Vernon v. United States of America

Filing 15

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255).The Clerk is directed to terminate any pending motions as moot and close this file. The Clerk is further directed to terminate from pending status the motion to vacate found at Doc. 134 in the underlying criminal case, case number 8:13-cr-115-T-30MAP. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 11/18/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLIE VERNON, JR.,
Plaintiff,
v.

Case No: 8:16-cv-756-T-30MAP
Crim. case No: 8:13-cr-115-T-30MAP

UNITED STATES OF AMERICA,
Defendant.

ORDER
THIS CAUSE comes before the Court on Petitioner Charlie Vernon Jr.'s Motion to
Vacate, Set Aside, or Correct Sentence (CV Doc. 1), Respondent's response in opposition
(CV Doc. 6) and Petitioner's reply (CV Doc. 14). Having reviewed these filings, the
transcripts of the trial and sentencing proceedings (CR Docs. 118, 120–124), the record,
and the relevant law, the Court concludes Petitioner’s motion should be denied.
BACKGROUND
In January 2013, the Tampa Police Department (“TPD”) received an anonymous tip
that drugs were being trafficked at a residence that turned out to be Petitioner’s mother’s
house. TPD set up surveillance and observed heavy pedestrian traffic at the residence. TPD
then twice collected the trash outside the residence and found marijuana residue, cocaine
residue, marijuana stems and blunts, and other items. TPD also found mail and food
containers belonging to Petitioner during the trash pull.

Based on the anonymous tip and their observations, TPD obtained a search warrant.
During execution of the warrant, TPD found Petitioner with roughly $2,000 on him near
cocaine and a digital scale. After receiving Miranda warnings, TPD Officer Daniel
Klotzbach claims Petitioner confessed to selling drugs and having four firearms. Petitioner
admitted to having drugs for personal use and for a friend, but denied that he was aware of
the guns.
In February 2013, Petitioner was indicted for possession of 28 grams or more of
crack cocaine with intent to distribute (count I), possessing a firearm in furtherance of a
drug trafficking crime (count II), and possession of a firearm by a felon (count III). Mr.
Stephen Baer was then appointed as Petitioner’s counsel. Mr. Baer moved to suppress the
fruits of TPD’s search and his confession based on a lack of probable cause. The trial court
ruled the search warrant was supported by probable cause or, alternatively, that the good
faith exception to the warrant requirement was satisfied.
Following the denial of Petitioner’s motion to suppress, Mr. Mark Ciaravella
appeared as Petitioner’s new counsel. Mr. Ciaravella provided an affidavit stating
Petitioner was unhappy with Mr. Baer because Mr. Baer was unable to get the evidence or
Petitioner’s confession suppressed, and because Mr. Baer was not able to obtain
Petitioner’s pretrial release. Petitioner continued to be unhappy that the Court did not
suppress the evidence, despite Mr. Ciaravella’s unequivocal explanation that the Court’s
ruling would not be overturned.

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The case proceeded to a jury trial in October 2013. At trial, Petitioner argued he did
not live at the residence and did not own the guns found by TPD. Petitioner took the stand
and testified at trial about where he lived, the drugs, and the guns.
During jury deliberations, the jury informed the trial court that it reached a
unanimous decision on two counts, but was having difficulty reaching a unanimous
decision on the other count. After discussion with both counsel, the trial court gave the
following modified Allen instruction to the jury:
With regard, ladies and gentlemen, to your notice that you are
unanimous on two counts and are having difficulty reaching a unanimous
decision on one of the counts, I'm going to ask you to continue with your
deliberations in an effort to agree upon a verdict so we can completely
dispose of the case.
This is an important case, needless to say. The trial has been expensive
in time, the effort, money, and emotional strain on both the defense and the
prosecution. If you fail to agree on a verdict with regard to that third count,
the case will be left open and may have to be tried again. Obviously another
trial would only increase the cost to both sides, and there's no reason to
believe that the case can be tried again by either side any better or more
exhaustively than it has before you. Any future jury would have to be selected
in the same manner and from the same source as you were chosen. There's
no reason to believe that the case could be submitted to 12 people more -more impartial or more conscientious than you are.
So, if a substantial majority of you are in favor of a conviction, those
of you who disagree should reconsider whether your doubt is a reasonable
one, since it appears to make no effective impression on the minds of the
others.
And if a majority or even the smaller number of you are in favor of an
acquittal, the rest of you should ask yourselves again, and very thoughtfully,
whether you should accept the weight and sufficiency of evidence that fails
to convince your fellow jurors beyond a reasonable doubt.
So, remember at all times, no juror is expected to give up an honest
belief about the weight and the effect of the evidence; but after considering
the evidence in the case, you must agree upon a verdict, if you can.

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If the evidence fails to establish guilt beyond a reasonable doubt, the
defendant must have a unanimous verdict of not guilty.
You should not be hurried in your deliberations and should take as
much time as you feel necessary; but with regard to the question of time, we
will not be permitted to go beyond 5:00 this evening; and if we do not reach
a verdict by 5:00 this evening -- a unanimous verdict by 5:00 this evening,
we will be obliged to continue the matter until Tuesday or Wednesday of
next week.
If you are unable to reach a verdict with regard to one of the counts,
you may complete the verdict form with regard to the counts that you are
able to arrive at a unanimous agreement on and indicate with regard to the
count that you are not -- that you are not able to arrive at a unanimous
agreement and notify Mr. Bohlig to bring in the verdict forms that you have
completed.
(CR Doc. 123, pp. 81–83). Following the instruction, Mr. Ciaravella confirmed that the
Court read the modified Allen charge, which the Court confirmed. Counsel were then asked
if there was any additional information they wanted the Court to provide to the jury. Mr.
Ciaravella did not ask for any additional information to be provided to the jury and did not
object to the modified Allen charge.
Approximately twenty minutes later, the jury informed the Court that it reached a
unanimous decision on all three counts. The jury convicted Petitioner of counts I and III,
and acquitted Petitioner of the Count II charge of possessing a firearm in furtherance of a
drug trafficking crime.
Petitioner was sentenced on January 6, 2014. During the proceeding, the sentencing
court asked Petitioner if he had the opportunity to read and discuss the presentencing
investigation report (“PSR”) with his counsel, to which Petitioner responded that he had
not. Mr. Ciaravella explained that he met with Petitioner to go through the PSR, but

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Petitioner left the visitation room. The sentencing court afforded Petitioner an opportunity
to review the PSR with his counsel. After a recess, Petitioner confirmed that the facts in
the PSR were accurate. (CR Doc. 124, 6:17–19). Later during the sentencing hearing, Mr.
Ciaravella admitted that Petitioner had four qualifying offenses for an Armed Career
Criminal Act (“ACCA”) enhancement. (CR Doc. 124, 13:22–25, 14:1–6). The PSR
reflected the specifics of the separate qualifying offenses. (PSR, ¶¶ 37, 46, 49–50, and 52).
After hearing from Petitioner and the Government, the sentencing court sentenced
Petitioner to 280 months on counts I and III, to run concurrently, followed by 8 years’
supervised release on count I and 5 years’ supervised release on count III, also ordered to
run concurrently.
Following his conviction and sentence, Petitioner appealed and continued to be
represented by Mr. Ciaravella. Petitioner raised only a single issue on appeal, namely that
the trial court erred when it denied his motion to suppress. In his brief, Petitioner only
argued that the trial court erred in concluding that the search warrant was supported by
probable cause; Petitioner did not argue the trial court erred when it concluded, in the
alternative, that the good faith exception applied. The Government filed a motion for
summary affirmance based on Petitioner’s failure to challenge the alternative basis for
denying the motion to suppress. Mr. Ciaravella searched for cases and authority, and
consulted with his colleagues, but was unable to craft a good faith argument challenging
the trial court’s conclusion that the evidence should not be suppressed based on the good
faith exception. The Eleventh Circuit then affirmed the trial court’s denial of the motion to
suppress based on Petitioner’s failure to argue the good faith exception did not apply.

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PETITIONER’S GROUNDS FOR RELIEF
On March 28, 2016, Petitioner filed this timely motion to vacate, set aside, or correct
sentence. In his motion, Petitioner raised the following five grounds, which have been
rephrased for clarity:
1. Appellate counsel was ineffective for failing to respond to the Government’s motion
for summary affirmance because counsel did not understand procedures governing
direct appeals.
2. The sentencing court erred in sentencing Petitioner with the ACCA enhancement
because the Government never proved Petitioner’s qualifying offenses to a jury;
3. The trial court erred when it gave the modified Allen charge to the jury, and trial
counsel was ineffective for failing to object to the instruction.
4. The trial court erred when it allowed trial to proceed despite Petitioner’s medical
condition, and trial counsel was ineffective for failing to bring the illness’s effects
to the trial court’s attention.
5. Petitioner’s sentence is a violation of the Eighth Amendment due to his medical
condition.
DISCUSSION
I. Standard of Review
Ineffective-assistance-of-counsel claims are cognizable under § 2255. Lynn v.
United States, 365 F.3d 1225, 1234 n.17 (11th Cir. 2004). In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court set forth a two-part test for analyzing ineffectiveassistance-of-counsel claims:

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First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland, 466 U.S. at 687. Strickland requires proof of both deficient performance and
consequent prejudice. Id. at 697 (“[T]here is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes an
insufficient showing on one.”); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998)
(“When applying Strickland, we are free to dispose of ineffectiveness claims on either of
its two grounds.”). “There is a strong presumption that counsel’s performance falls within
the ‘wide range of professional assistance’[;] the defendant bears the burden of proving
that counsel's representation was unreasonable under prevailing professional norms and
that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365,
381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 689,
104 S.Ct. at 2065). “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690,
104 S.Ct. at 2066. “[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.
Thus, Petitioner must demonstrate that counsel’s error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the

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judgment.” Id. at 691–92. To meet this burden, Petitioner must show “a reasonable
probability that, but for 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 694.
II. Analysis
Ground 1:

Ineffective assistance of appellate counsel

Petitioner alleges appellate counsel, Mr. Ciaravella, rendered ineffective assistance
because he was unfamiliar with appellate procedures and did not know he was required to
challenge the trial court’s alternative ruling on the motion to suppress. In his reply,
Petitioner goes a step further and alleges appellate counsel was ineffective for failing to
challenge the trial court’s alternative ruling on the motion to suppress. Specifically,
Petitioner wanted appellate counsel to argue that TPD lacked good faith in executing the
warrant on the premises because he has evidence that it was not his house. Petitioner
requests he be granted a new appeal to address this issue.
Petitioner is not entitled to relief and this ground must be denied. As a threshold
issue, the Court notes that Plaintiff’s claim does not amount to a forfeiture of an appeal
itself, but rather is a claim that he was deprived a fair judicial proceeding. Roe v. Flores–
Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). As such, there is no
presumption of prejudice and Petitioner must show his appeal would likely have merit.
Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013).
Here, Petitioner can neither establish that Mr. Ciaravella’s performance was
deficient, nor that he was prejudiced. Mr. Ciaravella, contrary to Petitioner’s allegations,

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was aware he needed to respond to the Government’s motion for summary affirmance in
order to prevent the Eleventh Circuit from affirming the denial of the motion to suppress.
Mr. Ciaravella researched to try to craft an argument to challenge the ruling that the good
faith exception to the warrant requirement applied, and even consulted with colleagues
about the issue. However, finding no basis on which to contest the ruling, Mr. Ciaravella
made the decision not to pursue the issue. Because Petitioner has not rebutted Mr.
Ciaravella’s sworn affidavit establishing his actions were reasonable, Petitioner has failed
to demonstrate that appellate counsel’s performance was deficient.
Additionally, Petitioner has not shown prejudice because he has not raised an
argument that would have merit on appeal. Petitioner’s sole basis for having the Court’s
alternative ruling on the motion to suppress be overturned is that he did not own the
residence that was searched. This argument, though, does not address whether TPD had a
good faith basis to believe the search warrant was supported by probable cause. Put another
way, TPD’s good faith belief that the search warrant was valid does not turn on where
Petitioner lived.
The Court also notes that if Petitioner did not reside at the searched premises as he
claims, there is a very good chance that he would not have had standing to challenge the
search at all. United States v. Jones, 184 F. App'x 943 (11th Cir. 2006) (explaining that a
defendant who claimed not to reside at an apartment lacked a reasonable expectation of
privacy in the premises and, therefore, lacked standing to suppress the evidence obtained
from the search). As such, Petitioner has failed to show that he was in any way prejudiced

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by Mr. Ciaravella’s failure to raise such an argument on appeal. Accordingly, the motion
is denied as to ground 1.
Ground 2:

Sentencing error related to ACCA enhancement

In this ground, Petitioner argues the sentencing court erred when it applied an
ACCA enhancement based on the PSR. The focus of Petitioner’s argument appears to be
that the Government never proved to a jury that he had the qualifying convictions and that
those convictions were separate incidents. According to Petitioner, this means the
sentencing court erred when it sentenced him using the ACCA enhancement.
The Court concludes this ground also fails to state a basis for relief because
Petitioner’s challenge was procedurally defaulted when it was not raised on direct appeal.
Generally, a defendant must raise a challenge to a criminal sentence on direct appeal or he
is barred from raising it in a § 2255 proceeding. Lynn v. United States, 365 F.3d 1225, 1234
(11th Cir. 2004). There are two exceptions to the procedural default rule:
The exceptions are: (1) for cause and prejudice, or (2) for a
miscarriage of justice, or actual innocence. See Lynn, 365 F.3d at 1234.
Under the cause and prejudice exception, a § 2255 movant can avoid
application of the procedural default bar by “show[ing] cause for not raising
the claim of error on direct appeal and actual prejudice from the alleged
error.” Id. Under the actual innocence exception—as interpreted by current
Supreme Court doctrine—a movant's procedural default is excused if he can
show that he is actually innocent either of the crime of conviction or, in the
capital sentencing context, of the sentence itself.
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011).
Here, Petitioner attempts to argue that he is actually innocent. In his reply, he argues:
“The failure to prove the elements of an ACCA violation 18 U.S.C. § 922(g)(1), 924(e)(2)
results in actual innocence, which equates to factual innocence.” (CV Doc. 14, p. 4).

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However, Petitioner does not allege that he does not actually have the qualifying separate
convictions, but instead argues the Government never proved the convictions to a jury,
resulting in a presumption that he did not have the qualifying convictions (i.e., the
Government did not overcome his presumption of actual innocence).
Petitioner’s argument misses the mark for many reasons. First, Petitioner is incorrect
that the Government was forced to prove the existence of the qualifying convictions to a
jury. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (explaining, “the
government need not allege in its indictment or prove beyond a reasonable doubt that a
defendant had prior convictions in order for a sentencing court to use those convictions for
purposes of enhancing a sentence.”). Second, courts are permitted to rely on the undisputed
facts in a PSR where, as here, the facts in the PSR are undisputed. United States v.
Bennett, 472 F.3d 825, 834 (11th Cir.2006) (“[T]he district court did not err in relying on
the undisputed facts in Bennett's PS[R] to determine that his prior convictions were violent
felonies under the ACCA and, therefore, that he was an armed career criminal.”); United
States v. Wade, 458 F.3d 1273, 1277 (11th Cir.2006) (“It is the law of this circuit that a
failure to object to allegations of fact in a PS[R] admits those facts for sentencing
purposes.”). Here, the PSR established that the qualifying offenses occurred on separate
occasions. Finally, Petitioner admitted through counsel at the sentencing hearing that he
had four qualifying convictions for the ACCA enhancement, which refutes Petitioner’s
argument that he is actually innocent. Accordingly, Petitioner’s motion is denied as to
ground 2.

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Ground 3:

Court error and ineffective assistance of counsel related to Allen charge

Petitioner’s third ground argues that the trial court erred when it gave a modified
Allen charge to the jury. Petitioner does not seem to have an issue with the fact that the
Court gave the Allen charge in general, but is focused on the portion in which the Court
explained that the jury would have to return on Tuesday or Wednesday of the following
week if a verdict was not reached by 5 p.m. when deliberations would end for the day.
Petitioner argues that portion of the instruction was inherently coercive. Petitioner also
states that counsel was ineffective for not objecting to that portion of the Allen charge.
Petitioner is not entitled to relief on this basis because the Court did not err and
counsel was not deficient. When a defendant does not object to an Allen charge, a court’s
decision to give the instruction will not be reversed unless there is plain error. United States
v. Douglas, 572 F. App'x 876, 877 (11th Cir. 2014). To determine whether there was plain
error, courts should consider whether the Allen charge was inherently coercive. Id. The
following factors are considered when determining whether an Allen charge was inherently
coercive:
(1) whether the charge instructed the jurors that they are not expected to give
up their honest beliefs about the weight of the evidence; (2) whether the jury
was polled before the charge was given; (3) whether the charge was given
after a second notification from the jury that there was difficulty reaching a
verdict; and (4) the amount of time between giving the charge and the
announcement of the verdict.
United States v. Jones, 518 F. App'x 741, 743 (11th Cir. 2013) (citing United States v.
Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008)).

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Here, the Court did not err by giving the modified Allen charge. 1 This case is similar
to Jones, in which the Eleventh Circuit found an Allen charge was not inherently coercive.
Id. There, as here, the jury reached a unanimous decision on all but one count after a few
hours of deliberation. Id. at 742. The trial court told the jurors they were not expected to
give up their honest beliefs and the jury was not polled. Id. at 742–43. There also, the court
gave the Allen charge after just one statement from the jury that it was having trouble
reaching a verdict. Id. at 743. Finally, the Eleventh Circuit concluded the fact that the jury
returned a verdict 30 minutes after receiving the Allen charge did not change its decision.
Id. (quoting United States v. Chigbo, 38 F.3d 543, 545–46 (11th Cir.1994)). Just as in
Jones, the Court concludes the Allen charge given in this case was not inherently coercive,
and, therefore, the trial court did not err.
This Court also notes that the reference to the jury coming back the following week
was not coercive, but was rather simply informative. The trial court was letting the jury
know they would not be kept past 5 p.m. for deliberations, and when deliberations were
expected to resume. There was no threat that the jury would be kept in solitude for days
unless they reached a verdict, or that the jury was required to return a unanimous verdict.
See United States v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007) (explaining, “An
instruction which appears to give a jury no choice but to return a verdict
is impermissibly coercive.”).

1

Even if the Allen charge were inherently coercive, the Court concludes alternatively that
Petitioner procedurally defaulted this issue by not raising it on direct appeal. See Nguyen v. United
States, No. 1:04-CV-1019-CC, 2014 WL 6667098, at *17 (N.D. Ga. Nov. 24, 2014).

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Because the trial Court did not err in giving the Allen charge, the Court also
concludes trial counsel’s failure to object to it does not rise to the level of deficient
performance. Had Mr. Ciaravella objected to the Allen charge, the trial court would have
overruled the objection. Thus, Mr. Ciaravella’s consent to the Allen charge was not below
the constitutionally-guaranteed level of performance.
Further, Mr. Ciaravella explained his sound strategy for not objecting to the Allen
charge, which was not rebutted by Petitioner. Mr. Ciaravella explained that he hoped the
Allen charge would cause the jury to reach a compromise verdict and find Petitioner not
guilty of count II, which, in his opinion, was the only count on which they could have
disagreed. (Doc. 6-4, ¶7). Petitioner’s mere speculation that Mr. Ciaravella may have been
mistaken is insufficient to meet Petitioner’s burden of showing that the strategy was not
sound. Kimmelman, 477 U.S. at 381. Accordingly, the Court concludes Petitioner’s motion
must be denied as to ground 3.
Ground 4:

Court error and ineffective assistance of counsel related to Petitioner’s
medical condition

Petitioner argues in ground 4 that his trial was unfair because he was unable to assist
trial counsel due to his diabetes. Because of the symptoms, Petitioner argues that the trial
court erred in not staying the proceedings until he was well enough to assist counsel, and
that counsel was ineffective for not bringing the illness to the trial court’s attention.
As to the claim that the trial court erred in not delaying the proceedings, the Court
concludes Petitioner’s argument fails. The record reflects the trial court was never told
Petitioner’s ability to assist his counsel was impaired. Rather, the trial court was informed:

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Oh, Your Honor, there was another subject. Mr. Vernon has a medical
condition which requires him to regularly need to use the restroom and it is
often a matter of urgency. So I just wanted the Court to be prepared for that.
I would say it's more often than once per hour. In my experiences of being
with him in the jail, it's more frequent than that, it's maybe every 45 minutes.
As I said, when he has to go, it's pretty quick that he needs to.
(Doc. 118, 4:18–25, 5:1). Because the trial court was not aware Petitioner’s medical
condition affected his ability to assist counsel, it did not err when it allowed trial to proceed.
This Court also concludes Petitioner has not shown how he was prejudiced by trial
counsel failing to inform the trial court of Petitioner’s symptoms. 2 Petitioner’s only
argument with regard to prejudice is that the symptoms impaired his ability “to prove that
the residence was not his and the items from the trash pull did not indicate the targeted
apartment belonged to [Petitioner].” (Doc. 14, p. 6). Petitioner argues that him reviewing
the evidence would have allowed him to explain why the search was in bad faith.
This argument, however, does not show that the result of the trial would have been
different because Petitioner made that argument at trial and the jury rejected it. 3, 4

2

There is a dispute as to whether Mr. Ciaravella was informed Petitioner was experiencing
these symptoms. (Docs. 1, p. 17; 6-4, ¶8; and 14, p. 6). The Court need not resolve that issue since
it only bears on deficient conduct, not prejudice. Strickland, 466 U.S. at 697.
3

The following citations to the trial transcript demonstrate this argument was amply made:
Doc. 121, 22:14–23; 23:3–16; 130:16–25; 131:1–21; 132:3–8; 135:25–25; 136:1–10; Doc. 122,
82:4–21; 83:4–21; 84:7–22; 86:10–14; 96:5–25; 97:1–3; 101:5–17; 104:1–8; 114:25; 115:1–5;
118:13–23; 123:10–25; 124:1–6; 133:24–25; 134–143; 147:4–25; 148:1–9; Doc. 123, 32:8–25;
33:1–13.
4

The Court also notes that there was sufficient evidence from which the jury could have
reasonably concluded that Petitioner did reside at the property, such as finding mail addressed to
Petitioner during one of the trash pulls, his driver’s license listing the subject residence as
Petitioner’s residence, the TECO account for the residence being in Petitioner’s name, Officer
Klotzbach’s testimony that Petitioner told him he moved into the residence, and Petitioner’s
sister’s testimony that he lived at the residence.

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Petitioner took the stand at trial and testified as follows on direct:
Q:
A:
Q:
A:

Mr. Vernon, on February 1st of this year, 2013, where were you
living?
Going back and forth from Nade house to my mom's house.
I'm sorry. You -- you might have to speak up a little bit there.
Going back from Nade house, my lady, and my mom house.

(Doc. 122, 114:25 and 115:1–5). Petitioner’s own testimony was that he lived at both the
subject residence (his “mom’s house”) and his girlfriend’s house when the search warrant
was executed. This makes it far from probable that a jury would have been able to conclude
that Petitioner did not live at the residence when it was searched regardless of whether trial
counsel informed the trial court of Petitioner’s medical condition. Finally, as explained
above, Petitioner would not have had standing to argue the search was in bad faith if he did
not reside there or otherwise admit sufficient ties to establish he had a reasonable
expectation of privacy.
For all of these reasons, this Court concludes Petitioner has not demonstrated that
there is a reasonable probability that the outcome of the trial would have been different if
trial counsel had informed the trial court about Petitioner’s medical condition. Therefore,
the Court must deny the motion as to ground 4.
Ground 5:

Sentence violates Eighth Amendment

Petitioner’s argues in his final ground that his sentence violates the Eighth
Amendment due to the quality of healthcare in prison. Such a claim is not cognizable in a
motion brought under § 2255. Fernandez v. United States, 941 F.2d 1488, 1494–95 (11th
Cir. 1991); Isacson v. United States, No. 1:12-CR-40, 2013 WL 6097231, at *5–6 (N.D.
Ga. Nov. 19, 2013). Accordingly, the Court must deny ground 5 of Petitioner’s motion.

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CONCLUSION
Petitioner is not entitled to relief on any of the grounds argued in his § 2255 motion.
Accordingly, and for the reasons stated above, the Court hereby denies Petitioner’s motion.
It is therefore ORDERED AND ADJUDGED that:
1.

Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (CV Doc. 1)
is DENIED.

2.

The Clerk is directed to terminate any pending motions as moot and close
this file.

3.

The Clerk is further directed to terminate from pending status the motion to
vacate found at Doc. 134 in the underlying criminal case, case number 8:13cr-115-T-30MAP.

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 writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 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

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encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks omitted). Petitioner has not made the requisite showing in these
circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, this 18th day of November, 2016.

Copies furnished to:
Counsel/Parties of Record

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