United States District Court, D. Minnesota
M. Hollenhorst, Esq., Assistant United States Attorney,
United States Attorney's Office, Minneapolis, MN, on
behalf of Plaintiff.
Michelle Hunter, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE.
20, 2016, Defendant Eric Michelle Hunter
(“Hunter”) filed a Motion to Vacate under 28
U.S.C. § 2255 [Criminal Docket No. 348]. For the reasons
set forth below, Hunter's motion is denied.
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]. 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].
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.
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
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].
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).
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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
24, 2012, Hunter, Gilow, and Harvey were arrested. Police
searched Hunter and Gilow's apartment and seized, among
other things, 167 grams of heroin.
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].
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].
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.
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.
Section 2255 Standard
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.
Ineffective Assistance of Counsel Claims
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.
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
Prior to Trial
Challenges to the Indictment
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
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)).
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.
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 ...