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United States v. Nestor

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

June 28, 2018

UNITED STATES OF AMERICA
v.
RUSSELL JOHN NESTOR

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

         On March 17, 2001, twenty-three-year-old Paul Kniep ingested a fatal dose of gamma-butyrolactone (GBL). Convicted of distributing the GBL that resulted in Kniep's death, Russell John Nestor moves (Doc. 1) under 28 U.S.C. § 2255 to vacate his sentence and alleges ineffective assistance of trial counsel.

         Background

         A month before Paul Kniep died, Tampa police began surveilling Nestor's house based on a report that Nestor was involved in another GBL overdose. (Doc. 158 at 33-36) Nestor lived with a married couple, Detta and Patrick Spence, and a third roommate, Danny Golden. Golden was Paul Kniep's childhood friend, and Golden introduced Kniep to Nestor and to GBL.[1] (Doc. 159 at 85) During three weeks of surveillance, police at least four or five times saw Kniep's red 1967 Pontiac LeMans parked outside Nestor's house. (Doc. 158 at 37-38)

         At 7:29 a.m. on March 17, 2001, Patrick Spence called 911 to report that Kniep “pulled up overnight and is dead in my driveway.” (Doc. 158 at 90, 155, 212; Pre-Sentence Report at ¶ 27) Although Kniep was found sitting in the driver's seat of his LeMans, his lividity suggested that he died lying down. (Doc. 158 at 165-166) The Spences later admitted that Kniep died inside the house and claimed that Nestor insisted on moving the body. (Doc. 158 at 209; Pre-Sentence Report at ¶ 19)

         Police seized 9.8 gallons of concentrated GBL from Patrick Spence's van. From Nestor's bedroom, police seized videos that appeared to show Nestor's intoxicated female customers suffering sexual assault. (Doc. 159 at 109-111; Doc. 161 at 220-221; Pre-Sentence Report at ¶ 17)

         The Spences pleaded guilty to making their house available to Nestor for storing, distributing, and using GBL. (8:01-cr-270-1 and 8:01-cr-270-2) Nestor went to trial for conspiring to distribute and to possess with intent to distribute GBL, a controlled substance analogue to GHB (count I); distributing GBL that resulted in the death of Paul Kniep (count II); possessing 9.8 gallons of GBL with the intent to distribute (count III); and distributing GBL with the intent to commit sexual assault (count IV). Answering a special interrogatory, the jury found that GBL is a controlled substance analogue of GHB, and the jury convicted Nestor of the offenses in counts I, II, and III. (Doc. 95)

         Nestor was sentenced to 360 months' imprisonment on counts I and III, a concurrent 420 months' imprisonment on count II, and five years of supervised release. The Eleventh Circuit affirmed (Doc. 172), and the Supreme Court denied certiorari on May 3, 2004. (Doc. 180)

         On July 1, 2013, Nestor moved (Doc. 1) to vacate his sentence. A March 31, 2017 order (Doc. 12) confirms Nestor's entitlement to equitable tolling based on attorney abandonment but defers ruling on the motion's timeliness. Because the motion is denied on the merits, a determination on the knotty issue of timeliness is forborn.

         Ineffective assistance

         To demonstrate that counsel was constitutionally ineffective, a movant must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the movant. Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

         1. Failure to negotiate a plea agreement

         In ground one, Nestor argues that counsel failed to negotiate a plea agreement or substantial assistance motion. The United States represents (Doc. 6 at 13) that “the government stood on the strength of its evidence, particularly the videos, and was not inclined to extend a plea offer.”

         “[A] defendant has no right to be offered a plea, nor a federal right that the judge accept it.” Missouri v. Frye, 566 U.S. 134, 148 (2012) (internal citation omitted). Nestor alleges no “reasonably specific, non-conclusory fact” to suggest that the United States was willing to negotiate a plea agreement or to file a substantial assistance motion. Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (internal quotation marks omitted). Indeed, Nestor concedes that counsel told him that the United States “was not inclined to make an offer.” (Doc. 9-3 at ¶ 3) Counsel is not deficient for failing to pursue unavailable negotiations.[2]

         2. Failure to investigate

         In ground two, Nestor alleges that counsel performed an inadequate pre-trial investigation because during thirteen months of pre-trial incarceration Nestor met with counsel in person only once, he met with a defense investigator twice, he spoke with counsel on the telephone twice, and he received two letters from counsel. (Doc. 9-3 at ¶ 2)

         “[T]he brevity of time spent in consultation, without more, does not establish that counsel was ineffective.” Jones v. Estelle, 622 F.2d 124, 127 (5th Cir. 1980) (“[I]t is not enough to show that counsel only met with [the petitioner] once before trial, as long as counsel was adequately prepared.”). Instead, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Williams v. Allen, 598 F.3d 778, 793 (11th Cir. 2010) (internal quotation marks omitted).

         Nestor identifies three purported deficiencies in counsel's investigation. First, Nestor alleges (Doc. 1 at 18) that counsel failed to “understand” that eyewitness Ken Osiel was available to testify. However, that allegation is definitively contradicted by Nestor's reply (Doc. 23 at 9), which states that counsel “recognized the importance of [Osiel's] information” and “called in his investigator and video recorded the complete statement of Ken Osiel.”

         Second, Nestor argues that counsel overlooked Patrick Spence's account of the night Kniep died. But Nestor concedes (Doc. 9-3 at ¶ 8) that Spence's story materialized only after sentencing, and Nestor does not allege that - before trial - he or any other source notified counsel of Spence's account. See Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 752 (11th Cir. 2010) (“[I]n evaluating the reasonableness of a defense attorney's investigation, we weigh heavily the information provided by the defendant.”); Lambrix v. Singletary, 72 F.3d 1500, 1506 (11th Cir. 1996) (“[C]ounsel cannot be held responsible for failing to find mitigating evidence if, after a reasonable investigation, nothing has put the counsel on notice of the existence of that evidence.”)

         Third, Nestor alleges that if counsel spent more time with him, Nestor “would have helped [counsel] understand” that police reports contradicted Detective Charles Massucci's trial testimony. (Doc. 9-3 at ¶¶ 5-7) But Nestor does not dispute that counsel obtained the police reports, and Nestor fails to describe what other investigation was reasonably necessary.

         Nestor's central challenge lies with counsel's overall trial strategy, including the decision to omit Osiel's and Spence's testimony and to limit Massucci's cross-examination. As explained below, Nestor falls well short of demonstrating that counsel's trial strategy was “outside ...


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