ORDER DENYING PETITIONER'S MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 [Docket No. 481]
DEAN D. PREGERSON, District Judge.
After a jury trial, Petitioner Jamar Dewayne Greer ("Greer" or "Petitioner") was convicted of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), 846. (06-CR-00466-DDP-5 ("CR") Dkt. No. 341.) Greer timely appealed his conviction (CR Dkt. No. 401), and the Ninth Circuit affirmed the conviction (the Ninth Circuit Court of Appeals Case No. 09-50120 (the "9th CCA") Dkt. No. 51). Greer petitioned for rehearing en banc and that petition was denied. (9th CCA Dkt. Nos. 58, 59.) Greer filed a petition for certiorari with the Supreme Court and that petition was denied as well. (9th CCA Dkt. No. 62.)
On March 20, 2012, Greer filed the instant motion under 28 U.S.C. § 2255. Greer claims that (1) the indictment against him failed to allege all elements of the crime because it did not allege an effect on commerce; (2) 21 U.S.C. §§ 841, 846 were unconstitutional as applied him because "his conduct was purely local in nature and should be left to the states to punish"; (3) the court failed to conduct a sufficient inquiry into the contact between jurors and a co-defendant's family member; and (4) his attorneys provided ineffective assistance of counsel (I) by failing to request the court to inquire the jurors about contact, (ii) by failing to object when the court did not conduct the inquiry, (iii) by failing to request a mistrial, and (iv) by failing to raise these issues on appeal. (Dkt. No. 1.)
II. LEGAL STANDARD
A petitioner may move to vacate, set aside, or correct his/her sentence "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 authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). If any of these grounds exist, 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." 28 U.S.C. § 2255(b).
Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, [u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Blaylock , 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255) (emphasis and alternation in original). "The 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." United States v. Mejia-Mesa , 153 F.3d 925, 931 (9th Cir. 1998) (quoting United States v. Burrows , 872 F.2d 915, 917 (9th Cir.1989)).
A. Indictment need not allege an effect on commerce.
Elements of an offense must be charged in the indictment. Jones v. United States , 526 U.S. 227, 232 (1999). However, when Congress enacts a statute under its commerce power, "it is not constitutionally obligated to require proof beyond a reasonable doubt that each individual act in the class of activities regulated had an effect on interstate commerce." United States v. Lane , 883 F.2d 1484, 1492 (10th Cir. 1989). Indeed, contrary to Greer's assertion, an effect on commerce is not an element for the crime of possession with intent to distribute cocaine or conspiracy to distribute under 21 U.S.C. §§ 841, 846. See United States v. Magallon-Jimenez , 219 F.3d 1109, 1112 (9th Cir. 2000) ("To sustain a conviction for possession with intent to distribute cocaine, the government must prove that the defendant (1) knowingly, (2) possessed the cocaine, (3) with intent to distribute it."); United States v. Hall , 551 F.3d 257, 268 n. 13 (4th Cir. 2009) (holding that the elements of a § 846 conspiracy are "(1) an agreement between two or more persons to violate federal law relating to controlled substances; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement therein; and (4) interdependence among the conspirators"). Therefore, the indictment does not require an allegation of the effect on commerce.
B. 21 U.S.C. §§ 841, 846 are constitutional as applied to Greer.
Greer also argues that the federal government has no jurisdiction to prosecute him for his "purely local conduct." (Request for Leave to Amend 28 U.S.C. § 2255 Motion, p. 3; Rebuttal to Opposition, p. 2.) This argument is without merit. It is well established that Congress may constitutionally regulate intrastate drug activity under 21 U.S.C. §§ 801 et seq (the "Controlled Substances Act"). United States v. Visman , 919 F.2d 1390, 1393 (9th Cir. 1990). In the instant context, "Congress may regulate those wholly intrastate activities which have an effect upon interstate commerce." Id. at 1392. Congress has made explicit findings that conducts regulated by the Controlled Substances Act have "substantial and direct effect upon interstate commerce." United States v. Wacker , 72 F.3d 1453, 1475 (10th Cir. 1995) (citing 21 U.S.C. § 801(3)-(6)). Therefore, "no proof of interstate nexus is required in order to establish jurisdiction." United States v. Montes-Zarate , 552 F.2d 1330, 1331 (9th Cir. 1977).
C. The brief contact between the Jurors and a co-defendant's family member was not prejudicial.
On August 14, 2008, the government reported to the court that a contact occurred between Alternate Juror No. 1 and the mother of a co-defendant Deon Lopez ("Mrs. Lopez") after the jury had begun its deliberations. (Reporter's Partial Transcript of Proceedings on August 14, 2008 ("Tr.") at 4:3-19.) The government reported that it heard Mrs. Lopez say to Alternate Juror No. 1 that "I'm sure you'd rather be going home now" while Mrs. Lopez and Alternate Juror No. 1 were standing at an elevator outside the courtroom. (Tr. at 4:16-17, 6:2-17.) The government vigorously requested that Alternate Juror No. 1 be excused. (Tr. at 5:18-20, 7:6-20, 8:8-17.) In response to the government's concern, the court questioned the Alternate Juror. (Tr. at 9:9-12:17.) Alternate Juror No. 1 stated that, although she did not remember exactly what was said, Mrs. Lopez "made some comment about [Alternate Juror No. 1] having to stay" while she was waiting for the elevator. (Tr. at 9:9-25.) Upon the court's further inquiry, the Alternate Juror revealed that Mrs. Lopez had said something along the lines of "can you guess whose mothers we are" to her and Jurors Nos. 5 and 6 in the lunchroom on an earlier date. (Tr. ...