DAVID G. CAMPBELL, District Judge.
Movant Richard Larry Self filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. CVDoc. 1.
On March 9, 2010, a grand jury indicted Movant on four counts of Possession of Child Pornography, with forfeiture allegations. CRDoc. 1. Movant was arrested on March 14, 2010, and the Court appointed trial counsel soon after. CRDocs. 5, 14, 19. Movant made four motions to continue trial, the last of which was filed on September 17, 2010. CRDocs. 20, 23, 26, 32.
On September 21, 2010, the government filed a superseding indictment charging Movant with three counts of Transportation of Child Pornography, three counts of Possession of Child Pornography, and forfeiture allegations. CRDoc. 35. On October 13, 2010, Movant's counsel filed a motion to suppress evidence obtained from the search warrant issued January 27, 2010. CRDoc. 47. The motion was based on staleness and lack of probable cause. CRDoc. 47 at 6-10. The parties fully briefed the issue, and the Court denied Movant's motion. CRDocs. 47, 56, 65, 69.
On November 10, 2010, one week before Movant's trial date, Movant requested new counsel. CRDoc. 74; CVDoc. 34 at 37-38. Movant believed his attorney had failed to properly investigate his case (by not pursuing leads Movant suggested or interviewing witnesses Movant claimed would discredit prosecution witnesses), did not believe he was innocent, and would not present him with an unbiased defense. After considering Movant's complaints, the Court rejected the request, stating that based on the information Movant had provided, a different lawyer would not give Movant a better defense than the one current counsel was set to present. CRDoc. 74.
Trial proceeded as scheduled, and the jury found Movant guilty on all counts. Id.; CRDoc. 90. Counsel moved for a downward departure and variance at the sentencing. CRDoc. 93. The Court denied the request for an extension and Movant was sentenced to concurrent terms of 135 months for each transportation charge and 120 months for each possession charge — an effective sentence of 135 months. CRDocs. 95, 97.
On appeal, Movant challenged the trial court's denial of his motion to suppress, arguing that the search warrant was stale and insufficient to establish probable cause. CRDoc. 117. Movant also challenged his sentence as procedurally erroneous and substantively unreasonable. Id. The Ninth Circuit rejected Movant's claims and affirmed his conviction and sentence. Id.
On July 29, 2013, Movant filed his pro se motion to vacate. CVDoc. 1. Magistrate Judge Metcalf issued his R & R on October 31, 2014. CVDoc. 29. Movant has filed an objection on Grounds One through Eight. CVDoc. 34.
Under § 2255, a person in custody may "move the court which imposed the sentence to vacate, set aside or correct the sentence" on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
A party may file specific written objections to the R & R's proposed findings and recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must undertake a de novo review of those portions of the R & R to which specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). The Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).
In the context of ineffective assistance of counsel claims, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington,
Movant objects on Ground 1(a), asserting that Judge Metcalf misunderstood his claim; on Grounds 1(b) and (c), arguing that Counsel was ineffective by failing to challenge the search based on improper service of the warrant; and on Ground 1(d), arguing that counsel failed to challenge the illegal search and seizure of Movant's person during the warrant's execution. CVDoc. 34 at 2-9.
Movant asserts that his Ground 1(a) claim was misunderstood as challenging "the staleness of the evidence in the probable cause." Id. at 2. In clarifying his argument, Movant claims that trial counsel was ineffective because she failed to challenge the search warrant on the basis that it contained no new probable cause, and was an improper reissue of a previously voided warrant. Id. at 2-3 (citing Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932)).
Judge Metcalf understood Movant's position on Ground 1(a) — that the second search warrant was improper because it did not present new support for probable cause, and that a new probable cause statement should have been required for a valid warrant. CVDoc. 29 at 786-88. Judge Metcalf decided that Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), and the other cases relied on by Movant do not stand for the proposition that every warrant must be accompanied by new affidavits or statements. Id. at 787. Rather, a warrant must simply be based on timely information. Id. The Court finds Judge Metcalf's analysis to be sound. See id. at 786-88. Movant failed to show that new affidavits and statements of probable cause were required for a valid search warrant, and trial counsel's "failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982).
In his objection on Grounds 1(b) and (c), Movant reasserts the same arguments of improper service he made in his motion to vacate. See CVDoc. 2 at 2-3; CVDoc. 21 at 3-4; CVDoc. 34 at 3-6. The Court agrees with the R & R's analysis that a challenge to the search based on timing or lack of service would have been meritless, and failure to make the arguments was not ineffective assistance. CVDoc. 29 at 788-90.
Movant's objection on Ground 1(d) is somewhat unclear. See CVDoc. 34 at 6-9. In his motion to vacate, Movant argued that trial counsel should have challenged the search of his truck on the ground that agents improperly searched Movant's person, improperly seized Movant's effects, and improperly detained Movant without issuing a Miranda warning. CVDoc. 2 at 3-5; CVDoc. 21 at 4-6. Judge Metcalf found that a challenge of the search by
The Court has reviewed the R & R's treatment of Ground 1(d) and agrees that any challenge to the search of Movant's person or to his detention would have been meritless. CVDoc. 29 at 787-89. Movant's claim that he was not given a Miranda warning lacks merit because Movant does not claim that he was interrogated or that any statement obtained in violation of Miranda was used against him at trial. See United States v. Kim, 292 F.3d 969, 976 (9th Cir.2002) (holding that a defendant is entitled to a Miranda warning when police questioning exceeds the scope of a Terry stop and becomes a custodial interrogation); see also United States v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) ("Potential violations [of the Miranda rule] occur, if at all, only upon the admission of unwarned statements into evidence at trial.").
Movant states in his objection that he stands by his original challenge that counsel was ineffective in failing to challenge Movant's convictions based on double jeopardy. CVDoc. 34 at 9. Movant reasserts that: (1) the three possession of child pornography charges amounted to a single offense, and (2) his possession convictions were lesser included offenses of his transportation convictions. Id. at 9-10; CVDoc. 2 at 5-6; CVDoc. 21 at 6-8.
Applying 18 U.S.C. § 2252(a)(5)(B) and its reference to a defendant's possession of "any" material containing child pornography, Judge Metcalf found that possession of multiple materials containing child pornography established multiple violations of the possession statute. CVDoc. 29 at 793. Because each possession charge in this case relied on separate material, multiple possession charges were appropriate and a challenge by trial counsel on this basis would have been futile. Id.
Judge Metcalf also determined that although possession of child pornography can be a lesser included offense of transportation of child pornography, Movant failed to show that the images used to support his possession charges were the same images used to support his transportation charges. Id. at 793. Movant therefore has failed to show that counsel was ineffective for failing to raise it.
The Court has reviewed Judge Metcalf's reasoning on these issues and finds it to be correct. Movant's Ground 2 objection is without merit and will be denied.
Movant asserts that (1) trial counsel failed to challenge admission of prejudicial stories based on authenticity, and (2) the government failed to investigate fingerprint and DNA evidence that would have exonerated Movant.
On February 8, 2010, a search warrant was executed at Movant's residence. CVDoc. 29 at 783. Along with other evidence, agents found several hundred pages of printed documents containing fictional narratives describing sexual conduct with children (the "stories"). Id. Following notice that the government intended to use the stories at trial, Movant's counsel argued the stories were unfairly prejudicial under Federal Rule of Evidence 404(b) and that the government possessed other evidence sufficient to show Movant had knowledge of the contents of the electronic storage media that contained child pornography. CRDoc. 57 at 7. The Court concluded that the stories were admissible only with redactions and other limitations. CRDoc. 70 at 5-7.
Movant contends that his counsel should have challenged the authenticity of the stories and the fact that the admitted stories involved a truck driver, a veteran, or a character named "Rick," all of which might describe Movant. Given the vigorous arguments that were made by defense counsel regarding the stories and the limitations the Court placed on their admission at trial, including limiting the number of stories admitted, redacting portions of the stories, and limiting instructions to the jury, the Court cannot conclude that the evidence would have been any different had defense counsel made the arguments Movant suggests. Copies of the stories were found in Defendant's home and on electronic storage media in his truck, facts the jury could take into account in deciding whether they were authentic. The similarity of some of the stories to Movant was further evidence of their authenticity. The Court agrees with Judge Metcalf's conclusion that the additional arguments suggested by Movant would have had no effect on admission of the redacted stories at trial. CVDoc. 29 at 795-96. Because it is unlikely that the outcome would have been different, trial counsel was not ineffective for failing to make the arguments identified by Movant. See Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052.
Movant argues that trial counsel was ineffective for failing to assert a claim of prosecutorial misconduct based on the government's failure to follow through on fingerprint and DNA evidence. CVDoc. 34 at 14-15. The R & R concluded that Movant "misapprehends the obligation of the prosecution," and has overstated the persuasive effect that the DNA and fingerprint evidence would have had. CVDoc. 29 at 796-98. The R & R also notes that trial counsel may have had a tactical reason for not pursuing the evidence in question. Id. at 797-98. Movant objects to these conclusions, and argues that the persuasive effect of the testing cannot be overstated because it would have rebutted testimony from his wife and supported Movant's denial of ownership. CVDoc. 34 at 14-15. Additionally, Movant claims "there is no possible way for the magistrate court to constru [sic] [that trial counsel's decision not to pursue testing was tactical], short of talking to the dense [sic] attorney." CVDoc. 34 at 15.
Movant's objections are without merit. The R & R's statement that trial counsel's decision not to pursue testing may have been tactical is supported by the fact that trial counsel highlighted the lack of testing during trial, both on cross examination and in closing argument. CRDoc. 112 at 397-98; CRDoc. 113 at 441. Defense counsel might well have concluded that the ability to make these arguments at trial outweighed the potential benefits and risks of pushing the government to
Movant asserts that trial counsel was deficient in failing to challenge admission of the fictional stories for lack of attribution. CVDoc. 34 at 16-19. He also claims trial counsel failed to investigate evidence that would have supported his denial of authorship.
As discussed in the R & R, trial counsel did oppose the stories' admission under Federal Rule of Evidence 404(b) and 403, and renewed the objection again at trial to every story admitted. CVDoc. 29 at 799. Counsel also argued to the jury that the government could not attribute the stories to Movant, pointing out that multiple people had access to Movant's residence, computer, and other media while Movant was away for extended periods of time as a truck driver. CRDoc. 113 at 442-44.
"[A] court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance" and "the defendant must overcome the presumption that ... the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citation omitted). "There are countless ways to provide effective assistance in any given case." Id. Movant has failed to show trial counsel's decisions as anything but reasonable trial strategy, and thus the Court will deny his Ground 4 objection.
Movant argues that trial counsel was ineffective because she did not introduce the following evidence: (1) AOL account time of access logs; (2) that Movant's AOL account information and credit/debit card information were posted on a corkboard so others could pay bills; (3) a receipt showing that Movant's wife purchased eight of the thumb drives that were found in Movant's truck, along with the bag they were found in; (4) evidence that Movant used a different computer than the one that was found to have child pornography; (5) evidence that four of the five computers seized were free of any child pornography; and (6) evidence to impeach Movant's wife by showing she had a propensity to lie about Movant. CVDoc. 34 at 19-24. Further, Movant claims trial counsel should have called the following witnesses: James Holdgrafer, Laura Holdgrafer, Robin Dufresne, and Sandy Maranda. Id. at 20-22. According to Movant, these witnesses would have testified that Movant did not take a computer with him on road trips unless his wife or daughters were accompanying him, Movant's wife brought the computer on the road trip on which they were searched, Movant's brother-in-law had access to the computers for over a month, and Movant's wife used the thumb drives for pictures and music storage. Id.
Movant concedes that trial counsel did elicit testimony on cross-examination that others had access to his home, computer, thumb drives, truck, and AOL Account. Id. at 19-20. Movant also concedes that trial counsel elicited testimony from government experts that they could not place
Judge Metcalf reviewed each of Movant's omitted evidence claims in great detail. CVDoc. 29 at 801-08. The Court has reviewed these claims and Movant's objections, and agrees with Judge Metcalf's analysis. Regarding witnesses not selected to testify, trial counsel had strong tactical reasons for not calling them. Id. at 803-05. With regard to evidence that Movant's wife purchased the thumb drives and bag seized during the search, that four of five computers were free of child pornography, and that Movant did not frequently take a laptop with him on road trips, many of these facts were brought out on cross-examination and the remainder would not have altered the outcome of the trial. Id. at 803, 805-07. With regard to evidence that Movant's wife was a perjurer, Federal Rule of Evidence 608(b) prevented use of the exhibits Movant suggests. Id. at 807.
These arguments are classic examples of second-guessing strategic decisions by trial counsel. The presumption in favor of trial counsel's decisions precludes habeas relief on such a basis. Ground 5 lacks merit.
Movant argues that trial counsel was ineffective because she failed to correct a number of inaccuracies in the pre-sentence report ("PSR"), did not allow Movant to interview with the probation officer, and never provided Movant with a copy of the PSR. CVDoc. 34 at 24-31; CVDoc. 2 at 17-18.
The R & R addressed each claim regarding the PSR and found they lacked merit. CVDoc. 29 at 808-11. The Court agrees. The Court found that Movant had no criminal history points, resulting in a criminal history category of I, and sentenced him at the bottom of the guideline range. CRDoc. 114 at 6, 11. The Court based its sentencing decision on Movant's possession of hundreds of photographs and videos of child pornography, his perpetuation of the market for child pornography, his fixation on sexual abuse of children as reflected in many stories he wrote about abusing children, and his failure to accept responsibility. CRDoc. 114 at 10-11. Movant has not shown that the alleged errors in the PSR concerning his prior arrests and various allegations of sexual abuse had any effect on his sentence. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ("An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.").
Nor can the Court conclude that trial counsel was ineffective when she recommended that Movant not have an interview with the probation officer who was preparing the PSR. See CVDoc. 29 at 809-11. Trial counsel may well have concluded that Defendant's demeanor and lack of contrition would result in a less favorable recommendation. Additionally, Movant has failed to show how the interview would have affected the outcome of his sentencing. See Strickland, 466 U.S at 691-92, 104 S.Ct. 2052.
Lastly, Movant claims that trial counsel never provided him with a copy of the PSR or reviewed it with him. This claim is significantly undermined, however, by the fact that Movant referred to the "Probation Report" in his pre-sentencing letter to the Court, commenting on some of the matters raised in this habeas petition. CRDoc. 96 at 2. Nor did Movant contradict his counsel's specific statement at the sentencing hearing that she had reviewed the PSR with him. Id. at 44; CRDoc. 114 at 3. Ground 6 lacks merit.
Movant argues that counsel was ineffective by failing to (a) present evidence from the forensic expert that someone else could have committed the crime; (b) pursue discovery and disclosures from the prosecution; (c) investigate whether another person authored the fictional stories; (d) object to the stories; (e) call witnesses for the defense; (f) present a defense; (g) investigate information that Movant did not own a computer until May 2008, that the other computers were clean and available for others to use, and that the program used to write the stories was not on his computer; (h) show that the computers could not have been placed on the bottom bunk of the truck at the time of the search; (i) impeach the government's witnesses; and (j) object to references to Movant's ex-wife as such at trial, even though they remained married at that time. CVDoc. 34 at 31-37; CVDoc. 29 at 811.
Judge Metcalf found arguments (a), (b), (c), (g), (h), and (j) to be unsupported, and explained why. CVDoc. 29 at 811-12. He found arguments (d), (e), (f) and (i) to be repetitive of earlier grounds already dismissed. Id. at 812-13. Movant objects to these conclusions, sometimes citing evidence and often with only conclusory assertions. CVDoc. 34 at 31-33. The Court again concludes, however, that Movant is second-guessing his trial counsel's strategic decisions on how best to try this case. Although the Court does not doubt that Movant genuinely believes a better defense could have been mounted, that is not the test for ineffective assistance. Movant must show that his attorney's performance was unreasonable under prevailing professional standards, and, but for counsel's unprofessional errors, the results of his trial would have been different. Strickland, 466 U.S. at 687-94, 104 S.Ct. 2052. The "highly deferential" approach the Court must take when evaluating counsel's performance precludes the kind of issue-by-issue criticism Movant levels in Ground 7. Id. at 689, 104 S.Ct. 2052.
After a de novo review, the Court finds Judge Metcalf's discussion of the arguments raised in Ground 7 to be correct. CVDoc. 29 at 811-13. The Court will accept the R & R's findings and deny Movant's Ground 7 objections.
Movant asserts that (a) the Court abused its discretion by refusing Movant's pretrial request for new counsel, and (b) counsel was ineffective "for not challenging the lesser included offenses, and greater offense." CVDoc. 34 at 37-39.
Judge Metcalf properly notes that "to the extent that Movant might have intended to assert direct challenges on these decisions of the trial court, the claims
Movant's argument in Ground 8(b) regarding the lesser included offenses is the same argument made in Ground 2 and will be denied for the reasons discussed above.
JAMES F. METCALF, United States Magistrate Judge.
Movant, following his conviction in the United States District Court for the District of Arizona, filed on July 29, 2013 a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and Memorandum in Support (Doc. 2). On March 19, 2014, Respondent filed its Response (Doc. 15). Movant filed a Reply on June 16, 2014 (Doc. 21). On September 29, 2014, Petitioner re-filed (Doc. 24) his Memorandum in Support of his Petition because of a defect in the electronically filed version.
The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
In his Motion to Suppress, Movant described the factual background as follows:
(CR-10-8036-PCT-DGC Doc. 47 at 3-6 (citations omitted).)
On March 9, 2010, Movant was indicted (CR Doc. 1) in the District of Arizona case CR-10-8036-PCT-DGC on four counts of Possession of Child Pornography, with forfeiture allegations. Counsel was appointed. (CR Doc. 5, M.E. 3/15/10.)
On September 21, 2010, a Superseding Indictment was filed (CR Doc. 35), charging Movant with 3 counts of Transportation of Child Pornography, 3 counts of Possession of Child Pornography, and forfeiture allegations.
Counsel filed a Motion to Suppress (CR Doc. 47) seeking to suppress evidence seized at Movant's home on January 27, 2010 for lack of probable cause to support the warrant, and evidence seized in the ensuing searches of his truck and car, as fruits of the poisonous tree. The motion was denied. (CR Doc. 69, Order 11/12/10.)
Movant proceeded to a jury trial on November 17, 2010. (CR Doc. 78, M.E. 11/17/10.) He was found guilty as charged. (CR Doc. 90, Verdict.)
Counsel moved for a downward depart and variances in sentencing. (CR Doc. 93.) The motion was denied, and on March 14, 2011 Movant was sentenced to concurrent terms of 135 months on the transportation charges, and concurrent terms of 120 months on the possession charges, for an effective sentence of 135 months. (CR Doc. 95, M.E. 3/14/11; CR Doc. 97, Judgment.)
Movant filed a direct appeal, appealing the denial of his motion to suppress on the basis that the lapse of time between the first lead and the search warrant was so long as to render the information stale and prevent a finding of probable cause. Movant also challenged his sentence. The Ninth Circuit Court of Appeals rejected his arguments, and affirmed the convictions and sentences. (CR Doc. 117, Memorandum Decision.)
(Doc. 4, Service Order.)
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance-counsel's representation fell below the objective standard for reasonableness; and (2) prejudice — there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 104 S.Ct. 2052. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697, 104 S.Ct. 2052.
In his Ground 1, Movant asserts that counsel was ineffective in failing to adequately investigate the validity of the three search warrants. (Motion, Doc. 1 at 5; Memorandum, Doc. 2 at 1-4.) Movant asserts four specific defects in the searches and warrants, addressed hereinafter as subparts (a) through (d). Respondent argues that defense counsel adequately investigated, and filed a motion to suppress the evidence seized during the searches.
Movant argues that trial counsel should have challenged the search of the home on the basis that there was no new probable cause asserted to support the second warrant to search the home which was issued
Respondent appears to conflate the staleness of the information in the probable cause statement used to support a warrant, with the staleness of the statement or affidavit itself. The former was addressed by the Ninth Circuit in Movant's direct appeal (and may not be revisited in this proceeding). (CR Doc. 117, Mem. Dec. at 4.)
In support of his contention that a new probable cause statement was required, Petitioner cites to U.S. v. Lacy, 119 F.3d 742 (9th Cir.1997), U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006), and Sgro v. U.S., 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Nothing in these cases suggests that a new affidavit must be submitted when an expired warrant is being reissued. These cases simply stand for the proposition that affidavits in support of warrant requests "must be based on facts "so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.''" U.S. v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (indirectly quoting Sgro, 287 U.S. at 210, 53 S.Ct. 138). At best, Sgro held that an expired warrant may not simply be reissued without a new finding of probable cause, based upon timely affidavits.
287 U.S. at 211, 53 S.Ct. 138. Thus, Sgro did not mandate new affidavits or statements, merely timely information.
Moreover, Sgro did not establish any time limit on when the affidavits have come to "have sole relation to a different time." In Lacy, the court observed that such a determination is a fact specific inquiry.
Lacy, 119 F.3d at 745-46 (internal citations omitted). Of course, in this case, the question whether the information was stale has been decided by the Ninth Circuit on Movant's direct appeal.
Movant fails to establish new affidavits or statements of probable cause were mandatory, despite the freshness of the information contained in the original. The undersigned has found no such requirement.
Thus, the undersigned concludes that an attack based on the reliance on the same affidavits in issuing the second warrant would have been without merit. "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982).
Accordingly, Ground 1(a) is without merit.
Movant argues that trial counsel should have challenged the search of the home on the basis that the search warrant for the home was not properly served because the attachments and affidavit were not served, and the warrant was not served at the outset of the search on his son-in-law, the caretaker of the property. Respondent argues that presentation of the warrant is not required at the outset of the search, and that the affidavit or other supporting exhibits need not be presented at all. (Response, Doc. 15 at 17-18.) Respondent further argues that a warrant need not be served on a non-occupant caretaker when a residence is unoccupied at the time the warrant is executed, and that in any event copies were left at the home, and may have been shown to the son-in-law before entry was gained. (Id. at 18, and n. 7.) Movant replies that it is unclear whether service of the warrant is required. (Reply, Doc. 21 at 3-4.)
In support of his argument that service of the warrant at the outset of the search is required, Movant relies upon U.S. v. Gantt, 194 F.3d 987 (9th Cir.1999), U.S. v. Hector, 474 F.3d 1150, 1154 (9th Cir.2007), and the separate opinion of Justices Souter, Stevens and Ginsburg in U.S. v. Grubbs, 547 U.S. 90, 99, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). (Reply, Doc. 21 at 3-4.)
In Gantt, the Ninth Circuit held that Federal Rule of Criminal Procedure 41(d) (now at Fed.R.Crim.P. 41(f)) required that a search warrant be served at the outset of a search. 194 F.3d at 1001-1002. Seven years later, the majority opinion in Grubbs appeared to have rejected that holding:
Grubbs, 547 U.S. at 99, 126 S.Ct. 1494.
Movant suggests that the special concurrence in Grubbs leaves the question open. And indeed, Justice Souter asserted that prior decisions of the Court left open the question whether there was a "right of an owner to demand to see a copy of the
Movant also complains that the affidavit and other attachments were not included with the copy of the warrant eventually left at the premises. However, Rule 41 does not mandate the delivery of anything other than the warrant and a receipt for the property taken. There is no "constitutional mandate that an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid." U.S. v. Hurwitz, 459 F.3d 463, 472 (4th Cir.2006). See also Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 444 (6th Cir.2006) (no constitutional requirement or requirement under Rule 41 to leave incorporated affidavits, etc.).
Even if there were some basis to assert an obligation to serve the warrant and/or the affidavits or attachments, a motion to suppress founded upon such a service requirement would have been futile for two reasons. First, even when applying Gantt, the Ninth Circuit has held that suppression for violations of Rule 41 are only appropriate where:
U.S. v. Williamson, 439 F.3d 1125, 1133 (9th Cir.2006).
Second, Movant was not present when the warrant was executed, and thus cannot complain of the lack of service of the warrant. "Just as a person who is somewhere else cannot benefit from the `assurance' provided by the showing of a warrant, an absent person has no present stake in the contemporaneous opportunity to monitor the search for compliance with the warrant. Thus the interest in the `notice' that showing a warrant provides, likewise, does
Accordingly, any attempt to mount challenges to the timing or lack of service of the warrant or its attachments, supporting affidavits, etc. would have been futile, and failure to do so would not have been ineffective assistance. Baumann, 692 F.2d at 572.
Therefore, Ground 1(b) is without merit.
Movant argues that trial counsel should have challenged the search of the truck on the basis that the search warrant for the truck was not properly served because the attachments and affidavit were not served, and the serving agent refused to provide a copy of the warrant at the outset of the search.
As discussed hereinabove, with regard to the execution of the warrant on Movant's home (with the exception of the distinction that Movant was present when the vehicle was searched), any argument based upon the timing or lack of delivery of the warrant to search the truck would be without merit. The fact of Movant's presence would give him standing to mount the objection, but even if Gantt survives Grubbs, Movant fails to establish a constitutional violation (and cannot under Grubbs), asserts no prejudice, and fails to proffer anything to establish a deliberate violation of the Rule. Accordingly, this claim would also be without merit, and cannot support a claim of ineffective assistance. Baumann, 692 F.2d at 572.
Therefore, Ground 1(c) is without merit.
Movant argues that trial counsel should have challenged the search of his truck on the basis that Movant and his wife were searched, his effects were seized, and they were locked in a law enforcement vehicle during the search of his vehicle, all without Miranda warnings, even though the warrant did not extend to them or their effects. Respondent argues that the detention of occupants during a search is permitted, and no Miranda warnings are required. Respondent argues there is no evidence that Movant was searched, he cannot complain of the search of his wife, and no evidence from such searches was presented at trial, precluding a finding of prejudice. (Response, Doc. 15 at 18-19.) Movant replies that the authorities relied on by Respondent with regard to the detention and ensuing search are distinguishable on the basis that the warrants were for evidence, not contraband, and that the searches of Petitioner's effects did not occur until the conclusion of the search of the vehicle. (Reply, Doc. 21 at 4-6.)
In a footnote, the Summers Court indicated they did "not decide whether the same result would be justified if the search warrant merely authorized a search for
Even assuming that this remained a significant distinction, Movant's factual premise is flawed. Here, the warrant to search the vehicle included not only evidentiary types of things (correspondence, records, etc.), but "images of child pornography and files containing images of child pornography." (CR Doc. 47, Mot. to Supp. at Exhibit B, Warrant, at Attachment B, at 56.) Such images would be contraband the same as the narcotics being searched for in Summers.
Accordingly, any challenge based upon the detention would have been without merit.
Kim, 292 F.3d at 976. The Kim court went on to conclude that the detention in that case had morphed into a custodial interrogation which required Miranda warnings.
Nonetheless, here Movant makes no assertions that any interrogation ensued. (See e.g. Memorandum, Doc. 2 at 3-4.) Nor does Movant suggest that any statements were made by him while he was detained, nor that any such statements were entered into evidence against him. (Id.)
"Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect's constitutional rights or even the Miranda rule." U.S. v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). "Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial." Id.
Consequently, any challenge based upon the lack of Miranda warnings would have been without merit.
Moreover, even assuming that the searches were prohibited, Movant makes no suggestion that any evidence used at trial was obtained during or derived from the search of his person, wallet, etc. as opposed to the search of the vehicle.
Consequently, any challenge based upon the search of Movant and his personal effects would have been without merit.
In his Ground 2, Movant alleges that counsel was ineffective in allowing Movant to be indicted, tried, and convicted in violation of Movant's right to be free from double jeopardy. Movant's theory is that possession is a lesser included offense of transportation, and thus he could not properly have been convicted of both types of offenses. Respondent argues that the possession charges were not lesser included offenses of the transportation offenses because the images in the three possession charges were different than the images in the three transportation charges. (Answer, Doc. 15 at 20.) Movant replies that simultaneous possession of more than one image may only result in one conviction, citing U.S. v. Polouizzi, 564 F.3d 142 (2nd Cir.2009) and U.S. v. Chiaradio, 684 F.3d 265, 279 (1st Cir.2012). In support of his contention that possession is the lesser included offense of transportation he cites U.S. v. Kennedy, 643 F.3d 1251 (9th Cir. 2011) and U.S. v. Davenport, 519 F.3d 940 (9th Cir.2008). (Reply, Doc. 21 at 6-8.)
In Polouizzi, the defendant was convicted of violations of 18 U.S.C. § 2252(a)(4)(B). That statute proscribes the possession of "1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction" of child pornography. (Emphasis added.) The Polouizzi court concluded that this construction made the focus on the possession of the matter which contained any number of images, and thus a single book or other repository containing multiple images would only amount to one violation. Moreover, because it referred to "1 or more," then "a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography [is subject] to only one conviction under 18 U.S.C. § 2252(a)(4)(B)." 564 F.3d at 155. Similarly, the Ninth Circuit had concluded many years before that under § 2252(a)(4)(B) "the `matter' is the physical medium that contains the visual depiction — in this case, the hard drive of Lacy's computer and the disks found in his apartment." U.S. v. Lacy, 119 F.3d 742, 748 (9th Cir.1997).
But, here Movant's convictions for possession were under 18 U.S.C. § 2252A(a)(5)(B), not § 2252A(a)(4)(B). (CR Doc. 97, Judgment.) This provision proscribes possession of "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography." 18 U.S.C. § 2252A(a)(5)(B) (emphasis added). In U.S. v. Hinkeldey, the Eight Circuit relied upon that very distinction ("1 or
Chiaradio, 684 F.3d at 275. Thus, under § 2252A(a)(5)(B), the possession of multiple materials establishes multiple violations.
Thus, in U.S. v. Woerner, 709 F.3d 527 (5th Cir.2013), the Fifth Circuit addressed this issue under § 2252A(a)(5)(B) (which Movant was convicted of violating), and held that each different "material" (containing one or more images) was a separate offense. "The allowable unit of prosecution for § 2252A(a)(5)(B) is each `material,' or medium, containing an image of child pornography." Woerner, 709 F.3d at 540. In that case, two separate convictions were sustained based upon possession of a computer and a flash drive, each containing images.
Woerner was founded upon the Fifth Circuit's analysis in U.S. v. Planck, 493 F.3d 501, 504 (5th Cir.2007) ("where a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), such as a computer, a book, and a magazine, the Government may charge multiple counts, each for the type of material or media possessed"). In U.S. v. Schales, 546 F.3d 965 (9th Cir.2008), the Ninth Circuit cited Planck approvingly.
Here each of Movant's charges of possession was founded upon a separate media storage device. Count 4 was founded upon possession of "a compact disc (referred to as CD 1)"; Count 5 on possession of "a compact disc (referred to as CD 2)"; and Count 6 on possession of "a Verbatim 4GB USB thumb drive." (CR Doc. 35, Superseding Indictment at 2.) Thus, Polouizzi is distinguishable, and Chiaradio supports multiple convictions. Therefore, Movant's conviction was based on three separate violations, each based on a different "material."
Accordingly, any challenge by counsel on this basis would have been futile.
Here, however, Movant was not convicted of possession and receipt, but of possession and transportation. As the Court observed in Kennedy, that issue has not been resolved in the 9th Circuit. "Although we have not held that possession of child pornography is a lesser-included offense of transportation of child pornography, the government has not appealed this determination, and therefore we need not reach the issue here; rather, we assume for purposes of this appeal that the district court's analysis was correct." Kennedy, 643 F.3d at 1258, n. 11. Cf. Chiaradio, 684 F.3d at 280 (possession of child pornography
Moreover, an offense is only a lesser included offense if it and the greater offense are based on the same underlying conduct. "Stated in reciprocal terms, where separate conduct supports each offense, the Fifth Amendment's Double Jeopardy Clause is not implicated." U.S. v. Overton, 573 F.3d 679, 695 (9th Cir. 2009). Here, the three possession charges were founded upon Movant's possession of three sets of material, containing the images "image 943[1].jpg," "m_p_1.jpg," and "22_03797_". In contrast, his transportation charges were founded upon Movant's transportation of three separate images, "(pthc) Izzy 02.avi," "3-10.jpg," "dogg_78956_". (CR Doc. 35, Superseding Indictment.)
Accordingly, even if possession is a lesser included offense of transportation of the same images, Movant has failed to show that the underlying conduct was the same, i.e. the images possessed were the same as the images transported. Consequently, this claim is without merit, and counsel was not ineffective for failing to raise it.
In his Ground 3, Movant argues trial counsel was ineffective for failing to challenge prosecutorial misconduct based upon: (a) the prosecution of multiplicitous offenses; (b) the use of stories found on materials obtained during the vehicle search to obtain a detention order, deny a travel order, in opening statements, etc., where there was no evidence to link Movant to the authoring or knowing possession of the stories; (c) failure to investigate and disclose evidence of others using Movant's computer; (d) presentation of perjured testimony at the detention hearing; (e) failing to investigate fingerprint and DNA evidence to exonerate Petitioner; (f) permitting the illegal searches and seizures; and (g) failure to "mention" "clean" computers found at Movant's home and in his vehicles.
Movant argues counsel was ineffective for failing to assert prosecutorial misconduct for prosecuting multiplicitous offenses. Ordinarily, charging decisions are uniquely within the discretion of the prosecutor and not subject to judicial intervention. See U.S. v. Redondo-Lemos, 955 F.2d 1296, 1298-99 (9th Cir.1992), overruled on other grounds by U.S. v. Armstrong, 48 F.3d 1508 (9th Cir.1995). There are circumstances that result in an exception. See Gershman, Prosecutorial Misconduct § 4:1, et seq. (2d ed.) (identifying selective, vindictive, and bad faith charging as charging decisions amounting to judicially cognizable prosecutorial misconduct). However, Movant provides nothing to suggest that a simple decision to charge multiplicitous offenses would be an exception.
Movant argues that the prosecutor engaged in misconduct by using sexually graphic stories involving inter alia sexual conduct with children, where there was no evidence to link Movant to the authoring or knowing possession of the stories. Respondent argues that the stories were found on CD-1 and a RiData thumb drive found in Movant's vehicle, that trial counsel challenged their introduction, the trial court issued limiting instructions, the evidence presented was in accordance with those instructions, and the trial court issued a limiting instruction to the jury on their consideration of the evidence. (Response, Doc. 15 at 21-23.) Movant replies that Respondent had available to it other evidence to show Movant's knowledge, i.e. testimony from Movant's wife, and thus the use of the stories was simply to show a proclivity to commit the child pornography offenses. (Reply, Doc. 21 at 8-9.)
Indeed, counsel did challenge the introduction of the stories, including the absence of evidence on some of the stories that they were authored by Movant, and that the introduction of the evidence should be precluded from use as bad act evidence under Federal Rule of Evidence 404(b) as unfairly prejudicial. Counsel argued that while courts had found such evidence to prove intent to possess child pornography such use was subject to an undue prejudice analysis. Counsel further argued that "the Government has substantial other forensic evidence taken from the examination of the computers and media that would support a finding that the Defendant would have had knowledge of what was contained on the thumb drives, computers, and CDs." (CR Doc. 57, Response to Notice of Intent at 7.)
In response, the Court concluded that subject to the redactions and other limitations, the evidence was not unduly prejudicial, and that it was admissible. (CR Doc. 70, Order 11/12/10 at 5-7.)
(Id. at 7.)
Under these circumstances, the undersigned cannot find any likelihood that a different outcome would have occurred on the objection to the stories, had counsel made the additional arguments asserted by Movant (e.g. the lack of evidence of Movant's knowledge of his possession of the stories, and the availability of testimony from Movant's wife to show knowledge).
Consequently, there is no reason to believe that an assertion of prosecutorial misconduct on this basis would have been anything but futile. Consequently, counsel
In his Ground 3(c), Movant argues counsel was ineffective for failing to assert a claim of prosecutorial misconduct based upon the failure to investigate and disclose evidence of others using Movant's computer. Respondent argues that the claim is without merit because there was no evidence of such usage, and the defense was provided access to the available evidence (e.g. the seized computer and media). (Response, Doc. 15 at 23.) Petitioner replies that the investigating agent testified that "they could not say who was using the computer or the media." (Reply, Doc. 21 at 11.)
Movant misapprehends the duty of the prosecution with regard to exculpatory evidence. "While Brady [v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] requires the Government to tender to the defense all exculpatory evidence in its possession, it establishes no obligation on the Government to seek out such evidence." U.S. v. Walker, 559 F.2d 365, 373 (5th Cir.1977). See U.S. v. Polizzi, 801 F.2d 1543, 1553 (9th Cir.1986) (prosecution under no obligation to disclose material of which it was not aware nor in possession of).
Here, the testimony of the agent referenced by Movant indicates that the government had no information of use by others. Movant proffers nothing to show that such evidence existed, or that it was in the possession or control of the prosecution. Accordingly, this claim of prosecutorial misconduct would have been without merit, and counsel was not ineffective for failing to pursue it.
In his Ground 3(d), Movant argues counsel was ineffective for failing to assert a claim of prosecutorial misconduct based upon the presentation of perjured testimony at the detention hearing. Movant argues Agent Shrable misrepresented at the detention hearing that he attended the execution of the search warrant at Movant's home and talked with Movant's wife between that search of the home and the search of the vehicle. Movant argues that Shrable later testified he was authorized to be on leave, that Agent Koski executed the warrant, and that Movant's wife was travelling with him at the time of the alleged conversations. (Memorandum, Doc. 2 at 9.) Respondent argues that Shrable never stated he was present when the search was conducted and clarified on redirect that the conversation may have been later, but in any event the statement at the pre-trial proceeding would not have prejudiced the outcome of the trial. (Response, Doc. 15 at 24 and n. 16.) Movant does not reply.
The prosecutor has a constitutional duty to correct testimony he knows to be false. Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). "In assessing materiality under Napue, we determine whether there is ``any reasonable likelihood that the false testimony could have affected the judgment of the jury;'' if so, then `the conviction must be set aside.'" Hayes v. Brown, 399 F.3d 972, 984 (9th Cir.2005). Here, the alleged misrepresentations were not made at trial, but at a pretrial detention hearing. There is no indication that the jury was made aware of any uncorrected falsehood. Thus, any such falsehoods could not have affected the judgment of the jury in convicting Movant. Accordingly, this claim of prosecutorial misconduct would have been without merit, and counsel was not ineffective for failing to pursue it.
In his Ground 3(e), Movant argues that counsel was ineffective for failing to assert
Movant overstates the persuasive effect of any such evidence. As noted by Respondent, it would not have shown Movant's innocence. At best, it would have shown that someone else had touched the items. While this may have created some inference that a third party may have been responsible for the child pornography, that inference would have been limited. Movant does not, for example, suggest that anyone touching the items must have been the one placing the child pornography on them. Indeed, a third party may have innocently touched the items (e.g. at the time of sale, to relocate them in the residence or vehicle, etc.) without ever altering their contents. Indeed, many people could have touched them without doing so. There is no substantial likelihood that such a slight inference would have overcome the other evidence that linked Movant to the child pornography.
More importantly, as with Ground 3(c), Movant simply misapprehends the obligation of the prosecution. Movant does not suggest that the existence of the fingerprints or DNA was not disclosed to the defense, nor that the defense was not able to conduct the DNA testing. He simply complains that the prosecution failed to investigate the information they had. That was not the prosecution's obligation. See Walker, 559 F.2d at 373.
Accordingly, this claim of prosecutorial misconduct would have been without merit, and counsel was not ineffective for failing to pursue it.
Moreover, ineffective assistance is not shown "where counsel's actions or omissions reflected tactical decisions, even if better tactics appear in retrospect to have been available." U.S. v. Stern, 519 F.2d 521, 524 (9th Cir.1975). The court need not determine the actual reason for an attorney's actions, as long as the act falls within the range of reasonable representation. Morris v. California, 966 F.2d 448, 456-457 (9th Cir.1991), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). Here, counsel had a tactical reason for not pressing the issue of the DNA evidence by asserting prosecutorial misconduct. Such an effort would likely have resulted in the prosecution pursuing the testing. At best, the testing might have shown contact with the media by a third party. This would, as discussed above, have been of limited effect. At worst, it could have reflected Movant's DNA. By not challenging the issue, counsel was able to argue the question of whose DNA it was, and the ability to make the implication
Indeed, counsel elicited testimony from Agent Shrable on the point:
(CR Doc. 112, R.T. 11/18/10 at 397-398.) Counsel made further use of the lack of testing at closing:
(CR Doc. 113, R.T. 11/19/10 at 441.)
Accordingly, counsel had a reasonable tactical basis for not pursuing this claim of prosecutorial misconduct, and thus was not ineffective for not doing so.
In his Ground 3(f), Movant argues that counsel was ineffective for failing to assert a claim of prosecutorial misconduct based upon the illegal searches and seizures. Respondent points to the lack of merit to the attacks on the searches. Movant does not reply on this issue.
Even if, assuming arguendo, that a prosecutor engages in misconduct justifying relief from a conviction by proceeding with a prosecution involving an illegal search or seizure, then for the reasons discussed hereinabove in connection with Ground 1, Movant has failed to show that there were illegal searches or seizures conducted in this case, or that nay prejudice resulted.
Accordingly, this claim of prosecutorial misconduct would have been without merit, and counsel was not ineffective for failing to pursue it.
In his Ground 3(g), Movant argues that counsel was ineffective for failing to assert a claim of prosecutorial misconduct based upon the prosecution's failure "to mention" that four of the five computers found in the home and vehicle were "clean" of any child pornography. (Memorandum, Doc. 2 at 10-11.) Respondent does not respond on this claim, and Movant does not reply.
Just as there is no obligation to investigate for exculpatory evidence, Movant points to no obligation of the prosecution to present or argue exculpatory evidence. The undersigned knows of none. At most, there is an obligation to disclose the information when it is in the prosecution's possession. Movant does not suggest that the defense was not provided that information.
Accordingly, this claim of prosecutorial misconduct would have been without merit, and counsel was not ineffective for failing to pursue it.
Movant's Ground Three is based on the contention that trial counsel was ineffective in failing to pursue challenges based on prosecutorial misconduct. For the reasons discussed hereinabove, Movant has failed to show a viable claim of prosecutorial misconduct. Accordingly, counsel was
In his Ground 4, Movant argues that trial counsel was ineffective for failing to object to the evidence of the "stories." Movant argues that there was insufficient evidence to link the stories to Movant, pointing to a brother-in-law as potential source, and arguing that the indication that the stories were authored by "Richard Self" could have been a fraudulent ruse. Further, Movant argues that the evidence was cumulative, confusing, and unduly prejudicial, serving only to paint him as a "bad man." In support of his claim, Movant cites U.S. v. Johnson, 439 F.3d 884 (8th Cir.2006) and U.S. v. Grimes, 244 F.3d 375 (5th Cir.2001). Respondent argues that the claim is meritless, pointing to counsel's objections to admission of the evidence, and objection at trial, and for the reasons discussed in connection with Ground 3(b). (Response, Doc. 15 at 25.) Movant replies that trial counsel only opposed the stories as cumulative, repetitive, and misleading, but failed to oppose them on the basis of a lack of attribution to Movant, and to assert the potential of a fraudulent use of Movant's name as an author.
Trial counsel did oppose the introduction of the stories, including arguing that they were not "intertwined" with the charged offenses and thus not necessary to presenting a comprehensible story of the commission, inadmissible under Rule 404(b), and unfairly prejudicial under Rule 403. (CR Doc. 57, Response at 5-8.) At trial, counsel renewed the objection as to each story admitted. (CR Doc. 112, R.T. 11/18/10 at 351, 352, 354.)
Movant argues that counsel should have objected on the basis of a lack of attribution to Movant. There was, however, a basis for attribution, including the fact that the stories had been found on Movant's media, purported to be authored by Movant, and reflected characteristics of Movant (e.g. his name, status as a truck driver, and purported status as a veteran of the Vietnam war). (CR Doc. 112, R.T. 11/18/10 at 350-355.) Although not irrebuttable evidence of Movant's authorship or even ownership of the stories, there was evidence which connected the stories to Movant. Thus, an objection on that basis would have been futile.
Although such matters would not have supported an "objection," trial counsel did seek to argue to the jury that the stories could not be attributed to Movant. Trial counsel argued at closing that multiple people had access to Movants residence and the computer and other media, and Movant was away for extended periods of time. (CR Doc. 113, R.T. 11/19/10 at 442-444.)
Movant complains that counsel did not present evidence of a fraudulent use of Movant's name. Movant proffers nothing to show that counsel was aware of any fraudulent use of Movant's name, or had reason to investigate. The use Movant points to was a fraudulent scheme to obtain a mortgage on a victim's property, transferring the proceeds into an account in the name of "Richard Self." (CV-08-0838-PHX-MHM, Jernigan v. Ryan, Doc. 18, Report & Recommendation at 2-3.) Movant proffers nothing to suggest that counsel was aware of this case, had any reason to pursue an investigation that would have led to the case, or that it was anything more than a coincidence that Movant's name was used in that case.
Movant suggests challenges under Rule 404(b) based on Johnson and Grimes. That rule provides: "Evidence of a crime, wrong, or other act is not admissible to
In Johnson, the court observed that, under the rule, prior bad act evidence may be admitted for purposes other than to prove criminal disposition. The defendant in Johnson was charged with possession of child pornography, did not deny possession, but asserted that the pornography had been inadvertently downloaded without his knowledge. The prosecution sought to introduce evidence that the defendant possessed paper copies of stories of rape of young girls. The Eighth Circuit observed:
Johnson, 439 F.3d at 888. Thus, the court concluded that the evidence was offered to prove criminal disposition, in violation of Rule 404(b).
Similarly, in Grimes, the Fifth Circuit faced a defendant charged with possession of child pornography, who argued that the images had been inadvertently obtained. The government sought to introduce evidence that narratives of sexual abuse of minors were also found on the computer, which had been downloaded the prior year. There, however, the court concluded that the narratives were admissible under Rule 404(b), because they were probative of intent to possess the images, an issue other than the defendant's character. Nonetheless, the Fifth Circuit went on to find that the portions of the narratives introduced were so graphic as to be unfairly prejudicial. Thus, Grimes would not have supported an argument under Rule 404(b).
Here, trial counsel's argument under 404(b) was not supported by Johnson (or Grimes) but was supported by an in depth discussion of the Ninth Circuit's opinion in U.S. v. Curtin, 489 F.3d 935 (9th Cir.2007) (en Banc). (CR Doc. 57, Response at 6-7.)
In Curtin, the defendant was charged with crossing state lines to engage in a sexual act with a minor, and when arrested had stories of sex with minors on an electronic device. The "minor" was actually an undercover agent, posing as a 14 year old girl, with whom the defendant had engaged in internet chats to arrange a meeting. The defense at trial was that the defendant believed the person he was to meet was an adult woman posing as a minor in role-playing and fantasy. The government sought to introduce the stories to show that the defendant's intent was to engage in sex with a minor, not sex with an adult. The Ninth Circuit held that the stories "had probative value with respect to the intent element of the specific intent crime for which he was prosecuted." U.S. v. Curtin, 489 F.3d 935, 959 (9th Cir.2007). Nonetheless, like the court in Grimes, the Ninth Circuit held that the trial court had erred in finding an absence of unfair prejudice under Rule 403, based in large part on the trial court's failure to actually read the stories before ruling, which also included descriptions of bestiality.
Trial counsel, who was litigating in the Ninth Circuit, not the Eighth, might have preferred to rely upon a case such as Johnson. But the controlling authority in the Ninth Circuit was Curtin, not Johnson. So, trial counsel diligently tried to distinguish Curtin on the basis that it involved a defense of a denial of the requisite intent, while Movant's defense was founded upon a denial of knowing possession. He also attempted to distinguish Curtin on the basis that there was other
Thus, trial counsel did mount as good a defense under Rule 404(b) as the controlling precedent in the Ninth Circuit would permit.
Finally, to the extent that more could have been done, trial counsel could have made a reasonable tactical decision to focus his challenges to the story evidence on their prejudicial effect. This was in line with the holdings of not only Curtin, but of Grimes as well.
In sum, Movant fails to show that counsel performed deficiently in objecting to the introduction of the story evidence. Accordingly, Ground 4 is without merit and must be denied.
In his Ground 5, Movant argues that trial counsel was ineffective in failing to admit various evidence, including: (a) that other people had access to Movant's residence, computers, computer accounts, and media, and the media (CDs and thumb drives) containing child pornography also contained files related to such third parties; (b) none of his five computers had child pornography in allocated memory; (c) only one of the five computers had child pornography in unallocated space; (d) child pornography was obtained from locations under shared possession with Movant's wife (e.g. her bathroom cabinets, amongst her belongings, and in the center of the top bunk area of the semi truck which she was standing next to when they were stopped; (e) evidence that Movant had purchased the thumb drives to download his wife's pictures; (f) witnesses that he rarely took a computer on the road, and never the one found in the truck, and never took CDs, and always bought types and brands of CDs different from those found; (g) that his thumb drives had disappeared the month before; (h) that illegal activity had occurred in his bank account which resulted in refunds; and (i) that Movant's wife was a perjurer. (Memorandum, Doc. 24 at 13-16.)
In response to Movant's argument in Ground 5(a) concerning the access by third parties to the computers, accounts, and media, Respondent argues that trial counsel elicited a variety of evidence concerning the mutual access.
(Response, Doc. 15 at 25-26.)
In reply, Movant asserts, in effect, that counsel only addressed these issues in cross examination, and did not affirmatively introduce evidence to show the mutual access. Movant identifies the following evidence available to counsel: (1) evidence from AOL (reflected in Exhibits 3 and 5 to his Memorandum (Doc. 24)); (2) report from the defense's forensic examiner showing someone else's use; (3) a receipt for the purchase of six thumb drives by Sharon Self one month before the search of the truck; (4) unidentified witnesses to the mutual access; and (5) an unidentified witness to the use of the computer by his wife. (Reply, Doc. 21 at 13-14.)
Moreover, as noted by Respondent, trial counsel did introduce evidence through cross examination of Richard Kaplan, the government's computer forensic examiner, that the use of the AOL account was not an irrefutable connection to Petitioner.
(CR Doc. 112, R.T. 11/18/10 at 307-308.) Movant fails to suggest what additional information could have been adduced from the AOL records.
Moreover, the examiner would have been subject to cross examination on a number of potentially damaging points, including: (a) findings on the Acer Aspire 5720 that reflected 480 hits on the child pornography site DreamZone, including references to Movant's email address, downloads of child pornography, visiting other child pornography sites (id. at 12); (b) findings on CD 1 of 1082 child pornography images, and videos from 2006 (id. at 18); (c) findings on CD 2 of 36 images of child pornography from February, 2008 (id.); (d) findings on one R Data thumb drive of 55 images of child pornography, created on December 31, 2008, approximately a half hour after nude images of Movant and an unknown woman were created (id); (e) findings on another R Data thumb drive of 40 WordPerfect files, all containing a header "By Richard Self" and containing incest and child pornography stories (id. at 19); (f) findings on one SimpleTech thumb drive of 60 files of child pornography (id.); (g) findings on one Verbatim thumb drive of 209 images of child pornography from December 2008 (id.); and (h) findings on another Verbatim thumb drive of approximately 5,900 images of child pornography, including banner images for DreamZone and indications that the images originated from that site (id.). Thus trial counsel had a reasonable tactical basis for declining to call the defense's forensic examiner.
Moreover, Movant fails to show how this evidence was significant. To be sure, Movant attempts to paint the thumb drives as belonging to his wife, e.g. by arguing her purchase of them, that they were in her thumbdrive case, and that they were in her favorite color. However, none of this precludes Movant's use of the thumb drives. The drives were discovered in Movant's vehicle, in a case containing thumbdrives Movant indicates were his own. (Memorandum, Doc. 24, Exhibit 20.) Moreover, Movant's ex-wife described the thumbdrives, as well as the case, as belonging to Movant. (CR Doc. 112, R.T. 11/18/10 at 250-251.)
With regard to his wife's access to his computer, Movant fails to identify who would have supplied such testimony, simply stating "Defense has a witness that could testify" to her access to the computer. (Reply, Doc. 21 at 14.) With regard to the others with access, Movant simply states that "Defense counsel had witnesses." (Id.)
A habeas petitioner may not establish ineffective assistance by simply alluding to
Presumably, Movant could have been called to testify about much of the information. However, Movant would have then been subject to cross examination on a variety of issues.
There were witnesses that Movant proposed to the trial court to testify concerning others' access to the computers, and Movant argued that trial counsel wrongly refused to call them, i.e. his daughter Robin, his stepdaughter Laura and her husband Jim Holdgrafer. (CR Doc. 112, R.T. 11/18/10 at 237-239.) Counsel explained to the trial court:
(CR Doc. 112, R.T. 11/18/10 at 240-241.) Thus, at least as to these witnesses, trial counsel had strong tactical reasons to not call them. The more people who had access to the computer who were called to testify, who would then deny responsibility for the child pornography, the more evidence there would be pointing to Movant. And Movant's daughter bore special risks. The trial court ultimately precluded introduction of the photographs found on one of the thumb drives "of Defendant and his adult daughter naked, in his tractor-trailer, wearing only santa hats," finding that they were "not child pornography and likely
Even if the Court could conclude it might have taken a different approach, that would not justify a finding of ineffective assistance. "Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation." Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980). Movant proffers nothing to suggest that the decision was outside the wide range of professionally competent assistance.
Moreover, there was substantial, undisputed evidence before the jury of such access. Defense counsel elicited testimony from Dean Sehm, Movant's stepdaughter's husband, that Movant's stepson, Jim Holdgrafer had access to Movant's house. (CR Doc. 111, R.T. 11/17/10 at 171.) And Sehm testified that Movant's deceased wife had lived in the home and used a computer. (Id.) Defense counsel elicited testimony from Agent Koski that Holdgrafer had let them into Movant's house to execute the search warrant. (Id. at 213.) The prosecution elicited testimony from Movant's ex-wife that Movant's special needs daughter lived with them and had a computer that she used in the home, and that the ex-wife's brother had lived with Movant for some time in 2008-2009. (CR Doc. 112, R.T. 11/18/10 at 256-257.) Defense counsel elicited testimony from Movant's ex-wife that Movant's daughter Robin had lived in his home in 2009, and that Jim and Laura Holdgrafer, Berneta and Dean Sehm, and Robin all had keys to the home and that Laura Holdgrafer's sister, Sandy, and a respite worker also came to the house. (Id. at 261-263.) Through this testimony, counsel was able to provide potential other sources for the child pornography, without having them dispelled by providing opportunities for those sources to disclaim using the computer or other responsibility. Movant proffers no reason to believe that further evidence on this point would have swayed the jury from concluding that the child pornography found was attributable to Movant.
There was evidence proffered to show that the child pornography was not in allocated space on Petitioner's computer. On direct examination, the prosecution's computer forensic examiner Potosky testified that he examined the hard drive of Petitioner's Acer laptop (trial exhibit 5A) and although he found child erotica and adult pornography, he reported no child pornography. (CR Doc. 112, R.T. 11/18/10 at 336-337.) On the other hand, he also testified that it had been used to access the Dreamzone child pornography website and a folder containing child pornography on one of the thumb drives. (Id. at 346.)
Movant proffers nothing to suggest that any of this evidence would have altered the outcome of the trial. The prosecution proffered substantial evidence tending to show that Movant had accessed the Dreamzone child pornography website, as well as the thumbdrives containing child pornography, with his laptop. Moreover, the prosecution proffered substantial evidence tending to show that Movant kept child pornography on removable devices and CD drives, etc., rather than preserving it on his computers. Not only was the presence of child pornography saved on the computers unnecessary to the prosecution's case, its absence was not inconsistent
In support of this argument, Movant cites a series of cases attempting to define possession in cases where contraband is not found on the defendant's person, but in an area under shared control with others. For example, Movant cites Delgado v. U.S., 327 F.2d 641 (9th Cir.1964). In that case, a search of the defendant's home revealed marijuana in the drawer of a night stand next to a bed shared by the defendants. The government failed to introduce any evidence to show possession by either defendant or even both. "But here it is pure speculation as to whether Rodriguez alone, or Delgado alone, or both of them, had possession. No doubt one of them did; perhaps both did." 327 F.2d at 642.
In contrast, here there was substantial evidence to link the child pornography to Movant (e.g. the ties to Movant's computer, his writing on the CDs and thumbdrives, the stories showing his authorship and involving his personal details tending to show his interest in pedophilia, etc.)
Moreover, there was evidence before the jury that permitted the inference that there was shared access. This was not child pornography, erotica, etc. found in some hidden place to which Movant had no access or which jurors might presume were not accessible to others. Rather they were found in computers and thumbdrives and bathroom cabinets that a reasonable juror would infer was accessible at least to Movant's wife. Movant' fails to proffer anything to suggest that direct testimony on this point would have altered the outcome of the proceeding. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.
Moreover, Movant's ex-wife testified that various thumbdrives had been used to download her pictures. (CR Doc. 112, R.T. 11/18/10 at 251.) But she also testified that she had never personally used the thumbdrives, but relied on Movant to download pictures to them. (Id.) Movant fails to suggest what additional exculpatory inference would have arisen from evidence that Movant had purchased thumbdrives specifically for that purpose, and thus fails to show a reasonable probability that direct testimony on this point would have altered the outcome of the proceeding. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.
Moreover, the testimony at trial was that the computer was even specially equipped to be secured to the steering wheel to be used in his truck. (CR Doc. 112, R.T. 11/18/10 at 248.)
Perhaps Movant believes that this would have called into question the charges from the Dreamzone website on Movant's bank card. However, those charges were attributed to Movant by the evidence on his computers (e.g. emails) showing access to and purchasing of access on the Dreamzone site. Movant fails to show a reasonable probability that evidence on this point would have altered the outcome of the proceeding. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.
Exhibit 12 is a Petition for Order of Protection filed by Movant's ex-wife. He contends she lied when asserting he had asked her to take his disabled daughter out of the state, and that he had been arrested for sexually abusing his other daughter.
Exhibit 17 is his ex-wife's Petition for Annulment of Marriage, dated March 4, 2010. She alleged that he was "currently under investigation and is on the run from the FBI, Homeland Security, Immigration and Customs Enforcement for suspected drug smuggling" and that he had a "prior arrest for sexual assault against his daughter." (Memorandum, Doc. 24, Exhibit 17, Petition at 2.)
Federal Rule of Evidence 608(b) provides that "extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness." Thus, trial counsel would not have been able to introduce evidence to show that Movant's ex-wife had lied in these two petitions.
Moreover, Petitioner proffers no evidence to counter the contentions asserted in these documents. He simply provides his own bald assertions that they were false.
To be sure, he provides a letter from his daughter, Robin, denying any molestation of her disabled sister. (Memorandum, Doc. 24, Exhibit 22.) However, this was based on her assertion that she was "told the story how she accused my dad of molesting her ... [and when confronted] it wasn't true." (Id. at 1-2.) Thus, any testimony by Robin on this point would have been hearsay, and inadmissible. See Federal Rule of Evidence 802 et seq.
Moreover, counsel would have had a tactical reason to not impeach Movant's exwife on the issue of the molestation allegations, which would have brought the allegations to the attention of the jury, potentially inviting assumptions of molestation and incest.
Movant fails to support this claim by showing evidence available to and usable by trial counsel to impeach Movant's ex-wife.
Moreover, even had counsel successfully impeached Movant's ex-wife on some or all of these points, the undersigned cannot find a reasonable probability that the out-come of the proceeding would have been different. Her testimony was of little consequence in the proceeding, providing little more than affirmation that the laptop and cellular wifi belonged to Movant (which Movant does not deny) (CR Doc. 111, R.T. 11/17/10 at 229; CR Doc. 112, R.T. 11/18/10 at 247-249), that the thumbdrives and CD discs belonged to Movant and had his handwriting on them (CR Doc. 112, R.T. 11/18/10 at 250-255), and that there had been fictional stories in the home but they did not belong to her (id. at 256) (which Movant does not deny). There was other substantial evidence tying Movant to the thumbdrives and CD discs, e.g. the trace evidence on the computers, the "stories" and their connections to Movant, and the evidence of Movant's access to the Dreamzone website.
Accordingly, Movant has failed to support this claim of ineffective assistance.
In his Ground 6, Movant asserts that trial counsel was ineffective because counsel failed to have the presentence report corrected and refused to let the probation officer interview Movant, members of Movant's family, or any of Movant's friends. Respondent argues that Movant fails to show that such interviews would have altered the sentence, and that the record indicates that Movant was provided an opportunity to be interviewed, but declined. (Response, Doc. 15 at 27-28.) Movant replies that defense counsel declined the interview, and that an interview would have permitted him to review the presentence report and there were various inaccuracies in the report. (Reply, Doc. 21 at 19-23.)
Movant sought a variance or departure based upon his age and ill health, which the Court rejected. (Id. at 5-6.)
Movant complains that there were multiple references in the presentence report to various convictions or arrests. That is true. (See Presentence Report, Doc. 28 at 11-13, 19.) However, the Report also concluded that none of those were "scoreable," and relied upon them only to note that they were "concerning" because they involved allegations of "crimes of violence," e.g. false imprisonment, assault, aggravated battery, rape under threat of harm, assault to commit rape/robbery, etc. (Id. at 19.)
To the extent that Movant contends that his participation in the interview would have corrected false allegations concerning incest, rape of his girlfriend, etc. Movant proffers nothing to suggest that he had anything to provide the probation officer other than his denials to counter the allegations, and fails to proffer anything to show that the outcome would have been different had he provided those denials.
Moreover, there is no indication that the Court considered any allegations of (1) incest, (2) molestation, (3) forcible rape, or any of the (5), (8) arrests not leading to convictions, or any of the (6), (7), (9) prior convictions. There is no indication the Court considered, nor would there be any reason for the Court to have considered or been swayed by the errors in (3) an alias, or (4) Movant's date of birth or social security number. Movant proffers no suggestion how this would have altered the outcome. As noted, the sentence given to Movant was at the bottom of the guidelines. The undersigned cannot find a reasonable probability that had Movant proffered his denials and corrections on these various disputed issues that he would have received something less than the bottom of the guidelines.
Thus, even had counsel objected to these matters and obtained corrections, there is not a reasonable probability that Movant's sentence would have been altered.
With regard to the interviews themselves, with one exception, Movant fails to proffer any information he, his family, or his friends would have provided the probation officer that would have altered his sentence.
(CR Doc. 112, R.T. 11/18/10 at 402.) For those reasons, counsel could have made a strategic decision to not have Movant meet with the probation officer.
Movant does contend that had his daughters been interviewed, they would have countered assertions that Movant had molested them. Assuming the probation officer and/or the Court would have found such denials credible, there is no indication that this would have altered the outcome of the proceeding. As noted above, the allegations of molestation were not relied upon by the Court in sentencing Movant.
The second part of Movant's argument is that if he had been allowed to go to the interview, he would have been able to correct various errors in the presentence report. However, as discussed hereinabove, Movant has failed to show that those errors affected the outcome of the proceeding. Moreover, as discussed hereinabove, the risks of such an interview were strong support for strategic decisions to deny the interview. Further, there was no reason to encounter those risks, given the fact that the report was available to Movant and to counsel, and they were entitled to object to any inaccuracies. See Fed. R.Crim.P. 32(f).
To be sure, Movant asserts in his Reply that he never received the report from the probation officer or defense counsel, and never reviewed the report with counsel. (Reply, Doc. 21 at 19-20.) However, counsel represented to the Court that she had reviewed the presentence report with Movant. (CR Doc. 114, R.T. 3/14/11 at 3.) Movant did not counter that representation. When later asked whether he had anything he would like to say, Movant responded "No, sir." (Id. at 8.) Further, Movant made explicit references to the "Probation Report" in his pre-sentencing letter to the trial court, including referencing the allegations of molestation. (CR
Ground 6 is without merit, and should be denied.
In his Ground 7, Movant argues that counsel was ineffective by failing to (a) present evidence from the forensic expert that someone else could have committed the crime. (Motion, Doc. 1 at 11.) Movant further argues counsel failed to: (b) pursue discovery and disclosures from the prosecution (Memorandum, Doc. 24 at 19); (c) investigate whether another person authored the "stories" (id.); (d) object to the "stories" (id. at 20); (e) failing to call witnesses for the defense (id.); (f) present a defense (id.); (g) investigate information that Movant did not own a computer until May 2008, that the other computers were clean, and available for others to use, and that program used to write the stories was not on his computer (id. at 20-21); (h) show that the computers could not have been placed on the bottom bunk of the truck (id. at 21); (i) impeach the government's witnesses (id.); and (j) object to references to his ex-wife as such at trial even though they remained married (id. at 22).
Respondents argue that Movant is simply disagreeing with counsel's trial strategy, and the strategy was reasonable, and the outcome at trial would not have been altered. (Response, Doc. 15 at 28-30.)
Movant replies by arguing the merits of his claims and by asserting additional failures of counsel (e.g. to present bank statements showing illegal activity on account, to impeach his ex-wife, to impeach Agent Shrable, to pursue undisclosed handwritten stories, to present evidence of the disappearance of his ex-wife's brother, to have the jury instructed on his theory of defense etc.). The undersigned does not reach the purported deficiencies of counsel raised for the first time in the reply. "The district court need not consider arguments raised for the first time in a reply brief." Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007).
He fails to suggest (b) what additional discovery or disclosures from the prosecution would have provided to assist in his defense.
He fails to suggest (c) what additional investigation could have been done to establish that someone else authored the "stories."
He fails to suggest (g) what other information was available to show that Movant did not own a computer until May 2008. He does reference the manufacture date, etc. of the laptop seized from his truck. That would not however, preclude Movant from having owned a different computer in the past. For that matter, Movant was not required to own a computer to have downloaded the child pornography. Similarly, the absence of the WordPerfect program from the computers seized does not establish that he did not have access to a different computer in the past which had the software available, or that he did not have access to a computer capable of saving the documents in a WordPerfect format.
Movant fails to suggest who could have testified (h) that the computers could not
Moreover, there is not a reasonable probability that this evidence would have altered the outcome. Movant does not suggest that the computers were not his and his wife's, merely that they were found in an unexpected location. Perhaps, if the only place evidence of child pornography had been found was on these laptops, there might be some persuasive effect to showing the unusual placement. Given all the other connections pointing to Movant, there is no reasonable probability that the outcome would have been changed.
Finally, Movant fails to suggest any prejudice from counsel's failure to object to references to his ex-wife as such at trial even though they remained married. Movant's marital status was not an issue in the case, and his ex-wife testified that she had filed for an annulment and the matter was still pending. (CR Doc. 112, R.T. 11/18/10 at 259, 260.)
His allegations concerning (d) objections to the "stories" is without merit. As discussed hereinabove in connection with the related Ground 3(b), arguing counsel was ineffective in failing to assert a claim of prosecutorial misconduct in relation to the "stories," counsel did object to their introduction. Movant fails to show what additional arguments could have been raised.
His allegations regarding (e) failing to call witnesses for the defense is without merit. As discussed hereinabove in connection with the related Ground 5(a), arguing counsel was ineffective in failing to present evidence that others had access to the computers, the witnesses proposed by Movant could provide little assistance beyond denying their own culpability, and counsel had valid strategic reasons for not calling them.
Movant's allegation that counsel (f) failed to present a defense is without merit. Counsel asserted a variety of procedural defenses, including a motion to suppress, and opposing the introduction of various evidence, and cross-examining witnesses in an attempt to convince the jury that the government could not prove its case beyond a reasonable doubt. While complete failure to defend a criminal case is ineffective assistance, the constitution does not require counsel to manufacture a defense where none exists. See U.S. v. Hamilton, 792 F.2d 837 (9th Cir.1986). "The sixth amendment does not require counsel to invent a defense." Haynes v. Cain, 272 F.3d 757, 764 (5th Cir.2001), rehr'g granted on other grounds, 284 F.3d 604 (5th Cir.2002).
Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir.1995).
Movant's arguments that (g) counsel failed to show that the other computers were clean, and available for others to use is without merit for the reasons discussed
Movant's allegations that counsel (i) failed to adequately impeach the government's witnesses is without merit for the reasons discussed hereinabove in connection with Grounds 3(d) (prosecutorial misconduct re perjured testimony) and 5(i) (impeachment of ex-wife).
For the foregoing reasons, Ground 7 is without merit and should be denied.
Liberally construed, in his Ground 8, Movant argues that "counsel" was ineffective for: (a) failing to object to the abuse of discretion in refusing to provide new counsel; (b) failing to object to a conviction for the greater and lesser included offenses (Motion, Doc. 1 at 12); and (c) failing to object to the imposition of multiple special assessment fees despite the decision to impose concurrent sentences (Memorandum, Doc. 24 at 24-25.)
Respondent argues that the claim is really an assertion that the trial court abused its discretion in denying new counsel and that such claims should have been raised on direct appeal and are now procedurally defaulted. Respondent further argues that the procedural default is not excused by an ineffectiveness of appellate counsel in failing to bring the claim, because the claim is without merit. Finally, Respondent argues that the request for new counsel would have been without merit and defense counsel performed adequately and Movant fails to show any prejudice. (Response, Doc. 15 at 30-32.)
In his Reply, Movant reiterates that his claim is one of ineffective assistance, and argues the merits of his request for new counsel.
Movant also asserts new claims in his reply regarding: failure to object to the admission of the "stories," and failure to object to his wife testifying against him before the termination of their marriage. (Reply, Doc. 21 at 29-30.) The undersigned does not reach these purported deficiencies of counsel raised for the first time in the reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007).
Of course, to the extent that Movant might have intended to assert direct challenges on these decisions of the trial court, the claims would be procedurally defaulted for failing to raise them on direct appeal. The general rule is "that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. U.S., 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Thus, a section 2255 movant raising a claim for the first time in
To the extent that Movant intended to assert the ineffective assistance of appellate counsel as cause to excuse his failure to present the claims on direct appeal, because the underlying substantive claims are without merit (for the reasons discussed hereinafter), the undersigned could not find that appellate counsel performed deficiently in failing to raise the claims, and could not find prejudice, either to support the prejudice component of the claim of ineffective assistance of appellate counsel, or to support the prejudice component of the assertion of "cause and prejudice," to excuse the procedural default.
Movant does not show that trial counsel performed deficiently at the time of the request for new counsel. For example, Movant does not suggest what other arguments should have been made, or how they would have altered the outcome of the proceeding. To be sure, Movant argues that the trial court wrongly rejected the request, but he does not assert that the trial court was not armed with the requisite facts or law to address the issue. To the contrary, he asserts that the trial court held a hearing and had "knowledge that [trial counsel] was no[t] investigating nor was she going to be calling witnesses." (Memorandum, Doc. 24 at 23.)
Nor does Movant show prejudice from any purported deficiency.
Here, the judgment against Movant assessed $600 in special assessments against Movant. (CR Doc. 97 at 1.) Under 18 U.S.C. § 3103(a)(2)(A), the Court was required to assess $100 for each felony offense. See U.S. v. Luongo, 11 F.3d 7, 10 (1st Cir.1993).
Still, Movant cites a series of cases where the courts found prejudice because (although the defendant was sentenced to concurrent sentences) multiple special assessments were levied. (Memorandum, Doc. 24 at 24.)
The first set of cases involve double jeopardy violations, in which the multiple special assessments established the multiple punishments despite concurrent prison sentences. See e.g. U.S. v. Robertson, 606 F.3d 943 (8th Cir.2010) (requirement of prejudice when applying plain error review of double jeopardy claim met by multiple special assessments); U.S. v. Christner, 66 F.3d 922 (8th Cir.1995) (same); U.S. v. Grubbs, 829 F.2d 18 (8th Cir.1987) (same). See also Rutledge v. U.S., 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (multiple special assessments amounted to double punishment for double jeopardy purposes). Here, however, for the reasons discussed hereinabove in connection with Ground 2, Movant fails to make out a double jeopardy violation, not because of the lack of multiple punishments, but because the offenses are separate offenses. Thus these double jeopardy cases are inapposite.
The second type of case cited by Movant involved the "concurrent sentence doctrine."
1 Federal Criminal Appeals § 3:54. See Ray v. U.S., 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987) (concurrent sentence doctrine inapplicable because of multiple special assessments). Here, however, Movant has not been denied review of a particular conviction based upon his having received concurrent sentences. Accordingly, Ray is inapposite.
In sum, none of the cases cited by Movant preclude the imposition of multiple special assessments where, as here, the defendant has been properly convicted of multiple offenses. Accordingly, Movant has failed to show a viable challenge to the multiple special assessments which counsel could have asserted.
For the reasons set forth hereinabove, Movant has failed to provide any ground for relief. Accordingly, the Motion to Vacate must be denied.
Here, the Motion to Vacate is brought pursuant to 28 U.S.C. § 2255. The recommendations if accepted will result in Movant's Motion to Vacate being resolved adversely to Movant. Accordingly, a decision on a certificate of Appealability is required.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate
Filed: Oct. 31, 2014.
