Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Steve Cordell Dobson, Movant, vs. United States of America,

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CR 02-0155-2 PHX-JAT CV 06-1539-PHX-JAT (MEA) ORDER

Pending before the Court is Movant Steve Cordell Dobson's Motion to Vacate, Set

17 Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255, filed on June 12, 2006 (Doc. #306). 18 This action was referred to Magistrate Judge Mark E. Aspey, who issued a Report and 19 Recommendation ("R&R") on February 1, 2007. In the R&R, Judge Aspey recommended 20 that the Movant's motion for relief from his convictions and sentences be denied and 21 dismissed with prejudice (Doc. #342). Movant timely filed Objections to the R&R on 22 February 20, 2007 (Doc. #343). Also pending before the Court is Movant's Motion for 23 Discovery and Request for an Evidentiary Hearing (Doc. #345). 24 25 I. STANDARD OF REVIEW This Court "may accept, reject, or modify, in whole or in part, the findings or

26 recommendations made by the [M]agistrate." 28 U.S.C. § 636(b)(1). It is "clear that the 27 district judge must review the magistrate judge's findings and recommendations de novo if 28 objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121
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(9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1126 (D.Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, 'but not otherwise.'"). Because Movant filed objections, the Court will review the motion and R&R de novo. II. FACTUAL AND PROCEDURAL BACKGROUND On February 20, 2002, a grand jury indicted Movant in Arizona District Court on charges of Conspiracy to Possess with the Intent to Distribute Cocaine, and Attempted Possession with the Intent to Distribute Cocaine (Doc. #147). Movant was tried before a jury, and on December 12, 2002, the jury returned guilty verdicts as to Movant on both counts. On November 19, 2003, judgment was entered and Movant was sentenced to a term of 120 months imprisonment and five years of supervised release (Doc. #262). Movant filed a direct appeal of this conviction on November 26, 2003 (Doc. #265). On November 23, 2004, the Ninth Circuit Court of Appeals affirmed Movant's conviction (Doc. #303). The Supreme Court denied Movant's petition for certiorari of this decision. On June 12, 2006, Movant filed the currently pending pro se Motion to Vacate under 28 U.S.C. § 2255 (Doc. #306). In his motion, Movant claims that he is entitled to relief from his convictions and sentences under section 2255. On February 20, 2007, Movant filed objections to Magistrate Judge Aspey's R&R recommending that the motion be denied (Doc. #343). III. ANALYSIS In his Objections to the R&R, Movant urges the Court to consider his pro se status and construe his pleadings liberally. While pro se inmate claimants' pleadings are held to a less stringent standard than pleadings drafted by lawyers, the movant must still allege facts in support of his claim that would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The lessened pleading standards for pro se litigants allows such movants to proceed with claims, rather than have their potentially meritorious claims dismissed based on procedural technicalities. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th

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Cir. 1988). Regardless of legal representation, however, a movant must state a claim for which relief can be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Movant first objects to Magistrate Judge Aspey's authority to issue an R&R. 28 U.S.C.A. § 636(b) specifically allows Magistrate judges to submit to a district judge "recommendations for the disposition...of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement," such as this motion. Accordingly, the Court overrules this objection. Movant objects to the R&R's use of the term "Habeas" and asks the Court to recognize that he filed a section 2255 claim, rather than a Habeas Corpus petition. Objections at 3. The R&R repeatedly states that Movant seeks relief under section 2255 and applies case law relevant to section 2255. R&R at 1, 4-5, 10. The Court overrules this objection. Movant raises six claims in his motion (some of which have multiple sub-parts). The first claim, ineffective assistance of counsel, is properly raised for the first time in a section 2255 claim. See United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). The Magistrate Judge denied the subsequent five claims because either those claims were raised on appeal and decided by the Court of Appeals already, or because those claims could have been raised on appeal, were not, and are, therefore, procedurally defaulted. Movant objects to these conclusions. Preliminarily, the Court agrees with the recommendation of the R&R that all claims except ineffective assistance of counsel have either been raised with the Court of Appeals and decided on direct appeal, or could have been raised with the Court of Appeals on direct appeal and were not. With respect to the claims that have already been considered and decided by the Court of Appeals, the Court of Appeals decision is the law of the case and this Court will not revisit it on habeas. See U.S. v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000). Therefore, those claims are denied. Additionally, the Court agrees that any claims besides ineffective assistance of counsel that were not raised before the Court of Appeals were not exhausted and are now procedurally defaulted. To overcome the procedural default, Movant must show cause and prejudice for his default (or actual innocence). See R&R at 4-5. -3Case 2:02-cr-00155-JAT Document 351 Filed 06/28/2007 Page 3 of 8

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Movant objects to the R&R's conclusion that he is precluded from raising procedurally defaulted claims under section 2255. Objections at 4. Movant argues that he was denied his "full and fair opportunity" to litigate his claims based on ineffectiveness of counsel. Id. Under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny, "[a]n ineffective assistance claim has two components: A Movant must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a Movant must demonstrate that counsel's representation fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and quotations omitted). A deficient performance is one that is "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. In order to show prejudice, Movant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Court agrees with the R&R's conclusion that Movant's counsel was not ineffective. The record demonstrates that Movant's counsel would not have succeeded on a motion for mistrial or a new trial based on the allegedly improper juror communication; the Court of Appeals rejected Movant's claim that his counsel's failure to have him testify violated his Constitutional rights; and Movant's counsel submitted a sworn affidavit that he did not threaten his client, as Movant first alleged four years after his conviction. R&R at 8-9, Response in Opposition to Motion to Vacate ("Response") at 12. Movant was represented by five successive counsel during his criminal case, and now alleges that ineffective assistance of the series of attorneys he dismissed is responsible for his failure to bring all proper claims during his direct appeal. In his Objections, Movant undertakes to identify how his counsel should have conducted the trial. Mainly, Movant argues that his counsel should have allowed him to testify, and did not adequately address the allegedly improper communication between the prosecutor and a juror. Objections at 8. Movant argues that his counsel should have brought the juror and a witness to the communication to the stand to testify about the nature of the -4Case 2:02-cr-00155-JAT Document 351 Filed 06/28/2007 Page 4 of 8

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interaction. Objections at 12. However, the record shows that the communication between the prosecutor and the juror did not involve the facts of the case, and the trial court investigated the communication. R&R at 7. A juror approached Assistant United States Attorney Andrew Pacheco and asked him how many more witnesses would testify. Response at 6-7. Pacheco responded to the juror, "three or four, but we'll let the judge talk to you about that." Id. at 7. Pacheco immediately notified the court of his contact with the juror, and the court inquired into the interaction. Id. The court determined that the communication did not involve the underlying facts of the case, and addressed all defense counsel regarding the contact. No defense counsel objected, and both trial counsel and appellate counsel for Movant noted in affidavits that they believed the communication did not involve the facts of the case and did not prejudice the jury. Id. Movant raised his ineffective assistance of counsel claim in his direct appeal and based on its review of the record, the Ninth Circuit rejected this claim. Response at 11. Even though a defendant is typically not permitted to relitigate ineffectiveness of counsel in a section 2255 claim if the Ninth Circuit has reviewed and rejected the claim on direct appeal, see Battaglia v. United States, 428 F.2d 957, 960 (9th Cir. 1970), this Court has nonetheless considered the merits of the ineffective assistance of counsel claim. The Court finds that counsel was not ineffective for using his own professional judgment to not raise a meritless argument and move for a mistrial or new trial, as Movant wanted. The Court also finds that Movant cannot show prejudice from any of these decisions. Therefore, the objections of ineffective counsel based on the juror communication and Movant not testifying are overruled. Movant also claims that the ineffectiveness of his counsel caused him to procedurally default his claim under Brady v. Maryland 373 U.S. 83 (1963). Movant's direct appeal did not address the prosecutor's alleged Brady violation. Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment; irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. To establish a Brady violation, Movant must prove three -5Case 2:02-cr-00155-JAT Document 351 Filed 06/28/2007 Page 5 of 8

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elements: (1) the evidence is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the prosecutor, either willfully or inadvertently, suppressed the evidence; and (3) the accused suffered prejudice. Stickler v. Greene, 527 U.S. 263, 281 (1999). In his Objections, Movant makes unsubstantiated allegations that the prosecutor submitted known false evidence and omitted a portion of a videotape that would have impeached the credibility of a witness for the prosecution. Objections at 9. The prosecution states, however, that the entire videotape made during the undercover operation in Nashville was marked and admitted into evidence. Response at 6. While the videotape was not played in its entirety during the trial, the prosecution claims that it showed the jury all portions of the videotape depicting Movant's actions. Id. Movant argues that he should not be precluded from raising the Brady claim he failed to raise on direct appeal based on allegations of prosecutorial misconduct and the ineffectiveness of his counsel. However, Movant lacks factual support for his allegations, and the Court determines that Movant's counsel was not ineffective for failing to raise a Brady claim. Counsel is not ineffective for failing to raise a meritless argument, see Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999), and the record supports the prosecutor's assertion that he admitted the entire videotape into evidence. Because there was no evidentiary support for the alleged Brady violation, the Court finds Movant's counsel was not ineffective for failing to raise this unsubstantiated claim against the prosecutor. Movant fails to show either sufficient cause for, or prejudice arising from, his procedural default of this claim. Because Movant did not make this claim in his direct appeal, and does not provide cause for or prejudice arising from his default of the claim, the Brady claim is barred. Morever, even if the Brady claim was not barred by procedural default, as the Court has indicated, the claim would fail on the merits because Movant has presented no evidence that the entire tape was not available to both the defense and the jury. Additionally, Movant requests an evidentiary hearing regarding the communication between the prosecutor and a juror. Document #345. No evidentiary hearing is necessary -6Case 2:02-cr-00155-JAT Document 351 Filed 06/28/2007 Page 6 of 8

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if this Court "is able to determine without a hearing that the allegations are without credibility or that the allegations if true would not warrant a new trial . . ." United States v. Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991). A court should consider "the content of the allegations, the seriousness of the alleged misconduct, and the credibility of the source" in determining whether to hold an evidentiary hearing regarding alleged juror misconduct. United States v. Decoud, 456 F.3d 996, 1018 (9th Cir. 2006). In this case, Movant seeks an evidentiary hearing on Movant's allegation that the prosecutor spoke to a juror regarding Movant's co-defendant's potential murder charge. Movant's claims regarding this conversation are not substantiated by the record. Specifically, the Court had a hearing on this issue during trial and determined that the contact was not related to the underlying facts of the case and would not be prejudicial towards the defendant. The Court found that the prosecutor responding to a juror's specific question about the number of witnesses to come did not affect the verdict, and there was no evidence to suggest that the communication was anything other than the innocuous interaction stated in the record. Thus, the trial court essentially already held a hearing regarding the substance of this conversation. Nothing in Movant's unsubstantiated allegations suggests that a second evidentiary hearing would produce a different result. Morever, notwithstanding that Movant's claims of improper juror communication and prosecutorial misconduct are entirely unsupported by the record, even if an evidentiary hearing proved Movant's claims to be true, those claims would be procedurally defaulted because they were not raised on direct appeal. Accordingly, the Court denies Movant's request for an evidentiary hearing. Finally, the Court does not find discovery of the videotape evidence and a transcript of the discussion between the Judge and counsel in chambers, as requested by Movant, necessary. There is no evidence in the record to contradict the prosecutor's assertion that the entire videotape was admitted into evidence at trial and available to both the jury and defense counsel. Thus, this Court now providing the entire videotape to Movant is unnecessary, even if it would show what Movant claims it shows, because the entire videotape was already

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made available to all parties and the jury at trial. Also, the court reporter was not present during the in chambers discussion and no transcript can be made. Therefore, no discovery on this issue is available because the relief Movant seeks is not possible. Accordingly, the Court denies Movant's discovery requests. IV. CONCLUSION Based on the foregoing, IT IS ORDERED that the Report and Recommendation (Doc. #342) is accepted and adopted, Movant's objections (Doc. #343) are overruled and the Motion to Vacate (Doc. #306) is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that Movant's Motion for Discovery and Request for an Evidentiary Hearing (Doc. #345) is denied. DATED this 26th day of June, 2007.

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