Amalfitano v. United States of America
ORDER denying 1 Motion to Vacate / Set Aside / Correct Sentence (2255) and directing Clerk to close case. A Certificate of Appealability and permission to proceed on appeal are denied. Signed by Judge William F. Jung on 11/18/2022. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
DOMINIC GREGORY AMALFITANO,
Case No. 8:21-cv-2768-WFJ-SPF
UNITED STATES OF AMERICA,
ORDER DENYING PETITION UNDER 28 U.S.C. § 2255
The Petitioner Dominic Amalfitano brings this petition for relief under 28 U.S.C. §
2255. Petitioner received a low-end guidelines sentence after a guilty plea with an
appeal waiver. The Government concedes a timely, original petition. The Court has
reviewed the merits and all filings related to this matter, and denies relief.
The underlying case is found at 8:17-cr-5921. Petitioner sold an undercover
officer methamphetamine on five different occasions. Crim. Doc. 31 at 20–21. Law
enforcement executed a search warrant at Petitioner’s home and found drugs, cash,
and more than 250 items of stolen property including 16 firearms and over 4,000
rounds of ammunition. Id. at 21–22.
Petitioner pleaded guilty with a plea agreement to distribution of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Five)
Reference to the underlying criminal case is “Crim. ___.” Reference to the instant civil
collateral case is “Civ. ___.”
and possession of stolen firearms, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2)
(Count Six). Crim. Docs. 1, 31. The Court will consider each claim asserted in the
petition serially below. The first three claims assert ineffective assistance of
counsel, and they are discussed together.
Concerning the burden of proof, on collateral review the petitioner bears the
burden of proof and persuasion on each and every aspect of his claim, Beeman v.
United States, 871 F.3d 1215, 1221–25 (11th Cir. 2017) (collecting cases), which is
“a significantly higher hurdle than would exist on direct appeal” under plain error
review, see United States v. Frady, 456 U.S. 152, 164–66 (1982). Accordingly, if
this Court “cannot tell one way or the other” whether the claim is valid, then the
petitioner has failed to carry his burden. In re Moore, 830 F.3d 1268, 1273 (11th
Cir. 2016); cf. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (in
plain error review, “the burden truly is on the defendant to show that the error
actually did make a difference … Where errors could have cut either way and
uncertainty exists, the burden is the decisive factor in the third prong of the plain
error test, and the burden is on the defendant.”).
Claims 1-3: Petitioner asserts his lawyer was ineffective in failing to investigate
the sufficiency of the search warrant, inform him of the correct standard regarding
stolen firearms, and adequately prepare for sentencing. To succeed on an ineffective
assistance of counsel claim, a petitioner must show that counsel committed “errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed … by the Sixth
Amendment, ” and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
If a petitioner fails to establish either of the Strickland prongs, his claim fails. See
Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292, 1319 (11th Cir. 2005). Strickland
sets a “high bar” for ineffective assistance claims, and surmounting it “is never an
easy task.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (cleaned up). When
evaluating performance, this Court must apply a “strong presumption” that counsel
has “rendered adequate assistance and [has] made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
To establish deficient performance, a petitioner must show that “no competent
counsel would have taken the action that his counsel did take.” See Chandler, 218
F.3d at 1315. The standard that the petitioner must meet is both “rigorous” and
“highly demanding,” and requires a showing of “gross incompetence” on counsel’s
part. Kimmelman v. Morrison, 477 U.S. 365, 381–82 (1986).
A petitioner demonstrates prejudice only when he establishes “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id.
It appears that a claim from the initial § 2255 petition might have been removed
from the present, operative petition, which was filed later. The present petition is
found at Civ. Doc. 1. The first stated ground, according to Petitioner, “was Claim 2
and is now Claim 1.” Id. at 4-5.
Petitioner’s first ground for ineffective assistance is frivolous. He asserts that the
state search warrant of his premises lacked a notary seal and was thus fatally
defective. Petitioner mis-cites the Florida statute, Fla. Stat. § 95.20, in this portion
of the petition. Civ. Doc. 1 at 5. His lawyer, he contends, was constitutionally
ineffective in failing to perceive and pursue this omission of the notary seal as part
of the defense. But Petitioner entered a knowing and uncoerced plea of guilty,
affirming his guilt as to all elements of the crime, waiving any pre-plea defects of
this type nature. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 19920;
Franklin v. United States, 589 F.2d 192, 194 (5th Cir. 1979).
On the merits, the record shows that the search warrant was duly issued by a State
of Florida Circuit Court Judge and signed by that judge upon the applicant’s sworn
affidavit. Civ. Doc. 1-1 at 1-2. It appears that the search warrant return was
required to be notarized per Florida Statute section 933.12. This return was
notarized and was stated to be signed under oath as required by the statute, but in
this record one cannot see the notary stamp on the warrant or return itself. Also
present on the return is the oath, notary jurat, notary’s signature, date, and Florida
notary number. Civ. Doc. 1-1 at 4. This return was then filed with the Clerk the
Defense counsel was not deficient for failing to move to suppress the search
because the notary signed the return but did not stamp it. Such a defect, if defect
there be, would have no chance or likelihood of impacting Petitioner’s case in any
way. There was simply no defect, and certainly no prejudice to Petitioner.
Petitioner’s second ground (labeled Ground Two and found at Civ. Doc. 1 at 7)
for ineffective representation was that his trial counsel did not advise him, under
Rehaif v. United States, 139 S. Ct. 2319 (2019) that he had to have known the guns
in Count VI were stolen, and he did not. First, Petitioner brought this issue up on his
direct appeal, and the Eleventh Circuit concluded that Petitioner admitted in his
guilty plea colloquy that he knew the guns were stolen. See Crim. Doc. 75 at 9.
That ends this issue. See also plea colloquy at Crim. Doc. 51 at 12, 14, and 22
(admitted gun stolen); Crim. Doc. 31 at 2-3 (Petitioner initials plea agreement page
stating that he “knew or had reasonable cause to believe the firearm was stolen.”).
Further, Rehaif does not apply here. Rehaif held that the defendant who was
convicted of possessing firearms as a restricted person under 18 U.S.C. § 922(g),
had to know of his restriction (such as a felony record, illegal alien, or fugitive status
etc.). In contrast, Petitioner pled to 18 U.S.C. § 922(j) which is knowing possession
of stolen firearms in interstate commerce. The stolen nature of the guns was an
element of Petitioner’s crime and he knew all the elements and agreed to them,
admitting guilt to them expressly at his plea. His plea makes entire sense when one
considers Petitioner admitted that his house had myriad stolen items throughout it, a
veritable warehouse of over 250 stolen goods including 16 guns and over 4,000
rounds of ammunition. Crim. Doc. 31 at 20-22.
Petitioner’s third ground for ineffective assistance of counsel is failure to prepare
for sentencing. Civ. Doc. 1 at 8. This is frivolous. The transcript shows his attorney
was prepared and well-spoken. Petitioner was hoping for a lower sentence, but
received a bottom-end guideline sentence. Ample ground existed for an upward
variance, including the stolen goods menagerie that Petitioner managed.
At the plea colloquy, Petitioner affirmed that he discussed his case with counsel
and was fully satisfied with counsel’s representation. Crim. Doc. 51 at 8. He
acknowledged the valuable rights he waived by pleading guilty, including his right to
challenge how the government obtained the evidence. Id. at 10–11. He
acknowledged that he faced a maximum of 20 years’ imprisonment as to Count Five
and a maximum of 10 years’ imprisonment as to Count Six. Id. at 13. The Court
warned Petitioner that he could not withdraw his guilty plea if his sentence was
higher than the estimate given by his counsel. Id. at 15–16. Petitioner agreed that the
facts contained in his plea agreement were true. Id. at 21–22. Notably, he admitted
that he knew the firearms were stolen. Id. at 22. Having determined that a factual
basis supported the charges, the Court found Petitioner was pleading guilty both
knowingly and voluntarily. Id. at 25–26. As a result, this Court adjudicated him
guilty. Crim. Doc. 39.
The Probation Office held Petitioner accountable for 111.63 grams of
methamphetamine (actual) and issued a base offense level of 30. Crim. Doc. 42.
Presentence Investigation Report (“PSR”) ¶ 26. Petitioner received a two-level
enhancement for possessing a firearm and a three-level reduction for acceptance of
responsibility. Id. ¶¶ 27, 33–34. His total offense level (29) and criminal history
category (I) produced an advisory guidelines range of 87 to 108 months’
imprisonment. Id. ¶¶ 35, 51, 90.
In advance of sentencing, defense counsel filed a sentencing memorandum
requesting a 48-month sentence. See generally Crim. Doc. 44. Counsel highlighted
Petitioner’s difficult upbringing and his lack of violent and drug offenses in his
criminal history. Id. at 4–5.
At sentencing, defense counsel noted that the initial PSR had a much lower
guidelines range because it was prepared without the benefit of a lab analysis. Crim.
Doc. 53 at 5–6. This analysis showed that the methamphetamine was a “very highquality, high-grade, high-purity” and the new guideline range, while correct,
“shocked” Petitioner. Id. at 6–7. Without objection, this Court accepted the factual
statements and guidelines calculation. Id. at 7. Defense counsel again requested a
downward variance to 48 months, reiterating the 18 U.S.C. § 3553(a) factors
discussed in his sentencing memorandum. Id. at 8–12, 15–17. Counsel informed this
Court that “Mr. Amalfitano bought these firearms believing them to be—first of all,
not to be stolen, and it was okay for him to buy the firearms.” Id. at 9. Counsel also
stated that Petitioner “assured [him] that he did not steal [the
guns].” Id. at 11.
Petitioner then addressed the Court and expressed remorse for selling
methamphetamine to the undercover officer and stated he would not reoffend. Id. at
13. Both in his sentencing memorandum and at sentencing, defense counsel outlined
the various mitigating factors to support Petitioner’s request for a downward
departure. See generally Crim. Doc. 44; see also Crim. Doc. 53 at 8–12. At
sentencing, counsel emphasized that Petitioner was not a convicted felon, he had no
violent, felony, or drug history, and Petitioner maintained employment. Crim. Doc. 53
at 9–10. This Court complimented defense counsel’s memorandum, finding it “highly
effective” and a good piece of work. Id. at 8. As noted, Petitioner received a low-end
guidelines sentence. Crim. Doc. 46. The Court’s full re-examination of this record
shows a competent, able defense presentation.
It appears Petitioner has inserted a ground into the petition that is unspecified and
appears out of place. It can be found after Ground Three and states “This was Claim
3 and now is Claim 2.” Civ. Doc. 1 at 10. The Court will address this supplemental
ground which seems out of place. Petitioner claims his plea agreement was for 4657 months and the prosecutors breached the plea deal. Id. Petitioner cites no
evidence in support of this supplemental ground, and appears to repeat several
criticisms of his attorneys already set forth in Grounds One through Three. Id. The
only arguably new portion of this supplemental ground is the assertion that the
Government breached a plea agreement for 46-57 months. But there is no evidence
in the record for this claim, and the plea agreement, plea colloquy, and sentencing
transcript all refute this unspecified ground completely.
Ground Four: This fourth ground for relief can be found at Civ. Doc. 1 at 12-15,
and is labeled “Ground Three” and also “Ground Four,” starting at Civ. Doc. 1 at 15.
Construing this ground liberally, Petitioner states that the District Court denied him due
process of law by basing the sentence on inaccurate information. But this ground cites no
new basis for the claim other than contending obliquely and with no descriptive basis or
reasoning that the guns did not impact interstate commerce and were miscounted. Petitioner
also contends that the drug weight was off, ignoring the concept of guideline relevant
conduct discussed below. He seems to allege that there was no factual basis to support
his plea, which renders this Court’s sentence unlawful. Civ Doc. 1 at 12–13.
Petitioner waived any challenge to the factual basis supporting his plea when he
entered his knowing and voluntary guilty plea. Tollett v. Henderson, 411 U.S. 258,
at 267 (1973). And “[t]here is a strong presumption that statements made during the
plea colloquy are true,” and Petitioner “bears a heavy burden to show that his
statements under oath were false.” Patel v. United States, 252 F. App’x 970, 975
(11th Cir. 2007).
During his plea hearing, Petitioner affirmed that by pleading guilty, he waived
his right to challenge how the government obtained the evidence. Crim. Doc. 51 at
10–11. He also recognized that if his sentence was higher than his counsel’s
estimate, he could not withdraw his guilty plea. Id. at 15–16. Petitioner agreed that
the facts contained in his plea agreement were true including that he knew the
firearms were stolen, and had travelled in interstate commerce. Id. at 21–23.
When Petitioner did not object to the Report and Recommendation, this Court
correctly accepted the plea and adjudicated him guilty. Crim. Doc. 39.
Furthermore, the Eleventh Circuit disagreed with Petitioner’s argument that Count
Six lacked a factual basis when it affirmed his conviction. Crim. Doc. 75 at 9–10.
Petitioner cannot prove that the factual basis was insufficient to support the
charges. See United States v. Cabezas, 797 F. App’x 415 (11th Cir. 2019) (holding
that factual basis for guilty plea was “more than sufficient,” where defendant
admitted in open court that stipulated statement of facts detailing his offense was
correct). And he bears the burden of proof on every aspect of this claim. Beeman v.
United States, 871 F.3d 1215, 1222 (11th Cir. 2017). If this Court “cannot tell one
way or the other” whether a necessary fact is true, the claim fails. In re: Moore, 830
F.3d 1268, 1273 (11th Cir. 2016). Because Petitioner cannot meet this burden, this
Court should dismiss this portion of the petition.
Petitioner also appears to challenge the United States’ and this Court’s
jurisdiction because he believes the firearms did not affect interstate commerce. Civ.
Doc. 1 at 13. “Because the federal courts are courts of limited jurisdiction, deriving
their power from Article III of the Constitution and from the legislative acts of
Congress, the parties cannot confer upon the courts a jurisdictional foundation that
they otherwise lack.” United States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir.
2016). Accordingly, “subject matter jurisdiction can never be waived, and a court
can raise that issue sua sponte at any time.” United States v. Moore, 954 F.3d 1322,
1336 (11th Cir. 2020) (emphasis in original) (citing Fort Bend County, Tex. v. Davis,
139 S. Ct. 1843, 1849 (2019)). But true jurisdictional claims are few and far between.
See Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006) (“This Court, no less than
other courts, has sometimes been profligate in its use of the term [‘jurisdictional’].”).
“The lynchpin for a defect that implicates jurisdiction is whether the indictment
charged the defendant with a criminal offense against the laws of the United States.”
Moore, 954 F.3d at 1334 (citations and quotations omitted).
“A jurisdictional defect is one that strips the court of its power to act and makes
its judgment void.” McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001).
Because 18 U.S.C. § 3231 gives district courts subject-matter jurisdiction over “all
offenses against the laws of the United States,” an indictment that charges a federal
crime establishes the district court’s jurisdiction. Alikhani v. United States, 200 F.3d
732, 734–35 (11th Cir. 2000); see also United States v. Peter, 310 F.3d 709, 713–
14 (11th Cir. 2002) (because indictment failed to charge an offense, court lacked
jurisdiction). During his change-of-plea hearing, both defense counsel and
Amalfitano stipulated that the firearms had travelled in or affected interstate
commerce. Crim. Doc. 51 at 22–23.
Ground Five: The numbering of the petition is somewhat difficult to follow.
In a Reply, Petitioner states he only seeks three grounds for relief “so there is no
claim(s) four(4) or five(5) [sic].” Civ. Doc. 8 at 6. Notwithstanding this, there
appears in the main petition five grounds, liberally read, asserted for relief. In the
petition, Petitioner labels this final ground as “Ground Four.” Civ. Doc. 1 at 15.
Petitioner states that this Court based its sentence on an inaccurate drug weight.
Civ. Doc. 1 at 14. He believes he is only accountable for the amount of
methamphetamine attributable to the single count for which he pleaded guilty. Id. He
is mistaken. The written plea agreement details, factually, four meth sales and
additional meth seizure at the search warrant execution. Crim. Doc. 31 at 20–21.
The Eleventh Circuit has held that drug amounts that were part of the
indictment but later dismissed as part of the plea agreement may be considered as
relevant conduct. United States v. Kennedy, 326 F. App’x 509, 511 (11th Cir.
2009) (“Under the advisory guidelines, the district court may consider all relevant
conduct— not just charged conduct—in calculating a defendant's offense level.”)
(citing United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006)). Indeed,
sentencing courts must consider all “relevant conduct,” as defined in USSG
§1B1.3, when calculating a defendant's guideline range. United States v. Bruce,
665 F. App’x 852, 856 (11th Cir. 2016) (citing United States v. Siegelman, 786
F.3d 1322, 1332 (11th Cir. 2015)). Conduct is “relevant” under §1B1.3, and may
be attributed to the defendant for purposes of sentencing, if it “was ‘part of the
same course of conduct or common scheme or plan’ as the offense of conviction.”
Id. (citing United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999) and
quoting USSG §1B1.3(a)(2)). A judge may even rely on acquitted conduct in
determining the drug quantity attributable to a defendant. See United States v.
Duncan, 400 F.3d 1297, 1304–05 (11th Cir. 2005) (affirming district court’s drug
quantity finding based in part on acquitted conduct).
Here, the Probation Office correctly held Petitioner accountable for 111.63
grams of methamphetamine (actual). Crim. Doc. 42 - PSR ¶ 20. As counsel stated
during sentencing, both counsel and Petitioner could not object to the quantity in
good faith. Crim. Doc. 53 at 7. For the reasons discussed, this Court did not err in
its drug quantity calculation and should deny his claim in the final ground, no
matter how it is denumerated.
There is no basis for an evidentiary hearing. The grounds of the petition are
either patently without merit as discussed above, or are contradicted by the clear
record. See, e.g., Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir.
2014); Aron v. United States, 291 F.3d 708, 714–15 (11th Cir. 2002) (citation
Accordingly, the petition is denied and the Clerk is ordered to close this file. The
Court concludes that no reasonable jurist would find a colorable or meritorious issue
in the Petition, and thus any Certificate of Appealability or request to proceed in
forma pauperis is denied.
DONE AND ORDERED at Tampa, Florida, on November 18, 2022.
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