United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Eric Bonita’s (Petitioner or
Bonita) pro se Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody filed on September 26, 2016. (Cr. Doc. #682; Cv. Doc.
After the Court granted leave, Petitioner filed a
Supplemental Motion under 28 U.S.C. § 2255 on October 7,
2016. (Cr. Docs. #687, #688, #689; Cv. Docs. #5, #6, #7). The
United States filed an Amended Response in Opposition on
November 23, 2016 (Cv. Doc. #14), to which Petitioner filed a
Reply (Cv. Doc. #17) and Sworn Affidavit (Cv. Doc. #18) on
December 27, 2016. For the following reasons, Bonita’s
§ 2255 motion is denied.
September 28, 2011, a federal grand jury in Fort Myers,
Florida returned a twelve-count Indictment charging
Petitioner and nine co-defendants with various drug offenses.
(Cr. Doc. #3). Count One charged Petitioner and nine others
with conspiracy to manufacture, possession with intent to
distribute, and distribution of 28 grams or more of cocaine
base, also known as crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(iii) and 846.
(Id., pp. 1-2). In addition to the conspiracy,
Petitioner was charged in Count Eleven with knowing and
willful distribution of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). (Id., pp. 5-6).
Appointed counsel, Richard Lakeman (“Attorney
Lakeman”), represented Bonita at trial. (Cr. Doc. #28).
Bonita pled not guilty to both counts of the Indictment on
October 21, 2011. (Cr. Docs. #31; #727). On April 5, 2012,
the government filed a notice of intent to enhance
Bonita’s sentence under 21 U.S.C. § 851 because he
had five prior felony drug convictions. (Cr. Doc. #199).
Based upon the charges under the Indictment and the
government’s § 851 notice, Bonita faced an
enhanced penalty of a minimum mandatory term of ten years up
to life imprisonment, without parole, as to Count One, and a
maximum term of imprisonment of 30 years as to Count Eleven.
(Id., pp. 2-3).
August 9, 2012, a federal grand jury returned a Superseding
Indictment, which expanded the amount of crack cocaine
charged under the conspiracy. (Cr. Doc. #249). 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)(B)(iii) and 846. (Id., pp. 1-2).
Count Ten charged Petitioner with distribution of cocaine on
or about September 27, 2011 in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). (Id., p. 6). Count Twelve
charged Petitioner with distribution of crack cocaine on or
about October 13, 2011 in violation of 21 U.S.C. § 841
(a)(1) and (b)(1)(C). (Id., p. 7).
next day, the government filed a notice of intent to enhance
Bonita’s sentence under 21 U.S.C. § 851 due to his
five prior felony convictions. (Cr. Doc. #251). Based upon
the increased amount of crack cocaine charged under the
Superseding Indictment and Bonita’s prior felony
convictions, he faced an enhanced penalty of a minimum
mandatory term of life imprisonment, without parole, as to
Count One, and a maximum term of imprisonment of 30 years as
to Counts Ten and Twelve. (Id.). Bonita pled not
guilty to the Superseding Indictment on August 13, 2012. (Cr.
on September 5, 2012, a federal grand jury returned a Second
Superseding Indictment, which decreased the time frame of the
conspiracy under Count One. (Cr. Doc. #282). The charges
otherwise remained the same as stated in the Superseding
Indictment. (Id.). Bonita pled not guilty to the
Second Superseding Indictment on September 10, 2012. (Cr.
Doc. #296). The government again filed a notice of intent to
enhance Bonita’s sentence under 21 U.S.C. § 851.
(Cr. Doc. #323). Petitioner still faced a mandatory minimum
sentence of life imprisonment as to Count One and a maximum
term of thirty years as to Counts Ten and Twelve.
Court conducted an eleven-day trial. At the conclusion of the
government’s case-in-chief, Bonita moved for judgment
of acquittal, which the Court granted as to Count Twelve.
(Cr. Doc. #497, p. 85). On October 5, 2012, the jury returned
a verdict finding Bonita guilty of Counts One and Ten. (Cr.
Doc. #383, pp. 2, 6). As to Count One, the jury found that
the amount of cocaine base involved in the conspiracy was
more than 280 grams. (Id., p. 3).
Court sentenced Bonita on January 22, 2013. (Cr. Docs. #446,
#448). Because Bonita had at least two prior felony drug
convictions and was found guilty of a conspiracy involving
more than 280 grams of cocaine base, he faced a mandatory
term of life imprisonment under 21 U.S.C. §
841(b)(1)(A)(iii). (Cr. Doc. #297). The undersigned sentenced
Petitioner to a term of life imprisonment as to Count One,
and 30 years of imprisonment as to Count Ten, to be served
concurrently. (Cr. Doc. #448, p. 2). In addition, the
undersigned imposed a term of ten years supervised release as
to Count One and six years as to Count Ten, to run
concurrently. (Id., p. 3).
filed a Notice of Appeal on January 28, 2013. (Cr. Doc. #454).
Attorney Lakeman represented Bonita on appeal. Bonita,
through counsel, raised the following ten issues before the
Eleventh Circuit: (1) he was deprived of the right to be
present during jury empanelment; (2) he was denied the right
to a fair trial upon the dismissal of Juror No. 8; (3) this
Court erred in finding he lacked standing to suppress
evidence related to a wiretap recording; (4) the evidence was
insufficient to establish a common scheme or plan or
agreement under Count One; (5) this Court erred in denying
his motion to sever; (6) he was prejudiced from the joinder
with co-defendants and the presentation of telephone calls
that did not link him to any co-defendants; (7) this Court
erred in overruling trial counsel’s objection to the
admission of Government Exhibit 35; (8) this Court erred in
denying Bonita’s motion for judgment of acquittal as to
Counts One and Ten; (9) the Court erred in its calculation of
the sentencing guidelines; and (10) the Court erred in
sentencing Bonita to mandatory life imprisonment. See
United States v. Hyppolite, 609 Fed.Appx. 597 (11th Cir.
2015). (See Appellant’s Br., United States
v. Hyppolite, 13-10471 (11th Cir. Nov. 12, 2013)).
25, 2015, the Eleventh Circuit affirmed Petitioner’s
convictions, but remanded the case back to the District Court
for the limited purpose of correcting the written Judgment
because it incorrectly stated Bonita received a thirty-year
sentence as to Count Eleven, when he was convicted under
Count Ten, and the undersigned’s stated intention was
to sentence Bonita to life imprisonment. See
Hyppolite, 609 Fed.Appx. at 613-14. Upon remand, the
Court issued an Amended Judgment to reflect a term of life
imprisonment as to Count One and life imprisonment as to
Count Ten, to run concurrently. (Cr. Docs. #635, #638). All
other provisions remained the same as previously imposed.
(Cr. Docs. #635, #638). Bonita did not petition for a writ of
certiorari with the Supreme Court of the United States.
Bonita seeks relief under 28 U.S.C. § 2255. The
government concedes that Bonita timely filed his § 2255
motion (Cv. Doc. #14, p. 5), and the Court agrees.
Evidentiary Hearing and Appointment of Counsel
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 court need not address both
Strickland prongs if the petitioner fails to satisfy either
of them.” Kokal v. Sec'y, Dep't of
Corr., 623 F.3d 1331, 1344 (11th Cir. 2010) (citations
proper measure of attorney performance is “simply
reasonableness under prevailing professional norms”
considering all the circumstances. Hinton, 571 U.S.
at 273 (internal quotations and citations omitted). “A
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.”
Strickland, 466 U.S. at 689; see also Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (stating courts
must look to the facts at the time of counsel’s
conduct). This judicial scrutiny is highly deferential, and
the Court adheres to a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance. See Strickland,
466 U.S. at 689-90.
objectively unreasonable, the performance must be such that
no competent counsel would have taken the action. See
Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011);
see also Hall v. Thomas, 611 F.3d 1259, 1290 (11th
Cir. 2010). Additionally, an attorney is not ineffective for
failing to raise or preserve a meritless issue. See
United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992); see also Ladd v. Jones, 864 F.2d 108, 109-10
(11th Cir. 1989).
same deficient performance and prejudice standards apply to
appellate counsel. See Smith v. Robbins, 528 U.S.
259, 285-86 (2000); see also Roe, 528 U.S. at
476-77. If the Court finds there has been deficient
performance, it must examine the merits of the claim omitted
on appeal. If the omitted claim would have had a reasonable
probability of success on appeal, then the deficient
performance resulted in prejudice. See Joiner v. United
States, 103 F.3d 961, 963 (11th Cir. 1997). Counsel is
not deficient for failing to raise non-meritorious claims on
direct appeal. See Diaz v. Sec=y for the
Dep=t of Corr., 402 F.3d 1136, 1144-45 (11th
raises a total of seven grounds for relief in his § 2255
motion and supporting documents. Under Ground One, Petitioner
argues counsel rendered ineffective assistance of counsel
during plea discussions and he failed to assert this on
appeal. (Cr. Doc. #682, p. 4; Cv. Doc. #1, p. 4; Cv. Doc.
#17, pp. 2-4). Under Ground Two, Petitioner contends counsel
failed to assert at trial and on appeal that (1) the
government did not file a notice to enhance Bonita’s
sentence under 21 U.S.C. § 851 and, thus, the Court
lacked authority to sentence him to life imprisonment and (2)
the Court exceeded its authority in finding that
Bonita’s charges in State of Florida No. F04-033884
qualified as a prior drug conviction under 21 U.S.C. §
841(b)(1)(A)(iii). (Cr. Docs. #682, p. 5; #689, pp. 2-3; Cv.
Docs. #1, p. 5; #7, pp. 2-3). Under Ground Three, Petitioner
alleges counsel failed to investigate Juror A.D.’s
prior drug conviction and move to strike her as a juror. (Cr.
Docs. #682, pp. 6-7; #689, p. 6; Cv. Docs. #1, pp. 6-7; #7,
p. 6; #17, pp. 5-6). He further asserts counsel should have
raised this error on appeal. Under Ground Four, Bonita
maintains trial counsel failed to move to suppress, object
to, and/or investigate the introduction of Government Trial
Exhibit 35 and failed to assert this argument on direct
appeal. (Cr. Docs. #682, p. 8; #689, p.7; Cv. Docs. #1, p. 8;
#7, p. 7). Under Ground Five, Petitioner claims counsel
failed to object to Government Trial Exhibits 39 and 40 in a
timely manner and appeal this issue. (Cr. Doc. #682, p. 13;
Cv. Docs. #1, p. 13; #7, pp. 7-8). Under Ground Six,
Petitioner asserts appellate counsel failed to appeal the
Court’s failure to provide a jury instruction on
multiple conspiracies. (Cr. Doc. #689, pp. 4-5; Cv. Doc. 7,
pp. 4-5). Finally, under Ground Seven, Petitioner asserts
trial counsel failed to spend adequate time preparing his
case. (Cv. Doc. #18, p. 1). The Court addresses each in turn.
Ground One: Ineffective Assistance of Counsel During Plea
first argues that counsel did not adequately explain the
sentencing guidelines under the original Indictment.
Specifically, Petitioner asserts counsel failed to advise him
that (1) he only faced five to forty years imprisonment under
the first Indictment, (2) he was eligible for sentence
enhancements based upon his prior felony drug convictions,
and (3) he could receive an adjustment of his penalties based
upon his acceptance of responsibility if he pled guilty. (Cv.
Docs. #17, pp. 24; #18). Had counsel properly advised him,
Petitioner asserts he would have not insisted on proceeding
to trial. (Id.). The Court finds Petitioner fails to
set forth a Sixth Amendment claim under Ground One.
standard in Strickland applies to challenges of
guilty pleas, in addition to jury convictions. See Hill
v. Lockhart, 474 U.S. 52 (1985). In Scott v. United
States, 325 Fed.Appx. 822, 824 (11th Cir. 2009), the
Eleventh Circuit set forth the applicable Strickland
standard in the context of challenging a guilty plea:
[T]he first prong of Strickland requires the
defendant to show his plea was not voluntary because he
received advice from counsel that was not within the range of
competence demanded of attorneys in criminal cases. The
second prong focuses on whether counsel’s
constitutionally ineffective performance affected the outcome
of the plea process, meaning the defendant must show a
reasonable probability that, but for counsel’s errors,
he would have entered a different plea.
(internal quotation marks and citations omitted).
maintains it was not until his incarceration and research of
the law that he learned he only “faced an imprisonment
guideline range of 5 to 40 years under the original
indictment.” (Cv. Doc. #17, p. 3). Additionally, he
says counsel failed to inform him that his prior felony drug
convictions could be used to enhance his sentence. (Cv. Doc.
#18). Had he known these facts, he argues he would have
entered a straight plea without the benefit of a plea
agreement. (Cv. Docs. #17, p. 2-4; #18). Petitioner’s
allegations, nonetheless, are contradicted by the record.
Petitioner’s allegations that counsel failed to inform
him of his sentencing consequences under the Indictment, his
colloquy at the arraignment demonstrates otherwise:
THE GOVERNMENT: In Count 1, the defendant is
charged, beginning on an unknown date but at least in or
about July 2010, continuing through and including the date of
the indictment, in Lee and Collier County with having
conspired to manufacture, possess with intent to distribute,
and distribute 28 grams or more of a mixture or substance
containing a detectable amount of cocaine base, also known as
crack cocaine, in violation of the laws of the United States.
Count 1 is punishable by a mandatory minimum five years up to
40 years of incarceration without parole, a fine of up to $2
million, a period of supervised release of at least four
years, up to life, and a 100-dollar special assessment.
Based upon the defendant’s prior felony drug conviction
history, his penalties are eligible for enhancement in Count
1. Those penalties would then be a minimum mandatory ten
years up to life incarceration without parole, a fine of up
to $4 million, a period of supervised release of at least
eight years, up to life, and a 100-dollar special assessment.
In Count 11, the defendant is charged on or about September
27, 2011, in Lee County, with having distributed a quantity
of a mixture or substance containing a detectable amount of
cocaine base, also known as crack cocaine, in violation of
the laws of the United States. That offense is punishable by
up to 20 years of incarceration without parole, a fine of up
to $1 million, a period of supervised release of at least
three years, up to life, and a 100-dollar special assessment.
Based upon the defendant’s prior felony drug conviction
history, he is eligible for enhanced penalties as it relates
to Count 11. Those penalties would then be up to 30 years of
incarceration without parole, a fine of up to $2 million, a
period of supervise release of at ...