The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER: (1) DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN A FEDERAL CUSTODY; AND (2) DENYING A CERTIFICATE OF APPEALABILITY
Currently before the court is Petitioner Nelson Gaitan-Ayala's ("Gaitan-Ayala") Petition Pursuant to 28 U.S.C. § 2255 to Vacate Sentence and Set Aside for a New Sentencing ("§ 2255 Motion"). Doc. Nos. 731, 738. GaitanAyala challenges his sentence on various grounds, including ineffective assistance of counsel.
The government filed an Opposition on May 29, 2012, Doc. No. 740, and Gaitan-Ayala filed a Reply on July 30, 2012. Doc. No. 747. On March 11, 2013, an evidentiary hearing was held regarding Gaitan-Ayala's claims that his counsel, Eric Seitz, provided ineffective assistance of counsel regarding plea negotiations and in failing to discuss the amount of time Gaitan-Ayala faced if he proceeded to trial and received a guilty verdict. For the following reasons, the court DENIES Gaitan-Ayala's § 2255 Motion and DENIES a certificate of appealability.
On May 31, 2007, a grand jury in the District of Hawaii returned a 10-count Indictment charging Gaitan-Ayala, John Eduardo Ayala, Hector Cruz, Wilsonis Ayala, Raychel Cabral, Roxanne Bates, and Ryan Ikeda with conspiracy to possess with intent to distribute and to distribute 50 grams or more of methamphetamine and related offenses.
On August 23, 2007, the same grand jury returned a 14-count First Superceding Indictment ("FSI"), which added Defendants Jose Abelardo Ayala, Jerry Arreola, and Brandon Saragosa, and charged Defendants with conspiracy with intent to distribute and to distribute 500 grams or more of methamphetamine and related offenses. The FSI charged Gaitan-Ayala with five counts, including:
(1) conspiring to possess with intent to distribute and to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846 (Count 1); (2) distributing 50 grams or more of methamphetamine on November 16, 2006 in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count 6); (3) distributing 50 grams or more of methamphetamine on March 23, 2007 in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count 7); (4) using a communication facility in causing and facilitating the commission of a conspiracy to possess with intent to distribute and to distribute methamphetamine on December 13, 2006 in violation of 21 U.S.C. § 843(b) (Count 11); and (5) using a communication facility in causing and facilitating the commission of a conspiracy to possess with intent to distribute and to distribute methamphetamine on December 17, 2006 in violation of 21 U.S.C. § 843(b) (Count 12).
Trial commenced against Gaitan-Ayala on October 7, 2008 and after five days of testimony, the jury returned a verdict against Gaitan-Ayala on all Counts of the FSI on October 17, 2008.*fn1
After the trial, the government filed three "Notices of Newly Discovered Giglio Material," and in response, Gaitan-Ayala filed a Motion for New Trial. On April 2, 2009, the court granted the Motion for New Trial as to Counts 6, 11, and 12 of the FSI. See United States v. Gaitan-Ayala, 2009 WL 901522 (D. Haw. Apr. 2, 2009). The government chose not to retry Gaitan-Ayala on these counts, and on June 15, 2009, the court sentenced Gaitan-Ayala on Counts 1 and 7 to 264 months in prison, five years supervised release, and a $100 special assessment.
Gaitan-Ayala subsequently appealed, arguing that the court erred in sustaining the conviction on Counts 1 and 7, and that other alleged errors (i.e., his pretrial confinement in Honolulu Federal Detention Center's Special Housing Unit ("SHU"), the admission of gun photographs at trial, the prosecution's leading questions at trial, the exclusion of Nathan Oandasan's prior statement at trial, and interruptions of counsel's closing argument) rendered his trial unfair. On August 9, 2010, the Ninth Circuit affirmed Gaitan-Ayala's conviction. United States v. Gaitan-Ayala, 454 Fed. Appx. 538 (9th Cir. 2010).
On January 24, 2013, Gaitan-Ayala filed his § 2255 Motion. Doc. Nos. 731, 738. On January 30, 2013, the court entered an order finding that Gaitan-Ayala waived his attorney-client privilege as to the issues raised in the § 2255 Motion, as well as to communications between Gaitan-Ayala and Seitz that are reasonably related to those issues. Doc. No. 736. On May 29, 2012, the government filed its Opposition, Doc. No. 740, and Gaitan-Ayala filed a Reply on July 30, 2012. Doc. No. 747.
On August 2, 2012, the court entered an Order requiring (1) an evidentiary hearing on the limited issue of Seitz' advice regarding the plea process and likely prison sentence upon a guilty verdict, and (2) that counsel be appointed to Gaitan-Ayala for this limited issue. Doc. No. 748. An evidentiary hearing on this limited issue was held on March 11, 2013, where Gaitan-Ayala and Seitz testified.
The court's review of Gaitan-Ayala's Motion is governed by 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established by Act of Congress 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.
A court should hold an evidentiary hearing on a § 2255 motion "unless the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "In determining whether a hearing and findings of fact and conclusions of law are required, '[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.'" United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2010) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). "Thus, the district court's decision that [the petitioner's] ineffective assistance claim did not warrant an evidentiary hearing [is] correct if his allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting Schaflander, 743 F.2d at 717).*fn2 Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
Gaitan-Ayala raises a laundry list of reasons why he is entitled to relief pursuant to § 2255, which can be categorized as (1) claims already raised on direct appeal; (2) claims that were raised neither at trial nor on direct appeal; (3) a claim that the court erred during sentencing by applying a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a); (4) a claim that new impeachment evidence regarding witness Carlos Aguilar-Alvarez warrants a new trial and/or dismissal of the FSI against him, and (5) claims for ineffective assistance of counsel. The court addresses these claims in turn.
A. Claims Raised on Direct Appeal
Where a defendant raises an issue "on direct appeal and the previous panel addressed it, then that decision is law of the case." United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (citing In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996)). "Under the 'law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case." Id. at 499 (quoting Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)). The law of the case doctrine applies where the issue in question was "decided explicitly or by necessary implication in [the] previous disposition." Id. (quoting United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000) (alterations in original)).
So long as the issues presented "are essentially the same," the law of the case doctrine will apply unless the movant establishes that: "(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial." Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012), cert. granted, 133 S. Ct. 476 (2012) (quotations omitted); see also Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (listing additional factors as including whether other changed circumstances exist, or a manifest injustice would otherwise result).
The law of the case doctrine applies to two of Gaitan-Ayala's claims -- that he was rotated through the SHU during his pretrial custody, Doc. No. 731, Pet'n at 3, and that the government failed to timely disclose Giglio material such that a new trial was required on all counts of the FSI. Id. at 7. Gaitan-Ayala raised these same arguments on direct appeal and the Ninth Circuit rejected them -- the Ninth Circuit (1) held that Gaitan-Ayala's rotation through the SHU was reasonably related to the government's goal of preventing witness intimidation,*fn3 Gaitan-Ayala, 454 Fed. Appx. at 540, and (2) affirmed the district court's determinations that the Giglio material did not impact the convictions on Counts 1 and 7. Id. at 539-40. Further, Gaitan-Ayala offers no reason why the law of the case doctrine should not apply.
The court therefore DENIES Gaitan-Ayala's § 2255 Motion raising claims regarding his rotation through the SHU and the government's disclosure of Giglio material.
B. Claims That Could Have Been Raised on Appeal
Absent a showing of cause and prejudice, a federal habeas petitioner procedurally defaults on all claims that were not raised on direct appeal, other than claims asserting that the petitioner was deprived of effective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). The Supreme Court has explained:
[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) "cause" excusing his double procedural default, and (2) "actual prejudice" resulting from the errors of which he complains.
Frady, 456 U.S. at 167-68.
"'[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991). Examples of external factors that constitute cause include "interference by officials," or "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "actual prejudice," a § 2255 petitioner "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.
Gaitan-Ayala raises several issues in his § 2255 Motion that he failed to raise on appeal, including that: (1) he was deprived attorney-client privacy because his attorney visits were videotaped, Doc. No. 731, Pet'n at 3; (2) the government vouched for the credibility of witness Zaneta Nixon and/or other witnesses at trial, id. at 4; and (3) he received an illegal sentence as to Count VII because the jury convicted him of a violation of 21 U.S.C. § 846, but the court sentenced him based on a violations of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), id. at 5. Because Gaitan-Ayala has failed to establish cause for his default and prejudice, these claims all fail.
Specifically, all of these claims should have been reasonably available to Gaitan-Ayala's counsel such that he cannot establish that any external factor prevented him from raising these issues on appeal. And to the extent Gaitan-Ayala argues that he failed to earlier raise these issues due to his counsel's ineffective assistance, Gaitan-Ayala has failed to establish any prejudice -- his assertions of prejudice are so vague and conclusory that he has failed to show that any of these alleged errors "worked to ...