The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING SECTION 22555 PETITION
Way Quoe Long ("Petitioner") proceeds with a motion to vacate his conviction pursuant to 28 U.S.C. 2255. Petitioner filed his original petition on February 2, 2004. (Doc. 158). Petitioner filed an amended motion on October 28, 2004. (Doc. 168). The United States filed opposition to Petitioner's motion on September 14, 2005. (Doc. 182). The United States filed supplemental opposition on September 25, 2005. (Doc. 183). Petitioner filed replies to the United States opposition on December 29, 2005. (Docs. 188, 189).
In July 1997, a jury found Petitioner guilty of engaging in a continuing criminal enterprise; conspiracy to manufacture, distribute, and posses with intent to distribute marijuana; two counts of manufacturing marijuana and aiding and abetting; and several federal firearms offenses including possession of a machine gun, assault rifle, and silencer.*fn1 The continuing criminal enterprise Petitioner was convicted for was a marijuana growing and selling operation. According to evidence adduced at trial, Petitioner was involved with the cultivation and distribution of marijuana produced at several grow sites located in Fresno County, California. Witness testimony, receipts, property, and phone numbers tied to Petitioner were used to link Petitioner to the continuing criminal enterprise. Petitioner's conviction was affirmed on appeal at United States v. Long, 301 F.3d 1095 (9th Cir. 2002); many of the claims asserted in the instant petition have already been rejected by the Ninth Circuit.
Federal prisoners may file motions to vacate, set aside, or correct a sentence on 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." 28 U.S.C. § 2255. Where the petitioner does not allege lack of jurisdiction or constitutional error, relief under section 2255 is inappropriate unless the alleged error resulted in a "complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995). "[R]elief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); United States v. Addonizio, 442 U.S. 178, 184, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). A court deciding a motion under section 2255 is not required to hold an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
A. Ineffective Assistance of Counsel Claims
In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Strickland, 466 U.S. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential and there exists a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
Second, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result...would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Quintero-Barraza, 78 F.3d at 1348 (quoting Strickland, 466 U.S. at 694). A court evaluating an ineffective assistance of counsel claim does not need to address both components of the test if the petitioner cannot sufficiently prove one of them. Strickland, 466 at 697; Thomas v. Borg, 159 F.3d 1147, 1151-52 (9th Cir. 1998).
Failure to convey a plea bargain may constitute ineffective assistance of counsel. See, e.g., Nunes v. Mueller, 350 F.3d 1045, 1056 (9th Cir. 2003) (affirming grant of habeas relief were petitioner was prejudiced by counsel's failure to accurately convey plea bargain); see also Perez v. Rosario, 449 F.3d 954, 957 (9th Cir. 2006). In order to establish ineffective assistance with respect to a plea bargain, a petitioner must show that his counsel's advice during the plea bargaining process "fell below an objective standard of reasonableness." Id. (quoting Strickland).
Petitioner contends that his trial counsel was constitutionally deficient if she failed to inform him of pre-trial plea bargains offered by the Government. Petitioner presents no evidence that the Government ever offered a plea bargain that was not conveyed by trial counsel. Rather, Petitioner speculates that because the Government allegedly offered him a plea bargain during his appeal, the Government also might have offered him a plea bargain before and/or during trial that was not conveyed to him. Petitioner's unsupported speculation is insufficient to establish entitlement to relief under section 2255. E.g., Farrow v. United States, 580 F.2d 1339, 1355 (9th Cir. 1978) (section 2255 petitioner must prove ineffective assistance of counsel by preponderance of the evidence); accord United States v. Ruelas, 2010 U.S. Dist. LEXIS 113157 * 6 (C.D. Cal. 2010) (applying preponderance standard in section 2255 action); Trigilio v. United States, 2010 U.S. Dist. LEXIS 32684 * 4-5 (C.D. Cal. 2010) (same); see also Finley v. United States, 2008 U.S. Dist. LEXIS 107006 * 18 (E.D. Cal. 2008) (citing Hearn v. United States, 194 F.2d 647, 649 (7th Cir. 1952) for the proposition that section 2255 actions are subject to preponderance standard). Inter alia, Petitioner has not presented any admissible evidence to suggest that his counsel failed to convey a plea bargain offered to Petitioner.*fn2
2. Prosecutorial Misconduct Claims
Petitioner asserts that his trial counsel was ineffective for failing to object to several instances of prosecutorial misconduct. In order to satisfy the prejudice prong of his ineffective assistance of counsel claims, Petitioner must establish a reasonable probability that trial counsel's motions concerning prosecutorial misconduct would have been successful. E.g., Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008). Prosecutorial misconduct requires a mistrial if the prosecutor's conduct so infected the trial with unfairness that proceeding would violate due process. See, e.g., Darden v. Wainwright, 477 U.S. 168, 181 (1986); Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000).
a. Failure to Object to Alleged Subornation of Perjury
Petitioner contends that his trial counsel was ineffective for failing to object to the Prosecution's alleged subornation of perjury during trial. Petitioner alleges that the Prosecution suborned perjury by placing Khamsouk Vongphachanh on the witness stand, who testified that marijuana at the Lincon/West grow site belonged to Petitioner.*fn3 Petitioner contends that two individuals interviewed during the Government's investigation--Noumane "Tom" Sayavong and Chai Prasop-- gave statements that were at "loggerheads" with Vongphachanh's testimony. (Amd. Pet. at 15).
Specifically, Petitioner notes that (1) Sayavong told the Prosecution during an interview that he and Petitioner had purchased marijuana from the Lincoln/West grow site from Vongphachan, and (2) Prasop told the Prosecution in an interview that Petitioner wanted to steal Vongpachonh's marjiuana crop from the Lincoln/West grow site. Petitioner contends that, in light of these statements, the Prosecution could not have believed Vongphachanhn's testimony to be true, because Prasop and Savayong's statements suggest that Petitioner did not control the grow site but was instead buying marijuana from the site's true owners and wanted to steal the crop. The Court of Appeal has already decided that Vongpachonh's testimony was properly considered. Long, 301 F.3d at 307.
Petitioner's allegations do not suggest prosecutorial misconduct, as mere inconsistencies among various witness' testimony are insufficient to support an inference of knowing subornation of perjury. See, e.g., United States v. Nelson, 2009 U.S. Dist. LEXIS 105437 * 9-10 (D. Idaho 2009) (rejecting perjury allegations based solely on inconsistencies in testimony of witnesses offered by the prosecution at trial). The fact that the Prosecution chose to accept Vongpachonh's version of the facts regarding the Lincoln/West grow site instead of Prasop's and Savayong's does not support an inference that the Prosecution suborned perjury. Petitioner's claim is deficient because, inter alia, he has not established by admissible evidence that any witness committed perjury, much less that the prosecution knowingly elicited perjury during trial. Absent such a showing, Petitioner cannot establish a reasonable likelihood that a motion by his trial counsel asserting subornation of perjury would have prevailed. See, e.g., Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2003) (discussing showing required to prevail on subornation of perjury allegation). "A bare allegation that false or perjured testimony was introduced, without a showing that the prosecution knew of its falsehood, is not sufficient for relief." Cochran v. Kramer, 2010 U.S. Dist. LEXIS 12474 * 33-34 (E.D. Cal. 2010) (citing Woodford, 336 F.3d at 1152). There is no reasonable probability that, had Petitioner's trial counsel asserted prosecutorial misconduct at trial based on alleged subornation of perjury, Petitioner would have received a more favorable outcome.
b. Failure to Object to Alleged Misconduct During
It is misconduct for a prosecutor to refer to the testimony of a witness in an opening statement where the prosecutor knows the witness will not be called to testify at trial. See, e.g., Hill v. Uribe, 2010 U.S. Dist. LEXIS 141036 * 68 (S.D. Cal. 2010) (adjudicating misconduct claim). In determining whether a prosecutor's opening statement warrants a mistrial, a court must determine "whether the prosecutor's remarks were improper and, if so, whether they infected the trial with unfairness." Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.2005).
Petitioner contends that the Prosecution represented during its opening statement that it would call Prasop and offered a "damming summation of Prasop's proposed testimony." (Amd. Pet. at 18-19). At trial, the Prosecution represented that Prasop was no longer willing to testify because he had received a threatening letter. Petitioner speculates that the Prosecution's representation was false, but presents no competent evidence of this bald assertion.
After the Prosecution notified the court of Prasop's unwillingness to testify, the court held a hearing at which the threatening letter was produced. In light of the fact that the threatening letter was produced by the Prosecution and reviewed by the court, there was no reasonable basis for Petitioner's trial counsel to assert prosecutorial misconduct after the Prosecutor presented evidence that Prasop had been threatened and was thereafter unwilling to testify. Further, there is no reasonable probability that, had Petitioner's trial counsel asserted a claim of prosecutorial misconduct when the Prosecution notified the court that Prasop was unwilling to testify, Petitioner would have received a more favorable outcome.*fn4 Absent such a showing, Petitioner cannot establish he was prejudiced by counsel's failure to move for a mistrial. Styers, 547 F.3d at 1030. The jury was admonished at the commencement and conclusion of trial that statements made by attorneys during the course of the trial are not evidence. In light of the totality of the circumstances, there is no reasonable probability that a motion for mistrial would have been granted because, as a general matter, curative instructions prevent the trial from being so "infected with unfairness" that a mistrial is required. See, e.g., Tan, 413 F.3d at 112 (rejecting unfairness claim in light of curative instructions).
3. Failure to Advance Motions for Directed Verdicts
Petitioner contends that trial counsel rendered ineffective assistance by failing to move for judgments of acquittal on certain charges pursuant to Federal Rule of Criminal Procedure 29. In considering a motion for judgment of acquittal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002).
First, Petitioner contends counsel should have moved for a judgment of acquittal on Petitioner's operation of a continuing criminal enterprise under 21 U.S.C. § 848. Petitioner cannot establish that he suffered prejudice, as there is no reasonable probability that a motion for directed verdict would have succeeded. Styers, 547 F.3d at 1030. The Ninth Circuit rejected ...