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Dushane v. United States

United States District Court, E.D. California

November 15, 2019




         Movant, a federal prisoner proceeding through counsel, filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.[1] In his motion, movant challenges his federal conviction on one count of possessing stolen mail, one count of possessing counterfeit or unauthorized access devices, and aggravated identity theft. As grounds for relief, movant alleges that he was denied the effective assistance of appellate counsel and that newly discovered evidence demonstrates his innocence on count two. Respondent filed an opposition (ECF No. 366), and movant filed a reply (ECF No. 367). For the reasons discussed herein, the undersigned recommends denying movant's 28 U.S.C. § 2255 motion as the claims are either patently frivolous or fail on the merits.

         I. Factual and Procedural Background

         Following a five-day jury trial during which movant represented himself, he was convicted of possessing stolen mail, possessing more than 15 unauthorized access devices, and aggravated identity theft. On May 1, 2014, movant was sentenced to a total term of 168 months which included the statutory maximum sentence on two counts and 24 months imprisonment on the remaining count.[2] The Ninth Circuit Court of Appeal affirmed movant's conviction in an unpublished memorandum decision issued on November 20, 2015. See United States v. DuShane, 623 Fed.Appx. 332 (2015).

         II. Legal Standards

         A district court may grant relief to a federal prisoner who challenges the imposition or length of his sentence on the grounds that: “the sentence was imposed in violation of the Constitution or laws of the United States, … the court was without jurisdiction to impose such sentence, … the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack….” 28 U.S.C. § 2255(a). However, a Section 2255 motion cannot be used to relitigate a claim that has already been raised and rejected on direct appeal. See Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970).

         Movant alleges that he was denied the effective assistance of appellate counsel. The Supreme Court has enunciated the standards for judging ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. To this end, the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court must then determine, whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. Second, a defendant must affirmatively prove prejudice. Id. at 693. 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.” Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.; see also United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985); United States v. Schaflander, 743 F.2d 714, 717-718 (9th Cir. 1984) (per curiam).

         The Strickland standard applies equally to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). However, an indigent defendant does not have “a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (emphasizing that an experienced attorney knows the importance of “winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues”). Appellate counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice resulting from appellate counsel's failure to raise an issue on appeal, movant must demonstrate that, but for counsel's errors, he probably would have prevailed on appeal. Id. at 1434 n. 9.

         Regarding movant's claim that appellate counsel should have raised his competency to waive counsel and represent himself at trial, the Supreme Court made clear in Faretta that criminal defendants have the right to represent themselves at trial in order to protect “'the right of the accused personally to manage and conduct… [their] own defense in a criminal case.'” Faretta, 422 U.S. at 817 (citations omitted). In so doing, the high court recognized that a pro se defendant “may conduct his own defense ultimately to his own detriment.” Faretta, 422 U.S. at 834. Good decision making is not the cornerstone of a defendant's competency to waive counsel. Criminal defendants must “knowingly and intelligently” waive their right to counsel and the record should affirmatively establish that such defendants know what they are doing and are making the choice “with eyes open.” Faretta, 422 U.S. at 835.

         II. Analysis

         In his first two claims for relief, movant asserts that newly discovered evidence from his co-defendant, Manda Wentzloff, demonstrates his actual innocence for possessing more than 15 unauthorized access devices. Based on this newly discovered evidence, movant raises a freestanding actual innocence claim as well as a separate due process and fair trial challenge to his conviction on count two.[3] However, movant failed to submit any “newly discovered evidence” from his co-defendant and conceded that he merely “wish[ed]” Ms. Wentzloff would provide exculpatory evidence even though she testified against him at trial.[4] ECF No. 367 at 22. Absent actual evidence demonstrating movant's innocence of claim two, these challenges to his conviction are patently frivolous and should be denied. The undersigned recommends denying the actual innocence as well as the due process and fair trial challenges to count two because they are completely conclusory and are contradicted by the record evidence in this case. See James v. Borg, 24 F.3d 20 (9th Cir. 1994) (finding that completely conclusory habeas claims do not warrant relief).

         In his third claim for relief movant alleges that his appellate lawyer was ineffective for failing to argue that the 26 credit card statements used to support his conviction on count two were insufficient because they did not contain expiration dates and security codes, thus rendering them unusable to obtain any item of value. ECF No. 354 at 8; see also 18 U.S.C. § 1029(e) (defining an access device as one that can be used, “alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds….”). However, movant's opening brief filed in the Ninth Circuit Court of Appeal belies this assertion. See ECF No. 366-1 at 16-19. Appellate counsel specifically argued that:

[A] credit card statement does not contain the expiration date of the credit card or the security number found on the credit card itself. You cannot use a credit card statement at an ATM or store because you are required to produce the actual credit card; and you cannot use a credit card statement on-line or over the telephone because the credit card statement does not have the full account number, the credit card expiration date, or security number found on the credit card itself. In other words, a credit card statement is not capable of providing the holder, even with use of another access device, with money, goods, services, or any other thing of value.”

         ECF No. 366-1 at 18. This was part of appellate counsel's sufficiency challenge to count two of the indictment and consequently, it has been raised and rejected by the Ninth Circuit. See United States v. DuShane, 623 Fed.Appx. at 332 (finding that a rational trier of fact could have found sufficient evidence beyond a reasonable doubt “based on evidence that DuShane had obtained 26 full credit card account numbers, and on Wentzloff's testimony regarding DuShane's subsequent use of these numbers.”) (internal citations omitted). This claim is barred from being relitigated on federal habeas review. See United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985); ...

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