Opinion
CV-21-8001-PCT-DGC (JFM) CR-18-8052-PCT-DGC
01-12-2022
Loren Joel McReynolds, Movant/Defendant v. United States of America, Respondent/Plaintiff.
REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Movant, following his conviction in the United States District Court for the District of Arizona, filed an Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 8). Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND & PROCEEDINGS AT TRIAL
Movant was indicted on February 27, 2018 on 10 charges, including firearms possession by a felon (Counts 1 (Remington) and 12 (Bushmaster)), death/harassment of a wild burro (2 (1/10/17) and 3 (1/11/17)), Lacey Act (wildlife violations) (4 (guide services), 9 (elk antlers), 10 (sheep skull), 11 (deer)), evasion of currency reporting requirements (7 (4/2/13 & 8/27/13) and 8 (7/5/16)), and forfeiture allegations regarding various firearms, ammunition, and animal parts. (CRDoc. 1, Indictment.) (Filings in the underlying criminal case, CR-18-8052-PCT-DGC, are referenced herein as “CRDoc. .”) The allegations arose out of events occurring between April 2016 and September 2017.
Movant's co-defendant, Rhodes, was indicted on charges of transfer of firearm to felon (Count 5) and false statement in firearm purchase (6), arising out of Rhodes' transfer of a weapon to Movant, and falsely representing to the seller that she (rather than Movant) was the actual buyer.
Movant pled guilty (without benefit of a plea agreement) only as to Count 1 (possession of Remington firearm and ammunition). (CRDoc. 89, M.E. 7/9/19.) On October 1, 2019 Movant was sentenced to a prison term of 46 months on Count 1. (CRDoc. 117, Judgment.)
A Preliminary Order of Forfeiture was issued on September 30, 2018 (CRDoc. 113), only as to the Remington Model 700 .260 rifle and ammunition.
On October 31, 2019, the remaining charges against Movant (Counts 2-4 and 7-12) were dismissed on the Government's motion, on the basis that rather than filing a superseding indictment in this case, the grand jury had issued a new indictment in CR-19-8245-PCT-DGC on the same offenses. (CRDoc. 142, M.E. 10/31/19.)
Ultimately, on December 9, 2020, the new indictment was dismissed without prejudice on motion of the Government, citing past and ongoing delays from COVID-19 and Movant's multiple changes of counsel. (CR-19-8245-PCT-DGC at Doc. 194, 195.)
B. PROCEEDINGS ON DIRECT APPEAL
Movant filed a direct appeal arguing errors in sentencing from: (a) consideration at sentencing as relevant conduct the allegations of the dismissed Count 12 (possession of a Bushmaster AR-15 rifle); (b) failure to apply a reduction under U.S.S.G. § 2K2.1(b)(2) (possession of firearm only for sporting or collection, without discharge); and (c) unreasonableness of the 46-month sentence.
In a Memorandum Decision issued November 19, 2020 (CRDoc. 165, Mem. Dec. 11/19/20) the Ninth Circuit found no merit to the asserted claims, and affirmed Movant's conviction and sentence.
Movant filed petitions for panel rehearing and for rehearing en banc, but did not seek further review by the Supreme Court (Motion, Doc. 8 at 2), and on January 5, 2021 the appellate court issued its Mandate (CRDoc. 165). (See Order 2/25/21, Doc. 9 at 2.)
C. PRESENT MOTION TO VACATE PROCEEDINGS
Three weeks later, on January 26, 2021, Movant filed what the Court construed as an original Motion to Vacate (captioned “UNC - PRO - TUNC”). That motion was dismissed with leave to amend for failure to use an approved form. (Order 1/26/21, Doc. 7.)
On February 8, 2021, Movant filed his Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 8), raising four grounds for relief:
(1) there is “[n]ewly found[] evidence [that] reflects the firearm...was unlawfully seized pursuant to a[n] invalid search warrant executed on January 13, 2017”;
(2) There was a “[c]hange in [the] law and ineffective counsel” because the Supreme Court's decision is Rehaif v. United States, __ U.S. __, 139 S.Ct. 2191 (2019), “set new precedent requiring the government to prove a new element in finding a person guilty of 18 U.S.C. § 922(a)(1) and § 924(a)(2)”;
(3) he received ineffective assistance of counsel; and
(4) the unlawful seizure of Movant's and his co-defendant's cellular phones “produced text messages and photos that were used in drastically [e]nhancing sentence, that derived from corrupt extraction reports.”(Order 2/25/21, Doc. 9 at 2.)
Respondent filed its Response (Doc. 12) on April 26, 2021. Respondent asserts defenses of waiver by entry of his guilty plea, procedural default on direct appeal, bar under the law of the case doctrine, bar under Stone v. Powell. Respondent also argues the claims are without merit.
Petitioner replies (Doc. 14) arguing the merits of some of his claims, and various reasons to excuse his waiver or procedural defaults.
III. APPLICATION OF LAW TO FACTS
A. GROUND 1 - SEIZURE OF FIREARM
1. Parties Arguments
In Ground 1, Movant argues that newly discovered evidence reflects that the search warrant relied on to seize a firearm on January 13, 2017 was issued telephonically and only signed by the judge after the return. To support this claim, Movant references the Government's Response to his Motion to Dismiss (CRDocs. 112-114). He argues he did not raise this claim on direct appeal because the information was not then known. (Motion, Doc. 8 at 5.)
Respondent argues this claim was waived by Movant's guilty plea, procedurally defaulted on direct appeal, barred under Stone v. Powell, 428 U.S. 465, 494 (1976), barred by the law of the case, and is without merit. With regard to the latter, Respondent argues this issue was argued and resolved by the Court in the second prosecution on the dismissed charges (CR-19-8245-PCT-DLR, which constitutes the law of the case, and is without merit for the reasons expressed by the Court at trial. (Response, Doc. 12 at 10-12.)
Movant replies that timing of the signature reveals a fraud. (Reply, Doc. 14 at 1.)
Movant also argues in his Reply that counsel should have moved to suppress the evidence, and the facts show misconduct by the prosecution. “The district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Accordingly, except as they may provide exceptions to the procedural defenses, the undersigned does not reach these additional claims.
2. Factual Background
In addressing the validity of the January 2017 warrant in the second prosecution, as challenged by Movant in his pro se Motion to Suppress, the Court made the following factual findings:
Defendant also contends that the warrant is invalid because it was issued on January 12, 2017, but the supporting affidavit was not filed with the court until January 18, 2017. Doc. 113 at 1-2. But the affidavit bears a signature date by the judge of January 12, 2017 - the same day the warrant was issued. MTS Ex. 1 at 000179. It appears
the judge signed the affidavit and warrant at the same time. Id. at 000175, 000179. The fact that the two documents were not filed in the court's docket until January 18, 2017 - the same day the warrant was returned to the court and signed by a judge (see MTS Ex. 3 at 000191) - does not suggest the warrant is invalid. Defendant has cited no authority suggesting that a warrant is invalid on this basis.(CR-19-8245-PCT-DGC, Doc. 142, Order 10/6/20 at 3; Id. at Doc. 113, Mot. Suppress at 1-2.) Copies of the January 2017 search warrant were filed in connection with the Motion to Suppress. (Id. at Doc. 145-1, Mot. Supp. Exh., Exh. 1 at “174”-“179.”)
3. Waiver
Respondent argues Movant has waived this claim by his guilty plea.
“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). Therefore, when “a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id. Rather, he “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel” amounted to ineffective assistance of counsel. Id.
Accordingly, to obtain review of this claim, Movant must show that the advice he received from counsel leading to his plea was ineffective. The instances of ineffectiveness raised by Movant herein relevant to the entry of his plea are without merit for the reasons discussed hereinafter. Therefore, Ground 1 must be dismissed with prejudice as waived.
4. Law of the Case
Respondent argues that the validity of the seizure of the cellphones was resolved by this Court in the 2019 case, and such decision is the law of the case. (Response, Doc. 12 at 11.) Movant does not reply.
“Under the ‘law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) (quoting Richardson v. United States, 841 F.2d 993, 996 (9th Cir.1988)) (emphasis added). But see Stoufflet v. United States, 757 F.3d 1236, 1240 (11th Cir. 2014) (distinguishing law of the case doctrine from the procedural bar preventing reconsideration in 2255 of issues decided on direct appeal).
If writing on a clean slate, the undersigned would be inclined to cast the preclusion of reconsideration of appellate decisions in 2255 proceedings as something other than “law of the case” because that doctrine is subject to the exceptions discussed hereinafter. The undersigned doubts that the Ninth Circuit would consider a 2255 court free to reject the circuit court's decision of an issue in a criminal case as “clearly erroneous.” See Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972) (issue decided on direct appeal “rightfully or wrongfully…cannot be litigated again on a 2255 motion”).
Here, however, the decision reference by Respondent was not in this case, but in the 2019 case. While related, they are very clearly separate cases.
Even if the instant prosecution and the 2019 prosecution were treated as the same case, Respondent fails to show that the doctrine applies. The Ninth Circuit has held that “[a] collateral attack is the ‘same case' as the direct appeal proceedings for purposes of the law of the case doctrine.” Jingles, 702 F.3d at 500 (emphasis added). Respondent points to, and the undersigned has found, no authority extending that principle to apply between the trial court's decisions and a 2255 proceeding. Moreover, Respondent points to and the undersigned has found no controlling authority applying the law of the case doctrine between a decision at trial and a 2255 proceeding. Cf. Alaimalo v. United States, 645 F.3d 1042, 1049 (9th Cir. 2011) (declining to decide if the law of the case doctrine applies to “claims in successive habeas petitions”).
In support of this contention, Respondent cites United States v. Scrivner, 189 F.3d 825, 828 & n.1 (9th Cir. 1999). (Id.) However, Scrivener opined only generally about the law of the case doctrine, and applied it to a prior appellate decision on direct appeal when considering an appeal from a 2255 motion. Scrivener also quoted Odom v. United States, 455 F.2d 159, 160 (9th Cir.1972) for the proposition that “The law in this circuit is clear that when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion.” Scrivener, 189 F.3d at 828. Neither Scrivener nor Odom addressed the question whether the law of the case doctrine applies to preclude re-examining the decision of the trial court in a 2255 proceeding.
A leading treatise argues the doctrine does not apply in the trial-to-2255 context.
Post-judgment proceedings in a single action present uncertain challenges…The purpose of procedures that allow post-judgment challenges, however, is to correct elemental mistakes, including mistakes of law. If relief is warranted under Federal Rule of Civil Procedure 60(b), neither res judicata nor law of the case should get in the way. Similar questions arise when a criminal conviction is challenged by a motion to vacate a criminal sentence or a petition for habeas corpus. Here too the purpose of the proceeding is to correct fundamental mistakes despite the importance of finality. Perhaps the best outcome, as reflected in the cases described in the footnotes, is that a trial court is bound by the law of the case established on a prior appeal, and successive collateral attacks may invoke the law of the case established on an earlier attack, while other issues are governed, not by the law of the case, but by the narrow grounds for relief that govern the proceeding.Wright & Miller, Law of the Case, 18B Fed. Prac. & Proc. Juris. § 4478 (2d ed.) (emphasis added).
The undersigned agrees that the law of the case doctrine does not prevent reconsideration in a 2255 proceeding of matters addressed at trial.
Because the undersigned finds other, clear bases to dispose of Movant's claims, the undersigned would in any event decline to reach the law of the case defense. Even if the law of the case doctrine applied, it is not an absolute bar, but is subject to exceptions where “(1) the decision is clearly erroneous and its enforcement would work a manifest injustice; (2) intervening controlling authority makes reconsideration appropriate; or (3) substantially different evidence was adduced at a subsequent trial, ” Alaimalo v. United States, 645 F.3d 1042, 1049 (9th Cir. 2011). Avoiding the law of the case doctrine avoids having to consider whether these exceptions would apply.
5. Powell Bar
Respondent argues Movant's claim in Ground 1 is an exclusionary rule claim not cognizable in a 2255 proceeding. (Response, Doc. 12 at 11.) Movant does not reply.
according to Stone v. Powell [428 U.S. 465 (1976)], a federal court may not grant either § 2254 or § 2255 habeas corpus relief on the basis that evidence obtained in an unconstitutional search or seizure was introduced, respectively, at a state or federal trial where the defendant was provided an opportunity to litigate fully and fairly his fourth amendment claim before petitioning the federal court for collateral relief.Tisnado v. United States, 547 F.2d 452, 456 (9th Cir. 1976).
Here, Movant offers no reason to conclude he did not have a full and fair opportunity to challenge the warrant at trial. Respondent argues “McReynolds never moved to suppress this evidence before pleading guilty and did not raise any such claim of error on direct appeal.” (Response, Doc. 12 at 12.) "The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
Relief on Ground 1 must be denied under Powell.
6. Procedural Default
The general rule is “that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. U.S., 538 U.S. 500, 504 (2003). Thus, a Section 2255 movant raising a claim for the first time in post-conviction proceedings is in procedural default, and is precluded from asserting the claim. Bousley v. U.S., 523 U.S. 614, 621 (1998) (finding default where petitioner challenging his guilty plea did not raise claim in direct appeal); United States v. Frady, 456 U.S. 152, 165 (1982) (noting that a motion to vacate or modify a sentence under 28 U.S.C. § 2255 cannot be used as a substitute for a direct appeal).
An exception applies to claims of ineffective assistance of counsel, which often require development of a record inappropriate on direct appeal. “We do hold that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 509 (2003).
Here, Movant did not raise this challenge to the search warrant on direct appeal, and it is now procedurally defaulted.
7. Cause & Prejudice by Recent Discovery
A procedural default may be excused based on a showing of cause and prejudice. “Cause” is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). “Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court ‘has not given the term “cause” precise content.'” Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13), cert. denied, 498 U.S. 832 (1990). However, cause should ordinarily turn on some objective factor external to petitioner, for instance:
... a showing that the factual or legal basis for a claim was not reasonably available to counsel, (citation omitted), or that “some interference by officials”, (citation omitted), made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986).
Here, Movant argues this claim relies upon “[n]ewly founded evidence.” But Movant fails to proffer what the evidence is, nor when it was “found.” Moreover, Movant proffers nothing to show that such evidence was not reasonably available to appellate counsel, e.g. that the search warrants were not provided to the defense or were not available upon request. Moreover, it is not merely evidence which must have been available, but rather the factual basis for the claim. And it must have been unavailable to both counsel and Movant.
And the mere fact that Movant had not previously recognized the (purported) legal significance of the evidence does not provide cause to excuse a failure to raise the claim on direct appeal. “The mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 486.
8. Related Ineffective Assistance
As a basis to avoid his waiver, Movant argues that his plea was not knowing and voluntary because trial counsel should have pursued suppression of the evidence resulting from the January 2017 warrant. But Movant proffers nothing to show that there was a valid objection to be made. As noted in the Court's ruling on the motion to suppress in the second prosecution, it was only the filing date (January 18, 2017) that was after the execution of the warrant, and both signatures by the judge were January 12, 2017. (CR-19-8245-PCT-DGC, Doc. 142, Order 10/6/20 at 3; Id. at Doc. 145-1, Mot. Supp. Exh., Exh. 1, at “174”-“179.”) Movant proffers nothing to show a valid objection based upon a subsequent filing date.
Movant now asserts that the warrant was issued telephonically on the basis of the return, and thus could not have been signed by the judge prior to its execution. Indeed, the Return, references for the warrant No. “Telephonic - no number.” Arizona law (which governed this state search warrant) authorizes telephonic warrants under these circumstances: signature by a peace officer on instruction by the judge, Ariz. Rev. Stat. § 13-1913(E); and signature by the judge on a telefacsimile, Ariz. Rev. Stat. § 13-1915(E). In each instance, the judge is required to include sign the copy before him with the date of the actual issuance. Thus, nothing about a telephonic issuance indicates a later signature time on the warrant. It is true that the judge signed the Return on January 18, 2017. (CV-19-8245, Doc. 145-1 at 11.) But nothing in Arizona law requires the judge sign the return, see Ariz. Rev. Stat. § 13-1915, -3918, -3921, let alone requiring it be signed before execution. Indeed, the whole point of the return is to memorialize the results of execution after it has been completed.
Movant fails to show a valid objection. “The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
9. Conclusion re Ground 1
Based upon the foregoing, Movant's claim in Ground 1 is waived and procedurally defaulted. Accordingly it must be dismissed with prejudice. In addition, it is an exclusionary claim barred under Powell, and without merit, and must be denied.
B. GROUND 2 - REHAIF
1. Parties Arguments
In Ground 2, Movant raises a substantive claim and a procedural claim of ineffective assistance of counsel based upon the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), decided on June 21, 2019, just 18 days before entry of Movant's guilty plea on July 9, 2019. Movant argues that at the change of plea, the Government filed a memorandum addressing the decision, counsel advised Movant that it did not apply to the case, and that Movant should proceed with his guilty plea. Movant argues that Rehaif applied, and under it he had a valid defense based upon his belief that his right to possess firearms had previously been automatically reinstated, and this belief was reinforced by his receipt of a license to professionally guide big game hunting expeditions. Movant denies knowing why the issue was not raised on direct appeal, and questions whether it was supported by the record. (Motion, Doc. 8 at 6.)
Movant casts Rehaif as a change in the law. While Rehaif was newly decided, it was decided, available, and explicitly applied at the time of his change of plea. Accordingly, the newness of Rehaif is not, of itself, reason to avoid Movant's waiver or procedural defaults.
The undersigned addresses this claim in two parts: Ground 2A asserting a substantive claim of innocence under Rehaif, and Ground 2B asserting ineffective assistance of trial counsel arising from his advice that Rehaif did not supply a defense. Respondent argues that the substantive claim in Ground 2A was waived, procedurally defaulted, and is without merit. Respondent argues that because of the lack of merit, the claim of ineffective assistance of trial counsel is without merit. Moreover, Respondent argues Movant made multiple extra-judicial admissions, which refuted his claim of belief in his not being in a prohibited status. (Response, Doc. 12 at 12-13.)
In his Reply, Movant argues his plea was not voluntary because he was “over talked, ” “suffering from delirium, ” and counsel advised him Rehaif did not apply, and he would have testified that he was unaware that he was in a “prohibited status” at the times of his possession because he had weeks earlier filed a motion for reinstatement of his rights. He complains that he had not previously seen the transcripts of his change of plea or sentencing (Exhibits A and B to the Response, Doc. 12), his legal documents having been confiscated by prison staff. (Reply, Doc. 14 at 2-3.)
2. Waiver and Procedural Default of Ground 2A
For the reasons discussed hereinabove, Movant has waived his substantive claim under Rehaif in Ground 2A by his guilty plea, and procedurally defaulted it by failing to raise it on direct appeal. As discussed hereinafter, Movant fails to show ineffective assistance of counsel on this issue (or any other) to avoid his waiver, and fails to show ineffective assistance of appellate counsel to avoid his procedural default.
3. Lack of Records
To provide cause for his procedural default, Movant argues that he had not previously seen the transcripts of his change of plea or sentencing (Exhibits A and B to the Response, Doc. 12), and his legal documents were confiscated by prison staff. (Reply, Doc. 14 at 2-3.) However, Movant makes no suggestion that the transcripts were not available to appellate counsel. Further, Movant was present during the transcribed hearings, and thus was aware of the events reflected in the transcripts.
Moreover, Movant fails to show what in those records was necessary to the presentation of his claims in Ground 2A on direct appeal. The essence of Movant's claim was not based upon the record, but upon his own averments as to his beliefs. The only references to the record relied on by Movant herein is to support his attempts to counter Defendants' procedural and substantive defenses.
Movant fails to show that lack of access to the record caused his failure to raise the instant claim on direct appeal.
4. Ineffectiveness of Counsel
Movant asserts ineffectiveness of trial counsel as Ground 2B and as a basis for avoiding his waiver, and points to appellate counsel's failure to raise the claim as cause to excuse his procedural default.
Viable Defense Assumed - The undersigned assumes arguendo that Rehaif provided a basis to argue that Movant's belief his possession rights had been reinstated was a defense, because it would negate the mens rea of his knowledge of having a status which (whether known to him or not) met the requirements under the statute. “After Rehaif, it may be that a defendant who genuinely but mistakenly believes that he has had his individual rights restored has a valid defense to a felon-in-possession charge under this provision.” United States v. Robinson, 982 F.3d 1181, 1186 (8th Cir. 2020). See United States v. Knapp, 859 Fed.Appx. 83, 85 (9th Cir. 2021) (considering Rehaif claim based on erroneous belief of restoration of rights, but concluding evidence showed knowledge rights not restored); United States v. Jarnig, 860 Fed.Appx. 471, 473 (9th Cir. 2021) (same, but noting argument that restoration was an affirmative defense, not an element). See also Rehaif, 139 S.Ct. at 2197-2199 (distinguishing between mistake as to lawfulness of proscribed conduct and mistake of law on collateral matter negating an element of the offense). But see Shipley v. United States, CR-16-01061-TUC-DCB-JR, 2021 WL 1733390, at *1 (D. Ariz. May 3, 2021) (considering claim based on defendant's belief his rights had been reinstated on the basis that “Rehaif does not aid him in the context of this argument because the Supreme Court did not change the generally accepted rule that a mistake of law is not a defense to criminal activity.”).
Movant was not required to know the bridge between his possession and his status, i.e. that the statutes made it illegal, because of his status, for him to possess the weapons. See United States v. Singh, 979 F.3d 697, 727 (9th Cir. 2020), cert. denied sub nom. Matsura v. United States, 141 S.Ct. 2671 (2021) (rejecting contention that “Rehaif requires the Government to prove he knew not only his status, but also that he knew his status prohibited him from owning a firearm”).
With regard to his mens rea, Movant asserts under penalty of perjury:
I believed that two years proceeding [sic] any incarceration all rights could be and were possibly automatically reinstated.
The issuance of a license authorizing me to professionally guide big game hunting expeditions, which requires exercising
firearm safety, from a dule [sic] Federal/State law enforcement agency (AZGFD) further enable my beliefs and thoroughly led me to believe that I was authorized to possess and bear arms while maintaining the license and exercising such activities.(Pet. Doc. 8 at 6.) Movant proffers no other evidence to be adduced at an evidentiary hearing to support these contentions.
The undersigned questions whether Movant's belief that his rights “were possibly automatically reinstated” suffices to defeat the requisite mens rea of knowledge of Movant's status. The undersigned also questions whether that assertion, and/or the one founded on the guide license, could have been sufficient to overcome the prosecution's evidence inferring knowledge or prohibited status, e.g. the artifice of having Movant's girlfriend purchase the weapon. The undersigned assumes arguendo, however, that (standing alone) these assertions could have been sufficient.
Ineffective Assistance Standard - Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Movant must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice -there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although Movant must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
Movant bears the burden of proof on such claims. There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The reasonableness of counsel's actions is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689.
Deficient Performance of Trial Counsel - Movant asserts trial counsel's advice to plead guilty was defective. In his Reply, Movant describes this advice as: “the new element doesn't apply to you because you attempted to have your rights reinstated - they'll convict you anyway and you'll just prolong your incarceration.” (Reply, Doc. 14 at 2.)
The court must focus on whether the attorney's advice was appropriate under the circumstances existing at the time of the guilty plea. See Strickland v. Washington, 466 U.S. 668, 690 (1984). The defendant's attorney must predict how the facts would have been viewed by a jury, and make his best judgment as to the weight of the prosecution's case. McMann v. Richardson, 397 U.S. 759, 769 (1970).
Here, Movant does not suggest that he told trial counsel, or that trial counsel was otherwise aware, of Movant's purported mistaken beliefs about automatic restoration or the effect of his hunting-guide license. The undersigned assumes arguendo that counsel was aware of these assertions. Even so, counsel's advice was reasonable under the circumstances. Movant's application for restoration of his rights (particularly when considered alongside the use of Movant's girlfriend as purchaser and his admissions about his prohibited status knowledge) was strong evidence that he was aware he remained prohibited from possessing weapons.
Of course, counsel has a duty to conduct a reasonable investigation, and counsel may not always rely upon a client's silence as justification for a failure to investigate. See e.g. Andrews v. Davis, 944 F.3d 1092, 1111 (9th Cir. 2019). However, Movant's apparent failure to proffer his beliefs to counsel, coupled with circumstances under which Movant was silent, would justify a failure to further investigate.
Respondent describes the other admissions:
McReynolds previously made several admissions on this front. (PSR ¶ 20; see also CR-18-8052 Doc. 107, Ex. 1 at 16 (admission that he “should have gotten [his] rights restored”), Ex. 2 at 3 (admission that he knew he couldn't be in “full possession” of a firearm and could not have “physical possession of a firearm”); Ex. 11 at 18 (admission that “I lost my rights to bear arms” and that “it's not fully uh reinstated yet”), Ex. 11 at 4 (admission that he was a prohibited possessor and that he “knew better”).(Response, Doc. 12 at 13.) Movant makes no assertion these admissions were not made. The undersigned finds they were.
Thus, counsel could have reasonably concluded a conviction would nonetheless result even if Movant were to assert his mistaken beliefs at a trial. See e.g. Knapp, 859 Fed.Appx. at 85 (rejecting claim of belief on status based on other evidence showing contrary knowledge); Jarnig, 860 Fed.Appx. at 473 (same).
In sum, Movant fails to show that the described advice of counsel was unreasonable given the available evidence showing that Movant knew he was a prohibited possessor.
Deficient Performance of Appellate Counsel - Movant also fails to show any basis for a conclusion that appellate counsel was aware of his now asserted beliefs that he was not a prohibited possessor, or that appellate counsel had (in light of the record of Movant's asserted knowledge of his status and the legal unsustainability of the asserted beliefs) any reason to investigate such beliefs. Further, Movant fails to proffer any appellate claim (other than the ineffectiveness claim rejected herein) that would have been supported by such an investigation, given Movant's guilty plea.
Failure to raise the ineffective assistance claim was not ineffective because: (a) such claims are properly deferred to a 2255 motion to vacate; and (b) the claim is (as explained herein) without merit.
Further, appellate counsel performs deficiently only if unpresented claims were “clearly stronger than issues that counsel did present.” Smith v. Robbins, 528 U.S. 259, 285, 288 (2000). “In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy.” Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). “The law does not require counsel to raise every available nonfrivolous defense. Counsel also is not required to have a tactical reason-above and beyond a reasonable appraisal of a claim's dismal prospects for success-for recommending that a weak claim be dropped altogether.” Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citations omitted). Movant proffers nothing to show that his Rehaif claim would have been stronger than the claims raised by appellate counsel.
Prejudice from Trial Counsel - Movant must also show prejudice.
To the extent Movant might rely on trial counsel's failure to investigate Movant's subjective beliefs on his status, he fails to show prejudice. In the context of attacks on the voluntariness of a guilty plea, “where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error ‘prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). As discussed herein, the undersigned cannot find a likelihood of a different result if evidence on Movant's Rehaif claim were presented to the jury.
Movant proffers no reason to believe that, had he gone to trial, his claims of belief in his unprohibited status would have likely resulted in a different outcome. Evidence at trial would have included: Movant's admission prior to the change of plea to knowledge that he was prohibited; the tactic of having his girlfriend purchase the weapon; and a lack of supporting evidence and legal authority for Movant's asserted beliefs. Indeed, it likely that Movant's purported beliefs would likely have appeared to a jury as manufactured, self-serving, after-the-fact, justifications. On that basis, the undersigned cannot find a sufficient likelihood that Movant would have been acquitted at trial such that counsel would have changed his advice to proceed with the guilty plea.
Moreover, Movant fails to show a likelihood that, but for counsel's advice, he would not have pled guilty. At Movant's change of plea proceeding, the Court and counsel engaged in substantial discussion about the potential reading of Rehaif as requiring Movant's knowledge of not only his felony conviction, but also his prohibited status (Exh. A, COP R.T. 7/9/19 at 13-15, 18-19). In the midst of that discussion, and after the Court's advice to Movant that a jury instruction on knowledge of prohibited status might be required, Movant conferred with counsel.
THE COURT: Does that affect your willingness to plead guilty to the charge today?
MR. BURNS: Judge, may I have a moment?
THE COURT: Yes.
(Counsel and defendant confer.)
MR. BURNS: Thank you, Your Honor.
THE COURT: So let me ask you again the question I just asked you, Mr. McReynolds.
Does the possibility that I might require the jury to make all of those findings of knowledge affect your desire to plead guilty in any way?
THE DEFENDANT: No, it doesn't, Your Honor.(Id. at 15.)
Thereafter, Movant testified under oath:
THE COURT: All right.
At this time in November 2016 and January 2017 did you know that because of your prior convictions you were prohibited from possessing a firearm?
THE DEFENDANT: Yes, I did, Your Honor.(Id. at 19.) “Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). See also Fontaine v. United States, 411 U.S. 213, 215 (1973); Chizen v. Hunter, 809 F.2d 560, 563 (9th Cir. 1986); Reed v. United States, 441 F.2d 569, 572 (9th Cir. 1971). Thus, a reviewing court is entitled to credit a defendant's testimony at the change of plea hearing over his subsequent, conflicting affidavit. Cortez v. United States, 337 F.2d 699, 702 (9th Cir.1964).
Moreover, the prosecutor had represented to the Court during the discussions that “this defendant has made affirmative admissions that he did know that he had a prohibited status at the time.” (Id. at 13.) Neither Movant nor counsel voiced any objection to that representation, and Movant does not now suggest it was untrue. Indeed, in his Reply, Movant identifies a specific statement: “I knew better, I should have just paid the money to have my rights reinstated.” (Reply, Doc. 14 at 2.) Movant now attempts to explain it away by asserting the statements “[c]ame after the arrest and derived from disappointment by ignorance, ” which he attributes to his reliance on his hunting-guide license. (Id.) But that explanation is illogical given his admission that he “knew better.” Moreover, it does nothing to dispel the effects of his other admissions.
Moreover, Movant's reliance on his hunting-guide license is directly contradicted by his statement to agents in October 2017:
He also said that, as a licensed hunting guide in Arizona, he was very aware that he couldn't be in “full possession” of a firearm. Though he guided hunters that used firearms he made sure that he was never in “full possession” of any firearm. Even in guns stores he didn't handle firearms because he didn't have his gun rights restored.(CRDoc. 107-2 at 4, Invest. Report No. 5 at 3.)
Movant attempts to explain his failure to assert his Rehaif beliefs at the plea hearing by asserting that he had been “over talked, ” and he was “suffering from delirium.” (Reply, Doc. 14 at 2.) With regard to being “over talked, ” Movant points to a portion of the transcript where it appears Movant was cut off by the Court.
THE COURT: All right. Mr. McReynolds, do you understand that if this case were to go to trial, I might conclude on the basis of the law that in addition to proving that you knew you were a convicted felon, the government would also have to prove that you knew that because you were a convicted felon you could not legally possess a firearm? I might well require the jury to make that finding also. Do you understand that?
Was that not clear?
THE DEFENDANT: I understand it, Your Honor. Caught me a little off guard because I -
THE COURT: Well, the point is this: This is a new development in the law, as you might know…(Exh. A, COP R.T. 7/9/19 at 13-14.) If the discussion had ended there, the undersigned might conclude that Movant had wanted to voice his beliefs about his prohibited status. But it did not. Instead, the Court restated the question, gave Movant time to confer with counsel, and Movant still indicated his intent to proceed with the plea (id. at 14-15), and specifically admitted to knowing at the time he was “prohibited from possessing a firearm” (id. at 19).
With regard to “delirium, ” Movant points to a portion of the sentencing transcript where Movant had been kept up since 7:00 the day before sentencing. (Exh. B, Sent. R.T. 10/1/19 at 31.32.) But Movant offers no explanation how that induced his admissions at the change of plea some three months before.
Prejudice from Appellate Counsel - Movant does not suggest, and the undersigned does not find, a claim on direct appeal under Rehaif of such merit that the outcome of Movant's direct appeal would have been different had appellate counsel pursued a claim based on Movant's purported beliefs.
5. Conclusion re Ground 2
Movant has waived and procedurally defaulted on his substantive claim in Ground 2A. He fails to show ineffectiveness of trial counsel in his plea, and thus fails to avoid his waiver of Ground 2A, and fails to show merit in the ineffectiveness claim in Ground 2B. He fails to show ineffectiveness of appellate counsel to avoid his procedural default of Ground 2A. Accordingly, Ground 2A must be dismissed with prejudice, and Ground 2B must be denied.
C. GROUND 3 - INEFFECTIVE ASSISTANCE
1. Parties Arguments
In Ground 3, Movant argues that trial counsel was ineffective for: (A) proceeding to sentencing before resolution of the charges reasserted in the new indictment, rather than waiting for an acquittal on the original Count 12 relied on at sentencing; (B) failing to present evidence suggesting that the Bushmaster AR-15 weapon reflected in photographs supporting Count 12 was not the weapon identified in the indictment, and the owner of the weapon in the photos was present when they were taken; (C) setting the change of plea without Movant's knowledge; (D) providing incorrect advice on the penalties for the dismissed Lacey Act violations; and (E) advising Movant that a conviction on the charges in Count 11 was likely. (Motion, Doc. 8 at 7.)
Respondent addresses the first three of these claims as Grounds 3A (timing), 3B (Bushmaster), and 3C (change of plea). Respondent argues these claims are without merit. (Response, Doc. 12 at 14-17.) Respondent does not address Grounds 3D and 3E.
Movant replies, pointing to additional assertions of ineffectiveness of trial counsel in the instant proceeding and the second prosecution on the dismissed charges, and a conflict of interest for defense counsel. (Reply, Doc. 14 at 5-6.)
To the extent that Movant intends to raise new claims of ineffectiveness in his Reply, the undersigned does not address those claims. “The district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Moreover, to the extent these claims relate solely to the proceedings in the second case, they are irrelevant to Movant's conviction and sentence herein, and thus without merit.
2. 3A - Sentencing Timing
In Ground 3A, Movant argues trial counsel was ineffective for proceeding with sentencing in this case rather than awaiting a dismissal in the second case. (Petition, Doc. 8 at 7.)
Respondent argues that counsel's decision to proceed with sentencing was based on the reasonable hope that the remaining charges would be dismissed, and was not deficient performance, and in light of the dismissal did not prejudice Movant. (Response, Doc. 12 at 14.)
Movant does not reply.
At the change of plea, defense counsel explained:
I would like a trial date [on the charges in the 2019 case] set sometime after sentencing in light of the fact that the government is considering at least potentially dismissing the remaining charges as part of the sentence in this case.
I would point out that Count 1 is by far the most serious offense conduct in this indictment. I don't see the remaining counts will add much to the sentencing guidelines. So there's lot of, I guess, going on from the government's perspective outside of potentially what the sentence is that they may be considering, but our hope is that the government would at least consider if the sentence is satisfactory that perhaps it's not a good use resources to proceed to trial.(Exh. A, COP R.T. 7/9/19 at 23-24.) The undersigned finds that counsel had a strategic reason for proceeding with sentencing, and that the reason was reasonable, if not ultimately prescient.
Moreover, Movant fails to show any prejudice. Because of the dismissal of the other charges, the only relationship between the sentencing and the conclusion of the 2019 case was the use of the Count 12 conduct at sentencing. But even if Movant had been acquitted of Count 12 (or it had been dismissed) prior to sentencing, the court could still have relied upon the conduct in sentencing in this case. “We therefore hold that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997).
Ground 3A is without merit and must be denied.
3. 3B - Bushmaster Evidence
In Ground 3B, Movant argues trial counsel was ineffective for failing to present evidence suggesting that the Bushmaster AR-15 rifle reflected in one photograph with his scope attached was not the same rifle for which he was charged in Count 12. Movant further argues that the photos taken with his phone were taken with the owner being present. (Petition, Doc. 8 at 7.)
Respondent argues that counsel “vigorously contested” Movant's ownership of the Bushmaster, presented argument to justify the Bushmaster's presence at Movant's home, the lack of Movant's fingerprints, and to discuss the access of others to the area where the firearm was found. Respondent points to the Court's description at sentencing of its numerous bases for finding Movant possessed the Bushmaster. Respondent argues Movant provides no evidence to support his claims regarding the scopes, and that the existence of such evidence would not demonstrate trial counsel was not effective, or that he was prejudiced. (Response, Doc. 12 at 15-16.)
Movant does not reply.
In finding at sentencing that Movant had possessed the Bushmaster, the Court relied upon, inter alia, the conclusion that a photograph revealed a scope purchased by Movant being attached to the Bushmaster he was charged with having possessed. (Exh. B, Sent. R.T. 8/19/19 at 8-9.) Counsel did not address the scope in his sentencing memorandum (CRDoc. 106), or at the sentencing hearing. (Id. at 3-29.) But Movant proffers nothing to support his averment that “the scope purchased from Sportsmans Warehouse on July 1, 2017 is not the scope that is attached to firearm in Count 12.” (Motion, Doc. 8 at 7.) Nor does he proffer any support for his averment that “Counsel knew” of the discrepancy. (Id.)
Even assuming arguendo that Movant could support his contentions about the scopes and counsel's knowledge, he offers nothing to suggest that counsel performed deficiently in selecting which indicia of possession he chose to challenge. Of all the indicia identified by the Court, the specific scope attached to the rifle was arguably the least persuasive. Movant was not charged in the Indictment with possession of the scope. Even if Movant owned the scope, Movant might have loaned it to the owner, all without possessing the firearm. More persuasive were the facts that Movant was taking photographs of the gun in multiple locations, including his part-time residence, it was found in an area where other tenants asserted they were excluded and the contents belonged to Movant, some of the photographs were taken with co-defendant holding the weapon, and no third party made a claim to the weapon in the forfeiture proceedings. (See Exh. B, Sent. R.T. 8/19/19 at 8-9.) For these same reasons, the undersigned does not find a reasonable likelihood that, had counsel argued the differences in the scope, that the outcome would have been different, particularly given the applicable “preponderance of the evidence” standard applicable on this issue at sentencing. (Id. at 8.)
Ground 3B is without merit and must be denied.
4. 3C - Setting Change of Plea
In Ground 3C, Movant argues that trial counsel was ineffective for setting a change of plea hearing on October 25, 2019 in the second case (CR-19-8245), without obtaining Movant's consent. (Motion, Doc. 8 at 7.) Respondent argues a failure to show deficient performance or prejudice. (Response, Doc. 12 at 16-17.) Movant does not reply.
Movant offers no explanation how events in a separate (albeit related) case, after judgment was entered in this case, could possibly provide any reason to grant relief in this case. Movant's remedy, if any, would be in some other action.
Ground 3C is without merit and must be denied.
5. 3D & 3E - Lacey Act Violations
In Ground 3D, Movant argues trial counsel was ineffective for advising him that the penalty for Lacey Act violations was the same as U.S. Forest Service and National Park violation penalties. (Motion, Doc. 8 at 7.) In Ground 3E, Movant argues trial counsel was ineffective for advising Movant that a conviction on the Lacey Act charges in Count 11 was likely: “‘They are going to convict you of the deer they have photos containing metadata placing you in the park.'” (Motion, Doc. 8 at 7.) Respondent does not address this claim, and Movant does not reply.
Deficient Performance - The undersigned assumes arguendo that trial counsel performed deficiently with regard to his advice on the penalties for the Lacey Act violation, as alleged in Ground 3D.
Movant fails to proffer any deficiency with regard to the advice on Count 11 in Ground 3E. He does not suggest that the factual statements about the photos was incorrect, nor that the prediction of a conviction was an unreasonable one. “To establish a claim of ineffective assistance of counsel based on alleged erroneous advice regarding a guilty plea, a petitioner must demonstrate more than a ‘mere inaccurate prediction.'” Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (quoting Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.1986)).
Prejudice - Movant proffers no indication what prejudice he suffered as a result of the deficiencies alleged in Grounds 3D and 3E, particularly in light of the fact that the only charge he ever plead guilty to, or was convicted on (in this or the second case) was the single weapons conviction in this case. It might be assumed that Movant relies upon such advice to show that his plea on Count 1 was involuntary. However, given the fact and nature of the ultimate dismissal of the Lacey counts, the overwhelming evidence against Movant on Count 1, and the benefits of an acceptance of responsibility reduction at sentencing and hopes for ultimate dismissal of the remaining charges, the undersigned could not find Movant would have not proceeded with a guilty plea even if different advice had been given on the Lacey Act charges.
Grounds 3D and 3E are without merit and must be denied.
D. GROUND 4 - SEIZURE OF PHONE
In Ground 4, Movant argues the unlawful seizure of Movant's and his co-defendant's cellular phones “produced text messages and photos that were used in drastically [e]nhancing sentence, that derived from corrupt extraction reports.” (Motion, Doc. 8 at 8.) Respondent argues the claim was procedurally defaulted on direct appeal, waived by entry of his guilty plea, barred under the law of the case, and prohibited under Powell, and is without merit. (Response, Doc. 12 at 17-18.) Movant does not reply.
As with Ground 1, the undersigned concludes that this claim was waived by Movant's guilty plea and was procedurally defaulted on direct appeal. Movant fails to show trial counsel's ineffectiveness in advising him on his plea to avoid his waiver or appellate counsel's ineffectiveness to excuse his procedural default. With regard to any ineffectiveness related to this specific claim, Movant offers nothing to explain why the rejection of this claim in the 2019 case (see CR-19-8245, Doc. 142) was erroneous. Thus, Movant fails to show the claim had sufficient merit that trial and appellate counsel could not have foregone the claim as part of a reasonable tactical decision, and that failure to raise it was prejudicial.
Moreover, as with Ground 1, the claim arises under the Fourth Amendment exclusionary rule, and is now barred by Powell. Movant offers nothing to show he did not have a full and fair opportunity to mount the challenge in this case.
Finally, as with Ground 1, the undersigned finds the law of the case does not apply to the trial court's rejection of this claim because there is no appellate decision, and because the decision on it did not arise in this case, but in the separate (albeit related) 2109 case. Moreover, the undersigned again declines to address the exceptions to the law of the case doctrine.
Ground 4 must be dismissed with prejudice as waived and procedurally defaulted, and denied as barred by Powell.
E. OTHER ARGUMENTS OF INEFFECTIVE ASSISTANCE
In his Reply, Movant makes a series of arguments about the ineffectiveness of trial counsel in addition to those related to the substantive grounds for relief. Although Movant does not explicitly argue these as a reason to avoid his waiver, the undersigned considers them sua sponte in that regard, and concludes they are clearly without merit.
1. Ram Skull Warrant
Movant argues that counsel did not challenge the search warrant issued September 7, 2017 that resulted in the seizure of a ram skull. (Reply, Doc. 14 at 5.) Movant offers no explanation how a deficiency in challenging this evidence (which is presumably related to dismissed Count 10 charging a Lace Act violation regarding a “sheep skull”) rendered his plea solely as to Count 1 unknowing or involuntary. Given the circumstances of the limited plea and the ensuing dismissal in this prosecution of Count 10, the undersigned finds no prejudice.
Copies of this search warrant are attached as Exhibit 1 to the Government's Response (Doc. 98) to Movant's Second Motion to Suppress (Doc. 94) in the 2019 case (CR-19-8245).
Count 10 was not included in the indictment in the 2019 case, the only Lacey Act charges brought in that case related to the mule deer and deer. (CR-19-8245, Doc. 1, Indictment at Counts 4, 5.)
2. Collusion/Conflict of Interest
Movant argues that counsel did not challenge the September 7, 2017 search warrant (and instead attempted to broker a plea to Count 10) because of collusion with the prosecution to conceal that the search warrant had been issued by counsel's spouse, Magistrate Judge Michelle Burns. (Reply, Doc. 14 at 5-6.) Movant proffers nothing beyond conclusory assertions to show “collusion.” Nor does Movant show that trial counsel was affected by a conflict of interest. “Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). However, the Supreme Court's jurisprudence on conflicts of interest teaches that it is only an actual conflict of interest which gives rise to constitutional concern. “We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
The undersigned assumes arguendo that trial counsel was indeed married to Magistrate Judge Michelle Burns at the relevant times, and that a potential error in Judge Burns' issuance of the warrant would have amounted to a conflict of interest for counsel.
The undersigned assumes arguendo that trial counsel was aware of his Judge Burns' involvement with the warrant, even though the search warrant was issued in Flagstaff, Arizona, while Judge Burns is normally assigned to the District Court in Phoenix.
If the potential conflict of interest is brought “to the attention of the court, or the court knew or reasonably should have known about the conflict”, then prejudice is presumed if the trial judge fails to adequately address the conflict. United States v. Pergler, 233 F.3d 1005, 1010 (7th Cir. 2000); Holloway v. Arkansas, 435 U.S. 475, 484-91 (1978). On the other hand, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler, 446 U.S. at 348. This standard requires a defendant to show both an “actual conflict of interest” and an “adverse effect”.
No Actual Conflict Shown - An actual conflict of interest arises only where the facts are such that counsel's advice is actually affected. “'[A]n actual conflict of interest' meant precisely a conflict that affected counsel's performance.” Mickens v. Taylor, 535 U.S. 162, 171 (2002). “To show an actual conflict resulting in an adverse effect, [the petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.” Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir.2006) (quotations omitted).
Movant proffers nothing to show that a challenge to that specific search warrant could have been successfully made such that counsel would have had an actual conflict of interest. In the 2019 case, the Government advanced strong arguments in opposition to Movant's motion to suppress based on insufficiency of the evidence to support the warrant, including that any discovery was inevitable in light of the simultaneous service of a state court issued warrant. (CR-19-8245, Response, Doc. 99.) Indeed, Movant's efforts to challenge the search warrant in the 2019 prosecution were unsuccessful. (See CR-19-8245, Doc. Order 6/8/20, Doc. 107.) Thus, there mere happenstance that the warrant issuing judge was (purportedly) related to defense counsel does not, of itself, constitute an actual conflict.
No Adverse Effect Shown - Even if there was merit to such a motion, Movant offers nothing to show that it would have altered counsel's evaluation of Movant's chances at trial on Count 1 or his advice to Movant on his plea as to that count. Movant asserts that it would have altered Movant's decision to plead guilty. “Had any of highlighted facts been brought to my attention I would Not have accepted responsibility for prohibited possession of my Feoncé [sic] and daughters firearm.” (Reply, Doc. 14 at 6.) The defendant must prove he was prejudiced from counsel's ineffectiveness by demonstrating a reasonable probability that but for his attorney's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 58-59; Strickland v. Washington, 466 U.S. at 694. The Court must assess the circumstances surrounding the case to determine if the petitioner's allegation that he would have proceeded to trial is plausible. See United States v. Keller, 902 F.2d 1391, 1394-95 (9th Cir. 1990) (defendant failed to show prejudice because he entered plea as alternative to long trial, possible conviction on more serious charges and a longer sentence; additional advice was unlikely to affect his decision). Movant fails to explain why potential challenges to the sheep skull warrant would have made a difference in Movant's calculus on the plea he made. Movant's plea was made with the hope, if not the expectation, that the related charges would be dismissed. Further, Movant proffers no reason to not believe that any evidence discovered during the resulting search (including that related to Count 1) would have in any event been discovered under the simultaneous search under the state warrant.
3. Conclusion re Other Ineffectiveness Claims
None of Movant's other arguments of ineffective assistance of trial counsel provide a basis to avoid his waiver by his guilty plea.
F. PROCEDURAL ACTUAL INNOCENCE
The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added).
Movant does not make a claim of procedural actual innocence, but does argue that a failure to rule in his favor would be a “miscarriage of justice.” (Reply, Doc. 14 at 6.) Although not explicitly limited to actual innocence claims, the Supreme Court has not yet recognized a "miscarriage of justice" exception to exhaustion outside of actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).
A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. This standard is referred to as the “Schlup gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). Moreover, to pass through the Schlup gateway, not just any evidence of innocence will do; the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. (To distinguish such a showing from a claim to relief based on actual innocence, a Schlup claim is referred to as “procedural actual innocence, ” and a claim to relief as “substantive actual innocence.”)
Here, Movant makes no offer of new, credible evidence to show, his procedural actual innocence. At most, he offers in Ground 2 his own self-serving statements to support his claim for relief under Rehaif. That does not qualify as “reliable evidence” within the meaning of Schlup. He also argues in Ground 3B that the scope evidence relied upon at sentencing to was flawed, but he fails to offer any credible evidence (aside from his own conclusory assertions) to establish that claim. Moreover, such evidence is not relevant to his actual innocence of his conviction, only his sentence. And, for the reasons discussed in connection with Ground 3B, the undersigned concludes that even if the scope evidence were rejected, a reasonable judge could have nonetheless issued the same sentence.
Accordingly, Movant's procedurally defaulted claims in Grounds 1, 2A, and 4 must be dismissed with prejudice.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
It is true that the conclusions reached herein regarding the law of the case (in Section III(A)(4) and (D)) and regarding the application of Rehaif to a felon's mistaken belief in restoration of rights (in Section III(B)(4)) are debatable. However, the positions taken herein are in Movant's favor, and therefore do not provide a basis for Movant to appeal.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Grounds 1, 2A and 4 of Movant's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 8) be DISMISSED WITH PREJUDICE as waived and/or procedurally defaulted.
(B) If not dismissed with prejudice, Grounds 1 and 4 of Movant's Amended Motion to Vacate (Doc. 8) be DENIED as barred under Powell.
(C) That the balance of Movant's Amended Motion to Vacate (Doc. 8), including Grounds 2B, 3A, 3B, 3C, 3D, and 3E, be DENIED as without merit.
(D) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”