# Waiters v. United States

> District Court, M.D. Florida · October 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11166765

## Case

- **Full name:** Larome Deon Waiters v. United States of America
- **Court:** District Court, M.D. Florida
- **Decided:** October 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LAROME DEON WAITERS,

Petitioner,
v. Case No. 8:25-cv-682-TPB-NHA
Case No. 8:19-cr-452-TPB-NHA
UNITED STATES OF AMERICA,

Respondent.
____________________________________

ORDER DENYING MOTION TO VACATE SENTENCE
Larome Deon Waiters moves under 28 U.S.C. § 2255 to vacate his
convictions and 210-month sentence for possession with intent to distribute
fentanyl and heroin and for possession of firearms and ammunition as a
convicted felon. He claims appellate counsel rendered constitutionally
ineffective assistance. He is entitled to no relief.
I. Background
In August of 2019, law enforcement obtained a search warrant for
Waiters’s apartment to investigate drug-trafficking activities and an arrest
warrant for Waiters for traffic infractions. During the search of Waiters’s
apartment and his arrest, law enforcement recovered drugs, drug
paraphernalia, loaded firearms, and cash. Waiters is a convicted felon who is
prohibited from possessing firearms and ammunition. (Crim. Doc. 120 ¶¶ 19–
28)
A grand jury returned a superseding indictment that charged Waiters
with possession with intent to distribute 40 grams or more of fentanyl and

heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and possession of
firearms and ammunition as a convicted felon, in violation of 18 U.S.C. §
922(g)(1) and 924(e). (Crim. Doc. 45) Because of his prior felony convictions,
Waiters faced an enhanced sentence under the Armed Career Criminal Act

(ACCA). (Id. at 3–4) After a two day trial, a jury found Waiters guilty as
charged. (Crim. Doc. 115)
The U.S. Probation Office determined that Waiters qualified as an armed
career criminal due to his prior Florida convictions for violent felonies and

serious drug offenses that were committed on occasions different from one
another. (Crim. Doc. 120 at ¶¶ 46(a)—(g)) Those predicate convictions include
one conviction for robbery; five convictions for possession of cocaine with intent
to sell or deliver within 1,000 feet of a school, childcare facility, or park; one

conviction for possession with intent to sell or deliver oxycodone within 1,000
feet of a school; and one conviction for sale of cocaine. (Id.) The presentence
report calculated an advisory guidelines range of 262 to 327 months, based on
Waiters’s total offense level of 34 and his criminal history category of VI. (Id.

at ¶ 113)
Counsel objected to Waiters’s enhanced sentence as an armed career
criminal. (Id. at 33–37) He argued that the serious drug offenses were not
qualifying predicate convictions because they “were part of a single course of
conduct that should be considered only one prior offense[,]” “the Indictment did

not allege all of the necessary facts needed to support the enhancement,” and
a jury made no findings that the prior convictions qualified as predicates under
the ACCA. (Id. at 35)
At sentencing, counsel emphasized that although the drug offenses were

committed on separate dates, they were prosecuted in a single case in state
court. (Crim. Doc. 135 at 15–17) The district court overruled the objection
after observing that the state court information charged Waiters with drug
offenses that occurred on different dates and different locations. (Id. at 17)

Counsel also argued that a jury should find the offenses occurred on different
occasions, but the district court overruled the objection based on binding
precedent. (Id. at 18–19) Citing Waiters’s history of a drug abuse and his
youth when he was incarcerated for robbery, the district court varied

downward and sentenced him to 210 months. (Id. at 26–29)
Represented by the same counsel who represented him at trial, Waiters
appealed. Waiters argued that the district court erred by denying his pretrial
motion to dismiss and by sentencing him as an armed career criminal. See

United States v. Waiters, No. 21-12492, Appellant’s Initial Brief, 2022 WL
204594 (11th Cir. Jan. 19, 2022). The circuit court rejected Waiters’s
arguments based on binding precedent and affirmed his convictions and
sentence. United States v. Waiters, No. 21-12492, 2024 WL 2797919 (11th Cir.
May 31, 2024).

Again represented by the same counsel who represented him at trial and
on direct appeal, Waiters filed a petition for writ of certiorari, which the U.S.
Supreme Court denied without an opinion. Waiters v. United States, 145 S. Ct.
396 (2024).

II. Discussion
Waiters now moves to vacate his convictions and sentence and claims
appellate counsel rendered ineffective assistance by (1) not arguing on direct
appeal that his predicate offenses did not occur on different occasions under

Wooden v. United States, 595 U.S. 360 (2022), (2) by not seeking certiorari
review in light of Erlinger v. United States, 602 U.S. 821 (2024). (Civ. Docs. 1,
2, and 9) The United States responds that Waiters’s claims lack merit because,
although both Wooden and Erlinger issued years after Waiters’s appeal,

counsel did, in fact, challenge the ACCA enhancement on the basis that
Waiters’s prior convictions did not occur on different occasions. (Civ. Doc. 7)
Waiters replies that counsel was deficient because counsel failed to consult
with him about, and refused to advance, the specific issues he wished to raise

on direct appeal and in his certiorari petition. (Civ. Doc. 9)
Claims of ineffective appellate counsel are governed by the same
standards applied to trial counsel under Strickland v. Washington, 466 U.S.
668, 684–85 (1984). Dell v. United States, 710 F.3d 1267, 1273 (11th Cir. 2013).
To establish deficient performance, the petitioner must show that, in light of

all the circumstances, counsel’s performance was outside the wide range of
professional competence. Strickland, 466 U.S. at 690.
In the appellate context, “it is difficult to demonstrate that counsel was
incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted).

“[A]ppellate counsel . . . need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to maximize the
likelihood of success on appeal.” Id. Indeed, “[a] brief that raises every
colorable issue runs the risk of burying good arguments . . . in a verbal mound

made up on strong and week contentions.” Jones v. Barnes, 463 U.S. 745, 753
(1983). “[The] process of ‘winnowing out weaker arguments on appeal and
focusing on’ those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy.” Smith v.

Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751–52).
“Generally, only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome.”
Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted). And, “appellate

counsel is not ineffective for failing to raise claims reasonably considered to be
without merit.” Siler v. United States, 852 F. App’x 490, 492 (11th Cir. 2021)
(citing United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)).
A. Ground One
Waiters claims appellate counsel rendered ineffective assistance by not

arguing that his predicate offenses did not occur on different occasions under
Wooden. Wooden explains that the ACCA “contains both a three-offense
requirement and a three-occasion requirement.” 595 U.S. at 368. An
“occasion” is “an event, occurrence, happening, or episode.” Id. at 367. “To

operationalize the different-occasions requirement, the Wooden Court
described a ‘range of circumstances [that] may be relevant to identifying
episodes of criminal activity’—e.g., the offenses’ timing, location, and
character.” United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025) (quoting

Wooden, 595 U.S. at 369). Wooden issued March 7, 2022, while Waiters’s
appeal was pending.1
Waiters’s claim fails because the record shows counsel, in fact,
challenged the ACCA enhancement on this basis both at sentencing and on

appeal. Before sentencing, counsel objected to the enhanced sentence. (Doc.
120 at 33–37) He argued that the serious drug offenses were not qualifying
predicate convictions because they “were part of a single course of conduct that
should be considered only one prior offense[,]” “the Indictment did not allege

1 A judgment was entered against Waiters on July 21, 2021 (Crim. Doc. 123),
and the circuit court affirmed that judgment on May 31, 2024 (Crim. Doc. 140).
all of the necessary facts needed to support the enhancement,” and a jury made
no findings that the prior convictions qualified as predicates under the ACCA.

(Id. at 35)
At sentencing, the district court overruled these objections and found
that Waiters’s predicate offenses “were done at different times and different
occasions, one had been completed before the other one began.” (Crim. Doc.

135 at 16) And, when counsel repeated the objection that “the jury should
make the finding that they were offenses committed on separate occasions,”
the district court overruled the objection, finding that “the law as it states now
is the jury does not have to make that finding.” (Id. at 19)

On direct appeal, counsel repeated these challenges to the ACCA
enhancement. In his initial brief, counsel argued that Waiters’s prior
controlled substance offenses were not serious drug offenses; the robbery
conviction was not a predicate offense because of Waiters’s age at the time of

the offense; the indictment failed to allege all the necessary facts to support
the ACCA enhancement; and “the jury did not make the requisite findings . . .
to qualify any of those prior convictions as ACCA qualifying predicate
convictions.” Waiters, 2022 WL 204594, at *44–47. Counsel later filed a

supplemental brief to argue that Waiters’s controlled substance offenses were
not serious drug offenses based in part on circuit precedent in United States v.
Jackson (Jackson I), 39 F.4th 1294 (11th Cir. 2022), superseded by United
States v. Jackson (Jackson II), 55 F.4th 846 (11th Cir. 2022), aff’d sub nom.
Brown v. United States, 602 U.S. 101 (2024). See United States v. Waiters, No.

21-12492, Appellant’s Supplemental Brief, 2022 WL 3646009 (11th Cir. Aug.
18, 2022).
The circuit court rejected Waiters’s challenges to his enhanced sentence
and affirmed his convictions and sentence. See United States v. Waiters, No.

21-12492, 2024 WL 2797919 (11th Cir. May 31, 2024). Citing binding circuit
precedent, the circuit court affirmed the ACCA enhancement “even though the
predicate convictions were not alleged in the indictment or found by a jury.”
Id. at *6 (citing United States v. Smith, 775 F.3d 1262, 1266 (11th Cir. 2014)).

Waiters shows neither that counsel performed deficiently nor that he
was prejudiced by counsel’s performance because counsel, in fact, advanced
challenges to the ACCA enhancement that Waiters complains counsel should
have advanced. “[The circuit court] has long held that the fact that a particular

defense was unsuccessful does not prove ineffective assistance of counsel.”
Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010); see also Lukehart v. Sec’y,
Fla. Dep’t of Corr., 50 F.4th 32, 47 (11th Cir. 2022) (citing Ward, 592 F.3d at
1164 (“[C]ounsel cannot be adjudged incompetent for performing in a

particular way in a case, as long as the approach taken might be considered
sound trial strategy.”)). The record contradicts Waiters’s claim, and his failure
to identify any challenge to his convictions and sentence that is clearly stronger
than the issues that appellate counsel did pursue is fatal to his claim.

B. Ground Two
Waiters claims that appellate counsel rendered ineffective assistance by
not seeking certiorari review in light of Erlinger. Erlinger, 602 U.S. at 834,
which was decided on June 21, 2024, a few weeks after Waiters’s direct appeal

concluded, holds that the factual finding that the defendant’s predicate
offenses occurred on at least three separate occasions “must be resolved by a
unanimous jury beyond a reasonable doubt (or freely admitted in a guilty
plea).” Waiters argues that because the jury did not find that his predicate

convictions occurred on separate occasions, counsel should have argued that
Erlinger entitles him to relief.2
Waiters’s claim fails because the district court is aware of no binding
precedent that authorizes a claim of ineffective assistance of counsel for the

purpose of filing a certiorari petition in the U.S. Supreme Court. See Allen v.
United States, No. 8:22-cv-728-CEH-AEP, 2024 WL 4905427, at *3 (M.D. Fla.
Nov. 27, 2024) (listing district court cases within the Eleventh Circuit that
have held that “defendants cannot raise a constitutional violation based on

2 The United States summarizes the arguments that counsel advanced in the
certiorari petition but neglects to file the petition as an attachment to its
response. (Civ. Doc. 7 at 4)
purported deficient performance [at the certiorari stage] because there is no
constitutional right to counsel on discretionary review”); Adams v. United

States, No. 5:20-cv-8008, 2022 WL 17722384, at *5 (N.D. Ala. Dec. 15, 2022)
(rejecting petitioner’s ineffective assistance claim because he “lacked a
constitutional right to counsel at the certiorari stage”); Pierce v. United States,
No. 3:16cv989, 2020 WL 4229329, at *12 (M.D. Ala. Feb. 27, 2020) (listing cases

for the proposition that “because there is no constitutional right to counsel to
pursue discretionary review in the Supreme Court, there can be no claim that
appellate counsel’s performance was ineffective”); see also Tendrich v. United
States, 828 F. App’x 693, 694 (11th Cir. 2020) (declining to consider the United

States’s argument that an ineffectiveness claim fails because no constitutional
right to counsel exists at the certiorari stage); Steele v. United States, 518 F.3d
986, 988 (8th Cir. 2008) (“Due process does not . . . guarantee a constitutional
right to counsel for a litigant seeking to file a certiorari petition in the United

States Supreme Court.”).
Alternatively, Waiters’s claim fails because Erlinger affords him no
relief. Erlinger provides no basis for Waiters to challenge his ACCA sentencing
enhancement because Erlinger set forth a new rule of criminal procedure,

which the U.S. Supreme Court has not made it retroactively applicable to cases
on collateral review. See Erlinger, 602 U.S. at 859, n.3 (Kavanaugh, J.,
dissenting) (“For any case that is already final, the Teague rule will
presumably bar the defendant from raising today’s new rule in collateral
proceedings.”) (citing Teague v. Lane, 489 U.S. 288, 310 (1989)); see also Grant

v. United States, No. 8:24-cv-2029, 2024 WL 4729193, at *3 (M.D. Fla. Nov. 8,
2024) (“Here, the Teague inquiry easily leads to the conclusion that Erlinger
announced a new rule of criminal procedure that is not retroactive.”)
(quotations omitted). Waiters cites no case—and the district court has found

none—that holds that any right recognized in Erlinger is retroactively
applicable on collateral review.3 See Cuyler v. United States, No. CR120-036,
2025 WL 1136295, at *6 (S.D. Ga. Mar. 21, 2025) (listing district court cases
within the Eleventh Circuit that have found Erlinger does not apply

retroactively); see also In re Jenkins, No. 24-12338, 2024 U.S. App. LEXIS
18562, at *6 (11th Cir. July 26, 2024) (denying petitioner’s application for leave
to file a second or successive § 2255 motion because “the Supreme Court itself
did not expressly hold that Erlinger applies retroactively on collateral review”).

3 Waiters himself acknowledges that “Erlinger was not deemed retroactive to
cases on collateral review.” (Civ. Doc. 2 at 9)
III. Conclusion
Waiters’s motion under § 2255 to vacate, set aside, or correct his sentence

(Civ. Doc. 1) is DENIED. The clerk is directed to enter a judgment against
Waiters, terminate any pending motions, close this case, and enter a copy of
this order in the criminal case.
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS

Waiters is not entitled to a certificate of appealability (“COA”). A
prisoner moving under § 2255 has no absolute entitlement to appeal a district
court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a COA. Section 2253(c)(2) permits issuing a COA “only
if the applicant has made a substantial showing of the denial of a constitutional

right.” To merit a certificate of appealability, Waiters must show that
reasonable jurists would find debatable both (1) the merits of the underlying
claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan,

279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable
jurists would debate either the merits of the claims or the procedural issues,
Waiters is entitled to neither a certificate of appealability nor an appeal in
forma pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Waiters must obtain permission from the circuit court
to appeal in forma pauperis.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th day
of October, 2025.

TOM BARBER
U.S. DISTRICT JUDGE

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11166765. Public record. Not legal advice.