United States District Court, D. Arizona
Decided April 15, 2015.
Richard Larry Self, also known as Richard Self, Petitioner (3:13-cv-08199-DGC), Pro se, LITTLETON, CO.
For USA, Respondent (3:13-cv-08199-DGC): Heather H Sechrist, LEAD ATTORNEY, U.S. Attorneys Office - Tucson, AZ, Tucson, AZ.
For USA, Plaintiff (3:10-cr-08036-DGC-1): Heather H Sechrist, U.S. Attorneys Office - Tucson, AZ, Tucson, AZ; Roger W Dokken, U.S. Attorneys Office - Phoenix, AZ, Phoenix, AZ.
David G. Campbell, United States District Judge.
Movant Richard Larry Self filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. CVDoc. 1. United States Magistrate Judge James F. Metcalf issued a report and recommendation (" R& R" ) recommending that the motion be denied. CVDoc. 29 at 52. Movant filed an objection to the R& R on February 2, 2015. CVDoc. 34. For the reasons set forth below, the Court will accept the R& R and deny Movant's motion.
On March 9, 2010, a grand jury indicted Movant on four counts of Possession of Child Pornography, with forfeiture allegations. CRDoc. 1. Movant was arrested on March 14, 2010, and the Court appointed trial counsel soon after. CRDocs. 5, 14, 19. Movant made four motions to continue trial, the last of which was filed on September 17, 2010. CRDocs. 20, 23, 26, 32. The Court granted all four motions and scheduled trial to start November 17, 2010. CRDocs. 21, 25, 28, 41, 49.
On September 21, 2010, the government filed a superseding indictment charging Movant with three counts of Transportation of Child Pornography, three counts of Possession of Child Pornography, and forfeiture allegations. CRDoc. 35. On October 13, 2010, Movant's counsel filed a motion to suppress evidence obtained from the search warrant issued January 27, 2010. CRDoc. 47. The motion was based on staleness and lack of probable cause. CRDoc. 47 at 6-10. The parties fully briefed the issue, and the Court denied Movant's motion. CRDocs. 47, 56, 65, 69.
On November 10, 2010, one week before Movant's trial date, Movant requested new counsel. CRDoc. 74; CVDoc. 34 at 37-38. Movant believed his attorney had failed to properly investigate his case (by not pursuing leads Movant suggested or interviewing witnesses Movant claimed would discredit prosecution witnesses), did not believe he was innocent, and would not present him with an unbiased defense. After considering Movant's complaints, the Court rejected the request, stating that based on the information Movant had provided, a different lawyer would not give Movant a better defense than the one current counsel was set to present. CRDoc. 74.
Trial proceeded as scheduled, and the jury found Movant guilty on all counts. Id. ; CRDoc. 90. Counsel moved for a downward departure and variance at the sentencing. CRDoc. 93. The Court denied the request for an extension and Movant was sentenced to concurrent terms of 135 months for each transportation charge and 120 months for each possession charge -- an effective sentence of 135 months. CRDocs. 95, 97.
On appeal, Movant challenged the trial court's denial of his motion to suppress, arguing that the search warrant was stale and insufficient to establish probable cause. CRDoc. 117. Movant also challenged his sentence as procedurally erroneous and substantively unreasonable. Id. The Ninth Circuit rejected Movant's claims and affirmed his conviction and sentence. Id.
On July 29, 2013, Movant filed his pro se motion to vacate. CVDoc. 1. Magistrate Judge Metcalf issued his R& R on October 31, 2014. CVDoc. 29. Movant has filed an objection on Grounds One through Eight. CVDoc. 34.
II. Legal Standard.
Under § 2255, a person in custody may " move the court which imposed the sentence to vacate, set aside or correct the sentence" on the grounds that " the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
A party may file specific written objections to the R& R's proposed findings and recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must undertake a de novo review of those portions of the R& R to which specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).
In the context of ineffective assistance of counsel claims, " [j]udicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court must apply a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. To prevail on a claim for ineffective assistance, Movant must show that " (1) his attorney's performance was unreasonable under prevailing professional standards, and (2) a reasonable probability that but for counsel's unprofessional errors, the results would have been different." United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 687-94). Strickland defines reasonable probability as " a probability sufficient to undermine confidence in the outcome." Id.
1. Ground 1: Ineffective Assistance on Search ...