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Hodges v. United States

United States District Court, S.D. Georgia, Waycross Division

October 25, 2019

CORTEZ T. HODGES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         Movant 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 Hodges's Motion.

         BACKGROUND

         Hodges 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, 143.

         The 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.

         In his 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 denied.

         The Court addresses the parties' contentions in turn.

         DISCUSSION

         I. Hodges's Ineffective Assistance of Counsel Claims

         Criminal 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).

         To 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).

         “[A] 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. 2001)).

         A. Counsel's Failure to have Proper Exculpatory Witnesses Testify

         Petitioner 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.

         In 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.

         “[C]omplaints 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 Cir. 2010)).

         In 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.[1] 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.[2] 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 us.” Id.

         In this 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.[3] 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, 12.

         In 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.

         Agent 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.

         The 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.

         Mr. 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.[4] 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 ...


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