Allen v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARQUESE JERRODDA ALLEN,

v. Case No. 8:18-cr-526-VMC-TGW

8:22-cv-909-VMC-NHA

UNITED STATES OF AMERICA.

_______________________________/

ORDER

This matter is before the Court on Marquese Jerrodda

Allen’s pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside,

or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 124), filed

on April 19, 2022. The United States of America responded on

August 1, 2022. (Civ. Doc. # 10). Mr. Allen filed a motion to

amend and supplement his Motion on August 5, 2022. (Civ. Doc.

# 11), and the United States filed two responses to the

supplement on August 22, 2022, and August 11, 2023. (Civ.

Doc. ## 13, 18). For the reasons that follow, the Motion is

denied.

I. Background

On November 21, 2019, a grand jury returned a superseding

indictment charging Mr. Allen with one count of possession of

a firearm and ammunition by a convicted felon. (Crim. Doc. #

68). Following a bench trial on December 2, 2019, in which

the parties stipulated to the facts, the Court found Mr. Allen

guilty. (Crim. Doc. # 79).

As stipulated by the parties, “[o]n July 14, 2018, a

woman phoned authorities stating that a man had just pulled

a silver-and-black pistol on her and threatened her life.”

(Crim. Doc. # 72 at 1). Police officers responded to the motel

where this had taken place and arrested Mr. Allen. (Id. at 1-

2). Then, a maid entered Mr. Allen’s room and “found a silver

and black pistol and alerted an officer, who was standing

inside the room.” (Id. at 2). While this was occurring, Mr.

Allen was handcuffed in the back of a police car, and “made

a spontaneous statement: He denied ever pointing his gun at

the victim, but admitted to moving his gun while speaking

with the victim in his room.” (Id.) Finally, “[a]t the time

that the defendant possessed the above-noted firearm and

ammunition on July 19, 2018, he knew that he was a convicted

felon.” (Id. at 3).

Prior to trial, Mr. Allen’s counsel, Bryant Scriven,

filed a motion to suppress the evidence obtained from the

government’s search of the motel room. (Crim. Doc. # 39). In

the motion, Mr. Allen argued that the police officer who

accompanied the maid into the motel room, Officer Corinna

Branley, violated his Fourth Amendment rights by doing so

because he had a “reasonable expectation of privacy” in the

room and Officer Branley entered without a warrant or exigent

circumstances. (Id. at 5). Mr. Allen also argued that the

maid’s search of his bag that contained the firearm was a

violation of his Fourth Amendment rights. (Id. at 9-10).

In an affidavit attached to the government’s response to

this Motion, Mr. Scriven avers that he had “lengthy

discussions” with Mr. Allen regarding the suppression hearing

and “discussed how the maid could possibly add value to our

case or undermine it.” (Civ. Doc. # 10-1 at 3). He claims

further that “[m]y office as well as the public defender’s

office (prior to my appointment), attempted to locate this

witness to speak with her but was unsuccessful.” (Id.). As

such, Mr. Scriven notes that he “explained to Mr. Allen that

the information we had about the maid’s involvement, (through

deposition of Ofc. Branley), was neutral to our position and

he agreed to proceed with the [suppression] hearing.” (Id.).

On August 27, 2019, Magistrate Judge Thomas G. Wilson

held an evidentiary hearing on the suppression motion. (Crim.

Doc. # 117). Officer Branley testified that she interacted

with the maid as the maid was about to enter Mr. Allen’s motel

room to clean the room and remove his items (Id. at 62:16-

63:7). She testified that the maid “was nervous” and that she

offered to accompany the maid into the room, to which the

maid said “yes, I would like you stand in the room.” (Id. at

63:1-7). Officer Branley testified that she did not search

anything while in the room, nor did she tell the maid to

search for anything. (Id. at 66:8-67:12). She then described

how she observed the maid go into his bag, locate the gun,

and then alert her about the gun. (Id. at 67:21-68:8). Officer

Branley then told the maid “not to touch it, and then [she]

called for a crime scene technician to come and take a picture

of the gun and process it.” (Id. at 68:4-13).

On October 7, 2019, Magistrate Judge Wilson issued a

report and recommendation recommending that the motion to

suppress be denied. (Crim Doc. # 59). Magistrate Judge Wilson

found that the motel owner’s decision to evict Mr. Allen from

the motel following his arrest terminated whatever reasonable

expectation of privacy Mr. Allen possessed as to the room.

(Id. at 12-13). Magistrate Judge Wilson also determined that

the maid was not acting as a government agent when she found

the firearm so that the seizure of the firearm was not a

Fourth Amendment violation. (Id. at 20). Mr. Allen filed an

objection to the report and recommendation. (Crim. Doc. #

63). This Court overruled the objection, and accepted and

adopted the report and recommendation on November 7, 2019.

(Crim. Doc. # 65).

After Mr. Allen was found guilty, a Presentence

Investigation Report was created. (Crim. Doc. # 88). In the

report, Mr. Allen received a four-level enhancement because

he possessed the firearm in connection with another offense

— the aggravated assault of the victim. (Id. at 6). The report

additionally concluded that Mr. Allen qualified as an armed

career criminal and was subject to an enhanced sentence under

the provisions of 18 U.S.C. § 924(e) because he had at least

three prior convictions for a violent felony or serious drug

offense. (Id.). The report identified four such offenses:

Sale of Cocaine on December 20, 1994; Sale of Cocaine on

September 11, 1998; Sale of Cocaine on September 22, 2004;

and Sale or Delivery of Cocaine (two counts) on February 4,

2013. (Id. at 6-7). Mr. Allen objected to both the enhancement

and the ACCA designation. (Id. at 34-36). As to the ACCA

designation, Mr. Allen argued that a then-upcoming decision

in Shular v. United States, 589 U.S. 154 (2020), could impact

whether the sale or possession of controlled substances could

serve as predicate offenses under ACCA. (Id. at 46).

By the time of sentencing, the Supreme Court had issued

its decision in Shular, and Mr. Scriven acknowledged that Mr.

Allen’s prior drug offenses still qualified as predicate

offenses under ACCA after Shular. (Crim. Doc. # 155 at 6:10-

15). Yet, Mr. Allen still maintained his objection to the

ACCA designation, as well as to the four-level enhancement.

(Id. at 5:24-6:15). The Court overruled both objections. (Id.

at 44:21-45:9). The Court sentenced Mr. Allen to 200 months

of incarceration. (Crim. Doc. # 104).

Mr. Allen appealed his conviction, arguing that the

Court erred in denying his suppression motion. (Crim. Doc. #

122). The Eleventh Circuit Court of Appeals affirmed his

conviction, holding that Mr. Allen lacked a reasonable

expectation of privacy in the motel room, and that the maid

was not acting as a government agent. (Id. at 9, 11).

On April 19, 2022, Mr. Allen filed his pro se 28 U.S.C.

§ 2255 Motion to Vacate, Set Aside, or Correct Sentence (Civ.

Doc. # 1; Crim. Doc. # 124). The government responded on

August 1, 2022. (Civ. Doc. # 10). On August 5, 2022, Mr. Allen

filed a motion to amend and supplement his 2255 Motion. (Civ.

Doc. # 11). The government responded to the motion to amend

and supplement on August 22, 2022, requesting that the Court

hold Mr. Allen’s 2255 Motion in abeyance pending the Eleventh

Circuit’s decision in United States v. Jackson, 55 F.4th 846

(11th Cir. 2022). (Civ. Doc. # 13). On December 27, 2022, Mr.

Allen filed a motion to hold his 2255 Motion in abeyance,

pending the Eleventh Circuit’s decision in Jackson. (Civ.

Doc. # 14). On February 27, 2023, the government filed a

status report, indicating that the Eleventh Circuit had

issued its decision in Jackson. (Civ. Doc. # 15). On June 29,

2023, the Court ordered Mr. Allen to file an amended motion

addressing the effect of Jackson on his underlying conviction

within thirty days. (Civ. Doc. # 16). Mr. Allen never filed

an amended motion, but the government, after Mr. Allen’s

filing deadline had passed, filed a supplemental response

addressing the effect of Jackson on Mr. Allen’s underlying

conviction. (Civ. Doc. # 18). Accordingly, the Motion is now

ripe for review.

II. Legal Standard

Mr. Allen bears the burden of proving that he is entitled

to relief under Section 2255. See LeCroy v. United States,

739 F.3d 1297, 1321 (11th Cir. 2014) (“[O]n a § 2255 petition,

[the burden of proof] belongs to the petitioner.”). “Under

the procedural default rule, a defendant generally must

advance an available challenge to a criminal conviction or

sentence on direct appeal or else the defendant is barred

from presenting that claim in a § 2255 proceeding.” Lynn v.

United States, 365 F.3d 1225, 1234-35 (11th Cir. 2004). A

petitioner “can avoid a procedural bar only by establishing

one of the two exceptions to the procedural default rule.

Under the first exception, a defendant must show cause for

not raising the claim of error on direct appeal and actual

prejudice from the alleged error.” Id. “Under the second

exception, a court may allow a defendant to proceed with a §

2255 motion despite his failure to show cause for procedural

default if a constitutional violation has probably resulted

in the conviction of one who is actually innocent.” Id.

(internal quotations and citations omitted). However,

“failure to raise an ineffective-assistance-of-counsel claim

on direct appeal does not bar the claim from being brought in

a later, appropriate proceeding under § 2255.” Massaro v.

United States, 538 U.S. 500, 509 (2003).

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.

Allen 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) (internal citations and quotations omitted).

In other words, Mr. Allen 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.

Allen 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.

“[C]ounsel 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. (internal quotation and citation omitted).

Additionally, “[i]n cases where the files and records

make manifest the lack of merit of a Section 2255 claim, the

trial court is not required to hold an evidentiary hearing.”

United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir.

1984).

III. Analysis

Mr. Allen organizes his claims into four grounds. (Civ.

Doc. # 1). These grounds are: his counsel was ineffective in

his challenge of Mr. Allen’s ACCA designation (Ground 1); his

counsel was ineffective for failing to subpoena and call as

a witness the maid from the motel (Ground 2); his due process

rights were violated because Officer Branley committed

perjury in her testimony (Ground 3); and that the cumulative

errors by his counsel denied Mr. Allen’s right to a fair trial

(Ground 4). (Id.). The Court analyzes each of these grounds

in turn.

A. Ground 1

Mr. Allen claims that his counsel was ineffective for

failing to challenge his ACCA designation on the basis that

the government failed to identify which three prior felonies

the government was basing the designation upon, and had

counsel forced the government to do so, he then could have

proven that the ACCA enhancement should not apply. (Id. at 4-

8). The government responds that the ACCA designation was

properly applied to Mr. Allen, such that his counsel could

not have been ineffective for failing to raise a meritless

argument. (Civ. Doc. # 10 at 11-12). The Court agrees with

the government that this claim is meritless.

Under 18 U.S.C. § 924(e)(1), an individual is an armed

career criminal if he “violates § 922(g) of this title and

has three previous convictions by any court referred to in §

922(g)(1) of this title for a violent felony or a serious

drug offense.” A “serious drug offense” is “an offense under

State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a

controlled substance . . . , for which a maximum term of

imprisonment of ten years or more is prescribed by law.” 18

U.S.C. § 924(e)(2)(A)(ii).

Mr. Allen was found guilty of § 922(g)(1). (Crim. Doc.

# 79). The report identified four prior offenses which applied

as serious drug offenses under § 924(e)(1): Sale of Cocaine

on December 20, 1994; Sale of Cocaine on September 11, 1998;

Sale of Cocaine on September 22, 2004; and Sale or Delivery

of Cocaine (two counts) on February 4, 2013. (Crim. Doc. # 88

at 6-7). Thus, the ACCA designation was properly applied to

Mr. Allen.

The Eleventh Circuit’s decision in United States v.

Jackson, 55 F.4th 846 (11th Cir. 2022), aff’d sub nom. Brown

v. United States, 602 U.S. 101 (2024), does not alter this

conclusion. Jackson held that courts should “read ACCA’s

definition of a ‘serious drug offense’ under state law to

incorporate the version of the federal controlled-substances

schedules in effect when Jackson was convicted of his prior

state drug offenses.” 55 F.4th at 855. Ioflupane, a cocaine

derivate, was removed from the federal drug schedule in 2015.

See Schedules of Controlled Substances: Removal of Ioflupane

from Schedule II of the Controlled Substances Act, 80 Fed.

Reg. 54,715 (Sept. 11, 2015). Mr. Allen’s predicate drug

offenses for cocaine occurred in 1994, 1998, 2004, and 2013.

(Crim. Doc. # 88 at 6-7). Because each of these offenses

occurred before the 2015 removal of ioflupane from the federal

drug schedule and the Court must apply the “federal controlled

substances schedules in effect” at the time of the offenses,

each conviction qualifies as a serious drug offense. Jackson,

55 F.4th at 855.

Although neither party has raised this issue, the Court

finds it necessary to address the Supreme Court’s recent

decision in Erlinger v. United States, 602 U.S. 821 (2024).

Erlinger held that the question of whether predicate offenses

occurred on separate occasions is a question of fact that

must be determined by a unanimous jury beyond a reasonable

doubt. 602 U.S. at 834–35. However, this Court and other

courts in this District have held that Erlinger does not apply

retroactively in Section 2255 proceedings. Stackhouse v.

United States, 8:18-cv-772-VMC-TGW, 2024 WL 5047342, at *7

(M.D. Fla. Dec. 9, 2024); Grant v. United States, No. 8:24-

cv-2029-WFJ-CPT, 2024 WL 4729193, at *4 (M.D. Fla. Nov. 8,

2024). Therefore, Erlinger does not affect the Court’s

conclusion that the ACCA designation was properly applied to

Mr. Allen.

Mr. Allen also claims that the government needed to

explicitly identify which three of the four prior convictions

it was relying upon to apply the ACCA designation. He cites

no precedent to support this claim. Mr. Allen’s counsel could

not have been ineffective for failing to raise an unsupported

legal argument. See Rambaran v. Sec’y, Dep’t of Corr., 821

F.3d 1325, 1334 (11th Cir. 2016) (“[R]easonably effective

representation cannot and does not include a requirement to

make arguments based on predictions of how the law may

develop.” (internal quotations omitted)); Brownlee, 306 F.3d

at 1060 (“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.” (internal quotation and

citation omitted)).

Therefore, this claim fails.

B. Ground Two

Mr. Allen next argues that his counsel was ineffective

for failing to subpoena the maid from the hotel for the

suppression hearing. (Civ. Doc. # 1 at 9-15). The government

responds that counsel was not deficient for failing to

subpoena the maid, and that even if his counsel was deficient,

Mr. Allen cannot establish prejudice because the maid’s

testimony would not have changed the result of the suppression

hearing. The Court agrees with each of the government’s

arguments.

Mr. Scriven’s decision not to subpoena and call the hotel

maid as a witness for the suppression hearing was reasonable.

Mr. Scriven explained his rationale for not calling the maid

to Mr. Allen and obtained his agreement to not call the maid.

See (Doc. # 10-1 at 3) (“I explained to Mr. Allen that the

information we had about the maid’s involvement . . . was

neutral to our position and he agreed to proceed with the

hearing on the Motion to Suppress without her.”). Thus, Mr.

Scriven’s decision not to call the maid as a witness was

strategic, as he could not locate the witness and had

concluded that her testimony would have been “neutral” to the

success of the motion to suppress. Id. Given this well-

reasoned determination, the Court finds that Mr. Scriven’s

decision not to call the maid, which Mr. Allen agreed to, did

not constitute deficient performance. See Conklin v.

Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004) (“Which

witnesses, if any, to call, and when to call them, is the

epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess.”); Brownlee, 306 F.3d at 1060

(“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.” (internal quotation and

citation omitted)).

Even if Mr. Allen could establish that Mr. Scriven

performed deficiently by failing to call the maid, he suffered

no prejudice from this failure. See Strickland, 466 U.S. at

687 (requiring petitioners to establish both deficient

performance and prejudice to prove a claim of ineffective

assistance of counsel). Magistrate Judge Wilson held that

“[a]ny reasonable expectation of privacy the defendant had in

room 118 was eliminated when the motel owner evicted the

defendant for threatening a motel guest with a gun.” (Crim.

Doc. # 59 at 13). Accordingly, Magistrate Judge Wilson

concluded that Mr. Allen “did not have standing to complain

about Officer Branley’s entry into the hotel room.” (Id. at

17). The Eleventh Circuit agreed with this conclusion on

appeal. (Crim. Doc. # 122 at 9). Therefore, regardless of the

maid’s testimony, Mr. Allen still would have lacked standing

to assert his claim for suppression.

Having failed to establish both deficient performance

and prejudice by his counsel, this claim fails.

C. Ground Three

Mr. Allen claims that Officer Branley committed perjury

in her testimony at the suppression hearing, such that his

due process rights were violated. (Civ. Doc # 1 at 16-20).

The government responds that this claim is procedurally

defaulted because Mr. Allen failed to raise this claim in his

direct appeal. (Civ. Doc. # 10 at 6-9). The Court agrees.

Mr. Allen did not raise this claim in his direct appeal.

See United States v. Allen, 20-12484, at Doc. # 15 (11th Cir.

October 15, 2020). Accordingly, he has procedurally defaulted

on this claim. See Lynn, 365 F.3d at 1234-35 (“[A] defendant

generally must advance an available challenge to a criminal

conviction or sentence on direct appeal or else the defendant

is barred from presenting that claim in a § 2255

proceeding.”). Mr. Allen must then satisfy one of the two

exceptions to the procedural default rule: he “must show cause

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

prejudice from the alleged error”; or he must show that “a

constitutional violation has probably resulted in the

conviction of one who is actually innocent.” (Id.).

Mr. Allen claims that he failed to raise this claim in

his direct appeal because his counsel, despite having been

provided with the alleged facts demonstrating Officer

Branley’s perjury, “disregarded” those facts. (Civ. Doc. # 1

at 16). Mr. Allen “can establish cause by showing that a

procedural default was caused by constitutionally ineffective

assistance of counsel under Strickland.” Fortenberry v.

Haley, 297 F.3d 1213, 1222 (11th Cir. 2002).

However, Mr. Allen has not established a valid claim of

ineffective assistance of counsel. In his report and

recommendation, Magistrate Judge Wilson held that he “fully

credit[ed] the testimony of Officer Branley. Her testimony

was unequivocal and forthright. There was nothing about

Officer Branley’s demeanor or responses that suggested

deception.” (Crim. Doc. # 59 at 9). On appeal, Magistrate

Judge Wilson’s credibility determination would be entitled to

deference. See United States v. Ramirez-Chilel, 289 F.3d 744,

749 (11th Cir. 2002) (“Credibility determinations are

typically the province of the fact finder because the fact

finder personally observes the testimony and is thus in a

better position than a reviewing court to assess the

credibility of witnesses.”). Thus, even if Mr. Allen had

raised this argument in his direct appeal, the argument likely

would have failed. Mr. Allen’s counsel was not ineffective

for having failed to raise the argument on appeal.

Accordingly, there was no cause for Mr. Allen’s failure to

raise these arguments on appeal. See Lynn, 365 F.3d at 1234-

35 (requiring both cause and prejudice to excuse a procedural

default).

Mr. Allen also cannot meet the second possible exception

to a procedural default that a “constitutional violation has

probably resulted in the conviction of one who is actually

innocent.” Id. “[A]ctual innocence means factual innocence,

not mere legal insufficiency.” Bousley v. United States, 523

U.S. 614, 623 (1998). Mr. Allen stipulated to possessing a

firearm and ammunition and to knowing that he was a convicted

felon. (Crim. Doc. # 72 at 3). Thus, the Court does not find

any evidence of actual innocence in the record. Accordingly,

Mr. Allen cannot establish the second exception for his

procedural default.

Having failed to establish both exceptions for his

procedural default, the Court denies this claim as

procedurally defaulted.

D. Ground Four

Mr. Allen claims that the cumulative errors of his

counsel justify a vacatur of his conviction. (Civ. Doc. # 1

at 20-22). The Court disagrees.

As analyzed above, Mr. Allen has failed to establish any

errors by his counsel. Therefore, there can be no cumulative

error. See United States v. Lozano, 711 F. App’x 934, 941

(11th Cir. 2017) (“[Defendant] cannot show cumulative error

denied him a fundamentally fair trial because . . . he has

not shown an individual error occurred.”). This claim fails.

IV. Evidentiary Hearing

As the Court has readily concluded that the Motion lacks

merit, the Court declines to hold an evidentiary hearing on

Mr. Allen’s 2255 Motion. See Lagrone, 727 F.2d at 1038

(holding that courts need not hold evidentiary hearings in §

2255 actions when the lack of merit is “manifest”).

V. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mr. Allen 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. Allen 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. Allen 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) Marquese Jerrodda Allen’s pro se 28 U.S.C. § 2255 Motion

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

1; Crim. Doc. # 124) is DENIED.

(2) Mr. Allen’s Motion for Issuance of a Show Cause Order

(Civ. Doc. # 21) is DENIED as moot.

(3) The Clerk is directed to enter judgment for the United

States of America and to close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this 10th

day of March, 2025.

fags 9p. Muneby (noi¥

VIR! IA M. HERNANDEZ"’COVINGTON

UNITED STATES DISTRICT JUDGE

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