MOTION TO VACATE REGARDING MOTION TO VACATE § 2255 (Docket No. 166)
JOHN D. ROBERTS, Magistrate Judge.
The Amended § 2255 Motion raises several claims of ineffective assistance of trial counsel and of appellate counsel. The Amended Motion alleges the following ineffective assistance of trial counsel claims: (1) failing to file a motion to suppress based on an alleged illegal stop of the white Dodge Dakota on December 9, 2004; (2) failed to impeach the informant witness (Shelby Ward) by failing to bring out at trial that the informant Ward had previously been involved in an assault with the defendant, and by failing to question Ward about engaging in a illegal drug transaction while working as an informant in the Hollis investigation; (3) failing to challenge the search warrant for North Hoyt Apt #2 and for the South Bragaw apartment; (4) failing to develop evidence that the search warrants were based on false statements, omissions and misrepresentations and by not requesting a Franks hearing; (5) not seeking to impeach "law enforcement [officers];" and (6) failing to secure discovery from the government and to provide it to the defendant.
Several claims raised in the Amended § 2255 Motion were waived by the defendant in the statement of issues and supplemental briefing, namely whether trial counsel was ineffective in coercing the defendant to sign an inculpatory statement; whether trial counsel was ineffective in failing to call witnesses; and whether trial counsel was ineffective in failing to argue the admissibility of evidence offered by the government under Federal Rule of Evidence 404(b). See Docket 186.
At the evidentiary hearing conducted November 19, 2010, before the magistrate judge, Mr. Dewey presented three witnesses, Scott Sterling, Rex Butler and Lance Wells. Mr. Sterling was called to determine when discovery was provided to defense counsel. Mr. Butler was examined primarily as to why he did not file a Franks motion. Mr. Wells was examined concerning his efforts to obtain discovery from the government and the delays he encountered in receiving it
A judgment of conviction in this criminal case was entered against Arthur L. Hollis on November 9, 2005, following a jury trial in which Hollis was found guilty of Counts 1 through 3 of the First Superseding Indictment, Docket 109. Hollis was adjudged guilty of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and two counts of maintaining a drug involved premises in violation of 21 U.S.C. § 856(a)(1) and (b). Hollis was sentenced to serve 240 months on each of Counts 1 through 3 to run concurrently.
The conviction was affirmed by the Ninth Circuit Court of Appeals on June 20, 2007. See United States v. Hollis , 490 F.3d 1149 (9th Cir. 2007). A Petition for Certiorari was denied by the U.S. Supreme Court on January 22, 2008. 128 S.Ct. 1120 (2008). Related issues in Hollis's appeal include: the trial court's failure to suppress evidence, defense counsel's failure to impeach a witness, and defense counsel's failure to effectively argue a motion challenging the search warrant or to call fact witnesses at trial. Only ineffective assistance of counsel claims are presented in the pending 2255 motion.
Defendant Arthur Hollis filed an amended Motion to Vacate his conviction and sentence under 28 U.S.C. § 2255. Docket 166. The government filed an opposition at 169. Hollis filed a statement of issues and supplemental briefing in support of his motion at Docket 186. An evidentiary hearing was conducted on November 19, 2010. Hollis filed a Final Argument Brief, Docket 246. The government filed its Response at Docket 247.
Hollis requested another evidentiary hearing to obtain discovery material that had been identified at the previous evidentiary hearing. An evidentiary hearing was held January 9, 2012 limited to:
(1) Any benefit or quid-pro-quo promised the confidential informant Ward, including his potential treatment for prosecution or sentence as a result of his cooperating and/or testifying in the Hollis trial.
(2) Any debriefing reports of Ward's illegal activities contained in law enforcement records limited to Ward's criminal activity occurring between April 2004 up to the time Ward testified at the Hollis trial. This relates to reports existing before the conclusion of the Hollis trial.
(3) Any investigative reports of Ward regarding his drug dealing during his cooperation with the government during the investigation of other persons in the period between May and September 2004.
Agent Eliezer Feliciano, Agent Alvin Kennedy, and Shelby Ward testified. Transcript Evidentiary Hearing, Docket 262. Assistant U.S. Attorney Bradley filed a Response to defendant's subpoena to DEA prior to that hearing summarizing materials available in response consisting of 49 pages. Docket 263. Hollis objected to the government's response, Docket 264, 265 particularly as to redacted items and requested an in camera review. An ex parte hearing on the government's response was held March 13, 2012, after the government filed a supplemental response, Docket 270. The magistrate judge issued an order regarding the in camera review, Docket 271. Hollis moved for production of the Sentencing Transcript and documents in United States v. Shelby Ward, Case no. 3:04-cr-116-CR. See Docket 273, government's position at Docket 279. An order addressing this request was entered April 13, 2012 at Docket 281.
Following additional motion practice, the magistrate judge ordered the disclosure of certain pages of the DEA documents previously withheld after an in camera review. See Sealed Order at Docket 302. The court allowed Hollis an opportunity to recall the DEA agents to question them on the newly released documents regarding delivery of a FedEx package containing cocaine and Shelby Ward's prosecution. This hearing was delayed because Hollis was appointed several new counsel: attorney Meredith Ahearn, then David Nesbett, and ultimately he wanted to represent himself.
The final evidentiary hearing was held November 15, 2012. Following that hearing defendant filed his closing summary brief at Docket 395. The government filed its brief at Docket 399. In his opening statement Mr. Dewey summarized the ineffective assistance of counsel claim against Butler as the latter's failure to file a motion to compel discovery involving the confidential informant, Mr. Ward. The defendant argues that Mr. Butler should have filed a Franks motion based on inaccuracies of representations made in the affidavit in support of the search warrant for the Hoyt Street address. He argues that Butler should have filed a motion to compel discovery regarding information about the confidential source (CS) in the search warrant affidavit. The CS was later identified as Shelby Ward.
The central issue in the motion to vacate is whether any of Hollis's counsel rendered ineffective assistance of counsel under the Sixth Amendment. Whether the government violated its duty under Brady and its progeny was not raised in the initial § 2255 motion. In the § 2255 evidentiary hearings Hollis sought to discover the existence of any Brady material that the government failed to provide to his trial counsel.
Hollis's trial counsel knew prior to trial that the CS was dealing crack cocaine on his own without the knowledge of law enforcement while serving as an informant. At trial, attorney Butler argued that Ward was unreliable and his testimony should not be believed.
Dewey argues that Butler should have used an investigator to perfect a Franks motion during trial (Transcript Evidentiary Hearing 11/19/10, Docket 238 at p.8). Dewey relies upon testimony at trial by Officer Kennedy that he never trusted Mr. Ward. Dewey argues that the government did not provide discovery from the debriefing of Ward.
Dewey also argues that one of the ineffective assistance claims is the failure of counsel to obtain Brady information and file a motion to compel. (Transcript Evidentiary Hearing 11/19/10, Docket 238 at p. 15). He states that trial counsel was obligated to challenge fallacies in a search warrant affidavit through a motion to suppress and a Franks hearing. He argues that counsel failed to acquire impeachment evidence regarding the bias of the informant Ward in past drug deals. (Tr. 17). He states that this was not an issue on appeal, because there was no Franks motion at issue.
Dewey established through the testimony of attorney Wells and Sterling that Brady evidence was requested, including Kyles v. Whitley material for impeachment purposes. Dewey argues that because impeachment and Brady material were not timely given, two issues are presented, namely (1) whether there should have been a motion to compel it, and (2) whether such material should have been given by the government anyway.
FACTUAL FINDINGS FROM TESTIMONY:
A. Representation by Scott Sterling (Transcript Evidentiary Hearing 11/19/10, Docket 238 at p.19)
Scott Sterling was appointed to represent Hollis in December 2004. He represented Hollis until about March 2005. As a criminal defense lawyer, Sterling has handled cases ranging from misdemeanor DUI to murder cases. (Tr. 79). He started handling federal misdemeanor cases in 1987 and then felonies in 1989. He is now employed as an attorney for the State of Alaska, addressing fraud against the elderly, a job which he essentially considers to be a civil prosecutor. (Tr. 80-81).
Sterling read the search warrant and affidavit he received in discovery. (Tr. 26). He inferred from the affidavit that the officer was vouching for the veracity and reliability of the Confidential Source (CS). (Tr. 29). He observed that according to the search warrant affidavit, the officers' surveillance of the CS only went to the address and not to the particular apartment. The warrant is specific as to Apartment #2. Sterling realized this discrepancy right away. Sterling had no information that the CS had provided inaccurate information to officers other than as to his past drug dealing. (Tr. 33).
Sterling was "troubled" by the fact that Hollis was charged with conduct occurring in August of 2004, but was not formally charged until December 2004. He believed that the prosecutor should have been preparing discovery to provide to the defense before Hollis was formally charged. (Tr. 37-38). When he had received virtually no discovery by December 27, he wrote a letter to the prosecutor expressing his concern about not receiving discovery. As part of the discovery he received a lab report addressing the quantity and identity of the substance of the alleged drugs.
The AUSA filed a discovery conference certificate on December 28, 2004. That certificate included the following statement: "United States made available discovery to the defendant on December 28 and will continue to provide other discovery as it becomes available." Sterling did not receive all of the discovery that was given to him by the government prior to or at that conference. The prosecution filed another discovery certificate on February 23, 2005, following the superseding indictment.
Sterling assembled a discovery notebook, defendant's Exhibit B. (Tr. 39). The notebook contains all the discovery that he received prior to his withdrawal as counsel, except for CDs and videotapes that were provided. He promptly made copies right away to provide to Hollis. (Tr. 40).
Sterling wrote Hollis on December 30, 2004, providing legal advice and his initial impressions of the case after his initial review of the discovery received. The letter discussed the defendant's sentencing exposure if he were convicted and also provided some thoughts about the implications for either cooperating with the government or not in terms of a plea agreement. In his letter, Sterling described the CS as a person with a lot of legal problems who himself could face as much as twenty (20) years in jail. (Tr. 45).
Sterling filed a motion to extend the pretrial motion deadline and a motion to continue the trial in part because discovery had been delayed. Docket 16. On January 24, 2005 District Judge John Sedwick granted the defendant's motion to continue trial. The trial was continued several times until April 4, 2005.
Sterling does not recall receiving any DEA reports or information about any drug dealing activity of the CS. (Tr. 47). He stated that if he had received information about the CS involving himself in drug dealings during the time he was working for the police, this would have suggested deficiencies in the character of the CS and caused him to consider filing a motion for a Franks hearing. (Tr. 48). There was no indication in the discovery provided Sterling that the CS was a person who, in unrelated investigations, provided unreliable or untruthful information to the police. During the time Sterling was counsel for Hollis, there was no indication in the formal discovery that the officer did not trust the confidential informant. (Tr. 49).
Sterling received a letter from the prosecutor that on January 11 he had met with Detective Alvin Kennedy to review his discovery request. (Tr. 50). The letter enclosed DEA-7 reports pertaining to items recovered from search warrants and from Hollis on the date of his arrest. Sterling found this delay in production of discovery very troubling. Sterling was also bothered by a sentence in the prosecutor's January 11 letter that stated that Detective Kennedy had to obtain approval from his supervisor to produce discovery. (Tr. 59). This caused Sterling to suspect that the government was concealing information.
At the request of Hollis's family, Sterling consulted Bill Bryson, an experienced criminal defense attorney, about the case. In a January 12 letter Sterling outlined the case to Bryson and stated that if the defense was successful in getting Officers Kennedy and Balega on the stand in a suppression hearing he intended to followup with a Franks motion and hearing. (Tr. 51). Sterling never filed a Franks motion because nothing in the discovery indicated to him that officer Kennedy or some other officer misled the magistrate judge (Harry Branson) in the complaint affidavit or search warrant affidavits.
Sterling also consulted with Mark Rosenbaum, who had previously worked as an AUSA in Anchorage. When Sterling withdrew from the case, he provided the succeeding attorney, Lance Wells, with copies of the letters and all the material that he had received in the case. (Tr. 52).
Sterling discussed with AUSA Russo the possible terms of a plea agreement for Hollis. Sterling met with Hollis on February 18 and discussed with Hollis what might be feasible for reaching a plea agreement (Tr. 57). Sterling opined that Hollis did not feel he had sufficient information to make an intelligent decision about whether to enter into a plea bargain. Hollis wanted to learn more about the identity of the CS (CS-1) and possible impeachment evidence for that informant. (Tr. 56-57). The government filed a Certificate of Discovery Conference on February 23 two days after Sterling's letter.
On February 2, 2005, the government obtained a First Superseding Indictment, which added two counts to the charges against Hollis. Sterling considered this to reset the clock for production of discovery and the prosecutor's duty to provide discovery to run anew. The additional charges in the superseding indictment involved maintaining a drug involved premises. The new charges did not increase the mandatory minimum sentence available.
On February 24, 2005, Sterling wrote a letter to Hollis reporting, in part, that AUSA Russo had agreed to a sentence of 121 months with no "851 enhancement" being filed. One of the conditions of Hollis accepting that agreement was that he not file any more motions. (Tr. 60, 112). Sterling recommended that Hollis accept the plea agreement because he felt that Hollis's exposure to a 20-year sentence was too significant. (Tr. 60).
Sterling watched the videotapes of the drug deal involving Hollis and the confidential informant. The video portion shows a male in a car; then another person enters the car, and the two talked. Although there is an audio recording, the video does not depict Hollis. Sterling not only reviewed the tapes and videos he received with Hollis, he also had them transcribed and shared the transcriptions with Hollis. ...