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