United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED STATES DISTRICT JUDGE.
case is before the Court on Petitioner Alfredo Martinez
Riquene's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to
Vacate). The United States has responded (Civ. Doc.
6, Response), and Riquene has replied (Civ. Doc. 7, Reply).
to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing
Section 2255 Proceedings, the Court has considered the need for
an evidentiary hearing and determines that an evidentiary
hearing is not necessary to resolve the merits of this
action. See Aron v. United States, 291 F.3d 708,
714-15 (11th Cir. 2002) (an evidentiary hearing on a §
2255 petition is not required when the petitioner asserts
allegations that are affirmatively contradicted by the record
or patently frivolous, or if in assuming the facts that he
alleges are true, he still would not be entitled to any
relief); Holmes v. United States, 876 F.2d 1545,
1553 (11th Cir. 1989) (a petitioner's ineffective
assistance claim can be dismissed without an evidentiary
hearing when the petitioner alleges facts that, even if true,
would not entitle him to relief); Dickson v.
Wainwright, 683 F.2d 348, 351 (11th Cir. 1982)
(“On habeas a federal district court need not conduct
an evidentiary hearing if it can be conclusively determined
from the record that the petitioner was not denied effective
assistance of counsel.”); Patel v. United
States, 252 F. App'x 970, 975 (11th Cir.
2007).For the reasons set forth below,
Riquene's Motion to Vacate is due to be denied.
January 13, 2011, a grand jury sitting in the Middle District
of Florida indicted Riquene on one count of engaging in a
commercial sex act with a minor, in violation of 18 U.S.C.
§ 1591 (Count One), one count of producing child
pornography, in violation of 18 U.S.C. §§ 2251(a)
and (e) (Count Two), one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)
(Count Three), and one count of making false statements to
the Federal Bureau of Investigation (FBI), in violation of 18
U.S.C. § 1001 (Count Four). (Crim. Doc. 36, Superseding
Indictment). The charges stemmed from the arrest of Riquene
for videotaping himself having sex with A.B., an underage
female who was working as a prostitute at the time.
moved to suppress incriminating statements he made to law
enforcement officers, arguing that the officers obtained the
statements in violation of Miranda v. Arizona, 384
U.S. 436 (1966). (Crim. Doc. 52, Motion to Suppress). United
States Magistrate Judge Thomas E. Morris conducted an
evidentiary hearing (Crim. Doc. 60, Suppression Hearing
Transcript) (“Suppression Tr.”), and issued a
Report and Recommendation suggesting that the Court deny the
Motion to Suppress (Crim. Doc. 68, Report and Recommendation)
(“Suppression R&R”). Judge Morris recommended
that the Court conclude that Riquene was not in custody when
the officers questioned him and that Riquene voluntarily
spoke with the officers. After considering objections to the
Suppression R&R, the Court adopted Judge Morris's
recommendation and denied the Motion to Suppress. (Crim. Doc.
79, Order Adopting Suppression R&R).
trial, Riquene moved to sever Count Three (Crim. Doc. 71) and
the United States moved to dismiss Count One (Crim. Doc.
118). The Court granted both motions (Crim. Doc. 77, Crim.
Doc. 119), such that Riquene proceeded to trial only on
Counts Two and Four of the Superseding Indictment (for
production of child pornography and making false statements
to the FBI). After a three-day trial, the jury found
Riquene guilty of both charges. (Crim. Doc. 140, Jury
sentencing, the Court calculated Riquene's total offense
level under the United States Sentencing Guidelines to be 38,
and his Criminal History Category to be I, yielding an
advisory sentencing range of 235 to 293 months in prison.
(Crim. Doc. 189, Sentencing Transcript at 16-17)
(“Sent. Tr.”). The Court ultimately sentenced Riquene
to a term of 235 months in prison, followed by concurrent
terms of 10 years of supervised release for each conviction.
(Crim. Doc. 166, Judgment).
filed a timely appeal, in which he argued (1) that the Court
erred in denying his Motion to Suppress; (2) the Court
violated his right to due process by preventing him from
presenting a mistake-of-age defense; (3) the Court erred in
admitting videos of him having sex with two adult women; and
(4) the Court erred in applying the § 3C1.1
obstruction-of-justice enhancement. United States v.
Riquene, 552 F. App'x 940, 941-46 (11th Cir. 2014).
The Eleventh Circuit Court of Appeals rejected every argument
and affirmed Riquene's conviction and sentence.
Id. The United States Supreme Court denied
Riquene's petition for certiorari review. Riquene v.
United States, 134 S.Ct. 2683 (2014).
Riquene's Motion to Vacate
March 2, 2015, Riquene timely filed the instant Motion to
Vacate. In it, he raises five claims of ineffective
assistance of counsel: (1) that counsel was ineffective for
failing to argue that the Court improperly shifted the burden
of proof to Riquene to show that he did not consent to
officers entering his home without a warrant; (2) counsel
failed to cite controlling authority in support of the
argument that the officers violated Riquene's
Miranda rights; (3) counsel failed to argue that 18
U.S.C. § 2251(a) includes a mens rea
requirement with respect to the victim's age; (4) counsel
failed to argue that § 2251(a) was unconstitutional as
applied to him because Riquene “reasonably attempted to
ascertain the prostitute's age, ” and (5)
alternatively, counsel failed to appreciate the strict
liability nature of the production offense, and was therefore
ineffective for not pushing Riquene to enter an open guilty
plea to the production charge.
after filing the Motion to Vacate, Riquene filed a
“Motion to Amend § 2255 Motion to Vacate”
(Civ. Doc. 5, Motion to Amend), in which he sought to raise a
sixth claim of ineffective assistance. Riquene asserts that
trial counsel “was ineffective for not allowing
[Riquene] to testify on his own behalf in front of the jury
during trial.” Id. at 1.
to Title 28, United States Code, Section 2255, a person in
federal custody may move to vacate, set aside, or correct his
sentence. Section 2255 permits such collateral challenges on
four specific grounds: (1) the imposed sentence was in
violation of the Constitution or laws of the United States;
(2) the court did not have jurisdiction to impose the
sentence; (3) the imposed sentence exceeded the maximum
authorized by law; or (4) the imposed sentence is otherwise
subject to collateral attack. 28 U.S.C §2255(a) (2008).
Only jurisdictional claims, constitutional claims, and claims
of error that are so fundamentally defective as to cause a
complete miscarriage of justice will warrant relief through
collateral attack. United States v. Addonizio, 442
U.S. 178, 184-86 (1979). A petitioner's challenge to his
sentence based on a Sixth Amendment claim of ineffective
assistance of counsel is normally considered in a collateral
attack. United States v. Teague, 953 F.2d 1525, 1534
n. 11 (11th Cir. 1992).
any Sixth Amendment ineffective assistance of counsel claim,
a § 2255 petitioner must demonstrate both: (1) that his
counsel's conduct amounted to constitutionally deficient
performance, and (2) that his counsel's deficient
performance sufficiently prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994).
In determining whether the petitioner has satisfied the first
requirement, i.e. that counsel performed deficiently, the
Court adheres to the standard of reasonably effective
assistance. Weeks, 26 F.3d at 1036. The petitioner
must show, in light of all the circumstances, that
counsel's performance fell outside the “wide range
of professionally competent assistance.” Id.
To satisfy the second requirement, that counsel's
deficient performance prejudiced the defendant, the
petitioner must show that there is a reasonable probability
that, but for counsel's error, the result of the
proceeding would have been different. Id. at 1036-37
(citing Strickland, 466 U.S. at 694). In determining
whether a petitioner has met the two prongs of deficient
performance and prejudice, the Court considers the totality
of the evidence. Strickland, 466 U.S. at 695.
However, because both prongs are necessary, “there is
no reason for a court… to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”
Id. at 697; see also Wellington v. Moore,
314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not
discuss the performance deficiency component of
[petitioner's] ineffective assistance claim because
failure to satisfy the prejudice component is
first claim is that counsel was ineffective for failing to
argue that “the District Court Unlawfully Shifted the
Burden of Proof from the Government to Riquene Regarding
Consent for the Warrantless Search and Seizure of his Home,
in Violation of the Fourth Amendment.” Motion to Vacate
at 2. Counsel had no occasion to argue that the Court shifted
the burden of proof on the matter of Riquene's consent to
search, because he never argued that an unreasonable search
had occurred in the first place. Rather, counsel moved to
suppress Riquene's statements on the ground that his
rights under Miranda and the Fifth Amendment were
violated. Motion to Suppress at 3-4. The Court therefore
construes Ground One as a claim that counsel was ineffective
for not moving to suppress Riquene's statements on the
ground that they were the product of a nonconsensual
warrantless entry into his home, in violation of the Fourth
prisoner can prove that counsel gave ineffective assistance
if his lawyer unreasonably failed to move to suppress
evidence. Kimmelman v. Morrison, 477 U.S. 365,
374-75 (1986). To do so, the prisoner must show three things:
(1) that a Fourth Amendment violation actually occurred, (2)
that it was objectively unreasonable for counsel not to file
the motion to suppress, and (3) that there is a reasonable
probability the outcome would have been different absent the
excludable evidence. See id. at 375, 382. “If
a search was constitutional, then counsel is not obligated to
move to suppress the evidence . . . and a defendant is not
prejudiced by counsel's failure to do so.”
Castillo v. United States, 816 F.3d 1300, 1303 (11th
Cir. 2016) (citing Kimmelman, 477 U.S. at 375).
Riquene cannot satisfy Kimmelman's first prong,
i.e., that an unreasonable search and seizure occurred in the
first instance. The record of the suppression hearing
reflects that while the officers entered Riquene's home
without a warrant, they did so with Riquene's voluntary
consent. “A consensual search is constitutional if it
is voluntary; if it is the product of an ‘essentially
free and unconstrained choice.'” United States
v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218,
225 (1973)). Voluntariness is determined on a case-by-case
basis according to “the totality of the
circumstances.” United States v. Blake, 888
F.2d 795, 798 (11th Cir. 1989) (citing Schneckloth,
412 U.S. at 224-25). “Relevant factors include the
‘voluntariness of the defendant's custodial status,
the presence of coercive police procedure, the extent and
level of the defendant's cooperation with police, the
defendant's awareness of his right to refuse to consent
to the search, the defendant's education and
intelligence, and, significantly, the defendant's belief
that no incriminating evidence will be found.'”
United States v. Spivey, 861 F.3d 1207, 1213 (11th
Cir. 2017) (quoting United States v. Chemaly, 741
F.2d 1346, 1352 (11th Cir. 1984)).
day of the search, A.B. led law enforcement officers to
Riquene's residence, where the officers arrived in an
unmarked pickup truck and wearing civilian clothes.
Suppression R&R at 3-4 (transcript citations omitted).
Two of the four officers who arrived were unarmed, while the
other two kept their weapons concealed. Id. at 5.
The officers first encountered Riquene's uncle, Jose
Mendez, on the front porch. The officers presented their
identification badges to Mendez and notified him that they
were there to speak with Riquene. Id. Mendez went
inside the house to retrieve Riquene while the officers
waited outside. Id. When Riquene appeared, one of
the officers - Detective Bisplinghoff - showed his
credentials to Riquene and identified the others with him as
law enforcement officers. Detective Bisplinghoff asked
Riquene if he would be willing to speak with them in private,
and Riquene agreed, signaling for the officers to come into
the living room. Id. at 5-6. Riquene sat on the
couch while the other officers sat or stood nearby.
Id. at 6. Mendez remained on the porch while the
officers spoke to Riquene, during which time “he heard
no loud sounds, shouts or threats from inside the
residence.” Id. The officers advised Riquene
that lying to a federal agent is a crime, and began to
question Riquene about A.B. Id. Although Riquene is
a native of Cuba, id. at 3, he spoke with the
officers in English, id. at 7. At some point
during the conversation, Detective Bisplinghoff asked for
Riquene's permission to inspect the bedroom, which
Riquene granted. Id. at 6. Detective Bisplinghoff
examined the bedroom and noticed several features that
matched the description A.B. had given: an air freshener
above the door, a number of hats hanging on the wall, and
Riquene's business card for his landscaping company.
Id. at 6-7. At this point, Detective Bisplinghoff
began to believe there may be probable cause to arrest
Riquene. Id. at 7.
long thereafter, Detective Maria Carney arrived. Id.
at 8. Detective Carney advised Riquene of his
Miranda rights in Spanish, and Riquene indicated his
understanding of each of his rights. Id. Riquene
proceeded to re-answer essentially the same questions that
the officers had asked before he was Mirandized.
Id. Riquene further gave officers permission to
search his room “and signed a consent to search form
after Detective Carney explained the English written form to
[Riquene] in Spanish.” Id. at 9. Riquene also
agreed to allow the officers to photograph his bedroom.
Id. Throughout this time, the officers did not put
Riquene in restraints or restrict his freedom of movement.
See id. at 9, 10-11; Suppression Tr. at 24, 87-88,
103. The officers only put Riquene in custody after Detective
Carney left the premises. See Suppression R&R at
foregoing facts show that no Fourth Amendment violation
occurred because Riquene consented to the officers entering
and searching his home. Indeed, Riquene invited the officers
to come into his living room and permitted Detective
Bisplinghoff to inspect his bedroom. For many of the same
reasons why this Court and the Eleventh Circuit found no
Miranda violation, there was also no unreasonable
search and seizure. See Suppression R&R at 9-21;
Riquene, 552 F. App'x at 941-43. First, Riquene
was not in custody when he consented to the officers entering
his home and examining his bedroom. Spivey, 861 F.3d
at 1213. Riquene was not handcuffed at the time and he
remained free to move around the home. Suppression R&R at
11; Riquene, 552 F. App'x at 942. Second, the
officers did not use overbearing or coercive tactics.
Spivey, 861 F.3d at 1213. “The officers wore
civilian clothes, did not display any weapons, and did not
use force against Riquene.” Riquene, 552 F.
App'x at 942. Third, Riquene's level of cooperation
was high, as he gestured for the officers to enter his living
room, answered their questions, and permitted the officers to
search and photograph his bedroom. Fourth, even after
Detective Carney read Riquene his Miranda rights and
the consent-to-search form in Spanish, and he indicated his
understanding of each of his rights, he still authorized the
officers to search his room. See Spivey, 861 F.3d at
1213 (the defendant's awareness of his rights is a factor
in the consent analysis). Moreover, although Riquene's
first language is Spanish, he demonstrated fluency in
English, as reflected by his conversation with the officers
in English (before Detective Carney's arrival) and by the
fact that his business card was also in English.
Additionally, Riquene is of reasonable intelligence, as
reflected by the fact that he worked in Cuba as a police
officer and a member of the military, had a driver's
license, and incorporated his own lawn company. Suppression
R&R at 3. Finally, although Riquene contends that he was
on pain medication at the time and that this diminished his
ability to give consent, the testimony from the suppression
hearing reflected that Riquene was mentally alert at all
times. See id. at 20.
on the foregoing, the Court finds that the record establishes
that Riquene consented to the officers entering and searching
his home, and further, that such consent was knowing and
voluntary. Because a consensual search is constitutional,
Purcell, 236 F.3d at 1281, Riquene cannot meet
Kimmelman's first prong, which requires that he
establish the existence of a Fourth Amendment violation, 477
U.S. at 375. As such, relief on Ground One is due to be