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August 9, 2005.

JOAN McKENNA, Defendant.

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 ...

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