Fisher v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DION FISHER,

v. Case No. 8:18-cr-236-VMC-TGW

8:23-cv-652-VMC-TGW

UNITED STATES OF AMERICA.

______________________________/

ORDER

This matter is before the Court on Dion Fisher’s pro se

28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct

Sentence. (Civ. Doc. # 1; Crim. Doc. # 281). The United States

of America responded on August 11, 2023. (Civ. Doc. # 12).

Mr. Fisher filed a reply on March 10, 2024. (Civ. Doc. # 17).

The Motion is denied in part and deferred in part to the

extent explained below.

I. Background

A grand jury indicted Mr. Fisher on 15 counts, charging

him with conspiring to manufacture, possess with intent to

distribute, and distribute 400 grams or more of fentanyl, in

violation of 21 U.S.C. § 846 (Count 1); possessing with intent

to distribute and distributing fentanyl, in violation of 21

U.S.C. § 841(a)(1) (Counts 2-4); possessing with intent to

distribute 40 grams or more of fentanyl, in violation of 21

U.S.C. § 841(a)(1) (Count 5); possessing with intent to

distribute 400 grams or more of fentanyl, in violation of 21

U.S.C. § 841(a)(1) (Count 6); possessing with intent to

distribute pentylone, in violation of 21 U.S.C. § 841(a)(1)

(Count 7); and engaging in illegal monetary transactions, in

violation of 18 U.S.C. §§ 1957 and 2 (Counts 9–16). (Crim.

Doc. # 1).

During the relevant periods of trial preparation and

trial, Mr. Fisher was represented by Kenneth Martin. Mr.

Martin filed a motion to suppress on Mr. Fisher’s behalf,

seeking to suppress items seized from his house and person.

(Crim. Doc. # 111). While Mr. Fisher conceded that there was

a search warrant for his residence, he contended that the

evidence obtained pursuant to the search warrant should

nevertheless be suppressed because he was not detained in the

immediate vicinity of the premises and the length of his

detention during the search was unreasonable. (Id.). Indeed,

when the search warrant was served, Mr. Fisher was not inside

his residence. Rather, he was in an Uber, which police pulled

over in order to detain Mr. Fisher. Mr. Fisher was then held

in the back of a police car for hours while his residence was

searched. (Id. at 1-2).

The Magistrate Judge held a hearing on the motion to

suppress on April 15, 2019. (Crim. Doc. # 138). The Magistrate

Judge issued a Report and Recommendation, recommending that

the motion to suppress be denied because “law enforcement

legally seized the property from [Mr. Fisher’s] residence

pursuant to a valid search warrant” and, “regardless of

whether [Mr. Fisher] was detained in the immediate vicinity

of his residence during the search, law enforcement had

probable cause to arrest [Mr. Fisher] even before [the deputy]

stopped him that day.” (Crim. Doc. # 152 at 18). Mr. Fisher

failed to file an Objection to the Report and Recommendation.

The Court adopted the Report and Recommendation and denied

the motion to suppress on May 21, 2019. (Crim. Doc. # 172).

Using court funding, Counsel for Mr. Fisher had hired a

chemistry expert, Janine Arvizu, to review the reports and

testing methods of the DEA and Pinellas County laboratories

used by the government to test the drugs Mr. Fisher possessed.

(Crim. Doc. # 162 at 1; Crim. Doc. # 283 at 3-5). At an ex

parte hearing before the Magistrate Judge in early May 2019,

counsel for Mr. Fisher requested approval for additional

funding to bring Arvizu from New Mexico, where she lives, to

Tampa for a Daubert hearing and trial. (Crim. Doc. # 283 at

3). However, because of the death of Arvizu’s husband and a

broken arm, Arvizu had not provided further proffers or a

supplemental report to defense counsel. (Id. at 3).

Ultimately, the Magistrate Judge denied Mr. Fisher’s request

for additional funding to bring the expert to a Daubert

hearing and trial:

Well, I don’t think this is close. I mean, the

amount of money you are asking for to bring somebody

from New Mexico just doesn’t seem reasonable to me,

so I’m gonna deny the motion. I’ll note that —

because you have already gotten some approval from

the Court of Appeals and she’s given a report, so

it seems to me you can use what’s in that report

and what she’s told you to cross-examine the

Government experts when they go to introduce their

tests. But, otherwise, I’m gonna deny the motion.

(Id. at 9). Because counsel was unable to obtain additional

funding for the chemistry expert to testify at a Daubert

hearing or trial, the scheduled Daubert hearing to address

the admissibility of the chemistry expert was cancelled.

(Crim. Doc. ## 159, 162, 163).

The case then proceeded to a seven-day jury trial

beginning in late May 2019. During trial, Mr. Fisher’s co-

defendant, Samuel Blaine Huffman, and some of his co-

conspirators testified against him. (Crim. Doc. ## 186, 188,

191, 193, 194). No chemistry expert testified on Mr. Fisher’s

behalf. Three other witnesses are also relevant here:

Detective Karl Gwynne, Diane Knott, and Roman Hernandez.

(Crim. Doc. # 193; Crim. Doc. # 194).

Gwynne had been inadvertently left off the government’s

witness list at trial, so Mr. Fisher’s counsel objected to

Gwynne’s testifying. (Crim. Doc. # 268 at 84-97). Because

Gwynne would be testifying only as an evidence custodian and

Mr. Fisher could not articulate any prejudice he would suffer

from the admission of Gwynne’s testimony, the Court overruled

Mr. Fisher’s objection. (Id. at 96). After the ruling, the

Court took a recess of almost an hour, which gave Mr. Fisher’s

counsel some time to prepare. Thereafter, Gwynne testified as

an evidence custodian for the non-drug evidence seized from

Mr. Fisher’s home, including receipts and records pertaining

to jewelry, cars, wire transfers, and bank accounts. (Id. at

108-182).

Diane Knott and Roman Hernandez also testified at the

trial. (Crim. Doc. # 272 at 110-187). Knott is a former IRS-

CI agent and supervisor who was employed as a financial

analyst with the U.S. Attorney’s Office at the time of trial.

She testified about her review of Mr. Fisher’s financial

records and the financial transactions underlying the money

laundering counts (Counts Nine-Sixteen). (Id. at 130-188).

Hernandez is an IRS employee who testified that he found no

tax records filed with the IRS for Mr. Fisher or Mr. Fisher’s

various companies. (Id. at 110-117). Counsel did not object

to the testimony of either Knott or Hernandez.

The jury ultimately found Mr. Fisher guilty of Counts

One-Six and Counts Nine-Sixteen. (Crim. Doc. # 200). He was

found not guilty of Count Seven, the charge of possession

with intent to distribute a mixture or substance containing

a detectable amount of pentylone. (Id. at 5).

For the sentencing and appellate phases, Mr. Fisher was

represented by Matthew Farmer. In advance of sentencing,

counsel submitted multiple objections to the presentence

report, including to the two-level aggravating role

enhancement for being an organizer or manager. (Crim. Doc. #

244 at 26-27). Counsel also filed a sentencing memorandum on

Mr. Fisher’s behalf, arguing that a guidelines sentence of

life imprisonment would be excessive. (Crim. Doc. # 248).

Although the co-defendant and three co-conspirators had all

pled guilty and all cooperated with the government in its

case against Mr. Fisher, counsel wrote that “a life sentence

for Mr. Fisher, even reflecting an aggravating role

adjustment, would constitute an unwarranted sentencing

disparity.” (Id. at 3). A life sentence for Mr. Fisher “would

effectively [be] four times more severe” than the most-

heavily punished co-conspirator, Mr. Morose, received (120

months’ imprisonment). (Id.).

During sentencing, counsel argued again that Mr. Fisher

should receive a lower sentence than life. (Crim. Doc. # 270).

He objected to the aggravating role enhancement, insisting

that Mr. Fisher was not more culpable than his co-defendant

and co-conspirators. (Id. at 12-13). The Court overruled this

objection. (Id. at 16). Counsel also emphasized the disparity

that would exist between Mr. Fisher and his co-defendant and

co-conspirators (the highest sentence for which was 120

months) if Mr. Fisher were given a 30- or 40-year sentence.

(Id. at 28-29). Counsel requested a sentence of 120 months’

imprisonment. (Id. at 29). The Court ultimately sentenced Mr.

Fisher to a below guidelines sentence of 360 months’

imprisonment on October 31, 2019. (Crim. Doc. # 250).

Mr. Fisher appealed. (Crim. Doc. # 252). On appeal,

counsel argued that Mr. Fisher’s motion to suppress should

have been granted and Gwynne should not have been allowed to

testify. (Crim. Doc. # 278); see also United States v. Fisher,

No. 19-14423, 2021 WL 6101255 (11th Cir. Dec. 21, 2021). The

Eleventh Circuit Court of Appeals affirmed Mr. Fisher’s

conviction and sentence. (Id.). Mr. Fisher’s petition for

writ of certiorari was denied on April 25, 2022. (Crim. Doc.

# 280).

Now, Mr. Fisher seeks to vacate his conviction and

sentence, raising numerous grounds of ineffective assistance

of both trial and sentencing/appellate counsel. (Civ. Doc. #

1; Crim. Doc. # 281). He has filed his sworn declaration in

support of his Motion. (Civ. Doc. # 1-1). The United States

has responded (Civ. Doc. # 12), along with the affidavits

from Mr. Martin and Mr. Farmer. (Civ. Doc. # 12-1; Civ. Doc.

# 12-3). Mr. Fisher has replied. (Civ. Doc. # 17). The Motion

is ripe for review.

II. Discussion

Mr. Fisher raises eleven grounds for relief in his 2255

Motion itself, as well as three construed grounds for relief

in his declaration.1 All grounds raise claims of ineffective

assistance of either trial or appellate counsel. (Civ. Doc.

# 1). These claims have been timely raised and are cognizable.

(Civ. Doc. # 12 at 5-6). Mr. Fisher bears the burden of proof

and persuasion on every aspect of his claims. Beeman v. United

1 Mr. Fisher numbered his arguments to include two Ground

Fours and two Ground Sevens. For ease of reference, the

arguments will be referred to as the first and second of each

respective ground.

States, 871 F.3d 1215, 1223-24 (11th Cir. 2017); Rivers v.

United States, 777 F.3d 1304, 1316 (11th Cir. 2015).

To prevail on a claim of ineffective assistance of

counsel, a petitioner must show that (1) his counsel’s

performance was deficient, and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). To establish deficient performance, Mr.

Fisher must demonstrate by a preponderance of the evidence

“that particular and identified acts or omissions of counsel

‘were outside the wide range of professionally competent

assistance.’” Chandler v. United States, 218 F.3d 1305, 1314

(11th Cir. 2000) (citations omitted). In other words, Mr.

Fisher must show that “no competent counsel would have taken

the action that his counsel did take.” Id. at 1315. In

deciding whether an attorney’s performance was deficient,

courts are “highly deferential” and “indulge [the] strong

presumption that counsel’s performance was reasonable and

that counsel made all significant decisions in the exercise

of reasonable professional judgment.” Id. at 1314 (internal

quotation marks omitted).

To satisfy Strickland’s second prong — prejudice — Mr.

Fisher 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. “[I]f a claim

fails to satisfy the prejudice component, the Court need not

make a ruling on the performance component.” Ortiz v. United

States, No 8:15-cr-409-VMC-JSS, 2017 WL 6021645, at *2 (M.D.

Fla. Jan. 11, 2017).

The Court will address each ground in turn.2

A. Ground One

In Ground One, Mr. Fisher argues that trial counsel, Mr.

Martin, provided ineffective assistance by “fail[ing] to

object to [Rule] 404(b) evidence being presented at trial.”

(Civ. Doc. # 1 at 2). He asserts that “[c]ounsel’s performance

2 The Court does not read Mr. Fisher’s reply as attempting to

raise any new grounds for relief. However, to the extent Mr.

Fisher’s reply (Civ. Doc. # 17) could be somehow construed as

raising additional grounds for relief, the Court declines to

consider such improperly raised grounds. See Oliveiri v.

United States, 717 F. App’x 966, 967 (11th Cir. 2018) (“[T]he

district court did not violate Clisby by failing to address

his claim that his counsel was ineffective for failing to

object to the sentencing court’s U.S.S.G. §

2B1.1(b)(11)(C)(i) enhancement. Oliveiri did not present this

claim in his § 2255 motion, but rather raised it for the first

time in his reply to the government’s response. By doing so,

he waived the claim. Although Clisby requires a district court

to resolve every claim properly presented in a § 2255 motion,

it does not require the court to address a claim that a movant

waives by failing to raise it until his reply brief.”

(citations omitted)).

fell below an objective standard of reasonableness when

Counsel failed to object to the testimony of Ms. Diane Knott”

as 404(b) evidence. (Id.). Mr. Fisher “contends that

counsel’s deficient performance prejudiced him by allowing

404(b) character evidence of other crimes, wrongs, or acts

being admitted without objection, where the law prohibits the

use of such evidence being presented, unless a hearing was

held prior to its admission.” (Id.).

Similarly, in his declaration, Mr. Fisher raises the

failure of trial counsel to object to the testimony of IRS

employee Roman Hernandez. (Civ. Doc. # 1-1 at 4). He states:

“During the testimony of [] Hernandez, I continuously asked

my counsel to object to his testimony because it sounded like

he was testifying to other crimes, wrongs, or acts that may

have been committed by me. Counsel ignored me and failed to

object to his testimony and failed to cross examine the

witness.” (Id.). Thus, Mr. Fisher insists that counsel was

ineffective for not raising an objection under Rule 404(b) to

Hernandez’s testimony.

This argument fails as to both Knott and Hernandez.

Neither Knott nor Hernandez presented 404(b) evidence of

other wrongs at trial. Rather, the government is correct that

it did not present any 404(b) evidence at trial. (Civ. Doc.

# 14 at 13). The testimony of both Knott and Hernandez, which

reviewed Mr. Fisher’s tax and financial records, did not

concern other “wrongs.” This testimony was directly relevant

to proving that Mr. Fisher had committed money laundering —

charges at issue at trial. Indeed, Mr. Martin explains in his

affidavit that he did not object to Knott as a witness because

he “believed the testimony of [] Knott was admissible.” (Civ.

Doc. # 12-1 at 5).

Because the testimony of Knott and Hernandez was

directly relevant to charges on trial, the Court would have

denied any objection to their testimony based on Rule 404(b)

as meritless. Thus, counsel was not ineffective for failing

to raise such an objection. See Card v. Dugger, 911 F.2d 1494,

1520 (11th Cir. 1990) (“Counsel cannot be labeled ineffective

for failing to raise issues which have no merit.”). And Mr.

Fisher was not prejudiced by that failure. See United States

v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“[A] lawyer’s

failure to preserve a meritless issue plainly cannot

prejudice a client.”).

The Motion is denied as to this Ground.

B. Ground Two

Next, Mr. Fisher argues that “[c]ounsel’s performance

fell below an objective standard of reasonableness when

Counsel failed to [n]egotiate a plea agreement that would

have minimized the sentencing exposure, instead of proceeding

to trial, which yielded a sentence of 30 years.” (Civ. Doc.

# 1 at 4). According to Mr. Fisher, “he had asked Counsel to

negotiate and see what the government was offering in terms

of a plea bargain.” (Id.). But, allegedly, “Counsel never

informed petitioner of what the government had offered in the

form of a plea bargain,” and “never presented a plea offer,

even after [Mr. Fisher] made a request to seek one.” (Id.).

Mr. Fisher supports his allegations with a sworn

declaration. (Civ. Doc. # 1-1). Among other things, he

declares: “During the time period of being represented by

counsel [Mr.] Martin, and right before trial, we discussed

the odds of winning in trial and losing. I asked counsel to

negotiate a plea agreement. I asked him to relay a proposal

that I am willing to plead guilty to several money laundering

charges in a plea deal that I only receive a five (5) year

prison sentence.” (Id. at ¶ 4). But, Mr. Fisher swears,

“counsel never asked the government, to [his] knowledge,

about a plea bargain, and never gave [Mr. Fisher] any

suggested plea offers from the government.” (Id. at ¶ 5). He

maintains that “Counsel forced [him] to go to trial.” (Id.).

In response, the United States relies on the affidavit

of trial counsel, Mr. Martin, which rebuts Mr. Fisher’s Motion

and declaration. (Civ. Doc. # 12 at 7-9). Mr. Martin avers

that he “advised Mr. Fisher that [counsel] had been in

criminal courts for over twenty years, in a variety of roles

(defense attorney, prosecutor, and judge) and this was the

strongest government case [counsel] had ever seen.” (Civ.

Doc. # 12-1 at 5). Mr. Martin “advised Mr. Fisher the evidence

against him was overwhelming and he should expect to be

convicted.” (Id.). According to Mr. Martin, “Mr. Fisher knew

it was his decision whether to plead guilty or go to trial”

and “knew [counsel’s] advice to him was to enter into a plea

agreement/plead guilty, cooperate with the government and do

everything he could to lessen his sentence.” (Id.). Yet, “Mr.

Fisher disregarded [counsel’s] advice and wanted to go to

trial, which is his right.” (Id.).

Furthermore, Mr. Martin swears that the “allegations

made in Ground Two of the Motion that Mr. Fisher asked me to

negotiate a plea agreement, find out what the government was

offering, and never informed Mr. Fisher about a plea agreement

are false.” (Id. at 3). Mr. Fisher never asked him to

negotiate a plea agreement. (Id.). Rather, according to Mr.

Martin, “Mr. Fisher was adamant he did not want a plea

deal/bargain or to plead guilty to anything.” (Id.). Mr.

Fisher allegedly told counsel “on numerous occasions when we

discussed the government’s proffered plea agreement or plea

agreements in general he was not interested in any plea

agreement/bargain.” (Id.).

The Supreme Court has explained that “as a general rule,

defense counsel has the duty to communicate formal offers

from the prosecution to accept a plea on terms and conditions

that may be favorable to the accused.” Missouri v. Frye, 566

U.S. 134, 145 (2012). “[I]n order to establish prejudice, a

defendant must show a reasonable probability that but for

counsel’s ineffectiveness: (1) ‘the plea offer would have

been presented to the court (i.e., that the defendant would

have accepted the plea and the prosecution would not have

withdrawn it in light of intervening circumstances)’; (2)

‘the court would have accepted its terms’; and (3) ‘the

conviction or sentence, or both, under the offer’s terms would

have been less severe than under the judgment and sentence

that in fact were imposed.’” Osley v. United States, 751 F.3d

1214, 1222 (11th Cir. 2014) (citation omitted).

The sworn statements of Mr. Fisher and Mr. Martin are

directly in conflict. If Mr. Fisher’s declaration is true,

then trial counsel’s performance was likely deficient, and

Mr. Fisher was likely prejudiced. The evidence is undisputed

that, in November 2018, the United States sent to Mr. Fisher’s

trial counsel a proposed plea agreement, under which Mr.

Fisher would agree to plead guilty to Counts One (conspiracy

to distribute controlled substances) and Twelve (money

laundering) and all other counts would be dismissed. (Civ.

Doc. # 12-2). Taking Mr. Fisher’s declaration as true, Mr.

Fisher was never told about this plea offer so had no

opportunity to accept it. (Civ. Doc. # 1-1 at 2). According

to Mr. Fisher, he “would have plead[ed] guilty to certain

criminal offenses listed in the indictment.” (Civ. Doc. # 1

at 4). Furthermore, according to him, Mr. Fisher wanted

counsel to convey to the government a plea offer under which

he would plead guilty to multiple counts of money laundering

if he would receive only a five-year sentence. (Civ. Doc. #

1-1 at 2). He alleges that counsel never conveyed his desired

plea terms to the government, which prevents the Court from

determining whether the government would have accepted such

a plea agreement. (Id.).

In sharp contrast, if Mr. Martin’s affidavit is true and

Mr. Martin conveyed the plea offer to Mr. Fisher, then Mr.

Fisher’s ineffective assistance of counsel claim would fail.

Under this version of events, Mr. Fisher was aware of the

plea offer but declined to accept that plea offer or any other

plea agreement.

Therefore, the Court defers ruling on the Motion as to

Ground Two so that an evidentiary hearing can be held on this

Ground. After hearing testimony at an evidentiary hearing,

the Court will be able to make the credibility determinations

necessary to resolve the dispute over this claim.

C. Ground Three

In this Ground, Mr. Fisher argues that his trial counsel

was ineffective because “he failed to request a multiple

conspiracy jury instruction which prevented the jury from

considering the possibility that [Fisher] was part of a

smaller conspiracy, or even a buyers-seller relationship, and

not the larger conspiracy.” (Civ. Doc. # 1 at 4). Mr. Fisher

maintains that “the evidence presented during trial varied

impermissibly from that in the charging indictment,” such

that “the proper instructions to the jury . . . would have

placed reasonable doubt that as to whether [Mr. Fisher] was

actually involved in a conspiracy or a buy-sell agreement.”

(Id. at 4-5).

This claim fails. Trial counsel was not ineffective for

choosing not to request a multiple conspiracy jury

instruction. “Generally, a multiple conspiracy instruction is

required where the indictment charges several defendants with

one overall conspiracy, but the proof at trial indicates that

a jury could reasonably conclude that some of the defendants

were only involved in separate conspiracies unrelated to the

overall conspiracy charged in the indictment.” United States

v. Calderon, 127 F.3d 1314, 1328 (11th Cir. 1997), holding

modified by United States v. Toler, 144 F.3d 1423 (11th Cir.

1998). Here, trial counsel did not request such instruction

because he “felt the evidence presented supported the counts

in the indictment with the exception of the count Mr. Fisher

was found not guilty.” (Civ. Doc. # 12-1 at 6). Trial counsel

“did not believe there was a variance issue with the jury

instructions and charging indictment.” (Id.).

The Court is not persuaded that trial counsel’s

performance was deficient for reasonably concluding that

there was no basis to request a multiple conspiracy jury

instruction. See Card, 911 F.2d at 1520 (“Counsel cannot be

labeled ineffective for failing to raise issues which have no

merit.”). Nor is it likely that the Court would have agreed

to include a multiple conspiracy instruction in the jury

instructions in this case. There was no basis at trial to

reasonably conclude that Mr. Fisher was only involved in

smaller, separate conspiracies unrelated to the overall

conspiracy charged in the indictment.

The Motion is denied as to this Ground.

D. First Ground Four

Next, Mr. Fisher asserts that trial counsel Mr. Martin

was ineffective for failing “to ‘specifically write

objections’ within the time set by the court within fourteen

days of being served with the magistrate’s report and

recommendation.” (Civ. Doc. # 1 at 5). This prejudiced him,

according to Mr. Fisher, because he was “not [] able to appeal

the district court’s order regarding the Motion to Suppress

[] on the issues of Fourth Amendment protections.” (Id.).

This claim also fails. True, trial counsel did not file

an objection to the Magistrate’s Report and Recommendation,

which recommended that Mr. Fisher’s motion to suppress be

denied. By that failure to object, Mr. Fisher was only able

to challenge the ruling on the motion to suppress under plain

error review, though the appellate court found that Mr. Fisher

had abandoned that argument. (Crim. Doc. # 278 at 8-10).

Nevertheless, Mr. Fisher was not prejudiced by the

failure to file an objection. No objection by counsel would

have altered this Court’s ruling on the motion to suppress,

nor led the appellate court to find that the evidence should

have been suppressed. As the Magistrate explained in his

Report and Recommendation (Crim. Doc. # 152), which this Court

adopted (Crim. Doc. # 172), there was no basis to exclude the

evidence from the search of Mr. Fisher’s residence based on

law enforcement’s holding Mr. Fisher in a police car for

multiple hours during the search. Again, the police searched

Mr. Fisher’s residence pursuant to a valid search warrant and

there was already probable cause to arrest Mr. Fisher before

the search. There simply were no grounds to exclude the

evidence obtained pursuant to the search warrant. See

Winfield, 960 F.2d at 974 (“[A] lawyer’s failure to preserve

a meritless issue plainly cannot prejudice a client.”).

Furthermore, even if the evidence at issue in the motion

to suppress had been suppressed, Mr. Fisher still would have

been convicted. Much of the evidence against Mr. Fisher was

not obtained from the search of his person and residence (the

evidence he sought to suppress). See (Crim. Doc. # 266 at

186-221) (evidence that significant amounts of fentanyl in

various forms were found in Mr. Fisher’s storage unit); (Crim.

Doc. # 267 at 109-130) (testimony about McKinney’s controlled

call to Mr. Fisher and subsequent purchase of over 1,500

fentanyl pills from Mr. Fisher). For this reason, trial

counsel explained to Mr. Fisher that “because the motion [to

suppress] only related to the search of Mr. Fisher and his

house, it was not dispositive.” (Civ. Doc. # 12-1 at 3). Thus,

even if the motion to suppress had been granted, Mr. Fisher

has not established a reasonable probability of a different

outcome at trial.

To the extent Mr. Fisher also faults trial counsel for

not filing an interlocutory appeal of the denial of his motion

to suppress (Civ. Doc. # 1-1 at 5), this argument also fails.

There was no jurisdictional basis for the Eleventh Circuit

Court of Appeals to hear an interlocutory appeal of the non-

final order denying Mr. Fisher’s motion to suppress. See 28

U.S.C. § 1291 (“The courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the

district courts of the United States.” (emphasis added));

United States v. Shalhoub, 855 F.3d 1255, 1260 (11th Cir.

2017) (“We apply the final judgment rule with ‘utmost

strictness in criminal cases,’ unless the challenged order

falls within the collateral order doctrine, which permits

appellate review of an interlocutory order that (1)

‘conclusively determine[s] the disputed question,’ (2)

‘resolve[s] an important issue completely separate from the

merits of the action,’ and (3) is ‘effectively unreviewable

on appeal from a final judgment.’” (citations omitted)).

Thus, trial counsel was not deficient for failing to file an

interlocutory appeal and Mr. Fisher was not prejudiced by

such failure.

The Motion is denied as to this Ground.

E. Second Ground Four

In his second Ground Four, Mr. Fisher argues that his

trial counsel, Mr. Martin, was ineffective for “fail[ing] to

move the district court for a continuance so he could

adequately prepare for [witness Detective Gwynne] that was

not on the witness list, and placed on the stand to testify

without proper notice from the government.” (Civ. Doc. # 1 at

5-6). Although Mr. Fisher insists that counsel should have

“asked for a continuance to better prepare for [Gwynne’s]

testimony” (Id.), he fails to articulate how counsel’s

preparing for a longer time before cross-examining Gwynne

would have altered his trial. At most, Mr. Fisher seems to

think that if a continuance had been granted, counsel could

have better “articulate[d] to the court what harm could result

from the admission of Gwynne’s testimony” so that such

testimony would not be admitted — not an allegation that

counsel would have better cross-examined Gwynne if he had

obtained a continuance. (Id. at 6).

This argument fails. Trial counsel objected to Gwynne

being permitted to testify because the government had

inadvertently left Gwynne off its witness list. (Crim. Doc.

# 268 at 84-97). The Court, however, overruled counsel’s

objection and held that Gwynne would testify after an

approximately hour-long break during which counsel could

prepare. (Id.). Mr. Fisher has not shown that counsel would

have somehow impeached Gwynne’s testimony if counsel had more

time to prepare for Gwynne’s testimony.

And, indeed, there’s no reason to think that Fisher was

prejudiced by counsel’s not obtaining a continuance to

prepare for Gwynne’s testimony. As Mr. Martin explains in his

affidavit, trial counsel “was prepared for the witness . . .

primarily because he was simply an inventory witness for items

seized during a search.” (Civ. Doc. # 12-1 at 6).

Likewise, to the extent Mr. Fisher believes Gwynne

should not have been permitted to testify because his motion

to suppress should have been granted (Civ. Doc. # 1 at 6),

any objection on the basis that the evidence about which

Gwynne testified should have been suppressed would have been

denied by the Court. The motion to suppress had been denied

by the Court and the Court would not have revisited that

decision at trial.

The Motion is denied as to this Ground.

F. Ground Five

Next, Mr. Fisher contends that trial counsel, Mr.

Martin, was ineffective for “fail[ing] to ask the court for

a continuance at the Daubert hearing.” (Civ. Doc. # 1 at 6).

According to Mr. Fisher,

Counsel was unprepared for trial and the testimony

given by the chemist for the government. Counsel’s

deficient performance prejudiced petitioner in

[the] Daubert hearing where had counsel made a

verbal motion for continuance, our chemist would

have been able to place reasonable doubt on the

government’s witnesses, and would have allowed

[him] to be better prepared for the expert

testimony from the government’s witnesses. (20

Chemist) Furthermore, Counsel failed to file an

interlocutory appeal asking the appeals court to

review the district court’s factual findings and

its legal conclusions, regarding the decision

rendered by the judge, at the Daubert hearing.

(Id.).

The chemist, Ms. Arvizo, whom Mr. Martin hired with Court

funding, had come “highly recommended by the Middle District

Federal Public Defender’s Office for both her expertise and

reliability.” (Civ. Doc. # 12-1 at 6). But two unfortunate

circumstances in Ms. Arvizo’s life, a serious fracture of her

arm and her husband’s death, resulted in her not providing

the additional proffers she was hired to provide. (Id. at 6-

7). Mr. Martin explains in his affidavit that, after Ms.

Arvizo’s husband died in early May 2019, he “realized [that]

what [he] already had from her was what [he] had to work with

and that [he] should not expect anything from her in the near

future.” (Id. at 7). Trial counsel realized that he “needed

to prepare for Court knowing [he] would probably not receive

those proffers and [their] scheduled preparation session for

her testimony would probably not occur.” (Id.). Indeed, trial

counsel “did not receive those proffers” and he and the

chemist “did not have our scheduled telephonic preparation

call.” (Id.). Going into the ex parte hearing with the

Magistrate to request additional funding, trial counsel “was

frustrated but tried to do the best [he] could with what [he]

had” and “tried to preserve the issue on the record as best

[he] could under the circumstances.” (Id.). At the ex parte

hearing, the Magistrate denied counsel’s request for

additional funding for the chemist.

Counsel was not ineffective for not requesting a

continuance of the Daubert hearing. As an initial matter, no

Daubert hearing actually took place in this case. The reason

a Daubert hearing did not take place — and no merits ruling

on the government’s Daubert motion to exclude the chemist as

unqualified was issued — was not trial counsel’s failure to

request a continuance. As mentioned before, at an ex parte

hearing before the Magistrate, the Magistrate denied trial

counsel the additional CJA funding necessary for the chemist

to appear and testify at a Daubert hearing or trial. Although

counsel had shown the Magistrate the report the chemist had

given him along with his motion for additional funding, the

Magistrate Judge did not think additional funding was

appropriate. (Crim. Doc. # 283 at 3-9). The Magistrate noted

that trial counsel could still use the information he learned

from his conferral with the chemist and the chemist’s earlier

report to inform counsel’s cross-examination of the

government’s chemistry experts. (Id. at 9). It is pure

speculation whether, if the chemist had been able to provide

the additional proffers to counsel to present to the

Magistrate, the Magistrate would have granted the requested

funding.

While the situation with the chemist was unfortunate,

trial counsel was not ineffective in his handling of the

situation. He had conferred once with the chemist and had

obtained a report from her, even though the chemist never

provided the additional proffers she had promised. Counsel

properly attempted to obtain the additional funds necessary

to have the chemist testify at the Daubert hearing and, if

she were not excluded as an expert, at trial. Because that

request for the necessary additional funding was denied, a

continuance — rather than a cancellation of — the Daubert

hearing would not have made any difference to Mr. Fisher’s

case. It was the denial of trial counsel’s request for

additional funding by the Court — rather than trial counsel’s

performance — that prevented a chemistry expert from

testifying on Mr. Fisher’s behalf at trial. See (Crim. Doc.

# 159 at 1-2) (“The defense ability to be prepared for and

present evidence at the Daubert hearing was contingent on

approval of additional funding for an expert. . . . The

defense has no funds to pay the expert to prepare for and

testify at the Daubert hearing and at trial.”). Furthermore,

Mr. Fisher “provides no argument, or proof, that had there

been a continuance, the ‘chemist would have been able to place

reasonable doubt’ on the government’s chemist witnesses who

analyzed the seized controlled substances.” (Civ. Doc. # 12

at 21).

Mr. Fisher also asserts that counsel should have

“file[d] an interlocutory appeal asking the appeals court to

review the district court’s factual findings and its legal

conclusions, regarding the decision rendered by the judge, at

the Daubert hearing.” (Civ. Doc. # 1 at 6); see also (Civ.

Doc. # 1-1 at 5). This argument also fails. There was no

jurisdictional basis for the Eleventh Circuit to hear an

interlocutory appeal of the Magistrate’s non-final order

about additional funding. See Shalhoub, 855 F.3d at 1260 (“We

apply the final judgment rule with ‘utmost strictness in

criminal cases,’ unless the challenged order falls within the

collateral order doctrine, which permits appellate review of

an interlocutory order that (1) ‘conclusively determine[s]

the disputed question,’ (2) ‘resolve[s] an important issue

completely separate from the merits of the action,’ and (3)

is ‘effectively unreviewable on appeal from a final

judgment.’” (citations omitted)). Thus, it was neither

deficient performance nor prejudicial for trial counsel to

not file such an interlocutory appeal.

The Motion is denied as to this Ground.

G. Ground Six

According to Mr. Fisher, trial counsel, Mr. Martin, was

ineffective because he “failed to challenge the sufficiency

of the indictment regarding the charges his client was found

not guilty of.” (Civ. Doc. # 1 at 7). Mr. Fisher insists that

the Court would have dismissed the indictment as to Count

Seven, the one count for which the jury found Mr. Fisher not

guilty. (Id.). If this count had been dismissed pretrial, Mr.

Fisher believes he would have been “in a better position in

the negotiation stages for a plea bargain” and would have

received “a plea agreement that would have lessened his

sentencing exposure.” (Id.).

This argument fails. Counsel was not ineffective for not

moving to dismiss the indictment as to Count Seven because

such a motion would have been denied as meritless. See United

States v. Hinds, 2 F. App’x 420, 423 (6th Cir. 2001) (“Trial

strategy includes the decision not to file certain motions

if, after investigation, doing so would not be necessary or

advantageous.”). The indictment properly tracks the language

of the statute for Count Seven regarding possession of

pentylone. (Crim. Doc. # 1 at 5); see United States v.

Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002) (“[A]n

indictment is sufficient if it ‘(1) presents the essential

elements of the charged offense, (2) notifies the accused of

the charges to be defended against, and (3) enables the

accused to rely upon a judgment under the indictment as a bar

against double jeopardy for any subsequent prosecution for

the same offense.’” (citation omitted)). The fact that the

jury acquitted Mr. Fisher of this count does not support that

the indictment was improperly pled for this count.

Likewise, Mr. Fisher suffered no prejudice because such

a motion to dismiss would have been denied. See Winfield, 960

F.2d at 974 (“[A] lawyer’s failure to preserve a meritless

issue plainly cannot prejudice a client.”); Zeigler v.

Crosby, 345 F.3d 1300, 1308-09 (11th Cir. 2003) (explaining

that the defendant had to show a reasonable probability that,

had a motion to dismiss the indictment been filed, it would

have been granted). Thus, the Motion is denied as to this

Ground.

H. First Ground Seven

In his first ground challenging appellate counsel’s

performance, Mr. Fisher argues that appellate counsel, Mr.

Farmer, was ineffective for “fail[ing] to file a claim on

direct review that [Mr. Fisher’s] sentence [violated] the

Apprendi Rule, where the evidence did not bear sufficient

indicia of reliability to support his sentence of 360 months.”

(Civ. Doc. # 7-8).3 His sentence was “a great disparity to

3 Although Mr. Fisher mentions Apprendi v. New Jersey, 530

U.S. 466 (2000), in this one sentence, he does not actually

raise a claim based on Apprendi. Indeed, the substance of

this Ground concerns the alleged sentencing disparity between

Mr. Fisher and his co-defendant and co-conspirators. This

does not relate to the rule announced in Apprendi. See Id. at

490 (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”). Furthermore, here, the jury

found Mr. Fisher guilty and found that his crimes involved

various controlled substances in varying amounts. (Crim. Doc.

# 200 at 1-5). Thus, Apprendi was not violated.

his co-defendant’s sentence” and this disparity “alone should

have prompted appellant counsel to submit the issue regarding

his client’s sentencing disparity.” (Id. at 8).

This argument fails. Appellate counsel, who also

represented Mr. Fisher at sentencing, raised the issue of the

sentencing disparity with the Court in his sentencing

memorandum and at sentencing. (Crim. Doc. # 248; Crim. Doc.

# 270 at 28-29). Mr. Fisher faced a guidelines sentence of

life in prison, but the Court varied downward to 360 months’

imprisonment largely because of counsel’s argument about

sentencing disparities. (Crim. Doc. # 270 at 30-31, 33-34).

While the 360-month sentence is still significantly longer

than the sentences Mr. Fisher’s co-defendants and co-

conspirators received, the disparity reflects that the co-

defendant and co-conspirators all cooperated significantly

with law enforcement and testified against Mr. Fisher, who

was an organizer of the drug conspiracy. (Id. at 28-29; Crim.

Doc. # 248 at 3).

Mr. Farmer avers in his affidavit: “Given both [the]

obvious distinctions between [Mr.] Fisher and his co-

conspirators, and the fact that this Court mitigated the

disparity in sentences by a substantial variance from life to

360 months, I concluded the there was no reasonable basis to

believe that the appellate court could find that this Court

nonetheless committed reversible error by imposing a sentence

that was unlawfully disparate.” (Civ. Doc. # 12-3 at 4). The

Court agrees.

Considering that Mr. Fisher had received a below-

guidelines sentence as a result of counsel’s argument about

the sentencing disparity, counsel was not ineffective for not

raising the sentencing disparity on appeal. See Card, 911

F.2d at 1520 (“Counsel cannot be labeled ineffective for

failing to raise issues which have no merit.”). An appellate

advocate does not have to raise every nonfrivolous issue.

Jones v. Barnes, 463 U.S. 745, 753-54 (1983). Rather,

“effective advocates ‘winnow out’ weaker arguments even

though the weaker arguments may be meritorious.” Heath v.

Jones, 941 F.2d 1126, 1131 (11th Cir. 1991). Even if appellate

counsel is deficient, failure to raise an argument on appeal

is not prejudicial unless the neglected argument would have

a reasonable probability of success on appeal. Id. at 1132.

There was no such reasonable probability of success on appeal

here.

In short, Mr. Fisher has not proven that appellate

counsel was ineffective for not raising a sentencing

disparity argument on direct appeal. Nor has Mr. Fisher shown

that raising this argument on appeal would have likely

resulted in a lower sentence, as necessary to establish

prejudice. The Motion is denied as to this Ground.

I. Second Ground Seven

Next, in his second Ground Seven, Mr. Fisher contends

that appellate counsel, Mr. Farmer, was ineffective for

“fail[ing] to frame the issue noted in Ground One of this

Motion.” (Civ. Doc. # 1 at 8). “[T]he 404(b) evidence

presented in trial, without hearing, deprived [Mr. Fisher] of

the right to a fair trial and this issue should have been

raised on direct review.” (Id.). According to Mr. Fisher, he

was prejudiced by “not having the appeals court review the

issue.” (Id.).

The Court disagrees. Counsel was not ineffective for

failing to raise the 404(b) argument on appeal as to either

Knott or Hernandez. Because trial counsel had not objected to

the relevant witnesses’ testimony during trial, such argument

would have been subject to the harsh plain error standard of

review on appeal. And appellate counsel reasonably concluded

that he could not satisfy the plain error standard regarding

the alleged 404(b) testimony. See (Civ. Doc. # 12-3 at 5) (“I

did not raise this issue because doing so would have been

patently futile. . . . I reasonably concluded that I could

not satisfy even the first prong [of the plain error

analysis], as there was no error in admitting Knott’s

testimony.”).

Furthermore, as the Court discussed in denying Ground

One, witnesses Knott and Hernandez did not present 404(b)

evidence. Their testimony went directly to the charged money

laundering counts. See (Civ. Doc. # 12 at 14) (“Neither Roman

Hernandez nor Diane Knott testified about 404(b) evidence.”);

see also (Civ. Doc. # 12-1 at 5) (trial counsel averring “I

believed the testimony of Ms. Knott was admissible”); (Civ.

Doc. # 12-3 at 6) (“Knott’s testimony was offered to support

the money laundering offenses that were charged in the

operative indictment. . . . The testimony was not extrinsic

Rule 404(b) evidence, but intrinsic evidence directly

relevant to charged counts.”). So, the argument that these

witnesses presented impermissible Rule 404(b) evidence is

meritless and would have been rejected if counsel had raised

it on appeal. See Card, 911 F.2d at 1520 (“Counsel cannot be

labeled ineffective for failing to raise issues which have no

merit.”). The Motion is denied as to this Ground.

J. Ground Eight

According to Mr. Fisher, appellate counsel, Mr. Farmer,

was ineffective because he “failed to present the issue

regarding the jury instruction which the jury was prevented

from considering whether [Mr. Fisher] was a part of a smaller

conspiracy, or buyers-seller relationship.” (Civ. Doc. # 1 at

8). Thus, this Ground is related to Ground Three.

This argument fails for the same reason as Ground Three.

It was reasonable for trial counsel not to request a multiple

conspiracies jury instruction. The Court likely would have

denied a request for such instruction.

Furthermore, because trial counsel did not request such

an instruction, appellate counsel would have had to satisfy

the harsh plain error standard of review in arguing that it

was erroneous for the Court not to give the multiple

conspiracies instruction. (Civ. Doc. # 12 at 16). Appellate

counsel correctly concluded that there was “no reasonable

basis to believe that the absence of these instructions was

erroneous in the first place, and clearly no reasonable basis

to believe that this error, if it existed, was either plain

or obvious, or affected substantial rights.” (Civ. Doc. # 12-

3 at 6). “In light of the standard pattern instruction this

Court provided, [appellate counsel] concluded in [his] best

professional judgment that [he] could satisfy none of the

three prongs of the plain error standard.” (Id.). Thus,

appellate counsel was not ineffective for failing to raise

this argument on direct appeal.

The Motion is denied as to this Ground.

K. Ground Nine

Next, Mr. Fisher argues that appellate counsel, Mr.

Farmer, was ineffective for “fail[ing] to present the issues

regarding the Magistrate’s Report and Recommendation, and the

failure to respond by the prior attorney of record.” (Civ.

Doc. # 1 at 8). Thus, this ground is related to the first

Ground Four. According to Mr. Fisher, appellate counsel

“could have written a claim of ineffective assistance of

counsel on this claim [on direct appeal] because the record

clearly shows that prior counsel did not file an objection

and the issues involves whether his client’s Fourth Amendment

rights were violated.” (Id.).

This claim fails. As an initial matter, appellate

counsel could not have raised an ineffective assistance of

trial counsel claim on direct appeal. See United States v.

Millwood, 961 F.2d 194, 195 (11th Cir. 1992) (“[W]e do not

consider ineffective counsel claims on direct appeal from a

conviction.”); see also (Civ. Doc. # 12-3 at 7) (appellate

counsel acknowledging that he “could not” raise a claim of

ineffective assistance of trial counsel on direct appeal).

Thus, appellate counsel was not ineffective for not raising

such argument. See Card, 911 F.2d at 1520 (“Counsel cannot be

labeled ineffective for failing to raise issues which have no

merit.”). Furthermore, Mr. Fisher was not prejudiced by the

failure to do so.

Additionally, this claim fails for the same reason the

first Ground Four fails. The motion to suppress lacked merit

and would have been denied even if Mr. Fisher’s counsel had

filed an objection to the Report and Recommendation. For the

same reason the motion to suppress was denied, the appellate

court would not have reversed this Court’s ruling on the

motion to suppress.

The Motion is denied as to this Ground.

L. First Construed Ground in Fisher’s Declaration

In his sworn declaration, Mr. Fisher includes multiple

allegations that do not appear to relate to the Grounds in

his Motion. In an abundance of caution, the Court will

construe these additional allegations as additional grounds

for relief.

The first construed Ground relates to multiple

allegations of trial counsel’s supposed poor performance in

preparation for and during the hearing on the motion to

suppress. In his declaration, Mr. Fisher asserts that trial

counsel, Mr. Martin, had discussed with him “a plan of defense

which included him subpoenaing the traffic stop video, Google

maps for traffic stop, and Uber Driver for purposes of

Suppression Hearing and Trial.” (Civ. Doc. # 1-1 at 1). But

counsel “never subpoenaed any of the foregoing.” (Id.). Mr.

Fisher continues:

At no time did counsel ever discuss with me a change

in plans that we agreed upon, instead, counsel

failed to subpoena the traffic stop video evidence

for purpose of suppression hearing. Nor did counsel

subpoena the Uber driver for purposes of

suppression hearing. Nor did counsel present the

Google maps for the traffic stop which would have

provided a clearer picture of distance of where the

traffic stop occurred, and the distance to the

address where the search and seizure occurred.

(Id. at 1-2).

Additionally, Mr. Fisher alleges that he wanted to

testify at the evidentiary hearing to “explain [his] side of

what happened regarding the alleged traffic stop.” (Id. at

3). However, according to Mr. Fisher, counsel “would not allow

[him] the opportunity to take the witness stand when [Mr.

Fisher] requested to do so.” (Id.).

These arguments fail. Trial counsel was not ineffective

for making the strategic decision not to call the Uber driver

as a witness at the suppression hearing. The Uber driver was

the person from whose vehicle Mr. Fisher was taken by police

to be detained for the duration of the search of Mr. Fisher’s

residence. As trial counsel explains, “[a]fter reviewing the

law enforcement reports, discussing it with Mr. Fisher, and

visiting the scene, [he] saw the Uber driver as a cumulative

witness and not relevant to any contested issue.” (Civ. Doc.

# 12-1 at 4). This was a reasonable strategic choice for trial

counsel to make.

Additionally, trial counsel reasonably advised Mr.

Fisher not to testify at the suppression hearing because (1)

trial counsel “did not think [Mr. Fisher] had anything to add

to the evidence because his version of the

stop/arrest/detention/location did not vary in any material

or significant way from the law enforcement version,” (2)

“Mr. Fisher does not stay on point potentially opening the

door to all sorts of areas for cross examination,” and (3)

“he has the tendency to change his version of events.” (Id.

at 1-2).

Even assuming that counsel was ineffective in relation

to his presentation at the evidentiary hearing on the motion

to suppress, Mr. Fisher cannot show prejudice. As discussed

before regarding the failure to file an objection to the

Report and Recommendation, Mr. Fisher’s motion to suppress

lacked merit. There was no basis to suppress the evidence

taken from Mr. Fisher’s residence or his person. The search

of the residence was conducted pursuant to a valid search

warrant. And there was probable cause to arrest Mr. Fisher

before the search was conducted, so even if the detention of

Mr. Fisher during the search rose to the level of an arrest,

it was permissible.

Even if Mr. Fisher or the Uber driver had testified at

the hearing or his counsel had presented evidence from Google

maps or video of the traffic stop, the motion to suppress

still would have been denied. Thus, Mr. Fisher suffered no

prejudice. The Motion is denied as to this construed Ground.

See Winfield, 960 F.2d at 974 (“[A] lawyer’s failure to

preserve a meritless issue plainly cannot prejudice a

client.”); Card, 911 F.2d at 1520 (“Counsel cannot be labeled

ineffective for failing to raise issues which have no

merit.”).

M. Second Construed Ground in Fisher’s Declaration

In his declaration, Mr. Fisher avers the following:

On the subject of trial, counsel never subpoenaed

any witnesses who[se] testimony would be relevant

to the defense of the conspiracy charges, or the

illegal search and seizure of items presented

during trial. Counsel was asked by me to contact

the Uber Driver to testify to regarding his

detainment and mine. Counsel never contacted the

Uber Driver when he was requested to do so.

(Civ. Doc. # 1-1 at 2).

Mr. Fisher never specifically names the witnesses he

faults trial counsel, Mr. Martin, for not calling to testify.

Even as to the Uber driver in whose car Mr. Fisher was sitting

when stopped by police for the search of Mr. Fisher’s

residence, Mr. Fisher does not provide a name. Mr. Fisher

also is unclear on exactly what these witnesses’ testimony

would have been. He does not identify what exculpatory

evidence the potential witnesses would have provided. See

Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007)

(explaining that “[o]rdinarily, a defendant’s failure to

present some evidence from the uncalled witness regarding

that witness’s potential testimony and willingness to testify

would be fatal to an ineffective assistance of counsel

claim”). Indeed, Mr. Fisher did not submit affidavits from

the potential witnesses setting forth their possible

testimony. See Streeter v. United States, 335 F. App’x 859,

864 (11th Cir. 2009) (holding that the district court did not

err in denying claim for ineffective assistance of counsel

when movant did not provide an affidavit setting forth the

testimony of the potential witness). Thus, his allegations

are conclusory and insufficient to establish either deficient

performance or prejudice. See Wilson v. United States, 962

F.2d 996, 998 (11th Cir. 1992) (per curiam) (“Conclusory

allegations of ineffective assistance are insufficient.”

(citation omitted)).

Additionally, the decision to call a witness is

typically a strategic decision and there is a strong

presumption that declining to call the witness was “sound

trial strategy.” Place v. United States, No. 09-10152-NMG,

2014 WL 2803740, at *3 (D. Mass. June 20, 2014); see also

Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978)

(“[C]omplaints of uncalled witnesses are not favored, because

the presentation of testimonial evidence is a matter of trial

strategy and because allegations of what a witness would have

testified are largely speculative.”). Given this, Mr. Fisher

has not met his burden of establishing that counsel was

ineffective. Indeed, regarding the Uber driver, trial counsel

explained his strategic decision not to call him as a witness:

“After reviewing the law enforcement reports, discussing it

with Mr. Fisher, and visiting the scene, I saw the Uber driver

as a cumulative witness and not relevant to any contested

issue.” (Civ. Doc. # 12-1 at 4). Trial counsel’s decision

regarding witnesses was reasonable.

The Motion is denied as to this construed Ground.

N. Third Construed Ground in Fisher’s Declaration

Finally, Mr. Fisher also asserts in his declaration:

During the time periods of being represented by the

following attorney’s, Mark Rodriguez and Kenneth

Martin, I raised the issue regarding drugs being

found in [] my storage unit, in a Maserati that I

owned. The Maserati was returned to me 4 days after

the seizure. I asked all attorneys at each stage to

investigate my claim that the drugs found in the

Maserati were planted.

(Civ. Doc. # 1-1 at 5).

This claim fails. As an initial matter, “counsel need

not always investigate before pursuing or not pursuing a line

of defense. Investigation (even a nonexhaustive, preliminary

investigation) is not required for counsel reasonably to

decline to investigate a line of defense thoroughly.”

Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002)

(citation omitted). “The decision whether to present a line

of defense, or even to investigate it, ‘is a matter of

strategy and is not ineffective unless the petitioner can

prove that the chosen course, in itself, was unreasonable.’”

Id. (citation omitted); see also Stephens v. United States,

14 F. Supp. 2d 1322, 1331 (N.D. Ga. 1998) (“A decision not to

investigate a potential defense, like other litigation

decisions, need only be reasonable to fall within the range

of professionally competent assistance.” (citation omitted)).

Here, Mr. Martin explained in his affidavit why he did

not pursue this theory: “In my review of the evidence, I did

not see a legitimate theory to accuse law enforcement of

planting evidence other than Mr. Fisher’s argument that

because law enforcement had his car, they must have planted

evidence.” (Civ. Doc. # 12-1 at 7-8). And, indeed, there was

significant evidence of Mr. Fisher’s drug possession and

dealing besides the discovery of drugs in his Maserati.

There is no reason to think that the result of the trial

would have changed if this theory had been presented. In fact,

Mr. Fisher has presented no evidence to support the theory

that drugs were planted in his Maserati. Thus, this conclusory

allegation about the planted drugs theory is insufficient to

establish entitlement to relief. See Wilson, 962 F.2d at 998

(per curiam) (“Conclusory allegations of ineffective

assistance are insufficient.” (citation omitted)).

This construed Ground is denied.

III. Evidentiary Hearing

As the Court readily determined that all of Mr. Fisher’s

Grounds besides Ground Two lack merit, no evidentiary hearing

is required as to those Grounds. See 28 U.S.C. § 2255(b)

(stating that an evidentiary hearing is not necessary if “the

motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief”); see also

Hernandez v. United States, 778 F.3d 1230, 1232-33 (11th Cir.

2015)(“To establish that he is entitled to an evidentiary

hearing, Hernandez had to allege facts that would prove that

his counsel performed deficiently and that he was prejudiced

by his counsel’s deficient performance.”).

However, an evidentiary hearing is needed on Ground Two

of the Motion. “Rule 8(c) of the Rules Governing § 2255

Proceedings provides that ‘[i]f an evidentiary hearing is

required, the judge shall appoint counsel for a movant who

qualifies for the appointment of counsel under 18 U.S.C. §

3006A(g)[.]’” Shepherd v. United States, 253 F.3d 585, 587

(11th Cir. 2001). Section 3006A “allows for the appointment

of counsel when the interests of justice so require and the

movant is financially unable to obtain representation.” Id.

To that purpose, the Court requests that Magistrate Judge

Wilson please appoint counsel to represent Mr. Fisher at the

evidentiary hearing.

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

As to the Grounds that the Court has denied, the Court

declines to issue a certificate of appealability because Mr.

Fisher has failed to make a substantial showing of the denial

of a constitutional right as required by 28 U.S.C. §

2253(c)(2). Nor will the Court authorize Mr. Fisher to proceed

on appeal in forma pauperis because such an appeal would not

be taken in good faith. See 28 U.S.C. § 1915(a)(3). Mr. Fisher

shall be required to pay the full amount of the appellate

filing fee pursuant to Section 1915(b)(1) and (2).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Dion Fisher’s pro se 28 U.S.C. § 2255 Motion to Vacate,

Set Aside, or Correct Sentence. (Civ. Doc. # 1; Crim.

Doc. # 281) is DENIED in part and DEFERRED in part.

(2) The Motion is denied as to Grounds One, Three, First

Four, Second Four, Five, Six, First Seven, Second Seven,

Eight, Nine, and all construed Grounds. Judgment on

these claims will not be entered at this time.

(3) The Court defers ruling on Ground Two pending an

evidentiary hearing. The evidentiary hearing will solely

be held to address the merits of Ground Two, and the

Court will not permit Mr. Fisher to amend that Ground or

add additional grounds.

(4) The Clerk is directed to set this case for an evidentiary

hearing.

(5) Pursuant to Rule 8(c) of the Rules Governing § 2255

Proceedings, the Court finds that counsel should be

appointed to represent Mr. Fisher at the evidentiary

hearing. The Court asks that Magistrate Judge Wilson

please appoint counsel to represent Mr. Fisher.

DONE and ORDERED in Chambers in Tampa, Florida, this

29th day of August, 2024.

VIRGINIA M,. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

47]