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Sereme v. United States

United States District Court, M.D. Florida, Fort Myers Division

July 25, 2019

JUDE SEREME, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE SR. UNITED STATES DISTRICT JUDGE

         This 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. #1)[1] 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 is denied.

         Also 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.

         I. Procedural History

         On 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).

         The 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).

         Sereme 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, p. 3).

         Petitioner 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.

         On June 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).

         Upon 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.

         (Id., 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. 25).

         At the 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).

         Sereme 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.

         II. Legal Standards A. Evidentiary Hearing and Appointment of Counsel

          A 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 715.

         To 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.

         Because 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.

         B. Ineffective Assistance of Trial and Appellate Counsel

          The 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 ...


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