Woolsey v. United States

1 WO [8] IN THE UNITED STATES DISTRICT COURT [9] FOR THE DISTRICT OF ARIZONA [11] John Woolsey, No. CV-21-00027-TUC-RM [12] Petitioner, ORDER [13] v. [14] United States of America, [15] Respondent. [17] Pending before the Court is Petitioner’s Second Amended Motion to Vacate, Set 18 Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 . (Doc. 11.)1 Respondents filed a [19] Response (Doc. 16) and Petitioner filed a Reply (Doc. 21). The Motion will be denied. [20] I. Background [21] After a jury trial, Petitioner was convicted of mailing threatening communications [22] in violation of 18 U.S.C. § 876 (c) and threatening to murder an officer or employee of the [23] United States in violation of 18 U.S.C. § 115 (a)(1)(B). (Doc. 11 at 2; see 4:17-cr-0106324 RM-DTF-1.)2 On February 13, 2019, this Court sentenced Petitioner to concurrent 3725 26 1 The Court previously denied Petitioner’s First Motion to Vacate Pursuant to 28 U.S.C. § 2255 and closed this case. (See Doc. 6.) The Court then partially granted Petitioner’s 27 Motion for New Trial and Motion to Amend, vacated its judgment, and reopened this action, permitting Petitioner to file his Second Amended Motion. (See Doc. 12.) 28 2 All record citations refer to the record in the above-captioned case, unless otherwise noted within the citation. 1 month terms of imprisonment followed by concurrent 3-year terms of supervised release, 2 with the sentence to be served consecutive to a sentence imposed in the District of North 3 Dakota. (Doc 80 in 4:17-cr-01063-RM-DTF-1.) Petitioner appealed his convictions, and 4 the Ninth Circuit Court of Appeals affirmed. (Doc. 104 in 4:17-cr-01063-RM-DTF-1.) 5 II. Second Amended § 2255 Motion 6 Petitioner seeks to vacate or set aside his convictions for threatening to murder an 7 officer or employee of the United States and mailing a threatening communication. (Doc. 8 11.) Petitioner’s Motion raises two grounds for the requested relief. (Id.) First, Petitioner 9 argues that the trial and appellate courts lacked jurisdiction over his offense under 18 10 U.S.C. § 876 . (Id. at 5.) Second, Petitioner argues that his trial and appellate counsel 11 provided ineffective assistance pursuant to Strickland v. Washington, 466 U.S. 668 12 (1984). (Id. at 6-7.) 13 a. Jurisdiction 14 Petitioner argues in Ground One that this Court lacked jurisdiction pursuant to 15 Article III of the United States Constitution to criminalize his conduct of mailing a 16 threatening communication. (Doc. 11.) Petitioner argues that the trial and appellate 17 courts’ jurisdiction was “hypothetical” because prison officials intercepted the 18 correspondence “without a valid stamp.” (Id. at 5.) 19 Assertions of lack of jurisdiction are cognizable in § 2255 motions. See 28 U.S.C. 20 § 2255; United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981.) Section 3231 of Title 21 18 of the United States Code provides: “The district courts of the United States shall have 22 original jurisdiction, exclusive of the courts of the States, of all offenses against the laws 23 of the United States.” Thus, district courts have original jurisdiction over cases involving 24 violations of federal statutes. United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986). 25 Pursuant to 28 U.S.C. § 1291 , circuit courts have jurisdiction over appeals from final 26 decisions of the district courts. 27 Here, this Court tried Petitioner for crimes under Title 18 of the United States 28 criminal code, specifically 18 U.S.C. §§ 115 (a)(1)(B) and 876(c). Thus, pursuant to 18 1 U.S.C. § 3231 , this Court had jurisdiction over Petitioner’s offenses. Furthermore, 2 pursuant to 28 U.S.C. § 1291 , the Ninth Circuit Court of Appeals had jurisdiction over 3 Petitioner’s appeal of his convictions. (See Doc. 104-1 at 2 in 4:17-cr-01063-RM-DTF4 1.) The courts clearly had jurisdiction over Petitioner’s criminal case. 5 To the extent Petitioner argues in Ground One that there was insufficient evidence 6 to support the verdict, that claim is precluded because it could have been raised on direct 7 appeal and Petitioner has not demonstrated cause and prejudice or actual innocence to 8 excuse the procedural default of the claim. “If a criminal defendant could have raised a 9 claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both 10 cause excusing his procedural default, and actual prejudice resulting from the claim of 11 error.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). The “cause and 12 prejudice” standard requires the prisoner to show not only that “some objective factor 13 external to his defense” impeded his efforts to raise the issue as required by each relevant 14 procedural rule,” Coleman v. Thompson, 501 U.S. 722, 753 (1991), but also that the error 15 he alleges “worked to his actual and substantial disadvantage, infecting his entire trial 16 with error,” United States v. Frady, 456 U.S. 152, 170 . A procedurally defaulted claim 17 may also be raised on habeas review if the petitioner demonstrates that he is “actually 18 innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998). “To establish actual 19 innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely 20 than not that no reasonable juror would have convicted him.” Id. at 623 (internal 21 quotation and citation omitted). “Actual innocence means factual innocence, not mere 22 legal insufficiency.” Id. (internal quotation and citation omitted). 23 Petitioner’s argument that the court lacked jurisdiction because the letter was not 24 properly stamped or otherwise mailed is procedurally defaulted. Petitioner has not argued 25 or demonstrated “cause and prejudice” or “actual innocence” to support raising this 26 argument for the first time in his § 2255 Motion. Furthermore, this argument fails on the 27 merits because Petitioner stipulated that he “knowingly and willfully, did deposit, in an [28] 1 authorized repository for mail, a letter, Exhibit 1, addressed to Don Robinson.” (Doc. 16 2 at 8; Doc. 98 at 19 in 4:17-cr-01063-RM-DTF-1.) 3 b. Ineffective Assistance of Counsel 4 Petitioner argues in Ground Two that his trial and appellate counsel provided 5 ineffective assistance in violation of the Sixth Amendment to the United States 6 Constitution. (Doc. 11.) Petitioner claims that his counsel were ineffective for (1) failing 7 to seek dismissal of the indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 , 8 and Federal Rules of Criminal Procedure 4 and 5; (2) failing to challenge the trial and 9 appellate courts’ jurisdiction; (3) failing to seek suppression of his statements; (4) failing 10 to call Don Robinson as a witness; (5) failing to raise an insanity defense; and (6) failing 11 to raise issues related to jury instructions on the “objective” nature of threat and “mailing 12 element.” (Id. at 6.) 13 A petitioner may appropriately raise ineffective assistance of counsel (“IAC”) 14 claims in a § 2255 petition. Massaro v. United States, 538 U.S. 500, 509 (2003). To 15 obtain relief on an IAC claim, a petitioner must show that (1) “counsel’s representation 16 fell below an objective standard of reasonableness,” and (2) counsel’s deficient 17 performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 , 18 691-92 (1984). To show prejudice, a petitioner “must show that there is a reasonable 19 probability that, but for counsel’s unprofessional errors, the result of the proceeding 20 would have been different. A reasonable probability is a probability sufficient to 21 undermine confidence in the outcome.” Id. at 694 . The prejudice component “focuses on 22 the question whether counsel’s deficient performance renders the result of the trial 23 unreliable or the proceeding fundamentally unfair . . . Unreliability or unfairness does not 24 result if the ineffectiveness of counsel does not deprive the defendant of any substantive 25 or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364 , 26 372 (1993). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of 27 sufficient prejudice, which we expect will often be so, that course should be followed.” 28 Strickland, 466 U.S. at 697 . A § 2255 motion must “allege specific facts which, if true, 1 would entitle [a petitioner] to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th 2 Cir. 2003) (citing United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996)). 3 Petitioner has plainly failed to show ineffective assistance under Strickland. 4 Petitioner does not develop his argument that trial counsel rendered ineffective assistance 5 by failing to seek dismissal of the indictment pursuant to the Speedy Trial Act and 6 Federal Rules of Criminal Procedure 4 and 5. The Court notes that Petitioner was 7 indicted on July 5, 2017 and was appointed counsel at his initial appearance held on July 8 14, 2017. (Docs. 1, 8 in 4:17-cr-01063-RM-DTF-1.) The record of Petitioner’s criminal 9 case indicates that he filed numerous motions to continue the trial and plea deadline and 10 he waived his speedy trial rights when setting a trial date. (See Docs. 11, 18, 23, 28, 39, 11 49 in 4:17-cr-01063-RM-DTF-1.) Petitioner has not established that trial counsel 12 rendered ineffective assistance by failing to seek dismissal on speedy trial grounds. 13 Second, trial counsel did not render ineffective assistance by failing to challenge 14 jurisdiction because, as described above in Section II(a), the district and appellate courts 15 clearly had jurisdiction over Petitioner’s criminal offenses. 16 Third, trial counsel did not render ineffective assistance by failing to seek 17 suppression of Petitioner’s statements to law enforcement on hearsay grounds because, 18 pursuant to Federal Rule of Evidence 801(d)(2), the statements are opposing party 19 statements and are not considered hearsay. 20 Fourth, trial counsel did not render ineffective assistance by failing to call Don 21 Robinson as a witness. Statements by Don Robinson were not introduced at Petitioner’s 22 trial and therefore Petitioner had no Sixth Amendment right to confront him. (See Doc. 23 70 in 4:17-cr-01063-RM-DTF-1); U.S. Const. Amend. VI (a criminal defendant has the 24 right to confront witnesses against him). Furthermore, although counsel’s failure to call 25 witnesses can amount to IAC, “to establish prejudice caused by the failure to call a 26 witness, a petitioner must show that the witness was likely to have been available to 27 testify, that the witness would have given the proffered testimony, and that the 28 witness[’s] testimony created a reasonable probability that the jury would have reached a 1 verdict more favorable to the petitioner.” Davidson v. Sullivan, No. 17-cv-0421-H-MDD, [2] 2018 WL 2837472 , at *21 (S.D. Cal. June 8, 2018), report and recommendation adopted 3 sub nom. Davidson v. Kernan, 2018 WL 3913395 (S.D. Cal. Aug. 15, 2018) (citing 4 Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003)). Petitioner has not shown that 5 Don Robinson was likely available to testify, that Robinson would have given the 6 proffered testimony, or that the testimony would have created a reasonable probability of 7 a verdict favorable to Petitioner. Thus, Petitioner has not shown prejudice from his trial 8 counsel’s failure to call Don Robinson as a witness. 9 Fifth, Petitioner provides no evidence that an insanity defense would have been 10 available to him at trial and therefore there is no basis for finding counsel’s assistance 11 ineffective on that ground. See United States v. Winn, 577 F.2d 86, 89-90 (9th Cir. 1978) 12 (a defense theory must be supported by some evidence for the jury to receive instruction 13 on it). 14 Sixth, although Petitioner avers that the jury failed to acquit him due to his 15 counsel’s failure to raise issues related to the jury instructions on the “objective” nature 16 of the threat and the “mailing element,” Petitioner does not develop this argument nor 17 explain why or how the outcome of his criminal proceeding would have been different 18 but for any instructional errors. Even assuming there were instructional errors, no 19 prejudice accrued to Petitioner from those errors because there is no reasonable 20 probability that the jury’s verdict would have been favorable to Petitioner absent the 21 alleged instructional errors. As discussed above, Petitioner stipulated at trial that he 22 knowingly and willfully deposited the letter at issue in an authorized repository for mail, 23 addressed to Don Robinson. (Doc. 16 at 8; Doc. 98 at 19 in 4:17-cr-01063-RM-DTF-1.) 24 Furthermore, in affirming Petitioner’s convictions, the Ninth Circuit Court of Appeals 25 held that even assuming the trial judge erred by not instructing the jury that it must find 26 an objective intent to threaten, there is “no reasonable probability the jury’s verdict would 27 have been different had the jury been properly instructed.” (Doc. 104-1 at 2-3 in 4:17-cr28 01063-RM-DTF-1 (internal quotation marks omitted).) 1 Accordingly, 2 IT IS ORDERED that Petitioner’s Second Amended Motion to Vacate, Set □□ Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 11) is denied. The Clerk of Court shall enter judgment accordingly and close this case. 5 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing || Section 2255 Cases, in the event Petitioner files an appeal, the Court declines to issue a 7\| certificate of appealability because reasonable jurists would not find the Court’s ruling 8 || debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 9 Dated this 31st day of January, 2022. [10] ul 12 —_ 4 Pf’ □□ 13 TD tigi □ □□ Honorable Rostsiary □□□□□□□ 14 United States District □□□□□ [28] -7-