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Belitsky v. United States

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

May 22, 2018

ANDREW F. BELITSKY, 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 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. #1)[1], 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, 2015.

         For the reasons set forth below, petitioner's § 2255 motion is denied.

         I. Procedural Background

         On 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).

         Belitsky 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).

         On 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).

         Attorney 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)[2].

         On 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 or prejudice.

         On 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.

         The government concedes that Belitsky's May 8, 2015, motion was timely filed (Cv. Doc. #7, pp. 17-18), and the Court agrees.

         II. Appointment of Counsel and Legal Standards

         Petitioner raises claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and an erroneous jury instruction by the trial court.

         A. Appointment of Counsel For § 2255

         Belitsky again requests appointment of counsel in this collateral proceeding.[3] (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.

         B. Evidentiary Hearing Standard

         A 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 715.

         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). 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.

         C. 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, 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 omitted).

         The 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).

         The 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. 2005).

         III. Matters Already Adjudicated and Procedural Default

         A. Matters Already Adjudicated

         The 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.

         It is 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 Cir. 1977)).

         On 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.

         Because the Eleventh Circuit has already rejected many of petitioner's arguments in Grounds One, Three, and Four, he cannot re-litigate those claims.

         B. Procedural Default

         The 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.

         IV. Analysis

         A. Ground One: Ineffective Assistance of Trial Counsel

         Belitsky 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).

         (1) Failure to File Motion to Exclude Evidence

         Belitsky 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 ...


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