Kornhardt v. United States of America

Filing 27

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that movant James K. Kornhardt's motions to supplement the record are GRANTED. (Docs. 21 and 25) IT IS FURTHER ORDERED that movant James K. Kornhardt's motion for evidentiary h earing is DENIED. (Doc. 26) IT IS FURTHER ORDERED that movant James K. Kornhardt's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is DENIED. IT IS FURTHER ORDERED that m ovant James K. Kornhardt has not made a substantialshowing of the denial of a constitutional right such that reasonable jurists would find the Courts assessment of the constitutional claims debatable, or that reasonable jurists would find it debatab le whether the Court was correct in its procedural rulings and, therefore, this Court will not issue a certificate of appealability on those claims. See Miller-El v. Cockrell, 537 U.S. 332, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). An appropriate judgment will accompany this Memorandum and Order.. Signed by District Judge Charles A. Shaw on 3/9/2016. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES K. KORNHARDT,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13-CV-214 CAS

MEMORANDUM AND ORDER
This matter is before the Court on federal prisoner James K. Kornhardt’s motion pursuant
to 28 U.S.C. § 2255 to vacate, set aside or correct sentence (“Motion to Vacate”).1 The government
has filed its response, and movant filed a traverse. This matter is fully briefed and ready for
decision. For the following reasons, movant’s motion is denied.
I. Factual Background
This case arises from a murder that took place in October 1992 of Danny Coleman. Karen
and Danny Coleman were married in January 1973. Mr. Coleman had a life insurance policy
through his employment, and a credit life insurance policy which, in the event of his death, would

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Also before the Court are movant’s two unopposed motions to supplement the record to
provide additional authority. The Court will grant these two motions. In addition, movant filed a
letter to the Clerk of Court, which the Court construes as a motion for an evidentiary hearing.
Movant’s motion for a hearing is generic, and he does not explain why a hearing is necessary in this
case, such as identifying disputed evidence in the record or an issue requiring a credibility
determination. The Court will deny movant’s motion for an evidentiary hearing. “A § 2255 motion
‘can be dismissed without a hearing if (1) the [movant]’s allegations, accepted as true, would not
entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than statements of fact.’”
Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (quoting Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995)).

pay off the mortgage on his home. Karen Coleman was the beneficiary on both life insurance
policies, the value of which exceeded $25,000.00.
Sometime around 1990, Karen Coleman told her long-time friend Michelle Nolan that she
wanted to kill her husband, Danny Coleman. Ms. Nolan directed Ms. Coleman to speak with her
husband Larry Nolan, who was a convicted criminal imprisoned in the state penitentiary. Karen
Coleman and Michelle Nolan visited Larry Nolan in prison. Mr. Nolan asked Ms. Coleman about
the amount of life insurance Mr. Coleman had, and he agreed to have Mr. Coleman killed in
exchange for part of the life insurance proceeds.
Movant was Mr. Nolan’s close friend and a fireman with the Mehlville Fire District in Saint
Louis County, Missouri. Mr. Nolan arranged for Ms. Coleman and movant to meet and discuss
killing Mr. Coleman. Ms. Coleman met movant in Forest Park, and she gave him $2,000. They
discussed the murder, and Ms. Coleman agreed to pay $15,000 to movant and an unspecified amount
to Mr. Nolan to kill her husband.
Larry Nolan also contacted a fellow prisoner, Mike Kempker, in order to obtain a silencer
to be used in the murder. Mr. Kempker told Mr. Nolan that he could have one made for $1,000, to
which Mr. Nolan agreed. Mike Kempker then contacted his father, Alfred Kempker, who agreed to
handle the transaction outside the penitentiary. An acquaintance of the Kempkers, Ricky Farris,
agreed to make the silencer for $200. The other $800 would go to Mike Kempker. Movant met Al
Kemper outside the penitentiary to give him his gun so that he could have it fitted with a silencer.
In the summer of 1992, after Ricky Ferris made the silencer and fitted it to movant’s gun, Al
Kempker again met movant at the prison parking lot and delivered the gun and silencer to him in
exchange for$1,000.

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Movant enlisted the help of his long-time friend Steven Mueller to help kill Mr. Coleman.
Movant told Mr. Mueller that he would receive some money for helping with the murder. On
October 22, 1992, movant, Mr. Mueller, and another individual, “Dozer,” beat Mr. Coleman to death
in Michelle Nolan’s brother’s house in south Saint Louis City. Danny Coleman’s body was
transported to a field in Franklin County, Missouri, and his body was ultimately found in a truck that
had been set on fire.
The autopsy showed that Mr. Coleman had been beaten to death. Also, portions of the body
were missing, including a large part of his chest and skull. The investigator on the scene performed
a search of the area, and an opened but lightly used box of kitchen matches was found near the truck.
Fingerprints were found on the cellophane wrapper of the matchbox. At the time, the police were
unable to match the fingerprints to anyone. The police investigation into Mr. Coleman’s death
eventually went cold.
After Coleman’s death, Karen Coleman received approximately $150,000 in life insurance
proceeds. The first payment she received was on October 6, 1993, and her final payment was
received on July 15, 1997. On Larry Nolan’s advice, Karen Coleman withdrew sums of cash in
increments of $5,000 at a time, to be provided to movant as payment. Karen Coleman recalled
meeting movant in October 1994, in a K-Mart parking lot in south Saint Louis County to deliver the
money in small denominations.
In 1999, an inmate, Michael Kempker, disclosed information about Mr. Coleman’s death to
law enforcement. Mr. Kempker was friends with Mr. Nolan, who died in 1997. Mr. Kempker, who
was still in the penitentiary, told investigators that the people responsible for the murder were
movant, Karen Coleman, and Michelle Nolan. Mr. Kempker further told the police that he thought

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the murder took place in a house in south Saint Louis City, and that he had procured a silencer for
the murder. Based on the information from Mr. Kempker, law enforcement questioned movant.
They eventually matched his fingerprint to one that had been found on the box of matches. Movant
and Ms. Coleman were indicted for Mr. Coleman’s murder.
While movant was in jail, he called his wife, Dianne, and instructed her to have Mr. Mueller
at home on the evening of December 19, 2008. Movant called that evening and gave Mr. Mueller
instructions to dispose of evidence relating to the murder-for-hire of Danny Coleman. Movant had
Mr. Mueller remove a gun that was hidden in the basement fireplace. He also instructed Mr. Mueller
to go to the garage and dispose of a gun, silencer, and ammunition that movant had hidden there.
This telephone conversation was recorded and reviewed by law enforcement. After removing the
items in the garage, Mr. Mueller made a comment to Mrs. Kornhardt that he “couldn’t believe Jim
kept this shit all these years.” Mr. Mueller told Mrs. Kornhardt that he was going to throw the items
in the river.
After listening to the recording, an agent with the United States Bureau of Alcohol, Tobacco,
Firearms and Explosives questioned Mr. Mueller about the items he removed from the house and
garage and about Mr. Coleman’s death. Mr. Mueller admitted to the agent that he had disposed of
a silencer, gun, and ammunition. Mr. Mueller told the agent various stories about what had
happened on the day that Mr. Coleman was killed, including one account of the murder where three
men beat Mr. Coleman with bats and fighting sticks and then shot him three times. Mr. Mueller
showed the agent where Mr. Coleman was killed and walked him through the crime scene while
explaining what happened. Mr. Mueller admitted to the agent that he shot Mr. Coleman and had
received $1,000 to $1,200 for his role in the murder. Mr. Mueller ultimately testified to a grand jury

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that he had removed the silencer and gun from the house and garage after the phone conversation
with movant.
II. Procedural History
On December 11, 2008, a federal grand jury sitting in St. Louis returned an indictment
against Karen Coleman and movant charging them with conspiracy to commit murder-for-hire
(Count I) and murder-for-hire (Count II), both in violation of Title 18 U.S.C. § 1958. Attorneys
Scott Rosenblum and Adam Fein entered their appearances on behalf of movant. The Federal Public
Defenders Office was appointed to represent Karen Coleman.
On April 30, 2009, the grand jury returned a superseding indictment against Karen Coleman,
movant, and Steven Mueller. A second superseding indictment was returned by the grand jury on
June 25, 2009. In Count I, Karen Coleman, movant and Mr. Mueller were charged with conspiracy
to commit murder-for-hire. In Count II, all three were charged with murder-for-hire. Count III
charged movant with Obstruction of Justice, in violation of Title 18 U.S.C. § 1512(b)(2)(B). Count
IV charged movant with Mail Fraud in violation of Title 18 U.S.C. §§ 1341 and 1342. Finally,
Count V asserted forfeiture allegations against movant. Attorney Steven Stenger was appointed by
the Court to represent Mr. Mueller.
Counsel for defendants filed a number of pretrial motions. Movant’s counsel filed three
motions to dismiss the indictment based on arguments that the indictment does not state an offense,
it does not allege actual use of an interstate facility, and that it is barred by the statute of limitations.
Movant’s counsel also filed a motion to sever the defendants, to strike surplusage from the
indictment, for disclosure of favorable, exculpatory, and impeaching evidence, to produce notes
from law enforcement authorities, and to exclude statements from Karen Colemen and Steven

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Mueller. A hearing were held before the Honorable Magistrate Judge David D. Noce on August
28, 2009. Magistrate Judge Noce issued his Reports and Recommendations on December 30, 2009
and January 6, 2010. Movant’s counsel filed objections and a motion for reconsideration. The
undersigned overruled movant’s objections and sustained, adopted and incorporated the Reports and
Recommendations of the Magistrate Judge.
Karen Coleman entered a plea of guilty on June 3, 2010. On August 31, 2010, she was
sentenced to twenty years of incarceration in the Bureau of Prisons and five years of supervised
release. Movant and Mr. Mueller elected to proceed to trial. Prior to trial, movant’s counsel filed
several motions in limine, including motions to exclude fingerprint testimony, evidence of alleged
prior convictions or bad acts, jail house recordings, reference to lie detector tests, and reference to
organized crime. Movant’s counsel also filed a motion to reconsider the admission of statements
by Karen Coleman and Steven Mueller.
Movant and Steven Mueller were tried together on June 7, 2010. After a six-day jury trial,
movant and Mueller were convicted of murder-for-hire and conspiracy to commit murder-for-hire
(Counts I and II). The jury also found movant guilty on the obstruction of justice charge (Count III).
Movant appeared before the undersigned for sentencing on September 23, 2010. The Court
sentenced movant to a term of imprisonment of Life on Counts I and II, and a term of 240 months
on Count III, all terms to be served concurrently.
Movant appealed his conviction and sentence to the Eighth Circuit Court of Appeals. Movant
argued on appeal that his conviction was barred by the statute of limitations, that his motion for a
trial severance was improperly denied, and that his Six Amendment right to confrontation was
denied by the admission of Steven Mueller’s unsworn, extra-judicial statements. On November 11,

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2011, the Eighth Circuit affirmed the judgment of this Court, with the appellate court’s mandate
issuing on December 22, 2011. United States v. Kornhardt, 661 F.3d 338 (8th Cir. 2011).
On January 31, 2013, movant filed the instant motion for post-conviction relief pursuant to
28 U.S.C. § 2255. In the Motion to Vacate presently before the Court, movant asserts the following
grounds for relief:
Ground One: Movant was denied due process of law by being convicted of a nonexistent offense. See Doc. 1 at 4-15.
Ground Two: Movant was denied a fair trial and due process of law when
prosecutors failed to place a “key witness,” Michelle Nolan, on the stand. Id. at 1522.
Ground Three: Movant was denied his Sixth Amendment right to effective assistance
of counsel in that his trial counsel: (1) failed to object to numerous incidents of
hearsay testimony; (2) did not protest the absence of clearly available corroborative
proof, such as telephone records, records of prison visits, back statements; (3) failed
to present an alibi defense; (4) failed to present evidence to the jury of movant’s
good character and reputation in the community; (5) did not prepare movant to testify
on his own behalf at trial; (6) failed to employ a fingerprint expert; (7) did not object
to testimony concerning application for life insurance proceeds; (8) failed to properly
address and “educate” the Court on the element required for conviction under 18
U.S.C. § 1958; (9) failed to subpoena bank officials to testify regarding Ms.
Coleman’s checking account; (10) did not develop defense strategy that others, such
as, the Hells Angels, were culpable for Mr. Coleman’s death; (11) failed to introduce
evidence gathered by law enforcement indicating someone other than movant was
responsible for Mr. Coleman’s death; (12) failed to subpoena the employer of Joe
Briskey; (13) failed to subpoena witnesses who would have shown that Mr. Coleman
told them his plans for the evening he was murdered; (14) failed to subpoena the son
of Danny Coleman; (15) failed to subpoena the Missouri Department of Corrections
(“MDOC”) for visitors logs, (16) failed to subpoena MDOC for deposits to inmate
accounts; (17) failed to subpoena Ms. Coleman’s son and his girlfriend regarding
funds; (18) failed to move to exclude movant’s recorded telephone calls from jail;
(19) failed to include portions of telephone conversations that movant’s wife wanted
guns out of the house; (20) failed to impeach Ms. Coleman with telephone records
and jail visitation logs; (21) failed to impeach Ms. Coleman and Mr. Briskey about
their memories; (22) failed to impeach agents and officers to demonstrate that they
had coached Ms. Coleman, Mr. Briskey, and Mr. Kempker; (23) failed to seek
dismissal of the indictment because the agents did not make recordings or notes of
their interviews; (24) failed to seek the exclusion of Ms. Coleman’s testimony on the
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basis that it was not reliable or credible; (25) failed to seek the exclusion of Mr.
Mueller’s confession; (26) did not request a jury instruction informing jurors that
they could not base guilt on movant’s failure to establish an alibi; (27) failed to
demonstrate to the jury the “total absence” of any communication between Ms.
Coleman and movant; (28) failed to move for dismissal based on statute of
limitations; (29) did not challenge the admissibility of expert testimony regarding the
fingerprint evidence; (30) failed to object to or request a mistrial when the
prosecutors argued in closing argument that Mr. Coleman was killed due to a bullet
wound; (31) did not seek jury instruction regarding statute of limitations; (32) did not
challenge the validity of the 2008 indictment; (33) did not engage in a plea
bargaining session with federal prosecutors; (34) did not demand that there be a
hearing to determine the existence of law enforcement notes; and (35) failed to object
to the prosecutor’s closing argument when the prosecutor directed the jurors’
attention to the confession and extra-judicial statements made by Steven Mueller.
Id. at 22-39.
Ground Four: Movant was denied his Sixth Amendment right to effective assistance
of counsel in that his appellate counsel should have raised the following issues on
appeal: (1) fingerprint testimony was incompetent; (2) movant was denied a speedy
trial; (3) the indictment failed to allege an offense; (4) the evidence did not support
a conviction for mail fraud and/or murder-for-hire; and (5) movant was denied a fair
trial when his co-defendant’s confession was introduced. Movant also alleges that
his appellant counsel was ineffective for failing to seek a petition for rehearing due
to the appellate court’s erroneous conclusion that movant’s “Obstruction of Justice”
charge was based on a telephone conversation with Steven Mueller. Id. at 41-2.
Ground Five: Movant was denied due process of law because the evidence was
insufficient to support the guilty verdict on the obstruction of justice count.
Ground Six: Movant was denied a fundamentally fair trial when the Court allowed
jurors to be exposed to unsworn, extra-judicial statement by movant’s co-defendant,
Steven Mueller. Id. at 44.

III. Legal Standard
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was
imposed in violation of the Constitution or law of the United States, that the court lacked jurisdiction
to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the
sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To warrant relief under § 2255,

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the errors of which movant complains must amount to a fundamental miscarriage of justice. Davis
v. United States, 417 U.S. 333 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). The
Supreme Court has stated that “a collateral challenge may not do service for an appeal.” United
States v. Frady, 456 U.S. 152, 165 (1982).
IV. Discussion
A.

Ground One - Conviction of “Non-Existent Offense”

For his First Ground for relief, movant argues that he was denied due process of law because
he was convicted of a “non-existent offense.” In his motion, movant acknowledges that he was
convicted under 18 U.S.C. § 1958, use of interstate commerce facilities in the commission of
murder-for-hire, but he believes that the circumstances of his case are such that he should not have
been convicted of that offense.2 Movant argues that government could not come up with any other

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(a) Whoever travels in or causes another (including the intended victim) to travel in
interstate or foreign commerce, or uses or causes another (including the intended victim) to use the
mail or any facility of interstate or foreign commerce, with intent that a murder be committed in
violation of the laws of any State or the United States as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to
do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if
personal injury results, shall be fined under this title or imprisoned for not more than twenty years,
or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not
more than $250,000, or both.
(b) As used in this section and section 1959—
(1) “anything of pecuniary value” means anything of value in the form of money, a
negotiable instrument, a commercial interest, or anything else the primary significance of which is
economic advantage;
(2) “facility of interstate or foreign commerce” includes means of transportation and
communication; and
(3) “State” includes a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States. 18 U.S.C. § 1958 (2004).
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charge, so it “was forced to resort to ‘mail fraud’ as a basis for establishing federal jurisdiction….”
under the statute. Doc. 1 at 4-5. But, he contends, the government’s theory of mail fraud fails for
a number of reasons.
First, movant argues that there was no admissible evidence that life insurance played a role
in the murder of Mr. Coleman, and the government failed to establish any connection between the
murder and any financial incentive. He points to the fact that Ms. Coleman testified that the reason
she wanted her husband dead, was so she could be free from the marriage, and the death of Mr.
Coleman was financially disastrous for Ms. Coleman. Thus, according to movant, there could be
no mail fraud because there was no financial incentive for the murder. “The collection of life
insurance proceeds by Karen Coleman merely facilitated the murder by helping to pay for [Mr.
Coleman]’s killing.” Id. at 9.
Second, movant argues that he was improperly convicted of this crime because a “sensible
reading of [18 U.S.C. § 1958] leads to a conclusion that the ‘mail fraud’ must precede the murder.”
Id. at 6. According to movant, it is “patent that the death must result from the fraudulent use of the
mail, and not the reverse…. It is the latter that occurred in this homicide, and not the former.
Therefore, no violation was chargeable.” Id. Movant argues that the use of interstate facilities,
including the mail, must occur prior to the actual murder. Id. at 7.
Third, movant asserts that the prosecutors presented no proof that any of the life insurance
proceeds were used to pay movant to kill Danny Coleman, or that the “perpetrator, or participants”
knew that Ms. Coleman intended to pay the “fee” from life insurance proceeds. Id. at 10. Karen
Coleman received the life insurance proceeds about one year after Danny Coleman’s death. She did
not pay movant until a year after that. Karen Coleman testified that she spent the life insurance

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proceeds on numerous things. As a result, “if she did pay a hit-man $15,000.00, then it could not
be traced to Danny Coleman’s life insurance policy.” Id. at 11-12.
1. Procedural default
Plaintiff’s claim in Ground One is barred for procedural default. If a claim could have been
raised on direct appeal but was not, it cannot be raised in a § 2255 motion unless the movant can
show both (1) “cause” that excuses the default, and (2) “actual prejudice” resulting from the errors
of which he complains. See Frady, 456 U.S. at 168; Matthews v. United States, 114 F.3d 112, 113
(8th Cir. 1997), cert. denied, 522 U.S. 1064 (1998). If a movant is unable to show “cause” and
“actual prejudice,” he must make a “substantial claim that constitutional error has caused the
conviction of an innocent person . . . .” Schlup v. Delo, 513 U.S. 298, 321 (1995). A claim of actual
innocence must be based on “new evidence,” and must convince the Court that “it is more likely
than not that no reasonable juror would have found [movant] guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 327. See also Embrey v. Hershberger, 131 F.3d 739, 741 (8th Cir. 1997)
(applying Schlup actual innocence standard in the context of a § 2255 motion), cert. denied, 525
U.S. 828 (1998).
“Cause” under the cause and prejudice test “must be something external to the [movant],
something that cannot fairly be attributed to him,” for example, a showing that the factual or legal
basis for a claim was not reasonably available, or that some interference by officials made
compliance with the procedural rule impracticable. Stanley v. Lockhart, 941 F.2d 707, 709 (8th Cir.
1991) (citing Coleman v. Thompson, 501 U.S. 722 (1991)); see also Greer v. Minnesota, 493 F.3d
952, 957-58 (8th Cir. 2007). Ineffective assistance of counsel in failing to raise a claim on appeal
can amount to cause to lift a procedural bar. Becht v. United States, 403 F.3d 541, 545 (8th Cir.

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2005). The deficient performance, however, must have been so ineffective as to violate the
Constitution. Murray v. Carrier, 477 U.S. 478, 488-89 (1986).
Movant does not make a claim of actual innocence and he has not attempted to show cause
for his failure to raise his claim in Ground One, therefore, is it procedurally barred.
2.

On the merits

Even if movant’s Ground One were not procedurally barred, the claim fails on merits. The
statutory elements of the Count I conspiracy are: (1) an agreement (2) involving the use of the mail
or any facility of interstate or foreign commerce (3) with the intent that a murder be committed (4)
with the murder being consideration for the receipt of or the promise of something of pecuniary
value. 18 U.S.C. § 1958(a). The statutory elements of Count II are essentially the same: (1) a person
used the mail or any facility of interstate or foreign commerce (2) with the intent that a murder be
committed (3) with the murder being consideration for the receipt of promise of something of
pecuniary value. Id. In other words, to convict a defendant under § 1958, the government must
show that one party agreed to commit a murder in exchange for another party’s provision or future
promise of payment of anything of pecuniary value, and that the conspiracy utilized a facility in
interstate commerce or the mail. United States v. Hyles, 521 F.3d 946, 954-56 (8th Cir. 2008).
Under the statute, there is no requirement that the sole purpose of the murder be to obtain
financial gain, but rather, the statute requires that pecuniary gain be given in consideration for the
murder. Here, there was testimony that movant, Mr. Nolan and Mr. Kempker received payment for
the murder. Movant’s argument that there was no admissible evidence that life insurance “played
a role” in the murder of Mr. Coleman is without merit.

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Second, movant’s argument that under the statute the mail fraud must precede the murder
is incorrect. See United States v. Basile, 109 F.3d 1304, 1312-13 (8th Cir. 1997) (finding sufficient
to convict a defendant under § 1958 where defendant used the mail to collect proceeds from victim’s
life insurance to pay for the murder for hire). Moreover, in this case mailings in the furtherance of
the murder-for-hire scheme occurred both before and after the murder. Prior to the murder, Ms.
Coleman mailed letters to Larry Nolan in which she discussed the scheme. In addition, Karen
Coleman testified that it was understood the proceeds from the life insurance policies would be used
to pay Larry Nolan and others for their part in killing Danny Coleman. Karen Coleman could not
apply for those life insurance proceeds until after the death of Danny Coleman, and the payments
from the insurance proceeds continued until 1997. Movant’s argument that the use of interstate
facilities must occur prior to the murder is not grounded in law or fact.
Third, movant’s argument that there was no proof that any of the life insurance proceeds
were used to pay movant to kill Danny Coleman is not supported by the evidence. Karen Coleman
testified that after she received the life insurance proceeds, she slowly withdrew the money from her
account so that it would not be noticeable and, after she had collected enough, she made payment
to movant.
Movant’s claim in Ground One is procedurally barred. But even if the Court were to address
the claim on the merits, movant is not entitled to relief, because it is not legally or factually sound.

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B.

Ground Two - Failure to Call “Key Witness”

Movant asserts in Ground Two that he is entitled to post-conviction relief because he was
denied a fair trial and due process of the law when the government failed to call Michelle Nolan as
a witness during the trial. Movant contends that Michelle Nolan was a key player in the scheme to
murder Karen Coleman’s husband. And her testimony would have been particularly crucial with
regard to the key to Joe Briskey’s house, where the murder took place:
Other than Steve Mueller’s hearsay, the only person in possession of
knowledge as to whom [Michelle Nolan] delivered the key to Joe
Briskey’s house, was Michelle Nolan. This missing witness was
critical to not only solving the mystery as to the missing key, but, in
addition, Michelle Nolan possessed crucial information pertaining to
other matters which went to the elements of the charged offense.
Doc. 1 at 17. He points out that there was no testimony as to whom Ms. Nolan gave the key, and
the prosecutors expected the jury to speculate that she gave the key to movant or Steven Mueller.
Movant argues that he had no obligation to call Michelle Nolan as a witness, but that the
burden was on the government to call her because she was a “crucial witness.” Movant asserts that
it was misconduct not to. Id. at 18. Movant also notes that Michelle Nolan was given immunity.
“Consequently, no rational justification could have existed for not placing her testimony before the
jury.” Id. at 18-19. Movant also argues that the government’s failure to call Michelle Nolan entitled
movant to a jury instruction authorizing the jurors to draw an unfavorable inference from such
failure, that is, that the movant failure to call Michelle Nolan constituted an admission that her
testimony would have been unfavorable to the government’s theory of how the murder occurred.
Id. at 19.

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Movant’s claim in Ground Two fails 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. Second,
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. See also Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th Cir.
2002) (to receive habeas relief, a petitioner “must show that there is a reasonable probability that
the error complained of affected the outcome of the trial-i.e., that absent the alleged impropriety the
verdict probably would have been different.”). When determining whether a party has been denied
a fair trial, a court should consider 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.
Graves, 614 F.3d at 507-08.
Movant’s claim in Ground Two fails because movant cannot establish that the prosecutor’s
behavior was improper. There is absolutely no requirement, constitutional or otherwise, that
compels a prosecutor to call a witness in its case-in-chief, and movant has cited no authority
otherwise. The government did not elect to call Michelle Nolan as a witness, which it was its
prerogative to do. Furthermore, movant chose not to call Ms. Nolan as a witness, which he could
have done. But also, there is nothing before the Court as to what Ms. Nolan’s testimony would have
been had she testified at trial. Movant supposes that she would been able to testify as to whom she
gave the key, whether Ms. Coleman paid for the murder out of insurance proceeds, whether her
brother was out of town on the day of the murder, and whether she cleaned up after the murder.

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Movant claims Ms. Nolan would have provided relevant testimony, but there is nothing to indicate
that the testimony would have been favorable to movant.
Movant has not established that it was prosecutorial misconduct not to call Michelle Nolan
as a witness. The government was under no obligation to do so, and in any event, there is nothing
before the Court that would indicate that the absence of her testimony caused movant prejudice or
that the outcome of the trial would have been different. Movant’s claim in Ground Two is without
merit.
C.

Ground Three - Ineffective Assistance of Trial Counsel

In Ground Three, movant raises thirty-five different grounds upon which he contends he
received ineffective assistance of counsel that rises to the level of a constitutional violation. To
prevail on an ineffective assistance of trial counsel claim, movant must show that his counsel’s
performance was deficient and that he was prejudiced by the deficient performance.

See

McReynolds v. Kemna, 208 F.3d 721, 722 (8th Cir. 2000) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Counsel’s performance was deficient if it fell outside the wide range of
professionally competent assistance.” McReynolds, 208 F.3d at 723 (internal quotations and
citations omitted). Prejudice is shown if there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. To establish ineffective assistance of counsel, under the first prong a movant must
demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id.
When evaluating counsel’s performance, “[a] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Id. at 689. Even if there

16

is sufficient proof that the first prong exits, relief is warranted only if a movant also establishes that
counsel’s deficient performance prejudiced the case. Id. at 697. A court may address the two
prongs in any order, and if the movant fails to make a sufficient showing of one prong, the court
need not address the other prong. Strickland, 466 U.S. at 697; Fields v. United States, 201 F.3d
1025, 1027 (8th Cir. 2000).
1.

Failure to Object to Hearsay Testimony

As his first claim of ineffective assistance of counsel in Ground Two movant asserts that his
trial counsel was ineffective for failing to object “to the numerous instances of hearsay testimony
which came in, during the jury trial, and relied upon to connect him to the murder plot, and to
establish federal jurisdiction.” Doc. 1 at 22. Movant does not specify which instances of hearsay
testimony he is referring. Conclusory allegations, such as movant’s, are insufficient to support a
claim for ineffective assistance of counsel. Bryson v. United States, 268 F.3d 560, 562 (8th Cir.
2001) (conclusory allegations are insufficient to establish ineffective assistance); Estes v. United
States, 883 F.2d 645, 647 (8th Cir. 1989) (conclusory allegation was insufficient to rebut strong
presumption of counsel’s competence).
In its response memorandum, the government supposes that movant is complaining about
the testimony of Michael Kempker and Karen Coleman, both of whom testified as to various things
Larry Nolan told them. Movant may also be referring to the statements made by Steven Mueller.
First, movant’s counsel did object to this testimony. A week prior to trial, movant’s counsel
filed a Motion in Limine to Exclude Hearsay Statements. United States v. Kornhardt, 4:08-CR-701
CAS, Doc. 236. In that motion, defense counsel specifically moved to exclude “[a]ny and all
statements by Larry Nolan, a deceased former inmate of the Missouri Department of Corrections,

17

including any statements to any individuals at or around the time of his death purporting to confess
his involvement in the murder of Danny Coleman.” Id. at 1. In that same motion, counsel moved
to exclude any and all statements of “any witness who will not be testifying and subject to
cross-examination” and any and all statements of “Steve Mueller implicating Defendant Kornhardt
in any criminal activity.” Id. at 1-2.
In his Memorandum in Support, movant’s counsel argued:
Larry Nolan’s statements pose a particular difficulty because he is alleged to have
made several classes of potential hearsay statements during this investigation: 1)
confessions allegedly made because he wanted to clear his conscience about the
murder and because he was angry that he had not been paid in full for his
involvement in the conspiracy; 2) gratuitous statements of involvement in the
conspiracy, not in furtherance of the conspiracy; 3) co-conspirator’s statements; and
4) statements that are part of the alleged offense itself.
Id. at 2. The government opposed movant’s motion, and the undersigned held a pre-trial hearing
on June 3, 2010, at which time the parties were giving an opportunity to argue the motion.
Furthermore, on the first day of trial, before voir dire, the Court heard additional argument on
movant’s motion to exclude this hearsay testimony. The Court ruled the testimony admissible at
trial as statements of co-conspirators. Tr. Trans. Vol. 1 at 3-7. But movant’s counsel continued to
object to the testimony throughout the course of the trial.
In light of the fact that his counsel did object to the testimony, movant neither establish his
counsel’s performance was deficient, nor can he show prejudice. But even assuming counsel failed
to make objections to the testimony, movant would be unable to establish prejudice because his
counsel would not have prevailed on such an objection. Under Federal Rule of Evidence 801, “a
statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is
not hearsay. Fed. R. Evid. 801(d)(2)(E); United States v. Spotted Elk, 548 F.3d 641, 660-661 (8th

18

Cir. 2008). Plaintiff’s claim of ineffective assistance of counsel based on an alleged failure to object
to supposed hearsay testimony is without merit.
2.

Failure to Protest the Absence of Corroborative Proof

Movant asserts in Ground Two that his attorneys were ineffective because they “did not
protest the absence of clearly available corroborative proof, if it existed, which should have been
presented by the prosecutors to support the testimony of government witnesses pertaining to
telephone calls having been actually made; to prison visits; to bank account withdrawals; and to
correspondence.” Doc. 1 at 22. Again, movant’s claim is conclusory and it will be dismissed on
this basis. Bryson, 268 F.3d at 562; Estes, 883 F.2d at 647. But even if the Court were to review
the claim on the merits, it would be dismissed because it is not supported by the record.
Movant is incorrect that his counsel failed to “protest” the lack of corroborating evidence.
The Court has reviewed the trial transcript, and there were a number of times that defense counsel
made the point that the testimony of government witnesses were not corroborated by documents.
For example, while cross-examining Michael Kempker, defense counsel established that there would
have been a visitors log kept by the prison. Tr. Trans. Vol. III-A at 7. Counsel established again
with Ms. Kempker at a later time that, with respect to the meetings to which he testified, there would
have been jail records documenting all these meetings, but documents with respect to these meeting
were not introduced because they could not be located. Id. at 40.
When defense counsel cross-examined Karen Coleman, he established that, although she
claimed to have mailed Larry Nolan numerous letters, she did not have one letter to corroborate her
testimony. Tr. Trans. Vol. III-B at 61. In addition, although Karen Coleman testified she had called
movant several times from her cell “bag” phone, she did not have one document from the phone

19

company to show these phones calls were actually made. Id. at 62. Karen Coleman testified that
she wrote movant various phone numbers down in the back of one of her check registers. Defense
counsel established that she kept every one of her check registers except for the one which would
have corroborated her testimony. Id. at 88.
During defendant counsel’s cross-examination of Agent Tad Heitzler, defense counsel
established, among other things, that: (1) Agent Heitzler had no actual letters between Karen
Coleman and Larry Nolan regarding her agreement to have Danny Coleman killed; (2) Agent
Heitzler was not able to find any cell phone records that corroborated Karen Coleman’s contention
that she called movant; (3) Karen Coleman was never able to locate the purported audiotape of her
meeting with movant; and (4) Agent Heitzler had no bank records from movant to show he had
deposited any large sums of money into his bank accounts. Tr. Tran. Vol. IV at 183-6.
In his closing argument, movant’s counsel emphasized that there was no corroborating proof.
He stated that although Michael Kempker talked about visitation records, there were no visitation
records corroborating the meetings about which he had testified. Tr. Trans. Vol. VI, p. 81-82. With
respect to Karen Coleman’s testimony, movant’s counsel argued:
And nothing interestingly enough can be corroborated, not one word of what she
said. She talks about what? She talks about all these letters. Letters on top of letters
on top of letters talking about the doctor. Conveniently burned. She talks about,
well, I jotted down the numbers on the back of potentially a check register. Not
there. She talked about this story where she and Michelle Nolan heard that a tape
recording of her implicating her was buried over on Tennessee. Led the detectives
to it. Not there. Talked about a cell phone. Not there. Visiting records. Nothing
is corroborated.
Id. at 92.
Contrary to movant’s assertion, the record demonstrates that movant’s counsel did “protest”
the lack of corroborating evidence during his trial. Defense counsel’s performance was not
20

constitutionally deficient in this regard, and movant cannot establish prejudice. This claim is
without merit.
3.

Failure to Provide Alibi Defense

Movant asserts in Ground Two that his attorneys were ineffective in that they “did not
conduct themselves in accordance with the norms of their profession when no effort was made to
present an alibi defense for James Kornhardt.” Doc. 1 at 8. Movant has presented no facts to
support this claim and, therefore, it will be denied.
In order to evaluate whether defense counsel was deficient in failing to present alibi evidence
at trial, movant must establish that he had an alibi, and what the evidence would be in support of that
alibi. Movant fails to inform this Court what his alibi was, or point to any evidence or facts in
support of his alibi defense. In light of this, it is impossible to assess the validity of movant’s claim.
The burden is upon movant in a § 2255 proceeding to establish that he is entitled to relief.
Strickland, 466 U.S. at 687-88 (the burden is on the prisoner to prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable). Movant fails to carry his burden on this
claim. Mere conclusory allegations are insufficient to support a claim for ineffective assistance of
counsel. Bryson, 268 F.3d at 562; Estes, 883 F.2d at 647. Because movant failed to reveal his
purported alibi, movant has not met his burden and shown that “there is a reasonable probability
that, had his trial counsel pursued the alibi defense, he would have been acquitted.” Lawrence v.
Armontrout, 961 F.2d 113, 115 (8th Cir. 1992). See also Williams v. United States, 452 F.3d 1009,
1014 (8th Cir. 2006). This claim is denied.

21

4.

Good Character and Reputation

Next, movant argues in Ground Three that his trial counsel was ineffective for failing “to
introduce evidence of the [movant]’s good character and reputation in the community, which created
reasonable doubt.” Doc. 1 at 22-23. In his motion, movant does not explain what evidence there
was of his good character and reputation in the community that should have been introduced.
Movant does attach three letters to his motion. One, which is dated October 17, 2012, is a letter
from his former neighbor, Maxine M. Nevels. The letter from Ms. Nevels describes movant as a
parent. The second letter, which is undated, is from his sister-in-law, Tina M. Huskey. The letter
from Ms. Huskey describes the close relationship she has had with movant since 1986. She
describes family holidays and thoughtful deeds movant has done, such as buying her a set of tires
when she could not afford them. The third letter, which is dated November 15, 2012, is from
movant’s former work colleague, Dave Andrews. The letter from Mr. Andrews describes movant’s
personal contributions at work, such as working longer shifts to help another firefighter who had
suffered an off duty injury.
“The decision not to call a witness is a ‘virtually unchallengeable’ decision of trial strategy.”
United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (internal marks and cited cases omitted).
See also Bowman v. Gammon, 85 F.3d 1339, 1345 (8th Cir. 1996) (noting that under Strickland,
“decisions related to trial strategy are virtually unchallengeable”). “To establish prejudice from
counsel’s failure to investigate a potential witness, a petitioner must show that the witness would
have testified and that their testimony ‘would have probably changed the outcome of the
[proceeding].’” Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir. 1996) (quoting Stewart v. Nix, 31
F.3d 741, 744 (8th Cir. 1994)).

22

As an initial matter, the Court finds movant has not established that Ms. Nevels, Ms. Huskey
and Mr. Andrews were available and willing to testify on movant’s behalf at the time of trial. The
letters are dated in 2012, if at all, and there is nothing in the letters regarding the individuals’
willingness and availability to testify in June 2010. Also, movant does not state that he brought
these potential witnesses to the attention of his counsel.
But even if the Court were to find that counsel’s failure to call these three individuals as
witnesses was constitutionally deficient performance, movant cannot establish prejudice because
he cannot show that the outcome of the trial would have been different had they testified. Hadley,
97 F.3d at 1135. First, had his counsel introduced evidence of movant’s good character, the
government would have been free to challenge that evidence with specific evidence of other
incidents of movant’s misconduct. Fed. R .Evid. 404(a); United States v. Grady, 665 F.2d 831,
834-35 (8th Cir. 1981). Second, character witnesses would not have provided evidence to disprove
the strong evidence of movant’s guilt. Thus, movant is unable to show that the outcome of his trial
proceedings would have been different had his counsel called these witnesses to testify. See
Girtman v. Lockhart, 942 F.2d 468, 472 (8th Cir. 1991); United States v. Pungitore, 15 F. Supp. 2d
705, 729 (E.D.Pa. 1998) (in view of the evidence against the defendant, trial counsel’s failure to call
character witnesses would have scarcely made a difference); Cohen v. United States, 996 F. Supp.
110, 114 (D. Mass. 1998) (trial counsel's failure to interview potential character witnesses was not
ineffective assistance where counsel was “faced with an abundance of physical and testimonial
evidence that clearly implicated the defendant in the charged offense.”). This claim is without merit.

23

5.

Failure to Prepare Movant to Testify

Movant also claims in Ground Three that he received ineffective assistance of trial counsel
because his attorneys did not prepare him to testify in his own behalf. Doc. 1 at 23. Movant,
however, did not testify at trial. Movant, presumably, does not object deficiencies in preparing him
to testify, but rather to the fact that he was not called as a witness.
During the trial, defense counsel asked the Court to make a record regarding movant’s
decision not to testify. Mr. Rosenblum stated:
We are now in our case and this case has been going on for quite a while. During the
course of that time I brought up the subject of whether or not Mr. Kornhardt wants
to testify when he has an opportunity in this case. I’ve explained to Mr. Kornhardt
… that it’s absolutely his decision. And the one thing he has an absolute right to is
to stand trial, and in the event he elects to go to trial, he has an absolute right to
testify and nobody, including me, can prevent that.
I have discussed with him what my recommendations are and my recommendation
in this case, given that I think it would present the opportunity for the government
potentially to call rebuttal witnesses, potentially to cross-examine him with other
tapes that they have access to with respect to phone calls made from jail. There’s
also the possibility that other misconduct on behalf of Mr. Kornhardt could be raised
if he would elect to testify. And given all those considerations, it is my
recommendation and merely a recommendation that he elects to stand on his Fifth
Amendment rights and not to testify.

Tr. Vol. V at 65-66. Movant then informed the Court that he made the decision not to testify. Id.
at 66. During this exchange, movant did not express to the Court that he wished to testify, but he
was not properly prepared. Movant definitely stated that he did not wish to testify.
But even if movant would have testified had he been properly prepared, movant cannot meet
the “prejudice” prong of the Strickland analysis. He cannot establish that the outcome of his trial
would have been different had he testified. In his motion and supporting documents, movant has
not shown what his testimony would have been had he testified. Without this information, it is
24

impossible for the Court to assess the impact his testimony would have had on the verdict. What
is more, had movant testified, he would have been subject to cross-examination by the government.
In assessing the effect movant’s proposed testimony would have had on the verdict, the Court must
consider not just direct examination, but also the effect of cross-examination. During trial, defense
counsel represented to the Court that it was his recommendation that movant not testify because the
government had ample material for cross-examination. Movant has not established the “prejudice”
prong of his ineffective assistance of counsel claim based on supposed deficiencies in preparing him
to testify.
6.

Fingerprint Expert

Movant also claims in Ground Three that his trial counsel was ineffective for failing to use
a fingerprint expert to counter the fingerprint evidence offered by the government’s witness. After
reviewing the claim, the Court finds it is without merit.
Movant cannot show that his counsel’s performance was constitutionally defective for failing
to call a fingerprint expert. Prior to trial, defense counsel did employ a fingerprint expert to examine
the fingerprint. The defense hired Donald Brian, who was the supervisor of the St. Louis County
Police Department latent fingerprint unit.

In fact, Mr. Brian trained Donna Knight, the

government’s witness. Mr. Brian reviewed the fingerprint on the box of matches and he concluded
that the print belonged to movant. It would not have benefitted movant’s case for his counsel to
have called Mr. Brian to testify.
Moreover, movant’s counsel did object to the fingerprint evidence. He filed a 32-page
motion in limine seeking to exclude latent fingerprint evidence at trial. United States v. Kornhardt,
4:08-CR-701 CAS, Doc. 231. In the motion, movant’s counsel argued, based on a 2009 National

25

Research Council’s report, that the science behind latent fingerprint analysis was flawed and did not
meet the standards of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). The
motion was well researched and very thorough. The government opposed the motion, and the
parties argued the motion at a pre-trail hearing, but the motion in limine was denied.
Furthermore, movant’s counsel effectively cross-examined the government’s fingerprint
expert at trial. He was able to establish that there were two prints on the box of matches, one of
which was unidentifiable. The government’s fingerprint expert testified that she could not determine
which print was placed on the box last, or when either print was placed on the matches. Tr. Trans.
Vol. III-A, at 100-105. That said, the fingerprint evidence in this case was strong. The
government’s expert, Donna Knight, had thirty years of latent print experience and had reviewed
thousands of prints a year. Id. 81-86. She testified that if one can make eight points of comparison
between two prints, then one can conclude the two prints belong to the same person. Id. In this case,
the fingerprint left on the matches had 18 points of comparison with movant’s thumb print, more
than double the amount necessary to establish a complete unity of relationship. Id.
Movant cannot show his counsel’s performance was defective with regard to the fingerprint
evidence. What is more, movant has not established prejudice. Movant has not shown that another
latent print examiner would find that the print on the box of matches does not match movant’s thumb
print. In other words, movant cannot establish that the outcome of his criminal proceedings would
have been different had his counsel called a different fingerprint expert as a witness at trial.

26

7.

Life Insurance Proceeds

In Ground Three movant also faults his counsel for failing to “object to testimony
concerning applications for life insurance proceeds, or, the procedures employed to collect on the
same.” Doc. 1 at 23. The Court has carefully reviewed movant’s Motion to Vacate and finds that
movant does not adequately explain the basis of this claim. As state above, conclusory allegations
without adequate explanation and support are insufficient to support a claim for ineffective
assistance of counsel. Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001) (conclusory
allegations are insufficient to establish ineffective assistance); Estes v. United States, 883 F.2d 645,
647 (8th Cir. 1989) (conclusory allegation was insufficient to rebut strong presumption of counsel’s
competence).
At trial, testimony regarding life insurance proceeds came from Karen Coleman. Ms.
Coleman testified that she discussed life insurance with Larry Nolan when she was discussing
having her husband killed. According to Ms. Coleman, Mr. Nolan wanted to know how much life
insurance she had. Ms. Coleman testified that the life insurance proceeds were to be used to pay Mr.
Nolan’s lawyer and to pay movant $15,000. Tr. Trans. Vol. III-B, p. 8-9. She further testified that
after her husband was killed, she took steps to collect the insurance, and at Mr. Nolan’s instruction,
she made incremental withdrawals from the proceeds to pay movant. Id. at 16. After her testimony,
Government’s Exhibit ST-2 was read to the jury:
The United States of America and defendants James K. Kornhardt and Steven A.
Mueller agree and accept the following facts in this case to be proven. On or about
February 4, 1993, Multiplex Company, Inc. made payment to Karen K. Coleman via
check number 82513 in the amount of $11,039.94. On or about June 22,1993,
General American made payment to the registry of the Circuit Court of the City of
St. Louis via check number O535750 in the amount of $51,982. On or about October
6, 1993, attorney John L. Boeger made payment to Karen K. Coleman via check
number 3622 in the amount of $45,836.63. On or about May 19, 1997, Liberty Life
27

Insurance Company made payment to First Nationwide Mortgage Corporation via
check number 51O974O7 in the amount of $25,060.19. On or about July 14, 1997,
Liberty Life Insurance Company made payment to Karen K. Coleman via check
number 51105560 in the amount of $3,759.03. On or about July 15, 1997, First
Nationwide Mortgage Corporation made payment to Karen K. Coleman via check
number 857465357 in the amount of $10,762.33. Each of these payments was made
using the United States mail and/or a facility of interstate or foreign commerce.
Tr. Trans. Vol. IV, p. 4-5.
In his motion and supporting documents movant does not explain the grounds upon which
his counsel should have objected to this evidence. Movant also does not address the likelihood his
counsel would have succeeded had he made such an objection, or how movant was prejudiced. In
short, movant has not established constitutionally defective performance or prejudice with regard
to the admission of evidence related to the life insurance proceeds. The claim is without merit.
8.

Failure to Educate the Court

In Ground Three movant further claims that his counsel was ineffective for failing “to
properly address and educate the Court on the elements required for conviction under 18 U.S.C.
§ 1958, as it pertains to mail fraud in a murder-for-hire plot.” Doc. 1 at 23. Again, movant’s motion
is short on explanation, and will be denied as conclusory. Bryson, 268 F.3d at 562; Estes, 883 F.2d
at 647. But in any event, the record does not support movant’s claim.
First, movant cannot establish that his counsel’s performance was deficient in this regard.
Movant’s counsel filed several motions to dismiss the indictment. United States v. Kornhardt, 4:08CR-701 CAS, Docs. 86, 95, 96. In his first motion, movant’s counsel asserted that neither Count
I nor II of the indictment alleged an offense that involved the actual use of an interstate commerce
facility. Doc. 86. In his second motion, movant’s counsel argued that the indictment violated the
statute of limitations. Doc. 95. In the third motion to dismiss, movant’s counsel argued that as a

28

matter of logic the offense charged in Count I of the Superseding Indictment could only have
occurred prior to Danny Coleman’s death on October 22, 1992. At the time of Danny Coleman’s
death, however, and for the first four years of the conspiracy alleged in the indictment, 18 U.S.C.
§ 1958(a) did not prohibit conspiracy to commit murder for hire and, therefore, Count I failed to
state a claim. Doc. 96. It is clear from the record, that movant’s counsel had an understanding of
18 U.S.C. § 1958, and he made a number of arguments attempting to “educate” the court on the
elements required for conviction under the statute. In his motion and supporting documents movant
does not explain what more his counsel could have done.
Second, movant cannot establish prejudice. Movant has not explained to the Court how its
rulings would have been different had his counsel “properly addressed” and “educated” the Court
on the elements of 18 U.S.C. § 1958. Movant’s claim is without merit.
9.

Failure to Subpoena Bank Officials to Testify

In Ground Three movant also claims his trial counsel was ineffective because he “failed to
subpoena bank officials to testify concerning Karen Coleman’s checking account.” Doc. 1 at 23.
As with most of his claims, movant fails to substantiate this claim. Movant does not explain what
testimony a bank official would have offered regarding Karen Coleman’s checking account, and how
it would have changed the outcome of the trial. Without this information, the Court cannot evaluate
movant’s claim. Movant’s allegations are conclusory and insufficient to establish grounds for relief.
Bryson, 268 F.3d at 562; Estes, 883 F.2d at 647.
10.

Failure to Develop Alternative Theory as Defense Strategy

Movant next claims in Ground Three that his counsel was ineffective for failing to “develop
a defense strategy demonstrating that others, e.g., the ‘Hells Angels,’ were culpable for the death

29

of Danny Coleman.” Doc. 1 at 23. Movant’s claim fails because defense counsel did attempt to
establish at trial that others were culpable for the death of Danny Coleman, and movant does not
explain in his motion or supporting documents what more his counsel could have done.
In defense counsel’s opening statement, counsel laid the groundwork to establish that Joe
Briskey was Larry Nolan’s “go-to guy.” He stated “[Karen Coleman has been] involved for years
in the methamphetamine distribution at Larry Nolan’s behest, with his go-to men, the Hells Angels
and Joe Briskey, who the evidence will show at the time of Danny Coleman’s murder was the person
that had most access to Larry Nolan.” Tr. Trans. Vol. II, p. 41. During cross-examination of
Michael Kempker, counsel established that at the end of Larry Nolan’s life, the only person who was
there for him and consistently visiting him was Joe Briskey. Tr. Trans. Vol. IIII-A, p. 29. When
cross-examining Karen Coleman, counsel established that Joe Briskey was the person on the
“outside” who was very close to Larry Nolan. Tr. Trans. Vol. III-B, p. 104. Counsel also
established that Karen Coleman was involved with Nolan’s other “go-to men,” Carasis and Bruno,
who were members of the Hells Angels. Id. at 111-12. Counsel further attempted to established
that, out of all of Larry Nolan’s associates, Joe Briskey had the most contact with Larry Nolan
around the time and immediately after Danny Coleman’s death. Id. at 113.
Joe Briskey provided an alibi for the time of the murder, stating he was out of town from
October 21 to 23, 1992, on business for his company.

Tr. Trans. Vol. IV, p. 18. On

cross-examination, however, defense counsel established that the company Mr. Briskey worked for
in 1992 was still in business, and Mr. Briskey actually had no proof that he was out of the area at
the time of the murder. Id. at 69. During cross-examination of Agent Heistzler, movant’s counsel
established that at no point did the agent try to subpoena work records to show Mr. Briskey was

30

actually on a sales call outside the City of St. Louis on the day of the murder. Id. at 214. In
addition, while cross-examining Mr. Briskey, movant’s counsel established that the witness had
visited Larry Nolan at least 36 times in prison, and he considered himself to be close to Larry Nolan.
Tr. Trans. Vol. IV, p. 24-25.
In his closing argument, movant’s counsel argued that if Larry Nolan wanted someone to get
involved in a murder for hire, he would to go to his Hells Angels buddies, Tom Bruno and Art
Carasis, and Joe Briskey, who had the most contact with Larry Nolan at the time of Danny
Coleman’s death. Tr. Trans. Vol. VI, p. 83. More specifically, defense counsel argued:
And why is this guy [Joe Briskey] worried? Think about it. Closest person to Larry
Nolan at the time of Danny Coleman’s death. When he’s first talked to by agents,
he cannot account for whether or not he was in St. Louis. And with all their
investigation, with the business still in business there in Ladue, does anybody go
check the records to see if Joe Briskey was, in fact, in St. Louis?
Of course he’s got concerns. He does drugs with Karen Coleman and did drugs with
Larry Nolan. He sells drugs for Larry Nolan with his sister Michelle Nolan and with
Karen Coleman. And he’s involved in a conspiracy with methamphetamine with
Larry Nolan, Karen Coleman, and two Hells Angels, and he can’t account for his
time. You don’t think that guy’s got something to worry about.
Tr. Trans. Vol. VI, p. 95.
It is clear to the Court that movant’s counsel was attempting to establish that Joe Briskey,
with the assistance of Bruno and Carasis, was responsible for Coleman’s death, not movant. As
defense counsel did engage in the conduct movant claims he should have, movant cannot establish
that his counsel provided constitutionally infirm representation. Further, movant cannot establish
prejudice. He has not shown what other evidence or arguments his counsel should have made to
place blame on another person, and movant has not shown how the outcome of his trial would have
been different. The claim is without merit.

31

11.

Failure to Establish Someone Other than Movant was Responsible

Similar to the previous claim, movant also argues in Ground Three that his counsel was
ineffective for failing to “introduce evidence, gathered by various law enforcement
agencies/departments, that indicated someone other than the movant was responsible for the murder
of Danny Coleman.” Doc. 1 at 23. As the government points out, this is essentially a duplicate of
the previous claim of ineffective assistance of trial counsel and, to the extent it overlaps, it is denied
for the reasons stated above.
To the extent movant is arguing that his attorney failed to introduce evidence gathered by
law enforcement showing someone other than movant was responsible for Danny Coleman’s
murder, movant’s claim fails because he has not described what that evidence is. There is nothing
in the record before the Court indicating that law enforcement had evidence showing that someone
other than those parties identified at trial were responsible for the murder. Movant carries the burden
of proving his claims in a post-conviction proceeding. Strickland, 466 U.S. at 687. He has failed
to provide this Court with any evidence or explanation to support this claim. The claim is denied.
12.

Failure to Subpoena Joe Briskey’s Employer

Movant further claims in Ground Three that his trial counsel was ineffective for failing “to
subpoena the employer of Joe Briskey, and demonstrate that he was not out-of-town at the time of
Danny Coleman’s murder.” Doc. 1 at 23. As discussed above, movant’s counsel attempted to create
reasonable doubt by offering evidence to support the theory that Joe Briskey was hired for the
murder, which took place at his house. At trial, Mr. Briskey testified that he was out of town on
business on the date of the murder. Defense counsel, however, did not subpoena Joe Briskey’s
employer in order to obtain documents that could have demonstrated that Briskey was not out of

32

town at the time of Danny Coleman’s murder. That said, counsel’s decision in this regard was not
constitutionally defective. Had defense counsel called Briskey’s employer and learned that Briskey
was in fact out of town for a business trip on the date of the murder, defense counsel’s theory of
defense would have been damaged. Defense counsel’s decision not to subpoena Joe Briskey’s
employer was likely one of trial strategy. Issues of trial strategy are virtually unassailable in a
post-conviction proceeding. Rice, 449 F.3d at 897.
Moreover, there is nothing in the record to indicate that the company maintained
employment records back to the date of the murder, or that there existed documents showing that
Joe Briskey had not left town. In short, movant has not established that the outcome of the trial
would have been different had his counsel subpoenaed Joe Briskey’s employer. The claim is denied.
13.

Failure to Subpoena Witnesses

Next movant argues in Ground Three that his counsel was ineffective because he “failed to
subpoena witnesses who would have demonstrated that Danny Coleman told them his plans for the
evening when he was murdered.” Doc. 1 at 23-4. Again, movant’s claim will be denied because
he has provided no information or explanation to support this claim. Movant does not identify who
those witnesses would be, what they would have said, or even what Danny Coleman’s plans
purportedly were for the evening he was murdered, and why those plans would have been probative
at trial. Without this information, the Court cannot assess counsel’s performance with respect to this
issue. The movant in a § 2255 action has the burden to establish that he is entitled to relief, and
conclusory allegations of ineffective assistance are insufficient. Strickland, 466 U.S. at 687-88;
Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001). This claim is denied.

33

14.

Failure to Subpoena the Son of Danny Coleman

Movant also claims in Ground Three that his counsel was ineffective in that he should have
subpoenaed the son of Danny Coleman, who would have testified as to his father’s plans on the
evening of the murder. Doc. 1 at 24. Once again movant does not describe what Danny Coleman’s
plans were and why this information, had it been presented to the jury, would have had any effect
on the jury’s verdict. The claim is denied.
15.

Visitors Logs

Movant further asserts in Ground Three that his trial counsel was ineffective when he failed
to subpoena officials from MDOC to “demonstrate that the visitors’ logs from the institution where
Larry Nolan and Michael Kempker were incarcerated did not support the respective trial testimony
of Karen Coleman and Michael Kempker concerning prison visits by Karen Coleman, James
Kornhardt, Michelle Nolan, and the father of Michael Kempker.” Doc. 1 at 24. Movant’s claim
fails because it is not supported by the facts. The government did subpoena these records and it
provided them to defense counsel during discovery. There would be no reason for movant’s counsel
to have subpoenaed records that were already produced.
The government in its response states that the prison records were incomplete and worked
to neither party’s advantage in most instances, including the ability to verify the meeting between
movant and the Kempkers. The prisoner logs did, however, aid in movant’s defense. Movant’s
counsel used the logs to verify that Joe Briskey had visited Larry Nolan at least 36 times while Mr.
Nolan was in the prison.
Movant’s claim fails because movant’s counsel already had access to the prison visitors logs.
Counsel was not constitutionally ineffective for failing to subpoena them himself. Moreover,

34

movant cannot establish that the outcome of his criminal proceedings would have been different had
his counsel subpoenaed records he already had. The claim is without merit.
16.

Deposits of Inmate Accounts and Prison Telephone Records

Movant also claims in Ground Three that he was subjected to ineffective assistance of trial
counsel because his counsel “did not subpoena officials from [MDOC] to testify concerning deposits
to the inmate accounts of Larry Nolan and Michael Kempker, and concerning telephone records of
calls made by Larry Nolan and Michael Kempker.” Doc. 1 at 24.
Movant fails to establish that his attorney’s performance was constitutionally infirm in this
regard. At trial, the government called Rodney Kueffer, the finance officer for MDOC, to testify
regarding Larry Nolan’s prison account. Mr. Kueffer was asked to review Larry Nolan’s inmate
accounts specifically for deposits made by movant, Karen Coleman, or Alfred or Bonita Kempker.
Mr. Kueffer provided testimony regarding the amounts each of these individuals paid into Larry
Nolan’s account. Tr. Trans. Vol. III-A, p. 55-62.
On cross-examination, defense counsel established that Larry Nolan was selling leather
goods to Alfred Kempker, which could explain the money paid by him into Larry Nolan’ account.
Defense counsel further established that the witness had no knowledge as to why these people
contributed the amounts they did. Moreover, there was evidence that movant paid $827 into Larry
Nolan’s account, but defense counsel was able to establish that it was deposited over a period of
more than five years and it was not an unusually high amount for a friend to contribute. Id. at 63-66.
The Court concludes, therefore, that defense counsel was not ineffective for failing to call
an officer from the MDOC to testify concerning the deposits to Larry Nolan’ account because the
government had already called the witness and defense counsel had ample opportunity to

35

cross-examine the witness in an effective manner. Moreover, movant has not explained how he was
prejudiced by this decision. Movant fails to explain what another MDOC witness would have
testified to, and how that testimony would have altered the outcome of his trial proceedings.
A MDOC witness did not testify regrading funds or deposits into Michael Kempker’s prison
account, or concerning telephone records of calls made by Larry Nolan and Michael Kempker. That
said, movant fails to explain in his motion what testimony a prison official would have offered with
respect to Mr. Kempker’s account or the telephone records, and how this evidence would have been
beneficial to movant’s case. Movant bears the burden of establishing that he is entitled to relief
under § 2255, and conclusory allegations of ineffective assistance are insufficient. Strickland, 466
U.S. at 687-88; Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001). The claim is without
merit.
17.

Failure to Subpoena Karen Coleman’s Son Regarding Bank Funds

Movant next argues in Ground Three that his trial counsel was ineffective for failing to
subpoena Karen Coleman’s son and his girlfriend Dawn to testify “concerning the funds which
Karen Coleman allegedly withdrew from her bank account and kept in a drawer at the house, and
which Karen Coleman invaded to remodel bedrooms, purchase cars, pay taxes and insurance, and
make loans to friends or gifts to acquaintances.” Doc. 1 at 24.
Movant’s claim fails because he does not explain what testimony he expects Joby Coleman
would have given at trial regarding the “funds” Karen Coleman kept at the house and the purpose
for which she kept the “funds.” Movant also does not explain the supposed source of the “funds,”
and the relevance of the purchases Ms. Coleman allegedly made. Without such an explanation,
movant cannot carry his burden of establishing that he received constitutionally infirm

36

representation. Strickland, 466 U.S. at 694. Without information as to what their testimony would
have been, the Court is not able to assess how the outcome of movant’s trial would have been
different had his counsel called Joby Coleman or his girlfriend as witnesses. In addition, movant has
not shown that Joby Coleman and his girlfriend were available and willing to testify.
“The decision not to call a witness is a ‘virtually unchallengeable’ decision of trial strategy.”
United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (internal marks and cited cases omitted).
See also Bowman v. Gammon, 85 F.3d 1339, 1345 (8th Cir. 1996) (noting that under Strickland,
“decisions related to trial strategy are virtually unchallengeable”). “To establish prejudice from
counsel’s failure to investigate a potential witness, a petitioner must show that the witness would
have testified and that their testimony ‘would have probably changed the outcome of the
[proceeding].’” Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir. 1996) (quoting Stewart v. Nix, 31
F.3d 741, 744 (8th Cir. 1994)). Movant has failed to establish this claim.
18.

Failure to Exclude Recorded Jail Calls

In Ground Three movant further contends that his trial counsel committed a “procedural
error” because he made “no attempt to have [movant]’s recorded jail telephone calls to his wife
excluded on the basis that the audio recordings were obtained from the jail without a valid Search
Warrant or subpoena.” Doc. 1 at 24-5. Movant is unable to establish either the “performance”
prong of the Strickland analysis or prejudice.
First, contrary to movant’s assertion, his trial counsel did attempt to exclude the recorded
jailhouse calls. Movant’s counsel filed a motion in limine and argued that the recordings were not
relevant or admissible under Rules 401 and 402 of the Federal Rules of Evidence. United States v.

37

Kornhardt, 4:08-CR-701 CAS, Doc. 250. Movant’s counsel also argued that some of the recordings
were unduly prejudicial to movant under Rule 403. Id.
Movant’s counsel did not argue in the motion in limine that the evidence should be excluded
because the recordings were obtained without a search warrant or subpoena. But movant’s counsel
was not deficient for failing to do so. Under the law, the government is not required to obtain a
search warrant for the jailhouse recordings. Search warrants are necessary when the government
is attempting to invade areas in which a defendant has a reasonable expectation of privacy, and there
is no expectation of privacy when talking on a jail telephone. Lanza v. New York, 370 U.S. 139,
143 (1962) (“(I)t is obvious that a jail shares none of the attributes of privacy of a home, an
automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the
order of the day.”); see also Thornburgh v. Abbott, 490 U.S. 401, 410, fn.9 (1989)(any “attempt to
forge separate standards for cases implicating the rights of outsiders is out of step with the
intervening decisions in [our cases].”). Had movant’s counsel moved to exclude the jailhouse
recordings based on the absence of a search warrant or subpoena, his motion would have been
denied. Accordingly, movant cannot meet the performance prong of Strickland, and he cannot show
prejudice. Strickland, 466 U.S. at 697 (1984). The claim is without merit.
19.

Rule of Completeness

In Ground Three movant also asserts that his trial counsel was ineffective for failing “to
insist that the rule of completeness be enforced by insuring that all of [movant]’s aforesaid telephone
conversation, in which his wife told him that she wanted all of the guns out of the house, was
introduced into the record.” Doc. 1 at 25. According to movant, “this inflicted unfair prejudice on

38

the [movant] because the portion played to jurors reflected that the [movant] was acting for purposes
of obstructing justice instead of obeying his wife’s demand.” Id.
As noted above, movant’s trial counsel filed a motion to exclude the jailhouse records in
their entirety. United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 250. In the alternative, he
requested that the jailhouse recordings be redacted. Movant’s counsel argued that the recorded
phone calls of movant with his family “generally touche[d] on matters related to his case, such as
his relationship with his wife, raising money for family expenses, and his reaction to the
development of his case and witnesses in it, including Stephen [sic] Mueller.” Id. at 1. Counsel
argued that these conversations were not only irrelevant but unduly prejudicial to movant’s case.
Id. at 2. Counsel made the strategic decision not to play the recordings beyond what the government
was offering. Matters of trial strategy are virtually unreviewable in § 2255 post-conviction
proceedings. United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006).
Even assuming movant’s counsel should have insisted that all of the jailhouse phone
recordings be played for the jury, movant cannot establish prejudice. At trial, movant’s wife, Diana
Kornhardt, testified. She was asked whether she remembered being told by one of movant’s
attorneys that as a condition of movant’s bond, guns could not be in the house. Trial Trans. Doc.
319, p. 111. Mrs. Kornhardt responded: “Honestly that I don’t recall because I removed all the guns
from the house within two days of James’s arrest on my own doing.” Id. (emphasis added). When
asked why she has removed all the guns, Mr. Kornhardt responded, “I removed the guns from the
home because once Jim was arrested and it was publicized on the internet, news, newspaper that I
lived in Dittmer, and I live in a rural area, my concern was I would be robbed due to the fact that I
have to be gone during the day, the kids were going to be gone, so I removed jewelry, guns and any

39

cash from my house within two days of his arrest.” Id. Mrs. Kornhardt also testified that she did
not see Steve Mueller remove anything from the house. Playing for the jury all of movant’s
telephone conversations that he had in jail, including the one in which his wife told him that she
wanted all of the guns out of the house, would have been repetitive, and movant cannot show that
it would have changed the outcome of the trial. Moreover, playing the complete tapes might have
caused more damage than good because movant’s wife had testified that she believe she had already
removed all the guns. Movant has not established that playing the complete jailhouse recordings
would have altered the outcome of his trial. The claim is without merit.
20.

Failure to Impeach Karen Coleman

Movant also claims in Ground Three that his trial counsel was ineffective for failing to
impeach Karen Coleman “through cross-examining her with the telephone records and prison
visitation logs which would have demonstrated the falsity about having received telephone calls
from Larry Nolan, or, visits with him in prison when [movant] was alleged to have been present.”
Doc. 1 at 25.
Movant’s argument fails because contrary to his assertion, defense counsel did
cross-examine Karen Coleman about the lack of any corroborating documentation. As stated above,
when movant’s counsel cross-examined Karen Coleman, he established that, although she claimed
to have mailed Larry Nolan numerous letters, she did not have one letter to corroborate her
testimony. Tr. Tran. Vol. III-B, p. 61. In addition, although Karen Coleman testified she had called
movant several times from her cell “bag” phone, she did not have one document from the phone
company to show these phones calls were actually made. Id. at 62. Karen Coleman testified that
she wrote movant’s various phone numbers down in the back of one of her check registers.

40

Movant’s counsel established during cross-examination that she kept every one of her check
registers except for the one with the phones numbers, which would have corroborated her testimony.
Id. at 88.
During closing argument, with respect to Karen Coleman’s testimony, movant’s counsel
argued:
And nothing interestingly enough can be corroborated, not one word of what she
said. She talks about what? She talks about all these letters. Letters on top of letters
on top of letters talking about the doctor. Conveniently burned. She talks about,
well, I jotted down the numbers on the back of potentially a check register. Not
there. She talked about this story where she and Michelle Nolan heard that a tape
recording of her implicating her was buried over on Tennessee. Led the detectives
to it. Not there. Talked about a cell phone. Not there. Visiting records. Nothing
is corroborated.

Id. at 92. Movant’s counsel clearly set out to undermine Karen Coleman’s testimony by highlighting
her inability to corroborate anything she said. To the extent movant is asserting that counsel did not
do enough to impeach Karen Coleman, he does not state specifically what more his counsel should
have done. Movant needs to provide more information to support his claim. The Court will not
comb the record looking for instances when Ms. Coleman’s testimony could have been impeached.
As stated above, mere conclusory allegations are insufficient to support a claim for ineffective
assistance of counsel. Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001). Movant’s claim
fails because it does not assert with specifically how his counsel failed to impeach Ms. Coleman’s
testimony.
21.

Failure to Impeach Karen Coleman and Joe Briskey

In Ground Three movant further complains that his trial counsel was ineffective for failing
to impeach “the trial testimony of Karen Coleman and Joe Briskey, with questions that would have

41

demonstrated that their respective testimony was based on recalling facts that they had read about
in police reports, or were told to them by agents/officers, instead of memory of actual events they
had witnessed.” Doc. 1 at 25.
Again, the record does not support movant’s assertion. Movant’s trial counsel did challenge
Karen Coleman and Joe Briskey vigorously. On a number of occasions he called attention to their
inability to keep their stories straight, and he highlighted the many versions of their stories that they
provided to law enforcement. The direct examination of Karen Coleman covers 19 pages of the trial
transcript. Movant’s cross-examination lasted several hours and covered over 125 pages of the trial
transcript. The direct examination of Joe Briskey covered 17 pages of the trial transcript, and
cross-examination by movant’s counsel consists of 55 pages. Movant’s counsel was able to
establish with both witnesses that they had each met with the government’s prosecutors or agents
on many occasions to discuss this case and review their testimony, that their testimony kept
changing with each meeting, and that their stories were not corroborated by any records. In his
motion movant makes the conclusory statement that his trial counsel was ineffective in failing to
impeach their testimony, but he offers no specifics as to what testimony should have been
impeached, or what evidence, other than generic “police reports,” his counsel should have used for
impeachment. The Court finds that the cross-examination of these two witnesses was effective and
thorough.

Movant has not

established that his counsel provided constitutionally infirm

representation in this regard. Furthermore, movant has not explained to the Court how the outcome
of his trial proceedings would have been different had his counsel cross-examined these two
witnesses in some other manner. The claim is without merit.

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22.

Failure to Impeach Agents and Officers

As an additional claim in Ground Three, movant states that his trial counsel was ineffective
for failing to impeach the trial testimony of agents and officers “with questions designed to
demonstrate to jurors that they had coached Karen Coleman, Joe Briskey, and Michael Kempker,
about the necessity of testifying to specific facts, and that this was accomplished through a process
of leading questions, or statements which included the desired response, and that each witness was
allowed to infer, from those questions or statements, that it was in their respective penal interests
to include in the trial testimony regardless of its truth or falsity (the officers and agents should have
been impeached with failing to record the conferences with Karen Coleman, Joe Briskey, and
Michael Kempker, as such recordings would have clearly revealed that they obstructed justice and
subporned [sic] perjury by counseling or encouraging these witnesses to commit perjury at the
trial).” Doc. 1at 25-6.
Again, movant’s claim is not supported by the record. Contrary to movant’s claim, his
counsel did effectively cross-examine the case agent with questions designed to demonstrate that
he had “coached” the witnesses. For example, movant’s counsel established that Agent Heitzler had
interviewed Karen Coleman on eight different occasions. Tr. Trans. Vol. IV, p. 181-82. As for Joe
Briskey, cross-examination established the agent had talked to him on five occasions. Id. at 208-23.
With respect to both witnesses, counsel established that their stories changed from meeting to
meeting. In the Court’s view, it is clear that the purpose of this trial tactic was at least in part to
convey to the jury that the agent was trying to get the witnesses to change their stories to fit the
prosecution’s theory of the case. Movant also effectively cross-examined the agent regarding his
meetings with Steven Mueller. Defense counsel elicited testimony from the agent that he told Mr.

43

Mueller to talk with his counsel in order to get his story straight. Id. at 202-203. A review of the
trial transcript reveals that one of the defense theories of the case was that the government had
manipulated witnesses to testify against movant. In other words, that these witnesses had been
“coached.”
Movant offers no specifics as to what more his counsel could have done, what specific
testimony should have been impeached, or what evidence, other than generic “police reports,” his
counsel should have used for impeachment. The Court finds that the cross-examinations of the law
enforcement officers were effective and thorough. Movant has not established that his counsel
provided constitutionally infirm representation in this regard. Furthermore, movant has not
explained to the Court how the outcome of his trial proceedings would have been different had his
counsel cross-examined these two witnesses in some other manner. The claim is denied.
23.

Dismissal of Indictment

As further grounds for relief in Ground Three, movant asserts that his trial counsel was
ineffective for failing to seek dismissal of the indictment “on the basis that the failure of the
agents/officers to either record the conferences or sessions with Karen Coleman, Joe Briskey, and
Michael Kempker, or, to prepare notes thereof, deprived [movant] of his only defense to the charge,
i.e., that they were testifying falsely, and, effectively, denied him of his Sixth Amendment
entitlement to be represented by counsel, because, without those notes or recordings,[movant] could
not defend against the charge.” Doc. 1 at 26.
Movant’s counsel was not ineffective in failing to seek dismissal of the indictment on the
ground that officers or agents failed to record or prepare notes of conferences with witnesses. The
failure of an agent to record interviews is not the basis for a motion to dismiss an indictment, and

44

movant has cited no authority in support of his argument. Had defense counsel filed a motion to
dismiss on this basis, the motion would have been denied. Movant, therefore, cannot show his
counsel’s performance was defective in this regard, or that he has suffered prejudice. The claim is
without merit.
24.

Pretrial Ruling Regarding Admissibility of Karen Coleman’s Testimony

Movant also faults his trial counsel in Ground Three for failing to move to exclude the
testimony of Karen Coleman. Movant asserts in his motion that Ms. Coleman is unreliable for a
number of reasons, including that she was “spoon fed” information by law enforcement and was
motivated to lie in order to obtain a reduction in sentence. Doc. 1 at 27. He claims that his attorneys
were ineffective for failing to seek a pretrial ruling excluding Karen Coleman’s testimony. He
asserts that Ms. Coleman was a “habitual liar who had difficulty distinguishing the truth from
fiction; that she was a manipulative person who used others to her advantage, including Larry Nolan;
that she was ‘street smart’ in the sense that she could sense the direction that others wanted her to
go and react accordingly; that she experienced difficulty remembering events and facts due to the
nervous breakdown she suffered following the murder of Danny Coleman; and that she possessed
an incentive to testify falsely because a conviction of [movant] would result in a reduced sentence.”
Id. at 28.
Movant cannot show that his counsel’s performance was deficient regarding the admission
of Ms. Coleman’s testimony. The issues movant raises with respect to Karen Coleman’s testimony
go to the weight given to her testimony, in other words her credibility, not to the admissibility of her
testimony. The objections movant raises would not have been grounds to exclude Ms. Coleman’s
testimony. In other words, his counsel would not have succeeded on a motion to exclude Ms.

45

Coleman’s testimony based on these grounds. That said, the issues movant raises do go to the
witnesses’s credibility, and movant’s counsel raised these issues during his cross-examination of
Ms. Coleman. See Tr. Trans. Vol. III-B, 27-153. Movant’s claim that his counsel should have moved
to exclude Ms. Coleman’s testimony is without merit.
25.

Confession of Steve Mueller

In Ground Three movant also asserts his counsel provided ineffective assistance of counsel
because counsel did not “properly address the issue of allowing the confession of co-defendant Steve
Mueller, to be introduced at the trial.” Doc. 1 at 30-1. Movant contends that separate trials would
have avoided the “unfair prejudiced suffered by James Kornhardt when jurors were allowed to hear
the extra-judicial, unsworn, and uncross-examined, hearsay statements of co-defendant Steve
Mueller.” He argues this was in violation of Bruton v. United States, 391 U.S. 123 (1968).
Contrary to movant’s assertion, his counsel did challenge the admissibility of Steve
Mueller’s statements a number of times. For example, defense counsel filed a motion to sever
movant’s case from his co-defendant’s on the ground that the jury may hear evidence that implicated
movant, even if the Court were to issue a limiting instruction warning the jury not to consider said
evidence against movant. Movant’s counsel argued that “because the statements of co-defendants
are likely admissible against the codefendants in this case, but inadmissible with regard to [movant]
due to hearsay, confrontation and due process concerns, severance of Defendant from his
co-defendants is proper.” United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 88 at 6. Movant’s
counsel also filed a motion in limine to exclude hearsay statements, which included the admissibility
of all of Steven Mueller’s statements. Id., Doc. 236. Movant’s counsel filed a motion for
reconsideration of his motion in limine to exclude co-defendant admissions. Id., Doc. 243. Movant’s

46

counsel raised this argument again on the first day of trial. Tr. Trans. Vol. 1, p. 4-6. And movant’s
counsel repeatedly challenged the statements by raising objections during trial. See, e.g.,Tr. Trans.
Vol. II, p. 183. In his motion and supporting documents, movant does nothing to explain what more
his counsel should have done. Movant’s claim that his counsel was ineffective for failing to object
to the admission of Steven Mueller’s statements is without merit.
26.

Failure to Request Jury Instruction

As an additional claim in Ground Three, movant claims his counsel was constitutional
ineffective because he failed to request the Court “to give a jury instruction informing jurors that
they could not base guilt simply due to James Kornhardt’s failure to establish an ‘alibi.’” Doc. 1 at
32.
At trial, the jury was given the following instructions:
[E]ach defendant is presumed to be innocent. Thus each defendant, even though
charged, begins the trial with no evidence against him. The presumption of
innocence alone is sufficient to find each defendant not guilty and can be overcome
only if the government proves, beyond a reasonable doubt, each essential element of
the crime charged. . . . There is no burden upon a defendant to prove that he is
innocent. Accordingly, the fact that a defendant did not testify must not be
considered by you in any way, or even discussed, in arriving at your verdict.
United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 258 at 14.
The jury will always bear in mind that the law never imposes upon a defendant in a
criminal case the burden or duty of calling any witnesses or producing any evidence,
and no adverse inference may be drawn from his failure to do so.
Id. at 46.
Movant did not testify at trial, and he did not present evidence of an alibi for the day of the
murder. But movant’s counsel was not ineffective for failing to ask for an instruction informing
the jury that they may not base guilt on movant’s failure to establish an alibi. Such an instruction

47

was not necessary and would not have changed the outcome of the trial because the jury was
informed that movant need not prove that he was innocent, and that the burden rested entirely with
the government. The jury was also instructed that the fact the movant did not testimony must not
be considered in any way. In his motion, movant does not explain how specifically calling attention
to the fact that he need not present alibi evidence would have changed the outcome of the trial. In
the Court’s view, the more specific instruction was not necessary because the effect of movant’s
failure to testify or present evidence of an alibi was already addressed in the jury instructions.
Movant has not established that his counsel was ineffective for failing to request an alibi instruction
or how the outcome of the proceedings would have been different. Strickland, 466 U.S. at 697
(1984). The claim is without merit.
27.

Absence of Communication Between Karen Coleman and Kornhardt

In Ground Three movant also asserts that his trial counsel provided ineffective representation
by failing to reveal “the total absence of any communication occurring between Karen Coleman and
James Kornhardt, after law enforcement authorities reactivated the closed case in the late 1990s.”
Doc. 1 at 32.

Movant argues that “the evidence established a termination of their alleged

association in 1994. No witness testified concerning the occurrence of any contact, or
communications between Karen Coleman and [movant] after 1994.” Id. Therefore, according to
movant, “[i]t is contradictory and inconsistent for prosecutors to assert that the actions on Karen
Coleman in 1998 were attributable to [movant] when the evidence established a termination of their
alleged association in 1994.” Id.
Movant’s argument is internally inconsistent. Movant faults his counsel for “failing to
reveal” that there was no connection between himself and Ms. Coleman since 1994, while at the

48

same time he concedes that the evidence established that he and Ms. Coleman had terminated their
alleged association in 1994. As movant admits, there was no evidence before the jury about any
contact or communication between Karen Coleman and movant after 1994. Perhaps movant means
to argue that his counsel was ineffective for failing to highlight to the jury that there was no
communication between movant and Ms. Coleman after 1994, and that his counsel should have
stressed this more in cross examinations and his closing argument. The Court declines to find
constitutionally deficient performance on this basis. The Court finds this was a matter of trial
strategy, which is virtually unreviewable in § 2255 post-conviction proceedings. United States v.
Rice, 449 F.3d 887, 897 (8th Cir. 2006).
But even assuming movant’s counsel should have emphasized during cross-examinations
and closing argument that there was no communication between Karen Coleman and movant after
1994, movant cannot establish prejudice. As movant admits, the jury was presented with evidence
showing that the last communication between movant and Ms. Coleman was in 1994. But in light
of the strong evidence of movant’s guilt, the jury decided to convict. United States v.Kornhardt, 661
F.3d at 350-5. Movant has not established that the outcome of his criminal proceedings would have
been different had movant’s counsel spent more time highlighting the lack of communication
between movant and Ms. Coleman. The claim is without merit.
28.

Motion to Dismiss Based on Expiration of Limitations Period

Movant makes the following argument in Ground Three:
Defense attorney did not properly present arguments in support of dismissing the
indictment based on expiration of the limitations period. The alleged conduct of
James Kornhardt occurred outside the limitations period. Jurors only found him
guilty based on acts which occurred outside of the five-year statute of limitations.
Jurors were never requested to make a finding as to when [movant]’s acts were
completed. Defense attorneys did not make an argument based on the legal principle
49

that time limitations begin “to run on the date the offense is first committed.” United
States v. Hook, 781 F.2d 1166 (6th Cir. 1985). Proper argument and legal research
would have resulted in a dismissal of the charges.

Doc. 1 at 34.
Again, movant’s account of his counsel’s action is inaccurate. Contrary to movant’s
assertions, movant’s counsel did file a motion to dismiss based on the expiration of the statute of
limitations. United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 95. Indeed, his counsel argued
that movant’s alleged conduct occurred outside the limitations period.

Movant’s claim in this

regard is without merit.
29.

Fingerprint Analysis

Movant also claims in Ground Three that his trial counsel was ineffective for failing to
challenge the admissibility of the government’s fingerprint expert. Movant asserts that at the time
of his trial, the science behind fingerprint analysis was being disputed. He argues that fingerprint
identification based on latent fingerprint analysis fails to meet the Daubert criteria, and he argues
his counsel should have objected to the fingerprint evidence on this basis. Doc. 1 at 34.
Again, the record is inconsistent with movant’s claim. Movant’s trial counsel did file a
motion in limine to exclude latent fingerprint testimony based on this very argument. United States
v. Kornhardt, 4:08-CR-701 CAS, Doc. 231. Movant’s trial counsel requested that the Court exclude
the testimony of all forensic fingerprint examiners the government intended to call, to hold a hearing
on counsel’s motion, and to apply the principles from Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) to exclude all testimony from such witnesses “because latent fingerprint
analysis, and specifically the latent fingerprint analysis utilized in this case, does not meet Daubert’s
standard for admissible expert testimony.” Id. at 1. The undersigned heard arguments on counsel’s
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motion prior to trial, and overruled the motion. Tr. Trans. Vol. 1, p. 3. Defense counsel then
renewed his objections to the testimony during the trial. See, e.g., Tr. Trans. Vol. II, p. 171. As
movant’s counsel engaged in the very conduct movant argues he should have with regard to the
fingerprint evidence, movant has not established that his counsel’s performance was deficient. The
claim is without merit.
30.

Prosecutor's Closing Argument

Movant further claims in Ground Three that his counsel was ineffective for failing to object
to and to request a mistrial when the prosecutor argued during his closing argument that Danny
Coleman was killed due to a bullet wound. Movant claims that this was in direct contradiction to
the evidence, including the government’s own expert. In his motion, movant states:
Thus, the prosecutor was encouraging jurors to ignore the evidence and find that
Danny Coleman was killed by a gunshot wound because, otherwise, [movant]’s
recorded telephone call to his wife, from the jail, would demonstrate the falsity of the
government’s theory and make fools of the agents and prosecutors. Great reliance
was placed on James Kornhardt’s aforesaid telephone call for purposes of
establishing his culpability. It constituted the single piece of direct evidence wherein
prosecutors could contend that he was expressing his consciousness of guilt.
Without some proof that Danny Coleman died from a gunshot wound, then the
government’s case would have collapsed. Thus, prosecutors were forced to continue
arguing, in contradiction of their own proof, that Danny Coleman was shot, and that
the murder weapon was stored in James Kornhardt’s house. This was total nonsense,
and defense counsel failed to protect his client by allowing the prosecutor to make
the argument.

Doc. 1 at 34.
The Court has review the trial transcript, and finds that the transcript does not support
movant’s argument. The prosecutor stated during closing arguments that Danny Coleman was
beaten to death with bats, and “a fighting stick of some sort,” and then he was shot over the left eye

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and in his chest. Tr. Trans Vo. VI, p. 67-8. The government’s attorney did not argue that Danny
Coleman was killed by a bullet.
Moreover, the prosecutor’s statement that Danny Coleman was shot in the head and chest
was not inconsistent with the forensic evidence. Dr. Mary Case, a pathologist who testified at trial
for the government, testified that the left side of the victim’s head was missing from the side to the
back. Tr. Trans. Vol. V, p. 31-34. She stated that something disrupted the brain but she could not
say what it was. Id. at 38. She noted that an x-ray revealed that there were multiple small fragments
that were opaque, which could be metal. She could not tell with certainty whether it was related to
a gunshot wound. She stated that the image was consistent with a gunshot wound but she could not
say definitively. Id. at 28-45. With respect to the victim's body, evidence established that
approximately 100 pounds of the victim’s body was missing. In particular, Dr. Case testified that
ribs were missing, much of the chest wall was missing, and skin, soft tissue, muscle and much of the
bone were missing. She testified that she would not be able to determine if a bullet traveled through
any of the missing body area. Id. at 39-45.
Defense counsel also called their own pathologist, Dr. Edward Edelstein, to testify at trial.
On cross-examination, Dr. Edelstein agreed that the left side of the skull was missing and part of the
ribs and chest tissue were missing and, therefore, it would be pure speculation to say what could
have happened to or what type of trauma may have occurred in those areas. Tr. Trans. Vol. V, p.
80-81.
The Court finds the prosecutor’s closing argument was not improper. Contrary to movant’s
assertion, the testimony from two pathologists was not inconsistent with the argument the
government made in closing that Mr. Coleman was shot in the head and chest after being beaten.

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Both doctors testified that large parts of the victim’s body were missing – parts of his head and skull
– therefore, they could not determine whether the victim had been shot in those two areas. Defense
counsel was not ineffective for failing to object to the government’s closing argument, because
statements regarding Danny Coleman being shot in the head and chest were not inconsistent with
the evidence at trial, and any such motion would have been denied. The claim is without merit.
31.

Failure to Seek Statute of Limitations Instruction

Movant also argues in Ground Three that his counsel was ineffective for not requesting a jury
instruction directing that the jury determine the statute of limitations. “The court gave a directed
verdict to the government on this issue by not submitting it to the jury, i.e., whether the indictment
was returned within five years of any criminal act by James Kornhardt, which violated 18 U.S.C.
§ 1958, that was in effect at the time of Danny Coleman’s death.” Doc. 1 at 36. Thus, movant
argues, his counsel was ineffective for failing to request jury instructions directing jurors to
determine if movant’s alleged conduct occurred prior to 1994. Id. at 37.
Movant’s counsel was not ineffective for failing to request a jury instruction allowing the
jury to decide the statute of limitations issue. The issues surrounding the statute of limitations in
this case presented legal questions that were decided by the Court following movant’s counsel’s
motion to dismiss the indictment on these grounds. There were no issues of fact for the jury to
determine with regard to the statute of limitations, and movant has pointed to none. Therefore,
movant’s counsel did not engage in constitutionally infirm representation when he did not request
a jury instruction with regard to the statute of limitations. Movant’s counsel waited until after trial
and appealed to the Eighth Circuit Court of Appeals this Court’s legal rulings as to the statute of

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limitations. As counsel’s performance was not constitutionally infirm, movant necessarily cannot
establish that he was prejudiced by counsel’s performance. Movant’s claim is without merit.
32.

Validity of the Indictment

As an additional claim in Ground Three, movant contends that his trial counsel was
ineffective when he failed to challenge the validity of the indictment. According to movant, a grand
jury convened in 1999 in this case and refused to return a “True Bill.” Doc. 1 at 38. Movant notes
in his motion that another grand jury convened in 2008, and the grand jury returned an indictment.
Movant then supposes, “[i]n order to justify a second referral, additional evidence must be
introduced to the second grand jury that was not available to the first grand jury.” Doc. 1 at 38.
Movant faults his counsel for failing to discover “what, if any, constituted the additional proof” was
presented to the second grand jury. Id. Movant then theorizes that had counsel done so, it would
have been revealed that law enforcement had no additional evidence linking movant to the murder
of Danny Coleman that they did not have in 1999, and the indictment would have been dismissed
as invalid. Id.
Movant’s claim amounts to nothing more than pure speculation. He points to no evidence
in support of his theory that there was no additional evidence presented to the grand jury in 2008.
According to the government, the foundation for movant’s claim is in error. The government states
in its response that a grand jury did convene in 1999 for the purpose of putting testimony of Michael
Kempker before the grand jury, however, the grand jury was not asked to return a “True Bill” at that
time.
Furthermore, movant provides no authority for his argument that the indictment was invalid
because the same evidence was presented to an earlier grand jury with no indictment. As there is

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no factual or authoritative basis to support movant’s claim that his counsel was ineffective for failing
to challenge the indictment based on the grand jury process, movant’s claim is denied without merit.
33.

Lafler and Frye

Movant further asserts in Ground Three that he was denied the benefit of plea negotiations.
In one paragraph, movant states “The recent Supreme Court opinions of Missouri v. Frye, and Lafler
v. Cooper, have elevated plea bargaining to the Constitutional level by now requiring defense
attorneys to engage in a plea bargaining session with federal prosecutors. [Movant] was denied the
benefit of plea negotiations, in violation of his Six Amendment entitlement to the effective
assistance of counsel.” Doc. 1 at 38.
In Missouri v. Frye, 132 S.Ct. 1399 (2012), the Supreme Court held that defense counsel was
deficient, as an element of a claim of ineffective assistance of counsel, in failing to communicate
to defendant the written plea offers from the prosecutor, which included terms and conditions that
may be favorable to the accused. In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Supreme Court
held that the petitioner was prejudiced by his counsel’s deficient performance in advising petitioner
to reject a plea offer and proceed to trial. In order to establish a claim of ineffective assistance based
on attorney conduct during plea negotiations, the petitioner must show “but for the ineffective advice
of counsel there is a reasonable probability . . . that the defendant would have accepted the plea . .
. that the court would have accepted its terms, and that the conviction or sentence, or both, under the
offer’s terms would have been less severe than under the judgment and sentence that in fact were
imposed.” Lafler, 132 S.Ct. at 1385.
Movant does nothing to explain how his attorney erred during the plea negotiations – or even
whether there were plea negotiations. He also fails to establish how the results of the proceeding

55

would have been different – in other words, that a plea agreement was offered, that he would have
accepted its terms, and that his conviction or sentence would have been less severe. This claim is
denied as conclusory and not supported by the record.
34.

Failure to Seek Hearing

Movant also contends in Ground Three that he received ineffective assistance of trial counsel
because his attorneys failed to demand a hearing on whether law enforcement authorities prepared
or took notes of their interviews with Karen Coleman, Steve Mueller, Michelle Nolan, Michael
Kempker and Joe Briskey. Doc. 1 at 39.
As the government notes, movant’s counsel filed many pretrial motions on his behalf. One
of those motions was a motion to preserve and produce any rough notes maintained by the agents
in this case. United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 91. At the August 28, 2009,
evidentiary hearing before the Honorable David D. Noce, United States Magistrate Judge, counsel
for the government responded that the government had already instructed its investigators and agents
to preserve investigatory materials. The Magistrate Judge, therefore, denied the motions without
prejudice as moot. United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 157 at 17-18.
Movant’s counsel protected movant’s rights with respect any notes maintained by the agents
in this case by filing a motion to preserve and produce the agents’ notes. The record does not
support movant’s contention that his counsel was ineffective in failing to demand an evidentiary
hearing regarding the agents’ notes. Furthermore, movant cannot establish prejudice. There is
nothing in the record to suggest that movant did not receive all the evidence to which he was
entitled. There is no evidence in the record of notes from agents that were not produced. Movant
has not shown he is entitled to relief, and his claim is denied.

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35.

Closing Argument Regarding Steven Mueller’s Confession

Finally, in Ground Three movant claims his trial counsel was constitutionally ineffective in
that he failed to object to the prosecutor’s closing argument when the prosecutor directed the jurors’
attention to the confession and extra-judicial statements made by Steven Mueller, which were
supposed to be admitted into evidence against Steven Mueller only. “[T]he prosecutor disregarded
the court’s cautionary instruction on this issue by directing the jury’s attention to Steve Mueller’s
aforesaid confession and statements and asking them to find [movant] guilty based on Steve
Mueller’s said confession and extra-judicial statements, all without objection from the defense
attorneys.” Doc. 1 at 40.
Again, movant is mistaken as to the record in this case. Movant’s counsel did object to the
use of Steven Mueller’s confession and extra-judicial statements. After the prosecutor completed
the first half of his closing argument, movant’s counsel approached the Court and stated, “We want
to renew our motion under the various motions we filed pursuant to Bruton and Crawford. It is our
position that [the prosecutor], although most likely inadvertently, again mentioned Kornhardt in the
context of not an individual, Mr. Kornhardt.” Tr. Trans. Vol. VI, p. 71. The Court overruled the
objection. Id. at 72.
Movant fails to establish that his counsel was ineffective because his counsel did object to
the prosecutor referring to Steven Mueller’s testimony during closing arguments. Movant’s claim
is denied.
D.

Ground Four - Ineffective Assistance of Appellate Counsel

Movant is also dissatisfied with this appellate counsel. In Ground Four he raises six claims
of ineffective assistance of appellate counsel.

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To establish ineffective assistance of appellate counsel, movant must show that his appellate
counsel’s performance was deficient, and prejudice from that deficiency. The Eighth Circuit has
stated that “the deficient performance standard is rigorous” for a claim of ineffective assistance of
appellate counsel. United States v. Brown, 528 F.3d 1030, 1033 (8th Cir. 2008). A court’s review
“is particularly deferential when reviewing a claim that appellate counsel failed to raise an additional
issue on direct appeal.” Charboneau v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013).
“Experienced advocates since time beyond memory have emphasized the importance of winnowing
out weaker arguments on appeal.” Jones v. Barnes, 463 U.S. 745, 751 (1983). The Eighth Circuit
has stated, “[t]he Sixth Amendment does not require that counsel raise every colorable or
non-frivolous claim on appeal,” New v. United States, 652 F.3d 949, 953 (8th Cir. 2011), and when
“appellate counsel has ‘competently assert[ed] some claims on a defendant’s behalf, it is difficult
to sustain a[n] ineffective assistance claim based on allegations that counsel was deficient for failing
to assert some other claims.’” Gray v. Norman, 739 F.3d 1113, 1117-18 (8th Cir. 2014) (quoting
Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006)). According to the Eighth Circuit, it is
difficult to overcome Strickland’s presumption of reasonableness unless the “ignored issues are
clearly stronger than those presented.” Walker v. United States, 810 F.3d 568, 579 (8th Cir. 2016)
(quoting Gray, 739 F.3d at 1118).

Moreover, “[t]he prejudice standard is equally rigorous.”

Brown, 528 F.3d at 1033. A movant “must show that ‘the result of the proceeding would have been
different’ had he raised [the issue] on appeal.” Id. (quoting Becht v. United States, 403 F.3d 541,
546 (8th Cir. 2005)).

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1.

Fingerprint Evidence

In Ground Four movant argues that his appellate counsel was ineffective for failing to raise
the issue of fingerprint evidence on appeal. Movant states, “fingerprint testimony was incompetent,
and not in accordance with Supreme Court opinions addressing expert testimony.” Doc. 1 at 41.
Movant provides no further elaboration or citations in support of his claim. He does not explain
in what way the fingerprint testimony was incompetent or identify to which Supreme Court opinion
he is referring. Movant’s claim is conclusory and accordingly, it does not warrant relief. Bryson
v. United States, 268 F.3d 560, 562 (8th Cir. 2001).
That said, the Eighth Circuit has found that fingerprint evidence and analysis is generally
accepted. See United States v. Ibarra, 397 Fed.Appx. 285 (8th Cir. 2010) (noting fingerprint
evidence is generally accepted and finding fingerprint expert was qualified to testify); United States
v. Spotted Elk, 548 F.3d 641, 663 (8th Cir. 2008) (holding Daubert hearing was unnecessary for
admission of fingerprint expert); United States v. Janis, 387 F.3d 682 (8th Cir. 2004) (same); United
States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003) (holding district court did not err in declining
to conduct a Daubert hearing prior to admitting fingerprint evidence). There is no reason to believe
the Eighth Circuit would have granted an appeal based on a challenge to the admissibility of
fingerprint evidence. Movant’s counsel raised a number of issues on appeal, and movant has done
nothing to show that the fingerprint issue was stronger.

Walker, 810 F.3d at 579. The Court,

therefore, must presume it was appellate strategy to exclude from movant’s appeal a claim
challenging fingerprint evidence – a science which is widely accepted. Id.; Spotted Elk, 548 F.3d
at 663. Movant’s claim is without merit.

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2.

Speedy Trial

In Ground Four movant asserts that his appellate counsel was ineffective for failing to raise
the issue on appeal that he was denied a speedy trial. In support of this claim, movant cites no
controlling authority and he does not refer to the record. Movant’s claim, therefore, is conclusory
and does not warrant relief. Bryson, 268 F.3d 560, 562 (8th Cir. 2001). But even if the Court were
to address the claim, it is without merit.
Movant was indicted on the original charges on December 11, 2008, and made his initial
appearance the next day. At his arraignment on December 17, 2008, he filed a motion for additional
time in which to file pre-trial motions. United States v. Kornhardt, 4:08-CR-701 CAS, Doc. 31.
Trial was scheduled for March 2, 2009. Id. In January 2009, the parties requested a continuance of
the trial setting. The Court issued a Speedy Trial Order, in which it granted the parties’ request for
continuance, reset the trial for July 6, 2009, and found that any elapsed time was excludable under
the Speedy Trial Act. Id., Doc. 42. In April 2009, a superseding indictment was returned against
movant by the grand jury. Id., Doc. 64. Movant was arraigned on the superseding indictment. On
June 5, 2009, movant filed numerous pretrial motions with the Magistrate Court. Id., Docs. 85-91.
On June 9, 2009, the parties again filed a joint motion to continue the trial date. This Court granted
the motion and set the case for a status hearing on August 4, 2009. The Court also issued a Speedy
Trial Order declaring all elapsed time excludable under the Speedy Trial Act. Id., Doc. 97. A
second superseding indictment was returned on June 25, 2009. Id., Doc. 105. The Court held a status
conference on August 4, 2009, and determined with input and approval of all parties that the case
would be tried on March 1, 2010. Id., Docs. 111 and 131. Several pretrial motions were filed
between August 2009 and January 7, 2010, during which time motions were filed, hearings were

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held, transcripts were obtained. In January 2010, the Magistrate Judge completed ruling on all
pretrial motions. Defense counsel filed motions for reconsideration of the Magistrate Judge’s
rulings two weeks later. Those motions were under advisement until February 5, 2010. Id., Doc. 177.
Five days later, movant filed objections to the Magistrate Judge’s Report and Recommendation. Id.,
Doc. 182. On February 18, 2010, movant filed yet another request for continuance of the trial
setting. Id., Doc. 184. The Court granted that motion the next day, resetting the case for trial on
May 10, 2010, and issuing a speedy trial order declaring all elapsed time to be excludable. Id., Doc.
185. The Court granted another request for trial continuance by movant on March 15, 2010, resetting
the trial for June 7, 2010. Id., Doc. 193. The case proceeding to trial on that date.
Sixth Amendment and Speedy Trial Act challenges for delay “are reviewed independently
of one another. United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002). “The Speedy Trial
Act requires that a defendant be brought to trial within 70 days from the date of indictment or from
the date he makes his first appearance before an officer of the court in which the charge is pending,
whichever is later. 18 U.S.C. § 3161(c)(1); Sprouts, 282 F.3d at 1042. “When a newly indicted
defendant ‘is joined with a defendant whose speedy trial clock has already started running, the latter
defendant’s speedy trial clock will be reset’ to that of the new defendant. United States v. Lightfoot,
483 F.3d 876, 885-86 (8th Cir.), cert. denied, 552 U.S. 1053 (2007); see 18 U.S.C. § 3161(h)(6).”
United States v. Porchay, 651 F.3d 930, 937 (8th Cir. 2011). Periods of delay caused by pretrial
motions, whether filed by the defendant, co-defendants, or the prosecution, are excluded from the
calculation of this 70-day time frame, 18 U.S.C. § 3161(h)(1)(F); United States v. Fuller, 942 F.2d
454, 457 (8th Cir. 1991), cert. denied, 502 U.S. 914 (1991); as are continuances granted by the court

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in order to best serve ‘the ends of justice,’ § 3161(h)(8)(A).” United States v. Shepard, 462 F.3d
847, 864 (8th Cir. 2006).
Movant and his co-defendant filed numerous pretrial motions, and they requested extensions
and continuances on several occasions. Appellate counsel was not ineffective for not raising a
speedy trial violation because the Eighth Circuit would have rejected such a claim without merit.
But even if movant had a colorable claim for a speedy trial violation, movant’s counsel was not
constitutionally ineffective for failing to raise it. The Sixth Amendment does not require that
counsel raise every colorable or non-frivolous claim on appeal. Delo, 160 F.3d at 418. Although
movant maintains his appeal counsel should have raised the speedy trial issue on appeal, “[he]
neither compares the strength of that claim to those appeal issues [his] counsel asserted nor
otherwise casts doubt on [his] counsel’s strategic decision not to raise it.” Walker, 810 F.3d at 579.
Without evidence to the contrary, the Court is to presume that counsel’s decision not to argue that
there was a speedy trial violation “was an exercise of sound appellate strategy.” Id. Movant’s claim
is without merit.
3.

Indictment Failed to Allege an Offense

Movant further asserts in Ground Four that his appellate counsel was ineffective because he
failed to argue on appeal that “the indictment failed to allege an offense.” Doc. 1 at 41. Movant
offers no further explanation and does not state in what way the indictment failed to allege an
offense. Like so many of the grounds movant raises in his motion, this claim is conclusory and,
therefore, it does not warrant relief. Bryson, 268 F.3d 560, 562 (8th Cir. 2001). Furthermore, as
stated above in Ground One, the indictment does allege and movant was convicted of an offense
under 18 U.S.C. § 1958. If there is no merit to a claim, failure to raise it on appeal does not result

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in ineffective assistance of counsel under Strickland. Garrett v. United States, 78 F.3d 1296, 1305
(8th Cir. 1996). This claim is denied without merit.
4.

Sufficiency of Evidence

As an additional claim in Ground Four, movant argues that his appellate counsel should have
argued that on appeal that “the evidence did not support a conviction for mail fraud and/or murderfor-hire (18 U.S.C. § 1958).” Doc. 1 at 41. Once again, movant offer no further explanation, and
the claim should be dismissed as conclusory. Bryson, 268 F.3d at 562. But regardless, the claim
fails.
Setting aside the fact that movant has done nothing to show that a sufficiency of the evidence
argument would have been stronger than the arguments that were raised on appeal, the record
demonstrates that there was more than sufficient evidence to support movant’s conviction, and any
such argument movant’s appellate counsel might have made in this regard would have been rejected.
There was very good reason for movant’s appellate attorney to omit a challenge to the sufficiency
of the evidence. An appellant challenging the sufficiency of the evidence supporting his convictions
faces a very high bar. “The Eighth Circuit employs an ‘extremely strict standard of review’ in
determining sufficiency of the evidence to support a guilty verdict. United States v. Winston, 456
F.3d 861, 866 (8th Cir. 2006). In reviewing for sufficiency of the evidence, the Eighth Circuit views
the evidence in the light most favorable to the government, and accepts all reasonable inferences
drawn from the evidence that support the jury’s verdict. Id. A conviction will be overturned only
if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United
States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007) (cited case omitted). Movant provides no analysis
as to how his appellate counsel would have been successful had he asserted such a claim.

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Furthermore, as the government points out, the Eighth Circuit nonetheless considered the
strength of the government’s case when it determined that the admission at trial of Steve Mueller’s
grand jury testimony was harmless error, if error at all. The Eighth Circuit specifically noted in its
opinion:
As to the murder-for-hire and conspiracy to commit murder-for-hire charges, the
evidence against Kornhardt was overwhelming. Karen testified about Kornhardt’s
involvement in Danny’s murder, including the discussions before Danny’s death and
the payments received after Danny’s death. Kempker also testified about Kornhardt’s
involvement before Danny’s death. There was also the recorded phone conversation
where Kornhardt told Mueller to immediately remove several hidden items from the
house shortly after Kornhardt was arrested for Danny’s death…. Similarly,
Kornhardt’s recorded statements to his brother where he “[s]aid it doesn’t look good
for me” support the jury’s verdict as well…. Finally, the presence of Kornhardt’s
fingerprint on the new box of matches found near Danny’s burned body is a
particularly strong piece of evidence.
United States v. Kornhardt, 661 F.3d at 350.
And the Eighth Circuit wrote with respect to the obstruction of justice charge:
With regard to the obstruction of justice charge, the other evidence clearly
establishes beyond a reasonable doubt that any error in admitting Mueller’s grand
jury statements was also harmless. Shortly after being arrested for Danny’s death,
Kornhardt called Mueller. During the phone conversation, which the jury properly
heard, Kornhardt ordered Mueller to immediately remove several items that were
hidden throughout his house and detached garage. Kornhardt’s wife initially
answered the phone and remained in the house during the phone conversation. She
identified Kornhardt and Mueller as the speakers in the recorded conversation. She
also testified that she expected the police to search the house. The recorded phone
conversation significantly reduced the importance of Mueller’s grand jury testimony
because Mueller’s grand jury testimony was largely cumulative of the phone
conversation. When viewed collectively, the other evidence against Kornhardt as to
the obstruction of justice was strong.
Kornhardt, 661 F.3d at 350. In light of these conclusions, the Court is confident that even if
movant’s appellate counsel had raised an argument regarding the sufficiency of the evidence at trial,

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any such argument would have been denied on appeal. Accordingly, movant cannot establish
prejudice. Strickland, 466 U.S. at 697 (1984). Movant’s claim is without merit.
5.

Introduction of Steven Mueller’s Testimony

Movant also claims in Ground Four that he was denied a fair trial when co-defendant Steve
Mueller’s confession was introduced. Movant assert that his appellate counsel should have argued
this on appeal. This argument, however, was raised by movant’s appellate counsel on appeal, and
the Eighth Circuit rejected the argument. United States v. Kornhardt, 661 F.3d at 348-351.
Movant’s claim is without merit.
6.

Failure to Seek a Rehearing in the Court of Appeals

Finally, in Ground Four movant argues that his appellate counsel was ineffective for
“allow[ing] to go uncorrected the appeals panel finding that [movant]’s ‘Obstruction of Justice’
charge was based on a telephone conversation with Steve Mueller.” Doc. 1 at 41. Again, movant
provides no further explanation or analysis in support of his claim and it should be denied as
conclusory. Bryson, 268 F.3d at 562
That said, in order to “correct” a Court of Appeals decision, movant’s appellate counsel
would need to have filed a motion for rehearing, or, a petition for writ of certiorari with the Supreme
Court, both of which are discretionary.

“Due process guarantees a criminal defendant a

constitutional right to counsel for [his] first appeal, Douglas v. California, 372 U.S. 353, 357-58
(1963), and that right encompasses the right to effective assistance of counsel, Evitts v. Lucey, 469
U.S. 387, 396-400 (1985).” Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008) (parallel
citations omitted). The Eighth Circuit has explained, however, that due process does not guarantee
a constitutional right to counsel for a litigant seeking to file a certiorari petition in the United States

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Supreme Court. Steele, 518 F.3d at 988 (citing Ross v. Moffitt, 417 U.S. 600, 617-18 (1974);
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the
first appeal of right, and no further.”)); see also 28 U.S.C. § 1254 (writ of certiorari is discretionary).
“[W]here there is no constitutional right to counsel there can be no deprivation of effective
assistance.” Simpson v. Norris, 490 F.3d 1029, 1033 (8th Cir. 2007). In the absence of a
constitutional right to the effective assistance of counsel, movant’s § 2255 claim for ineffective
assistance for failure to file a petition for certiorari or move for a rehearing en banc is denied. See
Steele, 518 F.3d at 988.
E.

Ground Five - Due Process Insufficient Evidence

In Ground Five movant argues that he was denied due process of law when he was convicted
of an offense “not supported by the proof.” More specifically, movant argues that he was convicted
of obstructing justice on the basis that he directed Steven Mueller to destroy the firearm that was
used to kill Danny Coleman, but that the government failed to produce admissible evidence that the
victim was killed by a firearm, let alone a firearm with a silencer.
Movant failed to raise this issue in his direct appeal. If a claim could have been raised on
direct appeal but was not, it cannot be raised in a § 2255 motion. As stated above, movant can
overcome a procedural default under two circumstances. The first method is to show “cause” that
excuses the default, and “actual prejudice” resulting from the errors of which he complains. See
Frady, 456 U.S. at 168; Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997), cert. denied,
522 U.S. 1064 (1998). If a movant is unable to show “cause” and “actual prejudice,” he must make
a “substantial claim that constitutional error has caused the conviction of an innocent person . . . .”
Schlup v. Delo, 513 U.S. 298, 321 (1995). In one sentence, movant states that the issue in Ground

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Five was not raised on direct appeal “due to the ineffective assistance of appellate counsel, plus,
[movant] is ‘actually innocent’ of the charges.” Doc. 1 at 43.
The Court will address movant’s claim of actual innocence first. Claims of actual innocence
must be based on “new evidence,” which must convince the Court that “it is more likely than not
that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v.
Delo, 513 U.S. 298, 327 (1995). See also Embrey v. Hershberger, 131 F.3d 739, 741 (8th Cir. 1997)
(applying Schlup’s actual innocence standard in the context of a § 2255 motion). “To be credible,
such a claim requires petitioner to support his allegations of constitutional error with new reliable
evidence– whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence– that was not presented at trial.” Schlup, 513 U.S. at 324. “Because such
evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely
successful.” Id. Movant only makes the conclusory claim that he is actually innocent of the crime
for which he was convicted. He fails to present any new evidence for the Court’s consideration.
Movant’s unsupported assertion that such evidence exists is insufficient to establish a showing of
actual innocence based on new evidence. See Schlup, 513 U.S. at 324.
As for “cause” to lift the procedural bar, ineffective assistance of counsel in failing to raise
a claim on appeal can amount to cause to lift a procedural bar. Becht v. United States, 403 F.3d 541,
545 (8th Cir. 2005). The deficient performance, however, must have been so ineffective as to violate
the Constitution. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). The Court has already determined
in Ground Four that movant’s appellate counsel was not ineffective for failing to raise a sufficiency
of the evidence argument on direct appeal. The Court also noted that even if the claim had been
raised, it would have failed because the Eighth Circuit essentially decided this issue and concluded

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that the evidence against movant on the obstruction-of-justice charge was strong on this charge.
United States v.Kornhardt, 661 F.3d at 350. Because movant has failed to establish either cause and
prejudice or actual innocence, his due process insufficient evidence claim is dismissed as
procedurally barred.
F.

Ground Six - Admission of Statement by Steven Mueller

For his final ground for relief, movant argues in Ground Six that he was denied a
fundamentally fair trial when the Court allowed jurors to hear Steven Mueller’s unsworn, extrajudicial statements.
Movant raised the admission of Steven Mueller’s statements on direct appeal and, therefore,
he is precluded from asserting it again in his § 2255 motion. See Bear Stops v. United States, 339
F.3d 777, 780 (8th Cir. 2003); Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992). “[C]laims
which 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) (quoting Bear
Stops, 339 F.3d at 780). Furthermore, the Court of Appeals found the argument to be without merit.
Kornhardt, 661 F.3d at 349. As movant has already presented this issue to the Eighth Circuit Court
of Appeals, he is procedurally barred from re-litigating the claim again here. The claim is denied.
V. Conclusion
For all the reasons stated above, the Court finds that James K. Kornhardt is not entitled to
relief under 28 U.S.C. § 2255. The Court finds that all the claims in movant’s Motion to Vacate
have been raised on direct appeal, are procedurally barred, or fail on the merits.

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Accordingly,
IT IS HEREBY ORDERED that movant James K. Kornhardt’s motions to supplement the
record are GRANTED. (Docs. 21 and 25)
IT IS FURTHER ORDERED that movant James K. Kornhardt’s motion for evidentiary
hearing is DENIED. (Doc. 26)
IT IS FURTHER ORDERED that movant James K. Kornhardt’s Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is DENIED.
IT IS FURTHER ORDERED that movant James K. Kornhardt has not made a substantial
showing of the denial of a constitutional right such that reasonable jurists would find the Court’s
assessment of the constitutional claims debatable, or that reasonable jurists would find it debatable
whether the Court was correct in its procedural rulings and, therefore, this Court will not issue a
certificate of appealability on those claims. See Miller-El v. Cockrell, 537 U.S. 332, 338 (2003);
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
An appropriate judgment will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

9th

day of March, 2016.

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