United States District Court, D. Arizona
ORDER ADOPTING REPORT AND RECOMMENDATION
J. BRYAN United States District Judge
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.
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.
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.
1, 2, and 4.
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
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.
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.
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).
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.
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.
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.
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 ...