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United States v. Hunter

United States District Court, D. Minnesota

February 13, 2018

United States of America, Plaintiff,
v.
John Hunter, Sr., Defendant.

          Joseph H. Thompson, United States Attorney counsel for plaintiff.

          John Hunter, Sr., defendant pro se.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the motion by pro se defendant John Hunter, Sr. to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court denies the motion and denies a certificate of appealability.

         BACKGROUND

         On September 22, 2015, Hunter was charged with one count of conspiracy to defraud the United States, eight counts of presenting false claims to the government, and two counts of aggravated identity theft. On December 3, 2015, a jury convicted Hunter on all counts. Hunter appealed, and the Eighth Circuit Court of Appeals affirmed his conviction on July 10, 2017. Hunter now moves to vacate, set aside, or correct his sentence on several grounds.

         DISCUSSION

         Section 2255 provides a federal inmate with a limited opportunity to challenge the constitutionality, legality, or jurisdictional basis of a sentence imposed by the court. This collateral relief is an extraordinary remedy, reserved for violations of constitutional rights that could not have been raised on direct appeal. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). When considering a § 2255 motion, a court may hold an evidentiary hearing. See 28 U.S.C. § 2255(b). A hearing is not required, however, when “(1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (citation and internal quotation marks omitted). Here, no hearing is required because the stated grounds for relief are facially meritless.

         I. Claims Previously Raised on Appeal

         Several of Hunter's claims were previously raised and rejected on appeal. On appeal, he argued, among other things that: (1) the government failed to prove a single overarching conspiracy; (2) trial counsel was ineffective for failing to suppress defendant's previous incrimination statement to law enforcement, for failing to call certain witnesses, [1] and for failing to impeach a witness concerning the witness's schzio-affective disorder; and (3) the district court erred by admitting a summary of IRS records and in its sentencing guidelines calculations by determining loss amount, role in the offense, and relevant conduct when the jury did not make factual findings as these areas. The Eighth Circuit rejected these arguments. See United States v. Hunter, 862 F.3d 725 (8th Cir. 2017); Appellant's Br. at 15, 19, 23, 31. Hunter again raises these claims in his § 2255 motion, but claims “which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.” Dall v. United States, 957 F.2d 571, 572-73 (8th Cir. 1992) (quoting United States v. Shabazz, 657 F.2d 189, 190 (8th Cir. 1981)(per curiam)). As a result, the court cannot grant relief on these grounds.

         II. Ineffective Assistance of Counsel

         To establish a claim of ineffective assistance of counsel, Hunter must meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, Hunter must show that his counsel's performance was so deficient that it fell below the level of representation guaranteed by the Sixth Amendment. Id. at 687. Second, he must establish prejudice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. at 694.

         A. Failure to Investigate IP Addresses

         During the trial, the government introduced evidence establishing the IP addresses that were used to file several of the fraudulent tax returns. Hunter argues that his counsel was ineffective for failing to investigate the IP address records. The court previously rejected this argument in denying Hunter's motion for a new trial because the internet service provider records no longer existed and “trial counsel cannot be faulted for failing to obtain documents that apparently do not exist.” ECF No. 89 at 7. The denial of a ...


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