United States District Court, D. Nevada
HOWARD D. McKIBBEN, District Judge.
Before the court is Anthony Swanson's ("Swanson") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (#175). The government has responded (#188). The defendant has not replied.
The following evidence was adduced at the trial of this matter.
In June 2007, Phillip Hanvey ("Hanvey"), a confidential informant, approached David Denton ("Denton"), a detective with the Las Vegas Metropolitan Police Department ("LVMPD"). (Trial Tr. 94, 97-98, 134.) Hanvey informed Denton that he had purchased cocaine from Anthony Swanson on numerous occasions, and that he had seen Swanson carrying a firearm. (Trial Tr. 98.) Hanvey believed Swanson was a convicted felon who could not legally possess a firearm. ( Id. ) When Denton received this information, he conducted a criminal history check on Swanson and determined that he was in fact a felon. (Trial Tr. 99.) Hanvey pointed out Swanson's residence to Denton on June 18, 2007, and the police then completed a background investigation on Swanson and the vehicles observed at the residence. (Trial Tr. 100-02, 142.) The police, working with Hanvey, next conducted a "controlled buy" on June 19, 2007, during which Swanson sold Hanvey rock cocaine. (Trial Tr. 104-14, 142.) Following the controlled buy, Denton drafted a search warrant, which was executed on June 20, 2007. (Trial Tr. 114.)
On June 20, 2007, police conducted a warranted search of the residence pointed out to Denton by Hanvey as Swanson's residence. (Trial Tr. 114-118, 142.) Swanson was present, and the police recovered $1, 981 in U.S. currency and 0.29 grams of rock cocaine on his person. (Trial Tr. 117-18.) Police also found a loaded Lorcin.380 semiautomatic chrome handgun under the bed in the master bedroom. (Trial Tr. 206-208.) Police further found in the master bedroom scales bearing narcotic residue, $1309 in U.S. currency, a prescription pill bottled with Swanson's name on it, and, in an adjoining bathroom only accessible through the master bedroom, a baggie containing almost an ounce of rock cocaine. (Trial Tr. 177-79, 182-4, 197-200, 202-204.)
Following the search, Denton read Swanson his Miranda rights and, after Swanson agreed to talk to him, interviewed Swanson about the items found on his person and in the residence. (Trial Tr. 123.) Swanson stated that all of the cocaine in the residence was his and that "he bought the cocaine for everybody to get high." (Trial Tr. 123-24.) Swanson further stated that the gun found in the residence was there for "protection, " and that his prints would probably be on it because he had handled it. (Trial Tr. 124.) Swanson also identified Regina Hall ("Hall"), who was present during the search as well, as his girlfriend. (Trial Tr. 125.) He stated that when he stayed at the residence, he slept with her in the master bedroom in which the firearm and drug paraphernalia were found. ( Id. )
Hall was also Mirandized and interviewed at the scene by Denton. (Trial Tr. 126) She stated that the gun was not hers and that Swanson brought the gun into the house for protection. (Trial Tr. 398-99.) However, at trial Hall testified that the gun was hers and Swanson never handled it. (Trial Tr. 366-68, 398-99.)
Based on the information gathered during the June 20 search, Swanson was arrested. (Trial Tr. 129.)
On March 10, 2010 a federal grand jury returned a five count superceding indictment against Swanson. (Doc. #64.) Swanson proceeded to trial, at which he was convicted of the following counts: Count One - Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1) and 924(a)(2) (Doc. #101); Count Three - Possession with Intent to Distribute a Controlled Substance (Cocaine Base), 21 U.S.C. § 841 (a)(1), (b)(1)(B)(iii) (Doc. #102); Count Four - Possession with Intent to Distribute a Controlled Substance (Cocaine Base), 21 U.S.C. § 841 (a)(1), (b)(1)(B)(iii)(Doc. #103); and Count Five - Possession of a Firearm During and in Relation to a Drug Trafficking Crime, 21 U.S.C. § 841 (a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 924(c)(1)(A) (Doc. #104). The jury deadlocked on count two and the government dismissed the charge. (Doc. ##135, 136.)
On December 14, 2010 Swanson was sentenced to 120 months of custody on count one; 360 months on counts three and four (to run concurrently with count one); and 60 months on count five (to run consecutively with counts one, three, and four), for an aggregate sentence of 420 months in custody. (Doc. #136.) Swanson was also sentenced to eight years of supervised release following his detention. ( Id. )
Swanson appealed his conviction and sentence. (Doc. #140.) On December 13, 2011, the Ninth Circuit Court of Appeals affirmed. United States v. Swanson, 461 Fed.Appx. 580 (9th Cir. 2011); Doc. #149. Swanson petitioned the United States Supreme Court for a writ of certiorari on March 13, 2012 (Doc. #164), but his petition was denied on April 16, 2012. Swanson v. United States, 132 S.Ct. 1953 (2012); Doc. #166.
Swanson then filed his (#175) motion to vacate pursuant to 18 U.S.C. § 2255 on February 5, 2013, and that motion is presently before the court.
A convicted defendant may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, if: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a); see also United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010).
In the case at hand, the four grounds defendant Swanson alleges in his § 2255 motion are all ineffective assistance of counsel claims. ( See generally Def. Mot.) Ineffective assistance of counsel is a cognizable claim under § 2255. Baumann v. United States, 692 F.2d 565, 581 (9th Cir. 1982). In order to prevail on a such a claim, Swanson must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Swanson must show that his counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. "Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986).
Second, Swanson must show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. This requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Harrington v. Richter, 131 S.Ct. 770, 787-88 (2011) (internal citations and punctuation omitted).
I. Ineffective Assistance of Counsel - "Failure to Investigate"
Swanson alleges various ineffective assistance of counsel claims in his first ground for relief. (Def. Mot. 5, 10-11.)
A. Failure to challenge the search warrant based on CI's confirmations of Swanson's photograph
Swanson's first claim is that his attorney Michael Morey ("Morey") was ineffective when
he failed to question the Government's case-in-chief as to the Application For Search Warrant date June 20, 2007, where Det. David Denton only submitted one photo to C.I. Phillip Hanvey effectively violating Movant's due process rights and singling out Movant to C.I.
(Def. Mot. 5.) Swanson alleges that this was "highly prejudicial" and was "beyond a mere suggestive line-up such as found in United States v. Rogers, 387 F.3d 925 (7th Cir. 2004)." (Def. Mot. 20.)
Not only is Rogers not binding law on this court, "[t]he Rogers rationale, " as the government points out, "has no bearing on this case." (Gov't Opp'n 9.) In Rogers, the Seventh Circuit Court of Appeals held that an identification was "unduly suggestive" when police put a narcotics offender in the same jail cell as a person he had previously failed to identify in a line-up, and then later relied on that offender's identification of the same person. Rogers, 387 F.3d at 937.
In contrast, in the case at hand, Hanvey approached Denton and gave him information about Swanson, a man he claimed to know. (Gov't Opp'n Ex. A at 4-5; Trial Tr. 98.) Hanvey pointed out Swanson's residence to Denton. (Gov't Opp'n Ex. A at 5; Trial Tr. 100-02.) After doing a records check, Denton located a record of Swanson that fit Hanvey's description, and then located a picture of Swanson in the LVMPD Crime Web and showed it to Hanvey. (Gov't Opp'n Ex. A at 5; Trial Tr. 99.) Hanvey confirmed that the man in the photograph was in fact the Anthony Swanson about whom he had informed Denton. (Gov't Opp'n Ex A at 5-6.; Trial Tr. 245-46.)
There was no line-up procedure involved in Hanvey's identification of Swanson, and the actions of law enforcement officials were appropriate and not unduly suggestive. Therefore, had Morey objected to Swanson's identification, such an objection would have been without legal merit. The Ninth Circuit has made clear that "[t]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (quoting Baumann, 692 F.2d at 572).
Accordingly, the court denies Swanson's first ground for relief with regard to his claim that his counsel was ineffective in failing to object to the search warrant arising from Hanvey's identification of Swanson.
B. Failure to present testimony of Regina Hall and CI Phillip Hanvey at a Pretrial Hearing
An attorney is ineffective for failing to introduce evidence demonstrating his client's factual innocence or evidence that "raises sufficient doubt as to that question to undermine confidence in the verdict." Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002).
Swanson claims that Morey was ineffective when he failed to present the testimony of Hall and Hanvey at an "evidentiary hearing" "long before trial" "before submitting to the Govt.'s [sic] argument." (Def. Mot. 5, 10.) Swanson claims that, had Morey presented this testimony at a pretrial hearing, Hall would have testified that the weapon was hers, and Hanvey would have testified that he ...