Jamar Dewayne Greer v. United States of America, No. 2:2012cv02352 - Document 9 (C.D. Cal. 2013)
Court Description: ORDER DENYING 1 PETITIONERS MOTION FOR RELIEF PURSUANT TO 28 U.S.C. 2255 by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.). (lc) Modified on 8/27/2013.(lc).
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Jamar Dewayne Greer v. United States of America Doc. 9 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 v. 14 JAMAR DWAYNE GREER, 15 Defendant. ___________________________ ) ) ) ) ) ) ) ) ) ) Case No. CV 12-02352 DDP T [CR 06-00466 DDP] ORDER DENYING PETITIONER’S MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 [Docket No. 1 ] 16 17 I. BACKGROUND 18 After a jury trial, Petitioner Jamar Dewayne Greer ("Greer" or 19 "Petitioner") was convicted of conspiracy to distribute and possess 20 with intent to distribute cocaine, in violation of 21 U.S.C. §§ 21 841(a)(1), (b)(1)(A)(ii)(II), 846. 22 No. 341.) 23 and the Ninth Circuit affirmed the conviction (the Ninth Circuit 24 Court of Appeals Case No. 09-50120 (the "9th CCA") Dkt. No. 51). 25 Greer petitioned for rehearing en banc and that petition was 26 denied. 27 certiorari with the Supreme Court and that petition was denied as 28 well. (06-CR-00466-DDP-5 ("CR") Dkt. Greer timely appealed his conviction (CR Dkt. No. 401), (9th CCA Dkt. Nos. 58, 59.) Greer filed a petition for (9th CCA Dkt. No. 62.) Dockets.Justia.com 1 On March 20, 2012, Greer filed the instant motion under 28 2 U.S.C. § 2255. 3 failed to allege all elements of the crime because it did not 4 allege an effect on commerce; (2) 21 U.S.C. §§ 841, 846 were 5 unconstitutional as applied him because "his conduct was purely 6 local in nature and should be left to the states to punish"; (3) 7 the court failed to conduct a sufficient inquiry into the contact 8 between jurors and a co-defendant's family member; and (4) his 9 attorneys provided ineffective assistance of counsel (I) by failing Greer claims that (1) the indictment against him 10 to request the court to inquire the jurors about contact, (ii) by 11 failing to object when the court did not conduct the inquiry, (iii) 12 by failing to request a mistrial, and (iv) by failing to raise 13 these issues on appeal. 14 II. 15 (Dkt. No. 1.) LEGAL STANDARD A petitioner may move to vacate, set aside, or correct his/her 16 sentence "upon the ground that the sentence was imposed in 17 violation of the Constitution or laws of the United States, or that 18 the court was without jurisdiction to impose such sentence, or that 19 the sentence was in excess of the maximum authorized by law, or is 20 otherwise subject to collateral attack." 21 any of these grounds exist, the court "shall vacate and set the 22 judgment aside and shall discharge the prisoner or resentence him 23 or grant a new trial or correct the sentence as may appear 24 appropriate." 25 28 U.S.C. § 2255(a). If 28 U.S.C. § 2255(b). Under section 2255, "a district court must grant a hearing to 26 determine the validity of a petition brought under that section, 27 '[u]nless the motions and the files and records of the case 28 conclusively show that the prisoner is entitled to no relief." 2 1 United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) 2 (quoting 28 U.S.C. § 2255) (emphasis and alternation in original). 3 "The district court may deny a section 2255 motion without an 4 evidentiary hearing only if the movant's allegations, viewed 5 against the record, either do not state a claim for relief or are 6 so palpably incredible or patently frivolous as to warrant summary 7 dismissal." United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th 8 Cir. 1998) (quoting United States v. Burrows, 872 F.2d 915, 917 9 (9th Cir.1989)). 10 III. DISCUSSION 11 A. 12 Elements of an offense must be charged in the indictment. Indictment need not allege an effect on commerce. 13 Jones v. United States, 526 U.S. 227, 232 (1999). 14 Congress enacts a statute under its commerce power, "it is not 15 constitutionally obligated to require proof beyond a reasonable 16 doubt that each individual act in the class of activities regulated 17 had an effect on interstate commerce." 18 F.2d 1484, 1492 (10th Cir. 1989). 19 assertion, an effect on commerce is not an element for the crime of 20 possession with intent to distribute cocaine or conspiracy to 21 distribute under 21 U.S.C. §§ 841, 846. 22 Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000) ("To sustain 23 a conviction for possession with intent to distribute cocaine, the 24 government must prove that the defendant (1) knowingly, (2) 25 possessed the cocaine, (3) with intent to distribute it."); United 26 States v. Hall, 551 F.3d 257, 268 n. 13 (4th Cir. 2009) (holding 27 that the elements of a § 846 conspiracy are "(1) an agreement 28 between two or more persons to violate federal law relating to However, when United States v. Lane, 883 Indeed, contrary to Greer's 3 See United States v. 1 controlled substances; (2) knowledge of the essential objectives of 2 the conspiracy; (3) knowing and voluntary involvement therein; and 3 (4) interdependence among the conspirators"). 4 indictment does not require an allegation of the effect on 5 commerce. 6 B. 7 8 9 Therefore, the 21 U.S.C. §§ 841, 846 are constitutional as applied to Greer. Greer also argues that the federal government has no jurisdiction to prosecute him for his "purely local conduct." 10 (Request for Leave to Amend 28 U.S.C. § 2255 Motion, p. 3; Rebuttal 11 to Opposition, p. 2.) 12 established that Congress may constitutionally regulate intrastate 13 drug activity under 21 U.S.C. §§ 801 et seq (the "Controlled 14 Substances Act"). United States v. Visman, 919 F.2d 1390, 1393 15 (9th Cir. 1990). In the instant context, “Congress may regulate 16 those wholly intrastate activities which have an effect upon 17 interstate commerce.” 18 findings that conducts regulated by the Controlled Substances Act 19 have "substantial and direct effect upon interstate commerce." 20 United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995) 21 (citing 21 U.S.C. § 801(3)-(6)). 22 interstate nexus is required in order to establish jurisdiction." 23 United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir. 24 1977). 25 26 C. This argument is without merit. Id. at 1392. It is well Congress has made explicit Therefore, "no proof of The brief contact between the Jurors and a co-defendant's family member was not prejudicial. 27 On August 14, 2008, the government reported to the court that 28 a contact occurred between Alternate Juror No. 1 and the mother of 4 1 a co-defendant Deon Lopez ("Mrs. Lopez") after the jury had begun 2 its deliberations. 3 on August 14, 2008 ("Tr.") at 4:3-19.) 4 that it heard Mrs. Lopez say to Alternate Juror No. 1 that "I'm 5 sure you'd rather be going home now" while Mrs. Lopez and Alternate 6 Juror No. 1 were standing at an elevator outside the courtroom. 7 (Tr. at 4:16-17, 6:2-17.) 8 Alternate Juror No. 1 be excused. 9 17.) (Reporter's Partial Transcript of Proceedings The government reported The government vigorously requested that (Tr. at 5:18-20, 7:6-20, 8:8- In response to the government's concern, the court questioned 10 the Alternate Juror. 11 stated that, although she did not remember exactly what was said, 12 Mrs. Lopez "made some comment about [Alternate Juror No. 1] having 13 to stay" while she was waiting for the elevator. 14 Upon the court's further inquiry, the Alternate Juror revealed that 15 Mrs. Lopez had said something along the lines of "can you guess 16 whose mothers we are" to her and Jurors Nos. 5 and 6 in the 17 lunchroom on an earlier date. 18 Juror No. 1 stated that the conversation in the lunchroom was very 19 brief and "[n]othing about . . . the case." 20 Neither counsel for the defense nor the government made any other 21 inquiry concerning the contact between the jurors and Mrs. Lopez. 22 (Tr. at 11:17-23.) 23 (Tr. at 9:9-12:17.) Alternate Juror No. 1 (Tr. at 9:9-25.) (Tr. at 10:4-11:16.) Alternate (Tr. at 10:20-11:1.) The government argued that the contact between Mrs. Lopez and 24 jurors negatively affected the government's ability to receive a 25 fair trial. 26 between a defendant's family members and jurors personalized the 27 deliberative process because the jurors would be likelier to 28 consider the impact of a conviction not only on the defendant, but Specifically, the government argued that contact 5 1 on his family members as well. 2 19:11-21, 28:17-29:25.) 3 court excuse Jurors Nos. 5 and 6 and Alternate Juror No. 1 and 4 substitute alternate jurors to whom no communications had been 5 made. 6 Public Defender's Officer concerning the situation and expressly 7 objected to the government's request, stating that the jurors 8 should not be replaced, but instead, an admonition should be given 9 to the jury. 10 (Tr. at 7:6-20, 8:8-17, 13:2-11, As such, the government requested that the (Tr. at 13:19-23.) Greer's counsel conferred with the (Tr. at 5:23-25, 15:10-22, 17:23-18:7, 25:21-26:4.) The court acknowledged the impropriety of the contact between 11 Alternate Juror No. 1 and Mrs. Lopez at the elevator, but the court 12 found the communication to be "spontaneous," "friendly," and 13 "unplanned." 14 Lopez's contact with the jurors in the lunchroom, although the 15 court agreed that personalization with a family member of a 16 defendant might make it tougher for a jury to convict (Tr. 19:22- 17 20:1, 27:12-15), the court found the conversation in the lunchroom 18 was less problematic because Mrs. Lopez was present throughout the 19 entire trial and the jurors had already known that she was the 20 mother of a defendant. 21 court found that an admonition to the jury would be sufficient to 22 remedy the issue. 23 agreement and stated: "I think that's a good suggestion. . . . It's 24 a good resolution." 25 (Tr. at 4:20-21, 7:5.) Furthermore, concerning Mrs. (Tr. at 7:21-22, 22:9-12.) (Tr. at 31:6-32:2.) Therefore, the Greer's counsel was in (Tr. at 32:11,15.) The exact language of the admonition was discussed and debated 26 at length until all parties reached an agreement. 27 53:19.) 28 jury: (Tr. at 39:8- Ultimately the court gave the following instruction to the 6 1 2 3 4 5 6 7 8 9 10 It's come to my attention that there may have been some brief communication between some member of the defendants' families and some jurors. There should be [sic] no contact between the jury and members of the defendants's [sic] families or law enforcement officers. And I know sometimes it's difficult, but you've got to try to avoid that. And I am going to reiterate to you what I told you previously. You must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. The punishment provided by law for these crimes is for the Court to decide and you may not consider punishment in deciding whether the government has proven its case against the defendants beyond a reasonable doubt. In following my instructions, you must follow all of them and not single out some and ignore others. They're all equally important. 11 (Tr. at 67:18-68:12.) 12 Greer now argues that the court should have asked Alternate 13 Juror No. 1 whether she relayed to other jurors her private 14 conversation with Mrs. Lopez and whether the communications 15 affected her ability to be fair and impartial. (Motion to Vacate 16 pp. 7-8.) Greer also argues that the court should have questioned 17 Jurors Nos. 5 and 6 concerning their contact with Mrs. Lopez in the 18 lunchroom. (Id. p. 8.) 19 "Generally speaking, '[p]rivate communications, possibly 20 prejudicial, between jurors and third persons, or witnesses, or the 21 officer in charge, are absolutely forbidden, and invalidate the 22 verdict, at least unless their harmlessness is made to appear.'" 23 Tong Xiong v. Felker, 681 F.3d 1067, 1076 (9th Cir. 2012) (quoting 24 Mattox v. United States, 146 U.S. 140, 142 (1892)). "However, this 25 does not mean that all extraneous information is per se 26 prejudicial." Id. The Supreme Court has recognized that "it is 27 virtually impossible to shield jurors from every contact or 28 7 1 influence that might theoretically affect their vote." United 2 States v. Olano, 507 U.S. 725, 738 (1993) (quoting Smith v. 3 Phillips, 455 U.S. 209, 217 (1982)). 4 contacts between witnesses and jury members—while passing in the 5 hall or crowded together in an elevator—may be inevitable." 6 Caliendo v. Warden of California Men's Colony, 365 F.3d 691, 696 7 (9th Cir. 2004) (citation omitted). 8 communication with a juror was "de minimis," "the defendant must 9 show that the communication could have influenced the verdict Indeed, "certain chance Thus, when an unauthorized 10 before the burden of proof shifts to the prosecution." 11 (emphasis added). 12 trigger the presumption of prejudice." 13 trial court has considerable discretion in determining whether to 14 hold an investigative hearing on allegations of jury misconduct or 15 bias and in defining its nature and extent." 16 Olano, 62 F.3d 1180, 1192 (9th Cir. 1995). 17 Id. "A defendant must offer sufficient evidence to Id. (citation omitted). "A United States v. A "casual, time-of-the-day greeting" in the men's room between 18 a juror and a federal agent for the prosecution was found to be de 19 minimis communication. 20 04 (10th Cir. 1987). 21 room during deliberations without the court's permission to set up 22 a video machine to replay a videotape of a witness' interrogation 23 was also found to be "innocuous." 24 1297, 1299 (9th Cir. 1994). 25 encountered a defendant and his wife as the juror left a courthouse 26 elevator. 27 that she had a brother by the same name as the juror. 28 juror acknowledged that, although he had never met her brother, United States v. Day, 830 F.2d 1099, 1103- An investigating officer's entering the jury 62 F.3d at 1192. Lee v. Marshall, 42 F.3d 1296, For example, in Olano, one juror The defendant's wife told the juror 8 Id. The 1 their mail occasionally was mixed up. 2 was brought to the district court's attention, the district court 3 re-admonished the jury not to speak with the parties and did not 4 excuse the juror or entertain a motion for mistrial sua sponte. 5 Id. 6 its discretion in not entertaining sua sponte a motion for mistrial 7 because, although inappropriate, the juror's conversation with the 8 defendant's wife was brief, and it did not relate to the trial. 9 Id. 10 Id. When the conversation The Ninth Circuit held that the district court did not abuse Indeed, "mere contact or association between a witness . . . 11 and a member or members of the jury [does not render] the trial 12 unfair in the constitutional sense; more must appear to affect the 13 validity of a conviction." 14 Cir. 1971). 15 379 U.S. 466 (1965). 16 murder after a three-day jury trial. 17 sheriffs who gave key testimony leading to the defendant's 18 conviction were in close and continual association with the jurors 19 in and out of the courthouse during the three-day trial: the 20 deputies ate with the jurors, freely conversed with them, did 21 errands for them, and drove them to their lodgings each night. 22 at 467-68. 23 relationship between the deputies and the jurors was prejudicial 24 because the contact was not a "brief encounter, but [] a continuous 25 and intimate association" "which could not but foster the jurors' 26 confidence in those who were their official guardians during the 27 entire period of the trial. 28 much confidence the jury placed in these two witnesses." Helmick v. Cupp, 437 F.2d 321, 322 (9th The "more" was found in Turner v. State of Louisiana, In Turner, the defendant was convicted of Id. at 466. Two deputy Id. The Supreme Court found that the close and continual And Turner's fate depended upon how 9 Id. at 1 473-74. 2 fair trial by an impartial jury. 3 Thus, the Court held that Turner had been denied right to Here, the contact between the Jurors and Mrs. Lopez should be 4 characterized as merely a chance encounter and nothing more. 5 Similar to the conversation between the juror and the defendant's 6 wife in Olano, 62 F.3d at 1192, the conversation between the Jurors 7 here and Mrs. Lopez was also brief. 8 made at lunch and by the elevator had some relationship to the 9 case, but they were tangentially related and, as the Court stated, Unlike Olano, the statements 10 innocuous. 11 and insufficient to trigger the presumption of prejudice. 12 830 F.2d at 1103-04; Caliendo, 365 F.3d at 696. 13 offers no explanation as to how Mrs. Lopez's contact with the 14 jurors prejudiced him. 15 association among the deputies and jurors in Turner that helped 16 build up the jurors' confidence in the deputies' testimony, 379 17 U.S. at 473-74, Mrs. Lopez's brief encounter with the Jurors did 18 not have an effect on the credibility of any witness. 19 did not testify at Greer's trial; therefore, her credibility would 20 not have an impact on Greer's conviction. 21 evidence tending to show that there existed a continuous and 22 intimate association between the Jurors and his co-defendant's 23 mother that would unfairly prejudice him in receiving a fair trial. 24 Greer does not claim that he would have been acquitted if the court 25 had conducted a more extensive inquiry into the contact between the 26 jurors and Mrs. Lopez. 27 that would show how the communication influenced his guilty Such spontaneous and friendly comments are de minimis See Day, In addition, Greer Unlike the continuous and intimate Mrs. Lopez Greer provides no As Greer has failed to offer any evidence 28 10 1 verdict, there is no presumption of prejudice. 2 F.3d at 696. 3 D. 4 5 See Caliendo, 365 Greer's claim of ineffective assistance of counsel must fail. Greer asserts that both his trial and appellate counsel should 6 have raised the issues he is arguing in the instant motion and 7 their failure to do so constituted ineffective assistance of 8 counsel. 9 To prevail on a claim of ineffective assistance of counsel, a 10 convicted defendant must show both (1) that counsel's performance 11 was deficient; and (2) that "the deficient performance prejudiced 12 the defense." 13 The defendant bears the burden of establishing both prongs of the 14 claim of ineffective assistance of counsel. 15 Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). 16 defendant fails to satisfy either prong, the claim of ineffective 17 assistance of counsel must fail. 18 order to show prejudice, 19 reasonable probability that, but for counsel's unprofessional 20 errors, the result of the proceeding would have been different." 21 Id. at 694; Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998). 22 reasonable probability is less than a preponderance of the evidence 23 and is a probability sufficient to undermine confidence in the 24 outcome. 25 Strickland, 466 U.S. at 694. 26 Strickland v. Washington, 466 U.S. 668, 687 (1984). United States v. If the Strickland, 466 U.S. at 687. In a defendant must show that "there is a See Kyles v. Whitley, 514 U.S. 419, 434 (1995); "[A] court need not determine whether counsel's performance 27 was deficient before examining the prejudice suffered by the 28 defendant as a result of the alleged deficiencies." 11 Id. at 697. A 1 Here, Greer argues that counsel was ineffective for not making 2 the arguments the Court rejected above. 3 Greer has not shown prejudice, and his ineffective assistance of 4 counsel claim fails as a result. 5 IV. 6 For the reasons discussed, CONCLUSION For the foregoing reasons, the 2255 motion is DENIED. 7 8 IT IS SO ORDERED. 9 10 11 Dated: August 27, 2013 DEAN D. PREGERSON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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