United States District Court, M.D. Florida, Tampa Division
S. MOODY. JR. UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
section 2255 (CV Doc. 1) and the Government's Response CV
(Doc. 11). Having reviewed the Motion, Response, record in
the underlying case, and the relevant law, the Court
concludes the Motion should be denied.
August 2013, a United States Coast Guard law enforcement team
(“USCG”) observed a Jamaican fishing vessel,
named “Miss Tiffany, ” in the waters north of
Venezuela. The USCG saw the Miss Tiffany crew, of which
Petitioner was the captain, jettisoning bales of marijuana.
The USCG recovered the bales of marijuana, and seized
Petitioner and a co-defendant, both of whom were from Guyana.
September 2013, Petitioner was charged with conspiracy to
possess with intent to distribute 1, 000 kilograms or more of
a mixture or substance containing a detectable amount of
marijuana while on board a vessel subject to the jurisdiction
of the United States of America (Count I), and aiding and
abetting in the possession with intent to distribute 1, 000
kilograms or more of a mixture or substance containing a
detectable amount of marijuana while on board a vessel
subject to the jurisdiction of the United States of America.
(CR Doc. 1). Petitioner pleaded not guilty to the charges.
Stephen Baer represented Petitioner throughout his
proceedings. Counsel filed several motions challenging the
Government's jurisdiction to prosecute Petitioner and
other evidence in motions in limine. (CR. Docs. 144 and 150).
After the Court ruled on those motions, Petitioner told
Counsel that he wanted to change his plea. Magistrate Judge
Anthony Porcelli held a change of plea hearing. (CR. Doc.
142). That hearing is critical to Petitioner's claims in
the change of plea hearing, Petitioner said he no longer
wanted Mr. Baer to serve as his counsel. He told the Court he
was unhappy Mr. Baer had not challenged the Court's
jurisdiction. The Court explained that is exactly what Mr.
Baer had done. (CR Doc. 142, pp. 12-13). Petitioner then said
Mr. Baer told him he had to admit he knew about the
marijuana. The Court gave Mr. Baer an opportunity to respond,
and he explained that he was not telling his client to
falsely admit knowledge; instead, Mr. Baer explained he was
telling Petitioner that the Court was going to allow clear
evidence that Petitioner knew about the bales, and that the
jury would likely find that he knew about the bales. (CR Doc.
142, pp. 13-17). After explaining this to Petitioner, the
Mr. Baer is not telling you you have to plea. He will gladly
represent you at trial and is prepared to go forward to the
trial if that's what you want. But Mr. Baer would not be
doing his job if he didn't give you an opinion about the
facts of the case. In fact, I would fully expect that you
would later complain that if you learned that Mr. Baer
believed, based upon the facts, that the government could
succeed and he never told you, I would expect that you would
complain about that. You want your lawyer to tell you
candidly their assessment and evaluation of the case and that
is all he's given you, is his assessment of the facts.
That doesn't mean that's how it's going to play
out, that's his opinion based upon his experience and
based upon his review of the facts of the case.
(CR Doc. 142, pp. 16-17). After that, Petitioner decided to
have Mr. Baer represent him.
further discussion with the Court and Counsel at the hearing,
Petitioner decided he wanted to plead guilty. (CR Doc. 142,
pp. 21-22). The Government was then brought in and provided
the factual basis for its case, including that Petitioner
knew about the 1, 212 kilograms of marijuana aboard the Miss
Tiffany. (CR Doc. 142, pp. 24-27). When given a chance to
speak, Mr. Baer explained his issue with the Government's
factual basis of the weight of the marijuana bales, arguing:
That [1, 212 kilogram weight of the marijuana bales] actually
is inclusive of the packaging. And so while there were bales,
then the marijuana is also double wrapped, and so I don't
know that it actually is 1, 212 kilograms. When you take off
that double wrapping off of each of the bales, it may be
(CR. Doc. 142, p. 27). The Government argued it would prove
the weight was 1, 000 kilograms or more.
Court then began questioning Petitioner about the factual
basis and asked whether he knew there was marijuana aboard
the Miss Tiffany. Petitioner responded no. The Court then
refused to accept Petitioner's guilty plea based on
Petitioner's denial of the Government's factual
basis. (CR Doc. 142, pp. 28-29).
the Court would not accept the guilty plea, the case
proceeded to trial. Counsel argued extensively at trial that
the Government had not proved the weight of the marijuana
beyond a reasonable doubt. Counsel's planned strategy was
to argue the weight was below 1, 000 kilograms-a weight for
which Petitioner had not been charged-based on the assumption
that a jury finding that the bales weighed less than 1, 000
kilograms would result in a not guilty verdict. But once the
Court ruled during trial that the jury could find Petitioner
guilty of a lesser crime if it found the ...