JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #327)
On March 5, 2014, a federal grand jury in Fort Myers, Florida returned a five-count Indictment (Cr. Doc. #3), and on May 14, 2014, the grand jury returned a nine-count Superseding Indictment (Cr. Doc. #31) against petitioner Lorenzo D. Hood (petitioner or Hood) and four other persons. Petitioner was charged in five counts of the Superseding Indictment: (1) conspiracy to possess with intent to distribute and distribution of cocaine, crack cocaine, and heroin (Count One); (2) possession with intent to distribute and distribution of cocaine (Count Five); (3) possession with intent to distribute 500 grams or more of cocaine and a detectable amount of heroin (Count Six); (4) possession with intent to distribute cocaine (Count Eight); and (5) being a felon in possession of one or more firearms and ammunition (Count Nine).
On August 25, 2014, defense counsel filed a Motion for Pre-Trial Suppression Hearing (Cr. Doc. #103). After an evidentiary hearing and a Report and Recommendation (Cr. Doc. #126) by the magistrate judge, the district court issued an Opinion and Order (Cr. Doc. #132) on December 10, 2014, overruling petitioner's objections, fully adopting the Report and Recommendation, and denying the motion to suppress.
On March 20, 2015, a jury found petitioner guilty on all counts. (Cr. Doc. #192.) On September 15, 2015, the Court sentenced petitioner to 235 months imprisonment as to Counts 1, 5, 6, and 8, and 120 months imprisonment as to Count 9, to be served concurrently, followed by a term of supervised release. (Cr. Doc. #263.) Judgment (Cr. Doc. #266) was filed on the same day. On April 12, 2017, the Eleventh Circuit affirmed petitioner's convictions and sentence.
Petitioner's current motion is undated, but was filed on May 17, 2018. Since a petitioner "gets the benefit of up to 90 days between the entry of judgment on direct appeal and the expiration of the certiorari period,"
Petitioner identifies fourteen claims for relief. Petitioner argues that trial counsel provided ineffective assistance by failing to: (1) notify the government that he was willing to plead guilty; (2) file a motion to dismiss Count One of the Superseding Indictment based on the statute of limitations; (3) impeach Detective Tice with his prior suppression hearing testimony; (4) object to Detective Petaccio's lay opinion testimony as to identification; (5) object to the aiding and abetting theory and the corresponding jury instruction; (6) argue that under the Sentencing Guidelines an individualized finding had to be made as to the actual drug amount attributable to petitioner; (7) object to the two-level enhancement for possession of a firearm under the Sentencing Guidelines; (8) object under the Sentencing Guidelines to the lack of evidence as to the purity of the cocaine charged in Count Eight; and (9) object to the petitioner's criminal history calculation under the Sentencing Guidelines.
Petitioner also argues that appellate counsel was ineffective by failing to: (1) appeal the enhancement under the Sentencing Guidelines for being a manager or supervisor; (2) brief the issue of the insufficiency of evidence to convict petitioner of possession of a firearm; (3) properly brief the insufficiency of the evidence to convict petitioner under an overall conspiracy in Count One; and (4) file a timely petition for rehearing and rehearing en banc. Petitioner's final argument is that he is entitled to a new trial based on the government's due process violation for destroying certain drugs after testing.
A district court shall hold an evidentiary hearing on a habeas 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."
Viewing the facts alleged in the light most favorable to petitioner, the Court finds that the record establishes that petitioner is not entitled to relief as to any of his claims. Therefore, an evidentiary hearing is not required.
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.
The proper measure of attorney performance is simply reasonableness under prevailing professional norms considering all the circumstances.
The same deficient performance and prejudice standards apply to appellate counsel.
Petitioner's attorney told petitioner that the government wanted him to cooperate and would not make a plea offer which did not include cooperation. Petitioner asserts that he wanted his attorney to negotiate a plea agreement, but states he was adamant about not cooperating. Petitioner asserts that his attorney never conveyed this information to the government during plea negotiations. Petitioner therefore proceeded to trial and was convicted on all counts. Petitioner argues that there is a reasonable probability a non-cooperation guilty plea would have been accepted by both the government and the Court, he would have received a three-level reduction for acceptance of responsibility, and his sentence would have been lower. Petitioner asserts, therefore, that he received ineffective assistance of counsel during the plea negotiation process.
A defendant in a criminal case is entitled to effective assistance of counsel during plea negotiations.
(Cv. Doc. #7, p. 8.) The record establishes the government's consistent refusal to make a plea agreement without cooperation. The only guilty plea in the case, by defendant Walter J. Campbell, who was not called as a government witness, was to all counts against him without the benefit of a plea agreement. (Cr. Doc. #168.)
It is clear that under the circumstances of this case there was not going to be a plea offer from the government without a cooperation requirement, and petitioner concedes he would not have accepted any offer that required cooperation. There was no ineffective assistance of counsel in the plea negotiations or prejudice to petitioner, just an inability of the parties to agree on the terms of a plea agreement. The motion is denied as to this claim.
Petitioner argues that his counsel should have filed a motion to dismiss Count One of the Superseding Indictment based on the five-year statute of limitations. Petitioner argues that if counsel had properly reviewed the discovery material, he would have known to file such a motion. Additionally, petitioner points to the following portion of the government's closing arguments as proof that the conspiracy took place in 2004:
(Cr. Doc. #280, p. 13.) Petitioner argues that the conspiracy with the "unnamed person" took place on or about 2004, but was not a continuing offense, and as such it did not extend the statute of limitations.
The Superseding Indictment was returned on May 14, 2014. In Count One of the Superseding Indictment (Cr. Doc. #31), the grand jury charged a conspiracy "[f]rom in or about 2004, to in or about the fall of 2013" in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(C), and § 846. A person may not be prosecuted or tried "unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." 18 U.S.C. § 3282(a). Thus, the conspiracy charge in this case is timely if the conspiracy continued to May 14, 2009, five years before the Superseding Indictment was filed.
In a § 846 conspiracy
The jury was instructed on multiple conspiracies (Cr. Doc. #280, pp. 75-77), and by its verdict found petitioner guilty of a single conspiracy (Cr. Doc. #192). The evidence clearly supported the jury's finding of a single conspiracy which existed well into the statute of limitations period, as is evident from the summary of the facts in
The record establishes that there was no factual basis for a motion to dismiss based on the statute of limitations. Therefore, counsel was not deficient by failing to file a motion that had no merit, and there was no prejudice to petitioner. The motion is denied as to this claim.
Petitioner argues that defense counsel allowed Detective Tice to testify at trial without impeaching him with his prior inconsistent suppression hearing testimony. This, petitioner asserts, constituted ineffective assistance of counsel.
On October 29, 2013, Detective Tice took part in the execution of a search warrant on the residence at 1606 Hibiscus Avenue
(Cr. Doc. #300, p. 25.) At trial on October 8, 2015, Detective Tice again testified regarding the Pop-Tart box depicted in a photograph:
(Cr. Doc. #276, p. 34.) Ronald Ralls, evidence manager of the Lee County Sheriff's Department testified that he sent evidence seized from 1606 Hibiscus Avenue to the FDLE for processing, including the cocaine from the Pop-Tart box. (
Petitioner argues that counsel should have impeached Tice with his prior inconsistent testimony. The government responds that such impeachment would not have been "sound trial strategy" in light of laboratory results that confirmed the presence of cocaine.
Counsel was not deficient for failing to confront Detective Tice with his suppression hearing testimony. It is not clear that there was a material inconsistency in the testimony, since Detective Tice simply testified to what he believed was the situation as of the date of the suppression hearing. To identify the alleged inconsistency would have emphasized the fact that the substance was indeed cocaine, not just a cutting agent as Detective Tice originally believed. Petitioner concedes the FDLE report identified the substance as cocaine. (Cv. Doc. #8, p. 8.) Further, in light of the overwhelming evidence, there is no prejudice from the failure to elicit such minimal impeachment. Petitioner has failed to establish any deficient performance or prejudice, and the claim is denied.
Petitioner argues that counsel should have objected to Detective Candice Petaccio's lay opinion that petitioner was one of the persons depicted in surveillance videos introduced by the government. Petitioner argues that the opinion was not based on first-hand observation or a familiarity with petitioner, and therefore was inadmissible under Rule 701, Federal Rules of Evidence. Petitioner argues the court would have sustained an objection if one had been made, and therefore counsel provided ineffective assistance by failing to object.
A video surveillance system was installed at 6226 Demery Circle, one of the houses from which defendants sold drugs. When a search warrant was executed on the premises on September 9, 2013, officers seized two weeks' worth of video surveillance tapes which showed, among other things, various defendants selling drugs. (Cr. Doc. #279, pp. 36-37.) Detective Petaccio was the co-case agent (
Under Rule 701, lay witness testimony in form of an opinion is limited to one that is "rationally based on the witness's perception." Fed. R. Evid. 701. "Opinions by lay witnesses must be derived from personal knowledge or experience."
Detective Petaccio testified she had over eight years' experience investigating drug dealers, with four years as a member of the DEA Task Force. (Cr. Doc. #279, pp. 30-31.) In this case, Detective Petaccio was the co-case agent on the lengthy investigation, and she reviewed hundreds of hours of surveillance videos covering a two week period. Agent Petaccio testified as to the content of the exhibits and demonstrated a certainty as to the identification of each of the defendants, including petitioner. The identification was based on her observation and familiarity with the case, defendants, and the testimony discussed criminal activity seen on the surveillance. The jury was provided an instruction as to factors to consider when evaluating identification testimony. (Cr. Doc. #188, p. 8.)
The failure to object to Detective Petaccio's identification was not deficient performance, and an objection would not have been sustained. Because there was no ineffective assistance of counsel, the motion is denied.
Petitioner argues that the Superseding Indictment did not place him on notice of the government's aiding and abetting theory because there was no allegation he aided and abetted other members of the conspiracy. Petitioner argues that counsel therefore should have objected to the government presenting the aiding and abetting theory to the jury and the corresponding jury instruction. Finally, Petitioner argues there is no evidence the grand jury returned the Indictment based on the "element" of aiding and abetting.
There was no aiding and abetting theory argued by the government as to the conspiracy count. The substantive drug charges against petitioner in the Superseding Indictment were Counts Five, Six, and Eight, all of which referenced an aiding and abetting theory by citing 18 U.S.C. § 2. (Cr. Doc. #31, pp. 3-5.)
Petitioner argues that his base offense level under the Sentencing Guidelines was improperly calculated because he should have only been held responsible for the amount of drugs attributable to him, not the entire amount of drugs in the conspiracy. Petitioner asserts his attorney should have objected to this error, and had he done so the sentence would have been lower.
Petitioner, and each defendant, had a separate Verdict Form.
The Presentence Report (PSR) (Cr. Doc. #225) calculated the base offense level for petitioner under USSG § 2D1.1. (
(Cr. Doc. #225, ¶64) (emphasis omitted). Based upon these amounts of cocaine, heroin, and crack cocaine, the PSR determined petitioner's Base Offense Level was 26. (Cr. Doc. #264, ¶ 74.) Counsel did not have any factual objections to the presentence report because "[m]ost of it is taken directly from the trial." (Cr. Doc. #296, p. 5.) The Court adopted this calculation.
The Eleventh Circuit has recently summarized the process for calculation an amount of drugs attributable to a defendant:
Petitioner argues that counsel should have objected to the two-level enhancement for possession of a firearm during a drug trafficking offense. This would have required the government to prove by a preponderance of the evidence that the firearm found in the closet of the Lehigh Acres residence was related to the drug trafficking crime. Petitioner asserts there was no evidence to support such an enhancement, resulting in a reasonable probability that the Court would have sustained an objection. (Cv. Doc. #2, p. 14.)
The PSR reflects that petitioner was in possession of drugs, firearms, ammunition and drug paraphernalia at 1606 Hibiscus Drive in Lehigh Acres when a search warrant was executed. (Cr. Doc. #264, ¶ 75.) The PSR applied a two level increase for possession of a dangerous weapon under U.S. Sentencing Guidelines Manual § 2D1.1(b)((1). (
To justify this sentencing enhancement, "[t]he government bears the initial burden of showing, by a preponderance of the evidence, that a firearm was `present' at the site of the charged conduct or that the defendant possessed it during conduct associated with the offense of conviction."
The Eleventh Circuit has held that "proximity between guns and drugs, without more, is sufficient to meet the government's initial burden under § 2D1.1(b)(1)."
Petitioner's driver's license lists the Hibiscus Drive address as his primary residence. (Cr. Doc. #264, ¶ 53.) On October 29, 2013, the United States Marshal's Office breached the front door and apprehended petitioner as he walked from the south master bedroom. (
After these items were observed in plain view, a search warrant was obtained and the following items were seized:
(
Considering that both a quantity of cocaine and weapons were found in the same home, there was no reasonable objection that counsel could have made against the two-level increase for possession of a dangerous weapon. The evidence clearly established that the government satisfied its burden, and that there was a very likely connection between the weapons and the offense. Counsel was not deficient for failing to argue against this two level increase since any such argument would be meritless. The motion is denied on this issue.
Section 4A1.1 of the Sentencing Guidelines sets forth the number of criminal history points to assign to certain prior convictions based on a variety of factors, including the length of imprisonment imposed. U.S. Sentencing Guidelines Manual § 4A1.1. The relevant portion provides:
U.S. Sentencing Guidelines Manual § 4A1.1.
Petitioner raises two claims in connection with the calculation of his criminal history points. Petitioner argues that he should not have been assigned three criminal history points for each of three sets of convictions (PSR ¶¶ 95, 99, 100) since they had been consolidated for sentencing and he was sentenced to concurrent terms of imprisonment. Additionally, petitioner argues he should not have been assigned two points as to each conviction in paragraphs 101 and 103 of the PSR because the length of the actual sentences did not qualify for the points. Because counsel did not object, petitioner asserts he received ineffective assistance.
In three of his prior cases, Petitioner was arrested on separate dates for offenses committed on separate dates, but was ultimately sentenced to concurrent terms of imprisonment at a single sentencing proceeding. Specifically, petitioner received three criminal history points for each of the following three sets of convictions:
Petitioner argues that because these three cases were consolidated for sentencing and concurrent sentences were imposed, they should not have been separately scored and his attorney should have objected at sentencing.
The Court is to "[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month." U.S. Sentencing Guidelines Manual § 4A1.1(a). A "prior sentence" is "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." U.S.S.G. 4A1.2(a)(1). "If the defendant has multiple prior sentences, [the Court must] determine whether those sentences are counted separately or treated as a single sentence." U.S. Sentencing Guidelines Manual § 4A1.2(a)(2). The following rules apply:
U.S. Sentencing Guidelines Manual § 4A1.2(a)(2). "An intervening arrest is one that comes in between the commission of the first criminal act and the second."
As set forth above, the PSR established that defendant was arrest for the first set of offenses prior to committing the second set of offenses, which was prior to his commission of the third set of offenses. Therefore, all three sets of convictions are counted separately. The fact that the sentences were imposed concurrently on the same day does not change this result.
Petitioner asserts that he received ineffective assistance of counsel when his attorney failed to object to the scoring on two of his other prior convictions.
Petitioner asserts that his attorney was ineffective by failing to object to the two points for each conviction because he did not receive a sentence of more than one year and one month imprisonment.
Under § 4A1.1(b), two points are added for each prior sentence of imprisonment of at least 60 days but not more than one year and one month. U.S. Sentencing Guidelines Manual § 4A1.1(b). Both of these convictions qualify, and there was no basis for defense counsel to object to this aspect of the criminal history scoring. This portion of the claim is denied.
Petitioner argues that his attorney provided ineffective assistance by failing to object to the purity of the substance in Count Eight. Petitioner asserts that the Court improperly included the weight of the cutting agent in determining the amount of cocaine involved in Count Eight, and an objection would have resulted in a lower sentence.
In Count Eight, petitioner was charged with possession with intent to distribute a quantity of a mixture or substance containing a detectable amount of cocaine on or about October 29, 2013. Petitioner was arrested at the Hibiscus Avenue address where a quantity of suspected cocaine was found in the master bedroom. (Cr. Doc. #277, p. 194.) A Senior Crime Laboratory Analyst with the Florida Department of Law Enforcement testified the net weight of the cocaine was 131.98 grams, plus or minus 0.24 grams. (Cr. Doc. #277, pp. 193-97.) It is undisputed that the FDLE lab report for the cocaine charged in Count Eight did not distinguish the number of grams of cocaine from the number of grams of cutting agent, but simply combined the weight. The substance was thereafter destroyed. According to the PSR, the drug counts (Counts One, Five, Six, Eight, and Nine) were grouped under Sentencing Guidelines, and the base offense level was calculated based upon 1.8 kilograms of cocaine and less quantities of heroin and crack cocaine. (
Petitioner argues that the Court had an obligation to determine the sentence based on the "marketable" amount of cocaine, which could not be done as to Count Eight because cutting agents cannot be included in the calculation of the amount of cocaine. Petitioner asserts that the failure of his attorney to object on this basis constituted ineffective assistance of counsel.
Section 2D1.1(c) of the United States Sentencing Guidelines sets out base offense levels keyed to drug quantities. It uses the same "mixture or substance" language from 21 U.S.C. § 841(b), setting a defendant's base offense level based on "the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U.S. Sentencing Guidelines Manual § 2D1.1(c) cmt. n.1.
The law in the Eleventh Circuit is clear that an unusable component of a substance is not included in the weight, but a cutting agent is included in the weight of the substance.
Additionally, any error as to the amount of cocaine in Count Eight was harmless since the inclusion of the amount did not affect the Sentencing Guidelines calculation of the base offense level.
Petitioner argues that appellate counsel erred by failing to argue that the district court erred in finding that he was a manager or supervisor, an issue preserved in the district court. Petitioner argues that the government failed to establish his role by a preponderance of evidence since it was based on the testimony of a jailhouse informant and two confidential informants, which was not sufficient to show he was a manager or supervisor.
At sentencing, counsel successfully argued against petitioner being enhanced as a leader or organizer. The Court stated:
(Cr. Doc. #296, p. 36.)
The Court's adjustment for role is a factual finding that would have been reviewed on direct appeal for clear error.
Count Nine charged that on or about October 29, 2013, petitioner, having been convicted of more than nine prior felony offenses, knowingly possessed one or more firearms and ammunition in and affecting interstate commerce. (Cr. Doc. #31.) Count Nine identified three shotguns, three rifles, and forty-two rounds of various brands of ammunition.
Petitioner asserts that the government must prove that he actually knowingly possessed the firearm alleged in Count Nine. Petitioner argues that seizing the firearm or ammunition from the closet of a bedroom does not prove he actually possessed the firearm, and therefore the government failed to establish the necessary elements beyond a reasonable doubt. Petitioner argues that appellate counsel was obligated to raise this issue. (Cv. Doc. #2, p. 20.)
Defendant need not physically possess the firearm in order to be found guilty. The jury was instructed as follows with regard to possession:
(Cr. Doc. #188, p. 17.) Petitioner's listed address on his driver's license was the 1606 Hibiscus address where the items were seized, and his motorcycle was parked near the front door of the house. (Cr. Doc. #307, p. 10.) There were clearly sufficient facts showing petitioner's association with the premises and its contents. When reviewing for sufficiency of the evidence, an appellate court views the evidence in the light most favorable to the government, with all inferences and credibility choices made in the government's favor.
Petitioner argues that appellate counsel should have argued against the finding of an overall conspiracy in Count One, but instead counsel made an unsuccessful argument that was vague and broad. Petitioner argues that what the government alleged and proved were multiple conspiracies, and not a single conspiracy.
The jury was provided the following instruction with regard to finding a single overall conspiracy:
(Cr. Doc. #188, pp. 13-14.) The Eleventh Circuit has addressed the issue of a variance between an indictment and the proof at trial:
Clear and substantial evidence supports the finding of a single conspiracy. With the help of Jason Nixon, who was purchasing drugs, the Fort Myers Police Department carried out an investigation. Nixon went to a house on Utana Avenue to buy drugs from petitioner, and also went to 6226 Demery to make controlled buys from co-defendant James Hood several times, and petitioner was in the kitchen during a June 26, 2013 transaction. On August 8, 2013, Nixon purchased cocaine directly from petitioner. It was a search at the Demery address that led officers to the house at 1606 Hibiscus Avenue. (Cr. Doc. #307, pp. 3-6.)
As officers maintained surveillance on the Demery address, Nicholas Herman was observed making purchases and after he was charged with possession of cocaine and heroin, Mr. Herman became a confidential informant. Herman made a series of controlled purchases from petitioner's brother and co-defendant James Hood, and later identified co-defendant Morris for some of the purchases. (
The jury's finding of a single conspiracy was clearly supported by substantial evidence linking the controlled buys with the properties and defendants. Appellate counsel did not provide deficient performance by failing to raise this issue on direct appeal. The motion denied on this ground.
Petitioner argues that the officers who breached the 1606 Hibiscus address had no reason to believe additional individuals were inside after suspects were arrested, and the firearm should have been suppressed. Petitioner argues that appellate counsel had a duty to file a petition for rehearing and rehearing en banc because the facts in his case were closer to
Appellate counsel did raise the legal argument on direct appeal. The Eleventh Circuit found no error and agreed with the district court that the officers did not exceed their authority during the protective sweep:
(Cr. Doc. #307, p. 36.)
A petition for rehearing by the appellate panel "must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition." Fed. R. App. P. 40(a)(2). A petitioner for rehearing or an en banc hearing is the exception rather than the rule. "An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance." Fed. R. App. P. 35(a). There was no basis for appellate counsel to believe that rehearing or an en banc hearing was appropriate, and no obligation to file such a petition.
Petitioner's right to effective assistance of counsel does not extend to motions for rehearing after denial of a direct appeal.
Petitioner argues that he is entitled to a new trial because the government acted in bad faith when it destroyed evidence and prevented petitioner from challenging the FDLE's lab report. Petitioner argues there was no reason placed on the record for destroying the evidence months before trial.
The evidence, including the cocaine, was destroyed approximately 6 months before the commencement of trial. (Cr. Doc. #276, pp. 111, 112.) The seized items found at 1606 Hibiscus Avenue were taken into evidence and placed in storage, including the cocaine. (
Unless there is proof that "the destroyed evidence was exculpatory or that the evidence was destroyed in bad faith",
Evidence was presented at trial by way of pictures of what was found, as well as through forensic experts as to the nature of the substance, i.e., cocaine. Mere speculation that it must be bad faith is insufficient because petitioner has not shown that evidence or his own expert would have found evidence that it was not cocaine. The motion is denied.
Accordingly, it is hereby
1. Petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #327) is
2. The Clerk of the Court shall enter judgment accordingly and close the civil file. The Clerk is further directed to place a copy of the civil Judgment in the criminal file.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
