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United States v. Hennis

United States District Court, S.D. Mississippi, Northern Division

January 20, 2015

JAMES A. HENNIS. Criminal No. 3:12cr91-HSO-RHW.



BEFORE THE COURT is the Motion [62] of Defendant James A. Hennis ["Defendant" or "Hennis"] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255. This Motion is now fully briefed. Hennis seeks an evidentiary hearing and asks the Court to vacate his plea and sentence and remand the case for a new plea. Def.'s Mem. [63] at 14. After due consideration of the issues presented, the record, and the relevant legal authorities, the Court is of the opinion that the Motion should be denied.


On July 25, 2012, a grand jury returned a two-count Indictment [1] against Hennis on two separate charges of

knowingly fil[ing] and attempt[ing] to file in a public record a false lien and encumbrance against the real and personal property of a Federal District Court Judge for the Southern District of Mississippi, on account of the performance of official duties by that individual knowing and having reason to know that such lien and encumbrance was false and contained materially false, fictitious and fraudulent statements and representations, in violation of Sections 1521 and 2, Title 18, United States Code.

Indictment [1] at 1-2. Count 1 related to actions taken on or about November 2, 2010, while Count 2 involved actions taken on or about November 12, 2010.

A jury trial commenced in this matter on September 10, 2012, at which Hennis was represented by counsel. On September 12, 2012, the third day of trial, Hennis entered an open plea of guilty to both Counts 1 and 2 of the Indictment, without the benefit of a plea agreement. On November 2, 2012, this Court sentenced Hennis to a term of 41 months imprisonment in the custody of the United States Bureau of Prisons as to each count, with both terms to run concurrently, followed by a 3 year term of supervised release as to each count, to run concurrently. J. [45] at 1-6. The Court also assessed Hennis a $10, 000.00 fine. Id. After sentencing, Hennis' attorneys were permitted to withdraw as counsel of record. See Nov. 2, 2012, Text Order. The Judgment [45] was entered on November 6, 2012. J. [45] at 1. At Hennis' direction, the Court filed a Notice of Appeal [46] from the Final Judgment the same date. Notice [46] at 1. The United States Court of Appeals for the Fifth Circuit dismissed the appeal as of December 21, 2012, for want of prosecution. Mandate [50] at 1.

On March 24, 2014, Hennis filed the present Motion to Vacate pursuant to 28 U.S.C. § 2255. The Motion seeks an evidentiary hearing and advances the following grounds upon which Hennis claims his plea and sentence should be vacated: (1) that counsel was ineffective in various respects; (2) that the Court failed to satisfy its obligations under Federal Rule of Criminal Procedure 11(b)(1)(G), (H), and (K), 11(b)(2), and 11(b)(3); and (3) that Hennis suffered due process violations "affecting the overall fairness of the trial." Mot. [62] at 4-7; see also Mem. [63] at 2-14.


A. Legal Standard

There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see also United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992). "[O]n collateral attack, a defendant is limited to alleging errors of a constitutional or jurisdictional magnitude.'" United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (quoting United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)).

Upon a conviction and exhaustion of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); Shaid, 937 F.2d at 231-32. Relief under § 2255 is therefore reserved for violations of constitutional rights and for a narrow range of injuries which could not have been raised on direct appeal which, if condoned, would result in a complete miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

Hennis contends he received ineffective assistance of counsel. Claims of ineffective assistance of counsel may generally be heard by way of a § 2255 motion. United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). To demonstrate ineffective assistance of counsel, Hennis must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's ineffective assistance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "Failure to establish either prong defeats the claim." Tucker v. Johnson, 115 F.3d 276, 280 (5th Cir. 1997). However, "mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue." Green v. Johnson, 160 F.3d 1029, 1042-43 (5th Cir. 1998).

When considering whether counsel provided ineffective assistance, the Court must presume that "counsel's conduct f[ell] within the wide range of reasonable professional assistance..., " and a defendant must overcome that presumption. Strickland, 466 U.S. at 689. In the plea context, the "prejudice" prong of the Strickland test for ineffective assistance of counsel requires that the defendant show "that there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Hennis also charges that he was induced to plead guilty such that his guilty plea was not knowing and voluntary.[1] Hennis essentially argues that he was "deceived, misled, or tricked into plead[ing] guilty" meaning that his "plea is invalid." Mem. [63] at 11 (citing Smith v. O'Grady, 312 U.S. 329 (1941); Walker v. Johnston, 312 U.S. 275 (1941)).

"The validity of a guilty plea is a question of law...." United States v. Hernandez, 234 F.3d 252, 254 (5th Cir. 2000) (citing United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997)). "A plea of guilty is constitutionally valid only to the extent it is voluntary' and intelligent.'" Bousley v. United States, 523 U.S. 614, 618 (1998) (citation omitted). Therefore, "[a] guilty plea will be upheld on habeas review if entered into knowingly, voluntarily, and intelligently." Hernandez, 234 F.3d at 255 (quoting Montoya v. Johnson 226 F.3d 399, 404 (5th Cir. 2000)).

Whether a guilty plea is knowing turns on whether the defendant understands the direct consequences of his plea including the maximum possible penalty, while voluntariness of a plea depends on whether the plea was induced by threats, misrepresentation, unfulfilled promises, or improper promises. Id. at 255 & n.3. "[A] plea of guilty entered by one fully aware of the direct consequences of the plea is voluntary in a constitutional sense unless induced by threats, misrepresentation, or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business." Bousley, 523 U.S. at 619 (quotation omitted). "To constitute an intelligent act, it must be done with sufficient awareness of the relevant circumstances and likely consequences." United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996) (quotation omitted). The United States Supreme Court has "long held that a plea does not qualify as intelligent unless a criminal defendant first receives real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Bousley, 523 U.S. at 618 (quotation omitted).

B. Analysis

1. Hennis' Claims of Ineffective Assistance of Counsel

a. Counsel's Purported Ignorance of Applicable Laws and Failure to Challenge the Constitutionality of the Applicable Law

Hennis asserts that his counsel was deficient in demonstrating competent knowledge of the offense charged under 18 U.S.C. § 1521 or how to provide Hennis an effective, meaningful defense. Mem. [63] at 2-3. According to Hennis, his counsel's

failure to advocate any mitigating evidence, or challenge the Constitutionality of the Statutes [sic] application, fails to meet sixth amendment requirement for effective counsel and more probably resulted in the conviction of an innocent man, Schlupu [sic] v. Delo, 513 U.S. 298, 130 L ed. 208 [sic], [2] undermining the reliability of the outcome, Strickland v. Washington, 466 U.S. 668, 80 L.ed 674 [sic] (1984 U.S.). [sic]

Id. at 3.

Hennis also argues that his

counsel's representation was incompetent to address the unconstitutional application of a newly enacted Statute in a manner not intended by Congress. The Statute's legislative history explains that it is intended to penalize individuals who seek to intimidate and harass federal judges by filing false claims. The question of law includes not only statutory interpretation, but also the application of law to undisputed facts.

Id. at 4. Hennis essentially blames the United States District Judge against whom he filed the liens or encumbrances for refusing to recuse from a related civil case Hennis brought in this Court over which the District Judge presided, and Hennis contends that this information would have been a defense to his criminal charges. Id. at 4-6. Hennis argues that he "filed a legitimate claim to recover, personal property, and possessions that he believed to be the legal course of action" because of the District Judge's refusal to recuse from Hennis' civil case, id. at 7, and that "18 U.S.C. § 1521 as intended by Congress is not a bullet proof vest to protect against civil liabilities for improper conduct, it was intended to protect against harassment, that is purposed to obstruct justice..., " id. at 6.[3]

Hennis' claims against trial counsel regarding their competency or ability to provide Hennis an effective, meaningful defense are conclusory and lack evidentiary references or support. Mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient. Green, 160 F.3d at 1042-43. Moreover, Hennis relies upon an unmeritorious defense to the criminal charges which would not negate the essential elements of 18 U.S.C. § 1521. As Hennis acknowledged at the time of his guilty plea, Hennis pled guilty of his own free will because he was in fact guilty of the crimes charged. Plea Tr. [77-1] at 47-48. Hennis has failed to demonstrate either that counsel's representation fell below an objective standard of reasonableness, or that counsel's ineffective assistance was prejudicial. See Strickland, 466 U.S. at 687-88.

b. Counsel's Purported Failure to Sustain a Defense Resulted in the Breakdown of the Adversarial Process and to Investigate Witnesses and Evidence that the Prosecutor Would Likely Use Against Hennis

Hennis also contends that "mitigating evidence was improperly, rather than strategically, withheld by counsel." Mem. [63] at 3. According to Hennis, "[c]ounsel failed to subject the Prosecution's case to meaningful adversarial testing at critical stages in the trial, thus constructively denying Movant's right to effective assistance of counsel...." Id. (citing Strickland, 466 U.S. at 686). Hennis faults his counsel for their "failure to vigorously cross examine prosecution's witness, " the victim District Judge, regarding the basis of Hennis' request that the Judge recuse in the civil matter. Id. at 13. Hennis maintains that "[i]f not for counsel's egregious errors it is doubtful the Movant would have considered the Plea Agrement [sic]...." Id. at 4 (citing Hill v. Lockhart, 474 U.S. 52 (1985)).

A defendant must rely on more than bare allegations to support a claim of ineffective assistance. United States v. Curtis, 769 F.3d 271, 276 (5th Cir. 2014). When a defendant claims that counsel should have interviewed or produced a witness, the defendant must show that the witness's testimony, if offered, would have been exculpatory. Id. If a defendant makes a failure to investigate claim, the defendant "must allege with specificity what the investigation would have revealed and how it would have benefitted him." United States v. Glinsey, 209 F.3d 386, 393 (5th Cir. 2000) (citing United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)).

Hennis' vague allegations regarding mitigating evidence and subjecting the prosecution's case to meaningful adversarial testing are insufficient to support his claims. Moreover, Hennis' contention that his counsel should have vigorously crossexamined the District Judge regarding Hennis' request for the Judge to recuse in his civil matter would have made no difference in the criminal trial. Even if Hennis could have shown with further cross-examination that the District Judge should have recused himself from the civil case, which is doubtful, this would not have changed the fact that the liens or encumbrances Hennis filed against the District Judge remained false, and the actions that Hennis took would nevertheless be unlawful. Hennis' post hoc legal conclusions regarding a litigant's legal rights upon a judge's alleged violation of the Code of ...

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