H. RUSSEL HOLLAND, District Judge.
Motion to Vacate
These proceedings pursuant to 28 U.S.C. § 2255 were commenced by defendant's pro se motion to vacate, set aside, or correct the judgment entered in this case. In due course, counsel was appointed for defendant and an amended motion was filed. The amended motion set out seven grounds, all of which were claims of ineffective assistance of counsel. As proceedings on the amended motion went forward, the first, sixth, and a portion of the fifth grounds for relief were waived or abandoned by counsel. A separate or amended motion alleging prosecutorial misconduct was never filed; however, the parties and the U.S. magistrate judge have all made mention of prosecutorial misconduct.
The remaining ineffective assistance of counsel issues are:
(1) Ineffective assistance in failing to file a motion to suppress based upon an alleged illegal stop of defendant's white Dodge Dakota on December 9, 2004.
(2) Ineffective assistance in failing to impeach plaintiff's cooperating source based upon his illegal drug activity while employed as an informant and an assault involving defendant.
(3) Ineffective assistance in failing to challenge search warrants for 540 North Hoyt, Apt. 2, and 743 South Bragaw, Apt. 2.
(4) Ineffective assistance based upon an alleged failure to properly impeach officers based upon alleged misrepresentations by officers in search warrant affidavits.
(5) Ineffective assistance based upon an alleged failure to secure discovery from plaintiff and provide it to defendant for purposes of evaluating a plea of guilty by agreement.
The original and amended motion to vacate were referred to a United States magistrate judge who conducted extensive proceedings between January 26, 2009, when the original motion to vacate was filed, and July 10, 2013. During this time, three evidentiary hearings were conducted. On July 10, 2013, the assigned magistrate judge entered his report and recommendation that the motion be denied; and after considering objections which were essentially repetitive of earlier arguments, a final report and recommendation that the motion be denied was entered on September 9, 2013.
After reviewing the magistrate judge's report and recommendation, the court personally reviewed the relevant portions of the file developed through the entry of judgment by this court and the affirmance of that judgment by the Ninth Circuit Court of Appeals, including the entire transcript of defendant's trial. The court has personally reviewed the entirety of the record of proceedings before the magistrate judge leading to his reports and recommendations, including the transcripts of the three evidentiary hearings, the exhibits admitted at these hearings and those ordered produced for defendant, and the transcripts of ex parte proceedings on motions of counsel to withdraw.
Because of the extended nature of the factual circumstances underlying defendant's indictment, the unusually long duration and complexity of the proceedings before the magistrate judge, and because the sequence of events is often important as to what happened both pretrial and during these proceedings, the court has assembled a chronological timeline. See attached appendix.
I. Applicable Law
A. Standard for Ineffective Assistance of Counsel
Strickland v. Washington , 466 U.S. 668 (1984), establishes a two-prong test for determining whether counsel has rendered constitutionally ineffective assistance of counsel. The defendant must show that his attorney's representation was deficient and that this deficiency was prejudicial. Id. at 688, 694. The burden is upon the defendant to establish that his attorney's performance was "so deficient that it fell below an objective standard of reasonableness.'" Silva v. Woodford , 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland , 466 U.S. at 688). Strickland holds that judicial scrutiny of an attorney's performance is highly deferential, and the court should make every effort to eliminate the distorting effect of hindsight and to evaluate the conduct from the attorney's perspective at the time. Strickland , 466 U.S. at 689. There is a strong presumption that an attorney's conduct falls within the wide range of reasonably professional assistance. Id . To establish prejudice, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694. A reasonable probability is one ?sufficient to undermine confidence in the outcome." Id . Thus, the defendant must show more than an error that could conceivably have some effect on the outcome of the proceeding. Because the defendant must prove both deficient representation and resulting prejudice, the court may address either or both prongs in determining the motion to vacate premised on such grounds. The court need not determine whether an attorney's performance was deficient if such alleged deficiency could not have resulted in prejudice under the test.
B. Standard for Brady Violation
In a case factually similar to this case,  Amado v. Gonzalez, 734 F.3d 936, No. 11-56420 (9th Cir. Oct. 30, 2013), the Ninth Circuit Court of Appeals has recently reexamined the basics of the obligations placed upon prosecutors by Brady v. Maryland , 373 U.S. 83 (1963).
The purpose of Brady is to ensure that "criminal trials are fair, " Brady , 373 U.S. at 87, and "that a miscarriage of justice does not occur, " United States v. Bagley , 473 U.S. 667, 675 (1985). Placing the burden on prosecutors to disclose information "illustrate[s] the special role played by the American prosecutor in the search for truth in criminal trials." Strickler v. Greene , 527 U.S. 263, 281 (1999).
Amado, No. 11-56420, slip op. at 21-22.
In Amado, the circuit emphasizes the fact that the duty placed upon the prosecution "exists regardless of whether the defense made any request of the prosecution; the prosecution is required to provide material, favorable information even where the defendant does not make a Brady request.'" Id. at 22 (quoting Bagley , 473 U.S. at 680-82).
Addressing the fact that the prosecution is not just required to produce information favorable to a defendant, the circuit in Amado further observes:
Favorable evidence includes that which impeaches a prosecution witness. In Giglio v. United States , 405 U.S. 150, 154 (1972), "the Government's case depended almost entirely" on one witness, yet the prosecution failed to inform the defense that the witness testified in exchange for a promise from the government that he would not be prosecuted. The Supreme Court held that the prosecution was required to inform the defense about its agreement with the witness because "evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness's] credibility and the jury was entitled to know of it...."
Id. As the court in Amado as well as the Supreme Court has made clear, the prosecution's obligation extends to any material impeachment evidence, not just plea agreements. Id. at 22-23 (citing Bagley , 473 U.S. at 676).
Expanding upon the nature of the obligation which Brady places upon the prosecution, the Amado court observes that, "[t]he Supreme Court has not tempered the Brady obligation of prosecutors by imposing a due diligence standard on defense counsel." Id. at 23. However, the circuit court hastens to make it clear that defense counsel cannot assert a Brady violation based upon information of which the defense was aware but chose not to disclose in the course of trial. Id . On the other hand, a Brady violation may be based upon the prosecution's failure "to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.'" Id . (quoting Kyles v. Whitley , 514 U.S. 419, 437 (1995)).
A Brady violation has three elements. Strickler , 527 U.S. at 281-82. First, there must be evidence that is favorable to the defense, either because it is exculpatory or impeaching. Id . Second, the plaintiff must have willfully or inadvertently failed to produce the evidence. Id. at 282. Third, the suppression must have prejudiced the defendant. Id.
The prosecution's failure to produce a particular piece of evidence is not a Brady violation "if the government provides the defendant with the core Brady materials and the defendant fails to show that additional materials would have made a difference at the trial." Amado, No. 11-56420, slip op. at 26-27. To find prejudice under Brady and Giglio, it is not necessary to find that the jury would have come out differently. Kyles , 514 U.S. at 434. It suffices that there be "a reasonable probability of a different result" as to either guilt or penalty. Id . Prejudice exists "when the government's evidentiary suppression undermines confidence in the outcome of the trial'." Id . (quoting Bagley , 473 U.S. at 678).
C. Standard for Franks Proceedings
Franks v. Delaware , 438 U.S. 154 (1978), sets out the standards for addressing challenges to search warrants allegedly based upon untruthful or misleading fact statements in search warrant affidavits. To succeed on such a challenge, a defendant must demonstrate that the alleged falsity was necessary to support a finding of probable cause for issuance of a search warrant. United States v. Craighead , 539 F.3d 1073, 1080 (9th Cir. 2008). The defendant must make a substantial preliminary showing that the affiant knowingly and intentionally made a false statement or that he or she made a statement recklessly disregarding the truth of factual matters upon which the search warrant depended. United States v. Flyer , 633 F.3d 911, 916 (9th Cir. 2011). Franks proceedings are not a substitute for cross-examination. A Franks proceeding will fail if, having set aside the challenged statements, there remains sufficient support for a finding of probable cause for a search. Franks , 438 U.S. at 171-72. In the latter event, it is not necessary for the court to conduct any hearing. It necessarily follows that where no substantial preliminary showing can be made, a defendant cannot fault his attorney for failing to file a Franks motion.
Statement of Facts and Pretrial Proceedings
Shelby Ward was convicted of a drug offense in November of 1994. After he was released from prison and on supervised release, Ward was implicated in further drug dealing and was jailed but released with the approval of Judge Fitzgerald on June 18, 2004, to assist plaintiff as a confidential source. On August 18, 2004, in a supervised or controlled buy, Ward (using government-provided money) purchased cocaine base from defendant.
Ward and his motorcycle were searched prior to embarking on the controlled buy. Ward was permitted to take with him to the buy nothing but the government-provided money and his driver's license. The court finds that there is no evidence that Ward had cocaine base secreted on his person or on his motorcycle when he went to meet with defendant. While on his way to the original buy site, a Red Apple parking lot, Ward stopped briefly at the Northway Mall. While at the Red Apple parking lot, Ward was briefly contacted by two individuals, one of whom apparently sought to buy drugs. At defendant's request, the buy site was moved to a Shell gas station. The court finds that Ward did not obtain the drugs ultimately delivered to task force officers from anyone other than the defendant. The court further finds that Ward was under surveillance during the entire time he was traveling to-and-from (and was at) the original and changed buy sites. There is no evidence that someone other than defendant and Ward were in the vehicle at the Shell station. Upon returning to task force offices, the officers retrieved 9 ounces of cocaine base from Ward.
As is normal, Ward had been fitted with an audio transmitting device prior to proceeding to the buy location, and arrangements to video tape the anticipated transaction were made. During the transaction, defendant said very little which was recorded, and the video of the transaction, while showing a vehicle known to be used by defendant, does not depict the defendant. As a consequence of the poor quality of the audio and visual recordings of the transaction, Ward's testimony was especially important to plaintiff's case against defendant.
After the August 18, 2004, transaction, task force officers received an unconfirmed report that Ward was entering into unauthorized, unsupervised drug transactions for his own account. On August 30, 2004, task force officers and assistant U.S. attorneys met to discuss the foregoing situation. A memorandum of this meeting was put in DEA files, but was not copied to the assistant U.S. attorneys involved in this case. Plaintiff concedes that this memorandum should have been produced as Brady material but was not.
Employing a confidential source other than Ward, task force officers arranged to make a drug purchase from Ward in September of 2004. Ward was prosecuted for that offense (selling one ounce of cocaine) as well as for the possession of 145.3 grams of cocaine base seized from Ward's residence pursuant to a search warrant obtained by Ward's probation officer and executed May 15, 2003. Ward pled guilty to a criminal complaint making the foregoing charges pursuant to a plea agreement that included Ward's commitment to be truthful and to continue assisting plaintiff. After defendant's trial at which Ward testified pursuant to his plea agreement, Ward was sentenced to a lengthy term of imprisonment. Task force officers were aware of at least two other transactions allegedly involving Ward, but deemed them not to be prosecutable for lack of corroboration.
On December 9, 2004, task force officers arrested defendant, searched his vehicle from which several items of potential drug dealing were photographed and seized, and on December 10, 2004, defendant was arraigned on a criminal complaint charging him with the August 18, 2004, sale of cocaine base. Items seized from defendant's vehicle and the photographs were admitted without objection in the course of defendant's trial.
On the day after defendant's arrest, Detective Kennedy obtained and then executed a search warrant for 540 North Hoyt, Apt. 2. In his search warrant affidavit, Kennedy reports that on June 18, 2004, he started an investigation of defendant based upon information from a confidential source later identified as Ward. Kennedy had determined that Ward "was providing reliable information regarding the drug trafficking activities of others in Alaska." Kennedy further averred that "law enforcement, however, learned after the completion of several investigations, including one described in this affidavit [namely, the August 18, 2004, transaction] that the CS [Ward] was dealing crack cocaine on his/her own without the knowledge of law enforcement." The affidavit further represents that Ward was a convicted felon for drug dealing and was being prosecuted for his side dealing. The search of 540 North Hoyt, Apt. 2, resulted in the discovery and seizure of evidence of drug dealing. On appeal, the Ninth Circuit Court evaluated the Kennedy affidavit and determined that: "[t]he references to the cooperating witness [Ward] were limited to his role in setting up the drug transaction and played no part in the determination that probable cause existed that evidence of drug dealing would be found in the apartment." United States v. Hollis , 490 F.3d 1149, 1153 (9th Cir. 2007).
On December 15, 2004, defendant was indicted for the August 18, 2004, drug transaction: a charge of distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendant was arraigned and pled not guilty. On February 2, 2005, a superseding indictment was returned against defendant, repeating Count 1 and adding Counts 2 and 3, maintaining drug premises in violation of 21 U.S.C. § 856(a)(1). Defendant was arraigned on the superseding indictment and pled not guilty.
Defendant was represented by three attorneys in connection with the August 18, 2004 charges. Sterling was appointed first. When Sterling was permitted to withdraw,  Wells was appointed. When Wells was permitted to withdraw,  Butler was appointed. Butler was appointed well before trial and represented defendant through the trial. A fourth attorney represented defendant at sentencing, and a fifth represented him on a direct appeal. Sterling and Wells found defendant a very difficult client.
Pretrial discovery from the plaintiff was superficially normal in this case. However, Sterling was troubled by what he deemed to be inadequate disclosures from the plaintiff. These concerns, as well as defendant's personal concerns about discovery, seem to have been a predominate factor in the souring of the attorney-client relationship between defendant and attorneys Sterling and Wells. From time to time, defendant has contended that his attorneys were not providing him with discovery materials. The court finds, however, that each of Sterling, Wells, and Butler in turn did make available to defendant the discovery that was made available to them by plaintiff. In due course prior to trial, Butler was provided with additional Brady, Giglio, and Jencks and materials (herein Brady material).
Defendant went to trial on the superseding indictment on August 8, 2005. Ward was examined and cross-examined extensively by the prosecution and defense counsel Butler. In response to Butler's cross-examination questions, Ward testified as to the details of the controlled buy of cocaine base from defendant, his (Ward's) long career as a drug dealer, his felony conviction for drug dealing, his drug dealing while on supervised release, his drug dealing for his own account while also working for plaintiff as a confidential source, and his lying to Detective Kennedy about drug dealing. Ward was also questioned about his plea and cooperation agreement with plaintiff by which Ward hoped for (but was not promised) a substantial sentence reduction on the new charges against him. Ward confessed to his willingness to lie to help himself.
Defendant was convicted on all three counts and was sentenced to 240 months on each of Counts 1, 2, and 3. A merits appeal was taken. Defendant's conviction and judgment were affirmed. 490 F.3d 1149 (9th Cir. 2007). Defendant's motion to vacate was filed January 26, 2009, which led to the formulation of the ineffective assistance of counsel issues set out above.
A. Issue 1 - Ineffective Assistance of Counsel: Vehicle Search
Defendant contends that counsel (Sterling, Wells, and Butler) who represented him prior to trial failed to file a motion to suppress based upon an alleged illegal stop of defendant's white Dodge Dakota on December 9, 2004.
Defendant's premise for this argument - that he was illegally stopped and arrested on December 9, 2004 - is baseless. Facts developed at the trial of this case demonstrate beyond any question the existence of probable cause for Detective Kennedy and others to stop and arrest defendant in connection with the August 18, 2004, controlled drug transaction between confidential source Ward and defendant. Defendant's vehicle was searched as an incident to that arrest. Items seized from defendant's vehicle (including a scale with cocaine residue) were admitted at trial. Due to the fact that the seizure of items from defendant's vehicle took place three months ...