Opinion
CV-18-08244-PCT-JAT (ESW) CR-12-8082-PCT-JAT
02-28-2023
Willard John, Movant/Defendant, v. United States of America, Respondent/Plaintiff.
HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION (UNDER SEAL)
This Report and Recommendation is filed under seal because it quotes and describes in detail sealed documents and transcripts from Movant's underlying criminal case.
EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Willard John's (“Movant” or “Defendant”) “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “§ 2255 Motion”) (Doc. 1). For the reasons discussed herein, the undersigned recommends that the Court deny the § 2255 Motion (Doc. 1).
Citations to “Doc.” are to the docket in CV-18-08244-PCT-JAT (ESW). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR-12-8082-PCT-JAT.
I. PROCEDURAL HISTORY
On July 11, 2014, a jury convicted Movant of second-degree murder in violation of 18 U.S.C. §§ 1156 and 1111. (CR Doc. 261). The Court sentenced Movant to life in prison. (Id.). Movant appealed his convictions and sentences. (CR Doc. 262). On May 9, 2017, the Ninth Circuit affirmed Movant's conviction and sentence. (CR Doc. 322).
In October 2018, Movant timely filed the § 2255 Motion (Doc. 1) through counsel. The Government filed a Response (Doc. 17) on May 30, 2019. Movant filed a Reply (Doc. 27) on October 1, 2019. On February 28, 2020, with leave of Court, the Government filed a Sur-Reply (Doc. 33). Movant filed a Sur-Sur-Reply on March 16, 2020 (Doc. 35). Both parties requested that the Court hold an evidentiary hearing. The undersigned held a four-day evidentiary hearing on June 7, 2022 through June 10, 2022. The parties were directed to file post-hearing memoranda. (Doc. 80). Movant filed a “Closing Argument and Supplemental Memorandum of Law” (Doc. 106) on August 17, 2022. The Government filed its “Closing Argument and Response” on October 21, 2022 (Doc. 111), to which Movant filed a Reply on December 16, 2022 (Doc. 116).
II. LEGAL STANDARDS
Section 2255 provides a mechanism by which a federal inmate may move to vacate, set aside, or correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see also Davis v. United States, 417 U.S. 333, 344-45. To warrant relief, a movant generally must demonstrate the existence of an error of constitutional magnitude that had a substantial and injurious effect. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (extending Brecht harmless error standard to § 2255 motions). Relief is warranted only where a movant has shown “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
The § 2255 Motion presents six claims alleging that Movant's trial counsel provided constitutionally ineffective assistance.
“Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). Under the first prong, a defendant must show that a counsel's representation falls “below an objective standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel's performance falls within the wide range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “A reasonable tactical choice based on adequate inquiry is immune from attack under Strickland.” Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997).
With respect to the second prong, “Strickland asks whether it is ‘reasonably likely' the result would have been different.” Harrington v. Richter, 131 S.Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 696). “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland' s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Id. (quoting Strickland, 466 U.S. at 693, 697). “The likelihood of a different result must be substantial, not just conceivable.” Id. (citing Strickland, 466 U.S. at 693).
The court need not determine whether counsel's performance was deficient before examining whether prejudice resulted from the alleged deficiencies. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. (quoting Strickland, 466 U.S. at 697).
III. DISCUSSION
A. Factual Background
As recounted in one of the Court's orders in the underlying criminal case:
On the morning of March 19, 2013, Larson Williams (“Williams”) discovered Willard John (“Defendant”) and NJH (“Victim”) lying on the bed in their bedroom in a pool of blood.
First responders arrived and found Victim deceased from multiple stab and slash wounds. Defendant was found alive, but suffering from a still bleeding neck wound. Defendant was transported to hospital, underwent surgery, and survived. Later that morning, FBI Special Agent Stephen Hale (“SA Hale”) arrived at the scene, interviewed various people present, and collected evidence, including two samples of the bloody mattress Defendant and Victim were found lying upon. Later that day, SA Hale allowed Defendant's family to remove and destroy the bloody mattress.
Also on March 19, 2014, BIA Special Agent Auggie Belvado (“SA Belvado”) travelled to the hospital, collected evidence from Defendant, and photographed Defendant's injuries. On March 21 and [23], 2012, SA Hale travelled to the hospital and interviewed Defendant. Defendant was later arrested on suspicion of murder and, on April 11, 2012, indicted on a single count of first degree murder.(CR Doc. 188 at 2-3). When first responders arrived, the victim was in full rigor mortis, indicating that she had been dead for hours. Bloody scissors were found underneath the mattress that Movant and the victim were lying upon. The Government argued that Movant used the scissors to commit the crime. (CR Doc. 289 at 75). The Government asserted to the jury that the evidence “eliminates any claim that there was a third-party intruder who came in and killed [the victim] and then waited hours to cut [Movant's] throat. Doesn't make any sense. It's not consistent with the evidence.” (Id. at 74). The defense argued to the jury that “what's more likely is there's another weapon we never found. And it's a knife.” (Id. at 96). The defense told the jury that Movant “clearly did not do this” and “[w]hat makes sense is that someone else was in that room, maybe two other people. And they brutalized both of these folks[.]” (Id. at 105, 106).
B. Declarations and Evidentiary Hearing Testimony
Movant contends that his trial counsel, Joy M. Bertrand (“Attorney Bertrand”), provided constitutionally ineffective assistance. In support of his § 2255 Motion, Movant has obtained declarations from the following six individuals, all of whom testified at the June 2022 evidentiary hearing:
1. Attorney Bertrand. She has provided a declaration attached to the § 2255 Motion (Doc. 1-3) and a supplemental declaration attached to the Reply (Doc. 27-3). Attorney Bertrand testified at the evidentiary hearing on June 8, 2022 (Doc. 98 at 84-219).
2. James L. Trainum (“Mr. Trainum”), a criminal case consultant. Mr. Trainum has provided a declaration attached to the § 2255 Motion (Doc. 1-4). He testified at the evidentiary hearing on June 8, 2022 (Doc. 98 at 6-81).
3. Stuart H. James (“Mr. James”), a forensic scientist and bloodstain pattern analyst. Mr. James provided a declaration attached to Movant's Reply (Doc. 27-1). He testified at the evidentiary hearing on June 7, 2022 and June 8, 2022 (Doc. 101 at 108-238; Doc. 98 at 6-81).
4. Dan H. Cooper (“Mr. Cooper”), an Arizona-licensed attorney. He has provided a declaration attached to Movant's Reply (Doc. 27-2). Mr. Cooper testified at the evidentiary hearing on June 10, 2022 (Doc. 100 at 5-139).
5. Anjali Ranadive, MFS, JD (“Ms. Ranadive”), a forensic science specialist. She has provided a declaration attached to Movant's Reply (Doc. 27-4). Ms. Ranadive testified at the evidentiary hearing on June 9, 2022 (Doc. 99 at 5-82).
6. Linda Gushoney (“Ms. Gushoney”), a behavioral health technician and Apache-speaking member of the White Mountain Apache Tribe. Ms. Gushoney testified at the evidentiary hearing on June 9, 2022 (Doc. 99 at 84-103). A declaration from Ms. Gushoney was admitted into evidence as Exhibit 191.
The Government called one witness, Lydia Dosela (“Ms. Dosela”), at the evidentiary hearing on June 9, 2022 (Doc. 99 at 104-13). Ms. Dosela was Movant's Apache interpreter at trial.
C. Ineffective Assistance of Counsel Claims Presented in the § 2255 Motion
1. Alleged Ineffective Assistance for Failure to Retain a Competent Crime Scene Expert
During pretrial proceedings, Attorney Bertrand asserted that law enforcement's processing of the crime scene was deficient. In April 2014, Attorney Bertrand filed a “Motion to Dismiss Based on Destruction of Crime Scene Evidence” (CR Doc. 149). At the hearing, Attorney Bertrand called James Jarrett (“Mr. Jarrett”) to provide testimony as a crime scene expert. Upon the Government's oral motion, the Court struck Mr. Jarrett's testimony without prejudice to seeking to qualify Mr. Jarrett as an expert witness at trial. The Government denied the Motion to Dismiss. (CR Docs. 178, 188).
Movant's first claim asserts that Attorney Bertrand was constitutionally ineffective with respect to her decision to hire Mr. Jarrett. (Doc. 1 at 27). To support this claim, Movant relies on the declarations of Mr. Cooper and Mr. Trainum. As discussed below, the undersigned finds that Attorney Bertrand's decision to hire Mr. Jarrett was reasonable. The undersigned further finds that Movant has failed to show that there is a reasonable likelihood that the jury's conclusion would have changed if Attorney Bertrand hired a different individual, such as Mr. Trainum, to serve as a crime scene expert.
a. Attorney Bertrand Obtained the Assistance of Multiple Experts
“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. To that end, below is a summary of Attorney Bertrand's actions with respect to seeking the assistance of investigators and expert witnesses.
Attorney Bertrand was appointed to represent Movant on May 15, 2012. (CR Doc. 22). Approximately one month later, on June 14, 2012, Attorney Bertrand moved the Court for authorization of expert witness expenses for Justin Yentes (“Mr. Yentes”) of Arizona Investigative Services, explaining that Mr. Yentes would assist in finding and interviewing witnesses, procuring and reviewing documents, and any other investigative work needed to prepare the defense for trial. (CR Doc. 29). The Court granted the Motion on June 15, 2012. (CR Doc. 30).
On September 9, 2012, Attorney Bertrand moved for authorization of expert witness expenses for Mr. Jarrett (CR Doc. 40) to assist in determining whether the FBI properly processed the crime scene and what evidence should have been preserved by investigators. On October 2, 2012, the Court granted the motion. (CR Doc. 47).
On September 20, 2012, Attorney Bertrand moved for authorization of expert witness expenses for psychologist R.W. London, PhD. (CR Doc. 43). The Court denied the motion for failure to show that a local expert is unavailable. (CR Doc. 49).
On September 20, 2012, Attorney Bertrand moved for authorization of expert witness expenses for medical examiner Jeffrey Jentzen, MD as an expert witness to provide opinions on the victim's cause of death. (CR Doc. 42). Dr. Jentzen resides out-of-state, and the Court denied the motion for lack of a showing that a local expert is unavailable. (CR Doc. 48). On November 13, 2012, Attorney Bertrand renewed her request for expenses for medical examiner Jeffrey Jentzen, MD as an expert witness to provide opinions on the victim's cause of death. (CR Doc. 52). The Court granted the renewed request on November 27, 2012. (CR Doc. 63).
On November 13, 2012, Attorney Bertrand moved for authorization of expert witness expenses for psychiatrist Barry Morenz, MD. (CR Doc. 53). The Court granted the motion on November 15, 2012. (CR Doc. 54).
On February 11, 2013, Attorney Bertrand moved for authorization of expert witness expenses for neuropsychologist Marisa Menchola, PhD to assist in determining Movant's competency to waive his Fifth and Sixth Amendment rights when he gave statements to the FBI in March 2012. (CR Doc. 77). The Court granted the motion on February 21, 2013. (CR Doc. 87).
After Movant's trial, Attorney Bertrand moved for authorization of expert witness expenses for Brad Perron, a blood spatter expert, nunc pro tunc to June 27, 2014. (CR Doc. 243). The Court granted the motion. (CR Doc. 244).
b. Attorney Bertrand Called Mr. Jarrett as a Witness at Motion to Dismiss Hearing
On April 18, 2014, Attorney Bertrand filed the “Motion to Dismiss Based on Destruction of Crime Scene Evidence” (CR Doc. 149). The Motion stated:
Attorney Bertrand also filed a “Motion to Suppress Defendant's Statements” on April 18, 2014. (CR Doc. 150).
We will never know what happened to [the victim] and [Movant], because the evidence that would show us was destroyed by the Federal Bureau of Investigation. We risk, however, wrongfully convicting [Movant] of first degree murder, because the evidence from the crime scene - the
bloody mattress upon which both [the victim] and [Movant] were found -- was given away by the FBI to be burned.(Id. at 1).
We have no eyewitnesses to the attacks on [Movant] and [the victim]. [Movant] has no memory of what happened. We have no photos of the [Movant's] injuries to determine whether or not he had defensive wounds and if he was capable of slashing his own throat, placing the suspected murder weapon under the mattress, and then placed himself on the mattress, with his head hanging over the side.
The gravamen of this motion is this:
Did the FBI know that the mattresses released to the Defendant's family contained critical, potentially exculpatory evidence?
The answer to this question is “yes.” Therefore, the destruction of the primary crime scene evidence, with no effort made to recover any trace evidence from it, constitutes a due process violation that requires dismissal.(Id. at 2-3). In the Motion to Dismiss, Attorney Bertrand stated that she anticipates that Mr. Jarrett would testify that the mattresses were critical pieces of evidence at the crime scene and “will testify that any trained investigator - not to mention an experienced FBI agent -- would know that the mattresses could contain trace evidence, such as body fluids and hair and that such evidence could show that another person was, at least, present at the time of [the victim's] murder.” (Id. at 7).
On June 18 and June 19, 2014, the Court held a hearing on Attorney Bertrand's Motion to Dismiss and Motion to Suppress. Attorney Bertrand called Dr. Jentzen, Dr. Morenz, Dr. Menchola, and Mr. Jarrett as witnesses. (CR Doc. 203, 204). The Government called FBI Special Agent Stephen Hale (“Agent Hale”) and Special Agent Auggie Belvado (“Agent Belvado”). On direct examination, Mr. Jarrett testified that his professional history included
Ten years as a Green Beret, spec officer soldier intelligence analyst; approximately nine years sworn as LAPD, started with LAPD but nine years sworn service as law enforcement officer; seven years full time adjunct professor at Arizona State and assistant professor at Fort Hayes State University; the
American Shooting Academy since 1984 as a weapons and tactics instructor contract for a law enforcement spec ops forces as well as citizens.(CR Doc. 203 at 218-19). Mr. Jarrett also stated that he had been qualified as a crime scene reconstruction analyst “maybe 20” times. (Id. at 225). Mr. Jarrett explained that “this would be the first time as specifically directed at a crime scene. It has always been an integral part of what I do in reconstruction.” (Id.). After Mr. Jarrett's testimony, the Government moved to strike the testimony, stating
I want to make sure he's not qualified as an expert in this case and be able to say later on down the road that he was qualified as a crime scene expert when he has no evidence in ever serving as the individual making the decisions in a crime scene in a homicide investigation. He has not worked as a sworn law enforcement officer since 1993. He says at most that he responded to a half dozen homicide scenes prior to 1993. He's not qualified to render the opinions he gave in this case.(CR Doc. 204 at 35). The Court sustained the objection. However, the Court clarified that “at least for purposes of this hearing, and my ruling is only for purposes of this hearing, he does not qualify, and even if he did, I find that his testimony is really irrelevant to the issue before the Court.” (Id. at 36). The Court struck the testimony without prejudice to Attorney Bertrand seeking to qualify Mr. Jarrett at trial. (Id.). Attorney Bertrand did not call Mr. Jarrett as a witness at trial and did not select another individual to serve as a crime scene expert at trial.
A copy of Mr. Jarrett's curriculum vitae is filed at CR Doc. 40-1.
Movant asserts that Mr. Jarrett was “simply useless because he was completely unqualified and unable to render competent expert testimony” regarding the purported deficiencies in law enforcement's processing of the crime scene. (Doc. 1 at 27).
“The selection of an expert witness is a paradigmatic example of the type of ‘strategic choic[e]' that, when made ‘after thorough investigation of [the] law and facts,' is ‘virtually unchallengeable.'” Hinton v. Alabama, 571 U.S. 263, 274-75 (quoting Strickland, 466 U.S. at 690).
Here, during the evidentiary hearing on the § 2255 Motion, on June 8, 2022, Attorney Bertrand testified that she worked with Mr. Jarrett on another federal homicide case that settled before trial, explaining that
Mr. Jarrett, in that case, had been incredibly helpful in helping us distill what happened in that case given the crime scene evaluation. He had extensive experience with homicide investigations and with criminal investigations generally. And I knew him to be reliable and honest.
So when this case was developing, I asked that he be appointed to assist us in this case as well.(Doc. 98 at 89). At the June 8, 2022 evidentiary hearing, Attorney Bertrand stated that at the time she decided to utilize Mr. Jarrett's services, she knew that he previously “testified a lot” and had testified “as at least a crime scene reconstructionist in other matters[.]” (Id. at 168). The Government asked Attorney Bertrand “And you knew he had testified in another case I believe in front of Judge Snow for sentencing purposes, right?” (Id.). Attorney Bertrand replied “Yes. United States versus Talashoma.” (Id.). During his testimony at the Motion to Dismiss hearing, Mr. Jarrett testified that Talashoma was a homicide case and he was qualified the testify as a crime scene reconstructionist. (CR Doc. 204 at 31). Mr. Jarrett explained that he testified during the sentencing hearing where he “reenacted the homicide.” (Id.).
CM/ECF reflects that the case number for United States v. Talashoma is CR10-08149. The October 24, 2011 minute entry states that “James R. Jarrett is sworn and testifies” at the sentencing hearing.
As mentioned, the Court did not preclude Attorney Bertrand from attempting to qualify Mr. Jarrett to testify as an expert witness at trial. Attorney Bertrand did not call Mr. Jarrett at trial, explaining at the evidentiary hearing that if she did so and the Court struck Mr. Jarrett in front of the jury, it “would have been catastrophic.” (Doc. 98 at 96).
c. Attorney Bertrand's Selection of Mr. Jarrett Did Not Fall Below an Objective Standard of Reasonableness
i. Mr. Cooper, Movant's Purported Strickland Expert
The Ninth Circuit has explained that “[a]lthough the determination of whether counsel has performed deficiently is a mixed question of law and fact, . . . there is no requirement that expert testimony of outside attorneys be used to determine the appropriate standard of care.” LaGrand v. Stewart, 133 F.3d 1253, 1270 n.8 (9th Cir. 1998). In addition, the Supreme Court has cautioned against evaluating ineffective assistance claims based on generalized rules, noting that “[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89.
In support of this first claim, Movant references the declaration of Dan Cooper (“Mr. Cooper”). (Doc. 27 at 9). Mr. Cooper is an attorney who was admitted to the Arizona State Bar in 1977. (Doc. 27-2 at 1, ¶ 1). His declaration states that he has tried over “200 criminal cases to a jury; 42 of those were murder trials, and 9 of them were capital (i.e., death penalty) cases.” (Id.). The declaration states that Mr. Cooper is familiar with the standard for assessing the effectiveness of the performance of defense counsel under Strickland and has “a keen understanding of when forensic/scientific investigations are necessary to conform defense counsel's performance to an objective standard of reasonableness under prevailing professional norms.” (Id. at 3, ¶ 5). Mr. Cooper further states in his declaration: “I have summarized my knowledge and my experience in death penalty work because I believe that experience to be relevant to my opinions with respect to the constitutional effectiveness of counsel afforded [Movant] in this case.” (Id.).
Mr. Cooper's declaration states that after reviewing “the testimony from the pre-trial hearing of James Jerrett, . . . [i]t is clear from a brief review of Mr. Jarrett's CV that he was not qualified to (a) investigate or (b) testify at [Movant's] trial regarding crime scene investigation, reconstruction, or processing.” (Id. at 9, ¶ 23). Mr. Cooper states: “My opinion is that defense Counsel's selection of Mr. Jarrett to investigate and opine on the crime scene in [Movant's] case was objectively unreasonable under prevailing professional norms, and that her choice of such a clearly unqualified expert under these circumstances demonstrates an extraordinary degree of incompetence.” (Id. at 10-11, ¶ 28).
At the evidentiary hearing, the Government asked Mr. Cooper on cross-examination, with respect to any of the cases Mr. Cooper has consulted on, “[A]re you aware of a criminal trial lawyer being found ineffective for failure to call what's called a crime scene expert to simply tear apart law enforcement's crime scene processing.” (Doc. 100 at 85). Mr. Cooper stated “I am, but I can't remember the name of it. It wasn't my case. It was some-I can't remember. It was in Tucson. I can't remember the name of the case.” (Id.). In response to the Government's question whether he would be able to supplement the record with the case, Mr. Cooper stated, “I can look, but like I said, I'm not certain.” (Id.).
During cross-examination, the Government also asked Mr. Cooper “Are you aware that if you check Westlaw, [James Jarrett's] name will appear as an expert who has testified before on crime scene reconstruction in federal court?” (Id. at 86). Mr. Cooper stated “I've never checked.” (Id.). Mr. Cooper answered “no” in response to the question “Did you ask habeas counsel if there were any ex parte motions or retention of experts before providing your opinions?” (Id. at 90). Mr. Cooper also answered “no” in response to the question “Did you speak with Ms. Bertrand before providing your opinions?” (Id.). In addition, Mr. Cooper stated that he did not speak with Attorney Bertrand's investigator, Mr. Yentes. (Id. at 99).
ii. Movant has not Satisfied the Performance Prong of the Strickland Test
There is no dispute that Attorney Bertrand cross-examined Agents Hale and Belvado concerning the processing of the crime scene. See Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995) (“[W]hile the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense.”).
Attorney Bertrand recounted during the June 2022 evidentiary hearing that she cross-examined Agents Hale and Belvado at the Court's hearing on the Motion to Dismiss. (Doc. 98 at 166). On direct examination, Movant's counsel asked Attorney Bertrand “Agent Hale's testimony at the pretrial was almost like a deposition for the trial, right?” (Id. at 95). Attorney Bertrand stated that it was a “good warmup” and provided an opportunity to “better prepare [her] to cross-examine him[.]” (Id.). Attorney Bertrand also recounted that she consulted with blood spatter expert Brad Perron after the Motion to Dismiss hearing in preparation for the trial. (Id. at 105, 170). Attorney Bertrand stated “[t]hat is correct” when the Government asked her “And one of the things that [Brad Perron] did was help you to prepare your cross-examinations and your closing arguments regarding specifically the crime scene, right?” (Id. at 162).
At the evidentiary hearing, Mr. Cooper acknowledged that testimony elicited through cross-examination is evidence. (Doc. 100 at 86). The Government asked “How many times in a federal case have you actually presented a crime scene expert at trial?” (Id. at 81). Mr. Cooper stated “I believe two” and subsequently indicated “there might have been more . . . But those are the two more recent ones I remember.” (Id.). One of those cases was a ballistics case. (Id. at 82).
Movant asserts that Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008) supports his argument that Attorney Bertrand's selection of Mr. Jarrett constitutes deficient performance under Strickland. (Doc. 1 at 26). In Duncan, a capital case, the Ninth Circuit held that the defendant's trial counsel provided inadequate assistance by failing to obtain a serology expert to test the defendant's blood and present the results at trial. If trial counsel had done so, the jury would have heard evidence that there was a third-party's blood at the scene of the crime. Id. at 1240-41. The Ninth Circuit concluded that this evidence would have raised considerable doubt as to whether the defendant killed the victim, and that, as a result, the defendant might have escaped the death penalty. Id. In ruling in the defendant's favor, the Ninth Circuit observed: “Although it may not be necessary in every instance to consult with or present the testimony of an expert, when the prosecutor's expert witness testifies about pivotal evidence or directly contradicts the defense theory, defense counsel's failure to present expert testimony on that matter may constitute deficient performance.” Id. at 1235.
There are significant differences between Duncan and Movant's case. In Duncan, the attorney was demonstrably ill-informed about the field of serology. Id. at 1236. At the outset of his cross-examination of the government's serology expert, defense counsel told the expert, “You lost me.” Id. at 1235. Defense counsel then proceeded to ask the expert about hair evidence, even though serology involves the study of blood. Id. at 1235-36. The Ninth Circuit concluded that defense counsel “did not have the personal expertise in serology to make strategic decisions about how to handle the blood evidence on his own and he certainly was not qualified to undermine the State's case by simply cross-examining its experts without obtaining expert assistance himself.” Id. at 1236.
Here, unlike the defense counsel in Duncan, the record indicates that Attorney Bertrand was capable of “undermin[ing] the State's case by simply cross-examining” Agents Hale and Belvado. Id. Further, the issue in Duncan was the defense counsel's cross-examination of the State's serology expert. The Government did not call a crime scene expert at Movant's trial.
Attorney Bertrand was not objectively unreasonable for hiring Mr. Jarrett to serve as a crime scene expert. Further, Attorney Bertrand's performance fell within objective standards of reasonableness when she challenged the sufficiency of the crime scene processing by cross-examining Agents Hale and Belvado rather than introducing the testimony of a crime scene expert. The undersigned agrees with the Government (Doc. 17 at 24 n.6) that the purported issues with the crime scene processing were not beyond the common understanding of the jury and did not require an expert to aid the jury's understanding. The undersigned finds that Movant has failed to satisfy the first prong of the Strickland test with respect to Attorney Bertrand's selection of Mr. Jarrett.
d. Movant has not Satisfied the Prejudice Prong of the Strickland Test
The Court specifically found that even if Mr. Jarrett was qualified to give his opinions in support of the Motion to Dismiss, his opinions are irrelevant to whether the Motion to Dismiss should be granted. Therefore, Movant has not shown that the presentation of another expert's testimony instead of Mr. Jarrett's at the Motion to Dismiss hearing likely would have resulted in a different outcome.
i. Declaration from James Trainum
In support of his claim that the failure to call a crime scene expert at trial prejudiced him, Movant has provided a declaration from Mr. Trainum. (Doc. 1-4). Attached to his declaration is Mr. Trainum's curriculum vitae indicating that he worked as an officer for the Metropolitan Police Department in Washington, D.C. from 1983-2010. (Id. at 20). Since 2010, Mr. Trainum has worked as a private consultant in criminal case review. (Id.).
In his declaration, Mr. Trainum explains that he evaluated the investigation, interrogation, and subsequent confession in Movant's case. (Id. at 2, ¶ 2). Mr. Trainum concluded that the identification of Movant as a suspect at the beginning of the investigation “led to undue confirmation bias on the part of Agent Hale. This bias directly affected the way he viewed evidence, processed the crime scene, and the way he conducted his interrogations of [Movant].” (Id. at 4, ¶ 13). Mr. Trainum then details “several highly questionable decisions regarding processing the crime scene and evidence collection,” such as (i) not seeking or collecting evidence that “may have identified a suspect other than [Movant] as the perpetrator”; (ii) choosing “not to recover the sheet or pillowcase that covered the mattress and pillow on which [the victim] and/or [Movant] were laying”; and (iii) choosing “not to attempt to collect any latent prints or other trace evidence from the crime scene beyond swabbing for blood and taking a clump of hair from [Movant's] foot.” (Id., ¶ 14). The declaration further details numerous other aspects of the investigation that Mr. Trainum deems inadequate, which includes (i) failing to “thoroughly search the entire home as wells as the surrounding exterior (such as trash cans or bushes)”; (ii) failing to promptly submit evidence for forensic analysis; (iii) failing to submit the scissors to the medical examiner; and (iv) failing to identify and investigate any other potential suspect. (Id. at 5-7, ¶¶ 15-22).
Mr. Trainum testified at the evidentiary hearing on June 7, 2022 and June 8, 2022. (Doc. 101 at 108-239; Doc. 98 at 6-81).
Assuming that Mr. Trainum was available and willing to testify at Movant's trial, the Government could have challenged Mr. Trainum's testimony under Federal Rule of Evidence 702. Rule 702 requires that any expert testimony be reliable, based on scientific or other specialized knowledge, and help the trier of fact determine relevant issues. “A district court does not abuse its discretion when it refuses expert testimony where the subject does not need expert ‘illumination' and the proponent is otherwise able to elicit testimony about the subject.” United States v. Ortland, 109 F.3d 539, 545 (9th Cir. 1997).
It is noted that Mr. Trainum's declaration does not state that he was available and would have testified at trial in accordance with the opinions expressed in his declaration. Although Movant's counsel asked Mr. Trainum at the evidentiary hearing whether he could have provided the declaration in 2014 (Doc. 101 at 124), the record does not contain an explicit affirmation from Mr. Trainum that he would have agreed to testify at trial.
Here, at the evidentiary hearing, the Government asked Mr. Trainum:
Q. All right. Let's talk about your qualifications. You are not a psychologist?
A. I am not.
Q. You're not a psychiatrist?
A. Nope.
Q. You're not a social scientist?
A. No.
Q. You're not a behavioral analyst?
A. That's correct.
Q. All right. So you don't have any specialized education in any of these areas that you've talked about here today?
A. In those specific areas, no.
Q. All right. So you basically just read information about this and then you go into court and you talk about what you have read?
A. What I do is I study the police practices that have been developed based on the research, and that's what I talk about is how police have responded to this and what they consider to be the appropriate way to conduct these investigations.
Q. And you routinely offer these same types of opinions? I think you've already testified to that; is that correct?
A. I have offered these opinions in other cases, yes.
Q. And typically you are testifying about what you call quote/unquote “investigative failures”; is that right?
A. That's correct.
Q. And that's basically you looking through the entirety
of an investigation with the benefit of hindsight and basically critique the investigation from start to finish; is that a fair statement?
A. That's a very fair statement.(Doc. 101 at 204-05). Mr. Trainum confirmed on cross-examination that he has never spoken with the agents who were involved in the investigation. (Id. at 212).
ii. Declaration from Stuart James
Attached to Movant's Reply in support of his § 2255 Motion is a declaration from Mr. James (Doc. 27-1). Movant states that Mr. James has “identified numerous blood patterns that are inconsistent with the Government's theory of the case and demonstrate the Government's mishandling of the crime scene evidence.” (Doc. 27 at 11).
The declaration explains that Mr. James is a forensic scientist and bloodstain spatter analyst with James and Associates, Inc. in Fort Lauderdale, Florida. (Id. at 2, ¶ 1). Mr. James testified at the evidentiary hearing June 7, 2022 and June 8, 2022 (Doc. 101 at 108-238; Doc. 98 at 6-81). He explained that he has been a consultant since 1988. (Doc. 101 at 74).
In his declaration, Mr. James asserts that the “presence of another person or persons involved in this incident cannot be ruled out based on the bloodstain pattern evidence inside or outside of the residence.” (Doc. 27-1 at 7, ¶ 15). Mr. James then details his reasons for this conclusion. For instance, Mr. James takes issue with a witness' testimony at trial stating that there was a lack of footprints outside the home the morning of the incident due to “fresh” snow being laid down. Mr. James states that the
lack of blood tracks in the snow outside appears to lack any meaning based on research into the weather conditions (Exhibit B) which indicate there was no snow fall on the night of the incident (March 19, 2012) nor on the previous night.(Id. at 8, ¶ 15(b)). Exhibit B referenced above is a printout from the Farmer's Almanac's Weather History website. (Id. at 45). That printout explicitly states that the weather history information being provided is from Payson, Arizona (the closest available weather station to Cibecue, Arizona according to the report). At the evidentiary hearing, Mr. James testified that he has never been to Payson or Cibecue, Arizona and did not research how far those two locations are from one another. (Doc. 101 at 92).
Mr. James' declaration states that the overall handling of the
crime scene was the most careless I have seen in my 42 year career due to numerous factors including the lack of foot protection of law enforcement officers collecting evidence, bloody items stacked together on the bed and the couch, and the female victim rolled over on the bed and onto a bloodstain.(Id. at 9). However, at the evidentiary hearing, Mr. James stated that he is “not a crime scene investigator.” (Doc. 101 at 73). Mr. James also stated that it has never been his job to process a crime scene and collect evidence, explaining that he is “just there to assist them with the bloodstain pattern analysis.” (Id. at 74). In addition, Mr. James stated that as a blood spatter expert, he is unable to opine as to who committed a particular crime or how a specific injury occurred. (Id. at 75-76).
iii. Attorney Bertrand Reasonably Challenged the Adequacy of the Crime Scene Processing through Cross-Examination
Through Attorney Bertrand's cross-examination of Agents Hale and Belvado, the jury heard that:
(i) Agents decided not to collect a tooth flossing device, blankets, sheets, and pillows even though the items could possibly contain biological material, and Agent Hale agreed that “some of that biological material may not be visible to the naked eye.” (CR Doc. 288 at 14-20). Agent Hale acknowledged that a quilt with blood drops on it was not seized. (Id. at 31). Agent Belvado also stated on Attorney Bertrand's cross-examination that the blankets were not collected. (CR Doc. 286 at 229).
(ii) Attorney Bertrand asked Agent Hale:
Q. And we don't know because the blankets weren't seized, if there was anything other than blood on those blankets, right?
A. Correct.
Q. Hair, right?
A. Correct.
Q. Saliva?
Q. Broken nails?
A. Correct.
Q. Other bodily fluids, right?
A. Correct.
(CR Doc. 286 at 230-31).
(iii) Agents did not collect a pack of gum that was on the floor immediately before the bed on which the victim and Movant were found. Agent Hale responded “correct” to Attorney Bertrand's question “It looks like the gum might have a smear of blood on it, but other than that, looks to be on top of the blood; is that correct?” (CR Doc. 288 at 21).
(iv) Attorney Bertrand asked Agent Hale to confirm that no dusting for fingerprints was done. (Id. at 27). Agent Hale stated that dusting was not done because
we took several samples of the blood that was there. We also took what we believed to be the murder weapon, which was covered in blood, which we thought would also contain fingerprints of the killer. And I also have a cutout of the mattress where there's a hand print that lifted the mattress. And I was hoping there would be fingerprints retrievable from that.
(Id. at 27-28). Upon further questioning, Agent Hale stated that no fingerprints were recovered, and acknowledged that a coffee cup found at the crime scene may have had fingerprints but was not collected. (Id. at 28).
(v) Attorney Bertrand directed Agent Hale's attention to a photograph of the headboard at the crime scene, which was admitted into evidence and published to the jury, and asked Agent Hale “there's what look to be bloody finger marks . . . is that fair?” (Id. at 36). Agent Hale replied “Yes.” (Id.). Agent Hale acknowledged that the headboard was not tested for fingerprints, explaining “we didn't see any noticeable prints from this. You can have blood or oil or anything on your hand and smear it across a surface and not leave any fingerprints.” (Id.).
(vi) Agent Hale agreed when Attorney Bertrand asked him “footprints also can be used to identify someone like fingerprints can, correct?” (Id. at 37). Attorney Bertrand showed Agent Hale a picture of the crime scene floor, which was admitted into evidence and published to the jury, and asked Agent Hale “there's all kinds of prints on the floor; is that fair?” (Id. at 39). Agent Hale responded “Yes. Footprints.” (Id.). Attorney Bertrand asked Agent Hale to point out where he can see bare footprints in the photograph. (Id.). Agent Hale stated “It looks like there's one here, there might be one here. There could be extensive, say, toe prints in this area as well.” (Id.). Agent Belvado also stated that the photograph appeared to depict toe prints that were not lifted for a print. (CR Doc. 286 at 228-29).
(vii) Agent Hale stated “we didn't do a thorough search of every single room of the
house, every closet, every shelf or cupboard, but we did a cursory search of each one.” (CR Doc. 288 at 60).
(viii) Agent Hale stated that he “thought it was suspicious” that Movant's family requested to burn the mattress. (Id. at 63). Agent Hale stated that it is “their custom when someone dies. But it would have appeared more consistent had [the victim's] family requested that, no [Movant's].” (Id. at 64). Agent Hale also stated that blankets were burned along with the mattress. (Id. at 64-65).
(ix) Attorney Bertrand asked Agent Belvado “[L]uminol is something used on surfaces to find blood we can't see with the naked eye; is that true?” (CR Doc. 286 at 228). Agent Belvado responded “Yes,” and confirmed that luminol was not used upon further questioning by Attorney Bertrand. (Id.).
(x) Agent Belvado confirmed that investigators did not cover their shoes with booties when processing the crime scene and acknowledged that the booties “also keep you from tracking things out[.]” (Id. at 232). Attorney Bertrand then asked “And that was because you believed the crime scene was already contaminated?” (Id.). Agent Belvado responded “Yes, it was.” (Id.). Agent Belvado answered affirmatively to Attorney Bertrand's questions that investigators and others responding to the crime scene stepped around the evidence and stepped on the bed. (Id.).
(xi) In addition, Attorney Bertrand cross-examined forensic pathologist Dr. Ian Paul. After the examiner explained if scissor blades were dull enough, it would be “very difficult for that scissor to penetrate the skin,” Attorney Bertrand asked “And that means that you also can't draw a conclusion that her injuries were not caused by the scissors. They may have been caused by another object; is that correct?” (Id. at 74). Dr. Paul responded “That's correct, yes.” (Id.). Attorney Bertrand then suggested to Dr. Paul that the injuries may have been caused by a knife, to which Dr. Paul stated “Yes.” Upon further questioning, Dr. Paul also stated that a box cutter may have been one of two instruments used to cause the injuries. (Id.).
The undersigned concurs with the Government that Attorney Bertrand competently cross-examined Agents Hale and Belvado to cast doubt on the adequacy of the crime scene processing. As Mr. Cooper acknowledged, testimony on cross-examination constitutes evidence. Moreover, the Court instructed the jury that “opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all other evidence in the case.” See Wong v. Belmontes, 558 U.S. 15, 23-24 (2009) (reversing the Ninth Circuit's determination that prejudice was established because the evidence that the Ninth Circuit concluded that counsel should have presented to the jury was “neither complex nor technical” and “only required that the jury make logical connections of the kind a layperson is well equipped to make,” and stating that the jury did not need an expert). The undersigned finds that Movant has not shown that there is a reasonable probability of a different outcome if Attorney Bertrand called Mr. Trainum or another individual to serve as a crime scene expert at trial.
It is recommended that the Court deny Movant's first ineffective assistance of counsel claim.
2. Alleged Ineffective Assistance with Respect to the Court's Exclusion of YSTR DNA Report
As part of the investigation, fingernail clippings from the victim's left and right hands were taken. The Government had the fingernail clippings tested for DNA, along with DNA extracted from two buccal swabs from Movant and a bloodstain from the victim. At 4:00 p.m. on June 30, 2014 (the eve of trial), the Arizona Department of Public Safety emailed the Government the results from the YSTR DNA examination of those items (referred herein as the “YSTR DNA Report” or the “Report”). (CR Doc. 200-2 at 1-3). The Report states that the “YSTR DNA profiles from [the fingernail clippings] are mixtures of at least two male individuals” and that the major component of the mixture matches the YSTR DNA profile from Movant. (Id. at 2). The Report further states that neither Movant “nor any of his paternally related male relatives can be excluded as the contributor of the YSTR DNA.” (Id.). The Report concludes by stating that the “minor component of the mixtures is inconclusive due to insufficient YSTR DNA.” (Id. at 3).
The Government forwarded the Report to Attorney Bertrand less than hour after it was received. Attorney Bertrand then filed a Motion requesting a continuance of the trial, or in the alternate, the preclusion of use of the report at trial. (CR Doc. 200). The Motion states:
At 4:52, on the eve trial, the Defense was served with
the attached DNA report from the Government, dated June 30, 2014. That report states that the nail clippings from [the victim] show, inter alia, that no male, paternal relatives of the Defendant can be excluded from the DNA sample. (Report at 1) The report further states that the DNA contains the mixture of at least two males. (Id.) The Defense only has been served with the DNA analyst's report, not the raw data. The Defense has been given no opportunity to review this result with its own expert. At a minimum, the Defense would need to review and compare the following materials in relationship to this DNA testing:
The DPS case file and bench notes;
DPS' laboratory protocol;
The chain of custody and current disposition of evidence;
The software used by the analyst;
The macros;
The raw data files;
STR Frequency Tables;
Instances of unintended DNA or sample contamination;
Accreditation of lab and people in it; and
Lab personal, background, resumes, proficiency tests
For the Defense not to be able to review this data before trial amounts to forcing Defense Counsel to be ineffective in her representation of the Defendant. If the Court declines to continue the trial to allow the Defense to review and analyze this new disclosure, then the Defense would ask this Court to preclude its use at trial.1(Id. at 2-3).
Movant asserts that because the DNA evidence “supported the theory that another person committed the crime,” “asking for the report to be excluded in the alternative was clearly ineffective.” (Doc. 1 at 29-30). Movant asserts that “trial counsel's puzzling request to allow exculpatory evidence to be excluded begs the question of whether counsel even understood the contents of the report and its impact on the case.” (Id. at 30).
Movant also asserts that the exclusion of the report prejudiced his defense as the evidence that was excluded at trial counsel's request conclusively demonstrated another man's DNA was under the
victim's fingernails, which was likely present because [the victim] (who had defensive cuts on her hands) was fighting for her life against the perpetrator. Thus, trial counsel's failure to put exculpatory evidence in front of the jury-evidence that another person was at the crime scene-prejudiced [Movant] because the jury only had mere circumstantial evidence to weigh when evaluating the credibility of [Movant's] defense.Id.
Attorney Bertrand stated that at the June 2022 evidentiary hearing that she consulted “with lawyers who did death penalty defense” in deciding how to handle the disclosure of the Report. (Doc. 98 at 217). The record reflects that Attorney Bertrand's preference was to continue the trial so that she could obtain a DNA expert to review the Report and to possibly obtain independent testing of the sample. On July 1, 2014, she told the Court:
Given I've been handed a two-page report with conclusions like this, I haven't had the opportunity to talk to an expert to even determine which theory is more viable. There is a potential with this information that it's exculpatory. It clearly says in the conclusion there's two DNA contributors here. But it's a mixture. And those mixture cases are really hard to take apart, to take apart a mixture.
And I don't have an opportunity -- let's say it is exculpatory. I don't have an opportunity to explain to the jury why it's important to look at this DNA, what about this information is exculpatory. I don't have an expert to even be able to explain this to folks.
I get handed this, and even explain to them that there is -- when we usually see DNA tests come in, they say, I'm using this in general terms, one in a quintillion chance that it's someone other than this person. Here the report says there's a one in 35 chance it's not this person. Simply having an expert assist me and assist the jury in explaining how this DNA works, how these statistics work has been taken away from us.(CR Doc. 285 at 6-7). Attorney Bertrand also stated “I will stipulate to this Court, I was a political science major in college. I have a graduate degree with 13 hours of statistics and economics in it, and I am not competent to read this report. I need an expert to help me.” (Id. at 8). The Court asked “What if I just excluded all of this?” (Id.). Attorney Bertrand stated: “Then we don't get the opportunity to talk about it and its potentially exculpatory material. I have a suggestion if Court is going that direction, if the Court would like to hear it.” (Id.). Attorney Bertrand then stated:
My suggestion would be this, and I say this, but I also want to make a record very clear here, this does not mean I am in any way waiving my objection to this case going forward today if the Court decides that that's the most appropriate thing to do. I still think that we would be better served and under the Sixth Amendment, I would be best representing my client and competently representing my client if we had the time to talk with an expert.
However, if the Court chooses to go forward, I think the best way to remedy this problem is to not have the evidence come in in this report. And the report's hearsay anyway. Rather, to give an instruction to the jury that says: The Government disclosed late to the defense DNA evidence that could exculpate the defendant.
I think that that balances the scientific problems that I'm going to face going forward if I have to go forward this week with the fairness issue. It is a fair statement of the report. And it also acknowledges that I got this at ten to five last night.(Id. at 8-9). The Court denied Attorney Bertrand's motion to continue and excluded the report without Attorney Bertrand's requested jury instruction. (Id. at 17).
At the evidentiary hearing on June 10, 2022, the Government asked Mr. Cooper “I understand your position that there is an argument that this is exculpatory, but you would also agree that there are -- certainly the government would have argued that that was inculpatory with respect to [Movant], correct?” (Doc. 100 at 96). Mr. Cooper agreed, stating “Sure. In terms of the YSTR. . . . Yeah, absolutely.” (Id.). Mr. Cooper also agreed that “if an argument is made that [the victim] got DNA under her fingernails from scratching and clawing at whoever was killing her, that there's also an argument to be made that that was [Movant's].” (Id. at 97).
It is noted that Attorney Bertrand's supplemental declaration states: “I did not make a ‘strategic' or ‘tactical' decision to have the DNA report excluded from the evidence at trial.” (Doc. 27-3 at 4, ¶ 14). However, as discussed above, the record reflects that Attorney Bertrand's request to preclude the Report was conditioned on the Court's denial of her request to continue the trial. Attorney Bertrand indicated to the Court and states in her supplemental declaration that she needed the data underlying the Report and needed to obtain the assistance of an expert in order to interpret it. (Id. at 3, ¶ 11). To reiterate, in response to the Court's inquiry regarding exclusion of the Report, Attorney Bertrand advocated for an additional jury instructing stating that “The Government disclosed late to the defense DNA evidence that could exculpate the defendant.” (CR Doc. 285 at 9).
Moreover, reviewing an attorney's performance under Strickland involves an objective analysis. The Supreme Court has stated that:
Although courts may not indulge “post hoc rationalization” for counsel's decision making that contradicts the available evidence of counsel's actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a “strong presumption” that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.Richter, 562 U.S. 86, 109-10 (internal citations omitted). Accordingly, “[t]rial counsel's post-hoc explanation that his decision was based on a legal error is not dispositive, because Strickland ‘calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.'” Robertson v. Pichon, 849 F.3d 1173, 1188 (9th Cir. 2017) (quoting Richter, 562 U.S. at 110). “[A]dmissions of inadequate performance by trial lawyers are not decisive in ineffective assistance claims. Ineffectiveness is a question for the courts, not counsel, to decide.” Walls v. Bowersox, 151 F.3d 827, 836 (8th Cir. 1998) (internal citation omitted).
The undersigned finds that Attorney Bertrand's decision to request that the Court exclude the YSTR DNA Report if the Court would not continue the trial was “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Further, Movant has not shown that there was a reasonable probability of a different outcome if
Attorney Bertrand did not request exclusion of the Report if the Court would not grant a trial continuance. As the Government highlights, the Report cannot be viewed as having only exculpatory value. (Doc. 17 at 30). The Report explicitly states that the major component of the mixture from item #1B13L (left hand fingernail clippings) matches the YSTR DNA profile from item #1B10 (Willard John) at 12 loci and cannot be excluded at 4 loci. The major component of the mixture from item #1B13R (right hand fingernail clippings) matches the YSTR DNA profile from item #1B10 (Willard John) at 11 loci and cannot be excluded at 5 loci.(CR Doc. 200-2 at 1) (emphasis added). Although the Report also states: “Therefore, neither Willard John nor any of his paternally related male relatives can be excluded as the contributor of the YSTR DNA,” that statement does not exonerate Movant.
In addition, the YSTR DNA explicitly states that the “minor component of the mixtures is inconclusive due to insufficient YSTR DNA.” (Id. at 2). As mentioned, in the course of this § 2255 proceeding, Movant retained Anjali Ranadive to serve as a DNA expert. Ms. Ranadive testified at the June 2022 evidentiary hearing. On cross-examination, Ms. Ranadive testified that because the Report states that there is a mixture of at least two males, “it could be a mixture of three or four people that share different types[.]” (Doc. 99 at 36). The presence of a mixture of at least two males' DNA under the victim's fingernails does not exculpate Movant. Ms. Ranadive states in her declaration that YSTR testing is unable to determine the biological source of the DNA present and “cannot inform on the temporal placement of the DNA[.]” (Doc. 27-4 at 2-3, ¶¶ 6, 7). In addition, a jury could reasonably conclude that the presence of another male's DNA underneath the victim's fingernails corroborates Movant's statement to Agent Hale that “I did not catch my girlfriend [the victim] cheating on me, but people have told me that she isn't faithful. These rumors added more stress.” (CR Doc. 287 at 168).
It is recommended that the Court deny Movant's second ineffective assistance of counsel claim.
3. Alleged Ineffective Assistance for Failure to Conduct Independent Testing of Available DNA Evidence
Approximately a month before the parties received the YSTR DNA Report at issue in the previous section, the Arizona Department of Public Safety issued a report dated May 29, 2014 with the results from conventional autosomal DNA testing of numerous items (the “May 29, 2014 DNA Report”). (Doc. 1-5). The May 29, 2014 DNA Report states that the DNA profile from the scissors, “bookshelf headboard,” couch arm, end table, footprint, black t-shirt, and mattress matches the DNA profile from Movant. (Id. at 1). It further states that the DNA profile from the “blanket on couch” and fingernail clippings from the victim matches the DNA profile from the victim. (Id.). The May 29, 2014 DNA Report states that “[f]urther information may be obtained from [the victim's fingernail clippings] through YSTR DNA analysis.” (Id.).
Ms. Ranadive testified that conventional DNA testing is referred to as “autosomal DNA testing,” which looks “at genetic markers on different areas of the DNA molecule itself, and each of these genetic markers for this particular type of testing we get one type from our mother and one type from our father; and everybody, men and women, male and female, possess these types of DNA markers.” (Doc. 99 at 20). Ms. Ranadive testified that “YSTR testing looks at different areas only on the Y chromosome. So when we run a YSTR test, if we get results at all, we know that there has to be DNA from a male present because even in the sample that has a mixture of male and female DNA, the Y test will only see the DNA from the male.” (Id.).
In his third ineffective assistance of counsel claim, Movant asserts that his trial counsel was constitutionally ineffective for failing to seek DNA analysis of the victim's fingernail clippings, emphasizing that trial counsel “was aware of the existence of finger nail clippings in December 2012.” (Doc. 1 at 31). Attorney Bertrand's supplemental declaration states “I did not make a ‘strategic' or ‘tactical' decision to forego seeking additional and/or independent DNA testing of [the victim's] fingernail clippings.” (Doc. 27-3 at 3, ¶ 9). At the evidentiary hearing, Movant's counsel asked Attorney Bertrand “You did not make a strategic choice to not retain a DNA consultant or do any DNA testing; is that right?” (Doc. 98 at 113). Attorney Bertrand responded: “I did not intentionally ignore this evidence. I had concerns about requesting the evidence and having it come back as worse. But I did not make an intentional decision one way or another about pursuing the DNA evidence.” (Id.).
On cross-examination, the Government asked Attorney Bertrand if she still agreed with the statement in her declaration that she did not make any strategic or tactical decisions regarding the DNA evidence. (Id. at 175). Attorney Bertrand responded:
The blood evidence in this case was overwhelming. I did not think that the testing of anything from [the victim's] hands would show anything helpful. So I -- it didn't cross my mind to have it tested.
Whatever you want to call that is -- to me, that's the Court's determination as to what you want to call that. But the reality is there's a photo with her, and her hand is in his blood. There's another photo where they've rolled her, and her, now, right hand's in it. It never crossed my mind to have it tested, and if I thought it had any value, I would have. I had no reason not to.(Id.). “If you thought that the fingernail clippings would have exculpatory evidence, you would have asked to have them tested, correct?” (Id. at 178). Attorney Bertrand stated
It would have been something I would have considered.
There would have been some strategic trade-offs to that, but I
-- I never even considered it. . . . . I can say I did not see anything that prompted me to believe there was anything in her nails-under her nails other than her DNA and [Movant's].(Id. at 178-79). Attorney Bertrand stated that by independently testing the evidence, the results “could have been worse” as it “could have been consistent with only [Movant]. I did not know.” (Id. at 183). Attorney Bertrand then stated “it didn't occur to me to engage in that risk balancing because I did not think there would be anything there helpful.” (Id.). The Government asked “And that is also because, as I asked you earlier, you didn't see any evidence that would suggest that the perpetrator's DNA would necessarily be under her fingernails?”, to which Attorney Bertrand answered “I saw nothing on her hands other than blood.” (Id.).
The Government asked Ms. Ranadive at the evidentiary hearing whether there was a “time when it was common to test fingernail clippings as a general matter.” (Doc. 99 at 30). Ms. Ranadive responded that it “was almost exclusively in sexual assault cases.” (Id.). The Government then asked “[a]t some point did the routine testing of fingernails stop?” (Id.). Ms. Ranadive stated “yes” because
the number of times when anything probative was obtained from those fingernail clippings or scrapings was so minimal that when standards were readdressed at some point in time --I'm not certain when but it was in the two thousands -- the decision was made that it would not be a routine item.(Id. at 31). Ms. Ranadive agreed that it is “fair to say that it was rare” to find a second DNA profile underneath fingernails. (Id. at 32).
Strickland “mandates a ‘strong presumption' that counsel acted ‘for tactical reasons rather than through sheer neglect.'” Demirdjian v. Gipson, 832 F.3d 1060, 1066-67 (9th Cir. 2016) (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)). The undersigned agrees with the Government that Attorney Bertrand's decision to not pursue independent DNA testing was strategic. The record reflects that Attorney Bertrand reviewed the evidence and reasonably did not see anything that would trigger a risk analysis of whether to pursue DNA testing. “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). Viewing the matter without “the distorting effects of hindsight,” the undersigned finds that Attorney Bertrand acted reasonably under prevailing professional norms. See Strickland, 466 U.S. at 689.
As to the prejudice prong of the Strickland test, the discussion in the preceding section explains that a different outcome is not reasonably likely had the YSTR DNA evidence been introduced. Therefore, the fact that Attorney Bertrand did not pursue independent YSTR DNA testing had no prejudicial effect on Movant's case for purposes of the Strickland test.
It is recommended that the Court deny Movant's third ineffective assistance of counsel claim.
4. Alleged Ineffective Assistance for Failure to Investigate Third-Party Suspect Erick Thompson
In his fourth claim, Movant asserts that an individual named Erick Lou Thompson (“Mr. Thompson”) is a third-party suspect who Attorney Bertrand failed to investigate. (Doc. 1 at 33). Attached to the § 2255 Motion is a FBI FD-302 report (the “302 Report”) written by Agent Hale and dated March 24, 2012. (Doc. 1-2). The 302 Report states that Mr. Thompson “was interviewed at the White Mountain Apache Tribal Detention Center” and was “arrested on 03/20/2022, at 11:08 P.M., charged with Public Intoxication, Disobedience to the Court, Disorderly Conduct, and Escape.” (Id. at 1). The 302 Report indicates that Mr. Thompson could be contacted via a cell phone number, but Mr. Thompson's girlfriend “currently possess the cell phone.” (Id.). The 302 Report recounts information provided by Mr. Thompson during the interview. It states that on March 19, 2012 at approximately 7:30 a.m., Mr. Thompson, along with his brother Amos Thompson, Tubuku Lnu (last name unknown), and Aaron Browning
were walking northbound, toward Cibecue Road, when they passed five people exiting from the back door of [Movant's] house at 13 West Cibecue Road, Cibecue, Arizona. Of the five people, THOMPSON recognized LARSON WILLIAMS and his girlfriend. THOMPSON also thought he saw [Movant and the victim], along with another unknown man. THOMPSON was not sure whether it was [Movant and the victim], but all the people were older, probably in their 30's or 40's. THOMPSON thought there were three men and two women. The five people who exited the house walked southbound, and THOMPSON assumed they were going to the “can-house,” further to the south, to get some cans of beer. THOMPSON and his three associates continued walking northbound. As the four males passed by the Christian Church at the northwest corner of Cibecue Road and North Tessay Road, a Christian lady at the church asked if they wanted some work, to earn money. The males obliged, and the lady directed them to move some boards from the church, where there was a wake the night before, to her house, about two doors north of the church.
About 30 to 40 minutes later, as the three males were working, THOMPSON observed the five people return to the
house at 13 West Cibecue Road. About another 15 minutes later, a fire truck arrived at the house. THOMPSON saw two of the five people, who previously exited the house, speak with the fireman. Shortly thereafter, an ambulance arrived, and a police car. . . . THOMPSON's step-father walked by the church, and told the males there was a homicide at the house across the street, where [Movant] killed his girlfriend.(Id. at 2-3). The 302 Report states that Mr. Thompson “knew [Movant] by name, and was aware [Movant] lived in the house at 13 West Cibecue Road, but he did not associate with [Movant].” (Id. at 3). Attorney Bertrand's declaration states “I was aware of the existence of Erick Lou Thompson throughout the course of the defense investigation into the attack on [the victim and Movant]. Prior to trial, in the regular course of discovery, I received an FBI FD-302 Report dated March 24, 2012 from the government[.]” (Doc. 1-3 at 2, ¶ 4). The declaration further states that Attorney Bertrand did not do “any pre-trial investigation of Erick Thompson, his brothers, the statement Thompson gave to the FBI, or their potential connection to or responsibility for the attack on [the victim and Movant].” (Id. at ¶ 6).
At the evidentiary hearing, Movant's counsel asked Attorney Bertrand “[Y]ou did not direct Mr. Yentes to interview Mr. Thompson; is that correct?” (Doc. 98 at 135). Attorney Bertrand stated “That's not entirely accurate. We couldn't find him. We couldn't find Mr. Thompson.” (Id.). Attorney Bertrand explained that she disclosed Mr. Thompson as a potential trial witness and recalled emailing her investigator, Mr. Yentes, with the instruction to find Mr. Thompson. (Id. at 138). Mr. Yentes, however, could not find him. (Id.). Attorney Bertrand further explained that when she and Mr. Yentes were “up in Cibecue working the crime scene and looking at the crime scene, we asked if people knew who he was. And of the people we talked to, I don't believe any of them recognized him or could say where he lived or was living.” (Id. at 139). Upon further questioning by Movant's counsel, Attorney Bertrand clarified that this occurred within the month or two prior to trial and that she did not attempt to investigate Mr. Thompson prior to that. (Id. at 139).
Mr. Thompson is listed as a defense witness in the parties' Joint Witness List. (CR Doc. 189 at 2).
The undersigned does not find that Attorney Bertrand's performance fell below an objective standard of reasonableness with respect to Mr. Thompson. As reflected in the excerpt of the 302 Report above, Mr. Thompson stated he “thought” he saw the victim and Movant, but he “was not sure” it was them. (Doc. 1-2 at 2). The 302 Report also states that Mr. Thompson only knew Movant “by name,” and “did not associate” with Movant. (Id. at 3). The record reflects that Attorney Bertrand conducted a reasonable pre-trial investigation.
The undersigned further finds that Movant has not satisfied the prejudice prong of the Strickland test. Mere speculation or conclusory allegations are insufficient to establish prejudice. Movant has not alleged what Mr. Thompson would have said if he was interviewed and has not presented evidence showing that an investigation could have found him. See Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (finding that mere speculation that witness might have given helpful information if interviewed insufficient to establish ineffective assistance of counsel); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting ineffective assistance of counsel claim based on counsel's failure to interview or call alibi witness because petitioner provided “no evidence that this witness would have provided helpful testimony for the defense-i.e., [petitioner] has not presented an affidavit from this alleged witness”); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.1988) (no ineffective assistance based upon counsel's failure to call a witness where there was no evidence in the record that the witness would have testified); Villafuerte v. Stewart, 111 F.3d 616, 630 (9th Cir. 1997) (rejecting ineffective assistance of counsel based on alleged failure to investigate two individuals allegedly present at time of murder where the petitioner “presented no evidence that any amount of investigation could have found [the two individuals] in time for trial nor that further investigation would have produced anything of assistance to the defense. In fact, [the two individuals] did not testify at the hearing on [petitioner's] state habeas petition, either in person or by deposition. [Petitioner] has failed to show prejudice).
The undersigned recommends that the Court deny Movant's fourth ineffective assistance of counsel claim.
5. Alleged Ineffective Assistance for Alleged Failure to Effectively Address Movant's General Competency and the Voluntariness of his Purported Miranda Waiver
i. Competency Proceeding
As previously mentioned, Attorney Bertrand hired psychiatrist Barry Morenz, MD and neuropsychologist Marisa Menchola, PhD to assist in determining Movant's competency. On March 18, 2013, Attorney Bertrand filed a “Motion to Determine Competency.” (CR Doc. 93). The Motion recounts that Drs. Morenz and Menchola concluded that Movant was not competent to consent to the FBI's questioning of him. (Id. at 2-3). The Motion asserts that “The Defendant does not understand, inter alia, the concepts of ‘right' and ‘waiver.'” (Id. at 3). At the April 15, 2013 hearing on the Motion, the Court found by a preponderance of the evidence that Movant is mentally incompetent. (CR Doc. 104). The Court committed Movant to the custody of the Attorney General for treatment. (Id.). Movant was taken to the Federal Medical Center in Butner, North Carolina. Movant arrived at the Federal Medical Center on June 6, 2013 and stayed for approximately four months. Movant's primary evaluator at the Federal Medical Center was Dr. Bryon Herbel (“Dr. Herbel”). (CR Doc. 148 at 26). Dr. Robert Cochrane (“Dr. Cochrane”) also administered standardized psychological tests as part of Dr. Herbel's overall evaluation. (Id. at 13). On October 16, 2013, the Federal Medical Center sent the Court a Certificate of Restoration of Competency, which states that Movant “is able to understand the nature and consequences of the proceedings against him and to assist properly in his own defense.” (CR Doc. 129 at 2).
The Court set a competency hearing for January 22, 2014. On January 17, 2014, Attorney Bertrand filed a Memorandum regarding the upcoming competency hearing. (CR Doc. 125). The Memorandum explains that “[i]n today's conference with Counsel, Drs. Morenz and Menchola stated that, to be definitive, they would have to re-evaluate [Movant] to seek the extent, if any, of the Department of Justice's rehabilitative efforts.” (Id. at 2). The Memorandum then states: “If the Court would prefer to continue next week's hearing for them to conduct those additional evaluations, they would be happy to do so. Counsel anticipates, however, that the Court will want to proceed on January 22, 2014.” (Id.).
The Court held a competency hearing on January 22, 2014. (CR Doc. 148). At the beginning of the hearing, the Court asked Attorney Bertrand if she is requesting that Movant be reevaluated. Attorney Bertrand replied “No . . . because we're just going to be in this spiral consistently.” (Id. at 8). Attorney Bertrand stated that she did “not feel comfortable arguing one way or another for whether or not [Movant] is competent.” (Id. at 4). Attorney Bertrand explained that given the discrepancies between the conclusions of the doctors at the Federal Medical Center and Drs. Morenz and Menchola, she requested the hearing “so that we make absolutely sure, if we do set this for trial, that we've explored and confirmed [Movant's] competency.” (Id. at 5). Attorney Bertrand noted that Drs. Morenz and Menchola have concerns about Movant's reasoning ability, not whether Movant understands what he is charged with or understands “the vocabulary at a basic level of this case[.]” (Id.). Attorney Bertrand further commented that it is a
The parties and Court referred to Drs. Morenz and Menchola as the “Tucson doctors” at the hearing as both doctors are located in Tucson.
much more subtle discussion than simple does [Movant] know who is his lawyer and what he's charged with. That is why . . . I asked for this hearing. It is not because I'm necessarily contesting findings one way or another. . . . I feel like all I can do at this point is offer as much information as possible to the Court filed on us to make-to draw that conclusion.(Id. at 5-6). In closing, Attorney Bertrand told the Court:
Judge, the only thing I would note is that this is more than simply a statutory determination. This is a constitutional determination. It's a due process issue. So 18 U.S.C. 4241 guides us but as Washington versus Johnson discusses, and this is a Fifth Circuit case but it's instructive, and that's 90 F.3d 945 at 950, the test for determining competency is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of these proceedings.
And I don't think that -- I think it's real easy to get caught up in this thing. That's why I said we can go back and forth, well, I haven't talked to him lately, I haven't talked to him lately. We could be here for two years. Because the other side is always going to say I haven't talked to him lately.
Competence is a linear matter, and we still have holes in the Butner determinations, and that's where our problems is.
So I don't think it's -- I think here we have something more also than simply an IQ issue. We have this interface with verbal functioning that Dr. Menchola addresses.
So I'm not saying that my client just doesn't have the intellectual capacity to proceed. He has something wrong with his brain that gives him trouble, and everyone agrees with that. It's just -- has Butner -- and it's just a bizarre world to talk about. Has Butner fixed him enough to go to trial? I don't know that the evidence shows that.(Id. at 72). At the June 2022 evidentiary hearing, Attorney Bertrand explained that she “was weighing the additional delay” regarding whether to request another evaluation. (Doc. 98 at 189). Attorney Bertrand explained that Movant “had already sat for like six months at Butner by the time he came back, and I -- I had to weigh the return on a reevaluation and then a re-sending to Butner. He would be on this merry-go-round versus holding the hearing about his competency.” (Id.). Attorney Bertrand also acknowledged that there were no significant disagreements as to the underlying data, such as Movant's intellectual functioning. (Id.). On cross-examination, Attorney Bertrand agreed that she had no reason to believe that her “experts were going to suddenly change their opinions on his competency to stand trial by having [Movant] evaluated again.” (Id. at 190).
In his fifth ineffective assistance of counsel claim, Movant asserts that Attorney Bertrand's performance was constitutionally deficient when she failed to request another competency evaluation of Movant prior to the competency hearing.
On the Government's direct examination at the competency hearing, Dr. Herbel opined that Movant had sufficient reasoning ability to properly assist in his trial. (CR Doc. 35). Dr. Herbel also testified that because Movant “has a static condition,” he would not expect Movant's ability to understand certain legal concepts to change. (Id. at 41).
Dr. Morenz testified that he diagnosed Movant as having borderline intellectual functioning. (Id. at 49). Dr. Morenz further testified that Movant has executive functioning deficits, explaining that Movant “understands things at a very concrete level but in terms of sort of thinking through problems, you know, anticipating what he might need to do in the future seemed to be somewhat limited.” (Id. at 50). Dr. Morenz also stated that executive functioning deficits resulting from frontal lobe issues cannot be repaired. (Id. at 51).
Dr. Morenz stated that the conclusions of Drs. Cochrane and Herbel are “fairly consistent with what [Dr. Morenz] saw of [Movant] on January 3rd . . . .” (Id.). Although Dr. Morenz stated that he is “limited” in what he can say because he has not seen Movant in over a year, Attorney Bertrand elicited testimony from Dr. Morenz in which Dr. Morenz stated that Drs. Cochrane and Herbel acknowledge that abstract thought is an area that Movant “would have more difficulty with.” (Id. at 52). Dr. Morenz stated: “Despite their considerable work with him, they, I think, continue to have the opinion that those areas would be difficult for [Movant].” (Id.). Dr. Morenz agreed that “even in the Butner analysis [Movant's] still struggling with the current charge and the understanding of lesser charges and those kinds of concepts.” (Id. at 53).
On direct examination, Dr. Menchola testified that on psychological testing, Movant displayed “some significant executive function impairment.” (Id. at 59). Dr. Menchola also discussed the type of competency test used by Drs. Cochrane and Herbel, and explained her concerns that (i) the test did not adequately account for Movant's cultural background and (ii) the test may not detect “more subtle impairments in rational abilities.” (Id. at 61). Attorney Bertrand then elicited testimony from Dr. Menchola in which Dr. Menchola opined that a person may be incompetent to proceed to trial regardless of the results of the type of competency test that was given to Movant at the Federal Medical Center. (Id.). Dr. Menchola testified that the Federal Medical Center report finding Movant competent did not address all of her concerns. (Id. at 62-63). While the report satisfied her concern regarding Movant's factual understanding, Dr. Menchola testified that she still had concerns regarding Movant's ability to engage in rational decision-making about his case. (Id. at 63). Dr. Menchola testified that without knowing the etiology of the problem, “it's really hard to know whether those functions could be restored or not.” (Id. at 64-65).
Given that Drs. Morenz and Menchola testified that they had concerns with Movant's rational thinking abilities and Dr. Morenz indicated that executive functioning deficits resulting from frontal lobe issues cannot be repaired, Attorney Bertrand reasonably concluded that it was not likely that their opinions would change if they re-evaluated Movant. Accordingly, (i) it was not objectively unreasonable for Attorney Bertrand to decide to move forward with the competency hearing based on the existing evaluations rather than cause further delay by requesting that Movant be re-evaluated and (ii) there is not a reasonable likelihood of a different outcome had Attorney Bertrand requested that Drs. Morenz and Menchola re-evaluate Movant. It is recommended that the Court deny the portion of Movant's fifth claim asserting ineffective assistance in connection with Movant's competency proceeding.
ii. Motion to Suppress Movant's Statements
On April 18, 2014, Attorney Bertrand filed a “Motion to Suppress Defendant's Statements.” (CR Doc. 150). In the Motion to Suppress, Attorney Bertrand argued that (i) the FBI's entry into Movant's hospital room violated Movant's Fourth Amendment right to privacy and (ii) Movant was not competent to waive his right to counsel or his right to remain silent when Movant participated in FBI questioning. The Court held an evidentiary hearing on the Motion to Suppress on June 18 and 19, 2014. (CR Docs. 203, 204).
To support the argument that Movant was not competent to waive his rights, Attorney Bertrand called as witnesses Drs. Jentzen, Morenz, and Menchola. Agents Hale and Belvado testified on behalf of the Government.
On direct examination, Agent Hale stated that there are approximately 25 prior police reports that involved either or both Movant and the victim. (CR Doc. 203 at 65). At the end of the hearing, the Court noted that while the doctors opined that Movant “somehow couldn't appreciate the subtleties of what he was being asked to waive but he had an advantage that not every first-timer has when confronted with these. Your client had been there before where he had made these waivers, and he acknowledged that he has. So certainly he had some prior education on this subject even before this occasion.” (CR Doc. 204 at 39).
The Court stated that the Court's impression of Agent Hale on the witness stand was that “he's a fairly jovial” and “agreeable type of fellow.” (Id. at 41). The Court stated Apparently, as I remember, he said no, I don't want to sign it now, and then you said the agent said, well, I'm going to go ahead with my questions. Why couldn't the same will that he demonstrated in saying I'm not going to sign it now permitted him to say I'm not going to answer any questions now either?(Id. at 47).
In its Order denying the Motion to Suppress, the Court stated that even if Movant had both a subjective and objectively reasonable expectation of privacy in his commercial, albeit “private,” hospital room, the Court cannot find a Fourth Amendment violation where Movant consents to Agent Hale's presence. (CR Doc. 188 at 13). The Court recounted there is no evidence suggesting that Movant ever asked Agent Hale to leave or otherwise revoked consent. The Court therefore denied the Motion to Suppress with respect to a Fourth Amendment violation.
As to the argument that Movant was not competent to waive his Miranda rights, the Court found that Drs. Morenz and Menchola were qualified to provide their opinions, but ascribed limited credibility to the opinions because they lacked meaningful foundation and were formed too remotely to be probative. (Id. at 14-15). The Court noted that Movant adduced “no evidence suggesting that SA Hale used coercive interrogation tactics such that Defendant's statements were anything but voluntary.” (Id. at 16). The Court, however, found Agent Hale “fully credible” and further found that the “tape and transcript of the March 23 interview do not indicate that SA Hale used “any inherently coercive interrogation techniques” when interviewing Movant. (Id. at 17). The Court recounted:
SA Hale spent approximately 45 minutes conversing with Defendant prior to the March 21 interview in order to establish Defendant's ability to understand and answer questions. SA Hale stated that Defendant appeared to have greater competency and understanding than many of the tribal members he has interviewed in the past. During the interviews, SA Hale asked simple and often open-ended questions. SA Hale used simple language, went slowly, explained questions and concepts, and kept the interviews relatively short. SA Hale did not volunteer incriminating details of the crime, press for answers when Defendant expressed a lack of knowledge, or persistently rephrase questions when Defendant provided a noninculpatory answer. SA Hale repeatedly informed Defendant that he did not have to answer questions. At the March 21 interview, SA Hale did not demand that Defendant sign a written waiver after Defendant inquired whether Defendant could sign the written waiver later. In sum, nothing in the record suggests that SA Hale sought to take advantage of Defendant's weakened condition.
Turning to Defendant, SA Hale testified that during both interviews, Defendant was coherent, generally unemotional, and responsive to the agents' questions, answered without hesitation, and did not appear impaired by medications. Defendant had previously had numerous visitors to his hospital room and had a pile of written notes stacked next to his bedside, indicating that Defendant had been communicating with others. Defendant communicated with both head nods and shaking, written notes, and, at the March 23 interview, whispers. Defendant did not ask to end the interviews despite being advised by SA Hale that he could. Defendant expressed understanding of his rights and, furthermore, the record establishes that Defendant was no stranger to law enforcement and had been read Miranda rights on many previous occasions. During the March 21 interview, Defendant specifically asked SA Hale to return once Defendant was physically able to express himself verbally. Additionally, Defendant expressed his will to sign the March 21 written waiver at a later date, but nonetheless chose to continue speaking with SA Hale. Defendant also volunteered material details-such as the fact that the murder weapon was scissors-without prompting or suggestion from SA Hale.
Additionally, at the end of the March 21 interview, Defendant even specifically asked SA Hale for the whereabouts of Defendant's cellphone. To facilitate the return of his cellphone, Defendant drew a detailed sketch of his phone from memory, including a unique identifying mark. Displaying recollection of the previous interview, on March 23 Defendant again inquired about his cellphone.
Although Defendant was in the hospital, medicated (to an unknown extent), and recovering from trauma and pain, the Ninth Circuit has held that a defendant can voluntarily waive his Miranda rights even when he is “in the hospital, on medication, and in pain.” George, 987 F.2d at 1430. Moreover, Courts have consistently found a defendant's statements voluntary in circumstances more questionable than these. See, e.g., California v. Beheler, 463 U.S. 1121, 1124-25 (1982) (statements upheld where defendant was interviewed while intoxicated and emotionally distraught); United States v. Miller, 84 F.2d 1028, 1032 (9th Cir. 1993) (finding that “mere emotionalism and confusion” do not render waiver involuntary); United States v. Martin, 781 F.2d 671, 673-74 (9th Cir. 1985) (upholding statements where the defendant was in pain and under the influence of Demerol and pain killers when interviewed); United States v. Rodriguez-Rodriguez, 393 F.3d 849, 55 (9th Cir. 2005) (statements voluntary where defendant was suffering from mild to moderate heroin withdrawal); United States v. Lewis, 833 F.2d 1380, 1382-83 (9th Cir. 1987) (upholding interview of the defendant in the prison hospital one day after the defendant underwent surgery).
Considered all together, the various factors here (including Defendant's weakened mental and emotional state) do not suggest that SA Hale overbore Defendant's will during either the March 21 or March 23 interviews. The Court finds that Defendant had the necessary competency to, and did, in fact, knowingly and voluntarily waive his Miranda rights. Accordingly, the Court denies Defendant's Motion to Suppress with respect to a Fifth and Sixth Amendment Miranda violation.(Id. at 18-19).
On appeal, Movant challenged the Court's ruling on the Motion to Suppress. The Ninth Circuit rejected the challenge, stating:
The district court did not clearly err in determining that, although [Movant] was unable to speak when the agent questioned him, John was alert and oriented during the time of the interviews. [Movant's] doctor testified that [Movant] was alert and oriented on the days of the interviews. The agent testified that, before he questioned [Movant], he asked the nurse what medications [Movant] was taking and the nurse said [Movant] was not taking any medications that would alter his thinking or make him sleepy-that he was fully able to communicate. The agent also testified that [Movant] appeared alert and coherent during the interviews. The agent testified that [Movant] “was writing notes” and, “although he couldn't speak, [they] were communicating just fine without any problems.”[ ] Thus, given these facts, we cannot conclude that the district court erred in finding that [Movant's] statements to the agent were made voluntarily; that his will was not overborne by the circumstances surrounding the confession. See Dickerson, 530 U.S. at 434.(CR Doc. 322-2 at 2-3) (footnote omitted).
Movant asserts that Attorney Bertrand was constitutionally ineffective with respect to the Motion to Suppress in several ways. First, Movant asserts that Attorney Bertrand erred by failing to retain an interrogation technique expert “to highlight the numerous deficiencies in Agent Hale's interrogation of [Movant].” (Doc. 1 at 39). Movant argues that “[e]xpert testimony like the testimony provided in the Trainum Dec. could have and should have been presented to the Court.” (Id.). Next, Movant asserts that Attorney Bertrand “omitted key facts from the Motion to Suppress demonstrating the coercive nature of the interrogations.” (Id.). Finally, Movant argues that Attorney Bertrand's cross-examination of Agent Hale at the evidentiary hearing was deficient. (Id.). Movant states that Attorney Bertrand “failed to highlight [Movant's] low IQ, how he likely did not understand what Mr. Hale was asking him, and how [Movant] frequently differed [sic] to Agent Hale during the interrogation.” (Id.).
At the end of the Motion to Suppress hearing, Attorney Bertrand stated to the Court that Movant was “not free to leave, not able to leave if he wanted to, and Agent Hale confirmed that. He said, yeah, he couldn't have left.” (CR Doc. 204 at 38). Attorney Bertrand elaborated as follows:
So Agent Hale, who I think we can all agree is, you know, an imposing size, he's a big guy, comes in. We don't know what nurses he confirmed with, what actual medical state the nurses told him he was in, because he didn't remember that. There's no notes of it. There's no notes indicating that it was approved. And here's [Movant] lying in a hospital bed connected to I.V.s. We know that from the medical records where he's getting at least Ativan and morphine, recovering from near death, unable to talk at first, and being expected to fully appreciate what he's giving away by talking, if he talked at all.
We also don't even know what he said because the first conversation wasn't recorded. And the conversation was long. Agent Hale talked with him for 30, 40 minutes before he even presents the consent to search form. Doesn't present the Miranda form then. Another 30 minutes goes by where they talk some more. We don't know what that conversation was about. We don't know the nature of it. We don't know even the tone of Agent Hale's voice. We don't know what [Movant] was doing because it wasn't videoed. We don't know if he was closing his eyes. We don't know if he was shaking his head or saying go away. And so we have to rely on what the doctors tell us here.(Id. at 38-39). Attorney Bertrand argued to the Court that the circumstances in which Agent Hale interviewed Movant was an “inherent coercive environment that make these statements involuntary.” (Id. at 42).
“[S]trategic decisions-including whether to hire an expert-are entitled to a ‘strong presumption' of reasonableness.” Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (Richter, 562 U.S. 86, 104 (2011)). “The test is not whether another lawyer, with the benefit of hindsight, would have acted differently, but whether ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 687, 689).
Movant has not shown that Attorney Bertrand's failure to hire an interrogation expert constitutes an error in judgment that falls below objective standards of reasonableness. The undersigned finds that Attorney Bertrand's advocacy of the Motion to Suppress, including her cross-examination of Agent Hale at the hearing, fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
In addition to arguing that this claim is meritless, the Government also asserts that the claim is precluded because the Ninth Circuit concluded on appeal that Movant's statements to Agent Hale were made voluntarily and that Movant's will was not overborne by the circumstances surrounding the confession. (Doc. 17 at 38-39) (citing United States v. John, 683 Fed.Appx. 589, 592 (9th Cir. 2017)). The Government notes that appellate counsel claimed and described 50 alleged instances of coercion by Agent Hale. (Id. at 39) (citing C. A. No. 15-10043, Opening Brief).
Further, Movant has not shown prejudice from Attorney Bertrand's alleged deficient advocacy of the Motion to Suppress. It is recommended that the Court deny Movant's fifth ineffective assistance of counsel claim in its entirety.
6. Alleged Ineffective Assistance for Presenting Inconsistent Defenses
Movant's final ineffective assistance of counsel claim presented in the § 2255 contends that Attorney Bertrand “loosely presented two conflicting defense theories to the jury. The prominent defense was that [Movant] did not commit the crime. The other defense, which was never fully formed or explained to the jury, appears to be an insanity defense.” (Doc. 1 at 40). Movant states that Attorney Bertrand “referenced ‘delirium tremens' or ‘hallucinations' on at least four more occasions throughout [Movant's] trial, but never fully fleshed out or explained to the jury how the hallucinations fit into her defense of [Movant]. (T.T. 7/2/14 at 230:11-13, 230:18-20, 293:11-14; T.T. 7/8/14 at 794:23-24).” (Id.).
As the Government correctly observes, Movant's first two citations to the record above (T.T. 7/2/14 at 230:11-13, 230:18-20) are actually to the Government's direct examination of Dr. Burke DeLange, who is the surgeon who treated Movant at the hospital. The Government asked Dr. Burke: “At any time during your care of [Movant] between March 19th and March 23rd, 2012, did you see any symptoms of delirium tremens or hallucinations?” and “You don't remember seeing anywhere in the medical records that he reported any history of hallucinations or delirium tremens, correct?” (CR Doc. 286 at 35).
The third citation to the record above (T.T. 7/2/14 at 293:11-14) is Attorney Bertrand's cross-examination of Movant's brother, McDaniel John. Below is an excerpt of that cross-examination:
Q. “Now you said [Movant and the victim] would fight when they drank?
A. Yes.
Q. And but the night that you saw them, you didn't see them drinking?
A. No.
Q. What about the day before?
A. I don't know about that, because I just saw them that first time that night they stopped by. They ate over there.
Q. So they came over to your place to eat?
A. Yes.
Q. And they were there about what, would you say, two, three hours with you?
A. Yeah. Probably like two or three hours. They went back around 11:30 or 10:30.
Q. And they weren't fighting?
A. No.
Q. But [Movant] was acting a little strange?
A. Kind of, I don't know, he was sober though, but I think he was like hallucinating.
Q. What made you think that [Movant] was hallucinating?
A. Because he's been drinking then probably, or the alcohol is getting in the way, I guess.
Q. But he wasn't drinking?
A. His system. But he was sober, though.
Q. Okay.
A. Yes.
Q. And in the past, had [Movant], when he sobered up, if you know, hallucinated?
MS. SAMPSON: Objection, relevance.
THE WITNESS: Yes.
THE COURT: Overruled.(CR Doc. 286 at 97-98) (emphasis added).
The final citation (T.T. 7/8/14 at 794:23-24) is to Attorney Bertrand's redirect examination of Dr. Morenz where Attorney Bertrand asked Dr. Morenz if Movant's “medical history included in the past having delirium tremens?” (CR Doc. 288 at 155). The Government objected to the question and the Court sustained it. (Id. at 156).
Attorney Bertrand mentioned delirium tremens in her opening statement when discussing Movant's statements to the FBI. (CR Doc. 286 at 20-21). At the evidentiary hearing, Attorney Bertrand stated “no” when asked on direct examination “Was it your intent to suggest that [Movant] may have been suffering from delirium tremens and therefore committed this attack while incapacitated medically?” (Doc. 98 at 157). When asked to explain her intent when introducing the concept of delirium tremens to the jury, Attorney Bertrand stated:
As I recall, it came up in the context of whether or not [Movant] had been drinking regularly. He - [Movant and the victim] had extensive histories with alcohol abuse. Both of them had previously, I believe, been found -[Movant] for sure, but I think [the victim] as wel1l -- in states of delirium tremens. And what was important here is that --and this goes back to Agent Hale's questioning of [Movant]. In the questioning in one of the two statements, he says that [Movant] admitted to drinking 30 beers, 3-0 beers that day. There was no alcohol in [Movant's] system in the medical records, and if he had been severely detoxing off of alcohol, as opposed to had sustained sobriety, there would have been likely these delirium tremens again. I don't recall it being used in a different context by the defense. But it's consistent with [Movant's] brother, I believe, saying he saw [Movant] and [the victim] earlier on the day of the murder and they were not drinking. (Id. at 156).
Attorney Bertrand did not discuss delirium tremens or hallucinations in her closing argument. (CR Doc. 289 at 83-107). The undersigned does not find that Attorney Bertrand's brief reference to delirium tremens in her opening statement or line of questioning when cross-examining McDaniel John were errors in judgment falling below objective standards of reasonableness. The record reflects that Attorney Bertrand presented the defense that Movant was not the perpetrator. The record does not reflect that Attorney Bertrand presented “inconsistent defenses.” Movant also has failed to satisfy the prejudice prong of the Strickland test. It is recommended that the Court deny Movant's final ineffective assistance of counsel presented in the § 2255 Motion.
D. Movant's Assertion of Cumulative Error
In his § 2255 Motion, Movant asserts that the “court must consider not only individual errors of counsel, but also the cumulative effect of those errors.” (Doc. 1 at 25) (emphasis in original). The Ninth Circuit has stated that “[w]hen an attorney has made a series of errors that prevents the proper presentation of a defense, it is appropriate to consider the cumulative impact of the errors in assessing prejudice.” Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998). Here, however, the undersigned has not found any instances in which counsel performed deficiently under Strickland or any related prejudice from any single alleged error. Accordingly, the undersigned finds that Movant has not shown cumulative prejudice.
IV. THE GOVERNMENT CORRECTLY ASSERTS THAT ALL NEW CLAIMS RAISED IN MOVANT'S REPLY (Doc. 27) AND MOVANT'S CLOSING ARGUMENT AND SUPPLEMENTAL MEMORANDUM OF LAW (Doc. 106) SHOULD BE DISREGARDED AND MAY ALTERNATIVELY BE DENIED AS MERITLESS
The rules governing a proceeding under 28 U.S.C. § 2255 provide that a § 2255 motion must, among other items, “specify all the grounds for relief available to the moving party” and “state the facts supporting each ground.” Rule 2(b), Rules Governing Section 2255 (emphasis added).
Movant has been represented by counsel since the inception of this § 2255 proceeding. October 1, 2018, Movant's counsel filed the § 2255 Motion (Doc. 1). The section labeled “Grounds for Relief” contains the six ineffective assistance of counsel claims discussed in the preceding sections, along with an assertion that the court must consider the cumulative effect of Attorney Bertrand's alleged errors. Movant recounts those claims at the beginning of his Reply:
Among other things, [Movant] demonstrated that his counsel was ineffective because his counsel (i) failed to retain a competent crime scene expert or even present any crime scene expert at trial, (ii) moved to exclude a DNA report showing the victim had an unknown male's DNA profile under her fingernails, (iii) failed entirely to interview one of only a handful of potential third-party suspects who made false statements to the FBI on the morning of the crime and who admitted being near the crime scene, (iv) failed to undertake any DNA testing of available evidence, (v) failed to investigate previous stabbing incidents on the property where this incident occurred, and (vi) failed to adequately argue [Movant's] lack of competency to grant a Miranda waiver or stand trial.(Doc. 27 at 1-2). At the end of Movant's Reply, in support of his cumulative error argument, Movant again recounts those same six claims:
Taken together, it is clear that trial counsel's (i) failure to retain a competent crime scene expert, (ii) failure to seek independent testing of available YSTR DNA evidence, (iii) argument that potentially exculpatory DNA evidence should be excluded from trial, (iv) failure to investigate third-party suspects, (v) failure to properly present and argue [Movant's] competency and the voluntariness of his alleged Miranda waiver, and (vi) presentation of inconsistent trial defenses, create a reasonable probability that, but for the cumulative effect of the errors, the result of [Movant's] trial would have been different.(Doc. 27 at 20-21). Like the § 2255 Motion, the body of the Reply only alleges that Attorney Bertrand failed to investigate Mr. Thompson. The Reply states:
The Government argues that trial counsel's decision not to investigate or interview Erick Thompson-who was one of only a small handful of legitimate third-party suspects-was reasonable because trial counsel “knew what Thompson was going to say” and because the FBI elected not to investigate Thompson further. Response at p. 34. Neither of the Government's later-manufactured reasons for why trial counsel did not interview Thompson are sufficient to somehow transform trial counsel's failure into a “strategic decision” that falls within the range of reasonableness.(Doc. 27 at 16). However, the Government observes that the section of the Reply discussing the claim related to Mr. Thompson also states “Furthermore, trial counsel failed to investigate two prior stabbing incidents that occurred on [Movant's] and [the victim's] property within the year and half prior.” (Id. at 17). To the extent that this is intended to be a new claim, the Government is correct that it should be disregarded as improperly raised in a Reply. Moreover, it is without merit as discussed below.
Movant filed his “Closing Argument and Supplemental Memorandum of Law” (Doc. 106) on August 17, 2022. The Government also correctly observes (Doc. 111 at 15) that the brief raises new claims. The following claims contained in the brief are not set forth in the § 2255 Motion: (i) ineffective assistance of counsel for Attorney Bertrand's failure to hire or consult with a DNA expert (Doc. 106 at 12-15); (ii) ineffective assistance of counsel for Attorney Bertrand's failure to retain a bloodstain pattern expert for trial (Id. at 47-57); (iii) ineffective assistance of counsel for Attorney Bertrand's failure to use the admitted DNA evidence indicating that the victim's DNA was not on the scissors to “contradict the Government's case” (Id. at 22-24) and (iv) ineffective assistance of counsel for failure to retain a linguistics or translation expert for trial (Id. at 60-63). In addition, the Government correctly observes (Doc. 111 at 37) that Movant's post-hearing brief expands the ineffective assistance of counsel claim presented in the § 2255 Motion concerning Attorney Bertrand's alleged failure to investigate Mr. Thompson. Movant now argues that Attorney Bertrand was also constitutionally ineffective for failing to investigate the three other males named in the FBI's 302 Report containing Mr. Thompson's statements. (Doc. 106 at 58-60).
“Notice pleading” is insufficient in a § 2255 proceeding. See, e.g., United States v. Walter, No. 19-16056, 2021 WL 5405411, at *1 (9th Cir. Nov. 18, 2021). “A ‘bare assertion' of an issue ‘does not preserve a claim, particularly when, as here, a host of other issues are presented for review.'” D.A.R.E. America v. Rolling Stone Magazine, 270 F.3d 793, 793 (9th Cir. 2001); see also Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Further, “ineffective assistance claims are not fungible[.]” Hernandez v. Spearman, 764 F.3d 1071, 1077 (9th Cir. 2014)
As the above new claims were not properly raised in the § 2255 Motion, they are waived. See United States v. Berry, 624 F.3d 1031, 1039 n.7 (9th Cir. 2010) (“Berry raised this claim for the first time in his reply brief before the district court; he did not identify the claim in either his motion or in his initial supporting memorandum. Because the Brady claim was not included in his § 2255 motion, it was not addressed by the district court and falls outside the scope of our certificate of appealability.”); Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in [habeas] petitioner's reply brief are deemed waived.”); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (“A Traverse is not the proper pleading to raise additional grounds for relief.”); United States v. Smith, No. 2:13-CR-14-RMP-1, 2020 WL 1666637, at *2 (E.D. Wash. Apr. 3, 2020) (declining to review § 2255 movant's attempt to reframe his ineffective assistance of counsel in his reply because a “party may not raise a new issue in a reply brief”).
It is recommended that the Court disregard all new claims presented in Movant's Reply (Doc. 27) and “Closing Argument and Supplemental Memorandum of Law” (Doc. 106). Moreover, the undersigned concurs with the Government that the new claims are without merit and may be alternatively denied on that basis. (Doc. 111 at 33-36, First, as to the new claim that Attorney Bertrand was constitutionally ineffective for failing to retain a DNA expert, the record reflects that Attorney Bertrand reviewed the evidence and reasonably did not see anything that would trigger a risk analysis of whether to pursue DNA testing. The Government is correct that Attorney Bertrand's performance fell within objective standards of reasonableness with respect to DNA evidence. (Doc. 106 at 15-17). The Government is also correct that Movant has failed to show prejudice with respect to Attorney Bertrand's purported errors in handling DNA evidence. (Id. at 17).
As to the new claim that Attorney Bertrand was constitutionally ineffective for failing to retain a bloodstain pattern expert, Attorney Bertrand testified at the evidentiary hearing:
The government had not named a blood spatter expert, and I didn't see anything in the discovery that they were going to rely on blood spatter to show whose blood was whose in the room. There were -- in the crime scene photos, there are very clear arcs that you can see on the wall. It didn't seem like they were going to rely on anything saying that was [ the victim's] versus this was [Movant's] versus someone else's.
So I did not hire one because I did not expect them to present that type of evidence at trial, and I did not want to, frankly, create another reason for the jury to evaluate this really gory evidence. So I did not hire one.(Doc. 98 at 107). Moreover, Attorney Bertrand testified that she did hire Brad Perron, a blood spatter expert, to assist in trial preparation. Attorney Bertrand stated that she had
Mr. Perron review photographs and other relevant evidence as part of consultation. (Id. at 161). The Government is correct that Attorney Bertrand made a reasonable strategic decision to not hire a bloodstain pattern expert at the outset of her representation and not call a bloodstain pattern expert at trial. The Government also correctly asserts that Movant has not shown a substantial likelihood of a different outcome had Attorney Bertrand called a blood spatter expert at trial. (Doc. 111 at 35-36).
Regarding the new claim asserting that Attorney Bertrand's trial performance was constitutionally deficient for failing to use the admitted evidence showing that the victim's DNA was not on the scissors, the claim is meritless. (Doc. 111 at 46). As excerpted below, Attorney Bertrand expressly used the admitted DNA evidence to argue to the jury that the murder weapon was a knife that agents failed to find, asserting that the agents “decided who did it, what the murder weapon was, and everything else was kind of a cursory review”:
We have blood on [Movant's] feet that we know is [Movant's]. Blood on [Movant's] hands that we know is [Movant's]. I can accepted [sic] that.
Then we will talk about the scissors that are right about where Number 4 is here in between the mattress and the box -- mattress and mattress number two that only have [Movant's]
blood on them, even though the Government wants you to accept that this is the murder weapon for [the victim]. And the explanation that they attempted to get in through cross or through redirect was: Well, other -- a smaller donor's DNA can be washed away, flooded out, overwhelmed by a larger donor's. But listening carefully to what the DNA expert said: Yes, that can happen, but it usually happens when you have a weaker kind of DNA sample like a skin cell sample. But blood is the best.
So, we've got blood versus blood. It's still possible but it's not nearly as likely. And when you consider the evidence that has come in about the nature of [the victim's] injuries, what's more likely is there's another weapon we never found. And it's a knife.
And who knows if it was in this room. Who knows where it was? We have the agent saying: We looked in the kitchen. We didn't see anything. We looked everywhere. Nothing else sharp in this house.
That's not quite the perspective of what happened. What happened they decided who did it, what the murder weapon was, and everything else was kind of a cursory review.(CR Doc. 289 at 95-96). In addition, Attorney Bertrand called her expert witness, Dr. Jeffrey Jentzen, at trial and elicited testimony that the scissors did not cause the victim and Movant's injuries. (CR Doc. 289 at 15-19, 31, 36-37). Dr. Jentzen testified that the victim's injuries are “classic injuries characteristic of a knife-type stab wound.” (Id. at 19). On cross-examination, Dr. Jentzen testified that the injuries to the victim's back could have only been caused by a knife and stated “[t]hese are not scissor wounds.” (Id. at 44). When cross-examining the Government's forensic pathologist, Dr. Ian Paul, Attorney Bertrand elicited testimony that the victim's injuries may have been caused by a knife or box cutter. (CR Doc. 286 at 74). The undersigned finds that Movant has failed to satisfy both prongs of the Strickland test with respect to Attorney Bertrand's use of the admitted DNA evidence from the scissors.
Movant also has failed to satisfy both prongs of the Strickland test with respect to the new claim that Attorney Bertrand unreasonably failed to “present expert testimony regarding [Movant's] intellectual, linguistic, and cultural susceptibilities to coercive interrogation tactics[.]” (Doc. 106 at 35). At the June 2022 evidentiary hearing, the Government called as a witness Lydia Dosela (“Ms. Dosela”), who was the certified Apache court interpreter for Movant at his trial. (Doc. 99 at 104-14). Ms. Dosela testified that Movant spoke English and observed him speak English on “probably two occasions.” (Id. at 107). Ms. Dosela answered “Yes” when the Government asked “Did [Movant] seem to understand English?” (Id.). Ms. Dosela explained that she thought Movant understood English because Movant “had responded in English to his defense attorney, and he was promptly told that he needed to respond to me and I would translate in to English for him.” (Id.). Ms. Dosela agreed when the Government asked if court rules require the person for whom she is translating to speak back in Apache, “rather than going back and forth between English and Apache.” (Id.). Ms. Dosela stated “Yes” when asked “So you actually had to tell [Movant] a couple of times, ‘You have to respond in Apache.'” (Id. at 108).
At the evidentiary hearing, Attorney Bertrand stated “Correct” when the Government asked on cross-examination “You knew from his competency evaluation that [Movant] had gone to a boarding school off the reservation and he spoke English there, correct?” (Doc. 98 at 195). Attorney Bertrand testified that there was no issue “in terms of conveying information to [Movant] and him conveying information [in English] to me. The language issue was not an impediment.” (Id. at 88). Attorney Bertrand testified that she did not observe any differences when she communication with Movant in English versus when he had a translator, explaining that Movant “very quiet and soft-spoken. He was quite -- he knew [Mr. Yentes] and me and trusted us, so he would engage a little bit more. But not a whole lot of animation, whether with the Apache interpreter or with us.” (Id. at 217). Attorney Bertrand further stated that she observed Movant speak with his family members in English as well as Apache. (Id.).
Movant called Linda Gushoney (“Ms. Gushoney”) at the evidentiary hearing. (Doc. 99 at 84-103). A declaration from Ms. Gushoney was admitted into evidence as Exhibit 191. (Doc. 86; Doc. 92 at 10). Ms. Gushoney is a behavioral health technician and an Apache-speaking member of the White Mountain Apache Tribe. (Id. at 84). Ms. Gushoney explained that in April 2021, the Arizona Justice Project called her to assist with translating for Movant. (Id. at 92). Ms. Gushoney stated that she has not met Movant in person, but she has had “about six or seven phone calls” that were “like 10, 15, maybe 20 minutes.” (Id. at 554). Ms. Gushoney stated that she has not spoken to Attorney Bertrand or Ms. Dosela. (Id. at 560). Ms. Gushoney testified that she does not know how verbal Movant is or how much Movant talks on a regular basis because she did not know Movant prior to becoming involved with this case. (Id. at 561).
The undersigned agrees with the Government's conclusion that Movant's new claim that trial counsel was ineffective for failing to retain a linguistic or translation expert fails to satisfy either prong of the Strickland test. (Doc. 111 at 45).
Next, Movant's expansion of his prior claim that Attorney Bertrand was ineffective for failing to investigate Mr. Thompson to include the failure to also investigate the three other males who were with Mr. Thompson is meritless. To reiterate, mere speculation or conclusory allegations are insufficient to establish the prejudice prong of the Strickland test. Movant has not alleged what Mr. Thompson or any of the other three males would have said if they were interviewed and has not presented evidence showing that an investigation could have found them. Bragg, 242 F.3d at 1088 (finding that mere speculation that witness might have given helpful information if interviewed insufficient to establish ineffective assistance of counsel); Dows, 211 F.3d at 486 (rejecting ineffective assistance of counsel claim based on counsel's failure to interview or call alibi witness because petitioner provided “no evidence that this witness would have provided helpful testimony for the defense-i.e., [petitioner] has not presented an affidavit from this alleged witness”); Harden, 846 F.2d at 1231-32 (no ineffective assistance based upon counsel's failure to call a witness where there was no evidence in the record that the witness would have testified); Villafuerte, 111 F.3d at 630 (rejecting ineffective assistance of counsel based on alleged failure to investigate two individuals allegedly present at time of murder where the petitioner “presented no evidence that any amount of investigation could have found [the two individuals] in time for trial nor that further investigation would have produced anything of assistance to the defense. In fact, [the two individuals] did not testify at the hearing on [petitioner's] state habeas petition, either in person or by deposition. [Petitioner] has failed to show prejudice).
Moreover, although Attorney Bertrand explained at the June 2022 evidentiary hearing that she does not have a “specific recollection” about investigating the other three males with Mr. Thompson, she did state that she and her investigator Mr. Yentes “went over to the town north of Cibecue to look for some additional witnesses, but I can't remember who were looking for.” (Doc. 98 at 139). Movant has not shown that Attorney Bertrand's performance fell below objective standard of reasonableness with respect to her investigation.
Finally, as to the assertion in Movant's Reply that Attorney Bertrand “failed to investigate two prior stabbing incidents that occurred on [Movant and the victim's] property within the year and half prior” (Doc. 27 at 18), the Government accurately highlights that the record does not reflect that there were two prior stabbings at Movant's residence. (Doc. 111 at 38). Mr. Cooper's declaration states
Defense counsel also failed to investigate two other stabbing incidents on the property where the defendant and the victim lived. The government disclosed a summary of 25 incident reports spanning a five year period in which the White Mountain Apache Tribal Police were called to their residence. . . . Notably, two of these incidents involved stabbing-one occurred on December 2, 2010, which involved their roommate, Larson Williams, who was stabbed in the living [sic] of their home, and the second occurred in December of 2011, where [the victim] witnessed a stabbing and reported it. Trial counsel, inexcusably, conducted no investigation into either of these two prior stabbing incidents or made any attempt to find out who committed these two prior stabbings on their property.(Doc. 27-2 at 8, ¶ 18) (emphasis in original). At evidentiary hearing, the Government asked Mr. Cooper: “So you testified and wrote in your declaration that there were two prior stabbings that were committed at the residence, and I believe you even bolded in your declaration ‘at the residence' of the defendant and the victim. Is that right?” Mr. Cooper responded:
I could be mistaken, but I thought I said one prior stabbing, then another incident that the victim witnessed. There might have been two prior stabbings, but I know the one stabbing where Larson got stabbed. And then the other one, she witnessed an assault, but I'm not certain that was a stabbing.(Doc. 100 at 113). As to the stabbing of Larson Williams, Mr. Cooper acknowledged on cross-examination that the police report states:
I made contact with the above homeowner, who verbally identified himself as Willard John. Willard informed police Larson just showed up his front door stating he was stabbed. Willard informed police he helped his friend to his couch. Willard John placed several bandages on Williams' chest. Larson Williams advised Willard John not to call police.(Doc. 100 at 115-16). At trial on cross-examination, Attorney Bertrand asked Larson Williams “Do you remember on December 2nd, 2010, calling the police to [Movant] and [the victim's] house? . . . For when you were stabbed in the house?” (Doc. 286 at 145). The Government objected on relevance grounds. (Id. at 146). The transcript concerning that objection is as follows:
THE COURT: The relevance?
MS. BERTRAND: Do you want me to give argument as to why this is relevant, Judge? I just want to make sure what the Court's expecting of me.
THE COURT: And the relevance is what? To what issue?
MS. BERTRAND: Who stabbed [the victim] and [Movant]. We had another assailant attack Mr. Williams, who was actually transported --
MS. SAMPSON: Could we have this discussion at side bar, Your Honor?
MS. BERTRAND: Sure.
THE COURT: Sustained.
MS. BERTRAND: Sustained without the side bar?
THE COURT: That's right.(CR Doc. 286 at 341). The Court also sustained the Government's objection when Attorney Bertrand attempted to elicit testimony from the chief of police of the White Mountain Apache Tribe that Movant had been assaulted at Movant's residence in 2008 and 2010. (CR Doc. 287 at 65).
The undersigned finds that the Government correctly asserts that Movant's new claim alleged ineffective assistance with respect to prior stabbings fails both prongs of the Strickland test.
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the § 2255 Motion (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis be DENIED because Movant has not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).