Draper v. USA
Filing
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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)
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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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Plaintiff,
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3:12-cv-00004-RCJ-VPC
vs.
ORDER
DANIEL DRAPER,
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Defendant.
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Pending before the Court is Defendant’s Motion to Vacate his sentence pursuant to 28
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U.S.C. § 2255. (ECF No. 127). For the reasons contained herein, the Court denies the Motion.
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I.
FACTS AND PROCEDURAL HISTORY
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On January 16, 2014, a jury found Defendant Daniel Draper guilty of voluntary
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manslaughter and for using a firearm during a crime of violence causing death. (ECF No. 91).
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Defendant was thereafter sentenced to 360 months in prison, to be followed by three years
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supervised release. (ECF No. 114). Defendant appealed his conviction and sentencing, arguing
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that this Court had erred in denying Defendant’s request to admit evidence of his victim’s arrest
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warrants and prior criminal behavior and in imposing the statutory maximum for the offenses.
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The Ninth Circuit Court of Appeals affirmed the Court’s rulings as well as Defendant’s sentence.
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(ECF No. 122). On June 4, 2015, Defendant filed the present Motion to Vacate.
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Defendant raises four grounds challenging his conviction and sentencing under § 2255.
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The first three grounds all allege ineffective assistance of counsel as to Defendant’s two trial
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attorneys and as to his attorney on appeal. (See Mot. to Vacate 5–8, ECF No. 127). The fourth
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ground claims that the Court improperly sentenced Defendant and mistakenly limited the
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admission of evidence that Defendant claims supported his theory of self-defense. (Id. at 9).
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II.
GROUNDS 1–3
Defendant in the present Motion raises for the first time that he suffered ineffective
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assistance of counsel as to his trial attorneys, Michael Kennedy and John Stevenson. Defendant
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claims these arguments were not presented during his direct appeal because of the ineffective
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assistance of his appellate counsel, Loren Graham, who, Defendant claims, also failed to
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properly communicate with Defendant during the appeal process.
Substantive legal arguments not raised on direct appeal are said to be “procedurally
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defaulted” and cannot be raised later in a collateral attack. See Massaro v. United States, 538
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U.S. 500, 504 (2003). There are exceptions to the procedural default rule when a defendant can
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show (1) cause and prejudice, or (2) actual innocence. United States v. Ratigan, 351 F.3d 957,
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962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 613, 622 (1998)). This has been
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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
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defendant’s efforts to comply with the procedural requirement. McCleskey v. Zant, 499 U.S. 467,
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493 (1991). Among the reasons that can constitute “cause” are government coercion, see United
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States v. Wright, 43 F.3d 491, 497–99 (10th Cir. 1994), ineffective assistance of counsel, and a
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“reasonable unavailability of the factual or legal basis for the claim,” McCleskey, 499 U.S. at
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494.
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Ineffective assistance of counsel is “cause” excusing procedural default only where the
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failure rises to the level of a constitutional violation under Strickland. United States v. Skurdal,
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341 F.3d 921, 925–97 (9th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
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Ineffective assistance of counsel claims meeting the Strickland test are not procedurally
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defaulted, and such claims can be brought for the first time under a § 2255 motion even if they
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could also have been brought on direct appeal. Massaro, 528 U.S. at 504. Ineffective assistance
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of counsel claims under § 2255 are essentially a special variety of “cause and prejudice” claims.
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The prejudice required is the same, but the cause is based specifically on constitutionally
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deficient counsel rather than some other miscellaneous “objective factor external to the defense.”
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McCleskey, 499 U.S. at 493.
The Sixth Amendment right to effective assistance of counsel is violated when: (1)
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counsel’s performance was so deficient so as not to constitute the “counsel” guaranteed by the
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Sixth Amendment; and (2) the deficiency prejudiced the defense by “depriving the defendant of
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a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. There is a “strong
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presumption” of reasonable professional conduct. Id. at 698. When this presumption is
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overcome and an attorney’s “unprofessional errors” are such that there is a “reasonable
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probability” the result would have been different had the errors not occurred, the defendant has
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been deprived of his Sixth Amendment rights. Kimmelman v. Morrison, 477 U.S. 365, 375
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(1986). “Reasonable probability” is a lower standard than “more likely than not.” Nix v.
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Whiteside, 475 U.S. 157, 175 (1986). The analysis does not focus purely on outcome. Lockhart
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v. Fretwell, 506 U.S. 364, 369 (1993). The trial or appeal must also have been fundamentally
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unfair or unreliable. Williams v. Taylor, 529 U.S. 362, 391–92 (2000). Counsel’s tactical
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decisions with which a defendant disagrees do not rise to the level of ineffective assistance
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unless the decisions are so poor as to meet the general test for constitutionally defective
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assistance. See Dist. Attorney’s Office for Third Judicial Dist. V. Osborne, 557 U.S. 52, 85–86
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(2009).
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“Prejudice” means that “the constitutional errors raised in the petition actually and
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substantially disadvantaged [a defendant’s] defense so that he was denied fundamental fairness.”
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Murray v. Carrier, 477 U.S. 478, 494 (1986). A showing of prejudice requires demonstration of
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a “reasonable probability that . . . the result of the proceedings would have been different. A
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reasonable probability is a probability sufficient to undermine confidence in the outcome.”
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Vansickel v. White, 166 F.3d 953, 958–59 (9th Cir. 1999) (quoting Strickland, 466 U.S. at 694)).
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The Court finds that appellate counsel’s failure to raise the ineffective assistance claims
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during direct appeal does not constitute “cause and prejudice,” which means that those claims are
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procedurally defaulted. Defendant argues that Graham shirked his duty of properly
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communicating with him during the appeal and that Graham did not argue “all the points” that
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Defendant “wanted him to.” (Mot. to Vacate 8). Defendant complains that Graham did not know
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what issue to pursue at the Ninth Circuit, including challenges to the performance of Defendant’s
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trial counsel.
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Counsel certainly has a responsibility to communicate with a client and include that client
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in the decision making process where appropriate. See Matter of Francovich, 575 P.2d 931, 932
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(Nev. 1978). However, even if the Court were to find that Graham’s performance was lacking,
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Defendant has not demonstrated prejudice. The deficiencies Defendant claims in both
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Kennedy’s and Stevenson’s representation of him relates to their alleged failure to present
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evidence supportive of Defendant’s self-defense theory. (See Mot. to Vacate 5–6). But it was the
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Court’s rejection of this defense, not counsel’s failure to secure certain evidence that resulted in
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the evidence not going before the jury. Thus, even had Graham included Defendant’s
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contentions regarding his trial counsel on direct appeal, there is not a reasonable probability that
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the Court of Appeals would have ruled any differently.
Furthermore, Defendant has not established that Graham performed deficiently in other
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aspects of the appeal. It is clear from the Ninth Circuit’s opinion that Graham argued against
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both the Court’s ruling on the self-defense theory and against Defendant’s sentence. (See 9th
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Cir.’s Op. 3–4). It is therefore apparent that Graham did in fact address the “trial injustices”
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Defendant claims he suffered, (Mot. to Vacate 8), despite Defendant’s arguments to the contrary.
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And even if Graham chose not to argue every point that Defendant disagreed with during the
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trial, there is no indication that such choices were anything more than tactical decisions.
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Therefore, the Court finds that Defendant has failed to show that he suffered ineffective
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assistance of counsel as to Graham’s representation.
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III.
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GROUND 4
Defendant’s fourth ground for vacating rests on this Court’s ruling on evidentiary issues
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related to the theory of self-defense and also on its imposing the maximum sentencing. (Id. at 9).
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Both of these arguments are precluded by res judicata. “Res judicata, also known as claim
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preclusion, bars litigation in a subsequent action of any claims that were raised or could have
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been raised in the prior action.” W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.
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1997). “The doctrine is applicable whenever there is ‘(1) an identity of claims, (2) a final
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judgment on the merits, and (3) identity or privity between the parties.’” Owens v. Kaiser Found.
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Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting Glickman, 123 F.3d at 1192).
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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
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of any additional evidence regarding the victim’s background would not have changed the jury’s
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verdict. (9th Cir. Op. 2). “The evidence at trial overwhelmingly negated the second prong of the
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test for self-defense—whether Draper used no more force than was reasonably necessary.” (Id. at
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3–5). As to the sentencing, the Ninth Circuit held that there was no procedural error in the
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Court’s not “explicitly address[ing] every factor raised by the defense” and that “although the
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sentence was six years above the high end of the applicable guidelines range, it was not
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substantively unreasonable.” (Id. at 4). Thus, since the Ninth Circuit already ruled on the merits
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of the claims Defendant now raises in the instant Motion, they are barred by the doctrine of res
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judicata.
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CONCLUSION
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IT IS HEREBY ORDERED that Defendant’s Motion to Vacate (ECF No. 127) is
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DENIED.
IT IS SO ORDERED.
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Dated: _______________________
June 16, 2015
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_____________________________________
ROBERT C. JONES
United States District Judge
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