Driggers v. USA

Filing 63

MEMORANDUM DECISION AND ORDER denying 3 Motion to expunge fine and reduce sentence ; denying 56 Motion to Disqualify Counsel. ; denying 57 Motion for Reconsideration ; denying 58 Motion for Reconsideration ; denying 61 Motion for Hearing; denying as moot 62 Motion for release pending final resolution ; denying 7 Motion for Hearing. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff,

Case No. 2:09-cv-00468-EJL
2:06-cr-00173-EJL
MEMORANDUM DECISION AND
ORDER

v.
PAUL WILLIAM DRIGGERS,
Defendant/Petitioner.

Before the Court is Defendant/Petitioner Paul Driggers’ Motion (Dkt. 1) to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (supplemented by Motion to
Expunge Fine and Reduce Sentence, Dkt. 3). Also pending are Driggers’ Applications
for Hearing (Dkts. 7, 61), Motion to Disqualify Counsel (Dkt. 56), Motions for
Reconsideration (Dkts. 57, 58) of prior orders, Objection to Finding of Mootness and for
other relief (Dkt. 59), and Motion for Release Pending Final Resolution (Dkt. 62). The
government filed a response (Dkt. 12) to Driggers’ § 2255 Motion. The Court now
considers and rules on the pending motions as follows.

MEMORANDUM DECISION AND ORDER – 1

PROCEDURAL BACKGROUND
Defendant/Petitioner Driggers was indicted under 18 U.S.C. § 1958 for Use of
Interstate Commerce Facilities in the Commission of Murder-for-Hire, on August 8,
2006. (Dkt. 1 in criminal case).11 The Court appointed Federal Public Defender Kathleen
Moran to represent Driggers. (Dkt. 4). A jury trial was conducted January 9-12, 2007,
after which the jury reached a verdict of guilty. On January 23, 2007, the Court granted
Driggers’ oral motion for mistrial based on the jury having received an un-redacted
portion of a written transcript, which included material that Driggers argued was
prejudicial. (Dkt. 81).
Driggers and Driggers’ counsel filed motions for appointment of new counsel,
which the Court denied. (Dkts. 86, 91). A second jury trial began on February 20, 2007.
(Dkt. 105). At trial, although the Court denied Driggers’ request to testify in the
narrative, Driggers testified on his own behalf, answering roughly 26 pages of questions
Driggers had prepared, and which were posed by his counsel. (Dkt. 146-1 at 1-5). On
February 23, 2007, the jury returned a guilty verdict. (Dkt. 113).
Driggers filed a post-trial motion for judgment notwithstanding the verdict, or for a
new trial. (Dkt. 116). In that motion, Driggers argued that there was insufficient
evidence to support that he had intent to commit murder or that he caused another to
travel in interstate commerce, and also that the Court had improperly instructed the jury
on elements of the offense. (Dkt. 116). This Court denied the motion. (Dkt. 120).
1
1

Throughout the Background and Analysis sections of this decision, docket entries refer to those entered
in Defendant’s criminal matter, Case No. 2:06-cr-00173-EJL, unless otherwise indicated.
MEMORANDUM DECISION AND ORDER – 2

Driggers was sentenced on May 22, 2007 to 120 months in prison, followed by three
years of supervised release, and a fine of $17,500, plus a special assessment of $100.
(Dkt. 126).
Driggers appealed to the Ninth Circuit Court of Appeals. (Dkt. 127). The bases
for Driggers’ appeal were (1) error in jury instructions regarding elements of the crime,
(2) error in denying Driggers’ motion for new counsel or to proceed pro se, (3) error in
restricting the scope of cross-examination of cooperating witness. (Dkt. 128). On
February 18, 2009, the Ninth Circuit issued a published opinion affirming the verdict and
ruling against Driggers on all issues. United States v. Driggers, 559 F.3d 1021 (9th Cir.
2009); (Dkt. 158-1). In finding that Driggers’ trial did not violate his Sixth Amendment
rights, the appellate court noted that “[t]he evidence overwhelmingly contradicts
Driggers’ defense.” (Dkt. 158-1 at 8); United States v. Driggers, 559 F.3d 1021, 1025
(2009). The appellate court also concluded that instructional error to the jury, if any, was
harmless, applying the harmless error analysis in United States v. Munoz, 412 F.3d 1043,
1047 (9th Cir. 2005). See Driggers, 559 F.3d at 1026-28 (Circuit Judge Rawlinson, in
concurrence, expressing doubt as to any error).
Driggers petitioned for certiorari to the Supreme Court. That petition was denied
on May 26, 2009.
Driggers filed this Motion under § 2255 on September 16, 2009. The bases for his
motion are (1) denial of counsel in violation of the Sixth Amendment due to conflict

MEMORANDUM DECISION AND ORDER – 3

between Driggers and his trial counsel, (2) ineffective assistance of counsel at trial, (3)
violation of substantive due process through improper arguments by prosecutor at trial,
(4) violation of First Amendment rights through prosecution on the basis of “mere
words,” (5) lack of federal jurisdiction, (6) inappropriate conduct by the government and
erroneous rulings by the Court, (7) cumulative error, (8) actual innocence, and in a
supplemental motion (9) inaccuracy of trial transcripts.
ANALYSIS
1.

Request for Evidentiary Hearing
Where a petitioner’s allegations, “viewed against the record, fail to state a claim

for relief,” United States v. McMullen, 98 F.3d 1155 (9th Cir. 1996)(citations omitted), or
where summary dismissal is warranted, the Court may deny an evidentiary hearing.
Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985)(citation omitted); see also
Rule 4(b), Rules Governing Section 2255 Proceedings in the United States District Court.
To earn the right to a hearing, a movant “must make specific factual allegations which, if
true, would entitle him to relief on his claim.” United States v. Keller, 902 F.2d 1391,
1395 (9th Cir. 1990). As more fully expressed below, the Court finds that Driggers has
failed to raise allegations sufficient to warrant a hearing on issues before it. The Court
will therefore consider Driggers’ motions based upon the record and ample pleadings
filed by both Driggers and the government. Driggers’ requests for a hearing (Dkts. 7, 61)
will be denied.

MEMORANDUM DECISION AND ORDER – 4

2.

Motion Under § 2255
A.

Legal Standard

A prisoner asserting the right to be released “may move the court which imposed
the sentence to vacate, set aside or correct the sentence” under 28 U.S.C. § 2255(a).
Section 2255 provides four grounds that justify relief for a federal prisoner who
challenges the fact or length of his detention: (1) whether “the sentence was imposed in
violation of the constitution or laws of the United States;” (2) whether the court was
without jurisdiction to impose such sentence; (3) whether the sentence was “in excess of
the maximum authorized by law;” or (4) whether the sentence is “otherwise subject to
collateral attack.” See Hill v. United States, 368 U.S. 424, 428 (1962). Despite this
seemingly broad language, “the range of claims which may be raised in a § 2255 motion
is narrow.” United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981).
There is a distinction between constitutional and jurisdictional errors, and errors of
law or fact. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
593 (2d ed. 1982). If the alleged error is one of law or fact, then § 2255 does not provide
a basis for collateral attack “unless the claimed error constituted ‘a fundamental defect
which inherently results in a complete miscarriage of justice.’” United States v.
Addonizio, 442 U.S. 178, 185 (1979) (citing Hill, 368 U.S. at 428).
Section 2255 is not a substitute for appeal. Addonizio, 442 U.S. at 184. “Errors of
law which might require reversal of a conviction or sentence on appeal do not necessarily

MEMORANDUM DECISION AND ORDER – 5

provide a basis for relief under § 2255.” United States v. Wilcox, 640 F.2d 970, 973 (9th
Cir. 1981). Also, “when a matter has been decided adversely on appeal from a
conviction, it cannot be litigated again on a 2255 motion.” Odom v. United States, 455
F.2d 159, 160 (9th Cir. 1972)(citations omitted).
B.

Driggers’ Grounds for Relief
(1)

Violation of right to counsel

Driggers contends that his Sixth Amendment right to counsel was violated based
on his irreconcilable conflict with his court appointed attorney. Driggers raised this issue
on appeal; the Court of Appeals concluded that this Court did not abuse its discretion in
denying Driggers’ motion to appoint new counsel, and that this Court conducted an
adequate inquiry of the issue. The Court of Appeals further concluded that the conflict
between Driggers and his counsel did not result in a total lack of communication, citing
United States v. George, 85 F.3d 1433, 1438-39 (9th Cir. 1996). (Dkt. 158 at 1-2).
Because this issue has already been addressed on appeal, Driggers is precluded from relitigating the issue here. United States v. Egger, 509 F.2d 745, 748 (9th Cir. 1975).
(2)

Ineffective assistance of counsel

Driggers also asserts ineffective assistance of counsel as a basis to vacate his
sentence. Such a claim is grounds for habeas relief, and need not be raised on direct
appeal in order to preserve the issue for collateral attack. United States v. Withers, 638
F.3d 1055, 1066 (9th Cir. 2011) (citing Massaro v. United States, 538 U.S. 500, 505
(2003)).

MEMORANDUM DECISION AND ORDER – 6

Driggers has the burden of proving ineffective assistance of counsel, by showing
(1) that counsel performed so deficiently as to fall below an objective standard of
reasonableness; and (2) prejudice – that but for counsel’s deficiencies, the outcome would
have been different. Strickland v. Washington, 466 U.S. 668, 687-694 (1984). In
evaluating counsel’s performance, there is a strong presumption favoring a finding of
effectiveness. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)(citation omitted). A
difference of opinion as to trial tactics will not satisfy a finding of ineffectiveness. United
States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Regarding prejudice, the court
considers “the totality of the evidence . . . and presume[s] that the judge or jury acted
according to law.” Strickland, 466 U.S. at 695.
a. Failure to put on defense of mental instability and inability to
form criminal intent
According to Driggers, his counsel failed to investigate and put on evidence of his
mental instability, which Driggers argues would have shown that he was unable to form
the intent to commit the crime for which he was found guilty. In support, Driggers
presents numerous psychiatric records from between 1998 and 2004. (Exs. 700-727,
Dkts. 164-5, 164-6). However, the crime for which Driggers was convicted was
committed in 2006; according to the records provided by Driggers, notes dated in 2003
indicate that he is mentally stable. Also, Driggers reported to his probation officer, for
purposes of his Pre-Sentence Report, that he has had no mental health issues since 1997.
(Pre-Sentence Rept., Dkt. 24-2 in civil case at 25). Driggers did not challenge this aspect
of the report. (Objection, Dkt. 122).
MEMORANDUM DECISION AND ORDER – 7

In light of the strong presumption in favor of finding effectiveness, and given the lack
of evidence showing that counsel was deficient in investigating or failing to put on a
mental health defense, the Court finds that Driggers has failed to meet his burden of
demonstrating ineffective assistance of counsel on this aspect of his defense.
b. Failure to call key witnesses
Driggers argues that his counsel failed to interview and call key witnesses, including
character witnesses. Despite numerous declarations supporting his character, Driggers
has not shown prejudice caused by counsel’s failure to call these witnesses to testify. The
Court of Appeals, in rejecting Driggers’ appeal, noted the overwhelming evidence of his
guilt. Dkt. 158-1 at 8. Because Driggers cannot establish prejudice, his ineffective
assistance of counsel argument fails with respect to his counsel’s failure to call character
witnesses on his behalf at trial.
Driggers further contends that his counsel failed to call fact witness Craig McCann,
who could have testified that he introduced Driggers to Matthew Robinson (the man hired
to commit the murder-for-hire), but not for any criminal purpose. The Court finds that
this testimony, even if it had been introduced, is not reasonably likely to have made a
difference in the outcome of Driggers’ case. The pre-sentence investigation report
suggests evidence that could have undermined McCann’s credibility. (Pre-Sentence
Rept., Dkt. 24-2 at 11.) Even if McCann’s testimony had been presented without
challenge, Driggers has failed to show that it would have overcome the vast evidence

MEMORANDUM DECISION AND ORDER – 8

against Driggers at trial. The Court thus concludes that Driggers has failed to establish
prejudice from counsel’s failure to call McCann to testify on Driggers’ behalf.
According to Driggers, his trial counsel also failed to call witnesses Carolyn Jenke and
Clayton Anderson, who could have testified that he loved and cared about his ex-wife.
Again, information in the pre-sentence report supports that Driggers attempted to
influence Jenke’s testimony by contradicting a prior statement to police. (Pre-Sentence
Rept., Dkt. 24-2 at 11-12). Given Jenke’s potential impeachability, Driggers can show
neither deficiency of counsel, nor prejudice, in deciding not to call Jenke to testify at trial.
With respect to Clayton Anderson, Driggers cites a letter by Anderson revealing that
Driggers had a number of hurdles to regaining custody. (Driggers’ Ex. 13, Dkt. 164-6 at
33-34). The letter fails to show that counsel’s decision not to call Anderson as a witness
was in error, or otherwise prejudicial.
c. Failure to object or properly defend regarding tape-recorded
conversations with Robinson
The government introduced several tape-recordings and transcripts of conversations
between Driggers and Robinson, in which the two discussed the plan to murder Driggers’
ex-wife. (Trial Exs. 5, 5A, 6, 6A, B, C, 7, 7A). Driggers argues that his counsel failed to
properly object to the exhibits’ admission, or otherwise failed to present adequate
evidence of the context of those exhibits, to show that Driggers lacked intent to commit
murder-for-hire. (Driggers’ Motion, Dkt. 164 at 21-22). Regarding counsel’s nonobjection to admission of the recordings and transcripts, the Court finds that the
prosecution properly laid foundation for admission of the exhibits, through Robinson’s
MEMORANDUM DECISION AND ORDER – 9

testimony at trial. (Trans. at 221-24, 227-29, 236-37; Dkts. 14-3 at 4-7, 10-12, 19-20 in
civil case). Driggers’ counsel’s non-objection was neither deficient nor prejudicial. As to
counsel’s failure to present evidence regarding the context of Driggers’ recorded
conversations with Robinson, the Court notes that counsel did pursue the “context”
defense, which the appellate court reviewed and rejected as being contradicted
“overwhelmingly” by the evidence. Driggers, 559 F.3d at 1025.
d. Mishandling of other aspects of defense
Driggers argues that his counsel was ineffective in failing to convince the jury that the
$1,000 he deposited in Robinson’s bank account was a gift rather than payment for the
murder-for-hire scheme. (Motion at 21). In addition, Driggers argues that counsel failed
to effectively challenge that Driggers’ use of the term “green light” was a “verbal act”
under the law. First, the government did not argue at trial that Driggers’ use of the phrase
“green light” was a verbal act; instead, the government asserted that Driggers’ words
were evidence of intent for Robinson to proceed with the murder-for-hire scheme. Also,
given that Driggers testified on his behalf, and that his testimony addressed the bank
deposit and what he meant by saying “green light,” (Trans. at 358-59, 365-67; Dkt. 146-1
at 33-34, 40-42), the Court rejects Driggers arguments that counsel’s performance
prejudiced him. The Court therefore rejects this argument for ineffective assistance of
counsel.

MEMORANDUM DECISION AND ORDER – 10

e. Failure to argue entrapment
According to Driggers, his counsel erred by failing to argue entrapment, or to request
a jury instruction regarding entrapment. For an entrapment defense to succeed, it must be
that the government induced the crime, and that the defendant lacked a predisposition to
engage in the illegal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988) (other
citations omitted). Where, as here, a private citizen later becomes a government
informant, a defense of entrapment fails. United States v. Brandon, 633 F.2d 773, 777-78
(9th Cir. 1980). In this case, Robinson was not working for the government when
Driggers approached him for the murder-for-hire scheme. Also, the evidence – including
Driggers’ own testimony – supported that Driggers was predisposed to commit the crime.
(Trans. 366-67). Driggers’ argument regarding entrapment also fails.
For these reasons, Driggers has failed to demonstrate ineffective assistance of his
counsel at trial, as a basis to vacate his sentence.
(3)

Denial of Substantive Due Process

Driggers contends that the government violated his right to substantive due process
through improper use of evidence to show Driggers’ intent and guilt. According to
Driggers, the prosecution’s misconduct included (1) misconstruing evidence that Driggers
got Robinson’s telephone number from McCann, (2) improperly using Robinson’s
testimony about unrecorded statements by Driggers, and (3) making improper arguments

MEMORANDUM DECISION AND ORDER – 11

about Driggers’ deposit to Robinson’s bank account and Driggers’ “green light”
statement. (Motion at 51-52).
For a substantive due process claim to be cognizable, the alleged official
misconduct must “violate[ ] fundamental fairness and [be] ‘shocking to the universal
sense of justice.’” Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (citing Kinsella
v. United States, 361 U.S. 234, 246 (1960)). Here, the prosecution’s arguments and use
of evidence at trial, about which Driggers complains, are all within the realm of proper
conduct. Robinson’s testimony about Driggers’ unrecorded statements were admissible
as admissions by a party-opponent under Federal Rule of Evidence 801(a), (d)(2).
Driggers corroborated these unrecorded statements with subsequent conduct, and
statements that were recorded. (Trans. at 219, Dkt. 14-3 at 2 in civil case; Trans. at 28788, Dkt. 15-2 at 10-11 in civil case; Trial Exs. 5A, 6A, 7A).
The prosecution’s arguments as to the meaning of Driggers’ statements were
proper under Federal Rule of Evidence 801(d)(2). Evidence of Driggers’ association with
McCann – a convicted felon – used by the prosecution, was relevant and proper under
Federal Rule of Evidence 402. And the prosecution’s argument that Driggers’ $1,000
deposit to Robinson’s account was connected to the murder-for-hire scheme was also
proper given the evidence, including Driggers’ own testimony. The same can be said of
the prosecution’s argument that Driggers’ “green light” reference to Robinson was
intended as a go-ahead to murder his ex-wife. That Driggers had alternative arguments

MEMORANDUM DECISION AND ORDER – 12

does not support that the prosecution’s arguments were unfair, that they shocked
the conscience, or that they otherwise violated Driggers’ right to substantive due process.
The Court will therefore deny Driggers’ motion based on alleged violation of his
substantive due process rights.
(4)

First Amendment rights to free speech and association

According to Driggers, the government violated his First Amendment rights by
prosecuting him for mere words, unsupported by other evidence. As with Driggers’
substantive due process argument, it is clear that Driggers’ theory of his case contrasted –
and contrasts – with the prosecution’s theory of the case. But this distinction, with
nothing more, fails to support a constitutional violation. There is no basis for a claim that
Driggers was prosecuted for his speech. Rather, Driggers was prosecuted for the crime of
murder-for-hire, which was supported by a great deal of evidence which included
statements made by Driggers.
The Ninth Circuit has held that “speech that aids or abets criminal activity can be
prohibited.” United States v. Schiff, 379 F.3d 621, 626 (9th Cir. 2004) (citation omitted).
Also, “[t]he first amendment does not provide a defense to a criminal charge simply
because the actor uses words to carry out his illegal purpose.” United States v. Barnett,
667 F.2d 835, 842 (9th Cir. 1982). The appellate court found that the evidence, including
but not limited to Driggers’ statements, “overwhelmingly contradict[ed] Driggers’
defense.” Driggers, 559 F.3d at 1025. Accordingly, Driggers has failed to make a valid
First Amendment argument.

MEMORANDUM DECISION AND ORDER – 13

(5)

Federal jurisdiction

Although Driggers contends that this Court lacked jurisdiction to hear his case, his
arguments simply reiterate challenges to the sufficiency of evidence supporting the crime
with which he was charged. As discussed above, Driggers raised a sufficiency of
evidence argument on appeal. The appellate court rejected the argument; Driggers cannot
now re-litigate the issue under § 2255. Odom, 455 F.2d at 160.
(6)

District judge’s rulings at trial

Driggers challenges as unconstitutional, the rulings by this Court on motions and
objections raised at and before trial. The appellate court considered whether this Court
abused its discretion in restricting Driggers’ cross-examination of Robinson, erred in the
jury instruction regarding Driggers’ intent, or erred in denying Driggers’ requests to
conduct his own direct examination and to represent himself for purposes of presenting
his defense. On each of these issues, the appellate court found no error or abuse of
discretion. Driggers is precluded from re-litigating these issues under Odom.
As to Driggers’ argument that the Court impermissibly restricted the defenses he
could present, the record shows otherwise. This Court made clear to Driggers that
nothing prevented him from testifying about anything relevant and admissible. (Trans.,
Dkt. 146-1 at 2-3). Also, the Court permitted Driggers to compose a list of the questions
he wanted to answer at trial, and which Driggers’ counsel then asked of him on direct
examination. (Id., Dkt. 146-1 at 1-5). The Court therefore finds that Driggers has not

MEMORANDUM DECISION AND ORDER – 14

demonstrated a violation of substantive due process, or other impropriety in the Court’s
rulings at or before trial.
Regarding alleged improper admission of evidence under Federal Rules of
Evidence 403 and 404, the Court again finds no basis to vacate Driggers’ sentence. The
evidence at issue has largely been addressed in this Court’s discussion above, of
Driggers’ arguments concerning ineffective assistance of trial counsel, and improper
conduct by the prosecution. Driggers also argues that this Court improperly admitted
evidence of Driggers’ conversation with Robinson about molestation allegations against
him, and a statement in which Driggers references Hitler. These precise issues were not
addressed by the appellate court.
Where a defendant fails to raise claims on direct review, those claims are
procedurally defaulted unless he can demonstrate cause for and prejudice from the
procedural default, or actual innocence. United States v. Ratigan, 351 F.3d 957, 962
(2003)(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). As discussed below,
Driggers has not raised any argument or allegation to support actual innocence. The court
finds that Driggers has also failed to show cause and prejudice from his failure to
challenge the admission of statements about molestation allegations, and referencing
Hitler. At trial, this Court specifically limited admission of Driggers’ statements to those
concerning his motive or intent to commit the crime charged, to satisfy Rule 404(b).
Specifically, this Court said, “[t]he relevance and the reason it would be admitted is just

MEMORANDUM DECISION AND ORDER – 15

the fact that these charges were made, and, as I understand it, the children were
removed from the home, and that is what the defendant says in his statements to the
confidential informant or others, that he is upset about the fact this children had been
removed. That is the motive or intent allegedly for a crime of this nature.” (Trans., Dkt.
164-6 at 29-30; see also Trans., Dkt. 145-1 at 2).
The statements admitted at trial – both regarding molestation allegations and in
reference to Hitler – pertained to Driggers’ concern regarding custody of his children,
which therefore related to Driggers’ motive . The Court’s rulings thus fell squarely
within Rule 404(b), and Driggers cannot demonstrate prejudice from having failed to
raise the issue at trial or on appeal.
(7)

Cumulative error

Driggers argues that the sum of errors by the Court and improper tactics by the
prosecution had a negative cumulative impact, amounting to a miscarriage of justice.
(Motion at 82). The Ninth Circuit has found that, “although no single trial error
examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect
of multiple errors may still prejudice a defendant.” Mancuso v. Olivarez, 292 F.3d 939,
957 (9th Cir. 2002) (citation omitted). But where there is no constitutional error, there
can be no accumulation to a constitutional violation. See Fuller v. Roe, 182 F.3d 699,
704 (9th Cir. 1999) (overruled on other grounds by Shack v. McDaniel, 529 U.S. 473
(2000)). Here, Driggers has shown no constitutional error. The Court thus finds that,
even if Driggers could show multiple errors, he has not demonstrated a constitutional
violation.
MEMORANDUM DECISION AND ORDER – 16

(8)

Actual innocence

Driggers alleges that he is innocent of the crime for which he was convicted.
(Motion at 67-69). The Ninth Circuit has said that “[t]o establish actual innocence,
[defendant] must now demonstrate in light of all the evidence, including new evidence
that might be introduced by both sides, that ‘it is more likely than not that no reasonable
juror would have convicted him.’” Ratigan, 351 F.3d at 965 (citations omitted). Driggers
has introduced no new evidence or argument, and cites no basis from his trial or
otherwise, to support that he is in fact innocent. Accordingly, the Court finds that
Driggers has failed to state a valid claim of actual innocence.
(9)

Alteration of records, disqualification of state’s attorney, and
ineffectiveness of appellate counsel

Driggers seeks to disqualify the Assistant United States Attorney Lynne
Lamprecht on the basis that she improperly failed to inform the Court that significant
portions of the trial transcript were falsified or altered. (Motion, Dkt. 56). According to
Driggers, AUSA Lamprecht will likely be called to testify as a witness on this issue, and
should thus be removed from the case. The courts will not disqualify a government
attorney on the mere basis of alleged potential civil litigation. United States v. Wencke,
604 F.2d 607, 611 (9th Cir. 1979). In Wencke, the defendant sought to disqualify AUSA
Lipman, alleging that Lipman concealed and deleted evidence. Id. at 610-11. Finding no
credible evidence of impropriety or bad faith, the court there denied the defendant’s
request. Id.

MEMORANDUM DECISION AND ORDER – 17

Driggers contends that AUSA Lamprecht was informed that significant portions of
the trial transcript had been altered or were in error. (Motion, Dkt. 56 at 4). Driggers also
asserts that his appellate counsel was ineffective by not requesting en banc review of the
alteration of trial transcripts issue. The Court first addresses the allegation that trial
transcripts were altered.
Driggers argues in a supplement to his motion (Dkt. 8 in civil case), that on review
of the Ninth Circuit’s opinion from his appeal – which includes references to the record
of his trial – he believes someone has “criminally falsified the trial records
(transcriptions).” (Motion, Dkt. 8 in civil case). Driggers attaches what he declares are
true and accurate portions of the trial transcripts, based on his own knowledge and
memory. (Dkt. 7 in civil case).
Based on those attachments, when compared to the certified trial transcripts, the
Court finds no discrepancy. It appears that one of Driggers’ concerns was the appellate
court’s use of a bracketed phrase as a contextual explanation. (Trans., Dkt. 17-2 in civil
case at 4)(appellate court inserted “[child custody]” before “problem” to clarify the
problem being referenced; testimony leading up to that testimony reveals that the problem
discussed is indeed one concerning child custody). The Court finds that Driggers has not
stated a valid claim that there was an alteration in the trial transcript.
The other concerns identified by Driggers are with the appellate court’s
interpretation of his testimony. Again, Driggers has not identified actual discrepancies
between the trial transcript and his memory of what was said at trial. Instead, Driggers’

MEMORANDUM DECISION AND ORDER – 18

arguments simply show that he disagrees with the appellate court’s analysis of his
testimony. The Court again finds no valid claim of error or alteration to the transcript.
Accordingly, the Court finds no credible evidence of impropriety by AUSA
Lamprecht, and no ineffectiveness by appellate counsel in not seeking en banc review of
the issue. Driggers’ motions on these issues will be denied.
C.

Expungement of Fine and Reduction of Sentence

In a supplement to his Motion to Vacate Sentence, Driggers requests expungement
of the fine imposed on him at sentencing, as well as the length of his sentence. (Motion,
Dkt. 3 in civil case). Driggers’ basis for the motion is § 2255. Claims seeking relief
other than release from custody cannot be brought under § 2255. United States v. Thiele,
314 F.3d 399, 402 (2002) (holding that a defendant cannot collaterally attack his
restitution order in a § 2255 motion). Also, a request to reduce the length of a sentence
imposed within the statutory limits, as was Driggers’ here, is not cognizable under
§ 2255. See United States v. Fernandez, 941 F.2d 1488, 1494 (11th Cir. 1991). The
Court will therefore deny Driggers’ Motion (Dkt. 3 in civil case).
3.

Motions for Reconsideration
Driggers seeks reconsideration of the Court’s orders on a Motion to Transfer Case,

and a Motion for Judicial Notice. (Orders, Dkts. 52, 55 in civil case). The Ninth Circuit
has identified three reasons sufficient to warrant a court’s reconsideration of a prior order:
(1) an intervening change in controlling law; (2) the discovery of new evidence not

MEMORANDUM DECISION AND ORDER – 19

previously available; and (3) the need to correct clear or manifest error in law or fact, to
prevent manifest injustice. School Dist. No. 1J, Multnomah County, OR v. ACandS, Inc.,
5 F.3d 1255, 1263 (9th Cir. 1993). Upon demonstration of one of these grounds, the
movant must then come forward with “facts or law of a strongly convincing nature to
induce the court to reverse its prior decision.” Donaldson v. Liberty Mut. Ins. Co., 947
F.Supp. 429, 430 (D.Haw. 1996). Here, Driggers appears to raise only the third ground –
the need to correct clear error.
Regarding the Court’s order denying transfer of his case, Driggers argues that the
Court clearly did not read the entirety of his motion. The Court here clarifies that it has
reviewed the entirety of Driggers’ motions in this case. Driggers has not shown any error
in the Court’s decision and order denying his request to transfer his case to a district of
his choice. Having failed to identify clear error in the Court’s denial of his request to
transfer the case, Driggers’ motion to reconsider will be denied.
As to the Court’s order regarding judicial notice, the Court again finds no clear
error. As indicated in the Court’s order finding Driggers’ motion for judicial notice, the
legal standard to be applied in Driggers’ § 2255 motion is discussed herein; to the extent
that Driggers sought a prior determination of the applicable standard, such request was
properly denied as moot. Driggers having failed to demonstrate clear error, this motion to
reconsider will also be denied.

MEMORANDUM DECISION AND ORDER – 20

4.

Motion for Release Pending Final Disposition
Issuance of this Memorandum Decision and Order is a final disposition of the

matter. Accordingly, the Court will deny Driggers’ Motion for Release as moot.
ORDER
IT IS ORDERED THAT:
1. Defendant’s Motion to Vacate or for Reduction in Sentence (Dkt. 1)1(Dkt.552 in
criminal case) is DENIED.
2. Defendant’s Motion to Expunge Fine and Reduce Sentence (Dkt. 3) is DENIED.
3. Defendant’s Applications for a Hearing (Dkts. 7, 61) are DENIED.
4. Defendant’s Motion to Disqualify Counsel (Dkt. 56) is DENIED.
5. Defendant’s Motion (Dkt. 57) for Reconsideration of the Court’s Order (Dkt. 52)
on Motion to Transfer Case is DENIED.
6. Defendant’s Motion (Dkt. 58) for Reconsideration of the Court’s Order (Dkt. 55)
Denying Motion for Judicial Notice is DENIED.
7. Defendant’s Motion for Release Pending Final Resolution (Dkt. 62) is DENIED as
MOOT.
DATED: October 24, 2011

Honorable Edward J. Lodge
U. S. District Judge

1

Unless otherwise indicated, references to the docket in this Order section are to the civil case.
MEMORANDUM DECISION AND ORDER – 21