Martinez v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MIGUEL ANGEL MARTINEZ,

Petitioner,

v. Case No: 2:19-cv-796-FtM-29NPM

Case No. 2:11-CR-40-FTM-29NPM

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.

#217)1 filed by counsel on November 5, 2019. The government filed

a Response in Opposition to Motion (Cv. Doc. #9) on February 6,

2020. The petitioner filed a Reply (Cv. Doc. #10) on February 28,

2020. For the reasons set forth below, the motion is denied.

I.

On March 30, 2011, a federal grand jury in Fort Myers, Florida

returned a ten-count Indictment (Cr. Doc. #1) against petitioner

Miguel Angel Martinez (petitioner or Martinez) and his co-

defendant Eddy Luis Jose Estrella (Estrella). Only Estrella was

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.”

charged in Counts One through Four, and Ten. Petitioner was

charged with the following offenses in the following counts:

•

Count Five: Conspiracy to obstruct, delay, and affect

commerce by robbery, in violation of 18 U.S.C. § 1951(a)

(Hobbs Act Conspiracy).

•

Count Six: Knowingly delaying and affecting commerce by

robbery of an undercover police officer, in violation

of 18 U.S.C. § 1951(a) (Hobbs Act Robbery).

•

Count Seven: Conspiracy to use and carry a firearm

during and in relation to a crime of violence, and to

possess the firearm in furtherance of the crime of

violence, the crime of violence being the Hobbs Act

Robbery alleged in Count Six, in violation of 18 U.S.C.

§ 924(o).

•

Count Eight: Knowingly using and carrying of a firearm

during and in relation to a crime of violence, and in

furtherance of a crime of violence, the crimes of

violence being the Hobbs Act Conspiracy charged in

Count Five and the Hobbs Act Robbery charged in Count

Six, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and

(c)(1)(C)(i), and 18 U.S.C. § 2.

•

Count Nine: Possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1).

The facts presented in the Presentence Report (Cr. Doc. #220,

pp. 5-7), to which petitioner did not object (Cr. Doc. #203, pp.

1

5-6) , described the underlying conduct as follows:

On a prior occasion, Estrella had sold an undercover police

officer a quantity of Oxycodone, and had discussed the officer

purchasing a firearm on a later occasion.

Estrella agreed to meet the officer again on January 27, 2011,

to sell Oxycodone and a firearm. Prior to the meeting, petitioner

and Estrella agreed and planned to rob the undercover officer at

gunpoint of drugs recently purchased from Estrella, and money the

undercover detective was bringing to purchase drugs and a firearm

from Estrella.

On January 27, 2011, Estrella met with the undercover officer

in the parking lot of a CVS store and sold him 15 Oxycodone 30 mg

pills for $210. During this meeting, the officer asked about the

firearm. Estrella stated that he did not have it, but he would

get another handgun from an apartment. Estrella asked the officer

to take a ride to get the handgun, but the officer declined and

said he would wait there instead. Estrella left the area, and he

and petitioner later returned to the CVS parking lot.

1

“[A] failure to object to allegations of fact in a PSI admits

those facts for sentencing purposes.” United States v. Wade, 458

F.3d 1273, 1277 (11th Cir. 2006).

Estrella walked towards the officer’s vehicle, entered the

passenger side, and showed the officer a handgun. Estrella

dropped out the magazine and locked the slide to show that the

firearm was empty. Estrella lowered the firearm to get the officer

to crouch to look at it while petitioner approached the vehicle on

the passenger side.

Petitioner knocked on the vehicle’s window and tried to open

the door, while Estrella attempted to convince the officer to find

out what petitioner wanted. The officer refused, and asked why

petitioner was even there. Feeling threatened, the officer put

the vehicle in reverse and attempted to back out. Estrella told

him to stop, and eventually Estrella slammed the vehicle into park

and opened the passenger door. Petitioner leaned towards the

officer, displayed a handgun and pointed it at the officer,

demanding the officer give him everything. The officer retrieved

four pre-recorded $100 bills from his pocket, and handed the money

to Estrella, who handed it to petitioner. The officer then gave

a verbal distress signal and the Lee County Sheriff’s Office moved

in for a takedown and rescue.

On July 14, 2011, petitioner entered guilty pleas to Counts

Five through Nine of the Indictment without the benefit of a plea

agreement. (Cr. Docs. #38, 42.) Petitioner’s guilty pleas were

accepted, and petitioner was adjudicated guilty on July 18, 2011.

(Cr. Doc. #40.)

On October 17, 2011, the Court sentenced petitioner to a term

of 60 months imprisonment as to Counts Five, Six, Seven, and Nine,

to be served concurrently to each other; a term of 84 months

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

terms imposed in Counts Five, Six, Seven, and Nine; and concurrent

terms of supervised release. (Cr. Doc. #76.) Judgment (Cr. Doc.

#81) was filed on October 17, 2011. No direct appeal was filed.

II.

Petitioner’s § 2255 Motion raises a single claim: The

conviction and sentence in Count Eight must be vacated in light of

the U.S. Supreme Court’s intervening decision in Davis v. United

States, 139 S. Ct. 2319 (2019). Davis held that the residual

clause in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague.

Petitioner asserts that his conviction on Count Eight was based on

the use of the residual clause, and that without the use of this

residual clause, he could not have been convicted of Count Eight.

(Cv. Doc. #1, p. 4.) Accordingly, petitioner argues, the district

court did not have the jurisdiction to convict or impose a sentence

on Count Eight. (Cv. Doc. #2, p. 2.) Petitioner also asserts

that, in light of Davis, Count Eight violated his Fifth and Sixth

Amendment rights. (Cv. Doc. #2, pp. 4-7.)

A.

In Count Eight, petitioner was charged with violation of 18

U.S.C. § 924(c)(1)(A)(ii). The pertinent portion of Section

924(c) provides:

(c)(1)(A) [A]ny person who, during and in

relation to any crime of violence or drug

trafficking crime (including a crime of

violence or drug trafficking crime that

provides for an enhanced punishment if

committed by the use of a deadly or dangerous

weapon or device) for which the person may be

prosecuted in a court of the United States,

uses or carries a firearm, or who, in

furtherance of any such crime, possesses a

firearm, shall, in addition to the punishment

provided for such crime of violence or drug

trafficking crime--

. . .

(ii) if the firearm is brandished, be

sentenced to a term of imprisonment of not

less than 7 years; and

18 U.S.C. § 924(c)(1)(A)(ii). A “crime of violence” is a felony

offense that:

(A) has as an element the use, attempted use,

or threatened use of physical force against

the person or property of another, or

(B) that by its nature, involves a substantial

risk that physical force against the person or

property of another may be used in the course

of committing the offense.

18 U.S.C. § 924(c)(3)(A), (B). Thus, a crime of violence under §

924(c) must either fall under the “elements clause” of (A) or the

“residual clause” of (B).

Count Eight provided in its entirety:

COUNT EIGHT

On or about January 27, 2011, in Lee County, in the Middle District of Florida,

EDDY LUIS JOSE ESTRELLA, and

MIGUEL ANGEL MARTINEZ,

defendants herein, aiding and abetting one another, did knowingly use and carry a

firearm, namely a Sig Sauer, 9mm semi-automatic pistol, model P6, serial number

M443126, and an American Arms, Inc., 22 caliber semi-automatic pistol, model PX22,

serial number 043325, during and in relation to a crime of violence for which they may

be prosecuted in a court of the United States, and did knowingly possess said firearm in

furtherance of said crime of violence, namely, Interference with Commerce by Robbery

and Conspiracy to Interfere with Commerce by Robbery, in violation of Title 18, United

States Code, Section 1951(a), as charged in Counts Five and Six of this Indictment,

which are incorporated by reference as though fully set forth herein.

In violation of Title 18, United States Code, Section 924(c)(1)(A)(ii), Section

(c)(1)(C)(i), and Section 2.

Thus, as petitioner recognizes (Cv. Doc. #2, pp. 2-3), Count Eight

alleged two “crimes of violence,” the Hobbs Act Conspiracy charged

in Count Five and the Hobbs Act Robbery charged in Count Six.

B.

It is the residual clause of § 924(c)(3)(B) that United States

v. Davis, 139 S. Ct. 2319 (2019) declared to be unconstitutionally

vague, extending the reasoning of Johnson v. United States, 135 S.

Ct. 2551, 2578 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204,

1216 (2018), which had addressed similar clauses in other statutes.

The Eleventh Circuit has found that Davis is a new substantive

constitutional rule which applies retroactively. In re Hammoud,

931 F.3d 1032 (11th Cir. 2019). Thus, to be valid, a § 924(c)

conviction must be predicated on a crime of violence as defined by

§ 924(c)(3)(A).

It is also clear that under current case law a Hobbs Act

conspiracy is not a “crime of violence” under the elements clause

of § 924(c)(3)(A). Brown v. United States, 942 F.3d 1069, 1075

(11th Cir. 2019). See also Hossain v. United States, No. 17-

13135, 2020 WL 1228672, at *1 (11th Cir. Mar. 13, 2020) (plea of

guilty predicated solely on conspiracy to commit Hobbs Act robbery

vacated); Escourse-Westbrook v. United States, 799 F. App'x 803

(11th Cir. 2020) (vacated and remanded because the crime of

violence was solely predicated on the Hobbs Act conspiracy); United

States v. Jenkins, 792 F. App'x 756, 758 (11th Cir. 2020) (same).

Thus, petitioner’s conviction of the Hobbs Act Conspiracy cannot

be a predicate crime of violence in Count Eight.

C.

Petitioner and the United States agree to these preliminary

matters in this case. Thus, there is no dispute that the residual

clause of § 924(c) is unconstitutional, that Davis applies

retroactively, that petitioner filed a timely § 2255 petition (at

least to the Davis claim(s)), that the Davis claim is cognizable

in this § 2255 petition, and that Hobbs Act Conspiracy is not a

crime of violence. After that, the parties part company.

III.

A.

Petitioner starts from the unassailable position that Davis

has found the residual clause in § 924(c)(3)(B) to be

unconstitutionally vague. From this, petitioner argues that the

conviction in Count Eight must be vacated because (1) his

conviction in Count Eight “may have been” based on the residual

clause, and (2) his substantive § 1951(a) offense conviction does

2

not qualify as a predicate offense. (Doc. #2, pp. 3-4).

(1) Petitioner’s Burden

Petitioner’s burden in this type of issue was set forth in

Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017).

Paraphrasing Beeman and extending it to a Davis claim, to prove a

Davis claim petitioner must establish that the residual clause

actually adversely affected the sentence he received, not simply

that it may have done so. Only if petitioner would not have

received an enhanced sentenced absent the existence of the residual

2

Petitioner recognizes that the Eleventh Circuit has held to the

contrary on both issues, but preserves the issues for further

appellate review. (Id. n.2).

clause is there a Davis violation. There is only a Davis violation

if the sentencing court relied solely on the residual clause, as

opposed to also or solely relying on the elements clause to qualify

a prior conviction as a crime of violence. Beeman, at 1221-22.

See also In re Cannon, 931 F.3d 1236, 1243 (11th Cir. 2019).

Petitioner argues, as did petitioner in Beeman, that he meets

his burden if it is merely possible that the Court relied on the

residual clause to enhance the sentence. Beeman rejected this

standard, holding that, like any other § 2255 movant, a Johnson

claimant

must show that—more likely than not—it was use

of the residual clause that led to the

sentencing court’s enhancement of his

sentence. If it is just as likely that the

sentencing court relied on the elements or

enumerated offenses clause, solely or as an

alternative basis for the enhancement, then

the movant has failed to show that his

enhancement was due to use of the residual

clause.

Id. at 1222. The same standard applies to petitioner’s Davis

claim.

(2) Hobbs Act Robbery as Crime of Violence

Petitioner is also incorrect in the argument that a

substantive Hobbs Act Robbery is not a crime of violence under §

924(c). In the Eleventh Circuit, Hobbs Act Robbery continues to

be a crime of violence under the elements clause of § 924(c).

In Davis, the Supreme Court held that §

924(c)’s residual clause was

unconstitutionally vague. 139 S. Ct. at 2336.

However, Hobbs Act robbery—the predicate crime

of violence for White’s § 924(c) convictions—

categorically qualifies as a crime of violence

under § 924(c)’s elements clause. See United

States v. St. Hubert, 909 F.3d 335, 344 (11th

Cir. 2018), abrogated on other grounds by

Davis, 139 S. Ct. 2319; see also In re Fleur,

824 F.3d 1337, 1340–41 (11th Cir. 2016). The

Davis court did not disturb § 924(c)’s

elements clause. See generally Davis, 139 S.

Ct. at 2323–36.

United States v. White, 19-12267, 2020 WL 2300433, at *1 (11th

3

Cir. May 8, 2020). Cf. United States v. Eason, 953 F.3d 1184,

1191 (11th Cir. 2020)(recognizing that Hobbs Act robbery satisfies

the elements clause in 18 U.S.C. § 924(c), but holding it does not

satisfy the requirements of U.S. Sentencing Guidelines Manual §

4B1.2(a)(1)).

B.

Petitioner nonetheless argues that in this case the Hobbs Act

Robbery conviction cannot be considered. This is so, petitioner

argues, because the identification of two crimes of violence in

Count Eight rendered the count duplicitous, the remedy for which

is that the court may only rely on the least culpable conviction,

i.e., the Hobbs Act Conspiracy. (Cr. Doc. #2, pp. 4-5.)

Additionally, petitioner argues that the duplicity resulted in a

miscarriage of justice and violated his Fifth and Sixth Amendment

3

Petitioner argues that the Eleventh Circuit cases are wrongly

decided, although recognizing they are binding on a district court.

(Cv. Doc. #2, p. 5 n.3.)

rights. Recognizing that the Eleventh Circuit has held that Hobbs

Act robbery is a crime of violence under the § 924(c) elements

clause, Petitioner asserts that there is a question as to which of

the two offenses the Court actually relied upon in this case.

(Id. p. 5.) The Court finds that none of these arguments have

merit.

The Court finds the recent discussion in an unpublished

Eleventh Circuit decision instructive:

Nesbitt contends that his § 924(c) conviction

is invalid because Count 3, upon which it

rests, is a “duplicitous count,” by which he

means “it charges two or more ‘separate and

distinct’ offenses.” See In re Gomez, 830 F.3d

1225 (11th Cir. 2016). After all, the

government could have charged two § 924(c)

counts, one predicated on the conspiracy and

one predicated on the substantive crime.

A duplicitous count poses several dangers,

including the risk that a “jury may convict a

defendant without unanimously agreeing on the

same offense.” Another risk, limited to cases

such as this one, is that the jury convicted

Nesbitt only because it unanimously agreed on

the predicate offense of conspiracy to commit

Hobbs Act robbery, which is not a crime of

violence and therefore not a proper predicate

offense.

The parties agree that the question of whether

Nesbitt’s § 924(c) conviction is valid is

analyzed under plain error review because

Nesbitt failed to raise the duplicity issue in

the district court at the time the error

occurred (including when the district court

instructed the jury that it could base its §

924(c) verdict on either Count 1 or Count 2).

See Fed. R. Crim. P. 52(b).

. . .

Even if the district court committed an error

“that is plain” by permitting two predicate

offenses to underly the § 924(c) charge,

Nesbitt cannot show that error affected his

substantial rights. To establish that the

error affected his substantial rights, he

would have to demonstrate “a reasonable

probability that, but for the error, the

outcome of the proceeding would have been

different.” Molina-Martinez v. United States,

––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.

Ed. 2d 444 (2016) (quotation marks omitted).

He has not, and cannot, do that.

The evidence is overwhelming that substantive

Hobbs Act robbery was a predicate offense for

Nesbitt’s § 924(c) count. Nesbitt does not

contest that he is guilty of substantive Hobbs

Act robbery. . . . Nesbitt offers no evidence

that had he contemporaneously objected to the

allegedly duplicitous count the outcome of the

proceeding would have been any different.

Had Nesbitt objected to the superseding

indictment and prevailed, he would have been

charged with two § 924(c) firearm counts: one

count would have had conspiracy to commit

Hobbs Act robbery as the predicate and the

other would have had substantive Hobbs Act

robbery as the predicate.

Nesbitt cannot show a reasonable probability

that he would not have been convicted of the

§ 924(c) count tied to substantive Hobbs Act

robbery, which would have left him in the same

place, guilty of one § 924(c) count. Had he

objected to the jury instructions, the outcome

also would have been the same. The judge would

have required the jury to unanimously agree on

the predicate offense, and the evidence is

clear the jury would have all agreed

substantive Hobbs Act robbery was a predicate

offense. In either scenario, no reasonable

probability of a different outcome exists.

Nesbitt’s counterarguments don’t convince us

otherwise. He argues that In re Gomez requires

us to assume that his § 924(c) offense rests

on the least culpable of the offenses alleged

to support the conviction, in this case

conspiracy to commit Hobbs Act robbery. 830

F.3d 1225 (11th Cir. 2016). But Gomez involved

an application for permission to file a second

or successive 28 U.S.C. § 2255 motion. Id. at

1226. In that scenario, all an applicant has

to do to obtain permission is make a prima

face showing that he satisfies the criteria of

§ 2255. See id. at 1229 (noting applicant has

only made “a prima facie showing that his

conviction may” be unlawful) (emphasis added)

(Carnes, J., concurring); In re Holladay, 331

F.3d 1169, 1173 (11th Cir. 2003) (applicant

need show only a “reasonable likelihood” of

success). But here the merits are before us,

so we can decide if substantive Hobbs Act

robbery supports Nesbitt’s § 924(c) conviction

— and it does.

Nesbitt cites Alleyne v. United States in

support. 570 U.S. 99, 133 S. Ct. 2151, 186

L.Ed.2d 314 (2013). In Alleyne the Supreme

Court held that factual findings that increase

the mandatory minimum sentence for any crime

are “elements [of the offense] and must be

submitted to the jury and found beyond a

reasonable doubt.” Id. at 103, 133 S. Ct.

2151. We have held that an “indictment that

lists multiple predicates in a single § 924(c)

count allows for a defendant’s mandatory

minimum to be increased without the unanimity

Alleyne required.” Gomez, 830 F.3d at 1227.

That is because some of the jurors might have

though Nesbitt used the gun during the

conspiracy to commit Hobbs Act robbery, while

the others thought he did so only during the

substantive Hobbs Act robbery. See id. So

Alleyne prohibits a judge from making the

factual determination about which predicate

offense supported the § 924(c) count when it

is not clear what the jury has decided. Id.

Alleyne does not help Nesbitt because the

district court did not make a factual

determination about which predicate offense

supported the § 924(c) count.

Nesbitt cites Alleyne and In re Gomez to argue

that we cannot conduct plain error review

because in order to determine if a reasonable

probability of a different outcome would

result, we would have to engage in prohibited

factfinding. So presumably, we should ignore

the requirements of the plain error rule and

conduct a full-on merits review. That is

wrong. Neither Alleyne nor In re Gomez bars us

from determining if “a reasonable probability

[exists] that, but for the error, the outcome

of the proceeding would have been different.”

Molina-Martinez, 136 S. Ct. at 1343; cf.

Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S.

Ct. 530, 172 L. Ed. 2d 388 (2008) (improperly

instructing the jury on multiple theories of

guilt, one of which is invalid, is not a

structural error and is subject to harmless

error review). That is not factfinding. It is

standard third-prong plain error review. And

once again, given the overwhelming evidence

that substantive Hobbs Act robbery supports

his § 924(c) conviction, Nesbitt cannot show

that a reasonable probability of a different

outcome exists.

United States v. Nesbitt, 18-11125, 2020 WL 1970519, at *3–5 (11th

Cir. Apr. 24, 2020)(footnotes omitted). In footnote 4, Nesbitt

stated:

Nesbitt also suggests that aiding and abetting

substantive Hobbs Act robbery is not a crime

of violence. It is. In re Colon, 826 F.3d 1301,

1305 (11th Cir. 2016) (concluding that aiding

and abetting substantive Hobbs Act robbery is

a crime of violence under the elements clause

and thus supports an aiding and abetting §

924(c) firearm charge). Nesbitt also argues

that substantive Hobbs Act robbery is not a

crime of violence if a person is convicted

under a theory of Pinkerton liability. See

Pinkerton v. United States, 328 U.S. 640, 647–

48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946)

(holding that criminal defendants are liable

for the reasonably foreseeable actions of

their co-conspirators). But that argument is

not relevant because the evidence is

overwhelming that Nesbitt’s guilt was not

dependent on Pinkerton liability; he did not

dispute in this trial or during his last

direct appeal that he robbed the restaurant

and carried a firearm while doing so. See

United States v. Gallo-Chamorro, 48 F.3d 502,

506–508 (11th Cir. 1995) (discussing aiding

and abetting versus Pinkerton liability and

noting that aiding and abetting “has a broader

application” and “rests on a broader base”

than Pinkerton liability) (quoting Nye &

Nissen v. United States, 336 U.S. 613, 620, 69

S. Ct. 766, 93 L. Ed. 919 (1949)).

United States v. Nesbitt, 18-11125, 2020 WL 1970519, at *5 n.4

(11th Cir. Apr. 24, 2020).

Petitioner’s case is far less compelling than was Nesbitt’s.

There is no doubt that the fact-finder found that petitioner was

guilty of the Hobbs Act Robbery – petitioner’s guilt of that

offense was established by petitioner’s own words in a guilty plea

proceeding. The magistrate judge recommended acceptance of the

pleas, including the Hobbes Act Robbery count and Count Eight (Cr.

Doc. #39), and the district court accepted the recommendation and

adjudicated petitioner guilty (Cr. Doc. #40.) No prohibited

judicial fact-finding is required, since a Court in the guilty

plea context is required to make such a factual finding. Fed. R.

Crim. P. 11(b)(3).

Generally, where the government charges crimes in the

conjunctive, as was done in Count Eight, it is only required to

prove one such crime. United States v. Simpson, 228 F.3d 1294,

1300 (11th Cir. 2000) (“[W]here an indictment charges in the

conjunctive several means of violating a statute, a conviction may

be obtained on proof of only one of the means, and accordingly the

jury instruction may properly be framed in the disjunctive.”).

Even though the district court relied on both the Hobbs Act

Conspiracy and the Hobbs Act Robbery in Count Eight, there was no

violation of petitioner’s constitutional or statutory rights as

long as it is clear that one of the offenses qualified as a §

924(c) crime of violence. Where the guilty plea is predicated

both on a conspiracy to commit Hobbs Act robbery and a second

qualifying predicate offense, petitioner is not entitled to

relief. In re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019)

(Section “924(c) requires only that the predicate crime be one

that may be prosecuted”). See also In re Pollard, 931 F.3d 1318,

1321 (11th Cir. 2019)(“If the companion crime for which an

applicant was convicted qualifies as a crime of violence under §

924(c)(3)(A)’s use-of-force clause, that applicant cannot show

that there is a ‘reasonable likelihood’ that he will benefit from

the rule announced in Davis.”)

Unlike Cannon, where it was unclear if the jury also concluded

that the firearm was in furtherance of the underlying drug and

carjacking predicates along with the use of the firearm during a

Hobbs Act conspiracy, in this case it is not even “somewhat unclear

which crime or crimes served as the predicate offense for Cannon’s

§ 924(o) conviction.” In re Cannon, 931 F.3d 1236, 1243 (11th

Cir. 2019). There is no reason to presume the Hobbs Act

Conspiracy, as the least culpable offense, was the only predicate

conviction based on the record in this case. Additionally, the

“least culpable offense” rule does not apply in this case. The

Eleventh Circuit “has only applied the ‘least culpable offense’

rule when determining whether an offense qualifies as a crime of

violence, not when determining which crime of violence underlies

a defendant’s § 924(c) conviction.” Calderon v. United States,

No. 18-11615, F. App’x , 2020 WL 1921930, at *4 (11th Cir.

Apr. 21, 2020) (per curiam). Since this case involved a plea

rather than a jury trial, the same Sixth Amendment concerns are

not present. Id.

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. #217) 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.

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 ist day of

June, 2020.

if aw (OL

: | hy >» ZAK Loeb

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Petitioner

AUSA