-37.)

Detective Petaccio was the co-case

agent (id., p. 30) who had watched 336 hours of the four-camera
views to transfer clips and record what was playing on the DVR.
(Id., p. 39.)

Detective Petaccio identified various exhibits

related to the surveillance system and its resulting videos and
her efforts to produce exhibits reflecting a sample of the drug
activity.

(Id., pp. 36-48.)

For example, Exhibit 12B covers

activity on Day 8 of people coming and going from the residence
and purchasing drugs.

(Id., p. 42.)

Exhibit 12C1 was a still

photo made from the videos showing Lorenzo Hood (id., p. 45), while
Exhibit

33D

captured

was

a

petitioner

representative
conducting

transaction at the back door.”

sample

“what

of

the

appears

(Id., pp. 46-47.)

to

videos

which

be

drug

a

When questioned

by counsel for petitioner regarding the identification, Detective
Petaccio stated that the identification was done by her and others
working for her.
objection.

(Id., p. 47.)

The Exhibit was admitted without

(Id.)

- 16 -

Under Rule 701, lay witness testimony in form of an opinion
is limited to one that is “rationally based on the witness’s
perception.”

Fed. R. Evid. 701.

“Opinions by lay witnesses must

be derived from personal knowledge or experience.”

Williams v.

Mosaic Fertilizer, LLC, 889 F.3d 1239, 1250 (11th Cir. 2018).
Identification based on observations related to the case, or
familiarity with a defendant, is appropriate.

United States v.

Knowles, 889 F.3d 1251, 1257 (11th Cir. 2018).

“The ultimate

decision as to the admissibility of lay opinion testimony is
committed to the sound discretion of the district court and will
not be overturned on appeal unless there is a clear abuse of
discretion.”

United States v. Pierce, 136 F.3d 770, 773 (11th

Cir. 1998)(citation omitted).
Detective

Petaccio

testified

she

had

over

eight

years’

experience investigating drug dealers, with four years as a member
of the DEA Task Force.
Detective

Petaccio

(Cr. Doc. #279, pp. 30-31.)

was

the

co-case

agent

on

In this case,
the

lengthy

investigation, and she reviewed hundreds of hours of surveillance
videos covering a two week period.

Agent Petaccio testified as

to the content of the exhibits and demonstrated a certainty as to
the

identification

petitioner.

of

each

of

the

defendants,

including

The identification was based on her observation and

familiarity with the case, defendants, and the testimony discussed

- 17 -

criminal activity seen on the surveillance.
an

instruction

as

to

factors

identification testimony.

to

The jury was provided

consider

when

evaluating

(Cr. Doc. #188, p. 8.)

The failure to object to Detective Petaccio’s identification
was not deficient performance, and an objection would not have
been sustained.

Because there was no ineffective assistance of

counsel, the motion is denied.
(5)

Ground Five: Aiding and Abetting

Petitioner argues that the Superseding Indictment did not
place him on notice of the government’s aiding and abetting theory
because there was no allegation he aided and abetted other members
of the conspiracy.

Petitioner argues that counsel therefore

should have objected to the government presenting the aiding and
abetting theory to the jury and the corresponding jury instruction.
Finally, Petitioner argues there is no evidence the grand jury
returned the Indictment based on the “element” of aiding and
abetting.
There

was

no

aiding

and

abetting

government as to the conspiracy count.

theory

argued

by

the

The substantive drug

charges against petitioner in the Superseding Indictment were
Counts Five, Six, and Eight, all of which referenced an aiding and
abetting theory by citing 18 U.S.C. § 2.

- 18 -

(Cr. Doc. #31, pp. 3-

5.) 4

Aiding and abetting is not a separate crime or element of a

crime.

“Rather, it merely permits one who aids and abets the

commission of a crime to be punished as a principal. [ ] An
individual, therefore, may be indicted as a principal for the
commission of a substantive crime and convicted upon evidence that
he or she aided and abetted only.”
F.3d

380,

388

(11th

Cir.

United States v. Walser, 3

1993)(citations

omitted).

Here,

petitioner was placed on notice of the aiding and abetting theory
as to the substantive drug offenses in the Superseding Indictment,
and

the

jury

was

given

the

Eleventh

Circuit

instruction regarding aiding and abetting.
79-80.)

pattern

jury

(Cr. Doc. #280, pp.

There was no legal basis for counsel to object to either

an aiding and abetting theory or the aiding and abetting jury
instruction.

Because there was no basis for counsel to assert

such objections, there was no ineffective assistance of counsel.
This claim is denied.
(6)

Ground Six:

Individualized Drug Calculation

Petitioner argues that his base offense level under the
Sentencing Guidelines was improperly calculated because he should
have

only

been

held

responsible

4

for

the

amount

of

drugs

Section 2 provides that “[w]hoever commits an offense against
the United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.” 18 U.S.C.
§ 2(a).

- 19 -

attributable
conspiracy.

to

him,

not

the

entire

amount

of

drugs

in

the

Petitioner asserts his attorney should have objected

to this error, and had he done so the sentence would have been
lower. 5
Petitioner, and each defendant, had a separate Verdict Form.
See Cr. Doc. #192.

As to Count One, the jury found petitioner

guilty of a conspiracy involving cocaine, crack cocaine, and
heroin, and found that the quantity of crack cocaine was not 28
grams or more.

In Count Six, the jury found petitioner guilty of

possession with intent to distribute 500 or more grams of cocaine.
The Presentence Report (PSR) (Cr. Doc. #225) calculated the
base offense level for petitioner under USSG § 2D1.1.
74.)

(Id., ¶

After summarizing the evidence, the PSR concluded:
In this case, Lorenzo Hood was historically
involved in the distribution of drugs since at
least 2005, as verified through confidential
sources. He is conservatively accountable for
at least 1.8 kilograms of cocaine, 26.09 grams
of heroin, 16.28 grams of cocaine base, “crack
cocaine,” seven grams of Roxicodone and 3
grams of marijuana. Lorenzo Hood’s role in
this conspiracy was that of a leader over the
organization. He made the decisions, obtained
the supply, and maintained the premises where
drugs were distributed. Lorenzo Hood was
additionally found to possess weapons during
the drug distribution activities at 1606
Hibiscus Avenue in Lehigh Acres, Florida.

5

Petitioner also includes discussion of drug purity in this
ground, but this issue is addressed in Ground Nine.

- 20 -

(Cr. Doc. #225, ¶64) (emphasis omitted).
of

cocaine,

heroin,

and

crack

Based upon these amounts

cocaine,

petitioner’s Base Offense Level was 26.

the

PSR

determined

(Cr. Doc. #264, ¶ 74.)

Counsel did not have any factual objections to the presentence
report because “[m]ost of it is taken directly from the trial.”
(Cr. Doc. #296, p. 5.)

The Court adopted this calculation.

The Eleventh Circuit has recently summarized the process for
calculation an amount of drugs attributable to a defendant:
When the amount of the drugs [actually] seized
does not reflect the scale of the offense, the
district court [instead] must approximate the
drug quantity attributable to the defendant.
[ ] In doing so, it may rely on evidence
demonstrating the average frequency and amount
of a defendant’s drug sales over a given
period of time.
[ ] This determination may
be based on fair, accurate, and conservative
estimates of the drug quantity attributable to
a defendant, but it cannot be based on
calculations of drug quantities that are
merely speculative. [ ] Relevant here, when a
district court sentences a member of a
“jointly undertaken criminal activity,” it may
consider the conduct of “others that was . .
. in furtherance of the jointly undertaken
criminal
activity”
and
“reasonably
foreseeable in connection with that criminal
activity.” U.S.S.G. § 1B1.3 cmt. n.2. This
analysis requires the district court to first
determine the scope of the criminal activity
the particular defendant agreed to jointly
undertake.
United

States

v.

Dixon,

901

F.3d

2018)(internal citations omitted).

1322,

1349

(11th

Cir.

This is exactly what the PSR

did, and there was no ground for a viable objection by defense

- 21 -

counsel.

Petitioner

has

not

established

any

ineffective

assistance of counsel, and this claim is therefore denied.
(7)

Ground Seven: Failure to Object to Firearm Enhancement

Petitioner argues that counsel should have objected to the
two-level enhancement for possession of a firearm during a drug
trafficking offense.

This would have required the government to

prove by a preponderance of the evidence that the firearm found in
the closet of the Lehigh Acres residence was related to the drug
trafficking crime.

Petitioner asserts there was no evidence to

support such an enhancement, resulting in a reasonable probability
that the Court would have sustained an objection.

(Cv. Doc. #2,

p. 14.)
The PSR reflects that petitioner was in possession of drugs,
firearms, ammunition and drug paraphernalia at 1606 Hibiscus Drive
in Lehigh Acres when a search warrant was executed.
#264, ¶ 75.)

(Cr. Doc.

The PSR applied a two level increase for possession

of a dangerous weapon under U.S. Sentencing Guidelines Manual §
2D1.1(b)((1).

(Id.)

The

guideline

for

drug-trafficking

offenses, § 2D1.1, provides for a two-level increase to the offense
level

when

“a

dangerous

weapon

(including

a

firearm)

was

possessed.” U.S. Sentencing Guidelines Manual § 2D1.1(b)(1).
To justify this sentencing enhancement, “[t]he government
bears the initial burden of showing, by a preponderance of the

- 22 -

evidence, that a firearm was ‘present’ at the site of the charged
conduct

or

that

the

defendant

possessed

it

during

conduct

associated with the offense of conviction.” United States v.
George, 872 F.3d 1197, 1204 (11th Cir. 2017).

This requires a

showing “that the firearm had some purpose or effect with respect
to the drug trafficking crime; its presence or involvement cannot
be the result of accident or coincidence.” Id. (citation omitted).
After the government meets its initial burden, the burden shifts
to the defendant to “establish that a connection between the weapon
and the offense was clearly improbable.” Id. (citation omitted);
see U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.11(A).
Failure to produce such evidence permits a district court to apply
the enhancement without committing clear error. United States v.
Hall, 46 F.3d 62, 64 (11th Cir. 1995).
The Eleventh Circuit has held that “proximity between guns
and drugs, without more, is sufficient to meet the government’s
initial burden under § 2D1.1(b)(1).” United States v. CarilloAyala, 713 F.3d 82, 91 (11th Cir. 2013).

Further, a weapon may

be “present” at the site of the charged conduct regardless of
whether it is in the same room where the offense conduct occurred,
as long as it is at the same general location.

United States v.

Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (holding that a weapon
was “present” for the purposes of the § 2D1.1(b)(1) enhancement

- 23 -

where the firearm was in the office of a warehouse, and the cocaine
was found in and around the warehouse); United States v. Hall, 46
F.3d 62, 63 (11th Cir. 1995) (upholding the enhancement where “the
handgun was in the same room with objects ordinarily associated
with the drug trade: scales, a ziplock bag containing cocaine
residue, and a large amount of cash.”); George, 872 F.3d at 1204–
05 (upholding the enhancement where the weapon was found at the
front desk of a barbershop, while the offense conduct occurred in
a back room).
Petitioner’s

driver’s

license

address as his primary residence.

lists

the

Hibiscus

Drive

(Cr. Doc. #264, ¶ 53.)

On

October 29, 2013, the United States Marshal’s Office breached the
front door and apprehended petitioner as he walked from the south
master bedroom.

(Id., ¶ 54.)

In clear view, in the kitchen, were

baggies and measuring cups with white residue, and a digital scale.
In the office was a machine gun style rifle with a matching scope
(DPMS, Model LR-308, .307 Caliber Rifle).
bedroom,

officers

observed

a

baggie

Inside the south master
containing

utensils with cocaine residue on a dresser.

cocaine

and

(Id., ¶ 55-56.)

After these items were observed in plain view, a search
warrant was obtained and the following items were seized:
1. 154.2 Grams of Cocaine from the Master Bedroom
2. Remington, Model 870, 20 Gauge Shotgun

- 24 -

3. Ruger, Model SR-556, 5.56mm Caliber Rifle
4. DPMS, Model LR-308, .308 Caliber Rifle
5. Maverick Arms, Model 88, 12 Gauge Shotgun
6. Mossberg, Model 500, 12 Gauge Shotgun
7. Marlin, Model 60, .22 Caliber Rifle
8. 20 Rounds Winchester, 7.62 mm Caliber Ammunition
9. 14 Rounds of Hornady, .223 Remington Caliber Ammunition
10.

7 Rounds of Tulammo, .223 Remington Caliber Ammunition

11.

1 Round of G.F.L., .223 Remington Caliber Ammunition

(Id., ¶ 57.)
Considering that both a quantity of cocaine and weapons were
found in the same home, there was no reasonable objection that
counsel

could

possession

of

have
a

made

against

dangerous

the

weapon.

two-level
The

increase

evidence

for

clearly

established that the government satisfied its burden, and that
there was a very likely connection between the weapons and the
offense.

Counsel was not deficient for failing to argue against

this two level increase since any such argument would be meritless.
The motion is denied on this issue.
(8)

Ground Eight 6: Criminal History Calculation

Section 4A1.1 of the Sentencing Guidelines sets forth the
number of criminal history points to assign to certain prior
6

The Petition contains two Ground Eights, so the Court’s numbering

- 25 -

convictions based on a variety of factors, including the length of
imprisonment imposed. U.S. Sentencing Guidelines Manual § 4A1.1.
The relevant portion provides:
The total points from subsections (a) through
(e) determine the criminal history category in
the Sentencing Table in Chapter Five, Part A.
(a) Add 3 points for each prior sentence of
imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of
imprisonment of at least sixty days not
counted in (a).
(c) Add 1 point for each prior sentence not
counted in (a) or (b), up to a total of 4
points for this subsection.
. . . .
U.S. Sentencing Guidelines Manual § 4A1.1.
Petitioner

raises

two

claims

in

connection

calculation of his criminal history points.

with

the

Petitioner argues

that he should not have been assigned three criminal history points
for each of three sets of convictions (PSR ¶¶ 95, 99, 100) since
they had been consolidated for sentencing and he was sentenced to
concurrent terms of imprisonment.

Additionally, petitioner argues

he should not have been assigned two points as to each conviction
in paragraphs 101 and 103 of the PSR because the length of the
actual sentences did not qualify for the points.

Because counsel

hereafter will differ by one digit from petitioner’s.

- 26 -

did

not

object,

petitioner

asserts

he

received

ineffective

assistance.
(a)

Scoring of Concurrent Sentences

In three of his prior cases, Petitioner was arrested on
separate dates for offenses committed on separate dates, but was
ultimately sentenced to concurrent terms of imprisonment at a
single sentencing proceeding.

Specifically, petitioner received

three criminal history points for each of the following three sets
of convictions:
•

On or about January 7, 2002, petitioner was found with
an ATV that had been reported stolen from a dealership.
Petitioner

was

arrested

on

January

7,

2003.

On

September 7, 2005, in Docket No. 03CF86, petitioner
pleaded nolo contendere to grand theft and was sentenced
to 24 months of prison, with 244 days credit for time
served.
•

(Cr. Doc. #264, ¶ 95.)

On or about June 29, 2003, petitioner was arrested after
a traffic stop in which petitioner sped off, abandoned
the vehicle and fled on foot.

On September 7, 2005, in

Docket No. 03CF3449, petitioner pleaded nolo contendere
to fleeing or attempting to elude an officer, driving
with a suspended license, and resisting or obstructing
an officer without violence.

- 27 -

Petitioner was sentenced

on

September

7,

2005

to

concurrent

24

month

terms

imprisonment, and sentenced to 224 days of time served
as to the third count.
•

(Id., ¶ 99.)

On or about August 12, 2003, petitioner was arrested
after an attempted traffic stop where petitioner failed
to stop and drove recklessly for an eleven mile chase,
resulting in the vehicle rolling over and ending up in
a ditch.

On September 7, 2005, in Docket No. 03CF4013,

petitioner pleaded nolo contendere to aggravated assault
of an officer or firefighter and aggravated fleeing or
eluding, and was sentenced to concurrent terms of 24
months imprisonment.

(Id., ¶ 100.)

Petitioner argues that because these three cases were consolidated
for sentencing and concurrent sentences were imposed, they should
not have been separately scored and his attorney should have
objected at sentencing.
The Court is to “[a]dd 3 points for each prior sentence of
imprisonment exceeding one year and one month.”
Guidelines Manual § 4A1.1(a).

U.S. Sentencing

A “prior sentence” is “any sentence

previously imposed upon adjudication of guilt, whether by guilty
plea, trial, or plea of nolo contendere, for conduct not part of
the instant offense.”

U.S.S.G. 4A1.2(a)(1).

“If the defendant

has multiple prior sentences, [the Court must] determine whether

- 28 -

those sentences are counted separately or treated as a single
sentence.”

U.S. Sentencing Guidelines Manual § 4A1.2(a)(2).

The

following rules apply:
Prior sentences always are counted separately
if the sentences were imposed for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). If there is no intervening arrest,
prior sentences are counted separately unless
(A) the sentences resulted from offenses
contained in the same charging instrument; or
(B) the sentences were imposed on the same
day. Treat any prior sentence covered by (A)
or (B) as a single sentence. See also §
4A1.1(e).
U.S. Sentencing Guidelines Manual § 4A1.2(a)(2).

“An intervening

arrest is one that comes in between the commission of the first
criminal act and the second.”

United States v. Wright, 862 F.3d

1265, 1281 (11th Cir. 2017).
As set forth above, the PSR established that defendant was
arrest for the first set of offenses prior to committing the second
set of offenses, which was prior to his commission of the third
set of offenses.

Therefore, all three sets of convictions are

counted separately.

The fact that the sentences were imposed

concurrently on the same day does not change this result.

Wright,

862 F.3d at 1281; United States v. Delaney, 639 F. App’x 592, 597
(11th Cir. 2016) (“Because the sentences were separated by an
intervening arrest, it is immaterial that the sentences were

- 29 -

imposed on the same day.”)

Because counsel had no valid basis to

object, there was no ineffective assistance of counsel and this
component of the claim is denied.
(b)

Erroneous Scoring of Criminal History Points

Petitioner asserts that he received ineffective assistance of
counsel when his attorney failed to object to the scoring on two
of his other prior convictions.
•

On May 10, 2004, petitioner was arrested for driving on
a revoked license.

On June 30, 2004, petitioner entered

a plea of nolo contendere, and was placed on 18 months
of probation.

After several violations, probation was

revoked on March 10, 2006, and petition was sentenced to
1 year and 1 day of prison with 188 days of time served.
(Id., ¶ 101.)

Petitioner was assessed two criminal

history points.
•

On

December

driving

21,

while

2007,

license

petitioner
suspended

was

arrested

habitual

for

offender,

possession of marijuana under 20 grams, and possession
of cocaine.
contendere

On April 3, 2008, petitioner pleaded nolo
to

the

driving

with

a

suspended

license

habitual offender and was sentenced to 90 days with
credit for 31 days of time served.

(Id., ¶ 103.)

Petitioner was assessed two criminal history points.

- 30 -

Petitioner asserts that his attorney was ineffective by failing to
object to the two points for each conviction because he did not
receive

a

sentence

of

more

than

one

year

and

one

month

imprisonment.
Under § 4A1.1(b), two points are added for each prior sentence
of imprisonment of at least 60 days but not more than one year and
one month. U.S. Sentencing Guidelines Manual § 4A1.1(b).

Both of

these convictions qualify, and there was no basis for defense
counsel to object to this aspect of the criminal history scoring.
This portion of the claim is denied.
(9)

Ground Nine:

Petitioner

argues

Failure to Object to Drug Purity

that

his

attorney

provided

ineffective

assistance by failing to object to the purity of the substance in
Count

Eight.

Petitioner

asserts

that

the

Court

improperly

included the weight of the cutting agent in determining the amount
of cocaine involved in Count Eight, and an objection would have
resulted in a lower sentence.
In Count Eight, petitioner was charged with possession with
intent

to

distribute

a

quantity

of

a

mixture

or

substance

containing a detectable amount of cocaine on or about October 29,
2013.

Petitioner was arrested at the Hibiscus Avenue address

where a quantity of suspected cocaine was found in the master
bedroom.

(Cr. Doc. #277, p. 194.)

- 31 -

A Senior Crime Laboratory

Analyst with the Florida Department of Law Enforcement testified
the net weight of the cocaine was 131.98 grams, plus or minus 0.24
grams.

(Cr. Doc. #277, pp. 193-97.)

It is undisputed that the

FDLE lab report for the cocaine charged in Count Eight did not
distinguish the number of grams of cocaine from the number of grams
of cutting agent, but simply combined the weight.
was thereafter destroyed.
(Counts

One,

Five,

Six,

The substance

According to the PSR, the drug counts
Eight,

and

Nine)

were

grouped

under

Sentencing Guidelines, and the base offense level was calculated
based upon 1.8 kilograms of cocaine and less quantities of heroin
and crack cocaine.

(Id. ¶¶ 73-74.)

Petitioner was assigned a

Base Offense Level of 26 based on the presence of at least 400
kilograms but less than 700 kilograms of marijuana under the Drug
Quantity Table, U.S. Sentencing Guidelines Manual § 2D1.1(c).
(Cr. Doc. #264, ¶ 74.)
Petitioner

argues

that

the

Court

had

an

obligation

to

determine the sentence based on the “marketable” amount of cocaine,
which could not be done as to Count Eight because cutting agents
cannot be included in the calculation of the amount of cocaine.
Petitioner asserts that the failure of his attorney to object on
this basis constituted ineffective assistance of counsel.
Section 2D1.1(c) of the United States Sentencing Guidelines
sets out base offense levels keyed to drug quantities. It uses the

- 32 -

same “mixture or substance” language from 21 U.S.C. § 841(b),
setting a defendant's base offense level based on “the entire
weight of any mixture or substance containing a detectable amount
of the controlled substance.” U.S. Sentencing Guidelines Manual §
2D1.1(c) cmt. n.1.
The law in the Eleventh Circuit is clear that an unusable
component of a substance is not included in the weight, but a
cutting agent is included in the weight of the substance.

United

States v. Rolande-Gabriel, 938 F.2d 1231, 1238 (11th Cir. 1991)
(weight

of

an

unusable

liquid

mixture

is

not

included,

but

“appellant should have been sentenced based on the 72.2 grams of
usable powder consisting of cutting agent and cocaine base.”
(emphasis added)).

See Griffith v. United States, 871 F.3d 1321,

1330-36 (11th Cir. 2017)(citing cases).

Since there was no basis

for an objection, there was no ineffective assistance of counsel,
and this ground is denied.
Additionally, any error as to the amount of cocaine in Count
Eight was harmless since the inclusion of the amount did not affect
the Sentencing Guidelines calculation of the base offense level.
B. Ineffective Assistance of Appellate Counsel
(1)

Ground Ten:

Failing to Appeal Role in Offense Error

Petitioner argues that appellate counsel erred by failing to
argue that the district court erred in finding that he was a

- 33 -

manager or supervisor, an issue preserved in the district court.
Petitioner argues that the government failed to establish his role
by a preponderance of evidence since it was based on the testimony
of a jailhouse informant and two confidential informants, which
was not sufficient to show he was a manager or supervisor.
At sentencing, counsel successfully argued against petitioner
being enhanced as a leader or organizer.

The Court stated:

. . . In my view, what the government has
established, looking at Application Note 2, is
a situation where the defendant, by a
preponderance of the evidence, was at least
someone who had management responsibilities
over property, assets, or the activities of
the criminal organization.
I find that the government has shown that the
defendant was a manager or supervisor by at
least a preponderance of the evidence, but I'm
not convinced that the government has shown by
a preponderance that the defendant was an
organizer or leader. So, under Section
3B1.1(b), the Court will assess three levels
instead of the four levels.
(Cr. Doc. #296, p. 36.)
The Court’s adjustment for role is a factual finding that
would have been reviewed on direct appeal for clear error.

United

States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002).

“A

finding is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.”

United States v. Badio, 178 F. App'x 933, 934 (11th

- 34 -

Cir. 2006) (quoting Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 573-74 (1985)).

There was ample evidence presented at

trial before the Court to support the role enhancement.

The Court

of Appeals would not have found an error in this factual finding
even if raised. “[A]ppellate counsel who files a merits brief need
not (and should not) raise every nonfrivolous claim, but rather
may select from among them in order to maximize the likelihood of
success on appeal.”

Smith v. Robbins, 528 U.S. 259, 288 (2000)

(citing Jones v. Barnes, 463 U.S. 745 (1983)).

Appellate counsel

was not deficient for failing to raise this issue.
(2)
Count

Ground Eleven:
Nine

charged

Sufficiency of Evidence of Count Nine

that

on

or

about

October

29,

2013,

petitioner, having been convicted of more than nine prior felony
offenses, knowingly possessed one or more firearms and ammunition
in and affecting interstate commerce.

(Cr. Doc. #31.)

Count Nine

identified three shotguns, three rifles, and forty-two rounds of
various brands of ammunition.
Petitioner asserts that the government must prove that he
actually knowingly possessed the firearm alleged in Count Nine.
Petitioner argues that seizing the firearm or ammunition from the
closet of a bedroom does not prove he actually possessed the
firearm, and therefore the government failed to establish the
necessary elements beyond a reasonable doubt.

- 35 -

Petitioner argues

that appellate counsel was obligated to raise this issue.

(Cv.

Doc. #2, p. 20.)
Defendant need not physically possess the firearm in order to
be found guilty.

The jury was instructed as follows with regard

to possession:
The
law
recognizes
several
kinds
of
possession.
A
person
may
have
actual
possession, constructive possession, sole
possession, or joint possession.
“Actual possession” of a thing occurs if a
person knowingly has direct physical control
of it.
“Constructive possession” of a thing occurs if
a person doesn’t have actual possession of it,
but has both the power and the intention to
take control over it later.
“Sole possession” of a thing occurs
person is the only one to possess it.

if

a

“Joint possession” of a thing occurs if two or
more people share possession of it.
The
term
“possession”
includes
actual,
constructive, sole, and joint possession.
(Cr. Doc. #188, p. 17.)

Petitioner’s listed address on his

driver’s license was the 1606 Hibiscus address where the items
were seized, and his motorcycle was parked near the front door of
the house.

(Cr. Doc. #307, p. 10.)

There were clearly sufficient

facts showing petitioner’s association with the premises and its
contents.

When reviewing for sufficiency of the evidence, an

appellate court views the evidence in the light most favorable to

- 36 -

the government, with all inferences and credibility choices made
in the government’s favor.
497 (11th Cir. 2011).

United States v. Gamory, 635 F.3d 480,

A conviction is affirmed if, based on this

evidence, a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. Id.

The facts presented to the jury

in this case amply established at least constructive possession.
Appellate counsel is authorized to pick and choose among issues,
and committed no error in declining to raise this issue.

The

motion is denied on this issue.
(3)

Ground Twelve: Insufficient Evidence of Conspiracy

Petitioner argues that appellate counsel should have argued
against the finding of an overall conspiracy in Count One, but
instead counsel made an unsuccessful argument that was vague and
broad. Petitioner argues that what the government alleged and
proved were multiple conspiracies, and not a single conspiracy.
The jury was provided the following instruction with regard
to finding a single overall conspiracy:
Proof of several separate conspiracies is not
proof of the single, overall conspiracy
charged in the Superseding Indictment unless
one of the several conspiracies proved is the
single overall conspiracy.
You must decide whether the single overall
conspiracy charged existed between two or more
conspirators. If not, then you find the
Defendants not guilty of that charge.

- 37 -

But if you decide that a single overall
conspiracy did exist, then you must decide who
the conspirators were. And if you decide that
a particular Defendant was a member of some
other conspiracy – not the one charged – then
you must find that Defendant not guilty.
So to find a Defendant guilty, you must all
agree that the Defendant was a member of the
conspiracy charged – not a member of some
other separate conspiracy.
(Cr. Doc. #188, pp. 13-14.)

The Eleventh Circuit has addressed

the issue of a variance between an indictment and the proof at
trial:
Because the jury determines the question of
fact as to whether the evidence establishes a
single conspiracy, the arguable existence of
multiple conspiracies does not constitute a
material variance from the indictment if,
viewing the evidence in the light most
favorable to the Government, a reasonable
trier of fact could have found that a single
conspiracy existed beyond a reasonable doubt.
United States v. Adams, 1 F.3d 1566, 1584
(11th Cir. 1993). Accordingly, we will not
disturb the determination of the jury that a
single conspiracy exists if supported by
substantial
evidence.
United
States
v.
Calderon, 127 F.3d 1314, 1327 (11th Cir.
1997).
United States v. Moore, 525 F.3d 1033, 1042 (11th Cir. 2008).

As

long as there is a common goal, which is read broadly, separate
transactions are not necessarily separate conspiracies.

United

States v. Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008).
Clear and substantial evidence supports the finding of a
single

conspiracy.

With

the

help

- 38 -

of

Jason

Nixon,

who

was

purchasing drugs, the Fort Myers Police Department carried out an
investigation.

Nixon went to a house on Utana Avenue to buy drugs

from petitioner, and also went to 6226 Demery to make controlled
buys from co-defendant James Hood several times, and petitioner
was in the kitchen during a June 26, 2013 transaction.

On August

8, 2013, Nixon purchased cocaine directly from petitioner.

It was

a search at the Demery address that led officers to the house at
1606 Hibiscus Avenue.

(Cr. Doc. #307, pp. 3-6.)

As officers maintained surveillance on the Demery address,
Nicholas Herman was observed making purchases and after he was
charged with possession of cocaine and heroin, Mr. Herman became
a confidential informant.

Herman made a series of controlled

purchases from petitioner’s brother and co-defendant James Hood,
and later identified co-defendant Morris for some of the purchases.
(Id., pp. 8-9.)

A second search warrant was executed for the 6226

Demery address, and when officers arrived no one was inside because
they were all next door at 6220 Demery.

The officers executed a

search warrant for this second Demery address where Terry Little,
an individual who lived at 6226 Demery testified that petitioner
lived next door at 6220 Demery.

Little testified that everyone

at 6226 Demery seemed to be working for petitioner.
10.)

- 39 -

(Id., pp. 9-

The

jury’s

finding

of

a

single

conspiracy

was

clearly

supported by substantial evidence linking the controlled buys with
the properties and defendants.

Appellate counsel did not provide

deficient performance by failing to raise this issue on direct
appeal.

The motion denied on this ground.
(4)

Ground Thirteen:

Rehearing and En Banc Petitions

Petitioner argues that the officers who breached the 1606
Hibiscus address had no reason to believe additional individuals
were inside after suspects were arrested, and the firearm should
have been suppressed.

Petitioner argues that appellate counsel

had a duty to file a petition for rehearing and rehearing en banc
because the facts in his case were closer to United States v.
Chavas, 169 F.3d 687, 692 (11th Cir. 1999) than the case cited,
United States v Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983).
Appellate counsel did raise the legal argument on direct
appeal.

The Eleventh Circuit found no error and agreed with the

district court that the officers did not exceed their authority
during the protective sweep:
Here, Hood contends that, when officers swept
1606 Hibiscus after taking him into custody,
they exceeded the scope of a permissible
protective sweep. Hood asserts that the
officers moved him outside the home, at which
point the need to sweep for dangerous
individuals was extinguished. In addition,
Hood argues that the officers who conducted
the sweep had no basis for believing that
there was anyone else inside the home who

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presented a danger. We find these arguments
unpersuasive.
(Cr. Doc. #307, p. 36.)
A petition for rehearing by the appellate panel “must state
with particularity each point of law or fact that the petitioner
believes the court has overlooked or misapprehended and must argue
in support of the petition.”

Fed. R. App. P. 40(a)(2).

A

petitioner for rehearing or an en banc hearing is the exception
rather than the rule.

“An en banc hearing or rehearing is not

favored and ordinarily will not be ordered unless: (1) en banc
consideration is necessary to secure or maintain uniformity of the
court's decisions; or (2) the proceeding involves a question of
exceptional importance.”

Fed. R. App. P. 35(a).

There was no

basis for appellate counsel to believe that rehearing or an en
banc hearing was appropriate, and no obligation to file such a
petition.
Petitioner’s right to effective assistance of counsel does
not extend to motions for rehearing after denial of a direct
appeal.
1300,

See Wainwright v. Torna, 455 U.S. 586, 587–88, 102 S. Ct.

1301

(1982)

(“[A]

criminal

defendant

does

not

have

a

constitutional right to counsel to pursue discretionary . . .
applications for review in this Court [so] he could not be deprived
of the effective assistance of counsel.”)

“Any failure by his

counsel on appeal to pursue discretionary review in either the

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Court of Appeals or the Supreme Court . . . cannot give rise to an
ineffective assistance of counsel claim.”

Woods v. United States,

No. 1:08-CV-0098-MEF, 2010 WL 446998, at *7 (M.D. Ala. Feb. 4,
2010).

As the failure to pursue a rehearing is discretionary, and

there is no guarantee that the motion would be granted, there was
no ineffective assistance of counsel.

The motion is denied on

this claim.
(5)

Ground Fourteen:

Government Destruction of Evidence

Petitioner argues that he is entitled to a new trial because
the government acted in bad faith when it destroyed evidence and
prevented

petitioner

from

challenging

the

FDLE’s

lab

report.

Petitioner argues there was no reason placed on the record for
destroying the evidence months before trial.
The

evidence,

including

the

cocaine,

was

destroyed

approximately 6 months before the commencement of trial.
Doc. #276, pp. 111, 112.)

(Cr.

The seized items found at 1606 Hibiscus

Avenue were taken into evidence and placed in storage, including
the cocaine.

(Id., p. 110.)

The cocaine was sent to the FDLE for

chemistry analysis, and then it was returned to the Lee County
Sheriff’s Office after that process was done for destruction.
(Id., pp. 110-111.)
Unless

there

is

proof

that

“the

destroyed

evidence

was

exculpatory or that the evidence was destroyed in bad faith”,

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Rolande-Gabriel, 938 F.2d at 1238, there is no prejudice.

The

Eleventh Circuit has held “where the material has been destroyed
in spite of the government's good faith attempt to preserve it,
testimony as to the nature of the material need not be suppressed
absent some showing that the testing of the material by another
expert would have been reasonably likely to produce evidence
favorable to the defendant.”

United States v. Nabors, 707 F.2d

1294, 1297 (11th Cir. 1983).
Evidence was presented at trial by way of pictures of what
was found, as well as through forensic experts as to the nature of
the substance, i.e., cocaine.

Mere speculation that it must be

bad faith is insufficient because petitioner has not shown that
evidence or his own expert would have found evidence that it was
not cocaine.

The motion is denied.

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. #327) is DENIED.
2.

The Clerk of the Court shall enter judgment accordingly

and close the civil file.

The Clerk is further directed to place

a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:

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

A prisoner seeking a writ of habeas

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

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

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

“A [COA] may issue . . . only if the

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

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

reasonable

jurists

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

Petitioner has not made the

requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of April, 2019.

Copies:
Petitioner
AUSA

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15th

day