United States District Court, D. Hawaii
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
Michael Seabright, Chief United States District Judge.
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,  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
reasons discussed below, the court DENIES Defendant's
§ 2255 Motion, DENIES the Motion for Discovery as moot,
and DENIES a Certificate of Appealability.
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,  based on 50 grams or more of
methamphetamine. ECF No. 54. A jury trial commenced against
Defendant,  and on October 9, 2012, after the jury
failed to reach a verdict, the court declared a mistrial. ECF
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.
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.
Ninth Circuit affirmed Defendant's conviction and
sentence 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. 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.
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. 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.
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.
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
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.
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.
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
AlaineParkerson 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.
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.
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.
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,
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.
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.
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.
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
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,
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
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.
STANDARDS OF REVIEW
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
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).
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).
§ 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
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).
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).
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
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).
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.
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.
Application of Legal Standard
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
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.
does not claim that this newly discovered evidence
establishes that he is actually innocent. 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.
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 - 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.
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).
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.
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.” § 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.
§ 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.
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)).
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. 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.
Attempt to Influence Crowley's Testimony
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.
trial, however, Crowley testified as follows:
Q Ms. Crowley, you said that [Defendant] was on your family
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.
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.
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).
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.
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.
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
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.
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
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.
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).
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
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.
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.
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
Payment of $100 to Jones
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 .