Fisher v. United States of America

Filing 18

ORDER: Dion Fisher's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. # 1) is DENIED in part and DEFERRED in part. The Motion is denied as to Grounds One, Three, First Four, Second Four, Five, Six, First Seven, Second Seven, Eight, Nine, and all construed Grounds. Judgment on these claims will not be entered at this time. The Court defers ruling on Ground Two pending an evidentiary hearing. The evidentiary hearing will solely be held to address the merits of Ground Two, and the Court will not permit Mr. Fisher to amend that Ground or add additional grounds. The Clerk is directed to set this case for an evidentiary hearing. Pursuant to Rule 8(c) of the Rules Governing § 2255 Proceeding s, the Court finds that counsel should be appointed to represent Mr. Fisher at the evidentiary hearing. The Court asks that Magistrate Judge Wilson please appoint counsel to represent Mr. Fisher. Signed by Judge Virginia M. Hernandez Covington on 8/29/2024. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DION FISHER,
v.

Case No. 8:18-cr-236-VMC-TGW
8:23-cv-652-VMC-TGW

UNITED STATES OF AMERICA.
______________________________/
ORDER
This matter is before the Court on Dion Fisher’s pro se
28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct
Sentence. (Civ. Doc. # 1; Crim. Doc. # 281). The United States
of America responded on August 11, 2023. (Civ. Doc. # 12).
Mr. Fisher filed a reply on March 10, 2024. (Civ. Doc. # 17).
The Motion is denied in part and deferred in part to the
extent explained below.
I.

Background
A grand jury indicted Mr. Fisher on 15 counts, charging

him with conspiring to manufacture, possess with intent to
distribute, and distribute 400 grams or more of fentanyl, in
violation of 21 U.S.C. § 846 (Count 1); possessing with intent
to distribute and distributing fentanyl, in violation of 21
U.S.C. § 841(a)(1) (Counts 2-4); possessing with intent to
distribute 40 grams or more of fentanyl, in violation of 21
1

U.S.C. § 841(a)(1) (Count 5); possessing with intent to
distribute 400 grams or more of fentanyl, in violation of 21
U.S.C. § 841(a)(1) (Count 6); possessing with intent to
distribute pentylone, in violation of 21 U.S.C. § 841(a)(1)
(Count 7); and engaging in illegal monetary transactions, in
violation of 18 U.S.C. §§ 1957 and 2 (Counts 9–16). (Crim.
Doc. # 1).
During the relevant periods of trial preparation and
trial, Mr. Fisher was represented by Kenneth Martin. Mr.
Martin filed a motion to suppress on Mr. Fisher’s behalf,
seeking to suppress items seized from his house and person.
(Crim. Doc. # 111). While Mr. Fisher conceded that there was
a search warrant for his residence, he contended that the
evidence

obtained

pursuant

to

the

search

warrant

should

nevertheless be suppressed because he was not detained in the
immediate vicinity of the premises and the length of his
detention during the search was unreasonable. (Id.). Indeed,
when the search warrant was served, Mr. Fisher was not inside
his residence. Rather, he was in an Uber, which police pulled
over in order to detain Mr. Fisher. Mr. Fisher was then held
in the back of a police car for hours while his residence was
searched. (Id. at 1-2).

2

The Magistrate Judge held a hearing on the motion to
suppress on April 15, 2019. (Crim. Doc. # 138). The Magistrate
Judge issued a Report and Recommendation, recommending that
the motion to suppress be denied because “law enforcement
legally seized the property from [Mr. Fisher’s] residence
pursuant to a valid search warrant” and, “regardless of
whether [Mr. Fisher] was detained in the immediate vicinity
of his residence during the search, law enforcement had
probable cause to arrest [Mr. Fisher] even before [the deputy]
stopped him that day.” (Crim. Doc. # 152 at 18). Mr. Fisher
failed to file an Objection to the Report and Recommendation.
The Court adopted the Report and Recommendation and denied
the motion to suppress on May 21, 2019. (Crim. Doc. # 172).
Using court funding, Counsel for Mr. Fisher had hired a
chemistry expert, Janine Arvizu, to review the reports and
testing methods of the DEA and Pinellas County laboratories
used by the government to test the drugs Mr. Fisher possessed.
(Crim. Doc. # 162 at 1; Crim. Doc. # 283 at 3-5). At an ex
parte hearing before the Magistrate Judge in early May 2019,
counsel for Mr. Fisher requested approval for additional
funding to bring Arvizu from New Mexico, where she lives, to
Tampa for a Daubert hearing and trial. (Crim. Doc. # 283 at
3). However, because of the death of Arvizu’s husband and a
3

broken arm, Arvizu had not provided further proffers or a
supplemental

report

to

defense

counsel.

(Id.

at

3).

Ultimately, the Magistrate Judge denied Mr. Fisher’s request
for additional funding to bring the expert to a Daubert
hearing and trial:
Well, I don’t think this is close. I mean, the
amount of money you are asking for to bring somebody
from New Mexico just doesn’t seem reasonable to me,
so I’m gonna deny the motion. I’ll note that —
because you have already gotten some approval from
the Court of Appeals and she’s given a report, so
it seems to me you can use what’s in that report
and what she’s told you to cross-examine the
Government experts when they go to introduce their
tests. But, otherwise, I’m gonna deny the motion.
(Id. at 9). Because counsel was unable to obtain additional
funding for the chemistry expert to testify at a Daubert
hearing or trial, the scheduled Daubert hearing to address
the admissibility of the chemistry expert was cancelled.
(Crim. Doc. ## 159, 162, 163).
The

case

then

proceeded

to

a

seven-day

jury

trial

beginning in late May 2019. During trial, Mr. Fisher’s codefendant,

Samuel

Blaine

Huffman,

and

some

of

his

co-

conspirators testified against him. (Crim. Doc. ## 186, 188,
191, 193, 194). No chemistry expert testified on Mr. Fisher’s
behalf.

Three

other

witnesses

4

are

also

relevant

here:

Detective Karl Gwynne, Diane Knott, and Roman Hernandez.
(Crim. Doc. # 193; Crim. Doc. # 194).
Gwynne had been inadvertently left off the government’s
witness list at trial, so Mr. Fisher’s counsel objected to
Gwynne’s testifying. (Crim. Doc. # 268 at 84-97). Because
Gwynne would be testifying only as an evidence custodian and
Mr. Fisher could not articulate any prejudice he would suffer
from the admission of Gwynne’s testimony, the Court overruled
Mr. Fisher’s objection. (Id. at 96). After the ruling, the
Court took a recess of almost an hour, which gave Mr. Fisher’s
counsel some time to prepare. Thereafter, Gwynne testified as
an evidence custodian for the non-drug evidence seized from
Mr. Fisher’s home, including receipts and records pertaining
to jewelry, cars, wire transfers, and bank accounts. (Id. at
108-182).
Diane Knott and Roman Hernandez also testified at the
trial. (Crim. Doc. # 272 at 110-187). Knott is a former IRSCI agent and supervisor who was employed as a financial
analyst with the U.S. Attorney’s Office at the time of trial.
She testified about her review of Mr. Fisher’s financial
records and the financial transactions underlying the money
laundering counts (Counts Nine-Sixteen). (Id. at 130-188).
Hernandez is an IRS employee who testified that he found no
5

tax records filed with the IRS for Mr. Fisher or Mr. Fisher’s
various companies. (Id. at 110-117). Counsel did not object
to the testimony of either Knott or Hernandez.
The jury ultimately found Mr. Fisher guilty of Counts
One-Six and Counts Nine-Sixteen. (Crim. Doc. # 200). He was
found not guilty of Count Seven, the charge of possession
with intent to distribute a mixture or substance containing
a detectable amount of pentylone. (Id. at 5).
For the sentencing and appellate phases, Mr. Fisher was
represented by Matthew Farmer. In advance of sentencing,
counsel
report,

submitted
including

multiple
to

objections

the

two-level

to

the

presentence

aggravating

role

enhancement for being an organizer or manager. (Crim. Doc. #
244 at 26-27). Counsel also filed a sentencing memorandum on
Mr. Fisher’s behalf, arguing that a guidelines sentence of
life imprisonment would be excessive. (Crim. Doc. # 248).
Although the co-defendant and three co-conspirators had all
pled guilty and all cooperated with the government in its
case against Mr. Fisher, counsel wrote that “a life sentence
for

Mr.

Fisher,

adjustment,

would

even

reflecting

constitute

an

an

aggravating

unwarranted

role

sentencing

disparity.” (Id. at 3). A life sentence for Mr. Fisher “would
effectively [be] four times more severe” than the most6

heavily punished co-conspirator, Mr. Morose, received (120
months’ imprisonment). (Id.).
During sentencing, counsel argued again that Mr. Fisher
should receive a lower sentence than life. (Crim. Doc. # 270).
He objected to the aggravating role enhancement, insisting
that Mr. Fisher was not more culpable than his co-defendant
and co-conspirators. (Id. at 12-13). The Court overruled this
objection. (Id. at 16). Counsel also emphasized the disparity
that would exist between Mr. Fisher and his co-defendant and
co-conspirators

(the

highest

sentence

for

which

was

120

months) if Mr. Fisher were given a 30- or 40-year sentence.
(Id. at 28-29). Counsel requested a sentence of 120 months’
imprisonment. (Id. at 29). The Court ultimately sentenced Mr.
Fisher

to

a

below

guidelines

sentence

of

360

months’

imprisonment on October 31, 2019. (Crim. Doc. # 250).
Mr. Fisher appealed. (Crim. Doc. # 252). On appeal,
counsel argued that Mr. Fisher’s motion to suppress should
have been granted and Gwynne should not have been allowed to
testify. (Crim. Doc. # 278); see also United States v. Fisher,
No. 19-14423, 2021 WL 6101255 (11th Cir. Dec. 21, 2021). The
Eleventh

Circuit

Court

of

Appeals

affirmed

Mr.

Fisher’s

conviction and sentence. (Id.). Mr. Fisher’s petition for

7

writ of certiorari was denied on April 25, 2022. (Crim. Doc.
# 280).
Now, Mr. Fisher seeks to vacate his conviction and
sentence, raising numerous grounds of ineffective assistance
of both trial and sentencing/appellate counsel. (Civ. Doc. #
1; Crim. Doc. # 281). He has filed his sworn declaration in
support of his Motion. (Civ. Doc. # 1-1). The United States
has responded (Civ. Doc. # 12), along with the affidavits
from Mr. Martin and Mr. Farmer. (Civ. Doc. # 12-1; Civ. Doc.
# 12-3). Mr. Fisher has replied. (Civ. Doc. # 17). The Motion
is ripe for review.
II.

Discussion
Mr. Fisher raises eleven grounds for relief in his 2255

Motion itself, as well as three construed grounds for relief
in his declaration. 1 All grounds raise claims of ineffective
assistance of either trial or appellate counsel. (Civ. Doc.
# 1). These claims have been timely raised and are cognizable.
(Civ. Doc. # 12 at 5-6). Mr. Fisher bears the burden of proof
and persuasion on every aspect of his claims. Beeman v. United

Mr. Fisher numbered his arguments to include two Ground
Fours and two Ground Sevens. For ease of reference, the
arguments will be referred to as the first and second of each
respective ground.
1

8

States, 871 F.3d 1215, 1223-24 (11th Cir. 2017); Rivers v.
United States, 777 F.3d 1304, 1316 (11th Cir. 2015).
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, Mr.
Fisher 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, Mr.
Fisher 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 professional judgment.” Id. at 1314 (internal
quotation marks omitted).
To satisfy Strickland’s second prong — prejudice — Mr.
Fisher must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
9

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. “[I]f a claim
fails to satisfy the prejudice component, the Court need not
make a ruling on the performance component.” Ortiz v. United
States, No 8:15-cr-409-VMC-JSS, 2017 WL 6021645, at *2 (M.D.
Fla. Jan. 11, 2017).
The Court will address each ground in turn. 2
A.

Ground One

In Ground One, Mr. Fisher argues that trial counsel, Mr.
Martin,

provided

ineffective

assistance

by

“fail[ing]

to

object to [Rule] 404(b) evidence being presented at trial.”
(Civ. Doc. # 1 at 2). He asserts that “[c]ounsel’s performance

The Court does not read Mr. Fisher’s reply as attempting to
raise any new grounds for relief. However, to the extent Mr.
Fisher’s reply (Civ. Doc. # 17) could be somehow construed as
raising additional grounds for relief, the Court declines to
consider such improperly raised grounds. 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
waives by failing to raise it until his reply brief.”
(citations omitted)).
2

10

fell

below

an

objective

standard

of

reasonableness

when

Counsel failed to object to the testimony of Ms. Diane Knott”
as

404(b)

evidence.

(Id.).

Mr.

Fisher

“contends

that

counsel’s deficient performance prejudiced him by allowing
404(b) character evidence of other crimes, wrongs, or acts
being admitted without objection, where the law prohibits the
use of such evidence being presented, unless a hearing was
held prior to its admission.” (Id.).
Similarly, in his declaration, Mr. Fisher raises the
failure of trial counsel to object to the testimony of IRS
employee Roman Hernandez. (Civ. Doc. # 1-1 at 4). He states:
“During the testimony of [] Hernandez, I continuously asked
my counsel to object to his testimony because it sounded like
he was testifying to other crimes, wrongs, or acts that may
have been committed by me. Counsel ignored me and failed to
object to his testimony and failed to cross examine the
witness.” (Id.). Thus, Mr. Fisher insists that counsel was
ineffective for not raising an objection under Rule 404(b) to
Hernandez’s testimony.
This argument fails as to both Knott and Hernandez.
Neither Knott nor Hernandez presented 404(b) evidence of
other wrongs at trial. Rather, the government is correct that
it did not present any 404(b) evidence at trial. (Civ. Doc.
11

# 14 at 13). The testimony of both Knott and Hernandez, which
reviewed Mr. Fisher’s tax and financial records, did not
concern other “wrongs.” This testimony was directly relevant
to proving that Mr. Fisher had committed money laundering —
charges at issue at trial. Indeed, Mr. Martin explains in his
affidavit that he did not object to Knott as a witness because
he “believed the testimony of [] Knott was admissible.” (Civ.
Doc. # 12-1 at 5).
Because

the

testimony

of

Knott

and

Hernandez

was

directly relevant to charges on trial, the Court would have
denied any objection to their testimony based on Rule 404(b)
as meritless. Thus, counsel was not ineffective for failing
to raise such an objection. 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.”). And Mr.
Fisher was not prejudiced by that failure. See 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.”).
The Motion is denied as to this Ground.
B.

Ground Two

Next, Mr. Fisher argues that “[c]ounsel’s performance
fell

below

an

objective

standard
12

of

reasonableness

when

Counsel failed to [n]egotiate a plea agreement that would
have minimized the sentencing exposure, instead of proceeding
to trial, which yielded a sentence of 30 years.” (Civ. Doc.
# 1 at 4). According to Mr. Fisher, “he had asked Counsel to
negotiate and see what the government was offering in terms
of a plea bargain.” (Id.). But, allegedly, “Counsel never
informed petitioner of what the government had offered in the
form of a plea bargain,” and “never presented a plea offer,
even after [Mr. Fisher] made a request to seek one.” (Id.).
Mr.

Fisher

declaration.

supports

(Civ.

Doc.

his
#

allegations

1-1).

Among

with

other

a

sworn

things,

he

declares: “During the time period of being represented by
counsel [Mr.] Martin, and right before trial, we discussed
the odds of winning in trial and losing. I asked counsel to
negotiate a plea agreement. I asked him to relay a proposal
that I am willing to plead guilty to several money laundering
charges in a plea deal that I only receive a five (5) year
prison sentence.” (Id. at ¶ 4). But, Mr. Fisher swears,
“counsel never asked the government, to [his] knowledge,
about

a

plea

bargain,

and

never

gave

[Mr.

Fisher]

any

suggested plea offers from the government.” (Id. at ¶ 5). He
maintains that “Counsel forced [him] to go to trial.” (Id.).

13

In response, the United States relies on the affidavit
of trial counsel, Mr. Martin, which rebuts Mr. Fisher’s Motion
and declaration. (Civ. Doc. # 12 at 7-9). Mr. Martin avers
that

he

“advised

Mr.

Fisher

that

[counsel]

had

been

in

criminal courts for over twenty years, in a variety of roles
(defense attorney, prosecutor, and judge) and this was the
strongest government case [counsel] had ever seen.” (Civ.
Doc. # 12-1 at 5). Mr. Martin “advised Mr. Fisher the evidence
against him was overwhelming and he should expect to be
convicted.” (Id.). According to Mr. Martin, “Mr. Fisher knew
it was his decision whether to plead guilty or go to trial”
and “knew [counsel’s] advice to him was to enter into a plea
agreement/plead guilty, cooperate with the government and do
everything he could to lessen his sentence.” (Id.). Yet, “Mr.
Fisher disregarded [counsel’s] advice and wanted to go to
trial, which is his right.” (Id.).
Furthermore, Mr. Martin swears that the “allegations
made in Ground Two of the Motion that Mr. Fisher asked me to
negotiate a plea agreement, find out what the government was
offering, and never informed Mr. Fisher about a plea agreement
are

false.”

(Id.

at

3).

Mr.

Fisher

never

asked

him

to

negotiate a plea agreement. (Id.). Rather, according to Mr.
Martin, “Mr. Fisher was adamant he did not want a plea
14

deal/bargain or to plead guilty to anything.” (Id.). Mr.
Fisher allegedly told counsel “on numerous occasions when we
discussed the government’s proffered plea agreement or plea
agreements in general he was not interested in any plea
agreement/bargain.” (Id.).
The Supreme Court has explained that “as a general rule,
defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.” Missouri v. Frye, 566
U.S. 134, 145 (2012). “[I]n order to establish prejudice, a
defendant must show a reasonable probability that but for
counsel’s ineffectiveness: (1) ‘the plea offer would have
been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances)’; (2)
‘the court would have accepted its terms’; and (3) ‘the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence
that in fact were imposed.’” Osley v. United States, 751 F.3d
1214, 1222 (11th Cir. 2014) (citation omitted).
The sworn statements of Mr. Fisher and Mr. Martin are
directly in conflict. If Mr. Fisher’s declaration is true,
then trial counsel’s performance was likely deficient, and
15

Mr. Fisher was likely prejudiced. The evidence is undisputed
that, in November 2018, the United States sent to Mr. Fisher’s
trial counsel a proposed plea agreement, under which Mr.
Fisher would agree to plead guilty to Counts One (conspiracy
to

distribute

controlled

substances)

and

Twelve

(money

laundering) and all other counts would be dismissed. (Civ.
Doc. # 12-2). Taking Mr. Fisher’s declaration as true, Mr.
Fisher

was

never

told

about

this

plea

offer

so

had

no

opportunity to accept it. (Civ. Doc. # 1-1 at 2). According
to Mr. Fisher, he “would have plead[ed] guilty to certain
criminal offenses listed in the indictment.” (Civ. Doc. # 1
at 4). Furthermore, according to him, Mr. Fisher wanted
counsel to convey to the government a plea offer under which
he would plead guilty to multiple counts of money laundering
if he would receive only a five-year sentence. (Civ. Doc. #
1-1 at 2). He alleges that counsel never conveyed his desired
plea terms to the government, which prevents the Court from
determining whether the government would have accepted such
a plea agreement. (Id.).
In sharp contrast, if Mr. Martin’s affidavit is true and
Mr. Martin conveyed the plea offer to Mr. Fisher, then Mr.
Fisher’s ineffective assistance of counsel claim would fail.
Under this version of events, Mr. Fisher was aware of the
16

plea offer but declined to accept that plea offer or any other
plea agreement.
Therefore, the Court defers ruling on the Motion as to
Ground Two so that an evidentiary hearing can be held on this
Ground. After hearing testimony at an evidentiary hearing,
the Court will be able to make the credibility determinations
necessary to resolve the dispute over this claim.
C.

Ground Three

In this Ground, Mr. Fisher argues that his trial counsel
was ineffective because “he failed to request a multiple
conspiracy jury instruction which prevented the jury from
considering the possibility that [Fisher] was part of a
smaller conspiracy, or even a buyers-seller relationship, and
not the larger conspiracy.” (Civ. Doc. # 1 at 4). Mr. Fisher
maintains that “the evidence presented during trial varied
impermissibly from that in the charging indictment,” such
that “the proper instructions to the jury . . . would have
placed reasonable doubt that as to whether [Mr. Fisher] was
actually involved in a conspiracy or a buy-sell agreement.”
(Id. at 4-5).
This claim fails. Trial counsel was not ineffective for
choosing

not

to

request

a

multiple

conspiracy

jury

instruction. “Generally, a multiple conspiracy instruction is
17

required where the indictment charges several defendants with
one overall conspiracy, but the proof at trial indicates that
a jury could reasonably conclude that some of the defendants
were only involved in separate conspiracies unrelated to the
overall conspiracy charged in the indictment.” United States
v. Calderon, 127 F.3d 1314, 1328 (11th Cir. 1997), holding
modified by United States v. Toler, 144 F.3d 1423 (11th Cir.
1998). Here, trial counsel did not request such instruction
because he “felt the evidence presented supported the counts
in the indictment with the exception of the count Mr. Fisher
was found not guilty.” (Civ. Doc. # 12-1 at 6). Trial counsel
“did not believe there was a variance issue with the jury
instructions and charging indictment.” (Id.).
The

Court

performance

was

is

not

deficient

persuaded
for

that

reasonably

trial

counsel’s

concluding

that

there was no basis to request a multiple conspiracy jury
instruction. See Card, 911 F.2d at 1520 (“Counsel cannot be
labeled ineffective for failing to raise issues which have no
merit.”). Nor is it likely that the Court would have agreed
to include a multiple conspiracy instruction in the jury
instructions in this case. There was no basis at trial to
reasonably conclude that Mr. Fisher was only involved in

18

smaller,

separate

conspiracies

unrelated

to

the

overall

conspiracy charged in the indictment.
The Motion is denied as to this Ground.
D.

First Ground Four

Next, Mr. Fisher asserts that trial counsel Mr. Martin
was

ineffective

for

failing

“to

‘specifically

write

objections’ within the time set by the court within fourteen
days

of

being

served

with

the

magistrate’s

report

and

recommendation.” (Civ. Doc. # 1 at 5). This prejudiced him,
according to Mr. Fisher, because he was “not [] able to appeal
the district court’s order regarding the Motion to Suppress
[] on the issues of Fourth Amendment protections.” (Id.).
This claim also fails. True, trial counsel did not file
an objection to the Magistrate’s Report and Recommendation,
which recommended that Mr. Fisher’s motion to suppress be
denied. By that failure to object, Mr. Fisher was only able
to challenge the ruling on the motion to suppress under plain
error review, though the appellate court found that Mr. Fisher
had abandoned that argument. (Crim. Doc. # 278 at 8-10).
Nevertheless,

Mr.

Fisher

was

not

prejudiced

by

the

failure to file an objection. No objection by counsel would
have altered this Court’s ruling on the motion to suppress,
nor led the appellate court to find that the evidence should
19

have been suppressed. As the Magistrate explained in his
Report and Recommendation (Crim. Doc. # 152), which this Court
adopted (Crim. Doc. # 172), there was no basis to exclude the
evidence from the search of Mr. Fisher’s residence based on
law enforcement’s holding Mr. Fisher in a police car for
multiple hours during the search. Again, the police searched
Mr. Fisher’s residence pursuant to a valid search warrant and
there was already probable cause to arrest Mr. Fisher before
the search. There simply were no grounds to exclude the
evidence

obtained

pursuant

to

the

search

warrant.

See

Winfield, 960 F.2d at 974 (“[A] lawyer’s failure to preserve
a meritless issue plainly cannot prejudice a client.”).
Furthermore, even if the evidence at issue in the motion
to suppress had been suppressed, Mr. Fisher still would have
been convicted. Much of the evidence against Mr. Fisher was
not obtained from the search of his person and residence (the
evidence he sought to suppress). See (Crim. Doc. # 266 at
186-221) (evidence that significant amounts of fentanyl in
various forms were found in Mr. Fisher’s storage unit); (Crim.
Doc. # 267 at 109-130) (testimony about McKinney’s controlled
call to Mr. Fisher and subsequent purchase of over 1,500
fentanyl pills from Mr. Fisher). For this reason, trial
counsel explained to Mr. Fisher that “because the motion [to
20

suppress] only related to the search of Mr. Fisher and his
house, it was not dispositive.” (Civ. Doc. # 12-1 at 3). Thus,
even if the motion to suppress had been granted, Mr. Fisher
has not established a reasonable probability of a different
outcome at trial.
To the extent Mr. Fisher also faults trial counsel for
not filing an interlocutory appeal of the denial of his motion
to suppress (Civ. Doc. # 1-1 at 5), this argument also fails.
There was no jurisdictional basis for the Eleventh Circuit
Court of Appeals to hear an interlocutory appeal of the nonfinal order denying Mr. Fisher’s motion to suppress. See 28
U.S.C. § 1291 (“The courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the
district courts of the United States.” (emphasis added));
United States v. Shalhoub, 855 F.3d 1255, 1260 (11th Cir.
2017)

(“We

apply

the

final

judgment

rule

with

‘utmost

strictness in criminal cases,’ unless the challenged order
falls within the collateral order doctrine, which permits
appellate

review

‘conclusively

of

an

determine[s]

interlocutory
the

disputed

order

that

(1)

question,’

(2)

‘resolve[s] an important issue completely separate from the
merits of the action,’ and (3) is ‘effectively unreviewable
on appeal from a final judgment.’” (citations omitted)).
21

Thus, trial counsel was not deficient for failing to file an
interlocutory appeal and Mr. Fisher was not prejudiced by
such failure.
The Motion is denied as to this Ground.
E.

Second Ground Four

In his second Ground Four, Mr. Fisher argues that his
trial counsel, Mr. Martin, was ineffective for “fail[ing] to
move

the

district

court

for

a

continuance

so

he

could

adequately prepare for [witness Detective Gwynne] that was
not on the witness list, and placed on the stand to testify
without proper notice from the government.” (Civ. Doc. # 1 at
5-6). Although Mr. Fisher insists that counsel should have
“asked for a continuance to better prepare for [Gwynne’s]
testimony”

(Id.),

he

fails

to

articulate

how

counsel’s

preparing for a longer time before cross-examining Gwynne
would have altered his trial. At most, Mr. Fisher seems to
think that if a continuance had been granted, counsel could
have better “articulate[d] to the court what harm could result
from

the

admission

of

Gwynne’s

testimony”

so

that

such

testimony would not be admitted — not an allegation that
counsel would have better cross-examined Gwynne if he had
obtained a continuance. (Id. at 6).

22

This argument fails. Trial counsel objected to Gwynne
being

permitted

to

testify

because

the

government

had

inadvertently left Gwynne off its witness list. (Crim. Doc.
# 268 at 84-97). The Court, however, overruled counsel’s
objection

and

approximately

held

that

hour-long

Gwynne

break

would

during

testify

which

after

counsel

an

could

prepare. (Id.). Mr. Fisher has not shown that counsel would
have somehow impeached Gwynne’s testimony if counsel had more
time to prepare for Gwynne’s testimony.
And, indeed, there’s no reason to think that Fisher was
prejudiced

by

counsel’s

not

obtaining

a

continuance

to

prepare for Gwynne’s testimony. As Mr. Martin explains in his
affidavit, trial counsel “was prepared for the witness . . .
primarily because he was simply an inventory witness for items
seized during a search.” (Civ. Doc. # 12-1 at 6).
Likewise,

to

the

extent

Mr.

Fisher

believes

Gwynne

should not have been permitted to testify because his motion
to suppress should have been granted (Civ. Doc. # 1 at 6),
any objection on the basis that the evidence about which
Gwynne testified should have been suppressed would have been
denied by the Court. The motion to suppress had been denied
by the Court and the Court would not have revisited that
decision at trial.
23

The Motion is denied as to this Ground.
F.
Next,

Ground Five
Mr.

Fisher

contends

that

trial

counsel,

Mr.

Martin, was ineffective for “fail[ing] to ask the court for
a continuance at the Daubert hearing.” (Civ. Doc. # 1 at 6).
According to Mr. Fisher,
Counsel was unprepared for trial and the testimony
given by the chemist for the government. Counsel’s
deficient performance prejudiced petitioner in
[the] Daubert hearing where had counsel made a
verbal motion for continuance, our chemist would
have been able to place reasonable doubt on the
government’s witnesses, and would have allowed
[him] to be better prepared for the expert
testimony from the government’s witnesses. (20
Chemist) Furthermore, Counsel failed to file an
interlocutory appeal asking the appeals court to
review the district court’s factual findings and
its legal conclusions, regarding the decision
rendered by the judge, at the Daubert hearing.
(Id.).
The chemist, Ms. Arvizo, whom Mr. Martin hired with Court
funding, had come “highly recommended by the Middle District
Federal Public Defender’s Office for both her expertise and
reliability.” (Civ. Doc. # 12-1 at 6). But two unfortunate
circumstances in Ms. Arvizo’s life, a serious fracture of her
arm and her husband’s death, resulted in her not providing
the additional proffers she was hired to provide. (Id. at 67). Mr. Martin explains in his affidavit that, after Ms.

24

Arvizo’s husband died in early May 2019, he “realized [that]
what [he] already had from her was what [he] had to work with
and that [he] should not expect anything from her in the near
future.” (Id. at 7). Trial counsel realized that he “needed
to prepare for Court knowing [he] would probably not receive
those proffers and [their] scheduled preparation session for
her testimony would probably not occur.” (Id.). Indeed, trial
counsel “did not receive those proffers” and he and the
chemist “did not have our scheduled telephonic preparation
call.”

(Id.).

Going

into

the

ex

parte

hearing

with

the

Magistrate to request additional funding, trial counsel “was
frustrated but tried to do the best [he] could with what [he]
had” and “tried to preserve the issue on the record as best
[he] could under the circumstances.” (Id.). At the ex parte
hearing,

the

Magistrate

denied

counsel’s

request

for

additional funding for the chemist.
Counsel

was

not

ineffective

for

not

requesting

a

continuance of the Daubert hearing. As an initial matter, no
Daubert hearing actually took place in this case. The reason
a Daubert hearing did not take place — and no merits ruling
on the government’s Daubert motion to exclude the chemist as
unqualified was issued — was not trial counsel’s failure to
request a continuance. As mentioned before, at an ex parte
25

hearing before the Magistrate, the Magistrate denied trial
counsel the additional CJA funding necessary for the chemist
to appear and testify at a Daubert hearing or trial. Although
counsel had shown the Magistrate the report the chemist had
given him along with his motion for additional funding, the
Magistrate

Judge

did

not

think

additional

funding

was

appropriate. (Crim. Doc. # 283 at 3-9). The Magistrate noted
that trial counsel could still use the information he learned
from his conferral with the chemist and the chemist’s earlier
report

to

government’s

inform

counsel’s

chemistry

cross-examination

experts.

(Id.

at

9).

It

of

the

is

pure

speculation whether, if the chemist had been able to provide
the

additional

proffers

to

counsel

to

present

to

the

Magistrate, the Magistrate would have granted the requested
funding.
While the situation with the chemist was unfortunate,
trial counsel was not ineffective in his handling of the
situation. He had conferred once with the chemist and had
obtained a report from her, even though the chemist never
provided the additional proffers she had promised. Counsel
properly attempted to obtain the additional funds necessary
to have the chemist testify at the Daubert hearing and, if
she were not excluded as an expert, at trial. Because that
26

request for the necessary additional funding was denied, a
continuance — rather than a cancellation of — the Daubert
hearing would not have made any difference to Mr. Fisher’s
case.

It

was

the

denial

of

trial

counsel’s

request

for

additional funding by the Court — rather than trial counsel’s
performance

—

that

prevented

a

chemistry

expert

from

testifying on Mr. Fisher’s behalf at trial. See (Crim. Doc.
# 159 at 1-2) (“The defense ability to be prepared for and
present evidence at the Daubert hearing was contingent on
approval of additional funding for an expert. . . . The
defense has no funds to pay the expert to prepare for and
testify at the Daubert hearing and at trial.”). Furthermore,
Mr. Fisher “provides no argument, or proof, that had there
been a continuance, the ‘chemist would have been able to place
reasonable doubt’ on the government’s chemist witnesses who
analyzed the seized controlled substances.” (Civ. Doc. # 12
at 21).
Mr.

Fisher

also

asserts

that

counsel

should

have

“file[d] an interlocutory appeal asking the appeals court to
review the district court’s factual findings and its legal
conclusions, regarding the decision rendered by the judge, at
the Daubert hearing.” (Civ. Doc. # 1 at 6); see also (Civ.
Doc. # 1-1 at 5). This argument also fails. There was no
27

jurisdictional basis for the Eleventh Circuit to hear an
interlocutory

appeal

of

the

Magistrate’s

non-final

order

about additional funding. See Shalhoub, 855 F.3d at 1260 (“We
apply the final judgment rule with ‘utmost strictness in
criminal cases,’ unless the challenged order falls within the
collateral order doctrine, which permits appellate review of
an interlocutory order that (1) ‘conclusively determine[s]
the disputed question,’ (2) ‘resolve[s] an important issue
completely separate from the merits of the action,’ and (3)
is

‘effectively

judgment.’”

unreviewable

(citations

on

omitted)).

appeal
Thus,

from
it

was

a

final
neither

deficient performance nor prejudicial for trial counsel to
not file such an interlocutory appeal.
The Motion is denied as to this Ground.
G.

Ground Six

According to Mr. Fisher, trial counsel, Mr. Martin, was
ineffective because he “failed to challenge the sufficiency
of the indictment regarding the charges his client was found
not guilty of.” (Civ. Doc. # 1 at 7). Mr. Fisher insists that
the Court would have dismissed the indictment as to Count
Seven, the one count for which the jury found Mr. Fisher not
guilty. (Id.). If this count had been dismissed pretrial, Mr.
Fisher believes he would have been “in a better position in
28

the negotiation stages for a plea bargain” and would have
received “a plea agreement that would have lessened his
sentencing exposure.” (Id.).
This argument fails. Counsel was not ineffective for not
moving to dismiss the indictment as to Count Seven because
such a motion would have been denied as meritless. See United
States v. Hinds, 2 F. App’x 420, 423 (6th Cir. 2001) (“Trial
strategy includes the decision not to file certain motions
if, after investigation, doing so would not be necessary or
advantageous.”). The indictment properly tracks the language
of

the

statute

for

Count

Seven

regarding

possession

of

pentylone. (Crim. Doc. # 1 at 5); see United States v.
Woodruff,

296

F.3d

1041,

1046

(11th

Cir.

2002)

(“[A]n

indictment is sufficient if it ‘(1) presents the essential
elements of the charged offense, (2) notifies the accused of
the charges to be defended against, and (3) enables the
accused to rely upon a judgment under the indictment as a bar
against double jeopardy for any subsequent prosecution for
the same offense.’” (citation omitted)). The fact that the
jury acquitted Mr. Fisher of this count does not support that
the indictment was improperly pled for this count.
Likewise, Mr. Fisher suffered no prejudice because such
a motion to dismiss would have been denied. See Winfield, 960
29

F.2d at 974 (“[A] lawyer’s failure to preserve a meritless
issue

plainly

cannot

prejudice

a

client.”);

Zeigler

v.

Crosby, 345 F.3d 1300, 1308-09 (11th Cir. 2003) (explaining
that the defendant had to show a reasonable probability that,
had a motion to dismiss the indictment been filed, it would
have been granted). Thus, the Motion is denied as to this
Ground.
H.
In

First Ground Seven
his

first

ground

challenging

appellate

counsel’s

performance, Mr. Fisher argues that appellate counsel, Mr.
Farmer, was ineffective for “fail[ing] to file a claim on
direct review that [Mr. Fisher’s] sentence [violated] the
Apprendi Rule, where the evidence did not bear sufficient
indicia of reliability to support his sentence of 360 months.”
(Civ. Doc. # 7-8). 3 His sentence was “a great disparity to

Although Mr. Fisher mentions Apprendi v. New Jersey, 530
U.S. 466 (2000), in this one sentence, he does not actually
raise a claim based on Apprendi. Indeed, the substance of
this Ground concerns the alleged sentencing disparity between
Mr. Fisher and his co-defendant and co-conspirators. This
does not relate to the rule announced in Apprendi. See Id. at
490 (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”). Furthermore, here, the jury
found Mr. Fisher guilty and found that his crimes involved
various controlled substances in varying amounts. (Crim. Doc.
# 200 at 1-5). Thus, Apprendi was not violated.
3

30

his co-defendant’s sentence” and this disparity “alone should
have prompted appellant counsel to submit the issue regarding
his client’s sentencing disparity.” (Id. at 8).
This

argument

fails.

Appellate

counsel,

who

also

represented Mr. Fisher at sentencing, raised the issue of the
sentencing

disparity

with

the

Court

in

his

sentencing

memorandum and at sentencing. (Crim. Doc. # 248; Crim. Doc.
# 270 at 28-29). Mr. Fisher faced a guidelines sentence of
life in prison, but the Court varied downward to 360 months’
imprisonment

largely

because

of

counsel’s

argument

about

sentencing disparities. (Crim. Doc. # 270 at 30-31, 33-34).
While the 360-month sentence is still significantly longer
than

the

sentences

Mr.

Fisher’s

co-defendants

and

co-

conspirators received, the disparity reflects that the codefendant and co-conspirators all cooperated significantly
with law enforcement and testified against Mr. Fisher, who
was an organizer of the drug conspiracy. (Id. at 28-29; Crim.
Doc. # 248 at 3).
Mr. Farmer avers in his affidavit: “Given both [the]
obvious

distinctions

between

[Mr.]

Fisher

and

his

co-

conspirators, and the fact that this Court mitigated the
disparity in sentences by a substantial variance from life to
360 months, I concluded the there was no reasonable basis to
31

believe that the appellate court could find that this Court
nonetheless committed reversible error by imposing a sentence
that was unlawfully disparate.” (Civ. Doc. # 12-3 at 4). The
Court agrees.
Considering

that

Mr.

Fisher

had

received

a

below-

guidelines sentence as a result of counsel’s argument about
the sentencing disparity, counsel was not ineffective for not
raising the sentencing disparity on appeal. See Card, 911
F.2d at 1520 (“Counsel cannot be labeled ineffective for
failing to raise issues which have no merit.”). An appellate
advocate does not have to raise every nonfrivolous issue.
Jones

v.

Barnes,

“effective

463

advocates

U.S.

745,

‘winnow

out’

753-54

(1983).

weaker

Rather,

arguments

even

though the weaker arguments may be meritorious.” Heath v.
Jones, 941 F.2d 1126, 1131 (11th Cir. 1991). Even if appellate
counsel is deficient, failure to raise an argument on appeal
is not prejudicial unless the neglected argument would have
a reasonable probability of success on appeal. Id. at 1132.
There was no such reasonable probability of success on appeal
here.
In short, Mr. Fisher has not proven that appellate
counsel

was

ineffective

for

not

raising

a

sentencing

disparity argument on direct appeal. Nor has Mr. Fisher shown
32

that

raising

this

argument

on

appeal

would

have

likely

resulted in a lower sentence, as necessary to establish
prejudice. The Motion is denied as to this Ground.
I.

Second Ground Seven

Next, in his second Ground Seven, Mr. Fisher contends
that

appellate

counsel,

Mr.

Farmer,

was

ineffective

for

“fail[ing] to frame the issue noted in Ground One of this
Motion.”

(Civ.

Doc.

#

1

at

8).

“[T]he

404(b)

evidence

presented in trial, without hearing, deprived [Mr. Fisher] of
the right to a fair trial and this issue should have been
raised on direct review.” (Id.). According to Mr. Fisher, he
was prejudiced by “not having the appeals court review the
issue.” (Id.).
The Court disagrees. Counsel was not ineffective for
failing to raise the 404(b) argument on appeal as to either
Knott or Hernandez. Because trial counsel had not objected to
the relevant witnesses’ testimony during trial, such argument
would have been subject to the harsh plain error standard of
review on appeal. And appellate counsel reasonably concluded
that he could not satisfy the plain error standard regarding
the alleged 404(b) testimony. See (Civ. Doc. # 12-3 at 5) (“I
did not raise this issue because doing so would have been
patently futile. . . . I reasonably concluded that I could
33

not

satisfy

analysis],

even

as

the

there

first

was

no

prong

[of

error

in

the

plain

admitting

error

Knott’s

testimony.”).
Furthermore, as the Court discussed in denying Ground
One, witnesses Knott and Hernandez did not present 404(b)
evidence. Their testimony went directly to the charged money
laundering counts. See (Civ. Doc. # 12 at 14) (“Neither Roman
Hernandez nor Diane Knott testified about 404(b) evidence.”);
see also (Civ. Doc. # 12-1 at 5) (trial counsel averring “I
believed the testimony of Ms. Knott was admissible”); (Civ.
Doc. # 12-3 at 6) (“Knott’s testimony was offered to support
the

money

laundering

offenses

that

were

charged

in

the

operative indictment. . . . The testimony was not extrinsic
Rule

404(b)

evidence,

but

intrinsic

evidence

directly

relevant to charged counts.”). So, the argument that these
witnesses presented impermissible Rule 404(b) evidence is
meritless and would have been rejected if counsel had raised
it on appeal. See Card, 911 F.2d at 1520 (“Counsel cannot be
labeled ineffective for failing to raise issues which have no
merit.”). The Motion is denied as to this Ground.
J.

Ground Eight

According to Mr. Fisher, appellate counsel, Mr. Farmer,
was ineffective because he “failed to present the issue
34

regarding the jury instruction which the jury was prevented
from considering whether [Mr. Fisher] was a part of a smaller
conspiracy, or buyers-seller relationship.” (Civ. Doc. # 1 at
8). Thus, this Ground is related to Ground Three.
This argument fails for the same reason as Ground Three.
It was reasonable for trial counsel not to request a multiple
conspiracies jury instruction. The Court likely would have
denied a request for such instruction.
Furthermore, because trial counsel did not request such
an instruction, appellate counsel would have had to satisfy
the harsh plain error standard of review in arguing that it
was

erroneous

for

the

Court

not

to

give

the

multiple

conspiracies instruction. (Civ. Doc. # 12 at 16). Appellate
counsel correctly concluded that there was “no reasonable
basis to believe that the absence of these instructions was
erroneous in the first place, and clearly no reasonable basis
to believe that this error, if it existed, was either plain
or obvious, or affected substantial rights.” (Civ. Doc. # 123 at 6). “In light of the standard pattern instruction this
Court provided, [appellate counsel] concluded in [his] best
professional judgment that [he] could satisfy none of the
three prongs of the plain error standard.” (Id.). Thus,

35

appellate counsel was not ineffective for failing to raise
this argument on direct appeal.
The Motion is denied as to this Ground.
K.

Ground Nine

Next, Mr. Fisher argues that appellate counsel, Mr.
Farmer, was ineffective for “fail[ing] to present the issues
regarding the Magistrate’s Report and Recommendation, and the
failure to respond by the prior attorney of record.” (Civ.
Doc. # 1 at 8). Thus, this ground is related to the first
Ground

Four.

According

to

Mr.

Fisher,

appellate

counsel

“could have written a claim of ineffective assistance of
counsel on this claim [on direct appeal] because the record
clearly shows that prior counsel did not file an objection
and the issues involves whether his client’s Fourth Amendment
rights were violated.” (Id.).
This

claim

fails.

As

an

initial

matter,

appellate

counsel could not have raised an ineffective assistance of
trial counsel claim on direct appeal. See United States v.
Millwood, 961 F.2d 194, 195 (11th Cir. 1992) (“[W]e do not
consider ineffective counsel claims on direct appeal from a
conviction.”); see also (Civ. Doc. # 12-3 at 7) (appellate
counsel acknowledging that he “could not” raise a claim of
ineffective assistance of trial counsel on direct appeal).
36

Thus, appellate counsel was not ineffective for not raising
such argument. See Card, 911 F.2d at 1520 (“Counsel cannot be
labeled ineffective for failing to raise issues which have no
merit.”). Furthermore, Mr. Fisher was not prejudiced by the
failure to do so.
Additionally, this claim fails for the same reason the
first Ground Four fails. The motion to suppress lacked merit
and would have been denied even if Mr. Fisher’s counsel had
filed an objection to the Report and Recommendation. For the
same reason the motion to suppress was denied, the appellate
court would not have reversed this Court’s ruling on the
motion to suppress.
The Motion is denied as to this Ground.
L.

First Construed Ground in Fisher’s Declaration

In his sworn declaration, Mr. Fisher includes multiple
allegations that do not appear to relate to the Grounds in
his

Motion.

In

an

abundance

of

caution,

the

Court

will

construe these additional allegations as additional grounds
for relief.
The

first

construed

Ground

relates

to

multiple

allegations of trial counsel’s supposed poor performance in
preparation for and during the hearing on the motion to
suppress. In his declaration, Mr. Fisher asserts that trial
37

counsel, Mr. Martin, had discussed with him “a plan of defense
which included him subpoenaing the traffic stop video, Google
maps

for

traffic

stop,

and

Uber

Driver

for

purposes

of

Suppression Hearing and Trial.” (Civ. Doc. # 1-1 at 1). But
counsel “never subpoenaed any of the foregoing.” (Id.). Mr.
Fisher continues:
At no time did counsel ever discuss with me a change
in plans that we agreed upon, instead, counsel
failed to subpoena the traffic stop video evidence
for purpose of suppression hearing. Nor did counsel
subpoena
the
Uber
driver
for
purposes
of
suppression hearing. Nor did counsel present the
Google maps for the traffic stop which would have
provided a clearer picture of distance of where the
traffic stop occurred, and the distance to the
address where the search and seizure occurred.
(Id. at 1-2).
Additionally,

Mr.

Fisher

alleges

that

he

wanted

to

testify at the evidentiary hearing to “explain [his] side of
what happened regarding the alleged traffic stop.” (Id. at
3). However, according to Mr. Fisher, counsel “would not allow
[him] the opportunity to take the witness stand when [Mr.
Fisher] requested to do so.” (Id.).
These arguments fail. Trial counsel was not ineffective
for making the strategic decision not to call the Uber driver
as a witness at the suppression hearing. The Uber driver was
the person from whose vehicle Mr. Fisher was taken by police

38

to be detained for the duration of the search of Mr. Fisher’s
residence. As trial counsel explains, “[a]fter reviewing the
law enforcement reports, discussing it with Mr. Fisher, and
visiting the scene, [he] saw the Uber driver as a cumulative
witness and not relevant to any contested issue.” (Civ. Doc.
# 12-1 at 4). This was a reasonable strategic choice for trial
counsel to make.
Additionally,

trial

counsel

reasonably

advised

Mr.

Fisher not to testify at the suppression hearing because (1)
trial counsel “did not think [Mr. Fisher] had anything to add
to

the

evidence

because

his

version

of

the

stop/arrest/detention/location did not vary in any material
or significant way from the law enforcement version,” (2)
“Mr. Fisher does not stay on point potentially opening the
door to all sorts of areas for cross examination,” and (3)
“he has the tendency to change his version of events.” (Id.
at 1-2).
Even assuming that counsel was ineffective in relation
to his presentation at the evidentiary hearing on the motion
to suppress, Mr. Fisher cannot show prejudice. As discussed
before regarding the failure to file an objection to the
Report and Recommendation, Mr. Fisher’s motion to suppress
lacked merit. There was no basis to suppress the evidence
39

taken from Mr. Fisher’s residence or his person. The search
of the residence was conducted pursuant to a valid search
warrant. And there was probable cause to arrest Mr. Fisher
before the search was conducted, so even if the detention of
Mr. Fisher during the search rose to the level of an arrest,
it was permissible.
Even if Mr. Fisher or the Uber driver had testified at
the hearing or his counsel had presented evidence from Google
maps or video of the traffic stop, the motion to suppress
still would have been denied. Thus, Mr. Fisher suffered no
prejudice. The Motion is denied as to this construed Ground.
See Winfield, 960 F.2d at 974 (“[A] lawyer’s failure to
preserve

a

meritless

issue

plainly

cannot

prejudice

a

client.”); Card, 911 F.2d at 1520 (“Counsel cannot be labeled
ineffective

for

failing

to

raise

issues

which

have

merit.”).
M.

Second Construed Ground in Fisher’s Declaration

In his declaration, Mr. Fisher avers the following:
On the subject of trial, counsel never subpoenaed
any witnesses who[se] testimony would be relevant
to the defense of the conspiracy charges, or the
illegal search and seizure of items presented
during trial. Counsel was asked by me to contact
the Uber Driver to testify to regarding his
detainment and mine. Counsel never contacted the
Uber Driver when he was requested to do so.

40

no

(Civ. Doc. # 1-1 at 2).
Mr. Fisher never specifically names the witnesses he
faults trial counsel, Mr. Martin, for not calling to testify.
Even as to the Uber driver in whose car Mr. Fisher was sitting
when

stopped

by

police

for

the

search

of

Mr.

Fisher’s

residence, Mr. Fisher does not provide a name. Mr. Fisher
also is unclear on exactly what these witnesses’ testimony
would

have

been.

He

does

not

identify

what

exculpatory

evidence the potential witnesses would have provided. See
Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007)
(explaining

that

“[o]rdinarily,

a

defendant’s

failure

to

present some evidence from the uncalled witness regarding
that witness’s potential testimony and willingness to testify
would

be

fatal

to

an

ineffective

assistance

of

counsel

claim”). Indeed, Mr. Fisher did not submit affidavits from
the

potential

witnesses

setting

forth

their

possible

testimony. See Streeter v. United States, 335 F. App’x 859,
864 (11th Cir. 2009) (holding that the district court did not
err in denying claim for ineffective assistance of counsel
when movant did not provide an affidavit setting forth the
testimony of the potential witness). Thus, his allegations
are conclusory and insufficient to establish either deficient
performance or prejudice. See Wilson v. United States, 962
41

F.2d 996, 998 (11th Cir. 1992) (per curiam) (“Conclusory
allegations

of

ineffective

assistance

are

insufficient.”

(citation omitted)).
Additionally,
typically

a

the

decision

to

call

strategic

decision

and

there

a

witness
is

a

is

strong

presumption that declining to call the witness was “sound
trial strategy.” Place v. United States, No. 09-10152-NMG,
2014 WL 2803740, at *3 (D. Mass. June 20, 2014); see also
Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978)
(“[C]omplaints of uncalled witnesses are not favored, because
the presentation of testimonial evidence is a matter of trial
strategy and because allegations of what a witness would have
testified are largely speculative.”). Given this, Mr. Fisher
has not met his burden of establishing that counsel was
ineffective. Indeed, regarding the Uber driver, trial counsel
explained his strategic decision not to call him as a witness:
“After reviewing the law enforcement reports, discussing it
with Mr. Fisher, and visiting the scene, I saw the Uber driver
as a cumulative witness and not relevant to any contested
issue.” (Civ. Doc. # 12-1 at 4). Trial counsel’s decision
regarding witnesses was reasonable.
The Motion is denied as to this construed Ground.

42

N.

Third Construed Ground in Fisher’s Declaration

Finally, Mr. Fisher also asserts in his declaration:
During the time periods of being represented by the
following attorney’s, Mark Rodriguez and Kenneth
Martin, I raised the issue regarding drugs being
found in [] my storage unit, in a Maserati that I
owned. The Maserati was returned to me 4 days after
the seizure. I asked all attorneys at each stage to
investigate my claim that the drugs found in the
Maserati were planted.
(Civ. Doc. # 1-1 at 5).
This claim fails. As an initial matter, “counsel need
not always investigate before pursuing or not pursuing a line
of defense. Investigation (even a nonexhaustive, preliminary
investigation) is not required for counsel reasonably to
decline

to

investigate

a

line

of

defense

thoroughly.”

Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002)
(citation omitted). “The decision whether to present a line
of defense, or even to investigate it, ‘is a matter of
strategy and is not ineffective unless the petitioner can
prove that the chosen course, in itself, was unreasonable.’”
Id. (citation omitted); see also Stephens v. United States,
14 F. Supp. 2d 1322, 1331 (N.D. Ga. 1998) (“A decision not to
investigate

a

potential

defense,

like

other

litigation

decisions, need only be reasonable to fall within the range
of professionally competent assistance.” (citation omitted)).

43

Here, Mr. Martin explained in his affidavit why he did
not pursue this theory: “In my review of the evidence, I did
not see a legitimate theory to accuse law enforcement of
planting

evidence

other

than

Mr.

Fisher’s

argument

that

because law enforcement had his car, they must have planted
evidence.” (Civ. Doc. # 12-1 at 7-8). And, indeed, there was
significant evidence of Mr. Fisher’s drug possession and
dealing besides the discovery of drugs in his Maserati.
There is no reason to think that the result of the trial
would have changed if this theory had been presented. In fact,
Mr. Fisher has presented no evidence to support the theory
that drugs were planted in his Maserati. Thus, this conclusory
allegation about the planted drugs theory is insufficient to
establish entitlement to relief. See Wilson, 962 F.2d at 998
(per

curiam)

(“Conclusory

allegations

of

ineffective

assistance are insufficient.” (citation omitted)).
This construed Ground is denied.
III. Evidentiary Hearing
As the Court readily determined that all of Mr. Fisher’s
Grounds besides Ground Two lack merit, no evidentiary hearing
is required as to those Grounds. 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
44

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 would prove that
his counsel performed deficiently and that he was prejudiced
by his counsel’s deficient performance.”).
However, an evidentiary hearing is needed on Ground Two
of the Motion. “Rule 8(c) of the Rules Governing § 2255
Proceedings provides that ‘[i]f an evidentiary hearing is
required, the judge shall appoint counsel for a movant who
qualifies for the appointment of counsel under 18 U.S.C. §
3006A(g)[.]’” Shepherd v. United States, 253 F.3d 585, 587
(11th Cir. 2001). Section 3006A “allows for the appointment
of counsel when the interests of justice so require and the
movant is financially unable to obtain representation.” Id.
To that purpose, the Court requests that Magistrate Judge
Wilson please appoint counsel to represent Mr. Fisher at the
evidentiary hearing.
IV.

Certificate of Appealability and Leave to Appeal In
Forma Pauperis Denied
As to the Grounds that the Court has denied, the Court

declines to issue a certificate of appealability because Mr.
Fisher has failed to make a substantial showing of the denial

45

of

a

constitutional

right

as

required

by

28

U.S.C.

§

2253(c)(2). Nor will the Court authorize Mr. Fisher 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). Mr. Fisher
shall be required to pay the full amount of the appellate
filing fee pursuant to Section 1915(b)(1) and (2).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Dion Fisher’s pro se 28 U.S.C. § 2255 Motion to Vacate,
Set Aside, or Correct Sentence. (Civ. Doc. # 1; Crim.
Doc. # 281) is DENIED in part and DEFERRED in part.

(2)

The Motion is denied as to Grounds One, Three, First
Four, Second Four, Five, Six, First Seven, Second Seven,
Eight, Nine, and all construed Grounds. Judgment on
these claims will not be entered at this time.

(3)

The

Court

defers

ruling

on

Ground

Two

pending

an

evidentiary hearing. The evidentiary hearing will solely
be held to address the merits of Ground Two, and the
Court will not permit Mr. Fisher to amend that Ground or
add additional grounds.
(4)

The Clerk is directed to set this case for an evidentiary
hearing.

46

(5)

Pursuant to Rule 8(c) of the Rules Governing § 2255
Proceedings, the Court finds that counsel should be
appointed to represent Mr. Fisher at the evidentiary
hearing. The Court asks that Magistrate Judge Wilson
please appoint counsel to represent Mr. Fisher.
DONE and ORDERED in Chambers in Tampa, Florida, this

29th day of August, 2024.

47