UNITED STATES OF AMERICA, Plаintiff, v. CRAIG SHULTS, Defendant.
Case No.: 1:17-cr-00136 JLT SKO
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 3, 2024
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Docs. 154, 175)
I. Background
On May 25, 2017, Shults was indicted for retaliating against a federal official in violation of
A. Wire fraud case
On April 18, 2012, Shults was indicted in the Central District of California on multiple counts of wire fraud, in violation of
On February 19, 2014, a jury convicted Shults on all seven counts of wire fraud with which he was charged in the United States District Court for the Central District of California. (Shults, 8:12-cr-00090-JLS, Doc. 357.) At sentencing in that case, Shults argued that the correct advisory sentencing guideline range called for a term of imprisonment between 57 and 71 months and that a “substantial variance” below that imprisonment range was appropriate. (Id., Doc. 463 at 3.) On November 10, 2014, Shults was sentenced to a 90-month term of imprisonment and ordered to pay $2,000,000 in restitution. (Id. at Doc. 503.) Shults appealed his wire fraud conviction. (See United States v. Craig Shults, No. 14-50515 (9th Cir.), Doc. 1.) On September 16, 2015, Shults moved for his release pending appeal, which Judge Guilford denied. (Shults, 8:12-cr-00090-JLS, at Docs. 644, 648.)
While Shults was detained awaiting trial on the wire fraud charges, he allegedly made threats against Judge Guilford to inmate Carlos Galeana. (See Doc. 124 at 15.) According to Galeana, Shults was angry that Judge Guilford did not release him on bond and stated he was going to “horse F” Guilford and “bury” him. (Id. at 15:12-14.) Galeana later reported these threats. (Id. at 16:19-25.)
B. Retaliation case
By May 2016, Shults was incarcerated at Taft Correctional Institution serving his 90-month sentence on the wire fraud charges. At Taft, inmate and later trial witness, William Knox, heard Shults threaten to assault Judge Guilford in retaliation for the judge‘s rulings during the prosecution of Shults’ wire fraud case. FBI Agents met with Knox on various occasions beginning in September 2016, during which Knox reported Shults’ statements about Judge Guilford. (See Doc. 105 at 4-5 ¶¶ 8-15.) Shults reportedly offered to Knox that he would take care of both of their sentencing judges, if Knox “would provide the funds.” (Doc. 105 at 4-5 ¶ 8.)
In early 2017, after officials at Taft became aware of the threats made by Shults that underly the charges brought against him in this case, he was transferred to Lompoc Federal Correctional Institution. (Doc. 105 at 6 ¶ 20.) There, Shults met another inmate, Pavel Valkovich. (Id., Doc. 123 at 165-66.) According to Valkovich, Shults repeatedly offered to pay him to arrange for the murder of Judge Guilford, as well as the murder of someone at Taft who had informed on Shults. (Id. at 166-85.) The presentence report indicates that Shults also offered to pay Valkovich to kill the prosecutor in Shults’ wire fraud case. (Doc. 105 at 6-7 ¶¶ 21-23.) Shults offered tо pay him $100,000 for each “hit.” (Id. ¶¶ 21-25.) Valkovich reported Shults’ offers to prison officials after Valkovich was transferred from Lompoc to Taft. (See Doc. 123 at 183-85.)
On May 25, 2017, Shults was indicted for retaliating against a federal official by threat in violation of
On November 8, 2021, Shults filed a timely
After being granted two additional extensions, (see Docs. 168, 169, 172, 174), Shults filed an amended § 2255 motion and Memorandum of Points and Authorities on March 3, 2022.1 (Docs. 175, 175-1.) Shults alleges ineffective assistance of counsel based on the following four grounds: (1) counsel did not call him to testify; (2) counsel failed to call two witnesses; (3) counsel failed to properly question a witness; and (4) counsel failed to obtain and call an expert witness. (Id.)2
On June 13, 2022, the Court ordered the government to file a response within 60 days. (Doc. 178.) By stipulation, the Court continued the government’s opposition deadline to September 8, 2022, and Shults’ reply deadline to November 11, 2022. (Docs. 180, 188, 189.) The government filed its opposition on September 8, 2022, to which Shults replied on November 14, 2022. (Docs. 187, 191.)
II. Legal Standards
A. 28 U.S.C. § 2255
Title 28 U.S.C. § 2255 allows a federal prisoner to move “to vacate, set aside or correct the sentence” on “the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
Generally, only a narrow range of claims fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). To warrant relief, a movant must demonstrate the existence of an error of constitutional magnitude that had a substantial and injurious effect or influence on the guilty plea or the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht’s harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.“). The alleged error of law must be “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980) (“We also concur in the dismissal of the allegations … as vague, conclusory and without any facts alleged in support of the claim.“); Neighbors v. United States, 457 F.2d 795, 795 (9th Cir. 1972) (affirming denial of § 2255 motion where allegations regarding ineffective assistance of counsel were entirely conclusory and without support in the record).
B. Ineffective assistance of counsel
The
“Deficient performance” is representation that “fell below an objective standard of reasonableness.” Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (citing Strickland, 466 U.S. at 688). The movant must identify counsel’s alleged acts or omissions that were not the result of reasonable, professional judgment considering the circumstances. See Strickland, 466 U.S. at 690; see also United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (petitioner “bears the burden of establishing both components of an effectiveness inquiry” under Strickland). There is a strong presumption that counsel’s performance fell within the wide range of professional assistance. See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689); Bloom v. Calderon, 132 F.3d 1267, 1270-71 (9th Cir. 1997). Judicial scrutiny of counsel’s performance is highly deferential, see Strickland, 466 U.S. at 677-78, and “surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
III. Discussion and Analysis
Shults claims he received ineffective assistance of counsel at trial because his counsel: (1) did not allow Shults to testify; (2) failed to call two witnesses; (3) failed to properly question a witness; and (4) failed to obtain and call an expert witness. (Doc. 175 at 4-5, 7-8.) The Court addresses each ground in turn.
A. Counsel’s failure to call Shults as a witness
Shults contends he was denied his right to effective assistance because his counsel failed to call him as a witness, despite Shults indicating before and during trial that he wanted to testify.3 (Doc. 175 at 4.)
1. Shults waived his right to testify
A criminal defendant has a constitutional right to testify on his own behalf, as secured by the
Shults’ only contention with respect to this claim is that he told his attorney he wanted to testify but he was “not allowed to” or his requests were “ignored.” (Doc. 175 at 4; Doc. 175-1 at 8.) There is no indication in the trial record that Shults made any attempt to express his disagreement with counsels’ decision not to call him as a witness, and Shults does not direct the Court to any evidence otherwise. In fact, Shults does not challenge—and thereby concedes—that he was advised by counsel of his right to testify, that he knew whether to testify was solely his decision to make, and that he was silent on the issue at trial.
Moreover, the record supports a finding of waiver. First, it demonstrates that Shults was aware of his rights, counsel actively engaged in discussions with Shults, and Shults understood that the decision to testify was his to make. For еxample, on the third day of trial, counsel represented to the Court that Shults’ constitutional rights had been had previously discussed. (See Doc. 125 at 4:2-7 [noting for the record that Shults’ ongoing appeal “puts his
THE COURT: All right. Let the record reflect the jury has left. How many more witnesses do you have?
MS. SNIDER: Your Honor, if memory serves, we have five witnesses for tomorrow. And then if Mr. Shults chooses to testify, he would testify tomorrow as well.
THE COURT: You will have a decision by tomorrow morning?
MR. CARBAJAL: We have got a list of seven.
MS. SNIDER: I’m sorry. Seven witnesses that are scheduled to come tomorrow, and then if Mr. Shults chooses to testify, and we should have an answer tomorrow morning.
THE COURT: Okay. The reason I’m asking that question is I don’t want there to have to be a break for you to go discuss it with yоur client. That needs to be done.
MR. LEE: We have asked the Marshals to take Mr. Shults down to the lockup now so we can start the conversation.
(Id. at 219:13-25, 220:1-5 [emphasis added].) The next morning, counsel informed the Court that they had made a “preliminary decision” as to Shults testifying but wanted “to see the rest of the witnesses before [making] a final decision.” (Doc. 126 at 3:14-18.) When asked by the Court what the preliminary decision was, counsel replied, “We are leaning against not.” (Id. at 3:19-20.) Shults was present for this exchange and said nothing. (See id. at 3:5-6, 3:21-23.)
Additionally, Shults was not ignorant of his constitutional rights or criminal trial procedure. He was present at two hearings prior to the trial in this matter, where his right to testify at trial was discussed at length, which pertained to the issues presented where Shults exercised his right to remain silent in his underlying case but wished to testify in the instant matter. (See, e.g., Doc. 43 at 10:14-15 [counsel stating that Shults “has the right, obviously, to testify in his own defense at this particular trial.“]; id. at 11:6-9 [counsel explaining that if Shults received a new trial in the underlying case, it would “put[] his constitutional right in this case to take the stand in his own defense at odds with his right to remain silent in the other case“]; Doc.
Finally, Shults does not direct the Court to any evidence in the record to support his position, and he does not proffer any facts or otherwise acknowledge the government’s thorough compilation of evidence refuting his claims. (See Docs. 175, 191.) Shults “cannot in hindsight claim he was deprived of his right to testify . . . without any evidence in the record to support his contention.” Gudino v. Madden, 2023 WL 3063826, at *24 (C.D. Cal. Feb. 27, 2023), report and recommendation adopted, 2023 WL 3059860 (C.D. Cal. Apr. 24, 2023); see also Hawley v. McEwen, 2015 WL 5440677, at *10 (N.D. Cal. Sept. 15, 2015) (explaining that where the trial record is “bereft of аny evidence even hinting” a movant’s efforts to fire counsel, address the Court, or otherwise express a desire to testify, and the movant remains silent in the face of counsel’s decision not to call him to testify, his claim fails). In sum, the record demonstrates that Shults knew he had a right to testify and that it was his decision whether he would do so, yet he was silent when counsel announced the decision not to call him as a witness. Therefore, Shults knowingly waived his right to testify. Edwards, 897 F.2d at 447; Nohara, 3 F.3d at 1244. Additionally, by waiving that right, Shults also waived any claim of ineffective assistance of counsel. See Nohara, 3 F.3d at 1243 (citing Edwards, 897 F.2d at 446-47, in finding movant
2. Shults fails to demonstrate prejudice
Even assuming the attorneys’ conduct in not calling the defendant to testify constitutes deficient performance, Shults has not shown he suffered prejudiced as a result. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.“). “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. Thus, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Id. at 692. To demonstrate prejudice, the movant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693). A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Leonti, 326 F.3d at 1120.
Shults asserts he was prejudiced by counsel’s error because “there is a reasonable probability the outcome of the trial would have been different had [he] testified.” Shults contends
First, the jury heard testimony and argument regarding Shults’ expansive book collection, affinity for reading, and tendency to take on a book’s character or otherwise take on others’ stories. (See, e.g., Doc. 125 at 60:18-19; 61:18-20, 62:1-14; 64:19-23; 65:16-20; Doc. 126 at 52:25, 53:1-4; 100:7-9; 103:22-23; 105:14-16.) Thus, Shults’ proposed testimony would have duplicated that already presented at trial. See Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009) (no showing of prejudice where proposed testimony was “most likely” cumulative of evidence already presented); see also Karkehabadi, 2019 WL 3849175, at *11 (“Petitioner’s testimony would be duplicative of other evidence presented at trial and consistent with the prosecution’s case as presented to the jury. It remains unclear how Petitioner’s repetition of this already admitted evidence through his personal testimony would have had any effect on the outcome of the trial.“); United States v. Schaflander, 743 F.2d 714, 718 (9th Cir. 1984) (no
Recently, the Ninth Circuit noted that where prior decisions have “found the omission of cumulative evidence prejudicial, the evidence has been so persuasive that it would have meaningfully altered the jury’s view of the case.” Staten v. Davis, 962 F.3d 487, 498 (9th Cir. 2020) (citing cases). The Court found no showing of prejudice because although the omitted testimony could have “bolstered the existing defense theory, … it was not a new theory that the jury never heard, … and would not have significantly changed the nature of the defense” or “changed the light in which the jury viewed” the prosecution’s evidence. Id. at 498-99. In any event, Shults fails to еxplain how providing the titles of various books from which his statements came would be sufficient to undermine confidence in the trial’s outcome. Strickland, 466 U.S. at 694; Leonti, 326 F.3d at 1120.
Second, Shults’ counsel advanced the theory that Shults had a propensity to embellish and take on other people’s stories, that inmates who cooperate for the government are potentially incredible as they will do nearly anything for a sentence reduction, and that, consequently, Knox set Shults up in exchange for a benefit. The jury was aware of this theory, as it was testified to by various witnesses and argued by both counsel and the government. (See, e.g., Doc. 124 at 163:22-25, 164:1-25, 165:1-7; Doc. 125 at 66:4-8, 68:17-25, 69:1-9, 134:25, 135:1-2; Doc. 126 at 84:3-6, 98:7-21, 101:5-7, 101:12-19, 109:9-12, 111:16-25, 112:1-3, 113:3-6, 113:14-25, 114:1-2.) This weighs against a finding of prejudice. See United States v. Ailemen, 710 F. Supp. 2d 960, 970 (N.D. Cal. 2008), aff’d, 473 F. App’x 754 (9th Cir. 2012) (finding no reasonable probability of a different outcome where counsel, albeit not petitioner, advanced the arguments petitioner wished to make and thus, the jury was aware of petitioner’s theory and could weigh the theory as rational fact finders).
Finally, Shults does not explain how attempting to bolster his credibility by testifying would have had a substantial effect on the trial’s outcome in light of the theory under which counsel proceeded. Ramirez, 2012 WL 2050430, at *11. In other words, Shults’ counsel made a significant effort to demonstrate that Shults had a tendency to be untruthful, yet Shults maintains
3. Shults’ right to autonomy claim fails
Shults also asserts his counsel’s failure to call him as a witness violated his
a. Procedural default
The government contends Shults procedurally defaulted on his right to autonomy claim. (Doc. 187 at 29-31.) Ineffective assistance of counsel claims may be raised for the first time on collateral review, Massaro, 538 U.S. at 504, but a § 2255 movant procedurally defaults on claims he failed to raise on direct appeal unless he can show cause and prejudice or actual innocence. United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). Shults does not challenge that he failed to raise the issue of structural error on direct appeal. However, as previously mentioned, it is not clear whether he brings the claim separately from his ineffective assistance of counsel claim. (See Doc. 175-1 at 7-9 [asserting the
To the extent Shults brings a separate claim for violation of his constitutional right to autonomy, he fails to show prejudice, as discussed supra, and does not argue actual innocence. In fact, he fails to address the issue of procedural default entirely. On the other hand, the case law relied on by Shults and discussed by the government suggest that Shults raises his autonomy claim via an ineffective assistance of сounsel claim as opposed to a distinct claim that would require a showing of cause and prejudice or actual innocence. That Shults does not assert otherwise or offer any argument showing cause and prejudice or actual innocence sufficient to overcome default, also supports this finding. To find otherwise would suggest that Shults intended to bring a separate autonomy claim based on structural error despite no attempt to avoid procedural default at the outset. Thus, the Court will, for purposes of this discussion, presume Shults did not procedurally default on his autonomy claim because he intended to assert it by way of his ineffective assistance claim.
Notwithstanding, Shults’ claim fails, for when a claim of structural error is first asserted in the context of an ineffective assistance of counsel claim on collateral review, the defendant must still prove prejudice under Strickland.
b. Structural error
Shults argues that the violation of his right to autonomy was “structural error”5 and Strickland does not apply, that is, prejudice is presumed. (See Doc. 175 at 4, Doc. 175-1 at 8-9.) However, even assuming such a violation amounts to structural error, Strickland is the standard under which courts are to consider such claims. See Beatriz Govea v. United States, 2019 WL 1491958, at *3 (S.D. Cal. Apr. 4, 2019) (citing Weaver v. Massachusetts, 582 U.S. 286, 298-301, 137 S. Ct. 1899, 1910-11 (2017)).
In advancing his position, Shults relies on McCoy v. Louisiana, 138 S. Ct. 1500 (2018) and Williams v. United States, 2018 WL 4656231 (D. Conn. Sept. 27, 2018). (See Doc. 175-1 at 7-9.) In McCoy, despite petitioner McCoy’s clear and adamаnt objections, his trial counsel conceded to the jury that McCoy had committed triple homicide, instead focusing the defense on McCoy lacking the specific intent necessary for a first-degree murder conviction. 138 S. Ct. at 1503. The jury found McCoy guilty on all counts. Id. Upon moving for a new trial, the Louisiana Supreme Court affirmed the trial court’s ruling that counsel had the authority to concede guilt despite McCoy’s objections. Id. The United States Supreme Court granted certiorari and reversed, holding that even when such a decision is made based on a reasonable assessment that it would offer a defendant the best chance of avoiding the death penalty, the
Notably, the Court distinguished its earlier decision in Florida v. Nixon, 543 U.S. 175 (2004), where the petitioner “‘was generally unresponsive’” during discussions of trial strategy, and “‘never verbally approved or protested’ counsel’s proposed approach.” See id. at 1505, 1509 (quoting Nixon). In Nixon, the Court concluded that in such circumstances, counsel is “not automatically barred” from conceding guilt and that the Florida Supreme Court erred in presuming both deficient performance and prejudice. 543 U.S. at 178-79. “Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.” Id. at 192. The facts at hand are more akin to Nixon. As previously discussed, there is no indication
Turning to Williams, Shults’ reliance is equally misplaced. There, the Connecticut district court explicitly rejected the argument Shults advances. 2018 WL 4656231, at **3-5 (petitioner asserting the violation of right to testify was structural error requiring reversal without a showing of prejudice). The petitioner analogized his right to testify with the right to decide whether to concede guilt as recognized in McCoy, аrguing that his “right to testify similarly implicates a defendant’s right to decide the way in which he will defend himself.” Id., at *4. While the court agreed that the violation of a defendant’s right to testify was likely a structural error, it noted that neither the Supreme Court6 nor the Second Circuit had deemed it as such, and in fact, binding Second Circuit precedent directs courts to consider such claims under Strickland. Id., at *5.7
As recognized in Williams, the Court does not conclusively reject that the violation of Shults’ right to testify was structural error. Rather, “binding Ninth Circuit authority applies the Strickland standard to a claim that an attorney provided ineffective assistance by dissuading a defendant from testifying.” Karkehabadi, 2019 WL 3849175, at *9 (citing Medley v. Runnels, 506 F.3d 857, 861 (9th Cir. 2007)); see also Carter v. Davis, 946 F.3d 489, 509-12 (9th Cir. 2019) (applying Strickland post-Weaver in analyzing § 2254 denial where petitioner claimed he was denied right to testify). Other district courts within the Ninth Circuit have followed suit. For example, the petitioner in Riedel v. McDonald, 2018 WL 5816238 (C.D. Cal. Sept. 24, 2018), argued his counsel was ineffective in advising him not to testify, which resulted in a structural error requiring reversal irrespective of prejudice. Id., at *6. Even assuming that the denial of the right to testify constitutes structural error, the court applied Strickland, making clear that “there is no controlling authority standing for the proposition that prejudice is presumed” where a petitioner claims ineffective assistance of counsel by advising against testifying. See id., at **7-9.
Similarly, though the court’s reasoning in United States v. Smith, 2020 WL 1666637 (E.D. Wash. Apr. 3, 2020), differed from that in Riedel, it reached the same conclusion. This is noteworthy because Shults’ argument fails under either case. In Smith, the petitioner did not testify and subsequently claimed his counsel violated his right to autonomy. Id., at *2. Because the petitioner failed to direct the court to “a single case that incorporates [the right to present a defense] into McCoy’s autonomy analysis,” the alleged error was reviewed under Strickland. Id., at *6; see also Dickinson v. Shinn, 2020 WL 587850, at *8 (D. Ariz. Feb. 6, 2020), aff’d, 2 F.4th 851 (9th Cir. 2021) (holding that though Weaver confined its holding to public trial violations, a showing of prejudice was still required where petitioner raised, for the first time on collateral review, an ineffective assistance claim of structural error); McKay-Erskine v. Uttecht, 2019 WL 1505933, at *1 (W.D. Wash. Apr. 5, 2019) (finding state court’s denial of § 2254 petition not
Shults directs the Court to no legal authority standing for the proposition that such a violation is structural error or that such an error, first raised on collateral review by way of an ineffective assistance claim, is exempt from the Strickland analysis. Thus, the Court follows this Circuit’s precedent in requiring the application of Strickland. In so doing, as established supra, Shults fails to demonstrate prejudice under Strickland and accordingly, his right to autonomy claim also fails.
B. Grounds Two, Three, and Four: Failure to call additional witnesses and failure to properly question a witness
Shults’ remaining grounds for relief pertain to his counsel’s ineffective assistance in questioning witnesses. (See Doc. 175-1 at 9-10.) First, Shults claims his counsel “did not call Victor Torrez (spelling unsure) and another inmate from the Taft prison.” (Id. at 9.) He asserts these inmates would have testified “about how Bill Knox told them that he was trying to set up Shults so he could obtain a sentence reduction under
Similarly, he asserts his counsel failed to “properly question” witness Anwar Assan8
Finally, Shults claims his counsel was ineffective because he failed to obtain and call an expert witness familiar with prison administration. (Doc. 175-1 at 10.) Specifically, he asserts his counsel “could have called Joe Gunja, a former BOP Warden and Regional Director who would have testified about how prison inmates will oftentimes falsely accuse other inmates of criminal wrongdoing in order to obtain a sentence reduction.” (Id.) He claims Mr. Gunja “could have clarified for the jury the extent inmates will sometimes go to create such falsehoods by drawing on his decades of experience in corrections and having seem [sic] similar such schemes be perpetrated in the past.” (Id.) Accordingly, Shults contends this proposed testimony would have “helped the jury better weigh the credibility of Knox’s testimony.” (Id. at 11.) However, for largely the same reasons as above, Shults also fails to prove he received ineffective assistance of counsel on these grounds.
1. Speculation is insufficient
As an initial matter, all three asserted grounds for relief assume that the witnesses would have, in fact, been willing to testify in the manner Shults describes. However, “complaints based upon uncalled witnesses аre not favored in habeas corpus petitions ‘because the presentation of witness testimony is essentially strategic and thus within trial counsel’s domain, and that speculations as to what these witnesses would have testified is too uncertain.’” Preciado v. Munez, 2017 WL 11633163, at *6 (C.D. Cal. Dec. 22, 2017), report and recommendation adopted, 2018 WL 11354978 (C.D. Cal. Feb. 12, 2018), aff’d, 779 F. App’x 493 (9th Cir. 2019)
2. Shults does not overcome the presumption of reasonable judgment
Shults also fails to consider that given the testimony that was elicited by counsel at trial, it appears counsel made a reasonable tactical decision not to call additional witnesses or ask Mr. Assan an additional question. It is well settled that trial counsel is entitled to a strong presumption of reasonableness. As the Supreme Court in Strickland explained:
Judicial scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [citation]. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
466 U.S. at 689; see also Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999) (“Few decisions a lawyer makes draw so heavily on professional judgment as whether or not to proffer a witness at trial.“); Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980) (“[T]he decision whether to subpoena certain witnesses rests upon the sound professional judgment of the trial lawyer.“);
In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court clarified that Strickland “permits counsel to make a reasonable decision that makes particular investigations unnecessary.” Id. at 106 (internal quotation marks omitted). In other words, counsel was entitled to “balance limited resources in accord with effective trial tactics and strategies.” Id. at 107. Strickland does not “guarantee perfect representation, only a reasonably competent attorney.” Id. at 110 (internal quotation marks omitted). “Representation is constitutionally ineffective only if it ‘so undermined the proper functioning of the adversarial process’ that the defendant was denied a fair trial.” Id. (quoting Strickland, 466 U.S. at 686). Shults does not contend his counsel failed to interview the uncalled witnesses or investigate the benefit of their potential testimonies. In any event, based on the testimony that was elicited, it appears from the record that counsel‘s decisions were strategic because the additional evidence would likely have been cumulative.
3. The proposed testimony is cumulative
In presenting the defense, Shults’ counsel called sixteen witnesses, including eleven inmates, two correctional officers, two employees of the United States Marshals Service, and a
a. Inmate testimony
The testimony Shults claims should have been offered by Mr. Assan, Mr. Torrez, and an unnamed inmate, was that Knox told each witness he was trying to set Shults up so Knox could obtain a
Counsel‘s examination of Knox was centered on substantiating the defense‘s position, which included portraying Knox as incredible. For example, Knox was questioned on his familiarity with
During closing argument, counsel made the defense‘s theory clear: “We also, for context purposes, have to look at what this recording is and who made it. We know that. Bill Knox made this to set up Craig Shults. He made it to get time off his sentence. This was an ongoing setup.” (Doc. 126 at 101:4-7.) Counsel also asserted that upon allegedly hearing the threat, Knox did not disassociate himself, but rather arranged a meeting where there would be no other witnesses, “where he [could] control the conversation, where he [could] control the flow of information.” (Id. at 101:12-17.) The argument continued, “So these things on the recording you are hearing, they also happened to another individual. And, again, we have heard time and time again that Craig Shults would adopt other people‘s stories.” (Id. at 105:13-16.) Counsel asserted that Knox saw Shults as “an easy mark ... someone who he knew he could manipulate. He saw someone who he knew, if you fed him a story, he would spit it back out. Someone he could mold.” (Id. at 109:9-12.) Counsel argued that Shults did not acquire the personal information about Judge Guilford, but rather that the information came from Knox. (See id. at 111:1-6.)
Finally, former inmate Julio Caro testified that Knox said he “somehow organized” to cоnfidentially record Shults, that he made two attempts before successfully doing so, and that it was “really hard to get [Shults] to go” to their second meeting. (Doc. 126 at 32:12-15, 32:20-23.) Mr. Caro further testified that recording Shults “was going to give [Knox] a benefit on his case.” (Id. at 33:7-12.) Thus, just as with his own testimony, the testimony Shults proposes by way of these inmate witnesses would duplicate that already presented at trial. Thus, Shults fails to demonstrate he was prejudiced by counsel‘s failure to introduce cumulative evidence. See Staten v. Davis, 962 F.3d 487, 498 (9th Cir. 2020) (“When [the Ninth Circuit has] found the omission of cumulative evidence
b. Expert testimony
Shults fares no better in asserting the proposed expert testimony was “critical” in providing factual clarity to the jury. (Doc. 175 at 8.) He claims Mr. Gunja would have testified “that it is common for inmates in federal prison to lie and dо practically anything to try and obtain a sentence reduction.” (Id.) Assuming that this would have been Mr. Gunja‘s testimony and that the testimony would have been admissible, the trial record indicates that this notion was sufficiently conveyed to the jury. Beyond Knox‘s concession that he wore a wire to record Shults in exchange for a sentence reduction, (see Doc. 125 at 133:15-25, 134:1-17), at least five inmates testified about their knowledge of government cooperation in exchange for sentence reductions. (See, e.g., Doc. 124 at 17:4-5, 17:22-25, 20:10-13, 20:24-25, 21:1-5; Doc. 125 at 41:7-13, 43:7-23, 81:11-14; Doc. 126 at 33:7-19, 44:11-17.) FBI Special Agent, Nicholas Callahan, testified to the motivations of inmates who cooperate with the government, including expectations of a reduced sentence or money, or to “get even with someone that‘s wronged them.” (Doc. 124 at 29:3-16, 113:7-14.) He also testified about the need to consider an informant‘s background and “vet” a “jail house tip.” (Id. at 113:2-6, 113:25, 114-1-4.) In addition to consistently advancing the theory that inmates—particularly Knox—are potentially incredible because they are willing to do nearly anything for a sentence reduction, Shults’ counsel drove the point home during closing argument:
And being in prison is relevant, obviously, because as we‘ve heard, you heard it from Bill Knox himself, nobody wants to be there. People do just about anything to try to get out early. That‘s why we have all this RDAP fraud. It is a way to get out, cut some time off your sentence. Will people literally sell their soul to get out early? I
don‘t think so. But seems like they will come pretty close.
(Doc. 126 at 100:21-25; 101:1-3 [emphasis added].)
Moreover, as the Supreme Court held in Richter, even if a hypothetical expert‘s testimony has the potential of being useful, counsel may “avoid activities that appear ‘distractive from more important duties.‘” 562 U.S. at 107 (quoting Bobby v. Van Hook, 558 U.S. 4, 11 (2009)). In Van Hook, the Supreme Court rejected petitioner‘s argument that his attorney should have interviewed additional family members and a psychiatrist who once treated petitioner‘s mother. 558 U.S. at 11. The Court explained:
[T]here comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important duties. The ABA Standards prevailing at the time called for Van Hook‘s counsel to cover several broad categories of mitigating evidence, which they did. And given all the evidence they unearthed from those closest to Van Hook‘s upbringing and the experts who reviewed his history, it was not unreasonable for his counsel not to identify and interview every other living family member or every therapist who once treated his parents. This is not a case in which the defendant‘s attorneys failed to act while potentially powerful mitigating evidence stared them in the face or would have been apparent from documents any reasonable attorney would have obtained. It is instead a case, like Strickland itself, in which defense counsel‘s decision not to seek more mitigating evidence from the defendant‘s background than was already in hand fell well within the range of professionally reasonable judgments.
Id. at 11-12 (internal citations, quotation marks, and footnote omitted). Thus, bearing in mind the witnesses called, the testimony elicited, and the theories advanced, Shults fails to meet the heavy burden of proving that counsel‘s alleged failures were “neither reasonable nor the result of sound trial strategy.‘” Sanchez, 2021 WL 1192001, at *11; Ferreira-Alameda, 815 F.2d at 1254.
4. Shults fails to demonstrate a reasonable probability of a different outcome
Finally, Shults fails to demonstrate—and there is no indication in the record before the Court—that had the witnesses testified as he suggests that there is a reasonable probability that the trial‘s outcome would have been different. The proposed testimony is speculative and cumulative without any showing that it is admissible.
As to counsel‘s failure to call the inmate witnesses and to ask Mr. Assan an additional
With respect to the proposed expert testimony, Shults makes two distinct, albeit related, arguments. First, he argues Mr. Gunja‘s testimony “would have been critical for the jury to hear because it would have provided factual clarity about prison life and the efforts inmates will take sometimes to get a sentence reduction. Had this testimony been presented, there is a reasonable probability the jury would have found Shults not guilty or been unable to rеturn a verdict.” (Doc. 175 at 8.) However, as explained supra, the testimony would have been cumulative, not critical. Even so, Shults does not explain how such testimony would create a probability “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Leonti, 326 F.3d at 1120.
Shults also asserts “[t]here is a reasonable probability that had [the expert] testimony been given the jury would have returned a verdict of not guilty because Gunja‘s proposed testimony would have helped the jury better weigh the credibility of Knox‘s testimony—which was key to the jury‘s finding of guilt.” (Doc. 175-1 at 10-11.) Though witness credibility was important in this case, Shults’ attorneys went to lengths to emphasize the incredibility of the inmates—particularly, Knox—who cooperate with the government. Further efforts to impeach Knox were unnecessary. See Dickey, 231 F. Supp. at 681-82 (rejecting argument that counsel was deficient by failing to present testimony impeaching adverse witnesses where nine other witnesses had
In addition to thoroughly attacking Knox‘s credibility on direct examination, Shults’ counsel made further impeachment efforts through the testimony of at least three witnesses. For example, Mr. Caro testified that Knox approached him about the idea of making a movie about Knox‘s life but that he “probably” did not consider it. (See Doc. 126 at 31:2-7.) Knox, on the other hand, testified that it was Mr. Caro who wanted to make the movie. (Doc. 125 at 215: 17-25; 216:1-5.) Also, as previously mentioned, Mr. Caro testified to the statements Knox made about Shults’ case, (see Doc. 126 at 32:1-25, 33:1-19), while Knox testified that he never talked to Mr. Caro about the case. (Doc. 125 at 217:7-13.) Knox also testified that he told FBI Agent Callahan that Shults had made a threat to harm Judge Guilford at a meal when and fellow inmate, William Ison was present. (Id. at 125:24-25, 126:1-8.) However, Mr. Ison testified that this didn‘t happen, and, in fact, he never heard Shults make such a threat. (See id. at 16:9-14.) Darcy Smith, a senior inspector for the U.S. Marshals Service, likewise testified that when interviewing Mr. Ison in connection with the alleged threats, Mr. Ison stated that he never heard Shults claim he wanted to kill his judge and he was not “there,” contradicting Knox‘s account. (Id. at 101:11-25.) Thus, the record reflects thorough efforts to impeach Knox, which required the jury to weigh his credibility.11
Again, Shults fails to explain how the proposed testimony would have had more than a
C. An evidentiary hearing is not warranted
Shults requests an evidentiary hearing on his
A
Though the standard for obtaining an evidentiary hearing under
Shults has not met his burden of showing entitlement to relief or an evidentiary hearing. His sole argument in support of his request for a hearing is that the allegations are not conclusively refuted by the record. (Doc. 175-1 at 11; Doc. 191.) This is insufficient. Christensen, 2020 WL 1672771, at *7; Rodrigues, 347 F.3d at 824. Without belaboring the point further, Shults’ bare assertions and legal conclusions are unsupported by the rеcord and will not suffice to entitle him to relief or an evidentiary hearing. The record conclusively shows that Shults did not suffer prejudice from any alleged deficient conduct of defense counsel. Thus, the motion makes no claim entitling Shults to relief and a hearing is not warranted.
D. Certificate of appealability
The Court declines to issue a certificate of appealability in connection with his
For the reasons previously stated, Shults has not made a substantial showing of the denial
IV. Conclusion and Order
Based upon the foregoing, the Court ORDERS:
- Shults’
28 U.S.C. § 2255 motion (Docs. 154, 175) is DENIED. - Shults’ request for an evidentiary hearing is DENIED.
- The Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
Dated: January 3, 2024
Jennifer L. Thurston
UNITED STATES DISTRICT JUDGE