Caicedo-Avila v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JERRY MOISES CAICEDO-AVILA,

Petitioner,

vs. Civil Case No. 8:18-CV-2671-T-27AAS

Crim. Case No. 8:17-CR-286-T-27AAS

UNITED STATES OF AMERICA,

Respondent.

oo

ORDER

BEFORE THE COURT is Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence (cv Dkt. 1), the United States’ opposition (cv Dkt. 6), and Petitioner’s

Reply (cv Dkt. 11). Upon consideration, Petitioner’s § 2255 motionis DENIED. _

Petitioner pleaded guilty to conspiracy to distribute and possess with intent to distribute

cocaine while on board a vessel subject to the jurisdiction of the United States (Count One) and

possession with intent to distribute cocaine while on board a vessel subject to the jurisdiction of the

United States (Count Two). He was sentenced to concurrent 120 month terms, followed by 5 year

concurrent terms of supervised release (cr Dkt. 92). He did not appeal.

In his § 2255 motion, Petitioner raises two claims of ineffective assistance of counsel:

Ground One: “Defense counsel’s deficient performance at sentencing resulted in

both a longer than necessary punishment and the findings of facts, the estoppel effect

of which has continuing detriment to Mr. Caicedo-Avila.”

Ground Two: “The Constitution requires the defense counsel advise the defendant

of the benefit and detriment of all material consequences of direct appeal. An

attorney’s failure to inform the defendant of all material consequences of not

appealing amounts to constitutionally inadequate performance.”

(cv Dkt. 1).

Standard for Ineffective Assistance of Counsel Claims

A petitioner making a claim of ineffective assistance of counsel must prove: (1) deficient

performance by counsel; and (2) prejudice resulting therefrom. Strickland v. Washington, 466 U.S.

668, 687 (1984). For the first prong, it must be determined whether counsel’s representation “fell

below an objective standard of reasonableness.” Jd. at 468. Judicial scrutiny of counsel’s

performance is highly deferential and counsel’s conduct is entitled to a strong presumption that it

fell within the range of reasonable professional assistance. Weeks v. Jones, 26 F.3d 1030 (11th Cir.

1994). Even if counsel’s performance was deficient in some respect, a petitioner is not entitled to

relief unless the second prong is satisfied. United States v. Hilliard, 752 F.2d 578 (11th Cir. 1985).

Under the second prong, a petitioner must establish that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694. In other words, the petitioner must establish that he was prejudiced by

counsel’s deficient performance. Jd. Both components of the Strickland standard need not be

addressed if an insufficient showing is made on either. Weeks, 26 F.3d at 1037.

GROUND ONE:

In Ground One, Petitioner contends that counsel was ineffective in failing to object to the

court’s calculation of the quantity of cocaine on board his vessel, specifically counsel’s failure to

object to the court’s reliance on “the parties’ factual stipulation” and the court’s failure “to ensure

any stipulation is reliable.” (cv Dkt. 1 at 13). He claims that an objection would have resulted in a

lower quantity attributable to him, arguing that “90%” of the quantity for which he was held

accountable was “objectively unreasonable” and that he would not have been subjected to a

minimum mandatory term. (Id.). He also contends that counsel should have objected to the court not

applying USSG Amendment 790. (Id.). Petitioner’s contentions are without merit.

□

First, he was safety-valve eligible, and therefore could have been sentenced without regard to

the statutory minimum mandatory penalty, regardless of whether counsel had objected to drug

quantity. (cr Dkt. 79, Presentence Investigation Report (“PSR”) § 22)); USSG § 5C1.2(a). Second,

he was sentenced in November 2017, and the 2016 Guidelines Manual applied, which incorporated

Amendment 790. USSG § 1B1.11; (PSR { 19). Finally, any objection to drug quantity would have

been meritless, based on Petitioner’s post-Miranda admissions. Failing to make a meritless objection

does not constitute deficient performance. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir.

2015).

During sentencing, Petitioner was entitled to effective assistance of counsel. Wilson v. United

States, 962 F.2d 996 (11th Cir. 1992).' As in Wilson, “the record before the court [is] sufficient to

determine that [Petitioner] was not denied effective assistance of counsel.” Jd. First, his guilty plea

necessarily admitted that he committed the offenses he was pleading to. Second, he admitted in his

post-Miranda statements that he was hired to transport drugs from Ecuador to Guatemala and was

the load guard. Third, he told law enforcement there were 27 bales on board the go-fast vessel. In

his Presentence Investigation Report, the quantity of cocaine for which he was held accountable was

explained:

During his post-Miranda statement, Caicedo-Avila stated that he was offered 60

million Colombian pesos to transport a load of drugs from Ecuador to Guatemala.

Caicedo-Avila stated that he was hired to guard the drugs and help with the fuel and

food onboard the GFV. Caicedo-Avila stated that he accepted the job and received

five million Colombian pesos as an advanced payment. Caicedo-Avila reported that

there were 27 packages of unknown drugs on board their GFV. He further advised

that when they saw that CGC WAESCHE, Mero-Sornoza gave the order to jettison

the drugs and electronics.

(PSR § 13).

'On behalf of Petitioner, counsel made a thoughtful and comprehensive mitigation argument, summarizing

Petitioner’s background and characteristics, his difficult upbringing, limited education, impoverished state, his small

child and family who depended on him, his motivation for participating in the offense, and the sentence received by

Calderon-Alay. (cr Dkt. 101 at 5-7). His request for a variance was granted. Petitioner, in allocution, apologized “for

having committed this crime,” explaining that he “did it out of necessity.” (Id. at 7).

According to Petitioner, there were 27 bales of cocaine on board. (PSR § 15 (“based on

Caicedo-Avila’s report of 27 bales of cocaine onboard the GFV”)). The bales jettisoned from the

boat, “based on the case agent’s training and experience,” were “consistent with bales of cocaine

typically transported on GFV’s in the Eastern Pacific ocean,” and amounted to 540 kilograms. (Id.).

And the factual basis supporting his guilty plea provided that the jettisoned bales “appeared to be

the dimensions of a standard bale containing twenty (20) kilograms of cocaine.” (cv Dkt. 6 at 1-2)

(quoting (cr Dkt. 47 at 3)).

Petitioner never questioned the factual basis underlying his guilty plea. Indeed, during

sentencing, in support of his request for a variance, counsel alluded to Petitioner’s “truthfulness”

with respect to reporting the quantity of cocaine on board the boat:

The load amount in this case, with the Government being able to determine that

amount, is attributed to my client and his truthfulness to them of that higher amount

which he was charged with and which the others are charged with, because he was,

quite frankly, just truthful about 27 bales and how many kilos were in those bales,

and I think it turned out to be 540 kilograms.

(cr Dkt. 101 at 7). And during his change of plea, Petitioner admitted to having “participated in a

smuggling venture involving possession with intent to distribute 5 or more kilograms of cocaine.”

(cr Dkt. 99 at 21).* Finally, the court explained its rationale for its sentence:

I am mindful that a co-defendant, Mr. Calderon-Alay, was sentenced to 120 months,

and based on the Government's response to my question, I don't see any significant

distinction between this defendant and Mr. Calderon-Alay in terms of culpability. I

find in this case, as I have in many, many other cases involving mariners interdicted

on the high seas, that a term of imprisonment commensurate with the statutory

minimum mandatory is an appropriate sentence and which is fair and which supports

the statutory purposes of sentencing.

(ct Dkt. 101 at 9-10).

? Accordingly, his contention that he did not know what was in the bales is foreclosed by his guilty plea. /d.

In sum, Petitioner himself provided the information from which the quantity of cocaine was

calculated. Since the bales were jettisoned, the case agent could only estimate the quantity of cocaine

in the 27 bales, based on his experience and training. The material facts, therefore, were undisputed.

There was nothing for counsel to investigate beyond his client’s statements.

Like in Wilson, the problem with Petitioner’s claim “is that he has not suggested any factual

basis upon which counsel could have relied” in objecting to the quantity of cocaine. 962 F.2d at 998.

His conclusory allegation of ineffective assistance is therefore insufficient. He does not show that

counsel’s performance was deficient, other than his own bald assertion that counsel was ineffective.

Nor does he show that if an objection had been made, there is a reasonable probability that his

sentence would have been different. Ground One is therefore due to be dismissed as without merit.

New Claim Raised in Reply

In his Reply, Petitioner attempts to add new claims that counsel failed to investigate the drug

quantity and should have “advised his client on what to admit (only that which he knew personally).”

(cv Dkt. 11 at 5). These claims will not be considered since they were raised for the first time in his

Reply. See Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n. 11 (11th

Cir. 2009) (“Because they raised this argument for the first time in their reply brief, we treat this

argument as waived.”’); United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006); United States

v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004) (“As for reply briefs, this Court follows this same rule

and repeatedly has refused to consider issues raised for the first time in an appellant’s reply brief.”).

Moreover, his attempt to raise these new claims is not authorized by the rules. Rule 2(b)(1)

of the Rule Governing Section 2255 Proceedings requires that his motion “specify all the grounds

for relief available.” And his motion may not be amended as a matter of course by including a new

claim in his Reply. See Fed. R. Civ. P. 15(a) (party permitted to amend pleading once “as a matter

of course” at any time before a responsive pleading is served or, otherwise, only by leave of court

5 □

or by written consent of the adverse party); Rule 12 of the Rules Governing Section 2255

Proceedings (Federal Rules of Civil Procedure not inconsistent with the Rules Governing Section

2255 Proceedings may be applied).? Even if the claims are considered, they are without merit.

_ By pleading guilty, Petitioner waived all non-jurisdictional claims, including claims of pre-

plea ineffective assistance which do not relate to the knowing and voluntary nature of his guilty plea.

Wilson v. United States, supra. Since these claims are not about his decision to plead guilty, he

waived his contentions that counsel did not conduct an adequate investigation and was deficient in

his advice on what to admit.

GROUND Two:

In Ground Two, Petitioner contends that his attorney failed to advise him “of the benefit and

detriment of direct appeal.” (cv Dkt. 1). After careful consideration, and a review of the record, this

contention is without merit.

A lawyer who fails to comply with instructions from the client to appeal acts in a

professionally unreasonable manner, and prejudice is presumed. Gomez-Diaz v. United States, 433

F.3d 788, 790 (11th Cir. 2005) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)). But this

case is not about counsel’s failure to appeal after being instructed to. This case is about whether

counsel had a constitutional obligation to consult about an appeal, and if so, whether he satisfied

that obligation.

No constitutional duty to consult about an appeal

The threshold question is whether Petitioner’s attorney was constitutionally obligated to

consult with him about an appeal. “A criminal defense lawyer is not under a per se constitutional

3 This Court is mindful of its responsibility to address and resolve all claims raised in Petitioner’s motion. Clisby

v. Jones, 960 F.2d 925, 936 (11th Cir. 1992). That said, nothing in Clisby requires or suggests consideration of a claim

raised for the first time in a reply.

obligation to consult with his or her client about an appeal.” Otero v. United States, 499 F.3d 1267,

1270 (11th Cir. 2007) (citing Flores-Ortega, 528 U.S. at 479). Indeed, there is no “bright- line” rule

that counsel must always consult with their client regarding an appeal, and Strickland “rejects

mechanistic rules governing what counsel must do.” Flores-Ortega, 528 U.S. at 479. As the Court

reasoned, even if counsel does not consult with the client about an appeal, “[w]e cannot say, as a

constitutional matter, that in every case counsel’s failure to consult with the defendant about an

appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent

with both our decision in Strickland and common sense.” Jd. (citations omitted) (emphasis in

original).*

A constitutional duty to consult with the client about an appeal arises “when there is reason

to think either (1) that a rational defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing.” Jd. at 480. See also Palacios v. United States, 453 F.

App’x 887, 889 (11th Cir. 2011).

First, Petitioner does not contend that he instructed his attorney to appeal or even expressed

an interest in appealing. And, as noted, by pleading guilty, Petitioner waived any non-jurisdictional

defenses. Wilson v. United States, supra. And while his guilty plea preserved his appellate rights,

4 The Court provides two examples, somewhat analogous to this case:

For example, suppose that a defendant consults with counsel; counsel advises the defendant that a

guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads

guilty; the court sentences the defendant to 2 years’ imprisonment as expected and informs the

defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel

concludes that there are no nonfrivolous grounds for appeal. Under these circumstances, it would be

difficult to say that counsel is “professionally unreasonable,” (citation omitted), as a constitutional

matter, in not consulting with such a defendant regarding an appeal. Or, for example, suppose a

sentencing court’s instructions to a defendant about his appeal rights in a particular case are so clear

and informative as to substitute for counsel's duty to consult. In some cases, counsel might then

reasonably decide that he need not repeat that information.

Id. at 479-80.

the record demonstrates there were no non-frivolous grounds for appeal. The facts were undisputed.

There were no objections to the PSR or the application of the advisory sentencing guidelines. (cr

Dkt. 101 at 4). Petitioner’s advisory guidelines range was 135 to 168 months, but he received a 120

month sentence. (PSR 4 58; cr Dkt. 92). As discussed, his base offense level was calculated based

on his own account that there were 27 bales of cocaine on board his go-fast vessel. (PSR 4 15, 21).

His role in the offense was not enhanced, notwithstanding that he was the “load guard.” (Id. at § 24).

He was safety valve eligible. He received all three levels for acceptance of responsibility. (Id. at 4]

28-29). His counsel’s request for a downward variance was granted, and he received the identical

sentence his similarly situated co-defendant, Calderon-Alay, received, and 12 months less than the

Captain’s sentence. (Id. at 2; cr Dkt. 101 at 5).

Considering his guilty plea and that he received a sentence below his advisory guidelines

range, identical to his similarly situated co-defendant’s, and that there was, as will be discussed, the

prospect of earning a Rule 35 sentence reduction if he continued to cooperate, there was no reason

to think that a rational defendant would have wanted to appeal. Under the circumstances, counsel

was not under a constitutional obligation to consult with him about an appeal. Ofero, 499 F.3d at

1271.

There was an adequate consultation about an appeal

Assuming a constitutional duty arose, the question is whether the attorney consulted with

Petitioner regarding the advantages and disadvantages of appealing and made a reasonable effort to

determine the client’s wishes. Flores-Ortega, 528 U.S. at 478; Gomez-Diaz, 433 F.3d at 792.

Petitioner acknowledges that his attorney spoke with him about his right to appeal before

and after sentencing, and opined that there was nothing to appeal. And the court explained his right

to an appeal immediately after imposing sentence, and he had no questions about that right. (cr Dkt.

101 at 11-12) (“Listen carefully to his advice. It is, however, your decision, not his, but you must let

him know within days whether you wish to appeal or not, and he will file that appeal if you request

him to do so . . .”).° Petitioner’s conclusory contentions do not overcome the strong presumption

that counsel’s advice and consultation fell within the range of reasonable professional assistance.

Weeks, 26 F.3d at 1036.

Petitioner apparently agreed with counsel’s advice that there was no basis to appeal, as he

does not contend that he expressed any interest in appealing, instructed his attorney to file an appeal,

or that his attorney ignored his expressed desire to appeal. See Devine v. United States, 520 F.3d

1286, 1289 (11th Cir. 2008) (where defendant understands attorney’s opinion that an appeal would

be futile and says nothing to suggest that he was interested in appealing anyway, court’s finding that

defendant did not reasonably demonstrate to attorney that he was interested in appealing not

erroneous); Gaston v. United States, 318 F. App’x 750, 752 (11th Cir. 2008) (same).

Where, as here, Petitioner admits that counsel conferred with him about his right to appeal,

counsel acted unreasonably only if he ignored Petitioner’s wishes to appeal. Flores-Ortega, 528

U.S. at 480. The court is mindful that “simply asserting the view that an appeal would not be

> The sentencing transcript confirms that the court advised Petitioner of his right to appeal immediately after

sentence was imposed, as well as his right to be represented by counsel on appeal if he was unable to afford counsel:

THE COURT: Sefior, you have 14 days within which to appeal to a higher court. You're entitled to be

represented by counsel, and if you're not able to pay a lawyer, the Court will appoint a lawyer to

represent you on appeal free of charge, and the clerk will accept your notice of appeal without payment

of a filing fee. Your attorney will discuss and explain to you the advantages and disadvantages of an

appeal, not the least of which is the impact an appeal could have on your eligibility for a Rule 35

motion which you hope to earn in the future from the Government.

Listen carefully to his advice. It is, however, your decision, not his, but you must let him

know within days whether you wish to appeal or not, and he will file that appeal if you request him to

do so, and if you waive your right to appeal he will document that so there's no misunderstanding

about your decision in that regard.

Do you have any questions about your appellate rights, sir?

THE DEFENDANT: No.

(cr Dkt. 101 at 11-12).

successful does not constitute ‘consultation’ in any meaningful sense.” Thompson v. United States,

504 F.3d 1203, 1207 (11th Cir. 2007). In the context of that case, that proposition is understandable,

since Thompson expressed unhappiness with his sentence as compared to his co-defendants’. Unlike

the defendant in Thompson, however, as noted, Petitioner received the same sentence as his similarly

situated co-defendant, Calderon-Alay.

Distilled to its essence, Petitioner contends that counsel’s consultation about an appeal was

inadequate. Specifically, he complains that counsel did not advise of him of the advantages and

disadvantages of an appeal, listing several aspects of an appeal that he contends should have been

addressed by counsel. (cv Dkt. 1 at 14). Considering the record and the sentence Petitioner received,

however, it was reasonable for counsel to have advised him that there was no basis to appeal. And

the topics he contends should have been discussed are fanciful at best, and at worst, without merit,

if not frivolous. Accordingly, even if counsel’s consultation was less than meaningful, Petitioner is

unable to show that he was prejudiced.

First, assuming that counsel erroneously advised Petitioner that he had waived his right to

appeal, the court’s instructions on his right to appeal cured any defect in that advice. Second, by

pleading guilty, he did waive all non-jurisdictional challenges to the constitutionality of his

conviction, save only an attack on the voluntary and knowing nature of the plea could be challenged,

which he does not list as a ground counsel should have discussed. Wilson, 962 F.2d 996.

Considering the record, further evidentiary inquiry is unnecessary.° First, Petitioner’s

allegations are conclusory and contradictory, essentially nothing more than unsupported

6 Included in the United States’ response is the affidavit of Petitioner’s former counsel (cv Dkt. 6, Exhibit A).

Petitioner contends “there are dueling affidavits between Mr. Caicedo and his attorney Gerasimos Theophilopolos” and

that an evidentiary hearing is therefore required. (cv Dkt. 11 at 3). I disagree.

First, Petitioner’s claims can be resolved without considering counsel’s affidavit. Second, even if the affidavit

is considered, specifically counsel’s averment that he discussed Petitioner’s appellate rights with him during the review

of his PSR with an interpreter, and again after sentencing, those averments are consistent with Petitioner’s

10

generalizations. For example, on the one hand, he contends that “[c]ounsel was ineffective in [not]

filing a motion to appeal within 14 days and failed to disclose that I had a right to appeal.” (cv Dkt.

1 at | 11(d)) (emphasis added). And in his Reply, he alludes to counsel’s “failure to consult with

Mr. Caicedo after sentencing.” (cv Dkt. 11 at 4). In the “supporting facts” section of Ground Two,

however, he contradicts those assertions by alleging that “[bJefore and after sentencing, defense

counsel told Mr. Caicedo-Avila that there was nothing to appeal and that he had waived his right to

appeal anyway.” (cv Dkt. 1 at 14). Moreover, the court’s advisement of his right to appeal effectively

substituted for any duty counsel had, under the circumstances. Flores-Ortega, 528 U.S. at 479-80.

In determining whether counsel acted reasonably, the totality of the circumstances are

considered, including the “highly relevant factor” that Petitioner pleaded guilty, “because a guilty

plea reduces the scope of potentially appealable issues and because such a plea may indicate that the

defendant seeks an end to judicial proceedings.” Jd. at 480; Otero, 499 F.3d at 1270. And his below

guidelines sentence dispels any notion that he expressed dissatisfaction with his sentence. Indeed,

contradicting his contention that his counsel “knew [he] wanted the 97 month sentence received by

his co-defendant,” neither of his co-defendants received a 97 month sentence. Mero-Sornoza

received 132 months (cr Dkt. 88) and Calderon-Alay received concurrent 120 month terms (cr Dkt.

acknowledgement that counsel spoke with him about his appellate rights before and after sentencing. And as for

counsel’s averments that Petitioner told him “if he received 120 months then he did not wish to appeal,” reiterated that

just before sentencing, and after sentencing expressed satisfaction with his sentence and “for the third time [] requested

that I not file an appeal,” Petitioner does not contest or counter those averments in his Reply. There are not, therefore,

contrary to Petitioner’s claim, dueling affidavits.

7 Since Operation Panama Express has brought dozens, if not hundreds of “boat cases” into the Tampa Division

of the Middle District of Florida, it has been the experience of the undersigned that when Spanish speaking defendants

in these cases file motions to vacate, someone, likely a fellow inmate with knowledge of what allegations trigger the

requirement of an evidentiary hearing, but without accurate knowledge of the proceedings and underlying facts, drafts

these motions. And that appears to be the case with Petitioner’s motion and Reply, as evidenced by the factual

inaccuracies and inconsistencies discussed. This undermines the reliability of Petitioner’s supposed sworn contentions

and mitigates against spending limited resources to conduct an evidentiary hearing, absent specific factual dispute.

Mindful of Gomez-Diaz v. United States, 433 F3d 788 (11th Cir. 2005), the undersigned does not hesitate to conduct

evidentiary hearings when defendants contend that counsel failed or refused to file an appeal after being asked to do so.

11

Further, the record demonstrates, consistent with the court’s advice, that there was a good

reason not to pursue an appeal. An appeal could impact his eligibility for a Rule 35 motion based on

substantial assistance.® Indeed, counsel represented to the court at sentencing: “In addition, he has

had several proffers and they’ve been fruitful, which hopefully down the road he'll be receiving a

Rule 35.” (cr Dkt. 101 at 7). And the prosecutor informed the court: “And with regards to

cooperation, we’re not filing a 5K at this time but we are hopeful that he will provide information

that will lead to a Rule 35. We are not there yet, but we are hopeful that eventually it will be at that

point. Again, Your Honor, we feel a guideline range sentence is appropriate in this case.” (Id. at □□□□

To establish prejudice under Strickland, Petitioner “must demonstrate that there is a

reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal,

he would have timely appealed.” Flores-Ortega, 528 U.S. at 485.

In conclusory fashion, Petitioner contends that his decision not to appeal would have been

different if his attorney had explained certain things. See (cv Dkt. 1 at 14) (“If counsel had properly

instructed Mr. Caicedo-Avila on the law and legal consequences of not filing on [sic] appeal, then

Mr. Caicedo-Avila would have appealed.”). But he does not identify any non-frivolous grounds for

At the same time, when it is apparent, as here, that a defendant engages someone else to draft his § 2255 motion, and

the face of the pleadings demonstrates that the factual assertions are inaccurate and inconsistent, conducting an

evidentiary hearing to clear up those inaccuracies and inconsistencies requires considerable expense and causes

inconvenience to the United States Marshals Service and United States Attorney. In sum, this record does not warrant

evidentiary inquiry into Petitioner’s conclusory and inconsistent contentions, particularly considering his

acknowledgment that counsel discussed his right to appeal with him before and after sentencing, and he does not contend

that he asked counsel to appeal or expressed any interest in appealing.

8 The court advised Petitioner: “Your attorney will discuss and explain to you the advantages and disadvantages

of an appeal, not the least of which is the impact an appeal could have on your eligibility for a Rule 35 motion which

you hope to earn in the future from the Government.” (cr Dkt. 101 at 11).

9 While the record does not explain how an appeal could impact Petitioner’s eligibility for a Rule 35 motion, it

is common knowledge in the Middle District of Florida that the U.S. Attorney’s Office will not file a Rule 35 motion if

a defendant appeals, which explains the court’s statement: “Your attorney will discuss and explain to you the advantages

and disadvantages of an appeal, not the least of which is the impact an appeal could have on your eligibility for a Rule

35 motion which you hope to earn in the future from the Government.” (Id. at 11).

12

appeal that he wanted to pursue, or that he expressed an interest in appealing to counsel.!° While he

is not required to demonstrate that a “hypothetical appeal might have had merit,” he must

demonstrate that “but for counsel’s deficient conduct, he would have appealed.” Flores-Ortega, 528

US. at 486. In this regard, he fails. The purported issues and consequences of not appealing he

contends counsel should have discussed are fanciful at best, and at worst, unsupported and frivolous.

For example, Petitioner’s subjective belief that his sentence was unfair would not have been

a basis to appeal, especially considering that the sentence was below his advisory guidelines range

and identical to his similarly situated co-defendant. And his veiled contention that his offense had

an insufficient nexus with the United States is contrary to settled law, not an issue counsel would

have reasonably considered as a basis to appeal, or even worthy of consideration in deciding whether

to appeal. See United States v. Estupian, 453 F.3d 1336 (11th Cir. 2006); United States v. Tinoco,

304 F.3d 1088 (11th Cir. 2002),"!

'© Petitioner lists purported appellate issues and consequences of not appealing which he contends counsel

should have explained, including:

- □□ “reiterated to defense counsel that he did not believe the sentence was fair, especially since the

conviction resulting from an arrest unrelated to United States territory could not be squared with

any concept of justice;”

- “if he did not file a direct appeal, then he forfeited any future challenge to the conviction or

sentence or waived any future challenge to the conviction or sentence;”

- “if he appealed, another attorney would be appointed and his transcripts would be provided both

without charge;” and

- “given the Eleventh Circuit’s decision on how retroactively applicable rules are to be presented

... that if Mr. Caicedo-Avila did not appeal even if futile, then he foreclosed his ability to raise

certain meritorious challenges in the future.”

(cv Dkt. 1 at 14).

In his Reply, Petitioner adds that counsel failed to “explain the procedural default consequences of failing to

appeal,” “explain the failure to appeal’s impact on other retroactive changes in the law,” explain. that the district court

at sentencing by not making individualized findings would impact both his eligibility for future Guidelines adjustment

and his BOP custody classification,” “inform him of a substantial circuit split, that, if resolved in his favor would

extinguish the mandatory minimum,” and “tell [him] that with an appeal, his transcript would be readily available to

him though he was indigent.” (cv Dkt. 11 at 4-5).

'! See also United States v. De Armas, 180 F. App’x (11th Cir. 2006); United States v. Garcia, 182 F. App’x

873 (11th Cir. 2006); United States v. Urena, 140 F. App’x 879 (11th Cir. 2005).

13

Of course, by not appealing, a defendant procedurally defaults any claims concerning

-application of his guidelines or sentencing errors. But Petitioner’s sentencing guidelines were

correctly applied and there were no sentencing errors. And by not appealing, he did not foreclose a

cognizable collateral challenge to his conviction and sentence under 28 U.S.C. § 2255. As for the

appointment of an attorney on appeal and free transcripts, the court advised him after imposition of

sentence of his right to appellate counsel free of charge and that he could file his notice of appeal

without paying the filing fee. (cr Dkt. 101 at 11-12). And he had already been deemed indigent for

purposes of proceeding in forma pauperis on appeal. Finally, Petitioner does not identify what

Circuit split exists relevant to his conviction and sentence, and what, if any, Eleventh Circuit

retroactive rules counsel should have explained, or what findings the court should have made at

sentencing. Counsel’s duty to consult about an appeal does not require him to anticipate changes in

the law. United States v. Levy, 391 F.3d 1327, 1334 (11th Cir. 2004).

In summary, Petitioner acknowledges that his attorney consulted with him about an appeal

before and after sentencing. And counsel correctly opined to him that there was no basis on which

to appeal. Counsel therefore fulfilled his duty to consult with Petitioner about an appeal and thereby

made a reasonable effort to determine his wishes. See Medina v. United States, 167 F. App’x 128,

134-35 (11th Cir. 2006) (where client neither instructs attorney to appeal nor asks that an appeal not

be taken, relevant question in determining whether attorney performed deficiently by not filing the

appeal is whether counsel in fact consulted with the defendant about an appeal). Where, as here,

counsel consults with the client about an appeal, “the question of deficient performance is easily

answered: Counsel performs in a professionally unreasonable manner only by failing to follow the

defendant’s express instructions with respect to an appeal.” Flores-Ortega, 528 U.S. at 478.

14

By virtue of Petitioner’s guilty plea, the sentence he received, and the court’s advisement

of his right to appeal and the appointment of counsel, counsel did not have a constitutional duty to

consult with him about an appeal. Even if counsel had a duty, Petitioner admits that counsel

discussed an appeal with him before and after sentencing and opined with good reason that there

was no basis on which to appeal, advice Petitioner agreed with at the time, since he did not direct

counsel to file an appeal or express an interest in appealing. Flores-Ortega, 528 U.S. at 477 (“...

a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that,

by following his instructions, his counsel performed deficiently.”). Petitioner has not shown

deficient performance or prejudice resulting from any claimed deficient performance. Ground Two

is therefore due to be dismissed.

Evidentiary Hearing Not Required

Petitioner’s allegations, even if true, do not entitle him to relief and therefore do not warrant

an evidentiary hearing. Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (“[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.”). While he need only allege, not prove,

“reasonably specific, non-conclusory facts that, if true, would entitle him to relief,” a hearing is not

required where, as here, “the allegations are patently frivolous, based upon unsupported

generalizations, or affirmatively contradicted by the record.” Winthrop—Redin v. United States, 767

F.3d 1210, 1216 (11th Cir. 2014). More specifically, Petitioner’s contradictory, conclusory

allegations of ineffective assistance of counsel and unsupported generalizations are not sufficient to

require evidentiary inquiry. And he fails to rebut or counter counsel’s averments that he expressly

told counsel that he did not want to appeal.

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Certificate of Appealability

Petitioner is granted a certificate of appealability on Ground Two.!? Jurists of reason could

disagree on whether counsel had a constitutional duty to consult with Petitioner about an appeal, and

if so, whether counsel satisfied that duty, considering Thompson v. United States, supra. He is not

entitled to a certificate of appealability on Ground One. Jurists of reason would not find the

_ assessment of that claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Conclusion

Petitioner Caicedo-Avila’s § 2255 motion is DENIED. The Clerk is directed to enter

judgment in favor of the United States and CLOSE this case.

DONE AND ORDERED this 22 day of January, 2020.

JAM D. WHITTEMORE

United States District Judge

Copies to: Petitioner, United States Attorney’s Office

12 “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)(2). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of

reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.”” Buck v. Davis, 137 S. Ct. 759, 773 (2017)

(quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).

16