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Bonita v. United States

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

September 25, 2019

ERIC BONITA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHH E. STEELE SR. UNITED STATES DISTRICT JUDGE

         Before 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. #1).[1] 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.

         I. Procedural History

         On 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).

         On 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[2] 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).

         The 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. Doc. #258).

         Thereafter, 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. (Id.).

         The 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).

         The 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).

         Bonita filed a Notice of Appeal on January 28, 2013.[3] (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)).

         On June 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.

         Now, 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.

         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 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 omitted).

         The 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.

         To be 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).

         The 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 Cir. 2005).

         III. Analysis

         Petitioner raises a total of seven grounds for relief in his § 2255 motion and supporting documents.[4] 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 Case No. F04-033884 qualified as a prior drug conviction under 21 U.S.C. § 841(b)(1)(A)(iii).[5] (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.

         A. Ground One: Ineffective Assistance of Counsel During Plea Discussions

         Petitioner 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.

         The 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).

         Petitioner 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.

         Despite 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 ...

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