DONETTA W. AMBROSE, Senior District Judge.
Following a bench trial, Defendant was convicted on two counts of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. On September 28, 2009, he was sentenced to a term of 120 months imprisonment, followed by a term of supervised release. The Court of Appeals affirmed his conviction and sentence. Subsequently, Defendant embarked on a prolonged campaign to obtain evidentiary materials, conducted via motions practice and FOIA requests. In the midst of these proceedings, Defendant filed his Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255, which was then stayed at his request pending the outcome of his FOIA proceeding. The stay was eventually lifted, again at Defendant's request, and his Section 2255 arguments are now ripe for review. In assessing Defendant's Motion, I have carefully considered the entire record, including supplemental materials filed on December 17, 2013, all of Defendant's exhibits, and materials that Defendant received leave to file in connection with his Motion to Expand the Record.
Defendant's Section 2255 Motion is grounded in ineffective assistance of counsel. In brief, he avers that counsel was ineffective in several respects, including by failing to properly deal with evidence relating to cellular telephones; failing to properly deal with evidence from the Drug Enforcement Administration ("DEA") laboratory; and failing to object to fabricated government evidence. Also pending are Defendant's Motions for an evidentiary hearing, to issue subpoenas to two law enforcement agencies, and for an order directing the Clerk of Courts to provide him with certain documents. The Government has responded to all pending Motions, and all are ripe for decision.
For the following reasons, after careful consideration of the parties' submissions, Defendant's Motions will be denied.
Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure."
In the context of an ineffective assistance of counsel claim, a court should be "highly deferential" when evaluating an attorney's conduct; there is a "strong presumption" that the attorney's performance was reasonable.
To demonstrate that counsel was ineffective, a defendant must show that counsel's performance fell below "the wide range of professionally competent assistance" and also that the deficient conduct prejudiced defendant.
A court need not consider both prongs of Strickland, if there is an insufficient showing on one or the other.
Although Defendant proffers multiple grounds for relief, much of his argument focuses on phone records proffered by the Government. Defendant asserts that counsel should not have stipulated to the admissibility of cumulative records from Sprint, T-Mobile, and Cricket, the latter two relating to Defendant's phones, and the remaining records relating to co-Defendant Hinojosa.
I note, from the outset, that it would be difficult to find that counsel's conduct fell below an objective standard of reasonableness, on any ground proffered by Defendant. "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."
However, even assuming
Additionally, the Government has demonstrated that other records were purged or nonexistent at the time that Defendant attempted to obtain them. The fact that Defendant was unable to obtain the records, therefore, does not buttress his allegation that the records were manufactured, or that counsel should have investigated the records further. Thus, even if I were to take judicial notice of the records that Defendant now submits, those records are not dispositive of his contentions. Moreover, Defendant does not demonstrate that the Government's proffered records would have been inadmissible at trial had counsel not stipulated to their admission. In other words, "[n]either Defendant nor the record before this Court shows that, absent counsel's stipulations, the complained-of evidence would not have been admitted into evidence, and Defendant fails to establish that, but for counsel's deficient performance, there is a reasonable probability that he would not have been found guilty."
Finally, Defendant suggests that counsel was ineffective for failing to object to or investigate various instances of alleged prosecutorial misconduct, such as fabricating evidence or knowingly presenting false evidence, and for failing to object to or investigate such evidence. This contention encompasses his direct challenge to the allegedly fabricated evidence. The allegedly fabricated evidence includes Drug Enforcement Administration ("DEA") laboratory reports, CD and DVD evidence, along with the telephone records. Defendant suggests that because counsel did not take various actions to expose the misconduct — such as further investigation or obtaining testimony from DEA lab personnel — he was constitutionally deficient. To prevail on a section 2255 motion based upon prosecutorial misconduct, the defendant must demonstrate that the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process."
The Government's Brief counters each one of Defendant's unsupported contentions, and Defendant has not proffered any support for his assertion that the Government knowingly procured, created, or used false or fabricated evidence, or otherwise violated rules of professional conduct. For example, the Government has submitted a certification from the forensic chemist involved in the case, indicating that he accidentally misdated the report, but later corrected the date; it also clarifies that Defendant's contentions regarding the amount of drugs involved refer to only one exhibit totaling 4.9 kilograms, and not the net weight of both exhibits involved in this case. The Government further explains the use of "sham" cocaine during the controlled delivery at issue, as well as the chemist's analytical process, which alter the appearance of the cocaine seized. Defendant's conclusory assertions of misconduct are insufficient in this context. There is simply no suggestion in the record that the Government knowingly fabricated, produced, or proffered false evidence, or that counsel's performance was deficient in dealing with such evidence.
Defendant's Motion for an order directing the clerk to provide him with certain documents must be denied. A review of the docket reveals that the documents requested, such as attorney files and work product, or his co-Defendant's debriefings while in Indiana, are not of record in this matter; thus, the clerk has no access to those documents. I will, therefore, consider Defendant's Motion as one for discovery from the Government and various non-parties pursuant to Rule 6 of Rules Governing Section 2255 Proceedings. Pursuant to that Rule, a judge may, for "good cause," permit discovery in a Section 2255 matter. Further, the Rule requires that "[a] party requesting discovery must provide reasons for the request." Defendant has not demonstrated "good cause" for his requests. In addition, the Government has indicated that it is not in possession of several of the documents, and this Court does not have the jurisdiction to order the production of documents that might or might not be in the hands of non-parties to this action. In sum, the Motion will be denied.
Defendant contends, essentially, that the lack of certified records of the Richmond Indian police department and the Wayne County Sheriff's Department, if assessed at a hearing, would demonstrate that the date of arrest was falsified. However, even assuming that arrest dates were inaccurately reflected on any document, Defendant fails to demonstrate that accurate dates would have impacted the outcome of the proceedings. Further, Defendant contends that exculpatory, "new" evidence exists, and has been withheld from the Government. His conclusory assertions, however, do not explain how the allegedly withheld or exculpatory evidence would have changed the outcome of his proceeding. As discussed
Under 28 U.S.C.§ 2253(c)(2), a "certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right." For the reasons stated above, Defendant has not made such a showing. Therefore, a certificate of appealability will not issue.
Defendant's frustration is apparent, but I assure him that I have carefully scrutinized the record for suggestions of prosecutorial misconduct or impropriety, and other fundamental flaws in his representation or in the fairness of this proceeding generally. According to the standards that I am bound by law to apply, I have found none. Therefore, his Motion must be denied. No certificate of appealability shall issue. An appropriate Order follows.
AND NOW, this 5th day of May, 2016, it is hereby ORDERED, ADJUDGED, and DECREED that Defendant's Motion to Vacate [229] is DENIED. No certificate of appealability shall issue. Further, Defendant's Motion for Evidentiary Hearing and Motion to Issue Subpoenas, as well as his Motion for an Order Directing Clerk of Court [262, 263, 277] are DENIED.