Harrell v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MICHAEL JAMES HARRELL,

Petitioner,

v. Case No: 2:16-cv-284-FtM-29MRM

Case No. 2:11-CR-108-FTM-29CM

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

This matter comes before the Court on petitioner’s Motion

Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct

Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.

#331)1 and Memorandum of Law to Support (Cv. Doc. #2; Cr. Doc.

#332) filed on April 19, 2016. The government filed a Response

in Opposition to Motion (Cv. Doc. #8) on June 17, 2016. The

petitioner filed a Reply (Cv. Doc. #10) on July 11, 2016.

Also before the Court is petitioner’s Motion to Grant Harrell

Relief in Light of Dimaya v Session (Cv. Doc. #19), filed on August

13, 2018. The government’s Response in Opposition (Cv. Doc. #20)

was filed on October 26, 2018.

1The Court will refer to the docket of the civil habeas case as

“Cv. Doc.”, and will refer to the docket of the underlying criminal

case as “Cr. Doc.”

Between March 12, 2019, and October 1, 2019 the case was

stayed at petitioner’s request (Cv. Docs. #27, #29) awaiting the

decision in a case then pending before the United States Supreme

Court. After the case was decided, petitioner was allowed to file

a supplemental memorandum addressing its impact. On November 20,

2019, petitioner filed two identical documents which were each

designated as a Reply (Cv. Docs. #35, #36).

I.

On September 19, 2012, a federal grand jury in Fort Myers,

Florida returned an eleven-count Second Superseding Indictment

(Cr. Doc. #139) against Michael James Harrell (petitioner or

Harrell) and two other defendants. The charges against petitioner

were: conspiracy between June 6 and October 7, 2011, to commit

armed robbery of banks and a credit union (Count One); conspiracy

between the same dates to use and carry a firearm during and in

relation to, and possess a firearm in furtherance of, bank robbery

(Count Two); armed robbery of a credit union on June 6, 2011 (Count

Three); using and carrying a firearm during and in relation to,

and possessing a firearm in furtherance of, a credit union robbery

on June 6, 2011 (Count Four); armed bank robbery on August 12,

2011 (Count Five); using and carrying a firearm during and in

relation to, and possessing a firearm in furtherance of, a bank

robbery on August 12, 2011 (Count Six); armed bank robbery on

August 31, 2011 (Count Seven); using and carrying a firearm during

and in relation to, and possessing a firearm in furtherance of, a

bank robbery on August 31, 2011 (Count Eight); attempted bank

robbery on September 14, 2011 (Count Nine); attempted bank robbery

on October 4, 2011 (Count Ten); and attempted bank robbery on

October 7, 2011 (Count Eleven).

A jury trial for all three defendants began on January 8,

2013. (Cr. Doc. #193.) On February 1, 2013, the jury returned

guilty verdicts on all counts against petitioner, although on

Counts Four, Six, and Eight petitioner was convicted only of

carrying and possessing a firearm, but not using a firearm. (Cr.

Doc. #217.)

On May 13, 2013, the Court sentenced petitioner to concurrent

terms of 60 months imprisonment as to Counts One, Two, Three, Five,

Seven, Nine, Ten, and Eleven; 84 months imprisonment as to Count

Four, to be served consecutively to the 60 month terms; 300 months

imprisonment as to Count Six, to be served consecutively to the

term in Count Four; and 300 months imprisonment as to Count Eight,

to be served consecutive to the Count Six, for a total of 744

months of imprisonment, followed by terms of supervised release.

Judgment (Cr. Doc. #254) was filed on May 14, 2013.

Petitioner appealed the judgment and conviction, presenting

only one argument - that the district court abused its discretion

by denying a motion for a mistrial. (Cr. Doc. #328, p. 2.) On

December 18, 2015, the Eleventh Circuit affirmed the convictions.

See United States v. Harrell, 635 F. App'x 682 (11th Cir. 2015).

Petitioner did not seek a Writ of Certiorari from the United States

Supreme Court.

The United States concedes that petitioner’s § 2255 motion is

timely (Cv. Doc. #8, p. 13), and the Court agrees.

II.

The Court begins with petitioner’s claims of ineffective

assistance of counsel. Petitioner argues that his trial attorney

provided ineffective assistance by failing to raise various

objections during trial, and that his appellate counsel provided

ineffective assistance by failing to raise certain issues on direct

appeal.

A. Ineffective Assistance of Trial Counsel Legal Standard

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).

B. Ineffective Assistance of Trial Counsel Arguments

Petitioner presents seven claims asserting that his trial

attorney provided constitutionally ineffective assistance by

failing to object during certain portions of the trial. The Court

discusses each claim in turn, and finds neither deficient

performance by counsel nor prejudice to petitioner.

(1) Lack of Rule 404(b) Notice

During trial, the government introduced testimony from

Lakisha Rice, Vincent D’Amore, and Brian Grabecki regarding an

attempted armed robbery at Florida Gulf Bank on September 2, 2011.

Petitioner asserts that given the date of this attempted bank

robbery, his attorney should have known that this offense was not

part of the charged offense and therefore a notice was required

pursuant to Federal Rule of Evidence 404(b). Because no notice

was given, petitioner asserts he was deprived of the opportunity

to require the government to demonstrate the relevance of the

evidence and prejudiced by the lack of an opportunity to prepare

for this testimony. Petitioner asserts that there was a high

probability that, had notice been given, the Court would have

excluded this evidence. Thus, petitioner argues, his trial

attorney provided constitutionally ineffective assistance by

failing to raise the lack of notice issue as to this Rule 404(b)

evidence. (Cv. Doc. #2, pp. 3-5; Cv. Doc. #10, pp. 1-2.)

The Court accepts and adopts the government’s summary of the

evidence concerning the Florida Gulf Bank attempted robbery as

being a fair and accurate summary of the evidence:

In 2011, Lakisha Rice worked at a Florida Gulf

Coast Bank in Fort Myers. Doc. 297 at 54, 56.

She was friends with Harrell, Doc. 297 at 54–

55, and, in August 2011, he contacted her and

asked for help with a research project about

how to start a bank that he supposedly was

doing for school, Doc. 297 at 65–66. Rice told

him that she could not help him, but he

continued to send her text messages asking for

help. Doc. 297 at 66; see Gov’t Exs. 37-1, 37-

2. On September 2, 2011, at about 9:00 a.m.,

Rice was working with another teller when the

other teller noticed that someone was backing

up a white truck toward the bank. Doc. 297 at

56; see Gov’t Ex. 38A. She yelled, “Oh, my

God, ooh, ooh, ooh, it’s them,” and hit the

magnetic lock for the bank’s doors. Doc. 297

at 56–57. At the same time, Rice hit the alarm

button. Doc. 297 at 57. They heard someone

trying to open the door but then saw them speed

off in the white truck.Doc. 297 at 56–57.

Surveillance cameras outside the bank captured

pictures of two men dressed in black trying to

get into the bank. Doc. 297 at 58–60; Gov’t

Ex. 38A. One of the men was carrying a gun.

Doc. 297 at 59. A third person was driving the

truck. Doc. 297 at 64. Officers found the

truck, which had been stolen, about a half

mile away. Doc. 297 at 84–85, 93–96, 100; see

Gov’t Exs. 38C through 38H. A detective later

showed Rice a picture of Harrell from the

Preferred Community Bank surveillance cameras

and asked her if she had ever seen him before.

Doc. 297 at 77–78. She recognized Harrell in

the photo. Doc. 297 at 79. Cell-phone records

showed that Harrell’s phone had been in the

vicinity of the bank around the time of the

robbery. Doc. 305 at 112–13; Gov’t Ex. 111D.

(Cv. Doc. #8, p. 7.)

Under Rule 404(b), evidence of other crimes or prior bad acts

“is not admissible to prove a person's character in order to show

that on a particular occasion the person acted in accordance with

[that] character,” but it may be admissible to prove, among other

things, the defendant's knowledge, absence of mistake, or lack of

accident. Fed. R. Evid. 404(b). Importantly, “Rule 404(b) is a

rule ‘of inclusion which allows extrinsic evidence unless it tends

to prove only criminal propensity.’” United States v. Hano, 922

F.3d 1272, 1291 (11th Cir. 2019) (quoting United States v. Sanders,

668 F.3d 1298, 1314 (11th Cir. 2012)).

Rule 404(b) also provides that upon “request by a defendant

in a criminal case, the prosecutor must: (A) provide reasonable

notice of the general nature of any such evidence that the

prosecutor intends to offer at trial; and (B) do so before trial—

or during trial if the court, for good cause, excuses the lack of

pretrial notice.” Fed .R. Evid. 404(b)(2). Three factors

influence the reasonableness of notice: when the government could

have learned of the availability of a witness, the extent of the

prejudice from a lack of time to prepare, and the significant of

the evidence. United States v. Carswell, 178 F. App'x 1009, 1011

(11th Cir. 2006).

Not all uncharged offenses fall within the scope of Rule

404(b):

But evidence of criminal activity other than

the charged offense is not “extrinsic” under

Rule 404(b), and thus falls outside the scope

of the Rule, when it is “(1) an uncharged

offense which arose out of the same

transaction or series of transactions as the

charged offense, (2) necessary to complete the

story of the crime, or (3) inextricably

intertwined with the evidence regarding the

charged offense.” United States v. Baker, 432

F.3d 1189, 1205 n.9 (11th Cir. 2005) (quoting

United States v. Veltmann, 6 F.3d 1483, 1498

(11th Cir. 1993)). “Evidence, not part of the

crime charged but pertaining to the chain of

events explaining the context, motive[,] and

set-up of the crime, is properly admitted if

linked in time and circumstances with the

charged crime, or forms an integral and

natural part of an account of the crime, or is

necessary to complete the story of the crime

for the jury.” United States v. McLean, 138

F.3d 1398, 1403 (11th Cir. 1998). And evidence

is inextricably intertwined with the evidence

regarding the charged offense if it forms an

“integral and natural part of the witness's

accounts of the circumstances surrounding the

offenses for which the defendant was

indicted.” United States v. Foster, 889 F.2d

1049, 1053 (11th Cir. 1989). Nonetheless,

evidence of criminal activity other than the

charged offense, whether inside or outside the

scope of Rule 404(b), must still satisfy the

requirements of Rule 403. Baker, 432 F.3d at

1219 n.36.

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

The Second Superseding Indictment (Cr. Doc. #139) charged a

bank robbery conspiracy “[f]rom a date unknown, but at least by on

or about June 6, 2011, and continuing to on or about October 7,

2011”. While the attempted robbery at the Florida Gulf Coast Bank

in Fort Myers was not identified as an overt act in the conspiracy,

or as a substantive count, it occurred on September 2, 2011, a

date well within the time frame of the conspiracy. The Second

Superseding Indictment identified bank or credit union robberies

on June 6, August 12, and August 31, 2011, and attempted bank

robberies on September 14, October 4, and October 7, 2011. The

September 2, 2011 attempted bank robbery clearly arose out of the

same series of transactions as the charged offenses and was

necessary to complete the story of the crimes. This evidence was

not governed by Rule 404(b), and no notice was required.

While notice was not required under Rule 404(b), petitioner

was given reasonable notice of the Florida Gulf Coast Bank

attempted robbery early in the proceedings. The Criminal

Complaint (Cr. Doc. #3) filed against petitioner on October 7,

2011, contained three paragraphs outlining the facts of the

attempted bank robbery at the Florida Gulf Coast Bank. (Id. at

¶¶ 25-27.) At the November 7, 2011, arraignment on the original

Indictment and detention hearing, the government proffered this

attempted robbery as part of its evidence against petitioner: “We

also have geolocation cell site information for the defendant's

phone showing that he was in the vicinity of the Florida Gulf Bank

located at 8070 Daniels Parkway on September 2nd, 2011, at the

time of the attempted bank robbery of that bank.” (Cr. Doc. #43,

p. 17.) Even if petitioner’s attorney had objected to the

testimony regarding this attempted robbery, there is no reasonable

probability that the Court would have excluded the testimony.

The Court finds that the failure of petitioner’s attorney to

object to the evidence concerning the attempted robbery of the

Florida Gulf Coast Bank on September 2, 2011, or to the lack of a

Rule 404(b) notice as to such evidence, did not constitute

deficient performance and did not prejudice petitioner.

(2) In-Court Identification

Petitioner asserts that his attorney’s failure to object to

the in-court identification by Kenneth Dobson, the Chief of the

City of Fort Myers Fire Department, or to request an evidentiary

hearing prior to the identification, constituted ineffective

assistance of counsel. Petitioner argues that his attorney should

have objected because the in-court identification violated due

process, and should have requested an evidentiary hearing to

determine if there was an independent source for the

identification. Petitioner also argues that because of the length

of time between Chief Dobson’s observations (June 6, 2011) and the

identification at trial (June 9, 2013), the government cannot prove

an independent source for the identification. (Cv. Doc. #2, pp.

5-7; Cv. Doc. #10, pp. 2-3.)

The Court accepts and adopts the government’s summary of the

evidence concerning the Lee County Postal Credit Union robbery and

the identification by Chief Dobson as being a fair and accurate

summary of the evidence:

On June 6, 2011, Sally Lee and Ann Rairden

were working at the Lee County Postal Credit

Union when someone came in, dressed in black

from head to toe, “like a ninja.” Doc. 295 at

60, 101. After jumping over the teller

counter, the man grabbed Lee by her shirt, put

a gun to her head, and told her to go to the

safe and to get money. Doc. 295 at 60–61, 70,

90, 102–03. Lee fell to the ground, but the

man dragged her and told her to get the money.

Doc. 295 at 61. Lee pulled open a money drawer,

and the man pushed Lee to the ground and,

pointing the gun at her head, told her to get

down or he would kill her. Doc. 295 at 61–62.

A second man, who also was carrying a gun,

also jumped over the teller counter and took

cash from a second teller drawer. Doc. 295 at

62–63, 90, 103. A surveillance video camera

captured the robbery. Doc. 295 at 64–65; Gov’t

Ex. 4; see also Gov’t Exs. 5A–5G.

Coconspirator Victor Wilson testified at trial

that Colbert had told him that Colbert and

Kevin Smiley had been the credit-union robbers

and that Colbert had used his .357 gun during

the robbery. Doc. 303 at 180–83. Colbert,

Harrell, and Smiley also had told Wilson that

Harrell had driven of the getaway car. Doc.

303 at 184, 187–88.

An eye-witness to the robbers’ flight, Kenneth

Dobson, identified Harrell as the driver of

the getaway vehicle, Doc. 295 at 134–36.

Dobson was the fire chief of the City of Fort

Myers. Id. at 127. Dobson said he was at the

intersection of Jackson and Bay Streets in his

vehicle and could see a white SUV approaching.

The vehicle passed him at about a distance of

10 feet. Dobson saw one person in the vehicle,

the driver, sitting up in the seat, holding

the wheel, looking straight ahead. Dobson

said the driver was a black male who looked to

be bald and somewhat thin by the way he was

sitting and the way he was leaning. He might

have had some hair on his chin, like a beard.

Dobson remembered clearly the way he was

sitting in the vehicle and that the driver’s

Adam's apple was sticking out in such a way

because of the way he was leaning forward.

Dobson estimated that the driver was

approximately 30 years old. Dobson said that

he saw the driver through the windshield

approaching, and then through the side as it

was driving by. Dobson said that he believed

he recognized the driver in the courtroom and

identified Harrell as the driver. Defense

counsel had no objection to the prosecutor’s

request that the record reflect the witness

had identified Harrell as the person in the

SUV that day. Id. at 131-36.

On cross examination, defense counsel asked

whether Dobson saw glasses, how many seconds

he was able to view the driver, the distance

between Dobson and the driver, what the driver

was wearing, any hair on the driver’s head,

the color of his clothes, whether Dobson was

positive Harrell was the driver, and how

Dobson was able to see the driver through the

vehicle. Id. at 138-44. There was no testimony

or evidence that Dobson’s identification was

an unduly suggestive identification.

Cellphone records showed that Harrell’s phone

had been in the vicinity of the bank at the

time of the robbery, Doc. 305 at 106–08; see

Gov’t Ex. 111A.

(Cv. Doc. #8, pp. 3-4.)

The Constitution does not impose a per se rule requiring an

evidentiary hearing concerning in-court identification in every

case. Watkins v. Sowders, 449 U.S. 341, 349 (1981) (“A judicial

determination outside the presence of the jury of the admissibility

of identification evidence may often be advisable. In some

circumstances, not presented here, such a determination may be

constitutionally necessary. But it does not follow that the

Constitution requires a per se rule compelling such a procedure in

every case.”) “The fallibility of eyewitness evidence does not,

without the taint of improper state conduct, warrant a due process

rule requiring a trial court to screen such evidence for

reliability before allowing the jury to assess its

creditworthiness.” Perry v. New Hampshire, 565 U.S. 228, 245

(2012). In-court identification may be admissible despite prior

suggestive conduct.

[An] in-court identification, even if preceded

by a suggestive out-of-court identification

procedure, is nevertheless admissible if the

in-court identification has an independent

source. United States v. Wade, 388 U.S. 218,

241 (1967). Among the indicia of a

sufficient, independent basis for

identification are the witness's opportunity

to observe the defendant at the time of the

offense, the witness's degree of attention,

the degree of certainty shown at the

confrontation, and the length of time between

the crime and the confrontation. Neil v.

Biggers, 409 U.S. 188, 199-200 (1972).

United States v. Cannington, 729 F.2d 702, 711 (11th Cir. 1984).

In this case, there was no suggestion that there was any prior

suggestive out-of-court identification procedure concerning the

identification of petitioner by Chief Dobson, and therefore no

need for a hearing to examine the procedure or look for an

independent source. Defense counsel cross-examined Chief Dobson

as to his identification, and the U.S. Supreme Court has noted

that “cross-examination has always been considered a most

effective way to ascertain truth.” Watkins, 449 U.S. at 349. The

circumstances of the identification noted by petitioner were for

the jury to weigh and determine, and the jury was properly

instructed as to the government’s burden of proving

identification. (Cr. Doc. #212, p. 10.)

The Court finds that the failure of petitioner’s attorney to

object to the in-court identification by Chief Dobson or to request

an evidentiary hearing outside the presence of the jury did not

constitute deficient performance and did not prejudice petitioner.

(3) Lay Opinion Testimony

Petitioner asserts that his attorney was constitutionally

ineffective by failing to object to the testimony of Laurie Jerriey

as improper lay opinion in violation of Fed. R. Evid. 701. Ms.

Jerriey testified that she believed that the bank was “cased,”

which petitioner asserts was not proper opinion testimony.

Petitioner also asserts that Ms. Jerriey’s identification of

petitioner was only based on the gold teeth of the perpetrator,

which was improperly highlighted by government misconduct. (Cv.

Doc. #2, p. 8; #10, pp. 3-5.)

The Court accepts and adopts the government’s summary of the

evidence concerning the Preferred Community Bank robbery and the

testimony by Laurie Jerriey as being a fair and accurate summary

of the relevant evidence:

At about 10:30 a.m. on August 31, 2011, Diane

Reginek was working at the Preferred Community

Bank when two armed and masked men came into

the bank and told everyone to “get down.” Doc.

296 at 223, 234; see Gov’t Exs. 29 and 30A

through 30T. One of the men carried two

handguns, and the other carried one. Doc. 296

at 224. Both men pointed their guns at

Reginek’s head, and she and a customer got on

the floor. Doc. 296 at 225–26. One robber

jumped over a gate to get behind the teller

line, while the other remained in the lobby.

Doc. 296 at 226. With that robber’s gun

pointed at Reginek, she complied with their

commands to open the teller drawers. Doc. 296

at 228–29. One of the robbers also pointed a

gun at the head of another bank employee,

Laurie Jerriey, and told her to open her

teller drawer. Doc. 296 at 234–25. Jerriey

noticed through the man’s mask that he had

distinctive gold teeth and a long neck, and

she realized the he was the same man who had

come into the bank two days earlier,

supposedly to inquire about opening a new

account. Doc. 296 at 234–35. After she had

opened her teller drawer, the second robber

pointed his two guns at her and told her to

get down on the floor. Doc. 296 at 235–26,

247–48.

Jerriey later told the police that she

believed that the bank had been cased because

she recognized the robber with the gold teeth

from her encounter with him at the bank two

days earlier. Doc. 296 at 253–54. She showed

them pictures from the surveillance videotape

of the day of her encounter with the customer.

Doc. 296 at 255; Gov’t Exs. 32A through 32F.

At trial, she identified Harrell as the person

who had cased the bank, Doc. 296 at 259–60,

and Wilson confirmed that Harrell had gone to

the bank to conduct surveillance, as Jerriey

had suspected, Doc. 297 at 40; Doc. 303 at

210–11. Wilson also testified that Rollins and

Smiley had told him that Rollins had been the

robber who had carried two guns. Doc. 303 at

201.

(Cv. Doc. #8, pp. 8-9.)

“The determination of whether testimony is properly admitted

as lay opinion is based upon the nature of the testimony, not

whether the witness could be qualified as an expert.” United

States v. Moran, 778 F.3d 942, 967 (11th Cir. 2015) (citation

omitted). Under Rule 701,

If a witness is not testifying as an expert,

testimony in the form of an opinion is limited

to one that is:

(a) rationally based on the witness's

perception;

(b) helpful to clearly understanding the

witness's testimony or to determining a fact

in issue; and

(c) not based on scientific, technical, or

other specialized knowledge within the scope

of Rule 702.

Fed. R. Evid. 701. A lay witness may testify based on her

professional experiences “as long as the testimony is rationally

based on those experiences, rather than on scientific or technical

knowledge.” United States v. Williams, 865 F.3d 1328, 1341 (11th

Cir. 2017) (internal quotation marks and citations omitted).

Ms. Jerriey testified as to her own perceptions based on her

years of banking experience. Ms. Jerriey expressed her personal

view to the police that petitioner had been casing the bank based

on having seen him in the bank two days before the robbery. None

of her testimony was based on scientific, technical, or other

specialized knowledge that required her to be qualified as an

expert. Therefore, Ms. Jerriey’s testimony was proper lay opinion

testimony, not expert testimony, and there was no basis for an

objection by defense counsel.

Additionally, Ms. Jerriey did not identify petitioner simply

because of gold teeth. Ms. Jerriey identified petitioner from the

three defendants seated at counsel table because petitioner had

the same features and was the same size as the perpetrator. The

weight to be given to this identification was for the jury.

Additionally, there was no government misconduct in asking the

Court to confirm for the record that the person the witness had

identified was petitioner.

The Court finds that the failure to object to the testimony

of Ms. Jerriey as improper lay opinion testimony, to her

identification of petitioner, or to the government’s request of

the Court regarding which person the witness had identified did

not constitute deficient performance or prejudice petitioner.

(4) Failure to Remove Juror 16

Petitioner asserts that Juror 16 should have been removed

from the jury because the juror knew a witness, and that the

failure of his attorney to request a hearing and to argue for

removal constituted ineffective assistance of counsel. Petitioner

argues that the juror should have been removed because petitioner

is entitled to an impartial jury without a juror biased in favor

of the government. (Cv. Doc. #2, pp. 9-10; Cv. Doc. #10, pp. 5-

6.)

On the sixth day of trial, Brian David Rambo, a logistics

supervisor for Quest Diagnostics, testified that on October 3 and

4, 2011, he reported to the Fort Myers Police Department that two

Quest Diagnostic white Dodge minivans were broken into. (Cr. Doc.

#299, pp. 129-130.) During the testimony Juror 16 sent a note to

the Court stating that she may know the government witness on the

stand, or his father. The Court directed counsel to come to

sidebar and informed counsel that there was a note stating that

juror number 16 may know “this witness or his father.” The Court

asked what counsel wanted to do about the information. Defense

counsel conferred privately, and then agreed with the government

that the Court should do nothing except thank the juror for the

note. In open court, the Court stated “Thank you for the note.

Everything’s fine. You may proceed.” (Id., pp. 130-131.) The

witness did not identify petitioner or the other defendants as

being responsible for the break-ins (id., pp. 128-33), and no

defense attorney asked the witness any questions (id., p. 133).

Petitioner is certainly correct that he has a right to a fair

and impartial jury, and to individual jurors who are not biased in

favor of one side or the other. “Due process also requires ‘a

jury capable and willing to decide the case solely on the evidence

before it, and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such occurrences when

they happen.’” United States v. Brown, 17-15470, 2020 WL 97845, at

*11 (11th Cir. Jan. 9, 2020) (emphasis in original) (quoting Smith

v. Phillips, 455 U.S. 209, 217 (1982)).

A trial court may excuse a juror and replace her with an

alternate if the juror becomes, or is found to be, “unable or

disqualified” to perform her duties. Fed. R. Crim. P. 24(c). The

trial judge may remove and replace a seated juror before

deliberations begin whenever “facts arise . . . that cast doubt on

[that] juror's ability to perform her duties.” United States v.

Smith, 918 F.2d 1501, 1512 (11th Cir. 1990).

The decision to remove a juror and replace him

with an alternate is entrusted to the sound

discretion of the trial judge “whenever facts

are presented which convince the trial judge

that the juror's ability to perform his duty

as a juror is impaired.” [ ] The trial court's

discretion in removing a juror “is not to be

disturbed absent a showing of bias or

prejudice to the defendant . . . or to any

other party.” [ ]

United States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir.

1986)(internal citations omitted). There was no basis to conduct

a further inquiry of the juror or to remove her from the jury in

this case.

Juror 16 stated that she may know the witness or his father.

The witness was testifying about vehicle break-ins at Quest

Diagnostics, and did not implicate petitioner (or either other

defendant) in these break-ins. No defense counsel wanted the

matter pursued, and none asked this minor witness any questions.

Petitioner’s speculation about bias has no foundation.

The Court finds that the failure to object to the continued

service by Juror 16 and failed to request a hearing concerning

Juror 16 did not constitute deficient performance and did not

prejudice petitioner.

(5) Failure to Qualify Expert Witnesses

Petitioner argues that all expert witnesses testified without

1

being qualified, as required by Fed. R. Evid. 702 and Daubert .

Petitioner argues that the trial court failed in its gatekeeping

function by allowing witnesses to testify as experts without first

finding them to be qualified. Petitioner asserts that his

attorney provided ineffective assistance by not arguing that all

experts must be qualified under both Rule 702 and Daubert. (Cv.

Doc. #2, pp. 10-12; Cv. #10, pp. 6-7.)

Petitioner references only the testimony of Connie Bell, a

crime laboratory analyst in the digital evidence section of the

Florida Department of Law Enforcement, who testified regarding the

contents of petitioner’s phone. (Cr. Doc. #302, p. 115.) During

a sidebar conference the following conversation took place:

MR. KAUFMAN: Judge, I might have missed it,

because I was talking to my client, but the

whole purpose of establishing her

1

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

qualifications was to qualify her as an

expert. But I don't know if the -- Mr.

Michelland asked the Court to, you know, allow

her to be qualified as an expert. I might have

missed it, but -- which now she's getting into

some expert --

THE COURT: He didn't, but I don't qualify them

as an expert. I decide whether she can give an

opinion or not, and let the jury decide

whether she's an expert. So I don't make a

finding that she is.

MR. KAUFMAN: Okay.

THE COURT: And if he moves, or if you object,

I'll make a finding that she can state an

opinion, but I'm not going to tell the jury

that's because I find she is an expert.

MR. KAUFMAN: Okay. All right. I thought that's

where we were headed with all of that.

THE COURT: Well, if there's an objection, I

mean --

MR. KAUFMAN: No. She's qualified.

(Id., pp. 130-131.) At the conclusion of the trial the jury was

instructed: “When scientific, technical or other specialized

knowledge might be helpful, a person who has special training or

experience in that field is allowed to state an opinion about the

matter. But that does not mean you must accept the witness’s

opinion. As with any other witness’s testimony, you must decide

for yourself whether to rely upon the opinion.” (Cr. Doc. #212,

p. 5.)

Petitioner is certainly correct that the trial judge must

perform a critical “gatekeeping” function concerning the

admissibility of expert scientific evidence. United States v.

Barton, 909 F.3d 1323, 1331 (11th Cir. 2018). It is also clear,

however, that the trial court is just a gatekeeper, and that Rule

702 is simply a screening procedure, not an opportunity for the

trial judge to substitute its judgment for that of a jury. Id.

at 1332. “[I]t is not the role of the district court to make

ultimate conclusions as to the persuasiveness of the proffered

evidence.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326

F.3d 1333, 1341 (11th Cir. 2003).

The Court performed its gatekeeping function, and stated it

would find the witness qualified to give an opinion if petitioner’s

counsel objected. Petitioner’s counsel agreed that the witness

was qualified. The Court did not characterize the witness as an

“expert,” but properly instructed the jury as to its consideration

of such testimony. Neither the Court nor the Eleventh Circuit

Pattern Criminal Jury Instructions characterize a witness as being

an “expert.” Rather, after the Court determines the witness is

allowed to state an opinion, it is left to the jury to assess the

opinion without being told by the Court that the witness is an

“expert.”

The Court finds that the failure of defense counsel to object

to the trial court not informing the jury that a witness was an

“expert” did not constitute deficient performance and did not

prejudice petitioner. Indeed, the lack of the Court’s imprimatur

as an “expert” was beneficial to petitioner’s case.

(6) Failure to Call Alibi Witness

Although petitioner phrases the issue as “failing to call

alibi witness,” (Cv. Doc. #2, p. 12), his issue does not relate to

an alibi but to impeachment of a government witness, as petitioner

clarified in his Response to the Government’s Opposition (Cv. Doc.

#10, p. 8). Petitioner states that co-defendant Victor Dongrell

Wilson testified as a government witness about a conversation with

Kevin Smiley, who told Wilson about other robberies. While

defense counsel unsuccessfully objected to this testimony as

hearsay, petitioner argues that counsel had an obligation to call

Smiley as a defense witness to impeach Wilson. The failure to do

so, petitioner asserts, constituted ineffective assistance of

counsel. (Cv. Doc. #2, pp. 12-13; Cv. Doc. #10, p. 8.)

Victor Dongrell Wilson, petitioner’s cousin, pled guilty to

conspiracy to commit armed bank robbery and testified as a

government witness pursuant to a cooperation plea agreement. (Cr.

Doc. #303, pp. 159-161.) As the Eleventh Circuit stated:

In this case, the district court did not

clearly err in admitting Wilson’s testimony

about what Smiley told him. As the record

shows, Wilson had discussed robbing a bank

with Colbert, Smiley, and Harrell before he

returned to jail, including the fact that

Wilson would steal a getaway vehicle, and

Harrell would be the getaway driver. While

Wilson might have originally thought they were

joking about robbing banks, at the time he

called Smiley, he knew it was not a joke.

Wilson told Smiley that he wanted a piece of

the action, and they had previously discussed

bank robbery in detail, including who would

play what role. After Wilson got out of jail,

he assisted in the conspiracy by stealing

vehicles, and was present during the casing of

banks. Smiley’s statements explained to

Wilson how the robbery depicted on television

had gone, and could have been intended to

affect future dealings between them. On this

record, it is clear that Wilson and Smiley

were co-conspirators, and that Smiley’s

statements updated Wilson on the conspiracy,

and, thus, were in furtherance of the

conspiracy.

(Cr. Doc. #328, pp. 12-13.)

“Which witnesses, if any, to call, and when to call them, is

the epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess.” Knight v. Florida Dep't of Corr.,

936 F.3d 1322, 1340 (11th Cir. 2019) (quoting Waters v. Thomas, 46

F.3d 1506, 1512 (11th Cir. 1995)) (en banc). Defense counsel has

no duty to call a witness simply because the witness may be able

to impeach a portion of a government witness’s testimony, as the

record in this case highlights.

On July 16, 2013, Kevin Smiley (Smiley) testified as a defense

witness at the sentencing of defendant Maurice Colbert. Smiley

testified on direct examination that he did not know Wilson well,

and denied making the statements about the robberies attributed to

him by Wilson. (Cr. Doc. #315, pp. 19-27.) While this testimony

would have been favorable to petitioner’s position at trial, there

is no indication that Smiley would have agreed to testified during

the trial, which concluded six months before his testimony.

Even if Smiley would have testified, the record establishes

that the impeachment would have inflicted more damage to

petitioner’s case than help, and that a reasonable attorney would

not call Smiley before a jury.

Smiley testified he was convicted of robbery in 2007, the

same type of offense for which petitioner and his co-defendants

were on trial. Smiley was released from prison on April 14, 2011.

(Id., p. 34.) Smiley got his gold teeth in about May 2011, using

$2,000 he had received in the robbery of which he had been

convicted. (Id., pp. 48-49.) Smiley went back to jail on or

about September 8, 2011, on violation of probation charges for a

new offense of aggravated assault, which involved shooting into a

vehicle. (Id., pp. 34, 36, 51-52.) Petitioner received 90 months

imprisonment for the violation of probation, and the aggravated

assault charges were still pending. (Id., p. 52.)

While Smiley testified he did not know Wilson well, and was

not involved in any bank robberies, his testimony undermined his

position. While Smiley testified he only knew of Wilson because

he is a cousin of a friend (id., p. 32), he was with Wilson at a

gentleman’s club and during the shooting into the vehicle incident

for which he was arrested, along with Matthew Rollins and Daniel

Franks. (id., pp. 55-56). Smiley was also with Wilson at a July

24, 2011 birthday party (id., pp. 58-59), and posed with his arm

around Wilson in photograph (id., p. 63), although Smiley testified

he was drunk for the picture (id., p. 65). Smiley’s cell phone

records showed contact information for petitioner, Colbert, and

Wilson. (Id., p. 70.) There were multiple text messages from

Smiley’s phone to and from Wilson, including on September 1, 2011,

regarding a favor Smiley had done for Wilson when Wilson was in

jail (id., pp. 72-74), and texts about Wilson repaying a favor

(id., p. 78). Other texts with petitioner or the co-defendants

could reasonably be viewed as referring to bank robberies being

committed. (Id., pp. 80-90, 93-100.) The government suggested

that surveillance video of a credit union robbery included Smiley,

although he denied it. (Id., pp. 44-45.)

Petitioner has failed to establish by 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. “[T]he mere fact that other witnesses might have

been available or that other testimony might have been elicited

from those who testified is not a sufficient ground to prove

ineffectiveness of counsel.” Chandler v. United States, 218 F.3d

1305, 1316 n.20 (11th Cir. 2000) (en banc) (quotation marks and

citation omitted).

The Court finds that the failure of defense counsel to call

Smiley as a defense witness at trial did not constitute deficient

performance and did not prejudice petitioner.

(7) Failure to Object to Certain Jury Instructions

Petitioner argues that his trial attorney failed to object to

the lack of a jury instruction concerning fingerprint evidence, a

witness’s interest in the outcome of the case, and Rule 404(b)

evidence. These failures, petitioner asserts, constituted

ineffective assistance of counsel. (Cv. Doc. #2, pp. 13-16; Cv.

Doc. #10, pp. 9-10.)

(a) Fingerprint Evidence

Petitioner argues that a jury instruction regarding reliance

on fingerprint evidence should have been given. Witness Trian

Maurice testified that she found a plastic bag in the parking lot

of the bank after the robbery. Ms. Maurice testified that she

could not tell how long the bag was there, and the bag could have

been there for months. Petitioner argues that based on this

testimony the Court should have given the following Florida law

instruction: “When the state relies solely upon fingerprint

evidence to establish a defendant’s guilt, the evidence must

demonstrate that the fingerprints could have been made only when

the crime was committed.” (Cv. Doc. #2, pp. 13-14; Cv. Doc. #10,

p. 9.)

At trial, Trina Maurice testified that she was employed as a

crime scene technician at the Fort Myers Police Department. She

was called to investigate a crime scene at the Wells Fargo Bank on

Lee Boulevard after a bank robbery on August 12, 2011. (Cr. Doc.

#296, pp. 67-68.) After taking pictures, Maurice processed the

teller counter. (Id., pp. 69-71.) Outside the bank, Maurice

collected a white plastic bag near the front entrance. (Id., p.

71.) Maurice used a black magnetic powder to check for latent

prints on the plastic bag, and found fingerprints on the outside

of the bag. (Id., pp. 74-75.) Maurice lifted the prints, but

2

they were examined by someone else. (Id., p. 80.) On cross-

examination, Maurice testified that she could not tell how long

the plastic bag had been sitting in front of the bank, or how long

the fingerprint had been on the plastic bag. (Id., pp. 91, 94.)

Petitioner relies on Grissett v. Sec'y, Dep't of Corr., Fla.

Atty. Gen., 223 F. App'x 846 (11th Cir. 2007), which states in

pertinent part:

Florida ‘law is clear that when the state

relies solely upon fingerprint evidence to

establish a defendant's guilt, the evidence

must demonstrate that the fingerprints could

have been made only when the crime was

2

Witness Cindy Renae Sharkey, a senior forensic examiner at the

Lee County Sheriff’s Office, identified the fingerprints as

belonging to petitioner. (Cr. Doc. #296, pp. 128, 145.)

committed.’ Williams v. State, 740 So. 2d 27,

28 (Fla. 1st DCA 1999). Thus, if the only

evidence is fingerprints, and they are ‘found

on an item or in a place accessible to the

general public . . . the defendant is entitled

to a judgment of acquittal.’” Id. at 2829 [].

Grissett v. Sec'y, Dept. of Corr., Florida Atty. Gen., 223 F. App’x

846, 849 (11th Cir. 2007)(citations omitted). This statement of

Florida law is of course not controlling in the prosecution of a

federal criminal offense. Additionally, the legal principle from

the case does not apply because fingerprint evidence was not the

“only” evidence of defendant’s guilt.

The Court finds that the failure of defense counsel to object

to the trial court’s failure to give the Florida jury instruction

concerning fingerprints did not constitute deficient performance

and did not prejudice petitioner.

(b) Witness’s Interest in Outcome

Petitioner argues that Albert Moore testified as a government

witness at trial that he knew petitioner from jail, and that he

identified petitioner. Petitioner argues that a cautionary jury

instruction should have been given regarding a witness who may

benefit from the outcome of the testimony, and that the instruction

given by the Court was inadequate. Petitioner argues that failure

to request, or object to the absence of, such an adequate

instruction was ineffective assistance. (Cv. Doc. #2, pp. 14-23;

Cv. Doc. #10, pp. 9-10.)

Albert Michael Moore was housed at the Charlotte County Jail

at the time of trial, having entered a plea of guilty to a charge

of possession of a firearm by a convicted felon. (Cr. Doc. #299,

p. 7.) During his trial testimony, Moore detailed his prior felony

convictions. (Id., pp. 8-9.) When he was housed at the Lee

County Jail the first time, Moore met co-defendant Matthew Rollins,

who eventually told him that he robbed three banks. (Id., pp. 12,

17.) The second time Moore was in the Lee County Jail, he met

petitioner, who he said did not wear glasses at the time. Moore

confirmed petitioner’s identity in the courtroom when he pointed

him out as the individual with glasses and a shaved head. (Id.,

p. 21.)

The jury was instructed as follows:

You should also ask yourself whether there was

evidence that a witness testified falsely

about an important fact. And ask whether there

was evidence that at some other time a witness

said or did something, or did not say or do

something, that was different from the

testimony the witness gave during this trial.

To decide whether you believe a witness, you

may consider the fact that the witness has

been convicted of a felony or a crime

involving dishonesty or a false statement.

. . .

You must consider some witnesses’ testimony

with more caution than others.

In this case, the Government has made plea

agreements with a Codefendant and another

person in exchange for their testimony. Such

“plea bargaining,” as it is called, provides

for the possibility of a lesser sentence than

the person would normally face. Plea

bargaining is lawful and proper, and the rules

of this court expressly provide for it.

But a witness who hopes to gain more favorable

treatment may have a reason to make a false

statement in order to strike a good bargain

with the Government.

So while a witness of that kind may be entirely

truthful when testifying, you should consider

that testimony with more caution than the

testimony of other witnesses.

And the fact that a witness has pleaded guilty

to an offense is not evidence of the guilt of

any other person.

(Cr. Doc. #212, pp. 6-7.)

While petitioner argues that this instruction did not apply

to Moore, he is incorrect. The instruction included that “a witness

who hopes to gain more favorable treatment may have a reason to

make a false statement in order to strike a good bargain with the

Government.” The Court gave the substance of the instruction

petitioner now contends should have been given. Since the

appropriate instruction was given, counsel was not ineffective for

failing to request different verbiage.

The Court finds that the failure of defense counsel to object

to the trial court’s jury instruction or to request an additional

jury instruction did not constitute deficient performance and did

not prejudice petitioner.

(c) Rule 404(b) Evidence

Petitioner argues that a jury instruction should have been

given regarding evidence of the unrelated attempted robbery that

was introduced, and that a curative instruction was necessary for

the lack of proper notice pursuant to Rule 404(b). (Cv. Doc. #2,

pp. 15-16; Cv. Doc. #10, p. 10.)

As previously stated, the attempted robbery which petitioner

asserts was an uncharged Rule 404(b) offense was not subject to

Rule 404(b). Accordingly, no Rule 404(b) instruction was

appropriate, nor was an instruction regarding the alleged lack of

proper notice. The Court finds that the failure of defense counsel

to request additional jury instructions regarding Rule 404(b)

evidence and lack of notice did not constitute deficient

performance and did not prejudice petitioner.

C. Ineffective Appellate Counsel Legal Standard

The same deficient performance and prejudice standards

applied to trial counsel also 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. Sec’y

for the Dep’t of Corr., 402 F.3d 1136, 1144-45 (11th Cir. 2005).

D. Ineffective Appellate Counsel Arguments

On direct appeal, petitioner’s counsel raised only one

argument: That the district court abused its discretion by

denying petitioner’s motion for a mistrial. Petitioner argues

that appellate counsel should have raised four additional claims

on direct appeal detailed below, and that failure to do so

constituted ineffective assistance of counsel. (Cv. Doc. #2, pp.

16-22.)

(1) Sufficiency of Evidence For Counts Nine, Ten, Eleven

Petitioner argues that the government provided insufficient

evidence to convict him of the attempted bank robbery charges in

Counts Nine, Ten, and Eleven. Petitioner asserts that the

government failed to prove beyond a reasonable doubt that he “did

knowingly and willfully attempt to take, by force and violence and

by intimidation,” an element of the attempted bank robbery

offenses. Petitioner also asserts that there was insufficient

evidence that a substantial step was taken, as required to

constitute an attempted bank robbery. (Cv. Doc. #2, pp. 16-17; Cv.

Doc. #10, pp. 10-11.)

Counts Nine, Ten, and Eleven allege attempted bank robbery of

three different banks on three different dates in violation of 18

U.S.C. § 2113(a) and § 2. (Cr. Doc. #139, pp. 11-12.) With

regard to these attempted bank robbery counts, the jury was

instructed as follows:

In some cases, it is a crime to attempt to

commit an offense –- even if the attempt

fails. In this case, the Defendants are

charged in Counts Nine, Ten, and Eleven with

attempting to commit bank robbery.

. . .

Defendant can be found guilty of bank robbery

only if all the following facts are proved

beyond a reasonable doubt:

First: That the Defendant knowingly took money

or property possessed by a federally insured

bank or credit union from or in the presence

of another person; and

Second: the Defendant did so by means of force

and violence or by means of intimidation.

A Defendant can be found guilty of an attempt

to commit that offense only if both of the

following facts are proved beyond a reasonable

doubt:

First: That the Defendant knowingly intended

to commit the crime of bank robbery; and

Second: The Defendant’s intent was strongly

corroborated by his taking a substantial step

toward committing the crime.

(Cr. Doc. #212, pp. 24, 26.)

The cases cited by petitioner in his Response do not address

attempted bank robbery. (Cv. Doc. #10, pp. 10-11.) Indeed,

neither the Eleventh Circuit nor the Supreme Court has decided

that “attempted robbery under § 2113(a) requires proof of force

and violence or intimidation, rather than just an attempt to engage

in an act of intimidation.” Brown v. United States, 533 F. App'x

881, 884 (11th Cir. 2013). Petitioner is therefore in a similar

position to the petitioner in Brown:

As applied here, Brown did not establish

Strickland prejudice concerning his guilt

because he did not meet his burden of proving

that there was a reasonable probability that

the district court would have upheld any

objection or argument on whether attempted

robbery under § 2113(a) requires proof of

force and violence or intimidation. Indeed,

there is a lack of controlling authority on

the issue, and the majority of circuits that

have addressed the issue have not decided the

issue in Brown's favor. While a favorable

decision on the issue would likely have

precluded the jury from finding him guilty on

the § 2113(a) count, as the government did not

present any evidence that Brown actually used

force and violence or intimidation, Brown's

argument amounts to mere speculation that the

district court would have resolved the issue

favorably to him, and that is insufficient to

establish prejudice. See Strickland, 466 U.S.

at 694, 104 S. Ct. 2052.

Brown, 533 F. App’x at 884. Petitioner has not shown there was a

reasonable probability that the district court would have upheld

any objection or argument that attempted robbery under § 2113(a)

required proof of force and violence or intimidation, or that the

Eleventh Circuit would have so held on direct appeal.

Additionally, raising this issue on direct appeal would not

have accomplished anything for petitioner. The sentences imposed

on each of these three counts were imposed to run concurrently

with five other sentences which would not have been affected by

the issue. (Cr. Doc. #254, p.3.) Even if the issue had been

raised, and succeeded, petitioner’s sentence would have remained

the same.

The Court finds that the failure of appellate counsel to raise

this issue on direct appeal did not constitute deficient

performance and did not prejudice petitioner.

(2) Failure to Prove FDIC Insurance

Petitioner argues that the government failed to present

evidence that the banks were FDIC insured, which requires a new

trial. Petitioner admits that he stipulated with the government

that the financial institutions were FDIC insured, but asserts

that the government must present facts in addition to the

stipulated facts to prove this element. Petitioner asserts his

appellate attorney should have raised this issue on direct appeal,

but failed to do so. (Cv. Doc. #2, pp. 17-18; Cv. Doc. #10, p.

11.)

The government, all defendants, and all defense counsel

signed stipulations as to the insured status of the financial

institutions at the relevant times:

•

Exhibit 14 was a stipulation that Lee County Postal

Employees Credit Union was a FDIC insured financial

institution. (Cr. Doc. #295, p. 779.)

•

Exhibit 18 was a stipulation that Wells Fargo Bank was

a FDIC insured financial institution. (Id., pp. 162-

163.)

•

Exhibit 33 was a stipulation that Preferred Community

Bank was a FDIC insured financial institution. (Cr.

Doc. #296, pp. 276-277.)

•

Exhibit 91C was a stipulation that Capital Bank was a

FDIC insured financial institution. (Cr. Doc. #300, p.

109.)

•

Exhibit 100C was a stipulation that Fifth Third Bank was

a FDIC insured financial institution. (Id., pp. 220-

221.)

These stipulations constituted evidence that the banks and credit

union were FDIC insured, and as the Court instructed, there was

“no need for evidence by either side on that point.” (Cr. Doc.

#212, p. 8.) As stated in Christian Legal Soc. Chapter of the

Univ. of California, Hastings Coll. of the Law v. Martinez, 561

U.S. 661, 677–78 (2010):

Litigants . . . “are entitled to have their

case tried upon the assumption that . . .

facts, stipulated into the record, were

established.” . . . “This Court has

accordingly refused to consider a party’s

argument that contradicted a joint

“stipulation entered at the outset of the

litigation.” . . . But factual stipulations

are “formal concessions . . . that have the

effect of withdrawing a fact from issue and

dispensing wholly with the need for proof of

the fact. Thus, a judicial admission . . . is

conclusive in the case. [ ]

(citations omitted).

Appellate counsel would have raised a frivolous issue on

direct appeal if he had made the argument petitioner now asserts

was required. Since counsel is not required to raise frivolous

issues, petitioner has not established ineffective assistance of

counsel.

The Court finds that the failure of appellate counsel to raise

the FDIC issue on direct appeal did not constitute deficient

performance and did not prejudice petitioner.

(3) Search Warrant For Cell Phone

Petitioner argues that there has been an intervening change

in the law, holding that the police need a warrant to search a

cellular telephone found incident to a lawful arrest. See Riley

v. California, 573 U.S. 373 (2014). Petitioner asserts that when

he was arrested officers seized his cell phone from his vehicle

and searched the phone without a warrant. Petitioner argues that

his attorney should have briefed this issue on direct appeal.

(Cv. Doc. #2, pp. 18-19; Cv. Doc. #10, pp. 12.)

Riley was decided after petitioner filed his Notice of Appeal

(Cr. Doc. # 256) on May 1, 2013, but before the December 18, 2015

decision by the Eleventh Circuit (Cr. Doc. #328). Riley held that

generally the police may not search digital information on a

cellphone seized from an arrested individual without a warrant.

Riley, 573 U.S. at 386. The Supreme Court did not state explicitly

that the case was retroactively applicable to cases on collateral

review, Riley, 573 U.S. at 386, and some decisions have held it is

not. Young v. Pfeiffer, 933 F.3d 1123, 1125 (9th Cir. 2019); In

re Baker, 18-15095-C, 2019 WL 3822305, at *1 (11th Cir. Jan. 9,

2019).

The Court assumes, for the sake of argument, that Riley can

be raised for the first time in a § 2255 motion. During the trial,

Special Agent James Roncinske testified that Special Agent John

Kuchta obtained search warrants for two residences and four

vehicles for execution on October 7-8, 2011. (Cr. Doc. #301, pp.

25-26, 38.) Petitioner was arrested outside his residence at 2853

Lincoln Boulevard, one of the residences for which there was a

search warrant. (Id. at 32.) Petitioner’s cell phone,

Government’s Exhibit 123, was seized from his 2006 Nissan pursuant

to a search warrant, and given by Special Agent Roncinske to agent

Karen Cooper, who submitted it to her laboratory. (Id. at 88-

89.) The contents of the cell phone were later examined pursuant

to two search warrants, which are contained in Case Nos. 2:11-mj-

1148-SPC and 2:12-mj-1146-SPC, and the pertinent results were

testified to by Connie Bell (Cr. Doc. #302) at trial. Because the

contents of the cell phone were examined pursuant to a search

warrant, there was no violation of the principles later announced

in Riley.

The Court finds that the failure of appellate counsel to raise

on direct appeal the lack of a search warrant to search

petitioner’s cell phones did not constitute deficient performance

and did not prejudice petitioner.

E. Substantive Claim: Counts Four, Six and Eight

Petitioner makes one substantive argument not tied to any

assertion of ineffective assistance of counsel. Petitioner was

convicted in Counts Four, Six, and Eight of carrying and possessing

a firearm in furtherance of a bank robbery, in violation of 18

U.S.C. § 924(c)(1). In Ground Eleven, and in subsequent motions,

petitioner argues these convictions should be vacated because the

underlying bank robbery offenses are not “crimes of violence” as

required by § 924(c)(1). Petitioner relies upon Johnson v. United

States, 135 S. Ct. 2551 (2015), Dimaya v. Session, 138 S. Ct., 584

U.S. (2018), United States v. Davis, 139 S. Ct. 2319 (2019),

and other cases addressing the definition of “crime of violence”

or “violent felony.” (Cv. Doc. #2, pp. 19-22; Cv. Docs. #19; #35,

#36.)

The issue is whether, applying a categorical approach, bank

robbery is a crime of violence within the meaning of § 924(c)(1).

The Eleventh Circuit has held that it is. In re Hines, 824 F.3d

1334, 1337 (11th Cir. 2016). See also In re Sams, 830 F.3d 1234,

1239 (11th Cir. 2016) (“a bank robbery conviction under § 2113(a)

by force and violence or by intimidation qualifies as a crime of

violence under the § 924(c)(3)(A) use-of-force clause”).

Robberies under various statutes have been held to be crimes of

violence or violent felonies. See also United States v. Harvey,

18-13108, F. App’x , 2020 WL 398516, at *1 (11th Cir. Jan.

23, 2020)(attempted bank robbery is a crime of violence under §

924(c)(3)’s elements clause); United States v. Hanks, 18-14183,

2020 WL 132736, at *2 (11th Cir. Jan. 13, 2020); United States v.

St. Hubert, 909 F.3d 335, 345–51 (11th Cir. 2018)(Hobbs Act robbery

and attempted Hobbs Act robbery qualify as crimes of violence under

the elements clause of § 924(c), abrogated on other grounds by

Davis, 139 S. Ct. 2319); United States v. Fritts, 841 F.3d 937,

942–44 (11th Cir. 2016)(Florida armed robbery is categorically a

violent felony under the ACCA’s elements clause). United States v.

Joyner, 882 F.3d 1369, 1378–79 (11th Cir. 2018) (Florida attempted

robbery is categorically a violent felony under the ACCA’s elements

clause). Petitioner is not entitled to relief under Ground

Eleven, and petitioner’s motion is denied.

F. Evidentiary Hearing Standard

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). 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.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody (Cv. Doc. #1; Cr. Doc. #331) is DENIED.

2. The Clerk of the Court shall enter judgment accordingly

and close the civil file. The Clerk is further directed

to place a copy of the civil Judgment in the criminal

file.

3. The Clerk shall provide copies of the two search warrants

executed in Case Nos. 2:11-mj-1148-SPC and 2:12-mj-1146-

SPC to petitioner with the Opinion and Order and make a

notation that copies were sent.

4. Petitioner’s Motion to Grant Harrell Relief in Light of

Dimaya v Session (Cv. Doc. #19) is DENIED.

IT IS FURTHER ORDERED:

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)(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 at Fort Myers, Florida, this 10th day

of February, 2020.

NON Zé AKL

JGHH E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

Copies:

Petitioner

AUSA