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United States v. Hunter

United States District Court, S.D. Ohio, Western Division, Dayton

January 1, 2020


          Thomas M. Rose District Judge.


          Michael R. Merz United States Magistrate Judge.

         This criminal case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit. Hunter v. United States, 2019 U.S. App. LEXIS 31768 (6th Cir. Oct. 24, 2019), rehearing denied, 2019 U.S. App. LEXIS 34017 (6th Cir. Nov. 13, 2019).

         The case was remanded for this Court to decide Hunter's Motion for Reconsideration (ECF No. 236). Upon remand the Magistrate Judge filed a Report and Recommendations recommending that the Motion for Reconsideration be denied (the “59(e) Report, ” ECF No. 288). Hunter has objected (ECF No. 291) and District Judge Rose has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (ECF No. 292).

         Relevant Chronology

         Christopher Hunter's Motion to Vacate under 28 U.S.C. § 2255 was filed on September 11, 2012, more than seven years ago (ECF No. 135). On October 29, 2013, Judge Rose adopted a Report recommending dismissal of all claims except Ground Two (ECF No. 167). An evidentiary hearing was held on Ground Two in April and June, 2014, but because of repeated continuances briefing was not complete until many months later and a Report on Ground Two was not issued until August 24, 2015 (ECF No. 209). On February 19, 2016, Judge Rose ordered the Motion to Vacate dismissed with prejudice (ECF No. 229). The instant Motion for Reconsideration, determined by the circuit court to qualify as a motion to amend the judgment under Fed.R.Civ.P. 59(e) was filed March 14, 2016 (ECF No. 233). Because of the pendency of Hunter's appeal, the Report on the Motion was not filed until December 5, 2019, two weeks after the circuit court mandate issued (ECF No. 287), but three and one-half years after the Motion for Reconsideration was filed.

         Standard for a Motion to Amend the Judgment

         The 59(e) Report sets forth the Sixth Circuit standard for granting a motion to amend the judgment (ECF No. 288, PageID 4163). Essentially a movant must show a clear error of law, newly discovered evidence, an intervening change in the controlling law, or the need to correct a manifest injustice. Gencorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); accord: Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

         The Objections do not quarrel with this statement of the standard. Instead, they assert clear errors of law and newly discovered evidence (ECF No. 291, PageID 4176). These arguments will be examined in turn.

         Clear Error of Law

         Hunter's claim in Ground Two of his Motion to Vacate is that he received ineffective assistance of trial counsel when attorney Matthew Arntz advised him that the United States could not convict him as charged because it had not seized a sufficient quantity of drugs from him personally (Motion, ECF No. 135, PageID 2277). Hunter contends this bad advice led him to reject a favorable plea offer.

         At the evidentiary hearing in 2014, Hunter testified to getting the bad advice but, as the Report notes, provided no corroboration in the form of notes taken of the advice at the time or testimony from the other two criminal defense lawyers with whom he claims he discussed Arntz's advice. The Report summarized this state of the evidence: “Hunter presented no external evidence of Arntz's lack of credibility.” (Report, ECF No. 288, PageID 4165). Hunter argues this is clear error and then lists a full page of places in the record that supposedly “contradict Arntz's testimony or support Hunter's claim.” (Objections, ECF No. 291, PageID 4177-78).

         The first three of these instances relate to the alleged bad advice. Id. at PageID 4177. Hunter, then represented by counsel, argued the Magistrate Judge's finding that Arntz was credible was inconsistent with Arntz's admission on cross-examination that there was a theory abroad among defense counsel that United States v. Booker, 543 U.S. 220 (2005)[1], might have an impact on proof of drug quantities. Arntz admitted discussing Booker with Hunter, but denied ever advising Hunter that Booker would prevent his conviction on the most serious charge against him. At the evidentiary hearing nine years later, Hunter was certain the bad advice had been given. Ultimately the Magistrate Judge credited Arntz's recollection over Hunter's.

         After listing these three instances related to the alleged bad advice, Hunter then lists five other supposed instances of deficient performance by Arntz which Hunter believes undermine Arntz's credibility. Id. at PageID 4178. None of them are about the alleged bad advice on drug quantity. None of them were pleaded as instances of ineffective assistance of trial counsel in the Motion to Vacate. None of them were relied on in briefing the Motion to Vacate after the evidentiary hearing. Certainly the Court's failure to find on its own instances of supposed ...

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