The opinion of the court was delivered by: Bernard Zimmerman, Magistrate Judge
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. §
On August 8, 2001, following a bench trial, I acquitted petitioner Kathryn Fox of violating 36 C.F.R. § 1004.23 (a)(1) (driving under the influence of alcohol), and convicted her of violating 36 C.F.R. § 1004.23 (c)(2) (refusing to submit to a chemical test) and 36 C.F.R. § 1004. 21(c) (speeding). In part, I sentenced Fox to five years of probation and seventy-five hours of community service. On August 7, 2002, Fox filed a motion pursuant to 28 U.S.C. § 2255 to set aside her sentence on the ground that she was denied effective assistance of retained [ Page 2]
counsel in violation of the Sixth Amendment.*fn1
To demonstrate ineffective assistance of counsel, Fox must show that her retained trial counsel's representation was deficient and that the errors were so serious as to deprive her of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In determining whether counsel's performance was deficient, the relevant inquiry is not what counsel could have done, but whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); see also Strickland, 466 U.S. at 689 (judicial scrutiny of counsel's performance must be highly deferential and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance). In determining whether a defendant was denied a fair trial, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Fox's first complaint is that trial counsel failed to challenge 36 C.F.R. § 1004.23 (c)(2) as unconstitutional, on the grounds that it violated her Fifth Amendment rights against self-incrimination. Because the constitutional issue has been addressed and rejected by the Ninth Circuit [ Page 3]
in a similar context, the decision not to raise it does not demonstrate ineffective assistance of counsel. See Deering v. Brown, 839 F.2d 539 (9th Cir. 1988) (defendant's refusal to submit to a chemical test was neither testimonial nor compelled and therefore not in violation of the Fifth Amendment, even though Alaska law imposed criminal penalties for the separate offense of refusal to submit to a chemical test) (relying on South Dakota v. Neville, 459 U.S. 553 (1983)); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take a futile action can not be ineffective assistance of counsel); Goins v. Angelone, 52 F. Supp.2d 638, 664 (E.D. Va 1999) ("Counsel do not render constitutionally ineffective assistance where, as here, they refrain from challenging as unconstitutional a statute the constitutionality of which has been explicitly and repeatedly upheld."); United States v. Williams, 2001 WL 733417, *17 (N.D. Tex. 2001) (same). In her supplemental brief, Fox conceded that Deering is dispositive of her Fifth Amendment complaint.
Fox's second complaint is that counsel did not adequately investigate and present evidence with respect to the refusal charge. This complaint fails for several reasons. First, Fox failed to show what an adequate investigation would have disclosed or what evidence should have been presented, let alone how the result would have been different if either had occurred. See United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994) (noting that petitioner on a 28 U.S.C. § 2255 petition has the [ Page 4]
burden of showing that, but for counsel's errors, the result would have been different); see also United States v. James, 915 F. Supp. 1092, 1097 (S.D. Cal. 1996) (finding that petitioner on a 28 U.S.C. § 2255 petition failed to meet his "heavy burden" of showing ineffective assistance of counsel).
Second, Fox has made no showing that the decision not to contest the refusal charge was anything but trial strategy.*fn2 A court should not second-guess an attorney's strategic decisions. See Strickland, 466 U.S. at 689 (". . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'") (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Here, trial counsel in his opening statement said:
I would like to start out by saying that my client
and I have reviewed the government's evidence that
was produced on Monday. And my client does not
wish to challenge the government's evidence
concerning . . . the count of refusing to take a
breathalyzer test. . . . What my client is going
to put on evidence through me is that the
government has not met its burden proving that my
client was operating a vehicle in a dangerous
manner and was driving while intoxicated. . . .
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Tr. 207:9-14; 22-25. This strategy worked. Fox was acquitted of the drunk driving charge.
Finally, based on my observations of trial counsel's representation of Fox during the bench trial, I cannot say that he acted below the standard of objective reasonableness in defending Fox against the refusal charge.
While he did not present any evidence on this charge, he examined the prosecution's witnesses and argued about the evidence supporting the refusal charge. In reviewing some of the relevant testimony, I noticed that in explaining the need for a chemical test, the arresting officer warned Fox that under California law, refusal to submit to a chemical test would result in a fine and imprisonment if the arrest resulted in a conviction of driving under the influence. Transcript of Trial, ("Tr."), Vol. 1, at 37:6-7, 87:10-11. The warning did not include an admonition that under federal law, Fox could be subject to a separate criminal prosecution based on that refusal even if she was acquitted of the drunk driving charge.*fn3 Instead, Fox was warned that she would receive a citation for her refusal to submit to the test. Tr. at 38:15-17. After I ordered further briefing on this issue, Fox contended that she was denied effective assistance of counsel when her trial counsel failed to argue that her decision not to submit to a chemical test was based on a misunderstanding of federal [ Page 6]
law as explained to her by the police officer. Without deciding whether counsel's failure to challenge the propriety of the admonitions constituted inadequate assistance, I find that Fox has failed to satisfy the second Strickland prong since she has made no factual showing that she somehow was misled by the inconsistent warnings, or that but for counsel's claimed failure, the result at trial would have been different.
For the foregoing reasons, it is HEREBY ORDERED that Fox's motion pursuant to 28 U.S.C. ...