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United States v. Hunter

United States District Court, D. Minnesota

November 22, 2016

United States of America, Plaintiff,
Eric Michelle Hunter, Defendant. Civil No. 16-1422 ADM

          Thomas M. Hollenhorst, Esq., Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Eric Michelle Hunter, pro se.




         On May 20, 2016, Defendant Eric Michelle Hunter (“Hunter”) filed a Motion to Vacate under 28 U.S.C. § 2255 [Criminal Docket No. 348].[1] For the reasons set forth below, Hunter's motion is denied.


         A. Pretrial

         On July 16, 2012, Hunter, Rikki Lee Gilow (“Gilow”), and Jerry Anthony Harvey (“Harvey”) were charged in a 20-count Indictment [Docket No. 1] for narcotics and firearms offenses. Hunter, represented by counsel, filed nine evidentiary and discovery motions. See [Docket Nos. 42-50].[2] Gilow and Harvey also filed pretrial motions. On October 9, 2012, Gilow pled guilty to Count 1, conspiracy to distribute controlled substances. See Min. Entry [Docket No. 84].

         Hunter's trial was set for December 17, 2012. On October 17, 2012, Hunter requested new counsel. See Min. Entry [Docket No. 86]. Attorney Thomas C. Plunkett (“Plunkett”) was appointed to represent Hunter. See Order [Docket No. 88]. However, on November 20, 2012, Hunter advised the Court that he would rather represent himself and have Plunkett appointed as standby counsel. See Min. Entry [Docket No. 104]. On November 26, 2012, after a Faretta hearing was held to determine whether Hunter fully and completely understood his rights to proceed pro se, Hunter was granted leave to represent himself and Plunkett was appointed standby counsel. See Order [Docket No. 95]. As standby counsel, Plunkett was to be ready to assist Hunter in the preparation of his defense. Id.

         Hunter then filed additional pretrial motions with Plunkett's assistance. See [Docket Nos. 96-102, 105, 109-121, 123]. On December 10, 2012, Hunter was charged in a 22 count Superseding Indictment [Docket No. 107]. The narcotics and firearm offenses charged in the Superseding Indictment included the charges in the original Indictment, but the narcotics offenses were supplemented to include the description and the amount of drugs alleged and one firearm count was amended to allege that the firearm was a machine gun. The Superseding Indictment charged Hunter with one additional narcotics offense as well as a new count alleging witness tampering.

         On December 20, 2012, Hunter, Plunkett, and the Government appeared for a second motions hearing before Magistrate Judge Franklin L. Noel. See Min. Entry [Docket No. 132]. Hunter, with Plunkett's assistance, filed a memorandum in support of his pretrial motions. See Mem. [Docket No. 136]. Hunter and Plunkett later, after Judge Noel had ruled on many of the earlier motions, filed additional pretrial motions. See Order [Docket No. 140]; [Docket Nos. 154-56, 158]. After Judge Noel issued a Report and Recommendation [Docket No. 162] ¶ 12 earlier motions, Hunter and Plunkett filed Objections [Docket No. 172] to the Report and Recommendation. Hunter and Plunkett continued to file pretial motions leading up to trial. See [Docket Nos. 166-67, 173, 190, 192].

         On February 12, 2013, the Government moved to dismiss Counts 3 through 12 of the Superseding Indictment [Docket No. 183]. The remaining charges against Hunter were one count of conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; four counts of aiding and abetting the distribution of controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2; two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); one count of aiding and abetting using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i); one count of aiding and abetting using and carrying a machine gun during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(C)(ii); two counts of possession with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(1).

         The first day of trial was February 19, 2013. Prior to voir dire, the Court inquired of Hunter if he still desired to represent himself. Tr. [Docket No. 286] at 3:23-4:8.[3] Hunter responded he now wanted Plunkett to represent him during the trial. Id. 4:9-10. The Court asked Plunkett if he was prepared and ready to proceed, to which he replied that he was. Id. 5:12-17. Jury selection then proceeded.

         B. Trial Testimony

         Between September 2011 and May 2012, undercover agents completed several controlled buys of controlled substances and firearms. Evidence introduced at trial included text messages, audio and video recordings, and the testimony of the undercover agents who communicated with and made the controlled buys from Hunter and his co-defendants.

         The first controlled buy occurred on September 14, 2011. Using a confidential informant, officers arranged for the purchase of 50 ecstacy tablets. Id. 61:7-10. Officers observed the confidential informant first speak with a male individual before purchasing the ecstacy through the back window of a vehicle driven by a woman. Id. 64:14-65:16. The driver of the vehicle was later identified as Gilow; the male individual was later identified as Hunter. Id. 65:19-66:17. Officer Steven Stoler (“Stoler”), posing as a drug dealer, made additional controlled substance purchases from Gilow over the following months.

         Eventually, Officer Stoler facilitated introducing Gilow to Agent Robert Almgren (“Almgren”) from the Bureau of Alcohol, Tobacco, and Firearms. Id. 133:12-15. Agent Almgren was posing as a member of a motorcycle gang from Wisconsin who was interested in purchasing drugs and guns. Id. 236:16-18. On April 17, 2012, Agent Almgren negotiated for the purchase of 25 grams of heroin. Id. 245:23-246:3. Officer Stoler later met Gilow and exchanged $2, 500 for the heroin. Id. 139:17-2. Gilow asked Officer Stoler what else he was interested in purchasing. Id. 141:19-20. Officer Stoler responded by making a hand motion of a gun. Id.

         Around this time Agent Almgren started communicating directly with Hunter. Id. 247:8-17. During their discussions of purchasing narcotics and firearms, Hunter stated he had a new firearm for sale. Id. 249:7-15. On April 20, 2012, Agent Almgren and Officer Stoler met with Gilow and Harvey. Id. 143:23-144:10. After speaking with Hunter on the telephone, Agent Almgren and Officer Stoler purchased three ounces of heroin from Harvey and Gilow for $7, 500. Id. 146:12-148:10. Officer Stoler said he had additional money to purchase a firearm, but Harvey said he did not have the firearm with him. Id. 147:18-22.

         On May 2, 2012, Agent Almgren and Hunter met in a restaurant. Id. 283:21-284:3. The jury listened to an audio clip of Agent Almgren and Hunter's conversation inside the restaurant. In the taped conversation, Hunter tells Agent Almgren that he has “everything in the city.” “Guns, everything. Ice, everything.” Id. 292:17-293:1. Later that same night, Agent Almgren met Hunter and Gilow and purchased a firearm and approximately three ounces of heroin for $7, 800. Id. 309:19-312:18.

         On May 16, 2012, Officer Stoler spoke with Gilow on the phone. Id. 167:6-8. Gilow stated that “my guy wants to talk to you.” Id. 168:7-9. Hunter then got on the phone. Id. 168:11-12. The two discussed firearms, and their conversation ended with Hunter telling Officer Stoler to arrange for Agent Almgren to pick up a firearm. Id. 169:9-16. Gilow resumed speaking, and the two discussed a sale of narcotics, which occurred later that day. Id. 174:3-11.

         On May 17, 2012, Officer Stoler received a picture of a firearm and a message on his phone. Id. 196:12-197:5. The message read, “Hey send this to dude, get at me asap so we know if he gone be down here and we can get together.” Id. 201:9-10. In a later phone conversation, Hunter asked Agent Almgren if he liked the picture of the firearm. Id. 331:6-18. Agent Almgren replied yes and asked Hunter if it goes “bang, or does it go rat-a-tat-tat-tat-tat-tat?” Id. 332:16-17.

         On May 22, 2012, Officer Stoler and Hunter discussed purchasing heroin and a firearm. Id. 202:23-24. Hunter agreed to sell Officer Stoler one ounce of heroin and the firearm shown in the May 17 cell phone picture for $3, 800. Id. 210:2-211:8. The transaction was completed later that same day. Id. 213:13-215:12.

         On July 24, 2012, Hunter, Gilow, and Harvey were arrested. Police searched Hunter and Gilow's apartment and seized, among other things, 167 grams of heroin.

         C. Post-Trial

         On February 22, 2013, after a four day trial, the jury found Hunter guilty of all counts in the Superseding Indictment. The Presentence Investigation Report (“PSR”) determined that because Hunter was a career offender, his base offense level was 37, his criminal history category was VI, and his sentencing guideline range was life imprisonment. PSR ¶ 65. Hunter, through attorney Plunkett, challenged the applicability of the career offender designation, arguing that his adjusted offense level was 30 and that his criminal history category was IV, resulting in a sentencing guideline range of 135 to 168 months imprisonment. See Position on Sentencing/Sentencing Mem. [Docket No. 264].

         On June 25, 2013, Hunter was sentenced to concurrent terms of life imprisonment for Counts 1 and 21, conspiracy to distribute controlled substance and possession with intent to distribute controlled substances; 240 months imprisonment for Counts 2, 13, 14, 16, 17, 18, 20, and 22-controlled substances, firearms, and witness tampering offenses-to be served concurrently to each other and Counts 1 and 21; 60 months imprisonment for Count 15, using and carrying a firearm during and in relation to a drug trafficking crime, to be served consecutively to Counts 1, 2, 13, 14, 16, 17, 18, 20, 21, and 22; and life imprisonment for Count 19, using and carrying a machine gun during and in relation to a drug trafficking crime, to be served consecutively to all counts. See Sentencing J. [Docket No. 269].

         Hunter timely appealed. See Notice Appeal [Docket No. 273]. The issues raised on appeal were whether: 1) a dog sniff violated the Fourth Amendment; 2) prosecutorial misconduct during examination of government witnesses and closing arguments denied Hunter a fair trial; and 3) three life sentences violated Hunter's Sixth Amendment rights. On October 28, 2014, the Eighth Circuit affirmed the sentence. See Op. USCA [Docket No. 311]; United States v. Hunter, 770 F.3d 740 (8th Cir. 2014). The Eighth Circuit noted that, while his appeal was pending, Hunter filed a motion for appointment of new counsel, complaining that Plunkett was not ordering transcripts and raising appealable issues. Hunter, 770 F.3d at 746. That motion, and a subsequent motion to reconsider, was denied. Id. After Plunkett filed the appeal brief, Hunter filed a Motion for Leave to File a Pro Se Supplemental Brief and a pleading entitled Supplementary Memorandum Proposed Findings of Fact and Conclusions of Law. Those motions were also denied because “[i]t has long been Eighth Circuit policy ‘that when a party is represented by counsel, we will not accept pro se briefs for filing.'” Id. (quoting United States v. Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990) cert. denied, 502 U.S. 948 (1991)). The Eighth Circuit noted that “Hunter has demonstrated a persistent unwillingness to accept the advice and assistance of appointed counsel-except when it suits him. Now, he submits multi-page pro se filings on appeal, seeking to raise issues of ineffective assistance of trial and appellate counsel, which we almost never take up on direct appeal. . . .” Id.

         Hunter's current Motion asserts 27 grounds for setting aside his conviction and sentence. Hunter raises numerous objections to Plunkett's representation as well as Due Process, Sixth, and Fifth Amendment violations.


         A. Section 2255 Standard

         28 U.S.C. § 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries which were outside a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987).

         B. Ineffective Assistance of Counsel Claims

         Hunter attacks his counsel's representation before, during, and after trial. Hunter argues that Plunkett's representation was ineffective for myriad reasons, including failing to object to specific jury instructions, failing to communicate defense strategy, and failing to object to Hunter's earlier assault conviction as a crime of violence under the career offender provisions. The Government responds that none of Hunter's arguments has merit.

         In Strickland v. Washington, the Supreme Court set forth the standard for claims of ineffective assistance of counsel. 466 U.S. 668 (1984). To properly demonstrate a claim, a defendant must show that his attorney's representation fell below an objective standard of reasonableness. Id. at 687-88. The defendant must also demonstrate that a reasonable probability exists that but for the attorney's errors, the result of the proceeding would have been different. Id. at 694. “[W]hen reviewing an ineffective-assistance-of-counsel claim, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Woods v. Donald, 135 S.Ct. 1372, 1375 (2015) (quotations omitted).

         1. Prior to Trial

         a. Challenges to the Indictment

         Two of Hunter's claims relate to his counsel's failure to challenge the lawfulness of the Indictment. Hunter argues that his counsel should have moved to dismiss the Indictment because of perjured grand jury testimony and for double jeopardy violations.

         Any concerns over Plunkett's representation related to grand jury proceedings are obviated by the petit jury's guilty verdict at trial. U.S. v. Dunn, 723 F.3d 919, 928 (8th Cir. 2013). Hunter's double jeopardy argument is his pretrial detention constituted punishment and, thus, he was being punished for conduct before he was convicted of an offense. However, “[p]retrial detention does not trigger the attachment of ‘jeopardy' so as to invoke the protection of the Double Jeopardy Clause.” United States v. Head, No. 06-3873, 2007 WL 2026391, at *4 (D. Minn. July 9, 2007) (quoting United States v. Warneke, 199 F.3d 906, 908 (7th Cir. 1999)).

         b. Severance

         Hunter argues that Plunkett was ineffective for not seeking severance of the firearm charges. Hunter contends that but for the firearm charges, the jury would not have heard testimony about his criminal history.

         The trial record reflects that Hunter entered into an Old Chief stipulation. Pursuant to the stipulation, the jury's knowledge of Hunter's criminal history was limited to “previous to May 2, 2012, the defendant was convicted of a felony crime punishable by imprisonment for a term exceeding one year.” Tr. at 328:2-4. An Old Chief stipulation is designed to both inform the jury about the sufficiency of an element in a § 922(g) charge-that the accused has been previously convicted of a crime punishable by imprisonment for a term exceeding one year-while blunting the risk of prejudice through the introduction of evidence that highlights the defendant's criminal history. Old Chief v. United ...

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