United States v. Foster

          ORDER ON PETITIONER'S 28 U.S.C. § 2255 PETITION (DOC. NO. 331)

         On May 23, 2017, a jury found Petitioner Keith Foster (“Foster”) guilty of one count of conspiracy to distribute and possess marijuana and one count of conspiracy to distribute and possess heroin, both in violation of 21 U.S.C. §§ 841(a)(1) and 846. Foster's conviction and sentence were affirmed by the Ninth Circuit on direct appeal on June 20, 2019. See Doc. No. 327. On December 16, 2019, Foster filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, a motion for release pending adjudication of his § 2255 petition, and a motion to disqualify the undersigned. See Doc. Nos. 331, 332, and 333.^[1] This order addresses the § 2255 petition.^[2] For the reasons that follow, Foster's petition will be denied.

         Petitioner's Argument

         Foster argues that he is entitled to relief on four grounds. First, Foster contends that he received ineffective assistance from his trial counsel. Specifically, Foster contends that his counsel: (1) failed to review a grand jury transcript dated April 9, 2015, of FBI Agent Reynold's testimony; (2) failed to challenge the indictment as duplicitous and lacking any factual or legal basis; (3) failing to file a motion to recuse the undersigned based on the undersigned's approval of wiretaps in this case; (4) failing to vigorously challenge the sufficiency of the evidence to support a drug conspiracy; (5) failing to challenge government misconduct regarding the sufficiency of the evidence to support a drug conspiracy; (6) failing to object to improper jury instructions; (7) failing to invoke the corpus delicti rule; (8) failing to file a Rule 29 motion for acquittal due to insufficient evidence; and (9) failing to conduct basic research regarding the sufficiency of the evidence to support a drug conspiracy and differentiating drug conspiracies from buyer-seller relationships.

         Second, Foster argues that that there was unconstitutional prosecutorial misconduct. Foster argues that the government attorneys willfully and deliberately disregarded Ninth Circuit law regarding the sufficiency of the evidence that is necessary to sustain a drug conspiracy conviction. The evidence and theories presented to the jury were insufficient to support the conviction. Further, the government utilized an indictment that was duplicitous with respect to the two counts upon which Foster was convicted.

         Third, Foster argues that numerous trial court errors violated his due process rights. Foster argues that this Court willfully disregarded Ninth Circuit case law governing the sufficiency of the evidence required to sustain a drug conspiracy conviction, failed to properly instruct the jury regarding the essential elements of a drug conspiracy, and improperly failed to grant a motion for acquittal. Further, Foster argues that the undersigned should have disqualified himself under 28 U.S.C. § 455 because the undersigned authorized wiretaps. In that process, the undersigned received briefings and reviewed affidavits from law enforcement and the prosecution.

         Finally, Foster argues that he received ineffective assistance of appellate counsel. Foster argues that his appellate counsel failed to recognize that the government never proved the existence of the drug conspiracies that he was convicted of committing. This includes recognizing the distinction between a buy-seller transaction and an actual conspiracy, as explained in United States v. Moe, 781 F.3d 1120 (9th Cir. 2015). If appellate counsel had argued the Moe factors, the convictions would have been vacated.

         Ninth Circuit's Opinion

         Following his conviction, Foster filed a direct appeal with the Ninth Circuit. In affirming Foster's conviction, the Ninth Circuit held in relevant part:

Defendant Keith Foster . . . appeals his jury convictions for conspiring to possess with intent to distribute marijuana and heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. He contends that the evidence was insufficient, that his counsel was ineffective, that the jury should have been instructed on a buyer-seller relationship, and that the court erred in denying his request to unseal juror information. For the reasons below, we affirm.

There is sufficient evidence to support both convictions. Foster's phone calls and text messages with coconspirators Rafael Guzman and Lashon Jones sufficiently demonstrated Foster's role in the conspiracy to distribute heroin. Jones relayed heroin orders from buyers to Foster and assured Foster that the deals would benefit both of them. Foster discussed heroin types, prices, and meeting times with a supplier, Guzman, and relayed those details back to Jones. On an agreed-upon date, Foster attempted to meet Guzman to obtain the drugs, but the deal fell through when Jones did not answer her phone.

Foster's phone calls with his nephew Denny sufficiently established Foster's role in a conspiracy to distribute marijuana. Denny and Foster discussed marijuana quantities, meeting times, and prices, and Foster repeatedly pressed Denny for money for Foster's “boy.” After later learning that Denny had been arrested with six pounds of marijuana in his car, Foster expressed frustration that Denny had not asked for “cover, ” and Foster said that he would see what his “narc guys” could do for Denny.

Although counsel arguably performed deficiently by not moving for acquittal after the government's case in chief, Foster's ineffective assistance of counsel claim fails because there was no prejudice. The evidence was sufficient to support both convictions, so a motion for acquittal would have been denied. See United States v. Feldman, 853 F.2d 648, 665-66 (9th Cir. 1988) (failure to move for acquittal cannot be the basis for a finding of ineffective assistance if the crimes of conviction are supported by sufficient evidence). Counsel's decision not to request a buyer-seller instruction appears to be the product of strategy, not incompetence. See Strickland v. Washington, 466 U.S. 668, 689-90 (1984). The theory of the defense was that Foster was investigating the activities of others in his capacity as deputy police chief. A buyer-seller instruction would have clashed with this defense. For similar reasons, the district court did not err in failing to sua sponte instruct the jury on a buyer-seller relationship. United States v. Montgomery, 150 F.3d 983, 996 (9th Cir. 1998).

United States v. Foster, 772 Fed.Appx. 544, 544-45 (9th Cir. 2019)

         Legal Standard

         28 U.S.C. § 2255 provides, in pertinent part: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Under § 2255, a district court must grant a prompt hearing to a petitioner in order to determine the validity of the petition and make findings of fact and conclusions of law, “[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . .” 28 U.S.C. § 2255(b). 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. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1983). A petitioner is not required to allege facts in detail, but he “must make factual allegations” and cannot rest on conclusory statements. Baumann, 692 F.2d at 571; United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). Accordingly, an evidentiary hearing is required if: (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004).

         If a petitioner filed a direct appeal prior to filing a § 2255 petition, the Ninth Circuit has explained that if a “criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both cause excusing his procedural default, and actual prejudice resulting from the claim of error.” United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003); United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993); see also Battaglia v. United States, 428 F.2d 957, 960 (9th Cir. 1970). Generally, “[w]hen a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.” United States v. Hayes, ...