United States v. Self

• Citation: 100 F.Supp.3d 773
• Decision Date: 16 April 2015
• Docket Number: Nos. CV13–08199–PCT–DGC JFM,CR10–08036–PCT–DGC.,s. CV13–08199–PCT–DGC JFM
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Richard Larry SELF, Defendant/Movant.
• Court: U.S. District Court — District of Arizona

100 F.Supp.3d 773

UNITED STATES of America, Plaintiff/Respondent

v.Richard Larry SELF, Defendant/Movant.

Nos. CV13–08199–PCT–DGC JFM

CR10–08036–PCT–DGC.

United States District Court, D. Arizona.

Filed April 16, 2015.

Richard Larry Self, Littleton, CO, pro se.

Heather H. Sechrist, U.S. Attorneys Office, Tucson, AZ, for Plaintiff/Respondent.

ORDER

DAVID G. CAMPBELL, District Judge.

Movant Richard Larry Self filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. CVDoc. 1.¹ United States Magistrate Judge James F. Metcalf issued a report and recommendation (“R & R”) recommending that the motion be denied. CVDoc. 29 at 815. Movant filed an objection to the R & R on February 2, 2015. CVDoc. 34. For the reasons set forth below, the Court will accept the R & R and deny Movant's motion.

I. Background.

On March 9, 2010, a grand jury indicted Movant on four counts of Possession of Child Pornography, with forfeiture allegations. CRDoc. 1. Movant was arrested on March 14, 2010, and the Court appointed trial counsel soon after. CRDocs. 5, 14, 19. Movant made four motions to continue trial, the last of which was filed on September 17, 2010. CRDocs. 20, 23, 26, 32.

The Court granted all four motions and scheduled trial to start November 17, 2010. CRDocs. 21, 25, 28, 41, 49.

On September 21, 2010, the government filed a superseding indictment charging Movant with three counts of Transportation of Child Pornography, three counts of Possession of Child Pornography, and forfeiture allegations. CRDoc. 35. On October 13, 2010, Movant's counsel filed a motion to suppress evidence obtained from the search warrant issued January 27, 2010. CRDoc. 47. The motion was based on staleness and lack of probable cause. CRDoc. 47 at 6–10. The parties fully briefed the issue, and the Court denied Movant's motion. CRDocs. 47, 56, 65, 69.

On November 10, 2010, one week before Movant's trial date, Movant requested new counsel. CRDoc. 74; CVDoc. 34 at 37–38. Movant believed his attorney had failed to properly investigate his case (by not pursuing leads Movant suggested or interviewing witnesses Movant claimed would discredit prosecution witnesses), did not believe he was innocent, and would not present him with an unbiased defense. After considering Movant's complaints, the Court rejected the request, stating that based on the information Movant had provided, a different lawyer would not give Movant a better defense than the one current counsel was set to present. CRDoc. 74.

Trial proceeded as scheduled, and the jury found Movant guilty on all counts. Id.; CRDoc. 90. Counsel moved for a downward departure and variance at the sentencing. CRDoc. 93. The Court denied the request for an extension and Movant was sentenced to concurrent terms of 135 months for each transportation charge and 120 months for each possession charge—an effective sentence of 135 months. CRDocs. 95, 97.

On appeal, Movant challenged the trial court's denial of his motion to suppress, arguing that the search warrant was stale and insufficient to establish probable cause. CRDoc. 117. Movant also challenged his sentence as procedurally erroneous and substantively unreasonable. Id. The Ninth Circuit rejected Movant's claims and affirmed his conviction and sentence. Id.

On July 29, 2013, Movant filed his pro se motion to vacate. CVDoc. 1. Magistrate Judge Metcalf issued his R & R on October 31, 2014. CVDoc. 29. Movant has filed an objection on Grounds One through Eight. CVDoc. 34.

II. Legal Standard.

Under § 2255, a person in custody may “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds 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).

A party may file specific written objections to the R & R's proposed findings and recommendations. Fed.R.Civ.P. 72(b) ; 28 U.S.C. § 636(b)(1)(C). The Court must undertake a de novo review of those portions of the R & R to which specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). The Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Fed.R.Civ.P. 72(b) ; 28 U.S.C. § 636(b)(1).

In the context of ineffective assistance of counsel claims, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court must apply a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. To prevail on a claim for ineffective assistance, Movant must show that “(1) his attorney's performance was unreasonable under prevailing professional standards, and (2) a reasonable probability that but for counsel's unprofessional errors, the results would have been different.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting Strickland, 466 U.S. at 687–94, 104 S.Ct. 2052 ). Strickland defines reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id.

III. Analysis.

1. Ground 1: Ineffective Assistance on Search Warrant.

Movant objects on Ground 1(a), asserting that Judge Metcalf misunderstood his claim; on Grounds 1(b) and (c), arguing that Counsel was ineffective by failing to challenge the search based on improper service of the warrant; and on Ground 1(d), arguing that counsel failed to challenge the illegal search and seizure of Movant's person during the warrant's execution. CVDoc. 34 at 2–9.

A. Ground 1(a).

Movant asserts that his Ground 1(a) claim was misunderstood as challenging “the staleness of the evidence in the probable cause.” Id. at 2. In clarifying his argument, Movant claims that trial counsel was ineffective because she failed to challenge the search warrant on the basis that it contained no new probable cause, and was an improper reissue of a previously voided warrant. Id. at 2–3 (citing Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932) ).

Judge Metcalf understood Movant's position on Ground 1(a)—that the second search warrant was improper because it did not present new support for probable cause, and that a new probable cause statement should have been required for a valid warrant. CVDoc. 29 at 786–88. Judge Metcalf decided that Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), and the other cases relied on by Movant do not stand for the proposition that every warrant must be accompanied by new affidavits or statements. Id. at 787. Rather, a warrant must simply be based on timely information. Id. The Court finds Judge Metcalf's analysis to be sound. See id. at 786–88. Movant failed to show that new affidavits and statements of probable cause were required for a valid search warrant, and trial counsel's “failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.”Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982).

B. Grounds 1(b) and (c).

In his objection on Grounds 1(b) and (c), Movant reasserts the same arguments of improper service he made in his motion to vacate. See CVDoc. 2 at 2–3; CVDoc. 21 at 3–4; CVDoc. 34 at 3–6. The Court agrees with the R & R's analysis that a challenge to the search based on timing or lack of service would have been meritless, and failure to make the arguments was not ineffective assistance. CVDoc. 29 at 788–90.

C. Ground 1(d).

Movant's objection on Ground 1(d) is somewhat unclear. See CVDoc. 34 at 6–9. In his motion to vacate, Movant argued that trial counsel should have challenged the search of his truck on the ground that agents improperly searched Movant's person, improperly seized Movant's effects, and improperly detained Movant without issuing a Miranda warning. CVDoc. 2 at 3–5; CVDoc. 21 at 4–6. Judge Metcalf found that a challenge of the search by trial counsel on those grounds would have been meritless. CVDoc. 29 at 790–92. Further, Judge Metcalf noted that even if the court assumed the searches were improper, Movant failed to show how he was prejudiced by the search of his personal effects. Id. at 792. In his objection, Movant states that he believed he was under arrest during his detention and that he need not show prejudice. CVDoc. 34 at 7–9.

The Court has reviewed the R & R's treatment of Ground 1(d) and agrees that any challenge to the search of Movant's person or to his detention would have been meritless. CVDoc. 29 at 787–89. Movant's claim that he was not given a Miranda warning lacks merit because Movant does not claim that he was interrogated or that any statement obtained in violation of Miranda was used against him at trial. See United States v. Kim, 292 F.3d 969, 976 (9th Cir.2002) (holding that a defendant is entitled to a Miranda warning when police questioning exceeds the scope of a Terry stop and becomes a custodial interrogation); see also United States v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (“Potential violations [of the Miranda rule] occur, if at all, only upon the admission of unwarned statements into evidence at trial.”).

2. Ground 2: Ineffective Assistance on Double Jeopardy.

Movant states in his objection that he stands by his original challenge that counsel was ineffective in failing to challenge Movant's convictions based on double jeopardy. CVDoc. 34 at 9. Movant reasserts that: (1) the three possession of child pornography charges amounted to a single offense, and (2) his possession convictions were lesser included offenses of his transportation convictions. Id. at 9–10; CVDoc. 2 at 5–6; CVDoc. 21 at 6–8.

Applying 18 U.S.C. § 2252(a)(5)(B) and its reference to a...