Jamar Dewayne Greer v. United States of America

Filing 9

ORDER DENYING 1 PETITIONERS MOTION FOR RELIEF PURSUANT TO 28 U.S.C. 2255 by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.). (lc) Modified on 8/27/2013.(lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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JAMAR DWAYNE GREER,

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Defendant.
___________________________

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Case No. CV 12-02352 DDP T
[CR 06-00466 DDP]
ORDER DENYING PETITIONER’S MOTION
FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255
[Docket No. 1 ]

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I.

BACKGROUND

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After a jury trial, Petitioner Jamar Dewayne Greer ("Greer" or

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"Petitioner") was convicted of conspiracy to distribute and possess

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with intent to distribute cocaine, in violation of 21 U.S.C. §§

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841(a)(1), (b)(1)(A)(ii)(II), 846.

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No. 341.)

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and the Ninth Circuit affirmed the conviction (the Ninth Circuit

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Court of Appeals Case No. 09-50120 (the "9th CCA") Dkt. No. 51).

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Greer petitioned for rehearing en banc and that petition was

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denied.

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certiorari with the Supreme Court and that petition was denied as

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well.

(06-CR-00466-DDP-5 ("CR") Dkt.

Greer timely appealed his conviction (CR Dkt. No. 401),

(9th CCA Dkt. Nos. 58, 59.)

(9th CCA Dkt. No. 62.)

Greer filed a petition for

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On March 20, 2012, Greer filed the instant motion under 28

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U.S.C. § 2255.

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failed to allege all elements of the crime because it did not

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allege an effect on commerce; (2) 21 U.S.C. §§ 841, 846 were

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unconstitutional as applied him because "his conduct was purely

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local in nature and should be left to the states to punish"; (3)

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the court failed to conduct a sufficient inquiry into the contact

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between jurors and a co-defendant's family member; and (4) his

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attorneys provided ineffective assistance of counsel (I) by failing

Greer claims that (1) the indictment against him

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to request the court to inquire the jurors about contact, (ii) by

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failing to object when the court did not conduct the inquiry, (iii)

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by failing to request a mistrial, and (iv) by failing to raise

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these issues on appeal.

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II.

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(Dkt. No. 1.)

LEGAL STANDARD
A petitioner may move to vacate, set aside, or correct his/her

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sentence "upon the ground that the sentence was imposed in

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violation of the Constitution or laws of the United States, or that

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the court was without jurisdiction to impose such sentence, or that

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the sentence was in excess of the maximum authorized by law, or is

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otherwise subject to collateral attack."

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any of these grounds exist, the court "shall vacate and set the

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judgment aside and shall discharge the prisoner or resentence him

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or grant a new trial or correct the sentence as may appear

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appropriate."

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28 U.S.C. § 2255(a).

If

28 U.S.C. § 2255(b).

Under section 2255, "a district court must grant a hearing to

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determine the validity of a petition brought under that section,

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'[u]nless the motions and the files and records of the case

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conclusively show that the prisoner is entitled to no relief."
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United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994)

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(quoting 28 U.S.C. § 2255) (emphasis and alternation in original).

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"The district court may deny a section 2255 motion without an

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evidentiary hearing only if the movant's allegations, viewed

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against the record, either do not state a claim for relief or are

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so palpably incredible or patently frivolous as to warrant summary

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dismissal." United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th

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Cir. 1998) (quoting United States v. Burrows, 872 F.2d 915, 917

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(9th Cir.1989)).

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III. DISCUSSION

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A.

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Elements of an offense must be charged in the indictment.

Indictment need not allege an effect on commerce.

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Jones v. United States, 526 U.S. 227, 232 (1999).

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Congress enacts a statute under its commerce power, "it is not

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constitutionally obligated to require proof beyond a reasonable

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doubt that each individual act in the class of activities regulated

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had an effect on interstate commerce."

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F.2d 1484, 1492 (10th Cir. 1989).

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assertion, an effect on commerce is not an element for the crime of

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possession with intent to distribute cocaine or conspiracy to

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distribute under 21 U.S.C. §§ 841, 846.

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Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000) ("To sustain

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a conviction for possession with intent to distribute cocaine, the

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government must prove that the defendant (1) knowingly, (2)

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possessed the cocaine, (3) with intent to distribute it."); United

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States v. Hall, 551 F.3d 257, 268 n. 13 (4th Cir. 2009) (holding

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that the elements of a § 846 conspiracy are "(1) an agreement

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between two or more persons to violate federal law relating to

However, when

United States v. Lane, 883

Indeed, contrary to Greer's

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See United States v.

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controlled substances; (2) knowledge of the essential objectives of

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the conspiracy; (3) knowing and voluntary involvement therein; and

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(4) interdependence among the conspirators").

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indictment does not require an allegation of the effect on

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commerce.

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B.

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Therefore, the

21 U.S.C. §§ 841, 846 are constitutional as applied to
Greer.

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Greer also argues that the federal government has no

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jurisdiction to prosecute him for his "purely local conduct."

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(Request for Leave to Amend 28 U.S.C. § 2255 Motion, p. 3; Rebuttal

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to Opposition, p. 2.)

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established that Congress may constitutionally regulate intrastate

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drug activity under 21 U.S.C. §§ 801 et seq (the "Controlled

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Substances Act").

United States v. Visman, 919 F.2d 1390, 1393

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(9th Cir. 1990).

In the instant context, “Congress may regulate

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those wholly intrastate activities which have an effect upon

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interstate commerce.”

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findings that conducts regulated by the Controlled Substances Act

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have "substantial and direct effect upon interstate commerce."

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United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995)

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(citing 21 U.S.C. § 801(3)-(6)).

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interstate nexus is required in order to establish jurisdiction."

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United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir.

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1977).

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C.

This argument is without merit.

Id. at 1392.

It is well

Congress has made explicit

Therefore, "no proof of

The brief contact between the Jurors and a co-defendant's
family member was not prejudicial.

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On August 14, 2008, the government reported to the court that

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a contact occurred between Alternate Juror No. 1 and the mother of
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a co-defendant Deon Lopez ("Mrs. Lopez") after the jury had begun

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its deliberations.

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on August 14, 2008 ("Tr.") at 4:3-19.)

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that it heard Mrs. Lopez say to Alternate Juror No. 1 that "I'm

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sure you'd rather be going home now" while Mrs. Lopez and Alternate

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Juror No. 1 were standing at an elevator outside the courtroom.

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(Tr. at 4:16-17, 6:2-17.)

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Alternate Juror No. 1 be excused.

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17.)

(Reporter's Partial Transcript of Proceedings
The government reported

The government vigorously requested that
(Tr. at 5:18-20, 7:6-20, 8:8-

In response to the government's concern, the court questioned

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the Alternate Juror.

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stated that, although she did not remember exactly what was said,

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Mrs. Lopez "made some comment about [Alternate Juror No. 1] having

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to stay" while she was waiting for the elevator.

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Upon the court's further inquiry, the Alternate Juror revealed that

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Mrs. Lopez had said something along the lines of "can you guess

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whose mothers we are" to her and Jurors Nos. 5 and 6 in the

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lunchroom on an earlier date.

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Juror No. 1 stated that the conversation in the lunchroom was very

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brief and "[n]othing about . . . the case."

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Neither counsel for the defense nor the government made any other

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inquiry concerning the contact between the jurors and Mrs. Lopez.

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(Tr. at 11:17-23.)

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(Tr. at 9:9-12:17.)

Alternate Juror No. 1

(Tr. at 9:9-25.)

(Tr. at 10:4-11:16.)

Alternate

(Tr. at 10:20-11:1.)

The government argued that the contact between Mrs. Lopez and

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jurors negatively affected the government's ability to receive a

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fair trial.

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between a defendant's family members and jurors personalized the

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deliberative process because the jurors would be likelier to

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consider the impact of a conviction not only on the defendant, but

Specifically, the government argued that contact

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on his family members as well.

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19:11-21, 28:17-29:25.)

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court excuse Jurors Nos. 5 and 6 and Alternate Juror No. 1 and

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substitute alternate jurors to whom no communications had been

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made.

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Public Defender's Officer concerning the situation and expressly

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objected to the government's request, stating that the jurors

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should not be replaced, but instead, an admonition should be given

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to the jury.

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(Tr. at 7:6-20, 8:8-17, 13:2-11,

As such, the government requested that the

(Tr. at 13:19-23.)

Greer's counsel conferred with the

(Tr. at 5:23-25, 15:10-22, 17:23-18:7, 25:21-26:4.)

The court acknowledged the impropriety of the contact between

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Alternate Juror No. 1 and Mrs. Lopez at the elevator, but the court

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found the communication to be "spontaneous," "friendly," and

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"unplanned."

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Lopez's contact with the jurors in the lunchroom, although the

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court agreed that personalization with a family member of a

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defendant might make it tougher for a jury to convict (Tr. 19:22-

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20:1, 27:12-15), the court found the conversation in the lunchroom

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was less problematic because Mrs. Lopez was present throughout the

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entire trial and the jurors had already known that she was the

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mother of a defendant.

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court found that an admonition to the jury would be sufficient to

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remedy the issue.

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agreement and stated: "I think that's a good suggestion. . . . It's

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a good resolution."

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(Tr. at 4:20-21, 7:5.)

Furthermore, concerning Mrs.

(Tr. at 7:21-22, 22:9-12.)

(Tr. at 31:6-32:2.)

Therefore, the

Greer's counsel was in

(Tr. at 32:11,15.)

The exact language of the admonition was discussed and debated

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at length until all parties reached an agreement.

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53:19.)

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jury:

(Tr. at 39:8-

Ultimately the court gave the following instruction to the

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It's come to my attention that there may have been some
brief communication between some member of the
defendants' families and some jurors. There should be
[sic] no contact between the jury and members of the
defendants's [sic] families or law enforcement officers.
And I know sometimes it's difficult, but you've got to
try to avoid that.
And I am going to reiterate to you what I told you
previously. You must not be influenced by any personal
likes or dislikes, opinions, prejudices or sympathy.
That means you must decide the case solely on the
evidence before you. You will recall that you took an
oath promising to do so at the beginning of the case.
The punishment provided by law for these crimes is for
the Court to decide and you may not consider punishment
in deciding whether the government has proven its case
against the defendants beyond a reasonable doubt. In
following my instructions, you must follow all of them
and not single out some and ignore others. They're all
equally important.

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(Tr. at 67:18-68:12.)
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Greer now argues that the court should have asked Alternate
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Juror No. 1 whether she relayed to other jurors her private
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conversation with Mrs. Lopez and whether the communications
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affected her ability to be fair and impartial.

(Motion to Vacate

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pp. 7-8.)

Greer also argues that the court should have questioned

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Jurors Nos. 5 and 6 concerning their contact with Mrs. Lopez in the
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lunchroom.

(Id. p. 8.)

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"Generally speaking, '[p]rivate communications, possibly
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prejudicial, between jurors and third persons, or witnesses, or the
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officer in charge, are absolutely forbidden, and invalidate the
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verdict, at least unless their harmlessness is made to appear.'"
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Tong Xiong v. Felker, 681 F.3d 1067, 1076 (9th Cir. 2012) (quoting
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Mattox v. United States, 146 U.S. 140, 142 (1892)).

"However, this

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does not mean that all extraneous information is per se
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prejudicial."

Id.

The Supreme Court has recognized that "it is

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virtually impossible to shield jurors from every contact or
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influence that might theoretically affect their vote." United

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States v. Olano, 507 U.S. 725, 738 (1993) (quoting Smith v.

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Phillips, 455 U.S. 209, 217 (1982)).

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contacts between witnesses and jury members—while passing in the

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hall or crowded together in an elevator—may be inevitable."

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Caliendo v. Warden of California Men's Colony, 365 F.3d 691, 696

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(9th Cir. 2004) (citation omitted).

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communication with a juror was "de minimis," "the defendant must

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show that the communication could have influenced the verdict

Indeed, "certain chance

Thus, when an unauthorized

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before the burden of proof shifts to the prosecution."

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(emphasis added).

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trigger the presumption of prejudice."

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trial court has considerable discretion in determining whether to

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hold an investigative hearing on allegations of jury misconduct or

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bias and in defining its nature and extent."

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Olano, 62 F.3d 1180, 1192 (9th Cir. 1995).

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Id.

"A defendant must offer sufficient evidence to
Id. (citation omitted).

"A

United States v.

A "casual, time-of-the-day greeting" in the men's room between

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a juror and a federal agent for the prosecution was found to be de

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minimis communication.

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04 (10th Cir. 1987).

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room during deliberations without the court's permission to set up

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a video machine to replay a videotape of a witness' interrogation

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was also found to be "innocuous."

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1297, 1299 (9th Cir. 1994).

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encountered a defendant and his wife as the juror left a courthouse

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elevator.

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that she had a brother by the same name as the juror.

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juror acknowledged that, although he had never met her brother,

United States v. Day, 830 F.2d 1099, 1103-

An investigating officer's entering the jury

62 F.3d at 1192.

Lee v. Marshall, 42 F.3d 1296,

For example, in Olano, one juror

The defendant's wife told the juror

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Id.

The

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their mail occasionally was mixed up.

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was brought to the district court's attention, the district court

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re-admonished the jury not to speak with the parties and did not

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excuse the juror or entertain a motion for mistrial sua sponte.

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Id.

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its discretion in not entertaining sua sponte a motion for mistrial

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because, although inappropriate, the juror's conversation with the

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defendant's wife was brief, and it did not relate to the trial.

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Id.

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Id.

When the conversation

The Ninth Circuit held that the district court did not abuse

Indeed, "mere contact or association between a witness . . .

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and a member or members of the jury [does not render] the trial

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unfair in the constitutional sense; more must appear to affect the

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validity of a conviction."

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Cir. 1971).

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379 U.S. 466 (1965).

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murder after a three-day jury trial.

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sheriffs who gave key testimony leading to the defendant's

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conviction were in close and continual association with the jurors

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in and out of the courthouse during the three-day trial: the

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deputies ate with the jurors, freely conversed with them, did

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errands for them, and drove them to their lodgings each night.

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at 467-68.

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relationship between the deputies and the jurors was prejudicial

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because the contact was not a "brief encounter, but [] a continuous

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and intimate association" "which could not but foster the jurors'

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confidence in those who were their official guardians during the

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entire period of the trial.

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much confidence the jury placed in these two witnesses."

Helmick v. Cupp, 437 F.2d 321, 322 (9th

The "more" was found in Turner v. State of Louisiana,
In Turner, the defendant was convicted of
Id. at 466.

Two deputy

Id.

The Supreme Court found that the close and continual

And Turner's fate depended upon how

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Id. at

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473-74.

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fair trial by an impartial jury.

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Thus, the Court held that Turner had been denied right to

Here, the contact between the Jurors and Mrs. Lopez should be

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characterized as merely a chance encounter and nothing more.

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Similar to the conversation between the juror and the defendant's

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wife in Olano, 62 F.3d at 1192, the conversation between the Jurors

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here and Mrs. Lopez was also brief.

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made at lunch and by the elevator had some relationship to the

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case, but they were tangentially related and, as the Court stated,

Unlike Olano, the statements

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innocuous.

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and insufficient to trigger the presumption of prejudice.

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830 F.2d at 1103-04; Caliendo, 365 F.3d at 696.

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offers no explanation as to how Mrs. Lopez's contact with the

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jurors prejudiced him.

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association among the deputies and jurors in Turner that helped

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build up the jurors' confidence in the deputies' testimony, 379

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U.S. at 473-74, Mrs. Lopez's brief encounter with the Jurors did

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not have an effect on the credibility of any witness.

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did not testify at Greer's trial; therefore, her credibility would

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not have an impact on Greer's conviction.

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evidence tending to show that there existed a continuous and

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intimate association between the Jurors and his co-defendant's

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mother that would unfairly prejudice him in receiving a fair trial.

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Greer does not claim that he would have been acquitted if the court

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had conducted a more extensive inquiry into the contact between the

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jurors and Mrs. Lopez.

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that would show how the communication influenced his guilty

Such spontaneous and friendly comments are de minimis
See Day,

In addition, Greer

Unlike the continuous and intimate

Mrs. Lopez

Greer provides no

As Greer has failed to offer any evidence

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verdict, there is no presumption of prejudice.

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F.3d at 696.

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D.

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See Caliendo, 365

Greer's claim of ineffective assistance of counsel must
fail.

Greer asserts that both his trial and appellate counsel should

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have raised the issues he is arguing in the instant motion and

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their failure to do so constituted ineffective assistance of

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counsel.

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To prevail on a claim of ineffective assistance of counsel, a

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convicted defendant must show both (1) that counsel's performance

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was deficient; and (2) that "the deficient performance prejudiced

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the defense."

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The defendant bears the burden of establishing both prongs of the

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claim of ineffective assistance of counsel.

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Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).

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defendant fails to satisfy either prong, the claim of ineffective

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assistance of counsel must fail.

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order to show prejudice,

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reasonable probability that, but for counsel's unprofessional

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errors, the result of the proceeding would have been different."

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Id. at 694; Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998).

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reasonable probability is less than a preponderance of the evidence

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and is a probability sufficient to undermine confidence in the

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outcome.

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Strickland, 466 U.S. at 694.

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Strickland v. Washington, 466 U.S. 668, 687 (1984).

United States v.
If the

Strickland, 466 U.S. at 687.

In

a defendant must show that "there is a

See Kyles v. Whitley, 514 U.S. 419, 434 (1995);

"[A] court need not determine whether counsel's performance

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was deficient before examining the prejudice suffered by the

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defendant as a result of the alleged deficiencies."
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Id. at 697.

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Here, Greer argues that counsel was ineffective for not making

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the arguments the Court rejected above.

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Greer has not shown prejudice, and his ineffective assistance of

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counsel claim fails as a result.

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IV.

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For the reasons discussed,

CONCLUSION
For the foregoing reasons, the 2255 motion is DENIED.

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IT IS SO ORDERED.

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Dated: August 27, 2013
DEAN D. PREGERSON
United States District Judge

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