Lester v. USA
Filing
9
ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). Signed by Judge Timothy J. Corrigan on 12/22/2014. (JHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RODERICK LESTER,
Petitioner,
vs.
Case Nos.:
UNITED STATES OF AMERICA,
3:13-cv-982-J-32JBT
3:10-cr-296-J-32JBT-1
Respondent.
_____________________________________/
ORDER
This case is before the Court on Petitioner Roderick Lester’s motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) 1, filed on August
12, 2013, and Supporting Memorandum (Doc. 7), filed on July 18, 2014. 2
The
government filed a response, docketed on August 15, 2014. (Doc. 8). Pursuant to
Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined
that an evidentiary hearing is not necessary to decide the petition.
Upon
consideration of Petitioner’s and the Government’s submissions, the Court
determines that Petitioner’s Motion to Vacate is due to be denied.
Petitioner mistakenly stylized his § 2255 motion as an “Application for Leave to File a Second
or Successive Motion to Vacate, Set Aside, or Correct Sentence.” The record does not show that
Petitioner has previously attacked the instant federal conviction under 28 U.S.C. § 2255. Therefore,
the instant motion is a first § 2255 motion, and the Court has jurisdiction to proceed.
2
Citations to Petitioner’s criminal case file, United States of America v. Roderick Lester, 3:10cr-296-J-32TEM, are denoted as “Crim. Doc. ____.” Citations to Petitioner’s civil § 2255 case file, 3:13cv-982-J-32TEM, are denoted as “Doc. ____.”
1
1
I.
Procedural History
On December 7, 2010, a grand jury sitting in the Middle District of Florida
indicted Petitioner on one count of possession of a firearm and ammunition by a
convicted felon pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Crim. Doc. 1). After
an unsuccessful motion to suppress, see Crim. Docs. 19, 20, 26, Petitioner stipulated
that he had been convicted of several felonies under Florida law, that on the date of
his arrest he was carrying a firearm and ammunition, and that he admitted to police
officers during his arrest that he possessed the firearm. (Crim. Doc. 39 at ¶¶ 1-4, 6).
Petitioner further stipulated that the gun was connected to interstate commerce. Id.
at ¶ 5. Petitioner “acknowledge[d] that by this stipulation he is agreeing to all the
facts set forth [in the stipulation] and that he is further agreeing that the elements
required to establish that he is factually guilty of the offense of Count One of the
Indictment pending before him are established.” Id. at 3. Petitioner proceeded to a
bench trial, where the Court adjudicated him guilty of the offense. (Crim. Docs. 38
and 41). The Court sentenced Petitioner to 63 months’ imprisonment, followed by
three years of supervised release. (Crim. Doc. 46). Thereafter, Petitioner appealed
the Court’s denial of his motion to suppress to the Eleventh Circuit Court of Appeals,
which affirmed the Court’s denial of suppression. United States v. Lester, 477 F.
App’x 697, 698 (11th Cir. 2012).
Following the Eleventh Circuit’s decision, Petitioner requested that the
Supreme Court grant certiorari review, which the Supreme Court denied on October
9, 2012. United States v. Lester, 133 S. Ct. 465 (2012). Petitioner’s conviction and
2
sentence became final on October 9, 2012 when the Supreme Court denied the
petition for a writ of certiorari. Washington v. United States, 243 F.3d 1299, 130001 (11th Cir. 2001) (per curiam). Petitioner had one year from that date, or until
October 9, 2013, to file a motion to vacate under 28 U.S.C. § 2255(f)(1). Petitioner
filed his Motion to Vacate on August 12, 2013, and is therefore timely under 28 U.S.C.
§ 2255(f)(1).
Petitioner’s Motion identified two grounds for relief: (1) that counsel “was
constitutionally ineffective because he failed to investigate the crime charged[,]” and
(2) that counsel was ineffective for failing to “seek Brady material which would have
proved petitioner’s innocence.”
(Doc. 1 at 5).
At first, Petitioner did not file a
supporting memorandum with his bare-bones § 2255 form.
The Court ordered
Petitioner to file a supporting memorandum by March 31, 2014 so that he could flesh
out his claims. (Doc. 3). The deadline came and went without Petitioner filing a
memorandum, and on May 27, 2014 the United States moved to dismiss for failure to
prosecute.
(Doc. 4).
The Court gave Petitioner a second opportunity to file a
memorandum by July 18, 2014. (Doc. 6). On July 18, 2014, Petitioner filed a 3-page
supporting memorandum. (Doc. 7). The United States responded in opposition on
August 15, 2014 (Doc. 8).
II.
Discussion
Under 28 U.S.C. § 2255, a person in federal custody may move to vacate, set
aside, or correct his sentence. Section 2255 permits such collateral challenges on four
specific grounds: (1) the imposed sentence was in violation of the Constitution or laws
3
of the United States; (2) the court did not have jurisdiction to impose the sentence;
(3) the imposed sentence exceeded the maximum authorized by law; or (4) the
imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008).
Only jurisdictional claims, constitutional claims, and claims of error that are so
fundamentally defective as to cause a complete miscarriage of justice will warrant
relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86
(1979). A petitioner’s challenge to his sentence based on a Sixth Amendment claim
of ineffective assistance of counsel is normally considered in a collateral attack.
United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).
Although a court should liberally construe a pro se litigant’s habeas petition,
Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991), that does not relieve a
petitioner of the responsibility to plead specific, non-conclusory facts – rather than
mere legal conclusions – that support a claim for relief. Winthrop-Redin v. United
States, ____ F.3d ____, 2014 WL 46699391 at *4 (11th Cir. Sep. 23, 2014) (quoting
Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 1989)) (“[A] petitioner need
only allege – not prove – reasonably specific, non-conclusory facts that, if true, would
entitle him to relief.”). “A petitioner is not entitled to an evidentiary hearing… when
his claims are merely conclusory allegations unsupported by specifics...” Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (emphasis in original) (internal citations
and quotations omitted). A statement of legal conclusions or a formulaic recitation of
the elements of a claim will not suffice. A district court need not hold an evidentiary
hearing if the petitioner’s allegations are “patently frivolous,” “based on unsupported
4
generalizations,” or “affirmatively contradicted by the record.” Holmes v. United
States, 876 F.2d 1545, 1552 (11th Cir. 1989).
To succeed on a claim of ineffective assistance of counsel, a petitioner must
show both that counsel’s performance fell below an objective standard of
reasonableness and that, as a result, he suffered prejudice sufficient to undermine
confidence in the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668,
687 (1984). However, “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. The petitioner bears the burden of proof on both
the “performance” prong and the “prejudice” prong, and he must prove both to prevail.
Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001).
Here, Petitioner alleges two instances of ineffective assistance of counsel at an
abstract level. In Ground One, Petitioner alleges that counsel rendered ineffective
assistance by failing to investigate the crime charged or research the applicable law,
and that “[c]ounsels unprofessional legal advice renders Petitioners guilty plea
Involuntary.” (Doc. 1 at 5) (sic). 3 Petitioner does not identify what his attorney’s
alleged misadvice was, nor does Petitioner explain what information counsel’s further
investigation would have or should have discovered. Petitioner also does not explain
how the allegedly deficient advice or investigation influenced him to enter into a
stipulation agreement, let alone that his attorney’s performance caused him to
Petitioner did not in fact plead guilty, although he did enter a series of stipulations amounting
to an admission of guilt before proceeding to a bench trial. See Crim. Docs. 38, 39, 41. Counsel for
Petitioner took this approach in order to preserve the right to appeal the Court’s denial of suppression.
See Note 4, infra.
3
5
involuntarily and unknowingly enter into the agreement. (See Doc. 1 at 5; Doc. 7 at
2). Petitioner only alleges that his attorney inadequately investigated his case, and
that this somehow “induced Petitioner to plead guilty.” (Doc. 7 at 2). Thus, not only
does Petitioner fail to inform the Court about what kind of deficient performance
counsel allegedly provided (i.e. Strickland’s performance prong), but Petitioner also
gives the Court no way of evaluating the connection between counsel’s performance
and Petitioner’s decision to enter into the stipulation agreement (i.e. prejudice).
Where the record is unclear or incomplete about an attorney’s actions, the Court will
presume that the attorney did what he should have done, and that the attorney
exercised reasonable professional judgment. Williams v. Head, 185 F.3d 1223, 1228
(11th Cir. 1999). Accordingly, because Petitioner’s Ground One claim is comprised of
conclusory allegations unsupported by specifics, it fails to overcome the considerable
presumption that counsel rendered effective assistance.
Moreover, the record refutes Petitioner’s claim that counsel inadequately
investigated his case.
Trial counsel assiduously litigated a motion to suppress
wherein counsel sought to exclude the firearm by arguing it was obtained as the
result of an illegal Terry stop. (See Crim. Docs. 19 and 20; Crim. Doc. 27 at 77-81).
Counsel cross-examined the stopping officer for 29 transcript pages, during which he
sought to establish that the officer lacked reasonable, articulable suspicion for
stopping Petitioner. (Crim. Doc. 27 at 23-52). Because the police officer also stopped
Petitioner partly in reliance on a “Be On the Lookout” (BOLO) report describing
suspects in a recent burglary, counsel summoned an investigator to testify about the
6
neighborhood where the police stopped Petitioner, as well as the time and distance
between where Petitioner was stopped and where the burglary occurred. (Crim. Doc.
27 at 54-65). The Court ultimately denied the motion to suppress (Crim. Docs. 26
and 33), after which Petitioner stipulated to facts establishing his guilt at a bench
trial for the strategic purpose of preserving his right to appeal the Court’s denial of
the motion to suppress.
(See Crim. Doc. 62 at 4-8). 4
The record reflects that
suppression was the pivotal issue, for it was otherwise beyond dispute that (a)
Petitioner had several prior felony convictions, (b) Petitioner was carrying a loaded
gun on the night of the stop and search, and (c) the gun and ammunition were
manufactured out-of-state, thereby connecting them to interstate commerce. Thus,
stipulating to facts proving his guilt and proceeding to a bench trial was strategically
the best option for Petitioner, because that route preserved his right to appeal the
Court’s decision on the motion to suppress. Accordingly, based on the record of the
suppression hearing and bench trial, there is little doubt that counsel competently
investigated Petitioner’s case and made an informed, strategic decision about how to
proceed.
Ordinarily, a plea of guilty would bar a defendant from subsequently challenging any nonjurisdictional defects, including the denial of a motion to suppress, United States v. Bell, 457 F.2d
1231, 1234 n.1 (5th Cir. 1972), but the Federal Rules of Criminal Procedure allow a defendant to enter
a conditional plea of guilty that preserves the right to appeal the adverse determination of a specified
pretrial motion. Fed. R. Crim. P. 11(a)(2). However, the United States Attorney’s Office for the Middle
District of Florida has a policy against conditional plea agreements. See Crim. Doc. 62 at 4-8.
Therefore, a defendant in the Middle District of Florida, such as Petitioner, who might otherwise like
to enter a conditional guilty plea that would preserve the right to appeal, must instead follow the
procedure used in this case in order to preserve his appellate rights.
4
7
In Ground Two, Petitioner generally alleges that counsel was ineffective for
failing to seek or obtain Brady material 5, and because of this failure counsel “could
not advise Petitioner of the wisdom of wether [sic] the Government had sufficient
evidence to convict Petitioner or not.”
Id.
Petitioner speculates that he “was
prejudiced by Counsels Unprofessional Errors, because, had Counsel obtained Brady
Material, he would not have recommended that he plead guilty.” (Doc. 7 at 2) (sic).
Again, Petitioner does not provide specifics. Petitioner does not describe what, if any,
Brady material the government had in its possession that counsel failed to uncover.6
In turn, because Petitioner does not describe the content of any alleged Brady
material, he fails to establish prejudice because the Court cannot evaluate how such
material would have affected Petitioner’s decision-making or altered the outcome of
his case. Petitioner does not explain how any hypothetical Brady material would
have undermined the incriminating evidence, pointed to his innocence, or otherwise
prevented him from stipulating to his guilt.
Indeed, Petitioner’s allegation that there might have been hidden material
demonstrating his innocence is implausible in light of (1) the evidence introduced at
the hearing on his motion to suppress, (2) the testimony introduced at his bench trial,
and (3) his stipulation of guilt – which, significantly, he does not claim to have been
tricked or coerced into entering. At Petitioner’s suppression hearing, a police officer’s
Brady v. Maryland, 373 U.S. 87 (1963) (the government must disclose evidence in its
possession that is favorable to a defendant).
6
Notably, despite apparently being aware of Brady, Petitioner does not separately allege any
Brady violations by the Government. Thus, while Petitioner does not allege that the Government
actually had Brady material, he accuses counsel of being ineffective for not discovering it.
5
8
testimony showed that on the date of the encounter Petitioner admitted he was
carrying a firearm, and an officer’s search revealed that he was indeed carrying a
loaded .380 caliber semi-automatic pistol. (Crim. Doc. 26 at 6-7; Crim. Doc. 27 at 21).
A records search by the officer also reflected that Petitioner had multiple felony
convictions for burglary, homicide, and weapons violations. (Crim. Doc. 26 at 6; Crim.
Doc. 27 at 18). Petitioner later stipulated that he was a convicted felon, that he was
carrying a firearm, and that the firearm was connected to interstate commerce. (See
Crim. Doc. 39, generally; Crim. Doc. 62 at 12-13). At Petitioner’s bench trial, the
Court explained that these admissions would compel the Court to find him guilty.
(Crim. Doc. 62 at 8). Petitioner stated he understood. Id. Petitioner affirmed that
he had discussed the stipulations and waiver of jury trial with his attorney as part of
a plan to preserve his right to appeal the Court’s denial of suppression. Id. The Court
advised Petitioner that he had the right to make the government prove the elements
of the charge beyond a reasonable doubt to a jury. Id. at 9-10. Petitioner stated he
understood, and confirmed that he knowingly and freely waived the right to a jury
trial. Id. at 10-11. The Court then reviewed each of Petitioner’s stipulations, and
Petitioner stated that he had voluntarily agreed to them in consultation with his
attorney. Id. at 12-21. Considering that Petitioner stated, under oath, that he freely
and knowingly stipulated to facts proving his guilt beyond a reasonable doubt after
consulting his lawyer, his allegations that counsel’s inadequate investigation or
failure to discover nondescript Brady material rendered his stipulations involuntary
are implausible from the face of the record. Accordingly, it is hereby
9
ORDERED:
1. Petitioner Roderick Lester’s motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 (Doc. 1; Crim. Doc. 72) is DENIED.
2. The Clerk shall enter judgment in favor of the United States and against
Roderick Lester, and close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has not absolute entitlement to
appeal a district court’s denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (COA). Id. “A [COA] may issue…
only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 2253(c)(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) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Petitioner has not made the requisite showing in these circumstances. Because
Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal
10
in forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 22nd day of December,
2014.
lc 19
Copies:
Counsel of record
Pro se party
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?