Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON 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. Steve Cordell Dobson, Defendant-Movant. RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 CV-06-1539-PHX-JAT (MEA)

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

15 motion of defendant Steve Cordell Dobson, 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 Respectfully submitted this 5th day of December, 2006. 19 20 21 22 23 24 25 26 27 28
I hereby certify that on December 5, 2006, I served the attached document by U.S. Postal mail on the following, who is not a registered participant of the CM/ECF system: Steve Cordell Dobson #17338-075 FCI- Memphis P.O. Box 34550 Memphis, Tennessee 38184

PAUL K. CHARLTON United States Attorney District of Arizona s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

s/David A. Pimsner

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

10 proceeded to trial. (CR 119.) On December 10, 2002, the government rested. On that same date 11 each defendant, including defendant Dobson, rested without testifying. (RT 12/10/02 at 180; 12 See Attachment A at 35.) The case was submitted to the jury on December 12, 2002. On that 13 same day the jury returned verdicts of guilty as to all defendants on all counts. (CR 148-152.) 14 On November 19, 2003, defendant Dobson was sentenced to serve the mandatory statutory

15 minimum sentence of 120 months on Counts 1 and 2, to run concurrently, followed by five years 16 supervised release. (CR 262.) A timely notice of appeal was filed on October 26, 2003. (CR 17 265.) 18 On June 25, 2004, defendant filed an opening brief alleging the following issues: 1) that the

19 evidence was insufficient to convict the defendant of conspiracy to possess with intent to 20 distribute cocaine and attempted possession with intent to distribute cocaine; 2) that Title 21, 21 United States Code Section 846 is ambiguous; 3) that the trial counsel was ineffective in his 22 representation of the defendant because he prevented the defendant from testifying and failed 23 to file a motion to sever; 3) that prosecutorial misconduct occurred during the examination of 24 government witnesses; and 4) that the Court erred in prohibiting the defense from informing 25 The abbreviation "CR" refers to the district court Clerk's Record, and is followed by 26 relevant document number(s). The abbreviation "RT" refers to the Reporter's Transcript of proceedings, and will be followed by relevant dates and page numbers. All documents necessary 27 to the resolution of this Motion are provided in the Attachment to this Response. 28
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1 the jury that the defendant was subject to a ten year mandatory minimum sentence upon 2 conviction. (See Attachment A at 1-4.) 3 After the government filed its answering brief, the Court of Appeals heard argument on the

4 matter on November 2, 2004. The Court issued a memorandum decision affirming the 5 convictions on November 23, 2004. See United States v. John Derrick Martin, et al., 117 Fed. 6 Appx. 509, (9th Cir. November 23, 2003) (unpublished disposition) (See Attachment A at 5-7.) 7 The Court of Appeals issued its mandate on September 27, 2005. Defendant filed a petition for 8 certiorari with the United States Supreme Court which was subsequently denied on January 23, 9 2006. On June 12, 2006, defendant Dobson filed this pro se motion pursuant to 28 U.S.C. § 10 2255. (CR 306 & 307.) 11 II. Issues Presented 12 Defendant, Steve Cordell Dobson, is currently confined at a Bureau of Prisons facility in

13 Memphis, Tennessee. As set forth in his motion, defendant alleges six grounds as a basis for 14 relief. In Ground One, defendant alleges that he received ineffective assistance of trial and 15 appellate counsel because trial counsel refused to permit defendant to testify at trial, counsel 16 refused to object on the issue of improper jury communication and refused to file a motion for 17 a new trial. In Ground Two, he alleges there was insufficient evidence to prove that he engaged 18 in conduct constituting a substantial step toward possession or to prove intent to distribute. In 19 Ground Three, defendant claims there was insufficient evidence of the existence of a conspiracy. 20 In Ground Four, defendant claims that the prosecution failed to disclose evidence of a video tape 21 that would have established defendant's lack of knowledge. In Ground Five, defendant alleges 22 that the prosecutor had an improper communication with a juror and the trial court failed to 23 determine the nature of a communication. In Ground Six, defendant claims that the two counts 24 for which he was convicted are a single crime, and thus his convictions violated the Double 25 Jeopardy Clause. 26 Defendant raised Grounds Two and Three (sufficiency of the evidence) on direct appeal.

27 Both grounds were rejected by the Ninth Circuit Court of Appeals. (See Attachment A at 6 & 28
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1 7.) Defendant did not raise Grounds Four, Five or Six on direct appeal. (See Attachment A at 2 1-4.) As to the allegations in Ground One (ineffective assistance), the defendant raised the issue 3 on direct appeal that his counsel prevented him from testifying (See Attachment A at 3.) The 4 Ninth Circuit rejected this argument. (See Attachment at 7.) Accordingly, the only issues left 5 unresolved are the ineffective assistance claims relating to the failure to object to the juror 6 communication and the failure to file a motion for new trial. 7 III. Analysis 8 9 A. Defendant's motion is timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L.No. 104-132, 110
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10 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 11 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 12 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitation for 13 such motions. Defendant's convictions and sentence were affirmed by the Court of Appeals on 14 November 23, 2004. The mandate issued on September 27, 2005. Defendant filed a petition for 15 certiorari with the United States Supreme Court which was subsequently denied on January 23, 16 2006. His motion, pursuant to 28 U.S.C. § 2255 is timely, as it was filed within one year of the 17 date upon which his conviction became final. A judgment of conviction is final, for purpose of 18 triggering the one-year limitations period, when the judgment of conviction is rendered, the 19 availability of the appeal exhausted, and the time for a petition for certiorari to the Supreme 20 Court elapsed or a petition for certiorari finally denied. 28 U.S.C.A. § 2255. United States v. 21 LaFromboise, 427 F.3d 680 (9th Cir. 2006). 22 23 24 25 26 27 28 Ineffectiveness claims are supposed to be raised in a habeas petition, rather than on direct appeal, and thus, an ineffectiveness claim is not ordinarily procedurally defaulted if raised for the first time in the defendant's habeas petition. See, e.g., United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003) (as a general rule, the Ninth Circuit does not review challenges to the effectiveness of defense counsel on direct appeal). If, however, the Ninth Circuit does exercise its discretion to review the claim on direct appeal and rejects it, the defendant would not ordinarily be able to relitigate the ineffectiveness claim in a habeas petition. See Battaglia v. United States, 428 F.2d 957, 960 (9th Cir. 1970) (a § 2255 motion may not relitigate issues raised on direct appeal).
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B. Grounds Four, Five and Six are procedurally precluded. The defendant's failure to raise these arguments on direct appeal means that he cannot raise

3 his argument in his 2255 petition. The defendant's claims, as alleged in Grounds Four 4 (disclosure of video tape), Five (juror communication) and Six (double jeopardy), are 5 procedurally defaulted. These issues were not raised before the district court or on direct appeal 6 to the Ninth Circuit. Section 2255 was not designed to give prisoners another appeal. See 7 United States v. Dunham, 767 F.2d 1395, 1396 (9th Cir. 1985) ("[s]ection 2255 is not designed 8 to provide criminal defendants repeated opportunities to overturn their convictions on grounds 9 which could have been raised on direct appeal"); United States v. Moss, 252 F.3d 993, 1001-03 10 (8th Cir. 2001). See also United States v. Frady, 456 U.S. 152, 168 (1982); United States v. 11 Johnson, 988 F.2d 941, 945 (9th Cir. 1993)(citing United States v. Dunham, 767 F.2d 1395, 12 1397 (9th Cir. 1985)). Habeas review is an extraordinary remedy and will not be allowed to do 13 service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998). If a criminal

14 defendant fails to make allegations of trial or constitutional errors on direct appeal, he must 15 demonstrate cause excusing his procedural default, and actual prejudice resulting from the errors 16 of which he complains, before his claim will be considered in a § 2255 proceeding. Frady, 456 17 U.S. at 168; Dunham, 767 F.2d at 1397, See also United States v. Johnson, 988 F.2d 941, 945 18 (9th Cir. 1993) (citing Frady, 456 U.S. at 168). Even if a defendant alleges a fundamental 19 constitutional error, the cause and prejudice test must be met. Murray v. Carrier, 477 U.S. 478, 20 493 (1986). The existence of "cause" ordinarily depends upon whether "some objective factor 21 external to the defense" can be shown which precluded the defendant from raising an issue at 22 the trial court or on direct appeal. Murray, 477 U.S. at 487. Additionally, the defendant must 23 show that the error he alleges "worked to his "actual and substantial disadvantage, infecting his 24 entire trial with error," Frady, 456 U.S. at 170 (emphasis in original). The "cause and prejudice" 25 standard is more difficult for petitioners to meet than the plain error standard, which applies to 26 defaulted claims on direct review. See Frady, 456 U.S. at 164-66. 27 28
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Defendant gives no explanation or objective factor to justify for his failure to previously

2 raise these issues. Therefore, defendant has not made a showing of cause for his failure to raise 3 readily apparent issues before the district court or on direct appeal. Accordingly, these claims 4 are procedurally defaulted. 5 6 7 I. Regardless of Procedural Default, Defendant's Issues are Meritless. Ground 4 It is the government's position that defendant's claim in Ground Four is procedurally

8 defaulted and waived. However, even if this court should consider it on the merits, defendant's 9 claim must fail. The defendant alleges that the government failed to disclose evidence of a video 10 tape which would have established his lack of knowledge. The defendant's motion is unclear 11 as to whether the defendant is complaining about the government not playing the entire tape 12 before the jury or whether he is alleging that there was another video tape; which in fact does 13 not exist. There is no truth to this bare accusation and the defendant fails to supply any facts in 14 support. The record is clear and supported by the affidavit of trial counsel, that there was only 15 one video tape made during the undercover operation in Nashville. The entire tape was marked 16 and admitted into evidence. (RT 11/26/02 at 115, & 122-123; See Attachment A at 8-13.) Due 17 to the fact that the tape was lengthy and substantial portions did not record any relevant evidence 18 related to the case, the government did not play the tape in its entirety. However, all portions 19 of the video tape, which depicted the defendant's conduct, were shown to the jury. (RT 12/3/02 20 at 40,44, 55-56, & 61, See Attachment A at 14-19.) Accordingly, there are no facts to support 21 this baseless claim. 22 23 Ground 5 It is the government's position that defendant's claim in Ground Five is also procedurally

24 defaulted and waived. However, even if this court should consider it on the merits, defendant's 25 claim must fail. The defendant claims that there was an improper jury communication and the 26 court failed to investigate. To the contrary, the court was immediately notified of a brief and 27 insignificant contact between AUSA Andrew Pacheco and a juror prior to court convening on 28
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1 December 10, 2002.

With all parties present, the court discussed the nature of the

2 communication with AUSA Pacheco. (RT 12/10/02 at 4-5; See Attachment A at 32-34.) 3 Specifically, on December 10, 2002, AUSA Pacheco advised the court and defense

4 counsel that he was approached by a juror while entering the courtroom and asked how many 5 more witnesses. AUSA Pacheco responded "three or four, but we'll let the judge talk to you 6 about that." (RT 12/10/02 at 4; See Attachment A at 33.) Immediately AUSA Pacheco

7 informed the court and counsel of the contact. The court inquired into the nature and content 8 of the communication, which was determined to not involve a discussion of the underlying facts 9 of the case. The court made an inquiry to all defense counsel as to their position regarding the 10 contact. (RT 12/10/2002 at 4-5; See Attachment A at 33-34) No defense counsel objected and 11 as noted in the affidavit of trial counsel and appellate counsel for the defendant, both counsel 12 believed that the Court made an appropriate inquiry into the nature and content of the 13 communication. They believed that the communication was de minimus and it did not involve 14 the underlying facts of the case. Neither counsel believed that the defendant suffered any 15 prejudice and believed that there was no reasonable possibility that the communication 16 influenced the verdict. Additionally, trial counsel noted that he was satisfied with the 17 composition of the jury and believed that the jury would be able to fairly and impartially judge 18 the evidence. (See Attachment A at 42 & 44. 3/ ) 19 Not every contact between a court personnel and a juror is prejudicial, even where it

20 concerns matters related to the case. United States v. Brande, 329 F.3d 1173, 1177 (9th Cir. 21 2003). "To determine whether an evidentiary hearing must be held `the court must consider the 22 content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility 23 of the source.'" (citation omitted) Id. at 1176-1177. "If these factors warrant holding a hearing, 24 a hearing should be held unless the court already knows `the exact scope and nature' of the 25 26 Attached is an unsigned copy of appellate counsel's affidavit. She has approved the content of the affidavit and will be returning the original to undersigned counsel in the near 27 future. Once received, the original affidavit will be filed with the court. 28
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1 improper contact." (citation omitted) Id. at 1177. A trial court has considerable discretion in 2 determining whether to hold an investigative hearing on allegations of jury misconduct or bias 3 and in defining its nature and extent. United States v. Foulard, 730 f.2d 1292, 1305 (9th Cir. 4 1984). 5 In the case at hand, with all parties present, the court investigated the juror communication.

6 The prosecutor's rendition of the juror contact indicated that the incident was harmless and brief 7 in nature. When notified of the nature and content of the communication, defense counsel did 8 not ask for a hearing to examine the prosecutor or juror further. Since the court and defense 9 counsel knew the exact scope and nature of the communication, defense counsel did not seek 10 any further remedy. This case is similar to the facts in United States v. Soulard, 730 F.2d 1292, 11 1306, (9th Cir. 1984). In Soulard, where the inquiry made by the court, even though it was not 12 a full fledge hearing, was a sufficient hearing under the circumstances. 13 If an unauthorized communication with a juror was de minimus, the defendant must show

14 the communication could have influenced the verdict before the burden of proof shifts to the 15 prosecution. Caliendo v. Warden of California Men's Colony, 365 f.3d 691, 696 (9th Cir. 16 2004). A defendant must offer sufficient evidence to trigger the presumption of prejudice. Id. 17 at 696. In the case at hand, the defendant has failed to meet his burden. The inquiry made by 18 the court was sufficient and there was no showing that the harmless and brief contact could not 19 have affected the jury deliberations. Accordingly, this ground must also fail. 20 21 Ground 6 It is the government's position that defendant's claim in Ground Six is also procedurally

22 defaulted and waived. However, even if this court should consider it on the merits, defendant's 23 claim must fail. The defendant claims that his convictions for attempt and conspiracy to possess 24 cocaine with the intent to distribute constituted double jeopardy. The law is clear, in United 25 States v. Arbelaez, 812 F.2d 530, 534 (9th Cir. 1986) the Ninth Circuit Court of Appeals noted 26 that conspiracy and attempt are separate offenses with distinct elements. 27 28
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The essential elements of a conspiracy are: (1) an agreement to accomplish an illegal objective, (2) one or more overt acts in furtherance of the illegal objective and (3) the requisite intent necessary to commit the underlying substantive offense. United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980). By contrast, the elements of an attempt are (1) intent to engage in criminal conduct and (2) an overt act which is a substantial step towards commission of the crime. See United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981). Because attempt does not require an agreement, a necessary element of a conspiracy, the two

6 offenses are not the same. Id. at 534. Additionally, in Blockburger v. United States, 284 U.S. 7 299 (1932), the Supreme Court held that: "where the same act or transaction constitutes a 8 violation of two distinct statutory provisions, the test to be applied to determine whether there 9 are two offenses or only one is whether each provision requires proof of a fact which the other 10 does not." Id. at 304. Because attempt and conspiracy do not have identical elements, they are 11 two separate crimes and the double jeopardy does not apply. Case law is well established that 12 a conviction for the commission of a substantive offense and a conspiracy to commit the offense 13 are two distinct crimes and the plea of double jeopardy is no defense to a conviction for both 14 offenses. Pinkerton v. United States, 328 U.S. 640 (1946). See also, United States v. 15 16 of both offenses. 17 Additionally, as discussed above, defendant presented no evidence to justify failure to raise 18 these issues on appeal. Nor has he demonstrated actual prejudice. Accordingly, all of these 19 claims must fail. 20 C. Relitigation argument 21 Grounds Two and Three are precluded because they have already been litigated and resolved 22 on direct appeal. Just as a defendant may not raise an argument in a 2255 petition that he could 23 have raised on appeal, he generally may not relitigate an issue he unsuccessfully raised on 24 25 in his direct appeal, and this court expressly rejected it. Therefore, this claim cannot be the basis 26 of a § 2255 motion."); Egger v. United States, 509 F.2d 745, 748 (1975) ("Issues raised at trial 27 28
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Rubalcaba, 811 F.2d 491 (9th Cir. 1987). Accordingly, the defendant was properly convicted

appeal. United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985) ("Redd raised this precise claim

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1 and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255); 2 Battaglia v. United States, 428 F.2d 957, 960 (9th Cir. 1970) (a § 2255 motion may not relitigate 3 issues raised on direct appeal). See also Withrow v. Williams, 507 U.S. 680, 720-21 (1993) 4 (Scalia, J., concurring) (collecting cases). The defendant's argument raised in Grounds Two and 5 Three in his § 2255 petition regarding the sufficiency of the evidence were litigated and resolved 6 by the Ninth Circuit, and should not be revisited. (See Attachment A at 6-7.) The law is clear 7 in the Ninth Circuit that "when a matter has been decided adversely on appeal from a conviction, 8 it cannot be litigated again on a 2255 motion." United States v. Scrivner, 189 F.3d 825, 828 9 (9th Cir. 1999). Accordingly, these claims lack merit and this court should not readdress these 10 issues. 11 12 D. Defendant's counsel was not ineffective. As to Ground One, defendant claims that his trial counsel was ineffective in that: (1) he

13 refused to let the defendant testify at trial; (2) he refused to object to a brief communication 14 between the prosecutor and a juror; and (3) he refused to file a motion for new trial. He also 15 claims that his appellate counsel was ineffective for failing to raise the claims in Grounds Four, 16 Five and Six on direct appeal. None of his claims have merit. 17 18 I. Law. To prevail on a claim of ineffective assistance of counsel, a defendant must show that

19 counsel's performance was deficient and that counsel's deficient performance prejudiced the 20 defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant fails to meet 21 either part of the test, the claim of ineffective assistance must be denied. Id. at 700. The 22 defendant must demonstrate that counsel's performance was unreasonable under prevailing 23 professional standards, Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001), and must 24 overcome a strong presumption that counsel's conduct falls within a wide range of reasonable 25 professional assistance which, under the circumstances, might be considered sound trial strategy. 26 United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). Defendant must also show that 27 28
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1 there is a reasonable probability that, but for counsel's unprofessional errors, the result would 2 have been different. Hasan, 254 F.3d at 1154. 3 To successfully show that he was denied effective assistance of counsel, a defendant must

4 demonstrate (1) that counsel's actions were outside the wide range of professionally competent 5 assistance, and (2) that he was prejudiced by reason of counsel's actions. Strickland v. 6 Washington, 466 U.S. 668, 687-90 (1984). Generally, "[r]eview of counsel's performance is 7 highly deferential and there is a strong presumption that counsel's conduct fell within the wide 8 range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 9 (9th Cir. 1996). 10 The customary procedure for raising a claim of ineffective assistance of trial counsel in this

11 Circuit is by collateral attack under 28 U.S.C. § 2255. United States v. Oplinger, 150 F.3d 1061, 12 1071 (9th Cir. 1998). Such claims are ordinarily only reviewed in collateral proceedings because 13 they usually cannot be resolved without development of facts outside the record. United States 14 v. Sitton, 968 F.2d 947, 960 (9th Cir. 1992). Raising ineffective assistance of counsel claims in 15 a habeas proceeding permits the district court to decide first whether the claim has merit, and 16 second, if it does, to develop a record as to what counsel did, why it was done, and what, if any, 17 prejudice resulted. Oplinger, 150 F.3d at 1071. Ineffective assistance of counsel claims are 18 generally considered on direct appeal only if the record adequately sets forth the facts giving rise 19 to the claim. See United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1996). 20 21 II. Valid Waiver of His Right to Testify. The defendant accuses his defense counsel of preventing him from testifying on his own

22 behalf. However, the defendant raised this issue before the Ninth Circuit. The Ninth Circuit 23 concluded based on a based on a thorough review of the record the defendant's claim lacked 24 merit and did not require dismissal. (See Attachment A at 7.) If the Ninth Circuit does exercise 25 its discretion to review an ineffective assistance claim on direct appeal and rejects it, the 26 defendant would not ordinarily be able to relitigate the ineffectiveness claim in a habeas petition. 27 28
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1 See Battaglia v. United States, 428 F.2d 957, 960 (9th Cir. 1970) (a § 2255 motion may not 2 relitigate issues raised on direct appeal). 3 Even if this claim is reviewed the record demonstrates that trial counsel for Dobson advised

4 the court that he was going to meet with Dobson over the weekend, prior to the government 5 resting, to discuss whether Dobson would testify on his own behalf. (RT 12/4/02 at 97-98; See 6 Attachment A at 26-27.) As set forth in trial counsel's affidavit, he met with the defendant and 7 discussed the issue as to whether the defendant would testify. Prior to the government resting, 8 trial counsel again confirmed the defendant's decision that the would not testify. (See 9 Attachment A at 41-42.) Subsequently, the defense rested without Dobson testifying. (RT

10 12/10/02 at 180; See Attachment A at 35.) It was not until the end of the prosecution's initial 11 closing, after the close of the evidence-taking stage of the trial, did Dobson express an interest 12 in testifying. (RT 12/11/02 at 50-52; See Attachment A at 38-40.) Additionally, the defendant 13 now claims his attorney threatened him if he requested to testify. This is the first time this claim 14 has been made. It was not raised with before the trial court of the appellate court. It was not 15 raised until approximately four years after the defendant's convictions. As set forth in the trial 16 counsel's affidavit, at no time did he threaten the defendant. (See Attachment A at 42.) The 17 claim is suspect by the timing alone. Accordingly, the defendant has not demonstrated that his 18 silence did not constitute a waiver of his right tot testify. 19 Defendant's claim that he was denied his constitutional right to testify on his own behalf is

20 likewise nothing more than a conclusory allegation. Moreover, the record clearly supports a 21 finding that defendant waived his right to testify on his own behalf at trial. 22 23 24 25 26 27 28
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A defendant is `presumed to assent to his attorney's tactical decision not to have him testify.' The district court has no duty to affirmatively inform defendants of their right to testify, or to inquire whether they wish to exercise that right. `[W]aiver of the right to testify may be inferred from the defendant's conduct and is presumed from the defendant's failure to testify or notify the court of his desire to do so. A defendant who wants to reject his attorney's advice and take the stand may do so `by insisting on testifying, speaking to the court, or discharging his lawyer.' When a defendant remains `silent in the face of his attorney's decision not to call him as a witness,' he waives the right to testify.

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1 United States v. Pino-Noriega, 189 F.3d 1089, 1094-95 (9th Cir. 1999) (internal citations 2 omitted) (emphasis added). As noted above, defendant's counsel rested without presenting any 3 testimony or witnesses. (RT 12/10/02 at 180; See Attachment A at 35.) Defendant did not 4 protest counsel's decision. His silence in the face of his attorney's decision not to call him as 5 a witness waived his right to testify. Id. 6 The Ninth Circuit also discussed the issue of timing for a defendant to request to testify in

7 United States v. Pino-Noriega,189 F.3d at 1095. In that case, the court determined that the 8 defendant waived his right to testify when he requests to testify after the jury had reached a 9 decision. While recognizing that the Ninth Circuit has not decided at which point in time it 10 becomes too late for the defendant to request to testify, the court thoroughly discussed United 11 States v. Jones, 880 F.2d 55, 59-60 (8th cir, 1989). Jones involved a defendant who asserted his 12 right to testify after the close of the evidence-taking stage of the trial but before the case had 13 been argued or sent to the jury. The Eight Circuit upheld the district court's decision not to 14 allow the defendant to testify. In the case at hand, the timing of the defendant's request was 15 substantially later than the timing in Jones. The prosecution was within minutes of concluding 16 its initial closing, which occurred on the following day from the closure of the evidence-taking 17 stage. At no time before or at the time defense rested, did the defendant notify the court that 18 he wanted to testify. At no time prior to the initiation and near conclusion of the government's 19 initial closing did the defendant request to testify. Accordingly, the trial court's decision to not 20 re-open the case and allow the defendant to testify was a sound decision. When a district court 21 retains discretion to reopen the evidence, a rule generally limiting testimony to the evidence22 taking phase of the trial is not arbitrary or disproportionate to the purposes it was designed to 23 serve. Jones, Id. at 59. Accordingly, the district court properly precluded the defendant's 24 testimony. 25 26 III. Juror Communication. Defendant contends that his counsel failed to object to a brief communication between a

27 juror and the prosecutor. As discussed above on pages 6 through 8, the court conducted a 28
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1 hearing in which the exact content and nature of the communication was discussed and 2 determined. The contact was de minimus and did not concern the facts of the underlying case. 3 Counsel did not believe that the defendant suffered any prejudice nor did counsel believe the 4 brief contact could have influenced the jury. Accordingly, the defendant has failed to establish 5 that he suffered any prejudice to support this claim. 6 7 IV. New Trial Motion. As to the claim that trial counsel refused to file a motion for new trial, based on the juror

8 communication, as stated above, there is no evidence that the defendant suffered any prejudice 9 or that the brief and innocuous communication could have affected the verdict. The court held 10 an appropriate inquiry and no counsel objected. Additionally, trial counsel has avowed in his 11 affidavit that he did not believe there were any non-frivolous grounds which would warrant the 12 filing of a motion for new trial. (See Attachment A at 42-43.) It is not ineffective assistance of 13 counsel if a motion for new trial would have been for no avail. See Wilson v. Henry, 185 F.3d 14 986, 991 (9th Cir. 1999). Accordingly, this ground must fail. 15 16 V. Miscellaneous Allegations. The defendant also claims that trial counsel refused to object to the fact that the actual

17 telephones which were initially seized by law enforcement were not introduced at trial and that 18 trial counsel did not inquire into the informer's contacts in Nashville are frivolous arguments. 19 As to the actual telephones seized, after determining the number assigned to the phones, the 20 telephones were photographed and returned to either a family member or friend of the defendant 21 or co-defendant Martin who is the defendant's nephew. (RT 12/05/02 at 1, 35, 57, See 22 Attachment A at 28-31.) Accordingly, the defendant cannot claim prejudice that the actual 23 telephone were not introduced at trial as they were in control of an individual associated with 24 the defendant. However, the relevant evidence pertaining to the telephones came from their 25 usage which was established by subpoenaing toll records from the service providers. 26 As to the failure to inquire into the informant's Nashville associates, as outlined in trial

27 counsels affidavit, there was no evidence that the informer had any associates in Nashville. It 28
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1 was coconspirator Buena who had the customers in Nashville which turned out to be the 2 defendant and co-defendant Martin. (See Attachment A at 42.) This Court need not consider 3 issues which are not argued specifically and distinctly; a bare assertion by defendant does not 4 preserve a claim. See Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 5 122 F.3d 1211, 1217 (9th Cir. 1997) (court will only consider issues argued specifically and 6 distinctly in opening brief; it will not manufacture arguments for appellant, and bare assertion 7 does not preserve claim); see also James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (conclusory 8 allegations which are not supported by statement of specific facts do not warrant habeas relief). 9 A review of the entire record demonstrates that trial counsel provided defendant with an

10 aggressive, thorough defense. He filed relevant pretrial motions and engaged in extensive and 11 focused cross examinations of the government witnesses. He had a focused trial strategy and 12 theory which he maintained throughout the course of trial. Counsel's performance both before 13 and during trial, clearly fell within the appropriate range of professional representation. 14 15 VI. Appellate Counsel. As to the allegation that appellate counsel was ineffective for failing to raise various claims,

16 appellate counsel provided an affidavit wherein she avows that she conducted an extensive 17 review of the trial record which included reviewing transcripts of all proceedings in the 18 underlying case. Only after this review, did she assist in preparing an appellate brief raising all 19 issues which we believed were appropriate based on the law and the underlying facts. She 20 determined that the Ground 4, 5 and 6, raised by the defendant in his 2255 motion were not 21 supported by the facts or the law and would have been frivolous. (See Attachment A at 44-45.) 22 In effect, it appears that defendant is arguing that ineffective assistance of appellate counsel

23 for failing to raise what are frivolous issues. The Supreme Court has noted that none of its 24 decisions "suggest[ ] . . . that the indigent defendant has a constitutional right to compel 25 appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of 26 professional judgment, decides not to present these points." Jones v. Barnes, 463 U.S. 745, 752 27 (1983). Further, appellate counsel is not constitutionally required to "raise every `colorable' 28
15

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1 claim suggested by a client." Id. at 754; see also Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 2 1997) ("A hallmark of effective appellate counsel is the ability to weed out claims that have no 3 likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that 4 some argument will persuade the court."). The defendant has presented no evidence that the 5 appellate counsel's conduct was deficient. Additionally, the defendant cannot show he was 6 prejudiced by appellate counsel's decisions because his claims were not supported by fact and/or 7 were contrary to established law. See Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) 8 (defendant cannot establish ineffective assistance if his claims would not have succeeded on 9 appeal). Accordingly, the defendant's claim of ineffective assistance of counsel must fail. 10 11 E. Conclusion Based on the foregoing, defendant is not entitled to relief on any of the claims raised in his

12 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The motion 13 should be denied. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
16
I hereby certify that on December 5, 2006, I served the attached document by U.S. Postal mail on the following, who is not a registered participant of the CM/ECF system: Steve Cordell Dobson #17338-075 FCI- Memphis P.O. Box 34550 Memphis, Tennessee 38184

Respectfully submitted this 5th day of December, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

s/David A. Pimsner

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