JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. #1), and the Government's Response (Dkt. #3). Having reviewed the pleadings, the record, and the relevant case law, the Court concludes that the petition should be denied.
On August 19, 2010, a federal grand jury returned a three count indictment charging Basillio Alvardo ("Alvardo") as follows:
The charges arose from a traffic stop that occurred in Sarasota County, Florida, on June 15, 2010. A sheriff's deputy conducted a routine traffic stop of Alvardo for a suspected window tint violation. Based on Alvardo's suspicious demeanor, a drug detection canine was brought to the location. The canine alerted to drugs in the vehicle. Deputies searched the vehicle and found a loaded Rossi .38 caliber revolver under the center console of the driver's side, forty-three rounds of Winchester .38 caliber ammunition, two cellular telephones, razors, a scale inside a pouch on the floorboard in the rear of the vehicle, and methamphetamine under the center console on the passenger side. A DEA laboratory report determined that the mixture of methamphetamine had a weight of 232 grams, was 91.3% pure, and had a weight of actual methamphetamine of 211.8 grams.
After Miranda warnings, Alvardo admitted to deputies that he possessed the firearm and methamphetamine that was found in his vehicle. Alvardo stated that he had distributed a larger quantity of methamphetamine in the Wauchula area, specifically thirty pounds, and that he was involved in the smuggling of methamphetamine from Mexico into the United States. Alvardo told deputies that he placed his firearm within reach to protect himself from individuals who might wish to rob him.
Alvardo was convicted on all counts by a jury. He was sentenced to 420 months imprisonment, 360 months on Counts One and Three (bottom of the guidelines), and 60 months consecutive on Count Two (mandatory minimum). Alvardo filed a direct appeal, but abandoned his arguments as to the suppression issue. His appeal went forward on whether or not his sentence was reasonable. The Eleventh Circuit affirmed the judgment and sentence on February 23, 2012.
Alvardo timely filed his petition to vacate on February 1, 2013, raising the following grounds:
The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims:
Strickland, 466 U.S. at 687.
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690.
Petitioner must demonstrate that counsel's error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To meet this burden, Petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
In support of Ground One, Alvardo states:
Petition, Dkt. #1, pp. 15-16.
Alvardo confuses "potential punishment" with his "actual punishment." He argues that he was sentenced to less than one year for the aggravated battery charge. See Par. 46, PSR. But the guideline is based on the potential statutory sentence for the offense.
Sentencing guideline 4B1.1(a) provides:
The definition for a crime of violence offense is found in guideline 4B1.2(a), which states:
(Emphasis supplied).
Alvardo does not contest that the crimes in question met the requirements set forth in 4.B1.2(a)(1). Rather, he contests the beginning phrase of 4.B1.2 requiring that a "crime of violence" be an offense "punishable by imprisonment for a term exceeding one year. . . ." Alvardo's prior qualifying offenses were punishable by imprisonment for terms exceeding one year.
Alvardo's prior qualifying offenses were identified in paragraph 30 of the pre-sentence report as:
Alvardo objected to the reference to a deadly weapon and the Court sustained his objection. But his offenses still qualify as predicate offenses. Florida's aggravated battery statute is set forth in Florida Statute 784.045, which provides that it is a felony of the second degree punishable as provided in Section 775.082. Florida's aggravated assault statute is Section 784.021 which defines it as a felony of the third degree, punishable as provided in Section 775.082. Florida Statute 775.082 provides that a felony of the second degree is punishable by a term of imprisonment not exceeding fifteen years, and a felony of the third degree is punishable by a term of imprisonment not exceeding five years. Therefore, both prior offenses are "punishable by imprisonment for a term exceeding one year," and meet the requirement of Federal Sentencing Guideline Section 4B1.2(a).
Had Alvardo's counsel challenged the underlying predicate offenses as qualifiers for his classification as a career offender, that challenge would have been meritless.
In Ground Two, Alvardo contends that the indictment was defective because it misstated the statute numbers for Counts Two and Three. He points out that, while Count One was properly designated, Counts Two and Three were designated as offenses under 21 U.S.C. § 922(g) and 21 U.S.C. § 924(c) and (e). Counts Two and Three should have correctly designated those offenses as 18 U.S.C. § 922(g) and 18 U.S.C. §§ 924(c) and (e). But technical errors in an indictment do not render it insufficient.
Federal Rule of Criminal Procedure 7(c)(1) requires an indictment to be "a plain, concise, and definite written statement of the essential facts constituting the offense charged. . . ." An indictment's sufficiency is determined by practical, not technical, considerations. Jackson v. United States, 313 F.2d 572 (C.A.D.C. 1962). These practical considerations include a requirement that an indictment contain the elements of the offense intended to be charged so that it apprises an accused of the nature of the offense. And the record of the case must be sufficient so that the accused can plead the judgment as a bar to any subsequent prosecution for the same offense. Collins v. Markley, 346 F.2d 230 (7th Cir. 1965).
Here, Alvardo challenges only technicalities — the designated statute numbers for the offenses charged. He does not contend that the elements of the offenses were not set forth factually, or that he was unable to understand the offenses for which he was charged. Any challenge of the indictment on the basis of this technicality would have failed and, therefore, his counsel cannot be faulted for not making a meritless challenge.
This Ground fails for lack of merit.
In Ground Three, Alvardo appears to be making a racial challenge to his traffic stop. He asserts:
Petition (Dkt. #1), p. 10.
First, Alvardo fails to set forth any facts to support his conclusory allegations. Conclusory statements are insufficient to support a claim for habeas relief.
Second, claims challenging the propriety of the search of his vehicle should have been raised at the motion to suppress hearing and on appeal. Fourth Amendment arguments are not cognizable for habeas relief. Stone v. Powell, 428 U.S. 465, 494 (1976) (holding that Fourth Amendment claims generally are not cognizable on habeas corpus review). Alvardo's attempt to avoid the strictures of Stone v. Powell by recasting his arguments as a race based claim is to no avail. Without supporting facts, this claim is mere conjecture.
This claim fails for lack of merit.
Since all claims in the petition lack merit, it must be denied. It is therefore
ORDERED AND ADJUDGED that:
1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Dkt. #1) is DENIED.
2. The Clerk is to enter judgment for Respondent, United States of America, terminate any pending motions, and close this case.
3. The Clerk is directed to terminate from pending status the motion to vacate found at Dkt.#87, in the underlying criminal case, case number 8:10-cr-348-T-30TGW.
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (CERTIFICATE OF APPEALABILITY). Id. "A [CERTIFICATE OF APPEALABILITY] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
