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Verdieu v. United States

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

June 15, 2017

BARRY FRANZ VERDIEU, 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 to Vacate, Set Aside, or Correct Sentence (Cv. Doc. #1; Cr. Doc. #141)[1] filed on June 27, 2014. The government filed a Response in Opposition to Motion (Cv. Doc. #6) on August 29, 2014. The petitioner filed a Reply (Cv. Doc. #7) on September 18, 2014.

         I.

         On July 6, 2011, a federal grand jury in Fort Myers, Florida returned a two-count Indictment (Cr. Doc. #3) charging petitioner and his co-defendant John Peterson Alexis in Count One with conspiracy to possess with intent to distribute oxycodone in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C), all in violation of Title 21, United States Code, Sections 846. In Count Two, petitioner and his co-defendant were charged with knowingly carrying a firearm and ammunition during and in relation to a drug trafficking crime, knowingly possessing the firearm and ammunition in furtherance of the drug trafficking crime identified in Count One, and knowingly aiding and abetting the carrying and possession in violation of Title 18, United States Code, Section 924(c)(1)(A)(I) and § 2.

         Petitioner proceeded to trial as to both counts, and co-defendant John Peterson Alexis proceeded to trial as to Count Two only. After a 3-day trial, the jury rendered a Verdict of guilty on both counts for petitioner, and as to the co-defendant on Count Two. (Cr. Doc. #78.)

         Prior to sentencing, trial counsel Robert P. Harris filed a Sentencing Memorandum and Request for Reasonable Sentence (Cr. Doc. #90). On April 23, 2012, the Court sentenced petitioner to a term of imprisonment of 60 months as to Count One, and a term of 60 months as to Count Two to be served consecutively to Count One, followed by a term of supervised release. (Cr. Doc. #94.) Judgment (Cr. Doc. #97) was filed on April 24, 2012, and a Notice of Appeal (Cr. Doc. #99) was filed the next day.

         The Court permitted attorney Robert P. Harris to withdraw, and Scott Robbins was appointed to represent petitioner on appeal. (Cr. Doc. #112.) On appeal, petitioner and his co-defendant both argued that the evidence at trial was insufficient to sustain the conviction as to Count Two. (Cr. Doc. #139.) On May 30, 2013, the Eleventh Circuit affirmed the conviction and sentence finding that the evidence was sufficient to convict under the “in furtherance of . . . . possesses prong” of 18 U.S.C. § 924(c)(1)(A), and the evidence at trial was sufficient to establish a nexus between the pistol and the drug transaction. (Id., pp. 5-6.)

         Petitioner's current motion was signed and filed by counsel on June 27, 2014. Since a petitioner “gets the benefit of up to 90 days between the entry of judgment on direct appeal and the expiration of the certiorari period[1], ” Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002), the motion was timely filed. See also 28 U.S.C. § 2255(f).

         II.

         Petitioner's two arguments focus on Count Two only, i.e., the carrying of a firearm in relation to a drug trafficking offense, or possession in furtherance of a drug trafficking offense, or knowingly aiding and abetting in the carrying or possession in violation of 18 U.S.C. § 924(c)(1)(A)(i) and § 2. Petitioner argues ineffective assistance of counsel for failure to call an essential witness (Carol Smith) to verify petitioner's testimony; and, for the failure to reasonably investigate and interview the witness (Carol Smith) to corroborate petitioner's testimony that he did not know that the gun was in the center console area of the vehicle.

         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 claim, a court need not address both Strickland prongs if the petitioner fails to satisfy either of them.” Kokal v. Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010) (citations omitted).

         The proper measure of attorney performance is simply reasonableness under prevailing professional norms considering all the circumstances. Hinton, 134 S.Ct. at 1088 (citations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. See also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to facts at the time of counsel's conduct). This judicial scrutiny is highly deferential, and the Court adheres to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90. To be objectively unreasonable, the performance must be such that no competent counsel would have taken the action. Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an attorney is not ineffective for failing to raise or preserve a meritless issue. United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992); Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).

         C. Factual Background

         On appeal, the Eleventh Circuit summarized the factual background as follows:

On June 22, 2011, Verdieu rented a Chevrolet Traverse sport utility vehicle from Enterprise Car Rental in West Palm Beach, Florida. Two days later, on June 24, Verdieu and Alexis drove the Traverse to the Edison Mall in Fort Meyers [sic] where Alexis had arranged to purchase 3, 000 oxycodone pills for $10, 500 from a confidential informant (Cl) cooperating with the Drug Enforcement Administration (DEA). DEA agents and local law enforcement officers were waiting for Verdieu and Alexis at the mall.
After parking the Traverse in the mall parking lot, Verdieu and Alexis entered the mall, where Alexis met the CI in the food court. When Alexis failed to persuade the CI to conduct the drug sale in the parking lot, Alexis and Verdieu returned to the Traverse so that Alexis could retrieve the cash. Verdieu then remained in the car while Alexis went back to the food court to finish the transaction.
At the food court Alexis and the CI prepared to exchange “a big wad of cash” for a bag of pills. The transaction was interrupted when Alexis “received a phone call from someone . . . and abruptly got up and . . . left.” Alexis returned to the Traverse, where Verdieu was waiting in the driver's seat, and got in the front passenger side.
At this point DEA agents moved in and arrested the pair. As agents were handcuffing Verdieu, one asked him if he had any guns. Verdieu responded that he had one in the back seat of the Traverse, in a laptop computer bag. Although the agents did not find the gun in the back seat or the laptop bag, they found a fully loaded .38 caliber semi-automatic pistol between the driver's seat and the front passenger seat, in the Traverse's open center console. The firearm was located alongside a partially unwrapped sandwich, an open bottle of water, a camera case, a phone charger, and a CD. The gun was positioned in such a way that it could be easily withdrawn from the Traverse's console by either the driver or the front passenger. The agents also found $10, 500 in Verdieu's pants pocket.

(Cr. Doc. #139, pp. 2-3); United States v. Verdieu, 520 F.App'x 865, 866 (11th Cir. 2013).

         During trial, Special Agent Price testified that the semiautomatic pistol was found in the console between the driver's seat and the passenger's seat of the vehicle rented by petitioner. (Cr. Doc. #117, pp. 192, 213.) The pistol was loaded, with the barrel facing the rear of the vehicle, and the magazine contained five rounds of ammunition in addition to the round that was chambered. (Id., pp. 193, 195.) Also in the center console were a bottle a water, a sandwich, a camera case, and a phone charger. (Id., p. 195.)

         An investigator with the Department of Agriculture Consumer Services, Division of Licensing, testified that petitioner applied for a concealed weapons permit on September 11, 2006, and was issued the permit on January 16, 2007. The permit was suspended on June 29, 2010, and notice was sent by certified mail to petitioner's listed address in West Palm Beach, Florida. (Cr. Doc. #118, pp. 54-55.) Avery Vaughn Milstead of First Choice Gun & Ammo testified that petitioner purchased the Jimenez .380 handgun and another gun from him in West Palm Beach, Florida, on September 11, 2010. (Id., pp. 79-81.)

         Petitioner admitted upon arrest that he had a firearm in the car, and indicated it was in his laptop bag. (Cr. Doc. #119, p. 36.) The vehicle was a rental car rented by petitioner because his fiancé was pregnant and she needed the car to take the kids to school while her car was being repaired. Petitioner testified he used the car on the day of the arrest because his fiancé was done with it, and he figured he could conduct his air conditioner related business and be back the next day. (Id., pp. 37-38.) As relevant here, petitioner further testified:

A. Well, the firearm was in my laptop bag and since the car was in the shop, we parked the car in our garage and that morning when she was taking the kids to school, she noticed that my laptop bag was in the back seat, so she removed the firearm and put it in the glove -- inside the center console so the kids wouldn't mess with it because they -- they go through my stuff at times. But it was ...

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