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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 4:02-cr-00036-SPM-AK

JASEN ALLEN BADIA,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 83, Motion to Vacate, by Jasen Allen Badia. The

Government has filed its reply, Doc. 101, and Defendant has filed a reply. Doc. 107. The Court

conducted an evidentiary hearing in this cause on October 16, 2007, and having now received a

transcript of those proceedings, the Court is prepared to proceed to the merits of Defendant’s

claims. Having carefully considered the matter, the Court recommends that the motion to vacate

be denied.

BACKGROUND

Defendant was indicted for conspiracy to distribute and to possess with intent to

distribute more than five hundred (500) grams of a mixture containing cocaine and for

possession with intent to distribute more than five hundred (500) grams of a mixture containing

cocaine. Doc. 9. Before trial, the Government filed an Information and Notice of Intent

advising Defendant that it intended to seek enhanced penalties at sentencing based on the fact

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that at the time of the instant offense, Defendant was on probation from Louisiana for attempted

possession with intent to distribute approximately 50 pounds of marijuana. Doc. 20. The

Government also sought to use the Louisiana conviction as Fed. R. Evid. 404(b) evidence. Doc.

17. The Court denied the motion. Doc. 33. The Government later renewed the motion, which

was again denied. Docs. 38 & Oral Order (Oct. 17, 2002). 

At trial, Defendant was represented by retained counsel, Paul D. Srygley. The facts at

trial established the following:

On May 6, 2002, Federal Express received a package for shipment at a location near the

Houston Airport which was addressed to “Terrence Copeland” in Tallahassee, Florida,. Doc. 79. 

Later that same day, Defendant flew from Houston to Tallahassee. Id.

On May 7, 2002, the Tallahassee Police Department intercepted a package, and in

cooperation with police, FedEx withheld the package for an insufficient address. Id. After

obtaining a warrant, the police opened the package and found a brick of cocaine wrapped in

several layers of plastic inside the shell of a metal computer box. Id.

The police then began surveillance on the apartment delivery address. Id. Terrance

Montford had been living at the subject apartment for a short time, but Defendant also had

access to it. Id. Defendant was at the apartment on May 7, and was observed leaving it at

approximately 12:30 p.m. Id. At 1:20 p.m., a person claiming to be the shipper called FedEx

seeking information about the package and leaving a contact telephone number. Id. Shortly

thereafter, Defendant, who was driving, and Montford arrived at the FedEx facility, and

Montford, who had the tracking number, went inside the building to retrieve the package. Id. In

picking up the package, Montford stuck his fingers through an air hole in the package, and his

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fingerprints were found on the computer shell holding the cocaine. Id. As Montford attempted

to put the package in the car, both he and Defendant were arrested. Id.

At the time of his arrest, Defendant had in his possession the cell phone which had been

used to call FedEx about the package and had been identified to FedEx as the contact number. 

Id. This same phone was used to call “Thyron,” identified by police “[f]rom narcotics work,”

immediately after the call to FedEx was made. Id.; see also Doc. 59 at 77-78. Defense counsel

did not initially object to the officer’s testimony, but, outside the presence of the jury, the Court

admonished the officer that“no other references to other individuals involved in narcotics be

brought into this trial against this defendant.” Doc. 59 at 79. After a recess, counsel advised the

Court that he thought the officer’s remark was “prejudicial” and requested that it be stricken and

a cautionary instruction be given. Id. at 80. Though counsel was directed to draft a cautionary

instruction, he did not submit one for the Court’s consideration. Doc. 40.

Defendant was found guilty on both counts. Doc. 41. Subsequently, counsel moved for

judgment of acquittal or new trial based in part on the officer’s testimony regarding “Thyron,”

who Mr. Syrgley described as a “well known drug dealer in the Tallahassee area.” Doc. 46. 

According to counsel,

This statement tainted the evidence in this case and ostensibly gave the jury the

only link between the Defendant...and any prior, future, or current possession,

trafficking or any conspiracy to do the same involving illegal drugs. No

cautionary instruction from the court to the jury would have been sufficient to

cure the jury being tainted by this harmful testimony.

Id. The Court denied the motion, finding that the “single reference to ‘Thyron’ as a known drug

dealer in the Tallahassee area was harmless given the strong evidence of Defendant’s guilt.” 

Doc. 51.

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Shortly before sentencing, the Government moved for a hearing “to insure that

arrangements are made to insure that defendant Jasen Badia will be represented by counsel in the

continuation of these proceedings.” Doc. 52. This motion was necessitated by Mr. Srygley’s

30-day suspension from the practice of law for violating various ethics rules in connection with

his representation of clients in unrelated civil matters. Id. After conducting a hearing on the

matter, the magistrate judge allowed Mr. Srygley to withdraw, and he appointed the public

defender to represent Defendant. Doc. 56. Defendant was subsequently sentenced to 120

months imprisonment on each count to run concurrently. Doc. 64.

On appeal, Defendant raised two issues: whether the Court erred in denying the motion

for judgment of acquittal on the conspiracy count because there was insufficient evidence that an

agreement existed, and whether Defendant was denied a fair trial because of the Government’s

“‘repeated introduction of irrelevant, prejudicial testimony....’” Doc. 79. The court of appeals

affirmed, finding no reversible error. Id. More specifically, the court found that “sufficient

evidence was presented from which the jury could conclude that Badia had conspired with

Montford to commit the unlawful act of possessing cocaine with intent to distribute,” citing, for

example, the fact that Defendant and Montford “were together at the time the package was

picked up and the package was addressed to the apartment where Montford resided.” Id. As to

his other claim, the Eleventh Circuit found that the Court did not abuse its discretion in denying

Defendant a new trial based on the officer’s reference to “Thyron,” in light of the “strong

evidentiary support for Badia’s convictions presented at trial....” Id. The court of appeals also

rejected Defendant’s argument that the Court improperly allowed the officer to “testify about the

various calls made with the cellular telephone,” concluding that even if there was plain error,

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Defendant’s “substantial rights were not violated because the evidence of guilt here is

overwhelming.” Id. 

The instant motion to vacate ensued. On this occasion, Defendant attacks counsel’s

effectiveness on two grounds, each of which will be discussed in turn, and raises a claim that his

sentence violates Booker.

DISCUSSION

1. 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 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.; see

also Tafero v. Wainright, 796 F.2d 1314, 1319 (11th Cir. 1986).

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 (11th Cir. 1987). The court must 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

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

257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption...that [counsel] did what he should

have done and that he exercised reasonable professional judgment.” Chandler v. United States,

218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001). “The

relevant question is not whether counsel’s choices were strategic, but whether they were

reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules” for

determining whether counsel’s actions were indeed reasonable, as “[a]bsolute rules would

interfere with counsel’s independence–which is also constitutionally protected–and would

restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001). “To uphold a lawyer’s strategy, [the Court] need not attempt to

divine the layer’s mental processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. 

“No lawyer can be expected to have considered all of the ways [to provide effective assistance].” 

Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A,

course B, and so on. The lawyer’s strategy was course A. And [the Court’s]

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

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

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“reasonable probability is defined as a probability sufficient to undermine confidence in the

outcome.” Id. Additionally, prejudice is established only with a showing that the result of the

proceeding was fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

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 (11th Cir. 2000). This is because the test is not what the

best lawyers would have done or even what most good lawyers would have done, but rather

whether a reasonable lawyer could have acted in the circumstances as defense counsel acted. 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

A. Conflict of interest.

In his first ground for relief, Defendant charges that counsel “labored over a conflict of

interest prior to and during the course of the trial given that he was under an investigation which

had criminal implications....” Doc. 83 at 10. According to Defendant, his attorney, Mr. Srygley

“in an effort to curry favor with the government, deliberately foregone possible alternative

causes of action in this case.” Id. at 11. More specifically, he claims that counsel failed:

(1) to obtain handwriting exemplars from Montford “to show he wrote or caused

to be written the federal express way bill,” 

(2) to secure Montford’s financial records “to show he was in debt and in the need

of funds,”

(3) to allow Defendant to testify in his own defense to show “whether Mr. Badia

was duped into driving to the federal express facility or Montford was the one

duped by Mr. Badia,” 

(4) to interview Montford’s friends in Houston, Texas, “to establish his trips to

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and from the suburbs of that city and state,”

(5) to object timely “to hearsay testimony and references made by Officer Hoover

regarding non-party’s involvement in ‘narcotics work,’”

(6) to provide the curative instruction to the Court “regarding Officer Hoover’s

testimony after the trial judge granted leave to do so,”

(7) to refrain “from taking excess doses of anti-depression [medication] during the

course of the trial,”

(8) to discuss with Defendant his right to testify and to advise him that the

decision in that regard “was the exclusive decision of Mr. Badia, not counsel,”

and

(9) to present defense witnesses “who distributed and sold cell phones to Mr.

Badia for resale to college students and other consumers.”

Id. at 11-12.

At the evidentiary hearing, Mr. Srygley testified that his problems with the Florida Bar

“had nothing to do with any work that I had done in federal court in representing anybody. It

had nothing to do with the U.S. Attorney’s Office. It had nothing to do with the federal

government....” Doc. 127 at 86. He further testified that to his knowledge, there was no federal

or state criminal investigation into the incident. Id. When questioned as to whether the

disciplinary proceeding impacted his representation of Defendant, Mr. Srygley stated:

Not directly....I certainly was under a lot of stress because of that. But I had hired

an attorney who was representing me. He was advising me how to

proceed....certainly a federal criminal trial such as this is very stressful in and of

itself. So I would have to say I was probably under more stress professionally

and personally than I normally would have been. But I still believe...that the

Florida Bar...investigation certainly didn’t affect my ability to represent Mr.

Badia.

Id. at 86-87. According to Srygley, rather than create a situation in which he and Badia’s

interests were adverse to each other, the investigation instilled in him a “greater desire...to have

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Mr. Badia successful...to show myself...other members of the legal community in Tallahassee,

family, friends...that I was a capable attorney, very competent.” Id. at 87.

Counsel admitted that he was under a doctor’s care during this time period and that the

doctor had increased the dosage of his antidepressant but maintained that he took the amount of

medication prescribed and that it “had the desired therapeutic effect” and made him “more

attentive, less stressed out, better able to deal with stress as it would come along.” Id. at 87-88.

As to Officer’s Hoover’s statement, Mr. Srygley stated that after reflection he determined

“strategically and technically...we not have a curative instruction because that would then remind

the jury of something that Investigator Hoover had said an hour or two hours later” and he

“didn’t feel it was important...to remind the jury of something...they may not have even heard the

first time” since the comment “was almost like an offhand remark....[I]t was such a fast comment

that I was thinking to myself, well, I barely heard him say that.” Id. at 82-83. 

Counsel stated that he tried to develop a regular source of income for Mr. Badia, but

Defendant “didn’t give me a lot of details” about his cell phone business, and he had “no

receipts...documents, anything to show that he was selling a sufficient number of cell phones to

be able to provide for his family.” Id. at 85. In short, Srygley could not “come up with anything

on paper or any witnesses to put on the stand to say that [Defendant] had serious, regular

work[.]” Id. 

With regard to the label on the FedEx box, counsel made a conscious decision not to

request an exemplar from Montford. In his view, because the Government’s handwriting expert

could not identify the writing has being Defendant’s, a fact which went “directly to the

government’s ability to prove their case,” and because he was “trying to basically point the

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finger at Mr. Montford since his fingerprints were on the CPU casing inside the box,” he

determined the exemplar might work against Defendant. Id. at 99-101. As counsel put it:

“[W]hy give the government an opportunity to go find evidence that they don’t think they need

or may not realize it or the jury may want to see. If they don’t produce it, we can always say

they didn’t present the evidence to show this.” Id. at 101-02. Later, he elaborated:

I felt it best to be able to argue to the jury that the government hadn’t done their

job investigating this case. In other words, they thought they knew who did this. 

They quit looking for anybody else and decided to focus on Mr. Badia and not

Mr. Montford. If they really wanted to find who did it, they would have checked

Mr. Montford’s handwriting versus actually getting the government...to perhaps

do your job...and do a test; because I didn’t know what that test would reveal; i.e.,

if it turns out that an expert could then...exclude Mr. Montford, that would take

away our entire argument on that point that I just gave [that Montford might have

written the receipt].

Id. at 135-36. He also stated that Defendant gave him no reason to think that Montford had been

in Houston prior to the shipment of the package, “other than he could have been or might have

been or should have been, but nothing concrete to prove that he was there.” Id. at 136. At the

hearing, Defendant confirmed that he did not know if Montford had any friends in Houston. Id.

at 56. As to Montford’s financial situation, Defendant himself acknowledged that from

Montford’s testimony, “everybody in the courtroom [assumed] that Montford was in bad

financial shape.” Id. at 55.

Excepting for the moment the issue of Defendant’s right to testify, which will be

discussed infra, the Court has no hesitation in finding that Defendant has failed to prove that a

conflict of interest prevented counsel from effectively representing him at trial. Defendant

offered no proof that counsel was mentally or physically impaired or that any of his decisions

were the result of anything less than full and careful consideration. There is quite simply no

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deficient performance in any of the grounds advanced. Furthermore, as the Eleventh Circuit

found, the evidence of Defendant’s guilt was overwhelming, and thus, he suffered no prejudice

from any alleged errors on counsel’s part.

B. Right to testify.

 At the hearing, Defendant testified that he and Mr. Srygley “had more than one”

discussion regarding whether he should testify at trial. Id. at 38. According to Defendant, he

“wanted to testify [to tell my side of the story] and [Mr. Srygley] told me I wasn’t going to

testify.” Id. at 22. Defendant acknowledged that Srygley told him that if he testified, the

Louisiana conviction “would come out...as a form of impeachment” and that the Government

would then be able to get into its specifics because it was relatively similar to the charges at

issue in this case. Id. He also testified that counsel told him that the Government was going to

try to get the Louisiana conviction into evidence during its case in chief, but that he was going to

seek to exclude that evidence. Id. at 22-23. According to Defendant, counsel told him that he

“wasn’t going to testify because he had a strategy,” which Defendant “guess[ed] pertain[ed] to

that being brought up. Id. at 23. As previously noted, counsel successfully prevented the

Government from introducing evidence of prior bad acts. Nevertheless, counsel did not,

according to Defendant, convince him that “he was right and that [Defendant] shouldn’t

testify[.]” Id.

On cross-examination, Defendant testified that he has two college degrees, a B.A. in

criminology and a B.S. in psychology with a minor in juvenile justice, and that he knew from his

college classes that he had the absolute right to testify and that the decision regarding whether to

testify lay solely and exclusively with him. Id. at 37-38. Even so, he testified that when counsel

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announced to the Court that he was not going to call any witnesses, he did not take any steps to

inform anyone, not even Mr. Srygley, that he wanted to testify. Id. at 42-43.

In response to the Court’s questions, Defendant testified that counsel told him, “‘You are

not going to testify because everything in this case is pointing to your favor. You are going to go

home, so you are not going to testify.’” Id. at 75. He insisted, however, that he told counsel that

he wanted to testify anyway, but that Mr. Srygley “told me I wasn’t going to testify.” Id. 

Defendant stated that he did not argue with counsel further, and that the “final decision was

made by him, not me.” Id. at 76-77.

Counsel’s recollection is different. While he agreed that “from the beginning, we had

talked about whether or not he would testify,” id. at 78, and that they were still weighing the

decision at the beginning of trial, he “certainly did not keep [Defendant] from testifying.” Id. at

79-80. Instead, according to Mr. Srygley, he recommended that Defendant not testify because he

had successfully excluded reference to the Louisiana drug conviction, and Defendant “accepted

my recommendation....” Id. at 80. He was adamant that he “didn’t tell [Defendant] he couldn’t

testify” or that he “wouldn’t testify” because that “would not be my decision; it would be his.” 

Id. at 80-81. Ultimately, Mr. Badia, according to counsel, made the decision not to testify.

Having carefully considered the matter, the demeanor of the witnesses, and their

testimony, the Court finds counsel’s testimony to be the more credible. Though it would be

improper for this Court to credit counsel’s testimony over Defendant’s simply because there is a

conflict in their testimony, see Gallego v. United States, 174 F.3d 1196, 1198-99 (11th Cir. 1999),

it would be equally improper for this Court to ignore the fact that counsel is an experienced trial

attorney and an officer of this Court, and that Defendant is a convicted felon. See Fed. R. Evid.

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609. The Court finds it incredible that Defendant, a highly educated and articulate individual,

who fully knew and appreciated his unequivocal right to testify in his own behalf, would merely

sit back and allow counsel to make a decision which he knew counsel had no right to make. 

Instead, the Court believes the more credible and probable scenario is that counsel did in fact

advise Defendant that he should not testify for the reasons set forth at the hearing--if Defendant

had taken the stand, the Government would have unflinchingly cross-examined him about the

Louisiana drug conviction, and Defendant would most certainly have been convicted on that

basis alone–and that Defendant took that advise to heart and consciously made the decision

himself not to testify. Quite frankly, the Court does not believe Defendant’s version of events.

C. Booker.

United States v. Booker, 543 U.S. 220, 244(2005) is not retroactively applicable to cases

on collateral review, as “Booker’s constitutional rule falls squarely under the category of new

rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review.” 

Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005). This claim should therefore be

denied.

CONCLUSION

Having carefully considered the matter, the Court finds no merit to any of Defendant’s

claims. Accordingly, it is respectfully RECOMMENDED that the motion to vacate, Doc. 83,

be DENIED.

IN CHAMBERS at Gainesville, Florida, this 19th day of February, 2008.

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S/A. Kornblum 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 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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