Opinion
19-17337
10-17-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAURICE HUNT, Defendant-Appellant.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding D.C. Nos. 1:17-cv-01341-LJO, 1:13-cr-00189-LJO-SKO-1
Before: FRIEDLAND, BENNETT, and BRESS, Circuit Judges.
MEMORANDUM
Federal prisoner Maurice Hunt appeals from the district court's order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Ratigan, 351 F.3d 957, 961 (9th Cir. 2003), we affirm.
Hunt first contends that his conviction for sex trafficking of a minor or by force, fraud, and coercion, in violation of 18 U.S.C. § 1591(a)(1), must be vacated because the superseding indictment was constructively amended. Hunt further contends that he can establish cause and prejudice to excuse the procedural default of this claim. We need not address whether the claim is procedurally defaulted because, like the district court, we conclude that this claim fails on the merits. See Ayala v. Chappell, 829 F.3d 1081, 1096 (9th Cir. 2016) (observing that the court of appeals may reach the merits of a habeas petition despite an asserted procedural bar if the claims in the petition are clearly not meritorious).
At trial, the court instructed the jury that it could convict if it found that Hunt took his actions:
number one, by knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion, or any combination of such means, would be used to cause SG to engage in a commercial sex act, or number two, knowing that SG had not attained the age of 18 years, or recklessly disregarded the fact or had a reasonable opportunity to observe SG, and that SG would be cause[d] to engage in a commercial sex act ....
By contrast, the superseding indictment charged only that Hunt acted:
knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion, and any combination of such means, would be used to cause the person to engage in a commercial sex act, or that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act.
The superseding indictment did not include the "reasonable opportunity toobserve" language included in the court's jury instructions. We thus agree that the superseding indictment was constructively amended. See United States v. Davis, 854 F.3d 601, 604-05 (9th Cir. 2017). But as the district court properly concluded, the constructive amendment was harmless. See United States v. Montalvo, 331 F.3d 1052, 1056-58 (9th Cir. 2003) (per curiam) (applying harmless error standard from Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), to constitutional errors raised in § 2255 proceedings). To convict Hunt under § 1591(a), the jury needed to find that the government proved beyond a reasonable doubt the knowledge-of-age element or the means of force, fraud, or coercion element. See 18 U.S.C. § 1591(a). The jury returned a special verdict form finding that the government proved both the knowledge-of-age element and means of force, fraud, and coercion element of the § 1591(a) offense. The means of force, fraud, or coercion element was not constructively amended and independently supports Hunt's § 1591(a) conviction. The constructive amendment of the knowledge-of-age element did not, therefore, have a "substantial and injurious effect" on the jury's verdict. See Montalvo, 331 F.3d at 1058 (quoting Brecht, 507 U.S. at 638). And contrary to Hunt's argument, the record shows that these two alternative elements were not interwoven in the jury instructions.
Hunt also contends that he was denied effective assistance of counsel because appellate counsel failed to raise the constructive amendment claim on appeal. But Hunt cannot establish that appellate counsel's performance was prejudicial even if it were deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Hunt's trial counsel did not object to the erroneous jury instruction. Thus, on direct appeal, this court would have applied plain-error review to Hunt's unpreserved claim of constructive amendment. See United States v. Ward, 747 F.3d 1184, 1188 (9th Cir. 2014) ("[W]here the defendant fails to object to the district court's jury instructions, a constructive amendment claim is reviewed for plain error."). For the same reason we now find the error harmless, Hunt could not have shown on direct appeal that the constructive amendment affected his substantial rights. See United States v. Olano, 507 U.S. 725, 732 (1993). So appellate counsel did not prejudice Hunt by failing to raise the constructive amendment claim on appeal. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
In his briefing on appeal and in a separate motion, Hunt requests that we treat his original § 2255 motion and related filings as a supplemental brief on uncertified issues. We grant this request and treat these additional arguments as a motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e). Having done so, we deny the motion because Hunt has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Hunt's remaining motion to expand the certificate of appealability is denied for the same reason.
The government's motion for an extension of time to file an opposition to Hunt's motion for release pending appeal is granted. The opposition has been filed. Hunt's motion for release pending appeal is dismissed as moot. All other requests are denied.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).