Nelson v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JON CRAIG NELSON,

Petitioner,

v. Case No. 8:19-cv-1335-MSS-AEP

Case No.: 8:14-cr-58-MSS-AEP

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

This cause comes before the Court on Petitioner Jon Craig Nelson’s pro se Motion

under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Docs. 7–9)

The United States responded in opposition, and Nelson replied. (Civ. Docs. 16 and 18) For

the reasons stated herein, Nelson is not entitled to relief.

I. Background

Following a 15-day trial, a jury convicted Nelson of (1) conspiracy to commit mail and

wire fraud in violation of 18 U.S.C. § 371, (2) conspiracy to commit money laundering in

violation of 18 U.S.C. § 1956(h), (3) four counts of mail fraud in violation of 18 U.S.C. §§

1341 and 2, and (4) four counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2. Nelson

was sentenced to 96 months’ imprisonment.

Nelson appealed, challenging the sufficiency of the evidence. The circuit court rejected

the challenges and affirmed Nelson’s convictions. United States v. Nelson, 884 F.3d 1103, 1110

(11th Cir. 2018). The circuit court set forth the facts of this case as follows:

In 2011 [co-defendant Michael Skillern] and Nelson started a company

called Own Gold LLC for the purpose of mining, processing, and

selling gold. Own Gold’s website and marketing materials represented

that it was a “gold producer” with mining claims worth some $81

billion. For the next two years Own Gold used a telemarketing firm

to execute contracts with hundreds of people who believed that they

were actually buying gold. Those contracts specified the amounts of

gold purchased and prices, and represented that customers could

retrieve their gold ore “at any time after the execution and payment of

consideration” by “appear[ing] in person” at the mining site.

Otherwise, Own Gold had 360 days to deliver the gold; if it failed to

do so, it would refund the purchase price. All told, Own Gold accepted

441 orders and collected more than $7.3 million from customers.

As it turns out, Own Gold’s representations about its gold production

were, well, misrepresentations. From its inception in 2011 until it

stopped executing sales contracts with customers in 2014, Own Gold

appears to have produced less than six ounces of gold from its own

mining operations. In light of its near-total failure to produce any gold

from its own mines, Own Gold resorted to trying to fulfill customers’

orders by purchasing gold from third parties. Even so, despite taking

orders for 5,912 ounces of gold and accepting more than $7.3 million

from its 351 customers, Own Gold ultimately delivered a mere 150

ounces—valued at $241,000—to 20 customers. Own Gold refunded

only $35,022 to four customers; none of the other orders was either

fulfilled or refunded. Meanwhile, Skillern collected approximately

$488,000, Nelson bagged about $300,000, and Own Gold’s

telemarketing firm netted a whopping $5.1 million over a two-year

period.

II. Discussion

Nelson now moves to vacate his convictions and sentence, asserting seven grounds of

ineffective assistance of both trial and appellate counsel. The United States concedes that

Nelson’s Section 2255 motion is timely and that his claims are cognizable.

To succeed on an ineffective assistance of counsel claim, a petitioner must show that

his counsel’s performance was deficient and that the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When evaluating performance,

the district court must apply a “strong presumption” that counsel has “rendered adequate

assistance and [has] made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 690.

The test has nothing to do with what the best lawyers would have done.

Nor is the test even what most good lawyers would have done. We

ask only whether some reasonable lawyer at the trial could have acted,

in the circumstances, as defense counsel acted at trial. . . . We are not

interested in grading lawyers’ performances; we are interested in

whether the adversarial process at trial, in fact, worked adequately.

Waters v. Thomas, 46 F.3d 1506, 1512 (11th Ci. 1995) (en banc) (citations omitted).

To establish deficient performance, a petitioner must show that “no competent counsel

would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d

1305, 1315 (11th Cir. 2000). “Judicial scrutiny of counsel’s performance must be highly

deferential,” and “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that . . . the challenged action might be considered sound trial

strategy.” Strickland, 466 U.S. at 689 (citations omitted). Indeed, “it does not follow that any

counsel who takes an approach [the court] would not have chosen is guilty of rendering

ineffective assistance.” Waters, 46 F.3d at 1522.

A petitioner demonstrates prejudice only when he establishes “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. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. Courts “are free to dispose of

ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 F.3d 1018, 1023

(11th Cir. 2004).

A. Ground One: Whether counsel was ineffective for failing to seek dismissal

of the wire and mail fraud counts

1. Wire Fraud

Nelson asserts that counsel was ineffective for failing to move to dismiss the wire fraud

counts. Counts 7 through 10 charged that Nelson and others engaged in a scheme to defraud

and to obtain money and property by means of materially false and fraudulent pretenses,

representations, and promises, in violation of 18 U.S.C. §§ 1343 and 2. The scheme was

executed by wire transfers on different dates between Own Gold’s bank accounts in Houston,

Texas, to bank accounts held by co-conspirator Naadir Cassim in Orlando, Florida. Crim.

Doc. 1 at 26–28.

Nelson contends that the wire fraud charges should have been dismissed because no

wire transmissions traveled directly from Houston to Orlando, as alleged in the indictment.

Rather, “[t]here were a series of separate and distinct transmissions, from the commercial banks

in Houston, to the [Federal Reserve Bank] in Dallas[,] [f]rom the [Federal Reserve Bank] in

Dallas to the [Federal Reserve Bank] in Atlanta, and from the [Federal Reserve Bank] in

Atlanta to the wire room of Seaside National [Bank] in Orlando.” Civ. Doc. 9 at 9–10

(emphasis in original). He argues that the United States was required to charge each of these

wire transmissions as a “separate offense” with a “precise wire origination and destination of

each transmission.” He asserts that because the United States improperly charged a series of

separate wire transmissions as a single wire transmission, the charged offenses are “non-

existent.” Id. He contends that counsel was ineffective for failing to seek dismissal of the wire

fraud counts based on this argument.

Nelson cannot demonstrate that counsel was ineffective for failing to assert this

argument in a motion to dismiss or that he was prejudiced by counsel’s performance. Nelson

cites no authority that requires the United States to charge the wire transmissions as he

proposes. The United States was not required to prove that the wires travelled directly from

Houston to Orlando. Rather, it was required to prove that “some communication . . . to help

carry out the scheme to defraud” was transmitted in interstate commerce. Eleventh Circuit

Pattern Jury Instructions (Criminal), Offense Instruction 51; Crim. Doc. 274 at 25.

Consequently, Nelson fails to demonstrate that no competent counsel would have failed to

seek dismissal of the wire fraud counts on this basis.

Furthermore, even under Nelson’s theory, a single transmission, in fact, crossed state

lines from Georgia to Florida. Nelson suffered no prejudice because the jury could have relied

on the interstate wire transmission from the Federal Reserve Bank in Atlanta to Seaside

National Bank in Orlando to reach its verdict that some communication to help carry out the

fraudulent scheme was transmitted in interstate commerce. Therefore, Nelson fails to

demonstrate a reasonable probability that, if counsel sought dismissal of the wire fraud

counts, the result of the proceeding would have been different.

Nelson’s reliance on Boruff v. United States, 310 F.2d 918 (5th Cir. 1962), which

concerned whether venue was proper, is misplaced. In Boruff, the victim sent funds from

Michigan to Atlanta, Georgia, by Western Union telegraph. The next day, by separate

transaction, the defendant sent the funds from Atlanta (in the Northern District of Georgia)

to Thomasville (in the Middle District of Georgia). The victim did not intend to send the

funds to Thomasville. The Fifth Circuit concluded that venue in the Middle District of

Georgia was improper because the only interstate transfer was from Michigan to Atlanta, and

the transfer was complete upon its receipt in Atlanta. Boruff is factually distinguishable

because here the trial evidence demonstrated that the wires, as charged in Counts 7 through

10, were single transactions originating in Houston and ending in Orlando. Crim. Doc. 431-

8 at 125–34. See also United States v. Curtis, No. 12-1788, 2013 WL 3049352, at *6 (S.D. Tex.

June 17, 2013) (finding that venue was proper because “[u]nlike the situation in Boruff, this

case involved wire transfers that were sent from out-of-state banks to banks located in the

Southern District of Texas as single transactions. It does not matter whether the transfers

passed through the Federal Reserve Bank in Dallas on their way from out of state into the

Southern District; each transfer was sent as a single transaction that was not completed until

it arrived at the destination bank account in this District.”).

2. Mail Fraud

Nelson asserts that counsel was ineffective for failing to move to dismiss the mail fraud

counts in Counts 3 through 6 because the mailings were not in furtherance of the fraud

scheme. Evidence at trial established that, after a customer executed a sales contract to

purchase gold from Own Gold and remitted payment, the company mailed a Certificate of

Ownership to the customer that memorialized the purchase. Nelson now argues that “the

mailing of Certificates of Ownership, as much as three months after receipt of the funds, is

too attenuated [and] too long after the receipt of the money” to be an act in furtherance of the

scheme. He argues that the Certificates of Ownership could not be the “but for” connection

to the scheme because the Certificates were mailed three months after the customers remitted

payment. Civ. Doc. 9 at 12–13.

“To be part of the execution of the fraud, . . . the use of the mails need not be an

essential element of the scheme. It is sufficient for the mailing to be incident to an essential

part of the scheme or a step in the plot.” Schmuck v. United States, 489 U.S. 705, 710–11 (1989)

(citations and alterations omitted). However, “[t]here does come a point at which a mailing

will no longer be considered part of the execution of a fraudulent scheme. After a scheme has

reached fruition mailings generally cannot have been for the purpose of executing the

scheme.” United States v. Hill, 643 F.3d 807, 859 (11th Cir. 2011) (citations omitted). Also,

“[u]nder the lulling exception, mailings are sufficiently a part of the execution of a fraudulent

scheme if they are used to lull the scheme’s victims into a false sense of security that they are

not being defrauded, thereby allowing the scheme to go undetected.” Id.

Nelson cannot demonstrate that counsel was ineffective for failing seek dismissal of

the mail fraud counts or that he was prejudiced by counsel’s performance. On direct appeal,

the circuit court summarily rejected Nelson’s challenge to the sufficiency of the evidence

supporting the mail fraud counts and affirmed his convictions. Nelson, 884 F.3d at 1110.

Furthermore, trial evidence supported the conclusion that the Certificates of Ownership

advanced the fraud scheme because they caused customers to believe that their gold purchase

was legitimate. Doc. 431-3 at 114 (“I understood it to be a certificate in my benefit of

ownership of 300 ounces of ore gold.”); Doc. 431-4 at 172 (“[The Certificate of Ownership

indicated] [t]hat I was the owner of 56 ounces of . . . gold.”).

The cases Nelson cites are factually distinguishable. See United States v. Maze, 414 U.S.

395 (1974) (reversing mail fraud convictions because the merchants’ mailing of sales slips to

the bank, which would forward the slips to the victim for payment, did not further the credit

card fraud scheme); Parr v. United States, 363 U.S. 370, 391–92 (1969) (reversing mail fraud

convictions because the mailings contained no false pretense or misrepresentation to obtain

money); Kann v. United States, 323 U.S. 88, 94 (1944) (reversing mail fraud convictions

because “the mere clearing of a check” by a bank after the bank released the funds to the

defendants was “immaterial” to the scheme). Here, the fraudulent Certificates of Ownership

furthered the scheme, even though they were mailed months after the customers remitted

payment, because they caused the customers to believe their purchases were legitimate.

Nelson fails to demonstrate that counsel was ineffective for failing to seek dismissal of

the wire and mail fraud counts or that he was prejudiced by counsel’s performance.

Accordingly, he is not entitled to relief on Ground One.

B. Ground Two: Whether counsel was ineffective for failing to advise Nelson

to enter a plea agreement

Nelson asserts that counsel was ineffective for failing to advise him to enter a plea

agreement due to the strength of the government’s case. He states that counsel never

explained the legal significance of the government’s evidence, never reviewed the discovery

with him, and never discussed plea offers with him. He states that, if counsel had advised

him properly, there was a “reasonable probability” he would have entered a plea agreement

because “it would probably have been [his] best alternative.” Civ. Doc. 8 at 1. He argues

that an evidentiary hearing is necessary because counsel does not dispute his assertions. Civ.

Doc. 18 at 10.

However, counsel emphatically disputes Nelson’s assertions and states that he “met

with Mr. Nelson on numerous occasions, reviewed all discovery with him, and answered all

of his questions.” Attached to counsel’s affidavit are letters from counsel’s office to Nelson

which included batches of the government’s discovery on discs. The record also contains a

plea agreement offered by the government, and email correspondence from counsel to the

government stating that Nelson declined to accept the plea agreement. Civ. Doc. 16-1 at 3

and 24–93.

Even accepting all of Nelson’s assertions as true, he fails to show he was prejudiced by

counsel’s performance. When a defendant challenges a not-guilty plea based on ineffective

assistance of counsel, he “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.”

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (citations and alterations omitted).

Nelson does not meet this burden. His assertions that there was a “reasonable probability”

that he would have pleaded guilty and that the plea agreement was “probably” his best

alternative are contradicted by his other assertions that he has “never cheated anyone” and

that he “wanted to testify and tell the jury” of his innocence. Civ. Doc. 8 at 1 and 4.

Furthermore, Nelson “offer[s] no further proof to show that he would have accepted the

[government’s] plea [agreement] . . . absent [counsel’s] alleged errors.” Coulter, 60 F.3d at

1504. Nelson’s noncommittal, “after the fact [assertion] concerning his desire to plead,

without more, is insufficient to establish that but for counsel’s alleged advice or inaction, he

would have accepted the plea offer.” Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991).

Furthermore, Nelson is not entitled to an evidentiary hearing. “It is well-settled that

the district court is not required to grant an evidentiary hearing when the defendant’s claims

are affirmatively contracted by the record evidence, nor is a hearing required if the claims are

grounded upon generalizations that are unsupported by the record evidence.” Rosin v. United

States, 786 F.3d 873, 878 (11th Cir. 2015). Nelson did not accept responsibility and continued

to profess his innocence at sentencing, on appeal, and in his Section 2255 motion. See id.

(affirming denial of a Section 2255 without an evidentiary hearing when the defendant

“refused to accept responsibility and adamantly professed his innocence during all stages of

his criminal proceedings”). At sentencing, Nelson sought to avoid responsibility by

explaining that he “involved [himself] with something beyond [his] ability to control in spite

of [his] most earnest intentions and best possible efforts.” Crim. Doc. 428 at 25. On appeal,

he maintained his theory of defense that he acted in good faith and that alleged

misrepresentations were the fault of erroneous legal advice. United States v. Nelson, No. 16-

14253-EE, 2017 WL 74314 (11th Cir. Jan. 4, 2017) (Initial Brief of Appellant). In his Section

2255 motion, Nelson continues to deny responsibility, stating that he “never cheated

anyone.” Civ. Doc. 8 at 4. Thus, the record contradicts Nelson’s position that he would have

accepted a guilty plea and not insisted on going to trial but for his counsel’s alleged errors.

See Rosin, 786 F.3d at 879 (without an evidentiary hearing, rejecting the petitioner’s assertion

that he would have accepted a guilty plea “in the absence of any evidence other than his own

conclusory after-the-fact assertion—and given the record evidence contradicting it”).

C. Ground Three: Whether counsel was ineffective for failing to prepare

adequately for trial and for failing to challenge effectively the government’s

evidence at trial

Nelson asserts that counsel was ineffective both before and during trial. He contends

that counsel failed to investigate facts and witnesses, failed to cross-examine effectively the

government’s witnesses, and failed to challenge effectively the government’s faulty evidence.

Finally, he asserts that he committed no “guilty act” that is required to sustain a conviction.

Civ. Doc. 9 at 16–21.

In particular, Nelson argues that he did not author the July 12, 2012 letter that Own

Gold sent to customers, informing them that the company had commenced processing ore,

although his name is located in the letter’s closing salutation. As evidence that he did not

author the letter, Nelson points to the testimony of a special agent who confirmed that Nelson

was not included in company emails concerning the letter. Crim. Doc. 431-5 at 183.

Next, Nelson argues that he did not draft a press release celebrating the delivery of

gold to the company’s first customer. As evidence that he did not author the press release,

Nelson again points to the testimony of the same special agent who confirmed that a draft of

the press release was sent to—not from—Nelson. Crim. Doc. 431-6 at 16–17. He states that,

without his knowledge, co-defendant Cassim issued letters, press releases, and website notices

with Nelson’s name. Civ. Doc. 8 at 2. He argues that the government falsely attributed the

misrepresentations contained in the letter and press release to him, and that the presentence

investigation report simply “regurgitates” the government’s faulty argument. Civ. Doc. 9 at

16–17.

Nelson states in his affidavit that, although he provided documents to counsel to

substantiate that he did not author the letter or press release, counsel failed to present any

defense. He states there was “very little follow-up” or “notetaking.” He also states that he

requested that counsel interview and subpoena co-defendant Skillern’s father and ex-wife,

who could have testified about Nelson’s legitimate efforts to locate gold. Civ. Doc. 8 at 2–3.

Counsel disputes Nelson’s assertions. He states that “[t]he entire discovery was

reviewed with Mr. Nelson in preparation for trial and during trial and all of his questions were

answered at all junctures of the proceedings.” He states that “the best defense was presented

on [Nelson’s] behalf” and that “the trial record . . . speaks for itself.” Civ. Doc. 16-1 at 7–8.

The decision whether to present a line of defense, or even to investigate it, is a matter

of strategy and is not ineffective unless the petitioner can prove that the chosen course was

unreasonable. Hardwick v. Crosby, 320 F.3d 1127, 1162 n.146 (11th Cir. 2003). Similarly, “no

absolute duty exists to investigate particular facts or a certain line of defense” so long as the

decision to conduct or not conduct an investigation is reasonable. Chandler, 218 F.3d at 1317.

Counsel is not “required to ‘pursue every path until it bears fruit or until all hope withers.’”

Williams v. Head, 185 F.3d 384, 387 (11th Cir. 1994). “A decision to limit investigation is

‘accorded a strong presumption of reasonableness.’” Mills v. Singletary, 63 F.3d 999, 1021

(11th Cir. 1995).

Nelson fails to demonstrate that counsel’s overall performance was deficient or that he

was prejudiced. Nelson’s claim presents more like another assertion of his innocence (which

the jury rejected) and another challenge to the sufficiency of the evidence (which the circuit

court rejected), rather than a true claim of ineffective of assistance of counsel. The record

shows that counsel’s performance before and during trial fell well within the wide range of

professional competence. Furthermore, Nelson’s assertion that other witnesses could have

provided exculpatory testimony is pure speculation. See Brownlee v. Haley, 306 F.3d 1053,

1060 (11th Cir. 2002) (“[S]peculation is insufficient to carry the burden of a habeas corpus

petitioner as to what evidence could have been revealed by further investigation.”) (citations

omitted). Accordingly, Nelson is not entitled to relief on Ground Three.

D. Ground Four: Whether counsel was ineffective for failing to object to jurors

sleeping during trial

Nelson asserts that counsel was ineffective for failing to object and move for a mistrial

when jurors were sleeping on multiple occasions during trial. In his affidavit, Nelson states

that he “noticed at least four jurors sitting with their eyes closed and not moving at various

times during the trial” who “appeared to be sleeping.” He states that he saw “one juror nudge

another to wake him up on one occasion.” He states that he notified counsel that jurors were

sleeping, but counsel never objected. Civ. Doc. 8 at 4–5. In response, defense counsel states

that he observed no jurors sleeping during the trial and that Nelson never notified him of

sleeping jurors. Civ. Doc. 16-1 at 9.

“’Defense counsel has a duty to call a juror’s inattentiveness to the court’s attention.’”

United States v. Mathis, 554 F. App’x 856, 857 (11th Cir. 2014)1 (quoting United States v. Curry,

1 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive

authority.” 11th Cir. Rule 36-2.

471 F.2d 419, 422 (5th Cir. 1973)) (alterations omitted). However, “’[t]here is no per se rule

requiring an inquiry in every instance of alleged juror misconduct.’” Mathis, 554 F. App’x at

857 (on direct appeal, finding that the district court did not plainly err by not questioning or

replacing an allegedly sleeping juror) (alterations omitted) (quoting United States v. Hernandez,

921 F.2d 1569, 1577 (11th Cir. 1991)). Rather, the district court is afforded “broad discretion

. . . [when] confronted with . . . an allegation of juror misconduct[,]” including “the initial

decision of whether to interrogate jurors.” United States v. Yonn, 702 F.2d 1341, 1345 (11th

Cir. 1983).

The parties identify one instance in the record when the district court acknowledged

juror inattentiveness. On the sixth day of trial, the following exchange occurred

(Crim. Doc. 431-5 at 33–34):

THE COURT: How much longer with this witness?

AUSA: I’d say about 15 minutes, Your Honor.

THE COURT: We’re going to have to take a break, we’re

losing our jury. So let’s take about a 15- minute

break until about 10:30. Shake a leg, take a

walk around the block.

(Jury excused from the courtroom.)

…

THE COURT: [AUSA], I know you are trying to be

methodical, but if you move any slower, you’ll

be standing still. The jury is dosing. I don’t

want to have to keep waking them up and

embarrassing them, but you’re controlling this,

so you’re going to have to get enthusiastic or

expect that they’re not going to hear some of

what you’re trying to convey.

AUSA: Thank you, Your Honor.

Nelson is not entitled to relief on Ground Four because he cannot demonstrate that he

was prejudiced by counsel’s failure to object, or move for a mistrial, due to sleeping jurors.

When the district court observed “dosing” jurors, it ordered a brief break to allow jurors a

reprieve from the testimony. The court also advised the government’s counsel to alter her

questioning in order to keep the jurors’ attention. These steps are well within the district

court’s broad discretion to address juror inattentiveness, and the court was not required to

interrogate the jurors.

Furthermore, Nelson has not demonstrated a reasonable probability that the outcome

of the trial would have been different if counsel had objected, requested an inquiry, or moved

for a mistrial. Nelson does not provide any details concerning the four sleeping jurors he

claimed to have witnessed, such as when he witnessed them sleeping or when he notified

counsel. Also, Nelson points to no other instance in the 15-day trial in which the district court

sua sponte identified or addressed inattentive or sleeping jurors. Furthermore, Nelson does not

demonstrate how he was prejudiced by jurors’ alleged inattentiveness to the government’s

witness on direct examination by the government. See Clarke v. McNeil, 2010 U.S. Dist. LEXIS

141652, at *18 (S.D. Fla. Oct. 7, 2010) (concluding there was no reasonable probability that

the outcome of the case would have been different if counsel had objected to a sleeping juror,

when the juror allegedly slept for a brief period of time and during the state’s closing

argument), adopted in part, 2011 U.S. Dist. LEXIS 18864, at *23 (S.D. Fla. Feb. 25, 2011);

Torres-Bonilla v. United States, No. 15-23204, 2016 U.S. Dist. WL 1166597, at *10 (S.D. Fla.

Feb. 17, 2016), adopted, 2016 WL 11665896, at *1 (S.D. Fla. Mar. 3, 2016) (concluding that

petitioner failed to show how the outcome of the trial would have been different if counsel

had objected to sleeping jurors and the evidence against the defendant was overwhelming).

Accordingly, Nelson is not entitled to relief on Ground Four.

E. Ground Five: Whether counsel was ineffective for failing to advise him

adequately of his right to testify

Nelson argues that counsel was ineffective for failing to prepare him to testify on his

own behalf. In his affidavit, he states that he wanted to testify in order to explain his limited

involvement in OWN GOLD; however, counsel advised him he did not need to testify

because the government’s case “had not gone well.” Nelson contends that this advice was

not strategic, but rather, given to him because counsel failed to prepare him to testify. Civ.

Doc. 9 at 23–24. Counsel disputes Nelson’s assertions. Civ. Doc. 16-1 at 3–4 and 8.

During trial, the district court questioned Nelson about his decision not to testify

(Crim. Doc. 431-9 at 115–18):

THE COURT: Mr. Nelson, you’re under oath. You must give

truthful answers to the questions that are

asked. If you give false answers, you face

penalties of perjury, false statement and

obstruction.

Do you understand that?

NELSON: Yes, ma’am, I do.

. . .

THE COURT: Your lawyer has advised the Court that it is

your intent not to present testimony or

witnesses in defense of the charges that the

Government has brought against you beyond

that evidence and testimony that your lawyer

has elicited so far by cross-examination of the

Government’s witnesses and beyond that that

they might present in cross-examination of the

witnesses presented by Mr. Skillern and in the

entry of documents in connection with that

cross-examination.

Do you understand that?

NELSON: I do, yes, ma’am.

THE COURT: Under the Constitution of the United States,

you’re entitled to present a full defense, you’re

entitled to have Counsel represent you in that

defense, you’re entitled to testify on your own

behalf, if you wished to testify. You’re also

entitled, as you know, not to testify so as not to

have the possibility of incriminating yourself.

By making a decision not to present a defense,

you’re giving up your right to present such a

defense. In that case, the jury will be left to

consider your guilt or innocence based solely

upon the evidence that the Government has

introduced and your lawyer’s introduction of

minimal evidence in cross-examination of the

witnesses presented by the Government and

others.

Do you understand that?

NELSON: Yes, ma’am, I do.

. . .

THE COURT: Have you had a full opportunity to discuss this

decision with your lawyer before you made the

decision not to present a further defense or to

testify?

NELSON: Yes, ma’am, at length.

THE COURT: Are you satisfied with the representation that

your lawyer has provided you with respect to

that issue?

NELSON: Extremely so.

THE COURT: Do you have any questions about this issue for

the Court?

NELSON: No, ma’am, none.

. . .

THE COURT: Mr. Nelson, in your own words, sir, could you

please tell the Court what you’re deciding to do

with respect to a decision not to present a

defense and not to testify?

NELSON: Yes, ma’am. The evidence has been presented

thus far, I’m confident in what has been

presented in my behalf and I have chosen not

to testify.

“Defense counsel bears the primary responsibility for advising the defendant of his

right to testify or not to testify, the strategic implications of each choice, and that it is

ultimately for the defendant himself to decide.” United States v. Teague, 953 F.2d 1525, 1533

(11th Cir. 1992) (en banc). Counsel renders ineffective assistance of counsel when he refuses

to accept the defendant’s decision to testify and does not call him to the stand, or when he

never informs the defendant of his right to testify and that the decision whether to testify

belongs to the defendant alone. Id. at 1534.

The record conclusively refutes Nelson’s assertion that counsel’s advice deprived him

of his constitutional right to testify. Nelson swore under oath that (1) he was aware of his

right to testify, (2) he had discussed the issue with his lawyers “at length,” and (3) he was

“extremely” satisfied with his counsel’s representation on this issue. “Solemn declarations in

open court carry a strong presumption of verity.” Blackledge v. Allison, 421 U.S. 63, 74 (1977).

Nelson fails overcome the strong presumption that these statements under oath were false.

See Marquez v. United States, 684 F. App’x 843, 866 (11th Cir. 2017) (affirming the denial of a

Section 2255 motion without an evidentiary hearing when the defendant told the court that

he had decided not to testify after he had discussed his rights and options with counsel).2

Furthermore, Nelson fails to demonstrate prejudice. Although he contends that “it

was important for the jury to hear” his testimony about his limited involvement in Own Gold

(Civ. Doc. 8 at 2) and that such testimony was “critical to his defense” (Civ. Doc. 7 at 10), he

stops short of arguing that counsel refused to accept his decision to testify, or that his

testimony would have resulted in acquittal. Broomfiled v. United States, 2018 U.S. App. LEXIS

2 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”

11th Cir. Rule 36-2.

29449, at *6 (11th Cir. Oct. 18, 2018) (denying a certificate of appealability when the district

court informed the defendant of his right to testify and he acknowledged his understanding of

his rights and the defendant “offered only a conclusory assertion that his testimony would

have resulted in an acquittal”). Nelson describes the testimony he would have offered, but he

fails to argue how the proposed testimony would have caused the jury to render a different

verdict in light of trial evidence that established his guilt. Accordingly, Nelson is not entitled

to relief on Ground Five.

F. Ground Six: Whether counsel was ineffective at sentencing

Nelson raises the following six claims concerning counsel’s ineffectiveness at

sentencing: (1) that counsel’s failure to object to the reasonableness of the sentence was

prejudicial and not strategic; (2) that counsel failed to challenge the loss amount attributable

to Nelson, (3) that counsel failed to challenge the sentence as unreasonable, (4) that counsel

failed to argue that longer sentences lead to greater recidivism based on recidivist data from

the Sentencing Commission, (5) that counsel failed to argue effectively that his criminal

history was overstated, and (6) that counsel failed to argue effectively for a reduced sentence

based on his post-traumatic stress disorder (“PTSD”). Civ. Doc. 7 at 12.

1. Sentencing Claims 1 and 3

Nelson asserts that counsel was ineffective for failing to challenge his sentence as

unreasonable. He contends that his sentence is disproportionately larger than the sentence

received by co-conspirator Cassim and is greater than necessary considering his individual

characteristics. Civ. Doc. 9 at 26 and 28–29.

Nelson fails to demonstrate that counsel’s performance at sentencing was deficient or

that he was prejudiced. Counsel asserted many of the arguments that Nelson now complains

about, including that his role in the conspiracy was minor compared to Cassim’s role, that he

was twice terminated from Own Gold, that he did not create Own Gold’s website, that he did

not mail certificates of ownership to investors, that he suffered from PTSD, that he was naive,

that he had a low risk of recidivism, that he tried to make Own Gold successful, that his

criminal history category was overstated, and that he was a honorably-discharged veteran.

Crim. Doc. 417 at 10–21.

The district court granted a variance based on many of counsel’s arguments. The

district court explained, “[t]o the extent that this sentence reflects a variance under the 3553

factors, it is so to consider the Defendant’s prior military service, his lack of a reasonable

opportunity to be recidivist in this matter upon completion of this sentence just imposed, his

advanced age, and health conditions, as well as to avoid disparity in sentencing.” Crim. Doc.

417 at 57. The sentence was reasonable and well-supported. Consequently, Nelson’s claim

lacks merit because he fails to demonstrate what more counsel could have argued to support

a shorter or more proportionate sentence. Nelson also fails to show he was prejudiced because

the district court, in fact, considered many of counsel’s arguments when imposing the

sentence.

2. Sentencing Claim 2

Nelson asserts that counsel was ineffective for failing to seek exclusions from the loss

calculation for the nine months when he was not employed at Own Gold. He argues that

counsel should have requested an evidentiary hearing to identify funds Own Gold obtained

during his absences. Civ. Doc. 9 at 27–28. At sentencing, counsel began to argue that “there

was a time when [Nelson] was fired” and “not dealing with the affairs of the Own Gold

company when a large sum of money came in,” which could affect the loss calculation.

However, immediately thereafter, Nelson withdrew this objection. Addressing him directly,

the district court asked, “You are withdrawing that objection, Mr. Nelson?” to which he

responded, “yes.” Crim. Doc. 417 at 33–34.

“[T]he district court may hold all participants in a conspiracy responsible for the losses

resulting from the reasonably foreseeable acts of co-conspirators in furtherance of the

conspiracy.” United States v. Dabbs, 134 F.3d 1071, 1082 (11th Cir. 1998). To prove

withdrawal from a conspiracy, “the defendant has the substantial burden of proving: (1) that

he has taken affirmative steps, inconsistent with the objectives of the conspiracy, to disavow

or to defeat the objectives of the conspiracy; and (2) that he made a reasonable effort to

communicate those acts to his co-conspirators or that he disclosed the scheme to law

enforcement authorities.” United States v. Starrett, 55 F.3d 1525, 1550 (11th Cir. 1995). “A

mere cessation of participation in the conspiracy is insufficient to prove withdrawal.” Dabbs,

134 F.3d at 1083 (holding that a defendant’s mere “physical distance from, rather than his

repudiation of, the actions of his co-conspirators” did not constitute withdrawal).

Nelson fails to identify any argument or evidence that demonstrates his withdrawal

from the conspiracy. Nelson contends that he “had one or more conversations [with co-

conspirator Skillern] about [Nelson’s] desire to be removed as an officer or owner.” Civ. Doc.

8 at 5. However, he fails to assert that he communicated to his co-conspirators that he wished

to terminate his involvement in the conspiracy during his absence from Own Gold, or at any

other time. Nor does he identify any act by him to thwart or disrupt the objectives of the

conspiracy. The district court observed at the sentencing hearing that “[t]here was never a

period in the scheme that the Jury found [Nelson] not to be a participant or the subject, and

therefore, there will not be a time when he wouldn’t be responsible for the full amount of the

loss.” Crim. Doc. 417 at 22. Consequently, Nelson fails to demonstrate he was prejudiced

by counsel’s (and his own) decision not to seek a loss reduction. See United States v. Carrazana,

362 F. App’x 973, 977 (11th Cir. 2010) (affirming the district court’s loss determination that

the defendant was responsible for losses that accrued after he left employment because “there

[was] no evidence that [the defendant] took any action to thwart or disrupt the objectives of

the conspiracy”).

3. Sentencing Claim 4

Nelson asserts that counsel failed to argue that longer sentences lead to greater

recidivism based on recidivist data from the Sentencing Commission. Nelson presents a one-

page document titled “Recidivism and Sentences Imposed,” which states that “[o]ffenders

with shorter lengths of imprisonment generally had lower recidivism rates.” Civ. Doc. 9 at

35.

Even assuming this document’s authenticity, Nelson cannot show that counsel was

ineffective in failing to reference recidivism data from the Sentencing Commission, or that

counsel’s performance prejudiced him. Nelson does not explain how this data would have

impacted the length of his sentence. In fact, the district court considered that Nelson would

be unlikely to recidivate when imposing the sentence. The district court considered “his lack

of a reasonable opportunity to be recidivist” when imposing the sentence. Crim. Doc. 417 at

57. Nelson does not show that no competent counsel would have failed to present this

recidivism data, or that his sentence would have been shorter had counsel presented this data.

4. Sentencing Claim 5

Nelson asserts that counsel failed to effectively challenge his criminal history category.

He contends that his criminal history category of III resulted from traffic offenses and

overstates both the seriousness of his past criminal conduct and his propensity to commit

crimes. Civ. Doc. 9 at 30. In a sentencing memorandum and during the sentencing hearing,

counsel urged the district court to consider that Nelson’s two prior DUI offenses were

misdemeanors that did not result in any injury and that he committed no prior crimes of

violence. Crim. Doc. 329 at 7–8; Crim. Doc. 417 at 17.

Nelson’s fails to demonstrate what more counsel could have argued to challenge his

criminal history category, or that he was prejudiced by counsel’s performance. Notably,

Nelson does not dispute the accuracy of the presentence report concerning his DUI offenses.

“The mere fact that counsel was unsuccessful in making certain arguments, does not, without

more, direct a finding that counsel’s performance was constitutionally deficient.” United States

v. Walker, No. 3:08-cr-87, 2015 WL 4389939, at *8 (N.D. Fla. July 15, 2015); Ward v. Hall,

592 F.3d 1144, 1164 (11th Cir. 2010) (“The fact that a particular defense was unsuccessful

does not prove ineffective assistance of counsel”).

5. Sentencing Claim 6

Nelson asserts that counsel failed to argue effectively for a reduced sentence based on

his PTSD. In a sentencing memorandum and at sentencing counsel urged the district court

to consider that Nelson suffers from depression and PTSD. Crim. Doc. 329 at 9; Crim. Doc.

417 at 18. Counsel presented a psychological evaluation of Nelson, which concluded that

Nelson “does, in fact, have a history of clinically significant symptoms of PTSD.” Crim.

Doc. 344-1 at 11. In granting a variance, the district court explained that it considered

Nelson’s “health conditions.” Crim. Doc. 417 at 57. Nelson’s claim lacks merit because he

fails to demonstrate what more counsel could have argued to support a reduced sentence

based on his PTSD. Nelson also fails to show he was prejudiced because the district court, in

fact, considered his health when imposing the sentence.

Each of Nelson’s sentencing claims fails. Accordingly, he is not entitled to relief on

Ground Six.

G. Ground Seven: Whether appellate counsel was ineffective

Nelson argues that appellate counsel was ineffective for failing to raise the following

issues: (1) that jurors were sleeping during the trial, (2) that the district court committed

sentencing errors and the sentence was unreasonable, and (3) that “the two instances of

alleged misrepresentations touted by the prosecution as proof of [his] fraudulent intent were

in fact not made, crafted, or approved by Nelson.” He argues that these issues were “clearly

stronger” than the issues appellate counsel raised. Civ. Doc. 7 at 14.

Nelson raised the following issues on direct appeal: (1) that he should have been

acquitted of all counts because the jury was required to accept his argument that he relied in

good faith on the advice of an attorney, (2) that the evidence supporting the mail fraud counts

was insufficient, and (3) that the evidence of his intent to defraud was insufficient. The circuit

court ruled that all of these issues “boil down to sufficiency-of-the-evidence challenges” and

summarily rejected them. Nelson, 884 F.3d at 1110.

“[The] process of ‘winnowing out weaker arguments on appeal and focusing on’ those

more likely to prevail, far from being evidence of incompetence, is the hallmark of effective

appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463

U.S. 745, 751–52 (1983)). “Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of counsel be overcome.” Smith

v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted). Furthermore, “[a]ppellate counsel has

no duty to raise every non-frivolous issue and may reasonably weed out weaker (albeit

meritorious) arguments.” Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016). “It is

also crystal clear that there can be no showing of actual prejudice from an appellate attorney’s

failure to raise a meritless claim.” Brown v. United States, 720 F.3d 1316, 1335 11th Cir. 2013).

Nelson fails to demonstrate that the issues he raises now are “clearly stronger” than

those raised by appellate counsel or that he was prejudiced by appellate counsel’s

performance. As previously explained, Nelson was not prejudiced by alleged sleeping jurors,

and his sentencing arguments lack merit. Consequently, appellate counsel was not ineffective

for not raising these meritless claims. Furthermore, Nelson’s third proposed appellate

challenge to the government’s evidence of Nelson’s fraudulent intent is a sufficiency-of-the-

evidence issue, which the circuit court already flatly rejected. Accordingly, Nelson is not

entitled to relief on Ground Seven.

III. Need for Evidentiary Hearing

A district court deciding a Section 2255 motion may “order . . . its summary dismissal

‘[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior

proceedings in the case that the movant is not entitled to relief[.]’” Broadwater v. United States,

292 F.3d 1302, 1303 (11th Cir. 2003) (quoting 28 U.S.C. § 2255). No hearing is required

when the record establishes that a Section 2255 claim lacks merit, United States v. Lagrone, 727

F.2d 1037, 1038 (11th Cir. 1984), or that it is defaulted, McCleskey v. Zant, 499 U.S. 467, 494

(1991). Nelson has not established the need for an evidentiary hearing. Birt v. Montgomery,

725 F.2d 587, 591 (11th Cir. 1984) (en banc).

IV. Conclusion

Accordingly, Nelson’s pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence (Civ. Doc. 7) is DENIED. The CLERK is directed to enter a judgment

against Nelson, to CLOSE this case, and to enter a copy of this order in the criminal action.

DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Nelson is not entitled to a certificate of appealability (“COA”). 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). Rather, a district court must first issue a COA. Section

2253(c)(2) permits issuing a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” To merit a certificate of appealability, Nelson must show

that reasonable jurists would find debatable both (1) the merits of the underlying claims and

(2) the procedural issues he seeks to raise. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Nelson has not shown

that reasonable jurists would debate either the merits of the claims or the procedural issues.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Nelson must obtain permission from the circuit court to appeal in forma pauperis.

DONE and ORDERED in Chambers in Tampa, Florida, this 26th day of April, 2021.

UNITED STATES DISTRICT JUDGE

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