Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1989)

No. 89-15487.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and DAVID R. THOMPSON, Circuit Judges, and MUECKE, District Court Judge^** .

MEMORANDUM^*** 

This is the fifth time that Stewart has come before this court. The facts relating to his offense and trial are set out in full in our first opinion, United States v. Stewart, 770 F.2d 825 (9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986) ("Stewart I "). See also United States v. Stewart, 799 F.2d 580 (9th Cir. 1986) ("Stewart II "); United States v. Stewart, No. 87-1233, Memorandum Decision (9th Cir., July 7, 1988) ("Stewart III "); United States v. Stewart, No. 88-1269, Memorandum Decision (9th Cir., June 23, 1989) ("Stewart IV "). There is no need to completely restate the facts here. Stewart was convicted of distribution and conspiracy to distribute LSD, and of possession with intent to distribute and conspiracy to distribute cocaine.

In this appeal, Stewart contests the denial of his motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. The district court denied the motion, stating "that no good cause exists as to why petitioner's sentence should be vacated, set aside, or corrected. All of the errors which petitioner alleges occurred at his trial and at his sentencing have already been reviewed, both by this Court and by the Ninth Circuit." Order Denying Petitioner's Motion to Vacate, Set Aside or Correct Sentence, March 16, 1989.

The district court had jurisdiction over Stewart's section 2255 motion under 28 U.S.C. §§ 2255 and 1331. This court has jurisdiction under 28 U.S.C. §§ 1291 and 2255. The appeal was timely. 28 U.S.C. § 2255 and Rule 11; Fed. R. App. P. 4(a).

Stewart raises seven issues: (1) unlawful arrest, (2) denial of speedy trial, (3) tampering with evidence, (4) improper inclusion and exclusion of witnesses, (5) failure to disclose exculpatory material, (6) unfair sentencing, and (7) ineffective assistance of counsel. In addition to contesting the seven allegations of error, the government contends that Stewart is not entitled to relief because he has not shown adequate cause for his delay in raising the issues and contends that certain issues have already been conclusively determined by this court.

ANALYSIS

We note that in order "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his ... procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982). This court reviews de novo a denial of a section 2255 petition. See, e.g., United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989) (per curiam).

The district court did not hold an evidentiary hearing on Stewart's section 2255 motion. Denial of a section 2255 motion without an evidentiary hearing is improper unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Quan, 789 F.2d 711, 715 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). "We may affirm the district court if [defendant's] allegations, viewed against the record, either fail to state a claim for relief or are 'so palpably incredible or patently frivolous as to warrant summary dismissal.' " Marrow, 772 F.2d at 526 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (per curiam), cert. denied, 470 U.S. 1058 (1985)); see Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.), cert. denied, 110 S. Ct. 195 (1989); Quan, 789 F.2d at 715. Judges may use their notes and recollection of prior proceedings to supplement the record, along with common sense. Shaw, 878 F.2d at 1159; Farrow v. United States, 580 F.2d 1339, 1352-53 (9th Cir. 1978) (en banc).

Merely conclusory statements are not enough to require a hearing: the defendant must make factual allegations which, if true, would support his claim. See Popoola, 881 F.2d at 812; Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969). "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." Quan, 789 F.2d at 715; see Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982); Farrow, 580 F.2d at 1360-61.

Stewart claims that he was unlawfully arrested. However, " [o]ur review of the record reveals that, under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [defendant] had committed a crime." United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986); see United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986). The agents had probable cause to arrest Stewart. Cf. Stewart I, 770 F.2d at 829 (probable cause to search).

Stewart contends that the district court erred in finding certain pretrial periods excludable delay under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We do not consider Stewart's arguments as to alleged violations of the Act prior to his first trial, which ended in a mistrial. Section 2255 provides for "a prisoner in custody ... to vacate, set aside or correct the sentence." 18 U.S.C. § 2255. As no sentence was imposed because of the mistrial, no relief is available from the pending motion. Further, the proper relief for violations of the Speedy Trial Act is dismissal, generally without prejudice. 18 U.S.C. § 3162. This relief would be rendered moot by the mistrial.

We next consider Stewart's contention that the district court erred in excluding the period from November 10, 1983 through January 9, 1984 based on a finding that the ends of justice were served by a continuance. Order, November 23, 1983. Stewart failed to move for a dismissal on this ground prior to his second trial. This constitutes a waiver of the right to dismissal under 18 U.S.C. § 3162(a) (2).

Nor does Stewart have a constitutional speedy trial claim. His mistrial was declared on July 12, 1983. There were numerous pretrial motions, and the district court granted a continuance of sixty days in order to allow new defense counsel to review voluminous transcripts of Stewart's first trial. Voir dire began January 30, 1984.

Four factors are considered in weighing a sixth amendment speedy trial claim: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972). Here, the delay was not lengthy. The delay was caused by Stewart's pretrial motions and the defense's need for preparation. Stewart did not assert his right to a speedy trial. And, Stewart alleges no prejudice arising from the delay. We conclude that Stewart's constitutional right to a speedy trial was not violated. Cf. United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir. 1985) (six-month delay resulting from pretrial motions, superseding indictment and new codefendant); United States v. Nance, 666 F.2d 353, 360-61 (9th Cir.) (five-month delay not presumptively prejudicial), cert. denied, 456 U.S. 918 (1982).

Stewart argues that the district court incorrectly denied his request for reanalysis of the cocaine found in Stewart's vehicle. He argues that at the first trial, the cocaine was found to be 83% pure and dextrose sugar was found in the vehicle. At the second trial, he claims the second analysis showed dextrose as a diluent in the cocaine. Stewart desired reanalysis to show that the reduced percentage of cocaine was due to the recent addition of dextrose. Stewart does not contend that the government witness was not qualified to testify to the purity of the cocaine.

The expert testified at both trials that the percentage of cocaine in Exhibit 4 was 80%, and that Exhibit 5 was 83% cocaine. Stewart's contention that the purity of cocaine changed between trials is clearly contradicted by the record. Stewart failed to allege any further nonfrivolous or nonconclusory facts suggesting DEA tampering with the evidence.

Stewart contends that DEA agents Razzamenti and Lax should not have been allowed to give expert testimony that the amount of cocaine Stewart possessed would be unusually large for personal consumption, or that one-quarter to one-half gram of cocaine was usually consumed at one sitting. Stewart also contends that the district court erred by not allowing Green, a rehabilitated cocaine user, to testify as to the amount of cocaine Green and others consumed.

The district court did not err in denying Stewart's section 2255 motion to dismiss without a hearing as to this issue. The district court had all the facts before it and could rely on its own recollection of the trial, over which the same district court judge had presided. Given the DEA agents' extensive backgrounds, the trial court's admission of the agents' opinions was not manifestly erroneous. Stewart I, 770 F.2d at 831. Nor was the court's refusal to allow Green to testify manifestly erroneous. See United States v. Marabelles, 724 F.2d 1374, 1381-82 (9th Cir. 1984). Green's testimony was limited to his own former cocaine habit: his testimony lacked both relevance and reliability.

Stewart contends that paperwork existed documenting prior knowledge of the source of the drugs in evidence. He contends that this exculpatory evidence was kept from him. The record reveals that defense counsel was clearly aware of this evidence and did not pursue the matter further due to tactical considerations.

Stewart also contends that the government did not provide the handwritten notes made by Agent Kidwell during a surveillance. The record contradicts this claim: the notes were produced at the first trial and Stewart had access to them. Even were the evidence not produced, Stewart fails to establish a claim under Brady v. Maryland, 373 U.S. 83 (1963). The notes were not material. See id. at 87; United States v. Andersson, 813 F.2d 1450, 1458-59 (9th Cir. 1987). Nor does Stewart state a claim under the Jencks Act, 18 U.S.C. § 3500. The notes were rough notes taken during the course of surveillance and do not need to be produced under this Act. Andersson, 813 F.2d at 1459.

Stewart claims that the district court relied on false information in imposing on him a sentence which was disparate from that of his codefendant. This claim has been thoroughly considered by this court and we find no reason to supplement our prior analysis and resolution of it. See Stewart II.

Stewart contends that he received ineffective assistance of counsel. He makes two specific allegations: (1) that counsel failed to timely prepare jury instructions, and (2) that counsel was ill prepared in gaining the relevant materials from prior counsel. Stewart's other claims of ineffective assistance of counsel are merely conclusory statements which are unsupported by facts and refuted by the record.

The question of whether an attorney renders ineffective assistance is a mixed question of law and fact, which this court reviews de novo. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908 (1988).

A defendant must show that his counsel's performance fell below that of a reasonably effective attorney and that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is strongly presumed to have rendered adequate assistance. Id. at 689-90. Stewart must show that his counsel failed to exercise the skill, judgment, or diligence of a reasonably competent attorney. Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir. 1985). Our independent review of the record reveals that Stewart's counsel exercised the skill, judgment, and diligence of a reasonably competent attorney.

Further, Stewart fails to articulate any actions of his prior counsel which were prejudicial. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Stewart baldly asserts that he was prejudiced, yet fails to show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. Stewart does not allege that counsel failed to prepare any jury instructions. Nor does he explain how the delay in producing jury instructions prejudiced him beyond vague conclusory statements. Nor did prejudice result from the fact that prior counsel did not have copies of Agent Kidwell's notes. As stated above, Agent Kidwell's notes were not discoverable under the Jencks Act.

CONCLUSION

The district court did not err by failing to hold an evidentiary hearing on Stewart's section 2255 motion. The motion, the files and the records conclusively showed that Stewart was entitled to no relief. Moreover, the judge who considered Stewart's section 2255 motion was the same judge who had presided at his trial, and was familiar with the basis, or lack thereof, of the arguments and contentions Stewart presented.

We have discussed all of Stewart's contentions which he raised in his section 2255 motion, and which he has raised on appeal, even though many of these claims could be summarily rejected on the ground that Stewart should have raised them, and failed to do so, in his earlier appeals. See Egger v. United States, 509 F.2d 745, 748 (9th Cir.), cert. denied, 423 U.S. 842 (1975); Medrano v. United States, 315 F.2d 361, 362 (9th Cir.) (per curiam), cert. denied, 375 U.S. 854 (1963); cf. United States v. Marchese, 341 F.2d 782, 789 (9th Cir.), cert. denied, 382 U.S. 817 (1965) (issue deliberately bypassed on direct appeal).

Section 2255 may not be invoked to relitigate questions which were or should have been raised on a direct appeal from the judgment of conviction ... or stated another way, grounds which were apparent when appellant appealed from his conviction cannot, thereafter, be made the basis for an attack on a motion to set aside judgment and sentence.

Hammond v. United States, 408 F.2d 481, 483 (9th Cir. 1969). We have addressed Stewart's claims, and have resolved them, so that there is no question that his various contentions have been considered and have been rejected.

AFFIRMED.