United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
Pending before the Court is Defendant's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 84). For the reasons given herein, the Court denies the motion.
I. FACTS AND PROCEDURAL HISTORY
On February 8, 2012, a jury convicted Defendant Clifton James Jackson of one count of Possession of a Firearm by a Convicted Felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The Court denied a motion for new trial that was grounded entirely on the FPD's alleged ineffective assistance, which claims are not cognizable under Rule 33, but rather must be brought in federal habeas corpus proceedings under 28 U.S.C. § 2255, or in some cases on direct appeal. United States v. Pirro, 104 F.3d 297, 299-300 (9th Cir. 1997) (citing United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir. 1994)); accord United States v. Mendoza, Nos. 07-50002 and 09-50641, 2012 WL 1893538, at *2 (9th Cir. May 25, 2012) (citing id. at 299). Defendant appealed, and the Court of Appeals affirmed, declining to address the ineffective assistance of trial counsel claims on direct appeal, rejecting Defendant's argument that there was insufficient evidence to convict him, and rejecting Defendant's argument that his 1991 Virginia conviction for distributing cocaine did not support a "serious drug offense" enhancement to his sentence.
Defendant has asked the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Defendant has filed the motion both in the underlying criminal case and separately such that the Clerk has opened a second, civil case based on the motion. Only the filing of the motion in the underlying criminal case was proper. The Court will therefore strike the motion in the separate civil case and order the Clerk to close that case. The Court will address the motion on the merits in the underlying criminal case.
II. LEGAL STANDARDS
Substantive legal arguments not raised on direct appeal are said to be "procedurally defaulted" and cannot be raised later in a collateral attack. See Massaro v. United States, 538 U.S. 500, 504 (2003). There are exceptions to the procedural default rule when a defendant can show (1) cause and prejudice, or (2) actual innocence. United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 613, 622 (1998)). This has been the test since Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
"Cause" means "some objective factor external to the defense" that impeded the defendant's efforts to comply with the procedural requirement. McCleskey v. Zant, 499 U.S. 467, 493 (1991). Among the reasons that can constitute "cause" are government coercion, see United States v. Wright, 43 F.3d 491, 497-99 (10th Cir. 1994), ineffective assistance of counsel, see McCleskey v. Zant, 499 U.S. 467, 494 (1991), and a "reasonable unavailability of the factual or legal basis for the claim." See id.
Ineffective assistance of counsel is "cause" excusing procedural default only where the failure rises to the level of a constitutional violation under Strickland. United States v. Skurdal, 341 F.3d 921, 925-27 (9th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Ineffective assistance of counsel claims meeting the Strickland test are not procedurally defaulted, and such claims can be brought for the first time under a § 2255 motion even if they could also have been brought on direct appeal. Massaro, 538 U.S. at 504. Ineffective assistance of counsel claims under § 2255 are essentially a special variety of "cause and prejudice" claim. The prejudice required is the same, but the cause is based specifically on constitutionally deficient counsel rather than some other miscellaneous "objective factor external to the defense." McCleskey, 499 U.S. at 493.
The Sixth Amendment right to effective assistance of counsel is violated when: (1) counsel's performance was so deficient so as not to constitute the "counsel" guaranteed by the Sixth Amendment; and (2) the deficiency prejudiced the defense by "depriv[ing] the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. There is a "strong presumption" of reasonable professional conduct. Id. at 698. When this presumption is overcome and an attorney's "unprofessional errors" are such that there is a "reasonable probability" the result would have been different had the errors not occurred, the defendant has been deprived of his Sixth Amendment rights. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). "Reasonable probability" is a lower standard than "more likely than not." Nix v. Whiteside, 475 U.S. 157, 175 (1986). The analysis does not focus purely on outcome. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). The trial must also have been fundamentally unfair or unreliable. Williams v. Taylor, 529 U.S. 362, 391-92 (2000). Counsel's tactical decisions with which a defendant disagrees do not rise to the level of ineffective assistance unless the decisions are so poor as to meet the general test for constitutionally defective assistance. See Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 85-86 (2009).
"Prejudice" means that "the constitutional errors raised in the petition actually and substantially disadvantaged [a defendant's] defense so that he was denied fundamental fairness." Murray v. Carrier, 477 U.S. 478, 494 (1986). A showing of prejudice requires demonstration of a "reasonable probability that... the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Vansickel v. White, 166 F.3d 953, 958-59 (9th Cir. 1999) (quoting Strickland, 466 U.S. at 694)).
Also, issues "clearly contemplated by, and subject to, [a] plea agreement waiver" cannot be brought in a § 2255 motion. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (holding that waiver of the right to appeal does not constitute "cause" excusing procedural default on an issue). This is a commonsense rule. If waiver of the right to appeal itself constituted cause excusing a failure to appeal, a defendant who had waived his right to appeal would have the same ability to obtain review as a defendant who had not waived that right.
Defendant raises four grounds in his Motion: (1) trial counsel was ineffective for failing to move to suppress the black bag and its contents; (2) trial counsel was ineffective for failing to interview critical government witnesses and for failing to conduct a thorough investigation prior to trial; (3) appellate counsel was ineffective for failing to raise the issues of ineffective assistance of trial counsel noted in grounds 1 and 2; and (4) trial counsel was ineffective ...