Hodge v. United States of America

Filing 13

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Movant Bradley Hodge's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1 ] is DENIED. IT IS FURTHER ORDERED that Movant's Motion for Leave to File a § 2255 Motion that Exceeds 25 Pages [ECF No. 2 ] is GRANTED, and that his Motion for an Evidentiary Hearing and the Appointment of Counsel [ECF No. 3 ] is DENIED. IT IS FURTHER ORDERED that the Court shall not issue a Certificate of Appealability as to any claim raised in Movant's Motion. Dated this 15th day of November, 2011. Signed by Honorable E. Richard Webber on November 15, 2011. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRADLEY HODGE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:11CV00316 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on pro se Movant Bradley Hodge’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF
No. 1]. The United States has filed a Response [ECF No. 6] and the Movant has filed a Traverse
[ECF No. 12].
I.

FACTUAL AND PROCEDURAL BACKGROUND1
On October 9, 2008, the United States charged Movant with three criminal counts: (1)

conspiracy to possess pseudoephedrine, a List 1 chemical, knowing and having reason to believe
it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2); (2)
possession of pseudoephedrine, a List 1 chemical, knowing and having reason to believe it would
be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2); and (3) and
conspiracy to manufacture and distribute more than fifty grams of methamphetamine, a Schedule
II controlled substance, in violation of 21 U.S.C. 841(a)(1). Movant was appointed counsel upon
his indictment and he was represented by counsel at all times thereafter. After a three-day jury

1

The criminal proceedings that underlie Movant’s present § 2255 Motion can be found at
United States v. Hodge, 4:08-cr-00420-ERW-1.

trial, Movant was found guilty on each count. Movant was sentenced to three terms of 240
months’ imprisonment, with each term to run concurrently.
Movant appealed to the United States Court of Appeals for the Eighth Circuit. See
United States v. Hodge, 594 F.3d 614 (8th Cir. 2010). Movant argued that the District Court
erred in denying his motion for judgment of acquittal and in determining his sentence. Id. at 616.
Movant raised additional issues in a pro se supplemental brief and motion. Id. at 620 n.2. The
Eighth Circuit rejected these arguments and affirmed in full Movant’s conviction and sentence,
specifically writing that “[t]here was overwhelming evidence at trial of a conspiracy to
manufacture methamphetamine.” Id. at 618.
On February 17, 2011, Movant filed pro se the pending Motion Under 28 U.S.C. § 2255.
As grounds for relief, Movant alleges that his trial counsel was ineffective, that his appellate
counsel was ineffective, that the United States committed prosecutorial misconduct, and that he
was denied a fair trial.
II.

LEGAL STANDARD: RELIEF UNDER 28 U.S.C. § 2255
By filing a motion under 28 U.S.C. § 2255, a federal prisoner may seek to “vacate, set

aside or correct” a sentence imposed against him, on the ground that “the sentence was imposed
in violation of the Constitution or the laws of the United States[.]” 28 U.S.C. § 2255(a). Relief
under § 2255 is “reserved for transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal, and, if uncorrected, would result in a
complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
Section 2255 does not provide a means for movants to relitigate the merits of the evidence
presented at their trial. See Houser v. United States, 508 F.2d 509, 513-14 (8th Cir. 1974)

2

(“Prisoners adjudged guilty of crime should understand that 28 U.S.C.A. 2255 does not give
them the right to try over again the cases in which they have been adjudged guilty.”).
Procedural default may limit the relief available to a § 2255 movant. First, a movant
cannot raise a claim that was previously raised and decided on direct appeal. United States v.
Davis, 406 F.3d 505, 511 (8th Cir. 2005). Second, a movant cannot raise a non-constitutional or
non-jurisdictional claim that could have been raised on direct appeal but was not. Anderson v.
United States, 25 F.3d 704, 706 (8th Cir. 1994). Third, a movant cannot raise a constitutional or
jurisdictional claim that was not raised on direct appeal unless he “can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993,
1001 (8th Cir. 2001). However, a movant may raise a claim of ineffective assistance of counsel
for the first time in a § 2255 motion, regardless of whether the claim could have been raised on
direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).
If a movant’s claim is not procedurally barred, the Court must hold an evidentiary hearing
to consider it, “[u]nless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Thus, a movant is entitled to an
evidentiary hearing “when the facts alleged, if true, would entitle [the movant] to relief.” Payne
v. United States, 78 F.3d 343, 347 (8th Cir. 1996). In contrast, a court may dismiss a movant’s
claim without an evidentiary hearing “if the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based.” Shaw v. United States, 24
F.3d 1040, 1043 (8th Cir. 1994).
III.

DISCUSSION
Movant seeks relief under four theories: that his trial counsel was ineffective, that his

appellate counsel was ineffective, that the United States committed prosecutorial misconduct,

3

and that he was denied a fair trial. Because Movant is filing pro se, the Court has given his
filings a liberal interpretation. Smith v. Hundley, 190 F.3d 852, 855 n.7 (8th Cir. 1999) (courts
must give pro se filings a liberal construction).
A.

Ineffective Assistance at Trial

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set
forth the two-part test a § 2255 movant must satisfy in order to prevail on a claim of ineffective
assistance:
First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
A § 2255 movant seeking to prevail on a claim of ineffective assistance of counsel faces
“a heavy burden.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Under
Strickland’s first prong, a court reviewing counsel’s performance must be “highly deferential”
and “indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” Strickland, 466 U.S. at 689. Under Strickland’s second
prong, a movant can demonstrate prejudice only by showing “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. A court may address these prong in any order; failure to satisfy either is
dispositive. Id. at 697. See also Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (“If
we can answer ‘no’ to either question, then we need not address the other part of the test.”)
(citation omitted).
4

In his § 2255 Motion, Movant makes ten allegations of ineffective assistance at trial. The
Court will consider each of these allegations, in turn.
1. Failure to Refute Trial Testimony, to Investigate Case, and to Call Witness
Movant’s first allegation contains a series of three related claims regarding numerous
persons whom he asserts were mentioned at trial, but were not called as witnesses. Movant
asserts that the United States called Christina Dittmaier, Kimberly Mercer, and Scott Skaggs as
witnesses, and then elicited from these witnesses the names of numerous other persons who
participated in a methamphetamine conspiracy with Movant. Movant complains that because
these other persons were not themselves called to testify, the jury was misled into believing the
witnesses’ testimony about them was true. Movant alleges his counsel was ineffective with
respect to these non-testifying persons, because his counsel did not challenge the witnesses’
testimony about them, did not investigate his case by interviewing them, and did not call them as
witnesses.
Movant’s first claim is that his counsel was in effective for failing to challenge the
witnesses’ testimony about numerous non-testifying persons. Movant asserts that the United
States’ witnesses mentioned the following names at trial: Charles Rossi, David Dudash, Audra
Stuckenschneider, Craig Manning, Jacob Pullen, Christopher Murphey, Jamie Brinkley,
Christopher Ecton, Daniel Sheputis, and Heather Woolridge. The Court has reviewed, in full, the
transcript of Movant’s three-day trial, and these names do not appear in it at any point.
Accordingly, the record affirmatively refutes Movant’s claim with respect to these persons.
Movant also makes this same claim with respect to the following persons: Jeremy
Decker, Kenneth Gilliam, Jason Boussum, Madesta Bach, Paula Wilson, Toyna Kernbeck, and
Derek Hodge. A review of the trial transcript does show that the United States and its witnesses

5

mentioned these persons. However, the trial transcript also shows that Movant’s counsel
attacked the credibility of the United States’ witnesses on cross-examination, by highlighting the
motives that may have influenced the witnesses’ testimony and instances in which the witnesses
previously had been untruthful. Counsel’s manner of cross-examination is a matter of trial
strategy that this Court must review with high deference. See Strickland, 466 U.S. at 689; see
also United States v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001) (“We generally entrust
cross-examination techniques, like other matters of trial strategy, to the professional discretion of
counsel.”). Accordingly, Movant’s trial counsel cross-examination of these witnesses was not
ineffective and Movant’s is not entitled to relief on this claim.
Movant’s second claim is that his counsel was ineffective because he did not investigate
his defense by interviewing the non-testifying persons listed above. Movant states that if his
counsel had done so, he would have obtained information with which he could have refuted the
United States’ case and attacked its witnesses’ credibility. The United States responds by stating
that each of these persons was charged with pseudoephedrine and methamphetamine crimes and
was represented by counsel,2 thus limiting the ability of Movant’s counsel to contact them.
On this allegation, the case of United States v. Vazquez-Garcia is instructive. See
Vazquez-Garcia, 211 F. App’x 544 (8th Cir. 2007). In Vazquez-Garcia, a § 2255 movant sought
relief from his imprisonment for drug crimes, on the grounds that his trial counsel was ineffective
for failing to interview a potential defense witness. Id. at 544-45. The movant asserted that the
witness “would have testified that movant was not involved in the [drug] conspiracy that led to

2

See United States v. Decker et al., 4:08-cr-00376-CAS (criminal proceedings against
Decker, Gilliam, Rossi, Skaggs, Bossum, Dudash, Stuckenschneider, Ecton, Mercer, Bach,
Manning, Wilson, Pullen, Murphey, Brinkley, and Kernebeck); United States v. Hodge, 4:07-cr00722-CDP (criminal proceedings against Derek Hodge); United States v. Sheputis et al., 4:08cr-00543-CEJ (criminal proceedings against Sheputis and Wooldridge).
6

his conviction.” Id. at 545. The Eighth Circuit wrote that even if it assumed that the trial
counsel’s failure to interview the witness was unreasonable, the movant could prevail only if he
could also make “a substantial showing that, but for counsel’s failure to interview the witness in
question, there is a reasonable probability that the result of his trial would be different.” Id. at
546 (citation and alterations omitted). The Eighth Circuit ruled that movant could not make that
substantial showing, because he did not present any affidavits or other independent evidence as
to what the witness would have said if he was interviewed. Id. Instead, “the only information
about what [the witness’s] potential testimony would have been is speculation on the part of [the
movant].” Id. The Eighth Circuit state that “we decline to find prejudice in this situation when
there is no evidence other than speculation to support the finding. Id. (citation omitted).
Vasquez-Garcia is directly applicable to Movant’s allegation, in which he alleges that his
counsel would have found uncovered defense evidence if he had interview numerous persons.
Movant has not presented the Court with any independent evidence of what these persons would
have said had they been interviewed; instead, his § 2255 Motion contains only speculation.
Following Vazquez-Garcia, the Court cannot find that Movant has shown prejudice.
Finally, Movant’s third claim is that his counsel was ineffective for failing to call these
same non-testifying persons as witnesses. On the record presented, the Court cannot determine
whether counsel conducted a “thorough investigation” with respect to these persons, and thus the
Court cannot determine whether counsel’s decision not to call these persons as witnesses was a
“reasoned decision” and “strategic choice.” See Rodela-Aguilar v. United States, 596 F.3d 457,
464 (8th Cir. 2010) (citations omitted).
Movant’s claim fails, however, because he has not provided any independent evidence of
how these non-testifying persons would have testified if his counsel had called them as

7

witnesses. See Armstrong v. Kemna, 534 F.3d 857, 867 (8th Cir. 2008) (“Ordinarily, a
defendant's failure to present some evidence from the uncalled witness regarding that witness's
potential testimony ... would be fatal to an ineffective assistance of counsel claim.”). In addition,
to determine whether the failure to call witnesses resulted in prejudice, a court must consider:
“(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense
witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called;
and (3) the strength of the evidence actually presented by the prosecution.” Id. at 596 (citation
omitted). Here, the United States presented “overwhelming evidence” of Movant’s participation
in a conspiracy to manufacture methamphetamine, see Hodge, 594 F.3d at 618, and the persons
Movant has identified as potential witnesses were also charged by the United States with related
drug crimes. See United States v. Staples, 410 F.3d 848, 489 (8th Cir. 2005) (“Impeachment
specifics aside, there is considerable risk inherent in calling any witness because if the witness
does not hold up well on cross-examination, the jurors might draw unfavorable inferences against
the party who called him or her.”). Accordingly, Movant cannot show that there is a reasonable
probability he would not have been found guilty but for his counsel’s conduct, and his claim
fails.
2. Failure to Strike Juror No. 35
Movant alleges that his counsel was ineffective for failing to strike Venireperson No. 35
(“No. 35") during voir dire, because No. 35 made statements that she could not be “fair and
impartial” and “exhibited, by words and phrases, her inability to be objective, reasonable,
unbiased, and impartial.” No. 35 was ultimately empaneled on the jury as Juror No. 11.3
Movant’s allegation arises from No. 35's answers regarding questions about Jeremy Decker, a

3

See Hodge, 4:08-cr-00420-ERW-1, Jury Selection, Trial Transcript Vol. I at 110.
8

potential witness for the United States.4 In response to questioning from the Court, No. 35
indicated that she might have known Jeremy Decker from her previous employment as a juvenile
officer in Jefferson County, Missouri. A review of the voir dire transcript shows that the
following exchange occurred:
U.S.:
No. 35:

Court:
No. 35:
Court:

If he testified in this case, would you automatically believe or disbelieve
him, based on your previous encounters with him?
I know his history a little bit of, you know, trouble with Juvenile. I think I would
probably – just being honest with you, I know that there’s a history, just due to
my background, you know, if it is, in fact, the same individual. I mean it’s just an
honest answer.
Okay.
I mean I can still try to listen to the fact, but I, you know, knowing a little bit of
history.
Okay. Okay. All right.

The United States asked later whether there were any venirepersons who would “automatically
disbelieve” the testimony of a person who had pled guilty to related drug crimes and was
testifying against Movant in the hopes of receiving a reduced sentence. The following exchange
occurred:
No. 35: I just feel as though it [i.e., the testimony of such a person] could be tainted.
U.S.: Okay.
No. 35: I’ve never done this before, so I would feel as though it could possibly, but it
would be very hard to believe what they’re saying.
U.S.: Because you haven’t heard their testimony yet and you haven’t heard any of the
other evidence in the case. Could you keep an open mind?
No. 35: I could try to keep an open mind, but I would have those feelings.5

As shown above, No. 35 did not express a generalized inability to be a fair and impartial
juror. Instead, she raised two narrow concerns: that her knowledge of Decker’s “history” and

4

The United States ultimately did not call Jeremy Decker as a witness at Movant’s trial.

5

For the text of these two exchanges, see Hodge, 4:08-cr-00420-ERW-1, Trial Transcript
Vol. I. at 19-20, 71-72 [ECF No. 130].
9

“trouble with juvenile” might influence her assessment of his testimony, and that she felt the
testimony of a person who was testifying against Movant in the hope of receiving a more lenient
sentence would be tainted. Therefore, both of No. 35's concerns express a potential bias only
against testimony presented by the United States; her concerns do not raise any suggestion that
she would be prejudiced in favor of Movant’s guilt or that she would disregard evidence
favorable to Movant. It was not unreasonable for Movant’s counsel to refrain from striking No.
35, given that she had twice expressed a potential inability to fairly assess testimony presented by
the United States. In addition, “[a] decision regarding what jurors should be challenged with
peremptory strikes is a question of trial strategy, and the court will not second-guess counsel’s
decisions.” Quinn v. United States, No. 1:16CV00062, 2007 WL 3171450, *7 (E.D. Mo. Oct.
26, 2007) (unpublished) (citation omitted). For these reasons, Movant’s claim is without merit
and Movant is not entitled to relief on this ground.
3. Failure to Object to Unrelated Multiple Conspiracy Evidence
Movant alleges that his counsel was ineffective in failing to aggressively and properly
object to evidence of multiple conspiracies to manufacture methamphetamine because this
evidence was not related to the crimes charged against him. Movant contends that because the
witnesses “testified to activities that purportedly took place at various locations, on various dates
and times, and that involved other and unrelated individuals,” there is a “very real danger that
[he] was convicted on the basis of evidence that spilled over from the multiple conspiracies
presented” by the United States. Movant argues that his claim of unrelated multiple conspiracy

10

evidence is supported by the indictment of numerous other persons for related drug crimes,6 and
by the United States’ remarks during opening and closing statements.7
The United States charged Movant with two conspiracy crimes: conspiracy to possess
pseudoephedrine, and conspiracy to manufacture and distribute more than fifty grams of
methamphetamine. At trial, United States presented witness testimony that established that
Movant was a methamphetamine cook, and that Movant provided the methamphetamine he
manufactured to persons who supplied him with pseudoephedrine pills and cook locations.
Accordingly, testimony about persons who supplied him with pills and cook locations was
introduced to prove Movant’s knowledge of and participation in the alleged conspiracy.
Additional witness testimony established further that these same persons also supplied pills and
cook locations to other methamphetamine cooks.
Movant is correct that the United States and its witnesses did make some reference to
methamphetamine cooks other than Movant who operated distinct conspiracies, but these
references do not compel the conclusion that the United States introduced unrelated multiple
conspiracy evidence as a basis for convicting Movant. The trial transcript shows that the

6

See supra, note 2.

7

See Hodge, 4:08-cr-00420-ERW-1, Opening Statement, Trial Transcript Vol. I at 128
(“And you’ll learn from Detective Smith that a couple of names popped up and popped up on a
regular basis. And you’ll hear these names throughout the testimony who aren’t actually involved
in this particular conspiracy but that is how the investigation led to the people that I’ve talked to
you about.”) [ECF No. 130]; Id., Closing Statement, Trial Transcript Vol. III at 390 (“You heard
a lot of other names, a lot of other testimony. Scott Skaggs also started cooking. That would be a
different conspiracy. All the people who were bringing the pills to him, that’s something else.
Kenneth Gilliam was a cook. That would be a different conspiracy. That would involve Kenneth
Gilliam. Kim Mercer brought him pills. Christina Dittmaier brought him pills. That’s a different
issue. In looking at this evidence, what you need to focus on is this conspiracy. Bradley Hodge
was the cook in this conspiracy, and these are the other individuals who were involved in this
conspiracy.”) [ECF No. 132].
11

references to other cooks were tangential to the evidence presented against Movant and served no
purpose other than providing background information and context. See United States v. Byers,
603 F.3d 503, 506 (8th Cir. 2010) (“We have recognized that a jury is entitled to know the
circumstances and background of a criminal charge, and have permitted the introduction of
evidence providing the context in which the crime occurred[.]”) (quotation and citation omitted).
The United States presented overwhelming evidence that Movant conspired to manufacture
methamphetamine, and there is no reasonable probability that Movant would not have been
convicted had counsel objected to these references. Accordingly, Movant’s claim is without
merit and Movant is not entitled to relief on this ground.
4. Failure to Object to Leading Questions
Movant alleges that his counsel was ineffective for failing to object to a series of
questions posed by the United States on direct examination of Detective Joseph Smith.8 During
this questioning, the United States directed Detective Smith’s attention to his investigation of the
pseudoephedrine purchases that lead to Movant’s criminal charges. Specifically, the United
States inquired about Detective Smith’s investigation into persons who made large-volume
purchases of pseudoephedrine pills, as reflected in various pharmacies’ logbooks. Movant
alleges his counsel was ineffective because he did not object that this questioning was leading
and lacked foundation.
A review of the record shows that counsel did in fact object to one question that Movant
challenges.9 More generally, whether or not to object to questioning is a matter of attorney trial

8

See Hodge, 4:08-cr-00420-ERW-1, Transcript Vol. II. at 149, 151, 153, 154 [ECF No.

9

See Hodge, 4:08-cr-00420-ERW-1, Transcript Vol. II. at 151-52 [ECF No. 131].

131].

12

strategy that the courts must review with high deference. See Villalpando, 259 F.3d at 939;
Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (“However, failure to object to leading
questions and the like is generally a matter of trial strategy as to which we will not second guess
counsel.”); United States v. Pedigo, 12 F.3d 618, 623 (7th Cir. 1993) (“Failing to object to
leading questions may be a matter of trial tactics and strategy.”). In addition, a review of the trial
transcript shows that this questioning lead to evidence which was clearly admissible. Therefore,
the Court finds that counsel’s failure to object to this questioning was a matter of trial strategy
and was not deficient, and Movant’s claim will be denied.
5. Failure to Move the Court for Expert Services to Test Movant’s Cook Equipment
Movant alleges that his counsel was ineffective for failing to seek a court-appointed
expert witness to conduct DNA testing of articles found at a methamphetamine laboratory.
Movant argues that he had no knowledge of or involvement with these articles and that DNA
testing would have destroyed the United States’ ability to link them to him.10
Under 18 U.S.C. § 3006A(e), to obtain a court-appointed expert a defendant must show
that the expert is “necessary for adequate representation” and that there is a “reasonable
probability that the requested expert would aid in his defense and that the denial of funding
would result in an unfair trial.” See United States v. Mentzos, 462 F.3d 830, 839 (8th Cir. 2006)
(citations omitted). Movant presents no facts to suggest that he would have meet this standard
and been appointed an expert if his counsel had only filed a request, because the relevant articles
were only a minor aspect of the evidence presented. Moreover, “[t]he failure on the part of

10

The Court notes that Movant has not presented any evidence of what the findings or
testimony of a court-appointed expert would have been. See Rodela-Aguilar, 596 F.3d at 462
(“A claim of ineffective assistance based on the failure to consult and call an expert requires
‘evidence of what a scientific expert would have stated’ at trial in order to establish Strickland
prejudice.”) (quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)).
13

petitioner's counsel to request the appointment of an expert to assist in the defense [does] not
constitute ineffective assistance of counsel.” Orricer v. Erickson, 329 F.Supp. 360, 363 (D. S.D.
1971). Accordingly, Movant has failed to establish that his counsel was deficient and that he
suffered prejudice, and his claims fails.
6. Failure to File a Motion in Limine to Bar Unrelated Multiple Conspiracy Evidence
Movant alleges his counsel was ineffective for failing to file a motion in limine to prevent
the United States from presenting unrelated multiple conspiracy evidence. As discussed above,
the record shows that the United States introduced no such evidence. Instead, the record shows
only that some references to other methamphetamine cooks were made to provide background
and context to the evidence presented. Because the United States presented overwhelming
evidence that Movant himself conspired to manufacture methamphetamine, counsel’s failure to
file this motion did not cause him prejudice. Movant’s claim is without merit and he is not
entitled to relief on this ground.
7. Failure to Require the Court to Resolve Motions Prior to Trial
Movant alleges that his counsel was ineffective for failing to require the Court to rule on
several motions prior to trial. Movant’s allegation is apparently based on the Court’s decision to
hold in abeyance several motions filed by Movant’s counsel in the days leading up to trial.11
The record shows that Movant’s counsel presented argument at pretrial conference, but
that the Court simply decided to hold these matters in abeyance rather than rule on them prior to
trial. Counsel is not ineffective simply because his arguments ultimately are unsuccessful.

11

See Hodge, 4:08-cr-00420-ERW-1, Pretrial Conference Rulings [ECF No. 89] (holding
in abeyance Defendant’s Motion for Production of Witness Statements [ECF No. 78],
Defendant’s Motion for Pretrial Determination of the Admissibility of Co-Conspirator
Statements [ECF No. 80], and Defendant’s Motion in Limine Regarding Testmony of Sergeant
Jason Grellner and Request for Daubert Hearing [ECF No. 81]).
14

James v. Iowa, 100 F.3d 586, 590 (8th Cir. 1996). In addition, there is no basis to find that
counsel’s action caused Movant prejudice, given that he retained the ability to raise these same
issues at trial. Accordingly, Movant’s claim is without merit.
8. Failure to Object to Superseding Indictment
Movant alleges that his counsel was ineffective for failing to object to the superseding
indictment filed against him. Movant argues that because the record does not show that a
“polling sheet” was filed, his counsel should have objected and investigated to ensure the
superseding indictment was legitimate. A review of the indictment shows that the superseding
indictment was signed by the grand jury foreperson as a true bill.12 Movant has alleged no facts
suggesting that it was defective, that his counsel should have known to object to the indictment,
or that his counsel’s failure to object denied him a fair trial. Accordingly, Movant’s claim
provides no basis for relief.
9. Failure to Require the Court to Adhere to the Speedy Trial Act
and to Advise Movant Regarding the Act
Movant alleges his counsel was ineffective for failing to require the Court to adhere to the
Speedy Trial Act, 18 U.S.C. § 3161 et seq., and for recommending that he waive his rights under
that Act. Movant alleges that the resulting delay allowed the United States time to build its case
against Movant and to file the superseding indictment.
The record shows that in a letter to Movant’s counsel dated September 5, 2008, the
United States offered Movant a plea bargain and advised that if Movant did not accept by
September 16, then it would file the superseding indictment. See United States Response,
Attachment 2 [ECF No. 6-2]. As a result, Movant was aware of the possibility of being charged

12

See Hodge, 4:08-cr-00420-ERW-1, Superseding Indicment at 4 [ECF No. 44].
15

under a superseding indictment when he initially filed a Waiver of the Speedy Trial Act on
October 6, 2008,13 and then one day later withdrew that Waiver due to his desire to proceed to
trial promptly.14 Accordingly, the record shows only that Movant’s counsel carried out Movant’s
desire to proceed to trial, thus leading the United States to fulfill its promise by filing a
superseding indictment on October 9, 2008.15 Movant has not shown that his counsel was
ineffective or that he suffered prejudice with regard to the Speedy Trial Act, and therefore his
claim is without merit and does not entitle him to relief.
10. Failure to Break Down Purchases as to Each Conspiracy,
and Various Other Claims
For his final allegation of ineffective assistance at trial, Movant alleges his counsel was
ineffective for failing break down the quantity of pseudoephedrine purchases as to each of the
multiple conspiracies presented, thereby allowing Movant to be convicted of a greater quantity
than indicated by his indictment. As discussed above in section III.A.3, the United States did not
present evidence of multiple conspiracies, and thus counsel was not ineffective.
Movant also makes a number of additional unrelated claims together with this allegation,
including that his counsel was ineffective based on his “cumulative errors”, for failing to
investigate the United States Sentencing Guidelines, for failing to interview United States’
witnesses, for failing to file a bill or particulars, for failing to move to dismiss the indictment on
jurisdictional grounds, and for failing to move to suppress the pharmacy logbooks as violative of
the right against self-incrimination. Movant does not substantiate these claims with any factual or

13

See Hodge, 4:08-cr-00420-ERW-1, Waiver of Speedy Trial Act [ECF No. 38].

14

See Hodge, 4:08-cr-00420-ERW-1, Defendant’s Motion to Withdraw Motion to
Continue October 14, 2008 Trial and Demand for Speedy Trial [ECF No. 39].
15

See Hodge, 4:08-cr-00420-ERW-1, Superseding Indicment [ECF No. 44].
16

legal support and conclusory allegations are insufficient to establish ineffective assistance.
Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001). In addition, ineffective assistance
cannot be established by a theory of “cumulative error”. See, e.g., United States v. Brown, 528
F.3d 1030, 1034 (8th Cir. 2008). Accordingly, Movant’s claims are without merit and do not
entitle him to relief.
B.

Ineffective Assistance on Appeal

Movant’s next theory of relief is that he received ineffective assistance of counsel on
appeal. Movant alleges that his appellate counsel was ineffective because he failed to raise the
issue of whether Venireperson No. 35 (“No. 35") was improperly impaneled as a juror. To
prevail on this claim, Movant must show that his appellate counsel’s failure to raise this issue
was deficient, and that this deficiency resulted in prejudice. United States v. Brown, 528 F.3d
1030, 1032-33 (8th Cir. 2008). Therefore, Movant must show that had his appellate counsel
raised a challenge to No. 35's presence on the jury, then the outcome of the appeal would have
been different -- that is, that his conviction would not have been affirmed. Id. at 1033.
Movant cannot meet this standard. As discussed above in section III.A.2, No. 35's voir
dire testimony does not establish that she was either biased against Movant or generally unable to
serve as an impartial juror. Therefore Movant’s counsel was not defective for failing to raise this
issue on appeal. See Meyer v. Sargent, 854 F.2d 1110, 1115-16 (8th Cir. 19880) (appellate
counsel is not ineffective for failing to raise a meritless appeal). Movant’s claim is without merit
and he is entitled to no relief on this ground.
C.

Prosecutorial Misconduct

Next, Movant attacks his sentence under a theory of prosecutorial misconduct,
specifically alleging that it was misconduct for the United States to introduce unrelated multiple

17

conspiracy evidence. As an initial matter, the Court notes that it appears that Movant already has
raised this claim on direct appeal16 and thus is procedurally barred from raising in again in the
pending § 2255 Motion. See Davis, 406 F.3d at 511. However, out of an abundance of caution,
the Court will proceed to analyze Movant’s claim on the merits.
To prevail on a claim of prosecutorial misconduct, a party must satisfy both prongs of a
two-part test. Graves v. Ault, 614 F.3d 501, 507 (8th Cir. 2010). First, the party must show that
the prosecutor’s conduct was improper. Id. Secondly, the party must show that improper
conduct caused the party prejudice by depriving him of a fair trial. Id. A party has been deprived
of a fair trial only where the improper conduct could reasonably have affected the jury’s verdict.
Id. When determining whether a party has been denied a fair trial, a court considers the
cumulative effect of the misconduct, the strength of the properly admitted evidence of the party’s
guilt, and any curative actions taken by the district court. Id. at 507-08.
Upon analysis, Movant’s claim is without merit. As established above, the United States
did not present unrelated multiple conspiracy evidence. Instead, the limited testimony regarding
methamphetamine cooks other than Movant served no purpose other than providing background
information and context to the evidence presented Movant’s conspiracies. See Byers, 603 F.3d at
506 (defendant convicted on firearm charges claimed prosecutorial misconduct on grounds that
the United States introduced evidence of hollow-tipped ammunition and firearm’s extended
magazine; the Eighth Circuit denied the claim, because the prosecution is permitted to show jury

16

See Section 2255 Motion, at 31 (stating that Movant raised this claim of prosecutorial
misconduct “In A Pro Se Brief without Assistance of Counsel”) [ECF No. 1]; Hodges, 594 F.3d
at 620 n.2 (Eighth Circuit affirming Movant’s conviction and writing: “We have considered the
arguments raised in Hodge’s pro se supplemental brief and recently filed motion and find them to
be without merit.”).
18

the background, circumstances and context of the crime charged). Thus, it was not improper for
the United States to establish context for the evidence presented against Movant.
In addition, Movant has not suffered any prejudice. The cumulative effect of the conduct
Movant challenges is null, given that overwhelming evidence was presented against Movant and
only fleeting references were made to other methamphetamine cooks. Moreover, in its closing
argument the United States directed the jury to focus its attention on Movant’s conduct, and not
the actions of any other person.17 Movant has not shown that the United States’ conduct has
deprived him of a fair trial, and he is entitled to no relief on this ground.
D.

Denial of Fair Trial

For his final theory of relief, Movant attacks his sentence by alleging that Venireperson
No. 35 (“No. 35") was biased and that her presence on the jury deprived him of his right to a fair
trial. To make this claim, Movant asserts that No. 35 stated she could not be impartial either
way, and that she may have a tendency to believe one of the United States’ potential witnesses
over any other witness due to her previous professional interactions with him. Movant is
referring to No. 35's voir dire testimony regarding Jeremy Decker, as discussed above in section
III.A.2. As an initial matter, it appears as though Movant did not raise this issue on direct appeal,
and thus that he is procedurally barred from raising it here § 2255 Motion because he provides
nothing to establish cause for the default and actual prejudice. See United States v. Moss, 252
F.3d 993, 1001 (8th Cir. 2001). However, out of an abundance of caution, the Court will also
analyze this claim on the merits.

17

See supra, note 8.
19

As previously established, Movant’s characterization of No. 35's voir dire testimony is
refuted by the record. In addition, Jeremy Decker was never called as a witness at Movant’s trial.
Movant’s claim on this ground is without merit.
IV.

RIGHT TO AN EVIDENTIARY HEARING
Under 28 U.S.C. § 2255(b), the Court must hold an evidentiary hearing to consider the

claims presented in a § 2255 motion, “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also
Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (“No hearing is necessary,
however, where the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.”) (internal quotations and citation omitted). The Court
finds that the Movant’s claims can be conclusively determined based upon the parties’ filings and
case record, and that the record affirmatively refutes Movant’s claims. Accordingly, Movant is
not entitled to an evidentiary hearings on claims he has presented.
V.

CERTIFICATE OF APPEALABILITY
To be entitled to a certificate of appealability, Movant must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The United States Supreme has
interpreted this language to mean that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274,
282 (2004). This Court finds that Movant has failed to meet this standard. Therefore, the Court
will not issue a certificate of appealability as to any claims raised in Movant’s Motion.

20

VI.

CONCLUSION
As set forth herein, Movant’s claims are without merit and his is not entitled to relief

under 28 U.S.C. § 2255. Accordingly,
IT IS HEREBY ORDERED that Movant Bradley Hodge’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1] is
DENIED.
IT IS FURTHER ORDERED that Movant’s Motion for Leave to File a § 2255 Motion
that Exceeds 25 Pages [ECF No. 2] is GRANTED, and that his Motion for an Evidentiary
Hearing and the Appointment of Counsel [ECF No. 3] is DENIED.
IT IS FURTHER ORDERED that the Court shall not issue a Certificate of
Appealability as to any claim raised in Movant’s Motion.
Dated this 15th day of November, 2011.

____________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

21