Batista v. United States of America

Filing 7

ORDER: Eider Utria Batista's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. # 1) is DENIED. The Clerk is directed to enter judgment for the United States of America and to close this case. Signed by Judge Virginia M. Hernandez Covington on 8/1/2022. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EIDER UTRIA BATISTA,
v.

Case No. 8:19-cr-145-VMC-TGW
8:22-cv-254-VMC-TGW

UNITED STATES OF AMERICA.
_______________________________/
ORDER
This matter is before the Court on Eider Utria Batista’s
pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or
Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 87), which was
filed on December 20, 2021. The United States of America
responded on February 24, 2022. (Civ. Doc. # 3). Batista filed
a reply on July 15, 2022. (Civ. Doc. # 6). For the reasons
that follow, the Motion is denied.
I.

Background
On April 3, 2019, a federal grand jury in Tampa returned

an indictment against Batista. (Crim. Doc. # 1). Batista was
charged with conspiracy to distribute 500 grams of cocaine,
as well as a detectable amount of marijuana, in violation of
21 U.S.C. § 846 (Count One), three counts of possession with
intent to distribute cocaine, in violation of 21 U.S.C. §
841(b)(1)(C) (Counts Two through Four), and possession with
1

intent to distribute cocaine and marijuana, in violation of
21 U.S.C. § 841(b)(1)(C) and (b)(1)(D) (Count Five). (Crim.
Doc. ## 1, 39). On October 30, 2019, Batista entered a guilty
plea to Counts One through Five. (Crim. Doc. ## 44, 46, 47).
During the change of plea hearing, Batista was placed
under oath and — through an interpreter — acknowledged that
he read and understood the charges against him. (Crim. Doc.
#

80

at

8).

Batista

expressed

satisfaction

with

the

representation provided by his counsel and stated that there
was nothing he felt she should have done that she did not do
in this case. (Id. at 18). The Court explained the essential
elements of all five charges against Batista as well as the
potential penalties, and Batista acknowledged understanding
them. (Id. at 19-22).
The Court then discussed the lack of a plea bargain due
to Batista’s objections to some aspects of the factual basis
provided by the United States. (Id. at 24). Because he did
not agree with some of the facts laid out in a proposed plea
agreement, Batista confirmed that he had chosen to plead
guilty without the benefit of such an agreement and affirmed
that no one had promised him anything in return for his plea,
nor had they forced or coerced him to plead guilty. (Id. at
25-26).
2

Batista’s sentencing was held on February 14, 2020,
during which his counsel presented objections to the factual
accuracy of the presentence investigation report. (Crim. Doc.
# 59 at 6). Batista’s counsel had earlier provided this
objection, among other objections, to probation:
Mr. Batista denies that he is a leader of a drug
trafficking
organization.
Mr.
Batista
denies
arranging for cocaine to be transported by various
drivers, boat captains, using various cars trucks
or boats to Sarasota.
(Crim. Doc. # 49 at 20).
At

sentencing,

Batista’s

counsel

summarized

his

objections as follows:
The objection to paragraph 26 is the firearm
enhancement. The objections to 11 and 28 are the
role enhancements that the government and the
federal probation officer applied. That is an
increase of four levels; and, that is, my client
has no control over the behavior of the codefendants. There was really no one in charge of
this organization.
(Crim. Doc. # 59 at 8).
Batista’s counsel elaborated on the factors necessary to
find a defendant had a leadership position and argued the
factors did not support Batista receiving such a designation.
(Id.). The United States had categorized him as a leader of
the conspiracy referenced in Count One, resulting in a fourlevel offense enhancement. (Crim. Doc. # 39 at 3, 8). The

3

United States responded to the objections raised by Batista’s
counsel,

presenting

facts

supporting

the

leadership

enhancement. (Crim. Doc. # 59 at 16-19). The case agent then
testified regarding this issue. (Id. at 24).
After hearing the objections raised by the defense,
facts presented by the United States, and the case agent’s
testimony, this Court determined that the objection should be
overruled. (Id. at 35). Later, the Court stated that “the
government

has

established

that

the

defendant

was

an

organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” (Id. at
51). The Court also overruled Batista’s objection to the
firearm enhancement. (Id. at 20-21).
This Court sentenced Batista to a 135-month term of
imprisonment

for

all

supervised

release.

contesting

the

counts,
(Id.

four-level

at

followed
53-54).

enhancement

by

five

Batista
for

his

years

of

appealed,
leadership

role. On November 17, 2021, the United States Court of Appeals
for the Eleventh Circuit affirmed the sentence after an
independent examination of the record, holding that “the
district court determined reasonably that the government had
established by a preponderance of the evidence that Batista

4

played a leadership role in a criminal conspiracy involving
five or more participants.” (Crim. Doc. # 85 at 6).
Now,

Batista

ineffective

seeks

assistance

post-conviction
of

counsel

relief,

based

on

arguing
counsel’s

allegedly “failing to object to the” four-level leadership
enhancement. (Civ. Doc. # 1; Civ. Doc. # 1-1 at 3). The United
States has responded. (Civ. Doc. # 3). Batista has replied,
attempting

to

add

new

claims

for

relief

regarding

the

leadership enhancement, the firearm enhancement, and alleged
promises made by the government before his guilty plea. (Civ.
Doc. # 6). The Motion is ripe for review.
II.

Discussion
A.

The Motion

Batista’s Motion was timely filed on December 20, 2021.
(Civ. Doc. # 1 at 12). The Motion, which asserts a single
claim for ineffective assistance of counsel, is cognizable
under Section 2255. 1 See Massaro v. United States, 538 U.S.
Although Batista listed two grounds for relief in his Motion
(Civ. Doc. # 1), his only substantive argument for relief is
his claim of ineffective assistance of counsel based on the
alleged failure to object to the leadership enhancement. This
is because Batista’s “Ground Two,” labelled “Colorable Sixth
Amendment Claim,” is simply a demand for an evidentiary
hearing on his claim of ineffective assistance of counsel.
(Id. at 5; Civ. Doc. # 1-1 at 4). Because “Ground Two” is not
a true ground for relief, the Court will address whether an
evidentiary hearing is necessary at the end of this Order.
1

5

500

(2003)

(allowing

an

ineffective-assistance-of-counsel

claim to be brought in a proceeding following a direct appeal
under Section 2255). Batista bears the burden of proving that
he is entitled to relief under Section 2255. See Rivers v.
United States, 777 F.3d 1306, 1316 (11th Cir. 2015) (“[W]e
note that Rivers bears the burden to prove the claims in his
§ 2255 motion.”).
To prevail on a claim of ineffective assistance of
counsel,

a

petitioner

must

show

that

(1)

his

counsel’s

performance was deficient, and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish deficient performance, Batista
must demonstrate by a preponderance of the evidence “that
particular and identified acts or omissions of counsel ‘were
outside

the

wide

range

of

professionally

competent

assistance.’” Chandler v. United States, 218 F.3d 1305, 1314
(11th Cir. 2000) (citations omitted). In other words, Batista
must show that “no competent counsel would have taken the
action that [his] counsel did take.” Id. at 1315. In deciding
whether an attorney’s performance was deficient, courts are
“highly deferential” and “indulge [the] strong presumption
that counsel’s performance was reasonable and that counsel
made all significant decisions in the exercise of reasonable
6

professional judgment.” Id. at 1314 (internal quotation marks
omitted).
To

satisfy

Strickland’s

second

prong

—

prejudice

—

Batista must show that “there is 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.

“[T]here is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or
even

to

address

both

components

of

the

inquiry

if

the

defendant makes an insufficient showing on one.” Id. at 697.
In

his

Motion,

Batista

argues

his

counsel

provided

ineffective assistance “by failing to object to the [fourlevel] enhancement of [his] sentence under § 3B1.1 for his
‘leadership.’” (Civ. Doc. # 1 at 3). According to Batista,
had

counsel

objected

to

the

leadership

enhancement,

the

enhancement would not have been applied and he would have
been sentenced to “42 months that his counsel previously
promise[d] to him that he would get if he plead[ed] guilty.” 2
(Id.).
Batista conclusorily alleges that his counsel promised him
a forty-two-month sentence. (Civ. Doc. # 1-1 at 3). He again

2

7

Batista’s claim fails because he cannot establish by a
preponderance of the evidence that his counsel’s performance
was deficient. The reason is simple: Batista’s assertion that
his counsel failed to object to the four-level leadership
enhancement

is

belied

by

the

record.

Batista’s

counsel

objected to the four-level leadership enhancement on two
separate occasions. First, Batista’s counsel objected to,
among other things, probation’s inclusion of the leadership
enhancement in the presentence investigation report. (Crim.
Doc. # 49 at 15-20). That objection stated that Batista
“denies

that

organization”

he

is

a

and

“denies

leader

of

arranging

a

drug

for

trafficking

cocaine

to

be

transported by various drivers, boat captains, using various
cars, trucks, or boats to Sarasota.” (Id. at 20).

asserts this in his reply. (Civ. Doc. # 6 at 3). This
allegation is contradicted by Batista’s statements at his
change of plea hearing, during which Batista acknowledged
under oath that no one had “promised [him] anything in order
to get [him] to plead guilty.” (Crim. Doc. # 80 at 26); see
Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th
Cir. 2014) (“[B]ecause Winthrop–Redin made statements under
oath at a plea colloquy, ‘he bears a heavy burden to show his
statements were false.’” (citation omitted)). Additionally,
Batista has provided no evidence to substantiate this
allegation. Issues mentioned only in passing are not treated
as properly raised claims. Walker v. Dugger, 860 F.2d 1010,
1011 (11th Cir. 1988).
8

Then,

at

sentencing,

Batista’s

counsel

argued

more

extensively against the characterization of Batista as a
leader and application of the leadership enhancement. (Crim.
Doc. # 59 at 8-9). Counsel discussed the factors that must be
weighed before the enhancement can be applied and argued that
these factors did not weigh in favor of characterizing Batista
as a leader or organizer. (Id.) Counsel emphasized that
Batista had “no control or any authority over any of the
others participating.” (Id. at 9). Despite these objections
being ably raised by Batista’s counsel, this Court ruled that
the testimony and evidence presented by the United States
supported the application of the leadership enhancement. (Id.
at 35, 45-51). The Court’s overruling an objection does not
mean the objection was never raised.
In

short,

counsel’s

performance

was

not

deficient

because counsel did object to the leadership enhancement. See
Perez v. United States, 2015 WL 13402548 at *12 (S.D. Fla.
Nov. 17, 2015) (holding that when counsel raises a defense,
that defense not resulting in a full acquittal is insufficient
to

establish

ineffective

assistance

of

counsel).

Because

Batista has failed to establish Strickland’s first prong,
this Court does not need to address the issue of prejudice.

9

In short, Batista has failed to prove his claim of ineffective
assistance of counsel based on the leadership enhancement.
B.

The Reply

The Court notes that Batista raised additional claims
for the first time in his reply brief, including that he
should not have received a firearm enhancement at sentencing,
that

the

leadership

enhancement

should

not

have

applied

because the government has not proved that five participants
were

involved

in

the

criminal

activity,

and

that

the

government had promised Batista that it would not seek a gun
enhancement and he would only receive a five-year sentence if
he pled guilty. (Civ. Doc. # 6 at 2-3). But new claims for
relief may not be raised for the first time in a reply. See
Oliveiri v. United States, 717 F. App’x 966, 967 (11th Cir.
2018)

(“[T]he

district

court

did

not

violate Clisby by

failing to address his claim that his counsel was ineffective
for failing to object to the sentencing court’s U.S.S.G. §
2B1.1(b)(11)(C)(i) enhancement. Oliveiri did not present this
claim in his § 2255 motion, but rather raised it for the first
time in his reply to the government’s response. By doing so,
he waived the claim. Although Clisby requires a district court
to resolve every claim properly presented in a § 2255 motion,
it does not require the court to address a claim that a movant
10

waives

by

failing

to

raise

it

until

his

reply

brief.”

(citations omitted)). Thus, these claims raised for the first
time in the reply are deemed waived.
Even if these new claims were properly raised, Batista
has fallen far short of establishing entitlement to relief.
As for the government’s alleged promises made before Batista
pled guilty, Batista’s own statements under oath at his change
of plea hearing contradict his allegations now. Again, at
that hearing, Batista affirmed that no one had “promised [him]
anything in order to get [him] to plead guilty.” (Crim. Doc.
# 80 at 26). He also affirmed that no one “forced [him] or
coerced [him] in order to get [him] to plead guilty.” (Id. at
25). “There is a strong presumption that statements made
during the plea colloquy are true. Consequently, a defendant
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) (citations omitted) (rejecting a claim of an
involuntary plea based on counsel’s alleged promise of a twoor three- year sentence because these allegations were “in
direct conflict with his statements during the plea colloquy,
and he [had] produced no evidence to challenge the veracity
of his sworn testimony”); see also Winthrop-Redin, 767 F.3d
1210, 1217 (11th Cir. 2014) (“[B]ecause Winthrop–Redin made
11

statements under oath at a plea colloquy, ‘he bears a heavy
burden

to

show

his

statements

were

false.’”

(citation

omitted)). Batista has not met the heavy burden of showing
that his statements under oath during the plea colloquy were
false.
Regarding

the

leadership

enhancement,

Batista

now

suggests that counsel was ineffective for not focusing his
argument against the leadership enhancement on the number of
participants

in

the

criminal

conduct.

According

to

him,

“there are not enough defendants in his case for him to be a
leader” under USSG § 3Bl.l(a), which only applies when the
criminal activity involved five or more participants, because
“there are only four participants” in this case. (Civ. Doc.
# 6 at 3). But the Court of Appeals has already rejected this
argument about the number of participants:
The record also evidences sufficiently that the
drug-trafficking operation involved five or more
participants. In addition to undisputed evidence
of involvement by Batista and by Calvo, Agent
Brooks
testified
[at
sentencing]
about
the
activities of Agostines Perez and identified two
other co-conspirators (Jose Gonzalez Perez and
Miker Pupo) who were each involved in drugtrafficking activities at the stash house.
(Crim. Doc. # 85 at 6). Thus, Batista’s argument about the
number of participants lacks merit because evidence of five
participants was provided at sentencing. Because the argument
12

lacks merit, counsel was not ineffective for failing to raise
it during sentencing and Batista has suffered no prejudice.
See Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990)
(“Counsel cannot be labeled ineffective for failing to raise
issues which have no merit.”); see also United States v.
Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“[A] lawyer’s
failure

to

preserve

a

meritless

issue

plainly

cannot

prejudice a client.”).
Nor is the Court persuaded by Batista’s argument about
the firearm enhancement. Batista does not argue that counsel
was

ineffective

for

failing

to

object

to

the

firearm

enhancement. 3 Instead, Batista merely argues that the firearm
enhancement should not have been applied because it “was a
legal gun” that he kept to protect his family and his jewelry
business. (Civ. Doc. # 6 at 2). Thus, he insists the gun “had
nothing to do with the drug[s]” and that the government had
agreed not to seek a firearm enhancement. (Id.). The Court

Nor could he make such an argument. Counsel did object to
the firearm enhancement. He argued in his written objections
to the presentence investigation report that Batista “denies
that the firearm was used in furtherance of his cocaine sales”
and that Batista “acquired the firearm because he is in the
jewelry business” (Crim. Doc. # 49 at 20) — the same arguments
Batista makes in his reply. Counsel also raised this objection
to the firearm enhancement at sentencing, which was
overruled. (Crim. Doc. # 59 at 7-8, 20-21).
3

13

has already dealt with Batista’s allegations of promises by
the government. As for the firearm enhancement itself, it
does not appear that Batista argued this enhancement was
inappropriate on direct appeal, despite his ability to do so.
Regardless,

sufficient

evidence

was

presented

during

sentencing to support imposition of the firearm enhancement
and none of Batista’s allegations undermine that. See, e.g.,
(Crim. Doc. # 59 at 15) (“Inside that same bedroom where they
found the gun in the top drawer with $24,000 of cash, they
also found a significant amount of cocaine and marijuana. .
. . So given the defendant’s occupation, given his sort of
enterprise, it’s not surprising that he would keep a gun handy
to defend himself, his cash, and his proceeds.”).
For all these reasons, Batista’s Motion is denied.
III. Evidentiary Hearing
As the Court was able to readily determine that the claim
lacks merit, no evidentiary hearing is required. See 28 U.S.C.
§

2255(b)

(stating

that

an

evidentiary

hearing

is

not

necessary if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief”); see also Hernandez v. United States, 778 F.3d 1230,
1232–33 (11th Cir. 2015)(“To establish that he is entitled to
an evidentiary hearing, Hernandez had to allege facts that
14

would prove both that his counsel performed deficiently and
that

he

was

prejudiced

by

his

counsel’s

deficient

performance.”).
IV.

Certificate of Appealability and Leave to Appeal In
Forma Pauperis Denied
The

Court

appealability

declines

because

to

Batista

issue
has

a

certificate

failed

to

make

of
a

substantial showing of the denial of a constitutional right
as required by 28 U.S.C. § 2253(c)(2). Nor will the Court
authorize Batista to proceed on appeal in forma pauperis
because such an appeal would not be taken in good faith. See
28 U.S.C. § 1915(a)(3). Batista shall be required to pay the
full amount of the appellate filing fee pursuant to Section
1915(b)(1) and (2).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Eider Utria Batista’s pro se 28 U.S.C. § 2255 Motion to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim.
Doc. # 87) is DENIED. The Clerk is directed to enter judgment
for the United States of America and to close this case.

15

DONE and ORDERED in Chambers in Tampa, Florida, this 1st
day of August, 2022.

16