United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO VACATE PURSUANT TO 28 U.S.C.
B. Leighton United States District Judge.
MATTER is before the Court on Petitioner Steven
McCracken's motion to vacate his conviction pursuant to
28 U.S.C. § 2255 [Dkt. 1]. In 2012, a jury convicted
McCracken of two counts related to his participation in a
conspiracy to distribute large quantities of
methamphetamine. The Court sentenced McCracken to 168
months imprisonment and the Ninth Circuit affirmed. In
McCracken's 147-page petition for habeas relief, he
asserts forty-fivegrounds for vacating his convictions.
Nearly half of the grounds revolve around McCracken's
ineffective assistance of counsel claims, while others have
already been rejected by the Ninth Circuit on direct appeal.
The Government argues that McCracken's grounds are either
recycled from his direct appeal, have been waived, or are
has an extensive history of drug possession, manufacturing,
and distribution convictions dating back to 1998.
McCracken's current incarceration stems from his
involvement in a methamphetamine distribution conspiracy. The
facts at trial established that a confidential informant
implicated McCracken in several large methamphetamine
transactions. Law enforcement surveilled McCracken leaving
one such drug transaction. McCracken led officers on a
high-speed chase after they attempted to pull him over.
McCracken was taken into custody after abandoning his vehicle
and throwing a bag containing three pounds of methamphetamine
off of a bridge into the Cowlitz River below. Law enforcement
discovered methamphetamine, drug distribution paraphernalia,
and nearly $19, 000 in cash in McCracken's vehicle. At
trial, McCracken argued that he was under duress when he
participated in the drug conspiracy. The jury convicted
McCracken of conspiracy to distribute methamphetamine (Count
1) and possession with intent to distribute methamphetamine
(Count 3). The Court sentenced McCracken to 168 months
imprisonment and five years of supervised release. The Court
denied McCracken's Rule 29 motion for a judgment of
acquittal, and his convictions were affirmed by the Ninth
Circuit. McCracken, 3:11-cr-5295-RBL, Dkt. 147; Dkt.
190. McCracken subsequently filed a Rule 33 motion for a new
trial, the denial of which was again affirmed by the Ninth
Circuit. Id. at Dkt. 216; Dkt. 233.
have an obligation to construe a pro se
petitioner's pleadings liberally. See Balistreri v.
Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1990);
Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985). A § 2255 petition for habeas relief is the proper
avenue for a prisoner in federal custody to petition the
court that sentenced him to vacate, set aside, or correct his
sentence if it imposed his sentence “in violation of
the Constitution or laws of the United States” or
lacked “jurisdiction to impose such sentence, ”
or if his sentence exceeded “the maximum authorized by
law” or “is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). To obtain relief,
the movant must prove, by a preponderance of the evidence,
the existence of an error rendering his conviction unlawful.
See Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir.
1997). The petitioner bears the burden of establishing any
factual predicates necessary to establish his claims. See
Grady v. United States, 929 F.2d 468, 471 (9th Cir.
disposed of on a previous direct appeal are not reviewable in
a subsequent § 2255 proceeding.” United States
v. Currie, 589 F.2d 993, 995 (9th Cir. 1979); see
also Odom v. United States, 455 F.2d 159, 160 (9th Cir.
1972) (“The law in this circuit is clear that when a
matter has been decided adversely on appeal from a
conviction, it cannot be litigated again on a 2255
motion.”); United States v. Scrivener, 189
F.3d 825, 828 (9th Cir. 1999) (noting issues decided on
direct appeal are binding on a court considering habeas
relief). As a general rule, “claims not raised on
direct appeal may not be raised on collateral review unless
the petitioner shows cause and prejudice.” Massaro
v. United States, 538 U.S. 500, 504 (2003). The U.S.
Supreme Court held that an ineffective assistance of counsel
claim is an exception to the general rule and may be brought
in the first instance in a timely § 2255 motion,
regardless of whether the petitioner could have raised the
claim on direct appeal. Id.
McCracken's forty-five grounds for vacating his
conviction are repetitive and even McCracken concedes that
some grounds are the same. See Dkt. 27 at 34
(“Grounds 40 and 41 can be thought of as one
ground.”). Construing his voluminous pro se
filings liberally, the Court addresses the common issues from
McCracken's petition rather than each overlapping claim
individually. Because McCracken has failed to prove by a
preponderance of the evidence the existence of an error
rendering his conviction unlawful, his § 2255 petition
Ineffective Assistance of Counsel
twenty-two of McCracken's forty-five claims are for
ineffective assistance of counsel at various stages of his
trial and appeal. McCracken's failure to raise his
numerous ineffective assistance of counsel claims on direct
appeal does not preclude him from bringing them in this
§ 2255 petition. Massaro, 538 U.S. at 509. To
prevail on his ineffective assistance of counsel claims,
McCracken must show both that (1) his counsel's
representation fell below an objective standard of
reasonableness and (2) the deficiency in counsel's
performance was prejudicial to his defense. Strickland v.
Washington, 466 U.S. 668, 688 (1984). “Judicial
scrutiny of counsel's performance must be highly
deferential” and there is a “strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689. McCracken cannot satisfy either prong of
Counsel's performance did not fall below an objective
standard of reasonableness.
trial, McCracken's lawyer focused on a duress defense,
arguing that McCracken's fear of a fellow drug associate
motivated his involvement in the drug conspiracy. This
strategy was reasonable considering the amount of evidence
implicating McCracken in the conspiracy. The jury was
unpersuaded by this defense. With the benefit of hindsight,
McCracken now claims that his attorney should have pursued a
host of different pre-trial, trial, and post-trial tactics
and defense theories of the case. But “[a] fair
assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight . .
. and to evaluate the conduct from counsel's perspective
at the time.” Id. A reasonable attorney is not
required to make every potentially meritorious motion.
Carrera v. Ayers, 670 F.3d 938, 944 (9th Cir. 2011).
McCracken's post-conviction critique of the strategic
decision not to pursue untenable defenses does not
demonstrate that his counsel's representation fell below
the objective standard of reasonableness. As this Court
observed firsthand during trial, and as the Ninth Circuit
noted on direct appeal, “McCracken's counsel was
still able to put on a vigorous defense at trial.”
McCracken, 3:11-cr-5295-RBL, Dkt. 190 at 3.
McCracken was not prejudiced by counsel's allegedly