Petrovic v. United States of America

Filing 47

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. No. 1], is denied. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. 1 Signed by District Judge Henry Edward Autrey on 10/7/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOVICA PETROVIC,
Petitioner,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:14CV334 HEA
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Respondent.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Jovica Petrovic’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United
States of America has responded to the motion, pursuant to the Court’s Case
Management Order, and Movant has filed a Reply thereto. For the reasons set
forth below, the Motion is denied.
PROCEDURAL HISTORY
Petitioner was indicted by a Grand Jury in July, 2010 on four counts of
interstate stalking and harassment in violation of protective orders under 18 U.S.C.
§ 2261A(2)(A), two counts of interstate extortionate threat under 18 U.S.C. §
875(d), one count of interstate stalking with a dangerous weapon under 18 U.S.C. §
2261A(1), and one count of interstate violation of a protection order under 18
U.S.C. § 2262(a)(1). The government dismissed one count of interstate violation of

a protection order under 18 U.S.C. § 2262(a)(1). In November 2011, the Court
conducted a jury trial. Petitioner was found guilty on four counts of interstate
stalking and harassment in violation of protective orders and two counts of
interstate extortionate threat. Petitioner was found not guilty of one count of
interstate stalking with a dangerous weapon. The Court sentenced Petitioner on
February 15, 2012 to a total term of 96 months of imprisonment. Petitioner was
sentenced to 60 months imprisonment on Counts One, Three, and Four, 36 months
imprisonment on Count Two, 24 months imprisonment on Count Five, and 24
months imprisonment on Count Seven. The sentence imposed in Counts One,
Three, Four, Five and Seven were ordered to run concurrently for a total of 60
months. The sentence imposed in Count Two was ordered to run consecutively for
an aggregate sentence of 96 months.
Petitioner appealed his sentence, arguing alleged errors at trial and regarding
the specific sentencing adjustment for obstruction of justice.
The Eighth Circuit Court of Appeals rejected all of Petitioner’s arguments.
See United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012).
STANDARD FOR RELIEF UNDER 28 U.S.C. 2255
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on
the ground “that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such
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sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. In order to
obtain relief under § 2255, the movant must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States
v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may also be limited by procedural default. A
movant “cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255
motion if the issue could have been raised on direct appeal but was not.” Anderson
v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or
jurisdictional claims not raised on direct appeal cannot be raised collaterally in a §
2255 motion “unless a petitioner can demonstrate (1) cause for the default and
actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993,
1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
DISCUSSION
Right to Evidentiary Hearing
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “‘[u]nless the motion and the files and records of the case conclusively
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show that the prisoner is entitled to no relief.’” Shaw v. United States, 24 F.3d
1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the movant] to relief.’” Payne v. United States, 78 F.3d 343,
347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir.
986)). The Court may dismiss a claim “without an evidentiary hearing if the claim
is inadequate on its face or if the record affirmatively refutes the factual assertions
upon which it is based.” Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905
F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant’s claim can
be conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner=s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. ' 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel=s performance Afell below an objective standard of reasonableness.@
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Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing Athere is a reasonable probability that, but for
counsel=s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a Ashowing that counsel made errors so serious that counsel was not functioning as
the >counsel= guaranteed the defendant by the Sixth Amendment.@ Id. Review of
counsel=s performance by the court is Ahighly deferential,@ and the Court presumes
Acounsel=s conduct falls within the wide range of reasonable professional
assistance.@ Id. The court does not Asecond-guess@ trial strategy or rely on the
benefit of hindsight, id., and the attorney=s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. LedezmaRodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
Aeliminate the distorting effects of hindsight@ by examining counsel=s performance
from counsel=s perspective at the time of the alleged error. Id.

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The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel=s error, and Athat >there is a reasonable probability that,
but for counsel=s unprofessional errors, the result of the proceeding would have
been different.= @ Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). AA reasonable probability is a probability sufficient to undermine confidence
in the outcome.@ Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court Amust consider the totality of the evidence before the judge or
jury.@ Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,
however, is different in the context of guilty pleas. Instead of merely showing that
the result would be different, the defendant who has pled guilty must establish that
Athere is a reasonable probability that, but for counsel=s errors, he would not have
pleaded guilty and would have insisted on going to trial.@ Hill v. Lockhart, 474
U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Ground One: Sentencing Abuse of Discretion
Petitioner claims that his trial counsel was ineffective because he did not
object when the Court “superimpose[ed] his own personal character thoughts as to
the mind and thoughts of alleged victim M. b. [sic], and ex-wife of Petitioner.”

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Petitioner also claims the Court abused its discretion in ordering Petitioner’s
sentence on Count Two to run consecutive to the sentences imposed on Counts
One, Three and Four. Petitioner argues the Court violated Apprendi v. New Jersey,
530 U.S. 466, (2000) by enhancing his sentence through imposing a concurrent
sentence on Count Two.
“[S]entencing judges are required to find sentence-enhancing facts only by a
preponderance of the evidence.” United States v. Norwood, 774 F.3d 476, 479 (8th
Cir.2014) (per curiam). See also U.S. v. Jenkins, 792 F.3d 931, 935 -936 (8th Cir.
2015). This Court may consider consecutive sentences to achieve what the Court
deems to be the appropriate total punishment. The Court gave due consideration to
the sentencing factors set out in 18 U.S.C. § 3553(a) and articulated its reasons for
the imposition of the consecutive sentence on Count Two.
Ground Two: Ineffective assistance of trial and appellate counsel
Petitioner alleges a variety of actions taken or not taken by counsel
(Petitioner was represented by the same attorney at trial and on appeal) that he
argues were ineffective.
Petitioner sets out the following as ineffective: failure to call his witnesses;
to present evidence at trial; to spend adequate time to prepare Petitioner for trial;
failure to properly cross examine the government’s witnesses; denied Petitioner
access to his laptop to retrieve text messages, voice recordings, addresses of
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witnesses; failure to invest minimum time to prepare himself for trial; preparation
of an appellate brief without merit; failure to provide Petitioner with complete trial
documents; failure to solicit testimony from witnesses who were subpoenaed;
withdrawing Petitioner’s approximate 1000 pages evidence; never informing
Petitioner which witnesses the Court subpoenaed; never challenging the sentencing
enhancement by the Court or the Appellate Court; failure to challenge the Court’s
instruction with regard to a witness’ testimony; failure to explain to Petitioner the
Plea-Deal offered by the government; Petitioner told his counsel about a
relationship he had had with a witness’ wife and counsel failed to challenge his
testimony in court; Petitioner told his counsel that the facts underlying this matter
were told to a state divorce judge who ignored them and counsel failed to see that
the criminal charges against Petitioner were abuse of discretion and frivolous
charges; counsel was allowed to remain as Petitioner’s attorney even though
Petitioner attempted to have him replaced at the trial level; counsel was
overwhelmed by the facts of the case and that powerful people were involved with
Petitioner’s wife and others, such that counsel was afraid it would affect his career;
counsel could have cared less what the evidence indicated; counsel was ineffective
in not bringing to the attention of the Court and jury that Petitioner did not violate
any protective order; counsel did not mention that the temporary restraining order
was ex parte; counsel knew Petitioner’s ex-wife was involved in the website which
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was used against Petitioner to convict him; counsel knew of facts that would
establish Petitioner’s wife was not a victim; counsel refused to produce records of
emails between Petitioner and his ex-wife; counsel failed to have Petitioner’s
divorce counsel testify; counsel knew a protective order was not in place;
The allegations against counsel are largely based on unsupported argument
by Petitioner. Petitioner speculates as to counsel’s reasons for failing to do certain
things Petitioner thought counsel should do. Significantly, a majority of the
complaints against counsel have to do with trial strategy, which does not rise to the
level of ineffective assistance of counsel under Strickland. Counsel has submitted
an affidavit of the events which surrounded his representation of Petitioner, and his
reasons therefore. Petitioner simply makes bold assertions and speculation of
counsel’s motives, abilities and ulterior reasons for the actions counsel took in his
representation of Petitioner. Without more, Petitioner has failed to establish that
the claims against counsel were unreasonable.
Additionally, Petitioner has failed to satisfy the prejudice prong of
Strickland. The record is replete with evidence of Petitioner’s actions and the
effect those actions had on his ex-wife and her family. While Petitioner claims that
the facts of this case are merely domestic relations, the jury was presented with
Petitioner’s testimony and that of his ex-wife. Petitioner has presented no evidence

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from which he can establish that the alleged failures of counsel were prejudicial in
light of the substantial evidence against Petitioner.
Ground Three: Ineffective assistance of counsel-extortion of sexual
relationship
Petitioner argues that counsel was ineffective because he failed to inform
and plead before the Court that he was married to the victim during some of the
time listed in the indictment. Petitioner argues that because of this, he could not
have been found guilty of extortion of something of value to be lost because he
was the lawful husband of the victim. Petitioner raised this issue on appeal in the
context of the sexual relationship was not a “thing of value.” The Eighth Circuit
found no issue with this sexual relationship falling within the perimeters of “thing
of value:
To be convicted under the interstate extortionate threat statute,
Petrovic must have intended to extort from M.B. “any money or other thing
of value.” 18 U.S.C. § 875(d). The district court instructed the jury, over
Petrovic's objection, that a “sexual relationship” could constitute a “thing of
value” under § 875(d). Petrovic maintains this was error that caused him to
be improperly convicted of one charge of violating § 875(d) for his
December 28, 2009 communications in which Petrovic threatened to harm
M.B.'s reputation if she ended their relationship. We typically review district
courts' rulings concerning contested jury instructions for an abuse of
discretion, and we reverse only when any error was prejudicial. See United
States v. Yielding, 657 F.3d 688, 708 (8th Cir.2011). However, when “[o]ur
review requires statutory interpretation, [it is] an issue of law that we
consider de novo.” United States v. Haas, 623 F.3d 1214, 1218 (8th
Cir.2010); see also United States v. Ho, 311 F.3d 589, 605 (5th Cir.2002).

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“Congress'[s] frequent use of ‘thing of value’ in various criminal
statutes has evolved the phrase into a term of art which the courts generally
construe to envelop[ ] both tangibles and intangibles.” United States v.
Nilsen, 967 F.2d 539, 542 (11th Cir.1992). Petrovic concedes a “thing of
value” under § 875(d) includes intangible objectives. Numerous intangible
objectives have been held to constitute things of value under a variety of
other statutes, including romantic pursuits and sex-related consideration. See
United States v. Barraza, 655 F.3d 375, 383–84 (5th Cir.2011) (sexual
favors); United States v. Kulla, 434 Fed.Appx. 268, 269 (4th Cir.2011)
(unpublished per curiam) (“the time and attention” of a younger woman with
whom defendant “pursue[d] a romantic relationship”); United States v.
Owens, 585 F.3d 1055, 1058 (7th Cir.2009) (anticipation of future sexual
encounters); United States v. Marmolejo, 89 F.3d 1185, 1191 (5th Cir.1996)
(conjugal visits); see also United States v. Girard, 601 F.2d 69, 71 (2d
Cir.1979) (listing precedents construing a “thing of value” to include
amusement, sexual intercourse or the promise of sexual intercourse, a
promise to reinstate an employee, an agreement not to run in a primary
election, or the testimony of a witness). But see Chappell v. United States,
270 F.2d 274, 276–78 (9th Cir.1959) (holding a “thing of value” under 18
U.S.C. § 641 does not extend to intangible items based on the statute's
unique legislative history).
These holdings reflect the principle that value is a subjective, rather
than objective, concept where “the focus of the ... term is to be placed on the
value which the defendant subjectively attaches” to what is sought to be
received. United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir.1986); see
also United States v. Williams, 705 F.2d 603, 622–23 (2d Cir.1983).
Although these cases differ in procedural postures and involve different
statutes than does the present case, we see no reason why a “thing of value”
under § 875(d) is more narrow than what the broad term of art encompasses
in other contexts. A defendant can attach value to a “sexual relationship” just
as readily as to sexual intercourse or other sex-related considerations, and a
“sexual relationship” may be an intangible “thing of value” one intends to
extort under § 875(d). The district court did not err by instructing the jury
that a “sexual relationship” could be a “thing of value” under § 875(d).
U.S. v. Petrovic, 701 F.3d 849, 857 -858 (8th Cir. 2012).

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No distinction is made by the Appellate Court that the “thing of value”
between Petitioner and his ex-wife ceases to be such because they happened to be
married during some of the relevant time.
Moreover, in his traverse, Petitioner argues that he was not attempting to
extort from his ex-wife anything of value, rather, he was merely asking for what
was “due him” in tangible terms of currency and furniture. Petitioner’s focus is,
however, misplaced. The “thing of value” at issue in this case was the extortion of
a sexual relationship.
Because the sexual relationship, without distinction, is indeed a “thing of
value,” counsel cannot be held to have been ineffective for failing to argue a sexual
relationship while married did not qualify as a “thing of value.”
Ground Four: 18 U.S.C. § 2261A(2)(A) is facially invalid
As Respondent correctly argues, Petitioner’s First Amendment challenge has
been litigated in this Court before Judge Adelman, before the undersigned and
before the Appellate Court, to no avail. Petitioner’s argument in this Motion is still
entirely meritless and needs no further discussion.
CONCLUSION
Based upon the foregoing analysis, Petitioner has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
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CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. No. 1], is denied.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 7th day of October, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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