Zepeda v. United States

Full title: Damien Miguel Zepeda, Movant/Defendant v. United States of America…

Court: United States District Court, District of Arizona

Date published: Nov 1, 2021

CV-17-1229-PHX-ROS (JFM) (D. Ariz. Nov. 1, 2021)

Opinion

CV-17-1229-PHX-ROS (JFM) CR-08-1329-PHX-ROS

11-01-2021

Damien Miguel Zepeda, Movant/Defendant v. United States of America, Respondent/Plaintiff.

James F. Metcalf United States Magistrate Judge

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 a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). 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

Movant and co-defendants were indicted in the District of Arizona on November 12, 2008 for events occurring within the confines of the Ak-Chin Indian Reservation on oar about October 25, 2008. The Indictment alleged that Movant was upset with a former girlfriend [SA] and her male roommate [DP]. Movant announced his intent to “kick some ass” with regard to DP and set out with co-defendants who were armed and went to the home of SA and DP. Previously, and in the car, Movant and co-defendants were drinking alcohol and/or smoking marijuana. While co-defendants waited with a shotgun, Movant argued with SA and hit her in the head with a handgun. When SA began returning to the home, Movant began firing a handgun at JD. DP tried to protect JD and was shot several times. (CR Doc. 3, Indictment.) (Filings in the underlying criminal case, CR-08-1329-PHX-ROS, are referenced herein as “CR Doc. .”)

B. PROCEEDINGS AT TRIAL

Movant was charged with:

Count 1 - conspiracy to commit assault with bodily injury and assault with a dangerous weapon;

Count 2 - assault of DP;

Count 3 - possession/use of a firearm in commission of crime of violence, i.e. Count 2;

Count 4 - assault of DP with a dangerous weapon;

Count 5 - possession/use of a firearm in commission of crime of violence, i.e. Count 4;

Count 6 - assault of SA with a dangerous weapon;

Count 7 - possession/use of a firearm in commission of crime of violence, i.e. Count 6;

Count 8 - assault of JD with a dangerous weapon;

Count 9 - possession/use of a firearm in commission of crime of violence, i.e. Count 8.

(CR Doc. 3, Indictment.)

Movant was appointed CJA counsel Mitchell. After failed plea negotiations (CR Doc. 68, M.E. 6/30/09), Movant proceeded to trial on October 20, 2009. (CR Doc. 95, M.E. 10/20/09.)

After six days of trial, Movant was found guilty as charged. (CR Doc. 108, ME. 10/29/09.)

On March 24, 2010, Movant was sentenced to a combined term of 1, 083 months (90.25 years), consisting of 60 months on Count 1, 63 months each on Counts 2, 4, 6, and 8, 120 months on Count 3, and 300 months each on Counts 5, 7, and 9. Counts 1, 2, 4, 6, and 8 were concurrent, Count 3, 5, 7 and 9 were consecutive. (CR Doc. 165, Sentence.)

C. PROCEEDINGS ON DIRECT APPEAL

Movant filed a direct appeal (CR Doc. 167). On January 18, 2013, the Ninth Circuit issued an opinion on certain claims, United States v. Zepeda, 705 F.3d 1052 (9th Cir. 2013) and an unpublished decision was issued on a variety of other claims. United States v. Zepeda, 506 Fed.Appx. 536 (9th Cir. 2013).

The opinion was subsequently withdrawn, 733 F.3d 816 (9th Cir. 2013), and on January 18, 2013, a panel of the Ninth Circuit issued a superseding Opinion rejecting various claims, but reversing and remanding on the basis of a lack of evidence of Movant's tribal bloodline. United States v. Zepeda, 738 F.3d 201 (9th Cir. 2013).

Rehearing en banc was granted solely on the sufficiency of the evidence of tribal bloodline and reasonableness of the sentence, and in an en banc Opinion issued July 7, 2015, the Ninth Circuit Court of Appeals affirmed Movant's convictions and sentences, finding the evidence of bloodline sufficient, and his sentence reasonable (“the only sentence the district court could impose”). United States v. Zepeda, 792 F.3d 1103, 1116 (9th Cir. 2015). (CR Doc. 222, Opinion.) That decision adopted panel's decision on Movant's other claims, citing both the published superseding panel opinion and the unpublished panel decision. Id. at 1109.

As a result, the various claims in Movant's direct appeal were finally decided in one of the following: the unpublished decision, 506 Fed.Appx. 536; the superseding panel opinion, 738 F.3d 201; and the limited opinion on rehearing en banc, 792 F.3d 1103.

The mandate issued on July 30, 2015. (Id., Mandate.) Movant filed a petition for writ of certiorari, which was denied on April 25, 2016. Zepeda v. United States, 136 S.Ct. 1712 (2016).

D. PRESENT HABEAS PROCEEDINGS

Motion - Movant, incarcerated at the time in the United States Penitentiary in Tucson, Arizona, commenced the current case by filing pro se his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 April 25, 2017 (Doc. 1). Movant's Motion asserts the following 11 major grounds for relief:

In Ground One, he asserts that his attorney failed to request a jury instruction based on “substantial evidence of [Movant's] intoxication” and failed to raise “voluntary intoxication” as an affirmative defense. He contends that the jury could not possibly have properly evaluated Movant's mental state and, therefore, the convictions were based on insufficient evidence. In Ground Two, he asserts that his attorney failed to object to and/or failed to request curative instructions; failed to challenge “where different guns formed [the] basis of 924(c) counts”; failed to raise “defense of another” as an affirmative defense; stipulated to and failed to challenge an outdated Tribal Enrollment Certificate that established jurisdiction; failed to object to a sleeping juror; and failed to argue that predicate convictions were not “crimes of violence.” In Ground Three, Movant claims a violation of the Confrontation Clause, asserting that trial counsel “wrongly stipulated” to the admission of a ballistics report and an outdated Tribal Enrollment Certificate, which were “improperly admitted through second party affiants and without sufficient authentication.”

In Grounds Four through Six, Movant alleges violations of his right to a fair trial. In Ground Four, he contends that given the substantial evidence of intoxication, the lack of a voluntary intoxication jury instruction may have allowed the jury to reach guilty verdicts without properly evaluating Movant's mental state and may have prevented the jury “from making a valid finding on the ubiquitously required element [of] specific intent.” In Ground Five, he claims “[p]rosecutorial vouching, perjury allegations, substantial government interference with key witnesses' testimony, and an unchallenged sleeping juror[, ] warranted [a] mistrial, and the collective error . . . remained uncured by sufficient jury instruction.” In Ground Six, he asserts that “[f]lagrant, repetitious misrepresentation of crucial evidence . . . remained uncured by sufficient jury instruction and unfairly encouraged the jury's retributive ‘blanket verdict.'”

In Ground Seven, Movant contends that there was insufficient evidence to support the convictions, arguing that there was insufficient evidence of Movant's and his codefendant's mental states and ability to form the specific intent required for the charges; insufficient evidence that Movant was an “Indian”; and insufficient evidence of assault with a dangerous weapon and assault resulting in serious bodily injury. In Ground Eight, Movant alleges that the cumulative trial errors, which remained uncured by sufficient jury instructions, violated Movant's right to a fair trial.

In Ground Nine, Movant asserts that the imposition of an excessive, 1083-month sentence was “procedurally and substantively unsound” because the “parties misapprehended that the judge lacked

any discretion to alter imposition of mandatory, consecutive sentences or alter overall sentencing structure to comport with 3553 sentencing factors:” He also contends that Dean v. United States, __ U.S., 137 S.Ct. 1170 (Apr. 3, 2017), is “intervening and [s]uperseding law” that “should be considered substantive and retroactive.” In Ground Ten, Movant contends that his convictions and sentences under 18 U.S.C. § 924(c) are “illegal under either § 924(c)(3)(A) or (B)” in light of Johnson v. United States, U.S., 135 S.Ct. 2551 (2015), and Dimaya v. Lynch, 803 F.3d 1110, 1115 (9th Cir. 2015). In Ground Eleven, he claims the Court “erred by imposing consecutive terms for two Section 924(c)(1) violations based on the same underlying offenses.”

(Order 4/28/17, Doc. 5 at 2-3.) The undersigned addresses the major claims and subclaims as follows:¹

Ground 1 - ineffective assistance regarding voluntary intoxication

Ground 2 - ineffective assistance regarding:

(1) failure to object or seek curative instructions regarding:

(a) prosecutor vouching

(b) prosecutor's closing argument

(c) jury instructions re Indian status

(d) form of the verdicts

(2) different guns

(3) defense of another

(4) Tribal Enrollment Certificate

(5) sleeping juror

(6) crimes of violence

Ground 3 - confrontation clause violation from:

(a) ballistics report

(b) Tribal Enrollment Certificate

Ground 4 - voluntary intoxication instruction

Ground 5 - denial of fair trial from

(a) prosecutorial vouching

(b) perjury allegations

(c) government interference with testimony

(d) sleeping juror

(e) cumulative effect of the foregoing

Ground 6 - misrepresentations of evidence

Ground 7 - insufficient evidence of:

(1) intent

(2) status as an “Indian”

(3) assault with a dangerous weapon

(4) assault resulting in serious bodily injury

Ground 8 - cumulative error denying fair trial

Ground 9 -sentencing error based on:

(a) misapprehension of judge's discretion

(b) new law under Davis v. United States, 137 S.Ct. 1170 (2017)

Ground 10 - sentencing error under Johnson v. U.S., 135 S.Ct. 2551 (2015) and Dimaya v. Lynch, 803 F.3d 11010 (9^th Cir. 2015)

Ground 11 - erroneous consecutive terms for § 924(c)(1) offenses

1 For consistency, the undersigned follows the numbering system used by Respondents, which is partially derived from the numbering system employed by Movant Additional subclaims are identified by number and letter, e.g. “5(a).”

Response - On July 12, 2017 Respondent filed its Response (Doc. 13). Respondent argues: (a) Grounds 3(b), 4, 5, 6, 7(a), 7(b), 8, and 11 should be dismissed as resolved on direct appeal; (b) Ground 10 is procedurally barred; and Grounds 1, 2, 3(a), 7(c), 7(d), 9, and 10 are without merit. Respondent further argues Movant is not entitled to an evidentiary hearing.

Stay - Counsel appeared for Movant at the direction of the Office of the Federal Public Defender. (Doc. 14.) At the parties' request, the Court stayed this Motion to Vacate proceeding pending the resolution of various cases in the Ninth Circuit and Supreme Court addressing whether a reckless offense can qualify as a crime of violence. (Order 8/14/18, Doc. 25.) Most recently, the parties were directed to provide periodic status reports, and a report in the event of the issuance of any guidance by the Department of Justice on the application of United States v. Borden, No. 19-5410, 2021 WL 2367312 (U.S. June 10, 2021) to cases like Petitioner's. (Order 7/1/21, Doc. 45.) On July 30, 2021 the parties filed a Joint Motion to Lift Stay (Doc. 46) asserting the matter was appropriate to proceed. On August 3, 2021, the Court vacated the stay, and set a schedule for further briefing. (Order 8/3/21, Doc. 47.)

Supplemental Response - On August 16, 2021, Respondent filed its Supplemental Response (Doc. 48) addressing the claims in Grounds 2(f) and 10. Respondent argues that under the decision in Borden, the conviction under Count 3 (firearm re bodily injury assault) must be vacated because the underlying offense of assault resulting in serious bodily injury can be completed recklessly. Respondent argues the other firearms offenses in Counts 5, 7 and 9 related to assaults with a dangerous weapon are properly based on a “crime of violence, ” and remain valid, citing U.S. v. Gobert, 943 F.3d 878 (9th Cir. 2019). Respondent argues that trial counsel was not ineffective with regard to these issues because: (1) under current law, the underlying claims regarding Counts 5, 7, and 9 lack merit; (2) under controlling law at the time, the claims on all counts lacked merit; and (3) vacating of Count 3 eliminates any prejudice resulting from failure to raise the related claim. Respondent argues that after unbundling of the sentences the Court should resentence Movant on the remaining counts (1, 2, and 4-9).

Reply - On September 17, 2021, Movant filed his Reply (Doc. 53). Movant agrees Count 3 must be vacated, but argues that Gobert is wrongly decided and Counts 5, 7, and 9 must also be dismissed because the least culpable form of assault with a deadly weapon can be committed recklessly, and thus does not qualify under the categorical approach. Movant argues the Supplemental Response waives Respondent's procedural bar argument, and Movant can show cause to excuse the default because Johnson based claims were previously unavailable, and prejudice resulted. Movant also argues any default should be excused because he is actually innocent of Counts 3, 5, 7 and 9. Movant argues that on resentencing the decision in Dean v. United States, 137 S.Ct. 1170 (2017) should apply retroactively and that the “parsimony principle” should apply to the mandatory minimum sentences under § 924(c). However, Movant agrees that unbundling of the sentencing package and resentencing are the appropriate remedies.

III. APPLICATION OF LAW TO FACTS

A. EVIDENTIARY HEARING

Respondent argues that an evidentiary hearing is not justified. (Response, Doc. 13 at 39.) Movant does not request an evidentiary hearing, nor offer any evidence to be adduced at one. The Ninth Circuit has recognized that even when credibility is at issue, no evidentiary hearing is required on a motion to vacate if it can be "'conclusively decided on the basis of documentary testimony and evidence in the record.'" Shah v. U.S., 878 F.2d, 1156, 1159 (9th Cir. 1989) (quoting U.S. v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989)).

Moreover, “merely conclusionary statements in a § 2255 motion are not enough to require a hearing.” Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969). This does not, however, “mean that the moving party must detail his evidence. It means only that he must make factual allegations.” Id.

Here, each of the claims and defenses can be conclusively decided on the basis of the record in this case. Here, Grounds 3(b), 4, 5, 6, 7(2), 7(3), 8 and 11 may be disposed of the basis of the appellate proceedings, and do not require an evidentiary hearing. The ineffective assistance claims in Ground 1 and 2 are resolved in part by reference to the affidavit of trial counsel submitted with Respondent's Response. However, Movant points to no facts or evidence (even his own testimony) available at an evidentiary hearing, which would counter the assertions by trial counsel relied upon herein or lead to a different result. The remaining Grounds (3(a), 7(1), 9 and 10) are resolved entirely on the existing record, and Movant does not proffer any additional relevant evidence to be adduced at an evidentiary hearing.

Accordingly, no evidentiary hearing is required to resolve the Motion to Vacate.

B. CLAIMS DECIDED ON DIRECT APPEAL - GROUNDS 3(B), 4, 5, 6, 7(2), 8 AND 11

Respondent argues Grounds 3(b), 4, 5, 6, 7(1), 7(2), 8, and 11 should be dismissed as resolved or waived on direct appeal. (Response, Doc. 13, 13-15.) Movant does not reply.

1. Applicable Law

"Issues disposed of on a previous direct appeal are not reviewable in a subsequent petition under 2255." Stein v. U.S., 390 F.2d 625, 626 (9th Cir. 1968). “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.” Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972).

2. Application of Law

In Ground 3(b), Movant argues his Confrontation Clause rights were violated by introduction of a Tribal Enrollment Certificate. (Motion, Doc. 1 at 9.)² On direct appeal, Zepeda argued admission of the certificate “violated his rights under the Confrontation Clause.” Zepeda, 738 F.3d at 207. Applying a plain error standard, the Ninth Circuit panel held the court did not “err in admitting the Tribal Enrollment Certificate into evidence.” Id. at 208. This claim was resolved by the appellate court.

2 For simplicity, references to page numbers in the Motion (Doc. 1) are to the docketed page number, not the page number in the footer of the Motion and “Continuation.”

In Ground 4, Movant argues the trial court erred by failing to give a voluntary intoxication instruction despite the evidence of intoxication. (Motion, Doc. 1 at 10.) Plaintiff raised this claim on direct appeal, and applying a plain error standard, the Ninth Circuit panel rejected it in the unpublished decision. Zepeda, 506 Fed.Appx. at 538. This claim was resolved by the appellate court.

In Ground 5, Movant argues his rights to a fair trial were violated by (a) vouching regarding plea agreements, (b) perjury allegations, (c) witness interference, (d) a sleeping juror, and (e) collective error. (Motion, Doc. 1 at 15.) In the unpublished decision, the Ninth Circuit panel rejected the claims based on: (a) vouching, Zepeda, 506 Fed.Appx. at 538; (b) perjury allegations, id.; (c) witness interference (pre-trial admonitions to not commit perjury), id.; (d) a sleeping juror, id. at 538-539; and (e) cumulative error, id. at 539. This claim was resolved by the appellate court.

In Ground 6, Movant argues the prosecution misstated evidence and the trial judge failed to offer a curative instruction. (Motion, Doc. 1 at 16.) In the unpublished decision, the Ninth Circuit panel rejected this claim, finding “no prejudicial plain error resulted in light of the ample additional evidence.” Zepeda, 506 Fed.Appx. at 538. This claim was resolved by the appellate court.

In Ground 7, Movant argues there was insufficient evidence to convict on, inter alia: (1) his mental state and specific intent because of the lack of a voluntary intoxication instruction (Motion, Doc. 1 at 17-18); (2) on his being an “Indian” (id. at 18-21); and (3) on the assault charges (id. at 28).

Respondent argues that Ground 7(1) was rejected in the unpublished panel decision, citing discussions in the decision about the lack of instruction and sufficient evidence of the conspiracy. (Response, Doc. 13 at 14.) But the issue decided with regard to voluntary intoxication was solely that no error occurred from the trial court's failure to issue a voluntary intoxication instruction sua sponte. Zepeda, 506 Fed. App'x at 538. No discussion was made about sufficiency of the evidence on mental state and specific intent. Similarly, the discussion on sufficiency of the evidence regarding the conspiracy included no discussion of an assertion of a lack of Movant's mental state and ability to form the specific intent. Id. at 539. Respondent proffers nothing further to show that the insufficient evidence claim on intent was raised or decided on direct appeal. Accordingly, this claim cannot be rejected as having been decided on direct appeal.

In contrast, Movant's argument in Ground 7(2) regarding insufficient evidence of his status as an “Indian” was plainly raised on direct appeal, and decided in the en banc opinion. Zepeda, 792 F.3d at 1115-16 (“We therefore hold that the Enrollment Certificate and Matthew's testimony were sufficient to establish that Zepeda was an Indian at the time of the charged offenses.”). This claim was resolved by the appellate court.

Respondent argues that although not explicitly decided in the various appellate decisions, the claims of insufficient evidence in Ground 7(3) were argued on direct appeal, and effectively disposed of when the en banc court ruled: “We reject Zepeda's other arguments and affirm his convictions and sentence in full.” Zepeda, 792 F.3d at 1116. (Response, Doc. 13 at 28.) Movant does not reply and proffers no basis to distinguish the claims in Ground 7(3) from those raised on direct appeal. The undersigned cannot agree that the quoted portion of the en banc decision was sufficient to become the law of the case on the claims in Ground 7(3) because that opinion provide a discrete list of arguments addressed, which was limited to the Indian status and unreasonable sentence arguments. Zepeda, 792 F.3d at 1109. However, the unpublished panel decision rejecting Movant's argument “that insufficient evidence supported his conspiracy conviction” was sufficient to constitute a rejection of Ground 7(3), even though the ensuing discussion was limited to the discussing the existence of a “conspiratorial agreement.” Zepeda, 506 Fed.Appx. at 539. This claim was resolved by the appellate court.

In Ground 8 Movant argues that cumulative trial errors violated his right to a fair trial. This was decided and rejected in the unpublished decision. Zepeda, 506 Fed.Appx. at 539. This claim was resolved by the appellate court.

In Ground 11 Movant argues the court erred in imposing consecutive prison terms on the § 924(c)(1) violations when they were based on the same underlying offenses. (Motion, Doc. 1 at 25-27.) In the en banc decision, the Ninth Circuit rejected this claim.

Under 18 U.S.C. § 924(c), the district court was required to impose consecutive mandatory minimum sentences on Zepeda's convictions for use of a firearm during a crime of violence. Each of Zepeda's convictions under § 924(c) was tied to a different predicate offense: one count of assault resulting in serious bodily injury against Peters and three counts of assault with a dangerous weapon against Peters, Aviles, and C. The jury found that Zepeda discharged his firearm in committing each offense. Therefore, Zepeda's first conviction under § 924(c) carried a statutory mandatory minimum sentence of ten years, 18 U.S.C. § 924(c)(1)(A)(iii), and the other three convictions each carried statutory mandatory minimum sentences of twenty-five years, id. § 924(c)(1)(C)(i); see United States v. Beltran-Moreno, 556 F.3d 913, 915 (9th Cir.2009). Each mandatory minimum sentence had to be imposed consecutively. 18 U.S.C. § 924(c)(1)(D)(ii); Beltran-Moreno, 556 F.3d at 915. Therefore, Zepeda's sentence is the only sentence the district court could impose. See United States v. Harris, 154 F.3d 1082, 1085 (9th Cir.1998). Its length was determined not by the judge but, in effect, by the United States Attorney's charging decision.

Zepeda, 792 F.3d at 1116. This claim was resolved by the appellate court.

3. Summary

Plaintiff's claims on Grounds 3(b), 4, 5, 6, 7(2), 7(3), 8 and 11 were decided on direct appeal and cannot provide a basis for relief in this § 2255 proceeding. Accordingly, these claims must be dismissed with prejudice.

That leaves for further consideration Grounds 1, 2, 3(a), 7(1), 9, and 10.

C. PROCEDURAL DEFAULT

Respondent argued in its original Response that Movant failed to raise his claim in Ground 10 (Johnson / Dimaya error) on direct appeal and the claim is procedurally defaulted. (Answer, Doc. 13 at 32-39.)

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). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice,' or that he is ‘actually innocent'.” Bousley, 523 U.S at 622 (citations omitted).

Movant argues, however, that Respondent waived this argument in its Supplemental Response. (Reply, Doc. 53 at 20.) Indeed, the body of the Supplemental Response incorporates by reference most of the original Response, but specifically excludes the portions addressing, inter alia, Ground 10:

The government fully incorporates the factual and procedural history set forth in its first response, as well as all of the arguments made there, except (1) those relating to Defendant's claims regarding the validity of his § 924(c) convictions and (2) his claim of ineffective assistance of counsel for failing to argue that the predicate convictions were not crimes of violence.

(Supp. Resp. Doc. 48 at 1-2.) Lest the court or parties be confused about the portions of the original Response that were no longer argued, Respondent clarified in a footnote:

This supplement replaces the government's arguments at paragraph A.10., page 26 and paragraph E., pages 31-39 of its original response.

(Supp. Resp., Doc. 48 at 2, n. 1.) Pages 31-39 of the original Response are Respondent's procedural default argument. Respondent does not restate a procedural default argument in its Supplemental Response. Nor has Respondent sought to amend its Response or Supplemental Response to reassert procedural default.

“Ordinarily, the government's failure to raise the petitioner's procedural default at the appropriate time waives the defense.” United States v. Barron, 172 F.3d 1153, 1156 (9th Cir. 1999). Of course, a court may raise a procedural default defense sua sponte if it affords the movant an opportunity to respond to the defense. Hines v. United States, 971 F.2d 506, 509 (10th Cir.1992).

But here, Respondent has not just failed to raise a procedural default defense, but has waived it by explicitly deleting it from its briefs. “If the government can ‘waive waiver' implicitly by failing to assert it, certainly the government can do so explicitly, as occurred here.” United States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002). Accordingly, the Court should decline to raise procedural default sua sponte, and instead proceed to the merits of Ground 10.

D. INEFFECTIVE ASSISTANCE CLAIMS - GROUNDS 1, 2

In Ground 1 and 2, Movant asserts trial counsel was ineffective in various respects. Respondent asserts these claims are without merit. Movant does not offer any reply in support of these claims.

Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, Petitioner 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 the petitioner 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.

1. Ground 1 - IAC re Voluntary Intoxication

In Ground 1, Movant argues trial counsel was ineffective in failing to raise the affirmative defense and seek a jury instruction on voluntary intoxication despite the ample evidence and argument that Movant and co-defendants were drinking alcohol and smoking marijuana. Movant concedes he did not discuss his level of intoxication with counsel, but that he was unaware of its import to establishing the requisite mens rea. (Motion, Doc. 1 at 7.)

Respondent argues this claim is without merit because there was no evidence that Movant's level of intoxication rose to the level of precluding the formation of the mens rea. Respondent further argues that assertion of such a defense was logically (although not legally) mutually exclusive of the defense raised (denial of having a gun), and choosing between them was not ineffective assistance. Respondent presents an affidavit from trial counsel (Exh. 1) that the defense was not asserted because of a lack of assertion or evidence of incapacitation, Movant's claims of self-defense, and a strategic choice. (Response, Doc. 13 at 17-19.)

“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).

The undersigned finds that trial counsel made a reasonable tactical choice to pursue the defense most in line with Movant's version of the facts, rather than a defense supported only by evidence of Movant's ingestion of some indeterminate volume of alcohol and/or marijuana.

Ground 1 should be denied.

2. Ground 2(1)(a) - IAC re Vouching

In Ground 2(1) Movant argues trial counsel was ineffective in failing to object to or seek curative instructions with regard to a series of issues. In part (a), he argues trial counsel was ineffective in failing to act when the prosecution improperly vouched for co-defendants by informing the jury they had pled guilty and were testifying to receive a reduced sentence. (Motion, Doc. 1 at 8.)

Respondent argues the underlying claim of vouching is without merit because there was no improper vouching, and the issue was addressed on direct appeal. (Response, Doc. 13 at 20.)

“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). Here there was no valid objection to be made or curative instruction justified.³

3 Respondent argues the underlying claim was rejected on direct appeal in the panel decision. Although that court referenced the general argument (“Zepeda next argues that the prosecutor committed misconduct when questioning…regarding Matthew's obligations to testify truthfully pursuant to his plea agreement”), the Court did not appear to decide that issue, but instead focused on the prosecution's “ ‘perjury' objection, ” finding no harm because a curative instruction was issued and because Matthew was the prosecution's witness the objection favored the defense. Zepeda, 506 Fed. App'x at 538.

Movant fails to show reference to the plea agreement was improper. “[W]hen the prosecution examines the codefendant as its witness in support of its case-in-chief, a question about the guilty plea is legitimate as the purpose is to support the reasonableness of the witness' claim to firsthand knowledge because of admitted participation in the very conduct which is relevant.” United States v. Halbert, 640 F.2d 1000, 1005 (9th Cir. 1981). Of course, qualifications apply.

What may facially appear as a legitimate introduction of evidence of a plea becomes something else and on the level of prejudicial error when, for example, the prosecutor suggests in closing argument that the jury use the plea for a prohibited purpose, when the plea has been used improperly to vouch for the codefendant as a witness, when the use of the plea involves aggravated circumstances known to the trial court, or when the plea is clearly offered as substantive evidence of guilt.

Id. (citations omitted). Movant offers nothing to show any of these types of circumstances apply.

Moreover, Movant fails to show that “vouching” occurred. “Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to the jury supports the witness's testimony.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980). Movant points to nothing to show the former occurred and, if anything, the reference to reduced sentences served to diminish co-defendant's credibility rather than supporting it.

Ground 2(1)(a) is without merit and should be denied.

3. Ground 2(1)(b) - IAC re Closing Argument

In Ground 2(1)(b) Movant argues trial counsel was ineffective for failing to object or seek curative instructions based on the prosecution's: (i) unsupported references in closing to Movant telling the brothers to beat up the victim; and (ii) inflammatory references to a conspiracy to ambush with a dirty, three-on-one attack, with two loaded weapons against an unarmed man in a house with women and children. (Motion, Doc. 1 at 8.)

Respondent argues that the comments were reasonable inferences from the record and/or harmless given the evidence, and the Ninth Circuit so held at least in part on direct appeal. (Response, Doc. 13 at 21.)

The Ninth Circuit found the first instance (i) improper but harmless.

However, the prosecutor's statement during closing argument that Zepeda told his brother Jeremy Zepeda (“Jeremy”) that they were going to “do some dirt, ” when in fact there was no testimony to that effect, was improper. Nonetheless, no prejudicial plain error resulted in light of the ample additional evidence from which the jurors could have inferred a conspiratorial agreement.

Zepeda, 506 Fed.Appx. at 538. Accordingly, any action by trial counsel on this instance would have been futile. “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).

Movant fails to show that the second instance (ii) was anything more than valid argument based on reasonable inferences from the evidence that there was conspiratorial agreement. “Prosecutors can argue reasonable inferences based on the record, and have considerable leeway to strike ‘hard blows' based on the evidence and all reasonable inferences from the evidence.” United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (citations omitted). While “ambush” and “dirty” were hard blows, they were supported by the evidence, and were not a simple call to passion or prejudice.

Ground 2(1)(b) is without merit and should be denied.

4. Ground 2(1)(c) - IAC re Jury Instructions

In Ground 2(1)(c) Movant argues trial counsel failed to act in the face of improper instructions about finding Movant was an Indian. Movant argues the court instructed the jury to find he was an Indian, when they were required to find the requisite quantum of “Indian blood” and practical and social ties to the tribe. (Motion, Doc. 1 at 8.)

Respondent argues Movant cannot show prejudice because the Ninth Circuit en banc opinion found the instructional error was not to mandate a finding, but to fail to provide the elements of such a finding, but any error was harmless because the evidence was clear and undisputed. (Response, Doc. 13 at 21-22.)

Indeed, the Ninth Circuit opined:

Here, the trial court erred by instructing the jury to find whether Zepeda was an Indian without telling it how to make that finding. Zepeda did not object to the instruction, so we review for plain error. “Plain error is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.' ” The erroneous jury instruction did not affect Zepeda's substantial rights because, as we discuss below, there was clear and undisputed evidence that Zepeda both had Indian blood and was an enrolled member of a federally recognized tribe.

Zepeda, 792 F.3d at 1115.

Trial counsel explains that his strategic choice was to “discredit the government's witnesses with the various inconsistencies evident in their statements, ” and that he stipulated to the Tribal Enrollment Certificate “to keep the focus on the unreliability of the government's witnesses, ” and that he “knew that the government would be able to prove his status as an Indian, a fact that Mr. Zepeda never disputed.” (Response, Exhibit, Doc. 13-1 at ¶¶ 6-8.) Movant alleges no facts and offers no evidence to counter this.

Clearly, there was a valid legal basis for counsel to seek additional instructions on this issue. However, because the evidence was clear and undisputed, the undersigned cannot find that counsel acted unreasonably in not requesting different instructions. Moreover, that the evidence was clear and undisputed precludes a finding of prejudice from failure to seek an instruction requiring the jury to make the additional findings. Accordingly, Movant fails to show deficient performance and prejudice and Ground

5. Ground 2(1)(d) - IAC re Verdict Form

In Ground 2(1)(d) Movant argues counsel was ineffective in failing to challenge the failure of the forms of verdict to require a designation of the “degree of liability, ” i.e. “conspirator, aid/abettor or principal” on the conspiracy charges, resulting in questions by the jury during deliberation. (Motion, Doc. 1 at 8.)

Respondent argues the forms were not erroneous and thus counsel was not deficient in failing to challenge them. (Response, Doc. 13 at 22-23.) The undersigned agrees.

Respondent properly argues the government was not required to prove the role of each co-conspirator, U.S. v. Vaandering, 50 F.3d 696, 702 (9th Cir. 1995), the jury need not be unanimous on the role, United States v. Kim, 196 F.3d 1079, 1083 (9th Cir. 1999), and the forms of verdict stated the role in the alternative, i.e. “either as a principal, aider and abettor or co-conspirator, ” (CR Doc. 113).

This Ground is without merit and must be denied.

6. Ground 2(2) - IAC re Different Guns

In Ground 2(2) Movant argues that trial counsel was ineffective for failing to challenge a “blanket verdict” that could have been a conviction of Movant based on co-defendant's possession of a shotgun, not just the handgun possessed by Movant. (Motion, Doc. 1 at 8.)

Respondent properly argues that Movant's legal argument is valid, but his facts wrong. Two guns and one predicate offense supports only one § 924(c) conviction. But any number of guns (other than zero) and two predicate offenses support two § 924(c) convictions. United States v. Martinez, 967 F.2d 1343, 1348 (9th Cir. 1992). Here, Movant's multiple convictions under § 924(c)(1) were not based on the specific weapons, but on the various predicate crimes of assault. (See CR Doc. 113, Verdict; CR Doc. 3, Indictment.)

This Ground is without merit and must be denied.

7. Ground 2(3) - IAC re Defense of Another

In Ground 2(3) Movant argues that his defense at trial should have included not only self-defense, but mutual defense with co-defendant. (Motion, Doc. 1 at 8.)

Respondent argues that the defense-of-another theory was mutually exclusive with Movant's theory at trial, and counsel was not deficient in choosing a theory to proceed on. Counsel does not address his reasoning for not pursuing a defense-of-another strategy.

The court need not determine the actual reason for an attorney's actions, as long as the act falls within the range of reasonable representation. Morris v. California, 966 F.2d 448, 456-457 (9th Cir. 1991). This is because of the 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), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 233 F.3d 1005, 1009 (7th Cir. 2000).

Counsel has avowed:

4. From my earliest conversations with Mr. Zepeda, he insisted that he was unarmed when he approached [DP]s' home and that he only acted in self-defense after being fired upon. Mr. Zepeda never deviated from that explanation of the events that led to the charges in this case.

6. After reviewing the reports, conducting additional investigation, and my numerous discussions with Mr. Zepeda, I determined that our best strategy at trial was to discredit the government's witnesses with the various inconsistencies evident in their statements. This defense comported with Mr. Zepeda's version of the events of the evening.

(Response, Exhibit, Doc. 13-1 at 1.)

Indeed, on direct-examination, Movant's testimony supported a self-defense theory, but offered little, if any, fodder for a defense-of-another theory:

Q. At the time that you get into the car, do you have any weapons?

A. No, I don't.

Q. Do you have a gun?

A. No, I don't.

Q. Does Matthew have a gun? Do you see whether he has a gun?

A. I didn't see Matthew with nothing either.

Q. At the time that yourself, Matthew and Jeremy get back into the car to go over to [DP]s', do you have a firearm?

A. No, I don't.

Q. Do you have -- does Matthew have a firearm that you know?

A. Not that I know, no.

Q. All right. We're at the point that you're fighting with [SA] out in front of the house. You told us that you hit her. What happens after that?

A. After that I heard gunshots and I took off running.

Q. What did you see [SA] do? Where did she go?

A. She took off running back inside.

Q. Where did you run to?

A. I ran onto the back of the house because it was pitch black back there.

Q. Could you -- how far could you see in front of you as you were running towards the back?

A. I couldn't see nothing.

Q. Well, what happens as you are running towards the back?

A. As I'm running to the back, I hit the corner and that's when I end up meeting another male right there.

Q. Tell us about what happens when you meet the other male right there.

A. Well, as soon as I ran into him, he had something in his hands. We started fighting over whatever it was in his hand. And I heard shots started going off right then and there, so right then and there I knew it was a gun.

Q. What were you thinking at this time?

A. At this time I was just thinking I can't get hurt, you know. I have to fight over it.

Q. Did you have a fear for your life?

A. Yes. I was scared for my life.

Q. Now, in a fight with this male in the corner over the gun. Tell us what happened next.

A. He kept shooting off shots and then after a while I gained control over the gun.

Q. Do you shoot off the gun?

A. Yes, I do.

Q. Do you shoot him, "him" being -- we've come to know him as Dallas Peters. Do you shoot him?

A. Yes, I do.

(RT 10/27/09, CR Doc. 189 at 745, 747, 751-753.)

In closing, counsel argued that Movant did not hit SA with a gun, only his hand, and the only gun he fired was in self-defense when fired upon by DP. (RT 10/28/09 852-857.)

Movant points to no evidence, including his own testimony, that would have supported a strategy of defense of another. Thus, it is not that defense of another was mutually exclusive of counsel's theory of self-defense (one can theoretically shoot defend self and another). Rather, Movant's own testimony did not support such a defense. Thus, counsel could have made a reasonable strategic choice to forego a theory of the case that had no evidentiary support, especially that of his client.

The ground is without merit and should be denied.

8. Ground 2(4) - IAC re Trial Enrollment Certificate

In Ground 2(f) Movant argues trial counsel was ineffective for stipulating to admission of the Tribal Enrollment Certificate, which was issued October 7, 2009, was valid for only 30 days, and thus expired prior to the offense, and was also insufficient to prove tribal membership. (Motion, Doc. 1 at 8, 13.)

Respondent argues that the Ninth Circuit panel found counsel's election to cede the Indian status was a strategic choice. Respondent argues it was a reasonable choice because, even if the certificate were expired, the government would eventually be able to prove Movant's Indian status. (Response, Doc. 13 at 24-25.)

In addressing Movant's argument on direct appeal that the stipulation to admission of the certificate denied his confrontation rights, the Ninth Circuit panel opined:

Zepeda argues that waiver of a fundamental constitutional right cannot ever constitute a sound trial strategy, particularly where, as here, the Tribal Enrollment Certificate purported to establish an essential jurisdictional element. It appears from the record, however, that Zepeda's attorney strategically focused Zepeda's defense on the implausibility of government witnesses' testimony, as compared to Zepeda's markedly different version of the relevant events. He chose not to direct the jury's attention to Zepeda's Indian status, and informed the jury during his opening statement: “I will stipulate and concede things that ought to be conceded in terms of my client, Mr. Zepeda.” Although ultimately not a winning strategy, it was clearly “deliberately made as a matter of trial tactics, ” and did not involve a “basic trial right[ ]” such as the decision “whether to plead guilty, waive a jury, testify in his ... own behalf, or take an appeal.” Gamba, 541 F.3d at 901 (quoting Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (internal quotation marks omitted)). Nor, as we discuss at length below, was the Tribal

proof of Zepeda's Indian status. Thus, Zepeda's attorney did not violate Zepeda's Confrontation Clause rights when he stipulated to admission of the Certificate. See Gamba, 541 F.3d at 900; Wilson, 345 F.2d at 287.

Zepeda, 738 F.3d at 207-08. While not deciding the ineffectiveness issue (only the confrontation issue), this rationale is a finding that the decision to stipulate was a tactical choice by counsel. This is supported by trial counsel's Affidavit. (Response, Exhibit, Doc. 13-1 at ¶ 7-8.) Movant offers no facts or evidence to counter that assertion.

Movant offers nothing to show that it was an unreasonable one or that the outcome would have been different, because he provides nothing to show that even without the certificate the prosecution would not have been able to prove his Indian status.

This Ground is without merit and must be denied.

9. Ground 2(5) - IAC re Sleeping Juror

In Ground 2(5) Movant argues trial counsel was ineffective for failing to object to the trial court's failure to conduct an inquiry about reports of a sleeping juror. Movant argues the sleeping occurred during a portion of the victim's testimony relevant to Movant's claim of self-defense.

Respondent properly argues that a mistrial is not always appropriate when a juror is sleeping. See United States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983) (remanding to determine whether sleeping juror resulted in prejudice). Respondent argues that no prejudice resulted because the testimony being taken was favorable to the prosecution not the defense.

Being relevant is not sufficient to constitute prejudice. Rather, the missed testimony must have somehow been favorable to the defense. The Ninth Circuit's unpublished decision addressed the related claim of abuse of discretion by the trial court, and found it was not favorable:

Zepeda failed to demonstrate that the juror's inattention “deprived him of his right to an impartial jury and, more generally, to a fair trial” because the record reflects that the juror was asleep during key testimony that incriminated him. Id. (citation and internal quotation marks omitted). The juror's inattention therefore, if anything, was

Zepeda, 506 Fed.Appx. at 538. Thus, counsel did not perform deficiently, and Movant fails to show prejudice.

Ground 2(5) is without merit and must be denied.

10. Ground 2(6) - IAC re Crimes of Violence

In Ground 2(6) Movant argues counsel was ineffective for failing to challenge whether the predicate offenses underlying the § 924(c) weapons charges could qualify as crimes of violence, on the bases argued in Grounds 10 and 11. (Motion, Doc. 1 at 14.)

Regarding the claims in Ground 10, Respondent argues (as discussed hereinafter) that there was a valid defense only as to the one charge (Count 3) based on assault with serious bodily injury, and that the well-settled controlling law at the time of trial (pre-Johnson) made counsel's failure to raise the claim reasonable performance. Respondent further argues that the relief encouraged herein eliminates any prejudice with regard to Count 3. (Supp. Resp. Doc. 48 at 6-7.)

The undersigned agrees that, in light of the relief recommended herein, no prejudice will have resulted from any deficiency with regard to Count 3.

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. “What was reasonable under the circumstances must be evaluated as of the time that the legal services were rendered so as to minimize the distortions of hindsight.” Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002). Movant offers no argument that, at the time of trial in 2010, prevailing law (i.e. the pre-Johnson enforceability of the residual clause) would have supported an argument that his offenses in Counts 3, 5, 7, and 9 would not have qualified as crimes of violence. Moreover, the undersigned concludes hereinafter that the claims as to Count 5, 7 and 9 are without merit.

Respondent does not argue with regard to Ground 11. However, as discussed hereinabove in Section III(B)(2), the Ninth Circuit rejected the underlying claim as without merit. Failure to raise a futile argument is not ineffective assistance. Baumann, 692 F.2d at 572.

Ground 2(6) is without merit and must be denied.

E. GROUND 3(A) - BALLISTICS REPORT

In Ground 3(a) Movant argues his confrontation clause rights were violated by the introduction of a ballistics report without testimony from the author, and foundation only from an FBI Agent, based on counsel's stipulation to which Movant did not consent. (Motion, Doc. 1 at 9.)

Respondent concedes this issued was argued on direct appeal, but not addressed by the Ninth Circuit. Respondent argues the claim is without merit because the waiver of any confrontation right was waivable by counsel. Respondent further argues that any error was harmless because the report merely analyzed evidence from the scene and did not specifically inculpate Movant.⁴ (Response, Doc. 13 at 26-27.)

4 Although Respondent notes in a footnote that trial counsel has avowed that Movant participated in the decision to stipulate to the ballistics report, Respondent does not argue this as a basis for denying this claim. (Response, Doc. 13 at 26, n. 7.) Presumably, this is because there is a potential factual dispute between Movant and trial counsel that would require an evidentiary hearing to resolve. The undersigned does not rely on counsel's avowal.

Movant does not reply.

In addressing the related claim regarding the Tribal Enrollment Certificate, the Ninth Circuit panel decision opined:

Moreover, our case law recognizes that “defense counsel may waive an accused's constitutional rights as a part of trial strategy.” United States v. Gamba, 541 F.3d 895, 900 (9th Cir.2008). Counsel's authority extends to waivers of the accused's Sixth Amendment right to cross-examination and confrontation as a matter of trial tactics or strategy. Wilson v. Gray, 345 F.2d 282, 287-88 (9th Cir.1965).

Zepeda, 738 F.3d at 207. The en banc court held no differently, relying on the stipulated Tribal Enrollment Certificate as evidence of Movant's Indian status. Zepeda, 792 F.3d at 1115 (“Zepeda stipulated to the admission of the Enrollment Certificate and did not challenge its attestation that he was a member of the Gila River Indian Community.”). Similarly, here, no error by the trial court occurred in admission of the ballistics report on Movant's counsel's stipulation.

This Ground is without merit and must be denied.

F. GROUND 7(1) - INSUFFICIENT EVIDENCE RE MENTAL STATE

In Ground 7(1), Movant argues there was insufficient evidence to convict on his mental state and specific intent because of the lack of a voluntary intoxication instruction. (Motion, Doc. 1 at 17-18). Respondent argues sufficient evidence supported the convictions. (Response, Doc. 13 at 28-29.)⁵ Movant does not reply.

5 Respondent does not argue this claim was procedurally defaulted. Respondent purports in a footnote to adopt by reference its appellate briefing on any claims (including this one) for which the Court rejects Respondents law-of-the-case argument addressed hereinabove. (Response, Doc. 13 at n. 6.) Wholesale incorporation by reference of filings in a separate proceeding is not a proper response to a Motion to Vacate, particularly where those filings have not been made a part of the record in this proceeding or even the underlying criminal case, and the Court is left to ferret through such briefs to identify the relevant arguments, and to translate them into the context of the grounds for relief asserted in the motion to vacate. See Rules Governing § 2255 Cases, Rule 5(b) (“The answer must address the allegations in the motion.”). Moreover, a procedural default argument would not have been appropriate on appeal. Thus, the undersigned has not directed the government to furnish those records pursuant to Rule 5(c). Further, given the plain lack of merit, the undersigned does not raise the defense sua sponte, and thus has not afforded Movant an opportunity to address the defense.

Movant fails to show why the lack of a voluntary intoxication instruction demonstrates insufficient evidence of the requisite mental state.

Moreover, there was significant evidence at trial that Movant possessed the requisite intent to engage in the charged assaults, including:

Matthew testified at trial that Zepeda told Jeremy to “grab something from the seat.” Jeremy “wasn't paying attention, ” so Matthew reached under the car seat and pulled out a shotgun. Jeremy testified that Zepeda got out of the car holding a handgun and a shotgun, and that Zepeda tried to give the shotgun to Jeremy. When Jeremy refused, Zepeda gave the shotgun to Matthew. Zepeda told Matthew to fire the shotgun if he heard shots.

Zepeda asked Aviles to leave with him. When she refused, he grabbed her arms. She tried to push him away and felt what she thought was a gun in his pocket. From inside the house, C heard Zepeda and Aviles “getting louder, ” and she went outside to check on Aviles. Aviles turned around to return to the house, and Zepeda

hit her in the head multiple times with something hard. Aviles fell face-down on the ground.

Zepeda pulled out a handgun and pointed it at C. She ran away down the east side of the house. She heard gunshots. Peters, who was urinating off his back porch at the time, heard the gunshots and walked to the southeast corner of the house. He saw C running toward him. He “grabbed her, pulled her in, like [to] shield her.” While holding C, Peters was shot in the shoulder.

At about the time Zepeda started shooting, Matthew fired the shotgun toward the backyard. Matthew then walked into the backyard and fired the shotgun in Peters's direction.

Zepeda, 792 F.3d at 1107-1108 (recounting the evidence in the light most favorable to the jury's verdict).

“A challenge to the sufficiency of the evidence requires this court to determine if ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

It is true that the evidence of drug and alcohol abuse were before the jury. However, Movant does not suggest the use was so great that a rational juror could not conclude that Movant remained capable of forming the requisite intent despite the use of alcohol and drugs. Merely ingesting alcohol or drugs prior to an offense is not a defense. Rather, the intoxication must preclude the formation of the requisite intent. United States v. Echeverry, 759 F.2d 1451, 1454 (9th Cir. 1985). Movant offers nothing to show that the evidence before the jury showed intoxication at that level, or that, given the other evidence before it, a rational juror could not have concluded that Movant had the intent to commit the offenses charged.

Ground 7(1) is without merit and must be denied.

G. GROUND 9 - SENTENCING ERROR

In Ground 9 Movant argues his sentence on the predicate offenses was “procedurally and substantively unsound” based on the court's misapprehension that it lacked discretion to reduce these sentences based on the applicable mandatory minimum sentences on the § 924(c) charges. Movant cites United States v. Dean, 137 S.Ct. 1170 (2017) as a retroactively applicable change in the law that allows sentencing judges to consider applicable mandatory minimum sentences (i.e. Movant's § 924(c) offenses) in setting the sentence on predicate offenses (i.e. Movant's predicate assault offenses). (Motion, Doc. 1 at 23-25.)

Respondent argued the Ninth Circuit has already rejected any argument that the sentence was unreasonable, and Dean does not alter the requirement for mandatory minimum sentences and is not in any event retroactively applicable because it is a procedural rule not a substantive rule. (Response, Doc. 13 at 29-31.) In its Supplemental Response, Respondent argues the issue is rendered moot by the vacating of a conviction resulting in an unbundling and vacating of all sentences. (Supp. Resp., Doc. 48 at 7, n. 4.)

Movant replies, arguing that Dean should be deemed retroactively applicable. Movant argues (for purposes of appeal) that Dean is substantive, and the Ninth Circuit's decision to the contrary in Garcia v. United States, 923 F.3d 1242 (9th Cir. 2019) is wrongly decided. (Reply, Doc. 53 at 25-27.)⁶

6 Movant's Reply references Ground 9 as “Claim 8.” (Reply, Doc. 53 at 25.).

Claim Asserted Arises Under Dean- Respondent appears misled by Movant's opening summary of this claim. The undersigned does not understand Movant to argue that Dean gave the judge discretion as to the mandatory minimums, only that it gave the judge the discretion to reduce the other sentences in light of those minimums. The summary appears to assert both, arguing “parties misapprehended that the judge lacked any discretion to alter imposition of mandatory, consecutive sentences or alter the overall sentencing structure to comport with 3553 sentencing factors.” (Motion, Doc. 1 at 23.)

But in the body of his argument Movant asserts:

Supporting FACTS: During sentencing and in his sentencing memorandum, trial counsel requested that the Court sentence Defendant below the applicable guideline sentence pursuant to the statutory sentencing factors of 18 U.S.C. §3553(a) (CR 161, p.) specifically asked the court to “[make] adjustments for the rest of the

charges and counts in order to render a reasonable sentence. (Id., p.2, 17))

The court did not specifically address counsel's request that adjustments be made for the predicate sentences to render the sentence reasonable. (Id. pp.7-8)

(Motion, Doc. 1 at 23, 24.)

Movant effectively raised this argument on direct appeal, albeit without reference to the then-undecided case in Dean: “Zepeda argues that his sentence-a prison term of ninety years and three months-was unreasonable because the district court improperly treated the Sentencing Guidelines as mandatory. Zepeda's sentence is indeed long, but his argument is based on a misunderstanding of the law governing his sentence.” Zepeda, 792 F.3d at 1116 (emphasis added). The circuit court then explained the mandatory nature of the multiple and consecutive § 924(c) sentences. However, the Ninth Circuit did not address the other, Sentencing Guidelines controlled sentences.

Contrary Rule Arguably Applied - Movant's Sentencing Memorandum argued for, at the most, the imposition of only one mandatory minimum sentence for each of the two types of § 924(c) violations, “while making adjustments for the rest of the charges and counts in order to render a reasonable sentence in this case, ” which movant argued was 25 to 35 years in prison. (Sent. Memo, CR Doc. 161 at 2.) Movant also argued that the mandatory minimum sentences were unconstitutional and in conflict with the statutory sentencing directives. (Id. at 6-14.)

In response, the Government responded that the recommended sentence (even though amounting to a life sentence) was not cruel and unusual punishment, even though imposing a severe mandatory penalty for the § 924(c) violations. (CR Doc. 163 at 1-2.) The Government further argued that the mandatory sentences did not conflict with the general sentencing statutes or Booker. (Id. at 3-4.) Finally, the Government argued other factors did not call for leniency, i.e. sentences imposed on co-defendants, rejection of a favorable pre-trial plea offer, and potential post-trial plea offer. (Id. at 4-5.) The Government raised no explicit argument that the court could not reduce the non-mandatory sentences in light of the mandatory ones.

At the sentencing hearing, the court explained:

My sentence as imposed is reasonable. It is required by law, by statute. There is, as has been pointed out to me, no discretion in the court in determining what the sentence of the defendant would be. Congress has made the sentences for these types of violent crimes very serious sentences, very severe sentences, and has required that they be consecutive and, obviously, for a reason, which is to deter such -- the very serious criminal activity in the future.

(R.T. 3/22/10, CR Doc. 192 at 7-8.) The court sentenced Movant to 1, 083 months in prison. Of that 1, 020 months were composed of the consecutive mandatory minimum sentences on the § 924(c) convictions (Counts 3, 5, 7, and 9). The balance of 63 months was imposed on the other offenses and consisted of sentences of 60 months on Count 1, and 63 months on each of Counts 2, 4, 6, and 8, all of which were run concurrently with each other, with the 1, 020 month sentences running consecutive to them. (Sentence, CR Doc. 165.)

Although the trial court did not explicitly reject the argument that it lacked discretion to reduce the non-mandatory sentences based on the mandatory ones, Ninth Circuit precedent directed that conclusion.

The government argues that the district court improperly considered the mandatory consecutive sentence under 18 U.S.C. § 924(c) in formulating the extent of the departure for the underlying assault offense. We agree with the government that under the Sentencing Guidelines, a mandatory consecutive sentence under 18 U.S.C. § 924(c) is an improper factor to consider in making a departure, or fashioning the extent of a departure.

United States v. Working, 287 F.3d 801, 807 (9th Cir. 2002).⁷ Dean effectively overruled Working. Because Dean was decided (2017) after Movant's appeal was concluded (2015), the Ninth Circuit's conclusion that Movant's sentence was “reasonable” was subject to the controlling decision in Working.

7 Indeed, Working was adopted by the Eighth Circuit's ruling in United States v. Hatcher, 501 F.3d 931, 934 (8th Cir. 2007) (quoting Working, 287 F.3d at 807), which was relied on by the Eight Circuit in Dean. United States v. Dean, 810 F.3d 521, 533 (8th Cir. 2015), rev'd and remanded, 137 S.Ct. 1170 (2017).

New Procedural Rule - Even so, this Motion to Vacate is a collateral proceeding, and “new” rules of law ordinarily do not apply in collateral proceedings. Teague v. Lane, 489 U.S. 288, 301 (1989). Under Teague new criminal rules apply retroactively only if they are “substantive.” Respondent agrees that Dean announced a “new” rule but argues that it was “procedural” and not “substantive.” Movant argues it was substantive.

In Garcia v. United States, 923 F.3d 1242 (9th Cir. 2019), the Ninth Circuit addressed an attempt to file a second or successive 2255 motion based on the argument that Dean was a retroactive new rule of constitutional law. The Ninth Circuit ruled that Dean was a procedural rule, not a substantive one.

Garcia contends that Dean announced a substantive rule because it “altered the ‘substantive reach' of § 924(c) by making clear that the consecutive mandatory minimum sentence imposed under its terms ... must be part of the overall ‘sufficient, but not greater than necessary' sentence” under § 3553(a). That argument fails, however, because Dean's rule is permissive, not mandatory: When sentencing a defendant for a predicate offense, a court may, but need not, consider the separate mandatory minimum sentence required by § 924(c). Dean, 137 S.Ct. at 1177. That rule does not “ ‘forbid[ ] criminal punishment of certain primary conduct' ” or “ ‘prohibit[ ] a certain category of punishment for a class of defendants because of their status or offense.' ” Montgomery v. Louisiana, --- U.S. __, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016) (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)).

Garcia, 923 F.3d at 1245.

Movant argues for purposes of appeal that Garcia is wrongly decided. That is a determination this Court cannot make. Rather, this Court must adhere to Garcia and conclude that Dean announced a procedural rule.

Not a Watershed Rule - Under Teague, a new procedural rule is retroactively applicable on collateral review only if it is a “watershed rule.” To fall within this exception, a new rule must meet two requirements: (1) infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction; and (2) the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Tyler v. Cain, 533 U.S. 656, 665 (2001).

Having asserted that Dean is a substantive rule, Movant offers nothing in his Motion or Reply to suggest that Dean was a watershed procedural rule. It is not.

“Dean has nothing to do with conviction accuracy.” Harper v. United States, 792 Fed.Appx. 385, 394 (6th Cir. 2019), cert. denied, 141 S.Ct. 166 (2020). Moreover, “[i]f a new Supreme Court case meaningfully expanding a defendant's right to confront witnesses does not sufficiently implicate the fundamental fairness and accuracy of a proceeding to be a watershed rule, a rule governing what a judge may consider at sentencing cannot either.” Worman v. Entzel, 953 F.3d 1004, 1011 (7th Cir. 2020) (finding Dean to be a non-watershed rule of criminal procedure).

Accordingly, Movant cannot rely on Dean, and the trial court's presumed application of the then-controlling contrary rule in Working does not provide grounds for relief in this collateral proceeding. Ground 9 must be denied.⁸

8 Even though Ground 9 is rejected as a basis for relief, as discussed hereinafter, any resentencing of Movant would be under current law, including Dean.

H. GROUND 10 - CRIMES OF VIOLENCE

In Ground 10 of his Motion to Vacate, Movant argued that none of his predicate offenses qualified as crimes of violence under § 924(c) after the decision in Johnson v. United States, 559 U.S. 133 (2010) (residual clause in definition of crime of violence unconstitutionally vague) and its progeny, including Dimaya v. Lynch, 803 F.3d 1110, 1115 (9th Cir. 2015) (applying Johnson to the analogous provisions in 18 U.S.C. § 16(b)).

Respondent argues in the original, 2017 Response that Petitioner was procedurally barred from raising the claim because Johnson was decided before his direct appeal was finally decided, Johnson was distinguishable as limited to the Armed Career Criminal Act (ACCA) and controlling Ninth Circuit law recognized reckless offenses as sufficient to met the mens rea required for a crime of violence, and both types of predicate offenses qualified as crimes of violence. Respondent further argued Movant could not show cause or prejudice to excuse his procedural default based on ineffective assistance of appellate counsel in failing to raise the claim, because the claim was without merit. (Response, Doc. 13 at 31-39.)

The Court subsequently stayed this case to await various Ninth Circuit and Supreme Court decisions. The last such decision was United States v. Borden, 141 S.Ct. 1817 (June 10, 2021). The Court lifted the stay, allowed Respondent to file a supplemental response to reflect intervening law, and allowed Petitioner to reply to both the original and supplemental responses.

In its Supplemental Response (Doc. 48), Respondent now agrees that under Borden, Petitioner's conviction for aggravated assault with serious bodily injury does not qualify as a crime of violence under § 924(c) because it can be committed recklessly, and therefore the related § 924(c) conviction in Count 3 must be vacated. Respondent argues, however, that aggravated assault with a deadly weapon continues to qualify, citing United States v. Gobert, 943 F.3d 878 (9th Cir. 2019). Respondent argues that the related claim of ineffective assistance of trial counsel in Ground 2(6) continues to be without merit because the controlling law rendered all the claims futile, current law renders the claims on the deadly weapons offenses futile, and in light of the relief urged herein, Movant has not been prejudiced on the serious bodily injury counts. Respondent argues the packeted sentence should be unbundled by being entirely vacated, and Movant should be resentenced on the remaining Counts (1, 2, and 4-9).⁹

9 As noted hereinabove in Section III(B), Respondent's procedural default argument on Ground 10 has been waived.

Movant replies (Doc. 53) agreeing Count 3 must be vacated. But Movant argues Counts 5, 7, and 9 should be vacated because Gobert cannot be reconciled with the subsequent decisions in Stokeling v. U.S., 139 S.Ct. 544 (2019) and Borden (and pre-Gobert decisions by the Ninth Circuit). Thus, Movant argues (at a minimum to preserve the issue for appeal) that Gobert is wrongly decided.

1. Count 3 - Assault with Serious Bodily Injury

The parties are in agreement that Borden requires this Court to vacate Count 3 (assault with serious bodily injury), arising under 18 U.S.C. § 113(a)(6).

Borden held that a criminal offense which requires only a mens rea of recklessness cannot count as a “violent felony” under the elements clause of the ACCA, 18 U.S.C. § 924(e). Although this case does not arise under § 924(e) and its “violent felony” standard, but rather under § 924(c) and its “crime of violence” standard, the courts have largely treated them the same. See e.g. U.S. v. Davis, 139 S.Ct. 2319 (2019) (applying Johnson and the categorial approach applicable to the ACCA and § 924(c)). Neither Movant nor Respondent suggest any basis to distinguish Borden on that basis, and the undersigned finds none. See United States v. Mejia-Quintanilla, 859 Fed.Appx. 834, 836 (9th Cir. 2021) (applying Borden to a conviction under § 924(c)).

Reckless Conduct Included - The parties agree that a conviction for aggravated assault with serious bodily injury can be committed recklessly.

Respondent references the Ninth Circuit's Manual of Model Criminal Jury Instructions, Instruction 8.9, regarding assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). That instruction requires an assault by “intentionally [[striking] [wounding]]” the victim. (Emphasis added.) However, the Comment to the instruction observes that a “defendant can be convicted of assault resulting in serious bodily injury if a battery is proved, ” and that at “common law, criminal battery is shown if the defendant's conduct is reckless.”

Indeed, in United States v. Lewellyn, 481 F.3d 695 (9th Cir. 2007), cited by Respondent, the Ninth Circuit explained the federal definition of “assault.”

Because § 113 does not define “assault, ” we have adopted the common law definitions: (1) “a willful attempt to inflict injury upon the person of another, ” also known as “an attempt to commit a battery, ” or (2) “a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.1976); see also United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991) (same).

Lewellyn, 481 F.3d at 697 (emphasis added) (addressing a violation of § 113(a)(5)). This definition was found to be in line with common law, where “battery did not require intent to injure, only that the offensive touching was willful.” Id. (emphasis added).

Willfulness does not require intentional conduct, only recklessness. In United States v. Loera, 923 F.2d 725 (9th Cir. 1991), in finding drunk driving resulting in a collision to be an assault, the Ninth Circuit had explained:

The term “willful” as used at common law as an element of a general intent crime refers to a volitional act. See W. Clark, Clark's Criminal Law 38 (St. Paul 1894) (“A willful act ... is a voluntary act.”). A voluntary act is one in which the individual has the ability to choose his course of conduct. “The only question is whether the person could have refrained from doing it, or whether he was controlled by some irresistible power. If he could have refrained, the act is voluntary; but, if he was impelled by some irresistible force, it is involuntary.” Id. See also United States v. Baker, 641 F.2d 1311, 1317 (9th Cir.1981) (the term “willful” defined “ ‘as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.' ” (quoting United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974)).

At common law a criminal battery was shown if the defendant's conduct was reckless. F. Wharton, Wharton's Criminal Law § 178 at 296 (C. Torcia 14th ed. 1979). A defendant can be convicted of assault under section 113(f) if a battery is proved. “[A]n assault is an attempted battery and proof of a battery will support conviction of assault.” United States v. Dupree, 544 F.2d 1050, 1052 (9th Cir.1976) (citations omitted).

Loera, 923 F.2d at 728.

It is true that in United States v. Blatchford, CR-16-8085-001-PCT-GMS, 2017 WL 2480703 (D. Ariz. June 7, 2017), a pre-Borden case, Chief Judge Snow observed:

The parties note that some of the older case law in the Ninth Circuit indicates that reckless conduct is sufficient to constitute an assault resulting in serious bodily harm. See United States v. Loera, 923 F.2d 725, 728 (9th Cir. 1991) (“At common law a criminal battery was shown if the defendant's conduct was reckless ... A defendant can be convicted of assault under section 113(f) if a battery is proved.”). That does not change the requirement, however, that there must be an intent to strike or wound, even if the inflicted injury was not intended but only the result of reckless behavior.

Blatchford, 2017 WL 2480703, at *2, n. 5. However, Judge Snow did not identify the source of the contention that the striking or wounding had to be intentional, as opposed to “willful.” Loera requires only that it be “willful.”

Not Divisible - The parties do not discuss the divisibility of the reckless form of assault. The categorical (and modified categorical approach) apply only where a statute lists multiple, alternative elements, and so effectively creates several different crimes. In such instances, if the court, by consulting a limited set of documents, can determine which crime the defendant was convicted of, and that crime qualifies under the statute, then the statute applies and is without any unconstitutional vagueness. Descamps v. United States, 570 U.S. 254, 264 (2013). On the other hand, where a criminal statute contains only a single set of elements, and thus describing only a single offense that can be committed in a variety of ways only some of which qualify under a separate statute, then the separate statute cannot apply without being unconstitutionally vague. Id. at 273-274. In Descamps, the offense was “assault with a weapon” (which could be committed with a gun, a knife, or a tire iron) but the statute being applied required an offense involving a gun. That was deemed to be an indivisible statute.

Here, § 113(a)(6) does not define separate offenses for “intentional” assault and “reckless” assault. It defines only a single offense of “assault, ” which (under Ninth Cicuit law) can be committed with a variety of mental states, including recklessness. Accordingly, the statute is indivisible. And because Borden makes clear that “recklessness” does not suffice to form a crime of violence, an offense under § 113(a)(6) cannot support a conviction under § 924(c).

Accordingly, Ground 10 must be granted as to Count 3, and the conviction under that count must be vacated.

2. Counts 5, 7, 9 -Assault with Dangerous Weapon

The parties disagree whether Movant's convictions for assault with a dangerous weapon pursuant to 18 U.S.C. § 113(a)(3) constitute a crime of violence to support the related convictions under § 924(c) (Counts 5, 7, 9). Respondent relies upon the holding of United States v. Gobert, 943 F.3d 878 (9th Cir. 2019) that § 113(a)(3) is “a crime of violence under § 924(c)(3)(A)'s elements clause.” Id. at 882. (Supp. Resp., Doc. 48 at 5.) Movant acknowledges this Court is generally bound by that holding, but argues that Gobert was wrongly decided under Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), Stokeling v. United States, 139 S.Ct. 544, 554 (2019), and United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013). Movant argues a § 113(a)(3) offense does not qualify as a crime of violence because it can be committed by a “nonviolent, offensive touching with an uncommunicated intent to cause bodily harm, ” and thus does not entail violent physical force. (Reply, Doc. 53 at 9, 12.)

In Gobert, a three judge panel of the Ninth Circuit rejected the contention that § 113(a)(3) did not necessarily require the use or threatened use of violent force because it could be violated by an intentional use of a display of force. The Court relied on various precedent and concluded: “The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which…necessarily entails at least the ‘threatened use of violent physical force' to qualify the offenses as crimes of violence under § 924(c)(3)(A)'s elements clause.” Id. at 882.

Under Gobert, Movant's convictions in Counts 5 through 9 are valid.

It is true that appellate authority can be “undercut by higher authority to such an extent that it has been effectively overruled by such higher authority and hence is no longer binding on district judges and three-judge panels of this court.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003). Even “circuit precedent, authoritative at the time that it issued, can be effectively overruled by subsequent Supreme Court decisions that ‘are closely on point,' even though those decisions do not expressly overrule the prior circuit precedent.” Id.

These principles do not allow a trial court to reject an appellate ruling simply because they deem it wrongly decided, even if by (clearly or otherwise) erroneous applications of preexisting precedent. Thus, to the extent that Movant relies on cases decided before Gobert, this Court must reject his claims. Gobert was decided on November 26, 2019. The cases Movant cites were all decided prior to Gobert. Johnson I was decided March 2, 2010. Stokeling was decided January 15, 2019. Flores-Cordero was decided July 25, 2013.

Accordingly, this Court is bound by Gobert, and can only conclude that Counts 5, 7, and 9 are valid. Accordingly, Ground 10 must be denied with regard to these counts.

I. APPROPRIATE RELIEF

The undersigned has concluded (in accordance with the agreement of the parties) that Movant's conviction on Count 3 must be vacated.

The parties agree that the appropriate relief is for the Court to vacate Movant's sentence on all counts under the sentencing package doctrine and conduct a resentencing on the remaining counts. (Supp. Resp., Doc. 48 at Reply, Doc. 53 at 28.)

Indeed, vacating of a single count calls for vacating the entire sentence, and resentencing on the remaining counts. United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000), as amended (May 22, 2000). “Such ‘unbundling' is often warranted because conviction on the reversed counts may have affected the remaining counts.” United States v. Avila-Anguiano, 609 F.3d 1046, 1049 (9th Cir. 2010).

Accordingly, in addition to vacating the conviction on Count 3, the Court should vacate all of Movant's sentences and resentence Movant on the remaining counts.

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2255 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 Motion to Vacate is brought pursuant to 28 U.S.C. § 2255, and challenges Movant's federal criminal judgment or sentence. The recommendations if accepted will result in Movant's Motion being resolved (at least in part) adversely to Movant. 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 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 § 2255 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.

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 3(b), 4, 5, 6, 7(2), 7(3), 8 and 11 Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) be DISMISSED WITH PREJUDICE.

(B) Grounds 1, 2, 3(a), 7(1), and 9 of the Motion to Vacate (Doc. 1) be DENIED.

(C) Ground 10 of the Motion to Vacate (Doc. 1) be GRANTED to the extent of the relief

(D) Movant's conviction and sentence on Count 3 of the Indictment be VACATED.

(E) Movant's sentence on Counts 1, 2, 4, 5, 6, 7, 8, and 9 be VACATED, and Movant be resentenced on those counts of the Indictment.

(F) 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 (9^th 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.” 40