United States District Court, D. Nevada
Presently before the court is pro se petitioner Brad Fussell’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. (Doc. # 195). The government filed a response (doc. # 203), and petitioner filed an untimely reply (doc. # 209).
On August 3, 2010, the grand jury indicted Fussell for one count of conspiracy to distribute cocaine. (Doc. # 16). On September 28, 2011, after a three-day trial, the jury found Fussell guilty of the charge. (Doc. # 141). The jury also made a special finding that the conspiracy involved five kilograms or more of a mixture and substance containing a detectable amount of cocaine. (Id.).
The court sentenced Fussell on January 11, 2012, to 120 months in custody with five years of supervised release to follow. (Doc. # 159). Fussell filed a notice of appeal on January 17, 2012. (Doc. # 163). On appeal Fussell argued for the first time, among other things, that his confession was involuntary because he was under the influence of drugs. (See id. at 3-4). On December 11, 2013, the Ninth Circuit affirmed this court’s ruling. See United States v. Fussell, 549 F. App’x 659, 663 (9th Cir. 2013).
On December 15, 2014, Fussell filed a timely 28 U.S.C. § 2255 motion and memorandum in support of that motion. (Docs. ## 195, 196). Fussell alleges ineffective assistance of counsel by his trial counsel, Paul Riddle, Esq. (Doc. # 195). The court ordered Mr. Riddle to provide an affidavit addressing Fussell’s numerous ineffective assistance of counsel allegations. (Doc. # 202). Mr. Riddle complied and his affidavit is included with the government’s response (doc. # 203).
II. Legal standard
Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).
Limitations on section 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
To prevail on a claim of ineffective assistance of counsel, Fussell must show deficient performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
“First, the defendant must show that counsel’s performance was deficient.” Id. at 687. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . .” Id. at 689. “[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.” Id. at 689. To establish deficient performance, Fussell “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
“Second, the defendant must show that the deficient performance prejudiced the defense. This 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. at 687. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Fussell asserts that he is innocent based on “DLM” evidence – evidence that would exonerate him, which his “Defense Lawyer Missed.” (Doc. # 195 at 17). Specifically, Fussell argues that his counsel was ineffective because he: (1) did not file a motion to suppress Fussell’s statements and confession, which Fussell believes were illegally obtained by the FBI in violation of his Miranda rights; (2) failed to promptly schedule a hearing before a magistrate judge is violation of Federal Rule of Criminal Procedure 5 and Mallory v. United States, 265 U.S. 449 (1957); (3) failed to interview or have his investigator interview key exculpatory witnesses; (4) failed to review all discovery and prepare for trial; and (5) advised Fussell to not testify in his own defense at trial. (Doc. # 209 at 1).
A. Failure to file a motion to suppress admissions and failure to promptly schedule a hearing before a ...