United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, United States District Judge
THE COURT are Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (CV Dkt. 1), three affidavits
in support (CV Dkts. 2, 5, 6), the Government's response
(CV Dkt. 7), Petitioner's reply (CV Dkt. 44), and two
documents filed by Petitioner as "Correspondence."
(CV Dkts. 45, 73).Upon review, Petitioner's Section 2255
motion is DENIED.
was charged with conspiring to possess with intent to
distribute 100 grams or more of heroin (Counts One and Four)
and possessing heroin with intent to distribute it (Counts
Two and Three). (CR Dkt. 1). He was later charged with an
additional count, possession of a firearm by a convicted
felon (Count Five). (CR Dkt. 5).
on bond on state charges, Petitioner left the country and was
thereafter extradited from South Africa. (CR Dkt. 8; CR Dkt.
411 at 102-04). On December 15, 2003, Petitioner pleaded
guilty without a plea agreement to all five counts. (CR Dkt.
32). He subsequently moved to withdraw his guilty plea, which
was denied. (CR Dkts. 38, 48). Following the Supreme
Court's decision in Blakely v. Washington, 542
U.S. 296 (2004), he moved again to withdraw his guilty plea.
After oral argument, his motion was granted. (CR Dkts. 52,
to trial, Petitioner moved to suppress evidence seized by law
enforcement. (CR Dkt. 95). Following a hearing on July 28,
2005, the motion was denied. (CR Dkts. 113, 116). On August
1, 2005, the morning of trial, Petitioner pleaded guilty
without a plea agreement. (CR Dkt. 125). Less than a month
later, his attorney, David Weisbrod, filed a motion to
withdraw, which was denied. (CR Dkts. 128, 130, 131).
Approximately two weeks later, Weisbrod moved again to
withdraw. His request was granted, and Petitioner was
appointed new counsel. (CR Dkts. 138, 139, 141).
new attorney, Patrick Doherty, filed a motion to withdraw the
second guilty plea, which was denied. (CR Dkts. 142, 146).
Petitioner was sentenced to 324 months in prison on Counts
One and Four, 240 months on Counts Two and Three, and 120
months in prison on Count Five, all concurrent. (CR Dkt.
160). His convictions and sentences were affirmed. (CR Dkts.
167, 249); United States v. Djenasevic, 248
Fed.Appx. 135 (11th Cir. 2007).
filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence, which was denied. (CR Dkts.
260-63). On appeal, the Eleventh Circuit reversed, finding
ineffective assistance of counsel where, contrary to
Petitioner's request, Attorney Weisbrod did not move to
withdraw the guilty plea based on a violation of Rule 11,
Federal Rules of Criminal Procedure. See Djenasevic v.
United States, 425 Fed.Appx. 834, 836-37 (11th Cir.
remand, Petitioner's conviction and sentence were
vacated, and the case was set for trial. (CR Dkts. 283, 288).
Through counsel, Petitioner moved to suppress the same
physical evidence addressed in the 2005 motion to suppress
and also moved for rehearing on the 2005 motion. After a
hearing, the motions were denied on grounds, among others,
that relitigation of the prior decision was not justified.
(CR Dkts. 290, 299, 319, 322, 407). Petitioner then moved to
suppress statements he made after his arrest, claiming the
statements were not voluntary. (CR Dkt. 318). Following a
hearing, that motion was denied. (CR Dkts. 347, 408).
Approximately a month before trial, his attorney moved to
withdraw, citing disagreement with Petitioner over how to
proceed with the case. (CR Dkt. 333). After a hearing, the
motion was denied. (CR Dkts. 339, 340).
case proceeded to trial, and Petitioner was found guilty as
charged. (CR Dkts. 360-373). He was sentenced to 292 months
in prison on Counts One and Four, 240 months on Counts Two
and Three, and 120 months on Count Five, all concurrent,
followed by 60 months of supervised release. (CR Dkts. 392,
393). His convictions and sentences were affirmed. (CR Dkt.
427); United States v. Djenasevic, 545 Fed.Appx. 946
(11th Cir. 2013). His petition for writ of certiorari was
denied. (CR Dkt. 430); United States v. Djenasevic,
134 S.Ct. 1953 (2014).
instant motion, Petitioner moves to vacate, set aside, or
correct his sentence under Section 2255. (CV Dkt. 1). His
motion and pleadings are not clearly grouped into distinct
grounds for relief, but will be addressed as follows:
1. Counsel failed to investigate case facts, evidence, and a
viable defense (CV Dkt. 1 at 4; CV Dkt. 5 at 4, 19); failed
to present exculpatory evidence at pretrial hearings and at
trial (CV Dkt. 1 at 4); failed to cross-examine witnesses or
present inconsistencies in the evidence to the jury (CV Dkt.
1 at 4; CV Dkt. 5 at 7, 19); and failed to present defense
witnesses (CV Dkt. 1 at 4);
2. Counsel failed to file pretrial motions (CV Dkt. 1 at 5);
3. Counsel failed to object to evidence and testimony, failed
to object during the prosecutor's opening and closing
statements, and failed to object to the presence of law
enforcement at the prosecution table during the trial (CV
Dkt. 5 at 4-5);
4. Prosecutorial misconduct (CV Dkt. 2 at 10, 14, 15, 17; CV
Dkt. 5 at 7, 15);
5. The court erred in refusing to reconsider its denial of
his motion to suppress evidence, and erred by refusing to
appoint a new attorney (CV Dkt. 5 at 9; CV Dkt. 44 at 6-7);
6. Counsel failed to raise objections to the presentence
investigation report (PSR) (CV Dkt. 1 at 4); and
7. Counsel failed to confer with Petitioner (CV Dkt. 1 at
two-part test applies in analyzing ineffective assistance of
counsel claims. Strickland v. Washington, 466 U.S.
668, 687 (1984). According to Strickland, Petitioner
[f]irst, . . . show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Id. And relevant to Petitioner's hindsight
criticism of his attorney, the test for ineffective
has nothing to do with what the best lawyers would have done.
Nor is the test even what most good lawyers would have done.
We ask only whether some reasonable lawyer at the trial could
have acted, in the circumstances, as defense counsel acted at
trial. Courts also should at the start presume effectiveness
and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to
allow lawyers broad discretion to represent their clients by
pursuing their own strategy. We are not interested in grading
lawyers' performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th
Cir. 1992) (citation omitted). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir.2000) ("To
state the obvious: the trial lawyers, in every case, could
have done something more or something different. And,
therefore, omissions are inevitable. [T]he issue is not what
is possible or 'what is prudent or appropriate, but only
what is constitutionally compelled.' ") (en
banc) (quoting Burger v. Kemp, 483 U.S. 776,
bears the burden to overcome "the law's presumption
that counsel will fulfill the role in the adversary process
that the Amendment envisions. The proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms." Strickland, 466 U.S. at
688 (internal citation omitted).
Failure to Investigate, Present Evidence and Witnesses, and
Cross-Examine the Prosecution's Witnesses
has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691.
Additionally, "[c]ounsel has a duty to interview
potential witnesses and make an independent examination of
the facts, circumstances, pleadings and laws involved."
Rummei v. Estelle, 590 F.2d 103, 104 (5th Cir.1979)
(internal quotations omitted). Notwithstanding, "[e]ven
if a decision not to investigate appears unwise in hindsight,
[a court] will not hold it to have been ineffective
assistance unless the decision was 'so patently
unreasonable that no competent attorney would have chosen
it.' " Rizo v. United States, 662 Fed.Appx.
901 913-14 (11th Cir. 2016) (quoting Dingle v. Sec'y
for Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir.
2007) (citation and internal quotation marks omitted)).
decision about "which witnesses, if any, to call, and
when to call them, is the epitome of a strategic decision,
and it is one that [the court] will seldom, if ever, second
guess." Waters v. Thomas, 46 F.3d 1506, 1512
(11th Cir.1995). Relevant here, disagreement by Petitioner
with his attorney's tactics or strategies will not
support his claim of ineffective assistance of counsel. He
must overcome the presumption that the challenged conduct was
a matter of strategy. Strickland, 466 U.S. at 689;
United States v. Perry, 908 F.2d 56, 59 (6th Cir.
1990). "Even if many reasonable lawyers would not have
done as defense counsel did at trial, no relief can be
granted on ineffectiveness grounds unless it is shown that no
reasonable lawyer, in the circumstances, would have done
so." Rogers v. Zant, 13 F.3d 384, 386 (11th
The Condominium and Safe Deposit Box
of Petitioner's allegations relate to the searches of
Helen Mafilas's condominium and a First Union Bank safe
deposit box, which he contends were illegal because they were
conducted without a warrant, and, as he alleges, without
consent. Regarding Mafilas's condominium, he argues that
photos taken by Mafilas would have contradicted police
assertions that the search was conducted with his consent and
that there was no forced entry or damage. He also argues that
the photos would have been relevant to discrediting police
testimony at the 2005 and 2012 suppression hearings and
trial. And he contends that Armstrong should have
investigated the alleged damage caused by the search by
interviewing condominium staff and requesting the work order
for the door that was replaced after the search. (CV Dkt. 2
at7, 15-21; CV Dkt. 5 at 6-7, 14-15).
also contends that his attorney should have called Mafilas as
a witness (or used her testimony from the 2005 suppression
hearing) at the 2012 suppression hearing and trial. He argues
that her testimony would have contradicted assertions that
consent was obtained to search the condominium and safe
deposit box. (CV Dkt. 2 at 15-21; CV Dkt. 44 at 6). And he
contends that his attorney should have investigated video
footage from Bank of America and First Union Bank,
interviewed Bank of America personnel, and called Lydia
Baruch, a First Union Bank employee, as a trial
witness. (CV Dkt. 2 at 21, 29; CV Dkt. 5 at 4; CV
Dkt. 44 at 6). Further, he challenges inconsistent statements
by law enforcement regarding whether he gave written or oral
consent to search the condominium, what happened to the key
to the condominium after it was allegedly used to provide
entry for the search, and whether Geer threatened to arrest
Mafilas if Petitioner did not cooperate. (CV Dkt. 2 at 7, 11,
16; CRDkt. 410 at 112-16, 129, 166-68; CR Dkt. 411 at 57,
arguments are foreclosed by the Eleventh Circuit's
decision affirming his conviction, which held that this court
did not err in finding that Petitioner voluntarily consented
to the search of the condominium and safe deposit box.
See United States v. Djenasevic, 545 Fed.Appx. 946,
948-949 (11th Cir. 2013). Because the issue of consent to the
searches was resolved on direct appeal, Petitioner cannot now
reformat the issue as one of ineffective assistance of
counsel. See United States v. Nyhuis, 211 F.3d 1340,
1343 (11th Cir. 2000) (quoting United States v.
Natelli, 553 F.2d 5, 7 (2d Cir. 1977)) ("[O]nce a
matter has been decided adversely to a defendant on direct
appeal it cannot be re-litigated in a collateral attack under
respect to Petitioner's contention that Attorney
Armstrong should have called Malifas as a witness, or
introduced her prior testimony, Armstrong explains that the
photographs did not clearly show a cracked or broken door
frame, as Petitioner contends, and that he was concerned
about Mafilas' credibility. He discussed this with
Weisbrod, who shared his opinion, and determined not to
introduce the photographs or call Mafilas. (CV Dkt. 27 Ex. 2
at 5-6). A reasonable attorney would have reached the same
conclusion. And his decision about whether to call her as a
witness "is the epitome of a strategic decision, "
and will not be second guessed, regardless of
Petitioner's opinion. Waters v. Thomas, 46 F.3d
at 1512. An evidentiary inquiry is unnecessary, since
Petitioner's hindsight criticism addresses only
Armstrong's strategic decisions.
Armstrong explains that the photographs and testimony about
the state of the condominium following the search was not
relevant to the 2012 suppression hearing, as the purpose of
that hearing was to resolve Petitioner's motion to
suppress his statements, not the physical evidence.
(CV Dkt. 27 Ex. 2 at 4). As Armstrong explains,
[t]he issues in the motion to suppress statements were[:] 1)
Djenasevic's statements were involuntary because he was
in the throes of withdrawal from heroin at the time he made
the statements[J ... 2) that he was coerced to make the
statements because of threats made regarding his girlfriend,
Helen Mafilas[J and 3) violations of his Fifth and Sixth
(CV Dkt. 27 Ex. 2 at 4; See also CR Dkt. 318). In
support of those contentions, Armstrong presented, among
other evidence, medical records from the Pinellas County jail
demonstrating Petitioner's heroin withdrawal symptoms,
statements from law enforcement witnesses on
cross-examination regarding Petitioner's withdrawal
symptoms, and testimony from Petitioner. (CR Dkt. 408 at
62-27, 78-80, 96-100, 113, 120-21).
Petitioner contends that Mafilas's testimony was relevant
to impeaching the law enforcement agents' testimony
during the suppression hearing (CV Dkt. 44 at 5), his
argument does not support relief. At that hearing, this court
found that Petitioner's testimony was not credible:
Well, let me start by indicating, and I will say this to Mr.
Djenasevic, to the extent your version of the facts supports
your motion, you lost all credibility when you began arguing
with the prosecutor, when you were evasive and not answering
Candidly, I cannot place any weight on what you tell me. That
is a factual finding based on my observations of the demeanor
of the witness while testifying, the manner in which he
responded to the questions.
(CR Dkt. 408 at 137). Considering this finding, Petitioner
has not demonstrated that Mafilas's testimony would have
overcome those credibility findings, and therefore cannot
demonstrate prejudice from Armstrong's decision not to
call her as a witness, or use her prior testimony.
Petitioner demonstrate that Armstrong's decision not to
call Lydia Baruch as a witness was unreasonable. Armstrong
maintains that although he could not recall his exact
conversation with Baruch, her testimony would not have helped
the defense. He explains that despite witnessing Petitioner
sign the consent form, "she opened the [safe deposit]
box after [Petitioner] signed[J suggesting that she believed
his consent was voluntary." (CV Dkt. 27 Ex. 2 at 7).
Again, Armstrong's decisions not to introduce the
photographs or Mafilas's testimony, and not to call
Baruch as a witness, fall within the bounds of reasonable
trial strategy that will not be second-guessed, or be
subjected to evidentiary scrutiny.
Law Enforcement Buy Money
aspect of Petitioner's arguments relate to the "buy
money" used by undercover law enforcement officers to
purchase heroin from Petitioner and his associate, Richard
Barthel. He contends that his trial counsel should have
investigated and presented to the jury discrepancies in law
enforcement records for the money used to purchase the
heroin. (CV Dkt. 2 at 6, 8, 9, 29-30; Dkt. 5 at 12, 17-18;
Dkt. 44 at 2). Specifically, he notes that law enforcement
maintained that $1400 in marked money from drug transactions
on December 23 and 28, 2000, was found in the safe deposit
box at First Union Bank. (CV Dkt. 2 at 8; CR Dkt. 411 at 12,
42-51). He argues that: (1) the money could not have been
from the transactions on December 23 and 28, 2000, since the
last recorded entry to the safe deposit box was December 19,
2000 (CV Dkt. 2 at 8, 12; CV Dkt. 1 Ex. 1 at 2), and (2) the
police form for the recorded buy money noted that the money
was used December 28, 2000, but the original notation was
crossed out and December 5, 2000, was subsequently written
in. (CV Dkt. 2 at 9). Petitioner also contends that the sums
recovered did not match the amounts claimed to have been used
by law enforcement, and the money was identified on January
5, 2001, but the report of that identification was dated
January 4, 2001. (CV Dkt. 5 at 12-14). Finally, he argues
that the money came from lawful sources, an inheritance and
the sale of a business, and that his attorney < erred by
not eliciting that fact during trial. (CV Dkt. 2 at 12).
trial transcript reveals that Armstrong addressed these
issues at trial. Among other things, on cross-examination of
Major Morman, who assisted in the search of the safe deposit
box, Armstrong raised the issue of the alternate dates found
on the form used to reconcile the buy money with the money
found in Petitioner's possession. Morman acknowledged
that a date other than December 5, 2000 could have been
written on the form, but that he could not clearly make it
out and that the December 5, 2000 date was written by him.
(CR Dkt. 410 at 163, 178). Armstrong also addressed the date
discrepancy in his closing argument, along with evidence that
serial numbers on the buy money did not match police records.
(CR Dkt. 412 at 34-36). It is apparent therefore, that
Armstrong investigated and raised discrepancies related to
the buy money at trial, contrary to Petitioner's
next focuses on what he perceives to have been errors by his
attorney relating to the location of and circumstances of his
arrest. Specifically, he asserts that he made a recorded
phone call to Barthel after his arrest which would establish
that no sale of heroin occurred at the Amoco station, but
that his counsel did not demand that the call be produced.
(CV Dkt. 2 at 12; CV Dkt. 5 at 4). He also challenges a call
made by Barthel to arrange the purchase of heroin from
Petitioner at the Bennigans (CV Dkt. 44 at 7), and argues
that his attorney failed to investigate the location of and
witnesses to this, and whether or not he sold heroin to
Barthel immediately before his arrest. (CV Dkt. 2 at 6; CV
Dkt. 5 at 4, 14, 19).
these contentions do not support relief. Although he contends
that he was to meet Barthel at the Amoco, rather than
Bennigans, (CV Dkt. 2 at 6; CV Dkt. 5 at 4, 14), Petitioner
does not contest that he arranged to meet with Barthel on
January 3, 2001, and that he was arrested at Bennigans that
day. And Armstrong cross-examined Barthel, Agent Geer, and
Major Morman about the location where Petitioner was to meet
Barthel that day. (CR Dkt. 410 at 85-86, 170-71; CR Dkt. 411
at 105-06). And, although Detective Jones testified that
Petitioner sold heroin to Barthel on January 3, 2001 (CR Dkt.
410 at 221), Agent Geer testified "the intention was to
arrest [Petitioner]... before contact [with Barthel] was
made, " and that he could not recall if ...