FINDINGS AND RECOMMENDATIONS
Movant, Ross, is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 He seeks post-conviction relief on the grounds that: (1) his trial counsel rendered ineffective assistance; (2) his conviction was obtained by the use of a coerced confession; (3) his conviction was based on statements obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (4) prosecutorial misconduct violated his right to a fair trial; and (5) his sentence was based on improper application of the Federal Sentencing Guidelines. The court has carefully considered the record and the applicable law, and for the reasons set forth below finds that the section 2255 motion must be denied.
On February 5, 1999, the grand jury returned a six count indictment charging movant with one count of conspiring to manufacture methamphetamine. Dckt. No. 17. Movant was represented by attorney Robert Holley until September 29, 1999, at which time attorney Malik Ali Muhammad substituted in place of Mr. Holley as movant's retained counsel. Dckt. Nos. 79, 81. On January 14, 2000, after movant's three co-defendants pled guilty, a three-count superseding indictment was filed charging movant with conspiring to manufacture methamphetamine (Count One); conspiring to distribute pseudoephedrine with knowledge or reasonable cause to believe that it would be used to manufacture a controlled substance (Count Two); and distributing pseudoephedrine with knowledge or reasonable cause to believe that it would be used to manufacture a controlled substance (Count Three). Dckt. No. 103.
Trial commenced on February 8, 2000, Dckt. No. 115, and on February 14, 2000, the jury found movant guilty on all counts. Dckt. No. 130. When attorney Muhammad failed to appear for movant's June 14, 2000 sentencing proceedings, the court appointed attorney Donald S. Frick to represent movant. Dckt. No. 145. Movant subsequently learned that attorney Muhammad had been suspended from practice by the California state bar shortly before the start of his trial. Dckt. No. 147.*fn2
Movant filed a motion for new trial, arguing that he received ineffective assistance of counsel because his trial attorney was not entitled to practice law during the trial, Dckt. No. 147, and that motion was denied. Dckt. No. 153. He then filed a motion for reconsideration, which was also denied. Dckt. No. 167. On April 11, 2001, movant was sentenced to a term of 240 months in prison and 36 months of supervised release. Dckt. No. 172. On April 26, 2001, the trial court amended movant's sentence to a term of 240 months in prison and 60 months of supervised release. Dckt. No. 176.
On April 26, 2001, movant filed a timely notice of appeal. Dckt. No. 175. In a published opinion, the Court of Appeals for the Ninth Circuit affirmed the judgment of conviction in its entirety. United States v. Ross, 338 F.3d 1054, 1055 -1056 (9th Cir. 2003) (per curium). The instant motion, seeking relief pursuant to 28 U.S.C. § 2255, was filed on January 22, 2005.
Alza Corporation (hereinafter "Alza") is a company that manufactured antihistamine pills and in doing so used large quantities of pseudoephedrine. Movant, Ross, worked for Alza as its senior hazardous material technician. This gave him access to pseudoephedrine that had been designated as waste, which was to be stored until transported to a special disposal place. Reporter's Transcript ("R.T.") 26-27. Alza discovered that a drum of such pseudoephedrine had been stolen. It investigated and learned that movant was stealing it and selling it to persons who used it to illegally manufactured methamphetamine. This lead to movant's prosecution and ultimate conviction in the instant case.
The following factual summary is drawn from respondent's opposition to the § 2255 motion, at 3-10, and is reproduced here solely to provide a factual background with respect to movant's claims. Where movant challenges these facts in connection with any particular claim, that challenge is noted in the body of these findings and recommendation.
Once designated as waste, this pseudoephedrine would go into Alza's waste handling system. R.T. 27.
In 1998, the [movant] was a senior hazardous material technician for Alza. R.T. 25. In that position, he had total access to Alza's hazardous waste area where the pseudoephedrine designated as waste would be stored until it was transported to a special disposal place. R.T. 25-27. In 1998, Alza did not keep track of pseudoephedrine waste once it reached the hazardous waste area. R.T. 28-29. Once the pseudoephedrine waste was taken to the hazardous waste area, Alza simply depended on employees like the [movant] to ensure that it was taken to a proper disposal site. R.T. 28.
In June, 1998, Alza discovered that a drum of pseudoephedrine tablets had been stolen and began an investigation into this theft. R.T. 2-3, 23. On July 16, 1998, Alza's manager of corporate security, Mervin Marty, interviewed the [movant].
R.T. 3. During this interview, the [movant] denied any involvement in the pseudoephedrine theft. R.T. 4. He acknowledged to Mr. Marty, however, that pseudoephedrine was the key ingredient for making methamphetamine. R.T. 4-5. The [movant] further stated that he knew that there were a lot of methamphetamine laboratories in the area. R.T. 5.
When Alza became aware that pseudeoephedrine was being stolen from its premises, it hired a private investigation firm, Confidential Management Services ("C.M.S."), to assist in an investigation. R.T. 23-24. As part of this investigation, Michael Lawlor, a C.M.S. investigator, posed in an undercover capacity as an employee of Alza between approximately, early July, 1998, and February, 1999. R.T. 354-355.
On November 10, 1998, Mr. Lawlor met with the [movant]. R.T. 355-356. Gabe Raya, an Alza employee who was working as a confidential informant for management, introduced Mr. Lawlor to the [movant] and participated in their meeting. R.T. 356-357. At this meeting, Mr. Raya indicated that if they supplied the [movant] pseudoephedrine, they could make some extra money. R.T. 358-360. Mr. Raya elaborated as to how they mark, then deliver barrels of pseudoephedrine to the [movant]. R.T. 360.
At this point in their conversation, the [movant] stated that if Lawlor and Raya could get him barrels of pseudoephedrine, the three men would split between $5,000 to $7,000 per barrel. R.T. 360-361. The [movant] then said that he wanted the 55-gallon barrels of pseudoephedrine marked with the numbers "123" on their labels. R.T. 361. The [movant] then stated that Raya would ensure that the barrels of pseudoephedrine would be moved to the appropriate location. R.T. 361. The [movant] then went back to work. R.T. 362.
In December, 1998, some barrels of pseudoephedrine were stolen fro Alza.*fn3 Alza did not know who had stolen them. R.T. 114. Peyton Schur, the chairman of C.M.S., posed in an undercover capacity as one of the thieves of this pseudoephedrine and had a telephone conversation with the [movant]. R.T. 107-108, 114, 130-132, 136-137. During this conversation, the [movant] stated that he and another person had been involved with stealing pseudoephedrine from Alza in the past. R.T. 113, 137-139.
On December 15, 1998, representatives of C.M.S. questioned the [movant]. R.T. 34-35, 116. During this interview, the [movant] denied ever stealing any pseudoephedrine from Alza. R.T. 36, 116. He did admit that he had told other Alza employees that he was involved in stealing pseudoephedrine in an unsuccessful effort to ascertain the identities of the real thieves. R.T. 36-37.
On December 18, 1998, representatives of C.M.S. again interviewed the [movant]. R.T. 48-50, 116-120. A portion of this interview was tape recorded.
R.T. 51-54; Govt. Exh. 3-B, 3-D.*fn4 The [movant] also completed a written statement. R.T. 51-52, 55; Govt. Exh. 3-C.
In this interview, the [movant] stated that he had not been truthful before and admitted that he had in fact stolen pseudoephedrine from Alza on two occasions. Govt. Exhs. 3-B, 3-C, 3-D; R.T. 553. The first occasion occurred in approximately September or October he [sic] stole some 30 gallon drums of pseudoephedrine which he and another individual delivered to Derrick Williams. Govt. Exhs. 3-B, 3-C, 3-D. The [movant] stated that Williams gave him $5,000 for his efforts. Govt. Exhs. 3-B, 3-C, 3-D. The second theft occurred around November when the [movant] delivered a small amount of pseudoephedrine to Williams, who paid him $750. Govt. Exhs. 3-B, 3-C, 3-D. The [movant] said that he stole this pseudoephedrine from Alza because Williams had threatened to harm him and his son if he did not cooperate with Williams. Govt. Exhs. 3-B, 3-C, 3-D.
On December 21, 1998, the [movant] again met with a representative of C.M.S. and again admitted that he had stolen pseudoephedrine from Alza. R.T. 55-57, 553-554; Govt. Exhs. 4-1, 4-B.
On December 22, 1998, Detective Nathan Benevides of the Vacaville Police Department conducted a videotaped interview of the [movant] regarding the Alza pseudoephedrine thefts. R.T. 82-88; Govt. Exhs. 5-B, 5-C. During this non-custodial interview, the [movant] initially admitted that he had helped steal pseudoephedrine from Alza on two occasions. R.T. 82-83, 554-555; Govt. Exhs. 5-B, 5-C. Later in the interview, the [movant] admitted that he had stolen pseudoephedrine on three separate occasions. R.T. 554-555; Govt. Exhs. 5-B, 5-C.
The [movant] told Detective Benevides that in approximately July, he had stolen four smaller barrels of pseudoephedrine from Alza and delivered them to Derrick Williams. R.T. 554; Govt. Exhs. 5-B, 5-C. In approximately September or October, he stold two large and one small drum of pseudoephedrine and delivered them to Williams. R.T. 554-555; Govt. Exhs. 5-B, 5-C. Finally, around November, he delivered to Williams yet another drum of Alza's pseudoephedrine. R.T. 554-555; Govt. Exhs. 5-B, 5-C.
When Detective Benevides asked the [movant] if he knew what the pseudoephedrine was being used for, the [movant] answered that Williams had told him that the Hell's Angels stripped it to make drugs with it. Govt. Exhs. 5-B, 5-C.
Derrick Williams, testifying pursuant to a cooperation agreement with the government, described how he and the [movant] conspired to steal large quantities of pseudoephedrine from Alza which would then be provided to methamphetamine manufacturers. R.T. 156-185. He testified that the [movant] delivered pseudoephedrine tablets to him on three separate occasions for a total of six barrels of pseudoephedrine. R.T. 181-182.
Williams worked for Alza from March, 1992 to February, 1998, so he knew the [movant], and also knew that Alza produced pseudoephedrine products. R.T. 157-158, 171. Williams was a user of methamphetamine and had been told that pseudoephedrine was used to make methamphetamine. R.T. 166. In May, 1998, Williams approached the [movant] and asked him if he could get some pseudoephedrine. R.T. 158. The [movant] said that he would think about it. R.T. 158.
About one month later, Williams recontacted the [movant]. R.T. 158. At that time, the [movant] said that he had a few drums of pseudoephedrine that he could get for Williams. R.T. 158.
About two or three weeks later, the [movant] delivered three 30-gallon barrels of pseudoephedrine tablets to Williams at a division of Alza called Alzette. R.T. 159-160. Williams later delivered most of these pseudoephedrine tablets to an individual named J.R. and gave a small portion of them to co-defendant Karen Brooks. R.T. 160-161, 164-165. J.R. paid Williams $20,000 for these tablets, and Williams paid the [movant] $10,000 for his assistance. R.T. 160-161, 175-176.
Approximately one month later, after Williams had asked for more pseudoephedrine, the [movant] delivered two more drums of pseudoephedrine tablets to Williams at the [movant's] house. R.T. 161-162. Williams took these tablets to J.R. R.T. 163. Though J.R. claimed that these tablets were later stolen from him, he eventually paid Williams $7,000. Williams gave the [movant] half of this money. R.T. 163, 181.
The [movant] later provided Williams with another 30-gallon drum of pseudoephedrine tablets, and Williams gave him $4,000 for his services. R.T. 181-182, 165-166. Williams delivered this drum of pseudoephedrine to Karen Brooks. R.T. 164-165.
Karen Brooks also testified pursuant to a cooperation agreement with the government. She admitted that she was a methamphetamine addict. R.T. 149. She further testified that she knew Derrick Williams, who asked her in the fall of 1998 if she knew of anyone who might want to buy some pseudoephedrine. R.T. 146-147. Brooks asked around and learned that co-defendant Ronald Hardin was interested in obtaining pseudoephedrine. R.T. 147. With Brooks' assistance, Hardin purchased some pseudoephedrine from Williams. R.T. 147-148. Brooks received $1,000 and some methamphetamine for her services. R.T. 148-149. About one month later, with Brooks' assistance, Williams again sold Hardin some pseudoephedrine. R.T. 149-151. Brooks again received $1,000 and some methamphetamine. R.T. 151.
During the course of their conversations, Williams told Brooks that he was getting the pseudoephedrine tablets from a person named Thomas. Williams explained that he used to work at a chemical plant, and that Thomas still worked there. R.T. 152. Thomas would get pills from the plant that had been discarded as waste. R.T. 152. While Williams never identified his supplier's last name when talking to Brooks, he used the first name of Thomas several times. R.T. 152.
Drug Enforcement Administration Special Agent Robert Edward Kittrell testified that one of the barrels that the [movant] removed from Alza, if used to manufacture methamphetamine, would produce approximately 25 to 30 pounds of methamphetamine. R.T. 191, 182. As the [movant] delivered pseudoephedrine to Williams on three occasions, totaling six barrels, those six barrels of pseudoephedrine were capable of producing between 150 and 180 pounds of methamphetamine. R.T. 182, 191.
Title 28 U.S.C. § 2255 provides, in part, as follows: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner/movant must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. After a petitioner/movant identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner or movant must establish that he was prejudiced by counsel's deficient performance.
Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams v. Taylor, 529 U.S. 362, 391-92 (2000); Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002), concurring and dissenting opinion amended, 385 F.3d 1247 (9th Cir. 2004)(quoting Strickland, 466 U.S. at 697).
In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). However, that deference "is predicated on counsel's performance of sufficient investigation and preparation to make reasonably informed, reasonably sound judgments." Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc).*fn5
Movant raises numerous claims alleging ineffective assistance of trial counsel. He also claims his appellate counsel rendered ineffective assistance in failing to raise a claim of prosecutorial misconduct on appeal. Each of these claims, in turn, below is addressed below.
1. Trial Counsel's Disbarrment
Movant's first claim is that attorney Muhammad's suspension from practice prior to the commencement of his trial constitutes ineffective assistance of counsel and should result in "per se reversal" of his conviction. Memorandum of Points and Authorities in Support of Motion (hereafter "P&A"), at 23-24.*fn6 This claim was rejected by the U.S. Court of Appeals for the Ninth Circuit on movant's direct appeal. In its published opinion, the appellate court held, among other things, that movant's representation by an attorney who was suspended from practice prior to the trial did not result in a per se denial of the Sixth Amendment right to the effective assistance of counsel, but that movant was required to demonstrate deficient performance and prejudice. Ross, 338 F.3d at 1056-57. This court is bound by the decision of the Court of Appeals in this regard. See Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) (under the doctrine of law of the case "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.") Accordingly, movant is not entitled to relief on this claim.
2. Failure to Pursue Motion to Suppress
Movant claims that attorney Muhammad rendered ineffective assistance by failing to pursue a motion to suppress his statements to the police and to employees of Alza and Confidential Management Services (CMS). P&A at 25-27. A motion to suppress these statements was filed by attorney Holley but was withdrawn by attorney Muhammad. Movant argues that the motion to suppress was meritorious and that suppression of his statements would have led to a different outcome at trial. With regard to the merits of the motion, he argues that:
(1) his statements to CMS and Alza employees were the product of state action because those employees were acting at the direction of law enforcement authorities; (2) his statements to CMS and Alza employees were psychologically coerced through methods that caused his will to be overborne; (3) his statements to CMS and Alza employees were involuntary because they were the product of physical assault and threats of "harm to his family, rearrest and loss of his job;" and (4) his statements to CMS and Alza employees and to Detective Benevides of the Vacaville Police Department were obtained in violation of his right to counsel. Id. at 26-27.
The failure of trial counsel to file a motion to suppress may support a claim of ineffective assistance of counsel. Kimmelman, 477 U.S. at 383; Moore v. Czerniak, 574 F.3d 1092, 1101 -1102 (9th Cir. 2009). In order to prevail on the deficient performance prong of Strickland, a petitioner must demonstrate that his counsel's failure to file such a motion "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. In order to demonstrate prejudice, a petitioner must also demonstrate that: (1) the motion is meritorious, and (2) the verdict would have been different absent the excludable evidence. Kimmelman, 477 U.S. at 375. Because movant's claim involves trial counsel's failure to suppress a confession, the prejudice question is also informed by Arizona v. Fulminante, 499 U.S. 279 (1991). Under Fulminante, the prejudice analysis must be conducted with an awareness that "a confession is like no other evidence," and that "a full confession may have a 'profound impact' on the jury." 499 U.S. at 296. A reviewing court must "exercise extreme caution" before determining that the failure to move to suppress a coerced confession was not prejudicial. Id. See also Moore, 574 F.3d at 1101-03.
Respondent argues that attorney Muhammad may have withdrawn the motion to suppress in order to keep the Government "in the dark" about the nature of movant's testimony regarding the coercive nature of his interrogations. Response to § 2255 motion (hereafter "Response"), at 16-17. He contends this tactical decision was reasonable. Id. Movant, on the other hand, argues that the nature of his testimony on this subject was apparent from the pleadings. He speculates that Muhammad withdrew the motion because he wanted to "save himself work and to marshal whatever monies were available for fees." Reply at 8-9. However, the court need not address whether attorney Muhammad made a reasonable tactical decision to withdraw the motion to suppress. For the reasons set forth below, movant was not prejudiced by counsel's decision.
b. Merits of Motion -- Movant's Statements to Alza/CMS Employees
As described above in the factual background section, movant made a number of incriminating statements to employees of Alza and/or CMS, the private investigation company hired by Alza. In the motion to suppress filed by attorney Holley, movant argued that these statements were coerced and were obtained in violation of his right to counsel. Dckt. No. 56. He contended that all statements made by movant to these employees were the equivalent of statements to the police because the employees were "being aided and encouraged by members of law enforcement, merging their legal identities for purposes of the Fourth, Fifth and Sixth Amendments to the United States Constitution." Id. at 4. In support of this contention, movant explained that during his interrogation by a CMS employee on December 18, 1998, he overheard his interrogator make a telephone call to Detective Benevides, although he could not tell what was being said. Id. at 3. In addition, before he was released the CMS investigator and an Alza security officer called Benevides and made an appointment for movant to be interviewed by the Vacaville police. Id.
In United States v. Attson, 900 F.2d 1427, 1432 (9th Cir. 1990), the Ninth Circuit held that "where a private party acts as an 'instrument or agent' of the state in effecting a search or seizure, Fourth Amendment interests are implicated" (citing United States v. Walther, 652 F.2d 788 (9th Cir. 1981)). On the other hand, where a private party "act[s] for a reason entirely independent of the government's interest to collect evidence for use in [a] criminal prosecution," the Fourth Amendment does not apply. Id. at 1433. The appellate court explained:
Determining whether the conduct of a non-law enforcement governmental party is subject to the Fourth Amendment presents a question that is analytically quite similar to determining whether the conduct of a private party is subject to the Fourth Amendment. Both of these analyses proceed from the premise that at its core the Fourth Amendment was designed to apply to the conduct of law enforcement officials engaged in criminal investigations and that if the application of the Fourth Amendment is to expand beyond that core, the conduct to which it expands must approximate the types of activities to which the amendment is primarily directed; in other words, such conduct must be considered a "search" or "seizure." In addition, both analyses require us to gauge whether the party whose actions are challenged intended to assist the government in activities ("searches or seizures") covered by the Fourth Amendment, or whether his motivation was independent of such considerations. . . We thus conclude that for the ...