United States District Court, E.D. California
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.
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 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.) 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 ...