United States District Court, S.D. Georgia, Waycross Division
CORTEZ T. HODGES, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
Cortez Hodges (“Hodges”), who is currently
incarcerated at the Federal Correctional Institution in
Ashland, Kentucky, filed a 28 U.S.C. § 2255 Motion to
Vacate, Set Aside, or Correct his Sentence. Doc. 1.
Respondent filed a Response, doc. 3, to which Hodges filed a
Reply, doc. 6. For the reasons which follow, I
RECOMMEND the Court DENY
was indicted in this District on charges of possession with
intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1); possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c);
and possession of a firearm with an obliterated serial
number, in violation of 18 U.S.C. §§ 922(k) and
924(a)(1)(B). United States v. Hodges, 5:13-cr-15
(“Crim. Case”), Doc. 1. Hodges' trial
counsel, Jared Roberts, filed several pretrial motions,
including a motion to suppress evidence seized from
Hodges's residence and evidence obtained from a search of
a computer and a motion in limine to prohibit evidence of
prior crimes, wrongs, or other acts. Crim. Case, Docs. 16-24.
The United States Magistrate Judge conducted a hearing on
Hodges's motion to suppress and recommended the motion be
denied. Crim. Case, Doc. 39. The Court adopted this
recommendation as the opinion of the Court over Hodges's
objections. Crim. Case, Doc. 60. The Court also denied
Hodges's motion in limine. Crim. Case, Doc. 44. After
proceeding to a jury trial, Hodges was convicted of the first
three counts of the indictment and acquitted on the
obliterated serial number count. Crim. Case, Doc. 82. Mr.
Roberts filed a renewed motion for judgment of acquittal and
a motion for new trial on Hodges's behalf. Crim. Case,
Docs. 90, 91. After a hearing, the Honorable Lisa Godbey Wood
denied these motions. Crim. Case, Doc. 112. Judge Wood
sentenced Hodges to a total term of 123 months'
imprisonment, which was comprised of a term of 60 months as
to count 1 (possession with intent to distribute marijuana),
a concurrent 63-month term as to count 2 (possession of a
firearm by a convicted felon), and a consecutive 60
months' imprisonment as to count 3 (possession of a
firearm in furtherance of a drug trafficking offense). Crim.
Case, Doc. 119. Hodges filed a notice of appeal. Crim. Case,
Doc. 121. Hodges also filed a pro se motion to reduce his
sentence, which this Court denied. Crim. Case, Docs. 142,
Eleventh Circuit Court of Appeals affirmed Hodges's
convictions, finding this Court did not err in denying his
motion to suppress and motion for acquittal and did not abuse
its discretion by admitting evidence of Hodges's prior
convictions of marijuana with intent to distribute and
possession of a firearm during the commission of a felony.
United States v. Hodges, 616 Fed.Appx. 961 (11th
Cir. 2015). The Eleventh Circuit also determined this Court
did not abuse its discretion in not bifurcating Hodges's
trial, in refusing to admit evidence of prior convictions of
two convicted felons who had access to Hodges's house, or
admitting videos found on a computer and photographs produced
from those videos. Id. The Eleventh Circuit found
that, although the Government arguably made an improper
remark during closing arguments, such error did not affect
Hodges's substantial rights. Id. Hodges filed a
petition for writ of certiorari, and the United States
Supreme Court denied his petition. Doc. 1 at 2.
timely filed § 2255 Motion, Hodges makes several
allegations of ineffective assistance of counsel. Hodges
contends his trial counsel did not have proper exculpatory
witnesses to testify at trial, and he did not challenge the
indictment as multiplicitous. Id. at 4. Hodges also
contends his trial counsel did not challenge “the scope
of the warr[a]nt under the fruit of the pois[o]nous
tree” or the illegal search and seizure. Id.
Hodges asserts his counsel did not challenge his sentence
under Amendment 599 of the Sentencing Guidelines.
Id. In addition, Hodges contends his sentence was
imposed in violation of Amendment 599 and double jeopardy
principles. Id. at 5. Moreover, Hodges maintains his
sentence violates the holdings in Johnson v. United
States, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016). Id. at 6. The
Government responds that Hodges's Motion should be
Court addresses the parties' contentions in turn.
Hodges's Ineffective Assistance of Counsel
defendants have a right to effective assistance of counsel at
all critical stages of the proceedings. Strickland v.
Washington, 466 U.S. 668 (1984). This right extends to
the right to proceed to trial, see Carver v. United
States, 722 Fed.Appx. 906 (11th Cir. 2018), and during
sentencing proceedings, Glover v. United States, 531
U.S. 198, 202 (2001).
prevail on a claim of ineffective assistance of counsel, the
defendant must demonstrate (1) his counsel's performance
was deficient, i.e., the performance fell below an objective
standard of reasonableness, and (2) he suffered prejudice as
a result of that deficient performance. Id. at
685-86. The deficient performance requirement concerns
“whether counsel's advice was within the range of
competence demanded of attorneys in criminal cases.”
Hill v. Lockhart, 474 U.S. 52, 56 (1985). There is a
strong presumption that counsel's conduct fell within the
range of reasonable professional assistance. Davis v.
United States, 404 Fed.Appx. 336, 337 (11th Cir. 2010)
(citing Strickland, 466 U.S. at 686). “It is
petitioner's burden to ‘establish that counsel
preformed outside the wide range of reasonable professional
assistance' by making ‘errors so serious that
[counsel] failed to function as the kind of counsel
guaranteed by the Sixth Amendment.'” LeCroy v.
United States, 739 F.3d 1297, 1312 (11th Cir. 2014)
(quoting Butcher v. United States, 368 F.3d 1290,
1293 (11th Cir. 2004) (alteration in original)).
“Showing prejudice requires petitioner to establish a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. (internal citation
omitted). “The prejudice prong requires a petitioner to
demonstrate that seriously deficient performance of his
attorney prejudiced the defense.” Id. at
1312-13. “The likelihood of a different result must be
substantial, not just conceivable.” Harrington v.
Richter, 562 U.S. 86, 112 (2011). “In evaluating
performance, ‘counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.'” LeCroy, 739 F.3d at 1312
(quoting Strickland, 466 U.S. at 690). “If a
petitioner cannot satisfy one prong, [a court] need not
review the other prong.” Duhart v. United
States, 556 Fed.Appx. 897, 898 (11th Cir. 2014).
“The burden of persuasion is on a section 2255
petitioner to prove, by a preponderance of the competent
evidence, both that counsel's performance was
unreasonable, and that he was prejudiced by that
performance.” Demar v. United States, 228
Fed.Appx. 940, 950 (11th Cir. 2007).
court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct.” Strickland, 466 U.S.
at 690. “The cases in which habeas petitioners can
properly prevail on the ground of ineffective assistance of
counsel are few and far between.” James v.
Sec'y, Dep't of Corr., No. 8:12-CV-1363, 2013 WL
5596800, at *3 (M.D. Fla. Oct. 11, 2013) (citing Waters
v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995));
Body v. United States, Crim. Action No. 10-0232,
2013 WL 2470660, at *20 (S.D. Ala. June 6, 2013) (citing
Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.
Counsel's Failure to have Proper Exculpatory Witnesses
argues Mr. Roberts failed to interview or call “crucial
defense witnesses” during the trial of his case. Doc.
1-2 at 8. According to Hodges, he had three witnesses
(Jacqueline Riley, Ronnie Moore, and Jermarol Mizell) who
were willing to testify on his behalf, and these witnesses
would have “proved” the black bookbag and its
contents were not recovered from the property which was the
subject of the search warrant. Id. at 8-9. Hodges
maintains Mr. Roberts's failure to secure the testimony
of these three “very essential defense witnesses”
and the owner of the property where he contends the evidence
was recovered led to the Court approving the Government's
Rule 404(b) evidence. Id. at 9.
response, the Government states Hodges's attorney was not
ineffective for failing to use these three witnesses in
support of any suppression motion or during the trial of this
case. Doc. 3 at 3. The Government asserts that had the
bookbag been located on a lot adjacent to Hodges's lot,
as he now contends, Hodges would not be able to challenge the
bookbag's seizure or search. In addition, the Government
maintains that, despite these witnesses' putative
testimony, officers found Mason jars and baggies with
marijuana residue in Hodges's bedroom that matched the
Mason jars of marijuana found in the bookbag, as well as
ammunition that matched the calibers of three of the four
firearms found in the bookbag, connecting Hodges to the
bookbag and its contents. Id. at 3-4, n.2. Thus, the
Government contends Mr. Roberts was not ineffective for
failing to call these three witnesses.
of uncalled witnesses are not favored, because the
presentation of testimonial evidence is a matter of trial
strategy and because allegations of what a witness would have
testified are largely speculative.” Buckelew v.
United States, 575 F.2d 515, 521 (5th Cir. 1978).
“Which witnesses, if any, to call, and when to call
them, is the epitome of a strategic decision that will
seldom, if ever, serve as grounds to find counsel
constitutionally ineffective.” Conklin v.
Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004).
“To show that counsel's conduct was unreasonable,
defendant must demonstrate that no competent counsel would
have taken the action that his counsel did take.”
Miranda v. United States, 433 Fed.Appx. 866, 869
(11th Cir. 2011) (citing Chandler v. United States,
218 F.3d 1305, 1315 (11th Cir. 2000)). “‘It is
well-settled in this Circuit that a petitioner cannot
establish an ineffective assistance claim simply by pointing
to additional evidence that could have been
presented.'” Holt v. United States, No.
2:08-CR-138, 2014 WL 3809108, at *3 (M.D. Fla. Aug. 1, 2014)
(quoting Hall v. Thomas, 611 F.3d 1259, 1293 (11th
support of his assertion that Mr. Roberts was ineffective for
failing to call exculpatory witnesses, Hodges submitted
affidavits from the three individuals he claims would have
provided exculpatory testimony. Hodges's mother,
Jacqueline Riley, declared she would visit Hodges
“often” at 130 Terrell Road in Douglas, Georgia,
and did not observe a black bag containing guns, large
amounts of marijuana, or scales, nor did she see Mason jars
at the house. Doc. 1-1 at 1. Ms. Riley also declared she
was informed of the property lines when she bought the house.
According to Ms. Riley, had Mr. Roberts called her to do so,
she would have testified about what she saw at the house when
she visited Hodges and about the property
lines. Id. at 1-2. Hodges also submitted
the affidavits of Ronnie Moore and Jermarol Mizell. Both Mr.
Moore and Mr. Mizell declared they would have testified they
never saw a black bag containing weapons, large amounts of
marijuana, or scales, and did not see any Mason jars in the
house. Id. at 3, 5. These two men also declared they
would have testified that the “black bag with all the
illegal items” did not belong to “any of
case, the jury convicted Hodges based on the testimony and
evidence presented. Specifically, Brian Crawford, formerly
with the Coffee County Sheriff's Office, testified he
encountered marijuana “hundreds of times.” Crim.
Case, Doc. 101 at 26. Mr. Crawford stated he and the other
officers on the scene of Hodges's residence conducted a
search pursuant to a warrant, and the K-9 handler told Mr.
Crawford the canine had “overwhelming responses in the
back right bedroom.” Id. at 30. Based on this
information, officers began searching that bedroom and
discovered identification materials bearing Hodges's
name. Id. & at 32. Mr. Crawford testified a
shoebox containing Mason jars and Ziploc bags with marijuana
residue was discovered in that bedroom, as well as a dollar
bill with “DCB” (“Da Cartel Boys”)
and “Gator” written on it. Id. at
31. Mr. Crawford also testified that while he was searching
the bedroom he believed to be Hodges's, another officer
told him officers “had located a black book bag . . .
just back there in the back yard behind some dogs at the
property line, about twenty-five yards from the back
door.” Id. at 32. Mr. Crawford stated there
were three glass jars containing “suspected marijuana[,
]” a set of digital scales, and four handguns in that
bag. Id. Mr. Crawford asserted that when officers
are conducting a search of the outside of a house, they look
at the grass to see if somebody had walked on it several
times, as his experience and knowledge led him to know that
“drug dealers like to hide their stuff outside of their
residence[s].” Id. at 45. After officers
finished with the bookbag, Mr. Crawford stated the K-9
officer demonstrated a positive odor response on a 1994
Acura, which was in Hodges's name. Id. at 33. A
search of the car revealed the presence of a small bag of
suspected marijuana and “Apple baggies, ” which
are “commonly used to . . . put marijuana in[, ]”
in the glove compartment. Id. Mr. Crawford testified
he then went to finish his search in the bedroom believed to
be Hodges's and found a small amount of marijuana in a
plastic bag, a grinder, which Mr. Crawford described as a
device “commonly use[d]” to grind up marijuana
before it is smoked, a set of digital scales, “some .38
revolver bullets, ” and another plastic bag with what
appeared to be marijuana residue. Id. at 34-35. In
another room, Mr. Crawford discovered an open laptop with an
external hard drive and a thumb drive. Id. at 35.
The Government tendered 64 exhibits detailing Mr.
Crawford's testimony into evidence and the defense
tendered three defense exhibits, which the Court admitted
without objection. Id. at 48-50; Doc. 101-1 at 1-6,
addition, Detective James Hersey, the evidence custodian for
the Coffee County Sheriff's Office and a certified expert
on marijuana identification, tested the recovered materials
believed to be marijuana in this case. Doc. 101-1 at 17.
Detective Hersey testified that the results of the tests he
ran were that the material inside the packages depicted in
the Government's trial exhibits tested positive for
marijuana, the material appeared to be marijuana, and the
odor from that material is associated with marijuana.
Id. at 18.
Anthony Banks with the Georgia Bureau of Investigation
testified he was asked to conduct a search of an HP computer
and external hard drive believed to be Hodges's based on
the second search warrant obtained in this case. Crim. Case,
Doc. 101-2 at 6-7. Agent Banks stated he conducted a key word
search for “marijuana” on these devices, which
yielded 53 images, 27 videos, and approximately 25 pages of
data. Id. at 7. Agent Banks described the videos as
“rap videos where [Hodges] was, at times, brandishing
guns and showing money . . . .” Id. The
Government played three of these videos to the jury.
Id. at 14. Judge Wood provided a limiting
instruction to the jury that they could not consider evidence
of similar acts Hodges may have committed to determine
whether Hodges committed the acts charged in the indictment;
however, the jury could use that evidence to decide whether
Hodges had “the state of mind or intent necessary to
commit” the charged acts or committed the charged acts
by accident or mistake if the jury were to find beyond
reasonable doubt from other evidence Hodges committed the
charged acts. Id. at 15-16.
Government presented testimony and evidence from the police
officers who conducted the search of Hodges's residence,
car, and the laptop and external hard drive believed to be
Hodges's. This evidence revealed that marijuana and
materials associated with its distribution were recovered
from Hodges's bedroom and car and that evidence of Hodges
having possession of a firearm, despite his status as a
convicted felon, and using firearms in connection with his
drug trafficking offense was recovered as a result of the
search of Hodges's property and computer. In fact, Hodges
raised sufficiency of evidence arguments on appeal, and the
Eleventh Circuit determined sufficient evidence was produced
at trial to support Hodges's convictions on all three
counts. Hodges, 616 Fed.Appx. at 967-69.
Additionally, the Eleventh Circuit stated the evidence
obtained from Hodges's house matched that found in his
backyard in the bookbag such that a reasonable jury could
infer his possession of firearms. Id. at 968. The
Eleventh Circuit also noted this Court did not abuse its
discretion in admitting 404(b) evidence, as Hodges placed his
intent at issue with respect to the drug offense, and his
prior conviction on a weapons charge made “it more
likely Hodges intended to exercise control over those
guns.” Id. at 965.
Roberts was not ineffective for failing to call these three
individuals as witnesses during the trial of this case. Even
if Mr. Roberts had called these three witnesses to testify
during Hodges's criminal trial, Hodges cannot show that
he was prejudiced by the failure to call these
witnesses. At most, the testimony of these witnesses
would have presented credibility determinations for the jury,
as these witnesses declared they were willing to testify they
did not see a black bag, weapons, or drug paraphernalia at
Hodges's residence for the very short period of time
Hodges resided at 130 Terrell Road, not that the drug
paraphernalia and weapons were not Hodges or belonged to
another person. Doc. 1-1 at 1-6. Even considering Messrs.
Moore and Mizell's statements that they would have
testified the black bookbag did not belong to “any of
us” as disclaiming ownership of the black bookbag on
Hodges's behalf, this testimony would not have
necessarily exculpated Hodges. As detailed above, the
Government presented evidence and testimony that the jury
found, beyond a reasonable doubt, that the weapons and drug
paraphernalia-regardless of where they were
discovered-belonged to Hodges. There was ample evidence of
Hodges's guilt from which a jury could conclude beyond a
reasonable doubt that Hodges was guilty of committing three
of the four charged offenses. See Fortenberry v.
Haley, 297 F.3d 1213, 1228-29 (11th Cir. 2002)
(“It is worth reiterating that the absence of
exculpatory witness testimony from a defense is more likely
prejudicial when a conviction is based on little record
evidence of guilt. . . . In this case, although there was no