Barker v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANUER STEVENS BARKER,

a/k/a ANUAR STEVEN BACER,

v. Case No. 8:19-cr-487-VMC-AAS

8:23-cv-774-VMC-AAS

UNITED STATES OF AMERICA.

_______________________________/

ORDER

This matter is before the Court on Anuer Stevens Barker’s

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

or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 162), which

was docketed by the Clerk on April 7, 2023. The United States

of America responded on July 24, 2023. (Civ. Doc. # 5). Mr.

Barker failed to file a reply. For the reasons that follow,

the Motion is dismissed as untimely.

I. Background

In February 2020, pursuant to a plea agreement, Mr.

Barker — identified as Anuar Steven Bacer in the criminal

case — pled guilty to conspiracy to distribute and possess

with intent to distribute five kilograms or more of cocaine

while on board a vessel subject to the jurisdiction of the

United States. (Crim. Doc. ## 71, 81, 84, 96). During his

change of plea hearing, the Magistrate Judge went over the

elements of the charged offense and the factual basis of the

plea agreement with Mr. Barker. (Crim. Doc. # 163 at 16-17,

38-43). Mr. Barker swore under oath that he understood the

sentencing guidelines, had no difficulty communicating with

his counsel, and was satisfied with his decision to plead

guilty. (Id. at 17, 32-34). He swore that the factual basis

was correct regarding his conduct. (Id. at 19, 39-43). He

further swore that he fully understood the plea agreement and

that he had discussed it with his attorney. (Id. at 17, 19).

Mr. Barker acknowledged that he had not been threatened or

forced into pleading guilty or into signing the plea

agreement. (Id. at 29-30).

Subsequently, the Court sentenced him to 200 months’

imprisonment. (Crim. Doc. ## 145, 146). The sentencing

guidelines reflected that Mr. Barker had a previous federal

felony conviction for similar drug trafficking crimes. (Crim.

Doc. # 139 at 8). Mr. Barker’s judgment of conviction was

entered on June 22, 2020. (Crim. Doc. # 146). He did not

appeal.

Years later, on April 7, 2023, the Clerk docketed Mr.

Barker’s 2255 Motion. (Civ. Doc. # 1; Crim. Doc. # 162). The

United States has responded, arguing the 2255 Motion is

untimely and, alternatively, should be denied on the merits.

(Civ. Doc. # 5). Mr. Barker failed to reply.

II. Discussion

A. Timeliness

As an initial matter, the United States argues that Mr.

Barker’s Motion should be dismissed as untimely. (Civ. Doc.

# 5 at 5-6).

“The [Antiterrorism and Effective Death Penalty Act of

1996 (‘AEDPA’)] established a one-year statute of limitations

applicable to § 2255 motions, which begins to run from, inter

alia, ‘the date on which the judgment of conviction becomes

final.’” Ramirez v. United States, 146 F. App’x 325, 326 (11th

Cir. 2005) (quoting 28 U.S.C. § 2255). “In most cases, a

judgment of conviction becomes final when the time for filing

a direct appeal expires.” Id.

Judgment was entered in this case on June 22, 2020.

(Crim. Doc. # 146). Under Federal Rule of Appellate Procedure

5(b)(1)(A), Mr. Barker had fourteen days — until July 6, 2020

— to file a notice of appeal. Fed. R. App. P. 5(b)(1)(A). But

Mr. Barker did not file a notice of appeal. Thus, Mr. Barker’s

judgment of conviction became final on July 6, 2020. “The

limitation period started the next day, and the time to file

a Section 2255 motion expired a year later” — on July 7, 2021.

Salley v. United States, No. 8:19-cr-317-MSS-AEP, 2023 WL

3568618, at *1 (M.D. Fla. May 18, 2023).

That leaves the question of when Mr. Barker filed the

instant Motion. “Under the prison mailbox rule, a pro se

prisoner’s filing is deemed filed on the date the prisoner

delivers it to prison authorities for mailing.” Johnson v.

Burke Cnty. Det. Ctr., No. 21-13373-A, 2023 WL 2662912, at *1

(11th Cir. Jan. 31, 2023). But Mr. Barker did not sign or

date his Motion, so the Court is unable to tell when Mr.

Barker submitted it for mailing to the prison authorities.

(Civ. Doc. # 1). While the Court also has the mailing

envelope, there is no discernible postmark or other date

stamping on the envelope. (Civ. Doc. # 1-1).

Because the Motion is not dated and no postmark is

discernible on the mailing envelope, the Court must deem the

Motion filed, at the earliest, on April 7, 2023, when the

Clerk docketed it. See, e.g., Johnson v. Burke Cnty. Det.

Ctr., No. 21-13373-A, 2023 WL 2662912, at *1 (11th Cir. Jan.

31, 2023) (“Johnson’s undated notice of appeal is deemed

filed, at the earliest, on September 27 when it was

postmarked.”); Thomas v. Sec’y, Fla. Dep’t of Corr., No. 3:18-

cv-399-BJD-JBT, 2020 WL 2114682, at *1 n.1 (M.D. Fla. May 4,

2020) (“[T]he Petition is undated and contains no

certification of delivery to prison officials for mailing,

nor does it contain a date stamp reflecting the date

Petitioner turned the document over to prison authorities.

Therefore, Petitioner is not entitled to the benefit of the

mailbox rule with respect to this filing and thus, the Court

references the date the document was filed with the Clerk of

Court.” (citation omitted)); United States v. Feggans, No.

CRIM. 3:04CR00031-4, 2008 WL 5047825, at *1 (W.D. Va. Nov.

25, 2008) (treating petitioner’s “undated § 2255 motion” as

filed on the date the Court received it and dismissing the

motion as untimely).

April 7, 2023, is almost two years after the July 7,

2021, deadline for Mr. Barker to file a 2255 motion. The Court

notes that Mr. Barker has not even attempted to argue that

equitable tolling should apply, and the Court is not aware of

any grounds for equitable tolling in this case. Therefore,

Mr. Barker’s Motion is untimely, and the Motion is dismissed.

B. Merits

Alternatively, even if the Motion were timely, the Court

would deny it on the merits. Mr. Barker bears the burden of

proving that he is entitled to relief under Section 2255.

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

As an initial matter, it is difficult for the Court to

determine from the Motion what arguments Mr. Barker is

attempting to raise. The Court agrees with the United States

that Mr. Barker “has failed to provide sufficient case-

specific facts to permit the United States or this Court to

determine the nature of his claims and to fairly respond.”

(Civ. Doc. # 5 at 7); see Walker v. Dugger, 860 F.2d 1010,

1011 (11th Cir. 1988) (“[P]leadings must give an opposing

party fair notice of any claims asserted. . . . [E]ven when

a pro se litigant is involved, it is unreasonable to hold

that a party has been put on fair notice of a claim simply

because the opposing party has cited cases in a supporting

memorandum that involve the claim.”); 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).

For example, Mr. Barker makes a reference to double

jeopardy without every connecting that doctrine to the facts

of his case:

Furthermore, double jeopardy jurisprudence relies

extensively on legislative intent. The fifth

amendment guarantees against double jeopardy

embodies. Simply one aspect of the basic principle

that within our Federal Constitutional framework

the legislative power, including the power to

define criminal offenses and to prescribe the

punishments to be imposed upon those found guilty

of them, resides wholly with the congress.

(Civ. Doc. # 1 at 4). With only this vague paragraph, Mr.

Barker has not even attempted to inform the Court if or how

the double jeopardy bar applies to his case. See Walker, 860

F.2d at 1011; Nunez v. United States, No. 2:17-cr-87-SPC-MRM,

2020 WL 3640541, at *5 (M.D. Fla. July 3, 2020) (“Even if the

Court liberally construes the claim to suggest the Plea

Agreement is unconscionable, Nuñez does not identify how

either the Agreement or any specific clause is

unconscionable. This conclusory assertion fails to meet the

heightened pleading standard in § 2255 motions. Thus, the

Court finds Ground Three is facially insufficient and

otherwise without merit.” (citation omitted)).

Another example, Mr. Barker in one sentence states that

“statements in the PSR does not elevate those statements to

the level of reliability sufficient to give them weight in a

sentencing determination.” (Civ. Doc. # 1 at 3). No further

argument or attempt to connect this statement with an alleged

error in this case is made. Likewise, Mr. Barker elaborates

on one sentencing guideline without any argument or

application to his case: “To qualify [as] relevant conduct

under §1B1.3[,] Conduct must have constituted a criminal

violation that could result in incarceration, either under

Federal or State law. Relevant conduct must also bear some

logical relationship to the offense of conviction.” (Id. at

5). These are not sufficiently raised claims for relief.

Furthermore, to the extent Mr. Barker is trying to raise

claims that (1) his conviction should be vacated because it

violates double jeopardy or (2) he should be resentenced

because the Court improperly relied on statements in the final

presentence report or imposed an illegal sentence, Mr. Barker

failed to raise those claims on direct appeal. Thus, he

defaulted these claims. (Civ. Doc. # 5 at 7).

To avoid the default, Mr. Barker must establish one of

two narrow exceptions. The exceptions to the requirement that

Mr. Barker have raised these arguments on direct appeal are

(1) “cause and actual prejudice” or (2) that he is “actually

innocent.” Bousley v. United States, 523 U.S. 614, 615 (1998).

Mr. Barker has not even attempted to establish either cause

and prejudice or actual innocence.1 And the Court is unaware

1 True, Mr. Barker’s Motion mentions ineffective assistance

of counsel and “[i]neffective assistance of counsel may

satisfy the cause exception to a procedural bar.” United

States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000). But

Mr. Barker has not argued — let alone established — that

counsel was ineffective for failing to file a direct appeal

or raise Mr. Barker’s arguments on direct appeal.

Furthermore, as discussed later, Mr. Barker’s actual, vague

of any facts that could satisfy either exception. The

procedural default, therefore, is not excused and the Motion

is denied as to these claims.

Of course, to the extent Mr. Barker is raising an

ineffective assistance of counsel claim, that claim is

cognizable and not procedurally defaulted.

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.

Barker 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) (citation omitted). In other words, Mr.

Barker 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

arguments of ineffective assistance of counsel fail. For

these reasons, Mr. Barker’s reference to ineffective

assistance of counsel does not establish “cause” for any

procedural default.

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.

Barker 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. In the context

of guilty pleas, “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).

Mr. Barker’s claim of ineffective assistance of counsel

fails because Mr. Barker has not shown that either counsel

was ineffective or that he was prejudiced by counsel’s

conduct. Again, Mr. Barker’s Motion is unclear about what

exactly his complaints against counsel are.

For example, Mr. Barker first notes that “[a] guilty

plea must be known and voluntary.” (Civ. Doc. # 1 at 2). He

goes on to state “[b]ecause such a plea amounts to an

admission of all the elements of the crime charged, it cannot

be truly voluntary unless Mr. Barker possesses an

understanding of the law in relation to the facts. . . . It

is elementary that a plea entered in reliance on Mr. Barker’s

attorney’s patently erroneous statement of the law in

relation to the facts does not meet this standard.” (Id. at

2-3). But Mr. Barker never identifies what “patently

erroneous statement of the law” his counsel supposedly made

to him or what aspect of the law Mr. Barker misunderstood.

This is facially insufficient to establish his ineffective

assistance of counsel claim.2 See United States v. Walker,

No. 3:08CR87/MCR, 2015 WL 4389939, at *6 (N.D. Fla. July 15,

2015) (“To establish ineffective assistance, Defendant must

provide factual support for his contentions regarding

counsel’s performance. Bare, conclusory allegations of

ineffective assistance are insufficient to satisfy the

Strickland test.” (citations omitted)).

2 The transcript of Mr. Barker’s change of plea hearing also

weighs against Mr. Barker’s claim that he was somehow wrongly

advised on the law in a way that induced him to plead guilty.

(Crim. Doc. # 163). Mr. Barker has not met the heavy burden

of showing that his statements 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)).

A bit less ambiguously, Mr. Barker also alleges that his

counsel was ineffective at sentencing because “[c]ounsel

should have objected to the sentence that was imposed.” (Civ.

Doc. # 1 at 4). But, again, Mr. Barker fails to identify what

aspect of his sentence he believes his counsel should have

objected to after the sentence was imposed.

The Court cannot conclude that counsel was ineffective

for failing to raise unspecified arguments or objections —

the merit of which have not been shown. 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. Barker has not established that he was

prejudiced by any such failure by counsel. 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.”).

In short, if the Court had not already dismissed the

Motion as untimely, the Motion would still be denied.

III. Evidentiary Hearing

As the Court readily determined that Mr. Barker’s Motion

was untimely and lacks merit, no evidentiary hearing is

required. 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.”).

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mr. Barker 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. Barker 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. Barker shall be required to pay

the full amount of the appellate filing fee pursuant to

Section 1915(b)(1) and (2).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Anuer Stevens Barker’s pro se 28 U.S.C. § 2255 Motion to

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

Crim. Doc. # 162) is DISMISSED as untimely.

(3) The Clerk is directed to enter judgment accordingly and

to close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

9th day of October, 2024.

hin ye Gr . Hen Cut

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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