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United States v. Akers

United States District Court, E.D. California
May 27, 2008
No. CR S-04-0431 GEB JFM (E.D. Cal. May. 27, 2008)

Opinion

No. CR S-04-0431 GEB JFM.

May 27, 2008

JOSEPH J. WISEMAN, ESQ., CSBN 107403 JOSEPH J. WISEMAN, P. C. Davis, California Attorney for Petitioner SCOTT AKERS


ORDER


Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Since movant may be entitled to the requested relief if he can establish a violation of his constitutional rights, respondent is directed to file an answer within thirty days of the effective date of this order. See Rule 4, Rules Governing Section 2255 Proceedings.

Respondent shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the motion. Rule 5, Rules Governing Section 2255 Proceedings. Movant's traverse, if any, is due on or before thirty days from the date respondent's answer is filed.

The Clerk of the Court shall serve a copy of this order, together with a copy of movant's motion, on the United States Attorney or his authorized representative.


MOTION FOR RELIEF UNDER § 2255

Petitioner, SCOTT AKERS ("Akers"), by and through undersigned counsel, and pursuant to 28 U.S.C. § 2255, moves this court for

1. Name and location of court which entered the judgment of conviction under attack: U.S. District Court Eastern District

2. Date of judgment of conviction: December 12, 2005.

3. Length of sentence: The court sentenced Mr. Akers to 92 months in federal prison, to be followed by 36 months of supervised release.

4. Nature of offense involved (all counts): 18 U.S.C. 922(g)(1) and (g)(9) — Felon in possession of ammunition with a previous conviction for a Misdemeanor Crime of Domestic Violence.

5. What was your plea? Mr. Akers plead guilty and entered a formal Plea Agreement.

6. If you pleaded not guilty, what kind of trial did you have? N/A

7. Did you testify at the trial? N/A

8. Did you appeal from the judgment of conviction? Yes.

9. If you did appeal, answer the following:

(a) Name of court: United States Court of Appeals for the Ninth Circuit.
(b) Result: Conviction affirmed.
(c) Date of result: April 13, 2007
10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any federal court? No.
11. If your answer to 10 was "yes," give the following information:
(a)(1) Name of court: N.A.
(2) Nature of proceeding: N.A.
(3) Grounds raised: N.A.
(4) Did you receive an evidentiary hearing on your petition, application or motion? N.A.
(5) Result: N.A.
(6) Date of result: N.A.
(b) As to any second petition, application or motion give the same information: N.A.
(1) Name of court: N.A.
(2) Nature of proceeding: N.A.
(3) Grounds raised: N.A.
(4) Did you receive an evidentiary hearing on your petition, application or motion? N.A.
(5) Result: N.A.
(6) Date of result: N.A.
(c) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application or motion? N.A.
(1) First petition:
(2) Second petition:
(d) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not: N/A
12. State concisely every ground on which you claim that you are being held in violation of the constitution, laws or treaties of the United States.

GROUND ONE INEFFECTIVE ASSISTANCE OF COUNSEL

A. Statement of the Case

On November 1, 2004, a complaint was filed against Akers, charging him with being a felon in possession of ammunition with a previous conviction for domestic violence, a violation of 18 U.S.C. §§ 922(g)(1) and (g)(9). Akers was ordered detained as a flight risk pending trial. (C.R. 2, 3).

On November 17, 2004, Akers was indicted by a federal grand jury, which formally charged him with violating 18 U.S.C. §§ 922(g)(1) and (g)(9). (C.R. 6). Akers entered a "not guilty" plea to the charge, and demanded a jury trial. (C.R. 7).

On January 21, 2005, Akers filed a Motion to Suppress Evidence and Statements, and a Memorandum of Points and Authorities in Support. In his motion, Akers argued that (1) he was stopped illegally by Sacramento police officers; (2) this initial "Terry" stop ripened into an arrest for which probable cause was lacking; (3) he was searched illegally; (4) his post-arrest statements were inadmissible; and (5) the entry and search of his home without a warrant was illegal. Akers also requested the court to hold an evidentiary hearing on his motion. (C.R. 14).

On February 18, 2005, the government filed its' Opposition to Akers' motion, in which it argued that the case involved the fruits of a legal traffic stop, and a consensual entry and search of Akers' apartment. The government also argued that Akers failed to submit with his moving papers any affidavit supporting his version of the events, and, therefore, an evidentiary hearing was not warranted. (C.R. 18, 19).

Akers filed a Reply March 9, 2005, contending that the government must prove that the warrantless entry and search of his apartment was reasonable under the Fourth Amendment. In support of his argument that the police acted illegally, Akers attached to his Reply a declaration from his defense investigator who claimed to have interviewed two percipient witnesses who stated that Akers did not give the officers consent to search the apartment. (C.R. 20).

The government filed a Surreply Memorandum on March 10, 2005, in which it argued that the court should ignore Akers's Reply because it alleged new matters, and require him to provide something more than the hearsay declaration of his investigator in order to support his claims. (C.R. 21).

On March 11, 2005, the district court denied both Akers' request for an evidentiary hearing, and his motion to suppress. The court first ruled that it was not required to hold an evidentiary hearing because Akers motion lacked any supporting affidavits, and consisted solely of conclusory allegations of an illegal stop, search and seizure. The court then addressed the merits of the motion, and, relying on the declarations of the officers involved, ruled that the initial stop was legal and that Akers gave consent to the search of his apartment. Nevertheless, the court did allow Akers the opportunity to file a motion for reconsideration. Rep. Tr. of Mot. to Suppress, at 37-38, 40 (March 11, 2005). (C.R. 22).

The court did grant, however, that part of Akers' motion to suppress that dealt with the statements he made to the officers after they found the ammunition in his apartment. (C.R. 22; E.R. 6).

On March 16, 2005, Akers filed a Motion to Reconsider. He argued once again that the court should hold an evidentiary hearing, because Rule 47(b) does not require the motion to be supported by affidavits. This time, however, Akers submitted his own declaration denying that he gave the officers consent to search his home, as well as the declarations of two percipient witnesses to the events. (C.R. 23).

The two percipient witnesses were Monica Chavez and William Hopkins, the two witnesses identified in Defense Investigator Phil Oliver's declaration attached to Akers' Reply brief.

The government filed its Opposition on April 4, 2005, and argued that Akers' Motion to Reconsider presented no new issues or evidence that could not have been presented in his moving papers. (C.R. 26).

On April 15, 2005, the district court denied Akers's Motion to Reconsider, agreeing with the government that Akers should have submitted affidavits with his initial moving papers requesting an evidentiary hearing. Rep. Tr. of Mot. to Recons., at p. 3 (April 15, 2005). (C.R. 27). Then on April 22, 2005, the court appointed new counsel to represent Akers. (C.R. 28).

On August 12, 2005, Akers entered a conditional plea of guilty to violating 18 U.S.C. §§ 922(g)(1) and (g)(9). The Plea Agreement permitted Akers to appeal the denial of his Motion to Suppress and the denial of his Motion to Reconsider. (C.R. 42). On December 12, 2005, the court sentenced Akers to 92 months in federal prison, to be followed by 36 months of supervised release. The court also imposed a special assessment of $100, but waived imposition of a fine. (C.R. 45).

B. Statement of the Facts

The affidavits submitted by the parties in this case presented two starkly different versions of the events relating to the stop and search of Akers and the seizure of the ammunition from his apartment. The government version was detailed in police reports, which the arresting officers certified as being accurate in affidavits attached to the Government's Opposition. The police reports stated that at 10:30 p.m. on October 13, 2004, Sacramento Police Department Officers Kirtland, Sanchez, Sario, and Vu had received information that there was a white male engaged in narcotics trafficking at 2258 Empress Street, Apartment No. 2. Attach. to Govt. Opp'n (Sacramento Police Report 2004-392076 at p. 5 ("Police Report") and Affidavit of Officer Vu).

The police report consisted of nine pages with the page numbers handwritten at the bottom right corner of each page.

The police report also stated that the officers drove by the apartment in their unmarked vehicles, and saw a white man and Hispanic woman leave the apartment. The white man closed and locked the apartment door, after which both got on bicycles and rode down the street. Id.

The two cyclists proceeded southbound on Empress towards Arden Way on the wrong side of the street. Officers Kirtland and Sanchez got out of their car and made contact with the woman, Monica Chavez, while Officers Sanchez and Vu drove up to Akers. From his car, Officer Vu could see a knife protruding from the Akers' right front pant pocket. Id.

Officers Sanchez and Vu stopped Akers for riding a bicycle on the wrong side of the road, a violation of California Vehicle Code § 21650.1. According to the police report, Officer Vu immediately recognized Akers as a former parolee, who had been living in a different unit of 2258 Empress Street. Id.

Officer Vu took the knife from Akers' pocket. It was a hunting knife with a six-inch blade, housed in a cardboard sheath. Police Report at pp. 5, 8 (E.R. 3). Asked why he was carrying the knife, Akers allegedly said, "C'mon, man, look at what kind of neighborhood I live in." Id. at 5.

Chavez was then taken into custody after the police discovered she had five outstanding arrest warrants. Id. at 5-6.

Officer Kirtland then asked Akers if they could all go inside his apartment to talk. Akers replied, "Yeah, let's go," and unlocked the door to his apartment. Once inside, Officer Vu took Akers to the kitchen told him the police had information that he was selling amphetamines. Akers adamantly" denied this, and said that the police could search his one-bedroom apartment to see for themselves. Id. at 6.

After obtaining Akers' consent, the police report states the officers began to search the apartment. In a dresser in the bedroom, they found a loaded Raven Arms .25 caliber semi-automatic pistol, and two boxes of ammunition, one with fifty rounds, the other with only thirty-six rounds. Id.

Officer Vu then went back into the kitchen, told Akers he had just searched his bedroom, and asked him if he was sure that there was nothing illegal in the bedroom. Akers responded that there might be a gun. When asked why he would consent to search when he knew there was a gun in the apartment, Akers allegedly said that since he was no longer on parole, he thought he could legally possess a gun. He then admitted he got the gun from his friend, Robert, who had brought it over because Robert had been fighting with a female friend and did not want her to use it on him. Id.

The police arrested Akers after he confessed to possessing the firearm found in his bedroom. Id. at 7.

Akers' affidavit, attached to his Motion to Reconsider, painted an entirely different picture. In his affidavit, Akers stated that while riding his bicycle on a public street, he was cutoff by a police car. A police officer got out of the patrol car and asked him if he was on probation or parole. Akers responded in the negative, after which the officer said that the police had heard that he was selling dope out of his apartment, and that they were going to have a look. Attach. to Mot. to Recons. (Declaration of Scott Akers dated March 15, 2005).

The police officers then escorted Akers and two of his friends — Monica Chavez and William Hopkins — back to Akers' apartment, where they ordered him to turn over his key. The officers then entered the apartment and instructed Akers and his friends to sit on the couch. The officers then began to search the apartment, and eventually brought Akers into the kitchen area where they began questioning him about a gun they claimed they found. Id.

C. Statement of the Law

In moving to suppress evidence in federal court, the moving party's motion must allege facts with sufficient definiteness, clarity and specificity to enable the trial court to conclude that contested issues of fact exist." United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000), cert denied, 534 U.S. 831 (2001), citing United States v. Harris, 914 F.2d 927, 933 (7th Cir. 1990) ("A hearing will not be held on a defendant's pre-trial motion to suppress merely because a defendant wants one. Rather, the defendant must demonstrate that a 'significant disputed factual issue' exists such that a hearing is required.").

The Sixth Amendment guarantees the right to effective assistance of counsel in criminal prosecutions. See McMann v. Richardson, 297 U.S. 759, 771 n. 14 (1970) (6th Amendment right to counsel is right to effective assistance of counsel).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test to evaluate ineffective assistance claims. To obtain reversal of a conviction under the Strickland standard, the defendant must prove that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome in the proceeding. Id. at 687.

Under the performance prong of the Strickland standard, there is a "strong presumption" that counsel's strategy and tactics fall "within the wide range of reasonable professional assistance." Id. at 689; see also Bell v. Cone, 535 U.S. 685, 702 (2002) ("tactical decisions about which competent lawyers might disagree" does not qualify as objectively unreasonable); Raley v. Ylst, 444 F.3d 1085, 1091 (9th Cir. 2006) ("A disagreement with counsel's tactical decisions does not provide the basis for declaring that the representation was constitutionally deficient), amended by 407 F.3d 792 (9th Cir. 2006).

Under Strickland, a court "must determine whether in light of all of the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 at 690.

Here, in light of the fact that Ninth Circuit law is clear that a moving party must allege in his moving papers sufficient facts to raise a contested issue, there was no strategic reason for Akers' trial counsel to omit the relevant declarations of the percipient witnesses in Akers' moving papers supporting his motion to dismiss. Counsel's omission cannot be grounded on a sound tactical decision that should be insulated from judicial review.

Secondly, trial counsel's deficient performance prejudiced Akers for it prevented him from having an evidentiary hearing on his motion to suppress, which is a "substantive . . . procedural right to which the law entitles him." Williams v. Taylor, 529 U.S. 362, 391-93 (2000). In this case, there is a reasonable probability that but for trial counsel's unprofessional error in failing to file adequate moving papers supporting Akers' motion to suppress, the result of the proceeding would have been different, and Akers would have prevailed on his motion. See Strickland, 466 U.S. at 692; see also Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (counsel's failure to file a timely suppression motion was prejudicial because unreasonable and below prevailing professional norms).

13. If any of the grounds listed in 12A. B. C. and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them: N.A.

14. Do you have any petition or appeal now pending in any court as to the judgment under attack? No.

15. Give the name of each attorney who represented you in the following stages of judgment attacked herein:

(a) Pretrial Procceedings: Linda Harter, Assistant Federal Defender, 801 I Street, 3rd Floor, Sacramento, CA 95814.
(b) At sentencing: Joseph J. Wiseman, Esq., 1477 Drew Avenue, Davis, CA 95618.
(c) On appeal: Joseph J. Wiseman, Esq., 1477 Drew Avenue, Davis, CA 95618.
(d) In any post-conviction proceeding: Joseph J. Wiseman, Esq., 1477 Drew Avenue, Davis, CA 95618.

16. Were you sentenced on more than one count of an indictment, or on more than one indictment in the same court and at approximately the same time? No.

17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? No.

(a) If so, give name and location of court which imposed sentence to he served in the future:
(b) Give date and length of the above sentence:
(c) Have you filed, or do you contemplate filing. any petition attacking the judgment which imposed the sentence to be served in the future? No.

WHEREFORE, Akers prays that the Court grant petitioner relief to which he may be entitled in this proceeding./s/Joseph J. Wiseman

Dated: April 8, 2008 Respectfully submitted, JOSEPH J. WISEMAN, P.C. By: JOSEPH J. WISEMAN Attorney for Scott Akers


Summaries of

United States v. Akers

United States District Court, E.D. California
May 27, 2008
No. CR S-04-0431 GEB JFM (E.D. Cal. May. 27, 2008)
Case details for

United States v. Akers

Case Details

Full title:UNITED STATES OF AMERICA, Respondent, v. SCOTT K. AKERS, Movant

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

Date published: May 27, 2008

Citations

No. CR S-04-0431 GEB JFM (E.D. Cal. May. 27, 2008)