United States District Court, M.D. Florida, Fort Myers Division
ANDREW F. BELITSKY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner Andrew
Belitsky's (petitioner or Belitsky) Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (Cr. Doc. #290; Cv. Doc.
filed on May 11, 2015. On July 15, 2015, and July 16, 2015,
petitioner filed two supplemental memorandums in support of
his § 2255 motion (Cv. Docs. #8; #9). The United States
filed a Response in Opposition (Cv. Doc. #7) on July 17,
2015. Petitioner filed a Reply (Cv. Doc. #13) on October 5,
reasons set forth below, petitioner's § 2255 motion
March 18, 2009, a federal grand jury in Fort Myers, Florida,
returned a two-count Indictment against petitioner. (Cr. Doc.
#3). Count One charged Belitsky with knowingly possessing
child pornography in violation of 18 U.S.C. §
2252(a)(4)(B), (b)(2). (Id., p. 1). Count Two
charged Belitsky with knowingly distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2),
(b)(1). (Id., p. 1-2).
pled not guilty and proceeded to a jury trial in February
2010. (Cr. Doc. #88). Because the jury could not reach a
unanimous verdict, the Court granted Belitsky's motion
for a mistrial. (Cr. Doc. #93). A second jury trial began on
August 17, 2010 (Cr. Doc. #141), and on August 20, 2010,
Belitsky was convicted of both counts. (Cr. Doc. #148).
September 1, 2010, Belitsky, through counsel, filed a Motion
for Judgment of Acquittal and Motion for New Trial, arguing
that the evidence at trial was insufficient to support his
convictions. (Cr. Doc. #155). On September 3, 2010, Belitsky,
through counsel, filed a Supplemental Motion asserting
additional facts. (Cr. Doc. #156). On September 10, 2010,
Belitsky filed a pro se motion to represent himself
due to a disagreement with his trial attorney, Michael Walsh.
(Cr. Doc. #157). The Court denied Belitsky's pro
se motion, but permitted him to file a pro se
supplement to his Motion for a New Trial. (Cr. Doc. #160). On
October 6, 2010, Belitsky filed a pro se
Supplemental Motion for a New Trial, alleging claims of
ineffective assistance of trial counsel. (Cr. Doc. #162).
Walsh notified the Court that his relationship with Belitsky
was “beyond repair.” (Cr. Doc. #163, p. 1). After
conducting a hearing on November 16, 2010, the Court granted
Walsh's Motion to Withdraw. (Cr. Doc. #167). The Court
then appointed Attorney John Mills to represent Belitsky.
(Cr. Doc. #169).
February 9, 2011, the Court denied Belitsky's Motion for
Judgment of Acquittal and Motion for New Trial, and scheduled
an evidentiary hearing on Belitsky's claims of
ineffective assistance of trial counsel asserted in his
pro se Supplemental Motion. (Cr. Doc. #174). The
Court conducted an evidentiary hearing on April 26, 2011,
(Cr. Doc. #218) and July 22, 2011, (Cr. Doc. #219). On
January 12, 2012, the Court denied Belitsky's
Supplemental Motion for a New Trial (Cr. Doc. #234), finding
that the evidence failed to show either deficient performance
January 17, 2012, Belitsky was sentenced to 84 months in
prison. (Cr. Docs. #236, #241). Belitsky filed a direct
appeal (Cr. Doc. #242), and on May 14, 2014, the Eleventh
Circuit affirmed his convictions and the Court's denial
of Belitsky's motions for a new trial. (Cr. Doc. #284);
United States v. Belitsky, 566 Fed.Appx. 777 (11th
Cir. 2014). Belitsky did not seek a writ of certiorari.
government concedes that Belitsky's May 8, 2015, motion
was timely filed (Cv. Doc. #7, pp. 17-18), and the Court
Appointment of Counsel and Legal Standards
raises claims of ineffective assistance of trial counsel,
ineffective assistance of appellate counsel, and an erroneous
jury instruction by the trial court.
Appointment of Counsel For § 2255
again requests appointment of counsel in this collateral
proceeding. (Cv. Doc. #8, p. 41). Because
Belitsky's motion for an evidentiary hearing is denied,
appointment of counsel is not required under Rule 8(c), Rules
Governing Section 2255 Proceedings for the United States
District Court. Petitioner is not otherwise entitled to
appointment of counsel in this case. There is no Sixth
Amendment right to counsel in post-conviction collateral
proceedings. See Barbour v. Haley, 471 F.3d 1222,
1227 (11th Cir. 2006). “Counsel must be appointed for
an indigent federal habeas petitioner only when the interest
of justice or due process so require.” Schultz v.
Wainwright, 701 F.2d 900, 901 (11th Cir. 1983). Neither
the interest of justice nor due process require the
appointment of counsel in this case. Belitsky's Motion to
Appoint Counsel is denied.
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
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). 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). 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, 134 S.Ct.
1081, 1087-88 (2014) (citing Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984) and
Padilla v. Ky., 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 (internal quotations and 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. See
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. See Rose v.
McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); see
also 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. See
United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992); see also Ladd v. Jones, 864 F.2d 108, 109-10
(11th Cir. 1989).
same deficient performance and prejudice standards apply to
appellate counsel. See Smith v. Robbins, 528 U.S.
259, 285-86 (2000); see also 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. See Joiner
v. United States, 103 F.3d 961, 963 (11th Cir. 1997).
Counsel is not deficient for failing to raise non-meritorious
claims on direct appeal. See Diaz v. Sec'y for the
Dep't of Corr., 402 F.3d 1136, 1144-45 (11th Cir.
Matters Already Adjudicated and Procedural Default
Matters Already Adjudicated
government asserts that many of petitioner's claims were
addressed on direct appeal, and thus are already adjudicated.
(Cv. Doc. #7, pp. 18-23). The Court agrees.
well settled that a “district court is not required to
reconsider claims of error that were raised and disposed of
on direct appeal.” United States v. Nyhuis,
211 F.3d 1340, 1343 (11th Cir. 2000) (citing United
States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981)).
“[O]nce a matter has been decided adversely to a
defendant on direct appeal it cannot be re-litigated in a
collateral attack under section 2255.” Id.
(citing United States v. Natelli, 553 F.2d 5, 7 (2d
appeal, the Eleventh Circuit held that trial counsel was not
deficient in failing to move to: (1) exclude evidence because
the warrant actually described Belitsky's neighbor's
house, (2) suppress evidence on the basis of FBI tampering,
(3) compel production of the original computer hard drives,
and (4) assert prosecutorial misconduct on the basis of
denial of access to the original hard drives. See
Belitsky, 566 Fed.Appx. at 782-783. In addition, the
Eleventh Circuit found that trial counsel did not render
ineffective assistance when he canceled Belitsky's
pro se subpoena of Officer Nahmens, did not subpoena
Officer Nahmens to testify, and did not present all evidence
at trial, including time zone inconsistences and testimony
about a virus theory. Id. The Eleventh Circuit
ultimately found that trial counsel adequately prepared for
trial, there was sufficient evidence to convict petitioner of
both counts, and the invited-error doctrine precluded review
of the jury instructions because counsel agreed to the
Court's proposed instructions. Id. at 781-84.
the Eleventh Circuit has already rejected many of
petitioner's arguments in Grounds One, Three, and Four,
he cannot re-litigate those claims.
government also argues that Belitsky's other claims are
procedurally defaulted because he failed to assert them on
direct appeal. (Cv. Doc. #7, pp. 21-22). The Court disagrees
and finds that petitioner's ineffective assistance of
counsel claims are not defaulted. See Massaro v. United
States, 538 U.S. 500, 509 (2003) (holding that claims of
ineffective assistance of counsel not raised on direct appeal
cannot be procedurally defaulted). As a result, the Court
will address Belitsky's remaining claims.
Ground One: Ineffective Assistance of Trial Counsel
alleges that trial counsel provided ineffective assistance
when counsel: (1) failed to move to exclude evidence based on
an invalid search warrant; (2) failed to move to dismiss the
Indictment on the basis of government misconduct; and (3)
entered stipulations at trial without Belitsky's consent.
(Cr. Doc. #290, pp. 4-5; Cv. Doc. #1, pp. 4-5).
Failure to File Motion to Exclude Evidence
asserts that trial counsel's performance was deficient
because he failed to move to exclude evidence seized during
the execution of an invalid warrant. (Cv. Doc. #8, pp. 2-8).
Belitsky argues that the warrant is invalid because (1)
images of child pornography were never on his computer; (2)
agents seized his gun safe, which was not identified in the
warrant as an item to be seized; and (3) Agent ...