United States District Court, W.D. Washington, Seattle
ORDER DENYING 28 U.S.C. § 2255 MOTION AND DISMISSING CASE WITH PREJUDICE
JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on Petitioner Glen Thomas Stewart's motion under U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dkt. No. 1), his accompanying motion for discovery (Dkt. No. 1), his motion for a video deposition of a material witness in a foreign country (Dkt. No. 22), and his motion for an evidentiary hearing. (Dkt. No. 23.) Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motions for the reasons explained herein.
Mr. Stewart was convicted by jury verdict for one Count of conspiracy to distribute a controlled substance and attempted possession of cocaine with attempt to distribute on July 25, 2012. He was sentenced to a term of imprisonment of 144 months and five years of supervised release. (CR11-0120 Dkt. No. 1000 at 12.) The factual basis for the conviction involved Mr. Stewart's actions in driving and unloading a car containing "sham" cocaine (fake cocaine used by law enforcement as part of an undercover cocaine investigation) that was linked to a drug trafficking organization lead by Jacob Stuart and others. (CR11-0120 Dkt. No. 890.)
Mr. Stewart has steadfastly maintained that he was unaware of the contents of the boxes that he transported and unloaded. He asserts that he was "only an innocent businessman who was duped into holding property" for members of the drug conspiracy. (Dkt. No. 15 at 7.) Mr. Stewart argues that he received ineffective assistance of counsel because his lawyer failed to interview witnesses, potential witnesses, and/or alleged co-conspirators, and also failed to move the Court for a Mitigating Role downward departure at sentencing. Mr. Stewart's § 2255 petition is accompanied by a motion for discovery. (Dkt. No. 1 at 12.) He has also submitted motions for a video deposition of his brother, Edward ("Ted") James Stewart, who is receiving treatment for cancer in Canada, and for an evidentiary hearing. (Dkt. Nos. 22 and 23.) Petitioner claims that his brother can offer evidence of actual innocence and further claims that an evidentiary hearing is necessary to determine whether the government impermissibly threatened witnesses to prevent them from testifying.
A. Ineffective Assistance of Counsel
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution... may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). Furthermore, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon...." Id. § 2255(b). On the other hand "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed on an ineffective assistance claim, Petitioner must show that counsel's performance was (1) deficient and (2) prejudicial to the defense. Id. at 687. To meet the first requirement of "objectively unreasonable performance, " a convicted defendant must point to specific acts or omissions by counsel that he believes not to be the product of sound professional judgment. Id. at 690. Counsel's performance must fall below an objective standard of reasonableness such that "in light of all the circumstances, the identified acts or omission were outside the wide range of professionally competent assistance." Id. at 687, 690. To satisfy the second requirement, prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "Judicial scrutiny of counsel's performance must be highly deferential" and courts must indulge a "strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994).
In cases where an ineffective assistance of counsel claim is based on a failure to investigate, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 690-91. The petitioner must overcome the "strong presumption that... under the circumstances, the challenged action might be considered sound trial strategy.'" Id. at 689. "Not must, ' not would, ' but might.'" Carrera v. Ayers, 670 F.3d 938, 951 (9th Cir. 2011) (quoting Strickland, 466 U.S. at 690-91).
1. Failure to Interview Witnesses
Mr. Stewart first claims ineffective assistance of counsel based on his original lawyer's failure to interview a series of witnesses who, he believes, could have provided evidence that would have either demonstrated Mr. Stewart's factual innocence or raised sufficient doubt about the prosecution's case so as to have swayed the jury's decision and altered the outcome of the trial. Specifically, he argues that his lawyer should have interviewed Shawn Alexander (Stewart's company's lawyer), Rob Jensen (his cellmate at the Seattle Detention Center), Ted Stewart (his brother), and "Sonny" (a debt collector for the Hell's Angels whose last name is unknown). There is some dispute as to whether Mr. Stewart's lawyer did interview any of these people, and Mr. Stewart requests an evidentiary hearing in order to question his defense counsel to resolve this dispute. The difficulty with Mr. Stewart's claim is that he has not provided sufficient basis to indicate that any of the potential witnesses he mentions would have offered testimony that could have changed the outcome of the case. He has not established that the failure to interview these witnesses, if there was in fact such a failure, was objectively unreasonable or prejudicial.
Mr. Stewart argues that Shawn Alexander should have been interviewed because he could have offered testimony that Mr. Stewart was "duped into helping the [drug trafficking] organization by thinking it was only a normal business transaction." (Dkt. No. 15 at 5.) While Mr. Stewart indicates that Mr. Alexander had intimate knowledge of Mr. Stewart's finances, and was a close friend, (Dkt. No. 21 at 5) he fails to provide or allege any facts that would indicate how, exactly, Mr. Alexander would have known that Mr. Stewart was duped into aiding the conspiracy. Mr. Stewart moved this Court for time to obtain "sworn affidavits from certain of the witnesses, supporting his factual allegations" (Dkt. No. 15 at 10) but, despite multiple extensions of time, has not provided an affidavit from Mr. Alexander that could substantiate the claim that he would be able to offer testimony establishing Mr. ...