United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. Steele, United States District Judge.
matter comes before the Court on Petitioner Jophaney
Hyppolite's (Petitioner or Hyppolite) pro se
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Cr. Doc.
#671; Cv. Doc. #1) and Memorandum of Law to Support (Cr. Doc.
#672; Cv. Doc. #2) filed on April 21, 2016. The United States
filed a Response in Opposition on May 23, 2016, to which
Petitioner filed a Reply on June 8, 2016. (Cv. Docs. #8; #9).
Petitioner also filed a Sworn Declaration on September 18,
2017. (Cv. Doc. #12-5). For the reasons set forth below,
Petitioner's § 2255 motion is denied.
pending before the Court are Petitioner's Motion to Amend
(Cv. Doc. #10), Motion for Leave to Amend His Original
Pending Motion to Vacate (Cv. Doc. #11), and Third Amendment
to Motion to Vacate (Cv. Doc. #12). Hyppolite's motions
to amend are granted to the extent the Court will consider
these claims as set forth below.
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 Six with knowing and willful
distribution and aiding and abetting the distribution of
cocaine base, also known as crack cocaine, on or about June
29, 2011, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) and 18 U.S.C. § 2. In Count Eleven, Hyppolite
was charged with knowing and willful distribution and aiding
and abetting the distribution of crack cocaine on or about
September 27, 2011 in violation of 21 U.S.C. §
841(a)(1), (b)(1)(C). On September 14, 2012, the government
filed a notice of intent to enhance Hyppolite's sentence
under 21 U.S.C. § 851 because he had at least two
qualifying prior drug convictions. (Cr. Doc. #324).
Court conducted an eleven-day trial. After the
government's case-in-chief, defense counsel moved for
judgment of acquittal on Counts One, Six, and Eleven. (Cr.
Doc. #497, pp. 72-73). The Court granted the motion as to
Count Six only, finding the government's witness did not
identify Hyppolite as a participant in the controlled buy on
June 29, 2011. (Id., pp. 83-84). On October 5, 2012,
the jury returned a verdict finding Hyppolite guilty of
Counts One and Eleven. (Cr. Doc. #383, pp. 1, 7). As to Count
One, the jury found that the amount of cocaine base involved
in the conspiracy was more than 280 grams. (Id., pp.
was sentenced on January 23, 2013. (Cr. Doc. #449). Because
Hyppolite was found guilty of a conspiracy involving more
than 280 grams of cocaine based under 21 U.S.C. §
841(b)(1)(A)(iii) and had three prior felony drug
convictions, he faced a mandatory term of life imprisonment.
The undersigned sentenced Petitioner to a term of life
imprisonment as to Count One, and 30 years of imprisonment as
to Count Eleven, to be served concurrently. (Cr. Doc. #449,
p. 2). In addition, the undersigned imposed a term of
supervised release of ten years as to Count One and six years
as to Count Eleven to run concurrently. (Id., p. 3).
filed a Notice of Appeal on January 27, 2013. (Cr. Doc.
#452). On direct appeal, Hyppolite raised the following six
issues: (1) there was insufficient evidence to support a
conviction for a single conspiracy under Count One; (2) he
was denied due process due to the particular informants who
participated in the government's investigation; (3) the
district court failed to provide a multiple conspiracy jury
instruction and submit a special verdict for finding
individual drug quantity attributable to Hyppolite; (4) the
district court erred in imposing the drug premises
enhancement; (5) the district court erred in imposing the
manager role enhancement; and (6) the government's 21
U.S.C. § 851 notice was defective, misleading, and
unconstitutional. (See Appellant's Br.,
United States v. Hyppolite, 13-10471 (11th Cir. Nov.
25, 2013)). On June 25, 2015, the Eleventh Circuit affirmed
Petitioner's convictions. See United States v.
Hyppolite, 609 Fed.Appx. 597, 612 (11th Cir. 2015).
Hyppolite did not petition for a writ of certiorari with the
Supreme Court of the United States.
Hyppolite seeks relief under 28 U.S.C. § 2255. The
government concedes that he timely filed his § 2255
motion (Cv. Doc. #8, p. 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 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 Cir. 2005).
raises a total of seven grounds for relief.First, Petitioner
argues trial counsel erred in failing to object to the
Court's imposition of two separate sentences for his
offenses when they were grouped together under U.S.S.G.
§ 3D1.2(d) for the purpose of calculating his Sentencing
Guidelines range. (Cr. Docs. #671, p. 4; #672, pp. 3-4; Cv.
Doc. #1, p. 4; #2, pp. 3-4). Second, Petitioner argues (a)
trial and appellate counsel failed to assert that the
district court erred in failing to find the amount of crack
cocaine attributable to him for sentencing purposes and (b)
trial counsel failed to argue the evidence was insufficient
to find the entire amount of crack cocaine involved in the
conspiracy was attributable to him. (Cr. Docs. #671, pp. 5-6;
#672, pp. 4-5; Cv. Docs. #1, pp. 5-6; #2, pp. 4-5; #11).
Third, Hyppolite asserts trial counsel was ineffective in
failing to object to the calculation of his criminal history
points. (Cr. Docs. #671, p. 7; #672, pp.5-6; Cv.
Doc. #1, p. 7; #2, pp. 5-6).
Petitioner claims appellate counsel erred in failing to
assert on appeal that there was insufficient evidence to
convict him under Count Eleven. (Cr. Doc. #671, pp. 8-9;
#672, pp. 6-7; Cv. Doc. #1, pp. 8-9; #2, pp. 6-7). Fifth,
Petitioner contends appellate counsel failed to raise on
appeal that Hyppolite's mere presence in the illegal
activities was insufficient to sustain his conviction for
conspiracy under Count One. (Cr. Doc. #672, pp. 7-8; Cv. Doc.
#2, pp. 7-8). Sixth, Petitioner claims, pursuant to
Mathis v. United States, 136 S.Ct. 2243 (2016), that
his prior conviction under Fla. Stat. § 893.13(1) does
not qualify him as a career offender for purposes of
sentencing, and thus he must be resentenced. (Cv. Doc. #10).
Lastly, he argues trial counsel rendered ineffective
assistance during plea discussions. (Cv. Doc. #12). The Court
addresses each in turn.
Ground One: Failure to Object to Imposition of Separate
first argues defense counsel rendered ineffective assistance
in failing to object to the District Court's imposition
of two separate sentences for his offenses of convictions
when the offenses were grouped under U.S.S.G. § 3D1.2(d)
to calculate his Guidelines range. (Cr. Docs. #671, p. 4;
#672, pp. 3-4; Cv. Doc. #1, p. 4; #2, pp. 3-4). He also
states appellate counsel erred in failing to assert this
argument on appeal. (Cr. Docs. #671, p. 4; #672, pp. 3-4; Cv.
Doc. #1, p. 4; #2, pp. 3-4). The government maintains, in
part, that Petitioner cannot show prejudice because he
confronted a mandatory life sentence under Count One, which
superseded his otherwise-applicable Guidelines range. (Cv.
Doc. #8, pp. 8-10). The Court agrees with the government.
Hyppolite's conspiracy and distribution convictions were
grouped for the purposes of calculating his Sentencing
Guidelines range, the Court imposed separate sentences as to
each conviction. Petitioner says the imposition of two
sentences amounted to procedural error. The Court disagrees.
Indeed, the former Fifth Circuit has admonished judges to
avoid general sentences because it is more desirable to
impose a separate sentence on each count. See United
States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979)
(citation omitted) (“We reiterate, however, that such
general sentences are bad business, leaving all, including
this Court, in a state of uncertainty as to just what has
been done. All the defendant, probation officers, this Court,
and prison/parole authorities should be informed of the
specific sentence on each ...