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United States v. Spiker

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

July 6, 2018

UNITED STATES OF AMERICA
v.
ROBERT EUGENE SPIKER

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court upon Petitioner's “Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody” (ECF No. 3)[1], and the Government's Response thereto (ECF No. 5). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 Motion should be denied. See Rules 8(a) and (b) Governing Section 2255 Cases.

         I. BACKGROUND

         On June 27, 2013, a federal grand jury returned a five-count indictment charging Petitioner with soliciting the murder of an Assistant United States Attorney (AUSA Mark B. Devereaux) and a Federal Magistrate Judge (The Hon. Thomas E. Morris) and attempting to murder Mr. Devereaux. (ECF No. 1 in 3:13-cr-127.) Mr. Devereaux was the AUSA prosecuting a perjury case against Petitioner, and Judge Morris was the United States Magistrate Judge presiding over it. Petitioner was in federal custody on the perjury charges when he made plans to have Mr. Devereaux and Judge Morris murdered.

         Counts One and Two charged Petitioner with threatening to murder a federal official (an AUSA and a United States Magistrate Judge, respectively), in violation of Title 18, United States Code, Section 115; Counts Three and Four charged Petitioner with solicitation to commit the murder of an officer and employee of the United States (an AUSA and a United States Magistrate Judge, respectively), in violation of Title 18, United States Code, Sections 1114 and 373; Count Five Charged Petitioner with attempting to kill an officer and employee of the United States (an AUSA), in violation of Title 18, United States Code, Sections 1114 and 1113. The Court appointed attorney Roland Falcon to represent Petitioner. (ECF No. 11 in 3:13-cr-127.)

         On January 22, 2014, Petitioner pleaded guilty to Counts Three, Four, and Five pursuant to a plea-bargain agreement in exchange for the Government's promise to dismiss Counts One and Two at Sentencing. (ECF No. 25 in 3:13-cr-127.) Thereafter, a United States Probation Officer prepared a Pre-Sentence Investigation Report (“PSR”). The PSR assessed a base offense level of 33. PSR at ¶ 86. After applying various upward adjustments and a downward adjustment of three levels for acceptance of responsibility, Petitioner's total offense level was 39. Id. at ¶¶ 44-56.

         Each of Counts Three, Four, and Five carried a statutory maximum term of imprisonment of twenty years, a three-year term of supervised release, a $250, 000 fine, and a $100 Special Monetary Assessment (SMA) Id. at ¶ 128. Based upon a total offense level of 39 and a criminal history category of VI, the Guideline imprisonment range was 360 months to life imprisonment. The statutory maximum, however, became the maximum of the Guidelines range. Id. at ¶ 129.

         On March 31, 2014, United States District Judge Mark E. Walker sentenced Petitioner to 240 months as to each count, to run consecutively, for a total of 720 months, a three-year term of supervised release, and a $300 SMA. (ECF Nos. 41 & 42 in 3:13-cr-127.)

         Petitioner's counsel moved to withdraw from further representation of Petitioner and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). On November 19, 2014, the Eleventh Circuit Court of Appeals granted counsel's motion and affirmed Petitioner's conviction and sentence. (ECF No. 56 in 3:13-cr-127.)

         On February 25, 2016, Petitioner executed the instant § 2255 Motion, in which he asserts three claims of ineffective assistance of counsel and one claim of trial court error.

         II. DISCUSSION

         A. General Legal Standard

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to Section 2255 are extremely limited. A prisoner is entitled to relief under Section 2255 if the court imposed a sentence that: (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice" exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent . . . ." The law is well established that a district court need not reconsider issues raised in a Section 2255 motion which have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under Section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects").

         Because a motion to vacate under Section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a Section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234B35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “'available' on direct appeal when its merits can be reviewed without further factual development." Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a Section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is “actually innocent." Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that “some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

         Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a' 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). In order to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, a court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at ...


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