Page 1 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

 vs. Case Nos.: 3:10cr67/RV/EMT

3:14cv28/RV/EMT

FRANCISCO TORRES-RODRIGUEZ

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 (ECF No. 337). The Government 

filed a response (ECF No. 351), and Defendant filed a reply (ECF No. 355). The 

case was referred to the undersigned for the issuance of all preliminary orders and 

any recommendations to the district court regarding dispositive matters. See N.D. 

Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a 

careful review of the record and the arguments presented, it is the opinion of the 

undersigned that Defendant has not raised any issue requiring an evidentiary hearing 

and that the § 2255 motion should be denied. See Rules 8(a) and (b), Rules 

Governing Section 2255 Cases. 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 1 of 26
Page 2 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

PROCEDURAL BACKGROUND

On June 15, 2010, Defendant and five others were charged in a six-count 

indictment with drug, immigration, and weapons offenses (ECF No. 34). 

Defendant was charged in Count One with conspiracy to distribute and possess with 

intent to distribute five kilograms or more of cocaine, and in Count Two with 

possession with intent to distribute 500 grams or more of cocaine on a date certain 

(id.) The court scheduled a change of plea hearing, and a written statement of facts 

is in the record, but Defendant ultimately exercised his right to a jury trial along with 

co-defendants Alejandrino Popoca and Juan Jalomo-Ruiz (ECF Nos. 110, 111, 120, 

121). Retained counsel John L. Wilkins represented Defendant at trial. On the 

third day of trial, by special verdict the jury found Defendant guilty of conspiracy to 

distribute at least five kilograms of cocaine, and possession with intent to distribute 

at least 500 grams of cocaine (ECF No. 151). 

Defendant’s Presentence Investigation Report (“PSR”) (ECF No. 186)

described him as the nephew of co-defendant Popoca and as a driver or courier in a 

large cocaine distribution ring in the Northern District of Florida (ECF No. 186, PSR 

¶¶ 13, 20, 39). Defendant and co-defendants Jalomo-Ruiz and Popoca were 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 2 of 26
Page 3 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

arrested when they traveled together to investigate the purported disappearance of 

another of Popoca’s couriers. Information was obtained from numerous 

individuals who had contact or dealings with the conspiracy (ECF No. 186 at 6–8). 

This information was used to determine the scope of the conspiracy, as well as the 

roles of the participants and the quantity of drugs attributable to each. Defendant 

was held accountable for 12 kilograms of cocaine (ECF No. 186, PSR ¶¶ 41, 54). 

The base offense level for between 5 and 15 kilograms of cocaine is 32, and after a 

two-level adjustment for possession of a dangerous weapon, Defendant’s total 

offense level was 34 (ECF No. 186, PSR ¶¶ 54–63). Defendant, who was 22 years 

old at the time his PSR was prepared, had no criminal history, so his criminal history 

category was I (ECF No. 186, PSR ¶¶ 66–67). The applicable guidelines range was 

151 to 188-months imprisonment (ECF No. 186, PSR ¶ 90). 

On December 9, 2010, the court sentenced Defendant to 162-months 

imprisonment on Counts One and Two, to run concurrently, followed by concurrent 

terms of five years of supervised release (ECF Nos. 191, 195, 196, 263). The court 

stated that this sentence was at the lower part of the Guidelines range to take into 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 3 of 26
Page 4 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

account some mitigating factors, such as Defendant’s lack of criminal history (ECF 

No. 263 at 15–16).

Defendant appealed, represented by retained counsel Clifford L. Davis (ECF 

Nos. 246, 247, 249). He challenged the sufficiency of the evidence with respect to 

Count Two, and he alleged district court error in enhancing his sentence for 

possession of a firearm (ECF No. 306 at 4). The Eleventh Circuit affirmed 

Defendant’s conviction and sentence, finding, without discussion, that his claims 

lacked merit (ECF Nos. 306, 307 at 6–7). 

Defendant timely filed the instant motion to vacate raising seven grounds for 

relief. The Government opposes the motion in its entirety.

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 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 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 4 of 26
Page 5 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

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). ARelief 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 Afundamental 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 Ahas 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. 

Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); 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 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 5 of 26
Page 6 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

whether a particular claim has been previously raised. Sanders v. United States, 

373 U.S. 1, 16 (1963) (Aidentical grounds may often be proved by different factual 

allegations . . . or supported by different legal arguments . . . or couched in different 

language . . . or vary in immaterial respects@). 

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

appeal, 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 

A>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 Aactually 

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 Asome objective 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 6 of 26
Page 7 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

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); United 

States v. Campo, No. 14-15541; 2016 WL 6518520 n.5 (11th Cir. Nov. 1, 2016). 

In order to 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.

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 7 of 26
Page 8 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (A[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 Awhether 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 

examine counsel=s performance in a highly deferential manner and Amust 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, 1315B16 (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 Anot 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 U.S. at 689. To show 

counsel=s performance was unreasonable, a defendant must establish that Ano 

competent counsel would have taken the action that his counsel did take.@ Gordon 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 8 of 26
Page 9 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 

218 F.3d at 1315. “[T]he fact that a particular defense ultimately proved to be 

unsuccessful [does not] demonstrate ineffectiveness.” Chandler, 218 F.3d at 1314. 

When reviewing the performance of an experienced trial counsel, the presumption 

that counsel=s conduct was reasonable is even stronger, because A[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. AThe 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 Aoutcome 

determination,@ however, is insufficient; A[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 Athat counsel=s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 9 of 26
Page 10 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

is reliable.@ Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or 

in the case of alleged sentencing errors, a defendant must demonstrate that there is a 

reasonable probability that, but for counsel=s errors, the result of the proceeding 

would have been less harsh due to a reduction in the defendant=s offense level. 

Glover v. United States, 531 U.S. 198, 203–04 (2001). A significant increase in 

sentence is not required to establish prejudice, as Aany amount of actual jail time has 

Sixth Amendment significance.@ Id. at 203.

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 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)).

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 10 of 26
Page 11 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

Finally, the Eleventh Circuit has recognized that given the principles and 

presumptions set forth above, Athe 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). AEven 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)). The Sixth Circuit has framed 

the question as not whether counsel was inadequate, but rather whether counsel=s 

performance was so manifestly ineffective that Adefeat was snatched from the hands 

of probable victory.@ United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). 

Regardless of how the standard is framed, under the prevailing case law it is 

abundantly clear that a moving defendant has a high hurdle to overcome to establish 

a violation of his constitutional rights based on his attorney=s performance. A 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 11 of 26
Page 12 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

defendant=s belief that a certain course of action that counsel failed to take might 

have helped his case does not direct a finding that counsel was constitutionally 

ineffective under the standards set forth above. 

An evidentiary hearing is unnecessary when Athe motion and files and records 

conclusively show that the prisoner is entitled to no relief.@ See 28 U.S.C. 

' 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); 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 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. 

See WinthropBRedin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) 

(explaining that Aa district court need not hold a hearing if the allegations [in a ' 2255 

motion] are . . . based upon unsupported generalizations@) (internal quotation marks 

omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 12 of 26
Page 13 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

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

hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues 

can be resolved by the court without a hearing. 

Grounds One and Two—Failure to Challenge Arrest and Search

In his first two grounds for relief, Defendant contends that counsel was 

constitutionally ineffective because he did not challenge either the arrest warrant or 

the search warrant in this case. 

Defendant was arrested on May 23, 2010. Juan Jalomo-Ruiz was the driver 

of a Nissan pick-up truck transporting Defendant and Rodriguez-Popoca to Tego’s 

Barbershop for a meeting with a Source of Information (“SOI”). The meeting 

pertained to the purported failure of one of Popoca’s drug couriers to appear at a 

designated location with the two kilograms of cocaine the SOI had ordered. When 

the vehicle arrived at the barbershop, law enforcement, including marked units, 

attempted to block the vehicle in. The occupants tried to flee in their vehicle but 

ultimately surrendered. Immigration and Customs Enforcement agents questioned 

all three men in Spanish and determined that they were illegal aliens. 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 13 of 26
Page 14 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

A criminal complaint was filed in the instant case on May 25, 2010, and 

Defendant made an initial appearance in this court on June 3, 2010, at which time 

he was detained without bond. He first contends that his trial attorney was 

ineffective for failing to challenge the affidavit in support of the arrest warrant (ECF 

No. 2) because the information in possession of law enforcement pertained almost 

exclusively to co-defendant Popoca, because Defendant was not the driver, and

because, Defendant claims, he had committed no crime.

The Government concurs with Defendant’s description of Special Agent 

Humphreys’ affidavit as focusing on the activities of Alejandrino Popoca, who was 

the leader of the conspiracy (ECF No. 2). However, under the totality of the 

circumstances, the fact that Defendant was a passenger in the vehicle which was 

found to contain two other illegal aliens and two loaded firearms, and was traveling 

to meet an individual with knowledge about the disappearance of a driver 

transporting two kilograms of cocaine, was sufficient to support a finding of 

probable cause. Such a finding requires only that a reasonable person would have 

believed that probable cause existed had he known all of the facts known by the 

officer. See Rankin v. Evans, 133 F.3d 1425, 1434–35 (11th Cir. 1998). 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 14 of 26
Page 15 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

“Probable cause is judged not with clinical detachment but with a common sense 

view to the realities of normal life.” Lorenzo v. City of Tampa, 259 F. App’x 239, 

242 (11th Cir. 2007) (quoting Rankin, 133 F.3d at 1436). In this case there was 

abundant evidence of Popoca’s involvement in drug dealing from consensually 

monitored telephone conversations (see ECF No. 2). Despite the fact that 

Defendant was not mentioned by name, his presence on the mission to meet with the 

SOI about a missing courier and his two kilograms of cocaine was significant. 

And, despite Defendant’s assertions to the contrary, Agent Humphreys noted in his 

affidavit that the confidential informant (“CI”) who provided information about 

Popoca’s activities had provided information in the past that the agent had 

independently corroborated, thus attributing to the CI a certain measure of reliability 

(ECF No. 2 at 4). 

Defendant’s former trial counsel, John Wilkins, submitted an affidavit in 

response to Defendant’s accusations of ineffectiveness. Mr. Wilkins notes that 

under the totality of the circumstances, “there was no probability, much less 

possibility, probable cause would not be found that the Defendant had committed a 

crime against the United States Government” (ECF No. 351-2 at 1). The

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 15 of 26
Page 16 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

undersigned concurs, and also notes that the Magistrate Judge’s finding of probable 

cause was supported by the fact that a Grand Jury returned a True Bill of Indictment 

against Defendant (see ECF No. 351-2 at 1; ECF No. 34). 

The law is well-established that counsel is not ineffective for failing to 

preserve or argue a meritless claim. Denson v. United States, 804 F.3d 1339, 1342 

(11th Cir. 2015) (citing Freeman v. Attorney General, Florida, 536 F.3d 1225, 1233 

(11th Cir. 2008)). This is true regardless of whether the issue is a trial or sentencing 

issue. See, e.g., Sneed v. Florida Dep=t of Corrections, 496 F. App=x 20, 27 (11th

Cir. 2012) (failure to preserve meritless Batson claim not ineffective assistance of 

counsel); Lattimore v. United States, 345 F. App=x 506, 508 (11th Cir. 2009) 

(counsel not ineffective for failing to make a meritless objection to an obstruction 

enhancement); Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel 

not ineffective for failing to raise issues clearly lacking in merit); Chandler v. Moore, 

240 F.3d 907, 917 (11th Cir. 2001) (counsel not ineffective for failing to object to 

Ainnocuous@ statements by prosecutor, or accurate statements by prosecutor about 

effect of potential sentence); Meeks v. Moore, 216 F.3d 951, 961 (11th Cir. 2000) 

(counsel not ineffective for failing to make meritless motion for change of venue); 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 16 of 26
Page 17 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995) (counsel need not pursue 

constitutional claims which he reasonably believes to be of questionable merit); 

United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (no ineffective 

assistance of counsel for failing to preserve or argue meritless issue). Counsel was 

not constitutionally ineffective here for his decision not to challenge the arrest as 

lacking in probable cause.

Defendant next contends that trial counsel was ineffective for failing to file a 

motion to suppress the evidence seized as a result of the stop outside the Tego 

Barbershop where Popoca had arranged to meet the SOI. Defendant contends there 

was no reason to conduct a stop because there was no reasonable suspicion to believe 

a crime had just occurred and that he was armed and dangerous. Thus, he asserts, 

counsel was constitutionally ineffective for failing to challenge the stop, search, and 

seizure on May 23, 2010. 

When counsel=s alleged ineffectiveness involves a failure to litigate or 

competently litigate a Fourth Amendment claim, in order 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 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 17 of 26
Page 18 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 

(1986); Green v. Nelson, 595 F.3d 1245, 1251–52 (11th Cir. 2010). Regardless of 

whether a defendant=s guilt is established by the excludable evidence, the proper 

question is whether the outcome of 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).

Defendant’s suggestion that counsel was constitutionally ineffective for his 

failure to challenge law enforcement’s stop of the Nissan pick-up truck on the night 

of May 23, 2010, is without merit. Counsel could not have made a good-faith claim 

that law enforcement did not have probable cause to stop the vehicle. Law 

enforcement had evidence obtained from consensually monitored conversations

about Popoca’s drug activity and the reason for his meeting with the SOI and thus 

had probable cause to stop the vehicle in which Defendant was riding, even before 

it attempted to flee from law enforcement, and struck two law enforcement vehicles 

in the process. Counsel was not constitutionally ineffective for failing to make a 

baseless motion. 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 18 of 26
Page 19 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

Ground Three―Failure to Move for Judgment of Acquittal 

Defendant contends that trial counsel was ineffective for failing to move for a 

judgment of acquittal at the close of the Government’s case and renew that motion 

at the close of all the evidence, claiming that the Government did not meet its burden 

of proof. Contrary to Defendant’s assertion, counsel did move for a judgment of 

acquittal in both instances, but his request was denied (ECF No. 255 at 155–57, 178). 

The court noted that the evidence was sufficient for the jury to find guilt as to all 

defendants who had proceeded to trial, if it chose to do so (ECF No. 255 at 156–57). 

Furthermore, the court notes that the Eleventh Circuit found that Defendant’s 

challenge to the sufficiency of the evidence with respect to Count Two, possession 

with intent to distribute, was meritless, and did not even warrant discussion (ECF 

No. 306). Defendant is not entitled to relief.

Ground Four—Failure to Object to Jury Instruction

Defendant next contends counsel was constitutionally ineffective because he 

failed to object to the district court using a new pattern jury instruction, which 

resulted in him being convicted of a crime for which he had not been indicted. 

Although none of the attorneys raised any objections to the jury instructions, 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 19 of 26
Page 20 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

including Defendant’s counsel, the instruction of which Defendant now complains 

did not pertain to him.

In the record excerpt supplied by Defendant, the court references an 

instruction that “sets out three separate ways instead of two separate ways that the 

new pattern instruction describes” (ECF No. 255 at 179). This description 

corresponds to the court’s instruction on Count III, which relates only to codefendant Popoca (ECF No. 145 at 15–16). Defendant’s attorney would have had 

no reason or basis to make an objection to an instruction that was inapplicable to his 

client, and thus Defendant is not entitled to relief on Ground Four. 

Grounds Five and Six—Failure to Object to PSR

Defendant’s fifth and sixth grounds for relief relate to objections he maintains 

counsel should have made to the PSR. Defendant contends that trial counsel failed 

to challenge the guideline range and drug quantity, as well as the § 2D1.1(b)(1) 

enhancement. 

To the extent Defendant wishes to argue that his base offense level should 

have been lower than 32 because the offense conduct did not involve more than five 

kilograms of cocaine, his assertion is directly contradicted by the jury’s verdict. 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 20 of 26
Page 21 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

The jury found beyond a reasonable doubt that the conspiracy involved at least five 

kilograms of cocaine (ECF No. 151). Counsel was not constitutionally ineffective 

for failing to assert that Defendant’s base offense level should have been lower than 

32. 

Next, Defendant asserts that counsel should have filed a written objection 

challenging the application of the § 2D1.1(b)(1) enhancement for possession of a 

firearm. This adjustment was applied based on law enforcement’s seizure of two 

firearms from the vehicle in which Defendant was traveling on the date of his arrest. 

The PSR notes that there was no evidence to suggest that firearms were carried on 

previous drug shipments, but that in this instance, the loaded firearms were present 

when the three men traveled from Alabama to Pensacola to investigate the status of 

a missing drug courier (ECF No. 186, PSR ¶ 47).

As recognized by the Eleventh Circuit, “guns and drugs go together.” 

United States v. Gray, 544 F. App’x 870, 889–90 (11th Cir. 2013) (citing United 

States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011)). Application of the 

enhancement does not require that Defendant personally have possessed a weapon; 

co-conspirator possession will suffice. United States v. Pham, 463 F.3d 1239, 1245 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 21 of 26
Page 22 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

(11th Cir. 2006) (citing United States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 

2005)). The enhancement applies to a co-conspirator, such as Defendant in this 

case, when the Government establishes by a preponderance of the evidence that “(1) 

the possessor of the firearm was a co-conspirator, (2) the possession was in 

furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at 

the time of possession, and (4) the co-conspirator possession was reasonably 

foreseeable by the defendant.” Id. Application note 11 to U.S.S.G. § 2D1.1(b)(1) 

provides that the enhancement “should be applied if the weapon was present, unless 

it is clearly improbable that the weapon was connected with the offense.” Under 

the circumstances of this case, it was not at all “improbable” that Popoca’s 

possession of the weapon was related to the charged conspiracy. Counsel was not 

constitutionally ineffective for his failure to make a meritless objection. 

Ground Seven—Failure to Comport with Alleyne v. United States

Defendant contends that his conviction and sentence did not comport with the 

rule in Alleyne v. United States, 133 S. Ct. 2151 (2013), that any fact that increases 

the statutory mandatory minimum must be submitted to the jury and proven beyond 

a reasonable doubt. Defendant maintains that his sentence violates Alleyne in two 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 22 of 26
Page 23 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

respects. First he asserts that the jury found him liable for 500 grams of cocaine, 

and that it was improper for the court to hold him accountable for 12 kilograms. 

Second, he contests the two-level adjustment for possession of a firearm pursuant to 

U.S.S.G. § 2D1.1(b)(1) absent a jury finding on this issue.

For two reasons, Defendant is not entitled to relief. First, Alleyne adopted a 

new constitutional rule of criminal procedure and it is not retroactively applicable to 

cases on collateral review. See In re Sams, 830 F.3d 1234, 1241–42 (11th Cir. 

2016) (neither the Supreme Court nor the Eleventh Circuit has held that Alleyne is 

retroactively applicable on collateral review); Jeanty v. Warden, FCI Miami, 757 

F.3d 1283, 1285 (11th Cir. 2014) (holding that Alleyne does not apply retroactively 

such that a prisoner seeking relief can meet the five-part 18 U.S.C. § 2255(e) savings 

clause test); United States v. Harris, 741 F.3d 1245, 1250 n.3 (11th Cir. 2014) 

(noting that Alleyne was decided in the context of a direct appeal and the Supreme 

Court has not expressly declared it to be retroactive on collateral review). 

Defendant’s claim also fails because even if Alleyne were applicable, the rule 

announced therein would not afford Defendant any relief. The jury found, by 

special verdict, that the conspiracy charged in Count One involved at least five 

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 23 of 26
Page 24 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

kilograms of cocaine (ECF No. 151). This finding triggered the application of the 

statutory mandatory minimum of ten years found in 21 U.S.C. § 841(b)(1)(A). 

Based on the jury’s finding of 500 grams or more of cocaine with respect to Count 

Two, Defendant was also subject to a five-year mandatory minimum term of 

imprisonment, as well as a maximum penalty of forty years. 21 U.S.C. 

§ 841(b)(1)(B). Neither mandatory minimum came into play, as Defendant’s 

guidelines range fell within the statutorily prescribed ranges. Furthermore, the twolevel guidelines adjustment for a co-conspirator’s possession of a firearm had no 

bearing upon on the statutory mandatory minimum. Defendant’s sentence is not 

constitutionally infirm after Alleyne, and he is not entitled to relief. 

Conclusion

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

show that any of the claims raised in his motion to vacate, set aside, or correct 

sentence pursuant to 28 U.S.C. § 2255 have merit. Nor has he shown that an 

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

in its entirety.

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 24 of 26
Page 25 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

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 that:

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 25 of 26
Page 26 of 26

Case Nos.: 3:10cr67/RV/EMT; 3:14cv28/RV/EMT

1. The motion to vacate, set aside, or correct sentence (ECF No. 337) be 

DENIED.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 13th day of January 2017.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be 

filed within fourteen (14) 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. If a party fails to object to the magistrate judge's findings or 

recommendations as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal the district 

court's order based on the unobjected-to factual and legal conclusions. See 

11th Cir. Rule 3-1; 28 U.S.C. § 636.

Case 3:10-cr-00067-RV-EMT Document 433 Filed 01/13/17 Page 26 of 26