Krocka v. USA

Filing 15

ORDER denying 8 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to close the civil case and enter judgment in favor of the United States. Signed by Judge Susan C Bucklew on 5/7/2015. (ALK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VINCENT JAMES KROCKA,
Petitioner,
Case No: 8:14-cv-01548-T-24-TGW
Cr. No.: 8:06-cr-127-T-24-TGW

v.
UNITED STATES OF AMERICA,

Respondent.
_____________________________
ORDER
This cause comes before the Court on Petitioner Vincent James Krocka’s third amended
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Cv. Dkt. 8). The
Government filed a response in opposition (Cv. Dkt. 12), to which Petitioner filed a reply (Dkt.
13).
I.

BACKGROUND

Petitioner was charged with nineteen counts of mailing threatening and extortionate
communications, in violation of 18 U.S.C. §§ 876(b) and (c), and six counts of witness
tampering, in violation of 18 U.S.C. § 1512(b)(1). Petitioner was convicted by a jury of five
counts of mailing threatening and extortionate communications under 18 U.S.C. § 876(b), five
counts of mailing threatening communications under 18 U.S.C. § 876(c), and six counts of
witness tampering under 18 U.S.C. § 1512(b)(1).
Petitioner was sentenced to 121 months’ imprisonment. The sentence was within the
advisory guideline range of 97-121 months’ imprisonment. Petitioner filed a direct appeal and
the Eleventh Circuit affirmed in part, reversed in part as to two counts of witness tampering, and
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remanded for resentencing. See United States v. Krocka, 376 Fed. App’x 983 (11th Cir. 2010)
(unpublished).
Petitioner was re-sentenced to 121 months’ imprisonment on July 18, 2013. His first motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence was filed on June 26, 2014,
and denied without prejudice. He filed a second motion on July 9, 2014, with the same result.1
Petitioner filed the instant motion on August 18, 2014. This § 2255 motion was timely filed
based on the date of his first-filed motion.
II.

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Petitioner sets forth eight grounds for collateral relief based on alleged violations of his Fifth
Amendment due process rights and his Sixth Amendment right to effective assistance of counsel
and speedy trial. (Cv. Dkt. 8, pg. 6). Petitioner claims his due process rights were violated as a
result of: (1) the admission of evidence of other crimes at trial; (2) the government’s alleged
“outrageous” behavior at trial; (3) the government’s alleged sentencing manipulation; and (4) the
government’s alleged witness tampering. Petitioner claims ineffective assistance of counsel
based on his trial counsel’s failure to move to suppress evidence of Petitioner’s other crimes and
evidence of letters Petitioner wrote while incarcerated. Petitioner also claims his Sixth
Amendment right to a speedy trial was violated. Finally, Petitioner claims that the collective
result of the aforementioned issues violated his Fifth and Sixth Amendment rights. (Cv. Dkt. 8,
at 6; Doc. 14, at 1-18).
Each of Petitioner’s claims is either procedurally barred, procedurally defaulted, or fails to
satisfy the standard for ineffective assistance of counsel. Therefore, Petitioner’s motion is
denied.
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Petitioner filed a memorandum in support of his first motion on June 27, 2014. He filed a memorandum
in support of his second motion on July 11, 2014. He filed an amended memorandum in response to the
government’s response on December 24, 2014.

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A. Procedural Bar
Grounds One and Five are procedurally barred from being considered in a § 2255 motion
because they were raised on direct appeal. “Once a matter has been decided adversely to a
defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.”
United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (citing United States v. Natelli,
553 F.2d 5, 7 (2d Cir. 1977)); See also Rozier v. United States, 701 F.3d 681, 684 (11th Cir.
2012); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). Re-characterizing a
ground for relief will not avoid procedural bar. Nyhuis, 211 F.3d at 1343. Procedural bar can
only be avoided if there is an “intervening change in controlling law.” Ochoa v. United States,
569 Fed. App’x 843, 845 (11th Cir. 2014) (unpublished) cert. denied, 135 S. Ct. 463 (2014)
(citing Rozier, 701 F.3d at 684); see also Davis v. United States, 94 S. Ct. 2298, 2303 (1974).
This exception is inapplicable here.
In Ground One, Petitioner claims that he was prejudiced as a result of the admission of
evidence of other crimes at trial, in violation of his right to due process. (Cv. Dkt. 8, at 6). He
argues that the testimony given by law enforcement alleging that Petitioner held his children
hostage inside his home and fired a weapon was “highly prejudicial and untruthful,” and
prevented a fair trial. (Cv. Dkt. 14, at 2-4). In Ground Five, Petitioner argues that his speedy trial
rights were violated because the case was not dismissed at trial. (Cv. Dkt. 8, at 6; Cv. Dkt. 14, at
11).
Petitioner raised Grounds One and Five in his direct appeal to the Eleventh Circuit (Cv. Dkt.
8, at 5; Cv. Dkt. 12-1, at 4). Therefore, Petitioner’s claims in Grounds One and Five are
precluded by prior resolution in the Eleventh Circuit, and are barred from consideration in this §
2255 motion for collateral relief.

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B. Procedural Default
Grounds Four, Six, Seven, and Eight are barred from consideration in Petitioner’s § 2255
motion because of the procedural default rule. “Under the procedural default rule, a defendant
generally must advance an available challenge to a criminal conviction or sentence on direct
appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn
v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (citing McCoy v. United States, 266 F.3d
1245, 1258 (11th Cir. 2001)); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998));
Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994); Greene v. United States, 880 F.2d
1299, 1305 (11th Cir. 1989).
There are two exceptions to this rule. Lynn, 365 F.3d at 1234. The first exception has a twofold requirement: the Petitioner “must show cause for not raising the claim . . . on direct appeal
and actual prejudice from the alleged error.” Id. (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). To be able to show cause for his failure to raise a claim previously, the Petitioner
must demonstrate that he was unable to do so due to “some objective factor external to the
defense.” Lynn, 365 F.3d at 1235 (citing Smith v. Jones, 256 F.3d 1135, 1145 (11th Cir. 2001));
See also Murray v. Carrier, 477 U.S. 478, 488 (1986); Johnson v. Alabama, 256 F.3d 1156,
1171 (11th Cir. 2001); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992). In order to
demonstrate prejudice, the Petitioner “must show that ‘the errors at trial actually and
substantially disadvantaged his defense so that he was denied fundamental fairness.’” Wright v.
Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (citing McCoy, 953 F.2d at 1261) (quoting Murray,
477 U.S. at 494).

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The second exception is actual innocence, which can be shown through “‘reliable evidence . .
. not presented at trial.’” Lynn, 365 F.3d at 1234-1235; High v. Head, 209 F.3d 1257, 1270 (11th
Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995); Mills v. United States, 36 F.3d
1052, 1055-1056 (11th Cir. 1994); Rozzelle v. Sec’y, Florida Dep’t of Corr., 672 F.3d 1000,
1011 (11th Cir. 2012) (citing Johnson, 256 F.3d at 1171).
In Ground Four, Petitioner argues that he was denied his Fifth Amendment due process
rights as a result of the government’s “outrageous” behavior. (Cv. Dkt. 8, at 6; Cv. Dkt. 14, at 8).
In his summary of the government’s alleged outrageous conduct, Petitioner claims that his
firearms were confiscated illegally by the Hillsborough County Sherriff’s Office, and that the
Hillsborough County Sherriff’s Office “interfered with” letters Petitioner wrote to his wife while
he was incarcerated by allowing them to be mailed, despite an office policy prohibiting
threatening or extortionate letters from being mailed. (Cv. Dkt. 14, at 8-11). He argues that this
was done intentionally so that he would be charged with mailing threatening and extortionate
communications and “deprive[d] of his liberty.” (Cv. Dkt. 14, at 10). However, Petitioner did not
raise this claim previously, and he does not show cause for this failure. (Cv. Dkt. 12-1; Doc. 14,
at 8-11); Lynn, 365 F.3d at 1234-1235. His claims regarding the government’s alleged behavior
do not explain why he was unable to raise this claim at the trial level or on direct appeal. Even if
his allegations regarding the government’s behavior were true, they do not constitute “objective
factor[s] external to the defense” that would have prevented him from raising this claim
previously. Id. at 1235; (Cv. Dkt. 14, at 8-11). Further, Petitioner does not assert that he did not
write and send the letters in question. As such, Petitioner has failed to show actual innocence and
may not avoid the procedural bar to his claims on this basis. Lynn, 365 F.3d at 1234-1235; High,

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209 F.3d at 1270; (Cv. Dkt. 14, at 8-11). Thus, Ground Four is procedurally defaulted and barred
from consideration in this § 2255 motion.
In Ground Six, Petitioner raises the issue of whether the government engaged in sentencing
manipulation, denying him his Fifth Amendment due process rights. (Cv. Dkt. 8, at 6). Petitioner
argues that he is prejudiced because he did not receive a speedy trial, and that the delay provided
the government with the opportunity to improve its case against him. He claims his wife
conspired with the Hillsborough County Sherriff’s Office to indict him. (Cv. Dkt. 14, at 14-17).
Petitioner does not assert that he was unable to raise this issue at trial or on direct appeal, but
rather, he merely argues that the tactics utilized by the government and his wife to obtain his
conviction were “beyond [his] predisposition.”

(Cv. Dkt. 14, at 16). Such statements are

insufficient to demonstrate that he was unable to raise this issue at trial or on direct appeal due to
“some objective factor external to the defense.” Lynn, 365 F.3d at 1235. Therefore, this claim is
also barred from consideration due to procedural default.
In Ground Seven, Petitioner argues his Fifth Amendment due process rights were violated
due to the government’s alleged witness tampering. (Cv. Dkt. 8, at 6; Cv. Dkt. 14, at 17). He
argues that the government coached his wife, who was testifying against him, during a recess at
trial. (Cv. Dkt. 14, at 18). While Petitioner argues that a change in his wife’s demeanor was
evident after a recess at trial and that her change in demeanor was attributable to the
government’s “coaching and correction,” he does not assert any reason why he failed to raise
this issue at the time of trial or on direct appeal. Id. Nor does Petitioner demonstrate that he was
unable to raise the issue of the government’s purported witness tampering for any reason. See
Lynn, 365 F.3d at 1235. As Petitioner has failed to show any circumstances that justify an

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exception to the procedural bar with regard to Ground Seven, this claim is also barred from
consideration in the § 2255 motion due to procedural default.
Ground Eight raises the issue of whether the Petitioner was denied his Fifth and Sixth
Amendment rights due to the collective result of the aforementioned issues. (Cv. Dkt. 8, at 6; Cv.
Dkt. 14, at 1-18). As the Court has found that the issues raised in Grounds One through Seven
were either procedurally barred or procedurally defaulted, this claim is without merit.
On the basis of the foregoing, Grounds Four, Six, Seven, and Eight are barred from
consideration in the § 2255 motion by procedural default. (Cv. Dkt. 8, at 11-12; Cv. Dkt. 12-1, at
4).
C. Ineffective Assistance of Counsel
Grounds Two and Three raise the issue of whether Petitioner was denied his Sixth
Amendment right to effective assistance of counsel. (Cv. Dkt. 8, at 6). In Ground Two, Petitioner
claims that his trial counsel’s failure “to formally object and/or move for suppression of highly
prejudicial evidence” of “other crimes” deprived him of his right to effective assistance of
counsel, and that counsel’s failure to object or move to suppress prejudiced him. (Cv. Dkt. 14, at
6; Cv. Dkt 8, at 6). In Ground Three, Petitioner claims that he was denied his Sixth Amendment
right to effective assistance of counsel and prejudiced due to his trial counsel’s failure to move to
suppress evidence of letters Petitioner wrote while incarcerated.
Two requirements must be satisfied in order for Petitioner to show that he received
ineffective assistance of counsel. Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).
Petitioner must first establish that “counsel’s performance was deficient.” Id. “This requires
showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. Counsel’s performance is considered

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deficient when the attorney’s actions “fell below an objective standard of reasonableness.” Id.
Next, Petitioner must establish that “the deficient performance prejudiced the defense.” Id.
Establishing prejudice “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. To satisfy the second requirement,
Petitioner “must show that there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 2068. “The
burden of persuasion is on a petitioner to prove, by a preponderance of the evidence, that
counsel’s performance was unreasonable.” Chandler v. United States, 218 F.3d 1305, 1313 (11th
Cir. 2000) (en banc). Both requirements must be met. Id. at 2064.
Petitioner’s arguments in Grounds One and Two both fail as to the second prong of the
Strickland test because Petitioner has not asserted any facts showing he was prejudiced by his
counsel’s performance. Petitioner asserts that his trial counsel “alluded to objecting to the
government’s introduction of [] evidence regarding prior ‘bad acts’ evidence against the
Petitioner,” but never formally objected. (Cv. Dkt. 14, at 5). Petitioner argues that his trial
counsel’s failure to formally object “inflamed the passions of the jury and led the jury into
irrelevant matters” and the outcome of the matter would have been different but for trial
counsel’s failure to move to suppress prejudicial testimony. Id. at 6. However, Petitioner does
not assert any facts supporting his conclusory arguments that the outcome of the matter would
have been different had his trial counsel moved to suppress or objected to the other crimes
evidence. Because Petitioner failed to provide any factual basis supporting his claims that he
suffered prejudice as a result of his counsel’s performance, Petitioner has not established with a
reasonable probability that the outcome of the proceedings would have been different if counsel

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had performed differently. See Strickland, 104 S. Ct. at 2068. Therefore, Petitioner is not entitled
to relief on his claims in Grounds One and Two.
a. Request for Evidentiary Hearing
Petitioner requests an evidentiary hearing on the matters presented in his motion.
Petitioner bears the burden of establishing the need for an evidentiary hearing. See Birt v.
Montgomery, 725 F.2d 587, 591 (11th Cir. 1984) (en banc). In deciding whether to grant an
evidentiary hearing, a federal court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to
federal habeas relief. Chavez v. Sec’y Florida Dep’t of Corr., 647 F.3d 1057, 1060 (11th
Cir.2011). If a petitioner does not allege enough specific facts that, if they were true, would
warrant relief, the petitioner is not entitled to an evidentiary hearing.” Id.
As discussed above, the allegations in Petitioner’s § 2255 motion are without merit.
Petitioner’s allegations do not entitle him to relief as his claims are procedurally barred or
procedurally defaulted. Accordingly, he is not entitled to an evidentiary hearing. See Aron v.
United States, 291 F.3d 708, 714–15 (11th Cir.2002) (indicating that 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 the facts that he alleges are
true, he still would not be entitled to any relief). Petitioner’s request for an evidentiary hearing
must, therefore, be denied.

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b. Application for Certificate of Appealability
Finally, the Court must consider whether Petitioner has raised any issues that entitle him to
appeal. A prisoner seeking to vacate his sentence has no absolute entitlement to appeal a district
court’s denial of his § 2255 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, a 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, 124 S. Ct. 2562, 159 L.Ed.2d 384 (2004) (quoting Slack v. McDaniel 529 U.S. 473,
484, 120 S. Ct. 1595, 146 L.Ed.2d 542 (2000)), or that “the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123
S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103
S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Petitioner has not made the requisite showing in these
circumstances. Therefore, Petitioner is not entitled to a COA.
III.

CONCLUSION

Accordingly, Petitioner’s Motion under 28 U.S.C. § 2255 is DENIED. The Clerk is directed
to close the civil case and enter judgment in favor of the United States.
DONE AND ORDERED at Tampa, Florida, this 7th day of May, 2015.

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Copies To: Counsel of Record and Parties

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