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Crow v. United States

United States District Court, D. Arizona

May 17, 2017

IVORY CROW, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          ROBERT J. BRYAN United States District Judge

         This case comes before the Court on the Report and Recommendation of U.S. Magistrate Judge David K. Duncan. Dkt. 15. The Court has considered the Report and Recommendation (Dkt. 15), Petitioner's Response to Magistrate Report and Recommendation and the Objection Supported by the Record (Dkt. 16), and the remaining record.

         On August 22, 2016, Petitioner filed this case under 28 U.S.C. § 2255, challenging his September 2013 conviction and 96 month sentence for 48 counts of theft of government funds in violation of 18 U.S.C. § 641 and 48 counts of mail fraud in violation of 18 U.S.C. § 1344. Dkts. 1 and 8. Petitioner claims four grounds for relief. Id.

         On May 1, 2017, a Report and Recommendation was filed, recommending that the Court deny the petition, deny Petitioner's Motion for Summary Judgment, and deny a certificate of appealability. Dkt. 15. The facts are in the Report and Recommendation (Dkt. 15, at 1-3) and are adopted here.

         Claims 1, 2, and 4.

         The Report and Recommendation notes that Petitioner's claims 1, 2, and 4 are all predicated on Petitioner's contention that he was entitled to transactional immunity. Dkt. 15. It reports notes that these claims were reviewed by the Ninth Circuit Court of Appeals, and so, recommends this Court find that it does not have jurisdiction to consider them. Id. The Report and Recommendation points out that even if these claims have not been considered by the Ninth Circuit, Petitioner has procedurally defaulted on the claims, and unless Petitioner showed cause and prejudice, which he has not, those claims should be dismissed. Id.

         In his objections, Petitioner again maintains that he was entitled to transactional immunity. Dkt. 16. He fails to address the issue of the Ninth Circuit having already ruled against him on these claims. The Report and Recommendation should be adopted and claims 1, 2, and 4 dismissed because this Court does not have jurisdiction to consider them.

         Further, as provided in the Report and Recommendation, to the extent these claims were not raised be for the Ninth Circuit Court of Appeals, the time to do so has lapsed, and Petitioner has not made the required showing that his procedural default should be excused.

         With certain exceptions, for example, ineffective assistance of counsel claims, a petitioner may not raise a claim in a Section 2255 motion that he or she failed to raise on direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994). If a criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both: (1) cause excusing his procedural default, and (2) actual prejudice resulting from the claim of error. United States v. Frady, 456 U.S. 152, 168 (1982).

         Petitioner has failed to make any showing regarding “cause excusing his procedural default.” Moreover, while Petitioner asserts that he suffered prejudice because he is serving a longer sentence, he has failed to demonstrate that the errors he identifies actually caused the length of his sentence. Even if claims 1, 2, and 4 were not addressed by the Ninth Circuit, Petitioner is procedurally defaulted from raising them and has failed to show that his default should be excused. These claims should be dismissed.

         Claim 3.

         The Report and Recommendation recommends that as to Petitioner's third claim, ineffective assistance of counsel, also be dismissed. Dkt. 15. Petitioner argues that his trial counsel was deficient when she informed the Court that a 57 month sentence, which he began in March of 2010, was set to end later than a Bureau of Prisons letter in the file that indicated his sentence would end on November 30, 2011. Dkt. 8 and 16. In his objections, Petitioner repeatedly states that his counsel “blasphemed the court” and lied. Dkt. 16.

         A claim of ineffective assistance of counsel requires a petitioner to demonstrate: (1) that the defense attorney's representation fell below an objective standard of reasonableness and (2) that the attorney's deficient performance prejudiced the defendant such that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Doe v. Woodford, 508 F.3d 563, 568 (9th Cir. 2007); Strickland v. Washington, 466 U.S. 668, 694 (1984). The Court need only consider one of the Strickland prongs if it is dispositive. Strickland, at 687.

         The Report and Recommendation's recommendation regarding claim three should be adopted and Petitioner's claim for ineffective assistance of counsel should be dismissed. Petitioner has not shown that his counsel's “representation fell below an objective standard of reasonableness.” Doe, at 568. Petitioner has failed to show that his trial counsel was incorrect in her statements to the Court. As provided in the Report and Recommendation, the most likely explanation is that the Bureau of Prisons letter contained a typographical error. His 57 month sentence began in March 2010, that it ended in November 2011 (as Petitioner asserts the letter ...


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