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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:03cr16-SPM

vs. Case No. 4:06cv580-SPM/WCS

HERNANDEZ LOPAZ DANIELS,

Defendant.

 /

SECOND REPORT AND RECOMMENDATION ON § 2255 MOTION

This cause was transferred to me for further proceedings. Doc. 103. Pending is

Defendant's 28 U.S.C. § 2255 motion. Doc. 98. The Government filed a response in

opposition to the motion and Defendant filed a reply. Docs. 102 and 108.

Whether the motion was timely filed

On April 30, 2007, I recommended that Defendant's 28 U.S.C. § 2255 motion be

denied as untimely based upon Rainey v. Secretary, Dept. of Corrections, 443 F.3d

1323, 1328 (11th Cir. 2006). Doc. 109. In August, Rainey was overruled by Ferreira v.

Secretary, Dept. of Corrections, 494 F.3d 1286 (11th Cir. 2007). In view of the ruling in

Ferreira, the report and recommendation was not adopted and the case was referred

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1

 Defendant had preserved the issue, and Booker was decided while the appeal

was pending. 

Case Nos. 4:03cr16-SPM and 4:06cv580-SPM/WCS

back to me for further consideration. Doc. 120. The parties were afforded an

opportunity to file additional argument, doc. 121, but no further argument has been filed.

Defendant was charged with conspiracy to distribute and possess with intent to

distribute more than fifty grams of a substance containing cocaine base (crack cocaine)

in violation of 21 U.S.C. § § 841(b)(1)(A)(iii) and 846 (Count One). Doc. 1 (indictment),

p. 1. He was also charged with three counts of distribution of crack cocaine in violation

of § § 841(a)(1) and 841(b)(1)(C). Id., pp. 2. Defendant had three qualifying felony

drug convictions and was subject to enhanced sentencing. Doc. 6. Following a jury

trial, Defendant was convicted of Counts One, Two, and Four, and acquitted of Count

Three. Doc. 41 (verdict). 

Defendant was sentenced to "a term of Life on Count 1 and 360 months on

Counts 2 and 4; with all terms to run concurrently with each other." Doc. 57 (judgment). 

On appeal, the convictions were affirmed, but the sentences on the distribution

Counts (Two and Four) were vacated and remanded for resentencing. Doc. 83. The

sentences were vacated because it was not clear what the sentences would have been

had the sentencing guidelines been advisory rather than mandatory. Id. (attached

opinion), pp. 13-15, citing United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005) (other citations omitted).1

 The life sentence on Count One was not

vacated because, based on the verdict and Defendant's three prior felony drug

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2

 The jury found beyond a reasonable doubt that count one involved fifty grams

or more of a mixture or substance containing cocaine base. Doc. 41, p. 1. 

Case Nos. 4:03cr16-SPM and 4:06cv580-SPM/WCS

convictions, the sentence was a mandatory term of life imprisonment under the statute. 

Id., p. 14.2 Certiorari was denied by the Supreme Court on October 11, 2005. 

On remand, Defendant was resentenced to "a term of three hundred and sixty

(360) months as to Counts 2 and 4, to run concurrently with the Life sentence imposed

on Count 1 on January 20, 2004." Doc. 94 (judgment on remand), p. 2. The judgment

was entered on the docket on April 2, 2006. Defendant did not appeal. 

This § 2255 motion was filed on December 19, 2006, within one year from the

date on which the resentencing judgment on Counts Two and Four became final.

Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286 (11th Cir. 2007)

concerned a § 2254 petition. The court there reasoned:

Thus, when AEDPA states, "The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall entertain an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States," the judgment to

which AEDPA refers is the underlying conviction and most recent

sentence that authorizes the petitioner's current detention. 28 U.S.C. §

2254(a).

494 F.3d at 1291-1292 (emphasis added). 

A section 2255 motion should be governed similarly. The one year for filing a §

2255 motion commences, inter alia, from "the date on which the judgment of conviction

becomes final." 28 U.S.C. § 2255 (emphasis added). The federal "judgment of

conviction" should mean the same thing as a "judgment of a State court," that is, "the

underlying conviction and most recent sentence that authorizes the petitioner's current

detention." Ferreira, 494 F.3d at 1292. This § 2255 motion was timely filed to challenge

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the original conviction. Cf., United States v. Murphy, No. 3:03cr147-RV, 2007 WL

3072411 (N.D. Fla., October 22, 2007) (granting a certificate of appealability on whether

resentencing pursuant to a Rule 35 motion restarts the AEDPA one year period). The

court, therefore, should address the merits of Defendant's claims.

The merits of this § 2255 motion

Defendant numbered the issues he raises but added several unnumbered claims

at the beginning. The claims raised are renumbered by the court in the order raised by

Defendant.

Ground one

Defendant argues that his indictment was invalid as to the conspiracy count,

Count One, because prosecution of the offense charged was barred by the statute of

limitations. Doc. 98, p. 4. The premise of this claim is that the indictment alleged a

conspiracy commencing on March 1, 1998, but the indictment was not filed until March

3, 2003, more than five years after the conspiracy was alleged to have commenced. 

Doc. 1. Defendant contends his attorney was ineffective for failing to pursue this issue.

A claim of ineffective assistance of counsel requires proof of both attorney error

and prejudice to the outcome. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984). With regard to attorney error, "[t]he court must . . .

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. . . . [T]he court

should recognize that counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. To show prejudice, a

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3

 The Eleventh Circuit found the conspiracy count statute of limitations claim

waived because it was not raised at trial. Id., p. 12; p. 14 on the electronic docket. 

Defendant also asserted ineffective assistance of trial counsel for failing to preserve the

issue, a claim not generally considered on direct appeal. Id., n. 3. The court also noted

that even if a timely objection had been raised, it would not have prevailed because "the

evidence clearly demonstrates that Daniels participated in the conspiracy from 1998

until 2003, when he was arrested." Id., pp. 12-13, n. 3; pp. 14-15, n. 3, on the electronic

docket.

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claimant must show "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694,

104 S.Ct. at 2068. Failure to demonstrate either inadequate performance or prejudice

to the outcome is dispositive of the claim against the petitioner. 466 U.S. at 697, 104

S.Ct. at 2069.

The limitations period for a drug conspiracy is five years. United States v.

Harriston, 329 F.3d 779, 783 (11th Cir. 2003) (citation omitted). But the indictment was

not "invalid" because it alleged commencement of the conspiracy beyond the five year

period of limitations. "The government satisfies the requirements of the statute of

limitations for a non-overt act conspiracy if it alleges and proves that the conspiracy

continued into the limitations period." Id. (citation omitted). As summarized by the

Eleventh Circuit, the evidence of the conspiracy was "overwhelming." Doc. 83, p. 9;

doc. 83, p. 11 on the electronic docket. Further, as also noted by the Eleventh Circuit,

this claim would be unavailing because the conspiracy continued into the limitations

period. Id., p. 12, n. 3; p. 14, n. 3 on the electronic docket.3

 Counsel was not ineffective

for failing to argue this claim.

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4

 Defendant was acquitted of Count Three, and thus the claim applies only to

Counts Two and Four.

5

 In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403

(2004), the Court applied Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,

2362-63, 147 L.Ed.2d 435 (2000) to a sentence enhanced under state sentencing

guidelines. In United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), the Court applied Apprendi and Blakely to the Federal Sentencing Guidelines.

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Ground two

Defendant argues that the indictment was defective for failure to allege drug

quantities in Counts Two, Three, and Four,4 and alleges ineffective assistance of

counsel as to this issue. Defendant cites Blakely v. Washington, 542 U.S. 296, 124

S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 200,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005).5

 Doc. 98, p. 4. 

Defendant was sentenced on remand after Booker, and the court resentenced

him using the Guidelines as advisory only. Docs. 83 and 94. Whatever reliance

Defendant now places upon Booker is moot because any Booker claim he had was

honored. 

Although he does not argue it, Defendant had no Fifth Amendment indictment

claim either. Counts Two and Four alleged knowing and intentional distribution of a

quantity of crack cocaine without regard for amount. The maximum punishment without

regard to the weight of the crack cocaine was a term of 20 years of imprisonment. 

Defendant had prior drug convictions, raising the statutory maximum penalty to 30 years

of imprisonment. 21 U.S.C. § 841(b)(1)(C). Doc. 6 (notice of prior convictions). 

Defendant was sentenced on Counts Two and Four to a 30 year term (360 months). 

This did not exceed the statutory maximum and thus did not violate Fifth Amendment. 

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See, United States v. Hester, 287 F.3d 1355, 1357 (11th Cir.), cert. denied, 537 U.S.

966 (2002) (the statutory maximum sentence includes the sentence that may be

imposed after a prior drug conviction); United States v. Gibson, 434 F.3d 1234, 1250 n.

30 (11th Cir.), cert. denied, 126 S.Ct. 2911 (2006) (no Fifth Amendment violation where

the sentence was less than the statutory maximum); United States v. Navarro-Lenis,

148 Fed.Appx. 801, *2, n. 1 (11th Cir. 2005) (not selected for publication in the Federal

Reporter, No. 04-14420) (no Fifth Amendment error where Defendant sentenced below

the statutory maximum).

Ground three

Defendant argues in his first enumerated issue that counsel was ineffective. 

Doc. 98, pp. 4-10. Defendant makes a number of unexplained accusations under this

heading. He asserts that his lawyer should have moved to dismiss the indictment

because the statements in the affidavit submitted to support the search warrant were

false. Id., pp. 4-5. He asserts that his attorney did not "bother to discuss any pretrial or

trial strategy with Mr. Daniels," and met with him for "approximately 15 minutes." Id., p.

5. He asserts that his attorney did not discuss the benefits of pleading guilty. Id. He

alleges that his lawyer did not conduct pretrial investigation. Id., p. 8. 

With the exception of alleged false testimony regarding statements from

Delovontez D. Washington (which will be discussed ahead with respect to ground five),

Defendant has provided no specifics as to any of these claims to show attorney error or

prejudice to the outcome. This is fatal to the claim. "A convicted defendant making a

claim of ineffective assistance of counsel must identify the acts or omissions of counsel

that are alleged not to have been the result of reasonable professional judgment." 

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Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066. "Conclusory allegations

of ineffective assistance are insufficient." Wilson v. United States, 962 F.2d 996, 998

(11th Cir. 1992) (drug quantity at sentencing, failure to allege specific facts), quoting,

United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991) (same); Aldrich v.

Wainwright, 777 F.2d 630, 636-37 (11th Cir. 1985), cert. denied, 479 U.S. 918 (1986)

(defendant's conclusory allegations about the testimony of uncalled witnesses are

insufficient to state a claim of ineffective assistance of counsel); Bolder v. Armontrout,

921 F.2d 1359, 1363-1364 (8th Cir. 1990), cert. denied, 502 U.S. 850 (1991); United

States v. Vargas, 920 F.2d 167, 169-170 (2d Cir. 1990), cert. denied, 502 U.S. 826

(1991).

Ground four

In "issue two," Defendant asserts that "[c]ounsel was also ineffective for not

proceeding with motions to have a suppression hearing or suppression of the evidence

during pretrial matters." Doc. 98, p. 10. 

Defendant claims that counsel was ineffective as to the "veracity of the Search

Warrant Affidavit." Id. Defendant again provides no specifics, and the claim is

insufficient. This will be discussed in greater depth ahead with respect to ground five.

Defendant claims that counsel was ineffective for failing to move to dismiss the

indictment due to the statute of limitations. Id. This claim is without merit as discussed

above.

Defendant claims that counsel was ineffective because the indictment alleged

that he conspired with unknown persons. Id. He asserts that counsel should have

argued violation of the right to confrontation based on the charge of conspiracy with

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unknown persons. Id., pp. 10-11. Defendant claims the Government knew there was

no conspiracy, and shifted the burden of proof to him to prove he did not conspire with

unnamed persons. Id., p. 11.

Counsel was not ineffective. The Eleventh Circuit found that Defendant's

attorney moved to dismiss the indictment because it did not identify the persons with

whom Defendant conspired. Doc. 83, p. 7. The court rejected that claim.

Defendant does not identify anything else that his attorney might have argued

that would have been successful. A person may be convicted of conspiring with

unknown and unnamed persons. United States v. Figueroa, 720 F.2d 1239, 1244-1245

and n. 8 (11th Cir. 1983), citing, United States v. Goodwin, 492 F.2d 1141 (5th

Cir.1974). 

There was "overwhelming" evidence of a conspiracy with other persons, as the

Eleventh Circuit found. Doc. 83, p. 11. The Eleventh Circuit noted:

[The evidence] showed that [Defendant]: (1) partnered with his friend

Burgess from mid-1998 until April 1999 to sell Burgess's drugs and split

the profits; (2) advanced large sums of cocaine to Henry Washington from

1998 to 2000 and tried to cook several ounces of crack cocaine for him;

(3) was introduced to Dupont by Green, who also accompanied him on

several drug deals; (4) used the car of an unidentified couple to facilitate

the crack cocaine deal with Dupont at the Tallahassee Mall; and (5) used

Green and his brother to find out if Dupont was working for the police,

which led to Dupont's murder.

Doc. 83, p. 11. Ground four is without merit.

Ground five

Issue three presented by Defendant claims that trial counsel was ineffective for

failing to interview or depose witnesses listed in the search warrant affidavit, including

Delovontez Washington and Renisha Gibbs. Defendant asserts that these two people

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would have contradicted "the government's allegations in the Search Warrant Affidavit." 

Id., pp. 12-13. While Defendant identified the two witnesses by name, he did not allege

what they would have said had Defendant's attorney interviewed them.

In his reply to the Government's response, however, Defendant filed an affidavit

from Delovontez Washington dated March 16, 2007. Doc. 108-2, p. 11 on the electronic

docket; doc. 108, Ex. D. In that affidavit, Washington states that he never met with

anyone from the Florida Department of Law Enforcement (FDLE) concerning the drug

trafficking activities of Defendant, and that all of the statements attributed to him by DEA

agent Louis Andris in support of the search warrant for Defendant's home were "not

true." Id. Washington generally recants everything that he reportedly said to law

enforcement officers in the affidavit in support of the search warrant for Defendant's

home. Id.

The claim concerning the evidence allegedly provided to support the search

warrant implicates the ruling in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978). Franks held that when the veracity of a sworn statement used by

law enforcement officers to obtain a search warrant is challenged and an evidentiary

hearing is found to be warranted, the burden is upon the challenging defendant to prove

that the statements contained therein were "deliberate falsehood[s]" or made in

"reckless disregard for the truth." 438 U.S. at 171, 98 S.Ct. at 2684. "The deliberate

falsity or reckless disregard whose impeachment is permitted . . . is only that of the

affiant, not of any nongovernmental informant." Id. 

Since an evidentiary hearing has not been held, it will be assumed for the sake of

argument that Washington is now telling the truth. If DEA Andris and others never

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interviewed Washington at all, then the statements by DEA Andris in his affidavit

regarding what Washington said about Defendant's drug dealings would have been a

"deliberate falsehood."

But that does not end the Franks analysis. 

To justify suppression of evidence seized under a warrant, the alleged

deliberate or reckless failure to include material information in the affidavit

must conceal information that would defeat probable cause. See United

States v. Cross, 928 F.2d 1030, 1040 (11th Cir.1991); see also United

States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir.1990) (Minor or

immaterial omissions from the affidavit will not invalidate a warrant where

the omitted information, if furnished, would not have precluded a finding of

probable cause.).

United States v. Steiger, 318 F.3d 1039, 1046 (11th Cir.), cert. denied, 538 U.S. 1051

(2003).

I issued the search warrant on March 10, 2003. Case Number 4:03mj38. I

ordered that a copy of that application and affidavit for this search warrant be separately

filed on the docket. The affiant, DEA agent Andris, provided evidence, inter alia, that

from 1998 through at least October 25, 2002, Defendant had been distributing cocaine

and crack cocaine with Vinson Burgess, Constance Dupont, Nan Campbell, Jim

Campbell, and Renisha Gibbs. Affidavit, ¶¶ 2-38. There was also evidence from

surveillance of drug buys from Defendant, including one on October 11, 2002,

recordings of drug buys from Defendant, and intercepted telephone conversations on

October 6, 2002, and October 25, 2002, in which Defendant talked about his drug

dealings. Id. See especially ¶¶ 19, 21-26, and 38. 

Delovontez Washington is Defendant's brother. Affidavit, ¶ 8. Washington was

interviewed on December 3, 2002, according to Agent Andris. Affidavit, ¶ 39. 

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Washington provided information as to where Defendant was "currently" getting his

cocaine. Affidavit, ¶ 41. He provided information that Defendant had "just received"

cocaine. Id. 

Finally, the most current information in support of the application for a search

warrant was the March 4, 2003, testimony of Renisha Gibbs. Affidavit, ¶ 47. She said

she believed Defendant was still selling crack cocaine because Defendant was still

receiving telephone calls and pages, just as he had done when he sold crack cocaine in

the past. Id.

In summary, the issue for probable cause was whether the evidence was stale. 

It was not. Washington's evidence of Defendant's drug dealing was a bit closer to the

date of the application for the search warrant (March 10, 2003). But excluding that

evidence, the remainder of the affidavit showed continuous dealing from 1998 through

at least October 25, 2002, and some reason to believe that as late as March 4, 2003,

Defendant was still in the drug business. Even without the evidence from Washington,

there was probable cause to believe that evidence of Defendant's past drug dealing

(ledgers, scales, residue, weapons, and the like) would be found in his residence.

For these reasons, an evidentiary hearing is not needed. Even if Washington

were now telling the truth, Defendant had no Franks claim. Hence, prejudice to the

outcome has not been shown for the alleged failure of counsel to interview Washington.

In ground five, Defendant also faults counsel for failing to hire an investigator. 

Id., p. 12. He asserts that between the time counsel was appointed on April 4, 2003,

and trial on October 21, 2003, counsel only visited him once, the day before trial. Id., p.

13. Defendant claims that counsel did not discuss the case with him or learn the facts

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of the case. Id., pp. 13-16. These allegations are insufficient because specifics have

not been alleged. Clifford Davis, Defendant's attorney, states under oath: "I

interviewed numerous witnesses prior to trial who were not called to testify. All

decisions on who to call and not to call were discussed with and had the approval of the

Defendant." Doc. 102-2, p. 1. Mr. Davis states that Defendant's claim that he failed to

investigate is "an absolute false statement." Id., p. 2. Counsel for Defendant called

seven witnesses in defense: Barbara McGraw, Quinton Peters, Jeremy Graham, John

French, Renardo Daniels, Todrick Brown, and Tara Daniels. Doc. 102, p. 16, citing the

record. As previously noted, Defendant was acquitted of one of the four counts. 

Against this record, the lack of specifics is fatal to this aspect of ground five. For all of

these reasons, ground five is without merit.

Ground six

Issue four contends that counsel was ineffective in failing to negotiate a plea

bargain or advise Defendant whether to enter a plea or go to trial. Doc. 98, p. 17. 

Defendant argues that his attorney "knew the defendant was facing a mandatory life

sentence." Id. Defendant then expounds upon the virtues and benefits of cooperation,

but offers nothing that he might have done to cooperate. Id., pp. 17-21. The missing

element of the claim here, like all that have gone before, is the failure to alleges

specifics. Mr. Davis avers: "The plea was non-negotiable but the Defendant insisted on

his innocence at all times and demanded a trial." Doc. 102-2, p. 2. Trial counsel

confirms:

Neither the charges nor the notice of enhanced sentence was negotiable. 

Given the evidence of Daniels' involvement in Dupont's murder, the

government would not have offered anything less than a plea to the

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indictment. If Daniels had decided to plead guilty, he would have faced

the same statutory penalty of life imprisonment on Count One.

Doc. 102, p. 16. This is true. The United States Attorney for this District uniformly

requires a plea to the most severe count charged. Ground six affords no relief.

Ground seven

Defendant argues in issue five that counsel was ineffective for failing to advise

that his sentence would be enhanced pursuant to 21 U.S.C. § 851 based on his prior

convictions. Doc. 98, p. 21. He argues that counsel did not explain that the

enhancement was to life imprisonment. Id. He asserts that this failure deprived him of

effective assistance of counsel because he was not able to make an informed decision

as to whether to plead guilty. Id. 

Mr. Davis avers that this claim is false. Doc. 102-2, p. 2. Further, the notice of

enhancement was filed at Defendant's first appearance, on March 11, 2003, and

presented by hand to Defendant's attorney at that time, Mr. Murrell. Doc. 6. Defendant,

of course, was there. Moreover, at the first appearance I told the Defendant that he

faced a mandatory sentence on Count One if convicted due to his prior drug

convictions. Doc. 7. The claim is completely contrary to the record.

Finally, even had Defendant entered a guilty plea and received a three level

reduction for acceptance of responsibility, he still would received a mandatory life

sentence under the statute. Doc. 83 (Eleventh Circuit opinion), p. 16, citing 21 U.S.C. §

841(b)(1)(A). Doc. 102, pp.16-17. Prejudice to the outcome has not been shown.

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Ground eight

In issue six, Defendant faults counsel for failing to file a motion to set aside the

jury verdict on Count One based on insufficient evidence to establish a conspiracy, as

was argued on direct appeal. Doc. 98, pp. 22-23. Like all of the other claims, this claim

of ineffective assistance of counsel is unsupported. Defendant does not explain what

arguments his attorney should have made to support a motion to set aside the jury

verdict on Count One. Defendant's lawyer filed a motion for judgment of acquittal. Doc.

83, p. 10. On appeal, the evidence to support conviction of a conspiracy was found to

be overwhelmingly sufficient. A separate motion to set aside the verdict would have

been futile.

For these reasons, it is RECOMMENDED that Defendant Hernandez Lopaz

Daniels's motion to vacate and set aside a sentence filed pursuant to 28 U.S.C. § 2255,

doc. 98, is DENIED.

IN CHAMBERS at Tallahassee, Florida, on November 19, 2007.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

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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