ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (Doc. 107)
Petitioner Quentin I. Jackson ("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 December 6, 2007, Petitioner was found guilty by a jury on one
count of attempted bank robbery, three counts of armed bank robbery,
four counts of carrying a firearm during a crime of violence and one
count of interference with commerce by robbery. On March 3, 2008,
Petitioner was sentenced to a total of 1070 months imprisonment
followed by a 60-month term of supervised release. On
November 29, 2010, following an unsuccessful appeal,*fn1
Petitioner filed this motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective
assistance of trial and appellate counsel, prosecutorial and judicial
misconduct and lack of jurisdiction by the trial court. The government
filed its opposition to Petitioner's section 2255 motion on January
" '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 trial counsel -- Petitioner raises various claims alleging ineffective assistance of trial 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. Ryan, 679 F.3d 780 (9th Cir. 2012) (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 object to jury instructions regarding reasonable doubt -- Petitioner first contends trial counsel was ineffective for failing to object to the jury instructions regarding reasonable doubt. In particular, Petitioner contends counsel should have objected because the trial court gave conflicting instructions to the jury by alternately telling the jury that the government was and was not required to prove guilt beyond a reasonable doubt. "When, as here, the basis for the ineffective assistance claim is the failure to raise an issue, we must look to the merits of the omitted issue. If the omitted issue is without merit, then counsel's failure to raise it is not prejudicial, and thus is not ineffective assistance." U.S. v. Orange, 447 F.3d 792, 797 (10th Cir. 2006) (citing Jones v. Gibson, 206 F.3d 946, 959 (2000)). Having reviewed the record in its entirety, the Court finds no merit to Petitioner's contention. The reasonable doubt instructions given to the jury by the trial court read as follows:
"The government has the burden of proving each element of each of the charges beyond a reasonable doubt. [¶] The standard of proof, proof beyond a reasonable doubt, is proof that leaves you firmly convinced that the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.
A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. [¶] It may arise from a careful and impartial consideration of all the evidence or from lack of evidence. If, after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.
On the other hand, if, after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty."
These instructions accurately stated the law on reasonable doubt. See U.S. v. Velasquez, 980 F.2d 1275, 1277-79 (9th Cir. 1992) (approving nearly identical instruction). Petitioner has not identified -- and the Court has been unable to locate -- any part of the record where the trial court allegedly gave erroneous or conflicting instructions on reasonable doubt. Accordingly, counsel's failure to object to the reasonable doubt instructions could not have constituted ineffective assistance of counsel.
2. Failure to object to statements from juror -- Petitioner further contends trial counsel was ineffective for failing to object to statements made by one of the jurors during the jury selection process. Not so. First, Petitioner has not identified the particular juror in question, let alone the statements he or she allegedly made. Second, Petitioner has provided no argument or evidence to explain how counsel's failure to object to the statements might have constituted deficient representation causing prejudice to Petitioner. Accordingly, Petitioner's contention is meritless.
3. Failure to challenge composition of the jury -- Petitioner further contends trial counsel was ineffective for failing "to make objection as to the make up of the jury after defendant informed attorney of his concerns, and failed to follow up on claim but only telling the court that [Petitioner] is expressing concern that there wasn't one Black on the panel or in the jury pool, with the court just saying understood is there anything else which attorney only stated no. Not questioning or really addressing [Petitioner's] concerns or bringing up what was said between attorney and [Petitioner] concerning the jury not being a ...