United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
TO THE
HONORABLE NEIL V. WAKE, SENIOR U.S. DISTRICT JUDGE:
Steven
Brewer (“Movant”) is an inmate detained at the
Seagoville, Texas Federal Correctional Institution. On March
19, 2019, [1] he filed a pro se Motion to Vacate, Set
Aside, or Correct Sentence Under 28 U.S.C. § 2255
(“§ 2255 Motion”) asserting nine claims for
relief. (Doc. 1)[2] Pending before the Court is
Respondent's Motion to Dismiss Defendant's Motion
Under 28 U.S.C. § 2255 filed on June 28, 2019. (Doc. 6)
Movant filed a response and attachments. (Docs. 10, 14)
Respondent filed a reply. (Doc. 16) Movant then filed a
surreply to the Respondent's reply. (Doc. 17) For the
reasons set forth below, undersigned recommends that the
Court grant Respondent's motion to dismiss Movant's
§ 2255 Motion with prejudice.
I.
BACKGROUND
A.
Movant's convictions and sentence
After a
trial by jury, Movant was found guilty of one count of
conspiracy to commit wire fraud and money laundering, six
counts of wire fraud, and twenty-one counts of money
laundering, in violation of 18 §§ U.S.C. 371, 1343,
and 1957(a), respectively. (CR Doc. 813 at 1, 4) On March 30,
2015, the Court sentenced Movant to a 188-month term of
imprisonment followed by three years of supervised release.
(Id.)
B.
Movant's direct appeal
Movant
and his co-defendants appealed their convictions, arguing
District Judge Wake: (1) erred when he denied the
defendants' motions for acquittal; (2) abused his
discretion when conducting voir dire; (3) abused his
discretion by allowing the prosecution to impeach Movant with
his prior conviction; (4) abused his discretion by admitting
summary charts detailing the disposition of the victim's
money; (5) erred when questioning witnesses, including
Movant; (6) erred when instructing the jury on
Pinkerton liability using Ninth Circuit Model
Criminal Jury Instruction 8.25; (7) erred in giving a money
laundering jury instruction; and (8) abused his discretion in
denying Movant's co-defendant's motion to sever.
United States v. Kirby, 692 Fed.Appx. 334, 336-38
(9th Cir. 2017). The Ninth Circuit affirmed.
Id.
Movant
filed a petition for writ of certiorari which the United
States Supreme Court denied on January 8, 2018. Brewer v.
United States, 138 S.Ct. 688 (Jan. 8, 2018). Movant then
filed a petition for rehearing with the Supreme Court, which
the Court denied on March 26, 2018. Brewer v. United
States, 138 S.Ct. 1346 (Mar. 26, 2018). . . .
C.
Procedural history of the § 2255 Motion
On
initial screening of the § 2255 Motion, District Judge
Wake ordered dismissal of Grounds One, Four, and Nine and
ordered Respondent to answer the remaining six grounds, which
asserted claims of ineffective assistance of trial and/or
appellate counsel. (Doc. 3, Doc. 1 at 25-26) Respondent then
filed a motion for an order requiring Movant to execute a
limited waiver of the attorney-client privilege as to his
claims of ineffective assistance of counsel. (Doc. 4) On June
11, 2019, undersigned entered an order requiring Movant to
either sign and file a limited waiver attached as an exhibit
to the order, or to file a notice of withdrawal of his claims
within 14 days of the date of the order. (Doc. 5) Respondent
filed the pending motion to dismiss the § 2255 Motion on
June 28, 2019. (Doc. 6)
On July
2, 2019, undersigned filed an order requiring Movant to show
cause no later than July 31, 2019, why the Court should not
dismiss his remaining grounds of the § 2255 Motion for
failure to file a signed copy of the waiver provided him with
the June 11, 2019 order. (Doc. 7) In a July 11, 2019, order
granting Movant's motion for extension of time to respond
to Respondent's motion to dismiss, undersigned allowed
Movant until July 31, 2019, to file his response and ordered
the Clerk of the Court to provide him with a copy of the June
11, 2019, order and also provide him with another copy of the
limited waiver. (Doc. 9) Movant filed his response to the
Court's order to show cause on July 22, 2019, and he
attached a signed copy of the limited waiver. (Doc. 11 at
25-26)
Movant
filed a response to the motion to dismiss, with additional
attachments.[3](Docs. 10, 14) In August 2019, Respondent
filed its reply in support of its motion to dismiss. (Doc.
16) On August 22, 2019, Movant filed his “Reply to
Government's August 7, 2019 Response to His Motion for
Equitable Tolling.” (Doc. 17) This document is deemed a
surreply to Respondent's reply on its motion to
dismiss.[4] Neither Movant's response to the
motion to dismiss (Docs. 10, 14) nor the surreply (Doc. 17)
is sworn, and neither is supported by any affidavit.
In
addition to arguing for equitable tolling, Movant's
surreply advances an irrelevant and erroneous interpretation
of Rule 5 of the Rules Governing Section 2255 Proceedings
and, on such basis, requests the Court to strike
Respondent's reply to its motion to dismiss (Doc. 16).
(Doc. 17 at 2-4) The Court declines to strike
Respondent's reply.
II.
MOVANT'S HABEAS GROUNDS
The
remaining six grounds of the § 2255 Motion assert claims
of ineffective assistance of counsel (“IAC”). In
Ground Two, Movant argues his counsel was ineffective for
“improperly advising [him] to testify.” (Doc. 1
at 5) Movant contends in Ground Three that counsel failed to
“object to the testimony of the government's expert
witness.” (Id. at 7) In Ground Five, Movant
complains that trial and appellate counsel were ineffective
by “failing to properly challenge [his] applicable
guidelines calculation during sentencing and on
appeal.” (Id. at 8) Movant's Ground Six
argument is that counsel was ineffective for failing to
“challenge the Court's improper calculation of
[his] applicable guidelines range.” (Id.) In
Ground Seven, Movant argues that counsel was ineffective for
not challenging the Court's incorrect calculation of
[his] applicable guidelines range based on 10 or more
victims.” (Id.) Movant's Ground Eight
claim is that counsel was ineffective for not properly
challenging “the Court's incorrect calculation of
[his] applicable guideline range based on the use of
sophisticated means.” (Id. at 11) . . . . . .
III.
DISCUSSION
Respondent
urges that the § 2255 Motion is untimely because Movant
filed it after the expiration of the applicable one-year
statute of limitations. (Doc. 6 at 3-5) Whether the §
2255 Motion is time-barred by the statute of limitations is a
threshold issue for the Court. The time-bar issue must be
resolved before considering other procedural issues or the
merits of any habeas claim. See White v. Klitzkie,
281 F.3d 920, 921-22 (9th Cir. 2002). The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs Movant's § 2255 Motion
because it was filed after April 24, 1996, the effective date
of the AEDPA. Patterson v. Stewart, 251 F.3d 1243,
1245 (9th Cir. 2001) (citing Smith v.
Robbins, 528 U.S. 259, 267 n.3 (2000)).
A.
Statute of limitations
The
AEDPA establishes a one-year limitations period for federal
prisoners to file a motion collaterally attacking their
convictions. The limitations period runs from the latest of,
as is pertinent here, “the date on which the judgment
of conviction becomes final[.]” 28 U.S.C. §
2255(f)(1). Although § 2255 does not define the term
“final, ” the Supreme Court has applied its
ordinary standard of finality. “Finality attaches when
[the Supreme] Court affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari,
or when the time for filing a certiorari petition
expires.” Clay v. United States, 537 U.S. 522,
527 (2003). See also Jimenez v. Quarterman, 555 U.S.
113, 119 (2009) (“With respect to postconviction relief
for federal prisoners, this Court has held that the
conclusion of direct review occurs when ‘this Court
affirms a conviction on the merits on direct review or denies
a petition for a writ of certiorari.'” (citing
Clay, 537 U.S. at 527, 528-532)).
Movant
was sentenced on March 30, 2015. (CR Doc. 813 at 1, 4) His
appeal was denied by the Ninth Circuit on May 15, 2017.
Kirby, 692 Fed.Appx. at 334. As noted, Movant filed
a petition for writ of certiorari which the United States
Supreme Court denied on January 8, 2018. Brewer, 138
S.Ct. 688. Movant then filed a petition for ...