Calhoun v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ERICK CALHOUN,

Petitioner,

v. Case No: 2:20-cv-348-FtM-29MRM

Case No. 2:18-CR-25-FTM-29MRM

Case No. 2:18-CR-67-FTM-29CM

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

This matter comes before the Court on petitioner’s Motion

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

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

#56)1 filed on May 12, 2020. The government filed a Response in

Opposition (Cv. Doc. #6) to the motion on July 13, 2020. For the

reasons set forth below, the motion is denied.

I.

In 2018, petitioner was indicted in two cases in the Middle

District of Florida. On February 14, 2018, a federal grand jury

in Fort Myers, Florida returned a one-count Indictment charging

petitioner with being a felon in possession of a firearm and

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

“Cv. Doc.” and will refer to the docket of the two related

underlying criminal cases as “Cr. Doc.” along with the specific

case number.

ammunition (Case No. 2:18-CR-25-FTM-29MRM, Cr. Doc. #4, which will

also be referred to as the First Case). On May 9, 2018, a federal

grand jury in Fort Myers, Florida returned a three-count Indictment

charging petitioner with (1) being a felon in possession of a

firearm and ammunition, (2) possession with intent to distribute

marijuana, and (3) carrying a firearm during and in relation to a

drug trafficking crime (Case No. 2:18-CR-67-FTM-29CM, Cr. Doc. #1,

which will also be referred to as the Second Case). Petitioner

entered guilty pleas pursuant to a consolidated Plea Agreement

(Case No. 18-cr-25, Doc. #26; Case No. 18-cr-67, Doc. #28),

pleading guilty to Count One in the First Case and guilty to Counts

Two and Three in the Second Case.

On January 22, 2019, the Court sentenced petitioner to 84

months imprisonment as to Count One in the First Case and 60 months

imprisonment as to Count Two in the Second Case, to run

concurrently; and 60 months imprisonment as to Count Three in the

Second Case, to run consecutively to the other sentences; followed

by a term of supervised release. (Case No. 18-cr-25, Cr. Doc.

#48.) Judgment was entered on January 24, 2019. (Case No. 18-

cr-25, Cr. Doc. #49; Case No. 18-cr-67, Cr. Doc. #50.) A Corrected

Judgment (Case No. 18-cr-25, Cr. Doc. #51; Case No. 18-cr-67, Cr.

Doc. #52) was filed on January 25, 2019.

Petitioner signed his § 2255 motion on May 6, 2020, and he

raises four grounds for relief. In Ground One, petitioner argues

that the Plea Agreement violated his Sixth and Fourteenth Amendment

rights to a knowing, intelligent, and voluntary guilty plea.

Petitioner argues that he did not know the content of the Plea

Agreement and answered in the negative when asked if he was aware

of the contents, but the judge ignored the answers and proceeded

to accept the guilty pleas. In Ground Two, petitioner argues that

the federal court did not have jurisdiction to commence a criminal

prosecution because it had never arrested petitioner or

established probable cause to do so. Petitioner asserts the State

of Florida nolle prosed three counts based on a lack of evidence

and probable cause before the federal authorities stepped in and

pursued prosecution, in violation of petitioner’s “1st, Liberty,

Fourth Probable Cause, Search and Seizure, Arrest, Miranda

Warnings and 6th and 14th U.S.C. Amendments.” (Cv. Doc. #1, p.

5.) In Ground Three, petitioner argues that he was detained in

custody without bond or bail for more than a year under duress and

in violation of his First, Eighth, and Fourteenth Amendment rights

to coerce the guilty pleas in this case. In Ground Four,

petitioner argues there was fraud and a fraudulent factual basis

for the arrest and the Plea Agreement since petitioner was arrested

without a warrant or probable cause.

II.

Federal prisoners whose convictions became final after April

24, 1996, the effective date of The Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), have one year from the latest

of any of four events to file a § 2255 Motion:

(1) the date on which the judgment of

conviction becomes final;

(2) the date on which the impediment to making

a motion created by governmental action in

violation of the Constitution or laws of the

United States is removed, if the movant was

prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was

initially recognized by the Supreme Court, if

that right has been newly recognized by the

Supreme Court and made retroactively

applicable to cases on collateral review; or

(4) the date on which the facts supporting the

claim or claims presented could have been

discovered through the exercise of due

diligence.

28 U.S.C. § 2255(f). Petitioner did not file a direct appeal in

either case, and the convictions became final on February 8, 2019,

i.e., 14 days after entry of the Judgment. See Mederos v. United

States, 218 F.3d 1252, 1253 (11th Cir. 2000). Therefore,

1

petitioner had until February 10, 2020 , to file his § 2255 motion

for habeas relief. Absent contrary evidence from the government,

under the “mailbox rule” petitioner is deemed to have filed his

motion on May 6, 2020, the date he signed the motion. Washington

v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

1

In the § 2255 motion, petitioner asserts that the untimeliness

was caused by his state probation proceedings being affected by

the outcome of the federal criminal proceedings and the Corrected

Judgment. (Cv. Doc. #1, p. 11.) While the effect on the filing

of a § 2255 motion is not clearly explained, the one-year

limitations period is subject to equitable tolling. Holland v.

Florida, 560 U.S. 631, 634 (2010); Akins v. United States, 204

F.3d 1086, 1089 (11th Cir. 2000). The government’s request to

dismiss (Cv. Doc. #6, p. 5) does not even discuss petitioner’s

admittedly rather cryptic explanation. Accordingly, the Court

declines to resolve the § 2255 motion on a timeliness issue.

The government also seeks dismissal because petitioner has

procedurally defaulted all four issues by failing to file a direct

appeal raising the issues. The government argues that petitioner

has failed to assert any exception to the procedural default rule,

including cause and prejudice, a miscarriage of justice, or actual

innocence. (Cv. Doc. #6, pp. 5-7.) Reading the pro se § 2255

motion liberally, as the Court must, petitioner is asserting his

guilty pleas were involuntary and unknowing, coerced by a lengthy

pretrial detention, and based on the lack of a factual basis after

a bogus arrest and unlawful detention. The reasonable inference

is that petitioner raises issues of factual innocence, which is

the type of actual innocence within the meaning of the exception.

Bousley v. United States, 523 U.S. 614, 623 (1998). The

government’s response is insufficient to justify dismissal of the

motion for procedural default.

III.

A. Ground One: Validity of Guilty Pleas

Petitioner asserts that his guilty pleas were not made

knowingly, intelligently, and voluntarily. Because the record

establishes the contrary, Ground One is without merit.

“A guilty plea is more than a confession which admits that

the accused did various acts.” United States v. Broce, 488 U.S.

563, 570 (1989) (citations omitted). “By entering a plea of

guilty, the accused is not simply stating that he did the discrete

acts described in the indictment; he is admitting guilt of a

substantive crime.” Id. For this reason, the United States

Constitution requires that a guilty plea must be voluntary, and

defendant must make the related waivers knowingly, intelligently

and with sufficient awareness of the relevant circumstances and

likely consequences. United States v. Ruiz, 536 U.S. 622, 629

(2002); Hill v. Lockhart, 474 U.S. 52, 56 (1985); Henderson v.

Morgan, 426 U.S. 637, 645 (1976). A criminal defendant who has

pled guilty may attack the voluntary and knowing character of the

guilty plea, Tollett v. Henderson, 411 U.S. 258, 267 (1973); Wilson

v. United States, 962 F.2d 996, 997 (11th Cir. 1992), or the

constitutional effectiveness of the assistance she received from

her attorney in deciding to plead guilty, United States v.

Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986).

To be voluntary and knowing, (1) the guilty plea must be free

from coercion; (2) the defendant must understand the nature of the

charges; and (3) the defendant must know and understand the

consequences of her guilty plea. United States v. Mosley, 173

F.3d 1318, 1322 (11th Cir. 1999). Rule 11 explicitly directs the

district judge not to accept a plea without determining these “core

concerns.” Therefore, on review, the court is “warranted in

regarding the court’s acceptance of the plea as a positive finding

on each [component of the Rule].” United States v. Buckles, 843

F.2d 469, 473 (11th Cir. 1988).

Petitioner signed a 22-page Plea Agreement (Case No. 2:18-

cr-25, Cr. Doc. #26; Case No. 18-cr-67, Cr. Doc. #28), which

attested that petitioner was pleading guilty freely, knowingly,

and voluntarily (id. at pp. 15-17) and contained a 5-page factual

basis (id. at pp. 17-21) for the pleas. The Plea Agreement was

initialed on every page by petitioner, who certified that he had

read its entirety and fully understood its terms and signed the

document. (Id. at p. 22.)

2

At the plea hearing, the Magistrate Judge first placed

petitioner under oath and explained the consequences of providing

2

Transcripts have been created of the digital audio files of the

change of plea originally filed on September 19, 2018. (Case No.

any false or misleading information or answers. (Case No. 18-cr-

25, Cr. Doc. #57, p. 5.) Petitioner stated that his level of

education was the Twelfth Grade, and that he understood English.

(Id., p. 8.) When asked if he understood the Plea Agreement,

petitioner responded “yes, sir.” (Id.) The Magistrate Judge

concluded that petitioner’s “waivers and consents are made

knowingly, freely, intelligently, and voluntarily” and the pleas

could be considered for both cases. (Id., p. 11.) The Magistrate

Judge read the elements in each of the counts as detailed in the

Plea Agreement, and asked petitioner if he understood the elements

that the government would have to prove beyond a reasonable doubt.

Petitioner responded “yes, sir.” (Id., pp. 17-18.) Petitioner

stated that he had no questions about the elements of any of the

offenses. (Id., p. 18.) The possible penalties were also

detailed, and petitioner had no questions regarding the applicable

penalties. (Id., pp. 18-20.) The Magistrate Judge advised that

the sentence ultimately imposed by the district judge could be

higher than expected, and that petitioner could not withdraw the

guilty plea if that occurred. (Id., pp. 21-23.) Petitioner

stated he understood and confirmed his signature on the original

plea agreement. (Id., pp. 23-24.) The Magistrate Judge asked

petitioner if he had read every page and every word, and whether

he understood the plea agreement when his attorney went over it.

3

Each time, petitioner responded “yes, sir.” (Id., p. 24.)

The Magistrate Judge then reviewed specific provisions within

the Plea Agreement to ensure that petitioner understood that he

would be bound to all the terms whether discussed or not.

Petitioner stated he understood. (Id., pp. 25-26.) The

Magistrate Judge reviewed the acceptance of responsibility,

forfeiture of assets, sentencing non-binding recommendations,

restitution, and the sentence appeal waiver. Petitioner stated

he understood each of the discussed portions of the Plea Agreement.

(Id., pp. 26-31.)

Petitioner told the Magistrate Judge that no promises or

assurances had been made to him outside the Plea Agreement, and

that he understood the consequences of his plea of guilty. (Id.,

p. 32.) The Assistant United States Attorney detailed the factual

basis of the Plea Agreement, and petitioner stated that he read

the facts and admitted to all the facts. The Magistrate Judge

then went through specific facts, which petitioner admitted were

true. (Id., pp. 35-43.)

Petitioner agreed that he was pleading guilty freely and

voluntarily as in his best interest, and that he was doing so

because he was actually guilty. (Id., p. 43.) Petitioner agreed

3

Contrary to petitioner’s statement in the § 2255 motion (Doc.

#1, p. 4), petitioner did not tell the magistrate judge that he

that no threats, coercion, force, or intimidation caused him to

plead guilty. Petitioner also agreed that no promises were made

to induce the guilty plea. (Id.) Defense counsel also stated

they were not aware of any promises outside the Plea Agreement.

Petitioner stated he had no concerns about his representation by

counsel. (Id., pp. 44-45.)

The record establishes that the guilty pleas were voluntary,

intelligent, and knowing made. The responses given by petitioner

at the plea hearing establish the lack of any coercion. Further,

the factual basis for the pleas was clearly reviewed and admitted

by petitioner. Petitioner initialed each page of the Plea

Agreement, including the pages addressing the voluntariness of the

agreement and the factual basis. (Case No. 2:18-cr-25, Cr. Doc.

#26, pp. 15-21; Case No. 18-cr-67, Cr. Doc. #28, pp. 15-21.) The

Court finds that Ground One is without merit.

B. Ground Two: Jurisdiction of Federal Court

In Ground Two, petitioner argues that federal court did not

have jurisdiction because the State of Florida found no probable

cause to proceed with the charges when they were in state court.

Petitioner argues that the prosecution was contingent on the

state’s failed efforts in violation of his constitutional rights.

(Cv. Doc. #1, p. 5.)

As part of the Plea Agreement, petitioner “agrees that this

Court has jurisdiction and authority to impose any sentence up to

the statutory maximum. . . .” (Case No. 18-cr-25, Cr. Doc. #26,

p. 14; Case No. 18-cr-67, Cr. Doc. #28, p. 14.) The parties may

not stipulate to jurisdiction where none exists, so the Court will

examine its subject matter jurisdiction de novo.

On January 17, 2018, a federal Criminal Complaint was issued

charging petitioner with possession of a firearm and ammunition by

a convicted felon in violation of 18 U.S.C. § 922(g)(1) on August

8, 2017. (Case No. 2:18-cr-25, Cr. Doc. 1.) Petitioner was

arrested by state law enforcement officers on January 19, 2018, in

Lee County, Florida for fleeing or eluding law enforcement at a

high rate of speed or wanton disregard (Count 1), resisting or

obstructing an officer without violence (Count 2), driving while

suspended or revoked (Count 3), possession of a weapon or

ammunition by a felon (Count 4), possession of marijuana with

intent to sell (Count 5), child neglect without great bodily harm

(Count 6), and possession of a controlled substance without a

prescription (Count 7). On February 13, 2018, Counts 4 through 7

were nolle prosequi.

On February 14, 2018, a federal grand jury in Fort Myers

returned the two Indictments described earlier and issued warrants

for petitioner’s arrest on the federal charges. On May 16, 2018,

Counts 1 through 3 of the state case were nolle prosequi because

of a federal prosecution of the charges. (Case No. 18-cr-25, Cr.

Doc. #40, ¶¶ 28, 63.) The warrants based on the federal

Indictments were executed by petitioner’s arrest at the Lee County

Jail on May 25, 2018. (Case No. 18-cr-25, Cr. Doc. #14.)

Petitioner appeared with court-appointed counsel on May 25, 2018,

for an initial appearance before a federal magistrate judge. (Id.

Cr. Doc. #10.) The government moved to detain petitioner without

bond, so an arraignment and detention hearing were scheduled.

(Id., Cr. Doc. #11.) At a June 1, 2018 arraignment, petitioner

pled not guilty to all charges. (Id., Cr. Doc. #15.) Petitioner

waived his right to a detention hearing without prejudice to

seeking such a hearing later and petitioner was detained without

bond. (Id., Cr. Doc. #18.)

A United States district court has jurisdiction —“exclusive

of the courts of the States” — of “all offenses against the laws

of the United States.” 18 U.S.C. § 3231. See Musacchio v. United

States, 136 S. Ct. 709, 717 (2016) (“Federal courts’ general

criminal subject-matter jurisdiction comes from 18 U.S.C. § 3231,

which states: ‘The district courts . . . shall have original

jurisdiction . . . of all offenses against the laws of the United

States.’”) (alterations in original). “[S]ubject matter

jurisdiction in every federal criminal prosecution comes from 18

U.S.C. § 3231, and, in almost all criminal cases, that’s the

beginning and the end of the ‘jurisdictional’ inquiry.” United

States v. Tinoco, 304 F.3d 1088, 1104 n.18 (11th Cir. 2002)

(citation omitted). “So long as the indictment charges the

defendant with violating a valid federal statute as enacted in the

United States Code, it alleges an ‘offense against the laws of the

United States’ and, thereby, invokes the district court’s subject-

matter jurisdiction.” United States v. Brown, 752 F.3d 1344, 1354

(11th Cir. 2014) (citation omitted). This would not have changed

4

even if petitioner had been convicted of the state charges.

Petitioner was indicted for offenses under valid federal

statutes, and the district court therefore had jurisdiction

regardless of what happened in state court on the underlying state

law charges. The Court notes that, in light of Rehaif v. United

States, 139 S. Ct. 2191 (2019), Count One in Case No. 2:18-cr-25

and Count One in Case No. 2:18-cr-67 fail to properly allege the

offense of possession of a firearm by a convicted felon. While

this type of omission from a § 922(g) indictment is plain error,

United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020);

United States v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020);

United States v. Johnson, 981 F.3d 1171, 1179 (11th Cir. 2020);

United States v. Leonard, 4 F.4th 1134, 1143 (11th Cir. 2021);

United States v. Dudley, 5 F.4th 1249, 1267 (11th Cir. 2021), it

4

“Under current Supreme Court jurisprudence, the concept of dual

sovereignty allows a state to prosecute an individual for a crime

for which he already has stood trial in federal court, see Bartkus

v. Illinois, 359 U.S. 121 (1959), and the United States to

prosecute an individual for a crime for which he already has stood

trial in a state court, see Abbate v. United States, 359 U.S. 187

(1950).” United States v. Hamm, 659 F.2d 624, 639 (5th Cir. Unit

does not divest the district court of jurisdiction, Dudley, 5 F.4th

at 1266–67; United States v. Bates, 960 F.3d 1278, 1295 (11th Cir.

2020); Moore, 954 F.3d at 1333–37. Ground Two is without merit.

C. Ground Three: Pretrial Detention

Defendant argues that he was held in custody for more than a

year, under duress, to coerce a guilty plea. Defendant further

argues that he was held at a federal facility and his counsel’s

request for reasonable bail was denied even though he was not

deemed a flight risk or a danger to society. (Cv. Doc. #1, p. 7.)

The record establishes otherwise.

At petitioner’s federal arraignment on May 25, 2018, the

government sought detention, arguing that petitioner posed a

serious risk of flight and a danger to the community. At the

initial appearance hearing, the government argued that it was

entitled to presumptive detention as to Count Three in Case No.

18-cr-67 by statute. (Case No. 18-cr-25, Cr. Doc. #13; Cr. Doc.

#18.) A Pretrial Services Report (Id., Cr. Doc. #9) stated that

petitioner appeared for his initial appearance on a Writ from the

Lee County Sheriff’s Office where he was being held on a violation

of probation, with a revocation hearing scheduled for May 29, 2018.

The Report recommended detention because petitioner posed a risk

of nonappearance due to his: (1) unverifiable residential,

familial, and financial ties to the community; (2) lack of stable

employment; (3) substance abuse history; (4) criminal record with

prior violations of probation; (5) criminal activity while on

supervision; and (6) pending probation violation. Pretrial

Services also assessed there was a risk of danger based on the

nature of alleged offenses, his prior convictions for weapon and

violent related offenses, and his substance abuse. (Id.)

Petitioner, through counsel, waived the right to a detention

hearing without prejudice and agreed to remain in custody. (Id.,

Cr. Doc. #18.) The Order of Detention Pending Trial (Id., Cr.

Doc. #18) committed defendant to the custody of the Attorney

General but allowed defense counsel the ability to request a

detention hearing at a later date. No such request for a detention

hearing was ever filed, and petitioner signed a Plea Agreement on

September 10, 2018. Thus, petitioner was in federal custody for

approximately four months before deciding to enter guilty pleas.

Given the record at the guilty plea colloquy, there is no basis to

challenge the validity of the guilty plea. There is no merit to

Ground Three.

D. Ground Four: Fraud

Defendant argues that the State of Florida authorities

apprehended, arrested, and unconstitutionally detained him without

a warrant or probable cause, and in violation of the Fourth

Amendment of the U.S. Constitution, and the federal government

committed fraud by advancing the case.

The factual basis for the plea was as follows:

Defendant is pleading guilty because defendant

is in fact guilty. The defendant certifies

that defendant does hereby admit that the

facts set forth below are true, and were this

case to go to trial, the United States would

be able to prove those specific facts and

others beyond a reasonable doubt.

FACTS

The defendant, Eric Lamar Calhoun, is a

convicted felon, having previously been

convicted of five felonies in the State of

Florida. On or about September 19, 2011, the

defendant was convicted of the felony offense

of Burglary of a Dwelling, in Lee County Case

11-CF-16218. On or about December 5, 2013, the

defendant was convicted of the felony offense

of Possession of a Firearm by a Convicted

Felon, in Lee County Case 13-CF-16622. On or

about September 29, 2014, the defendant was

convicted of the felony offenses of Aggravated

Assault with a Firearm, Shooting into a

Building, and Possession of a Firearm by a

Convicted Felon in Lee County Case 13-CF-383.

August 8, 2017

On August 8, 2017, Fort Myers Police

Department (FMPD) Officer William Schulte

conducted a traffic stop on a silver Toyota

Camry appearing to have a tint on its rear

windshield darker than is permitted by Florida

law. Officer Schulte approached the vehicle

and observed two occupants – the driver,

identified as F.B., and the front-seat

passenger, identified as the defendant.

Another officer conducted a driver's license

check on F.B. and determined that his license

was suspended.

Officers Schulte and Zachary Ross searched the

vehicle and located a firearm in the center

console. The firearm was identified as a black

Ruger, 9mm caliber handgun, Model SR9c,

bearing serial number 333-80476. The firearm

was loaded, with one round of Luger ammunition

in the chamber and eight rounds of Luger

ammunition in the attached magazine. Ruger

firearms and Luger ammunition are both

manufactured outside the State of Florida.

Later, FMPD evidence technician Jessica Worthy

was able to lift two latent fingerprints of

value from the magazine that was attached to

the firearm located in the vehicle. The latent

fingerprint cards were sent to the Florida

Department of Law Enforcement (FDLE) for

comparison to the known standards of the

defendant. FDLE latent print analyst Kate

Fahey compared the prints, and concluded that

one of the latent fingerprints lifted from the

magazine matched the defendant's known

fingerprint standards.

January 19, 2018

On January 19, 2018, FMPD Detective Matthew

Schulze, working in an undercover capacity,

observed the defendant in the area of the Race

Trac gas station at 2235 Cleveland Ave. in

Fort Myers. At the time, Det. Schulze knew

that the defendant had an active federal

arrest warrant. Det. Schulze watched as the

defendant exited the Race Trac store, entered

the driver's seat of a black Hyundai Sonata

bearing Florida Tag 8656GW, and drove out of

the gas station parking lot. Det. Schulze

maintained a visual of the vehicle, and

radioed marked units to inform them of the

defendant's presence in the vehicle.

FMPD Officers Brandon Birch and Eric Reitler

pulled their marked patrol vehicle behind the

defendant's black Sonata near the intersection

of High St. and Indian St., and activated

their lights and sirens in an attempt to pull

the vehicle over. Instead of pulling over, the

defendant accelerated his vehicle away from

the patrol vehicle and continued traveling

south on High St. The defendant turned east on

Dr. Martin Luther King Jr. Blvd., and then

turned south on Pauldo St. Officers Birch and

Reitler ultimately disengaged their pursuit

because of the defendant's reckless and

erratic driving, and deactivated their lights

and sirens.

Numerous officers began to search for the

defendant's vehicle in the surrounding area,

and a few minutes later, FMPD Officer Phillip

Youngblood located the vehicle at 2840 South

St. The vehicle was parked in the parking lot

adjacent to a warehouse, and the defendant was

no longer inside the vehicle. FMPD Officer

William Schulte entered the warehouse to

inquire if the defendant had just run inside.

Officer Schulte was advised that a male had

just entered the business, and was pointed in

the direction of the defendant. The defendant

was subsequently arrested by FMPD officers. It

was later determined that the defendant's

five-year-old niece was present in the

defendant's vehicle as he fled from law

enforcement.

FMPD Officers Jason Greene and Miguel

Hernandez searched the black Sonata. Inside

the vehicle, in the center console, Officer

Greene located a loaded black FN Herstal 9mm

handgun, model FNS-9C, bearing SIN CSU0026190.

The firearm was loaded with 16 rounds of Luger

9mm ammunition. Both the FN Herstal firearm

and the Luger ammunition seized in this case

were manufactured outside the State of

Florida. An NCIC check on the firearm revealed

it was stolen. In the front passenger door

side-pocket, Officer Hernandez found eight

small yellow baggies with marijuana.

Inside the trunk of the vehicle, officers

located a grey Gucci backpack containing a

large Ziploc freezer bag containing numerous

different plastic baggies filled with

marijuana, a small digital scale, and various

articles of clothing. The large Ziploc freezer

bag contained nine smaller plastic bags – four

of the bags contained approximately 28 grams

each (1 oz.) of marijuana and five of the bags

contained approximately 14 grams each(½ oz.)

of marijuana. The total weight of the baggies

containing marijuana was approximately 189

grams.

At FMPD headquarters, an FMPD crime scene

technician dusted the plastic baggies and the

firearm/magazine for latent prints. Two latent

prints of value were developed from the

handgun magazine, and three latent prints of

value were developed from the plastic baggies

that were packed with marijuana. FMPD Latent

Print Examiner Trina Maurice concluded that

the two prints lifted from the firearm matched

the standard prints of the defendant, and that

one of the prints lifted from a plastic baggie

found in the backpack containing approximately

one ounce of marijuana also matched the

standard prints of the defendant.

(Id., Cr. Doc. #26, pp. 17-21.) Petitioner admitted these facts

during his guilty pleas. Clearly, there was not a “lack of factual

basis to enter into contract plea agreement.” (Cv. Doc. #1, p.

8.) Ground Four is without merit.

Because petitioner’s allegations are affirmatively

contradicted by the record he is not entitled to an evidentiary

hearing. Aron v. United States, 291 F.3d 708, 715 (11th Cir.

2002).

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. #56) 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 6th day of

April 2022,

Q =e po

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ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Petitioner

AUSA