United States District Court, D. Arizona
PAUL G. ROSENBLATT, District Judge.
Having reviewed de novo the Report and Recommendation of Magistrate Judge Aspey (Doc. 22) in light of movant Nathan Brooks Manuelito's Pro Se Objection to Report and Recommendation (Doc. 23), the Court finds that the objections should be overruled because the Magistrate Judge correctly concluded that the movant's motion, filed pursuant to 28 U.S.C. § 2255, should be denied.
The movant stabbed Danny Ethelbah three times on April 22, 2009, which resulted in Ethelbah receiving life threatening wounds. On July 1, 2009, a federal grand jury indicted the movant on two felony counts arising from the stabbing: Count 1 being assault with a dangerous weapon, in violation of 18 U.S.C. § 1153 and § 113(a)(3), and Count 2 being assault resulting in serious bodily injury, in violation of 18 U.S.C. § 1153 and §113(a)(6). The indictment alleged that the crimes occurred within the confines of the Fort Apache Indian Reservation and that the movant is an Indian. The movant conceded at trial that he stabbed Ethelbah, but argued that he did so in self-defense. At the conclusion of movant's trial on October 16, 2009, the jury acquitted the movant on Count 1, but found him guilty on Count 2, assault resulting in serious bodily harm. The movant was sentenced to 110 months in prison on March 22, 2010. The movant, through his appellate counsel, raised one issue on appeal, which was that the Court had given an erroneous model jury instruction on self-defense. The Ninth Circuit Court of Appeals, concluding that the jury instruction was appropriate, affirmed the movant's conviction in its mandate issued on March 15, 2012.
The movant timely filed his pending § 2255 motion on April 1, 2013. The movant's motion raises six grounds for relief, which include numerous subclaims. The first ground alleges that the movant's conviction on Count 2 after being acquitted of Count 1 constituted a violation of his double jeopardy rights. The second ground alleges that the movant's due process rights were violated because the Government withheld exculpatory DNA evidence in violation of Brady v. Maryland, and because the Court granted two motions in limine submitted by the Government, whereby it excluded evidence related to victim Danny Ethelbah's prior acts and tribal convictions and the evidence of drugs in his system, without stating essential findings on the record supporting the exclusion, which the movant alleges prevented him from properly presenting his claim of self-defense to the jury and from properly arguing the propriety of the exclusion on appeal. The third ground alleges that the Court failed to instruct the jury that it needed to unanimously accept or reject the movant's self-defense claim, that the Court failed to give a jury instruction regarding a lesser included offense of assault by striking, beating, or wounding, that the Court failed to include a verdict form that specifically included the option of finding the movant not guilty by reason of self-defense, that the prosecutor committed misconduct in the form of vouching during closing arguments, that the composition of the jury violated the movant's equal protection rights because the Government excluded all of the Native Americans from the jury panel, that the movant was not given a medical evaluation until three weeks after the incident which deprived him of the medical documentation of his injured back and ribs that would have supported his self-defense claim, and that the trial transcript contained two transcription errors which prejudiced him. The fourth claim alleges that the Court committed error in sentencing the movant because the Court improperly sentenced him as a career criminal, failed to give him a two point reduction for acceptance of responsibility, ordered him to pay an amount of restitution that was not supported by proper evidence, and cut him off during his sentencing allocution. The fifth claim alleges that the movant received ineffective assistance of counsel from his trial counsel, basically due to that counsel's failure to object to the above mentioned trial errors. The sixth claim alleges that the movant received ineffective assistance of appellate counsel, basically due to counsel failing to raise some of the above mentioned errors on appeal.
In his objections to the Report and Recommendation, the movant makes several references to the Magistrate Judge being biased against him, which arise from the Magistrate Judge's comment in his Report and Recommendation that "Respondent filed an exceptionally through and well-reasoned Response" in opposition to the movant's § 2255 motion, and from the Magistrate Judge's failure to rule in the Report and Recommendation on the movant's Motion for Evidentiary Hearing on all Grounds [and] Reasons Specified in Motion and § 2255 [and] Motion Ad Testificandum on all Grounds (Doc. 20, filed August 4, 2014). As a preliminary matter, the Court rejects as meritless the movant's contention that the Magistrate Judge "allied" himself with the Government and thereby denied the movant a fair resolution of his § 2255 motion merely by making a factually true statement regarding the Government's Response. The Court also rejects the movant's allegation that the Magistrate Judge's failure to rule on the movant's evidentiary hearing motion is evidence of prejudice. The Report and Recommendation was issued just seven business days after the movant's motion was filed, and it was issued prior to the deadline established by LRCiv 7.2 for the movant to file his reply in support of his motion. There was nothing improper in the Magistrate Judge noting in the Report and Recommendation the existence of the motion and impliedly leaving its resolution to the undersigned Judge.
The Court agrees with the Magistrate Judge's conclusion that the movant procedurally defaulted on any claim raised as part of his first, second, third or fourth grounds that he did not raise in his direct appeal. Because collateral review pursuant to § 2255 is "an extraordinary remedy and will not be allowed to do service for an appeal, " Bousley v. United States, 523 U.S. 614, 621 (1998), absent a showing of cause and prejudice or actual innocence, a § 2255 movant procedurally defaults on all claims not raised in his direct appeal, other than claims asserting that the movant was deprived of the right to the effective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504 & 509 (2003). The movant concedes in his motion that the claims raised in his grounds one through four were not raised in his direct appeal. The only cause the movant asserts for his procedural defaults is the ineffective assistance of his trial and appellate counsel, and the Court agrees with the Magistrate Judge that the movant has not established any ineffective assistance by his counsel.
In order to prevail on an ineffective assistance of counsel claim against either his trial or appellate counsel, the movant must show both that his counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In order to establish the first prong of the Strickland test, the movant must show, as to each individual claim of ineffectiveness, that his counsel's performance was unreasonable, i.e., that it was not "within the range of competence demanded of attorneys in criminal cases." Id., at 687. In determining whether this prong was been met, the Court's scrutiny of counsel's performance must be "highly deferential, " id., at 689, since there is a "strong presumption" that counsel's conduct and strategy fell "within the wide range of reasonable professional assistance." Id. In order to establish the "reasonable probability" element of the prejudice prong, the movant must establish that counsel's errors resulted in "a probability sufficient to undermine confidence in the outcome" of the proceeding, id., at 687, and that probability cannot be based merely on conjecture or speculation.
The movant argues that both his trial and appellate counsel were ineffective for numerous reasons. First, he argues that they were ineffective due to their failure to object to at trial or to raise on appeal his claims related to double jeopardy and/or the duplicity of the indictment. Counsel were not ineffective for failing to raise these arguments because, as a matter of law, the indictment was not duplicious, and there was no double jeopardy and the movant was properly convicted of Count 2 notwithstanding his acquittal on Count 1 given the difference in elements between the two counts.
Second, the movant also argues that both his trial and appellate counsel were ineffective regarding the movant's claims related to the DNA evidence. The gist of these claims are (1) that the Government failed to timely provide the DNA evidence to the movant, and (2) that the DNA evidence was incomplete because the DNA testing of the blood stains on the movant's pants showed DNA from more than one source but the Government only tested them for the victim's blood, whereas, according to the movant, a further DNA test would have shown that the movant's own blood was also on his pants which would have been corroborating evidence supporting his self-defense claim.
There was no ineffectiveness of counsel related to the DNA evidence because the movant was not prejudiced by the lack of further DNA testing or any untimeliness of the DNA disclosure inasmuch as there is no reasonable probability that the results of the trial would have been different even if DNA evidence of the movant's blood on his pants had been introduced. This is so because the movant's theory of self-defense was fatally undermined by his own trial testimony that Danny Ethelbah, the victim, prior to the time the movant stabbed him, only grabbed the movant and never threatened him with a knife or any other kind of a weapon and never hit him, that the movant never saw any weapon on the victim, and that there shouldn't have been any blood on the movant's pants or shoes except that of the victim. The trial testimony of the other witnesses corroborated the movant's testimony that the victim was not carrying a weapon and had not threatened or assaulted the movant prior to being stabbed. There was in fact overwhelming evidence that the stabbing was unprovoked.
Third, the movant, arguing that the composition of his jury prejudiced his right to a fair trial, asserts that his trial counsel was ineffective for not challenging the fact that his jury included eleven females and no Native Americans. There was no ineffectiveness regarding the jury-related arguments because the movant has not established prejudice. His contention that the trial outcome would have been different had he received a different jury is pure speculation given the overwhelming evidence presented at trial of his guilt as to the count on which he was convicted.
Fourth, the movant argues that both his trial and appellate counsel were ineffective as a result of their failing to pursue his argument that the Court's granting of the Government's two motions in limine regarding the exclusion of evidence of the victim's prior acts and drug use prevented the movant from fully establishing his self-defense claim. Neither counsel's performance fell below an objective standard of reasonableness regarding the motions in limine because trial counsel did make an argument regarding the propriety of the motions and the Court did give its reasoning on the record for its decision to grant the motions. Furthermore, the movant has not established any non-speculative prejudice as to any issue related to the rulings on the motions in limine because, notwithstanding the precluded evidence, the movant was able to present his self-defense claim to the jury through his testimony, for example, that the victim despised him and had threatened him with physical harm on several previous occasions, that the victim always carried knives on him, as well as other weapons such as nunchucks and brass knuckles, and that just before the movant stabbed him, the victim looked at him in a wild and crazy manner while he had one hand hidden from sight and then he lunged at the movant, at which time the movant thought that the victim was actually going to stab him and kill him.
Fifth, the movant argues that his trial counsel was ineffective for not invoking the movant's right to a jury instruction for the lesser included offense of striking, beating, or wounding. There was no ineffectiveness as to this issue because the movant was not entitled to such an instruction. See United States v. Watson, 235 Fed.Appx. 533, at *1 (9th Cir.2007) (In an appeal from a conviction for assault resulting in serious bodily injury in violation of 18 U.S.C. § 1153 and 113(a)(6), the court found that the trial court did not abuse its discretion in refusing to give an instruction on a lesser included offense of striking, beating or wounding in violation of § 113(a)(4) because the evidence was uncontradicted that the victim suffered serious bodily harm.); see also, United States v. Bruce, 458 F.3d 1157, 1162 n.1 (10th Cir. 2006) (Court stated that "assault by striking, beating, or wounding is not a lesser-included offense of assault resulting in serious bodily injury."); United States v. Camejo, 333 F.3d 669, 674 (6th Cir.2003) (same); United States v. Pierre, 254 F.3d 872, 875 (9th Cir.2001) (Court stated that assault by striking, beating, or wounding is not a lesser-included offense of assault with a dangerous weapon.)
Sixth, the movant argues that his trial counsel was ineffective for not objecting to various statements made by the prosecutor in her closing argument which the movant alleges amounted to misconduct. There was no ineffectiveness because there was nothing improper about the prosecutor's closing inasmuch as her arguments were properly based on the trial testimony and the reasonable inferences arising from that testimony, and because there is no reasonable probability that the outcome of ...