The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Movant Brown ("Brown") has moved pursuant to 28 U.S.C. § 2255 to have his conviction vacated on several grounds, one of which alleges ineffective assistance of trial counsel. Within that claim, Brown charges his trial counsel with urging Brown to commit perjury and testify to a false scenario in lieu of the true actual innocence. None of the claims warrant an evidentiary hearing, and none have merit. Brown also filed supplemental requests to add claims which, with one exception, are either time barred or are not meritorious. However, the government conceded ineffective assistance of counsel on the Ameline remand issue. The undersigned recommends that the § 2255 motion be denied, with the exception of one ineffective assistance claim filed in a supplemental pleading to which the government conceded.
Brown was indicted on charges (March 6, 2003), arrested and detained on May 3, 2003, and convicted of armed bank robbery (18 U.S. C. § 2113(a), (d)), as well as use of a firearm (18 U.S.C. § 924(c)(1)) (December 17, 2003). Judgment was entered on March 11, 2004 -- 150 months on the robbery count, and a consecutive 84 months on the firearm count. An appeal was taken on sufficiency of the evidence grounds, a jurisdictional FDIC issue, and a sentencing issue. The conviction was affirmed in an unpublished opinion, but remanded on the sentencing issue pursuant to United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc). United States v. Brown, 172 Fed. Appx. 206, 2006 WL 751315 (9th Cir. 2006). Exercising his option to stand on the original sentence, Brown ultimately determined not to challenge further the original sentence, and stipulated to a vacating of the Ameline remand. Docket # 93. He then filed the present § 2255 motion on September 28, 2007 (signed September 15, 2007).
The original motion asserted in Claim 1 that the trial court erred in refusing to order substitute counsel at Brown's request shortly before the trial was to begin; that defense counsel was ineffective for failure to investigate a number of things, and most notably, because defense counsel "compelled" Brown to give up his "true" alibi defense and testify to a fanciful "a drug dealer committed the robbery" scenario, and that appellate counsel was ineffective as well in not raising the substitution of counsel issue. In two supplemental pleadings filed after the United States opposed petitioner's original motion, Brown alleged that his trial was commenced after the 180 days specified in the Interstate Agreements of Detainers Act, his Ameline counsel was ineffective on re-sentencing, and appellate counsel was ineffective for all the reasons set forth against trial counsel in the initial motion.
Standards for Evidentiary Hearing
The standard rule requirement for holding an evidentiary hearing is well established: when a movant posits facts which would demonstrate a violation of federal law or the Constitution, a hearing must be held "'[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998). Of course, this does not mean that an evidentiary hearing must be held on any baseless assertion by a convicted defendant. Mere conclusory statements asserted without evidentiary support do not warrant a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). The district court is entitled to supplement the record and then make its decision without an evidentiary hearing, Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989), and may even utilize common sense in determining whether to hold the hearing. Id. Finally, claims made which are "palpably incredible or patently frivolous" when viewed in light of the entire record are not entitled to an evidentiary hearing. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984). See McElyea v. Schiro, 2009 WL 222375 (D. Ariz. 2009) (finding that petitioner's contrived allegation that he was coerced into perjury by his attorney did not warrant an evidentiary hearing; see also United States v. Wilson, 337 Fed. Appx. 747, 2009 WL 1863680 (10th Cir. 2009) (finding frivolous allegations of coerced perjury).
Because several of the issues raised deal only with procedural matters, the undersigned will give the facts related to those matters in the first section below. The facts regarding the evidence submitted at trial will be given in Section B.
A. Refusal to Substitute Counsel (A Second Time) and Ineffective Assistance of Appellate Counsel
Petitioner had previously maintained that he could not continue with his first appointed counsel (AFD Jeff Staniels), and the court then substituted in Attorney Fred Dawson. Petitioner alleges that communication broke down between this second counsel and himself because of either a personality conflict or racial animosity.
After one continuance necessitated by the first change of counsel, trial had been set for December 10, 2003, when on November 20, 2003, Brown asked that his second counsel (Dawson) be removed and a third counsel be appointed for him. Brown's counsel initially told the trial judge (the Honorable Morrison England) that there had been an irreconcilable breakdown in his relationship with Brown, and that it was a matter of communication -- "[t]ends to be a bit one way in this case." RT (Nov. 20) 5.*fn1 Brown agreed and stated that although he had no disrespect for Mr. Dawson, the attorney would not listen to him. RT 6. The trial judge explored these initial comments further. Brown related that he was upset because he thought he was being "rushed" to trial. When discussing the matter in camera, Brown desired to attack the prosecutor's tactics, RT (Nov. 20) 9-10, and thought the prosecutor's evidence to be deficient. RT (Nov. 20) at 10, 12-14. He also thought that he was being rushed to trial and not given enough time to do his own research and investigation. RT (Nov. 20) 16. In general terms, Brown thought Dawson not to be helping him enough to contest the deficient case.
After further discussion about the procedures in federal court, and the fact that much of Brown's evidentiary problems had to be ultimately decided by the jury, and the fact that there was no guarantee whatsoever that any other attorney would not also have a difficult time with Brown, Brown stated: "I'm going to stick with him. I'm going to take your advice. He's a good lawyer." RT (Nov. 20) 19. Judge England found at this point that there was not an irreconcilable conflict and the motion to substitute counsel was denied. RT (Nov. 20) 19-20.
On the eve of trial, December 9, 2003, Brown made a second request to have Dawson removed. Again it is apparent from the transcript that Brown was anxious about his trial when again asking for substitute counsel.
I came before you last month, and I pleaded my case. Now you said that there wasn't--your feelings was that you didn't feel that there was a break down in communication between us because you seen that I had respect for this man. Now, I'm a Christian. I have to have respect for everyone. I try to. I'm trying to change my life. Now, that doesn't mean that there's not a break down. All we do is argue and yell.
Now the other day, something he said to me kind of hurt me. I don't want to go no farther with this man. I still don't have no disrespect towards him, but this is my life. I'm looking at my-- the rest of my life. This is serious.
He didn't want to talk. I told him please help me with this case. He told me, quote, unquote, get Don Masuda (phonetic) to help you. That's another lawyer that I was talking to pertaining to the first camera motion. He gave me some good input.
And he just threw it in my face, like, you know what I mean? I mean, you're my lawyer. The judge tells us to try to work through this. But still in all, there's a problem.
Now, I mean I'm locked up. This man goes home every day. I know everybody is looking at me like the bad guy, but I am not the bad guy. I am fighting for my life.......
Brown again thought he was being rushed to trial. RT (Dec. 9) 6. Attorney Dawson agreed (again) that communicating with Brown was difficult, but that "[w]hether I would consider it a complete breakdown or not is another issue. Mr. Brown has some significant philosophical and intellectual problems with the concept of circumstantial evidence and just what it means and how it works...." RT (Dec. 9) 7. Judge England saw this as more of the same difficulties that he had witnessed before at the November 20 hearing, did not believe there was an inability to work together at trial, noted that it was the day before trial, and denied the motion. RT (Dec. 9) 8.
The United States is correct that since the trial error claim was not raised on direct appeal, it was defaulted. See United States v. Ratigan, 351 F.3d 957, 960 (9th Cir. 2003) citing Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604 (1998). However, Brown clearly raises the issue of substitution in Claim 3 -- ineffective assistance of appellate counsel. Since the merits of the denied substitution have to be reviewed in any event for claim 3 for both Strickland prongs, and the same merits would be at issue for Claim 1, and a win on one is all that is required for Brown, the undersigned will simply adjudicate the merits for both claims.
The district court has discretion in reviewing motions to substitute counsel. Three factors are analyzed:
(1) the timeliness of the motion;
(2) adequacy of the judge's inquiry;
(3) whether the problem is so great as to result in a complete breakdown in communication and a consequent inability to prepare a defense.
United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2005). Other factors come into play in particular cases. A significant factor is whether substitutions have been granted in the past, and it appears that further substitutions will simply result in more of the same type communication breakdowns. United States v. Mendez-Sanchez, 563 F.3d 935, 943 (9th Cir. 2009). Also, disagreement over litigation tactics is an insufficient reason per se to substitute counsel. United States v. Reyes-Bosque, __F.3d__, 2010 WL 681839 *13 (9th Cir. 2010).
Clearly, Brown's requests came on the eve of trial, after one trial continuance had been given to substitute counsel (Staniels to Dawson). The last request came on the very day before trial. This factor weighs in favor of denial. The district judge wisely gave Brown "the floor" to set forth his disagreements with counsel. Brown's reasons were insightful in that he was primarily angry with the prosecutor, anxious about going to trial in an admittedly serious case, and was very strong in his beliefs about how the case should be tried. His litigation disagreements with counsel were the primary reasons for the "yelling" sessions. Finally, the trial judge clearly determined that a substitution of counsel at that late date would simply lead (again) to more of the same type communication problems. The ...