Hunter v. United States of America

Filing 8

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/5/2016. (PSM)

FILED
2016 Jan-05 AM 09:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JUWANE HUNTER,
Plaintiff,
vs.
UNITED STATES OF
AMERICA,
Defendant.

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7:15-cv-08032-LSC
(7:12-cr-00495-LSC-JEO-2)

Memorandum of Opinion
I.

Introduction
This is a motion to vacate, set aside, or correct a sentence pursuant to 28

U.S.C. § 2255, filed by petitioner Juwane Hunter (“Hunter”). (Doc. 1.) Hunter
pled guilty in this Court to four counts of Hobbs Act robbery, in violation of 18
U.S.C. § 1951, and one count of brandishing a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A). He was sentenced to a term of imprisonment
for 300 months and now challenges his sentence. For the reasons set forth below,
this motion is due to be dismissed.
II.

Background
In November of 2012, Hunter was charged by a federal grand jury with four

counts of Hobbs Act robbery—Counts 1, 2, 4, and 6—in violation of 18 U.S.C. §
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1951, and three counts of brandishing a firearm—Counts 3, 5, and 7—in violation of
18 U.S.C. § 924(c)(1)(A)(ii), during and in relation to the robberies underlying
Counts 2, 4, and 6. In the months leading up to trial, Hunter’s attorney, David
Luker,

filed

a

motion

to

have

Hunter

undergo

psychological

and

neuropsychological evaluations to determine Hunter’s competency. This motion
was granted, and Hunter was examined by forensic psychologist Dr. Kimberly
Ackerson and by clinical neuropsychologist Dr. H. Randall Griffith.
From his evaluation, Dr. Griffith determined that there was “no compelling
evidence” to suggest that Hunter was suffering a mental disease or defect at the
time he committed the robberies. (Cr. Doc. 37 at Page 8.)1 Further, Dr. Ackerson’s
forensic evaluation led her to find that Hunter “was not suffering from a serious
mental illness” at the time of the robberies and that “he possessed sufficient
cognitive capacity to both understand and appreciate . . . that his actions were
wrong.” (Cr. Doc. 40 at Page 9.) Both evaluations also indicated that Hunter failed
to invest genuine effort during his testing, and Dr. Ackerson noted that Hunter’s
“responses on personality assessment revealed not only symptom exaggeration but
a deliberate attempt to present in an unfavorable light.” (Cr. Doc. 40 at Page 8; Cr.
Doc. 37 at Page 8.)
1

“Cr. Doc.” Refers to an entry on the docket sheet in the underlying criminal case, No. 7:12-cr00495-LSC-JEO-2.
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Hunter entered into a binding plea agreement in which he pled guilty to four
counts of Hobbs Act robbery (Counts 1, 2, 4, and 6) and one count of brandishing a
firearm (Count 5). The government agreed to dismiss the other two counts of
brandishing a firearm. At his plea hearing, Hunter stated that he had no complaints
about Attorney Luker’s representation and that Attorney Luker had done “a good
job.” (Cr. Doc. 93 at Page 7.) Hunter further agreed that Attorney Luker had spent
what Hunter thought was a “sufficient amount of time” meeting with and talking
to him. (Cr. Doc. At Page 7.) The Court accepted Hunter’s guilty plea. Before
sentencing, Hunter filed a pro se motion to withdraw his guilty plea, contending
that his attorney did not communicate with him, visit him, or review defenses with
him. The Court denied Hunter’s motion to withdraw his plea and sentenced him to
a term of 300 months imprisonment as stipulated in the binding plea agreement.
Hunter then appealed the Court’s denial of his motion to withdraw his guilty plea,
which the Eleventh Circuit affirmed on November 19, 2014. On October 15, 2015,
Hunter filed the instant motion.
III. Discussion
A. Timeliness and Non-Successive Nature of Hunter’s § 2255 Motion
Because Hunter filed his § 2255 motion within one year of the date that the
judgment of his conviction became final, his motion is timely. See 28 U.S.C. §
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2255(f)(1). Furthermore, nothing in the record indicates that Hunter has previously
filed a § 2255 motion. Thus, the current motion is not “successive” within the
meaning of § 2255(h).
B. Effect of Hunter’s Plea Agreement
Hunter waived certain rights when he entered into his guilty plea, but he did
not waive the right to raise a claim of ineffective assistance of counsel. (Cr. Doc. 70
at Page 10.) Hunter essentially asserts five grounds for relief based on ineffective
assistance of counsel:2
1.
2.
3.
4.
5.

Counsel failed to request a downward departure for diminished
capacity;
Counsel “catastrophically failed to prepare a trial defense;”
Counsel failed to file a motion to suppress evidence obtained in
violation of 21 U.S.C. § 861(a)(2);
Counsel failed to object to the use of Hunter’s juvenile convictions in
calculating his criminal history under the sentencing guidelines; and
Counsel failed to object to the application of a firearm enhancement to
three of the four robbery counts in violation of the sentencing
guidelines.

Claims of ineffective assistance of counsel may be raised for the first time in
a § 2255 motion and are therefore not subject to a procedural bar if the petitioner
did not raise the issue on direct appeal. Massaro v. United States, 538 U.S. 500, 504
(2003). In order for a convicted defendant’s claim of ineffective assistance of
Hunter asserted the first two grounds in his original petition, while the third, fourth, and fifth
grounds were raised in a “supplemental and addendum” petition. Hunter also asserted what he
listed as a sixth ground for ineffective assistance of counsel, however his sixth ground offered
nothing more than a summary of the five other grounds. (Doc. 6 at Page 9.)
2

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counsel to warrant post-conviction relief, two components must be present—
deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). To demonstrate deficient performance, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness. Id. at
688. To demonstrate prejudice, the defendant must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different. Id. at 694. The court need not “address both
components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697.
In determining whether an attorney’s performance fell below the objective
standard of reasonableness, the court is highly deferential to counsel’s decisions
and must keep in mind that “a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged performance, and to
evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689. The court must also indulge a strong presumption that counsel’s
performance falls within the “wide range of reasonable professional assistance.” Id.
When seeking to overcome this presumption, a movant cannot rely on bare
accusations and complaints but instead “must identify the acts or omissions of
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counsel that are alleged not to have been the result of reasonable professional
judgment.” Id. at 690.
C. Hunter’s Claim of Ineffective Assistance of Counsel Regarding
Attorney Luker’s Failure to Seek a Downward Departure
Hunter first asserts that Attorney Luker acted unreasonably by failing to
request a downward departure for diminished capacity. Section 5K2.13 of the
Federal Sentencing Guidelines governs downward departures for defendants
suffering from diminished capacity:
“A downward departure may be warranted if (1) the defendant
committed the offense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced mental capacity
contributed substantially to the commission of the offense. Similarly, if
a departure is warranted under this policy statement, the extent of the
departure should reflect the extent to which the reduced mental
capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline
range if (1) the significantly reduced mental capacity was caused by the
voluntary use of drugs or other intoxicants; (2) the facts and
circumstances of the defendant’s offense indicate a need to protect
the public because the offense involved actual violence or a serious
threat of violence; (3) the defendant’s criminal history indicates a
need to incarcerate the defendant to protect the public; or (4) the
defendant has been convicted of an offense under chapter 71, 109A,
110, or 117, of title 18, United States Code.”
U.S. Sentencing Guidelines Manual § 5K2.13. Here, Hunter has failed to show that
he was eligible for a downward departure or that Attorney Luker was deficient in
failing to request it.
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Although Hunter contends that he was “incapable of making a
knowledgeable decision” because of “brain damage, PTSD, and mild mental
retardation” (Doc. 1 at Page 4), his allegations are contradicted by the record. Dr.
Griffith and Dr. Ackerson concluded from their evaluations that Hunter was
competent at the time of the offenses and that he knew what he was doing was
wrong. (Cr. Doc. 37 at Page 8; Cr. Doc. 40 at Page 9.) Hunter requests an
evidentiary hearing to “explore [his] diminished capacity.” (Doc. 1 at Page 13.)
However, such a hearing is not warranted on this issue. See Holmes v. United States,
876 F.2d 1545, 1553 (11th Cir. 1989) (a district court is not required to hold an
evidentiary hearing on a petitioner’s § 2255 claims when the petitioner’s
allegations are affirmatively contradicted by the record).
Further, even if Hunter’s mental evaluations had indicated that Hunter
suffered from a significantly reduced mental capacity at the time of the offenses,
Attorney Luker did not act unreasonably in failing to seek a downward departure
because the charged offenses involved a serious threat of violence. See, e.g., United
States v. Braxton, 19 F.3d 1385, 1386 (11th Cir. 1994) (holding that Section 5K2.13
was inapplicable to a defendant convicted of armed robbery because “armed
robbery is not a ‘non-violent offense’”). Thus, Attorney Luker was not deficient in
failing to request a downward departure.
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D. Hunter’s Claim of Ineffective Assistance of Counsel Regarding
Attorney Luker’s Failure to Prepare a Trial Defense
Hunter’s second ineffective assistance of counsel claim is simply that
“[c]ounsel catastrophically failed to prepare a trial defense.” (Doc. 1 at Page 5.)
Hunter offers no specific facts to support his claim. Further, the record contradicts
his claim that Attorney Luker had not worked to prepare a trial defense. Attorney
Luker filed motions for disclosure of certain pre-trial evidence (Cr. Doc. 43, 44), as
well as a motion in limine. (Cr. Doc. 65.) And, at his plea hearing, Hunter indicated
that he was pleased with Attorney Luker’s representation and that Attorney Luker
had spent sufficient time working with him on his case. Assuming arguendo that
Attorney Luker’s trial preparation fell below professional standards, Hunter
nevertheless fails to establish that there is a reasonable probability that the
performance of his counsel affected the outcome of his case, because Hunter pled
guilty and no trial defense was required.
E. Hunter’s Claim of Ineffective Assistance of Counsel Regarding
Counsels’ Failure to Have the Indictment Dismissed Under 21
U.S.C. § 861(a)(2)
In his third ineffective assistance of counsel claim, Hunter contends that
both his trial and his appellate counsel failed to file motions to suppress evidence
obtained in violation of 21 U.S.C. § 861(a)(2). Hunter supports this claim by
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contending that he was unlawfully implicated in the robberies by an individual
under the age of eighteen who was interrogated by an investigator from the
Tuscaloosa County Sheriff’s Department. (Doc. 6 at Page 5.) Under 21 U.S.C. §
861(a),
“It shall be unlawful for any person at least eighteen years of age to
knowingly and intentionally-- . . . (2) employ, hire, use, persuade,
induce, entice, or coerce, a person under eighteen years of age to assist
in avoiding detection or apprehension for any offense of this
subchapter or subchapter II of this chapter by any Federal, State, or
local law enforcement official.”
21 U.S.C. § 861(a). The subchapters to which the statute refers address drug
offenses and offenses for the import and export of controlled substances. This
statute prohibits the use of a minor to assist in avoiding detection or apprehension
for certain drug offenses, and thus does not support Hunter’s argument. Hunter’s
trial and appellate counsel were not ineffective in failing to raise this statute as a
ground to dismiss his indictment or suppress evidence.
F. Hunter’s Claim of Ineffective Assistance of Counsel Regarding the
Failure to Challenge the Computation of His Criminal History
As his fourth ground for ineffective assistance of counsel, Hunter contends
that trial and appellate counsel were deficient in failing to object to the use of
juvenile convictions to compute his criminal history under the sentencing
guidelines. However, the sentencing guidelines specifically allow for the use of
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certain juvenile convictions when computing a defendant’s criminal history. See
U.S.S.G. § 4A1.2(d) (addressing point allocation for offenses committed prior to
age eighteen).
To the extent that Hunter contends that counsel were ineffective in failing to
argue that his criminal history was improperly computed, he is incorrect. Hunter
had two juvenile convictions, one of which included confinement for at least sixty
days, and both of which had sentences imposed within the five years of the Hobbes
Act offenses. The three points added to Hunter’s criminal history computation
from these two convictions were proper under U.S.S.G. § 4A1.2(d)(2). Thus,
Hunter’s counsel were not deficient in failing to object to the criminal history
computation.
G. Hunter’s Claim of Ineffective Assistance of Counsel Regarding the
Failure to Challenge the Presentence Investigation Report’s Offense
Level Computation
Hunter also contends that trial and appellate counsel were ineffective in
failing to challenge the firearm enhancements added to Counts 1, 2, and 6. Hunter
states that weapon enhancements may not be added to an underlying offense if a
sentence is also being imposed under 18 U.S.C. § 924(c), and that counsel were
deficient in not raising this objection.

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However, Hunter was only sentenced for one count of violating 18 U.S.C. §
924(c)—Count 5, which addressed Hunter’s brandishing a firearm during the
Hobbs Act offense charged in Count 4. Hunter is correct that the commentary
published with the Sentencing Guidelines states that “[i]f a sentence under
[U.S.S.G. § 2K2.4] is imposed in conjunction with a sentence for an underlying
offense, do not apply any specific offense characteristic for possession, brandishing,
use, or discharge of an explosive or firearm when determining the sentence for the
underlying offense.” U.S.S.G. comment n.4. However, if a defendant is convicted
of multiple robberies, but is only convicted under 18 U.S.C. § 924(c) in connection
with one of those robberies, weapon enhancements may apply to the other
robberies. See U.S.S.G. comment n.4 (“[I]f a defendant is convicted of two armed
bank robberies, but is convicted under 18 U.S.C. 924(c) in connection with only
one of the robberies, a weapon enhancement would apply to the bank robbery.”).
Here, the firearm enhancements under Counts 1, 2, and 6 were proper, as
those robberies were not the basis for the the 18 U.S.C. 924(c) violation to which
Hunter pled guilty. Thus, the Presentence Investigation Report correctly applied
the weapon enhancements to Counts 1, 2, and 6, and Hunter’s trial and appellate
counsel were not deficient in failing to object to these enhancements.

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IV. Conclusion
For the foregoing reasons, the petitioner’s § 2255 motion is due to be
dismissed. An appropriate order will be entered.
This Court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28. U.S.C.
2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate and deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). This Court finds that Hunter’s claims do not satisfy either standard.
DONE and ORDERED on January 5, 2016.

_____________________________
L. Scott Coogler
United States District Judge
182184

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