Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona SHARON K. SEXTON Assistant U.S. Attorney Arizona State Bar No. 012359 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-358-PHX-DGC Plaintiff-Respondent, v. Lawrence Leon Jackson, Defendant-Movant. CV-07-1880-PHX-DGC (JRI) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, by and through its attorneys undersigned, hereby opposes the

15 motion of defendant Lawrence Leon Jackson, to Vacate, Set Aside, or Correct Sentence pursuant 16 to 28 U.S.C. § 2255, for the reasons set forth in the attached Memorandum of Points and 17 Authorities. 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 19th day of December, 2007. DIANE J. HUMETEWA United States Attorney District of Arizona S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented Defendant-movant is currently confined at a Bureau of Prisons facility in Pollock, Louisiana.

4 On or about September 17, 2007, he filed a pro se Motion to Vacate, Set Aside or Correct 5 Sentence, pursuant to 28 U.S.C. § 2255. (CR 132.) Therein he alleges as a basis for relief that 6 1.) he was not subject to federal jurisdiction; and, 2.) he was denied effective assistance of 7 counsel. 1/ 8 Defendant raised the issue of ineffective assistance of counsel on direct appeal. Such appeal

9 was denied. See, United States v. Jackson, 176 Fed. Appx. 806, 2006 WL 991967 (9th Cir. 10 October 9, 2006)(unpublished disposition). 11 II. Procedural History 12 On April 13, 2004, defendant and co-defendant Clifford Coda Smith were charged with

13 Count 1, First Degree Murder, in violation of 18 U.S.C. §§ 1153, 1111 and 2; Count 2, Assault 14 Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2; Count 15 3, Kidnapping, in violation of 18 U.S.C. §§ 1153, 1201 and 2; and Count 4, First Degree 16 Murder/Felony Murder, in violation of 18 U.S.C. §§ 1153, 1111, 1201 and 2. (CR 5.) On June 17 9, 2004, a superseding indictment was filed, charging defendant and co-defendant Smith with 18 Count 1, First Degree Murder, in violation of 18 U.S.C. §§ 1153, 1111 and 2; Counts 2, 4, 6 and 19 8, Use of a Firearm in a Crime of Violence, in violation of 18 U.S.C. §§ 924(c) and 2; Count 3, 20 Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2; 21 Count 5, Kidnapping, in violation of 18 U.S.C. §§ 1153, 1201 and 2; and Count 7, First Degree 22 Murder/Felony Murder, in violation of 18 U.S.C. §§ 1153, 1111, 1201 and 2. (CR 24.) 23 On August 4, 2004, a second superseding indictment was filed charging defendant and

24 Smith with Count 1, Conspiracy to Commit Murder, in violation of 18 U.S.C. §§ 1153, 1111, 25 26 The abbreviation "CR" refers to the district court Clerk's Record, and is followed by relevant document number(s). The abbreviation "RT" refers to the Reporter's Transcript of 27 proceedings, and will be followed by relevant dates and page numbers. The Reporter's 28 Transcript is included as Attachment A.
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1 1117 and 2; Count 2, Conspiracy to Commit Aggravated Assault, in violation of 18 U.S.C. §§ 2 1153, 371, 113(a)(3), 113(a)(6) and 2; Count 3, Conspiracy to Commit Kidnapping, in violation 3 of 18 U.S.C. §§ 1153, 1201(a) and (c) and 2; Count 4, First Degree Murder, in violation of 18 4 U.S.C. §§ 1153, 1111 and 2; Counts 5, 7, 9 and 11, Use of a Firearm in a Crime of Violence, in 5 violation of 18 U.S.C. §§ 924(c) and 2; Count 6, Assault Resulting in Serious Bodily Injury, in 6 violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; Count 8, Kidnapping, in violation of 18 U.S.C. 7 §§ 1153, 1201 and 2; Count 10, First Degree Murder/Felony Murder, in violation of 18 U.S.C. 8 §§ 1153, 1111, 1201 and 2; and Count 12, Assault with a Dangerous Weapon, in violation of 18 9 U.S.C. §§ 1153, 113(a)(3) and 2. (CR 42.) 10 On October 20, 2004, co-defendant Smith entered a plea of guilty as to Count 4 of the

11 Second Superseding Indictment, Second Degree Murder, a lesser included offense. (CR 67; RT 12 10/20/04 1-28.) Pursuant to the plea agreement, Smith agreed to be sentenced to 22 years in 13 prison. 2/ 14 Prior to trial, defendant filed a motion pursuant to Fed. R. Evid. 404(b) to preclude evidence

15 about a previous assault he had committed and the government responded. (CR 61, 63.) On 16 October 21, 2004, during a pretrial hearing and with all parties present, including defendant, the 17 defense withdrew its Rule 404(b) objection to the evidence. (CR 68; RT 10/21/04 2, 14.) 18 Defendant's trial lasted 5 trial days, beginning on October 26, 2004, and ending on

19 November 3, 2004. (CR 69-71, 75-77.) On November 3, 2004, the jury found defendant guilty 20 of all counts in the second superseding indictment. (CR 77.) 21 On March 21, 2005, the district court sentenced defendant to life in prison as to each of

22 Counts 1, 3, 4, 8 and 10; 120 months prison on Counts 2, 6 and 12; and 84 months prison on 23 each of Counts 5, 7, 9 and 11. The district court ordered defendant to serve Counts 5, 7, 9 and 24 11 concurrently with each other, but consecutively to the other counts. Defendant also was 25 26 27 Smith also entered into a plea agreement in CR- 04-1123-PHX-DGC, for an assault that he committed while he was in custody on the homicide charges. (CR 102; RT 3/21/05 2128 22.) Smith ultimately was sentenced to 264 months (22 years) in prison. (CR 115.)
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1 ordered to serve three years supervised release on counts 2, 6 and 12 and five years supervised 2 release on the remaining counts. (CR 102; RT 3/21/05.) 3 Defendant filed a notice of appeal on March 30, 2005. (CR 103.) On appeal, defendant

4 argued that 1.) There was insufficient evidence to sustain a conviction; 2.) Defendant's trial 5 counsel was ineffective; and 3.) Defendant's sentence would have been different if the 6 sentencing guidelines had been advisory. The Ninth Circuit Court of appeals affirmed the 7 conviction holding 1.) The evidence was sufficient to support defendant's conviction; 2.) It 8 would not consider defendant's claim of ineffective assistance of counsel; and 3.) Defendant 9 was not entitled to limited sentencing remand. United States v. Jackson, 176 Fed. Appx. 806 (9th 10 Cir. 2006)(unpublished decision.) The appeal was decided on April 12, 2006. 11 III. Statement of Facts. 12 On or about January 28, 2004, 37-year-old Victor Villareal was murdered on the Gila River

13 Indian Reservation in Sacaton, Arizona. On that date, Victor's girlfriend, Pamela Jackson, last 14 saw Victor at the home of her cousin, defendant Lawrence Jackson. (RT 10/27/04 30-32.) 15 Although defendant and Victor were merely acquaintances who knew each other through 16 Victor's relationship with Pamela Jackson, Victor had given defendant a ride earlier in the day. 17 (RT 10/27/04 33.) At about 2:00 p.m. that day, Pamela Jackson dropped off Victor at the home 18 of Vanessa Cross, where defendant had been living, as Victor planned to spend the afternoon 19 drinking with defendant. (RT 10/27/04 34-36.) 20 At about 3:30 p.m., Pamela Jackson returned to the home of Vanessa Cross and talked with

21 Victor. It was the last time she saw Victor alive. (RT 10/27/04 36.) Victor did not return home 22 that evening, nor did he come home on January 29, 2004. (RT 10/27/04 36.) On January 29, 23 2004, Pamela Jackson went to the home of Vanessa Cross and spoke with defendant, who told 24 her that he didn't know where Victor was and that Victor had left his home the day before at 25 6:00 p.m. (RT 10/27/04 36-37.) Pamela Jackson then filed a missing persons report regarding 26 Victor. (RT 10/27/04 32.) 27 As of January 28, 2004, Vanessa Cross also had been allowing defendant's girlfriend, Fonda

28 Murgia, to live with her. (RT 10/27/04 48-49.) Ms. Cross knew Victor through his relationship
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1 with her aunt, Pamela Jackson. (RT 10/27/04 49.) Ms. Cross also knew Clifford Smith, a 2 frequent­and often daily­visitor of defendant, and Kevin Delowe, another frequent visitor of 3 defendant. (RT 10/27/04 51-52.) 3/ 4 Vanessa Cross was present on January 28, 2004 when Victor was murdered in her home.

5 (RT 10/27/04 52.) Earlier in the day, defendant, Victor and Ms. Cross had all consumed alcohol 6 and rock cocaine. (RT 10/27/04 53-55.) At about 9:30 p.m., Ms. Cross, Fonda Murgia, and 7 Victor had a conversation in which Victor told Fonda Murgia that it was "fucked up" that Fonda 8 was defendant's girlfriend. 4/ (RT 10/27/04 56, 58.) At this time, Victor appeared to be drunk, 9 but Fonda did not. (RT 10/27/04 57-58.) Fonda became upset with Victor, swore at him and 10 told Ms. Cross to go outside with her. (RT 10/27/04 58.) 11 Defendant, Kevin Delowe, Clifford Smith and then 16-year-old Raymond Jackson (all co-

12 conspirators) were outside drinking alcohol. (RT 10/27/04 59; RT 10/28/04 31, 38.) At about 13 9:45 p.m., Fonda went outside and told the co-conspirators about what Victor had said to her. 14 (RT 10/27/04 61.) Fonda was upset and said "this mother fucker's [Victor's] talking shit." (RT 15 10/27/04 60.) 16 Fonda and Ms. Cross then reentered the house. (RT 10/27/04 62.) While the co-

17 conspirators were outside, defendant told Raymond Jackson that Victor was trying to "hit on" 18 Fonda and "trying to mess with" her. (RT 10/28/04 38-39.) 19 About a minute after the women went into the house, all of the co-conspirators followed.

20 (RT 10/27/04 62-63; 10/28/04 39; 82-83, 200.) Victor was seated at the kitchen table when 21 defendant asked him why he was "talking shit to his lady and how come he was talking shit in 22 [his] house" and "disrespecting" Ms. Cross. (RT 10/27/04 63.) Victor did not react, but merely 23 24 25 Kevin Delowe ultimately was charged in a separate indictment, in CR-04-1170-PHXDGC for the murder of Victor Villareal. Delowe pled guilty to Second Degree Murder for his 26 involvement with Victor's death. 27 Defendant's former girlfriend, Carmelita Sabori, had recently died, and Victor was commenting on how strange it was for Fonda to be dating her dead friend's boyfriend. 28 (RT 10/27/04 56-28.)
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1 said, "hey, people say things when they're drunk." (RT 10/27/04 64.) Defendant told Victor 2 that he shouldn't be saying such things and needed to apologize. (RT 10/27/04 64.) 3 Victor got up from the kitchen table, appearing angry; defendant sat Victor back down in

4 his chair. (RT 10/28/04 41.) Defendant then was "in his [Victor's] face." (RT 10/28/04 41.) 5 While Ms. Cross testified that Victor did not provoke any of the fighting, Raymond Jackson 6 testified that Victor was getting angry and pushing defendant. (RT 10/27/04 64, 77; 10/28/04 7 41.) 5/ 8 The co-conspirators then moved from the kitchen to the living area. (RT 10/27/04 64.) Ms.

9 Cross testified that defendant threw the first punch, but Raymond Jackson testified that Victor 10 hit defendant first. (RT 10/27/04 64; 10/28/04 42.) Raymond Jackson testified that defendant 11 was getting the best of Victor, and kept beating Victor and knocking him down, even though 12 Victor was trying to get up. (RT 10/28/04 44.) 13 Defendant's first punch basically knocked Victor to the ground, while the other

14 co-conspirators stood around, laughing. (RT 10/27/04 65.) Defendant then crouched down 15 beside Victor and ordered him to apologize to Fonda; Victor complied. (RT 10/27/04 65.) Ms. 16 Cross testified that Victor appeared fearful over what was happening to him. (RT 10/27/04 67.) 17 Defendant then said "open the battledome," referring to the corner of Ms. Cross' living

18 room. (RT 10/27/04 67-68.) At this time, the other co-conspirators, Raymond Jackson, Clifford 19 Smith and Kevin Delowe, rearranged the living room by moving a couch and chair. 20 (RT 10/27/04 67, 72; 10/28/04 44-45.)
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The chair was used to block the front door. (RT

21 10/27/04 72; 10/28/04 46.) Smith sat in the chair to guard the door and keep Victor from leaving 22 the home. (RT 10/28/04 49-50.) Raymond Jackson blocked the back area of the house, per 23 defendant's instructions. (RT 10/28/04 50.) 24 Raymond Jackson is defendant's nephew, who was testifying pursuant to his plea agreement for Second Degree Murder. (RT 10/28/04 33, 79-80.) Raymond knew and loved 26 defendant all of his life. (RT 10/28/04 34.) Raymond testified that he still loved defendant and that his testimony was difficult because Raymond still cared about defendant. (RT 10/28/04 27 34.). 25 28
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Raymond Jackson testified that Smith moved the couch. (RT 10/28/04 46.)
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Once the "battledome" was prepared, defendant started hitting Victor. (RT 10/27/04 72.)

2 Although Ms. Cross was in the kitchen and her view was blocked, she knew that defendant was 3 the one who started the hitting because she could see each of the other co-conspirators when she 4 heard the first punches being delivered. (RT 10/27/04 73-74.) 5 Raymond Jackson saw that defendant was "beating him [Victor] bad. Kicking him and

6 hitting him, knocking him out." (RT 10/28/04 44-46.) At some time during the assault, 7 Raymond Jackson saw defendant beat Victor with defendant's 9mm pistol. (RT 10/28/04 478 48.) After a while, Victor stopped trying to get up and "just gave up." (RT 10/28/04 51.) At 9 times, Victor was knocked unconscious and laying in a pool of his own blood in the corner of 10 the room. (RT 10/28/04 51.) During the assault, defendant was laughing. (RT 10/28/04 52.) 11 As a result of the assault, Victor's face was severely damaged; the skin of his eyebrow was

12 hanging off his face, dangling over his eye. (RT 10/28/04 57.) Raymond Jackson testified that 13 at one point, Victor "came at me," and Raymond responded by hitting Victor twice in the face. 14 (RT 10/28/04 54.) Raymond testified that he got blood on his hands when he hit Victor because 15 Victor already had a "bloody nose and busted eye." (RT 10/28/04 55-56.) During the assault, 16 Smith said "come on mother fucker," and hit Victor, knocking him out. (RT 10/27/04 74-75; 17 10/28/04 54, 57.) Raymond also saw Delowe hitting Victor with his fist. (RT 10/28/04 55.) 18 None of the co-conspirators were injured by Victor. (RT 10/28/04 55.) 19 Defendant delivered the most blows to Victor during the attack. (RT 10/28/04 57.) At one

20 point, he became angry with Victor for "bleeding on" him. (RT 10/27/04 75.) During the 21 assault, defendant also directed Fonda to hit Victor, which she did. (RT 10/27/04 84.) 22 During the beating, Victor pleaded to be let go, promised that he would tell no one and that

23 he would not call the police. (RT 10/27/04 76.) Victor asked to be released at least three times 24 during the evening, saying, "let me go home." (RT 10/27/04 76; 10/28/04 49.) Defendant 25 responded, "I can't do that." (RT 10/28/04 49.) At no time did the co-conspirators allow Victor 26 to leave. (RT 10/27/04 76-77.) The assault in the living room lasted about an hour, and seemed 27 like "forever" to Raymond . (RT 10/27/04 87; 10/28/04 47, 56.) 28
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After defendant yelled at Victor for bleeding on him, he ordered Victor to clean up his own

2 blood. (RT 10/27/04 77.) By this time, Victor's face was very bloody and swollen and he was 3 on all fours, moaning, breathing heavily and moving slowly in pain, trying to clean up his blood. 4 (RT 10/27/04 77-78; 10/28/04 60.) Victor's face was so badly beaten that he was

5 unrecognizable. (RT 10/28/04 60.) According to Raymond's testimony, the walls and floors 6 were covered with Victor's blood. (RT 10/27/04 77-78.) Raymond also recalled that during the 7 attack, defendant ordered Victor to apologize to Ms. Cross and Fonda. (RT 10/28/04 53-54.) 8 Defendant, in an angry and loud voice, then ordered Ms. Cross, Smith and Raymond to help

9 clean up Victor's blood. (RT 10/27/04 78; 10/28/04 58-59.) Rags and mops were used in an 10 attempt to clean up the blood. (RT 10/27/04 79.) All of the co-conspirators and Fonda had 11 blood on their clothing or shoes. (RT 10/27/04 79-82.) Defendant had blood on his shirt, pants 12 and boots. (RT 10/27/04 82.) 13 After the blood was cleaned, defendant ordered Victor into the shower. (RT 10/27/04 82;

14 10/28/04 61.) The co-conspirators, including defendant, took Victor into the bathroom. (RT 15 10/28/04 61-62.) Victor lay in the tub as the water was ran over his body. (RT 10/28/04 62.) 16 About this time, someone named "Ralph" entered the home, and defendant ordered "Ralph" to 17 watch the bathroom door to make sure that Victor cleaned up, but "Ralph" left shortly thereafter. 18 (RT 10/27/04 84-86.) 19 Victor was passed out in the bathtub but at times would regain consciousness and ask

20 defendant to let him go home. (RT 10/28/04 62.) Defendant told him that he could not let 21 Victor go because Victor would call the police. (RT 10/28/04 62-63.) All of the co-conspirators 22 were standing in the bathroom as Victor was asking to be freed. (RT 10/28/04 63-64.) 23 Raymond and Smith went into the bathroom and Ms. Cross could hear "loud thumps." (RT

24 10/27/04 86.) While Cross heard the "thumping", there were times that she could not see the co25 conspirators or where each was. (RT 10/27/04 87.) Raymond testified that the co-conspirators 26 were all in the bathroom when defendant began beating Victor with defendant's 9mm pistol. 27 (RT 10/28/04 65-66.) Defendant eventually knocked Victor unconscious. (RT 10/28/04 67.) 28
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Raymond testified that he then saw defendant place Victor face down in the tub, as

2 defendant and Delowe began talking. (RT 10/28/04 67.) Defendant and Smith then began 3 stabbing Victor in the back as he lay in the tub, unconscious. (RT 10/28/04 67-68.) Victor was 4 repeatedly stabbed, for "a long time" that seemed to Raymond like 15-20 minutes. (RT 10/28/04 5 69.) The entire assault in the bathroom lasted about an hour. (RT 10/27/04 87.) Eventually, 6 Raymond and Smith came out of the bath and said, "that mother fucker's dead." (RT 10/27/04 7 88.) 8 After it became apparent that Victor was dead, the co-conspirators came out of the bathroom

9 and were discussing what to do next. (RT 10/28/04 71.) Defendant told Raymond and Smith 10 that they had to "clean up their own shit." (RT 10/27/04 89.) Defendant generated most of the 11 clean-up plans including instructing the co-conspirators to get a truck. (RT 10/28/04 71.) 12 Defendant also told the co-conspirators that they needed to "get their stories straight." 13 (RT 10/28/04 71.) Defendant told Raymond that if anyone talked to him, he should say that he 14 "was never there" on that night. (RT 10/28/04 71.) Defendant "made up all the stories" for the 15 co-conspirators. (RT 10/28/04 72.) 16 Smith and Raymond then left the home to steal a vehicle. (RT 10/27/04 90.) Thereafter,

17 either defendant or Delowe began turning out the lights in the home. (RT 10/27/04 91.) 18 Defendant ordered Cross to bring her trash can into the home while he "looked out" for her. (RT 19 10/27/04 91.) Defendant became angry with Cross for crying and said "fucking quit crying. 20 Somebody's going to fucking hear you and call the cops." (RT 10/27/04 92.) 21 Defendant then ordered Cross to get something that he could use to wrap the body. (RT

22 10/27/04 93.) Defendant and Delowe then wrapped Victor's body in sheets and trash bags. (RT 23 10/27/04 94-95.) Cross helped defendant and Delowe put the body into the trash can. (RT 24 10/27/04 94.) 25 Defendant told Delowe and Cross that they would have to get their stories straight. (RT

26 10/27/04 95.) He told Cross that she should tell people that Victor left her home at 6:00 p.m. 27 on that evening, which is the same story that defendant told to Pamela Jackson on January 29, 28 2004. (RT 10/27/04 37, 96.)
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Raymond and Smith returned with a stolen truck at about 4 a.m. on January 29, 2004. (RT

2 10/28/04 75.) When they arrived, Victor's body was already wrapped and in the trash can. 3 (RT 10/28/04 75.) All of the co-conspirators, including the defendant, helped load the trash can 4 onto the bed of the truck. (RT 10/28/04 76.) Smith and Raymond then drove the body to the 5 desert and buried it. (RT 10/28/04 77.) Later that day, defendant asked Raymond where he had 6 taken the body and again reminded Raymond to "get his story straight." (RT 10/28/04 78-79.) 7 The bloody clothing and mop were placed in a box and left outside of Vanessa Cross' home.

8 (RT 10/27/04 105.) Defendant talked about wiping fingerprints from the beer bottles from that 9 evening so that the police would not know who had been at the house. (RT 10/27/04 106.) 10 Defendant told Raymond to dispose of the box of blood stained items, and Raymond complied. 11 (RT 10/28/04 83-85.) 12 During the cross examination at trial of Cross, defense counsel asked about other act

13 evidence, including whether Cross had had to clean up blood in her house on any previous 14 occasion. (RT 10/27/04 133.) Cross testified that once before, she and her boyfriend had helped 15 to clean up blood. (RT 10/27/04 133.) Defendant had been present but Raymond had not. (RT 16 10/27/04 133.) 17 On re-direct, Cross explained that she had heard the term "battledome" before, earlier in

18 January of 2004, when defendant had beaten up a man named Antonio Jackson, again in Cross's 19 living room. (RT 10/28/04 25.)
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During this prior event, defendant had beaten Antonio

20 Jackson with his fists, feet and his 9mm pistol. (RT 10/28/04 28.) The beating lasted 2 to 3 21 hours, in the same corner where Victor had been beaten. (RT 10/28/04 28-29.) Prior to the 22 beating, the couch had been moved from that corner. (RT 10/28/04 29.) After the beating, 23 defendant started to call that corner "his battledome." (RT 10/28/04 29.) 24 Raymond testified that he had entered into a juvenile plea agreement for Second Degree

25 Murder for his involvement in the murder, which plea included a stipulated prison term to the 26 27 Defense counsel objected to this line of questioning as outside of the scope of crossexamination. (RT 10/28/04 26-27.) The court noted that defendant had raised the subject on 28 cross-examination and allowed the government to continue. (RT 10/28/04 26-27.)
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1 age of 21. (RT 10/28/04 79-80.) During one trip to court prior to trial, defendant and Raymond 2 were inadvertently transported in the same prison bus. (RT 10/28/04 80-82.) During this 3 transport, Raymond testified, defendant made threatening comments to Raymond, causing him 4 to believe that defendant was going to hurt or kill him. (RT 10/28/04 80-82.) 5 Dawn Dixon was Raymond's girlfriend at the time of Victor's death. (RT 11/2/04 9-10.)

6 Approximately one week after Victor's death, defendant came to the home of Dixon, with his 7 girlfriend, Fonda, looking for Raymond. (RT 11/2/04 11.) Defendant told Dixon that she 8 needed to "keep [her] mouth shut" or he would hurt her niece and nephew and "make [her] 9 watch." (RT 11/2/04 12-14.) 10 Forensic pathologist Dr. Ruth Kohlmeir testified that she examined the remains of Victor

11 Villareal. (RT 11/2/04 17.) During her examination, she found over 100 stab wounds including 12 to his head, neck, back and torso, caused by at least two different knives. (RT 11/2/04 29, 31-34, 13 36-38.) Dr. Kohlmeir noted Victor died as a result of blunt force trauma to his head, as well as 14 at least two stab wounds that punctured his brain. (RT 11/2/04 42.) 15 The gun that was used to beat Victor was recovered in another criminal prosecution and

16 thereafter linked to defendant. (RT 11/2/04 61.) DNA analysis of the gun showed that blood 17 on the gun was in fact that of Victor Villareal. (RT 11/2/04 209.) 18 When defendant was arrested at the home of Cross, Gila River detectives searched the home.

19 Portions of drywall and a wall hanging were taken from the corner of the home referred to as the 20 "battledome." (RT 10/28/04 171-176.) DNA analysis of the blood on these items showed a 21 match to both Victor Villareal and Antonio Jackson. (RT 11/2/04 209, 213-214.) 22 After the government rested, defendant testified that he was a convicted felon, and had

23 served a prison sentence from February of 2002 until December of 2003. (RT 11/2/04 110-112.) 24 During his supervised release from that conviction, he had a probation/parole officer and had to 25 undergo regular drug testing. (RT 11/2/04 112-113.) He testified that "like every time" he was 26 drug tested, he tested positive for marijuana. (RT 11/2/04 114-115.) Defendant admitted that 27 he would routinely disregard the mandates of his parole by using drugs, selling drugs and 28 possessing guns, including three to four 9 mm pistols and an AK-47. (RT11/2/04 158-163.)
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1 Defendant testified that even though he tried "dangerous drugs" when he got out of prison, "like 2 sowing oats kind of thing," he stopped because he did not want the dangerous drugs to show up 3 on his drug tests. (RT 11/2/04 121-120.) Prior to moving in with Vanessa Cross, he would go 4 to her residence to "smoke weed and drink forties." (RT 11/2/04 120.) 5 Defendant testified that Victor gave him a ride on January 28, 2004, to meet his parole

6 officer. (RT 11/2/04 115-117.) After seeing his parole officer, defendant and Victor purchased 7 a case of beer and began drinking. (RT 11/2/04 119, 126.) Defendant had been living with 8 Cross because "she let [him] use her house to sling [sell drugs] from," for which he earned as 9 much as $3,000 - $4,000 per month. (RT 11/2/04 124, 160.) Defendant also volunteered that 10 he and then-16-year-old Raymond Jackson had a "business arrangement" in which he would 11 supply Raymond drugs to sell on his own for profit. (RT 11/2/04 132.) 12 Defendant admitted that Raymond and Smith had been at his home on January 28, 2004, but

13 didn't remember if Delowe was there. (RT 11/2/04 130.) Defendant denied that he was upset 14 with Victor about a remark that had been made to Fonda Murgia, noting that "girls come a dime 15 a dozen," "I ain't sweating one girl" and "I was messing with three or four girls at that time." 16 (RT 11/2/04 150.) Defendant denied assaulting Victor or threatening Dawn Dixon. (RT 15017 153.) He admitted to being on a prison bus with Raymond and calling him a "snake." (RT 18 11/2/04 157.) 19 Defendant testified that on January 28, 2004, he left his home at about 9:00 p.m. to go see

20 "a dude named Daniel," whom he normally "smoke[d] weed with." (RT 11/2/04 134-135.) 8/ 21 The defendant went to Daniel's to "re-up" or purchase drugs for sale. (RT 11/2/04 136.) 22 Defendant testified that he stayed at Daniel's house until the next morning. (RT 11/2/04 135.) 23 When he returned to his home on January 29, 2004, Cross, Raymond and Smith were there, but 24 he went to bed because he was tired from "smoking weed all night." (RT 11/2/04 137-138.) 25 Defendant was unsure of Daniel's last name but thought it might be "Thomas." He did not know if Daniel had a wife, or the name or number of the street he lived on but could state 27 that Daniel lived in a "barn house."(RT 11/2/04 167-168.) Defendant had given all of the locating information regarding Daniel to his attorney, but his attorney could not locate Daniel 28 because he was "on the run from the police." (RT 11/2/04 169.) 26
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Defendant admitted to owning the 9mm pistol that was found to contain Victor's blood, and

2 that he had posed for a "photo op" with Smith and the 9mm (as well as an AK-47). (RT 11/2/04 3 138-140.) 4 Defendant testified that he first met Antonio Jackson in the Sacaton, Arizona jail, into which

5 he smuggled marijuana and exchanged it for Antonio's food. (RT 11/2/04 141.) Defendant 6 testified that at some time in early January 2004, Antonio had insulted him, calling him a 7 "punk," but that defendant did not assault him on that night because Antonio was with friends. 8 (RT 11/2/04 143-144.) When Antonio came to defendant's home to buy drugs a few days later, 9 defendant began "beating him up." (ER 11/2/04 145-146.) Defendant admitted that he "cracked 10 him in the face two times" with his gun, but didn't "cause permanent damage or lose a tooth or 11 anything like that." (RT 11/2/04 146, 178.) Defendant denied using a knife on Antonio because 12 "you don't bring a knife to a gunfight." (RT 11/2/04 148.) 13 Defendant admitted that before Carmelita Sabori was murdered, she was "his lady" for 8 ½

14 years, and that Carmelita and Fonda Murgia had been friends. (RT 11/2/04 171-172.) 15 Defendant denied that he assaulted Antonio for over an hour, that he ordered Antonio to clean 16 up after the assault, or that he assaulted Antonio for insulting his deceased girlfriend, Carmelita. 17 (RT 11/2/04 180-182.) 18 After calling defendant to testify, the defense rested. (RT 11/20/04 189.) In rebuttal, the

19 government called Antonio Jackson. (RT 11/2/04 190.) When Antonio went to the home of 20 Vanessa Cross, the door was locked behind him, and he was not allowed to leave. (RT 11/2/04 21 193.) Defendant accused Antonio of "saying things" about Carmelita Sabori and "disrespecting 22 her." (RT 11/2/04 194.) Defendant then beat Antonio with his fists, feet and a gun. (RT 11/2/04 23 195-198.) Defendant threatened Antonio not to try to leave the house. (RT 11/2/04 199.)

24 Antonio was beaten for about an hour, causing blood to run over his face and eyes. (RT 11/2/04 25 199-200.) During the assault, defendant ordered Antonio to apologize, which Antonio

26 eventually did. (RT 11/2/04 200.) During the assault, Antonio was ordered to take off his shirt 27 and wipe up his own blood. (RT 11/2/04 202.) After the assault, defendant took Antonio to the 28 bathroom, and ordered him to wash up. (RT 11/2/04 201.)
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1 IV. Analysis 2 3 A. Defendant's motion was timely filed. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L.No. 104-132, 110

4 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 5 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 6 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitation for 7 such motions. Defendant's convictions and sentence were affirmed by the Court of Appeals on 8 April 12, 2006. 9 Defendant did filed a petition for certiorari with the United States Supreme Court on July

10 17, 2006. The Supreme Court denied his petition on October 10, 2006. The defendant thus had 11 one year from October 10, 2006 to file his 2255 motion. The defendant's 2255 motion was filed 12 on September 17, 2007. Thus, the defendant's 2255 motion is timely. 13 14 B. Lack of Jurisdiction: Indian Status The defendant's 2255 motion alleges that the district court lacked federal jurisdiction

15 because defendant was not an Indian. (Defendant's Motion p. 2.) Title 18 U.S.C. Section 1153 16 provides jurisdiction for a series of enumerated crimes. Title 18 U.S.C. Section 1153 requires 17 proof that the defendant is an Indian and that the crime happened within Indian Country. 18 Defendant did not raise the matter pre-trial or during trial, even though defendant testified. 19 Further, when defendant was given an opportunity to speak at sentencing, he said nothing about 20 a lack of jurisdiction and/or that he was not an Indian. (RT 3/21/05 8-11.) Defendant did not 21 specifically raise the issue on appeal; however, defendant raised the issue of sufficiency of the 22 evidence on appeal. The court of appeals denied defendant's appeal finding that the evidence 23 in this case was sufficient. 24 Unlike the term "Indian country," which has been defined in 18 U.S.C. 1151, the term

25 "Indian" has not been statutorily defined but instead has been judicially explained over the years. 26 United States v. Brocheau, 597 F.2d 1260 (9th Cir. 1979). Tribal enrollment is not a requirement 27 of federal jurisdiction. See, United States v. Antelope, 430 U.S. 641, 646 n. 7, 97 S.Ct. 1395, 28 51 L.Ed.2d 701 (1977). Nor should it be. Enrollment is an evidentiary means of establishing
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1 Indian status, but it is not the only means nor is it necessarily determinative. Brocheau, at 1263; 2 see also, United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977); United States v. Ives, 3 504 F.2d 935, 953 (9th Cir. 1974), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 4 L.Ed.2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938); F. Cohen, Handbook of 5 Federal Indian Law 2-5 (1942). 6 As noted in Brocheau, the test, first suggested in United States v. Rogers, 45 U.S. 567, 11

7 L.Ed. 1105 (1845), and generally followed by the courts, is that an Indian is a person who (1) 8 has some Indian blood; and (2) is "recognized" as an Indian by a tribe or by the federal 9 government. See also, United States v. Torres, 733 F.2d 449, 456 (7th Cir. 1984); United States 10 v. Dodge, 538 F.2d 770, 786 (8th Cir.1976); United States v. Lawrence, 51 F.3d 150 (8th Cir. 11 1995) holding that 11/128ths degree of Indian blood is sufficient to prove Indian blood. 12 Whether a defendant is "recognized" as an Indian may be based upon various factors first

13 enunciated in St. Cloud v. United States, 702 F.Supp. 1456 (D.S.D.1988): 1) tribal enrollment; 14 2) government recognition formally and informally through receipt of assistance reserved only 15 to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition as an Indian 16 through residence on a reservation and participation in Indian social life. Id. at 1461. 17 The government did not introduce tribal enrollment evidence in this case, but as noted in

18 Brocheau, tribal enrollment is not required. The government produced appropriate jurisdictional 19 evidence at trial. Specifically, Agent Kobel, an agent who was familiar with federal jurisdiction 20 and prosecutions in Indian country and whose primary tasks involved investigation of violent 21 crimes on the Gila River Indian Reservation testified that he investigated the issue of defendant's 22 Indian status. (RT 11/2/04 56-60.) Agent Kobel testified, without objection, that his

23 investigation showed that defendant was a Native American Indian. (RT 11/2/04 60.) Several 24 witnesses, all who lived on the Gila River Indian Reservation, including Vanessa Cross, 25 Raymond Jackson and Dawn Dixon testified that they knew defendant most of their lives. (RT 26 10/27/04 47-48; RT 10/28/04 33, 165-166; RT 11/2/04 10.) Defendant was a cousin to Vanessa 27 Cross as his father was her uncle; He was an uncle to Raymond Jackson as defendant's mother 28
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1 was Raymond's grandmother; Dawn Dixon's friends were defendant's younger cousins. (RT 2 11/2/04 10.) 3 The government showed that defendant was subject to tribal jurisdiction as he was arrested

4 on an unrelated matter by Detective Lancaster of the Gila River Police Department (RT 10/28/04 5 165-166, 170, 176). Defendant admitted he was subject ot tribal jurisdiction as he met Antonio 6 Jackson when defendant was serving time in tribal jail; (RT 11/2/04 141.) Defendant himself 7 testified that all of his relatives live in Sacaton, Arizona, which is located on the Gila River 8 Indian Reservation and that they have lived their all of their lives. (RT 11/2/04 111.) Defendant 9 admitted that he attended school on the Gila River Indian Reservation. (RT 11/2/04 110-111.) 10 Defendant lived in tribal government housing and was engaged in his business of selling drugs 11 at that residence. (RT 10/27/04 47-48; RT 11/2/04 124, 160.) 12 Agent Kobel's testimony and evidence pertaining to all of defendant's Indian relatives is

13 evidence of defendant's Indian blood. Further, evidence of defendant's residence in tribal 14 housing, his arrest by tribal law enforcement, his jail time in tribal jail, defendant's previous 15 schooling on the reservation, and defendant's enjoyment of the benefits of tribal affiliation and 16 social recognition as an Indian through residence on a reservation and participation in Indian 17 social life are also proof of defendant's Indian status. The defendant produced no contrary 18 evidence. 9/ 19 The testimony of a single witness is sufficient for a jury to convict if the jury believes the

20 witness' testimony beyond a reasonable doubt. United States v. Payseur, 501 F.2d 966, 971-72 21 (9th Cir. 1974). By viewing all of these facts in the light most favorable to the prosecution and 22 asking whether any rational trier of fact could have found this element beyond a reasonable 23 24 25 26 27 28 Additional biographical information was obtained by the probation officer in this case and was set forth in the presentence report. The PSR lists defendant as an American Indian, Non-Hispanic. Further, defendant had an extensive record from the Gila River Tribal Court to include tribal detention. The record details seven tribal court arrests. Clearly this information was not introduced at trial because it was not relevant to the homicide. However, had defendant objected to jurisdiction and his status as an "Indian," this evidence would have been admissible to assist in that proof. Defendant also admitted in the PSR that while he was born in Albuquerque, New Mexico, his birth mother and siblings resided on the Gila River Indian Reservation in Sacaton, Arizona.
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9/

1 doubt and allowing the government all reasonable inferences that might be drawn from the 2 evidence, the evidence was sufficient to prove that defendant was an Indian pursuant to Title 18 3 U.S.C. Section 1153. United States v. Blitz, 151 F.3d 1002, 1006 (9th Cir. 1998); United States 4 v. Harris, 729 F.2d 866, 868 (9th Cir. 1986). 5 C. Ineffective Assistance of Counsel 6 Defendant claims he was denied effective assistance of counsel at trial because trial

7 counsel because trial counsel 1.) Failed to present alibi witnesses; 2.) Failed to present the 8 testimony of Clifford Smith; 3.) Elicited evidence of defendant's prior assault on Antonio 9 Jackson; 4.) Failed to request a limiting instruction regarding Antonio Jackson; and 5.) Did not 10 require the government to prove jurisdiction, ie. that defendant was an Indian. Defendant claims 11 he was denied effective assistance of counsel on appeal because appeal counsel did not argue 12 the jurisdictional issue: that defendant was not an Indian. 13 14 1.) Failure to present alibi witnesses and present alibi defense Defendant argues that his attorney failed to present two alibi witnesses, Tracy Jackson and

15 Daniel Juan, and failed to present an alibi defense. (Defendant's Motion p. 3.) Defendant 16 testified that on January 28, 2004, he left his home at about 9:00 p.m. to go see "a dude named 17 Daniel," whom he normally "smoke[d] weed with." (RT 11/2/04 134-135.) The defendant went 18 to Daniel's to "re-up" or purchase drugs for sale. (RT 11/2/04 136.) Defendant testified that he 19 stayed at Daniel's house until the next morning. (RT 11/2/04 135.) When he returned to his 20 home on January 29, 2004, Cross, Raymond and Smith were there, but he went to bed because 21 he was tired from "smoking weed all night." (RT 11/2/04 137-138.) 22 At trial, Defendant was unsure of Daniel's last name but thought it might be "Thomas." He

23 did not know if Daniel had a wife, or the name or number of the street where Daniel lived; he 24 could only state that Daniel lived in a "barn house."(RT 11/2/04 167-168.) Defendant testified 25 that he discussed with trial counsel the possibility of using "Daniel" as a witness. (RT 11/2/04 26 169.) Defendant had given all of the locating information regarding Daniel to his attorney, but 27 his attorney could not locate Daniel because he was "on the run from the police." (RT 11/2/04 28 169.)
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1

Defendant now asserts that "Daniel's" last name was "Juan" and that "Daniel" lived with

2 "Tracy Jackson." (Defendant's Motion p. 3.) During trial, defendant specifically denied 3 knowing this information. (RT 11/2/04 167-168.) Further, at no time did defendant ever 4 mention "Tracy Jackson" either during his own testimony, in pre-trial motions and/or at 5 sentencing. Thus, other than defendant's assertions nearly three years after his trial, there is no 6 evidence that "Tracy Jackson" had any knowledge about defendant's whereabouts on the night 7 of the murder. 8 Defendant never raised the alibi issue with the court either pre-trial, during trial or at

9 sentencing. No notice of alibi defense was filed. Further, at a pretrial conference, on October 10 21, 2004, only five days before trial, the court addressed the issue of the joint witness list. (RT 11 10/21/04 12.) No witnesses named "Daniel last name unknown" "Daniel Thomas" "Daniel 12 Juan" or "Tracy Jackson" were on this list. Defendant made no objections to the proposed joint 13 witness list. (RT 10/21/04 12; RT 10/26/04 27.) 14 Finally, even if defense counsel had known of the potential witnesses "Daniel Thomas,"

15 "Daniel Juan" or "Tracy Jackson" and if he had an ability to locate such witnesses, the failure 16 to call them to testify does not amount to ineffective assistance of counsel as further argued 17 below. 18 19 2.) Failure to present testimony of Clifford Smith Defendant alleges that his attorney should have presented the testimony of co-defendant

20 Clifford Smith. (Defendant's Motion p. 3-4.) Defendant avows that he discussed the issue of 21 using Clifford Smith as a witness with trial counsel. (Defendant's affidavit p. 1.) Defendant 22 avows that his lawyer attempted to use Mr. Smith as a witness, but that Mr. Smith's lawyer did 23 not make Mr. Smith available as a witness. (Defendant's Affidavit p. 1.) Indeed, Clifford Smith 24 could not have been compelled to testify in view of his own pending persecutions, and his 25 consequent Fifth Amendment Right to remain silent. 26 Defendant never raised this issue with the court either pre-trial, during trial or at sentencing.

27 He did not testify in trial that Clifford Smith could support his story and/or that he had wanted 28 Clifford Smith to testify on his behalf. Further, on October 21, 2004, only five days before trial,
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1 the court addressed the issue of the joint witness list. (10/21/04 12.) Defendant did not raise any 2 issues with regard to any issue with Clifford Smith as a witness. Further "Clifford Smith's" 3 name was read to the jury as a potential witness. (RT 10/26/04 27.) This is evidence that 4 Clifford Smith was a potential witness in the case and that defense counsel knew of Clifford 5 Smith as a potential witness. 6 With his 2255 motion, defendant produced an affidavit, purported to be one authored by

7 Clifford Smith, which now alleges that Smith knew of defendant's desire to have him testify as 8 a witness and that Clifford Smith discussed the matter with his lawyer. (Clifford Smith affidavit 9 p. 1.) Thus, the affidavit proves that Clifford Smith knew that defendant wanted Smith to testify. 10 It further shows that Smith had an ability to testify if in fact Clifford Smith wanted to testify. 11 That Clifford Smith admits to discussing the matter with his lawyer is further evidence that 12 Smith's lawyer knew Smith's position regarding testimony. The fact that neither Smith's 13 lawyer, nor Smith himself came forward to offer testimony is evidence that Smith did not want 14 to be a witness in defendant's case. The fact that Clifford Smith was on the witness list is 15 evidence that defendant's counsel was still engaged in efforts to use Clifford Smith as a witness 16 and that he either could not get Clifford Smith to testify or that he made a tactical decision not 17 to use Clifford Smith as a witness. 18 Interestingly, no where in the affidavit does Clifford Smith allege that he was willing to

19 testify for defendant; rather, he states what he would have stated if he had been called to testify. 20 (Clifford Smith affidavit p. 1.) There is no information that Clifford Smith requested that his 21 attorney communicate with defendant or defense counsel. Thus, while defendant seems to imply 22 that his attorney and Smith's attorney conspired against defendant to keep Clifford Smith off the 23 witness stand, the evidence suggests otherwise. The evidence shows that both attorneys were 24 aware of the request and that as a result of consultation with their clients, no testimony was 25 provided by Clifford Smith. 26 In fact, during Smith's plea proceeding which occurred only six days before defendant's

27 trial, Smith was specifically asked, "Is there anything you have wanted [your lawyer] to do for 28 you that he has not done?" Smith answered, "No." (RT 10/20/04 5.) If Smith had wanted to
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1 be a witness for defendant, he surely would have advised the court of that fact. If Smith had 2 advised his lawyer of his desire to be a witness, Smith's lawyer would have communicated that 3 to defendant and his lawyer. 4 The unwillingness to testify is also a matter that counsel undersigned can attest to. Counsel

5 undersigned specifically asked Clifford Smith's lawyer if Smith had a desire to testify in 6 defendant's case and/or to provide a "free talk" regarding the murder and the participants. 7 Clifford Smith's lawyer advised counsel undersigned that he discussed the matter with Smith 8 and that Smith had a steadfast position that he did not want to testify. (Affidavit of Assistant 9 U.S. Attorney, Sharon K. Sexton, Attachment B.) 10 Smith's unwillingness to become involved with the trial in this matter was evidenced by his

11 plea agreement. Smith was unwilling to name other participants of the offense: 12 13 14 15 16 17 18 Clifford Smith: Clifford Smith: The Court: The Court: Now there's a factual statement in your plea agreement that I'm looking at on page 5. It goes on to state a couple of other things. It states you and others beat the victim with fists and feet. Is that a true statement? Yes. It says the group further stabbed the victim multiple times in the back. Is that a true statement? Yes.

19 (RT 10/20/04 20.) (Emphasis added.) 20 Clifford Smith did not name his other co-conspirators because he refused to do so. (RT

21 10/20/04 1-28.) However, he did acknowledge them. Smith's plea statements that this was a 22 "group" murder is consistent with the trial testimony of Raymond Jackson and Vanessa Cross. 23 Finally, even if Clifford Smith was a willing witness for defendant and if defendant's

24 attorney chose not to call him as a witness, that does not amount to ineffective assistance of 25 counsel as further argued below. 26 27 3.) Defense counsel's introduction of defendant's prior assault of Antonio Jackson Defendant argues that defense counsel was ineffective because defense counsel introduced

28 evidence of a prior assault of Antonio Jackson. (Defendant's Motion p. 4.) Defendant did not
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1 present this matter pre-trial, during trial or at sentencing. Defendant did not argue on appeal that 2 404(b) evidence regarding Antonio Jackson should have been ruled inadmissible. 3 Prior to trial, defendant filed a motion pursuant to Fed. R. Evid. 404(b) to preclude evidence

4 about a previous assault he had committed on Antonio Jackson and the government responded. 5 (CR 61, 63.) On October 21, 2004, during a pretrial hearing and with all parties present, 6 including defendant, the defense withdrew its Rule 404(b) objection to the evidence. (CR 68; 7 RT 10/21/04 2, 14.) 8 Thus, defendant had knowledge well in advance of trial that his attorney did not object to

9 the presentation of evidence regarding Antonio Jackson. Defense counsel first raised the issue 10 of Antonio Jackson during the cross-examination of Vanessa Cross as follows: 11 12 13 14 15 16 Q: Had you ever had to clean up blood in your house other than this time? A: Yes. Q: On how many occasions would you say? A: Once. Q: Once before? Were you drinking and doing drugs then? A: Drinking.

17 (RT 10/27/04 133.) 18 Defense counsel did not ask any other details about the blood or Antonio Jackson. On re-

19 direct, the government asked Vanessa Cross about Antonio Jackson and her recollection of the 20 beating of Antonio Jackson. (RT 10/28/04 28-30.) Defendant objected to this line of 21 questioning as being beyond the scope of cross-examination, but he did not object to the 22 admissibility of the evidence. (RT 10/28/04 26-27.) 23 During defendant's testimony, defendant, not his attorney, first raised the issue of the assault

24 on Antonio Jackson. Defense counsel asked the defendant if he knew Antonio Jackson and 25 general questions about their relationship. (RT 11/2/04 141-146.) Defendant spoke willingly 26 about Antonio Jackson, without any apparent reluctance. Defendant talked about how Antonio 27 Jackson had called him a "punk" in jail. (RT 11/2/04 143.) Defendant was the one who first 28 discussed "beating him up." (RT 11/2/04 146.)
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1 2 3 4

Q: What happened when he come (sic) and bought drugs from you? A: I invited him in, because I don't do business outside the door where you can get in a - where people can see you, police, especially law enforcement. Where you do that and you tell them to come in, boom, let them see what I got. I sell flat boulders, so he was happy. Q: What's that?

5 A: That's a rock. 6 Q: And what's it called, again? 7 A: A boulder. 8 Q: Boater? 9 10 11 12 13 14 (RT 11/2/04 145-146.) 15 The evidence regarding Antonio Jackson was going to be admitted in this trial regardless 16 of who first raised the issue. The government intended to introduce it regardless because it was 17 proper 404(b) evidence as the assault of Antonio Jackson was remarkably similar to the assault 18 of Victor. Thus, defense counsel asking Vanessa Cross about whether she had previously 19 cleaned up blood, does not amount to ineffective assistance of counsel as further argued below. 20 4.) Failure to request a limiting instruction regarding Antonio Jackson 21 Defendant argues that defense counsel did not request a limiting instruction regarding the 22 evidence of Antonio Jackson. (Defendant's Motion p. 5.) Defendant did not raise this issue pre23 trial, during trial, or at sentencing. Counsel was unable to find in the record who requested the 24 limiting instruction, but one was given in the court's final jury instructions: 25 26 27 28
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A: Yeah. That means it's a huge rock, `cause you get your - - more than your money's worth. Q: Okay. A: Okay? He came in, and I reminded him of the day when he was talking out of the side of his neck at that party, and he denied saying anything. And I said, Ah, you got a - you know what? I said, Remember? And I told him he called me a punk. And he knew what's up then. It was too late. I - - I started beating him up, dude.

The defendant is only on trial for the crimes charged in the second superseding indictment, not for any other activities. You have heard evidence of other acts or wrong engaged in by the defendant. You may consider that evidence only as it bears on the defendant's motive, intent, preparation, plan, knowledge, identity, absence of mistake or accident and for not other purpose.

1 (RT 11/3/07 59-60.) 2 Thus, whether defense counsel requested the instruction is without consequence; the court

3 gave a limiting instruction. Thus, this argument is without merit. 4 5 5.) Failure to have the defense test the gun for DNA Defendant argues that the gun in this case was not his and that DNA testing would have

6 proven that the gun was not his. (Defendant's Motion p. 6.) Defendant did not raise this issue 7 pre-trial, during trial, or at sentencing. Nonetheless, DNA testing to prove ownership of the gun 8 was not necessary in this case; defendant admitted to owning it. Defendant admitted that he had 9 posed for a "photo op" with Smith and the 9mm (as well as an AK-47.) (RT 11/2/04 138-140.) 10 Defendant admitted that he used the gun to beat Antonio Jackson. (RT 11/2/04 178.) DNA 11 analysis of the gun showed that blood on the gun was in fact that of Victor Villareal. (RT 12 11/2/04 209.) Thus, this argument is without merit. 13 14 6.) Failure to require government to prove jurisdiction Defendant alleges that counsel was ineffective for failing to require the government to prove

15 that defendant was an Indian pursuant to Title 18 U.S.C. Section 1153. (Defendant's Motion p. 16 7.) Defendant did not raise the matter pre-trial or during trial, even though defendant testified. 17 Further, when defendant was given an opportunity to speak at sentencing, he said nothing about 18 a lack of jurisdiction and/or that he was not an Indian. (RT 3/21/05 8-11.) Defendant did not 19 raise jurisdiction as an issue on appeal. 20 The government produced appropriate jurisdictional evidence at trial as was previously

21 discussed above. Agent Kobel testified, without any objection, that defendant was a Native 22 American Indian and that the crime occurred on the Gila River Indian Reservation. (RT 11/2/04 23 60.) Defendant himself testified that all of his relatives live in Sacaton, Arizona, which is located 24 on the Gila River Indian Reservation and that they have lived their all of their lives. (RT 11/2/04 25 111.) Thus, the government proved jurisdiction at trial and thus, defense counsel did not "fail 26 to hold the prosecution to its burden." 27 28
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1 2

7.) Appeal Counsel's Failure to Argue Jurisdiction As noted above, the government proved jurisdiction in this case. Thus, there were no facts

3 which would support an argument on appeal that the district court lacked jurisdiction. Thus, 4 appeal counsel was not ineffective by failing to raise this issue. 5 V. Legal Analysis: Ineffective Assistance of Counsel 6 Whether a defendant received effective assistance of counsel is a legal question reviewed

7 de novo. Sanchez v. United States, 50 F.3d 1448, 1456 (9th Cir. 1995). 8 A claim that defense counsel's assistance was so defective as to require reversal of a

9 conviction or grant a new trial has two components: 10 11 12 13 First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. 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.

14 Strickland v. Washington, 466 U.S. 668, 687 (1984). 15 Unless a defendant makes both showings, it cannot be found that the conviction resulted

16 from a breakdown in the adversary process that renders the result unreliable. Id. 17 18 1. Standard of defense counsel's performance. The proper standard for attorney performance is that of "reasonably effective assistance."

19 Id. Defendant must show that defense counsel's representation fell below an objective standard 20 of reasonableness. Id. While there are no specific guidelines to determine the appropriateness 21 of defense counsel's conduct, the proper measure of attorney performance is simply 22 "reasonableness under prevailing professional norms." Id. at 2064-2065. The inquiry must be 23 whether counsel's assistance was reasonable considering all the circumstances. Id. The purpose 24 is simply to ensure that the defendant received a fair trial. Id. 25 Judicial scrutiny of counsel's performance must be "highly deferential." Id. "A fair

26 assessment of attorney performance requires that every effort be made to eliminate the distorting 27 effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to 28 evaluate the conduct from counsel's perspective at the time." Id. A court must indulge a strong
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1 presumption that counsel's conduct falls within the wide range of reasonable professional 2 assistance. Id. Defendant must overcome the presumption that, under the circumstances, the 3 challenged action "might be considered sound trial strategy." Id., see also, Allen v. Woodford, 4 395 F.3d 979, 999 (9th Cir. 2005). 5 A difference of opinion as to trial tactics does not constitute denial of effective assistance.

6 United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Tactical decisions are not ineffective 7 assistance simply because in retrospect better tactics are known to have been available. Bashor 8 v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Further, the failure to use an alibi witness does 9 not necessarily constitute ineffective assistance of counsel. See, United States v. McKenna, 65 10 F.3d 1483 (9th Cir. 1995), assuming, arguendo that defense counsel's failure to notice an alibi 11 witness was deficient performance, the failure was not so serious to deprive defendant of a fair 12 trial, a trial whose result is reliable, when there were two eye-witnesses to the crime; D. Eckert 13 v. Tansy 936 F.2d 444(9th Cir. 1991), defense counsel's failure to notice alibi witness did not 14 constitute ineffective assistance of counsel when defendant did not want counsel to give 15 prosecution timely notice of alibi witness and instead wanted to talk to alibi witness first. 16 As a preliminary matter, the government attempted to provide this court with information

17 regarding the specific performance of defense counsel in this case. Specifically, on October 10, 18 2007, the government sent a letter to defendant's trial attorney, John Rood, requesting that he 19 address the matters set forth in defendant's motion. (Attachment C.) On October 12, 2007, the 20 government sent the defendant a letter, requesting that he waive the attorney-client privilege so 21 that such matters could be addressed by trial counsel. (Attachment C.) On October 15, 2007, 22 John Rood sent the government a letter indicating that he would not discuss this matter until 23 defendant waived his attorney-client privilege. (Attachment C.) On October 17th, 2007, 24 defendant responded to the government that "I will allow my prior attorney to discuss on (sic) 25 whether or not I informed my attorney of my defense and alibi witnesses that he did not 26 interview and present to support my alibi at trial. However, I do not waive attorney/client 27 privilege as to the substance of the conversations/communications." (Attachment C.) 28
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1

Defendant's "waiver" only would allow the government to ask defense counsel if defendant

2 told him of alibi witnesses. The government does not dispute that defendant may have told his 3 attorney about what he perceived to be "alibi witnesses." For example, defendant testified in 4 trial that he told his attorney about "Daniel" but that "Daniel" was on the run. Defendant's 5 "waiver" does not allow defense counsel to provide information regarding counsel's decisions 6 as to why certain witnesses were not called. Defendant has the burden of proving defense 7 counsel's deficiency. He has the ability to allow defense counsel to respond to the allegations, 8 yet, he has chosen to restrict defense counsel's ability to do so. Thus, the court must decide 9 defendant's motion on the record. 10 In the case at bar, defendant cannot show that his trial counsel's performance was deficient. 11 Defendant has shown no evidence that trial counsel failed to investigate the facts of this case. 12 The record shows that trial counsel employed the services of an investigator, Art Hanratty, and 13 contemplated using his investigator as a witness. (RT 10/21/04 8.) The record also shows that 14 defense counsel vigorously cross-examined witnesses about their prior inconsistent statements, 15 motive to lie, drug usage and gang affiliations. (RT 10/27/04 111-120; RT 10/28/04 97-99, 10616 109, 119, 131-136.) Defense counsel showed that he was very knowledgeable of the facts of the 17 case and the evidence presented. A. Alibi Defense 18 19 Defense counsel did not fail to investigate or present an alibi defense. Defendant admitted 20 that he discussed with trial counsel the possibility of using "Daniel" as a witness, but that 21 defense counsel could not find him because "Daniel" was "on the run." (RT 11/2/04 169.) 22 Defendant never raised the name "Tracy Jackson" until nearly three years after his conviction. 23 Thus, other than defendant's self-serving assertions, there is no evidence that "Tracy Jackson" 24 knew anything about this case or that defense counsel failed to investigate the viability of Tracy 25 Jackson as a witness. 26 27 B. Clifford Smith Similarly, defendant has not shown how defense counsel was deficient regarding Clifford

28 Smith. Defendant asserts that he and his attorney discussed using Clifford Smith as a witness.
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1 The record shows that Clifford Smith discussed the matter with his lawyer and that Clifford 2 Smith never made himself available as witness. The record shows that Clifford Smith was listed 3 as a potential witness; Smith was not called either as a tactical decision by defense counsel or 4 because he refused to testify. The government requested that Clifford Smith testify in trial and 5 he refused. There is nothing else that defense counsel could have done to have Clifford Smith 6 testify as a witness. 7 8 C. Other Act Evidence: Antonio Jackson Regarding Antonio Jackson, "the other act evidence," the defendant similarly cannot satisfy

9 the first prong of the Strickland analysis. The defendant cannot show that trial counsel was 10 deficient in failing to object to the other act evidence, because, as shown below, it would have 11 been admitted even if defendant objected. A district court's decision to admit evidence of other acts will be overturned only for an 12
th 13 abuse of discretion. United States v. Hadley, 918 F.2d 848, 850 (9 Cir. 1990), citing, United th 14 States v. Brown, 873 F.2d 1265, 1267 (9 Cir. 1989). A district judge is "accorded wide

15 discretion in deciding whether to admit such evidence." Hadley, 918 F.2d at 850, citing United th 16 States v. Diggs, 649 F.2d 731, 737 (9 Cir. 1981). 17 Rule 404(b), Fed. R. Evid., allows for the admission of uncharged other acts or wrongs. 18 Rule 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a 19 person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, 20 knowledge, identity, or absence of mistake or accident, provided that upon request of the accused, the prosecution in a criminal case shall provide reasonable notice in 21 advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 22 Rule 404(b) is an "inclusionary rule" and "evidence of other crimes is inadmissible only 23 when it proves nothing but the defendant's criminal propensities." United States v. Diggs, 649 24 F.2d 731, 737 (9th Cir. 1981). 25 In Hadley, the Ninth Circuit detailed the three part test for admission of other act evidence: 26 1. sufficient proof exists for the jury to find that the defendant committed the prior act; 27 28 2. the prior act was not too remote in time; and
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1

3 . the prior act is introduced to prove a material issue in the case.

2 Hadley, 918 F.2d at 851. Finally, the probative value of the other act must not be substantially outweighed by the 3 4 danger of unfair prejudice, pursuant to Rul