United States District Court, M.D. Florida, Fort Myers Division
JAMES F. BROOMFIELD, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
E. STEELE, 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. Doc. #1; Cr.
Doc. #81) filed on January 25, 2016. The government
filed a Response in Opposition to Motion (Cv. Doc. #9) on
April 6, 2016. For the reasons set forth below, the motion is
1, 2013, a federal grand jury in Fort Myers, Florida returned
a one count Indictment (Cr. Doc. #1) charging petitioner with
possession of an AR-15 firearm and PMC 223A ammunition after
having been convicted of felony offenses, in violation of 18
U.S.C. § 922(g)(1) and § 924(e). The Indictment
identified three Florida state court cases which resulted in
felony convictions: (1) Case No. 06-CF-014986: a conviction
for possession of cocaine with intent, in violation of Fla.
Stat. § 893.13; (2) Case No. 04-CG-002539: convictions
for sale/delivery of controlled substance within 1, 000 feet
of a school and possession of cocaine, both in violation of
Fla. Stat. § 893.13, ; and (3) Case No. 04-CF-002540:
convictions for sell/manufactured/delivered within 200 feet
of public housing and possession of cocaine, both in
violation of Fla. Stat. § 893.13. On September 5, 2013,
a jury found petitioner guilty of possession of both the
AR-15 rifle and the PMC 223A ammunition. (Cr. Doc. #50.)
Presentence Report (PSR) (Cr. Doc. #59) found petitioner
qualified under the Armed Career Criminal Act (ACCA) by
virtue of the prior convictions listed in the Indictment.
(Cr. Doc. #59, ¶ 21.) The effect of an ACCA enhancement
is to increase the statutory penalty from a maximum ten years
imprisonment to a mandatory minimum of fifteen years
imprisonment, and to increase the Sentencing Guidelines
sentence calculation. The Sentencing Guidelines range was
calculated at 188 to 235 months imprisonment (Id. at
December 16, 2013, the Court sentenced petitioner to 180
months imprisonment, followed by a term of supervised
release. (Cr. Doc. #58.) Judgment (Cr. Doc. #60) was filed on
December 17, 2013.
filed a direct appeal (Cr. Doc. #62) raising several issues,
including: (1) whether the government adequately
authenticated a video clip of petitioner in possession of a
firearm; and (2) whether the trial court erred in determining
that petitioner's three prior predicate convictions
occurred on different occasions for purposes of the ACCA. On
December 3, 2014, the Eleventh Circuit affirmed
petitioner's conviction and sentence, but remanded for
the limited purpose of correcting a clerical error in the
judgment regarding the date the offense concluded. (Cr. Doc.
#77); United States v. Broomfield, 591 Fed.Appx. 847
(11th Cir. 2014). The Corrected Judgment was issued on
January 16, 2015. (Cr. Doc. #79.)
March 30, 2015, a Petition for a writ of certiorari was
denied. Broomfield v. United States, 135 S.Ct. 1726
asserts four claims of ineffective assistance of counsel.
Petitioner asserts that his trial attorney provided
ineffective assistance because counsel (1) failed to object
to the ACCA enhancement on the basis that the underlying
state convictions were not proper predicate convictions since
possession of cocaine is not a “serious drug
offense” under the ACCA (Ground One); (2) did not allow
petitioner to testify as to the authenticity of the
government's video exhibit, which would have resulted in
an acquittal (Ground Two); and (3) failed to negotiate a
guilty plea agreement without the ACCA enhancement (Ground
Four). Petitioner also claims that his appellate attorney
provided ineffective assistance because counsel failed to
argue that the ACCA enhancement was unconstitutional under
its residual clause, and instead incorrectly argued that a
valid statute was unconstitutional (Ground Three).
Evidentiary Hearing Standard
district court shall hold an evidentiary hearing on a habeas
corpus 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 patently
frivolous, based upon unsupported generalizations, or
affirmatively contradicted by the record. Id. at
hearing is not necessarily required whenever ineffective
assistance of counsel claims are asserted. Gordon v.
United States, 518 F.3d 1291, 1301 (11th Cir. 2008). To
establish entitlement to an evidentiary hearing for such
claims, 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).
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).
same deficient performance and prejudice standards apply to
appellate counsel. Smith v. Robbins, 528 U.S. 259,
285-86 (2000); Roe v. Flores-Ortega, 528 U.S. at
476-77. If the Court finds there has been deficient
performance, it must examine the merits of the claim omitted
on appeal. If the omitted claim would have had a reasonable
probability of success on appeal, then the deficient
performance resulted in prejudice. Joiner v. United
States, 103 F.3d 961, 963 (11th Cir. 1997).
Nonmeritorious claims which are not raised on direct appeal
do not constitute ineffective assistance of counsel. Diaz
v. Sec'y for the Dep't of Corr., 402 F.3d 1136,
1144-45 (11th Cir. 2005).
forth below, the record of the case establishes that
petitioner is not entitled to relief on any of the asserted
grounds. The Court finds that an evidentiary hearing is not
Ineffective Assistance of Trial Counsel Claims
Ground One: Failure to Challenge ACCA Predicate
argues that trial counsel provided ineffective assistance by
failing to argue that “possession of cocaine” did
not qualify as a serious drug offense under the ACCA. Had
counsel done so, petitioner argues, his sentence would not
have been enhanced under the ACCA.
defendant convicted of possession of a firearm by a convicted
felon under 18 U.S.C. § 922(g) generally faces a maximum
statutory penalty of ten years imprisonment. 18 U.S.C. §
924(a)(2). A defendant who has three previous convictions
“for a violent felony or a serious drug offense, or
both, committed on occasions different from one
another” shall be imprisoned for not less than fifteen
years. 18 U.S.C. § 924(e)(1). The Indictment cited