Danny Fabricant v. United States of America

Filing 46

ORDER re: Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (CV 1 ) (CR 1011 ) by Judge Ronald S.W. Lew as to Danny Joseph Fabricant (1). The Court DENIES Petitioner's § 2255 Motion and DENIES a Certificate of Appealability. SEE ORDER FOR FURTHER AND COMPLETE DETAILS. (Made JS-6. Case Terminated.) (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 DANNY FABRICANT,
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Petitioner/Defendant, )
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v.
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UNITED STATES OF AMERICA,
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Respondent/Plaintiff. )
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CV 14-8124-RSWL
CR 03-01257-RSWL-1
ORDER re: Motion to
Vacate, Set Aside or
Correct Sentence by a
Person in Federal
Custody Pursuant to 28
U.S.C. § 2255 [CV 1]

Currently before the Court is Petitioner Danny

20 Fabricant’s (“Petitioner”) Motion to Vacate, Set Aside
21 or Correct Sentence Pursuant to 28 U.S.C. § 2255 [CV 1]
22 (“§ 2255 Motion”).

The Government opposes the § 2255

23 Motion [CV 26].
24

The Court, having considered all papers submitted

25 pertaining to the § 2255 Motion, NOW FINDS AND RULES AS
26 FOLLOWS: Petitioner’s § 2255 Motion [CV 1] is DENIED
27 and the Court DENIES a Certificate of Appealability.
28 / / /
1

1
2

I. BACKGROUND
On March 26, 2004, Petitioner and co-defendant

3 Rachel Meyer (“Meyer”) were charged with conspiracy and
4 drug trafficking offenses in violation of 21 U.S.C. §§
5 841 and 846 [CR 105].1
6

On July 28, 2004 a jury convicted Petitioner on all

7 Counts [CR 204].

This Court sentenced Petitioner to

8 life imprisonment [CR 299].

On appeal, the Ninth

9 Circuit reversed Petitioner’s convictions and remanded
10 for a new trial [CR 525].
11

Retrial commenced on September 23, 2008 [CR 674].

12 The Government called among its witnesses Michael
13 Kramer (“Kramer”), an informant acting on behalf of the
14 Bureau of Alcohol, Tobacco, Firearms and Explosives
15 (“ATF”) and ATF Special Agent John Ciccone.
16

On September 26, 2008, a jury again convicted

17 Petitioner on all counts [CR 682].

Petitioner was

18 again sentenced to life imprisonment [CR 848, 849].
19 Petitioner appealed his conviction and sentence [CR
20 850].

The Ninth Circuit affirmed Petitioner’s

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Count one charged conspiracy to distribute more than 50
grams of methamphetamine, a schedule II controlled substance, in
violation of 21 U.S.C. §§ 846; 841(b)(1)(B)(viii); and
841(b)(1)(C). Indictment, ECF No. CR 105. Counts two and three
charged distribution of more than 5 grams of methamphetamine, a
schedule II controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(viii). Id. Count four charged
distribution of more than 50 grams of methamphetamine, a schedule
II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A)(viii). Id. Count five charged possession with
intent to distribute more than 5 grams of methamphetamine, a
schedule II controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(viii). Id.
2

1 conviction and sentence, and the Supreme Court denied
2 certiorari.

United States v. Fabricant, 506 F. App’x

3 636, 642 (9th Cir. 2013), cert. denied 134 S. Ct. 450
4 (Mem.) (2013).
5

Several months after sentencing, Petitioner filed

6 an Ex Parte Application for Order Requiring DNA Testing
7 Per 18 U.S.C. § 3600 [CR 979] (“Ex Parte Application
8 for DNA Testing”), in which Petitioner argued that
9 “[i]f the DNA testing confirms that the defendant’s DNA
10 is not present on the baggies and packaging materials,
11 it would prove that the defendant was factually
12 innocent of selling Meth to Kramer, and was, in fact,
13 framed by Kramer.”
14 12.

Ex Parte Appl. for DNA Testing 11-

This Court rejected the filing because the case

15 was closed [CR 955].

Petitioner appealed, and the

16 Ninth Circuit reversed and remanded with instructions
17 to consider Petitioner’s application on the merits.
18 United States v. Fabricant, 581 F. App’x 663 (9th Cir.
19 2014).

After further briefing by the parties [CR 986

20 (Opposition); CR 995 (Reply)], this Court denied
21 Petitioner’s application on the merits [CR 997],
22 holding that Petitioner failed to meet the statutory
23 requirements for obtaining relief.

Petitioner filed a

24 notice of appeal [CR 1002] on September 18, 2014.
25 matter is currently pending appeal.
26 Fabricant, No. 13-50526.
27
28
3

The

United States v.

1

On October 21, 2014, Petitioner timely2 filed his §

2 2255 Motion [CV 1].

In support of his § 2255 Motion,

3 Petitioner filed a Memorandum of Points and Authorities
4 Part I (Grounds) [CV 3] (“Memorandum Part I”), a
5 Memorandum of Points and Authorities Part II (Statement
6 of Facts) [CV 4] (“Memorandum Part II”), Exhibits Part
7 I [CV 2] and Exhibits Part II [CV 44].

On March 24,

8 2015 the Government filed its Opposition to Motion to
9 Vacate, Set Aside or Correct Sentence Pursuant to 28
10 U.S.C. § 2255 [CV 26] (“Opposition”).

On August 31,

11 2015 Petitioner filed his Reply to Government’s
12 Opposition to Motion to Vacate, Set Aside or Correct
13 Sentence Pursuant to 28 U.S.C. § 2255 [CV 45]
14 (“Reply”).
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16 / / /
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2

A Section 2255 motion must be filed within one year from
the latest of, inter alia, “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1). Here,
Petitioner’s conviction became final on October 15, 2013 when the
Supreme Court denied certiorari of his appeal. See United States
v. Fabricant, 506 F. App’x 636 (9th Cir. 2013), cert. denied, 134
S. Ct. 450 (Mem.) (Oct. 15, 2013). Petitioner’s § 2255 Motion
was filed on October 21, 2014, over a year from the date on which
his conviction became final. However, pursuant to the “prison
mailbox rule,” which applies to pro se habeas petitioners such as
Petitioner, the filing date of Petitioner’s § 2255 Motion is
deemed to be the date on which Petitioner delivered his § 2255
Motion to prison authorities to mail to the clerk of court.
Stillman v. LeMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Here,
Petitioner’s §2255 Motion was postmarked October 13, 2014 [CV 1].
Because October 13, 2014 is within the one-year statute of
limitations imposed by 28 U.S.C. § 2255, Petitioner’s § 2255
Motion was timely filed.
4

1

II. DISCUSSION

2 A.

Legal Standard

3

1. 28 U.S.C. § 2255

4

28 U.S.C. § 2255 provides that a federal prisoner

5 may make a motion to vacate, set aside or correct his
6 sentence on the ground that the sentence was imposed in
7 violation of the Constitution or laws of the United
8 States, or that the court was without jurisdiction to
9 impose such sentence, or that the sentence was in
10 excess of the maximum authorized by law, or is
11 otherwise subject to collateral attack.

28 U.S.C. §

12 2255(a).
13

The range of claims which may be raised in a § 2255

14 motion is narrow.

United States v. Wilcox, 640 F.2d

15 970, 972 (9th Cir. 1981).

In order for a claim to be

16 cognizable under § 2255, a motion must allege: (1) a
17 constitutional error; (2) that the district court
18 lacked jurisdiction to impose the sentence; (3) that
19 the sentence was imposed in excess of the statutory
20 maximum; or (4) that the sentence is otherwise subject
21 to collateral attack.
22

Id.

The remedy under § 2255 does not encompass all

23 claimed errors in conviction and sentencing.

United

24 States v. Addonizio, 442 U.S. 178, 185 (1979); Wilcox,
25 640 F.2d at 973 (“Errors of law which might require
26 reversal of a conviction or sentence on appeal do not
27 necessarily provide a basis for relief under § 2255.”).
28 A mere error of law does not provide a basis for
5

1 collateral relief under § 2255 unless the claimed error
2 constituted “a fundamental defect which inherently
3 results in a complete miscarriage of justice” and
4 renders the entire proceeding “irregular and invalid.”
5 Addonizio, 442 U.S. at 185-86.
6

Further, “the Court has cautioned that § 2255 may

7 not be used as a chance at a second appeal.”

United

8 States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010);
9 United States v. Johnson, 988 F.2d 941, 945 (9th Cir.
10 1993) (“Section 2255 . . . is not designed to provide
11 criminal defendants multiple opportunities to challenge
12 their sentence.”).

A matter that has been decided

13 adversely on appeal from a conviction cannot be
14 relitigated on a § 2255 motion absent changed
15 circumstances of law or fact.

Odom v. United States,

16 455 F.2d 159, 160 (9th Cir. 1972); Olmstead v. United
17 States, 55 F.3d 316, 319 (7th Cir. 1995).
18

Similarly, “[h]abeas relief is an extraordinary

19 remedy and will not be allowed to do service for an
20 appeal.”

Bousley v. United States, 523 U.S. 614, 621

21 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354
22 (1994)) (internal quotation marks omitted).

Where a

23 defendant has procedurally defaulted a claim by failing
24 to raise it on direct appeal, the claim may be raised
25 in a § 2255 motion only if the defendant can first
26 demonstrate both “cause” excusing his procedural
27 default and “actual prejudice” resulting from the claim
28 of error, or that he is “actually innocent.”
6

Bousley,

1 523 U.S. at 622. The existence of “cause” for a
2 procedural default turns on whether the petitioner can
3 show that some objective factor external to the defense
4 impeded defense counsel’s efforts to comply with the
5 procedural rules or made compliance impracticable.
6 Murray v. Carrier, 477 U.S. 478, 488 (1986).

To show

7 “actual prejudice,” the petitioner must show that the
8 alleged errors at trial created more than a mere
9 possibility of prejudice, but that the errors worked to
10 his “actual and substantial disadvantage, infecting his
11 entire trial with error of constitutional dimensions.”
12 United States v. Frady, 456 U.S. 152, 170 (1982).

To

13 establish “actual innocence,” Petitioner must
14 demonstrate that “in light of all the evidence, it is
15 more likely than not that no reasonable juror would
16 have convicted him.”

Bousley, 523 U.S. at 623 (quoting

17 Schlup v. Delo, 513 U.S. 298, 327-28 (1995)) (internal
18 quotation marks omitted).
19 B.

Discussion

20

Petitioner raises five grounds in his § 2255

21 Motion.

Each ground is discussed below.

22

1.

Petitioner’s Due Process Claims

23

In ground one, Petitioner argues that he was

24 “denied due process by the collective actions of the
25 government, this court, and appointed counsel.”
26 Pet’r’s Mem. Part I 1-1.

Specifically, Petitioner

27 lists twenty-four “examples” of alleged due process
28 violations, which he claims are illustrative of his
7

1 broader argument found in the 134-page Memorandum Part
2 II.
3

Id. at 1-1 to 1-20.
After having reviewed Petitioner’s arguments in

4 Memorandum Parts I and II, Petitioner’s “due process”
5 claims can be divided into eight broad categories: (1)
6 the Court denied Petitioner’s various motions and ex
7 parte applications, and overruled Petitioner’s various
8 objections to the Government’s motions and at trial;3
9 (2) the Prosecutor “lied” to the Court on at least two
10 occasions;4 (3) the Government deliberately delayed the
11 proceedings to the prejudice of Petitioner;5 (4) the
12 Court’s hearing to determine whether to allow the
13 Government to use Petitioner’s prior convictions for
14 sentencing purposes was constitutionally inadequate;6
15 (5) co-counsel failed to object to the introduction of
16 certain evidence at trial;7 (6) co-counsel “usurped” the
17 defense;8 (7) the Court erred in its jury instructions;9
18 and (8) the Court and Prosecutor improperly questioned
19 Meyer at retrial.10

Each of these categories is

20 discussed in turn.
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3

Petitioner’s “examples” 1-8, 10-14, 18-19 and related
arguments. In one instance, Petitioner argues that the Court
entirely denied him a hearing when it refused to hear testimony
from six witnesses on a motion to exclude communications with
Kramer under the priest-penitent privilege.
4
Petitioner’s “example” 9 and related arguments.
5
Petitioner’s “examples” 16, 20 and related arguments.
6
Petitioner’s “example” 13 and related arguments.
7
Petitioner’s “examples” 15, 24 and related arguments.
8
Petitioner’s “examples” 17-18, 24 and related arguments.
9
Petitioner’s “examples” 21, 22 and related arguments.
10
Petitioner’s “example” 23 and related arguments.
8

1

a.

The Court’s denial of Petitioner’s various

2

motions and ex parte applications did not

3

constitute a violation of due process.

4

Petitioner raises several arguments that the Court

5 wrongfully denied his various motions, requests and ex
6 parte applications, including, inter alia: a motion
7 related to visitation at the MDC-LA by any attorney or
8 investigator, a motion to exclude material under the
9 priest-penitent privilege, requests for out-of-district
10 subpoenas, requests for payment of witness fees and
11 mileage, requests for a copy of a Confidential
12 Recommendation letter, requests for discovery materials
13 from the Government, a motion to place Petitioner on
14 the “Extra Law Library” list and a motion for return of
15 property.
16

Some of these claims were adversely decided against

17 Petitioner on appeal,11 and Petitioner cannot now raise
18 them in a § 2255 Motion.

Odom, 455 F.2d at 160.

The

19
20

11

See, e.g., Petitioner’s request to be permanently placed

21 on the “Extra Law Library” list [CR 554]; request to allow any
attorney or investigator to visit Petitioner at the MDC-LA [CR

22 511]; request for additional access to a typewriter [CR 519];
motion for return of property [CR 854, 856].

Appellant’s Opening

23 Br. 23-24, ECF No. 26-1. The Ninth Circuit held that
Petitioner’s access to materials and resources was not
24 unreasonable, and that the trial court properly dismissed his
25 motion for return of property. Fabricant, 506 F. App’x at 63826
27
28

639, 641. Petitioner raised these arguments a second time in his
seventh ground of appeal, in which he argued that cumulative
errors at trial violated his due process rights. Appellant’s
Opening Br. 69-70. The Ninth Circuit held that Petitioner failed
to establish multiple errors, much less cumulative errors.
Fabricant, 506 F. App’x at 640-41.
9

1 remainder of these claims are waived because Petitioner
2 failed to raise them on direct appeal and failed to
3 demonstrate “cause” and “actual prejudice,” or “actual
4 innocence,” to excuse his procedural default.

Bousley,

5 523 U.S. at 622.
6

Petitioner contends that several of his arguments

7 were raised on appeal through his filing of Exhibit M,
8 a six-page addendum to his Opening Brief in the Ninth
9 Circuit.

See Pet’r’s Exhibits Part II [CV 44].

In

10 Exhibit M, Petitioner asserted additional grounds of
11 appeal which were not included in his Opening Brief due
12 to the Ninth Circuit’s word limitations.

Many of these

13 additional arguments were not directly addressed in the
14 Ninth Circuit opinion affirming his conviction, and
15 Petitioner now argues that they are not procedurally
16 barred.
17

However, Federal Rule of Appellate Procedure

18 28(a)(6) provides: “The argument must contain the
19 contentions of the appellant on the issues presented,
20 and the reasons therefor, with citations to the
21 authorities, statutes, and parts of the record relied
22 on.”

The Ninth Circuit has held that issues raised in

23 a brief that are not supported by argument are deemed
24 abandoned.

Martinez-Serrano v. I.N.S., 94 F.3d 1256,

25 1259 (9th Cir. 1996) (citing Acosta-Huerta v. Estelle,
26 7 F.3d 139, 144 (9th Cir. 1992)).

Furthermore, issues

27 referred to in the appellant’s statement of the case
28 but not discussed in the body of the brief are waived.
10

1 Id.

The Ninth Circuit has even refused to consider

2 constitutional matters that were neither briefed nor
3 argued, but merely asserted in conclusory terms.
4 United States v. Mateo-Mendez, 215 F.3d 1039, 1043 (9th
5 Cir. 2000).

Petitioner’s “laundry list” of claims in

6 Exhibit M were not properly briefed, argued or reasoned
7 in his brief before the Ninth Circuit.

Therefore,

8 although the Ninth Circuit did not explicitly reject
9 Petitioner’s additional filing, Petitioner did not
10 properly raise these claims on appeal.
11

Moreover, Petitioner fails to show “cause” and

12 “actual prejudice” to excuse his procedural default.
13 Petitioner’s only assertion of “good cause” is that
14 “there simply was not enough room” in his Opening Brief
15 to include all of his arguments.

Reply 6.

However,

16 this argument does not demonstrate “good cause” for
17 excusing Petitioner’s procedural default.

Petitioner’s

18 inability to craft his arguments in compliance with the
19 Ninth Circuit’s 14,000 word limit for opening briefs
20 does not demonstrate an “objective factor external to
21 the defense,” which “impeded defense counsel’s efforts
22 to comply with the procedural rules or [make]
23 compliance impracticable.”
24

Murray, 477 U.S. at 488.

Because Petitioner cannot show cause, we need not

25 consider whether he suffered actual prejudice.

Cook v.

26 Schriro, 538 F.3d 1000, 1028 n.13 (9th Cir. 2008)
27 (citing Engle v. Isaac, 456 U.S. 107, 134 (1982)).
28 any case, Petitioner’s assertion that his appellate
11

In

1 counsel’s choice of grounds to be raised on direct
2 appeal caused him “actual prejudice” is without merit.
3 To show “actual prejudice,” Petitioner must show that
4 the claimed errors at trial worked to his “actual and
5 substantial disadvantage, infecting his entire trial
6 with error of constitutional dimensions.”
7 U.S. at 170.

Frady, 456

The actions of Petitioner’s appellate

8 counsel in choosing which arguments to pursue on appeal
9 did not have any effect on the outcome of Petitioner’s
10 trial.

Regardless, any argument that the Ninth

11 Circuit’s page limitations operated to his “actual
12 prejudice” fails.

See Watts v. Thompson, 116 F.3d 220,

13 224 (7th Cir. 1997) (holding that enforcing page limits
14 and other restrictions on litigants is “rather ordinary
15 practice” that does not violate due process); accord
16 Davis v. Malfi, No. CV 06-4744-JVS (JEM), 2014 U.S.
17 Dist. LEXIS 182882, at *76 (C.D. Cal. Oct. 1, 2014).
18

Alternatively, Petitioner may demonstrate “actual

19 innocence” to excuse his procedural default.
20 523 U.S. at 623.

Bousley,

Although Petitioner argues in his

21 Reply that he generally asserted “actual innocence”
22 throughout the proceedings, his only specific argument
23 in this regard is that the absence of his DNA on any of
24 the baggies containing methamphetamine that Kramer sold
25 to Agent Ciccone proves that he was framed.
26 Mem. Part I 4-1; Reply 8.

Pet’r’s

Even if this assertion is

27
28
12

1 taken as true,12 it does not demonstrate that “in light
2 of all the evidence, it is more likely than not that no
3 reasonable juror would have convicted” Petitioner.
4 Bousley, 523 U.S. at 623.

This is so especially in

5 light of the overwhelming evidence establishing
6 Petitioner’s guilt, including video and audio
7 recordings of Petitioner’s drug transactions, Meyer’s
8 testimony, physical evidence of methamphetamine sold by
9 Petitioner, methamphetamine found in Petitioner’s
10 residence and Petitioner’s own admissions.

Thus,

11 Petitioner’s assertion falls short of proving that he
12 is “actually innocent” to overcome his procedural
13 default.
14

In any case, Petitioner’s claims of error fail to

15 establish a constitutional due process violation to
16 support his § 2255 Motion.

The “root requirement” of

17 procedural due process is that a deprivation of life,
18 liberty or property must be preceded by notice and the
19 opportunity for a hearing.

Cleveland Bd. of Educ. v.

20 Loudermill, 470 U.S. 532, 542 (1985) (citing Mullane v.
21 Central Hanover Bank & Trust Co., 339 U.S. 306, 313
22 (1950)).

However, a court’s rulings on various motions

23 and ex parte applications do not interfere with a
24 petitioner’s constitutional rights to notice and the
25
26
27
28

12

The mere fact that Petitioner’s DNA was not found on the
drug packaging does not show that he did not sell the package to
Kramer. The absence of DNA evidence does not prove that a
defendant was not involved in the offense. See, United States v.
Jordan, 594 F.3d 1265, 1268 (10th Cir. 2010).
13

1 opportunity to be heard if a full hearing is afforded.
2 United States v. Gallagher, 183 F.2d 342, 345 (3d Cir.
3 1950) (“[A] wrong decision upon the merits does not
4 constitute denial of due process of law if the
5 opportunity of a full hearing is afforded.

Such a

6 decision, therefore, does not involve a denial of
7 constitutional rights which may be made the basis of a
8 motion under Section 2255.”).
9

Moreover, “[t]he standard of review of § 2255

10 petitions is stringent and the court presumes earlier
11 proceedings were correct.”

United States v. Benford,

12 No. SACR 05-0010 DOC, 2012 WL 2411920, at *2 (C.D. Cal.
13 June 22, 2012).

Relief is not available merely because

14 of error that may have justified reversal on direct
15 appeal.

Frady, 456 U.S. at 165.

To succeed on a §

16 2255 motion, the defendant must show a defect in the
17 proceedings which resulted in a “complete miscarriage
18 of justice” and rendered the entire proceedings
19 “irregular and invalid.”

Addonizio, 442 U.S. at 185-

20 86; see also Berry, 624 F.3d at 1039-40 (an evidentiary
21 ruling may provide grounds for relief under § 2255
22 where the ruling was so arbitrary as to render the
23 trial fundamentally unfair); Parle v. Runnels, 387 F.3d
24 1030, 1045 (9th Cir. 2004) (where no specific
25 constitutional violation can be shown, “habeas review
26 of trial error is limited to whether the error so
27 infected the trial with unfairness as to make the
28 resulting conviction a denial of due process”).
14

A due

1 process violation only occurs if the error “[had] the
2 effect of converting what was otherwise a fair trial
3 into one which is repugnant to an enlightened system of
4 justice.”

Vandergrift v. United States, 313 F.2d 93,

5 94 (9th Cir. 1963).

Mere prejudice to the defendant is

6 not necessarily sufficient.
7

Id.

Here, Petitioner fails to establish that he was

8 deprived of a fair trial as to his convictions.
9 Petitioner’s § 2255 Motion is devoid of legal authority
10 to support that any of the errors alleged amount to
11 violations of his due process rights.

Moreover, this

12 Court afforded Petitioner a full hearing on his various
13 motions and ex parte applications, and the Court’s
14 rulings were not so arbitrary as to render Petitioner’s
15 trial fundamentally unfair.
16 1039-40.

See Berry, 624 F.3d at

The errors complained of also did not “so

17 infect the trial with unfairness” as to make
18 Petitioner’s conviction a denial of due process.
19 Parle, 387 F.3d at 1045.

See

Not only does Petitioner fail

20 to show in his § 2255 Motion that the Court erred in
21 ruling on his various motions and ex parte
22 applications, but he fails to show a defect in the
23 proceedings which resulted in a “complete miscarriage
24 of justice.”

Addonizio, 442 U.S. at 185-86.

As the

25 Ninth Circuit determined on direct appeal, “Fabricant
26 has not shown multiple errors, let alone cumulative
27 errors that produce sufficient prejudice to warrant a
28 new trial.”

Fabricant, 506 F. App’x at 641.
15

Rather,

1 Petitioner was given the opportunity for a full hearing
2 on his various motions and ex parte applications
3 throughout the proceedings.

Therefore, the Court’s

4 denial of Petitioner’s various motions and ex parte
5 applications did not constitute a violation of due
6 process.
7

b.

Petitioner fails to establish that the

8

Prosecutor “lied” to the Court on at least

9

two occasions.

10

On direct appeal, Petitioner failed to raise the

11 argument that the Prosecutor “lied” on at least two
12 occasions, namely, (1) with respect to its access to
13 Petitioner’s telephone calls and (2) with respect to
14 the anticipated scope of its questioning of Meyer at
15 retrial.

As explained above, because Petitioner failed

16 to demonstrate “cause” and “actual prejudice,” or
17 “actual innocence,” to excuse his procedural default,
18 these claims are barred from Petitioner’s § 2255
19 Motion.
20

Bousley, 523 U.S. at 622.

In any case, Petitioner’s allegations are

21 unsupported in fact.

Because Petitioner fails to

22 demonstrate that the Prosecutor “lied” or otherwise
23 engaged in misconduct, he cannot show that the
24 Prosecutor’s actions deprived him of a fair trial.
25 United States v. Sanchez-Robles, 927 F.2d 1070, 1077
26 (9th Cir. 1991), overruled on other grounds by United
27 States v. Heredia, 483 F.3d 913, 923 n.16 (9th Cir.
28 2007).
16

1

As to Petitioner’s first allegation, Petitioner

2 argues that the production of only one document as a
3 result of a FOIA request proves that Assistant United
4 States Attorney April Christine was “lying” when she
5 told the Court that “there is a procedure that the
6 Government has to go through [to access Petitioner’s
7 phone calls], . . . [and] the Government does not
8 automatically have access to them without going through
9 that procedure.”

Rep. Tr. 9:22-25, Feb. 11, 2008 [CR

10 804]; Pet’r’s Mem. Part II 19-21.

This argument makes

11 little sense and Petitioner fails to show that the
12 Prosecutor “lied” in this instance.
13

As to Petitioner’s second allegation, Petitioner

14 fails to establish that the Government’s questioning of
15 Meyer went outside the agreed-upon scope of Meyer’s
16 prior admissions before the Court as a matter of public
17 record and in the plea agreement.

See Government’s

18 Motion In Limine Re: Admissibility of Anticipated
19 Testimony of Witness Rachel Lee Meyer, ECF No. CR 649.
20 Petitioner merely reproduces the text of the Reporter’s
21 Transcript without explaining or demonstrating that the
22 Government deviated from the scope of its anticipated
23 questioning.

Pet’r’s Mem. Part II 83-89.

For these

24 reasons, Petitioner’s claim that the Prosecutor “lied”
25 to the Court on several occasions fails to state a
26 cognizable claim under § 2255.
27 / / /
28 / / /
17

1

c.

The Government did not deliberately delay

2

the proceedings in violation of

3

Petitioner’s due process rights.

4

Petitioner argues that the Government engaged in

5 “dirty tricks” by deliberately delaying the hearing on
6 Petitioner’s Motion for Transfer of Evidence for
7 Quantitative and Qualitative Analysis at an Independent
8 Laboratory [CR 566] (“Motion for Independent Analysis
9 of Evidence”) and waiting until two weeks before trial
10 to file its motion in limine regarding the
11 admissibility of anticipated testimony of Meyer [CR
12 649].

Pet’r’s Mem. Part I 1-6, 1-8.

These arguments

13 are entirely without merit.
14

As an initial matter, Petitioner did not raise

15 these arguments on direct appeal, and fails to
16 demonstrate “cause” and “actual prejudice,” or “actual
17 innocence,” to excuse his procedural default.
18 Therefore, these claims are barred from his § 2255
19 Motion.
20

Bousley, 523 U.S. at 622.

On the merits, Petitioner cannot show that the

21 Prosecutor engaged in misconduct which “so infected the
22 trial with unfairness as to make the resulting
23 conviction a denial of due process.”

Darden v.

24 Wainwright, 477 U.S. 168, 180-81 (1986) (holding that
25 prosecutor’s comments in closing argument, though
26 “undoubtedly improper,” did not deprive defendant of
27 due process rights).

In order to prove a violation of

28 due process due to prosecutorial misconduct, Petitioner
18

1 must show that “the Government’s conduct [was] so
2 grossly shocking and so outrageous as to violate the
3 universal sense of justice,” which is an “extremely
4 high standard.”

United States v. Smith, 924 F.2d 889,

5 897 (9th Cir. 1991).

Because Petitioner fails to show

6 that the Prosecutor engaged in misconduct, he cannot
7 demonstrate that he was denied a fair trial.

See

8 Sanchez-Robles, 927 F.2d at 1077.
9

With regards to the Motion for Independent Analysis

10 of Evidence, Petitioner did not oppose the Government’s
11 request for an extension of time to file its Response
12 to the Motion [CR 568].

Both parties then stipulated

13 to take the Motion off-calendar [CR 575, 576].

On the

14 Court’s own motion, the hearing was then continued from
15 May 13, 2008 to August 14, 2008 [CR 611].

On August

16 20, 2008 the Court granted Petitioner’s Motion [CR
17 628].

It is not clear how the Government’s actions

18 with regards to this Motion prevented Petitioner from
19 “demonstrat[ing] to the Jury that there was less than
20 50 grams of pure Meth in the Meth mixture.”
21 Pet’r’s Mem. Part I 1-6.

See

It is equally unclear that

22 the Government “deliberately” or wrongfully delayed the
23 hearing of the Motion.

Any delay by the Government

24 does not amount to behavior that is “so grossly
25 shocking and so outrageous as to violate the universal
26 sense of justice.”

Smith, 924 F.2d at 897.

Rather,

27 Petitioner’s failure to perform the independent
28 analysis before trial rests squarely with the defense.
19

1

Petitioner’s second argument regarding the timing

2 of the Government’s motion in limine concerning Meyer’s
3 testimony is similarly unsupported.

Petitioner does

4 not demonstrate that the Prosecutor committed
5 misconduct in filing its motion in limine, much less
6 that the timing of this motion “sandbagged” the
7 defense.

The Prosecutor’s timing for filing its motion

8 in limine two weeks before trial is not an unusual
9 practice and does not meet the “extremely high
10 standard” required to demonstrate prosecutorial
11 misconduct.

Smith, 924 F.2d at 897.

For these

12 reasons, both of Petitioner’s claims fail to state a
13 claim under § 2255.
14

d.

The hearing on the use of Petitioner’s

15

prior convictions for sentencing did not

16

violate Petitioner’s due process rights.

17

Petitioner argues that the Court improperly

18 permitted the Government to submit additional briefing
19 on the use of Petitioner’s prior convictions for
20 purposes of sentencing.
21 ECF Nos. CR 264, 277.

Pet’r’s Mem. Part I 1-5; see
Prior to the hearing pursuant to

22 21 U.S.C. § 851 to establish prior convictions,
23 Petitioner filed a Motion to compel the United States
24 Attorney’s office to provide information showing that
25 Petitioner was provided his Sixth Amendment right to
26 counsel in reaching the prior convictions [CR 203].
27 The Government opposed Petitioner’s Motion [CR 234].
28 The Court denied the Motion [CR 238].
20

At a hearing on

1 December 13, 2004, [CR 263] the Court ordered the
2 Government to submit briefs regarding “sufficiency of
3 records” to support its arguments on Petitioner’s prior
4 convictions.

The Court also ordered “Defendant . . .

5 to respond thereafter.”

After the Government filed its

6 brief [CR 264], Petitioner filed a Response [CR 277].
7 On January 24, 2005, the Court held the hearing
8 pursuant to 21 U.S.C. § 851 [CR 279], in which the
9 Court denied Petitioner’s objections and permitted the
10 Government to use Petitioner’s prior convictions for
11 purposes of sentencing.13

Petitioner now argues that

12 this procedure violated his due process rights.
13 Pet’r’s Mem. Part I 1-5.
14

To the extent that Petitioner complains that the

15 Court’s acceptance of additional filings from the
16 Government regarding the 21 U.S.C. § 851 hearing
17 violated his due process rights, Petitioner failed to
18 raise this argument on direct appeal.

Therefore, as

19 noted above, absent a showing of “cause” and
20 “prejudice,” or “actual innocence,” Petitioner’s claim
21 is procedurally barred.

Bousley, 523 U.S. at 622.

22 / / /
23
24
25
26
27
28

13

Petitioner argues that the 21 U.S.C. § 851 hearing was
concluded on December 13, 2004. See Pet’r’s Mem. Part II at 57.
However, at the hearing on December 13, 2004, the Court
explicitly requested more information from the parties regarding
Petitioner’s prior convictions and noted that “[t]he Court will
issue a final ruling on this matter at the time of Defendant’s
sentencing.” Minutes of First Day Jury Trial, Dec. 13, 2004, ECF
No. 263.
21

1

In any case, the Court’s acceptance of further

2 briefing under 21 U.S.C. § 851 did not violate
3 Petitioner’s due process rights.

Although the Court

4 ordered further briefing from the Government, the Court
5 also ordered further briefing from Petitioner.14
6 Therefore, Petitioner was afforded an adequate
7 opportunity to present his arguments.

The Court’s

8 request for additional information necessary to make a
9 determination under 21 U.S.C. § 851 did not constitute
10 a defect in the proceedings which resulted in a
11 “complete miscarriage of justice” and rendered the
12 entire proceedings “irregular and invalid.”

Addonizio,

13 442 U.S. at 185-86; see also United States v. Tucker,
14 404 U.S. 443, 446 (1972) (“[A] trial judge in the
15 federal judicial system generally has wide discretion
16 in determining what sentence to impose . . . [and]
17 before making that determination, a judge may
18 appropriately conduct an inquiry broad in scope,
19 largely unlimited either as to the kind of information
20 he may consider, or the source from which it may
21 come.”).
22

For these reasons, Petitioner’s argument cannot

23 form the basis for relief under § 2255.
24 / / /
25 / / /
26 / / /
27
14

The Court mandated, “Defendant is to respond [after
ECF No. CR 263.

28 submission of the Government’s briefs].”
22

1

e.

Co-counsel’s failure to object to the

2

use of Petitioner’s alias, Joe Carse,

3

did not constitute a due process

4

violation.

5

Petitioner’s argument that his due process rights

6 were violated when co-counsel failed to object to the
7 use of Petitioner’s alias, Joe Carse, at trial was
8 litigated and adversely decided on appeal.

Fabricant,

9 506 F. App’x at 640-41; Appellant’s Opening Br. 69-71
10 (specifically raising the argument as an example of
11 cumulative error in violation of Petitioner’s Fifth
12 Amendment due process rights).

The Ninth Circuit

13 rejected this argument and held that “Fabricant has not
14 shown multiple errors, let alone cumulative errors that
15 produce sufficient prejudice to warrant a new trial.”
16 Fabricant, 506 F. App’x at 641.

Petitioner is

17 therefore barred from relitigating this claim under §
18 2255.
19

Odom, 455 F.2d at 160.

Even if Petitioner frames this argument as a claim

20 of ineffective assistance of counsel under Strickland
21 v. Washington, 466 U.S. 668 (1984), Petitioner’s claim
22 fails because Petitioner represented himself at trial.
23 Faretta v. California, 422 U.S. 806, 834 n. 46 (1975)
24 (“[A] defendant who elects to represent himself cannot
25 thereafter complain that the quality of his own defense
26 amounted to a denial of ‘effective assistance of
27 counsel.’”); Williams v. Stewart, 441 F.3d 1030, 1047
28 n.6 (9th Cir. 2006) (“Having failed to show that his
23

1 decision to represent himself was involuntary, [a
2 defendant] cannot claim that he was denied the
3 effective assistance of counsel at trial.”).

Moreover,

4 Petitioner’s claim that co-counsel interfered with his
5 self-representation has already been resolved against
6 him on appeal,

Fabricant, 506 F. App’x at 638-40, and

7 Petitioner is barred from asserting in his § 2255
8 Motion that co-counsel’s failure to object to certain
9 evidence violated his right to self-representation.
10 See Odom, 455 F.2d at 160.
11

f.

Co-counsel’s alleged “usurpation” of the

12

defense did not violate Petitioner’s due

13

process rights.

14

On direct appeal of his conviction and sentence,

15 Petitioner claimed that his waiver of right to counsel
16 was invalid, that co-counsel usurped his
17 representation, and that his right to access materials
18 to prepare a defense was unreasonably infringed in
19 violation of Faretta.

Appellant’s Opening Br. 10-37.

20 The Ninth Circuit rejected all three of these claims.
21 Fabricant, 506 F. App’x at 638-40.

Thus, to the extent

22 Petitioner attempts to raise a claim that co-counsel
23 interfered with his self-representation, or that his
24 right to access to materials was unreasonably
25 infringed, these issues have already been resolved
26 against him on direct appeal and cannot be relitigated
27 under § 2255.

Odom, 455 F.2d at 160.

28 / / /
24

1

However, Petitioner now asserts that co-counsel’s

2 “usurpation” of his defense violated his due process
3 rights to a fair trial.

Reply 15.

He avers that he

4 does not attempt to re-allege Sixth Amendment Faretta
5 violations in his § 2255 Motion.

Id.

Petitioner

6 cannot merely reformulate the identical Faretta claims
7 he already litigated on appeal as newly raised Fifth
8 Amendment Due Process violations.

Moreover,

9 Petitioner’s claims are properly analyzed under the
10 Sixth Amendment.

Although the Fifth Amendment

11 guarantees criminal defendants “fundamental fairness”
12 throughout the criminal process, “[w]here a particular
13 Amendment ‘provides an explicit textual source of
14 constitutional protection’ against a particular sort of
15 government behavior, ‘that Amendment, not the more
16 generalized notion of “substantive due process,” must
17 be the guide for analyzing these claims.”
18 Oliver, 510 U.S. 266, 273 (1994).

Albright v.

Since the Ninth

19 Circuit already addressed these claims under the Sixth
20 Amendment, these claims are barred.

Odom, 455 F.2d at

21 160.
22

Further, even if Petitioner could procedurally

23 raise these claims, his argument fails.

Both the Ninth

24 Circuit and this Court have found that co-counsel did
25 not usurp the defense and that Petitioner’s access to
26 materials was not unreasonable.
27 App’x at 638-39.

Fabricant, 506 F.

Moreover, Petitioner cannot show that

28 the provision of copies of certain documents and
25

1 materials only to his co-counsel rises to the level of
2 a due process violation when Petitioner specifically
3 authorized co-counsel to communicate with the
4 Government on his behalf.

Therefore, none of

5 Petitioner’s complained errors amount to a defect in
6 the proceedings which resulted in a “complete
7 miscarriage of justice,” and Petitioner fails to show
8 that co-counsel’s actions violated his due process
9 rights.
10
11
12

Addonizio, 442 U.S. at 185-86.
g.

The jury instructions did not violate
Petitioner’s due process rights.

Petitioner raises two claims that the jury

13 instructions violated his due process rights: (1) the
14 Court erred in not instructing the jury to determine
15 the “exact weight” of methamphetamine in each Count and
16 (2) the Court failed to give a “simple possession”
17 instruction regarding the possession with intent to
18 distribute charge.
19

Petitioner’s first claim fails because Petitioner

20 failed to raise the argument on appeal, and Petitioner
21 cannot demonstrate “cause” and “actual prejudice,” or
22 “actual innocence” to excuse his procedural default.
23 Bousley, 523 U.S. at 622.

In any case, this claim

24 fails on the merits because Petitioner fails to
25 demonstrate how the instruction was erroneous, much
26 less that it rendered the trial “fundamentally unfair.”
27 Berry, 624 F.3d at 1040; see also Henderson v. Kibbe,
28 431 U.S. 145, 154 (1977) (“The question in . . . a
26

1 collateral proceeding is ‘whether the ailing
2 instruction by itself so infected the entire trial that
3 the resulting conviction violates due process.’”).
4 Here, it is highly unlikely that the jury would have
5 reached a different conclusion had it been instructed
6 to determine the exact weight of methamphetamine in
7 each Count.

Therefore, Petitioner fails to show that

8 constitutional error was committed.
9

As to Petitioner’s second claim that the jury

10 instructions violated his due process rights because
11 the Court failed to give a “simple possession”
12 instruction, this claim was fully litigated and
13 adversely decided against Petitioner on appeal.
14 Fabricant, 506 F. App’x at 640.

Petitioner cannot

15 relitigate this claim in his § 2255 Motion.

Odom, 455

16 F.2d at 160.
17

For these reasons, Petitioner’s claims of error in

18 the jury instructions fail under § 2255.
19
20
21

h.

The questioning of Meyer at trial did not
violate Petitioner’s due process rights.

Petitioner alleges that the Court and Prosecutor

22 improperly questioned Meyer at retrial when “the Court
23 quickly stepped in as a third prosecutor, and took over
24 the questioning of Meyer,” and granted the Prosecutor’s
25 request to treat Meyer as a hostile witness.

However,

26 Petitioner failed to object to the admission of Meyer’s
27
28
27

1 testimony at trial15 and failed to raise this argument
2 on appeal to the Ninth Circuit.

Because Petitioner

3 cannot show “cause” and “actual prejudice,” or “actual
4 innocence,” to excuse his procedural default, this
5 claim is barred on his § 2255 Motion.

Bousley, 523

6 U.S. at 622.
7

In any case, under Federal Rule of Evidence 611(a),

8 a district court has a duty to exercise reasonable
9 control over the examination of witnesses so as to make
10 the examination procedures effective for determining
11 the truth, avoid wasting time and protect witnesses
12 from harassment or undue embarrassment.
13 611(a).

Fed. R. Evid.

Thus, the district court has broad discretion

14 in supervising trials and may participate in the
15 examination of witnesses to clarify evidence, confine
16 counsel to evidentiary rulings, ensure the orderly
17 presentation of evidence and prevent undue repetition.
18 United States v. Laurins, 857 F.2d 529, 537 (9th Cir.
19 1988).

Additionally, it is well-settled law that where

20 a witness disclosed in her testimony that she was
21 adverse in interest to the party calling her, the party
22 might change the character of the examination from a
23 direct to a cross-examination.

See United States v.

24 Budd, 144 U.S. 154, 165-66 (1982); see also Fed. R.
25 Evid. 611(c).

Given Meyer’s recalcitrant conduct

26 during the Prosecutor’s examination at trial, the Court
27
15

Petitioner admits that co-counsel did not object to
Pet’r’s Mem. Part I 1-11.

28 Meyer’s questioning.

28

1 was within its discretion to allow the Prosecutor to
2 treat Meyer as a hostile witness.

See Thomas v.

3 Cardwell, 626 F.2d 1375, 1386-87 (9th Cir. 1980)
4 (holding that witness’s evasive, ambiguous and
5 conflicting statements properly supported trial court’s
6 ruling that witness was hostile).

Thus, the actions of

7 the Court and the Prosecutor in questioning Meyer do
8 not constitute an error that is so fundamentally unfair
9 as to constitute a due process violation.

Id. at 1386

10 (“Such a controversy [over whether the court properly
11 declared the prosecutor’s witness to be hostile]
12 ordinarily does not give rise to the federal
13 constitutional question necessary for habeas corpus
14 relief.”).

For these reasons, Petitioner’s claim is

15 not cognizable under § 2255.
16
17

i.

Conclusion

The Court finds that Petitioner’s “due process”

18 claims raised in ground one are procedurally barred.
19 In any case, Petitioner fails to establish a
20 constitutional violation of due process to support his
21 § 2255 Motion.
22
23
24

2.

Petitioner’s Claim That His Sentence Is
Unlawful

In ground two, Petitioner claims that his sentence

25 is unlawful because the methamphetamine involved in his
26 conviction was not an “injectable liquid.”
27 Mem. Part I 2-1 to 2-2.

Pet’r’s

He asserts that non-

28 “injectable liquid” methamphetamine is a schedule III
29

1 controlled substance under 21 U.S.C. § 812, not a
2 schedule II controlled substance as charged.
3

Id.

On direct appeal, however, Petitioner did not raise

4 this claim.16

As noted above, Petitioner fails to make

5 a showing of “cause” and “actual prejudice,” or “actual
6 innocence,” to excuse his procedural default.
7 Therefore, Petitioner’s claim under ground two is
8 procedurally barred.
9

Bousley, 523 U.S. at 622.

In any case, Petitioner’s claim fails on the

10 merits.

It is well settled that methamphetamine, in

11 all its forms, has been classified as a Schedule II
12 controlled substance in accordance with 21 C.F.R. §
13 1308.12(d).

United States v. Durham, 941 F.2d 886, 889

14 (9th Cir. 1991) (“This court has repeatedly concluded,
15 as we have again in this opinion, that methamphetamine
16 has been properly designated as a Schedule II
17 controlled substance.”).17

This is despite the earlier

18
19
20
21
22
23
24
25
26
27
28

16

Although Petitioner asserted this argument in Exhibit M
before the Ninth Circuit, Petitioner did not properly raise this
claim on appeal. See Martinez-Serrano v. I.N.S., 94 F.3d at 1259
(holding that issues are waived if merely raised in a brief but
not supported by argument).
17
See also Gonzalez v. United States, No. CR-F-03-5165 OWW,
2009 WL 2379978, at *5-6 (E.D. Cal. July 30, 2009); Torres v.
United States, No. CR-F-03-5165 OWW, 2008 WL 2225745, at *3 (E.D.
Cal. May 28, 2008); accord United States v. Duran, 219 F. App’x
762, 764 (10th Cir. 2007); United States v. Walters, 163 F. App’x
674, 684 (10th Cir. 2006); United States v. Macedo, 406 F.3d 778,
785 (7th Cir. 2005); United States v. Alcorn, 93 F. App’x 37, 39
(6th Cir. 2004); United States v. Gori, 324 F.3d 234, 239-40 (3d
Cir. 2003); United States v. Pinkley, 24 F. App’x 287, 288-89
(6th Cir. 2001); United States v. Lane, 931 F.2d 40 (11th Cir.
1991); United States v. Roark, 924 F.2d 1426, 1428-29 (8th Cir.
1991); United States v. Kinder, 946 F.2d 362, 368 (5th Cir.
1989); United States v. Schrock, 855 F.2d 327, 331-32 (6th Cir.
30

1 language of 21 U.S.C. § 812(c) which distinguishes
2 between injectable-liquid and non-injectable
3 methamphetamine, and includes only the former in
4 Schedule II.

United States v. Kendall, 887 F.2d 240,

5 241 (9th Cir. 1989) (per curiam); see also United
6 States v. Turner, 187 F. App’x 698, 700 (9th Cir. 2006)
7 (“We have held that the Attorney General properly
8 rescheduled all forms of methamphetamine to Schedule II
9 [in 21 C.F.R. § 1308.12], despite language in 21 U.S.C.
10 § 812(c) that includes some forms of methamphetamine in
11 Schedule III.”).

Therefore, Petitioner was properly

12 sentenced in accordance with 21 U.S.C. § 841, and his
13 argument concerning the classification of
14 methamphetamine under 21 U.S.C. § 812 does not warrant
15 reversal of his sentence.
16

3.

17

Petitioner’s claim in ground three is that his

Petitioner’s Claim of Priest-Penitent Privilege

18 “conviction was obtained by use of evidence that
19 violated [the] common law priest-penitent privilege.”
20 Pet’r’s Mem. Part I 3-1.
21

As an initial matter, Petitioner did not raise a

22 violation of the priest-penitent privilege on direct
23 appeal.18

As noted above, Petitioner also fails to show

24
25 1988); Brain v. United States, No. 4:03-CR-38, 2011 WL 1343344,
26
27
28

at *11 (E.D. Tenn. Apr. 8, 2011).
18
As with ground two, Petitioner asserted this argument in
Exhibit M before the Ninth Circuit. However, the Court finds
that Petitioner did not properly raise this claim on appeal. See
Martinez-Serrano v. I.N.S., 94 F.3d at 1259 (holding that issues
are waived if merely raised in a brief but not supported by
31

1 “cause” and “actual prejudice,” or “actual innocence,”
2 to excuse his procedural default.

Therefore,

3 Petitioner’s argument under ground three is barred.
4 Bousley, 523 U.S. at 622.
5

Regardless of Petitioner’s procedural default,

6 Petitioner’s claim fails because the communications
7 between Petitioner and Kramer are not protected by the
8 priest-penitent privilege.
9

Federal Rule of Evidence 501 provides that

10 privileges are “governed by the principles of the
11 common law as they may be interpreted by the courts of
12 the United States in the light of reason and
13 experience.”

Fed. R. Evid. 501.

The Supreme Court has

14 long recognized a priest-penitent privilege, which has
15 been stated broadly as “embracing any confession by a
16 penitent to a minister in his capacity as such to
17 obtain such spiritual aid as was sought and held out in
18 this instance.”

Mockaitis v. Harcleroad, 104 F.3d

19 1522, 1531 (9th Cir. 1997), overruled on other grounds
20 by City of Boerne v. Flores, 521 U.S. 507 (1997).

The

21 privilege applies to protect communications made (1) to
22 a clergyperson, (2) in his or her spiritual
23 professional capacity (3) with a reasonable expectation
24 of confidentiality.

In re Grand Jury Investigation,

25 918 F.2d 374, 384 (3d Cir. 1990).

Communications that

26 fail to meet the requirements of the privilege will not
27
28 argument).
32

1 be protected.

See United States v. Webb, 615 F.2d 828

2 (9th Cir. 1980) (holding that communications between
3 prisoner and clergyman were not confidential, and
4 therefore would not be protected).
5

Here, Petitioner failed to demonstrate that the

6 privilege applied to his communications with Kramer.
7 Petitioner’s assertion that he or Kramer was an
8 ordained minister is not by itself sufficient to prove
9 that the priest-penitent privilege applied to the
10 communications at issue.

Petitioner failed to present

11 any evidence showing that he or Kramer acted in his
12 spiritual professional capacity, that the
13 communications at issue involved religious or spiritual
14 counseling or that the communications were
15 confidential.
16 F.2d at 384.

See In re Grand Jury Investigation, 918
Petitioner’s argument that the priest-

17 penitent privilege has no “crime/fraud” exception is
18 similarly unconvincing.

Regardless of criminal

19 activity involving Petitioner and Kramer, Petitioner
20 did not present sufficient evidence that he or Kramer
21 sought any sort of spiritual counseling through their
22 communications.
23

Additionally, Petitioner’s assertion that the Court

24 failed to grant him a hearing on the issue is
25 completely without merit.

The Court, after having

26 considered the parties’ briefs, declarations and
27 affidavits filed therein, and the parties’ arguments at
28 the hearing on the matter, determined that Petitioner’s
33

1 argument was factually inadequate [CR 146].

Further,

2 Petitioner’s presentation of six witnesses to testify
3 that Kramer (1) regularly acted as an ordained minister
4 and (2) repeatedly told people that “anything said to
5 [him was] confidential,” would not have been sufficient
6 to demonstrate that the specific communications at
7 issue fell under the scope of the priest-penitent
8 privilege.
9

Therefore, because the communications between

10 Petitioner and Kramer were not protected under the
11 priest-penitent privilege, the admission of such
12 communications at trial cannot form the basis for a §
13 2255 motion.
14

4.

Petitioner’s Claim That The Court Improperly

15

Denied His Ex Parte Application for DNA Testing

16

In ground four, Petitioner argues that his Ex Parte

17 Application for DNA Testing under 18 U.S.C. § 3600 was
18 wrongfully denied.19

Pet’r’s Mem. Part I 4-1.

However,

19 this Court lacks jurisdiction to consider this claim
20 because the Court’s denial of Petitioner’s Application
21 for DNA Testing is currently pending appeal in the
22 Ninth Circuit, United States v. Fabricant, No. 1423 50428.

Griggs v. Provident Consumer Discount Co., 459

24 U.S. 56, 58 (1982) (“The filing of a notice of appeal
25 is an event of jurisdictional significance–it confers
26
19

Petitioner’s alternative argument that ground four

27 asserts his “actual innocence” is considered in relation to
Petitioner’s procedurally defaulted claims, even though the Court
28 finds this argument unpersuasive.
34

1 jurisdiction on the court of appeals and divests the
2 district court of its control over those aspects of the
3 case involved in the appeal.”).
4

Further, even if the Court had jurisdiction to

5 consider this claim, “[n]othing in [18 U.S.C. § 3600]
6 shall provide a basis for relief in any Federal habeas
7 corpus proceeding.”

18 U.S.C. § 3600(h)(2). Therefore,

8 the statute, by its express terms, does not afford any
9 right to habeas relief.

18 U.S.C. § 3600(h)(2); see

10 also D’Amario v. Banks, No. CV 10-2860-MMM(CW), 2011 WL
11 5857488, at *4 (C.D. Cal. Sep. 29, 2011).

Moreover,

12 there is also no freestanding federal constitutional
13 right to post-conviction DNA testing.

See Dist.

14 Attorney’s Office for Third Judicial Dist. v. Osborne,
15 557 U.S. 52, 129 (2009) (“We reject the invitation [to
16 recognize a freestanding right to DNA evidence] and
17 conclude . . . there is no such substantive due process
18 right.”).

Accordingly, Petitioner’s claim under ground

19 four is not cognizable under § 2255.
20

5.

21

In ground five, Petitioner challenges his

Petitioner’s Brady Claims

22 conviction on the ground of newly discovered evidence.20
23
24
25
26
27
28

20

After the Government framed Petitioner’s argument as
alleging a Brady violation, Petitioner adopted the Government’s
interpretation in his Reply. The Court considers Petitioner’s
claim as though he originally alleged a Brady violation. See
Castro v. United States, 540 U.S. 375, 381-82 (2003) (“Federal
courts sometimes will ignore the legal label that a pro se
litigant attaches to a motion and recharacterize the motion in
order to . . . create a better correspondence between the
substance of a pro se motion’s claim and its underlying legal
35

1 Pet’r’s Mem. Part I 5-1.
2
3

a.

Legal Standard

“Short proof of actual innocence, claims solely

4 based on new evidence are generally not cognizable on
5 habeas.”

Berry, 624 F.3d at 1038.

A claim of newly

6 discovered evidence to support a motion under § 2255
7 must be based on an independent constitutional
8 violation.

Id. (citing Herrera v. Collins, 506 U.S.

9 390, 400 (“[N]ewly discovered evidence . . . alleged in
10 a habeas application . . . must bear upon the
11 constitutionality of the applicant’s detention; the
12 existence merely of newly discovered evidence relevant
13 to the guilt of a state prisoner is not a ground for
14 relief on federal habeas corpus.”) (emphasis in
15 original).

A Brady violation involves a constitutional

16 violation of due process, and therefore constitutes an
17 “independent constitutional violation” that is
18 cognizable under § 2255.

See United States v. Bagley,

19 473 U.S. 667, 675-76 (1985) (“The Brady rule is based
20 on the requirement of due process.”).
21

In Brady v. Maryland, the Supreme Court held that

22 “the suppression by the prosecution of evidence
23 favorable to an accused upon request violates due
24 process where the evidence is material either to guilt
25 or to punishment, irrespective of the good faith or bad
26 faith of the prosecution.”

373 U.S. 83, 87 (1963).

27
28 basis.”).
36

1 Brady violations have three components: (1) the
2 “evidence at issue must be favorable to the accused,
3 either because it is exculpatory, or because it is
4 impeaching,” (2) “that evidence must have been
5 suppressed by the State, either willfully or
6 inadvertently,” and (3) “prejudice must have ensued.”
7 Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012)
8 (quoting Strickler v. Greene, 527 U.S. 263, 281-82
9 (1999)).

The terms “material” and “prejudicial” are

10 used interchangeably in Brady cases.

Id.

“Evidence is

11 ‘material’ under Brady ‘when there is a reasonable
12 probability that, had the evidence been disclosed, the
13 result of the proceeding would have been different.’”
14 Id. (quoting Cone v. Bell, 556 U.S. 449, 469-70
15 (2009)).

“A ‘reasonable probability’ of a different

16 result [exists] when the government’s evidentiary
17 suppression ‘undermines confidence in the outcome of
18 the trial.’”

United States v. Lopez, 577 F.3d 1053,

19 1059 (9th Cir. 2009) (quoting Kyles v. Whitley, 514
20 U.S. 419, 434 (1995)).
21
22
23

b.

Petitioner’s first argument of “newly
discovered evidence”

Here, Petitioner’s first Brady claim is that newly

24 discovered evidence shows that Agent Ciccone
25 deliberately lied during his cross-examination
26 testimony on the subject of Kramer being able to own,
27 possess and carry firearms.
28 5-2.

Pet’r’s Mem. Part I 5-1 to

However, as in Berry, where the Ninth Circuit
37

1 determined that newly discovered evidence that a
2 witness committed perjury at trial did not demonstrate
3 an independent constitutional violation but merely
4 called into doubt the overall weight of the evidence
5 against the § 2255 petitioner, Petitioner’s claim
6 regarding Agent Ciccone merely casts doubt on the
7 credibility of Ciccone’s testimony.

Petitioner does

8 not allege that this newly discovered evidence bears
9 upon the constitutionality of his detention.

Nor does

10 the evidence prove that Petitioner is “actually
11 innocent” of the convicted crime.
12 at 1038.

See Berry, 624 F.3d

Even if the Court interprets Petitioner’s

13 claim as an alleged Brady violation, Petitioner cannot
14 establish prejudice as a result of the State’s willful
15 or inadvertent suppression of evidence that Agent
16 Ciccone lied.

In other words, even if the jury had

17 discounted Agent Ciccone’s testimony as a result of
18 this evidence, there was ample other testimony and
19 physical evidence to support Petitioner’s guilt, and
20 the suppressed evidence does not undermine confidence
21 in the outcome of the trial.

Lopez, 577 F.3d at 1059.

22 Petitioner cannot show a reasonable probability that,
23 had the evidence been disclosed, he would not have been
24 convicted.
25
26
27

c.

Runningeagle, 686 F.3d at 769.
Petitioner’s second argument of “newly
discovered evidence”

Petitioner’s second claim of newly discovered

28 evidence is also without merit.
38

Petitioner claims that

1 there is newly discovered evidence that “unknown”
2 federal law enforcement agents “lied” to Cynthia
3 Garcia’s family about Kramer’s involvement in the
4 murder and “got them to agree not to sue Kramer.”
5 Pet’r’s Mem. Part I 5-2.

Once again, Petitioner fails

6 to establish, or even allege, a Brady violation.
7 Nevertheless, Petitioner’s allegations amount to
8 nothing more than speculation.

He has not presented

9 any evidence of an agreement between Cynthia Garcia’s
10 family and the “unknown” federal agents.

Nor has he

11 presented evidence that such an agreement existed at
12 the time Kramer testified at retrial, or that the
13 Government suppressed evidence of the agreement.
14 Moreover, even though Kramer was a key witness in the
15 Government’s case, any evidence of such an agreement
16 would be cumulative of other impeachment evidence
17 against Kramer, and was therefore not prejudicial to
18 Petitioner.

Further, as mentioned above, the

19 Government presented ample evidence of Petitioner’s
20 guilt aside from Kramer’s testimony.

Thus, Petitioner

21 fails to show that there is a reasonable probability
22 that, had the evidence been disclosed, the result of
23 the proceeding would have ended in his acquittal.
24 Runningeagle, 686 F.3d at 769.
25

For these reasons, Petitioner fails to establish a

26 Brady violation to support his § 2255 Motion.
27 / / /
28 / / /
39

1
2

d.

Rule 33 Motion For New Trial

A district court may treat a § 2255 motion as a

3 Federal Rule of Criminal Procedure 33 motion for a new
4 trial.

Berry, 624 F.3d at 1039.

Where petitioner’s

5 claim is not cognizable under § 2255, “[t]he proper
6 device [for a claim of newly discovered evidence] is
7 Federal Rule of Criminal Procedure 33, which allows a
8 prisoner to move for a new trial based on newly
9 discovered evidence.” Berry, 624 F.3d at 1038 (citing
10 Fed. R. Crim. P. 33(b)(1).

Such a motion under Rule 33

11 must be brought within three years of the date of the
12 guilty verdict.
13 construed.
14

Id.

Rule 33 time limits are strictly

Herrera, 506 U.S. at 409.

Here, the jury convicted Petitioner in September

15 2008.

Petitioner did not file his § 2255 Motion until

16 October 2014, more than six years after the date of the
17 guilty verdict.

Therefore, a Rule 33 motion for a new

18 trial is barred as untimely.21
19 / / /
20 / / /
21
21

In any case, to qualify for a new trial, Petitioner must

22 establish: “(1) the evidence is newly discovered; (2)
was diligent in seeking
23 [Petitioner]material to the issues atthe evidence; (3) the
evidence is
trial; (4) the evidence is
not (a) cumulative or (b) merely impeaching; and (5) the evidence
24
25
26
27
28

indicates the [Petitioner] would probably be acquitted in a new
trial.” Berry, 624 F.3d at 1042 (citing United States v.
Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc)). Here,
Petitioner’s “newly discovered evidence” would merely serve to
impeach the testimony of Agent Ciccone and Kramer. Additionally,
the evidence does not indicate that Petitioner would probably be
acquitted in a new trial. Therefore, Petitioner does not qualify
for a new trial under Rule 33.
40

1

6.

2
3

Certificate of Appealability
a.

Legal Standard

Under 28 U.S.C. § 2253(c), a federal prisoner must

4 seek and obtain a certificate of appealability (“COA”)
5 to appeal the district court’s denial of relief under §
6 2255.

28 U.S.C. § 2253(c)(1) (“Unless a circuit

7 justice or judge issues a [COA], an appeal may not be
8 taken to the court of appeals from . . . the final
9 order in a proceeding under section 2255.”).
10 district judge may also issue a COA.

A

See Fed. R. App.

11 P. 22(b); United States v. Asrar, 116 F.3d 1268, 126912 70 (9th Cir. 1997) (“[D]istrict courts possess the
13 authority to issue [COAs] in § 2255.”); Rule 11(a) of
14 the Rules Governing Section 2255 Proceedings for the
15 United States District Courts (“The district court must
16 issue or deny a [COA] when it enters a final order
17 adverse to the applicant.”).
18

A “[COA] may issue . . . only if the applicant has

19 made a substantial showing of the denial of a
20 constitutional right.”

28 U.S.C. § 2253(c)(2).

To

21 satisfy the showing required by paragraph (c)(2), the
22 petitioner must show that reasonable jurists could
23 debate whether the petition should have been resolved
24 differently or that the issues presented are “adequate
25 to deserve encouragement to proceed further.”
26 McDaniel, 529 U.S. 473, 483-84 (2000).
27 / / /
28 / / /
41

Slack v.

1
2

b.

Analysis

Here, Petitioner fails to make a substantial

3 showing of the denial of a constitutional right because
4 his claims are either procedurally barred, are not
5 cognizable under § 2255 or fail entirely on the merits.
6 Petitioner’s claim that several of his arguments raise
7 novel issues of law is also without merit.

Reasonable

8 jurists could not debate that Petitioner’s § 2255
9 Motion should have been resolved differently or that
10 the issues presented deserve further proceedings.
11 Therefore, the Court DENIES a COA.
12
13

III. CONCLUSION
Based on the foregoing analysis, the Court DENIES

14 Petitioner’s § 2255 Motion and DENIES a Certificate of
15 Appealability.
16
17 IT IS SO ORDERED.
18
19 DATED: October 8, 2015

S/ RONALD S.W. LEW

20

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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22
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25
26
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28
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