United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Before the Court is Defendant Brett Combs ("Defendant") Motion to Vacate under 28 U.S.C. § 2255 (#170). This Court clarified Defendant's claims and ordered the Government to respond where the motion and record failed to conclusively show that the prisoner was entitled to no relief (#180). The Government did so (#193), and Defendant replied (#198). It should also be noted that this Court's prior Order (#180) disposed of some, but not all, of Defendant's claims. It is the remaining claims that the Court will address here, despite Defendant's repetition of the previously denied claims in his reply.
Also before the Court is Defendant's Motion to Force Monique Kirtley to Respond (#190). The Government responded (#191), but Defendant has failed to reply, and the time has long since expired.
The Court iterates that Defendant is pro se, meaning that his submissions to the Court are "to be liberally construed, and... however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94 (2007) (citations and internal quotation omitted). Accordingly, the Court will liberally construe Defendant's motions.
I. Legal Standard
The Court is required to hold an evidentiary hearing "unless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Burrows , 872 F.2d 915, 917 (9th Cir. 1989) (citing 28 U.S.C. § 2255) (internal alterations omitted). Further, "no evidentiary hearing is necessary when the issue of credibility can be conclusively decided on the basis of documentary testimony and evidence in the record." Shah v. United States , 878 F.2d 1156, 1160 (9th Cir. 1989) (internal quotation marks omitted). In making such credibility determinations, the Court may rely on not only documentary testimony and evidence in the record, but also the court's "recollections" of the proceeding and "common sense." Id. at 1159. The decision of which method to use is "entrust[ed]... to the court's discretion." Id. at 1159.
II. Ineffective Assistance of Counsel
Strickland's two prongs govern this ground. Defendant must establish that 1) his counsel's representation fell below an objective standard of reasonableness, and 2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Padilla v. Kentucky , 559 U.S. 356, 366 (2010) citing Strickland v. Washington , 466 U.S. 668 (1984). Further, "[j]udicial scrutiny of counsel's performance must be highly deferential.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland , 466 U.S. at 689 (internal quotation omitted). The Court notes that the combination of Strickland's high evidentiary bar with the substantial deference owed to trial counsel's strategy places a heavy burden upon Defendant.
Defendant has alleged ineffective assistance of counsel on the following grounds:
A. Failure to Introduce Exculpatory Evidence and Witnesses
Defendant's trial counsel, Monique Kirtley ("Kirtley") provided an affidavit to the Court denying this allegation.
As the trial attorney assigned to represent Mr. Combs, I, along with the assigned investigator and AFPD Ramon Acosta met with Mr. Combs on several occasions to discuss his case, possible defenses, possible defense witnesses [sic]. We investigated every lead that Mr. Combs provided to us. The investigator assigned to the case interviewed individuals that Mr. Combs thought would provide a favorable testimony on his behalf. After sharing with Mr. Combs the outcome of the interviews and investigation, a determination was made that the information gathered from the investigation and interviews would not be beneficial to Mr. Comb's defense.
(#193, Ex. A).
Based on the Court's recollections and common sense, the Court finds Kirtley's affidavit credible. Further, even if Kirtley was in error, substantial deference is owed to determinations such as which witnesses to call and what evidence to present. Beyond this, given the strength of the evidence of Defendant's guilt at trial, there is no reasonable probability that the ...