USCA11 Case: 21-13480 Document: 32-1 Date Filed: 03/09/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13480
Non-Argument Calendar
____________________
OCTAVIUS MCLENDON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:16-cv-20664-FAM,
1:12-cr-20276-FAM-3
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2 Opinion of the Court 21-13480
____________________
Before LAGOA, BRASHER, and MARCUS, Circuit Judges.
PER CURIAM:
Octavius McLendon, a federal prisoner, appeals following
the district court’s denial of his
28 U.S.C. § 2255 motion to vacate.
In 2012, a grand jury charged McLendon and two codefendants --
Henry Bryant and Daniel Mack -- with certain drug offenses
(“Count 1-3”), as well as possession of a firearm in furtherance of
drug trafficking, in violation of
21 U.S.C. § 846 and
18 U.S.C. §§
924(c)(1)(A) and 2 (“Count 4”). The jury convicted McLendon and
the others on all counts. They appealed, but we affirmed. United
States v. Mack,
572 F. App’x 910 (11th Cir. 2014) (unpublished).
In 2015, McLendon moved for a new trial as to all counts,
under Fed. R. Crim. P. 33 and Brady v. Maryland,
373 U.S. 83
(1963). In support, he alleged that, while his appeal was pending,
the government had acknowledged that a law enforcement agent
who testified at his trial was under investigation for certain in-
stances of misconduct. After the district court denied his new trial
motion, he appealed. We affirmed the rejection of his Brady-based
claims as to his drug convictions, but declined to address a Brady-
based claim as to his firearm conviction, having concluded that the
latter was not adequately presented on appeal. United States v.
Bryant,
780 F. App’x 738, 747–48 (11th Cir. 2019) (unpublished).
McLendon then filed the present § 2255 motion raising a
Brady-based challenge to his firearm conviction (Count 4). The
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21-13480 Opinion of the Court 3
district court denied it as procedurally defaulted, based on our 2019
ruling. In this appeal, McLendon argues that: (1) the district court
erred when it failed to address the merits of his claim that a Brady
violation tainted the jury’s consideration of his co-defendant/prin-
cipal’s culpability for illegally possessing a firearm during and in re-
lation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c),
and, therefore, precluded his culpability as an aider-and-abettor to
an identical charge; and (2) by denying his requests for an eviden-
tiary hearing and limited discovery, the district court erroneously
deprived him of the opportunity to provide support for his Brady
claim. After thorough review, we affirm.
I.
When reviewing the denial of a § 2255 motion, we review
questions of law de novo and findings of fact for clear error.
Thomas v. United States,
572 F.3d 1300, 1303 (11th Cir. 2009). We
review the denial of an evidentiary hearing for abuse of discretion.
Aron v. United States,
291 F.3d 708, 714 n.5 (11th Cir. 2002). We
may affirm on any ground supported by the record, regardless of
the ground stated in the district court’s order or judgment. Castillo
v. United States,
816 F.3d 1300, 1303 (11th Cir. 2016).
II.
First, we are unpersuaded by McLendon’s argument that the
district court erred when it failed to address the merits of the Brady
claim he’d raised in his § 2255 motion. Section 2255 allows federal
prisoners to obtain post-conviction relief on the basis that a
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4 Opinion of the Court 21-13480
sentence was imposed in violation of the Constitution or laws of
the United States.
28 U.S.C. § 2255(a).
In reviewing rulings on § 2255 motions, we distinguish be-
tween claims that are procedurally barred and claims that are pro-
cedurally defaulted. A claim is procedurally barred when a movant
raises the same claim in a § 2255 motion that he raised, and we
rejected or otherwise disposed of, on direct appeal. Stoufflet v.
United States,
757 F.3d 1236, 1239 (11th Cir. 2014); see also United
States v. Nyhuis,
211 F.3d 1340, 1343 (11th Cir. 2000) (“Once a mat-
ter has been decided adversely to a defendant on direct appeal it
cannot be re-litigated in a collateral attack under [§] 2255”) (quota-
tions omitted, alteration adopted).
By contrast, a movant generally procedurally defaults a
claim under § 2255 if he failed to raise it on direct appeal, but he
may overcome that default with a showing of cause and prejudice
or actual innocence. Lynn v. United States,
365 F.3d 1225, 1234
(11th Cir. 2004). Procedural default is not jurisdictional, but rather
an affirmative defense that the government must raise. See How-
ard v. United States,
374 F.3d 1068, 1071–73 (11th Cir. 2004). We
have not applied procedural default in a context where a claim was
unavailable on direct appeal, but available and not raised, on appeal
from the denial of a post-trial, post-appeal Rule 33 motion for a new
trial. Importantly, however, we’ve held that we may skip proce-
dural default issues if the claim would fail on the merits. See Dallas
v. Warden,
964 F.3d 1285, 1307 (11th Cir. 2020) (addressing a 28
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21-13480 Opinion of the Court
5
U.S.C. § 2254 petition), cert. denied sub nom. Dallas v. Raybon,
142
S. Ct. 124 (2021).
A Brady violation of a defendant’s due process rights occurs
where the government suppresses material evidence favorable to
the defendant, regardless of the government’s good or bad faith.
Brady,
373 U.S. at 87; Rodriguez v. Sec’y, Fla. Dep’t of Corr.,
756 F.3d 1277, 1303 (11th Cir. 2014). To establish a Brady violation,
the defendant must show:
(1) the government possessed favorable evidence to
[him]; (2) [he] does not possess the evidence and
could not obtain the evidence with any reasonable
diligence; (3) the prosecution suppressed the favora-
ble evidence; and (4) had the evidence been disclosed
to [him], there is a reasonable probability that the out-
come would have been different.
United States v. Stein,
846 F.3d 1135, 1145–46 (11th Cir. 2017) (quo-
tations omitted).
Under
18 U.S.C. § 924(c), any person who either knowingly
uses or carries a firearm during and in relation to any drug traffick-
ing crime or who possesses a firearm in furtherance of any such
crime shall be sentenced to a term of imprisonment not less than
five years. See
18 U.S.C. § 924(c)(1)(A)(i). Further, a person who
aids or abets the commission of a federal offense is punishable as a
principal. Rosemond v. United States,
572 U.S. 65, 70 (2014);
18 U.S.C. § 2. A defendant is criminally liable for aiding and
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6 Opinion of the Court 21-13480
abetting a § 924(c) offense when he actively participates in a crimi-
nal scheme knowing that one of his confederates will carry a
gun. Rosemond,
572 U.S. at 77.
Here, it is unnecessary for us to address whether the district
court properly concluded that McLendon’s Brady claim concern-
ing Count 4 was procedurally defaulted by his failure to raise it on
direct appeal following the denial of his motion for a new trial.
This is because we conclude that McLendon cannot satisfy his bur-
den under Brady for his firearm conviction (Count 4). See Dallas,
964 F.3d at 1307. Specifically, he cannot establish that, had the law
enforcement agent’s misconduct been disclosed, there is a reason-
able probability that the outcome of his firearm charge would have
been different. Stein,
846 F.3d at 1145–46.
These basic facts came out at trial. In the charged conspir-
acy, McLendon and his co-defendant Bryant had acted as narcotics
couriers, and co-defendant Mack, a police officer, had provided
protection for the transport while in uniform and with his firearm.
Testimony about their scheme came in at trial from several mem-
bers of law enforcement, and the jury also heard audio recordings
and watched video recordings of the conduct in question.
At trial, Dante Jackson, a Federal Bureau of Investigation
(“FBI”) special agent who had worked the case undercover, testi-
fied. He told the jury that while he was posing as the general man-
ager of a South Beach nightclub, he met with one of the defendants
on trial, Bryant, to discuss transporting drugs in Miami. Bryant
agreed to provide police officers to escort the drug transports. In a
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recording of one of their early conversations that was played for
the jury, Bryant called co-defendant McLendon (the appellant in
this appeal) his “point man” and “brother” and said that the two
would split whatever Jackson paid Bryant, while Bryant would pay
the officers he hired $3,500 each. Baltimore Police Detective Kay-
Tee Tyson also testified, explaining that he was brought into the
investigation to play the role of Jackson’s drug-trafficking friend.
Later, in another video played for the jury, Detective Tyson
was shown marking nine “bricks” of sham cocaine with a marker
and handing each one to Agent Jackson to place inside a duffel bag,
all in the presence of Bryant and McLendon, who visibly moved
closer to see the “bricks” in the bag. On video, Tyson told Bryant
and McLendon that there could be “no deviation, no taste, no test,”
and asked if either of them “get high?” According to Tyson’s testi-
mony, they appeared to be insulted and McLendon made a sound
as though he was upset with the question. The jury also saw video
of Bryant and McLendon returning to Jackson’s office on the same
day to receive a cash payment for the delivery of the sham cocaine
and Bryant and McLendon counted the money in Jackson’s office.
Before the second transportation of sham cocaine, Agent
Jackson, Detective Tyson, Bryant and co-defendant Mack (who ar-
rived in his police car and wore his police uniform) met all together
at a restaurant and a video of the meeting was played for the jury.
Detective Tyson testified that at the meeting, he noticed that Mack
was carrying a pistol attached to his gun belt. In a video from later
that day -- also played for the jury -- Agent Jackson filled a duffel
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8 Opinion of the Court 21-13480
bag with ten “bricks” of sham cocaine in the nightclub, again in
Bryant and McLendon’s presence. Bryant and McLendon subse-
quently returned to the nightclub to collect a cash payment for the
delivery of the sham cocaine, as shown in yet another video played
for the jury. The jury also saw photographs of the sham cocaine
from the second transport, the duffel bag used to carry the sham
cocaine, and the actual “bricks” of sham cocaine used.
In addition, FBI Special Agent Scott McDonough testified at
trial that he had observed, from an airplane, the first transport of
sham cocaine. As part of a Mobile Surveillance Team, McDonough
had watched two individuals walk into Jackson’s nightclub, emp-
tyhanded, and, shortly thereafter, walk out of it and place a black
duffel bag in the rear-seat of a black vehicle. The aerial surveillance
plane then followed the vehicle for about ten miles, and during the
course of that trip, Special Agent McDonough saw a marked Mi-
ami-Dade patrol cruiser following the vehicle the whole way. At
the second transport of sham cocaine, FBI Special Agent David
Rogers was part of the Mobile Surveillance Team. He testified,
similarly to Special Agent McDonough, that he had watched two
individuals in a PT Cruiser, traveling on I-95, followed by a marked
police car. He observed the police car approximately 5 to 6 cars
behind the PT Cruiser for about 10 miles, and then both vehicles
pulled into a parking lot, and the marked police car eventually con-
tinued out of sight. Ihosvany Cuervo, a detective for the City of
Miami Internal Affairs Anti-Corruption Unit, had conducted sta-
tionary surveillance for both transports. He told the jury that
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during the second transport, he heard radio communication be-
tween the marked police car and the PT Cruiser.
Following jury deliberations, McLendon, Bryant and Mack
were convicted of conspiracy to distribute cocaine. Also, Mack was
convicted as a principal of possession of a firearm in furtherance of
a drug trafficking crime, and McLendon and Bryant were convicted
as aiders and abettors.
The question currently before us is whether -- based on the
government’s failure to disclose prior to trial that Special Agent
Jackson had engaged in misconduct both before and during the de-
fendants’ trial -- there is a reasonable probability that the outcome
of McLendon’s firearm charge would have been different if the ex-
culpatory evidence had been disclosed. Stein,
846 F.3d at 1145–46.
We do not believe that there is, because the record reflects that
there was ample evidence -- besides Special Agent Jackson’s testi-
mony -- to support McLendon’s firearm conviction. As we’ve just
detailed (and as a panel of this Court expressly noted in reviewing
McLendon’s direct appeal), there was testimony from several
agents conducting surveillance indicating that a marked patrol car
trailed McLendon and Bryant’s vehicle for both drug transactions.
Mack, 572 F. App’x at 913–14. There also was radio communica-
tion between the patrol car and McLendon and Bryant’s vehicle
during the second escort, further showing that McLendon and Bry-
ant were aware of its presence. Plus, Detective Tyson testified that
he had seen a firearm in Mack’s gunbelt when he was with Bryant
earlier in the day of the second transport, and in a recording the
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10 Opinion of the Court 21-13480
jury heard, Bryant referred to McLendon as his “point man” and
“brother” and said they’d share payments, suggesting that McLen-
don was fully in on the plans. On this record, it was more than
reasonable to conclude that McLendon believed that the marked
police cruiser following his vehicle closely during a drug transport
for eight to ten miles was driven by an armed officer.
As for Jackson’s testimony, it is unclear what testimony he
offered that would have been material to McLendon’s firearm con-
viction. Jackson told the jury that the only communication he’d
had with McLendon was during their in-person meetings on the
dates of the two sham drug transfers. Notably, both of these inter-
actions were recorded and played before the jury. We simply do
not see how his testimony was relevant to the firearm conviction.
In short, even if Special Agent Jackson’s misconduct been
disclosed, the other evidence at trial still showed that McLendon
knew that Mack would carry a gun during the drug transactions,
and we can see no reasonable probability that the result of the pro-
ceeding would have been different. Accordingly, we affirm as to
this issue.
III.
We also find no merit in McLendon’s claim that the district
court abused its discretion by denying his requests for an eviden-
tiary hearing and limited discovery. An evidentiary hearing must
be held on a motion to vacate “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled
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to no relief.”
28 U.S.C. § 2255(b); Winthrop-Redin v. United States,
767 F.3d 1210, 1216 (11th Cir. 2014). “[A] district court need not
hold a hearing if the allegations are patently frivolous, based upon
unsupported generalizations, or affirmatively contradicted by the
record.” Winthrop-Redin,
767 F.3d at 1216 (quotations omitted).
In McLendon’s appeal from the denial of his new trial mo-
tion, a prior panel of this Court expressly said -- concerning McLen-
don’s drug convictions -- that “had Agent Jackson’s misconduct
been disclosed, there is not a reasonable probability that the result
of the proceeding would have been different.” Bryant, 780 F. App’x
at 747. In that decision, we affirmed the district court’s finding that
the verdict against McLendon was amply supported by recordings
of his interactions with Jackson and Tyson, and thus held, even ab-
sent Jackson’s testimony, that he likely would have been convicted
of the drug charges. As for the firearm charge at issue in this ap-
peal, even if we assume it is not procedurally defaulted, McLen-
don’s Brady argument fails for the reasons we’ve already detailed
above. Thus, because there is no amount of additional evidence of
Jackson’s misconduct that would have created the reasonable prob-
ability of a different outcome for McLendon’s drug or firearm con-
victions, the district court did not abuse its discretion by denying
McLendon’s Brady claim without first allowing limited discovery
or an evidentiary hearing on the status of the investigation. See
Winthrop-Redin,
767 F.3d at 1216.
Accordingly, we also affirm in this respect.
AFFIRMED.
