Hardy v. United States of America

Filing 11

ORDER denying 1 Motion to Vacate, Set Aside, or Correct Sentence. The Clerk shall close the file. Signed by Judge Timothy J. Corrigan on 4/12/2017. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BRANDON HARDY,
Petitioner,
vs.

Case No.:

UNITED STATES OF AMERICA,
Respondent.

3:14-cv-765-J-32JBT
3:11-cr-119-J-32JBT

/
ORDER

This case is before the Court on Petitioner Brandon Meredith Hardy’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 1). 1 The
United States filed a response opposing relief. (Civ. Doc. 6). Petitioner did not file a
reply. On November 1, 2016, the Court held an evidentiary hearing on Ground One
of the Motion to Vacate. (Civ. 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 with respect to Grounds Two and Three. See Aron v. United States,
291 F.3d 708, 714–15 (11th Cir. 2002) (an evidentiary hearing on a § 2255 petition is
not required when the petitioner asserts allegations that are affirmatively
contradicted by the record or patently frivolous, or if in assuming that the facts he

Citations to the record in the underlying criminal case, United States vs.
Brandon Meredith Hardy, Case No. 3:11-cr-119-J-32JBT, will be denoted as “Crim.
Doc. __.” Citations to the record in the civil § 2255 case, Case No. 3:14-cv-765-J32JBT, will be denoted as “Civ. Doc. __.”
1

1

alleges are true, he still would not be entitled to any relief). For the reasons set forth
below, Petitioner’s Motion to Vacate is due to be denied.
I.

Background
On May 24, 2011, a grand jury indicted Petitioner on one count of attempting

to persuade, induce, entice, or coerce a person whom he believed to be a minor to
engage in sexual activity constituting a criminal offense, in violation of 18 U.S.C. §
2422(b). Petitioner pled not guilty and proceeded to a jury trial.
Petitioner’s trial lasted from March 6, 2012 to March 8, 2012. During the trial,
the government presented evidence that Petitioner was on a teen-chat website when
he initiated contact with an undercover officer whom Petitioner believed to be a 12year old boy named “Paul.” See United States v. Hardy, 520 F. App’x 835, 836 (11th
Cir. 2013).

Through a series of conversations, Petitioner described engaging in

various sexual activities with “Paul” in graphic detail. Id. Petitioner “often suggested
sexual activities without any encouragement from Paul,” and he repeatedly told
“Paul” that the sexual activity would make “Paul” “feel good” and be “a lot of fun.” Id.
at 838. During their conversations, Petitioner stated that if they met, he would bring
lubricant and a picture to arouse “Paul.” See id. Five days after initiating contact
with “Paul” online, Petitioner drove from Georgia to an address in St. Augustine,
Florida, which Petitioner thought to be Paul’s home.

Id. at 836.

There, law

enforcement officers were waiting for Petitioner and placed him under arrest.
Petitioner had in his possession both an image of an adult male sexually abusing a

2

prepubescent boy and strawberry-flavored lubricant, both of which Petitioner had
discussed in his online conversations. See id. at 838.
Petitioner did not put on a case of his own.

However, through cross-

examining the government’s witnesses, the recording of a post-arrest interview
between Petitioner and police, and closing argument, Petitioner countered that he
did not intend to entice “Paul” to engage in sexual activity. (See, e.g., Crim. Doc. 89
at 183-87; Crim. Doc. 90 at 54-68). Rather, Petitioner argued that during his online
conversations with “Paul,” he was merely playing out sexual fantasies, but he did not
intend to follow through with them. Petitioner argued that, although he drove several
hours to meet “Paul,” he did not have the nerve to engage in sexual activity with the
boy, but instead would only have socialized with “Paul” and taken him out for a meal.
The jury did not accept Petitioner’s defense. After deliberating for a little over
two hours, the jury returned a verdict of guilty. (See Crim. Doc. 65; Crim. Doc. 90 at
96-97).
After trial, and a few days before sentencing, the United States disclosed that
it had come into possession of certain letters that Petitioner had written while he was
in pretrial detention. In the letters, Petitioner made statements that were consistent
with the defense’s theory that he lacked intent to act upon his sexual fantasies. (See
Civ. Doc. 6 at 11-13; Crim. Doc. 70; Crim. Doc. 91 at 2-5). Petitioner’s trial counsel
moved to continue the sentencing hearing to investigate whether the newly-disclosed
letters warranted filing a motion for a new trial, pursuant to Rule 33(b)(1), Federal
Rules of Criminal Procedure, and Brady v. Maryland, 373 U.S. 83 (1963). After

3

investigating, counsel concluded that the letters did not provide grounds to move for
a new trial, because (1) the United States disclosed the letters almost as soon as it
became aware of them, (2) the letters would not have been admissible at trial anyway
unless Petitioner testified, and even then, the letters would only have been admissible
to rebut an allegation that Petitioner had recently fabricated his testimony, and (3)
in any event, Petitioner himself was aware of the letters because he was the one who
wrote them. (See Crim. Doc. 70 at 2). Therefore, trial counsel notified the Court that
he would not be filing a motion for a new trial.
Accordingly, the Court moved forward with sentencing on July 24, 2012. (See
Crim. Doc. 91). The Court sentenced Petitioner to a term of 120 months in prison,
which was the mandatory minimum set forth under 18 U.S.C. § 2422(b). (Crim. Doc.
91 at 29; Crim. Doc. 74).
Petitioner filed a timely notice of appeal. (Crim. Doc. 76). On direct review,
the Eleventh Circuit Court of Appeals affirmed Petitioner’s conviction and sentence.
(Crim. Doc. 102); Hardy, 520 F. App’x at 840. Petitioner did not petition the Supreme
Court for a writ of certiorari. Petitioner timely filed the current Motion to Vacate.
II.

Petitioner’s Motion to Vacate
Petitioner raises three grounds in his Motion to Vacate, all of which involve

the alleged ineffective assistance of counsel. First, Petitioner contends that counsel
was ineffective because he refused to accept Petitioner’s decision to testify. (Civ. Doc.
1 at 4). Second, Petitioner argues that counsel was ineffective for failing to move for
a new trial based on the United States’ disclosure of Petitioner’s own letters a few
4

days before sentencing.

(Id. at 5).

Third, Petitioner argues that counsel was

ineffective for not presenting witnesses or evidence concerning Petitioner’s mental
health, psychosexual therapy, and psychosexual evaluation at the jury trial. (Id. at
7). In Ground Three, Petitioner also argues that counsel was ineffective for not
seeking a mental health jury instruction, although he does not specify what that
instruction would have been. (Id.).
III.

Discussion

Pursuant to Title 28, United States Code, Section 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 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 fundamental 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 a
collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).
To succeed on a claim of ineffective assistance of counsel, a petitioner must
show both (1) that counsel’s performance was deficient, and (2) that as a result of
counsel’s deficient performance, the petitioner suffered prejudice.
5

Strickland v.

Washington, 466 U.S. 668, 687 (1984). In determining whether counsel performed
deficiently, the Court adheres to the standard of reasonably effective assistance.
Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). The petitioner must show, in
light of all the circumstances, that counsel’s performance fell outside the “wide range
of professionally competent assistance.” Id. There is a “strong presumption in favor
of competence, [and] the petitioner’s burden of persuasion – though the presumption
is not insurmountable – is a heavy one.” Chandler v. United States, 218 F.3d 1305,
1314 (11th Cir. 2000).

When trial counsel is experienced, the presumption of

competence is even greater. Id. at 1316.
To show that counsel’s deficient performance prejudiced the defendant, the
petitioner must show that there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. Id. at 1036-37 (citing
Strickland, 466 U.S. at 694). A “reasonable probability” is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694. However, “[t]he
likelihood of a different result must be substantial, not just conceivable.” Harrington
v. Richter, 562 U.S. 86, 112 (2011).
In determining whether a petitioner has met the two prongs of deficient
performance and prejudice, the Court considers the totality of the evidence. Id. at
695. However, because both prongs are necessary, “there is no reason for a court…
to approach the inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also
Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss

6

the performance deficiency component of [petitioner’s] ineffective assistance claim
because failure to satisfy the prejudice component is dispositive.”).
A. Ground One: Whether counsel denied Petitioner the right to testify
Petitioner asserts that counsel gave ineffective assistance because he told
counsel he wanted to testify, but counsel refused to accept Petitioner’s decision to do
so. (Civ. Doc. 1 at 4). Petitioner states that during pretrial discussions, he “expressed
[to counsel] his desire to testify.” (Id.). “Counsel told petitioner that if he testified he
could be subjected to cross-examination but, nevertheless, petitioner affirmatively
expressed his strong desire to testify to counsel.” (Id.). “Despite petitioner’s demand
to testify,” Petitioner continues, “counsel refused to accept petitioner’s decision and
did not call him, essentially waiving petitioner’s right to testify without permission.”
(Id.).
In an affidavit attached to the Motion to Vacate, Petitioner sets forth twelve
points he would have testified to on direct examination. (Id. at 15-17). The essence
of Petitioner’s proffered testimony is that he did not intend to have sex with “Paul.”
The Court held an evidentiary hearing on this allegation on November 1, 2016.
(Civ. Doc. 8). The Court heard testimony from Petitioner and his trial counsel, A.
Russell Smith. The Court also received two exhibits, one each from Petitioner and
the United States. (Civ. Doc. 8-1; Civ. Doc. 8-2). Based on the applicable law and the
testimony adduced at the hearing, the Court concludes that trial counsel did not
perform deficiently with respect to Petitioner’s right to testify.

7

A defendant has a constitutional right to testify in his own behalf. Rock v.
Arkansas, 483 U.S. 44, 51-53 (1987). That right is personal and fundamental; it
cannot be waived by either the court or trial counsel, but only by the defendant.
Teague, 953 F.2d at 1532. Indeed, the defendant is the one “who above all others may
be in a position to meet the prosecution's case.” Ferguson v. Georgia, 365 U.S. 570,
582 (1961).
The “trial court has no sua sponte duty to explain to a criminal defendant that
he has a right to testify or to conduct an on-the-record inquiry into whether a
defendant [who] is not testifying has waived the right knowingly, voluntarily, and
intelligently.” United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998)
(citations omitted). The Eleventh Circuit has opined that it “would be inappropriate
to require the trial court to discuss this choice with the defendant” because “[s]uch a
requirement would unnecessarily intrude into the attorney-client relationship and
could unintentionally influence the defendant in his or her choice.” Id. (quoting
Teague, 953 F.2d at 1533 n.8). 2
Instead, “the appropriate vehicle for claims that the defendant’s right to testify
was violated by defense counsel is a claim of ineffective assistance of counsel under
Strickland....” Teague, 953 F.2d at 1534.
Where the defendant claims a violation of his right to testify by defense
counsel, the essence of the claim is that the action or inaction of the
attorney deprived the defendant of the ability to choose whether or not
There can be, however, “exceptional, narrowly defined circumstances” that
require a district court to conduct a colloquy with a defendant about the right to
testify. Van De Walker, 141 F.3d at 1452 n.2; United States v. Hung Thien Ly, 646
F.3d 1307, 1317 (11th Cir. 2011).
2

8

to testify in his own behalf. In other words, by not protecting the
defendant's right to testify, defense counsel's performance fell below the
constitutional minimum, thereby violating the first prong of
the Strickland test. For example, if defense counsel refused to accept the
defendant's decision to testify and would not call him to the stand,
counsel would have acted unethically to prevent the defendant from
exercising his fundamental constitutional right to testify. Alternatively,
if defense counsel never informed the defendant of the right to testify,
and that the ultimate decision belongs to the defendant, counsel would
have neglected the vital professional responsibility of ensuring that the
defendant's right to testify is protected and that any waiver of that right
is knowing and voluntary.
Id.
Teague “delineated the duties of a trial counsel with respect to a defendant’s
right to testify. Counsel must advise the defendant (1) of his right to testify or not
testify; (2) of the strategic implications of each choice; and (3) that it is ultimately for
the defendant himself to decide whether to testify.” McGriff v. Dep’t of Corrections,
338 F.3d 1231, 1237 (11th Cir. 2003) (citing Teague, 953 F.2d at 1533). Counsel gives
ineffective assistance with respect to the defendant’s right to testify where counsel
“has refused to accept the defendant's decision to testify and refused to call him to
the

stand,

or

where

defense

counsel

never

informed

the

defendant

of

his right to testify and that the final decision belongs to the defendant alone.” Gallego
v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999).
While the decision to testify is the defendant’s alone, an attorney does not
render ineffective assistance by strategically advising a defendant not to take the
stand. “[I]f defense counsel believes that it would be unwise for the defendant to
testify, counsel may, and indeed should, advise the client in the strongest possible
terms not to testify.” Teague, 953 F.2d at 1533; see also United States v. Willis, 273
9

F.3d 592, 598 (5th Cir. 2001) (counsel could reasonably advise defendant not to testify
out of concern that he would be impeached with prior convictions under Fed. R. Evid.
609).
At the evidentiary hearing, the Court heard Petitioner’s testimony first. (Civ.
Doc. 9 at 6-40). Petitioner recalled that he met several times with counsel before trial
to review and discuss the evidence. (Id. at 7-8, 17-18). At one point, Petitioner and
counsel had a meeting where Petitioner decided – against counsel’s advice – to decline
a plea offer and proceed to trial. (Id. at 8-9). 3 Once Petitioner made that decision,
the conversation turned to whether he should take the stand.

(Id. at 10-11).

Petitioner stated that he “expressed [his] desire to testify” to counsel, and that he
“made it very clear [he] wanted to testify… throughout the whole process.” (Id. at
11). Petitioner recalled that counsel was “reluctant” and did not want Petitioner to
do so. (Id.). Trial counsel took Petitioner through a “mock cross examination” to
illustrate what might happen if Petitioner took the stand.

(See id. at 12).

By

Petitioner’s own account, the mock cross-examination went poorly. Petitioner was
almost in tears and “emotionally distraught” by the end of it. (Id. at 12-13). Petitioner
recalled that at the end of the mock cross-examination, he did not express the desire
to testify.

(Id.).

In fact, he never brought up the subject again.

(Id. at 13).

Nevertheless, Petitioner testified that he maintained the “attitude” that he wanted

Trial counsel had Petitioner sign a hand-written document, which reflected
that they had reviewed the evidence together; that counsel had explained the plea
offer; that Petitioner was aware that “the government ha[d] sufficient evidence to
satisfy each of the elements of the offense”; and that Petitioner still wished to proceed
to trial. (Civ. Doc. 8-1).
3

10

to testify. (Id.). Petitioner stated that he never addressed counsel about the right to
testify during the trial, but he explained that it was because he “was under the
impression that it was [counsel’s] call” to make. (Id. at 13-14). Petitioner explained
that he did not know that whether to testify was his own decision to make, and that
counsel never advised him that it was ultimately up to him. (Id. at 14-16). Petitioner
insisted that had he known it was his personal decision to make, he would have taken
the stand. (Id. at 14).
On cross-examination, Petitioner testified further about what happened after
the mock cross-examination. He testified as follows:
Q:

Okay. And you said that Mr. Smith – let me make sure I get it
right, that you were – you said that you were in a fragile
emotional state. And – and after that, that’s when you felt like
the decision that you weren’t going to testify was made?

A:

It – that’s when it was understood – or that’s – as far as I’m
concerned – or as far as he was concerned, yes, that’s what – when
he thought that the issue was settled.

Q:

Okay. And so you think that he was impressed maybe in a
negative way by your performance during the mock crossexamination?

A:

Yes.

Q:

And that he, based on his experience as a trial lawyer, didn’t
think it was a good idea for you to testify?

A:

Yes.

Q:

And you agreed or disagreed at that time?

A:

It was never – I never – we never formally discussed it. It was
never an expression, Okay, I understand what you’re saying, I –
I’m not going to testify.

11

It was – we had the discussion, he had the mock crossexamination, and I got, you know, agitated. And it was sort of
like, Okay. Well, you see, look at you there. That’s – I mean, not
– not physically said, but, I mean, you know, to – it was – the
motion was – it was understood.
I mean, you know, it wasn’t physically communicated, but, you
know, it was implied that – like you said, I performed negatively,
and that obviously – why would you want to put yourself in this
situation when you can’t even do it here?
Q:

And so you implied to him that you didn’t want to testify –

A:

No.

Q:

– by your conduct? Because you said it was implied. I’m just
trying to understand what you mean.

A:

Well, as far – well, I’m saying that from his perspective, obviously
– it was understood by him that the issue of whether or not I was
going to testify would be something that we don’t need to discuss
any further.
It wasn’t anything that we said, Okay, yes, we’re going to – all
right, Mr. Smith, I agree with you. Or it wasn’t, Mr. Hardy, so do
you understand what I’m saying?
Now, do you still not – what’s your – would you like to testify or
not, having – you know, you see what just happened. Do you still
want to testify? It was – none of that happened. It wasn’t like that.

Q:

A:

So do you, sitting here today, think it was reasonable for him to
assume that based on your performance you didn’t want to
testify?
***
I mean, I don’t think so. No, it’s not really reasonable. …

(Civ. Doc. 9 at 29-31). Thus, Petitioner seemed to testify that he knew counsel was
under the impression that he would not, and should not, take the stand, but that
counsel was unreasonable to conclude that Petitioner did not wish to testify.

12

Petitioner did not explain why, if he knew counsel was under the impression that he
was not going to testify, he did not speak up after the mock cross-examination to
correct counsel’s misunderstanding. (See id. at 12-13).
Petitioner also recalled that he said nothing to counsel about wanting to testify
during the trial, even as he heard the Court and the attorneys mention that the
defense would not put on a case, and the Court discussed issuing the jury instruction
applicable in cases where the defendant chooses not to testify. (Id. at 33-35); (accord
Crim. Doc. 89 at 230-31; Crim. Doc. 90 at 15-16, 40-41).
The United States impeached Petitioner’s credibility based on inconsistencies
between Petitioner’s testimony and the allegations in the Motion to Vacate. (Civ.
Doc. 9 at 35-39). 4 The United States pointed out that during the hearing, Petitioner
testified that (1) he told counsel he wanted to testify, (2) he and counsel went through
a mock cross-examination, and (3) after his poor performance, Petitioner never
brought up the issue of testifying again. (Civ. Doc. 9 at 35-36; see also id. at 12-13).
In the Motion to Vacate, however, Petitioner alleged that (1) he told counsel he
wanted to testify, (2) “[c]ounsel told petitioner that if he testified he would be
subjected to cross-examination” (Civ. Doc. 1 at 4), which was a reference to the mock
cross-exam exercise (Civ. Doc. 9 at 36); and (3) “nevertheless, petitioner affirmatively

The United States also highlighted an inconsistency between (1) the transcript
of a post-arrest interview between Petitioner and law enforcement, where he seemed
to admit that he traveled from Georgia to Florida with the intent to have sex with
“Paul” (Government’s Trial Exhibit 13A at 19-20), and (2) Petitioner’s insistence that
he would have testified that he lacked intent to have sex with the minor. (Civ. Doc.
9 at 22-28).
4

13

expressed his strong desire to testify to counsel,” (Civ. Doc. 1 at 4) (emphasis added).
Petitioner acknowledged that the allegation was inconsistent with his testimony
about what happened. (Civ. Doc. 9 at 36-37). Petitioner still maintained that, overall,
he had demanded to testify. (Id. at 37-38).
Next, the Court heard testimony from Petitioner’s trial counsel, A. Russell
Smith. (Id. at 41-65). Counsel testified that he has been practicing law since 1980.
(Id. at 41). Counsel initially spent three years as an assistant public defender before
opening his own practice in 1983. (Id.). Since then, counsel estimates that he has
devoted 60-65% of his practice to criminal defense (id.), and he has participated in
about 50 jury trials (id. at 58). Counsel has been a member of the Court’s CJA panel
for 32 years, and he served as president of the Florida Association of Criminal
Defense Lawyers for the 2006-07 year. (Id. at 42).
Counsel recalled the Court appointing him to represent Petitioner. Counsel
testified that, while he and Petitioner were not “close,” they communicated freely and
there was no animosity or “difficulty to speak of between” them. (Id. at 43-44).
Indeed, Petitioner often sent letters to counsel, titled “investigative reports,” where
Petitioner would discuss trial strategy.

(Id. at 44-45).

Counsel did not recall

Petitioner ever demanding to testify, either in those letters or otherwise. (Id. at 4546, 55). Counsel did recall discussing the strategic implications of whether to have
Petitioner take the stand:
Q:

Did [Petitioner] ever suggest that he wanted to testify?

A:

I don’t know if he was the first to suggest it or if I was, but early
in the case we essentially decided that he wanted to go to trial.
14

And then the question became, Do you testify or not? And so over
the course of several meetings, we would discuss benefits and
liabilities of testifying at trial.
There were risks involved with his testimony. I was not – I didn’t
believe he would be able to – I didn’t think he would come across
as sympathetic to the jury. I didn’t think he would be able to – he
had a certain amount of – I wouldn’t say temper, but he felt a
certain amount of animus towards the officers who had arrested
him and the way he had been arrested. He felt that he had been
entrapped.
And I felt that that would come across as angry and unrepentant
to a jury. I wasn’t comfortable with that. But, essentially, the
deciding factor was – during a series of meetings, we went over
what his testimony would be and compared it to the elements of
the offense.
And in every case his testimony would result, at least through
cross-examination, of him admitting each and every element of
the offense.
(Id. at 46). Counsel continued:
Q:

Okay. All right. … let me ask you this. Did you ever engage in
any type of mock cross-examination with [Petitioner], where you
sort of played the prosecutor, and sort of rapid-fire questioned
him to see how he would do under that type of stress?

A:

I did not conduct a mock cross-examination, but what we did do
is conduct an exercise, essentially, where we discussed a
particular element.
And I would say, What would your testimony be about this? Well,
if you’re going to testify about – this way about that at this time,
how are we going to explain this –

Q:

Okay.

A:

– or, What are we going to do about the fact you said something
different to the police? Or – it was in the nature of that type of
give-and-take, rather than a mock cross-examination.

(Id. at 47-48).
15

The United States referred to Government’s Exhibit 1 (Civ. Doc. 8-2), a
handwritten document that contained counsel’s assessment as to whether Petitioner
had a defense for each element of the offense. The direct examination continued as
follows:
Q:

And you gave me that before the hearing. And can you explain
briefly to the court what that is? …

A:

I understand. The – our discussions about his testimony were
could – would it benefit him or would it – would it not benefit him?
Would it be to his detriment?
And so over the course of several meetings, we fleshed that out.
This was an exercise we did at – when we made the final decision
that he would not testify.
And what we did is listed all of the elements of the offense with
which he was charged, discussed each element. And when we got
to the point where he would concede that he – that the
government had the evidence to prove it and he could not rebut
that evidence in his direct testimony, I would write “no defense.”
And that’s – we went through each individual element. And that
was what the top two-thirds of that paper were.

Q:

And – and is it your testimony here today that when you wrote
“no defense” that you both agreed upon that, or was that your
conclusion?
In other words, was there unanimity between the two of you on
each of those findings? Or was it your ultimate legal opinion?

A:

It was unanimity in our decision. There – he asked me for
guidance and my opinion, which I freely gave him. It was a giveand-take. I didn’t push him into anything. There were specific
areas about which he was concerned about testifying.
Part of our discussion was the fact that there were possibilities
that those areas that he did not want to discuss would come up in
cross-examination. So it wasn’t as if he had to be convinced not to

16

testify. He was vacillating about whether or not it was in his best
interest.
So this was essentially part of an ongoing analysis of whether it
was in his best interest or not. And we reached the conclusion
together that he really couldn’t take the stand.
(Id. at 48-50).
Counsel went on to testify that he informed Petitioner that he had the right to
testify:
Q:

Okay. Did he – did he – did you explain to him or notify him or
tell him that it was his right to testify?

A:

Absolutely.

Q:

Okay.

A:

I tell all of my clients the same thing. I say, You have the right
not to testify or you have the right to tell the truth. You don’t
have the right to lie. So our two options are “don’t testify” or “tell
the truth.” That’s how I initially present it to every one of my
clients.

Q:

And that’s the way you’ve been doing it for the last – a long time,
30-plus years?

A:

Well, probably not initially, but it’s what I’ve developed as a way
to make it absolutely clear that we don’t play around with the
truth.

Q:

Right. I understand.
Okay. And did he ever indicate to you any uncertainty on – about
whether he understood his right to testify?

A:

I’m sure at points during our various discussions he was unsure
about whether he wanted to testify or not. But by the point at
which we wrote this up [Government’s Exhibit 1], at the point at
which we went to trial, he was committed to the idea he did not
want to take the stand.

17

Q:

Okay. And that’s good testimony you just gave, but my question
– it didn’t quite answer my question.
…
My question was: Was there ever any concern that you had that
he didn’t understand his right to testify?

A:

Oh, I’m sorry. No. He always understood that he had a right to
testify.

(Id. at 50-51).
Counsel recalled that, during the course of the trial, Petitioner did not ask to
take the stand. (Id. at 53). During a brief conference while the Court and the parties
were discussing jury instructions (see Crim. Doc. 90 at 25), counsel momentarily
“stopped and confirmed” that Petitioner did not want to testify. (Civ. Doc. 9 at 5354). Counsel also searched his file for an outline of a direct examination for Petitioner,
which he could not find. (See id. at 54-56). Based on his normal practices, the absence
of such an outline indicated to counsel that he and Petitioner had settled well before
trial that Petitioner would not testify. (Id. at 56; see also id. at 63-64).
Counsel denied that he tried to prevent Petitioner from exercising his right to
testify:
Q:

Did you ever tell the defendant that he could not testify at trial?

A:

Absolutely not.

Q:

Did you ever ask – tell him that you would not allow him to testify
at trial?

A:

Absolutely not.

Q:

Did you ever say or do anything that was designed to force him
not to testify at trial?
18

A:

Absolutely not.

Q:

Did you ever take any actions to usurp or to override his right to
testify or not to testify at trial?

A:

Frankly, I wouldn’t know how you would do that. I mean, if your
client wants to testify, I think about the worst thing you can do
during a trial is try and prevent it.
If a client is determined to testify, your duty as his lawyer, first
of all, is to advise him of the pitfalls of it, but if he insists, to put
him up there and take him through it, consistent with the Code
of Professional Responsibility and the evidence, and let him
testify.
I can’t think of a worse situation to have in front of a jury than to
be urging your client to, Be quiet, leave me alone, don’t ask again,
that kind of thing. It wouldn’t go well.

Q:

And your testimony is – it appears to be that that didn’t happen
in this case?

A:

That did not happen.

(Id. at 54-55).
On cross-examination, counsel confirmed that it was his custom to advise
clients that they had the right to testify (id. at 59), and furthermore, that it is their
decision alone to make:
Q:

Okay. In Mr. Hardy’s situation, do you recall specifically saying
to Mr. Hardy that the decision to testify is yours and yours alone?

A:

I don’t recall a specific statement like that to Mr. Hardy, but that
is a statement I make to all of my clients. So I would expect that
I did.

Q:

And do you recall whether you said to Mr. Hardy, That means,
Mr. Hardy, that if I tell you that I don’t think it’s a good idea that
you testify, but you say that you want to, you win, you get to
testify? Do you think you had that kind of –

19

A:

I’m sure we had – I don’t know that I would have used those
words, but I’m sure we had that type of conversation.

(Id. at 59).
Regarding counsel’s testimony that he and Petitioner decided in advance that
Petitioner would not testify, counsel acknowledged that there are occasions where
that decision might need to change mid-trial. (Id. at 58). Counsel testified, however,
that that decision did not change during the course of Petitioner’s trial, as Petitioner
never requested to testify. (Id. at 60-61).
Based on the evidence adduced at the hearing, the Court finds that trial
counsel was the more credible witness. After carefully observing his demeanor on the
stand and examining the content of his testimony, he impressed the Court as a
witness who was telling the truth. His recollection of events made sense, and overall,
his testimony was internally consistent.

Moreover, counsel lacks a substantial

interest in the outcome of these proceedings, so he has little motive to be untruthful.
By contrast, Petitioner did not impress the Court as a witness who was telling
the truth. For instance, Petitioner’s testimony at the hearing was inconsistent with
the allegations in his own Motion to Vacate. (See id. at 35-39). Petitioner alleged in
his sworn § 2255 motion that he “affirmatively expressed his strong desire to testify”
even after counsel advised him about cross-examination. (Civ. Doc. 1 at 4). At the
hearing, however, Petitioner testified that after counsel ran him through the “mock
cross-examination,” he never again asked about testifying. (Civ. Doc. 9 at 12-13, 35).
When confronted with the inconsistency, Petitioner acknowledged that the Motion to
Vacate was inaccurately worded. (Id. at 36-39). Moreover, despite initially insisting
20

at the hearing that he “made it very clear [he] wanted to testify … throughout the
whole process” (id. at 11), Petitioner admitted that he never asked again about
testifying after the mock cross-examination (id. at 12-13). Thus, Petitioner’s
testimony is not internally consistent.
Additionally, Petitioner’s recollection of events does not make sense.
Petitioner testified that after he performed poorly on the mock cross-examination, it
was “understood” or “implied” that he would not testify. (Id. at 29-30). At the same
time, Petitioner insists that he still wanted to testify, yet he said nothing further
about it. (Id. at 12-14). If Petitioner still wished to testify, and he knew counsel was
under the impression that he did not want to do so, it makes little sense for Petitioner
to have said nothing to correct counsel’s alleged misunderstanding. Thus, Petitioner’s
actions and testimony are not consistent with a defendant who wished to testify.
Having determined that counsel was the more credible witness, the Court finds
that, based on counsel’s testimony, counsel did not perform deficiently. Counsel’s
duties regarding a defendant’s right to testify are to “advise the defendant (1) of his
right to testify or not testify; (2) of the strategic implications of each choice; and (3)
that it is ultimately for the defendant himself to decide whether to testify.” McGriff,
338 F.3d at 1237 (citing Teague, 953 F.2d at 1533). Counsel fulfilled each of those
duties. Counsel (1) advised Petitioner of the right to testify or not (Civ. Doc. 9 at 50,
59); (2) advised Petitioner, through a series of meetings, of the strategic implications
of each choice (id. at 45-50); and (3) advised Petitioner that it was ultimately for
Petitioner himself to decide whether or not to testify (id. at 59). Although counsel did

21

not recall specifically advising Petitioner that whether to testify was his decision
alone, he did testify that such advice is part of what he tells all of his clients, and he
expects that he had the same discussion with Petitioner. (Id.). As such, the Court
concludes that, more likely than not, counsel adhered to his normal practices in this
case, and he advised Petitioner that whether to testify was Petitioner’s decision alone.
See McGriff, 338 F.3d at 1237-38 (when counsel states it was her “ordinary practice”
to advise clients of the right to testify, the district court does not clearly err in finding
it “more likely than not” that counsel so advised the client); Teague, 953 F.2d at 152728, 1535 (when counsel testified that it was her “normal practice” to discuss the right
to testify and that she “probably” had explained this right to the defendant, the
district court did not err in finding that defendant failed to show ineffectiveness of
counsel); Reynolds v. United States, 233 F. App’x 904, 905 (11th Cir. 2007) (“[T]he
court did not clearly err in finding that his attorney provided credible testimony that
she was an experienced trial attorney whose ‘general practice’ was to appraise
defendants of their right to testify, to advise them whether to testify, and to allow
them to make the ultimate decision.”).
Conversely, counsel gives ineffective assistance with respect to the defendant’s
right to testify where (1) counsel refuses to accept the defendant's decision to testify
and refuses to call him to the stand, or (2) counsel never informs the defendant of
his right to testify, and that the final decision belongs to the defendant alone. Gallego,
174 F.3d at 1197. Counsel credibly testified that Petitioner did not request to testify,
and that he and Petitioner reached a joint decision that Petitioner should not take

22

the stand. (E.g., Civ. Doc. 9 at 48-50, 56-57). Thus, counsel did not refuse a decision
by Petitioner to testify. Moreover, as discussed above, counsel informed Petitioner of
his right to testify, and that the final decision belongs to him alone. (Id. at 49-50, 59).
Accordingly, the Court finds that counsel competently discharged his
responsibility to advise Petitioner about the right to testify and to honor Petitioner’s
final decision.

As such, counsel did not render deficient performance under

Strickland. Because a petitioner is required to prove both deficient performance and
prejudice, the Court need not reach the prejudice prong. See Strickland, 466 U.S. at
697. Relief on Ground One is due to be denied.
B. Ground Two: Whether counsel gave ineffective assistance by
failing to move for a new trial
Petitioner claims that counsel was ineffective for failing to move for a new trial
after it came to light that the United States possessed several letters that Petitioner
wrote while in pretrial detention. (Civ. Doc. 1 at 5). The Court and the attorneys
explored this issue in the criminal case, and the Court determined that counsel had
discharged his duty to investigate the matter before he decided that the letters did
not provide a basis for moving for a new trial.
A few days before sentencing, the United States disclosed that it had come into
possession of five letters that Petitioner had written while he was in pretrial
detention. (See Crim. Doc. 91 at 4). In the letters, Petitioner made statements that
were consistent with his trial theory that he lacked intent to act upon his sexual
fantasies with “Paul.” (See Civ. Doc. 6 at 11-13; Crim. Doc. 70; Crim. Doc. 91 at 3).
Petitioner’s trial counsel moved to continue the sentencing hearing to investigate
23

whether the newly-disclosed letters warranted filing a motion for a new trial,
pursuant to Rule 33(b)(1), Federal Rules of Criminal Procedure, and Brady. (See
Crim. Doc. 70; Crim. Doc. 91 at 2-5). After investigating, counsel concluded that the
letters did not provide grounds to move for a new trial, because (1) the United States
disclosed the letters almost as soon as it came into possession of them, (2) the letters
would not have been admissible at trial anyway unless Petitioner testified, and even
then, the letters would only have been admissible to rebut an allegation that
Petitioner had recently fabricated his testimony, and (3) Petitioner himself was aware
of the letters because he wrote them. (See Crim. Doc. 70 at 2; see also Crim. Doc. 91
at 3-4). Therefore, trial counsel notified the Court that he would not be filing a motion
for a new trial.
After trial counsel and the prosecutor summarized the results of their
investigation, the Court concluded that it was
satisfied that Mr. Smith, as Mr. Hardy’s attorney, has done what he
would be required to do to investigate the circumstances of these latediscovered letters.
And I’m satisfied – if Mr. Smith has found no legal basis to either move
for a new trial or to seek any other relief, I’m satisfied that he’s
discharged his obligations. And I’m further satisfied that there’s no
impediment to moving towards sentencing today.
(Crim. Doc. 91 at 4-5). Petitioner raised no objection at that time to counsel not filing
a motion for a new trial.
The record demonstrates that trial counsel investigated the possibility of
moving for a new trial based on the newly-disclosed letters, but that he had a
reasoned legal basis for not doing so. (See Crim. Doc. 70; Crim. Doc. 91 at 3-4). In
24

order to have established a Brady violation based on the letters, counsel would have
had to show: (1) that the prosecution possessed evidence favorable to the defendant;
(2) that the defendant did not possess the evidence nor could he have obtained it
himself with any reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been disclosed to the defense, a
reasonable probability exists that the outcome of the proceedings would have been
different. United States v. Bailey, 123 F.3d 1381, 1397 (11th Cir. 1997). The fact
that Petitioner himself wrote the letters meant that the defendant possessed the
evidence and he could have obtained it with reasonable diligence. The fact that the
prosecution disclosed the letters to trial counsel almost as soon as it came into
possession of them reflects that the United States did not suppress the evidence.
Finally, trial counsel’s opinion that the “evidentiary value [of the letters] was
significantly attenuated” (Crim. Doc. 91 at 3-4) suggests that there is not a reasonable
probability the letters would have affected the outcome of the proceedings.
Thus, the Court finds that counsel had no basis for filing a motion for a new
trial, and as such, he did not perform deficiently. See Meeks v. Moore, 216 F.3d 951,
968 (11th Cir. 2000) (affirming district court's decision that counsel has no duty to
bring forth non-meritorious motions); Ladd v. Jones, 864 F.2d 108, 110 (11th
Cir.1989) (“[S]ince these claims were meritless, it was clearly not ineffective for
counsel not to pursue them.”). Relief on Ground Two is therefore due to be denied.

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C. Ground Three: Whether counsel gave ineffective assistance by
failing to present mental health evidence, or request a mental
health jury instruction, at the jury trial
Finally, Petitioner contends that counsel was ineffective during the jury trial
– not the sentencing hearing – for failing to call two mental health professionals who
counseled him for psychosexual issues, for failing to present evidence of a
psychosexual evaluation, and for failing to request a mental health jury instruction.
(Civ. Doc. 1 at 7). Petitioner alleges that counsel “failed to fully investigate and
present these mental health-related issues to the Court….” (Id. at 18). In the Motion
to Vacate, however, Petitioner alleges that after he underwent a psychosexual
evaluation, “counsel expressed to petitioner that counsel was of the opinion that the
findings of the evaluation did not produce any helpful evidence.” (Id. at 7). Despite
counsel’s opinion, Petitioner states that he wanted “the mental health-related
evidence [to] be presented to the jury for their consideration and determination.”
(Id.).
This ground does not merit relief. “Which witnesses, if any, to call, and when
to call them, is the epitome of a strategic decision, and it is one that we will seldom,
if ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (citing
Solomon v. Kemp, 735 F.2d 395, 404 (11th Cir. 1984)). Contrary to Petitioner’s
allegation that counsel failed to investigate, Petitioner’s statement that counsel
opined that the psychosexual evaluation did not provide any helpful evidence reflects
that counsel considered the mental health evaluation, and made a strategic decision
not to present it. (See Civ. Doc. 1 at 7). Because “[c]ounsel will not be deemed
unconstitutionally deficient because of tactical decisions,” Michael v. Crosby, 430
26

F.3d 1310, 1320 (11th Cir. 2005) (quoting McNeal v. Wainwright, 722 F.2d 674, 676
(11th Cir. 1984)), the Court will not find that counsel was deficient for strategically
choosing not to present evidence or testimony regarding Petitioner’s psychosexual
treatment and evaluation.
Additionally, Petitioner has failed to adequately allege prejudice. Petitioner
fails to explain what the testimony or evidence concerning his psychosexual therapy
and treatment would have revealed, for what purpose he would have used such
mental health evidence, or why such evidence would have altered the jury’s guilty
verdict. Petitioner also fails to explain what kind of mental health jury instruction
counsel should have pursued, or why there is a reasonable probability that such an
instruction would have caused the jury to find him not guilty. (See Civ. Doc. 1 at 7,
17-18).
A petitioner is not entitled to an evidentiary hearing, much less habeas relief,
when his claims are merely conclusory allegations unsupported by specifics, or if the
allegations fail to state a claim for relief. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th
Cir. 1991) (citations omitted). Because Petitioner fails to describe what mental health
evidence or mental health jury instruction counsel should have pursued, and why it
would have been relevant to the determination of his guilt, Petitioner has failed to
plead anything suggesting that he suffered prejudice. Petitioner is therefore not
entitled to relief on Ground Three.
Accordingly, it is hereby
ORDERED:

27

1. Petitioner Brandon Hardy’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Civ. Doc. 1) is
DENIED.
2. The Clerk shall enter judgment in favor of the United States and against
Brandon Hardy, 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 no 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

28

in forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 12th day of April, 2017.

lc 19
Copies:
Counsel of record
Petitioner Brandon Hardy

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