Hogan v. United States

• Decision Date: 04 October 2021
• Docket Number: 3:19-cv-767-TJC-JRK,3:16-cr-139-TJC-JRK
• Parties: RAIMUNDO ANTONIO HOGAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Florida

RAIMUNDO ANTONIO HOGAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 3:19-cv-767-TJC-JRK, 3:16-cr-139-TJC-JRK

United States District Court, M.D. Florida, Jacksonville Division

October 4, 2021

ORDER

TIMOTHY J. CORRIGAN, United States District Judge.

This case is before the Court on Petitioner Raimundo Antonio Hogan's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 10 Amended § 2255 Motion).^[1] A jury convicted Petitioner of possession of a firearm by a convicted felon, and the Court sentenced him to a term of 180 months in prison under the Armed Career Criminal Act (ACCA). Petitioner challenges his conviction and sentence based on the alleged ineffectiveness of trial counsel and Rehaif v. United States, 139 S.Ct. 2191 (2019). The United States has responded in opposition. (Civ. Doc. 12, Response to Amended § 2255 Motion). Petitioner filed a reply. (Civ. Doc. 13, Reply in Support of Amended § 2255 Motion).

Petitioner also submitted several other filings, including: (1) a request for leave to add a claim that 18 U.S.C. § 922(g)(1) is unconstitutionally vague as applied to him (Civ Doc. 17), to which the United States responded (Civ. Doc 19)^[2]; (2) a motion to expand the record to include two letters Petitioner wrote the Court during the criminal proceedings (Civ. Doc. 38, Motion to Expand Record; see also Crim. Doc. 27-1, First Letter; Crim. Doc. 54-1, Second Letter), which the Court granted (Civ. Doc. 39); (3) supplemental authority for the ineffective assistance claims (Civ. Doc. 41); and (4) a motion for leave to add a claim of “actual innocence” (Civ. Doc. 42), which the United States opposes (Civ. Doc. 44), and which Petitioner filed a reply supporting (Civ. Doc. 45).

Under § 2255 Rule 8(a), the Court has determined that an evidentiary hearing is not necessary to decide the matter. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming that the facts he alleges are true, he still would not be entitled to any relief). For the reasons below, Petitioner's Amended § 2255 Motion is due to be denied.

I. Background

On September 21, 2016, a federal grand jury charged Petitioner with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(e). (Crim. Doc. 1, Indictment). The facts are summarized in the Eleventh Circuit's opinion affirming his conviction and sentence:

On February 26, 2016, while patrolling in Jacksonville, Officer James Mills spotted a driver without a seatbelt passing by in a Ford Explorer. Officer Mills radioed Officer John Faulkner and the two of them began to follow the car. The driver accelerated; Officer Mills turned on his lights and siren and gave pursuit while Officer Faulkner took a different road to try to get ahead of and cut off the Explorer. The Explorer slowed down and the passenger-Raimundo Hogan-jumped out of the car with a gun in his hand. Hogan threw the gun and ran, and Officer Mills chased him. The driver, Hogan's cousin Maurice, stayed in the car.

Darien Thomas, a civilian observer riding along with Officer Mills, saw Hogan throw the gun and could see it lying on the ground. The gun remained there until Officer Mills returned from chasing Hogan (unsuccessfully), arrested Maurice, and then picked up the gun and placed it on top of his squad car. Officer Faulkner intercepted Hogan and arrested him. When Officer Faulkner arrived at the scene, he put the gun and other evidence into paper bags and placed the bags in the trunk of his squad car. There is some discrepancy over how Officer Faulkner got the gun: Officer Mills testified that he handed the gun directly to Officer Faulkner, while Officer Faulkner said that he took the gun from Officer Mills's squad car. But in any event, Officer Faulkner brought the gun to the property room back at the sheriff's office and filled out a property-storage card. He recorded the serial number as “KTV892.” In a report that Officer Mills prepared regarding the traffic stop, he recorded the serial number as “KYU892.”

Special Agent Mark Latham from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) tested the gun to determine whether it met the statutory definition of a firearm. He concluded that the gun had traveled in interstate commerce (one telling clue: it bore a “made in Austria” imprint) and that “if there was a projectile in the end of the casing it would have expelled it by the action of the explosive.” Special Agent Latham's report listed the serial number as “KTV892, ” but it listed the gun as being related to the investigation of another individual, “Jerminh Mose Johnson, ” rather than Hogan.

An indictment charged that Hogan “did knowingly possess, in and affecting commerce, a firearm, that is, A Glock, .40 caliber pistol, serial number KTV892, after having been convicted of a crime punishable by imprisonment for a term exceeding one year.” See also 18 U.S.C. § 922(g)(1). Hogan pleaded not guilty and went to trial. His first trial ended in a mistrial. His second trial ended in his conviction.

United States v. Hogan, 778 Fed.Appx. 642, 643-44 (11th Cir. 2019).

During the second trial, Petitioner moved for judgment of acquittal (JOA), arguing that the evidence was insufficient to prove that he possessed the firearm charged in the Indictment. (Crim. Doc. 83, Trial Transcript Vol. I at 219-21). Petitioner's counsel, Susan Yazgi, argued that the serial number of the gun charged in the Indictment (KTV892) differed from the serial number Officer Mills wrote down in his police report (KYU892), suggesting that the gun charged in the Indictment was the wrong one. (Id. at 219-20). The United States responded that the discrepancy was a typo according to Officer Mills, and that Officer Faulkner recorded serial number KTV892 when taking the gun into evidence. (Id. at 221-22). The United States argued that the discrepancy went to the weight of the evidence, not whether it had established a prima facie case. (Id. at 222). The Court ruled that the evidence was sufficient to present the case to the jury and denied Petitioner's motion for a JOA. (Id.). During closing arguments, Petitioner raised the serial number discrepancy; argued that the gun belonged to the driver, Maurice Hogan; questioned the witnesses' reliability, particularly that of Officer Mills; and questioned the lack of forensic or video evidence. (Crim. Doc. 84, Trial Transcript Vol. II at 16-35). The jury ultimately returned a guilty verdict. (Crim. Doc. 47, Jury Verdict).

After trial, Petitioner wrote a letter to the Court accusing Ms. Yazgi of lying to him about his case and withholding information from him. (Crim. Doc. 54-1, Second Letter).^[3] Petitioner was apparently concerned about the serial number in Officer Mills's police report, which according to Petitioner “prove[d] that the firearm in [the] Federal Indictment IS NOT the firearm in [the] JSO [Jacksonville Sheriff's Office] … aresst [sic] & booking report.” (Id.) (emphasis in original).

The Court held a hearing on March 14, 2017, to address the letter. (Crim. Doc. 54, Minute Entry; Crim. Doc. 87, Mar. 14, 2017 Hearing Transcript). Ms. Yazgi denied lying to Petitioner and denied withholding information from him. (Crim. Doc. 87 at 7-8). She stated that she had given Petitioner everything he requested, that she put on the defense Petitioner wanted to present, and noted that the argument about the firearm's serial number was litigated at trial. (Id. at 8). Still, Ms. Yazgi acknowledged that Petitioner no longer trusted her and recommended he be given a new attorney. (Id.). The Magistrate Judge expressed doubt that Ms. Yazgi, whose “reputation is stellar, ” would withhold information from her client, and he found no fault with Ms. Yazgi's handling of the case. (Id. at 8-9, 11). Even so, the Magistrate Judge agreed with Ms. Yazgi that the Court should appoint new counsel for Petitioner because the attorney-client relationship had broken down. (Id. at 10-12). The Court allowed Ms. Yazgi to withdraw from the case and appointed A. Russell Smith to represent Petitioner at sentencing. (Crim. Doc. 55).

The parties convened for the sentencing hearing on September 6 2017. The Court noted that it had received another letter from Petitioner in July in which he complained about certain aspects of his case. (Crim. Doc. 85, Sentencing Transcript Vol. I at 3).^[4] Mr. Smith explained that he had discussed the matter with Petitioner, and that Petitioner was concerned he had not received a physical copy of an ATF^[5] report about the firearm, which contained the name “Jerminh Mose Johnson” in the title of investigation. (See id. at 4-5); (see also Civ. Doc. 1-1, Pet. Ex. A). Petitioner complained that discrepancies over the firearm's serial number and the name in the ATF report were not brought up at trial, which he believed deprived him of due process. (Crim. Doc. 85 at 6-7). The prosecutor explained that the serial number discrepancy had been litigated at trial and that the name in the interstate nexus report was a typographical error. (Id. at 8-10). Mr. Smith and the prosecutor also noted that the ATF report had been disclosed to the defense before trial and was not newly discovered evidence. (Id. at 4-5, 8-9). However, because Petitioner was facing a 15-year mandatory minimum sentence, the Court agreed to review whether the trial evidence was sufficient to sustain the conviction given the issues Petitioner raised. (Id. at 11-12, 14-15). The Court also agreed to consider then-recent case law about the ACCA enhancement and concluded the...