Vincent Anthony Jones v. United States of America
Filing
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ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. 2255 by Judge Dean D. Pregerson: Petitioners first Motion to Amend Original and Timely Filed 28 U.S.C. 2255 Motion Pursuant to Relief Under Rule 15(c) 8 ) is DENIED; Petitioners second Motion to Ame nd Original and Timely Filed 28 U.S.C. 2255 Motion Pursuant to Relief Under Rule 15(c) 10 is GRANTED; and Petitioners Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. 2255 1 , which incorporates the claims made in Petitioners second motion to amend, is DENIED.(Made JS-6. Case Terminated.) . (lc). Modified on 8/26/2014 (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-Respondent,
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v.
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VINCENT ANTHONY JONES,
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Defendants-Petitioner.
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Case No. CV 13-08906 DDP T
[CR 09-00460 DDP]
ORDER DENYING MOTION FOR RELIEF
UNDER 28 U.S.C. § 2255
[CV Dkt. Nos. 1, 8, 10]
[CR Dkt. Nos. 189, 196, 197]
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Before the court is Petitioner Vincent Anthony Jones
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(“Petitioner”)’s Motion to Vacate, Set Aside, or Correct Sentence
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Pursuant to 28 U.S.C. § 2255. (Dkt. No. 1.) Also before the court
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are two Motions to Amend Original and Timely Filed 28 U.S.C. § 2255
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Motion Pursuant to Relief Under Rule 15(c). (Dkt. Nos. 8, 10.)
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Having reviewed the materials submitted by the parties and
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considered the arguments advanced therein, the court adopts the
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following order.
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I.
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Background
On May 12, 2009, Petitioner was indicted for four counts of
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bank robbery and one count of attempted bank robbery, all in
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violation of 18 U.S.C. § 2113(a).
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A.
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Guilty Plea
Petitioner initially pled not guilty to all counts of the
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indictment. (Dkt. No. 13.) However, on May 6, 2010, after several
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days of trial, Petitioner changed his plea to guilty on count five,
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bank robbery in a violation of 18 U.S.C. § 2113(a). (CR Dkt. No.
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147.) In entering a guilty plea, Petitioner agreed to the
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government’s Offer of Proof, which stated as follows:
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On May 1st, 2009 at approximately 2:33 p.m. defendant entered
a Farmers and Merchant’s Bank located at 3140 East Anaheim
Street, in Long Beach, California. Defendant handed a teller
MAG note which read “I will shoot you in the head. Give me
your money, top and bottom drawer,” or words to that effect.
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By providing the note to the teller, defendant intended to and
did intimidate the teller into giving defendant Farmers’ and
Merchant’s money.
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The teller gave defendant $1,496 of Farmers’ and Merchant’s
money. Defendant took the money and left the bank.
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(Government’s Opposition to Motion Ex. 3 at 14.) Petitioner was
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subsequently committed on March 3, 2011 to the custody Bureau of
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Prisons for a term of 84 months, with 3 years of supervised
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release. (See CR Dkt. No. 163.)
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B.
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Evidence Proffered by the Government
Prior to trial, the Long Beach Police Department detective
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assigned to the case, Detective Donald Collier, submitted a sworn
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declaration describing the following alleged facts to which he was
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prepared to testify at trial and other evidence developed by the
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police. (Gov. Ex. 1 [Declaration of Donald Collier].)
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Prior to Defendant’s arrest on May 1, 2009, Detective Collier
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was aware of and was investigating three other bank robberies and
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one attempted robbery between April 10, 2009 and April 24, 2009
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which he suspected were committed by the same person. (Id. at 1-2.)
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The perpetrator in each robbery was consistently described by bank
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employees as a black male, thirty five to forty years old, five
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feet eleven inches to six feet tall, weighing approximately two
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hundred and eighty five pounds, with long black curly hair. (Id. at
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2 and Ex. 2 at 1.) Surveillance images of the three robberies and
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attempted robberies showed the perpetrator wearing distinctive
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clothing, including a “Kangol” type hat, sunglasses, and a white
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tee-shirt. (Id.)
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In response to these robberies, the Federal Bureau of
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Investigations (FBI) circulated a Criminal Information Bulletin
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(“Bulletin”). (Id.; Gov. Ex. 2.) The Bulletin presented
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surveillance images of the robberies, listed the location and times
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of the robberies, and noted that the perpetrator had a modus
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operandi of entering banks on late Friday afternoons and passing a
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demand note to the teller indicating he has a weapon but does not
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want to shoot. (Collier Decl. at 2; Gov. Ex. 2.)
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On May 1, 2009, Detective Collier was informed by police
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dispatch that a robbery had been committed at approximately 2:30 pm
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at Farmers & Merchants (“F&M1") Bank located at 3140 E. Anaheim
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Street in Long Beach, California. (Id. at 3.) Detective Collier
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promptly went to the F&M1 location to investigate. A teller
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reported that he had noticed that a person matching the Bulletin
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had entered the bank. (Id. at 4.) The perpetrator then handed the
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teller a note saying he was going to shoot the teller in the head
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unless the teller complied with his demand to hand over money.
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(Id.) In response, the teller was able to give the perpetrator ten
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“bait” money bills with serial numbers specifically marked and used
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by banks in robberies, among approximately $1,566 in total. (Id.) .
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(Id.) Detective Collier confirmed that the victim teller’s
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description of the robber matched the description of the bank
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robber in the other robberies under investigation. (Id.) He also
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observed still images of the person who had robbed the bank, which
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showed that the perpetrator was wearing a white tee shirt, dark
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jeans, and dark “Kangol” type hat. (Id.) This attire matched that
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worn by the perpetrator in the previous robberies. (Id.)
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Approximately 20 minutes later, at about 3:30 pm, Detective
Collier was informed by police dispatch that a person matching the
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description in the Bulletin was inside a second Farmers & Merchants
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Bank (“F&M2"), located at 4545 California Avenue in Long Beach,
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waiting in line. (Id. at 5.) Shortly thereafter, dispatch reported
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that the perpetrator had left the bank and was walking down an
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alley. (Id.) When Detective Collier arrived at F&M2, a suspect had
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been arrested. (Id. at 6.)
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The arresting officer, Long Beach Police Department officer
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Claudia Lopez, informed Detective Collier that, after F&M2 bank
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employees recognized the person from the Bulletin, the person
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started fumbling with a plastic checkbook, put a piece of paper in
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his mouth, acted like he forgot something, and then left the
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branch. (Id. at 5.) Bank employees also told Officer Lopez that the
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person had headed towards the alley behind the bank. (Id.) As
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Officer Lopez started driving down the alley, she observed a black
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male, wearing a black tee shirt and blue jeans. (Id.; Mot. Ex. A
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[Police Report by Officer Claudia A. Lopez] at 1.) She noticed that
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the suspect was holding a white tee shirt, purple hat, and
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sunglasses. (Id.) Officer Lopez recognized the suspect from the
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Bulletin. (Collier Decl. at 5; Lopez Report at 1.) Based on these
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observations, she arrested the suspect, who is Petitioner in this
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case. (Id.; Collier Decl. at 5; Lopez Report at 1.)
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Upon looking at the suspect, Detective Collier recognized the
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man as the bank robber that he and others had been investigating in
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the prior three bank robberies and one attempted robbery and the
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person who robbed the F&M1 bank earlier on the same day. (Id. at
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6.) This recognition was based on his study of the surveillance
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images of the prior bank robberies and attempted robbery and the
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description of the perpetrator given by victim tellers. (Id.)
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Detective Collier was also shown the white tee shirt, dark hat, and
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sunglasses defendant was carrying at the time of his arrest, which
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appeared consistent with the items worn by the bank robber in the
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previous robberies, including the robbery of F&M1 earlier that day,
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as reflected in still images of that robbery. (Id.) Detective
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Collier was also shown a blue plastic checkbook and bank robbery
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note found inside the checkbook confiscated from the suspect, which
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stated “I will shoot you and customers. This is a robbery. Open
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your second drawer first and hand me the money then open up your
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first drawer and hand me the money.” (Id. at 6-7; Lopez Report at
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1.)
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Detective Collier was also shown a set of keys recovered from
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Petitioner at the time of his arrest, which included a keyless
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remote entry access device. (Id.) He instructed an officer to check
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the immediate area and try to locate the car associated with the
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key. (Id.) Detective Collier sought to locate and search the
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vehicle because he believed it contained evidence of the robbery
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that day (such as money stolen from F&M1, as no money was found on
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Defendant’s person) and because he was concerned that there could
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be a loaded gun in the vehicle, posing a safety hazard. (Id. at 8.)
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An officer located a vehicle which made a sound in response to the
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officer pressing the keyless entry device. (Id. at 9-10.) Prior to
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searching the vehicle, officers were able to establish, by running
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the car’s license plate through the Department of Motor Vehicles
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(“DMV”) database, that the vehicle was registered to Petitioner,
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Vincent Anthony Jones, residing at 1135 M.L. King, Jr. Ave, #16, in
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Long Beach, California. (Id. at 10.) The name and address were
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identical to the name and address that appeared on Petitioner’s
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California Driver’s License. (Id.)
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Detective Collier ordered the vehicle impounded. (Id.) Prior
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to having the car towed to a storage facility, Detective Collier
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and FBI SA Gravis conducted an inventory of the contents of the
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vehicle. (Id. at 11.) A large bundle of U.S. currency was found
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inside the glove compartment of the vehicle. (Id.) Detective
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Collier and SA Gravis compared the money found in the vehicle to
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the serial numbers of the ten “bait” bills that were included in
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money stolen from F&M1. (Id.) They found that the money from the
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glove compartment included the “bait” bills. (Id.) This money taken
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from the vehicle, which totaled $1,496, was logged as evidence.
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(Id.)
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C.
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Pre and Post-Trial Motions
Prior to trial, Petitioner’s Deputy Federal Public Defenders
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Callie G. Steele and Koren L. Bell (“trial counsel”) filed six
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motions on his behalf. These included motions to suppress (1)
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evidence seized from Petitioner’s apartment (CR Dkt. No. 44); (2)
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evidence seized from Petitioner’s vehicle (CR Dkt. No. 45); (3)
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evidence seized from the apartment of Petitioner’s family member
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(CR Dkt. No. 46); (4) a witness identifications based on a
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photographic spread and show-up procedure (CR Dkt. No. 48); and (5)
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evidence seized from Petitioner’s vehicle pursuant to a warrant, or
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in the alternative, for a Franks hearing (CR Dkt. No. 74).
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Petitioner’s counsel also filed on his behalf a motion to dismiss
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the case for outrageous government conduct. (CR Dkt. No. 126.)
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This court granted the first and third pre-trial motions to
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suppress. (Dkt. Nos. 136, 108.) The court denied all other motions.
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(CR Dkt. Nos. 98, 107, 109, 135.)
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Petitioner’s guilty plea was made without a plea agreement.
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However, as part of Petitioner’s plea, the parties and court
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consented to Petitioner’s reservation of his right to appeal this
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court’s denial of his motions to suppress evidence seized from his
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vehicle and evidence seized pursuant to a warrant. (See CR Dkt.
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Nos. 45, 74, 145; Opp. at 9.) Subsequently, Petitioner’s appellate
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counsel, Joseph F. Walsh (“appellate counsel”), appealed both of
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these preserved issues. (See Gov. Ex. 4 at 5.) On June 1, 2012, in
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an unpublished decision, the Ninth Circuit affirmed this court’s
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rulings. See U.S. v. Jones, 473 Fed.Appx. 761 (9th Cir. 2012).
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On December 3, 2013, Petitioner filed the instant Section 2255
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motion. (CV Dkt. No. 1.) On June 6, 2014, Petitioner filed a motion
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to amend his Section 2255 motion. (CV Dkt. No. 8.) As discussed
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below, Petitioner contends that his conviction should be set aside
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due to ineffective assistance by his trial and appellate counsel.
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II.
Legal Standard
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A.
Section 2255
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Section 2255 allows federal prisoners to file motions to
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vacate, set aside, or correct a sentence on the ground that “the
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sentence was imposed in violation of the Constitution or laws of
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the United States, or that the court was without jurisdiction to
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impose such sentence, or that the sentence was in excess of the
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maximum authorized by law, or is otherwise subject to collateral
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attack[.]” 28 U.S.C. § 2255. The petitioner in a Section 2255
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motion bears the burden of establishing any claim asserted in the
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motion. To warrant relief because of constitutional error, the
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petitioner must show that the error was one of constitutional
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magnitude which had a substantial and injurious effect or influence
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on the proceedings. See Hill v. United States, 368 U.S. 424, 428
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(1962).
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B.
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Ineffective Assistance of Counsel
Under the Sixth Amendment, all criminal defendants enjoy the
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right to effective assistance of counsel. Strickland v. Washington,
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466 U.S. 668, 686-700 (1984). In Strickland, the Supreme Court held
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that in order to show ineffective assistance of counsel, a
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defendant must demonstrate (1) that counsel’s performance was
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deficient and fell below an objective standard of reasonableness
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and (2) the defendant was prejudiced as a result and deprived of a
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fair trial. Id. at 687. This two-part standard applies to
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ineffective-assistance claims arising out of the plea process.
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Hill v. Lockhart, 474 U.S. 52, 57 (1985); Nunes v. Mueller, 350
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F.3d 1045, 1052 (9th Cir. 2003). In order to establish the first
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prong, “[i]f a prisoner pleads guilty on the advice of counsel, he
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must demonstrate that the advice was not ‘within the range of
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competence demanded of attorneys in criminal cases.’” Tollett v.
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Henderson, 411 U.S. 258, 266 (1973) (quoting McMann v. Richardson,
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397 U.S. 759, 771 (1970)). In order to establish the second prong
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in a plea agreement context, “the defendant must show that there is
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a reasonable probability that, but for counsel’s errors, he would
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not have pleaded guilty and would have insisted on going to trial.”
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Hill, 474 U.S. at 59.
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When a petitioner’s Section 2255 motion alleges ineffective
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assistance of counsel, an evidentiary hearing is necessary only if,
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assuming the petitioner’s factual allegations are true, the
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ineffective assistance of counsel claim could prevail. See U.S. v.
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Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994).
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III. Discussion
Petitioner claims that his trial and appellate counsel were
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ineffective for multiple reasons. Petitioner’s claim is based upon
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(i) trial and appellate counsel’s alleged failure to argue that
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there was an illegal search of his person in violation of the
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Fourth Amendment; (ii) trial counsel’s alleged failure to challenge
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the constitutionality of the “field show-up” and witness
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identification; (iii) trial counsel’s alleged failure to challenge
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the constitutionality of evidence seized from Petitioner’s vehicle;
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(iv) appellate counsel’s alleged failure to challenge the
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constitutionality of the evidence seized from Petitioner’s vehicle;
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(v) trial and appellate counsel’s alleged failure to raise the
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constitutionality of statements and evidence seized at the time of
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arrest; (vi) alleged failure by trial counsel to subpoena
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restaurant surveillance footage and request exculpatory evidence
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from the government; (vii) alleged failure by trial counsel to
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challenge the constitutionality of Petitioner’s medical record.
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Additionally, in his motion to amend, Petitioner contends that his
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trial counsel failed to pursue DNA testing to prove his innocence.
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At the change of plea hearing, the court and the government
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reviewed with Petitioner various consequences of entering a guilty
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plea and asked Petitioner whether he understood. (Gov. Ex. 3
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[Transcript of May 6, 2010 Change Of Plea Hearing] at 6-13.)
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Petitioner repeatedly affirmed that he understood. (Id.) Petitioner
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stated that he agreed with the government’s offer of proof, as
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quoted above. (Id. at 14.) In addition, Petitioner told the court
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that prior to entering his plea he had enough time to consider his
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decision and that he discussed his options and his case fully with
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his attorney. (Id. at 17.) He stated that he was satisfied with the
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representation that his attorney provided to him. (Id. at 17.)
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Statements made in open court at the time of a plea carry a “strong
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presumption” of truth and are entitled to “great weight.”
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Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Chizen v. Hunter,
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809 F.2d 560, 562 (9th Cir. 1986). Because Petitioner made these
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assertions in open court, Petitioner must make a strong showing to
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prove his claims.
The court considers each asserted ground for relief in turn.
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A.
Search of Person
Petitioner asserts that his trial and appellate counsel were
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ineffective because they failed to challenge the constitutionality
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of the search of his person. (Mot. at 11.) He asserts that the
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search violated his Fourth Amendment rights because the arresting
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officers exceeded the scope of a “Terry pat-down” when searching
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inside Petitioner’s pockets. See Terry v. Ohio, 392 U.S. 1 (1968).
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The items seized from Petitioner’s pockets included a checkbook and
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a bank robbery note inside the checkbook. (Mot. at 16 & Ex. M.)
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Petitioner asserts that it was this impermissible Terry pat-down
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that lead to the probable cause supporting his arrest. (Mot. at
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19.)
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The record does not support Petitioner’s contentions.
Defendant cannot establish that his counsel was ineffective in
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failing to challenge the search because it appears such a
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contention would be meritless. (See Boag v. Raines, 796 F.2d 1341,
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1344, 1344 (“Failure to raise a meritless argument does not
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constitute ineffective assistance.”) Evidence provided by both
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Petitioner and the government supports the conclusion that when the
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police officers searched Petitioner’s pockets, they already had
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probable cause and were thus conducting a search incident to a
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lawful arrest, not a Terry pat-down.
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“There is probable cause for a warrantless arrest and a search
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incident to that arrest if, under the totality of the facts and
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circumstances known to the arresting officer, a prudent person
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would have concluded that there was a fair probability that the
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suspect had committed a crime.” United States v. Gonzales, 749 F.2d
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1329, 1337 (9th Cir. 1984).
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Here, here the arresting officer, Claudia Lopez, described the
arrest in her report as follows:
We drove down the north/south alley and as we approached the
south end of the t-alley [sic] we observed a male black
walking eastbound directly at the rear of 901 San Antonio. We
immediately recognized the subject as the wanted suspect on
our Departmental issued Criminal Information Bulletin. . . .
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Det. Rosales handcuffed the suspect and the suspect was taken
into custody. I conducted a pat-down search of the suspect and
found a checkbook plastic cover with a balance book and a bank
robbery note...
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(Mot. Ex. A.) As discussed above, the Bulletin referred to in the
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statement presented four pictures of an individual during four
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separate bank robberies or attempted robberies. (See Collier Decl.
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at 5-6; Gov. Ex. 2.) Petitioner points to no evidence putting the
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arresting officer’s account of recognizing Petitioner from the
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Bulletin in dispute.
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The officers’ immediate recognition of Petitioner is
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sufficient to constitute probable cause. See, e.g., Gravenmier v.
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United States, 380 F.2d 30, 31 (9th Cir. 1967) (“When the
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investigating officer arrived in response to the manager's call, he
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thought that appellant was a ‘dead ringer’ for the police composite
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picture of the March robber. On the basis of the above information
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the arresting officer had probable cause to arrest appellant as he
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walked quickly away from the association.”)
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Because the officers had probable cause to arrest Petitioner,
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the search of Petitioner’s person did not violate the Fourth
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Amendment. See Chimel v. California, 395 U.S. 752, 762-63
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(1969)(“When an arrest is made, it is reasonable for the arresting
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officer to search the person arrested in order to remove any
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weapons that the latter might seek to use in order to resist arrest
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or effect his escape.”) The failure of counsel to contend that the
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officers lacked probable cause in conducting the search of
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Petitioner’s person thus cannot constitute ineffective assistance.
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B.
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Field Show-up Procedure
Petitioner asserts that his trial counsel provided ineffective
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assistance by failing to challenge the constitutionality of the
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witness identification conducted through the “field show-up.” (Mot.
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22-23.) This argument fails because the trial counsel did, in fact,
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move to exclude the witness identifications based on the field
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show-up. (CR Dkt. 48; Opp at 14.)
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C.
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Evidence Seized from Vehicle (Trial Counsel)
Petitioner contends that his trial counsel provided
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ineffective assistance by failing to challenge the
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constitutionality of the evidence seized from Petitioner’s vehicle.
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(Mot. at 33.) This argument likewise fails because Petitioner’s
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trial counsel did move to exclude the evidence at issue. Indeed,
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his trial counsel brought three separate pre-trial motions on the
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subject: a Motion to Suppress Evidence Found in Vehicle on May 1,
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2009 (CR Dkt. 45); a Motion to Suppress Evidence Seized in Vehicle
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Pursuant to a Warrant or, in the Alternative, For a Franks Hearing
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(CR Dkt. 74); and a Motion to Reconsider Suppression of Evidence
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Seized Pursuant to Warrant or, in the alternative, for a Franks
20
Hearing. (DR Dkt. 125).
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D.
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Evidence Seized from Vehicle (Appellate Counsel)
Petitioner contends that his appellate counsel provided
23
ineffective assistance by failing to challenge the
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constitutionality of the evidence seized from his vehicle. (Mot. at
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40.) This contention, too, lacks merit, as his appellate counsel
26
did raise the issue on behalf of Petitioner in his appeal before
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the Ninth Circuit.1
2
761 (9th Cir. 2012).
3
E.
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(Gov. Ex. 4 at 5; U.S. v. Jones, 473 Fed.Appx.
Statements and Evidence Seized at Time of Arrest
Petitioner contends that both his trial and appellate counsel
5
provided ineffective assistance by failing to challenge the
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constitutionality of statements and evidence seized at the time of
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his arrest. (Mot. at 48-49.) In particular, Petitioner asserts that
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his counsel unreasonably failed to challenge the admission of
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statements made prior to his being Mirandized. (Id.) The motion
10
does not specify the statements Petitioner believes his counsel
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should have moved to excluded. The only statements in the record
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allegedly made by Petitioner before he was Mirandized were: “What’s
13
going on? I was having some Chinese food at the restaurant.” (Mot.
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Ex. A.) Petitioner allegedly made these statements while he was
15
being placed in the back seat of the patrol car after being
16
arrested. (Id.) His counsels’ failure to move to exclude the
17
statements cannot constitute ineffective assistance, as there would
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be no reason for Defendant’s counsel to seek to exclude the
19
statements because they were exculpatory, not inculpatory. In fact,
20
the government sought to exclude the statements as self serving
21
exculpatory evidence and inadmissable hearsay. (See Motion in
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Limine re Admissibility of Evidence. (CR Dkt. No. 17.) Petitioner
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Appellate counsel raised two issues on appeal: (1) “Whether
the court erred in denying appellant’s motion to suppress the money
seized from his car on May 1, 2009, where the motion was made on
the grounds that the police lacked probable cause to conduct a
warrantless search?” and (2) “Whether the court erred in denying
appellant’s motion to suppress the cell phone and handwritten
papers seized from his car on May 15, 2009, where the police made
material omissions and false representations in the search warrant
affidavit?” (Gov. Ex. 4 at 5.)
14
1
opposed the motion and the court allowed the statements as
2
admissible to show Petitioner’s state of mind at the time of his
3
arrest. (Dkt. Nos. 76 at 1-3; 98.)
4
F.
5
Restaurant Surveillance Tape and Evidentiary Hearing
Petitioner contends that his trial counsel provided
6
ineffective assistance by (1) failing to subpoena video
7
surveillance at a Chinese food restaurant where, as noted above,
8
Petitioner claimed he was eating prior to his arrest and (2)
9
failing to file a motion requesting exculpatory evidence from the
10
government for the surveillance tape. (Mot. at 58, 61.) The
11
arguments are unsuccessful.
12
Both the government and Petitioner’s counsel investigated the
13
alleged alibi. According to the arrest report, on the day of the
14
arrest an officer visited the restaurant and reviewed the
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surveillance video, concluding that “the suspect was not observed
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in the restaurant surveillance video.” (Mot. Ex. A.) The government
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produced this report to Petitioner. Subsequently, an investigator
18
for Petitioner’s counsel visited the restaurant and spoke with the
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manager, who confirmed that the police had told him that the man in
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the film was not the man they were looking for. (Id. Ex. C.)
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Specifically, the manager stated that the man in the film had no
22
hair and the police told him that the man they were looking for had
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long hair (like Petitioner). (Id.) The manager stated that he did
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not believe the pictures would still be on the camera’s memory
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chip. (Id.) In February 2010, according to a report produced to
26
Petitioner, an FBI investigator interviewed the manager, who
27
reported that “he did not recall seeing a black male on the video
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recording” and did not “specifically remember a black male coming
15
1
into the restaurant on the same day that the LBPD officers had come
2
in.” (Mot. Ex. D.) He stated that he no longer had the video
3
recording. (Id.)
4
As to the first prong of the ineffective assistance of counsel
5
inquiry, the court is not persuaded that counsel’s performance in
6
failing to subpoena the video “fell below an objective standard of
7
reasonableness,” Strickland, 466 U.S. at 466 U.S. 688, rendering
8
counsel’s advise to Petitioner with respect to his plea
9
ineffective. It appears from the record before the court that a
10
subpoena of the video may have been futile as the recording no
11
longer existed. Petitioner’s trial counsel may also have found the
12
police’s representations regarding the video credible and thus
13
reasonably made a strategic decision to focus resources on other
14
aspects of the case.
15
Even assuming that his counsel erred in not subpoenaing the
16
video, the court is not persuaded that there is a reasonable
17
probability that, but for counsel’s alleged error, Petitioner would
18
not have pleaded guilty and would have insisted on concluding his
19
trial. See Hill, 474 U.S. at 59. The admissible evidence proffered
20
against Petitioner in this case with respect to the robbery of the
21
F&M1 bank was overwhelming. As described above, this evidence
22
included bank surveillance images, a bank robbery note allegedly
23
found on Petitioner’s person, and marked “bait” bills from the
24
robbery allegedly found in the glove compartment of Petitioner’s
25
vehicle. (See Collier Decl. at 3, 11; Lopez Report at 1; Mot. Ex.
26
A.) In view of this evidence, there is not a reasonable probability
27
that, had the video been subpoenaed, it would have shown Petitioner
28
16
1
was at the restaurant at the time the F&M1 was robbed, and that, as
2
a result, Petitioner would have entered a different plea.
3
With respect to Petitioner’s assertion that his counsel erred
4
by failing to file a motion asserting a Brady violation with
5
respect to the surveillance tape, this contention likewise fails.
6
The government’s obligation is to preserve and produce any
7
potentially exculpatory evidence it has in its possession. See
8
Brady v. Maryland, 373 U.S. 83, 87 (1963); Strickler v. Greene, 527
9
U.S. 263, 280 (1999). Here, however, there is no reason to conclude
10
that the video was potentially exculpatory. The government timely
11
provided to Defendant the evidence it had in its possession related
12
to the Chinese restaurant, including a report stating that its
13
review of the video reflected that the video was not exculpatory.
14
Plaintiff has pointed to no reason to conclude that the video
15
contained anything other than what the government described.
16
G.
Medical Records
17
Petitioner asserts that his trial counsel provided ineffective
18
assistance by granting prosecutors permission to review his medical
19
records without his consent and then allowing prosecutors to use
20
such records against Defendant in their prosecution of him. (Mot.
21
at 65.) This claim fails. Contrary to Petitioner’s understanding,
22
there exists no physician-patient evidentiary privilege in criminal
23
proceedings under federal law under which Petitioner’s counsel
24
could have sought to exclude records obtained from his
25
physician(s). See Galarza v. United States, 179 F.R.D. 291, 294
26
(S.D. Cal. 1998) (“Under federal common law there is no physician-
27
patient privilege.”; In re Grand Jury Proceedings, 801 F.2d 1164,
28
1169 (9th Cir. 1986).
17
1
Even were the records at issue subject to an evidentiary
2
privilege, Petitioner has not identified any manner in which his
3
medical records were relied upon by the government in the case it
4
planned and partly put on against him prior to his guilty plea. The
5
court’s review of the record does not reflect any use or reference
6
to medical records by the government. As a result, Petitioner has
7
not shown that there is a reasonable probability that, but for his
8
counsel’s alleged error in failing to move to exclude his medical
9
records, Petitioner would not have pleaded guilty. See Hill, 474
10
U.S. at 59. Petitioner therefore has no ineffective assistance
11
claim in relation to medical records.
12
F.
13
Motion to Amend re DNA Testing
On June 6, 2014, Petitioner filed a motion to amend his
14
original Section 2255 motion pursuant to Rule 15(c), which the
15
government opposes. (Dkt. Nos. 8, 9.) The motion seeks to add a
16
claim that Petitioner’s trial counsel provided ineffective
17
assistance by failing to subpoena the results of a DNA test he
18
believes was performed by the government or to otherwise pursue the
19
use of DNA testing to support his case. (First Motion to Amend at
20
3, 6.) Petitioner asserts that he voluntarily gave the government
21
his DNA for testing at the time of his arrest, and then
22
subsequently requested, on various occasions leading up to and
23
during trial, that his counsel subpoena the results of any testing
24
performed by the government, but that his counsel failed to do so.
25
(Id. at 3-4.) He asserts that a comparison between his DNA and that
26
found on the suspected robbers’ disguise (which was allegedly found
27
on his person at the time of his arrest) would show his innocence.
28
(See id. at 6; Collier Decl. at 4-5.) Petitioner also asserts that
18
1
his trial counsel never filed a motion asserting that Det. Collier
2
and Officer Lopez committed perjury when they testified under oath
3
that no DNA tests were ever conducted or existed. (Mot. Am. 1 at
4
4.)
5
As an initial matter, Petitioner’s motion to amend is time-
6
barred. As an original motion, Petitioner’s amendment would be
7
time-barred because it was not filed within one year from the date
8
on which his conviction became final, December 10, 2012, the date
9
that the Supreme Court denied his petition for writ of certiorari.
10
See 28 U.S.C. 2255; Griffith v. Kentucky, 479 U.S. 314, 107 (1987);
11
Opposition Ex. A. Although Petitioner’s initial motion, filed
12
December 3, 2013, was timely, the motion to amend, filed June 6,
13
2014, was filed outside of the one-year period. (Dkt Nos. 1, 8.)
14
Under Rule 15(c)(2), an amendment to a pleading may relate
15
back to the date of the original filing and therefore be deemed
16
timely “where the claim or defense asserted in the amended pleading
17
arose out of the conduct, transaction, or occurrence set forth or
18
attempted to be set forth in the original pleading.” Fed. R. Civ.
19
P. 15(c)(2). The Supreme Court has held that Rule 15(c)(2) applies
20
to post-conviction motions, including Section 2255 motions. See
21
Mayle v. Felix, 545 U.S. 644, 657-58 (2005). To relate back to the
22
original Section 2255, however, an amended Section 2255 claim must
23
concern one of the “separate categories of facts supporting the
24
grounds for relief” asserted in the original motion, each of which
25
“delineate an ‘occurrence.’” Id. at 661. On this basis, the court
26
held in Felix that an amended petition challenging the defendant’s
27
statements at a pretrial interrogation did not relate back to the
28
19
1
original petition which addressed the admission of videotaped
2
testimony of a witness. Id. at 657-661.
3
Here, Petitioner’s proposed amended Section 2255 petition does
4
not relate to the original petition because, while the original
5
petition discussed numerous other issues as reviewed above, it did
6
not did not raise or discuss DNA testing. The amended petition
7
therefore does not relate to the same “conduct, transaction, or
8
occurrence” under Rule 15(c)(2) and is thus time-barred.
9
Even were the amended petition not time-barred, the court
10
would deny the petition on the merits. Petitioner’s argument that
11
DNA tests would have established his innocence is, under the facts
12
of this case, too speculative to support an ineffective assistance
13
claim. There is, as an initial matter, no basis other than
14
speculation to conclude that any DNA test was ever performed in
15
this case. Moreover, in the face of the powerful evidence proffered
16
against him, as discussed above, Petitioner has not shown that
17
there is any reasonable probability that, were a DNA test performed
18
comparing his DNA with DNA found on the robber’s disguise (which,
19
as noted, was allegedly found on his person at the time of his
20
arrest) would have (1) found a mismatch and (2) been sufficient to
21
cause his counsel to recommend against accepting a guilty plea. See
22
Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir.2000) (no
23
Strickland prejudice when no showing that proper investigation
24
would have uncovered favorable evidence); Paul v. Gibson, 2014 WL
25
2547594 (C.D. Cal. Apr. 22, 2014) report and recommendation
26
adopted, , 2014 WL 2547596 (C.D. Cal. June 5, 2014) (“Mere
27
speculation about the existence of favorable DNA evidence is
28
insufficient to show ineffective assistance.”)
20
1
G. Motion to Amend to Add Claim that Counsel Failed to Present
2
Proper Case Law
3
On July 11, 2014, Petitioner filed a second motion to amend
4
his original habeas petition. (Dkt. No. 10.) The gravamen of the
5
motion is that Petitioner’s trial and appellate counsel provided
6
ineffective assistance by failing to challenge the court’s alleged
7
misapprehension of the holding of a case, California v. Carney, 471
8
U.S. 386 (1985), that was discussed at a suppression hearing
9
concerning evidence seized from Petitioner’s vehicle on March 23,
10
2011. Unlike the previous motion to amend, this motion relates back
11
to Petitioner’s original Section 2255 motion, which raised an
12
ineffective assistance claim concerning suppression of the same
13
evidence. However, the claim is plainly meritless.
14
In Carney, the Supreme Court explained the longstanding rule
15
that no warrant is necessary in certain circumstances for the
16
search of an automobile where probable cause exists and found that
17
exception to the warrant requirement applicable in the case of a
18
mobile home. 471 U.S. at 395. Petitioner contends that the court
19
misconstrued Carney as standing for the proposition that no
20
probable cause is necessary when conducting a search of a vehicle.
21
(See Second Motion to Amend at 6-9.) He contends that his trial
22
counsel provided ineffective assistance by failing to challenge
23
this incorrect interpretation of Carney during the suppression
24
hearing. (See id. at 2.)
25
Petitioner mischaraterizes the record. The transcript of the
26
March 23, 2011 suppression hearing demonstrates that the court and
27
counsel for both Petitioner and the government understood that
28
Carney did not obviate the need for a showing of probable cause.
21
1
(See CR. Dkt. No. 168 at 26-31.) Indeed, the brief mention of
2
Carney was made in the context of a discussion concerning the
3
existence of probable cause to search Petitioner’s vehicle, which
4
was followed by the testimony of Det. Collier concerning the basis
5
for the government’s contention that the vehicle’s search was
6
supported by probable cause. (Id. at 26-55.) Following Det.
7
Collier’s testimony, the court issued a ruling denying the motion
8
to suppress on the grounds that the search of the vehicle was
9
justified by probable cause in the circumstances. (Id. at 67:19-
10
68:5.) There is no evidence that the court or the parties
11
misunderstood or misapplied Carney. Even if Carney were misstated
12
by any party or the court to suggest no showing of probable cause
13
was necessary to search the vehicle, Petitioner suffered no
14
prejudice because the court declined to suppress the evidence
15
seized during the search on the basis of its finding that the
16
search was supported by probable cause.
17
Petitioner additionally argues that his appellate counsel
18
“‘failed’” to file and argue the ‘proper argument’” to suppress the
19
evidence seized from his vehicle. (Second Motion to Amend at 20.)
20
Although nominally framed as an ineffective assistance claim,
21
Petitioner essentially makes a merits argument that the search
22
violated the Fourth Amendment because the officers did not have
23
probable cause to search his vehicle. Fourth Amendment claims are
24
not cognizable under federal habeas review, unless no prior
25
opportunity was provided to litigate those claims. Stone v. Powell,
26
428 U.S. 465, 481-82 (1976). As discussed above, Petitioner’s trial
27
counsel filed a suppression motion and Petitioner’s appellate
28
counsel filed an appeal on this issue, which the trial court and
22
1
the Ninth Circuit, respectively, denied. In any case, having
2
reviewed the appeal, the court does not find any notable deficiency
3
in the quality of Petitioner’s appellate counsel’s advocacy and
4
certainly none that would support an ineffective assistance claim.
5
See, e.g. Jones v. Barnes, 463 U.S. 745, 754 (1983) (“For judges to
6
second-guess reasonable professional judgments and impose on
7
appointed counsel a duty to raise every ‘colorable’ claim suggested
8
by a client would disserve the very goal of vigorous and effective
9
advocacy underlying [Anders v. California, 386 U.S. 738 (1967)].
10
Nothing in the Constitution or our interpretation of that document
11
requires such a standard.”) (quotations in original).
12
Accordingly, the second motion to amend will be granted but
13
the additional claims asserted in the motion, which is incorporated
14
into the original habeas petition, lack merit and will be denied.
15
16
17
IV.
Conclusion
For the reasons stated above, Petitioner’s first Motion to
18
Amend Original and Timely Filed 28 U.S.C. § 2255 Motion Pursuant to
19
Relief Under Rule 15(c) (Dkt. No. 8) is DENIED; Petitioner’s second
20
Motion to Amend Original and Timely Filed 28 U.S.C. § 2255 Motion
21
Pursuant to Relief Under Rule 15(c) (Dkt. No. 10) is GRANTED; and
22
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
23
Pursuant to 28 U.S.C. § 2255 (Dkt. No. 1), which incorporates the
24
claims made in Petitioner’s second motion to amend, is DENIED.
25
IT IS SO ORDERED.
26
Dated: August 26, 2014
DEAN D. PREGERSON
United States District Judge
27
28
23
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