Taken v. USA
Filing
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ORDER on 1 2255 Motion. Signed by Judge Gloria M. Navarro on 11/17/2021. (Copies have been distributed pursuant to the NEF - DRS)
Case 2:20-cv-02028-GMN Document 2 Filed 11/17/21 Page 1 of 10
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Respondent/Plaintiff,
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vs.
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DONNIE BRYANT,
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Petitioner/Defendant.
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Case No.: 2:06-cr-00234-GMN-GWF-1
ORDER
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Pending before the Court is Petitioner Donnie Bryant’s (“Petitioner”) pro se Motion to
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Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2020 Motion to
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Vacate”), (ECF No. 835). The Government filed a Response, (ECF No. 837), and Petitioner
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did not file a reply.
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I.
BACKGROUND
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On February 28, 2006, Petitioner was convicted on several counts of Violent Crimes in
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Aid of Racketeering Activity (“VICAR”), including murder, and numerous weapons offenses
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under 18 U.S.C. § 924(c), for acts he committed as a juvenile. (Superseding Indictment, ECF
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No. 18). The sentencing court, acting pursuant to mandatory sentencing statutes, sentenced
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Petitioner to life imprisonment for the VICAR murder count (Count 1), plus an additional 50
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years for the other offenses. (J., ECF No. 566).
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Petitioner appealed, arguing that the evidence was insufficient to support his convictions
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under VICAR, and that several of his VICAR and § 924(c) convictions were multiplicitous and
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violated the Double Jeopardy clause. See United States v. Bryant, 357 Fed. App’x. 945, 947
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(9th Cir. 2009). The Ninth Circuit affirmed in part, remanded with instructions to vacate in
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part, and dismissed in part.1 Id. at 948. On remand, the parties filed a stipulation to dismiss
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certain counts. (See Order on Stipulation, ECF No. 616). On March 10, 2010, the Court
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entered an amended judgment sentencing Petitioner to life imprisonment, plus an additional 40
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years for the other offenses. (2010 Am. J., ECF No. 617).
Following the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012),
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which held that the Eighth Amendment prohibits a juvenile from being subjected to a
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mandatory sentence of life in prison without parole, Petitioner filed a motion pursuant to 28
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U.S.C. § 2255 to vacate his sentence. (2013 Mot. Vacate, ECF No. 655). In that motion,
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Petitioner also argued that his convictions should be vacated because the district court gave an
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erroneous jury instruction regarding VICAR’s “purpose” element. The court granted
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Petitioner’s motion for re-sentencing in the light of Miller, but denied Petitioner’s motion to
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vacate the convictions. (Mins. of Proceedings, ECF No. 671); (Order, ECF No. 672). The
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Court subsequently sentenced Petitioner to 40 years in prison for his VICAR murder
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conviction, for a total of 80 years for all of the counts of conviction. (2014 Am. J., ECF No.
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694).
Petitioner timely filed an appeal regarding the denial of both his motion to vacate, and
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his amended sentence. In that appeal, Petitioner argued, inter alia, that the court failed in
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considering relevant sentencing factors under Miller and under § 3553(a), and that his sentence
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violated the Eight Amendment. United States v. Bryant, 609 F. App’x 925, 927–29 (9th Cir.
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2015). On April 27, 2015, the Ninth Circuit issued its decision, rejecting each of Petitioner’s
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arguments and affirming the district court. Id. Additionally, the Ninth Circuit noted: “It
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appears that the district court actually misapplied [18 U.S.C. § 924(c)], which should have
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subjected Bryant to an additional 110 years in prison, rather than 40. Because the government
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The Ninth Circuit dismissed one of Petitioner’s § 924 convictions, Count 36, explaining that, “[t]he
jury . . . returned a guilty verdict under § 924(c) on count 36. This count incorporated by reference count 16, for
which Bryant was never charged.” United States v. Bryant, 357 F. App’x 945, 948 (9th Cir. 2009).
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did not appeal this issue during Bryant’s first appeal, Bryant was able to retain the benefit of
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this miscalculation.” Id. at 928 n.2.
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On June 25, 2015, the U.S. Supreme Court announced its decision in Johnson v. United
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States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court ruled that the “residual clause”
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of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Johnson, 135 S. Ct. at
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2557. In light of Johnson, and pursuant to the District of Nevada’s First Amended General
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Order 2015-03 (“Amended General Order”), the Office of the Federal Public Defender for the
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District of Nevada (the “FPD”) filed an abridged 2255 Motion (“FPD’s Mot. Vacate”), (ECF
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Nos. 759, 779), on Petitioner’s behalf. The Court granted the FPD’s Motion in part by vacating
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Petitioner’s conviction for Using a Firearm During and in Relation to a Crime of Violence
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under 18 U.S.C. § 924(c)(3)(B), (Count 6), because the Supreme Court also invalidated §
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924(c)’s “residual clause” in United States v. Davis, 139 S. Ct. 2319, 2335–36 (2019). (Order
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11:19–12:12, ECF No. 826). The Court also vacated the 10-year sentence associated with
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Count 6, further reducing Petitioner’s overall sentence to 70 years.2 (Id. 14:16–21).
On February 29, 2016, Petitioner filed another 2255 Motion (“2016 Mot. Vacate”),
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(ECF No. 755), arguing that: (1) the sentencing court abused its discretion in sentencing him
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without considering the mandatory sentencing factors under Montgomery v. Louisiana; (2) his
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sentence violates the Eighth Amendment; (3) his conviction and sentence for VICAR murder
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cannot stand because his prior VICAR murder adjudication was “expunged”; (4) the
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Government was prohibited from charging him with VICAR murder because, at the time he
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committed that offense, he was on “juvenile probation” for a previous VICAR murder; and (5)
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his trial attorney was ineffective during plea negotiations. (2016 Mot. Vacate at 10–16, ECF
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No. 755). The Court denied Petitioner’s 2016 Motion because claims one and two were
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The 70-year sentence reflects the 40 years for Petitioner’s VICAR murder conviction, and the reduction from
40 to 30 years for his additional § 924(c) offenses after the Court vacated Count 6’s 10-year sentence.
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successive, and Petitioner procedurally defaulted on claims three, four, and five. (Order 5:12–
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10:15, ECF No. 826).
Petitioner now brings the present § 2255 Motion, which again alleges that his conviction
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should be vacated for various constitutional violations. (See generally 2020 Mot. Vacate, ECF
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No. 835).
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II.
LEGAL STANDARD
Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which
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imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a
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motion may be brought on the following grounds: “(1) the sentence was imposed in violation of
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the Constitution or laws of the United States; (2) the court was without jurisdiction to impose
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the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the
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sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d
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1031, 1038 (9th Cir. 2010). When a petitioner seeks relief pursuant to a right newly recognized
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by a decision of the United States Supreme Court, a one-year statute of limitations applies. 28
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U.S.C. § 2255(f)(3). That one-year limitation begins to run from “the date on which the right
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asserted was initially recognized by the Supreme Court.” Id. § 2255(f)(3).
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III.
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DISCUSSION
Petitioner’s 2020 Motion to Vacate argues that his conviction should be vacated for five
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reasons: (1) the Amended Judgment, (ECF No. 828), following the Court’s vacatur of Count 6
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still erroneously reflects a total sentence of 80 years and a fine of $1,100; (2) Petitioner’s
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sentence violates the Eighth Amendment because it “contravenes the logic of Miller;” (3)
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Petitioner was deprived of due process when the Court failed to appoint a neuropsychological
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expert to develop mitigating evidence at trial; (4) Petitioner was deprived of due process
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because the Court’s analysis during resentencing was inconsistent with Miller; and (5)
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ineffective assistance of counsel for the failure to impeach witnesses at trial. (2020 Mot. Vacate
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at 3–11, ECF No. 835). The Court will discuss each claim in turn.
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A. Claim One
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As an initial matter, the Court agrees with Petitioner’s first claim that a clerical error
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exists in the Amended Judgment; the Amended Judgment reflects a total sentence of 80 years
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and a fine of $1,100, even though the Court vacated Count 6, which should have reduced
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Petitioner’s total sentence to 70 years and a fine of $1,000. (See Amended J., ECF No. 828); (J.,
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ECF No. 827) (vacating Petitioner’s conviction for Count 6 and his sentence of 10 years as to
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the same). Accordingly, the Court will construe Petitioner’s Motion as to this issue as a request
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under Federal Rule of Criminal Procedure 36 to correct a clerical error. See Fed. R. Crim. P. 36
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(“After giving any notice it considers appropriate, the court may at any time correct a clerical
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error in a judgment, order, or other part of the record, or correct an error in the record arising
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from an oversight or omission.”). The Government also agrees that this clerical error exists and
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should be corrected. (Resp. 1:19–2:3, ECF No. 837). Therefore, the Court grants Petitioner’s
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Motion to correct the clerical error, and the Court will amend the judgment accordingly.
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B. Claims Two, Three, and Four
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Petitioner’s claims two, three, and four have already been argued in this Court and on
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direct appeal, multiple times, and thus are barred as successive claims. See United States v.
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Bryant, 609 Fed. Appx. 925 (9th Cir. 2015); (Order 5:12–7:6, ECF No. 826). Under the
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successive claim rule, “[w]hen a defendant has raised a claim and has been given a full and fair
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opportunity to litigate it on direct appeal, that claim may not be used as a basis for a subsequent
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§ 2255 petition.” United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (citing United
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States v. Redd, 759 F.2d 699, 700–01 (9th Cir. 1985)). Restating an issue by using different
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language does not make a previously considered claim reviewable. United States v. Currie, 589
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F.2d 993, 995 (9th Cir. 1979).
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Here, the issues raised by Petitioner in claims two, three, and four of his 2020 Motion to
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Vacate have already been raised on direct appeal to the Ninth Circuit in United States v. Bryant,
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609 Fed. Appx. 925 (9th Cir. 2015). For example, in claims two and four, Petitioner argues
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that his new sentence “contravenes the logic of Miller” and violates the Eighth Amendment
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because the sentence fails to provide him with a meaningful opportunity to reenter society.
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(2020 Mot. Vacate at 5–6, 7–9). However, the Ninth Circuit already decided that the district
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court properly considered all the necessary Miller factors at Petitioner’s re-sentencing and that
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“[Petitioner]’s sentence does not violate the Eighth Amendment.” Bryant, 609 Fed. Appx. at
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927 (emphasis added).3 Further, in claim three, Petitioner alleges that his constitutional rights
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were violated when the Court denied his request to appoint a neuropsychological expert at his
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resentencing hearing. (2020 Mot. Vacate at 6–7). Nonetheless, the Ninth Circuit previously
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held that “to the extent [Petitioner] argues that the district court erred under Miller by refusing
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to grant a continuance so that [he] could receive a psychiatric examination, the district court did
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not abuse its discretion in denying the request.” Bryant, 609 Fed. Appx. at 927.
In sum, Petitioner has already been given a full and fair opportunity to litigate the issues
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reiterated in claims two, three and four. As such, Petitioner is precluded from re-litigating
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these issues in a § 2255 motion, and thus, the Court denies his Motion as to these grounds for
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relief. See Hayes, 231 F.3d at 1139.
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C. Claim Five
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In claim five, Petitioner argues, for the first time, that his trial counsel, Cheryl Field-
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Lang, provided ineffective assistance with respect to her examination of witnesses. (2020 Mot.
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Vacate at 9–11). Specifically, Petitioner explains that his counsel failed to properly investigate
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This is the second § 2255 petition that Petitioner has filed following the Ninth Circuit’s decision in United
States v. Bryant. (See 2020 Mot. Vacate, ECF No. 835); (2016 Mot. Vacate, ECF No. 755). In Petitioner’s 2016
Motion to Vacate, the Court similarly rejected arguments that the district court failed to properly re-sentence
Petitioner under Miller as successive claims. (See Order 5:12–7:6, ECF No. 826).
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and impeach government witnesses with prior inconsistent statements, even when Petitioner
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pointed out the inconsistencies in the witnesses’ statements. (Id.). In response, the Government
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argues that Petitioner procedurally defaulted on this claim because he could have raised it
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earlier and demonstrates no cause or prejudice to justify the delay. (Resp. 10:24–11:2).
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In general, when a petitioner fails to raise a legal argument on direct appeal, the
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“procedural default” rule applies to bar collateral review under § 2255, unless the petitioner can
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show cause and prejudice or actual innocence. Massaro v. United States, 538 U.S. 500, 504
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(2003). However, “an ineffective-assistance-of-counsel claim may be brought in a collateral
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proceeding under § 2255, whether or not the petitioner could have raised the claim on direct
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appeal.” Id. Accordingly, here, Petitioner has not procedurally defaulted on his ineffective
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assistance of counsel claim, and the Court may consider the merits of his arguments. Franco v.
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United States, No. 12CR0236-GPC, 2020 WL 6203096, at *3 (S.D. Cal. Oct. 22, 2020)
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(“ineffective assistance of counsel claims are not procedurally defaulted if not raised on direct
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review, [and] the Court may consider the merits of Petitioner’s ineffective assistance of counsel
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claim”).
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To establish ineffective assistance of counsel, a petitioner must first show that counsel’s
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conduct was not “within the range of competence demanded of attorneys in criminal cases.”
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Strickland v. Washington, 466 U.S. 668, 687 (1984) (citations omitted). Second, a petitioner
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must also show that he was prejudiced by that performance. See id. at 692. Under this standard,
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the question is whether “counsel’s representation fell below an objective standard of
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reasonableness,” and the Court’s inquiry begins with a “strong presumption that counsel’s
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conduct [falls] within the wide range of reasonable representation.” United States v. Ferreira–
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Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987) (citations omitted). “[T]he standard for judging
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counsel’s representation is a most deferential one” because “the attorney observed the relevant
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proceedings, knew of materials outside the record, and interacted with the client, with opposing
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counsel, and with the judge.” Harrington v. Richter, 562 U.S. 86, 105 (2011). Petitioner must
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also demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
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Here, Petitioner has failed to establish an ineffective assistance of counsel claim under
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the Strickland standard. In his Motion, Petitioner identifies three instances where his counsel
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potentially failed to impeach a witness: (1) trial counsel failed to impeach LaQuinta
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Washington, a witness to the drive-by shooting, with prior inconsistent statements after “her
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version of events changed;” (2) trial counsel failed to investigate whether witness Antwon Hunt
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was “coached” prior to testifying before the grand jury; and (3) trial counsel failed to impeach
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Jarbery Carter, who testified that Petitioner shot at him, about the meaning of Carter’s tear-drop
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face tattoo. (2020 Mot. Vacate at 9–11). While “an attorney’s failure to prepare for and
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challenge the testimony of a critical witness may be so unreasonable as to violate both prongs
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of the Strickland test,” in this case, Petitioner has not demonstrated how his trial counsel’s
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examination of Washington, Hunt, and Carter was so deficient that it rises to that level. Silva v.
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Woodford, 279 F.3d 825, 833 (9th Cir. 2002) (emphasis added). For example, Petitioner does
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not explain the alleged inconsistencies in Washington’s “version of events,” or the content of
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Hunt’s testimony, or the importance Carter’s face tattoo. Without presenting a factual basis to
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support his arguments, Petitioner can neither overcome the “strong presumption” that his
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representation was reasonable nor support a claim that his attorney’s conduct fell outside of an
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objective standard of representation. Ferreira–Alameda, 815 F.2d at 1253.
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Further, even if Petitioner were able to establish that trial counsel’s examination of
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Washington, Hunt, and Carter was not “within the range of competence demanded of attorneys
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in criminal cases,” Petitioner does not attempt to establish a reasonable probability that, “but
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for counsel’s unprofessional errors, the result of the proceeding would have been different.”
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Strickland, 466 U.S. at 694. Accordingly, the Court finds that Petitioner’s ineffective
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assistance of counsel claim is without merit.
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C.
Certificate of Appealability
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As discussed above, the Court will amend Petitioner’s judgment to reflect a total
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sentence of 70 years and a fine of $1,000. To the extent that Petitioner seeks to appeal other
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determinations made herein, the Court will not issue a certificate of appealability, which is
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required for Petitioner to proceed with an appeal of this Order. 28 U.S.C. § 2253(c)(1); Fed. R.
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App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950–51 (9th Cir. 2006); see also
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United States v. Mikels, 236 F.3d 550, 551–52 (9th Cir. 2001). This means that Petitioner must
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make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
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Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). He bears the burden of demonstrating that
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the issues are debatable among jurists of reason; that a court could resolve the issues
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differently; or that the questions are adequate to deserve encouragement to proceed further.
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Slack, 529 U.S. at 483–84.
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The Court has considered the issues raised in Petitioner’s 2020 Motion to Vacate with
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respect to whether they satisfy the standard for issuance of a certificate of appealability. The
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Court determines that the issues do not meet that standard, and therefore DENIES Petitioner a
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certificate of appealability.
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IV.
CONCLUSION
IT IS HEREBY ORDERED that Petitioner’s pro se 2255 Motion, (ECF No. 835), is
GRANTED in part and DENIED in part, to the extent consistent with this Order.
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IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
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DATED this _____ day of November, 2021.
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___________________________________
Gloria M. Navarro, District Judge
United States District Court
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