Opinion
CR 19-08075 PCT DWL CV 23-08040 PCT DWL (CDB)
12-28-2023
James Lee Jones, Jr., Movant, v. United States of America, Respondent.
TO THE HONORABLE DOMINIC W. LANZA:
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STALES MAGISTRATE JUDGE
Movant Janes Jones, proceeding pro se, seeks relief pursuant to 28 U.S.C. § 2255 from his convictions for aggravated sexual abuse of a child and abusive sexual contact with a child. This matter is now ready for the Court's review.
I. Background
An indictment filed April 16, 2019, charged Jones with four counts of aggravated sexual abuse of a child and six counts of abusive sexual contact with a child. (Criminal Docket (“CR”) ECF No. 1). A superseding indictment filed November 19, 2019, charged Jones with three counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 1143, 2241(c) and 2246(2)(C) (Counts 1, 3, and 9); one count of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(D) (Count 8), and five counts of abusive sexual contact with a child, in violation of 18 U.S.C. §§ 1153, 2244(a)(1) and 2246(3) (Counts 2 and 4 through 7). (CR ECF No. 54). The charges involved two victims.
Jones rejected the Government's plea offer. (CR ECF Nos. 22 & 24). In preparation for trial, the parties filed pleadings regarding text messages on a victim's phone, the anticipated testimony of Dr. Wendy Dutton, and the anticipated testimony of a sexual assault nurse examiner (“SANE” nurse). The Government's motion in limine to preclude the admission of text message on the victim's phone cited Federal Rule of Evidence 412; the Government argued the messages constituted “other sexual behavior” or “sexual predisposition” and were thus not admissible. (CR ECF No. 35). The Court addressed the motion at the final pretrial conference. Defense counsel argued Jones had a Sixth Amendment right to use the text messages as evidence at trial because they were inextricably intertwined with a victim's allegations and critical to attacking her credibility. (CR ECF No. 98 at 23-27). The Court concluded Rule 412(a) applied to the text messages, noting “the real fight is whether under Rule 412(b)(1)(C) there's an exception because the exclusion of this evidence would violate the defendant's constitutional rights.” (CR ECF No. 98 at 20-21). The Court granted the United States' motion to preclude the text messages, explaining: “[I]t doesn't follow, the fact that the 13-year-old who is confronted with sexual text messages on her phone, that she would have turned around and randomly picked Mr. Jones and falsely accused him of abusing her two years earlier. The two things are like ships passing in the night.” (CR ECF No. 98 at 31). At trial, defense counsel again argued the text messages were admissible, and the Court reaffirmed that the text messages were precluded under Rule 412. (CR ECF No. 100 at 113-14).
“The Government extended a plea offer under which the defendant would plead guilty to an Information charging him with Abusive Sexual Contact of a Child in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246(3), with a stipulated sentence of 240-300 months' imprisonment.” (CR ECF No. 22 at 1-2).
Prior to trial the Government provided notice that Dr. Dutton's testimony would cover various aspects of child sexual abuse, including the general characteristics of child sexual abuse victims, common myths associated with child sexual abuse victims, the process of victimization, the process of disclosure, how trauma can impact memory, and the forensic interviews of children. (CR ECF No. 28). Defense counsel filed a motion in limine to preclude this testimony. (CR ECF No. 36). At the final pretrial conference the Court denied the defense's motion, concluding Dr. Dutton's testimony was “both relevant and reliable” and that Dr. Dutton was “qualified to opine on the topics that are addressed in the notice of expert testimony.” (CR ECF No. 98 at 19). At trial Dr. Dutton testified consistently with the Government's notice, discussing the general characteristics of child sexual abuse victims. However, she specified that she did not know the facts of the case and was not there to tell the jury whether the defendant was guilty or whether the victims had been sexually abused. (CR ECF No. 100 at 24-25).
Prior to trial the United States identified a SANE nurse as a “fact witness” because she would testify as a treatment provider. (CR ECF No. 38). The Government also included the nurse in its expert disclosures in the event her testimony crossed into expert opinion territory. (Id.) The parties agreed to a jury instruction for “dual role” testimony as part of their joint proposed jury instructions. (CR ECF No. 40). At trial, the SANE nurse testified as a fact witness, discussing her January 2018 medical examination of a victim, her first-hand observations, and her treatment decisions. At the close of evidence the Court the finalized jury instructions with the parties. The Court offered “to hear whatever you'd like to say about the jury instructions.” (CR ECF No. 101 at 91). The Court found numerous instructions proposed by the parties were inapplicable. (CR ECF No. 101 at 93). The Court explained the “dual role testimony” instruction to be unnecessary because neither the SANE nurse nor the FBI case agent testified in dual roles, and neither the Government nor defense counsel objected. (CR ECF No. 101 at 93-97).
At trial, in addition to Dr. Dutton and the SANE nurse, the Government presented the testimony of family members (CR ECF No. 99 at 155-214), the victims (CR ECF No. 108 at 80-122, 144-72), and the FBI case agent (CR ECF No. 108 at 62-79). The United States also admitted a recorded confrontation call between one of the victims and Jones. (CR ECF No. 108 at 70, 77-78; Civil Docket (“CV”) ECF No. 7-1). Jones testified at his trial. (CR ECF No. 101 at 46-85).
At the conclusion of a four-day jury trial, after deliberating for approximately two and one-half hours, the jury found Jones guilty on all counts of the superseding indictment. (CR ECF Nos. 63 & 64). On March 4, 2020, Jones was sentenced to terms of life imprisonment pursuant to his convictions on Counts 1, 3, 8, and 9, to a sentence of 120 months on Count 2, and to sentences of 240 months on Counts 4 through 7, with all the sentences to be served concurrently. (CR ECF No. 92).
Jones appealed his convictions and sentences. See United States v. Jones, 2021 WL 5984901 (9th Cir. Dec. 16, 2021). Jones asserted the Court misapplied Federal Rule of Evidence 412(a) in granting the Government's motion in limine to exclude a proposed line of cross-examination regarding sexually-explicit text messages found on a mobile phone belonging to the victim. Id. at *1. Jones also argued the Court erred in admitting testimony from Dr. Dutton about behavioral characteristics of child sex abuse victims, and asserting that in doing so the Court improperly relied on United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997), because it predated Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), which clarified that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) applies not only to “scientific” testimony but also to expert testimony based on “technical” or “other specialized” knowledge. Id. at *1-2. Jones also argued the Court erred in refusing to give the parties' stipulated “dual role” jury instruction regarding the testimony of the SANE nurse, and alleged the cumulative effect of the Court's errors deprived him of a fair trial. Id. at *2. The Ninth Circuit Court of Appeals denied relief on all of Jones' claims.
II. Claims for Relief
In his § 2255 motion Jones asserts the following claims for relief:
1. His counsel was ineffective for “failing to object to Court's reasoning when considering application of F.R.E. 412(a).” (CV ECF No. 1 at 6). Jordan argues that the Court's statement at the final pre-trial conference that “it just doesn't seem logical to me” was “favoring the 13-year-old girl by vouching for her credibility.” (Id.).
2. The Court's ruling regarding Federal Rule of Evidence 412(a) violated his due process right to “present evidence of his innocence while confronting the evidence against him.” (CV ECF No. 1 at 7).
3. His “presumed innocence was prejudiced in the mind of the jury by child sexual abuse expert testimony prior to testimony of alleged child sex abuse victim;” Jones references the testimony of Dr. Dutton prior to the testimony of a victim. (CV ECF No. 1 at 8).
4. Jones alleges his right to the effective assistance of counsel was violated because his counsel failed to “object to alleged victim testimony lending credibility to a different victim's allegations against the Movant and not examining false statements on cross examination.” (CV ECF No. 1 at 9). Jones contends “this same alleged victim also testified to a time and place of alleged sexual abuse that have previously been proven, by the record, could not have happened.” (Id.).
5. Jones asserts his counsel was ineffective “for not establishing a motive for false claims of sexual abuse .. ..” (CV ECF No. 1 at 10).
6. Jones maintains his counsel was ineffective for “failing to challeng[e] the court's ruling that a cell phone text message relates to sexual history or disposition under F.R.E. 412(a)” and for failing “to object when the court denied a request for dual role jury instruction for SANE nurse testimony.” (CV ECF No. 1 at 11).
7. Jones maintains his counsel was ineffective for failing “to object when the court denied a request for dual role jury instruction for SANE nurse testimony.” (CV ECF No. 1 at 11).
The first portion of this claim is duplicative of Jones' first claim for relief.
III. Analysis
A. Relief under 28 U.S.C. § 2255
A federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or if the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); Davis v. United States, 417 U.S. 333, 344-45 (1974); United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016). Reliefunder § 2255 should be granted only where “a fundamental defect ... inherently results in a complete miscarriage of justice,” presenting “exceptional circumstances that justify collateral relief....” Davis, 417 U.S. at 345, citing Hill v. United States, 368 U.S. 424, 428-29 (1962).
Under the “law of the case” doctrine, a movant is precluded from relief on a § 2255 claim that was raised and denied in the movant's direct appeal. See, e.g., United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012); United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000); United States v. Scrivner, 189 F.3d 825, 828 (9th Cir. 1999). Furthermore, “[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998). Accordingly, a § 2255 movant procedurally defaults all claims not raised in his direct appeal, other than claims asserting the movant was deprived of their right to the effective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Ratigan, 351 F.3d 957, 964 (9th Cir. 2003); United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003).
B. Ineffective assistance of counsel claims
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Span, 75 F.3d 1383, 1386-87 (9th Cir. 1996). To prevail on a claim of ineffective assistance of counsel, a § 2255 movant must show both that his attorney's performance was deficient under reasonable professional standards and a reasonable probability that, but for counsel's unprofessional errors, the results of his criminal proceedings would have been different. Span, 75 F.3d at 1387; United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). Strickland defines a “reasonable probability” as a probability sufficient to undermine confidence in the outcome of the criminal proceedings. Span, 75 F.3d at 1387. See also United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005). A movant bears the burden of establishing both prongs of the Strickland test. See United States v. Quintero-Barraza, 78 F.3d 1344, 1347-48 (9th Cir. 1995). It is the movant's burden to provide the Court with sufficient evidence from which the Court can conclude counsel's performance was unconstitutionally ineffective. See United States v. Walter-Eze, 869 F.2d 891, 906 (9th Cir. 2017); United States v. Withers, 638 F.3d 1055, 1066-67 (9th Cir. 2011). Unsupported and conclusory allegations, without more, are not sufficient to support relief on a claim of ineffective assistance of counsel. See, e.g., United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir. 1997).
In a § 2255 matter the Court's “[r]eview of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). Judicial scrutiny of counsel's performance must be “highly deferential.” Strickland, 466 U.S. at 689. To establish that his counsel's conduct was unconstitutionally substandard a § 2255 movant must establish that no competent counsel would have acted as his counsel acted, i.e., that his counsel's acts were unreasonable. United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir. 2004); Ferreira-Alameda, 815 F.2d at 1253. The Ninth Circuit has long recognized the definition of reasonable professional assistance encompasses a broad range of actions and decisions. See Quintero-Barraza, 78 F.3d at 1348; United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). See also United States v. Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000) (“we presume that attorneys made reasonable judgments and decline to second guess strategic choices.”). The reasonableness of an attorney's actions is judged from the attorney's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 688-89. With regard to the prejudice prong of the Strickland analysis, the probability of prejudice may not be based merely upon conjecture or speculation. See Mickens v. Taylor, 535 U.S. 162, 176-77 (2002) (Kennedy, J. concurring) (stating speculation has no place in the Strickland analysis). A movant must establish that, but for counsel's error, the result of his criminal proceedings would have been different. E.g., United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991). Unsupported and conclusory allegations, without more, are not sufficient to support relief on a claim of ineffective assistance of counsel. United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1997).
C. Analysis of Movant's Claims for Relief
1. Ineffective assistance of counsel regarding Rule 412(a)
Jones maintains his counsel was ineffective for “failing to object to Court's reasoning when considering application of F.R.E. 412(a).” (CV ECF No. 1 at 6). Jones argues that the Court's statement at the final pre-trial conference constituted “favoring the 13-year-old girl by vouching for her credibility.” (Id.). Jones' contention that his counsel's performance was deficient for failing to argue the Rule 412(a) issue is not factually supported by the record. Defense counsel did argue this issue in a motion in limine (CR ECF No. 36), at the final pretrial conference, and again at trial at the time of the victim's testimony. Additionally, to prevail on a claim of ineffective assistance of counsel Jones must establish that his counsel's performance was unreasonably deficient and that he was prejudiced by the errors. Jones is unable to establish that his counsel's failure to challenge the Court's reasoning with regard to Rule 412(a) was prejudicial, because Jones raised a “freestanding” claim regarding the Court's application of the rule on appeal and the Ninth Circuit Court of Appeals denied the claim.
2. Application of Rule 412(a)
Jones contends the Court's misapplication of Rule 412(a) of the Federal Rules of Evidence violated his due process right to “present evidence of his innocence while confronting the evidence against him.” (CV ECF No. 1 at 7). On appeal Jones argued the Court failed to correctly apply Rule 412(a), and the Ninth Circuit Court of Appeals denied the claim on the merits. The Ninth Circuit's decision is “law of the case” and, accordingly, § 2255 relief on this claim must be denied. See, e.g., Jingles, 702 F.3d at 498; Hayes, 231 F.3d at 1139; Scrivner, 189 F.3d at 828.
3. Presumption of innocence
Jones asserts his “presumed innocence was prejudiced in the mind of the jury” by the presentation of Dr. Dutton's testimony prior to testimony of the victim. (CV ECF No. 1 at 8). Jones raised this claim on appeal, and the claim was denied. See Jones, 2021 WL 5984901, at *1. Jones litigated this claim on appeal. The Ninth Circuit Court of Appeals' decision denying the claim is law of the case and, therefore, relief may not be granted on this claim pursuant to § 2255.
4. Ineffective assistance of counsel regarding victim's testimony
Jones alleges his right to the effective assistance of counsel was violated because his counsel failed to “object to alleged victim [Eve's] testimony lending credibility to a different victim's [T.H.'s] allegations against the Movant and not examining false statements on cross examination.” (CV ECF No. 1 at 9). Jones contends “this same alleged victim also testified to a time and place of alleged sexual abuse that have previously been proven, by the record, could not have happened.” (Id.).
With regard to the “deficient performance” prong of the Strickland test, to establish that his counsel's conduct was unconstitutionally substandard a § 2255 movant must show that no competent counsel would have acted as his counsel acted, i.e., that his counsel's acts were unreasonable. Fredman, 390 F.3d at 1156; Ferreira-Alameda, 815 F.2d at 1253. The Ninth Circuit has long recognized the definition of reasonable professional assistance encompasses a broad range of actions and decisions. See Quintero-Barraza, 78 F.3d at 1348; Molina, 934 F.2d at 1447. See also Pergler, 233 F.3d at 1009. Jones makes only a conclusory allegation that Eve's testimony regarding abuse had “been proven, by the record,” to be false. Mere conclusory allegations are insufficient to establish that counsel was ineffective. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir.); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987).
Moreover, counsel's decisions regarding any objections to testimony or crossexamination of this witness were presumably strategic. “Strategic choices,” including the decision to lodge or withhold objections, are entitled to “a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 690-691. Competent counsel often make a strategic decision not to object to testimony, particularly that of a victim, in order to avoid emphasizing the testimony before the jury. See United States v. Lindsay, 157 F.3d 532, 536 (7th Cir. 1998) (“Furthermore, as in the case of [a particular witness's] testimony, a competent lawyer would make a strategic decision between leaping up and objecting to borderline statements (thereby calling them sharply to the jury's attention) and leaving well enough alone.”); Charles v. Fischer, 516 F.Supp.2d 210, 217 (E.D.N.Y. 2007) (noting that “an attorney's failure to object generally is considered a strategic decision,” and finding that it was “possible that trial counsel did not want to draw attention to the testimony”). Declining to accuse a witness of lying or obfuscating during cross-examination is both reasonable and a prudent course of conduct, i.e., this is often a strategic decision aimed to minimize damaging testimony from an opposing party's witness. See, e.g., Faust v. United States, 978 F.2d 714, 1992 WL 322052, at *2 (9th Cir. 1992) (“A tactical decision by counsel with which the defendant disagrees forms no basis for an ineffective assistance claim.”); Jones v. United States, 914 F.2d 262, 1990 WL 130698, at *5 (9th Cir. 1990); Hurley v. United States, 10 Fed.Appx. 257, 260 (6th Cir. 2001) (finding less rigorous cross-examination was a matter within counsel's strategic discretion when seeking to minimize the effect of testimony).
Furthermore, Jones is unable to establish prejudice arising from this alleged error as the record does not indicate that any objection was likely to succeed, and competent counsel need not make objections that, given the facts as they appear to be “as of the time of counsel's conduct,” do not have a reasonable chance of success. Strickland, 466 U.S. at 690; United States v. Mercado-Ulloa, 267 Fed.Appx. 568, 570 (9th Cir. 2008). See also United States v. Gibson, 690 F.2d 697, 703-04 (9th Cir. 1982) (failure to make evidentiary objections does not render assistance ineffective unless challenged errors can be shown to have prejudiced the defense).
5. Ineffective assistance of counsel regarding motive
Jones asserts his counsel was ineffective “for not establishing a motive for false claims of sexual abuse against the Movant.” (CV ECF No. 1 at 10). Jones maintains counsel erred by failing to argue that the minor-child victim had a motive to falsely accuse him of sexual assault. (Id.). Jones is unable to establish counsel's performance was deficient because counsel did, to the extent allowed, raise an argument that the minor victim accused him of abuse because her older relative had confronted her with accusations of misbehavior. Because counsel pursued this issue Jones is unable to establish counsel's performance was deficient. Because the evidence against Jones included both victims' testimony and his statements during the confrontation call, Jones is unable to establish any alleged deficient performance by counsel in further pressing this argument was prejudicial.
6. Ineffective assistance of counsel regarding Rule 412(a)
Jones contends his counsel was ineffective “for failing to challenging [sic] the Court's ruling that a cell phone text message relates to sexual history or disposition under F.R.E. 412(a).” (ECF No. 1 at 11). This claim repeats the ineffective assistance of counsel argument raised in Jones' first claim for relief, and must be denied for the reasons stated supra.
7. Ineffective assistance of counsel regarding jury instruction
Jones maintains his counsel was ineffective for failing “to object when the court denied a request for dual role jury instruction for SANE nurse testimony.” (CV ECF No. 1 at 11). Jones is unable to establish any prejudice arising from this alleged error because he asserted on appeal that the Court erred in refusing to give the parties' stipulated “dual role” jury instruction regarding the testimony of the SANE nurse and the Ninth Circuit determined the Court's decision was not in error.
Accordingly, IT IS RECOMMENDED that the motion pursuant to 28 U.S.C. § 2255 at CV ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. This rule applies in proceedings under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. See 28 U.S.C. § 2253(c)(1). The undersigned recommends that, should the Report and Recommendation be adopted and, should Jones seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.