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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:02-cr-29-MP-GRJ

RAYMOND REED JR,

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 205, a motion to vacate pursuant to 28

U.S.C. § 2255. Defendant contends that his trial counsel rendered ineffective

assistance in regards to a motion to suppress that was denied by the court. The

Government filed a response and Defendant filed a reply. (Docs. 208, 213.) For the

following reasons, the undersigned recommends that the motion to vacate be denied.

Background

In July 2002, helicopter surveillance identified marijuana growing near a mobile

home in Levy County. Sheriff’s deputies and Drug Enforcement Administration (DEA)

agents arrived at the mobile home and knocked on the door. They smelled marijuana

emanating from a window air conditioner and heard someone running inside the home. 

Officers entered through an unlocked back door and found co-Defendant Sheila Gillins

hiding in a closet. She was advised of her Miranda rights and consented to a search of

her home, which she owned with the Defendant. The search yielded 255 marijuana

plants, scales, grow lights, a drying room, and processed marijuana. (Doc. 38.) 

Defendant and Gillins were indicted on one count of conspiracy to distribute and

possess with intent to distribute more than 100 marijuana plants and one count of

distribution and possession with intent to distribute a controlled substance, in violation

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of in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846. The Defendants

each filed a motion to suppress, challenging the warrantless entry. (Docs. 28, 32.) 

After an evidentiary hearing, the district court denied the motions to suppress, finding

that warrantless entry was lawful because the officers had probable cause to approach

the home to announce their presence and exigent circumstances permitted entry. 

Specifically, DEA Agent Andrews heard the co-Defendant moving inside the trailer “and

became concerned for his personal safety, the safety of the other agents, and the

potential destruction of any evidence inside the residence.” The district court also

concluded that co-Defendant Gillins’ voluntary consent to the search validated the

subsequent search of the home and an automobile on the property. (Doc. 38.) 

Defendant pleaded guilty to the conspiracy count on November 26, 2002 and

then absconded from the jurisdiction for approximately four years. Defendant was

eventually arrested and sentenced to 60 months imprisonment on the conspiracy count. 

The second count of the indictment was dismissed on motion of the Government. (Doc.

146.) Defendant unsuccessfully appealed his conviction and the order denying

suppression to the Eleventh Circuit. (Doc. 199.)

Ineffective Assistance of Counsel

Because Defendant raises the issue of counsel’s effectiveness, a review of

Strickland v. Washington, 466 U.S. 668 (1984), is appropriate. To prevail on a

constitutional claim of ineffective assistance of counsel, a defendant must demonstrate

(1) that his counsel’s performance was below an objective and reasonable professional

norm, and (2) that he was prejudiced by this inadequacy. Strickland, 466 U.S. at 686. 

The court may dispose of the claim if a defendant fails to carry his burden of proof on

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either the performance or the prejudice prong. Id. at 697. The court need not address

the adequacy of counsel’s performance when a defendant fails to make a sufficient

showing of prejudice. Id.; Tafero v. Wainright, 796 F.2d 1314, 1319 (11 Cir. 1986). th

With regard to the performance prong of Strickland, a defendant must provide

factual support for his contentions that counsel’s performance was constitutionally

deficient. Smith v. White, 815 F.2d 1401, 1406-07 (11 Cir. 1987). The court must th

consider counsel’s performance in light of all of the circumstances at that time and

indulge in a strong presumption that counsel’s conduct fell within the wide range of

reasonably professional assistance. Strickland, 466 U.S. at 689-90. To show counsel’s

performance was unreasonable, a defendant must establish that “no competent

counsel would have taken the action that his counsel did take.” Grayson v. Thompson,

257 F.3d 1194, 1216 (11 Cir. 2001) (emphasis omitted). th

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

“reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability is defined

as a probability sufficient to undermine confidence in the outcome.” Id. 

Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can properly

prevail . . . are few and far between.” Chandler, 218 F.3d at 1313 (11 Cir. 2000). th

Discussion

In Defendant’s motion to vacate and reply, he primarily attempts to reargue his

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motion to suppress but also makes allegations of ineffective assistance of trial counsel

as well as “government misconduct.” Trial counsel’s alleged ineffectiveness relates to

his performance in connection with the motion to suppress. In his motion, Defendant

argues that trial counsel failed to assert at the evidentiary hearing that Agent Andrews

perjured himself; that prosecutors knowingly relied on these fabricated statements to

obtain a conviction; and trial counsel failed to “object to the government misstating the

burden of proof during the suppression hearing.” Defendant fails to elaborate on the

alleged misstatement of the burden of proof. He alleges that Agent Andrews lied under

oath by (1) stating that the backdoor was unlocked; and (2) stating that he knocked on

the front door. (Doc. 205.) In his reply, Defendant alleges that trial counsel should

have further developed his line of questioning of the officers. (Doc. 213.) 

To the extent Defendant is attempting to relitigate his motion to suppress, the

Court cannot reach the merits of this Fourth Amendment claim because Defendant had

a full and fair opportunity to litigate it before this court and his attorney was not

ineffective in litigating it (see below). See United States v. Ishmael, 343 F.3d 741, 742-

43 (5 Cir. 2003), cert. denied, 540 U.S. 1204 (2004) (applying Stone v. Powell, 428

th

U.S. 465 (1976) to a § 2255 motion). Furthermore, because the court disposed of

Defendant’s Fourth Amendment claims on direct appeal, they may not be relitigated on

collateral review. See Mills v. United States, 36 F.3d 1052, 1056 (11 Cir. 1994). th

As for Defendant’s claims regarding ineffective assistance and government

misconduct due to allegedly false statements by Agent Andrews, the record clearly

refutes Defendant’s version of the facts. Defendant would have the Court believe that

Deputy Rogers testified that Agent Andrews entered the back door using a key while

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Agent Andrews testified that he entered through an unlocked back door. (Doc. 205.) 

The transcript of the evidentiary hearing reveals that Deputy Rogers testified more than

once that he did not know how Agent Andrews entered the back door. (Doc. 142, pp.

25, 52.) Agent Andrews testified that he did indeed see a set of keys in the automobile

and attempt to use them to gain entry to the home. While a key fit in the deadbolt of

the back door, it was the wrong key, but in attempting to open the door with the key,

Agent Andrews discovered the door was unlocked. (Id. at 73.) In addition to exposing

Defendant’s unsupported accusations of perjury, the transcript also demonstrates no

evidence that Agent Andrews did not knock on the door or that trial counsel failed to

adequately question witnesses. (Id.)

Defendant has failed to demonstrate that counsel’s performance was deficient.

Even if Defendat’s accusations were true, he could not establish that the motion to

suppress would have been granted but for trial counsel’s actions. The factors

supporting exigent circumstances–a marijuana field burning nearby, marijuana odor

emanating from the home, and the sound of someone running inside the home–are

unrelated to any of Defendant’s fanciful accusations. The record clearly refutes

Defendant’s allegations and his motion is due to be denied without an evidentiary

hearing. See 28 U.S.C. § 2255(b) (denying the need for an evidentiary hearing where

the record conclusively shows Defendant is not entitled to relief).

Recommendation

In light of the foregoing, it is respectfully RECOMMENDED:

That the motion to vacate, Doc. 205, be DENIED and that a certificate of

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appealability be DENIED. 

IN CHAMBERS this 8 day of March 2012. 

th

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of this report

and recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of proposed

factual findings and recommendations.

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