United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
KHALSA UNITED STATES MAGISTRATE JUDGE
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.)
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
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666-67 (10th Cir. 2016) (unpublished).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.
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.)
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 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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.
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.
Standard of Review
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
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
Law Governing an Ineffective Assistance of Counsel Claim
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).
Hopper's Claim That Her Counsel Was Ineffective For
failing to Present Certain Witnesses at Trial
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.)
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
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).
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 ...