Opinion
22-1193
08-09-2022
In re: STEPHEN VINCENT HUNT, Movant.
(D.C. Nos. 1:06-CR-00155-DME-1 &1:10-CV-00447-DME) (D. Colo.)
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
ORDER
Stephen Vincent Hunt, a federal inmate, has filed a motion seeking authorization to file a second or successive 28 U.S.C. § 2255 motion. At the court's request, the government filed a response. We deny the motion.
I. Background
In 2007, a jury convicted Mr. Hunt of 12 counts relating to six bank robberies in Denver. Mr. Hunt seeks leave to challenge his convictions relating to one of those six robberies: the robbery of a Key Bank branch in Denver on January 12, 2005.
Each of the bank robbery counts was accompanied by a count under 18 U.S.C. § 924(c) for possessing a firearm in furtherance of the robberies.
Surveillance video of the Key Bank robbery shows the perpetrator wearing a mechanic's jumpsuit and black ski mask. Witnesses described him as a Black male between 5'8" and 5'10" and carrying a 9 mm silver-and-black pistol. He fired near bank employees, thus leaving bullet fragments and a shell casing at the scene. The robber told a teller to fill grocery bags with cash, which she did. He then fled the scene in an older maroon Cadillac driven by an unknown accomplice. Several of these details of the Key Bank robbery matched each of the other five robberies. See United States v. Hunt, No. 07-1518, 2009 WL 175063, at *1 (10th Cir. Jan. 27, 2009).
Mr. Hunt was arrested in connection with the robberies, and subsequent searches of his home, car, and his mother's home uncovered items common to all six robberies, including ski masks, gloves, a black backpack, plastic bags, and clothing and boots matching those worn by the robber. The mechanic's jumpsuit, however, was not recovered. In a storage locker in the basement of Hunt's apartment, police found a pistol matching the description of the one used in the Key Bank robbery. Ballistic tests indicated it was the same pistol.
At trial, the defense theory focused heavily on the assertion that Derrick Tarrant was the robber, not Mr. Hunt. In support of that theory, Mr. Hunt's counsel established through a government witness that the gun had been purchased by Theresa Cole, and that Ms. Cole had told investigators she gave it to Mr. Tarrant. (Ms. Cole was later convicted for lying to a firearms dealer in the course of purchasing the gun later used in the robberies.) The jury rejected Mr. Hunt's defense theory and convicted him on all counts. The district court sentenced him to 1,760 months in prison. We affirmed the conviction on appeal. Id. at *5.
The district court later reduced the sentence to 25 years after Mr. Hunt successfully moved for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).
Mr. Hunt has filed three previous § 2255 motions, each of which was unsuccessful. He now seeks to file another such motion based on his assertion that he has new evidence of his factual innocence.
II. Discussion
Mr. Hunt's proposed motion rests solely on the "newly discovered evidence" prong of § 2255(h), which allows a second or successive § 2255 motion when the new evidence, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." 28 U.S.C. § 2255(h)(1). In assessing whether this standard is met, we "[do] not . . . make an independent factual determination about what likely occurred, but rather . . . assess the likely impact of the evidence on reasonable jurors." Case v. Hatch, 731 F.3d 1015, 1039 (10th Cir. 2013) (internal quotation marks omitted).
In support of his motion, Mr. Hunt relies on two items of evidence. First, he has submitted an affidavit from Ms. Cole averring that the person shown in the Key Bank surveillance video is Mr. Tarrant, that the gun used in the video is the one she purchased for Mr. Tarrant, and that in 2011 she found the mechanic's jumpsuit among Mr. Tarrant's belongings. She further avers that Mr. Tarrant told her in October 2015 that he was the one who perpetrated the Key Bank robbery. Second, Mr. Hunt identifies as "new evidence" his own testimony in a February 2022 evidentiary hearing concerning a separate motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A). He asserted he was innocent of the Key Bank robbery, that the government did not cross-examine him on his assertion, and that his testimony is therefore unrebutted. We address each item of evidence in turn.
A. The Cole Affidavit
At trial, the defense argued that Mr. Tarrant committed the robberies, not Mr. Hunt, and defense counsel elicited testimony from a government agent tending to support that the silver-and-black pistol belonged to Mr. Tarrant. Ms. Cole's affidavit supports the theory that Mr. Tarrant was the robber, but it does nothing to address the fact that the gun used in the robbery was found in Mr. Hunt's locked storage unit. Although Ms. Cole avers that she bought the gun for Mr. Tarrant, she does not specify when she last knew Mr. Tarrant to be in possession of the gun. And although she now claims Mr. Tarrant told her he committed the bank robbery, the government could impeach Ms. Cole's credibility based on her conviction for lying to a firearms dealer in connection with the purchase of the very gun at issue. A reasonable juror therefore could disregard Ms. Cole's testimony. In light of Mr. Hunt's undisputed possession of the gun, the commonalities among all six of the robberies (including the gun), and the problems with Ms. Cole's credibility, we cannot say that no reasonable juror would have found Mr. Hunt guilty of the Key Bank robbery.
In support of his argument, Mr. Hunt cites United States v. Williams, 790 F.3d 1059 (10th Cir. 2015), but that case is distinguishable. In Williams, the defendant had been convicted of possessing a firearm in relation to a drug trafficking crime, among other things. Id. at 1065. The evidence supporting the conviction included a witness who said that a gun found in the defendant's car belonged to the defendant. Id. at 1081. The defendant later moved for authorization to file a successive habeas petition based on the witness's subsequent testimony that she had been coerced and threatened by police officers to falsely claim it belonged to the defendant. Id. at 1078-79. The court held this testimony established clearly and convincingly that no reasonable juror would have found the defendant guilty of possession. Id. at 1082. The court so held in part because (1) the district court found the witness's testimony credible, and (2) there was abundant corroborating evidence that on numerous occasions the officers had coerced and intimidated other witnesses in the case. Id. at 1081-82. Here, however, Ms. Cole does not claim she was coerced into changing her story, and indeed she consistently has asserted from the beginning that she bought the gun for Mr. Tarrant. And even assuming she did so, that still does not preclude the reasonable inference that Mr. Hunt used the gun in the commission of the Key Bank robbery based on police having found it in his storage locker.
In short, we conclude that Ms. Cole's affidavit does not satisfy the "clear and convincing" standard set forth in § 2255(h)(1).
B. Mr. Hunt's Testimony
Mr. Hunt also argues his recent unsworn testimony at a sentence-reduction hearing, in which he declared himself innocent of the Key Bank robbery, is newly discovered evidence of his innocence. We reject this argument. Mr. Hunt gives no reason why he could not have provided such testimony at trial 15 years ago. But even assuming his declaration of innocence could be said to be newly discovered, a reasonable juror could disregard Mr. Hunt's self-serving declaration of innocence in light of the contrary evidence.
Mr. Hunt places great weight on the fact that the government chose not to crossexamine him concerning his assertion of innocence. That decision likely only reflects that the purpose of a sentence-reduction hearing has nothing to do with revisiting guilt or innocence. See 18 U.S.C. § 3582(c)(1)(A).
III. Conclusion
For the foregoing reasons, we deny Mr. Hunt's motion. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).