Draper v. USA

Filing 2

ORDER denying Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Signed by Judge Robert C. Jones on 6/16/2015. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
6

UNITED STATES OF AMERICA,

7

Plaintiff,

8
9

3:12-cv-00004-RCJ-VPC

vs.

ORDER

DANIEL DRAPER,

10

Defendant.

11
12

Pending before the Court is Defendant’s Motion to Vacate his sentence pursuant to 28

13

U.S.C. § 2255. (ECF No. 127). For the reasons contained herein, the Court denies the Motion.

14

I.

FACTS AND PROCEDURAL HISTORY

15

On January 16, 2014, a jury found Defendant Daniel Draper guilty of voluntary

16

manslaughter and for using a firearm during a crime of violence causing death. (ECF No. 91).

17

Defendant was thereafter sentenced to 360 months in prison, to be followed by three years

18

supervised release. (ECF No. 114). Defendant appealed his conviction and sentencing, arguing

19

that this Court had erred in denying Defendant’s request to admit evidence of his victim’s arrest

20

warrants and prior criminal behavior and in imposing the statutory maximum for the offenses.

21

The Ninth Circuit Court of Appeals affirmed the Court’s rulings as well as Defendant’s sentence.

22

(ECF No. 122). On June 4, 2015, Defendant filed the present Motion to Vacate.

23
24
1

Defendant raises four grounds challenging his conviction and sentencing under § 2255.

1
2

The first three grounds all allege ineffective assistance of counsel as to Defendant’s two trial

3

attorneys and as to his attorney on appeal. (See Mot. to Vacate 5–8, ECF No. 127). The fourth

4

ground claims that the Court improperly sentenced Defendant and mistakenly limited the

5

admission of evidence that Defendant claims supported his theory of self-defense. (Id. at 9).

6

II.

GROUNDS 1–3
Defendant in the present Motion raises for the first time that he suffered ineffective

7
8

assistance of counsel as to his trial attorneys, Michael Kennedy and John Stevenson. Defendant

9

claims these arguments were not presented during his direct appeal because of the ineffective

10

assistance of his appellate counsel, Loren Graham, who, Defendant claims, also failed to

11

properly communicate with Defendant during the appeal process.
Substantive legal arguments not raised on direct appeal are said to be “procedurally

12
13

defaulted” and cannot be raised later in a collateral attack. See Massaro v. United States, 538

14

U.S. 500, 504 (2003). There are exceptions to the procedural default rule when a defendant can

15

show (1) cause and prejudice, or (2) actual innocence. United States v. Ratigan, 351 F.3d 957,

16

962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 613, 622 (1998)). This has been

17

the test since Wainwright v. Sykes, 433 U.S. 72, 90–91 (1977).
“Cause” means “some objective factor external to the defense” that impeded the

18
19

defendant’s efforts to comply with the procedural requirement. McCleskey v. Zant, 499 U.S. 467,

20

493 (1991). Among the reasons that can constitute “cause” are government coercion, see United

21

States v. Wright, 43 F.3d 491, 497–99 (10th Cir. 1994), ineffective assistance of counsel, and a

22

“reasonable unavailability of the factual or legal basis for the claim,” McCleskey, 499 U.S. at

23

494.

24
2

1

Ineffective assistance of counsel is “cause” excusing procedural default only where the

2

failure rises to the level of a constitutional violation under Strickland. United States v. Skurdal,

3

341 F.3d 921, 925–97 (9th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

4

Ineffective assistance of counsel claims meeting the Strickland test are not procedurally

5

defaulted, and such claims can be brought for the first time under a § 2255 motion even if they

6

could also have been brought on direct appeal. Massaro, 528 U.S. at 504. Ineffective assistance

7

of counsel claims under § 2255 are essentially a special variety of “cause and prejudice” claims.

8

The prejudice required is the same, but the cause is based specifically on constitutionally

9

deficient counsel rather than some other miscellaneous “objective factor external to the defense.”

10
11

McCleskey, 499 U.S. at 493.
The Sixth Amendment right to effective assistance of counsel is violated when: (1)

12

counsel’s performance was so deficient so as not to constitute the “counsel” guaranteed by the

13

Sixth Amendment; and (2) the deficiency prejudiced the defense by “depriving the defendant of

14

a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. There is a “strong

15

presumption” of reasonable professional conduct. Id. at 698. When this presumption is

16

overcome and an attorney’s “unprofessional errors” are such that there is a “reasonable

17

probability” the result would have been different had the errors not occurred, the defendant has

18

been deprived of his Sixth Amendment rights. Kimmelman v. Morrison, 477 U.S. 365, 375

19

(1986). “Reasonable probability” is a lower standard than “more likely than not.” Nix v.

20

Whiteside, 475 U.S. 157, 175 (1986). The analysis does not focus purely on outcome. Lockhart

21

v. Fretwell, 506 U.S. 364, 369 (1993). The trial or appeal must also have been fundamentally

22

unfair or unreliable. Williams v. Taylor, 529 U.S. 362, 391–92 (2000). Counsel’s tactical

23

decisions with which a defendant disagrees do not rise to the level of ineffective assistance

24
3

1

unless the decisions are so poor as to meet the general test for constitutionally defective

2

assistance. See Dist. Attorney’s Office for Third Judicial Dist. V. Osborne, 557 U.S. 52, 85–86

3

(2009).

4

“Prejudice” means that “the constitutional errors raised in the petition actually and

5

substantially disadvantaged [a defendant’s] defense so that he was denied fundamental fairness.”

6

Murray v. Carrier, 477 U.S. 478, 494 (1986). A showing of prejudice requires demonstration of

7

a “reasonable probability that . . . the result of the proceedings would have been different. A

8

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

9

Vansickel v. White, 166 F.3d 953, 958–59 (9th Cir. 1999) (quoting Strickland, 466 U.S. at 694)).

10

The Court finds that appellate counsel’s failure to raise the ineffective assistance claims

11

during direct appeal does not constitute “cause and prejudice,” which means that those claims are

12

procedurally defaulted. Defendant argues that Graham shirked his duty of properly

13

communicating with him during the appeal and that Graham did not argue “all the points” that

14

Defendant “wanted him to.” (Mot. to Vacate 8). Defendant complains that Graham did not know

15

what issue to pursue at the Ninth Circuit, including challenges to the performance of Defendant’s

16

trial counsel.

17

Counsel certainly has a responsibility to communicate with a client and include that client

18

in the decision making process where appropriate. See Matter of Francovich, 575 P.2d 931, 932

19

(Nev. 1978). However, even if the Court were to find that Graham’s performance was lacking,

20

Defendant has not demonstrated prejudice. The deficiencies Defendant claims in both

21

Kennedy’s and Stevenson’s representation of him relates to their alleged failure to present

22

evidence supportive of Defendant’s self-defense theory. (See Mot. to Vacate 5–6). But it was the

23

Court’s rejection of this defense, not counsel’s failure to secure certain evidence that resulted in

24
4

1

the evidence not going before the jury. Thus, even had Graham included Defendant’s

2

contentions regarding his trial counsel on direct appeal, there is not a reasonable probability that

3

the Court of Appeals would have ruled any differently.
Furthermore, Defendant has not established that Graham performed deficiently in other

4
5

aspects of the appeal. It is clear from the Ninth Circuit’s opinion that Graham argued against

6

both the Court’s ruling on the self-defense theory and against Defendant’s sentence. (See 9th

7

Cir.’s Op. 3–4). It is therefore apparent that Graham did in fact address the “trial injustices”

8

Defendant claims he suffered, (Mot. to Vacate 8), despite Defendant’s arguments to the contrary.

9

And even if Graham chose not to argue every point that Defendant disagreed with during the

10

trial, there is no indication that such choices were anything more than tactical decisions.

11

Therefore, the Court finds that Defendant has failed to show that he suffered ineffective

12

assistance of counsel as to Graham’s representation.

13

III.

14

GROUND 4
Defendant’s fourth ground for vacating rests on this Court’s ruling on evidentiary issues

15

related to the theory of self-defense and also on its imposing the maximum sentencing. (Id. at 9).

16

Both of these arguments are precluded by res judicata. “Res judicata, also known as claim

17

preclusion, bars litigation in a subsequent action of any claims that were raised or could have

18

been raised in the prior action.” W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.

19

1997). “The doctrine is applicable whenever there is ‘(1) an identity of claims, (2) a final

20

judgment on the merits, and (3) identity or privity between the parties.’” Owens v. Kaiser Found.

21

Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting Glickman, 123 F.3d at 1192).

22
23

On appeal, Defendant challenged the Court’s decision on the self-defense theory as well
as the sentence imposed. As to the self-defense theory, the Ninth Circuit held that the admission

24
5

1

of any additional evidence regarding the victim’s background would not have changed the jury’s

2

verdict. (9th Cir. Op. 2). “The evidence at trial overwhelmingly negated the second prong of the

3

test for self-defense—whether Draper used no more force than was reasonably necessary.” (Id. at

4

3–5). As to the sentencing, the Ninth Circuit held that there was no procedural error in the

5

Court’s not “explicitly address[ing] every factor raised by the defense” and that “although the

6

sentence was six years above the high end of the applicable guidelines range, it was not

7

substantively unreasonable.” (Id. at 4). Thus, since the Ninth Circuit already ruled on the merits

8

of the claims Defendant now raises in the instant Motion, they are barred by the doctrine of res

9

judicata.

10

CONCLUSION

11

IT IS HEREBY ORDERED that Defendant’s Motion to Vacate (ECF No. 127) is

12
13

DENIED.
IT IS SO ORDERED.

14
15

Dated: _______________________
June 16, 2015

16
17

_____________________________________
ROBERT C. JONES
United States District Judge

18
19
20
21
22
23
24
6