United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
the Court is Cordell Felix's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence (Cv.
Doc. 1) and Memorandum in Support (Cv. Doc.
1-1) filed on April 24, 2019. The Government filed a
response in opposition (Cv. Doc. 7), and Felix filed
a reply (Cv. Doc. 9). This matter is fully briefed
and ripe for review. For the following reasons, the Court
denies the motion.
August 5, 2015, Felix was charged in a two-count Indictment.
(Cr. Doc. 1). On February 25, 2016, after a bench
trial on stipulated facts, the Court found Felix guilty of
Count one, possession of a firearm and ammunition by a
convicted felon under 18 U.S.C. § 922(g)(1) and §
924(e)(1). (Cr. Doc. 52). On October 7, 2016, after
determining that Felix was subject to enhanced penalties
under the Armed Career Criminal Act, the Court sentenced
Felix to 180 months in prison, followed by five years of
supervised release. (Cr. Doc.85). Felix appealed his
conviction and sentence. (Cr. Doc. 88). The Eleventh
Circuit affirmed Felix's conviction and sentence and the
United States Supreme Court denied Felix a writ of
certiorari. United States v. Felix, 715
Fed.Appx. 958, 965 (11th Cir. 2017), cert. denied,
138 S.Ct. 1711 (2018).
April 24, 2019, Felix filed the instant § 2255 motion.
(Cv. Doc. 1). Felix moves to vacate his sentence on
three grounds. (Cv. Doc. 1-1). All three grounds
turn on whether the stop and frisk by Officer Ursitti that
preceded Felix's arrest violated the Fourth Amendment.
(Cv. Doc. 1-1). The Government filed a response to
Felix's § 2255 motion. (Cv. Doc. 7). The
Government concedes the § 2255 motion is timely
(id. at 4, fn. 2) and the Court agrees. Nonetheless,
the Government contends that the three claims raised in the
§ 2255 motion are procedurally barred because the
Eleventh Circuit rejected the stop and frisk issue on direct
appeal. (Cv. Doc. 7 at 4 n.2, 6).
does not request an evidentiary hearing. (See generally
Cv. Doc. 1). Nonetheless, the Court recognizes its
obligation under 28 U.S.C. § 2255(b) and independently
finds an evidentiary hearing is not warranted because the
“files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C.
ground one, Felix claims his Fourth Amendment rights were
violated because Officer Ursitti did not possess
“reasonable suspicion” to conduct the stop and
frisk of Petitioner because (a) Officer Ursitti was only
constitutionally-permitted to search one street in the
neighborhood into which the armed robbers fled, but not the
street on which the Petitioner was found, (b) Petitioner was
not sweating or acting nervous when stopped, and (c)
Petitioner dropped to his knees during the Terry
stop and purportedly posed no threat, so no
“pat-down” was necessary. (Doc. 1-1 at 1-3). In
his third claim for relief, Felix attributes trial court
error to the Court in denying his motion “to suppress
all evidence derived from” Officer Ursitti's stop
and frisk because even if the stop of the Petitioner was
reasonable at the outset, the pat down was not supported by
reasonable suspicion that Petitioner might be armed, and
specifically, that the robbery victim needed to positively
identify the Petitioner as the armed robber before officers
could check to see if he was armed. (Doc. 1-1 at 5-6).
direct appeal, Felix challenged on Fourth Amendment grounds
the Court's denial, after a suppression hearing, of his
motion to suppress on the basis that Officer Ursitti did not
have a reasonable suspicion to stop him. Specifically, Felix
argued “that the fact that he may have met what was a
broad description of the suspects did not constitute a
particularized fact sufficient to support a finding of
reasonable suspicion.” Felix, 715 Fed.Appx. at
961 (Cr. Doc. 113 at 7). The Eleventh Circuit in
affirming the Court's order denying the motion to
suppress found that “[b]ased on the totality of the
circumstances, Officer Ursitti had reasonable
suspicion” to engage in an investigatory stop of Felix
and further concluded that “patting him down for
weapons” was “well within the bounds of the
Fourth Amendment and Terry.” Felix at
963 (Cr. Doc. 8-10). This Court “is not required to
reconsider claims of error that were raised and disposed of
on direct appeal.” United States v. Nyhuis,
211 F.3d 1340, 1343 (11th Cir. 2000) (“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.” Ibid.; see also
Hidalgo v. U.S., 138 Fed.Appx. 290, 291 (11th Cir.
2005). To the extent Felix contends that the
arguments in support of these two grounds are different than
the argument he raised on direct appeal, such argument fails.
Felix's argument in support of each of these grounds is
“materially identical” to the claim he raised on
direct appeal. Hidalgo at 293. Even if different,
Felix “cannot repackage the same facts as a different
argument” because any new arguments based upon facts
that previously existed would now be procedurally barred.
Id. at 294 (citing Lynn v. United
States, 365 F.3d 1225, 1234 (11th Cir. 2004). Thus,
because Felix raised the issue upon which his claims are
predicated on direct appeal, the Court will not consider them
again in his collateral motion. Consequently, the Court
denies grounds one and three.
ground two, Felix asserts a Sixth Amendment violation
claiming trial counsel purportedly failed to challenge the
stop by Officer Ursitti on reasonable suspicion grounds, as
opposed to probable cause grounds, and specifically, failed
to argue that if Officer Ursitti had taken a different route
to the neighborhood into which the armed robbers fled,
Ursitti may have apprehended the armed robbers. (Cv. Doc.
1-1 at 3-5). At the outset, Felix's attempt to
repackage his Fourth Amendment claim as ineffective
assistance of counsel claim fails. United States v.
Nyhuis, 211 F.3d at 1343. Furthermore, the record
refutes the factual basis of Felix's claim because trial
counsel did challenge on Fourth Amendment grounds the stop
and frisk in a motion to suppress arguing that “Officer
Ursitti did not have reasonable suspicion to stop”
Felix. (Cr. Doc. 20 at 4). After response by the
Government (Cr. Doc. 24), the Court held a
suppression hearing. (See docket entry dated
December 2, 2015). Thereafter, the Court denied the motion to
suppress. (Cr. Doc. 43). As discussed
supra, the Eleventh Circuit Court of Appeals
affirmed the Court's denial of the motion to suppress.
Thus, even if counsel had failed to move to suppress the
stop, Felix cannot show counsel was deficient as required by
Strickland because he cannot show the outcome of the
proceedings would have been any different because the
Eleventh Circuit has already determined Felix's Fourth
Amendment challenge to the stop and frisk on direct appeal
was without merit. Felix, 715 Fed.Appx. at 961-63
(finding Officer Ursitti's stop and frisk was lawful).
it is now
1. Felix's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Doc. 1) is
2. The Clerk is DIRECTED to enter judgment
accordingly, terminate any pending motions, and ...