The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
I. SUMMARY OF PROCEEDINGS
On February 23, 2010, Defendant filed a "Motion for Relief under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." ("Mot."). On October 28, 2010, the Government filed its Opposition to the Motion to Dismiss ("Opp'n"), accompanied by the Declaration of Jennie Wang and attached exhibits. On April 7, 2011, Defendant filed a Reply.
On February 14, 2001, a federal grand jury in this district returned a two-count indictment charging Defendant with: (1) conspiracy to possess narcotics with intent to distribute, in violation of 21 U.S.C. § 846; and (2) and attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). (United States v. Holler, ED CR 01-0018 VAP, Doc. No. 1.)*fn1 On March 1, 2002, the United States filed a superseding indictment charging Defendant with the same crimes as the original indictment. (Doc. No.94.)
A jury convicted Defendant on both counts on November 27, 2002. On March 24, 2003, the Court sentenced him to 250 months incarceration and a five-year term of supervised release. Defendant appealed his conviction and sentence to the Ninth Circuit Court of Appeals, which affirmed the conviction, but remanded the case for hearing under Ameline*fn2 as to the sentence. United States v. Holler, 411 F.3d 1061 (9th Cir. 2004). After a hearing on January 31, 2006, the Court declined to impose a sentence different from its original sentence. (See Doc. No. 301.)
Defendant asserts three grounds in his motion for relief under section 2255: (1) his conviction was obtained "by use of evidence gained pursuant to an unconstitutional search and seizure" (Mot. at 5a); (2) his conviction was obtained "by the unconstitutional failure of the prosecution to disclose to the defendant favorable information to the defendant" (Mot. at 5a-5b); and (3) he was denied the effective assistance of counsel (Mot. at 5c).
A. Defendant's First Claim:
Violation of the Fourth Amendment In his first claim, Defendant asserts he was convicted because the Government relied on a "flash warrant" that it obtained improperly. (Mot. at 5a.) Defendant's first claim is not cognizable as it is procedurally barred.
"Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice' or that he is actually innocent." Id. at 622 (internal citations omitted); see also United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (sentencing errors not raised on direct appeal are waived and may not be reviewed by section 2255 motion). A defendant can demonstrate "cause" by showing "that some objective factor external to the defense impeded his adherence to the procedural rule." United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (citation and internal quotation omitted).
Defendant previously litigated the propriety of the warrant as part of his outrageous government conduct claim, but at that time did not allege that the flash warrant violated his Fourth Amendment rights against unlawful search and seizure. Accordingly, Defendant cannot assert his Fourth Amendment claim now unless he demonstrates cause and actual prejudice. Schlesinger, 49 F.3d at 485.
Here, Defendant does not argue, much less produce any evidence, why he could not raise his Fourth Amendment claim during trial proceedings or on direct appeal after his conviction. Hence, Defendant procedurally defaulted on his first claim, and because he did not demonstrate cause excusing the default, Defendant's first claim is barred. United States v. Braswell, 501 F.3d 1147 (9th Cir. 2007).
B. Defendant's Second Claim:
Violation of the Fifth and Sixth Amendments for Failure to Disclose Allegedly Exculpatory Information Defendant next asserts the Government failed to disclose exculpatory evidence in violation of the Fifth and Sixth Amendments. (Mot. at 5a-c.)
1. Issues Raised in Defendant's Motion
Defendant contends the Government failed ...