Antoine Lamont Johnson v. United States of America

Filing 46

ORDER re: Petitioner's AMENDED MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 by Judge Ronald S.W. Lew: For the foregoing reasons, the Court DENIES Petitioners § 2255 Motion. The Court further DENIES Petitioners request for an evidentiary hearing, and DENIES Petitioners request for a certificate of appealability. 11 (yl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 ANTOINE LAMONT JOHNSON,
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Petitioner,

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v.
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16 UNITED STATES OF AMERICA,
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Respondent.

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CR-05-920-RSWL-1
CV-16-3419-RSWL
ORDER re: Petitioner’s
AMENDED MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER
28 U.S.C. § 2255 [CV 11]
[CR 2086]

18
On August 13, 2010, Petitioner Antoine Lamont
19
Johnson (“Petitioner”) was sentenced to life in federal
20
prison, consisting of 240 months on one count of
21
conspiracy to commit Hobbs Act robbery; 240 months on
22
one count of Hobbs Act robbery, in violation of 18
23
U.S.C. § 1951; and a life sentence for using, carrying,
24
brandishing, and discharging a firearm during a crime
25
of violence causing death under 18 U.S.C. §§
26
924(c)(1)(A)(iii), (j)(1).

Pet’r’s J & Commitment

27
Order [CR 1657].
28
1

1

Currently before the Court is Petitioner’s Amended

2 Motion to Vacate, Set Aside, or Correct Sentence Under
3 28 U.S.C. § 2255 (“Motion”) [CV 11] [CR 2086].
4 Petitioner asks the Court to strike the life sentence
5 associated with his § 924(c) conviction, and vacate his
6 underlying convictions due to ineffective
7 representation provided by his trial counsel.

See

8 generally Pet’r’s. Am. Mot. To Vacate, Set Aside, or
9 Correct Sent. (“Mot.”), ECF No. CR-2086, CV-11.

Having

10 reviewed all papers submitted pertaining to this
11 Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the
12 Court DENIES Petitioner’s § 2255 Motion.

The Court

13 also DENIES Petitioner’s request for an evidentiary
14 hearing, and DENIES Petitioner’s request for a
15 Certificate of Appealability.
I. BACKGROUND

16
17 A.

Factual Background

18

1.

19

On or about February 27, 2004, Petitioner and co-

Underlying Offense Conduct

20 Defendants Michael Williams, Patrick Holifield, and
21 Larry Jordan (“co-Defendants”), all members of the
22 Eight Trey Hoover Criminals street gang (the
23 “Hoovers”), conspired to rob an Armored Transport
24 Systems (“AT Systems”) truck at the Bank of America,
25 located at 8701 South Western Avenue in Los Angeles.
26 Mot. Ex. A, First Superseding Indict. (“Indict.”) 3:1627 22, ECF No. CR-2086-1, CV-11-1.
28

On March 1, 2004, co-Defendant Jordan drove his van
2

1 to the parking lot of the Superior Market near the bank
2 while Petitioner and the others parked a stolen gray
3 sedan in the bank parking lot.

Id. at 4:1-13.

4 Petitioner and co-Defendants Williams and Holifield
5 were each wearing latex gloves, and Petitioner wore a
6 Rastafarian wig with a Jamaican-colored cap and
7 shoulder-length dread locks (“the Rastafarian wig”).
8 Johnson Revised Presentence Report (“PSR”) ¶ 18, ECF
9 No. CR-1641.
10

Petitioner, armed with a 9mm “MAC”-style handgun

11 and wearing latex gloves and the Rastafarian wig; co12 Defendant Williams, armed with an AK47-type rifle and
13 also wearing latex gloves; and the other co-Defendants,
14 approached an AT Systems armored truck outside the
15 bank.

Id. at ¶¶ 17-18; Indict. at 4:14-18.

Together

16 they fired fifty-two rounds of ammunition at the guard,
17 the truck, and the exterior of the bank while stealing
18 multiple bags of money worth $436,000.
19 4:19-5:2.

Indict. at

Petitioner and co-Defendants shot and killed

20 guard Evelio Suarez, Jr. (“Suarez”) as he was unloading
21 bags from the truck.
22

Id. at 4:23-24, 7:19-22.

After shooting and killing Suarez, Petitioner and

23 co-Defendants fled on foot towards the getaway van.
24 PSR ¶ 20.

The van stalled, so Petitioner and co-

25 Defendants jumped out and ran towards the Superior
26 Market parking lot to the second getaway van.

Id.

27 While running, Petitioner dropped the Rastafarian Wig,
28 co-Defendant Williams dropped his latex gloves and an
3

1 empty AK47 ammunition magazine, and another co2 Defendant dropped latex gloves.

Id. ¶ 21.

Petitioner

3 did not make it to the second getaway van, which left
4 with co-Defendant Williams and the others, but managed
5 to escape by other means.

Id. ¶ 22.

6

2.

Burgess Testimony

7

After the robbery, law enforcement went public with

8 a surveillance video of the getaway van used in the
9 robbery and offered a $175,000 reward for apprehension
10 of the robbers.

Pl.’s Opp’n to Pet’r’s Am. Mot. To

11 Vacate, Set Aside, or Correct Sent. (“Opp’n”) 46:17-23,
12 ECF No. CR-2116, CV-38.

Two weeks later, in May of

13 2004, Veronica Burgess (“Burgess”) contacted law
14 enforcement stating that she had information.

Id.

15 Burgess met with law enforcement several times and
16 cooperated with them during a five-year period prior to
17 the trial.

Id. at 47:1-17; Opp’n, Ex. E Decl. of

18 Joseph O’Donnell (“O’Donnell Decl.”) ¶¶ 2-3, ECF No.
19 CR-2116-5, CV-38-5.

Burgess told police that during

20 the week prior to the robbery, she overheard a
21 discussion among a group of men, including Petitioner,
22 planning the robbery while at a local restaurant,
23 Fannie Mae’s.

Opp’n at 47:1-8; Opp’n, Ex. E Decl. of

24 Daniel Jaramillo (“Jaramillo Decl.”) ¶ 3.c, ECF No. CR
25 2116-5, CV-38-5.
26 the grand jury.
27

Burgess testified to the same before
Opp’n at 47:4-8.

In August of 2007, the Court ordered that the

28 identities of certain witnesses, including Burgess, be
4

1 disclosed to Petitioner and co-Defendant Williams
2 forty-five days before trial.
3 1712.

See ECF No. CR-1711,

With a trial date of September 15, 2009, the

4 date on which Burgess’s identity would be disclosed was
5 August 2, 2009.

On August 3, 2009, Burgess called law

6 enforcement and informed them that “her name had been
7 given to the ‘Hoovers’ and she had been receiving death
8 threats.”

O’Donnell Decl. ¶ 8.

The Government was

9 subsequently unable to locate Burgess to have her
10 testify at trial.

The Government amassed evidence that

11 Petitioner caused the threats to be made against
12 Burgess, and moved in limine to introduce her prior
13 statements and identifications of Petitioner against
14 Petitioner.

See ECF No. CR-1392.

The Court found that

15 the Government met its burden to establish that
16 Petitioner procured Burgess’s unavailability, and
17 therefore granted the Government’s Motion to Admit the
18 Burgess Evidence.
19

See ECF No. CR-1460.

At trial, the Government called four witnesses to

20 testify about Burgess’s prior identifications of
21 Petitioner as being at the planning meeting at Fannie
22 Mae’s restaurant, including her testimony before the
23 grand jury.

Opp’n at 57:17-20.

The Government

24 elicited testimony that Burgess went to the restaurant
25 to have breakfast with her friend, Reshanna Russell,
26 between Wednesday and Friday during the week prior to
27 the robbery and that while there, she overheard the
28 conversation of a group of men, including Petitioner,
5

1 talking about an armed robbery.
2

Id. at 57:20-26.

While defense counsel vigorously cross-examined

3 Burgess and called their own witnesses to impeach her
4 testimony, the jury was not informed that after
5 Burgess’s identity was disclosed to Petitioner and she
6 learned she would be expected to testify at trial, she
7 recanted her statements.

Specifically, on August 4,

8 2009, Burgess was contacted by the defense attorney and
9 investigator, and on August 5, 2004, Burgess told them
10 that the initial statements she made to law enforcement
11 and testimony to the grand jury about observing
12 Petitioner at a planning meeting were false; that the
13 police had employed suggestive interview techniques
14 that induced her to make false pre-trial
15 identifications; and that she was motivated by the
16 substantial reward money she believed she could receive
17 for providing information.

Mot. at 33:14-23; see

18 generally Mot. Ex. E Decl. of Christian S. Filipiak
19 (“Filipiak Decl.”), ECF No. CR-2086-6, CV-11-6.
20

Petitioner contends that his trial counsel were

21 ineffective in opposing the Government’s Motion to
22 Admit the Burgess Evidence, and that the hearsay
23 statements made by Burgess implicating Petitioner
24 should have never been presented to the jury in the
25 first place.

Mot. at 34:34:17-44:21.

Petitioner

26 further argues that since the Burgess evidence was
27 admitted at trial, his trial counsel were ineffective
28 for not introducing evidence that Burgess later
6

1 recanted her statements about witnessing a planning
2 meeting involving Petitioner.

Id. at 44:22-46:5.

3

3.

Jamal Dunagan Testimony

4

At trial, the Government called Jamal Dunagan

5 (“Dunagan”), a fellow Hoover gang member.
6 55:7-9; Opp’n at 72:25-73:5.

See Mot. at

Dunagan testified that he

7 had been contacted by the suspected organizer of the
8 armored truck robbery to reach out to Petitioner, who
9 was refusing to return phone calls and meet with the
10 other members of the robbery.

See Opp’n Ex. D Gov.’s

11 Answering Br. on Appeal, 2013 WL 3790841 at *42-44
12 (citing GER 1217-1218, 1399-1400, 1414). 1

According to

13 Dunagan, he met with Petitioner in the Los Angeles area
14 twice on March 2, 2004, the day after the armored truck
15 robbery.

Opp’n Ex. D, at *44-46 (citing GER 1217,

16 1412-1414).

Dunagan testified that during the

17 meetings, Petitioner confessed to his participation in
18 the robbery.

Id.

Dunagan also testified that during

19 the meetings, he saw that Petitioner had his foot
20 wrapped, and that Petitioner told him he had discharged
21 his “MAC” and shot himself while running away from the
22 scene of the crime.
23

Id.

Petitioner claims that evidence available at trial,

24 but uncovered during the habeas investigation, would
25
26
27
28

1

The Government attaches as Exhibit D to its Opposition,
its Answering Brief on Appeal to the Ninth Circuit, which in turn
cites to Government’s Excerpts of the Record (“GER”) PACER No.
10-50401, ECF No. 50. The Court has reviewed each of the
excerpts cited in connection with this Motion.
7

1 have shown that on March 2, 2004, Petitioner was not
2 present in Los Angeles and therefore, could not have
3 attended the meetings with Dunagan.

Mot. at 56:22-25.

4 Specifically, Petitioner alleges that the testimony of
5 Petitioner’s sister, Chetarah Sims, and phone records
6 would have shown that on the evening of March 1, 2004,
7 Petitioner left on a Greyhound bus in the direction of
8 Memphis, Tennessee to visit his grandmother.

Id. at

9 56:26-58:20; Pet’r’s Reply ISO Pet’r’s Am. Mot. To
10 Vacate, Set Aside, or Correct Sent. (“Reply”) 71:9-14,
11 ECF No. CR-2121, CV-42, 45.

Petitioner argues that his

12 trial counsel were ineffective for failing to introduce
13 this evidence, which would have impeached Dunagan’s
14 testimony.

Reply at 70:13-76:19.

15 B.

Procedural Background

16

In February 2007, a grand jury indicted Petitioner

17 and co-Defendants on: (1) conspiracy to commit Hobbs
18 Act robbery, (2) committing Hobbs Act robbery, and (3)
19 using, brandishing, and discharging a firearm during
20 and in relation to a crime of violence in violation of
21 18 U.S.C. § 924(c) which caused the murder of Suarez.
22 The case proceeded to trial in early 2010.

Petitioner

23 and co-Defendant Williams were tried together.

On

24 March 11, 2010, a jury returned a verdict finding
25 Petitioner and co-Defendant Williams guilty of all
26 three counts charged in the indictment.
27 19.

Mot. at 5:15-

Petitioner was sentenced to 240 months each for

28 the first two counts and life for the third, all to be
8

1 served consecutively.
2

Id. at 5:20-22.

Petitioner appealed, and the Ninth Circuit affirmed

3 his convictions on September 12, 2014.

See United

4 States v. Johnson, 767 F.3d 815 (9th Cir. 2014).
5 Petitioner’s petition for a writ of certiorari to the
6 United States Supreme Court was denied on December 14,
7 2015.
8

Petitioner filed a § 2255 Motion on May 18, 2016

9 [CV 1] [CR 2021].

On July 6, 2016, the Court set a

10 briefing schedule for litigating the § 2255 Motion.
11 [CV 7] [CR 2034].

On December 9, 2016, Petitioner

12 filed his Amended § 2255 Motion [CV 11] [CR 2086].

The

13 Court subsequently granted several stipulations by the
14 parties to modify the briefing schedule, as well as
15 three ex parte applications by the Government
16 requesting an extension of time to file an Opposition,
17 and one ex parte application by Petitioner requesting
18 an extension of time to file his Reply.

The Government

19 filed its Response to Petitioner’s Motion
20 (“Opposition”) on September 11, 2018 [CV 38] [CR 2116].
21 Petitioner filed his Reply on January 11, 2019 [CV 42,
22 45] [CR 2121].
II.

23

DISCUSSION

24 A.

Legal Standard

25

1.

26

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

§ 2255 Motion

27 may make a motion to vacate, set aside or correct his
28 sentence on the ground that the sentence was imposed in
9

1 violation of the Constitution or laws of the United
2 States, or that the court was without jurisdiction to
3 impose such sentence, or that the sentence was in
4 excess of the maximum authorized by law, or is
5 otherwise subject to collateral attack.

28 U.S.C. §

6 2255(a).
7

The remedy under § 2255 does not encompass all

8 claimed errors in conviction and sentencing.

United

9 States v. Addonizio, 442 U.S. 178, 185 (1979); United
10 States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981)
11 (“Errors of law which might require reversal of a
12 conviction or sentence on appeal do not necessarily
13 provide a basis for relief under § 2255.”)

A mere

14 error of law does not provide a basis for collateral
15 relief under § 2255 unless the claimed error
16 constituted “a fundamental defect which inherently
17 results in a complete miscarriage of justice” and
18 renders the entire proceeding “irregular and invalid.”
19 Addonizio, 442 U.S. at 185-86; Hill v. United States,
20 368 U.S. 424, 428 (1962).
21

Further, “the Court has cautioned that § 2255 may

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

United

23 States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010);
24 United States v. Johnson, 988 F.2d 941, 945 (9th Cir.
25 1993) (“Section 2255 . . . is not designed to provide
26 criminal defendants multiple opportunities to challenge
27 their sentence.”).

A matter that has been decided

28 adversely on appeal from a conviction cannot be
10

1 relitigated on a § 2255 motion absent changed
2 circumstances of law or fact.

Odom v. United States,

3 455 F.2d 159, 160 (9th Cir. 1972).

Similarly,

4 “[h]abeas relief is an extraordinary remedy and will
5 not be allowed to do service for an appeal.”

Bousley

6 v. United States, 523 U.S. 614, 621 (1998) (quoting
7 Reed v. Farley, 512 U.S. 339, 354 (1994)) (internal
8 quotation marks omitted).
9
10

2.

Ineffective Assistance of Counsel

To prevail on a claim for ineffective assistance of

11 counsel, a defendant must satisfy the two prong test
12 set forth in Strickland v. Washington, 466 U.S. 668,
13 687-90, 694 (1984).

A defendant must establish (1)

14 that his trial counsel’s performance was
15 constitutionally deficient, and (2) that the deficient
16 performance prejudiced the defense.

Id.

To meet the

17 deficient performance prong, defendant must show that
18 counsel’s performance fell below an objective standard
19 of reasonableness.

Id.

In evaluating trial counsel’s

20 performance, “a court must indulge a strong presumption
21 that counsel’s conduct falls within the wide range of
22 reasonable professional assistance; that is, the
23 defendant must overcome the presumption that, under the
24 circumstances, the challenged action ‘might be
25 considered sound trial strategy.’”
26 (quotations omitted).

Id. at 689

To establish prejudice, a

27 defendant must show “a reasonable probability that, but
28 for counsel’s unprofessional errors, the result of the
11

1 proceeding would have been different.

A reasonable

2 probability is a probability sufficient to undermine
3 confidence in the outcome.”

Id. at 694.

Ultimately,

4 “[s]urmounting [Strickland’s] high bar is never an easy
5 task.”

Runningeagle v. Ryan, 686 F.3d 758, 775 (9th

6 Cir. 2012) (internal quotations omitted).
7 B.

Validity of § 18 U.S.C. 924(c) Conviction

8

18 U.S.C. § 924(c) penalizes use of a deadly or

9 dangerous weapon during a “crime of violence.”

In

10 turn, §§ 924(c)(3)(A)-(B) define “crime of violence.”
11 Section 924(c)(3)(A) contains the “Force Clause”: “[a
12 crime of violence is an offense that is a felony and
13 that] has as an element the use, attempted use, or
14 threatened use of physical force against the person or
15 property of another.”

Section 924(c)(3)(B), the

16 “Residual Clause,” defines a crime of violence as: “[an
17 offense that is a felony and] that by its nature,
18 involves a substantial risk that physical force against
19 the person or property of another may be used in
20 committing the offense.”
21

Petitioner seeks to vacate his § 924(c) conviction

22 on the grounds that: (1) it may have been based on the
23 conspiracy charge, which is not a “crime of violence;”
24 and (2) Hobbs Act robbery fails to qualify as a “crime
25 of violence” under the Force Clause.

Mot. at 7:1-7.

26 The Court addresses each argument in turn.
27 ///
28 ///
12

1

1.

§ 924(c) Conviction Was Based on the

2
3

Substantive Hobbs Act Robbery
“A conviction based on a general verdict is subject

4 to challenge if the jury was instructed on alternative
5 theories of guilt and may have relied on an invalid
6 one.”

Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008).

In

7 such instances, harmless-error analysis applies and a
8 reviewing court “should ask whether the flaw in the
9 instructions ‘had a substantial and injurious effect or
10 influence in determining the jury’s verdict.’”

Id.

11 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
12 (1993)).

This question requires courts to consider

13 “the record as a whole” and “‘take account of what the
14 error meant to [the jury], not singled out and standing
15 alone, but in relation to all else that happened.’”
16 Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010)
17 (quoting Kotteakos v. United States, 328 U.S. 750, 765
18 (1946)).

Ultimately, “[t]here must be more than a

19 reasonable possibility that the error was harmful . . .
20 . [b]ut where a judge in a habeas proceeding is in
21 grave doubt as to the harmlessness of the error, the
22 habeas petitioner must win.”

Rogers v. McDaniel, 793

23 F.3d 1036, 1042 (9th Cir. 2015) (internal quotations
24 and citations omitted).
25

Here, the jury instructions indicated that the

26 Government could prove the § 924(c) charge by showing
27 Petitioner (1) committed the crime [Hobbs Act robbery];
28 or (2) was part of the Hobbs Act conspiracy.
13

Mot. Ex.

1 D-1, Jury Instrs. Nos. 18, 19, ECF No. CR-2086-4, CV2 11-4.

Petitioner takes issue with these instructions,

3 insisting that Hobbs Act conspiracy is not a crime of
4 violence under § 924(c) and is thus an invalid
5 predicate upon which a § 924(c) conviction can be
6 based.

It is undisputed that Hobbs Act conspiracy is

7 only a crime of violence if it satisfies the Residual
8 Clause.

However, after the Supreme Court’s recent

9 decisions in Johnson v. Untied States, 135 S. Ct. 2551
10 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018),
11 circuit courts are split on the issue of whether the
12 Residual Clause is unconstitutionally vague.

The issue

13 is currently pending before the Ninth Circuit and the
14 Supreme Court.2

However, the Court need not await the

15 decisions of the Supreme Court or Ninth Circuit to
16 address Petitioner’s claims because the record reveals
17 that the jury based its conviction on the substantive
18 Hobbs Act robbery, and not the conspiracy.
19 Accordingly, even assuming that Hobbs Act conspiracy is
20 an invalid predicate, any error in the jury
21 instructions was harmless since it did not have a
22
23
24
25
26
27

2

The Supreme Court granted certiorari in United States v.
Davis, 903 F.3d 483 (5th Cir. 2018) (per curiam) cert. granted,
2019 WL 98544 (Jan. 4, 2019), to decide “whether the subsectionspecific definition of ‘crime of violence’ in 18 U.S.C. §
924(c)(3)(B) . . . is unconstitutionally vague.” While the Ninth
Circuit has yet to weigh in, it recently requested supplemental
briefing on the issue in United States v. Begay, No. 14-10080,
Docket No. 107, and stayed proceedings pending the disposition of
Davis.

28
14

1 substantial and injurious effect in determining the
2 jury’s verdict.
3

Petitioner was convicted of all three counts

4 charged: (1) conspiracy to commit Hobbs Act robbery,
5 (2) Hobbs Act robbery, and (3) the § 924(c) count.
6 Mot. Ex. B, ECF No. CR-2086-2, CV-11-2.

The conspiracy

7 was inextricably intertwined with, and in furtherance
8 of, the substantive Hobbs Act robbery.

As this Court

9 previously determined with respect to co-Defendant
10 Williams, since the jury convicted Petitioner of the
11 Hobbs Act robbery, “it makes little sense that
12 Petitioner could have only discharged a firearm in the
13 conspiracy but not the substantive Hobbs Act robbery.”
14 Order re Williams’ Am. Mot. To Vacate, Set Aside, or
15 Correct Sent. (“Williams’ Order”) 15:24-16:2, No. 1616 2569-RSWL, ECF No. 22.

This is especially so in light

17 of the fact that no evidence was produced at trial
18 suggesting that firearms were used in the conspiracy,
19 but not in the substantive offense.
20

Nonetheless, Petitioner argues that based on the

21 jury instructions, it is possible that the jury’s
22 finding of Petitioner’s guilt on the conspiracy count
23 could have led to his convictions on the robbery and
24 gun counts.3

Mot. at 12.

Petitioner contends that the

25
26
27
28

3

The jury instructions for the substantive Hobbs Act
robbery allowed the jury to convict Petitioner based on him
“being part of a conspiracy as charged in Count One, during or in
furtherance on which the reasonably-foreseeable crime of robbery
affecting interstate commerce was committed.” Mot. Ex. D-1, Jury
15

1 primary evidence at trial of his involvement in the
2 conspiracy was the testimony of Burgess, in which she
3 stated that she saw and overheard Petitioner at a local
4 restaurant planning the robbery with some of his co5 conspirators.

Mot. at 12:15-22.

Petitioner contends

6 that the jury could have accepted this evidence as
7 proof of Petitioner’s involvement in the Hobbs Act
8 conspiracy, and on that basis, convicted Petitioner of
9 the conspiracy, robbery, and gun charges.
10

Id.

However, Petitioner overestimates the import of the

11 Burgess testimony to the case.

The planning meeting

12 discussed by Burgess provided evidence of only one of
13 the fourteen overt acts identified by the Government,
14 in support of the conspiracy.
15 at 3:9-5:23.

See Mot. Ex. A, Indict.

While the Burgess testimony spanned in

16 excess of 150 pages of transcript, Petitioner’s cross17 examinations took up approximately 90 of the pages, and
18 in total, witness testimony at trial covered
19 approximately 2,380 transcript pages.

Opp’n at 16:10-

20 14; Decl. of Elizabeth R. Yang (“Yang Decl.”) ¶ 5, ECF
21 No. CR-2086, CV-11.

Moreover, in its closing argument,

22 the Government’s summary of the Burgess evidence
23 comprised less than 1½ pages of an approximately 1624 page argument, and followed a recitation of the
25 evidence of the substantive crime itself, which
26
Instr. No. 13.

The jury instructions for the § 924(c) count

27 similarly allowed the jury to convict Petitioner if the
Government proved that he committed the substantive robbery, or
28 was part of the conspiracy. Id. Jury Instrs. Nos. 18, 19.
16

1 provided circumstantial evidence of advanced planning
2 consistent with a conspiracy.

Opp’n at 16:21-17:3;

3 3/5/10 RT 4-20, ECF No. CR-1718.

For example, such

4 evidence included wearing disguises, using multiple
5 semi-automatic weapons, setting up two getaway vans,
6 and lying in wait (appearing to know the armored
7 truck’s route and schedule) to commit the robbery.
8 Opp’n at 17 n. 11; 3/5/10 RT 7.
9

Moreover, an examination of the record as a whole

10 reveals that the jury rested its conviction on the
11 Hobbs Act robbery.

See Pulido, 629 F.3d at 1019 (“[W]e

12 consider whether the evidence in the trial record made
13 it likely that the instructional errors had a
14 substantial and injurious effect on the verdict.”).

At

15 trial, the Government put forth substantial evidence of
16 Petitioner’s involvement in the Hobbs Act robbery.
17 stated by the Ninth Circuit:
18
19
20
21
22
23
24
25

The evidence at trial incriminating both
Johnson and Williams was strong.
Jamal
Dunagan, former Hoover gang member [of which
Petitioner was affiliated], testified that both
Johnson and Williams had confessed to having
participated in the robbery-murder.
He also
testified that Derrick Maddox, an uncharged coconspirator, had given him a detailed account
of the robbery and subsequent shootout,
including the extent of Johnson and Williams’
involvement.
In addition, the Government
introduced evidence that DNA recovered from a
wig and latex gloves that were found on the
scene matched the DNA profiles of Johnson and
Williams respectively.

26
27
28
17

As

1 Johnson, 767 F.3d at 820.4

That the § 924(c) conviction

2 was predicated on the substantive robbery is further
3 illustrated by the Court’s instructions to the jury, in
4 which the Court identified the substantive robbery as
5 the predicate crime of violence for the § 924(c) count.
6 Opp’n at 15:7-15 (citing 3/5/10 RT 175-77) (“a crime of
7 violence, robbery”) (“the crime of robbery . . . which
8 I instruct you is a crime of violence”).).

This

9 instruction mirrored the language of the indictment,
10 which identified the predicate crime of violence for
11 the § 924(c) count as “the March 1, 2004, robbery of an
12 Armored Transport Systems armored truck.”
13 Indict. at 7.

Mot. Ex. A,

See Ortega v. United States, No. 16-cv-

14 1622-GPC, 2017 WL 6371739, at *4 (S.D. Cal. Dec. 13,
15 2017) (looking to the “plain language of the
16 superseding indictment” to find that the § 924(c)
17 conviction rested on a valid predicate).

The

18 Government also identified the predicate crime of
19 violence for the § 924(c) count as “the armored truck
20 robbery” and not the conspiracy in its closing argument
21 to the jury.
22

Opp’n at 14:21-29 (citing 3/5/10 RT 10).

Petitioner contends that the Government

23 mischaracterizes the Court’s instructions to the jury
24 and the Government’s closing argument, because in both
25
26

4

This list only illuminates some of the evidence from which
The Court notes that trial
in this case lasted approximately four weeks and involved over 60
witnesses and 250 exhibits.
18

27 the jury may have based its decision.
28

1 situations, the jury was repeatedly told that they
2 could find Petitioner guilty of the robbery and gun
3 charges if they found Petitioner guilty of the
4 conspiracy charge.

Reply at 15:1-19.

The Court does

5 not dispute that the jury was so informed.

However, as

6 discussed above, the only evidence of Petitioner’s
7 involvement in the conspiracy—apart from the
8 circumstantial evidence of advanced planning evident
9 from the substantive robbery itself—was the Burgess
10 testimony.

Yet at trial, Petitioner elicited

11 substantial evidence impeaching Burgess as a witness. 5
12 To assume that the jury adopted the shaky Burgess
13 testimony as the basis for its convictions, and ignored
14 the “strong” evidence incriminating Petitioner in the
15 underlying robbery, would be a stretch beyond the
16 bounds of rationality.
17

In sum, the Court finds that to the extent that

18 Hobbs Act conspiracy is an invalid predicate for a §
19 924(c) conviction, the jury instruction allowing the
20 jury to convict Petitioner of his § 924(c) count by a
21 finding of guilt as to his conspiracy or robbery counts
22 was harmless error.
23

2.

Hobbs Act Robbery is a Crime of Violence

24

Petitioner contends that even if his § 924(c)

25 conviction was predicated on substantive Hobbs Act
26
27
28

5

A full discussion of the evidence impeaching Burgess
appears in the Court’s discussion of Petitioner’s claim of
ineffective assistance of counsel.
19

1 robbery, substantive Hobbs Act robbery is not a crime
2 of violence under the Force Clause of § 924(c). 6
3 Petitioner supports his position with two primary
4 arguments: (1) the Force Clause of § 924(c) is only
5 satisfied by proof of intentional violent physical
6 force but Hobbs Act robbery can be violated without
7 proof of such force; and (2) the Hobbs Act definition
8 of fear of injury does not always constitute an active
9 threatened use of force on the person as required by
10 the Force Clause.

Mot. at 13:9-22:9.

Similar

11 arguments were previously raised by co-Defendant
12 Williams in his § 2255 motion, and this Court provided
13 detailed reasoning as to why they lack merit.
14 Williams’ Order at 17:14-22:14.

See

Nonetheless,

15 Petitioner asserts that this Court relied on flawed
16 analysis in its Williams Order, and argues that the
17 cases cited by this Court are insufficient to support
18 the conclusion that Hobbs Act robbery is a crime of
19 violence.

Mot. at 17:23-22:3.

However, both prior to

20 and after this Court’s Williams’ Order, the Ninth
21 Circuit (albeit in an unpublished decision), sister
22
6

This issue is also the subject of co-Defendant Williams’

23 appeal to the Ninth Circuit. See United States v. Williams, No.
24 05-cr-00920, ECF No. 2091. The Ninth Circuit granted Williams’
25
26
27
28

request for a certificate of appealability on the following
issues: (1) whether Williams’ conviction under § 924(c) must be
vacated in light of Johnson v. United States; and (2) whether the
Hobbs Act robbery is a “crime of violence” under the Force Clause
(§ 924(c)(3)(A)). Id. The Ninth Circuit held the case in
abeyance pending its decision in United States v. Begay, No.
14010080, which was continued pending the Supreme Court’s final
resolution in United States v. Davis, 2019 WL 98544.
20

1 circuits, and district courts have uniformly held that
2 Hobbs Act robbery constitutes a crime of violence under
3 the Force Clause.

See e.g. U.S.A. v. Dorsey, No.14-cr-

4 00328(B)-CAS, 2017 WL 3159981, at *12 (C.D. Cal. July
5 24, 2017) (citing cases from the Ninth, Seventh,
6 Second, Eleventh, and Fifth Circuits to support its
7 finding that “there is an ‘unbroken consensus’ among
8 the courts across the country that a Hobbs Act robbery
9 constitutes a crime of violence”); United States v.
10 Figueroa, No. 12cr236-GPC, 2017 WL 3412526, at *8 (S.D.
11 Cal. Aug. 9, 2017) (“[T]he Second, Third, Fifth,
12 Eighth, and Eleventh Circuits agree that Hobbs Act
13 robbery is categorically a crime of violence under the
14 physical force clause.”); United States v. Hall, No.
15 12-cr-00132-JAD-CWH-3, 2017 WL 2174951, at *2 (D. Nev.
16 May 17, 2017) (“District courts and other circuit
17 courts . . . overwhelmingly agree that Hobbs Act
18 robbery qualifies as a crime of violence under §
19 924(c)’s force clause.”); United States v. Elima, SACR
20 16-00037-CJC, 2016 WL 3556603, at *1 (C.D. Cal. June 6,
21 2016) (citations omitted) (stating that the argument
22 that Hobbs Act robbery is not a crime of violence “has
23 been ‘squarely rejected by district courts
24 nationwide’”).
25

The Force Clause defines a “crime of violence” as a

26 felony that “has as an element the use, attempted use,
27 or threatened use of physical force against the person
28 or property of another.”

18 U.S.C. § 924(c)(3)(A).
21

To

1 determine whether Hobbs Act robbery satisfies this
2 definition, the Court applies the categorical approach
3 announced by the Supreme Court in Taylor v. United
4 States, 495 U.S. 575, 600 (1990).

“Under this

5 approach, we do not look to the particular facts
6 underlying the conviction, but ‘compare the elements of
7 the statute forming the basis of the defendant’s
8 conviction with the elements of’ a ‘crime of
9 violence.’”

United States v. Benally, 843 F.3d 350,

10 352 (9th Cir. 2016) (quoting Descamps v. United States,
11 133 S. Ct. 2276, 2281 (2013)).

As set forth in the

12 jury instructions, the elements for Hobbs Act robbery,
13 18 U.S.C. § 1951, are: “(1) defendant unlawfully took
14 or obtained property . . . against his will; (2)
15 defendant used actual or threatened force, or violence,
16 or fear of injury, immediate or future, to the person;
17 (3) defendant intended to permanently deprive the
18 person of the property; (4) as a result, interstate
19 commerce was obstructed, delayed, or affected.”

Mot.

20 Ex. D-1, Jury Instr. No. 13.
21

Petitioner first argues that Hobbs Act robbery can

22 be violated without proof of intentional violent force;
23 that is through negligent or reckless conduct—as
24 opposed to intentional conduct—and through the use of
25 minimal—as opposed to violent—force.

In support of his

26 argument, Petitioner analogizes Hobbs Act robbery to
27 common law robbery and draws on judicial
28 interpretations of similar statutes.
22

Notably, however,

1 Petitioner fails to cite any case where a court has
2 found Hobbs Act robbery can be committed without intent
3 or with only minimal force.7

Yet, in order to prevail

4 under a categorical approach, Petitioner must at least
5 show a “realistic probably” that the Hobbs Act statute
6 could apply to non-violent, unintentional conduct.

See

7 Moncrieffe v. Holder, 559 U.S. 184, 191 (2013)
8 (“[T]here must be a ‘realistic probability, not a
9 theoretical possibility, that the State would apply its
10 statute to conduct that falls outside the generic
11 definition of a crime.’”).

Because Petitioner has

12 failed to satisfy this burden, the Court maintains its
13 position as set forth in William’s Order, and agrees
14 with the long list of courts who have rejected the
15 argument that Hobbs Act robbery can be committed
16 through reckless or negligent conduct, or with only
17 minimal force.8
18
19

7

Of course, Petitioner cannot support his assertion with

20 his own case, since 52 rounds of ammunition were discharged from
multiple firearms during the underlying robbery.

21
8

See e.g. United States v. Goldsby, 2018 WL 1146401, at *2

22 (D. Nev. Feb. 22, 2018) (emphasis added) (“Every case cited by
23 the Government and independently researched by the Court has
24
25
26
27
28

found that a Hobbs act robbery requires the intentional use,
attempted use, or threatened use of violent force.”); United
States v. Mendoza, 2:16-cr-00324-LRH-GWF, 2017 WL 2200912, at *9
(D. Nev. May 19, 2017) (“Hobbs Act robbery requires a defendant
to intentionally use, attempt to use, or threaten to use
[violent] force.”); Hall, 2017 WL 2174951, at *3 (“As to whether
one can commit Hobbs Act robbery with too little force to qualify
as the sort of violent force contemplated by § 924(c), I agree
with the weight of authority that finds this argument ‘wholly
unavailing.’”).
23

1

Petitioner next argues that Hobbs Act robbery is

2 not a crime of violence because it can be violated by
3 non-violent fear of injury to property.

This precise

4 argument was discussed and rejected by the Ninth
5 Circuit in United States v. Howard, 650 Fed. Appx. 466,
6 468 (9th Cir. May 23, 2016), which concluded that Hobbs
7 Act robbery is a crime of violence. 9

Undeterred,

8 Petitioner highlights three scenarios which he claims
9 are possible from the language of the Hobbs Act: (1)
10 injury to property may be accomplished without threat
11 of violent force; (2) fear of future injury is contrary
12 to the required need for an active violent crime; and
13 (3) threatened force includes implied threats of force
14 that is contrary to a present willingness to use force.
15 Reply at 34:15-23.
16

In support of the first scenario, Petitioner cites

17 jury instructions from two district of Nevada cases and
18 one district of Texas case.

See United States v.

19 Brown, No. 11-CR-334-APG, Dkt. 197 (D. Nev. July 28,
20 2015); United States v. Nguyen, No. 03-cr 158-KJD-PAL,
21
22
23
24
25
26
27
28

9

Petitioner takes issue with the Ninth Circuit’s decision
in Howard arguing that it relied on “an outdated decision,”
United States v. Selfa, 918 F.2d 749 (9th Cir. 1990). Mot. at
19:20-23. However, the cases which Petitioner claims render
Selfa outdated were decided well before the Ninth Circuit’s
decision in Howard. Without a showing that Howard has been
effectively overruled, it remains good law and the Court finds
its reasoning persuasive. See e.g. United States v. Esteban, Cr.
No. 02-00540 SOM, 2017 WL 49693239, at *7 (D. Haw. Oct. 31, 2017)
(citing Howard for the proposition that Hobbs Act robbery is a
crime of violence, and recognizing that “[t]he Ninth Circuit has
broadly reaffirmed [Selfa] as recently as this year.”).
24

1 Dkt. 157 (D. Nev. Feb. 10, 2005); and United States v.
2 Hayes, No. 95-141-D (N.D. Tex. 1995).

The court in

3 each case provided an instruction effectively
4 indicating that the “fear of injury” requirement of the
5 Hobbs Act can be shown through fear that another will
6 cause economic harm.

Petitioner then cites United

7 States v. Camp, 903 F.3d 594, 602 (6th Cir. 2018) for
8 the proposition that “threats to property alone —
9 whether immediate or future — do not necessarily create
10 a danger to the person.”

However, the Sixth Circuit in

11 Camp made this statement in the context of evaluating
12 whether Hobbs Act robbery qualifies as a crime of
13 violence under the career offender Sentencing
14 Guidelines, and specifically held that Hobbs Act
15 robbery constitutes a crime of violence under the Force
16 Clause of § 924(c).

Id.

Further, more recent cases

17 than those cited by Petitioner have consistently
18 concluded that “Hobbs Act robbery cannot be
19 accomplished without at least the threat of physical
20 force.”

McGriggs v. Shinn, No. EDCV 16-1757-SVW (JEM),

21 2017 WL 9477013, at *8 (C.D. Cal. Sept. 27, 2017) (“A
22 taking by ‘actual or threatened force’ or ‘violence’ or
23 ‘fear of injury’ necessarily involves at least the
24 threat to use physical force.

Other courts that have

25 considered this question . . . have also reached the
26 conclusion that ‘fear of injury’ is ‘limited to fear of
27 injury from the use of violence . . . .’”).

Finally,

28 in each case cited by Petitioner, the defendant was
25

1 convicted for participating in a robbery which did
2 involve a threat or the use of violent force.

See

3 Brown at Dkt 1 (defendant indicted for involvement in
4 an armed robbery during which she brandished a
5 firearm); Nguyen at Dkt. 232 (defendant indicted for
6 involvement in an armed robbery/homicide); Hayes at
7 Dkt. 353 (defendant convicted for violating the Hobbs
8 Act and using and carrying a firearm in furtherance
9 thereof).

Consequently, Petitioner has still failed to

10 cite a case in which the statute was actually applied
11 in the manner identified.
12

Petitioner also fails to cite any case in which

13 Hobbs Act robbery has been applied in a manner
14 consistent with the second two scenarios. 10

To the

15 contrary, the only cases addressing these arguments
16
10

Petitioner cites a Second Circuit case, United States v.

17 Santos, 449 F.3d 93 (2d Cir. 2006), to support his claim that the
18 “threat of force” requirement of the Hobbs Act can be satisfied
19
20
21
22
23
24
25
26
27
28

by implied threats (for example, alluding to a person’s
reputation). The court in Santos indicated that the reasoning of
another Second Circuit case, which held that one’s reputation
could be sufficient to instill fear as required by Hobbs Act
extortion, “can be applied to the Hobbs Act robbery context as
long as the reputation is knowingly used to instill a ‘fear of
injury.’” Id. (emphasis added). Petitioner conveniently leaves
out the requirement that the reputation must be used “knowingly
to instill a fear of injury” and the court’s subsequent
discussion that in such situations, it must consider “(1) how a
reasonable person in the victim’s position would perceive an
action . . .; (2) the perpetrators’ knowledge that a victim would
perceive such action to be part of a pattern of violence,
intimidation, or threats; and (3) the perpetrators’ intention to
‘exploit their victim’s fears.’” Id. Thus, even if a person’s
reputation were used as a means to instill fear, the context in
which the reputation would have to be used still requires proof
of a communicated willingness to use force. In other words, an
implied threat is insufficient to satisfy the Hobbs Act.
26

1 have found them unpersuasive.

See e.g. United States

2 v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017)
3 (rejecting the argument “that because an individual
4 could be convicted under the Hobbs Act for nothing more
5 than threatening some future injury to the property of
6 a person who is not present, this cannot be a crime of
7 violence”).

Thus, Petitioner fails to establish a

8 “realistic probability” that the Hobbs Act could apply
9 to such conduct.
10

Petitioner responds that the “realistic

11 probability” standard plays no role in the analysis
12 where the language of the statute indicates that it
13 will be applied in a certain manner.

Reply at 37:2-15.

14 However, the statute itself, belies Petitioner’s
15 contention.

Specifically, when read in context, “[t]he

16 requirement that the taking [of property] be from the
17 person or in his presence . . . supports the conclusion
18 that a fear of injury means a fear of physical injury,
19 which requires the threatened use of physical force.”
20 United States v. Mendoza, 2:16-cr-00324-LRH-GWF, 2017
21 WL 2200912, at *8 (D. Nev. May 19, 2017); United States
22 v. Goldsby, No. 2:16-cr-00294-JCM-VCF, 2018 WL 1146401,
23 at *2 (D. Nev. Feb. 22, 2018) (citing United States v.
24 Pena, 161 F. Supp. 3d 268, 279 (S.D.N.Y. Feb. 11,
25 2016)) (“‘The text, history, and context of the Hobbs
26 Act compel a reading of the phrase ‘fear of injury’
27 that is limited to fear of injury from the use of
28
27

1 force.’”);11 McGriggs, 2017 WL 9477013, at *8 (“Hobbs
2 Act robbery by definition requires non-consensual
3 taking.

See 18 U.S.C. § 1951.

A taking by ‘actual or

4 threatened force’ or ‘violence’ or ‘fear of injury’
5 necessarily involves at least the threat to use
6 physical force.”).

Indeed, the fact that Petitioner is

7 unable to cite to any case in which the Hobbs Act was
8 applied in the way he indicates, is further proof that
9 the language of the statute does not lend itself to
10 Petitioner’s proffered interpretation.

Cf. Mendoza,

11 2017 WL 2200912, at *7 (“It is therefore telling in
12 this case that Mendoza is unable to cite a single
13 instance from the over 70 years since the Hobbs Act’s
14 enactment in which a defendant was convicted under the
15 statute after having used or threatened to use nominal
16 force.”).
17

This Court declines to part from the consensus

18 among the courts that Hobbs Act robbery constitutes a
19 crime of violence under the Force Clause of § 924(c).
20 Thus, the Court holds that Hobbs Act robbery, a crime
21
11

Petitioner disputes the applicability of Pena for several

22 reasons, each of which the Court finds unpersuasive. Notably,
23 Pena is still relied on by many Courts for its statutory
24
25
26
27
28

construction of the Hobbs Act. See e.g. United States v. Casas,
No. 10cr3045-1, 2017 WL 1008109, at *4 (S.D. Cal. Mar. 14, 2017)
(“This Court is also persuaded by the reasoning of the district
court in Pena, and finds that the ‘fear of injury’ prong of §
1951(b)(1) does not render Hobbs Act robbery overly broad in
comparison with the definition of ‘crime of violence’ in §
924(c)(3)(A)”); United States v. Huff, No. 1:07-CR-00156-LJO,
2017 WL 3593373, at *6 (E.D. Cal. Aug. 21, 2017) (same); United
States v. Johnson, No. SACR 16-00029-CJC-5, 2016 WL 7223264, at
*4 (C.D. Cal. Dec. 12, 2016) (same).
28

1 of violence, is a sufficient predicate for the § 924(c)
2 charge.

As such, Petitioner’s conviction on this basis

3 is valid, and the Court DENIES Petitioner’s request to
4 strike his § 924(c) sentence.12
5 C.

Ineffective Assistance of Counsel Claims

6

Petitioner was represented by attorneys Amy E.

7 Jacks and Richard P. Lasting (collectively, “Trial
8 Counsel”) in his underlying criminal case.

Petitioner

9 claims that Trial Counsel provided ineffective
10 assistance in (1) opposing the Government’s Motion to
11 Admit the Burgess Testimony and countering that
12 testimony at trial, and (2) failing to present the
13 testimony of Petitioner’s sister and phone records that
14 would have purportedly impeached the testimony of
15 Dunagan.
16

1.

Burgess Evidence

17

Petitioner alleges ineffective representation in

18 that: (1) Trial Counsel erred in opposing the
19 Government’s Motion to Admit Burgess’s Testimony; and
20 (2) Trial Counsel erred in failing to introduce
21 evidence at trial that Burgess recanted her testimony
22 implicating Petitioner.

Reply at 44:1-6.

23
24
25
26
27
28

12

Petitioner argues that if the Court chooses to reverse
the life sentence on the gun count, then it should also reevaluate the consecutive sentences imposed for the conspiracy and
robbery counts because the two offenses are part of one
continuous act and the multiple punishments imposed violate
Double Jeopardy. See Reply at 39:12-43-16. Because the Court
declines to reverse the life sentence, it need not address this
argument.
29

1

a.

2
3

Opposing Government’s Motion to Admit
Burgess Testimony

Petitioner asserts that Trial Counsel made several

4 prejudicial errors in opposing the Government’s Motion
5 to Admit the Burgess Testimony: Trial Counsel revealed
6 an attorney-client confidential communication that the
7 Government used without objection to support its
8 Motion; Trial Counsel failed to argue that the
9 Government had not shown a “good-faith” effort to
10 produce Burgess at trial; and Trial Counsel failed to
11 investigate or produce evidence regarding the actual
12 source of the threat made against Burgess.

Petitioner

13 contends that but for these errors, the Court would
14 have denied the Government’s Motion to Admit the
15 Burgess testimony and her out-of-court statements would
16 not have been produced at trial.
17

Ultimately, Trial Counsel’s handling of the Burgess

18 testimony is only relevant under Strickland insofar as
19 it prejudiced the defense.

See United States v.

20 Sanchez-Cervantes, 282 F.3d 664, 672 (9th Cir. 2002)
21 (“If either prong [of the Strickland test] is not met,
22 we must dismiss the claim.”).

In other words, unless

23 Petitioner establishes “a reasonable probability that,
24 absent the errors, the factfinder would have had a
25 reasonable doubt respecting guilt,” then Trial
26 Counsel’s alleged errors are inconsequential in this
27 context.
28

Strickland, 466 U.S. at 2068-69.

As discussed in section II(B)(1) of this Order, the
30

1 Burgess evidence, while important, was not necessary to
2 this case.

Although Burgess placed Petitioner at the

3 planning meeting at Fannie Mae’s, the other evidence of
4 Petitioner’s involvement in the actual Hobbs Act
5 robbery provided circumstantial evidence of
6 Petitioner’s participation in the conspiracy sufficient
7 to support his conspiracy conviction.

Indeed, the

8 planning meeting was merely one of fourteen overt acts
9 identified by the Government in support of the
10 conspiracy.
11

See Mot. Ex. A, Indict. at 3:9-5:23.

Moreover, even as presented, the Burgess evidence

12 was shaky.

Trial Counsel spent considerable time

13 impeaching Burgess’s statements, and her credibility as
14 a witness.

Petitioner’s efforts to impeach Burgess

15 included extensively cross-examining the Government’s
16 witnesses who testified about Burgess’s out-of-court
17 statements, through which Petitioner adduced evidence
18 of law enforcement’s incomplete note-taking and report19 writing, as well as inconsistencies in Burgess’s prior
20 statements.

Such inconsistencies included: what day

21 she witnessed the planning meeting, what time she was
22 at Fannie Mae’s, what exactly she overheard, how many
23 individuals participated in the planning meeting, and
24 the identities of the participants.

See Opp’n at 58:6-

25 14 (citing GER 2011-31, 2039-52, 2054-69, 2073-75,
26 2088-99).

Moreover, Trial Counsel called three of

27 their own witnesses to impeach Burgess.

First, Trial

28 Counsel introduced into evidence a testimonial
31

1 stipulation from a detective who arrested Burgess in
2 December of 1994 for counterfeit credit card fraud.
3 Id. at 58:18-21 (citing GER 2640-41).

The testimonial

4 stipulation identified Burgess’s statements and
5 admissions in connection with the fraud.

Id.

Second,

6 Trial Counsel called Reshanna Russell, the friend
7 identified by Burgess as being with her at Fannie Mae’s
8 restaurant.

Id. at 58:21-26 (citing GER 2673-97).

9 Russell denied having ever been to Fannie Mae’s with
10 Burgess, denied witnessing any planning meeting, and
11 denied previously telling law enforcement that she had
12 been to Fannie Mae’s in late February 2004 and that she
13 had eaten at Fannie Mae’s with Burgess before.

Id.

14 Trial Counsel then called a LAUSD custodian of records
15 who confirmed Russell’s testimony that she worked every
16 day during the week of February 23, 2004, except for
17 Wednesday (February 25).
18 2702).

Id. at 58:27-59:2 (GER 2698-

In light of the substantial evidence impeaching

19 Burgess, it is highly unlikely that her out-of-court
20 testimony played a significant role in the jury’s
21 decision.
22

That Petitioner would have been convicted even

23 without the introduction of the Burgess testimony is
24 further illustrated by the Ninth Circuit’s Opinion.
25 See Johnson, 767 F.3d at 820.

Specifically, in laying

26 out the relevant facts of the case, the Ninth Circuit
27 explained that the Court instructed the jury to not
28 consider the Burgess testimony when assessing co32

1 Defendant Williams’ guilt.

Id.

Immediately after

2 making this statement, the Ninth Circuit recognized
3 that “[t]he evidence at trial incriminating both
4 Johnson and Williams was strong.”
5 added).

Id. (emphasis

The Ninth Circuit supported this assertion by

6 pointing to the following evidence: testimony from
7 Dunagan who indicated that both Petitioner and Williams
8 had confessed to having participated in the robbery9 murder; testimony from Dunagan that an uncharged co10 conspirator, Derrick Maddox, gave him a detailed
11 account of the robbery and shootout, including the
12 extent of Petitioner and Williams’ involvement; and
13 evidence that DNA recovered from a wig and latex gloves
14 that were found on the scene matched the DNA profiles
15 of Petitioner and Williams respectively.

Id.

Notably,

16 the Ninth Circuit did not include the Burgess testimony
17 in the paragraph identifying the “strong” incriminating
18 evidence.

Nor did it need to, as the fact that

19 Williams was convicted of all three counts charged even
20 without the Burgess evidence shows that the Burgess
21 evidence was not vital to the jury’s ultimate decision.
22

While it is possible that the Burgess evidence may

23 have had “some conceivable” effect on the verdict,
24 Strickland requires more.

466 U.S. at 693.

Petitioner

25 must establish “a reasonable probability,” that is, “a
26 probability sufficient to undermine confidence in the
27 outcome.”

Id. at 694.

Here, Petitioner has failed to

28 establish that absent the Burgess evidence, there is a
33

1 reasonable probability that the jury would have had a
2 reasonable doubt regarding Petitioner’s guilt on any of
3 the counts charged.13

See Guam v. Santos, 741 F.2d

4 1167, 1169 (9th Cir. 1994) (denying a claim for
5 ineffective assistance of counsel because “the errors,
6 if any, occurred, were harmless in light of the
7 overwhelming evidence of guilt”).14
8
9

b.

Burgess’s Recantation Evidence

Given that the Burgess evidence was produced at

10 trial, the next issue raised by Petitioner is whether
11 Trial Counsel was deficient in failing to introduce
12 evidence that Burgess recanted her statements
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

13

Petitioner repeatedly asserts that this was a “close
case” and supports this assertion with the fact that the jury
deliberations lasted for three and a half days. However, the
length of their deliberations were not unreasonable considering
trial in this case lasted approximately four weeks and involved
over 60 witnesses and 250 exhibits. Moreover, during their
deliberations, the jury only sent out one note and the note did
not concern Petitioner. See ECF No. CR-1495, 1719.
14

Petitioner moves under Rule 7(a) of the Rules Governing
Section 2255 Proceedings for The United States District Courts,
to expand the record to include the Declarations of Kathy Smith,
Veronica Williams, Amy E. Jacks, and Petitioner. These
declarations would support Petitioner’s claim that Trial Counsel
was deficient in opposing the Government’s Motion to Admit the
Burgess Evidence, see Section II(C)(1)(a), because Petitioner
contends that they establish (1) that Petitioner was not
responsible for threatening Burgess to procure her unavailability
to testify at trial, and (2) that Trial Counsel had no authority
to disclose a confidential client communication. Reply at 76:2578:10. However, the Court concluded that it need not address the
first prong of the Strickland test because even if Trial Counsel
were deficient, there was no prejudice since the Burgess evidence
did not have a significant impact on the jury’s verdict. In
other words, even if the declarations were permitted in the
record, the analysis would not change. As such, the Court DENIES
as MOOT Petitioner’s request to expand the record.
34

1 incriminating Petitioner.

Specifically, Petitioner

2 contends that Trial Counsel could have presented
3 evidence which would have informed the jury of the
4 following: that statements Burgess made to law
5 enforcement and the grand jury that Petitioner was
6 present at a planning meeting were false; that the
7 police had employed suggestive interview techniques
8 that induced Burgess to make false statements; and that
9 Burgess was motivated by reward money offered by
10 police.15
11

Mot. at 25-33, 44-54; Reply at 61:11-20.

Trial Counsel debated the issue of presenting

12 evidence of Burgess’s recantation at trial.

See Opp’n

13 Ex. B, Responses of Amy E. Jacks to Gov.
14 Interrogatories (“Jacks Interrog. Resp.”) No. 7, ECF
15 No. CV 38-2 ; Opp’n Ex. C, Resp. of Richard P. Lasting
16 to Gov. Interrog. (“Lasting Interrog. Resp.”) No. 9,
17 ECF No. CR-2116-3, CV-38-3.

Strategically, however,

18 Trial Counsel chose not to introduce this evidence for
19 fear that it would end up hurting Petitioner’s case.
20 Jacks Interrog Resp. Nos. 8-9; Lasting Interrog. Resp.
21 No. 9.

Specifically, Burgess went missing and was

22 unavailable to testify at trial because she had been
23 threatened by the “Hoovers” after her identity had been
24 exposed to the defense.

O’Donnell Decl. ¶ 8.

The

25
26
27
28

15

Petitioner then argues in depth why the recantation
evidence would have been admissible at trial. See Mot. at 46:953:18. For purposes of analyzing Petitioner’s Motion, the Court
assumes, but does not hold, that the evidence would have been
admissible.
35

1 Government moved in limine to introduce Burgess’s out2 of-court statements on the basis that Petitioner caused
3 these threats to be issued against Burgess, thereby
4 procuring her unavailability.

See ECF No. CR-1392.

5 Based on the evidence presented to the Court, the Court
6 agreed with the Government and permitted the Burgess
7 evidence to be introduced against Petitioner.
8 No. CR-1460.

The Ninth Circuit affirmed.

See ECF

See Johnson,

9 767 F.3d at 823 (“[T]he evidence tended to show that
10 Johnson alone had the means, motive, and opportunity to
11 threaten Burgess . . . .”).

Trial Counsel expressed

12 concern that if they introduced evidence that Burgess
13 recanted her statements implicating Petitioner, that
14 would open the door for the Government to put on
15 evidence that Burgess only recanted her statements in
16 response to being threatened by Petitioner.
17 by Ms. Jacks:
18
19
20
21
22
23
24
25
26
27
28
36

As stated

1
2
3
4
5
6
7
8
9
10
Jacks Interrog. Resp. No. 8.
11
In evaluating whether Trial Counsel’s performance
12
was deficient, the question is whether the assistance
13
was “reasonable considering all of the circumstances.”
14
Strickland, 466 U.S. at 688, 689 (“[T]he defendant must
15
overcome the presumption that, under the circumstances,
16
the challenged action ‘might be considered sound trial
17
strategy.’”).

Here, it is apparent that Trial Counsel

18
thoughtfully weighed the competing considerations in
19
determining whether to introduce the recantation
20
evidence.

Irrespective of whether their ultimate

21
decision was more right than wrong or more wrong than
22
right, it was reasonable for Trial Counsel to believe
23
that under the circumstances, Petitioner’s case would
24
benefit most by not introducing the recantation
25
evidence.

See Strickland, 466 U.S. at 689

26
(“[S]trategic choices made after thorough investigation
27
of law and facts relevant to plausible options are
28
37

1 virtually unchallengeable.”); Santos, 741 F.2d at 1169
2 (“A tactical decision by counsel with which the
3 defendant disagrees cannot form the basis of a claim of
4 ineffective assistance of counsel.”).
5

Moreover, Trial Counsel was correct in recognizing

6 that had it been permitted to introduce the recantation
7 evidence, the Court would have allowed the Government
8 to respond by introducing the threat evidence.

The

9 threat evidence would likely include the statements
10 made by Burgess to law enforcement a mere twenty-four
11 hours after her identity was disclosed to the defense,
12 specifically that her name had been given to the
13 “Hoovers” and she had been receiving death threats.
14 Opp’n at 51:6-9; O’Donnell Decl. ¶ 8.

Depending on the

15 grounds under which the recantation evidence was
16 introduced, a number of evidence rules would have
17 rendered the threat evidence admissible.

These

18 statements could have been admitted under Federal Rule
19 of Evidence (“FRE”) 804(b)(6), the forfeiture by
20 wrongdoing exception to the rule against hearsay, for
21 the same reasons why Burgess’s out-of-court statements
22 were permitted to be introduced at trial in the first
23 place.

The threat evidence could also be admitted in

24 order to repair Burgess’s credibility under FRE 806
25 which provides that “[w]hen a hearsay statement . . .
26 has been admitted in evidence, the declarant’s
27 credibility may be attacked, and then supported, by an
28 evidence that would be admissible for those purposes if
38

1 the declarant had testified as a witness.”
2 Evid. 806 (emphasis added).

Fed. R.

Further, the threat

3 evidence could be admitted to impeach the recantation
4 testimony.

See Fed. R. Evid. 607.

Petitioner contests

5 the applicability of the impeachment by arguing that
6 “the [G]overnment would be improperly attempting to
7 impeach its own witnesses” and “the hearsay statements
8 would not serve to directly impeach the content of the
9 recantation evidence.”

Reply at 66:17-26.

However,

10 FRE 607 specifically states that even “the party that
11 called the witness” may impeach her.
12 607.

Fed. R. Evid.

Moreover, the threat evidence would be used to

13 impeach the recantation evidence because it would show
14 that Burgess changed her story for the defense as a
15 result of the threat made against her for initially
16 speaking out against Petitioner.
17

Petitioner contends that even if Trial Counsel were

18 concerned that the threat evidence would be admitted,
19 they could have moved in limine to exclude it before
20 determining whether to present the recantation
21 evidence.

While it is true that Trial Could have taken

22 extra measures to make certain that the threat evidence
23 would be admissible, “effective assistance need not be
24 ‘infallible’ assistance.”

United States v. McAdams,

25 759 F.2d 1407, 1409 (9th Cir. 1985) (citations
26 omitted).

Moreover, Trial Counsel were both highly

27 experienced criminal defense litigators.
28 Interrog. Resp. Nos. 1-2 (
39

See Jacks

1
2
3

; Lasting Interrog. Resp. Nos. 1-3

4
5
6
7

.

It goes without saying that Trial

8 Counsels’ decisions were largely based on their
9 experience and legal knowledge.

Thus, Trial Counsel’s

10 assumption that the threat evidence would be admissible
11 was reasonable under the circumstances.
12

Lastly, Petitioner asserts that even if the threat

13 evidence was admitted, the defense could have shown
14 either that someone other than Petitioner caused the
15 threat, or that the hearsay claims of threats were
16 false and developed to explain Burgess’s absence.
17 Reply at 61:28-62:2.

However, this alternative ignores

18 Ms. Jacks’ explanation
19
20
21
22

and also ignores

23 Trial Counsel’s fear
24
25
26
27 Interrog Resp. Nos. 8.

Jacks
Without this individual’s

28 testimony, it is not clear that Trial Counsel would
40

1 have been able to pin the threat on anyone else.
2 Additionally,
3

, it seems that Trial Counsel considered

4 Petitioner’s suggestion that Trial Counsel could have
5 explained to the jury that the threat allegations were
6 false, but ultimately decided that the risk of the jury
7 siding with the Government was too great.

Id.

8
9
10
11
12

As stated, this kind of strategic decision is

13 not enough to establish that Trial Counsel’s
14 performance was deficient.
15

In sum, Petitioner has failed to establish that

16 Trial Counsels’ performance was deficient, as required
17 to state an ineffective assistance of counsel claim. 16
18 Even the culmination of the alleged errors do not rise
19 to the level of “errors so serious that counsel was not
20 functioning as the ‘counsel’ guaranteed the defendant
21 by the Sixth Amendment.”

Strickland, 466 U.S. at 687.

22 Moreover, as discussed, Petitioner has failed to
23
16

24
25
26
27
28

Petitioner contends that assuming the truth of the
recantation evidence, then the Government presented false
evidence (in the form of Burgess’s prior statements to the police
and grand jury testimony) to the jury in violation of
Petitioner’s due process rights. Mot. at 53:21-54:25. However,
this claim is procedurally defaulted because Petitioner failed to
raise it both before the district court and on direct appeal.
See Bousley v. United States, 523 U.S. 614, 622 (1998).
41

1 establish that even without the Burgess evidence, there
2 is a reasonable probability that the jury would have a
3 reasonable doubt about Petitioner’s guilt.

Thus, the

4 Court DENIES Petitioner’s claim for ineffective
5 assistance of counsel with respect to Trial Counsel’s
6 handling of the Burgess evidence.
7

2.

8

Petitioner contends that Trial Counsel was

Dunagan Evidence

9 ineffective for failing to introduce the “alibi-type”
10 evidence that Petitioner was on a bus heading toward
11 Memphis on March 2, 2004, the date when Dunagan claimed
12 that he met with Petitioner in Los Angeles. 17

Prior to

13 trial, Dunagan was
14

between Trial Counsel and Petitioner.

15 Interrog. Resp. No. 11.

Jacks

Trial Counsel expressed to

16 Petitioner that they were concerned about introducing
17 this “alibi-type” evidence because:
18
19
20
21
22
23
24
25
26
27
28

17

Petitioner analogizes the evidence that he was out of the
Los Angeles area on March 2, 2004, to “alibi evidence” and cites
cases finding ineffective assistance of counsel where the counsel
failed to present actual alibi evidence. However, at most, the
evidence that Petitioner was out of the Los Angeles area on March
2, 2004 is evidence that would impeach Dunagan and his testimony.
Contrary to the cases cited by Petitioner, this evidence does not
provide Petitioner with an alibi to the underlying robbery.
42

1
2 Id. at No. 12.

Nevertheless, Trial Counsel agreed

3 to
4
5
6
7

Id.

8 at No. 12.

Trial Counsel’s investigation consisted

9 of:
10
11
12
13
14
15
16
17
.18

18

Id. at Nos. 12, 15;

19 Lasting Interrog. Resp. Nos. 12-14.

As stated by

20 Ms. Jacks,
21
22
23

Despite their own beliefs,

24 however, Trial Counsel were unable to corroborate
25
26
18

27

Ms. Jacks also stated that
Jacks

28 Interrog. Resp. No. 15.a.
43

1 that Petitioner left Los Angeles on a Greyhound bus
2 on the evening of March 1, 2004 headed for Memphis,
3 as he and Sims alleged.
4

Petitioner contends that Trial Counsel should

5 have called Sims to testify about Petitioner’s
6 Memphis trip.

In support, Petitioner points to

7 Sims’ declaration in which she states that she
8 spoke with Petitioner on March 1, 2004 about his
9 plan to take the trip to Memphis; that on the
10 evening of March 1, 2004, Petitioner went to the
11 Greyhound bus station; that either during the late
12 evening of March 1, 2004 or on March 2, 2004,
13 Petitioner called Sims and they talked about the
14 fact that he was on the bus trip en route to his
15 destination; and that when Petitioner left on the
16 bus trip, he took one of the phones connected to
17 Sims’ account with him and must have used that
18 phone to call her.

See Mot. Ex. H Decl. of

19 Chetarah Sims (“Sims Decl.”) ¶¶ 2-4, ECF No. CR20 2086-9, CV-11-9.

Petitioner also points to phone

21 records from Sims’ account showing five phone calls
22 during the morning and evening of March 2, 2004,
23 which he alleges confirm the statements in Sims’
24 declaration, namely that on March 2, 2004, she
25 spoke to Petitioner whilst he was on his bus trip.
26 See Mot. Ex. I.

However, Sims was an unreliable

27 witness, as evidenced by her inconsistent and vague
28 statements on a variety of related matters.
44

See

1 Lasting Interrog. Resp. No. 13
2
3
4
5
.19

6

Further, at most the

7 phone records only show that a number that
8 Petitioner may have been using on March 2, 2004 had
9 connected several times to Sims’ number in Los
10 Angeles and that the calls lasted anywhere from
11 three to seven minutes each.

Importantly, however,

12 the records do not contain information supporting
13 that Petitioner actually took the trip to Memphis,
14 as none of the records indicate where Petitioner
15 was located when he made or received calls.
16
19

17

See e.g. Jacks Interrog. Resp. No. 13

18
19
20
21
22
23
24
25
26
27
28

.
45

1

Given the lack of strong evidence supporting

2 Petitioner’s trip to Memphis, the weak impeachment
3 value it would have if Dunagan simply stated that
4 he got the date wrong, and the grave risk that the
5 jury would interpret the trip as Petitioner
6 attempting to flee after committing the robbery,
7 Trial Counsel acted reasonably in choosing to focus
8 their impeachment efforts elsewhere.

Specifically,

9 Trial Counsel gathered and presented impeachment
10 evidence to attack Dunagan’s claim that Petitioner
11 had shot himself in the foot.

See Opp’n at 77:7-

12 78:2 (citing ECF No. 1708, 3/2/10 RT 152-70; ECF
13 No. CR-1709, 3/3/10 RT 5-16).

Trial Counsel had

14 Petitioner physically examined and x-rays taken of
15 his feet, and had two experts testify at trial
16 expressing doubt that Petitioner suffered any type
17 of gunshot wound.

Id.

Trial Counsel also

18 undertook great efforts to impeach Dunagan’s
19 credibility as a witness based on his background.
20 See Opp’n at 78:3-79:11.

In addition to the

21 discovery the Government produced on Dunagan
22 consisting of his extensive criminal background,
23 his prior cooperation with the Government, his lies
24 to law enforcement in court proceedings, and his
25 phone records and calls from custody, see Opp’n at
26 78 n. 62, Trial Counsel conducted a thorough
27 investigation to gather impeachment evidence:
28
46

1
2
3
4
5
6
7
8
9
10
11
12
Jacks Interrog. Resp. No. 16; see also Lasting
13
Interrog. Resp. No. 16
14
15
16
17
18
19
.

At trial, Trial Counsel elicited

20
much of this damaging evidence against Dunagan
21
during their thorough cross-examination of him.
22
Trial Counsel also questioned several law
23
enforcement witnesses about inconsistent statements
24
made by Dunagan, and presented their own witnesses
25
and evidence to impeach aspects of Dunagan’s
26
testimony.

See Opp’n Ex. D, at *41 n.33.

27
Thus, even without introducing Petitioner’s
28
47

1 trip, Trial Counsel were effective in putting forth
2 substantial impeachment evidence.

Trial Counsel’s

3 decision to rely on this impeachment evidence,
4 which came without any risk to Petitioner, instead
5 of hedging their bets by introducing weak evidence
6 of a trip which could be perceived as an attempt by
7 Petitioner to flee on the night of the crime, was
8 reasonable.20

See Hensley v. Crist, 67 F.3d 181,

9 185 (9th Cir. 1995) (citation omitted) (“Tactical
10 decisions that are not objectively unreasonable do
11 not constitute ineffective assistance of
12 counsel.”).

Thus, the Court DENIES Petitioner’s

13 claim of ineffective assistance of counsel with
14 respect to Trial Counsel’s handling of the Dunagan
15 evidence.
16 D.

Request For Evidentiary Hearing

17

Pursuant to 28 U.S.C. §2255, a hearing must be

18 granted “[u]nless the motion and the files and
19 records of the case conclusively show that the
20 prisoner is entitled to no relief.”
21 2255(b).

28 U.S.C. §

In making such determination, “[s]ection

22
23
24
25
26
27
28

20

Petitioner doubts that the Court would have instructed
the jury that the trip could be evidence of flight and
consciousness of guilt. See Reply at 73:6-74:20. Even assuming
that were true, the jury would still draw their own conclusions
about the suspicious timing of the trip and the Government would
have been free to connect these dots for the jury in their
closing argument. In other words, just because the jury may not
have received an instruction that the trip could be evidence of
flight, does not mean that the evidence would not have been
perceived that way.
48

1 2255 requires only that the district court give a
2 claim ‘careful consideration and plenary
3 processing, including full opportunity for
4 presentation of the relevant facts.’” Shah v.
5 United States, 878 F.2d 1156, 1159 (9th Cir. 1989)
6 (citations omitted).

The “choice of method [is

7 entrusted] to the court’s discretion.”
8

Id.

Petitioner moves for an evidentiary hearing as

9 to the claims relating to counsel’s ineffective
10 representation regarding the Burgess evidence.
11 Reply at 78:13-14; Mot. at 66:25-26.

See

However,

12 other than making the conclusory statement that
13 “Petitioner has made factual allegations that
14 entitle him to relief,” Petitioner fails to provide
15 any reason why an evidentiary hearing is warranted.
16 The Court has already permitted both parties to
17 file extremely lengthy briefs in order to ensure
18 that both sides are fully heard.

See Mot. (67

19 pages excluding exhibits); Opp’n (87 pages
20 excluding exhibits); Reply (79 pages excluding
21 exhibits).

These briefs, in addition to the

22 exhibits attached thereto, adequately flesh out
23 each side’s positions regarding the Burgess
24 evidence.

The arguments made have been adequately

25 addressed by the parties’ briefs, exhibits, and the
26 existing voluminous record in this case, with which
27 the Court is very familiar.

The Court has

28 thoughtfully considered each argument presented by
49

1 Petitioner, and has concluded that even assuming
2 the truth of Petitioner’s allegations, he would not
3 be entitled to relief because he has failed to
4 establish a reasonable probability that without the
5 Burgess evidence, the jury would have had a
6 reasonable doubt about Petitioner’s guilt.

See

7 Baumann v. United States, 692 F.2d 565, 571 (9th
8 Cir. 1982) (“[T]he petitioner . . . must only make
9 specific factual allegations which, if true, would
10 entitle him to relief.”).

Because the Motion,

11 files and records in this case conclusively
12 establish that Petitioner is not entitled to
13 relief, the Court DENIES Petitioner’s request for
14 an evidentiary hearing.
15 E.

Certificate of Appealability

16

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

17 must seek and obtain a certificate of appealability
18 (“COA”) to appeal the district court’s denial of
19 relief under § 2255.

28 U.S.C. § 2253 (c)(1).

20 district judge may also issue a COA.

A

See Fed. R.

21 App. P. 22 (b); United States v. Asrar, 116 F.3d
22 1268, 1269-70 (9th Cir. 1997) (“[D]istrict courts
23 possess the authority to issue certificates of
24 appealability in § 2255.”).

A “certificate of

25 appealability may issue . . . only if the applicant
26 has made a substantial showing of the denial of a
27 constitutional right.”

28 U.S.C. § 2253 (c)(2).

28 The petitioner must show that reasonable jurists
50

1 could debate whether the petition should have been
2 resolved differently or that the issues presented
3 are “adequate to deserve encouragement to proceed
4 further.”

Slack v. McDaniel, 529 U.S. 473, 483-84

5 (2000).
6

Petitioner fails to meet this burden.

Because

7 Hobbs Act robbery is a crime of violence under the
8 Force Clause, § 924(c)(3)(A), reasonable jurists
9 could not debate whether Petitioner’s § 2255 Motion
10 could be decided differently with respect to his §
11 924(c) sentence.

Moreover, based on all of the

12 reasons already stated in the Court’s analysis
13 rejecting Petitioner’s ineffective assistance of
14 counsel claims, reasonable jurists could not debate
15 whether Petitioner’s ineffective assistance of
16 counsel claims could be decided differently.

In

17 short, Petitioner has failed to make a “substantial
18 showing of the denial of a constitutional right.”
19 As such, the Court DENIES Petitioner’s request for
20 the Court to issue Petitioner a Certificate of
21 Appealability.
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
51

1
2

III.

CONCLUSION

For the foregoing reasons, the Court DENIES

3 Petitioner’s § 2255 Motion.

The Court further

4 DENIES Petitioner’s request for an evidentiary
5 hearing, and DENIES Petitioner’s request for a
6 certificate of appealability.
7
8
9

/s/ RONALD S.W. LEW

10 DATED: April 23, 2019
11

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

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
52