Opinion
16-cr-00262-BTM-5 19- cv-01763-BTM
06-03-2021
UNITED STATES OF AMERICA, Plaintiff, v. KARLA BOZARTH Defendant.
ORDER DENYING IN PART DEFENDANT'S § 2255 MOTION AND APPOINTING COUNSEL ON REMAINING CLAIM
ECF NO. 315
Honorable Barry Ted Moskowitz United States District Judge
Karla Bozarth (“Defendant”) has filed a motion to vacate, set aside, or reduce her sentence pursuant to 28 U.S.C. § 2255 based on claims of ineffective assistance of counsel and prosecutorial misconduct. (ECF No. 315.) For the reasons discussed below, the Court denies Defendant's § 2255 motion on all but one claim and defers ruling on the remaining claim.
I. BACKGROUND
On November 22, 2016, Defendant was convicted on nine counts: (1) eight counts of bringing aliens into the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and (2) one count of conspiracy to do the same. (ECF Nos. 219, 227.) On February 13, 2017, the Court denied Defendant's motions for a judgment of acquittal and for a new trial. (ECF Nos. 246, 250.) On July 10, 2017, the Court sentenced Defendant to 60 months in custody. (ECF Nos. 279, 281.) On August 30, 2018, the Ninth Circuit affirmed Defendant's conviction, rejecting Defendant's arguments that her conviction should be reversed based on (1) the indictment's failure to allege foreseeability under a Pinkerton theory of liability, and (2) insufficient evidence for counts four through nine. (ECF No. 310.)
Defendant filed the instant § 2255 motion on September 9, 2019, claiming ineffective assistance of counsel and prosecutorial misconduct. (ECF No. 315, “Mot.”) Defendant's ineffective assistance of counsel claim is based on allegations that her attorneys failed to adequately investigate and prepare her defense, interview or call certain witnesses, cross-examine or impeach certain witnesses, allow her to testify, and otherwise adequately represent her interests before, during, and after trial. (Id. at 5, 11-18.) Defendant's prosecutorial misconduct claim is based on allegations that the prosecutor elicited perjured testimony and made misleading statements in his closing argument. (Id. at 5, 19.)
On August 17, 2020, the Court granted a joint motion to release Defendant under 18 U.S.C. § 3582(c)(1)(A)(i), modifying her sentence to time served (33 months and 15 days) and 60 months of supervised release. (ECF Nos. 342, 346.)
The Court is concerned that its prior modification of Defendant's sentence to 60 months of supervised release is inconsistent with 18 U.S.C. § 3583(b)(2)'s three-year limitation for supervised release for Class C felonies, as defined in 18 U.S.C. § 3559(a)(3). The parties should be prepared to address this at the July 7, 2021 status hearing.
II. DISCUSSION
28 U.S.C. § 2255 provides that a prisoner in custody “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
A. Ineffective Assistance of Counsel Claim
“The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). Defendant did not raise any ineffective assistance of counsel claims on direct appeal. (See ECF No. 310.) However, “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).
A claim for ineffective assistance of counsel must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. “The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. “[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.
To establish 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Defendant's instant ineffective assistance of counsel claim is based on allegations that her trial attorney, Kenneth Troiano, failed to do the following: (i) review and use certain materials provided by Defendant, (ii) adequately consult with Defendant before and during the trial, (iii) call an expert witness on the difference between a broker and salesperson, (iv) adequately assert a buyer/seller rule defense, (v) request an alleged recording of a U.S. Coast Guard phone call, (vi) call certain witnesses, (vii) interview Pawel Wlodarczyk, (viii) adequately prepare certain defense witnesses, (ix) generally demonstrate in-court effectiveness; (x) cross-examine certain witnesses; (xi) ask for a mistrial; (xii) allow Defendant to testify; (xiii) impeach certain witnesses, and (xiv) challenge discrepancies in the indictment. Defendant also asserts an ineffective assistance of counsel claim based on allegations that her attorney on appeal, Andrew Nietor, failed to file ineffective assistance of counsel and prosecutorial misconduct claims during direct appeal. The Court addresses each in turn.
i. Failure to review and use certain materials provided by Defendant
Defendant alleges that her attorney failed to review and use certain materials provided by Defendant, including materials on her laptop, “yacht brokerage files, ” “previous yacht sales with San Diego Yachts, ” and “photos, videos, and phones.” (Mot. at 11-12.) However, Defendant merely identifies a generalized category of materials and fails to set forth specific facts that explain what particular information these materials would have provided, whether these materials would have been admissible evidence, and how the information contained in these materials would have affected the case. Instead, Defendant makes a conclusory statement that the materials “would have provided ample documentation, corroboration proof, that [she] was indeed only selling boats and doing exactly what was in the scope of yacht sales for all customers, and indeed not participating in any conspiracy act.” (Id. at 12.) This conclusory allegation is insufficient to support a finding of ineffective assistance of counsel. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). Therefore, this claim is DENIED.
ii. Failure to adequately consult with Defendant before and during trial
Defendant alleges that her attorney failed to adequately consult with her before and during trial. Defendant alleges that she visited her attorney's office three times, and then “all other consultation happened while we were at court either outside just before the court session, in the hall or in the courtroom itself.” (Mot. at 12.) However, Defendant fails to set forth specific facts that explain what information greater consultation with Defendant would have yielded, and how that information would have affected the case. Rather, Defendant makes conclusory allegations that her attorney's lack of consultation with her “gave off a very unprofessional appearance in court as [she] had to keep writing him notes to correct him when he was talking about a wrong boat, or point out how one of [her] witnesses could easily offer preponderance testimony against something the government's witnesses were claiming.” (Id.) These conclusory allegations are insufficient to support a finding of ineffective assistance of counsel. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). Therefore, this claim is DENIED.
iii. Failure to call an expert witness on the differences between a yacht broker and salesperson
Defendant alleges that her attorney failed to find and call a “professional yacht broker” as an expert witness to testify about “the difference between a broker and a salesperson, documentation required, off shore delivery issues, and just the general nature of giving clients rides, helping them with coast guard issues, hiring captains, and so on.” (Mot. at 13.) Defendant explains that “much of the trial there was confusion about the difference between a yacht broker and a yacht salesperson” and “also questions about of[f] shore deliveries, sea trials, and duties of sales and brokers of yachts.” (Id. at 24.) “[T]he presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense. Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995). Courts “have upheld the strategic choices of defense attorneys who refrain from using expert testimony at trial.” Gorham v. Thompson, 118 Fed.Appx. 141, 142 (9th Cir. 2004). Here, Defendant merely speculates, in a vague and conclusory fashion, that an expert witness would have clarified the duties and responsibilities of a yacht broker, and fails to explain how this clarification would have affected her case. To the extent Defendant implies that such testimony might have supported a potential argument that her activities were consistent with the activities of a typical yacht broker, the Government did not deny that Defendant was a yacht broker and engaged in legitimate yacht broker activities. Rather, the Government used this against Defendant, arguing that her status and activities as a yacht broker were not mutually exclusive with her involvement in the alien smuggling conspiracy, and that her experience as a yacht broker made it easier for the alien smuggling organization to obtain boats. (See ECF No. 267 at 46.) Defendant has not demonstrated that her counsel's performance was deficient when he did not call an expert witness to testify about yacht broker/salesperson duties and activities. See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (counsel is not required “to pursue every claim or defense, regardless of its merit, viability, or realistic chance for success”). Therefore, this claim is DENIED.
iv. Inadequate assertion of a buyer/seller rule defense
Defendant alleges that her attorney failed to adequately assert a “buyer/seller rule” defense. (Mot. at 12.) Defendant does not explain what the “buyer/seller rule” defense is or how it applies to her case, other than a conclusory statement that “it covered exactly what happened” and that her attorney “create[d] no defense other than a few attempts to purjer a witness.” (Id.) However, Defendant's attorney did assert the defense, arguing that Defendant was “strictly [in] a buyer/seller relationship” and simply because she sold a boat to someone in a conspiracy did not make her a member of that conspiracy. (ECF No. 267 at 55.) Defendant's attorney explained that under this principle, once Defendant sold a boat, she could not be held responsible for subsequent illegal activity involving the boat. (Id. at 81-82.) In support of this theory, Defendant's attorney emphasized that Defendant's “money was made not through how many people came into the United States, ” but rather “was made based on a sale commission that she made at the time of the [boat] sale.” (Id. at 55.) That this argument was ultimately unsuccessful does not by itself establish counsel's deficient performance. Gallegos v. Ryan, 820 F.3d 1013, 1025 (9th Cir. 2016) (courts “must be careful not to conclude that a particular act or omission of counsel was unreasonable simply because the defense was ultimately unsuccessful”). Further, the Government's conspiracy case did not rest solely on Defendant's sale of the boat Miss Behavin' to other members of the conspiracy, but also on evidence that Defendant physically transported two of the aliens to the Miss Behavin' before its departure, evidence that Defendant provided Pawel Wlodarcyzk as a crew member for the Miss Behavin', and emails connecting Defendant to other members of the conspiracy as well as other boats alleged to have been involved in alien smuggling by the other defendants. Not only did the Government's other evidence provide additional avenues to connect Defendant to the conspiracy beyond the sale of the Miss Behavin', the evidence also undermined Defendant's contention that she was merely in a buyer/seller relationship. Therefore, this claim is DENIED.
v. Failure to request an alleged recording of a U.S. Coast Guard phone call
Defendant alleges that her attorney failed to ask the Government to produce “the recording of the alleged phone call to the U.S. Coast [G]uard, which they did not use themselves or submit.” (Mot. at 12.) Defendant alleges that the recording was of a phone call she made to the U.S. Coast Guard, where she “was inquiring about a boat that had left Ensenada that belonged to a blind man, and a few of the people in the marina were assisting him into going to the states.” (Id.) According to Defendant, this phone call had “nothing to do with the Miss Behavin' vessel or any vessel with smugglers on it.” (Id. at 12-13.) Defendant makes a conclusory statement that this recording was “exculpatory evidence” because it “prove[s] that [she] do[es] indeed help out cruisers (the community word for people who have boats), which also entails calling the [C]oast [G]uard for assistance and guidance.” (Id. at 13.) Defendant fails to explain how a recording that was not related to the Miss Behavin'-or any other boat the Government alleged was part of the conspiracy-could be exculpatory. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) (“the Sixth Amendment has not been expanded to require an attorney to hunt down . . . marginally relevant and indirectly beneficial evidence”). Further, Defendant fails to provide sufficiently specific facts about the contents of the phone call, when the call occurred, and whether Defendant ever informed her attorney about its existence. Defendant has not demonstrated that her counsel's performance was deficient with respect to not requesting an alleged and unspecific U.S. Coast Guard phone call recording. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). Therefore, this claim is DENIED.
vi. Failure to call certain witnesses
Defendant alleges that her attorney failed to call certain “crucial” witnesses, specifically Eric Spaulding, Cathy Daly and Mike Slator. (Mot. at 14-15.)
a. Eric Spaulding
Defendant identifies Spaulding as “a yacht broker for the same company [she] worked for, San Diego Yachts.” (Id. at 14.) Defendant alleges that Spaulding could testify (i) about the difference between a yacht broker and a yacht salesperson, (ii) about the typical tasks of yacht brokers in Ensenada, Mexico, (iii) that Ted Jenzen worked for San Diego Yachts, and (iv) about the day Defendant met her co-defendants Juan Miguel Jimenez Ramirez and Maria Isela Esparza-Rivera and showed them the Desquite. (Id.) However, Defendant does not provide any evidence that Spaulding's testimony would have been helpful to her defense, other than her own speculative and self-serving statements. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (movant failed to demonstrate ineffective assistance based on counsel's failure to interview or call witness where movant provided “no evidence that this witness would have provided helpful testimony for the defense” other than the movant's own self-serving affidavit); see also United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit.”).
Further, Defendant fails to show how any of the subjects that she alleges Spaulding would have testified about would have materially helped her defense. Defendant fails to explain the relevance of any testimony about the differences between a yacht broker and a yacht salesperson or about the typical tasks of yacht brokers, as the Government did not dispute that Defendant was a yacht broker who engaged in typical and legitimate yacht broker activities. (See ECF No. 267 at 46.) In addition, neither the Government nor Jenzen denied that Jenzen worked for San Diego Yachts. (See Id. at 95.; ECF No. 264 at 179-180.) Further, the Government put forth evidence of Defendant's relationship with Juan Miguel Jimenez Ramirez and Maria Isela Esparza-Rivera when she represented to Agent Ryan Brooks that she was a “family friend” when she attempted to recover the Desquite. (ECF No. 265 at 22.) Defendant fails to explain how testimony detailing how Defendant first met Juan Miguel Jimenez Ramirez and Maria Isela Esparza-Rivera would counteract the Government's evidence that she subsequently participated in a conspiracy with them. Defendant has not demonstrated that her counsel's performance was deficient for not calling Spaulding as a witness. See Hendricks, 70 F.3d at 1040 (the Sixth Amendment does not require an attorney to put forth “marginally relevant and indirectly beneficial evidence”).
b. Cathy Daly
Defendant identifies Cathy Daly as the person she sold Eric Spaulding's boat to. (Mot. at 14.) Defendant alleges that in connection with selling Daly a boat, she “gave her a ride, helped her find a captain, helped her find someone to care for her new boat, take it to the yard for repairs and the initial inspection, and she even signed a statement giving me permission to do so.” (Id.) First, Defendant fails to provide sufficient evidence of what Daly would have actually testified about. See Dows, 211 F.3d at 486 (movant failed to demonstrate ineffective assistance based on counsel's failure to interview or call witness where movant provided “no evidence that this witness would have provided helpful testimony for the defense” other than the movant's own self-serving affidavit); see also Ashimi, 932 F.2d at 650 (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit.”).
Second, Defendant fails to demonstrate how any such testimony would have been helpful to her defense, as she does not allege any connection between Spaulding's boat and the other defendants, and the Government did not dispute that Defendant sometimes engaged in legitimate yacht broker activities. Defendant has not demonstrated that her counsel's performance was deficient for not calling Daly as a witness. See Hendricks, 70 F.3d at 1040 (the Sixth Amendment does not require an attorney to put forth “marginally relevant and indirectly beneficial evidence”).
c. Mike Slator
Defendant identifies Mike Slator as someone who “owned a charter business and could give ample testimony to the business aspect of boat charters.” (Mot. at 15.) He could also testify that Defendant “even bought fishing poles from him and he helped [Defendant] arrange for a fishing pole salesman to show [her] fishing poles for one of [her] clients, just one more extra act [she] provide[s] [her] clients.” (Id.) First, Defendant fails to provide sufficient evidence of what Slator would have actually testified about. See Dows, 211 F.3d at 486 (movant failed to demonstrate ineffective assistance based on counsel's failure to interview or call witness where movant provided “no evidence that this witness would have provided helpful testimony for the defense” other than the movant's own self-serving affidavit); see also Ashimi, 932 F.2d at 650 (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit.”).
Second, Defendant fails to demonstrate how testimony detailing the business aspects of boat charters or her specific interactions with Slator would be relevant or helpful to her defense. Defendant has not demonstrated that her counsel's performance was deficient for not calling Slator as a witness. See Hendricks, 70 F.3d at 1040 (the Sixth Amendment does not require an attorney to put forth “marginally relevant and indirectly beneficial evidence”).
For the reasons stated above, the claim of ineffective assistance of counsel for failure to call Spaulding, Daly and Slator is DENIED.
vii. Failure to interview Pawel Wlodarczyk
Defendant alleges that her attorney failed to interview Pawel Wlodarczyk, who “was a co-defendant that was on the Miss Behavin' when it was pulled over.” (Mot. at 15.) On November 14, 2016, the day before the trial began, the Government moved to dismiss Wlodarczyk with prejudice, which the Court granted. (See ECF No. 262 at 10-11.) During a February 13, 2017 post-trial motion hearing, Defendant's attorney admitted that after Wlodarczyk was dismissed with prejudice prior to the start of the trial, he “neglected to interview him at that point in time” and neither subpoenaed Wlodarczyk nor asked for a continuance of the trial to allow him sufficient time to interview him. (See ECF No. 269 at 18-20.)
The Government argued that Wlodarczyk was one of three co-defendants in the conspiracy who was caught on the Miss Behavin', and that Wlodarczyk worked for Defendant. (ECF No. 267 at 44-46.) Specifically, the Government argued that Defendant provided Wlodarczyk as a crew member for the Miss Behavin', that the other two co-defendants on board had no prior connection to Wlodarcyk, and that it would make no sense for those two co-defendants to allow Wlodarcyk on board and risk discovery of the aliens below deck unless Wlodarcyk was also part of the conspiracy. (Id.) The Government further argued that “[t]he link to [Defendant] is [Wlodarcyk]” because “[Wlodarcyk] was on the Miss Behavin', and his presence there establishes that the defendant knew because she would not have had her employee go on a boat if he didn't know, if she didn't know.” (ECF No. 267 at 85.) Wlodarcyk was therefore a key witness, and Defendant's attorney had a duty to at least attempt to interview Wlodarcyk so he could make an independent assessment and informed decision about any potentially exculpatory testimony Wlodarcyk could have provided. See Howard v. Clark, 608 F.3d 563, 571 (9th Cir. 2010) (holding that a failure to interview a key witness may lead to a finding of ineffective assistance, and explaining that an “attorney had a duty, at the very least, to apprise himself of [a witness's] account of [the relevant events], even if he would later have decided based on the information he obtained not to put [the witness] on the stand”). While Wlodarcyk was dismissed one day before the trial was scheduled to begin, if Defendant's attorney required additional time to interview or subpoena Wlodarcyk, he should have requested a continuance to allow sufficient time for him to do so. The Court holds that Defendant's counsel's failure to interview Wlodarcyk after his dismissal with prejudice constitutes deficient performance.
viii. Inadequate preparation of defense witnesses
Defendant alleges that her attorney inadequately prepared certain defense witnesses, specifically Richard Miller and Vickie Marriott. (Mot. at 15.)
a. Richard Miller
As to Richard Miller, Defendant alleges that her attorney only spoke to him “for about 10 minutes before he appeared in trial, [and] there were many more questions that [her attorney] could of asked had he taken proper preparations for the trial.” (Id.) At trial, Miller testified that Defendant was his yacht broker when he sold his yacht Fringe Benefits. (ECF No. 266 at 748-49.) The Fringe Benefits was never identified by the Government as a boat that was involved in the conspiracy. Defendant fails to explain specifically what further information Miller could have testified to and how that information would have been helpful to her defense. Defendant has not demonstrated that her counsel's performance was deficient with respect to preparing Miller as a witness. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
b. Vickie Marriott
As to Vickie Marriott, Defendant alleges that “[h]ad [her attorney] bothered to think through the consequences of telling [Marriott] to take her [calendar] with her to remind her of dates instead of just letting her say I don't know and telling her the dates himself a whole catastrophe could have been prevented.” (Mot. at 15.)
During Marriott's direct examination, she explained that she was the previous owner of the Miss Behavin' and used Defendant as her broker for its sale. (ECF No. 265 at 96-97.) When answering questions about the dates of the sale of the Miss Behavin', Marriott looked at and referenced her personal calendar, which was then marked as an exhibit. (See Id. at 102-103.) On Marriott's cross-examination, the Government elicited testimony that Marriott's calendar contained entries about the Miss Behavin' getting fueled on February 2, 2016-the same date of the alien smuggling event-even though the boat had already been sold and was no longer in Marriott's possession. (See Id. at 132-34.) During its closing, the Government argued to the jury that there was “some inconsistency” with Marriott's testimony and that “[t]here's something that's off when she has sold the boat, it's no longer hers, but she's making notes in her calendar . . . notes observing - after her baby is gone, released to the hands of Mr. Jenzen, she makes notes that they're fueling but doesn't make any notes about any of the other events.” (ECF No. 267 at 47.) Defendant alleges that had her attorney cautioned Marriott against taking her personal calendar with her to the stand, the Government “would not [have] tried to turn a simple event like writing down the fact [that] her boat she just sold went to get fueled into being accused of actually being part of the conspiracy.” (Mot. at 15.)
Defendant's attorney reasonably used Marriot's personal calendar to help elicit testimony about the details of the sale of the Miss Behavin' that Defendant brokered. That the Government used the calendar to cast doubt on Marriott's credibility as a defense witness does not establish that Defendant's attorney's performance was deficient. See Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995) (“Tactical decisions that are not objectively unreasonable do not constitute ineffective assistance of counsel.”); Magallanes-Damian v. I.N.S., 783 F.2d 931, 934 (9th Cir. 1986) (“It is not unusual or egregious for counsel to make tactical decisions that ultimately fizzle and redound to the client's detriment.”).
For the reasons set forth above, the claim of ineffective assistance of counsel for not better preparing witnesses Miller and Marriott is DENIED.
ix. General in-court ineffectiveness
Defendant alleges that her attorney demonstrated general in-court ineffectiveness with “numerous blunders, stutters, missteps, and sheer inexperience in even the simplest things like asking a witness a question.” (Mot. at 16.) Specifically, Defendant points out that during the testimony of Vickie Marriott, “[t]he court had to instruct [her attorney] on how to ask a question, how to lay a foundation and so on, ” that he was “so busy [texting] to see where the witnesses were at and how that was coming along that he didn't pay much attention in court, ” and that he allowed the Government to ask Marriott the same question over and over again without objecting to it. (Mot. at 17.) To the extent that Defendant has identified any non-tactical decisions that can be characterized as mistakes, Defendant has not identified anything serious enough to overcome the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689. This claim is DENIED.
x. Failure to cross-examine certain witnesses
Defendant alleges that her attorney failed to cross-examine two of the Government's witnesses, Martin Mata-Torres and Armando Zazueta-Vega. (Mot. at 16.)
a. Martin Mata-Torres
At trial, Mata-Torres testified that he was one of the aliens caught on board the Miss Behavin' and the circumstances in which he came on board the vessel. (ECF No. 263 at 93-106.) Defendant concedes that Mata-Torres' testimony did not involve her, but rather related to the other defendants. (Mot. at 16.) However, Defendant argues that her attorney's cross-examination could have further clarified that point. (Id.) Defendant has not demonstrated that her counsel's performance was deficient with respect to his reasonably limited cross-examination of Mata-Torres, whose testimony did not relate to Defendant. See Hensley, 67 F.3d at 185 (“Tactical decisions that are not objectively unreasonable do not constitute ineffective assistance of counsel.”).
b. Armando Zazueta-Vega
At trial, Zazueta-Vega testified that he was one of the aliens caught on board the Miss Behavin' and the circumstances in which he came on board the vessel. (ECF No. 264 at 11-22.) On cross-examination, Defendant's attorney confirmed that Zazueta-Vega had never seen Defendant. (Id. at 23.) Defendant does not allege what else her attorney should have asked during the cross-examination. Defendant has not demonstrated that her counsel's performance was deficient with respect to his reasonably limited cross-examination of Zazueta-Vega. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
For the reasons set forth above, the claim of ineffective assistance of counsel for failure to further cross-examine Mata-Torres and Zazueta-Vega is DENIED.
xi. Failure to ask for a mistrial
Defendant alleges that her attorney failed to ask for a mistrial based on interactions between certain members of the jury and a witness. (Mot. at 17.) On November 18, 2016, during the lunch break from trial, two jurors and two law enforcement agents-one of whom was a witness-were in the same elevator and had a brief interaction that was characterized as “small talk” about the presiding trial judge, the length of lunch, and the general fact that attorneys make arguments before the judge when the jurors are not in the courtroom. (See ECF No. 266 at 165-183.) Upon exiting the elevator, one of the jurors said to the witness and other agent “Thank you for your service.” (Id. at 171.) The Court permitted the attorneys to question the relevant jurors and agents, and then asked each juror whether the interaction would affect their ability to be fair and impartial to both sides of the case, which the jurors responded to in the negative. (Id. at 167-68, 172.) In addition, one juror had a limited interaction with one of the Government's attorneys during the same lunch break, where the attorney was talking with someone in the hallway, and as the juror walked past him, she gave him a sign to be quiet because she was a juror. (Id. at 173-176.) The juror said that she did not hear anything the attorney was saying, and that the interaction would not affect her ability to be fair and impartial to both sides of the case. (Id. at 174-75.) In addition, the same juror said that she briefly overheard a small part of a conversation between two witnesses speaking in the hallway, where one of the witnesses said that she was flustered on the witness stand and had to correct her testimony about whether it was her or her husband that had retrieved someone. (Id. at 185-86.) The juror said that she had not heard anything further of the conversation, and that she would not consider what she heard as evidence in the case. (Id. at 186-87.)
On November 21, 2016, prior to closing arguments, Defendant's attorney moved the Court to excuse only the juror who told the agents “Thank you for your service, ” which the Court granted. (ECF No. 267 at 5-6.) Before doing so, the Court specifically confirmed with Defendant that she had discussed the excusal of the juror with her attorney and that she was in agreement with it. (Id. at 5.) Given the content and length of the interactions, the jurors' representations that they would not be influenced by the interactions, and the dismissal of one of the jurors whose remarks the Defendant's attorney suspected might suggest bias in favor of the law enforcement witnesses, the Defendant's attorney made a valid tactical decision not to move for a mistrial, as it was reasonable to believe that any prejudice that might have resulted had been cured. See Downs v. Hoyt, 232 F.3d 1031, 1038 (9th Cir. 2000) (“Tactical decisions after consultation with the client are virtually unchallengeable.”); Williams v. McCarthy, 879 F.2d 866 (9th Cir. 1989) (“tactical decision did not amount to ineffective assistance of counsel simply because in hindsight a different decision might have been better”). Further, after the jury verdict, Defendant's attorney moved for both a judgement of acquittal and a new trial (ECF No. 246), which the Court denied (ECF No. 250). Had Defendant's counsel moved for a mistrial before the verdict, it would have been denied. Defendant has not demonstrated that her counsel's performance was deficient with respect to not moving for a mistrial. This claim is DENIED.
xii. Failure to allow Defendant to testify
Defendant alleges that her attorney failed to allow her to testify. Defendant admits that she “was notified [by the Court] of [her] right to testify and to make a decision after consulting with [her] lawyer.” (Mot. at 17; ECF No. 266 at 201.) Defendant further admits that she consulted with her attorney about testifying but that he “assured [her]” that “[they] were doing ok and [she] didn't need to testify.” (Id.)
“A defendant is presumed to assent to his attorney's tactical decision not to have him testify. . . . 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.” United States v. Pino-Noriega, 189 F.3d 1089, 1094-95 (9th Cir. 1999) (internal citations and quotations omitted). A defendant's waiver of their right to testify precludes an ineffective assistance of counsel claim. United States v. Nohara, 3 F.3d 1239, 1243-44 (9th Cir. 1993); see also United States v. Tran, 995 F.2d 235 (9th Cir. 1993) (finding no deficient performance of counsel where “defendant knew that she had a right to testify” but “her counsel failed to inform her that the decision to testify was personal, and could not be waived by counsel”). Because Defendant admits that she was aware of her right to testify, but was simply persuaded by her attorney not to do so, Defendant has not demonstrated that her counsel's performance was deficient with respect to advising her not to testify and allowing her to waive her right to testify. This claim is DENIED.
xiii. Failure to impeach certain witnesses
Defendant alleges that her attorney failed to impeach two of the Government's witnesses, Jose Aguilar-Flores and Ted Jenzen. (Mot. at 18.)
a. Jose Aguilar-Flores
The Government elicited testimony from Aguilar-Flores that he was one of the aliens on board the Miss Behavin' when it was caught, and that Defendant was the one who drove him from a restaurant to the Miss Behavin' in Ensenada. (See ECF No. 263 at 65-74.) During Aguilar-Flores' cross-examination, Defendant's attorney brought out the following: (i) a prior post-arrest statement that when he was driven to the Miss Behavin', he was picked up at a park, which was inconsistent with his trial testimony that he was picked up at a restaurant; and (ii) a prior post-arrest statement that the individual who drove him to the Miss Behavin' was Mexican, which was inconsistent with his trial testimony that the individual who picked him up was American. (See Id. at 87, 91.) Defendant does not explain why her attorney's impeachment measures were insufficient or how any additional impeachment measures would have affected the jury's credibility determination of Aguilar-Flores' testimony. See Smith v. Adams, 506 Fed.Appx. 561, 564 (9th Cir. 2013) (“The failure to take additional impeachment measures did not present a colorable claim of deficient performance”). Defendant has not demonstrated that her counsel's performance was deficient with respect to impeaching Aguilar-Flores.
b. Ted Jenzen
Defendant alleges that Jenzen's trial testimony contained “many discrepancies, [misstatements], lies, [and] changed statements.” (Mot. at 18.) Specifically, Defendant focuses on inconsistent statements from Jenzen about whether he worked at San Diego Yachts. (See id.) During Jenzen's cross-examination, Defendant's attorney brought out the following: (i) that Jenzen told numerous lies to the Coast Guard when the Miss Behavin' was caught, including that there were only three people on board, that the purpose of the trip was for an overnight boat delivery to Long Beach, that he had found the boat on Craigslist, and that the other people on the boat were volunteers; and (ii) that Jenzen had signed a plea agreement in connection with the case and was cooperating with the Government. (See ECF No. 264 at 119-126, 138-145.) During the closing argument, Defendant's attorney highlighted these aspects of Jenzen's testimony, as well as the Court's jury instructions regarding the caution in which the jury should treat Jenzen's testimony due to the plea agreement. (See ECF No. 267 at 55-60.) Defendant does not explain why her attorney's impeachment measures were insufficient or how any additional impeachment measures would have affected the jury's credibility determination of Jenzen's testimony. See Smith, 506 Fed.Appx. at 564 (9th Cir. 2013) (“The failure to take additional impeachment measures did not present a colorable claim of deficient performance”). Defendant has not demonstrated that her counsel's performance was deficient with respect to impeaching Jenzen or Aguilar-Flores. Therefore, this claim is DENIED.
xiv. Failure to challenge discrepancies in the indictment
Defendant alleges that her attorney “failed to challenge [d]iscrepancies on the indictment, ” which was based on “evidence compiled by manipulated testimony.” (Mot. at 19.) However, beyond this general and conclusory allegation, Defendant fails to identify any discrepancies in the indictment. Defendant has not demonstrated that her counsel's performance was deficient with respect to challenging the indictment. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). This claim is DENIED.
xv. Post-trial claims
Defendant alleges that her attorney during the appellate stage of her case, Andrew Nietor, failed to file ineffective assistance of counsel and prosecutorial misconduct claims on direct appeal. (Mot. at 11.) First, Defendant's counsel's performance was not deficient for not filing an ineffective assistance of counsel claim on direct appeal. See United States v. Tran, 995 F.2d 235 (9th Cir. 1993) (“In general, ineffective assistance of counsel claims are more properly reviewed in a habeas corpus proceeding.”); Massaro, 538 U.S. at 503 (“there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal”) (internal citations omitted). Second, as will be detailed below, Defendant's claims of prosecutorial misconduct are without merit. Therefore, Defendant's counsel's performance was not deficient for not filing prosecutorial misconduct claims on direct appeal. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“appellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal”); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does not constitute ineffective assistance.”). This claim is DENIED. //
xvi. Prejudice
Defendant's only allegation that supports a claim for ineffective assistance of counsel is the failure of her attorney to interview Wlodarcyk. However, beyond her own self-serving and conclusory statements, Defendant fails to provide any evidence of what Wlodarcyk would have testified to, and how that testimony would have been exculpatory or helpful to her defense. As the Court noted in a February 13, 2017 hearing on Defendant's motions for a judgment of acquittal and a new trial, “I don't see any prejudice. We don't know what Mr. Wlodarcyk would have even testified to if he was subpoenaed.” (ECF No. 269 at 19.) Without more than Defendant's own speculation about what Wlodarcyk would have testified to, Defendant has not established prejudice as to her counsel's failure to interview Wlodarcyk. See Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (prejudice cannot be established by “mere speculation”); See Dows, 211 F.3d at 486 (movant failed to demonstrate ineffective assistance based on counsel's failure to interview or call witness where movant provided “no evidence that this witness would have provided helpful testimony for the defense” other than the movant's own self-serving affidavit); see also Ashimi, 932 F.2d at 650 (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit.”).
The Court recognizes that it may be difficult for a pro se Defendant to obtain evidence as to what Wlodarcyk would have testified to in order to establish prejudice. Therefore, pursuant to 18 U.S.C. § 3006A(a)(2)(b), and in the interest of justice, the Court will exercise its discretion to appoint Federal Defenders of San Diego-who represented Defendant on her compassionate release motion- as counsel for Defendant for this aspect of the motion. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (“The district court has discretion to appoint counsel for indigents when it determines that the interests of justice so require”).
B. Prosecutorial Misconduct Claim
Defendant's prosecutorial misconduct claim is based on allegations that the prosecutor: (i) elicited perjured testimony, and (ii) made several misleading statements during closing argument. (See Mot. at 19). Defendant did not raise her prosecutorial misconduct claim on direct appeal. (See ECF No. 310). Therefore, her claim is procedurally barred. See Sanchez-Llamas, 548 U.S. at 350-51 (“The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review.”). Further, because the Court does not find that the Defendant received ineffective assistance of counsel, Defendant cannot show cause and prejudice or actual innocence to excuse her procedural default. See United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.”). Nonetheless, the Court will address Defendant's prosecutorial misconduct claims. “Reversal on this basis is justified only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial.” United States v. Sayakhom, 186 F.3d 928, 943 (9th Cir. 1999).
i. Presenting perjured testimony
To prevail on a claim of prosecutorial misconduct by use of perjured testimony, a defendant must show that “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Defendant generally alleges that Jenzen's testimony contained “many story changes” but only specifically alleges that Jenzen lied when he said he did not work at San Diego Yachts. (Mot. at 18-19.) During Jenzen's cross-examination, Jenzen testified that he was “never employed” at San Diego Yachts, but explained that he sat at a desk at the company and “show[ed] people boats if they had an interest in them.” (ECF No. 264 at 148, 151.) During redirect, Jenzen further clarified that he “wasn't a broker, [he] couldn't quote or negotiate anything. All [he] could do [was] show the boats and refer to printed information that they had on the web pages and brochures.” (Id. at 179-80.) When the prosecutor asked Jenzen “how was it that [he] came into that employment?”, Jenzen did not object to the use of the term “employment” and replied “[j]ust word of mouth around the marina.” (Id. at 180.) At best, Defendant merely identifies confusing testimony and inconsistencies related to the collateral matter of Jenzen's precise role and characterization of the work he did at San Diego Yachts. While Jenzen denied having a formal employment relationship as a broker with San Diego Yachts, he did not deny being in a general work relationship with San Diego Yachts. Consequently, Defendant's allegation does not support a claim for prosecutorial misconduct. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false.” Further, “perjured testimony [is] not cause for reversal if it was not directly related to the defendant's guilt or innocence”). Defendant has not established that the prosecutor elicited perjured testimony from Jenzen.
ii. Making a misleading closing argument
“During closing argument, prosecutors have considerable leeway to strike hard blows based on the evidence and all reasonable inferences from the evidence.” United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002). Defendant alleges that the prosecutor made the following misleading statements during his closing argument: (a) that the conspiracy involved “enormous profits”; (b) that Defendant had the aliens go onto and below deck of the Miss Behavin' and then she “sat around chatting”; (c) that Defendant was good friends with her co-defendants; (d) omitting that Wlodarzyk had been dismissed with prejudice and testifying on behalf of Wlodarzyk; and (e) suggesting that Marriott was part of the conspiracy. (Mot. at 19.)
a. Statement about “enormous profits”
Defendant alleges that the prosecutor “kept saying ‘enormous profits' i[n] spite of the fact that no person on the vessel actually claimed to pay anything at all, only that relatives arranged it or they were going to work it off.” (Mot. at 19.) During closing argument, the prosecutor stated “You will hear instructions about aiding and abetting and how the defendant is criminally responsible for helping these people bring those eight people to the United States, and you've already heard the evidence that it was all for enormous profits.” (ECF No. 267 at 37.)
During the direct examination of Jenzen, he testified that Defendant told him that for alien smuggling operations, typically “the captain got a thousand dollars per person, and the boat owner got $3,000 per person.” (ECF No. 264 at 45-46.) During the direct examination of Aguilar-Flores, he testified that he was told by one of the co-defendants that the trip on the Miss Behavin' would cost him $6,000. (ECF No. 263 at 69-70.) During the direct examination of Mata-Torres, he testified that he was told that the trip on the Miss Behavin' would cost him $4,500. (ECF No. 263 at 96.) The Government's argument that the alien smuggling conspiracy involved “enormous profits” was a reasonable inference that was tied to the evidence and within permissible limits. See United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (“Prosecutors can argue reasonable inferences based on the record.”). Defendant cannot establish a claim of prosecutorial misconduct based on this statement.
b. Statement that Defendant had the aliens go onto the boat and then “sat around chatting”
Defendant alleges that the prosecutor “added his own testimony to the trial during closing” when he said that Defendant “had [the aliens] get on the boat, and go below decks and that time was with co-defendant's talking” and that Defendant “sat around chatting.” (Mot. at 19.) Defendant alleges that “[n]o witness testified to this at all.” (Id.) During closing argument, the prosecutor stated that Aguilar-Flores and another individual were driven by Defendant to the Miss Behavin' from a restaurant “[a]nd she led them down to the docks, had them get onto the boat, and then go below-decks. And at that time, [Aguilar-Flores] was above-decks with Mr. Ramirez, Mr. Jenzen, Mr. Wlodarczyk. They sat around and talked.” (ECF No. 267 at 39.) The prosecutor also stated
I anticipate that the defendant's argument was “Gee, I didn't know what was going on. I didn't know what they were doing. I didn't know that the people who I brought to the boat and then went down below the boat while I sat around chatting were undocumented aliens.” Use your common sense and evaluate the evidence as a whole that under the circumstances, the defendant knew exactly what she was doing.”(Id. at 46.)
During the direct examination of Aguilar-Flores, he testified that Defendant “directed us to the boat, ” that “she was in front” of him as they went to the boat, and once at the boat, “we just got in, and then we went down - down below.” (ECF No. 263 at 76.) During the direct examination of Jenzen, he testified that before the Miss Behavin' departed, he went to get oil for the boat, and when he returned, there were two aliens already on board sitting in the “cockpit dinette” and “[Defendant], Miguel, and Pawel” were on the boat. (ECF No. 264 at 103-104.) The prosecutor's statement that Defendant led some of the aliens to the Miss Behavin' is consistent with the testimony of Aguilar-Flores. Further, while there was no direct evidence that Defendant was chatting with her co-defendants on the boat, it was a reasonable inference for the prosecutor to state that. See Tucker, 641 F.3d at 1120 (“Prosecutors can argue reasonable inferences based on the record.”).
However, even if the prosecutor's statement was not the product of a reasonable inference and is construed as a misstatement of the evidence, the misstatement was minor and did not materially affect the fairness of the trial. See Sayakhom, 186 F.3d at 943 (“Reversal on [prosecutorial misconduct] is justified only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial”). “[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal citation and quotations omitted). To the extent that the prosecutor's statement that Defendant chatted with her co-defendants prior to the departure of the Miss Behavin' suggested that Defendant was involved in the conspiracy, it was merely cumulative of the evidence presented at trial of Defendant's involvement, including evidence that Defendant helped sell the Miss Behavin' to her co-defendants, physically transported two of the aliens to the Miss Behavin', provided Pawel Wlodarcyzk as a crew member for the Miss Behavin', and participated in other alien boat smuggling operations with her co-defendants.
Further, the Court twice instructed the jury that the attorneys' statements could not be considered as evidence: (1) prior to the closing arguments, the Court instructed the jury that “you and you alone are the judges of the facts, and you will determine what the evidence has shown, and if your recollection is different from the way the lawyer has stated it, it is your recollection that controls”; and (2) after the closing arguments, the Court gave jury instructions that stated “arguments and statements by lawyers are not evidence…. What they have said in their opening statements, closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.” (ECF No. 267 at 35; ECF No. 221-5 at 12.) Therefore, to the extent there was any prejudice from the prosecutor's statement, it was cured by the Court's multiple instructions.
Defendant cannot establish a claim of prosecutorial misconduct based on this statement.
c. Statement that Bozarth was good friends with her co-defendants
Defendant alleges that “the prosecutor mention[ed] an e-mail that stated that [she] was good friends with the co-defendant” but “no e-mail anywhere mentions anything about friendship.” (Mot. at 19.) During closing argument, in discussing Defendant's involvement in trying to retrieve the Desquite, the prosecutor stated that “you heard and read along on the video the e-mail string. What happened? Well, [Defendant] calls up Mr. Brooks and says, ‘Hey, I've got a family friend that wants her boat back. Can you help out?' And then you have the contents of that e-mail.” (ECF No. 267 at 41.)
During the direct examination of Brooks, he testified that during an October 6, 2015 phone call with Defendant, she “introduced herself to [him] as a family friend of Daniela Ramirez and her aunt Maria [Isela Esparza-Rivera] and told [him] that she was going to assist in trying to get the vessel returned.” (ECF No. 265 at 22.) First, Defendant misstates the prosecutor's statement during closing argument, which did not reference any emails mentioning the word “friendship” but rather pointed to a phone call where the Defendant said that she was a “family friend” of one of her co-defendants. Second, the prosecutor's statement was tied to the evidence and within permissible limits. See Tucker, 641 F.3d at 1120 (“Prosecutors can argue reasonable inferences based on the record.”). Defendant cannot establish a claim of prosecutorial misconduct based on this statement.
d. Omitting that Wlodarzyk had been dismissed with prejudice and testifying on behalf of Wlodarzyk
Defendant alleges that the prosecutor “mention[ed] [Wlodarzyk] . . . without . . . pointing out the circumstances like [Wlodarzyk] had been dismissed with prejudice” and that the prosecutor “testif[ied] for [Wlodarzyk] falsely and falsely accus[ed] [him] of being in the conspiracy even after he was dismissed.” (Mot. At 19.) During closing argument, with respect to Wlodarzyk, the prosecutor argued that Jenzen testified that “he didn't really have that much contact with [Wlodarzyk]” and that the only other person who had a connection to [Wlodarzyk was] the defendant, and that is directly contrary to the nature of conspiracy. You would have some guy who had no idea what was going on with . . . nine people below-deck . . . and have the possibility that Mr. Wlodarzyk would become a witness and see behind the veil of secrecy? No. Use your common sense. (ECF No. 267 at 45.) During rebuttal closing argument, the prosecutor continued to argue that
[t]he link to [Defendant] is [Wlodarzyk]. [Wlodarzyk] was on the Miss Behavin', and his presence there establishes that the defendant knew because she would not have had her employee go on a boat if he didn't know, if she didn't know. And if he didn't know and she didn't know - and I'm not going to yell it again - Miguel or Ted would have said, ‘No. He's not coming here. We're doing something secret.'(Id. at 85.)
Contrary to Defendant's assertion, the record demonstrates that the prosecutor did not testify on behalf of Wlodarzyk, but rather used Jenzen's testimony to argue why Wlodarzyk, and in turn, Defendant, had to have been participants in the conspiracy. The prosecutor's argument was tied to the evidence and within permissible limits. See Tucker, 641 F.3d at 1120 (“Prosecutors can argue reasonable inferences based on the record.”). Further, it was not misleading for the prosecutor not to mention that Wlodarzyk had been dismissed with prejudice, as that fact was not relevant to Defendant's case. Defendant cannot establish a claim of prosecutorial misconduct based on the prosecutor's references to Wlodarzyk in his closing argument.
e. Statement suggesting Marriott was a co-conspirator
Defendant alleges that the prosecutor “twisted Mrs. Marriott's testimony to insinuate that she was actually part of the conspiracy as well.” (Mot. at 19.)
During closing argument, the prosecutor argued that a number of defense witnesses were “obviously good friends with” Defendant and had “an interest and a bias in favor of their friend.” (ECF No. 267 at 47.) But
[t]he only one that might have some inconsistency is Ms. Marriott, who was involved in buying - or selling the Miss Behavin' during the sea trials. There's something that's off when she sold the boat, it's no longer hers, but she's making notes in her calendar . . . notes observing - after her baby is gone, released to the hands of Mr. Jenzen, she makes note that they're fueling but doesn't make any notes about any of the other events. But evaluate the character witness and the testimony of those who bought or used [Defendant's] services in light of all the evidence.(Id.)
To the extent that the prosecutor's statement can be interpreted as containing an insinuation that Marriott was part of the conspiracy, the record indicates that the prosecutor referenced the inconsistencies and oddities in Marriott's testimony to undermine her credibility as a character witness for Defendant. The prosecutor's argument was permissible. See Tucker, 641 F.3d at 1120 (“A prosecutor may express doubt about the veracity of a witness's testimony.”); Hermanek, 289 F.3d at 1100 (“During closing argument, prosecutors have considerable leeway to strike hard blows based on the evidence”). Defendant cannot establish a claim of prosecutorial misconduct based on this statement.
Therefore, Defendant's § 2255 motion based on prosecutorial misconduct is DENIED.
C. CONCLUSION AND ORDER
For the foregoing reasons, the Court DENIES IN PART and DEFERS IN PART Defendant's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Specifically, the Court defers the motion as to Defendant's ineffective assistance of counsel claim for her attorney's failure to interview Wlodarzyk. Federal Defenders of San Diego is appointed for that claim.
As to the remainder of Defendant's motion, the Court denies it without a hearing as “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (to justify a hearing, defendant must “make specific factual allegations which, if true, would entitle him to relief”). Defendant is denied a certificate of appealability as to these claims, as she has not “made a substantial showing of the denial of a constitutional right.” See 18 U.S.C. 2253(c)(2).
The Court will hold a status hearing on July 7, 2021 at 3:30 p.m.
IT IS SO ORDERED.