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United States v. Davis

United States District Court, E.D. California

July 2, 2014

UNITED STATES OF AMERICA, Petitioner,
v.
D'ANGELO DOMINICO DAVIS, Respondent.

ORDER AND INDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

Movant is a federal prisoner proceeding through counsel with an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant was convicted of armed credit union and bank robberies with the use of a firearm during and in relation to those robberies. He now seeks post-conviction relief on the following grounds: (1) he is innocent of the charges upon which he was convicted; (2) his counsel rendered ineffective assistance; (3) his conviction is the result of prosecutorial misconduct; and (4) his sentence violates his federal constitutional rights to due process and "equal treatment." Upon careful consideration of the record and the applicable law, the undersigned recommends that movant's § 2255 motion be denied.

I. Procedural Background

Movant was charged in a second superseding indictment filed on August 9, 2000 with: (1) three counts of credit union robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) (Counts 1 (Golden One Credit Union), 3 (First Federal Credit Union), and 7 (Schools Federal Credit Union)); (2) one count of bank robbery, in violation of 18 U.S.C. §§2113(a) and (d) (count 5 (U.S. Bank)); (3) one count of attempted armed credit union robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) (Count 9); and (4) five counts of using or carrying a firearm in connection with all of the crimes listed above, in violation of 18 U.S.C. § 924(c)(1) (Counts 2, 4, 6, 8, and 10). (ECF No. 29.) Jury trial commenced on September 3, 2002. (ECF No. 112.) At the conclusion of the evidence, the jury convicted movant on Counts 1 through 8 and acquitted him on Counts 9 and 10 of the second superseding indictment. (ECF No. 140.)

On January 13, 2003, the District Court sentenced movant to concurrent 188 month sentences on Counts 1, 3, 5, and 7; 60 months on Count 2; and 240 months each on Counts 4, 6, and 8, to run consecutively to each other and to counts 1, 3, 5, and 7, for a total aggregate term of 968 months in the custody of the Bureau of Prisons. (ECF No. 161.)

On appeal of movant's judgment of conviction, the Ninth Circuit Court of Appeals held that the evidence introduced at his trial was insufficient to support movant's conviction on Count 4 for using or carrying a firearm in relation to the First Federal Credit Union robbery. The Court of Appeals remanded the case to the District Court with instructions to modify the judgment by striking the sentence and conviction as to Count 4 and to determine, pursuant to the decision in United States v. Ameline , 409 F.3d 1073, 1085 (9th Cir. 2005), whether the District Judge would have imposed the same sentence had he been aware that the U.S. Sentencing Guidelines were advisory rather than mandatory. United States v. Davis, No. 03-10028, 138 Fed.Appx. 914 (9th Cir. July 5, 2005).

On August 14, 2006, the District Court struck movant's conviction and sentence as to count four and declared that it would not have imposed a different sentence on movant had it known that the Sentencing Guidelines were advisory. The court resentenced movant to 300 months imprisonment on each of Counts 1, 3, 5, and 7, with the sentences on Counts 1, 3, and 5 to be served concurrently to each other. As to count 7, the court sentenced movant to 273 months in the custody of the Bureau of Prisons with that sentence to run concurrently with the sentences imposed on Counts 1, 3, and 5, and 27 months to run consecutively to Counts 1, 3, and 5, for a total term of imprisonment on Counts 1, 3, 5, and 7 of 327 months. The court also sentenced movant to 60 months imprisonment on Count 2 and 240 months imprisonment on each of Counts 6 and 8, with those sentences to run consecutively to each other, for a total term of imprisonment on Counts 2, 6, and 8 of 540 months. Thus, movant was resentenced to a total aggregate term of imprisonment of 867 months in the custody of the Bureau of Prisons. (ECF No. 211.)

Movant again appealed following his re-sentencing after remand. (ECF No. 210.) On appeal, the Ninth Circuit vacated the District Court's sentence of 867 months imprisonment and directed the District Court to reimpose movant's original sentence, but not to impose any sentence on the dismissed Count 4. (ECF No. 224.) On April 13, 2009, pursuant to the mandate of the Court of Appeals, the District Court resentenced movant to 188 months imprisonment on each of Counts 1, 3, 5, and 7, with those sentences to be served concurrently to each other, for a total term of 188 months on those counts. The District Court also sentenced movant to 60 months imprisonment on Count 2 and 240 months imprisonment on each of Counts 6 and 8, with those sentences to be served consecutively to each other, for a total term of 540 months in prison on Counts 2, 6, and 8. The District Court ordered the sentence imposed on counts 2, 6, and 8 to be served consecutively to the sentences imposed with respect to Counts 1, 3, 5, and 7. As a result, movant received a total aggregate sentence of 728 months in the custody of the Bureau of Prisons. (ECF No. 245.)

II. Factual Background

The following trial testimony and other evidence submitted by movant in support of his pending § 2255 motion provides the following factual background to his claims now before this court.

A. Testimony of William Hernandez

William Hernandez provided the following testimony for the defense at movant's trial. On December 7, 1995, Hernandez was working at a restaurant located next door to the Golden One Credit Union in Sacramento. ((Reporter's Transcript on Appeal (RT) at 1590.) On that day he observed a burgundy van driving around the parking lot. ( Id. at 1591.) He was blowing leaves and dirt off the parking lot and was trying to work and keep his eyes on the driver of the van at the same time. (Id.) He watched the driver of the van for about 15 minutes. (Id.) Part of the driver's face was covered with a hat. ( Id. at 1598.) When the van was at the corner of the parking lot between the restaurant and the credit union, he saw two people get into the van which then left the parking lot. ( Id. at 1591-92.) Approximately 15 minutes later, several police officers arrived and asked Hernandez if he had seen anyone at the bank. ( Id. at 1593.) He told the police officers that he could identify the driver of the van he had seen. ( Id. at 1593-94.) However, when he was asked at movant's trial whether he believed he had gotten a good enough look at the van's driver to identify him, Hernandez testified, "I was very nervous. I can't tell." (Id.)

On July 21, 1997, Hernandez was shown a photo lineup that included a photograph of movant Davis. ( Id. at 1598.) He was not able to identify anyone in that lineup as the driver of the van. (Id.) Several weeks later, on August 8, 1997, Hernandez was shown another photographic lineup. This time, he identified a person who looked to him like the driver of the van. ( Id. at 1594.) When he first looked at this second lineup, he "shook [his] head saying no, and then [he] pointed to number three saying number three looked like him; but [he] thought the individual driving the van was younger." ( Id. at 1597.) Hernandez informed the police officer who was present at the lineup that "he looks like him, but I wasn't sure." ( Id. at 1595.) The person Mr. Hernandez picked out of the lineup was Terry Amons.[1]

Mr. Hernandez testified at movant's trial that he couldn't remember exact details of the photo lineup he had viewed because "it's very hard for me - seven years. I can't remember." ( Id. at 1595.) When asked whether "as you sit here today reflecting back over six years ago, almost seven years ago could you identify the person that was driving the van, " Mr. Hernandez stated, "I don't think so." ( Id. at 1597.)

B. Testimony of Marcel Swift

Marcel Swift was called as a witness by the prosecution at movant's trial and testified that he had participated in the robberies of the Golden One Federal Credit Union on December 7, 1995, and the First Federal Credit Union on December 12, 1995, along with movant, Jason Smith, and Andre Robinson. ( Id. at 1509-10.) Swift also testified that he participated in the robbery of the U.S. Bank on February 20, 1996, along with movant, Erik Chukes, and Andre Robinson. ( Id. at 1510.)

Swift testified that prior to the robbery of the Golden One Credit Union, he met with movant, Andre Robinson, and Jason Smith at Andre Robinson's apartment to discuss "what we was going to do, who was going to do what...." ( Id. at 1511.) He testified that both he and movant brought a MAC-11[2] firearm to that meeting, presumably for use in that robbery. ( Id. at 1511-12.)

In his testimony Mr. Swift explained that a planning meeting was also held prior to the robbery of the First Federal Credit Union. This meeting was attended by Jason Smith, Andre Robinson, and movant. (Id.at 1516.) Swift testified that both he and Jason Smith brought guns to the pre-meeting and that "everybody knew" that guns would be used to facilitate that robbery. ( Id. at 1516-17.) Swift identified movant's role in that robbery as driving the getaway car (a stolen van). ( Id. at 1515-16.) Swift also testified that both he and Jason Smith were armed during the First Federal Credit Union robbery. ( Id. at 1515, 1517.) According to Swift, after the robbery of the First Federal Credit Union the stolen money was divided among all the participants. ( Id. at 1518-19.)

Mr. Swift also testified that movant entered the U.S. Bank with him and participated in the robbery of that bank. ( Id. at 1519.) According to Swift, movant was carrying either a MAC-11 or a 380 firearm and Swift was armed with the other. ( Id. at 1520.) Swift stated that Erik Chukes drove the getaway van in connection with that robbery. ( Id. at 1521.) Mr. Swift had originally told authorities that Terry Amons had committed the robberies instead of movant. ( Id. at 1542, 1543, 1546.) However, Swift testified at movant's trial that he had been lying during those previous interviews because he was afraid for the safety of his family if he implicated movant in the robberies. ( Id. at 1524-25.)

C. Testimony of Andre Robinson

Andre Robinson was called as a witness by the prosecution at movant's trial and testified as follows. On December 7, 1995, Robinson participated in the robbery of the Golden One Credit Union with Jason Smith, Marcel Swift, and movant. ( Id. at 505-13.) Movant was the driver of the stolen getaway van. ( Id. at 508.) Although guns were involved in the robbery, Robinson did not remember who brought them or exactly what type of guns they were. ( Id. at 509.) One of the guns used in connection with that robbery was a semiautomatic handgun. (Id.) After the robbery, all of the participants counted and divided the stolen money.

Robinson also participated in the robbery of the First Federal Credit union on December 12, 1995, with movant, Jason Smith, and Marcel Swift. ( Id. at 513-19.) According to Robinson, a semi-automatic handgun and a machine gun, the latter being either a MAC-11 or an Uzi, were used in that robbery. (Id.at 515.) Movant drove the stolen getaway van, but did not enter the credit union. ( Id. at 516-17.) After the robbery, all of the participants, including movant, drove back to Robinson's apartment, counted the stolen money, and distributed it amongst themselves, with movant, Smith and Swift receiving the bulk of the robbery proceeds. ( Id. at 518-19.)

Mr. Robinson participated in the robbery of the U.S. Bank on February 20, 1996, along with movant, Marcel Swift and Erik Chukes. ( Id. at 519-29.) Robinson saw movant holding the machine gun (either a MAC-11 or an Uzi) firearm just prior to that robbery and Swift holding the semi-automatic handgun. ( Id. at 526.) Swift and movant were the ones who entered the bank in connection with this robbery. ( Id. at 527.) After the robbery, the participants divided the stolen money, with movant and Marcel Swift getting the bulk of it. ( Id. at 528.)

Finally, Robinson participated in the robbery of the Schools Federal Credit Union on July 30, 1996, along with movant, Martin Connors, and a man named Wayne. ( Id. at 530, 539-44.) At the pre-meeting for this robbery, the same two guns were present and the plan was for Connors and movant to enter the bank and carry out the robbery with the other two serving as drivers... ( Id. at 5541-42.) After the robbery, the participants divided the money, with movant getting the bulk of the proceeds. ( Id. at 544.)

Robinson testified that he did not implicate movant in the bank and credit union robberies the first time he was contacted by federal law enforcement authorities because he was afraid for his safety and the safety of his family if he did so. (RT at 502-04.) Instead, he told authorities that Terry Amons committed the robberies in place of movant. ( Id. at 566-67.)

D. Testimony of Antonio Servidio

Antonio Servidio was called as a witness for the prosecution at movant's trial and testified to the following. Servidio was in the business of purchasing firearms illegally through a "straw purchaser" or "middle man" and then selling those firearms. (RT at 465-66.) In 1995, he bought a gun for movant Davis after being informed by Twan Landers (movant's cousin) that movant wanted a firearm. ( Id. at 467-68.) Landers informed Servidio that movant wanted a "MAC-12." ( Id. at 468.)[3] In response to this information, Servidio bought a MAC-12 through a straw purchaser and took it to Landers' house, where movant, Landers, and several others were present. ( Id. at 470.) According to Servidio, he negotiated the price of the MAC-12 and sold it to movant for $400 or $500 in cash. ( Id. at 470-71.) Prior to this transaction, Servidio had seen movant Davis in the neighborhood between fifty and one hundred times. ( Id. at 471.) Servidio tried to sell movant other guns as well, but he was not interested in buying them. (Id.)

When Mr. Servidio was first interviewed by law enforcement officers about his gun sales, he did not mention movant Davis as a person to whom he had sold an illegal firearm. ( Id. at 477-78.) During his second interview with law enforcement, however, he brought up movant's name because, by that time, he had remembered other gun transactions, including the one involving movant. ( Id. at 478-79, 1179-80.)

E. Testimony of Erik Chukes

Erik Chukes was called as a witness for the prosecution at movant's trial. His testimony proceeded as follows. Chukes testified that he had robbed the U.S. Bank. ( Id. at 1210.) On the morning of that robbery, he attended a meeting with Marcel Swift, Andre Robinson, and a fourth unnamed person at Robinson's apartment. ( Id. at 1210-11.) When asked whether movant was that fourth person, Chukes stated, "no." ( Id. at 1212.) At this point in Chukes' testimony, the trial judge allowed the Assistant U.S. Attorney to treat Mr. Chukes as a hostile witness and caused the court clerk to re-administer the oath to the witness. ( Id. at 1213.) When Chukes refused to identify movant as the fourth person with whom he had committed the robbery of U.S. Bank, the Assistant U.S. Attorney asked him a series of questions regarding an earlier statement Chukes had made to an FBI agent that there were only three people involved in the robbery of the U.S. Bank. ( Id. at 1214-15.) Chukes admitted that this was a lie, and that four people were involved in that robbery. ( Id. at 1215.) The prosecutor asked Mr. Chukes whether he refused to identify movant as a participant in the U.S. Bank robbery because he was afraid of him. (Id.) Chukes denied that he was afraid of movant. (Id.) The prosecutor also asked Chukes to agree that he had told him and the FBI agent during their previous meeting that there were four people involved in the robbery of U.S. Bank but that he was afraid to identify movant as the fourth person because he was in fear for his life. ( Id. at 1219, 1224.) Chukes denied making such a statement. (Id.) When asked why he would have lied in his previous interview with the FBI agent about there being only three participants in the robbery of U.S. Bank if he weren't afraid of movant, Chukes responded:

A. Because at that time you kept insisting that Davis was a part of this case, and if I didn't tell you what you wanted to know you was going to give me 35 years in trial [sic]. That's what you told me from day one.
Q. (By the Assistant U.S. Attorney). Isn't it a fact that no one ever brought Mr. Davis' name up, not myself, not the agent? No one brought up Mr. Davis' name; isn't that right?
A. No. It's a fact that when I came to Sacramento and I had my first attorney, every time my attorney came to see me he had a cooperation deal from you - from you saying that he knows that Davis is a part of this case. So just save yourself and you can go home in 2002.
Q. Mr. Chukes, let me stop you right there. This first interview you hadn't even met me yet. This interview occurred on November 2nd, 1999. You hadn't even met me; isn't that a fact?
A. I hadn't talked to you personally, but all the messages from my first attorney, all the cooperation deals you kept sending through him to me. And I told him, "Don't keep coming at me trying to cooperate with the Government because I'm not going to lie on somebody that's not a part of my case.

(Id. at 1216.) Mr. Chukes was thereafter dismissed from the witness stand without being cross-examined by defense counsel. ( Id. at 1227-28.)

F. Testimony of Martin Connors

Martin Connors was also called as a prosecution witness at movant's trial. On direct examination, Connors stated that he participated in the robbery of the Schools Federal Credit Union with movant, Andre Robinson, and Roy Howard. ( Id. at 1039.) He also testified that movant brought a MAC-12 which was used in the robbery and that he and movant entered the credit union with guns and threatened the employees. ( Id. at 1042-43.) Connors testified that he had entered into a plea agreement with the government wherein, in exchange for a recommended sentence of 180 months in custody and a promise not to charge him with four other bank/credit union robberies, he would plead guilty to robbing a credit union in Napa, California, in 1995. ( Id. at 1044-46.)

At the conclusion of Connors' testimony, the defense was granted a continuance before conducting cross-examination. ( Id. at 1057-58.) When Connors returned to the witness stand after a weekend recess, he recanted all of his earlier trial testimony and his prior statements to the government. He testified on cross-examination that the government had put "a lot of pressure" on him and that he "just said whatever I had to say." ( Id. at 1476.) He further testified that "at this point in time now I can't lie on Mr. Davis. Mr. Davis has done nothing to me." (Id.) Connors testified that he lied about participating in the Sacramento robberies and about robbing banks in Napa and Vallejo. ( Id. at 1486, 1477-78, 1482-87.) He stated that he lied to law enforcement agents and "just said whatever they wanted to hear" so that he could get a good deal. ( Id. at 1476-77.)

After this testimony by Connor on cross-examination, movant's trial counsel moved for a mistrial. ( Id. at 1487.) The trial court denied the motion for mistrial. (Id.) Mr. Connors was then excused from the witness stand. The prosecutor informed the trial court that the FBI would investigate "every aspect of the witness tampering in this case." ( Id. at 1488.) The trial judge observed that Connors had "recanted his testimony, even his testimony with respect to his own plea of guilty, which is difficult to understand if not totally incredible, and I find it incredible." ( Id. at 1490.) Mr. Connors' counsel, who was in the courtroom during his client's testimony, informed the trial judge that he suspected his client had been intimidated over the weekend and had recanted his testimony for that reason. ( Id. at 1500-01.) When Mr. Connors again resumed the witness stand, he informed the trial judge that he would not answer any more questions. ( Id. at 1503-04.) The trial court found Connors in contempt of court and ordered him into custody. ( Id. at 1505.)

In his closing argument, the Assistant U.S. Attorney argued that Connors had told the truth on direct examination but "on cross-examination something caused him to change his mind." ( Id. at 1711-12.) In his rebuttal argument, the prosecutor contended that Connors had breached his cooperation agreement with the government because he had "lied on cross-examination." ( Id. at 1778.)

G. Affidavit of Latione ("Twan") Landers

In support of the claims presented in the § 2255 motion pending before the court, movant has submitted the declaration of Latione Landers, dated May 22, 2010. (ECF No. 319-2.) Therein, Mr. Landers declares that he was present in the courtroom during the trial testimony of Antonio Servidio, related above, wherein Servidio stated that he sold a firearm to movant at Landers' house. (Id.) Landers states in his declaration that "There were never any sales of guns at my house. Servidio tried to sell the guns but I never bought any and D'Angelo Davis was never there." (Id.) Landers also declares that he told movant's mother and sister as they were leaving the courthouse on the day of Servidio's testimony that Servidio was "lying." (Id.) Finally, Landers declares that he was never contacted by an attorney or investigator about this matter. (Id.)

H. Declaration of Jason Ellis Smith

In a declaration filed with the court by movant on June 3, 2013, Jason Ellis Smith declares as follows:

1. I pled guilty to having committed the armed robbery of the Golden One Credit Union, in Sacramento, California, that happened on December 7, 1995.
2. D'Angelo Davis did not provide the weapons used in the armed robbery of the Golden One Credit Union, in Sacramento, California, that happened on December 7, 1995.

(ECF No. 319-1.)[4]

I. Other Evidence Against Movant

DNA analysis reflected that movant was the source of biological material contained on clothing left in the stolen getaway car after each robbery except the robbery of the First Federal Credit Union. (ECF No. 317 at 12-13). Respondent represents, and movant does not deny, that the prosecution also introduced into evidence at movant's trial a letter written by movant to the wife of Jason Smith requesting that she ask Jason Smith to absolve movant of participation in the bank robberies. (ECF No. 317 at 13).

III. Applicable Law

A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the court which imposed sentence. United States v. Monreal , 301 F.3d 1127, 1130 (9th Cir. 2002); Tripati v. Henman , 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. Davis v. United States , 417 U.S. 333, 344-45 (1974); United States v. Barron , 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson , 507 U.S. 619, 637 (1993); see also United States v. Montalvo , 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.") Relief is warranted only where a petitioner has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Davis , 417 U.S. at 346. See also United States v. Gianelli , 543 F.3d 1178, 1184 (9th Cir. 2008).

Under § 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) (alteration in original) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen , 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotation marks omitted). See also United States v. Withers , 638 F.3d 1055, 1062-63 (9th Cir. 2011); United States v. Leonti , 326 F.3d 1111, 1116 (9th Cir. 2003). To warrant a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Withers , 638 F.3d at 1062; McMullen , 98 F.3d at 1159. Mere conclusory assertions in a § 2255 motion are insufficient, without more, to require a hearing. United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir.1980).

IV. Movant's Claims

A. Overview

In a preface to his four enumerated claims, movant included in his successful motion to amend a section entitled "overview." (ECF No. 303-2 at 6.) Therein, movant explained that he was unable to obtain his trial counsel's records because those records were "destroyed." (Id.) Movant states that the destruction of these records "caused significant difficulty" in evaluating the claims for relief to be included in the motion now pending before this court. (Id.) Movant further explained that after he filed his § 2255 motion, the prosecutor assisted his current counsel in obtaining some of the lost records and also provided him access to the trial exhibits. (Id.) However, according to movant, "an on-going dispute" about full access to other relevant records still exists between the parties. (Id.)

Movant asserts that full access to all relevant information would allow him to "potentially" provide this court with evidence in support of the claims for relief now set forth in the instant § 2255 motion. ( Id. at 6-7.) He argues that because his trial counsel's file has been destroyed, an evidentiary hearing should be held at which he and his trial counsel would testify, along with witnesses Jason Smith, Marcel Swift, Antonio Servidio, and Latione Landers. ( Id. at 7; ECF No. 319 at 7.) Movant provides a list of general subject areas he would like authority to "subpoena records and witnesses" regarding. (ECF No. 303-2 at 20.) Those areas include: (1) "Phone records, bank records and other records that keep track of the exact date and time of a particular transaction, " in order to "dispute the testimony presented, and to support the defense claim that Mr. Davis is actually innocent;" (2) records that might demonstrate whether "witnesses against Mr. Davis" had a motive to falsely implicate him in these crimes "from the prior juvenile incident or from some other long-running grudge;" and (3) records that might demonstrate "trial counsel's reasoning for his tactical and strategical decisions." ( Id. at 20-21.)

B. Claim of Actual Innocence

In his first ground for relief, movant claims that he is "actually innocent" of all of the crimes for which he has been convicted. Movant bases this claim on purportedly new evidence in the form of the affidavits of Latione Landers and Jason Ellis Smith and on movant's analysis of weaknesses in the trial testimony of the witnesses described above. (ECF No. 303-2 at 7-8.) Movant argues, in general, that his trial proceedings were "flawed" because the trial testimony of some of the prosecution witnesses, such as Martin Connors and Eric Chukes, was unreliable, contradictory, and possibly perjurious. ( Id. at 11.) He notes that only Andre Robinson testified with regard to all of the counts brought against him. (Id.) Movant also points out that prosecution witness Servidio did not mention movant's name when he was first asked by government agents about his gun sales, but revealed only later that he sold the same type of firearm to movant that was later used in the Golden One and other bank robberies. ( Id. at 17-18; RT at 478, 467, 494.) Movant argues that the testimony of the prosecution witnesses was not credible because they received "benefits, " or had other incentives to testify against him. (ECF No. 303-2 at 12.)

Movant claims that the prosecution's theory of the case against him was that Antonio Servidio sold a MAC firearm to movant at Mr. Landers' home, which movant thereafter used in all of the charged bank robberies. (Id.) Movant points to the Assistant U.S. Attorney's closing argument to the jury that the sale of a MAC firearm to movant was strong circumstantial evidence that movant participated in all of the robberies, including the robbery of Golden One Credit Union. ( Id. at 16-17.)[5] Movant argues that "the government built a substantial portion of its case around the sale of the weapon by Servidio in order to directly connect Mr. Davis to the weapons allegations and his alleged involvement in the crimes." (ECF No. 319 at 27.) Movant contends that Landers' declaration, described above, refutes Servidio's trial testimony that movant bought a MAC-12 firearm at Landers' house. (ECF No. 303-2 at 13, 14.) In essence, movant argues that the affidavit of Latoine Landers proves that movant is innocent of the charges involving at least the Golden One Credit Union because it demonstrates he did not purchase a MAC firearm, as Servidio testified to at trial, and that therefore movant could not have brought such a weapon to the planning meeting(s) or used such a weapon in the bank robberies.

Movant informs the court that he attempted to obtain the state and federal records regarding sales of the weapon Mr. Servidio allegedly sold to movant but was unable to do so, even after he requested them from the prosecution. ( Id. at 19.) Movant argues that the testimony at his trial demonstrated that the ATF records of gun purchases and sales were in some instances inaccurate, appeared to have been falsified by the gun dealers, and did not necessarily support the government's theory that he bought a MAC machine pistol on a specific date, as testified by Servidio. ( Id. at 18-19; see also RT at 1278-95.) Movant also observes that "it seems odd" that the prosecution relied at trial on records maintained by the state instead of federal records to establish when the weapons used in the robberies were made and shipped to the gun dealer. (ECF No. 303-2 at 19.)

In another argument in support of his claim of actual innocence, movant informs the court that he "believes he saw" a photograph of the Golden One Credit Union robbery, in which one of the participants was carrying a simple handgun. ( Id. at 12, 19.) Movant states that if such a photograph exists, it would impeach Marcel Swift's trial testimony that the robbers used MAC firearms during the robberies. ( Id. at 12.) Movant explains that he has not been able to locate this photograph, in part because his trial counsel's file was destroyed. ( Id. at 19.) Movant states that his current counsel

obtained photographs and video of the Golden One robbery from the government; however, he was unable to reproduce the same photographs from the video as those photographs provided by the government. Counsel took the video to a local media firm and was informed that the video provided by the government was not copied correctly and that the video was compressed and that was why it was impossible to produce the same image from the same time stamp position in the video. Counsel sought discovery of the original tape but that motion was denied.

(Id.) Movant argues that this court should order an evidentiary hearing, at which the government should be directed to produce "the bank video." (ECF No. 319 at 32.)

Movant specifies how his general arguments, described above, affect each of the charges against him. He argues that the declarations of Jason Smith and Latione Landers are relevant to show his innocence on Counts 1 and 2 involving the Golden One Credit Union robbery, and in particular the "gun allegation." ((ECF No. 319 at 8, 9, 10, 16, 25, 33.) He argues that these declarations refute the government's theory that movant purchased from Servidio the MAC firearm that was later used in the robbery of Golden One. Movant argues that Landers' declaration shows that movant "was not even present at the meeting when Antonio Servidio supposedly sold the gun which was a cornerstone of the government's allegations." ( Id. at 19.) He further argues that Smith's declaration demonstrates that Swift's trial testimony that movant brought a MAC-12 to the Golden One planning meeting was false. ( Id. at 14.)

Movant notes that Andre Robinson "did not specifically testify that Mr. Davis provided any weapons for the Golden One robbery" but, rather, testified that he did not remember who provided the guns for the robbery or exactly what type of guns they were. ( Id. at 34.) Movant also notes that Mr. Hernandez identified Terry Amons as the driver of the getaway van from the photographic lineup and, at trial, was unable to identify movant as the driver of the van. He argues this contradicts the testimony of government witnesses who testified at trial that movant was involved in those robberies. ( Id. at 9.) Finally, movant argues that if he could find the photograph in which one of the participants in the Golden One robbery was depicted holding a handgun, it would contradict Swift's trial testimony that a MAC rifle was used in that robbery. ( Id. at 32, 34.) Movant contends that, "at the very least, he prays this court will reverse the gun allegations associated with the Golden One robbery since both Mr. Landers' and Mr. Smith's along with Mr. Robinson's and Mr. Hernandez' testimony supports a finding that he is not guilty of that charge." ( Id. at 32.)

With regard to Counts 5 and 6 involving the robbery of U.S. Bank, movant notes that witness Erik Chukes refused to implicate movant in that crime, and denied that he had previously told the prosecutor and government agents that movant was a perpetrator of that robbery. ( Id. at 12.) With regard to Counts 7 and 8 involving the robbery of Schools Credit Union, movant notes that witness Connors recanted his testimony given on direct examination that movant was one of the participants in that robbery. ( Id. at 13.) Movant argues that these weaknesses in the trial testimony of witnesses Chukes and Connors demonstrates that movant is in fact innocent of the crimes charged in Counts 5, 6, 7, and 8 of the indictment.

With regard to his convictions on all of the counts against him generally, movant argues that Servidio's testimony affected all the counts and his testimony was impeached during the trial and Mr. Landers' declaration provides proof that Servidio committed perjury." ( Id. at 8.) Movant argues that all of his convictions involved perjured testimony and coercion of witnesses by the government. ( Id. at 14.) Specifically, he argues that the trial testimony of Chukes and Connors demonstrates that the trial witnesses "were under a great deal of pressure from the government to accuse Mr. Davis of being involved in these offenses." (Id.) With regard to the prosecution's DNA evidence, movant contends that his casual contacts with the participants in the robberies, all of whom grew up in the same neighborhood, could have explained an innocent transfer of his DNA to the clothing of those who actually participated in those robberies. ( Id. at 15.) Movant states that "the defense repeatedly was concerned about the DNA evidence being contaminated." (Id.)

Movant summarizes his claim of actual innocence as follows: "Mr. Davis has cited to credible evidence in support of his claims which includes Mr. Smith's declaration and Andre Robinson's lack of testifying that Mr. Davis provided any weapons for the Golden One robbery in combination with the declaration from Mr. Landers which impeaches the government theory that Servidio sold the gun used in that robbery." ( Id. at 16.) Movant concludes:

Since the court can consider the number of inconsistent statements by the government witnesses that originally excluded Mr. Davis as participating, plus the two witnesses who changed their testimony and testified that Mr. Davis did not participate, this evidence provides significant support for the court to overturn the other counts based on Mr. Davis' actual innocence claims regarding the other counts.
Mr. Landers' declaration provides additional support since it demonstrates that another key government witness did not testify truthfully supports a finding that the verdict should be set aside and at a retrial all this evidence can be considered by the jury.

(Id. at 17.) Movant argues, "the plain fact of the matter is that Mr. Davis did not buy any weapons and the government obtained a conviction with perjured testimony." ( Id. at 27.)

In his answer, respondent argues that movant's claim of innocence is meritless. Respondent notes that the claim is based largely on the declaration of movant's own cousin Landers and that the Landers declaration is "untrustworthy, unreliable, and does not constitute direct evidence of the defendant's innocence on the counts of conviction." (ECF No. 317 at 6.) Respondent notes that Landers' 2010 declaration is dated eight years after movant's trial took place in 2002, even though Landers apparently knew all of the information contained in that declaration right after Servidio testified. ( Id. at 15-16.) Respondent contends that the Landers declaration "does not provide for any timeframe, specific make of firearm, or any other detailed facts that would support a finding of reliability and trustworthiness." ( Id. at 17.) He also argues that Landers' declaration does not have any bearing on whether movant is guilty of the robberies for which he was convicted, but is relevant only to the issue of whether Servidio sold a gun to Landers and movant at Landers' residence. (Id.)

Respondent further argues that Landers' declaration is not reliable because he has a motive to provide false testimony to benefit movant, his cousin. ( Id. at 17-18.) Respondent observes that the Landers declaration does not refute other evidence introduced at trial against movant, including the testimony of witnesses Robinson and Swift, the DNA evidence, and movant's own letter to Jason Smith's wife in which movant solicited Smith to exonerate movant in the bank robberies, as mentioned above. Respondent argues that movant's reliance on the trial testimony of witnesses Hernandez, Chukes, and Connors is insufficient to demonstrate that he is actually innocent of the robberies. (Id.) Respondent also contends that because the District Court and Ninth Circuit Court of Appeals found that sufficient evidence introduced at trial supported movant's convictions, "the doctrine of law of the case precludes Davis from re-litigating sufficiency of the evidence." ( Id. at 6.)

The undersigned first notes that movant did not raise a claim of actual innocence on direct appeal. The United States Supreme Court has held, in the context of a § 2255 motion, that "where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either "cause" and actual "prejudice"... or that he is "actually innocent." Bousley v. United States , 523 U.S. 614, 622 (1998). See also United States v. Avery , 719 F.3d 1080, 1083 (9th Cir. 2013). This is because "habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.'" Bousley , 523 U.S. at 621 (citation omitted). See also United States v. Addonizio , 442 U.S. 178, 184 (1979) ("When Congress enacted § 2255 in 1948, ... it did not purport to modify the basic distinction between direct review and collateral review."); United States v. Berry , 624 F.3d 1031, 1038 (9th Cir. 2010) (The Supreme Court "has cautioned that § 2255 may not be used as a chance at a second appeal."). Accordingly, "most claims are procedurally defaulted by both federal and state prisoners in habeas proceedings when not raised on direct appeal, absent a showing of cause and prejudice or actual innocence." United States v. Braswell , 501 F.3d 1147, 1150 n.1 (9th Cir. 2007). Under this standard, the term "actual innocence" means "factual innocence, not mere legal insufficiency." Bousley , 523 U.S. at 623 (1998). See also Avery , 719 F.3d at 1083.[6]

Movant argues that he should be allowed to pass through the "Schlup gateway" permitting his actual innocence claims to be heard in this § 2255 motion. (ECF N0. 303-2 at 7-11.) In Schlup v. Delo , 513 U.S. 298 (1995), the United States Supreme Court held that a federal habeas petitioner "can overcome a procedural default, including a failure to comply with the statute of limitations, by demonstrating actual innocence of the crime underlying his conviction." Vosgien v. Persson , 742 F.3d 1131, 1134 (9th Cir. 2014) (citing Schlup , 513 U.S. at 313-15.) See also McQuiggin v. Perkins, ___ U.S. ___, ___ , 133 S.Ct. 1924, 1931-34 (2013) (a plea of actual innocence can overcome the one-year statute of limitations for filing a federal habeas petition under the AEDPA). A claim of actual innocence under Schlup is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup , 513 U.S. at 315 (quoting Herrera v. Collins , 506 U.S. 390, 404 (). See also Stewart v. Cate, ___ F.3d ___ , 2014 WL 1707033, at *6 (9th Cir. May 1, 2014) (same).[7]

Respondent argues that the Schlup line of cases is not applicable here because movant is not asserting any untimely claims or claims subject to a procedural default. (ECF No. 324 at 1-2.) In a supplemental filing with the court dated July 1, 2013, however, movant claims that he is raising "a freestanding claim of actual innocence which is a substantive claim based on the declarations of Mr. Landers and Mr. Smith, and the corroborating testimony of other witnesses as noted in the pleadings." (ECF No. 323 at 2.)

This court will assume that movant's claim of actual innocence, based in part on allegedly newly discovered evidence, is cognizable in these § 2255 proceedings notwithstanding his failure to raise such a claim on appeal. Accordingly, the undersigned will address movant's purported actual innocence on the merits. In this regard, the court will construe movant's arguments as supporting a "freestanding" claim of actual innocence - i.e., that, despite the lack of any constitutional error at his trial, his incarceration is unconstitutional due to his actual innocence. The court will address movant's "freestanding" claim of actual innocence below.

1. Applicable Legal Standards

The Supreme Court has, on several occasions, assumed, without expressly deciding, that a "freestanding" claim of actual innocence is cognizable on federal habeas review. See House v. Bell , 547 U.S. 518, 554-55 (2006); Herrera v. Collins , 506 U.S. 390, 417 (1993). The Ninth Circuit has also assumed that freestanding actual innocence claims are cognizable on collateral attack. See e.g., Berry , 624 F.3d at 1038 n. 5 ("This circuit recognizes a claim of actual innocence that is cognizable under § 2255."); Carriger v. Stewart , 132 F.3d 463, 476-77 (9th Cir.1997) (en banc). However, the standard for establishing that one is entitled to relief on such a claim is "extraordinarily high.'" Carriger , 132 F.3d at 476 (quoting Herrera , 506 U.S. at 417). In order to prevail, a petitioner "must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id . See also Cooper v. Brown , 510 F.3d 870, 923 (9th Cir. 2007) ("Under these standards, a petitioner must affirmatively prove that he is probably innocent."); Boyde v. Brown , 404 F.3d 1159, 1168 (9th Cir. 2005) (same).

Keeping in mind the demanding showing required and for the reasons set forth below, the undersigned finds that movant has failed to show that he is probably innocent of the crimes for which he was convicted and is therefore not entitled to relief on his freestanding claim of actual innocence.

2. Movant's Conviction for Use of a Firearm during the Golden One Robbery

As noted above, movant argues that, "at the very least, " he is entitled to relief on his claim involving his use of a firearm during the Golden One robbery. (ECF No. 319 at 32.) He argues that the affidavits of Landers and Smith submitted in support of his § 2255 motion demonstrate that he is innocent of that charge.

Movant was convicted of violating 18 U.S.C. § 924(c) in connection with the Golden One robbery, under a theory of aiding and abetting. Section 924(c) provides additional mandatory consecutive penalties for using a firearm during "any crime of violence or drug trafficking crime... for which he may be prosecuted in a court of the United States." In order to be found guilty of aiding and abetting under § 924(c), "the defendant must have directly facilitated or encouraged the use' of the firearm" and not simply be aware that a firearm was being used. United States v. Bancalari , 110 F.3d 1425, 1429-30 (9th Cir. 1997). If the defendant "knew before the robberies that a gun would be used, " as opposed to "mere knowledge at the scene" that a firearm was being used, this foreknowledge "may support a conviction for aiding and abetting." United States v. Nelson , 137 F.3d 1094, 1103 (9th Cir. 1998) (citing United States v. Salazar , 66 F.3d 723, 729 (5th Cir. 1995)).[8] Thus, "if a defendant knew before the crime that a gun would be used and acted to facilitate or encourage that use, a jury may more easily be able to infer that the defendant specifically intended to aid the use of a firearm." Id. at 1103-04. On the other hand, "a defendant's mere presence during the planning of the robbery and agreement to that plan in general does not show direct facilitation or encouragement of the firearm in particular." Nelson , 137 F.3d at 1104. There must be evidence that the defendant facilitated or encouraged the use of the firearm, and not merely the overall robbery. Id.

As explained above, movant argued on appeal that the evidence introduced at his trial was insufficient to support his conviction on the charge of aiding and abetting the using of a firearm in connection with the robbery of the First Federal Credit Union. The Ninth Circuit Court of Appeal, relying on the decision in Nelson, agreed with movant's arguments and reversed his conviction on that charge, reasoning that "the only evidence the government presented to support that theory was that Davis knew that guns were going to be used in the robbery and may have been present for a discussion concerning how the robbery was to be conducted." Davis, 138 Fed.Appx. at 915.

The evidence submitted at trial with respect to movant's use of a firearm in violation of §924(c) in connection to the Golden One robbery was of a different character however. Through the trial testimony of Marcel Swift, it was established that movant participated in a planning meeting prior to the Golden One robbery, at which the participants discussed "what we was going to do, who was going to do what." (RT at 1511.) Swift also testified that movant brought a MAC-11 firearm to that meeting. ( Id. at 1511-12.) Based upon this evidence a reasonable jury could find that movant knew before the Golden One robbery that a firearm would be used in that robbery and that he facilitated or encouraged that use of a firearm by bringing a MAC-11 firearm to the planning meeting for that robbery. See United States v. Hungerford , 465 F.3d 113, 1117 (9th Cir. 2006) (evidence was sufficient to support a § 924(c) conviction on an aiding and abetting theory where the defendant helped plan the robberies, scouted potential targets, had knowledge that her co-conspirator was carrying out the robberies, and willingly accepted the proceeds of the crimes).

Latione Landers declares that Servidio did not sell a firearm to movant at Landers' house. (ECF No. 319-2.) Even taken as true, this declaration would establish only that the MAC-11 brought by movant to the Golden One robbery planning meeting was not purchased by movant at Landers' house from Servidio. The Landers declaration neither disproves nor discredits Swift's testimony that movant brought a MAC-11 weapon to the planning meeting. In other words, even if movant did not purchase a MAC-11 at Landers' house, he obviously still could have purchased or obtained one elsewhere and brought it to the robbery planning meeting, knowing it would be used in the robbery of Golden One or thereby encouraging the use of firearms in the commission of that robbery.

Jason Ellis Smith declares in conclusory fashion and without elaboration, that movant "did not provide the weapons used in the armed robbery of the Golden One Credit Union." (ECF No. 319-1.) This cursory statement is insufficient to counter the far more specific testimony of Marcel Swift that movant brought a MAC-11 to the planning meeting and participated at that time in a discussion about the specifics of the Golden One robbery. As with the Landers declaration relied upon by movant, Smith's declaration certainly does not affirmatively prove that movant is probably innocent of the charge of using a firearm during, or possessing a firearm in the furtherance of, the Golden One Credit Union robbery.

Even when considered together, the "new" evidence provided by Smith and Landers in their declarations upon which movant relies is insufficient to meet the "extraordinarily high" standard set for establishing that movant is innocent of using a firearm in connection with the robbery of the Golden One Credit Union, as that crime is defined in 18 U.S.C. § 924(c). In light of the other evidence introduced at movant's trial which supports his conviction on that charge, the undersigned finds that movant has failed to make a "truly persuasive demonstration" that he is innocent with respect to that offense.[9] Herrera , 506 U.S. at 417. Accordingly, he is not entitled to relief on that claim.

3. Movant's Other Convictions

Movant has also failed to "affirmatively prove" that he is "probably innocent" of the other charges of which he was convicted at trial. Carriger , 132 F.3d at 476. It is true that Robinson and Swift originally identified someone other than movant as one of the perpetrators of the robberies, that Chukes refused to identify movant as one of the participants in the U.S. Bank robbery, and that Connors recanted his testimony implicating movant in the Schools Federal Credit Union robbery. However, despite these circumstances, there was significant additional evidence introduced at movant's trial implicating him in the commission of all the crimes of conviction, including the testimony of Robinson and Swift, DNA evidence, and movant's letter Jason Smith's wife in which movant asked Smith to exculpate him of the robberies. The jury apparently believed all of this other evidence and found movant guilty of the charged offenses notwithstanding the weaknesses in the testimony of other government witnesses pointed out by movant. After considering the Landers and Smith declarations, both Hernandez' trial testimony and his failure to pick movant out of a lineup, and movant's assertion that he believes he at one time saw, or "probably" saw, a photograph showing that one of the participants in the Golden One robbery had a handgun, this court concludes that movant has failed to present a "truly persuasive claim" that he is factually innocent of any of the charges upon which he was convicted. Herrera , 506 U.S. at 417. Accordingly, he is not entitled to relief on his claim of actual innocence.[10]

4. Request for Discovery/Evidentiary Hearing

Movant also requests an evidentiary hearing and further discovery in order to "recreate" his trial counsel's files and to obtain evidence in support of his claim of actual innocence. (ECF No. 303-2 at 23.) Specifically, he requests: (1) an evidentiary hearing, at which he, his trial counsel, and several witnesses called at his trial would testify; (2) discovery of phone records and bank records; (3) discovery of records that might demonstrate whether "witnesses against Mr. Davis" had a motive to implicate him in the charged crimes; (4) discovery of records that might demonstrate the reasoning for his trial counsel's tactical decisions; (5) the video of the robbery at Golden One Credit Union, in order to demonstrate that the robbers were using handguns as opposed to a MAC-11; and (6) discovery of state and federal records involving sales of the weapon movant allegedly purchased from Servidio. (ECF No. 303-2 at 7-8, 19-21; ECF No. 319 at 7, 20-21, 32.) Movant also explains that an evidentiary hearing would "allow the court to view the original Golden One video and to hear testimony from the various witnesses related to the disputed evidence which the government asserted was not trustworthy and/or dependable." (ECF No. 315 at 7.)

District courts, for good cause, may authorize parties to a § 2255 habeas proceeding to conduct discovery. Rule 6(a) of the Rules Governing Section 2255 Proceedings for the U.S. Dist. Cts. Good cause under Rule 6(a) exists "where specific allegations before the court show reason to believe that the petitioner may, if facts are fully developed, be able to demonstrate that he is... entitled to relief...." Bracy v. Gramley , 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson , 394 U.S. 286, 300 (1969)). However, habeas petitioners may not "use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. U.S. Dist. Court , 98 F.3d 1102, 1106 (9th Cir. 1996). See also Kemp v. Ryan , 638 F.3d 1245, 1260 (9th Cir. 2011) ("Kemp's claim of a jail-wide policy of eliciting incriminating statements has many of the indicia of an improper fishing expedition, ' and the desire to engage in such an expedition cannot supply good cause' sufficient to justify discovery."); Rich v. Calderon , 187 F.3d 1064, 1067 (9th Cir. 1999) (petitioners may not seek to use discovery as a "fishing expedition... to explore their case in search of its existence.") (quoting Calderon v. U.S.D.C. (Nicolaus) , 98 F.3d 1102, 1106 (9th Cir. 1996)). Similarly, "good cause for discovery cannot arise from mere speculation" and "discovery cannot be ordered on the basis of pure hypothesis." Arthur v. Allen , 459 F.3d 1310, 1311 (11th Cir. 2006). Finally, the availability of relief under § 2255 does not properly offer a criminal defendant an "opportunity' to reargue their entire case." United States v. Schaflander , 743 F.2d 714, 722 (9th Cir. 1984).

In essence, movant is seeking to obtain wide-ranging discovery on the off-chance that it might provide evidence that supports his claims. In part, movant wishes to re-visit the testimony, including the cross-examination, of certain trial witnesses, and to investigate his case anew. The discovery rules applicable to § 2255 proceedings do not permit such a wide ranging exercise, nor do they allow a petitioner to investigate his entire case anew after he has been convicted. Movant's argument that he might be able to find evidence to support his claims of actual innocence if he were to obtain additional discovery or is granted an evidentiary hearing is based entirely on speculation and hypothesis.

The undersigned concludes that no additional factual supplementation is necessary in this case and that neither an evidentiary hearing nor further discovery is appropriate with respect to the claims raised in the motion pending before this court. Movant has not demonstrated good cause to conduct the discovery that he seeks. Therefore, his request for an evidentiary hearing and further discovery should be denied.

C. Ineffective Assistance of Counsel

In his next ground for relief, movant claims that his trial counsel rendered ineffective assistance in failing to interview Latione Landers to determine whether he could refute Servidio's testimony that movant bought a gun at Landers' residence. Movant also faults his trial counsel for failing to call Landers as a witness at his trial. (ECF No. 303-2 at 21.) In this regard, movant argues that Landers' testimony could have cast "additional doubt on the government's entire case" and was therefore "material." (ECF No. 303-2 at 23; ECF No. 319 at 36.) He reasons as follows:

Here, trial counsel failed to investigate evidence related to a material issue. The government repeatedly placed Mr. Landers at the place and time when the alleged weapon used in all the crimes according to the government's theory of the case. Mr. Landers asserts trial counsel failed to even contact him. The government during the trial alerted the defense that it could have called him to testify. Mr. Landers refutes the government's only witness who testified that Mr. Davis purchased a weapon from Servidio - Servidio himself. Servidio[s] testimony was inconsistent and the defense brought up his prior felony conviction; however, the defense did not present testimony from the individual who the government repeatedly asserted was present, too - Mr. Landers.

(ECF No. 303-2 at 23.)

Respondent, on the other hand, argues that movant's trial counsel had a tactical reason for not calling Mr. Landers as a trial witness. Respondent notes that several affidavits attached to movant's § 2255 motion reflect that Landers told movant's mother and sister, as he left the courtroom after listening to Servidio's testimony, that Servidio was lying. (See ECF Nos. 319-3, 319-4.) Movant's mother also declares that movant told her he had talked to his trial attorney and "told him he should contact Latione Landers." (ECF No. 319-3.) Respondent argues that, given this evidence, it is clear movant's trial counsel was aware of Landers' as a potential witness but decided, as a tactical matter, not to call him as a defense witness at trial. Respondent suggests the following viable reasons for such a tactical decision by movant's trial counsel: (1) Landers is movant's cousin and therefore had a motive to testify falsely in order to help movant and could be impeached on that basis; (2) Landers was subject to impeachment based on his prior criminal record; (3) Landers might have refused to take the witness stand in order to avoid exposing himself to criminal prosecution if he committed perjury; and (4) Landers' credibility had already been negatively impacted by Servidio's testimony that Landers was involved in the illegal sale of firearms to movant. (ECF No. 317 at 17-18.)

Respondent notes that movant's counsel was given a nine-day trial continuance to prepare for his cross-examination of Servidio. Respondent argues,

it is inconceivable that during the nine days the trial court permitted the defense to prepare for cross-examination of Servidio that Davis and his trial counsel would not have engaged in an extended conversation of how to cross-examine Servidio and whether or not to call Landers as a defense witness on this matter.

(Id. at 17.) Respondent also argues that movant's trial counsel may have decided Landers' potential testimony was not particularly helpful to the defense, given that it would not provide direct evidence that movant was innocent of the robberies themselves but would have only addressed whether Servidio sold a gun to movant at Landers' house. (Id.)

The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington , 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, ___, U.S. ___, ___ , 131 S.Ct. 770, 787-88 (2011) (quoting Strickland , 466 U.S. at 687).

A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland , 466 U.S. at 669; see Richter , 131 S.Ct. at 789. Reviewing courts must also "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Hedlund v. Ryan , 750 F.3d 793, 809 (9th Cir. 2014) (quoting Strickland , 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg , 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland , 466 U.S. at 689). A reviewing court must also give counsel "the benefit of the doubt, " and must "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, ___ U.S. ___ , 131 S.Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted).

The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that [t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Wiggins, 539 U.S. at 521 (quoting Strickland , 466 U.S. at 688). However, "general principles have emerged regarding the duties of criminal defense attorneys that inform [a court's] view as to the objective standard of reasonableness' by which [a court must] assess attorney performance, particularly with respect to the duty to investigate." Summerlin v. Schriro , 427 F.3d 623, 629 (9th Cir. 2005). For instance, "strategic choices made after thorough investigation of [the relevant] law and facts relevant to plausible options are virtually unchallengeable." Strickland , 466 U.S. at 690. However, as the Supreme Court has explained:

[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances.

Wiggins v. Smith , 539 U.S. 510, 521 2003) (quoting Strickland , 466 U.S. at 690-91).

Accordingly, counsel must, "at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Hendricks v. Calderon , 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle , 21 F.3d 1446, 1456 (9th Cir. 1994)). See also Porter v. McCollum , 558 U.S. 30, ___, 130 S.Ct. 447, 453 (2009) (counsel's failure to take "even the first step of interviewing witnesses or requesting records" and ignoring "pertinent avenues for investigation of which he should have been aware" constituted deficient performance). On the other hand, where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, his or her performance is not constitutionally deficient. See Siripongs v. Calderon , 133 F.3d 732, 734 (9th Cir. 1998) (Siripongs II); Babbitt v. Calderon , 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist , 67 F.3d 181, 185 (9th Cir. 1995). Furthermore, "ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.'" Bragg v. Galaza , 242 F.3d 1082, 1088 (9th Cir. 2001) (quoting Eggleston v. United States , 798 F.2d 374, 376 (9th Cir. 1986)). See also Rhoades v. Henry , 638 F.3d 1027, 1036 (9th Cir. 2011) (counsel did not render ineffective assistance in failing to investigate or raise an argument on appeal where "neither would have gone anywhere")

Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id . "The likelihood of a different result must be substantial, not just conceivable." Richter , 131 S.Ct. at 792.

After a careful review of the record, the undersigned concludes that movant has failed to demonstrate that he received ineffective assistance of counsel with respect to his trial counsel's failure to interview Landers and/or to call Landers as a witness at trial. First, there is no evidence before this court that Landers would have testified at movant's trial if called or that he would have testified consistently with the statements in his affidavit now filed in support of the instant motion. Further, as noted by respondent, movant's trial counsel was aware, because he was told by movant, that Landers believed Servidio had lied on the witness stand. This suggests that trial counsel decided, for tactical reasons, not to call Landers as a witness. Finally, as outlined above, there was substantial evidence admitted at trial supporting movant's conviction on the charges brought against him.

Under all of these circumstances, movant has failed to demonstrate either deficient performance on the part of his trial counsel or prejudice. See United States v. Harden , 846 F.2d 1229, 1231-32 (9th Cir. 1988) (no ineffective assistance because of counsel's failure to call a witness where the witness would have been subject to impeachment, there was no evidence in the record that the witness would have testified at defendant's trial, and defendant was not prejudiced in light of the overwhelming evidence against him). The court also notes that Landers' declaration does not impeach the testimony of the many other trial witnesses who described movant's participation in the robberies of which he was convicted. There is, therefore, no reasonable probability that, but for trial counsel's failure to call Landers as a witness, the result of movant's trial would have been different.

Indulging the strong presumption that the performance of movant's trial counsel falls within the wide range of reasonable professional assistance, the undersigned concludes that counsel did not render ineffective assistance in failing to interview and call Landers as a witness at movant's trial. Accordingly, movant is not entitled to relief on that claim.

D. Prosecutorial Misconduct

In his third ground for relief, movant claims that the prosecutor in his case "failed to exercise [his] duties as outlined in Berger v. United States , 295 U.S. 78 (1935)." Specifically, movant argues that the prosecutor improperly proceeded with movant's trial in the face of evidence that movant was not guilty of the charged crimes. (ECF No. 303-2 at 23.)

In Berger, the Supreme Court held a prosecutor's duty "is not only to use every legitimate means to bring about a just conviction, but to refrain from improper methods calculated to produce a wrongful conviction." 295 U.S. at 628. Movant argues that the prosecutor in his case violated that rule by: (1) applying undue pressure on Erik Chukes and Martin Connors to implicate movant in the charged crimes; (2) improperly relying on Antonio Servidio and other witnesses to support the prosecution theory of the case even though their trial testimony and pretrial statements regarding movant's involvement in the charged crimes were "inconsistent;" (3) arguing that the defense could have called Latione Landers as a trial witness but failing to call Landers as a prosecution witness; (4) failing to provide sufficient information so that movant could find the photograph that he remembers seeing of at least one of the participants in the Golden One robbery using a handgun instead of a MAC firearm; and (5) unfairly implying that improper behavior by spectators in the courtroom during trial was movant's fault. (ECF No. 303-2 at 23-24, 319 at 23-24.) Movant contends that in order to comply with the holding of Berger, the prosecutor should have made "more of an effort" to resolve these issues and should "join the defense [in requesting] an evidentiary hearing to review the records to make sure the conviction is not based on perjured testimony from individuals who freely admitted to committing other violent crimes but were given deals to cooperate and testify against Mr. Davis." (ECF No. 303-2 at 24.) Movant argues that "the search for the truth in this matter was subjugated to the government's desire to win." (Id.)

Movant also cites to the Supreme Court's decision in Imbler v. Pachtman , 424 U.S. 409, 426 n.24 (1976), arguing that "after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction."[11] (ECF No. 319 at 23.) In a supplemental brief, movant claims that "issues related to the new evidence" (the Landers and Smith affidavits) give rise to claims based on Napue v. Illinois , 360 U.S. 264 (1959) and Brady v. Maryland , 373 U.S. 83 (1963). (ECF No. 323.) Movant argues, in general, that the prosecutor in his case was overly zealous in his attempt to obtain a guilty verdict and ignored signs that movant might be innocent of the charged crimes.

It is not clear whether movant raised this claim of prosecutorial misconduct on direct appeal. Assuming arguendo that the claim is cognizable in this § 2255 motion proceeding and that it is independent of movant's claim of actual innocence, it nonetheless lacks merit and should be rejected.

A violation of a defendant's right to due process occurs if the government knowingly uses false evidence or fails to correct false testimony. Napue , 360 U.S. at 269; Morales v. Woodford , 388 F.3d 1159, 1179 (9th Cir. 2004). "To establish a Napue claim, a petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3)... the false testimony was material.'" Towery v. Schriro , 641 F.3d 300, 308 (9th Cir. 2010) (quoting United States v. Zuno-Arce , 339 F.3d 886, 889 (9th Cir. 2003)). Mere speculation regarding these factors is insufficient to meet petitioner's burden. United States v. Zuno-Arce , 209 F.3d 1095, 1103 (9th Cir. 2000) (speculation is not a basis for an evidentiary hearing on a Napue claim), overruled on other grounds by Valerio v. Crawford , 306 F.3d 742, 763-64 (9th Cir. 2002) (en banc).

In Brady v. Maryland , 373 U.S. 83, 87 (1963), the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." There are three components of a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 281-82 (1999). See also Skinner v. Switzer, ___ U.S. ___, ___ , 131 S.Ct. 1289, 1300 (2011); Banks v. Dretke , 540 U.S. 668, 691 (2004); Maxwell v. Roe , 628 F.3d 486, 509 (9th Cir. 2010). The rule of Brady applies in a situation where "the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury." United States v. Agurs , 427 U.S. 97, 103 (1976).

Here, movant has failed to demonstrate that the government knew or should have known that any trial testimony which it presented was false. Indeed, movant himself notes that "there is no proof that the government intentionally allowed perjured testimony to be introduced." (ECF No. 319 at 23.) Accordingly, movant is not entitled to relief on a claim based on the Supreme Court's decision in Napue.

Petitioner has also failed to establish that the prosecutor committed a Brady violation in connection with movant's conviction. There is no evidence before this court suggesting that the prosecutor withheld material exculpatory information from the defense. The court also notes that to the extent movant attempts to base his claim on the prosecution's alleged failure to tell the defense that Landers believed Servidio had lied during his trial testimony, he cannot establish that he suffered any prejudice since movant had already been informed by his mother of Landers' expressed opinion that Servidio had testified falsely.

With regard to movant's arguments based on the Supreme Court's decision in Berger, there is simply no evidence in this case that the prosecutor knowingly proceeded with the prosecution against movant even though the prosecutor knew or suspected that movant was innocent of the charges. It is clear that the prosecutor believed in 2002, and still believes, that movant is guilty of the crimes with which he was charged and convicted. Further, movant's allegations that the prosecutor used unfair or coercive tactics in preparing and presenting the government's case are not supported by credible evidence in the record and do not rise to the level of a federal constitutional violation.[12] Nor is there any evidence that the prosecutor committed misconduct in failing to respond to movant's newly acquired evidence by entering into a joint request for an evidentiary hearing. Indeed, respondent's position is that the declarations signed by Latione Landers and Jason Ellis Smith are themselves perjurious. (ECF No. 324 at 4.)

For all of these reasons, the undersigned concludes that movant is not entitled to relief on his claim that the prosecutor violated his duty to "refrain from improper methods calculated to produce a wrongful conviction." Berger, 295 U.S. at 628.

E. Movant's Sentence

In his final claim for relief, movant argues that the sentence imposed in his case violates his Fourteenth Amendment rights to due process and equal protection. Specifically, movant argues that his sentence is improperly based on the trial court's unsubstantiated belief that he was involved in threats and intimidation against trial witnesses. Movant also claims that his "prior juvenile adjudication that resulted in a homicide" was a factor in the sentenced imposed upon him here, and that he received a lengthy prison sentence because he "challeng[ed] the government's case." (ECF No. 303-2 at 24-25.) Movant notes in this regard that his co-defendants received "lessor sentences." ( Id. at 25.) However, movant cites no legal authority in support of these arguments.

Again, it is not clear whether movant raised his present challenge to his sentence on direct appeal. However, assuming arguendo that the claim is cognizable in these § 2255 motion proceedings, it should be rejected.

There is no evidence before this court supporting movant's claim that the trial judge relied on improper considerations in imposing sentence on movant after the second remand from the Ninth Circuit for re-sentencing. In this regard, the undersigned notes that the transcript of movant's 2009 sentencing has not been lodged with the court by either party. In any event, movant has simply not come forward with any evidence that supports his claims regarding the trial judge's motives for imposing sentence. As respondent contends, the sentence imposed in movant's case appears to have been based on consideration of the applicable U.S. Sentencing Guidelines and the sentence ultimately imposed appears to fall within the range provided following an appropriate guideline calculation. Accordingly, movant is not entitled to relief on his claim attacking his sentence.

On August 22, 2013, movant filed a document entitled "Motion to Reopen and Amend 28 U.S.C. § 2255 motion." Therein, movant's counsel requested leave to file additional briefing addressing the recent Supreme Court decisions in Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151 (2013) and Descamps v. United States, ___ U.S. ___ , 133 S.Ct. 2276 (2013), and "to expand upon the issues related to" movant's sentencing claim. (ECF No. 326 at 1.) This court denied movant's request to file additional briefing, but advised that it would consider the Alleyne and Descamps decisions when issuing findings and recommendations addressing movant's § 2255 motion.

In Alleyne, the United States Supreme Court held that a finding as to whether the defendant had brandished, as opposed to merely carried, a firearm in connection with a crime of violence was an element of the offense that had to be found by a jury because the finding as to that fact would elevate the mandatory minimum term for the offense. Alleyne , 133 S.Ct. at 2151. In Descamps, the Supreme Court held that courts may not apply the modified categorical approach to sentencing under the Armed Career Criminal Act (ACCA) when the crime of which the defendant was convicted has a single, indivisible set of elements. Descamps , 133 S.Ct. at 2276; see also Aguilar-Turcios v. Holder , 740 F.3d 1294, 1299 (9th Cir. 2014) ("The Supreme Court subsequently.... held that sentencing courts may not apply the modified categorical approach when a defendant's statute of conviction contains an indivisible set of elements.") In short, the decisions in Alleyne and/or Descamps do not have any bearing on movant's challenges to his sentence set forth in his § 2255 motion before this court and do not entitle him to relief even when considered independently.

V. Motion for Nunc Pro Tunc Order

Back on June 30, 2011, movant filed a motion for an order "designating that Mr. Davis filed his Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Federal Sentence by a Person in Federal Custody on June 28, 2011, " and not on June 30, 2011, as appears on the court docket. (ECF No. 259.) Therein, movant's counsel explains his good faith efforts to file the § 2255 motion using the court's CM/ECF system on June 28, 2011 and his belief on that date that he had successfully done so. Respondent has never filed any opposition to this motion.

Accordingly, movant's motion for a nunc pro tunc order will be granted.

VI. Conclusion

Accordingly, IT IS ORDERED that movant's June 30, 2011 motion for a "nunc pro tunc order to designate motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody as filed on June 28, 2011" (ECF No. 259) is granted.

IT IS HEREBY RECOMMENDED that movant's motion pursuant to 28 U.S.C. § 2255 be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan , 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991). In his objections movant may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).


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