United States District Court, E.D. Washington
ORDER DENYING § 2255 MOTION
O. RICE Chief United States District Judge
THE COURT are Petitioner's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 236)
and Motion To Compel Government to Provide Copy of Affidavit
(ECF No. 244). The motions were submitted for consideration
without oral argument. The Court-having reviewed the motions,
the record, and files therein-is fully informed.
convicted Petitioner of knowingly distributing over 50 grams
of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(viii). Petitioner was sentenced and he
appealed his conviction. The Ninth Circuit issued a
memorandum disposition affirming Petitioner's conviction.
See ECF No. 248. The Ninth Circuit declined to consider
Petitioner's ineffective assistance of counsel argument
on direct review, id. at 4, explaining that neither
extraordinary exception to the general rule applied, leaving
the issue for collateral review. A petition for rehearing or
rehearing en banc is pending, but it is not likely
to affect the necessity of reaching the issues raised in the
issues raised do not require an evidentiary hearing.
See Rule 8, Rules- Section 2255 Proceedings. The
transcripts and records and materials filed in this
proceeding adequately document the issues for resolution.
Ineffective Assistance of Counsel
Sixth Amendment to the Constitution provides that criminal
defendants “shall enjoy the right to have the
assistance of counsel for his defense.” U.S. Const.
amend. VI. Effective assistance of counsel is analyzed
pursuant to the doctrine set forth in Strickland v.
Washington, 466 U.S. 668 (1984). According to
Strickland, Petitioner bears the burden of
establishing two components to an ineffectiveness inquiry.
First, the representation must fall “below an objective
standard of reasonableness.” 466 U.S. at 687-88. Courts
scrutinizing the reasonableness of an attorney's conduct
must examine counsel's “overall performance,
” both before and at trial, and must be highly
deferential to the attorney's judgments. United
States v. Quintero-Barraza, 78 F.3d 1344, 1347-48 (9th
Cir. 1995) (quoting Strickland, 466 U.S. at 688-89).
In fact, there exists a “strong presumption that
counsel ‘rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment.'” Id. (citation
petitioner satisfies the first prong, he must then establish
that there is “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Quintero-Barraza,
78 F.3d at 1347 (quoting Strickland, 466 U.S. at
identifies four instances where he contends counsel was
ineffective in violation of his Sixth Amendment right. Each
will be addressed in the order raised.
Whether counsel was ineffective for not moving to dismiss
the Indictment for allegedly perjurious
testimony before the grand jury.
contends DEA Special Agent Savage testified falsely before
the grand jury in order to establish probable cause for the
Indictment. Petitioner contends that Officer Savage's
testimony that Petitioner “alluded to the fact that he
had traveled [to Spokane] for the sale of
methamphetamine” was a false statement. Petitioner
denies making any admissions and observes that Agent Savage
was not present when Deputy Hause interrogated Petitioner.
Specifically, Petitioner “contends that at no time he
answered questions to Detective Hause on July 25, 2013, about
drugs.” ECF No. 236 at page 8b; see also ECF
No. 247-2 at 2.
Savage did not testify that he questioned or witnessed the
interrogation of Petitioner. Agent Savage testified at the
grand jury proceeding as a summary witness, he explained his
answers by using the collective pronoun “we”
while referencing law enforcement without identifying
specifically who asked Petitioner the questions or who heard
the answers. Despite Petitioner's complaint that hearsay
was offered, hearsay statements are admissible at the grand
jury stage of the proceeding. Fed.R.Evid. 1101(d)(2). In his
traverse brief, Petitioner also complains that his Sixth
Amendment confrontation right were violated, ECF No. 247 at
3, but the confrontation clause of the Sixth Amendment only
applies to the speedy and public trial right, not to the
Fifth Amendment's grand jury requirement. Petitioner has
not shown any aspect of Agent Savage's testimony to be
the failure of counsel to seek dismissal of the Indictment
was not objectively unreasonable nor did it prejudice
Whether counsel was ineffective for failing to move to
dismiss for a fatal variance between ...