Bonita v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ERIC BONITA,

Petitioner,

v. Case No: 2:16-cv-729-FtM-29NPM

Case No. 2:11-CR-97-FTM-29CM

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

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.

1 The Court will refer to the underlying criminal docket, 2:11-cr-

00097-JES-CM-10, as “Cr. Doc.,” and will refer to the civil docket

as “Cv. Doc.”

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 others2 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

2 The government removed three of the nine initial co-conspirators

in the Superseding Indictment.

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

3 Bonita later amended his Notice of Appeal on February 4, 2013 to

correct a clerical mistake. (Cr. Doc. #456).

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

F. App’x 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 F. App’x 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. Secy for the Dept 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

4 For clarity, the Court has re-numbered Bonita’s grounds for

relief.

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,

5 The government argues that Bonita’s claims under Ground Two are

procedurally barred because he failed to assert them on direct

appeal. (Cv. Doc. #14, pp. 6-7). The Court disagrees because

claims of ineffective assistance of counsel are not subject to

procedural default. See Massaro v. United States, 538 U.S. 500,

504 (2003). The Court, therefore, will address the merits of

Bonita’s claims under Ground Two.

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 F. App’x 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 least six years, up to life, and a 100-

dollar special assessment.

THE COURT: All right; thank you. Mr. Bonita,

did you understand the two charges against you

in the indictment?

THE DEFENDANT: Yes, yes, Your Honor.

THE COURT: Okay. And did you understand what

he was saying about the possible or maximum

penalties, should you be convicted?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Mr. Lakeman, is there any

reason, then, why he should not enter a plea?

MR. LAKEMAN: Your Honor, I would, at this

time, enter a plea of not guilty to Count 1

and Count 11.

(Cr. Doc. #727, pp. 8-10).

Considering the testimony above, the Court finds Bonita’s

claims under Ground One to be refuted by the record. The record

shows that Bonita knew (a) of his potential penalties and (b) that

his prior convictions could be used to enhance his sentence.

Bonita has failed to suggest how his statements at his arraignment

hearing were false.

Moreover, Petitioner’s assertion that he only faced five to

forty years imprisonment under the original Indictment is false.

At his arraignment, the government advised that Petitioner was

eligible for enhanced penalties under 21 U.S.C. § 851 based upon

his prior felony drug convictions. (Id., pp. 9-10). This means

that Bonita knew he would be subject to an enhanced penalty of a

minimum ten years up to life incarceration, without parole, as to

Count One and thirty years of incarceration as to Count Eleven

under the Indictment. (Id.).

Petitioner asserts he could have avoided a mandatory minimum

sentence of life imprisonment by entering a straight-up plea to

the first Indictment. Petitioner, however, could not prevent the

government from filing its § 851 notice, as it did three times in

this case. The Court finds no deficient performance by counsel.

Even if defense counsel’s performance was deficient,

Petitioner fails to demonstrate prejudice because the record

refutes his assertion that he would have pled guilty without a

plea agreement. First, Bonita says in his § 2255 motion that, had

he known of his possible penalties at sentencing, he “would have

considered taking a plea instead of standing trial.” (Cv. Doc.

#1, p. 4) (emphasis added). Then, in his Reply, he inconsistently

states he “would have taken a plea, had defense counsel went over

the sentencing guidelines on the original indictment[.]” (Cv.

Doc. #17, p. 2). In any case, Petitioner’s “after the fact

testimony concerning his desire to plead, without more, is

insufficient to establish that but for counsel's alleged advice or

inaction, he would have accepted the plea offer.” Diaz v. United

States, 930 F.2d 832, 835 (11th Cir. 1991) (rejecting defendant’s

claim that he would have accepted a plea agreement when he had not

indicated any desire to plead guilty prior to his conviction).

Additionally, at his sentencing hearing, Bonita still

professed his innocence:

Your Honor, with all due respect to you, of

course, and the rest of the courtroom, the

reason why I took it to trial was because I

felt like I was not . . . like guilty of no

conspiracy. That's the only reason why I came

this far, Your Honor. I didn't mean to waste

your time, or cause you any hard work. With

all due respect, Your Honor, but that's the

only reason why I came this far, is there was

a lot of allegations that are false that was

said, and that's the reason why I came this

far, Your Honor.

(Cr. Doc. #502, p. 54).

In sum, the Court finds Petitioner’s claim that counsel

rendered ineffective assistance during plea discussions to be

refuted by the record and otherwise without merit. Counsel on

appeal was, therefore, not ineffective for failing to raise a

meritless claim. Ground One is denied.

B. Ground Two: Challenges to Petitioner’s Sentence

Enhancement Under 21 U.S.C. § 851

Under Ground Two, Petitioner raises two challenges to his

sentence enhancement under 21 U.S.C. § 851. First, Petitioner

alleges he was not eligible for a sentence enhancement under 21

U.S.C. § 851 because the government failed to file a notice under

the statute. (Cr. Doc. #682, p. 5; Cv. Doc. #1, p. 5). Second,

he claims counsel erred in failing to assert on appeal that the

Court exceeded its authority in sentencing Bonita under the

statute. (Cr. Doc. #689, pp. 2-3; Cv. Doc. 7, pp. 2-3). The Court

finds both challenges fail.

Petitioner maintains the government failed to file a notice

of intent to enhance his sentence and, therefore, he was not

eligible for a sentence enhancement under 21 U.S.C. § 851. (Cr.

Doc. #682, p. 5; Cv. Doc. #1, p. 5). In support, Petitioner

provides a copy of a letter from the Clerk’s office, dated August

24, 2016, which states, in relevant part: “Dear Mr. Bonita: After

review of your docket, it does not look as if an ‘851 Enhancement

Notice’ was filed on your behalf, therefore I cannot give you a

page count.” (Cr. Doc. #682-1; Cv. Doc. #1-1). The government

argues Petitioner’s claim fails because the record shows the

government filed a 21 U.S.C. § 851 notice prior to trial under the

Second Superseding Indictment and the Clerk’s letter does not show

otherwise. (Cv. Doc. #14, pp. 11-12).

Title 21 U.S.C. § 851(a)(1) provides in pertinent part:

No person who stands convicted of an offense

under this part shall be sentenced to

increased punishment by reason of one or more

prior convictions, unless before trial, or

before entry of a plea of guilty, the United

States attorney files an information with the

court (and serves a copy of such information

on the person or counsel for the person)

stating in writing the previous convictions to

be relied upon.

As an initial matter, the Clerk’s office letter does not

support Petitioner’s claim. (Cr. Doc. #682-1; Cv. Doc. #1-1).

According to the letter, an § 851 notice was not filed on behalf

of Petitioner. (Id.). This, as the government argues, is correct

given that the notice was filed by the government and not on behalf

of Bonita. (Cv. Doc. #14, pp. 11-12).

Importantly, the record shows the government filed an § 851

notice prior to the start of trial in this case. (Cr. Doc. #323).

The government certified that the notice was sent via electronic

mail to defense counsel. (Id., p. 4). Finally, the Eleventh

Circuit has already found on direct appeal that the government

timely notified Bonita of its intention to seek enhanced penalties

under 21 U.S.C. § 851. See Hyppolite, 609. F. App’x at 615 n.15.

The Court finds the government complied with the notice

requirements under § 851 and, as a result, Bonita’s first challenge

under Ground Two has no merit.

Petitioner also claims that counsel erred in failing to assert

on direct appeal that the Court exceeded its authority in

sentencing Bonita to life imprisonment. (Cv. Doc. #7, pp. 2-3).

Specifically, Petitioner alleges the Court’s reliance upon State

of Florida Case No. F04-033884 to enhance his sentence was improper

because Bonita was not convicted in that case. (Id.). The

government asserts Petitioner’s claim fails because he had at least

two qualifying controlled substance offenses at the time of his

sentencing and, therefore, he qualified for a sentence enhancement

pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). (Cv. Doc. #14, pp. 19-

20).

Before trial, the government notified Bonita that he was

eligible for a sentence enhancement under 21 U.S.C. §

841(b)(1)(A)(iii) because he had the following convictions for

felony drug offenses:

•

(A) Unlawful Possession of a Controlled

Substance, in violation of Florida Statute,

Section 893.13(6)(A), a crime punishable by

imprisonment for a term exceeding one year,

in the Circuit Court, Eleventh Judicial

Circuit, in and for Miami-Dade County,

Florida, in Case No. F08-005065, on or about

June 10, 2008;

•

(B) Unlawful Possession of a Controlled

Substance with Intent to Sell, Manufacture,

or Deliver Cocaine, in violation of Florida

Statute 893.13(1)(a)1, a crime punishable

by imprisonment for a term exceeding one

year, in the Circuit Court, Eleventh

Judicial Circuit, in and for Miami-Dade

County, Florida, in Case No. F04-033884, on

or about January 6, 2005;

•

(C) Unlawful Possession of a Controlled

Substance with Intent to Sell, Manufacture,

or Deliver Cannabis, in violation of

Florida Statute, Section 893.13(1)(A)2, a

crime punishable by imprisonment for a term

exceeding one year, in the Circuit Court,

Eleventh Judicial Circuit, in and for

Miami-Dade County, Florida, in Case No.

F04-033884, on or about January 6, 2005;

•

(D) Unlawful Possession of a Controlled

Substance (Cocaine), in violation of

Florida Statute, Section 893.13(6)(a), a

crime punishable by imprisonment for a term

exceeding one year, in the Circuit Court,

Eleventh Judicial Circuit, in and for

Miami-Dade County, Florida, in Case No.

F04-033885, on or about January 6, 2005;

•

(E) Unlawful Possession of a Controlled

Substance with Intent to Sell, Manufacture,

or Deliver Cocaine, in violation of Florida

Statute, Section 893.13(1)(A)1, a crime

punishable by imprisonment for a term

exceeding one year, in the Circuit Court,

Eleventh Judicial Circuit, in and for

Miami-Dade County, Florida, in Case No.

F06-006444, on or about November 16, 2006.

(Cr Doc. #323, p. 2). At sentencing, the government maintained

offenses B, C, and D were concurrent offenses and thus counted as

one conviction, in addition to Bonita’s A and E convictions. Thus,

the government argued Bonita had at least three prior felony drug

convictions. Bonita, through counsel, alleged his offenses in

Florida State Case No. F04-033884 did not constitute a prior

conviction under § 841(b) because adjudication had been withheld.

The Court disagreed with this argument, and continues to do so.

Title 21 U.S.C. § 841 (b)(1)(A)(iii) provides in relevant

part:

[i]n the case of a violation of subsection (a)

of this section involving— 280 grams or more

of a mixture or substance . . . which contains

cocaine base . . . If any person commits a

violation of this subparagraph . . . after two

or more prior convictions for a felony drug

offense have become final, such person shall

be sentenced to a mandatory term of life

imprisonment without release[.]

(emphasis added). Petitioner asserts he was not eligible for a

sentence enhancement under 21 U.S.C. § 841(b)(1)(A)(iii) because

in Florida Case No. F04-033884 he pled guilty and an adjudication

of guilt was withheld. (Cr. Doc. #689, pp. 2-3; Cv. Doc. #7, pp.

2-3). For the reasons below, Bonita’s second challenge under

Ground Two lacks merit.

First, a guilty plea followed by an adjudication withheld

qualifies as a prior conviction for sentencing enhancement

purposes under § 841. See United States v. Mejias, 47 F.3d 401,

403-404 (11th Cir. 1995) (holding prior state court no contest

plea with adjudication withheld was a “conviction” supporting an

enhanced sentence under 21 U.S.C. § 841(b)(1)(B)); United States

v. Fernandez, 58 F.3d 593, 599-600 (11th Cir. 1995) (same).

Second, even if convictions B, C, and D do not constitute

prior convictions, Petitioner cannot show prejudice because he has

been convicted of at least two other felony drug offenses (A and

E), which satisfies the requirements under 21 U.S.C. § 841

(b)(1)(A)(iii). (Cv. Doc. #14, pp. 19-20). As the government

points out, Bonita does not suggest that these two drug offenses

did not qualify as prior felony drug convictions under 21 U.S.C.

§ 841(b)(1)(A)(iii). Because Petitioner’s second challenge is

baseless, the Court finds no ineffective assistance by counsel at

trial or on appeal. Ground Two is denied.

C. Ground Three: Failure to Strike and/or Investigate Juror

During Voir Dire

Under Ground Three, Petitioner alleges counsel erred in

failing to strike/investigate Juror A.D. because she admitted she

had a prior drug conviction and, therefore, there was a

“possibility” she was disqualified from jury service pursuant to

28 U.S.C. § 1865(b)(5). (Cv. Doc. #1, p. 6; Cv. Doc. #17, pp. 5-

6). He further states such an error denied him of his due process

right to be tried by a fair and impartial jury and, as a result,

he is entitled to a new trial. (Cv. Doc. #1, p. 6).

During voir dire, the Court asked the jury panel to provide

biographical information. When the individual panel members were

asked if they had prior court experience, Juror A.D. stated, “[t]he

only court experience that I have is, when I was 20, I was convicted

of a minor in possession.” (Cr. Doc. #489, pp. 13-14). Petitioner

contends Juror A.D. was ineligible to serve as a trial juror

because she had been convicted of the possession of narcotics and,

therefore, counsel’s failure to strike her from the panel violated

his due process. (Cv. Doc. #7, p. 6). The Court disagrees.

The Sixth and Fourteenth Amendments guarantee a criminal

defendant the right to an impartial and unbiased jury. See Morgan

v. Illinois, 504 U.S. 719, 727 (1992). Under 28 U.S.C. §

1865(b)(5), an individual is not qualified to serve as a juror at

trial if he “has a charge pending against him for the commission

of, or has been convicted in a State or Federal court of record

of, a crime punishable by imprisonment for more than one year and

his civil rights have not been restored.” Nonetheless, unlike

what Bonita asserts, there is no constitutional right to a felon-

free jury. See Hanna v. Ishee, 694 F.3d 596, 616 (6th Cir. 2012)

(“[T]he Sixth Amendment ‘does not require an absolute bar on felon

jurors,’ because a juror’s felon status is not necessarily

indicative of a bias against the defendant (or, for that matter,

against the prosecution)”) (citation omitted); United States v.

Boney, 977 F.2d 624, 633 (D.C. Cir. 1992) (holding that because

convicted felons are not necessarily biased, a verdict is not

invalidated simply because a convicted felon was on the jury); see

also Zeno v. LeBlanc, No. 17-6234, 2018 WL 2163800, *12-14 (E.D.

La. Feb. 1, 2018) (finding the mere presence of convicted felon on

a jury and petitioner’s failure to show any juror bias did not

support a due process claim).

Under federal law, “once the trial is complete, a felon

serving as a juror is not an automatic basis for a new trial. The

defendant must demonstrate that the juror was actually biased or

fundamentally incompetent.” United States v. Bishop, 264 F.3d

535, 555 (5th Cir. 2001) (citation omitted); see also Rogers v.

McMullen, 673 F.2d 1185, 1190 (11th Cir. 1992) (“[A] petitioner is

entitled to habeas relief only upon a showing that the juror was

actually biased or incompetent.”). In rejecting claims like

Bonita’s, other district courts have recognized, “a juror

disqualification defect is not fundamental as affecting the

substantial rights of the accused and the verdict is not void for

want of power to render it.” Zeno, 2018 WL 2163800 at *13 (quoting

Hogue v. Scott, 874 F. Supp. 1486, 1529 (N.D. Tex. 1994) (internal

quotation marks omitted); see also Green v. Clark, No. 2:13-cv-

523, 2014 WL 11511669, *3-4 (E.D. Va. Oct. 29, 2014) (stating court

did not deny petitioner his Sixth Amendment right to an impartial

jury when a juror failed to disclose that he was a convicted felon

but no bias was shown).

Bonita has failed to show deficient performance by trial or

appellate counsel for two reasons. First, as the government

asserts, the record neither supports Bonita’s conclusion that

Juror A.D. was in fact convicted of a felony, nor that her civil

rights had not yet been restored at the time of trial. See 28

U.S.C. § 1865(b)(5). And, even Bonita concedes that there was

only “a possibility” that Juror A.D. was disqualified under the

statute. (Cv. Doc. #17, pp. 5-6).

Second, Petitioner has failed to show that Juror A.D. was

actually biased or incompetent. Bonita simply alleges that Juror

A.D.’s presence on the jury panel violated his due process right.

Nonetheless, the proper analysis for the Court is whether Juror

A.D. was actually biased and incompetent, which is not established

even if she may have been disqualified under 28 U.S.C. §

1865(b)(5). Petitioner has offered nothing to show Juror A.D. was

biased against him or unable to render a verdict impartially.

Indeed, as the government points out, Juror A.D. indicated on two

separate occasions that she could be fair and impartial if selected

as a juror. (Cv. Doc. #14, p. 13; Cr. Doc. #489, pp. 40, 42).

Even if defense counsel erred in failing to investigate Juror

A.D.’s criminal status, Bonita fails to offer any evidence to show

he was prejudiced by the juror’s presence on his jury. At best,

Bonita asserts he “could well have been prejudiced by the selection

of” Juror A.D. (Cv. Doc. 17, pp. 5-6). This is insufficient to

establish prejudice. There is no evidence to support a conclusion

that the jury was tainted by Juror A.D.’s presence on the panel.

Because Petitioner has failed to establish a claim of ineffective

assistance of trial or appellate counsel, Ground Three is denied.

D. Ground Four: Failure to Move to Suppress, Object to,

and/or Investigate Government’s Trial Exhibit 35

Under Ground Four, Bonita asserts defense counsel erred in

failing to move to exclude, object to, and/or investigate a

recording and accompanying transcript of a controlled buy between

confidential informant, Beth Ann Torta (“Torta”), and Bonita on

September 27, 2011 (Government Trial Exhibit 35). (Cr. Docs. #682,

p. 8; #689, p. 5; Cv. Docs. #1, p. 8; #7, p. 5). Bonita claims

(a) it was not his voice on the recording, (b) the audio was

unintelligible, and (c) counsel should have paid for an expert

voice analyst. (Cr. Docs. #682, p. 8; #689, p. 5; Cv. Docs. #1,

p. 8; #7, p. 5). Had counsel moved to exclude this evidence,

Bonita asserts he would not have been convicted of distribution of

crack cocaine under Count Ten. (Cr. Docs. #682, p. 8; #689, p. 5;

Cv. Docs. #1, p. 8; #7, p. 5). For the following reasons, the

Court finds no ineffective assistance of counsel under Ground Four.

First, the Court finds there was proper and adequate voice

identification of Bonita’s voice on the tape. Federal Rule of

Evidence 901(b)(5) allows the admission of opinion testimony based

upon a witness’s familiarity with a voice. “Once a witness

establishes familiarity with an identified voice, it is up to the

jury to determine the weight to place on the witness’s voice

identification.” Brown v. City of Hialeah, 30 F.3d 1433, 1437

(11th Cir. 1994) (citation omitted). At trial, Torta testified

that she conducted a controlled buy of crack cocaine from Bonita

on September 27, 2011. (Cr. Doc. #495, pp. 137-152). The

government sought to introduce a recording and transcript of the

transaction. (Id., pp. 139-152). Torta identified one of the

speakers on the audio as “Black[,]” who she identified in the

courtroom as Bonita. (Id., pp. 137-152). Torta was familiar with

Bonita’s voice because she testified she purchased crack cocaine

from him “[q]uite a few times.” (Id., pp. 132-133). This

identification was sufficient to sustain the introduction of the

tape and transcript at trial, and it was up to the jury to determine

the credibility of Torta’s testimony.

On direct appeal, Bonita argued the Court erred in admitting

Government Trial Exhibit 35 into evidence because the government

failed to lay a proper foundation for the exhibit. (See

Appellant’s Br., United States v. Hyppolite, 13-10471 (11th Cir.

Nov. 12, 2013)). The Eleventh Circuit disagreed, holding this

Court “did not plainly err or abuse [its] discretion in admitting

Exhibit 35 into evidence, because the government established the

proper foundation for its admittance[.]” Hyppolite, 609 F. App’x

at 615 n.4. It is well settled that a “district court is not

required to reconsider claims of error that were raised and

disposed of on direct appeal.” United States v. Nyhuis, 211 F.3d

1340, 1343 (11th Cir. 2000) (citation omitted). “[O]nce a matter

has been decided adversely to a defendant on direct appeal it

cannot be re-litigated in a collateral attack under section 2255.”

Id. In light of the above, Bonita is barred from re-litigating

whether the government laid a proper foundation for Exhibit 35 in

this habeas proceeding. A successful claim of ineffective

assistance of counsel cannot be premised on an issue already

resolved by the Court of Appeals.

Next, Petitioner’s challenge of the recording on the ground

of unintelligibility fails. “[T]ape recordings that are partially

inaudible and/or unintelligible are not inadmissible unless these

portions are so substantial as to render the recording as a whole

untrustworthy, a determination that is left to the sound discretion

of the trial judge.” United States v. Mendoza, 574 F.2d 1373,

1378 (5th Cir. 1978) (citation omitted). A review of the record

shows that some of the recording was inaudible or unintelligible.

However, these portions are not “so substantial as to render the

recording as a whole untrustworthy[,]” considering that a good

portion of the tape was audible and intelligible. Therefore,

because there was an adequate identification of Bonita’s voice and

the tape was not so unintelligible as to render it untrustworthy,

the Court finds no deficient performance by counsel.

The Court also finds counsel did not render ineffective

assistance for failing to investigate the recording or pay for an

expert voice analyst. The Eleventh Circuit in Chandler held:

counsel need not always investigate before

pursuing or not pursuing a line of defense.

Investigation (even a nonexhaustive

preliminary investigation) is not required for

counsel reasonably to decline to investigate

a line of defense thoroughly. For example,

counsel’s reliance on particular lines of

defense to the exclusion of others – whether

or not he investigated those other defenses –

is a matter of strategy and is not ineffective

unless the petitioner can prove the chosen

course, in itself, was unreasonable.

Chandler v. United States, 218 F.3d 1305, 1318 (11th Cir. 2010)

(internal citation and quotation marks omitted). “Thus, where

trial counsel determines that further investigation is

unnecessary, he cannot be ineffective for failing to pursue the

same.” Marshall v. United States, No. 4:06-CR-26-CDL, 2012 WL

629243, at *2 (M.D. Ga. Feb. 27, 2012), report and recommendation

adopted, No. 4:06-CR-26 CDL, 2012 WL 5335275 (M.D. Ga. Oct. 26,

2012).

Bonita assumes that had his counsel investigated the audio

tape and/or paid for an expert voice analyst, he would have been

acquitted of Count Ten. This assumption, however, is insufficient

to establish an ineffective assistance of counsel claim. See

Marshall, 2012 WL 629243 at *2 (finding no ineffective assistance

where petitioner merely assumed that had his counsel investigated

the recordings or hired an expert voice analyst, he would have

been acquitted). Defense counsel was not ineffective in failing

to investigate a line of defense that Bonita merely speculates

could have changed the outcome at trial. See id.

Finally, the Court finds Petitioner fails to show any

prejudice. First, the recording was not the only evidence to

support Bonita’s conviction under Count Ten. Rather, Torta

testified independently of the recording that she conducted a

controlled buy of crack cocaine from Bonita on September 27, 2011.

(Id.). Therefore, given the existence or other evidence against

Bonita, he cannot demonstrate that the failure to object to, move

to exclude, and/or investigate the recording and present expert

voice identification testimony prejudiced his defense. Although

the recording was clearly important to the government’s case, this

was not an instance where a determination of guilt rested solely

on this recording. To the contrary, even if Bonita’s voice was

not on the tape, there was independent witness testimony to support

his conviction under Count Ten.

Moreover, Bonita cannot show prejudice because the Court

sentenced him to a concurrent term of life imprisonment as to

Counts One and Ten. Consequently, Petitioner cannot show a

reasonable probability that his sentence would have been more

favorable had he been acquitted of Count Ten.

In conclusion, considering all the above, the Court finds

Petitioner fails to set forth a claim for ineffective assistance

of trial or appellate counsel under Ground Four.

E. Ground Five: Failure to Assert a Timely Objection to

Government Trial Exhibits 39 and 40

Under Ground Five, Bonita argues defense counsel erred in

failing to object in a timely manner to the admission of Government

Exhibits 39 and 40 at trial. (Cr. Doc. #682, p. 13; Cv. Docs. #1,

p. 13; #17, pp. 7-8). Had counsel moved to exclude these exhibits

at the time they were offered into evidence, he argues he would

not have been convicted of Count One. (Cr. Doc. #682, p. 13; Cv.

Docs. #1, p. 13; #17, pp. 7-8). The government argues Ground Five

lacks merit because (a) counsel’s action was reasonable given that

his client was not implicated by the government’s witness and (b)

Bonita fails to show he suffered any prejudice. (Cv. Doc. #14,

pp. 15-16). The Court agrees with the government.

In support of Bonita’s distribution charge under Count

Twelve, the government sought to introduce evidence showing that

Torta conducted a controlled buy from Bonita (identifying him as

“Black”) on October 13, 2011. (Cr. Doc. #495, pp. 181-195).

Specifically, the government sought to admit an audio tape of the

transaction (Exhibit 39) and the crack cocaine recovered from law

enforcement (Exhibit 40). (Cr. Docs. #495, pp. 181-195; #496, p.

192). Torta, however, testified that Bonita was not the “Black”

she purchased crack cocaine from on October 13, 2011. (Cr. Doc.

#494, pp. 181-195). The government argued the exhibits remained

relevant to the conspiracy charge as a whole under Count One. (Cr.

Doc. #496, p. 198). Defense counsel did not object on the basis

that the exhibits were nonetheless prejudicial to his client. (Cr.

Doc. #495, pp. 183-184; #496, pp. 198-199). The Court admitted

both exhibits into evidence. (Cr. Doc. #495, pp. 183-184; #496,

pp. 198-199).

Thereafter, Bonita, through counsel, moved for judgment of

acquittal as to Count Twelve. (Cr. Doc. #497, pp. 73-77). The

Court dismissed Count Twelve without objection from the

government. (Id., p. 85). The next day, defense counsel moved to

exclude Government Exhibits 39 and 40 since Count Twelve had

already been dismissed. (Cr. Doc. #498, pp. 5-6). The Court

overruled the objection, accepting the government’s argument that

these exhibits were admissible as to Count One. (Id., p. 6). The

Court further opined that it did not find any reason to change its

ruling that the exhibits were admissible as to the conspiracy

charge. (Id.). Bonita now says counsel’s failure to object at

the time the exhibits were introduced constituted ineffective

assistance of counsel and prejudiced him as to Count One. (Cr.

Doc. #682, p. 13; Cv. Docs. #1, p. 13; #17, pp. 7-8).

The Court finds defense counsel did not render deficient

performance. First, as the government points out, counsel’s

decision not to object to the introduction of the exhibits at the

time they were offered was consistent with Torta’s testimony Bonita

did not participate in the controlled buy transaction on October

13, 2011. (Cv. Doc. #14, p. 16). Because Bonita was clearly not

implicated by the evidence, defense counsel’s decision not to

object was reasonable.

Second, Petitioner does not argue that the evidence was

inadmissible. At most, he says counsel failed to make a timely

objection. Nonetheless, “[t]he failure to object to admissible

evidence does not constitute ineffective assistance of counsel.”

Lovett v. State of Fla., 627 F.2d 706, 709 (5th Cir. 1980)6

(citation omitted). Bonita has not demonstrated that the Court’s

judgment concerning the admissibility of Government Exhibits 39

and 40 was incorrect. Thus, his claim based upon counsel’s failure

to object to the exhibits at the time they were introduced into

evidence is rejected. See id. (finding no ineffective assistance

claim where petitioner failed to demonstrate that the trial court

6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc) the Eleventh Circuit adopted as binding precedent

all the decisions of the former Fifth Circuit handed down prior to

the close of business on September 30, 1981.

improperly admitted evidence); see also United States v. Durden,

No. 107CR00020JOFJFK1, 2011 WL 13300366, at *6 n.7 (N.D. Ga. June

29, 2011) (holding no ineffective assistance of counsel claim based

on counsel’s failure to object to evidence where petitioner failed

to argue the evidence was inadmissible).

In addition, Bonita fails to demonstrate a reasonable

probability, but for counsel’s failure to make a timely objection

to Government Exhibits 39 and 40, he would have been acquitted of

Count One. Considering Torta testified Bonita did not participate

in the controlled buy on October 13, 2011 and Government Exhibits

39 and 40 did not otherwise implicate him but helped him, the Court

finds he did not suffer prejudice. The Court finds no ineffective

assistance by trial or appellate counsel. Ground Five is,

therefore, denied.

F. Ground Six: Failure to Appeal the Court’s Jury

Instructions

Under Ground Six, Bonita maintains counsel failed to assert

on appeal that the Court erred in refusing to give a jury

instruction on multiple conspiracies and, as a result, improperly

denied his defense theory of the case. (Cv. Doc. #7, p. 3). The

government argues Petitioner’s claim is without merit because the

Court did instruct the jury on multiple (separate) conspiracies.

(Cv. Doc. #14, p. 17). The Court agrees with the government. At

the conclusion of the case, the undersigned provided the following

instruction to the jury:

THE COURT: Proof of several conspiracies is

not proof of the single overall conspiracy

charged in the second superseding indictment

unless one of the several conspiracies proved

is the single overall conspiracy. You must

decide whether the single overall conspiracy

charged existed between two or more

conspirators. If not, then you find the

defendants not guilty of that charge.

But if you decide that a single overall

conspiracy did exist, then you must decide who

the conspirators were; and if you decide that

a particular defendant was a member of some

other conspiracy, not the one charged, then

you must find that defendant not guilty. So,

to find a defendant guilty, you must all agree

that the defendant was a member of the

conspiracy charged, not a member of some other

separate conspiracy.

(Cr. Doc. #498, p. 179). Additionally, on direct appeal, the

Eleventh Circuit specifically found the undersigned “did not fail

to instruct the jury on multiple conspiracies[.]” Hyppolite, 609

F. App’x at 615 n. 4. For these reasons, Petitioner fails to

establish a claim under Strickland. (Cr. Docs. #378, pp. 13-14;

#498, p. 179). Consequently, Ground Six is denied.

G. Ground Seven: Failure to Prepare Case

Last, Bonita argues in his Sworn Affidavit that “little time

was spent on the preparation” of his case by defense counsel. (Cv.

Doc. #18, p. 1). Petitioner’s conclusory allegation of ineffective

assistance of counsel under Ground Seven is insufficient to warrant

relief. Petitioner fails to allege, much less establish with

evidentiary support, what a proper investigation into the

circumstances of his case would have revealed, and how the outcome

of his case would have changed if counsel had spent more time

preparing his defense. Petitioner further fails to allege what

counsel did or did not do that demonstrated an unwillingness to

prepare Bonita’s case, and the record establishes that counsel’s

performance was not deficient. Ground Seven is, therefore, denied.

Accordingly, it is now

ORDERED:

1. Petitioner Eric Bonita’s Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody (Cr. Doc. #682; Cv. Doc. #1) is DENIED.

2. Petitioner’s requests for an evidentiary hearing and the

appointment of counsel (Cv. Doc. #17, p. 9) are DENIED.

3. 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.

A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN

FORMA PAUPERIS ARE DENIED. 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); Harbison v. Bell,

556 U.S. 180, 183 (2009). “A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(¢c)(B)(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), or that “the issues presented were adequate to deserve

encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003) (citations omitted). 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.

DONE and ORDERED in Fort Myers, Florida this 25th day of

September, 2019.

[) p 4 LEC

E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

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All Parties of Record