United States v. Dodge

1

UNITED STATES OF AMERICA v. CODI DODGE (1)

CRIMINAL No. 6:17-cr-323

United States District Court, W.D. Louisiana, Lafayette Division

January 31, 2024

ELIZABETH E. FOOTE, JUDGE

REPORT AND RECOMMENDATION

David J. Ayo, United States Magistrate Judge

Before the Court are the original and amended MOTION UNDER 28 U.S.C § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY filed pursuant to 28 U.S.C. § 2255 by defendant Codi Dodge. Rec. Docs. 214, 223. Dodge challenges the effectiveness of his trial counsel. The government filed a response to the motion (Rec. Doc. 225) to which Dodge replied (Rec. Doc. 235). The motions, which have been referred to the undersigned Magistrate Judge for review report, and recommendation, are now ripe for review.

I. Factual Background

The convictions of Codi Dodge, the Deputy Chief of Investigations at the St. Martinville Police Department, resulted from his assault of Curtis Ozenne, a St. Martinville man whom Dodge suspected of stealing a window-mounted airconditioning unit from one of Dodge's rental properties.^[1]

The facts, as summarized by the Fifth Circuit, are as follows:

In August 2016, Codi Dodge, the Deputy Chief of Investigations for the St. Martinville Police Department in Louisiana, was notified that a window mounted air-conditioning unit was stolen from a home he owned and rented. Dodge and two other St. Martinville police officers, Kim Talley and Troy LeBlanc, drove to Dodge's rental property to investigate. When the officers arrived, they saw that an air-conditioning unit was missing from the front window of the home. Investigating the theft, Dodge asked neighbors whether they saw anyone take the window unit. A neighbor told Dodge that Curtis Ozenne was the thief. The officers then went to Ozenne's house.

Dodge and LeBlanc went to Ozenne's front door, and Talley went to the side of the house where the officers thought there was another door. Without Ozenne's consent, Dodge entered the home. Neither LeBlanc nor Talley accompanied Dodge inside the home. According to Ozenne, he was in the back of the house when Dodge entered. When Dodge called Ozenne's name, Ozenne left the back room and entered the hallway. It was then that he saw Dodge inside the home with his firearm drawn. Dodge began to question Ozenne about the missing air-conditioning unit, and a physical altercation ensued. Ozenne alleged that Dodge started by poking Ozenne in the face with Dodge's firearm, then hit Ozenne with the weapon, and also bit Ozenne on the chest. LeBlanc and Talley, who remained outside, did not see this altercation.

Following Ozenne's arrest, he filed a complaint with the FBI about Dodge's conduct. The FBI investigated Dodge's actions during Ozenne's arrest as well as Dodge's conduct during an unrelated arrest of another individual. As part of its investigation of Ozenne's arrest, the FBI contacted Talley and LeBlanc for interviews. Before those two officers spoke with the FBI, they met Dodge at the police station to “get their stories straight.” During the meeting, the officers concocted a story about Ozenne's arrest. Dodge and LeBlanc told the FBI the false story and drafted police reports to match their version of events. Talley, however, did not tell the FBI the false story; she told the FBI a sanitized version of the truth.

United States v. Dodge, 814 Fed. App'x 820, 821-22 (5th Cir. 2020).

II. Procedural Background

The FBI's investigation led to the grand jury returning a seven-count indictment charging Dodge with two counts of deprivation of rights under color of law in violation of 18 U.S.C. § 242, one count of conspiracy to tamper with a witness and make false reports in violation of 18 U.S.C. § 371, two counts of making a false record to impede an investigation in violation of 18 U.S.C. § 1519, one count of tampering with a witness in violation of 18 U.S.C. § 1512(b)(3), and one count of destruction of records in violation of 18 U.S.C. § 1519. Id. at 822. Kay Gautreaux was appointed to represent Dodge at the arraignment. Rec. Doc. 8. Kevin Stockstill and Katherine Guillot were later retained.

A jury trial began on October 29, 2018, and continued until November 5, 2018 when the jury returned a verdict of guilty as to Counts 2, 3, 5, and 6 and not guilty as to Counts 1 and 4. On February 14, 2019, Dodge was committed to the custody of the Bureau of Prisons for a term of 108 months as to Counts 2, 5, and 6 and 60 months as to Count 3, to run concurrently.

On May 19, 2020, the Fifth Circuit affirmed Dodge's conviction and sentence. The decision was issued as a mandate and entered into the district court record on June 10, 2020. The issues on appeal related to the evidence of Dodge's “other acts,” limitations on cross-examination, and the reasonableness of Dodge's sentence. Rec. Doc. 207.

III. Section 2255 Motion

Dodge timely filed the instant motion on October 13, 2020, alleging that he was “deprived of a fair trial where counsel rendered ineffective assistance during the pretrial, trial, and post-conviction stages of the trial proceedings.” (Rec. Doc. 214, p. 4). Specifically, he claims ineffective assistance (1) where defense counsel did not execute adequate cross-examination of key government witnesses (id. at p. 5); (2) where defense counsel failed to object to prosecutorial misconduct (id. at p. 6); (3) where counsel failed to timely advocate the government's abuse of the grand jury such that dismissal of the indictment is warranted (id. at p. 8); (4) where counsel failed to call Christian Feller and Chief Hebert as witnesses (id. at p. 8); (5) where counsel failed to present the defenses of “hot pursuit” and “community care taking function” (id. at p. 9); (6) where counsel failed to advocate for a special verdict form on the conspiracy offense to ensure a unanimous verdict by jurors (id. at p. 60); (7) where counsel failed to object to the court's response to the jury's note (id. at p. 62); and (8) where counsel failed to object to prosecutor's comments and closing arguments (id. at p. 66).

a. Law and Analysis

1. 28 U.S.C. § 2255

Following conviction and exhaustion or waiver of the right to appeal, the court presumes that a defendant “stands fairly and finally convicted.” United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 164 (1982)). Relief under § 2255 “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). “It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions.” United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). However, the collateral challenge process of § 2255 is no substitute for appeal. See, e.g., Brown v. United States, 480 F.2d 1036, 1038 (5th Cir. 1973). As a general rule, thus, claims not raised on direct appeal may not be raised on collateral review unless the defendant shows cause and prejudice for his failure, or actual innocence. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). This is neither a statutory nor constitutional requirement, but instead a “doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504 (2003). While it is generally the government's responsibility to raise the issue of procedural default, the court may still impose the bar sua sponte. United States v. Willis, 273 F.3d 592, 596-97 (5th Cir. 2001). However, this should not be done without first considering whether the defendant has been given notice of the issue and had opportunity to argue against application of the bar, and whether the government has intentionally waived the defense. Id. at 597 (citing Smith v. Johnson, 216 F.3d 521, 524 (5th Cir. 2000)).

2. Ineffective Assistance of Trial Counsel

Dodge raises numerous claims of ineffective assistance of counsel. Ineffective assistance claims may be brought for the first time in a collateral proceeding under § 2255 regardless of whether the defendant raised the issue earlier. Massasoit v. United States, 538 U.S. 500, 509 (2003). Therefore, review of this claim does not require a determination of whether a defendant raised all aspects of this claim on direct appeal. Id.; see also United States v. Johnson, 124 Fed. App'x 914, 915 (5th Cir. 2005).

Claims of ineffective assistance of counsel are gauged by the guidelines set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must demonstrate: (1) that his counsel's performance was deficient, requiring a showing that the errors were so serious such that he failed to function as “counsel” as guaranteed by the Sixth Amendment, and (2) that the deficiency so prejudiced the defendant that it deprived him of a fair trial or of a dependable verdict. 466 U.S. at 687. A defendant must satisfy both prongs of the Strickland test in order to prevail, and the court need not approach the inquiry in the same order or address both components should the defendant fail to satisfy one. Id. at 697.

The first prong does not require perfect assistance by counsel rather, defendant must demonstrate that counsel's representation fell beneath an objective standard of reasonableness. Id. at 687-88. In this review, courts “must make ‘every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from coun...