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Case Nos.: 4:10cr39/RH/CAS; 4:14cv82/RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:10cr39/RH/CAS

4:14cv82/RH/CAS

LAWRENCE BERRY, JR.,

Defendant.

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant Lawrence Berry, Jr.’s,

second amended motion to vacate, set aside, or correct sentence pursuant 

to 28 U.S.C. § 2255 and memorandum in support thereof. (ECF Nos. 138, 

139). The Government has filed a response (ECF No. 143) and Petitioner

has filed a reply. (ECF No. 150). 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 Petitioner has not raised any issue 

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requiring an evidentiary hearing and that the § 2255 motion should be 

denied. See Rules Governing Section 2255 Cases 8(a) and (b). 

PROCEDURAL BACKGROUND

On July 7, 2010, Lawrence Berry, Jr., and Carlos Lofton were 

charged in a superseding indictment with conspiracy to distribute and 

possess with intent to distribute more than five kilograms of cocaine

(“Count One”), possession of more than 500 grams of cocaine on May 3, 

2010 (“Count Two”), and possession of firearms in furtherance of drug 

trafficking crimes (“Count Three”), and Defendant Berry was charged with 

possession of a firearm by a convicted felon (“Count Four”). (ECF No. 

18). Lofton was acquitted after a jury trial in October of 2010. According 

to the PSR, Berry’s attorney told him that he had been federally indicted in 

July of 2010, however, he was a fugitive until his arrest in Miami in

December of 2010. (ECF No. 56). 

Defendant was represented by Paul M. Villeneuve and Gary Ira 

Rosenberg. The Government moved to disqualify Attorney Villeneuve, 

and after a March 31, 2011, hearing, the parties reached a stipulation. 

(ECF Nos. 63, 66). The Government filed a notice of its intent to seek 

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enhanced penalties on the same date. (ECF No. 65). After a two day 

jury trial which concluded on April 4, 2011, a jury found Defendant guilty as 

charged. (ECF No. 84).

According to the final Presentence Investigation Report (“PSR”), 

Defendant’s adjusted offense level on Counts One, Two, and Four was 26, 

and he had a criminal history category of II. (ECF No. 90). The 

applicable guidelines range of 70 to 87 months became 120 months due to 

the application of the statutory mandatory minimum enhanced sentence. 

Count Three carried a mandatory five year term of imprisonment. The 

court sentenced him to a total term of 180 months imprisonment and eight 

years of supervised release. (ECF Nos. 101, 102). Defendant filed a 

letter to the court complaining about unspecified sentencing issues which 

the court construed as a motion for reconsideration of sentence and 

denied. (ECF Nos. 104, 105).

Defendant appealed, challenging the sufficiency of the evidence and 

the district court’s exclusion from evidence of the post-arrest statements of 

co-conspirator Lofton. The Eleventh Circuit found that there was sufficient 

evidence to support his convictions, and with respect to admission of the 

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statements, there was no error, and even if there were, it was harmless 

error. (ECF No. 117). Defendant also challenged the district court’s 

enhancement of his sentence based on a drug conviction incurred more 

than 25 years prior, and that was based on conduct that occurred when he 

was a minor. Again, the Eleventh Circuit found no error and affirmed his 

convictions and sentence. 

Defendant filed his initial motion to vacate pursuant to the prison 

mailbox rule1 on February 11, 2014, raising five grounds for relief. (ECF 

No. 129 at 27). Defendant claims therein that the motion is timely filed 

because it was filed within one year and ninety days from the date the 

Eleventh Circuit affirmed his convictions. He notes that although he did 

not file a petition for certiorari, he was then seeking leave to file an out of 

time petition. (ECF No. 129 at 3). Defendant’s motion to vacate would 

have been subject to dismissal due to his continued pursuit of direct review, 

 1 A pro se inmate=s pleading is deemed filed at the time it is placed in the prison mailbox or 

delivered to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266 (1988) (holding that a pro 

se inmate=s notice of appeal was filed as of the time he placed it in the prison mailbox, thus creating the 

Aprison mailbox rule@); Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (under the >prison 

mailbox rule,= a pro se prisoner=s court filing is deemed filed on the date it is delivered to prison authorities 

for mailing); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (absent evidence to the 

contrary, court assumes that a pro se petition is delivered to prison authorities for mailing the date it was 

signed). 

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but the Supreme Court denied certiorari while the motion to vacate was 

pending. (ECF No. 134). Defendant later filed a second amended 

motion to vacate (“motion”) and memorandum in support thereof. It is this 

motion, in which Defendant raises six grounds for relief, which is currently 

pending before the court. 

STATEMENT OF FACTS2

In April of 2010, the Tallahassee Police Department (“TPD”) was

contacted by an informant who alleged that Defendant Lawrence Berry, Jr.,

was bringing multiple kilograms of cocaine to Tallahassee every couple 

weeks, and that Carlos Lofton, co-defendant in this case, was his primary 

distributor in Tallahassee. The informant provided Defendant’s telephone 

number and the address of a townhouse, which had allegedly been rented 

for him by Lofton. Shortly thereafter the informant was murdered in 2010 

over a drug transaction unrelated to this case. Investigators believed that 

Defendant was sexually involved with the informant’s girlfriend, which

provided the informant the incentive to report Defendant’s activities to law 

enforcement.

 

2 The statement of facts is derived largely from the facts as set forth in the PSR. (ECF No. 90). 

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Investigators determined that Lofton had obtained utilities on two 

townhouses in Tallahassee on Diehl Drive and Bradford Court. Using 

GPS tracking of a cellular telephone belonging to Defendant, investigators 

determined that Defendant was traveling from his home in Miami toward 

Tallahassee at the end of April 2010.

On May 1, 2010, investigators conducting surveillance on a Ford F350 owned by Defendant at the Diehl Drive residence observed Defendant 

and Karl Lofton, the father of co-defendant Carlos Lofton, taking several 

pieces of luggage into the apartment.

No surveillance was conducted on May 2, but on May 3, investigators 

observed Defendant leave the Diehl Drive residence and drive to a Sprint 

store in Tallahassee, where he met co-defendant Lofton. After they were 

in the store for an hour, officers observed Lofton leave in his vehicle and an 

unobserved individual drove Defendant’s truck to a nearby dumpster and

toss a white bag into the dumpster. Items in bags retrieved from the 

dumpster included a box for a set of digital scales disguised as a CD case, 

a pair of latex gloves, several ziplock bags, the top removed from a ziplock 

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bag, a plastic spoon and wet paper towels which had a strong smell of 

cocaine and field tested positive for the substance.

On the same date, a search warrant was executed at the Diehl Drive 

residence. Investigators found Defendant, Carlos Lofton and Davon 

Berry, Defendant’s nephew. The door locks had been changed from the 

landlord’s locks, and only Defendant and his nephew had keys to the 

residence. 

In the living room, investigators recovered digital scales matching the 

box in the dumpster trash, as well as a Romanian assault rifle with a loaded 

30 round clip, in a pillowcase on the fireplace hearth about ten feet from 

where Defendant was sitting on the sofa.

The first, smaller bedroom was furnished only with an air mattress 

and a pallet on the floor with some clothes on the closet. A tag on the 

single black duffle bag found in this room bore the name of Davon Berry. 

A four-ounce bag of cutting agents was found in the top of the closet and 

had a fingerprint later determined to belong to Davon Berry.

The second, larger bedroom was furnished with a full-sized bed with 

mattress and box springs, sheets, pillow and covers and a dresser. There 

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was more clothing stored in this room, all in sizes XXXL, consistent with 

Defendant’s size. There were also documents in the room bearing 

Defendant’s name or his nickname “Rome.” Three black duffle bags were 

recovered from this room.

On the kitchen counter, officers found four inserts for the digital 

scales/CD case where one side appeared to be a music label and the other 

contained operating instructions for the scale. The inserts were lying atop 

correspondence addressed to Defendant. The counter also held backing 

powder, which was consistent with law enforcement’s hypothesis that the 

wet paper towels had been used to dry crack cocaine.

When investigators removed a loose portion of the press-board 

paneling near the stove’s exhaust fan, they discovered 730.2 grams of 72% 

pure cocaine in three bags. They also recovered $15,600 in cash, 

bundled into $1000 stacks with rubber bands. Several bags of similar 

rubber bands were located in the dresser in the larger bedroom.

Defendant had $382 on his person and $677 in his vehicle. Neither 

Lofton nor Davon Berry had any significant sum of money. 

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Officers recovered 14 or 15 tops of ziplock bags from the kitchen 

trash that were the same size as the bags containing the cocaine in 

approximately quarter kilograms amounts. The bag tops, which were the 

same size as the tops found in the dumpster trash were found to be tainted 

with cocaine. A drug-trained canine later alerted to each of the four black 

duffel bags, including the three taken from Defendant’s bedroom and to the 

monies taken from his person and his vehicle.

Defendant allegedly told investigators that he was in Tallahassee 

seeking sex with women other than his wife. He was arrested on state 

charges and released on bond on May 5, 2010.

Investigators executed a second search warrant at the Bradford Court 

residence and discovered another assault rifle, residue amounts of 

cocaine, drug paraphernalia and another bag of cutting agent. A different 

jury acquitted Lofton of the charges against him.

One of Defendant’s attorneys, Villeneuve, advised Defendant that he 

had been federally indicted on July 7, 2010. Defendant refused to turn 

himself in and was arrested in Miami, Florida, on December 15, 2010. 

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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 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 . . . .@ 

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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 

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@). 

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 1234B35; Bousley 

v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 

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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 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. 

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Franklin, 694 F.3d, 1, 8 (11th Cir. 2012). 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). Strickland=s two part test also applies to 

guilty pleas. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (citing Hill v. 

Lockhart, 474 U.S. 52, 58 (1985)). A defendant=s Aafter the fact testimony 

concerning his desire to plead, without more, is insufficient to establish@

prejudice. Pericles v. United States, 567 F. App=x 776, 782 (11th Cir. 

2014) (quoting Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)); 

Rosin v. United States, 786 F.3d 873 (11th Cir. 2015). A defendant must 

Aconvince the court that a decision to reject the plea bargain would have 

been rational under the circumstances.@ Padilla v. Kentucky, 559 U.S. 

356, 372 (2010). The Sixth Amendment right to the effective assistance of 

counsel extends specifically Ato the negotiation and consideration of plea 

offers that lapse or are rejected.@ In re Perez, 682 F.3d 930, 932 (11th

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Cir.2012) (citing Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 

132 S.Ct. 1376 (2012)). A defendant who claims that ineffective advice 

led him to reject a plea offer must show that but for ineffective assistance of 

counsel, he would have accepted the plea, and that the conviction or 

sentence or both under the terms of the plea offer would have been less 

severe than under the judgement and sentence that were imposed. 

Lafler, 132 S.Ct. at 1385. A defendant=s insistence that he is innocent is a 

Arelevant consideration@ that Amakes it more difficult to accept his claim@

that he would have agreed to a plea deal. See Osley v. United States, 

751 F.3d 1214, 1224B25 (11th Cir. 2014). 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) (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 

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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 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 

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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, 369B70 (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 is reliable.@ Lockhart, 506 U.S. at 369 (quoting 

Strickland, 466 U.S. at 687). Or in the case of alleged sentencing errors, 

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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, 203B04 (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, 1406B07 (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, 1333B34 

(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, Athe cases in which habeas petitioners 

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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 

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

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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 affidavits that amount to nothing more than conclusory 

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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. 

Ground One

Defendant first contends that his sentence violates the retroactively 

applicable rulings in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and 

Descamps v. United States, 133 S. Ct. 2276 (2013). Defendant asserts 

that the application of the 21 U.S.C. § 851 enhancement was improper 

because his prior state court drug conviction involved only a small amount 

of marijuana that would not have been a felony under federal law. 

In Moncrieffe, the Supreme Court held that an alien’s Georgia state 

conviction for possession of marijuana with intent to distribute was not an 

aggravated felony under the Immigration and Nationality Act (“INA”). In 

order to be an aggravated felony under the INA, the underlying conviction 

necessarily had to be for conduct punishable under federal law. The 

Court noted that the fact of a Georgia conviction did not reveal whether 

either remuneration or more than a small amount of marijuana was 

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involved. Moncrieffe was tasked only with the definition of aggravated 

felony as used in the INA. 

In Descamps, the Supreme Court refined the process by which courts 

may determine whether a past conviction meets the definition of “violent 

felony” under the Armed Career Criminal Act (“ACCA”). Under the 

categorical approach, a court does not consider the facts of the case and 

only considers whether the state statute defining the crime of conviction 

categorically fits within the generic federal definition of a corresponding 

felony. The modified categorical approach may be used when a statute is 

divisible, that is, it lists a number of alternative elements or means of 

committing crime that effectively create several different crimes. In such 

instance, the sentencing court may look to the record of conviction, 

including documents involving the charge, plea agreement or sentence. 

Descamps held that sentencing courts may not apply the “modified 

categorical approach” to determine whether a prior offense was a violent 

felony under the ACCA, if the underlying conviction contains a single, 

indivisible set of elements. Neither Moncrieffe nor Descamps affords

Defendant any relief. 

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The facts as set forth in the PSR in Defendant’s case, to which there 

was no timely objection, unequivocally establish remuneration. United 

States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010) (defendant 

admits for sentencing purposes, the facts in the PSR to which he does not 

object) United States v. Davis, 587 F.3d 1300, 1303B04 (11th Cir. 2009) 

(per curiam). Law enforcement officers served a search warrant at a 

residence after making two controlled purchases of marijuana from 

Defendant, and prior to serving the warrant, they made yet another 

controlled buy. (ECF No. 90, PSR ¶ 48). Additionally, less than two 

weeks after this arrest, law enforcement officers observed Defendant make 

two sales of marijuana, before arresting him and discovering an additional 

25 baggies of marijuana on his person. (ECF No. 90, PSR ¶ 49). 

Defendant contends in his reply that the PSR’s reliance on 

information contained in a police report is improper. He relies upon United 

States v. Sneed, 600 F.3d 1326, 1333 (11th Cir. 2010), which held, citing 

Shepard v. United States, 544 U.S. 13, 23-26 (2005), that police reports 

may not be used to determine whether two offenses were committed on 

occasions different from each other. Defendant also argues that because 

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the conviction as described in the PSR differs from the conviction as 

described in the 851 notice, and because the PSR relied on information 

contained in police reports, the court must accept the characterization of 

the offense as described in the 851 notice for sentencing. He further 

argues that the court must find that his conviction rested on the least

serious of the offenses jointly listed in the 851 notice, to wit, possession 

with intent to distribute, which does not necessarily require remuneration. 

(ECF No. 150 at 9-11). Defendant’s insistence that the description of the 

conviction set forth in the Government’s § 851 notice is controlling is 

unsupported. 

Defendant also argues that his prior conviction should not have been 

used to enhance his sentence because, if charged under federal law, it

would have been only a misdemeanor under 21 U.S.C. § 844. Section 

844, however, is inapposite as it pertains only to “simple possession” and 

not sale or distribution. Furthermore, a felony drug offense, as defined in 

title 21 U.S.C. § 802(44) is “an offense that is punishable by imprisonment 

for more than one year under any law of the United States or of a State . . . 

that prohibits or restricts conduct relating to ... marihuana.” 21 U.S.C. 

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§ 802(44) (emphasis added). Thus, the prior offense need not have also 

been a felony under federal law to provide the basis for an enhancement. 

See United States v. Tremble, 933 F.2d 925 (11th Cir. 1991) (possession of 

cocaine); United States v. Hansley, 54 F.3d 709 (11th Cir. 1995) 

(possession of cocaine); United States v. Curry, 404 F. 3d 316 (5th Cir. 

2005) (possession of marijuana in state correctional facility). Defendant 

has appended copies of relevant police reports to his reply. The reports 

only serve to confirm his identity and that the arrests in question were for 

felonies, not misdemeanors. (ECF No. 150-3 at 17-19).

Defendant has not offered copies of his criminal judgments, although 

he submitted documents reflecting the state’s intent to direct file his case 

and prosecute him as an adult. (ECF No 150-3 at 14-15). In sum, he 

has not shown that he is entitled to relief on any of the arguments made 

within his first ground for relief.

Ground Two

Defendant contends that his conviction and sentence violate the 

retroactively applicable rulings in Lafleur v. Cooper, 132 S. Ct. 1376 (2012) 

and Missouri v. Frye, 132 S. Ct. 1399 (2012) because counsel misadvised 

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him of the benefits of accepting the Government’s plea offer before such 

offer expired. He maintains that he had been offered a favorable guilty 

plea “that excluded the § 924(c) offense.” (ECF No. 139 at 9). 

Defendant’s recollection of events is mistaken. As is well known in 

the district, the U.S. Attorney’s Office for the Northern District of Florida 

does not engage in plea bargaining. The Government further asserts in its 

response that there are written policies of the office providing that 

“mandatory consecutive sentences are no bargaining chips to be given 

away to avoid a trial.” (ECF No. 143 at 8). Defendant’s assertion in his

reply that his attorney(s) mentioned a ten-year plea, and then allowed it to 

expire before he could have accepted it is unpersuasive. Furthermore, a 

plea of guilty would have required Defendant to admit to the conduct 

charged in the indictment, which, to date, he has not done. Thus, his 

after-the-fact suggestion that he would have voluntarily accepted a plea 

deal does not entitle him to relief. 

Ground Three

Defendant asserts that one or both of his retained attorneys 

performed below minimum constitutional standard during pretrial, trial, 

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sentencing and appeal. He identifies several specific deficiencies, which 

will be addressed in turn herein.

First, he asserts that counsel should have filed a motion to suppress.

When counsel=s alleged ineffectiveness involves a failure to 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 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, 

1058B59 (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). 

Defendant contends that the affidavit submitted in support of the search 

warrant for 2406 Diehl Drive included “false, reckless and misleading 

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statements as well as intentionally omitted important statements or 

information as well as intentionally omitted important statements or 

information.” (ECF No. 139 at 10). Defendant offered only conclusory 

and unsupported statements in his initial motion, and explained neither 

which statements in the affidavit were “false, reckless and misleading,” nor 

the nature of the alleged omissions. The Government has submitted the 

entire search warrant and affidavit in support thereof as an attachment to 

its response. A review of these documents does not reveal any “red flags” 

that would have supported a viable motion to suppress. 

In his reply, Defendant asserts that the following material false 

statements were contained therein:

[Defendant] transports between five and fifteen kilograms of 

cocaine from the Miami area to Tallahassee on a regular basis. 

. . Berry has felony arrest for narcotics and robbery . . . 

Surveillance indicates that Lofton does not reside at either 

apartment (Diehl nor Bradford Court). Nor does it appear that 

full time residents occupy the apartments. . . . there was reason 

to believe that the four black duffle bags contained cocaine that 

was to be kept inside the rental property until Lofton could 

distribute it. 

(ECF No. 150 at 14).

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Some of the allegedly false information came from a confidential 

informant, and as reflected in the affidavit in support of the warrant, much 

of the information provided by the CI had been corroborated by law 

enforcement. (ECF No. 143-1 at 9-12). The information about 

Defendant’s prior arrest history was not inaccurate, as the PSR reflects two 

prior arrests, albeit no convictions for robbery. (ECF No. 90, PSR ¶¶ 60, 

63). Defendant suggests that there had been insufficient intelligence to 

conclusively establish the facts set forth in the affidavit, but this does not 

establish their falsity. Furthermore, law enforcement conclusions about 

the lack of inhabitants in the two apartments ultimately were shown to be 

true. Defendant has not carried his burden and he is not entitled to relief.

Next, Defendant contends that counsel failed to impeach law 

enforcement officers with prior inconsistent statements made at the earlier 

trial of co-defendant Lofton. 

Defendant asserts that Case Agent Nick Robert and Roger 

Salmonsen testified that they both witnessed Defendant “sigh” when the 

cocaine was found behind the wall inside the Diehl street residence. 

However, Defendant claims, during Lofton’s trial, both men testified that 

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they were outside the residence interviewing Lofton when the cocaine was 

discovered.

With respect to Agent Robert, Defendant is mistaken, as he did not 

testify about a “sigh.” At trial, after Salmonsen had given the testimony in 

question on direct examination, (ECF No. 98 at 254-255), on re-direct, the 

Government introduced a portion of the “Arrest Probable Cause Affidavit” 

which had been prepared contemporaneously with the events in question. 

In that report, prepared on May 3, 2010, Agent Salmonsen described 

Defendant’s reaction to the discovery of the contraband as “he slumped 

over, breathed a sigh, and faced away when investigators located the 

cocaine in the kitchen.” (ECF No. 98 at 265-266). Thus, regardless of 

what Salmonsen’s testimony may have been at Lofton’s trial, this 

contemporaneously prepared report bolstered the testimony he gave from 

his independent recollection. There was no basis to impeach either 

witness on this issue and counsel’s performance was not deficient.

Additionally, Defendant claims that Case Agent Roberts testified 

inconsistently with respect to the firearm seized from the living room of the 

Diehl street residence. Defendant maintains that Roberts testified during 

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Defendant Berry’s trial that the AK-47 assault rifle was exposed outside the 

pillowcase upon his entry into the Diehl street residence, while during 

Lofton’s trial, Robert had testified that it was not exposed, and it took a 

trained eye to detect the firearm. (ECF No. 98 at 282-283). A review of 

Roberts’ testimony reveals that Defendant’s recollection is mistaken. 

Roberts testified on direct examination that the firearm was on the hearth

about eight to ten feet from where Defendant Berry was sitting on the sofa

without commenting on how obvious or visible it was. (ECF No. 98 at 282-

83). On cross-examination, Attorney Rosenberg asked the witness about 

visible cocaine or money, and then asked if Defendant indicated that he 

knew there was a rifle in the living room. Counsel elicited no testimony 

about whether the gun was hidden or in plain view. (ECF No. 301-303, 

306). Because the testimony adduced at his trial was not as Defendant 

recalls it to have been, there was no basis for the suggested impeachment.

In his reply, Defendant expands his claims to assert that counsel 

should also have impeached a third officer, Officer Jason sen, who was not 

mentioned in the initial motion. (ECF No. 150 at 16-17). The 

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Government has not had the opportunity to respond to this portion of 

Defendant’s allegations, in light of their belated assertion. 

Agent Laursen’s testimony was that when he entered the Diehl street 

residence, he was able to observe what he believed to be a receiver of a 

long gun in a pillowcase on the hearth. (ECF No. 97 at 94). Although he 

testified that he did not have to move anything to make portions of the 

firearm visible, from his description, it was not completely in plain view. 

During Laursen’s testimony, the Government introduced into evidence 

photographs of the long gun inside the pillowcase as it appeared when law 

enforcement entered the room, as well as photos of the gun outside the 

pillowcase and the pillowcase itself. (ECF No. 97 at 95-97). Defendant 

asserts in his reply that Laursen should have been impeached with 

testimony Roberts gave during Lofton’s trial. Impeachment of Laursen 

with testimony from another witness about what the second witness

recalled observing, even if permissible, could not have carried more weight 

than the photographs introduced by the Government showing how the gun 

and pillowcase actually appeared. Defendant has not shown counsel was 

constitutionally ineffective. 

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Defendant next contends that his attorneys counsel failed to object to 

the Government’s presentation of false testimony. He asserts that Agent 

Corey Hale falsely testified that he had a train ticket from Miami to 

Jacksonville, Florida, in the name of Davon Berry, when actually the ticket 

was in the name of Avontae Beard, the mother of Berry’s child. (ECF No. 

139 at 12). 

On the first day of trial, Agent Hale was shown a series of exhibits 

comprised of documents seized from Defendant’s dresser at the Diehl 

street residence. The exhibits were offered to prove that Defendant used 

the master bedroom and to support the argument that he controlled the 

apartment and was responsible for the contraband found therein. Hale 

identified Government’s exhibit 30(d) as a bus or train ticket from Miami to 

Jacksonville. (ECF No. 97 at 149). He read the name on the ticket as 

“Davon Berry,” rather than Avontae Beard, who was the “mother of Berry’s 

child.”3 Even if the prosecution knowingly elicited false testimony in 

violation of Giglio v. United States, 405 U.S. 150 (1972), the testimony was 

 

3 The PSR reflects that Defendant has a child with “Avonte Beard” and thus he 

presumably refers to himself rather than Devon Berry.

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not only not material, but tangential at best. Ponticelli v. Sec'y, Florida 

Dep't of Corr., 690 F.3d 1271, 1292 (11th Cir. 2012). Furthermore, if in 

fact Agent Hale misspoke, the error inured to Defendant’s benefit as the 

link between Defendant and the documents would have been stronger had 

Hale testified that the ticket was in the name of Defendant’s child’s mother

rather than his nephew. Defendant has not shown that counsel was 

constitutionally ineffective for his failure to challenge Hale’s statement. 

Fourth, Defendant claims that counsel failed to object or challenge 

the Government’s use of his “sigh” as evidence of guilt. He also asserts 

that counsel should have requested an instruction that the “sigh” could be 

interpreted as an innocent gesture or a sign of surprise. This was a matter 

for argument (see ECF No. 98 at 373, 401), and counsel was not 

constitutionally ineffective for failing to object or request the proposed 

instruction. In his reply, Defendant claims that counsel should have crossexamined witnesses concerning the sigh. Such cross-examination, if 

intended to elicit the witnesses’ opinions concerning the reason for the

sigh, would have called for speculation and would not have been 

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admissible. Defendant does not suggest any specific information that 

would have been gleaned from such questioning. 

Fifth, Defendant contends that counsel’s failure to object to the 

prosecutor’s improper closing and rebuttal arguments or raise this matter 

on appeal was constitutionally deficient. He suggests that the 

Government improperly suggested that there was evidence which was not 

presented to the jury, and that Defendant was required to present evidence 

and argument in support of his defense. A review of the closing 

arguments reveals that this is not a fair characterization of the 

Government’s closing. 

Counsel’s job at closing is to argue to the jury that the position he or 

she advances, based on the evidence presented, is the correct one. 

Argument includes possible interpretations of the evidence and 

suggestions on how to connect the proverbial dots, so the entire scheme 

makes sense. The Government’s statement that Defendant worked at a 

port and therefore had access to supplies of cocaine merely suggested the 

possible genesis of the conspiracy. 

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Additionally, contrary to Defendant’s suggestion, the Government 

never stated that it was Defendant’s burden to prove anything; in fact it 

repeatedly acknowledged the Government’s burden. Assistant U.S. 

Attorney Simpson commented that there was no plausible alternative 

explanation beyond the Government’s interpretation of the evidence. He 

specifically referred, for instance, to the scent of cocaine on money in 

Defendant’s pocket and noted that “[defense] counsel didn’t even offer you 

a possibility.” (ECF No. 98 at 398-399). This is not tantamount to shifting 

the burden of proof or suggesting that Defendant was required to present 

evidence. Rather, the specific comment highlighted what the Government 

suggested was defense counsel’s inability to provide an innocent 

explanation, because none existed. 

Defense counsel did not stand silent during the closing arguments. 

When the Government misstated the evidence by arguing that Defendant’s 

truck smelled like cocaine, defense counsel promptly objected. (ECF No. 

98 at 401). In sum, the Government’s arguments, taken as a whole, were 

not improper and counsel’s performance was not constitutionally deficient.

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Defendant next contends that, in light of the fact that the drugs were 

not seized from his person, that defense counsel should have sought a jury 

instruction “on proof that Berry had knowledge of the drugs and firearms” in 

the house. The element of knowledge was repeatedly mentioned in the 

court’s instructions to the jury. (ECF No. 75). The jury was instructed 

that knowledge was required to establish a conspiracy (ECF No. 75 at 6-8); 

possession of cocaine (id. at 9), aiding and abetting (id. at 10), coconspirator liability (id. at 11), possession of a firearm in furtherance of drug 

trafficking (id. at 11-12), and possession of a firearm by a convicted felon 

(id. at 13-14). 

Counsel allegedly performed deficiently when they failed to challenge 

the § 851 enhancement as violating the rule announced in CarachuriRosendo v. Holder, 130 S. Ct. 2577 (2010). The definition of “aggravated 

felony” under the INA has no application to Defendant’s case, and counsel 

were not ineffective for failing to make this claim.

Defendant also contends that counsel should have challenged the 

§ 851 enhancement because it involved a “juvenile to adult proceeding.” 

Although Defendant was 16 at the time of the offense conduct, he was 

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prosecuted as an adult. (ECF No. 90, PSR ¶ 48). This issue was raised

at sentencing, at which time the district court cited several cases supporting 

the use of this conviction as a predicate for the enhancement. (ECF No. 

112 at 5-9). Furthermore, the Eleventh Circuit also found the use of the 

conviction as a predicate for the enhancement to be proper. (ECF No. 

117 at 10-11). Defendant is barred from relitigating herein issues that 

have been decided adversely to him and he is not entitled to relief.

Defendant’s ninth ineffective assistance of counsel claim is that 

counsel failed to challenge the § 851 enhancement on the basis that the 

notice itself was deficient because it provided inadequate notice due to a 

scrivener’s error with respect to the date of conviction. The Government’s

§ 851 notice states that “[o]n or about October 14, 1986, Lawrence Berry, 

Jr., was convicted of a charge of cannabis, sell/deliver/possess with intent, 

in the Circuit Court for Dade County, Florida, in case no. 84CF2057.” 

(ECF No. 65 at 2). October 14, 1986, was actually the date of the 

probation violation hearing; the conviction occurred over two years earlier 

on March 26, 1984. 

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Had counsel raised an objection, pursuant to 21 U.S.C. § 851(a)(1), 

the clerical mistake could have been amended at any time prior to the 

pronouncement of sentence. Defendant affirmed the conviction upon the 

court’s inquiry at sentencing. (ECF No. 112 at 4-5).

De minimis errors in contents of the § 851 notice will not render the 

notice inadequate, so long as the information “serves to signal 

unambiguously the Government’s intent to seek an enhancement based on 

a particular prior conviction.” Perez v. United States, 249 F.3d 1261, 1265 

(11th Cir. 2001) (citing cases); United States v. Bowden, Case No. 08-

11935, 2009 WL 32755, at *1 (11th Cir. Jan. 7, 2009). Defendant relies on 

Bowden in his reply, contending that strict compliance with the 

requirements of § 851 is required. Bowden, in which the court vacated a 

defendant’s sentence and remanded for resentencing, is distinguishable, in 

that the § 851 notice in question had two errors. In addition to the clerical 

error about the date, the notice also “did not unambiguously signal to 

Bowden that [the Government] sought mandatory life imprisonment” 

because the notice cited the incorrect statutory provision, which imposed 

only a ten-year mandatory minimum. Bowden, 2009 WL 32755 at *1. 

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Nothing in the record in this case suggests that Defendant or his counsel 

had any difficulty understanding which prior conviction was to be used for 

enhancement purposes, and Defendant has not shown how he was 

prejudiced by counsel’s failure to challenge the notice on this basis. Had 

counsel made an objection prior to sentencing, the scrivener’s error would 

have been corrected and no different result would have inured. 

Defendant next asserts that his attorneys were constitutionally

ineffective under Strickland, when they failed to call Davon Berry and the 

CI’s girlfriend, identified in his reply as Shayla Willis, as witnesses. He 

claims that these witnesses would have provided unspecified exculpatory 

testimony. In his initial motion, Defendant provided no information about 

the testimony these witnesses would have allegedly provided, or even the 

CI’s girlfriend’s name, and there was no way to assess the merit of his 

claim. In his reply, Defendant identified Ms. Willis and indicates that in 

addition to her and Davon Berry, he also asked counsel to call Avontae 

Beard and provides information about their purported testimony, none of 

which is under oath.

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Defendant asserts that Shayla Willis would have testified about her 

relationship with him, and unspecified information that she provided or 

shared with her boyfriend regarding Defendant “in an attempt to mislead 

him regarding” the Defendant. (ECF No. 150 at 28). The effect, if any, 

that this testimony could have had on the proceedings is not obviously 

apparent. Defendant has not shown that the failure to call Ms. Willis 

adversely affected the outcome of the proceedings. 

Davon Berry, contends Defendant, would have testified about his and 

Defendant’s presence in the townhouse on the day of the search, 

Defendant’s living and rental arrangements with Lofton, that he and 

Defendant had no knowledge of either the cocaine hidden in the wall of the 

townhouse or the firearm concealed in the pillowcase. (ECF No. 150 at 

29). As the Government noted in its response, Davon Berry was facing 

state charges stemming from this incident, so he would have been unlikely 

to testify. Furthermore, much of the purported testimony would have been 

hearsay and thus inadmissible. Finally, as noted earlier, the photograph 

of the long gun in the pillow case provided irrefutable evidence of what it 

looked like. Even the testimony of Agent Roberts at Lofton’s trial was that 

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the contents of the pillowcase were apparent because of how tightly it was 

wrapped. (See ECF No. 150 at 18-19). 

Defendant contends that Ms. Beard would have testified that the 

reason Defendant was in Tallahassee and frequently visiting Tallahassee 

was to spend time with her and his newborn baby. This presumably would 

have corroborated Defendant’s statement to law enforcement that he was 

in Tallahassee seeking sex outside of his marriage, although in the affidavit 

submitted with his reply he denies making this statement. (ECF No. 150-3 

at 7). Ms. Beard would also have testified that she had never seen 

Defendant in possession of drugs or a firearm, and that when she picked 

Defendant up from jail and took him to the Diehl residence to collect his 

personal property, Carlos Lofton provided her with the key to enter. The 

fact that Ms. Beard had not seen Defendant in possession of drugs or a 

firearm is not dispositive. Although she and Defendant had been in a 

relationship, he did not stay with her when he was in town. And, 

construed as character evidence, her testimony would have opened the 

door for the prosecution to introduce other evidence about Defendant’s 

character and criminal history. Defendant has not shown that he was 

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prejudiced by the failure of trial counsel to call these witnesses, and he is

not entitled to relief.

Defendant’s eleventh and final ineffective assistance of counsel 

claim, which the Government did not address, is that trial counsel failed to 

call co-defendant Lofton as a witness to determine whether Lofton would 

invoke the Fifth Amendment and would thus be unavailable as a defense 

witness. He claimed that Lofton had previously agreed to testify in his 

behalf, although again, he did not proffer details of Lofton’s purported 

testimony until his reply. Defendant asserts that even if Lofton had 

invoked his Fifth Amendment right, he could have testified to the condition 

of the pillowcase at the time the warrant was executed. This testimony, 

again, would have been offset by the Government’s photograph of the long 

gun in the pillowcase at the time law enforcement entered the premises. 

Furthermore, a review of Lofton’s testimony at his own trial did not suggest 

it would have placed Defendant in a favorable light. He stated, for 

instance, that he had known that Defendant killed somebody. (ECF No. 

150, Exh. A at 337). Defendant has not shown how calling Lofton to the 

stand would have altered the outcome of his case, and thus he has not 

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shown counsel performed in a deficient manner and he is not entitled to 

relief. 

In summary, as noted above, a moving defendant has a high hurdle 

to overcome to establish a violation of his constitutional rights based on his 

attorney=s performance. Dissatisfaction with the outcome of his trial, or a 

belief that, in hindsight, a particular course of action might have yielded a 

more favorable result, will not suffice to establish a constitutional violation 

under Strickland. Defendant was represented by two able attorneys, 

whose performance is not rendered unconstitutional by the fact that they 

did not secure an acquittal in this case. 

Ground Four

Defendant next claim is that he is actually innocent of the § 851 

enhancement because he is actually innocent of the drug offense that 

provided the basis for this enhancement. Defendant asserts that 

someone other than him committed the December 21, 1983, sale of 

marijuana for which he was convicted (PSR ¶ 48), and maintains that he 

will secure an affidavit or declaration from the person. Title 21 U.S.C. 

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§ 851(e) provides a five year statute of limitations for challenging prior 

convictions. Defendant’s prior conviction falls well outside that window, 

and he may not challenge it at this juncture. 

Ground Five

Defendant’s fifth ground for relief is that cumulative error denied him 

a fair trial. It is true that the cumulative effect of several errors that are 

harmless by themselves could so prejudice a defendant's right to a fair trial 

that a new trial might be necessary even if the errors considered 

individually are non-reversible. See, e.g., U.S. v. Ramirez, 426 F.3d 1344, 

1353 (11th Cir. 2005); United State v. Preciado-Cordobas, 981 F.2d 1206, 

1215 n.8 (11th Cir. 1993) (citing United States v. Pearson, 746 F.2d 787, 

796 (11th Cir. 1984)); United States v. Adams, 74 F.3d 1093, 1099 (11th 

Cir. 1996); United States v. Thomas, 62 F.3d 1332, 1343 (11th Cir. 1995). 

However, A[a] defendant is entitled to a fair trial not a perfect one.@ United 

States v. Wilson, 788 F.3d 1298, 1315 (11th Cir. 2015); Ramirez, 426 F.3d 

at 1353 Lutwak v. United States, 344 U.S. 604 (1953). The cumulative 

error doctrine is inapplicable where the district court commits no individual 

errors. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004); 

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United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984) (AWithout 

harmful errors, there can be no cumulative effect compelling reversal.@); 

Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (noting that 

increasing the number of non-meritorious claims raised will not support a 

finding of cumulative error because ATwenty times zero equals zero.@). 

The Supreme Court has not recognized the cumulative error doctrine in the 

context of ineffective assistance of counsel claims.4 However, again, in 

the absence of any error, there can be no cumulative error. See United 

States v. Hall, 455 F.3d 508, 520 (5th Cir.2006); see also Yohey v. Collins, 

985 F.2d 222, 229 (5th Cir.1993) (stating that because certain alleged 

errors did not rise to constitutionally ineffective assistance of counsel, and 

because certain other claims were meritless, a petitioner had Apresented 

nothing to cumulate@); accord Villanueva v. Stephens, 555 F. App’x 300, 

 4 The Eleventh Circuit has noted Athe absence of Supreme Court precedent 

applying cumulative error doctrine to claims of ineffective assistance of counsel.@ 

Forrest v. Fla. Dep=t of Corr., 342 F. App=x 560, 565 (11th Cir. 2009). The court 

cautioned that the Supreme Court has held that Athere is generally no basis for finding a 

Sixth Amendment violation unless the accused can show how specific errors of counsel 

undermined the reliability of the finding of guilt.@ Id. (quoting United States v. Cronic, 

466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). 

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308 (5th Cir. 2014) (citing Hall). Having found no error, there can thus be 

no cumulative error, and Defendant is not entitled to relief.

Ground Six

Defendant’s final claim for relief is that his 924(c) conviction violates 

Rosemond v. United States, 134 S. Ct. 1240 (2014). The Rosemond

Court held that to sustain a conviction for aiding and abetting the offense of 

using a firearm during a federal drug-trafficking offense, the defendant must 

know beforehand that one of his co-conspirators will carry a gun. The 

facts in the case at bar are distinguishable in that in Defendant’s case, the 

Government argues that because Defendant was sitting in the vicinity of 

the firearm, he was aware of the firearm’s presence and actually 

possessed it. (ECF No. 98 at 371-373). Defense counsel is not charged 

with clairvoyance, and may not be faulted for failing to anticipate and make 

arguments based on a prediction as to how the law may develop after 

Defendant’s conviction. Denson v. United States, 804 F.3d 1339, 1344 

(11th Cir. 2015) (citing Marquard v. Sec=y for Dep=t of Corrs., 429 F.3d 1278, 

1313 (11th Cir. 2005)); United States v. Fields, 565 F.3d 290, 295 (5th Cir. 

2009) (AClairvoyance is not a required attribute of effective representation.@)

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Defendant claims in his reply that this is not an ineffective assistance of 

counsel claim, but rather a freestanding claim. As such, it is procedurally 

barred because it could have been raised on direct review. 

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.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings 

provides that A[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.

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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.

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Based on the foregoing, it is respectfully RECOMMENDED:

1. The second amended motion to vacate, set aside, or correct 

sentence (ECF No. 138) be DENIED.

2. A certificate of appealability be DENIED.

At Tallahassee, Florida, this 15th day of December, 2016.

s/CHARLES A. STAMPELOS 

CHARLES A. STAMPELOS

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.

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