Opinion
No. A99-0062-CR (HRH).
October 4, 2005
Decision on Motion to Vacate
Defendant Donald Ritchie moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. This motion is opposed. The motion was considered by the assigned magistrate judge, who has served and filed an initial report and recommendation which recommended that defendant's § 2255 motion be denied. Defendant objected, and plaintiff filed a response to defendant's objection. After consideration of defendant's objection and plaintiff's response thereto, the magistrate judge held an evidentiary hearing on defendant's claim that he was denied effective assistance of trial counsel on search and seizure issues. The evidentiary hearing was held on August 18, 2005, after which the parties were given an opportunity to file supplemental briefing. The magistrate judge then filed and served a final report and recommendation, which continues to recommend that defendant's § 2255 motion be denied in its entirety.
Clerk's Docket No. 101, as amended by order at Clerk's Docket No. 169, with new statement of grounds for relief set forth at Clerk's Docket No. 192.
Clerk's Docket Nos. 112, 122, 172, and 198.
Clerk's Docket No. 211.
Clerk's Docket No. 212.
Clerk's Docket No. 215.
Clerk's Docket No. 216.
Clerk's Docket No. 226.
Background
On April 28, 1999, Adam Hankins was arrested as a result of an on-going investigation into methamphetamine manufacturing in Anchorage, Alaska. After his arrest, Hankins told law enforcement officials that defendant was involved in methamphetamine manufacturing and that defendant had agreed to teach Hankins how to manufacture methamphetamine for a fee of $500.00. Hankins claimed that he had been present when defendant manufactured methamphetamine at several houses in Anchorage, including one located at 2729 E. 17th Avenue. Hankins also told law enforcement officials that at the time of his arrest he had been "awake" on methamphetamine for four to five days.On April 29, 1999, Detective David A. Koch and two uniformed officers went to the house on 17th Avenue looking for defendant. The door was answered by Heather Horner who advised the officers that defendant was not there. The officers told Horner that they needed to look for themselves and entered the home. Also present in the home at the time were Michelle Alto, whom Koch recognized from other drug investigations; Kelly Shirley; and Horner's two children. The officers remained in the home for approximately twenty minutes, at which time Horner asked them to leave. The officers left after Horner requested that they do so. No evidence was seized from the house at that time.
Later on that same day, April 29, 1999, a search warrant was issued for the house on 17th Avenue. The application for the search warrant was supported by Koch's affidavit. Numerous items associated with the manufacture of methamphetamine were seized from the house on 17th Avenue.
On May 1, 1999, defendant was arrested at Room 217 of the Executive Suites Motel in Anchorage. Also present at the hotel room were Horner and Shirley.
After his arrest, defendant admitted that he had manufactured methamphetamine two times since his arrival in Alaska in the fall of 1998. Defendant also admitted that he had taught others how to manufacture methamphetamine for a fee of $500.00. Defendant further admitted that Hankins was one of his students and that Hankins had paid him $100.00 but still owed him $400.00.
After defendant's arrest, law enforcement officials, pursuant to a search warrant, searched the hotel room where defendant had been arrested. Officers seized various items associated with the manufacture of methamphetamine from the hotel room. They also seized three handguns. They also found a receipt for the search warrant served the day before at 2729 E. 17th Avenue and a California ID card in defendant's name. The officers also searched a Ford pick-up that was parked in front of the hotel room and seized various items associated with the manufacture of methamphetamine from the pick-up.
Prior to trial, defendant's counsel filed a motion to suppress defendant's post-arrest statements on the ground that defendant had not received adequate Miranda warnings. An evidentiary hearing was held on the motion to suppress at which two DEA agents, Horner, and Shirley testified. The assigned magistrate judge denied the motion to suppress.
Defendant was convicted on four counts following a jury trial: 1) manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1); 2) attempted manufacture of methamphetamine in violation of 21 U.S.C. § 846; 3) possession of methamphetamine in violation of 21 U.S.C. § 844(a); and 4) a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant was sentenced to serve 292 months in prison.
Defendant appealed his conviction and sentence. The Ninth Circuit Court of Appeals affirmed defendant's conviction and sentence on September 7, 2001. Defendant's Petition for Certiorari was denied on April 29, 2002. Defendant subsequently filed the instant § 2255 motion, in which he alleges four grounds for relief: 1) that his Sixth Amendment rights were violated by his trial attorney who failed to provide effective assistance of counsel; 2) that his due process rights were violated by the government which failed to disclose exculpatory evidence; 3) that the evidence presented at trial was insufficient to support a conviction on the felon in possession charge; and 4) that his Sixth Amendment rights were violated because his punishment was increased by elements that were not found by the jury.
See Clerk's Docket No. 70.
See Clerk's Docket No. 98.
Discussion Ground One: Ineffective Assistance of Trial Counsel
Defendant contends that his trial attorney provided ineffective assistance because he: 1) failed to file a motion to suppress evidence seized at defendant's alleged residence on East 17th Avenue in Anchorage, Alaska; 2) inadequately represented defendant at sentencing on the quantity of drug issue; and 3) inadequately represented defendant during a pre-trial evidentiary hearing on defendant's motion to suppress post-arrest statements. "To establish ineffective assistance of counsel, [defendant] must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense." United States v. Fry, 322 F.3d 1198, 1199 (9th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). As for the first prong of the test, "[t]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 689). "'Judicial scrutiny of counsel's performance must be highly deferential.'" Id. "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.'" Id. (quoting Strickland, 466 U.S at 687, 689). "'[T]he relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable.'"Id. (quoting Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998)). As for the second prong of the Strickland test, "[a] deficient performance prejudices a defense if there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"United States v. Alaimalo, 313 F.3d 1188, 1192 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 694). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. Thus, the second prong of theStrickland test "'requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Id. (quoting Strickland, 466 U.S. at 687).
1. Motion to Suppress Evidence
Defendant contends that he received ineffective assistance of trial counsel because his trial attorney never filed a motion to suppress evidence seized from defendant's alleged residence on East 17th Avenue. This claim of ineffective assistance of counsel has four parts: 1) failure to move to suppress evidence that was the fruit of the initial warrantless search, 2) failure to challenge the validity of the search warrant on probable cause grounds, 3) failure to make a Franks challenge to the search warrant, and 4) failure to challenge the validity of the search warrant because Alaska Criminal Rule 37 and the informant's privilege were violated.
a. warrantless search
Defendant argues that his trial counsel should have filed a motion to suppress evidence discovered during the warrantless search of the house on 17th Avenue. In his final report and recommendation, the magistrate judge aptly concluded that the government had not met its burden of showing by convincing evidence that Horner freely gave her consent to the search of the residence on 17th Avenue. Thus, the warrantless search of the house on 17th Avenue on April 29, 1999 was illegal.
Final Recommendation regarding Ritchie's § 2255 Motion at 4, Clerk's Docket No. 226.
Although no evidence was seized during the warrantless search of the 17th Avenue house, evidence was seized later that day pursuant to a search warrant. Defendant argues that the evidence that was seized pursuant to the search warrant was the fruit of the illegal search and thus his trial attorney should have moved to suppress this evidence.
The application for the search warrant for the house on 17th Avenue was supported by the affidavit of Detective Koch, who was present during the illegal warrantless search. The affidavit does not include any mention of any observations made by Koch during the warrantless search of the house on 17th Avenue. The only mention of the warrantless search is in paragraph 47 of the affidavit, which reads in its entirety:
On 4-29-99 I responded to 2729 E 17th in an attempt to contact Donald Ritchie. At the residence I contacted Heather L. Horner who told me Don was not home at the moment but did acknowledge his living there. Heather allowed me to walk through and insure Don was not at home then ordered me from the home. Also present in the home was Michelle Alto who I know from prior drug contacts.
Affidavit of David A. Koch at 20, ¶ 47, Exhibit 1, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
The affidavit does not contain any specific mention of any particular item that the officers saw during their warrantless search. Rather, the affidavit makes reference to Attachment A, which is a two-page document that describes items associated with the manufacture of methamphetamine and which Koch averred were believed to be located at the 17th Avenue residence. Koch does not state in his affidavit that any of the items listed in Attachment A were observed during the warrantless search.
Id. at 21, ¶ 51.
Defendant contends that Koch could not have known of the probable existence of the items listed in Attachment A but for the warrantless search. Defendant points out that in paragraph 51 of the affidavit, Koch states that "[b]ased upon the above information I believe that the items listed on Attachment A will be found in the residence at . . . 2729 E 17th[.]" Defendant seems to suggest that a reasonable inference that can be drawn from this statement is that Koch's belief that the items in Attachment A can be found at the house on 17th Avenue was based, in part, on the warrantless search.
Id.
Koch testified at the evidentiary hearing that Attachment A is a standard, boilerplate listing of items expected to be found in connection with methamphetamine manufacturing and that different generic attachments were used depending on the drug involved. Koch testified that
Transcript of Proceedings re Evidentiary Hearing on Defendant's 28:2255 Motion at 43, lns. 16-19, Clerk's Docket No. 225.
Id. at 42, lns. 9-15.
the only thing that I added to the Attachment A is the number for the search warrant, and in the case of the one that you provided me, Search Warrant 99-168 SW, that's handwritten on there. Everything else is just printed off of a disc with attachments.
Id. at 43, ln. 22 through 44, ln. 1.
Koch's testimony confirms what the face of the affidavit reveals, that Koch was not relying on any observations made during the warrantless search to support the application for a search warrant. Koch further testified, "[a]s you can tell from my voluminous affidavit, if I had another little piece to put in there in support of probable cause, I'd've put it in there." Thus, if specific items associated with the manufacture of methamphetamine had been observed during the warrantless search, it is more likely than not that this information would have been included in the affidavit.
Id. at 53, lns. 5-8.
Attachment A was a generic list of items expected to be found in a place where methamphetamine was being manufactured. It was not based on what the officers observed during the warrantless search. Therefore, the evidence seized pursuant to the search warrant was not the fruit of the earlier illegal search. Defendant's trial counsel had no valid reason to file a motion to suppress the evidence seized from the house on 17th Avenue and his tactical decision to not do so cannot support a claim of ineffective assistance of counsel. Because defendant has not shown that his trial counsel's performance was deficient as to this issue, the court need not consider defendant's arguments on this issue as they relate to the second prong of the Strickland test.
b. Probable Cause
Defendant next contends that his trial attorney failed to provide effective assistance because he did not challenge the validity of the search warrant on probable cause grounds. Defendant insists that Koch's affidavit was insufficient to support a finding of probable cause to search the house on 17th Avenue. "An affidavit in support of a search warrant demonstrates probable cause if, under the totality of the circumstances, it reveals a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Celestine, 324 F.3d 1095, 1102 (9th Cir. 2003).
Defendant first argues that if the evidence that the officers saw during the warrantless search were removed from the affidavit, Koch's affidavit would not be sufficient to demonstrate probable cause. As discussed above, there is no evidence in the affidavit based on what the officers saw during the warrantless search; so, this argument fails.
Defendant next argues that the affidavit contains many hearsay statements by unnamed confidential informants and by Hankins, all of whose credibility is questionable. In issuing a search warrant, a judge or magistrate "should consider an informant's veracity, reliability and basis of knowledge" in making a determination that there is probable cause. United States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004). Here, the information provided by confidential informant P99-14 and Hankins that there was criminal activity occurring at the house on 17th Avenue was corroborated by independent police investigation and by information provided by other confidential informants. Against such a backdrop, defendant's trial counsel's tactical decision to not challenge the validity of the search warrant on this ground was objectively reasonable.
See Koch Affidavit at 18, ¶ 4; 20, ¶ 45; and 20-21, ¶ 48, Exhibit 1, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
Defendant also argues that his trial counsel should have challenged the validity of the search warrant because Koch's affidavit fails to connect defendant with any illegal activity at the house on 17th Avenue. This argument fails because there was sufficient information in Koch's affidavit connecting suspected illegal activity at the 17th Avenue house to defendant. Koch's affidavit detailed that a confidential informant had told him that defendant was the head of a group of people making and selling methamphetamine, and that Hankins had told Koch that he learned to "cook" from defendant, that defendant lived at 2729 E. 17th, that defendant cooked methamphetamine nightly, that Hankins paid defendant $100.00 of a $500.00 fee required for methamphetamine cooking lessons, that Hankins had been present with defendant on several cooks, that Hankins had been present when defendant cooked methamphetamine at the house on 17th Avenue, and that Hankins knew that defendant stored chemicals, glassware and other methamphetamine manufacturing items at the home on 17th Avenue. This information sufficiently connected defendant with illegal activity at the 17th Avenue house. A challenge to the search warrant on this ground would have been frivolous. Defendant's trial counsel's choice not to file a frivolous motion was objectively reasonable, and the court need not consider defendant's arguments as to the second prong of the Strickland test on this issue.
Koch Affidavit at 6, ¶ 15, Exhibit 1, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
Id. at 18-19, ¶ 41.
c. Franks Challenge
Defendant argues that his trial attorney was ineffective because he failed to make a Franks challenge to the search warrant. "In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that, under certain circumstances, a defendant is entitled to an evidentiary hearing to afford the defendant an opportunity to attack the veracity of a facially-valid affidavit used to support a search warrant." United States v. Valencia, 24 F.3d 1106, 1108-09 (9th Cir. 1994). "[A] party moving for a Franks hearing must submit 'allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.'" United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002) (quotingFranks, 438 U.S. at 171). "Furthermore, the movant must show that any omitted information is material." Id. "In determining materiality, '[t]he pivotal question is whether an affidavit containing the omitted material would have provided a basis for a finding of probable cause.'" Id. (quoting United States v. Garcia-Cruz, 978 F.2d 537, 541 (9th Cir. 1992)).
Defendant contends that Koch's affidavit was intentionally misleading because it omitted the facts 1) that Hankins had been awake for four to five days on drugs without sleep at the time he provided the information relied on in the affidavit and 2) that law enforcement officers had conducted a warrantless search of the house on 17th Avenue hours just hours prior to applying for the search warrant. Defendant argues that had these facts been known, the search warrant would not have been issued because the judge would not have found Hankins' testimony credible and would not have issued a warrant based on an illegal search.
The fact that Hankins had been "awake" for four to five days prior to his arrest was not material. Even without this information, there was sufficient information in the affidavit from which the judge issuing the search warrant could have evaluated the credibility of Hankins, including that Hankins admitted that he had a meth problem and that he was providing information in hopes of mitigating his sentence. As to the warrantless search, Koch's affidavit contains a reference to his being at the house on 17th Avenue just hours prior to applying for the search warrant. Thus, the fact that Koch had been at the house on 17th Avenue earlier that same day was not omitted. What was omitted was the fact that Koch's entry into the home might not have been consensual. But, this fact was not material given that Koch, in his affidavit, did not rely on any observations made during the warrantless entry. Defendant's trial counsel's choice not to file a Franks challenge to the search warrant was objectively reasonable, and the court need not consider defendant's arguments as to the second prong of theStrickland test on this issue.
Koch Affidavit at 18, ¶ 40, Exhibit 1, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
d. Alaska Criminal Rule 37 and Informant's Privilege
Defendant argues that his trial attorney should have also challenged the validity of the search warrant because of violations of Alaska Criminal Rule 37(d) and the informant's privilege. Defendant's argument on this issue is not entirely clear but he appears to be suggesting that his trial attorney should have moved for disclosure of the identity of P99-14, the confidential informant whose information Detective Koch relied on in his affidavit. Alaska Criminal Rule 37(d) permits such a motion for disclosure if a person wishes to challenge the validity of the search warrant predicated on information provided by an informant.
Alaska Criminal Rule 37 has no federal counterpart. That rule has no application to search warrant proceedings in federal court. In fact, "[i]t is well-settled . . . that 'a trial court need not require federal agents to disclose the identity of a reliable informant where the sole ground for seeking that information is to establish the existence of probable cause. . . .'" United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986) (quoting United States v. Mehciz, 437 F.2d 145, 149 (9th Cir. 1971)).
Assuming though for the sake of discussion that defendant might have sought the identity of the informant, defendant does not explain how knowing the identity of P99-14 would have allowed his trial counsel to mount a challenge to the validity of the search warrant. If it were for credibility purposes, such a motion would have been unnecessary. Koch's affidavit makes it quite clear that P99-14 had recently been released from jail and that P99-14 had a criminal background. Defendant's trial counsel's performance was not deficient because he failed to move for disclosure of the identity of the confidential informant. Because his trial counsel's performance as to this issue was not deficient, the court need not consider defendant's arguments as to the second prong of theStrickland test on this issue.
Koch Affidavit at 5-6, ¶ 14, Exhibit 1, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
2. Quantity of Drug Issue
Defendant contends that his trial counsel failed to adequately challenge the quantity of drugs used for sentencing purposes on Counts I and III. Based on the drugs seized from the house on 17th Avenue, the hotel room where defendant was arrested, and defendant's pick-up, the presentence report found that "[f]or statutory penalty purposes, Count 1 is determined to represent 41.5 grams of methamphetamine (actual) and Count 3 is determined to have 52.3 grams of methamphetamine (actual). . . ." Counts I and III were grouped together to determine the base offense level. Added to the 93.8 grams (actual) discussed above were 336 grams based on Hankins' statement that he had participated in six "cooks" with defendant and 198.45 grams based on the two "cooks" that defendant admitted. Thus, the total quantity of drugs for sentencing purposes for Counts I and III was determined to be 628.25 grams of methamphetamine (actual).
Presentence Investigation Report at 6, ¶ 20, Exhibit 2, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
Id. at 9, ¶ 31.
Id.
Defendant argues that the above calculations are flawed for several reasons: 1) the conversion rate used to estimate the amount of methamphetamine involved in Counts I and III based on the amount of psuedophederine recovered was too high; 2) the 336 grams of methamphetamine attributed to Hankins' statement that he participated in six "cooks" with defendant was not established by a preponderance of the evidence; 3) the drugs seized at the hotel where defendant was arrested should not have been attributed to defendant; and 4) the drugs seized at the house on 17th Avenue should not have been attributed to defendant. Although defendant concedes that his trial attorney filed objections to the drug quantity calculations in the presentence report, defendant argues that his trial counsel should have taken the next step, which was to move for an evidentiary hearing on the drug quantity issue. Because a great deal of the drug quantity was based on Hankins' statements, defendant contends that a evidentiary hearing was necessary so that the sentencing court could evaluate whether Hankins' allegations were credible. Defendant also emphasizes the fact that the probation officer suggested in the presentence report that an evidentiary hearing on the drug quantity issue might be necessary.
As noted above, defendant took exception to the calculation of the drug quantity in his objections to the presentence report. In addition, defendant raised objections to the drug quantity in his sentencing memorandum, and defendant's trial counsel presented extensive argument on the drug quantity issue at sentencing. In short, defendant's trial counsel challenged the drug quantity used for sentencing at every possible turn. The only thing he did not do was request an evidentiary hearing.
Addendum to the Presentence Report at 3-5, Exhibit 2, Opposition to Motion for Relief under 28 U.S.C. § 2255, Clerk's Docket No. 112.
Clerk's Docket No. 66.
Partial Transcript of Proceedings re Imposition of Sentence at 7-19, Clerk's Docket No. 75.
Foregoing an evidentiary hearing was a reasonable tactical decision to make. First of all, as the court made clear during the imposition of sentence, it had already considered Hankins' credibility during defendant's trial. Secondly, defendant does not suggest that he would have had any new evidence to present at an evidentiary hearing on drug quantity. The court had already heard at trial what evidence there was to hear on the drug quantity issue and an evidentiary hearing on this matter would have been a waste of time and resources; and there is always the possibility that an evidentiary hearing could lead to a finding of more not less methamphetamine. Defendant's trial counsel's choice not to request an evidentiary hearing on the drug quantity issue was objectively reasonable, and the court need not consider defendant's arguments on this issue as they relate to the second prong of the Strickland test.
Id. at 23, lns. 11-23.
3. Pre-trial Evidentiary Hearing
Prior to trial, defendant moved to suppress his post-arrest statements on the ground that the arresting officers had failed to properly advise him of his Miranda rights. An evidentiary hearing was held on the motion to suppress on June 15, 1999. Defendant contends that his counsel ineffectively handled the cross-examination of a government witness at the hearing and that his motion to suppress would have been granted but for this mishandling.
Plaintiff called DEA Agent Ian McKenzie as a witness at the hearing. McKenzie testified that he "advised Mr. Ritchie of hisMiranda warning." McKenzie further testified that he advised defendant
Transcript of Proceedings re Evidentiary Hearing on Defendant's Motion to Suppress Statements at 6, lns. 21-22, Clerk's Docket No. 26.
that he had the right to remain silent. He had the right to have an attorney present before any questioning started and during any questioning. He had the right to stop any — if he just — if he chose to start answering our questions, he had the right to stop at any time. And if he could not afford an attorney, one would be appointed for him at no cost to him, at the expense of the government. And I asked him if he understood his rights, which he indicated he did.
Id. at 8, lns. 4-11.
Absent from this list is the warning that any statements made by defendant could be used as evidence against him. In United States v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992), the court called this warning the "most critical" of all Miranda warnings "because it lies at the heart of the need to protect a citizen's Fifth Amendment rights" and found a Miranda warning that failed to include this element deficient.
Defendant argues that his trial attorney should have realized this and not cross-examined McKenzie. Instead, defendant's trial counsel choose to cross-examine McKenzie who then testified that
there's one thing I forgot to mention on my earlier testimony. Another part of the Miranda warning that I issued was that anything he said could be used against him in court. I don't believe I said that earlier under direct.
Id. at 10, lns. 6-10.
Defendant argues that a competent attorney would not have given McKenzie an opportunity to correct his testimony on cross-examination and that had his attorney not done so, the motion to suppress would have been granted.
Having reviewed the transcript of McKenzie's direct testimony, the court is not convinced that trial counsel's decision to cross-examine McKenize was objectively unreasonable. But, even if it had been, and the court emphasizes that it is not making such a finding, there was no prejudice to defendant's defense.
After McKenzie offered the above testimony, the following exchange took place:
Q All right. You forget to mention that just now, didn't you?
A Just now, that's correct.
Q Yeah. And it's quite possible, isn't it, that you forgot to mention something like that when you were giving him his Miranda rights then in the hallway, isn't it?
A Absolutely not.
Q You're telling me that you could forget something here today, but there's no possible way you could have forgotten it then?
A I'm saying I did not forget it then.
Q Ah. You're certain of that?
Id. at lns. 11-22.
Defendant's trial attorney raised the issue again during his closing remarks. Defendant's trial attorney took full advantage of the fact that McKenzie failed to mention one of the required warnings during his direct testimony and tried to convince the magistrate judge that this was reason to grant the motion to suppress.
Id. at 39, ln. 21 through 40, ln. 4.
In addition, the DEA agent-in-charge, Zoren Yankovich, also testified on behalf of plaintiff at the evidentiary hearing. Yankovich corroborated McKenzie's testimony that he had properly advised defendant of his Miranda rights. Thus, even if defendant's trial attorney had decided not to cross-examine McKenzie, there still would have been Yankovich's direct testimony that defendant had properly been advised of hisMiranda rights, testimony to which the magistrate judge more likely than not would give great weight.
Id. at 16, ln. 19 through 17, ln. 23.
The court concludes that defendant's trial attorney tactical decision to cross-examine McKenzie was objectively reasonable. But even if it had not been, there has been no prejudice to defendant's defense.
In sum, defendant has not shown that his trial counsel's performance was deficient in any way. None of the tactical decisions made by defendant's trial counsel of which defendant complains were objectively unreasonable. Defendant's § 2255 motion is denied as to ground one.
Ground Two: Brady Claim
Defendant contends that plaintiff failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Supreme Court in Brady held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Id. at 87. The undisclosed evidence here was an interview of Heather Horner by a DEA agent on the day of defendant's arrest during which Horner stated
1) that she had kicked defendant out of the house on 17th Avenue one month prior to the house being searched;
2) that she was renting the third bedroom in the house to a James Felty;
3) that she had forced her way into Felty's bedroom and found materials that she knew were used in methamphetamine manufacturing;
4) that she had placed these items in a laundry basket outside Felty's room; and
5) that Felty and Hankins had unlimited access to the residence on 17th Avenue.
Interview of Heather L. Horner at 1, Exhibit G, Motion, Clerk's Docket No. 101.
"To establish a Brady violation, the evidence must be (1) favorable to the accused because it is either exculpatory or impeachment material; (2) suppressed by the government, either willfully or inadvertently; and (3) material or prejudicial."United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004). Plaintiff does not dispute that the evidence in question was favorable to defendant because it was either exculpatory or could have been used to impeach Hankins, who testified as a government witness at defendant's trial. Plaintiff has also concedes for purposes of the instant motion that "it should be assumed that [Horner's] statement was not produced."
Plaintiff's Supplemental Briefing in Response to Order at Docket No. 203 at 2, Clerk's Docket No. 208.
However, a defendant "cannot claim a Brady violation if he was 'aware of the essential facts enabling him to take advantage of any exculpatory evidence. . . .'" United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (quoting United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978)). As plaintiff has pointed out, Horner was not a witness whose identity or testimony was unknown to defendant. Horner was defendant's fiancé, they had a child together, she was with him when he was arrested, and she testified on his behalf at a pre-trial evidentiary hearing. Defendant makes much of the fact that Horner's children had been taken into state custody after her residence had been searched and that she testified at the pre-trial evidentiary hearing that her lawyer had advised her not to discuss the case. Defendant argues that in light of the litigation involving her children, it is quite likely that Horner was advised by counsel not to cooperate with defendant's defense. In a similar vein, the magistrate judge concluded that it is as unlikely as it is likely that defense counsel would have known what Horner told the DEA agent.
The court disagrees. Horner's relationship with defendant is significant and defendant's contention that Horner would not have cooperated with his defense is specious. At the pre-trial evidentiary hearing, Horner did testify that her lawyer had told her not to say anything but it was not in the context of not cooperating with defendant's defense. Rather, Horner testified that she made this statement to the DEA agents who were at the motel "[b]ecause they were harassing me, wanting to — me to let them search my room, or the room." The very fact that Horner testified on defendant's behalf at the pre-trial evidentiary hearing is strong evidence that she was cooperating with defendant's defense. Further evidence of Horner's willingness to cooperate with defendant's defense is found in her testimony at the August 18, 2005 evidentiary hearing. Horner testified that she talked to defendant's trial counsel "about, it seemed like, everything" and that she spoke to him "on several occasions" about her property that had been taken from the house on 17th Avenue as well as "other pieces" of defendant's case. Horner was also present at defendant's sentencing and was willing to testify on his behalf at that time about the drug quantity issue.
Transcript of Proceedings re Evidentiary Hearing on Defendant's Motion to Suppress Statements at 32, lns. 15-19, Clerk's Docket No. 26.
Id. at lns. 21-23.
Transcript of Proceedings re Evidentiary Hearing on Defendant's 28:2255 Motion at 17, lns. 15-25, Clerk's Docket No. 225.
Id. at 18, lns. 8-15.
From all appearances, Horner was very involved in defendant's defense and had regular contact with defendant's trial attorney. Thus, defendant was aware, or should have been aware, that Horner had exculpatory evidence and he could have taken advantage of that evidence even without the disclosure of Horner's DEA interview. There has been no Brady violation here, and defendant's § 2255 motion is denied as to ground two.
Ground Three: Insufficient Evidence
Defendant contends that there was insufficient evidence to support the felon in possession conviction. Defendant raised this issue in his direct appeal. The Ninth Circuit concluded that "there was sufficient circumstantial evidence to support the conclusion that the gun found in the motel room was under Ritchie's dominion and control." United States v. Ritchie, 18 Fed. Appx. 621, 624 (9th Cir. 2001). "[A] district court may refuse to entertain a repetitive petition absent a showing of manifest injustice or a change in law." Polizzi v. United States, 550 F.2d 1133, 1135 (9th Cir. 1976). Defendant contends that there has been a change of law. Defendant insists thatUnited States v. Carrasco, 257 F.3d 1045 (9th Cir. 2001), sets forth a new test for constructive possession. Carrasco does not set out a new test for constructive possession. In setting forth the test for constructive possession, the court of appeals quoted directly from United States v. Gutierrez, 995 F.2d 169, 171 (9th Cir. 1993) andUnited States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990). The court of appeals in Carrasco said nothing new about the law as it relates to constructive possession.
But even if Carrasco set forth a new test for constructive possession, the court would not reconsider the question of whether there was sufficient evidence to support the felon in possession conviction. Carrasco was decided on July 23, 2001. Defendant's direct appeal was decided on September 7, 2001. Because Carrasco was an earlier decision by the same court deciding defendant's direct appeal, it is presumed that the panel deciding defendant's appeal was aware of and applied Carrasco in reaching its decision on the felon in possession issue. Defendant's § 2255 motion is denied as to ground three.
Ground Four: Booker/Fanfan
Defendant's sentence was increased pursuant to the United States Sentencing Guidelines based on the amount of drugs, his role in the offense, his prior felony conviction, and the number of firearms involved. None of these were presented to the jury as elements of the offenses. Thus, defendant argues that his sentence is illegal because it was obtained in violation of his Sixth Amendment right to a trial by jury. This argument is based on the United States Supreme Court's holding in United States v. Booker, 125 S. Ct. 738, 756 (2005), that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." The Court held thatBooker would apply to cases on direct review. Id. at 769. The Court was silent as to whether Booker would apply to cases on collateral review.
Defendant first advances an argument that Booker should apply to his case because his appellate counsel argued to both the Ninth Circuit and the United States Supreme Court that the drug quantity had to be presented to the trial jury as an element of the offense based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant argues that his attorney's reliance onApprendi on direct review puts defendant in a different position than defendants who raise an Apprendi/Blakey/Booker argument for the first time in an initial § 2255 motion. Defendant relies on Davis v. United States, 417 U.S. 333 (1974), to support this argument.
As the magistrate judge found in his initial report and recommendation, defendant's reliance on Davis is misplaced.Davis involved "the availability of collateral relief from a federal criminal conviction based upon an intervening change insubstantive law." Id. at 334 (emphasis added). Apprendi andBooker do not involve changes in substantive law. They involve changes in procedural law. See United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir. 2002) (recognizing that Apprendi is a new rule of criminal procedure) and United States v. Cruz, ___ F.3d ___, 2005 WL 2243113, at *1, (9th Cir. Sept. 16, 2005) (finding thatBooker is a new procedural rule, not a new substantive rule). The fact that defendant relied on Apprendi on direct review does not somehow save him from the Ninth Circuit's recent decision "that Booker does not apply retroactively to convictions that became final prior to its publication." Id. A conviction becomes final once the time for direct review has passed. United States v. Guzman-Colores, 959 F.2d 132, 133 (9th Cir. 1992). Defendant's Petition for Certiorari was denied on April 29, 2002. Ritchie v. United States, 535 U.S. 1042, 1042 (2002). His conviction was thus final prior to the publication ofBooker and he is entitled to no relief based on Booker. Defendant's § 2255 motion is denied as to ground four.
Conclusion
For the foregoing reasons, the court denied defendant's § 2255 motion on September 30, 2005 at Clerk's Docket No. 227.