Opinion
08-21-2013
Merced Lopez Ramirez, Petitioner, v. United States of America, Respondent.
ORDER RE: MOTION UNDER
28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE [CV 1]
Currently before the Court is Merced Lopez Ramirez's ("Defendant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [CV 1]. Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: Defendant's Motion is DENIED.
Unless identified as a docket entry in Petitioner's civil case by "CV," court docket citations refer to entries in Petitioner's criminal case, CR 96-00847, and not Petitioner's civil case, CV 13-03293.
I. BACKGROUND
In October 1997, a jury convicted Defendant of conspiracy to manufacture and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 (count one), and two counts of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (counts three and four) [249]. This Court sentenced Defendant to 365 months of imprisonment for each count of conviction, to be served concurrently, followed by a ten-year period of supervised release [315, 316].
Defendant challenged his conviction and sentence on direct appeal [321]. While Defendant's appeal was pending, the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), which rendered the federal sentencing guidelines advisory, and the Ninth Circuit decided United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005), which instituted a limited remand procedure to determine on direct appeal whether a district court had plainly erred in sentencing a defendant under the formerly mandatory guidelines. The Ninth Circuit rejected each of Defendant's claims on appeal, with the exception of the claim that his case needed to be remanded to this Court in order to account for the fact that Booker and Ameline were decided during the pendency of his appeal [565].
On January 25, 2010, this Court conducted a hearing pursuant to the Ninth Circuit's Ameline remand and imposed upon Defendant the same sentence that the Court had previously imposed [621, 622]. Defendant appealed his sentence once more, this time to determine whether the Court failed to comply with Ameline by denying Defendant the opportunity to submit his position in writing [623]. The Ninth Circuit affirmed this Court's decision on May 31, 2012 [652].
Defendant, proceeding pro se, filed the present Motion on May 8, 2013, seeking to vacate, set aside, or correct his conviction and sentence [CV 1]. Defendant essentially argues that his conviction should be vacated because his Fourth, Fifth, and Sixth Amendment rights were violated throughout the course of his trial and because the prosecution committed fraud upon the Court.
II. LEGAL STANDARD
A federal prisoner seeking post-conviction relief may file a motion in federal court pursuant to 28 U.S.C. § 2255 to have his sentence vacated, set aside, or corrected. A valid Section 2255 claim must allege that the prisoner's sentence is (1) in violation of the Constitution or laws of the United States, (2) imposed by a court without jurisdiction, (3) in excess of the maximum authorized by law, or (4) otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). Under the procedural default doctrine, when a Section 2255 movant could have raised a claim on direct appeal but failed to do so, that claim is deemed waived, and relief under Section 2255 is barred, unless the movant demonstrates (1) actual innocence or (2) cause for failure to raise the claim and actual prejudice resulting from such failure. U.S. v. Braswell, 501 F.3d 1147, 1149-50 (9th Cir. 2007).
A district court may not deny a Section 2255 motion without a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). To justify an evidentiary hearing, the movant must go beyond mere conclusory statements and make "specific factual allegations which, if true, would entitle him to relief." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). "[N]o hearing is required if the allegations, 'viewed against the record, either fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.'" Shah v. United States, 878 F.2d 1156, 1158 (9th Cir. 1989) (quoting Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985)). "An evidentiary hearing is unnecessary when the court has sufficient facts before it to fully and fairly rule on the merit of claims." United States v. Hernandez, No. 07cv2355 J, No. 96cr1262 J, 2009 WL 1178664 at *2 (S.D. Cal. May 1, 2009) (citing Blackledge v. Allison, 431 U.S. 63, 74-81 (1977)).
If a court denies a movant's Section 2255 motion, the court must either issue a certificate of appealability under 28 U.S.C. § 2253© or state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b). The standard for issuing a certificate of appealability is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2255(c)(2). To make a substantial showing, the applicant must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 475 (2000) (internal quotation marks omitted).
Specifically, when a district court denies a Section 2255 Motion on procedural grounds, a certificate of appealability should issue if the applicant shows that (1) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and that (2) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." United States v. Plaza-Uzeta, No. CV-09-1231-PHX-GMS, 2010 WL 6826540 at *18 (D. Ariz. Nov. 18, 2010), report & recommendation adopted, No. CV-09-1231-PHX-GMS, 2011 WL 2600486 (D. Ariz. June 30, 2011). Alternatively, when a district court rejects constitutional claims on the merits, a certificate of appealability should only issue if the applicant demonstrates that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.
III. ANALYSIS
Beginning with Defendant's claim that his Fourth Amendment rights were violated, the Court finds that the grounds upon which Defendant bases this claim are procedurally barred for purposes of this Motion. Defendant challenges his conviction and sentence on the ground that the search of his residence on August 10, 1996, was a violation of the Fourth Amendment because the warrant upon which the search was predicated was fabricated and never existed. However, in support of its Opposition to this Motion, the Government produced a copy of the warrant itself, which was signed by a magistrate judge the day before Defendant's apartment was searched. See Opp'n, Ex. A. Moreover, Defendant already challenged the validity of the search warrant on direct appeal, and the Ninth Circuit rejected this argument. See United States v. Ramirez, 196 Fed. Appx. 538, 538-39 (9th Cir. 2006). Because "Section 2255 may not be invoked to relitigate questions which were or should have been raised on direct appeal from the judgment of conviction" (Hammond v. United States, 408 F.2d 481, 483 (9th Cir. 1969)), Defendant is barred from challenging the search warrant once again in this Motion.
As to Defendant's claim that his arrest on August 9, 1996, violated the Fourth Amendment because he was not arrested pursuant to an existing arrest warrant, Defendant is barred from raising this challenge as well. "The proper manner in which to question the arrest procedure is either by a motion before sentence or on appeal." Alaway v. United States, 280 F. Supp. 326, 332 (C.D. Cal. 1968). See also United States v. Koptik, 300 F.2d 19, 22 (7th Cir. 1962); Scherk v. U.S., 242 F. Supp. 445, 446 (N.D. Cal. 1965). The Court notes that Defendant already raised this issue prior to his sentencing (see Mot., Ex. 1) and that Defendant failed to re-raise the challenge on direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003) ("[C]laims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."). Because Defendant has not established that this challenge could not have been raised on direct appeal, Defendant has waived his right to raise it now. See United States v. Coppola, No. 2:03-cr-0010-LRH-PAL, 2010 WL 5175043 at *2 (D. Nev. Dec. 15, 2010).
Turning to the claim that Defendant's Fifth Amendment rights were violated because the Government renumbered the charges against him in a redacted, revised indictment and in the jury instructions that were presented to the jury during trial, the Court considers Defendant's arguments to be without merit. Defendant is correct in that the Government initially renumbered the counts of the redacted First Superseding Indictment, which was to be used at trial and submitted to the jury during deliberations, so that the counts were consecutively numbered as one, two, and three rather than one, three, and four. See Mot., Ex. 12. However, the Court informed the jury just prior to deliberations that the counts in the First Superseding Indictment had been misnumbered and that where the jury had been instructed as to counts one, two, and three, the counts "should technically be one, three and four." See Mot., Ex. B, 166:14-20. Additionally, the counts included on the verdict form that the jury received for Defendant were properly numbered one, three, and four, not one, two, and three. Id. at 166:9-13. Therefore, the Court finds that Defendant was not improperly convicted on erroneous counts. Moreover, this claim is procedurally barred because Defendant failed to raise it on direct appeal, and he has not established that he could not raise it during his appeal. See Massaro, 538 U.S. at 504.
Defendant argues further that his sentence should be vacated, set aside, or corrected due to the ineffective assistance of pre-trial attorney Phillip Deitch and trial attorney John P. Loughman. As opposed to Defendant's previously addressed claims, "[c]laims of ineffective assistance of counsel in a federal prosecution need not be exhausted on direct appeal, but are properly brought in the first instance in a [Section 2255 motion]." Plaza-Uzeta, 2010 WL 6826540 at *4. It is well established that in claiming ineffective assistance of counsel, a convicted defendant must show that (1) counsel's performance was so seriously deficient "that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" (Strickland v. Washington, 4 66 U.S. 668, 687 (1984)), and (2) counsel's "deficient performance prejudiced the defense" (Id.). "The Court need not address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong." United States v. Valdez-Santos, No. 2:02-cr-0104 LKK AC, 2013 WL 3803957 at *2 (E.D. Cal. July 19, 2013). See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
Here, the Court need not address the first prong of the Strickland test with respect to Defendant's ineffective assistance of counsel claims because Defendant has failed to satisfy the second prong of showing how counsel's performances, if deficient at all, prejudiced Defendant's defense. In order to demonstrate actual prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. See also United States v. Berardi, No. SACV-10-412-AG, 2011 WL 1334424 (C.D. Cal. Apr. 5, 2011). In other words, the question that a court must ask in determining whether the second Strickland prong has been satisfied is "whether there is a reasonable probability that, absent [counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695. See also Luna v. Cambra, 306 F.3d 954, 961 (9th Cir. 2002). Although Defendant makes various assertions as to how he believes attorneys Deitch and Loughman were deficient in serving him as counsel, he does not specifically address how his defense was prejudiced, if at all, by such deficiencies. The only statements that Defendant makes that might be construed as falling under the second Strickland prong are his statements that (1) attorney Deitch's conduct "tainted the integrity of representation process [sic], failing entirely to subject the prosecutor's case to a meaningful adversarial testing" (P. & A. p. 21), and (2) attorney Loughman's deficient work "allowed the prosecution team to convict defendant on fabricated evidence" (Id. at p. 22). These vague assertions, without more, are insufficient to show that, but for counsel's alleged deficiencies, there is a reasonable probability that the outcome of Defendant's case would have been different. Furthermore, with regard to Defendant's allegation concerning "fabricated" search and arrest warrant evidence, these issues have already been addressed supra. Accordingly, the Court should find that Defendant's Motion cannot be granted on Defendant's ineffective assistance of counsel claims as presented to the Court.
As to Defendant's claim of fraud on the court, the Court is unable to locate any Ninth Circuit criminal case entertaining such a claim raised in the context of a Section 2255 Motion. See U.S. v. Armstrong, No. CR 94-0276 PJH, C 09-2243 PJH, 2012 WL 712126 at *18 (N.D. Cal. March 5, 2012). Claims of fraud on the court are generally brought in civil cases via motions pursuant to Federal Rule of Civil Procedure 60(b). However, even if Defendant is permitted to proceed with this claim in the current Motion, the Court finds that Defendant is still not entitled to the relief he seeks. As proof of fraud on the court, Defendant cites to the Government's introduction of "fabricated evidence" during trial and modification of the First Superseding Indictment. As to Defendant's allegation regarding "fabricated evidence," Defendant does not clarify within the context of this claim to what evidence he is referring. To the extent that Defendant is referring to the arrest and search warrants that are otherwise at issue in his Motion, the Court has already addressed these issues supra. With regard to modification of the First Superseding Indictment, this, too, has been addressed supra. Accordingly, the Court should find that Defendant's allegations to not give rise to a successful claim of fraud on the court, and, therefore, Defendant's Motion cannot be granted upon this ground.
In light of the aforementioned, the Court finds that Defendant's Motion can be decided without a hearing because the Motion, the record, and applicable law affirmatively show the factual and legal invalidity of Defendant's position. See Shah, 878 F.2d at 1158. Thus, the Court declines to hold an evidentiary hearing in this matter.
Moreover, to the extent that the Court is denying Defendant's Motion on procedural grounds, the Court finds that "jurists of reason" would not find it debatable whether the Court was correct in its procedural rulings. See Plaza-Uzeta, 2010 WL 6826540 at *8. To the extent that the Motion is being rejected on the merits, the Court finds that Defendant's constitutional claims are without merit under the reasoning set forth herein. See 28 U.S.C. § 2253(c)(2). Accordingly, the Court DENIES issuance of a certificate of appealability in this matter.
III. CONCLUSION
For the reasons stated above, the Court DENIES Defendant's Motion under 28 U.S.C. § 2255 because the grounds upon which Defendant bases his Motion are factually and legally invalid. Furthermore, the Court finds that an evidentiary hearing for this Motion is not warranted and DENIES issuance of a certificate of appealability.
IT IS SO ORDERED.
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HONORABLE RONALD S.W. LEW
Senior, U.S. District Court Judge