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United States v. Hopper

United States District Court, D. New Mexico

April 9, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
POLLY HOPPER, Defendant/Petitioner.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant/Petitioner Polly Hopper's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (Doc. 281) filed on February 6, 2018. The Government responded in opposition to the Motion on June 22, 2018. (Doc. 293.) And Ms. Hopper filed a reply on July 11, 2018. (Doc. 294.) United States District Judge Kenneth Gonzales referred the case to me pursuant to 28 U.S.C. §§ 636(b)(1)(B), (b)(3) and Va. Beach Fed. Sav. & Loan Ass'n v. Wood, 901 F.2d 849 (10th Cir. 1990), on December 11, 2018. (Doc. 312.)

         The Court has meticulously reviewed all of the pleadings and attachments in this civil proceeding and the record in the underlying criminal case. Because the Petition, exhibits, and record conclusively establish that Ms. Hopper is not entitled to relief, an evidentiary hearing is unnecessary. 28 U.S.C. § 2255(b); United States v. Flood, 713 F.3d 1281, 1291 (10th Cir. 2013); United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000). Having carefully considered the parties' submissions, the civil and criminal record, and the relevant law, the Court recommends that Ms. Hopper's Motion be DENIED.

         I. Background

         A. Factual Background

         Defendant/Petitioner Polly Hopper (“Ms. Hopper”) was convicted of kidnapping and conspiracy to commit kidnapping based on her involvement in the kidnapping of Melissa Hopper. (Doc. 185); see also United States v. Hopper, 663 Fed.Appx. 665, 666-67 (10th Cir. 2016) (unpublished). The following background information is derived from the evidence presented at Ms. Hopper's trial and from the Tenth Circuit's Opinion affirming Ms. Hopper's conviction.

         The victim in this case, Melissa Hopper, is the estranged wife of Ms. Hopper's nephew and co-defendant, Jessie Hopper Jr. In March or April 2014, after Melissa and Mr. Hopper Jr. separated, Mr. Hopper Jr. moved from Arkansas to Deming, New Mexico, to live with his grandmother Patsy Lee Hopper (hereinafter “Patsy Lee”), his father Jessie Hopper Sr., and his aunt Ms. Hopper. (Doc. 252 at 81.) Hopper, 663 Fed.Appx. at 667. The Hopper property contained a trailer in which Ms. Hopper lived with Patsy Lee, and a bus in which the two Hopper men lived together. (Doc. 253 at 203-04.) Mr. Hopper Jr. described Mr. Hopper Sr. as “the boss” of the Hopper household. (Id. at 210.) When Mr. Hopper Jr. learned that Melissa had a boyfriend, he talked with his father who said that it “wasn't right” for Melissa to have a boyfriend, that she needed to be with Mr. Hopper Jr., and that his children should not be calling another man “Daddy.” (Id. at 207-08.) Mr. Hopper Sr. came up with a plan to kidnap Melissa, and in a subsequent discussion on this topic that same day, Ms. Hopper joined the scheme, with the two of them telling Mr. Hopper Jr. to “[w]atch and learn, . . . we're going to show you how to get your kids and your wife.” (Id. at 208; 209-10.) As to their respective motivations for kidnapping Melissa, Mr. Hopper Jr. testified that he was motivated by his wish to be with his children; his father wanted sex with Melissa; and Ms. Hopper wanted to make her brother happy and to “torture” Melissa, whom she hated. (Id. at 209, 323.)

         Ms. Hopper, Mr. Hopper Sr. and Mr. Hopper Jr. (collectively, “the Hoppers”) had several discussions regarding their plan to kidnap Melissa. (Id. at 212.) Because the Hoppers' only form of transportation was a truck in which only three people could fit, their plan to kidnap Melissa and the children required the purchase of a van. (Id. at 215-16.) A calendar kept by Ms. Hopper indicated that on May 6th the Hoppers would “go look for van, ” and on May 7th they would leave for Arkansas. (Id. at 215.) Consistent with the calendar notation, Ms. Hopper, Mr. Hopper Sr., and Patsy Lee[1] went shopping for the van on May 6th. (Id. at 216-17.) Mr. Hopper Jr., who had agreed that the van should be purchased, stayed behind because he could not fit in the truck. (Id. at 216.) Janice Peterson, the used car sales person who sold the minivan that the Hoppers ultimately used to kidnap Melissa, testified that she understood that the Hopper family needed a minivan with three-row seating because they were going to take a trip to Arkansas and they needed to transport their grandchildren. (Doc. 256 at 61-63.)

         Before they left New Mexico, Mr. Hopper Jr. called Melissa to tell her that Ms. Hopper had died. (Doc. 253 at 211; Doc. 252 at 81.) The purpose of this ruse was to assure that Melissa, who did not like Ms. Hopper, would agree to meet him once the Hoppers were in Arkansas. (Doc. 253 at 211.)

         Again, consistent with Ms. Hopper's calendar notation, the Hoppers departed for Arkansas on May 7th. (Doc. 253 at 217.) They arrived in Arkansas on May 8th. (Id.) Once in Arkansas, the Hoppers went first to a town called Morrilton where Ms. Hopper retrieved the title to the Hoppers' truck and some money from a pawnshop broker. (Id. at 218-19.) Ms. Hopper had paid for the gas on the trip to Arkansas, and the money that she collected from the pawnshop broker was supposed to be used for gas on the return trip to Deming. (Id. at 219-20.) The Hoppers refueled the minivan before travelling to Hot Springs (the town in which Melissa lived) because they knew that once they got Melissa in the van, they would promptly leave Arkansas. (Id. at 220; Doc. 252 at 69.)

         After reaching Hot Springs, the Hopper men dropped Ms. Hopper off at a park so that Melissa, who was under the impression that Ms. Hopper was dead, would not see her. (Doc. 253 at 226.) Mr. Hopper Jr. then called Melissa to tell her that he was in town and that he wanted to see his children. (Doc. 253 at 226-27.) Although she hesitated at first, Melissa, along with her boyfriend and the children eventually went to the park to meet Mr. Hopper Jr. (Doc. 253 at 227-28; Doc. 252 at 76-77.) After playing with his children, Mr. Hopper Jr. showed Melissa the van and told her that it was a gift for her and the children. (Doc. 253 at 228; Doc. 252 at 77-78.)

         Melissa was “a little” surprised to see Mr. Hopper Sr., who had stayed near the van while Mr. Hopper Jr. played with the children, but Mr. Hopper Sr. told Melissa that his dad wanted to talk to her about something “kind of serious” so Melissa got in the van to talk to him. (Doc. 252 at 78.) Mr. Hopper Sr. told Melissa that he was dying from cancer, and that he wanted to spend time with his grandchildren. (Doc. 252 at 78-79.) Mr. Hopper Sr. then invited Melissa and the children to join the Hopper men for dinner, and she accepted the invitation. (Doc. 252 at 79.)

         Before going out for dinner, Melissa needed to change her clothes and get a diaper for one of her children, so the Hopper men followed Melissa and her boyfriend home and waited for her to get ready. (Doc. 252 at 79.) Leaving her boyfriend at home, Melissa and her children joined the Hopper men in the minivan believing that the group would have dinner at a nearby restaurant. (Id. at 80.) Unbeknownst to Melissa, the dinner invitation was merely a ruse to get her and the children into the van. (Doc. 253 at 230-31.)

         When Melissa observed that they had made a wrong turn and were not headed in the direction of a restaurant, Mr. Hopper Sr. pulled out a sawed-off shot gun and handcuffs and instructed his son to handcuff Melissa. (Doc. 253 at 231, 237-38.) Mr. Hopper Sr. told Melissa, who was screaming, to shut up and he threatened to kill her if she caused a scene, and Mr. Hopper Jr. put the gun in Melissa's face to assure her compliance. (Id. at 238; Doc. 252 at 85.) Mr. Hopper Sr., who was driving the van, returned to the place where Ms. Hopper was hiding and picked her up. (Doc. 253 at 239.) According to Mr. Hopper Jr., when Ms. Hopper got into the van, Melissa said “I'm going to kill you, Bitch.” to which Ms. Hopper responded “You're not going to get the chance. Got you now.” (Id. at 239.) According to Melissa, Ms. Hopper got into the van and gave her a “weird eerie smile” and said, “They got you.” (Doc. 252 at 82.)

         The Hoppers immediately left Arkansas and headed for New Mexico. (Doc. 253 at 240.) On the return trip, the Hoppers allowed Melissa out of the van only to go to the restroom (once at a Sam's Club store and once at a Walmart), and only then when she was accompanied by Ms. Hopper. (Doc. 253 at 243-44; Doc. 252 at 96.) At one point along the way, Melissa and Ms. Hopper were left alone in the van while the Hopper men were in Walmart. (Doc. 252 at 103.) Melissa testified that while they were alone in the van, she asked Ms. Hopper why she would not let her go, to which Ms. Hopper responded, “[b]ecause JJ wanted you.” (Id.)

         When they reached the Hopper property in Deming on May 9th, Mr. Hopper Sr. forced Melissa into the bus residence. (Doc. 253 at 247-48.) Mr. Hopper Sr. told Melissa that the “rules” were that she would clean the house, take care of the kids, and give him sex. (Doc. 253 at 248.) Mr. Hopper Sr. forced Melissa to wear a nightgown that he had purchased for her when the Hoppers stopped at Walmart and, over the course of the ensuing 24 hours, both Hopper men repeatedly raped Melissa who was, at times, kept handcuffed to Mr. Hopper Sr.'s bed. (Id. at 249- 56; Doc. 252 at 104-13.) At Melissa's request, Ms. Hopper brought her some clothes to wear because the nightgown was revealing, and Melissa did not want her son to see “everything” when she bent over. (Doc. 252 at 113-14.) Otherwise, according to Melissa, Ms. Hopper “went about her daily routine.” (Id. at 114.) Melissa stayed inside the bus because she was not allowed to go outside. (Id. at 116.)

         At the inception of the kidnapping, when got into the minivan with her children, Melissa had her phone. (Doc. 252 at 90.) According to Melissa's testimony, Mr. Hopper Jr. took the phone away from her once she was in the van, but he gave it back to her and instructed her to call members of her family in Arkansas to tell them that she was with the Hoppers because she wanted to be with her husband and that she was not being kidnapped, and once she had made those calls, he took the phone away from her and removed the battery so that Melissa could not receive incoming calls. (Doc. 252 at 90-92.) According to Mr. Hopper Jr.'s testimony, although he eventually took her phone from her, Melissa had her phone for most of the trip, including while they were inside Sam's club, and she was free to make phone calls as she pleased. (Doc. 253 at 300-07.) According to Melissa's testimony, once they were in Deming on the Hopper property, Mr. Hopper Jr. gave her phone to her and instructed her, again, to call her Arkansas family to say that everything was fine. (Doc. 252 at 116.) According to Melissa, Mr. Hopper Jr. took the phone away from her and removed the battery after every phone call she made. (Doc. 252 at 92.)

         On May 9th, three of Melissa's cousins called 911 to report that Melissa and her children had been taken by the Hopper men. (Doc. 256 at 48-49.) Arkansas police ascribed some urgency to the situation and began an investigation. (Doc. 256 at 50.) As part of this investigation, they made a “ping” request through Melissa's cellphone company. (Doc. 256 at 53.) A ping signal from Melissa's cell phone indicated that she was on the Hoppers' property in Deming New Mexico. (Id. at 53, 55.) On May 10th, Arkansas police contacted the New Mexico State Police to ask for assistance. (Id. at 56-57.) In response, to what they understood to be a “possible kidnapping, ” New Mexico State Police Officer Michael Thomas, and his fellow officer, Sergeant Sosa went to the Hoppers' residence. (Doc. 252 at 20-23.) The officers' first encounter was with Mr. Hopper Sr. (Doc. 252 at 26-27.) Mr. Hopper Sr. conceded that Melissa was present on the Hopper property and agreed to let the officers talk to her to check on her welfare. (Doc. 252 at 27.) Mr. Hopper Sr. took the officers to the bus and called for Melissa to come out. (Doc. 252 at 28.) Initially, in the presence of the Hopper men, Melissa assured the officers that she was fine. (Doc. 252 at 28.) However, once Officer Thomas managed to remove Melissa from the men's presence and engage her in a private conversation, she related to him that she had been kidnapped and that she was scared. (Doc. 252 at 28; 34-35.) Ultimately, the officers detained the Hoppers and brought Melissa and her children to a women's shelter. (Id. at 38, 40.)

         B. Procedural History

         On June 18, 2014, Ms. Hopper along with Mr. Hopper Sr., and Mr. Hopper Jr., were charged with crimes related to Melissa's kidnapping. (Doc. 43.) Count 1 and Count 2 of the six-count indictment related to Ms. Hopper. (Doc. 43.) In Count 1, Ms. Hopper was charged with conspiracy to commit kidnapping contrary to 18 U.S.C. § 1201(a)(1); and in Count 2 Ms. Hopper was charged with kidnapping and aiding and abetting a kidnapping contrary to 18 U.S.C. 1201(a)(1) and 2. (Doc. 43 at 1-2.) Mr. Hopper Jr. pleaded guilty to five counts in the indictment and agreed to testify at trial on behalf of the Government. (Doc. 112; Doc. 115.) Ms. Hopper and Mr. Hopper Sr. were tried together before a jury in a trial that commenced on February 23, 2015. (Doc. 256.) Ms. Hopper was represented at trial by Court-appointed counsel, Russell Dean Clark. (Doc. 293-1 at 1.) On February 27, 2015, the jury returned its verdict finding Ms. Hopper and Mr. Hopper Sr. guilty of the charges against them in the indictment. (Doc. 184.)

         Ms. Hopper was sentenced to concurrent terms of imprisonment of 292 months imprisonment as to each of Counts 1 and 2. (Doc. 212 at 3.) Ms. Hopper appealed her conviction and sentence to the Tenth Circuit Court of Appeals. Hopper, 663 Fed.Appx. 665. On appeal, Ms. Hopper argued that: (1) the district court abused its discretion in refusing to sever her trial from that of her co-defendants; (2) there was insufficient evidence to support her conviction for conspiracy to commit kidnapping; (3) there was insufficient evidence to support her conviction for kidnapping; and (4) her sentence was substantively unreasonable. Id. at 669. Rejecting each of Ms. Hopper's arguments, the Tenth Circuit affirmed her conviction and sentence. Id. at 673.

         In the Motion presently before the Court, Ms. Hopper argues: (1) that her trial counsel was ineffective for failing to present certain witnesses at trial to support her claim of innocence (Doc. 281 at 4, 6); (2) that her trial counsel was ineffective because he induced her to reject the government's proffered plea bargain offers (Doc. 281 at 5); and (3) that she is actually innocent of the crimes for which she was convicted. (Doc. 281 at 8.) The Court considers each of these claims in turn.

         II. Standard of Review

         Pursuant to 28 U.S.C. § 2255, a federal prisoner who

claim[s] the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Relief is available under Section 2255 only if “the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). The court must presume “that the proceedings leading to the conviction were correct”; the burden is on the movant to demonstrate otherwise. Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989) (citing United States v. Morgan, 346 U.S. 502, 512 (1954)).

         III. Analysis

         A. The Law Governing an Ineffective Assistance of Counsel Claim

         The Sixth Amendment to the Constitution guarantees the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Id. at 687. Thus, “[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. This requires showing (1) that counsel's performance was so deficient that it fell below the objective standard of reasonableness, such that counsel “was not functioning as the ‘counsel' guaranteed by the Sixth Amendment”; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687, 694. The Court's inquiry into counsel's effectiveness must be based on its consideration of all the circumstances and from counsel's perspective at the time of the alleged error, and this standard is highly deferential. Id. at 688-89 (recognizing that counsel must have “wide latitude” to make tactical decisions).

         B. Ms. Hopper's Claim That Her Counsel Was Ineffective For failing to Present Certain Witnesses at Trial

         Ms. Hopper argues that her trial counsel was ineffective because he “fail[ed] to present fact/[a]libi witnesses at trial” or to do an independent investigation. (Doc. 281 at 4.) Ms. Hopper's argument in this regard is presented in two parts. In the first part, Ms. Hopper argues that she had an innocent and plausible reason for travelling to Arkansas-namely to conduct business with a pawnshop broker named Ed. (Doc. 281 at 4; Doc. 294 at 1.) She argues that her counsel was ineffective because he failed to investigate this line of defense and failed to call Patsy Lee and Ed to testify that her business with Ed was the actual reason that she travelled to Arkansas. (Doc. 281 at 4, 294 at 1). In the second part, Ms. Hopper argues that her counsel should have called Patsy Lee to testify that the Hoppers purchased the minivan, not for the purpose of kidnapping Melissa, but for the innocent purpose of providing Patsy Lee with comfortable transportation. (Doc. 281 at 6; Doc. 294 at 3.)

         1. Ms. Hopper Has Not Demonstrated that Mr. Clark's Decision to Not Call Patsy Lee and Ed to Testify Fell Below an Objective Standard of Reasonableness

         Inherent in the reasonableness standard established in Strickland, is counsel's “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In determining what to investigate, counsel should converse with the defendant and rely on information supplied by her. Id. “Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices” made after an investigation into plausible lines of defense must be respected and “will seldom if ever be found wanting.” Id. at 681. “[T]he decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney[.]” Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008).

         In an affidavit submitted as an attachment to the Government's Response to Ms. Hopper's motion her trial counsel, Mr. Clark, discussed his decision to not call Patsy Lee and Ed to testify. According to Mr. Clark, Ms. Hopper suggested that he call Patsy Lee to testify as an alibi witness. (Doc. 293-1 at 2.) Accordingly, Mr. Clark and his investigator travelled to the Hopper residence and interviewed Patsy Lee. (Id. at 3.) Among other things, Mr. Clark asked Patsy Lee about Ms. Hopper's purpose for travelling to Arkansas with her brother and her nephew. (Id.) According to Mr. Clark, Patsy Lee told him that before Ms. Hopper and the Hopper men departed, Ms. Hopper told her to “make room for the boys” (a reference to Melissa and Mr. Hopper Jr.'s children) because they would be bringing them back to New Mexico. (Id.) Weeks later, Mr. Clark called Patsy Lee to test her memory on this subject. (Id.) In his affidavit, Mr. Clark relates that in this second conversation, Patsy Lee “made clear” that before departing for Arkansas, Ms. Hopper told her to “make room for the boys” because they-Ms. Hopper, and the Hopper men, were bringing them back. (Id.) Based on these discussions, Mr. Clark made a strategic decision not to call Patsy Lee to testify. (Doc. 293-1.) Mr. Clark explained his reasoning as follows:

First [Patsy Lee's] anticipated testimony would strengthen the government's case and contradict Ms. Hopper's defense theory. [Patsy Lee's] anticipated testimony would bolster the government's position that [Ms. Hopper] knew the purpose of the trip to Arkansas was to pick up the title to her pick up and pick up the boys as well. I had reason to believe that [Patsy Lee's] testimony would benefit the government's arguments that [Ms. Hopper] had knowledge that the purpose of purchasing the van and traveling to Arkansas was to kidnap Melissa and take the kids. Second, I acknowledged that [Patsy Lee's] testimony would do nothing to rebut the governments' evidence. Third, the government could have impeached [Patsy Lee] as a witness based on ...

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