UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Respondent,

v.

JASON FLOAREA,

Petitioner.

 /

Case No. 14-20614

Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING PETITIONER'S § 2255 MOTION TO 

VACATE, SET ASIDE, OR CORRECT SENTENCE [24]

Petitioner–Defendant Jason Floarea pleaded guilty to a one-count information

charging him with interstate transportation of stolen property in violation of 18 U.S.C. §

2314. As part of the plea agreement, Floarea waived the indictment and voluntarily

appeared to be arraigned on the information. On April 16, 2015, the Court accepted the

parties' Rule 11 plea agreement and sentenced Floarea to 12 months and one day of

imprisonment- the low end of the agreed upon guideline range. Floarea took no direct

appeal of his conviction or sentence.1

 Instead, he filed the instant request pursuant to 28

U.S.C. § 2255 seeking to vacate his sentence. For the reasons stated more fully below,

the Court DENIES Floarea's request. [24].

 1 It is well-established that a § 2255 motion “is not a substitute for a direct appeal.”

Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). As such, "claims that could

have been raised on direct appeal, but were not, will not be entertained via a motion under

§ 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to

raise the claims previously; or (2) that he is “actually innocent” of the crime." Bousley v.

United States, 523 U.S. 614, 622 (1998) (internal citations omitted). Here, Floarea does not

argue that he is actually innocent and there is no doubt that many of his claims should have

been raised on direct appeal. The Court addresses the substantive merit of his motion

nonetheless. 

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I. ANALYSIS

Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a [federal] court

. . . claiming the right to be released . . . may move the court which imposed the sentence

to vacate, set aside or correct the sentence." To prevail on a § 2255 motion, the petitioner

must allege: "(1) an error of constitutional magnitude; (2) a sentence imposed outside the

statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire

proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (internal

quotations omitted).

A. Ineffective Assistance of Counsel 

While Floarea raises four distinct arguments in support of his motion, they all revolve

around the same general premise; namely, that his trial counsel was constitutionally

ineffective. To prevail on an ineffective assistance claim, Floarea must show that his

counsel's performance was both deficient and prejudicial to his defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Deficient performance requires a showing that

"counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed by the Sixth Amendment." Id. In other words, Floarea must show that his

counsel's representation "fell below an objective standard of reasonableness." Id. at 688.

"This standard is highly deferential, and there is a 'strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.' " Mallett, 334

F.3d at 497 (quoting id. at 689). In the context of a guilty plea, "in order to satisfy the

'prejudice' requirement, the defendant must show that there is a reasonable probability that,

but for counsel's errors, he would not have pleaded guilty and would have insisted on going

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to trial.'" Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir. 1987) (quoting Hill v. Lockhart, 106

S. Ct. 366, 370 (1985). 

As a preliminary matter, Floarea has, in effect, conceded that he cannot establish

prejudice under Strickland by failing to assert that he "would have insisted on going to trial"

but for his counsel's alleged errors. Id. Instead, he maintains that his "attorney induced

[him] into a plea agreement by stating he would obtain probation . . . ." (Def.'s Mot. 2). As

the Sixth Circuit has pointed out, "[t]hat assertion does not establish prejudice, as it is

relevant only to sentencing and not to whether [the defendant] would have pled guilty."

United States v. Garfolo, 425 Fed.Appx. 460, 462 (6th Cir. 2011). Indeed, Floarea is quick

to admit that he "violated some of the law in question"- suggesting, at a minimum, that he

has no interest in seeking a trial in this matter. (Def.'s Br. 2). For that reason alone his

ineffective assistance of counsel claims are without merit. See Cutlip v. Smith, 12 F.3d

211, 1993 WL 524229, at *2 (6th Cir. Dec.15, 1993) (unpublished table decision)

(“[P]etitioner clearly fails to establish the prejudice prong of the Strickland test because he

does not allege that he would have insisted on going to trial . . . . ”). 

Even assuming, arguendo, that Floarea was able to establish prejudice, he has fallen

far short of convincing the Court that his counsel's performance was constitutionally

deficient. Indeed, according to Floarea, his "counsel made unrealistic promises to [him] .

. . by stating he would receive simple probation." (Def.'s Br. 1). But the Rule 11 plea

agreement is clear that, (1) Floarea's sentencing guideline range was 12 to 18 months, (2)

"probation [was] not authorized . . . .", and (3) the document constituted the "complete

agreement between the parties." (Dkt. 5, Rule 11 Plea Agreement, ¶¶ 2B, 3A). 

Furthermore, during his plea hearing, Floarea acknowledged that he understood and

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accepted the terms of the Rule 11 agreement, and that no one "made any other or different

promise or assurance of any kind in effort to get [him] to plead guilty[]." (Dkt. 12, October

16, 2014 Plea Hearing, Tr. 14); see United States v. Noland, No. 5:09-CR-17, 2015 WL

3819927, at *8 (E.D. Ky. Apr. 23, 2015) ("[w]hen viewed in its entirety, the record does not

provide any support for [d]efendant's claim that he was coerced into pleading guilty. The

colloquy during his rearraignment established that [d]efendant was competent to plead

guilty, that he was aware of his rights, and that he was not being forced into the plea

agreement.") This is further substantiated by Floarea's own counsel who, in an affidavit

provided to the Court, maintained that "[a]t no time was Mr. Floarea ever assured of any

sentence since the judge reserved that to herself on the record . . . ." (Gov. Br. Aff. of

James C. Thomas, Ex. 1 at ¶ 9). Where, as here, a petitioner's claim "cannot be accepted

as true because [it is] contradicted by the record, . . . ." an evidentiary hearing is not

required. Turner v. United States, 183 F.3d 474, 477 (6th Cir.1999) (internal quotations

omitted).

Floarea's remaining three claims can likewise be summarily dismissed. First, he

maintains that he "admitted guilt to a crime without . . . ever being read his Miranda rights

. . . ." (Def.'s Br. 3). But Miranda only applies to custodial interrogation, which the

Supreme Court has defined as "questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived or his freedom of action in any

significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). Here, the Government

contends that Floarea "was never in custody or interrogated, nor did he make any

incriminating statements to law enforcement." (Gov. Br. 4). Floarea offers nothing to

contradict the Government's assertion, and there is no question that Miranda “does not

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apply outside the context of the inherently coercive custodial interrogations for which it was

designed.” Roberts v. United States, 445 U.S. 552, 560 (1980).

Next, Floarea argues that "defense counsel refused to attack [the Government's

search of his home and business] or request an inquiry or obtain the search warrants no

matter how many pleas his client made." (Def.'s Br. 3). According to the Government,

however, "[a]lthough the search warrants and joint affidavit remained sealed, [counsel] was

provided with a copy of the extensive affidavit by the government during the plea

negotiations . . . ." (Gov. Br. 5). Floarea's counsel corroborates this assertion, noting that

he "was allowed to review the search warrant affidavit. Th[e] document [was] specific,

detailed and was evaluated and determined to sufficiently establish the government's

probable cause to search. The search warrant was not 'vague' in any way.'" (Aff. of Thomas

at ¶ 5). Floarea fails to offer any plausible legal basis in support of the notion that his

counsel was ineffective by failing to challenge the propriety of the search warrants. 

“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the

burden of sustaining their contentions by a preponderance of the evidence.” McQueen v.

United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam). Floarea's challenge on this

score amounts to little more than unsubstantiated rhetoric. Without more, Floarea has

failed to meet his burden of establishing that "no search warrant was given." (Def.'s Br. 3). 

Finally, Floarea argues that the "two and half year span between [the] raid on his

property" and his guilty plea was "clearly in violation of his Due Process Rights." (Def.'s Br.

4). This is nonsensical for at least two reasons. First, as the Government points out, the

search of Floarea's properties "netted voluminous material including computer drives."

(Gov. Br. 6). Significantly, transportation of stolen property under § 2314--the crime

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Floarea pleaded guilty to--carries a five-year statute of limitations. 18 U.S.C. § 3282(a). 

In this way, the Government was well within its rights to wait two years before formally filing

the information. Furthermore, the Speedy Trial Act "imposes two limits on the prosecution

of a criminal defendant: (1) the government must file an indictment within 30 days of the

defendant's arrest, 18 U.S.C. § 3161(b); and (2) the defendant's trial must commence

within 70 days of his initial appearance or the filing of the indictment, whichever occurs last,

id. § 3161(c)(1)." But Floarea was never arrested or indicted, and his guilty plea was

entered on the same day that he was arraigned. Accordingly, the Court is satisfied that

Floarea's Due Process rights were adequately protected. Furthermore, because the

"motion and the files and records of the case show conclusively that Petitioner is entitled

to no relief", 28 U.S.C. § 2255(b), the Court declines to hold an evidentiary hearing.

B. Certificate of Appealability 

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the

Rules Governing Section 2254 and 2255 Proceedings requires that a district court must

“issue or deny a certificate of appealability when it enters a final order adverse to the

applicant . . . . If the court issues a certificate, the court must state the specific issue or

issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).”

A certificate of appealability may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either

issue a certificate of appealability indicating which issues satisfy the required showing or

provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed.

R.App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir.1997). To

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receive a certificate of appealability, “a petitioner must show that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve encouragement

to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d

931 (2003) (internal quotes and citations omitted).

A habeas petitioner's ineffective assistance of counsel claim must make a substantial

showing of the denial of a constitutional right so as to justify the issuance of a certificate of

appealability. See Skaggs v. Parker, 235 F.3d 261, 266 (6th Cir. 2000). For the reasons

stated in this opinion, the Court will deny Floarea a certificate of appealability because he

has failed to make a substantial showing that his counsel's performance was deficient and

that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. The

Court concludes that reasonable jurists would not debate the Court's denial of Floarea's

claim of ineffective assistance of counsel, and thus declines to issue a certificate of

appealability.

II. CONCLUSION 

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE. IT IS FURTHER ORDERED that a certificate of

appealability is DENIED.

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: January 10, 2016

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I hereby certify that a copy of the foregoing document was served upon counsel of record

on January 10, 2016, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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