Dasinger v. United States of America
Filing
25
ORDER granting in part and denying in part Dasinger's 1 motion to vacate, set aside, or correct her sentence. For Ground One, a certificate of appealability and leave to appeal in forma pauperis are DENIED. For Ground Two, Dasinger d emonstrates that she is entitled to release. The Clerk is DIRECTED to VACATE Dasinger's judgment in United States v. Dasinger, No. 8:14-cr-62-MSS-AEP (M.D. Fla.), to RE-OPEN the criminal action for further proceedings consistent with this Order, to DOCKET a copy of this Order in the criminal action, to ENTER a judgment in this civil action in favor of Dasinger on Ground Two and against Dasinger on Ground One, and to CLOSE this case. Signed by Judge Mary S. Scriven on 9/22/2023. (JT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
v.
Case No. 8:17-cv-1874-MSS-AEP
8:14-cr-62-MSS-AEP
STEPHANIE DASINGER
/
ORDER
This cause comes before the Court for consideration of Petitioner Stephanie
Dasinger’s timely filed motion to vacate, set aside, or correct her sentence, pursuant
to 28 U.S.C. § 2255. (Civ. Docs. 1, 2) 1 Upon consideration of the motion and in
accordance with the Rules Governing Section 2255 Cases in the United States District Courts,
the Court ORDERS that the motion to vacate is GRANTED IN PART and DENIED
IN PART.
I.
STATEMENT OF THE CASE AND FACTS
A.
Dasinger’s Criminal Case
On October 9, 2013, law enforcement searched a Days Inn hotel room, resulting
in Dasinger’s arrest. Dasinger was indicted on February 20, 2014, along with
co-defendant Jefferson Patterson. (Doc. 1) The indictment brought four charges
against Dasinger: (i) conspiracy to possess with intent to distribute 50 grams or more
References to filings in criminal case number 8:14-cr-62-T-35AEP are cited as “Doc.
[document number].” References to filings in this civil case are cited as “Civ. Doc. [document
number].”
1
of methamphetamine; (ii) possession with intent to distribute 50 grams or more of
methamphetamine; (iii) possession of a firearm in furtherance of a drug trafficking
crime; and (iv) possession of a firearm by a convicted felon. (Id.) After counsel was
appointed, the Government offered Dasinger a plea deal of 10 years’ imprisonment in
exchange for testifying against her co-defendant. (Doc. 121 at 4:17–5:2; Civ. Doc. 2 at
2) Dasinger rejected the offer. At this time, the Government had not yet enhanced
Dasinger to a mandatory life sentence under 21 U.S.C. §§ 841(b)(1)(A) and 851 (2013).
(Doc. 121 at 5:23–6:11; Civ. Doc. 2 at 2) On July 3, 2014, the Government filed a
notice that Dasinger was subject to enhanced, mandatory penalties under 21 U.S.C.
§§ 841(b) and 851 based on four prior state court convictions for possession of small
quantities of methamphetamine. (Doc. 35)
On July 15, 2014, after the Government filed the notice of the enhancement,
Dasinger moved to suppress the methamphetamine and the loaded firearm found in
the trunk of a car parked outside the Days Inn hotel room where she was staying. (Doc.
37) She also sought suppression of her post-arrest statements. (Id.) On July 28, 2014,
the Government responded to Dasinger’s motion, principally contending that the
search of the hotel room — which precipitated the search of the vehicle — was
constitutional because a co-tenant of the room, James Lloyd, consented to the search.
(Doc. 40) On August 4, 2014, the Court held an evidentiary hearing on the motion.
(Doc. 47)
At the hearing, the Court heard testimony by law enforcement officers Bobby
Hartzig and Luis Rios, Special Agent Daniel McCaffrey, and the hotel manager,
2
Vinnie Sookhoo. (Docs. 50; 120) Trooper Hartzig testified on direct and cross
examination that Lloyd consented to the search of the hotel room that Dasinger
occupied. (Doc. 120 at 17:2–4, 24:17–20, 29:10–14)
On September 4, 2014, the Court issued a written Order denying the motion to
suppress. (Doc. 59) The Court determined that the initial search of the hotel room was
constitutional under the third-party consent doctrine because it was “undisputed that
Lloyd gave his consent for Troopers Hartzig and Rios to enter and search Room 258,
which was rented by Lloyd and occupied by [Dasinger and co-defendant Patterson].”
(Id. at 7) Lloyd had not testified at the suppression hearing, and the Court found that
there was no evidence in the record to dispute that he had leased and consented to the
search of Dasinger’s room. (Id. at 4) Thus, the Court was not required to resolve factual
disputes about whether law enforcement “barged into” Dasinger’s room or entered
with her permission. (Id. at 4, 9)
After the denial of the motion to suppress, the Government extended a second
plea offer. The Government agreed to waive the mandatory life sentence under Section
841(b)(1)(A) based on the enhancement for two or more prior felony drug convictions,
if Dasinger pleaded guilty to the possession of methamphetamine count and agreed to
an enhancement based on one prior felony drug conviction. If Dasigner accepted the
second plea offer, she faced a sentence between twenty years of prison and life. See
21 U.S.C. § 841(b)(1)(A) (2013). (Doc. 121 at 5:3–10; Civ. Doc. 2 at 4) Dasinger
rejected this offer. (Civ. Doc. 2 at 4–5)
3
On September 12, 2014, three days before Dasinger’s trial was scheduled to
begin, Dasinger filed a motion to continue and motion for rehearing based on
discovery of a new witness, Lloyd, whose testimony would contradict the testimony
at the suppression hearing regarding consent. (Doc. 65) Specifically, Dasinger’s
counsel, Ray Lopez, represented that:
On September 10, 2014 the undersigned counsel received a
telephone call from a person who represented himself to be
James Lloyd. Mr. Lloyd advised the undersigned counsel
that he had never given law-enforcement permission to
search the Defendant’s room and that they had in fact gone
up to the room without him knowing about it. The
undersigned counsel advised Mr. Lloyd that an investigator
would be interviewing him shortly to take his statement and
to await their telephone call. Mr. Lloyd lives in the
Brooksville, Florida area. Since the telephone conversation
with the undersigned counsel, nobody has been able to
reach Mr. Lloyd.
(Id. at ¶¶ 3–5) Thus, Lopez requested a continuance so that he could locate and
subpoena Lloyd for a rehearing on the motion to suppress. (Id. at ¶ 6) The Court denied
the motion to continue because the Government’s response to the suppression motion
filed on July 28, 2014 made clear Lloyd’s consent was at issue, and “Defendant had
ample time between the filing of the Government’s response and the hearing to locate
and interview Lloyd.” (Doc. 66) However, the Court stated that if Lopez was able to
locate and secure Lloyd’s presence at the beginning of trial, it would “permit an
opportunity for Lloyd to be heard.” (Id.)
On the morning of trial on September 15, 2014, the Court addressed the issue
of the Government’s prior plea offers and Dasinger’s concern about Lopez’s ineffective
4
assistance for his failure to subpoena Lloyd to appear at the suppression hearing and
at the first day of trial. (Doc. 121 at 4–30) In response to Dasinger’s concern, Lopez
made the following statement to the Court:
[Trial counsel:]
Your Honor, again, this was at the
eleventh hour. [Dasinger] advised me
that Mr. Lloyd was going to be calling
me. And I think he called me on
Thursday. The first thing I did was I got
an investigator, prospectively, to see if
they could go up there and interview
Mr. Lloyd. Mr. Lloyd called me, as I
stated in the motion. I did not have —
get all of his — I had his phone
numbers, I didn’t get any of his other
information because I said the
investigator is going to be calling you
right after we get off the phone or
shortly thereafter.
Subsequent to that, I made several
phone calls to Mr. Lloyd because my
investigator advised me later on that he
couldn’t get ahold of Mr. Lloyd, and
that he had left messages, went straight
to voicemail, and he left messages for
Mr. Lloyd. I attempted to call Mr.
Lloyd as well, no response. According
to my investigator, he also attempted to
call him over the weekend. I’ve
attempted to call Mr. Lloyd.
I can understand Ms. Dasinger’s
concern that this individual could come
in here and as far as the issue, at least as
far as the motion to suppress, maybe
not the trial, but effectively state that he
never gave what, you know, the legal
term, third-party consent to the police
to go and search her room or have her
removed from the room.
5
And again, this was not presented to me
until late last week. I did my best short
of actually going up there to search
myself for Mr. Lloyd.
(Id. at 14:17–15:17) Lopez also advised the Court that he made a strategic decision not
to call Lloyd to testify at the August 21, 2014 suppression hearing because both he and
Assistant Federal Public Defender Howard Anderson, counsel for Dasinger’s codefendant, believed that Lloyd was working with the Government. (Id. at 16:20–17:8)
Based on these representations, the Court found that Lopez’s assistance was not
ineffective and declined Dasinger’s request to terminate his services. (Id. at
17:10–18:22) The Court also provided Dasinger with additional time to review with
her attorney the amended plea offer, which the Government had not withdrawn, and
the Court conducted a colloquy of Dasinger thereafter to ensure her decision to decline
the offer was knowing and voluntary. (Id. at 18:23–19:4, 28:1–30:23)
Dasinger proceeded to trial. At trial the Government presented the following
evidence. Dasinger’s co-defendant, Patterson, testified that he and Dasinger were in a
romantic relationship for three months, both sold methamphetamine, and each
obtained methamphetamine from different suppliers. (Doc. 121 at 112–13) Lloyd
rented a hotel room for Patterson and Dasinger, Patterson and Dasinger drove to the
hotel in a Toyota that Dasinger borrowed from a friend, and both spent the night in
the room. (Doc. 121 at 113–14) Patterson kept eight ounces of pink methamphetamine
in the hotel room for safekeeping, and Dasinger kept four ounces of white
methamphetamine. (Doc. 121 at 115)
6
Patterson testified that, on October 8, 2013, he and Dasinger learned that law
enforcement had come to the hotel. (Doc. 121 at 115–16) Patterson became concerned
because a police officer had detained Lloyd, and Patterson and Dasinger kept drugs in
the hotel room. (Doc. 121 at 161) Dasinger placed her drugs in a pink purse, Patterson
placed his drugs in a box, and Dasinger and Patterson placed the purse and the box in
a blue backpack. (Doc. 121 at 117) Also, Dasinger saw a firearm that belonged to
Patterson in the backpack. (Doc. 121 at 119) Patterson placed the backpack in the
trunk of the Toyota. (Doc. 121 at 117) In the hotel room, Patterson and Dasinger hid
a scale used to weigh methamphetamine and small bags used to package
methamphetamine under a mattress. (Doc. 121 at 118)
Highway patrol troopers searched the hotel room, found a marijuana cigarette
in an ashtray, two digital scales and small plastic bags hidden under the mattress of
the bed, and a set of car keys that belonged to the Toyota parked outside. A canine
that sniffed the outside of the Toyota alerted the troopers to the presence of drugs in
the trunk. In the trunk of the Toyota, the troopers found the blue backpack that
contained the methamphetamine, marijuana, $4,900.00 in cash, and the firearm. 2
(Doc. 121 at 139–51, 180–81, 187–90)
On the basis of this information, an agent with the Drug Enforcement
Administration transported Dasinger from the hotel to the parking lot of the county
At trial, Dasinger stipulated that the firearm was manufactured outside of Florida and
therefore affected interstate commerce and that one bag in the blue backpack contained a
substance that was methamphetamine and weighed 131.8 grams and a second bag contained
a substance that was methamphetamine and weighed 199.5 grams. (Doc. 121 at 172–73)
2
7
jail. After Dasinger waived her constitutional rights, the agent interrogated Dasinger.
(Doc. 121 at 201–03) Dasinger admitted that four ounces of the methamphetamine
belonged to her, that eight ounces belonged to Patterson, that she placed her four
ounces in the backpack, that she obtained her four ounces from a supplier in
Brooksville on consignment, that the firearm belonged to Patterson, that she might
have touched the firearm, that her friend’s father owned the Toyota, and that Lloyd
rented the hotel room. (Doc. 121 at 203–05) The agent testified that an ounce of
methamphetamine cost between $1,200.00 and $1,500.00 and consists of 28.35 grams
and that an ounce of methamphetamine is not a quantity that a user would purchase
for personal use. (Doc. 121 at 200)
At the end of the Government’s case-in-chief, Dasinger moved for a judgment
of acquittal on all counts and renewed all previous motions, which requests were
denied. (Id. at 217:20–220:8) The Court confirmed its prior rulings on the suppression
motion and motion for rehearing, explaining that Dasinger had failed to identify any
new evidence that would alter those rulings. (Id.) Dasinger was found guilty of both
drug offenses and the possession-in-furtherance offense and was found not guilty of
the felon-in-possession offense. (Docs. 75, 104, 105)
Because the Government filed notice of the enhancement under Section 851
based on two or more prior felony drug convictions, the Court imposed two concurrent
mandatory life sentences for each drug conviction. To comply with Section 924(c), the
Court imposed a consecutive mandatory five-year sentence for the possession of a
firearm in furtherance of a drug trafficking crime conviction. 18 U.S.C.
8
§ 924(c)(1)(A)(i), (c)(1)(D)(ii) (2013). (Docs. 101, 105 at 2, 123 at 11:22–14:1) Dasinger
appealed her convictions and sentences. (Doc. 110) The Eleventh Circuit affirmed,
after determining that this Court appropriately denied the suppression motion based
on the evidence before the court, the motion for rehearing, the motion for continuance,
and the motion for judgment of acquittal. (Doc. 129) The court of appeals further
determined that the mandatory life sentences were not substantively unreasonable and
did not violate the Eighth Amendment. (Id.)
B.
Dasinger’s § 2255 Motion and Relevant Evidence
Dasinger then filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate her
sentence. (Civ. Doc. 1) In support of her motion, Dasinger proffered a sworn affidavit
from Lloyd, in which he denied ever consenting to a search of the hotel room in which
Dasinger was staying. (Civ. Doc. 2-1 at ¶¶ 8–11) He also averred that he had attempted
to contact Dasinger’s attorney on several occasions prior to and after the suppression
hearing and was always available and willing to testify on her behalf. (Id. at ¶¶ 12–15)
He stated that, though he got through to Lopez’s secretaries, he never spoke to Lopez
or was contacted by him. (Id.)
The Government proffered Lopez’s competing affidavit in response. (Civ. Doc.
6-1) Lopez attested that Lloyd “never contacted [his] office prior to the hearing on the
motion [to suppress]” and that his secretary never took any calls from Lloyd. (Id. at 5)
Lopez averred that he “asked [Dasinger] on several occasions about Mr. Lloyd but she
had no information on him.” (Id.) Counsel also attested that prior to Dasinger’s trial,
he “did speak to someone who purported to be Mr. Lloyd by telephone.” (Id.) Lopez
9
then contacted private investigator Patrick Lee about arranging to have Lloyd
interviewed. (Id. at 5–6) Lopez avers that repeated attempts were made to contact
Lloyd on Thursday, September 11, 2014, the following day, and the weekend prior to
trial. (Id. at 6) The Court held an evidentiary hearing to address the factual dispute
raised by these competing affidavits. (Civ. Docs. 11, 19)
1.
Lloyd’s Testimony
At the hearing, Lloyd testified consistent with his affidavit that he was never
asked nor did he consent to a search of the room that Dasinger and Patterson occupied.
(Civ. Doc. 22 at 13:16–22; 24:17–19) Lloyd testified that after Dasinger’s arrest, a
mutual friend contacted him and explained that Lloyd might have information helpful
to Dasinger’s case. (Id. at 15:8–24)
Lloyd explained that he did not personally have a phone but was consistently
with people who had phones. (Id. at 16:19–17:4) Lloyd further testified that he
attempted to contact Lopez at least three times from various people’s phones, (Id. at
19:8–18), but during his testimony he discussed what appears to be six different
attempts. Lloyd first used a phone belonging to his cousin Josh, with whom he lived,
to contact Lopez. (Id. at 15:25–16:11) Lloyd stated that the second time he called
Lopez from Josh’s phone, he left a voice mail on an answering machine. (Id. at
17:8–24) Lloyd also attempted to call Lopez from Dasinger’s father’s phone, but Lopez
did not answer. (Id. at 16:12–22) At some point, Lloyd also called Lopez from his
friend Eugene’s phone. (Id. at 18:2–12) During this call, Lloyd testified that he spoke
10
to Lopez’s secretary who attempted to transfer him to Lopez’s cell phone, but the call
was terminated. (Id.) Lloyd stated that he believed he also attempted to contact Lopez
on two additional occasions using Josh’s and Eugene’s phones, but he could not reach
Lopez on either attempt and did not leave a voicemail on these occasions. (Id. at
19:16–20:1,14–24) Lloyd testified that he only left a voicemail for Lopez one time, (Id.
at 20:19–21:4), and that he never spoke to Lopez, either on the phone or in person. (Id.
at 21:6–9) Lloyd also testified that while he was trying to get in touch with Lopez,
Dasinger’s father visited him at his residence to speak about the case, but no lawyer or
investigator ever visited him there. (Id. at 22:24–23:10) Lloyd had been living at this
residence for “about seven years” at the point in time that he was trying to contact
Lopez, and he had “family members that live[d] all up and down that street.” (Id. at
21:16–22:1, 11–23)
2.
Dasinger’s Father’s Testimony
Dasinger’s father also testified at the evidentiary hearing. He testified that he
had known Lloyd for 10 to 15 years, and he lived 5 to 10 miles away from him. (Id. at
32:25–33:7) Dasinger’s father allowed Lloyd to use his phone to call Dasinger’s lawyer
“a couple [of] times” and he witnessed Lloyd unsuccessfully try to get in touch with
Lopez “[s]everal times,” including the time he got through to Lopez’s secretary. (Id. at
31:8–9, 20–32:2) He testified that he knew of and had visited Lloyd’s residence, but
Lopez never reached out to him to ask for assistance in locating Lloyd. (Id. at
32:6–17) Dasinger’s father also testified that Lloyd tried to call Lopez several times
11
before the trial, (Id. at 35:3–10), and that he heard Lloyd leave voicemails for Lopez
“[a] couple” of times. (Id. at 36:1–5) However, Dasinger’s father never called Lopez
to provide Lloyd’s contact information. (Id. at 36:6–8)
3.
Dasinger’s Testimony
Dasinger testified at the hearing that she tried to get Lloyd in contact with Lopez
by speaking to Lloyd directly and by asking her father and “Gene” to go to Lloyd’s
home and let him use their phones to contact her attorney. (Id. at 39:21–40:13) She
testified that she personally had ways for Lopez to get in touch with Lloyd, but Lopez
never asked for her assistance in doing so. (Id. at 41:19–24) She also testified that she
knew that Lloyd was willing to come to Court to testify on her behalf for the motion
to suppress hearing, and that she advised Lopez of this, but Lopez “stated that he had
it under control just with the hotel manager” and “didn’t need [Lloyd].” (Id. at
41:24–42:3) She reiterated that Lopez never discussed his inability to find Lloyd with
her or asked for her assistance reaching him, though she would have been able to
facilitate their communication if asked. (Id. at 42:4–16)
4.
Lopez’s Testimony
Attorney Lopez also testified at the hearing. Lopez stated that he first learned
of Lloyd’s involvement in the case from his review of the police report, but this review
alone did not prompt him to seek out Lloyd for any purpose. (Id. at 46:1–12)
Contradicting Dasinger’s testimony, Lopez testified that when he discussed Lloyd
with her, “she indicated that she did not know how to get a hold of him.” (Id. at
12
46:16–18) Lopez testified that he asked Dasinger whether she had had discussions with
Lloyd concerning his consent to the search, and “she didn’t have any knowledge of
that.” (Id. at 46:24–47:5)
Lopez further testified that he made a strategic decision along with Assistant
Federal Public Defender Howard Anderson, counsel for Dasinger’s co-defendant, not
to call Lloyd as a witness for the suppression hearing because they had other witnesses
available. (Id. at 46:16–23, 60:17–61:11) Specifically, Lopez explained that the hotel
manager’s testimony contradicted that of the police and bolstered the defense theory
that the entry to Dasinger’s room was not consensual. (Id. at 47:19–48:3; 61:5–11)
However, Anderson, not Lopez, interviewed the hotel manager, so Lopez could not
testify whether the hotel manager was asked about his knowledge of Lloyd’s consent.
(Id. 62:18–63:12) Further, Lopez and Anderson believed, (apparently mistakenly) that
Lloyd was cooperating with the Government because police had arrested Lloyd but
the prosecutor had not charged Lloyd with a crime. (Id. at 48:4–9) Lopez concedes
that he did not investigate this belief and admits that it was solely a “hunch.” (Id. at
66:2–10)
After the denial of the suppression motion, Lopez claimed that he still did not
think that Lloyd would be a helpful witness to Dasinger’s case. (Id. at 68:14–17)
However, Lopez testified that an individual who represented himself to be Lloyd
contacted his office “either four or five days prior to the trial” and indicated that he
never consented to a search of either room that he had rented at the hotel. (Id. at
48:20–49:20) At this point, Lopez believed Lloyd could be an important and beneficial
13
witness to Dasinger’s case. (Id. at 69:17–23) Lopez testified that he told Lloyd over the
phone that a private investigator would “probably” be contacting him, and Lloyd
indicated that he understood. (Id. at 50:8–12) Lopez also told Lloyd that “he may
receive a subpoena and that he may be directed to show up in court for this trial.” (Id.
at 51:3–5) Lopez did not document Lloyd’s address during this call, but Lopez said he
“was going to have [his] investigator call [Lloyd] and get all his information.” (Id. at
70:4–11)
According to Lopez, immediately after speaking with Lloyd, he contacted
private investigator Lee, provided Lee with Lloyd’s phone number, and asked Lee to
contact Lloyd. (Id. at 49:23–50:7) Lopez also testified that after their initial discussion,
he personally called Lloyd “a number of times and there was no answer.” (Id. at
51:6–7) Lopez also “sent several e-mails” to Lee explaining the issues in the case and
what topics he wanted Lloyd interviewed about, so that Lopez could get Lloyd’s
“written statement tied down.” (Id. at 51:8–11) Lopez testified that he e-mailed Lee
over the course of the weekend before trial and Lee indicated he could not get in
contact with Lloyd. (Id. at 51:12–15)
Lopez testified that he was not sure what else he or Lee could have done to
locate Lloyd in the short window of time that they had. (Id. at 72:16–73:9) He
conceded, however, that he could have had Lee run a background check on Lloyd to
find his telephone number, address, and other information, but he is not aware of Lee
doing that in this case. (Id. at 71:2–14) In addition to calling Lloyd directly and having
his investigator reach out by phone, Lopez also filed a motion for continuance and
14
rehearing, which was denied, and he advised the Court the morning of trial about his
efforts to contact Lloyd. (Id. at 51:17–53:8) Lopez testified that he called Lloyd
approximately ten to fifteen times after their initial conversation with no response and
he attempted to get Lee to contact with Lloyd. (Id. at 53:2–8) Lopez did not recall
asking Dasinger’s father how to contact Lloyd, though he discussed the case
“extensively” with him during the course of his representation. (Id. at 53:15–21;
79:13–18)
Regarding his efforts during plea negotiations, Lopez testified that he told
Dasinger as early as their first meeting that she faced a potential mandatory minimum
sentence of life imprisonment. (Id. at 55:13–16) He stated that he discussed this
potential penalty with Dasinger “every time [he] met with her” prior to filing the
motion to suppress, and “it was always part of the decision of whether or not to file
the motion to suppress.” (Id. at 55:19–23) Lopez testified that even after he explained
to her that the plea deal would likely not be on the table if they went forward with the
motion to suppress and were unsuccessful, Dasinger was “very adamant” from the
inception of the case that law enforcement had violated her Fourth Amendment rights.
(Id. at 56:6–17) Lopez testified that he advised Dasinger that she had a very viable
motion to suppress, but this advice was tempered “with the knowledge that because of
her four prior qualifying felonies that she — the Court would have no discretion but
to sentence her to life . . . .” (Id.)
Lopez further testified that after the denial of the suppression motion, the
Government offered to withdraw one of the enhancements under Section 851 based
15
on a prior drug conviction and offer a 20-year minimum mandatory, which he
discussed with Dasinger as well. (Id. at 57:3–10) Lopez testified that Dasinger advised
“right away [that] she wasn’t interested” because she wanted to preserve her right to
appeal the motion to suppress, and, even though counsel advised her that she might
be able to get back towards what he viewed was her proper guideline by cooperating,
she did not want to cooperate either. (Id. at 57:14–17)
C.
Supplemental Evidence
The Court stayed its ruling on the § 2255 motion pending further review of the
evidence and directed that the Parties attempt to subpoena telephone and email
records to corroborate the conflicting testimony from Lloyd and Lopez. (Id. at
110:9–115:3) Thereafter, Dasinger submitted supplemental evidence in support of her
motion. (Civ. Doc. 17) Dasinger indicated that she subpoenaed the records for four
telephone numbers from Boost Mobile, one for Dasinger’s friend Eugene and three for
Dasinger’s father. (Civ. Doc. 17 at 2–3) The records could not be obtained, however,
due to the passage of time. (Civ. Doc. 17-2) Dasinger also subpoenaed the records for
one number from the Tracfone associated with Lloyd’s cousin Josh. (Civ. Doc. 17 at
4) These records did not reveal any calls made to either Lopez’s office or cell phone
number. (Civ. Doc. 17-4) However, the report for these records states that “[c]alls that
are less than 15 seconds will not normally appear on the calls records.” (Civ. Doc.
17-3) Thus, Dasinger contends that “it cannot be said that phone calls were not made
from this phone number because calls less than 15 seconds, which would be the case
if no one answered as alleged in this case, would not show up.” (Civ. Doc. 17 at 4)
16
Finally, Dasinger subpoenaed phone records from AT&T associated with one
additional number for Dasinger’s father during the relevant time. (Id. at 5) These
records did not reveal any calls made to either Lopez’s office or cell phone number.
(Civ. Doc. 17-6) However, because the AT&T number was not the only phone number
for Dasinger’s father, this evidence neither corroborates nor refutes any testimony
from the hearing.
Dasinger also requested that the Court review, in camera, Attorney Lopez’s CJA
voucher from this case. (Civ. Doc. 17 at 5–6) The Court has done so, and that review
has revealed five relevant time entries. 3 The first pertinent entry is from September 10,
2014, at which Lopez records that he billed .2 hours for “Telephone conversation with
Private Investigator Patrick Lee about interviewing possible defense witness.” There
are three relevant entries on September 11, 2014: (i) .2 hours for “Telephone
conversation with potential defense witness James Lloyd,” (ii) .1 hours for “Telephone
conversation with Private Investigator Patrick Lee about possible interview with
possible defense witness James Lloyd,” and (iii) .1 hours for “Review email from
Private Investigator Patrick Lee advising that possible defense witness James Lloyd
cannot be contacted.” There is one relevant entry on September 12, 2014, the day that
The Court attaches the CJA voucher to this Order. A Defendant waives attorney-client and
work product privileges to the extent necessary to address an ineffective assistance of counsel
claim. See Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001) (“[A] party waives its
attorney-client privilege when it injects into this litigation an issue that requires testimony
from its attorneys or testimony concerning the reasonableness of its attorneys’ conduct.”
(citation omitted)).
3
17
Lopez filed the Motion to Continue and for Rehearing on the Motion to Suppress. On
this day, Lopez billed .1 hours for “Left telephonic message for possible defense
witness James Lloyd.” There are no further entries that mention Lloyd or Lee.
The Government also filed a Notice indicating that it attempted to secure
Lopez’s phone records, but they could not be obtained due to the passage of time. (Civ.
Doc. 18) However, the Government did attach as supplemental evidence “the only
email traffic maintained by Mr. Lopez relevant to the instant concerns.” (Id.) This
evidence consists of three brief emails between Lopez and Lee, all occurring on
September 11, 2014. The first email from Lopez to Lee states:
Patrick,
Here is the police report or at least the part that is pertinent
to our issue. I just spoke with Mr. Lloyd and he is willing to
give a statement to you. He is awaiting your call.
(Civ. Doc. 18-2) Lopez provided Lee a number. (Id.) Notably, Dasinger’s postconviction counsel was unable to identify and submit records for this number. (See Civ.
Doc. 17) The second email from Lee to Lopez states:
Ray,
I have called this number 3 times, it goes to voice mail
automatically. I have also sent him a text asking him to call
me as soon as possible. I am not sure if he is at work and
cannot call me back. I will wait again until early evening
and attempt him again. I just wanted to keep you abreast of
the situation.
(Civ. Doc. 18-2) The third and final email from Lopez to Lee at 9:03 P.M. states:
Patrick,
18
I just tried both different numbers since originally he gave
out a wrong number and got voicemail on each as well. Oh
well . . . . we’ll see what happens tomorrow. Thanks for
trying. At the very least maybe we have begun a new
business relationship. LOL.
I’ll call you tomorrow if I hear anything.
(Id.) There are no further emails between Lopez and Lee after this exchange.
II.
LEGAL STANDARD – INEFFECTIVE ASSISTANCE OF COUNSEL
In both Grounds of her motion, Dasinger claims ineffective assistance of
counsel. To prevail on this claim, Dasinger must demonstrate that counsel’s
performance was deficient and that she was prejudiced by the deficiency. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, Dasinger
must show that “the identified acts or omissions were outside the wide range of
professional competent assistance.” Id. at 690. “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. “[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. Strickland requires
that “in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” Id.
Dasinger must also demonstrate that counsel’s alleged 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
19
on the judgment.” Id. at 691‒92. To meet this burden, Dasinger 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.
Strickland requires proof of both deficient performance and consequent
prejudice. Id. at 697 (“There 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.”) (citation and internal quotations omitted).
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690‒91.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers
would have done. We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances, as
defense counsel acted at trial . . . . We are not interested in
grading lawyers’ performances; we are interested in whether
the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220‒21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So, omissions
20
are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate,
but only what is constitutionally compelled.’”) (quoting Burger v. Kemp, 483 U.S. 776,
794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to
raise a frivolous claim).
The two-part Strickland inquiry applies with equal force to ineffective assistance
of counsel claims raised regarding the plea process. Hill v. Lockhart, 474 U.S. 52, 59
(1985). The Sixth Amendment guarantee of effective assistance of counsel applies “to
the negotiation and consideration of plea offers that lapse or are rejected.” In re Perez,
682 F.3d 930, 932 (11th Cir. 2012) (citing Missouri v. Frye, 566 U.S. 134, 140 (2012)
and Lafler v. Cooper, 566 U.S. 156, 162 (2012)). To satisfy the prejudice prong of the
Strickland test in the context of plea negotiations, a petitioner must demonstrate a
reasonable probability that: “(1) he would have accepted a plea offer but for counsel’s
ineffective assistance; (2) the plea would have been entered without the prosecution
canceling it or the trial court refusing to accept it; and (3) the plea would have resulted
in a lesser charge or a lower sentence.” Frank v. United States, 522 F. App’x 779, 781
(11th Cir. 2013) (citing Frye, 566 U.S. at 147 and Lafler, 566 U.S. at 163). 4
III.
GROUNDS
On August 7, 2017, Dasinger timely filed the instant motion to vacate, alleging
two cognizable grounds of ineffective assistance of counsel. (Civ. Docs. 1, 2) In
Ground One of her motion, Dasinger alleges that she was deprived of her right to
11th Cir. R. 36-2 (“Although an unpublished opinion is not binding on this court, it is
persuasive authority.”).
4
21
effective assistance of counsel during the plea negotiation process. (Civ. Doc. 2) In
Ground Two, Dasinger alleges that trial counsel rendered ineffective assistance when
he failed to investigate and secure the attendance of Lloyd, a vital witness, at her
suppression hearing and prior to trial. (Id.)
A. Ground One
In Ground One, Dasinger claims that counsel was ineffective by failing to
properly advise her about plea offers that would have substantially reduced her
sentence. (Id. at 10–20) Where a defendant challenges a not-guilty plea based on
ineffective assistance of counsel, she “must show that there is a reasonable probability
that, but for counsel’s errors, [she] would . . . have pleaded guilty and would not have
insisted on going to trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995)
(quotation and alterations omitted). A court need not “address both components of
the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466
U.S. at 697.
1.
Deficient Performance
Dasinger first contends that she was not advised that she would be facing a
mandatory life sentence for an enhancement under Section 851 when she rejected the
Government’s first plea offer of 10 years. (Civ. Docs. 1 at 4; 2 at 10–14) At the time
she was presented with the first offer, Dasinger does not deny that she was aware she
faced a penalty of twenty years to life. (Civ. Doc. 2 at 12) Dasinger contends in her
verified motion that, when the first offer was brought to her, she and Lopez “discussed
how accepting the plea would affect the motion to suppress” and that counsel advised
22
that “if the Petitioner took the plea, she would not be able to file the motion to
suppress.” (Civ. Doc. 1 at 4) She also attests that Lopez advised her that he “felt they
had a good chance of success on the motion.” (Id.) However, Dasinger contends that
she “was not made aware, by trial counsel, that if she rejected the plea offer she would
ultimately be facing a mandatory life sentence if convicted at trial.” (Id.)
The Court finds that Dasinger has failed to meet her heavy burden of
establishing deficient performance with regard to Lopez’s advice related to the first
plea offer. In his affidavit and at the October 9, 2018 evidentiary hearing, Lopez
testified that Dasinger was made aware that she faced a potential mandatory minimum
sentence of life imprisonment on numerous occasions prior to the Government’s filing
its notice of enhancement. (Civ. Doc. 22 at 55:13–23; Civ. Doc. 6-1 at 1–2) This is
supported by a letter sent by Lopez to inform Dasinger about the Government’s notice
of enhancement. (Civ. Doc. 6-1 at 8) Lopez stated that he discussed this potential
mandatory penalty with Dasinger “every time [he] met with her” prior to filing the
motion to suppress, and “it was always part of the decision of whether or not to file
the motion to suppress.” (Civ. Doc. 22 at 55:19–23) Lopez testified that while Dasinger
had what he believed to be a very viable motion to suppress, he tempered his advice
on the suppression issue “with the knowledge that because of her four prior qualifying
felonies that she — the Court would have no discretion but to sentence her to life.”
(Id. at 56:13–17) Dasinger did not contradict this testimony at the hearing, and her
attorney did not cross-examine Lopez on this point. Thus, the Court credits Lopez’s
testimony that he properly advised Dasinger at the time of the first plea offer that the
23
Government might enhance her to a mandatory minimum life . As a result, the Court
finds no error warranting a finding of deficient performance with regard to counsel’s
advice concerning the first plea offer.
Dasinger also contends that Lopez erred by failing to properly advise her
concerning the Government’s second plea offer of 20 years, made after her motion to
suppress was denied and after she had been enhanced to a mandatory life sentence
under 21 U.S.C. § 851. (Id.) She contends that she felt Lopez was “trying to bully her
into accepting the plea without going over any of the details with her” and that Lopez
failed to provide her with a copy of the written agreement. (Id.) She also attests that
she “believed, based on Mr. Lopez’s advice, that they would win the issue regarding
the motion to suppress on appeal” and, thus, accepting the plea was not ideal. (Id.)
Lopez testified that after the denial of the suppression motion, he shifted his
efforts to try to convince the Government to extend to Dasinger another plea offer.
(Civ. Doc. 22 at 80:4–12) The Government extended a second offer and agreed to
waive the mandatory life sentence under Section 841(b)(1)(A) based on the
enhancement for two or more prior felony drug convictions, if Dasinger pleaded guilty
to the possession of methamphetamine count and agreed to an enhancement based on
one prior felony drug conviction. (Doc. 121 at 6:22–7:1) If Dasigner accepted the
second plea offer, she faced a sentence between twenty years of prison and life. See 21
U.S.C. § 841(b)(1)(A) (2013). Lopez discussed this offer with Dasinger prior to her
trial, but he did not have a copy of the written agreement to show her. (Civ. Doc. 22
at 57:20–58:13; Doc. 121 at 7:2–24)
24
Lopez testified that Dasinger’s decision “right away was she wasn’t interested”
because she wanted to preserve her right to appeal the motion to suppress, and even
though counsel advised her that she might receive a significantly reduced sentence if
she cooperated, she refused to enter a plea agreement that waived her right to appeal.
(Civ. Doc. 22 at 57:12–17) In her sworn motion, Dasinger admits that Lopez discussed
the plea with her but contends that Lopez was “trying to bully” her into accepting the
plea without going over the details. (Civ. Doc. 1 at 4) However, on the morning of
trial, the Court allowed Dasinger to review and discuss the written agreement with
Lopez. (Doc. 121 at 18:23–19:4) At that time, the Government had not withdrawn the
plea. (Doc. 121 at 28:9–30:22) As such, the Court finds that Dasinger had a sufficient
opportunity to consider the terms of the second plea offer.
Dasinger also alleges in her verified § 2255 motion that she “believed, based on
Mr. Lopez’s advice, that they would win the issue regarding the motion to suppress
on appeal” and accepting the second plea offer would not allow her to appeal that
issue. (Civ. Doc. 1 at 5) However, she does not elaborate on what advice caused this
belief. (Id.) “[T]here is a difference between expressing optimism about a defendant’s
chances at trial [or on appeal] and guaranteeing that the defendant will win.” Teers v.
United States, 739 F. App’x 960, 966–67 (11th Cir. 2018) (finding insufficient evidence
of counsel’s defective performance when counsel allegedly advised defendant that he
had a 70 to 80 percent chance of winning at trial); c.f. Lafler, 566 U.S. at 163 (“In this
case all parties agree the performance of respondent’s counsel was deficient when he
25
advised respondent to reject the plea offer on the grounds he could not be convicted
at trial.”) (emphasis added).
In her unsworn memorandum, Dasinger states that she “was advised that she
would win [the suppression] issue on appeal,” and that had she “known that success
was not a guarantee,” she would have accepted the plea. (Civ. Doc. 2 at 16) However,
these unsworn statements are not evidence, there is no evidence in the record to
support that Lopez guaranteed her a win, and this assertion is affirmatively
contradicted by Lopez’s sworn statement that he advised Dasinger “on numerous
occasions that he has seen very few favorable decisions from the Eleventh Circuit” on
similar motions to suppress. (Civ. Doc. 6-1 at 4); Travaglio v. Am. Express Co., 735 F.3d
1266, 1269 (11th Cir. 2013) (“[A] sentence in an unsworn brief is not evidence.”).
Thus, as no record evidence supports that Lopez advised Dasinger she would win her
suppression motion on appeal, there is no basis to find deficient performance in this
regard.
Finally, Dasinger cites to United States v. Correa, Nos. 1:07-cr-11-RH-GRJ and
1:12-cv-61-RH-GRJ, 2014 WL 5148214 (N.D. Fla. 2014), a case in which the court
found that it was error for counsel to advise a defendant that he could only preserve
his right to challenge an unfavorable suppression order by proceeding to trial. (Civ.
Doc. 2 at 16–17) In Correa, the court found that this advice was “probably wrong”
because a defendant may enter a conditional plea with the Government’s consent, and
there was no reason to believe the Government would not have consented in that case.
2014 WL 5148214 at *1. Dasinger states in her memorandum that, like the defendant
26
in Correa, she was also “told that she could only preserve her motion to suppress by
proceeding to trial.” (Civ. Doc. 2 at 17) Again, this factual assertion is unsupported by
any sworn statement or other evidence. Moreover, Lopez attests that he asked the
Government “about the possibility of a conditional plea allowing [Dasinger] to appeal
the denial of the Motion to Suppress but this was never offered.” (Civ. Doc. 6-1 at 4)
Thus, absent any evidence that Dasinger was similarly advised, and given the
uncontested evidence that the Government would not have consented to a conditional
plea in this case, Correa is inapposite.
2.
Prejudice
Even assuming that counsel’s performance was deficient, Dasinger cannot
satisfy the prejudice prong of the Strickland test. To establish this prong, Dasinger must
present some objectively credible evidence demonstrating that but for counsel’s alleged
advice or inaction, she would have accepted the plea offers. A petitioner’s after-thefact testimony concerning the desire to enter a plea, without more, is insufficient to
establish prejudice. Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991). Dasinger
points to (i) the lack of evidence that she repeatedly insisted on proceeding to trial or
made protestations of innocence pre- or post-trial, (ii) the Government’s substantially
strong evidence supporting a guilty verdict at trial, and (iii) the disparity between her
ultimate sentence and the sentences contained in the plea offers.
However, the record belies Dasinger’s contention that she would have accepted
the plea offers. While Dasinger is correct that she did not profess her innocence or
desire to go to trial, she did vehemently and repeatedly assert that law enforcement
27
violated her Fourth Amendment constitutional rights. She did so (i) in her hotly
contested motion to suppress and at the evidentiary hearing, (ii) in her motion for
rehearing on the motion to suppress, (iii) when she renewed her motion to suppress at
the conclusion of the Government’s case-in-chief at trial, and (iv) when she raised the
Fourth Amendment issue on appeal. Lopez swore in his affidavit and testified at the
hearing that Dasinger was always adamant that law enforcement had violated her
Fourth Amendment rights and that Dasinger rejected the plea offers for that reason.
(Civ. Doc. at 56:6–17, 57:12–17; Civ. Doc. 6-1 at 2–4)
Also, as explained above, Dasinger rejected the Government’s first offer to
avoid the mandatory life sentence and to instead face a sentence of ten years of prison
to life. Dasinger rejected the Government’s second offer to avoid the mandatory life
sentence and to instead face a sentence of twenty years of prison to life. Dasinger’s
rejection of these two extremely favorable offers and her willingness to risk a
mandatory life sentence at trial further demonstrate that, even if trial counsel had not
deficiently performed, Dasinger would have still insisted on going to trial.
Lastly, on the morning of trial, the Court conducted a colloquy with Dasinger
about the second plea offer. Dasinger, under oath, first wavered about whether she
would accept the second plea offer (Doc. 121 at 9–10):
[Court:]
Ms. Dasinger, did you see the plea
agreement that proposed that you be
subject to a ten-year minimum
mandatory sentence?
[Dasinger:]
Yes, ma’am.
28
[Court:]
And did Mr. Lopez explain to you that
the new proposal the Government was
making would be that you would face
the same benefits and detriments as the
other plea agreement except that you
would be subject now to a twenty-year
minimum mandatory?
[Dasinger:]
Yes, ma’am.
[Court:]
Did you understand all of the terms of
the original plea agreement with the
ten-year mandatory minimum?
[Dasinger:]
Yes, ma’am.
[Court:]
And did you reject that plea agreement
at that time?
[Dasinger:]
Yes, ma’am.
[Court:]
And so if Mr. Lopez tells you that the
agreement is the same except that you
now face a twenty-year mandatory
minimum, do you need to see that in
order to make a decision about what
you want to do?
[Dasinger:]
Yes, ma’am.
[Court:]
Is it your suggestion that if it’s the same
as the original one except that now it’s
a twenty-year mandatory minimum,
that you would have accepted that plea
agreement?
[Dasinger:]
I would have thought about it after
going over it with him as well.
29
After the Court provided Dasinger and Lopez additional time to review the
written agreement memorializing the second plea offer, Dasinger, under oath,
knowingly and voluntarily rejected the offer (Doc. 121 at 28–30):
[Court:]
All right. Ms. Dasinger, reminding you
that you’re under oath, you’ve had an
opportunity to review the plea
agreement?
[Dasinger:]
Yes, ma’am.
[Court:]
Was it explained to you by your lawyer?
[Dasinger:]
Yes, ma’am.
[Court:]
Do you understand the terms of the plea
agreement?
[Dasinger:]
Yes, ma’am.
[Court:]
Do you feel you had a full opportunity
to consider it and make an informed
decision about how you wish to
proceed?
[Dasinger:]
Yes, ma’am.
[Court:]
And how do you wish to proceed?
[Dasinger:]
I’m not signing it.
[Court:]
Is anyone threatening you to get you to
not sign it?
[Dasinger:]
No, ma’am.
[Court:]
Has anyone promised you anything to
get you not to sign it?
[Dasinger:]
No, ma’am.
30
[Court:]
You understand that if you’re convicted
in this case, you will face a mandatory
life term of incarceration?
[Dasinger:]
Yes, ma’am.
[Court:]
And if you sign the plea agreement, you
would face a twenty-year mandatory
minimum?
[Dasinger:]
Yes, ma’am.
[Court:]
And you also understand that your
lawyer does not intend to call any
witnesses on your behalf?
[Dasinger:]
Yes, ma’am.
[Court:]
And still you wish not to plead guilty?
[Dasinger:]
I mean I ain’t got no — I asked him to
call witnesses, so what can I say on
that?
[Court:]
You mean Mr. Lloyd?
[Dasinger:]
Yes, ma’am.
[Court:]
But Mr. Lloyd would only be here to
testify on the motion to suppress. Mr.
Lloyd would not vindicate you on the
items found in the car. You understand
that?
[Dasinger:]
Yes, ma’am.
[Court:]
This is a very serious decision you’re
making here, Ms. Dasinger, and the
Court does not want you to say, well, I
didn’t get an opportunity to consider
this, I made this decision under any
kind of duress or stress. You’re making
this decision voluntarily, is that correct?
31
[Dasinger:]
Yes, ma’am. Is there anyway I can have
a few days to think about this or no?
[Court:]
Not at this point. The Court has given
you an opportunity to consider the plea,
the Government has proposed a plea. I
can’t make the Government hold out
the plea indefinitely for you in
connection with this matter. And we
have a jury downstairs who is prepared
to consider this case. I don’t know if the
Government is willing to hold out any
hope on this plea agreement after the
jury is selected or not. Mr. Preston?
[Prosecutor:]
Judge, the Court’s colloquy was
sufficient. The Government’s offer
expired last week and the additional
opportunity was something I was
willing to go along with, but that plea
agreement has now dissolved.
Thus, Dasinger’s contention that she would have accepted these plea offers but
for counsel’s alleged deficient performance is unpersuasive. As such, the Court does
not find either deficient performance or prejudice, and Dasinger’s claim of ineffective
assistance as it pertains to the plea negotiations is without merit.
B.
Ground Two
In Ground Two of her motion, Dasinger claims ineffective assistance of counsel
premised on Lopez’s failure both before and after the suppression hearing to locate
and subpoena Lloyd to testify on her behalf regarding the issue of consent. (Civ. Doc.
1 at 6–8)
32
1.
Deficient Performance
Dasinger’s claim of ineffectiveness stems from Lopez’s decision to limit the
scope of his investigation into potentially favorable evidence. “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. “[A] particular decision not
to investigate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” Id. “The relevant
question is not whether counsel’s choices were strategic, but whether they were
reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); see also Mitchell v. Kemp, 762
F.2d 886, 888 (11th Cir. 1985) (“A criminal attorney has the duty to investigate, but
the scope of investigation is governed by a reasonableness standard.”).
Dasinger’s argument concerning the reasonableness of counsel’s investigation
into Lloyd can be divided into two key time frames: (i) the period leading up to
Dasinger’s suppression hearing; and (ii) the period after the Court’s Order denying the
motion to suppress and leading up to trial. The Court addresses Lopez’s conduct
during each time frame respectively to determine if, consistent with Strickland, his
failure to investigate or locate Lloyd was reasonable in the light of all the
circumstances. Strickland, 466 U.S. at 688.
a.
Period Leading Up to the Suppression Hearing
33
The Court first examines whether Lopez was deficient for failing to investigate
the viability of Lloyd as a witness leading up the suppression hearing. Strickland, 466
U.S. at 691, explains:
The reasonableness of counsel’s actions may be determined
or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually based,
quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In
particular, what investigation decisions are reasonable
depends critically on such information.
At the evidentiary hearing, Dasinger testified that she and Lopez discussed Lloyd as a
possible witness. She is also adamant that she made Lopez aware that Lloyd “would
be willing to come to Court and testify on [her] behalf” at the suppression hearing, but
Lopez said “he had it under control with just the hotel manager” and “didn’t need”
Lloyd. (Civ. Doc. 22 at 40:23–25, 41:24–42:3) Lopez admits that he and Dasinger
discussed Lloyd as a possible witness and that he never made any effort to find Lloyd
prior to the suppression hearing. (Id. at 46:16–23, 67:17–20) Lopez’s explanation for
his failure to investigate Lloyd as a witness is that both he and Anderson, the
co-defendant’s counsel, believed that Lloyd was cooperating with the Government
“since [Lloyd] had been arrested for drug dealing and was never charged.” (Civ. Doc.
6-1 at 5) Lopez concedes that this belief was just a “hunch” and that neither he nor the
co-defendant’s counsel took any steps to confirm or dispel this belief. (Civ. Doc. 22 at
66:2–10) However, Lopez testified that, based solely on this hunch, he made a strategic
decision to call only the hotel manager to testify, since this testimony bolstered
34
Dasinger’s claim regarding the manner in which law enforcement entered her hotel
room and contradicted that of Trooper Hartzig. (Id. at 47:19–48:12)
The Court finds that the initial thinking to forgo any investigation into Lloyd
and focus on the hotel manager as the defense’s key witness was reasonable at the time
that counsel filed the motion to suppress, as counsel had no reason to know that
Lloyd’s alleged third-party consent would be the principal basis for the Government’s
opposition to the motion. However, the decision not to investigate Lloyd as a witness
became unreasonable after the Government filed its response to the suppression
motion.
Once the Government filed its response, Lopez’s need to investigate Lloyd was
heightened because the Government contended as its principal defense to the motion
that Lloyd, a co-tenant, gave law enforcement consent to search the hotel room (Doc.
40 at 2–6):
In this case, the troopers received adequate consent to
search the hotel room by Lloyd, the renter of the room. The
troopers reasonably believed that Lloyd possessed the
authority to grant permission to search the room because
the room was registered to him and paid for by him.
Furthermore, the Defendant did not object to the search
when the troopers came to the door and even invited the
troopers in after they had told her that Lloyd had consented.
The defendant’s lack of protest and invitation into the room
reveals her understanding of Lloyd’s authority over the
room. Her invitation into the room also supports the
troopers’ reasonable belief and understanding that Lloyd
had authority to consent to a search of the hotel room.
Through both the invitation of the defendant to come into
the room and the consent of Lloyd, it is clear that a man of
reasonable caution would believe that Lloyd had the
authority to grant consent to search the premises.
35
Neither Patterson nor the defendant objected to the
troopers’ search when the troopers told them that Lloyd had
consented and Patterson even admitted at the time that he
did have illegal drugs in the room. It is clear that the
troopers acted in good faith on Lloyd’s consent when they
searched the hotel room, having the reasonable belief that
he had the authority to grant consent to search.
At the evidentiary hearing, Lopez acknowledged that at this point, Lloyd’s
testimony, if favorable, would be important to Dasinger’s case, testifying thusly:
[PCR counsel:]
So on that same kind of [notion], if the
Government’s, in their response, main
argument was that the search of Ms.
Dasinger’s room was legal because a
co-tenant, Mr. Lloyd, had consented to
the search, would you agree that would
have been something important to look
into?
[Lopez:]
If that had — if the Government had
indicated that it was okay to search both
rooms, we may have looked into it, yes.
[PCR counsel:]
And the reason I ask that is because
would you agree that whether or not
Mr. Lloyd consented to the rooms
would have essentially been — if that
question had been answered negatively,
that would have ended the entire
analysis of every other option that came
after that, if that’s what the
Government was relying on?
[Lopez:]
Well, it — what it would have done is it
would have provided another witness,
and the Court would have had to
resolve the — I guess the conflicts in
what the witnesses were saying,
because the police, of course, were
never saying that Mr. Lloyd did not
36
consent, they were saying that he
consented.
[PCR counsel:]
Correct.
(Civ. Doc. 22 at 64:13–65:8)
Lopez conceded that he had no knowledge of whether his only other witness,
the hotel manager, would be able to testify regarding Lloyd’s consent, or lack thereof,
to the search of the rooms because he did not even interview the hotel manager on
which his entire defense rested — counsel for Dasinger’s co-defendant did.
[PCR counsel:]
Now, would you agree, if you recall, the
hotel manager did not have any
information about any type of consent
from Mr. Lloyd?
[Lopez:]
I believe that Mr. Lloyd — the
information that we received was that
Mr. Lloyd consented when he was
being detained or arrested, when he got
stopped in his car, so I don’t know if the
hotel manager testified whether he
would have been privy to that or not.
...
[PCR counsel:]
But regardless of whose room first,
whatever happened before the hotel
manager got there, he did not know,
obviously, if Mr. Lloyd had consented
or not?
[Lopez:]
I can’t recall specifically if he did or not.
[PCR counsel:]
Now, in terms of —
[Court:]
Well, when you talked to the hotel
manager in preparation for his
testimony, did he tell you he knew
37
anything about whether Mr. Lloyd did
or didn’t give consent?
[Lopez:]
If he would have said that — I don’t
believe he did, because if he would have
said that, that would have made me
think that maybe we need to try to get a
hold of Mr. Lloyd.
[Court:]
Did you talk to the hotel manager after
the Government’s response was filed?
[Lopez:]
I believe that myself or [counsel for the
co-defendant] had, yes.
[Court:]
And did somebody ask him about what
knowledge he had of Mr. Lloyd having
consented or not having consented?
[Lopez:]
I do not recall. [Counsel for the codefendant] was the one that located the
hotel manager and [counsel for the codefendant] was the one that had
everything about what Mr. — about
what he was going to testify to.
[Court:]
So did you meet with the hotel manager
about the hearing?
[Lopez:]
I don’t recall meeting with him. I recall
meeting with [counsel for the
co-defendant] and going over what he
was going to say.
[Court:]
So you don’t know what the hotel
manager was going to say of your own
work, only what [counsel for the
co-defendant] said the hotel manager
was going to say?
[Lopez:]
Correct.
38
[Court:]
And you don’t know what [counsel for
the co-defendant] asked of the hotel
manager about Mr. Lloyd?
[Lopez:]
No. I just know what I discussed with
[counsel for the co-defendant] about
Mr. Lloyd.
[Court:]
But neither you nor [counsel for the
co-defendant] had any information
about Mr. Lloyd other than that he had
been arrested and he had not been
charged?
[Lopez:]
Yes.
(Id. at 61:12–19, 62:1–63:16)
Relying solely on information from co-defendant’s counsel about whether the
hotel manager could provide Dasinger with favorable testimony on the issue of Lloyd’s
consent (which it appears he could not), and despite knowing that this issue would be
a key hurdle to prevailing on the suppression motion based on the Government’s
response, and despite Dasinger’s insistence that Lloyd would be a favorable witness,
Lopez made no attempt to locate and investigate Lloyd. Under these circumstances,
the decision not to investigate Lloyd cannot be said to be a reasonable, strategic
decision made as part of a calculated trial strategy. Lopez “did not choose, strategically
or otherwise, to pursue one line of defense over another. Instead, [he] simply abdicated
his responsibility to advocate his client’s cause.” Nealy v. Cabana, 764 F.2d 1173, 1178
(5th Cir. 1985) (italics in original). At the evidentiary hearing, the Court indicated that
one could argue Lopez’s unsupported “hunch” was somewhat bolstered by the
Government’s response, as the Government would be unlikely to hang its entire
39
defensive strategy on a non-cooperative witness. (Civ. Doc. 22 at 108:6–13) However,
given the obvious import of the consent issue to resolution of the suppression motion
as highlighted by the Government’s response, the Court finds that no reasonable
counsel would have continued to rely on the “hunch” that Lloyd was a cooperating
witness and refused to investigate further.
The “[i]nformed evaluation of potential defenses to criminal charges” is a
cornerstone of effective assistance of counsel. Mitchell, 762 F.2d at 889 (quoting Gaines
v. Hopper, 575 F.2d 1147, 1149–50 (5th Cir. 1978) 5). While “‘strategy’ can include a
decision not to investigate . . . [and] a lawyer can make a reasonable decision that no
matter what an investigation might produce, he wants to steer clear of a certain
course,” Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994), the decision to forgo any
investigation must be reasonable. See Strickland, 466 U.S. at 690–91 (“[S]trategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.”); Green v. Nelson, 595 F.3d 1245, 1251 (11th Cir. 2010) (“[T]he Supreme
Court has explained that decisions that are based on mistaken beliefs certainly are
neither strategic nor tactical. . . . Rather, strategic decisions are ones that, among other
things, involve a weighing of competing positive and negative consequences that may
flow to the defendant from a particular choice.”). “When a defense counsel fails to
investigate his client’s only possible defense, although requested to do so by him; and
5 Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (adopting as binding
precedent all decisions of the former Fifth Circuit issued on or before September 30, 1981).
40
fails to subpoena witnesses in support of the defense, it can hardly be said that the
defendant has had the effective assistance of counsel.” Gomez v. Beto, 462 F.2d 596,
597 (5th Cir. 1972). Moreover, “counsel’s anticipation of what a potential witness
would say does not excuse the failure to find out.” Code v. Montgomery, 799 F.2d 1481,
1484 (11th Cir. 1986) (quoting United States v. Moore, 554 F.2d 1086, 1093 (D.C. Cir.
1976)).
Here, the Court finds that Lopez’s decision, strategic or otherwise, not to
investigate Lloyd was wholly unreasonable. Lopez knew how important Lloyd’s
testimony was. He knew that if it was favorable to Dasinger’s case it could assist in
exonerating her on a charge for which she faced a mandatory life sentence. He knew
that Dasinger’s only real defense was to successfully suppress the evidence she
contends was illegally obtained. Under these circumstances, no reasonable counsel
would have relied on the unverified, inaccurate hunch that Lloyd was cooperating
with the Government to elect not to attempt to locate Lloyd and not to even consider
him as a witness. Rogers, 13 F.3d at 386; see also Gomez, 462 F.2d 596, 597 (finding that
counsel was ineffective for failing to make any effort to investigate alibi witnesses
identified by the defendant who was facing a mandatory life sentence if convicted).
b.
Period After the Court Issued its Suppression Order
After the Court issued its Order denying the motion to suppress, it became
abundantly clear that Lloyd’s testimony was critical to the suppression issue. (Doc.
59) The Court did not have to resolve the factual dispute arising from the law officers’
and hotel manager’s testimony — the dispute on which Lopez’s entire suppression
41
strategy rested — because the undisputed evidence of Lloyd’s consent to the search
ended the inquiry (Doc. 59 at 8–10) (footnotes omitted):
Here, there is no doubt that Lloyd was authorized to
consent to a search of Room 258. The room was rented in
his name, he paid for it, and he could have entered and used
the room if he so chose. Consequently, his consent to search
Room 258 was valid pursuant to Matlock 6. The troopers
were legally permitted to enter and search Room 258 unless
either of the defendants, as the co-tenants occupying the
room, objected to any such search.
Defendants were not present when Lloyd consented to the
search of Room 258, nor did he accompany Troopers
Hartzig and Rios when they went to search the room.
Defendants therefore could not have objected to the search
in Lloyd’s presence. The troopers’ account of events
suggests that they knocked on the door and Dasinger invited
them into the room. Dasinger’s account drawn from the
inference of the manager’s testimony suggests that the
troopers “barged in” after [the hotel owner] swiped his key
to grant them entry into the room. In either case, their entry
would have been legal, as Lloyd had authorized the search
of the room.
More importantly, there is no evidence to controvert the
troopers’ testimony that when they first encountered
Defendants, Trooper Hartzig informed them that Lloyd had
consented to a search of the room. The dispute concerning
whether the hotel had proposed to refund Lloyd’s deposit to
the room as Trooper Hartzig advised Defendants is of no
moment because it is undisputed that Lloyd had consented
to the search of the room. Learning of this, Defendants did
not offer any evidence establishing that either of them orally
or physically objected to the troopers’ presence in the room.
Based on the Eleventh Circuit’s narrow reading of the
Randolph 7 exception, Lloyd’s consent to a search of the
room could be invalidated only by the affirmative objection
of one of both of the Defendants. Because there is no
6
7
United States v. Matlock, 415 U.S. 164 (1974).
Georgia v. Randolph, 547 U.S. 103 (2006).
42
evidence that the Defendants lodged any such objection, the
Court finds that Lloyd’s consent was valid, and the
troopers’ warrantless entry into Room 258, however
accomplished, was not a violation of Defendants’ Fourth
Amendment rights.
Though Lopez had failed to investigate Lloyd as a witness up to this point, he
still had an opportunity to cure his error, because the suppression issue could have
been resurrected. After her suppression motion was denied, Dasinger persisted in her
attempts to get into contact with Lloyd and also tried to get Lloyd in touch with Lopez.
(Civ. Doc. 22 at 41:9–18) Dasinger’s father went to Lloyd’s home to try to facilitate
communication between Lloyd and Lopez before the trial. (Id. at 35:7– 36:5) However,
Lopez continued to overlook Lloyd’s potential as an important witness even after the
Court entered its Order. (Id. at 78:22–79:7)
In light of the Government’s strong evidence of guilt and the mandatory life
sentence that Dasinger faced upon conviction, a renewal of the suppression issue
would appear to have been Dasinger’s best chance at relief outside of a plea deal; thus,
the Court finds that, under these circumstances, no reasonable counsel would have
continued to forgo any investigation into Lloyd at this time. Rogers, 13 F.3d at 386.
The Court acknowledges that the period between the entry of the suppression Order
and Dasinger’s trial was brief — 11 days to be exact. The Court further acknowledges
that counsel did make some attempt to locate Lloyd during this time and also
requested that the Court continue the trial so that he could have more time to find
Lloyd, which request was denied. However, counsel did not even begin to search for
43
Lloyd until roughly five days before trial, (Doc. 65), and when he did so, his search
was wholly inadequate in light of the circumstances.
Lopez testified that, approximately five days before trial, he spoke to an
individual by telephone who represented himself to be Lloyd and who advised that he
never gave consent to law enforcement to search the hotel room Dasinger occupied.
(Civ. Doc. 22 at 49:12–20) After this conversation, Lopez believed Lloyd to be an
important witness to Dasinger’s case and wanted to speak with him further. (Id. at
69:13–23, 76:6–16) At this time Lopez, now faced with direct knowledge that his
hunch was incorrect, finally began a search for Lloyd. (Id. at 69:17–25) However, as
previously mentioned, the steps that Lopez took to locate Lloyd were entirely
insufficient given the import of Lloyd’s purported testimony to the suppression issue.
Lopez’s only actions pertaining to this issue were as follows: (i) Lopez called
Lloyd once 8, (ii) Lopez had an investigator call Lloyd numerous times, and (iii) Lopez
raised the issue with the Court by filing a motion to continue and for rehearing on the
motion to suppress, which the Court denied. (Id. at 49:21–53:8) The Court’s denial of
the motion did not end the issue, because the Court specifically stated that if Lopez
could produce Lloyd by the first day of trial, it would hear Lloyd’s testimony. (Doc.
66) At this point, Lopez had three days left to procure Lloyd.
Though Lopez testified that he called Lloyd approximately ten to fifteen times after their
initial conversation, the CJA records reflect that Lopez only billed .1 hours for “Left
telephonic message for possible defense witness James Lloyd.”
8
44
If all of Lopez’s testimony about his actions is credited, Lopez did nothing other
than attempt to call and have his investigator attempt to call Lloyd during these three
crucial days. Lopez testified that Dasinger told him she did not know how to contact
Lloyd, and Dasinger testified, conflictingly, that she told him she did know how to
contact Lloyd. The Court credits Dasinger’s testimony on this point, especially in light
of the testimony from both Dasinger’s father and Lloyd that they were in contact and
had met in person at Lloyd’s residence to speak about the case.
Lopez did not ask Dasinger how to find Lloyd, and he did not ask Dasinger’s
father, who had been to Lloyd’s home and knew where he lived, how to find Lloyd.
And setting aside the fact that Dasinger’s father knew where Lloyd lived because he
had been to his home, it does not appear that Lloyd would have been otherwise
difficult to locate — he had been residing in the same place for seven years and had
family members living “up and down” the street from him. 9 Lloyd also testified
credibly that he made consistent efforts to contact Lopez when he unsuccessfully called
Lopez’s firm from various phones on several occasions and left at least one message.
Lloyd also declared under penalty of perjury that he had been available and willing to
testify on Dasinger’s behalf, which he did do at the October 9, 2018 hearing. Thus,
Lloyd testified that, at the time of Dasinger’s trial, he lived at 38849 Chase Street in Dade
City, Florida. (Civ. Doc. 22 at 21) Judicially noticed records from Lloyd’s state criminal case,
arising from his arrest at the hotel on October 8, 2013, contain a police report that identifies
Lloyd’s address as 38849 Chase Street, Dade City, Florida, 33523. Fed. R. Evid. 201. The
clerk docketed the police report on October 9, 2013 on the state court’s public website. See
State v. Lloyd, No. 13-CF-1885 (Fla. 5th Jud. Cir.), available at https://www.civitekflorida.com
/ocrs/app/caseinformation.xhtml?query=O_d1L_vvMfxQ6ztIadk2bQsiCDjQin6865HLT
WUA3rg&from=partyCaseSummary.
9
45
despite Lopez’s claimed difficulty reaching him by phone, the evidence supports that
Lopez would have easily located Lloyd had he or his investigator done anything more
than unsuccessfully call the same phone numbers. See Code, 799 F.2d at 1484 (holding
that the failure of counsel to investigate potential alibi witnesses when defendant relied
on an alibi defense was ineffective assistance of counsel); Nealy, 764 F.2d at 1173
(holding that when a case came down to a “swearing match,” trial counsel who did
no more to investigate potential alibi witness than call and leave messages for her had
not given effective assistance); Miller v. Singletary, 958 F. Supp. 572, 577 (M.D. Fla.
1997) (holding that counsel’s failure to make further attempts to locate a key witness
was unreasonable when counsel unsuccessfully attempted to serve the witness with a
subpoena and made no further efforts).
The Court tempers its consideration of the reasonableness of Lopez’s efforts to
contact Lloyd during this limited time with the understanding that he was
simultaneously focused on securing and counseling Dasinger on the amended plea
deal and preparing for trial. The Court acknowledges that due to these other pressing
concerns, finding Lloyd would not reasonably have been Lopez’s sole focus in the week
leading up to trial. See Rogers, 13 F.3d at 387 (explaining that the reasonableness
standard “reflects the reality that lawyers do not enjoy the benefit of endless time,
energy or financial resources.”). However, even considering these additional
circumstances, the Court finds that Lopez’s limited efforts during this crucial time to
locate a lynchpin witness — whose testimony counsel knew was instrumental to the
suppression issue and whose testimony the Court had expressly stated it would hear
46
— were unreasonable and constitute deficient performance. This is especially so where
counsel had the benefit of a private investigator who could have been directed to
undertake this crucial task.
2.
Prejudice
Having found that Lopez was deficient in his failure to investigate and locate
Lloyd, the Court further finds that Dasinger was prejudiced by counsel’s errors. As
stated supra, Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697. To establish prejudice, Dasinger 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. Further, “[w]here
defense counsel’s failure to litigate a Fourth Amendment claim competently is the
principal allegation of ineffectiveness, the defendant must also prove that his Fourth
Amendment claim is meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence in order to
demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). See
also Zakrzewski v McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006).
Had Lopez located Lloyd, the record supports that Lloyd’s testimony would
have been favorable to Dasinger. Lloyd testified credibly at the October 9, 2018
evidentiary hearing that he did not consent to law enforcement’s search of the hotel
room in which Dasinger resided. (Civ. Doc. 22 at 13:16–25; 24:17–19) Based on this
testimony and based upon the Court’s rationale in its suppression order, (Doc. 59), the
47
Court finds a reasonable probability that had Lloyd been located and brought forward
to testify at the suppression hearing, the Court would have ruled in favor of Dasinger.
Likewise, had Lloyd been brought forward to testify on the first day of trial, the Court
would have reheard the suppression issue and almost assuredly altered its ruling. See
Code, 799 F.2d at 1484 (finding prejudice when counsel’s failure to secure an alibi
witness effectively deprived defendant of any defense and undermined confidence in
trial outcome); Miller, 958 F. Supp. at 578 (“The failure of Petitioner’s counsel to make
reasonable efforts to find a witness that could have been critical to his defense is
sufficient to undermine confidence in the outcome of Petitioner’s case.”).
Specifically, Lloyd’s testimony regarding his consent would be contested only
by that of Trooper Hartzig, whose credibility was called into question in other respects
at the hearing and conflicted with the testimony of the hotel manager. Hartzig’s
testimony on this issue was not bolstered by that of the other officer at the scene,
Trooper Rios, who did not testify regarding Lloyd’s consent. Though the Court
harbored some concerns about the inconsistency of the testimony at the hearing, the
Court did not have to resolve the discrepancies between the Troopers’ version of events
and the hotel manager’s because Trooper Hartzig’s testimony about Lloyd’s consent
was uncontroverted.
Had the Court chosen to credit Lloyd’s version of events in this swearing match,
the unresolved dispute about whether law enforcement “barged” into Dasinger’s room
or whether Dasinger consented to their entry would be highly relevant, and the Court
cannot say with any confidence it would have resolved those issues in favor of the
48
Government. In fact, had Lloyd presented additional testimony that directly conflicted
with that of the Troopers, their credibility would have been further undermined, such
that the Court would have found the hotel manager’s testimony to be more credible
than the Troopers on the manner of entry into Dasinger’s room. The hotel manager
testified that he swiped his key to open to the door to the hotel room where Dasinger
and Patterson stayed. (Doc. 120 at 13–23) Even though the hotel owner acknowledged
that he was not present when the Troopers entered the room, the Court would have
drawn a reasonable inference that the Troopers did not knock on the unlocked door
and ask Dasinger for permission to enter and instead opened the unlocked door and
entered without permission.
Even if Dasinger consented to the troopers’ entry into the hotel room, Dasinger
did not voluntarily consent. At the suppression hearing, Trooper Rios testified that
Dasinger permitted him and Trooper Hartzig to enter the hotel room after they advised
Dasinger that Lloyd had consented to a search (Doc. 120 at 71): “Well, we asked to
come in and told them we had permission from Mr. Lloyd to search. She said, no
problem, she said, come on in.” Also, Trooper Hartzig testified that Dasinger
permitted them to enter the hotel room after they advised Dasinger that Lloyd had
consented to a search of the room. (Doc. 120 at 18) Trooper Hartzig further testified
that he advised Dasigner that the hotel manager had refunded Lloyd for the cost of
renting the room. (Doc. 120 at 27–29)
The record demonstrates that both statements were false. Lloyd credibly
testified that he did not give the troopers consent to search the hotel room. (Civ. Doc.
49
22 at 13:16–25; 24:17–19) Also, records from the hotel showed that the hotel manager
did not give Lloyd a refund for the room that Dasinger and Patterson occupied. (Doc.
120 at 107–09, 116) Because the troopers falsely told Dasinger that Lloyd had already
consented to a search of the hotel room and falsely told her that the hotel had refunded
Lloyd the cost of the room, Dasinger would have reasonably believed that she no
longer had a right to lawfully remain in the room and no longer had the right to object
to the troopers’ entry. Consequently, Dasinger did not voluntarily consent to the
search. Spivey, 861 F.3d at 1213 (“Because we require ‘that the consent was not a
function of acquiescence to a claim of lawful authority,’ deception invalidates consent
when police claim authority they lack.”) (citation omitted). See, e.g., Bumper v. North
Carolina, 391 U.S. 543, 549–50 (1968) (“A search conducted in reliance upon a warrant
cannot later be justified on the basis of consent if it turns out that the warrant was
invalid. . . . When a law enforcement officer claims authority to search a home under
a warrant, he announces in effect that the occupant has no right to resist the search.
The situation is instinct with coercion — albeit colorably lawful coercion. Where there
is coercion there cannot be consent.”); United States v. Saafir, 754 F.3d 262, 266 (4th
Cir. 2012) (“A search or seizure is unreasonable and therefore unconstitutional if it is
premised on a law enforcement officer’s misstatement of his or her authority”). 10
See also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§8.2(a) (footnotes omitted and emphasis added):
10
The “claim of lawful authority” referred to in Bumper need not
involve mention of a search warrant. It is enough, for example,
that the police incorrectly assert that they have a right to make a
warrantless search under the then existing circumstances, or
50
For purposes of suppression, the Government bore the burden of proving by
preponderance of the evidence that Lloyd consented to the search and the consent was
voluntary. United States v. Matlock, 415 U.S. 164, 177 (1974); United States v. Pineiro,
389 F.3d 1359, 1366 (11th Cir. 2004). The Court finds that Lloyd’s testimony at the
October 9, 2018 hearing was more credible than that of Trooper Hartzig at the
suppression hearing on the issue of consent. The Government would have failed to
carry its burden to show that Lloyd voluntarily consented to the search and, absent
this consent, the motion to suppress would have succeeded.
Because the motion to suppress would have succeeded, all evidence derived
from the illegal search would have been suppressed. Segura v. United States, 468 U.S.
796, 804 (1984) (“Under this Court’s holdings, the exclusionary rule reaches not only
primary evidence obtained as a direct result of an illegal search or seizure, but also
evidence later discovered and found to be derivative of an illegality or ‘fruit of the
poisonous tree.’”) (citations omitted).
Consequently, the two digital scales and small plastic bags under the mattress
in the hotel room, the set of car keys that belonged to the Toyota parked outside the
hotel room, and the methamphetamine, marijuana, cash, and the firearm in the trunk
circumstances they could cause to occur; that they claim that
absent such consent they will detain defendant while a nonsearch alternative is used to acquire the information sought; that
they falsely claim that failure to consent would be a basis for
imposition of some official penalty; or that the police have
misrepresented the existence of certain facts (e.g., valid
consent by a co-occupant) which, if they actually existed,
would allow the police to make a warrantless search.
51
of the Toyota would have been suppressed as primary and derivative evidence
obtained as a direct result of the unlawful, warrantless search. (Doc. 121 at 139–51,
180–81, 187–90)
During the interrogation of Dasinger, the DEA agent confronted Dasinger with
fruits of the unlawful search of the hotel room (Doc. 121 at 203–05):
[Prosecutor:]
Did you ask the Defendant about the
methamphetamine that was seized on
October 8th of 2013?
[Agent:]
I did.
[Prosecutor:]
What did she tell you about that
methamphetamine?
[Agent:]
She told me that although all twelve
ounces were found in the same bag,
only four of the ounces belonged to her
and the other eight ounces belonged to
her boyfriend and co-defendant,
Jefferson Patterson.
[Prosecutor:]
Did she tell you who put the
methamphetamine in the backpack?
[Agent:]
She did. She stated that when she went
to place her four ounces in there that the
gun and the other eight ounces were
already in the backpack by the time she
put hers in there.
[Prosecutor:]
Did the Defendant tell you where she
got
her
four
ounces
of
methamphetamine?
[Agent:]
She did.
[Prosecutor:]
What did she tell you in that regard?
52
[Agent:]
She identified her source of supply that
she uses up in the Brooksville area.
[Prosecutor:]
Did the Defendant tell you the value of
the methamphetamine in regard to her
purchase of it?
[Agent:]
She did. She stated that she pays $1,200
per ounce and she actually sold her
sources of supply approximately $4,800
[because] that particular meth had been
fronted to her or provided on
consignment.
[Prosecutor:]
Just to clarify, “fronted” means what?
[Agent:]
Provided, given before payment. They
turn it over and then after the person
sells it, they bring back the money.
...
[Prosecutor:]
Did you ask the Defendant about the
firearm that was found?
[Agent:]
I did.
[Prosecutor:]
What did she tell you about that?
[Agent:]
She stated that the gun belonged to,
again, her boyfriend and co-defendant,
James Patterson. She advised that he
has carried it in the bag before, but he
doesn’t always have it with him.
[Prosecutor:]
Did you ask her if her fingerprints might
be on the gun?
[Agent:]
I did. I had asked if her fingerprints
would be on it. She said she wasn’t sure.
She stated she might have touched it a
couple weeks prior, but she didn’t think
her fingerprints would still be on it.
53
...
[Prosecutor:]
Did you ask her about the car?
[Agent:]
I did.
[Prosecutor:]
Specifically, the Toyota Avalon that
was the subject of the investigation?
[Agent:]
Yes, sir.
[Prosecutor:]
What did she tell you about that?
[Agent:]
She stated that she had borrowed it
from a friend, but actually it was her
friend’s father who owned the vehicle.
The father had no knowledge of them
using the car.
Even though the interrogation occurred after the troopers transported Dasinger
from the hotel to the parking lot of the county jail and after Dasinger waived her
constitutional rights, the agent obtained Dasinger’s incriminating statements by
confronting her with the fruit of the unlawful search. Consequently, her incriminating
statements are also fruit of the unlawful search. Wong Sun v. United States, 371 U.S.
471, 484 (1963) (“[V]erbal evidence which derives so immediately from an unlawful
entry and an unauthorized arrest as the officers’ action in the present case is no less
the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted
intrusion.”); United States v. Timmann, 741 F.3d 1170, 1182 (11th Cir. 2013) (“Under
the so-called ‘fruit of the poisonous tree’ doctrine, admissions or confessions that the
police induce by confronting a suspect with evidence obtained through an illegal
54
search or seizure must be suppressed.”) (citing Fahy v. State of Conn., 375 U.S. 85, 91
(1963)). 11
However, the record demonstrates that the prosecutor did not use the fruit of
the unlawful search to obtain Patterson’s testimony. “The [U.S. Supreme Court] has
[ ] held that live-witness testimony may be sufficiently attenuated from the primary
violation such that suppression of that testimony is not warranted, based on a number
of factors.” United States v. Powner, 481 F. App’x 529, 530 (11th Cir. 2012) (citing United
States v. Ceccolini, 435 U.S. 268, 278–79 (1978)). “These factors include whether the
testimony was coerced or induced; whether the tainted evidence itself was used to
obtain that testimony; the amount of time that elapsed since the illegal search and the
testimony; and whether the testimony can be logically traced back to the tainted
evidence.” Powner, 481 F. App’x at 530 (citing Ceccolini, 435 U.S. at 279–80).
The indictment jointly charged Dasinger and Patterson with conspiring to
possess with intent to distribute fifty grams or more of methamphetamine, possession
See also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§11.4(c) (footnotes omitted), which explains:
11
Although the Supreme Court has never confronted, except
obliquely, a situation in which it was seriously contended that a
confession was the fruit of a prior illegal search, in most such
cases there is little doubt as to what the result should be. In the
typical case where the defendant was present when incriminating
evidence was found in an illegal search or was confronted by the
police with incriminating evidence they had illegally seized
earlier, it is apparent that there has been an “exploitation of that
illegality” when the police subsequently question the defendant
about that evidence or the crime to which it relates. This is
because “the realization that the ‘cat is out of the bag’ plays a
significant role in encouraging the suspect to speak.”
55
with intent to distribute fifty grams or more of methamphetamine, possession of a
firearm in furtherance of a drug trafficking crime, and possession of a firearm by a
convicted felon. (Doc. 1) Patterson did not immediately plead guilty and adopted
Dasinger’s motion to suppress. (Doc. 42) The Government filed an information
notifying Patterson of the Government’s intent to seek a mandatory minimum
sentence of twenty years because Patterson had one prior drug conviction. (Doc. 34)
21 U.S.C. §§ 841(b)(1)(A) and 851(a) (2013).
Four days before trial, Patterson pleaded guilty to the methamphetamine
conspiracy and agreed to cooperate with the Government. (Docs. 61, 63, and 64) The
Government agreed to dismiss the possession of a firearm in furtherance of a drug
trafficking crime charge, which carried a consecutive five-year mandatory minimum
prison sentence, and the other two charges. (Doc. 61 at 2) The Government further
agreed to not oppose a sentence at the low end of the sentencing guideline range and
agreed to consider whether any substantial assistance justified filing a motion for a
reduction in his sentence. (Doc. 61 at 4–6)
Patterson testified on behalf of the Government at Dasinger’s trial (Doc. 121 at
112–18), the Government moved under Section 5K1.1, United States Sentencing
Guidelines, for a reduction of Patterson’s sentence based on substantial assistance,
after the jury found Dasinger guilty (Doc. 92), and the Court granted the
Government’s motion (Doc. 94) and sentenced Patterson to fifteen years and eight
months in prison. (Doc. 97) The Government’s Section 5K1.1 motion permitted the
trial court to sentence Patterson below the statutorily required twenty-year sentence.
56
18 U.S.C. § 3553(e). If Patterson had proceeded to trial, he faced at least twenty years
and up to life in prison for both the methamphetamine conspiracy and
methamphetamine possession charges, a consecutive mandatory five years for the
possession of a firearm in furtherance of a drug trafficking crime charge, and an
additional ten years for the possession of a firearm by a convicted felon charge.
21 U.S.C. § 841(b)(1)(A) (2013); 18 U.S.C. § 924(a)(2), (c)(1)(A) (2013).
At trial, on cross-examination, Patterson agreed that he received significant
benefits for pleading guilty including the dismissal of the possession of a firearm in
furtherance of a drug trafficking crime, which carried the mandatory, consecutive
five-year sentence, credit for accepting responsibility, and consideration by the
Government of a further reduction in his sentence for substantial assistance. (Doc. 121
at 125– 29)
Ceccolini, 435 U.S. at 276–77, explains that, unlike tangible evidence, a witness
may testify on his own volition despite that fact that an unlawful search or seizure
leads law enforcement to the discovery of the witness:
Witnesses are not like guns or documents which remain
hidden from view until one turns over a sofa or opens a
filing cabinet. Witnesses can, and often do, come forward
and offer evidence entirely of their own volition. And
evaluated properly, the degree of free will necessary to
dissipate the taint will very likely be found more often in the
case of live-witness testimony than other kinds of evidence.
The time, place and manner of the initial questioning of the
witness may be such that any statements are truly the
product of detached reflection and a desire to be cooperative
on the part of the witness. And the illegality which led to
the discovery of the witness very often will not play any
meaningful part in the witness’ willingness to testify.
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...
Another factor which not only is relevant in determining the
usefulness of the exclusionary rule in a particular context,
but also seems to us to differentiate the testimony of all live
witnesses — even putative defendants — from the exclusion
of the typical documentary evidence, is that such exclusion
would perpetually disable a witness from testifying about
relevant and material facts, regardless of how unrelated
such testimony might be to the purpose of the originally
illegal search or the evidence discovered thereby. Rules
which disqualify knowledgeable witnesses from testifying at
trial are, in the words of Professor McCormick, “serious
obstructions to the ascertainment of truth”; accordingly,
“[f]or a century the course of legal evolution has been in the
direction of sweeping away these obstructions.”
C. McCormick, Law of Evidence § 71 (1954). Alluding to
the enormous cost engendered by such a permanent
disability in an analogous context, we have specifically
refused to hold that “making a confession under
circumstances which preclude its use, perpetually disables
the confessor from making a usable one after those
conditions have been removed.” United States v. Bayer, 331
U.S. 532, 541 (1947). For many of these same reasons, the
Court has also held admissible at trial testimony of a witness
whose identity was disclosed by the defendant’s statement
given after inadequate Miranda warnings. Michigan v.
Tucker, 417 U.S. 433, 450–451 (1974).
Even though the Government obtained the indictment with the unlawfully
seized evidence, and the charges in the indictment caused Patterson to plead guilty,
Patterson’s testimony at trial is not a fruit of the unlawful search. Powner, 481 F. App’x
529, 531 (“Powner does not contest the validity of the indictments themselves. Indeed,
Calandra’s holding that unlawfully seized evidence may be submitted to a grand jury
to obtain an indictment would bar such an argument. And given the validity of the
indictments, we cannot accept Powner’s contention that the statements and testimony
58
extracted by using those otherwise valid indictments are somehow fundamentally
tainted.”) (citing United States v. Calandra, 414 U.S. 338, 354 (1974)).
Because the record demonstrates that the Government did not exploit the
unlawfully obtained evidence to obtain Patterson’s testimony, that Patterson instead
agreed to cooperate because of the indictment and because he sought to obtain a
reduction in his sentence, and that significant time elapsed between the unlawful
search and Patterson’s testimony at trial, Patterson’s testimony was not a fruit of the
unlawful search.
However, Dasinger demonstrates a reasonable probability that the jury’s verdict
would change without the fruits of the unlawful search. Kimmelman, 477 U.S. at 375.
The Government’s case against Dasinger critically weakens without the
methamphetamine, the firearm, the cash, the digital scales, the small plastic bags, and
Dasinger’s confession. (Doc. 121 at 139–51, 180–81, 187–90) Patterson testified that
he and Dasinger possessed over fifteen grams of methamphetamine; without the
substance seized from the trunk of the Toyota, the Government could not prove
beyond a reasonable doubt that the substance was methamphetamine and weighed
over fifteen grams. Patterson testified that he and Dasinger together sold
methamphetamine; without the scales, plastic bags, the methamphetamine, and the
firearm, the Government could not corroborate Patterson’s testimony concerning the
conspiracy. Patterson testified that Dasinger observed and knew about the firearm in
the backpack; without Dasinger’s admission during her confession that she knew
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about the firearm, the Government could not prove beyond a reasonable doubt that
Dasinger knew about the firearm.
Patterson, an eight-time convicted felon who faced at least twenty years in
prison after his guilty plea, admitted that he agreed to testify because he sought to
mitigate his sentence. (Doc. 121 at 121–30) A reasonable and conscientious juror
would find the Government’s case based only on Patterson’s self-serving testimony
against his ex-girlfriend, uncorroborated by the physical evidence and Dasinger’s
confession, as highly unpersuasive. Strickland, 466 U.S. at 695–96 (“The assessment of
prejudice should proceed on the assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that govern the decision. . . .
[A] verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.”).
Consequently, Dasinger demonstrates a reasonable probability that the
exclusion of the physical evidence and Dasinger’s confession would eviscerate the
Government’s case. Towns v. Smith, 395 F.3d 251, 260 (6th Cir. 2005) (“Parrish’s claim
of prejudice is further supported by the notable weaknesses in the prosecution’s case
. . . . The only evidence linking Parrish to the crime was the eyewitness testimony of
Roland Higgs. We have repeatedly expressed our ‘grave reservations concerning the
reliability of eyewitness testimony,’ and Higgs’s identification of Parrish in this case
was particularly shaky.”) (citations omitted); Gersten v. Senkowski, 426 F.3d 588,
613–14 (2d Cir. 2005) (“[W]here the record evidence in support of a guilty verdict is
thin, as it is here, there is more likely to be prejudice. This is even more true where
60
counsel’s failures go to something as important as the medical evidence in this case —
the only objective evidence that a crime occurred and the only evidence directly
corroborating any aspect of the victim’s story.”).
The Government has pointed to no competent record evidence to support a
claim that, absent the illegally seized drugs and firearm, the other evidence presented
at trial was sufficient to convict Dasinger at trial. Thus, without this critical evidence,
there is not only a reasonable probability that the outcome of the trial would have been
different, but it is nearly certain that the Government would have either lost at trial or
the case would have been dismissed. Thus, the Court finds that Lopez’s deficient
performance in failing to search with any diligence for Lloyd prejudiced Dasinger.
IV.
CONCLUSION
Accordingly, the motion to vacate under 28 U.S.C. § 2255, (Civ. Doc. 1), is
GRANTED IN PART and DENIED IN PART. For Ground One, because Dasinger
fails to demonstrate either a substantial showing of the denial of a constitutional right
or that reasonable jurists would debate the merits of the grounds or the procedural
issues, a certificate of appealability and leave to appeal in forma pauperis are DENIED.
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000).
For Ground Two, Dasinger demonstrates that she is entitled to release.
28 U.S.C. § 2255(b) (“If the court finds that . . . that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack, the court shall vacate and set the judgment aside and
shall discharge the prisoner or resentence [her] or grant a new trial or correct the
61
sentence as may appear appropriate.”); United States v. Brown, 879 F.3d 1231, 1235
(11th Cir. 2018) (“‘[F]ederal habeas corpus practice . . . indicates that a court has broad
discretion in conditioning a judgment granting habeas relief.’ And indeed this Court
has recognized ‘the broad, flexible power conferred by section 2255.’”) (citations
omitted).
Accordingly, the Clerk is DIRECTED to VACATE Dasinger’s judgment in
United States v. Dasinger, No. 8:14-cr-62-MSS-AEP (M.D. Fla.), to RE-OPEN the
criminal action for further proceedings consistent with this Order, to DOCKET a copy
of this Order in the criminal action, to ENTER a judgment in this civil action in favor
of Dasinger on Ground Two and against Dasinger on Ground One, and to CLOSE
this case.
DONE AND ORDERED in Tampa, Florida on September 22, 2023.
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