Smith v. United States

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 UNITED STATES OF AMERICA, Case No. 3:15-cr-00061-HDM-WGC 3:21-cv-00248-HDM 8 Plaintiff, v. 9 ORDER EDWARD SMITH, 10 Defendant. 11 12 Before the court is a motion to vacate, set aside, or 13 correct sentence pursuant to 28 U.S.C. § 2255 filed by defendant 14 Edward Smith (ECF No. 935). The government has responded (ECF 15 No. 942), and Smith has replied (ECF No. 945). 16 I. Factual and Procedural Background 17 On August 5, 2015, Smith and nine other co-defendants were 18 charged by way of indictment with a large drug distribution 19 conspiracy and other related crimes. (ECF No. 1). Smith’s 20 charges stemmed from his orchestration, while incarcerated at 21 Northern Nevada Correction Center, of several drug transactions 22 outside the institution between co-defendant Andres Rodriguez 23 and Roberto Contreras Lopez, a confidential informant for the 24 Drug Enforcement Administration. Smith’s charges included one 25 count of conspiracy to possess with intent to distribute, three 26 counts of methamphetamine distribution, one count of money 27 laundering and one count of illegal use of a communication 28 facility. (Id.) The indictment was superseded for a second time 1 on March 9, 2016. On February 28, 2018, a third superseding 2 indictment was returned against Smith only, adding one more 3 count of methamphetamine distribution. 4 All of Smith’s co-defendants pleaded guilty while Smith 5 proceeded to trial. At trial, the government presented evidence 6 that Smith directed co-defendant Andres Rodriguez to sell 7 various amounts of methamphetamine on three occasions to a man 8 named Javier, whose contact information Smith had secured from 9 another inmate. Javier was, unknown to either Smith or 10 Rodriguez, a confidential informant cooperating with the Drug 11 Enforcement Agency. Smith also asked Rodriguez to give $1,000.00 12 to a correctional officer who agreed to smuggle drugs into 13 Smith’s prison. Smith arranged for a wire transfer of $1,500.00 14 to pay for the drugs and to cover the correctional officer’s 15 payment. Marisella Rivera, the girlfriend of another prison 16 inmate, Jorge Murillo, conducted the wire transfer, and 17 Rodriguez collected the funds per Smith’s instruction. The 18 evidence included several phone calls from Smith to Rodriguez 19 and one from Smith to Lopez Contreras, as well as conversations 20 between Rodriguez and Lopez Contreras and the testimony of 21 Rodriguez, Lopez Contreras, and DEA Agent Blaine Beard. Smith 22 did not testify. 23 After the government’s evidence, Smith’s attorney moved for 24 Rule 29 dismissal. Counsel argued, in part, that the government 25 had not met its burden to prove that the phone calls were made 26 by Smith. (ECF No. 832 (Tr. 324)). The motion, which was made 27 and argued outside the presence of the jury, was denied. (Id. at 28 1 325). Smith at that point opted not to testify, a decision about 2 which he was canvassed. (Id. at 326-27). 3 During closing argument, defense counsel stated: 4 I will, from the outset, concede . . . that the government has proven that Andres Rodriguez was 5 involved in a massive drug operation, and that Andres Rodriguez was involved with somebody inside the prison 6 as part of his operation. What the government has not established is that it was Mr. Smith involved. 7 8 (Id. at 409). He argued that Lopez Contreras had never met Smith 9 so could not identify him as the speaker on the phone calls and 10 that Rodriguez, who was the only person who had identified 11 Smith, was not trustworthy and had significant incentive to 12 falsely pin the blame on Smith. Counsel also argued: 13 You may have 50 reasons that you think, ah, Mr. Smith probably did it. I think he probably did it. Fifty of 14 them. But, if you have one reasonable doubt that the government has not established that it was Mr. Smith 15 making those phone calls, then it is your duty to find him not guilty under the requirements of this Court 16 and the law. 17 (Id. at 426). 18 Following deliberations, the jury found Smith guilty on all 19 counts. He was later sentenced to 235 months in prison. 20 Following a direct appeal, in which Smith raised, among other 21 things, a sufficiency of the evidence claim as to his money 22 laundering conviction, Smith filed the instant § 2255 motion. 23 II. Standard 24 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 25 vacate, set aside, or correct his sentence if: (1) the sentence 26 was imposed in violation of the Constitution or laws of the 27 United States; (2) the court was without jurisdiction to impose 28 the sentence; (3) the sentence was in excess of the maximum 1 authorized by law; or (4) the sentence is otherwise subject to 2 collateral attack. Id. § 2255(a). 3 Smith primarily asserts claims of ineffective assistance of 4 counsel. Ineffective assistance of counsel claims are governed 5 by Strickland v. Washington, 466 U.S. 668 (1984). Under 6 Strickland, a petitioner must satisfy two prongs to obtain 7 habeas relief—deficient performance by counsel and prejudice. 8 466 U.S. at 687. With respect to the performance prong, a 9 petitioner must carry the burden of demonstrating that his 10 counsel’s performance was so deficient that it fell below an 11 “objective standard of reasonableness.” Id. at 688. “‘Judicial 12 scrutiny of counsel’s performance must be highly deferential,’ 13 and ‘a court must indulge a strong presumption that counsel's 14 conduct falls within the wide range of reasonable professional 15 assistance.’” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) 16 (citation omitted). In assessing prejudice, the court “must ask 17 if the defendant has met the burden of showing that the decision 18 reached would reasonably likely have been different absent 19 [counsel’s] errors.” Strickland, 466 U.S. at 696. 20 III. Analysis 21 A. Grounds One and Four 22 In his first and fourth grounds for relief, Smith asserts 23 that counsel was ineffective for failing to challenge the phone 24 calls that were introduced at trial. (Tr. Exs. 1-8 & 21). 25 Specifically, Smith argues that the “talk time” for each of 26 these calls listed in the Nevada Department of Corrections’ 27 official call log does not match the call duration for the calls 28 identified in the government exhibits. He therefore appears to 1 suggest that the phone calls have been tampered with or are not 2 otherwise authentic. Ground One asserts that Smith’s attorneys 3 were ineffective for failing to investigate and notice the 4 discrepancies, and Ground Four asserts that Smith’s attorneys 5 were ineffective for failing to object to introduction of the 6 calls due to the discrepancies. The claims are closely aligned 7 and therefore properly considered together. 8 Smith can demonstrate neither deficient performance nor 9 prejudice. It is evident, when comparing the recordings of the 10 phone calls to the NDOC call log, that the “talk time” included 11 only the time after the preliminary instructions concluded and 12 the inmate was directed to begin speaking. The government’s 13 listed times, by contrast, reflected the entire length of the 14 recording, including the preliminary instructions. The court has 15 compared each recording to the times listed in the call log and 16 the government’s exhibits and each corresponds exactly in this 17 manner. There being no discrepancy, counsel were neither 18 deficient nor caused Smith prejudice by failing to raise the 19 issue. Smith is thus not entitled to relief on either Ground One 20 or Ground Four. 21 B. Grounds Two and Thirteen 22 In Ground Two, Smith alleges that his attorneys were 23 ineffective for not investigating (1) Randy Ponciano; and (2) 24 Robert Lopez Contreras. As to Lopez Contreras, Smith asserts, 25 counsel should have discovered various discrepancies and raised 26 them as a basis for excluding his testimony. In Ground Thirteen, 27 Smith asserts that the government committed prosecutorial 28 misconduct by allowing Lopez Contreras, an alleged impostor, to 1 testify. The court will consider Grounds Two and Thirteen 2 together as they significantly overlap. 3 i. Ponciano 4 Ponciano was a “source of information” in the investigation 5 into Smith’s criminal conduct. Smith asserts that he asked his 6 attorneys to obtain copies of Ponciano’s phone calls from 7 prison, Ponciano’s arrest and prison records, and Ponciano’s 8 statement to the DEA. But Smith does not explain what any of 9 this information would have shown or how it would have led to a 10 reasonable likelihood of a different result in his case. He has 11 not therefore demonstrated either prejudice or deficient 12 performance in this respect. 13 ii. Lopez Contreras 14 Smith asserts that the man who testified on the stand as 15 Lopez Contreras was not actually Lopez Contreras, pointing to 16 several indications of his alleged falsity: (1) the dates of 17 Lopez Contreras’ confidential source contract produced during 18 discovery is for a time period following his involvement in this 19 case; (2) Lopez Contreras testified that he had received about 20 $33,000 in compensation over his 16 years of cooperating but if 21 he had cooperated as frequently as he testified and received 22 even a fraction of what he did in this case, he would have 23 earned in excess of $90,000; (3) Lopez Contreras could not have 24 worked at Damonte Ranch since 2003 as he testified because 25 Damonte Ranch was a community development, not a ranch, and it 26 did not exist in 2003, and at any rate Lopez Contreras would 27 never have been hired with his criminal history; (4) Lopez 28 Contreras testified that his phone calls with Smith were in 1 Spanish when Smith does not speak Spanish; (5) the witness who 2 testified did not resemble a photo of Lopez Contreras shown at 3 trial; (6) Beard testified that Lopez Contreras had been 4 arrested on a meth charged in 2010 but no such charge appears on 5 his rap sheet; (7) his rap sheet shows Lopez Contreras had been 6 arrested and removed from the country several times, including 7 in Bakersfield, California in 2006, which contradicts his claim 8 he’d worked at Damonte Ranch since 2003; and (8) the government 9 represented that there was no evidence of Lopez Contreras’ 10 dishonesty or history of substance abuse problems when actually 11 Lopez Contreras had been arrested for meth in 2010 and there was 12 evidence of substance abuse in his rap sheet. (ECF No. 935 at 13 10-11; 52-55). 14 None of Smith’s arguments or purported facts, alone or in 15 combination, establishes that the witness who testified was not 16 in fact Lopez Contreras. Preliminarily, Smith does not provide 17 any of the discovery on which he bases his arguments, making it 18 impossible for the court to properly evaluate several components 19 of his claim. At any rate, even if Smith has accurately 20 represented the contents of the discovery, none of the evidence 21 or testimony he cites seriously calls into question the identity 22 of the witness who testified such that counsel was ineffective, 23 or the government committed misconduct, with respect to that 24 witness. Lopez Contreras cooperated with the DEA for many years, 25 including before and after the time of the events in this case, 26 so the presence in discovery of a cooperation contract for a 27 time after Smith’s criminal acts proves little. Smith’s 28 speculation as to how much money Lopez Contreras should have 1 received over the course of 16 years is not evidence. What is 2 also pure speculation is Smith’s assertion that Lopez Contreras 3 could not have found work with his rap sheet. Nor has Smith 4 established that Damonte Ranch was solely a planned residential 5 community and not a ranch on which Lopez Contreras could have 6 worked.1 The court did not understand Lopez Contreras’ testimony 7 to be that the phone call with Smith was in Spanish, and 8 regardless, the jury could hear for itself that it was not in 9 Spanish. (See ECF No. 830 (Tr. 50-51)). Changes in physical 10 appearance can and do take place over time, and the appearance 11 of one’s skin can also vary depending on sun exposure and 12 photographic lighting. Lopez Contreras’ arrest in California and 13 removal from the country in 2006 is not inconsistent with his 14 working at Damonte Ranch since 2003, particularly as he 15 testified that in at least one year he worked at the ranch for 16 less than the full year, (see id. at 71), and the dates of Lopez 17 Contreras’ removals quoted by Smith in his motion reflect 18 repeated reentries into the country, sometimes within weeks of 19 each other. Finally, even assuming the rap sheet erroneously 20 omitted a 2010 charge or arrest and even assuming the government 21 incorrectly represented that there was no evidence of dishonesty 22 or substance abuse, the court is not persuaded that either 23 factor leads to an inexorable -- or even probable -- conclusion 24 that the trial witness was not who he said he was, and Smith has 25 not otherwise established how such information, or lack thereof, 26 27 1 t hI en t re er ln ee vt a nr te s te ia mr ec h ps eu rg ig oe ds ,t s b ot th ha t a in r ef sa ic dt e nD ta im ao ln t ce o mR ma un nc ih t yw a as n, d i an 28 working ranch. See https://en.wikipedia.org/wiki/Damonte_Ranch (last accessed May 18, 2022). 1 caused him prejudice sufficient to support either an ineffective 2 assistance of counsel claim or a claim of prosecutorial 3 misconduct. 4 As such, even if counsel were deficient for failing to 5 raise these various issues with the court, there is no 6 reasonable likelihood that the court would have excluded Lopez 7 Contreras’ testimony even if they had. Smith has not therefore 8 established ineffective assistance of counsel and is not 9 entitled to relief on Ground Two of the motion. 10 For the same reasons, Smith has not established that the 11 prosecutor committed misconduct. “Due process protects 12 defendants against the knowing use of any false evidence by the 13 State, whether it be by document, testimony, or any other form 14 of admissible evidence.” Hayes v. Brown, 399 F.3d 972, 981 (9th 15 Cir. 2005). Smith has not established that Lopez Contreras’ 16 testimony was false. Accordingly, Ground Thirteen is likewise 17 without merit. 18 C. Grounds Three and Six 19 Smith asserts that the $1,500.00 wire transfer did not 20 relate to drug dealing but actually was for pornography and 21 stamps, the former of which is contraband in the prison. Smith 22 asserts that Jorge Murillo was willing to testify as much and 23 that proper investigation from his counsel would have revealed 24 that pornography from Rodriguez’s phone matched most of the 25 phone calls between Smith and Rodriguez. In Grounds Three and 26 Six, Smith asserts his attorneys were ineffective for failing to 27 investigate these assertions or present evidence supporting it 28 to the jury, including the testimony of Murillo. He asserts that 1 if these facts had been presented, he would not have been 2 convicted. 3 The government argues that Smith has provided no affidavit 4 or admissible evidence of what Murillo would have testified to, 5 but that even if he had, such evidence would have to be weighed 6 in the context of the other very strong evidence at trial, 7 including Smith’s thinly disguised phone calls with Rodriguez. 8 Smith replies that his claim is supported by his own letters to 9 his attorneys and his statements to the court before trial. 10 Smith’s statements to the court before trial were not 11 specific to Murillo; he stated only that counsel had not 12 subpoenaed any of thirteen witnesses he asked for. (ECF No. 830 13 (Tr. 17-18)). Further, Smith’s own letters, even if they had 14 been produced, would be self-serving and unreliable evidence. 15 Most importantly, Smith provides nothing from Murillo indicating 16 that he had been willing to testify or what he would have 17 testified to. Absent such evidence, Smith cannot establish 18 either that counsel was deficient or that his conduct prejudiced 19 Smith. 20 But finally, and most importantly, it is not reasonably 21 likely that a jury would have acquitted Smith on any count had 22 counsel investigated and/or Murillo testified as Smith claims he 23 would have. Whether prejudice resulted from “a duty to 24 investigate must be considered in light of the strength of the 25 government’s case.” See Rios v. Rocha, 299 F.3d 796, 809 (9th 26 Cir. 2002) (citation omitted)). The government’s case was 27 strong, and that Rodriguez, and thus Smith, were dealing drugs 28 was supported not only by Rodriguez’s own testimony and the 1 barely concealed conversations between Rodriguez and Smith, but 2 also by recordings between the confidential informant and 3 Rodriguez, which clearly involved drug dealing. Smith’s claim 4 that the $1,500.00 transfer was for pornography and stamps was 5 in this context implausible and not likely to be believed by a 6 reasonable jury. 7 Accordingly, Smith has not shown he is entitled to relief 8 on Ground Three or Ground Six of the petition. 9 D. Ground Five 10 In his fifth ground for relief, Smith alleges that counsel 11 rendered ineffective assistance by failing to renew his Rule 29 12 motion at the close of the defense, by not articulating the 13 original motion count by count, and by not asking the court to 14 explain its ruling. Smith argues that had his attorney rendered 15 effective assistance, the court would have seen there was no 16 evidence of money laundering. Finally, he argues that the Ninth 17 Circuit denied review because the motion was not renewed. 18 The government argues that this claim is not reviewable on 19 a § 2255 motion because it was raised on direct appeal. It 20 further argues that to the extent the claim is reviewable, Smith 21 cannot show prejudice. 22 As a preliminary matter, Smith raised on direct appeal the 23 underlying claim on which his ineffective assistance of counsel 24 claim is based, not the ineffective assistance of counsel claim 25 itself. It is not therefore procedurally barred. 26 The court agrees, however, that Smith cannot demonstrate 27 prejudice. The Ninth Circuit considered, and rejected, Smith’s 28 sufficiency-of-the-evidence claim as to his money laundering 1 conviction. While the court applied the plain error standard to 2 the unpreserved claim, (ECF No. 924 at 2-3), Smith has not 3 established a reasonable likelihood that the Ninth Circuit would 4 have ruled otherwise had it applied de novo review. See United 5 States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000) 6 (noting that the appellate court reviews denial of a Rule 29 7 motion based on insufficient evidence de novo). 8 Sufficiency of the evidence is a low standard to begin 9 with, making it difficult to conceive a different result even 10 under de novo review. See United States v. Vizcarra–Martinez, 66 11 F.3d 1006, 1010 (9th Cir. 1995) (“[I]t is difficult to imagine 12 just what consequences flow from our application of the two 13 different standards or to envision a case in which the result 14 would be different because of the application of one rather than 15 the other of the standards.”); Mahon v. United States, 2018 WL 16 8188212, at *59 (D. Ariz. Nov. 5, 2018), report and 17 recommendation adopted, 2019 WL 1556147 (D. Ariz. Apr. 10, 2019) 18 (“In substance, however, the courts have struggled to define a 19 practical effect to the higher ‘plain error’ standard, in light 20 of the already exacting standard for claims of insufficient 21 evidence.”). This is particularly so in view of the virtually 22 incontrovertible evidence of Smith’s guilt introduced at trial. 23 That evidence included several recorded phone calls during which 24 Smith gave Rodriguez a series of numbers that would allow him to 25 collect “15” from MoneyGram or Western Union, sent from Los 26 Angeles by Marisella Rivera, (Tr. Exs. 6A-8B), and several 27 2 Smith raised no other sufficiency of the evidence claim on 28 appeal and Smith’s Rule 29 claim applied only to the money laundering claim. 1 conversations in which Smith directed Rodriguez to sell Lopez 2 Contreras drugs. As previously discussed, Smith’s contention 3 that the wire transfer was for pornography and postage stamps is 4 implausible when considering all the evidence introduced at 5 trial. 6 For the same reason, counsel’s failure to preserve the 7 motion, to address the motion count-by-count, or to require the 8 court to explain its ruling was not deficient performance and 9 did not cause Smith prejudice. 10 Smith is not entitled to relief on Ground Five of the 11 motion. 12 E. Ground Seven 13 In Ground Seven, Smith asserts his attorney was ineffective 14 for failing to call witnesses in his favor who would have 15 testified that the only thing Smith sold in his institution was 16 porn, stamps and other store items. 17 Smith asserts that counsel should have called Jorge 18 Murillo. For the reasons explained supra, Smith has failed to 19 substantiate what Murillo’s testimony would have been and 20 therefore has not established a reasonable probability of a 21 different outcome had Murillo been called. 22 Smith also references thirteen witnesses he asked to be 23 called but who were not. There is no evidence as to what any 24 witness would have testified, nor is it even clear which 25 thirteen witnesses Smith alleges should have been called. Smith 26 therefore has failed to substantiate his claim with respect to 27 any of the other witnesses he asserts should have been called. 28 1 Smith has failed to establish that he is entitled to relief 2 on Ground Seven of the motion. 3 F. Ground Eight 4 In Ground Eight, Smith asserts that counsel was ineffective 5 because he denied Smith his right to testify on his own behalf. 6 While Smith waived his right to testify after a canvass by 7 the court, he argues that he was forced into that decision 8 because counsel chose to dispute that it was Smith on the phone 9 calls when in fact Smith wanted to admit that he made the calls. 10 Counsel also failed to provide Smith with a list of questions he 11 would ask if Smith testified, further deterring Smith from 12 exercising his constitutional right to testify.3 13 Counsel disputed that it was Smith on the calls twice: once 14 during the Rule 29 motion at the close of the government’s case 15 and once during closing arguments. The first time was outside 16 the presence of the jury and the second time was after Smith had 17 already waived his right to testify. In neither case could 18 counsel’s strategic decision reasonably have affected Smith’s 19 decision to testify. Smith therefore has not established 20 prejudice. 21 The assertion that Smith could not testify because counsel 22 failed to provide him with questions in advance is conclusory 23 and also fails to establish any prejudice. 24 25 26 3 In reply, for the first time, Smith argues that counsel’s questions to witnesses – specifically, asking them whether they 27 knew Smith made the phone calls – also precluded him from testifying. The court will not consider this argument raised for 28 the first time in the reply. 1 Finally, counsel made the strategic decision to defend 2 Smith by casting doubt on whether it was Smith on the phone 3 calls. This was a reasonable strategic decision in view of the 4 fact the phone calls quite clearly involved drug dealing and the 5 implausibility of Smith’s contention that he was, instead, 6 orchestrating the sale of pornography. Smith still could have 7 testified, if he had so desired, even after counsel made these 8 strategic arguments. Counsel’s decision did not deprive Smith of 9 his right to testify. 10 In short, Smith has not established either deficient 11 performance or prejudice and therefore has not shown he is 12 entitled to relief on Ground Eight. 13 G. Ground Nine 14 Ground Nine asserts that counsel was ineffective for 15 failing to object to Smith being held accountable as a principal 16 because, Smith asserts, the indictment alleged only aiding and 17 abetting. Smith argues that no aiding and abetting jury 18 instruction was given as to Counts 2 and 3, suggesting that he 19 thus should not have been convicted under either count.4 20 Counsel was not ineffective for failing to raise what would 21 have been a meritless argument. United States v. Moore, 921 F.2d 22 207, 210 (9th Cir. 1990). Principal liability and aiding and 23 abetting liability are alternative theories of liability, and 24 the third superseding indictment alleged both theories. (See ECF 25 26 4 a rT gh ue m eng to ,v er fn om ce un st i’ ns g r ae ss po in ts e d ot eo s G or no un wd h etN hi en re m ai is dc io nn gs t ar nu de s abS em ti tt ih n’ gs 27 need to be alleged in an indictment. Smith’s reply responds to this argument. Because that is not how the court reads Smith’s 28 claim, the court will not delve into the arguments raised in the opposition and reply as to Ground Nine. 1 No. 660). Document #661 is not the indictment. It therefore 2 would have been frivolous for counsel to argue that principal 3 liability had not been alleged. For that reason, Smith has 4 demonstrated neither deficient performance nor prejudice, and he 5 is not entitled to relief on Ground Nine of the motion. 6 H. Ground Ten 7 In Ground Ten, Smith asserts his attorney was ineffective 8 for failing to move for dismissal on the grounds of lack of 9 jurisdiction. Although the claim is difficult to understand, 10 Smith appears to allege that the third superseding indictment 11 does not charge any federal crimes.5 12 This claim is plainly meritless. Each count in the 13 indictment charges a violation of federal law. The court 14 therefore had jurisdiction, and a motion to dismiss for lack of 15 jurisdiction would have been denied. Smith’s counsel was neither 16 deficient nor caused Smith prejudice by failing to make such a 17 motion. Smith is not entitled to relief on Ground Ten. 18 I. Ground Eleven 19 In Ground Eleven, Smith asserts a claim of judicial bias 20 based on statements he alleges the court made when he sought 21 appointment of new counsel in July 2016 and April 2018. 22 Smith asserts that when he asked for new counsel in July 23 2016, the court responded: “I know how you people play the 24 system” and that Smith also said, “I have never fired anyone, 25 let alone a [sic] attorney, in my life.” The transcript of the 26 27 5 Smith’s reply delves into several additional arguments that are not part of his original claim and do not clearly connect to the 28 original claim. The court will not consider these contentions raised for the first time in the reply. 1 July 2016 hearing does not include either statement, and instead 2 reflets the following exchange: 3 And at this point Ms. Field-Lang has reviewed all of the material in this case at substantial cost. You 4 have court-appointed counsel, and that’s constitutionally provided for, and the Court respects 5 that. On the other hand, the Court doesn’t like to waste money and have somebody, you know, fully develop 6 and be prepared to go to trial on a case, and then at the last second ask to be removed on the basis that 7 the defendant simply isn’t happy with counsel’s performance or whatever the other reason may be. And, 8 frankly, there's some fairly substantial Ninth Circuit law that does not permit withdrawal of counsel at this 9 late date, and certainly this is a very late date. 10 . . . . 11 My major concern is that, number one, everybody had scheduled the trial for next week. Number two, your 12 counsel, as I've indicated already, has devoted considerable time to this case, and from an economic 13 standpoint, it simply means that another attorney is going to have to work it up. I can almost tell you 14 without any reservation whatsoever that if I do go ahead and appoint new counsel for you, that will be 15 the last time I do it except for extraordinary circumstances. At that point I'll pretty much 16 determine probably that you're playing the system, and I've been around on the bench long enough to see it 17 happen many times. So after the first change of attorneys I get much more concerned about who's really 18 creating the problem, and you may just end up representing yourself in the case if we keep going 19 down that path, and maybe that's what you want to do right now, I don't know, I'll find out in a few 20 minutes. 21 (ECF No. 844 (Tr. 3-5)). 22 Recognizing that neither of the statements Smith alleges 23 were made appear anywhere in the official transcript, Smith 24 contends the transcript was altered. Smith’s assertion is 25 without merit. The audio recording of the July 16, 2016, hearing 26 is consistent with the official transcript, and thus there is no 27 basis to the claim the transcript was altered. 28 1 Smith also alleges that during an April 11, 2018, hearing 2 on yet another motion to withdraw as counsel, the court 3 expressed that the case was costing a lot of money. As before, 4 Smith recognizes that this statement does not appear in the 5 official transcript but asserts the transcript must have been 6 altered. (See ECF No. 845). Again, the audio recording of the 7 April 11, 2018, hearing is consistent with the official 8 transcript, and Smith’s factual allegation therefore lacks 9 merit. 10 Considering the statements that were actually made, which 11 appear on the official record, the court does not find evidence 12 of judicial bias that required disqualification or that violated 13 Smith’s constitutional rights. 14 [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the . 15 . . proceedings[] do not constitute a basis for a bias or partiality motion unless they display a deep-seated 16 favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course 17 of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, 18 ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion 19 that derives from an extrajudicial source; and they will do so if they reveal such a high degree of 20 favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, 21 however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are 22 within the bounds of what imperfect men and women, even after having been confirmed as federal judges, 23 sometimes display. A judge’s ordinary efforts at courtroom administration—even a stern and short- 24 tempered judge’s ordinary efforts at courtroom administration—remain immune. 25 26 Liteky v. United States, 510 U.S. 540, 555–56 (1994). None of 27 the court’s statements reflect a high degree of antagonism that 28 would make a fair ruling impossible. As the court previously 1 held when the defendant moved for recusal just before opening 2 statements: 3 [T]he Court has been quite fair in terms of your requests for other counsel or your request of counsel 4 to be discharged from representation of you. Cost has never been a factor, in my mind, in terms of whether 5 or not you should or should not have representation, whether or not you should be appointed additional 6 counsel, or anything of that nature. The Court is well aware of the circumstances that you have in connection 7 with appropriate representation. And the comments that I made -- and I would have go back and look at the 8 transcript -- are related to comments that I would make from time to time in other cases where there have 9 been a number of attorneys involved in the case. At some point in time, the Court is concerned, not about 10 the economic part of it, but concerned about whether or not the defendant is able, in any of those cases -- 11 and perhaps to some degree in your case -- is able to be able to get along with counsel well enough for 12 counsel, in the future, if there is a new attorney appointed, to be able to fairly represent the 13 defendant. And at some point, a defendant may have to represent himself if he’s going to keep going through 14 attorneys. So to the degree that’s a motion to disqualify the Court, it’s denied. 15 16 (ECF No. 830 (Tr. 18-19)). While the court did at one point 17 express concern about the economic costs of replacing counsel, 18 it was not of the costs associated with a single change of 19 counsel but of Smith’s repeated replacements of counsel just 20 before trial, which suggested that perhaps Smith would not be 21 able to work with any attorney. Such concerns are not evidence 22 of judicial bias but instead were the court’s caution to Smith 23 that he would not be entitled to indefinite replacements of 24 counsel. Smith’s assertion that he was treated differently than 25 other defendants is conclusory and without a factual basis, and 26 he has not identified any similarly situated defendants who were 27 treated any differently than he was. 28 1 As it did before trial began, the court finds no evidence 2 of judicial bias that violated Smith’s constitutional rights. 3 Accordingly, Smith has not established he is entitled to relief 4 on Ground Eleven. 5 J. Ground Twelve 6 In Ground Twelve, Smith asserts a claim based on alleged 7 newly discovered evidence suggesting that Rodriguez received 8 more benefits from the government than he admitted at trial. The 9 government argues that Smith’s claim is not cognizable on habeas 10 absent a constitutional violation, and to the extent the court 11 were to consider it a motion for a new trial, the motion must be 12 denied.6 13 Citing several affidavits purportedly from Rodriguez’s 14 fellow inmates, Smith contends that Rodriguez and Beard had an 15 overly friendly relationship with frequent interactions leading 16 up to the trial, and that Rodriguez received benefits that he 17 did not disclose to the jury, including: (1) Beard’s phone 18 number and a promise that Beard would help Rodriguez’s 19 girlfriend; (2) Beard and the government’s help with Rodriguez’s 20 detention; and (3) Beard’s testimony on Rodriguez’s behalf at 21 sentencing. Several of the inmate affidavits also state that 22 Rodriguez and Beard were seen visiting nearly daily, sometimes 23 for hours, and that Rodriguez received preferential treatment in 24 the jail. Finally, inmate Michael Jackson states that June 2017, 25 Rodriguez asked him if it was snitching to tell the authorities 26 6 Again here, Smith’s reply delves into several additional 27 arguments that are not part of his original claim and do not clearly connect to the original claim. The court will not 28 consider these contentions raised for the first time in the reply. 1 something that was not true if it would get him a better deal. 2 (ECF No. 935 at 46-48). 3 A claim alleging newly discovered evidence does not, 4 standing on its own, assert a constitutional violation amenable 5 to § 2255 relief. See United States v. Berry, 624 F.3d 1031, 6 1038 (9th Cir. 2010). 7 To the extent Smith is alleging actual innocence, the 8 Supreme Court has not yet recognized a freestanding claim of 9 actual innocence for which habeas relief may be granted. See, 10 e.g., McQuiggin v. Perkins, 569 U.S. 383 (2013). But “[a]ssuming 11 cognizability, the requisite showing on such a claim is 12 ‘extraordinarily high’ and must be ‘truly persuasive.’” White v. 13 Russell, 856 Fed. App’x 130, 131 (9th Cir. 2021) (unpublished 14 opinion) (citing Herrera v. Collins, 506 U.S. 390 (1993)), cert. 15 denied sub nom. White v. Garrett, 142 S. Ct. 1170 (2022). “At a 16 minimum, ‘to be entitled to relief, a habeas petitioner 17 asserting a freestanding actual innocence claim must go beyond 18 demonstrating doubt about his guilt, and must affirmatively 19 prove that he is probably innocent.’” Id. 20 The evidence offered by Smith falls far short of this 21 demanding standard, particularly in light of the compelling 22 evidence of his guilt introduced at trial. The evidence goes 23 only to Rodriguez’s credibility, which was challenged by defense 24 counsel at trial. This new evidence does not significantly 25 undermine Rodriguez’s credibility sufficient to persuade the 26 court that Smith is probably innocent. Therefore, to the extent 27 Smith asserts a claim of actual innocence, the claim is without 28 merit. 1 For the same reason, if Smith is seeking a new trial, that 2 motion would also be denied. A defendant seeking a new trial 3 must show, among other things, that “the evidence is not (a) 4 cumulative or (b) merely impeaching” and that “the evidence 5 indicates the defendant would probably be acquitted in a new 6 trial.” United States v. Wilkes, 744 F.3d 1101, 1110 (9th Cir. 7 2014) (citing United States v. Harrington, 410 F.3d 598, 601 8 (9th Cir. 2005)). Not only does the evidence on which Smith 9 relies bear primarily on Rodriguez’s credibility, much of the 10 evidence was in fact presented at trial. Defense counsel 11 highlighted the fact that Rodriguez did not mention Smith in his 12 first proffers, along with the evidence that Beard and Rodriguez 13 had a friendly relationship and frequently met. (ECF No. 830 14 (Tr. 39-40); ECF No. 831 (Tr. 157-61, 230-32). And as just 15 discussed, Smith has not established that he would probably be 16 acquitted in a new trial if this evidence were presented. 17 Accordingly, Smith has not met the requirements for a new trial, 18 and any such motion is denied. 19 Smith has not established he is entitled to relief on 20 Ground Twelve. 21 IV. Motion for Evidentiary Hearing 22 The court is not required to conduct a hearing on a § 2255 23 motion if “the motion and the files and records of the case 24 conclusively show that the prisoner is entitled to no relief.” 25 28 U.S.C. § 2255(b). Because the motion and files and records of 26 this case conclusively show that Smith is not entitled to 27 relief, his request for an evidentiary hearing is denied. 28 1 V. Certificate of Appealability 2 In order to proceed with an appeal, Smith must receive a 3 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. 4 App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 5 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 6 F.3d 550, 551-52 (9th Cir. 2001). Generally, a defendant must 7 make “a substantial showing of the denial of a constitutional 8 right” to warrant a certificate of appealability. Allen, 435 9 F.3d at 951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 10 473, 483-84 (2000). “The petitioner must demonstrate that 11 reasonable jurists would find the district court’s assessment of 12 the constitutional claims debatable or wrong.” Allen, 435 F.3d 13 at 951 (quoting Slack, 529 U.S. at 484). In order to meet this 14 threshold inquiry, Smith has the burden of demonstrating that 15 the issues are debatable among jurists of reason; that a court 16 could resolve the issues differently; or that the questions are 17 adequate to deserve encouragement to proceed further. Id. 18 The court has considered the issues raised by Smith, with 19 respect to whether they satisfy the standard for issuance of a 20 certificate of appealability, and determines that none meet that 21 standard. Accordingly, Smith will be denied a certificate of 22 appealability. 23 / 24 / 25 / 26 / 27 / 28 / 1|| VI. Conclusion 2 In accordance with the foregoing, IT IS THEREFORE ORDERED that Smith’s motion to vacate, correct or set aside (ECF No. 4|| 935) is DENIED. 5 IT IS FURTHER ORDERED that Smith is DENIED a certificate of 6|| appealability. 7 The Clerk of Court shall enter final judgment and close 8|| this case. 9 IT IS SO ORDERED. 10 DATED: This 6th day of June, 2022. 11 bhuraul’ 2 ft 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24