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Djenasevic v. United States

United States District Court, M.D. Florida, Tampa Division

June 8, 2018

KABIL ANTON DJENASEVIC, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          ORDER

          JAMES D. WHITTEMORE, United States District Judge

         BEFORE 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).[1]Upon review, Petitioner's Section 2255 motion is DENIED.

         Procedural Background

         Petitioner 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).

         While 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, 66).

         Prior 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).

         Petitioner's 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).

         Petitioner 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. 2011).

         On 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).

         The 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).

         In the 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 4).[2]

         Discussion

         A two-part test applies in analyzing ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687 (1984). According to Strickland, Petitioner must:

[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 assistance claims:

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, 794 (1987)).

         Petitioner 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).

         1. Failure to Investigate, Present Evidence and Witnesses, and Cross-Examine the Prosecution's Witnesses

         "[C]ounsel 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)).

         The 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 Cir.1994).

         A. The Condominium and Safe Deposit Box

         Several of Petitioner's allegations relate to the searches of Helen Mafilas's[3] 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).

         Petitioner 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.[4] (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, 141-44, 147-48).

         Petitioner's 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 section 2255.").[5]

         With 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.

         Moreover, 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 Amendment rights.

(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).[6]

         Although 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 questions directly.
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.

         Nor can 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.

         B. Law Enforcement Buy Money

         Another 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).

         The 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 assertions.[7]

         C. Petitioner's Arrest

         Petitioner 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).

         Notwithstanding, 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 ...


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