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Hyppolite v. United States

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

September 30, 2019

JOPHANEY HYPPOLITE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          John E. Steele, United States District Judge.

         This 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)[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.

         Also 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.

         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 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).

         The 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. 2-3).

         Hyppolite 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).

         Petitioner 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.

         Now, 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.

         I. 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).

         II. Analysis

         Petitioner raises a total of seven grounds for relief.[2]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.[3] (Cr. Docs. #671, p. 7; #672, pp.5-6; Cv. Doc. #1, p. 7; #2, pp. 5-6).

         Fourth, 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.

         A. Ground One: Failure to Object to Imposition of Separate Sentences

         Petitioner 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.

         Although 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 ...


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