Kozohorsky v. USA
MEMORANDUM AND ORDER... the Petition Under 28 U.S.C. § 2255 filed by Kozohorsky is DENIED. The record conclusively refutes Kozohorskys allegations of ineffective assistance of counsel on each point raised by Kozohorsky in his 2255 Motion. Second ly, Kozohorsky cannot demonstrate prejudice by any alleged errors by his counsel, in that there is no reasonable probability that Kozohorsky would have received a sentence lower than the ten years. Kozohorsky received very effective assistance of cou nsel at all stages of the proceedings against him, by a very able, experienced and competent attorney.IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Kozohorsky has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 9/19/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES D. KOZOHORSKY,
UNITED STATES OF AMERICA,
Case No. 1:14CV00046 SNLJ
MEMORANDUM AND ORDER
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct
sentence by James D. Kozohorsky, a person in federal custody. On January 6, 2012,
Kozohorsky was found guilty by a jury of the offense of failure to register as a sex
offender, and on April 23, 2012, this Court sentenced Kozohorsky to the Bureau of
Prisons for a term of 120 months, the statutory maximum sentence. Kozohorsky’s § 2255
action, which is based on several allegations of ineffective assistance of counsel, is fully
briefed and ripe for disposition.
I. BACKGROUND SUMMARY
Movant, James D. Kozohorsky (hereinafter “Kozohorsky”), is a thrice-convicted
sex offender. Between 2003 and early 2009, he updated his sex offender registration
approximately every three months in the states of Arkansas, Wisconsin, and Missouri. He
completed his last sex offender registration form while living outside of prison in
Missouri, in February 2010. Kozohorsky moved from Missouri to Arkansas around
March of 2010. He was arrested in Arkansas in September 2010. At the time of his arrest,
Kozohorsky’s sex offender registration was not current in any state.
Before the federal indictment was sought, Kozohorsky had two state failure to
register cases pending in Butler County, Missouri. He pled guilty to failure to register for
conduct in 2009. The second case was dismissed, which was for conduct in March 2010.
After the federal indictment was filed, Kozohorsky moved to dismiss the indictment
alleging that it violated the Double Jeopardy and Due Process clauses of the Fifth
Amendment. This Court denied the motion.
In January 2012, a jury found James D. Kozohorsky guilty of violating 18 U.S.C.
§ 2250, Failing to Update his Sex Offender Registration in Arkansas.
The Presentence Report (PSR) concluded the advisory Guidelines range was 100125 months imprisonment. However, before the sentencing hearing, the Government
announced that no evidence would be presented regarding a six-level enhancement that
supported the 100-125 months Guidelines range, and as a result, the advisory Guidelines
range was 57-71 months. However, the Government requested an upward variance to the
statutory maximum sentence, 120 months.
Kozohorsky’s objections to the PSR included his opposition to two points being
assessed for obstruction of justice and the inclusion of information from an Offender
Profile Report that concluded Kozohorsky is a sexually violent predator in the PSR.
This Court denied Kozohorsky’s objection regarding the obstruction of justice
enhancement and considered information from the Offender Profile Report in
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determining an appropriate sentence. This Court ordered a sentence of 120 months
imprisonment, followed by lifetime supervised release, and a $100 special assessment.
On March 4, 2013, Kozohorsky’s conviction and sentence were affirmed. United
States v. Kozohorsky, 708 F.3d 1028 (8th Cir. 2013), cert. denied, ___ U.S. ___, 134
S.Ct. 1014 (2014). On May 7, 2013, Kozohorsky’s Petition for Rehearing and Rehearing
En Banc was denied. On January 21, 2014, Kozohorsky’s Petition for Writ of Certiorari
was denied by the United States Supreme Court.
James D. Kozohorsky has been convicted of raping, or attempting to rape three
different women. He has also been convicted of threatening one of his prior rape victims
with death or serious bodily injury.
PRIOR OFFENSES, PRETRIAL AND TRIAL
Kozohorsky’s Rape and Attempted Rape Convictions.
In 1988, Kozohorsky was convicted of rape for unlawfully engaging in sexual
intercourse with an adult female by forcible compulsion on January 15, 1987. A charge of
Aggravated Sexual Assault against a separate victim was dismissed. (PSR ¶31)
Three years later, Kozohorsky was convicted of raping a woman on November 15,
1989. (PSR ¶32) Court records reflect Kozohorsky threatened to kill the victim while he
engaged in forced sexual intercourse with her. Id.
In 1991, Kozohorsky was convicted of Terroristic Threatening, Witness
Intimidation, and Burglary for threatening one of his prior rape victims with death or
serious physical injury around January 26, 1990. (PSR ¶33) Kozohorsky was sentenced
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to a total of sixteen years imprisonment. Id. He was released from prison on December
29, 2003. Id.
On January 2, 2006, Kozohorsky “anally raped [an adult female victim] four times
and then pushed his fist into her vagina using a Bengay-type muscle rub for a lubricant
during the assault.” (PSR ¶34) He was convicted of Attempted Rape for that conduct. Id.
Kozohorsky required to register as a sex offender upon release from prison in
After completing the sentence of imprisonment for his second rape conviction,
Kozohorsky was required to register as a sex offender. The first time he registered was on
December 29, 2003, in Arkansas. (Tr. 70, 265, 317) Between December 2003 and
February 2010, Kozohorsky completed a total of 35 sex offender registration forms in
Arkansas, Wisconsin, and Missouri. (Tr. 222-31)
The last time Kozohorsky signed a sex offender registration form was February 5,
2010. (Tr. 162-64, 222, 330) On that date, Kozohorsky listed his current address as an
apartment on Broadway in Poplar Bluff, Missouri. (Tr. 159) The form stated the next date
to register was May 5, 2010. (Tr. 159, 331)
Kozohorsky charged with Missouri offense of “Failure of a Sex Offender to
Report” in 2009 and 2010.
In October 2009, a state charge was filed against Kozohorsky in Butler County,
Missouri for failing to verify his registration information within 90 days (hereinafter
“2009 Butler County Case”). (PSR ¶37) On March 19, 2010, Lt. Sutton of the Poplar
Bluff Police Department learned that Kozohorsky failed to appear for the trial in the 2009
Butler County Case. (Tr. 192) Lt. Sutton went to Kozohorsky’s last reported address, the
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Broadway apartment, and found that someone else was living there. Id. at 192, 194. Lt.
Sutton then called Kozohorsky. Kozohorsky told Lt. Sutton that he no longer lived there;
adding that he was in Tennessee and headed to Arkansas. Id. at 195-96, 291. Kozohorsky
also told Lt. Sutton that he did not need to register in those states unless he worked at
least five days in a row in one place. Id. at 209.
Based on Kozohorsky’s statements, a second state charge (hereinafter “2010
Butler County Case”) was filed against Kozohorsky, for failing to verify his registration
information. Between February 6 and September 30, 2010, Kozohorsky did not register
his address with any law enforcement agency. (Tr. 222, 230)
Fugitive investigation opened to find Kozohorsky.
Based on Kozohorsky’s failure to appear in court for the 2009 Butler County Case
in March 2010, a state arrest warrant was issued. (Tr. 192) The U.S. Marshal’s office was
contacted for assistance and a fugitive investigation was opened in April, 2010. (Tr. 21719) On September 30, 2010, the U.S. Marshals and local law enforcement arrested
Kozohorsky at 404 Union Street in Marked Tree, Arkansas. (Tr. 219) Kozohorsky’s sex
offender registration was not current in any state at that time. (Tr. 222, 226-28)
When Kozohorsky was found in Arkansas, he was arrested on two outstanding
warrants (Tr. 221) and surrendered to Poinsett County Arkansas, where he spent
approximately two months in jail. (Tr. 221, 250, 298-99). Kozohorsky was then sent to
Butler County for the 2009 Butler County Case. (Tr. 250, 299)
Kozohorsky pled guilty to 2009 Butler County Case.
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In January 2011, Kozohorsky pled guilty to the 2009 Butler County Case (failing
to report within 90 days of March 9, 2009). (PSR ¶37) The Prosecutor agreed to dismiss
the 2010 Butler County charge and a three-year sentence was recommended.
Roughly two weeks later, a Grand Jury returned a federal indictment charging
Kozohorsky with knowingly failing to register as required under the Sex Offender
Registration and Notification Act (SORNA), in violation of 18 U.S.C. § 2250.
District Court denied Kozohorsky’s Motion to Dismiss Indictment.
On July 29, 2011, Kozohorsky filed a Motion to Dismiss based on alleged Double
Jeopardy and Due Process violations. (Doc. 42) This motion was denied.
Superseding Indictment filed.
On January 4, 2012, a Superseding Indictment was returned by a Grand Jury
Beginning at a time unknown. . ., but including between on or about
March 22, 2010, and. . .September 30, 2010, in Butler County, within
. . .the Eastern District of Missouri, and elsewhere, JAMES D.
KOZOHORSKY,. . .traveled in interstate commerce and knowingly
failed to register and update a registration in the State of Arkansas as
required by federal law,. . .
Kozohorsky’s Trial Testimony.
Kozohorsky testified that the year prior to January 2011, he did not live in
Arkansas and was not required to register due to his frequent travel for work. (Tr. 274,
287-89, 291-93, 309-10) However, during Kozohorsky’s state guilty plea to the 2009
Butler County Case in January 2011, the Butler County Judge inquired into where
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Kozohorsky lived. Kozohorsky responded that he lived in Arkansas during the year 2010
and in Butler County from approximately 2008-09.
During direct examination in the federal jury trial, Kozohorsky attempted to
explain why he told the Butler County Judge that he lived in Arkansas. (Tr. 308-310)
That explanation was not credible.
On January 6, 2012, Kozohorsky was found guilty of failing to update his sex
offender registration in the state of Arkansas as required by federal law between on or
about March 22 and September 30, 2010. (PSR ¶1)
THE PRESENTENCE REPORT
The Probation Office prepared three versions of the Presentence Report, the last of
which was called “Final Revised Copy of the Presentence Report” (PSR). (Doc. 109) The
PSR concluded that the base offense level was 16. (PSR ¶15) Six levels were added,
because while “in failure to register status” Kozohorsky “committed a sex offense against
someone other than a minor.” (PSR ¶16) Two more levels were added, because
Kozohorsky obstructed justice “with respect to the. . .prosecution. . .of the instant offense
of conviction and any relevant conduct. . .” (PSR ¶19) The Total Offense Level was 24.
Prior to the Sentencing Hearing, the Government filed a “Notice of Intent to Not
Call Witnesses at Sentencing.” (Doc. 111) The Notice reported that after locating and
interviewing a necessary witness for the sentencing hearing, the Government decided not
to call the witness in support of the six-level “commission of a sex offense while in
failure to register status” enhancement. Id. The Notice explained that the total offense
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level should be 18, with a corresponding Guidelines range of 57-71 months. Id. In
consideration of the relevant factors under 18 U.S.C. § 3553(a) and Kozohorsky’s
“multiple prior convictions for rape and attempted rape, as well as his considerable
criminal history and status as a Sexually Violent Predator,” the Government requested an
upward variance to the statutory maximum, 120 months. Id. at 1-2.
Kozohorsky was assessed a total of seventeen criminal history points, resulting in
a criminal history category VI. (PSR ¶41) In addition to the nine criminal history points
Kozohorsky was assessed for his four rape-related convictions (PSR ¶¶31-34, no points
were assessed for the 1988 rape conviction), he was assessed two points for driving while
intoxicated convictions (PSR ¶¶35-36), and three points for the 2009 Butler County Case.
No criminal history points were assessed for Kozohorsky’s six felony burglary
convictions that occurred between 1980 and 1991. (PSR ¶¶26, 27, 28, 29, 30, and 33)
Kozohorsky’s last two criminal history points were assessed for “committ[ing] the instant
offense while under a criminal justice sentence for Attempted Rape.” (PSR &40)
“The Adjustment for Obstruction of Justice” section of the PSR stated:
[a]ccording to the government, the defendant testified contrary to the
evidence presented at the trial. . .pertaining specifically to. . .the trial
transcript in [the 2009] Butler County [ ] Case. . ., and [Kozohorsky]’s
attempt to lie under oath during cross-examination in the instant
offense regarding his residence.
The lie, according to the government was his testimony that he was not living in
Arkansas during 2010 and that he was simply mistaken when he told the Butler county
judge at the plea hearing that he had indeed lived in Arkansas during 2010.
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Kozohorsky objected to the obstruction of justice enhancement. During the
Sentencing Hearing, defense counsel argued what Kozohorsky “meant when he was
pleading guilty in Missouri” was not “worthy of obstruction, because it wasn’t an
offense, and it wasn’t a material statement.” (Tr. 399)
This Court inquired what the Government’s position was regarding “the issue of
materiality.” (Tr. 399) The Government responded that the testimony was material,
because “Kozohorsky’s defense at trial was. . .that he was not living in Arkansas” in
2010. Id. The Government had to prove that he was living in Arkansas in 2010, which
made that denial material. (Tr. 401) This Court overruled Kozohorsky’s objection to the
obstruction enhancement (Tr. 402) and found:
based on a preponderance of the evidence that [Kozohorsky] knowingly perjured
himself by making false statements that were, in fact, material. Those are the
statements that you-all discussed in your memoranda and in oral argument here
concerning the statements that he made to the judge in Butler County explaining
away his presence or absence in Arkansas and Missouri.
Kozohorsky also objected to paragraph 50 of the PSR regarding the inclusion of
information from an Offender Profile Report, which provided:
According to a Sex Offender Screening and Risk Assessment. . .
“this offender appears to have a deviant sexual preoccupation or
paraphilia (rape) and other personality characteristics (psychopathic,
antisocial, sadistic) predisposing him to repeated, wanton, disregard
of major social norms as well as violent sexual assault of others. His
behavioral pattern is congruent with that of a serial rapist.”. . . there is
documentation that within just a few hours of committing one assault,
he committed a similar assault at another location in the same town.
Further, documentation reflects that several of his reported victims
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were in the late teenage range. . .credible documentation. . .suggested
a history of Kozohorsky committing violent, carefully planned sexual
assaults is much greater than his extensive official record reflects.
Further opining that the offenses included sadistic elements and
similar modus operandi. During the assessment, Kozohorsky denied
raping three victims, while admitting to raping another victim in the
manner described in the official documentation, including threatening
to hit her with his fist and threatening to engage in more intrusive and
demeaning acts if she did not comply. In addition, Kozohorsky
admitted to forcing his wife to have sex with him against her will.
. . .Kozohorsky made the disclosures with no discernable signs of
remorse or empathy for his victims. Kozohorsky indicates the information in this paragraph is “unreliable and untrue.”
(PSR ¶50) This Court considered Kozohorsky’s status in Arkansas as a sexually violent
predator to support an upward variance to 120 months.
This Court made Guidelines calculations; the total offense level was 18 and the
criminal history category, VI, making the advisory Guidelines range 57-71 months. (Tr.
This Court ordered a 120-month sentence. (Tr. 420) Prior to announcing the length
of the sentence this Court explained:
I listened to the whole trial, of course, carefully. There’s no real
question in the Court’s mind that the jury verdict was correct. The
Court’s concerned by the evidence that even defense counsel has
introduced at this sentencing hearing that [Kozohorsky is] a great
risk to society because of [information] from Defendant's Exhibit
A. This offender appears to have a deviant sexual preoccupation
or paraphilia (rape) and other personality characteristics (psychopathic, antisocial, sadistic) predisposing him to repeated, wanton
disregard of major social norms as well as violent sexual assault
of others. His behavior profile is congruent with that of a serial
rapist. . .
Your lawyer is right that this is just a registration violation, but
given your criminal history and every indication about your previous behavior if ever there was a registration violation case that
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deserved an upward variance, this is it.
Let me mention too that your criminal history is simply extensive.
It includes. . .two convictions for rape, an attempted rape, a burglary, a terroristic threatening and intimidating a witness, and so forth.
On May 2, 2012, Kozohorsky timely filed his Notice of Appeal to the Eighth
Circuit Court of Appeals. On March 4, 2013, Kozohorsky’s conviction and sentence were
affirmed. United States v. Kozohorsky, 708 F.3d 1028 (8th Cir. 2013), cert. denied, ___
U.S. ___, 134 S.Ct. 1014 (2014). On May 7, 2013, Kozohorsky’s Petition for Rehearing
and Rehearing En Banc was denied. On January 21, 2014, Kozohorsky’s Petition for Writ
of Certiorari was denied by the United States Supreme Court.
MOTION FOR POST-CONVICTION RELIEF PURSUANT TO 28 U.S.C.
On April 9, 2014, Kozohorsky timely filed a Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside or Correct Sentence. In his Motion, Kozohorsky claims four separate
allegations of errors by his trial counsel, which deprived Kozohorsky of his right to
effective assistance of counsel.
For his first allegation, Kozohorsky alleges that his counsel was ineffective
because he was “sentenced to lifetime supervision for failure to update registry.” (2255
Mot. p. 4)
For his second allegation, Kozohorsky complains that “I was sentenced to
120 months when Federal Sentencing Guidelines were 57 months that is over 100%
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upward departure, without specific reasons for departure . . .” and cites “abuse of
discretion standard 28 U.S.C. § 944(b)(2) F.S.G.” (sic) Kozohorsky also claims that
“Judge gave me a 2 point enhancement and only a jury may do so for obstruction of
justices.” (sic) (2255 Mot. p. 5).
For his third allegation, Kozohorsky alleges “double jeopardy/breech of
contract caused by Federal government with State of Mo.” Specifically Kozohorsky
claims that “I had 2 failure to register cases I plead guilty to one and the
contract/agreement with State of Missouri was other one would be null processed and be
done away with, yet Federal Government picked it up causing a breech of contract and
infringing on states right to enter into a legal contract with me. I served a 3 yr. sentence in
State of Missouri already for this exact same charge.” (sic) (2255 Mot. p. 7)
For his fourth allegation, Kozohorsky alleges “ineffectiveness of counsel”
and supports that allegation by claiming that his counsel “missed many legal issues and
rendered me ineffectiveness of counsel.” (sic) Kozohorsky summarizes his claims
asserted in Grounds One, Two and Three by claiming that his attorney “missed
oversentencing, breech of state contract, improper for a Judge to find obstruction of
justice and enhance sentence by 2 points without a jury’s finding and so much more.”
(sic) (2255 Mot. p. 8)
III. APPLICABLE LAW
NEED FOR EVIDENTIARY HEARING AND BURDEN OF PROOF.
28 U.S.C. § 2255 provides in pertinent part:
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Unless the motion and the files and records of the case conclusively show that the
prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.
28 U.S.C. § 2255.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court states:
The motion, together with all the files, records, transcripts, and
correspondence relating to the judgment under attack, shall be examined promptly
by the judge to whom it is assigned. If it plainly appears from the face of the
motion and any annexed exhibits in the prior proceedings in the case that the
movant is not entitled to relief in the district court, the judge shall make an order
for its summary dismissal and cause the movant to be notified.
When a petition is brought under Section 2255, the petitioner bears the burden of
establishing the need for an evidentiary hearing. In determining whether petitioner is
entitled to an evidentiary hearing the court must take many of petitioner’s factual
averments as true, but the court need not give weight to “conclusory allegations, selfinterested characterizations, discredited inventions, or opprobrious epithets.” United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary “when a
Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate is
conclusively refuted as to the alleged facts by the files and the records of the case.’” Id. at
225-26, quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974). See also United
States v. Robinson, 64 F.3d 403 (8th Cir. 1995), and Engelen v. United States, 68 F.3d
238, 240 (8th Cir. 1995).
When all the information necessary for the court to make a decision with regard to
claims raised in a 2255 motion is included in the record, there is no need for an
evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). An
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evidentiary hearing is unnecessary where the files and records conclusively show
petitioner is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th Cir.
INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim alleging ineffective assistance of counsel, the movant must
satisfy the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). Under Strickland, the movant must first show that the counsel’s performance was
deficient. 466 U.S. at 687. This requires the movant to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. Secondly, the movant must demonstrate that the deficient
performance prejudiced the defense so as “to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. The movant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
The Eighth Circuit has described the two-fold test as follows: (1) counsel’s
representation fell below an objective standard of reasonableness; and (2) but for this
ineffective assistance, there is a reasonable probability that the outcome of the trial would
have been different. Rogers, 1 F.3d at 700 (quotations omitted). More recently the Eighth
Circuit has described the Strickland test as follows: “whether counsel’s performance was
in fact deficient and, if so, whether the defendant was prejudiced by the inadequate
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representation. If we can answer ‘no’ to either question, then we need not address the
other part of the test.” Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000).
When evaluating counsel’s performance, the court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Counsel’s performance is
considered objectively, and gauged “whether it was reasonable ‘under prevailing
professional norms’ and ‘considering all the circumstances.’” Fields, 201 F.3d at 1027,
quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Counsel’s challenged conduct
is viewed as of the time of his representation. “And we avoid making judgments based on
hindsight.” Fields, 201 F.3d at 1027. A reviewing court’s “scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
“’When assessing attorney performance, courts should avoid the distorting effects of
hindsight and try to evaluate counsel's conduct by looking at the circumstances as they
must have appeared to counsel at the time.’” Rodela-Aguilar v.United States, 596 F.3d
457, 461 (8th Cir. 2010), quoting United States v. Staples, 410 F.3d 484, 488 (8th Cir.
CLAIMS WHICH COULD HAVE BEEN RAISED ON DIRECT
Claims which could have been raised on direct appeal and were not so raised, are
not cognizable pursuant to 28 U.S.C. § 2255 unless the movant can show both cause for
failure to raise the issue on direct appeal and prejudice resulting from the failure.
Thompson v. United States, 7 F.3d 1377, 1379 (8th Cir. 1993).
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Relief under 28 U.S.C. § 2255 is available to correct errors that could have been
raised at trial or on direct appeal, if the petitioner shows cause for the default and
resulting prejudice. The cause and prejudice exception, however, “does not apply to
nonconstitutional or nonjurisdictional claims that could have been but were not raised on
direct appeal.” Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). “A petitioner
simply cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if
the issue could have been raised on direct appeal but was not.” Id. (citations omitted). A
movant’s pro se status does not excuse procedural default. Stewart v. Nix, 31 F.3d 741,
743 (8th Cir. 1994).
Section 2255 claims may provide relief for cases in which the sentence was in
excess of the maximum authorized by law. See United States v. Wilson, 997 F.2d 429,
431 (8th Cir. 1993). However, this provision has been held to apply “to violations of
statutes establishing maximum sentences, rather than garden-variety sentencing guideline
application issues.” Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995). Therefore,
sentencing guideline arguments do not fall under the § 2255 provision for sentences in
excess of the maximum authorized by law and should be brought only on direct appeal.
Accordingly, if a movant fails to raise sentencing guideline errors by direct appeal
then he is prohibited from raising such sentencing guideline issues in a § 2255 motion,
unless he can show both cause for failure to raise the issue on direct appeal and actual
prejudice resulting from the failure.
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KOZOHORSKY’S COUNSEL WAS NOT INEFFECTIVE, AND
KOZOHORSKY WAS NOT PREJUDICED WHEN HIS LAWYER
FAILED TO MAKE AN OBJECTION TO KOZOHORSKY BEING
SENTENCED TO A LIFETIME TERM OF SUPERVISED RELEASE
BECAUSE IT WAS AUTHORIZED BY 18 U.S.C. § 3583(k)
In Ground 1, Kozohorsky alleges that his counsel was ineffective because he was
“sentenced to lifetime supervision for failure to update registry.” At sentencing
Kozohorsky did not object to the imposition of a lifetime term of supervision, nor did
Kozohorsky include such a claim in his direct appeal. Kozohorsky has not shown, and
cannot show, both cause for failure to raise this issue on direct appeal and nor any
prejudice resulting from such failure. Kozohorsky is, therefore, precluded from asserting
such a claim in a motion for post-conviction relief.
Even if Kozohorsky had timely asserted an objection to the imposition of a
lifetime term of supervised release and included such a claim on direct appeal,
Kozohorsky’s claim is without merit. Kozohorsky was convicted of violating 18 U.S.C. §
2250 for failing to register as a convicted sex offender as required by the Sex Offender
Registration and Notification Act. As referenced in Kozohorsky’s Presentence Report,
pursuant to 18 U.S.C. § 3583(k), the authorized term of supervised release upon
conviction for a violation of 18 U.S.C. § 2250 is a term of years of not less than five
years, or life. (PSR ¶ 68) The term of supervised release of life was also authorized by
U.S.S.G. §5D1.2(b)(2) since Kozohorsky was convicted of a “sex offense” as defined by
Application Note 1 to §5D1.2(b)(2). (PSR ¶ 69)
When Kozohorsky was sentenced on April 23, 2012, a violation of 18 U.S.C. §
2250 was considered to be a sex offense resulting in an advisory Guidelines range of up
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to life imprisonment pursuant to U.S.S.G. § 5D1.2(b)(2). However, the following year,
the Seventh Circuit Court of Appeals held that a sex offender’s conviction for failing to
register under 18 U.S.C. § 2250 did not qualify as a “sex offense” subjecting him to a
lifetime term of supervised release under the Guidelines. United States v. Goodwin, 717
F.3d 511, 520 (7th Cir. 2013). The Seventh Circuit then held that the “entire Guidelines
‘range’ becomes the statutory minimum of five years—not five years to life, as the PSR
erroneously states.” Id. at 520. Goodwin’s holding was limited to determining the
appropriate Guidelines range for a violation of 18 U.S.C. § 2250. The Seventh Circuit
expressly recognized that district courts are authorized to impose a lifetime term of
supervised release in failure to register cases.
We also note that in reaching the conclusion that errors concerning the
application f U.S.S.G. § 5D1.2(b)(2) warrant resentencing, we do not mean to
imply that the district court is not authorized to impose a lifetime term of
supervised release. Obviously, 18 U.S.C. § 3583(k) clearly authorizes any term of
years from five to life. Rather, we are stating that if on remand the district court
imposes a supervised release term greater than five years, this term will have to be
explained by something other than the currently available five-year Guidelines
Id. at 521.
The Eighth Circuit’s decision in United States v. Deans, 590 F.3d 907 (8th Cir.
2010) would support a contrary result to Goodwin’s holding that there is a single point
five year advisory Guidelines range for Section 2250 offenses. The Deans court held that
the statutory supervised release range becomes the Guidelines range whenever a statutory
minimum exceeds (or is equal) to the Guidelines maximum. Deans was convicted of
conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
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846, a class C felony. He was sentenced to five years imprisonment and five years of
supervised release. Id. at 908-09. Deans argued on appeal that U.S.S.G. § 5D1.2(a)(2)
provided a maximum term of three years supervised release for his Class C felony.
Rejecting Deans’ argument, the Eighth Circuit noted:
However, that provision is subject to the exception in § 5D1.2(c), which provides
that the term imposed “shall not be less than any statutorily required term of
supervised release.” Here, the relevant sentencing statute, 21 U.S.C. §
841(b)(1)(C), expressly trumps the generally applicable terms of supervised
release set forth in 18 U.S.C. § 3583(b), which are the statutory bases for §
5D1.2(a). . . .
Thus, imposition of a five-year term was neither an upward departure nor
Id. at 911. (citation omitted) Under that rationale, the statutorily-authorized supervised
release range in Kozohorsky’s case, five years to life, would be the Guidelines range.
Recognizing the contrast between the rationale employed by the Eighth Circuit in
Deans and by the Seventh Circuit in Goodwin, the Department of Justice has decided to
adopt the Goodwin court’s reasoning. It is therefore the Government’s position that a
failure to register offense is not a sex crime under U.S.S.G. § 5D1.2(b) and that the
advisory supervised release Guidelines range for failure to register offenses under 18
U.S.C. § 2250 is a single point of five years. However, in SORNA cases like
Kozohorsky’s, pursuant to 18 U.S.C. § 3583(k), the statutorily-authorized term of
supervised release upon conviction for a violation of 18 U.S.C. § 2250 is a term of years
of not less than five years, or life.
While the Government maintains that Goodwin’s reasoning limiting the
supervised release Guidelines range to five years for failure to register offenders is more
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persuasive, Kozohorsky’s counsel was not ineffective for failing to challenge the
Guidelines range of supervised release of five years to life because the Eighth Circuit’s
rationale in Deans provided support for that calculation. At the time of Kozohorsky’s
sentencing on April 23, 2012, Deans had been decided, but Goodwin had not.
Kozohorsky’s counsel was not ineffective for failing to attack the imposition of a lifetime
term of supervised release based on a rationale that, at that time, had no support in any
published appellate decision, and that even now might not affect the supervised release
range in light of the Eighth Circuit’s decision in Deans.
SENTENCE OF 120 MONTHS AND ENHANCEMENT FOR
OBSTRUCTION OF JUSTICE WERE UPHELD ON DIRECT
For his second allegation, Kozohorsky complains that “I was sentenced to 120
months when Federal Sentencing Guidelines were 57 months that is over 100% upward
departure, without specific reasons for departure . . .” and cites “abuse of discretion
standard 28 U.S.C. § 944(b)(2) F.S.G.” (sic) Kozohorsky also claims that “Judge gave me
a 2 point enhancement and only a jury may do so for obstruction of justices.” (sic) (2255
Mot. p. 5).
In his direct appeal, Kozohorsky argued that his sentence of 120 months was
substantively unreasonable. Noting that its review for substantive reasonableness was
“under a deferential abuse of discretion standard,” the Eighth Circuit upheld
Kozohorsky’s sentence as being well within the district court’s discretion to “decide that
‘if ever there was a registration violation case that deserved an upward variance, this is
it.’” Kozohorsky, 708 F.3d at 1034. Similarly, Kozohorsky also challenged on direct
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appeal the imposition of the two level enhancement for obstruction of justice. The Eighth
Circuit upheld the imposition of the enhancement. Id. at 1032. Kozohorsky’s claims that
his sentence was unreasonable and was improperly enhanced for obstructing justice by
testifying falsely at trial were considered and decided adverse to him on direct appeal.
Accordingly, those claims cannot be relitigated in his motion to vacate his sentence.
Claims that “were raised and decided on direct appeal cannot be relitigated on a motion
to vacate pursuant to 28 U.S.C. § 2255.” Davis v. United States, 673 F.3d 849, 852 (8th
Cir.2012) (citing Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003))
Kozohorsky’s claim that only a jury may apply a guideline enhancement for
obstruction of justice is devoid of merit. The facts supporting an enhancement for
obstruction of justice are determined by the district court. “A defendant is subject to an
enhancement under U.S.S.G. § 3C 1.1 if he testifies falsely under oath in regard to a
material matter and does so willfully rather than out of confusion or mistake.” United
States v. Mabie, 663 F.3d 322, 334 (8th Cir. 2011) (quoting United States v. Mendoza–
Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004)). “A district court must find the predicate
facts supporting such an enhancement for obstruction of justice by a preponderance of the
evidence.” United States v. Alvarado, 615 F.3d 916, 922 (8th Cir. 2010).
KOZOHORSKY’S CLAIM THAT DOUBLE JEOPARDY BARRED
HIS FEDERAL PROSECUTION FOR FAILURE TO REGISTER AS
A SEX OFFENDER WAS REJECTED ON DIRECT APPEAL
For his third allegation, Kozohorsky alleges “double jeopardy/breech of contract
caused by Federal government with State of Mo.” Specifically Kozohorsky claims that “I
had 2 failure to register cases I plead guilty to one and the contract/agreement with State
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of Missouri was other one would be null processed and be done away with, yet Federal
Government picked it up causing a breech of contract and infringing on states right to
enter into a legal contract with me. I served a 3 yr. sentence in State of Missouri already
for this exact same charge.” (sic) (2255 Mot. p. 7) Prior to trial Kozohorsky moved to
dismiss the charge against him, “arguing that federal prosecution was barred under the
double jeopardy and due process clauses of the Fifth Amendment. The district court
denied his motion, and the case went to trial.” Kozohorsky, 708 F.3d at 1031. On appeal,
Kozohorsky renewed his claim that double jeopardy barred his federal prosecution for
failure to register as a sex offender. The Eighth Circuit rejected Kozohorsky’s claim.
Kozohorsky’s Missouri conviction was based on his failure to register in that state
in 2009, but he was prosecuted and convicted in federal court based on his failure
to register in Arkansas in 2010. The Fifth Amendment only prohibits multiple
prosecutions for “the same offence,” U.S. Const. amend. V, and does not apply to
charges based on separate and distinct acts. See Blockburger v. United States, 284
U.S. 299, 301–04, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Id. As previously discussed, this claim cannot be relitigated in Kozohorsky’s motion to
vacate his sentence. Davis, 673 F.3d at 852.
KOZOHORSKY’S COUNSEL WAS NOT INEFFECTIVE, NOR
WAS KOZOHORSKY PREJUDICED BY COUNSEL’S
For his fourth allegation, Kozohorsky alleges “ineffectiveness of counsel” and
supports that claim with a conclusory allegation that his counsel “missed many legal
issues and rendered me ineffectiveness of counsel.” (sic) Kozohorsky summarizes his
claims asserted in Grounds One, Two and Three by claiming that his attorney “missed
oversentencing, breech of state contract, improper for a Judge to find obstruction of
Page 22 of 24
justice and enhance sentence by 2 points without a jury’s finding and so much more.”
(sic) (2255 Mot. p. 8)
Kozohorsky merely restates his claims set forth in Grounds One, Two and Three
of his Motion, and blames his counsel for the adverse findings on those issues. As
discussed previously, those issues were either briefed, argued, and decided adversely to
Kozohorsky on appeal, or had no merit. Kozohorsky fails to support his conclusory
allegations of ineffective assistance of counsel with any facts indicating his counsel was
ineffective. Moreover, Kozohorsky cannot establish prejudice by any actions or
omissions of his counsel, because he cannot establish a reasonable probability that his
sentence would have been less than 120 months even if he had alleged and could prove
that his attorney was ineffective. As noted by this Court, “if ever there was a registration
violation case that deserved an upward variance, this is it.”
The record refutes all Kozohorsky’s claims of ineffective assistance of counsel. In
fact, the record demonstrates that Kozohorsky received very effective assistance of able
counsel throughout the proceedings, including on direct appeal. Kozohorsky cannot prove
Strickland prejudice on any of his claims.
Kozohorsky cannot show that his attorney was ineffective for any of the reasons
mentioned in his Motion. Kozohorsky’s allegations of ineffective assistance are
contradicted and refuted by the record. Kozohorsky’s allegations of ineffective assistance
of counsel fail both prongs of the Strickland test.
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Accordingly, the Petition Under 28 U.S.C. § 2255 filed by Kozohorsky is
DENIED. The record conclusively refutes Kozohorsky’s allegations of ineffective
assistance of counsel on each point raised by Kozohorsky in his 2255 Motion. Secondly,
Kozohorsky cannot demonstrate prejudice by any alleged errors by his counsel, in that
there is no reasonable probability that Kozohorsky would have received a sentence lower
than the ten years. Kozohorsky received very effective assistance of counsel at all stages
of the proceedings against him, by a very able, experienced and competent attorney.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Kozohorsky has not made a substantial showing of the denial of a
federal constitutional right.
SO ORDERED this 19th day of September, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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