United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION FOR HABEAS
L. HOVLAND, CHIEF JUDGE
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.
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
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.
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.
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.
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.
STANDARD OF REVIEW
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
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.
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).
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