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United States v. Singh-Sidhu

United States District Court, D. Nevada

April 13, 2017



          ROBERT C. JONES, United States District Judge


         A jury 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 assistance.


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 the sentence.

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 § 2255(f)(1).

         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)).

         “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 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.

         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 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).

         “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).

         III. ANALYSIS

         A. Ground I

         Defendant 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).

         Defendant 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.

         B. ...

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