Muller v. United States of America

Filing 16

ORDER denying 3 Muller's Motion to Vacate, Set Aside, or Correct Sentence (2255). Directions to Clerk.. Signed by Judge Marcia Morales Howard on 3/6/2025. (BAJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TRUMAINE MULLER,
Petitioner,
v.
UNITED STATES OF AMERICA,

Case No.: 3:21-cv-1138-MMH-PDB
3:18-cr-85-MMH-PDB

Respondent.

ORDER
Petitioner Trumaine Muller, through counsel, moves to vacate his
convictions and sentences under 28 U.S.C. § 2255 (Civ. Doc. 3; Amended
Motion). 1 Muller raises four grounds of ineffective assistance of trial counsel
and one claim of cumulative error. The government responded in opposition
(Civ. Doc. 4; Response), and Muller has replied (Civ. Doc. 11; Reply). Upon the
Court’s Order (Civ. Doc. 14; Order), the government supplemented the record
(Civ. Doc. 15; Notice). Thus, the case is ripe for a decision.

1 “Civ. Doc #” refers to docket entries in the § 2255 case, No. 3:21-cv-1138-

MMH-PDB. “Crim. Doc. #” refers to docket entries in the criminal case, No. 3:18-cr85-MMH-PDB. For all pleadings and documents filed in each case, the Court cites to
the document and page numbers as assigned by the Court’s Electronic Case Filing
System.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section
2255 Proceedings 2, the Court has considered the need for an evidentiary
hearing and determines that a hearing is unnecessary to resolve the Amended
Motion. No evidentiary hearing is required because Muller’s allegations are
affirmatively contradicted by the record or, even if the facts he alleges are true,
he still would not be entitled to relief. Rosin v. United States, 786 F.3d 873,
877 (11th Cir. 2015); see also Patel v. United States, 252 F. App’x 970, 975
(11th Cir. 2007). 3
I.

Background
On September 13, 2018, a federal grand jury returned a four-count

Superseding Indictment (Crim. Doc. 26) against Muller. The grand jury
charged Muller with (1) distribution of a controlled substance resulting in
death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (2) distribution of a
controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (3)
possession of a controlled substance with intent to distribute, in violation of 21

2 Rule 8(a) of the Rules Governing Section 2255 Proceedings expressly requires

the Court to review the record, including any transcripts and submitted materials, to
determine whether an evidentiary hearing is warranted before resolving a § 2255
motion.
3 The Court does not rely on unpublished opinions as binding precedent, but
they may be cited in this Order when the Court finds them persuasive on a particular
point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see
generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
2

U.S.C. § 841(a)(1) and (b)(1)(C); and (4) the unlawful transport of firearms in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Id. at 1–3. On the same day,
the government presented a plea offer to Muller through counsel, Jeremy
Lasnetski (Civ. Doc. 15-1; Plea Offer). Under the proposed agreement, Muller
would plead guilty to Count One, and in exchange, the government would
dismiss the remaining three counts and recommend to the Court that Muller
receive a two-to-three level downward adjustment under the sentencing
guidelines. Plea Offer at 2–27. Muller rejected the plea offer. See Civ. Doc. 41. Muller pleaded not guilty and proceeded to trial represented by Lasnetski.
The Eleventh Circuit Court of Appeals summarized the facts presented
at trial as follows:
On November 9, 2016, Tyler Hamilton and his girlfriend, Ariell
Brundige, went to work at a Cracker Barrel restaurant. After their
shift ended, they were picked up by Chris Williams, a friend of
Hamilton’s. They wanted to purchase heroin, 4 but they were not
able to find any heroin available from their regular dealers.
Eventually, at around 10:18 PM, Williams reached out to
Trumaine “Lucky” M[u]ller and asked him for two “points” of
heroin.
Williams drove to meet Muller at the Cedar Bend apartment
complex, where Muller lived. Muller sold Williams two packets of
drugs, which were wrapped in aluminum foil, for $40. At the time
of the transaction, Williams and Hamilton observed a yellow Ford

4 We note this was the third time in two days that Hamilton had purchased

heroin. The first previous occasion occurred on the night of November 8, when he
bought heroin from a dealer named Ross, and the second on the morning of November
9, when he purchased from another dealer named “Chop.” Hamilton testified that he
immediately used the heroin purchased from both Ross and Chop.
3

Mustang in the parking lot, a car that Williams had previously
seen Muller drive.
From there, the group went to Hamilton’s house so he could get
some personal belongings, because he was planning on spending
the night with Williams. Brundige and Williams waited in the car
while Hamilton went inside his house—and while inside, he
injected himself with half of the drugs that he had purchased from
Muller. He suffered a seizure and paramedics were called to the
house. Williams and Brundige then went to Williams’s house,
where Williams divided up the remaining drugs purchased from
Muller. He put most of the remainder into a bottle cap, and gave
Brundige what was left. Williams then injected his share of the
drugs and passed out.
At least several hours later, Hamilton—who had since recovered—
called Williams and asked him to pick him up. Williams did so,
leaving Brundige at his house watching television. When they
returned to the house, Brundige was outside, lying over a bin. They
brought her inside and put her on the couch, where she fell asleep.
At about 1:30 AM, Hamilton started looking up information on
drug overdoses, out of concern that he or Brundige would suffer an
overdose.
Several hours later, Brundige started throwing up, and Hamilton
did not think that she was breathing. He was not able to find a
pulse and called 911. At the direction of the operator, he performed
CPR.
When
the
paramedics
arrived,
they
gave
Brundige Narcan and epinephrine, but she did not recover and
was pronounced dead shortly thereafter.
Michael Calhoun, a detective with the Clay County, Florida,
Sheriff's Office, arrived at Williams’s house several hours later.
Though both Williams and Hamilton denied that Brundige’s death
was linked to drug use, Williams admitted that he had purchased
drugs in aluminum foil packets from Muller, who was driving a
yellow Mustang, the previous night. He told Calhoun that he had
shared one of the packets with Brundige. When Calhoun returned
to the house later that day, Hamilton also admitted the drug
transaction, giving details similar to Williams’. From there,
Calhoun traveled to the Cedar Bend apartment complex. While he
4

was on his way, he passed a yellow Mustang, with a man matching
Muller’s description sitting in the passenger seat of the car.
Calhoun began following the car and observed a drug transaction
take place. After the sale, Calhoun effected a traffic stop and
searched the car, finding aluminum foil, a purse containing nearly
$2,000 in cash, and a cell phone.
When Brundige’s autopsy revealed that she had died of a fentanyl
overdose, the police conducted a controlled purchase from Muller
to see if he was selling fentanyl. Debra Christopher, one of Muller’s
customers who had since become a confidential informant,
purchased what were, at least ostensibly, heroin and crack cocaine
from Muller. The drugs were delivered to her in aluminum foil
packets, and one of the packets contained a mixture of heroin and
furanylfentanyl. A month later, the police arrested Muller and
searched his apartment, finding crack cocaine, a mixture of cocaine
and furanylfentanyl, a significant amount of cash, a firearm, and
other drug paraphernalia. Muller was subsequently indicted on
four counts, two of which he contested: distributing a controlled
substance resulting in death, in violation of 21 U.S.C. § 841 (Count
1), and being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g) and 924 (Count 4).
United States v. Muller, 819 F. App’x 701, 704–05 (11th Cir. 2020) (footnote in
original but renumbered).
After the completion of the presentation of the evidence at trial, as to
Count One of the Superseding Indictment, the Court instructed the jury:
[Muller] can be guilty of the crime charged in Count
One only if all the following facts are proved beyond a
reasonable doubt:
(1) [Muller] distributed a mixture and substance
containing a detectable amount of fentanyl; and
(2) [Muller] did so knowingly and intentionally.
…
5

If you determine that [Muller] distributed the
controlled substance as charged in Count One, you
must also determine whether [Brundige’s] death
resulted from the use of the controlled substance
distributed by [Muller]. To establish that [Brundige’s]
death resulted from the use of the mixture and
substance containing a detectable amount of fentanyl
distributed by [Muller], the Government must prove
that [Brundige’s] use of the fentanyl distributed by
[Muller] was the “but for” cause of her death.
“But for” causation is proven when you find beyond a
reasonable doubt that had [Brundige] not taken the
fentanyl distributed by [Muller], then [Brundige]
would not have died.
Crim. Doc. 81 at 12–13. Muller did not object to the instruction. Crim. Doc. 90
at 150.
The jury found Muller guilty on all Counts (Crim. Doc. 82; Verdict).
Muller appeared for sentencing on May 6, 2019 (Crim. Doc. 107; Sentencing),
at which time the Court sentenced Muller to imprisonment for life on Count
One, 360 months as to Counts Two and Three, and 120 months as to Count
Four, all to run concurrently, followed by concurrent terms of supervised
release of six years on Counts One through Three and four years on Count Four
(Crim. Doc. 98; Judgment).
Muller appealed to the Eleventh Circuit, raising the following
arguments:
(1) the district court abused its discretion by allowing evidence of
an uncharged drug transaction without prior notice from the
government, in violation of Federal Rule of Evidence 404(b); (2) the
6

court abused its discretion by allowing the government to
introduce “historical cell site mapping” to collaborate the
testimony of the government’s key witnesses; (3) the government’s
arguments during rebuttal improperly shifted the burden of proof
and deprived him of a fair trial; (4) his conviction or sentence for
Count One should be set aside, under plain error review, because
evidence established that an intervening act occurred that
absolved him of criminal responsibility for the victim’s death; and
(5) the court plainly erred by not instructing the jury that his acts
were the proximate cause of the victim’s death and that his drug
offenses had to be committed willfully.
Muller, 819 F. App’x at 704. The court of appeals rejected these arguments,
affirming Muller’s convictions and sentences. Id. at 713. Muller then petitioned
the United States Supreme Court for a writ of certiorari. The Supreme Court
denied certiorari review on November 9, 2020. Muller v. United States, 141 S.
Ct. 827 (2020); (Crim. Doc. 135). Muller timely filed his original § 2255 motion
on November 9, 2021 (Civ. Doc. 1). The Amended Motion followed only to
include Muller’s signature.
II.

Governing Law
Under Title 28, United States Code, § 2255, a person in federal custody

may move to vacate, set aside, or correct his sentence. Section 2255 permits
collateral relief on four grounds: (1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the court lacked 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). Only jurisdictional claims, constitutional claims,
7

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); Spencer v. United States, 773
F.3d 1132, 1138 (11th Cir. 2014) (en banc) (“[A] district court lacks the
authority to review the alleged error unless the claimed error constitute[s] a
fundamental defect which inherently results in a complete miscarriage of
justice.” (internal quotation marks omitted)). The Supreme Court recognizes
that a petitioner’s claim that he was denied the effective assistance of counsel,
in violation of the Sixth Amendment, is properly brought in a collateral
proceeding under § 2255. Massaro v. United States, 538 U.S. 500, 504 (2003).
To establish ineffective assistance of counsel, a § 2255 petitioner must
demonstrate both: (1) that his counsel’s conduct amounted to constitutionally
deficient performance, and (2) that counsel’s deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Martin v.
United States, 949 F.3d 662, 667 (11th Cir. 2020). In determining whether the
petitioner has satisfied the first requirement, that counsel performed
deficiently, the Court adheres to the standard of reasonably effective
assistance. Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994) (citing
Strickland, 466 U.S. at 688). The petitioner must show, given all the
circumstances, that counsel’s performance fell outside the “wide range of
professionally competent assistance.” Scott v. United States, 890 F.3d 1239,
8

1258 (11th Cir. 2018) (internal quotation marks and citation omitted). In other
words, “[t]he standard for effective assistance of counsel is reasonableness, not
perfection.” Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing
Strickland, 466 U.S. at 687). To satisfy the second requirement, that counsel’s
deficient performance prejudiced the defense, the petitioner must show a
reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. Martin, 949 F.3d at 667 (citing Padilla v. Kentucky,
559 U.S. 356, 366 (2010)). In determining whether a petitioner has met the two
prongs of deficient performance and prejudice, the Court considers the totality
of the evidence. Strickland, 466 U.S. at 695. But 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.
A § 2255 movant “bears the burden to prove the claims in his § 2255
motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also
Beeman v. United States, 871 F.3d 1215, 1221–22 (11th Cir. 2017). Moreover,
a § 2255 movant is not entitled to a hearing, much less relief, “when his claims
are merely conclusory allegations unsupported by specifics or contentions that
in the face of the record are wholly incredible.” Tejada v. Dugger, 941 F.2d
1551, 1559 (11th Cir. 1991) (citation omitted).

9

III.

Discussion

Muller alleges he was denied his right to effective assistance of counsel
at trial. Amended Motion at 5–11. Specifically, he alleges trial counsel was
ineffective because he failed to: (1) properly explain potential sentencing
consequences, which led Muller to reject a favorable plea offer; (2) request a
jury instruction on intervening act or make an argument regarding the
intervening act during his motion for judgment of acquittal; (3) request a jury
instruction that required the prosecution to show willfulness; and (4) object to
the verdict form which only required the jury to find that the victim died “as a
result of the use of fentanyl distributed by defendant,” rather than the
requiring the drugs to be the “but for” cause of the victim’s death. Id. at 5–10.
Additionally, Muller suggests that the cumulative effect of the four grounds he
identifies denied him due process and effective assistance of counsel. Id. at 11.
A. Ground One
Muller first alleges trial counsel was ineffective for failing to “properly
explain the potential sentencing consequences under the federal sentencing
guidelines.” Amended Motion at 5. Specifically, Muller suggests counsel “did
not fully inform him or inform him at all” that the government would likely file
an information to trigger a mandatory life sentence on Count One under 21
U.S.C. § 851 (“851-enhancement”), or that conceding guilt on Counts Two and
Three would “very likely” subject him to a thirty-year sentence on those counts.
10

Muller avers that had he been so advised, he would have accepted a plea offer
from the government in which the government would have recommended a
twenty-year sentence on Count One if he had pled guilty to that count. 5
There is generally no constitutional right to plea bargain. Weatherford
v. Bursey, 429 U.S. 545, 561 (1977). Nevertheless, in the companion decisions
of Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156
(2012), the Supreme Court clarified that the Sixth Amendment right to
effective assistance of counsel extends specifically “to the negotiation and
consideration of plea offers that lapse or are rejected.” In re Perez, 682 F.3d
930, 932 (11th Cir. 2012) (per curiam) (footnote omitted). As such, Strickland’s
two-part inquiry applies to claims that counsel provided ineffective assistance
in the plea process. Osley v. United States, 751 F.3d 1214, 1222 (11th Cir.
2014) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). Notably, failure by
defense counsel “to communicate formal offers from the prosecution to accept
a plea on terms and conditions that may be favorable to the accused”
constitutes deficient performance. Frye, 566 U.S. at 145. To establish
prejudice, a petitioner must show a reasonable probability that but for
counsel’s deficient performance:

5 Contrary to Muller’s assertions, the Plea Offer did not include a promise for

the government to recommend a specific sentence (like twenty years), but rather
agreed to recommend a downward adjustment of his sentencing guidelines. See Plea
Offer.
11

(1) ‘”the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the
plea and the prosecution would not have withdrawn it
in light of the intervening circumstances)”; (2) “the
court would have accepted its terms”; and (3) “the
conviction and sentence, or both, under the offer’s
terms would have been less severe than under the
judgment and sentence that were in fact imposed.”
Osley, 751 F.3d at 1222 (citing Lafler,566 U.S. at 164, and Frye, 566 U.S. at
147).
Here, Muller has failed to show that counsel performed deficiently.
Indeed, Muller’s own allegations of deficiency are highly ambiguous, stating
that counsel “did not fully inform him or inform him at all” about the potential
for the section 851-enhancement and potential sentences for a conviction on
Counts Two and Three. Yet it is apparent from the record that counsel did
inform Muller of the Plea Offer because on September 19, 2018, Muller signed
an “Acknowledgment of Plea Offer” in which he acknowledged he “received the
Plea Agreement sent on September 13, 2018, that [he had] fully discussed it
with [his] attorney, and that [he] reject[ed] it.” Civ. Doc. 4-1. Moreover, any
assertion that Muller was completely unaware of the potential 851enhancement and possible sentences under such an enhancement is refuted by
the record. Muller had an attorney prior to Lasnetski who affirmed in open
court that he had discussed the potential 851-enhancement with Muller. Crim.
Doc. 124 at 7. Additionally, on September 19, 2018, at Muller’s arraignment on
12

the Superseding Indictment, where he was represented by Lasnetski, the
prosecutor specifically discussed the potential sentences without the
enhancement as well as the potential sentences with the enhancement. Crim.
Doc. 125 at 9–12, 13–14. At that time, the prosecutor noted that he had
presented a plea offer to Muller and, if Muller did not accept before the
deadline, Muller would be eligible for the 851 enhanced penalties. Id. at 12–
13. These record conversations refute Muller’s contention that he was unaware
of the potential enhancement and resulting penalties.
Moreover, the Court will not deem counsel’s advice deficient based on an
alleged failure to advise Muller that his concession of guilt as to Counts Two
and Three (a concession not yet made at the time in question) “very likely
would” subject him to a thirty-year term of imprisonment. To do so would be to
find effective assistance only where counsel can accurately predict the Court’s
future actions before trial and a sentencing hearing are held. See Gordon v.
United States, Case No. 3:12-cv-1265-J-34JRK, 2015 WL 413102, *8 (M.D. Fla.
January 30, 2015) (“Defense attorneys have no constitutional duty to forecast

13

their client’s sentence.” (citing Cooks v. United States, 461 F.2d 530, 532 (5th
Cir. 1972))). 6
Even assuming arguendo that counsel was deficient, Muller has failed to
show prejudice. The Court finds no reasonable probability that Muller would
have accepted this plea offer if more fully advised by counsel. As indicated
above, the record establishes Muller not only knew of the potential for the 851enhancement, but also understood the potential sentences with and without
that enhancement. Muller was advised on the record multiple times that
without the enhancement, he faced a minimum mandatory term of twenty
years imprisonment up to life imprisonment as to Count One, a maximum term
of twenty years imprisonment as to Counts Two and Three, and a maximum
term of ten years imprisonment as to Count Four. Crim. Doc. 119 at 7–10;
Crim. Doc. 123 at 6–12; Crim. Doc. 125 at 9–12. Muller confirmed he
understood the potential sentences. Crim. Doc. 119 at 10; Crim. Doc. 123 at 7,
9, 12; Crim. Doc. 125 at 12. Muller was further advised on the record that, with
the 851-enhancement, a conviction for Count One would require a minimum
mandatory term of life imprisonment and convictions on Counts Two and

The Court notes that although decisions of other district courts are not
binding, they too may be cited as persuasive authority. See Stone v. First Union
Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court
would not be bound to follow any other district court’s determination, the decision
would have significant persuasive effects.”).
6

14

Three would carry a maximum term of thirty years imprisonment. Crim. Doc.
125 at 13. Muller advised the Court that he understood the penalties he faced
if the government filed the 851-enhancement. Id. at 13–14. Because the record
establishes Muller was aware of his 851-enhancement eligibility and potential
sentences, the Court cannot find that any further elaboration on the 851enhancement would have caused Muller to accept the government’s offer.
Further, even before the prosecutor made the plea offer, Lasnetski
represented that the case was “trending towards trial.” Crim. Doc. 116 at 2. At
trial, Muller disputed his responsibility and guilt as to Count One. See Crim
Doc. 88 at 6; Crim. Doc. 90 at 156–157, 204, 216, 233; Crim. Doc. 106 at 22–23.
Even after the jury verdict, Muller maintained his innocence to Count One,
insisting he was “not responsible for the death.” Sentencing at 4–5, 7, 30–31.
Muller stated, “I can’t accept that to take a life sentence for something that I
didn’t do.” Id. at 31. These statements are indicative of an unwillingness to
plead guilty to such an offense. See Osley, 751 F.3d at 1224–25 (“While Osley’s
denial of guilt surely is not dispositive on the question of whether he would
have accepted the government’s plea offer, it is nonetheless a relevant
consideration.”). Further, Muller has pointed to no evidence to support the
assertion he desired to accept a plea agreement prior to his conviction and
sentence, and his mere self-serving statement made now does not persuade
this Court. See Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)
15

(“Given appellant’s awareness of the plea offer, his after the fact testimony
concerning his desire to plead, without more, is insufficient to establish that
but for counsel’s alleged advice or inaction, he would have accepted the plea
offer.”). Accordingly, relief on the claim in Ground One is due to be denied.
B. Ground Two
Muller asserts counsel was ineffective for failing to request a jury
instruction on intervening act or argue in his motion for judgment of acquittal
that an intervening act caused the death of the victim. Specifically, Muller
asserts Hamilton’s failure to seek aid for Brundige for hours despite knowing
that the same drugs she ingested had caused him to overdose and need
emergency medical treatment cut off Muller’s criminal liability under 21
U.S.C. §841(b)(1)(C). 7
As an initial matter, the Court notes that Muller raised a similar issue
on direct appeal, and the Eleventh Circuit found it “[could not] conclude that
there is error, much less plain error” in the Court’s failure to sua sponte grant
a motion for judgment of acquittal based on Hamilton’s actions creating an
intervening act to cut off criminal liability. Muller, 819 F. App’x at 711–12.

7 Muller acknowledges that the Eleventh Circuit has not expressly decided

whether an intervening act can cut off criminal liability for the death resulting
enhancement of 21 U.S.C. § 841. Amended Motion at 6.
16

Section 841 provides that if a person distributes a controlled substance
“after a prior conviction for a felony drug offense has become final” and “death
. . . results from the use of such substance,” the person shall be sentenced to
life imprisonment. 21 U.S.C. § 841(b)(1)(C). The Eleventh Circuit has not
decided whether an intervening act can foreclose culpability under § 841. U.S.
v. Rodriguez, 279 F.3d 947, 951 n.5 (11th Cir. 2002). However, even assuming
arguendo that an intervening act could foreclose that application, Muller has
not shown a reasonable probability that such an argument in counsel’s motion
for judgment of acquittal or a request for such a jury instruction would have
been successful and, thus, changed the outcome of the proceeding.
In

Rodriguez,

the

Eleventh

Circuit

generally

explained

the

circumstances in which an intervening act could cut off criminal liability for a
death:
Generally, one may be held criminally liable for a
victim’s death even where medical negligence or
mistreatment also contributed to the victim’s death.
See Carolyn Kelly MacWilliam, Annotation, Homicide:
Liability Where Death Immediately Results From
Treatment or Mistreatment of Injury Inflicted by
Defendant, 50 A.L.R.5th 467 (1997). In order to be
entitled to a defense, there must have been gross
medical negligence and such gross negligence must
have been “the sole cause of the victim’s death.” Id. See
also 40 Am.Jur.2d Homicide § 18 (1999) (“Negligent
treatment or neglect of an injury will not excuse a
wrongdoer unless the treatment or neglect was the
sole cause of death….”); Rose v. State, 591 So.2d 195,
196 (Fla. 4th DCA 1991) (“‘[A] defendant cannot
17

escape the penalties for an act which in point of fact
produces death, which death might possibly have been
averted by some possible mode of treatment. The true
doctrine is that, where the wound is in itself dangerous
to life, mere erroneous treatment of it or of the
wounded man suffering from it will afford the
defendant no protection….’”) (quoting Hallman v.
State, 371 So.2d 482, 285 (Fla.1979)).
Rodriguez, 279 F.3d at 951–52. Muller has pointed to no facts which would
support the conclusion that Hamilton’s negligence was the sole cause of
Brundige’s death. Without such evidence, counsel cannot be deemed ineffective
for failing to make such an argument in his motion for judgment of acquittal.
Moreover, the Court instructed the jury that the government had to prove the
victim’s use of the drugs distributed by Muller was the “but for” cause of her
death, meaning that if Brundige had not taken the fentanyl distributed by
Muller, she would not have died. See Crim. Doc. 81 at 12–13. After being so
instructed, the jury found Muller guilty, inherently finding that Muller’s drugs
were the cause of Brundige’s death. This is true despite trial counsel’s
argument to the jury that Hamilton had caused Brundige’s death. Crim. Doc.
90 at 219. Thus, it cannot be said that the jury would have found Hamilton’s
actions or negligence to be the “sole” cause of Brundige’s death as doing so
would be in contradiction to its verdict. On this record, Muller has failed to
show a reasonable probability the result of the proceeding would have been

18

different had counsel made the intervening act argument or requested the
instruction. Relief on the claim in this Ground is due to be denied.
C. Ground Three
Muller next contends counsel was ineffective for proposing jury
instructions which did not require the government to prove the drugs
distributed by Muller were the proximate cause of Brundige’s death or that
Muller acted willfully. Amended Motion at 8. The United States Supreme
Court has held that the language of § 841 requires that the use of the drug
distributed by the defendant be the “but for” cause of the victim’s death.
Burrage v. United States, 571 U.S. 204, 218–19 (2014). Moreover, the Eleventh
Circuit and numerous other circuit courts have held that § 841 does not require
a showing of proximate cause, foreseeability, or willfulness. United States v.
Webb, 655 F.3d 1238, 1250–55 (11th Cir. 2011) (“[W]e join several of our sister
circuits and hold that § 841(b)(1)(C)’s enhanced penalty requires only proof
that the death resulted from the victim’s use of a controlled substance
dispensed by the defendant.”) (citing decisions from the 1st, 3rd, 4th, 8th and
9th Circuits 8); United States v. Jeffries, 958 F.3d 517, 524 (6th Cir. 2020)
(rejecting application of a proximate cause standard in favor of but for

8 United States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008); United States v.

Houston, 406 F.3d 1121 (9th Cir. 2005); United States v. McIntosh, 236 F.3d 968 (8th
Cir. 2001); United States v. Robinson, 167 F.3d 824 (3d Cir. 1999); United States v.
Patterson, 38 F.3d 139 (4th Cir. 1994).
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causation); United States v. Harden, 893 F.3d 434, 447–49 (7th Cir. 2018)
(finding no proximate cause requirement for § 841(b)(1)(C) and noting “due to
the extremely hazardous nature of drug distribution, a policy of strict liability
when death occurs fits the statutory language and its evident purpose. . . . this
criminal statute treats death as categorically foreseeable, regardless of
whether this particular defendant foresaw or should have foreseen such a
result.”); United States v. Burkholder, 816 F.3d 607, 617 (10th Cir. 2016)
(holding § 841 does not require proof of proximate causation). Counsel cannot
be deemed ineffective for failing to raise a meritless argument. See Freeman
v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be
deficient for failing to raise a meritless claim. . . .”). Thus, Muller is not entitled
to relief on this Ground.
D. Ground Four
Muller also maintains counsel failed to object to the causation language
on the verdict form. Amended Motion at 9. Muller suggests the verdict form
only required the jury find the victim died “as a result of” the drugs Muller
distributed, rather than requiring the drugs be the “but for” cause of
Brundige’s death. Id. This contention is unavailing. Notably, jurors are
presumed to follow a district court’s instructions. U.S. v. Almanzar, 634 F.3d
1214, 1222 (11th Cir. 2011). Here, the Court instructed the jury that it “must
follow the law as [the Court] explains it . . . and must follow all of [the Court’s]
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instructions as a whole.” Crim. Doc. 81 at 2. Consistent with Burrage, the
Court further instructed the jury that to find Muller guilty the drugs
distributed by Muller had to be the “but for” cause of Brundige’s death. Id. at
12–13. Given the Court’s instructions regarding the elements of the offense
and the appropriate burden for causation, there was no need for the verdict
form to reiterate every legal element or burden of proof. United States v.
Brown, 669 F.3d 10, 31 (1st Cir. 2012). As the jurors were properly instructed
on the “but for” causation in the court’s instructions, Muller cannot be said to
have been prejudiced by counsel’s failure to object to the instructive language
on causation not being reiterated on the verdict form. Relief on the claim in
Ground Four is due to be denied.
E. Ground Five
Lastly, Muller contends that the cumulative effect of counsel’s actions
discussed in Grounds One through Four denied him due process and effective
assistance of counsel. The Eleventh Circuit recognizes that the “cumulative
error doctrine provides that an aggregation of non-reversible errors (i.e., plain
errors failing to necessitate reversal and harmless errors) can yield a denial of
a constitutional right to a fair trial, which calls for reversal.” United States v.
Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation omitted), abrogated on
other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006). Of course,
where there is no error or only a single non-prejudicial error, there can be no
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cumulative error. United States v. Allen, 269 F.3d 842, 847 (11th Cir. 2001).
Because Muller has failed to demonstrate any errors, let alone a single nonprejudicial error, he has no claim to relief under the cumulative error
doctrine. United States v. Ochoa, 941 F.3d 1074, 1106 (11th Cir. 2019) (citation
omitted).
IV.

Certificate of Appealability

If Muller seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. This Court should
issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Muller “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)).
Where a district court has rejected a petitioner’s constitutional claims on
the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.

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See Slack, 529 U.S. at 484. However, when the district court has rejected a
claim on procedural grounds, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, this Court will deny a certificate of
appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

Muller’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence (Civ. Doc. 3) is DENIED.
2.

The Clerk is directed to enter judgment in favor of the United

States and against Muller, and close the file.

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3.

If Muller appeals the denial of the motion, the Court denies a

certificate of appealability. Because this Court has determined that a
certificate of appealability is not warranted, the Clerk shall terminate from the
pending motions report any motion to proceed on appeal as a pauper that may
be filed in this case. Such termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida this 6th day of March,
2025.

JaxP-12
Copies:
Trumaine Muller #70521-018
Counsel of record

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