Korn v. United States

• Decision Date: 20 March 2013
• Docket Number: Nos. CV 12–05243–VBF, CR 08–00385–VBF.,s. CV 12–05243–VBF, CR 08–00385–VBF.
• Court: U.S. District Court — Central District of California
• Parties: Douglas Martin KORN v. UNITED STATES of America.

937 F.Supp.2d 1182

Douglas Martin KORN

v.UNITED STATES of America.

Nos. CV 12–05243–VBF, CR 08–00385–VBF.

United States District Court, C.D. California.

March 20, 2013.

Douglas Martin Korn, San Pedro, CA, pro se.

Xochitl D. Arteaga, Assistant 2241-2255 US Attorney LA-CR, Dorothy Kim, AUSA-Office of U.S. Attorney, Los Angeles, CA, for United States of America.

PROCEEDINGS (IN CHAMBERS): ORDER DENYING 28 U.S.C. SECTION 2255 PETITION FOR A WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Honorable VALERIE BAKER FAIRBANK, District Judge.

Linda Kanter, Courtroom Deputy.

Proceeding pro se, federal prisoner Douglas Martin Korn (“petitioner”) filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, the federal government (“respondent”) filed an answer, and petitioner filed a reply, in each case supported by a memorandum of points and authorities, see Documents 1, 5, and 12. For the reasons that follow, the Court will deny the habeas petition for lack of merit.

BACKGROUND AND PROCEDURAL HISTORY

In December 2008, Douglas Martin Korn pled guilty to one count each of conspiracy to distribute methamphetamine and distribution of 431.8 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). At the recommendation of the U.S. Probation Office, and without objection from the prosecution or the defense, the Court reckoned that petitioner had twelve criminal history points. That placed him in Criminal History Category V. With that high criminal history category, petitioner's offense level yielded a Guideline-recommended range of 168 to 210 months (14 to 17.5 years) of imprisonment.

In December 2009 this Court entered the judgment sentencing petitioner to 135 months (11 years and three months) in prison, which was below the bottom end of the seemingly applicable Guideline range. See Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody [pursuant to] 28 U.S.C. § 2255 (“Pet.”) at 2 ¶¶ 1–7.

On direct appeal, the Ninth Circuit affirmed petitioner's conviction and sentence in an unpublished opinion in March 2011. See Pet. at 2–3 ¶¶ 8–11; see also United States v. Douglas Martin Korn, 421 Fed.Appx. 752 (9th Cir.2011). Petitioner did not file a petition for writ of certiorari with the United States Supreme Court during the ninety days allotted for doing so, see Zepeda v. United States, 2013 WL 599869 (C.D.Cal. Feb. 15, 2013) (Valerie Baker Fairbank, J.) (citing Bowles v. Russell, 551 U.S. 205, 212, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (citing S. Ct. R. 13.1 and 28 U.S.C. § 2101(c))), so his conviction became final, for AEDPA purposes, in June 2011. Nor has petitioner filed any other motions for post-conviction relief or collateral review.

In June and July 2012, respectively, petitioner filed the instant petition (“Pet.”) and a supporting memorandum of points and authorities (“Pet. Mem.”), claiming that his attorney rendered constitutionally ineffective assistance of counsel (“IAC”) at sentencing in two respects. See generally United States v. McGowan, 668 F.3d 601, 605 (9th Cir.2012) (an IAC “ ‘challenge by way of habeas proceeding is preferable because it permits the defendant to develop a record of what counsel did, why it was done, and what, if any, prejudice resulted.’ ”) (quoting United States v. Laughlin, 933 F.2d 786, 788–89 (9th Cir.1991)).¹ There is no dispute that the petition is timely under 28 U.S.C. § 2255(f)(1) because Korn filed it within one year from the date when his conviction became final upon expiration of the time to seek certiorari.

First, petitioner claims that his trial counsel rendered IAC by failing to advise the court that petitioner's two Beverly Hills drug convictions (for which the state court sentenced him concurrently) had resulted in suspended sentences—civil “narcotics commitment.” Under the United States Sentencing Guidelines (“the Guidelines”) in effect at the time of sentencing, that would have lowered his criminal history score by three points and dropped him from criminal history category V to criminal history category IV. That much is uncontested. Petitioner further opines or predicts that the ultimate result would have been a shorter prison term. Second, petitioner claims that his trial counsel rendered IAC by failing to request a full-blown evidentiary hearing to cross-examine one or more undercover agents, an apparent government informant named Alexandridis who helped to set up the methamphetamine sale which led to the instant charges against petitioner, and petitioner himself, in order to build a record of impermissible “sentencing entrapment.” See Pet. at 4–5 ¶¶ 12A and 12B; see also Pet. Mem. at 4–7.

WAIVER OF THE ATTORNEY–CLIENT PRIVILEGE IS NOT NECESSARY HERE

“ ‘It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective counsel.’ ” Lambright v. Ryan, 698 F.3d 808, 818 (9th Cir.2012) (quoting Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003) ( en banc)); accord United States v. Pinson, 584 F.3d 972, 978 (10th Cir.2009) ( “[W]hen a habeas petitioner claims [IAC], he impliedly waives attorney-client privilege with respectto communications with his attorney necessary to prove or disprove his claim.”); see, e.g., United States v. Feliciano Sanchez, No. CV 12–08016–VBF, 2013 WL 1397081, slip op. at 3–4 (C.D.Cal. Feb. 28, 2013) (Valerie Baker Fairbank, J.) (Not yet available on WestLaw) (ordering partial waiver of attorney-client privilege to permit government to have access to content of communications between habeas petitioner and his trial counsel to the extent necessary to intelligently defend against IAC claim). In this case, however, it is unnecessary to consider the proper scope of petitioner's waiver of the attorney-client privilege, nor to order discovery into formerly privileged communications between petitioner Korn and his trial counsel. It can be conclusively determined, without reference to any privileged communications, that petitioner has not shown his entitlement to federal habeas relief on this record.

LEGAL STANDARD: AEDPA REVIEW OF A SECTION 2255 HABEAS PETITION

Title 28 U.S.C. section 2255(a) provides that a prisoner who was sentenced in federal court

claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

If the federal district court which sentenced the petitioner

finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise [is] open to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255(b). In order to obtain habeas relief under section 2255 and its attendant Rules, then, a federal prisoner who was convicted after the effective date of AEDPA in 1996 must show that the sentence is the result of some violation of the United States Constitution or other federal law.

For state prisoners who seek federal habeas relief pursuant to 28 U.S.C. § 2254, AEDPA requires them to show that a state court violated “clearly established Federal law,” defined for that purpose as only the holdings (as opposed to dicta) of United States Supreme Court “as of the time of the relevant ... decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). By contrast, AEDPA does not so narrowly define relevant federal law for federal prisoners who seek federal habeas relief pursuant to 28 U.S.C. § 2255. Accord Johnson v. Sherry, 586 F.3d 439, 448, 449 (6th Cir.2009) (Kethledge, J., dissenting on other grounds) (“The First Circuit has held that the Waller definition prevails ..., although critically, it did so in considering a challenge to an underlying federal conviction, see28 U.S.C. § 2255, and thus was not limited, as we are here, to deciding whether ‘clearly established Federal law, as determined by the Supreme Court,’ requires that result.”) (citations omitted), cert. denied,––– U.S. ––––, 131 S.Ct. 87, 178 L.Ed.2d 242 (2010); Stewart v. Wolfenbarger, 468 F.3d 338, 351 (6th Cir.2006) (Batchelder, Clay, Rogers), as amended on denial of reh'g & reh'g en banc (6th Cir. Feb. 15, 2007) (“[A] federal court has more leeway in § 2255 cases than § 2254 cases, because it is not constrained to use only clearly established federal law, as determined by the holdings of Supreme Court decisions.”).

For federal prisoners whose habeas petition asserts constitutional error in the sentence or in the sentencing proceeding, the relevant federal law is the version of the law, including the United States Sentencing Guidelines and case law interpreting them, that was in effect at the time of sentencing. See, e.g., United States v. Murillo, 484 Fed.Appx. 201, 202 (9th Cir.) (stating, on appeal from denial of section 2255 petition, “At the time Murillo was sentenced, the United States Sentencing Guidelines provided that ....”), cert. denied,––– U.S. ––––, 133 S.Ct. 556, 184 L.Ed.2d 371 (2012).

Moreover, our Circuit has held that the rules governing federal-prisoner habeas petitions under 28 U.S.C. § 2255 are “nearly identical ... in substance” to the rules governing state-prisoner habeas petitions under 28 U.S.C. § 2254. See United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir.) (holding that Supreme Court decision addressing motions for...