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United States v. Hoehn

United States District Court, N.D. Florida, Panama City Division

April 1, 2018

UNITED STATES OF AMERICA
v.
SARA MARI HOEHN

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         This matter is before the court upon Defendant Sara Mari Hoehn's Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 122). The Government filed a response (ECF No. 131), and Hoehn filed a reply, as well as two notices of supplemental authority (ECF Nos. 133, 140, 141). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the undersigned concludes that Hoehn has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules 8(a) and (b), Rules Governing Section 2255 Cases.

         PROCEDURAL BACKGROUND

         On December 13, 2011, a grand jury returned an indictment charging Sean Lamar Rainer and Sara Mari Hoehn with conspiracy to manufacture and possess with intent to manufacture and distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine (“Count One”); manufacture and possession with intent to manufacture and distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine between August 28 and September 1, 2011 (“Count Two”); and possession of a firearm in furtherance of a drug trafficking crime (“Count Three”) (ECF No. 1). Sean Lamar Rainer was also charged in a fourth count with possession of a firearm by a convicted felon.

         Hoehn and Rainer were arrested on September 1, 2011, as a result of a tip provided to the Bay County Sheriff's Office that two armed individuals were cooking methamphetamine in a motel room in Panama City, Florida (ECF No. 88, PSR ¶ 9). Investigators knocked on the door to the room, and when co-defendant Rainer opened the door, holding a gun, they were met with a cloudy haze and a strong odor and fumes associated with an active methamphetamine lab. Four bottles were actively cooking at the time. Law enforcement recovered items including plastic bottles used as cooking vessels, items used for the “shake and bake” method of manufacturing methamphetamine, allergy pills containing pseudoephedrine, and a pink plastic container holding syringes marked “Sara's.” Officers also recovered a pink overnight bag that held a notebook containing instructions on how to manufacture methamphetamine. More than 700 grams of a mixture and substance containing methamphetamine were seized from the motel room.

         Assistant Federal Public Defender Michelle Spaven took over Hoehn's representation from AFPD Charles Lammers and represented her at trial (ECF No. 50). After a two-day trial at which neither Hoehn, nor any other witness for the defense testified, the jury found Hoehn guilty as charged. It also specifically found that the offense conduct involved 500 grams or more of methamphetamine as was charged in the indictment[1] (ECF No. 74). Co-defendant Rainer entered a guilty plea and did not testify at Hoehn's trial (ECF Nos. 26-28; ECF No. 101 at 21).

         The Presentence Investigation Report (“PSR”) assessed Hoehn's base offense level at 32 based on a finding that she was accountable for 734.2 grams of a mixture and substance containing methamphetamine (ECF No. 88, PSR ¶¶ 14, 22).[2] After a three-level upward adjustment pursuant to § 2D1.1(13)(C), due to the substantial risk of harm to human life or the environment, Hoehn's total offense level was 35 (PSR ¶¶ 23-30). Although she had a minimal criminal history, Hoehn's criminal history category was II because she had committed the instant offense while under a criminal justice sentence for a 2011 theft conviction (ECF No. 88, PSR ¶¶ 33-37).

         A ten-year minimum term of imprisonment applied to all three counts. Additionally, the term of imprisonment as to Count Three had to be imposed consecutively to any other counts (ECF No. 88, PSR ¶¶ 69-70). Therefore, although the applicable advisory guidelines range was 188 to 235 months, Hoehn's total guidelines range after including the consecutive minimum ten-year term on Count Three was 308 to 355 months (ECF No. 88, PSR ¶ 71).

         As to Hoehn's personal history, the PSR reflected that she and co-defendant Rainer had been in a romantic relationship for eighteen months and had a daughter who was born on January 25, 2007 (ECF No. 88, PSR ¶ 49). According to Hoehn's mother, Rainer was abusive to Hoehn during the course of that relationship (PSR ¶ 49). Hoehn had another daughter, born November 20, 2009, with Donnie Smith, with whom she was in a relationship for four years (PSR ¶ 50). She and Smith had been living with his parents, who were the victims of the earlier theft, and Smith and the couple's daughter continued to reside with Smith's parents after Hoehn's arrest (PSR ¶¶ 33, 50). Hoehn also had a third child, born in 2004, from a relationship before she met Rainer.

         At sentencing, the court overruled the defense objection to the three-level adjustment for the substantial risk created by the offense conduct (ECF No. 103 at 3-13). It also overruled the request for a minor role adjustment, finding that Hoehn was an active participant in the cooking that was taking place in the hotel room (ECF No. 103 at 13-14). The court sentenced Hoehn to a total term of 331-months imprisonment, which was comprised of concurrent terms of 211-months imprisonment on Counts One and Two, followed by the consecutive mandatory minimum 120-months imprisonment on Count Three (ECF No. 103 at 18-19). Hoehn was also ordered to pay restitution jointly and severally with co-defendant Rainer in the amount of $10, 576.02 to the owner of the hotel and its insurance company for damage to the room (ECF No. 103 at 20).[3]

         Hoehn raised two issues on appeal, which were ultimately unsuccessful (ECF No. 108). She first claimed that the district court erred in denying her motion for judgment of acquittal on Count Three, because she did not actively possess the shotgun found in the hotel room and, she argued, the evidence was insufficient to show that she constructively possessed it. The Eleventh Circuit disagreed (ECF No. 108 at 2-5). Hoehn also challenged, for the first time, the quantity of drugs attributed to her. The appellate court found no plain error and affirmed (ECF No. 108 at 5-9).

         While the instant motion to vacate was pending, the district court reduced Hoehn's total term of imprisonment from 331 to 289-months imprisonment as a result of Amendment 782 to the Sentencing Guidelines, pursuant to 18 U.S.C. § 3582 (ECF Nos. 111, 125, 126).

         In the present motion, Hoehn separates her claims into eight often overlapping claims for relief, each assailing some aspect of trial or appellate counsel's performance. The Government opposes the motion in its entirety. Hoehn has also filed two addenda to her motion, citing more recent authority.

         ANALYSIS

         General Standard of Review

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to ' 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent . . . .”

         The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects”).

         Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234B35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “'available' on direct appeal when its merits can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that she is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that “some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct.” Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

         Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a ' 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that she was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to carry her burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.”).

         In determining whether counsel's conduct was deficient, this court must, with much deference, consider “whether counsel's assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688; see also Dingle v. Sec'y for Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to examine counsel's performance in a highly deferential manner and “must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) (quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 1305, 1315B16 (11th Cir. 2000) (discussing presumption of reasonableness of counsel's conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was “not entitled to error-free representation”). Counsel's performance must be evaluated with a high degree of deference and without the distorting effects of hindsight. Strickland, 466 U.S. at 689. To show counsel's performance was unreasonable, a defendant must establish that “no competent counsel would have taken the action that his counsel did take.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 218 F.3d at 1315. “[T]he fact that a particular defense ultimately proved to be unsuccessful [does not] demonstrate ineffectiveness.” Chandler, 218 F.3d at 1314. When reviewing the performance of an experienced trial counsel, the presumption that counsel's conduct was reasonable is even stronger, because “[e]xperience is due some respect.” Chandler, 218 F.3d at 1316 n.18.

         To establish prejudice, defendant must show that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland). For the court to focus merely on “outcome determination, ” however, is insufficient; “[t]o set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369B70 (1993); Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore must establish “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or in the case of alleged sentencing errors, a defendant must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been less harsh due to a reduction in the defendant's offense level. Glover v. United States, 531 U.S. 198, 203B04 (2001). A significant increase in sentence is not required to establish prejudice, as “any amount of actual jail time has Sixth Amendment significance.” Id. at 203.

         To establish ineffective assistance, a defendant must provide factual support for her contentions regarding counsel's performance. Smith v. White, 815 F.2d 1401, 1406B07 (11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test. See Boyd v. Comm'r, Ala. Dep't of Corr., 697 F.3d 1320, 1333B34 (11th Cir. 2012); Garcia v. United States, 456 Fed.Appx. 804, 807 (11th Cir. 2012) (citing Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir. 1993)); Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Furthermore, counsel is not constitutionally deficient for failing to preserve or argue a meritless claim. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General, Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)). This is true regardless of whether the issue is a trial or sentencing issue. See, e.g., Sneed v. Florida Dep 't of Corrections, 496 Fed.Appx. 20, 27 (11th Cir. 2012) (failure to preserve meritless Batson claim not ineffective assistance of counsel); Lattimore v. United States, 345 Fed.Appx. 506, 508 (11th Cir. 2009) (counsel not ineffective for failing to make a meritless objection to an obstruction enhancement); Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit); Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel not ineffective for failing to object to Ainnocuous" statements by prosecutor, or accurate statements by prosecutor about effect of potential sentence); Meeks v. Moore, 216 F.3d 951, 961 (11th Cir. 2000) (counsel not ineffective for failing to make meritless motion for change of venue); Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995) (counsel need not pursue constitutional claims which he reasonably believes to be of questionable merit); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (no ineffective assistance of counsel for failing to preserve or argue meritless issue); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (counsel was not ineffective for informed tactical decision not to make what he believed was a meritless motion challenging juror selection procedures where such a motion has never been sustained because such a motion would not have been successful).

         Finally, the Eleventh Circuit has recognized that given the principles and presumptions set forth above, “the cases in which habeas petitioners can properly prevail . . . are few and far between.” Chandler, 218 F.3d at 1313. This is because the test is not what the best lawyers would have done or even what most good lawyers would have done, but rather whether some reasonable lawyer could have acted in the circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). “Even if counsel's decision appears to have been unwise in retrospect, the decision will be held to have been ineffective assistance only if it was 'so patently unreasonable that no competent attorney would have chosen it.'” Dingle, 480 F.3d at 1099 (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)). The Sixth Circuit has framed the question as not whether counsel was inadequate, but rather whether counsel's performance was so manifestly ineffective that “defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). Regardless of how the standard is framed, under the prevailing case law it is abundantly clear that a moving defendant has a high hurdle to overcome to establish a violation of her constitutional rights based on her attorney's performance. A defendant's belief that a certain course of action that counsel failed to take might have helped her case does not direct a finding that counsel was constitutionally ineffective under the standards set forth above.

         An evidentiary hearing is unnecessary when “the motion and files and records conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Rosin, 786 F.3d at 877; Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove she is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that “a district court need not hold a hearing if the allegations [in a ' 2255 motion] are . . . based upon unsupported generalizations”) (internal quotation marks omitted); P ...


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