Foreman v. United States

• Court: District Court, S.D. California
• Decided: January 13, 2022
• Docket: 3:21-cv-00043
• Status: Unknown

Opinion

5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No: 21cv0043 DMS; 14cr1288 DMS

12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO VACATE, SET ASIDE, OR

14 MARCUS ANTHONY FOREMAN, CORRECT CONVICTION AND SENTENCE 15 Defendant. 16 17 18 On March 11, 2016, Defendant was found guilty of participating in a RICO 19 conspiracy in violation of 18 U.S.C. § 1962(d). (ECF No. 1077.) As part of the verdict, 20 the jury also made special findings that the RICO conspiracy included the agreement that 21 one of the co-conspirators would commit one or more of the following racketeering acts 22 in furtherance of the conspiracy: (1) murder, (2) conspiracy to commit murder, (3) sex 23 trafficking of a minor, and (4) sex trafficking by force, fraud or coercion. (Id.) The Ninth 24 Circuit affirmed Defendant’s conviction and sentence in an unpublished opinion filed on 25 April 30, 2019. (ECF No. 1429.) 26 On January 7, 2021, Defendant filed the present motion under § 2255. In his motion, 27 Defendant raises a number of arguments. First, he asserts there was insufficient evidence 1 to support his conviction. Second, he argues he was prejudiced by the admission of a video 2 recording. Third, Defendant claims he received ineffective assistance of trial counsel. 3 Fourth, Defendant contends the verdict was vague, and his sentence should therefore be 4 reduced to 20 years. Fifth Defendant argues the conspiracy for which he was convicted 5 varied from the conspiracy alleged in the indictment. Sixth, Defendant asserts the 6 prosecutor engaged in misconduct. Seventh, Defendant claims the expert opinion went 7 beyond the scope of the proffer and was prejudicial. Eighth, Defendant contends he 8 received ineffective assistance of appellate counsel. Ninth, Defendant argues cumulative 9 error. The United States responds that Defendant’s fourth claim and one of his allegations 10 of prosecutorial misconduct were already litigated, and should be denied on that basis. The 11 United States also argues Defendant did not receive ineffective assistance of trial or 12 appellate counsel. As to Defendant’s remaining arguments, the United States asserts they 13 are barred by the procedural default rule. 14 The Court agrees with the United States’ first argument that claim 4 and one of 15 Defendant’s allegations of prosecutorial misconduct were resolved on direct appeal, and 16 thus cannot serve as the basis for relief under § 2255. See United States v. Hayes, 231 F.3d 17 1132, 1139 (9th Cir. 2000) (“When a defendant has raised a claim and has been given a full 18 and fair opportunity to litigate it on direct appeal, that claim may not be used as a basis for 19 a subsequent § 2255 petition.”) 20 Turning to Defendant’s ineffective assistance of counsel claims, Defendant must 21 meet two requirements to prevail. See Strickland v. Washington, 466 U.S. 668 (1984). First, 22 he must show his attorney’s representation fell below an objective standard of 23 reasonableness. Id. at 688. Second, Defendant must show prejudice, i.e., a reasonable 24 probability that but for counsel’s errors, the result of the proceedings would have been 25 different. Id. at 694. 26 Here, Defendant asserts his trial counsel provided ineffective assistance in the 27 following respects: (1) She failed to produce evidence disproving that Defendant acted in 1 specific gang instruction, (3) she failed to effectively represent Defendant during plea 2 negotiations, and (4) she discouraged Defendant from testifying on his own behalf and 3 failed to object to the prosecutor’s comment on Defendant’s decision not to testify. Despite 4 these assertions, Defendant “has not supported his claim with sufficient argument, 5 statements of specific facts, or citations to the trial record.” United States v. Bickle, No. 6 2:10-cr-00565-RLH-PAL, 2016 WL 155004, at *2 (D. Nev. Jan. 13, 2016). Indeed, the 7 United States points out that counsel submitted an instruction on the RICO count, (see ECF 8 No. 965), contrary to Defendant’s suggestion. Accordingly, Defendant’s ineffective 9 assistance of trial counsel claim fails.1 10 As for Defendant’s remaining claims, the United States argues they are barred by the 11 procedural default rule. “A § 2255 movant procedurally defaults his claims by not raising 12 them on direct appeal and not showing cause and prejudice or actual innocence in response 13 to the default.” United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citations 14 omitted). Here, Defendant admits he did not raise claims 1 or 2 on direct appeal, (Mot. at 15 5, 6), and the record reflects he did not raise his other claims on direct appeal. See United 16 States v. Ross, United States Court of Appeals for the Ninth Circuit, Case No. 16-50357, 17 ECF No. 21. Thus, in order for this Court to consider these claims, Defendant must show 18 cause and prejudice or actual innocence. 19 Defendant attempts to meet the cause standard for claims 1 and 2 by asserting his 20 appellate counsel refused to raise those claims, but as discussed above, Defendant has not 21 shown counsel’s decision was objectively unreasonable. In the absence of that showing, 22 Defendant has not demonstrated the cause necessary to overcome the procedural bar. See 23 Murray v. Carrier, 477 U.S. 478, 492 (1986) (“Attorney error short of ineffective assistance 24 of counsel does not constitute cause for a procedural default even when that default occurs 25 26 27 Defendant’s claim that his appellate counsel was ineffective fails for the same reasons, 1 1 ||on appeal rather than at trial.”) Accordingly, the remainder of Defendant’s claims do no 2 entitle him to habeas relief. 3 For these reasons, Defendant’s motion to vacate, set aside, or correct his □□□□□□□□□□ 4 sentence is denied.2 The Court also denies a certificate of appealability becaus 5 || Defendant has not made “‘a substantial showing of a denial of a constitutional right.” Miller 6 || El v. Cockrell, 537 U.S. 322, 327 (2003). 7 IT IS SO ORDERED. 8 || Dated: January 13, 2022 » g J 9 a Yn: 10 Hon. Dana M. Sabraw, Chief Judge United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 \| ——_——————— 3 2 Tn light of the Court’s discussion above, Defendant’s motion for appointment of counsel is denied, see United States v. Crow, No. 1:17-CR-00242-LJO-SKO-1, 2019 WL 3996620, 24 *1-2 (E.D. Cal. Aug. 23, 2019) (denying motion for appointment of counsel to assist 95 || with § 2255 petition where issues were not so complex that denial of appointment of counsel would deprive defendant of his right to due process), as is his motion for discovery 26 || and to expand the record. See United States v. Grimm, No. 2:08-cr-00064-JCM-GWF-1, 97 WL 7877344, at *2 (D. Nev. July 29, 2019) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)) (stating good cause for discovery exists only “’where specific 28 |] allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief ....’”’)