Hazelrigg v. United States

• Decision Date: 26 September 2015
• Docket Number: CIV. 12-5034-JLV
• Parties: KENT HAZELRIGG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of South Dakota

KENT HAZELRIGG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CIV. 12-5034-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

September 26, 2015

ORDER

INTRODUCTION

Petitioner Kent Hazelrigg is in the custody of the Federal Bureau of Prisons and is currently residing at the Community Alternatives of the Black Hills in Rapid City, South Dakota. Mr. Hazelrigg filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Docket 1). The government moved to dismiss the petition. (Docket 35). Mr. Hazelrigg opposed the motion. (Docket 51). Pursuant to a standing order of March 18, 2010, the matter was referred to United States Magistrate Judge John E. Simko in accord with 28 U.S.C. § 636(b)(1)(B). Judge Simko issued a report recommending the court grant the government's motion to dismiss and that Mr. Hazelrigg's petition be denied with prejudice, without a hearing, and that no certificate of appealability be issued. (Docket 60). The court granted Mr. Hazelrigg multiple extensions to file objections to the report and recommendation. (Dockets 62, 64, 69, 74 & 77).¹On February 3, 2015, Mr. Hazelrigg filed his objections. (Docket 78). The government did not file any objections. For the reasons stated below, Mr. Hazelrigg's objections are overruled and the report and recommendation is adopted.

DISCUSSION

The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

Mr. Hazelrigg objects to the report and recommendation. The objections are best organized under the following titles:

1. Procedural default;

2. Trial strategy;

3. Failure to edit the audio tape;

4. Inability to confront accusers;

5. Prosecutorial misconduct and misstatement of evidence;

6. Inaccurate information at sentencing;

7. Use of perjured testimony and improper cross-examination; and

8. Miscellaneous objections

(Docket 78). Each category of petitioner's objections is separately addressed.

1. Procedural Default

Without duplicating the magistrate judge's analysis regarding the "cause and prejudice" exception to a procedurally defaulted claim (Docket 60 at pp. 4, 13-16), the court notes a defendant can raise a procedurally defaulted claim in a habeas petition "only if [he] can first demonstrate either 'cause' and actual 'prejudice' . . . or that he is 'actually innocent.' " Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). Mr. Hazelrigg, without referencing a specific claim, asserts "[i]neffective assistance of counsel is sufficient to establish the cause and prejudice necessary to overcome a procedural default." (Docket 78 at p. 3). The court agrees with this general proposition.

If a procedural default is the result of ineffective assistance of trial or direct appeal counsel, in a matter external to the defense and imputed to the state, the Sixth Amendment requires that the default be excused. . . . In such an instance, constitutionally deficient performance of appellate counsel is 'cause' to forgive a procedural default.

Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986), superseded by statute on other grounds (Antiterrorism and Effective Death Penalty Act of 1996)).

However, the Supreme Court also determined "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray, 477 U.S. at 486. The Court went on to articulate:

So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established inStrickland v. Washington,] 466 U.S. 668 (1984)] . . . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that some interference by officials made compliance impracticable would constitute cause under this standard.

Murray, 477 U.S. at 488 (internal quotation marks and citations omitted) (emphasis added).

Mr. Hazelrigg did not bring an ineffective assistance of counsel claim against his appellate counsel only his trial counsel, Terry Pechota. (Docket 78 at p. 3). The court finds Mr. Pechota's representation not to be constitutionally ineffective. See infra. Mr. Hazelrigg failed to show an objective factor external to his defense prevented him from raising the applicable issues on appeal. In short, the court concurs with the magistrate judge's analysis on issues related to Mr. Hazelrigg's procedurally defaulted claims. Mr. Hazelrigg's objections to the report and recommendation are overruled.

2. Trial Strategy

Mr. Hazelrigg makes several assertions claiming that Mr. Pechota provided him with ineffective assistance of counsel. Mr. Hazelrigg asserts all the elements of the offense for which he was convicted, conspiracy to distribute methamphetamine (CR. 08-50062-04-KES, Docket 437), were established onlyby Alysia Herrick's perjured testimony and Mr. Pechota failed to defend him from her lies. (Docket 78 at pp. 3-4). Mr. Hazelrigg claims he was held responsible for the actions of Ms. Herrick and Dean Korth and evidence tarnishing his reputation was improperly admitted under Fed. R. Evid. 403 and 404. Id. at 4. Mr. Hazelrigg argues Mr. Pechota failed to present a transcribed audio statement of David Eric Johnson dated April 11, 2008. Id.

Mr. Hazelrigg's objection that Mr. Pechota's counsel was ineffective because there was insufficient evidence to establish his guilt of conspiracy to distribute methamphetamine is unavailing. The United States Court of Appeals for the Eighth Circuit already determined there was sufficient evidence to prove the elements of the offense beyond a reasonable doubt. United States v. Hazelrigg, 422 F. App'x 556, 559 (8th Cir. 2011). It is well-established that issues raised and rejected on direct appeal may not be re-litigated in a § 2255 petition. See United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000) (per curiam) (citing English v. United States, 998 F.2d 609, 612-13 (8th Cir. 1993), cert. denied, 510 U.S. 1001 (1993)). Mr. Hazelrigg's ineffective assistance of counsel allegations which rely on the assertion there was insufficient evidence to support Mr. Hazelrigg's conviction fail.

Mr. Hazelrigg's objection to the magistrate judge's conclusion Mr. Pechota could not be faulted for his decision not to call Shaun Huckaby, Justin Bickle, Curt Romanyshyn or Mr. Korth as trial witnesses also misses the mark. An attorney's "tactical decision[s] enjoy[] a strong presumption of reasonableness."Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006). "[S]trategic decisions [are] virtually unchallengeable unless they are based on deficient investigation . . . ." Id. The Eighth Circuit has consistently held that "a defense counsel's decision not to call a witness is a 'virtually unchallengeable decision of trial strategy.' " United States v. Orr, 636 F.3d 944, 955 (8th Cir. 2011) (internal quotation marks and further citations omitted) (quoting United States v. Watkins, 486 F.3d 458, 465) (8th Cir. 2007), cert. granted, judgment vacated, 552 U.S. 1091 (2008) and opinion reinstated in part, 276 F. App'x 523 (8th Cir. 2008).

Mr. Hazelrigg's concern he may be held responsible for the actions of Huckaby, Bickle, Romanyshyn or Korth lends credence to Mr. Pechota's decision not to call them as witnesses at trial. The jury convicted Mr. Hazelrigg for his own actions—not the actions of others. The magistrate judge's reference to the circumstances surrounding these persons in his report and recommendation was merely to demonstrate Mr. Pechota's likely rationale in not calling them as witnesses at trial. Contrary to Mr. Hazelrigg's assertions, there is evidence he knew Mr. Korth to be a user of methamphetamine from the prosecutor's cross-examination:

Q. You know both of them [Mr. Korth and Mr. Romanyshyn] to be methamphetamine users, don't you? You can say it. Don't look at Mr. Pechota; just answer the question.

A. I am sure they do. I don't use with them.

Q. How do you know that?

A. Huh?

Q. How do you know?

A. I have been at parties up at the rally with them.

Q. So you know that they use methamphetamine?

A. Yes.

(TT Vol. II at p. 451).²

The court, without replicating Judge Simko's analysis, finds Mr. Pechota's decision not to call Shaun Huckaby, Justin Bickle, Curt Romanyshyn, David Eric Johnson and Dean Korth to fall within the wide range of acceptable professional assistance. See United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (quoting Strickland, 466 U.S. at 689) (internal quotation marks omitted). Mr. Hazelrigg's objection is overruled.

Mr. Hazelrigg clarified his criticism of Mr. Pechota's failure to offer an affidavit of an unidentified coconspirator. Mr. Hazelrigg asserts he meant to reference portions of an April 11, 2008, transcribed interview between David Eric Johnson and law enforcement officers. See Dockets 78 at p. 4; 79-3. The statements contained in the transcript of Mr. Johnson's interview with law enforcement officers constitute inadmissible hearsay, i.e., an out-of-court statement offered for the truth of the matter asserted. The transcript was not admissible under Fed. R. Evid. 801(c) and 802. See Cabaniss ex rel. Estate of...