Self v. USA

Filing 35

ORDER ADOPTING 29 REPORT AND RECOMMENDATION. The motion to vacate sentence 1 is denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/15/2015. (ACL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, 12 CV13-08199-PCT-DGC (JFM) CR10-08036-PCT-DGC Plaintiff/Respondent, 10 11 No. ORDER v. Richard Larry Self, Defendant/Movant. 13 14 15 Movant Richard Larry Self filed a motion to vacate, set aside, or correct his 16 sentence pursuant to 28 U.S.C. § 2255. CVDoc. 1.1 United States Magistrate Judge 17 James F. Metcalf issued a report and recommendation (“R&R”) recommending that the 18 motion be denied. 19 February 2, 2015. CVDoc. 34. For the reasons set forth below, the Court will accept the 20 R&R and deny Movant’s motion. 21 I. CVDoc. 29 at 52. Movant filed an objection to the R&R on Background. 22 On March 9, 2010, a grand jury indicted Movant on four counts of Possession of 23 Child Pornography, with forfeiture allegations. CRDoc. 1. Movant was arrested on 24 March 14, 2010, and the Court appointed trial counsel soon after. CRDocs. 5, 14, 19. 25 Movant made four motions to continue trial, the last of which was filed on 26 September 17, 2010. CRDocs. 20, 23, 26, 32. The Court granted all four motions and 27 1 28 Documents filed in CV-13-08199-PCT-DGC will be referred to as “CVDoc” and documents filed in the related criminal action, CR-10-8036-PCT-DGC, will be referred to as “CRDoc.” 1 scheduled trial to start November 17, 2010. CRDocs. 21, 25, 28, 41, 49. 2 On September 21, 2010, the government filed a superseding indictment charging 3 Movant with three counts of Transportation of Child Pornography, three counts of 4 Possession of Child Pornography, and forfeiture allegations. 5 October 13, 2010, Movant’s counsel filed a motion to suppress evidence obtained from 6 the search warrant issued January 27, 2010. CRDoc. 47. The motion was based on 7 staleness and lack of probable cause. CRDoc. 47 at 6-10. The parties fully briefed the 8 issue, and the Court denied Movant’s motion. CRDocs. 47, 56, 65, 69. CRDoc. 35. On 9 On November 10, 2010, one week before Movant’s trial date, Movant requested 10 new counsel. CRDoc. 74; CVDoc. 34 at 37-38. Movant believed his attorney had failed 11 to properly investigate his case (by not pursuing leads Movant suggested or interviewing 12 witnesses Movant claimed would discredit prosecution witnesses), did not believe he was 13 innocent, and would not present him with an unbiased defense. 14 Movant’s complaints, the Court rejected the request, stating that based on the information 15 Movant had provided, a different lawyer would not give Movant a better defense than the 16 one current counsel was set to present. CRDoc. 74. After considering 17 Trial proceeded as scheduled, and the jury found Movant guilty on all counts. Id.; 18 CRDoc. 90. Counsel moved for a downward departure and variance at the sentencing. 19 CRDoc. 93. The Court denied the request for an extension and Movant was sentenced to 20 concurrent terms of 135 months for each transportation charge and 120 months for each 21 possession charge – an effective sentence of 135 months. CRDocs. 95, 97. 22 On appeal, Movant challenged the trial court’s denial of his motion to suppress, 23 arguing that the search warrant was stale and insufficient to establish probable cause. 24 CRDoc. 117. 25 substantively unreasonable. Id. The Ninth Circuit rejected Movant’s claims and affirmed 26 his conviction and sentence. Id. 27 28 Movant also challenged his sentence as procedurally erroneous and On July 29, 2013, Movant filed his pro se motion to vacate. CVDoc. 1. Magistrate Judge Metcalf issued his R&R on October 31, 2014. CVDoc. 29. Movant has -2- 1 filed an objection on Grounds One through Eight. CVDoc. 34. 2 II. Legal Standard. 3 Under § 2255, a person in custody may “move the court which imposed the 4 sentence to vacate, set aside or correct the sentence” on the grounds that “the sentence 5 was imposed in violation of the Constitution or laws of the United States, or that the court 6 was without jurisdiction to impose such sentence, or that the sentence was in excess of 7 the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 8 2255(a). 9 A party may file specific written objections to the R&R’s proposed findings and 10 recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must 11 undertake a de novo review of those portions of the R&R to which specific objections are 12 made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 13 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole 14 or in part, the findings and recommendations made by the magistrate judge. Fed. R. Civ. 15 P. 72(b); 28 U.S.C. § 636(b)(1). 16 In the context of ineffective assistance of counsel claims, “[j]udicial scrutiny of 17 counsel’s performance must be highly deferential.” Strickland v. Washington, 466 U.S. 18 668, 689 (1984). The Court must apply a strong presumption that counsel rendered 19 adequate assistance and exercised reasonable professional judgment. Id. To prevail on a 20 claim for ineffective assistance, Movant must show that “(1) his attorney’s performance 21 was unreasonable under prevailing professional standards, and (2) a reasonable 22 probability that but for counsel’s unprofessional errors, the results would have been 23 different.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 24 Strickland, 466 U.S. at 687-94). 25 probability sufficient to undermine confidence in the outcome.” Id. 26 III. Strickland defines reasonable probability as “a Analysis. 27 1. 28 Movant objects on Ground 1(a), asserting that Judge Metcalf misunderstood his Ground 1: Ineffective Assistance on Search Warrant. -3- 1 claim; on Grounds 1(b) and (c), arguing that Counsel was ineffective by failing to 2 challenge the search based on improper service of the warrant; and on Ground 1(d), 3 arguing that counsel failed to challenge the illegal search and seizure of Movant’s person 4 during the warrant’s execution. CVDoc. 34 at 2-9. 5 A. Ground 1(a). 6 Movant asserts that his Ground 1(a) claim was misunderstood as challenging “the 7 staleness of the evidence in the probable cause.” Id. at 2. In clarifying his argument, 8 Movant claims that trial counsel was ineffective because she failed to challenge the 9 search warrant on the basis that it contained no new probable cause, and was an improper 10 reissue of a previously voided warrant. Id. at 2-3 (citing Sgro v. United States, 287 11 U.S. 206 (1932)). 12 Judge Metcalf understood Movant’s position on Ground 1(a) – that the second 13 search warrant was improper because it did not present new support for probable cause, 14 and that a new probable cause statement should have been required for a valid warrant. 15 CVDoc. 29 at 6-8. Judge Metcalf decided that Sgro v. United States, 287 U.S. 206 16 (1932), and the other cases relied on by Movant do not stand for the proposition that 17 every warrant must be accompanied by new affidavits or statements. Id. at 7. Rather, a 18 warrant must simply be based on timely information. 19 Metcalf’s analysis to be sound. See id. at 6-8. Movant failed to show that new affidavits 20 and statements of probable cause were required for a valid search warrant, and trial 21 counsel’s “failure to raise a meritless legal argument does not constitute ineffective 22 assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). 23 B. Id. The Court finds Judge Grounds 1(b) and (c). 24 In his objection on Grounds 1(b) and (c), Movant reasserts the same arguments of 25 improper service he made in his motion to vacate. See CVDoc. 2 at 2-3; CVDoc. 21 at 3- 26 4; CVDoc. 34 at 3-6. The Court agrees with the R&R’s analysis that a challenge to the 27 search based on timing or lack of service would have been meritless, and failure to make 28 the arguments was not ineffective assistance. CVDoc. 29 at 8-11. -4- 1 C. Ground 1(d). 2 Movant’s objection on Ground 1(d) is somewhat unclear. See CVDoc. 34 at 6-9. 3 In his motion to vacate, Movant argued that trial counsel should have challenged the 4 search of his truck on the ground that agents improperly searched Movant’s person, 5 improperly seized Movant’s effects, and improperly detained Movant without issuing a 6 Miranda warning. CVDoc. 2 at 3-5; CVDoc. 21 at 4-6. Judge Metcalf found that a 7 challenge of the search by trial counsel on those grounds would have been meritless. 8 CVDoc. 29 at 11-14. Further, Judge Metcalf noted that even if the court assumed the 9 searches were improper, Movant failed to show how he was prejudiced by the search of 10 his personal effects. Id. at 14. In his objection, Movant states that he believed he was 11 under arrest during his detention and that he need not show prejudice. CVDoc. 34 at 7-9. 12 The Court has reviewed the R&R’s treatment of Ground 1(d) and agrees that any 13 challenge to the search of Movant’s person or to his detention would have been meritless. 14 CVDoc. 29 at 11-14. Movant’s claim that he was not given a Miranda warning lacks 15 merit because Movant does not claim that he was interrogated or that any statement 16 obtained in violation of Miranda was used against him at trial. See United States v. Kim, 17 292 F.3d 969, 976 (9th Cir. 2002) (holding that a defendant is entitled to a Miranda 18 warning when police questioning exceeds the scope of a Terry stop and becomes a 19 custodial interrogation); see also United States v. Patane, 542 U.S. 630, 641 (2004) 20 (“Potential violations [of the Miranda rule] occur, if at all, only upon the admission of 21 unwarned statements into evidence at trial.”). 22 2. 23 Movant states in his objection that he stands by his original challenge that counsel 24 was ineffective in failing to challenge Movant’s convictions based on double jeopardy. 25 CVDoc. 34 at 9. Movant reasserts that: (1) the three possession of child pornography 26 charges amounted to a single offense, and (2) his possession convictions were lesser 27 included offenses of his transportation convictions. 28 CVDoc. 21 at 6-8. Ground 2: Ineffective Assistance on Double Jeopardy. -5- Id. at 9-10; CVDoc. 2 at 5-6; 1 Applying 18 U.S.C. § 2252(a)(5)(B) and its reference to a defendant’s possession 2 of “any” material containing child pornography, Judge Metcalf found that possession of 3 multiple materials containing child pornography established multiple violations of the 4 possession statute. CVDoc. 29 at 16. Because each possession charge in this case relied 5 on separate material, multiple possession charges were appropriate and a challenge by 6 trial counsel on this basis would have been futile. Id. 7 Judge Metcalf also determined that although possession of child pornography can 8 be a lesser included offense of transportation of child pornography, Movant failed to 9 show that the images used to support his possession charges were the same images used 10 to support his transportation charges. Id. at 17. Movant therefore has failed to show that 11 counsel was ineffective for failing to raise it. 12 13 The Court has reviewed Judge Metcalf’s reasoning on these issues and finds it to be correct. Movant’s Ground 2 objection is without merit and will be denied. 14 3. 15 Movant asserts that (1) trial counsel failed to challenge admission of prejudicial 16 stories based on authenticity, and (2) the government failed to investigate fingerprint and 17 DNA evidence that would have exonerated Movant.2 CVDoc. 34 at 10-15. 18 Ground 3: Ineffective Assistance on Prosecutorial Misconduct. A. Failure to Challenge Stories Based on Authenticity. 19 On February 8, 2010, a search warrant was executed at Movant’s residence. 20 CVDoc. 29 at 2. Along with other evidence, agents found several hundred pages of 21 printed documents containing fictional narratives describing sexual conduct with children 22 (the “stories”). Id. Following notice that the government intended to use the stories at 23 trial, Movant’s counsel argued the stories were unfairly prejudicial under Federal Rule of 24 Evidence 404(b) and that the government possessed other evidence sufficient to show 25 26 27 28 2 Movant’s argument regarding a vindictive superseding indictment was raised for the first time in Movant’s reply brief. CVDoc. 29 at 18 n.5; CVDoc. 21 at 8-11. The Court “will not consider new arguments raised for the first time in a reply brief.” Bach v. Forever Living Prods. U.S., Inc., 473 F. Supp. 2d 1110, 1122 n.6 (W.D. Wash. 2007) (citing Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 n.6 (9th Cir. 2004)); see Gadda v. State Bar of Cal., 511 F.3d 933, 937 n.2 (9th Cir. 2007). -6- 1 Movant had knowledge of the contents of the electronic storage media that contained 2 child pornography. 3 admissible only with redactions and other limitations. CRDoc. 70 at 5-7. CRDoc. 57 at 7. The Court concluded that the stories were 4 Movant contends that his counsel should have challenged the authenticity of the 5 stories and the fact that the admitted stories involved a truck driver, a veteran, or a 6 character named “Rick,” all of which might describe Movant. 7 arguments that were made by defense counsel regarding the stories and the limitations the 8 Court placed on their admission at trial, including limiting the number of stories 9 admitted, redacting portions of the stories, and limiting instructions to the jury, the Court 10 cannot conclude that the evidence would have been any different had defense counsel 11 made the arguments Movant suggests. Copies of the stories were found in Defendant’s 12 home and on electronic storage media in his truck, facts the jury could take into account 13 in deciding whether they were authentic. The similarity of some of the stories to Movant 14 was further evidence of their authenticity. 15 conclusion that the additional arguments suggested by Movant would have had no effect 16 on admission of the redacted stories at trial. CVDoc. 29 at 19-20. Because it is unlikely 17 that the outcome would have been different, trial counsel was not ineffective for failing to 18 make the arguments identified by Movant. See Strickland, 466 U.S. at 691-92. 19 B. Given the vigorous The Court agrees with Judge Metcalf’s Failure to Investigate Fingerprint and DNA Evidence. 20 Movant argues that trial counsel was ineffective for failing to assert a claim of 21 prosecutorial misconduct based on the government’s failure to follow through on 22 fingerprint and DNA evidence. CVDoc. 34 at 14-15. The R&R concluded that Movant 23 “misapprehends the obligation of the prosecution,” and has overstated the persuasive 24 effect that the DNA and fingerprint evidence would have had. CVDoc. 29 at 22-23. The 25 R&R also notes that trial counsel may have had a tactical reason for not pursuing the 26 evidence in question. Id. at 23-24. Movant objects to these conclusions, and argues that 27 the persuasive effect of the testing cannot be overstated because it would have rebutted 28 testimony from his wife and supported Movant’s denial of ownership. CVDoc. 34 at 14- -7- 1 15. Additionally, Movant claims “there is no possible way for the magistrate court to 2 constru [sic] [that trial counsel’s decision not to pursue testing was tactical], short of 3 talking to the dense [sic] attorney.” CVDoc. 34 at 15. 4 Movant’s objections are without merit. The R&R’s statement that trial counsel’s 5 decision not to pursue testing may have been tactical is supported by the fact that trial 6 counsel highlighted the lack of testing during trial, both on cross examination and in 7 closing argument. CRDoc. 112 at 397-98; CRDoc. 113 at 441. Defense counsel might 8 well have concluded that the ability to make these arguments at trial outweighed the 9 potential benefits and risks of pushing the government to complete the testing. 10 Additionally, the government had no obligation to pursue the fingerprint and DNA 11 analysis, and a prosecutorial misconduct charge on this basis would have been meritless. 12 See Arizona v. Youngblood, 488 U.S. 51, 59 (1988) (“[T]he defendant is free to argue to 13 the finder of fact that a . . . test might have been exculpatory, but the police do not have a 14 constitutional duty to perform any particular tests.”); United States v. Polizzi, 801 F.2d 15 1543, 1553 (9th Cir. 1986) (holding government has no duty to disclose exculpatory 16 material that the prosecutor was neither aware of nor in possession of). 17 4. 18 Movant asserts that trial counsel was deficient in failing to challenge admission of 19 the fictional stories for lack of attribution. CVDoc. 34 at 16-19. He also claims trial 20 counsel failed to investigate evidence that would have supported his denial of authorship. 21 As discussed in the R&R, trial counsel did oppose the stories’ admission under 22 Federal Rule of Evidence 404(b) and 403, and renewed the objection again at trial to 23 every story admitted. CVDoc. 29 at 26. Counsel also argued to the jury that the 24 government could not attribute the stories to Movant, pointing out that multiple people 25 had access to Movant’s residence, computer, and other media while Movant was away 26 for extended periods of time as a truck driver. CRDoc. 113 at 442-44. Ground 4: Failure to Object to Prior Bad Acts. 27 “[A] court must indulge a strong presumption that counsel’s conduct falls within a 28 wide range of reasonable professional assistance” and “the defendant must overcome the -8- 1 presumption that . . . the challenged action ‘might be considered sound trial strategy.’” 2 Strickland, 466 U.S. at 689 (citation omitted). “There are countless ways to provide 3 effective assistance in any given case.” Id. Movant has failed to show trial counsel’s 4 decisions as anything but reasonable trial strategy, and thus the Court will deny his 5 Ground 4 objection. 6 5. 7 Movant argues that trial counsel was ineffective because she did not introduce the 8 following evidence: (1) AOL account time of access logs; (2) that Movant’s AOL 9 account information and credit/debit card information were posted on a corkboard so 10 others could pay bills; (3) a receipt showing that Movant’s wife purchased eight of the 11 thumb drives that were found in Movant’s truck, along with the bag they were found in; 12 (4) evidence that Movant used a different computer than the one that was found to have 13 child pornography; (5) evidence that four of the five computers seized were free of any 14 child pornography; and (6) evidence to impeach Movant’s wife by showing she had a 15 propensity to lie about Movant. CVDoc. 34 at 19-24. Further, Movant claims trial 16 counsel should have called the following witnesses: James Holdgrafer, Laura Holdgrafer, 17 Robin Dufresne, and Sandy Maranda. 18 witnesses would have testified that Movant did not take a computer with him on road 19 trips unless his wife or daughters were accompanying him, Movant’s wife brought the 20 computer on the road trip on which they were searched, Movant’s brother-in-law had 21 access to the computers for over a month, and Movant’s wife used the thumb drives for 22 pictures and music storage. Id. Ground 5: Omitted Evidence. Id. at 20-22. According to Movant, these 23 Movant concedes that trial counsel did elicit testimony on cross-examination that 24 others had access to his home, computer, thumb drives, truck, and AOL Account. Id. at 25 19-20. Movant also concedes that trial counsel elicited testimony from government 26 experts that they could not place defendant at the computer, or say with certainty who 27 plugged in the thumb drives to load or view files. Id. 28 Judge Metcalf reviewed each of Movant’s omitted evidence claims in great detail. -9- 1 CVDoc. 29 at 29-40. The Court has reviewed these claims and Movant’s objections, and 2 agrees with Judge Metcalf’s analysis. Regarding witnesses not selected to testify, trial 3 counsel had strong tactical reasons for not calling them. Id. at 33-35. With regard to 4 evidence that Movant’s wife purchased the thumb drives and bag seized during the 5 search, that four of five computers were free of child pornography, and that Movant did 6 not frequently take a laptop with him on road trips, many of these facts were brought out 7 on cross-examination and the remainder would not have altered the outcome of the trial. 8 Id. at 32, 35-38. With regard to evidence that Movant’s wife was a perjurer, Federal Rule 9 of Evidence 608(b) prevented use of the exhibits Movant suggests. Id. at 39. 10 These arguments are classic examples of second-guessing strategic decisions by 11 trial counsel. The presumption in favor of trial counsel’s decisions precludes habeas 12 relief on such a basis. Ground 5 lacks merit. 13 6. 14 Movant argues that trial counsel was ineffective because she failed to correct a 15 number of inaccuracies in the pre-sentence report (“PSR”), did not allow Movant to 16 interview with the probation officer, and never provided Movant with a copy of the PSR. 17 CVDoc. 34 at 24-31; CVDoc. 2 at 17-18. Ground 6: Errors in the Pre-Sentence Report. 18 The R&R addressed each claim regarding the PSR and found they lacked merit. 19 CVDoc. 29 at 41-44. The Court agrees. The Court found that Movant had no criminal 20 history points, resulting in a criminal history category of I, and sentenced him at the 21 bottom of the guideline range. CRDoc. 114 at 6, 11. The Court based its sentencing 22 decision on Movant’s possession of hundreds of photographs and videos of child 23 pornography, his perpetuation of the market for child pornography, his fixation on sexual 24 abuse of children as reflected in many stories he wrote about abusing children, and his 25 failure to accept responsibility. CRDoc. 114 at 10-11. Movant has not shown that the 26 alleged errors in the PSR concerning his prior arrests and various allegations of sexual 27 abuse had any effect on his sentence. See Strickland, 466 U.S. 691 (“An error by 28 counsel, even if professionally unreasonable, does not warrant setting aside the judgment - 10 - 1 of a criminal proceeding if the error had no effect on the judgment.”). 2 Nor can the Court conclude that trial counsel was ineffective when she 3 recommended that Movant not have an interview with the probation officer who was 4 preparing the PSR. See CVDoc. 29 at 43-44. Trial counsel may well have concluded 5 that Defendant’s demeanor and lack of contrition would result in a less favorable 6 recommendation. Additionally, Movant has failed to show how the interview would have 7 affected the outcome of his sentencing. See Strickland, 466 U.S at 691-92. 8 Lastly, Movant claims that trial counsel never provided him with a copy of the 9 PSR or reviewed it with him. This claim is significantly undermined, however, by the 10 fact that Movant referred to the “Probation Report” in his pre-sentencing letter to the 11 Court, commenting on some of the matters raised in this habeas petition. CRDoc. 96 at 2. 12 Nor did Movant contradict his counsel’s specific statement at the sentencing hearing that 13 she had reviewed the PSR with him. Id. at 44; CRDoc. 114 at 3. Ground 6 lacks merit. 14 7. 15 Movant argues that counsel was ineffective by failing to (a) present evidence from 16 the forensic expert that someone else could have committed the crime; (b) pursue 17 discovery and disclosures from the prosecution; (c) investigate whether another person 18 authored the fictional stories; (d) object to the stories; (e) call witnesses for the defense; 19 (f) present a defense; (g) investigate information that Movant did not own a computer 20 until May 2008, that the other computers were clean and available for others to use, and 21 that the program used to write the stories was not on his computer; (h) show that the 22 computers could not have been placed on the bottom bunk of the truck at the time of the 23 search; (i) impeach the government’s witnesses; and (j) object to references to Movant’s 24 ex-wife as such at trial, even though they remained married at that time. CVDoc. 34 at 25 31-37; CVDoc. 29 at 45.3 Ground 7: Evidence of Third Party Guilt. 26 3 27 28 The R&R did not reach a number of Movant’s additional arguments regarding trial counsel’s failures because they were raised for the first time in his reply brief. CVDoc. 29 at 45. These include counsel’s failure to present bank statements showing illegal activity in his account, failure to impeach Movant’s ex-wife, failure to impeach Agent Schrable, failure to present evidence about Movant’s brother-in-law, and failure to - 11 - 1 Judge Metcalf found arguments (a), (b), (c), (g), (h), and (j) to be unsupported, and 2 explained why. CVDoc. 29 at 45-47. He found arguments (d), (e), (f) and (i) to be 3 repetitive of earlier grounds already dismissed. Id. at 47-48. Movant objects to these 4 conclusions, sometimes citing evidence and often with only conclusory assertions. 5 CVDoc. 34 at 31-33. The Court again concludes, however, that Movant is second- 6 guessing his trial counsel’s strategic decisions on how best to try this case. Although the 7 Court does not doubt that Movant genuinely believes a better defense could have been 8 mounted, that is not the test for ineffective assistance. Movant must show that his 9 attorney’s performance was unreasonable under prevailing professional standards, and, 10 but for counsel’s unprofessional errors, the results of his trial would have been different. 11 Strickland, 466 U.S. at 687-94. The “highly deferential” approach the Court must take 12 when evaluating counsel’s performance precludes the kind of issue-by-issue criticism 13 Movant levels in Ground 7. Id. at 689. 14 After a de novo review, the Court finds Judge Metcalf’s discussion of the 15 arguments raised in Ground 7 to be correct. CVDoc. 29 at 45-48. The Court will accept 16 the R&R’s findings and deny Movant’s Ground 7 objections. 17 8. 18 Movant asserts that (a) the Court abused its discretion by refusing Movant’s pre- 19 trial request for new counsel, and (b) counsel was ineffective “for not challenging the 20 lesser included offenses, and greater offense.” CVDoc. 34 at 37-39. Ground 8: Abuse of Discretion. 21 Judge Metcalf properly notes that “to the extent that Movant might have intended 22 to assert direct challenges on these decisions of the trial court, the claims would be 23 procedurally defaulted for failing to raise them on direct appeal.” CVDoc. 29 at 49; see 24 25 26 27 28 have the jury instructed on his theory of defense. Id. Movant asserts in his objection that he did raise these claims in his opening brief, but the Court has reviewed that brief and can find no mention of them. Movant does state in his opening brief that “[a] criminal defendant has the right to have the Jury instructed on his/her theory of defense separate and apart from instructions given on the elements of the charged offense.” CVDoc. 2 at 20. But Movant then asserts that trial counsel called no witnesses, presented no evidence, and thus “allow[ed] the Jury to believe there was no defense.” Id. This is not a challenge to trial counsel’s effectiveness on jury instructions as raised in his reply. - 12 - 1 Massaro v. United States, 538 U.S. 500, 504 (2003) (“[C]laims not raised on direct 2 appeal may not be raised on collateral review unless the petitioner shows cause and 3 prejudice.”). Judge Metcalf decided that Movant’s first claim was not procedurally 4 defaulted because Movant was not directly claiming that the Court abused its discretion, 5 but rather that trial counsel was ineffective for failing to object to the Court’s decision as 6 an abuse of discretion. CVDoc. 29 at 49. Here, Movant’s objection makes no such 7 distinction. See CVDoc. 34 at 41 (“Defendant believes he has shown abuse of discretion 8 of the Court, in refusing defendant substitute counsel.”). Accordingly, Ground 8(a) is 9 procedurally defaulted and will be denied. 10 11 Movant’s argument in Ground 8(b) regarding the lesser included offenses is the same argument made in Ground 2 and will be denied for the reasons discussed above. 12 IT IS ORDERED: 13 1. The R&R (CVDoc. 29) is accepted. 14 2. The motion to vacate sentence (CVDoc. 1) is denied. 15 3. The Clerk is directed to terminate this action. 16 Dated this 15th day of April, 2015. 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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