The opinion of the court was delivered by: Present: The Honorable David O. Carter, Judge
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER'S
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion") filed by Petitioner Joel Boyd ("Petitioner"). (Dkt. 1). After reviewing the motion, opposition, and reply, the Court DENIES Petitioner's Motion. The Court finds the matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15.
On January 25, 2006, Petitioner was convicted of conspiracy to interfere with commerce by robbery, interference with commerce by robbery, and using, carrying, or brandishing a firearm during a crime of violence. Mot. (Dkt. 1) at 2. He was sentenced to 322 months. Id. The conviction was affirmed on appeal by the Ninth Circuit and the petition for writ of certiorari was denied by the Supreme Court. United States v. Boyd, 480 F.3d 1178 (9th Cir. 2007); Boyd v. United States, 550 U.S. 977 (2007). The same counsel ("Counsel") represented Petitioner during both the trial and the appeal.
On May 29, 2008, Petitioner filed the present Motion arguing that his conviction should be set aside due to ineffectiveness of counsel in violation of the Sixth Amendment and prosecutorial misconduct. Mot. (Dkt.1) at 4-6. Petitioner is represented by different counsel in this motion than at trial and on appeal. Id. at 1. a.Pre-trial
Counsel states he met with Petitioner before the trial to discuss possible defenses. Counsel Decl. (Dkt. 252) at ¶ 3. Counsel also states that, prior to trial, he discussed the consequences of a change of plea versus trial, and because Petitioner was a "career offender" and claimed to have information regarding unrelated cases, Counsel advised Petitioner that a plea agreement was in his best interest. Id. at ¶¶ 4-5.
At trial, Petitioner claims in his Motion that Counsel did not object to government witness K.S.'s testimony that although she only saw one of the two men that who committed the robbery, she assumed the man she did not see was African American, which is the same race as the Petitioner. Mot. (Dkt. 1) at 5. Counsel claims he did not raise an objection to the testimony because he believed that the jury would see the assumption was "ridiculous," which would discredit the witness. Counsel Decl. (Dkt. 252) at ¶ 8.
Petitioner claims in his Motion that Counsel brought in evidence of another pending case in which the Petitioner was also indicted involving cashing stolen treasury checks. Mot. (Dkt. 1) at 5. Counsel played the recording of the statement Petitioner made to FBI Special Agent Mark Matthews ("SA Matthews"), which included a confession to the check-cashing scheme. Counsel Decl. (Dkt. 252) at ¶ 9. Counsel alleges that introducing evidence of the check-cashing scheme through the recording during trial was part of a tactical decision to discredit SA Matthew's testimony that Petitioner admitted to the robbery off the record. Id.
At trial, a coconspirator ("Coconspirator R") testified that the Petitioner was one of the men involved in the robbery, and SA Matthews testified the Petitioner confessed to the crime off the record. Resp., SACR 05-72-DOC-1 (Dkt. 250) Ex. A, Ex. C. United States Secret Service Special Agent Wesley Schwark also testified that the Petitioner admitted to committing the crime. Resp. (Dkt. 250) at 4. The government also played a recording of a jailhouse conversation between the Petitioner and a coconspirator ("Coconspirator W"). Mot. (Dkt. 1) at 4. Counsel objected to the playing of the tape. Id.
During closing arguments, Counsel made several comments regarding the Petitioner. First, Counsel said Petitioner and the other person in Petitioner's recorded calls "did not grow up in the neighborhood [Counsel] grew up in, did not grow up probably in the neighborhoods [the jury] grew up in, and have a different way of speaking to one another when they're referring to certain thing." Mot. (Dkt. 1) at 5. Counsel claims he made this statement to "detract from the impact of [Petitioner's] use of language during the recorded calls." Counsel Decl. (Dkt. 252) at ¶ 10.
Second, Counsel stated: [T]hese are people-and I hesitate to say this-but these are people that are familiar with the system and are making types of decisions that you've never had to make. . . I know you don't like hearing about this stuff, because it's dirty. But that's what happens. That's reality. This isn't TV. This is real.
Mot. (Dkt. 1) at 5. Counsel "didn't like listening to the phone conversations. because of the way [Petitioner] spoke." Id. Counsel claims he made these statements so the jury would not use Petitioner's discussion with his mother regarding his plea agreement as an admission of guilt. Counsel Decl. (Dkt. 252) at ¶ 11.
Finally, Counsel also tells the jury that Petitioner told a coconspirator to give up if the FBI shows up because "if a person suspected of a violent crime doesn't give up, they get shot. I'm not saying there is anything wrong with that. As a matter of fact, there's probably something right with it." Mot. (Dkt. 1) at 5. Counsel claims he made this comment following a recording the jury heard where the Petitioner is heard telling his coconspirator to give himself up if the FBI arrests him. Counsel Decl. (Dkt. 252) at ¶ 12. Counsel claims he wanted the jury not to misconstrue what they heard in the recording as an admission. Id.
During the AUSA's closing arguments Petitioner claims the AUSA called Petitioner's wife and mother, who both testified at trial, "liars." Mot. (Dkt. 1) at 5. At trial, the AUSA said, "It's the prosecution's position [Petitioner's mother and wife] lied on the witness stand. They weren't mistaken. They didn't have a memory lapse. They lied." Resp. (Dkt. 250) at 5. The Government argues that after the comment was made, the AUSA went through the evidence to show why the testimony of Petitioner's wife and mother was not believable. Id. Counsel did not object to this comment at the time it was made. Mot. (Dkt. 1) at 5. Counsel did not object because Counsel did not believe the comment could be considered misconduct. Counsel Decl. (Dkt. 252) at ¶ 13.
The AUSA also made the following comments during the rebuttal arguments: (1) "I'm not gonna try and explain to you what reasonable doubt is, because when that happens, that's lawyers trying to get you to view the law the way they want you to view it"; (2) "what I suspect everyone in this room, other than the defense, realizes is that there are a multitude-a multitude of crimes that will violate both federal and state law"; and
(3) and the AUSA repeatedly referred to the defense argument as "counsel said" and "counsel may say." Mot. (Dkt. 1) at 5. Counsel did not object two the second and third comments at the time they were made. Id. Counsel did not object because he did not believe the comments could be considered misconduct. Counsel Decl. (Dkt. 252) at ¶ 13. Counsel did move for a mistrial after the AUSA's first comment. Resp. (Dkt. 250) Ex. D. d.Appeal
Petitioner was represented by the same counsel at trial and on appeal. Mot. (Dkt. 1) at 4. Petitioner's Reply ("Reply") claims Counsel never explained why the appeal argument chosen was the best strategy, and since the issue on appeal lost at trial, Petitioner expected Counsel to "dig a little deeper." Rep. (Dkt. 27) Ex. 1. Counsel claims he consulted with Petitioner and, based on the facts, the best argument on appeal would be that the robbery did not interfere with interstate commerce. Counsel Decl. (Dkt. 252) at ¶ 14. Counsel also claims he informed the Petitioner that he was free to choose another lawyer from the appellate panel. Id. Counsel alleges that the Petitioner agreed with the strategy, but made a comment to the effect that if the appeal failed an ineffective assistance of counsel motion would be raised. Id. Petitioner denies making any such comment. Rep. (Dkt. 27) Ex. 1.
A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds 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." 28 U.S.C. § 2255(b). If the motion combined with the files and records of the case "conclusively" show that the prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. Id.
The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F. Supp.2d 1181, 1187
(D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the "defendant must show a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184 (1979).
The Motion aims to vacate, set aside, or correct the sentence based on the following three arguments: (1) Petitioner received ineffective assistance of trial counsel;
(2) Petitioner received ineffective assistance of appellate counsel; and (3) the AUSA committed prosecutorial misconduct. Mot. (Dkt. 1) at 4-6.
a.Petitioner Did Not Receive Ineffective Assistance of Trial Counsel
The standard for evaluating a Sixth Amendment ineffective assistance of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Counsel's performance is constitutionally deficient when it "so undermine[s] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. A petitioner claiming ineffective assistance of counsel bears the burden of demonstrating that, under all the circumstances of his case: (1) "his counsel's performance was so deficient that it fell below an objective standard of reasonableness", and (2) his counsel's deficient performance prejudiced him, meaning "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir. 1995) (quoting Strickland v. Washington, 466 U.S. at 687-88, 694). An after-the-fact examination of counsel's performance "is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.3d 1251, 1253 (9th Cir. 1987).
In order to show that counsel's performance fell below objectively reasonable standards, Petitioner must present more than unsupported allegations. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); compare id. ("The petition indicated exactly what the terms of the promise were; when, where, and by whom the promise had been made; and the identity of one witness to its communication. we conclude that Allison's petition should not have been summarily dismissed.") with United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) ("Where a prisoner's motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required.") (citing to Farrow v. United States, 580 F.2d 1339, 1360--61 (9th Cir.1978) (en banc)). "[T]he petition must be accompanied by a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions." Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976). Furthermore, a district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, "viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985) (citations omitted) (internal quotations omitted).
Petitioner argues he received ineffective assistance of trial counsel for the following reasons: (1) Counsel presented the Government's recommendation of settlement without explaining the consequences of a change of plea versus trial; (2) Counsel did not object to witness K.S.'s testimony that, although she only saw one of the two men that allegedly committed the robbery, she assumed the man she did not see was African American, which is Petitioner's race; (3) Counsel brought in evidence of another pending case involving cashing stolen treasury checks in which Petitioner was indicted; (4) Counsel made ...