Banks v. USA

Filing 3

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Roger T. Benitez on 5/08/2024.(All non-registered users served via U.S. Mail Service)(jpp)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

SOUTHERN DISTRICT OF CALIFORNIA

8
9

UNITED STATES OF AMERICA,
Respondent,

10
11

v.

12

ELISHAY BANKS,

13

Case No.: 18cr1228-BEN
22cv1133-BEN
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT A SENTENCE

Movant.

14
15
16

I.

BACKGROUND

Movant Elishay Banks filed a motion to vacate, set aside, or correct a sentence

17

pursuant to 28 U.S.C. § 2255. Having reviewed the motion, the Court finds that no

18

hearing is necessary, the motion is denied, and a certificate of appealability is denied.

19

After a jury trial, Banks was found guilty of violating 21 U.S.C. §§ 952 and 960 by

20

attempting to drive a car packed with 19.26 kilograms of 99% pure methamphetamine

21

wrapped in 46 packages and hid inside the body of the car. The Pre-Sentence Report

22

calculated a Sentencing Guideline range of 292 to 365 months. She was sentenced to 90

23

months in prison for counts 1 and 2, and 60 months to run concurrently with counts 1 and

24

2 for count 3. The conviction and sentence were affirmed on appeal.

25

Banks has timely filed her § 2255 motion alleging primarily ineffective assistance

26

of counsel. The Government filed an opposition to the motion. Banks has not filed a

27

traverse and she has no obligation to file a traverse.

28

1
18cr1228-BEN
22cv1133-BEN

1
2

II.

LEGAL PRINCIPLES

A motion to attack a conviction and sentence under § 2255 is a federal prisoner’s

3

substitute for a petition for a writ of habeas corpus. Josephine R. Potuto, The Federal

4

Prisoner Collateral Attack, 1988 B.Y.U. L. Rev. 37, 37 (1988). Under § 2255, a movant

5

is entitled to relief if the conviction and sentence: (1) was imposed in violation of the

6

Constitution or the laws of the United States; (2) was given by a court without

7

jurisdiction to do so; (3) was in excess of the maximum sentence authorized by law; or

8

(4) is otherwise subject to collateral attack. United States v. Speelman, 431 F.3d 1226,

9

1230 n.2 (9th Cir. 2005).

10

If it is clear that the movant has failed to state a claim, or has “no more than

11

conclusory allegations, unsupported by facts and refuted by the record,” a district court

12

may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789

13

F.2d 711, 715 (9th Cir. 1986); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007)

14

(providing that “if the record refutes the applicant’s factual allegations or otherwise

15

precludes habeas relief, a district court is not required to hold an evidentiary hearing”).

16

Courts deny a hearing where “the petitioner’s allegations, viewed against the record, fail

17

to state a claim for relief.” United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir.

18

1996). A district court may summarily dismiss a § 2255 motion if the allegations in the

19

motion when viewed against the record do not give rise to a claim for relief or are

20

“palpably incredible or patently frivolous.” United States v. Withers, 638 F.3d 1055,

21

1063 (9th Cir. 2011).

22

Banks seeks to set aside her conviction on the grounds that her attorney rendered

23

ineffective assistance. A criminal defendant is entitled to the effective assistance of

24

counsel at all stages of a criminal proceeding. Although she is entitled to an effective

25

defense she is not entitled to a perfect defense, and attorney errors that have no

26

significant effect or are not reasonably likely to have changed the outcome are not a basis

27

for § 2255 relief.

28

2
18cr1228-BEN
22cv1133-BEN

1

In order to sustain a claim of ineffective assistance of counsel, the movant has the

2

burden of showing both: (1) that defense counsel’s performance was deficient; and, (2)

3

that this deficient performance prejudiced the defense. Strickland v. Washington, 466

4

U.S. 668, 690-92 (1984). “Failure to satisfy either prong of the Strickland test obviates

5

the need to consider the other.” Redmond v. United States, No. 21-55142, 2022 U.S.

6

App. LEXIS 14293, at *3 (9th Cir. May 25, 2022) (quoting Rios v. Rocha, 299 F.3d 796,

7

805 (9th Cir. 2002)). To satisfy the first prong, the movant must show that counsel’s

8

advice was not “within the range of competence demanded of attorneys in criminal

9

cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). In considering this issue, there is a

10

“strong presumption that counsel’s conduct falls within a wide range of acceptable

11

professional assistance.” Strickland, 466 U.S., at 689. Moreover, post hoc complaints

12

about the strategy or tactics employed by defense counsel, or complaints that defense

13

counsel did not conduct a sufficiently vigorous pretrial investigation, are typically found

14

to be insufficient to satisfy the first prong of Strickland. See, e.g., United States v.

15

Simmons, 923 F.2d 934, 956 (2d Cir. 1991) (appellant’s displeasure with strategy

16

employed by trial counsel insufficient to establish ineffectiveness).

17

To satisfy the second prong, a movant must show that she was prejudiced by the

18

deficient representation she received. The focus of the prejudice analysis is on whether

19

the result of the proceeding was fundamentally unfair or unreliable because of counsel’s

20

ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Proving that a deficient

21

performance caused prejudice requires more than showing that the errors had some

22

conceivable effect on the outcome of the proceeding. Strickland, 466 U.S., at 693. “An

23

error by counsel, even if professionally unreasonable, does not warrant setting aside the

24

judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.

25

Thus, the test for ineffective assistance of counsel here is whether the assistance of

26

Banks’ attorney fell below the constitutional standard for effective assistance, and if so,

27

whether it is reasonably likely that the ineffective assistance changed the outcome of the

28

3
18cr1228-BEN
22cv1133-BEN

1

case. Lockhart, 506 U.S., at 373-75 (O’Connor, J., concurring) (“The determinative

2

question [is] whether there is ‘a reasonable probability that, but for counsel’s

3

unprofessional errors, the result of the proceeding would have been different.’”). A

4

defendant’s mere conclusory allegations that counsel failed to provide effective

5

assistance do not satisfy the highly demanding standard of deficient performance and

6

resulting prejudice. Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986).

7

III.

DISCUSSION

8

A. The Claims of Ineffective Assistance of Counsel

9

Banks had a right to present her ineffective assistance of counsel claim to the court

10

of appeals in her direct appeal. And she did. However, ineffective assistance of counsel

11

claims are not often decided on direct appeal because the trial record may be inadequate.

12

That is what happened here. Banks pursued and briefed her ineffective assistance of

13

counsel claim in her direct appeal but the court of appeals declined to rule on the claim

14

because the record was insufficient. “The current record is not sufficiently developed to

15

permit us to conclude whether Banks received ineffective assistance of counsel.” U.S. v.

16

Banks, Appeal No. 20-50026, *3-4 (9th Cir. Nov. 26, 2021) (memorandum disposition),

17

pet’n for rehearing denied (Dec. 29, 2021). The appellate court observed that a § 2255

18

motion “permits the defendant to develop a record as to what counsel did, why it was

19

done, and what, in any, prejudice results.” Id.

20

Consequently, she brings her claim before this Court. See Massaro v. United

21

States, 538 U.S. 500, 504 (2003) (“We hold that an ineffective-assistance-of-counsel

22

claim may be brought in a collateral proceeding under § 2255, whether or not the

23

petitioner could have raised the claim on direct appeal.”). Unfortunately, the record is no

24

more complete today than it was on direct appeal, despite Banks having ample time to

25

bolster and perfect a record. The entirety of Banks’ statement of the claim in this Court is

26

found in four excerpted pages from her prior appellate brief attached to her current §

27

2255 motion. There are no additional supporting documents or declarations.

28

4
18cr1228-BEN
22cv1133-BEN

1

In those four excerpted pages, Banks says that her attorney was ineffective at trial

2

because he failed to investigate a witness named Javier. But the claim is implausible.

3

This Court presided over the trial in this case. Defense counsel said that he was familiar

4

with the discovery concerning Javier and discussed Javier’s possible testimony -- all

5

before trial during motion in limine proceedings. Moreover, defense counsel adopted a

6

strategy at trial of highlighting numerous text messages between Banks and Javier in an

7

effort to cast blame on Javier and minimize blame on Banks.

8
9

Without evidence of some sort of failure to investigate by her attorney, relief
cannot be granted. On the present record, there is no evidence at all of a failure to

10

investigate. Certainly, a disagreement over counsel’s reasonable tactical decisions does

11

not constitute ineffective assistance of counsel. See Wildman v. Johnson, 26 F.3d 832,

12

840 (9th Cir. 2001). Banks has not cleared the high hurdle of demonstrating deficient

13

performance by counsel. And Banks has hardly begun to satisfy the prejudice

14

requirement. She does not even address the prejudice prong. Neither ineffectiveness nor

15

prejudice are proven here. Both are required for § 2255 relief. As a result, Banks’ claim

16

is palpably incredible and no hearing is required. Withers, 638 F.3d at 1063.

17
18

B. Two Additional Claims
Banks offers two additional undeveloped claims. Banks claims: (a) there was

19

insufficient evidence for her conviction; and (b) the sentence should have included

20

downward departures for acceptance of responsibility and minor role. No supporting

21

facts are described and no arguments are articulated. It does not matter. The claims

22

cannot succeed because the claims were already raised on direct appeal and denied on the

23

merits. Banks, No. 20-50026 at *2-3. “When a defendant has raised a claim and has

24

been given a full and fair opportunity to litigate it on direct appeal, that claim may not be

25

used as basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d 1132,

26

1139 (9th Cir. 2000). These claims are non-substantial and this Court is bound by the

27

judgment of the appellate court; no hearing is required.

28

5
18cr1228-BEN
22cv1133-BEN

1
2
3

IV.

Accordingly, the motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct the sentence is DENIED.

4
5

CONCLUSION

CERTIFICATE OF APPEALABILITY
The Court finds that Movant has not made the required substantial showing of the

6

denial of a constitutional right to justify the issuance of a certificate of appealability. The

7

controlling statute in determining whether to issue a certificate of appealability is 28

8

U.S.C. § 2253. In this case, reasonable jurists would not find the determination that

9

Movant is not entitled to relief under § 2255 debatable, wrong, or deserving of

10

encouragement to proceed further. Therefore, the Court declines to issue a certificate of

11

appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

12
13
14
15

IT IS SO ORDERED.
Date: May 8, 2024

__________________________________
HON. ROGER T. BENITEZ
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28

6
18cr1228-BEN
22cv1133-BEN