Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Curbelo v. United States

United States District Court, M.D. Florida, Fort Myers Division

March 27, 2017

IVAN CURBELO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. 557)[1] filed on February 14, 2014. The government filed a Response in Opposition (Cv. Doc. #7). For the reasons set forth below, petitioner's motion is denied.

         I.

         On October 27, 2009, a federal grand jury returned a five-count Indictment against eleven defendants. (Cr. Doc. #104.) Petitioner, Ivan Curbelo, and others were charged in Count I with conspiring from April 2002 through October 27, 2009, to manufacture and to possess with intent to distribute 1, 000 or more marijuana plants and to distribute and to possess with intent to distribute 100 or more kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), (b)(1)(B)(vii) and 846. Count V charged petitioner and others with knowingly and intentionally manufacturing 100 or more marijuana plants with intent to distribute them on September 29, 2009, in violation of section 841(a)(1) and (b)(1)(B)(vii) and 18 U.S.C. § 2. (Cr. Doc. #104.) Petitioner was convicted by a jury of both counts. (Cr. Doc. #326.) The Court sentenced petitioner to serve the mandatory minimum term of imprisonment of ten years to be followed by five years of supervised release. (Cr. Doc. #420.)

         Petitioner filed a direct appeal raising five arguments: 1) the global-positioning-system (GPS) tracking evidence was obtained in violation of the Fourth Amendment; 2) trial counsel was ineffective for failing to move to suppress the GPS-tracking evidence; 3) the evidence was insufficient to support a sentencing enhancement for conspiracy to possess over 1, 000 plants; 4) the court violated the Confrontation Clause by admitting the translated transcripts; and 5) the court erred in not submitting the forfeiture allegations to the jury. Petitioner's conviction and sentence were affirmed. (Cr. Doc. #546.) Petitioner's petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit was denied. Curbelo v. United States, 134 S.Ct. 962, (U.S. 2014).

         Petitioner's timely § 2255 motion raises the same five grounds for relief that were raised on direct appeal. (Cv. Doc. #1; Cr. Doc. #557.) The United States argues that petitioner's challenge is not cognizable; all of petitioner's claims have been previously resolved by the Eleventh Circuit Court of Appeals; petitioner is procedurally defaulted on his claims; and the petition lacks substantive argument and otherwise fails on the merits. (Cv. Doc. #7.)

         II.

         Petitioner is not entitled to an evidentiary hearing. A district court shall hold an evidentiary hearing on a habeas petition “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28 U.S.C. § 2255(b). “[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (citation omitted). See also Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). However, 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.” Id. at 715. See also Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Here, even when the facts are viewed in the light most favorable to petitioner, he has not established that either trial counsel provided constitutionally ineffective assistance, or that he was otherwise deprived of a constitutional right. Therefore, the Court finds that an evidentiary hearing is not warranted in this case.

         III.

         As noted above, the petition raises the same five grounds that were raised and addressed on direct appeal. In fact, the “argument” section of the petition (Cv. Doc. #1, pp. 5-18) is identical to the argument section submitted in petitioner's direct appeal.[2] Reply Brief of Appellant, Ivan Curbelo, United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013) (No. 10-14665-E), 2012 WL 4321851 (C.A. 11).

         The Eleventh Circuit rejected petitioner's arguments with regard to Counts I, III, IV, and V. United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013). Specifically, the Eleventh Circuit found: 1) the district court did not err when it allowed the Government to present GPS-tracking evidence because petitioner waived his suppression claim by failing to file a motion to suppress, id. at 1266-67; 2) there was sufficient evidence to support petitioner's sentence enhancement in Count I, id. at 1269; 3) the admission of the transcripts was proper and did not violate the Confrontation Clause, id. at 1271-76; and 4) the petitioner was not entitled to have the forfeiture allegations submitted to a jury, id. at 1276-78. As to Count II, the Eleventh Circuit declined consideration of petitioner's ineffective assistance of counsel claim based on the record before it. Id. at 1267.

         This Court “is not required to reconsider claims of error that were raised and disposed of on direct appeal.” United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). If a claim has previously been raised on direct appeal and decided adversely to a defendant, it cannot be relitigated in a collateral attack under § 2255. Id. Therefore, petitioner may not now relitigate the claims that were raised and resolved in his direct appeal.

         IV.

         The only issue remaining for this Court's consideration is whether petitioner's trial counsel was ineffective for failing to move to suppress the GPS-tracking evidence. For the reasons set forth below, the Court finds that petitioner ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.