Witchard v. United States of America

Filing 27

ORDER denying 20 Motion for Judgment on the Pleadings; denying 1 Motion to vacate/set aside/correct sentence (2255) and dismissing case with prejudice. The Clerk of the Court shall enter judgment accordingly, close this case, file a copy of this Order in criminal case number 6:14-cr-112-Orl-37GJK, and terminate the motion (Criminal Case, Doc. 151) pending in that case. A Certificate of Appealability is denied in this case. Signed by Judge Roy B. Dalton, Jr. on 7/3/2017. (AJM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSEPH WITCHARD,
Petitioner,
v.

Case No: 6:16-cv-1254-Orl-37GJK
(6:14-cr-112-Orl-37GJK)

UNITED STATES OF AMERICA,
Respondent.

/
ORDER

THIS CAUSE is before the Court on Petitioner Joseph Witchard’s Motion to
Vacate, Set Aside, or Correct Sentence (“Motion to Vacate,” Doc. 1) pursuant to 28 U.S.C.
§ 2255. Respondent filed a Response to the Motion to Vacate (“Response,” Doc. 17) in
compliance with this Court’s instruction. Petitioner filed a Reply to the Response
(“Reply,” Doc. 18).
Petitioner asserts two grounds for relief. For the following reasons, the Motion to
Vacate is denied.
I. PROCEDURAL HISTORY
Petitioner was charged by Indictment with nine counts of mail fraud (Counts One
through Nine) in violation of 18 U.S.C. §§ 1341 and 2, six counts of filing false claims
(Counts Ten through Fifteen) in violation of 18 U.S.C. §§ 287 and 2, six counts of theft of
government property (Counts Sixteen through Twenty One) in violation of 18 U.S.C. §§
641 and 2, and nine counts of aggravated identity theft (Counts Twenty Two through

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Thirty) in violation of 18 U.S.C. §§ 1028(a)(1) and 2. (Criminal Case No. 6:14-cr-112-Orl37GJK, Doc. 1.) 1 A jury found Petitioner guilty of all counts. (Criminal Case, Doc. 96.) The
Court sentenced Petitioner to a total term of 331 months of imprisonment. (Criminal Case,
Doc. 109.) Petitioner appealed, and the Eleventh Circuit Court of Appeals affirmed.
(Criminal Case, Doc. 144.)
II. LEGAL STANDARD
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668
(1984), established a two-part test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective assistance: (1) whether
counsel’s performance was deficient and “fell below an objective standard of
reasonableness”; and (2) whether the deficient performance prejudiced the defense. Id.
at 687-88. A court must adhere to a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Id. at 689-90. “Thus, a court deciding
an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel's conduct.”
Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
A defendant has the right to effective counsel on appeal. Alvord v. Wainwright, 725
F.2d 1282, 1291 (11th Cir. 1984). Strickland applies to claims of ineffective assistance of
appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To determine
whether appellate counsel rendered ineffective assistance, courts must examine the

1

Criminal Case No. 6:14-cr-112-Orl-37GJK will be referred to as “Criminal Case.”

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merits of the argument counsel failed to raise. See Miller v. Dugger, 858 F.2d 1536, 1538
(11th Cir. 1988); Appellate counsel is not ineffective for failing to raise claims “reasonably
considered to be without merit.” Id.
III. ANALYSIS
A.

Ground One

Petitioner contends the Court lacked subject matter jurisdiction because of
prosecutorial misconduct. (Doc. 1 at 4.) In support of this ground, Petitioner argues that
government agents manufactured and falsified the arrest warrant. (Id.) According to
Petitioner, the Court did not issue an arrest warrant on April 30, 2014, but government
agents induced a deputy clerk to date and stamp a fraudulent arrest warrant with that
date. (Doc. 2 at 2.) Finally, Petitioner complains that the fraudulent arrest warrant was
signed by a fictitious person, J. Thigpen, who had no legal authority to sign the warrant.
(Id. at 3.)
This ground is without merit. The Grand Jury returned the Indictment charging
Petitioner on April 30, 2014. (Criminal Case, Doc. 1.). On the same date, an arrest warrant
was issued by the Clerk of Court. (Doc. Nos. 4, 10). J. Thigpen, a deputy clerk, issued and
signed the arrest warrant. (Id.) Rule 9 of the Federal Rules of Criminal Procedure requires
the clerk to sign an arrest warrant for a defendant charged in an indictment. Fed. R. Crim.
P. 9(b). Consequently, the arrest warrant was not fraudulent and was not signed by a
fictitious person or someone not legally authorized to sign it. Petitioner has failed to
demonstrate any prosecutorial misconduct or that this Court lacked jurisdiction.

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Accordingly, ground one is denied. 2
B.

Ground Two

Petitioner asserts appellate counsel rendered ineffective assistance by failing to
argue that the arrest warrant was fraudulent. (Doc. 1 at 5.) Petitioner has not established
either deficient performance or prejudice. As discussed supra, the arrest warrant was not
fraudulent and was issued by an individual legally authorized to do so. Appellate
counsel was not deficient for failing to raise a non-meritorious issue, and a reasonable
probability does not exist that the outcome of the proceeding would have been different
had counsel done so. Accordingly, ground two is denied.
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) is
DENIED, and this case is DISMISSED with prejudice.
2. Petitioner’s Motion for Judgment on the Pleadings (Doc. 20) is DENIED.
2. The Clerk of the Court shall enter judgment accordingly and close this case.
3. The Clerk of the Court is directed to file a copy of this Order in criminal case
number 6:14-cr-112-Orl-37GJK and to terminate the motion (Criminal Case,
Doc. 151) pending in that case.

Petitioner summarily states that government agents gave “tainted” testimony to
the Grand Jury and at trial. (Doc. 1 at 4.) Petitioner does not explain what the “tainted”
testimony was. See also Doc. 2. Petitioner’s summary contention is conclusory and
without merit.
2

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4. This Court should grant an application for 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). Petitioner has failed to make a substantial
showing of the denial of a constitutional right. 3 Accordingly, a Certificate
of Appealability is DENIED in this case.
DONE and ORDERED in Orlando, Florida on July 3rd, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Party

Pursuant to the Rules Governing Section 2255 Proceedings for the United States District
Court, “[t]he district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing Section 2255 Proceedings for the United States
District Courts, Rule 11(a).
3

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