Hodges v. United States
| Decision Date | 25 October 2019 |
| Docket Number | CIVIL ACTION NO.: 5:17-cv-29,Case No.: 5:13-cr-15 |
| Parties | CORTEZ T. HODGES, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
Movant Cortez Hodges ("Hodges"), who is currently incarcerated at the Federal Correctional Institution in Ashland, Kentucky, filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct his Sentence. Doc. 1. Respondent filed a Response, doc. 3, to which Hodges filed a Reply, doc. 6. For the reasons which follow, I RECOMMEND the Court DENY Hodges's Motion.
Hodges was indicted in this District on charges of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). United States v. Hodges, 5:13-cr-15 ("Crim. Case"), Doc. 1. Hodges' trial counsel, Jared Roberts, filed several pretrial motions, including a motion to suppress evidence seized from Hodges's residence and evidence obtained from a search of a computer and a motion in limine to prohibit evidence of prior crimes, wrongs, or other acts. Crim. Case, Docs. 16-24. The United States Magistrate Judge conducted a hearing on Hodges's motion to suppress and recommended the motion be denied. Crim. Case, Doc. 39. The Court adopted this recommendation as the opinion of the Court over Hodges's objections. Crim. Case, Doc. 60. The Court also denied Hodges's motion in limine. Crim. Case, Doc. 44. After proceeding to a jury trial, Hodges was convicted of the first three counts of the indictment and acquitted on the obliterated serial number count. Crim. Case, Doc. 82. Mr. Roberts filed a renewed motion for judgment of acquittal and a motion for new trial on Hodges's behalf. Crim. Case, Docs. 90, 91. After a hearing, the Honorable Lisa Godbey Wood denied these motions. Crim. Case, Doc. 112. Judge Wood sentenced Hodges to a total term of 123 months' imprisonment, which was comprised of a term of 60 months as to count 1 (possession with intent to distribute marijuana), a concurrent 63-month term as to count 2 (possession of a firearm by a convicted felon), and a consecutive 60 months' imprisonment as to count 3 (possession of a firearm in furtherance of a drug trafficking offense). Crim. Case, Doc. 119. Hodges filed a notice of appeal. Crim. Case, Doc. 121. Hodges also filed a pro se motion to reduce his sentence, which this Court denied. Crim. Case, Docs. 142, 143.
The Eleventh Circuit Court of Appeals affirmed Hodges's convictions, finding this Court did not err in denying his motion to suppress and motion for acquittal and did not abuse its discretion by admitting evidence of Hodges's prior convictions of marijuana with intent to distribute and possession of a firearm during the commission of a felony. United States v. Hodges, 616 F. App'x 961 (11th Cir. 2015). The Eleventh Circuit also determined this Court did not abuse its discretion in not bifurcating Hodges's trial, in refusing to admit evidence of prior convictions of two convicted felons who had access to Hodges's house, or admitting videos found on a computer and photographs produced from those videos. Id. The Eleventh Circuitfound that, although the Government arguably made an improper remark during closing arguments, such error did not affect Hodges's substantial rights. Id. Hodges filed a petition for writ of certiorari, and the United States Supreme Court denied his petition. Doc. 1 at 2.
In his timely filed § 2255 Motion, Hodges makes several allegations of ineffective assistance of counsel. Hodges contends his trial counsel did not have proper exculpatory witnesses to testify at trial, and he did not challenge the indictment as multiplicitous. Id. at 4. Hodges also contends his trial counsel did not challenge "the scope of the warr[a]nt under the fruit of the pois[o]nous tree" or the illegal search and seizure. Id. Hodges asserts his counsel did not challenge his sentence under Amendment 599 of the Sentencing Guidelines. Id. In addition, Hodges contends his sentence was imposed in violation of Amendment 599 and double jeopardy principles. Id. at 5. Moreover, Hodges maintains his sentence violates the holdings in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). Id. at 6. The Government responds that Hodges's Motion should be denied.
The Court addresses the parties' contentions in turn.
Criminal defendants have a right to effective assistance of counsel at all critical stages of the proceedings. Strickland v. Washington, 466 U.S. 668 (1984). This right extends to the right to proceed to trial, see Carver v. United States, 722 F. App'x 906 (11th Cir. 2018), and during sentencing proceedings, Glover v. United States, 531 U.S. 198, 202 (2001).
To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate (1) his counsel's performance was deficient, i.e., the performance fell below an objective standard of reasonableness, and (2) he suffered prejudice as a result of that deficientperformance. Id. at 685-86. The deficient performance requirement concerns "whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985). There is a strong presumption that counsel's conduct fell within the range of reasonable professional assistance. Davis v. United States, 404 F. App'x 336, 337 (11th Cir. 2010) (citing Strickland, 466 U.S. at 686). "It is petitioner's burden to 'establish that counsel preformed outside the wide range of reasonable professional assistance' by making 'errors so serious that [counsel] failed to function as the kind of counsel guaranteed by the Sixth Amendment.'" LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir. 2014) (quoting Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (alteration in original)). "Showing prejudice requires petitioner to establish a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (internal citation omitted). "The prejudice prong requires a petitioner to demonstrate that seriously deficient performance of his attorney prejudiced the defense." Id. at 1312-13. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011). "In evaluating performance, 'counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" LeCroy, 739 F.3d at 1312 (quoting Strickland, 466 U.S. at 690). "If a petitioner cannot satisfy one prong, [a court] need not review the other prong." Duhart v. United States, 556 F. App'x 897, 898 (11th Cir. 2014). "The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that []he was prejudiced by that performance." Demar v. United States, 228 F. App'x 940, 950 (11th Cir. 2007).
"[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. "The cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." James v. Sec'y, Dep't of Corr., No. 8:12-CV-1363, 2013 WL 5596800, at *3 (M.D. Fla. Oct. 11, 2013) (citing Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995)); Body v. United States, Crim. Action No. 10-0232, 2013 WL 2470660, at *20 (S.D. Ala. June 6, 2013) (citing Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001)).
Petitioner argues Mr. Roberts failed to interview or call "crucial defense witnesses" during the trial of his case. Doc. 1-2 at 8. According to Hodges, he had three witnesses (Jacqueline Riley, Ronnie Moore, and Jermarol Mizell) who were willing to testify on his behalf, and these witnesses would have "proved" the black bookbag and its contents were not recovered from the property which was the subject of the search warrant. Id. at 8-9. Hodges maintains Mr. Roberts's failure to secure the testimony of these three "very essential defense witnesses" and the owner of the property where he contends the evidence was recovered led to the Court approving the Government's Rule 404(b) evidence. Id. at 9.
In response, the Government states Hodges's attorney was not ineffective for failing to use these three witnesses in support of any suppression motion or during the trial of this case. Doc. 3 at 3. The Government asserts that had the bookbag been located on a lot adjacent to Hodges's lot, as he now contends, Hodges would not be able to challenge the bookbag's seizure or search. In addition, the Government maintains that, despite these witnesses' putative testimony, officers found Mason jars and baggies with marijuana residue in Hodges's bedroomthat matched the Mason jars of marijuana found in the bookbag, as well as ammunition that matched the calibers of three of the four firearms found in the bookbag, connecting Hodges to the bookbag and its contents. Id. at 3-4, n.2. Thus, the Government contends Mr. Roberts was not ineffective for failing to call these three witnesses.
"[C]omplaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have...
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