JOHN Z. BOYLE, Magistrate Judge.
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Defendant Marlon Moore has filed a pro se Amended Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody pursuant to 28 U.S.C. § 2255, seeking to vacate or set aside a sentence imposed by the Court. (Doc. 8.)
Petitioner's claim that counsel failed to assert that the government threatened a witness prior to an evidentiary hearing is meritless. Counsel identified the implied threat and argued (unsuccessfully) that the government acted to prevent the witness from testifying at the hearing. Petitioner's argument that counsel should have raised a confrontation argument regarding a confidential informant is also meritless. Petitioner's final argument regarding a Miranda violation is procedurally defaulted because Petitioner did not raise the issue on direct appeal. The Court therefore recommends the Amended Petition be denied without an evidentiary hearing.
On July 17, 2012, an Indictment charged Petitioner with the offense of Possession of Marijuana with Intent to Distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D). (CR Doc. 2.) On August 26, 2013, the Court sentenced Petitioner to 46 months of imprisonment followed by three years of supervised release. (CR Doc. 81.)
The Ninth Circuit Court of Appeals summarized the facts of the case as follows:
On October 21, 2015, Petitioner mailed the instant, timely, Amended Motion to Vacate, which advances three grounds for relief:
(Doc. 8.) On October 28, 2015, the Government filed a Response. (Doc. 9.) On November 12, 2015, Petitioner filed a Reply (Doc. 11).
On April 27, 2016, the Court directed Petitioner's counsel and Petitioner to file any additional evidence related to Ground One. (Doc. 14.) On May 3, 2016, Petitioner's counsel filed an affidavit stating that counsel raised the issue with the District Court. (Doc. 15-1 at 1.)
Defendant asserts "counsel was ineffective for failing to disclose" to the Court that "Ms. Jones was threatened by the prosecutor not to testify [on] behalf of Mr. Moore, which should have been prosecutorial misconduct." (Doc. 8 at 5.) Defendant "contends that Ms. Jones counselor told her that the prosecutor said that if she testified for Mr. Moore, she would be arrested and her children taken into child services." (Id.) In his Reply, Defendant asserts the "government clearly caused Ms. Jones to invoke her Fifth Amendment rights [due] to the fact of the retribution she would face if testifying in Mr. Moore defense." (Doc. 11 at 2.)
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (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. Although a 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. Petitioner bears the burden of affirmatively showing counsel's conduct was "outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687-90. Petitioner must overcome a strong presumption that his counsel's representation was within a wide range of reasonable professional assistance. See United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1996).
Contrary to Petitioner's claim, Petitioner's counsel disclosed to the Court the potential threat to witness Jones. Petitioner's counsel filed a motion requesting immunity for witness Jones at a suppression hearing. (CR Doc. 40.) Counsel requested immunity because the government informed counsel that incriminating questions would be asked of Ms. Jones during the hearing.
Petitioner argues "counsel was ineffective for failing to raise a confrontation issue to allow him to cross examine the case agent" regarding statements made by the confidential informant. (Doc. 8 at 6.) Petitioner argues that the confrontation argument would have allowed Petitioner to "subpoena the informant" who was in custody at the time. (Id.) Petitioner argues he could have determined "if there was a confidential informant at all." (Id.)
On January 23, 2013, the government called Agent Scott Wagoner to testify at an evidentiary hearing regarding a motion to suppress. The agent was asked why he began surveillance at Petitioner's address. The agent testified: "On the evening of January 18th, I received some information that approximately 100 pounds of marijuana was received by Marlon Moore. Or I should say not by name, but by — I was told it was a black male of Jamaican descent." (CR Doc. 51 at 41.) The government did not introduce statements from the informant, and made no other reference to the informant on direct examination. Petitioner's counsel cross-examined the agent regarding the reliability of the confidential informant (CR Doc. 51 at 78), the informant's "criminal record" (id. at 79), and the informant's source of information (id. at 84). When the government objected to the relevance of continuing questions regarding the informant, the Court stated:
(CR Doc. 51 at 85.)
Counsel was not ineffective for failing to "raise a confrontation issue" for the purpose of identifying the informant or calling the informant as a witness. The informant was not a witness at the evidentiary hearing, and no statements of the informant were introduced. See Crawford v. Washington, 541 U.S. 36, 51 (2004) (the Confrontation Clause "applies to `witnesses' against the accused"). The reference to the informant explained why the agents were present at Petitioner's address, which did not implicate Petitioner's right to confrontation. See United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2012) (finding no Confrontation Clause violation because "anonymous complaints were not offered to prove that Wahchumwah was selling eagle parts, but merely to explain why the federal agents began investigating him"). Counsel was not ineffective because there was no confrontation issue for counsel to present. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) ("The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.").
Petitioner argues the government violated his "Fifth Amendment Miranda rights when he requested an attorney, but was told that it was too late to call one." (Doc. 8 at 7.) Prior to trial, Petitioner filed a motion alleging "[i]t is not clear that Mr. Moore fully understood his Miranda rights, or gave an unambiguous waiver." (CR Doc. 21 at 2.) The Court found that "Defendant never asked to stop talking and never requested an attorney." (CR Doc. 48 at 11.) The Court concluded that "[c]onsidering the totality of the circumstances, the Court finds by a preponderance of the evidence that Defendant's waiver of his Miranda rights was voluntary, knowing, and intelligent." (Id. at 13.)
Petitioner did not bring this claim in his direct appeal, and he is procedurally barred from raising it for the first time in a § 2255 proceeding. United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (stating that a "§ 2255 Petitioner procedurally defaults his claims by not raising them on direct appeal"). Petitioner can overcome procedural default by a showing of either cause and actual prejudice, see United States v. Frady, 456 U.S. 152, 167-68 (1982), or actual innocence, see Bousley v. United States, 523 U.S. 614 (1998).
Petitioner acknowledges his counsel failed to present this issue, and he offers no cause or prejudice to excuse his default. Petitioner presents no evidence of actual innocence. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc) (holding that a prisoner's freestanding innocence claim must "affirmatively prove that he is probably innocent"). Instead, the evidence demonstrates Petitioner "admitted that the marijuana was his and gave details as to his sources and his shipping methods." Moore, 770 F.3d at 812.
In his Reply, Petitioner asks the Court to consider whether the Batson claim denied in his direct appeal should be reconsidered under Crittenden v. Chappell, 804 F.3d 998, 1006 (9th Cir. 2015) (holding "Teague [v. Lane, 489 U.S. 288 (1989)] did not prohibit the district court from applying the standard articulated in Cook [v. LaMarque, 593 F.3d 810 (9th Cir. 2010)].
Petitioner is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (b). Here, the Court sought additional documentation regarding Petitioner's claim. Williams v. Woodford, 306 F.3d 665, 688 (9th Cir. 2002) ("[A] district court in a habeas proceeding `need not conduct full evidentiary hearings,' but may instead `expand the record . . . with discovery and documentary evidence.'") (quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (per curiam)). For Ground One, Petitioner and his counsel submitted supplemental affidavits to the Court documenting the conduct of the prosecutor toward witness Jones. (Docs. 15, 17.) As discussed above, Petitioner's counsel identified Petitioner's "threat" issue and argued that the government's "actions were with the purpose of preventing Ms. Jones from not testifying." (CR Doc. 51 at 12.) Ground Two is also meritless, and Ground Three is procedurally defaulted. The record conclusively demonstrates Petitioner is not entitled to relief, and the motion for an evidentiary hearing should be denied. See United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a "district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the Petitioner is not entitled to relief"
Accordingly,
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
