ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 [ECF Nos. 556, 588, 593, 596, 601, 604, 606, 610]
ROGER T. BENITEZ, District Judge.
Before the Court is Petitioner Richard Charles Buchanan's motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence for distribution of methamphetamine. Buchanan seeks relief on several grounds, including ineffective assistance of counsel, violations of his constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963), and prosecutorial misconduct. For the reasons given below, Buchanan's motion is denied. The Court declines to grant a certificate of appealability.
In February 2005, a federal grand jury returned a multiple-count indictment against eleven individuals. Buchanan was charged with distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Buchanan entered a not guilty plea. He was tried by a jury and convicted on Counts 16, 17, 19, 20, and 21. The government's theory, proved at trial, was that Buchanan sold methamphetamine to government informant Sean Guerra on five occasions, either directly or through co-defendant Nancy Soria. Three of the transactions (Counts 16, 17, and 19) involved Soria. They occurred on May 28, 2004; June 3, 2004; and July 8, 2004. The remaining transactions (Counts 20 and 21) involved only Buchanan. They occurred on August 6, 2004 and August 19, 2004. Soria was charged with Buchanan on Counts 16, 17, and 19. Unlike Buchanan, Soria pled guilty.
Trial began on May 1, 2007. Buchanan was represented by attorney Barbara Donovan. The government called eight witnesses. Chief among them was Guerra. Guerra testified about making telephone calls to Buchanan or Soria to arrange drug transactions. He testified that he then purchased the methamphetamine. He testified that he paid a tax so that Buchanan would permit him to sell narcotics in the area. The government presented recordings of the "set up" calls, body wire recordings of the transactions, as well as surveillance photographs and video clips of Buchanan and Soria. The government also presented the seized methamphetamine.
Another government witness was Perry McIvor, a former detective with the San Diego Police Department. McIvor was part of a multi-agency task force investigating Buchanan. McIvor testified about recruiting Guerra as an informant, Guerra's compensation, Guerra's criminal history, and the process of using Guerra to purchase the methamphetamine.
Donovan focused on attacking Guerra's credibility. The defense rested without calling any witnesses.
Buchanan was convicted on May 7, 2007. He was sentenced to 240 months on one count and 545 months for each of the remaining counts with all sentences running concurrently; five years of supervised release; a $100 special assessment; and a fine of $6, 812.00. The sentence was also to run concurrent with a state court sentence for kidnaping and other felonies.
Buchanan filed a notice of appeal and was appointed new counsel, Gerson Simon. Pursuant to Anders v. California, 386 U.S. 738 (1967), Simon filed a brief stating there were no grounds for relief and moved to withdraw as counsel of record. Buchanan was provided an opportunity to file a pro se supplemental brief. No pro se supplemental brief was filed. On April 24, 2009, the Ninth Circuit, finding no arguable grounds for relief on direct appeal, granted the attorney's motion to withdraw and affirmed the district court's judgment. The mandate issued on May 18, 2009.
Now, Buchanan collaterally attacks his conviction on the following grounds: (1) the government suppressed evidence in violation of Brady v. Maryland ; (2) prosecutorial misconduct; and (3) ineffective assistance of trial and appellate counsel. Buchanan also asks for an evidentiary hearing. The United States filed a Response. (ECF No. 559.) Buchanan filed a Traverse. (ECF No. 589.) The United States filed a Reply to address new arguments and evidence raised in the Traverse. (ECF No. 598.) Buchanan filed a "Rebuttal" to the Reply (ECF No. 608) as well as several ancillary motions.
Buchanan brings the present motion to collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255. Section 2255 provides that a federal prisoner seeking relief from a custodial sentence "may move the court which imposed the sentence to vacate, set aside or correct the 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). To warrant relief under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). "Errors of law which might require reversal of a conviction or sentence on appeal do not necessarily provide a basis for relief under § 2255." United States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981).
Under § 2255, the court shall grant an evidentiary hearing "unless the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). When a motion "presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required." United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (evidentiary hearing unnecessary if allegations when viewed against the record are palpably incredible or patently frivolous).
I. Procedural Default
The government argues that all of Buchanan's claims are procedurally barred because Buchanan failed to raise them on direct appeal. Accordingly, the Court first considers procedural default.
Section 2255 "is not designed to provide criminal defendants multiple opportunities to challenge their sentence." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). The general rule is that a criminal defendant procedurally defaults his claims if he could have raised them on direct appeal but failed to do so. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). "The procedural-default rule is neither statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro, 538 U.S. at 504. The Supreme Court has carved out an exception for claims challenging a federal conviction based on ineffective assistance of counsel. Id. at 509. Such claims may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Id.
For other defaulted claims, federal courts may consider the merits if a petitioner can show: (1) "cause" for not raising the claim sooner and "actual prejudice" resulting from the alleged error; or (2) his "actual innocence." Ratigan, 351 F.3d at 960.
The standard for "cause and prejudice" is as follows. "Generally, to demonstrate cause' for procedural default, an appellant must show that some objective factor external to the defense' impeded his adherence to the procedural rule." United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show "prejudice, " a petitioner "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). A district court need not address both the cause and prejudice prongs if the petitioner fails to satisfy one. Id. at 168.
The standard for overcoming a procedural default via "actual innocence" is more stringent. "To invoke the actual innocence exception, [Buchanan] must show that in light of all the evidence, it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
By failing to file an appellate brief, Buchanan has defaulted on all claims except those alleging ineffective assistance of counsel. He concedes that the grounds for relief asserted in his petition "have not been presented until now." Buchanan's argument for why the Court should look past those defaults, however, is not entirely clear. In his Petition, he appears to suggest that cause-and-prejudice applies because he "suffered serious health issues while at jail" and was "overwhelmed with legal matters." In his Traverse, however, he makes vague assertions of government interference. He also claims to be actually innocent.
The Court will address whether he has made the requisite showing of cause and prejudice in the context of his individual claims. To the extent he asserts the actual innocence exception to the procedural bar, his argument clearly fails and the Court can dismiss it here at the outset. At trial, the government offered substantial evidence of Buchanan's guilt. Nothing Buchanan presents here-be it his "new" evidence, his allegations of trial defects, or his unsupported claims of perjury and planted evidence-injects sufficient doubt about the validity of his conviction to warrant setting aside the defaults. If Buchanan does find a way to get past the procedural bar, it will not be through the narrow gateway of actual innocence.
The Court now turns to the claims themselves.
II. Brady Violations
Buchanan contends that the government violated the disclosure rule of Brady v. Maryland in several respects. Specifically, he claims that the following was improperly suppressed: (1) a written report memorializing law enforcement's January 24, 2005 interview of Soria; (2) evidence relating to a state wiretap of an individual named Ernesto Torres; (3) Giglio material relating to Geurra; and (4) Henthorn material relating to McIvor.
Brady and its progeny "require the state to disclose all material evidence that could exculpate the defendant, including evidence that could be used to impeach one of the prosecution's witnesses or undermine the prosecution's case." Milke v. Ryan, 711 F.3d 998, 1003 (9th Cir. 2013). To prove a Brady violation, a petitioner must show: "(1) that the evidence at issue is favorable to him because it is exculpatory or impeaching; (2) that it was suppressed by the state, either willfully or inadvertently, and (3) that it was ...