United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
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. Docs. #1, #2;
Cr. Doc. #47) filed on June 9, 2014. Petitioner moved to
supplement the record, which was granted, and the Motion for
Leave to Supplement the Record (Cv. Doc. #6) was accepted as
a supplement. The government filed a Response in Opposition
to Motion (Cv. Doc. #11) on August 11, 2014. The petitioner
filed a Traverse (Cv. Doc. #12) on September 2, 2014,
replying to the government.
October 3, 2012, a federal grand jury in Fort Myers, Florida
returned a six-count Indictment (Cr. Doc. #3) charging
petitioner with possession with intent to distribute over 28
grams or more of crack cocaine (Count One); three counts
(Counts Two, Four, and Five) of possession of a firearm and
ammunition by a convicted felon; one count of possession of
ammunition by a convicted felon (Count Six); and possession
with intent to distribute for hum consumption a quantity or
mixture containing MDMA (Count Three). On March 4, 2013,
petitioner appeared before the Magistrate Judge and entered a
plea of guilty on all counts. (Cr. Doc. #33.) The pleas were
accepted and petitioner was adjudicated guilty. (Cr. Doc.
sentencing, the Court determined that the Base Offense Level
was 26 because the offense involved 49.6 grams of crack
cocaine and 13.7 grams of MDMA, but petitioner's sentence
was enhanced under the career offender provisions of U.S.
Sentencing Guidelines Manual § 4B1.1. Petitioner was 24
when he committed the instant offense, one of the offenses
involves a controlled substance, and petitioner had at least
two prior felony convictions at the time for either a crime
of violence or a controlled substance offense, i.e. the sale
or delivery of cocaine and resisting an officer-flee elude
law enforcement officer with lights siren active. The
application of the career offender enhancement was
undisputed. This resulted in an Enhanced Total Offense Level
of 31 after deducting three levels for acceptance of
16, 2013, counsel filed a Sentencing Memorandum (Cr. Doc.
#39) seeking a downward departure for an over-representation
of petitioner's criminal history, and for due
consideration to the 18 U.S.C. § 3553(a) factors. The
Court granted the downward departure over the
government's objection finding that a Criminal History
Category VI substantially over-represented the seriousness of
petitioner's criminal history and departed to a Category
V. (Cr. Doc. #52.) This lowered the applicable guideline
range to 168 to 210 months of imprisonment. (Cr. Doc. #50, p.
10.) The Court also considered the § 3553(a) factors at
length, including petitioner's family history.
(Id., p. 27.) On June 17, 2013, the Court sentenced
petitioner to a term of imprisonment of 120 Months as to each
count, to be served concurrently, followed by a term of
supervised release. (Cr. Doc. #40.) Judgment (Cr. Doc. #42)
was filed on June 18, 2013.
did not file a direct appeal with the Eleventh Circuit, and
the conviction became final 14 days after the Judgment on
June 25, 2013. See Mederos v. United States, 218
F.3d 1252, 1253 (11th Cir. 2000). Petitioner timely filed his
Motion under § 2255 on June 9, 2014, and within one year
of his conviction and judgment becoming final. See
28 U.S.C. § 2255(f)(1).
September 1, 2015, the Court appointed counsel to review
petitioner's eligibility for a reduction in his sentence
under Amendment 782 of the U.S. Sentencing Guidelines. (Cr.
Doc. #139.) On April 7, 2016, after notice of a determination
that a motion would not be filed on behalf of petitioner
because he was sentenced as a career offender and not based
on the drug quantity table in U.S. Sentencing Guidelines
Manual § 2D1.1(c), the Court relieved the Federal Public
Defender as counsel of record. (Cr. Doc. #59.)
argues that his counsel was ineffective for not arguing that
Florida's drug statute does not contain an element of
“knowing”, and therefore the sale or delivery of
cocaine should not have counted to qualify petitioner for the
career offender enhancement. Petitioner further argues that
the conviction is not a “controlled substance
offense” because under the categorical approach, a
conviction under Fla. Stat. § 893.13(1) is not a drug
Evidentiary Hearing Standard
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). 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) (a hearing is not necessarily required whenever
ineffective assistance of counsel is asserted). To establish
entitlement to an evidentiary hearing, petitioner must
“allege facts that would prove both that his counsel
performed deficiently and that he was prejudiced by his
counsel's deficient performance.” Hernandez v.
United States, 778 F.3d 1230, 1232-33 (11th Cir. 2015).
Viewing the facts alleged in the light most favorable to
petitioner, the Court finds that the record establishes that
petitioner is not entitled to relief, and therefore an
evidentiary hearing is not required.
Ineffective Assistance of Counsel Standard
legal standard for ineffective assistance of counsel claims
in a habeas proceeding is well established. To prevail on a
claim of ineffective assistance of counsel, a habeas
petitioner must demonstrate both that (1) counsel's
performance was deficient because it fell below an objective
standard of reasonableness, and (2) prejudice resulted
because there is a reasonable probability that, but for the
deficient performance, the result of the proceeding would
have been different. Hinton v. Alabama, ___U.S.___,
134 S.Ct. 1081, 1087-88 (2014) (citing Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984) and
Padilla v. Kentucky, 559 U.S. 356, 366 (2010)).
“Because a petitioner's failure to show either
deficient performance or prejudice is fatal to a