United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE
case is before the Court on Petitioner Troy Lamorris
Aaron's Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate)
and Memorandum of Law and Brief in Support of § 2255
Motion (Civ. Doc. 2, Memorandum). Aaron claims that trial
counsel gave ineffective assistance because a conflict of
interest caused him not to file various pretrial motions, and
that appellate counsel gave ineffective assistance by failing
to raise meritorious arguments on appeal. The United States
has responded (Civ. Doc. 9, Response), and Aaron has replied
(Civ. Doc. 14, Reply). The case is ripe for a decision.
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 a hearing is not
necessary to resolve the merits of this action. See
Rosin v. United States, 786 F.3d 873, 877 (11th
Cir. 2015) (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);
Patel v. United States, 252 Fed.Appx. 970, 975 (11th
Cir. 2007). For the reasons set forth below,
Aaron's Motion to Vacate is due to be denied.
February 2012, a confidential source working with the Baker
County Sheriff's Office made a series of video and audio
recorded controlled purchases of cocaine from Aaron and
another individual named Paul Williams. Presentence
Investigation Report (PSR) at ¶¶ 12-18. As a result
of those purchases, state law enforcement authorities
arrested Aaron on related charges on June 5, 2012.
Id. at ¶ 19. A few months later, on October 4,
2012, a federal grand jury sitting in the Middle District of
Florida indicted Aaron on one count of conspiracy to
distribute cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 846 (Count One), and three
counts of distribution of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (Counts Two through
Four). (Crim. Doc. 1, Indictment). This Court issued a
warrant for Aaron's arrest (Crim. Doc. 4, Federal Arrest
Warrant), which was returned executed on October 11, 2012
(Crim. Doc. 6, Execution of Arrest Warrant).
Court initially appointed Susan Good Yazgi of the Federal
Public Defender's Office to represent Aaron. (Crim. Doc.
13). Ms. Yazgi's representation lasted less than four
months, however. On February 8, 2013, Ms. Yazgi moved to
withdraw from the case because “she [was] unwilling to
file the motion to suppress as requested by [Aaron].”
(Crim. Doc. 28, Motion to Withdraw at 1, ¶ 2). The Court
granted the Motion to Withdraw and appointed A. Russell
Smith, an experienced member of the Court's Criminal
Justice Act (“CJA”) panel to represent Aaron.
(Crim. Doc. 31, Order Granting Motion to
a half months later, Aaron filed a pro se motion to terminate
Mr. Smith's representation and to appoint yet another
lawyer. (Crim. Doc. 38, Notice of Filing Defendant's Pro
Se Motion; Crim. Doc. 38-1, Pro Se Motion to Relieve
Counsel). Aaron complained that Mr. Smith would not file
various pretrial motions on his behalf; that Mr. Smith was
not investigating potential witnesses; and that Mr. Smith was
pressuring him to plead guilty. Pro Se Motion to Relieve
Counsel at 2-3. Aaron alleged that counsel was providing
ineffective assistance and that he was entitled to the
appointment of a new lawyer. Id. at 3.
Honorable Joel B. Toomey, United States Magistrate Judge,
held a prompt hearing on the pro se motion, at which Aaron,
Mr. Smith, and the Assistant United States Attorney were
present. (Crim. Doc. 41, Minute Entry for April 30, 2013,
Hearing). Mr. Smith opened by saying “there
[wasn't] any acrimony between [him and Aaron], ”
but that Aaron had lost faith in his representation because
Aaron believed Mr. Smith was trying to “coerce him into
pleading guilty.” (Crim. Doc. 107, Transcript of April
30, 2013 Hearing at 2) (“Apr. 30, 2013 Hrg.
Tr.”). Mr. Smith disagreed with Aaron's assessment,
but said he believed “ultimately every client has the
right to have confidence in counsel, and he obviously does
not have confidence in me.” Id. Judge Toomey
then held part of the hearing ex parte to explore the issues
between Aaron and Mr. Smith. (See generally Crim.
Doc. 115, Transcript of April 30, 2013, Ex Parte Proceedings)
(“April 30, 2013, Ex Parte Hrg.
Tr.”).During the ex parte portion of the hearing,
Mr. Smith first explained that “from the
beginning” he had requested that Aaron furnish the
names of any alibi or other witnesses he might have, but
Aaron was “reluctant or unwilling” to do so.
Id. at 2-3. With respect to one particular witness,
Paul Williams, Mr. Smith explained that he had had difficulty
locating him, but once he did do so, he and Aaron mutually
agreed that Williams would not be “useful.”
Id. at 3. Addressing Aaron's claim that he would
not file pretrial motions, Mr. Smith explained that Aaron was
frustrated because out of 11 or 12 individuals targeted in a
sweeping operation by the Bradford County Sheriff's
Office, Aaron was the only one whose case was transferred to
federal court. Id. at 4. As a result, Aaron's
potential sentence was 35 times as great as the sentences
given the other defendants, who were each given county jail
time after being allowed to plead guilty in state court.
Id. at 4-5. Aaron believed he was being selectively
prosecuted in federal court, but Mr. Smith explained that
“the case law on selective prosecution just does not
support a motion to suppress or dismiss alleging selective
prosecution. There were otherwise reasonable bases to
prosecute Mr. Aaron in federal court, ” including that
he was already serving “two different supervised
release terms.” Id. at 5. Mr. Smith could
discern “no unlawful or improper motive” for
Aaron's case being transferred to federal court.
Id. Moreover, Mr.
explained that Aaron's arrest was “pursuant to a
warrant based upon video recorded transactions, audio
recorded transactions, ” and that “[t]he basis
for the issuance of the warrant was sufficient as a matter of
law.” Id. Mr. Smith added that Aaron's
former public defender had “had the same types of
conversations with Mr. Aaron” about the pretrial
motions. Id. While recognizing that Aaron's
situation was unfortunate, Mr. Smith explained that
“[t]he selective prosecution argument is without basis
in law” and there was “no legal basis to file a
motion in the case.” Id. at 5-6. Turning to
Aaron's claim that he felt pressured to plead guilty, Mr.
Smith recalled that he had been trying to explain to Aaron
that he was facing a lengthy sentence, and that by going to
trial he could face a sentence up to ten years longer than if
he pled guilty because the United States indicated it would
file a notice of prior convictions under 21 U.S.C. §
851. Id. at 6. As Mr. Smith summarized:
He feels this is coercive. I feel I have an obligation to
make sure he understands the consequences of going to trial
… He sees me as trying to force a plea. I see myself
as trying to give him the information he needs to make an
educated decision about what to do with his cases.
Id. at 6-7.
Magistrate Judge asked Mr. Smith about the quality of
communication between him and Aaron. Mr. Smith responded:
I speak frankly with him and he speaks frankly with me. I
don't think we pull any punches.
I think at times early on he found - he took offense at that.
I hope he now realizes that he's better off with somebody
who's going to tell him the unvarnished truth than
somebody who's just going to say, “Don't worry
about it, ” pat him on the hand, and tell him it's
going to be all right and then wave good-bye as he goes to
prison for a very long time.
So I hope we're past that part, but - but yes, we went
nose to nose a few times early on because he's a
strong-willed person and I am as well, and I wasn't just
going to back down and tell him what he wanted to hear. I
told him what I thought the truth was, and it wasn't good
So, you know, we started off that way.
Id. at 7-8. The Magistrate Judge then asked whether
Mr. Smith could continue as Aaron's attorney if the pro
se motion were denied. Id. at 8. Mr. Smith responded
that “there is a continuing problem with his trust of
me, ” which he said “may adversely
impact trial preparation, ” but he did not say he could
no longer represent Aaron effectively. Id. (emphasis
his turn to speak, Aaron voiced his frustration that Mr.
Smith was not pursuing the pretrial motions he thought were
worth pursuing, particularly given the length of the sentence
he was facing. See id. at 10. Aaron acknowledged
that he had had similar issues with his former public
defender not filing the motions he wanted. Id. The
Magistrate Judge explained:
Well, I can tell you you've had two of the most
experienced, probably best criminal defense lawyers here in
Jacksonville, so if they can't make you happy, it
doesn't sound like anybody is going to be able to make
you happy, so I guess I'm having trouble seeing where
this is going to go.
It sounds to me like we're going to be back here in a
month or two months with another lawyer and then a month or
two months after that with a different lawyer, and we
can't just keep doing that and delaying these proceedings
indefinitely on the thought that maybe eventually you might
find somebody who you're satisfied with.
Id. at 11. Aaron reiterated his belief that Mr.
Smith was not pursuing a meritorious motion to suppress. The
Magistrate Judge responded:
THE COURT: Well, you understand a lawyer can only file -
ethically file things that they think have a sufficient legal
basis. They can't just file something because you tell
them to file it, and any lawyer is going to tell you that
You understand that?
DEFENDANT: I mean, yes, sir, I understand that. I
THE COURT: So, I mean, you've had two, like I say,
competent lawyers look at the issues that you're talking
about, and both of them tell you that not only do they not
have merit, they don't even have enough merit to where
they feel comfortable that they can ethically file something.
I mean, that's - they are both telling you that they
don't see that they can ethically file these motions you
want them to file because they're - they're
groundless. They're - yes, you're facing a lot of
time, but that doesn't mean that there has ...