United States District Court, D. Minnesota
H. Thompson, United States Attorney counsel for plaintiff.
Hunter, Sr., defendant pro se.
S. Doty, Judge
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.
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.
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.
Claims Previously Raised on Appeal
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,
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.
Ineffective Assistance of Counsel
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
Failure to Investigate IP Addresses
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 ...