In re CCA Recordings 2255 Litig.

1

In re CCA Recordings 2255 Litigation, Petitioners, v. United States of America, Respondent.

(This Document Relates to

United States v. Steven M. Hohn, No. 12-cr-20003-03-JAR, Steven M. Hohn v. United States, No. 19-cv-2082-JAR-JPO)

No. 19-cv-2491-JAR-JPO

United States District Court, D. Kansas

December 9, 2021

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Petitioner Steven M. Hohn's Motion to Vacate and Discharge with Prejudice under 28 U.S.C 2255 (Doc. 718 in Case No. 12-20003-03-JAR).^[1]Petitioner alleges the government violated the Sixth Amendment by intentionally and unjustifiably intruding into his attorney-client relationship by becoming privy to his attorney-client communications. As a remedy, he asks the Court to vacate his judgment with prejudice to refiling or, alternatively, to vacate his sentence and impose a new sentence of 180 months a 50% reduction of his original custodial sentence. Also before the Court is the government's Motion for Reconsideration or Clarification (Doc. 958) of a pre-hearing decision on several legal matters, which the Court deferred ruling on and will address in this Order, and the government's Motion in Limine (Doc. 983). An evidentiary hearing was held August 9 and 10, 2021. At the close of the hearing, the Court directed the parties to submit proposed findings of fact and conclusions of law.

The Court has carefully reviewed the parties' submissions as well as the testimony and evidence presented at the hearing and is prepared to rule. For the reasons explained below, the Court denies the government's Motion for Reconsideration, clarifies its ruling on several legal issues, and denies its Motion in Limine. The Court also denies Hohn's § 2255 motion on the merits.

I. Background and Procedural History

Hohn was indicted on January 25, 2012, on drug and gun charges.^[2] He was detained at Corrections Corporation of America (“CCA”) from January 27, 2012, to March 28, 2014.^[3] The investigation that led to Hohn's arrest was led by Deputy Perry Williams in the Johnson County, Kansas Sheriff's Office (“JSCO”) and JSCO Deputy Nathaniel Denton, as well as Christopher Farkes, a Task Force Officer (“TFO”) with the Drug Enforcement Administration (“DEA”). Assistant United States Attorney (“AUSA”) Terra Morehead in the Kansas City Office of the United States Attorney (“USAO”) prosecuted Hohn. The criminal case was assigned to Judge Carlos Murguia, who presided over pretrial, trial, sentencing, and post-trial matters until February 21, 2020, when the case was reassigned to the undersigned after Judge Murguia resigned from the bench.^[4] The court initially appointed Assistant Federal Public Defender Tim Burdick to represent Hohn. On April 23, 2012, the court appointed James Campbell as substitute counsel. Hohn placed a call to Campbell from CCA that day.

On May 22, 2012, Hohn was charged in a multi-defendant Second Superseding Indictment with conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine; possession of a firearm by a user of controlled substances; and possession of an unregistered short-barreled shotgun. Many of the conspirators reached plea agreements with the government and testified against Hohn and his co-defendant, Michael Redifer, at their trial. After a twelve-day trial, a jury convicted Hohn on all counts. On January 28, 2014, Judge Murguia imposed a 360-month sentence, followed by a five-year term of supervised release.

Hohn appealed his conviction and sentence to the Tenth Circuit Court of Appeals.^[5] On appeal, Hohn raised six issues regarding trial errors and one regarding his sentence: the court erred in finding his Guideline offense level should be increased two levels for imported drugs. The court affirmed on all grounds.^[6] On June 15, 2016, Judge Murguia denied Hohn's motion to reduce his sentence to the new low-end of the advisory Guideline range, 292 months, pursuant to 18 U.S.C. § 3582(c)(2).^[7]

In the course of the litigation in Black, it was discovered that the government had obtained recordings of phone calls that detainees placed to counsel from CCA. The government produced some of these recordings to the Federal Public Defender (“FPD”) on January 7, 2019, including the April 23, 2012 call that Hohn made to Campbell. The FPD filed this § 2255 motion on Hohn's behalf on February 2, 2019. The Court denied the government's motion to dismiss on procedural default and timeliness grounds under § 2255(f)(4) and set the motion for evidentiary hearing.^[8] The Court subsequently denied the government's motion to reconsider its decision to grant Hohn an evidentiary hearing, but corrected its description of his sworn statement in its order.^[9]

The Court conducted an evidentiary hearing on Hohn's Sixth Amendment claim on August 9 and 10, 2021. The Court subsequently denied as futile Hohn's motion for leave to supplement or amend his § 2255 motion to allege that AUSA Morehead violated his due process rights under Brady v. Maryland^[10] and Giglio v. United States^[11] based on evidence that came to light at the hearing.^[12]

II. Sixth Amendment Standard

The Court assumes the reader is familiar with its ruling in United States v. Carter (“Black Order”) that precipitates the motions before the Court.^[13] That comprehensive opinion was intended to provide a record for future consideration of the many anticipated motions filed pursuant to § 2255 and is incorporated by reference herein. The Court also assumes the reader is familiar with its January 18, 2021 Order in the consolidated master case that frames the issue before the Court (“January 18 Order”).^[14] That Order addressed the governing standard for Sixth Amendment intentional-intrusion claims under Shillinger v. Haworth, and is incorporated by reference herein.^[15] The Court will provide excerpts from these Orders as needed to frame and inform its discussion of the issues presently before it.

A. Overview

The Sixth Amendment provides that a criminal defendant shall have the right to “the Assistance of Counsel for his defence.”^[16] Claims of government intrusion into the attorney-client relationship like those at issue here are included in the category of cases to be considered when deciding if a defendant has been denied the right to effective assistance of counsel. The Supreme Court has explained that this right has been accorded “not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.”^[17]

In general, to prevail on an ineffective assistance of counsel claim under the Sixth Amendment, a petitioner has the burden of showing a reasonable probability of prejudice.^[18] In Strickland v. Washington, the Supreme Court set forth the familiar two-prong standard for evaluating ineffective assistance of counsel: that counsel's performance was deficient and that deficiency prejudiced the defense.^[19] The prejudice requirement, which is at issue in this case, “arises from the very nature of the right to effective representation.”^[20] In other words, “a violation of the Sixth Amendment right to effective representation is not ‘complete' until the defendant is prejudiced.”^[21]

Relevant here, the Sixth Amendment right to effective assistance of counsel includes the ability to speak candidly and confidentially with counsel free from unreasonable government interference.^[22] The Supreme Court has held that the government violates the Sixth Amendment when it intentionally interferes with the confidential relationship between defendant and defense counsel and that interference prejudices the defendant.^[23] The Court did not, and still has not, resolved “the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information.”^[24] As discussed in detail in the January 18 Order, federal appellate courts are divided on the issue in cases where the prosecution intentionally obtained, without any legitimate justification, confidential attorney-client information.^[25] As discussed below, the Tenth Circuit has found a per se violation of the Sixth Amendment once the defendant demonstrates that the prosecution improperly intruded into the attorney-client relationship.^[26]

B. Shillinger v. Haworth

In Shillinger, the prosecutor solicited information about the defendant's pre-trial preparation sessions from a sheriff's deputy who was present in the courtroom and used that information at trial to impeach the defendant and again in closing argument.^[27] The Tenth Circuit held that the prosecutor's intentional intrusion into the attorney-client relationship constitutes a direct interference with the Sixth Amendment rights of a defendant; absent a countervailing state interest, such an intrusion constitutes a per se violation of the Sixth Amendment.^[28] In other words, when the government becomes privy to confidential communications because of its unjustified, purposeful intrusion into the attorney-client relationship, “a prejudicial effect on the reliability of the trial process must be presumed.”^[29] The Tenth Circuit clarified, however, that this per se rule “in no way affects the analysis to be undertaken in cases in which the state has a legitimate law enforcement purpose for its intrusion.”^[30] Such cases would require proof of prejudice, or “‘a realistic possibility of injury to [the defendant] or benefit to the [government]' in order to constitute a violation of a defendant's Sixth Amendment rights.”^[31]

The court further recognized that even where there has been an unjustified intrusion resulting in a per se Sixth Amendment violation...