Hunter v. United States

1

ERIC COURTNEY HUNTER, Defendant-Movant, v. UNITED STATES OF AMERICA, Plaintiff-Respondent.

Nos. 1:21-cv-00037-BLW, 1:17-cr-00037-BLW

United States District Court, D. Idaho

March 29, 2023

MEMORANDUM DECISION AND ORDER

B LYNN WINMILL, U.S. DISTRICT COURT JUDGE

Before the Court is Eric Courtney Hunter's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 129 in Crim. Case No. 1:17-cr-00037-BLW and Dkt. 1 in Civ. Case No. 1:21-cv-00037-BLW), Motion for Evidentiary Hearing (Civ. Dkt. 13), Motion Requesting Status Conference (Civ. Dkt. 15), and Motion to Compel (Civ. Dkt. 16). The Court has reviewed the record and the submissions of the parties. For the reasons set forth below, the Court dismisses the § 2255 Motion. The Motion for Evidentiary Hearing is denied, and the remaining motions are moot.

BACKGROUND

On December 13, 2017, a Superseding Indictment was filed charging Hunter with one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) on or about December 6, 2016, having been convicted of a crime punishable by imprisonment for a term exceeding one year, and one count of unlawful possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) on or about January 6, 2017, having been convicted of a crime punishable by imprisonment for a term exceeding one year. Crim. Dkt. 33.

Each count referred to the same predicate offense: Intimidating a Witness, on May 29, 2015, Case No. CR-2013-10683, in the District Court of the Fifth Judicial District of the State of Idaho. Id. Each count also involved the same firearm: a Maverick Arms, Model 88, 12-gauge shotgun with an obliterated serial number, and Count Two also included twenty-one Winchester 12-gauge shotgun shells. Id. The first incident involved firing a shotgun in the home where Hunter was residing. The second incident involved finding the same shotgun in the BMW he was driving at the time of his arrest that the home's owner had reported stolen along with $27,000 in cash.

On May 26, 2017, the Court entered an order granting defense counsel's motion for a competency evaluation. Order, Crim. Dkt. 25. On November 8, 2017, after the BOP evaluator indicated that there was insufficient evidence of incompetence to stand trial due to Hunter's refusal to participate in testing, the Court granted Hunter's motion to be returned to the BOP for further evaluation. Min Entry, Crim. Dkt. 30; Order, Crim. Dkt. 31.

On January 26, 2018, counsel for Hunter and the Government stipulated to Hunter's prior conviction and interstate transportation of the shotgun and ammunition. Crim. Dkt. 51. On January 30, 2018, the Court held a second competency hearing, determined that Hunter was competent to stand trial, advised Hunter of the mandatory minimum if sentenced as an Armed Career Criminal, and took his plea of not guilty. Min. Entry, Crim. Dkt. 65; Tr. Crim. Dkt. 117.

The case proceeded to trial on January 31, 2018, and concluded with the jury's verdict of guilty as to both counts on February 5, 2018. Min. Entries, Crim. Dkts. 68-72. It is noteworthy that Hunter refused to attend the final day of trial during which the Court instructed the jury, and he subsequently waived his right to participate in the presentence interview and to attend his sentencing. The Court found his absence to be knowing and voluntary. See Trial Tr. at 373-77, Crim. Dkt. 114; Waiver of All Rights to Participate in Sentencing Process and Attendance at the Sentencing Hearing, Crim. Dkt. 81.

On August 23, 2018, the Court imposed a sentence of imprisonment of 262 months to be followed by five years of supervised release on each count to run concurrently. Judgment, Crim. Dkt. 105. The Court had applied two enhancements at sentencing: under USSG § 2K2.1(b)(6)(B) based on the Court's finding that Hunter possessed the shotgun in connection with the theft of the BMW, and under USSG § 3C1.1 based on the Court's finding that a threatening voicemail Hunter left on the presentence investigator's phone constituted obstruction of justice. On November 13, 2019, the Ninth Circuit affirmed the application of both enhancements. USCA Mem., Crim. Dkt. 120. His Petition for Rehearing and Petition for Rehearing En Banc were denied on January 29, 2020. USCA Order, Crim. Dkt. 125. After his conviction but while his appeal was pending, the Supreme Court decided Rehaif v. United States, 139 S.Ct. 2191 (2019), addressing the proof required for a prosecution under 18 U.S.C. § 922(g) prohibiting firearm possession by nine different categories of individuals.

On January 25, 2021, Hunter timely filed his pending § 2255 Motion. He alleges that pursuant to Rehaif, the Government was required to but failed to prove that he knew that he had been previously been convicted of a felony, that trial and appellate counsel provided ineffective assistance in several respects, and that appellate counsel provided ineffective assistance by failing to raise the Rehaif issue.

STANDARD OF LAW

1. 28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides four grounds upon which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and (4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing § 2255 Proceedings provides that a court must dismiss a § 2255 motion “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” “Under this standard, a district court may summarily dismiss a § 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.'” United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted).

The court may also dismiss a § 2255 motion at various stages, including pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.

If the court does not dismiss the proceeding, the court then determines under Rule 8 whether an evidentiary hearing is required. The court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

2. Ineffective Assistance of Counsel

A defendant is entitled to effective assistance of counsel at all “critical stages” of the criminal process, including trial, sentencing, and direct appeal. United States v. Leonti, 326 F.3d 1111, 1116-17 (9th Cir. 2003). To establish a claim for ineffective assistance of counsel, Petitioner must prove (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish that counsel's performance was deficient, a petitioner must show that counsel's performance fell below an objective standard of reasonableness. Id. at 688. To establish that counsel's performance prejudiced the defense, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”

More particularly with respect to the performance prong, a defendant must show that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result” or that “counsel made errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 686-87. There is a strong presumption that counsel's performance falls “with the wide range of reasonable professional assistance.” Id. at 689. This is so because “[it] is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act of omission of counsel was unreasonable.” Id.

The Strickland standard is “highly demanding” and requires consideration of counsel's “overall performance throughout the case,” Kimmelman v. Morrison, 477 U.S. 365, 382; 386 (1986), and “the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695.

Finally, in evaluating an ineffective assistance of counsel claim, the court may consider the performance and prejudice components of the Strickland test in either order. Id. at 697. The Court need not consider one component if there is an insufficient showing of the other. Id.

DISCUSSION

In its Response, the Government argues that Hunter's Rehaif claim is procedurally defaulted and without merit, that he was not denied effective assistance of counsel on the various grounds asserted, and that appellate counsel was not ineffective for failing to raise a Rehaif claim on appeal. Because two of the three claims pertain to Rehaif, the Court will briefly address the Rehaif decision before addressing the individual claims.

1. Rehaif Claims

Title 18 U.S.C. § 922 makes it unlawful for certain categories of individuals, including as relevant here, “any person who has...