Jackson v. USA, No. 3:2014cv00437 - Document 2 (D. Nev. 2014)

Court Description: ORDER granting 83 Motion to Proceed In Forma Pauperis in case 3:11-cr-142; denying 84 Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 USC 2255 in case 3:11-cr-142. The 1 Motion to Vacate, Set Aside, or Correct Se ntence Pursuant to 28 USC 2255 is stricken and the Clerk shall close this case. The Clerk shall enter this order on the dockets of both 3:11-cr-142 and 3:14-cv-437. Signed by Judge Robert C. Jones on 9/16/2014. (Copies have been distributed pursuant to the NEF - KR)
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Jackson v. USA Doc. 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 ) ) Plaintiff, ) ) ) vs. ) ) CLIFTON JAMES JACKSON, ) ) Defendant. ________________________________________ ) ) ) CLIFTON JAMES JACKSON, ) ) Plaintiff ) ) vs. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ________________________________________ ) UNITED STATES OF AMERICA, 7 8 9 10 11 12 13 14 15 16 3:11-cr-00142-RCJ-VPC-1 3:14-cv-00437-RCJ ORDER 17 Pending before the Court is Defendant’s Motion to Vacate, Set Aside or Correct Sentence 18 Pursuant to 28 U.S.C. § 2255 (ECF No. 84). For the reasons given herein, the Court denies the 19 motion. 20 I. FACTS AND PROCEDURAL HISTORY 21 On February 8, 2012, a jury convicted Defendant Clifton James Jackson of one count of 22 Possession of a Firearm by a Convicted Felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The Court 23 denied a motion for new trial that was grounded entirely on the FPD’s alleged ineffective 24 assistance, which claims are not cognizable under Rule 33, but rather must be brought in federal 25 Dockets.Justia.com 1 habeas corpus proceedings under 28 U.S.C. § 2255, or in some cases on direct appeal. United 2 States v. Pirro, 104 F.3d 297, 299–300 (9th Cir. 1997) (citing United States v. Hanoum, 33 F.3d 3 1128, 1130 (9th Cir. 1994)); accord United States v. Mendoza, Nos. 07–50002 and 09–50641, 4 2012 WL 1893538, at *2 (9th Cir. May 25, 2012) (citing id. at 299). Defendant appealed, and 5 the Court of Appeals affirmed, declining to address the ineffective assistance of trial counsel 6 claims on direct appeal, rejecting Defendant’s argument that there was insufficient evidence to 7 convict him, and rejecting Defendant’s argument that his 1991 Virginia conviction for 8 distributing cocaine did not support a “serious drug offense” enhancement to his sentence. 9 Defendant has asked the Court to vacate, set aside, or correct his sentence under 28 10 U.S.C. § 2255. Defendant has filed the motion both in the underlying criminal case and 11 separately such that the Clerk has opened a second, civil case based on the motion. Only the 12 filing of the motion in the underlying criminal case was proper. The Court will therefore strike 13 the motion in the separate civil case and order the Clerk to close that case. The Court will 14 address the motion on the merits in the underlying criminal case. 15 II. 16 LEGAL STANDARDS Substantive legal arguments not raised on direct appeal are said to be “procedurally 17 defaulted” and cannot be raised later in a collateral attack. See Massaro v. United States, 538 18 U.S. 500, 504 (2003). There are exceptions to the procedural default rule when a defendant can 19 show (1) cause and prejudice, or (2) actual innocence. United States v. Ratigan, 351 F.3d 957, 20 962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 613, 622 (1998)). This has been 21 the test since Wainwright v. Sykes, 433 U.S. 72, 90–91 (1977). 22 “Cause” means “some objective factor external to the defense” that impeded the 23 defendant’s efforts to comply with the procedural requirement. McCleskey v. Zant, 499 U.S. 467, 24 493 (1991). Among the reasons that can constitute “cause” are government coercion, see United 25 Page 2 of 7 1 States v. Wright, 43 F.3d 491, 497–99 (10th Cir. 1994), ineffective assistance of counsel, see 2 McCleskey v. Zant, 499 U.S. 467, 494 (1991), and a “reasonable unavailability of the factual or 3 legal basis for the claim.” See id. 4 Ineffective assistance of counsel is “cause” excusing procedural default only where the 5 failure rises to the level of a constitutional violation under Strickland. United States v. Skurdal, 6 341 F.3d 921, 925–27 (9th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). 7 Ineffective assistance of counsel claims meeting the Strickland test are not procedurally 8 defaulted, and such claims can be brought for the first time under a § 2255 motion even if they 9 could also have been brought on direct appeal. Massaro, 538 U.S. at 504. Ineffective assistance 10 of counsel claims under § 2255 are essentially a special variety of “cause and prejudice” claim. 11 The prejudice required is the same, but the cause is based specifically on constitutionally 12 deficient counsel rather than some other miscellaneous “objective factor external to the defense.” 13 McCleskey, 499 U.S. at 493. 14 The Sixth Amendment right to effective assistance of counsel is violated when: (1) 15 counsel’s performance was so deficient so as not to constitute the “counsel” guaranteed by the 16 Sixth Amendment; and (2) the deficiency prejudiced the defense by “depriv[ing] the defendant of 17 a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. There is a “strong 18 presumption” of reasonable professional conduct. Id. at 698. When this presumption is 19 overcome and an attorney’s “unprofessional errors” are such that there is a “reasonable 20 probability” the result would have been different had the errors not occurred, the defendant has 21 been deprived of his Sixth Amendment rights. Kimmelman v. Morrison, 477 U.S. 365, 375 22 (1986). “Reasonable probability” is a lower standard than “more likely than not.” Nix v. 23 Whiteside, 475 U.S. 157, 175 (1986). The analysis does not focus purely on outcome. Lockhart 24 v. Fretwell, 506 U.S. 364, 369 (1993). The trial must also have been fundamentally unfair or 25 Page 3 of 7 1 unreliable. Williams v. Taylor, 529 U.S. 362, 391–92 (2000). Counsel’s tactical decisions with 2 which a defendant disagrees do not rise to the level of ineffective assistance unless the decisions 3 are so poor as to meet the general test for constitutionally defective assistance. See Dist. 4 Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 85–86 (2009). 5 “Prejudice” means that “the constitutional errors raised in the petition actually and 6 substantially disadvantaged [a defendant’s] defense so that he was denied fundamental fairness.” 7 Murray v. Carrier, 477 U.S. 478, 494 (1986). A showing of prejudice requires demonstration of 8 a “reasonable probability that . . . the result of the proceedings would have been different. A 9 reasonable probability is a probability sufficient to undermine confidence in the outcome.” 10 Vansickel v. White, 166 F.3d 953, 958–59 (9th Cir. 1999) (quoting Strickland, 466 U.S. at 694)). 11 Also, issues “clearly contemplated by, and subject to, [a] plea agreement waiver” cannot 12 be brought in a § 2255 motion. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see 13 United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (holding that waiver of the right to 14 appeal does not constitute “cause” excusing procedural default on an issue). This is a 15 commonsense rule. If waiver of the right to appeal itself constituted cause excusing a failure to 16 appeal, a defendant who had waived his right to appeal would have the same ability to obtain 17 review as a defendant who had not waived that right. 18 III. 19 ANALYSIS Defendant raises four grounds in his Motion: (1) trial counsel was ineffective for failing 20 to move to suppress the black bag and its contents; (2) trial counsel was ineffective for failing to 21 interview critical government witnesses and for failing to conduct a thorough investigation prior 22 to trial; (3) appellate counsel was ineffective for failing to raise the issues of ineffective 23 assistance of trial counsel noted in grounds 1 and 2; and (4) trial counsel was ineffective for 24 25 Page 4 of 7 1 failing to challenge the Government’s use of a previous conviction for attempted robbery to 2 enhance Defendant’s sentence. 3 A. 4 The Court rejects this ground. The evidence at trial was uncontroverted that the black Ground 1 - Failure to Move to Suppress the Black Bag 5 bag found at the casino containing the firearm and Defendant’s library card was not taken from 6 Defendant’s person or room but was found abandoned on the casino floor. Even assuming the 7 casino employee who found the bag and the security guards who reported the findings to the 8 police were state actors (they were not), no warrant is required to take possession of and search 9 abandoned property. See Abel v. United States, 362 U.S. 217, 240–41 (1960). Nor was any 10 warrant required to ask a librarian to identify the owner of the library card, because that act 11 involved no search of anything belonging to Defendant, but only of library records, based on an 12 abandoned piece of property. Trial counsel was not ineffective for failing to move to suppress 13 the contents of the bag under the Fourth Amendment. 14 B. Ground 2 - Failure to Interview Government Witnesses and Conduct a Thorough Investigation Prior to Trial 15 Defendant argues that trial counsel failed to interview a single Government witness prior 16 to trial. In the present case, however, the expected testimony of the Government’s witnesses was 17 known before trial. The police reports and witness statements—which together represented 18 nearly the totality of the expected trial testimony—had long been available. Under such 19 circumstances, it is not ineffective assistance for defense counsel to decline to further interview 20 witnesses. See Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (citing United States 21 v. Decoster, 624 F.2d 196, 209 (D.C. Cir.1976) (en banc) (“A claim of failure to interview a 22 witness may sound impressive in the abstract, but it cannot establish ineffective assistance when 23 24 25 Page 5 of 7 1 the person’s account is otherwise fairly known to defense counsel.”)). The Court rejects this 2 ground. 3 C. 4 The Court rejects this ground. The memorandum opinion from the Court of Appeals Failure to Raise Grounds 1 and 2 on Direct Appeal 5 indicates that appellate counsel indeed attempted to bring ineffective assistance of counsel claims 6 on direct appeal, but that the Court of Appeals declined to entertain them on direct appeal 7 because the record was not sufficiently developed. (See Mem. Op. 2–3, ECF No. 74 in Case No. 8 3:11-cr-142). Also, as noted, supra, the ineffective assistance of trial counsel claims are without 9 merit, so no failure of appellate counsel to bring the claims can have resulted in prejudice. 10 D. Failure to Challenge the Sentencing Enhancement Based on the Previous Attempted Robbery Conviction 11 Defendant argues that trial counsel was ineffective for failing to challenge his prior 12 conviction for attempted robbery, which resulted in the imposition of the fifteen-year minimum 13 sentence under 18 U.S.C. § 924(e)(1). But Defendant’s argument as to why counsel should have 14 so objected is baseless. Defendant appears to argue that the prior conviction cannot have been 15 used against him because he had been honorably discharged from parole for the prior offense, 16 and that the discharge paperwork contained no prohibition against possessing firearms. But the 17 federal offense at issue here carries its own restriction on the possession of firearms by certain 18 felons, independent of any state-law restrictions. See 18 U.S.C. § 922(g)(1) (“It shall be unlawful 19 for any person . . . who has been convicted in any court of, a crime punishable by imprisonment 20 for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or 21 possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or 22 ammunition which has been shipped or transported in interstate or foreign commerce.”). There is 23 no element of a § 922(g)(1) offense requiring that a defendant be under any independent state24 25 Page 6 of 7 1 law restriction against the possession of firearms. And even if there were, Nevada law in fact 2 prohibited Defendant’s possession of the firearm. See Nev. Rev. Stat. § 202.360(1)(a). The 3 Court therefore rejects this ground. 4 5 6 7 8 9 CONCLUSION IT IS HEREBY ORDERED that the Motion to Proceed In Forma Pauperis (ECF No. 83 in Case No. 3:11-cr-142) is GRANTED. IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 84 in Case No. 3:11-cr-142) is DENIED. IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside or Correct Sentence 10 Pursuant to 28 U.S.C. § 2255 (ECF No. 1 in Case No. 3:14-cv-437) is STRICKEN, and the Clerk 11 shall close that case. 12 IT IS FURTHER ORDERED that the Clerk shall enter this Order into the dockets of both 13 of the above-captioned cases. 14 IT IS SO ORDERED. 15 Dated: September August, 2014. Dated this 20th day of 16, 2014. 16 17 ___________________________________ ROBERT C. JONES United States District Judge 18 19 20 21 22 23 24 25 Page 7 of 7