United States District Court, D. Nevada
C. JONES, United States District Judge
FACTS AND PROCEDURAL HISTORY
convicted Defendant Iqbal Singh-Sidhu of seventeen
drug-related offenses, i.e., for possessing and distributing
controlled substances and controlled substance analogues and
maintaining a drug-related premises. The Court of Appeals
affirmed Defendant's convictions and sentences. Defendant
has filed a habeas corpus motion under 28 U.S.C. § 2255
based on his trial counsel's alleged ineffective
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). The motion is timely, as the
mandate of the Court of Appeals as to Defendant's appeal
of the Judgment issued less than one year before Defendant
filed the present motion. See Id. at §
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
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.
assistance of counsel is “cause” excusing
procedural default only where the failure rises to the level
of a constitutional violation under Strickland v.
Washington, 466 U.S. 668 (1984). United States v.
Skurdal, 341 F.3d 921, 925-27 (9th Cir. 2003).
Ineffective assistance of counsel claims meeting the
Strickland test are not procedurally defaulted, and
such claims can be brought for the first time under §
2255 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.
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 error must also have rendered the trial
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).
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).
argues that trial counsel was ineffective in requesting the
instruction on “deliberate ignorance.” The Court
rejects this ground. The instruction given was from the Court
of Appeals' model instructions and supported by the case
law cited therein, and trial counsel was not ineffective in
proposing it. (Compare Jury Instr. No. 18, ECF No.
63; with 9th Cir. Model Crim. Jury Instr. No. 5.7).
argues that the instruction should not have been given,
because the evidence only supported findings of either actual
knowledge or no knowledge, not deliberate ignorance. The
Court disagrees. The jury's verdict could have been based
on a finding that Defendant was deliberately ignorant of the
precise identity of the substances and whether they were
controlled. That was in fact the main contested issue during
closing arguments: deliberate ignorance versus carelessness.
The evidence at trial included undercover recordings
indicating Defendant's hesitation to speak with the
undercover agent about the “spice” or admit he
had any for sale. He only reluctantly admitting having it
(and then selling it) after the agent's persistence. The
evidence of Defendant's hesitation was sufficient for the
jury to conclude that Defendant strongly suspected, but did
not know for sure, that the substance at issue was
controlled. Anyway, the issue of this Court's own alleged
error on the point is precluded by the Court of Appeals'
affirmance (or procedurally defaulted to the extent the issue
was not raised on appeal). And it was not ineffective for
trial counsel to request the deliberate ignorance
instruction, because it would have required an acquittal if
the jury believed Defendant had merely been careless as to
whether the substance was controlled. In a case where the
Government's evidence of the actus reus was so
overwhelming, it was a reasonable tactical decision for trial
counsel to ensure the jury had this potential route to
acquittal based on Defendant's mens rea. That
was in fact the primary argument defense counsel made to the
jury, specifically arguing several times that Defendant was
not guilty if he had been “ignorant or careless”
as to the illegality of the substances. In reply, the
Government correctly noted that “deliberate”
ignorance was no excuse. The instruction was not in error,
and counsel was not ineffective for requesting it.