Lish v. USA
Filing
15
MEMORANDUM DECISION. The Court has assumed as true the facts asserted by Lish, but has held that he is still not entitled to any relief. Hence the Court will order that his case be dismissed in a separate Judgment as required by Rule 58(a). The Court will deny the Certificate of Appealability. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARTY LISH
Plaintiff,
Case No. 4:15-CV-079-BLW
v.
MEMORANDUM DECISION
UNITED STATES OF AMERICA,
Defendant.
INTRODUCTION
The Court has before it petitioner Lish’s motion under 28 U.S.C. §2255 to vacate
his conviction due to the ineffective assistance he received from his attorney. The motion
is fully briefed and at issue. For the reasons explained below, the Court will deny the
motion and order that the case be dismissed.
BACKGROUND
Following a jury trial, Lish was convicted of (1) a conspiracy to distribute less
than 50 grams of methamphetamine and (2) possession with intent to distribute a
controlled substance. See Special Verdict (Dkt. No. 84-1) in U.S. v. Lish CR-10-100BLW. On appeal the Ninth Circuit affirmed the conviction. U.S. v. Lish, 567 Fed.Appx.
532 (9th Cir. 2014) (unpublished disposition).
Lish has now filed a §2255 motion alleging that his counsel was ineffective for the
following reasons: (1) He failed to investigate the blue bag found in Lish’s car under the
passenger seat occupied by a known addict; (2) He failed to object to the juror GJ who
Memorandum Decision – page 1
was the sister-in-law of the presiding judge; (3) He failed to object to the admission of the
cell phone and text messages; (4) He failed to move for a mistrial after the prosecution
made a statement placing the burden of proof on Lish; (5) He failed to seek a mistrial
when the prosecution accused Lish of lying; (6) He failed to cite two Supreme Court
cases that would have prevented the search of his cell phone; (7) He failed to object to the
conspiracy charge – and to the conspiracy jury instruction – on the ground that there were
no co-conspirators, and that the jury instruction failed to note that co-conspirators could
not be law enforcement officers or informants; (8) He had a conflict of interest because
he also represented a witness; (9) He failed to challenge the indictment as charging two
crimes for the same conduct; and (10) He failed to call four witnesses who were ready to
testify on behalf of Lish.
LEGAL STANDARD
To prevail on his claim of ineffective assistance of counsel, Lish must demonstrate
that his attorney’s representation “fell below an objective standard of reasonableness,”
and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 688
(1984). A court considering a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was within the “wide range” of reasonable
professional assistance. Harrington v. Richter, 562 U.S. 86, 104 (2011). The
challenger's burden is to show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
With respect to prejudice, a challenger must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
Memorandum Decision – page 2
different.” Id. A reasonable probability “is a probability sufficient to undermine
confidence in the outcome.” Id. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. Counsel's errors must be “so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
The Supreme Court has observed that “[s]urmounting Strickland’s high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). It is “all too
tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.”
Richter, 562 U.S. at 105. The question is whether an attorney’s representation amounted
to incompetence under “prevailing professional norms,” not whether it deviated from
“best practices or most common custom.” Id.
ANALYSIS
Blue Bag
Lish complains that his attorney failed to investigate the true owner of the blue bag
found in his car that contained methamphetamine. But even assuming this failure was
objectively unreasonable because it would have revealed that Lish’s passenger was the
owner of the blue bag, there is no prejudice. The record contains evidence of
methamphetamine found in Lish’s shoe as well as evidence of Lish making sales of
methamphetamine. For example, Clyde Eldridge testified that he and Lish had an
agreement that Lish would provide him with methamphetamine for resale, and that Lish
actually provided the methamphetamine to Eldridge on a frequent basis. See Transcript
(Dkt. 151) at pp. 760-81. This evidence would independently support the jury verdict on
Memorandum Decision – page 3
the conspiracy and possession charges even without the evidence of the blue bag and its
contents.
Juror GJ
Lish complains that his attorney failed to question juror GJ about her ability to be
impartial and failed to seek to remove her. During voir dire, the Court informed counsel
that GJ was his sister-in-law. Later, after GJ had answered questions about her
background, the Court repeated its earlier statement: “Counsel, as I noted earlier, Ms.
Jones is my sister-in-law, which does not disqualify her from being on the jury, but I just
want counsel to know that.” See Transcript (Dkt. No. 215) at p. 19.
Lish does not point to any response by GJ during voir dire that would have
provided a reason to question her impartiality. Indeed, when the Court asked the jurors to
raise their hands if there was any reason why they could not be impartial, GJ did not
respond, an indication that she could be fair and impartial. Id. at pp. 94-98. The mere
fact that GJ was related by marriage to the Court was no reason for defense counsel to
seek removal. As Judge Kozinski has observed, “a juror could be a . . . relative of . . . the
judge, and still be perfectly fair and objective.” Dyer v. Calderon, 151 F.3d 970, 982 (9th
Cir. 1998) (en banc). Having no factual basis to accuse GJ of being biased, and having
no legal basis to challenge her on the ground of her relationship by marriage to the Court,
defense counsel cannot be charged with ineffective assistance for failing to (1) make a
futile attempt to remove GJ for cause, or (2) waste a preemptory challenge on such a
juror. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir.2005) (counsel cannot be
ineffective for failing to raise a meritless objection)
Memorandum Decision – page 4
Cell Phone and Text Messages
Lish complains that his attorney failed to object to the admission of the cell phone
and text messages. He argues that these items were introduced by the prosecution on
cross-examination during a line of questioning that was outside the scope of direct and
that should have been objected to by his counsel. But in direct examination, Lish said
that “I am not a meth dealer” and “I am not a meth distributor,” and at another point
during questioning by his counsel stated that “I have never dealt meth.” See Transcript
(Dkt. No. 152) at pp. 1013, 1017. In response, the prosecution introduced the cell phone
and the text messages to challenge Lish’s credibility concerning his testimony on these
points. The scope of cross examination includes not only the “subject matter of direct
examination” but also “matters affecting the witness’s credibility.” See Federal Rule of
Evidence 611(b). This Rule authorized the prosecution’s introduction of these items.
Moreover, the Ninth Circuit, in affirming Lish’s conviction, held that the admission of
the text messages was proper. See U.S. v Lish, supra at *3. All of these circumstances
demonstrate that the objection urged by Lish would have been futile. His attorney’s
failure to raise it cannot be deemed ineffective assistance. James v. Borg, 24 F.3d 20, 27
(9th Cir. 1994) (holding that “[c]ounsel’s failure to make a futile motion does not
constitute ineffective assistance of counsel”).1
Failure to Ask For Mistrial
1
Lish also argues that his counsel was ineffective for citing two Supreme Court cases that would have required
officers to get a warrant before searching Lish’s cell phone. But both cases were decided in 2014, long after the trial
in this case.
Memorandum Decision – page 5
Lish complains that his attorney failed to object and ask for a mistrial when the
prosecution sought to place the burden of proving innocence on him. The exchange Lish
complains about is set forth below:
Q:
[by prosecution] I’m going to ask you one more time. Why did Jamie Hendricks
ask you to bring a quarter ounce of methamphetamine to her if she knew you weren’t a
drug dealer?
A:
[by Lish] She should be here to testify against that. That’s what I got to say about
that.
Q:
Pardon me?
A:
She should be here to testify against it, but she’s not. Because you don’t want to
bring her in here because of that reason.
Q:
Your counsel can call her as a witness.
See Transcript (Dkt. No. 152) at pp. 1050-51. In this exchange, the prosecution points
out Lish’s failure to call Jamie Hendricks as a witness on his behalf. The Ninth Circuit
has expressly held that “[p]rosecutors may comment on the failure of the defense to
produce certain evidence to support an affirmative defense so long as it does not directly
comment on the defendant’s failure to testify.” Cook v. Schriro, 538 F.3d 1000, 1020
(9th Cir.2008). Given this holding in Cook, any motion for a mistrial would have been
futile because the prosecution limited its comments to Lish’s failure to produce testimony
to support his defense. Thus, defense counsel cannot be deemed ineffective on this
ground.
Memorandum Decision – page 6
Lish also accuses his attorney of being ineffective for failing to move for a mistrial
when the Court accused Lish of lying during his testimony. The Court had previously
ruled that Lish could not testify that Jamie Hendricks was having an affair with the
detective investigating the case. During Lish’s direct examination, Lish’s counsel asked
him whether he dated Hendricks, and Lish replied that he did until Hendricks “confessed
that she was having the affair with the detective.” See Transcript (Dkt. No. 152) at p.
1070. The Government objected and the Court was compelled to instruct the jury to
disregard Lish’s statement: “Ladies and gentlemen, Iʹm going to instruct you to just
completely disregard the last question and answer. It is not relevant to the proceedings,
and the court had previously so indicated. The question should not have been asked, and
the answer should not have been given.” Id. at p. 1071. The Court was not accusing Lish
of lying. The Court was merely instructing the jury to disregard testimony that the Court
had previously ruled was inadmissible. It would have been futile for defense counsel to
move for a mistrial at this point, and he cannot be deemed ineffective for failing to do so.
Indictment Charging Two Crimes for One Course of Conduct
Lish alleges that his attorney was ineffective for failing to challenge the indictment
as charging two crimes for a single course of conduct. The Court disagrees. The
conspiracy charge requires proof of an agreement, which is not an element of the
possession with intent to distribute charge. Conversely, the possession with intent to
distribute charge requires proof of actual possession, which is not an element of the
conspiracy charge. Since each charge contains an element not shared by the other, the
indictment is not multiplicious. See U.S. v. Roberts, 783 F.2d 767, 769 (9th Cir.1985)
Memorandum Decision – page 7
(citing Blockburger v. U.S., 284 U.S. 299, 304 (1932)) (holding that “[a]n indictment is
not multiplicious if each count requires proof of a fact which the other does not”).
Failure to Object to Jury Instructions
Lish alleges that his attorney should have challenged the instructions for
modifying the indictment. The superseding indictment charged that Lish engaged in a
conspiracy to distribute cocaine as well as methamphetamine, yet the jury instructions
only mentioned methamphetamine. The jury instructions were based on the evidence at
trial that focused entirely on Lish’s sales and possession of methamphetamine. The jury
instructions accorded with the trial testimony and evidence and hence any objection here
would be futile.
Failure to Challenge Lack of Instructions on Limitation of Co-Conspirators
Lish alleges that his attorney should have challenged the failure of the Court to
instruct the jury that a law enforcement officer or informant cannot be deemed a coconspirator. Assuming that such an instruction would be a correct statement of the law, it
would not have helped Lish. An ineffective assistance of counsel claim based on
counsel’s failure to object to a jury instruction requires a showing of prejudice. U.S. v.
Swanson, 943 F.2d 1070, 1073 (9th Cir.1991). There is none here. As discussed above,
the jury heard testimony from Clyde Eldridge that he and Lish had an agreement that
Lish would provide him with methamphetamine for resale. Eldridge was neither a police
officer nor an informant at the time. Thus, even with the jury instruction urged by Lish,
the jury still would have had sufficient facts on which to base its conviction. This
argument must therefore be rejected.
Memorandum Decision – page 8
Conflict of Interest & Failure to Call Witnesses
Lish argues that his attorney failed to call as a witness Jamie Hendricks along with
other witnesses who would have helped his case. Apparently Lish wanted Hendricks to
testify that she was having an affair with an investigating detective. But the Court ruled
that such evidence was inadmissible, so it would have been futile for Lish’s counsel to
call her for that purpose.2 Lish also argues that she could have testified that she never
saw Lish with the blue bag. But the Court has explained above that even if the jury
ignored the blue bag and its contents, there was still sufficient evidence to support the
convictions. Lish fails to explain specifically how his other witnesses that were not
called to testify would have helped his case.
Lish argues that his counsel had a conflict of interest because he also represented
Hendricks, and failed to call her to testify because of that conflict. But the Court has just
held that the failure to call Hendricks had no effect on the outcome of the trial. Hence
this argument must be rejected.
Conclusion
A district court may not summarily dismiss a petition without holding an
evidentiary hearing unless the petitioner fails to allege facts which, if true, would entitle
him to relief, or the petition, files and record of the case conclusively show that he is
entitled to no relief. U.S. v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015).
2
It appears that the Ninth Circuit affirmed the Court’s ruling in its decision on Lish’s appeal. U.S. v. Lish, supra at
* 3 (holding that “the limitation on his ability to impeach this evidence was not plain error”).
Memorandum Decision – page 9
Id. at n. 11; 28 U.S.C. § 2255. Here, as set forth above, the petition, files, and record
demonstrate conclusively that Lish is entitled to no relief. Throughout this decision, the
Court has assumed as true the facts asserted by Lish, but has held that he is still not
entitled to any relief. Hence the Court will order that his case be dismissed in a separate
Judgment as required by Rule 58(a).
Denial of Certificate of Appealability
To obtain a Certificate of Appealability under 28 U.S.C. §2253(c), Lish must
make “a substantial showing of the denial of a constitutional right.” Slack v. McDaniel,
529 U.S. 473, 483 (2000). The discussion above demonstrates that he has failed to meet
this standard. Hence, the Court will deny the Certificate of Appealability.
DATED: November 12, 2015
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
Memorandum Decision – page 10
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