United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on petitioner's Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr.
Doc. #154) filed on August 12, 2016. The government
filed a Response in Opposition to Motion (Cv. Doc. #8) on
November 29, 2016. For the reasons set forth below, the
motion is granted in part and denied in part.
October 3, 2012, a federal grand jury in Fort Myers, Florida
returned a four-count Second Superseding Indictment (Cr. Doc.
#62) charging Peter Hesser (Hesser or petitioner) with three
counts of filing false tax returns with the Internal Revenue
Service for calendar years 2005, 2006, and 2007 in violation
of 18 U.S.C. § 287 and 18 U.S.C. § 2 (Counts One,
Two, Three), and one count of attempting to evade and defeat
the payment of income tax, penalties, and interest due and
owing to the United States for calendar years 2001, 2002, and
2003, in violation of 26 U.S.C. § 7201 (Count Four).
Petitioner proceeded to trial, and on December 5, 2012, a
jury returned verdicts of guilty on all counts. (Cr. Doc.
March 11, 2013, the district court sentenced petitioner to
concurrent terms of 36 months imprisonment as to each count,
concurrent terms of supervised release, and restitution of
$296, 246.00. (Cr. Docs. #121, 123.) Judgment (Cr. Doc. #123)
was filed on March 13, 2013.
filed a direct appeal, and on September 8, 2015, the Eleventh
Circuit Court of Appeals affirmed the convictions and
sentences, but vacated the restitution order for further
proceedings. (Cr. Doc. #146.) After a hearing, a Judgment Upon
Remand (Cr. Doc. #151) was filed which reduced restitution to
$123, 495.18. As the government concedes (Cv. Doc. #8, p. 2),
petitioner's current motion was timely filed.
raises three grounds of ineffective assistance of counsel. In
Ground One, petitioner argues that trial counsel was
ineffective by failing to properly move for a judgment of
acquittal based on the insufficiency of evidence. (Cv. Doc.
#1, pp. 14-18.) As a sub-issue, petitioner argues that his
trial attorney “went further in his ineffectiveness by
unreasonably calling as a witness at trial the
defendant.” (Cv. Doc. #1, p. 15.) In Ground Two,
petitioner argues that trial counsel provided bad advice
regarding the hazards of testifying on his own behalf, and
therefore his acceptance of the advice was not knowing,
voluntary, and intelligent. (Cv. Doc. #1, pp. 18-20.) Only
the first portion of Ground One is meritorious.
Ineffective Assistance of Counsel Standard
legal standard for ineffective assistance of counsel claims
in a habeas proceeding is well established. To prevail on a
claim of ineffective assistance of counsel, a habeas
petitioner must demonstrate both that (1) counsel's
performance was deficient because it fell below an objective
standard of reasonableness and (2) prejudice resulted because
there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been
different. See Hinton v. Alabama, 571 U.S. 263,
272-73 (2014) (citing Strickland v. Washington, 466
U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)). The proper measure of attorney
performance is “simply reasonableness under prevailing
professional norms” considering all the circumstances.
Hinton, 571 U.S. at 273 (internal quotations and
citations omitted). “A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Strickland, 466 U.S. at 689; see
also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(stating courts must look to the facts at the time of
counsel's conduct). This judicial scrutiny is highly
deferential, and the Court adheres to a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance. See Strickland,
466 U.S. at 689-90. To be objectively unreasonable, the
performance must be such that no competent counsel would have
taken the action. See Rose v. McNeil, 634 F.3d 1224,
1241 (11th Cir. 2011); Hall v. Thomas, 611 F.3d
1259, 1290 (11th Cir. 2010).
the prejudice prong of Strickland, a petitioner must
show “that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466
U.S. at 694. As a general rule petitioner must affirmatively
prove prejudice because “attorney errors come in an
infinite variety and are as likely to be utterly harmless in
a particular case as they are to be prejudicial. That the
errors had some conceivable effect on the outcome of the
proceeding is insufficient to show prejudice.”
Butcher v. United States, 368 F.3d 1290, 1293 (11th
Cir. 2004) (citations and internal quotations omitted).
Ground One: Failure to Make or Preserve Rule 29
first portion of Ground One is that petitioner's trial
attorney provided ineffective assistance of counsel by
failing to make a Rule 29(a) motion based upon the
insufficiency of the evidence at the end of the
government's case-in-chief, and by failing to renew or
make such a motion at the end of all the evidence in the
case. The Court agrees in part.
close of the government's case-in-chief, petitioner's
counsel moved for a judgment of acquittal on Count Three
based on the lack of a signature on Form 1040, but failed to
make a motion for judgment of acquittal on any count based on
the sufficiency of the evidence.
(At sidebar, Court, counsel and defendant present)
MR. MOLLOY: Your Honor, it is the Government's intention
to rest at this point. I understand Mr. Becraft may have some
motions; he may not.
MR. BECRAFT: Just real quick, Judge, I'd like to -- we
don't need to belabor this on these Count 3 for the year
2007, Your Honor. I'd just maintain that it's not
sufficient proof for a false claim count to prove to be
submitted in this case which is an unsigned Form 1040.
It's the 1040 form that constitutes the basis for the
claim. It's unsigned and there's been no evidence
that it was, quote, submitted by Pete Hesser. That's my
Rule 29 on one count. That's all.
(Cr. Doc. #113, pp. 79, 82-83.) The district court denied the
motion, and petitioner testified on his own behalf and
counsel presented testimony from several other witnesses. At
the conclusion of all the testimony, defense counsel did not
renew his Rule 29(a) motion as to Count Three or make a Rule
29(a) motion as to any count. (Cr. Doc. #115, p. 221.)
procedure to preserve a motion based on the insufficiency of
the evidence is well established.
[A] defendant may move the district court for a judgment of
acquittal at the close of the government's evidence or at
the close of all of the evidence. If the defendant moves for
a judgment of acquittal at the close of the government's
case-in-chief, the motion is denied, and the defendant
thereafter presents evidence, his presentation of evidence
generally “operates as a waiver of his objection to the
denial of his motion for acquittal.” United States
v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994). In that
case, to preserve his objection, the defendant must renew his
motion at the close of all of the evidence. See id.
United States v. DeGennaro, 309 Fed.Appx. 350 (11th
Cir. 2009)(citing Fed. R. Crim. P. 29(a)). The failure to
renew or make a motion for judgment of acquittal does not
foreclose appellate review of the sufficiency of the
evidence, but it does result in application of the more
strenuous manifest miscarriage of justice standard.
United States v. Edwards, 526 F.3d 747, 756 (11th
properly made and preserved, the district court's denial
of a motion for judgment of acquittal is reviewed de
novo. UnitedStates v. Chafin, 808
F.3d 1263, 1268 (11th Cir. 2015); UnitedStates
v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). Under the
de novo standard, the Eleventh Circuit reviews the
evidence in the light most favorable to the government, makes
all inferences and credibility choices in the
government's favor, and then determines whether a
reasonable jury could have found the ...