Cabaccang v. United States of America, No. 1:2008cv00015 - Document 2 (D. Guam 2010)

Court Description: Opinion and Order denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) and Order Re: Certificate of Appealability. Signed by Chief Judge Frances M. Tydingco-Gatewood on 7/28/2010. (fad, )

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1 2 3 4 5 6 DISTRICT COURT OF GUAM 7 8 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 12 vs. ROY TOVES CABACCANG, 13 Criminal Case No. 97-00095 Civil Case No. 08-00015 OPINION AND ORDER RE: MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND ORDER RE: CERTIFICATE OF APPEALABILITY Defendant. 14 15 Before the court is Petitioner Roy Toves Cabaccang s 28 U.S.C. § 2255 Motion to 16 Vacate, Set Aside, or Correct Sentence.1 See Docket No. 512. He is proceeding pro se in this 17 18 19 20 21 22 23 24 25 1 The Petitioner has requested an evidentiary hearing on his motion. Under 28 U.S.C. § 2255, an evidentiary hearing shall be held [u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief. As stated in United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980): The standard is essentially whether the movant has stated a claim on which relief could be granted, Moore v. United States, 571 F.2d 179, 184 (3rd Cir. 1978) or, where affidavits have been submitted, whether summary judgment for the government is proper. See also Fed.R.Civ.P. 12(b), 56. . . . The Ninth Circuit s rule is that 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). 26 27 28 Hearst, 638 F.2d at 1194. The Ninth Circuit described the standard as follows: Where a prisoner s motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required. United States v. Quan, 789 F.2d 711, 715 (9th Cir. United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 case. See Docket No. 512. After reviewing the parties submissions, as well as relevant caselaw 2 and authority, the court HEREBY DENIES the motion and enters a final order adverse to the 3 Petitioner, and DENIES a certificate of appealability pursuant to Rule 11 of the Rules Governing 4 Section 2255 Proceedings for the United States District Courts. 5 I. PROCEDURAL AND FACTUAL BACKGROUND 6 The Petitioner Roy Toves Cabaccang ( the Petitioner ), with his brothers James Toves 7 Cabaccang and Richard Toves Cabaccang, were indicted on May 9, 1997 in the District Court of 8 Guam on numerous charges relating to a drug trafficking ring that involved the transport of 9 methamphetamine from California to Guam in the early and mid-1990s.2 After a lengthy jury 10 trial, the three brothers were convicted of all the charges against them. The Petitioner was 11 sentenced to life imprisonment for Counts I, V, VI, IX, X and XI. The District Court vacated 12 the convictions related to Counts II and III as they were lesser included offenses of Count I, 13 pursuant to the United States Supreme Court s holding in Rutledge v. United States, 517 U.S. 14 292 (1996). See Docket No. 410. 15 Thereafter, the Petitioner and his brothers appealed their convictions. They raised 16 numerous grounds for reversal, including inter alia, the argument that the transport of drugs 17 from California to Guam did not constitute importation, insufficiency of evidence, ineffective 18 19 20 21 22 23 24 25 26 27 28 1986) (citing Farrow v. United States, 580 F.2d 1339, 1360-61 (9th Cir. 1978) (en banc)). Based on the analysis herein, the Petitioner s motion is no more than conclusory allegations, unsupported by facts and refuted by the record. United States v. Quan, 789 F.2d 711, 715. Accordingly, his request for an evidentiary hearing is denied. 2 In a twelve-count Amended Indictment, Roy was charged with Continuing Criminal Enterprise (Count I), Conspiracy to Distribute Methamphetamine (Count II), Conspiracy to Import Methamphetamine (Count III), Conspiracy to Launder Money Instruments (Count IV), Importation of Methamphetamine (Count V), Possession of Methamphetamine with Intent to Distribute (Count VI), Possession and Receipt of a Firearm by a Felon (Counts VII, VIII and IX), and Attempted Importation of Methamphetamine (Counts X, XI, and XII). Richard was charged with Conspiracy to Distribute Methamphetamine (Count II), Conspiracy to Import Methamphetamine (Count III), Conspiracy to Launder Money Instruments (Count IV), and Importation of Methamphetamine (Count V). James was charged with Conspiracy to Distribute Methamphetamine (Count II), Conspiracy to Import Methamphetamine (Count III), and Conspiracy to Launder Money Instruments (Count IV). Page 2 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 assistance of counsel, and erroneous jury instructions. A three-judge panel affirmed the 2 convictions in an unpublished decision. See United States v. Cabaccang, 16 Fed. Appx. 566, 3 568, 2001 WL 760553 (9th Cir. 2001). The panel later issued a supplemental unpublished 4 opinion, addressing the Petitioner s and his brothers challenges to their convictions based on 5 Apprendi v. New Jersey, 530 U.S. 466 (2000), and again affirming the convictions. See United 6 States v. Cabaccang, 36 Fed. Appx. 234, 2002 WL1192886 (9th Cir. 2002). 7 The Petitioner and his brothers then sought a rehearing, which was granted by the Ninth 8 Circuit in United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003) (Cabaccang I). In 9 Cabaccang I, the Ninth Circuit examined the argument of whether the transport of drugs on a 10 nonstop flight from one location in the United States (California) to another (Guam) constituted 11 importation within the meaning of 21 U.S.C. § 952(a), when the drugs had traveled through 12 international airspace en route to Guam. Id. at 624. The Ninth Circuit agreed with the 13 Petitioner s argument, stating that its holding addresses those cases in which the undisputed 14 evidence shows that the nonstop flight on which the defendant transported drugs departed and 15 landed in the United States. Id. at 635. As to the Petitioner, the Ninth Circuit reversed the 16 importation related-convictions; specifically, Conspiracy to Import Methamphetamine (Count 17 III), Importation of Methamphetamine (Count V), and Attempted Importation of 18 Methamphetamine (Counts X, XI, and XII). See id. at 637. In addition, the Ninth Circuit 19 remanded the issue of whether the Petitioner s conviction of continuing criminal enterprise 20 (Count I) could stand in light of the reversal of the importation counts. Id. 21 The Petitioner then requested clarification of the Ninth Circuit s remand as to his 22 conviction and sentence of Possession of Methamphetamine with Intent to Distribute (Count VI), 23 as well as his brothers convictions and sentences of conspiracy to distribute methamphetamine. 24 In ruling on the request for clarification, the Ninth Circuit granted the remand as to the 25 Petitioner s possession charge (Count VI), but denied remand as to his brothers charges. See 26 United States v. Cabaccang, 341 F.3d 905 (9th Cir. 2003) (Cabaccang II). 27 28 On remand, the Petitioner and his brothers were resentenced by the District Court of Guam on May 6, 2005. See Docket Nos. 494 and 495. The court vacated the Petitioner s Page 3 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 conviction on Count I, and imposed a sentence of life imprisonment as to Count II, and twenty 2 years of imprisonment as to Count VI. See Docket No. 494, p. 51. The court on remand also 3 imposed a term of ten years supervised release, to follow the sentence in Count VI. See Docket 4 No. 494, p. 51. The Petitioner again appealed. The Ninth Circuit affirmed the Petitioner s 5 conviction on June 26, 2007. See United States v. Cabaccang, 481 F.3d 1176 (9th Cir. 2007) 6 (Cabaccang III). Docket No. 506. The Petitioner sought certiorari from the United States 7 Supreme Court. The Court denied his petition on October 1, 2007. See Docket No. 521, Exh. 6. 8 The Petitioner timely filed the instant § 2255 motion in this court on October 1, 2008.3 9 See Docket No. 512. The Government filed its response to the motion on January 29, 2009, and 10 a supplemental response on January 30, 2009. See Docket Nos. 521 and 522. Subsequently, the 11 Petitioner filed his memoranda of law and authorities in support of his motion on February 25, 12 2009. See Docket No. 525. 13 II. DISCUSSION 14 In his § 2255 motion, the Petitioner challenges the representation by his trial counsel, 15 resentencing counsel, and appellate counsel in his first and second appeal. The court addresses 16 the following claims of ineffective assistance of counsel: 17 1. 18 Whether the failure of resentencing counsel to request dismissal of Count II (Conspiracy), and the failure of appellate counsel to argue this error on appeal, constitutes ineffective assistance of counsel 19 20 21 22 23 24 25 26 27 28 3 The court notes that the Petitioner filed motions for extension of time to file his § 2255 motion, as the correctional facility was placed in lockdown from June 20, 2008 to September 7, 2008 due to an institution emergency. See Docket Nos. 508 and and 510. An extension of time however, is not necessary and the court finds these motions to be moot. Because the Petitioner sought certiorari review from the United States Supreme Court, the § 2255 petition had to be filed within one year of either the conclusion of direct review by the highest court, including the United States Supreme Court, to review the judgment or the expiration of the time to seek such review. Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001); see also United States v. Garcia, 210 F.3d 1058 (9th Cir. 2000). The United States Supreme Court denied the Petitioner s petition for certiorari on October 1, 2007. His § 2255 motion needed to be filed within one year of this date. Although his motion herein was received by the court on October 1, 2008, it is clear this motion was given to prison officials for mailing, and thus, under Houston v. Lack, 487 U.S. 266 (1988), his motion is presumed to be filed when given to prison officials for mailing. Page 4 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 2. Whether trial counsel s failure to challenge the jury instruction relating to Count I was ineffective assistance of counsel 3. Whether trial counsel s failure to request a change of venue amounts to ineffective assistance of counsel 4. Whether trial counsel s failure to challenge the amount of drugs and drug proceeds established ineffective assistance of counsel 5. Whether trial counsel s failure to present witnesses constituted ineffective assistance of counsel 6. Whether trial counsel s failure to request dismissal of one charge was ineffective assistance of counsel 7. Whether trial counsel s failure to explore the possibility of a plea agreement established ineffective assistance of counsel 8. Whether trial counsel s failure to request jury sequestration amounts to ineffective assistance of counsel 9. Whether trial counsel s failure to object to the prosecutor s statements to the jury regarding the special allegations constitutes ineffective assistance of counsel 10. Whether trial counsel s failure to elicit certain testimony from a Government witness amounts to ineffective assistance of counsel 11. Whether trial counsel s failure to request a mistrial after certain media reports constitutes ineffective assistance of counsel 12. Whether trial counsel s failure to investigate and properly prepare for trial amounts to ineffective assistance of counsel 13. 1 Whether counsels failure to argue that the original sentence was unconstitutional proved to be ineffective assistance of counsel 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 See Docket No. 525. In its response, the Government contends dismissal of grounds 1, 2, 6, 7, 9, 10, and 13 21 because they are meritless in light of the law and the record. See Docket No. 521. The 22 Government suggested that the Petitioner be required to state with particularity any facts that 23 support grounds 3, 4, 5, 8, 11 and 12, and if he is unable to do so, then the court should dismiss 24 these grounds as well. See id. 25 A. The law on ineffective assistance of counsel 26 The Petitioner argues that the performance of his counsel during the trial, resentencing, 27 and first and second appeal were so ineffective that, in essence, he was denied his constitutional 28 right to counsel. The law regarding ineffective assistance of counsel is well settled. A twoPage 5 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 prong test has been articulated in Strickland v. Washington, 466 U.S. 668 (1984), which states 2 that to establish a claim of ineffective assistance of counsel, a petitioner must show both 3 deficient performance by counsel (the incompetence prong ), and that such deficient 4 performance prejudiced his defense (the prejudice prong ). Id. at 687. 5 To demonstrate deficient performance by his counsel, or the incompetence prong, the 6 Petitioner must show his counsel s performance was outside the wide range of professional 7 competent assistance. Id. at 690. A convicted defendant making a claim of ineffective 8 assistance must identify the acts or omissions of counsel that are alleged not to have been the 9 result of reasonable professional judgment. Id. at 690. He must show that his counsel s 10 11 performance failed to meet an objective standard of reasonableness. Id. at 689. Under the prejudice prong, the Petitioner must show that there is a reasonable 12 probability that, but for counsel s unprofessional errors, the result of the proceeding would have 13 been different. Id. at 694. That is, he must demonstrate that counsel s errors were so serious as 14 to deprive [him] of a fair trial. Id. at 687. An error by counsel, even if professionally 15 unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error 16 had no effect on the judgment. Id. at 691. 17 To succeed on a claim of ineffective assistance of counsel, a petitioner must satisfy both 18 prongs of the Strickland test. See id. at 700. However, the court s analysis of an ineffective 19 assistance of counsel claim does not require the mechanical application of the standards 20 articulated in Strickland. Id. at 696. The Strickland Court explained: 21 22 23 24 25 [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result. 26 Id. at 697. Furthermore, in evaluating a claim of ineffective assistance of counsel, the court 27 should recognize that counsel is strongly presumed to have rendered adequate assistance and 28 Page 6 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. 2 As stated by the Ninth Circuit, we indulge a strong presumption that counsel s conduct falls 3 within the wide range of reasonable professional assistance; that is, the defendant must overcome 4 the presumption that, under the circumstances, the challenged action might be considered sound 5 trial strategy. Jones v. Ryan, 583 F.3d 626, 636-37 (9th Cir. 2009) (quoting Strickland, 466 6 U.S. at 689 (citation and quotation marks omitted)). A fair assessment of attorney performance 7 requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct 8 the circumstances of counsel s challenged conduct, and to evaluate the conduct from counsel s 9 perspective at the time. Strickland, 466 U.S. at 689. 10 Thus, the court must examine the merits of each of the Petitioner s claims of ineffective 11 assistance of counsel to determine whether he has made a showing of deficient performance and 12 prejudice, and whether he has overcome the strong presumption that counsel has provided him 13 with adequate assistance. 14 1. Whether the failure of resentencing counsel to request dismissal of Count 15 II (Conspiracy), and the failure of appellate counsel to argue this error on appeal, 16 constitutes ineffective assistance of counsel 17 The District Court appointed counsel to represent the Petitioner during his resentencing 18 proceeding ( resentencing counsel ). See Docket No. 445. Subsequently, the Ninth Circuit 19 appointed another attorney to represent the Petitioner in his second appeal ( appellate counsel ). 20 See Docket No. 503. The Petitioner challenges the performance of both these attorneys, arguing 21 they were ineffective. First, he contends resentencing counsel should have requested dismissal 22 of Count II (Conspiracy) after the Ninth Circuit vacated Count I (Continuing Criminal 23 Enterprise), and should have objected to the court s use of its findings of quantity arising from 24 Count I during the resentencing on Count II. Second, he argues that his appellate counsel was 25 ineffective in failing to raise these arguments. According to the Government, resentencing 26 counsel was not incompetent in not making this request, as the motion to dismiss would have 27 been denied. The Government does not address the Petitioner s contention as to the failure of 28 appellate counsel to make this argument in the second appeal. Page 7 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence a. Whether the performance of resentencing counsel was ineffective 1 2 Contrary to the Petitioner s contention, it is undisputed that the Ninth Circuit did not 3 vacate his conviction on Count I. Rather, the Ninth Circuit in Cabaccang I remanded the case to 4 the District Court for a determination of whether the conviction of Count I could stand in light of 5 the reversal of the importation counts. See Cabaccang I, 332 F.3d 622. On remand, it was the 6 District Court that vacated his conviction on Count I during the resentencing hearing. See 7 Docket No. 495, Transcript of Proceedings, May 6, 2005, p. 27. While his arguments are 8 confusing, this court must interpret the Petitioner s pro se pleadings liberally. See Boag v. 9 MacDougall, 454 U.S. 364, 365 (1982) (per curiam). Therefore, this argument will be 10 construed as a claim of ineffective assistance of resentencing counsel for failing to seek 11 dismissal of Count II after the resentencing court had vacated the conviction of Count I, and for 12 failing to object to the use of drug quantity findings relating to Count I during the resentencing 13 hearing on Count II. 14 As noted above, the Petitioner must satisfy both the incompetence prong and the 15 prejudice prong to succeed on his claim of ineffective assistance of counsel. In this case, he 16 argues that resentencing counsel was ineffective in failing to seek dismissal of Count II. The 17 Petitioner does not discuss the grounds resentencing counsel failed to raise during the 18 resentencing hearing in support of dismissal of Count II. Indeed, there are no such grounds that 19 would warrant dismissal of Count II. The Petitioner was convicted of Count II, but because 20 Count II is a lesser included offense of Count I, the District Court entered final judgment only on 21 the greater offense (Count I) and vacated the lesser included offense (Count II) as instructed 22 by the United States Supreme Court in Rutledge, 517 U.S. 292. 23 The Ninth Circuit in Cabaccang III held that it was proper for the court on remand to 24 reinstate the Petitioner s conviction as to Count II and to sentence him on that count: [T]he 25 district court correctly reinstated Roy s previously-vacated conspiracy conviction [on Count II] 26 after vacating his CCE conviction [on Count I] on grounds that did not affect the lesser-included 27 conspiracy conviction. Cabaccang III, 481 F.3d at 1184. Because there were no grounds to 28 support an argument by Petitioner s counsel that the jury s conviction of Count II should be Page 8 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 dismissed, resentencing counsel s performance was not deficient when he did not request 2 dismissal. The Petitioner has not overcome the strong presumption that counsel s conduct falls 3 within the wide range of reasonable professional assistance, Strickland, 466 U.S. at 689, and 4 consequently, he fails to satisfy the incompetence prong of the Strickland test. 5 Furthermore, even assuming arguendo that counsel requested dismissal of Count II 6 during the resentencing hearing, the outcome of the resentencing hearing would not have been 7 different. The Ninth Circuit did not conclude that when a conviction on a greater offense is 8 reversed, the district court on remand is to dismiss the lesser included offense. Rather, the Ninth 9 Circuit held it was the correct outcome for the district court to reinstate the conviction of the 10 lesser included offense. See Cabaccang III, 481 F.3d at 1183. This is precisely what the 11 resentencing court did. Therefore, the Petitioner is also unable to satisfy the prejudice prong 12 because the outcome of the resentencing hearing would not have been different. 13 Next, the Petitioner argues that resentencing counsel s performance was deficient 14 because he failed to object to the resentencing court s use of its findings of drug quantity arising 15 from Count I when the court imposed his sentence in Count II. He argues that the finding [of 16 drug quantity] on Count I is specific to that count and that the findings from Count I should 17 not have been allowed to form the basis for the life sentence on Counts II and VI. See Docket 18 No. 525, p. 22. The Petitioner had already raised this precise argument, without success, in his 19 second appeal. The Petitioner had argued that the District Court erroneously relied on jury 20 findings relating to Count I in imposing his Count II sentence. Cabaccang III, 481 F.3d at 21 1184. The Ninth Circuit rejected his argument, stating: 22 23 24 25 26 When the jury found Roy guilty of Count I, CCE, the jury also found that the violations referred to in Count I involved at least 3,000 grams of methamphetamine, or at least 30,000 grams of mixture or substance containing a detectable amount of methamphetamine. Count II was alleged in the indictment to be one of the violations constituting the CCE [in Count I]. The jury verdict form therefore provides on its face that the drug quantity finding in Count I applies to each of the other counts. We agree with the careful reasoning of the district court in concluding that the special allegation findings were not tainted by the importation offenses. . . . 27 .... 28 Page 9 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 2 Whether or not the drugs were imported in the legal sense does not affect the jury s finding that Roy s conduct all of which came within the scope of the conspiracy charge involved at least 3,000 grams of methamphetamine. 3 Cabaccang III, 481 F.3d at 1184-85. It is not ineffective assistance of counsel when an attorney 4 does not make an argument that would not have been successful, Morrison v. Estelle, 981 F.2d 5 425, 429 (9th Cir.1992), or when counsel fails to make a futile motion. See James v. Borg, 24 6 F.3d 20, 27 (9th Cir. 1994). Based on the Ninth Circuit s analysis in Cabaccang III (the 7 Petitioner s second appeal), even if resentencing counsel had made this argument during the 8 resentencing hearing, this argument would eventually have been rejected. The failure to raise a 9 meritless legal argument does not constitute ineffective assistance of counsel. Bauman v. 10 United States, 692 F.2d 565, 572 (9th Cir. 1982). Therefore, the Petitioner has failed to satisfy 11 the incompetence prong under Strickland. In sum, the performance of counsel during 12 resentencing has not been proven to be ineffective. 13 b. Whether the performance of appellate counsel was ineffective 14 The Petitioner also argues that appellate counsel was ineffective in failing to argue in the 15 second appeal that it was error for the trial court to use the findings from Count I in imposing the 16 sentence in Count II. The Government does not address this argument. 17 The Petitioner s argument is without merit and is contradicted by the record. The Ninth 18 Circuit addressed this very argument in the Petitioner s second appeal, and soundly rejected it, 19 stating: Whether or not the drugs were imported in the legal sense does not affect the jury s 20 finding that Roy s conduct all of which came within the scope of the conspiracy charge 21 involved at least 3,000 grams of methamphetamine. See Cabaccang III, 481 F.3d at 1185. 22 Therefore, even if counsel had made this argument, the outcome would not have been different. 23 The Petitioner fails to show that he was prejudiced by the performance of appellate counsel. 24 [A] court need not determine whether counsel s performance was deficient before 25 examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it 26 is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 27 which we expect will often be so, that course should be followed. Strickland, 466 U.S. at 697. 28 Accordingly, the court will follow the course set forth in Strickland, and finds that the Page 10 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 2 3 4 Petitioner has not demonstrated ineffective assistance of counsel. 2. Whether trial counsel s failure to challenge the jury instruction relating to Count I was ineffective assistance of counsel Petitioner next argues trial counsel was ineffective when he did not challenge the jury 5 instruction relating to Count I, specifically, the instruction that stated in order to find him guilty 6 of the offense in Count I, the jury was required to make a finding that the defendant committed 7 three other drug-related crimes. In analyzing this argument, the court must indulge a strong 8 presumption that counsel s conduct falls within the wide range of reasonable professional 9 assistance. Strickland, 466 U.S. at 689. The Petitioner bears the heavy burden of proving that 10 counsel s assistance was neither reasonable nor the result of sound trial strategy. Matylinsky v. 11 Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (quoting Murtishaw v. Woodford, 255 F.3d 926, 939 12 (9th Cir. 2001)). The Government asks the court to reject this claim, and points out that the 13 instruction was approved by the Ninth Circuit as Model Criminal Jury Instruction 9.26. Indeed, 14 this instruction is still in use as the Ninth Circuit s model criminal jury instruction for 15 Continuing Criminal Enterprise. See 9th Cir. Model Criminal Jury Instructions. 16 An ineffective assistance of counsel claim based on counsel s failure to object to a jury 17 instruction requires a showing of prejudice. James, 24 F.3d at 27. On remand, the District 18 Court vacated the conviction onCount I, and the Judgment ultimately entered against the 19 Petitioner does not reflect that he was convicted or sentenced on Count I. Therefore, because the 20 Judgment makes no reference to Count I at all, the Petitioner cannot demonstrate that he was 21 prejudiced when trial counsel failed to object to the use of the jury instruction on Count I. As set 22 forth by the Ninth Circuit in James, because the Petitioner makes no showing of prejudice, he 23 cannot show that trial counsel was ineffective in failing to object to the jury instruction on Count I. 24 See id. Accordingly, the court finds there was no ineffective assistance of counsel in this regard. 25 3. Whether trial counsel s failure to request a change of venue amounts to 26 ineffective assistance of counsel 27 The Petitioner contends that it was error for trial counsel to fail to request a change of 28 venue based on the media coverage of the case, because it was impossible to seat an impartial Page 11 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 jury and the jury was biased against him. The Government argues that the Petitioner has not met 2 his burden of proving that a change of venue was justified, and requests that this ground for 3 relief be denied. 4 Due process requires a change of venue be granted when a trial court cannot seat an 5 impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere. 6 Turner v. Calderon, 281 F.3d 851, 865 (9th Cir. 2002). The Ninth Circuit require[s] a 7 petitioner to show that prejudice should be presumed or that actual prejudice existed. Id. 8 Further, the court has held that: Prejudice is presumed only in extreme instances when the 9 record demonstrates that the community where the trial was held was saturated with prejudicial 10 and inflammatory media publicity about the crime. Daniels v. Woodford, 428 F.3d 1181, 1211 11 (9th Cir. 2005) (quoting Ainswoth v. Calderon, 138 F.3d 787, 795 (9th Cir. 1998) as amended 12 152 F.3d 1223). The court articulated the following test: 13 14 15 Three factors should be considered in determining presumed prejudice: (1) whether there was a barrage of inflammatory publicity immediately prior to trial, amounting to a huge ... wave of public passion ; (2) whether the news accounts were primarily factual because such accounts tend to be less inflammatory than editorials or cartoons; and (3) whether the media accounts contained inflammatory or prejudicial material not admissible at trial. 16 Id. The Petitioner does not show any specific facts for this court to conclude that prejudice 17 should be presumed, yet he urges this court to apply the presumption. Applying these factors 18 here reveals that the Petitioner cannot satisfy the test for presuming prejudice. First, nothing in 19 the record supports a finding that there was a barrage of inflammatory publicity that amounted 20 to a huge . . . wave of public passion. Id. The Petitioner includes what appears to be a partial 21 transcription of one news media report. In this transcription, the news reporter summarizes the 22 allegations of the charges that there was a drug ring, and discusses the trial schedule and 23 security concerns raised. Docket No. 525, p. 34. The Petitioner also refers to a statement made 24 by the presiding judge as to the alleged drug ring and the potential harm to witnesses. Docket 25 No. 525, p. 34-35. He offers only conclusory statements alleging a firestorm of media 26 coverage, but makes no showing of a wave of public passion. Second, and significantly, the 27 Petitioner himself concedes that many of the articles about the Petitioner were factual. 28 Page 12 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 Docket No. 525, p. 35. Third, the Petitioner has not shown media accounts containing 2 inflammatory or prejudicial material not admissible at trial. Clearly, this is not an instance 3 where prejudice could be presumed. 4 Furthermore, the Petitioner has not shown the existence of actual prejudice that 5 influenced the jury. To demonstrate actual prejudice, [a petitioner] must show that the jurors 6 demonstrated actual partiality or hostility that could not be laid aside. Daniels, 428 F.3d at 7 1211 (quoting Harris v. Pulley, 885 F.2d 1354, 1363 (9th Cir. 1988)). The Petitioner seemingly 8 argues that the media coverage influenced the jurors to convict him; he offers nothing as to 9 whether the jurors showed actual partiality or hostility. Notably, the Petitioner ignores the 10 substantial evidence against him, including the testimony of 22 informants who testified to his 11 drug trafficking scheme, that led to his conviction. 12 The court is not persuaded by the Petitioner s argument. As discussed above, the court 13 finds that the Petitioner has failed to demonstrate that prejudice should be presumed or that 14 actual prejudice existed to support a request for a change in venue. Therefore, trial counsel 15 provided adequate assistance when he did not make a motion for a change of venue, because 16 there were no grounds to support such a request. In sum, such failure to satisfy both the 17 incompetence prong and prejudice prong of Strickland defeats the ineffectiveness claim. 18 19 20 4. Whether trial counsel s failure to challenge the amount of drugs and drug proceeds established ineffective assistance of counsel The court next examines the Petitioner s allegations that his trial counsel failed to 21 challenge or object to the drug quantity and the amount of drug proceeds alleged by the 22 Government and the Government witnesses. The Government objects to the Petitioner s vague 23 statements, and contends that the Petitioner should be required to make more specific arguments. 24 In evaluating a claim of ineffective assistance of counsel, the court keeps in mind that the 25 Petitioner must overcome the strong presumption that counsel s conduct falls within the wide 26 range of reasonable professional assistance; that is, the defendant must overcome the 27 presumption that, under the circumstances, the challenged action might be considered sound trial 28 strategy. Jones v. Ryan, 583 F.3d 626, 636-37 (9th Cir. 2009) (quoting Strickland, 466 U.S. at Page 13 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 689 (citation and quotation marks omitted)). The court remains mindful that deference must be 2 granted to counsel s decisions. Because advocacy is an art and not a science, and because the 3 adversary system requires deference to counsel s informed decisions, strategic choices must be 4 respected in these circumstances if they are based on professional judgment. Strickland, 466 5 U.S. at 681. 6 The Petitioner contends that he should not have been sentenced on the basis of all the 7 drugs involved in the conspiracy. He argues that there should have been an individual 8 determination of the specific amounts for which he was accountable. He contends that his trial 9 counsel erred in failing to object to the court holding the Petitioner accountable for all the sales 10 made a result of the conspiracy. 11 The Petitioner relies on United States v. Petty, 992 F.2d 887 (9th Cir. 1993), wherein the 12 Ninth Circuit addressed the issue of the quantity of drugs that is to be attributed to a conspirator 13 in a drug conspiracy. One appellant, Jordan Quintal, was involved in a single sale of three 14 kilograms of cocaine to Donald Kessack that occurred in the last three months of the five-year 15 conspiracy. Id. at 888. However, Quintal s sentence was based on a conspiracy involving 16 distribution of 15 to 49 kilograms of cocaine. Id. at 888. The other appellant Robert M. Petty 17 was a founding member of the conspiracy, and argued that he should not have been sentenced 18 on the basis of the cocaine Kessack had obtained from another drug dealer, who was Petty s 19 direct competitor. Id. at 888. The Ninth Circuit vacated the conviction, stating: Under the 20 Guidelines each conspirator, for sentencing purposes, is to be judged not on the distribution 21 made by the entire conspiracy but on the basis of the quantity of drugs which he reasonably 22 foresaw or which fell within the scope of his particular agreement with the conspirators. Id. at 23 890. The court remanded, noting that Quintal may not have foreseen the drugs distributed before 24 he joined the conspiracy, and the scope of his agreement in the conspiracy may or may not have 25 been retrospective. Id. at 891. The court further noted that Petty may or may not have foreseen 26 the drug transactions between Kessack and the competing drug dealer, and these drug 27 transactions may or may not have been within the scope of his agreement. Id. 28 The court finds Petty inapposite. The allegations in the Superseding Indictment do not Page 14 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 allege that the Petitioner was involved in a single transaction (like Quintal), or that the amount of 2 drugs stem from sales involving a competing drug dealer (like Petty). Here, 24 volumes of trial 3 transcripts memorializes the testimony of the 44 Government witnesses and the hundreds of 4 exhibits that were used during the course of the eight-week trial. There was both live and 5 stipulated testimony from law enforcement officers. The testimony of 22 informant witnesses, as 6 well as the voluminous documentary evidence, revealed that the Petitioner had virtually total 7 control of the drug transactions in the conspiracy, including but not limited to the transactions 8 alleged in the Superseding Indictment. Thus, the ruling in Petty does not control this case, and 9 the court rejects the Petitioner s contention that there should have been an individual 10 11 determination of the specific amounts of drugs for which he was accountable. The court therefore evaluates the Petitioner s argument in light of the strong presumption 12 that counsel was relying on sound trial strategy in making his decisions as to evidence of the 13 quantity of the drugs and drug proceeds. The court is aware that [t]here are countless ways to 14 provide effective assistance in any given case. Even the best criminal defense attorneys would 15 not defend a particular client in the same way. Strickland, 466 U.S. at 689. Here, the Petitioner 16 fails to explain how counsel could have better challenged the overwhelming evidence against 17 him. The Government presented informant witnesses who testified, inter alia, that they had 18 body-carried methamphetamine from California for the Petitioner, had received drugs in the 19 mail, had sent Western Union transfers, and obtained cashier s checks, and had been instructed 20 by the Petitioner to say the money was related to cockfighting or other gambling. In addition, 21 the Government introduced as exhibits the 1,326 grams of methamphetamine analyzed by the 22 Drug Enforcement Agency crime lab. See Docket No. 521. Furthermore, the amount of money 23 alleged by the Government was based on documentary evidence, including cash, more than 300 24 Western Union money transfer receipts that totaled more than $1 million dollars, and $274,000 25 in cashier s checks. See Docket No. 412, Trial Transcript Volume XXI, p. 3753. The Petitioner 26 does not argue how his trial counsel could have better challenged the testimony of the witnesses, 27 or the amount of methamphetamine that had been seized during the course of the investigation 28 and admitted as evidence, or the documentary evidence presented by the Government during the Page 15 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 2 course of the lengthy trial. A thorough review of the record reveals that counsel made decisions based on sound trial 3 strategy. He conducted cross-examination of nearly all the 22 informant witnesses, and where 4 relevant, he challenged their testimony regarding the drugs and the drug proceeds. The 5 Petitioner has not shown that his trial counsel s performance was outside the wide range of 6 professional competent assistance. Strickland, 466 U.S. at 690. Accordingly, the court finds 7 there was not ineffective assistance of counsel when Petitioner has failed to make the required 8 showing of deficient performance. 9 10 11 5. Whether trial counsel s failure to present witnesses constituted ineffective assistance of counsel The Petitioner next argues that his trial counsel s performance was deficient because he 12 did not present any witnesses during the trial. The Petitioner simply asserts that there were many 13 witnesses available who should have been interviewed and who should have been called to 14 testify on his behalf. The Government contends that without any specific information about the 15 witnesses or their testimony, this ground should be denied. 16 The United States Supreme Court has said that counsel need not undertake exhaustive 17 witness investigation. The question is not what is prudent or appropriate, but only what is 18 constitutionally compelled. Matylinsky, 577 F.3d at 1092 (quoting Burger v. Kemp, 483 U.S. 19 776, 794 (1987)). Furthermore, the Ninth Circuit has held that counsel need not interview 20 every possible witness to have performed proficiently. See Riley v. Payne, 352 F.3d 1313, 1318 21 (9th Cir. 2003). 22 The Petitioner challenges his trial counsel s decision not to call witnesses, and makes 23 vague assertions about potential witnesses who should have been investigated or called in his 24 defense. He states that there were disinterested witnesses whose names could have been found 25 in police reports, and whose testimony was not repetitive or cumulative, and was potentially 26 exculpatory. See Docket No. 511. 27 Under Strickland, [a] convicted defendant making a claim of ineffective assistance must 28 identify the acts or omissions of counsel that are alleged not to have been the result of reasonable Page 16 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 professional judgment. The court must then determine whether, in light of all the circumstances, 2 the identified acts or omissions were outside the wide range of professionally competent 3 assistance. 488 U.S. at 690. Here, the Petitioner does not name these witnesses that should 4 have been called and does not articulate the testimony they would have presented. His 5 arguments are mere conclusory statements which do not satisfy the standard under Strickland. 6 See Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995) (stating that conclusory allegations of 7 ineffective assistance of counsel are insufficient to support a valid constitutional violation). 8 Courts are to give deference to counsel s informed decisions. Strickland, 466 U.S. at 9 681. Here, trial counsel made a strategic decision, and the Petitioner makes no showing this 10 decision was outside the wide range of professional competent assistance. Id. at 689. The 11 Petitioner has not overcome the strong presumption that counsel was relying on sound trial 12 strategy in this regard. Therefore, the court finds there was not ineffective assistance of counsel. 6. Whether trial counsel s failure to request dismissal of one charge was 13 14 15 ineffective assistance of counsel The Petitioner next contends that his trial counsel was incompetent in failing to request 16 dismissal of one of the charges, Possession of Methamphetamine with Intent to Distribute (Count 17 VI), which arises from the discovery of 21.19 grams of methamphetamine in the Petitioner s 18 briefcase that was recovered from a vehicle driven by Government witness Doris Cruz ( Cruz ), 19 who was one of the Petitioner s girlfriends. See Trial Transcript Volume V, pp. 1015, 1044, 20 1048-49. 21 The Petitioner argues that his trial counsel should have requested dismissal of Count VI 22 because he had only constructive possession of the drugs, and because Government witness 23 Doris Cruz had declared the drugs were hers for her personal use. 24 As to the first argument, the Government asserts that the Petitioner would not have 25 succeeded under the theory of constructive possession. If trial counsel had argued that the 26 Petitioner constructively possessed the drugs, such evidence would have been inculpatory. A 27 person has constructive possession when he or she knowingly holds ownership, dominion, or 28 control over the object and the premises where it is found. United States v. Thongsy, 577 F.3d Page 17 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 1036, 1041 (9th Cir. 2009) (quotation marks and citations omitted). Whether a person has actual 2 or constructive possession is irrelevant. [C]ourts for the purposes of defining possession of 3 contraband do not distinguish between actual and constructive possession. United States v. 4 Wright, 593 F.2d 105, 108 (9th Cir. 1979); see also Nat l Safe Deposite Co. v. Stead, 232 U.S. 5 58, 67 (1914) ( [A]ctual possession and constructive possession . . . often so shade into one 6 another that it is difficult to say where one ends and the other begins. ). Had trial counsel made 7 this argument, he would have inculpated the Petitioner. 8 As to the second argument, the Petitioner contends that dismissal should have been 9 requested based on Cruz s testimony. However, the Government correctly argues that this 10 assertion is contradicted by the record. As discussed infra, Cruz and other witnesses testified 11 that the briefcase belonged to the Petitioner. See infra at pages 22-23. Cruz specifically testified 12 that she only saw the Petitioner, never anyone else, put things inside the briefcase. See Docket 13 No. 413, Trial Transcript Volume XIV, p. 2539. She did not testify that the methamphetamine 14 belonged to her. 15 A review of the record reveals that trial counsel made strategic decisions not to seek 16 dismissal on the basis of constructive possession or on the basis of Cruz s testimony, theories 17 which would have inculpated the Petitioner. Strategic choices made after thorough 18 investigation of law and facts relevant to plausible options are virtually unchallengeable. 19 Strickland, 466 U.S. at 690. Both of the Petitioner s assertions are unsupported by the law and 20 the facts of the case. The Petitioner cannot show defective performance under Strickland, as he 21 has not overcome the strong presumption that trial counsel provided reasonable professional 22 assistance. 466 U.S. at 689. Furthermore, the Petitioner cannot show prejudice, as he has not 23 demonstrated that even if trial counsel made these arguments, there is a reasonable probability 24 that . . . the result of the proceeding would have been different. Id. at 694. Both contentions are 25 meritless, and [t]he failure to raise a meritless legal argument does not constitute ineffective 26 assistance of counsel. Bauman, 692 F.2d at 572. 27 28 The Petitioner has failed to demonstrate both deficient performance and prejudice. Accordingly, the court finds that there was not ineffective assistance of counsel. Page 18 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 2 3 7. Whether trial counsel s failure to explore the possibility of a plea agreement established ineffective assistance of counsel The Petitioner challenges his trial counsel s failure to initiate plea negotiations with the 4 Government prosecutor. The Government contends that the Petitioner had no right to a plea 5 agreement, and thus, his trial counsel could not be ineffective in failing to obtain one. 6 The United States Supreme Court has long recognized that there is no constitutional 7 right to plea bargain; the prosecutor need not do so if he prefers to go to trial. Weatherford v. 8 Bursey, 429 U.S. 545, 561 (1977). Accordingly, the Ninth Circuit has held that a defendant 9 does not have a constitutional right to a plea bargain. United States v. Osif, 789 F.2d 1404, 1405 10 (9th Cir. 1986) (citing Weatherford, 429 U.S. at 561). The Petitioner cites no authority that a 11 defense attorney has a duty to initiate plea negotiations. Federal circuits have not found that 12 such duty exists. See e.g., Welch v. United States, Docket No. 09-2873, 2010 WL 1538866, at 13 *3 (3rd Cir. April 19, 2010) (unpublished) ( It is well-established . . . that counsel does not have 14 an absolute obligation to pursue plea negotiations in every case. ); United States v. Huddy, 184 15 Fed. Appx. 765, *767 (10th Cir. June 19, 2006) (unpublished) (rejecting the defendant s 16 argument that her counsel was ineffective for failing to initiate plea negotiations). 17 Because trial counsel was under no duty to initiate plea negotiations, he was not required 18 to request a plea agreement from the Government prosecutor. Moreover, even if trial counsel 19 had made this request, the prosecutor is not obligated to offer a plea bargain if he prefers to go to 20 trial. See Weatherford, 429 U.S. at 561. Such was the case here. The prosecutor did not make a 21 plea offer to the Petitioner and apparently preferred to go to trial. Thus, trial counsel s failure to 22 initiate or explore the possibility of a plea agreement from the Government does not constitute 23 deficient performance. The court finds that the Petitioner has not met the prong of deficient 24 performance under Strickland, and accordingly, concludes that there was not ineffective 25 assistance of counsel. 26 27 28 8. Whether trial counsel s failure to request jury sequestration amounts to ineffective assistance of counsel The Petitioner next asserts that trial counsel was ineffective because counsel should have Page 19 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 filed a motion to sequester the jury, arguing that there was a massive amount of pretrial 2 publicity. He contends that his attorney should have anticipated that in Guam s small 3 community, there would have been considerable negative publicity. Although not articulated by 4 the Petitioner, he appears to argue that the news media reports give rise to a presumption of 5 prejudice or demonstrate actual prejudice. He suggests that if the jury had been sequestered, 6 then he would not have been convicted. 7 The Government argues that the record reveals that the jury had been instructed each day 8 not to read or watch news stories concerning the trial, and it is presumed that the jury obeyed the 9 court s instruction. See Docket No. 521. The Government also asserts that the Petitioner has 10 failed to allege any facts to support this argument that there was prejudice, and contends that the 11 Petitioner has not established fundamental unfairness in the decision not to sequester, which is 12 the standard for jury sequestration adopted by the Ninth Circuit in Powell v. Spalding, 679 F.2d 13 163, 166 (9th Cir. 1982). 14 To evaluate the Petitioner s argument for sequestration, the court first addresses the 15 Petitioner s contention that he had been prejudiced by the news reports. As discussed supra, at 16 pages 12-13, the Petitioner must show that prejudice should be presumed or that actual 17 prejudice existed. Turner, 281 F.3d at 865. This court previously concluded that the Petitioner 18 not only failed to satisfy the three-factor test in Daniels v. Woodford, 428 F.3d 1181, for 19 application of the presumption of prejudice, but he also failed to demonstrate actual prejudice as 20 a result of the news coverage. 21 The court next recognizes that, first and foremost, a criminal defendant does not have the 22 right to a sequestered jury. See id. at166 n.3. The decision to sequester a jury is within the trial 23 court s discretion. See United States v. Dufur, 648 F.2d 512, 513 (9th Cir. 1980) (citing Frame 24 v. United States, 444 F.2d 71, 72 (9th Cir.), cert. denied, 404 U.S. 942 (1971)). Even assuming 25 arguendo that counsel had in fact sought, but was denied sequestration, the Petitioner has not 26 demonstrated that the decision not to sequester the jury resulted in fundamental unfairness, in 27 accordance with Powell, 679 F.2d 163, or in actual prejudice to his right to a fair trial. See 28 United States v. Floyd, 81 F.3d 1517, 1528 (10th Cir.1996). His arguments seems to be that if Page 20 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 the jurors had been sequestered, they would not have been prejudiced against him and would not 2 have convicted him. The Petitioner does not acknowledge the mountain of evidence presented 3 during the trial that resulted in his conviction. In addition, he does not discuss the court s 4 frequent admonitions to the jury not to read or watch news reports about the trial. He cannot 5 overcome the strong presumption that he received effective assistance from trial counsel, and he 6 does not demonstrate that the outcome would have been different. The Petitioner fails to prove 7 both deficient performance and prejudice required under the two-prong test set forth in 8 Strickland. Accordingly, the court finds there was not ineffective assistance of counsel. 9 10 9. Whether trial counsel s failure to object to the prosecutor s statements to the jury regarding the special allegations constitutes ineffective assistance of counsel 11 The Petitioner next argues that his trial counsel was ineffective when he failed to object 12 or move for a mistrial because of statements made by the Government prosecutor regarding the 13 special allegations. He contends it was unfair for the prosecutor to present argument as to the 14 special allegations. The Government counters that it was proper for the prosecutor to argue an 15 issue which had been charged in the indictment. 16 To succeed on this claim, the Petitioner must show both deficient performance by his trial 17 counsel and that such deficient performance prejudiced his defense. See Strickland, 466 U.S. 18 668. Furthermore, the Petitioner must overcome the strong presumption that, under the 19 circumstances, the challenged action might be considered sound trial strategy. Id. at 689 20 (citation and quotation marks omitted). 21 The Petitioner seemingly contends that in making these statements, the prosecutor 22 attempted to influence the jurors mind set, and therefore, the jury may have been influenced by 23 these statements to convict him. Such speculation is plainly insufficient to establish prejudice. 24 Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008). In arguing that his trial counsel erred 25 in failing to challenge the facts of the case as argued by the prosecutor, the Petitioner does not 26 make any reference to the overwhelming evidence presented against him that was considered by 27 the jury. Again, he offers mere speculation. The court finds such speculation does not overcome 28 the strong presumption that Petitioner s trial counsel rendered adequate assistance, Strickland, Page 21 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 466 U.S. at 690, and thus, the court finds the Petitioner has not demonstrated deficient 2 performance. Accordingly, the court finds that the Petitioner has not shown he received 3 ineffective assistance of counsel in this regard. 10. Whether trial counsel s failure to elicit certain testimony from a 4 5 6 Government witness amounts to ineffective assistance of counsel The Petitioner next asserts that trial counsel failed to bring testimony from Government 7 witness Doris Cruz ( Cruz ) that 21 grams of methamphetamine seized from her was for her 8 personal consumption. Specifically, he argues that evidence from the trial showed that Cruz s 9 testimony reveals that she took responsibility for the 21 grams of methamphetamine, and that 10 she declared the drug belong[ed] to her and that was for her personal consumption. Docket 11 No. 510. The Government points out that Cruz never testified the methamphetamine was hers 12 for her personal use. 13 Trial counsel is strongly presumed to have rendered adequate assistance and made all 14 significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. 15 at 690. Thus, the Petitioner must overcome the heavy burden of proving that counsel s 16 assistance was neither reasonable nor the result of sound trial strategy. Matylinsky, 577 F.3d at 17 1091 (quoting Murtishaw, 255 F.3d at 939). 18 The trial record does not support the Petitioner s contention. Cruz testified that the 19 Petitioner was at a church for his cousin s wedding, and [the Petitioner] had those guys tell me 20 to get his briefcase, his cell phones, and his clothes from his home in Yona. Docket No. 413, 21 Trial Transcript Volume XIV, p. 2538. The police were conducting a raid on the Petitioner s 22 home and had conducted a roadblock of the street to prevent vehicles from entering or leaving 23 the area during the execution of the raid. See Trial Transcript Volume V, pp. 1003-06; Docket 24 No. 413, Trial Transcript Volume XIV, p. 2541. Cruz testified that she allowed the police to 25 search the car, and they found drugs and drug paraphernalia in the briefcase and on her person.4 26 27 28 4 Although Cruz stated that the drugs were [i]n my briefcase and on myself, Docket No. 413, Trial Transcript Volume XIV, p. 2542, a closer look at Cruz s testimony reveals that she is referring to the briefcase that belonged to the Petitioner, which was Government Exhibit 38 during Page 22 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 See Docket No. 413, Trial Transcript Volume XIV, p. 2542. Guam Police Department Officer 2 Raymond Terlaje testified that he retrieved a purse, toiletry bag and briefcase from inside the car 3 Cruz was driving. See Trial Transcript Volume V, pp.1011-12, 1015. Contained inside the 4 purse and the toiletry bag were drugs (cocaine and methamphetamine), drug paraphernalia and a 5 firearm and ammunition. See Transcript Volume V, pp. 1013-23; Transcript Volume XII, pp. 6 2277-2278. Officer Barbara Benavente testified that upon conducting a patdown of Cruz, she 7 recovered drug paraphernalia. Trial Transcript Volume V, pp. 1031-34. Cruz admitted to 8 owning the drug paraphernalia, as well as the purse and toiletry bag. See Docket No. 413, Trial 9 Transcript Volume XIV, p. 2544-47; Docket No. 411, Trial Transcript Volume XII, p. 2277 10 The Petitioner s specific claim, however, relates to the briefcase, which contained, inter 11 alia, $9,100 cash, two .22 caliber handguns and a ziplock bag of 21.19 grams of 12 methamphetamine that was 96 percent pure. Trial Transcript Volume V, pp. 1015, 1044, 1048- 13 49. Contrary to the Petitioner s argument, Cruz did not testify that she owned the drugs in the 14 briefcase. Rather, Cruz testified it belonged to the Petitioner and that she never saw anyone 15 other than the Petitioner put anything inside the briefcase. See Docket No. 413, Trial Transcript 16 Volume XIV, p. 2539. She also testified that she did not have the combination to the briefcase 17 and never put anything inside the briefcase. See Docket No. 413, Trial Transcript Volume XIV, 18 p. 2539. Nothing in Cruz s testimony supports the Petitioner s argument that Cruz declared 19 the drugs in the Petitioner s briefcase were hers and for her personal use. 20 It is not ineffective assistance of counsel if an attorney fails to raise a meritless argument. 21 See Bauman, 692 F.2d at 572. Cruz s testimony directly contradicts the Petitioner s argument. 22 The Petitioner fails to overcome the strong presumption that he received adequate assistance 23 from trial counsel. See Strickland, 466 U.S. at 689. The court finds that trial counsel s 24 performance was not deficient, and accordingly, concludes there was not ineffective assistance of 25 26 27 28 the trial. Other witnesses testified that the briefcase belonged to the Petitioner, including his wife Katrina Cabaccang. See Trial Transcript Volume II, pp. 334-35. Witness Franklin Alcantara testified that the briefcase (Government Exhibit 38) was the kind of briefcase he had seen in the Petitioner s residence, and that he saw the Petitioner remove money from it. See Docket No. 411, Trial Transcript Volume XII, p. 2160. Page 23 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 2 3 counsel. 11. Whether trial counsel s failure to request a mistrial after certain media reports constitutes ineffective assistance of counsel 4 The Petitioner next argues that trial counsel was ineffective when he did not request a 5 mistrial after a television station reported that the drugs and drug proceeds stemming from the 6 case were the Petitioner s property, and that the Petitioner was involved in two unsolved 7 murders. He also refers to a newspaper article on drug distribution activity on island that 8 mentioned the Petitioner as being responsible for murders and identified him as being an alleged 9 leader and organizer of the drug conspiracy. See Docket No. 525. The Petitioner contends these 10 news reports, published before the start of the trial, may have influenced the jury. Although not 11 precisely articulated, the Petitioner argues that the news reports prejudiced his case. The 12 Government concedes that one news report covering the trial was discussed by the court and 13 counsel outside of the jury, but that the trial judge determined that the news coverage had no 14 direct correlation to the trial. See Docket No. 522; Trial Transcript XVI, pp. 2844-2852. 15 The court recognizes the strong presumption that must be afforded to trial counsel s 16 conduct, and that [j]udicial scrutiny of counsel s performance must be highly deferential. 17 Strickland, 466 U.S. 689. Here, the Petitioner contends that his trial counsel s performance was 18 deficient because he did not request that the court inquire into whether the jurors were aware of 19 these news stories, and thus whether the publicity had prejudiced the case. The prejudicial 20 effect of pervasive publicity is tested under the presumed prejudice or the actual prejudice 21 standards. Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988). 22 The court finds no grounds to warrant a presumption of prejudice. As discussed above, 23 the Ninth Circuit has stated that: [t]hree factors should be considered in determining presumed 24 prejudice: (1) whether there was a barrage of inflammatory publicity immediately prior to trial, 25 amounting to a huge ... wave of public passion ; (2) whether the news accounts were primarily 26 factual because such accounts tend to be less inflammatory than editorials or cartoons; and (3) 27 whether the media accounts contained inflammatory or prejudicial material not admissible at 28 trial. Daniels, 428 F.3d at 1211 (quoting Ainswoth, 138 F.3d at 795). Applying these factors Page 24 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 to the news accounts relied upon by the Petitioner reveal that the accounts do not appear to be 2 such inflammatory publicity amounting to a wave of public passion. Further, the Petitioner 3 himself conceded they were primarily factual news reports. Lastly, nothing in the record 4 indicates that the accounts contained inflammatory material that was inadmissible. The Ninth 5 Circuit has held that: Prejudice is presumed when the record demonstrates that the community 6 where the trial was held was saturated with prejudical and inflammatory media publicity about 7 the crime. Harris, 885 F.2d at 1361. On the basis of the news reports cited by the Petitioner, 8 the record in this case does not reveal a community that was saturated with prejudicial and 9 inflammatory publicity. Id. Therefore, this case is not that extreme instance where prejudice 10 11 should be presumed. Daniels, 428 F.3d at 1211. Further, the court finds that the Petitioner has not shown actual prejudice. The Petitioner 12 contends that his trial counsel should have made a motion for mistrial to determine whether the 13 publicity affected the jurors. This is not the standard to be applied here. To determine whether 14 actual prejudice existed to deny defendant his right to a panel of impartial, indifferent jurors, a 15 court must determine if the jurors demonstrated actual partiality or hostility that could not be laid 16 aside. Harris, 885 F.2d at 1363 (citation and quotation marks omitted). Here, the Petitioner 17 does not present any evidence of actual partiality or hostility. In fact, he concedes that it was 18 never established that there was actual prejudice. Docket No. 525, p. 84. 19 The Petitioner has not overcome the strong presumption that counsel s conduct falls 20 within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. 21 Furthermore, he does not show that the outcome of his trial would have been different, and thus 22 he cannot satisfy the prejudice prong under Strickland. See id. at 697. The court finds that the 23 Petitioner has not demonstrated deficient performance and prejudice and thus has not proved that 24 he received ineffective assistance of counsel. 25 26 12. Whether trial counsel s failure to investigate and properly prepare for trial amounts to ineffective assistance of counsel 27 The Petitioner argues that in general, his trial counsel failed to investigate the case and 28 prepare for the trial. More specifically, he asserts that trial counsel did not present a credible Page 25 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 defense, such as evidence of the Petitioner s substance abuse problem; did not hire an investigator; 2 and did not personally review all the evidence the Government was going to present. The Government requests the court reject this argument, because, inter alia, the 3 4 Petitioner has not stated with particularity the further investigation that should have been 5 conducted, the evidence his trial counsel failed to discover, and the effect of such evidence on 6 the outcome of the trial. 7 In analyzing trial counsel s performance, this court recognizes that [t]here are countless 8 ways to provide effective assistance in any given case. Even the best criminal defense attorneys 9 would not defend a particular client in the same way. Strickland, 466 U.S. at 689. A close look 10 at the record reveals that trial counsel had prepared for the trial, and reviewed the evidence the 11 Government was going to present. He conducted cross-examination of witnesses, including the 12 Government informants, and challenged their testimony and evidence. Trial counsel made a 13 two-and-a-half hour long closing argument that demonstrated his knowledge of the case, his 14 familiarity with the witnesses testimony, the evidence, and the theory advanced by the 15 Government. Contrary to the Petitioner s assertion, the record reveals that trial counsel had 16 prepared for the trial and provided the Petitioner with adequate representation. See Matylinsky, 17 577 F.3d at 1092 (stating that conduct expected of counsel is only what is constitutionally 18 compelled. ) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The Petitioner also 19 disagreed with the theory advanced by trial counsel, and believes it would have been a better 20 defense to present mitigating evidence of a drug abuse problem. This is clearly a strategic 21 decision made by trial counsel, and the court acknowledges the strong presumption that 22 counsel s conduct . . . might be considered sound trial strategy. Strickland, 466 U.S. at 689. As 23 guided by Strickland, the court defers to trial counsel s strategic decisions. Upon review of the record, the court finds that the Petitioner has not shown that his trial 24 25 counsel s actions fell below the wide range of professional competent assistance. Id. The 26 Petitioner has not overcome the presumption that his counsel provided adequate representation. 27 Accordingly, the court finds there was not ineffective assistance of counsel. 28 /// Page 26 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 13. Whether counsels failure to argue that the original sentence was 1 2 3 unconstitutional proved to be ineffective assistance of counsel The Petitioner contends that his counsel in his trial and later, his counsel in his first 4 appeal, were ineffective because they did not argue that his original sentence was 5 unconstitutional as a result of the trial judge s failure to impose the mandatory term of 6 supervised release. The Government points out that the Judgment entered after the resentencing 7 reflects the ten-year term of supervised release. A review of the sentencing hearing by the trial 8 judge reveals that after sentencing the Petitioner to a term of life imprisonment, the judge did not 9 impose a term supervised release.5 10 Because he raises this issue in an ineffective assistance of counsel claim, the Petitioner 11 must demonstrate that his counsels performance was deficient and, and that such performance 12 resulted in prejudice to his defense. See id. at 687. With regard to this specific argument, 13 however, the court examines only whether there was prejudice caused by the alleged error by 14 counsel. The court in Strickland recognized: If it is easier to dispose of an ineffectiveness 15 claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course 16 should be followed. Id. at 697. 17 A review of the facts of the case reveals that even if these issues had been raised, the 18 outcome would not have been different. The Petitioner appealed his conviction, and his case 19 was remanded for resentencing. At the resentencing, the court imposed a ten-year term of 20 supervised release: A ten-year term of supervised release shall follow the sentence on Count 21 Six. See Transcript of May 6, 2005, p. 51. After the first appeal and upon resentencing, the 22 Judgment entered reflected the imposition of supervised release. Thus, because the Judgment 23 entered reflected the ten-year term of supervised release, the Petitioner cannot demonstrate 24 prejudice. An error by counsel, even if professionally unreasonable, does not warrant setting 25 5 26 27 28 As a practical matter, it may appear unnecessary to sentence a defendant to a term of supervised release following the imposition of a life sentence, but such has been done in other cases. See e.g., United States v. Ennis, No. 92-30218, 1993 WL 272472, 1 (9th Cir. 1993) (unpublished) (district court sentenced defendant to life imprisonment, followed by a consecutive term of five years imprisonment and five years supervised release). Page 27 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 aside the judgment of a criminal proceeding if the error had no effect on the judgment. 2 Strickland, 466 U.S. at 691. 3 Therefore, not only has the Petitioner failed to demonstrate prejudice, but this argument 4 is without merit. The failure to raise a meritless legal argument does not constitute ineffective 5 assistance of counsel. Bauman, 692 F.2d at 572. Accordingly, the court finds there was not 6 ineffective assistance of counsel in this regard. 7 B. The law regarding procedural default 8 In addition to challenging the claims of ineffective assistance of counsel made by the 9 Petitioner, the Government also contends that the Petitioner procedurally defaulted the following 10 two claims by failing to raise them on direct appeal: 1) trial counsel s failure to challenge or 11 object to the prosecutor s statements regarding the special allegations; and 2) trial counsel s 12 failure to make a motion for mistrial on the basis of certain news media reports. 13 Where a defendant has procedurally defaulted a claim by failing to raise it on direct 14 review, the claim may be raised in habeas only if the defendant can first demonstrate cause and 15 actual prejudice, or that he is actually innocent. Bousley v. United States, 523 U.S.614, 622 16 (1998) (citations omitted). See also United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) 17 ( If a criminal defendant could have raised a claim of error on direct appeal but nonetheless 18 failed to do so, he must demonstrate both cause excusing his procedural default, and actual 19 prejudice resulting from the claim of error. ) (quoting United States v. Johnson, 988 F.2d 941, 20 945 (9th Cir. 1993)). Therefore, the court examines whether the Petitioner has demonstrated 21 cause and actual prejudice, or whether he is actually innocent. 22 23 1. Failure to object to statements made by the prosecutor regarding the special allegations 24 The Petitioner first argues that the Government prosecutor erred when he made 25 statements regarding the special allegations. Because he failed to raise this issue in his direct 26 appeal, the Petitioner procedurally defaulted this claim. 27 28 Upon examination of the case, the Petitioner has not demonstrated cause excusing the default or actual prejudice. Generally, to demonstrate cause for procedural default, an Page 28 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 appellant must show that some objective factor external to the defense impeded his adherence 2 to the procedural rule. Skurdal, 341 F.2d at 925. The Petitioner does not explain the cause, that 3 is, the objective factor, that prevented him from raising this argument on direct appeal. The 4 argument was not raised in his direct appeal. The court is cognizant that the mere fact that 5 counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim 6 despite recognizing it, does not constitute cause for a procedural default. Murray v. Carrier, 7 477 U.S. 478, 486 (1986). Furthermore, Petitioner s argument regarding actual prejudice is 8 based solely on his speculation that the jury may have been influenced by the prosecutor s 9 statements. Docket No. 525, p. 69. However, the possibility of influence on the jury does not 10 amount to actual prejudice. In sum, the Petitioner has not demonstrated cause or actual 11 prejudice. 12 In addition, the Petitioner fails to discuss the alternative method of excusing procedural 13 default, which is demonstrating that he is actually innocent of the offense. See Bousley, 523 14 U.S. at 622. The Petitioner bears the burden of showing that in light of all the evidence, . . . the 15 trier of the facts would have entertained a reasonable doubt of his guilt. Id. at 624. The 16 Petitioner has not shown that the trier of fact would have entertained reasonable doubt. Here, the 17 jury heard from 44 Government witnesses, saw exhibits and written stipulations as well as other 18 documentary evidence, and ultimately returned a unanimous verdict finding the Petitioner guilty 19 on all counts. The Petitioner does not argue, and the court does not find, that he is actually 20 innocent. See Bousley, 523 U.S. at 622. Accordingly, the court finds that the Petitioner has 21 procedurally defaulted this claim. 22 2. Motion for mistrial 23 Next, the Government asserts that the Petitioner procedurally defaulted his argument as 24 to the motion for mistrial by failing to raise it in his direct appeal. As discussed above, a 25 defendant procedurally defaults a claim by failing to raise it on direct review, and such claim 26 may be raised in habeas only if the defendant can first demonstrate cause and actual prejudice, or 27 that he is actually innocent. Bousley, 523 U.S. at 622. Therefore, the court examines whether 28 the Petitioner has demonstrated cause and actual prejudice, or whether he is actually innocent. Page 29 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence The Petitioner has not shown cause to excuse his default; he offers no objective factor 1 2 that impeded his adherence to the procedural rule. Skurdal, 341 F.2d at 925. This argument 3 was simply not raised in the appeal. Again, the fact that counsel did not recognize the factual or 4 legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute 5 cause for a procedural default. Murray, 477 U.S. at 486. Further, there is no evidence of 6 actual prejudice. The Petitioner speculates that the jury may have heard or been exposed to 7 the media coverage. Speculation, however, is insufficient to overcome the presumption that the 8 jury complied with the court s daily admonitions not to listen or read or view any media 9 coverage of the trial. See Shotwell Mfg. Co. v. United States, 371 U.S. 341 (1963). The Petitioner does not discuss the alternative method of excusing procedural default; 10 11 that is, he does not argue he is actually innocent of the offense. See Bousley, 523 U.S. at 622. 12 He has not shown that the trier of fact would have entertained reasonable doubt. Again, the 13 Government s case against the Petitioner consisted of days of trial testimony by witnesses, and 14 documentary evidence including, inter alia, laboratory reports, stipulations, receipts, cash and 15 cashier s checks. At the conclusion of the trial, the jury returned a unanimous verdict finding the 16 Petitioner guilty of all counts. The Petitioner has not argued, and the court does not find, that he 17 is actually innocent. See id. The court finds that the Petitioner has procedurally defaulted on 18 this claim as well. 19 III. CONCLUSION For the foregoing reasons, the court finds that the Petitioner has failed to overcome the 20 21 strong presumption that the conduct of his trial, resentencing and appellate counsel falls 22 within the wide range of reasonable professional assistance, Strickland, 466 U.S. at 689, and 23 has failed to demonstrate that the outcome of his trial would have been different. See id. at 697. 24 Consequently, as to each of the grounds argued by the Petitioner, the court concludes that he has 25 not demonstrated deficient performance and prejudice and thus has not proved that he received 26 ineffective assistance of counsel. The court further finds that the Petitioner procedurally 27 defaulted two of these claims. 28 /// Page 30 of 31 United States v. Cabaccang, Criminal Case No. 97-00095 Order re: Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 Accordingly, the Petitioner s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or 2 Correct Sentence is HEREBY DENIED. Furthermore, the court does not find that the Petitioner 3 has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 4 Therefore, the court will NOT issue a certificate of appealability. See Rule 11 of the Rules 5 Governing Section 2255 Proceedings for the Untied States District Courts. 6 SO ORDERED. 7 /s/ Frances M. Tydingco-Gatewood Chief Judge Dated: Jul 28, 2010 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 31 of 31

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