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 to
Vacate, Set Aside, or Correct Sentence (Cv. Doc. #1; Cr. Doc.
#141) 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.
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.
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.)
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.
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.,
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, ” Kaufmann v.
United States, 282 F.3d 1336, 1338 (11th Cir. 2002), the
motion was timely filed. See also 28 U.S.C. §
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
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
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
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).
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
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).
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.,
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.)
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 ...