Hemetek v. United States of America
Filing
120
MEMORANDUM OPINION AND ORDER as to Kathryn Ann Hemetek denying 112 Motion to Amend; the Court Adopts the [ 107 Proposed Findings and Recommendations; and Denies the 67 Motion/Application/Petition to Vacate, Set Aside or Correct Sentence (2255); Defendant's Motion for Bond 72 and Renewed Motion for Bond 87 are Denied as moot; Defendant did not object to the Magistrate's Proposed Findings and Recommendation concerning bond re: 108 Proposed Findings and Recommendations; the Court adopts the Magistrate Judge's conclusion Signed by Judge Robert C. Chambers on 9/6/2012. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
KATHRYN ANN HEMETEK
v.
CIVIL ACTION NO. 3:11-0579
(Criminal Action No. 3:08-00198)
UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
Pending is Movant Kathryn Ann Hemetek’s Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody pursuant to 29 U.S.C. § 2255 (ECF No. 67), and
several related motions: a Motion for Bond (ECF No. 72), a Renewed Motion for Bond (ECF
No. 87), and a Motion to Amend the Motion to Vacate (ECF No. 112).
This action was referred to the Honorable Cheryl A. Eifert, United States Magistrate
Judge, for submission to this Court of proposed findings of fact and recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted Proposed
Findings and Recommendations, and recommended that the Court deny the Motion to Vacate.
Movant Hemetek has submitted objections.
The Court has reviewed the pleadings and
objections de novo. For the reasons given below, the Court DENIES Hemetek’s objections.
The Court ADOPTS the Magistrate Judge’s Findings and Recommendations (ECF No. 107) and
DENIES the Motion to Vacate ( ECF No. 67).
1
I.
Background
Movant Kathryn Hemetek was charged in a one-count indictment with knowingly and
intentionally manufacturing 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1).
ECF No. 1. This charge carries a 60-month mandatory minimum sentence. Following a jury
trial, Hemetek was convicted of the charge (ECF No. 35) and sentenced to 60 months
imprisonment (ECF No. 45).
She appealed her conviction to the Fourth Circuit Court of
Appeals, which affirmed this Court’s judgment. ECF No. 63. Hemetek timely filed a Motion to
Vacate (ECF no. 63), and a Motion to Expand the Record (ECF No. 68), which were referred to
Magistrate Judge Cheryl Eifert (ECF No. 80). Hemetek also filed a Motion for Bond (ECF No.
67), and a Renewed Motion for Bond (ECF No. 87). Following an evidentiary hearing on the
Motion to Vacate and the Motions for Bond (ECF No. 105), the Magistrate Judge issued
Proposed Findings and Recommendations (“PF&R”), recommending that the Motion to Vacate
be denied, and this action dismissed (ECF No. 107). The Magistrate Judge also issued PF&R
recommending that the Motions for Bond (ECF Nos. 72, 87) be denied (ECF No. 108). Hemetek
timely filed Objections to the Magistrate Judge’s PF&R (ECF No. 115), and also filed a Motion
to Amend Original Motion to Vacate (ECF No. 112).
II.
(1)
Standards
28 U.S.C. § 2255.
Hemetek brings her claims under Title 28 United States Code section 2255, which
provides:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon 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
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impose such 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. Hemetek alleges that she is in custody in violation of the Constitution of the
United States because her trial counsel was ineffective, in violation of her Sixth Amendment
right to counsel. U.S. Const. amend. VI.
The pending motion to vacate was referred to Magistrate Judge Cheryl Eifert for
proposed findings and recommendations. Title 28 U.S.C. § 636(b)(1)(B) and Federal Rule of
Habeas Procedure 10 authorize a magistrate judge to conduct proceedings under § 2255. When a
Motion under § 2255 has been referred to the magistrate for proposed findings of fact and
recommendations for disposition, a party may file objections to those proposed findings and
recommendations. The district judge must then “determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or modify any
proposed finding or recommendation.” Fed. R. Habeas P. 8(b).
Additional steps are necessary when the magistrate judge’s proposed findings and
recommendations rely on new evidence developed in post-conviction proceedings, such as
testimony given at the evidentiary hearing held by the magistrate judge in this case. See ECF
No. 105.
At that hearing, Movant Hemetek and her trial counsel, T. Louie Price, gave
contradictory testimony about the advice and information Price gave Hemetek as trial counsel
and at her sentencing. Resolution of Hemetek’s § 2255 claims requires several credibility
determinations regarding these divergent testimonies. The Magistrate Judge determined that
Price’s testimony regarding the disputed facts was more credible.
challenge these credibility determinations.
3
The pending objections
Where, as here, “a party files objections to the magistrate judge’s credibility findings, the
district court must undertake de novo review of the record, which includes reading the transcript
of the evidentiary hearing, but a de novo evidentiary hearing is not required if the court adopts
the magistrate judge’s recommendation.” Wildermuth v. Furlong, 147 F.3d 1234, 1236 (10th
Cir. 1998); see also Wimmer v. Cook, 774 F.2d 68, 74 (4th Cir. 1985) (district court must review
record when performing de novo review of testimony heard by magistrate judge); Fuller v.
Warden, Maryland Penitentiary, 861 F.2d 263 at *1 (4th Cir. 1988) (unpublished) (“Our review
of a district court’s de novo review process is perhaps most critical when the district court must
review a magistrate’s credibility determinations which a party specifically challenges.”). The
required de novo review consists at least of a review of a transcript or recording of the testimony
at issue. See Wimmer, 147 F.3d at 76 (failure to review a transcript of the challenged testimony
reversible error); Fuller, 861 F.2d at *1 (court must review a recording or transcript of the
hearing). In this case, the Court’s de novo review of Hemetek’s objections has included a review
of the transcript of the evidentiary hearing at issue, filed June 11, 2012, at ECF No. 117. As the
Court adopts the Magistrate Judge’s proposed findings and recommendations, no second
evidentiary hearing is required. See Wildermuth, 147 F.3d at 1236.
(2)
Assistance of Counsel
Hemetek states several claims for habeas corpus relief, all of which assert that her trial
counsel was ineffective. The Sixth Amendment guarantees that in “all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. If an attorney’s performance falls below a certain minimum level of professional
competence, it may violate an accused’s right to representation. Strickland v. Washington, 466
U.S. 668, 685 (1984). A two-part test set forth in Strickland is used to determine whether an
4
attorney’s performance is so deficient that it violates a defendant’s right to effective assistance.
Id. at 687. The first prong of Strickland requires a movant to show that her attorney committed
an error that fell below a reasonable standard for professional competence.
Id.
The
reasonableness standard is an objective inquiry, which contemplates a wide range of acceptable
and professional representation. Id. at 689. The second prong of the test requires the petitioner
to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. In all cases, however, “[j]udicial
scrutiny of counsel’s performance must be highly deferential” and a reviewing court must avoid
second-guessing counsel’s decisions with the benefit of hindsight. Id. at 689.
III.
Hemetek’s Claims &Objections
Hemetek’s Motion to Vacate claims that her trial counsel was constitutionally ineffective
in several ways: 1) he failed to inform her of the mandatory minimum sentence attached to the
charge she faced, 2) failed to tell her about plea offers from the government; 3) failed to counsel
her such that she could receive the “safety valve” reduction at sentencing; 4) failed to object to
the court’s decision not to award the safety valve reduction at sentencing; and 5) failed to
reasonably present and cross-examine witnesses at trial. ECF No. 67 at 1-3. The Magistrate
Judge’s PF&R closely scrutinized and rejected each claim. Hemetek submits eight objections to
the PF&R, which this court reviews de novo.
(1)
Hemetek objects to the list of her contentions set out by the Magistrate Judge at pages 1011 of the P& FR. She states they exclude her contention that “trial counsel failed to effectively
5
advise Hemetek of the elements of the offense and otherwise counsel her so that she would be
eligible for ‘Safety Valve’ relief at sentencing.”
Hemetek’s original § 2255 Motion did not include an allegation that she was
misinformed about the elements of the offense. This issue, therefore, is not properly before the
Court as an objection and it is DENIED. Hemetek has, however, filed a Motion to Amend her
original § 2255 Motion to add this claim. The Motion to Amend is discussed later in this
opinion. To the extent this objection refers to “otherwise counseling” Hemetek so that she would
be eligible for safety valve relief at sentencing, the objection is repeated as objection number
eight and addressed in that section. See infra Part IV.
(2)
Hemetek objects to the finding that she fails to establish by a preponderance of the
evidence that trial counsel’s representation fell below an objective standard of reasonableness.
This objection is nonspecific, and as all of Hemetek’s claims are ineffective assistance of counsel
claims, the only fair reading of the objection is as an omnibus objection to all findings regarding
all her § 2255 claims. See Fed. R. Civ. P. 72(b) (“a party may file specific written objections to
the proposed findings and recommendations”) (emphasis added); Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982) (clear error rather than de novo review applies “when a party makes
general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.”). The Court finds no clear error in the
Magistrate Judge’s finding that Hemetek fails to establish by a preponderance of the evidence
that trial counsel’s representation fell below an objective standard of reasonableness. However,
in objections three, five, and eight, Hemetek has also more specifically objected to the
6
reasonableness determinations made regarding specific allegations of ineffective assistance of
counsel—objections which the Court reviews de novo.
(3)
Hemetek specifically objects to the finding that trial counsel’s strategy fell within the
range of acceptable professional conduct, alleging that trial counsel misunderstood the elements
of the charged offense. As with Hemetek’s first objection, this issue was not raised in the
original Motion to Vacate, and so is addressed instead as part of the Motion to Amend.
(4)
Hemetek objects to the finding that she did not suffer prejudice from counsel’s trial
strategy, specifically his failure to call her mother as a witness. The proposed testimony of her
mother was that Hemetek was off the property where marijuana was found frequently during the
summer of 2005, when the marijuana was being cultivated.
Hemetek alleges that in
“implementing counsel’s strategy it was important to show that Ms. Hemetek was involved in
activities off the farm.” ECF No. 115, at 2.
Hemetek’s allegations regarding counsel’s failure to call and cross-examine certain
witnesses fail both prongs of the Strickland test for ineffective assistance of counsel claims. The
first prong, reasonableness, requires a showing that counsel’s trial strategy was objectively
unreasonable. In general, reviewing habeas courts are cautioned to avoid second-guessing a trial
counsel’s assessment of proper litigation strategy. United States v. Terry, 366 F.3d 312, 317 (4th
Cir. 2004). Trial counsel’s decisions regarding witness examination are precisely the sort of
strategic decisions which receive “enormous deference” from reviewing courts. Id. Applying
this standard, Hemetek has not shown that trial counsel’s decision not to call her mother as a
witness was objectively unreasonable.
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Hemetek also fails to establish the second prong of the Strickland test, prejudice. The
Court agrees with the Magistrate Judge that Hemetek cannot show that she was prejudiced by
trial counsel’s decisions on the calling and questioning of witnesses. A showing of prejudice
under Strickland requires not just the demonstration of some possibility of damage to Hemetek’s
case at trial, but “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. Given the weight of
the evidence against Hemetek, which included the marijuana plants seized from her property,
evidence that she had previously ordered and tried to grow marijuana seeds, her own statements,
and the statements of her son, she has not shown a reasonable probability that her mother’s
testimony would have changed the outcome of the case. This objection is DENIED.
(5)
Hemetek objects to the finding that trial counsel informed her of the five year mandatory
minimum sentence applicable to the charge she faced.
Hemetek claims she was not told about her exposure to a five-year mandatory minimum
sentence, while trial counsel claims he told her about the mandatory minimum many times, and
attempted to secure a more favorable sentence through a plea agreement. The Magistrate Judge
heard testimony from Hemetek and trial counsel on this issue and credited trial counsel’s
testimony.
Reviewing the hearing transcript and the pleadings de novo, the Court agrees.1 Trial
counsel testified that he frequently represents clients facing charges carrying mandatory
minimum sentences (Tr. 47-48) and that he was aware of the specific mandatory minimum in
this case (Tr. 48). He also testified that attempted to secure plea agreements from the United
States Attorney’s office that would relieve his client from the mandatory minimum (Tr. 54-56),
1
Citations to the hearing transcript refer to the corrected hearing transcript filed June 11, 2012, at ECF No. 117.
8
testimony confirmed by the proposed plea agreement prepared by the United States Attorney’s
office shortly after Hemetek’s arraignment (ECF No. 106, Ex. 2, at 1-8) and email
communications regarding a potential information plea sent shortly before the trial (ECF No.
106, Ex. 2, at 9). His personal notes confirm that he explored what Hemetek’s guideline
sentence would be “if no stat. min.” ECF No. 106, Ex. 1, at 12. Further, when testifying, Price
displayed an explicit recollection of meeting with his client to discuss the benefits of a plea
agreement in relieving her of the mandatory minimum (Tr. 58).
In contrast, Hemetek’s testimony that Price never told her of the mandatory minimum
sentence consisted chiefly of repeated assertions that he simply never mentioned the sentence.
See, e.g., Tr. 10, 11. She attempted to bolster these assertions with testimony from two friends,
Walter Farmer and James Wilson, who stated that they went with Hemetek to meet with Price,
and that Price never mentioned a mandatory minimum sentence in those meetings. Tr. 33, 39.
Although Hemetek asserts that either Wilson or Farmer attended all of her in-person meetings
with Price (Tr. 10), Price, Farmer, and Price all contradicted this assertion in their testimony.
Tr. 35 (Farmer knew that Hemetek met with Price at other times, without him); Tr. 42 (Wilson
met with Hemetek and Price just once); Tr. 58 (Price gave details of at “least one very specific
conversation” about Hemetek’s possible sentence where no third parties were present).
Additionally, Price testified that he generally did not discuss whether a client would plead guilty
with third parties present (Tr. 55-56), a practice that would have largely precluded discussion of
the mandatory minimum and ways to avoid it with Farmer or Wilson present. Price’s testimony
is consistent with the evidence presented at the hearing. Hemetek fails to put forth any proof
other than her own bare assertions that Price, an experienced defense attorney, was either
9
unaware of the statutory minimum sentence or willfully failed to inform her of it. The Court
therefore DENIES Hemetek’s objection.
(6)
Hemetek objects to the “assertion” in the PF&R that “to this day, [Hemetek maintains]
that she is entirely innocent of cultivating the marijuana plants found on her property in 2005.”
Hemetek has given varying accounts of what she knew about the marijuana on her
property. At least as late as her sentencing hearing, she did not admit that she was involved in
growing marijuana, or even that she knowingly allowed someone else to grow and dry marijuana
on her farm. Tr. 27. At the post-conviction evidentiary hearing, Hemetek testified that she
“knew” Mike Neal was growing marijuana while living at her farm, but thought the plots of
marijuana were located elsewhere. Tr. 16. In the same testimony, she stated that she wanted
Neal to testify at her trial in order to admit that he, and not she, was responsible for the
marijuana. Tr. 15. Further, even if Hemetek had admitted her conduct at the evidentiary
hearing, acceptance of responsibility is determined at the time of sentencing, and so any postsentencing admission would have no effect on her conviction and sentence. Therefore, the Court
FINDS that Hemetek has not admitted involvement with cultivating the marijuana found on her
property and DENIES this objection.
(7)
Hemetek objects to the “implied finding” that she was not still receiving threats from
Mike Neal as of the date of the trial. This implied finding was part of the Magistrate Judge’s
determination that Hemetek’s explanation for why she did not accept responsibility for her crime
was not credible. Although Hemetek’s post-sentencing explanation for why she did not accept
responsibility has no effect on her eligibility for acceptance of responsibility, the Court
10
nonetheless reviews de novo the hearing transcript relating to this explanation. This testimony is
not credible in that Hemetek has given any number of reasons for not accepting responsibility,
including not only the threats from Neal, but also the alleged failure of her counsel to explain the
potential sentence reduction associated with accepting responsibility.
Therefore, the Court
DENIES this objection.
(8)
Hemetek objects to the failure of the Magistrate Judge to find that trial counsel was
ineffective in failing to effectively counsel her so that she would be eligible for relief from the
mandatory minimum under 18 U.S.C. § 3553(f), the “safety valve.”
Although the stated objection is brief, the Court understands Hemetek to claim that she
was not told that by pleading guilty or accepting responsibility at sentencing, she might be have
been exempted from the mandatory sentence through the “safety valve” provision of 18 U.S.C. §
3553(f).
The Court has already determined that Hemetek was told of the mandatory minimum
sentence in discussing Hemetek’s sixth objection, above.
Similarly, the Court finds trial
counsel’s testimony credible insofar as he claims to have told Hemetek about possible plea
agreements for sentences less than the mandatory 60 months. This testimony is bolstered by trial
counsel’s notes and his email communications with the United States Attorney’s office. As with
the mandatory minimum sentence, trial counsel’s testimony that he did not routinely discuss
guilty pleas with third parties is credible, and so the testimony by Hemetek’s friends and family
that they did not hear of a plea agreement during their meetings with trial counsel does not
discredit trial counsel’s testimony. The Court finds that there were plea opportunities presented
to Hemetek in this case, which she did not accept.
11
Hemetek also appears to allege that trial counsel either did not understand or did not tell
her about of the “safety valve.” The “safety valve” statute provides for relief from a mandatory
minimum sentence if a convicted individual meets five criteria:
“(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to
any person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in section 408 of the Controlled
Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant
has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant or useful other
information to provide or that the Government is already aware of
the information shall not preclude a determination by the court that
the defendant has complied with this requirement.”
18 U.S.C. § 3553(f).
Two of these requirements are at issue in this matter. The first, criminal history points,
and the fifth, commonly called “acceptance of responsibility.”
Hemetek alleges that counsel misunderstood her criminal history points and therefore
erroneously believed she would not be eligible for the safety valve. However, the Court finds
that Price acted within the bounds of reasonable representation in regard to Hemetek’s criminal
history points. At the evidentiary hearing, Price admitted that he had believed Hemetek likely
12
had two criminal history points, but also knew that the point total would not be finalized until a
presentence report was prepared by the United States Probation Office. Tr. 53, 67, 69-71.
Ultimately, the probation office determined that Hemetek had only one criminal history point.
Although Hemetek argues that this incorrect prediction demonstrates Price’s misunderstanding
of the safety valve in general, she does not show that Price misunderstood how criminal history
points worked, nor does she show that any prejudice resulted from Price’s alleged
misunderstanding.
The sentencing court, not Price, determined Hemetek’s points, and it
ultimately determined that she only had one. With one point Hemetek would have been eligible
for the safety valve, if she had met the other four requirements. As Hemetek cannot show that
any prejudice resulting from Price’s purported mistakes, she has no Strickland claim.
More central to Hemetek’s objection is the argument that Price either misunderstood or
failed to inform her of the “acceptance of responsibility” requirement of the safety valve. Absent
such advice, she alleges, she could not avail herself of the reduction by pleading guilty or by
admitting responsibility at sentencing.
The fifth requirement of the safety valve, acceptance of responsibility, requires a
defendant to provide all information relating to her criminal activity, and cooperate fully with the
government. 18 U.S.C. § 3553(f)(5). Price’s testimony demonstrates that he knew of and
understood the acceptance of responsibility requirement of the safety valve.
He correctly
understood that acceptance of responsibility could be obtained even if a defendant did not plead
guilty, and testified that he explained that fact to Hemetek. Tr. 63.
Hemetek claims that she was not told of the opportunity to accept responsibility and
escape the mandatory minimum. Tr. 11. She further claims that she would have accepted
responsibility had she been told of it, answering in the affirmative at the evidentiary hearing
13
when her attorney asked, “if you had known that by fully cooperating with the United States you
could have avoided the five-year mandatory sentence, would you have done that?” Tr. 21. This
testimony is not credible for several reasons.
First, Hemetek’s own statements at sentencing undermine this claim. At sentencing, she
stated that she could not “say that I did something I didn’t do,” a clear refusal to accept
responsibility. Sentencing Hrg. Tr., ECF No. 58, at 13. She also stated, after conferring with her
attorney, “I mean, I accept the responsibility because of the jury sentencing,” id., an indication
that she was in fact told that “acceptance of responsibility” was something she should
demonstrate at sentencing.2 Second, acceptance of responsibility was mentioned by the judge at
her sentencing, and in the presentence report, which defendant admits to reviewing. Sentencing
Hrg. Tr., ECF No. 58, at 14; Evidentiary Hrg. Tr., ECF No. 117, at 19. These statements
discredit Hemetek’s statement that she was unaware of the acceptance of responsibility
reduction.
Third, Price’s actions throughout the pretrial, trial, and sentencing phases of
representation bolster his testimony that he knew of and informed the defendant of the safety
valve. Price sought several plea agreements for the defendant. ECF No. 106, Ex. 2, at 1, 9.
Although the safety valve reduction may be available to a defendant who does not plead guilty, a
plea agreement may also offer a release from a mandatory minimum sentence. That Price sought
2
THE DEFENDANT: I just know that the whole truth didn't come out and that I
did not commit this crime. So I couldn’t say that I did something that I didn't do,
and I just think that it was unfair that I was singled out for this offense.
(Mr. Price and the defendant conferred privately off the record.)
THE DEFENDANT: I mean I accept the responsibility because of the jury
sentencing. And I just want to be close to my family at Alderson.
Sentencing Hrg. Tr., ECF No. 58, at 13.
14
such an agreement in the face of Hemetek’s uncertain criminal history, which may have made
her ineligible for the safety valve, evinces understanding rather than ignorance of the safety
valve provision. See Tr. 53, 55, 67. For these reasons, the Court FINDS that Price did not
unreasonably fail to counsel Hemetek such that she might qualify for the safety valve reduction.
Thus, Hemetek does not establish the first prong of a Strickland claim.
Hemetek also fails to establish the second prong of a Strickland claim: a reasonable
probability that but for counsel’s failure, the result would have been different. To this day,
Hemetek has not fully provided information to the government about her conduct or any of the
other people allegedly involved in her crime, a requirement for receiving acceptance of
responsibility. Tr. 26-27. Although she testified that she would have done so if she knew of its
potential benefit (Tr. 21), she also claims in her objections that she was in fact under threat from
Mike Neal, implying that she could not fully cooperate regarding his involvement with the
marijuana cultivation because of those threats. Tr. 18. Hemetek did attempt to cooperate against
Mr. Neal in regard to later a stolen property crime in Ohio (Tr. 17), but never provided the
United States with full information about his—or her own—participation in the marijuana
cultivation. Tr. 27; see United States v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996) (to qualify for a
safety valve reduction, a defendant must “demonstrate, through affirmative conduct, that [she
has] supplied truthful information to the government” before sentencing.). Despite asserting that
she would have admitted responsibility at sentencing if she had been aware of its benefit under
the safety valve, Hemetek still contends that she did not “actually commit the crime,” a position
inconsistent with accepting responsibility. Tr. 19; 27-28.
Further, at the time of sentencing, neither the probation office nor the Court found
defendant a good candidate for accepting responsibility. ECF No. 106, Ex. 1, at 7 (probation
15
office recommendation to deny safety valve); Sentencing Hrg. Tr. 15, ECF No. 58 (court
explaining to Hemetek that to qualify for acceptance of responsibility she was required to
“accept responsibility for the crime and provide truthful information to the Government about
it,” and telling her: “I’m puzzled that it had to go this far and that you chose this route.”). Given
the extensive evidence of Hemetek’s ongoing unwillingness to accept responsibility, the
probation office’s recommendation that Hemetek not receive acceptance of responsibility, and
the Court’s position that Hemetek had not accepted responsibility, Hemetek has not
demonstrated a reasonable probability that she would have sought or been awarded acceptance of
responsibility had counsel informed her of it and advocated for its application.
For these reasons, the Court FINDS that Price did not unreasonably fail to counsel the
Hemetek so that she could receive the safety valve. Further, even if she could show that Price
did not adequately counsel her, she has not shown a reasonable probability that but for this
advice, the outcome would have been different—that she would have received the safety valve.
Without making some showing of prejudice, she can make no Strickland claim. Hemetek fails to
establish either prong of the Strickland standard with this objection, and so it is DENIED.
IV.
Motion to Amend
Hemetek seeks to amend her § 2255 petition to assert an additional ground for relief: that
her counsel, Mr. Price, did not understand or effectively explain the elements of the charged
crime. “Burdened by this misunderstanding,’” she asserts, counsel failed to adequately explain
the charge to her, and did not pursue a plea to a lesser charge. ECF No. 113, at 4.
Under Federal Rule of Civil Procedure Rule 15(a), leave to amend shall be given freely,
absent bad faith, undue prejudice to the opposing party, or futility of amendment. United States
16
v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000);1 see also Laber v. Harvey, 438 F.3d 404, 427 (4th
Cir. 2006) (motion to amend may be denied if futile); United States v. Davis, 337 Fed. App’x.
300, 301 (4th Cir. 2009) (unpublished) (applying futility doctrine to a motion to amend a § 2255
motion). Respondent contends that the motion to amend is futile, and should , therefore, be
denied.
Hemetek responds that denying the motion to amend as futile is inappropriate at this
juncture, and that she should be afforded the opportunity to explore her claims further. ECF No.
119, at 2 (“if the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the merits.”) (quoting
Forman v. Davis, 371 U.S. 178, 182 (1962)). In this case, however, the proposed basis for the
motion to amend was explored, in depth, at the evidentiary hearing. See, e.g., Tr. 89 (crossexamination of trial counsel about elements of the offense); Tr. 95, 98 (defense counsel argument
that trial counsel did not understand elements of the offense); Tr. 60 (trial counsel testifying that
he discussed the elements of the crime with Hemetek and that the involvement of other people
was discussed as a defense to the crime); Tr. 13, 15, 19, 26, 28 (direct examination of Hemetek
about her understanding of the elements of the crime). Exploration of this issue could only
conceivably result in a hearing being held with the same witnesses, on the same topic of trial
counsel’s communication with Hemetek about the charges she faced and her potential exposure
if convicted. Therefore, the Court finds that further factual development of this argument is
unnecessary.
1
Pursuant to Rule 12 of the Rules Governing Section 2255 Proceedings, “courts have typically applied Federal
Rule of Civil Procedure 15 to the amendment of a 2255 motion.” Pittman, 209 F.3d at 317.
17
Reviewing the ample record in this case, it is apparent that the proposed amended claim
is futile. Hemetek cannot show by that counsel acted in an objectively unreasonable manner by
misunderstanding or misinforming her about the elements of the marijuana cultivation charge.
At the evidentiary hearing Hemetek repeatedly asserted that trial counsel misinformed
her of the elements of the charge against her, and told her that she could not be convicted unless
the jury found that she and she alone had cultivated the marijuana. See, e.g., Tr. 13, 15, 19, 26,
28. In the Motion to Amend she attempts to buttress this allegation by pointing to several
statements made by trial counsel at the hearing. First, on cross-examination, trial counsel agreed
with the statement, “you concluded that the government had to show that she was the person who
actually grew the marijuana.” Tr. 89. Also, trial counsel testified that his theory of defense was
“that she didn’t have the ability to do this on her own, that she didn’t do it, and that somebody
else had done it.” Tr. 74. Hemetek argues that these statements show that counsel failed to
understand that Hemetek “could be convicted as an aider and abettor” (ECF No. 113, at 4),
thereby underestimating what the government had to prove to make its case against her. See,
e.g., United States v. Duke, 409 F.2d 669, 671 (4th Cir. 1969) (an individual may be convicted of
aiding and abetting under an indictment charging only a principal offense).3
These arguments do not succeed. Trial counsel’s testimony that he understood and
informed Hemetek of the elements of the offense is more credible than Hemetek’s contrary
3
Although Hemetek could have been convicted of aiding and abetting under the indictment in this case, the
government’s theory was that she was a principal, neither party sought an instruction on aiding and abetting, and
only Hemetek put forth the possibility that others were involved in the cultivation. The jury found Hemetek guilty
as a principal and had a substantial basis for that determination. See, e.g., United States v. Feury, 993 F.2d 1540 at
*2 (4th Cir. 1993) (table). (examining facts similar to the underlying crime in this matter and concluding, “There
was also evidence to support the inference that, as resident of the house, it was the Appellant who cultivated the
marijuana in the fields behind the house. The fields of marijuana were directly behind the house and were
surrounded by hillsides with no neighbors. There were paths leading from the house to the fields; the only water
source for the fields was from the house . . . a brown paper bucket that was found in the field matched another one
found inside the house. . . . Thus it was fair for the jury to infer that the fields themselves were cultivated by the
Appellant as resident of the house.”)
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testimony.
Further, trial counsel’s statements at the evidentiary hearing do not reveal a
misunderstanding of the law. He agreed on cross-examination that “the government had to show
that she was the person who actually grew the marijuana.” Tr. 89. This is a correct statement of
the law. The indictment in this case alleges that defendant Hemetek knowingly and intentionally
manufactured marijuana.
ECF No. 1.
This offense does not require that Hemetek alone
committed the crime, nor does it require that she worked with others to do so. Instead, it simply
requires that Hemetek was purposefully involved in the criminal conduct. See 21 U.S.C. §
841(a)(1).
Trial counsel’s choice of defense strategy also does not demonstrate that he
misunderstood the crime. Trial counsel stated that the defense strategy was to try to implicate
others in the scheme. Tr. 74. Throughout the evidentiary hearing and at other times in this case
Hemetek has insisted that other people were responsible for the cultivation. In pursuit of
reasonable doubt, trial counsel advanced this theory before the jury, attempting to assign the
cultivation to Vaughn Johnson, Hemetek’s ex-husband, or Michael Neal, a former boyfriend. Tr.
76 (“the defense was that she was not the one that was growing the marijuana. We were trying
to put it on somebody else.”). The strategy of suggesting to the jury that someone else might be
responsible for the crime is neither unreasonable nor evidence that counsel misunderstood the
charged crime. The Court finds that Hemetek fails to establish that counsel behaved outside the
ambit of reasonable professional behavior, and thus fails to satisfy the first prong of the
Strickland standard. Therefore, the Court FINDS that amending the § 2255 Motion to add a
claim based on trial counsel’s purported misunderstanding of the statute would be futile. The
Court DENIES the Motion to Amend.
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V.
Conclusion
Having DENIED the Motion to Amend (ECF No. 112) and Hemetek’s Objections (ECF
No. 115), the Court ADOPTS the Magistrate’s Proposed Findings and Recommendations (ECF
No. 107) and DENIES the Motion to Vacate (ECF No. 67). Defendant’s Motion for Bond (ECF
No. 72) and Renewed Motion for Bond (ECF No. 87) are DENIED as moot. Defendant did not
object to the Magistrate’s Proposed Findings and Recommendations concerning bond (ECF. No.
108). The Court adopts the Magistrate Judge’s conclusion.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.
ENTER:
September 6, 2012
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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