The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
On April 26, 2002, following a jury trial, Conrad Albert Krouse III ("petitioner") was convicted of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d); possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); possession with intent to distribute marijuana in violation of 21 U.S.C. 841(a)(1); and, possession with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1). On August 26, 2002, petitioner was sentenced to a term of 161 months imprisonment and three years of supervised release. On August 28, 2002, petitioner filed a Notice of Appeal.
On June 4, 2004, Court of Appeals for the Ninth Circuit affirmed petitioner's convictions. On August 3, 2005, however, the Ninth Circuit granted a limited remand of petitioner's sentence for further proceedings consistent with United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc). On April 7, 2006, the Court resentenced petitioner to a term of 144 months imprisonment. On April 18, 2006, the Court's judgment and commitment order was entered on the criminal docket.
On April 26, 2007, petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("2255 Motion"). The Court set a briefing schedule on May 7, 2007. On August 31, 2007, the government filed a motion to dismiss for failure to comply with § 2255's one-year statute of limitations. On September 27, 2007, petitioner filed opposition. The government filed no reply. On October 18, 2007, the Court denied the government's motion and issued a revised briefing schedule. On January 9, 2008, the government filed opposition to petitioner's 2255 Motion. On February 28, 2008, petitioner filed a reply.
II. SUMMARY OF PARTIES' CONTENTIONS
The Court must set aside the judgment against petitioner because trial counsel's ineffective assistance violated petitioner's rights under the Sixth Amendment in four respects.*fn1
1. Failure to Adequately Prosecute Franks Motion
Petitioner's criminal prosecution was based on narcotics and firearms discovered in the process of executing a search warrant on July 25, 2001, for stolen arcade games, vending machines, and other property (collectively "the games") belonging to Larry Herrick. The games were allegedly installed inside The Happy Dutchman, a bar owned by petitioner, pursuant to an agreement between Herrick and petitioner to split the games' profits. When the games went missing, Herrick accused petitioner of stealing them. The Buena Park Police Department ("BPPD") subsequently initiated an investigation.
Though prior to trial, on April 1, 2002, counsel brought a motion to suppress the evidence obtained during the July 25, 2001 search, he failed to argue that Detective Tamra Alishouse ("Det. Alishouse" or "affiant"), who investigated the incident, intentionally omitted information and made false statements in the affidavit used to obtain the warrant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978). These omissions and false representations are evident from comparing Det. Alishouse's affidavit with the police report she prepared regarding the investigation. Affiant stated that she "interviewed current employees and ex-employees from the bar whom . . . all confirmed that the machines and games in the bar belonged to [Larry]
Herrick." (See Motion, Ex. 8 (emphasis added)). However, the police report reflects that there were at least two employees, Kelly Bridges and Jackie Morse, who stated that Herrick never placed any games in petitioner's bar and that those games which were at the bar belonged to a different individual, Jack Thomas.
(Id., Ex. 10, at 2). Affiant's police report also states that she spoke by telephone with an individual purporting to be Thomas who confirmed the games belonged to him (affiant was unable to confirm the individual's identity). (Id.).
Counsel's failure to raise this inconsistency as a grounds for challenging the validity of the search warrant was acknowledged in the unpublished portion of Court of Appeals' opinion - the court did not consider the issue because it was not raised below. (Id., Ex. 13). Had the issue been properly raised, the motion would have been found meritorious. Here, where affiant's representations sought to establish evidence of theft, the misstatements and omissions were material to the probable cause determination. United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002). The fact that the police report contained evidence plainly contrary to statements made in the affidavit, coupled with the fact that affiant prepared both, establishes deliberate falsehood or reckless disregard for the truth. Petitioner was prejudiced by counsel's failure to move to suppress the evidence on this basis because excising the false statements and including the omissions would, at most, give rise to "mere suspicion," not probable cause. See United States v. Wanless, 882 F.2d 1459, 1465-66 (9th Cir. 1989); United States v. Vasey, 834 F.2d 782, 788-90.
2. Failure to Conduct Effective Pretrial Investigation
Counsel was ineffective in failing to fully investigate and present evidence that the BPPD's motivation for obtaining a warrant - even after preliminary determinations by a deputy district attorney that Herrick's complaint was merely a civil dispute - related to an ongoing effort to search for drugs at petitioner's home and business. The BPPD had, among other things, previously inquired on multiple occasions whether petitioner possessed or dealt drugs and visited petitioner's bar to interrogate both petitioner and customers, including a customer by the name of Michael Giovannoni. (See Motion, Exs. 17, 18). Petitioner was prejudiced by counsel's failure to investigate because these incidents serve as circumstantial evidence that the misstatements in Det. Alishouse's affidavit were intentional, since they demonstrate an ulterior motive for obtaining the warrant, rather than the stated motive of searching for stolen items.
3. Improperly Advising Petitioner Regarding Admissibility of Prior Conviction
Counsel was ineffective in advising his client that his prior arrest and conviction on a narcotics trafficking charge would not "under any circumstances" be admissible at trial and then proceeding to open the door to government cross-examination on the very issue by asking petitioner, "Mr. Krouse, are you a drug dealer?" (See Motion, Ex. 20). Counsel also failed to lodge objections to government's questions regarding petitioner's prior conviction. The resulting testimony was highly prejudicial because it undercut petitioner's credibility, and concomitantly, his defense that the narcotics found during the search belonged to others living in his home. These errors ...