1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, Case No.: 18cr1228-BEN 22cv1133-BEN 10 Respondent,
11 v. ORDER DENYING MOTION TO 12 ELISHAY BANKS, VACATE, SET ASIDE, OR 13 Movant. CORRECT A SENTENCE 14 15 I. BACKGROUND 16 Movant Elishay Banks filed a motion to vacate, set aside, or correct a sentence 17 pursuant to 28 U.S.C. § 2255. Having reviewed the motion, the Court finds that no 18 hearing is necessary, the motion is denied, and a certificate of appealability is denied. 19 After a jury trial, Banks was found guilty of violating 21 U.S.C. §§ 952 and 960 by 20 attempting to drive a car packed with 19.26 kilograms of 99% pure methamphetamine 21 wrapped in 46 packages and hid inside the body of the car. The Pre-Sentence Report 22 calculated a Sentencing Guideline range of 292 to 365 months. She was sentenced to 90 23 months in prison for counts 1 and 2, and 60 months to run concurrently with counts 1 and 24 2 for count 3. The conviction and sentence were affirmed on appeal. 25 Banks has timely filed her § 2255 motion alleging primarily ineffective assistance 26 of counsel. The Government filed an opposition to the motion. Banks has not filed a 27 traverse and she has no obligation to file a traverse. 28 1 II. LEGAL PRINCIPLES 2 A motion to attack a conviction and sentence under § 2255 is a federal prisoner’s 3 substitute for a petition for a writ of habeas corpus. Josephine R. Potuto, The Federal 4 Prisoner Collateral Attack, 1988 B.Y.U. L. Rev. 37, 37 (1988). Under § 2255, a movant 5 is entitled to relief if the conviction and sentence: (1) was imposed in violation of the 6 Constitution or the laws of the United States; (2) was given by a court without 7 jurisdiction to do so; (3) was in excess of the maximum sentence authorized by law; or 8 (4) is otherwise subject to collateral attack. United States v. Speelman, 431 F.3d 1226, 9 1230 n.2 (9th Cir. 2005). 10 If it is clear that the movant has failed to state a claim, or has “no more than 11 conclusory allegations, unsupported by facts and refuted by the record,” a district court 12 may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 13 F.2d 711, 715 (9th Cir. 1986); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) 14 (providing that “if the record refutes the applicant’s factual allegations or otherwise 15 precludes habeas relief, a district court is not required to hold an evidentiary hearing”). 16 Courts deny a hearing where “the petitioner’s allegations, viewed against the record, fail 17 to state a claim for relief.” United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir. 18 1996). A district court may summarily dismiss a § 2255 motion if the allegations in the 19 motion when viewed against the record do not give rise to a claim for relief or are 20 “palpably incredible or patently frivolous.” United States v. Withers, 638 F.3d 1055, 21 1063 (9th Cir. 2011). 22 Banks seeks to set aside her conviction on the grounds that her attorney rendered 23 ineffective assistance. A criminal defendant is entitled to the effective assistance of 24 counsel at all stages of a criminal proceeding. Although she is entitled to an effective 25 defense she is not entitled to a perfect defense, and attorney errors that have no 26 significant effect or are not reasonably likely to have changed the outcome are not a basis 27 for § 2255 relief. 28 1 In order to sustain a claim of ineffective assistance of counsel, the movant has the 2 burden of showing both: (1) that defense counsel’s performance was deficient; and, (2) 3 that this deficient performance prejudiced the defense. Strickland v. Washington, 466 4 U.S. 668, 690-92 (1984). “Failure to satisfy either prong of the Strickland test obviates 5 the need to consider the other.” Redmond v. United States, No. 21-55142, 2022 U.S. 6 App. LEXIS 14293, at *3 (9th Cir. May 25, 2022) (quoting Rios v. Rocha, 299 F.3d 796, 7 805 (9th Cir. 2002)). To satisfy the first prong, the movant must show that counsel’s 8 advice was not “within the range of competence demanded of attorneys in criminal 9 cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). In considering this issue, there is a 10 “strong presumption that counsel’s conduct falls within a wide range of acceptable 11 professional assistance.” Strickland, 466 U.S., at 689. Moreover, post hoc complaints 12 about the strategy or tactics employed by defense counsel, or complaints that defense 13 counsel did not conduct a sufficiently vigorous pretrial investigation, are typically found 14 to be insufficient to satisfy the first prong of Strickland. See, e.g., United States v. 15 Simmons, 923 F.2d 934, 956 (2d Cir. 1991) (appellant’s displeasure with strategy 16 employed by trial counsel insufficient to establish ineffectiveness). 17 To satisfy the second prong, a movant must show that she was prejudiced by the 18 deficient representation she received. The focus of the prejudice analysis is on whether 19 the result of the proceeding was fundamentally unfair or unreliable because of counsel’s 20 ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Proving that a deficient 21 performance caused prejudice requires more than showing that the errors had some 22 conceivable effect on the outcome of the proceeding. Strickland, 466 U.S., at 693. “An 23 error by counsel, even if professionally unreasonable, does not warrant setting aside the 24 judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. 25 Thus, the test for ineffective assistance of counsel here is whether the assistance of 26 Banks’ attorney fell below the constitutional standard for effective assistance, and if so, 27 whether it is reasonably likely that the ineffective assistance changed the outcome of the 28 1 case. Lockhart, 506 U.S., at 373-75 (O’Connor, J., concurring) (“The determinative 2 question [is] whether there is ‘a reasonable probability that, but for counsel’s 3 unprofessional errors, the result of the proceeding would have been different.’”). A 4 defendant’s mere conclusory allegations that counsel failed to provide effective 5 assistance do not satisfy the highly demanding standard of deficient performance and 6 resulting prejudice. Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986). 7 III. DISCUSSION 8 A. The Claims of Ineffective Assistance of Counsel 9 Banks had a right to present her ineffective assistance of counsel claim to the court 10 of appeals in her direct appeal. And she did. However, ineffective assistance of counsel 11 claims are not often decided on direct appeal because the trial record may be inadequate. 12 That is what happened here. Banks pursued and briefed her ineffective assistance of 13 counsel claim in her direct appeal but the court of appeals declined to rule on the claim 14 because the record was insufficient.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, Case No.: 18cr1228-BEN 22cv1133-BEN 10 Respondent,
11 v. ORDER DENYING MOTION TO 12 ELISHAY BANKS, VACATE, SET ASIDE, OR 13 Movant. CORRECT A SENTENCE 14 15 I. BACKGROUND 16 Movant Elishay Banks filed a motion to vacate, set aside, or correct a sentence 17 pursuant to 28 U.S.C. § 2255. Having reviewed the motion, the Court finds that no 18 hearing is necessary, the motion is denied, and a certificate of appealability is denied. 19 After a jury trial, Banks was found guilty of violating 21 U.S.C. §§ 952 and 960 by 20 attempting to drive a car packed with 19.26 kilograms of 99% pure methamphetamine 21 wrapped in 46 packages and hid inside the body of the car. The Pre-Sentence Report 22 calculated a Sentencing Guideline range of 292 to 365 months. She was sentenced to 90 23 months in prison for counts 1 and 2, and 60 months to run concurrently with counts 1 and 24 2 for count 3. The conviction and sentence were affirmed on appeal. 25 Banks has timely filed her § 2255 motion alleging primarily ineffective assistance 26 of counsel. The Government filed an opposition to the motion. Banks has not filed a 27 traverse and she has no obligation to file a traverse. 28 1 II. LEGAL PRINCIPLES 2 A motion to attack a conviction and sentence under § 2255 is a federal prisoner’s 3 substitute for a petition for a writ of habeas corpus. Josephine R. Potuto, The Federal 4 Prisoner Collateral Attack, 1988 B.Y.U. L. Rev. 37, 37 (1988). Under § 2255, a movant 5 is entitled to relief if the conviction and sentence: (1) was imposed in violation of the 6 Constitution or the laws of the United States; (2) was given by a court without 7 jurisdiction to do so; (3) was in excess of the maximum sentence authorized by law; or 8 (4) is otherwise subject to collateral attack. United States v. Speelman, 431 F.3d 1226, 9 1230 n.2 (9th Cir. 2005). 10 If it is clear that the movant has failed to state a claim, or has “no more than 11 conclusory allegations, unsupported by facts and refuted by the record,” a district court 12 may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 13 F.2d 711, 715 (9th Cir. 1986); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) 14 (providing that “if the record refutes the applicant’s factual allegations or otherwise 15 precludes habeas relief, a district court is not required to hold an evidentiary hearing”). 16 Courts deny a hearing where “the petitioner’s allegations, viewed against the record, fail 17 to state a claim for relief.” United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir. 18 1996). A district court may summarily dismiss a § 2255 motion if the allegations in the 19 motion when viewed against the record do not give rise to a claim for relief or are 20 “palpably incredible or patently frivolous.” United States v. Withers, 638 F.3d 1055, 21 1063 (9th Cir. 2011). 22 Banks seeks to set aside her conviction on the grounds that her attorney rendered 23 ineffective assistance. A criminal defendant is entitled to the effective assistance of 24 counsel at all stages of a criminal proceeding. Although she is entitled to an effective 25 defense she is not entitled to a perfect defense, and attorney errors that have no 26 significant effect or are not reasonably likely to have changed the outcome are not a basis 27 for § 2255 relief. 28 1 In order to sustain a claim of ineffective assistance of counsel, the movant has the 2 burden of showing both: (1) that defense counsel’s performance was deficient; and, (2) 3 that this deficient performance prejudiced the defense. Strickland v. Washington, 466 4 U.S. 668, 690-92 (1984). “Failure to satisfy either prong of the Strickland test obviates 5 the need to consider the other.” Redmond v. United States, No. 21-55142, 2022 U.S. 6 App. LEXIS 14293, at *3 (9th Cir. May 25, 2022) (quoting Rios v. Rocha, 299 F.3d 796, 7 805 (9th Cir. 2002)). To satisfy the first prong, the movant must show that counsel’s 8 advice was not “within the range of competence demanded of attorneys in criminal 9 cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). In considering this issue, there is a 10 “strong presumption that counsel’s conduct falls within a wide range of acceptable 11 professional assistance.” Strickland, 466 U.S., at 689. Moreover, post hoc complaints 12 about the strategy or tactics employed by defense counsel, or complaints that defense 13 counsel did not conduct a sufficiently vigorous pretrial investigation, are typically found 14 to be insufficient to satisfy the first prong of Strickland. See, e.g., United States v. 15 Simmons, 923 F.2d 934, 956 (2d Cir. 1991) (appellant’s displeasure with strategy 16 employed by trial counsel insufficient to establish ineffectiveness). 17 To satisfy the second prong, a movant must show that she was prejudiced by the 18 deficient representation she received. The focus of the prejudice analysis is on whether 19 the result of the proceeding was fundamentally unfair or unreliable because of counsel’s 20 ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Proving that a deficient 21 performance caused prejudice requires more than showing that the errors had some 22 conceivable effect on the outcome of the proceeding. Strickland, 466 U.S., at 693. “An 23 error by counsel, even if professionally unreasonable, does not warrant setting aside the 24 judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. 25 Thus, the test for ineffective assistance of counsel here is whether the assistance of 26 Banks’ attorney fell below the constitutional standard for effective assistance, and if so, 27 whether it is reasonably likely that the ineffective assistance changed the outcome of the 28 1 case. Lockhart, 506 U.S., at 373-75 (O’Connor, J., concurring) (“The determinative 2 question [is] whether there is ‘a reasonable probability that, but for counsel’s 3 unprofessional errors, the result of the proceeding would have been different.’”). A 4 defendant’s mere conclusory allegations that counsel failed to provide effective 5 assistance do not satisfy the highly demanding standard of deficient performance and 6 resulting prejudice. Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986). 7 III. DISCUSSION 8 A. The Claims of Ineffective Assistance of Counsel 9 Banks had a right to present her ineffective assistance of counsel claim to the court 10 of appeals in her direct appeal. And she did. However, ineffective assistance of counsel 11 claims are not often decided on direct appeal because the trial record may be inadequate. 12 That is what happened here. Banks pursued and briefed her ineffective assistance of 13 counsel claim in her direct appeal but the court of appeals declined to rule on the claim 14 because the record was insufficient. “The current record is not sufficiently developed to 15 permit us to conclude whether Banks received ineffective assistance of counsel.” U.S. v. 16 Banks, Appeal No. 20-50026, *3-4 (9th Cir. Nov. 26, 2021) (memorandum disposition), 17 pet’n for rehearing denied (Dec. 29, 2021). The appellate court observed that a § 2255 18 motion “permits the defendant to develop a record as to what counsel did, why it was 19 done, and what, in any, prejudice results.” Id. 20 Consequently, she brings her claim before this Court. See Massaro v. United 21 States, 538 U.S. 500, 504 (2003) (“We hold that an ineffective-assistance-of-counsel 22 claim may be brought in a collateral proceeding under § 2255, whether or not the 23 petitioner could have raised the claim on direct appeal.”). Unfortunately, the record is no 24 more complete today than it was on direct appeal, despite Banks having ample time to 25 bolster and perfect a record. The entirety of Banks’ statement of the claim in this Court is 26 found in four excerpted pages from her prior appellate brief attached to her current § 27 2255 motion. There are no additional supporting documents or declarations. 28 1 In those four excerpted pages, Banks says that her attorney was ineffective at trial 2 because he failed to investigate a witness named Javier. But the claim is implausible. 3 This Court presided over the trial in this case. Defense counsel said that he was familiar 4 with the discovery concerning Javier and discussed Javier’s possible testimony -- all 5 before trial during motion in limine proceedings. Moreover, defense counsel adopted a 6 strategy at trial of highlighting numerous text messages between Banks and Javier in an 7 effort to cast blame on Javier and minimize blame on Banks. 8 Without evidence of some sort of failure to investigate by her attorney, relief 9 cannot be granted. On the present record, there is no evidence at all of a failure to 10 investigate. Certainly, a disagreement over counsel’s reasonable tactical decisions does 11 not constitute ineffective assistance of counsel. See Wildman v. Johnson, 26 F.3d 832, 12 840 (9th Cir. 2001). Banks has not cleared the high hurdle of demonstrating deficient 13 performance by counsel. And Banks has hardly begun to satisfy the prejudice 14 requirement. She does not even address the prejudice prong. Neither ineffectiveness nor 15 prejudice are proven here. Both are required for § 2255 relief. As a result, Banks’ claim 16 is palpably incredible and no hearing is required. Withers, 638 F.3d at 1063. 17 B. Two Additional Claims 18 Banks offers two additional undeveloped claims. Banks claims: (a) there was 19 insufficient evidence for her conviction; and (b) the sentence should have included 20 downward departures for acceptance of responsibility and minor role. No supporting 21 facts are described and no arguments are articulated. It does not matter. The claims 22 cannot succeed because the claims were already raised on direct appeal and denied on the 23 merits. Banks, No. 20-50026 at *2-3. “When a defendant has raised a claim and has 24 been given a full and fair opportunity to litigate it on direct appeal, that claim may not be 25 used as basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d 1132, 26 1139 (9th Cir. 2000). These claims are non-substantial and this Court is bound by the 27 judgment of the appellate court; no hearing is required. 28 I IV. CONCLUSION 2 Accordingly, the motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or 3 || correct the sentence is DENIED. 4 CERTIFICATE OF APPEALABILITY 5 The Court finds that Movant has not made the required substantial showing of the 6 || denial of a constitutional right to justify the issuance of a certificate of appealability. The 7 || controlling statute in determining whether to issue a certificate of appealability is 28 8 ||U.S.C. § 2253. In this case, reasonable jurists would not find the determination that 9 || Movant is not entitled to relief under § 2255 debatable, wrong, or deserving of 10 ||}encouragement to proceed further. Therefore, the Court declines to issue a certificate of 11 appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 IT IS SO ORDERED. 13 || Date: May 8, 2024 c | ds t1sA 14 HO R T. BENITEZ United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 □□□□□□□□□□□□