Free Response - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Arizona State Bar No. 007480 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-02-0155-PHX-JAT Plaintiff-Respondent, v. John Derrick Martin, Defendant-Movant. RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 CV-06-2302-PHX-JAT (BPV)

The United States of America, by and through its attorneys undersigned, hereby opposes the motion of defendant, John Derrick Martin, to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 26th day of March, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES

2 1. Procedural History 3 On February 20, 2002, an indictment was returned by a federal grand jury in the District of

4 Arizona charging defendant John Derrick Martin, a.k.a. Rabbit, with Count 1, Conspiracy to 5 Possess with the Intent to Distribute Cocaine in violation of 21 U.S.C. §§ 846, 6 841(a)(1);(b)(1)(A)(ii) and Count 2, Attempted Possession with the Intent to Distribute Cocaine 7 in violation of 21 U.S.C. §§ 846, 841(a)(1);(b)(1)(A)(ii). Ricardo Buelna and Steve Cornell 8 Dobson, were also charged in both counts. (CR 1.) 9
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On November 25, 2002, defendant Martin along with co-defendants Buelna and Dobson

10 proceeded to trial. (CR 119.) On December 10, 2002, the government rested. On that same date 11 each defendant, including defendant Martin, rested without testifying. (RT 12/10/02 at 180.) 12 The case was submitted to the jury on December 12, 2002. On that same day the jury returned 13 verdicts of guilty as to all defendants on all counts. (CR 148-152.) On October 16, 2003, 14 defendant Dobson was sentenced to serve the mandatory statutory minimum sentence of 240 15 months 2/ on Counts 1 and 2, to run concurrently, followed by ten years supervised release. 16 (CR 247.) A timely notice of appeal was filed on October 22, 2003. (CR 251.) 17 On June 25, 2004, defendant filed an opening brief alleging the following issues: 1) that the

18 evidence was insufficient to convict the defendant of conspiracy to possess with intent to 19 distribute cocaine; and 2) that the evidence was insufficient to convict the defendant of 20 attempted possession with intent to distribute cocaine. 21 After the government filed its answering brief, the Court of Appeals heard argument on the

22 matter on November 2, 2004. The Court issued a memorandum decision affirming the 23 24 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 25 proceedings, and will be followed by relevant dates and page numbers. 26 Because the defendant was previously convicted of a prior drug trafficking offense, he was subject to a twenty year mandatory minimum sentence pursuant to 21 U.S.C. § 27 841(b)(1)(A)( CR 55.). 28
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1 convictions on November 23, 2004. See United States v. John Derrick Martin, et al., 117 Fed. 2 Appx. 509, (9th Cir. November 23, 2003) (unpublished disposition) The Court of Appeals issued 3 its mandate on September 27, 2005. (CR 304.) On September 26, 2006, defendant Martin filed 4 this motion pursuant to 28 U.S.C. § 2255. (CR 316.) 5 II. Issues Presented 6 Defendant, John Derrick Martin, is currently confined at a United States Penitentiary in the

7 Middle District of Florida. As set forth in his motion, defendant alleges three grounds as a basis 8 for relief. In Ground One, defendant alleges that he received ineffective assistance of trial 9 counsel because trial counsel did not file a pretrial motion to suppress the identification 10 procedure. In Ground Two, defendant alleges that he received ineffective assistance of trial 11 counsel because trial counsel did not file a motion to sever from his co-defendants. In Ground 12 Three, defendant alleges that he received ineffective assistance of trial counsel because trial 13 counsel failed to investigate the scene where the crimes occurred. 14 III. Analysis 15 16 A. Defendant's motion is timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L.No. 104-132, 110

17 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 18 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 19 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitation for 20 such motions. Defendant's convictions and sentence were affirmed by the Court of Appeals on 21 November 23, 2004. The mandate issued on September 27, 2005. His motion, pursuant to 28 22 U.S.C. § 2255 is timely, as it was filed within one year of the date upon which his conviction 23 became final. 24 25 B. Facts Ted Verdugo agreed to cooperate with the Drug Enforcement Administration (DEA) and

26 the Phoenix Police Department after he was detained and questioned regarding his role in a 27 seizure of approximately 600 pounds of marijuana in Phoenix, Arizona in the summer of 2001. 28
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1 (RT 11/26/02 54-55.) Verdugo agreed to cooperate prior to being charged and he testified at 2 trial. 3/ (RT 11/26/02 57-58.) 3 In October 2001, Verdugo told Special Agent Patrick Campbell of the DEA, Phoenix

4 Division, that he received information that Ricardo Buelna had ten kilograms of cocaine that 5 Buelna intended to ship to his customers in Nashville, Tennessee. (RT 11/26/02 58.) Buelna 6 told Verdugo that the person who was to receive the cocaine in Nashville was named "Rabbit." 7 (RT 11/27/02 [Verdugo] 18-19.) 4/ Defendant Martin has been known as "Rabbit" since at least 8 1993. During a prior law enforcement contact in 1993, Martin stated that his nickname or street 9 name was "Rabbit." (RT 12/5/02 [Donegan] 14-15.) Additionally, defendant Martin admitted 10 to Agent Goodman at the time of his arrest on the current charges that some people called him 11 "Rabbit." (RT 12/5/02 [Goodman] 47-48.) 12 Initially, Buelna was waiting for a vehicle with hidden compartments to transport the

13 cocaine from Phoenix to Nashville. (RT 11/26/02 59.) When it appeared that the vehicle was 14 not available, Agent Campbell revised the investigative plan. Agent Campbell instructed 15 Verdugo to approach Buelna with a proposition. (RT 11/26/02 60.) Verdugo represented to 16 Buelna that he also had ten kilograms of cocaine. Verdugo offered to have his courier transport 17 both Buelna's and Verdugo's cocaine to Buelna's customers in Nashville, Tennessee. (RT 18 11/26/02 61-62; RT 11/27/02 [Verdugo] 24-26.) Undercover DEA Task Force Agent Angelo 19 Calderone posed as the courier and friend of Verdugo's family who worked with Verdugo in the 20 past. (RT 11/26/02 62.) 21 On November 9, 2001, Verdugo set up a meeting between Agent Calderone and Ricardo

22 Buelna at the Coffee Plantation in Phoenix, Arizona. (RT 11/26/02 63.) The purpose of the 23 meeting was to introduce Agent Calderone to Buelna to make sure Buelna was happy with the 24 25 26
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After the trial, Ted Verdugo pled guilty to a felony in CR 03-0382-PHX-ROS.

The trial testimony of several witnesses was transcribed separately during the course of the trial. Accordingly, more than one transcript exists for several trial dates. On those trial 27 dates, the witness's name is provided for clarity. 28
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1 courier. (RT 11/27/02 [Verdugo] 30, RT 12/3/02 [Calderone] 8-9.) Agent Calderone and 2 Buelna agreed that Agent Calderone would receive a $15,000 fee for delivery of the cocaine. 3 (RT 11/27/02 [Verdugo] 31-32.) 4 On November 14, 2001, Agent Campbell obtained a red Ford Excursion rental car and gave

5 it to Verdugo along with 10 fake kilograms of cocaine. (RT 11/26/02 87-89.) Verdugo drove 6 to 3016 W. Sahuaro, Phoenix, Arizona and met with Buelna. Buelna came out of the residence 7 carrying a blue and black duffle bag which was later found to contain ten bricks of cocaine. (RT 8 11/26/02 94, 203-204, RT 12/3/02 [Scheel] 32-34.) Buelna then followed Verdugo to a 9 McDonald's restaurant in Phoenix, Arizona where they met with Agent Calderone. (RT 10 11/27/02 [Verdugo] 64-65.) At that time, Calderone took the red Ford Excursion containing 11 ten fake kilograms and Buelna's cocaine located in the blue and black duffel bag. (RT 12/3/02 12 [Calderone] 22.) The cocaine was subsequently transported by an agent to the DEA office where 13 it was impounded pending shipment to the DEA Southwest Laboratory for analysis. (RT 12/3/02 14 [Scheel] 32-35.) The ten bricks of cocaine provided by Buelna were analyzed by a forensic 15 chemist and found to contain 9,914 grams of cocaine with an 80% purity. (RT 12/3/02

16 [Goldberg] 81-83.) Agent Campbell obtained ten additional kilograms of fake cocaine to 17 substitute for the real cocaine provided by Buelna. (RT 11/26/02 99-100.) 18 Agent Campbell and Agent Calderone flew to Nashville on November 18, 2001, to complete

19 the delivery. (RT 11/26/02 100.) On November 19, 2001, the agents agreed they would 20 complete the delivery at a Shoney's restaurant located in Nashville. (RT 11/26/02 104-105.) 21 Once at the restaurant, Agent Calderone called Verdugo on Verdugo's cellular telephone. 22 Verdugo was with Buelna at the time. Agent Calderone, while wearing a recording device, then 23 spoke to Buelna and told him his location. Agent Calderone asked Buelna for a description of 24 who he was meeting. (RT 12/3/02 [Calderone] 38-39, 42-44, 47-48.) At that time, Buelna 25 placed a call on his cellular telephone to number (615) 596-4179, a cellular telephone recovered 26 from Martin's vehicle at the time of his arrest. (RT 12/10/02 78-85, RT 11/27/02 [Verdugo] 7627 78.) During this call, Buelna is overheard by both Agent Calderone and Verdugo referring to 28
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1 the person he was speaking to as "Rabbit."

(RT 11/27/02 [Verdugo] 78, RT 12/3/02

2 [Calderone] 47.) Buelna then relayed to Agent Calderone that the person meeting him is a black 3 male, wearing black clothing and driving a black car. Agent Calderone then entered the 4 Shoney's and waited to be contacted. (RT 12/3/02 [Calderone] 48.) 5 6 Meeting 1 Approximately 40 minutes later, co-defendant Steve Dobson, a black male, arrived at the

7 Shoney's driving a black car. Dobson entered the restaurant and approached Agent Calderone. 8 Dobson introduced himself to the agent as Steve. At that time, Dobson told the agent that he 9 wanted the agent to leave the restaurant to meet "Rabbit" who was about a block away and who 10 had the money. Agent Calderone told Dobson that he would not leave the restaurant and wanted 11 Dobson to bring the money to him and then the agent would direct Dobson to the cocaine. (RT 12 12/3/02 [Calderone] 51-54.) Dobson then left the restaurant and departed in his car. (RT 12/4/02 13 [Baggett] 11-12.) 14 15 Meeting 2 Approximately five minutes later, Dobson entered the restaurant while talking on a cellular

16 telephone and handed the telephone to Agent Calderone. At that time, Buelna was on the other 17 line and Buelna was upset with the agent for not wanting to leave the restaurant. Agent 18 Calderone told Buelna that he was not going to leave the restaurant because there were now two 19 other people in the deal. Agent Calderone handed the telephone back to Dobson who then left 20 the restaurant. (RT 12/4/02 [Calderone] 5-7.) Telephone records showed that a cellular

21 telephone with the number (615) 430-2240 was used during this call. The call was made with 22 the same telephone found in Dobson's car later that day. (RT 12/10/02 88-90.) 23 Dobson was then seen walking across the street and entering the passenger side of a blue

24 Suburban which was parked behind a Kinko's Copy Center. Also in the Suburban, sitting in the 25 driver's seat, was another black male. (RT 12/4/02 [Calderone] 7-9.) The driver of the 26 Suburban was subsequently identified as defendant Martin by three agents. (RT 12/4/02 27 [Baggett] 22-23, RT 12/5/02 [Goodman] 19-20, 25, 180, RT 12/4/02 [Hardcastle] 15.) Task 28
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1 Force Agent Baggett, who was conducting surveillance and located in the parking lot nearby, 2 saw Dobson hand Martin a cellular telephone and Martin appeared to be talking on the phone 3 while in the Suburban. (RT 12/4/02 [Baggett] 15.) 4 At that time, a surveillance vehicle containing Agents Benny Goodman and John Hardcastle

5 drove to the back of the Kinko's to try to get the license plate number from the Suburban. As 6 they came around the corner, Agent Hardcastle observed the person in the driver's seat of the 7 Suburban and subsequently identified the driver from a known photograph as defendant John 8 Derrick Martin, a.k.a. "Rabbit." Agent Hardcastle also made an in-court identification of the 9 defendant as the individual he observed in the Suburban on November 19, 2001. (RT 12/4/02 10 [Hardcastle] 14-15, 28-29.) At that time, Agent Goodman focused on obtaining the license plate 11 number for the Suburban. (RT 12/5/02 [Goodman] 10.) The plate number Agent Goodman 12 obtained from the Suburban subsequently came back as being registered to the defendant, John 13 D. Martin. (RT 12/5/02 [Goodman] 24-25.) 14 Defendants Martin and Dobson then drove out of the Kinko's parking lot. Agents reported

15 that the Suburban traveled through a McDonald's parking lot and then to a road behind the 16 Shoney's where Dobson was observed exiting the vehicle. After meeting with Martin, Dobson 17 walked towards the restaurant and appeared to be talking on a cellular telephone. (RT 12/10/02 18 92-93.) 19 20 Meeting 3 Approximately ten minutes after Dobson left the restaurant, he reentered the restaurant and

21 handed Agent Calderone a cellular telephone. At that time, Verdugo was on the other line. 22 Verdugo tried to convince Agent Calderone to leave the restaurant. During this conversation, 23 Agent Calderone could hear Buelna yelling in the background. Agent Calderone handed the 24 phone back to Dobson. Dobson then left the restaurant. (RT 12/4/02 [Calderone] 11-13.) 25 Telephone records show that Buelna called (615) 596-4179 during this time. (RT 12/10/02 9526 96.) 27 // 28
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Meeting 4 Dobson walked to the rear of the restaurant and then returned to meet with Agent Calderone.

3 Dobson again handed Agent Calderone the cellular telephone and Buelna was then on the line. 4 Buelna again tried to persuade Agent Calderone to leave the restaurant. (RT 12/4/02

5 [Calderone] 13-14.) Telephone records verify that this call was a continuation of the call from 6 the third meeting. Agent Campbell also noted that Dobson did not begin using this telephone 7 until after he met with Martin in the Suburban after the second meeting. (RT 12/10/02 96-97.) 8 During Meetings 3 and 4, Dobson used a cellular telephone with the number (615) 596-4179. 9 (RT 12/10/02 95-97.) The same telephone which was found in Martin's Suburban at the time 10 of his arrest. (RT 12/5/02 [Goodman] 35, 52-58.) 11 Dobson next tried to convince Agent Calderone to do the deal in the parking lot. Dobson

12 stated he would bring the money to the agent's vehicle and would take the bag (containing the 13 cocaine.) Agent Calderone told Dobson that he needed five minutes to consider this

14 arrangement. (RT 12/4/02 [Calderone] 15-16.) 15 During meetings three and four, Agent Baggett described the Suburban as doing "heat runs"

16 through the parking lots to determine if there was police surveillance in the area. (RT 12/4/02 17 [Baggett] 24-26.) While driving in the K-Mart parking lot, the Suburban passed Agent Baggett. 18 At that time, Agent Baggett and the driver of the Suburban made eye contact. The agent waived 19 at the driver to try to dispel any suspicion that he was with law enforcement. (RT 12/4/02 20 [Baggett] 21-22.) Agent Baggett later identified Martin as the driver of the Suburban after 21 viewing a six-man photo spread and picking out Martin's photograph. Additionally, Agent 22 Baggett made an in-court identification of Martin as the driver of the Suburban. (RT 12/4/02 23 [Baggett] 23, 35-38.) 24 25 Meeting 5 Dobson was under surveillance as he left the restaurant after the fourth meeting and was

26 observed walking behind the restaurant and getting into the Suburban at a nearby gas station. 27 At that time, Dobson handed the cellular telephone to Martin. (RT 12/4/02 [Baggett] 27.) 28
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A surveillance unit observed Dobson exit the Suburban and walk towards his car. Agents

2 then observed Dobson pull up to the area where Agent Calderone's vehicle was parked. (RT 3 12/4/02 [Baggett] 27-28, RT 12/4/02 [Calderone] 18.) Agent Calderone exited the restaurant 4 and approached Dobson's vehicle. At that time, Dobson had in his possession bundles of U.S. 5 currency wrapped in rubber bands. When the agent asked if Dobson had all the money (referring 6 to $15,000 in courier fees), Dobson responded that he didn't know what it was. The agent 7 handed Dobson a blue paper towel in which to wrap the money. Dobson then handed the money 8 to the agent which was over $9,000.00 in currency. Agent Calderone opened up the rear of his 9 truck and Dobson took the bag which contained the twenty kilograms of fake cocaine. Dobson 10 placed the fake cocaine in his car and left the area. (RT 12/4/02 [Calderone] 18-22.) 11 Subsequently, a marked patrol unit stopped Dobson and seized the bag containing the fake

12 cocaine from Dobson's car. Another officer examined a cellular telephone found in Dobson's 13 car which had the number (615) 430-2240, the telephone used by Dobson during the second 14 meeting. The officer also noted a missed call to that telephone during Dobson's stop which 15 came from (615) 596-4179. The officers then released Dobson. (RT 12/4/02 [Johnson] 59, 6416 65, 68-69, RT 12/4/02 [Pickral] 107-110, 114-115.) Telephone records showed that the missed 17 call was received at or near the time of the stop of Dobson. (RT 12/10/02 101-102.) Again, 18 (615) 596-4179 was the number of the telephone seized from Martin's vehicle at the time of his 19 arrest. 20 Surveillance units also observed the blue Suburban in the area where Dobson was stopped.

21 Agents Goodman and Hardcastle stopped at the first exit past the location where Dobson was 22 stopped. At that time, they observed defendant Martin, driving the same Suburban, exit the 23 freeway after necessarily passing the location of Dobson's stop. Martin looped back onto the 24 freeway and would have again passed the location of Dobson's stop. (RT 12/5/02 [Goodman] 25 16-19, 21-22.) As Martin drove by the agent's position, Agent Goodman got a good look at the 26 driver and later made a positive identification from a known photograph of Martin. Agent 27 Goodman made an in-court identification of Martin as well. (RT 12/5/02 [Goodman] 19-20, 25.) 28
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After the fake cocaine was seized in Nashville by officers on November 19, 2001, Agent

2 Scheel decided to have Verdugo contact Buelna in person in Phoenix to generate more 3 conversations regarding the seizure. (RT 12/3/02 [Scheel] 42-43.) During this audio taped 4 meeting, Buelna placed a call and addressed the party on the other end as "Rabbit." During this 5 call, Buelna received details of the drug seizure and repeated to the caller, in front of Verdugo, 6 that it was "your uncle" who got stopped. (RT 11/27/02 [Verdugo] 86-89.) Dobson's attorney 7 established through questioning of Agent Campbell that Dobson was the uncle of defendant 8 Martin. (RT 11/26/02 152.) 9 On March 4, 2002, Martin and Dobson were arrested. At the time of their arrest, they were

10 stopped in the same Suburban used on November 19, 2001. Two telephones were seized from 11 Martin's vehicle. One of the telephones had the number (615) 596-4179. This telephone was 12 unlocked by entering the last four digits of Martin's Social Security Number. During post arrest 13 questioning, Dobson denied owning the seized telephones. Martin stated that the telephones 14 belonged to Mufungo Hanley and Joe Smith. (RT 12/5/02 [Goodman] 35, 52-58.) 15 An analysis of the telephones was conducted and a summary of the voluminous records was

16 admitted into evidence as Exhibit 44 (RT 12/10/02 64.) The records demonstrate that the 17 telephone found in Martin's car at the time of his arrest was utilized when Buelna called 18 "Rabbit" to set up the initial meeting with Agent Calderone and during the third and fourth 19 meetings. (RT 12/10/02 78-85, 95-97.) Additionally, that telephone called Dobson's telephone 20 during the time of his stop by the police. (RT 12/10/02 101-102.) 21 22 C. Defendant's counsel was not ineffective. To prevail on a claim of ineffective assistance of counsel, a defendant must show that

23 counsel's performance was deficient and that counsel's deficient performance prejudiced the 24 defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant fails to meet 25 either part of the test, the claim of ineffective assistance must be denied. Id. at 700. Where 26 movant cannot establish prejudice, the court need not reach the performance prong. Strickland, 27 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir 1995). 28
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Generally, "[r]eview of counsel's performance is highly deferential and there is a strong

2 presumption that counsel's conduct fell within the wide range of reasonable representation." 3 United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1996). This presumption can 4 only be overcome with concrete evidence. United States v. Cronic, 466 U.S. 648, 658 (1984). 5 Proof of the "prejudice" prong "requires showing that counsel's errors were so serious as

6 to deprive the defendant of a fair trial, a trial whose result is reliable." "It is not enough for [a 7 claimant] . . . to show that [counsel's] errors had some conceivable effect on the outcome of the 8 proceeding." Strickland, 466 U.S. at 693. A claimant "must present a `reasonable probability 9 that, but for counsel's unprofessional errors, the results of the proceeding would have been 10 different.'" Karis v. Calderon, 283 F.3d 1117, 1130 (9th Cir. 2002) (quoting Strickland, 466 11 U.S. at 687). This probability may not be based merely upon conjecture or speculation. See 12 Mickens v. Taylor, 122 S.Ct. 1237, 1246 (2002) (Kennedy, J. concurrence) (regarding 13 speculation as having no place in a Strickland analysis); Bell v. Cone, 122 S.Ct. 1843, (2002). 14 Thus, a Strickland claim cannot prevail unless the defendant demonstrates that there is a

15 reasonable probability that, but for counsel's unprofessional errors, the result would have been 16 different. Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001). 17 18 Ground One As to Ground One, defendant claims that his trial counsel was ineffective in that he failed

19 to move to suppress the pretrial identification procedure. He claims that had the motion been 20 made, trial counsel could have examined the agents regarding a prior history with the defendant 21 related to the defendant's 1993 felony conviction for drug trafficking. He opines that based on 22 this alleged prior history, it was not logical that the agents didn't identify him on the date of the 23 offense. However, the defendant's allegation is vague and fails to set forth any specific facts 24 relating to this alleged prior history. 25 In fact, the only evidence of a prior history with the defendant came from the testimony of

26 one government witness, Officer Gene Donegan. Officer Donegan was not involved in the 27 investigation which led to the convictions in the case at hand. Officer Donegan testified to the 28
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1 fact that he spoke to the defendant in 1993 and that during this conversation the defendant 2 admitted that he went by the name "Rabbit." (RT 12/5/02 [Donegan] 14-15.) 3 The defendant has failed to allege any specific or detailed facts which would support a

4 finding that the pretrial identification procedure impermissibly suggestive. Conclusory 5 allegations which are not supported by statement of specific facts do not warrant habeas relief 6 See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 7 A conviction will be set aside only if the pretrial identification procedure, taken as a whole,

8 was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable 9 misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968). An evidentiary hearing 10 on this issue is required only if the supporting allegations are sufficiently definite, specific, 11 detailed, and nonconjectural, to enable the court to conclude a substantial claim is present. 12 Cohen v. United States, 387 F.2d 751, 751 (9th Cir. 1967) In the present case, the defendant 13 was identified by three separate law enforcement officers. Agent John Hardcastle observed the 14 defendant while he was seated in the Suburban when it was parked behind a Kinko's Copy 15 Center. As Agent Hardcastle drove around the corner, the Suburban's driver turned and looked 16 in the agent's direction enabling Agent Hardcastle to observe the defendant's face. At a later 17 date, Agent Hardcastle observed the defendant's photograph on Agent Goodman's desk and 18 spontaneously identified the picture as the driver of the Suburban. Agent Hardcastle also made 19 an in-court identification of the defendant as the individual he observed in the Suburban on 20 November 19, 2001. (RT 12/4/02 [Hardcastle] 14-15, 28-29.) 21 During meetings three and four described above, Agent Baggett reported the Suburban as

22 doing "heat runs" through the parking lots to determine if there was police surveillance in the 23 area. (RT 12/4/02 [Baggett] 24-26.) While driving in the K-Mart parking lot, the Suburban 24 passed Agent Baggett's location. At that time, Agent Baggett and the driver of the Suburban 25 made eye contact. The agent waived at the driver to try to dispel any suspicion that he was with 26 law enforcement. (RT 12/4/02 [Baggett] 21-22.) Agent Baggett later identified Martin as the 27 driver of the Suburban after viewing a six-man photo spread and picking out Martin's 28
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1 photograph. Additionally, Agent Baggett made an in-court identification of Martin as the driver 2 of the Suburban. (RT 12/4/02 [Baggett] 23, 35-38.) 3 Surveillance units also observed the blue Suburban in the area where co-defendant Dobson

4 was stopped by police and the fake cocaine was seized. Agents Goodman and Hardcastle 5 observed defendant Martin as he drove by the agent's position. At that time, Agent Goodman 6 got a good look at the driver and later made a positive identification from a known photograph 7 of Martin. Agent Goodman made an in-court identification of Martin as well. (RT 12/5/02 8 [Goodman] 19-20, 25.) 9 Three separate agents had the opportunity to view the driver of the Suburban during the time

10 of the offense. They all subsequently identified the defendant as being the driver from a known 11 photograph of the defendant. The defendant's vague claim of a prior history, unsupported by 12 any evidence, fails to establish a substantial likelihood of misidentification. In fact, the 13 defendant's current claim would have been insufficient to have required an evidentiary hearing 14 on the issue at the trial level. See Cohen, Id. Accordingly, his claim must fail. 15 16 Ground Two As to Ground Two, defendant claims that his trial counsel was ineffective because trial

17 counsel failed to move to sever the defendant from his co-defendants. This claim is factually 18 incorrect. The defendant filed a motion to sever on June 28, 2002. (CR 43.) On October 28, 19 2002, the motion was litigated and defendant's request for severance was denied. The defendant 20 did not allege on direct appeal that the denial of the motion to sever was error. 21 The defendant's failure to raise this argument on direct appeal means that he cannot raise

22 this argument in his 2255 petition. The defendant's claim, as alleged in Ground Two, is 23 procedurally defaulted. Section 2255 was not designed to give prisoners another appeal. See 24 United States v. Dunham, 767 F.2d 1395, 1396 (9th Cir. 1985) ("[s]ection 2255 is not designed 25 to provide criminal defendants repeated opportunities to overturn their convictions on grounds 26 which could have been raised on direct appeal"); United States v. Moss, 252 F.3d 993, 1001-03 27 (8th Cir. 2001). See also United States v. Frady, 456 U.S. 152, 168 (1982); United States v. 28
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1 Johnson, 988 F.2d 941, 945 (9th Cir. 1993)(citing United States v. Dunham, 767 F.2d 1395, 2 1397 (9th Cir. 1985)). Habeas review is an extraordinary remedy and will not be allowed to do 3 service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998). If a criminal

4 defendant fails to make allegations of trial or constitutional errors on direct appeal, he must 5 demonstrate cause excusing his procedural default, and actual prejudice resulting from the errors 6 of which he complains, before his claim will be considered in a § 2255 proceeding. Frady, 456 7 U.S. at 168; Dunham, 767 F.2d at 1397, See also United States v. Johnson, 988 F.2d 941, 945 8 (9th Cir. 1993) (citing Frady, 456 U.S. at 168). Even if a defendant alleges a fundamental 9 constitutional error, the cause and prejudice test must be met. Murray v. Carrier, 477 U.S. 478, 10 493 (1986). The existence of "cause" ordinarily depends upon whether "some objective factor 11 external to the defense" can be shown which precluded the defendant from raising an issue at 12 the trial court or on direct appeal. Murray, 477 U.S. at 487. Additionally, the defendant must 13 show that the error he alleges "worked to his "actual and substantial disadvantage, infecting his 14 entire trial with error," Frady, 456 U.S. at 170 (emphasis in original). The "cause and prejudice" 15 standard is more difficult for petitioners to meet than the plain error standard, which applies to 16 defaulted claims on direct review. See Frady, 456 U.S. at 164-66. 17 Defendant gives no explanation or objective factor to justify the failure to raise the issue

18 on appeal. Accordingly, this claim is procedurally defaulted. 19 It is the government's position that defendant's claim in Ground Two is procedurally

20 defaulted and waived. However, even if this Court considers it on the merits, defendant's claim 21 must fail. 22 The Supreme Court has determined that when "defendants have been properly joined under

23 Rule 8(b) a district court should grant a severance under Rule 14 of the Federal Rules of 24 Criminal Procedure only if there is a serious risk that a joint trial would prejudice a specific trial 25 right of one of the defendants, or prevent the jury from making a reliable judgment about guilt 26 or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993). The Ninth Circuit has 27 consistently ruled that defendants jointly charged should be jointly tried, except upon a showing 28
14

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1 of "compelling" or "undue" prejudice. United States v. Hernandez, 952 F.2d 1110, 1114 (9th 2 Cir. 1991). The general rule requiring a joint trial is applied with particular force in conspiracy 3 cases such as the present, where proof of the charges against the defendants is based on 4 substantially the same evidence. See United States v. Freeman, 6 F.3d 586, 598 (9th Cir. 1993); 5 United States v. Miller, 725 F.2d 462, 467 (8th Cir. 1984). 6 The co-defendants were properly joined for trial. The defendant's vague assertion that he

7 believes that co-defendant Dobson wished to testify on his behalf is mere conjecture and 8 speculation which cannot sustain an ineffective assistance claim. The defendant fails to provide 9 any details as to the substance of Dobson's testimony or whether Dobson would have in fact 10 testified. 11 James Braden, trial counsel for the defendant, advised undersigned counsel that during the

12 course of his representation, he made numerous inquiries with counsel for co-defendant Dobson 13 to determine whether Dobson would testify on the defendant's behalf.
5/

However, Dobson

14 never agreed to testify and in fact did not testify at trial. (RT 12/10/02 at 180.) Braden advised 15 that had Dobson agreed to testify, he would have re-urged the motion to sever. Accordingly, the 16 defendant has failed to demonstrate that counsel was ineffective or that he suffered any prejudice 17 to support this claim. 18 19 Ground Three As to Ground Three, defendant claims that his trial counsel was ineffective in that he failed

20 to travel to Nashville to examine the crime scene or interview the incriminating witnesses. As 21 to the incriminating witnesses, they were all law enforcement officers. The defendant was 22 provided copies of all law enforcement reports made in connection with this investigation. It is 23 nothing more than pure speculation and conjecture that these witnesses would have submitted 24 to a pretrial interview. These witnesses were under no legal obligation to be interviewed by 25 counsel. "A claim of failure to interview witnesses may sound impressive in the abstract, but 26 An affidavit from James Braden is in the process of being finalized and will be filed 27 under separate cover in the near future. 28
15
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1 it cannot establish ineffective assistance when the person's account is otherwise fairly well 2 known to defense counsel." See Eggleston v. United States, 798 F.2d 374, 376 (citing United 3 States v. Decoster, 629 F.2d 196 (D.C. Cir. 1976)). The defendant had access to all government 4 reports prepared in this matter. This bare assertion cannot support an ineffective assistance claim 5 absent any evidence that these witnesses would have submitted to an interview or how those 6 interviews would have changed the outcome at trial. 7 Defendant also claims that viewing the scene would have allowed for proper impeachment.

8 Specifically, defendant suggests that viewing the scene would have allowed trial counsel to 9 determine if from Shoney's restaurant one can view the occupants and activities of a vehicle 10 located behind the print shop. Defendant also ponders whether a person in a sedan could look 11 up into the suburban to identify the driver. Again, these suggestions are vague and misleading. 12 The undercover agent at the Shoney's could not identify the driver of the Suburban from his 13 location. He only testified that the he saw Dobson enter the vehicle and observed another black 14 male inside when the door was opened. (RT 12/04/02 8-9.) Task Force Agent Baggett also 15 observed and testified about this conduct (RT 12/04/02 14.) As discussed above, the defendant 16 was identified by three other agents who were conducting mobile surveillance of the area around 17 the Shoney's. 18 Likewise, the defendant's suggestion that a person in a sedan may not be able to look up into

19 the Suburban to make an identification must be a reference to Agent Hardcastle's identification. 20 This assertion is misleading because Agent Hardcastle was not driving a sedan but was also in 21 a SUV.
6/

Cursory allegations that are purely speculative cannot support a claim of lack of

22 competence of counsel. United States v. Gramley, 915 F.2d 1128, 1134 (7th Cir.). 23 Defense counsel was provided with extensive pretrial discovery which included a videotape

24 shot by a stationary surveillance vehicle located in the Shoney's parking lot. Additionally, the 25 defendant was provided numerous photographs, including ariel photographs, of the Nashville 26 27 28
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Agent Hardcastle testified he was driving a Jeep Cherokee. (RT 12/04/02 76.)
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1 locations. The defendant had substantial information relating to the scene. An investigation 2 need not be exhaustive because a duty to investigate includes "to make a reasonable decision that 3 makes particular investigations unnecessary." See Strickland, 466 U.S. at 691. 4 A defendant alleging ineffective assistance of counsel for a supposed failure to investigate

5 has the burden of providing the court sufficiently precise information, that is, a comprehensive 6 showing as to what the investigation would have produced. Hardamon v. United States, 319 7 F.3d 943, 951 (7th Cir. 2003). In the case at hand, the defendant does not set forth concrete facts 8 on how viewing the scene would have effected the outcome of the trial. Therefore, the defendant 9 has not established that he was prejudiced by counsel's failure to view the scene. 10 A review of the entire record demonstrates that the defendant had the benefit of an

11 aggressive, thorough defense provided by his various counsel. Relevant pretrial motions were 12 filed and trial counsel engaged in extensive and focused cross examinations of the government 13 witnesses. He had a focused trial strategy and theory which he maintained throughout the course 14 of trial. Counsel's performance both before and during trial, clearly fell within the appropriate 15 range of professional representation. 16 IV. Conclusion 17 Based on the foregoing, defendant is not entitled to relief on any of the claims raised in his

18 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The motion 19 should be denied. 20 21 22 23 24 25 26 27 CERTIFICATE OF SERVICE 28
17

Respectfully submitted this 26th day of March, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

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1
I hereby certify that on March 27, 2007,

2 I electronically transmitted the attached
document to the Clerk's Office using

3 the CM/ECF system for filing and transmittal 4
of a Notice of Electronic Filing to the following CM/ECF registrant: 315 Deaderick St., Suite 109

5 Cynthia M. Fort 6 Nashville, TN 37238-2395 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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