United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SR. UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner Jude Sereme's
(Petitioner or Sereme) pro se Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Cr. Doc. #673; Cv. Doc.
and Memorandum of Law to Support (Cr. Doc. #674; Cv. Doc. #2)
filed on April 25, 2016. The United States filed a Response
in Opposition on June 23, 2016, to which Petitioner filed a
Response on July 18, 2016. (Cv. Docs. #7; #8). For the
reasons set forth below, Petitioner's § 2255 motion
pending before the Court are Petitioner's Motion to Amend
Motion to Vacate, Set Aside or Correct Sentence, In Pursuant
to Federal Rules of Civil Procedure 15(A)(C)(2) and Motion
for an Order for the Government to Show Cause Why He Should
Not Be Resentenced Absent the Career Offender in Light of the
Supreme Court's Decision in Mathis v. United
States. (Cv. Docs. #10; 11). Sereme's motion to
amend his § 2255 motion is granted to the extent the
Court will consider this claim as set forth below, and his
motion for an order for the government to show cause is
denied as moot.
September 5, 2012, a federal grand jury in Fort Myers,
Florida returned a twelve-count Second Superseding Indictment
charging Petitioner and six co-defendants with various drug
offenses. (Cr. Doc. #282). Count One charged Petitioner and
six others with conspiracy to manufacture, possession with
intent to distribute, and distribution of 280 grams or more
of cocaine base, also known as crack cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) and 846.
(Id., pp. 1-2). In addition to the conspiracy,
Petitioner was charged in Count Three with knowing and
willful possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
(Id., p. 3). On September 14, 2012, the government
filed a notice of intent to enhance Sereme's sentence
under 21 U.S.C. § 851 because he had two qualifying
prior drug convictions. (Cr. Doc. #325).
Court conducted an eleven-day trial. On October 5, 2012, the
jury returned a verdict finding Sereme guilty of Counts One
and Three. (Cr. Doc. #383, pp. 1, 4). As to Count One, the
jury found that the amount of cocaine base involved in the
conspiracy was more than 280 grams. (Id., pp. 2-3).
was sentenced on May 13, 2013. (Cr. Docs. # 541; #559; #560;
#561). Because Sereme was found guilty of a conspiracy
involving more than 280 grams of cocaine base under 21 U.S.C.
§ 841(b)(1)(A)(iii) and had two prior felony drug
convictions, he faced a mandatory term of life imprisonment.
(Cr. Docs. #560; #561). After finding the government filed a
timely and adequate notice under 21 U.S.C. § 851, the
undersigned sentenced Petitioner to a term of life
imprisonment as to Count One, and 300 months imprisonment as
to Count Three, to be served concurrently. (Cr. Docs. #537;
542). In addition, the undersigned imposed a term of six
years supervised release as to Count Three. (Cr. Doc. #542,
filed a Notice of Appeal on May 15, 2013. (Cr. Doc. #543). On
direct appeal, Sereme raised two issues. First, Sereme argued
the trial court erred in denying his motion to suppress
because (a) there was no legal basis to conduct a second
search of his person during the traffic stop and (b) even if
the second search was permissible, the second search exceeded
the permissible scope of a personal search. See
Appellant's Br., United States v. Hyppolite,
13-10471 (11th Cir. Nov. 25, 2013); see also United
States v. Hyppolite, 609 Fed.Appx. 597, 603 (11th Cir.
2015). Second, Sereme argued the trial court improperly
enhanced his sentence under 21 U.S.C. § 851 because (a)
the government failed to comply with the strict notice
requirements under the statute and (b) the notice was
untimely. See Appellant's Br., United States
v. Hyppolite, 13-10471 (11th Cir. Nov. 25, 2013);
see also Hyppolite, 609 Fed.Appx. at 608-09.
25, 2015, the Eleventh Circuit affirmed Petitioner's
convictions, but vacated the Judgment and remanded the case
to the trial court for resentencing. See Hyppolite,
609 Fed.Appx. at 612. Specifically, the Eleventh Circuit
found that the government failed to satisfy the notice
requirements of 21 U.S.C. § 851 and, therefore, the
undersigned erred in finding that the government's
notices of intent to enhance Sereme's sentence were
timely and in compliance with the requirements under the
statute. See Id. Sereme thereafter filed a petition
for writ of certiorari, which the Supreme Court denied on
November 2, 2015. See Sereme v. United States, 136
S.Ct. 430 (2015).
remand, the District Court conducted a resentencing hearing
on September 28, 2015. (Cr. Doc. #648). Sereme's new
Presentence Investigation Report reflected the adjustments to
his offense level computation without the § 851
enhancements. (Cr. Doc. #647). Under the 2014 United States
Sentencing Guidelines, Sereme's Base Offense Level was
calculated at 30 because the jury found the conspiracy
involved more than 280 grams of cocaine base.
p. 12). There were two enhancements to his offense level.
First, under U.S.S.G. § 3B1.1(a), petitioner received a
four-level increase because he was found to be an
organizer/leader of the drug distribution organization.
(Id., p. 13). Next, his offense level was increased
to 37 because he qualified as a career offender pursuant to
U.S.S.G. § 4B1.1 since he was 28 years-old and he had at
least two prior felony convictions of either a crime of
violence or a controlled substance offense. (Id.).
Because he was deemed a career offender under U.S.S.G. §
4B1.1, his Criminal History Category was calculated at a VI.
(Id., p. 21). This yielded an advisory sentencing
range of 360 months to life imprisonment. (Cr. Doc. #647, p.
hearing, the undersigned varied below the Guidelines and
sentenced Sereme to a term of 300 months imprisonment as to
Count One, and 240 months imprisonment as to Count Three, to
be served concurrently. (Cr. Doc. #648, p. 2). Additionally,
the undersigned imposed a concurrent term of supervised
release of five years as to Count One and three years as to
Count Three. (Id., p. #3).
now seeks relief under 28 U.S.C. § 2255. The government
concedes that Sereme timely filed his § 2255 motion (Cv.
Doc. #7, pp. 3-4), and the Court agrees.
Legal Standards A. Evidentiary Hearing and Appointment of
district court shall hold an evidentiary hearing on a habeas
corpus petition “unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief[.]” 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts that, if true, would
entitle him to relief, then the district court should order
an evidentiary hearing and rule on the merits of his
claim.” Aron v. United States, 291 F.3d 708,
714-15 (11th Cir. 2002) (citation omitted). However, a
district court is not required to hold an evidentiary hearing
where the petitioner's allegations are patently
frivolous, based upon unsupported generalizations, or
affirmatively contradicted by the record. See id. at
establish entitlement to an evidentiary hearing, petitioner
must “allege facts that would prove both that his
counsel performed deficiently and that he was prejudiced by
his counsel's deficient performance.” Hernandez
v. United States, 778 F.3d 1230, 1232-33 (11th Cir.
2015). The Court finds that the record establishes that
Petitioner is not entitled to relief and, therefore, an
evidentiary hearing is not required.
Petitioner's motion for an evidentiary hearing is denied,
appointment of counsel is not required under Rule 8(c), Rules
Governing Section 2255 Proceedings for the United States
District Court. Petitioner is not otherwise entitled to
appointment of counsel in this case. See Barbour v.
Haley, 471 F.3d 1222, 1227 (11th Cir. 2006) (stating
there is no Sixth Amendment right to counsel in
post-conviction collateral proceedings); see also Schultz
v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983)
(“Counsel must be appointed for an indigent federal
habeas petitioner only when the interest of justice or due
process so require.”). Neither the interest of justice
nor due process requires the appointment of counsel here.
Ineffective Assistance of Trial and Appellate
legal standard for ineffective assistance of counsel claims
in a habeas proceeding is well established. To prevail on a
claim of ineffective assistance of counsel, a habeas
petitioner must demonstrate both that (1) counsel's
performance was deficient because it fell below an objective
standard of reasonableness and (2) prejudice resulted because
there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been
different. See Hinton v. Alabama, 571 U.S. 263,
272-73 (2014) (citing Strickland v. Washington, 466
U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)). “Because a petitioner's
failure to show either deficient performance or prejudice is
fatal to a Strickland claim, a ...