ORDER DENYING SECTION 2255 MOTION

DEAN D. PREGERSON, District Judge.

Presently before the court is Defendant/Petitioner Nathaniel Newhouse's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Having considered the submissions of the parties, the court denies the motion and adopts the following Order.

I. Background

After a jury trial, Defendant was convicted of three counts of possession with the intent to distribute controlled substances. (Dkt. 197.)1 The court sentenced Defendant to 96 months imprisonment and three years of supervised release. (Id.) The Ninth Circuit affirmed Defendant's conviction and the district court's denial of Defendant's motion to suppress evidence. United States v. Newhouse, 464 Fed. Appx. 181 (9th Cir. 2012). In holding that officers had probable cause to arrest Defendant, the court provided the following background:

Id.

Defendant now moves for a new trial or, in the alternative, a reduction in sentence to 48 months. Defendant argues that relief is warranted because he received ineffective assistance of counsel. Specifically, Defendant contends that counsel was ineffective because he (1) failed to obtain surveillance video from the donut shop, (2) convinced Defendant to waive his right to testify, and (3) failed to adequately prepare for trial.2

II. Legal Standard

Section 2255 allows federal prisoners to file motions to vacate, set aside, or correct a sentence on the ground 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). To show ineffective assistance of counsel, a defendant must demonstrate (1) that counsel's performance was deficient and fell below an objective standard of reasonableness, meaning "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and (2) the defendant was prejudiced as a result and deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984).

III. Discussion

A. Counsel's Failure to Obtain Surveillance Footage

Defendant argues that government agents falsely testified as to what they observed in the donut shop parking lot. Defendant contends that the donut shop's surveillance camera footage would have established that the agents did not have probable cause to arrest Defendant. He further asserts that he asked his counsel to obtain the footage, and that, had counsel introduced the footage, "the result of the district court's motion to suppress and trial would have been different."3

Defendant's argument does not satisfy either prong of the Strickland test. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. The court's assessment must look to both the evidence already known to counsel and to "whether the known evidence would lead a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510, 527 (2003).

Here, as an initial matter, is not clear whether the surveillance footage to which Defendant refers exists. Even assuming that it does, and that Defendant did ask his counsel to obtain it, counsel's failure to do so was not unreasonable. Defendant argues that the footage would have revealed what really happened in the donut shop parking lot. According to Defendant, he agreed to meet Leslie Wilson at the donut shop parking lot to give his opinion regarding the authenticity of several prescriptions others had had filled. (Declaration in Support of Motion at 1.) Defendant also asked his wife to meet him at the donut shop to deliver money to him. (Id.) When Defendant arrived at the donut shop an hour later, Wilson's car was already there. (Id. at 2.) Defendant's wife arrived a few minutes later. (Id.) Wilson entered Defendant's car with a bag of medication, then returned to her car. (Id.) Defendant then walked to his wife's car to retrieve the money he had asked her to bring. (Id.)

Defendant's version of these events does not differ from the version elicited through testimony at trial. Indeed, the Ninth Circuit's recitation of the facts of the case is consistent with Defendant's version. Thus, even if surveillance footage of the events in the parking lot did exist, and assuming Defendant did ask counsel to obtain it, it would not have been unreasonable for counsel to conclude that the footage was not necessary, as it would not have added anything to the evidence already known to counsel.

Even if counsel had unreasonably failed to investigate the camera footage, Defendant cannot show that he was prejudiced as a result. As discussed above, Defendant's version of events is consistent with the trial testimony, as recounted by the Ninth Circuit. The Ninth Circuit concluded, based upon those facts, that officers did have probable cause to arrest Defendant and that the district court properly denied Defendant's motion to suppress. Defendant cannot show, therefore, that the outcome of the suppression motion would have been different if camera footage depicting those same facts had been introduced.

Nor can Defendant show that the absence of camera footage prejudiced him at trial. With respect to this argument, Defendant contends that the video would have shown that, contrary to the agents' testimony, he did not approach the rear of his own car at any time, he had not started his car when agents pulled into the parking lot and blocked his car with their own vehicle, and he did not have any pill bottles in his pockets or in his glove compartment. (Decl. at 2-3.) It is unlikely that any of these facts would have resulted in acquittal. Whether Defendant's car was running or not and whether or not he approached his trunk immediately prior to his arrest were not central issues in the case. Nor is there any dispute that Defendant possessed all three of the substances at issue. Defendant argues that two of the drugs were in a pharmacy bag on top of the car, and not on his person or in his glove compartment, while the third, consistent with agents' testimony, was found in his trunk. (Decl. ¶¶ 2(g), 5.) Thus, the camera footage would only have confirmed that Defendant possessed the drugs.

Even if the camera footage would have called into question the entirety of the arresting agents' testimony, the government introduced other compelling evidence of Defendant's guilt. Two different witnesses testified that they entered into a scheme with Defendant and others to obtain monthly painkiller prescriptions from unethical doctors and then pass those prescriptions on to Defendant in exchange for cash. (CR 222, 135-149; 187-194.) One witness also testified that he saw bags of medication inside the trunk of Defendant's car "and people [Defendant] was doing business with. It is like a circus out there." (Id. at 151, 169-70. This testimony aligned closely with later testimony from a government expert about illegal prescription drug distribution schemes in general. (Id. at 251-269.) In light of this evidence, it is highly unlikely that anything the surveillance camera footage of the arrest might have shown would have changed the jury's decision to convict Defendant.

B. Waiver of Right to Testify

Next, Defendant asserts that counsel convinced him to waive his right to testify in exchange for the government's agreement not to introduce evidence of controlled substances discovered at Defendant's home and storage locker. Defendant argues that this advice was "faulty" because "the medication was being temporarily stored to facilitate [Defendant's] and another person's caretaker responsibilities." Defendant argues that, had he been "correctly advised," he would have testified on his own behalf, as "the contents of all the bottles were later dumped into a plastic bag and shown to the jurors at trial." (Decl. ¶ 7.)

The agreement to which Defendant refers was disclosed to the court prior to trial, both in writing and at a pre-trial hearing. (Dkt. 136 at 1; Dkt. 214 at 6.) The government agreed that it would "not present or rely on [evidence seized from Defendant's home or from his storage locker] at trial, conditioned on defendant Newhouse not opening the door to admission of such evidence. . . ." (Dkt. 136 at 1:21-23.) Thus, contrary to Defendant's argument, it does not appear that the parties ever reached an agreement that would have required Defendant to waive his right to testify.4 Further, it is unclear from the record and the submissions of the parties whether the plastic bag shown to jurors at trial contained pill bottles seized from Defendant's car or from his home and storage locker.

Regardless, Defendant cannot satisfy the second, prejudice prong of Strickland. As described above, the government presented strong evidence of Defendant's guilt. Furthermore, it is far from clear that, in the absence of counsel's alleged advice, Defendant would have testified in his own defense. The government possessed a great deal of impeachment evidence, including evidence of money laundering and tax fraud and, at the very least, Defendant's prior convictions for perjury and welfare fraud. (Dkt. 117.) Even if Defendant had testified, the testimony he now claims he would have given would not have helped his case. Defendant criticizes counsel's recommendation as faulty because "the medication was being temporarily stored to facilitate [Defendant's] and another person's caretaker responsibilities." The court, however, granted a motion in limine precluding this very argument. (Dkt. 137.) As the government contended, even if Defendant had been storing and distributing medication purely in his capacity as a caretaker, that would not have been a defense to the charges against him, absent authorization from the Attorney General to distribute controlled substances. (Dkt. 113 at 4-6.) There is no dispute that Defendant had no such authorization. Thus, even if Defendant testified, his testimony would have been, at best, irrelevant, even if allowed. Defendant could not, therefore, have been prejudiced by counsel's recommendation that he not testify.

C. Counsel's Preparation for Trial

Lastly, Defendant argues that counsel "stated on the record that he was not adequate[ly] prepared for trial." That statement does not appear on the page of the transcript Defendant has identified, or anywhere else in the document to which Defendant cites. The government represents that counsel has denied being unprepared for trial.5 The court's own review of counsel's pre-trial representation and performance during trial itself does not reflect any lack of preparation on counsel's part. Nor does Defendant state what counsel should have done differently to prepare for trial or failed to do in advance of trial. The only deficiency Defendant alleges is counsel's failure to contact co-Defendant Deborah Barker. Defendant does not explain how Barker's testimony would have aided him and, in any event, Barker died over a year before Defendant's trial began. (Dkt. 198.) Defendant has not satisfied either of the Strickland prongs with respect to counsel's preparation for trial.

IV. Conclusion

For the reasons stated above, Defendant's Section 2255 motion is DENIED.

IT IS SO ORDERED.