Opinion
Case No. 8:10-cv-1132-T-33MAP.
April 19, 2011
ORDER
This cause is before the Court on Petitioner Samuel Columbus Hill's untimely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. Hill challenges his conviction and sentence entered by the Fifth Judicial Circuit, Hernando County, Florida. A review of the record demonstrates that, for the following reasons, the petition must be denied.
FACTUAL AND PROCEDURAL HISTORY
Hill was charged by information with: 1) Attempted First Degree Murder with a Firearm; 2) Armed Burglary with a Firearm; 3) Possession of a Firearm by a Convicted Felon; and 4) Possession of a Firearm while Engaged in a Criminal Offense. (App. A). Count three was severed for trial. (App. B). A jury trial was held on April 28-30 and May 1-2, 2003. (App. C). The jury found Hill guilty as charged. (App. D). The jury made special findings on Counts 1 and 2 — that Hill possessed a firearm during the offense. (App. D).Hill was sentenced to 16.65 years incarceration on Counts One and Two. The three-year minimum mandatory sentence was imposed on Count Two. Hill was not sentenced on Count Three due to the three-year minimum mandatory sentence on Count Two, and the State nolle prossed that count. (App. E, F). The sentence on Count Two runs concurrent to the sentence on Count One but consecutive to an active federal sentence (App. F).
Hill's 28 U.S.C. § 2255 motion challenging his federal sentence was denied. (See copy of order denying the motion to vacate attached as Exhibit 1). The Eleventh Circuit dismissed Hill's appeal of the denial of relief for want of prosecution in Case Number 8:97-cr-313-25EAJ at Doc. 204.
Hill filed a timely notice of appeal. (App. G). The Public Defender submitted a brief raising two grounds for appellate review: 1) the trial judge abused his discretion in denying the motion for continuance; and 2) the trial court erred in denying the motion for judgment of acquittal. (App. H). The State filed an answer brief. (App. I). On May 25, 2004, the state district court of appeal per curiam affirmed Hill's judgment and sentence. (App. J); Hill v. State, 873 So. 2d 1234 (Fla. 5th DCA 2004) (table). The mandate issued June 11, 2004. (App. K).
On May 11, 2006, Hill signed a Rule 3.850 motion for post-conviction relief which was filed in the state trial court. (App. L). Hill alleged six grounds for relief: 1) counsel was ineffective for failing to introduce available alibi evidence and for failing to secure additional alibi evidence that could have been introduced; 2) counsel was ineffective for failing to effectively impeach James McHargue regarding the questionable circumstances surrounding McHargue's identification of Hill as his assailant; 3) counsel was ineffective for failing to present the testimony of two United States Attorneys, whose testimony would have destroyed the credibility of the State's jailhouse informant; 4) counsel was ineffective for failing to present additional evidence to impeach the informant's credibility by presenting credible witnesses and government documents that contradicted the informant's testimony; 5A) the prosecutor committed prosecutorial misconduct for failing to correct the allegedly false testimony of Agent Duralia regarding the credibility of the jailhouse informant; and 5B) the prosecutor committed prosecutorial misconduct in misleading the jury by telling them in closing argument that the credibility of the jailhouse informant was "not an issue" for the federal prosecutors. (App. L). The trial court summarily denied grounds two, three, and five (a) and (b) with attachments, and set an evidentiary hearing on grounds one and four. (App. M-N).
See Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999) (Under the "mailbox rule," a pro se prisoner's motion to vacate, set aside, or correct sentence was filed on the date that he signed, executed, and delivered his petition to prison authorities for mailing."); Thompson v. State, 761 So. 2d 324, 326 (Fla. 2000). All further references to the filing date of pro se pleadings by Petitioner Hill will be the filing date under the mailbox rule.
An evidentiary hearing was held on December 20, 2007, at which Hill was represented by counsel. (App. O). The hearing was continued on March 20, 2008. (App. P). On December 19, 2008, the state trial court denied Hill's Rule 3.850 motion for postconviction relief. (App. S). Hill filed a timely notice of appeal. (App. T).
On September 15, 2009, the state district court of appeal per curiam affirmed the denial of Hill's Rule 3.850 motion for post-conviction relief. (App. X); Hill v. State, 17 So. 3d 1240 (Fla. 5th DCA 2009) (table). The mandate issued October 7, 2009. (App. Y).
Hill filed the instant federal habeas petition on May 12, 2010, raising five grounds for relief: 1) trial counsel was ineffective for failing to investigate and introduce available alibi evidence at trial and failing to secure additional alibi evidence; 2) trial counsel was ineffective for failing to impeach the prison jailhouse informant, Paul Detwiller, about his established lack of credibility with the federal prosecutorial authorities as well as with information regarding the nature of the relationship between Detwiller and Hill; 3) counsel was ineffective for failing to present the testimony of two U.S. Attorneys whose testimony would have destroyed the credibility of the State's jailhouse informant; 4) prosecutorial misconduct for Assistant State Attorney Cato to permit false testimony by Agent Duralia to stand uncorrected; and 5) prosecutorial misconduct for Assistant State Attorney Cato to argue in summation facts he knew to be untrue. (Doc. 1, pg. 3).
EXHAUSTION/PROCEDURAL DEFAULT/PROCEDURAL BAR
There are two prerequisites to a federal habeas review: (1) "the applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which were allegedly violated," and (2) "the applicant must have presented his claims in a procedurally correct manner." Upshaw v. Singletary, 70 F.3d 576, 578-79 (11th Cir. 1995) (citations omitted). Although it appears that all of Hill's grounds were raised in Hill's Rule 3.850 motion for post-conviction relief, Hill only appealed the denial of grounds one and four of the Rule 3.850 motion for postconviction relief. These are grounds one and two in the present federal petition.
Grounds one and four of the motion for postconviction relief are the same as grounds one and two that Hill raised in his appeal of the denial of Rule 3.850 relief in state court.
Under Florida law, Hill waived the remainder of the postconviction claims. See Marshal v. State, 854 So. 2d 1235 (Fla. 2003) (defendant waives 3.850 claims when he fails to raise them in his appeal). As Hill failed to apprise the appellate court of his challenge to the trial court's rulings on the remainder of his postconviction claims, grounds three through five of the present federal petition are unexhausted.
Hill Cannot Return to State Court To Exhaust His Claims
Hill took a direct appeal and filed a Rule 3.850 motion for postconviction relief. Because more than two years have passed since his conviction became final, Hill would be barred from filing any successive Rule 3.850 motion or an appeal of the denial of the motion, and grounds three, four, and five of the present federal habeas corpus petition are procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991) (when the petitioner fails to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claim procedurally barred, then there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims).
Florida has a two year statute of limitations for commencing state collateral proceedings under Rule 3.850. Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir.), cert. denied, 498 U.S. 834 (1990).
When a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice, Engle v. Isaac, 456 U.S. 107, 129 (1982), or a showing that a fundamental miscarriage of justice will occur if the federal court does not consider the claim. Coleman, supra, at 2565. Hill has failed to allege or establish cause and prejudice for his procedural default. Hill's pro se status does not constitute cause for his procedural default. See McCoy v. Newsome, 953 F.2d 1252 (11th Cir. 1992) ; Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990). Likewise, there has been no showing that a fundamental miscarriage of justice will result if Hill's claim is not addressed on its merits. McClesky v. Zant, 499 U.S. 467, 495 (1991). There has been no colorable showing that Hill is factually innocent. McClesky v. Zant, supra.
HILL'S PETITION IS TIME-BARRED
The Anti-Terrorism and Effective Death Penalty Act (the "AEDPA") created a new limitations period for petitions for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. "A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).Given Hill's allegations and the record in this case, it is clear that his conviction became final on August 3, 2004, ninety days after the state district court of appeal affirmed his judgment and sentence on May 25, 2004. Hill had until August 3, 2005, to file a timely federal petition.
The one-year time limitation had expired on August 3, 2005, and no time remained to be tolled when Hill filed his first and only state court post-conviction pleading on May 11, 2006. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (properly filed state court collateral pleading filed after expiration of limitations period cannot toll that period because there is no period remaining to be tolled); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (even "properly filed" state court petitions must be "pending" in order to toll the limitations period). Once the one-year period expired, Hill could not restart the clock.
May 11, 2006, was 281 days past the date on which Hill could have filed a timely federal habeas corpus petition.
Hill has failed to allege or demonstrate any "extraordinary circumstances" that would support tolling of the one-year period of limitation. A petitioner is "entitled to equitable tolling if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. Holland v. Florida, 130 S.Ct. 2549 (2010); Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006). The petitioner must establish the entitlement to equitable tolling. Courts should "take seriously Congress's desire to accelerate the federal habeas process, and [should] only authorize extensions when this high hurdle is surmounted." Balagula v. United States, 73 F.Supp.2d 287 (E.D. N.Y. 1999); Torres v. Miller, 1999 WL 714349 (S.D. N.Y. 1999). Considering this high hurdle and the facts presented here, Hill has failed either to allege or to demonstrate extraordinary circumstances preventing his filing his federal habeas petition in a timely fashion.
In his reply, Hill contends that the one-year limitation period should run from the time all state court remedies are exhausted. As demonstrated by citation to the case law above, this is not the law in the Eleventh Circuit.
CONCLUSION
The present petition is untimely filed under the ADEPA, and Hill has not demonstrated or even alleged that equitable tolling applies, that he is actually innocent, or that he meets the exceptions under section 2244(d)(1)(B)-(D).
Accordingly, the Court orders:
That Hill's petition is denied as untimely. The Clerk is directed to enter judgment against Hill and to close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts because Petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).
Because Petitioner is not entitled to a certificate of appealability, Petitioner is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida.
SAMUEL C. HILL, UNITED STATES OF AMERICA,
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Petitioner, v. CASE NO. 8:97-cr-313-T-25EAJ 8:00-cv-2416-T-25EAJ Respondent.ORDER
Before the Court is the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 160), the supporting memorandum (Dkt. 170), and the Government's response (Dkt. 179). From the record, the Court finds the following:I. BACKGROUND
On August 28, 1997, Petitioner was charged by Superseding Indictment with maintaining a place to manufacture and distribute marijuana, in violation of 21 U.S.C. § 856 (Count One); possessing marijuana with the intent to distribute it, in violation of 21 U.S.C. § 841 (Count Two); possessing firearms as a convicted felon, in violation of 18 U.S.S. §§ 922 and 924 (Count Three); and possessing equipment used to manufacture marijuana, in violation of 21 U.S.C. § 843 (Count Four). Petitioner proceeded to trial and on January 7, 1998, was convicted by a jury as charged in the Superseding Indictment. On May 29, 1998, Petitioner was sentenced to a term of 240 months' imprisonment as to Counts One and Two, a term of 120 months' imprisonment as to Count Three, and 48 months' imprisonment as to Count Four, to run concurrent. Petitioner took a timely appeal, raising the following issues: (1) the government failed to prove Count Three beyond a reasonable doubt regarding the required knowledge element; (2) the trial court erred in denying Petitioner's motion to suppress and motion to compel the disclosure of the confidential informant; (3) the trial court erred during the sentencing hearing regarding the calculation of the quantity of marijuana attributable to Petitioner; and (4) the trial court erred in concluding that Petitioner was a career offender under the sentencing guidelines. On October 4, 1999, the Eleventh Circuit Court of Appeals issued its Mandate affirming Petitioner's conviction and sentence. Certiorari was denied by the United States Supreme Court on February 24, 2000. The instant § 2255 motion was filed November 24, 2000, raising the following grounds for relief:
A) Ineffective Assistance of Counsel;
B) The Prosecutor committed illegal acts of obstruction of justice and concealing of favorable evidence; and
C) The conviction was illegally obtained by the use of evidence gained pursuant to an unlawful search and seizure.
II. DISCUSSION A. Ineffective Assistance of Counsel.
Under his first ground for relief, Petitioner raises claims of ineffective assistance based upon counsel's failure to: (1) properly investigate the legality of the search warrant and identify the confidential informant; (2) present an insanity defense; and (3) object to prior convictions that were used to enhance Petitioner as a career offender.The Sixth Amendment right to counsel "is the right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984) ( quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n. 14 (1970). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that a trial cannot be relied on as having produced a just result." Id. at 466 U.S. 686, 104 S.Ct. 2064. In order for a petitioner to be granted relief on the basis of a claim of ineffective assistance of counsel, the two-prong test of Strickland must be met: (1) petitioner "must show that counsel's performance was deficient," and (2) petitioner "must show that the deficient performance prejudiced the defense." Id. at 466 U.S. 687, 104 S.Ct. 2064. In order to establish the first prong, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 466 U.S. 688, 104 S.Ct. 2064. The courts are to be highly deferential when scrutinizing the performance of counsel. Id. at 466 U.S. 689, 104 S.Ct. 2065. The Court in Strickland stated:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Id. ( citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164 (1955)). Therefore, in deciding a claim of ineffectiveness, the petitioner "must identify the acts or omissions" that he believes are outside of the scope of "reasonable professional judgment," and the court must determine if, in light of the circumstances of the particular case, the acts or omissions complained of do not fall within "the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. However, even if the petitioner establishes the first prong, failure to demonstrate the prejudice required by the second prong is fatal to an ineffectiveness claim. Id. at 698, 104 S.Ct. at 2069. An ineffective assistance of counsel claim may be dismissed on the failure to meet either prong without consideration of the other. Id.
1. Search warrant.
Under his first claim of ineffective assistance of counsel, Petitioner asserts that counsel was ineffective for his failure to properly investigate the legality of the search warrant conducted on Petitioner's residence and to investigate the background of the confidential informant that was used to support the probable cause for the search warrant.
A motion to suppress was filed, seeking to suppress all evidence obtained as a result of the search warrant on the basis that: 1) the search warrant was issued without adequate probable cause, and 2) the search warrant was based on information obtained from a confidential source or informant ("CI") who was acting as a government agent when the CI conducted the warrantless search of Petitioner's residence. The motion further argued that the search warrant was illegal and defective because of lack of verification of the reliability of the "CI", or allegations by the affiant that law enforcement had ever dealt with the "CI". See motion, Dkt. 23. Counsel also filed a motion for disclosure of the "CI". Dkt. 22. The Court heard arguments on the motion on October 17, 1997. Transcript, Dkt. 118. On October 20, 1997, the Court orally denied the motions. Dkt. 92. Even though the motions were denied, counsel still persisted in attempting to challenge the legality of the search warrant and to discover the identity of the "CI" by renewing the motions prior to trial. See Dkts. 49, 50. The denial of these motions was also raised on appeal. The Eleventh Circuit rejected Petitioner's argument that the search warrant was invalid because of a lack of reliability of the informant. Dkt. 148.
"The test for ineffectiveness is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more. Instead the test is . . . whether what they did was within the `wide range of reasonable professional assistance.'" Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ( citing Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995)). Petitioner has failed to demonstrate that counsel's representation fell below an objective standard of reasonableness" — that is, that counsel's performance was unreasonable "under prevailing professional norms . . . considering all of the circumstances." See Strickland, 104 S.Ct. at 2064-65. Having failed to show deficient performance or resulting prejudice as required by Strickland, this claim fails and is denied.
2. Insanity defense.
Next, Petitioner argues that counsel was ineffective for not requesting a competency hearing and/or presenting a defense of insanity. Petitioner contends that he was incompetent during the time of the alleged crimes and during all phases of the judicial proceedings. Dkt. 170 at 10, 11. Petitioner argues that "he was under a great amount of mental stress prior to his encounter with the Hernando County Sheriff's Department "and that upon the "stress of having his property illegally entered and later being arrested . . . [he] fell into a major state of depression." Id. at 11. Petitioner asserts that his prior contact with the judicial system clearly indicated he had a problem with drugs; that he had an addiction that would have caused any "competent counsel to take concern" and request a psychological evaluation. Id. First, there is nothing in the record which suggests that Petitioner was suffering from reduced mental capacity at the time of the offenses herein. Moreover, even if Petitioner had advised counsel of his alleged mental problems, the decision of whether or not to pursue an insanity defense is one of trial strategy. Sound tactical decisions within a range of reasonable professional competence are not vulnerable to collateral attack. See e.g., Weber v. Israel, 730 F.2d 499, 508 (7th Cir.) (choosing a defense is a matter of trial strategy), cert. denied, 469 U.S. 850 (1984); United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980), cert. denied, 450 U.S. 934 (1981). A tactical decision amounts to ineffective assistance of counsel "only if it was so patently unreasonable that no competent attorney would have chosen it." Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983), cert. denied, 464 U.S. 1063 (1984); accord Strickland, 466 U.S. at 690. The Court notes that there was nothing about Petitioner's behavior during the trial that would suggest a mental problem. Petitioner has failed to satisfy the first prong of the Strickland test as to this assertion, accordingly, there is no need to address whether he suffered any prejudice. This claim is denied.
3. Career offender enhancement.
Petitioner contends that counsel was ineffective for failing to object to the use of a "non-counseled" prior conviction to enhance him as a career offender under U.S.S.G. § 4B1.1.
To be deemed a career offender under the Guidelines, (1) a defendant must have been at least eighteen years old at the time he committed the offense for which he is being sentenced, (2) the instant offense of conviction must be a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant must have at least two prior felony convictions for either a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1. Only factor three is at issue here.
The Petitioner sustained at least two prior felony convictions of either a crime of violence or a controlled substance offense. Those offenses are as follows: (1) Carrying a Concealed Firearm, Okaloosa County Circuit Court, Case No. 83-957; and (2) Cultivation of Marijuana, Hernando County Circuit Court, Case No. 83-194. Petitioner contends that the felony conviction for cultivation of marijuana was the result of a "coerced" and "uncounseled" guilty plea, and could not be used as a predicate offense for enhancing his sentence under § 4B1.1.
As a general matter, a sentencing court may not examine the constitutionality of a defendant's earlier state conviction when calculating a sentence. See, e.g., United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). However, "[c]ollateral attacks on prior convictions are allowed in federal sentencing proceedings in one narrow circumstance only: when the conviction was obtained in violation of the defendant's right to counsel." United States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997) ( citing Custis v. United States, 511 U.S. 485, 486-89, 114 S.Ct. 1732, 1734, 128 L.Ed.2d 517 (1994); citing also United States v. Roman, 989 F.2d 1117, 1120 (11th Cir. 1993) (en banc) (per curiam), cert. denied, 511 U.S. 1129, 114 S.Ct. 2139, 128 L.Ed.2d 868 (1994) (holding that unless a prior conviction is "presumptively void," it is not open to collateral attack in a federal sentencing proceeding). Prior uncounseled convictions are not "presumptively void" if the conviction was obtained after the right to counsel was waived knowingly, intelligently, and voluntarily. See United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995). The Government does not dispute that Petitioner was not represented by counsel in the state proceedings. Dkt. 179 at 10. Under Roman, Petitioner is required to "sufficiently assert [] facts" showing that a prior conviction was presumptively void. Petitioner has presented no factual foundation, by affidavits, transcripts of the state proceedings, or otherwise, to show that the conviction for cultivation of marijuana in Case No. 83-194 is presumptively void, i.e., that there was an unwaived absence of counsel. Nor has Petitioner made a showing that counsel had knowledge of or reason to believe that the prior conviction was presumptively void. When a defendant presents only conclusory challenges that lack both a factual and legal basis, the court is not under any duty to make a further inquiry into the constitutional validity of the prior conviction. See United States v. Hope, 906 F.2d 254, 263 (7th Cir. 1990). Assertions which are vague, conclusory, speculative or unsupported cannot support a claim of ineffective assistance of counsel. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) cert. denied, 502 U.S. 1105 (1992).
While neither Custis nor Roman involved a sentence enhancement under § 4B1.1, in United States v. Farris, 77 F.3d 391, 397 n. 10 (11th Cir.), cert. denied, 519 U.S. 896,117 S.Ct. 241,136 L.Ed.2d 170 (1996), the Eleventh Circuit held that both Custis and Roman are applicable to the determination of career offender status under § 4B1.1.
Finally, based upon counsel's written objections to the probation office's application of the career offender enhancement, and the arguments raised at the sentencing ( See Tr. Dkt. 125 9 — 20), counsel made a reasonable investigation into the validity of the prior convictions.
Counsel filed written objections to the Presentence investigation report and argued at sentencing that: (1) the predicate offense of carrying a concealed firearm, docket number 83-957, does not qualify as a crime of violence, and (2) that the cultivation of marijuana charge and the concealed weapon charge are related.
Petitioner has failed to show deficient performance or resulting prejudice as required by Strickland. Accordingly, this claim is denied.
B. Prosecutorial Misconduct.
Under his second ground for relief, Petitioner raises for the first time, a claim of prosecutorial misconduct. "An available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding." Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994), cert. denied, 514 U.S. 112 (1995). A petitioner who has procedurally defaulted his claim by failing to raise it on direct appeal may only raise it on collateral review if he demonstrates "(1) `cause' excusing his . . . procedural default; and (2) `actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982).
Petitioner alleges that the prosecutor concealed facts and evidence regarding the search warrant, and that he can support this claim with "newly discovered evidence" of the following:
A) The informant had been employed three (3) years prior to being directed by the Sheriff's Dept. to enter the defendant's property.
B) That the Hernando County Sheriff's Dept. had made an illegal pre-warrant search of the defendant's property for the purpose of creating a masterful search warrant affidavit. (details of property and context were outstanding).
C) That Ms. Cox [Karen Cox, Assistant United States Attorney] directed Det. Hopper to cause the informant to "get lost" during the suppression proceedings.
D) That the Hernando County State Attorney's Office, the agency that prepared the affidavit for search warrant, elected not to prosecute the case against [Petitioner] based on there investorgator (sic) finding that there was an illegal pre-warrant search of the defendants property. In fact, the Hernando County State Attorney's Office, for the purpose of protecting there (sic) involvement, destroyed all documents pertaining to there (sic) investigation.
E) That one of the alleged informants, that had done a pre-warrant search of the defendant's property, was in fact a deputy from the Hernando County Sheriff's Dept. That the masterful outlining of the search warrant clearly displays the craft of a person that has prepared many affidavits for search warrants.
Dkt. 170 at 21.
As the Government states, "Petitioner merely makes self-serving, conclusory allegations without any evidentiary foundation to support this claim." Dkt. 179 at 6. Having failed to demonstrate cause and resulting prejudice as required by Frady, Petitioner fails to overcome the procedural bar of this claim. Accordingly, it is denied.
C. Illegal Conviction.
Next, Petitioner contends that his conviction was illegal because it was based upon evidence gained pursuant to an unlawful search and seizure. This claim is merely a re-characterization of the arguments raised in Petitioner's motion to suppress and on direct appeal. As previously stated, the Eleventh Circuit rejected the argument that the search warrant was invalid. The district court is not required to reconsider claims of error that were raised and disposed of on direct appeal. United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). "[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255." United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977); see also Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir. 1989) (A rejected claim does not merit rehearing on a different, but previously available, legal theory). Petitioner has established no extraordinary circumstances that would justify reconsideration of this claim. See Schlup v. Delo, 15 S.Ct. 851 (1995). Accordingly, this claim is procedurally barred and is denied.
III. CONCLUSION
Upon consideration of the foregoing, it is ORDERED:
1. That the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 160) is DENIED.
2. The Clerk is directed to enter judgment in the related civil case, Case No. 8:00-cv-2416-T-25EAJ, and to close said file.
DONE AND ORDERED this 20th day of March, 2003.