Williams v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Roger T. Benitez on 2/28/2018.(All non-registered users served via U.S. Mail Service)(anh)

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FILED

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2018HAR -6 AH 8: '4Z

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ClERK US DISTRICT COURT

SOUTHERN DIS TRiCT Of CALIFORNIA

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT LEE WILLIAMS,

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vs.

Case Nos. 15cv2126 BEN
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Movant,

ORDER DENYING § 2255
MOTION

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UNITED STATES OF AMERICA,
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Res ondent.
INTRODUCTION

Movant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct

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a sentence. The Government filed a response. Movant filed a reply. The Court

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finds no evidentiary hearing is necessary and denies the motion.

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DISCUSSION

Movant was tried by a jury and found guilty of violating 18 U.S.C.

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§ 2252(a)(2) (receipt of images of minors engaged in sexually explicit conduct) and

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§ 2252(a)(4)(B) (possession of matters containing images of sexually explicit

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26 appeal. Movant now contends that: (1) his appellate attorney provided ineffective
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Ineffective Assistance of Appellate Counsel. Movant was appointed Mr.

2 Kurt Hermansen, Esq., to represent him on appeal. Mr. Hermansen is a very skilled
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attorney. He is no stranger to the task of evaluating appellate arguments. In fact,

4 Mr. Hermansen served as a habeas corpus staff attorney for the district court in the
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1990's. Mr. Hermansen consulted with Movant about issues for appeal. Though

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ultimately unavailing, Mr. Hermansen filed a 98-page opening appeal brief, and a

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67-page reply appeal brief, raising five issues for reversal.

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Appellate briefing included a 13-page argument that Movant wanted Mr.

9 Hermansen to argue: i.e., that the search warrant should have been suppressed. That
1O issue was decided against Movant by the Ninth Circuit Court of Appeals. It is the
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same issue he raises once again in the present § 2255 motion. Movant has

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demonstrated neither ineffective assistance of his appellate counsel, nor prejudice.

13 On the contrary, Movant received excellent assistance of appellate counsel.
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Therefore, the § 2255 motion fails to satisfy the two-pronged ineffective assistance

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of counsel test set out in Strickland v. Washington, 466 U.S. 668 (1984). See

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also Mitchell v. US., 790 F.3d 881, 885 (9th Cir. 2015) ("defense team conducted a

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professional-caliber investigation and then, facing unenviable choices, made a

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reasonable strategic decision .... Strategic decisions such as this do not support a

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claim of ineffective assistance of counsel").

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Judicial Deception Required Franks Hearing. Movant also argues that his
appellate counsel was ineffective because he should have raised for appeal the

22 district court's denial of a Franks hearing for the state search warrant based on his
23 answers to the police employment questionnaire. This claim would have failed.
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"The law does not require counsel to raise every available nonfrivolous defense.

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Counsel also is not required to have a tactical reason - above and beyond a

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reasonable appraisal of a claim's dismal prospects for success - for recommending

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that a weak claim be dropped altogether." Knowles v. Mirzayance, 556 U.S. 111,

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127 (2009) (citations omitted). In the same vein, it is clear that the failure to take
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1 futile action can never be deficient performance. Sexton v. Cozner, 679 F.3d 1150,
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1157 (9th Cir. 2012).
The affidavit supporting the search warrant was accurate. Clearly, it was not

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ineffective assistance to not raise it on appeal. Regardless, Fourth Amendment

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exclusionary rule claims are generally not even cognizable on habeas review.

See

6 Davis v. US., 564 U.S. 229 (2011) (citations omitted) ("Exclusion is not a personal
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constitutional right, nor is it designed to redress the injury occasioned by an

8 unconstitutional search. The rule's sole purpose, we have repeatedly held, is to
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deter future Fourth Amendment violations."). In Stone v. Powell, 428 U.S. 465, 494

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(1976), the Supreme Court recognized that habeas proceedings are so far removed

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from the offending conduct that any deterrent effect is outweighed by the societal

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cost of ignoring reliable, trustworthy evidence and the judicial burden of litigating

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collateral issues. Where defendant has had an opportunity for full and fair litigation

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of a Fourth Amendment claim, habeas corpus relief is not available on the ground

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that the evidence obtained in an unconstitutional search or seizure was introduced at

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his trial. Id.
CONCLUSION

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The motion is denied. The Court declines to issue a certificate of
appealability.
IT IS SO

DATED:

,iE,r.

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