Miers v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:19-cv-20740-KMM

TIMOTHY JOHN MIERS,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

_________________________________/

OMNIBUS ORDER

THIS CAUSE came before the Court upon pro se Movant Timothy John Miers’s

(“Movant”) Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence

by a Person in Federal Custody. (“Mot.”) (ECF No. 11). The matter was referred to the Honorable

Lisette M. Reid, United States Magistrate Judge, who issued a Report and Recommendation

recommending that the Motion be denied. (“R&R”) (ECF No. 71). Movant filed objections.1

(“Objs.”) (ECF No. 79). Respondent filed a response to Movant’s objections. (“Objs. Resp.”)

1 On November 16, 2021, the Court granted Movant’s Motion to Exceed the Page Limitation for

his objections. (ECF No. 77). The Court’s Order directed Movant to “file the objections attached

to [that] Motion separately on the docket.” Id. On November 29, 2021, the Court received

Movant’s Objections (ECF No. 79) and contemporaneously filed Amended Objections. (ECF

No. 80). The Court ordered the Amended Objections stricken because Movant did not ask, and

the Court did not grant Movant permission, to file his Amended Objections. (ECF No. 81). On

December 28, 2021, the Court received another set of Movant’s Amended Objections, which

Movant claimed were filed as a matter of course pursuant to Federal Rule of Civil Procedure 15.

(ECF No. 85). The Court ordered this second set of Amended Objections stricken because, again

Movant did not seek leave to file his Amended Objections, and in any event, his Amended

Objections were not pleadings and thus Rule 15 did not apply to them. (ECF No. 86). On

January 31, 2022, Movant filed a Motion for Leave to file Amended Objections pursuant to Rule

15, (ECF No. 87), which the Court denied on February 4, 2022. (ECF No. 88).

(ECF No. 84). The matter is now ripe for review. As set forth below, the Report and

Recommendation is ADOPTED.

Also before the Court is Movant’s Motion for Reconsideration of Order Denying

Petitioner’s Motion for Leave to Amend Objections to the Magistrate’s Report. (ECF No. 89). As

set forth below, the motion is DENIED.2

I. BACKGROUND3

On October 2, 2014, a federal grand jury sitting in the Southern District of Florida returned

a Superseding Indictment charging Movant Timothy John Miers with one count of kidnapping, in

violation of 18 U.S.C. § 1201(a)(1), and two counts of interstate domestic violence, in violation of

18 U.S.C. § 2261(a)(1), (a)(2), and (b)(3). (“Superseding Indict.”) (CR-ECF No. 18).4 The case

proceeded to trial, where, on December 11, 2014, a jury in Miami, Florida returned a verdict

finding Movant guilty of all counts charged in the Superseding Indictment. (CR-ECF No. 72).

On March 16, 2015, Movant was sentenced to life imprisonment as to Count 1, and 120

months of imprisonment as to each of Counts 2 and 3, all to be served concurrently. (CR-ECF

Nos. 102, 105). This term of imprisonment is to be followed by five (5) years of supervised release.

Id. On March 16, 2015, Movant filed a Notice of Appeal. (CR-ECF No. 106). On July 25, 2017,

2 All citations to filings within the Court’s electronic case management system in this Omnibus

Order refer to the pagination within the Court’s electronic case filing system, not the pagination

ascribed by the filing party.

3 The Court assumes familiarity with the factual background of this case, which is recounted in

United States v. Miers, 686 F. App’x 838 (11th Cir. 2017) (per curiam), as well as in the Report

and Recommendation, see R&R at 8–9.

4 Citations of the form “(CR-ECF No. ___)” refer to docket entries of the underlying criminal

case, United States v. Miers, No. 1:14-cr-20642-KMM (S.D. Fla.). Citations of the form “(ECF

No. ___)” refer to the instant habeas proceedings under § 2255 in Miers v. United States, No.

1:19-cv-20740-KMM (S.D. Fla.).

the mandate of the Eleventh Circuit issued, affirming the judgment of conviction. (CR-ECF

No. 122); see also United States v. Miers, 686 F. App’x 838, 840 (11th Cir. 2017) (per curiam).

On February 20, 2018, the United States Supreme Court denied Movant’s petition for a writ of

certiorari. (CR-ECF No. 128).

On February 19, 2019, Movant filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1). The Court ordered

Movant to file the instant Amended § 2255 Motion because his initial motion was an unwieldy

and rambling forty-eight-page document. See generally (ECF No. 9). Movant filed the instant

Amended § 2255 Motion on April 8, 2019. See generally Mot. And, on March 17, 2020, Movant

filed a motion for leave to amend his Amended § 2255 Motion, asserting an additional ground for

relief that was not previously raised in his Amended Motion. See generally (ECF No. 43).

Movant’s Amended § 2255 Motion raises the following grounds for relief, which the Court

has reproduced below from the Report and Recommendation:

1. Ground 1: His trial attorneys . . . were ineffective for failing to:

i. object to Movant’s conviction as to Count 1 on double jeopardy

grounds (CV ECF No. 11 at 3–5; CV ECF No. 25 at 2–15);

ii. object to the jury instruction on interstate domestic violence because

it broadened the Movant’s statutory maximum sentence exposure

thereby resulting in a constructive amendment to Counts 2 and 3 of

the Superseding Indictment (CV ECF No. 11 at 6–7; CV ECF No.

25 at 15–17);

iii. cross-examine . . . the government’s “cell site expert,” regarding his

scientific findings relating to Movant’s location during the time

when the kidnapping was alleged to have occurred (CV ECF No. 11

at 8–11);

iv. effectively investigate, retrieve, develop, and/or present exculpatory

DNA test results obtained from the pants of the kidnapped

victim . . . (CV ECF No. 11 at 12–14); and,

v. expose [the victim’s] false testimony, and their cumulative errors,

as set forth in claims 1(iii) and 1(iv) violated Movant’s due process

rights (CV ECF No. 11 at 14–15).

2. Ground 2: His appellate counsel failed to assign as error on appeal that

Movant’s double jeopardy rights were violated when he was convicted and

sentenced as to Count 1 to the lesser-included-offense of interstate domestic

violence. (CV ECF No. 11 at 16; CV ECF No. 25 at 18); and,

3. Ground 3: The court lacked jurisdiction to impose a sentence as to Count 1.

(CV ECF No. 11 at 18; CV ECF No. 25 at 25).

4. Ground 4: The government engaged in prosecutorial misconduct in 2014

through 2015 by failing to disclose and/or otherwise falsifying “the true

facts” that a DNA report in their custody clearly excluded Movant as the

perpetrator. (CV ECF No. 43 at 2–6).5

R&R at 2–3 (citations and alterations in original).

On August 25, 2021, Magistrate Judge Reid issued a Report and Recommendation,

recommending that the Court deny Movant’s Amended Motion on the merits, decline to issue a

certificate of appealability, and close this case. See generally R&R.

On November 29, 2021, Movant filed Objections after the Court granted his motion for

extension of time and motion for leave to exceed the page limitation. See generally Objs.; (ECF

Nos. 73, 77). On December 17, 2021, the Government filed its response to Movant’s objections.

See generally Objs. Resp. And, as noted earlier, after the Government filed its response, Movant

filed Amended Objections, which the Court ordered stricken from the docket, and a motion for

leave to file amended objections, which was denied. (ECF Nos. 85–88).

Now, Movant objects to the findings and recommendations of the Report and

Recommendation as set forth below. See generally Objs.

II. LEGAL STANDARD

The Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

The Court “must consider de novo any objection to the magistrate judge’s recommendation.” Fed.

R. Civ. P. 72(b)(3). A de novo review is required if a party files “a proper, specific objection” to

5 The Report and Recommendation notes that Movant’s fourth ground for relief was asserted in

an untimely, supplemental amendment. R&R at 3, 6.

a factual finding contained in the report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir.

2006). “It is critical that the objection be sufficiently specific and not a general objection to the

report” to warrant de novo review. Id.

However, a party’s objections are improper if they expand upon and reframe arguments

already made and considered by the magistrate judge, or simply disagree with the magistrate

judge’s conclusions. See Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1

(S.D. Fla. Sept. 6, 2018); see also Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL

3614212, at *2 (S.D. Fla. Aug. 21, 2012) (“It is improper for an objecting party to . . . submit [ ]

papers to a district court which are nothing more than a rehashing of the same arguments and

positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not

to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”) (quoting

Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.

1992)).

When the objecting party has not properly objected to the magistrate judge’s findings, “the

court need only satisfy itself that there is no clear error on the face of the record in order to accept

the recommendation.” See Keaton v. United States, No. 14-21230-CIV, 2015 WL 12780912, at *1

(S.D. Fla. May 4, 2015); see also Lopez v. Berryhill, No. 17-CV-24263, 2019 WL 2254704, at *2

(S.D. Fla. Feb. 26, 2019) (stating that a district judge “evaluate[s] portions of the R & R not

objected to under a clearly erroneous standard of review” (citing Davis v. Apfel, 93 F. Supp. 2d

1313, 1317 (M.D. Fla. 2000))).

III. DISCUSSION

Movant raises thirty (30) objections to the Report and Recommendation. The Court notes

that Movant groups his objections that appear to relate to the Report and Recommendation’s

findings on Ground 3 and Ground 4, identified above, with his objections to the Report and

Recommendation’s findings on Ground 1 and Ground 2, which advance ineffective assistance of

counsel arguments. Specifically, Movant objects to Ground 3 and Ground 4 findings within the

Report and Recommendation that incorporate or reference findings on Ground 1 and Ground 2

within the Report and Recommendation. Thus, the Court, like Respondent, groups Movant’s

individual objections where they advance such overlapping arguments relating to the same

findings or recommendations in the Report and Recommendation, or where they relate to findings

or recommendations dependent on earlier findings on Ground 1 or Ground 2:

1. Objection No. 1: Movant renews his previous objections, (ECF Nos. 39, 44), to Magistrate

Judge Reid’s January 21, 2020 Paperless Order, (ECF No. 38), and February 21, 2020

Paperless Order, (ECF No. 41).

2. Objection No. 2: Movant objects to the entirety of the Report and Recommendation

because, according to Movant, it erroneously considers Movant’s initial Reply, (ECF

No. 65), instead of his Amended Reply (ECF No. 67).

3. Objection Nos. 3 through 17: Movant claims that the Report and Recommendation

misapplies governing caselaw under the Fifth Amendment’s Double Jeopardy Clause and

fails to find that kidnapping is a lesser included predicate offense constituting the element

“crime of violence” within the offense of interstate domestic violence. Thus, the Report

and Recommendation erroneously finds (1) that kidnapping and interstate domestic

violence are separate offenses for purposes of the Double Jeopardy Clause, (2) his trial and

appellate counsel were not ineffective for failing to raise this issue, (3) there was no

constructive amendment of the Superseding Indictment, and generally, (4) his sentence is

not illegal.

4. Objection Nos. 18 through 22: Movant asserts the Report and Recommendation

misconstrues his constructive amendment claim as a material variance claim with respect

to the jury instructions at issue in his underlying criminal case. As to the jury instructions,

Movant asserts that the Report and Recommendation erroneously finds the Superseding

Indictment provided sufficient notice that the jury would be instructed to consider two

additional and alternative definitions for “serious bodily injury.” According to Movant,

these two additional and alternative definitions result in surplusage when construing

§ 2261(b), violate the “absurdity doctrine” canon of statutory interpretation, and are the

result of Magistrate Judge Reid “legislating from the bench.” Thus, Movant contends that

the Report and Recommendation erroneously finds that his counsel were not ineffective

when they declined to pursue this claim.

5. Objection Nos. 23 through 27: Movant asserts that the Report and Recommendation

erroneously finds that (1) there was sufficient evidence to conclude that Movant committed

the crimes charged “from Virginia to Florida,” and (2) there was evidence in the record of

other beatings and sexual assaults during the course of that travel. Movant also objects to

the Report and Recommendation’s findings as they relate to the Confrontation Clause,

because Movant “has no idea what the Magistrate was addressing” on that point, because

he claims his grounds for vacatur do not arise under that clause. And, Movant objects to

the Report and Recommendation’s failure to address the Government’s bolstering the

victim’s testimony.

6. Objections Nos. 28 and 29: Movant objects to the Report and Recommendation in its

entirety and appears to incorporate by reference objections from earlier-filed objections,

(ECF No. 44), as they relate to his claim that his trial counsel was ineffective for failing to

pursue exculpatory DNA evidence. Movant objects to the Report and Recommendation’s

conclusion that he provides no evidence regarding his DNA claim, and argues that he

requires a hearing on this issue.

7. Objection 30: As to the Report and Recommendation’s findings on Movant’s cumulative

error claim, Movant objects to the Report and Recommendations conclusions, which

Movant characterizes as confusing. Movant appears to argue that the evidence against him

does not support his conviction.

See generally Objs.

The Court reviews each group of objections in turn, beginning with Objection No. 1.

A. Objection No. 1: Movant’s Prior Objections.

In Objection No. 1, Movant renews his objections to Magistrate Judge Reid’s January 21,

2020 Paperless Order, (ECF No. 38), and February 21, 2020 Paperless Order, (ECF No. 41). Objs.

at 2. In response, Respondent asserts that Movant’s previous objections all related to procedural

matters and that, to the extent they address substantive matters, those objections are raised again

elsewhere in Movant’s instant Objections. Objs. Resp. at 1.

In both Paperless Orders, Magistrate Judge Reid did not make any findings dispositive of

any claim or defense. Because Movant’s objections, (ECF Nos. 39, 44), to Magistrate Judge Reid’s

January 21, 2020 and February 21, 2020 Paperless Orders relate to matters “not dispositive of a

party’s claim or defense,” the clearly erroneous standard applies. Fed. R. Civ. P. 72(a) (“The

district judge in the case must consider timely objections and modify or set aside any part of the

order that is clearly erroneous or is contrary to law.”).

Generally, the Court does not find clear error except as set forth below, and where the Court

does find error, such error does not require remedial action from this Court.

Magistrate Judge Reid’s January 21, 2020 Paperless Order, (ECF No. 38), denied Movant’s

Motion for Sanctions, (ECF No. 34), and denied as moot Movant’s Motion for Extension of Time

to File a Reply, (ECF No. 30).6 Movant’s renewed objections, as incorporated in Objection No. 1,

are moot to the extent they challenge Magistrate Judge Reid’s January 21, 2020 Paperless Order,

(ECF No. 38), insofar as that order denied as moot his Motion for Extension of Time to File a

Reply, (ECF No. 30). At this point in the proceedings, the record indicates that Movant has had

an opportunity to file reply briefs, including his Reply to Respondent’s Second Amended Response

in Opposition to his Motion to Vacate, (ECF No. 65), which was considered in the Report and

Recommendation presently pending before this Court. See R&R at 2. To the extent Movant’s

renewed objections challenge Magistrate Judge Reid’s January 21, 2020 Paperless Order, (ECF

No. 38), insofar as that order denied his Motion for Sanctions, (ECF No. 34), the arguments

contained in Movant’s renewed objections are largely the same as those in his instant Objections.

See generally Objs. This Court finds no reason to address the two sets of objections separately.

In addition, the Court finds that no clear error was committed in concluding that the Motion for

Sanctions was appropriately denied because Respondent’s arguments are not frivolous or advanced

for an improper purpose. See (ECF No. 38). Thus, the Court finds no clear error necessitating the

reversal of Magistrate Judge Reid’s January 21, 2020 Paperless Order, (ECF No. 38).

6 To the extent Movant’s Motion to Stay, (ECF No. 30), was, in effect, a motion for an extension

of time, the motion was likewise denied as moot. See (ECF No. 38).

Magistrate Judge Reid’s February 21, 2020 Paperless Order, (ECF No. 41), summarily

granted Respondent’s Motion for Leave to Supplement Response to Defendant’s § 2255 Motion,

(ECF No. 40), the same day that motion was filed. Movant filed twenty pages of objections

containing ten individually numbered objections challenging that order, which he now purports to

incorporate within the instant Objections. (ECF No. 44). The Court declines to give credence to

Movant’s unsubstantiated claims that the February 21, 2020 Paperless Order, (ECF No. 41), must

have been the result of improper ex parte communications between Magistrate Judge Reid and

Respondent because Magistrate Judge Reid granted Respondent’s motion shortly after it was filed.

While it is true that the Local Rules of the Southern District of Florida provide a fourteen (14) day

response period to oppose a motion, followed by a seven (7) day reply period, Movant has now

had an opportunity to file objections to the Report and Recommendation and, in doing so, has

raised largely the same substantive arguments here as he did there, notwithstanding the arguments

contained in his Reply to the Government’s Second Amended Response, (ECF No. 65). And, to

the extent Movant claims Respondent was permitted to file a supplemental response to his

Amended Motion to Vacate without attaching a copy of the proposed amendment, as required by

Local Rule 15.1, that Local Rule does not apply because it is applicable to pleadings—a response

to a motion is not necessarily a pleading as defined by Federal Rule of Civil Procedure 7(a). See

Fed. R. Civ. P. 7(a); S.D. Fla. L.R. 15.1.

In sum, the Court is not persuaded that Magistrate Judge Reid’s Orders, (ECF Nos. 38, 41)

are clearly erroneous or, where error has been committed, that remedial relief is required from this

Court. Accordingly, Movant’s objections (ECF Nos. 39, 44) are overruled, and Movant’s

Objection No. 1 to the Report and Recommendation is overruled.

B. Objection No. 2: Movant’s Amended Reply.

In Objection No. 2, Movant challenges the Report and Recommendation in its entirety

because the Report and Recommendation considered Movant’s initial Reply, (ECF No. 65),

instead of his Amended Reply, (ECF No. 67). Objs. at 2. Respondent argues that there are no

material differences between Movant’s Reply and his Amended Reply, and Movant has reasserted

all the arguments he made in both his Reply and Amended Reply within his Objections to the

Report and Recommendation. Objs. Resp. at 2.

It is true that the Report and Recommendation considered Movant’s Reply. R&R at 2. It

is also true that Movant filed his Amended Reply without seeking leave from the Court. In any

event, the Court agrees that largely the same arguments in Movant’s Reply are advanced in his

Amended Reply. In fact, Movant confirms as much in his Amended Reply. See (ECF No. 67) at

17 (“[The Amended Reply] only expands the facts with greater particularity previously alleged in

the original reply [(ECF No. 65)] and contains only memoranda of law already before this Court.”

(emphasis added)).

Accordingly, the Court finds no clear error; thus, Movant’s Objection No. 2 is overruled.

C. Ineffective Assistance of Counsel Principles.

As noted above, Movant appears to have grouped his objections to findings on Ground 3

and Ground 4 within the Report and Recommendation with his objections to findings on Ground

1 and Ground 2 within the Report and Recommendation (i.e., Movant’s ineffective assistance of

counsel claims). Accordingly, the Court addresses Movant’s objections together where they

advance overlapping arguments or are dependent on findings made as to Ground 1 and 2 of the

Report and Recommendation. Before proceeding to Movant’s remaining Objections, which relate

to various ineffective assistance of counsel findings in the Report and Recommendation, the Court

first reviews principles applicable to ineffective assistance of counsel claims.

To establish a claim of ineffective assistance of counsel, Movant must show that counsel’s

performance was deficient and that the deficient performance prejudiced his defense. Strickland

v. Washington, 466 U.S. 668, 687 (1984). “[A] petitioner’s failure to establish either deficient

performance or prejudice is fatal to a Strickland claim.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d

1271, 1284 (11th Cir. 2012) (citation omitted) (emphasis added). “Claims of ineffective assistance

of appellate counsel are governed by the same standards applied to trial counsel under Strickland.”

Dell v. United States, 710 F.3d 1267, 1273 (11th Cir. 2013) (quoting Philmore v. McNeil, 575 F.3d

1251, 1264 (11th Cir. 2009)).

To prove deficiency, Movant must show that counsel’s performance “fell below an

objective standard of reasonableness” as measured by prevailing professional norms. Strickland,

466 U.S. at 688. Courts must “indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689. “[A]n attorney will not be held

to have performed deficiently for failing to perform a futile act, one that would not have gotten his

client any relief.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir. 2017) (collecting cases).

That is, “[a] lawyer cannot be deficient for failing to raise a meritless claim.” Freeman v. Att’y

Gen., 536 F.3d 1225, 1233 (11th Cir. 2008).

To prove prejudice, Movant “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. Counsel’s failure to raise a meritless claim is not prejudicial under

Strickland. See Hittson v. GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014).

D. Objections Nos. 3 Through 17: Double Jeopardy Clause Objections.

In the Report and Recommendation, Magistrate Judge Reid found that Movant’s counsel,

both trial and appellate, were not ineffective for failing to raise an alleged Fifth Amendment

Double Jeopardy Clause violation with respect to Movant’s conviction and sentence. See R&R

at 9–13. Specifically, Magistrate Judge Reid rejected Movant’s argument in his Amended Motion

that kidnapping and interstate domestic violence are multiplicitous for purposes of the Double

Jeopardy Clause, and, therefore, his counsel did not fail to raise that issue upon Defendant’s

conviction, at sentencing, and on appeal, as the argument would not have succeeded. See id. at 13.

Now, in Objections Nos. 3 through 17, the thrust of Movant’s argument is that the Report

and Recommendation incorrectly concluded that kidnapping and interstate domestic violence each

require elements that the other does not, as kidnapping is a lesser included predicate offense

constituting the “crime of violence” element within the offense of interstate domestic violence.

See Objs. at 3–17. Thus, Movant argues that the Report and Recommendation erred in finding

that (1) kidnapping and interstate domestic violence are separate offenses for purposes of the

Double Jeopardy Clause, and (2) his trial and appellate counsel were not ineffective by failing to

raise this issue. Id.

The Court agrees that the argument is meritless, thus Movant’s counsel was not ineffective

for failing to raise this alleged Double Jeopardy Clause violation upon Movant’s conviction and

on appeal. The Court begins by reviewing principles of the Double Jeopardy Clause.

1. Double Jeopardy Principles.

The Fifth Amendment’s Double Jeopardy Clause guarantees that no person shall be

“subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

The Double Jeopardy Clause consists of three separate protections: “[i]t protects against a second

prosecution for the same offense after acquittal,”; “[i]t protects against a second prosecution for

the same offense after conviction,”; and “[i]t protects against multiple punishments for the same

offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1989) (footnotes omitted). An indictment

violates the Double Jeopardy Clause’s protection against multiple punishments for the same

offense if it is “multiplicitous—that is, ‘if it charges a single offense in more than one count.’”

United States v. Gonzalez, 834 F.3d 1206, 1219 (11th Cir. 2016) (quoting United States v.

Williams, 527 F.3d 1235, 1241 (11th Cir. 2008)).

Courts apply what is commonly known as the Blockburger test to determine whether an

indictment is multiplicitous. That test is as follows: “where the same act or transaction constitutes

a violation of two distinct statutory provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires proof of a fact which the other

does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). This test is “one of statutory

interpretation in which [courts] examine the elements of each offense to determine whether

Congress intended to authorize cumulative punishments.” Williams, 527 F.3d at 1240. That is, an

indictment may be multiplicitous where “a legislature specifically authorizes cumulative

punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’

conduct under Blockburger.” Missouri v. Hunter, 459 U.S. 359, 368–69 (1983); see also id. at

366 (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause

does no more than prevent the sentencing court from prescribing greater punishment than the

legislature intended.”).

2. Application.

The thrust of Movant’s Objection Nos. 3 through 17 is that the federal kidnapping offense

is a lesser included predicate offense within the federal crime of interstate domestic violence,

constituting the element “crime of violence,” thus the Report and Recommendation incorrectly

concluded that Movant’s counsel were not ineffective when they did not raise this Double Jeopardy

Clause issue both after Movant was convicted and later on appeal. See generally Objs.

This Court disagrees—Movant’s counsel was not ineffective for failing to raise this issue

because it is meritless. The Court applies the Blockburger Test and arrives at the same conclusion

as the Report and Recommendation. Likewise, the Court rejects Movant’s argument that

kidnapping is a lesser included predicate offense constituting the element “crime of violence”

within interstate domestic violence.

Movant was charged and convicted of one count of kidnapping, in violation of 18 U.S.C.

§ 1201(a)(1), and two counts of interstate domestic violence, in violation of 18 U.S.C.

§ 2261(a)(1), (a)(2), and (b)(3).

The federal kidnapping statute makes it unlawful for a defendant to “seize[], confine[],

inveigle[], decoy[], kidnap[], abduct[], or carr[y] away and hold[] for ransom or reward or

otherwise any person . . . when the person is willfully transported in interstate or foreign

commerce.” 18 U.S.C. § 1201(a)(1).

The federal interstate domestic violence statute makes it unlawful for “[a] person who

travels in interstate or foreign commerce . . . with the intent to kill, injure, harass, or intimidate a

spouse, intimate partner, or dating partner, and who, in the course of or as a result of such travel

or presence, commits or attempts to commit a crime of violence against that spouse, intimate

partner, or dating partner.” 18 U.S.C. § 2261(a)(1). The statute also makes it unlawful for “[a]

person who causes a spouse, intimate partner, or dating partner to travel in interstate or foreign

commerce . . . by force, coercion, duress, or fraud, and who, in the course of, as a result of, or to

facilitate such conduct or travel, commits or attempts to commit a crime of violence against that

spouse, intimate partner, or dating partner.” 18 U.S.C. § 2261(a)(2).

The Eleventh Circuit identified the elements of kidnapping under § 1201(a)(1) upon review

of Movant’s case on direct appeal: “to support a conviction under 18 U.S.C. § 1201(a), the

government must demonstrate that the defendant (1) knowingly and willfully (2) transported in

interstate commerce (3) an unconsenting person who was (4) held for ransom, reward, or

otherwise.” United States v. Miers, 686 F. App’x 838, 843 (11th Cir. 2017) (citing United States

v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997)).

In contrast, the elements of the crime of interstate domestic violence under § 2261(a)(2)

are: “(1) the defendant is a spouse, intimate partner, or dating partner of the victim; (2) the

defendant caused the victim to travel in interstate commerce by force, coercion, duress, or fraud;

and (3) the defendant committed a crime of violence against the victim in the course of, as a result

of, or to facilitate the interstate travel.” United States v. Larsen, 615 F.3d 780, 787 (7th Cir. 2010)

(citing 18 U.S.C. § 2261(a)(2)). Similarly, the elements of interstate domestic violence under

§ 2261(a)(1) require that the defendant travel in interstate commerce, in place of causing the victim

to travel in interstate commerce. See 18 U.S.C. § 2261(a)(2).

Upon review of the elements of both kidnapping and interstate domestic violence, each

offense requires proof beyond a reasonable doubt of elements that the other does not. Magistrate

Judge Reid correctly recognized in the Report and Recommendation that kidnapping does not

require that the victim be a “spouse, intimate partner, or dating partner,” as is required under both

interstate domestic violence offenses. R&R at 13; see also 18 U.S.C. § 2261(a)(1), (a)(2).

Likewise, Magistrate Judge Reid correctly observed that interstate domestic violence, under both

§ 2261(a)(1) and § 2261(a)(2), does not require that the victim be held for “ransom, reward, or

otherwise,” as is required under the federal kidnapping offense. R&R at 13; § 1201(a).

Accordingly, because, as noted above, both offenses require proof of a fact which the other does

not, the Double Jeopardy Clause was not violated, and thus, Movant’s counsel were not ineffective

for failing to raise the meritless argument he now advances on collateral attack. Pinkney, 876 F.3d

at 1297.

Further, Movant assumes without conclusively establishing that kidnapping is necessarily

a crime of violence such that it is a predicate offense constituting the “crime of violence” element

within interstate domestic violence. However, it is not entirely clear that kidnaping is a crime of

violence that would necessarily be incorporated as a lesser included predicate offense within

interstate domestic violence. In fact, in other contexts, such as brandishing a firearm in furtherance

of a crime of violence under § 924(c), the Eleventh Circuit has recognized that kidnapping is not

a crime of violence.7 See, e.g., United States v. Simmons, 847 F. App’x 589, 592–93 (11th Cir.

2021) (“Our recent decision in United States v. Gillis, 938 F.3d 1181, 1206 (11th Cir. 2019), makes

clear that federal kidnapping, 18 U.S.C. § 1202(a),8 does not qualify as a crime of violence under

section 924(c).”).

Moreover, multiple circuits have rejected arguments that kidnapping and interstate

domestic violence are multiplicitous under the Double Jeopardy Clause:

The kidnapping statute requires that the state show that the victim was abducted

and was held for purposes beneficial to the kidnapper at the time state lines were

7 To the extent Movant argues that there was no other crime alleged other than kidnapping that

could serve as the “crime of violence” element for the interstate domestic violence offenses

alleged, the Report and Recommendation notes that the jury was instructed that a “crime of

violence” is defined as “the use, attempted use or threatened use of physical force or harm against

a person or conduct which, by its nature, presents a serious potential risk of physical injury to

another.” (CR-ECF No. 114) at 202–03, 205.

8 This Court respectfully observes that Gillis discusses § 1201(a). See United States v. Gillis, 938

F.3d 1181, 1206 (11th Cir. 2019).

crossed. The interstate domestic violence statute requires that the victim be a

spouse or intimate partner of the defendant, that the defendant crossed state lines

with the intent to injure, harass, or intimidate the victim, that a crime of violence

was engaged in intentionally either in the course of or as the result of such travel,

and that as a result of that crime of violence, bodily injury to the victim occurred.

It can therefore be said that a kidnapping conviction requires proof of a fact not

required by the interstate domestic violence statute (e.g., that the victim be held for

purposes beneficial to the defendant at the time state lines were crossed), and that

a conviction for interstate domestic violence requires proof of a fact not required

by the kidnapping statute (e.g., that the victim be a spouse or intimate partner, that

bodily injury to the victim resulted). See United States v. Sickinger, 179 F.3d 1091,

1093 (8th Cir. 1999) (identifying facts that are unique to both § 1201(a) and §

2261(a)); United States v. Bailey, 112 F.3d 758, 766–67 (4th Cir. 1997) (same);

United States v. Frank, 8 F. Supp. 2d 253, 282 n.26 (S.D.N.Y. 1998) (same).

Moreover, we cannot say that the district court committed plain error when it

determined Lankford’s sentence. That kidnapping is a lesser included offense of

interstate domestic violence is by no means clear or obvious under current law.

See United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508

(1993) (defining “plain” error to be error that is “clear” or “obvious”); Sickinger,

179 F.3d at 1093 (considering whether kidnapping was a lesser included offense

within interstate domestic violence and finding no plain error).

United States v. Lankford, 196 F.3d 563, 578 (5th Cir. 1999) (emphasis added); see also United

States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir. 1999) (noting that it was not plain error for the

district court to sentence the defendant for both kidnapping and interstate domestic violence to

concurrent terms of imprisonment); United States v. Bailey, 112 F.3d 758, 767 (4th Cir. 1997)

(“[W]e find that the interstate domestic violence statute proscribes conduct distinct from that

criminalized by the kidnapping statute.”); United States v. Larsen, 615 F.3d 780, 787 (7th Cir.

2010) (“Stated differently, Larsen’s argument is that the crime of interstate domestic violence

encompasses the crime of kidnapping. We disagree. The kidnapping statute requires that the

defendant ‘hold[ ] [the victim] for ransom or reward or otherwise.’ This ‘holding’ requirement is

an essential element of kidnapping and must be established in every case.” (alterations in

original)).

Accordingly, Movant fails to establish that his counsel were ineffective because they failed

to argue in the district court and on appeal that his conviction and sentence violated the Double

Jeopardy Clause because the argument is without merit. Freeman, 536 F.3d at 1233. Objection

Nos. 3 through 17 are overruled.

E. Objection Nos. 18 Through 22: Constructive Amendment and Improper Jury

Instructions.

In these objections, Movant first asserts the Report and Recommendation misconstrued his

constructive amendment claim as a material variance claim with respect to the jury instructions at

issue in this case. Objs. at 16–17. To the extent Movant objects to the Report and

Recommendation because he claims Magistrate Judge Reid “converted [his] constructive

amendment claim to a material variance claims,” Objs. at 17, this Court disagrees. The Report

and Recommendation discussed both constructive amendment and material variance within the

context of Movant’s ineffective assistance of counsel claim, and concluded that, based on the

charges in the Superseding Indictment, the instructions provided to the jury at Movant’s trial, and

the evidence presented at Movant’s trial, neither constructive amendment nor material variance

occurred. See R&R at 13–20. Thus, Magistrate Judge Reid found that Movant’s trial counsel were

not ineffective by failing to object to the jury instructions because such an objection would have

been non-meritorious. Id. The Court agrees with Respondent that the Report and

Recommendation’s discussion of material variance was likely done in an effort to liberally

construe Movant’s Amended Motion to Vacate under § 2255. See Objs. Resp. 4; see also R&R at

2 (“Construing the § 2255 motion liberally as afforded pro se litigants . . . .”). Movant’s Objection

No. 18 to the Report and Recommendation is therefore overruled to the extent he claims the Report

and Recommendation changed the ground for relief he asserted within his ineffective assistance

of counsel claim.

The remainder of Objection Nos. 18 through 22 argue that the Report and Recommendation

engaged in improper statutory interpretation constituting “legislating from the bench, prescribing

penalties for offenses from the bench and rendering the absurdity canon superfluous.” Objs. at 19.

Movant argues that Magistrate Judge Reid incorrectly concluded that his trial counsel were not

ineffective by failing to object to the jury instructions on interstate domestic violence and raise the

issue of constructive amendment of the Superseding Indictment. Id. at 20. This Court disagrees

because, again, the argument would not have succeeded if it had been raised.

Movant was charged in the Superseding Indictment in both Count 2 and Count 3 with

committing interstate domestic violence, with penalties charged under § 2261(b)(3).9 See

generally Superseding Indict. The Report and Recommendation observed that § 2261(b)(3)

provides that “[a] person who violates this section of section 2261A shall be fined under this title,

imprisoned . . . for not more than 10 years, if serious bodily injury to the victim results or if the

offender uses a dangerous weapon during the offense.” 18 U.S.C. § 2261(b)(3). Thus, Magistrate

Judge Reid looked to the definitions provided in § 2266, and the Report and Recommendation

noted that “the term ‘serious bodily injury’ has the meaning stated in section 2119(2),” which is

the federal carjacking statute. R&R at 16 (citing 18 U.S.C. § 2266(6) (2013)). The Report and

Recommendation traced the definition of “serious bodily injury,” observing that the term “serious

bodily injury” in § 2119(2) is “defined in section 1365 of this title, including any conduct

9 Count 2 charged that Movant “did travel in interstate commerce with the intent to kill, injure,

harass, and intimidate J.C.M., an intimate partner and dating partner, and did, in the course of, as

a result of, and to facilitate such conduct and travel, commit and attempt to commit a crime of

violence against J.C.M., in violation of” 18 U.S.C. § 2261(a)(1) and (b)(3). See generally

Superseding Indict. Count 3 charged that Movant “did cause J.C.M., his intimate partner and

dating partner, to travel in interstate commerce by force, coercion, duress, and fraud, and did, in

the course of, as a result of, and to facilitate such conduct and travel, commit and attempt to commit

a crime of violence against J.C.M., in violation of” 18 U.S.C. § 2261(a)(2) and (b)(3). Id.

that . . . would violate section 2241 or 2242 of this title.” R&R at 16–17 (quoting 18 U.S.C. §

2119(2)). Magistrate Judge Reid next noted that, under § 1365(h)(3), the term “serious bodily

injury” means “bodily injury which involves (A) a substantial risk of death; (B) extreme physical

pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the

function of a bodily member, organ, or mental faculty.” R&R at 17 (quoting 18 U.S.C. §

1365(h)(3)). And, the Report and Recommendation further noted that § 2241(a) provides that it is

a crime to “knowingly cause[] another person to engage in a sexual act (1) by using force against

that other person; or (2) by threatening or placing that other person in fear that any person will be

subjected to death, serious bodily injury, or kidnapping.” R&R at 17 (quoting 18 U.S.C. §

2241(a)). Magistrate Judge Reid observed that the jury at Movant’s trial was instructed that

“serious bodily injury” under § 2261(b)(3) means

bodily injury which involves a substantial risk of death, extreme physical pain,

protracted and obvious disfigurement, protracted loss or impairment of the function

of a bodily member, organ or mental faculty or a sexual act committed by either

use of force against a person, that is, J.C.M., or by threatening or placing J.C.M. in

fear that any person will be subjected to death, serious bodily injury or kidnapping.

R&R at 18 (quoting CR-ECF No. 114 at 203, 205–06). Accordingly, because the jury instructions

tracked the statutory scheme, the Report and Recommendation concluded that no constructive

amendment of the Superseding Indictment occurred, much less a material variance, therefore

Movant’s trial counsel were not ineffective by failing to pursue this non-meritorious claim. R&R

at 20.

The Court agrees with the Report and Recommendation that the instructions provided to

the jury tracked the statutory scheme under which Movant was charged in the Superseding

Indictment, as explained by Magistrate Judge Reid, and therefore the jury instructions did not

result in constructive amendment of the Superseding Indictment. Accordingly, the Court agrees

that Movant’s counsel was not ineffective by failing to object to the jury instructions. The law in

the Eleventh Circuit is clear that the definition of “serious bodily injury” within § 2119(2), which

is directly cross-referenced in § 2266(6), includes the conduct criminalized under § 2241. See

United States v. Dunn, 440 F. App’x 887, 890 (11th Cir. 2011) (“Pursuant to 18 U.S.C. §§ 2119(2)

and 2241(a)(1), (2), ‘serious bodily injury’ includes ‘knowingly caus[ing] another person to

engage in a sexual act—(1) by using force against that other person; or (2) by threatening or placing

that other person in fear that any person will be subjected to death, serious bodily injury, or

kidnaping.’” (alterations in original)). The jury instructions followed this Eleventh Circuit

precedent and did not constructively amend the Superseding Indictment—Movant’s counsel were

not ineffective by failing to object on constructive amendment grounds, because, as discussed

above, the argument would not have succeeded.

According to Movant, “any interpretation of section 2261(b)(3) (physical injury)

(weapons) that would include the aggravated sexual abuse provisions from section 2261(b)(4)

would render section 2261(b)(4) superfluous, void, or insignificant.” Objs. at 18.

The Court disagrees. Section 2261(b)(4) provides:

A person who violates this section or section 2261A shall be fined under this title,

imprisoned . . . . as provided for the applicable conduct under chapter 109A if the

offense would constitute an offense under chapter 109A (without regard to whether

the offense was committed in the special maritime and territorial jurisdiction of the

United States or in a Federal prison).

§ 2261(b)(4). Chapter 109A of Title 18 of the United States Code is entitled “Sexual Abuse” and

includes § 2241. However, § 2261(b) sets forth the penalties for violating § 2261(a). Interpreting

§ 2261(b)(3) to include aggravated sexual assault does not necessarily renders § 2261(b)(4)

superfluous, as (b)(3) and (b)(4) set forth different maximum penalties: the statutory maximum

penalty under § 2261(b)(3) is ten (10) years of imprisonment, whereas § 2261(b)(4) provides for

imprisonment “as provided for the applicable conduct under chapter 109A,” 18 U.S.C.

§ 2261(b)(4), which, for a violation of § 2241(a) for example, could be “for any term of years or

life, or both,” 18 U.S.C. § 2241(a). Movant fails to establish that this violates the absurdity

doctrine, as Movant asserts—Movant cites to no authority establishing that it was absurd for

Congress to create discretion in this way. See United States v. Cespedes, 151 F.3d 1329, 1332

(11th Cir. 1998) (“The Supreme Court has unambiguously upheld the prosecutor’s ability to

influence the sentence through the charging decision.”). Accordingly, the Court does not agree

that Movant’s counsel would have been able to obtain the relief Movant seeks, and therefore, they

were not ineffective. See Freeman, 536 F.3d at 1233. Thus, Movant’s Objection Nos. 18 through

22 are overruled.

F. Objections 23 Through 27: Failure to Effectively Cross-Examine the

Government Cell-Site Expert Witness.

In the Report and Recommendation, Magistrate Judge Reid found that Movant’s counsel

were not ineffective by failing to effectively cross-examine the government’s cell-site expert

witness regarding his scientific findings. R&R at 20–23. In his Amended Motion, Movant argued

that the government’s cell-site expert witness

provided irrefutable direct evidence that proves the material testimony of J.C.M.,

regarding the alleged kidnapping after leaving the Mr. Fuel Truckstop [in Virginia],

is an absolute impossibility and completely false. S.A. Magnuson has conclusively

shown Mr. Miers’ locations approximately twenty (20) miles south of the truckstop

at 3:27 & 3:29 P.M.; and approximately sixty (60) miles south of the truckstop at

4:11 P.M.; when [he] was physically standing inside the truckstop at 3:04 P.M..

Mr. Miers could not have reached these locations unless traveling non-stop at

highway speeds (65 MPH). . . . The testimony of J.C.M., the-only direct victim

witness, is completely false; as S.A. Magnuson’s cell site location tracking analysis

clearly and indisputably proves.

Mot. at 11 (emphasis omitted). Movant claimed that this is because the government’s cell-site

expert’s testimony was

in direct opposition to J.C.M.’s material testimony of the kidnapping she alleged

took place. J.C.M. testified: “After we left Mr. Fuel [in Virginia] . . . [Movant]

stopped the truck on the side of the road . . .” J.CM. further testified to various

alleged abuses accompanying this alleged kidnaping that continued for, “an hour

and a half or two hours.”

Mot. at 10 (footnotes omitted) (ellipses in original).

The Report and Recommendation concluded that “even if counsel had further questioned”

the government’s cell-site data expert witness, “Movant[] cannot establish that any such

discrepancy would have resulted in an acquittal of the charges,” thus he cannot demonstrate

prejudice under Strickland. R&R at 20–23. The Report and Recommendation noted that Movant

“misinterpret[s] the record because his convictions were not based solely on that one, isolated

incident,” in relation to the Mr. Fuel truck stop in Virginia, “but rather spanned numerous days in

August [of] 2014.” Id. at 21. Further, the Report and Recommendation noted that “[e]ven if, as

suggested, further vigorous cross-examination by counsel had discredited J.C.M.’s testimony,

there was still more than sufficient evidence of other beatings and rapes during the course of travel

from Virginia to Florida to support the charged offenses.” Id. at 23.

In his Objections, Movant asserts that on direct appeal the Eleventh Circuit “found—based

on the very testimony in question here—that Miers transported J.C.M. ‘from Virginia to Florida,’

against her will. Thus, if not ‘from Virginia to Florida,’ then no federal hook.” Objs. at 22

(emphasis omitted). Movant claims that “the false testimony—the only evidence in the record—

‘from Virginia to Florida’, is the ‘isolated incident in question.’” Id. Movant relies on the fact

that his “offenses were found by the Circuit Court to be based ‘from Virginia to Florida’—not any

location north of Virginia, but, specifically, Ruthers Glen, VA. (to FLA).” Id. Movant continues,

arguing that Magistrate Judge Reid is “dead wrong” that there is other evidence, as “in fact no

evidence of any wrong doing [sic] from Virginia at 3:04 P.M. until Stewart, [sic] Florida at 10:27

A.M” because “the alleged false testimony ‘from Virginia to Florida’ DID NOT contain one single

word of sexual misconduct/rape.” Id. at 23. Movant also objects to the Report and

Recommendation’s failure to address the government’s bolstering the victim’s testimony—

Movant claims this testimony was false. Id. at 24

To the extent in his Objections that Movant latches on to the phrase “from Virginia to

Florida” in the Eleventh Circuit opinion reviewing his case on direct appeal, it is correct that the

Eleventh Circuit stated as follows:

J.C.M. testified that Mr. Miers inflicted violent acts upon her under threat of death

to her and her family for his own sexual gratification. See id. (concluding that the

language “ransom, reward, or otherwise” encompassed an explicit admission that

defendant kidnapped victim for “companionship”). The evidence also supported

a finding that Mr. Miers willfully transported J.C.M. across state lines from

Virginia to Florida. A reasonable jury could therefore conclude that the evidence

established that Mr. Miers kidnapped and willfully transported J.C.M.

[ . . . ]

The evidence sufficiently supported a finding that Mr. Miers communicated

several threats to J.C.M., abused her, and forced her to continue with him from

Virginia to Florida. Accordingly, a reasonable jury could conclude that Mr. Miers

formulated the requisite intent at the time he crossed state lines, and abused J.C.M.

in the course of such travel, therefore satisfying the interstate commerce element.

Miers, 686 F. App’x at 844 (emphasis added). However, Movant’s Objections neglect that the

Eleventh Circuit opinion also notes as follows

J.C.M. testified that for several days, Mr. Miers raped, bound, and physically and

verbally abused her. On August 19, Mr. Miers stopped at a truck stop in Virginia,

where he and J.C.M. entered private showers. There he locked her up against

her will and strangled, beat, and spit on her. After leaving the truck stop, they

continued to drive and Mr. Miers beat J.C.M. until she admitted her infidelity. Mr.

Miers then strangled J.C.M., bound her with duct tape, gagged her, and told her he

was going to kill her. The abuse continued, and Mr. Miers filmed while he raped

and demeaned her. J.C.M. was finally able to escape when they arrived in Medley,

Florida, on August 21, 2014.

Id. at 841 (emphasis added). The Eleventh Circuit opinion did not find, as Movant suggests in his

Objections, that the conduct upon which his conviction rests was an isolated incident that occurred

over the course of one or two hours after departing the Mr. Fuel truck stop in Virginia. Movant’s

Objections on this point appear to be based on a misunderstanding of the record.

In any event, the Court agrees with the Report and Recommendation that Movant fails to

show that he was prejudiced when his trial counsel did not cross-examine the government’s expert

on the specific alleged conflict between the cell-site data and the victim J.C.M.’s testimony. As

Respondent correctly notes, “[t]he jury had this ‘conflict’ for their consideration. Counsel’s

supposed deficient performance only failed to point out what was already before the jury (i.e.,

counsel’s []ineffective cross-examination did not keep a matter from the jury’s consideration).”

(ECF No. 42) at 21. And, a reasonable jury could have concluded, as Respondent persuasively

argued in its response to Movant’s Amended Motion that:

even if counsel had engaged in the cross-examination Movant suggests, it would

not have made a difference. Here, the jury could have resolved the supposed

inconsistency by concluding that J.C.M.’s harrowing experience preceding and

during that stop led her to believe that the abuse and torture lasted for “an hour and

half to two hours” because that is what it felt like to J.C.M., though not technically

correct. Likewise, the jury could have heeded Agent Magnuson’s cautionary

testimony that cellular telephones “typically connect” to the nearest cell tower—

meaning, not always (e.g. [CR-DE 113]:67-8, 71, 76, 94, 96-8). The jury could

also have concluded that Movant travelled the “impossible” distance in the given

time because he was travelling more than 65 m.p.h. he claimed in his motion.

(ECF No. 42) at 24–25. Accordingly, given the record, the fact that this conflict was already before

the jury, the fact that Movant’s counsel had an opportunity to cross-examine J.C.M., and the

substantial other evidence in the record sufficient to support Movant’s conviction even if Movant’s

counsel had cross-examined J.C.M. on this alleged conflict,10 the Court agrees with Magistrate

10 This Court also agrees with the Report and Recommendation that there was sufficient evidence

of other threats, abuse, beatings, and sexual assaults in the record upon which a reasonable jury

could find that Movant committed the crimes charged. See R&R at 19–20 (summarizing evidence

Judge Reid that Movant cannot demonstrate prejudice under Strickland—that if his counsel had

questioned J.C.M. about this specific alleged conflict, the result of his trial would have been

different. See R&R at 23.

As to Objection No. 27, in which Movant argues that the Report and Recommendation

failed “to address the government’s bolstering of J.C.M.’s testimony, albeit false testimony, and

vouching for J.C.M.’s honesty, albeit dishonesty,” Objs. at 24, it is true that the Report and

Recommendation does not appear to discuss whether the government bolstered J.C.M.’s

testimony. See generally R&R. It is also true that it is not clear that Movant raised in his Amended

Motion that his trial counsel was ineffective by failing to object to any allegedly improper

bolstering of witness testimony at trial. See generally Mot. Rather, to the extent Movant’s

Amended Motion discusses the government bolstering J.C.M.’s testimony, the Amended Motion

does so expressly within the context of Movant’s trial counsel’s alleged failure to effectively

cross-examine J.C.M. on the conflict alleged above. Specifically, the Amended Motion states:

Second, Trial Counsel’s failure to expose J.C.M.’s false testimony and impeach her

credibility[] allowed the government to capitalize on it and utilize it to bolster

J.C.M.’s credibility in their closing argument when AUSA Johanes stated: “the

defendant is stopped. Is [J.C.M.] making that up? No she’s not.” The AUSA

continued with: “What do you know that corroborated what [J.C.M.] is

saying? . . . He calls his best friend Tony (at 3:27 p.m.), and tells Tony, look, I got

this girl tied-up.” Mr. Miers was extremely prejudiced by the bolstering of this

false testimony and the government vouching for J.C.M.’s honesty, when she was

scientifically proven to be lying. Had Trial Counsel exposed J.C.M.’s false

testimony, the government would have been required to correct it, and would have

prevented the government from capitalizing on it in closing, there is more than a

reasonable probability Mr. Miers would not have been found guilty of the

completely fabricated kidanpping.

Mot. at 12 (emphasis added) (ellipses in original).

presented at trial within the context of Movant’s constructive amendment claim in the instant

Amended Motion to Vacate); see also Miers, 686 F. App’x at 844.

The Court will not permit Movant to amend his Amended Motion by way of his Objections

to the Report and Recommendation. But, even if Movant had argued in his Amended Motion that

his trial counsel was ineffective because they failed to object the government’s bolstering J.C.M.’s

allegedly false testimony, such objection would not have been meritorious, and Movant is unable

to demonstrate that he was prejudiced under Strickland.

“Improper bolstering occurs when the government places its prestige behind the witness,

or when the government suggests that information not presented to the jury actually supports the

witness’s credibility.” United States v. Reeves, 742 F.3d 487, 502 (11th Cir. 2014) (citing United

States v. Bernal–Benitez, 594 F.3d 1303, 1313–14 (11th Cir. 2010)). “The rule against bolstering

does not, however, prevent the prosecutor from commenting on a witness’s credibility, which can

be central to the government’s case.” United States v. Bernal-Benitez, 594 F.3d 1303, 1314 (11th

Cir. 2010) (citing United States v. Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991)). Movant

asserts that the government bolstered J.C.M.’s testimony as follows:

[I]n their closing argument when AUSA Johannes stated: “The defendant is

stopped. Is J.C.M. making that up? No she’s not.” The AUSA continued with:

“What do you know that corroborated what Jessica is saying? . . . He calls his best

friend Tony [at 3:27 p.m.], and tells Tony, look, I got this girl tied-up”. Mr. Miers

was extremely prejudiced by the bolstering of this false testimony and the

government vouching for J.C.M.’s honesty, when she was scientifically proven to

be lying.

Mot. at 12 (alteration in original). Here, the government did not point to any evidence that was

not already presented to the jury. See (CR-ECF No. 112) at 47–48. Nor did the government place

its prestige behind J.C.M. Thus, Movant cannot demonstrate that the government bolstered

J.C.M.’s testimony or that his counsel was ineffective by failing to raise this argument.

Last, to the extent Movant objects to the Report and Recommendation’s consideration of

the Confrontation Clause of the Sixth Amendment because Movant “has no idea what the

magistrate was addressing,” this is not a proper objection and the Court need only satisfy itself that

there is no clear error. On this point, the Court finds no clear error in the Report and

Recommendation’s references to the Sixth Amendment’s Confrontation Clause in light of

Movant’s claim that his counsel failed to effectively cross-examine a government witness.

Because Movant cannot demonstrate that his trial counsel was ineffective, the Report and

Recommendation correctly concluded that Movant’s claims for relief predicated on that argument

fails. See Freeman, 536 F.3d at 1233. Accordingly, Movant’s Objection Nos. 23 through 27 are

overruled.

G. Objections 28 Through 29: Failure to Investigate Allegedly Exculpatory DNA

Evidence.

In the Report and Recommendation, Magistrate Judge Reid noted the timeline at issue: in

November of 2014, the government provided the defense with an October 23, 2014 DNA report;

Movant’s trial began on December 8, 2014; Movant’s trial ended on December 11, 2014. R&R at

23–24. The Report and Recommendation notes that Movant claims his trial counsel was

ineffective for “doing nothing” with the October 23, 2014 DNA report. Id. at 23. Specifically, in

his Amended Motion, Movant asserts that his trial counsel was “unprepared and unable to defend

Mr. Miers with the exculpatory DNA reports which clearly shows that the ‘ejaculate’ did not match

Mr. Miers.” Mot. at 14. According to Movant,

Had Trial Counsel presented the fact that J.C.M., who indisputably had showered

and changed clothes, immediately prior to the alleged kidnapping, had the

unidentified and unmentioned semen from two (2) or more men in her pants, and

not that of Mr. Miers, with an F.B.I. Laboratory report and CODIS results to support

and prove it; there is more than a reasonable probability the result of the proceeding

would have been different, i.e., Mr. Miers would not have been found guilty of

kidnapping.

Id.

Now, in Objection Nos. 28 and 29, Movant objects to the Report and Recommendation in

its entirety and appears to incorporate by reference objections from his earlier filed objections,

(ECF No. 44), insofar as they relate to his claim that his trial counsel were ineffective by failing

to pursue exculpatory DNA evidence. Objs. at 25. In addition, Movant objects to the Report and

Recommendation’s conclusion that he provides no evidence regarding his DNA claim, and argues

that he requires an evidentiary hearing as to this issue. Id.

Movant is mistaken.

In short, the Court agrees with the Report and Recommendation. Contrary to Movant’s

assertion in his Amended Motion, the October 23, 2014 DNA report does not exculpate Movant.

The October 23, 2014 DNA report states that semen was found on J.C.M.’s pants; the report does

not say that that semen was not Movant’s—the report does not indicate that that DNA was tested

against Movant’s DNA. See generally (ECF No. 42-1). In fact, per the January 16, 2015 FBI

Laboratory Report from after Movant was convicted, conducted upon a “routine search of the FBI

CODIS database,” Movant’s DNA may have matched against one of the items on which semen

was found in the October 23, 2014 report—the victim’s pants. See (ECF Nos. 42-1, 42-2).

Specifically, after Movant was convicted at trial, a CODIS report indicated a “possible association”

between Movant’s DNA and the semen found on the victim’s pants that were tested as part of the

October 23, 2014 DNA report, however, as is also noted in the Report and Recommendation, “a

confirmation sample from the identified suspect must be acquired to provide a conclusion about

[the] possible DNA association.” (ECF No. 42-2).

Thus, if Movant’s counsel had pursued the DNA evidence Movant argues they were

deficient for not pursuing, it is likely Movant would have been further inculpated. And, in any

event, as discussed at length in the Report and Recommendation and as discussed above herein,

there was more than sufficient other evidence adduced at trial to support Movant’s conviction in

this case. An evidentiary hearing is unnecessary. This Court agrees with the Report and

Recommendation that it is best not to second-guess Movant’s trial counsel’s decision not to

conduct further, likely inculpatory, DNA investigation. This is especially so in light of the strategy

defense counsel pursued at trial arguing that any sexual contact between Movant and the victim

was consensual.11 See (CR-ECF No. 111) at 66–73; see also (CR-ECF No. 32) (noting that

Movant’s trial counsel had informed government counsel that Movant’s “defense would be that

Victim J.C.M. consented to being with [Movant] on the dates at issue and to the sexual acts that

occurred during that time” and that “[Movant] would argue that J.C.M. liked to engage in ‘rough

sex’”). Accordingly, the Court agrees with Magistrate Judge Reid that Movant’s trial counsel were

not deficient by failing to pursue this DNA evidence further. See R&R at 25; Freeman, 536 F.3d

at 1233. Movant’s Objection Nos. 28 through 29 are overruled.12

11 At the very beginning of the defense’s opening statement, Movant’s trial counsel referred to

Movant’s and the victim’s relationship as “a roller-coaster relationship” in which they would

“swing continuously between conflict. They would swing with their words. They would swing

back and forth with their actions and their deeds.” (ECF No. 111) at 66. Counsel noted that the

jury would see photographs, and that “the extremes that [Movant and J.C.M.] had in their passions

were something which is probably going to be very sometimes hard for us to understand, maybe

even hard to look at.” Id. Defense counsel further stated:

Was there physical acts? Yes. Did things maybe at some point get out of hand?

Yes. But there was making up. And they would swing back and forth, back and

forth. Why? What causes a couple to do this? Who knows? But they do. And

you’re going to see it.

Id. at 72.

12 Movant does not appear to object to the Report and Recommendation’s finding that Ground 4

of the Amended Motion is untimely because it does not relate back. See R&R at 3, 6, 29. The

Court finds no clear error in the finding that Movant’s Ground 4, which relate to alleged Brady

and Giglio violations, is untimely and does not relate back to the Amended Motion’s claim that

Movant’s trial counsel were ineffective by failing to pursue DNA evidence further. See Davenport

v. United States, 217 F.3d 1341, 1346 (11th Cir. 2000); see also Ochoa v. United States, No.

07-22659-CIV, 2010 WL 11694499, at *2 (S.D. Fla. Apr. 9, 2010).

H. Objection No. 30: Cumulative Error.

In Objection No. 30, Movant contests the Report and Recommendation’s findings on

Movant’s cumulative error claim as confusing and appears to argue that the evidence against him

does not support his conviction because the government did not prove the element of holding

essential for the crime of kidnapping, as argued earlier. Objs. at 26. Movant also renews his

request for an evidentiary hearing. Id. Respondent argues that the Report and Recommendation

correctly concludes that Movant’s cumulative error claim fails because no error was committed in

the first instance in the underlying criminal case. Objs. Resp. at 6.

The Court finds that Objection No. 30 is not a proper objection to the Report and

Recommendation. As the Court noted above, a party’s objections are improper if they expand

upon and reframe arguments already made and considered by the magistrate judge, or simply

disagree with the magistrate judge’s conclusions. See Melillo, 2018 WL 4258355, at *1. Movant’s

Objection No. 30 restates prior objections made earlier within his Objections, disagrees with and

characterizes the findings in the Report and Recommendation as confusing, and renews his request

for an evidentiary hearing. See Objs. at 25. Thus, the Court need only satisfy itself that there is

no clear error. The Court finds no clear error, and the findings in the Report and Recommendation

are not confusing, as Movant asserts. Accordingly, Objection No. 30 is overruled.

In sum, the Court overrules all of Movant’s objections to the Report and Recommendation.

As to those findings in the Report and Recommendation to which Movant does not object, the

Court agrees with those findings. See Fed. R. Civ. P. 72(b).

IV. MOTION FOR RECONSIDERATION

Movant also requests that this Court reconsider its February 4, 2022 Paperless Order

denying his Motion for Leave (If Required) to File the Attached Amended Objections to the

Magistrate’s Report Pursuant to Fed. R. Civ. P. 15(a)(1)(B), (ECF No. 87). (“Recon. Mot.”) (ECF

No. 89). Therein, the Court declined to permit Movant to file amended objections “as a matter of

course.” Id. The Court’s Paperless Order noted the Court had already stricken Movant’s amended

objections from the docket on two occasions. Id. Further, the Court observed that objections to a

report and recommendation of a United States Magistrate Judge are “NOT enumerated as

pleadings within Rule 7(a)” of the Federal Rules of Civil Procedure, thus Rule 15(a), cited to by

Movant, did not provide him with the relief he sought. Id.

“Reconsideration is an extraordinary remedy to be employed sparingly.” Holland v.

Florida, No. 06-20182-CIV-SEITZ, 2007 WL 9705926, at *1 (S.D. Fla. June 26, 2007) (citation

and internal quotation marks omitted). “The only grounds for granting a motion for

reconsideration ‘are newly-discovered evidence or manifest errors of law or fact.’” United States

v. Dean, No. 20-11603, 2020 WL 7655426, at *2 (11th Cir. Dec. 23, 2020) (quoting Arthur v.

King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam)). A motion for reconsideration should

raise new issues, not merely address issues litigated previously. Socialist Workers Party v. Leahy,

957 F. Supp. 1262, 1263 (S.D. Fla. 1997). “A party’s disagreement with the court’s decision,

absent a showing of manifest error, is not sufficient to demonstrate entitlement to relief.” Dean,

2020 WL 7655426, at *2 (citing Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th

Cir. 2010)).

Here, Movant argues that, until this Court’s February 4, 2022 Paperless Order stating that

objections are not pleadings, Movant lacked such clarity, and it took three motions over the course

of three months to arrive at that conclusion. Recon. Mot. at 2. Movant claims that the fact that

objections are not pleadings is not a substantial reason to deny the leave to amend. Id. at 3. Movant

asserts that “there are hundreds, if not thousands of ‘Amended Objections to the Report and

Recommendations of the Magistrate Judge’ contained in the Case Law of the District Courts of

this Country, this Circuit, and specifically [this District].” Id. Movant argues this Court did not

set forth why there was no substantial reason to deny him leave to amend, and that amended

objections are permitted. See generally id. According to Movant, this Court’s denial of his motion

to amend his objections as a matter of course under Rule 15(a) was based on a technicality—

citation to the wrong statute or rule. Id. Movant claims that each of his attempts to amend his

objections was timely and procedurally correct.

The Court finds that Movant has not satisfied the heavy burden required for

reconsideration. To begin, Movant’s motion for reconsideration cites to cases discussing the

standard applicable when deciding whether to permit a plaintiff leave to amend a pleading. Recon.

Mot. at 4 (citing Foman v. Davis, 371 U.S. 178 (1962); Pioneer Metals, Inc. v. Univar USA, Inc.,

168 F. App’x 335 (11th Cir. 2006); United States ex rel. Feingold v. Palmetto Gov’t Benefits

Admins., 477 F. Supp. 2d 1187 (S.D. Fla. 2007)). Movant has not pointed the Court to any new

evidence that would support his motion for reconsideration. Nor has Movant pointed the Court to

any manifest error of law. To the extent that Movant claims that reconsideration is required to

prevent manifest injustice, this Court disagrees. This Court previously provided Movant with an

additional forty-five (45) days to submit his initial objections to the Report and Recommendation.

(ECF No. 73). The Court also permitted Movant to exceed the page limitation for his Objections.

(ECF No. 77). Movant has already been warned that this Court will not entertain piecemeal

litigation. See, e.g., (ECF Nos. 52, 56). The Court will not permit continual amendments from

delaying the adjudication of this case.

For these reasons, Movant’s Motion for Reconsideration will be denied.

V. CERTIFICATE OF APPEALABILITY

After careful consideration of the record in this case, the Court declines to issue a certificate

of appealability (“COA”). A movant has no absolute entitlement to appeal a district court’s final

order denying his motion to vacate. Rather, to pursue an appeal, a movant must obtain a COA.

See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009).

Issuance of a COA is appropriate only if a litigant makes “a substantial showing of the

denial of a constitutional right.” § 2253(c)(2). To do so, litigants must show that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, Magistrate Judge Reid found that “Movant

has not made a substantial showing of the denial of a constitutional right.’” R&R at 34. The Court

agrees with Magistrate Judge Reid’s finding; a COA shall not issue.

VI. CONCLUSION

Movant has failed to set forth an entitlement to habeas relief.13 Accordingly, UPON

CONSIDERATION of the Amended Motion to Vacate pursuant to § 2255, Respondent’s

Response, the Report and Recommendation, Movant’s Objections, Respondent’s Response to

Movant’s Objections, the pertinent portions of the record, and being otherwise fully advised in the

premises, it is hereby ORDERED AND ADJUDGED that Movant’s Objections (ECF No. 79) are

OVERRULED, Magistrate Judge Reid’s Report and Recommendation (ECF No. 71) is

ADOPTED, Movant’s Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence by a Person in Federal Custody (ECF No. 11) is DENIED, and no certificate of

13 No evidentiary hearing is warranted because “the files and records of the case conclusively

show that the [Movant] is entitled to no relief.” 28 U.S.C. § 2255(b); see also Holmes v. United

States, 876 F.2d 1545, 1553 (11th Cir. 1989) (finding that a hearing is not warranted in a § 2255

case where claims are “patently frivolous,” “based upon unsupported generalizations,” and/or

“affirmatively contradicted by the record”) (citation and internal quotation marks omitted).

appealability shall issue. It is further ORDERED AND ADJUDGED that Movant’s Motion for

Reconsideration of Order Denying Petitioner’s Motion for Leave to Amend Objections to the

Magistrate’s Report (ECF No. 89) is DENIED. The Clerk of Court is INSTRUCTED to CLOSE

this case. All pending motions, if any, ace DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of March, 2022.

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

Cc: All counsel of record

Timothy John Miers

11031-050

Tucson-USP

United States Penitentiary

Inmate Mail/Parcels

Post Office Box 24550

Tucson, AZ 85734

PRO SE

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