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United States v. Drummondo-Farias

United States District Court, D. Hawaii

May 31, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JACOB DRUMMONDO-FARIAS, Defendant/Movant.

          ORDER DENYING (1) MOTION UNDER § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE, ECF NO. 307; (2) MOTION FOR DISCOVERY, ECF NO. 313; AND (3) CERTIFICATE OF APPEALABILITY

          J. Michael Seabright, Chief United States District Judge.

         I. INTRODUCTION

         Before the court are Defendant/Movant Jacob Drummondo-Farias' (“Defendant” or “Movant”) Motion under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), ECF No. 307, [1] and Motion for Discovery, ECF No. 313. Defendant challenges his conviction and sentence alleging violations of his constitutional rights to due process and a fair trial based on: (1) “newly discovered evidence”; (2) prosecutorial misconduct; (3) judicial misconduct; and (4) ineffective assistance of counsel.

         For the reasons discussed below, the court DENIES Defendant's § 2255 Motion, DENIES the Motion for Discovery as moot, and DENIES a Certificate of Appealability.

         II. BACKGROUND

         A. Procedural Background

         On February 9, 2012, a grand jury returned an Indictment charging Defendant, Joshua Miller (“Miller”), and Brandon Jones (“Jones”) with one count of conspiracy to distribute, and possess with intent to distribute, 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). ECF No. 15. A First Superseding Indictment charged the same offense against Defendant and Jones, [2] based on 50 grams or more of methamphetamine. ECF No. 54. A jury trial commenced against Defendant, [3] and on October 9, 2012, after the jury failed to reach a verdict, the court declared a mistrial. ECF No. 102.

         A Second Superseding Indictment added a new co-defendant, Joshua Lew (“Lew”). ECF No. 120. And on September 19, 2013, a Third Superseding Indictment charged Defendant and Lew with one count of conspiring with Miller and Jones to distribute, and possess with intent to distribute, 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); and charged Defendant alone with distribution of 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). ECF No. 173.

         Trial against Defendant and Lew commenced on November 4, 2013, and on November 8, 2013, Lew pled guilty to Count 1 of the Third Superseding Indictment. ECF Nos. 223, 228. On November 14, 2013, a jury found Defendant guilty of Count 1 and not guilty of Count 2. ECF No. 240. On February 24, 2014, this court sentenced Defendant to a term of 324 months imprisonment, followed by 10 years of supervised release. ECF No. 259.

         The Ninth Circuit affirmed Defendant's conviction and sentence[4] on August 5, 2015, ECF No. 291, and the Supreme Court denied Defendant's petition for writ of certiorari on January 19, 2016. ECF No. 302. Defendant timely filed the instant § 2255 Motion on January 18, 2017.[5] ECF No. 307. On February 7 and 21, 2017, Defendant filed motions to amend and/or supplement the § 2255 Motion. ECF Nos. 311, 314. The court granted both motions and ordered that the § 2255 Motion be construed as including the additional documents Defendant sought to add. ECF Nos. 312, 315.

         On February 21, 2017, Defendant filed a Motion for Discovery. ECF No. 313. The court held the motion in abeyance and directed the Government to address the motion in its Response to the § 2255 Motion. ECF No. 316. On April 28, 2017, the Government filed its Response to both the § 2255 Motion and the Motion for Discovery.[6] ECF No. 322. Defendant filed a Reply on May 30, 2017. ECF No. 324. Pursuant to an October 20, 2017 Order, ECF No. 327, the Government filed a Supplemental Statement on October 26, 2017, ECF No. 329. On December 8, 2017, Defendant filed a Reply to the Government's Supplemental Statement. ECF No. 330.

         B. Factual Background

         On January 26, 2012, law enforcement officers noticed a suspicious parcel at the Honolulu airport postal facility addressed to J. Roth at 1638 Young Street #2, Honolulu, Hawaii. Trial Tr. at 2-172 to 2-174; Presentence Report (“PSR”) ¶ 10, ECF No. 258. A narcotic-detecting dog “alerted” on the parcel, and a federal search warrant was obtained and executed on the parcel. Trial Tr. at 3-119; PSR ¶ 10. In the parcel were two protein powder bottles, each concealing two plastic bags containing a total of 889.9 grams of methamphetamine. PSR ¶¶ 10, 11; see Trial Tr. at 3-155 (verifying total weight of seized methamphetamine). The methamphetamine was removed and replaced with pseudo-methamphetamine, a small quantity of the seized methamphetamine, and a tracking device to allow a controlled delivery to the destination address. Id. ¶ 11.

         On January 27, 2012, investigators determined that someone was checking the shipping status of the parcel via the internet. Id. ¶ 12. The Internet Provider address of the inquirer was also monitoring the status of a second parcel sent by J. Lew from a Waialua, Hawaii address to J. Camacho in Citrus Heights, California. Id.; Trial Tr. at 5-144.

         At about 1:34 p.m. on January 27, 2012, an undercover investigator delivered the parcel to 1638 Young Street #2, where Jones accepted it. PSR ¶ 13; Trial Tr. at 3-178 to -89. Jones then walked to a nearby Jack in the Box restaurant at the corner of King Street and Punahou Street. PSR ¶ 13; Trial Tr. at 3-179 to -80. There, Jones met with Lew, who arrived driving an Acura sedan, and Miller and Defendant, who arrived together in a Nissan Pathfinder. PSR ¶ 13; Trial Tr. at 3-180 to -82. Jones wanted to leave at that time, but Defendant told him that he had to go back to the apartment to get the package. Trial Tr. at 3-182, 4-54, 5-307. At about 1:53 p.m., Miller and Defendant left in the Pathfinder, and at about 2:19 p.m., Lew left in the Acura. PSR ¶ 13.

         Jones left the Jack in the Box at about 2:34 p.m. and walked back to the Young Street apartment. PSR ¶ 14; see Trial Tr. at 3-184. Shortly thereafter, the beeper in the parcel activated, indicating that the parcel had been opened. PSR ¶ 14. Jones was arrested as he was leaving the Young Street apartment carrying the bottles of protein powder that contained the pseudo-methamphetamine. PSR ¶ 14; Trial Tr. at 3-185. Jones told law enforcement officers that he was supposed to take the protein bottles to Ala Moana Shopping Center (“AMSC”) and give them to Defendant. PSR ¶ 14. Officers proceeded to AMSC and arrested Defendant and Miller. PSR ¶ 14; see Trial Tr. at 5-44, -87 to -88.

         Miller consented to a search of his Nissan Pathfinder, which resulted in the discovery of Defendant's backpack containing a number of blank Western Union money orders and two Western Union money order receipts dated January 22, 2012. PSR ¶ 16; see Trial Tr. at 3-100 to -06, 5-88 to -89. One receipt was for $3, 000, listed Miller as the sender and Lew as the recipient, and was sent from the Foodland on School Street to a store in Fontana, California. PSR ¶ 16; see Trial Tr. at 5-137. The other, also for $3, 000, listed Defendant as the sender and Alaine[7]Parkerson as the recipient, and was sent from the Foodland at AMSC to Citrus Heights, California. PSR ¶ 16; see Trial Tr. at 5-136. Defendant's backpack also contained a notebook with “pay/owe” sheets. PSR ¶ 16; Trial Tr. at 4-116 to -20.

         On January 30, 2012, a search warrant was executed on the second parcel that was tracked via the internet and sent by “J. Lew” to “J. Camacho” in Citrus Heights, California, resulting in the discovery of $21, 000 in cash hidden in a macadamia nut candy box. PSR ¶¶ 12, 18. During a search of the Young Street apartment, investigators found an unspecified number of macadamia nut boxes. Id. ¶ 18; Trial Tr. 3-50. Lew was arrested on March 29, 2013. PSR ¶ 18.

         On November 4, 2013, Defendant and Lew appeared for jury trial. Id. ¶ 19. Before the end of trial, on November 8, 2013, Lew pled guilty to Count 1 of the Third Superseding Indictment. Id. At trial, the Government presented 30 witnesses including Jones, Miller, and Julio Camacho. Id. Defendant did not present any witnesses and did not testify at trial. Id.

         After his arrest on January 27, 2012, Jones provided a statement to investigators that was consistent with his trial testimony. PSR ¶ 17. Jones stated that he grew up with Defendant, Lew, and Miller, in Waialua. PSR ¶ 17; Trial Tr. at 3-169, -173 to -74. On January 27, 2012, Lew called Jones and asked if he could accept a parcel at the Young Street apartment in return for $100. Trial Tr. at 3-171 to -72. Lew then picked up Jones from his apartment in Waikiki and drove him to the Young Street apartment. Id. at 3-170 to -72. After receiving the parcel, Jones called Lew, who instructed Jones to go to the Jack in the Box. Id. at 3-179 to -80. There, Jones met with Defendant, Miller, and Lew. Id. Jones heard Defendant and Lew discussing that if law enforcement was aware of the parcel, they would have been arrested by now. Id. at 3-182. Defendant instructed Jones to go back to the Young Street apartment, open the parcel, and bring the protein powder bottles to AMSC. Id. at 3-182 to -84. Jones stated that he knew the parcel contained methamphetamine because he had previously received packages containing drugs for Defendant and Lew at his Waikiki apartment. PSR ¶ 22; Trial Tr. at 3-173 to -75, -183. He further stated that he, Defendant, Lew, and Miller were involved with drugs in one way or another, including distribution. Trial Tr. at 3-175 to -76, -183.

         After his arrest, Miller also provided a signed statement to investigators that was consistent with his trial testimony. PSR ¶ 15. Miller stated that he grew up with Defendant, Jones, and Lew in Waialua. PSR ¶ 15; see Trial Tr. at 5-46 to -47. He had recently moved back to Waialua, but paid the rent through the end of the month for the Young Street apartment. PSR ¶ 15; see Trial Tr. at 5-49 to -51 (clarifying that Miller allowed Defendant to take over paying the rent). He granted permission for Defendant, Jones, and Lew to hang out at the Young Street apartment. PSR ¶ 15; see Trial Tr. at 5-50 (explaining that Miller let Defendant, Jones, and Lew take over the Young Street apartment). Miller further stated that he knew that Defendant and Lew were distributing methamphetamine and admitted to receiving $200 from Defendant for sending $3, 000 to California via Western Union. PSR ¶ 15; Trial Tr. at 5-50 to -53, -55. He also stated that he drove Defendant to the post office to mail a parcel to California that Defendant told him contained $20, 000 for Lew to use to purchase methamphetamine, and that he drove Defendant to the airport to pick up Lew after Lew met with drug sources in California. PSR ¶ 15; Trial Tr. at 5-60, -66 to -67, -90 to -91.

         Miller testified that on January 27, 2012, he picked up Defendant and they went first to AMSC and then to Young Street. Trial Tr. 5-69, -76 to -78; see PSR ¶ 15. Miller stated that he knew the parcel would be delivered that day, so they were looking for undercover officers. Trial Tr. 5-76; see PSR ¶ 15. Miller further testified that they met Lew at O'Reilly's parking lot, and then went back to AMSC to wait for Lew's call telling them that the parcel containing methamphetamine had been delivered. Trial Tr. at 5-77 to -79.

         After receiving Lew's call, Defendant and Miller went to the Jack in the Box, where they met Jones and Lew. Trial Tr. at 5-79 to -80. The co-conspirators discussed concerns about the delivery, but Defendant indicated there was nothing to worry about and told Jones to return to the apartment and open the package. Id. at 5-80 to -82. Miller understood that after opening the parcel, Jones was supposed to deliver the protein powder bottles containing methamphetamine to Defendant at AMSC. PSR ¶ 15; see Trial Tr. at 5-77 to -82.

         Miller testified that after Jones went back to the Young Street apartment, he and Defendant went back to AMSC. Trial Tr. at 5-82; PSR ¶ 23. After not hearing from Lew and Jones, Defendant instructed Miller to return to the Young Street apartment to check on the situation. Trial Tr. at 5-84; PSR ¶ 23. When he did so, Miller saw law enforcement vehicles at the apartment, returned to AMSC, and told Defendant what he had seen. Trial Tr. at 5-85 to -86; PSR ¶ 23. Miller testified that Defendant then stated that he had just lost $50, 000. Trial Tr. at 5-86; PSR ¶ 23. An expert witness for the Government testified that the estimated street value of one pound of methamphetamine was $24, 000 to $30, 000, and that one kilogram would equal approximately 2.2 pounds of methamphetamine. Trial Tr. at 4-208. And the total weight of the methamphetamine seized was 889.9 grams, or just under one kilogram. Id. at 3-155.

         With respect to the second parcel, Miller testified that he and Defendant picked up Lew from the airport on or about January 25, 2012, immediately drove to the airport post office, gave Lew the second parcel, and that Lew filled out the mailing label and mailed the parcel. Trial Tr. at 5-90 to -92; PSR ¶ 24. The Government introduced flight records showing that Lew arrived on a Hawaiian Airlines flight from Sacramento, California to Honolulu, Hawaii at 1:35 p.m. on January 25, 2012, and that the second parcel was mailed at 2:18 p.m. that same day. PSR ¶ 24; Govt's Exs. 62, 76.

         Camacho testified that he met Lew when they worked together in California. Trial Tr. at 4-148; PSR ¶ 20. They lost contact for a period of time, but reconnected in November 2011. Id. Camacho testified that they began discussing methamphetamine distribution and that Lew “was excited because . . . [t]here was a market for . . . that product here in Hawaii, and he knew the people to distribute it.” Trial Tr. at 4-161. Camacho testified that Lew identified “the person” as “[h]is brother Jacob, ” described Jacob as “well connected, ” and stated that “making money is something that his brother was good at.” Id. at 4-161, -167 to -68. Camacho then testified about his agreement with Lew to obtain sources of methamphetamine in California and transport the drugs to Hawaii for distribution; Lew's travel between California and Hawaii; their purchase of methamphetamine from “Primo, ” and later from another source in Fontana, California; wire transfers via Western Union of drug proceeds sent to him, as well as his girlfriend Alaine Parkerson, and her brother; and the packaging and mailing of parcels containing methamphetamine. Id. at 4-159 to -179. Camacho testified that he met Primo, his first source, through one of his employees named Kora. Id. at 4-157 to -60. Camacho testified that his contact with Lew abruptly ended after Lew called to say “Shit went down. They caught my brother. You need to turn off your phone. I'm getting out of town. You need to get out of town.” Id. at 4-183.

         The Government introduced business records from Western Union showing wire transfers sent by Defendant and Miller to California, id. at 4-94 to -96, 4-108 to -09, 5-133 to -38; Govt's Exs. 43, 43-A; U.S. Postal Express Mail labels showing a pattern of parcels mailed to co-conspirators consistent with the seized parcel, Trial Tr. at 5-141 to -50; Govt's Exs. 65, 67, 69, 71, 73; and telephone records establishing frequent phone contact among the co-conspirators culminating in a flurry of calls made to Jones and Lew following Jones' arrest from pay phones at AMSC while Defendant and Miller were there, Trial Tr. at 5-167 to -76; Govt's Ex. 93.

         III. STANDARDS OF REVIEW

         The court's review of Defendant's § 2255 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.

         To obtain relief based on a constitutional violation, a movant must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003). That is, to warrant relief, a movant must show the existence of “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see United States v. Gianelli, 543 F.3d 1178, 1184-85 (9th Cir. 2008).

         A. Evidentiary Hearing

         A court must hold an evidentiary hearing to determine the validity of a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the [movant] 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. 2011) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). An evidentiary hearing is not required where the movant's 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.” Schaflander, 743 F.2d at 717. No. hearing is required when credibility issues can be “conclusively decided on the basis of documentary testimony and evidence in the record.” Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988). Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Rather, a movant must “allege specific facts which, if true, would entitle him to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (internal quotation marks and citation omitted).

         B. Procedural Default

         A § 2255 movant procedurally defaults those claims that could have been raised on direct appeal, but were not. Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003); United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985) (“Section 2255 is not designed to provide criminal defendants repeated opportunities to overturn their convictions on grounds which could have been raised on direct appeal.”). Procedural default may be overcome “only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice' or that he is ‘actually innocent.'” United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007) (citing Bousley, 523 U.S. at 622). Habeas review is not a substitute for an appeal. Bousley, 523 U.S. at 621.

         “Cause” that excuses the failure to raise a claim on appeal “must be something external to the [movant], something that cannot fairly be attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). 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, 477 U.S. at 488; see United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993) (explaining that “cause can be established by showing that the claim is based on newly discovered evidence that could not reasonably have been discovered” prior to default).

         If a movant shows “cause, ” the “actual prejudice” prong requires a movant to demonstrate “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.” United States v. Frady, 456 U.S. 152, 170 (1982).

         A movant who fails to demonstrate cause and prejudice can overcome procedural default by demonstrating that he is “factually innocent, not merely that his conviction was legally insufficient.” Hirano v. United States, 2017 WL 2661629, at *6 (D. Haw. June 20, 2017) (quoting Jones v. McGrew, 2014 WL 2002245, at &4 (C.D. Cal. May 15, 2014)); see Bousley, 523 U.S. at 623 (“‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.”). “To establish actual innocence, [a movant] must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012) (citation omitted). And to demonstrate factual innocence, a movant must produce “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Without such evidence, “even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Id. at 316.

         Exceptions to the cause and prejudice requirement include (1) claims that could not be presented without further factual development, and (2) ineffective assistance of counsel claims. See Bousley, 532 U.S. at 621-22 (claims requiring further factual development); Massaro v. United States, 538 U.S. 500, 505 (2003) (ineffective assistance of counsel claims); see also Braswell, 501 F.3d at 1150 n.1 (citing both Bousley and Massaro).

         IV. DISCUSSION

         Defendant asserts grounds for relief that fall into four broad categories, none of which was raised on direct appeal: (1) new evidence; (2) prosecutorial misconduct; (3) judicial misconduct; and (4) ineffective assistance of counsel. Because the instant § 2255 Motion can conclusively be decided based on the existing record, the court need not hold an evidentiary hearing.

         A. New Evidence

         1. Legal Standard

         Claims solely based on new evidence that fail to prove actual innocence are generally not cognizable under § 2255. See United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010); see also Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[T]he existence merely of newly discovered evidence relevant to the guilt of a [defendant] is not a ground for relief on federal habeas corpus.”) (emphasis and citation omitted); Conley v. United States, 323 F.3d 7, 14 (1st Cir. 2003) (en banc) (“Merely to claim that new evidence casts doubt, even grave doubt, on the correctness of a conviction is not a ground for relief on collateral attack.”). To be cognizable, a § 2255 motion must be based on an independent constitutional violation. Berry, 624 F.3d at 1038.[8]

         2. Application of Legal Standard

         In Ground One, Defendant claims that his constitutional rights to due process and a fair trial were violated because newly discovered evidence shows that:

• Camacho, a government witness, provided perjured testimony during trial regarding his involvement and connections to the drug trade;
• Prior to being sentenced, Lew told the Government that Defendant was not involved in the drug conspiracy; and
• the Assistant United States Attorney (“AUSA”) attempted to influence Sandrina Crowley (“Crowley”), a government witness, to provide false testimony.

See § 2255 Motion at PageID # 2872-74. Defendant provides declarations from Laurietta Farias relating statements Lew made to her, and an affidavit from Sandrina Crowley. See Laurietta Farias Decl. dated January 13, 2017 (“Farias Decl. I”), ECF No. 314-2; Laurietta Farias Decl. dated February 7, 2017 (“Farias Decl. II”), ECF No. 314-1; Sandrina Crowley Aff. dated December 30, 2016, ECF No. 307-2.

         Defendant does not claim that this newly discovered evidence establishes that he is actually innocent.[9] Thus, he must show that this newly discovered evidence supports an independent constitutional violation. As discussed below, the court finds that Defendant fails to do so.

         1. Camacho's Testimony

         Defendant alleges that in November 2016, he learned that Camacho's trial testimony - that Camacho first met his drug source, Primo, through a co-worker, and that Camacho's brothers were not his source of drugs[10] - was perjured. § 2255 Motion at PageID # 2872. Defendant provides his mother's affidavit stating that Lew told her that: (1) Camacho told Lew “about his involvement with his brother and father in drug distribution”; (2) Camacho's brother is a well-known singer in Mexico, is known as “Primo, ” and produces drugs to sell at his ranch in Sacramento; and (3) Camacho's father works for the Sacramento post office and “helps pass . . . drugs through the mail.” Farias Decl. I at ¶¶ 1-3.

         The introduction of perjured testimony, without more, does not rise to the level of a constitutional violation warranting federal habeas corpus relief. See Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) (“The essence of the due process violation is misconduct by the government, not merely perjury by a witness.”) (citation omitted); see also Shore v. Warden, 942 F.2d 1117, 1122 (7th Cir. 1991). Rather, a defendant's constitutional right to due process is violated when “the prosecution's case includes perjured testimony[, ] . . . the prosecution knew, or should have known, of the perjury, ” United States v. Agurs, 427 U.S. 97, 103 (1976), and the perjured testimony “was material, ” Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010). Perjured testimony is material “if there is any reasonable likelihood that the false [testimony] could have affected the judgment of the jury.” Id. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). That is, “[t]he question is not ‘whether the defendant would more likely than not have received a different verdict' if the false testimony had not been presented, but whether the defendant ‘received a fair trial, understood as a trial resulting in a verdict worthy of confidence.'” Jones v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012), cert. denied, 133 S.Ct. 2831 (2013) (citation omitted).

         Here, Defendant fails to provide any evidence whatsoever that the AUSA knew or should have known that Camacho's trial testimony regarding Primo was false (even assuming it was false). And the court will not simply presume that the AUSA elicited perjurious testimony. See United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989) (“The record does not show and we do not presume that the prosecutor used false testimony.”). Thus, Defendant fails to show that newly discovered evidence of Camacho's allegedly perjured testimony supports an independent constitutional violation. And absent an independent constitutional violation, Defendant's claim is not cognizable under § 2255.

         2. Lew's Statement

         Defendant alleges that his “mother also relayed to him that [Lew] told her that he made statements to the [AUSA], prior to being sentenced, that the [Defendant] was not involved.”[11] § 2255 Motion at PageID # 2872-73. Defendant's mother's affidavit, states that Lew told her that: (1) “[w]hile being questioned by the Government, [he] state[d] that [Defendant] had no involvement with drug distribution or setting up any type of scheme to conduct business of such”; (2) Lew “mentioned to the Government that [Defendant] never met or spoke with . . . Camacho”; and (3) Lew's “attorney was not present” when he made these statements. Farias Decl. II at ¶¶ 1-3.

         The § 2255 Motion does not specify when Lew allegedly made these statements to the AUSA. On October 20, 2017, this court thus directed the Government to “file a supplemental statement specifying all dates when Joshua Lew was interviewed or debriefed by government agents or counsel in this matter, ” and directed Defendant to file a response indicating, if possible, “the date on which Lew allegedly made the statement to the government that Defendant was not involved in drug trafficking.” ECF No. 327. According to the Government, Lew was debriefed only one time by a DEA agent on February 4, 2014, and that rather than vindicate Defendant, Lew implicated him in the alleged drug distribution conspiracy. See Govt's Suppl. Stmt. at 2; see also Govt's Ex. “A, ” ECF No. 329-1. Defendant disputes the content of the DEA agent's report, but does not dispute the February 4, 2014 date or suggest that Lew made any statement other than the one on February 4, 2014. See Petr's Reply at 2-3, ECF No. 330.

         Pursuant to the Fifth Amendment's Due Process clause, the Government must disclose exculpatory information to the defense. Brady v. Maryland, 373 U.S. 83, 86-87 (1963). But there can be no Brady violation absent a showing that the Government (1) had information favorable, and unknown, to the defense (2) that it suppressed before or during trial, and (3) there must have been a reasonable probability that had the information been disclosed, the outcome of the trial would have been different. United States v. Mazzarella, 784 F.3d 532, 538 (9th Cir. 2015) (citations omitted); see Bagley, 473 U.S. at 678 (explaining that Brady applies upon the post-trial discovery of “information favorable to the accused which had been known to the prosecution but unknown to the defense”); Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (“[W]here the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense.”) (quoting United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978)).

         Even assuming that Lew made an exculpatory statement regarding Defendant's involvement, it was made on February 4, 2014, well after the jury returned its guilty verdict on November 14, 2013. Thus, the Government did not obtain, and therefore could not have disclosed, Lew's statement when it even possibly could have affected the outcome of the trial. In short, there simply could not have been a Brady violation.[12] Because Defendant fails to show that newly discovered evidence of Lew's statement supports an independent constitutional violation, Defendant's claim is not cognizable under § 2255.

         3. Attempt to Influence Crowley's Testimony

         Defendant alleges that the AUSA attempted to get Crowley to provide false testimony. § 2255 Motion at PageID # 2874. Defendant provides Crowley' affidavit, in which she states that she “felt intimidated and scared” by the FBI agents who went to her house to discuss a cell phone she purchased for Defendant. Crowley Aff. at ¶ 3. Crowley further states that she “was forced to come down to the office of [the AUSA] . . . to answer questions and make a statement[.]” Id. ¶ 4. While at the AUSA's office, Crowley states that the AUSA:

kept stating that [Defendant] and [Lew] came to my house asking me to get them a phone on multiple occasions[.] [The AUSA] kept insisting that [Defendant] and [Lew] asked me to get the phone for them even after I told him multiple times that me and my husband insisted [that we] get [Defendant] a phone on his release [from custody for an unrelated offense] to help [Defendant with a] job and so we could keep in contact with them once he was released.

Id.

         During trial, however, Crowley testified as follows:

Q Ms. Crowley, you said that [Defendant] was on your family plan, correct?
A Yes.
Q How did that come about?
A He needed help, I guess he didn't have I.D. or credit, so I helped him out getting a phone, a telephone.

         Trial Tr. 2-157. Defendant concedes that Crowley did not provide false trial testimony, but claims nevertheless that because the AUSA intended to elicit false testimony, he was denied his rights to due process and a fair trial. § 2255 Motion at PageID # 2874. The court disagrees.

         A defendant's right to due process is violated when a prosecutor's misconduct, when viewed in context of the entire trial, “infected the trial with unfairness.” Darden v. Wainwright, 477 U.S. 168, 181-83 (1986); see United States v. Reyes, 660 F.3d 454, 461 (9th Cir. 2011) (“When reviewing for prosecutorial misconduct, we consider in the context of the entire trial ‘whether it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial.'”) (quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985)). The first inquiry is whether the prosecutor's conduct was improper, and if so, the second is whether such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). Thus, even where a prosecutor has committed misconduct, there is no due process violation unless such misconduct had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).

         Here, Crowley did not in fact provide false testimony. That is, the AUSA's alleged misconduct - even if true - could not have had any effect whatsoever on the jury's verdict and therefore, did not “infect[] the trial with unfairness.” Darden, 477 U.S. at 181. Thus, Defendant has shown no independent constitutional violation. And absent an independent constitutional violation, Defendant's claim is not cognizable under § 2255.

         B. Prosecutorial Misconduct

         In Grounds Three and Six, Defendant asserts claims for violation of his constitutional rights to due process and a fair trial based on numerous incidents of alleged prosecutorial misconduct. Defendant asserts that the AUSA: (1) made six “references to evidence he did not produce” during his opening statement, § 2255 Motion at PageID #2898-901; (2) made ten “serious and repeated material misstatements of facts not in evidence” during his closing argument, id. at PageID # 2902-07; (3) “failed to comply with the Court order” prohibiting his witness, Miller, from using the word “federal” in conjunction with halfway house, at PageID # 2909-10; (4) improperly defamed Defendant during closing argument by repeatedly calling him “sloppy, ” at PageID # 2966-67; and (5) altered evidence by adding Defendant's phone number to Miller's phone, id. at PageID # 2907-09.

         Defendant did not raise any of these claims of prosecutorial misconduct on direct appeal. Defendant's claim that the AUSA altered evidence by adding Defendant's phone number to Miller's phone, however, could not have been presented on appeal without further factual development. See Bousley, 532 U.S. at 621-22; Braswell, 501 F.3d at 1150 n.1. Thus, with respect to all but the claim of altered evidence, Defendant must show cause and prejudice or actual innocence to overcome procedural default, which he fails to do. And Defendant does not claim that any incident of alleged prosecutorial misconduct establishes his actual innocence. As before, Defendant argues only that these incidents deprived him of his rights to due process and a fair trial.

         The court first addresses claims of alleged prosecutorial misconduct for which Defendant must show cause and prejudice in order to overcome procedural default, that is, claims based on the AUSA's alleged misstatements of fact during opening statement and closing argument, Miller's testimony about a “federal” halfway house, and the AUSA's reference to Defendant as “sloppy.” Because his claim that the AUSA altered evidence is not subject to a cause and prejudice analysis, it will be discussed later.

         Defendant attempts to establish cause by alleging that evidence of prosecutorial misconduct “was not discovered until after direct appeal was affirmed, and needed to supplement the record.” § 2255 Motion at PageID # 2857, 2859. But Defendant was present to hear the AUSA's opening statement and closing argument, as well as Miller's testimony. Accordingly, Defendant fails to establish cause for not raising these claims of prosecutorial misconduct on direct appeal.

         But even if Defendant could establish cause, for the reasons discussed below, he also fails to establish prejudice. As set forth above, a defendant's right to due process is violated when a prosecutor's misconduct renders a trial “fundamentally unfair.” Darden, 477 U.S. at 181-83. Courts first determine whether the prosecutor's conduct was improper, and if so, then determine whether such conduct infected the trial with unfairness. Tan, 413 F.3d at 1112. That is, even assuming the prosecutor's conduct was improper, the court must determine whether any misconduct, considered in the context of the entire trial, appears likely to have affected the jury's discharge of its duty to judge the evidence fairly. See Brecht, 507 U.S. at 637; see also Reyes, 660 F.3d at 461. The court addresses prejudice for each of Defendant's allegations in turn.

         1. Opening Statement

         Opening statements “should be limited to a statement of facts which the [party] intends or in good faith expects to prove.” Leonard v. United States, 277 F.2d 834, 841 (9th Cir. 1960).

         Before counsel presented their opening statements, the court instructed the jury repeatedly that statements and argument from counsel are not evidence:

Now, the following things are not evidence and you must not consider them as evidence in deciding the facts of the case.
One, the statements and arguments of the attorneys. . . .
I will not allow you to take notes during the lawyers' opening statements and closing argument. Because as I told you earlier, neither of those constitute evidence. . . .
Now, trial is about to begin . . . . First, each side may make an opening statement. Again, an opening statement is not evidence. It is simply an outline, or sometimes what's called a “roadmap, ” to help you understand what that lawyer expects his side of the case to show.

Trial Tr. at 1-5 to -6, -12, -14. And the court reiterated this point at the end of trial when giving jury instructions:

The term “evidence” includes the sworn testimony of the witnesses and the exhibits admitted in the record.
Remember that any statements, objections, or arguments made by the lawyers are not evidence in the case. . . .
[I]t is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding on you.

Id. at 6-8. Jurors are presumed to “follow their instructions.” United States v. Smith, 831 F.3d 1207, 1215 (9th Cir. 2018) (citing United States v. Heredia, 483 F.3d 913, 923 (9th Cir. 2007) (en banc)).

         The court discusses in detail below each alleged instance where during his opening statement, the AUSA referred to evidence that he did not later introduce into evidence and determines that each instance, at most, was minor. And given the court's instructions to the jury, none of the minor inaccuracies in the AUSA's description of evidence he intended to introduce during trial could have had a “substantial and injurious effect or influence in determining the jury's verdict.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Thus, the AUSA's minor inaccuracies during opening statement did not infect the trial with unfairness. See Darden, 477 U.S. at 181-83; Tan, 413 F.3d at 1112.

         a. “Mr. Young”

         Defendant alleges that during opening statement, the AUSA stated that “Mr. Young” would provide testimony regarding a conversation among the co-conspirators in the Jack in the Box parking lot, but there was no such testimony from a “Mr. Young.” See § 2255 Motion at PageID # 2898. In fact, the AUSA stated that after Jones and Lew met up at the Jack in the Box parking lot,

Not much longer later another vehicle comes. A gold Pathfinder. In the Pathfinder there are two subjects. The driver, who is later identified as Joshua Miller - and Joshua Miller will testify in this case, and I'll talk more about him. The front seat passenger was Mr. Drummondo-Farias. The four of them are talking, observed talking. Obviously law enforcement doesn't know what they're talking about, but what Mr. Miller and Mr. Young will tell you was that they were talking about what was going on. Mr. Miller, he had lived previously at 1638 Young Street. He knew what the mailman looked like. And he told his other friends, [t]hat's not the regular mailman. That's not the guy who normally delivers the mail. And so he was nervous.

         Trial Tr. at 1-30. In context, it is clear that the AUSA was not actually referring to a fifth person, a “Mr. Young.” Rather, after clearly identifying the four co-conspirators, he stated that he would present testimony regarding the topic of a conversation among them at the Jack in the Box. And Miller did provide such testimony. See Trial Tr. at 5-79 - 5-80. The reference to “Mr. Young, ” made just before the AUSA stated that Miller's apartment was on Young Street, was just a simple mistake that neither rises to prosecutorial misconduct nor infected the trial with unfairness. See Darden, 477 U.S. at 181-83; Tan, 413 F.3d at 1112. Consequently, Defendant cannot show that he was prejudiced by the AUSA's reference in his opening statement to a “Mr. Young.”

         b. Payment of $100 to Jones

         During his opening statement, the AUSA stated that Jones “was offered $100.00 by Mr. Drummondo-Farias to go to Joshua Miller's old apartment and wait for the box and accept it.” Trial Tr. at 1-30. But Jones testified that it was Lew, not Defendant, who offered him the $100. Id. at 3-171 to -72. Defendant argues that this error misled “the jury in believing that [Defendant] orchestrated . ...


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