Perez v. United States

United States District Court

for the

Southern District of Florida

Carlos Miguel Perez, )

Movant )

)

Civil Action No. 22-21909-Scola

v. )

Crim. Action No. 18-20359-Scola

)

United States of America,

Respondent.

Order

Before the Court is Movant Carlos Miguel Perez’s motion to vacate

sentence under 28 U.S.C. § 2255 (ECF No. 1) docketed on June 15, 2022. The

Court has considered the motion, the government’s response (ECF No. 14), the

entire record, and is otherwise fully advised. For the reasons explained below,

the motion is denied.

1. Background

On July 24, 2018, a jury found Perez guilty as charged in the indictment

on charges of conspiracy and possession with intent to distribute a controlled

substance, possession of a firearm in furtherance of a drug-trafficking crime,

maintaining drug-involved premises, and being a felon in possession of a

firearm. (See CR ECF No. 41).1

At the sentencing hearing, neither side had any objections to the

calculation of the guidelines by probation in the presentence investigation

report. (See CR ECF No. 73 at 5:20–24).2 Therefore, the Court determined that

Perez was a career offender with an advisory guideline range of 360 months to

life imprisonment. (See id. at 6:2–13). In deciding a sentence that would be

sufficient but not greater than necessary to achieve the goals of the sentencing

scheme, the Court considered “what [Perez’s] sentence would have been if he

1 References to docket entries in Perez’s criminal case, Case No. 18-20359-CR-Scola, are

denoted with “CR ECF No.”

2 The Court uses the pagination generated by the electronic CM/ECF database, which appears

in the headers of all court filings.

didn’t qualify as a career offender.” (Id. at 17:11–12). Taking this into account,

the Court sentenced Perez to 180 months of imprisonment. (See id. at 17:20–

22).

Perez appealed, and the Eleventh Circuit affirmed his convictions and

sentence. See United States v. Perez, 772 F. App'x 791, 795 (11th Cir.), cert.

granted, judgment vacated, 205 L. Ed. 2d 211, 140 S. Ct. 397 (2019). The

Supreme Court thereafter granted Perez’s petition for a writ of certiorari, see

Perez v. United States, 140 S. Ct. 397 (2019), and the case was remanded to

the Eleventh Circuit for further consideration in light of Rehaif v. United States,

139 S. Ct. 2191 (2019). On remand, the Eleventh Circuit again affirmed Perez’s

convictions and sentence. See United States v. Perez, 815 F. App'x 410, 413

(11th Cir. 2020).

2. 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). 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. 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).

To prevail on a claim of ineffective assistance of counsel, a movant must

demonstrate both (1) that counsel’s performance was deficient, and (2) a

reasonable probability that the deficient performance prejudiced the defense.

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

To establish deficient performance, the petitioner must show that

“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. 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) (cleaned up).

To establish prejudice, “[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).

3. Discussion

A. Timeliness

Perez asserts that his motion was timely filed. (See ECF No. 1 at 12). The

Respondent fails to address timeliness. (See generally ECF No. 14). The Court

therefore finds any arguments against timeliness waived and concludes that

the motion was timely filed.

B. Procedural Bars

The Respondent asserts that Perez’s claims are procedurally barred. (See

ECF No. 14 at 9). The Court opts to skip over this step as the motion is due to

be denied on the merits. See Loggins v. Thomas, 654 F.3d 1204, 1215 (11th

Cir. 2011) (“When relief is due to be denied even if claims are not procedurally

barred, we can skip over the procedural bar issues, and we have done so in the

past.”).

C. The Merits

Ground One

Perez asserts ineffective assistance of counsel in Ground One and makes

four subclaims in support.

i. Subclaim One

Perez asserts that “trial counsel failed to pursue insufficiencies in the

indictment and jury instructions forfeiting de novo review on appeal.” (ECF No.

1 at 4). The Respondent “agrees that that the indictment did not allege that

Perez had knowledge of his status [as a convicted felon]. Nonetheless, this

failure does not constitute a jurisdictional defect.” (ECF No. 14 at 9).

On remand from the Supreme Court, the Eleventh Circuit rejected

Perez’s argument that “omission in the indictment of the knowledge element

requirement was a jurisdictional defect.” Perez, 815 Fed. Appx. at 413 (citing

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

indictment at issue, the indictment in Moore failed to allege that the defendant

knew he was a convicted felon. Id. at 1335-36. Nevertheless, the court affirmed

Moore’s conviction and sentence, stating that:

Ultimately, the law is clear: the omission of an element in

an indictment does not deprive the district court of subject

matter jurisdiction. A defective indictment only affects

jurisdiction when it fails to allege an offense against the

United States. So long as the conduct described in the

indictment is a criminal offense, the mere omission of an

element does not vitiate jurisdiction.

Id. at 1336. Thus, because the issue is without merit, counsel cannot render

deficient performance by failing to raise it. See Chandler v. Moore, 240 F.3d

907, 917 (11th Cir. 2001) (“[C]ounsel was not ineffective for failing to raise a

nonmeritorious issue.”).

The same is true of counsel’s alleged failure to pursue insufficiencies in

the jury instructions. Although the jury was not instructed on the knowledge

element, the Eleventh Circuit concluded that “there was more than enough

evidence adduced at trial to establish that Perez knew he was felon—an

element the Supreme Court has acknowledged is not burdensome to prove.”

Perez, 815 Fed. Appx. at 413. Accordingly, Subclaim One is denied under the

performance prong of Strickland, 466 U.S. at 687–88.

ii. Subclaim Two

Perez asserts that “trial counsel failed to object to the erroneous career

offender designation at sentencing forfeiting de novo review on appeal.” (ECF

No. 1 at 4). This claim is without merit as Perez was correctly designated a

career offender. Perez’s career offender status was affirmed on direct appeal.

See Perez, 815 Fed. Appx. at 413 (“[Perez] was a career offender who had five

prior felony convictions, all of which occurred before he possessed the firearm

in this case.”). Thus, because the issue is without merit, counsel cannot render

deficient performance by failing to raise it. See Chandler, 240 F.3d at 917.

Accordingly, Subclaim Two is denied under the performance prong of

Strickland, 466 U.S. at 687–88.

iii. Subclaim Three

Perez asserts that “trial and appellate counsel failed to challenge the

constructive amendment of [his] indictment.” (ECF No. 1 at 4). This claim is a

reiteration of Subclaim One. On this point, the Eleventh Circuit rejected Perez’s

argument and concluded that sufficient evidence was adduced at trial to

establish that he knew he was a felon. See Perez, 815 Fed. Appx. at 413 (“In

view of his conduct during his arrest and his extensive criminal record, we have

little doubt, if any, that Perez knew that he had been convicted of at least one

felony offense before he possessed the firearm in this case.”). Thus, because the

issue is without merit, counsel cannot render deficient performance by failing

to raise it. See Chandler, 240 F.3d at 917. Accordingly, Subclaim Three is

denied under the performance prong of Strickland, 466 U.S. at 687–88.

iv. Subclaim Four

Perez asserts that “appellate counsel failed to allege Rehaif error in [his]

original appeal despite its availability.” (ECF No. 1 at 4). This claim is meritless

because the Eleventh Circuit considered his Rehaif arguments. See Perez, 815

F. App’x at 412 n. 1 (“[T]he Supreme Court granted certiorari in Rehaif a full

two weeks before Perez filed his initial brief. As for the government's argument

that Perez abandoned these claims on remand, we need not resolve this issue

because even when we review them under plain error review, they fail.”). In

other words, Perez was not prejudiced because the Eleventh Circuit considered

his Rehaif arguments on direct appeal. Accordingly, Subclaim Four is denied

under the prejudice prong of Strickland, 466 U.S. at 687–88.

Ground Two

Perez asserts a “Fifth Amendment Due Process Violation” because “the

indictment was constructively amended by the government.” (ECF No. 1 at 5).

As discussed, the Eleventh Circuit rejected Perez’s argument and concluded

that sufficient evidence was adduced at trial to establish that he knew he was a

felon. See Perez, 815 Fed. App’x. at 413. Accordingly, Ground Two is denied.

D. Evidentiary Hearing

A district court is not required to hold an evidentiary hearing where a

movant'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 Perez’s claims to be patently frivolous and that the

motion and the files and records of the case conclusively show that he is not

entitled to relief. See 28 U.S.C. § 2255(b). Therefore, his request for an

evidentiary hearing is denied.

E. 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, Perez fails to make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Therefore, upon consideration of the record, the Court denies the

issuance of a certificate of appealability.

4. Conclusion

Accordingly, it is ordered and adjudged as follows:

1. Movant Carlos Miguel Perez’s motion to vacate sentence under 28

U.S.C. § 2255 (ECF No. 1) is denied.

2. Acertificate of appealability is denied. Because there are no issues

with arguable merit, an appeal would not be taken in good faith, and

Perez is not entitled to appeal in forma pauperis.

3. To the extent not otherwise disposed of, any pending motions are

denied as moot and all deadlines are terminated.

4. The Clerk of Court is directed to close this case.

Done and ordered, in chambers, in Miami, Florida, on April 4, 2023.

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Carlos Miguel Perez

18674-104

Allenwood-USP

United States Penitentiary

Inmate Mail/Parcels

Post Office Box 3000

White Deer, PA 17887

PRO SE