Hayes v. United States of America
ORDER summarily denying 1 Plaintiff's Motion to Vacate/Set aside/Correct Sentence (2255). The clerk is directed to enter judgment for Defendant and to CLOSE the case. The Court declines to issue a certificate of appealability because Pla intiff has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. section 2253(c)(2). The Court also declines to allow Plaintiff to proceed IFP pursuant to 28 U.S.C. section 1915(a)(3) because his appeal would not be taken in good faith. Signed by Judge Richard A. Lazzara on 10/6/2017. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO. 8:17-cv-609-T-26AAS
UNITED STATES OF AMERICA,
BEFORE THE COURT is Plaintiff’s timely Motion to Vacate, Set Aside, or
Correct Sentence filed, pro se, pursuant to 28 U.S.C. § 2255 with supporting memoranda
of law1 and the Government’s Response.2 Although the Plaintiff was afforded the
opportunity to file a reply by September 29, 2017,3 he has failed to do so. After carefully
reviewing the motion, response, and the record of the prior criminal proceedings,4 as
See docket 1 (original motion). This Court directed Plaintiff to file an amended
motion in compliance with Rule 2(b)(2) of the Rules Governing Section 2255
Proceedings for the United States District Courts, or the memorandum referred to in his
initial motion. See docket 3 (order). Plaintiff complied by filing the memorandum,
which is sealed based on the improper disclosures of the minor victims’ full names. See
docket 4 (memorandum) and docket 6 (order sealing docket 4).
See docket 11.
See docket 13.
See Case No. 8: 14-cr-53-T-26AAS.
required by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court concludes that the motion is due to be summarily denied.
Plaintiff was indicted for and convicted of one count of conspiracy to engage in
sex trafficking of minors by force or coercion, and two counts of trafficking minors to
engage in sex acts, each count addressing a different minor.5 In December 2012, Plaintiff
took two fourteen-year-old girls to his home where they saw he had possession of a gun.
He then gave them marijuana and had sex with one of them. He proceeded to take them
to a drug house where he directed them to have sex with his drug associates. At his
direction, Plaintiff’s co-conspirator Ms. Jones transported the girls to a hotel room and
arranged for them to have sex with multiple people. She eventually advertised them
online using a cell phone. Plaintiff applied some of the money collected from the paying
individuals to continue renting the hotel room. Plaintiff threatened and abused his coconspirator in front of the girls and also threatened the girls, controlling them through
fear. One of the girls suffered painful injuries from the repeated rapes which required
medical attention. Both suffered and continue to suffer emotional pain from their
See docket 1 (indictment) and 42 (judgment and sentence) in Case No. 8:14-cr53-T-26AAS. Before the scheduled trial, a notice of maximum penalties was filed, which
stated that count one carried a maximum sentence of life in prison with supervised release
of two to five years and the other two counts carried a minimum of fifteen years and a
maximum of life per count with supervised release from five years to life per count. See
docket 32 in Case No. 8:14-cr-53-T-26AAS.
experiences as evidenced through nightmares and the inability to form normal
Just before trial, Plaintiff withdrew his plea of not guilty and entered an open plea
of guilty to all three counts on September 25, 2014.6 At the plea hearing, Plaintiff
admitted he was “fully and completely satisfied with the advice and representation” that
Mr. O’Brien had given him in the case.7 Plaintiff orally stipulated that the Government
could prove his guilt beyond a reasonable doubt as to each of the three charges in the
Plaintiff was sentenced on December 12, 2014, to 360 months (thirty years) of
imprisonment to run concurrently on all three counts, to be followed by supervised release
for life on counts two and three, and for five years on count one.9 The guideline
imprisonment range was 360 months to life, based on a total offense level of forty-two
and a criminal history category of VI. The probation office recommended the guidelines
range of 360 months to life in prison. Mr. O’Brien argued that the “parity” provision of
§ 3553(a) required the imposition of “the lowest permissible sentence allowed by law”
See docket 33 (clerk’s minute entry of 9/25/2014) and docket 60 (transcript of
change of plea hearing) in Case No. 8:14-cr-53-T-26AAS.
See docket 60, pages 9-10 in Case No. 8:14-cr-53-T-26AAS.
See docket 60, pages 25-26 and 30 in Case No. 8:14-cr-53-T-26AAS.
See docket 42 in Case No. 8:14-cr-53-T-26AAS.
and therefore requested 180 to 240 months’ (fifteen to twenty year’s) imprisonment.10 He
further argued that Plaintiff’s horrific childhood should be considered together with the
favorable treatment awarded Manuel Walcott, an unrelated but arguably comparable
defendant who was sentenced in 2010 for trafficking a child and an eighteen-year-old to
twenty years’ imprisonment.11 The Government urged a sentence for Plaintiff of thirtyfive to forty years’ imprisonment.12
Plaintiff appealed his low-end guideline sentence as substantially unreasonable.13
His conviction and sentence were affirmed.14 The Eleventh Circuit ruled that the 360month sentence was “well below the statutory maximum of imprisonment for life, [and]
addressed the need ‘to protect the public’ and to ‘deter future criminal history’ and
accounted for [Plaintiff’s] ‘history and characteristics.’” (citation omitted).15 In
differentiating Walcott from Plaintiff, the Eleventh Circuit noted:
[Plaintiff] was the leader of the conspiracy, mistreated the
minor victims, and amassed substantial criminal history points
for crimes involving firearms and crimes of violence, and was
not similarly situated to Walcott, who had been apprehended
See docket 39, pages 1-2 in Case No. 8:14-cr-53-T-26AAS.
See docket 39, page 3, and docket 49, pages 7-8 and 16, in Case No. 8:14-cr53-T-26AAS.
See docket 49, pages 12-13, in Case No. 8:14-cr-53-T-26AAS.
See dockets 45 and 54 in Case No. 8:14-cr-53-T-26AAS.
See docket 54 in Case No. 8:14-cr-53-T-26AAS.
See docket 54, page 2, in Case No. 8:14-cr-53-T-26AAS.
during a sting operation and had a lower criminal history
“[O]nce 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, 1344 (11th Cir. 2000) (quoting United States v. Natelli, 553 F.2d 5, 7 (2d Cir.
STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL
Plaintiff’s claims of ineffective assistance of counsel are governed by the two-part
standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The Eleventh Circuit has explained the test as requiring the
petitioner to “show both incompetence and prejudice: (1) he must show that ‘counsel’s
representation fell below an objective standard of reasonableness,’ and (2) he must show
that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Kokal v. Sec’y Dep’t of Corrs., 623
F.3d 1331, 1344 (11th Cir. 2010) (citing and quoting Strickland, 466 U.S. at 687-88, 694,
104 S.Ct. at 2064, 2068). The Court is not required, however, to consider them in any
order, and if prejudice against the Plaintiff is determined, then the adequacy of counsel’s
performance need not be measured. Kokal, 623 F.3d at 1344-45. In the context of a
guilty plea, as in this case, the prejudice factor requires that the plaintiff show by “a
See docket 54, pages 2-3, in Case No. 8:14-cr-53-T-26AAS.
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366,
370, 88 L.Ed.2d 203 (1985). Applying these principles, the Court addresses each of
Plaintiff’s two grounds for ineffective assistance of counsel in the investigative, plea, and
Plaintiff claims that his counsel failed to investigate before his plea, the
contradictory, unreliable statements made by the two minor victims and his co-conspirator
Ms. Jones as well as their lack of credibility .17 Plaintiff argues that a thorough review of
the witness statements would have disclosed the absence of an evidentiary predicate for
any conviction. Had counsel investigated the discrepancies and explained the possible
“defense” of impeaching the witnesses using their inconsistent statements at trial,
Plaintiff alleges he would not have pleaded guilty and would have proceeded to trial.
Plaintiff has therefore alleged the necessary prejudice in the context of a guilty plea. See
Hill, 474 U.S. at 59 (requiring allegation that defendant would not have pleaded guilty
and would have insisted on going to trial but for counsel’s errors).
The first two contradictory statements cited by Plaintiff show that Ms. Jones
indicated she and both minor girls engaged in prostitution at the hotel, while one of the
minors’ stated that she never saw Ms. Jones engage in prostitution. Another example
See docket 4, pages 4-5.
reveals a discrepancy concerning exactly how one of the minors met Plaintiff, either 1)
with Ms. Jones while the two minors were walking on a particular street, or 2) without
Ms. Jones when Plaintiff exited from a cab on that same street. A third instance
illustrates that one of the minors made contradictory statements to police officers
regarding whether Ms. Jones continued to use her for prostitution after the minor
complained of pain. Plaintiff contends that these are just three examples of many
inconsistent stories told by the three females, and counsel could have successfully
impeached these witnesses on the stand at a trial.
Plaintiff’s allegations have no merit and may be summarily denied.18 Prior to his
guilty plea, his counsel met with him on multiple occasions as documented in counsel’s
case notes and explained in counsel’s affidavit.19 Plaintiff had the reports that contained
the witness interviews, which were forwarded to and discussed with Plaintiff.20 After
Plaintiff rejected the plea agreements, counsel wrote to Plaintiff that he intended to
continue to interview all potential witnesses.21 Shortly thereafter, counsel informed
An evidentiary hearing is unnecessary where the record makes “manifest the
lack of merit of a Section 2255 claim.” United States v. Lagrone, 727 F.2d 1037, 1038
(11th Cir. 1984).
See docket 11-1 and 11-2.
See docket 11-1, page 2.
See docket 11-1, page 3, and docket 60, page 9, in Case No. 8:14-cr-53-T26AAS (“COURT: Mr. Hayes, did Mr. O’Brien, in fact, discuss with you these two plea
agreements? DEFENDANT: Yes, Sir.”).
Plaintiff that his witnesses did not show up to talk.22 Counsel avers that, in his opinion,
the witnesses’ “collective and/or individual credibility could [not] be damaged enough to
establish reasonable doubt with a jury.”23 He further swears that he explained this
reasoning to Plaintiff on numerous occasions.24
Counsel’s notes reflect that just prior to trial, he discussed with Plaintiff the
significance of pleading open without an agreement.25 At the plea hearing, Plaintiff gave
no indication he was dissatisfied with counsel’s representation. He admitted that counsel
discussed with him all the evidence the Government intended to use to convict him on all
THE COURT: [P]rior to this proceeding, did you, in fact,
have an opportunity to meet with Mr. O’Brien, to review and
to discuss with him the Indictment that’s been returned
against you by the grand jury, to review and to discuss with
him what evidence the government may have to convict you
of these offenses, to review and to discuss with him what
options you may have and to otherwise seek out his counsel
THE DEFENDANT: Yes, sir.
THE COURT: Are you fully and completely satisfied with the
advice and representation he’s given you?
THE DEFENDANT: Yes, sir.26
See docket 11-1, page 8.
See docket 11-2, page 2.
See docket 11-2, page 2.
See docket 11-1, page 9.
See docket 60, page 9.
The evidence included the alleged inconsistent statements of the three females.
In reviewing the articulated statements cited by Plaintiff, none of them reveal any
inconsistencies that would negate any of the elements of the offenses. Whether Ms. Jones
also engaged in prostitution is irrelevant to the sex trafficking of the two minor girls. The
precise circumstances surrounding the moment the girls met Plaintiff– either walking on
the street or exiting a cab– is inconsequential to the crimes. Whether Ms. Jones continued
to use or ceased to use for prostitution one of the minor girls after she suffered bodily
injury does not change the evidence to support the convictions of the offenses in the
indictment, which were already committed at that point in time. Thus, the insubstantial
inconsistencies in the statements are unlikely to have produced a different outcome had
Plaintiff gone to trial. In any event, the record shows that counsel fully explored with
Plaintiff the absence of any positive effect the statements would have had at trial, and
thus, Plaintiff was fully informed at the time he entered his guilty plea. Plaintiff has
failed to demonstrate prejudice by counsel’s failure to investigate the inconsistent
statements, which the record shows would not have formed the basis of any defense with
(enumerated “four” in the motion)
Plaintiff claims his counsel was ineffective for failing to file a motion to suppress
the unreliable statements of the two minors and Ms. Jones set forth in ground one, and for
failing to object to one particular application of the sentencing guidelines, which provides
for a two-level enhancement “[i]f the offense involved the use of a computer or an
interactive computer service to . . . entice, encourage, offer, or solicit a person to engage
in prohibited sexual conduct with the minor.” U.S.S.G. § 2G1.3(b)(3)(B).
Failure to Move to Suppress Statements – Investigative-Stage Claim
As discussed above, Plaintiff entered a knowing and voluntary guilty plea. In any
event, no prejudice has been shown by counsel’s failure to file a motion to suppress had
Plaintiff not pleaded guilty. There is no reasonable probability that the outcome of the
case would have been different if his counsel had argued to suppress the statements that
Plaintiff admitted were true in his plea colloquy. Cf. Jones v. United States, 224 F.3d
1251, 1258 (11th Cir. 2000) (noting Strickland requirement that defendant must show
reasonable probability outcome would have been different if counsel had argued for
suppression). Counsel cannot be faulted for failing to file meritless motions. See
Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (finding counsel not ineffective
for failing to raise issues that lack merit).
Failure to Object to Guidelines Scoring – Sentencing-Stage Claim
The Presentence Investigation Report (PSR) prepared by the probation office set
Plaintiff’s total offense level at forty-two, which included an increase of two points under
U.S.S.G. § 2G1.3(b)(3)(B) because the offense involved the use of a computer to solicit a
person to engage in illegal sexual conduct. Counsel did not object to the two-point
enhancement under U.S.S.G. § 2G1.3(b)(3)(B).
In this case, Ms. Jones, Plaintiff’s co-conspirator, used a cell phone to place
advertisements concerning the girls online. Plaintiff is responsible for the conduct of his
co-conspirator. See Smith v. United States, 568 U.S. 106, 133 S.Ct. 714, 184 L.Ed.2d
570 (2013) (holding that defendant remains guilty of conspiracy for acts occurring until
withdrawal from the conspiracy). A cell phone constitutes a computer for purposes of
U.S.S.G. § 2G1.3(b)(3)(B). See United States v. Hill, 783 F.3d 842, 845-46 (11th Cir.
2015) (noting that a cell phone is a kind of computer and holding that defendant’s use of
his cell phone to place online ads offering young girls for prostitution falls within the
enhancement). Even though Plaintiff was not aware of the online ads until after they
were posted, the offense he was charged with and pleaded guilty to involved a computer
and therefore enhancement was proper. See United States v. Carmona, 625 F. App’x 963,
967-68 (11th Cir. 2015) (unpublished opinion) (holding that even though defendant did
not take the photographs of the minor, it was reasonably foreseeable his co-conspirator
would use the photographs in ads for solicitation of prostitution and he was responsible
for co-conspirator’s conduct). In any event, Plaintiff cannot demonstrate prejudice
because a two-point reduction would change the total offense level to forty with a
criminal history category of VI, which would result in the same advisory guideline range
of 360 months to life imprisonment.27
ACCORDINGLY, it is ORDERED AND ADJUDGED that Plaintiff’s Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1) is
DENIED. The Clerk is directed to enter judgment for Defendant, to terminate all
deadlines and pending motions, and to CLOSE this case.
Additionally, the Court declines to issue a certificate of appealability because
Plaintiff has failed to make a substantial showing of the denial of a constitutional right as
required by 28 U.S.C. § 2253(c)(2). Nor will the Court permit Plaintiff to proceed to
appeal in forma pauperis because such an appeal would not be taken in good faith. See
28 U.S.C. § 1951(a)(3). Instead, Plaintiff will be required to pay the full amount of the
appellate filing fee pursuant to §§ 1951(b)(1) and (2).
DONE AND ORDERED at Tampa, Florida, on October 6, 2017.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
As an added note, counsel responds that not only was U.S.S.G. §
2G1.3(b)(3)(B) correctly applied, but the probation office overlooked U.S.S.G. §
4B1.5(b)(1), which would have resulted in five offense levels higher. See docket 11-2,
COPIES FURNISHED TO:
Counsel of Record
Plaintiff, pro se
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?