ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (Doc. 246)
Petitioner Victor Lamont Brown ("Petitioner") has filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. For reasons discussed below, the motion shall be denied.
II. FACTS AND PROCEDURAL BACKGROUND
On November 9, 2000, Petitioner was found guilty by a jury on three counts of (1) conspiracy to distribute, and possess with intent to distribute, cocaine under 21 U.S.C. §§ 846 and 841(a)(1); (2) possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1); and (3) criminal forfeiture of $1,090,968.00 under 21 U.S.C. § 853. On January 22, 2001, Petitioner was sentenced to life imprisonment on the first two counts to be served concurrently for a total term of life, followed by a 120-month term of supervised release. On November 14, 2003, following an unsuccessful appeal,*fn1 Petitioner filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of trial and appellate counsel. The government filed its opposition to Petitioner's § 2255 motion on January 23, 2004.
On October 2, 2006, Petitioner filed a notice of change of address stating he was housed at United States Penitentiary (USP) Lewisburg, P.O. Box 1000, Lewisburg, PA 17837. On September 4, 2007, Petitioner filed a second notice of change of address stating he was housed at USP Victorville, P.O. Box 5500, Adelanto, CA 92310. On April 13, 2009, Petitioner filed a letter requesting a status report from the clerk of court. The letter reflected the Adelanto address.
On May 19, 2009, Petitioner's criminal case was reassigned to this Court. The clerk of court served notice of the reassignment on Petitioner by mail. On May 27, 2009, the notice of reassignment mailed to Petitioner was returned to the Court marked undeliverable and unable to forward. On September 11, 2009, Petitioner's section 2255 action was also reassigned to this Court. Again, the clerk of court served notice of the reassignment on Petitioner by mail. On September 21, 2009, the second notice of reassignment mailed to Petitioner was returned to the Court marked undeliverable and unable to forward. In an order issued July 21, 2010 and filed July 22, 2010, the Court, in the absence of further correspondence from Petitioner, dismissed Petitioner's section 2255 action for failure to prosecute or advise the Court of a current address as required by Local Rule 183(b). A copy of the order was mailed to Petitioner on July 22, 2010 but was also returned.
On July 7, 2011, Petitioner filed a motion pursuant to Federal Rule of Civil Procedure 60(b) for relief from the Court's July 21, 2010 order dismissing his section 2255 action, alleging the dismissal was taken against him on ground of mistake, inadvertence or excusable neglect. The government did not file a written opposition to Petitioner's Rule 60(b) motion for relief.
On December 23, 2011, the Court vacated its July 21, 2010 order dismissing Petitioner's section 2255 action and reinstated the action to the active calendar of the Court.
" 'In general, [28 U.S.C.] § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of his detention.' " Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (quoting Lorentsen v. Hood, 223 F.3d 950, 943 (9th Cir. 2000)). Under section 2255, "[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 imposed 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." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id., § 2255(b). "In determining whether a hearing and findings of fact and conclusions of law are required, '[t]he standard essentially is whether a movant has made specific factual allegations that, if true, state a claim on which relief could be granted.' Under this standard, a district court may summarily dismiss a § 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.' " U.S. v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)) (internal citations omitted).
A. Ineffective assistance of counsel -- In his motion, Petitioner raises nineteen specific claims*fn2
involving allegations of ineffective assistance by trial and/or appellate counsel. "The Sixth Amendment guarantees criminal defendants the effective assistance of counsel." Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). "In order to establish ineffective assistance of counsel, a petitioner must prove both deficient performance by his counsel and prejudice caused by the deficiency. To demonstrate deficient performance [the petitioner] must show that counsel's performance 'fell below an objective standard of reasonableness' based on 'the facts of the particular case [and] viewed as of the time of counsel's conduct.' " Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 688-90, 104 S.Ct. 2052, 80 L.Ed.2dd 674 (1984)). The court "must apply a' strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. The [petitioner] bears the burden of showing 'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed [petitioner] by the Sixth Amendment.' " James v. Schriro, 659 F.3d 855, 879-80 (9th Cir. 2011) (quoting Strickland, supra, at 687, 689). "In order to establish prejudice [the petitioner] 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Gonzalez, supra, 667 F.3d at 987 (quoting Strickland, supra, 466 U.S. at 694). "Because failure to meet either prong is fatal to [the petitioner's] claim, there is no requirement that [the court] 'address both components of the inquiry if the defendant makes an insufficient showing on one.' " Id.
1. Failure to suppress inculpatory statements by pretrial motion or object to evidence of such statements at trial -- As a threshold matter, Petitioner contends trial counsel were ineffective because they failed to (1) file pretrial motions to suppress certain inculpatory statements made by Petitioner to law enforcement and (2) object to the admission of such statements into evidence during the course of trial. Petitioner's theory of suppression is this: On the third day of trial, DEA Special Agent Alan Lopez, one of the agents who interviewed Petitioner after his arrest on August 7, 1998, testified Petitioner spoke to him over the course of several days about the narcotics that were found in his possession and the drug-related activities he had been conducting. Lopez testified that during the first interview, Petitioner explained how he did business, including how he had been able to make money in drug trafficking, and also provided the names of the individuals who were supplying him with cocaine. Lopez's testimony was not challenged by counsel during trial, and no pretrial motions were filed to suppress Petitioner's statements or determine whether they were made without the benefit of Miranda warnings. From this, Petitioner asserts counsel were ineffective because such motions, he contends, would necessarily have revealed that the DEA failed to advise Petitioner of his Miranda rights or obtain a valid waiver of those rights before interrogating him. Not so.
"To show prejudice under Strickland from failure to file a motion, [the petitioner] must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him." Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (citing Kimmelman v. Morrison, 477 U.S. 365, 373-74, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). Petitioner suggests that a motion to suppress would have been granted because any asserted waiver of his rights was not voluntary, knowing or intelligent, and thus invalid, under the totality of the circumstances test. "For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's 'waiver of Miranda rights must be voluntary, knowing, and intelligent.' " U.S. v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (internal citations omitted). "The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d (1986). Petitioner, however, has not explained how his waiver might have been involuntary or unknowing in any sense, nor has he identified evidence his attorneys might have raised to show this was the case. Petitioner has also not alleged any coercive circumstance other than the simple fact of custody and interrogation. Consequently, Petitioner cannot show that a motion to suppress his statements would reasonably have been granted by the trial court, let alone resulted in an outcome more favorable to him. Petitioner suggests he was "coerced" into making a statement because he believed he had no choice but to talk if he wanted the government to release his girlfriend and father, who had also been arrested as part of the government's operation. Problematically for Petitioner, nothing suggests the government was holding his girlfriend and father for the purpose of extracting a confession from him. Compare U.S. v. Tingle, 658 F.2d 1332, 1335-36 (9th Cir. 1981) (confession held involuntary where interrogators threatened to take away petitioner's child if she refused to cooperate).
Petitioner further suggests his waiver was invalid because he did not execute any written waiver forms or make an oral waiver on tape. "An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). At trial, Lopez testified that Petitioner was advised of his Miranda rights at the beginning of the first interview and stated he understood them, even though the interview itself, in accordance with DEA policy, was not recorded. Lopez further testified he gave Petitioner Miranda warnings prior to each of the subsequent interviews. Lopez's testimony remained consistent between direct and cross-examination, and was corroborated by two reports prepared by Fresno Police Department Detectives
J. A. Galvan and Pete Santellano showing Petitioner was advised of his constitutional rights, stated he understood them and said he wanted to make a deal. While those reports do not appear to have been introduced into evidence at trial, the government contends -- and Petitioner does not dispute -- the reports were produced in discovery. Trial counsel, having investigated the facts before trial, presumably realized that under the circumstances, there was no reasonable possibility Petitioner's statements would be suppressed because the matter would hinge on issues of credibility, which the trial court would likely have resolved against Petitioner, and the filing of a motion to suppress would therefore have been futile. Counsel's decision to abstain from filing a futile motion is a matter of professional judgment that does not fall below an objective standard of reasonableness. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). The same is true for counsel's decision not to object to the admission of Petitioner's statements (see Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996)), particularly where, as here, the bulk of the evidence suggests the results of the proceeding would have been the same even if the inculpatory statements had been excluded. Accordingly, the Court finds trial counsel's failure to file pretrial motions to suppress Petitioner's statements or object to admission of such statements at trial did not rise to the level of ineffective assistance.
2. Failure to move to preserve and compel production of interviewer's rough notes -- Petitioner further contends trial counsel were ineffective because they failed to move to preserve and compel production of rough notes made by Lopez during Petitioner's interviews, which Petitioner contends were inconsistent with the interviewers' final reports and would have validated Petitioner's claim that his confession was not the product of a knowing and voluntary waiver of his Miranda rights. The Court disagrees. Even assuming counsel's failure to preserve and obtain the rough notes fell below an objective standard of reasonableness, Petitioner has offered no evidence to establish prejudice. Nothing suggests the notes were exculpatory or would have controverted the testimony of Lopez. Petitioner's conclusory assertion that the rough notes would have shown an invalid waiver, without more, does not establish the notes would have been helpful to the defense, and is therefore insufficient to show the outcome would have been more favorable to Petitioner had counsel obtained the notes. To the extent Petitioner contends counsel's failure to move to compel production of the notes in discovery rendered counsel ineffective simply because counsel was unprepared for trial, the claim likewise fails, as Petitioner has not explained how, had counsel possessed the notes prior to trial, counsel would have prepared differently for trial or modified their trial strategy.
The notes, insofar as shown by Petitioner, were significant only because they could be used to impeach Lopez. However, the record reflects that defense counsel extensively cross examined Lopez about the (non)existence of the notes, going so far as to elicit testimony from Lopez that (1) he believed it was imperative the notes be retained, given the severity of the allegations and the fact it was not DEA policy to record interviews; and (2) the notes were accidentally lost when he shipped boxes of documents from Fresno, California to his new office in Bogota, Colombia. In other words, counsel made use of the government's failure to provide the notes for impeachment purposes. Thus, Petitioner cannot show that he was prejudiced by counsel's failure to obtain the notes. ...