King v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-23858-BLOOM

(Case No. 19-cr-20272-BLOOM)

MATTHEW ALEXANDER KING,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

/

ORDER ON AMENDED MOTION UNDER 22 U.S.C. § 2255

THIS CAUSE is before the Court on Matthew Alexander King’s (“Movant”) pro se

Amended Motion Under 28 U.S.C. § 2255, ECF No. [20] (“Amended Motion”) raising ineffective

assistance of counsel, due process, and actual innocence challenges to his underlying criminal

conviction in Case No. 19-cr-20272-BLOOM. The Court has carefully considered the Amended

Motion, Respondent’s Response, the record in this case, the applicable law, and is otherwise fully

advised. For the reasons set forth below, the Amended Motion is denied on Grounds One, Two,

Three, and Five and ruling is reserved on Grounds 4 and 6.

I. BACKGROUND

On May 9, 2019, Movant was indicted on one count of Retaliation against a Federal

Official, in violation of Title 18, United States Code, Section 115(a)(1)(B) (Count 1); four counts

of Solicitation to Commit a Crime of Violence, in violation of Title 18, United States Code, Section

373(a) (Counts 2-5), and one count of Use of Interstate Commerce Facilities in the Commission

of Murder-for-Hire, in violation of Title 18, United States Code, Section 1958(a) (Count 6). See

Cr-ECF No. [30] (“Indictment”). 1

On February 10, 2020, Movant executed a written plea agreement in which he agreed to

plead guilty to Counts 1 and 6 of the Indictment in exchange for the dismissal of the remaining

counts. See Cr-ECF No. [53] (“Plea Agreement”). In relevant part, Movant agreed that:

“By signing this agreement, the defendant acknowledges that the defendant has

discussed the appeal waiver set forth in this agreement with the defendant’s

attorney. The defendant further agrees, together with this Office, to request that the

Court enter a specific finding that the defendant’s waiver of his right to appeal the

sentence imposed in this case and his right to appeal his conviction in the manner

described above was knowing and voluntary.”

Id. at 6. Movant also adopted the facts provided in the Factual Proffer, see Cr-ECF No. [52]

(“Factual Proffer”), which states in relevant part:

“KING was arrested by Special Agent J.G. of the Federal Bureau of Investigation

on June 26, 2018, for attempting to hire an individual (A.R.) to murder certain

members of his wife’s family (N.M., J.M., and M.S.). KING was then prosecuted

by Assistant United States Attorney D.N., of counsel to the United States Attorney

for the Southern District of Florida. On July 10, 2018, a federal grand jury indicted

KING with one count of Use of Interstate Commerce Facilities in the Commission

of Murder-for-Hire, in violation of Title 18, United States Code, Section 1958(a).

The indictment was assigned to United States District Court Judge R.S. and KING

retained defense attorney R.A. to represent him.

On October 9, 2018, KING pled guilty before Judge R.S. and admitted the sole

count of the indictment. On January 14, 2019, KING was sentenced by Judge R.S.

to 97 months imprisonment followed by 3 years of supervised release.

Beginning in October 2018 and continuing through February 2019, KING began

verbally asking other inmates in the Federal Detention Center (FDC) in Miami,

Florida, to assist him in finding a hit-man to murder the same members of his wife’s

family referenced above (N.M., J.M., and M.S.). KING also asked for the hit-man

to murder the government witness who cooperated against him (A.R.), the federal

agent who arrested him (J.G.), the federal prosecutor handling his case (D.N.), his

retained attorney (R.A.) and the presiding Judge (R.S.).

1 References to docket entries in Movant’s criminal case, Case No. 19-20272-CR-BLOOM, are denoted

with “Cr ECF No.”

KING wrote detailed letters on at least fifteen occasions to either an inmate at FDC

or to a notional hit-man explaining how he wanted each of these eight victims

murdered. KING explicitly stated that he wanted Judge R.S., AUSA D.N., and FBI

Agent J.G. murdered because of how KING’s case was handled by each of them

during his prosecution. He further stated that he wanted confidential informant A.R.

murdered because of A.R.’s cooperation with law enforcement which led to

KING’s arrest. KING specifically named each of the eight victims and describes

them with particularity.

On February 6, 2019, law enforcement gave the phone number of an undercover

employee (U.C.E. #8543) to an inmate at FDC who informed on KING’s plot. The

inmate subsequently gave the number to KING, telling KING that it was the contact

number of a hit-man. That same date, KING called U.C.E. #8543 on two occasions

using a telephone at FDC. In the two calls made by KING, both of which were

recorded pursuant to FDC policy, KING solicits U.C.E. #8543 to kill the victims

listed herein. In exchange for the murders, KING agrees to pay a sum of currency

to U.C.E #8543.

On February 13, 2019, U.C.E. #8543 surreptitiously video recorded a meeting

between him and KING at FDC. During the meeting, KING explicitly directs how

he wanted U.C.E. #8543 to murder each of the victims and informs U.C.E. #8543

that KING will pay him a sum of currency if the murders are carried out.

KING agrees that, from December 2018 through February 13, 2019, in Miami-

Dade County, in the Southern District of Florida, he did threaten to murder United

States District Court Judge R.S. on more than two occasions, with the intent to

retaliate against R.S. while he was engaged in and on account of the performance

of his official duties as a United States Judge, in violation of Title 18, United States

Code, Section 115(a)(1)(B) and (b)(4).

KING further agrees that, from December 2018 through February 13, 2019, in

Miami-Dade County, in the Southern District of Florida, with intent that another

person engage in conduct constituting a felony that has as an element the use,

attempted use, or threatened use of physical force against the person of another in

violation of the laws of the United States, and under circumstances strongly

corroborative of that intent, did solicit, command, induce, or otherwise endeavor to

persuade such other person to engage in such conduct; that is, to murder Assistant

United States Attorney D.N. on account of the performance of her official duties,

in violation of Title 18, United States Code, Section 1114, and Title 18, United

States Code, Section 373(a).”

Id. at 1-3. On November 12, 2020, Movant was sentenced to 120 months of imprisonment on each

count, to run consecutive to one another. See Cr ECF No. [76]. On October 21, 2021, Movant filed

a Motion Under 28 U.S.C. § 2255 asserting factual innocence. See ECF No. [1]. He was later

granted leave to amend his motion, and on January 4, 2022, the instant Amended Motion was

docketed. See ECF No. [20]. Therein, Movant makes six claims: (1) that he is factually innocent;

(2) that his attorney was ineffective for failing to investigate one of the government’s witnesses;

(3) that his attorney was ineffective for failing to subpoena video footage from the jail where he

was housed and failing to hire handwriting and voice print analysis experts; (4) that his due process

rights were violated by the government for failing to disclose exculpatory evidence; (5) that his

attorney was ineffective for agreeing to a protective order of Jencks material and pressuring King

to plead guilty; and (6) that his attorney was ineffective for failing to file a notice of appeal. See

id.

II. LEGAL STANDARD

A. Section 2255 Motions

Under section 2255, “[a] prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution . . . may move the court which imposed the sentence to vacate, set

aside, or correct the sentence.” 28 U.S.C. § 2255(a) (alterations added). Because collateral review

is not a substitute for direct appeal, the grounds for collateral attack on final judgments under

section 2255 are extremely limited. See United States v. Frady, 456 U.S. 152, 165 (1982) A

prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the

Constitution or laws of the United States; (2) exceeded its jurisdiction; (3) exceeded the maximum

authorized by law; or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay

v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “[R]elief under 28 U.S.C. [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.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (cleaned up).

B. Actual Innocence

“To establish actual innocence, [movant] must demonstrate that, in light of all the evidence,

it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United

States, 523 U.S. 614, 623 (1998) (citation omitted). “[A]ctual innocence means factual innocence,

not mere legal insufficiency.” Id. (citation omitted).

C. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees criminal defendants

the right to assistance of counsel during criminal proceedings. See Strickland v. Washington, 466

U.S. 668, 684-85 (1984). When assessing counsel’s performance under Strickland, the Court

employs a strong presumption that counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth

Amendment does not guarantee the right to perfect counsel; it promises only the right to effective

assistance[.]” Burt v. Titlow, 571 U.S. 12, 20 (2013). “Where the highly deferential standards

mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential

form of review that asks only ‘whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)

(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also

Harrington, 562 U.S. at 104.

To establish deficient performance, the petitioner must show that, considering all

circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent

assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting

Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and

facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690-

91. The court’s review of counsel’s performance should focus on “not what is possible or ‘what is

prudent or appropriate, but only [on] what is constitutionally compelled.’” Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (footnote omitted; quoting Burger v. Kemp, 483 U.S.

776, 794 (1987)). Counsel is not ineffective for failing to raise non-meritorious issues, see

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required to present every

non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).

Regarding the prejudice component, “[t]he defendant 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. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. A court need not address both prongs of Strickland

if the defendant makes an insufficient showing on one of the prongs. See id. at 697; Brown v.

United States, 720 F.3d 1316, 1326 (11th Cir. 2013).

III. DISCUSSION

A. Timeliness

The parties agree the motion is timely. See ECF Nos. [20] at 11, [32] at 5. Having reviewed

the record in full, the Court confirms the same. The parties dispute the merits of Movant’s factual

innocence claims in Ground One, ineffective assistance of counsel (“IAC”) claims in Grounds

Two, Three, Five, and Six, and Respondent asserts that Ground Four is procedurally defaulted.

B. Ground One

While acknowledging that he “reluctantly pled guilty to Counts 1 and 3 of the indictment

at the erroneous advice of his attorney,” Movant claims that he is factually innocent. ECF No [20]

at 4. He asserts that government witness A.G. impersonated him in the phone calls, emails, and

handwritten letters at issue in the case. See id. However, Movant fails to mention one key piece of

evidence. According to the Factual Proffer:

“On February 13, 2019, U.C.E. #8543 surreptitiously video recorded a meeting

between him and KING at FDC. During the meeting, KING explicitly directs how

he wanted U.C.E. #8543 to murder each of the victims and informs U.C.E. #8543

that KING will pay him a sum of currency if the murders are carried out.”

See Cr-ECF No. [52] at 2-3. In its Response, Respondent provides a screenshot of Movant from

the video. See ECF No. [32] at 10. Movant did not reply, and at no point has he attempted to

explain away that he was caught on video ordering the murders from the FBI undercover employee.

Moreover, during the plea colloquy, the Court specifically asked Movant whether he had

the opportunity to view these audio and video recordings before deciding to plead guilty, and

Movant answered affirmatively. See Cr ECF No. [105] at 22. Courts apply a strong presumption

that statements made by a defendant during a change of plea colloquy are true. See United States

v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (“[W]hen a defendant makes statements under oath

at a plea colloquy, he bears a heavy burden to show his statements were false.”). Simply put,

Movant was caught on video committing the crimes charged and he admitted to the conduct before

the Court. Movant fails to meet the burden for “actual innocence.” See Bousley 523 U.S. at 623.

Accordingly, Ground One is denied.

C. IAC Ground Two

Movant claims that his attorney was ineffective for failing to investigate cooperating

government witness A.G. See ECF No. [10] at 5. He asserts that counsel failed to investigate his

claim that A.G. impersonated him and failed to ascertain A.G.’s extensive criminal history.

Movant’s claims are refuted by the record.

As for A.G.’s criminal history, Respondent counters that “[t]he government disclosed all

of the reports related to A.G., and readily disclosed that we did not call him as a witness in the

grand jury because of his federal crimes for fraud and impersonation.” See ECF No. [32] at 13.

The Court finds that Movant has failed to establish that counsel’s performance was deficient. See

Strickland, 466 U.S. at 687-88.

As for Movant’s claims that A.G. impersonated him, as discussed in the preceding section,

Movant was caught on video committing the crimes charged and he admitted to the conduct before

the Court. Movant fails to show that the result of the proceeding would have been different had

counsel investigated his baseless claims which were directly refuted by the video evidence. The

Court finds that Movant has also failed to establish prejudice. See id. at 694. Accordingly, Ground

Two is denied.

D. IAC Ground Three

Movant claims that counsel was ineffective for failing to subpoena video footage from the

jail which would show A.G., or someone paid off by A.G., making the calls. See ECF No. 20 at 7.

He further claims that counsel was ineffective for failing to hire handwriting and voice recognition

experts to refute that he made the phone calls and wrote the letters at issue in the case. See id.

Movant’s claims of IAC are refuted by the overwhelming evidence against him.

Regarding handwriting, the government had Movant’s estranged wife and others who

personally knew him to identify his handwriting. See ECF No. 32 at 9. Moreover, one of the letters

contained Movant’s fingerprint. See id. The government also had numerous witnesses to identify

Movant’s voice. See id. Movant admitted to all of this at his plea colloquy. However, most

importantly, Movant fails to address that he was caught on video committing the crimes charged.

The Court finds that even if counsel had hired the experts and subpoenaed the video footage, there

is no reasonable probability that the result of the proceeding would have been different given the

video evidence of Movant ordering the murders from the FBI undercover employee. See

Strickland, 466 U.S. at 694 (“[t]he defendant must show that there is a reasonable probability that,

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

Accordingly, Movant has failed to establish prejudice and Ground Three is denied. See id. at 697

(A court need not address both prongs of Strickland if the defendant makes an insufficient showing

on one of the prongs.).

D. IAC Ground Four

Movant claims that his due process rights were violated by Respondent’s failure to disclose

exculpatory evidence. See ECF No. [20] at 8. His claims focus entirely on A.G. He asserts that he

was denied information concerning A.G.’s criminal history, promises of a sentence reduction in

exchange for cooperation, and misconduct as a cooperating witness in an unrelated case. See id.

Respondent argues that this ground is procedurally defaulted as it was not raised on direct

appeal. See ECF No. [32] at 6-7. However, in Ground Six of this motion, Movant claims that he

told his counsel to file a notice of appeal and counsel failed to do so. The Court will reserve ruling

on Ground Four pending resolution of Ground Six.

E. IAC Ground Five

Movant argues that his attorney was ineffective for agreeing to a protective order of Jencks

material and pressuring King to plead guilty. See ECF No. 20-1 at 9-10. The Court again notes that

Movant and his attorney had the opportunity to review the video recording obtained by the FBI

undercover employee where Movant is not only heard, but also seen, detailing how he wants the

federal judge and federal prosecutor murdered. Movant fails to address this key piece of evidence

in his motion. Given the overwhelming evidence of guilt, Movant fails to establish prejudice. See

Strickland, 466 U.S. at 694 (“[t]he defendant must show that there is a reasonable probability that,

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

Accordingly, Ground Five is denied. See id. at 697 (A court need not address both prongs of

Strickland if the defendant makes an insufficient showing on one of the prongs.).

F. IAC Ground Six

Movant asserts that his attorney was ineffective for failing to file a notice of appeal after

Movant instructed him to do so. See ECF No. [20-1] at 10-11. The Court notes that an evidentiary

hearing might be necessary on this ground. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (“[A]

lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a

manner that is professionally unreasonable.”). However, Respondent did not address Ground Six

in its Response. The Court ORDERS that on or before November 10, 2022, Respondent shall file

a memorandum of fact and law addressing the merits of Ground Six and the issue of whether an

evidentiary hearing is warranted.

The Court further ORDERS that on or before November 10, 2022, Movant must submit

a declaration, signed under the penalty of perjury, containing specific facts about all

communications he had with counsel with respect to potentially filing a direct appeal. 2 These

2 Rule 2 of the Federal Rules Governing § 2255 Proceedings imposes “heightened pleading requirement[s]”

on § 2255 movants. Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011). Likewise, it is well established

that conclusory claims of ineffective assistance do not support a Strickland claim. See Boyd v. Comm’r,

Ala. Dep’t of Corr., 697 F.3d 1320, 1333-34 (11th Cir. 2012); see also Wilson v. United States, 962 F.2d

996, 998 (11th Cir. 1992) (per curiam); see also Pio v. United States, No. 13-23666-CIV, 2014 WL

4384314, at *3 (S.D. Fla. Sep. 3, 2014) (“Conclusory allegations of ineffective assistance of counsel are

insufficient to state a claim [under § 2255]”) (citing cases)). Likewise, a § 2255 Movant is not “entitled to

an evidentiary hearing when his claims are merely conclusory allegations unsupported by specifics.” Stano

v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) (en banc) (citation omitted); accord Tejada v. Dugger, 941

F.2d 1551, 1559 (11th Cir. 1991) (citation omitted).

facts must include but are not limited to: (1) when (specifically what date) and where he told his

counsel that he wanted to, or was interested in, appealing; (2) when (specifically what date) he

learned that there was no appeal filed; (3) what advice counsel provided in this regard; and (4)

what was Movant’s response to the advice.

It is further ORDERED that movant must include with his declaration any evidence that

supports his claim. Such evidence may include but is not limited to: (1) copies of relevant

correspondence (letters) with counsel; (2) certified copies of redacted prison phone and legal mail

logs; (3) a certified statement of his inmate account reflecting relevant correspondence with

counsel; and (4) evidence of all telephonic communications with counsel.3

Movant is expressly cautioned that failure to comply with this order will result in dismissal

of Ground Six as insufficiently plead.

G. Evidentiary Hearing

A district court is not required to hold an evidentiary hearing where the petitioner’s

allegations are affirmatively contradicted by the record, or the claims are patently frivolous. See

Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002). The Court finds the claims in Grounds

One, Two, Three, and Five to be patently frivolous and that the motion and the files and records

of the case conclusively show that Movant is not entitled to relief. See 28 U.S.C. § 2255(b).

Therefore, King’s request for an evidentiary hearing on these grounds is denied. The Court

reserves ruling on the issue of an evidentiary hearing on Grounds Four and Six.

3 Regarding the issues raised in this proceeding, the law is also well settled that, once a motion is filed

challenging counsel’s effectiveness, the attorney-client privilege is waived with regard to the challenged

conduct. See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1178-79 (11th Cir. 2001) (“[A] party waives its

attorney-client privilege when it injects into this litigation an issue that requires testimony from its attorneys

or testimony concerning the reasonableness of its attorneys’ conduct.” (citation omitted)). By alleging that

his attorney provided ineffective assistance of counsel, the movant put at issue--and thereby waived--any

privilege that might apply as to the claims raised in this proceeding.

Case No. 21-cv-23858-BLOOM

H. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his petition for writ of

habeas corpus has no absolute entitlement to appeal, and to do so, must obtain a certificate of

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

Movant fails to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Accordingly, upon consideration of the record, the Court denies the issuance of a

certificate of appealability on Grounds One, Two, Three, and Five.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Grounds One, Two, Three, and Five of the Motion, ECF No. [20], are DENIED.

On these grounds, the request for an evidentiary hearing is DENIED and no

certificate of appealability shall issue.

2. The Court reserves ruling on Grounds Four and Six.

3. On Ground Six, on or before November 10, 2022, Respondent is ORDERED to

file a memorandum of fact and law addressing the merits and the issue of whether

an evidentiary hearing is warranted; and Movant is ORDERED to file the

supplemental declaration and documents described above.

DONE AND ORDERED in Chambers at f 1 a, on October 11, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Matthew Alexander King

17576-104

Marion-USP

United States Penitentiary

12

Inmate Mail/Parcels

Post Office Box 1000

Marion, IL 62959

PRO SE