Williamson, Jarmal v. United States

United States District Court

for the

Southern District of Florida

Jarmal Williamson, )

Movant )

)

Civil Action No. 24-20140-Scola

v. )

Crim. Action No. 19-20144-Scola

)

United States of America,

Respondent.

Order

Before the Court is Movant Jarmal Willamson’s motion to vacate

sentence under 28 U.S.C. § 2255 (ECF No. 1)1 docketed on January 11, 2024.

The Court has considered the motion, Movant’s memorandum of law (ECF No.

1-1), the Government’s response (ECF No. 5), the entire record, and is

otherwise fully advised. For the reasons explained below, the motion is denied.

1. Background

Movant was charged by superseding indictment with possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 1);

possession with intent to distribute fentanyl, in violation of 21 U.S.C. §

841(a)(1) (Count 2); and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1). (See Superseding

Indictment CR ECF No. 21 at 1–3). Movant proceeded to trial where, on August

14, 2019, a jury found Movant guilty of Count 1 and acquitted him of Counts 2

and 3. (See Verdict CR ECF No. 66).

During Movant’s sentencing hearing, the Court found that Movant “ha[d]

at least three prior convictions for [a] serious drug offense committed on

different occasions as set forth in cases F17-15853, F17-22014A, and F18-

9759[.]” (Sentencing Tr. CR ECF No. 94 at 4; see also Presentence Investigation

Report (“PSI”) CR ECF No. 79 ¶ 25). Based on these predicate convictions, the

1 Citations to (ECF) refer to docket entries in case number 24-20140-CIV-Scola, and

citations to (CR ECF) refer to docket entries in criminal case number 19-20144-CR-

Scola.

Court concluded that Movant qualified to be sentenced as an armed career

criminal under 18 U.S.C. § 924(e) and was subject to a fifteen-year mandatory

minimum sentence. (See at 3–4). The Court adjudicated Movant guilty of Count

1 and sentenced him to 188 months. (See Judgment CR ECF No. 85 at 1–2).

Movant appealed his conviction and sentence to the Eleventh Circuit.

Movant raised three issues on appeal: (1) the Court erred in overruling

Movant’s Batson v. Kentucky, 476 U.S. 79 (1986) challenge during jury

selection; (2) the Court violated Fed. R. Evid. 403 “by precluding [Movant] from

cross-examining the Government’s ‘street slang’ expert regarding his

interpretation of the jail call without opening the door to highly prejudicial

evidence”; and (3) the Armed Career Criminal Act’s (“ACCA”) fifteen-year

mandatory minimum violated the Eighth Amendment as applied to Movant, “a

young, non-violent offender with under one year of prison time.” United States

v. Williamson, 2022 WL 68623, at *1 (11th Cir. Jan. 7, 2022), cert. denied, 143

S. Ct. 625 (2023). The Eleventh Circuit rejected all of Movant’s arguments and

affirmed the conviction. See id. at *8. Movant filed a petition for writ of

certiorari in the U.S. Supreme Court, but the Court denied the petition on

January 9, 2023. See Williamson, 143 S. Ct. at 625.

Movant filed the instant Motion on January 5, 2024. (See Mot. at 13).2

The Government concedes that the Motion is timely. (See Resp. at 4).

2. Legal Standard

A. Section 2255 Motions

Under § 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 §

2 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on

the date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d

1287, 1290 n.2 (11th Cir. 2009) (citations omitted).

2255 are extremely limited. See United States v. Frady, 456 U.S. 152, 165

(1982). A prisoner is entitled to relief under § 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. §

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.

See Strickland, 466 U.S. at 687–88.

To establish deficient performance, the movant 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. 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) (cleaned up).

To establish prejudice, the 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. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. If a movant pleads guilty, prejudice cannot be shown unless

“there is a reasonable probability that, but for counsel’s errors, [the movant]

would not have pleaded guilty and would have insisted on going to trial.” Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

A court need not address both prongs of Strickland if the defendant

makes an insufficient showing on one of the prongs. See 466 U.S. at 697;

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

3. Discussion

A. Exhaustion and Procedural Default

Movant raises two grounds for relief in his motion to vacate. See Mot. at

4–6. The Government suggests that the Court need not reach the merits of

either since Movant failed to raise these issues on direct appeal. See Resp. at 5,

11. “Under the procedural default rule, ‘a defendant generally must advance an

available challenge to a criminal conviction or sentence on direct appeal or else

the defendant is barred from presenting that claim in a § 2255 proceeding.’”

McKay, 657 F.3d at 1196 (quoting Lynn v. United States, 365 F.3d 1225, 1234

(11th Cir. 2004)). A procedural default will only be excused if: (1) there is

“cause for not raising the claim of error on direct appeal and actual prejudice

from the alleged error” or (2) the movant “is actually innocent . . . of the crime

of conviction.” Id. (internal quotation marks omitted).

Movant concedes that he did not raise the substance of Grounds One

and Two on direct appeal. See Mot. at 4, 6. However, he appears to allege that

the Court should excuse this default because counsel was ineffective for failing

to raise these issues. See Memo. at 11–12. Ineffective assistance of counsel can

constitute “cause” to excuse a procedural default, but only if counsel’s failure

to raise the issue on direct appeal meets the Strickland standard for

ineffectiveness. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Guyton v.

United States, 447 F. App’x 136, 140 (11th Cir. 2011). However, as the

Government points out, counsel would have been ineffective only if Movant’s

underlying claims have merit. See Resp. at 14–15 (quoting Denson v. United

States, 804 F.3d 1339, 1342 (11th Cir. 2015)).3 Under these circumstances,

and in the interest of judicial economy, the Court will simply “skip over” the

procedural default issue and adjudicate the Motion solely on its merits. See

Dallas v. Warden, 964 F.3d 1285, 1298 (11th Cir. 2020).

B. Ground One

In Ground One, Movant alleges that his prior state-court convictions

“cannot serve as ACCA predicate[s]” because Florida’s drug schedules

regarding cocaine and heroine are “more in depth than the federal definition

making the Florida statute overbroad.” Mot. at 4. In his Memorandum of Law,

Movant cites the Eleventh Circuit’s decision in Chamu v. United States Attorney

General, 23 F.4th 1325 (11th Cir. 2022) as proof that Florida’s drug possession

statutes “governs isomers not punish[ed] under [the] federal definition.” Memo.

at 5. The Government responds that Movant “has not put forth any evidence to

prove that there is a cocaine stereoisomer that falls outside of the federal

definition of a serious drug offense.” Resp. at 10. The Court agrees.

The ACCA “mandates a fifteen-year minimum sentence” for any

defendant who violates 18 U.S.C. § 922(g) and who has previously been

convicted of at least three “violent felonies” or “serious drug offenses.” United

States v. Jackson, 55 F.4th 846, 849 (11th Cir. 2022). In determining whether

3 The Government contends that Movant is attempting to bring a free-standing claim

of ineffective-assistance-of-counsel rather than using it as “cause” for Movant’s

procedural default. See Resp. at 13–15. Although the Court disagrees, this issue is

irrelevant since counsel would not be ineffective for failing to make the same meritless

arguments Movant raises in the instant Motion. See Denson, 804 F.3d at 1342.

a state conviction qualifies as a “serious drug offense,” the court looks to “the

statutory definition of the state offense at issue” to determine if it is

“categorically broader” than ACCA’s definition of a “serious drug offense”—i.e.,

“if there is conduct that would violate the state law but fall out-side of ACCA’s

‘serious drug offense’ definition, the state law cannot serve as a predicate

offense[.]” Id. at 850. ACCA’s definition of a “serious drug offense” incorporates

“the version of the federal controlled-substances schedules in effect when the

defendant was convicted of the prior state drug offense.” Id. at 854.

The Court found that Movant had been convicted of violating Florida

Statute § 893.13(1) on three separate occasions: (1) possession with intent to

sell cocaine and possession with intent to sell heroin on August 9, 2017, in

Case No. F17-15853; (2) possession with intent to sell cocaine on November 17,

2017, in Case No. F17-22014; and (3) possession with intent to sell cocaine on

May 11, 2018, in Case No. F18-9759. (See PSI CR ECF No. 79 ¶¶ 31–33). The

Eleventh Circuit has held that Fla. Stat. § 893.13(1) should be considered

“serious drug offense” so long as it did not criminalize more conduct than

ACCA did at the time of the defendant’s state-court convictions. See Jackson,

55 F.4th at 861. Movant fails to show that Fla. Stat. § 893.13(1) was overbroad

at the time of his convictions.

First, Movant’s conclusory allegation that Fla. Stat. § 893.13 defined

heroin more broadly than federal law is simply wrong. See Mot. at 4. On

August 9, 2017, the day Movant possessed heroin with the intent to sell it,

both Florida and federal law forbid the sale of heroin and did not define it

differently. Compare Fla. Stat. § 893.03(1)(b)(11) (2017), with 21 U.S.C. § 812,

Schedule I(b)(10) (2017). Since there is “no mismatch between the Florida and

federal definitions” of heroin, Movant’s conviction for possessing heroin with

intent to sell was properly considered a “serious drug offense.” United States v.

Laines, 69 F.4th 1221, 1236 (11th Cir. 2023).

Second, Movant fails to show that Fla. Stat. § 893.13 covers an existing

cocaine compound that is outside the scope of the federal drug schedules.

Movant is correct that the Florida’s definition of cocaine differs from the federal

definition. See Memo. at 5–6. Florida law “defines ‘cocaine’ as ‘[c]ocaine or

ecgonine, including any of their stereoisomers, and any salt, compound,

derivative, or preparation of cocaine or ecgonine’ . . . [whereas] federal law

controls ‘cocaine, its salts, optical and geometric isomers, and salts of

isomers.’” Laines, 69 F.4th at 1236 (first quoting Fla. Stat. § 893.03(2)(a)(4);

and then quoting 21 U.S.C. § 812, Schedule II(a)(4)).4 Put another way, Florida

law prohibits the possession of all stereoisomers of cocaine, whereas federal

law only regulates optical and geometric isomers—which is not exclusive of

every possible stereoisomer. See id. (citing United States v. Phifer, 909 F.3d

372, 377 n.5 (11th Cir. 2018)). Movant argues that this difference means that

Fla. Stat. § 893.13(1), at least in terms of cocaine, is categorically overbroad

when compared to federal law. See Memo. at 6.

Movant says that his position is consistent with the Eleventh Circuit’s

holding in Chamu. See Memo. at 4. But Chamu stands for the opposite. The

appellant in Chamu, just like Movant, claimed that Fla. Stat. § 893.13 “defines

cocaine too broadly” because it covers “a subcategory of cocaine isomers” the

federal statute does not—specifically “nongeometric diastereomers.” 23 F.4th at

1329–31. The Eleventh Circuit held that, even though Florida’s definition of

cocaine is hypothetically “broader than the federal definition,” the Florida

statute does encompass additional controlled substances because there is no

evidence that cocaine has a nongeometric diastereomer. See id. at 1331–32; see

also Laines, 69 F.4th at 1234 (“Chamu failed to establish that cocaine has

stereoisomers other than those covered by federal law. Indeed, we stated that

we ‘seriously doubted’ that ‘Chamu’s assertions had any scientific basis.’”)

(internal citation omitted) (quoting Chamu, 23 F.4th at 1331–32). Movant

merely repeats the same (unsuccessful) arguments from Chamu and Laines

and fails to prove that there is an stereoisomer of cocaine that exists which is

criminalized under Florida law but is legal under federal law. See Memo. at 4–

4 These definitions are the same now as they were when Movant’s offenses occurred.

6; see also Chamu, 23 F.4th at 1330 (“The federal statute indeed omits a

subcategory of cocaine isomers that the state statute does not. But that

omission is meaningless if the subcategory is a null set—if so, the state statute

covers exactly the same substances as the federal.”).5

Accordingly, the Court denies Ground One as meritless.

C. Ground Two

In Ground Two, Movant argues that his arrest violated the Fourth

Amendment “because there was no probable cause for an arrest.” Mot. at 5.

Movant alleges that Officer Pinckney’s belief that he had seen Movant conduct

a hand-to-hand drug transaction was not sufficient probable cause to “seize”

Movant by approaching him with a drawn weapon. See Memo. at 7–8. The

Government responds that Officer Pinckney was merely showing his authority

to conduct a temporary seizure, and that an arrest did not occur until after

Movant was apprehended after a brief chase. See Resp. at 12–13.

Movant’s argument is based on the mistaken premise that he was

arrested or seized the moment Officer Pinckney approached him. The record is

clear that “Officer Pinckney observed Defendant engage in what appeared to

him to be a hand-to-hand drug transaction with an occupant of another

vehicle. When the Officer stopped and exited his car to intervene in the

transaction, Williamson tried to run away.” United States v. Williamson, 2019

WL 4418608, at *1 (S.D. Fla. July 11, 2019) (Torres, Mag. J.). Officer Pinckney

had the authority to approach Movant and conduct an investigatory stop based

on his “reasonable suspicion” that Movant had just participated in a drug

transaction; “probable cause” was not required. See United States v. Lopez-

Garcia, 565 F.3d 1306, 1313–14 (11th Cir. 2009); United States v. Tiller, 2023

5 Between September 11, 2015, and July 1, 2017, a Fla. Stat. § 893.13 conviction for

possession with intent to sell cocaine may not have been a serious drug offense

because a substance known as “ioflupane” was a controlled substance under Florida

law but not under federal law. See Jackson, 55 F.4th at 851; see also Leonard v.

United States, 2023 WL 2456042, at *5 (S.D. Fla. Mar. 10, 2023) (Ruiz, J.) (describing

history of ioflupane as a controlled substance). However, since all of Movant’s relevant

drug offenses took place after July 1, 2017, Fla. Stat. § 893.13 is not categorically

overbroad as applied to him. See Jackson, 55 F.4th at 861.

WL 9002866, at *5 (11th Cir. Dec. 28, 2023). That reasonable suspicion

became probable cause once Movant fled and Officer Pinckney observed

Movant discard what appeared to be a firearm and narcotics. See United States

v. Smith, 481 F. App’x 540, 543–44 (11th Cir. 2012)

The fact Officer Pinckney drew his gun to effectuate the investigatory

stop did not transform the encounter into an arrest. The Eleventh Circuit has

repeatedly held that “an officer’s display of weapons does not necessarily

convert an investigatory stop into an arrest.” United States v. Roper, 702 F.2d

984, 987 (11th Cir. 1983); see also Courson v. McMillian, 939 F.2d 1479, 1496

(11th Cir. 1991) (“In the middle of the night, it is not unusual for a law

enforcement officer to have his weapon drawn, when approaching individuals

suspected of drug involvement.”). Moreover, Movant’s decision to immediately

flee after Officer Pinckney’s “show of authority” meant that he was not “seized”

for Fourth Amendment purposes when Officer Pinckney first approached

Movant with a drawn firearm. See California v. Hodari D., 499 U.S. 621, 626

(1991) (“The narrow question before us is whether, with respect to a show of

authority as with respect to application of physical force, a seizure occurs even

though the subject does not yield. We hold that it does not.”); United States v.

Dolomon, 569 F. App’x 889, 893 (11th Cir. 2014) (“Nor did Dolomon actually

submit to the officers’ show of authority at the traffic light; instead, he fled. The

attempted seizure at the traffic stop was only an attempted seizure. . . . And

because he discarded the firearm before he was actually seized, thereby

abandoning it, the firearm was not suppressible as the fruit of an

unconstitutional seizure.”).

Officer Pinckney did not need probable cause to approach Movant with a

drawn weapon because he reasonably suspected that Movant had just

completed a drug transaction. By the time Movant was actually arrested,

Officer Pinckney had developed probable cause from Movant’s flight and his

behavior during the chase. For the foregoing reasons, the Court denies Ground

Two.

4. 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 the Movant’s claims to be meritless. See 28 U.S.C. §

2255(b). Therefore, any request for an evidentiary hearing is denied.

5. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying her

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, the Movant 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.

6. Conclusion

Accordingly, it is ordered and adjudged as follows:

1. Movant Jarmal Williamson’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

Movant 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 March 29, 2024.

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Jarmal Williamson

18055-104

Coleman Medium

Federal Correctional Institution

Inmate Mail/Parcels

Post Office Box 1032

Coleman, FL 33521

PRO SE