King v. United States of America

Filing 37

ORDER OF DISMISSAL: The Amended Motion,DE 20 , is DISMISSED in part and DENIED in part. Any request for a certificate of appealability is DENIED. The Clerk of Court is directed to CLOSE this case. Signed by Judge Beth Bloom on 11/21/2022. See attached document for full details. (mab)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23858-BLOOM
(Case No. 19-cr-20272-BLOOM)
MATTHEW ALEXANDER KING,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

/
ORDER OF DISMISSAL

THIS CAUSE is before the Court on remaining Grounds Four and Six of Matthew
Alexander King’s (“Movant”) pro se Amended Motion Under 28 U.S.C. § 2255, ECF No. [20]
(“Amended Motion”), raising ineffective assistance and due process challenges to his underlying
criminal conviction in Case No. 19-cr-20272-BLOOM. The Court has carefully considered the
Amended Motion, Respondent’s Response and Supplemental Response, the record in this case,
the applicable law, and is otherwise fully advised. For the reasons set forth below, the Court
dismisses Ground Four and denies Ground Six of the Amended Motion.
I.

BACKGROUND
On October 12, 2022, the Court issued an Order denying the Amended Motion on all

grounds except Grounds Four and Six. See ECF No. [35]. In Ground Six, Movant asserts that
his attorney was ineffective for failing to file a notice of appeal after Movant instructed him to
do so. See ECF No. [20-1] at 10-11. The Court noted that an evidentiary hearing might be
necessary on this ground; however, because Respondent did not address Ground Six in its
Response, the Court ordered Respondent to file a memorandum of fact and law addressing the

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merits of Ground Six and the issue of whether an evidentiary hearing is warranted. See ECF No.
[35] at 10. On November 9, 2022, Respondent filed a Supplemental Response asserting that
Movant is not entitled to an evidentiary hearing. See ECF No. [36]. The Supplemental Response
also contains an affidavit from Movant’s counsel detailing his discussions with Movant about
his appellate rights as well as a letter memorializing their conversations. See ECF No. [36-1].
While counsel did “not believe that we can advance a meritorious appeal,” he informed that “if
you instruct me to file a notice of appeal, you have a right to do so.” Id. at 4. In response, Movant
sent his attorney a handwritten letter in which he agrees with his attorney’s recommendation
and concedes that he did not want to file a notice of appeal. See ECF No. [36-1] at 6.
The Court further ordered that, on or before November 10, 2022, Movant submit a
declaration and any supporting evidence for his claim in Ground Six. See ECF No. [35] at 10–
11. The Court provided Movant with specific instructions and cautioned that failure to comply
will result in dismissal of Ground Six as insufficiently plead. See id. To date, Movant has not
complied with the Court’s Order, nor has he requested additional time to do so.
II.

LEGAL STANDARD
A.

Compliance with Court Orders

The Eleventh Circuit has explained that “[a] district court has inherent authority to manage
its own docket ‘so as to achieve the orderly and expeditious disposition of cases.’” Equity Lifestyle
Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F. 3d 1232, 1240 (11th Cir. 2009)
(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Such authority includes the power to
dismiss a case for failure to prosecute or for failure to comply with a court order under Fed. R.
Civ. P. 41(b). Id. “The legal standard to be applied under Rule 41(b) is whether there is a clear
record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth

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v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (internal quotation marks omitted); accord Gratton
v. Great Am. Commc’ns, 178 F .3d 1373, 1374 (11th Cir. 1999); see also Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (“While dismissal is an extraordinary remedy, dismissal upon
disregard of an order, especially where the litigant has been forewarned, generally is not an abuse
of discretion.”) (citing State Exch. Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982)).
B.

Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees criminal defendants
the right to assistance of counsel during criminal proceedings. See Strickland v. Washington, 466
U.S. 668, 684-85 (1984). When assessing counsel’s performance under Strickland, the Court
employs a strong presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth
Amendment does not guarantee the right to perfect counsel; it promises only the right to effective
assistance[.]” Burt v. Titlow, 571 U.S. 12, 20 (2013). “Where the highly deferential standards
mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential
form of review that asks only ‘whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)
(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate
both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the
deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also
Harrington, 562 U.S. at 104.
To establish deficient performance, the petitioner must show that, considering all
circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent

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assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting
Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and
facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 69091. The court’s review of counsel’s performance should focus on “not 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) (footnote omitted; quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)). Counsel is not ineffective for failing to raise non-meritorious issues, see
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required to present every
non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).
Regarding the prejudice component, “[t]he defendant 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. A court need not address both prongs of Strickland
if the defendant makes an insufficient showing on one of the prongs. See id. at 697; Brown v.
United States, 720 F.3d 1316, 1326 (11th Cir. 2013).
The Strickland test also applies to claims of ineffective assistance based on counsel’s
failure to file an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). If counsel
disregards specific instructions from a defendant to file an appeal, then counsel acts in a manner
that is professionally unreasonable. See id. at 477 (citing Rodriquez v. United States, 395 U.S. 327
(1969); other citation omitted).
Even if a defendant does not specifically request counsel to file an appeal, an attorney
nonetheless has a constitutional duty to consult with his client about an appeal when: (1) “a rational
defendant would want to appeal,” or (2) “this particular defendant reasonably demonstrated to

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counsel that [s]he was interested in appealing.” Id. at 480 (alteration added). When determining
whether a rational defendant would want to appeal, relevant factors include whether the conviction
follows a guilty plea, whether the defendant received the sentence bargained for as part of a plea
agreement, whether the plea agreement waived appellate rights, and whether there are nonfrivolous
grounds for appeal. See id.; see also Otero v. United States, 499 F.3d 1267, 1270 (11th Cir. 2007).
A guilty plea both “reduces the scope of potentially appealable issues” and indicates that “the
defendant seeks an end to judicial proceedings.” Flores-Ortega, 528 U.S. at 480.
III.

DISCUSSION
A.

Ground Six

Movant asserts that his attorney was ineffective for failing to file a notice of appeal after
Movant instructed him to do so. See ECF No. [20-1] at 10-11. Movant’s bare allegation is belied
by the record. The Supplemental Response makes clear that not only did counsel advise Movant
of his right to appeal and assure Movant that he would file a notice of appeal if requested, but
counsel also reduced these discussions to writing. See generally ECF No. [36]. In a handwritten
response, Movant agreed with his attorney’s recommendation and conceded that he did not want
to file a notice of appeal. See ECF No. [36-1] at 6. The Court finds counsel’s affidavit, letter, and
Movant’s handwritten response to be credible. Movant was ordered to submit a declaration to
support his allegation yet failed to do so. Based on his non-compliance, no evidentiary hearing
would be warranted based upon Movant’s non-compliance with a court order. See Moon, 863 F.2d
at 837; see also Hall v. United States, No. 9:19-cv-81334-RLR at 10 (S.D. Fla. Oct. 26, 2020)
(finding that movant’s failure to comply with the court’s order provided grounds for not
conducting an evidentiary hearing and denying the motion to vacate based on movant’s “bare
allegation without specific, sworn facts and documentary evidence” that movant told his attorney

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to file a notice of appeal) report and recommendation adopted, 2021 WL 243795 (S.D. Fla. Jan.
25, 2021).
However, rather than dismissing, the Court addresses the merits of Ground Six. As
discussed above, Movant’s claim is undermined by counsel’s affidavit, letter, and handwritten
response from Movant. His bare allegation, without specific, sworn facts and documentary
evidence of his communications with counsel, is insufficient to satisfy the Strickland standard for
ineffective assistance of counsel. Movant’s failure to establish deficient performance is fatal to his
claim of ineffective assistance. See Strickland, 466 U.S. at 697 (A court need not address both
prongs of Strickland if the defendant makes an insufficient showing on one of the prongs.).
Accordingly, Ground Six is denied.
B.

Ground Four

Movant claims that his due process rights were violated by Respondent’s failure to disclose
exculpatory evidence. See ECF No. [20] at 8. His claims focus entirely on A.G. He asserts that he
was denied information concerning A.G.’s criminal history, promises of a sentence reduction in
exchange for cooperation, and misconduct as a cooperating witness in an unrelated case. See id.
Respondent argues that this ground is procedurally defaulted as it was not raised on direct
appeal. See ECF No. [32] at 6-7. Movant also concedes that he did not raise this issue on direct
appeal. See ECF No. [20] at 8. “[A] collateral challenge may not do service for an appeal.” United
States v. Frady, 456 U.S. 152, 165 (1982). “Once the defendant’s chance to appeal has been waived
or exhausted,” courts “are entitled to presume that [the defendant] stands fairly and finally
convicted.” Id. at 164. Having reviewed the record the full, the Court agrees with Respondent that
Ground Four is procedurally defaulted.

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“Where a defendant has procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in habeas only if the defendant can first demonstrate either cause
and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622
(1998).
To demonstrate “cause and prejudice,” Petitioner must show that “some objective factor
external to the defense impeded the effort to raise the claim properly in the state court[,]” and that,
had the claim been properly raised, “there is at least a reasonable probability that the result of the
proceeding would have been different.” Harris v. Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688
(11th Cir. 2017).
In contrast, the actual innocence exception can only be met when the petitioner provides
new evidence showing that “it is more likely than not that no reasonable juror would have
convicted the petitioner.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)). Petitioner bears the sole burden of proving that either one of
these exceptions would excuse a procedural default. See Gordon v. Nagle, 2 F.3d 385, 388 (11th
Cir. 1993) (“A defendant has the burden of establishing cause and prejudice.”); Arthur v. Allen,
452 F.3d 1234, 1245 (11th Cir. 2006) (“The petitioner must support the actual innocence claim
with new reliable evidence[.]”) (cleaned up).
Movant fails to meet his burden. Regarding actual innocence, the Court assumes the
reader’s familiarity with its October 12, 2022 Order. Therein, the Court denied Movant’s actual
innocence claims noting that “Movant was caught on video committing the crimes charged and he
admitted to the conduct before the Court.” ECF No. [35] at 7. Substantively, Movant is not actually
innocent. Moreover, there is no cause for Movant’s default, nor can he show prejudice.
Accordingly, Ground Four is dismissed as procedurally defaulted.

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C.

Evidentiary Hearing

A district court is not required to hold an evidentiary hearing where the petitioner’s
allegations are affirmatively contradicted by the record, or the claims are patently frivolous. See
Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002). The Court finds the claims in Grounds
Four and Six to be patently frivolous and that the motion and the files and records of the case
conclusively show that Movant is not entitled to relief. See 28 U.S.C. § 2255(b). Therefore,
Movant’s request for an evidentiary hearing is denied.
D.

Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his petition for writ of
habeas corpus has no absolute entitlement to appeal, and to do so, must obtain a certificate of
appealability. See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). Here,
Movant fails to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Accordingly, upon consideration of the record, the Court denies the issuance of a
certificate of appealability.
IV.

CONCLUSION
Having carefully reviewed the record and governing law, it is ORDERED AND

ADJUDGED that the Amended Motion, ECF No. [20], is DISMISSED in part and DENIED in
part. Ground Four is DISMISSED as procedurally defaulted. Ground Six is DENIED. Any
request for a certificate of appealability is DENIED, and an evidentiary hearing is DENIED. All
deadlines are TERMINATED, and any pending motions are DENIED as moot. The Clerk of
Court is directed to CLOSE this case.

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Case No. 21-cv-23858-BLOOM
DONE AND ORDERED in Chambers at Miami, Florida, on November 21, 2022.

Copies to:

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Counsel of Record
Matthew Alexander King
17576-104
Marion-USP
United States Penitentiary
Inmate Mail/Parcels
Post Office Box 1000
Marion, IL 62959
PRO SE

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