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
filed the present habeas corpus Motion under 28 U.S.C. §
2255 based on trial counsel's alleged ineffective
assistance. The Court rejected the Motion in most respects
but required the Government to answer as to the issue of
trial counsel's failure to introduce evidence of a Drug
Enforcement Agency ("DEA") chemist's
disagreement over the analogue status of UR-144, trial
counsel's failure to cross-examine Dr. Amin as to the
issue, and trial counsel's failure to adduce expert
testimony on the issue. The Government has filed its Answer,
along with an affidavit from trial counsel, and Defendant has
filed his Reply.
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). 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). Also, 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)).
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, 499 U.S. at 494, and a
"reasonable unavailability of the factual or legal basis
for the claim, " id. "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
v. Washington, 466 U.S. 668, 694 (1984)).
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).
Ineffective assistance of counsel 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. They 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 "depriving] 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).
argues that trial counsel failed to present an expert to
rebut the Government's expert as to the analogue status
of UR-144, cross-examine Dr. Amin on the issue, or address an
internal DEA email by Arthur Berrier to Thomas Duncan
indicating that Berrier (of the DEA's Special Testing and
Research Laboratory) disagreed that UR-144 was a chemical
analogue of JWH-018. The Court previously noted that because
it had instructed the jury in this case consistently with the
Fourth Circuit's partial-disjunctive reading of 21 U.S.C.
§ 8O2(32)(A), it potentially mattered that a DEA
scientist had disagreed that UR-144 and JWH-018 were
substantially similar. The Court therefore ordered the
Government to answer in relevant part.
reading the Answer and the Reply, however, it is clear that
there can have been no prejudice to Defendant, regardless of
whether trial counsel's performance fell below
constitutionally acceptable standards. As the Government
notes, the Court required the jury to return special verdicts
on each count involving UR-144 (Counts 2, 4, 5, 10, 15, 17,
and 18). As to each of those counts (except Count 18, for
which the jury found Defendant not guilty), the jury
separately found that the substances at issue contained both
UR-144 and XLR11. (See Verdict, ECF No. 29). Because
Defendant has made no claim of judicial error or trial
counsel ineffectiveness as to his convictions on the relevant
counts with respect to XLR11, he has shown no reasonable
probability that he would have obtained a verdict of not
guilty on any of the relevant counts had trial counsel
performed as Defendant argues he should have, and any
ineffectiveness by trial counsel as to the analogue status of
UR-144 was therefore not prejudicial.
HEREBY ORDERED that the Motion to Extend Time (ECF ...