Hardy v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JASON RYAN HARDY,

v. Case No. 8:20-cr-318-VMC-TGW

8:23-cv-2932-VMC-TGW

UNITED STATES OF AMERICA.

______________________________/

ORDER

This matter is before the Court on Jason Ryan Hardy’s

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

Correct Sentence. (Civ. Doc. ## 1-2; Crim. Doc. ## 97-98).

The United States of America responded on March 19, 2024.

(Civ. Doc. # 7). Mr. Hardy filed a reply on March 26, 2024.

(Civ. Doc. # 8). The Motion is denied.

I. Background

In October 2020, Mr. Hardy was indicted on one count of

conspiring to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C §§ 846 and

841(b)(1)(A). (Crim. Doc. # 1). For the majority of the case,

Mr. Hardy was represented by attorney Jeffrey Brown.

Mr. Hardy subsequently pled guilty pursuant to a plea

agreement. (Crim. Doc. ## 55, 57, 59). At the January 11,

2022 change of plea hearing, Mr. Hardy was placed under oath.

(Crim. Doc. # 99 at 6-7). Mr. Hardy had a copy of his plea

agreement in front of him and swore that he had reviewed it

with his attorney. (Id. at 11). Assuring the Court that he

understood the charge and that he had reviewed it with his

attorney, Mr. Hardy pleaded guilty. (Id. at 12, 20). Mr. Hardy

understood that if he had gone to trial the United States

needed to prove that two or more people had a plan to

distribute 500 grams or more of a mixture and substance which

contained a detectable amount of methamphetamine. (Id. at 12–

13). Likewise, Hardy assured the Court that he had read the

factual basis in the plea agreement and that the factual basis

was true. (Id. at 14-15).

The plea agreement’s recitation of the facts follows:

Beginning on an unknown date and continuing

through in or around October 2020, the defendant

Jason Hardy, in the Middle District of Florida, did

knowingly and willfully conspire with others to

distribute 500 grams or more of methamphetamine. As

part of this conspiracy, the defendant flew to

California and coordinated the delivery of mail

packages of methamphetamine from California to the

Middle District of Florida.

On or about June 19, 2020, law-enforcement

officers interdicted and seized one such package.

Officers searched the package, and in it they found

approximately nine kilograms of methamphetamine, as

confirmed by laboratory tests. Hardy intended to

receive that package in the Middle District of

Florida and further distribute the methamphetamine

in the district.

(Crim. Doc. # 56 at 16).

Further detail about the interdiction of the drugs was

provided in the amended final presentence report, which the

Court adopted at sentencing. (Doc. # 85). “On June 19, 2020,

police officers from El Centro, California . . . responded to

a FedEx store located [in] Imperial, California, about a

suspicious package the FedEx employees had received.” (Id. at

¶ 10). The FedEx employees considered the package suspicious

because of the behavior of the women who brought it in and

because “both the sender and recipient addresses listed on

the shipping label were Florida addresses.” (Id. at ¶¶ 10-

11). Mr. Hardy’s name and address were listed as the shipper.

(Id. at ¶ 12). “Based upon the FedEx workers’ suspicions, the

employees opened the package and contacted law enforcement.”

(Id.).

Then, “a certified drug detection dog . . . made a

positive alert on the package which indicated the likely

presence of a controlled substance.” (Id. at ¶ 13). Officers

returned to the police department and “inspected the contents

of the package and located methamphetamine.” (Id.). Federal

authorities in Tampa “adopted the case” and received the

package, which contained methamphetamine, on June 22, 2020.

(Id. at ¶ 14).

After determining that Mr. Hardy agreed with the factual

basis, the change of plea hearing continued. Mr. Hardy swore

he understood that, after his guilty plea had been accepted,

he could not withdraw his guilty plea. (Doc. # 99 at 16).

After advising Mr. Hardy generally of the trial rights he

would waive by pleading guilty, the Court expressly

questioned him regarding his waiver of any applicable

defenses:

THE COURT: Further, if you have any defense to this

charge any defense that you have is lost by a plea

of guilty. Do you understand that?

[MR. HARDY]: Yes, sir.

THE COURT: And if there’s any claim of an unlawful

search and seizure or unlawful statements obtained,

any claim like that is lost by a plea of guilty. Do

you understand that?

[MR. HARDY]: Yes, sir.

(Id. at 18).

Mr. Hardy assured the Court that he did not need

additional time to confer with his counsel concerning whether

he should plead guilty, that he was satisfied with counsel’s

representation in his case, and that there was nothing he

thought counsel should have done that he did not do. (Id. at

19). During the Court’s discussion of the applicable

penalties, Mr. Hardy’s counsel pointed out that Mr. Hardy had

decided to enter the plea agreement before the United States

had filed a notice of its intent to seek enhanced penalties

under 21 U.S.C. § 851, and that if the United States had not

foregone the enhanced penalties, Mr. Hardy would have faced

a mandatory minimum term of 15 years’ imprisonment. (Id. at

8–9, 20).

Mr. Hardy swore he understood his limited rights to

appeal. (Id. at 28–29). He agreed that he had entered a guilty

plea freely and voluntarily. (Id. at 29–30). No one forced,

coerced, or promised Mr. Hardy anything in return for a guilty

plea. (Id. at 30). Mr. Hardy agreed that his answers to the

Court’s questions had been truthful and that nobody had

coached him into testifying anything other than the truth.

(Id. at 31). Having determined that a factual basis supported

the guilty plea, the Court found Mr. Hardy’s plea to be both

knowing and voluntary. (Id. at 33). The Court accepted his

plea and adjudicated him guilty. (Doc. # 58).

On December 9, 2022, the Court sentenced Mr. Hardy to

130 months’ imprisonment, a below-guidelines sentence. (Crim.

Doc. ## 88, 90). In his sentencing memorandum and during the

sentencing, Mr. Hardy’s counsel objected to the calculation

of the methamphetamine sentencing guideline, the failure to

give Mr. Hardy a minor role adjustment, and Mr. Hardy’s status

as a career offender. (Crim. Doc. # 82; Crim. Doc. # 88; Crim.

Doc. # 100 at 9-15). The Court overruled these objections.

(Crim. Doc. # 100 at 9-15). Mr. Hardy did not appeal.

Now, Mr. Hardy seeks to vacate his conviction and

sentence, raising a claim of ineffective assistance of

counsel. (Civ. Doc. # 1; Crim. Doc. ## 97-98). The United

States has responded (Civ. Doc. # 7), and Mr. Hardy has

replied. (Civ. Doc. # 8). The Motion is ripe for review.

II. Discussion

Mr. Hardy raises one ground for relief in his 2255

Motion: a claim of ineffective assistance of counsel. (Civ.

Doc. # 1 at 4). According to Mr. Hardy, “counsel Jeffrey Brown

performed ineffectively by failing to challenge evidence that

was the result of an illegal search and seizure in violation

of the Fourth Amendment. Thus, the evidence was obtained

illegally. Counsel’s failure to challenge the evidence lead

[sic] to a conviction based on illegal evidence or fruits of

the poisonous tree.” (Id.).

This claim has been timely raised and is cognizable.

(Civ. Doc. # 7 at 7). Mr. Hardy bears the burden of proof and

persuasion on every aspect of his claim. Beeman v. United

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.

Hardy 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.

Hardy 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.

Hardy 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 United States is correct that Mr. Hardy, in passing,

claims that counsel’s ineffective assistance in failing to

challenge the evidence renders his guilty plea involuntary.

See (Civ. Doc. # 2 at 3) (“The drug evidence was obtained in

violation of the Fourth Amendment, during an unlawful search

of Movant’s mail, and Counsel’s failure to challenge the drug

evidence renders Movant’s plea invalid and unknowing.”). Mr.

Hardy is incorrect as his plea was knowing and voluntary.

The Supreme Court has held that “the two-part Strickland

[] test applies to challenges to guilty pleas based on

ineffective assistance of counsel,” and that “to satisfy the

‘prejudice’ requirement, the defendant must show that there

is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 58–59 (1985).

“There is a strong presumption that statements made during

the plea colloquy are true. Consequently, a defendant bears

a heavy burden to show that his statements under oath were

false.” Patel v. United States, 252 F. App’x 970, 975 (11th

Cir. 2007) (citations omitted). The Court is mindful that a

“section 2255 motion is not designed to account for buyer’s

remorse regarding a defendant’s decision to plead guilty.”

Dawson v. United States, No. 8:16-cr-500-VMC-AEP, 2019 WL

11704149, at *6 (M.D. Fla. Apr. 15, 2019).

Mr. Hardy made numerous statements under oath at his

change of plea hearing that undercut that his plea was

involuntary. The Court fully explained the elements of the

offense and maximum penalties to Mr. Hardy, who agreed that

he understood and had reviewed the plea agreement with

counsel. (Doc. # 99 at 11-31). Importantly, the Court

explicitly explained to Mr. Hardy that “if there’s any claim

of an unlawful search and seizure or unlawful statements

obtained, any claim like that is lost by a plea of guilty.”

(Id. at 18). Mr. Hardy stated that he understood, but he still

proceeded to plead guilty. (Id.). Mr. Hardy stated that he

was entering the guilty plea voluntarily and that no one had

forced, threatened, or coerced him into pleading guilty. (Id.

at 29-31).

Mr. Hardy has not satisfied the heavy burden of showing

that his statements made under oath during his plea colloquy

were false. See Winthrop-Redin v. United States, 767 F.3d

1210, 1217 (11th Cir. 2014) (“[B]ecause Winthrop–Redin made

statements under oath at a plea colloquy, ‘he bears a heavy

burden to show his statements were false.’” (citation

omitted)). The Court does not credit Mr. Hardy’s new

conclusory allegation that his plea was involuntary and

unknowing because counsel failed “to challenge the drug

evidence” as illegally obtained. (Civ. Doc. # 2 at 3).

Therefore, Mr. Hardy’s plea was knowing and voluntary.

Regardless, Mr. Hardy’s claim of ineffective assistance

of counsel fails on the merits. As mentioned before, Mr. Hardy

faults his counsel for not moving to suppress the drug

evidence obtained by law enforcement. “[W]here a petitioner

faults his lawyer for failing to pursue a motion to suppress

prior to entering a plea, both the deficient performance and

prejudice prongs of Strickland turn on the viability of the

motion to suppress.” Arvelo v. Sec’y, Fla. Dep’t of Corr.,

788 F.3d 1345, 1348 (11th Cir. 2015).

The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S.

Const. Amend. IV. Once a private individual conducts a search

of property (such as a sealed package) of their own accord,

a law enforcement officer may replicate that search without

violating the Fourth Amendment. See United States v.

Jacobsen, 466 U.S. 109, 119 (1984) (“The agent’s viewing of

what a private party had freely made available for his

inspection did not violate the Fourth Amendment.”). The

subsequent search is permissible as long as this search by

law enforcement does not “exceed[] the scope of the private

search.” Id. at 115. “In other words, the government’s ability

to conduct a warrantless follow-up search of this kind is

expressly limited by the scope of the initial private search.”

United States v. Lichtenberger, 786 F.3d 478, 482 (6th Cir.

2015).

The record here establishes that the FedEx employees

were suspicious of the package and opened it of their own

accord. (Doc. # 85 at ¶ 12). Only after they saw the contents

of the package did the FedEx employees contact law

enforcement, whose drug dog later alerted on the package.

(Id. at ¶ 13). “[L]aw enforcement simply replicated a search

that was initially performed by FedEx employees, who were

private actors, acting on their own accord when they opened

the package.” (Civ. Doc. # 7 at 13). “Therefore, the officer’s

viewing of what the FedEx employees . . . had freely made

available for his inspection, did not violate the Fourth

Amendment since it did not exceed the scope of the FedEx

employees’ search.” (Id.); see also United States v. Young,

350 F.3d 1302, 1306–07 (11th Cir. 2003) (“Here, too, the

Federal Express packages were ‘effects’ in the context of the

Fourth Amendment, and therefore defendants presumptively

possessed a legitimate expectation of privacy in their

contents. Per Jacobsen, this privacy interest would have been

eliminated had the Federal Express employee inspected the

package, discovered the currency and then contacted the IRS

agents to replicate the search.”). For this reason, no Fourth

Amendment violation occurred here.

In his reply, Mr. Hardy states conclusorily that FedEx

“has a very clear policy” that its workers not open suspicious

packages, but rather leave it to law enforcement to open

packages. (Civ. Doc. # 8 at 4).1 So, Mr. Hardy reasons, it

1 Mr. Hardy also asserts for the first time in his reply that

there is “a clear Brady violation where the government has

withheld the discovery.” (Civ. Doc. # 8 at 4). It is improper

to assert a new claim in a reply brief. Thus, to the extent

Mr. Hardy has attempted to raise a Brady claim or any other

new claim in his reply, the Court declines to consider those

claims. 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

must have been law enforcement who opened the package without

a warrant. (Id.). Mr. Hardy, however, does not provide any

evidence to support this, such as a copy of FedEx’s alleged

policy or an affidavit from a FedEx employee who handled the

package at issue in this case. See Tejada v. Dugger, 941 F.2d

1551, 1559 (11th Cir. 1991) (holding that conclusory

statements, unsupported by specific facts or the record, are

insufficient to demonstrate entitlement to habeas relief).

Consequently, there is no factual support for Mr. Hardy’s

contention that law enforcement illegally opened the package.

Indeed, Mr. Hardy seems to acknowledge that he does not have

evidence to establish that a Fourth Amendment violation

occurred. He contends that “[a]n investigation will reveal

that the discovery in this case refutes the government’s

position” and he “pleads with this Court to develop the record

and order the government to produce the entire discovery which

tells a different story than the developed record the

government has alluded to.” (Civ. Doc. # 8 at 4-5) (emphasis

added). This is insufficient to satisfy Mr. Hardy’s burden.

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

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

(citations omitted)).

In short, because no Fourth Amendment violation

occurred, Mr. Hardy has not established that any motion to

suppress the drug evidence would have been meritorious. See

Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir.

2016) (“If a search was constitutional, then counsel is not

obligated to move to suppress the evidence or dismiss the

indictment and a defendant is not prejudiced by counsel’s

failure to do so.”). Thus, counsel was not ineffective for

failing to file such a motion to suppress. 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. Hardy 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.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Jason Ryan Hardy’s pro se 28 U.S.C. § 2255 Motion to

Vacate, Set Aside, or Correct Sentence (Civ. Doc. ## 1-

2; Crim. Doc. ## 97-98) is DENIED.

(2) The Clerk is directed to enter judgment in favor of the

United States of America and against Mr. Hardy and,

thereafter, to close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this 1st

day of October, 2024.

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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