United States District Court, E.D. Missouri, Southeastern Division
JAMES D. KOZOHORSKY, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by James D. Kozohorsky, a person in federal custody. On January 6, 2012, Kozohorsky was found guilty by a jury of the offense of failure to register as a sex offender, and on April 23, 2012, this Court sentenced Kozohorsky to the Bureau of Prisons for a term of 120 months, the statutory maximum sentence. Kozohorsky's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
I. BACKGROUND SUMMARY
Movant, James D. Kozohorsky (hereinafter "Kozohorsky"), is a thrice-convicted sex offender. Between 2003 and early 2009, he updated his sex offender registration approximately every three months in the states of Arkansas, Wisconsin, and Missouri. He completed his last sex offender registration form while living outside of prison in Missouri, in February 2010. Kozohorsky moved from Missouri to Arkansas around March of 2010. He was arrested in Arkansas in September 2010. At the time of his arrest, Kozohorsky's sex offender registration was not current in any state.
Before the federal indictment was sought, Kozohorsky had two state failure to register cases pending in Butler County, Missouri. He pled guilty to failure to register for conduct in 2009. The second case was dismissed, which was for conduct in March 2010. After the federal indictment was filed, Kozohorsky moved to dismiss the indictment alleging that it violated the Double Jeopardy and Due Process clauses of the Fifth Amendment. This Court denied the motion.
In January 2012, a jury found James D. Kozohorsky guilty of violating 18 U.S.C. § 2250, Failing to Update his Sex Offender Registration in Arkansas.
The Presentence Report (PSR) concluded the advisory Guidelines range was 100-125 months imprisonment. However, before the sentencing hearing, the Government announced that no evidence would be presented regarding a six-level enhancement that supported the 100-125 months Guidelines range, and as a result, the advisory Guidelines range was 57-71 months. However, the Government requested an upward variance to the statutory maximum sentence, 120 months.
Kozohorsky's objections to the PSR included his opposition to two points being assessed for obstruction of justice and the inclusion of information from an Offender Profile Report that concluded Kozohorsky is a sexually violent predator in the PSR.
This Court denied Kozohorsky's objection regarding the obstruction of justice enhancement and considered information from the Offender Profile Report in determining an appropriate sentence. This Court ordered a sentence of 120 months imprisonment, followed by lifetime supervised release, and a $100 special assessment.
On March 4, 2013, Kozohorsky's conviction and sentence were affirmed. United States v. Kozohorsky, 708 F.3d 1028 (8th Cir. 2013), cert. denied, ___ U.S. ___ , 134 S.Ct. 1014 (2014). On May 7, 2013, Kozohorsky's Petition for Rehearing and Rehearing En Banc was denied. On January 21, 2014, Kozohorsky's Petition for Writ of Certiorari was denied by the United States Supreme Court.
James D. Kozohorsky has been convicted of raping, or attempting to rape three different women. He has also been convicted of threatening one of his prior rape victims with death or serious bodily injury.
A. PRIOR OFFENSES, PRETRIAL AND TRIAL
1. Kozohorsky's Rape and Attempted Rape Convictions.
In 1988, Kozohorsky was convicted of rape for unlawfully engaging in sexual intercourse with an adult female by forcible compulsion on January 15, 1987. A charge of Aggravated Sexual Assault against a separate victim was dismissed. (PSR ¶31)
Three years later, Kozohorsky was convicted of raping a woman on November 15, 1989. (PSR ¶32) Court records reflect Kozohorsky threatened to kill the victim while he engaged in forced sexual intercourse with her. Id.
In 1991, Kozohorsky was convicted of Terroristic Threatening, Witness Intimidation, and Burglary for threatening one of his prior rape victims with death or serious physical injury around January 26, 1990. (PSR ¶33) Kozohorsky was sentenced to a total of sixteen years imprisonment. Id. He was released from prison on December 29, 2003. Id.
On January 2, 2006, Kozohorsky "anally raped [an adult female victim] four times and then pushed his fist into her vagina using a Bengay-type muscle rub for a lubricant during the assault." (PSR ¶34) He was convicted of Attempted Rape for that conduct. Id.
2. Kozohorsky required to register as a sex offender upon release from prison in 2003.
After completing the sentence of imprisonment for his second rape conviction, Kozohorsky was required to register as a sex offender. The first time he registered was on December 29, 2003, in Arkansas. (Tr. 70, 265, 317) Between December 2003 and February 2010, Kozohorsky completed a total of 35 sex offender registration forms in Arkansas, Wisconsin, and Missouri. (Tr. 222-31)
The last time Kozohorsky signed a sex offender registration form was February 5, 2010. (Tr. 162-64, 222, 330) On that date, Kozohorsky listed his current address as an apartment on Broadway in Poplar Bluff, Missouri. (Tr. 159) The form stated the next date to register was May 5, 2010. (Tr. 159, 331)
3. Kozohorsky charged with Missouri offense of "Failure of a Sex Offender to Report" in 2009 and 2010.
In October 2009, a state charge was filed against Kozohorsky in Butler County, Missouri for failing to verify his registration information within 90 days (hereinafter "2009 Butler County Case"). (PSR ¶37) On March 19, 2010, Lt. Sutton of the Poplar Bluff Police Department learned that Kozohorsky failed to appear for the trial in the 2009 Butler County Case. (Tr. 192) Lt. Sutton went to Kozohorsky's last reported address, the Broadway apartment, and found that someone else was living there. Id. at 192, 194. Lt. Sutton then called Kozohorsky. Kozohorsky told Lt. Sutton that he no longer lived there; adding that he was in Tennessee and headed to Arkansas. Id. at 195-96, 291. Kozohorsky also told Lt. Sutton that he did not need to register in those states unless he worked at least five days in a row in one place. Id. at 209.
Based on Kozohorsky's statements, a second state charge (hereinafter "2010 Butler County Case") was filed against Kozohorsky, for failing to verify his registration information. Between February 6 and September 30, 2010, Kozohorsky did not register his address with any law enforcement agency. (Tr. 222, 230)
4. Fugitive investigation opened to find Kozohorsky.
Based on Kozohorsky's failure to appear in court for the 2009 Butler County Case in March 2010, a state arrest warrant was issued. (Tr. 192) The U.S. Marshal's office was contacted for assistance and a fugitive investigation was opened in April, 2010. (Tr. 217-19) On September 30, 2010, the U.S. Marshals and local law enforcement arrested Kozohorsky at 404 Union Street in Marked Tree, Arkansas. (Tr. 219) Kozohorsky's sex offender registration was not current in any state at that time. (Tr. 222, 226-28)
When Kozohorsky was found in Arkansas, he was arrested on two outstanding warrants (Tr. 221) and surrendered to Poinsett County Arkansas, where he spent approximately two months in jail. (Tr. 221, 250, 298-99). Kozohorsky was then sent to Butler County for the 2009 Butler County Case. (Tr. 250, 299)
5. Kozohorsky pled guilty to 2009 Butler County Case.
In January 2011, Kozohorsky pled guilty to the 2009 Butler County Case (failing to report within 90 days of March 9, 2009). (PSR ¶37) The Prosecutor agreed to dismiss the 2010 Butler County charge and a three-year sentence was recommended.
Roughly two weeks later, a Grand Jury returned a federal indictment charging Kozohorsky with knowingly failing to register as required under the Sex Offender Registration and Notification Act (SORNA), in violation of 18 U.S.C. § 2250.
6. District Court denied Kozohorsky's Motion to Dismiss Indictment.
On July 29, 2011, Kozohorsky filed a Motion to Dismiss based on alleged Double Jeopardy and Due Process violations. (Doc. 42) This motion was denied.
7. Superseding Indictment filed.
On January 4, 2012, a Superseding Indictment was returned by a ...