Zitron v. United States of America

Filing 24

ORDER granting 23 Motion for Reconsideration; denying 22 Motion for Reconsideration re 18 REPORT AND RECOMMENDATIONS; Withdrawing re 19 Order on Report and Recommendations and REAFFIRMING AND READOPTING re 18 REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence. No Certificate of Appealability Issued. Signed by Judge Robert N. Scola, Jr on 6/7/2017. (ail)

United States District Court
for the
Southern District of Florida
Harvey Zitron, Petitioner,
v.
United States of America,
Respondent.

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Civil Action No. 16-60410-Civ-Scola
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Order on Motions for Reconsideration
On May 1, 2017, the Court entered an Order Adopting Magistrate
Judge’s Report and Recommendation, which denied Petitioner Harvey Zitron’s
motion to vacate his sentence and directed the Clerk to close this case (ECF
No. 19). Zitron subsequently filed two motions for reconsideration, requesting
that the Court: (1) reconsider its Order Adopting Magistrate Judge’s Report and
Recommendation (ECF No. 23); and (2) reconsider its Order affirming Judge
White’s denial of Zitron’s request for production of documents (ECF No. 22).
The Court will address each motion in turn.
1. Motion for Reconsideration of Order Affirming Judge White’s
Report and Recommendation
After the Court entered its Order Adopting Magistrate Judge’s Report and
Recommendation (ECF No. 19), Zitron’s objections to the Report and
Recommendation were docketed. (Obj.’s, ECF No. 20.) Zitron subsequently filed
a motion for reconsideration asserting that his objections were timely filed
when placed in the prison mailbox on April 17, 2017. (Mot. for Reconsideration
at 2, ECF No. 23.) It appears that the delay in docketing Zitron’s objections was
due to the nature of sending mail while in the custody of the Bureau of Prisons.
(Id.) Therefore, it is ordered that Zitron’s Motion for Reconsideration (ECF No.
23) is granted, and the Court’s Order Adopting Magistrate’s Report and
Recommendation (ECF No. 19) is withdrawn.
Having reconsidered Judge White’s Report, Zitron’s Objections, the
record, and the relevant legal authorities, this Court finds Judge White’s Report
and Recommendation cogent and compelling. Zitron first objects to Judge
White’s failure to consider the “new evidence” that he offered in his
memorandum in support of the motion to vacate sentence, asserting that
Judge White viewed the evidence “with an eye toward blocking its
introduction.” (Obj.’s at 1-3.) The Court has reviewed the evidence, which
consists of an affidavit from Zitron’s son, Jordan Zitron, and an excerpt from

the transcript of Zitron’s sentencing hearing. (Mem. at 38-40, ECF No. 4.) As
Judge White noted in the Report, relief under § 2255 is available for
transgressions of constitutional rights and for “that narrow compass of other
injury that . . . would . . . result in a complete miscarriage of justice.” Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (internal quotations and
citations omitted). In order to show a complete miscarriage of justice, the
petitioner must show that the alleged constitutional violation “probably
resulted in the conviction of one who is actually innocent.” Murray v. Carrier,
477 U.S. 478, 496 (1986).
Zitron was convicted for, among other things, using Jordan Zitron’s
name and social security number to obtain credit cards without his
permission. U.S. v. Zitron, 810 F.3d 1253, 1257 (11th Cir. 2016). As Zitron
himself notes, the Eleventh Circuit held that the evidence adduced at trial was
sufficient to establish that Zitron acted without lawful authority in using credit
cards that he opened in Jordan Zitron’s name. (Mem. at 35.) The Eleventh
Circuit noted that the Government established that Zitron acted without lawful
authority in part through Jordan Zitron’s testimony that Zitron did not have
permission to use his identity. U.S. v. Zitron, 810 F.3d at 1260. Zitron asserts
that the affidavit that he has provided from Jordan Zitron demonstrates that he
is innocent of identity theft. (Obj.’s at 12.) However, the affidavit specifically
states that Jordan Zitron was not aware that Zitron had obtained credit cards
in Jordan Zitron’s name, and thus is consistent with his testimony at trial.
(Mem. at 38.) The excerpt from the sentencing hearing similarly does not
establish Zitron’s innocence. (Id. at 40.) Therefore, the “new evidence” provided
by Zitron is insufficient to undermine the Court’s confidence in the outcome of
the trial and does not establish that Zitron is entitled to relief.
Zitron next raises several objections to Judge White’s findings concerning
his ineffective assistance of counsel claims. (Obj.’s at 5-12.) Zitron’s objections
largely restate the arguments made in his petition. Although Zitron identified
several specific ways in which he believed his counsel’s performance was
deficient, the review of an attorney’s performance does not center around what
“is possible or what is prudent or appropriate but only [on] what is
constitutionally compelled.” Chandler v. United States, 218 F.3d 1305, 1313
(11th Cir. 2000) (en banc). As Judge White noted, the standard is not whether a
reasonable attorney would have acted differently, but rather whether the
attorney’s actions fell below an objective standard of reasonableness. (Report at
11 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984).) Zitron has
simply failed to demonstrate that his counsel’s performance fell below an
objective standard of reasonableness. In addition, Judge White correctly found
that Zitron failed to show that there is a reasonable probability that the

outcome of the trial would have been different but for his trial counsel’s alleged
errors. See Strickland, 466 U.S. at 694. Accordingly, the Court reaffirms and
readopts Judge White’s Report and Recommendation (ECF No. 18.)
2. Motion for Reconsideration of Order Affirming Judge White’s
Order Denying Request for Production of Documents
During the course of the proceedings in front of Judge White, Zitron filed
a Request for Production of Documents, requesting copies of several exhibits
from his trial (ECF No. 13). Judge White issued a paperless order denying
Zitron’s request for production of documents (ECF No. 14). Zitron objected to
Judge White’s decision on the basis that the order was “unaccompanied by
reasons,” and was issued in the form of an order rather than a
recommendation. (Obj.’s at 1-2, ECF No. 15). The Court affirmed Judge White’s
Order, noting that since the order concerned a non-dispositive matter, it was
appropriate for Judge White to enter an order rather than a recommendation
(ECF No. 17). On April 23, 2017, Zitron filed a motion for reconsideration (ECF
No. 22).
Zitron argues that 28 U.S.C. § 2250 requires the Clerk of the Court to
provide a petitioner, without cost, copies of documents that are part of the
record. (Mot. at 1.) However, § 2250 applies to petitioners that have been
granted leave to proceed in forma pauperis. Zitron did not move for leave to
proceed in forma pauperis; therefore, the statute is inapplicable. Zitron also
argues that a “post-conviction remedy § 2255 for production of documents
(discovery) request, does not constitute a pre-trial, non-dispositive matter . . . .”
(Mot. at 4-5.) Zitron asserts that his discovery request constituted a dispositive,
post-conviction matter and that Judge White therefore improperly issued an
order rather than a recommendation. (Id. at 5.) Although Zitron is correct that
his Motion to Vacate, Set Aside, or Correct Sentence is a post-conviction
remedy, his request for production of documents was “pretrial” in the sense
that it was prior to any trial or evidentiary hearing in this proceeding. Pursuant
to 28 U.S.C. § 636(b)(1)(B), Judge White was authorized to enter an order on
Zitron’s request for production of documents and, pursuant to § 636(b)(1)(A),
this Court was only required to review Judge White’s order for clear error.
However, even if the Court were to conduct a de novo review of Zitron’s
request for production of documents, it would affirm Judge White’s denial of
the request. Pursuant to the Rules Governing Section 2255 Proceedings for the
United States District Courts 6(a), a court may authorize discovery by a
petitioner for good cause. See also Deverso v. U.S., No. 2:09-660, 2011 WL
550205, at *21 (M.D. Fla. Feb. 9, 2011). With respect to § 2254 proceedings,
which have the same standard for discovery as § 2255 proceedings, the

Supreme Court has held that discovery should be permitted “‘where specific
allegations before the court show reason to believe that the petitioner may, if
the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief.’” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1969)). The Eleventh Circuit has further explained
that “good cause for discovery cannot arise from mere speculation.” Arthur v.
Allen, 459 F.3d 1310 (11th Cir. 2006) (per curiam) (holding that it was
insufficient for a petitioner to allege that “‘DNA testing could demonstrate that
the same person who raped [the victim] also physically assaulted her, that this
person’s blood was on her blouse, that his hair was found in the [victim’s]
residence, that he was in [the victim’s] 1981 Buick Rivera, and that this person
was not [the petitioner].”).
Zitron’s Request for Production of Documents explained that he believed
that a handwriting expert could use the trial exhibits to conduct an analysis of
Charles Schnabel’s handwriting, which would “undermine the notion that
Schnabel had signed all of the checks written to Schnabel’s alter ego, Charles
Sohrabel.” (Request for Production at 1-2.) This explanation is founded on
speculation. Moreover, even if a handwriting expert opined that Charles
Schnabel had not signed the checks written to Schnabel’s alter ego, Zitron has
failed to explain how such a finding would undermine his convictions for filing
false tax returns, using unauthorized credit cards, and identity theft relating to
the use of unauthorized credit cards. As the Eleventh Circuit noted, the
evidence at trial showed that Cynthia Gentner cashed many of the checks
written to Sohrabel on Schnabel’s behalf. See U.S. v. Zitron, 810 F.3d at 125657. Gentner then gave the cash to Zitron, who failed to report it on his income
tax filings. Id. at 1257. Zitron has not explained, and the Court is unable to
infer, how a finding that Sohrabel did not personally sign the checks would
demonstrate that Zitron did not file false tax returns.
Therefore, Zitron did not show good cause for his discovery request
because his explanation for the request was founded on speculation and he
failed to sufficiently explain how the handwriting expert would demonstrate
that he is entitled to relief.
3. Conclusion
Accordingly, it is ordered that Zitron’s motion for reconsideration of the
Court’s Order Adopting Magistrate Judge’s Report and Recommendation (ECF
No. 23) is granted, and the Court’s Order Adopting Magistrate’s Report and
Recommendation (ECF No. 19) is withdrawn. However, the Court reaffirms
and readopts Judge White’s Report and Recommendation (ECF No. 18).
Zitron’s motion to vacate sentence (ECF No. 1) is denied. The Court does not

issue a certificate of appealability. In addition, the Court denies the motion for
reconsideration of the Order affirming Judge White’s denial of Zitron’s Request
for Production of Documents (ECF No. 22). The Clerk shall close this case.
Done and ordered, at Miami, Florida, on June 7, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge