Sorensen v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHAWN RUSSELL SORENSEN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:19-CV-04190-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on Shawn Russell Sorensen’s
motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C.
§ 2255. 	See Docket No. 1.1 	Respondent the United States of America
(“government”) moved to dismiss Mr. Sorensen’s § 2255 petition without
holding an evidentiary hearing. 	See Docket No. 26. 	A round of briefing
occurred before this magistrate judge and then again before the district
court on objections to this court’s report and recommendation. 	There
now remains a single issue for which an evidentiary hearing is required.
Docket No. 51 at pp. 14-17, 28. 	Mr. Sorensen’s case was referred to this
magistrate judge for holding an evidentiary hearing on that singular
1 In this opinion, the court cites to documents filed in this civil habeas
case by simply citing the docket number of the document. 	The court
cites to documents in Mr. Sorensen’s underlying criminal case, United
States v. Sorensen, 4:16-cr-40062-KES-1 (D.S.D.), by citing to the docket
number in the criminal case preceded by “CR.”
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issue and recommending a disposition pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and pursuant to the October 16, 2014, standing
order of the Honorable Karen E. Schreier, United States District Judge.
FACTS
A. 	Proceedings in the District Court
1. 	Pretrial
Mr. Sorensen was indicted by a federal grand jury in the District of
South Dakota on May 10, 2016, and charged with conspiracy to
distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. 	See
CR Docket No. 1. 	Gayle Hartz was named as Mr. Sorensen’s co-
conspirator in count 1 of the indictment. 	A superseding indictment was
filed on September 20, 2016, which added a count to the indictment
charging Mr. Sorensen with one count of possessing a firearm after
having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).
See CR Docket No. 70.
Attorney Clint Sargent was appointed to represent Mr. Sorensen at
his initial appearance on May 23, 2016. 	See CR Docket No. 18.
Thereafter, on June 7, 2016, Mr. Sargent withdrew because
Mr. Sorensen retained private counsel, attorneys Rick Ramstad, Bruce
Rivers, and Coley Grostyan, the latter two of which are from Minneapolis,
Minnesota. 	See CR Docket Nos. 36, 37, 39, 40, 41, and 89.
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On September 16, 2016, the government filed an information and
notice pursuant to 21 U.S.C. § 851 of its intent to seek an increased
punishment based on Mr. Sorensen’s prior convictions for felony drug
offenses pursuant to 21 U.S.C. § 841(b)(1)(A), as defined in 21 U.S.C.
§ 802(44). 	See CR Docket No. 66. 	The effect of the government’s
information was that Mr. Sorensen’s mandatory minimum sentence, if
convicted, was life in prison.
Mr. Sorensen’s co-defendant, Ms. Hartz, entered into a plea
agreement before trial. 	See CR Docket No. 67. 	Mr. Sorensen proceeded
to a jury trial on October 4, 5, and 6, 2016. 	See CR Docket No. 137
(hereinafter “JT Trnscpt.”). 	At trial, twenty-two witnesses testified for the
government including Ms. Hartz and Mr. Sorensen’s wife, Dawn
Sorensen. 	See CR Docket No. 137-1 at pp. 78-114, 167-186 (JT Trnscpt.
Vol. II at pp. 254-90, 343-62).
2. 	The Trial
At trial, the evidence established the following: 2 	On April 25, 2016,
a United States Postal Inspector in Minneapolis applied for and received
a search warrant for a package sent from a post office in Arizona,
addressed to “Gayle Hartz, 404 S. Donaldson, Luvern [sic] Minn. 56156.”
2 These are the facts almost verbatim as they were recited in the
BACKGROUND section of the Eighth Circuit opinion on Mr. Sorensen’s
direct appeal, United States v. Sorensen, 893 F.3d 1060, 1063-64 (8th
Cir. 2018). 	In his § 2255 motion and supporting brief, Mr. Sorensen
contests that court’s legal conclusions, but he has not contested the
accuracy of the background facts as recited in the opinion.
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A certified drug dog alerted to the odor of narcotics. 	The return label on
the package read, “Dave Beckman, 13580 W. Port Royale, Suprise [sic]
AZ. 85379.” 	Upon searching the package pursuant to the warrant, the
postal inspector found clothing, toilet paper, paper towels, 192 grams of
cocaine, and over four kilograms of methamphetamine wrapped in
bundles of plastic and black electrical tape. 	The postal inspector
contacted a counterpart in Sioux Falls, South Dakota, which is
approximately 31 miles from Luverne, Minnesota, and requested that he
conduct a controlled delivery of the package, which the Sioux Falls
inspector did.
Before the package was delivered to Ms. Hartz’s home, an
anticipatory search warrant was granted for her home and her person.
After the controlled delivery to her home in Luverne, Minnesota, officers
observed a vehicle drive away from Ms. Hartz’s home. 	An officer stopped
the vehicle and arrested the driver, who was Ms. Hartz. 	Meanwhile,
other officers executed the warrant to search Ms. Hartz’s home, and
located the unopened delivered package. 	Ms. Hartz informed the officers
she had received the package on behalf of Shawn Sorensen. 	Ms. Hartz
had communicated with Mr. Sorensen via text message prior to its
delivery. 	Just after the package was delivered, Ms. Hartz texted
Mr. Sorensen, stating, “Its here. 	So get ur butt here.” 	Mr. Sorensen
replied, “I’m on my way.”
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The Minnesota agents informed members of the Sioux Falls Area
Drug Task Force (SFADTF) about Mr. Sorensen’s involvement. 	SFADTF
began conducting surveillance at Mr. Sorensen’s residence in Sioux
Falls. 	The SDADTF and Minnesota authorities cooperated to follow
Mr. Sorensen from his home in Sioux Falls to Ms. Hartz’s home in
Luverne, Minnesota. 	Officers arrested Mr. Sorensen immediately upon
his entrance into Ms. Hartz’s home in Luverne.
After his arrest, officers found $15,700 in cash in Mr. Sorensen’s
pocket, bundled into three separate bundles.3 	CR Docket No. 137-1 at
pp. 30-31 (JT Trnscpt. Vol. II at pp. 206-07). 	A search warrant of
Mr. Sorensen’s Sioux Falls home yielded methamphetamine, drug
paraphernalia, and a USPS mailing label for what appeared to be a
different package Mr. Sorensen mailed to Ms. Hartz on September 21,
2015. 	That label’s return address was also “Dave Beckman” in Phoenix,
Arizona.
A search warrant was also obtained for Mr. Sorensen’s vehicle.
That search uncovered Mr. Sorensen’s driver’s license, treasury checks
addressed to Mr. Sorensen, four cell phones, methamphetamine,
marijuana, cocaine, other drug substances, three firearms, drug
3 The money found in Mr. Sorensen’s pocket was denominated as follows:
74 $100 bills; 90 $50 bills; 189 $20 bills; 1 $10 bill; 1 $5 bill; and 5 $1
bills. 	CR Docket No. 100-1 at p. 36 (Trial Exhibit 39). 	One of the three
bundles contained $800 cash and the other two contained the balance of
$14,900 of the money. 	CR Docket No. 137-1 at pp. 30-31 (JT Trnscpt.
Vol. II at pp. 206-07.
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paraphernalia, and the USPS package mailing label and printed receipt
for the intercepted package. 	Also in Mr. Sorensen’s vehicle was his
wallet containing $510 in cash. 4 	CR Docket No. 100-1 at p. 18 (Trial
Exhibit No. 24).
The inspectors extracted data from two of Mr. Sorensen’s cell
phones. 	The extraction reports and physical examinations showed
Mr. Sorensen had “Gayle” saved as a contact in two of the phones which
were displayed to the jury at trial. 	He saved Ms. Hartz’ address under
each of the “Gayle” contact listings, and misspelled “Luverne” as
“Luvern,” just like the label on the intercepted package. 	The only other
address in each of the phones was the exact return address, including
the same misspelling of the City “Surprise” as “Suprise” as it also
appeared on the label of the intercepted package. 	The inspection of the
phones also confirmed the text messages between Ms. Hartz and
Mr. Sorensen regarding the intercepted package.
The inspectors also received proof Mr. Sorensen had called the ASK
USPS hotline to check the status of the intercepted package.
Additionally, the postal inspectors discovered USPS records showing
packages sent from Arizona to Ms. Hartz at addresses in Sioux Falls and
Luverne on at least six different occasions. 	Also, flight records revealing
that Mr. Sorensen took flights from Sioux Falls to Phoenix on dates
4 The money found in Mr. Sorensen’s wallet in his vehicle was
denominated as follows: 	4 $100 bills; 1 $50 bill; and 3 $20 bills. 	CR
Docket No. 100-1 at p. 18 (Trial Exhibit 24).
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corresponding with delivery of many of these packages were also
discovered.
At trial, Ms. Hartz provided extensive testimony about her
involvement with Mr. Sorensen. 	She testified that she met Mr. Sorensen
in the early 2000s when she and her boyfriend would consume
methamphetamine with Mr. Sorensen and his wife. 	Ms. Hartz began to
work for Mr. Sorensen in 2014, after she lost her job. 	She accepted
packages for Mr. Sorensen in exchange for money and drugs. 	Ms. Hartz
testified she accepted approximately six packages containing
methamphetamine for Mr. Sorensen.
A USPS forensic latent fingerprint analyst testified about latent
prints found on the adhesive side of the packing tape on the intercepted
package. 	She identified three prints on the tape which matched
Mr. Sorensen’s known fingerprints.
At trial, Mr. Sorensen’s wife, Dawn Sorensen, testified. 	CR Docket
No. 137-1 at p. 167 (JT Trnscpt. Vol. II at p. 343). 	On cross-
examination, Ms. Sorensen testified her husband may have borrowed
money from Larry Kuhnert to fix a black Ford truck that had been in an
accident. 	Id. at pp. 182-83 (JT Trnscpt. Vol. II at pp. 358-59). 	She
testified Mr. Kuhnert had the means to make such a loan to
Mr. Sorensen and that they had known each other for a long time such
that Mr. Kuhnert would be willing to make such a loan. 	Id.
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During the government’s initial closing argument, counsel argued
the following evidence: Mr. Sorensen’s multiple trips to Arizona, which
coincided with packages being mailed from Arizona to Ms. Hartz; text
messages from Mr. Sorensen’s phone to Ms. Hartz’s phone discussing
drug shipments and pickups; United States Postal Service mailing labels
and receipts found in Mr. Sorensen’s possession; Mr. Sorensen’s
fingerprint being found on the last package delivered to Ms. Hartz; and
the firearms found in Mr. Sorensen’s vehicle. 	CR Docket No. 137-2 at
pp. 25-41 (JT Trnscpt. Vol. III at pp. 445-61). 	The government never
mentioned the $15,700 in cash found on Mr. Sorensen’s person on the
date he was arrested in its initial argument. 	Id.
In rebuttal close, the government argued that Mr. Sorensen
supposedly lived on a disability income of $733 per month, but then
argued this was inconsistent with the large amount of expensive drugs
found in his vechicle, with his ability to make multiple trips to Arizona,
mail multiple packages with substantial postage costs, to buy multiple
pairs of $90 jeans, and to have $15,700 cash on his person and $510
cash in his wallet. 	CR Docket No. 137-2 at p. 54 (JT Trnscpt. Vol. III at
p. 474). 	The alternative, the government suggested, was that
Mr. Sorensen was involved in drug trafficking and this is where he
obtained the wherewithal to do and buy all of these things. 	Id.
The jury convicted Mr. Sorensen on both counts of the superseding
indictment. 	See CR Docket No. 97. 	After trial, but before sentencing,
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Mr. Sorensen dismissed attorneys Ramstad, Rivers, and Grostyan. 	See
CR Docket Nos. 108-110. 	Mr. Sorensen retained his original attorney,
Clint Sargent, to represent him for sentencing. 	Id.
On April 25, 2017, the district court sentenced Mr. Sorensen to life
in prison for his drug distribution conspiracy conviction, which sentence
was mandatory because of the effect of the government having filed its
§ 851 information. 	See CR Docket No. 148.
B. 	Mr. Sorensen’s Remaining Allegation in his § 2255 Motion
The sole remaining claim Mr. Sorensen asserted in his request for
§ 2255 relief is that trial counsel was ineffective in failing to investigate
and present at least the testimony of Larry Kuhnert.
C. 	Evidence Adduced at the Hearing
Pursuant to the district court’s order (Docket No. 51 at p. 28), this
magistrate judge held an evidentiary hearing on Mr. Sorensen’s claim.
Four witnesses testified at the hearing. 	The evidence adduced at the
hearing differed from the evidence presented to the district court on
objections to this magistrate judge’s previously-issued recommendation.
Specifically, at the time objections were made to the district court,
Mr. Sorensen presented an affidavit to the district court from Larry
Kuhnert stating that he had never been contacted by Mr. Sorensen’s
lawyers and asked about his testimony. 5 	See Docket No. 50-1. 	However,
5 This magistrate judge did not have the benefit of Mr. Kuhnert’s affidavit
at the time the original recommendation was made on Mr. Sorensen’s
§ 2255 motion.
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at the evidentiary hearing held on this matter, Mr. Kuhnert testified that
Mr. Sorensen’s lawyers had contacted him on two occasions: 	once prior
to trial by telephone and once during trial in a witness room at the
courthouse.
Mr. Kuhnert testified he told the lawyers on both occasions that he
had loaned Mr. Sorensen cash so that Mr. Sorensen could pay
Mr. Kuhnert’s brother for some work done on a Ford Bronco owned by
Mr. Sorensen. 	At the time he spoke to Mr. Sorensen’s lawyers,
Mr. Kuhnert testified he had loaned Mr. Sorensen money, but could not
recall the amount. 	At the evidentiary hearing, however, Mr. Kuhnert
testified the amount he loaned Mr. Sorensen was $14,000 and that he
was to pay the loan back to Mr. Kuhnert when he sold the Bronco.
Mr. Kuhnert testified he told the lawyers he was willing to testify to
this at trial, but the lawyers never called him as a witness. 	Mr. Kuhnert
could not remember the lawyers’ names, but he referenced the person he
talked to as the “lawyer from Minneapolis.” 	Both6 of Mr. Sorensen’s trial
attorneys’ offices were in Minneapolis, Minnesota.
Mr. Kuhnert testified at the evidentiary hearing that he never knew
Mr. Sorensen had a criminal history and he refused to believe it.
Mr. Kuhnert sat through all three days of trial and heard all the evidence
against Mr. Sorensen, but he flatly rejected it.
6 Mr. Ramstad was present for jury selection then was excused for the
remainder of trial. 	CR Docket No. 137 at pp. 31, 38 (JT Trnscpt. Vol. I at
pp. 31, 38).
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Mr. Sorensen also testified at the evidentiary hearing that
Mr. Kuhnert had loaned him $14,000 in cash to get his 1971 Ford
Bronco repaired. 	He testified he asked his lawyers to call Mr. Kuhnert as
a witness at his trial to help explain the $15,700 in cash he had on his
person upon his arrest.
Both of Mr. Sorensen’s trial attorneys, Coley Grostyan and Bruce
Rivers, testified at the evidentiary hearing. 	Mr. Grostyan confirmed that
Mr. Sorensen had told his lawyers about the loan from Mr. Kuhnert and
wanted Mr. Kuhnert to testify at trial. 	Mr. Grostyan had a vague
recollection of talking to Mr. Kuhnert by telephone prior to the trial and
discussing calling him as a witness with Mr. Rivers. 7 	Ultimately,
Mr. Grostyan testified as a matter of strategy the lawyers decided not to
call Mr. Kuhnert as a witness for two reasons: 	(1) the cash found on
Mr. Sorensen upon his arrest was a very small part of the government’s
case against him and (2) there was a risk that the jury could have
received the evidence from Mr. Kuhnert differently than counsel intended
it be received. 	Mr. Grostyan testified that you don’t want to lose your
credibility with the jury, and he felt the evidence against Mr. Sorensen
was so overwhelming that presenting Mr. Kuhnert’s testimony on such a
7 Mr. Grostyan did not have a document in his file memorializing this
contact with Mr. Kuhnert. 	He attempted to obtain cell phone records
that would document the contact but was told by his phone company
that they did not have records on his phone dating back that far.
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minor part of the government’s case might be viewed by the jury as
“grasping at straws.”
Mr. Rivers remembered the facts surrounding Mr. Kuhnert’s facts,
but did not remember Mr. Kuhnert’s name specifically. 	Mr. Rivers
testified that he and Mr. Grostyan talked about Mr. Kuhnert’s testimony
at length, including discussing it with Mr. Sorensen. 	Mr. Rivers felt the
cash was not an essential part of the government’s case and that
Mr. Kuhnert’s testimony presented a “double-edged sword” in that the
jury might think Mr. Sorensen took Mr. Kuhnert’s money, which was
supposed to be used to get his Bronco out of the shop, to instead bring it
to a drug deal to buy drugs. 	In addition, Mr. Rivers testified that Mr.
Sorensen had the cash on his person stored in three separate bundles,
which was inconsistent with borrowing it from Mr. Kuhnert. 	Mr. Rivers
testified he and Mr. Grostyan discussed this issue with Mr. Sorensen,
and Mr. Sorensen was in agreement with the lawyers’ decision not to call
Mr. Kuhnert to testify.
DISCUSSION
A. 	Ineffective Assistance of Counsel Claims
1. 	Standard Applicable to Ineffectiveness Claims
The district court set forth the applicable standard for
Mr. Sorensen’s claim that counsel was ineffective for failing to investigate
and to call Larry Kuhnert as a witness at trial:
In order to establish ineffective assistance of counsel, a
petitioner must meet the two-pronged standard articulated
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by the United States Supreme Court in Strickland v.
Washington. 	See 466 U.S. 668, 687 (1984). 	“First, the
[petitioner] must show that counsel’s performance was
deficient.” 	Id. 	This “performance prong” requires a
petitioner to show that counsel’s representation was deficient
and “fell below an objective standard of reasonableness.” 	Id.
at 687-88. 	To show deficiency, a petitioner must show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” 	Ragland v. United States, 756 F.3d 597,
599-600 (8th Cir. 2014) (quoting Strickland, 466 U.S. at
687). 	This court must assess “whether counsel’s assistance
was reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688.
There is a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” 	Id. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
“Thus, a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of
counsel’s conduct.” 	Id. at 690.
* * *
When determining whether counsel’s performance was
deficient, “[t]he decision not to call a witness is a virtually
unchallengeable decision in trial.” 	United States v. Staples,
410 F.3d 484, 488 (8th Cir. 2005) (internal quotation
omitted). 	But reasonable trial strategy involves “choices
made after thorough investigation of law and facts relevant
to plausible options . . . and strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.” 	Francis v. Miller, 557 F.3d
894, 901 (8th Cir. 2009) (quoting Strickland, 466 U.S. at
690-91). 	“[T]he strength of the general presumption that
counsel engaged in sound trial strategy ‘turns on the
adequacy of counsel’s investigation.’ ” 	Id. (quoting White v.
Roper, 416 F.3d 728, 732 (8th Cir. 2005)).
See Docket No. 51 at pp. 5-6, 15.
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2. 	Application of Strickland to Counsel’s Decision
a. 	Deficient Conduct
Given the different record presented at the evidentiary hearing in
this matter, the court finds counsel’s representation of Mr. Sorensen
regarding Larry Kuhnert’s testimony was not deficient. 	First, as both
counsel noted, the government’s evidence against Mr. Sorensen was
overwhelming. 	The government had compiled data showing
Mr. Sorensen made trips to Arizona during the precise times when
multiple packages were mailed from Arizona to Gayle Hartz’s house. 	The
government showed that Mr. Sorensen had documentation in his vehicle
and at his home showing he had paid for those packages to be mailed.
Regarding the package delivered on the day of Mr. Sorensen’s
arrest, the government presented evidence that Mr. Sorensen had
documentation for the mailing of this package from Arizona, had
contacted the United States Postal Service about the location of the
package, his fingerprint was on the tape used to seal the package up,
and he and Gayle Hartz texted each other about the package and made
arrangements for him to come get it at her home.
In addition to the $15,700 in cash Mr. Sorensen had on him at the
time of his arrest, he had another $510 in cash in his wallet in his
vehicle parked outside Ms. Hartz’s house. 	In that vehicle, he also had a
wide assortment of drugs, the value of which was significant.
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At the time Mr. Kuhnert talked to the lawyers, he could not
remember the exact amount of money he had given Mr. Sorensen. 	Even
if he had remembered it was $14,000, as he now remembers that sum,
Mr. Sorensen still had $1,700 in cash on his person and $510 in cash in
his wallet—a total of $2,210 in cash—that Mr. Kuhnert’s testimony did
nothing to explain away.
Counsel was well within their professional judgment to decide that
the money was only a drop in the bucket of the government’s evidence
and that calling Mr. Kuhnert to testify to the $14,000 loan would not
have negated the overwhelming evidence against Mr. Sorensen.
Counsel’s judgment was also sound in believing Mr. Kuhnert’s testimony
may have harmed Mr. Sorensen by leading the jury to believe he had
taken advantage of Mr. Kuhnert or that he and his lawyers were
“grasping at straws.” 	The court finds counsel’s conduct was not
deficient.
But Mr. Sorensen argues his counsel did not do a thorough
investigation. 	He points out counsel did not document their pretrial
interview with Mr. Kuhnert, they did not hire an investigator, and they
did not do a criminal records check of Mr. Kuhnert. 	The court finds this
argument misses the mark.
Even if Mr. Kuhnert had a spotless record and was a credit to his
country in every way, the lawyers did not reject his testimony because
they feared the jury would not find him credible. 	Rather, they felt the
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evidence of the loan was marginal at best given the mountain of the
government’s evidence against Mr. Sorensen. 	Also, they felt putting
Mr. Kuhnert on the stand had the potential to backfire—the jury may
have believed Mr. Kuhnert and thought Mr. Sorensen took advantage of
him by using the loan money to buy drugs.
As the government countered at the evidentiary hearing in this
matter, it is significant that Mr. Sorensen took the cash into Ms. Hartz’s
house with him where he was expecting to pick up the drugs. 	If the
money did not have anything to do with drugs, why not leave the cash in
the vehicle along with the other $510 he left there? 	A number of other
questions might have been raised by Mr. Kuhnert’s testimony. 	If the
bulk of the money came from Mr. Kuhnert, why did Mr. Sorensen
combine the money with other funds and bundle it into three separate
bundles? 	Mr. Kuhnert allegedly loaned the money to Mr. Sorensen so
Mr. Sorensen could pay Mr. Kuhnert’s brother for automobile work—why
didn’t Mr. Kuhnert give the money directly to his own brother? 	Why
didn’t Mr. Kuhnert write a check to his brother and give that to
Mr. Sorensen? 	The presentation of Mr. Kuhnert’s testimony would not
have “moved the ball down the field,” in the words of Mr. Rivers, and had
the potential to raise a host of other issues and questions that might not
reflect well on Mr. Sorensen. 	Counsel was acting as constitutionally
effective counsel in making the decision not to present Mr. Kuhnert’s
testimony.
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b. 	Prejudice
For the same reasons discussed above, the court concludes
Mr. Sorensen cannot show prejudice. 	Had Mr. Kuhnert testified, even if
the jury did not impute any nefarious motives to Mr. Sorensen as a
result of that testimony, there was still overwhelming evidence against
Mr. Sorensen as discussed above. 	All Mr. Kuhnert’s testimony would
have done is explained the presence of $14,000 in cash on
Mr. Sorensen’s person on the day of Mr. Sorensen’s arrest. 	His
testimony would not have explained away the other $2,210 8 in cash
Mr. Sorensen possessed that day.
Nor would Mr. Kuhnert’s testimony have explained away
Mr. Sorensen’s text messages with Ms. Hartz about drug deliveries, his
fingerprint on the tape on the package, his contact with the postal
service checking up on the delivery of the package, his many trips to
Arizona that coincided with multiple other packages mailed from Arizona
to Ms. Hartz’s residence, the significant amount of drugs found in
Mr. Sorensen’s vehicle9 , or the mailing labels and additional drug items
found in his home.
8 $1,700 on his person and $510 in his vehicle just outside Ms. Hartz’s
house.
9 Police found 6 grams of marijuana, 1.10 grams of cocaine, 15.1 grams
of methamphetamine, and 19.23 grams of psilocybin mushrooms inside
Mr. Sorensen’s vehicle. 	CR Docket No. 100-1 at p. 33 (Trial Exhibit 37);
Trial Exhibits 57-63.
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Mr. Sorensen argues that the money was a significant part of the
government’s case and argues that countering even that one factor could
have made a difference. 	The court disagrees. 	Not only was the money a
very small part of the government’s case, the government did not even
mention the money in its initial closing argument. 	It was mentioned
briefly in rebuttal closing argument, but the government did not argue
the money in and of itself was damning. 	Instead, the government
pointed to the totality of circumstances—all the pricey things
Mr. Sorensen did and owned—and asked how he could legitimately have
paid for all those things on a $773-per-month disability check. 	CR
Docket No. 137-2 at p. 54 (JT Trnscpt Vol. III at p. 474). 	The cash in
Mr. Sorensen’s pocket was the least of his worries concerning the
government’s evidence against him.
There is no possibility that presenting Mr. Kuhnert’s testimony
might have changed the outcome of Mr. Sorensen’s trial. 	Accordingly,
the court recommends Mr. Sorensen’s final remaining § 2255 claim be
dismissed with prejudice.
CONCLUSION
Based on the foregoing law, facts, and analysis, this magistrate
judge respectfully recommends that the government’s motion to dismiss
[Docket No. 26] be granted and that Mr. Sorensen’s last remaining claim
for relief be dismissed with prejudice.
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19
NOTICE OF RIGHT TO APPEAL
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C.
§ 636(b)(1), unless an extension of time for good cause is obtained. 	See
FED. R. CIV . P. 72; 28 U.S.C. § 636(b)(1)(B). 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Id. 	Objections must be timely and specific in order to require de novo
review by the district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir.
1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).
DATED October 19, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
Case 4:19-cv-04190-KES Document 60 Filed 10/19/21 Page 19 of 19 PageID #: <pageID>