Hollie v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

REGINALD HOLLIE,

Prisoner,

v. Case No. 8:22-cv-1368−KKM−AEP

Case No. 8:17-cr-615-KKM-AEP

UNITED STATES OF AMERICA,

Respondent.

____________________________________

ORDER

Following a jury trial, Reginald Hollie was convicted for being a felon in

possession of a firearm and the district court sentenced him to 235 months. After

his conviction and sentence were affirmed on appeal, Prisoner Reginald Hollie

now moves under 28 U.S.C. § 2255 to vacate his conviction. He raises four grounds

for relief. Because his claims lack merit, his motion under § 2255 is denied.

I. Background

Hollie was charged with one count of being a felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1) and 924. (Crim. Doc. 1.) At trial, the United

States presented evidence that law enforcement officers encountered Hollie in a

parking lot where he was trying to open car doors. (Crim. Doc. 75 at 93–96.) As the

officers approached him, Hollie removed a firearm from his waistband and placed

it beneath a tire. (Id.) The parties stipulated that Hollie previously had been

convicted of a felony offense and that his civil rights, including his right to possess

a firearm, had not been restored. (Id. at 132–33.) After a three-day trial, the jury

found Hollie guilty as charged. (Crim. Doc. 41.)

The United States Probation Office recommended that Hollie be sentenced

as an armed career criminal under 18 U.S.C. § 924(e) based on his prior Florida

convictions for delivery of cocaine in 2001, 2002, and 2005. (Crim. Doc. 53 at ¶¶ 23,

36, 39, and 50.) At sentencing, Hollie lodged no factual or legal objections to the

presentence report. (Crim. Doc. 77 at 3–8.) The district court sentenced Hollie to a

low-end guidelines sentence of 235 months’ imprisonment. (Crim. Doc. 60 at 2.)

On appeal, the circuit court affirmed Hollie’s conviction and sentence. United

States v. Hollie, 817 F. App’x 880 (11th Cir. 2020).

II. Legal Standards

Section 2255 allows a federal prisoner to “bring a collateral challenge by

moving the sentencing court to vacate, set aside, or correct the sentence.”

Winthrop-Redin v. United States, 767 F.3d 1210, 1215–16 (11th Cir. 2014). But “[o]nce

the defendant’s chance to appeal has been waived or exhausted, [a court is]

entitled to presume he stands fairly and finally convicted, especially when . . . he

already has had a fair opportunity to present his federal claims to a federal forum.”

United States v. Frady, 456 U.S. 152, 164 (1982). “[A] collateral challenge, such as a

§ 2255 motion, may not be a surrogate for a direct appeal.” Lynn v. United States,

365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165).

Because collateral review is not a substitute for direct appeal, a defendant must

raise on direct appeal all available claims. Relief under Section 2255 is reserved

“for transgressions of constitutional rights and for that narrow compass of other

injury that could not have been raised in direct appeal and would, if condoned,

result in a complete miscarriage of justice.’” Richards v. United States, 837 F.2d 965,

966 (11th Cir. 1988) (quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.

Unit A Sep. 1981)). For example, a claim of ineffective assistance of counsel is a

claim that “should usually be raised in a motion under 28 U.S.C. § 2255.” United

States v. Curbelo, 726 F.3d 1260, 1267(11th Cir. 2013).

“[T]he cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.” Waters v. Thomas,

46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),

explains, Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective

assistance of counsel claim:

The law regarding ineffective assistance of counsel

claims is well settled and well documented. In Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984), the Supreme Court set forth a two-part test for

analyzing ineffective assistance of counsel claims.

According to Strickland, first, the defendant must show

that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Hollie must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” 466 U.S. at 691–92. To meet this burden, Hollie must show

“a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the

limitations on investigation.” 466 U.S. at 690–91. Hollie cannot meet his burden

merely by showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers

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

lawyers would have done. We ask only whether some

reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted at trial . . . . We

are not interested in grading lawyers’ performances; we

are interested in whether the adversarial process at trial,

in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992); accord Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,

in every case, could have done something more or something different. So,

omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent

or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)); see also Jones v. Barnes, 463 U.S. 745, 751

(1983) (counsel has no duty to raise a frivolous claim).

III. Analysis

Hollie moves to vacate his conviction and sentence under Section 2255 and

raises four grounds for relief: (1) that his prior Florida cocaine-related convictions

are not “serious drug offenses” under the Armed Career Criminal Act (ACCA)

(Ground One); (2) that counsel was ineffective for withholding exculpatory

evidence that showed law enforcement previously found other firearms in the area

of the crime scene (Ground Two); (3) that counsel was ineffective for not objecting

to the district court allowing law students to remain in the jury room during

deliberations (Ground Three); and (4) that counsel was ineffective for not objecting

to the prosecutor’s improper closing arguments (Ground Four).

A. Ground One

Hollie claims that his prior Florida convictions for delivery of cocaine are

not predicate serious drug offenses under the ACCA, and therefore, his sentence

was improperly enhanced. Hollie relies on United States v. Jackson, 36 F.4th 1294

(2022) (Jackson I), which, at the time Hollie initiated this action, held that Florida

cocaine-related offenses did not qualify as predicate serious drug offenses under

the ACCA because Florida’s controlled substance schedule included ioflupane

and was therefore broader than the relevant version of the federal controlled

substances schedule. See United States v. Penn, 63 F.4th 1305, 1311 (11th Cir. 2023)

(explaining that “a state conviction cannot be an ACCA predicate if the statute of

conviction proscribes a broader range of conduct than what Section 924(e)(2)(A)(ii)

defines as a ‘serious drug offense’”).

The United States opposes the relief Hollie seeks in Ground One, arguing

that Hollie has procedurally defaulted this claim by failing to raise the issue on

direct appeal. (Civ. Doc. 11 at 5–7.) Alternatively, the United States argues that

Ground One lacks merit because Jackson I was wrongly decided. (Id. at 12–18.)

1. Ground One lacks merit.

After the parties’ initial briefing in this action, the Eleventh Circuit vacated

Jackson I and reached the opposition conclusion in United States v. Jackson, 55 F.4th

846 (11th Cir. 2022) (Jackson II). Johnson II found that the “ACCA’s definition of a

state ‘serious drug offense’ incorporates the version of the federal controlled

substances schedules in effect when the defendant was convicted of the prior state

drug offense.” Id. at 854. Jackson II concluded that the defendant’s 1998 and 2004

Florida cocaine-related convictions qualified as ACCA predicate serious drug

offenses because Florida’s controlled substance schedules included ioflupane until

2017 and the federal controlled substance schedules also included ioflupane until

2015. Id. at 851 and nn. 3–4. Therefore, the Jackson II court reasoned, at the time

Jackson was convicted of the prior cocaine-related offenses in 1998 and 2004,

Jackson’s state convictions were defined in the same way that the ACCA defined

a serious drug offense. Id. As a result, Jackson’s prior convictions qualified as

predicate serious drug offenses under the ACCA.

Subsequently, Jackson sought certiorari, which the United States Supreme

Court granted on May 15, 2023. Jackson v. United States, 143 S. Ct. 2457, No. 22-6640

(2023). The Supreme Court also consolidated Jackson II with another case, see

United States v. Brown, 143 S. Ct. 2458, No. 22-6389 (2023), and the cases remain

pending.

Until the Supreme Court holds otherwise, Jackson II controls the issue of

whether a Florida cocaine-related conviction qualifies as a ACCA predicate

serious drug offense. See United States v. Kelly, No. 23-10857, 2024 WL 886860, at *3

(11th Cir. Mar. 1, 2024) (“This issue is controlled by our decision in Jackson II. The

prior-panel-precedent rule requires subsequent panels to follow the precedent of

the first panel to address the relevant issue, unless and until the first panel’s

holding is overruled by [the circuit court] sitting en banc or by the Supreme Court.

The granting of certiorari alone does not affect our precedent.”) (citations omitted);

see United States v. Grant, No. 22-10910, 2023 WL 5230970, at *5–6 (11th Cir. Aug.

15, 2023) (“Although the Supreme Court will soon review Jackson II, a grant of

certiorari by the Supreme Court does not in itself change the law.”).

Jackson II forecloses Hollie’s claim. Like Jackson, Hollie’s prior Florida

cocaine-related convictions all predate 2015, when Florida’s cocaine-related

offenses were defined in the same way that the ACCA defined a serious drug

offense. See Kelly, 2024 WL 886860, at *3 (applying Jackson II and ruling that,

because “the defendant’s prior Florida cocaine-based drug convictions all

predated 2015[,]” those convictions were serious drug offenses under the ACCA);

see also Grant, 2023 WL 5230970, at *5–6 (applying Jackson II and ruling that the

defendant’s 2001 Florida cocaine-related convictions qualified as predicate serious

drug offenses under the ACCA). Consequently, Hollie’s prior Florida convictions

for delivery of cocaine in 2001, 2002, and 2005 are predicate serious drug offenses.

He is entitled to no relief on this claim.

2. Ground One is procedurally defaulted.

Hollie’s claim in Ground One fails for the additional reason that he

procedurally defaulted this claim by failing to raise it on appeal. “[A] ‘procedural

default’ occurs when a defendant raises a new challenge to his conviction or

sentence in a § 2255 motion.” Seabrooks v. United States, 32 F.4th 1375, 1383–84 (11th

Cir. 2022) (citing Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)). “The

procedural-default rule is . . . a doctrine adhered to by the courts to conserve

judicial resources and to respect the law’s important interest in the finality of

judgments.’” Foster v. United States, 996 F.3d 1100, 1106 (11th Cir. 2021) (quoting

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

“If a defendant fails to raise an issue on direct appeal, he may not present

the issue in a § 2255 proceeding unless his procedural default is excused.”

Seabrooks, 32 F.4th at 1384 (citing McKay v. United States, 657 F.3d 1190, 1196 (11th

Cir. 2011)). “To overcome a procedural default, a defendant must show either (1)

cause and prejudice, or (2) a miscarriage of justice, or actual innocence.” Id.

a. Cause

As cause to excuse his procedural default, Hollie argues that he could not

have advanced this claim because Jackson I had not been issued when he appealed.

(Civ. Doc. 12 at 2.) He acknowledges that counsel’s “failure to anticipate a change

in the law will not support a claim of ineffective assistance of appellate counsel,”

(id. at 4), but he nevertheless argues that appellate counsel’s failure to do so

prejudiced him (id. at 6). According to Hollie, “the fact that the Jackson Court . . .

vacated defendant Jackson’s sentence on an issue that is exactly like Mr. Hollie’s

claim at Ground One” shows that “his sentence would have been vacated on direct

appeal had counsel raised [a similar]claim.” (Id. at 6.)

The circuit court has consistently held that “[a]n attorney’s failure to

anticipate a change in the law does not constitute ineffective assistance.” Steiner v.

United States, 940 F.3d 1282, 1293 (11th Cir. 2019); see also Thompson v. Wainwright,

787 F.2d 1447, 1459 n.8 (11th Cir. 1986) (“[D]efendants are not entitled to an

attorney capable of foreseeing the future development of constitutional law.”).

And, even if non-binding precedent existed from which counsel could have

formulated a Jackson-based argument, counsel is not deficient for failing to do so.

See Bajorski v. United States, 276 F. App’x 952, 954 (11th Cir. 2008) (“Even if a claim

based upon an anticipated change in the law is reasonably available at the time

counsel failed to raise it, such failure does not constitute ineffective assistance.”);

Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013) (“[I]t generally does not

fall below the objective standard of reasonableness for . . . counsel to fail to raise a

claim in anticipation that undeniably would lose under current law but might

succeed based on the outcome of a forthcoming [appellate] decision.”); Pitts v.

Cook, 923 F.2d 1568, 1573–74 (11th Cir. 1991) (“[L]awyers rarely, if ever, are

required to be innovative to perform within the wide range of conduct that

encompasses the reasonably effective representation mandated by the

Constitution.”). Consequently, Hollie cannot show that appellate counsel’s failure

to anticipate Jackson I constitutes cause to excuse his procedural default of his claim

in Ground I.

b. Prejudice

Even if Hollie could establish that appellate counsel’s performance was

ineffective, he would have to show that he suffered actual prejudice from the

alleged ineffectiveness. “’Actual prejudice means more than just the possibility of

prejudice; it requires that the error worked to the petitioner’s actual and

substantial disadvantage, infecting his entire trial with error constitutional

dimensions.’” Granda v. United States, 990 F.3d 1272, 1288 (11th Cir. 2021) (quoting

Fordham v. United States, 706 F.3d 1345, 1350 (11th Cir. 2013). “The actual prejudice

standard is ‘more stringent that the plain error standard.’” Id. (quoting Parks v.

United States, 832 F.3d 1244, 1245 (11th Cir. 1987)).

Hollie cannot show he was prejudiced by appellate counsel’s performance

because, as explained in Section III.A.1., supra, Hollie’s prior Florida convictions

for delivery of cocaine in 2001, 2002, and 2005 constitute predicate serious drug

offenses under binding circuit precedent.

c. Actual Innocence

Because Hollie demonstrates neither cause nor prejudice, his procedural

default can be excused only if he demonstrates his actual innocence. See Bousley v.

United States, 523 U.S. 614, 622–23 (1998). “[A]ctual innocence’ means factual

innocence, not mere legal insufficiency.” Id. at 623 (quoting Sawyer v. Whitely, 505

U.S. 333, 339 (1992)). The “prototypical example of ‘actual innocence’ in a

colloquial sense is the case where the government has convicted the wrong person

of the crime.” Sawyer, 505 U.S. at 349. Hollie does not contend that he is factually

innocent of his offense of conviction. Consequently, he is not excused from his

procedural default of his claim in Ground One.

3. Dupree affords Hollie no relief.

With the district court’s permission, Hollie filed a supplemental

memorandum in which he argues that his 2005 Florida conviction for attempted

delivery of cocaine is not a serious drug offense under the ACCA after United States

v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc). (Civ. Doc. 15.) The United States

responded that Dupree is inapposite and affords Hollie no relief. (Civ. Doc. 16.)

Hollie’s reliance on Dupree is misplaced. Dupree concerns whether inchoate

crimes qualify as “controlled substance offenses” under the career offender

sentencing guideline and does not concern the definition of a serious drug offense

under the ACCA. Dupree holds that “the definition of ‘controlled substance

offense’ in [U.S. Sentencing Guidelines] § 4B1.2(b) does not include inchoate

offenses.” However, “the ACCA’s definition of a serious drug offense is broader

than the guidelines definition of a drug trafficking or a controlled substance

offense because of the ACCA’s use of the term ‘involving.’” United States v. White,

837 F.3d 1225, 1235 (11thth Cir. 2016).1 Accordingly, Dupree affords Hollie no relief.

Hollie’s 2005 Florida conviction for attempted delivery of cocaine remains a

serious drug offense under the ACCA. See Penn, 63 F.4th at 1310–17 (holding that

Florida convictions for sale of cocaine categorically qualify as predicate serious

1 Furthermore, Dupree was issued on January 18, 2023, more than four years after Hollie’s

conviction. “For a new rule to be retroactive, the Supreme Court must make it retroactive on

collateral review.” In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000). The Supreme Court has not

done so. See Seymore v. United States, No. 2:23-cv-469-SPC-NPM, 2024 WL 50805, at * 6 (M.D. Fla.

Jan. 4, 2024).

drug offenses under the ACCA and reasoning that “Florida’s prohibition on drug

sales, even if defined to include an attempted transfer, is not an inchoate offense[

but rather,] attempts to transfer drugs are part of completed sale offenses”); see also

United States v. Smith, No. 22-10028, 2024 WL 177988, at * 3 (11th Cir. Jan. 17, 2024)

(same).

B. Ground Two

Hollie claims that, after he was convicted at trial, he discovered that trial

counsel withheld evidence that the law enforcement officer who arrested him

previously found firearms “in the same vicinity where the officers testified that

they found the firearm in dispute.” (Civ. Doc. 2 at 5; Civ. Doc. 12 at 10.) Hollie

argues that counsel was ineffective for both not advising him of the existence of

this exculpatory evidence and not admitting it at trial because the evidence would

have corroborated his defense, impeached the government’s witnesses, and

negated the charges against him. (Id.)

In his responsive affidavit, counsel denies withholding exculpatory

evidence (Civ. Doc. 11-1 at 2–3):

7. At no time did [counsel] ever withhold evidence from

the Defendant.

8. Prior to trial, [counsel] subpoenaed from Tampa Police

Department Records section a record of any weapons

recovered within Ybor City at or near the Broadway Bar

located at 2227 E. 7th Ave. and N. 23rd Street, Ybor City,

FL.

9. Tampa Police Department provided the following

record attached as Exhibit “A”. This document was

provided to the Defendant well prior to trial and even

discussed with the Defendant prior and during trial. As

this Honorable Court can see there were five (5) weapons

found in Ybor City by Tampa Police Department, three

(3) of which were found after the events charged in the

Indictment of September 24, 2017. More importantly,

none of the five (5) listed weapons were found in or

around the alleged crime scene, therefore relevance

became an issue.

10. This issue became even more remote and irrelevant

when the testimony at trial placed a handgun in the

waist-band and hands of the Defendant as witnessed by

an Officer on scene and who eventually recovered the

handgun from under the front wheel of a vehicle parked

in a parking lot at the exact location the Officer claims he

saw the Defendant place it.

11. Since there were no other weapons recovered at the

scene and since the testimony placed a handgun in the

hands of the Defendant, this information regarding other

weapons became even more irrelevant and remote and

[counsel] made the strategic decision not to even attempt

to try to use this information for credibility purposes.

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

‘is a matter of strategy and is not ineffective unless the petitioner can prove that

the chosen course, in itself, was unreasonable.’” Brownlee v. Haley, 306 F.3d 1043,

1060 (11th Cir. 2002) (quoting Chandler, 218 F.3d at 1318). Similarly, “no absolute

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

decision to conduct or not to conduct an investigation is reasonable. Chandler, 218

F.3d at 1317. Counsel is not “required to ‘pursue every path until it bears fruit or

until all hope withers.’” Williams v. Head, 185 F.3d 384, 387 (11th Cir. 1994). “A

decision to limit investigation is ‘accorded a strong presumption of

reasonableness.’” Mills v. Singletary, 63 F.3d 999, 1021 (11th Cir. 1995).

Hollie is not entitled to relief on this claim. He points to no evidence to

support his theory that law enforcement previously discovered firearms at the

scene of the offense, nor does he explain how such evidence would undermine his

conviction. Instead, counsel’s uncontroverted affidavit demonstrates that he

pursued Hollie’s theory of the previous discovery of firearms near the scene by

subpoenaing law enforcement records. But when those records confirmed that no

firearms were discovered near the scene before the date of Hollie’s offense, counsel

made the strategic decision to abandon this theory of defense. That strategic

decision is afforded deference and Hollie cannot overcome the strong

presumption that counsel’s strategic decision to abandon the theory was

reasonable.

In his reply, Hollie vaguely argues that he is entitled to an evidentiary

hearing on this issue because he has alleged sufficient facts that, if true, would

entitle him to relief. (Civ. Doc. 12 at 10.) The fact that supports an evidentiary

hearing, according to Hollie, is that “his attorney withheld evidence showing that

officers had previously found firearms in the same vicinity where the officers

testified that they found the firearm in dispute.” (Civ. Doc. 12 at 10.)

An evidentiary hearing must be held on a motion to vacate “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255(b). The prisoner “is entitled to an evidentiary

hearing if he alleges facts that, if true, would entitle him to relief.” Winthrop-Redin

v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014). “[A] petitioner need only

allege—not prove—reasonably specific, nonconclusory facts that, if true, would

entitle him to relief. If the allegations are not affirmatively contradicted by the

record and the claims are not patently frivolous, the district court is required to

hold an evidentiary hearing.” Griffith v. United States, 871 F.3d 1321, 1329 (11th Cir.

2017) (quotations and emphasis omitted, alteration in original). “However, a

district court need not hold a hearing if the allegations are patently frivolous,

based upon unsupported generalizations, or affirmatively contradicted by the

record.” Winthrop-Redin, 767 F.3d at 1215 (quotations omitted).

Hollie is not entitled to an evidentiary hearing on this claim because it is

affirmatively contradicted by the record, patently frivolous, and, even if true,

Hollie cannot show ineffective assistance of counsel if other firearms were located

in the same vicinity. First, the record shows that counsel pursued Hollie’s theory

that law enforcement previously discovered firearms at the scene by subpoenaing

law enforcement records. A report, which is attached to counsel’s responsive

affidavit, confirms counsel’s statement that no firearms were discovered at the

scene before the date of Hollie’s offense. (Civ. Doc. 11-2.) Consequently, when the

subpoenaed records disproved Hollie’s theory, counsel abandoned it as

“irrelevant and remote.” (Civ. Doc. 11-1 at 3.) Hollie’s claim that counsel withheld

exculpatory evidence is affirmatively contradicted by the report. See Aron v. United

States, 291F.3d 708, 714 n.5 (11th Cir. 2002) (concluding the district court did not

abuse its discretion in declining to hold an evidentiary hearing when the record

affirmatively contradicted the petitioner’s allegations).

Furthermore, Hollie’s suggestion that counsel would investigate a theory of

defense but withhold exculpatory evidence discovered from that investigation is

patently frivolous. See Winthrop-Redin, 767 F.3d at 1217 (“The district court is

entitled to discredit a defendant’s newly-minted story . . . when that story is

supported only by the defendant’s conclusory statements.”). And lastly, even if

Hollie is correct that there was evidence of other firearms and that counsel’s

conduct was somehow deficient, Hollie cannot show prejudice based on the

evidence admitted at trial.

C. Ground Three

Hollie claims that trial counsel was ineffective for not objecting to the district

court allowing law students to remain in the jury room during deliberations. (Civ.

Doc. 2 at 7; Civ. Doc. 12 at 6–9.) He claims that counsel refused to object “because

the judge would get very angry if [counsel] objected to [the judge] allowing . . .

‘students’ into the jury room.” (Civ. Doc. 12 at 8.) He argues that, because non-

jurors were present during deliberations, prejudice against him must be

presumed. (Id.)

In his responsive affidavit, counsel denies any knowledge supporting this

claim: “[Counsel] has absolutely no information regarding nor corroboration of

this allegation. [Counsel] is completely unaware that anyone was allowed to enter

the jury room. . . . At no time has this very issue or concern ever [been] raised by

the Defendant to his counsel prior to this 2255 Motion.” (Civ. Doc. 11-1 at 3.) The

Assistant U.S. Attorney who was lead counsel also asserts no awareness of any

invasion of the jury room by non-jurors. (Civ. Doc. 11 at 20.) And nothing from the

trial transcript or docket indicates anything of the sort transpired (I inherited the

underlying criminal case and this § 2255 motion).2

2 Both the trial judge and defense counsel acknowledged the presence of students from Stetson

University College of Law in the courtroom during trial. (Crim. Doc. 75 at 158, 186–87, 188, 195.)

A federal prisoner seeking relief under § 2255 is entitled to an evidentiary

hearing if his allegations, if true, would entitle him to relief. The allegations must

be “reasonably specific, non-conclusory facts,” Winthrop-Redin, 767 F.3d at 1216,

but allegations that are “patently frivolous, based upon unsupported

generalizations, or affirmatively contradicted by the record” will not warrant an

evidentiary hearing, id. See also Ochoa v. United States, 45 F.4th 1293, 1300 (11th Cir.

2022).

First, accepting as true that counsel refused to object when students were

permitted to remain during jury deliberations, Hollie has not shown entitlement

to relief. “[T]he primary if not exclusive purpose of jury privacy and secrecy is to

protect the jury’s deliberations from improper influence.” United States v. Olano,

507 U.S. 725, 738–39 (1993). “There may be cases where an intrusion should be

presumed prejudicial, . . . but a presumption of prejudice as opposed to a specific

analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s

deliberations and thereby its verdict?” Id. at 739 (quotations omitted). Hollie’s

claim fails because he fails to show that he was prejudiced by counsel’s deficient

performance. He fails to explain how counsel’s refusal to object to students’

presence during jury deliberations (assuming that occurred) influenced those

deliberations or otherwise prejudiced his defense. Hollie’s vague suggestion of

prejudice is insufficient considering the evidence of his guilt presented at trial,

which established that law enforcement observed him remove a firearm from his

waistband and place it beneath a tire. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th

On one occasion, the trial judge permitted the students to approach the bench to listen to

discussions between the judge and counsel at sidebar. (Id. at 30.) But there is no indication that

they were permitted to enter or observe jury deliberations.

Cir. 1991) (concluding that “because the evidence against [the defendant was]

overwhelming, [the defendant could] not demonstrate[] that [counsel’s] alleged

errors, if true, would have so prejudiced his defense that there would be a

reasonable probability that the result of the proceeding would have been

different”) (quotations and alterations omitted). Indeed, “[i]t is not enough for the

[petitioner] to show that [counsel’s decision not to object] had some conceivable

effect on the outcome of the proceeding,” because “[v]irtually every act or

omission of counsel would meet that test.” Strickland, 466 U.S. at 693.

And Hollie has not shown entitlement to a hearing to develop this claim.

Hollie offers no specific details and points to no record evidence supporting his

allegation that law students were permitted to enter the jury room and remain

during jury deliberations, much less that counsel refused to object. “A [§ 2255]

petitioner is not entitled to an evidentiary hearing . . . 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) (quotations omitted). Instead, this kind of outlandish allegation lands

squarely in the “patently frivolous” camp. In his reply, Hollie argues that he has

alleged sufficient facts to warrant an evidentiary hearing on this claim. (Civ. Doc.

12 at 6–9.) But he cites nothing in the trial transcript, docket entry, or even specific

allegations that make such a claim anything besides bare speculation. If given an

evidentiary hearing, Hollie intends to subpoena the trial judge, the trial judge’s

students, and defense counsel to develop this claim “because they are well familiar

with the circumstances giving rise to [his] contentions.” (Id. at n.7.) Additionally,

he intends “to obtain copies of videos and/or other recordings that will show the

judge’s ‘students’ entering the jury room during deliberations.” (Id. at 7.)Hollie is

not entitled to an evidentiary hearing on this claim. He offers only his unsupported

allegation that counsel refused to object when the district court permitted students

to remain during jury deliberations, and he neglects to describe how counsel’s

performance prejudiced him. Because his claim is not supported “by credible third

party affidavits or other documentary evidence,” he is not entitled to an

evidentiary hearing on this claim. See Matthews v. United States, 533 F.2d 900, 902

(5th Cir. 1976) (reasoning that a petitioner may be entitled to an evidentiary

hearing when he “goes beyond mere allegations by presenting credible affidavits

that raise a substantial inference that [indicates a right to relief]”); see also Tejada,

941 F.2d at 1559 (“[W]hen considering whether an evidentiary hearing should be

held on habeas claims based on occurrences outside the record, no hearing is

required if the allegations viewed against the record, either fail to state a claim for

relief or are so palpably incredible or patently frivolous as to warrant summary

dismissal.”) (quotations omitted).

D. Ground Four

Hollie claims that counsel was ineffective for not objecting when the

prosecutor improperly vouched for the credibility of its witness. (Civ. Doc. 2 at 8.)

He points to the following closing arguments made by the prosecutor (Crim. Doc.

76 at 36–38):

Don’t be distracted by any allegation that Miles3

isn’t trustworthy because he reported to the police that

3 Jerimel Miles worked as a security officer at the Broadway Bar located across the street from the

parking lot where law enforcement discovered Hollie in possession of a firearm. (Crim. Doc. 75

at 17–36.) On direct examination, he testified that he reported to law enforcement that Hollie

possessed a gun and threatened him. (Id. at 34–35) On cross examination, he testified that he did

not report to law enforcement bar fights or drug possession. (Id. at 38–41.)

the defendant threatened to shoot him but failed to

report a fight in the bar. . . .

Miles got on the stand in this courtroom and he

was brutally honest. He admitted his failure the night he

got stabbed. It was his fault. He admitted that he knows

that people in that club possess marijuana. He admitted

to two things that were his own failure that night.

He is honest to a fault. And the defendant wants

you to believe that Miles is dishonest when it hurts the

defendant, but he’s honest when it helps the defendant.

And these are things that you should think about when

you’re evaluating Miles’ testimony.

Hollie complains that the prosecutor’s description of its witness as “brutally

honest” “suggests to the jury that there may be additional evidence known to the

prosecutor that supports the witness’s credibility” and that “the prosecutor, as a

representative of the government, should be trusted because of his status.” (Civ.

Doc. 2 at 8.)

In his responsive affidavit, counsel represents that he made the strategic

decision not to object to the prosecutor’s comments because the comments “were

in passing and [were] not a focus [of the] closing arguments to the jury[,]” and

therefore did not prejudice Hollie. (Civ. Doc. 11-1 at 4.) Hollie’s reply contains no

response to counsel’s affidavit. (Civ. Doc. 12.)

“Improper vouching occurs if the prosecutor makes explicit personal

assurances of a witness’s veracity, or indicates that information not presented to

the jury supports a witness’s testimony.” Hong v. Sec’y, Dep’t of Corr., 478 F. App’x

648, 650 (11th Cir. 2012) (citing United States v. Epps, 613 F.3d 1093, 1100 (11th Cir.

2010)). “A prosecutor is permitted to comment on the credibility of a witness

without personally vouching for a witness’s credibility.” Hong, 478 F. App’x at 650

(citing United States v. Lopez, 590 F.3d 1238, 1257 (11th Cir. 2009)). “Improper

vouching requires a determination that the jury reasonably believed ‘the

prosecutor was indicating a personal belief in the witness’ credibility,’ but does

not prohibit arguments about credibility.” Hong, 478 F. App’x at 650 (quoting

Lopez, 590 F.3d at 1256).

Hollie fails to show counsel’s strategic decision not to object to the

prosecutor’s comments about the witness’s credibility was deficient. Whether the

prosecutor’s comments in isolation amounted to improper vouching or otherwise

suggesting to the jury that evidence not presented to the jury supported the

witness’s credibility, the prosecutor’s comments must be analyzed in the context

in which the prosecutor emphasized that the witness had admitted his own faults

and that the defense suggested conflicting narratives about the witness’s

credibility. Hollie cannot show counsel was ineffective for not advancing a

meritless “improper vouching” objection. See Hong, 478 F. App’x at 650

(concluding that counsel was not ineffective for not objecting because the

prosecutor’s statements “that the witnesses were credible based on the evidence

presented, the situations involved, and training of the witnesses” did not

constitute improper vouching); Hollis v. United States, 958 F.3d 1120, 1124 (11th Cir.

2020) (“[C]ounsel [does] not perform deficiently by failing to raise a meritless

objection.”).

Furthermore, Hollie fails to overcome the strong presumption that counsel’s

strategic decision not to object was reasonable. The record shows that the

prosecutor’s comments concerning the witness’s credibility were limited to those

cited above, and therefore, counsel’s strategic choice not to object because the

comments were “in passing” and “not a focus” of the prosecutor’s argument

constitutes a reasonable, strategic choice made in the exercise of his professional

judgment. See Thomas v. United States, 596 F. App’x 808, 810 (11th Cir. 2015)

(concluding that counsel’s decision not to object to testimony was a reasonable,

strategic choice).

Finally, even if counsel performed deficiently by not objecting to the

prosecutor’s comments about the witness’s credibility, Hollie’s claim nevertheless

fails because he fails to explain how he was prejudiced by counsel’s performance.

Considering the evidence of Hollie’s guilt presented at trial, his mere suggestion

of prejudice is insufficient. See Thomas, 596 F. App’x at 810 (concluding that the

petitioner could not demonstrate he was prejudiced by counsel’s strategic choice

not to object to credibility-bolstering testimony “because the government

presented strong evidence of [the defendant’s] guilt”). Hollie fails to show that

there is a reasonable probability that, but for counsel’s decision not to object to the

prosecutor’s closing argument, the result of the proceeding would have been

different. See Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (explaining that

“habeas petitioners must affirmatively prove prejudice because attorney errors

come in an infinite variety and are as likely to be utterly harmless in a particular

case as they are to be prejudicial”) (quotations omitted).

IV. No Certificate of Appealability

Hollie is not entitled to a certificate of appealability (COA). A prisoner

moving under § 2255 has no absolute entitlement to appeal a district court’s denial

of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first

issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” To merit a

certificate of appealability, Hollie must show that reasonable jurists would find

debatable both (1) the merits of the underlying claims and (2) the procedural issues

he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478

(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show

that reasonable jurists would debate either the merits of the claims or the

procedural issues, Hollie is entitled to neither a certificate of appealability nor an

appeal in forma pauperis.

Conclusion

Hollie’s amended motion under § 2255 to vacate, set aside, or correct his

sentence (Civ. Doc. 2) is DENIED and a certificate of appealability is DENIED.

Leave to appeal in forma pauperis is similarly DENIED. Hollie must obtain

permission from the circuit court to appeal in forma pauperis. The clerk is directed

to enter a judgment against Hollie, close this case, and enter a copy of this order in

the criminal case.

ORDERED in Tampa, Florida, on March 20, 2024.

Jatin Kumlall Wee, et

athryn’ Kimball Mizelle

United States District Judge

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