The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER
RE: MOTION PURSUANT TO 28 U.S.C. § 2255 (Doc. 275)
Clifton Elias Howard III ("Petitioner") proceeds with a motion to 28 U.S.C. § 2255. (Doc. 275). The United States of America ("Respondent") filed opposition to Petitioner's motion on May 12, 2011. (Doc. 284). Petitioner filed a traverse on August 5, 2011. (Doc. 289).
On April 26, 2006, a jury found Petitioner guilty of one count of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a), one count of armed credit union robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one count of brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). The evidence showed that Petitioner was a member of a group that committed several armed robberies in the Modesto area. The Government's case against Petitioner was based, inter alia, on the testimony of eye-witnesses, the testimony of Petitioner's co-conspirator George Dancer, and physical evidence linking Petitioner to the conspiracy. The Ninth Circuit affirmed Petitioner's conviction on May 15, 2008. United States v. Howard, 278 Fed. Appx. 777 (9th Cir. 2008) (unpublished).
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 (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).
Count One of Petitioner's indictment charged conspiracy in violation of 18 U.S.C § 1951(a). Petitioner contends that his indictment was duplicitous because Count One charged Petitioner with conspiracy to commit the separate crimes of robbery, attempted roberry, and robbery.
"An indictment is considered duplicitous if a single count combines two or more different offenses." United States v. Renteria, 557 F.3d 1003, 1007 (9th Cir. 2009). Whether an indictment is duplicitous depends on whether the indictment charges two separate offenses in one count, or merely state multiple ways of committing the same offense. United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). Where a statute defines a single offense that may be committed by several alternative means, it is proper for the government to charge different means of a crime connected by conjunctions in the indictment when the means are listed disjunctively in the statute. Renteria, 557 F.3d at 1007. Section 1951 provides, in pertinent part:
a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
Petitioner's duplicity argument lacks merit. Count One does not charge multiple district offenses, rather, the references to conspiracy to commit robbery, attempted roberry, and robbery Petitioner complains simply set forth predicate acts underlying the single violation charged in Count One: violation of 18 U.S.C. § 1951(a). As the Ninth Circuit explained in United States v. Yarbrough, 852 F.2d 1522, 1530-31 (9th Cir. 1988):
On its face, paragraph 19 [of Count One of the indictment] sets out two separate offenses -- disposing of $3.6 million of the Ukiah armored car robbery proceeds and receiving $10,000 of that money. However, Craig is not "charged" with violations 2315. these charges simply of 18 U.S.C. §§ 2 and constitute predicate RICO Rather, acts. Count I charges her with one federal crime -- violation of the federal racketeering laws. The indictment, therefore, was not duplicitous (Emphasis added).
Petitioner also asserts an ineffective assistance of counsel claim based on counsel's failure to object to duplicitous indictments. As petitioner's substantive claim lacks merit, Petitioner cannot establish deficient performance of counsel or prejudice. E.g., Strickland v. Washington, 466 U.S. 668, 690-92 (1984).
Petitioner challenges his indictment on the grounds of multiplicity. Petitioner contends he was charged with robbing the same bank in Count and Count 6 of the indictment, violating the Double Jeopardy Clause.
An indictment is multiplicitous if it charges a single offense in more than one count. United States v. Awad, 551 F.3d 930, 937 (9th Cir. 2009). The test for multiplicity is whether each count requires proof of an additional fact which the other does not. Id. (citing United States v. Garlick, 240 F.3d 789, 793-94 (9th Cir. 2001 and Blockburger v. United States, 284 U.S. 299, 304 (1932)). Multiplicity is a defect in the indictment, and a conviction will not be reversed unless the defendant was prejudiced by the defect. See, e.g., United States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003). A multiplicitous indictment threatens to ...