# Bonita v. United States

> District Court, M.D. Florida · September 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10103737

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10103737

## How later opinions describe it (automated extraction)

- holding that because convicted felons are not necessarily biased, a verdict is not invalidated simply because a convicted felon was on the jury
- stating there is no Sixth Amendment right to counsel in post-conviction collateral proceedings
- stating courts must look to the facts at the time of counsel’s conduct
- 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

## Opinion text

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
Copies:
All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103737. Public record. Not legal advice.