# Ductant v. United States

> District Court, M.D. Florida · February 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10104594

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104594

## How later opinions describe it (automated extraction)

- stating courts must look to the facts at the time of counsel’s conduct
- stating there is no Sixth Amendment right to counsel in post-conviction collateral proceedings

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

NEHEME DUCTANT,

Petitioner,

v. Case No.: 2:16-cv-748-FtM-29NPM
Case No.: 2:11-cr-00097-FTM-29NPM

UNITED STATES OF AMERICA,

Respondent.
/
OPINION AND ORDER
This matter comes before the Court upon Petitioner Neheme
Ductant’s (Petitioner or Ductant) pro se Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (Cr. Doc. #685; Cv. Doc. #1)1 and a Memorandum in
Support (Cr. Doc. #686; Cv. Doc. #2), both filed on October 3,
2016. The government filed a Response in Opposition (Cv. Doc. #8)
on November 30, 2016, to which Petitioner filed a Response,
Affidavit, and an Affidavit by his sister, Charice Vanessa Ductant,
(Cv. Docs. #8; #11; #11-1; #11-2) on January 23, 2017. Petitioner
raises two claims of ineffective assistance of counsel concerning
the lack of plea negotiations with the government. For the reasons
set forth below, Ductant’s § 2255 motion is denied.

1 The Court will refer to the underlying criminal docket, 2:11-cr-
00097-JES-NPM-2, as “Cr. Doc.,” and will refer to the civil docket
as “Cv. Doc.”
I.
On September 28, 2011, a federal grand jury in Fort Myers,
Florida returned a twelve-count Indictment (Cr. Doc. #3) charging

Petitioner and nine co-defendants with various drug offenses.
Count One charged that from about July 2010 through the date of
the Indictment Petitioner and nine others conspired to
manufacture, possess with intent to distribute, and distribute 28
grams or more of cocaine base, also known as crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) and 846. (Id.,
pp. 1-2). Petitioner was also charged in Count Two with knowing
and willful distribution of an unspecified quantity of crack
cocaine on or about August 27, 2010, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). (Id., p. 2).
Petitioner was arrested on October 20, 2011, in Gainesville,
Florida and made his initial appearance in the United States

District Court for the Northern District of Florida, Gainesville
Division that same day. (Cr. Docs. #48; #64). Petitioner
temporarily waived a detention hearing and was removed to the Fort
Myers Division of the Middle District of Florida. (Id.) On
November 15, 2011, Petitioner was arraigned on the Indictment in
Fort Myers, Florida. The Court appointed attorney Alan Kaufman
(“Mr. Kaufman”) to represent Petitioner. (Cr. Doc. #71).
Petitioner pled not guilty to Counts One and Two of the Indictment,
and an Order of detention was entered. (Cr. Docs. #71, 80).
On August 9, 2012, a federal grand jury returned a Superseding
Indictment. (Cr. Doc. #249.) Count One charged Petitioner and
six others with conspiracy to manufacture, possess with intent to

distribute, and distribute 280 grams or more of cocaine base, also
known as crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii) and 846. (Id., pp. 1-2). The amended Count One
expanded the time frame for the conspiracy to in or about 2009
through in or about October, 2012, increased the amount of crack
cocaine charged from 28 grams to 280 grams or more, and removed
three of the initial ten co-conspirators.2 No changes were made
to Count Two, which continued to charge Ductant with knowing and
willful distribution of an unspecified quantity of crack cocaine
on or about August 27, 2010 in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). (Id., p. 2). Ductant pled not guilty to the
Superseding Indictment at an arraignment on August 13, 2012. (Cr.

Doc. #258).
On August 21, 2012, the government moved to correct various
clerical errors in the Superseding Indictment, including the
ending date of the conspiracy in Count One. (Cr. Doc. #268).
Petitioner and other defendants filed objections to the motion.
(Cr. Docs. #278-81).

2 The three co-conspirators who were not named in the Superseding
Indictment had agreed to plead guilty to various counts of the
original Indictment, as discussed in more detail later.
On September 5, 2012, a federal grand jury returned a Second
Superseding Indictment which made the corrections the government
had previously sought to make by motion. (Cr. Doc. #282). Ductant

pled not guilty to the Second Superseding Indictment on September
10, 2012. (Cr. Doc. #296).
The Court conducted an eleven-day jury trial. The Court
adopts the factual summary of the trial evidence as set forth by
the Eleventh Circuit Court of Appeals. (Cr. Doc. #627, pp. 2-11.)
On October 5, 2012, the jury returned verdicts finding Ductant
guilty of Counts One and Two. (Cr. Doc. #383, pp. 2, 4). As to
Count One, the jury found that the amount of cocaine base involved
in the conspiracy was more than 280 grams. (Id., p. 3). Petitioner
filed a Motion For Judgment of Acquittal Notwithstanding the
Verdict or in the Alternative, for a New Trial (Cr. Doc. #387),
which the Court denied on October 31, 2012. (Cr. Doc. #409).

The Court granted Petitioner’s motions to continue the
sentencing hearing and to extend the time to file objections to
the Presentence Report. (Cr. Docs. # 432-36). On February 15,
2013, defense counsel filed Objections to Pre-Sentence
Investigation Report (Cr. Doc. #464); on March 20, 2013, defense
counsel filed a Motion for Downward Departure Based on Inadequacy
of Criminal History Category, Sentencing Guideline § 4A1.3(b) (Cr.
Doc. #478); and on March 23, 2013, defense counsel filed a
Sentencing Memorandum requesting a sentence of 15 years
imprisonment. (Cr. Doc. #479).
On March 25, 2013, the Court sentenced Ductant to a term of

292 months imprisonment as to Count One and 240 months imprisonment
as to Count Two, to be served concurrently with each other and
with Ductant’s then-pending state court case in Palm Beach County,
Florida (Case No. 07-MM-9156). (Cr. Docs. #480, #483, p. 2). The
undersigned also imposed a term of 60 months supervised release as
to Count One and 36 months of supervised release as to Count Two,
to be served concurrently. (Id., p. 3).
Ductant filed a Notice of Appeal on March 31, 2013. (Cr.
Doc. #486). Mr. Kaufman continued to represent Ductant on direct
appeal, raising the following five issues: (1) petitioner was
denied the right to a fair trial based upon the dismissal of Juror
No. 8; (2) the District Court erred by failing to make an

individual finding as to the foreseeable drug quantity
attributable to petitioner at sentencing; (3) the District Court
erred by denying petitioner’s motion to suppress the interception
of wire communication because the government failed to meet its
burden of proving “necessity” under 18 U.S.C. § 2518(1)(c); (4)
the District Court erred in granting the government’s motion to
prohibit Ductant from impeaching Detective Jennifer Torres at
trial; and (5) petitioner’s sentence was unreasonable given the
factors in 18 U.S.C. § 3553(a). (See Appellant’s Br., United
States v. Hyppolite, 13-10471 (11th Cir. Nov. 25, 2013)). On June
25, 2015, the Eleventh Circuit affirmed Petitioner’s convictions
and sentences. See United States v. Hyppolite, 609 F. App’x 597

(11th Cir. 2015). Thereafter, Ductant petitioned for a writ of
certiorari, which the Supreme Court of the United States denied on
November 5, 2015. See Ductant v. United States, 136 S. Ct. 426
(2015).
On July 16, 2015, Ductant filed a motion to reduce his
sentence pursuant to Amendment 782 of the United States Sentencing
Guidelines. (Cr. Doc. #629). The United States Probation Office
filed a Memorandum which found Petitioner eligible for such a
reduction and recalculated the Sentencing Guidelines range (Cr.
Doc. #634), which the Court adopted. (Cr. Doc. #693). Ductant’s
Total Offense Level was reduced by two levels, which resulted in
a Guidelines’ range of 262 to 327 months. (Id., p. 3). The Court

granted Ductant’s motion and reduced his term of imprisonment under
Count One to 262 months, or time served, whichever was greater, to
be served concurrently with his sentence in Count Two and his
sentence in the Palm Beach County case. (Id., pp. 3-4).
Ductant now seeks relief pursuant to 28 U.S.C. § 2255, raising
claims of ineffective assistance of his trial counsel. The
government concedes that Ductant has timely filed his § 2255 motion
(Cv. Doc. #8, p. 4), and the Court agrees.
II.
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).
While “there is no constitutional right to plea bargain,”

Weatherford v. Bursey, 429 U.S. 545, 561 (1977), the Sixth
Amendment’s guarantee of effective assistance of counsel extends
to the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156,
162 (2012). Generally, defense counsel has a duty to communicate
formal offers from the prosecution of a plea with terms and
conditions that may be favorable to the accused, and failure to do
so is deficient performance. See Missouri v. Frye, 566 U.S. 134,
145 (2012). If there is deficient performance, and the prejudice
alleged is that defendant proceeded to trial instead of pleading
guilty, a criminal defendant must show a reasonable probability
that, but for his counsel’s errors: (1) a plea offer would have
been presented to the court (i.e., accepted by the government and

defendant); (2) the court would have accepted it; and (3) the
defendant’s conviction, sentence, or both would have been less
severe under the offer’s terms than it was under the judgment and
sentence that he actually received. Lafler, 566 U.S. at 163-64;
Frye, 566 U.S. at 149-50.
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). A district court is not required
to hold an evidentiary hearing where the petitioner’s allegations
are patently frivolous, based upon unsupported generalizations, or
affirmatively contradicted by the record. Aron v. United States,

291 F.3d 708, 714-15 (11th Cir. 2002) (citation omitted). To
establish entitlement to an evidentiary hearing on a claim of
ineffective assistance of counsel, 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).
III.
A. Ineffective Assistance of Counsel Claims

(1) Plea Agreement to Original Indictment
Petitioner asserts that his attorney provided ineffective
assistance of counsel by not consulting with him or initiating
plea negotiations with the government while the original
Indictment was pending. Petitioner asserts that “at no time during
the pendency of the first indictment some 11 months that he was
never presented or consulted concerning a plea offer.” (Cv. Doc.
#2, p. 6.) Additionally, Petitioner asserts “[c]ounsel never
inquired from the Petitioner his feelings concerning a plea given
the overwhelming evidence that the Government was proffering
concerning his guilt of the charges levied against him” and “never
addressed a plea offer” with Petitioner. (Id.) Petitioner
asserts this was unreasonable conduct which was prejudicial to him

because the statutory penalties were less for the conspiracy
charged in the original Indictment than for the conspiracy charged
in the Superseding Indictment and he received more prison time
compared to what he would have received had he pled guilty to the
original Indictment. (Cv. Doc. #2, pp. 3-7). The Court accepts,
for purposes of this motion, Petitioner’s factual assertions that
he questioned his attorney about the amount of prison time he was
facing and the evidence against him, but “no plea was ever
presented, advised, or sought based on counsels [sic] actions.”
(Cv. Doc. #2, pp. 6-7.)
Petitioner faced the charges in the original Indictment (Cr.

Doc. #3) for almost ten months, from the date of his arrest on
October 20, 2011, until the Indictment was superseded on August 9,
2012. Mr. Kaufman was appointed to represent Petitioner on
November 15, 2011, after Petitioner was returned to the Middle
District of Florida, so counsel was involved in the case for less
than nine months before the original Indictment was superseded.
Petitioner is correct that the statutory imprisonment penalty
for the conspiracy count was lower in the original Indictment than
in the Superseding Indictment. Count One of the original
Indictment charged a conspiracy involving 28 grams or more of crack
cocaine, and therefore carried a maximum statutory penalty of a
mandatory minimum of 5 years imprisonment to a maximum of 40 years

imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii). Count Two charged
distribution of an unspecified amount of crack cocaine, and
therefore carried no mandatory minimum sentence and a maximum
sentence of 20 years imprisonment. 21 U.S.C. § 841(b)(1)(C). The
Superseding Indictment (Cr. Doc. #249) did not change Count Two,
but amended Count One to allege, inter alia, that the conspiracy
involved 280 grams or more of crack cocaine. This resulted in a
mandatory minimum sentence of 10 years imprisonment up to life
imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii).
It is undisputed that at no time during the proceedings,
including the time frame when the original Indictment was pending,
did the government make a plea offer to Petitioner. (Cv. Docs.

#8, p. 10; #11, p. 2). The United States Supreme Court has long
recognized that “there is no constitutional right to plea bargain;
the prosecutor need not do so if he prefers to go to trial.”
Weatherford, 429 U.S. at 561; see also Frye, 566 U.S. at 148;
Lafler, 566 U.S. at 168. By all accounts, that is what the
government did regarding petitioner in this case. “[A] defendant
has no right to be offered a plea[.]” Missouri v. Frye, 566 U.S.
134, 148 (2012) (citing Weatherford v. Bursey, 429 U.S. 545, 561
(1977)). Thus, the government’s decision did not violate any of
Petitioner’s rights or render his attorney ineffective.
Petitioner argues, however, that his attorney’s performance
was deficient because he failed to initiate plea negotiations with

the government during the pre-Superseding Indictment time frame.
The record demonstrates that Mr. Kaufman’s representation of
Petitioner before the return of the Superseding Indictment was
clearly reasonable even if there was no discussion of a plea
agreement.
After Mr. Kaufman was appointed on November 15, 2011, he
received a great deal of discovery from the government, including
over 900 pages of documents, videos, jail telephone call
recordings, electronic intercept records, and search warrants.
(Cr. Doc. #85-1.) On February 3, 2012, Mr. Kaufman filed a major
motion to suppress electronic interceptions (Cr. Doc. #118), for
which there was extensive briefing and an evidentiary hearing

before the magistrate judge on March 7 and 8, 2012. (Cr. Docs.
#191-92). Mr. Kaufman also filed objections to the resulting
Report and Recommendation. (Cr. Docs. #207.) The District Court
ultimately adopted the Report and Recommendation and denied the
motion to suppress (Cr. Doc. #222) on May 15, 2012. On August 6,
2012, Mr. Kaufman petitioned the Court for extra investigative
resources, stating he had retained a private investigator who had
exhausted the amount of funds available, and that additional funds
for the services of an investigator was essential given the scope
of the case. (Cr. Doc. #244). This motion was granted on August
8, 2012. (Cr. Doc. #245). The Superseding Indictment was filed
on August 9, 2012. (Cr. Doc. #249).

Petitioner only makes a conclusory statement that “the
Government and the Petitioner could have resolved this case to
their satisfaction . . .” (Cv. Doc. #2, pp. 7-8), but never states
what plea bargain he would have accepted. The record is undisputed
that the government never made a plea offer to Petitioner, and the
government’s offers to co-defendants demonstrate the type of
agreement petitioner has never suggested he was willing to accept.
While the proceedings with Mr. Kaufman were taking place in
court, three of the defendants reached plea agreements with the
government to plead guilty to charges in the original Indictment.
The record establishes, however, that no defendant was allowed a
plea agreement as lenient as Petitioner implies his attorney should

have solicited and obtained for him.
Defendants Jennifer Nicole Sander (Sander), Rashid Francois
(Francois), and Michael Dupin (Dupin) entered into plea agreements
relating to charges in the original Indictment. All of these
defendants pled guilty to all counts in which they were charged,
and all had their statutory sentences enhanced if they qualified
under the statute.
Sander pled guilty to both the conspiracy count and to one
substantive count of the original Indictment, which were the only
counts in which she was charged. (Cr. Docs. #196, 219-21). The
government filed a Notice under 21 U.S.C. § 851 based upon Sander’s
prior felony drug convictions (Cr. Doc. #198), which increased the

statutory penalties for the conspiracy to a mandatory ten years
imprisonment to life imprisonment, and thirty years imprisonment
for the substantive offense. Sander’s Plea Agreement required her
to cooperate with the government and to testify at trial, which
she did. (Cr. Doc. #491).
Francois was already serving a state sentence, and pled guilty
to the conspiracy charged in Count One of the original Indictment
(Cr. Docs. #229-32), the only count in which he was charged. The
government also filed a Notice under 21 U.S.C. § 851 based upon
his prior felony drug convictions (Cr. Doc. # 203), which increased
the statutory penalties for the conspiracy to a mandatory ten years
imprisonment to life imprisonment.

Dupin was required to sign a cooperation Plea Agreement and
pled guilty to the conspiracy charge and one substantive count
(Cr. Docs. #247, 265, 269), the only counts in which he was named.
The statutory penalties for the conspiracy to a mandatory five
years imprisonment to forty years imprisonment, and twenty years
imprisonment for the substantive offense. Dupin testified as a
government witness at trial. (Cr. Doc. #496).
Petitioner was not in a similar situation to any of these
defendants. Petitioner was not already serving a state prison
term, like Francois. Petitioner has never asserted he was willing
to cooperate with the government and testify at trial, like Sander
and Dupin. Indeed, Petitioner has never stated just what plea

agreement he believes his attorney was constitutionally required
to solicit or obtain, or that he would have pled to any agreement
consistent with those offered other defendants in the pre-
Superseding Indictment stage.
It is exclusively a criminal defendant’s decision about
whether he will go to trial or accept a plea offer. Petitioner
has equivocated on whether he would have pled guilty. At one
point, Petitioner says he never desired to go to trial and
requested counsel’s efforts to obtain a plea deal. (Cv. Doc. #11-
1, p. 3). Then, Petitioner states he “enquired [sic] into a
plea[,]” and “requested counsel Alan Kaufman consider a plea.”
(emphasis added). (Cv. Docs. #11, p. 4; #11-1, p. 3). Petitioner

has not shown a reasonable probability that he would have entered
into a plea agreement if one had been solicited by his attorney
and offered by the government. See Rosin v. United States, 786
F.3d 873, 878 (11th Cir. 2015)(“Thus, because Rosin did not allege
that he would have accepted a guilty plea and abstained from
proceeding to trial but for the alleged errors of his trial
counsel, Rosin has failed to show that the alleged errors
prejudiced him.”)
Petitioner also claims that, given the overwhelming evidence
against him, trial counsel should have advised him to plead guilty
to the initial Indictment. (Cv. Doc. #2, pp. 6-7). Because it is
undisputed that the government did not extend a plea offer to

Ductant, this appears to be a claim that counsel was required to
advise Petitioner to plead guilty to both counts without a plea
agreement. As the record demonstrates, Mr. Kaufman was still
challenging the evidence and obtaining an investigator to further
review the evidence when the Superseding Indictment was filed.
The failure to advise a plea to both counts at that time was
reasonable.
Even assuming defense counsel performed deficiently, the
Court finds Ductant has failed to show prejudice. “To establish
prejudice based on ineffective assistance in deciding whether to
plead guilty or go to trial, a defendant must show that there is
a reasonable probability that, but for counsel’s errors, he would

. . . have pleaded guilty and would [not] have insisted on going
to trial.” Pericles v. United States, 567 F. App’x 776, 781-82
(11th Cir. 2014) (internal citation and quotation marks omitted).
Petitioner has not demonstrated prejudice because he has not shown
a reasonable probability he would have entered a guilty plea if
counsel had advised him to plead guilty to the Indictment without
the benefit of a plea agreement. Petitioner’s “after the fact
testimony concerning his desire to plead, without more, is
insufficient to establish that but for counsel’s alleged advice or
inaction, he would have” entered a straight plea without the
benefit a plea agreement. Diaz v. United States, 930 F.2d 832,
835 (11th Cir. 1991) (citation omitted) (rejecting defendant’s

claim he would have accepted a plea agreement when he had indicated
no desire to plead guilty before his conviction). Petitioner’s
Presentence Investigation Report indicates Ductant had not
demonstrated acceptance of responsibility at the time of
sentencing, which is available even when there has been a trial.
(Presentence Investigation Report, p. 13).
At most, Petitioner now implies he is culpable for the
distribution charge under Count Two. (Cv. Doc. #2, p. 7).
Petitioner does not, however, assert that he is responsible for
the conduct charged in Count One. Indeed, petitioner articulated
his strategic goal was to avoid conviction of Count One. Thus, it
was not unreasonable for counsel to fail to advise a partial plea.

Considering all the above, the Court does not find there is a
reasonable probability that, even if counsel performance was
deficient, petitioner would have pleaded guilty and would have
insisted on not going to trial.
(2) Affirmative Mis-Information About Superseding
Indictment Plea

Petitioner asserts counsel also provided ineffective
assistance after the filing of the Superseding Indictment.
Petitioner asserts that counsel affirmatively misadvised him by
saying that he could not plead guilty to Count Two of the
Superseding Indictment and thereby remove the testimony of the
undercover police officer, the only credible witness who bought
crack cocaine from him. Petitioner also suggests that counsel
should have advised him to plead guilty to both counts, since that
would have left the government without record support for the
enhancements which were utilized and resulted in a Sentencing
Guidelines reduction for acceptance of responsibility. (Cv. Docs.
#1, p. 5; #2, pp. 8-11).
Because the government did not extend an offer to Petitioner,
a guilty plea to Count Two would have continued to result in a
trial as to Count One. Since the crack cocaine transaction in
Count Two was probative of petitioner’s involvement in the Count
One conspiracy offense, a guilty plea to Count Two would not have
precluded the officer from testifying. Indeed, petitioner’s

admission of guilt would have itself been admissible as to the
conspiracy offense.
Additionally, as noted above, petitioner never stated he
would have pled guilty to Count One. Petitioner has not accepted
any responsibility for his conduct under Count One, which would
have made it unlikely this Court would have exercised its
discretion to apply a reduction in acceptance of responsibility
under U.S.S.G. § 3E1.1(a). The record does not reflect that
Petitioner would have pled guilty to the Superseding Indictment
without a plea agreement.
As to the sentencing enhancements, they would have been
applicable whether Petitioner pled guilty or went to trial.

Petitioner was given a role enhancement and a maintaining a drug
premise enhancement after testimony of a witness at the sentencing
hearing. (Cr. Doc. #504, pp. 23-25.) In light of the above, the
Court finds Ductant fails to set forth a Strickland claim.
B. Evidentiary Hearing and the Appointment of Counsel
The Court finds that the record establishes that Petitioner
is not entitled to relief and, therefore, an evidentiary hearing
is not required. Because Petitioner’s motion for an evidentiary
hearing is denied, appointment of counsel is not required under
Rule 8(c), Rules Governing Section 2255 Proceedings for the United
States District Court. Petitioner is not otherwise entitled to
appointment of counsel in this case. See Barbour v. Haley, 471

F.3d 1222, 1227 (11th Cir. 2006) (stating there is no Sixth
Amendment right to counsel in post-conviction collateral
proceedings); see also Schultz v. Wainwright, 701 F.2d 900, 901
(11th Cir. 1983) (“Counsel must be appointed for an indigent
federal habeas Petitioner only when the interest of justice or due
process so require.”). Neither the interest of justice nor due
process requires the appointment of counsel here.
Accordingly, it is now
ORDERED:
1. Petitioner Neheme Ductant’s Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence by a Person
in Federal Custody (Cr. Doc. #685; Cv. Doc. #1) 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.
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED. A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009). “A [COA] may issue .. . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(¢c)(B)(2). To make such
a showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (citations omitted). Petitioner has not made the
requisite showing in these circumstances. Finally, because
Petitioner is not entitled to a certificate of appealability, he
is not entitled to appeal in forma pauperis.
DONE and ORDERED in Fort Myers, Florida this 21st day of
February, 2020.

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SHNIOR UNITED STATES DISTRICT JUDGE

C: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104594. Public record. Not legal advice.