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Taylor v. United States

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

May 12, 2017

KEVIN MENDEL TAYLOR, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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. Docs. #1, #2; Cr. Doc. #47)[1] 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.

         I.

         On 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. #36.)

         At 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 responsibility.

         On June 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.

         Petitioner 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).

         On 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.)

         II.

         Petitioner 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 trafficking offense.

         A. Evidentiary Hearing Standard

         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). 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.

         B. Ineffective Assistance of Counsel Standard

         The 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 Strickland ...


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