Calderon-Fuentes v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSE CALDERON-FUENTES,

Movant,

vs. Case No.: 3:20-cv-1397-BJD-JBT

3:17-cr-129-BJD-JBT

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

Jose Calderon-Fuentes (“Calderon”), through counsel, moves under 28

U.S.C. § 2255 to vacate his conviction and sentence. (Civ. Doc. 1, § 2255

Motion.)1 After a four-day trial, a jury convicted him of one count of theft of

government property exceeding $1,000.00 in value and acquitted him of another

charge. Calderon now challenges his conviction and sentence based on the

ineffective assistance of trial counsel. The United States responded in

opposition (Civ. Doc. 11, Response) and Calderon replied (Civ. Doc. 12, Reply).

Thus, the case is ripe for a decision.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255

Proceedings, the Court has considered the need for an evidentiary hearing and

1 “Civ. Doc. #” refers to entries on the civil § 2255 docket, No. 3:20-cv-1397-BJD-JBT.

“Crim. Doc. #” refers to entries on the criminal docket, No. 3:17-cr-129-BJD-JBT.

determines that a hearing is unnecessary to resolve the merits.2 No evidentiary

hearing is required because the allegations are contradicted by the record,

patently frivolous, or would not entitle Calderon to relief even if the facts he

alleges are true. Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); see

also Patel v. United States, 252 F. App’x 970, 975 (11th Cir. 2007).3

I. Facts

Calderon served in the United States Navy from 1974 to 1995. Following

his retirement from the Navy, he requested disability benefits from the

Department of Veterans Affairs (“VA”). (Crim. Doc. 157, Trial Transcript Vol. I

at 130; Gov’t Ex. 1A.) So, on May 7, 1996, the VA performed a “compensation

and pension examination” (“C&P exam”) to determine his eligibility for

disability benefits. Trial Tr. Vol. I at 132–35; Gov’t Ex. 1B.4 The initial exam

determined that Calderon did not qualify for vision-related benefits because his

vision was 20/30 with correction. Gov’t Ex. 1B at 1; Gov’t Ex. 1C at 1.5 Although

2 Rule 8(a) of the Rules Governing Section 2255 Proceedings requires the Court to review

the record, including any transcripts and submitted materials, to determine whether an

evidentiary hearing is warranted before resolving a § 2255 motion.

3 The Court does not rely on unpublished opinions as binding precedent, but they may

be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see 11th Cir. R. 36–2.

4 Transcript citations refer to the page number stamped in the upper righthand corner,

which may differ from the page number provided by CM/ECF.

5 20/20 is considered normal vision. (Crim. Doc. 150, Trial Transcript Vol. III at 87.)

20/30 vision means that a person would have to stand 20 feet away to see an object that

someone with normal vision could see from 30 feet away. See id.

Calderon was diagnosed with bilateral granular corneal dystrophy, a condition

that qualifies for VA benefits, the VA determined that his condition did not

cause a compensable disability. Gov’t Ex. 1C at 1; Trial Tr. Vol. I at 139.

In October 1996, Calderon asked the VA to reconsider its decision to deny

him benefits. Gov’t Ex. 1D. He said that an outside physician, Frank Bowden,

M.D., had determined he was “pretty much blind” and that his vision was 20/70

in both eyes. Id. at 1–2; Trial Tr. Vol. I at 141–42. Based on the records he

submitted, the VA found that Calderon was 30% disabled. Gov’t Ex. 1E.

Over the next four years, Calderon submitted additional records to the

VA, which resulted in gradual increases in his disability rating. He eventually

reached a 100% disability rating based on “visual acuity no better than hand

motion (light perception) in both eyes.” Gov’t Ex. 1I; see also Gov’t Exs. 1F, 1H.

The VA award letters advised Calderon that if he thought its decision was

wrong, he “should write and tell us why.” See Gov’t Ex. 1H at 5; Gov’t Ex. 1I at

6. Because of his 100% disability rating, Calderon received $2,100 more per

month than he would receive with a 90% rating. Trial Tr. Vol. III at 99–101.

Eventually, the VA learned that while Calderon was submitting claims

for increased disability benefits, he was maintaining a Florida commercial

driver’s license, which was valid from 1995 to 2001. Gov’t Ex. 6J. And, on July

10, 2008, Calderon applied for and received a new Florida driver’s license, which

was valid through 2011. Id. Records from the Florida Department of Highway

Safety and Motor Vehicles (“DHSMV”) showed that his vision was 20/70 in both

eyes on that date. Gov’t Ex. 6H at 4; Trial Tr. Vol. II (Crim. Doc. 149) at 227,

229–31. Yet during an eye exam at the VA the next day––July 11, 2008––

Calderon claimed he could only count fingers from one foot away. Def. Ex. 5

(Crim. Doc. 109-3), Bates pp. 731–33; Trial Tr. Vol. IV (Crim. Doc. 151) at 26–

27. Because of the discrepancies between his claims to the VA and his DHSMV

records, the VA launched an investigation.

In May 2011, VA investigators observed Calderon on a walk with his wife,

pushing a stroller. Trial Tr. Vol. I at 160–61; Gov’t Ex. 1J (video recording of

walk). Calderon had a walking stick laying across his shoulders, but he was not

using it to assist him, even though he was walking next to a roadway. Trial Tr.

Vol. I at 164. Calderon spoke to an agent during the walk, gave him directions

after looking (and evidently pointing) at a map, and shook the agent’s hand as

soon as the agent offered it. Id. at 166; see also Gov’t Ex. 1J. Likewise, in August

2011 a VA agent observed Calderon using a leaf blower to clear grass clippings

near the edge of his yard and walking in the street, without assistance from

anyone else. Trial Tr. Vol. I at 173–75; Gov’t Ex. 1L.

In June 2012, at the VA’s request, an agent with Homeland Security

Investigations (HSI) called Calderon and asked to meet him at his home. Trial

Tr. Vol. I at 175–77. Because the VA had learned that Calderon had recently

returned from mission work in Peru, the meeting took place under the guise of

gathering information about his foreign travels. Id. Since the real purpose was

to assess his visual acuity, Calderon was not told that the meeting was related

to the VA’s investigation. Id. at 178–79. An HSI agent and a VA agent went to

Calderon’s home, and when the HSI agent introduced himself, Calderon

inspected that agent’s credentials to confirm his identity. Id. at 178. During the

meeting, Calderon said he had gone on several trips to Honduras and Peru,

where he helped build churches. Id. at 179–80. Calderon stated that his

activities involved mixing cement, laying rebar, using a shovel, and whatever

else was needed. Id. at 180. The agents requested contact information for

another person who had attended these mission trips. Calderon picked up a

Blackberry-type device and, while holding it 18 to 24 inches from his face,

without glasses on, he looked up a contact and showed it to the agents. Id. at

181, 182. The VA agent noticed that the font on the Blackberry device “was

standard size font.” Id. at 181. During the meeting, Calderon also showed the

agents a laminated card that said he was an ordained minister, which Calderon

easily retrieved from his wallet. Id. at 181–82. Near the end of the meeting,

Calderon said, “I was once blind, but God healed me and now I can see.” Id. at

184. As proof, he pointed from five or six feet away to a pen tucked into one of

the agent’s shirt pockets. Id. Calderon mentioned that VA doctors had told him

he could not see, but that they were wrong and he could see. Id. at 185.

In September 2012, a VA agent made a recorded phone call to Calderon.

Trial Tr. Vol. III at 120–24; see also Gov’t Ex. 1O. The agent pretended to be

trying to schedule a vision exam to determine whether his level of benefits was

correct. Gov’t Ex. 1O at 2. During the recorded call, Calderon said, “[M]y level

at the present time is just the light perception and just moving them in [sic] the

large objects and the small objects…. That’s in both eyes.” Id. at 4. He also

stated that his wife drove him and that he “better not be behind no wheel.” Id.

Yet the month after, Calderon paid to renew his automobile insurance policy,

in which he named himself as a driver. Gov’t Ex. 7A.

From October 19 to November 15, 2012, VA agents used a pole camera to

observe the driveway and front of Calderon’s house. Trial Tr. Vol. I at 186–90.

The agents captured over thirty instances of Calderon driving a black pickup

truck registered to him. Id. at 189; see also Gov’t Ex. 1M (pole camera

recordings); Gov’t Ex. 6A (registration). During this same period, he had an eye

examination at the VA. Gov’t Ex. 1R at 1, 3–4. During the exam, his vision in

both eyes was found to be “20/HM@1,” meaning that Calderon claimed he could

see only hand motion one foot from his face. Id. at 3; Trial Tr. Vol. II at 35. Even

so, Calderon drove his truck without apparent difficulty, and longtime

neighbors who saw him driving had no reason to believe he had a serious vision

impairment. See Trial Tr. Vol. III at 46–52, 59–60, 62–68, 81.

In December 2012, a VA agent who had met before with Calderon

returned to his home with another VA agent. Trial Tr. Vol. II at 36–37. When

the agents arrived, Calderon was in the carport working on a boat motor

without the aid of glasses. Id. at 39. The agents identified themselves as from

the VA and asked Calderon if he could discuss his disability rating with them.

Id. He agreed and invited them onto his porch. Id. At first, he said, “I’m not in

the dark, but I am legally blind.” Id. at 41. He said he could perceive some

motion but could not see detail. Id. Calderon then said he could see some detail

within one or two feet. Id. He said his vision was only getting worse over time.

Id. at 62. The VA agents asked Calderon about his work, and he stated that he

did volunteer work for his church, id. at 44, including traveling to Honduras to

build churches, id. at 48. This time, Calderon said his role was “sift[ing] sand,

because I’m unable to do much else….” Id.

When the agents asked Calderon if he could drive, he responded that he

could not and that his wife drove him everywhere. Id. at 41. The agents

confronted him with the fact that they had video of him driving, to which he

responded that he drove only in emergencies and only short distances, which

amounted to three or four times a month (although the pole camera captured

33 instances in a 28-day period). Id. at 53–54. He also admitted that he had

driven to Naval Air Station Jacksonville, which is about seven miles from his

house. Id. at 55, 61. When asked how he could drive on the freeway to the base,

he answered, “I don’t drive on the freeway that fast.” Id. at 56. When asked if

he had a driver’s license, Calderon said he had one, but he did not use it. Id. at

43. An agent asked how he passed the vision exam to obtain a driver’s license

in 2008, and Calderon at first said he had memorized the chart. Id. When

reminded the exam was conducted by machine instead of by chart, he stated he

had memorized what the person in front of him said. Id. at 43–44. Eventually,

Calderon admitted that when he got his driver’s license in 2008, he knew his

VA disability benefits were greater than they should have been. Id. at 62–63.

Calderon sought the services of an attorney following this interview. On

December 14, 2012, he completed a “New Client Information Form” for the Law

Office of Mark Rosenblum, P.A. (Civ. Doc. 1-1, Petitioner’s Exhibit [Pet. Ex.] 1.)

In April 2013, the VA performed a C&P exam to reconsider the amount

of benefits Calderon was receiving. Calderon states that his attorney, Mr.

Rosenblum, and Mr. Rosenblum’s associate, Vanessa Newtson, knew he was

under investigation by the VA and the United States Attorney’s Office, but

neither attorney advised him against attending the exam or told him his

statements could be used against him in a criminal investigation. § 2255 Motion

at 11. During this exam, Calderon claimed he could not read the top line of the

vision chart––a large letter “E”––which would mean his vision was worse than

20/400. Trial Tr. Vol. II at 71–72, 150; see also Gov’t Ex. 3A (video recording of

C&P exam); Gov’t Ex. 3B at 11–12 (exam transcript). When asked if he drove,

he answered, “I don’t. I shouldn’t be driving at all,” but added “my wife got sick

one time and I have to get behind the wheel.” Gov’t Ex. 3B at 14–15.

Just two months after the above VA exam, Calderon obtained a driver’s

license in Puerto Rico. Gov’t Ex. 9A; Trial Tr. Vol. III at 153–54, 156. To obtain

a driver’s license in Puerto Rico, the territory requires an applicant to obtain a

medical certification from a private doctor. Trial Tr. Vol. III at 149–50.

According to documents he submitted to Puerto Rico’s authorities, Calderon’s

vision was 20/50 during an examination on June 11, 2013. Gov’t Ex. 9A at 2;

Trial Tr. Vol. III at 157. About a month after receiving the driver’s license in

Puerto Rico, Calderon had another eye exam at the VA. Def. Ex. 5 at Bates p.

699; Trial Tr. Vol. IV at 28. Yet, during this exam, he performed in a way that

his vision was no better than 1/700, or 20/14,000. Def. Ex. 5 at Bates p. 701;

Trial Tr. Vol. IV at 28–29.

On September 10, 2013, the VA informed Calderon it was reducing his

disability rating from 100% to 30%, resulting in a $3,500 monthly reduction in

benefits. Gov’t Ex. 1T at 1. In response, he returned to see his private

ophthalmologist, Dr. Bowden. See Trial Tr. Vol. II at 116–17. Based partly on

subjective testing, Dr. Bowden determined that Calderon could “count fingers

at one foot.” Id. at 123–24. Using Dr. Bowden’s report, Calderon requested that

the VA restore his 100% disability rating. Gov’t Ex. 2B.

While treating Calderon, Dr. Bowden recommended that he undergo a

type of laser eye surgery called “PTK,”6 but Calderon never did so, explaining

that he was trying to get the VA to pay for the surgery. Trial Tr. Vol. II at 126.

But there was no record of Calderon requesting that the VA pay for a PTK

procedure. Trial Tr. Vol. III at 126–27. Calderon also told Dr. Bowden that he

could not drive because of his eyesight. Trial Tr. Vol. II at 121; Gov’t Ex. 2A at

1. Dr. Bowden’s records contained no indication that Calderon mentioned he

had obtained a driver’s license in Puerto Rico just a few months earlier and had

20/50 vision. See Gov’t Ex. 2A.

According to Calderon, his attorneys (Mr. Rosenblum and Ms. Newtson)

met with an Assistant U.S. Attorney on June 3, 2014, and the next day the

government offered for Calderon to plead guilty to a felony information. § 2255

Motion at 6, 7. The offer was open until June 30, 2014. Id. at 7. However,

Calderon’s attorneys never communicated the offer to him. Id. On July 1, 2014,

Calderon signed a representation agreement with Mr. Rosenblum’s office, in

which Calderon agreed to pay a $30,000.00 retainer. (Civ. Doc. 1-2, Pet. Ex. 2.)

Calderon paid $15,000.00 up front and agreed to pay the remainder in $1,000.00

monthly installments. Id.

6 “PTK” stands for phototherapeutic keratectomy.

Two years later, in December 2016, the government tentatively offered

Calderon the opportunity to participate in a pretrial diversion program. § 2255

Motion at 6. Under pretrial diversion, Calderon could avoid criminal charges by

admitting making a false statement, being remorseful, and successfully

completing up to 18 months of pretrial diversion. (See Civ. Doc. 1-5, Pet. Ex. 5;

Civ. Doc. 1-6, Pet. Ex. 6.) Calderon’s attorneys notified him of the pretrial

diversion offer but Calderon rejected it. See § 2255 Motion at 6–7, 16–17. Then,

on June 26, 2017, Mr. Rosenblum conveyed to Calderon a government offer to

plead guilty to one count of making a false statement. Id. at 9. Mr. Rosenblum,

who had since joined the Federal Public Defender’s Office, also notified

Calderon that the Federal Public Defender’s Office would take over the case

(with Mr. Rosenblum remaining as counsel). See id. Calderon rejected this plea

offer as well. Id.

On July 13, 2017, a federal grand jury returned a two-count indictment

against Calderon, charging him with one count of theft of government property

exceeding $1,000.00 in value, in violation of 18 U.S.C. § 641 (Count One), and

one count of making a false statement during the VA investigation, in violation

of 18 U.S.C. § 1001 (Count Two). (Crim. Doc. 1, Indictment.) Calderon, assisted

by Mr. Rosenblum, pleaded not guilty. Through counsel, he moved to dismiss

Count One to the extent it involved conduct that fell outside the statute of

limitations period, i.e., before July 13, 2012. (Crim. Doc. 26, Motion to Dismiss

Indictment.) The Court partially granted the Motion and dismissed Count One

to the extent it charged Calderon with a crime for conduct that occurred before

July 13, 2012. (Crim. Doc. 43, Order on Motion to Dismiss Indictment.)

Calderon also moved to suppress evidence and statements gathered as a result

of warrantless “knock and talk” procedures used by VA and HIS agents on June

13, 2012, and December 10, 2012. (Crim. Doc. 27, Motion to Suppress.) The

Court denied that motion following an evidentiary hearing at which Calderon

testified. (See Crim. Doc. 71, Order Denying Motion to Suppress.) The Court

later found that Calderon’s testimony at the suppression hearing––where he

accused federal agents of various misdeeds––was false and was an attempt to

obstruct the proceedings. (Crim. Doc. 119, Presentence Investigation Report

[“PSR”] ¶ 37; Crim. Doc. 142, Sentencing Transcript at 24–26.)

The case went to a four-day jury trial in June 2018. The government

argued that for years, Calderon falsely claimed to be disabled because of

blindness in both eyes so he could illegally obtain increased VA benefits, and

that he lied to a VA agent about the severity of his visual impairments. The jury

heard from over twenty witnesses, including Charles Arbogast (the lead VA

agent who investigated Calderon), Dr. Bowden, Dr. Wong (the VA optometrist),

and Calderon’s neighbors. In the end, the jury convicted Calderon of Count One

of the Indictment and acquitted him of Count Two. (Crim. Doc. 111, Jury

Verdict.)

The Court sentenced Calderon to a term of five years’ probation, including

one year of home confinement, and ordered him to pay restitution to the VA in

the amount of $43,881.00. (Crim. Doc. 128, Judgment.) The Court also entered

an order of forfeiture for $43,881.00. (Crim. Doc. 130, Order of Forfeiture.)

Calderon appealed his conviction and sentence, arguing that

(1) the district judge should have reheard the testimony regarding his

motion to suppress anew; (2) the district court erred in denying his

motion to suppress because his consent was coerced and unwilling; (3)

the district court denied him the right to present a complete defense by

excluding as demonstrative evidence low vision simulators that were

relevant, not prejudicial, and would have aided the jury in understanding

the physical principles involved in having low vision; and (4) the evidence

was insufficient to sustain the jury’s verdict.

United States v. Calderon-Fuentes, 788 F. App’x 630, 632 (11th Cir. 2019). The

Eleventh Circuit rejected each argument and affirmed Calderon’s conviction

and sentence. Id. at 632–37. He did not seek certiorari review from the Supreme

Court. These § 2255 proceedings timely followed.

II. Governing Law

Under Title 28, United States Code, Section 2255, a person in federal

custody may move to vacate, set aside, or correct his sentence. Section 2255

permits collateral relief on four grounds: (1) the sentence was imposed in

violation of the Constitution or laws of the United States; (2) the court lacked

jurisdiction to impose the sentence; (3) the imposed sentence exceeded the

maximum authorized by law; or (4) the imposed sentence is otherwise subject

to collateral attack. 28 U.S.C § 2255(a) (2008). Only jurisdictional claims,

constitutional claims, and claims of error that are so fundamentally defective

as to cause a complete miscarriage of justice warrant relief through collateral

attack. United States v. Addonizio, 442 U.S. 178, 184–86 (1979); Spencer v.

United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc) (“[A] district court

lacks the authority to review the alleged error unless the claimed error

constitute[s] a fundamental defect which inherently results in a complete

miscarriage of justice.” (internal quotation marks omitted)). A petitioner’s claim

that he received ineffective assistance of counsel in violation of the Sixth

Amendment is properly brought in a collateral proceeding under § 2255.

Massaro v. United States, 538 U.S. 500, 504 (2003).

To establish ineffective assistance of counsel, a § 2255 movant must

establish both: (1) that his counsel’s conduct amounted to constitutionally

deficient performance, and (2) that counsel’s deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). In

determining whether counsel performed deficiently, the Court adheres to the

standard of reasonably effective assistance. Weeks v. Jones, 26 F.3d 1030, 1036

(11th Cir. 1994) (citing Strickland, 466 U.S. at 688). The petitioner must show,

given all the circumstances, that counsel’s performance fell outside the “wide

range of professionally competent assistance.” Scott v. United States, 890 F.3d

1239, 1258 (11th Cir. 2018) (internal quotation marks and citation omitted). In

other words, “[t]he standard for effective assistance of counsel is

reasonableness, not perfection.” Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th

Cir. 2019) (citing Strickland, 466 U.S. at 687). To show that counsel’s deficient

performance prejudiced the defense, the petitioner must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694. In determining whether a petitioner

has met the two prongs of deficient performance and prejudice, the Court

considers the totality of the evidence. Id. at 695. Because both prongs are

necessary, “there is no reason for a court… to approach the inquiry in the same

order or even to address both components of the inquiry if the defendant makes

an insufficient showing on one.” Id. at 697.

A § 2255 movant “bears the burden to prove the claims in his § 2255

motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also

Beeman v. United States, 871 F.3d 1215, 1221–23 (11th Cir. 2017). If “‘the

evidence does not clearly explain what happened … the party with the burden

loses.’” Beeman, 871 F.3d at 1225 (citation omitted). A § 2255 movant is not

entitled to a hearing, much less relief, “when his claims are merely conclusory

allegations unsupported by specifics or contentions that in the face of the record

are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)

(citation omitted).

III. Discussion

Calderon raises four grounds for relief in his § 2255 Motion, all alleging

he was deprived of his Sixth Amendment right to the effective assistance of

counsel. First, he claims that his attorneys failed to properly advise him of the

government’s pretrial diversion offer in December 2016. § 2255 Motion at 6–7,

16–23. Calderon acknowledges that his attorneys informed him of the offer, id.

at 6, and that they “advised [him] that the pretrial diversion offer was a good

offer,” id. at 17. However, he alleges that counsel failed to spell out for him that

the pretrial diversion offer would allow him to avoid a conviction and criminal

charges. Id. at 6. Calderon asserts that he rejected the pretrial diversion offer

because he thought it would result in a felony conviction. Id. He contends that

if his attorneys had advised him that pretrial diversion would allow him to avoid

a conviction, he would have accepted the offer. Id. at 7.

Second, Calderon alleges that his attorneys operated under a conflict of

interest because their personal financial interests were inconsistent with his

own. Id. at 7–10, 23–26. In essence, he argues that his attorneys’ interest in

getting paid caused them not to properly advise him about two pre-indictment

offers to resolve the case. He alleges that his attorneys did not convey to him

the government’s June 2014 plea offer, which expired just before Calderon

signed the $30,000 retainer agreement, because he would not have signed the

retainer agreement had he accepted that offer. Id. at 10, ¶ 18; id. at 23–24. But

Calderon does not allege that he would have accepted this offer had it been

relayed to him; indeed, he later rejected a pretrial diversion offer in 2016 and

another plea offer in June 2017. He also alleges that his attorneys failed to fully

advise him about the 2016 pretrial diversion offer––or failed to start negotiating

a pretrial diversion offer earlier––because Calderon’s acceptance of that offer

would have required counsel to refund the unearned portion of the retainer. Id.

at 10, ¶ 18; id. at 24–26.7 But Calderon admits that, despite his attorneys’

alleged inconsistent financial interests, they “advised [him] that the pretrial

diversion offer was a good offer.” Id. at 17.

Third, Calderon alleges that his attorneys failed to inform him that any

information the VA gained from the April 2013 C&P exam could be used against

him in a criminal investigation. Id. at 11–13, 26–28. He argues––questionably

it seems––that because “C&P exams are not required once a veteran obtains

100% disability … it was clear this exam was another ruse by the Government

to collect evidence of a crime.” Id. at 27.8 Thus, Calderon argues that counsel

7 Some portion of the retainer must have been refundable, Calderon says, because under

Rule 4-1.5(e)(1) of the Rules Regulating the Florida Bar, for a retainer to be non-refundable it

must be in writing. Since the retainer agreement said nothing about non-refundability,

Calderon says that “any unearned portion would need to be refunded.” § 2255 Motion at 24.

8 In fact, no veteran is entitled to continue receiving benefits indefinitely if “the original

grant [of benefits] was based on fraud….” 38 C.F.R. § 3.957. The VA will request a

reexamination “whenever VA determines there is a need to verify either the continued

existence or the current severity of disability.” Id., § 3.327. “Generally, reexaminations will be

required … if evidence indicates … that the current rating may be incorrect.” Id. “Individuals

for whom reexaminations have been authorized and scheduled are required to report for such

examinations.” Id. (emphasis added). If a recipient fails to report, his or her benefits may be

should have known that the April 2013 C&P exam was related solely to a

criminal investigation and advised Calderon against attending it. He points out

that counsel later advised Calderon against attending a 2014 VA exam with a

different doctor because “it had the potential to create more evidence for the

Government.” Id. at 27 (citing Pet. Ex. 9). He argues that “[t]his was clearly

reasonable advice that should have been given to Calderon-Fuentes at the

initial C&P exam.” Id.

Fourth, Calderon alleges that his lead attorney, Mr. Rosenblum, was

ineffective at trial because he failed to ask certain follow-up questions of Dr.

Bowden on cross-examination. Id. at 13–15, 29–31. He also alleges that Mr.

Rosenblum was ineffective because he failed to follow up with Dr. Wong about

the results of a so-called optokinetic nystagmus (“OKN”) drum test. Id. Finally,

Calderon argues that the cumulative effect of his attorneys’ errors prejudiced

him. Id. at 31–32.

The government argues that Grounds One through Three fail as a matter

of law because the Sixth Amendment right to counsel had not attached when

the alleged deficiencies occurred. Response at 11–15. The government also

argues that each ground fails on the merits. Id. at 15–25.

reduced or “discontinued” entirely. Id., § 3.655(a), (c). As a result, it would not have been clear

to Calderon or his attorneys that the VA’s April 2013 C&P exam was nothing but a ruse to

gain information for a criminal investigation.

A. The right to the assistance of counsel had not attached at the

times relevant to Grounds One, Two, and Three

As discussed above, in Grounds One through Three, Calderon accuses his

attorneys of various failings that manifested themselves between December

2012 (when Calderon first engaged counsel) and December 2016 (when counsel

allegedly failed to fully explain the government’s pretrial diversion offer). All

these things occurred while Calderon was under investigation by the VA, but

months or years before Calderon was indicted. Because the Sixth Amendment

right to counsel had not attached at the relevant times, these grounds are not a

basis for relief from his conviction and sentence under 28 U.S.C. § 2255.

The Sixth Amendment to the United States Constitution guarantees that

“[i]n all criminal prosecutions, the accused shall enjoy the right … to have the

Assistance of Counsel for his defence.” U.S. Const., amend. VI. The key phrase

here is “[i]n all criminal prosecutions.” The Supreme Court has said repeatedly

that the Sixth Amendment right to counsel “does not attach until a prosecution

is commenced, that is, at or after the initiation of adversary judicial criminal

proceedings––whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.” McNeil v. Wisconsin, 501 U.S. 171,

175 (1991) (internal quotation marks omitted) (quoting United States v.

Gouveia, 467 U.S. 180, 188 (1984)); see also Moran v. Burbine, 475 U.S. 412,

428–32 (1986) (holding that Sixth Amendment right to counsel did not attach

to pre-indictment interrogation, even though suspect had retained counsel);

Maine v. Moulton, 474 U.S. 159, 176–80 (1985) (defendant’s uncounseled

statements, which were obtained by an informant, were inadmissible as to

offenses for which defendant had been indicted but remained admissible as to

offenses for which he had not yet been indicted); Kirby v. Illinois, 406 U.S. 682,

689 (1972) (plurality opinion) (concluding that Sixth Amendment right to

counsel did not attach to a post-arrest, pre-indictment lineup identification

procedure). “[A] criminal defendant’s initial appearance before a judicial officer,

where he learns the charge against him and his liberty is subject to restriction,

marks the start of adversary judicial proceedings that trigger attachment of the

Sixth Amendment right to counsel.” Rothgery v. Gillespie Cnty., Tex., 554 U.S.

191, 213 (2008).

The “conclusion that the right to counsel attaches at the initiation of

adversary judicial criminal proceedings ‘is far from a mere formalism.’”

Gouveia, 467 U.S. at 189 (quoting Kirby, 406 U.S. at 689). As the Supreme

Court explains,

It is only at that time “that the government has committed itself to

prosecute, and only then that the adverse positions of government and

defendant have solidified. It is then that a defendant finds himself faced

with the prosecutorial forces of organized society, and immersed in the

intricacies of substantive and procedural criminal law.”

Id. (quoting Kirby, 406 U.S. at 689).

At the time of the attorneys’ errors alleged in Grounds One through

Three, none of the events that marks the beginning of “adversary judicial

criminal proceedings” had occurred yet. During the four-plus years before the

Indictment, Calderon alleges that his attorneys failed to properly explain the

government’s December 2016 pretrial diversion offer; developed a financial

conflict of interest, which caused them not to convey the government’s June

2014 plea offer and not to properly explain the 2016 pretrial diversion offer; and

failed to advise him against the hazards of attending the VA’s April 2013 C&P

exam. He claims these errors deprived him of his Sixth Amendment right to the

effective assistance of counsel. § 2255 Motion at 6–13. But before July 13, 2017

(the date the grand jury returned the indictment), Calderon had not been

formally charged with any crime, whether by indictment, information, or

criminal complaint. He had not been arraigned. And he had not appeared before

a judicial officer for any preliminary criminal hearing. Nor, for that matter, had

he been detained or subject to an arrest warrant. Although Calderon was under

investigation by the VA, federal authorities were still gathering evidence and

the government had not yet formally charged him with any offenses. Thus, the

Sixth Amendment right to counsel had not attached. Because the Sixth

Amendment’s guarantee of the right to counsel had not attached at the relevant

times, Grounds One through Three do not state a violation of the Sixth

Amendment right to counsel.

Although Calderon retained criminal defense counsel years before he was

indicted, while the VA’s investigation was ongoing, that fact does not cause the

Sixth Amendment right to counsel to attach any earlier. As the Supreme Court

said in Moran,

[T]he suggestion that the existence of an attorney-client relationship

itself triggers the protections of the Sixth Amendment misconceives the

underlying purposes of the right to counsel. The Sixth Amendment's

intended function is not to wrap a protective cloak around the attorney-

client relationship for its own sake any more than it is to protect a suspect

from the consequences of his own candor. Its purpose, rather, is to assure

that in any “criminal prosecutio[n],” U.S. Const., Amdt. 6, the accused

shall not be left to his own devices in facing the “‘prosecutorial forces of

organized society.’” Maine v. Moulton, supra, 474 U.S., at 170, 106 S. Ct.,

at 484 (quoting Kirby v. Illinois, supra, 406 U.S., at 689, 92 S. Ct., at

1882). By its very terms, it becomes applicable only when the

government’s role shifts from investigation to accusation. For it is only

then that the assistance of one versed in the “intricacies ... of

law,” ibid., is needed to assure that the prosecution's case encounters “the

crucible of meaningful adversarial testing.” United States v. Cronic, 466

U.S. 648, 656, 104 S. Ct. 2039, 2045, 80 L. Ed. 2d 657 (1984).

Moran, 475 U.S. at 430.

Calderon admits that “the Supreme Court has never found [that] a Sixth

Amendment right to counsel applies to pre-indictment proceedings.” Reply at 1.

At any rate, he argues that a Sixth Amendment right to counsel should attach

at least to pre-indictment plea negotiations. He puts forth several reasons for

doing so, including that: (1) “[p]lea negotiations are the most important stage

in criminal proceedings, frequently being the only stage”; (2) unrepresented

defendants are at a disadvantage when engaging in plea negotiations with an

experienced prosecutor; and (3) pre-charge plea bargaining requires intricate

knowledge of the law and the legal consequences of a conviction (such as

potential immigration consequences and sentencing exposure). Id. at 2. He

argues that “[t]he same logical underpinnings of Frye[9] and Lafler[10] are

applicable in pre-indictment plea negotiations; thus, the right to counsel should

attach.” Id. at 3.

This argument “makes the fundamental ‘mistake’ of confusing the ‘critical

stage question’ with the ‘attachment question.’” Turner v. United States, 885

F.3d 949, 953 (6th Cir. 2018) (en banc) (quoting Rothgery, 554 U.S. at 211). The

Supreme Court stresses that these questions are distinct. Rothgery, 554 U.S. at

211–12. It is true that, for many of the reasons Calderon puts forth, the

Supreme Court held in Frye, 566 U.S. 134, and Lafler, 566 U.S. 156, that plea

negotiations are a critical stage of the proceedings for Sixth Amendment

purposes. The Supreme Court extended the right to the effective assistance of

counsel to plea bargaining because it recognized that plea negotiations have

become “central to the administration of the criminal justice system” and

frequently determine “who goes to jail and for how long,” often making plea

negotiations “the only stage when legal aid and advice would help” criminal

defendants. Frye, 566 U.S. at 143–44; see also Lafler, 566 U.S. at 169–70

(observing “the reality that criminal justice today is for the most part a system

9 Missouri v. Frye, 566 U.S. 134 (2012).

10 Lafler v. Cooper, 566 U.S. 156 (2012).

of pleas, not a system of trials.”). But in Frye and Lafler, the plea negotiations

occurred after the defendants had been formally charged. Frye, 566 U.S. at 138;

Lafler, 566 U.S. at 161. Neither case dealt with when the Sixth Amendment

right to counsel attaches.

Frye and Lafler establish that post-indictment plea negotiations are a

“critical stage” of the proceedings, but it does not follow that the Sixth

Amendment right to counsel attaches to pre-indictment plea negotiations.

Indeed, a procedure that counts as a “critical stage” of the proceedings if it

occurs after indictment may be one where no Sixth Amendment right to counsel

attaches if it occurs before indictment. Take interrogations and pretrial lineups

for example. When they occur after adversarial judicial criminal proceedings

have begun, they are critical stages of the proceedings at which a defendant has

a Sixth Amendment right to the assistance of counsel. Massiah v. United States,

377 U.S. 201, 204–06 (1964) (post-indictment interrogation); United States v.

Wade, 388 U.S. 218, 236–37 (1966) (post-indictment lineup). The Supreme

Court recognizes interrogations and lineups as critical stages of the proceedings

because these are “stages in the criminal justice process ‘where the results

might well settle the accused’s fate and reduce the trial itself to a mere

formality,’” and where “depriv[ing] a person of counsel … may be more

damaging than denial of counsel during the trial itself.” Moulton, 474 U.S. at

170 (quoting Wade, 388 U.S. at 224). Yet the same procedures do not implicate

the Sixth Amendment right to counsel when they occur before adversarial

judicial criminal proceedings have begun. Moran, 475 U.S. at 428–32 (Sixth

Amendment right to counsel did not attach to pre-indictment interrogation);

Kirby, 406 U.S. at 689 (Sixth Amendment right to counsel did not attach to pre-

indictment lineup). Likewise, that post-indictment plea negotiations qualify as

a critical stage of the proceedings does not mean that the Sixth Amendment

right to counsel attaches to pre-indictment plea negotiations. See, e.g., Turner,

885 F.3d at 953 (reaffirming the court’s “long-standing rule that the Sixth

Amendment right to counsel does not extend to preindictment plea

negotiations” because “[t]he Supreme Court’s attachment rule is crystal clear”

that “a person’s Sixth Amendment right to counsel ‘attaches only at or after the

time that adversary judicial proceedings have been initiated against him.’”

(quoting Gouveia, 467 U.S. at 187)); United States v. Olson, 988 F.3d 1158,

1162–63 (9th Cir. 2021) (same); Kennedy v. United States, 756 F.3d 492, 493–

94 (6th Cir. 2014) (same); see also United States v. Waldon, 363 F.3d 1103, 1112

n.3 (11th Cir. 2004) (rejecting “out-of-hand” defendant’s Sixth Amendment

ineffective assistance claim relating to a subpoena to testify before a grand jury,

before he was formally charged, “because the Sixth Amendment right to counsel

simply does not attach until the initiation of formal adversary proceedings.”).

Nothing about the Supreme Court’s decisions in Frye and Lafler erased

the distinction between pre-indictment proceedings and post-indictment

proceedings for purposes of when the Sixth Amendment right to counsel

attaches. As the Sixth Circuit observed,

If anything, Frye and Lafler accept the rule that the right to counsel does

not attach until the initiation of adversary judicial proceedings. Neither

decision expressly abrogates or questions the rule…. [R]ecognizing that

the Sixth Amendment guarantees a right to counsel at “all critical stages

of [a] criminal proceeding[ ],” Frye explained that those critical stages

include “arraignments, postindictment interrogations, postindictment

lineups, and the entry of a guilty plea.” Frye, 132 S. Ct. at 1405 (internal

quotations omitted) (emphasis added). Had the Supreme Court erased

the line between preindictment and postindictment proceedings for plea

negotiations, it surely would have said so given its careful attention to

the distinction for interrogations and lineups.

Kennedy, 756 F.3d at 493–94. Thus, Frye and Lafler do not support a conclusion

that the Sixth Amendment right to counsel applies to pre-indictment plea

discussions.

Calderon also argues that the Sixth Amendment right to counsel should

attach to pre-indictment plea negotiations because plea negotiations mark a

shift in the government’s role from investigation to accusation––a point when a

suspect begins to face organized prosecutorial forces. Reply at 2–3. This

argument is tautological. But more important, pre-indictment plea negotiations

are not necessarily any more accusatory than pre-indictment interrogations and

lineups, and society’s organized prosecutorial forces no less involved. Moreover,

the Sixth Amendment right to counsel is “offense specific,” applying only to

those offenses for which adversarial judicial proceedings have begun. McNeil,

501 U.S. at 175. Pre-indictment plea negotiations, if they occur, necessarily

happen before a suspect has been formally charged with an offense and will

often involve a back-and-forth between the suspect and prosecutor about what

offense(s) the suspect will admit (if any). As a practical matter then, it is hard

to see how the offense-specific Sixth Amendment right to counsel can apply to

such negotiations when it has not yet been fixed what offense(s) the suspect will

admit or be charged with.

Returning to first principles, the rule that the Sixth Amendment right to

counsel attaches only once adversarial judicial proceedings have begun is not “a

mere formalism.” Gouveia, 467 U.S. at 189. It derives from the Sixth

Amendment’s text, which says that the right to have the assistance of counsel

applies to the “accused” “[i]n all criminal prosecutions.” U.S. Const., amend. VI.

A “criminal prosecution” begins “by way of formal charge, preliminary hearing,

indictment, information, or arraignment,” or some similar “adversary judicial

criminal proceeding.” McNeil, 501 U.S. at 175. Only then has “the government

committed itself to prosecute,” “that the adverse positions of government and

defendant have solidified,” and “that a defendant finds himself faced with the

prosecutorial forces of organized society, and immersed in the intricacies of

substantive and procedural criminal law.” Gouveia, 467 U.S. at 189 (quoting

Kirby, 406 U.S. at 689). Before the grand jury indicted Calderon, the

government had not committed itself to prosecuting him, and the adverse

positions of Calderon and the government had not solidified. The fact that the

government offered Calderon pretrial diversion in December 2016 proves as

much. Under the pretrial diversion offer, the government would have held any

charges in abeyance pending completion of pretrial diversion and, if Calderon

successfully completed the program, the government would not have brought

charges at all. See Pet. Ex. 6. That, by itself, shows that the government was

not committed to prosecuting Calderon.

Although Calderon was dealing with a prosecutor during the pre-

indictment negotiations, he was not “faced with the prosecutorial forces of

organized society” to the same degree as a defendant facing formal charges.

Gouveia, 467 U.S. at 189. Without an indictment or formal charge, the

government remained free not to pursue any charges, as reflected by the

pretrial diversion offer. Nor was Calderon “immersed in the intricacies of

substantive and procedural criminal law” to the same extent as a defendant

facing formal charges (at least, no more so than the defendants involved in pre-

indictment lineups and interrogations in Kirby and Moran). For example, the

Federal Rules of Criminal Procedure apply only in “criminal proceedings in the

United States district courts, the United States courts of appeals, and the

Supreme Court of the United States.” Fed. R. Crim. P. 1(a)(1). Before Calderon

was indicted, he was not involved in any proceedings in the United States

courts: he had not been arrested or subject to an arrest warrant, he had not

been arraigned, nor had he been required to appear before any federal judicial

officer. As far as Calderon was concerned, he was not immersed in the

intricacies of federal criminal procedure. Thus, before Calderon’s indictment,

the core concerns that trigger the Sixth Amendment right to counsel had not

come into play. See Gouveia, 467 U.S. at 189.

Also worth a reminder is the “offense specific” nature of the Sixth

Amendment right to counsel. McNeil, 501 U.S. at 175. Even if the pre-

indictment plea negotiations between Calderon’s attorneys and the prosecutor

amounted to a formal accusation of a crime, the only offense discussed in pre-

indictment negotiations was the crime of making a false statement. Calderon

does not say what offense the government’s June 2014 plea offer involved, but

the December 2016 pretrial diversion offer and the June 2017 plea offer both

involved Calderon pleading or admitting guilt to making a false statement. See

§ 2255 Motion at 6–9; see also Pet. Exs. 4, 5. But in the end, Calderon was

acquitted of that charge and convicted of a different charge: theft of government

property exceeding $1,000.00 in value. Thus, even if the Sixth Amendment right

to counsel attached sometime before Calderon was indicted, it attached only to

the charge of making a false statement—of which he was ultimately acquitted—

and not the charge of theft of government property—of which he was convicted

and sentenced.11

In short, the Sixth Amendment right to counsel does not attach until the

beginning of “adversary judicial criminal proceedings.” McNeil, 501 U.S. at 175;

Gouveia, 467 U.S. at 188. In Calderon’s case, no adversarial judicial criminal

proceedings had begun before he was indicted, so the Sixth Amendment right

to counsel did not attach before then. Because Grounds One through Three

center on the alleged failings of Calderon’s attorneys in the months and years

before the initiation of adversarial judicial criminal proceedings, they do not

state a Sixth Amendment violation.12 As a result, these claims do not warrant

11 If a defendant has been formally charged with a crime, the Sixth Amendment right to

counsel “encompass[es] offenses that, even if not formally charged, would be considered the

same offense under the … test” set out in Blockburger v. United States, 284 U.S. 299 (1932).

Texas v. Cobb, 532 U.S. 162, 173 (2001). Even if Calderon could be considered to have been

formally charged with making a false statement before he was indicted, the Sixth Amendment

right to counsel would not have extended to the crime of theft of government property

exceeding $1,000.00 in value. That is because the two offenses are distinct in that “each

[statutory] provision requires proof of a fact which the other does not.” Blockburger, 284 U.S.

at 304; compare 18 U.S.C. § 641 (theft of government property exceeding $1,000.00) with 18

U.S.C. § 1001 (making a false statement).

12 As to Calderon’s conflict-of-interest claim in Ground Two, he does not allege that

inconsistent financial interests affected his counsel’s performance post-indictment. See § 2255

Motion at 7–10, 23–26. (The Court also doubts that the fee agreement created an actual

conflict of interest, but the Court has assumed so for simplicity’s sake.) To establish a violation

of the Sixth Amendment right to the effective assistance of counsel based on a conflict of

interest, Calderon, who did not raise an objection at trial, “must demonstrate that an actual

conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S.

335, 348 (1980). Calderon identifies two ways that his attorneys’ alleged inconsistent financial

interests adversely affected their performance, both of which occurred before indictment: (1)

by causing counsel not to communicate the government’s June 2014 plea offer, and (2) by

causing counsel not to fully advise him about the December 2016 pretrial diversion offer.

Because Calderon does not identify how inconsistent financial interests adversely affected his

counsel’s performance post-indictment, Ground Two does not state a violation of the Sixth

Amendment right to counsel any more than Grounds One and Three. (cont’d)

§ 2255 relief.

B. Ground Four: Failing to cross-examine Dr. Bowden and Dr.

Wong on certain topics

Turning to Ground Four, Calderon alleges that Mr. Rosenblum gave

ineffective assistance at trial by failing to cross-examine two of the

government’s medical provider witnesses––Dr. Bowden and Dr. Wong––about

certain topics. § 2255 Motion at 13–15, 29–31. He alleges that there is a

reasonable probability the outcome of the trial would have been different had

counsel done so.

1. Dr. Bowden’s Testimony (Trial Tr. Vol. II at 116–33)

Dr. Bowden, an ophthalmologist in Jacksonville, testified that Calderon

was his patient for a time in the 1990’s and for a period beginning in 2013. Trial

Tr. Vol. II at 116–17. He testified about an exam he performed on Calderon on

October 16, 2013 (when Calderon was asking the VA to reinstate his 100%

disability rating). Id. at 118. Calderon reported that he had been diagnosed with

granular corneal dystrophy, id. at 119, and that he could read only with a

magnifier, was bothered by glare, would see “ghosts” or multiple images, and

Indeed, after Calderon was indicted, Mr. Rosenblum zealously fought the charges. He

moved to dismiss the indictment (and partly succeeded in doing so), moved to suppress

evidence (which was heavily litigated), took the case to a four-day jury trial (which resulted in

an acquittal on one of the two charges), and secured a sentence of five years’ probation with

one year of home confinement (when the guidelines range was 33 to 41 months’ imprisonment

and the government was urging the Court to impose a prison term as part of the punishment,

see Sentencing Tr. at 41–46).

had difficulty “making individual faces” or distinguishing males from females

at a distance, id. at 120–21. Based on objective and subjective tests, Dr. Bowden

determined that Calderon could count fingers from one foot away, which is

worse than 20/800 vision. See id. at 121–24. Objective testing consisted of

looking into Calderon’s eyes and checking for opacities on the corneas (a telltale

sign of granular corneal dystrophy), as well as inspecting the optic nerve and

checking for signs of a retinal disorder. Id. at 119–20, 121–22. But, Dr. Bowden

testified, because objective testing alone cannot determine how well a person

can see, he performed subjective tests as well, which depend on the patient to

provide truthful feedback about whether he can perceive certain stimuli. See id.

at 120, 122–23. Dr. Bowden testified that he relied on the information Calderon

provided during subjective testing. Id. at 123, 124. Calderon did not tell Dr.

Bowden that he drove, worked on his car and boat, or went on mission trips to

work on construction projects. Id. at 127.

Dr. Bowden testified that he discussed three surgical options with

Calderon: a corneal transplant, PTK laser surgery (to remove or lessen corneal

deposits), and a surgery to repair dry eyelids, and that he recommended the

PTK procedure and dry eyelid procedure. Id. at 125–26. Dr. Bowden recalled

that Calderon consented to the dry eyelid procedure, which was not covered by

his health insurance, and he led Dr. Bowden to believe he would obtain coverage

for the PTK procedure from the VA. Id. at 126. Calderon never obtained the

PTK procedure as far as Dr. Bowden knew. Id. Dr. Bowden said he thought it

was unusual to have a patient “with significant visual impairment who’s not

anxious to embrace procedures, technologies, appliances that can help them see

better.” Id. at 129.

On cross-examination, Mr. Rosenblum responded to Dr. Bowden’s

suggestion that it was strange for Calderon not to pursue other treatments. Mr.

Rosenblum pointed out that Calderon had undergone the PTK procedure in the

1990’s, that his eye condition returned anyway, and that Calderon simply might

not have wanted to undergo the surgery a second time. Id. at 129–30. Dr.

Bowden stated that the PTK procedure can be repeated, and he thought it wise

for Calderon to do so. Id. at 130–32. Mr. Rosenblum responded by eliciting

testimony that the PTK procedure is only a temporary fix. Id.

Calderon claims Mr. Rosenblum gave ineffective assistance by failing to

cross-examine Dr. Bowden about the severity of Calderon’s granular corneal

dystrophy, the tests he administered, Calderon’s reasons for not undergoing

additional procedures, and the difference between legal blindness and

functional blindness. § 2255 Motion at 13–14, 29–31. He alleges that counsel’s

failure to do so left the jury with the impression that Calderon was faking his

vision problems.

The record belies these claims. It was reasonable for Mr. Rosenblum not

to rely on Dr. Bowden for evidence of the purported severity of Calderon’s

condition because the defense presented its own optometrist, Dr. Danielle

Vance Taylor. See Trial Tr. Vol. IV at 66–80. Dr. Taylor testified that Calderon

had “advanced” granular corneal dystrophy based on the amount of opacity she

observed when she examined his eyes. Id. at 72. Besides, Dr. Bowden described

on direct examination how he assessed Calderon’s vision. As for objective

testing, Dr. Bowden said he checked Calderon’s eyes for “corneal changes …

consistent with [Calderon’s] level of vision and to make sure there was no optic

nerve or retinal disorder that might alternatively explain vision.” Trial Tr. Vol.

II at 122. Dr. Bowden testified that he conducted subjective testing as well

because objective testing alone cannot determine how well a person can see. Id.

at 120, 122. Calderon self-reported various vision-related symptoms (such as

difficulty making out faces), id. at 120–21, and Dr. Bowden determined that

Calderon could count fingers at one foot away, which suggested his vision was

worse than 20/800, id. at 123–24. Even if Dr. Bowden administered other tests,

he explicitly said he relied on the information Calderon provided him and

assumed Calderon was providing truthful feedback. Id. at 123, 124. Had Mr.

Rosenblum further pressed Dr. Bowden about how he assessed Calderon’s

condition, it would have risked highlighting how Calderon provided Dr. Bowden

with incomplete or inaccurate information. The Court cannot say that counsel’s

decision not to press Dr. Bowden about his testing was “outside the wide range

of professionally competent assistance.” Chandler v. United States, 218 F.3d

1305, 1314 (11th Cir. 2000) (en banc) (internal quotation marks and citation

omitted). Moreover, as the government points out, Calderon “does not explain

in detail what specific questions should have been asked or what Dr. Bowden’s

answers would have been. Without proving how Bowden’s unspecified answers

to unspecified questions would have helped the petitioner, he has no claim.”

Response at 21 (internal citation omitted); see also Tejada, 941 F.2d at 1559

(vague and conclusory allegations do not support granting habeas relief).

Likewise, Calderon fails to explain why it would have been relevant for Mr.

Rosenblum to ask Dr. Bowden about the distinction between “functional

blindness” and “legal blindness,” since neither term is relevant to assessing a

veteran’s disability rating. See Gov’t Ex. 4A at 4–5.

Calderon asserts that Mr. Rosenblum was ineffective for failing to push

back on Dr. Bowden’s opinion that it was strange for Calderon not to embrace

a second PTK procedure or other treatments, leaving the jury with the

impression that Calderon’s condition must not have been so bad. § 2255 Motion

at 31. The record does not support this claim. On cross-examination, Mr.

Rosenblum pointed out that Calderon had undergone the PTK procedure in the

1990’s, but his eye condition returned anyway. Trial Tr. Vol. II at 129–30. Mr.

Rosenblum implied that perhaps Calderon simply did not want to undergo the

procedure again, especially since it would only be a temporary fix. Id. at 130–

32. Calderon asserts that Mr. Rosenblum should have reinforced the point by

highlighting the risks of the PTK procedure (like infection or hemorrhaging). §

2255 Motion at 29. But Mr. Rosenblum got his basic point across that Calderon

could have had valid reasons not to undergo the PTK surgery a second time.

Calderon also alleges that Mr. Rosenblum was ineffective for not

confronting Dr. Bowden with his own records, which reflected that Calderon

told Dr. Bowden his health insurance would not cover a second PTK procedure.

Id. at 29. That may have been true, but it would not have helped Calderon. Dr.

Bowden testified that Calderon led him to believe he was seeking VA funds for

the PTK procedure, Trial Tr. Vol. II at 126, but VA records showed that

Calderon never requested funding for the surgery, Trial Tr. Vol. III at 126–27.

Mr. Rosenblum’s revisiting this topic on cross-examination “would have been a

disastrous line of questioning” because it “would have only emphasized

[Calderon’s] false statement[s] to his own doctor.” Response at 21.

Calderon also asserts that Mr. Rosenblum was ineffective for not asking

Dr. Bowden about the administration of an OKN drum test. § 2255 Motion at

14, 30. But Calderon points to no evidence that Dr. Bowden administered an

OKN drum test to Calderon or that he could have offered favorable testimony

if asked about it. Thus, Calderon fails to overcome the “strong presumption”

that Mr. Rosenblum made reasonable professional judgments in cross-

examining Dr. Bowden. See Chandler, 218 F.3d at 1314.

In all events, Calderon fails to show how he was prejudiced by his

attorney’s failure to follow up with Dr. Bowden about certain topics. Dr.

Bowden’s testimony was only a small piece of the government’s case. The

government amassed years of evidence showing that, while Calderon was

claiming to be so visually impaired as to deserve a 100% disability rating, he

was driving a truck without incident, obtaining driver’s licenses in Florida and

Puerto Rico, traveling abroad for mission trips, and doing countless other tasks

inconsistent with a total vision impairment. On one occasion, Calderon told

investigators that God had healed him, that doctors were wrong when they told

him he was blind, and he pointed out a pen tucked into an investigator’s shirt

pocket from five or six feet away. Trial Tr. Vol. I at 184–85. On another occasion,

Calderon admitted to investigators that he knew in 2008 when he obtained his

Florida driver’s license that he was receiving more VA benefits than he was

entitled to. Trial Tr. Vol. II at 62–63. In 2013 alone, Calderon claimed in an

April VA exam that he should not be driving and performed in a way that

suggested his vision was worse than 20/400, id. at 71–72, 150, then two months

later he obtained a driver’s license in Puerto Rico by submitting documentation

that his vision was 20/50, Gov’t Ex. 9A at 2, and then a month after that he

returned to a VA clinic and performed in a way that his vision was worse than

20/14,000, Trial Tr. Vol. IV at 28–29. And it was evident that it was the VA––

not DHSMV authorities––that Calderon was deceiving. Calderon had not had

any traffic accidents or infractions in Puerto Rico or the Florida counties where

he lived since 2000, Trial Tr. Vol. III at 125–26, 155, and he went about various

daily tasks without difficulty. Indeed, it was this type of evidence that the

government emphasized in closing argument and rebuttal, not Dr. Bowden’s

testimony. Trial Tr. Vol. IV at 127–47, 169–74. Given the abundant evidence

against Calderon, there is not a reasonable probability the jury would have

acquitted him but for Mr. Rosenblum’s failure to cross-examine Dr. Bowden

about certain topics. See Strickland, 466 U.S. at 694.

2. Dr. Wong’s Testimony (Trial Tr. Vol. II at 167–86)

Dr. Arthur Wong was the VA optometrist who performed the C&P exam

on Calderon in April 2013. Trial Tr. Vol. II at 167–68. The VA asked Dr. Wong

to record the exam, which he did. Id. at 169–71. When Dr. Wong asked about

driving, Calderon said his wife drove, which Dr. Wong understood to mean that

Calderon did not drive. Id. at 174–75. Dr. Wong testified that he saw evidence

of granular corneal dystrophy in Calderon’s eyes, id. at 172–73, and

administered an OKN drum test, id. at 175–76. He described an OKN drum as

a device used to check vision “when somebody’s vision is very poor, meaning it’s

either light perception, hand motion, or count[ing] fingers.” Id. at 175. Dr. Wong

explained that if the OKN drum test elicits a positive response in the eye, it

means the person’s vision is “at least 20/400.” Id. Dr. Wong testified that the

OKN drum test elicited a response from Calderon. Id. at 176. A video of the

OKN drum test was also played for the jury. See id. Dr. Wong testified that he

relies on information provided by the patient when assessing their visual

acuity, and that inaccurate information could skew the results. Id. at 176–77.

On cross-examination, Dr. Wong testified that based on the OKN drum

test, he marked down Calderon’s vision in the right eye as at least 20/400. Id.

at 179–80. Dr. Wong did not mark down Calderon’s vision in the left eye because

it was worse than 20/400. Id. at 180. Dr. Wong explained he has no way to

quantify vision if it is worse than 20/400, id. at 181, and that he determined

that Calderon’s vision in the left eye consisted of the ability to perceive hand

motion or count fingers at three feet, id. at 180. He did not explicitly say if he

administered the OKN drum test on Calderon’s left eye. On redirect, Dr. Wong

testified that he determined Calderon’s visual acuity in his left eye based on

information Calderon provided. Id. at 184–85.

Calderon alleges that his attorney gave ineffective assistance by failing

to ask Dr. Wong if he administered the OKN drum test to the left eye, and if so,

whether Calderon had a response to it. § 2255 Motion at 14–15. But Calderon

does not specify what Dr. Wong’s answer would have been to this question; he

merely assumes that something helpful would have come from it, though there

is no basis for that assumption. “This kind of speculation is ‘insufficient to carry

the burden of a habeas corpus petitioner.’” Johnson v. Alabama, 256 F.3d 1156,

1187 (11th Cir. 2001) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th

Cir. 1985)). Besides, Dr. Wong testified that he relied on information Calderon

provided in assessing his vision in the left eye. Since Dr. Wong testified that

Calderon’s vision in his left eye was worse than 20/400, it was reasonable for

defense counsel to leave it at that without probing further. See Chandler, 218

F.3d at 1315 (“[B]ecause counsel’s conduct is presumed reasonable, … a

petitioner must establish that no competent counsel would have taken the

action that his counsel did take.”).

Even if counsel should have probed whether Dr. Wong administered the

OKN drum test to Calderon’s left eye, Calderon has not shown prejudice. Dr.

Wong answered only a handful of questions about the OKN drum test, and the

results of that test were never mentioned in the government’s closing argument

or rebuttal argument. Trial Tr. Vol. IV at 127–47, 169–74. Dr. Wong—like Dr.

Bowden and Dr. Taylor—testified that truthful information from the patient is

necessary to accurately determine a person’s visual acuity, and Dr. Wong

testified that he relied on information provided by Calderon in assessing his

vision. The government had amassed years of evidence showing that Calderon

did not have the degree of visual impairment he claimed to have in VA disability

applications, including Calderon’s own admissions to investigators. Thus,

Calderon fails to show a reasonable probability that the trial’s outcome would

have been different but for counsel’s failure to ask Dr. Wong about whether he

administered the OKN drum test to his left eye. See Strickland, 466 U.S. at 694.

C. Cumulative Prejudice

Finally, Calderon alleges that the cumulative effect of his attorneys’

errors deprived him of a fair trial and entitles him to relief. § 2255 Motion at

31–32. “While the prejudice inquiry should be a cumulative one as to the effect

of all of the failures of counsel that meet the performance deficiency

requirement, only the effect of counsel’s actions or inactions that do meet that

deficiency requirement are considered in determining prejudice.” Evans v.

Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1269 (11th Cir. 2012). Because the

Sixth Amendment right to counsel had not attached at the times relevant to

Grounds One through Three, they do not factor into a cumulative error analysis.

As to Ground Four, the Court finds no deficiency in counsel’s performance, so

there are no deficiencies to accumulate. See United States v. Gamory, 635 F.3d

480, 497 (11th Cir. 2011) (“Where there is no error or only a single error, there

can be no cumulative error.”). Alternatively, given the substantial evidence the

government had amassed against Calderon over the years, Calderon has not

shown cumulative error.

IV. Conclusion

The Court expresses no opinion about the propriety of defense counsel’s

actions or advice before Calderon was indicted. As to Grounds One through

Three, the Court finds only that the Sixth Amendment right to counsel had not

attached, and therefore these grounds do not provide a basis for relief under 28

U.S.C. § 2255. Having reviewed each of Calderon’s claims and finding that none

warrants habeas relief, it is ORDERED:

1. Petitioner Jose Calderon-Fuentes’s Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.

2. The Clerk will enter judgment for the United States and against

Calderon, and close the file.

3. If Calderon appeals the denial of the petition, the Court denies a

certificate of appealability (COA).!% Because this Court has determined

that a COA is not warranted, the Clerk will terminate from the pending

motions report any motion to proceed on appeal as a pauper that may

be filed. Such termination will serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 1st day of

December, 2022.

J . \)

U /itoan—| | b/o014_

BRIAN/S . DAVIS

United States District Judge

18 This Court should issue a COA only if a petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial 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) (quoting Slack v. McDaniel, 529 U.S. 4738, 484 (2000)), or that “the issues presented

were ‘adequate to deserve encouragement to proceed further,” Miller-Kl v. Cockrell, 537 U.S.

322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Upon due

consideration, this Court finds that a COA is not warranted.

42

lc 19

Copies:

Counsel of record

Petitioner