Banks v. USA
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Respondent,
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v.
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ELISHAY BANKS,
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Case No.: 18cr1228-BEN
22cv1133-BEN
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT A SENTENCE
Movant.
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I.
BACKGROUND
Movant Elishay Banks filed a motion to vacate, set aside, or correct a sentence
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pursuant to 28 U.S.C. § 2255. Having reviewed the motion, the Court finds that no
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hearing is necessary, the motion is denied, and a certificate of appealability is denied.
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After a jury trial, Banks was found guilty of violating 21 U.S.C. §§ 952 and 960 by
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attempting to drive a car packed with 19.26 kilograms of 99% pure methamphetamine
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wrapped in 46 packages and hid inside the body of the car. The Pre-Sentence Report
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calculated a Sentencing Guideline range of 292 to 365 months. She was sentenced to 90
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months in prison for counts 1 and 2, and 60 months to run concurrently with counts 1 and
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2 for count 3. The conviction and sentence were affirmed on appeal.
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Banks has timely filed her § 2255 motion alleging primarily ineffective assistance
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of counsel. The Government filed an opposition to the motion. Banks has not filed a
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traverse and she has no obligation to file a traverse.
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II.
LEGAL PRINCIPLES
A motion to attack a conviction and sentence under § 2255 is a federal prisoner’s
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substitute for a petition for a writ of habeas corpus. Josephine R. Potuto, The Federal
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Prisoner Collateral Attack, 1988 B.Y.U. L. Rev. 37, 37 (1988). Under § 2255, a movant
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is entitled to relief if the conviction and sentence: (1) was imposed in violation of the
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Constitution or the laws of the United States; (2) was given by a court without
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jurisdiction to do so; (3) was in excess of the maximum sentence authorized by law; or
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(4) is otherwise subject to collateral attack. United States v. Speelman, 431 F.3d 1226,
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1230 n.2 (9th Cir. 2005).
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If it is clear that the movant has failed to state a claim, or has “no more than
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conclusory allegations, unsupported by facts and refuted by the record,” a district court
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may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789
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F.2d 711, 715 (9th Cir. 1986); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
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(providing that “if the record refutes the applicant’s factual allegations or otherwise
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precludes habeas relief, a district court is not required to hold an evidentiary hearing”).
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Courts deny a hearing where “the petitioner’s allegations, viewed against the record, fail
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to state a claim for relief.” United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir.
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1996). A district court may summarily dismiss a § 2255 motion if the allegations in the
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motion when viewed against the record do not give rise to a claim for relief or are
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“palpably incredible or patently frivolous.” United States v. Withers, 638 F.3d 1055,
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1063 (9th Cir. 2011).
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Banks seeks to set aside her conviction on the grounds that her attorney rendered
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ineffective assistance. A criminal defendant is entitled to the effective assistance of
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counsel at all stages of a criminal proceeding. Although she is entitled to an effective
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defense she is not entitled to a perfect defense, and attorney errors that have no
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significant effect or are not reasonably likely to have changed the outcome are not a basis
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for § 2255 relief.
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In order to sustain a claim of ineffective assistance of counsel, the movant has the
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burden of showing both: (1) that defense counsel’s performance was deficient; and, (2)
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that this deficient performance prejudiced the defense. Strickland v. Washington, 466
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U.S. 668, 690-92 (1984). “Failure to satisfy either prong of the Strickland test obviates
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the need to consider the other.” Redmond v. United States, No. 21-55142, 2022 U.S.
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App. LEXIS 14293, at *3 (9th Cir. May 25, 2022) (quoting Rios v. Rocha, 299 F.3d 796,
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805 (9th Cir. 2002)). To satisfy the first prong, the movant must show that counsel’s
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advice was not “within the range of competence demanded of attorneys in criminal
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cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). In considering this issue, there is a
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“strong presumption that counsel’s conduct falls within a wide range of acceptable
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professional assistance.” Strickland, 466 U.S., at 689. Moreover, post hoc complaints
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about the strategy or tactics employed by defense counsel, or complaints that defense
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counsel did not conduct a sufficiently vigorous pretrial investigation, are typically found
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to be insufficient to satisfy the first prong of Strickland. See, e.g., United States v.
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Simmons, 923 F.2d 934, 956 (2d Cir. 1991) (appellant’s displeasure with strategy
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employed by trial counsel insufficient to establish ineffectiveness).
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To satisfy the second prong, a movant must show that she was prejudiced by the
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deficient representation she received. The focus of the prejudice analysis is on whether
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the result of the proceeding was fundamentally unfair or unreliable because of counsel’s
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ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Proving that a deficient
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performance caused prejudice requires more than showing that the errors had some
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conceivable effect on the outcome of the proceeding. Strickland, 466 U.S., at 693. “An
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error by counsel, even if professionally unreasonable, does not warrant setting aside the
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judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.
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Thus, the test for ineffective assistance of counsel here is whether the assistance of
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Banks’ attorney fell below the constitutional standard for effective assistance, and if so,
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whether it is reasonably likely that the ineffective assistance changed the outcome of the
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case. Lockhart, 506 U.S., at 373-75 (O’Connor, J., concurring) (“The determinative
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question [is] whether there is ‘a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.’”). A
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defendant’s mere conclusory allegations that counsel failed to provide effective
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assistance do not satisfy the highly demanding standard of deficient performance and
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resulting prejudice. Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986).
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III.
DISCUSSION
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A. The Claims of Ineffective Assistance of Counsel
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Banks had a right to present her ineffective assistance of counsel claim to the court
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of appeals in her direct appeal. And she did. However, ineffective assistance of counsel
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claims are not often decided on direct appeal because the trial record may be inadequate.
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That is what happened here. Banks pursued and briefed her ineffective assistance of
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counsel claim in her direct appeal but the court of appeals declined to rule on the claim
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because the record was insufficient. “The current record is not sufficiently developed to
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permit us to conclude whether Banks received ineffective assistance of counsel.” U.S. v.
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Banks, Appeal No. 20-50026, *3-4 (9th Cir. Nov. 26, 2021) (memorandum disposition),
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pet’n for rehearing denied (Dec. 29, 2021). The appellate court observed that a § 2255
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motion “permits the defendant to develop a record as to what counsel did, why it was
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done, and what, in any, prejudice results.” Id.
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Consequently, she brings her claim before this Court. See Massaro v. United
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States, 538 U.S. 500, 504 (2003) (“We hold that an ineffective-assistance-of-counsel
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claim may be brought in a collateral proceeding under § 2255, whether or not the
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petitioner could have raised the claim on direct appeal.”). Unfortunately, the record is no
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more complete today than it was on direct appeal, despite Banks having ample time to
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bolster and perfect a record. The entirety of Banks’ statement of the claim in this Court is
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found in four excerpted pages from her prior appellate brief attached to her current §
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2255 motion. There are no additional supporting documents or declarations.
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In those four excerpted pages, Banks says that her attorney was ineffective at trial
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because he failed to investigate a witness named Javier. But the claim is implausible.
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This Court presided over the trial in this case. Defense counsel said that he was familiar
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with the discovery concerning Javier and discussed Javier’s possible testimony -- all
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before trial during motion in limine proceedings. Moreover, defense counsel adopted a
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strategy at trial of highlighting numerous text messages between Banks and Javier in an
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effort to cast blame on Javier and minimize blame on Banks.
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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
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investigate. Certainly, a disagreement over counsel’s reasonable tactical decisions does
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not constitute ineffective assistance of counsel. See Wildman v. Johnson, 26 F.3d 832,
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840 (9th Cir. 2001). Banks has not cleared the high hurdle of demonstrating deficient
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performance by counsel. And Banks has hardly begun to satisfy the prejudice
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requirement. She does not even address the prejudice prong. Neither ineffectiveness nor
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prejudice are proven here. Both are required for § 2255 relief. As a result, Banks’ claim
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is palpably incredible and no hearing is required. Withers, 638 F.3d at 1063.
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B. Two Additional Claims
Banks offers two additional undeveloped claims. Banks claims: (a) there was
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insufficient evidence for her conviction; and (b) the sentence should have included
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downward departures for acceptance of responsibility and minor role. No supporting
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facts are described and no arguments are articulated. It does not matter. The claims
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cannot succeed because the claims were already raised on direct appeal and denied on the
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merits. Banks, No. 20-50026 at *2-3. “When a defendant has raised a claim and has
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been given a full and fair opportunity to litigate it on direct appeal, that claim may not be
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used as basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d 1132,
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1139 (9th Cir. 2000). These claims are non-substantial and this Court is bound by the
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judgment of the appellate court; no hearing is required.
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IV.
Accordingly, the motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct the sentence is DENIED.
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CONCLUSION
CERTIFICATE OF APPEALABILITY
The Court finds that Movant has not made the required substantial showing of the
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denial of a constitutional right to justify the issuance of a certificate of appealability. The
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controlling statute in determining whether to issue a certificate of appealability is 28
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U.S.C. § 2253. In this case, reasonable jurists would not find the determination that
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Movant is not entitled to relief under § 2255 debatable, wrong, or deserving of
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encouragement to proceed further. Therefore, the Court declines to issue a certificate of
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appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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IT IS SO ORDERED.
Date: May 8, 2024
__________________________________
HON. ROGER T. BENITEZ
United States District Judge
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