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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. 1:88-cr-01026-MP

JOSE ELIAS SEPULVEDA,

Defendant.

___________________________/

O R D E R 

This matter is before the Court on Doc. 3479, Report and Recommendation of the

Magistrate Judge, recommending that the Court deny the following motions: doc. 3336, the

motion under 28 U.S.C. § 2255; doc. 3337, the motion to appoint counsel; and doc. 3366, the

motion for disciplinary actions or sanctions against the prosecutor. Mr. Sepulveda, through

retained counsel, filed objections to only certain of the Magistrate Judge's recommendations. 

The defendant stated that his "specific objections focus on Magistrate Kornblum’s discussion of

what he describes as Defendant’s 'forced choice between right to counsel and right to speedy

trial' and what the Magistrate describes as 'Apprendi and Blakely' issues." Having reviewed the

objections and the record, the Court determines that the Report and Recommendation should be

adopted.

In the 28 U.S.C. § 2255 motion, Mr. Sepulveda brings eleven claims. The Court agrees

with the Magistrate Judge that the Eleventh Circuit expressly addressed and rejected claims

number 1 though 6 and 11. The undersigned will not reconsider them here. With regard to the

seventh claim, the Court agrees with the Magistrate Judge that removing Defendant from the

courtroom during the last six minutes of the government's closing argument was justified and did

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Case No: 1:88-cr-01026-MP

not prejudice the defendant. 

The eighth claim is one of the two specifically raised in the objections to the Report and

Recommendation. In this claim, Petitioner argues that he was forced to choose between his

speedy trial rights or his right to counsel. This argument is misplaced in the context of this case. 

Petitioner failed to prove his indigency and then refused to hire counsel after court-appointed

counsel was denied. It was Petitioner's own stubbornness in providing false information

regarding his assets that put him in this false dilemma. Had he admitted the ownership of the

funds, then his current argument that they would be subject to forfeiture and not able to be used

toward attorney's fees could have been considered. But he instead tried to have his cake and eat

it too. Appellate counsel was not ineffective for failing to raise this meritless argument.

Additionally, with regard to the ninth claim, the Court agrees that nothing in the

transcript or affidavits supplied by Petitioner shows any violation of the witness sequestration

rules. Accordingly, appellate counsel was not ineffective for failing to raise this as an argument

on appeal.

The Court's contempt citations and the sentences based on them, the bases of claim ten,

were properly arrived at and calculated. Accordingly, appellate counsel was not ineffective for

failing to raise any argument based on them. 

The Petitioner's objections also specifically discuss his eleventh claim, based on

Apprendi, Blakely and their progeny. The Petitioner admits that the Eleventh Circuit has

rejected his Apprendi arguments on direct appeal, but comments that "The Eleventh Circuit’s

reasoning sounds suspiciously like the sort of objective 'reasonable jury' test proscribed by

Sullivan [an earlier Supreme Court case], and Defendant urges this court to consider that the jury

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Case No: 1:88-cr-01026-MP

instruction during trial in the instant case to disregard drug amounts is an Apprendi violation of

an order of magnitude beyond being merely harmless." Additionally, the Petitioner also wants

this Court to reconsider the Eleventh Circuit's decisions that Blakely and Booker do not apply

retroactively on collateral review. In other words, Petitioner wants this Court to second guess

the Eleventh Circuit's harmless error analysis in this case and its retroactivity decisions in

general. It is not the province of a federal district court to reconsider the decisions of the circuit

court of appeal. These claims are therefore rejected.

Finally, the undersign concurs with the Magistrate Judge that appointment of counsel is

not justified at this stage, and that nothing in the record and pleadings supports a finding of

improper conduct by the government. Accordingly, the motion for sanctions is not well taken.

In accordance with the above, it is hereby

ORDERED AND ADJUDGED:

The Report and Recommendation of the Magistrate Judge (doc. 3479) is adopted and

incorporated herein. The motion under § 2255 (doc. 3336) is denied in all respects. The

motion for appointment of counsel (doc. 3337) is denied. The motion for disciplinary

action or sanctions (doc. 3366) is denied. 

DONE AND ORDERED this 3rd day of November, 2008

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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