Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hesser v. United States

United States District Court, M.D. Florida, Fort Myers Division

June 28, 2019

PETER HESSER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This 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)[1] 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.

         I.

         On 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. #101.)

         On 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.

         Petitioner 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.)[1] 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.

         II.

         Petitioner 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.

         A. Ineffective Assistance of Counsel Standard

         The 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).

         Under 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).

         B. Ground One: Failure to Make or Preserve Rule 29 Motion

         The 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.

         At the 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.)

         The 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 Cir. 2008).

         If 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.