United States District Court, M.D. Florida, Orlando Division
ANTOON, II UNITED STATES DISTRICT JUDGE.
Edward Osman ("Petitioner") filed a Motion to
Vacate, Set Aside, or Correct Sentence (Doc. 1) pursuant to
28 U.S.C. § 2255, alleging one ground for relief,
ineffective assistance of counsel. Respondent filed a
Response to the Motion to Vacate (Doc. 4) in compliance with
this Court's instruction. Although given the opportunity
to do so (Doc. 5), Petitioner did not file a reply. For the
following reasons, the Motion to Vacate will be denied.
was indicted for producing child pornography (Counts One
through Six), distributing and receiving child pornography
(Counts Seven and Eight), and possession of child pornography
(Count Nine). (Criminal Case 6:13-cr-280-Orl-28GJK, Doc.
Pursuant to a written plea agreement, Petitioner pleaded
guilty to Counts One, Seven, and Nine. (Criminal Case, Doc.
34.) Following a sentencing hearing, the Court sentenced
Petitioner to seven hundred twenty (720) months (i.e., sixty
years) of imprisonment and restitution to the victim in the
amount of $16, 250. (Criminal Case, Docs. 58, 103.)
appealed the restitution order, and the Eleventh Circuit
affirmed it. (Criminal Case, Doc. 105, 109); United
States v. Osman, 853 F.3d 1184 (11th Cir. 2017).
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court of the United States established a two-part
test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective
assistance: (1) whether counsel's performance was
deficient and "fell below an objective standard of
reasonableness"; and (2) whether the deficient
performance prejudiced the defense. Id. at 687-88. A
court must adhere to a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at
689-90. "Thus, a court deciding an actual
ineffectiveness claim must judge the reasonableness of
counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's
conduct." Id. at 690; Gates v. Zant,
863 F.2d 1492, 1497 (11th Cir. 1989).
observed by the Eleventh Circuit Court of Appeals, the test
for ineffective assistance of counsel:
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). Under those rules and
presumptions, ''the cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance
of counsel are few and far between." Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994).
case, Petitioner claims that his trial counsel rendered
constitutionally ineffective assistance of counsel by failing
to challenge the validity of the indictment. (Doc. 1 at 4;
Doc. 1-1 at 1.) Petitioner generally contends that the
indictment "violated his Fifth Amendment rights to due
process and to a Grand Jury's protections from arbitrary
and oppressive government action, and from being harassed by
unfounded and vexatious accusations." (Doc. 1-1 at 3.)
He further claims, with regard to the Fifth Amendment, that
"the indictment's vague allegations [do not] provide
adequate protection for [his] grand jury and double jeopardy
rights." (Doc. 1-1 at 7, 11-15, 17-18, 20.) Petitioner
also claims that the indictment violated his Sixth Amendment
rights because it did not adequately inform him of the nature
of the accusations against him (See e.g., Doc. 1-1
at 1-2, 6-7, 9-10, 20.) However, these claims do not entitle
Petitioner to relief.
Supreme Court has explained that
a guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the