Opinion
No. 2:12-cr-00326-MCE-KJN
11-02-2020
UNITED STATES OF AMERICA, Respondent, v. JOHN WINTON HARRIS, Movant.
FINDINGS AND RECOMMENDATIONS
I. Introduction
Movant is a federal prisoner, proceeding without counsel, with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his 2015 conviction for possession with intent to distribute at least 28 grams of cocaine base (21 U.S.C. § 841(a)(1)). He is currently serving a sentence of 262 months.
In his motion, movant challenges his sentence, asserting the following: (1) "Newly discovered evidence in-part, Failure/lack of investigation in-part;" (2) ineffective assistance of counsel - lack of investigation; (3) actual innocence - newly discovered evidence; (4) ineffective assistance of trial and appellate counsel for failing to raise controlling Ninth Circuit case law; (5) ineffective assistance of counsel for failing to subpoena witnesses, introduce evidence, and adequately cross-examine a witness at the evidentiary hearing; (6) ineffective assistance of trial and appellate counsel for failing to "point[] out and [recognize] that Government changed its argument and position," to adequately challenge basis for seizure of the cocaine as evidence, and to attack the credibility of law enforcement testimony; and (7) ineffective assistance of counsel for a failure to assert petitioner's wife or ex-wife lied to ensure he "was the fall guy," and for failing to object to the testimony of Brian Nehring as an expert concerning certain text messages, or to retain a defense expert. (ECF No. 193.)
Specific facts will be referenced and cited as necessary in the undersigned's discussion of the issues presented.
Responding to a 911 call by a third party concerning an incident of domestic violence, Sacramento law enforcement officers responded to an apartment located at 1523 Los Robles Boulevard, Apartment 23. When an officer knocked on the door, a male occupant pulled aside the blinds of an adjacent window and peeked out. Both officers observed the male occupant and waited for the door to be answered. When there was no response after waiting approximately 15 seconds, an officer knocked a second time. The door was answered by a female occupant. The officers entered the apartment directly into the living room, where the female occupant remained. The officers observed the male occupant to the left, in the kitchen. The officers had heard "thud" noises coming from the kitchen and observed the male occupant "crouched" down there.
Because the male occupant was anxious and angry, and was not following directions, he was handcuffed and placed on the couch in the living room. Thereafter, the male occupant tried to flee the apartment but was stopped by the officers.
A search of the apartment revealed large quantities of cocaine base in the kitchen, as well as a digital scale and other indicia of drug distribution. Movant was identified as the male occupant in the apartment, and a records-check revealed he was on probation and parole and subject to search conditions.
Movant was subsequently charged with distributing cocaine base and was ultimately convicted following a jury trial.
III. Relevant Procedural Background
In a September 13, 2012 indictment, movant was charged with knowingly and intentionally possessing with the intent to distribute at least 28 grams or more of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1). (ECF No. 5.)
Movant filed a motion to suppress evidence on April 3, 2014. (ECF No. 45.) The Government opposed the motion (ECF No. 47) and movant replied thereto (ECF No. 48). At a hearing held May 1, 2014, the court heard argument; thereafter, it ordered an evidentiary hearing. (ECF No. 49.) Following an evidentiary hearing held May 23, 2014, the court denied the motion to suppress evidence. (ECF Nos. 57 & 59.)
Additional exhibits to the motion to suppress were filed on May 22 and 23, 2014. (See ECF Nos. 53 & 55.)
Jury trial began July 21, 2014. (ECF No. 96.) On July 23, 2014, movant was found guilty. (ECF Nos. 100, 103-04.) The Presentence Investigation Report was filed December 24, 2014. (ECF No. 112.) Following receipt of objections, a reply, and movant's sentencing memorandum (ECF Nos. 113-15), sentencing proceedings were held January 15, 2015 (ECF No. 117). On that date, movant was sentenced to a term of 262 months in federal prison. (ECF Nos. 116-17, 127.)
Following an appeal, the Ninth Circuit Court of Appeals found the first of two searches of movant's wife's apartment to be unconstitutional; that court remanded the matter for a determination as to whether evidence obtained during the second search satisfied an exception to the fruit of the poisonous tree doctrine. (ECF No. 129.) At a status conference held May 19, 2016, the court denied a request for an evidentiary hearing and issued a briefing schedule. (ECF Nos. 142 & 144.) Movant filed a motion to suppress evidence on July 29, 2016 (ECF No. 149), the Government opposed the motion (ECF No. 154), and movant filed a reply (ECF No. 155) and supplemental reply (ECF No. 160).
At a status conference held December 15, 2016, an evidentiary hearing was scheduled for April 11, 2017. (ECF No. 161.) Ultimately, the hearing was held March 31, 2017, and following testimony and argument, the district court denied the motion to suppress. (ECF Nos. 184 & 188.) A formal order denying the motion to suppress issued June 23, 2017. (ECF No. 191.) Movant filed a notice of appeal on July 20, 2017. (ECF No. 192.)
On July 20, 2018, the Ninth Circuit Court of Appeals issued its memorandum, affirming the district court's denial of movant's renewed motion to suppress. (ECF No. 192.)
On August 27, 2018, movant filed the now-pending motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 193.) Additional exhibits were filed on September 26 and October 15, 2018. (ECF Nos. 196 & 197.) On November 6, 2018, the undersigned directed the Government to file an answer to the motion. (ECF No. 199.)
On January 9, 2019, the Government filed a motion for order waiving movant's attorney-client privilege and permitting discovery by the Government. (ECF No. 207.) Movant filed an opposition (ECF No. 210) and the Government replied thereto (ECF No. 211).
On January 29, 2019, the undersigned issued an order partially granting discovery, limited to those issues raised in movant's motion to vacate, set aside, or correct sentence. (ECF No. 215.)
The Government filed its opposition to movant's motion to vacate, set aside, or correct sentence on March 7, 2019. (ECF No. 220.) On March 29, 2019, movant filed a traverse. (ECF No. 224.)
On September 9, 2019, the undersigned issued an order granting movant's motion to add exhibits to his traverse (ECF No. 225), and further placing movant's subsequently filed documents (ECF Nos. 229-239) in the court file, ordering them disregarded. (ECF No. 240.)
On January 24, 2020, the Ninth Circuit Court of Appeals denied a petition for writ of mandamus filed January 8, 2020. (ECF No. 249.)
On March 16, 2020, movant filed a motion to amend the traverse (ECF No. 250) and on March 30, 2020, a supplement to the traverse (ECF No. 251). The motion to amend remains pending and will be resolved herein.
Following an emergency motion for compassionate release filed by movant on July 27, 2020 (ECF No. 252), and opposition thereto by the Government (ECF No. 261), the district court denied movant's emergency motion for compassionate release on September 14, 2020 (ECF No. 262). //
On September 25, 2020, movant filed a document entitled "In relation to Traverse 'E' of 2255 Motion." (ECF No. 267.)
The undersigned shall now address movant's pending motion to vacate, set aside, or correct sentence, and any appropriately related and pending motions.
All relevant filings and documents have been read and considered by the undersigned. Failure to cite or identify a specific filing or document should not be interpreted to mean the filing or document was not reviewed or considered.
IV. Legal Standard
A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255, filed in the court that imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that the prisoner was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999) (citing 28 U.S.C. § 2255). Relief is warranted only where a movant has shown "a fundamental defect which inherently results in a complete miscarriage of justice ...." Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)).
V. Discussion
Because movant's numerous claims largely concern the assistance of counsel, the specific legal standards applicable to those claims are provided in advance of the particular analyses.
The Strickland Standard
The Sixth Amendment standard for analyzing an ineffective assistance of counsel claim is well established. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his trial counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Under the first prong of the Strickland test, a petitioner must show that counsel's conduct failed to meet an objective standard of reasonableness. Strickland, 466 U.S. at 687. There is "a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). A petitioner must rebut this presumption by demonstrating that his counsel's performance was unreasonable under prevailing professional norms and was not the product of "sound trial strategy." Strickland, 466 U.S. at 688-89. Judicial scrutiny of defense counsel's performance is "highly deferential," and thus the court must evaluate counsel's conduct from his or her perspective at the time it occurred, without the benefit of hindsight. Id. at 689.
The second prong of the Strickland test requires a petitioner to show that counsel's conduct prejudiced him. Strickland, 466 U.S. at 691-92. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one "'sufficient to undermine confidence in the outcome.'" Summerlin v. Schriro, 427 F.3d 623, 640 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 694). "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.'" Richter, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693). "The likelihood of a different result must be substantial, not just conceivable." Id.
Additionally, a habeas claim alleging appellate counsel was ineffective is evaluated under Strickland. See Williams v. Taylor, 529 U.S. 362, 390-91 (2000).
Ground One: Newly Discovered Evidence/Ineffective Assistance of Counsel
In his first claim for relief, movant contends counsel failed to adequately investigate "the fact that D-Boy aka Whitehurst was responsible for the drug" inside Evans' home, and that a "conviction" or "confession" from D-Boy would have "led to serious reasonable doubt" at trial. (ECF No. 193 at 4.) Movant further contends counsel failed to investigate cellphone records and text messages that would have "contradicted the Government's case and theory of events," with regard to his involvement with Evans. (Id.) Finally, movant contends counsel's failure to "object or counter argue" Government exhibits depicting movant in Evans' apartment meant the jury did not hear evidence that "could have raised serious reasonable doubt" as concerned his ties to Evans' apartment, contradicting Evans' "lies" and the Government's theory at trial. (Id.) (See also ECF No. 224.)
The Government maintains counsel did not perform deficiently, conducting a "robust investigation" and making reasonable tactical decisions. (ECF No. 220 at 10-14.) It also argues movant was not prejudiced by counsel's representation. (ECF No. 220 at 14-16.)
"D-Boy" refers to an individual named Dealonie Whitehurst.
An attorney's unreasonable failure to investigate and develop a viable defense, including a defense of third party culpability, may constitute ineffective assistance of counsel. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002) ("It is well-established that 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary'" (quoting Strickland, 446 U.S. at 691)); see also Luna v. Cambra, 306 F.3d 954, 962-67, as amended at 311 F.3d 928 (9th Cir. 2002); Jones v. Wood, 114 F.3d 1002, 1010-11 (9th Cir. 1997); Sanders v. Ratelle, 21 F.3d 1446, 1456-60 (9th Cir. 1994). The merit of such a claim, however, depends on a showing that specific additional evidence to support a defense could have been obtained and presented and that the trial outcome would likely have been different had counsel done so.
Here, the record reveals defense counsel was aware of D-Boy because he questioned Officer Sabra about Evans' boyfriend during cross-examination (ECF No. 105 at 78) and defense witness Vernon Jackson testified that he used to purchase crack cocaine from Evans or D-Boy at Evans' apartment. (ECF No. 105-1 at 50.) Jackson testified on cross-examination that he never purchased drugs from movant. (ECF No. 105-1 at 59.) On re-direct examination, Jackson again testified he purchased cocaine from Evans and D-Boy, Evans' boyfriend. (ECF No. 105-1 at 63-65.) During closing argument, defense counsel argued the evidence showed Evans' boyfriend "D." was at the apartment, and it was undisputed that Vernon Jackson purchased drugs when D. was present. (ECF No. 124 at 19.) Defense counsel further argued the drugs found in the apartment belonged to Evans and D-Boy. (ECF No. 124 at 21.) In sum, the record establishes that defense counsel did not fail to investigate D-Boy.
Defense counsel was not required to call D-Boy as a witness. Strickland, 466 U.S. at 690. "Once counsel reasonably selects a defense, it is not deficient performance to fail to pursue alternative defenses." Rios v. Rocha, 299 F.3d 796, 807 (9th Cir. 2002). Significantly, movant's reference to defense counsel perhaps obtaining a confession from D-Boy is complete speculation. There is no evidence to indicate, now or then, that D-Boy would have confessed to the crime of which movant was convicted. Movant's case is unlike Sanders, where trial counsel failed to investigate a third party who had confessed to the crime. Sanders, 21 F.3d at 1456. And, certainly, defense counsel would have had no ability to control whether or not D-Boy could have been convicted of this crime, or any crime. Mere speculation or conclusory allegations are insufficient. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Therefore, movant cannot show that counsel's conduct concerning either his investigation into D-Boy, or any effort to obtain a "conviction or confession" from D-Boy, was deficient.
There is no reasonable probability of a different outcome here. Strickland, at 694. Defense counsel argued to the jury that D-Boy was the culpable party, yet the jury was not swayed. There is nothing to indicate in this record, or in the exhibits to movant's motion, that D-Boy would have confessed on the stand or been convicted of this crime.
Investigation Re Text Messages/Cell Phone
Movant makes the claim the counsel failed to "investigate cellphone records/text messages" as those would have served to contradict the government's case and theory at trial because movant did not stay at Evans' apartment "24-36 hours prior to" his arrest, and that evidence would have established he was seeing another woman, "rais[ing] serious doubt to the jury about [his] involvement with Evans" and connection to her apartment. (ECF No. 193 at 4.)
The record belies movant's claim. The defense challenged evidence gleaned from text messages and a cell phone found during the search of Evans' apartment. Specifically, the defense asserted the evidence lacked foundation in its motions in limine; however, the court denied the motion. (See ECF No. 65 at 3-4; ECF No. 122 at 11, 18-19, 22-26; see also ECF No. 124 at 22 [during closing argument, defense counsel references "127 messages" downloaded from the phone & argued "[o]ut of 197" text message the government showed "five or six"].)
A cellular forensics expert testified concerning the data extracted from the cell phone found in Evans' apartment. (ECF No. 105 at 98-115.) Defense counsel elected not to conduct a cross-examination. (ECF No. 105 at 115.) This was a tactical decision that aligns with the defense strategy: to deny the cell phone belonged to movant and to suggest it belonged to Evans. (ECF No. 105-1 at 8 [defense counsel asking DEA fingerprint specialist about ability to test telephones for fingerprints], 105-1 at 33 [no cross-examination of DEA Special Agent Nehring]; ECF No. 124 at 22 [in closing argument: "there's no proof that's actually his phone. There's no testimony that that phone belonged to" movant], 124 at 22-23 ["no evidence that the phone was in Mr. Harris' name or that it was even proved it belonged to him. Again, no fingerprints, no DNA from that phone"].) It was a reasonable strategy. Strickland, 466 U.S. at 688. And, in electing to adopt a strategy that involved questioning the government's evidence that the cell phone containing the text messages at issue during the trial lacked indication the phone even belonged to movant, using the text messages as movant suggests would have been contradictory to defense counsel's reasonable, chosen strategy.
The record indicates defense counsel investigated and was aware of the government's evidence in the form of text messages retrieved from the cell phone found in Evans' apartment. Defense counsel's strategy at trial served to challenge the government's evidence and theory at trial. Strickland, 466 U.S. at 688-89. Movant's disagreement with counsel's strategy does not amount to any deficiency by counsel, nor does it serve to show prejudice. Reasonable tactical decisions, including decisions regarding presentation of the case, are "virtually unchallengeable." Strickland, 466 U.S. at 690. Even assuming a deficiency, there is no reasonable probability of a different result. Strickland, at 694.
Failure to Object or Counter Government Exhibits
Here, the record shows defense counsel objected to the text messages and selfies of movant found on the cellphone on the basis of a lack of foundation. (ECF No. 122 at 24-26.) Further, the defense put on witnesses to counter the evidence offered by the government concerning movant's connection to Evans' apartment. (ECF No. 105-1 at 35-38, 41-43.)
Movant cites counsel's failure to "point out to the jury" that a photograph depicting him wearing certain red and blue clothing and wearing a "white watch," because those items were not found in Evans' apartment three days later at the time of his arrest "could have raised serious reasonable doubt to the jury" about his ties to Evans' apartment, amounting to ineffective assistance of counsel. But whether to "point out" this specific alleged discrepancy to the jury is a tactical decision by counsel. Strickland, 466 U.S. at 688-89. And, reasonable tactical decisions, including decisions regarding presentation of the case, are "virtually unchallengeable." Strickland, 466 U.S. at 690.
Defense counsel, in fact, countered or challenged the testimony that the men's clothing found in Evans' apartment belonged to movant during cross-examination of both responding law enforcement officers (ECF No. 105 at 64-65 & 77-78) and made the point in closing argument to the jury (ECF No. 124 at 19). This strategy comported with his opening statements that mere presence at a crime scene is not enough to convict and that movant did not live at Evans' apartment. (ECF No. 122 at 163.)
There is no reasonable probability that even had the jury heard testimony that movant was wearing certain clothing in a photograph taken three days before his arrest, and that because those items of clothing were not found in Evans' apartment on the day of his arrest it was evidence movant did not live in Evans' apartment, the outcome would have been different. Strickland, 466 U.S. at 694.
The record establishes there was other evidence tending to indicate movant resided at Evans' apartment, beyond the photographs depicting movant there. For instance, in the same green duffle bag from which police recovered photographs of Evans and movant, was an envelope addressed to movant at Evans' address, to wit: 1523 Los Robles Boulevard, Apartment Number 23. (ECF No. 122 at 96-98; but see ECF No. 124 at 19-20 [defense counsel argued the contents of the green duffel bag as "leftovers"].)
In sum, movant's claim as alleged in ground one is merely criticism of defense counsel's tactics or strategy, and therefore, does not support a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 688-89; Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). There has been no showing of prejudice. Richter, 562 U.S. at 112. Therefore, the claim should be denied. The undersigned finds no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis v. United States, 417 U.S. at 346. Accordingly, the claim should be denied.
Ground Two: Ineffective Assistance of Counsel
Specifically in ground two, movant complains his attorney was ineffective as follows: (1) "for not allowing" movant to testify where he could have discredited the government's theory that he lived at Evans' home or why he was at Evans' home on the day of his arrest and three days prior; (2) for failing to "follow up and object and point out that there was evidence in pictures that it was other male shoes" depicted therein; and (3) for failing to object to Nehring's expert testimony concerning the text messages. (ECF No. 193 at 5.)
Refusing to Permit Movant to Testify
"[I]t cannot be permissible trial strategy, regardless of the merits or otherwise, for counsel to override the ultimate decision of a defendant to testify contrary to his advice." United States v. Mullins, 315 F.3d 449, 453 (9th Cir. 2002). This conclusion is so because "a defendant in a criminal case has the right to take the witness stand and testify in his or her own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). The defendant may, however, waive this right, either explicitly or implicitly. See United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). Such a waiver may be inferred from a defendant's failure to testify at trial or to notify the trial court of his desire to testify. Id. at 1094-095. "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to testify," but he "can reject his attorney's tactical decision by insisting on testifying, speaking to the court, or discharging his lawyer." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). See United States v. Nohara, 3 F.3d 1239, 1244 (9th Cir. 1993) (rejecting ineffective assistance of counsel claim predicated upon counsel's waiver of petitioner's right to testify where defendant was silent in face of attorney's decision not to call him as a witness).
Significantly, a review of this record reveals no indication whatsoever that defense counsel did not permit movant to testify at trial. In fact, the record before this court establishes that on the morning of the first day of trial defense counsel was seeking to prepare movant to testify and that movant was refusing to meet with counsel. (See ECF No. 126 [9 pages; sealed].) Additionally, the record gives a reason for counsel to recommend against his client testifying at trial. Specifically, outside the jury's presence and before the government's case-in-chief was to resume with the continued direct examination of Officer Canepa, movant testified at a hearing concerning the events of July 16, 2012, wherein he was questioned by DEA Agent Nehring. (ECF No. 105 at 3-13 [direct examination], 13-24 [cross-examination].) At the conclusion of the hearing, the district judge stated, in pertinent part, "in probably 16 years as a judge, I've never seen a situation where I found a defendant more incredible as far as their position and how they respond on the witness stand." (ECF No. 105 at 43.)
In any event, movant was silent on the issue of his right to testify and implicitly waived that right. United States v. Pinto-Noriega, 189 F.3d at 1094; United States v. Joelson, 7 F.3d at 177; United States v. Nohara, 3 F.3d at 1244.
Further, defense witness testimony addressed movant's living arrangements. Specifically, Angela Slaughter and Bernetta Jackson both testified that movant did not live at Evans' apartment, that he had been living at his mother's home, and then had rented an apartment of his own. (ECF No. 105-1 at 35-44.) Again, reasonable tactical decisions, including decisions regarding presentation of the case, are "virtually unchallengeable." Strickland, 466 U.S. at 690.
In sum, there is nothing in this record to indicate defense counsel refused to permit movant to testify at trial. Nor can movant establish prejudice as there is no reasonable probability of a different result had he testified. Strickland, 466 U.S. at 694.
The Men's Shoes
On direct examination, Officer Canepa testified that three pairs of men's shoes in a size eight were observed in the southwest bedroom of Evan's apartment. (ECF No. 122-1 at 77.) The size was significant, Canepa testified, because later that evening it was determined that movant wore a size eight shoe. (ECF No. 122-1 at 77.) Defense counsel questioned the officer on cross-examination about his failure to collect the men's shoes depicted in the photograph as evidence. (ECF No. 150 at 65.) Counsel's question was consistent with the defense strategy that the investigation was deficient for its failure to collect evidence that should have been subjected to DNA testing. Strickland, 466 U.S. at 690.
In any event, pointing out an alleged discrepancy in the form of "Air Jordans in plain view by the door" in Evans' apartment would not have added anything significant to the strategy or tactic employed by counsel. As noted elsewhere in these findings, other defense evidence served to contradict any assertion by the government that movant lived in Evans' home. (ECF No. 105-1 at 35-44, 51 [Vernon Jackson testified when he observed movant at Evans' apartment complex, movant was "dropping off his daughter or he was picking up her son"].) Defense counsel argued to the jury this evidence was lacking in several ways. (See, e.g., ECF No. 124 at 18-20 [addressing clothing, shoes, lack of toiletries and prescription medications, etc.].)
This claim too amounts to movant's mere criticism of defense counsel's strategy, and does not establish a claim of ineffective assistance of counsel. Gustave, 627 F.2d at 904. There is no reasonable probability of a different outcome even had the jury heard evidence of another pair of men's shoes that allegedly did not belong to movant being present in Evans' apartment. Strickland, 466 U.S. at 694.
Nehring Testimony
Movant complains defense counsel should have objected to DEA Special Agent Nehring's designation as an expert witness, citing prejudice because the jury was "tainted" by Nehring's testimony about text messages where those messages made no reference to "crack cocaine sales."
During trial, defense counsel expressly argued there was no evidence to prove the phone recovered during the search of Evans' apartment belonged to movant. In movant's motion, he complains counsel was ineffective for failing to object to Nehring's expert testimony about "the text messages in my phone ...." (ECF No. 193 at 5.)
Nehring testified on the second day of trial. After testifying he had been an agent since 1991, and briefly explaining the duties of the position (ECF No. 105-1 at 9-10), Nehring specifically testified concerning his investigation of this matter and his interviews with movant. (ECF No. 105-1 at 10-13.) Nehring testified movant advised him that he had been "middlemanning drug deals for cocaine, cocaine base, and MDMA" since 2009. (ECF No. 105-1 at 13-14.) The government then indicated to the court that the aforementioned testimony was the end of the agent's testimony as a percipient witness and that it intended to question Nehring in order to qualify him as an expert witness; defense counsel did not object. (ECF No. 150-1 at 15-16.) Briefly stated, Nehring testified he had been a special agent for more than thirty years, estimated he had been involved in between 400 to 500 cases in that period, at least 100 of which would have involved cocaine base. (ECF No. 150-1 at 16-17.) Nehring was familiar with the common terminology, packaging and distribution of cocaine base, and had arrested over 100 people for the offense. (ECF No. 150-1 at 17-18.) The agent further had experience as an undercover agent, buying the drug in that capacity, and had undergone training regarding the distribution of cocaine base. (ECF No. 150-1 at 17-18.) Defense counsel did not elect to voir dire Nehring. When the government moved to qualify Nehring as an expert, defense counsel had no objection. (ECF No. 150-1 at 18.) The court deemed Nehring an expert in the distribution of cocaine base. (ECF No. 150-1 at 18.)
Thereafter, Nehring testified about quantities for personal use versus sales, packaging in sandwich bags, and the use of a digital scale. (ECF No. 150-1 at 19-24.) Nehring also testified as to quantities sold, the currency used to purchase the drug, and the language associated with those quantities. (ECF No. 150-1 at 24-27.) After identifying a number of the photographs of evidence taken on the date of movant's arrest (ECF No. 150-1 at 27-29), Nehring testified about text messages recovered from the Samsung phone found in Evans' apartment and specifically about language associated with the distribution of cocaine base. (ECF No. 150-1 at 30-33.)
In light of Nehring's extensive experience, there was no basis upon which defense counsel could have reasonably objected to Nehring's qualification as an expert on the distribution of cocaine base. See Boyer v. Chappell, 793 F.3d 1092, 1106 (9th Cir. 2015); Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) ("trial counsel cannot have been ineffective for failing to raise a meritless objection"); James v. Borg, 24 F.3d 20, 27 (9th Cir.1994) (holding that counsel does not provide ineffective assistance by failing to make futile objections); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (failure to raise a meritless argument does not constitute ineffective assistance of counsel).
Significantly too, had defense counsel objected to Nehring's testimony concerning the meaning of the language used in the text messages found on the Samsung phone, such an objection would have been incompatible with the defense strategy to argue there was no evidence the phone actually belonged to movant. Because such a move would have been incompatible with the defense strategy employed by defense counsel, counsel's purported failure to challenge either Nehring's status as an expert witness or the specific testimony about the language employed in the text messages was not deficient. Strickland, 466 U.S. at 690. Moreover, given Nehring's testimony that movant stated he was "middlemanning" cocaine, cocaine base and MDMA, it is not reasonably probable that even had defense counsel successfully objected to Nehring's subsequent qualification as an expert and testimony regarding the content of the text messages, a more favorable result would have occurred. Id. at 694.
As for movant's claim asserted in ground two of his motion, the undersigned finds no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis v. United States, 417 U.S. at 346. Thus, the claim should be denied.
Ground Three: Actual Innocence-Newly Discovered Evidence
In his third ground for relief, movant claims he has repeatedly asserted he "was not responsible nor did [he] reside in Evans apartment," he contends he was in the wrong place at the wrong time, and that D-Boy was on his way to pick up his property and the cocaine. Movant contends D-Boy has provided him "with a[] signed and stamped and notarized letter admitting his guilt" and proclaiming movant's innocence. He argues an evidentiary hearing must be held to hear "exactly what this guy has to say," noting that information is "corroborated by Vernon Jackson's testimony and "exhibit 'P'." (ECF No. 193 at 6.) The government responds the declaration is not reliable and should not be credited by this court, and that even assuming reliability, the declaration offers no actual admission of guilt, nor does it explain the basis for the declarant's purported knowledge. (ECF No. 220 at 18-20.)
Legal Standards Applicable to the Claim
The United States Supreme Court has, on several occasions, assumed, without expressly deciding, that a "freestanding" claim of actual innocence is cognizable on federal habeas review. See House v. Bell, 547 U.S. 518, 554-55 (2006); Herrera v. Collins, 506 U.S. 390, 417 (1993). The Ninth Circuit has also assumed that freestanding actual innocence claims are cognizable on collateral attack. See e.g., United States v. Berry, 624 F.3d 1031, 1038 n. 5 (9th Cir. 2010) ( "This circuit recognizes a claim of actual innocence that is cognizable under § 2255"); Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir. 1997) (en banc). However, the standard for establishing that one is entitled to relief on such a freestanding actual innocence claim is "'extraordinarily high.'" Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417). In order to prevail, a petitioner "must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. See also Cooper v. Brown, 510 F.3d 870, 923 (9th Cir. 2007) ("Under these standards, a petitioner must affirmatively prove that he is probably innocent"); Boyde v. Brown, 404 F.3d 1159, 1168 (9th Cir. 2005) (same).
Declaration dated August 10, 2018
Attached as Exhibit A to movant's filing is the Declaration of "Delonie Whitehurst." (ECF No. 193, Ex. A.) The declaration is signed "under penalty of perjury pursuant to 28 U.S.C. 1746 foregoing to be true and correct" and is accompanied by a completed all-purpose acknowledgement by California notary Daniel Paul Reynolds. (Ibid.) In its opposition, the government appended a redacted version of an image record from the California Department of Motor Vehicles wherein the spelling of Whitehurst's first name is "DEALONIE" rather than the "Delonie" appearing in movant's exhibit. (ECF No. 222 [Notice of Errata].)
The undersigned notes that in the declaration of Melvin M. Buford, Buford also employs the spelling "Dealonie" when referring to Whitehurst. (See ECF No. 225.)
As for the content of the declaration, its entirety is recounted here without correction or modification:
1. My name is Delonie Whitehurst.
2. I have both personal and first hand knowledge of the factual statements madde herein and am competent to make those factual statements.(ECF No. 193, Ex. A.)
3. In the summer of 2012 and around the month or June or July, John Harris was arrested and charged for poss w/intent cocaine a charge John Harris was later wrongfully convicted of.
4. I am a witness and have first hand knowledge on who put the cocaine inside of Fornisha home and more importantly who the cocaine belongs too, along with who's responsible and it's without a doubt that it wasn't all John Harris's.
5. I would like to step forward and accept accountability for my own actions and roll. Furthermore, I'm making this declaration under my own free will and direction. I am not being threatened or forced to do so.
Setting aside the first paragraph, which itself is potentially unreliable given the spelling discrepancy noted above, the remainder of the declaration does not serve to establish movant is actually innocent or probably innocent.
To begin, it is curious how Whiteside would have "personal and first hand knowledge" of movant's arrest. The record is clear that other than law enforcement personnel, the only persons present during movant's arrest were he and his wife. (ECF . 122-1 at 95.) Whiteside's claim of personal knowledge as to movant's arrest is unreliable. Nor is it clear how Whiteside would have "personal and first hand knowledge" of the crime with which movant was charged; obviously the responsibility of charging the crime falls to the government and its agents, meaning, of course, that Whiteside cannot have any such personal knowledge. In the fourth paragraph, Whiteside claims to be a "witness" and to have "first hand knowledge" of "who put the cocaine inside" Evans' apartment. Even assuming that is true, Whiteside fails to identify "who the cocaine belongs" to, other than to state it did not "all" belong to movant. Finally, Whiteside declares he "would like to step forward" to "accept" his "accountability" and role. The declaration lacks any indication as to what role Whiteside may be willing to accept or be held accountable for. Certainly the declaration does not make any claim of ownership to, or even express personal responsibility for, the cocaine found in Evans' apartment. The declaration does not come close to meeting the "extraordinarily high" standard movant must overcome. Carriger, 132 F.3d at 476. Nor is there any explanation for Whiteside's delay following his purported "personal" and "first hand knowledge" of movant having been wrongfully convicted - a period of approximately four years. Herrera v. Collins, 506 U.S. at 423 (O'Connor, J., concurring) (affidavits made many years after trial, purporting to exculpate a convicted prisoner through a new version of events, are ''not uncommon'' and ''are to be treated with a fair degree of skepticism''). Given the foregoing, the reliability of the Whiteside declaration is plainly suspect.
Separate from the Whiteside declaration, but asserted as a part of ground three, movant alleges that Melvin Buford and Joyce Hammonds should have testified at trial as they had "evidence in [the] case such as lease agreement, clothes, shoes, bills, C.D.L. wallet," speaking to the issue of movant not residing at Evans' apartment. But, as noted elsewhere in these findings, the government's evidence of this issue was challenged. Angela Slaughter and Bernetta Jackson testified as to movant not living with Evans, as did Vernon Jackson. The officers' testimony concerning the men's clothing and shoes found in the apartment was also challenged by way of defense counsel's cross-examination on those issues. Simply put, any additional testimony would have been cumulative. Bobby v. Van Hook, 558 U.S. 4, 11-12 (2009) ("defense counsel's 'decision not to seek more' mitigating evidence...'than was already in hand' fell 'well within the range of professionally reasonable judgments'"). Further, it is defense counsel's decision whether a particular witness is to be called to testify. Strickland, 466 U.S. at 690. The record establishes that defense counsel was considering calling Buford at one point (ECF No. 105-1 at 46), but apparently elected not to do so. Again, that is counsel's tactical decision to make. Sanders v. Ratelle, 21 F.3d at 1456; United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987) (trial tactics are clearly within the realm of powers committed to the discretion of defense counsel).
In sum, the undersigned finds that movant has failed to make a "truly persuasive demonstration" that he is innocent with respect to the offense. Herrera, 506 U.S. at 417. The Whiteside declaration does not come close to demonstrating doubt about movant's guilt, nor does it affirmatively prove his probable innocence. Carriger v. Stewart, 132 F.3d at 476; Cooper v. Brown, 510 F.3d at 923; Boyde v. Brown, 404 F.3d at 1168. Nor was trial counsel ineffective for failing to call Melvin Buford or Joyce Hammonds as witnesses at trial. Strickland, 466 U.S. at 690. There was no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis, 476 U.S. at 346. Thus, the undersigned recommends the claim be denied.
Ground Four: Ineffective Assistance of Counsel
Here, movant contends trial and appellate counsel were ineffective for (1) failing to "raise and cite controlling" Ninth Circuit precedent as concerns warrantless searches, citing to the "May 23 hearing & March 13, 2017 hearing;" (2) failing to raise or "bring[] to light to the jury" the fact Evans was not arrested; and (3) failing to call his brother and Agent Richardson to testify on his behalf to corroborate the fact he did not reside in Evans' apartment. (ECF No. 193 at 8.)
Argument re Warrantless Search
The law of the case doctrine generally precludes a court from reconsidering an issue that has been previously decided by the same court, or a higher court in the same case. United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). For the doctrine to apply, the issue in question must have been decided either explicitly or by necessary implication in the prior disposition. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951 (1993). The doctrine is not a limitation on the court's power, but a guide to discretion. Arizona v. California, 460 U.S. 605, 618 (1983).
The law of the case doctrine has three exceptions that may permit departure from the law of the case when: (1) the original decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial. Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002). None of the exceptions apply here. --------
The Supreme Court has recognized that the law of the case doctrine typically applies in the § 2255 context, as do its exceptions. See Davis, 417 U.S. at 342 (assuming doctrine applies, and considering exception for an intervening change in law). The Ninth Circuit has clearly stated that the doctrine applies in § 2255 cases and precludes relitigation of issues previously decided. United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012), cert. denied, 568 U.S. 1257 (2013).
Here, the Ninth Circuit Ninth Circuit established as the law of this case that the inevitable discovery doctrine was a valid exception to the otherwise unconstitutional search of Evans' apartment and the seizure of the cocaine base. (ECF No. 192.) This court is bound by the decision of the Court of Appeals in this regard. See Thomas v. Bible, 983 F.2d at 154. Because any claim of ineffective assistance of counsel related to the search and seizure would require a finding that the search was unconstitutional (something already determined otherwise), the Ninth Circuit's decision also precludes the related claims of ineffective assistance of counsel. Thus, this court is precluded by the law of the case from considering movant's claims for relief on this basis.
Fact Evans Was Not Arrested
Movant contends that because he did not reside in Evans' home, he is not "responsible for whats inside," and therefore defense counsel was ineffective for failing to raise the issue before the jury or ask the arresting officers why Evans was not arrested. (ECF No. 193 at 8.)
Whether or not Evans was arrested is irrelevant. While Evans and movant were both present in the apartment when the cocaine base was discovered, even had defense counsel successfully presented evidence that Evans was not arrested, the outcome of the proceedings would not have been different. It is not reasonably probable in light of the evidence, and in particular, the testimony of Agent Nehring wherein movant advised Nehring that he was "middlemanning" controlled substances, including cocaine base, that the jury would have found movant not guilty had it considered evidence that Evans was not arrested.
Defense counsel argued that Evans and D-Boy were the true responsible parties, but the jury was not persuaded. Movant's own actions reasonably support the jury's finding of guilty. Movant looked out the window, saw the officers, and did not open to the door in response to their knock. When the officers gained entry after Evans opened the door in response to their second attempt to make contact, movant was crouching down in the kitchen area, was agitated and hesitant to follow the orders given by the officers. Once movant was handcuffed, he attempted an escape of the apartment. Movant refused to give his full name. He instructed Evans to tell the officers they had to leave the apartment. Significantly, in a later interview with DEA Agent Nehring, asked whether or not he had any experience or involvement in the distribution of cocaine, movant stated that "since 2009, over the last three years leading up to that point, that he had been repeatedly been involved in middlemanning drug deals for cocaine, cocaine base and MDMA." (ECF No. 105-1 at 13.) Even assuming counsel were deficient as alleged by movant, there is no reasonable probability of a different outcome. Strickland, 466 U.S. at 694. Hence, movant cannot establish prejudice.
Testimony of Movant's Brother & Agent Richardson
Movant alleges defense counsel was ineffective for failing to call his brother and Agent Richardson as witnesses to testify that movant "was not a resident" at Evans' apartment. However, as noted elsewhere in these findings, such evidence would merely be cumulative of the defense evidence offered through the testimony of Angela Slaughter, Bernetta Jackson and Vernon Jackson. Bobby v. Van Hook, 558 U.S. at 11-12. Additionally, movant's brother's testimony would have been "suspect based on [his] close relationship with" movant. See, e.g., Gonzalez v. Wong, 667 F.3d 965, 988 (9th Cir. 2011) (holding that trial counsel's failure to present character witnesses who were family members or close friends did not constitute ineffective assistance).
Movant also contends defense counsel was ineffective for failing to call Agent Richardson to testify regarding "parole procedures when doing the search of 3-party home." The search of Evans' home was determined to be constitutional by the Ninth Circuit Court of Appeals, as noted above; therefore, any testimony Richardson may have offered would not have been helpful to movant as the issue had already been decided against him. And again, as to the issue of whether movant resided in Evans' apartment, Richardson's testimony would have been cumulative. Bobby v. Van Hook, 558 U.S. at 11-12.
In short, there was no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis, 476 U.S. at 346. Thus, the undersigned recommends movant's claim as asserted in Ground Four be denied.
Ground Five: Ineffective Assistance of Counsel
In ground five, movant contends his trial counsel was ineffective for the following reasons: (1) failing to subpoena witnesses to corroborate he "had children and other responsibility" at the time of his arrest, and for failing to adequately examine Angela Slaughter and his mother; (2) failing to introduce evidence gathered by Melvin Buford and Joyce Hammonds, "such as lease agreement phone evidence" to show movant was "involved with other women" and that Evans was "involved with another man" to corroborate movant's "theory of events;" and that (3) trial and appellate counsel were ineffective for failing to "point out" that Evans testified at an evidentiary hearing in 2014 that movant had his own apartment. (ECF No. 193 at 9.)
Subpoenas & Adequacy of Cross-Examination
Without identifying what witnesses defense counsel should have subpoenaed to testify at trial, movant claims those witnesses could have corroborated and proven that he "had children and other" responsibilities at the time of his arrest. However, an attorney is not required to present trial testimony from every witness suggested by defendant. United States v. Wadsworth, 830 F.2d at 1509 (trial tactics are clearly within the realm of powers committed to the discretion of defense counsel). Moreover, whether movant had children and other responsibilities at the time of his arrest would not have foreclosed the jury's finding of guilt even had that information been presented. There is no reasonable probability of a different outcome given the evidence presented at trial: movant told Agent Nehring he had been "middlemanning" cocaine base; he was in Evans' apartment when law enforcement officers arrived to investigate a report of domestic violence; movant was aware of the officers' presence after looking out a window but did not open the door in response to an officer's knock; after Evans opened the door for officers, movant was observed in the kitchen, was agitated and refusing to follow the officers' instructions, and attempted to escape the apartment while handcuffed. Movant has failed to establish prejudice. Strickland, 466 U.S. at 693-94.
Movant complains defense counsel failed to adequately examine defense witnesses Angela Slaughter and Bernetta Jackson on the issue of his residency. The record establishes otherwise. Slaughter testified she was in a romantic relationship with movant and they shared a child together. (ECF No. 105-1 at 35.) Slaughter saw movant every day, visiting him at either his mother's home where he originally stayed, or at his apartment on El Camino. (ECF No. 105-1 at 36-37, 39-40.) Jackson, movant's mother, testified that movant was living with her around the time of his arrest and got an apartment immediately prior to his arrest on El Camino. (ECF No. 105-1 at 41-43.) Reasonable tactical decisions, including decisions with regard to the presentation of the case, are "virtually unchallengeable." Strickland, 466 U.S. at 687-90; United States v. Nersesian, 824 F.2d 1294, 1321 (2nd Cir. 1987) ("[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial").
Buford & Hammonds Evidence
This issue has already been addressed. See discussion in Ground Three, ante.
Evans' Testimony at Evidentiary Hearing
Movant next claims defense counsel was ineffective for failing to point out the fact that Evans testified at the evidentiary hearing in 2014 that movant had his own apartment, something she did not tell officers at the time of movant's arrest, and that appellate counsel was ineffective for failing to raise the issue on appeal. (ECF No. 193 at 9.)
Evans did not testify at trial; she asserted the marital privilege and was therefore an unavailable witness. (ECF No. 122 at 4-10.) See United States v. Marchini, 797 F.2d 759, 764-65 (9th Cir. 1986) (declarant unavailable when she invoked marital privilege), cert. denied, 479 U.S. 1085 (1987). Movant fails to explain what defense counsel should have done in an effort to present Evans' 2014 evidentiary hearing testimony at trial.
Given the district court's ruling concerning the expected testimony of defense investigator Buford regarding Evans' statements to him following movant's arrest pursuant to Rule 804(b)(3) - statements against interest - (see ECF No. 122 at 26-27, 140-48 [trustworthiness at issue]), there is no guarantee that evidence would have been admissible at trial. Admission of such testimony is within the court's discretion. See, e.g., United States. v. Avants, 367 F.3d 433 (5th Cir. 2004).
And, even assuming Evans' former testimony was admissible pursuant to Rule 804(b)(1) of the Federal Rules of Evidence, trial counsel was not ineffective for electing not call Buford to testify in that regard. A review of Fornisha Evans' testimony at the evidentiary hearing in May of 2014 does reveal that Evans testified movant had his own apartment. (ECF No. 59 at 90.) However, that statement does not reflect the entirety of Evans' testimony on the subject.
A careful and thorough review of the hearing transcript reveals that Evans testified that while she and movant were separated for the period between late February or early March 2012, they reconciled in June of that year. (ECF No. 59 at 89.) As of June, the two were "back and forth between his place and" hers. (ECF No. 59 at 90.) Further, Evans acknowledged on cross-examination that she told one of the responding officers, at the time of movant's arrest, that movant had stayed every night of the previous two weeks at the apartment. (ECF No. 59 at 111.) Notably too, Evans' other testimony would have been potentially detrimental or damaging to movant's case. (See ECF No. 59 at 94-95 [movant telling Evans to tell the officers to leave], 96 [movant trying to run], 99 [Evans denied knowing about cash in her room], 104-11 [Evans testified as to domestic violence incident; not first incident].)
Defense counsel's failure to offer Evans' former testimony from the May 2014 evidentiary hearing does not amount to deficient performance. Further, he record reveals it was a matter of tactic or strategy, when defense counsel advised the court during the defense case that he did not believe he would call defense investigator Buford to the stand. (ECF No. 105-1 at 46.) That was a reasonable strategy given the circumstances. Strickland, 466 U.S. at 688-689. And, movant cannot establish prejudice where, as noted elsewhere in these findings, there is no reasonable probability of a different result given the other evidence adduced at trial. Strickland, at 694. There was no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis, 476 U.S. at 346. Thus, the undersigned recommends the claim asserted in Ground Five be denied.
Ground Six: Ineffective Assistance of Counsel
In ground six, movant contends (1) trial and appellate counsel were ineffective for "not pointing out and recognizing" the government had changed "argument & position prior to remand and after," and cannot do so; (2) "government didn't prove that the evidence would have ultimately been discovered;" and (3) counsel failed to attack an officer's testimony as inconsistent with the evidence. (ECF No. 193 at 11.)
Changed Argument or Position
Movant claims trial and appellate counsel were ineffective for "not pointing out and recognizing that Government changed its argument and position prior to remand and after."
"A change in the government's theory late in the case might constitute prejudicial variance [citation] or a constructive amendment [citation]. A critical consideration is whether the introduction of the new theory changes the offense charged [citations] or so alters the case that the defendant has not had a fair opportunity to defend [citations]." Lincoln v. Sunn, 807 F.2d 805, 813 (9th Cir. 1987).
Here, there was little change to the government's theory. The September 13, 2012 indictment alleged a single count of possession with intent to distribute cocaine base. (ECF No. 5.) Following the filing of a motion to suppress and related briefing, and the May 23, 2014 evidentiary hearing (ECF Nos. 45, 47-48, 53, 55, 57, 59), the district court judge denied the motion to suppress and the matter was set for trial. Movant was convicted of the single count on July 23, 2014, following jury trial. (ECF No. 104.) Movant was sentenced on January 15, 2015. (ECF No. 116-17.) Following an appeal (ECF Nos. 118-19), the Ninth Circuit Court of Appeals remanded the matter for further proceedings on March 11, 2016 (ECF No. 129). The higher court held, as to the remand:
Applying the attenuated basis and inevitable discovery doctrines to this case, the district court should consider whether the police would have interviewed Harris and his wife following the 911 call about the underlying domestic violence incident, thus learning the same information concerning Harris' parole status and place of residence. The district court should also determine whether the police would have conducted a sweep or search of the apartment after learning that Harris' residence was subject to warrantless searches, even if they had not discovered the cocaine in the kitchen. The district court should make these determinations following an evidentiary hearing. See, e.g., United States v. Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1999) (remanding the case to the district court for an evidentiary hearing to determine whether information police obtained during their first unconstitutional search tainted evidence obtained during the subsequent search under the fruit of the poisonous tree doctrine).(ECF No. 129 at 9-10.) Remand proceedings followed, including briefing by the parties (ECF Nos. 149, 154-55, 160) and an evidentiary hearing held March 31, 2017 (ECF No. 184). Just prior to the evidentiary hearing of March 31, the government filed a Motion for Order Defining Scope of Issues to be Heard at Evidentiary Hearing. (ECF No. 180.) That motion argued the Ninth Circuit's remand order required the court to "answer two - and only two - factual discrete questions: (1) whether the police would have interviewed Harris and his wife, Fornisha Evans, following the 911 call about the underlying domestic violence incident, and therefore learned the same information regarding Harris' parole status and residence; and (2) whether the police would have then conducted a sweep or search of the apartment after learning that Harris' residence was subject to a warrantless search, even if they had not discovered the cocaine in the kitchen." (ECF No. 180 at 1-2.) The district court granted the government's motion at the time of the March 31, 2017, evidentiary hearing. (ECF No. 184 [minutes reflecting motion granted].)
Given the remand by the Ninth Circuit Court of Appeals, the government was not required to maintain "its argument and position" as before. The Ninth Circuit's memorandum opinion expressly noted the basis for remand, and any objection asserting a change in the government's theory of the case would have been futile. Neither trial nor appellate counsel is required to make futile objections or frivolous arguments. Strickland, 466 U.S. at 693-94; Jones v. Smith, 231 F.3d 1227, 1239 n. 8 (9th Cir. 2000) (citing Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("the failure to take a futile action can never be deficient performance"). In any event, even assuming the parameters of the remand could be said to be a change in the government's theory of the case, movant had a fair opportunity to defend against any alleged change. Lincoln v. Sunn, 807 F.2d at 813.
Movant has failed to establish that trial or appellate counsels' performance was deficient in this regard or that he suffered prejudice as a result of that performance. Accordingly, this claim too should be denied.
Inevitable Discovery Issue
This issue has already been discussed. See Ground Four, ante, and the discussion regarding the law of the case doctrine.
Testimony Inconsistent with Evidence
Movant complains "that officer testimony was very inconsistent with the evidence" as it relates to the reason for the probation search, citing the evidentiary hearing transcript of March 2017, and that counsel failed to "attack" these inconsistencies. (ECF No. 193 at 11.)
To the degree movant attempts to, yet again, challenge the Ninth Circuit's ruling on the inevitable discovery doctrine, as previously explained, this court will not consider the claim as the law of the case doctrine applies.
Notably too, the scope of the testimony to be given at the evidentiary hearing held in March 2017 was limited to the Ninth Circuit's specific remand directives. (ECF Nos. 129 & 180.)
A review of the testimony given March 31, 2017, reveals defense counsel Kresta Daly cross-examined both Officers Canepa and Saber. (ECF No. 188 at 26-38, 39-40, 51-57.) More particularly, Daly questioned Canepa about how one runs a records check where a suspect does not provide a name, how records checks are accomplished, and how Canepa learned from Sabra that movant was on parole and subject to search. (ECF No. 188 at 39-40.) Daly questioned Sabra about how he learned movant's name in order to conduct a records search; Sabra did not specifically recall, but testified he believed movant provided his name while in the back of the patrol car. (ECF No. 188 at 51-57.) The undersigned's review of the officer' trial testimony does not reveal any deficiency on the part of defense counsel. (See ECF No. 122 [Canepa testimony] & ECF No. 105 [Canepa & Sabra testimony].)
Because the Ninth Circuit Court of Appeals found the search to be constitutional following remand, movant cannot establish prejudice. The circumstances surrounding the records check in relation to the search cannot serve to undo the Ninth Circuit's holding that the search of Evans' apartment was constitutional as a result of the inevitable discovery doctrine.
Here, there has been no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis, 476 U.S. at 346. This claim too should be denied.
Ground Seven: Ineffective Assistance of Counsel
In ground seven, his final argument, movant asserts (1) his attorney should have argued to the jury that had he and Evans been arrested the "dynamics of the case" would have changed the outcome of the case as both would have denied knowledge of the drugs, revealing Evans' lies and movant's position as the "fall guy" and (2) his attorney's failure to object to Nehring's testimony or to retain a defense expert on text messaging amounts to ineffective assistance of counsel. (ECF No. 193 at 12.)
Had Evans Been Arrested
This issue has already been addressed. See Ground Four, ante.
Defense Expert Should Have Been Retained
Movant complains defense counsel was ineffective for failing to retain a "real text messaging expert," because Agent Nehring's testimony on the subject of the text messages was "a total lie." (ECF No. 193 at 12.)
As noted elsewhere in these findings, the defense strategy involved challenging the assumption the Samsung cell phone found in Evans' apartment even belonged to movant. And therefore, by extension, challenging the content or meaning of text messages found on the cell phone was incompatible with or harmful to trial strategy. Strickland, 466 U.S. at 688-89.
In any event, to succeed on a claim of ineffective assistance of counsel based upon a failure to investigate or call a witness, movant must identify the witness in question, and state with specificity what that witness would have testified to, as well as how the witness' testimony might have altered the outcome of the trial. Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003). Movant must show that the witness in question was actually available and willing to testify. Id. at 872-73. Generally, this requires submission of affidavits from the witness himself. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000); see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), as amended by 253 F.3d 1150 (9th Cir. 2001) (mere speculation of possible helpful information from potential witnesses is not sufficient to show ineffective assistance of counsel).
Here, movant does not identify the "text messaging" expert, provide any declarations or affidavits from the expert, or state what specific evidence the expert would have provided had one been hired. Further, movant does not demonstrate that the outcome of the trial would have been different had a text messaging expert been hired. Strickland, 466 U.S. at 694. Here, again, there has been no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ...." Davis, 476 U.S. at 346. Thus, the undersigned recommends movant's claim as asserted in Ground Seven be denied.
Conclusion
Following careful review of the record, the undersigned recommends each of movant's claims be denied. Simply put, no "fundamental defect which inherently result[ed] in a complete miscarriage of justice ..." occurred. Davis v. United States, 417 U.S. at 346. Accordingly, movant's motion should be denied in its entirety.
IT IS HEREBY RECOMMENDED that:
1. Movant's August 27, 2018 motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 be denied (ECF No. 193);
2. Movant's motion to amend the traverse be denied (ECF No. 250); and
3. The Clerk of the Court be directed to close the companion civil case No. 2:18-cv-02353 MCE KJN.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If movant files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: November 2, 2020
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE