Vincent Anthony Jones v. United States of America, No. 2:2013cv08906 - Document 12 (C.D. Cal. 2014)
Court Description: ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. 2255 by Judge Dean D. Pregerson: Petitioners first Motion to Amend Original and Timely Filed 28 U.S.C. 2255 Motion Pursuant to Relief Under Rule 15(c) 8 ) is DENIED; Petitioners second Motion to Ame nd Original and Timely Filed 28 U.S.C. 2255 Motion Pursuant to Relief Under Rule 15(c) 10 is GRANTED; and Petitioners Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. 2255 1 , which incorporates the claims made in Petitioners second motion to amend, is DENIED.(Made JS-6. Case Terminated.) . (lc). Modified on 8/26/2014 (lc).
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1 0 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff-Respondent, 13 v. 14 VINCENT ANTHONY JONES, 15 Defendants-Petitioner. ___________________________ ) ) ) ) ) ) ) ) ) ) Case No. CV 13-08906 DDP T [CR 09-00460 DDP] ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 [CV Dkt. Nos. 1, 8, 10] [CR Dkt. Nos. 189, 196, 197] 16 17 Before the court is Petitioner Vincent Anthony Jones 18 (“Petitioner”)’s Motion to Vacate, Set Aside, or Correct Sentence 19 Pursuant to 28 U.S.C. § 2255. (Dkt. No. 1.) Also before the court 20 are two Motions to Amend Original and Timely Filed 28 U.S.C. § 2255 21 Motion Pursuant to Relief Under Rule 15(c). (Dkt. Nos. 8, 10.) 22 Having reviewed the materials submitted by the parties and 23 considered the arguments advanced therein, the court adopts the 24 following order. 25 I. 26 Background On May 12, 2009, Petitioner was indicted for four counts of 27 bank robbery and one count of attempted bank robbery, all in 28 violation of 18 U.S.C. § 2113(a). 1 A. 2 Guilty Plea Petitioner initially pled not guilty to all counts of the 3 indictment. (Dkt. No. 13.) However, on May 6, 2010, after several 4 days of trial, Petitioner changed his plea to guilty on count five, 5 bank robbery in a violation of 18 U.S.C. § 2113(a). (CR Dkt. No. 6 147.) In entering a guilty plea, Petitioner agreed to the 7 government’s Offer of Proof, which stated as follows: 8 On May 1st, 2009 at approximately 2:33 p.m. defendant entered a Farmers and Merchant’s Bank located at 3140 East Anaheim Street, in Long Beach, California. Defendant handed a teller MAG note which read “I will shoot you in the head. Give me your money, top and bottom drawer,” or words to that effect. 9 10 11 By providing the note to the teller, defendant intended to and did intimidate the teller into giving defendant Farmers’ and Merchant’s money. 12 13 The teller gave defendant $1,496 of Farmers’ and Merchant’s money. Defendant took the money and left the bank. 14 15 (Government’s Opposition to Motion Ex. 3 at 14.) Petitioner was 16 subsequently committed on March 3, 2011 to the custody Bureau of 17 Prisons for a term of 84 months, with 3 years of supervised 18 release. (See CR Dkt. No. 163.) 19 B. 20 Evidence Proffered by the Government Prior to trial, the Long Beach Police Department detective 21 assigned to the case, Detective Donald Collier, submitted a sworn 22 declaration describing the following alleged facts to which he was 23 prepared to testify at trial and other evidence developed by the 24 police. (Gov. Ex. 1 [Declaration of Donald Collier].) 25 Prior to Defendant’s arrest on May 1, 2009, Detective Collier 26 was aware of and was investigating three other bank robberies and 27 one attempted robbery between April 10, 2009 and April 24, 2009 28 which he suspected were committed by the same person. (Id. at 1-2.) 2 1 The perpetrator in each robbery was consistently described by bank 2 employees as a black male, thirty five to forty years old, five 3 feet eleven inches to six feet tall, weighing approximately two 4 hundred and eighty five pounds, with long black curly hair. (Id. at 5 2 and Ex. 2 at 1.) Surveillance images of the three robberies and 6 attempted robberies showed the perpetrator wearing distinctive 7 clothing, including a “Kangol” type hat, sunglasses, and a white 8 tee-shirt. (Id.) 9 In response to these robberies, the Federal Bureau of 10 Investigations (FBI) circulated a Criminal Information Bulletin 11 (“Bulletin”). (Id.; Gov. Ex. 2.) The Bulletin presented 12 surveillance images of the robberies, listed the location and times 13 of the robberies, and noted that the perpetrator had a modus 14 operandi of entering banks on late Friday afternoons and passing a 15 demand note to the teller indicating he has a weapon but does not 16 want to shoot. (Collier Decl. at 2; Gov. Ex. 2.) 17 On May 1, 2009, Detective Collier was informed by police 18 dispatch that a robbery had been committed at approximately 2:30 pm 19 at Farmers & Merchants (“F&M1") Bank located at 3140 E. Anaheim 20 Street in Long Beach, California. (Id. at 3.) Detective Collier 21 promptly went to the F&M1 location to investigate. A teller 22 reported that he had noticed that a person matching the Bulletin 23 had entered the bank. (Id. at 4.) The perpetrator then handed the 24 teller a note saying he was going to shoot the teller in the head 25 unless the teller complied with his demand to hand over money. 26 (Id.) In response, the teller was able to give the perpetrator ten 27 “bait” money bills with serial numbers specifically marked and used 28 by banks in robberies, among approximately $1,566 in total. (Id.) . 3 1 (Id.) Detective Collier confirmed that the victim teller’s 2 description of the robber matched the description of the bank 3 robber in the other robberies under investigation. (Id.) He also 4 observed still images of the person who had robbed the bank, which 5 showed that the perpetrator was wearing a white tee shirt, dark 6 jeans, and dark “Kangol” type hat. (Id.) This attire matched that 7 worn by the perpetrator in the previous robberies. (Id.) 8 9 Approximately 20 minutes later, at about 3:30 pm, Detective Collier was informed by police dispatch that a person matching the 10 description in the Bulletin was inside a second Farmers & Merchants 11 Bank (“F&M2"), located at 4545 California Avenue in Long Beach, 12 waiting in line. (Id. at 5.) Shortly thereafter, dispatch reported 13 that the perpetrator had left the bank and was walking down an 14 alley. (Id.) When Detective Collier arrived at F&M2, a suspect had 15 been arrested. (Id. at 6.) 16 The arresting officer, Long Beach Police Department officer 17 Claudia Lopez, informed Detective Collier that, after F&M2 bank 18 employees recognized the person from the Bulletin, the person 19 started fumbling with a plastic checkbook, put a piece of paper in 20 his mouth, acted like he forgot something, and then left the 21 branch. (Id. at 5.) Bank employees also told Officer Lopez that the 22 person had headed towards the alley behind the bank. (Id.) As 23 Officer Lopez started driving down the alley, she observed a black 24 male, wearing a black tee shirt and blue jeans. (Id.; Mot. Ex. A 25 [Police Report by Officer Claudia A. Lopez] at 1.) She noticed that 26 the suspect was holding a white tee shirt, purple hat, and 27 sunglasses. (Id.) Officer Lopez recognized the suspect from the 28 Bulletin. (Collier Decl. at 5; Lopez Report at 1.) Based on these 4 1 observations, she arrested the suspect, who is Petitioner in this 2 case. (Id.; Collier Decl. at 5; Lopez Report at 1.) 3 Upon looking at the suspect, Detective Collier recognized the 4 man as the bank robber that he and others had been investigating in 5 the prior three bank robberies and one attempted robbery and the 6 person who robbed the F&M1 bank earlier on the same day. (Id. at 7 6.) This recognition was based on his study of the surveillance 8 images of the prior bank robberies and attempted robbery and the 9 description of the perpetrator given by victim tellers. (Id.) 10 Detective Collier was also shown the white tee shirt, dark hat, and 11 sunglasses defendant was carrying at the time of his arrest, which 12 appeared consistent with the items worn by the bank robber in the 13 previous robberies, including the robbery of F&M1 earlier that day, 14 as reflected in still images of that robbery. (Id.) Detective 15 Collier was also shown a blue plastic checkbook and bank robbery 16 note found inside the checkbook confiscated from the suspect, which 17 stated “I will shoot you and customers. This is a robbery. Open 18 your second drawer first and hand me the money then open up your 19 first drawer and hand me the money.” (Id. at 6-7; Lopez Report at 20 1.) 21 Detective Collier was also shown a set of keys recovered from 22 Petitioner at the time of his arrest, which included a keyless 23 remote entry access device. (Id.) He instructed an officer to check 24 the immediate area and try to locate the car associated with the 25 key. (Id.) Detective Collier sought to locate and search the 26 vehicle because he believed it contained evidence of the robbery 27 that day (such as money stolen from F&M1, as no money was found on 28 Defendant’s person) and because he was concerned that there could 5 1 be a loaded gun in the vehicle, posing a safety hazard. (Id. at 8.) 2 An officer located a vehicle which made a sound in response to the 3 officer pressing the keyless entry device. (Id. at 9-10.) Prior to 4 searching the vehicle, officers were able to establish, by running 5 the car’s license plate through the Department of Motor Vehicles 6 (“DMV”) database, that the vehicle was registered to Petitioner, 7 Vincent Anthony Jones, residing at 1135 M.L. King, Jr. Ave, #16, in 8 Long Beach, California. (Id. at 10.) The name and address were 9 identical to the name and address that appeared on Petitioner’s 10 California Driver’s License. (Id.) 11 Detective Collier ordered the vehicle impounded. (Id.) Prior 12 to having the car towed to a storage facility, Detective Collier 13 and FBI SA Gravis conducted an inventory of the contents of the 14 vehicle. (Id. at 11.) A large bundle of U.S. currency was found 15 inside the glove compartment of the vehicle. (Id.) Detective 16 Collier and SA Gravis compared the money found in the vehicle to 17 the serial numbers of the ten “bait” bills that were included in 18 money stolen from F&M1. (Id.) They found that the money from the 19 glove compartment included the “bait” bills. (Id.) This money taken 20 from the vehicle, which totaled $1,496, was logged as evidence. 21 (Id.) 22 C. 23 Pre and Post-Trial Motions Prior to trial, Petitioner’s Deputy Federal Public Defenders 24 Callie G. Steele and Koren L. Bell (“trial counsel”) filed six 25 motions on his behalf. These included motions to suppress (1) 26 evidence seized from Petitioner’s apartment (CR Dkt. No. 44); (2) 27 evidence seized from Petitioner’s vehicle (CR Dkt. No. 45); (3) 28 evidence seized from the apartment of Petitioner’s family member 6 1 (CR Dkt. No. 46); (4) a witness identifications based on a 2 photographic spread and show-up procedure (CR Dkt. No. 48); and (5) 3 evidence seized from Petitioner’s vehicle pursuant to a warrant, or 4 in the alternative, for a Franks hearing (CR Dkt. No. 74). 5 Petitioner’s counsel also filed on his behalf a motion to dismiss 6 the case for outrageous government conduct. (CR Dkt. No. 126.) 7 This court granted the first and third pre-trial motions to 8 suppress. (Dkt. Nos. 136, 108.) The court denied all other motions. 9 (CR Dkt. Nos. 98, 107, 109, 135.) 10 Petitioner’s guilty plea was made without a plea agreement. 11 However, as part of Petitioner’s plea, the parties and court 12 consented to Petitioner’s reservation of his right to appeal this 13 court’s denial of his motions to suppress evidence seized from his 14 vehicle and evidence seized pursuant to a warrant. (See CR Dkt. 15 Nos. 45, 74, 145; Opp. at 9.) Subsequently, Petitioner’s appellate 16 counsel, Joseph F. Walsh (“appellate counsel”), appealed both of 17 these preserved issues. (See Gov. Ex. 4 at 5.) On June 1, 2012, in 18 an unpublished decision, the Ninth Circuit affirmed this court’s 19 rulings. See U.S. v. Jones, 473 Fed.Appx. 761 (9th Cir. 2012). 20 On December 3, 2013, Petitioner filed the instant Section 2255 21 motion. (CV Dkt. No. 1.) On June 6, 2014, Petitioner filed a motion 22 to amend his Section 2255 motion. (CV Dkt. No. 8.) As discussed 23 below, Petitioner contends that his conviction should be set aside 24 due to ineffective assistance by his trial and appellate counsel. 25 26 /// 27 /// 28 /// 7 1 II. Legal Standard 2 A. Section 2255 3 Section 2255 allows federal prisoners to file motions to 4 vacate, set aside, or correct a sentence on the ground that “the 5 sentence was imposed in violation of the Constitution or laws of 6 the United States, or that the court was without jurisdiction to 7 impose such sentence, or that the sentence was in excess of the 8 maximum authorized by law, or is otherwise subject to collateral 9 attack[.]” 28 U.S.C. § 2255. The petitioner in a Section 2255 10 motion bears the burden of establishing any claim asserted in the 11 motion. To warrant relief because of constitutional error, the 12 petitioner must show that the error was one of constitutional 13 magnitude which had a substantial and injurious effect or influence 14 on the proceedings. See Hill v. United States, 368 U.S. 424, 428 15 (1962). 16 B. 17 Ineffective Assistance of Counsel Under the Sixth Amendment, all criminal defendants enjoy the 18 right to effective assistance of counsel. Strickland v. Washington, 19 466 U.S. 668, 686-700 (1984). In Strickland, the Supreme Court held 20 that in order to show ineffective assistance of counsel, a 21 defendant must demonstrate (1) that counsel’s performance was 22 deficient and fell below an objective standard of reasonableness 23 and (2) the defendant was prejudiced as a result and deprived of a 24 fair trial. Id. at 687. This two-part standard applies to 25 ineffective-assistance claims arising out of the plea process. 26 Hill v. Lockhart, 474 U.S. 52, 57 (1985); Nunes v. Mueller, 350 27 F.3d 1045, 1052 (9th Cir. 2003). In order to establish the first 28 prong, “[i]f a prisoner pleads guilty on the advice of counsel, he 8 1 must demonstrate that the advice was not ‘within the range of 2 competence demanded of attorneys in criminal cases.’” Tollett v. 3 Henderson, 411 U.S. 258, 266 (1973) (quoting McMann v. Richardson, 4 397 U.S. 759, 771 (1970)). In order to establish the second prong 5 in a plea agreement context, “the defendant must show that there is 6 a reasonable probability that, but for counsel’s errors, he would 7 not have pleaded guilty and would have insisted on going to trial.” 8 Hill, 474 U.S. at 59. 9 When a petitioner’s Section 2255 motion alleges ineffective 10 assistance of counsel, an evidentiary hearing is necessary only if, 11 assuming the petitioner’s factual allegations are true, the 12 ineffective assistance of counsel claim could prevail. See U.S. v. 13 Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). 14 15 16 III. Discussion Petitioner claims that his trial and appellate counsel were 17 ineffective for multiple reasons. Petitioner’s claim is based upon 18 (i) trial and appellate counsel’s alleged failure to argue that 19 there was an illegal search of his person in violation of the 20 Fourth Amendment; (ii) trial counsel’s alleged failure to challenge 21 the constitutionality of the “field show-up” and witness 22 identification; (iii) trial counsel’s alleged failure to challenge 23 the constitutionality of evidence seized from Petitioner’s vehicle; 24 (iv) appellate counsel’s alleged failure to challenge the 25 constitutionality of the evidence seized from Petitioner’s vehicle; 26 (v) trial and appellate counsel’s alleged failure to raise the 27 constitutionality of statements and evidence seized at the time of 28 arrest; (vi) alleged failure by trial counsel to subpoena 9 1 restaurant surveillance footage and request exculpatory evidence 2 from the government; (vii) alleged failure by trial counsel to 3 challenge the constitutionality of Petitioner’s medical record. 4 Additionally, in his motion to amend, Petitioner contends that his 5 trial counsel failed to pursue DNA testing to prove his innocence. 6 At the change of plea hearing, the court and the government 7 reviewed with Petitioner various consequences of entering a guilty 8 plea and asked Petitioner whether he understood. (Gov. Ex. 3 9 [Transcript of May 6, 2010 Change Of Plea Hearing] at 6-13.) 10 Petitioner repeatedly affirmed that he understood. (Id.) Petitioner 11 stated that he agreed with the government’s offer of proof, as 12 quoted above. (Id. at 14.) In addition, Petitioner told the court 13 that prior to entering his plea he had enough time to consider his 14 decision and that he discussed his options and his case fully with 15 his attorney. (Id. at 17.) He stated that he was satisfied with the 16 representation that his attorney provided to him. (Id. at 17.) 17 Statements made in open court at the time of a plea carry a “strong 18 presumption” of truth and are entitled to “great weight.” 19 Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Chizen v. Hunter, 20 809 F.2d 560, 562 (9th Cir. 1986). Because Petitioner made these 21 assertions in open court, Petitioner must make a strong showing to 22 prove his claims. 23 24 25 The court considers each asserted ground for relief in turn. A. Search of Person Petitioner asserts that his trial and appellate counsel were 26 ineffective because they failed to challenge the constitutionality 27 of the search of his person. (Mot. at 11.) He asserts that the 28 search violated his Fourth Amendment rights because the arresting 10 1 officers exceeded the scope of a “Terry pat-down” when searching 2 inside Petitioner’s pockets. See Terry v. Ohio, 392 U.S. 1 (1968). 3 The items seized from Petitioner’s pockets included a checkbook and 4 a bank robbery note inside the checkbook. (Mot. at 16 & Ex. M.) 5 Petitioner asserts that it was this impermissible Terry pat-down 6 that lead to the probable cause supporting his arrest. (Mot. at 7 19.) 8 9 The record does not support Petitioner’s contentions. Defendant cannot establish that his counsel was ineffective in 10 failing to challenge the search because it appears such a 11 contention would be meritless. (See Boag v. Raines, 796 F.2d 1341, 12 1344, 1344 (“Failure to raise a meritless argument does not 13 constitute ineffective assistance.”) Evidence provided by both 14 Petitioner and the government supports the conclusion that when the 15 police officers searched Petitioner’s pockets, they already had 16 probable cause and were thus conducting a search incident to a 17 lawful arrest, not a Terry pat-down. 18 “There is probable cause for a warrantless arrest and a search 19 incident to that arrest if, under the totality of the facts and 20 circumstances known to the arresting officer, a prudent person 21 would have concluded that there was a fair probability that the 22 suspect had committed a crime.” United States v. Gonzales, 749 F.2d 23 1329, 1337 (9th Cir. 1984). 24 25 26 27 28 Here, here the arresting officer, Claudia Lopez, described the arrest in her report as follows: We drove down the north/south alley and as we approached the south end of the t-alley [sic] we observed a male black walking eastbound directly at the rear of 901 San Antonio. We immediately recognized the subject as the wanted suspect on our Departmental issued Criminal Information Bulletin. . . . 11 1 Det. Rosales handcuffed the suspect and the suspect was taken into custody. I conducted a pat-down search of the suspect and found a checkbook plastic cover with a balance book and a bank robbery note... 2 3 4 (Mot. Ex. A.) As discussed above, the Bulletin referred to in the 5 statement presented four pictures of an individual during four 6 separate bank robberies or attempted robberies. (See Collier Decl. 7 at 5-6; Gov. Ex. 2.) Petitioner points to no evidence putting the 8 arresting officer’s account of recognizing Petitioner from the 9 Bulletin in dispute. 10 The officers’ immediate recognition of Petitioner is 11 sufficient to constitute probable cause. See, e.g., Gravenmier v. 12 United States, 380 F.2d 30, 31 (9th Cir. 1967) (“When the 13 investigating officer arrived in response to the manager's call, he 14 thought that appellant was a ‘dead ringer’ for the police composite 15 picture of the March robber. On the basis of the above information 16 the arresting officer had probable cause to arrest appellant as he 17 walked quickly away from the association.”) 18 Because the officers had probable cause to arrest Petitioner, 19 the search of Petitioner’s person did not violate the Fourth 20 Amendment. See Chimel v. California, 395 U.S. 752, 762-63 21 (1969)(“When an arrest is made, it is reasonable for the arresting 22 officer to search the person arrested in order to remove any 23 weapons that the latter might seek to use in order to resist arrest 24 or effect his escape.”) The failure of counsel to contend that the 25 officers lacked probable cause in conducting the search of 26 Petitioner’s person thus cannot constitute ineffective assistance. 27 /// 28 /// 12 1 B. Field Show-up Procedure Petitioner asserts that his trial counsel provided ineffective 2 3 assistance by failing to challenge the constitutionality of the 4 witness identification conducted through the “field show-up.” (Mot. 5 22-23.) This argument fails because the trial counsel did, in fact, 6 move to exclude the witness identifications based on the field 7 show-up. (CR Dkt. 48; Opp at 14.) 8 C. 9 Evidence Seized from Vehicle (Trial Counsel) Petitioner contends that his trial counsel provided 10 ineffective assistance by failing to challenge the 11 constitutionality of the evidence seized from Petitioner’s vehicle. 12 (Mot. at 33.) This argument likewise fails because Petitioner’s 13 trial counsel did move to exclude the evidence at issue. Indeed, 14 his trial counsel brought three separate pre-trial motions on the 15 subject: a Motion to Suppress Evidence Found in Vehicle on May 1, 16 2009 (CR Dkt. 45); a Motion to Suppress Evidence Seized in Vehicle 17 Pursuant to a Warrant or, in the Alternative, For a Franks Hearing 18 (CR Dkt. 74); and a Motion to Reconsider Suppression of Evidence 19 Seized Pursuant to Warrant or, in the alternative, for a Franks 20 Hearing. (DR Dkt. 125). 21 D. 22 Evidence Seized from Vehicle (Appellate Counsel) Petitioner contends that his appellate counsel provided 23 ineffective assistance by failing to challenge the 24 constitutionality of the evidence seized from his vehicle. (Mot. at 25 40.) This contention, too, lacks merit, as his appellate counsel 26 did raise the issue on behalf of Petitioner in his appeal before 27 28 13 1 the Ninth Circuit.1 2 761 (9th Cir. 2012). 3 E. 4 (Gov. Ex. 4 at 5; U.S. v. Jones, 473 Fed.Appx. Statements and Evidence Seized at Time of Arrest Petitioner contends that both his trial and appellate counsel 5 provided ineffective assistance by failing to challenge the 6 constitutionality of statements and evidence seized at the time of 7 his arrest. (Mot. at 48-49.) In particular, Petitioner asserts that 8 his counsel unreasonably failed to challenge the admission of 9 statements made prior to his being Mirandized. (Id.) The motion 10 does not specify the statements Petitioner believes his counsel 11 should have moved to excluded. The only statements in the record 12 allegedly made by Petitioner before he was Mirandized were: “What’s 13 going on? I was having some Chinese food at the restaurant.” (Mot. 14 Ex. A.) Petitioner allegedly made these statements while he was 15 being placed in the back seat of the patrol car after being 16 arrested. (Id.) His counsels’ failure to move to exclude the 17 statements cannot constitute ineffective assistance, as there would 18 be no reason for Defendant’s counsel to seek to exclude the 19 statements because they were exculpatory, not inculpatory. In fact, 20 the government sought to exclude the statements as self serving 21 exculpatory evidence and inadmissable hearsay. (See Motion in 22 Limine re Admissibility of Evidence. (CR Dkt. No. 17.) Petitioner 23 24 25 26 27 28 1 Appellate counsel raised two issues on appeal: (1) “Whether the court erred in denying appellant’s motion to suppress the money seized from his car on May 1, 2009, where the motion was made on the grounds that the police lacked probable cause to conduct a warrantless search?” and (2) “Whether the court erred in denying appellant’s motion to suppress the cell phone and handwritten papers seized from his car on May 15, 2009, where the police made material omissions and false representations in the search warrant affidavit?” (Gov. Ex. 4 at 5.) 14 1 opposed the motion and the court allowed the statements as 2 admissible to show Petitioner’s state of mind at the time of his 3 arrest. (Dkt. Nos. 76 at 1-3; 98.) 4 F. 5 Restaurant Surveillance Tape and Evidentiary Hearing Petitioner contends that his trial counsel provided 6 ineffective assistance by (1) failing to subpoena video 7 surveillance at a Chinese food restaurant where, as noted above, 8 Petitioner claimed he was eating prior to his arrest and (2) 9 failing to file a motion requesting exculpatory evidence from the 10 government for the surveillance tape. (Mot. at 58, 61.) The 11 arguments are unsuccessful. 12 Both the government and Petitioner’s counsel investigated the 13 alleged alibi. According to the arrest report, on the day of the 14 arrest an officer visited the restaurant and reviewed the 15 surveillance video, concluding that “the suspect was not observed 16 in the restaurant surveillance video.” (Mot. Ex. A.) The government 17 produced this report to Petitioner. Subsequently, an investigator 18 for Petitioner’s counsel visited the restaurant and spoke with the 19 manager, who confirmed that the police had told him that the man in 20 the film was not the man they were looking for. (Id. Ex. C.) 21 Specifically, the manager stated that the man in the film had no 22 hair and the police told him that the man they were looking for had 23 long hair (like Petitioner). (Id.) The manager stated that he did 24 not believe the pictures would still be on the camera’s memory 25 chip. (Id.) In February 2010, according to a report produced to 26 Petitioner, an FBI investigator interviewed the manager, who 27 reported that “he did not recall seeing a black male on the video 28 recording” and did not “specifically remember a black male coming 15 1 into the restaurant on the same day that the LBPD officers had come 2 in.” (Mot. Ex. D.) He stated that he no longer had the video 3 recording. (Id.) 4 As to the first prong of the ineffective assistance of counsel 5 inquiry, the court is not persuaded that counsel’s performance in 6 failing to subpoena the video “fell below an objective standard of 7 reasonableness,” Strickland, 466 U.S. at 466 U.S. 688, rendering 8 counsel’s advise to Petitioner with respect to his plea 9 ineffective. It appears from the record before the court that a 10 subpoena of the video may have been futile as the recording no 11 longer existed. Petitioner’s trial counsel may also have found the 12 police’s representations regarding the video credible and thus 13 reasonably made a strategic decision to focus resources on other 14 aspects of the case. 15 Even assuming that his counsel erred in not subpoenaing the 16 video, the court is not persuaded that there is a reasonable 17 probability that, but for counsel’s alleged error, Petitioner would 18 not have pleaded guilty and would have insisted on concluding his 19 trial. See Hill, 474 U.S. at 59. The admissible evidence proffered 20 against Petitioner in this case with respect to the robbery of the 21 F&M1 bank was overwhelming. As described above, this evidence 22 included bank surveillance images, a bank robbery note allegedly 23 found on Petitioner’s person, and marked “bait” bills from the 24 robbery allegedly found in the glove compartment of Petitioner’s 25 vehicle. (See Collier Decl. at 3, 11; Lopez Report at 1; Mot. Ex. 26 A.) In view of this evidence, there is not a reasonable probability 27 that, had the video been subpoenaed, it would have shown Petitioner 28 16 1 was at the restaurant at the time the F&M1 was robbed, and that, as 2 a result, Petitioner would have entered a different plea. 3 With respect to Petitioner’s assertion that his counsel erred 4 by failing to file a motion asserting a Brady violation with 5 respect to the surveillance tape, this contention likewise fails. 6 The government’s obligation is to preserve and produce any 7 potentially exculpatory evidence it has in its possession. See 8 Brady v. Maryland, 373 U.S. 83, 87 (1963); Strickler v. Greene, 527 9 U.S. 263, 280 (1999). Here, however, there is no reason to conclude 10 that the video was potentially exculpatory. The government timely 11 provided to Defendant the evidence it had in its possession related 12 to the Chinese restaurant, including a report stating that its 13 review of the video reflected that the video was not exculpatory. 14 Plaintiff has pointed to no reason to conclude that the video 15 contained anything other than what the government described. 16 G. Medical Records 17 Petitioner asserts that his trial counsel provided ineffective 18 assistance by granting prosecutors permission to review his medical 19 records without his consent and then allowing prosecutors to use 20 such records against Defendant in their prosecution of him. (Mot. 21 at 65.) This claim fails. Contrary to Petitioner’s understanding, 22 there exists no physician-patient evidentiary privilege in criminal 23 proceedings under federal law under which Petitioner’s counsel 24 could have sought to exclude records obtained from his 25 physician(s). See Galarza v. United States, 179 F.R.D. 291, 294 26 (S.D. Cal. 1998) (“Under federal common law there is no physician- 27 patient privilege.”; In re Grand Jury Proceedings, 801 F.2d 1164, 28 1169 (9th Cir. 1986). 17 1 Even were the records at issue subject to an evidentiary 2 privilege, Petitioner has not identified any manner in which his 3 medical records were relied upon by the government in the case it 4 planned and partly put on against him prior to his guilty plea. The 5 court’s review of the record does not reflect any use or reference 6 to medical records by the government. As a result, Petitioner has 7 not shown that there is a reasonable probability that, but for his 8 counsel’s alleged error in failing to move to exclude his medical 9 records, Petitioner would not have pleaded guilty. See Hill, 474 10 U.S. at 59. Petitioner therefore has no ineffective assistance 11 claim in relation to medical records. 12 F. 13 Motion to Amend re DNA Testing On June 6, 2014, Petitioner filed a motion to amend his 14 original Section 2255 motion pursuant to Rule 15(c), which the 15 government opposes. (Dkt. Nos. 8, 9.) The motion seeks to add a 16 claim that Petitioner’s trial counsel provided ineffective 17 assistance by failing to subpoena the results of a DNA test he 18 believes was performed by the government or to otherwise pursue the 19 use of DNA testing to support his case. (First Motion to Amend at 20 3, 6.) Petitioner asserts that he voluntarily gave the government 21 his DNA for testing at the time of his arrest, and then 22 subsequently requested, on various occasions leading up to and 23 during trial, that his counsel subpoena the results of any testing 24 performed by the government, but that his counsel failed to do so. 25 (Id. at 3-4.) He asserts that a comparison between his DNA and that 26 found on the suspected robbers’ disguise (which was allegedly found 27 on his person at the time of his arrest) would show his innocence. 28 (See id. at 6; Collier Decl. at 4-5.) Petitioner also asserts that 18 1 his trial counsel never filed a motion asserting that Det. Collier 2 and Officer Lopez committed perjury when they testified under oath 3 that no DNA tests were ever conducted or existed. (Mot. Am. 1 at 4 4.) 5 As an initial matter, Petitioner’s motion to amend is time- 6 barred. As an original motion, Petitioner’s amendment would be 7 time-barred because it was not filed within one year from the date 8 on which his conviction became final, December 10, 2012, the date 9 that the Supreme Court denied his petition for writ of certiorari. 10 See 28 U.S.C. 2255; Griffith v. Kentucky, 479 U.S. 314, 107 (1987); 11 Opposition Ex. A. Although Petitioner’s initial motion, filed 12 December 3, 2013, was timely, the motion to amend, filed June 6, 13 2014, was filed outside of the one-year period. (Dkt Nos. 1, 8.) 14 Under Rule 15(c)(2), an amendment to a pleading may relate 15 back to the date of the original filing and therefore be deemed 16 timely “where the claim or defense asserted in the amended pleading 17 arose out of the conduct, transaction, or occurrence set forth or 18 attempted to be set forth in the original pleading.” Fed. R. Civ. 19 P. 15(c)(2). The Supreme Court has held that Rule 15(c)(2) applies 20 to post-conviction motions, including Section 2255 motions. See 21 Mayle v. Felix, 545 U.S. 644, 657-58 (2005). To relate back to the 22 original Section 2255, however, an amended Section 2255 claim must 23 concern one of the “separate categories of facts supporting the 24 grounds for relief” asserted in the original motion, each of which 25 “delineate an ‘occurrence.’” Id. at 661. On this basis, the court 26 held in Felix that an amended petition challenging the defendant’s 27 statements at a pretrial interrogation did not relate back to the 28 19 1 original petition which addressed the admission of videotaped 2 testimony of a witness. Id. at 657-661. 3 Here, Petitioner’s proposed amended Section 2255 petition does 4 not relate to the original petition because, while the original 5 petition discussed numerous other issues as reviewed above, it did 6 not did not raise or discuss DNA testing. The amended petition 7 therefore does not relate to the same “conduct, transaction, or 8 occurrence” under Rule 15(c)(2) and is thus time-barred. 9 Even were the amended petition not time-barred, the court 10 would deny the petition on the merits. Petitioner’s argument that 11 DNA tests would have established his innocence is, under the facts 12 of this case, too speculative to support an ineffective assistance 13 claim. There is, as an initial matter, no basis other than 14 speculation to conclude that any DNA test was ever performed in 15 this case. Moreover, in the face of the powerful evidence proffered 16 against him, as discussed above, Petitioner has not shown that 17 there is any reasonable probability that, were a DNA test performed 18 comparing his DNA with DNA found on the robber’s disguise (which, 19 as noted, was allegedly found on his person at the time of his 20 arrest) would have (1) found a mismatch and (2) been sufficient to 21 cause his counsel to recommend against accepting a guilty plea. See 22 Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir.2000) (no 23 Strickland prejudice when no showing that proper investigation 24 would have uncovered favorable evidence); Paul v. Gibson, 2014 WL 25 2547594 (C.D. Cal. Apr. 22, 2014) report and recommendation 26 adopted, , 2014 WL 2547596 (C.D. Cal. June 5, 2014) (“Mere 27 speculation about the existence of favorable DNA evidence is 28 insufficient to show ineffective assistance.”) 20 1 G. Motion to Amend to Add Claim that Counsel Failed to Present 2 Proper Case Law 3 On July 11, 2014, Petitioner filed a second motion to amend 4 his original habeas petition. (Dkt. No. 10.) The gravamen of the 5 motion is that Petitioner’s trial and appellate counsel provided 6 ineffective assistance by failing to challenge the court’s alleged 7 misapprehension of the holding of a case, California v. Carney, 471 8 U.S. 386 (1985), that was discussed at a suppression hearing 9 concerning evidence seized from Petitioner’s vehicle on March 23, 10 2011. Unlike the previous motion to amend, this motion relates back 11 to Petitioner’s original Section 2255 motion, which raised an 12 ineffective assistance claim concerning suppression of the same 13 evidence. However, the claim is plainly meritless. 14 In Carney, the Supreme Court explained the longstanding rule 15 that no warrant is necessary in certain circumstances for the 16 search of an automobile where probable cause exists and found that 17 exception to the warrant requirement applicable in the case of a 18 mobile home. 471 U.S. at 395. Petitioner contends that the court 19 misconstrued Carney as standing for the proposition that no 20 probable cause is necessary when conducting a search of a vehicle. 21 (See Second Motion to Amend at 6-9.) He contends that his trial 22 counsel provided ineffective assistance by failing to challenge 23 this incorrect interpretation of Carney during the suppression 24 hearing. (See id. at 2.) 25 Petitioner mischaraterizes the record. The transcript of the 26 March 23, 2011 suppression hearing demonstrates that the court and 27 counsel for both Petitioner and the government understood that 28 Carney did not obviate the need for a showing of probable cause. 21 1 (See CR. Dkt. No. 168 at 26-31.) Indeed, the brief mention of 2 Carney was made in the context of a discussion concerning the 3 existence of probable cause to search Petitioner’s vehicle, which 4 was followed by the testimony of Det. Collier concerning the basis 5 for the government’s contention that the vehicle’s search was 6 supported by probable cause. (Id. at 26-55.) Following Det. 7 Collier’s testimony, the court issued a ruling denying the motion 8 to suppress on the grounds that the search of the vehicle was 9 justified by probable cause in the circumstances. (Id. at 67:19- 10 68:5.) There is no evidence that the court or the parties 11 misunderstood or misapplied Carney. Even if Carney were misstated 12 by any party or the court to suggest no showing of probable cause 13 was necessary to search the vehicle, Petitioner suffered no 14 prejudice because the court declined to suppress the evidence 15 seized during the search on the basis of its finding that the 16 search was supported by probable cause. 17 Petitioner additionally argues that his appellate counsel 18 “‘failed’” to file and argue the ‘proper argument’” to suppress the 19 evidence seized from his vehicle. (Second Motion to Amend at 20.) 20 Although nominally framed as an ineffective assistance claim, 21 Petitioner essentially makes a merits argument that the search 22 violated the Fourth Amendment because the officers did not have 23 probable cause to search his vehicle. Fourth Amendment claims are 24 not cognizable under federal habeas review, unless no prior 25 opportunity was provided to litigate those claims. Stone v. Powell, 26 428 U.S. 465, 481-82 (1976). As discussed above, Petitioner’s trial 27 counsel filed a suppression motion and Petitioner’s appellate 28 counsel filed an appeal on this issue, which the trial court and 22 1 the Ninth Circuit, respectively, denied. In any case, having 2 reviewed the appeal, the court does not find any notable deficiency 3 in the quality of Petitioner’s appellate counsel’s advocacy and 4 certainly none that would support an ineffective assistance claim. 5 See, e.g. Jones v. Barnes, 463 U.S. 745, 754 (1983) (“For judges to 6 second-guess reasonable professional judgments and impose on 7 appointed counsel a duty to raise every ‘colorable’ claim suggested 8 by a client would disserve the very goal of vigorous and effective 9 advocacy underlying [Anders v. California, 386 U.S. 738 (1967)]. 10 Nothing in the Constitution or our interpretation of that document 11 requires such a standard.”) (quotations in original). 12 Accordingly, the second motion to amend will be granted but 13 the additional claims asserted in the motion, which is incorporated 14 into the original habeas petition, lack merit and will be denied. 15 16 17 IV. Conclusion For the reasons stated above, Petitioner’s first Motion to 18 Amend Original and Timely Filed 28 U.S.C. § 2255 Motion Pursuant to 19 Relief Under Rule 15(c) (Dkt. No. 8) is DENIED; Petitioner’s second 20 Motion to Amend Original and Timely Filed 28 U.S.C. § 2255 Motion 21 Pursuant to Relief Under Rule 15(c) (Dkt. No. 10) is GRANTED; and 22 Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence 23 Pursuant to 28 U.S.C. § 2255 (Dkt. No. 1), which incorporates the 24 claims made in Petitioner’s second motion to amend, is DENIED. 25 IT IS SO ORDERED. 26 Dated: August 26, 2014 DEAN D. PREGERSON United States District Judge 27 28 23
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