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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 1:10cr5/MCR/GRJ

1:12cv268/MCR/GRJ

RICHARD MITER

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255 and supporting memorandum of law.

(Doc. 140.) The Government has filed a response (Doc. 143) and Defendant filed a

reply. (Doc. 144.) After a careful review of the record and the arguments presented,

the Court concludes that Defendant has not raised any issue requiring an evidentiary

hearing and that the § 2255 motion should be denied. See Rules Governing Section

2255 Cases 8(a) and (b). 

PROCEDURAL BACKGROUND

Defendant was the lone defendant charged in a one count indictment with

conspiracy to distribute and possess with intent to distribute five kilograms or more of

cocaine and more than fifty grams of cocaine base. (Doc. 1.) The Government filed an

Information and Notice of Intent to seek enhanced penalties based upon Defendant’s

prior felony drug convictions, and Defendant objected thereto. (Docs. 13, 22.) Attorney

Jon Uman was appointed to represent Defendant, after Defendant had expressed a

lack of confidence in his previous attorney, and Mr. Uman was later replaced by Aaron

Baker of the same law firm. (Docs. 28, 49, 60.) Mr. Baker represented Defendant at a

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brief jury trial, after which the jury found the Defendant guilty of conspiracy. (Doc. 84.) 

The jury specifically found that the offense conduct involved less than 5 kilograms but

more than 500 grams of cocaine. The jury did not find that any cocaine base was

involved in the offense conduct. (Doc. 84.) Defendant unsuccessfully moved for a new

trial and for a judgment of acquittal. (Docs. 87, 88, 94, 102.) The PSR calculated

Defendant’s total offense level as 26 and his criminal history category as IV, which

yielded an advisory guideline range of 92 to 115 months imprisonment. (Doc. 115 at ¶

68.) Following a two-part sentencing proceeding on January 28, 2011, and April 29,

2011, the Court sentenced Defendant to the statutory mandatory minimum term of 120

months imprisonment. (Docs. 113, 130, 131.) Defendant appealed, arguing that a

delay in sentencing caused him to suffer a violation of his speedy trial rights under the

Sixth Amendment as well as his right to be promptly sentenced under Federal Rule of

Criminal Procedure 32(b)(1). (Doc. 139.) The Eleventh Circuit found no prejudice and

affirmed. (Id.).

Defendant timely filed the instant § 2255 motion raising a single ground for relief. 

He asserts that counsel was constitutionally ineffective for failing to file a motion to

suppress, and that his sentence should be vacated. (Doc. 140 at 28.) The

Government opposes the motion. 

LEGAL ANALYSIS

General Standard of Review

Collateral review is not a substitute for direct appeal, and therefore the grounds

for collateral attack on final judgments pursuant to § 2255 are extremely limited. A

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prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1)

violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3)

exceeded the maximum authorized by law, or (4) is otherwise subject to collateral

attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n. 8

(11th Cir. 2011). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of

constitutional rights and for that narrow compass of other injury that could not have

been raised in direct appeal and would, if condoned, result in a complete miscarriage of

justice.’” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations

omitted). The “fundamental miscarriage of justice” exception recognized in Murray v.

Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged

constitutional violation “has probably resulted in the conviction of one who is actually

innocent . . . .” 

The law is well established that a district court need not reconsider issues raised

in a section 2255 motion which have been resolved on direct appeal. Rozier v. United

States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340,

1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). 

Once a matter has been decided adversely to a defendant on direct appeal, it cannot

be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343

(quotation omitted). Broad discretion is afforded to a court’s determination of whether a

particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16

(1963) (“identical grounds may often be proved by different factual allegations . . . or

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supported by different legal arguments . . . or couched in different language . . . or vary

in immaterial respects”). 

Furthermore, a motion to vacate under section 2255 is not a substitute for direct

appeal, and issues which could have been raised on direct appeal are generally not

actionable in a section 2255 motion and will be considered procedurally barred. Lynn,

365 F.3d at 1234–35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v.

United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “‘available’ on direct

appeal when its merits can be reviewed without further factual development.” Lynn,

365 F.3d at 1232 n. 14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the

ground of error was unavailable on direct appeal, a court may not consider the ground

in a section 2255 motion unless the defendant establishes (1) cause for not raising the

ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that

is, alternatively, that he is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523

U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must

show that “some objective factor external to the defense prevented [him] or his counsel

from raising his claims on direct appeal and that this factor cannot be fairly attributable

to [defendant’s] own conduct.” Lynn, 365 F.3d at 1235. A meritorious claim of

ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

Ineffective assistance of counsel claims are generally not cognizable on direct

appeal and are properly raised by a § 2255 motion regardless of whether they could

have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503

(2003); see also United States v. Franklin, 694 F.3d, 1, 8 (11th Cir. 2012). In order to

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prevail on a constitutional claim of ineffective assistance of counsel, a defendant must

demonstrate both that counsel’s performance was below an objective and reasonable

professional norm and that he was prejudiced by this inadequacy. Strickland v.

Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000);

Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013).In applying Strickland,

the court may dispose of an ineffective assistance claim if a defendant fails to carry his

burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United

States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v. Haley, 209 F.3d 1243, 1248

(11th Cir.2000) (“[T]he court need not address the performance prong if the defendant

cannot meet the prejudice prong, or vice versa.”).

In determining whether counsel’s conduct was deficient, this court must, with

much deference, consider “whether counsel’s assistance was reasonable considering

all the circumstances.” Strickland, 466 U.S. at 688; see also Dingle v. Sec’y for Dep’t of

Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to review counsel’s

performance in a highly deferential manner and “must indulge a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance.” 

Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) (quoting Strickland, 466 U.S. at

689); see also Chandler v. United States, 218 F.3d 1305, 1315–16 (11th Cir. 2000)

(discussing presumption of reasonableness of counsel’s conduct); Lancaster v.

Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was “not

entitled to error-free representation”). Counsel’s performance must be evaluated with a

high degree of deference and without the distorting effects of hindsight. Strickland, 466

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U.S. at 689. 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.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations

omitted); Chandler, 218 F.3d at 1315. When examining the performance of an

experienced trial counsel, the presumption that counsel’s conduct was reasonable is

even stronger, because “[e]xperience is due some respect.” Chandler, 218 F.3d at

1316 n.18.

With regard to the prejudice requirement, defendant must establish that, but for

counsel’s deficient performance, the outcome of the proceeding would have been

different. Strickland, 466 U.S. at 694. “The likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011)

(quoting Strickland). For the court to focus merely on “outcome determination,”

however, is insufficient; “[t]o set aside a conviction or sentence solely because the

outcome would have been different but for counsel’s error may grant the defendant a

windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364,

369–70 (1993); Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 754 (11th Cir. 2010). 

A defendant therefore must establish “that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart, 506 U.S.

at 369 (quoting Strickland, 466 U.S. at 687). 

To establish ineffective assistance, Defendant must provide factual support for

his contentions regarding counsel’s performance. Smith v. White, 815 F.2d 1401,

1406–07 (11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are

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insufficient to satisfy the Strickland test. See Boyd v. Comm’r, Ala. Dep’t of Corr., 697

F.3d 1320, 1333–34 (11th Cir. 2012); Garcia v. United States, 456 F. App’x 804, 807

(11th Cir. 2012) (citing Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir. 1993)); Wilson v.

United States, 962 F.2d 996, 998 (11th Cir. 1992); Tejada v. Dugger, 941 F.2d 1551,

1559 (11th Cir. 1991); Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) (citing

Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

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. 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 some reasonable lawyer could have acted in the

circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v.

Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). “Even if counsel’s decision appears to

have been unwise in retrospect, the decision will be held to have been ineffective

assistance only if it was ‘so patently unreasonable that no competent attorney would

have chosen it.’” Dingle, 480 F.3d at 1099 (quoting Adams v. Wainwright, 709 F.2d

1443, 1445 (11th Cir. 1983)). 

An evidentiary hearing is unnecessary when “the motion and files and records

conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b);

Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of

ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at

1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled

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to a hearing, a defendant must allege facts that, if true would prove he is entitled to

relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A

hearing is not required on frivolous claims, conclusory allegations unsupported by

specifics, or contentions that are wholly unsupported by the record. Peoples v.

Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004); Tejada, 941 F.2d at 1559; Holmes v.

United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (citations omitted). Likewise,

affidavits that amount to nothing more than conclusory allegations do not warrant a

hearing. Lynn, 365 F.3d at 1239.

Defendant’s Fourth Amendment Claim

Defendant claims that counsel was constitutionally ineffective because he failed

to move to suppress drugs that were seized during a co-conspirator’s arrest and that his

decision to go to trial was based on counsel’s alleged promise to file the motion. (Doc.

140 at 4.) In his memorandum Defendant expands this claim to also argue that counsel

should have challenged alleged chain of custody violations, or filed a motion to

suppress on that basis. 

When counsel’s alleged ineffectiveness involves a failure to competently litigate

a Fourth Amendment claim, to demonstrate actual prejudice the defendant must prove

that his Fourth Amendment claim is meritorious and that there is a reasonable

probability that the verdict would have been different absent the excludable evidence. 

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Zakrzewski v. McDonough, 455

F.3d 1254, 1260 (11th Cir. 2006). Regardless of whether a defendant’s guilt is

established by the excludable evidence, the proper question is whether the outcome of

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the proceedings would have been different had the motion to suppress been filed and

the evidence been excluded. Jones v. United States, 224 F.3d 1251, 1259 (11th Cir.

2000); Huynh v. King, 95 F.3d 1052, 1058–59 (11th Cir. 1996); Thomas v. Newsome,

821 F.2d 1550, 1552 (11th Cir. 1987); see also Ward v. Dretke, 420 F.3d 479, 488 (5th

Cir. 2005). In this case, co-conspirator Joyner’s testimony alone conceivably could

have supported a conviction. But in any event, there was no basis for a meritorious

Fourth Amendment claim. 

Jeremiah Joyner testified at trial that on the day of his arrest, he was in

possession of a kilogram plus 4.5 ounces of cocaine that were contained in his

luggage. Joyner testified that he had purchased the kilogram of cocaine from Coolie

(Defendant Miter) and the 4.5 ounces came from another source. (Doc. 126 at 43–44,

61–62.) At the time of his arrest Joyner said he was trying to “get everything situated 1

and get out of sight” after learning that one of his co-defendants had been arrested. 

(Id. at 45–46.) Joyner identified Government’s exhibit 1 as a photo of the drugs seized

from him at trial. (Id. at 48–49.) He explained that the two larger packages were two

half kilogram quantities of cocaine that were vacuum sealed in “FoodSaver” bags. 

Joyner said that he received the cocaine in that condition, and that he had not opened

the bags. (Id. at 49, 74.) He did not observe the packaging of the drugs, and

Defendant was not present at the time of Joyner’s arrest.

On cross examination, defense counsel brought out that Joyner had previously told 1

law enforcement that the kilogram of cocaine had also come from another source, an

individual known as Haitian Frank. (Doc. 126 at 64–65.) Joyner also conceded that

Defendant Miter was not mentioned in the statement of facts in support of his plea

agreement. (Id. at 69.) 

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To the extent Defendant claims that counsel’s failure to move to suppress the

drugs seized from Joyner was constitutionally ineffective, his claim is without merit. A

motion to suppress the drugs, even if based on the premise that law enforcement’s

search of Joyner’s baggage was unlawful, would have failed because Defendant had no

legitimate expectation of privacy in Joyner’s luggage and, therefore, Defendant’s Fourth

Amendment rights were not violated. See United States v. Padilla, 508 U.S. 77, 81

(1993); United States v. McKinnon, 814 F.2d 1539 (11th Cir. 1987).

In his memorandum, Defendant’s Fourth Amendment claim expands into a claim

that the drug and fingerprint evidence should not have been admitted due to alleged

irregularities in the chain of custody. Peter Echevarria, senior forensic chemist at the

DEA laboratory, testified about the analysis he conducted on the drugs seized in this

case. Mr. Echevarria testified that he received three packages of drugs, two vacuum

sealed plastic bags and a small plastic baggie. (Doc. 128 at 119.) This was consistent

with Mr. Joyner’s description of the drugs law enforcement seized from him at the time

of his arrest. Mr. Echevarria identified Government’s exhibit 9 as the original heat

sealed envelope that he received along with the request for the analysis of the contents

and for the removal of the original package for fingerprint analysis. (Id. at 118.) He

testified that Government’s exhibit 10 was the package he created when he removed

the original packaging in Government’s exhibit 9 for fingerprint analysis. (Id.) 

Anna Zadow, a senior fingerprint specialist employed by the DEA testified that

she was asked to analyze Government’s exhibit 10. She described the contents of this

exhibit as four FoodSaver bags and one plastic bag. (Doc. 128 at 131.) Ms. Zadow

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testified that two of the larger bags had detectable cocaine residue on them, and two

did not. (Id. at 133.) She was able to identify a single fingerprint belonging to

Defendant on one of the bags that did not contain residue. (Id. at 138.)

Defendant now contends that counsel should have moved to “suppress” this

evidence because the chain of custody was somehow broken if the three bags initially

seized “turned into” the five bags contained in Government’s exhibit 10. Defendant

misreads the record and misapprehends the meaning of the Fourth Amendment. Mr.

Echevarria’s testimony does not foreclose the possibility that the FoodSaver bags were

double bagged. He consistently refers to “original packaging” and makes no effort to

describe the packaging. (Doc. 128 at 119, 123.) Furthermore, this witness’s focus was

on the weight and identity of the contents of the three packages, rather than the

packaging material itself. And it is not unreasonable to conclude that something as

valuable as a half kilogram of cocaine would be double bagged. More significantly, 

this issue would have been appropriate for argument, but would not have presented a

viable basis for a motion to suppress based on an alleged Fourth Amendment violation. 

Accordingly, counsel’s performance was not constitutionally deficient, and Defendant is

not entitled to relief.

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CONCLUSION

For all of the foregoing reasons, the court finds that Defendant has failed to show

that he is entitled to relief pursuant to 28 U.S.C. § 2255. Nor has he shown that an

evidentiary hearing is warranted. Therefore Defendant’s motion should be denied in 

its entirety.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that “[t]he

district court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant,” and if a certificate is issued “the court must state the specific

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

notice of appeal must still be filed, even if the court issues a certificate of appealability. 

Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial of

a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000)

(explaining how to satisfy this showing) (citation omitted). Therefore, it is also

recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” If there is an objection to this recommendation by either party, that party may

bring this argument to the attention of the district judge in the objections permitted to

this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

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1. The motion to vacate, set aside, or correct sentence (Doc. 140) should be

DENIED.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 15 day of April, 2015. th

 s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen days after being served a copy thereof. Any different

deadline that may appear on the electronic docket is for the court’s internal use

only, and does not control. A copy of objections shall be served upon all other

parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th

Cir. 1988).

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