The opinion of the court was delivered by: CHARLES BREYER, District Judge
Defendant Joan McKenna was convicted in federal court of two
counts of perjury in violation of 18 U.S.C. section 1621 and one
count of making a false declaration under oath in violation of
18 U.S.C. section 1623(a). The Ninth Circuit affirmed her conviction
in a published opinion. United States v. McKenna, 327 F.3d 830
(9th Cir. 2003). Now pending before the Court is McKenna's motion
for habeas corpus relief pursuant to 28 U.S.C. section 2255. As
the relevant background facts are exhaustively set forth in the
Ninth Circuit's opinion, the Court will not repeat them here.
After carefully reviewing McKenna's voluminous submission,
including the attached exhibits, as well as the file and records
of the case, the Court concludes that these documents
"conclusively show" that McKenna is not entitled to relief. See
28 U.S.C. § 2255. DISCUSSION
I. Ineffective Assistance of Counsel Generally
McKenna first alleges that her trial and appellate counsel
engaged in a litany of acts and omissions that constitute
ineffective assistance of counsel. To prevail, McKenna must show
that her counsels' representation fell below an objective
standard of reasonableness and that it resulted in prejudice.
See Strickland v. Washington, 466 U.S. 668, 687-80 (1984).
None of McKenna's claims meets this standard.
A. Failure to require government to meet its burden
McKenna appears to contend that her trial counsels' lack of
experience with perjury cases caused them to fail to require the
government to prove all of the elements of perjury. This claim is
flatly refuted by the Ninth Circuit's opinion. The court
concluded that the verdict was supported by substantial evidence.
327 F.3d at 838-42. The Ninth Circuit's holding, and her
conviction, also doom her claim that her counsel should have
challenged her prosecution as frivolous. Her complaint about
counsels' failure to object to the verdict form fails for a
similar reason: the Ninth Circuit held that the verdict form was
proper. Id. at 843.
B. Failure to admit certain evidence
McKenna places particular emphasis on her counsels' failure to
admit any evidence from her civil trial pursuant to a stipulation
with the government. She contends: "The harm done to McKenna's
case by this single act was enormous: it barred McKenna's defense
from bringing forth documents, testimony, and expert witnesses
from the civil case that would have exonerated her." Petition at
19 (emphasis in original).
As a preliminary matter, the Court notes that it can find no
record of such a stipulation. McKenna's habeas petition claims
the stipulation is located behind exhibit A to her petition, but
exhibit A is empty in both the chamber's copy and the file copy
of the amended petition. The Court's own review of the file
failed to produce any such stipulation. Moreover, the parties'
stipulations were read to the jury, and the stipulation to which
McKenna refers was not included. Trial Transcript at 244-45. In any event, assuming there was such a stipulation, McKenna
fails to show that her counsels' decision to enter into the
agreement was unreasonable or prejudiced her defense. Many of the
documents she claims her attorneys should have admitted, such as
medical records, are relevant, if at all, to the first count of
the indictment, that is, the claim she perjured herself at her
first deposition by failing to disclose her November 1994
accident. See, e.g., Appendix at 58 n. 8. McKenna, however, was
not convicted of that charge; instead, she was convicted of lying
about the court reporter's equipment malfunction and disclosing
the accident to Dr. Prieto. Moreover, none of the evidence from
the civil trial that she claims impeaches several government
witnesses in fact does so to the extent that her counsels'
alleged failure to have so impeached the witnesses was below an
objective standard of reasonableness.
Furthermore, McKenna herself explains that her attorneys had a
reason for entering into the stipulation; namely, they were
concerned that if the civil trial documents were entered into the
evidence the government would raise questions about exhibits she
submitted in support of her civil case, including tax-related
documents. Motion at 68 n. 26
McKenna also fails to show that her counsels' performance was
substandard based on their failure to impeach witnesses with
other evidence. For example, she contends that her counsel should
have impeached Dr. Prieto with evidence that he lied under oath
during tax proceedings. Petition at 64 n. 16 and exhibit HC-18.
The opinion in which she claims Dr. Prieto was found to have lied
under oath, however, was not issued until after McKenna was
convicted; thus, her counsel could not have used it for
impeachment purposes. Prieto v. Commissioner of Internal
Revenue, T.C. Memo 2001-266 (October 4, 2001). More importantly,
McKenna mischaracterizes the opinion: nothing in the opinion can
reasonably be read as a finding that Dr. Prieto lied under oath;
to the contrary, the court found that Dr. Prieto had in good
faith relied on a tax professional's advice.
C. Failure to call witnesses
McKenna also complains about her counsels' failure to call any
witnesses to establish that her chiropractor's signature on a
December 4, 1994 letter describing McKenna's injuries from the November 1994 accident was actually a "stamped"
signature. She fails to explain, however, how a "stamped"
signature versus a "live" signature makes any difference to her
case. She also fails to explain how it makes any difference
whether the chiropractor's letter was intended for McKenna's
civil attorney or some other person. Finally, while she claims
AUSA Kingston testified that the initials at the bottom of the
page meant the letter was intended for McKenna's counsel, McKenna
offers no evidence to support her assertion as to what Kingston
testified. The Court has reviewed the ...