Fabricant v. United States, CV 14-8124-RSWL

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtHONORABLE RONALD S.W. LEW Senior U.S. District Judge
Decision Date08 October 2015
PartiesDANNY FABRICANT, Petitioner/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff.
Docket NumberCV 14-8124-RSWL,CR 03-01257-RSWL-1

DANNY FABRICANT, Petitioner/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.

CV 14-8124-RSWL
CR 03-01257-RSWL-1


October 8, 2015

ORDER re: Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 [CV 1]

Currently before the Court is Petitioner Danny Fabricant's ("Petitioner") Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [CV 1] ("§ 2255 Motion"). The Government opposes the § 2255 Motion [CV 26].

The Court, having considered all papers submitted pertaining to the § 2255 Motion, NOW FINDS AND RULES AS FOLLOWS: Petitioner's § 2255 Motion [CV 1] is DENIED and the Court DENIES a Certificate of Appealability.

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On March 26, 2004, Petitioner and co-defendant Rachel Meyer ("Meyer") were charged with conspiracy and drug trafficking offenses in violation of 21 U.S.C. §§ 841 and 846 [CR 105].1

On July 28, 2004 a jury convicted Petitioner on all Counts [CR 204]. This Court sentenced Petitioner to life imprisonment [CR 299]. On appeal, the Ninth Circuit reversed Petitioner's convictions and remanded for a new trial [CR 525].

Retrial commenced on September 23, 2008 [CR 674]. The Government called among its witnesses Michael Kramer ("Kramer"), an informant acting on behalf of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and ATF Special Agent John Ciccone.

On September 26, 2008, a jury again convicted Petitioner on all counts [CR 682]. Petitioner was again sentenced to life imprisonment [CR 848, 849]. Petitioner appealed his conviction and sentence [CR 850]. The Ninth Circuit affirmed Petitioner's

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conviction and sentence, and the Supreme Court denied certiorari. United States v. Fabricant, 506 F. App'x 636, 642 (9th Cir. 2013), cert. denied 134 S. Ct. 450 (Mem.) (2013).

Several months after sentencing, Petitioner filed an Ex Parte Application for Order Requiring DNA Testing Per 18 U.S.C. § 3600 [CR 979] ("Ex Parte Application for DNA Testing"), in which Petitioner argued that "[i]f the DNA testing confirms that the defendant's DNA is not present on the baggies and packaging materials, it would prove that the defendant was factually innocent of selling Meth to Kramer, and was, in fact, framed by Kramer." Ex Parte Appl. for DNA Testing 11-12. This Court rejected the filing because the case was closed [CR 955]. Petitioner appealed, and the Ninth Circuit reversed and remanded with instructions to consider Petitioner's application on the merits. United States v. Fabricant, 581 F. App'x 663 (9th Cir. 2014). After further briefing by the parties [CR 986 (Opposition); CR 995 (Reply)], this Court denied Petitioner's application on the merits [CR 997], holding that Petitioner failed to meet the statutory requirements for obtaining relief. Petitioner filed a notice of appeal [CR 1002] on September 18, 2014. The matter is currently pending appeal. United States v. Fabricant, No. 13-50526.

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On October 21, 2014, Petitioner timely2 filed his § 2255 Motion [CV 1]. In support of his § 2255 Motion, Petitioner filed a Memorandum of Points and Authorities Part I (Grounds) [CV 3] ("Memorandum Part I"), a Memorandum of Points and Authorities Part II (Statement of Facts) [CV 4] ("Memorandum Part II"), Exhibits Part I [CV 2] and Exhibits Part II [CV 44]. On March 24, 2015 the Government filed its Opposition to Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [CV 26] ("Opposition"). On August 31, 2015 Petitioner filed his Reply to Government's Opposition to Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [CV 45] ("Reply").

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A. Legal Standard

1. 28 U.S.C. § 2255

28 U.S.C. § 2255 provides that a federal prisoner may make a motion to vacate, set aside or correct his sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

The range of claims which may be raised in a § 2255 motion is narrow. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). In order for a claim to be cognizable under § 2255, a motion must allege: (1) a constitutional error; (2) that the district court lacked jurisdiction to impose the sentence; (3) that the sentence was imposed in excess of the statutory maximum; or (4) that the sentence is otherwise subject to collateral attack. Id.

The remedy under § 2255 does not encompass all claimed errors in conviction and sentencing. United States v. Addonizio, 442 U.S. 178, 185 (1979); Wilcox, 640 F.2d at 973 ("Errors of law which might require reversal of a conviction or sentence on appeal do not necessarily provide a basis for relief under § 2255."). A mere error of law does not provide a basis for

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collateral relief under § 2255 unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice" and renders the entire proceeding "irregular and invalid." Addonizio, 442 U.S. at 185-86.

Further, "the Court has cautioned that § 2255 may not be used as a chance at a second appeal." United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010); United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) ("Section 2255 . . . is not designed to provide criminal defendants multiple opportunities to challenge their sentence."). A matter that has been decided adversely on appeal from a conviction cannot be relitigated on a § 2255 motion absent changed circumstances of law or fact. Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972); Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995).

Similarly, "[h]abeas relief is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354 (1994)) (internal quotation marks omitted). Where a defendant has procedurally defaulted a claim by failing to raise it on direct appeal, the claim may be raised in a § 2255 motion only if the defendant can first demonstrate both "cause" excusing his procedural default and "actual prejudice" resulting from the claim of error, or that he is "actually innocent." Bousley,

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523 U.S. at 622. The existence of "cause" for a procedural default turns on whether the petitioner can show that some objective factor external to the defense impeded defense counsel's efforts to comply with the procedural rules or made compliance impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "actual prejudice," the petitioner must show that the alleged errors at trial created more than a mere possibility of prejudice, but that the errors worked to his "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). To establish "actual innocence," Petitioner must demonstrate that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)) (internal quotation marks omitted).

B. Discussion

Petitioner raises five grounds in his § 2255 Motion. Each ground is discussed below.

1. Petitioner's Due Process Claims

In ground one, Petitioner argues that he was "denied due process by the collective actions of the government, this court, and appointed counsel." Pet'r's Mem. Part I 1-1. Specifically, Petitioner lists twenty-four "examples" of alleged due process violations, which he claims are illustrative of his

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broader argument found in the 134-page Memorandum Part II. Id. at 1-1 to 1-20.

After having reviewed Petitioner's arguments in Memorandum Parts I and II, Petitioner's "due process" claims can be divided into eight broad categories: (1) the Court denied Petitioner's various motions and ex parte applications, and overruled Petitioner's various objections to the Government's motions and at trial;3 (2) the Prosecutor "lied" to the Court on at least two occasions;4 (3) the Government deliberately delayed the proceedings to the prejudice of Petitioner;5 (4) the Court's hearing to determine whether to allow the Government to use Petitioner's prior convictions for sentencing purposes was constitutionally inadequate;6 (5) co-counsel failed to object to the introduction of certain evidence at trial;7 (6) co-counsel "usurped" the defense;8 (7) the Court erred in its jury instructions;9 and (8) the Court and Prosecutor improperly questioned Meyer at retrial.10 Each of these categories is discussed in turn.

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a. The Court's denial of Petitioner's various motions and ex parte applications did not constitute a violation of due process.

Petitioner raises several arguments that the Court wrongfully denied his various motions, requests and ex parte applications, including, inter alia: a motion related to visitation at the MDC-LA by any attorney or investigator, a motion to exclude material under the...

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