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United States v. Hunt

United States District Court, D. North Dakota

April 26, 2018

United States of America, Plaintiff,
v.
Christopher Hunt, Defendant. Christopher Hunt, Petitioner,
v.
United States of America, Respondent.

          ORDER DENYING DEFENDANT'S MOTION FOR HABEAS RELIEF

          DANIEL L. HOVLAND, CHIEF JUDGE

         Before the Court is Defendant Christopher Hunt's Motion to Vacate under 28 U.S.C. § 2255 filed on May 22, 2017. See Docket No. 51. The Government filed a response in opposition to the motion on August 10, 2017. See Docket No. 62. Hunt filed a reply on October 2, 2017. See Docket No. 65. For the reasons outlined below, the motion is denied.

         I. BACKGROUND

         On October 7, 2015, Hunt was charged with one count of receipt of materials involving the sexual exploitation of minors in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1) (Count One) and one count of possession of materials involving the sexual exploitation of minors in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) (Count Two). See Docket No. 1. On January 15, 2016, a written plea agreement was filed. See Docket No. 30. The terms of the plea agreement called for Hunt to plead guilty to Count Two of the indictment, possession of materials involving the sexual exploitation of minors. In the plea agreement, the Government agreed to dismiss Count One and recommend a sentence within the applicable Sentencing Guideline range. Count Two carried a maximum sentence of 120-months while Count One carried a maximum sentence of 240-months. The parties anticipated a total offense level of 28.

         The Presentence Investigation Report (“PSR”) was filed on May 6, 2016. See Docket No. 37. The PSR found a total offense level of 28. See Docket No. 37, ¶ 26. The PSR revealed Hunt had no criminal history and thus he was placed in criminal history category I. See Docket No. 37, ¶ 31. An offense level of 28 combined with a criminal history category I results in an advisory Sentencing Guideline range of 78-97 months.

         On May 17, 2016, a combined change of plea and sentencing hearing was held at which time Hunt pled guilty to Count Two. See Docket No. 58, p. 23. The Government called one witness during the sentencing phase of the hearing, Hunt's sister J.A. See Docket No. 58, p. 26. Counsel for Hunt objected to her testimony because the Government did not give any advance notice to the defense that J.A. would be testifying. J.A. testified that Hunt had sexually abused her when she was a young child and he was in his early teens. See Docket No. 58, p. 26-33. Defense counsel cross-examined J.A. At the time of the hearing, Hunt was approximately 48 years old and J.A. was approximately 38 years old. During allocution, the Court asked Hunt if he wanted to apologize to J.A. See Docket No. 58, p. 50. Hunt apologized but maintained the abuse was not as severe as his sister had described. See Docket No. 58, pp. 50-56.

         The Government recommended a sentence of 85-months. See Docket No. 58, p. 37. Defense counsel asked for a sentence of 36-months. See Docket No. 58, p. 38. The Court accepted the PSR without change, found an adjusted offense level of 28, criminal history category I, an advisory Sentencing Guideline range of 78-97 months, and sentenced Hunt to 96-months imprisonment. See Docket No. 58, pp. 57-58. No appeal was taken.

         On May 22, 2017, Hunt filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See Docket No. 51. In his motion, Hunt raises seven claims for relief. All the claims relate to the testimony of J.A. at sentencing. Most of the claims are based on alleged ineffective assistance of counsel although there is also reference to a due process violation and Fifth Amendment self-incrimination violation. Hunt does not wish to withdraw his guilty plea. Rather, he asks to be resentenced by a different judge and given a 36-month sentence.

         II. STANDARD OF REVIEW

         “28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his ‘sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a “fundamental defect” resulting in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A 28 U.S.C. § 2255 motion is not a substitute for a direct appeal, and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A 28 U.S.C. § 2255 movant “must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is “intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343.

         III. LEGAL DISCUSSION

         The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. To be eligible for habeas relief based on ineffective assistance of counsel, a defendant must satisfy the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a defendant must establish that defense counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. This requires showing that counsel made errors so serious that defense counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment. Id. at 687-88. In considering whether this showing has been accomplished, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. If the underlying claim (i.e., the alleged deficient performance) would have been rejected, defense counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). Courts seek to “eliminate the distorting effects of hindsight” by examining defense counsel's performance from counsel's perspective at the time of the alleged error. Id.

         Second, it must be demonstrated that defense counsel's performance prejudiced the defense. Strickland, 466 U.S. at 687. In other words, under this second prong, it must be proven that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. at 694. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). In a guilty plea context, a defendant must establish a reasonable probability that he would not have pled guilty and would have exercised his right to a trial but for counsel's ineffectiveness. Hill v. Lockart, 474 U.S. 52, 59 (1985). Merely showing a conceivable effect is not enough. Id. An increased prison term may constitute prejudice under the Strickland standard. Glover v. United States, 531 U.S. 198, 203 (2001).

         There is a strong presumption that defense counsel provided “adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690; Vogt v. United States, 88 F.3d 587, 592 (8th Cir. 1996). A court reviewing defense counsel's performance must make every effort to eliminate hindsight and second-guessing. Strickland, 466 U.S. at 689; Schumacher v. Hopkins, 83 F.3d 1034, 1036-37 (8th Cir. 1996). Under the Strickland standard, strategic decisions that are ...


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