Boyd v. USA
Filing
28
MINUTE ORDER IN CHAMBERS by Judge David O. Carter: Order Denying Petitioner's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (2255) (Criminal Case SACR05-72-DOC) 1 . (Made JS-6 Case terminated) (mt)
O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JS-6
CIVIL MINUTES – GENERAL
Case No. SACV 08-0601-DOC
SACR 05-0072-DOC
Date: September 20, 2012
Title: JOEL BOYD. V. UNITED STATES OF AMERICA
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:
None Present
N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:
None Present
PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER’S
MOTION TO VACATE, SET ASIDE OR
CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY
Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“Motion”) filed by Petitioner Joel Boyd (“Petitioner”). (Dkt.
1). After reviewing the motion, opposition, and reply, the Court DENIES Petitioner’s
Motion. The Court finds the matter appropriate for decision without oral argument. Fed
R. Civ. P. 78; Local R. 7-15.
I.
Background
On January 25, 2006, Petitioner was convicted of conspiracy to interfere with
commerce by robbery, interference with commerce by robbery, and using, carrying, or
brandishing a firearm during a crime of violence. Mot. (Dkt. 1) at 2. He was sentenced to
322 months. Id. The conviction was affirmed on appeal by the Ninth Circuit and the
petition for writ of certiorari was denied by the Supreme Court. United States v. Boyd,
480 F.3d 1178 (9th Cir. 2007); Boyd v. United States, 550 U.S. 977 (2007). The same
counsel (“Counsel”) represented Petitioner during both the trial and the appeal.
On May 29, 2008, Petitioner filed the present Motion arguing that his conviction
should be set aside due to ineffectiveness of counsel in violation of the Sixth Amendment
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and prosecutorial misconduct. Mot. (Dkt.1) at 4-6. Petitioner is represented by different
counsel in this motion than at trial and on appeal. Id. at 1.
a. Pre-trial
Counsel states he met with Petitioner before the trial to discuss possible defenses.
Counsel Decl. (Dkt. 252) at ¶ 3. Counsel also states that, prior to trial, he discussed the
consequences of a change of plea versus trial, and because Petitioner was a “career
offender” and claimed to have information regarding unrelated cases, Counsel advised
Petitioner that a plea agreement was in his best interest. Id. at ¶¶ 4-5.
b. Trial
At trial, Petitioner claims in his Motion that Counsel did not object to government
witness K.S.’s testimony that although she only saw one of the two men that who
committed the robbery, she assumed the man she did not see was African American,
which is the same race as the Petitioner. Mot. (Dkt. 1) at 5. Counsel claims he did not
raise an objection to the testimony because he believed that the jury would see the
assumption was “ridiculous,” which would discredit the witness. Counsel Decl. (Dkt.
252) at ¶ 8.
Petitioner claims in his Motion that Counsel brought in evidence of another
pending case in which the Petitioner was also indicted involving cashing stolen treasury
checks. Mot. (Dkt. 1) at 5. Counsel played the recording of the statement Petitioner made
to FBI Special Agent Mark Matthews (“SA Matthews”), which included a confession to
the check-cashing scheme. Counsel Decl. (Dkt. 252) at ¶ 9. Counsel alleges that
introducing evidence of the check-cashing scheme through the recording during trial was
part of a tactical decision to discredit SA Matthew’s testimony that Petitioner admitted to
the robbery off the record. Id.
At trial, a coconspirator (“Coconspirator R”) testified that the Petitioner was one
of the men involved in the robbery, and SA Matthews testified the Petitioner confessed to
the crime off the record. Resp., SACR 05-72-DOC-1 (Dkt. 250) Ex. A, Ex. C. United
States Secret Service Special Agent Wesley Schwark also testified that the Petitioner
admitted to committing the crime. Resp. (Dkt. 250) at 4. The government also played a
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recording of a jailhouse conversation between the Petitioner and a coconspirator
(“Coconspirator W”). Mot. (Dkt. 1) at 4. Counsel objected to the playing of the tape. Id.
c. Closing Arguments
During closing arguments, Counsel made several comments regarding the
Petitioner. First, Counsel said Petitioner and the other person in Petitioner’s recorded
calls “did not grow up in the neighborhood [Counsel] grew up in, did not grow up
probably in the neighborhoods [the jury] grew up in, and have a different way of
speaking to one another when they’re referring to certain thing.” Mot. (Dkt. 1) at 5.
Counsel claims he made this statement to “detract from the impact of [Petitioner’s] use of
language during the recorded calls.” Counsel Decl. (Dkt. 252) at ¶ 10.
Second, Counsel stated:
[T]hese are people—and I hesitate to say this—but these are people that
are familiar with the system and are making types of decisions that you’ve
never had to make. . . I know you don’t like hearing about this stuff,
because it’s dirty. But that’s what happens. That’s reality. This isn’t TV.
This is real.
Mot. (Dkt. 1) at 5. Counsel “didn’t like listening to the phone conversations… because of
the way [Petitioner] spoke.” Id. Counsel claims he made these statements so the jury
would not use Petitioner’s discussion with his mother regarding his plea agreement as an
admission of guilt. Counsel Decl. (Dkt. 252) at ¶ 11.
Finally, Counsel also tells the jury that Petitioner told a coconspirator to give up if
the FBI shows up because “if a person suspected of a violent crime doesn’t give up, they
get shot. I’m not saying there is anything wrong with that. As a matter of fact, there’s
probably something right with it.” Mot. (Dkt. 1) at 5. Counsel claims he made this
comment following a recording the jury heard where the Petitioner is heard telling his
coconspirator to give himself up if the FBI arrests him. Counsel Decl. (Dkt. 252) at ¶ 12.
Counsel claims he wanted the jury not to misconstrue what they heard in the recording as
an admission. Id.
During the AUSA’s closing arguments Petitioner claims the AUSA called
Petitioner’s wife and mother, who both testified at trial, “liars.” Mot. (Dkt. 1) at 5. At
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trial, the AUSA said, “It’s the prosecution’s position [Petitioner’s mother and wife] lied
on the witness stand. They weren’t mistaken. They didn’t have a memory lapse. They
lied.” Resp. (Dkt. 250) at 5. The Government argues that after the comment was made,
the AUSA went through the evidence to show why the testimony of Petitioner’s wife and
mother was not believable. Id. Counsel did not object to this comment at the time it was
made. Mot. (Dkt. 1) at 5. Counsel did not object because Counsel did not believe the
comment could be considered misconduct. Counsel Decl. (Dkt. 252) at ¶ 13.
The AUSA also made the following comments during the rebuttal arguments: (1)
“I’m not gonna try and explain to you what reasonable doubt is, because when that
happens, that’s lawyers trying to get you to view the law the way they want you to view
it”; (2) “what I suspect everyone in this room, other than the defense, realizes is that there
are a multitude—a multitude of crimes that will violate both federal and state law”; and
(3) and the AUSA repeatedly referred to the defense argument as “counsel said” and
“counsel may say.” Mot. (Dkt. 1) at 5. Counsel did not object two the second and third
comments at the time they were made. Id. Counsel did not object because he did not
believe the comments could be considered misconduct. Counsel Decl. (Dkt. 252) at ¶ 13.
Counsel did move for a mistrial after the AUSA’s first comment. Resp. (Dkt. 250) Ex. D.
d. Appeal
Petitioner was represented by the same counsel at trial and on appeal. Mot. (Dkt. 1)
at 4. Petitioner’s Reply (“Reply”) claims Counsel never explained why the appeal
argument chosen was the best strategy, and since the issue on appeal lost at trial,
Petitioner expected Counsel to “dig a little deeper.” Rep. (Dkt. 27) Ex. 1. Counsel claims
he consulted with Petitioner and, based on the facts, the best argument on appeal would
be that the robbery did not interfere with interstate commerce. Counsel Decl. (Dkt. 252)
at ¶ 14. Counsel also claims he informed the Petitioner that he was free to choose another
lawyer from the appellate panel. Id. Counsel alleges that the Petitioner agreed with the
strategy, but made a comment to the effect that if the appeal failed an ineffective
assistance of counsel motion would be raised. Id. Petitioner denies making any such
comment. Rep. (Dkt. 27) Ex. 1.
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II.
Date: September 20, 2012
Page 5
Legal Standard
A motion to vacate, set aside, or correct sentence of a person in federal custody
pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief “[i]f the court finds that . . . there
has been such a denial or infringement of the constitutional rights of the prisoner as to
render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). If the motion
combined with the files and records of the case “conclusively” show that the prisoner is
not entitled to relief, no evidentiary hearing on the issues is warranted. Id.
The standard of review of § 2255 petitions is “stringent” and the court “presumes
earlier proceedings were correct.” United States v. Nelson, 177 F. Supp.2d 1181, 1187
(D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the “defendant must
show a defect in the proceedings which resulted in a ‘complete miscarriage of justice.’”
Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). It is important to note that
“relief is not available merely because of error that may have justified reversal on direct
appeal.” United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio,
442 U.S. 178, 184 (1979).
III.
Discussion
The Motion aims to vacate, set aside, or correct the sentence based on the
following three arguments: (1) Petitioner received ineffective assistance of trial counsel;
(2) Petitioner received ineffective assistance of appellate counsel; and (3) the AUSA
committed prosecutorial misconduct. Mot. (Dkt. 1) at 4-6.
a. Petitioner Did Not Receive Ineffective Assistance of Trial Counsel
The standard for evaluating a Sixth Amendment ineffective assistance of counsel
claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s
performance is constitutionally deficient when it “so undermine[s] the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.” Id. at 686. A petitioner claiming ineffective assistance of counsel bears the
burden of demonstrating that, under all the circumstances of his case: (1) “his counsel’s
performance was so deficient that it fell below an objective standard of reasonableness”,
and (2) his counsel’s deficient performance prejudiced him, meaning “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir.
1995) (quoting Strickland v. Washington, 466 U.S. at 687-88, 694). An after-the-fact
examination of counsel’s performance “is highly deferential and there is a strong
presumption that counsel’s conduct fell within the wide range of reasonable
representation.” United States v. Ferreira-Alameda, 815 F.3d 1251, 1253 (9th Cir. 1987).
In order to show that counsel’s performance fell below objectively reasonable
standards, Petitioner must present more than unsupported allegations. See Blackledge v.
Allison, 431 U.S. 63, 76 (1977); compare id. (“The petition indicated exactly what the
terms of the promise were; when, where, and by whom the promise had been made; and
the identity of one witness to its communication… we conclude that Allison’s petition
should not have been summarily dismissed.”) with United States v. Quan, 789 F.2d 711,
715 (9th Cir. 1986) (“Where a prisoner’s motion presents no more than conclusory
allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not
required.”) (citing to Farrow v. United States, 580 F.2d 1339, 1360–61 (9th Cir.1978) (en
banc)). “[T]he petition must be accompanied by a detailed and specific affidavit which
shows that the petitioner has actual proof of the allegations going beyond mere
unsupported assertions.” Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976).
Furthermore, a district court may deny a section 2255 motion without an evidentiary
hearing only if the movant’s allegations, “viewed against the record, either do not state a
claim for relief or are so palpably incredible or patently frivolous as to warrant summary
dismissal.” Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985) (citations
omitted) (internal quotations omitted).
Petitioner argues he received ineffective assistance of trial counsel for the
following reasons: (1) Counsel presented the Government’s recommendation of
settlement without explaining the consequences of a change of plea versus trial; (2)
Counsel did not object to witness K.S.’s testimony that, although she only saw one of the
two men that allegedly committed the robbery, she assumed the man she did not see was
African American, which is Petitioner’s race; (3) Counsel brought in evidence of another
pending case involving cashing stolen treasury checks in which Petitioner was indicted;
(4) Counsel made prejudicial remarks about Petitioner during closing arguments; and (5)
Counsel failed to object to prosecutorial misconduct of the AUSA. Mot. (Dkt. 1) at 5.
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i.
Date: September 20, 2012
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Allegation 1: Counsel presented the Government’s
recommendation of settlement without explaining the
consequences
Petitioner argues that Counsel presented the Government’s recommendation of
settlement without explaining the consequences of a change of plea versus trial, including
not explaining Petitioner’s maximum sentence exposure if he went to trial, the defenses
to be presented at trial, the prosecution’s evidence and strength versus the defense’s
evidence and its strength, and an evaluation of the risks of trial and the probability of
receiving a sentence after trial more favorable than the government’s recommendation.
Mot. (Dkt. 1) at 5.
The Government contends Petitioner’s allegations are not true. Resp. (Dkt. 250);
Counsel Decl. at ¶¶ 3-4. Counsel claims he met with Petitioner before the trial to discuss
possible defenses and consequences of a change of plea versus trial. Counsel Decl. at ¶¶
3-4.
a. Petitioner’s allegation is not properly supported
In United States v. Nahodil, the petitioner successfully appealed a district court’s
dismissal of his § 2255 motion without an evidentiary hearing when the record provided
evidence that the petitioner would not have pled guilty but for his counsel’s ineffective
assistance of counsel. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). In
Nahodil, the record “substantiated [the petitioner’s] claim that he was quite reluctant to
plead guilty” when the record showed petitioner did not want to admit that he used a
weapon during the incident for which he was being charged, petitioner interrupted the
hearing numerous times to confer with his attorney, and petitioner attempted to enter a
plea of nolo contendere during the hearing. Id.
Unlike the petitioner in Nahodil who was able to provide evidence that he did not
agree with Counsel’s strategy, Petitioner’s assertion that Counsel did not explain the
consequences of a change of plea versus trial is not supported by the record, nor properly
alleged. The Motion indirectly asserts that a meeting took place between Counsel and
Petitioner to discuss plea options before the trial, but alleges that the plea options were
not sufficiently explained. Mot. (Dkt. 1) at 5. Counsel offers a signed declaration under
penalty of perjury stating he discussed the pros and cons of accepting a plea versus trial,
as well as the best strategy to implement for the case. Counsel Decl. (Dkt. 252) at ¶ 14.
The Petitioner offers no part of the record, name of a witness, or specific details
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surrounding the allegation to support his claim, thus Petitioner’s claim is no more than a
conclusory allegation and dismissal is proper. If Counsel discussed plea options and trial
strategies with the Petitioner, then Counsel performed in an objectively reasonable
manner as required by the first prong of Strickland.
b. Counsel’s performance did not cause prejudice
Furthermore, even if Petitioner’s first allegation is not dismissed for lack of
record, under the second Strickland requirement, the Petitioner must also prove that
Counsel’s deficiencies led to prejudice. Petitioner must show, with more than
unsupported allegations, that he would have accepted the plea bargain. See Hill v.
Lockhart, 474 U.S. 52, 59 (1985). (“[I]n order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.”) In
Petitioner’s Reply, he makes several claims against Counsel’s effectiveness, but
Petitioner never claims that but for Counsel’s ineffectiveness in describing plea options
or trial strategies, Petitioner would have elected for a different course of action or would
have pled guilty. Rep. (Dkt. 27) Ex. 1. Therefore, even if Counsel fell below the objective
standard of reasonableness, Petitioner has not met his burden to prove prejudice. Thus,
his claim of ineffective assistance of counsel based on the first allegation must be
DENIED.
ii.
Allegation 2: Counsel did not object to witness K.S.’s
“highly prejudicial” testimony
Petitioner argues that because Counsel did not object to government witness
K.S.’s testimony that she assumed that the man she did not see was African American,
which is Petitioner’s race, Counsel provided ineffective assistance of counsel. Mot. (Dkt.
1) at 2.
The government contends that not objecting to K.S.’s testimony was a tactical
decision. Counsel claims he did not object to the testimony because he believed that the
jury would see the assumption was “ridiculous” and it would discredit the witness.
Counsel Decl. (Dkt. 252) at ¶ 8. Government additionally alleges that the other evidence
presented at trial, such as SA Matthew’s testimony that the Petitioner confessed to the
crime and the Coconspirator R’s testimony that Petitioner committed the crime, was
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enough to convict the Petitioner, therefore there could have been no prejudice. Resp.
(Dkt. 250) Ex. A, Ex. C.
Here, Petitioner has not raised a claim that falls outside of the “wide latitude”
Counsel is allowed when deciding how to best proceed with the case, as “[m]ere criticism
of a tactic or strategy is not in itself sufficient to support a charge of inadequate
representation.” Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980).
Furthermore, “a few missed objections alone, unless on a crucial point, do not rebut the
strong presumption that counsel’s actions (or failures to act) were pursuant to his
litigation strategy and within the wide range of reasonable performance.” United States v.
Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998). Counsel has explained his tactical
decision not to object to witness K.S.’s testimony was to discredit the witness, and his
decision does not fall below an objectively reasonable standard. Furthermore, even if
Counsel erred in failing to object, it was not on a crucial point and thus not sufficient to
declare his performance as ineffective. Thus, the first Strickland requirement of objective
unreasonableness is not met.
As Petitioner’s second allegation does not meet the first requirement to establish
ineffective assistance of counsel, it is unnecessary to discuss prejudice. Thus, the Court
finds the claim for ineffective assistance of counsel based on Petitioner’s second
allegation is DENIED.
iii.
Allegation 3: Counsel brought in evidence of another
pending case in which Petitioner was indicted
Petitioner claims that Counsel’s decision to bring in evidence of another pending
case involving Petitioner is grounds for ineffective assistance of counsel. Mot. (Dkt. 1) at
5.) The petitioner alleges that Counsel brought up the check cashing scheme repeatedly.
Id. Petitioner claims that Counsel insisted on using the case as part of the defense, and
that the prosecution was able to use the other case to convict Petitioner in the present
case. Id. Petitioner’s Reply adds that he was not involved with and did not approve the
trial strategy. Rep. (Dkt. 27) Ex. 1.
Counsel alleges that introducing evidence of the check-cashing scheme at trial was
part of a tactical decision to argue to the jury that any admissions made by the Petitioner
to SA Matthews on the record were not referring to the robbery—the conviction
Petitioner attacks here—but to the check fraud scheme. Counsel Decl. (Dkt. 252) at ¶ 9.
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The Government also presents excerpts of the trial record to show that at trial there was
sufficient evidence that there can be no showing of prejudice in Petitioner’s case because
the evidence of guilt was overwhelming, such as SA Mattews and the Coconspirator R’s
testimonies at trial. Resp. (Dkt. 250) Ex. A, Ex. C.
In United States v. Coleman, there was a tape which contained damaging but
admissible statements made by the petitioner, as well as statements referring to criminal
activity outside of the case being tried that would typically not be admissible. United
States v. Coleman, 707 F.2d 374, 378 (9th Cir. 1983). The government offered to play an
edited version of the tape so as to exclude evidence of unrelated crimes, but petitioner’s
counsel insisted the tape be played in its entirety, presumably to soften the effect of the
relevant criminal admissions. Id. The court held that counsel’s conduct was not deficient.
Id. The court reasoned that the decision to bring in the evidence of outside criminal
activity was one of trial strategy, and, furthermore, the evidence against the petitioner
was so strong that prejudice would be difficult to prove. Id.
Here, Counsel claims that bringing in the evidence of Petitioner’s confessions to
the check-cashing scheme were part of his trial strategy to minimize the effect of SA
Matthew’s testimony by trying to show that any confessions made on the record did not
refer to the robbery, and therefore casting doubt as to whether Petitioner made any offthe-record confessions of guilt about the robbery. Counsel Decl. (Dkt. 252) at ¶ 9.
Counsel’s trial decisions are given a high degree of deference, and trying to minimize the
testimony of SA Matthew does not fall below the standard of reasonableness. Thus,
Petitioner has failed to establish that Counsel’s actions meet the first requirement for
ineffective assistance of counsel.
Furthermore, like the petitioner in Coleman, Petitioner in the present case cannot
establish that he was prejudiced by Counsel’s choice to admit evidence of the checkcashing scheme given the weight of the evidence against him, such as the incriminating
testimonies of SA Matthew and Coconspirator R. Thus, Petitioner has failed to prove the
second Strickland requirement to establish ineffective assistance of counsel.
As Petitioner fails to establish either of the Strickland requirements to prove
ineffective assistance of counsel, Petitioner’s claim of ineffective assistance of counsel
based on the third allegation is DENIED.
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Allegation 4: Counsel made prejudicial remarks about
Petitioner during closing arguments
Petitioner alleges Counsel made prejudicial remarks about Petitioner during
closing arguments. The statements by Counsel to which Petitioner objects are:
(1) Counsel’s comments to the effect that the Petitioner “did not grow up in
the neighborhood [Counsel] grew up in, did not grow up probably in the
neighborhoods [the jury] grew up in, and have a different way of speaking
to one another when they’re referring to certain things”;
(2) “these are people—and I hesitate to say this—but these are people that
are familiar with the system and are making types of decisions that you’ve
never had to make.”;
(3) Counsel “didn’t like listening to the phone conversations… because of
the way [Petitioner] spoke”;
(4) Counsel also told the jury that Petitioner told a coconspirator to give up
if the FBI shows up because “if a person suspected of a violent crime
doesn’t give up, they get shot. I’m not saying there is anything wrong with
that. As a matter of fact, there’s probably something right with it.” Mot.
(Dkt. 1) at 5.
Government argues Counsel was effective because Counsel’s language used at
closing argument were parts of tactical decisions. Counsel claims he made these
statements to “detract from the impact of [Petitioner’s] use of language during the
recorded calls,” to ensure the jury would not use Petitioner’s discussion with his mother
regarding his plea agreement as an admission of guilt, and to dissuade the jury from
misconstruing what they heard in the recording as an admission of guilt. Counsel Decl.
(Dkt. 252) at ¶ 10-11. The Government also presents excerpts of the trial record to show
that there could be no prejudice as there was sufficient evidence to warrant a conviction,
such as testimony from a Coconspirator R and SA Matthews that Petitioner committed
and admitted to the robbery. Resp. (Dkt. 250) Ex. A, Ex. C.
The Petitioner’s claim that counsel’s remarks fell below the first Strickland
standard fails because Counsel’s trial decisions are given a high degree of deference and
Counsel claims his comments were part of his trial strategy to minimize the impact of the
evidence against his client and the type of language the jury may have heard the
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Petitioner using. In Fairbank v. Ayers, the Ninth Circuit stated, “[e]ven though at times
trial counsel did not paint [petitioner] in the most sympathetic light, counsel cannot be
deemed ineffective for attempting to impress the jury with his candor and his
unwillingness to engage in a useless charade.” Fairbank v. Ayers, 650 F.3d 1243, 1255
(9th Cir. 2011) cert. denied, 132 S. Ct. 1757 (2012) (citations omitted) (internal
quotations omitted).
The first and third comments were made in reference to recordings played for the
jurors where they heard Petitioner speak. Counsel claims he wanted to minimize the
impact of Petitioner’s language. The second comment was in response to a recorded
telephone call in which the Petitioner discusses plea agreements with his mother. It is
quite reasonable that these three comments were part of a strategy to address the evidence
the jury heard and “impress the jury with his candor” by openly acknowledging that his
client was someone they would not find sympathetic. Fairbank, 650 F.3d at 1255.
The fourth comment was an attempt to reroute the jury’s possible opinion of guilt
based on a recording where the Petitioner told a coconspirator to give in if the FBI if they
came after him. Counsel’s comment about there probably being something right about the
FBI shooting someone suspected of committing a violent crime was probably
unnecessary, but does not cross the line to objective unreasonableness because it was not
a prejudicial remark about the Petitioner.
As Petitioner fails to meet the first Strickland requirement, it is unnecessary to
investigate whether Counsel’s choice led to prejudice. Thus, Petitioner’s claim of
ineffective assistance based on Petitioner’s fourth allegation is DENIED.
v.
Allegation 5: Counsel failed to object to “prosecutorial
misconduct” of the AUSA
Petitioner also alleges Counsel failed to provide effective assistance of trial
counsel when Counsel failed to object to “prosecutorial misconduct” of the AUSA. Mot.
(Dkt. 1) at 5. Petitioner argues two reasons for prosecutorial misconduct. First, Petitioner
claims the AUSA “called Petitioner’s wife and mother liars.” Mot. (Dkt. 1) at 5.
Secondly, Petitioner contends that the AUSA’s rebuttal comments repeatedly disparaged
Counsel. Id. For example, the AUSA stated “that’s lawyers trying to get you to view the
law the way they want you to view it,” “what I suspect everyone in this room, other than
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the defense, realizes is that there are… a multitude of crimes that will violate both federal
and state law,” and finally, repeatedly referring to the defense arguments as “counsel
said” and “counsel may say.” Id.
The Government contends Counsel was effective because Counsel did not believe
the AUSA’s closing argument was improper. Resp. (Dkt. 250) at 10-13. The Government
contends that Petitioner misrepresents the AUSA’s comments because the AUSA never
called Petitioner’s mother and wife liars, but rather stated that they lied on the witness
stand and went through how the evidence made their testimonies unbelievable. Resp.
(Dkt. 250) at 5-6. (“It’s the prosecution’s position [Petitioner’s mother and wife] lied on
the witness stand. They weren’t mistaken. They didn’t have memory lapse. They lied.”).
The Government argues that the comments made by the AUSA did not disparage
Counsel and Counsel claims he did not find the comments offensive or disparaging. Id.
Petitioner’s fifth allegation fails for two reasons. First, the AUSA did not use the
word “liars” when referring to Petitioner’s mother, thus part of the allegation is factually
inaccurate. Second, Counsel has wide discretion on how to represent his client. If
Counsel did not find the statements made by the AUSA objectionable, then a high degree
of deference must be paid to this decision. The Ninth Circuit has stated, “many lawyers
refrain from objecting during opening statement and closing argument, absent egregious
misstatements, the failure to object during closing argument and opening statement is
within the ‘wide range’ of permissible professional legal conduct.” United States v.
Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993). Moreover, Petitioner cites no authority
to find the phrases “counsel said” or “counsel may say” indicative of “prosecutorial
misconduct.” This part of the allegation may be rejected as “patently frivolous.” Marrow,
772 F.2d at 526. Petitioner’s allegations are not sufficient to overcome the high
presumption that Counsel acted reasonably.
As Petitioner fails to meet the first Strickland requirement, it is unnecessary to
investigate whether Counsel’s choice led to prejudice. Thus, Petitioner’s claim of
ineffective assistance of counsel based on Petitioner’s fifth allegation is DENIED.
vi.
Conclusion
For the foregoing reasons, the § 2255 motion on the grounds of ineffective
assistance of trial counsel is DENIED.
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CIVIL MINUTES – GENERAL
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b. Petitioner Did Not Receive Ineffective Assistance of Appellate
Counsel
The Strickland standard of ineffective assistance of counsel also applies to the
appeals process, meaning counsel must have performed “below an objective standard of
reasonableness” and “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 687-88, 694. See Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (“A
failure to raise untenable issues on appeal does not fall below the Strickland standard.”)
The Supreme Court has acknowledged a person’s right to effective assistance of counsel
on appeal. Evitts v. Lucey, 469 U.S. 387 (1985) (“[N]ominal representation on an appeal
as of right—like nominal representation at trial—does not suffice to render the
proceedings constitutionally adequate; a party whose counsel is unable to provide
effective representation is in no better position than one who has no counsel at all.”)
The “Federal Constitution imposes one general requirement: that counsel make
objectively reasonable choices.” Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000).
“Counsel who consults with the defendant performs in a professionally unreasonable
manner only by failing to follow the defendant’s express instructions about [filing] an
appeal.” Id. at 478. Furthermore, “[e]xperienced advocates since time beyond memory
have emphasized the importance of winnowing out weaker arguments on appeal and
focusing on one central issue if possible, or at most on a few key issues.” Jones v.
Barnes, 463 U.S. 745, 751 (1983).
Petitioner argues he received ineffective assistance of appellate counsel for the
following reasons: (1) Counsel failed to appeal the Court’s overruling Counsel’s
objection under Crawford v. Washington to playing the tape of jailhouse conversation
that took place between Petitioner and Coconspirator W; (2) Counsel failed to renew his
motion for mistrial on appeal after the AUSA’s rebuttal argument said “I’m not gonna try
and explain to you what reasonable doubt is, because when that happens, that’s lawyers
trying to get you to view the law the way they want you to view it”; (3) Counsel failed to
explain to Petitioner that, as trial and appellate counsel, it was inappropriate and unethical
for him to advise Petitioner regarding whether there were issues of ineffectiveness of
counsel; and (4) Counsel failed to appeal Petitioner’s conviction on the ground that there
was insufficient evidence to show that Petitioner participated in the crime for which he
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CIVIL MINUTES – GENERAL
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was convicted. Mot. (Dkt. 1) at 4-5.The Court concludes all four allegations fail the first
prong of the Strickland test, and thus there is no need to discuss the second prong.
i. Allegation 1: Counsel failed to appeal the Court’s
overruling of Counsel’s objection to playing the tape of
a jailhouse conversation
Petitioner claims he received ineffective assistance of counsel because Counsel
failed to appeal the Court’s overruling of Counsel’s objection to playing the tape of a
jailhouse conversation that took place between Petitioner and Coconspirator W. Mot.
(Dkt. 1) at 4. Counsel’s objection at trial was based on Crawford v. Washington, which
held that “[t]estimonial statements of witnesses absent from trial [are] admitted only
where the declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). At trial,
Counsel objected to the playing of the recording. Mot. (Dkt. 1) at 4. The Petitioner
argues that the prosecution interpreted the conversation as referring to the robbery and
that, because Coconspirator W never took the stand, there was no opportunity for crossexamination. Id. Petitioner argues Counsel should have appealed the overruling because
the Court’s decision to overrule the objection rendered the trial unfair. Id.
The Government counters that playing the jailhouse recordings did not violate
Crawford because the Supreme Court stated in Crawford that “[a]n accuser who makes a
formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51. Resp.
(Dkt. 250) at 9.
Here, the Court finds that the Petitioner has not provided sufficient facts to show
that the admission of the recording was improper. In Crawford, the Supreme Court
defines testimonial evidence as “[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51 (internal
quotations omitted). The Supreme Court also gives several examples of types of evidence
that could be considered testimonial, such as statements made to the police, examinations
made while in custody, affidavits, depositions, and prior testimonies. Id. at 51-53.
Here, the recording played at trial was a conversation among coconspirators, and
not a statement made by Coconspirator W to any person of authority intending to make a
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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
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declaration or affirmation. The Petitioner does not allege that Coconspirator W meant for
the police or other government authorities to overhear the conversation. Thus, Petitioner
has not provided sufficient information to show that the recording was testimonial, and
therefore the Court does not find a violation of Crawford. Counsel is not required to raise
“untenable issues on appeal.” Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). As
Counsel acted with objective reasonableness regarding Petitioner’s appeal by not raising
an unmeritorious claim, the first allegation fails to meet the first requirement of
establishing ineffective assistance of counsel, thus the Motion based on the first
allegation is DENIED.
ii.
Allegation 2: Counsel failed to appeal denial of his
motion for a mistrial after the AUSA’s rebuttal
argument
Petitioner claims Counsel provided ineffective assistance because he failed to
appeal the denial his motion for a mistrial after the AUSA’s rebuttal argument said “I’m
not gonna try and explain to you what reasonable doubt is, because when that happens,
that’s lawyers trying to get you to view the law the way they want you to view it.” Mot.
(Dkt. 1) at 4.
The Government argues that Petitioner presents no grounds for a mistrial based on
the AUSA’s rebuttal argument because the Petitioner provides no authority to explain
why the statements are improper. Resp. (Dkt. 250) at 9.
Here, Petitioner neither explains why the AUSA’s statements are grounds for a
mistrial, nor cites any authority to support his allegation. The Court holds that the
AUSA’s statement is not grounds for a mistrial, as Petitioner has cited no authority to
support his argument.
Because Counsel is not obligated to file an appeal for “untenable issues,” the
Court finds that Counsel acted with objective reasonableness. Thus, the first Strickland
requirement to establish ineffective assistance of counsel is not met and the Motion for
ineffective assistance of counsel on the basis of the second allegation is DENIED.
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iii.
Date: September 20, 2012
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Allegation 3: Counsel failed to explain to Petitioner
that as trial and appellate counsel it was
inappropriate and unethical for him to advise
Petitioner regarding whether there were issues of
ineffectiveness of counsel
Petitioner alleges that Counsel failed to explain to Petitioner that, as both trial and
appellate counsel, it was inappropriate and unethical for Counsel to advise Petitioner
regarding whether there were issues of ineffective assistance of counsel. Mot. (Dkt. 1) at
4. Petitioner’s Reply cites to Ciak v. United States, 59 F.3d 296, 303 (2d Cir. 1995) (“It is
rare the attorney who can be expected to contend on appeal that his representation was so
poor that he deprived his client of a fair trial.”) and Hoffman v. Arave, 236 F.3d 523 (9th
Cir. 2001) (“Not surprisingly, Hoffman’s trial counsel failed to raise and argue the issue
of their own ineffectiveness in post-conviction proceedings.”).
Counsel claims he consulted with Petitioner and that based on the facts the best
argument on appeal would be that the robbery did not interfere with interstate commerce.
Counsel Decl. (Dkt. 252) at ¶ 14. Counsel also claims he informed the Petitioner that he
was free to choose another lawyer from the appellate panel. Id. Counsel states that the
Petitioner agreed with the strategy. Id.
Here, the Ninth Circuit case cited by Petitioner, Hoffman v. Arave, never held that
it is inappropriate or unethical for an attorney to represent the same client at trial and on
appeal. Hoffman, 236 F.3d at 530. In Hoffman, the petitioner was trying to raise a claim
of ineffective assistance of counsel in a 28 U.S.C. § 2254 motion after the state court had
ruled that the claim was procedurally barred because it was not raised in the first appeal.
Id. at 530. The Ninth Circuit held that when a petitioner is represented by the same
counsel at trial and on appeal, the petitioner will not be procedurally barred from
collaterally attacking the sentence on the grounds of ineffective assistance of appellate
counsel. Id. at 531-532.
Hoffman does not stand for the premise that the trial counsel’s failure to advise the
petitioner about potential ineffective assistance of counsel claims is unethical and
inappropriate. To the contrary, Hoffman acknowledges that it is not surprising that trial
counsel failed to raise the issue of their ineffective assistance of counsel and creates a
safeguard based on this potential conflict of interest by allowing a petitioner to
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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
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collaterally attack his sentence on the grounds that an argument should have been raised
on appeal but was not due to ineffective assistance of appellate counsel. Id. at 523. See
also Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983), (stating, in a case where
petitioner was represented by the same counsel at trial and on appeal, “it is obvious that
ineffective assistance of counsel is not likely to be raised at trial or to appear among the
assignments of constitutional error.”) Because the Ninth Circuit recognized this potential
conflict, in cases where the petitioner is represented by the same counsel at trial and on
appeal, petitioners are not procedurally barred from collaterally attacking their sentence
for ineffective assistance of counsel, even if the claim was not raised on appeal. Hoffman,
236 F.3d at 531-532. Petitioner fails to establish that Counsel’s performance based on the
third allegation of ineffective assistance of appellate counsel fell below the objectively
reasonable standard.
Because Petitioner’s argument is based on the faulty premise that it is unethical or
inappropriate for an attorney to represent the same client at trial and on appeal, Petitioner
has failed to satisfy the first Strickland factor. Thus, the ineffective assistance of appellate
counsel based on the third claim is DENIED.
iv.
Allegation 4: Counsel failed to appeal Petitioner’s
conviction on the ground of insufficient evidence
Petitioner argues that Counsel’s failure to appeal Petitioner’s conviction on the
ground that there was insufficient evidence to show that Petitioner participated in the
crime for which he was convicted is grounds for finding ineffective assistance of counsel.
Mot. (Dkt. 1) at 4.
The Government’s Response cites to the record to show the evidence presented at
trial included testimony of Coconspirator R and the testimony by two government agents
that Petitioner confessed to the robbery. Resp. (Dkt. 250) Ex. A, Ex. C.
Petitioner’s allegation that there was insufficient evidence to support the verdict is
not supported by the record. Given the weight of the evidence presented against
Petitioner, to appeal on the grounds of insufficient evidence would have been a futile
attempt that would have diluted the strength of other arguments on appeal. Counsel’s
actions or inactions regarding the appeal were not unreasonable, thus the first part of the
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Strickland test is unmet and Petitioner’s Motion based on the fourth allegation is
DENIED.
v.
Conclusion
Because the four claims of ineffective assistance of appellate counsel fail on the
first prong of the Strickland test, it is unnecessary to discuss the second prong, namely
whether “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Thus, for the foregoing reasons, the § 2255 motion on the grounds of ineffective
assistance of appellate counsel is DENIED.
c. Claims of “Prosecutorial Misconduct” are Procedurally Barred
The Petitioner’s allegations of “procedural misconduct” were not raised on appeal
and thus are procedurally barred.
The Supreme Court has stated that “[h]abeas review is an extraordinary remedy
and ‘will not be allowed to do service for an appeal.’” Bousley v. United States, 523 U.S.
614, 621 (1998) (citations omitted.) In order “to obtain collateral relief based on trial
errors to which no contemporaneous objection was made [and which were not raised on
appeal], a convicted defendant must show both”: (1) cause and (2) actual prejudice.
United States v. Frady, 456 U.S. 152, 167-168 (1982).
In order to show cause for collateral relief on issues that are procedurally barred
the Petitioner would have to prove ineffective assistance of counsel or an external
impediment that prevented counsel from raising the claim. Murray v. Carrier, 477 U.S.
478, 488, 492 (1986). The Supreme Court stated, “[s]o long as a defendant is represented
by counsel whose performance is not constitutionally ineffective under the standard
established in Strickland v. Washington . . . we discern no inequity in requiring him to
bear the risk of attorney error that results in a procedural default.” Carrier, 477 U.S. at
488. See also, United States v. Gonzalez-Largo, 2:07-CR-0014 JCM RJJ, 2012 WL
3245522 (D. Nev. Aug. 7, 2012) (citing to Carrier, 477 U.S. at 492) (“As petitioner
cannot show ineffective assistance of counsel, he must show ‘some external impediment
preventing counsel from constructing or raising the claim’ to establish sufficient cause to
excuse the procedurally defaulted § 2255 claim.”). Possible external impediments include
but are not limited to: “a showing that the factual or legal basis for a claim was not
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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
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reasonably available to counsel . . . or that some interference by officials made
compliance impracticable.” Carrier, 477 U.S. at 488 (internal citations omitted).
i.
Petitioner’s Motion fails to show cause to excuse
procedural default
Petitioner alleges that claims not previously presented on appeal were not
presented because the trial and appellate attorney was the same person and Counsel’s
assistance was ineffective. Mot. (Dkt. 1) at 6. Here, the Court found that Petitioner’s
counsel was not constitutionally ineffective based on the Strickland factors, therefore the
Petitioner must allege another basis for excusing the procedural default. As no external
impediment is alleged, there are no grounds upon which this Court can find cause to
excuse the procedural default.
ii.
Conclusion
As Petitioner is unable to establish cause to excuse the procedural default, it is
unnecessary to discuss whether Petitioner’s allegations of prosecutorial misconduct led to
actual prejudice. Because the allegations of prosecutorial misconduct are procedurally
barred, the § 2255 Motion on the grounds of prosecutorial misconduct are DENIED.
d. Appealability
Rule 11 of the Rules Governing Section 2255 Cases in the United States District
Courts reads as follows:
(a) Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the
final order, the court may direct the parties to submit arguments on whether a certificate
should issue. If the court issues a certificate, the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a
certificate, a party may not appeal the denial but may seek a certificate from the court of
appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial
does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal
an order entered under these rules. A timely notice of appeal must be filed even if the
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CIVIL MINUTES – GENERAL
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district court issues a certificate of appealability. These rules do not extend the time to
appeal the original judgment of conviction.
Under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” The
Supreme Court has held that this standard means a showing that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation
marks omitted).
Here, Petitioner has not made the requisite showing with respect to any of the
constitutional claims in the Petition. Accordingly, a Certificate of Appealability is denied.
IV.
Disposition
For the foregoing reasons, the Court DENIES Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody. Additionally, the Court
DENIES to issue a Certificate of Appealability.
The Clerk shall serve a copy of this minute order on counsel for all parties in this
action.
MINUTES FORM 11
CIVIL-GEN
Initials of Deputy Clerk: jcb
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