USA v. Mujahid

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. )
)
SABIL M. MUJAHID, )
) No. 3:10-cr-0091-HRH
Defendant. )
_______________________________________)
O R D E R
Motion to Vacate Pursuant to 28 U.S.C. § 2255
On November 7, 2016, defendant Sabil M. Mujahid, proceeding pro se, moved to
vacate his sentence pursuant to 28 U.S.C. § 2255.1 Defendant also filed a motion for
appointment of counsel and requested that attorney John Balazs be appointed.2 The court
originally denied defendant’s request to have Mr. Balazs appointed as his counsel,3 but upon
reconsideration, the court appointed Mr. Balazs as defendant’s counsel.4 Defendant’s
1Docket No. 436.
2Docket No. 437.
3Docket No. 440.
4Docket No. 448.
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amended § 2255 motion was filed on September 29, 2017.5 Plaintiff’s response was filed on
December 13, 2017.6 Defendant’s reply was filed on April 20, 2018.7 On May 18, 2018, the
court requested additional materials from defendant and plaintiff.8 Defendant and plaintiff
both submitted additional materials in response to the court’s request.9
Factual Background
On December 5, 2007, defendant was arrested by the State of Alaska on a controlled
substance charge.10 On July 16, 2008, an Information was filed charging defendant with a
controlled substance offense in state court Case No. 3AN-07-13675CR.11 Defendant was
arrested and then released on bail.12 On September 5, 2008, defendant was arrested by the
State of Alaska on an assault charge and his bail in the controlled substance case was
revoked.13 On December 16, 2008, defendant was again released on bail in the controlled
5Docket No. 459.
6Docket No. 465.
7Docket No. 479.
8Docket No. 482.
9Docket Nos. 487, 488 and 490.
10Affidavit of Sabil Mujahid at 2, ¶ 3, Docket No. 438; SEALED Revised PreSentence
Investigation Report at 22, ¶ 107, Docket No. 336.
11SEALED Revised PreSentence Investigation Report at 25, ¶ 107, Docket No. 336.
12Mujahid Declaration at 2, ¶¶ 5-6, Docket No. 438.
13Id. at 2, ¶ 7.
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substance case to a representative of Defendant Monitoring Services (DMS), as a third-party
custodian, and was fitted with an ankle monitor.14 On February 19, 2009, DMS advised the
State’s District Attorney Office that defendant had violated the conditions of his release by
not being at treatment when scheduled and by making two unscheduled stops on his way to
treatment.15 A hearing was set in state court for March 5, 2009.16
On March 3, 2009, according to defendant, the U.S. Marshal and FBI Agent Jolene
Goeden met with the State District Attorney’s Office to discuss revoking defendant’s bail in
the controlled substance case.17 Defendant does not explain how he knows about this alleged
meeting.
On March 4, 2009, the FBI applied for a warrant to search defendant’s car for
evidence of violations of 18 U.S.C. § 1952 in connection with a sex trafficking investigation
being carried out by the FBI and the Anchorage Police Department (APD).18 The application
14Id. at 2, ¶ 9.
15Defendant Monitoring Services Report at 1, Exhibit D, Affidavit of Sabil M.
Mujahid, Docket No. 480.
16Prosecutor’s Application for Bail Review Hearing at 1, Exhibit C, Mujahid
Affidavit, Docket No. 480.
17Mujahid Affidavit at 3, ¶ 10, Docket No. 438.
18Docket No. 1 in SEALED Case No. 3:09-mj-0032. Defendant was eventually
indicted in the sex trafficking case on December 9, 2009. Docket No. 82 in Case No. 3:09-
cr-0053-TMB. These charges were dismissed without prejudice on October 6, 2011. Docket
No. 780 in Case No. 3:09-cr-0053-TMB.
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was supported by the affidavit of FBI Agent Goeden.19 A federal search warrant was issued
that same day, March 4, 2009.20
On March 5, 2009, the APD Vice Unit was assisting federal officers with the federal
search warrant.21 At approximately 1:20 p.m. that day, APD Detective Allen Adair observed
defendant retrieve “a small white plastic grocery type bag” from a storage locker at
defendant’s apartment complex and put the bag in the trunk of his car.22 Adair observed
defendant drive away from the apartment complex about 15 minutes later.23
At approximately 1:50 p.m. on March 5, 2009, APD Detective Vondolteren observed
defendant arrive at the state court house.24 Vondolteren followed defendant into the state
court house,25 where defendant had a bail hearing scheduled for 2 p.m.26 At the hearing, the
19Attachment A to Docket No. 1 in SEALED Case No. 3:09-mj-0032.
20Docket No. 4 in SEALED Case No. 3:09-mj-0032.
21Adair Incident Report at 1, Exhibit A, Declaration of Allen Adair [etc.], Docket No.
466.
22Id.
23Id. at 2.
24Vondolteren Incident Report at 1, Exhibit I, Declaration of Counsel John Balazs,
Docket No. 481.
25Id.
26Mujahid Declaration at 3, ¶ 11, Docket No. 438.
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state court judge did not revoke defendant’s bail and release but warned him that if there
were any further violations, he would be returned to jail.27
Around 3 p.m., as defendant was leaving the state courtroom where his bail hearing
had been held, FBI Agent Goeden informed him that a search of his apartment and car were
underway.28
At approximately 3:30 p.m., FBI Agent Goeden notified Detective Adair that a hand
gun had been found in defendant’s car.29
After defendant left the state courthouse on March 5, 2009, he cut off his ankle
monitor.30 DMS became aware that defendant had removed his ankle monitor around 3:50
p.m. when defendant told the DMS representative who had been in attendance at the state
court bail hearing that “[y]our stuff’s around the corner.”31 DMS advised the state
prosecutor, APD, and FBI Agent Goeden that defendant had removed his ankle monitor.32
27Id. at ¶ 12; Testimony of Thomas Faison at 32:1-4, Exhibit A to Amended § 2255
Motion, Docket No. 459.
28Mujahid Declaration at 3, ¶ 13, Docket No. 438.
29Adair Incident Report at 2, Exhibit A, Adair Declaration, Docket No. 465.
30Mujahid Declaration at 3, ¶ 14, Docket No. 438.
31Thomas Faison Testimony at 37:4-10, Exhibit A to Amended § 2255 Motion, Docket
No. 459.
32Mujahid Declaration at 3, ¶ 15, Docket No. 438.
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At approximately 4:00 p.m., Detective Adair learned that defendant had “removed his global
positioning system ankle monitor and it appeared he was attempting to flee.”33
At some point, Detective Vondolteren was also advised that defendant had removed
his ankle monitor, and Detective Vondolteren, along with Detective Barbosa, was dispatched
to help search for defendant.34 Detectives Vondolteren and Barbosa, who occupied the same
vehicle, arrived at defendant’s residence where they “received approval from Sgt. Lacey . . .
to arrest [defendant] as the APD Special Assignment Unit was currently unavailable.”35 “The
arrest team was composed of Det. Barbosa, S/A Goeden and [Vondolteren,] who occupied
the same vehicle, and Det. Kleinsmith and Det. McKinnon, who occupied the same
vehicle.”36
Around 6:30 p.m., on March 5, 2009, Vondolteren, Barbosa, and Goeden located the
pickup truck in which defendant was riding.37 “Members of the [APD] Vice Unit” began
“surveilling [defendant], until a marked police vehicle was available to conduct a traffic
33Adair Incident Report at 2, Exhibit A, Adair Declaration, Docket No. 466.
34Vondolteren Incident Report at 1-2, Exhibit I, Balazs Declaration, Docket No. 481.
35Id. at 2.
36Id.
37Id.
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stop.”38 APD “planned to conduct a probable cause arrest with Special Agent GOEDEN for
[defendant’s] possession of a firearm five hours earlier.”39
Defendant avers that “while [he] was on the run, [an] Anchorage Police Department
squ[a]d car with it’s [sic] amber lights made a traffic stop” and that two other APD cars
assisted with the stop.40 Detective Adair wrote in his incident report that he
joined the surveillance in the vicinity of 36th Avenue and
Seward Highway. At the intersection of Fireweed and Seward,
I observed a patrol car directly behind the truck [defendant] was
riding in. I pulled my vehicle in front of the pickup truck as we
approached the intersection of 15th and Ingra. The patrol
officer activated his emergency lights and I stopped my vehicle
in front of the truck to assist with the arrest.[41]
The patrol officer in question was Officer Gould.42 After the pickup truck stopped, “Det.
Kleinsmith and Det. McKinnon approach[ed] the front driver side of the vehicle and
stop[ped] near the hood. Both had their weapons drawn.”43 Vondolteren approached the
passenger side door and
as [defendant’s] hands moved towards his torso, I placed my
service weapon against his head with my index finger against
38Adair Incident Report at 2, Exhibit A, Adair Declaration, Docket No. 466.
39Id.
40Mujahid Declaration at 4, ¶ 16, Docket No. 438.
41Adair Incident Report at 2, Exhibit A, Adair Declaration, Docket No. 466.
42Vondolteren Incident Report at 2, Exhibit I, Balazs Declaration, Docket No. 481.
43Id.
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the slide, identified myself as a police officer and ordered him
to place his hands on the dash. [Defendant] immediately
complied. [He] exited the vehicle at my direction and was
handcuffed by Det. Barbosa.[44]
Defendant however avers that Detective Adair along with “Detective John Kleinsmith
open[ed] the [passenger] side of the car door and arrested [him] for the bail violation.”45
Defendant avers that FBI Agent Goeden arrived while his arrest was in progress.46
Defendant avers that he was already in handcuffs by the time FBI Agent Goeden arrived on
the scene and that he “was not arrested by any federal agents.”47
After his arrest, defendant was transported to the FBI District Office by FBI Agent
Goeden and APD Detectives Adair and Barbosa.48 Defendant was “subsequently remanded”
to the Anchorage Correctional Complex.49
At some point in the evening of March 5, 2009, FBI Agent Goeden signed a Form
USM-41.50 “A Form USM-41 is a Prisoner Remand or Order to Deliver And Receipt for
44Id.
45Mujahid Declaration at 4, ¶ 17, Docket No. 438.
46Mujahid Declaration at 4, ¶ 18, Docket No. 438.
47Id. at 4, ¶¶ 18-19.
48Adair Incident Report at 2, Exhibit A, Adair Declaration, Docket No. 466.
49Id.
50Exhibit A, Declaration of Rochelle Liedike Regarding the Form USM-41 [etc.],
Docket No. 468.
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United States Prisoners.”51 A Form USM-41 is used by Deputy Marshals and “Federal Case
Agents to ‘Remand,’ or place an individual in federal custody.”52 The March 5, 2009 Form
USM-41 was addressed to “DOC” and provided that “THE FOLLOWING NAMED
UNITED STATES PRISONER(S): Sabil Mujahid 3/12/1957" was “herewith remanded to
your custody[.]”53 The March 5, 2009 Form USM-41 further provided that “THE ABOVE
NAMED UNITED STATES PRISONER(S) WERE RECEIVED: BY” Phillips, COII.54
There is a time of “2030 hrs” handwritten on the Form USM-41 that appears to have been
written by Phillips.55
The Alaska Department of Corrections’ database is referred to as ACOMS.56
ACOMS contains a Location History Listing for each inmate. The Location History Listing
is “a log indicating location descriptions, housing locations/status, and beginning/ending
dates. . . .”57 Defendant’s Location History Listing shows that on March 5, 2009, defendant
51Liedike Form USM-41 Declaration at 2, ¶ 2, Docket No. 468.
52Id.
53Form USM-41, Exhibit A, Liedike Form USM-41 Declaration, Docket No. 468.
54Id.
55Id.
56Declaration of Rochelle Liedike Regarding ACOMS Location History & Legal
Status Listing [etc.] at 2, ¶ 2, Docket No. 469.
57Id. at 2, ¶ 4.
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was in the Anchorage Jail on “Hold-US Marshal.”58 Defendant contends that this means that
the U.S. Marshals had put a hold or “detainer” on him so he would not be released from state
custody on bail. Rochelle Liedike, a Deputy U.S. Marshal-Criminal Investigator, avers that
this entry indicates defendant’s “remand into federal custody. . . .”59 ACOMS also contains
a Legal Status Listing for each inmate. Defendant’s Legal Status Listing indicates that he
was a “federal inmate” from March 5, 2009 through June 28, 2010.60
The Marshals Service maintains a Form USM-129 Individual Custody/Detention
Report on each federal inmate. “A Form USM-129, among other details, will include an
inmate’s name, alias, identifiers, cautions, TB clearances, DNA testing, detainers lodged and
received, custody/court information and housing locations.”61 Defendant’s Form USM-129
shows that his custody status from March 5, 2009 until December 21, 2009 was “WT-CASE-
RESOLVE.”62 Liedike avers that “[t]his means [defendant] was arrested on 3/5/2009 and
in federal custody waiting for his case to resolve.”63
58Exhibit B to Amended 2255 Petition, Docket No. 459.
59Liedike ACOMS Declaration at 2, ¶ 4, Docket No. 469.
60Exhibit B, Liedike ACOMS Declaration, Docket No. 469.
61Declaration of Rochelle Liedike regarding Form USM-129 [etc.] at 2, ¶ 3, Docket
No. 470.
62Form USM-129, Exhibit A at 8, Liedike Form USM-129 Declaration, Docket No.
470.
63Liedike Form USM-129 Declaration at 3, ¶ 5, Docket No. 470.
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On March 6, 2009, a Notice of Arrest was filed in federal court indicating that
defendant had been arrested on March 5, 2009. Shortly thereafter, a criminal complaint was
filed in federal court, charging defendant with being a felon in possession of a firearm and
ammunition.64 The criminal complaint was supported by the affidavit of FBI Agent
Goeden.65 Goeden averred that she had participated in the search of defendant’s car on
March 5, 2009, during which a loaded firearm and ammunition were found in the trunk.66
Defendant was taken to federal court for an initial appearance on March 6, 2009.67
A detention hearing was set for March 11, 2009,68 at which FBI Agent Goeden testified.69
The court found probable cause and ordered defendant held on the charge pending trial.70
Defendant notes that he was taken to federal court on March 6, 2009, “without a writ of
habeas corpus ad prosequendum or consent of the State of Alaska.”71
64Docket No. 1 in 3:09-cr-0034-TMB.
65Attachment A, Criminal Complaint, Docket No. 1. in Case No. 3:09-cr-0034-TMB.
66Id. at 1.
67Docket No. 5 in Case No. 3:09-cr-0034-TMB.
68Docket No. 7 in Case No. 3:09-cr-0034-TMB.
69Docket No. 9 in Case No. 3:09-cr-0034-TMB.
70Id.
71Memorandum of Points and Authorities in Support of Amended Motion to Vacate
Under 28 U.S.C. § 2255 at 4, Docket No. 460.
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On March 9, 2009, Annette P. Colby, with Fred’s Bail Bonding, filed an affidavit to
revoke and exonerate bond in defendant’s state court controlled substance case, Case No.
3AN-07-13675CR.72 Colby averred that defendant “was out of custody on electronic
monitoring on this case. During the evening of 3/5/09 he ran from the Defendant Monitoring
Service’s representative. He was taken into custody and is under a federal hold at this
time.”73
On March 13, 2009, the state court revoked defendant’s bond.74 The state court
issued a temporary order that defendant was to be held in custody, pending further action or
the posting of a $5000 cash performance bond and the appointment of a new third-party
custodian.75 Defendant’s next state court appearance was set for March 23, 2009.76
On March 18, 2009, defendant was indicted by a federal grand jury on one count of
being a felon in possession of a firearm and ammunition.77
72Affidavit to Revoke and Exonerate Bond, Exhibit A at 1, Response in Opposition
to Defendant Sabil Mujahid’s Motion under 28 U.S.C. § 2255, Docket No. 465.
73Id.
74Expedited Request, Exhibit A at 2, Response in Opposition to Defendant Sabil
Mujahid’s Motion under 28 U.S.C. § 2255, Docket No. 465.
75Temporary Order at 1, Exhibit E, Mujahid Affidavit, Docket No. 480.
76Id.
77Docket No. 15 in Case No. 3:09-cr-0034-TMB.
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On March 23, 2009, the state court issued another temporary order that defendant was
to be held in custody, pending further action by the court or the posting of a $5000 cash
performance bond and the appointment of a new third-party custodian.78 Defendant’s state
court arraignment was set for March 25, 2009 at 1:45 p.m.79 There is no evidence in the
record as to whether the arraignment ever took place. Defendant avers that he represented
himself at all of his state court proceedings after March 5, 2009.80 State court records,
however, show that defendant was represented by the public defender agency in March
2009.81 Defendant also avers that he never requested a state bail hearing after he was
arrested on March 5, 2009.82 Defendant further avers that he “requested the State Prosecutor
. . . to waive the state’s jurisdiction by dismissing the drug case, so [he] could proceed with
the federal cases” but that “[t]he prosecutor refussed [sic] in open court.”83
On June 18, 2009, a federal jury found defendant guilty of being a felon in possession
of a firearm and ammunition.84
78Temporary Order at 1, Exhibit F, Mujahid Affidavit, Docket No. 480.
79Id.
80Mujahid Affidavit at 1, ¶ 1, Docket No. 480.
81Temporary Order at 1, Exhibit E; Temporary Order at 1, Exhibit F; Mujahid
Affidavit, Docket No. 480.
82Mujahid Declaration at 1, ¶ 2, Docket No. 480.
83Id. at 2, ¶ 4.
84Docket No. 64 in Case No. 3:09-cr-0034-TMB.
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On June 23, 2009, the State of Alaska issued a detainer.85 Liedike avers that “[t]he
USMS would only receive a detainer on an inmate if that inmate were in federal primary
custody at the time.”86
Defendant’s Form USM-129 Custody/Detention Records reflects a custody status
change on December 21, 2009.87 On that date, defendant’s custody status is listed as “RL-
Writ” and the remark accompanying this status change reads: “Fed Primary/RL - Writ
SOA[.]”88 Liedike avers that “[t]his entry means that [defendant] was a federal inmate that
the State of Alaska was b[o]rrowing on Writ for his state case. . . .”89 Defendant’s custody
remained at this status until June 28, 2010.90
On March 18, 2010, defendant was sentenced by a federal judge to 126 months on the
felon in possession charge.91
85Form USM-129, Exhibit A at 2, Liedike Form USM-129 Declaration, Docket No.
470.
86Liedike Form USM-129 Declaration at 2, ¶ 4, Docket No. 470.
87Form USM-129, Exhibit A at 8, Liedike Form USM-129 Declaration, Docket No.
470.
88Id.
89Liedike Form USM-129 Declaration at 3, ¶ 6, Docket No. 470.
90Id.
91Docket No. 106 in Case No. 3:09-cr-0034-TMB.
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On June 22, 2010, the State of Alaska dismissed the controlled substance charge for
which defendant had been arrested in 2008.92 Defendant contends that he made more than
thirteen appearances in state court in connection with the controlled substance charge from
March 5, 2009 until the case was dismissed in June 2010.
Defendant avers that on June 23, 2010, he had a re-classification hearing based on a
“Remand Detainer” and “Memorandum” filed by an Assistant U.S. Attorney.93 There is no
other evidence in the record that suggests that defendant had a re-classification hearing on
June 23, 2010. Department of Corrections records show that defendant was placed in
administrative segregation on May 27, 2010.94 On June 4, 2010, defendant was notified that
a classification hearing would be held on June 8, 2010.95 Department of Corrections records
show that on June 8, 2010, the segregation committee recommended that defendant “remain
in segregation” and that “the U.S. Marshal request for him to be in segregation.”96
92Dismissal at 1, Exhibit G, Mujahid Declaration, Docket No. 480.
93Mujahid Declaration at 3-4, ¶¶ 13-15, Docket No. 480.
94Administrative Segregation Admission at DOC 08099, attached to Amended
Response to Court Order [etc.], Docket No. 488.
95Notice of Appearance at DOC 08097-98, attached to Amended Response to Court
Order [etc.], Docket No. 488.
96Administrative Segregation Classification Form at DOC 08905, attached to
Amended Response to Court Order [etc.], Docket No. 488.
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Defendant’s next review of his classification was set for July 8, 2010,97 but there is no
evidence in the record that this review ever occurred. Liedike avers that the Marshals
Service does not have “a document entitled “Remand Detainer[]’” nor does the Marshals
Service have an associated “Memorandum” in its files for defendant.98
On June 28, 2010, defendant’s Location History Listing shows “rls to federal.”99
Liedike avers that “[t]his is the common entry by DOC when the USMS transports a federal
inmate to the Bureau of Prisons (BOP) for federal housing and the DOC is discharging the
inmate from their facility.”100 Liedike avers that “[t]he USMS did transport [defendant] to
SeaTac FDC (a federal facility of the BOP) on 6/28/2010.”101
On September 23, 2010, defendant was indicted on twelve counts of sexual abuse,
aggravated sexual abuse, and abusive sexual contact.102 Defendant was alleged to have
sexually assaulted three other inmates while incarcerated at the Anchorage Correctional
Complex. On April 19, 2011, a Second Superseding Indictment was filed adding charges
97Id.
98Declaration of Rochelle Liedike re “Remand Detainer” [etc.], at 2, ¶¶ 2-3, Docket
No. 490.
99Exhibit B to Amended § 2255 Petition, Docket No. 459.
100Liedike ACOMS Declaration at 3, ¶ 7, Docket No. 469.
101Id.
102Docket No. 1.
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involving three additional inmates.103 The sexual assaults were alleged to have occurred
between May 2009 and May 2010.
On November 12, 2010, defendant filed a motion to dismiss the indictment on the
ground that the federal criminal statutes that were the basis for the charges on which he had
been indicted were enacted beyond the federal government’s limited, enumerated
Constitutional powers.104 This motion was denied.105 The court later approved the parties’
stipulation that the motion to dismiss, further briefings, and the court’s order denying the
motion to dismiss be deemed to apply to all charges in the Second Superseding Indictment
as well.106
Defendant’s trial in the sexual abuse case began on June 20, 2011.107 At trial, Liedike
testified that there are no federal facilities in Alaska to house federal prisoners and so the
Marshals Service contracts for bed space with the State of Alaska’s Department of
Corrections.108 Liedike testified that the contract covered several Department of Corrections
facilities throughout Alaska but that the majority of federal prisoners are housed in “the
103Docket No. 218.
104Docket No. 24.
105Docket No. 108.
106Docket No. 246.
107Docket No. 287.
108Trial Transcript (Day 2) at 24:9-16, Docket No. 365.
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Anchorage Correctional Complex East and West buildings.”109 Liedike testified that the
Anchorage Correctional Complex houses “federal, state, and local inmates” and that inmates
are pretrial detainees as well as persons who have already been convicted and sentenced.110
Liedike testified that the assaults had occurred in the Anchorage Correctional Complex East
in three different mods, Delta, Echo, and Bravo.111
At the conclusion of plaintiff’s case-in-chief, the court granted defendant’s motion for
judgment of acquittal on Counts 7 and 14.112 On June 29, 2011, a jury found defendant guilty
on Counts 5, 6, 8, 9, 10, 11, 12, 16, 17, 18, 19, and 20 and not guilty on Count 5.113 The jury
was unable to reach a verdict as to Counts 1-4 and the court declared a mistrial as to those
counts. Counts 1-4 and 13114 were eventually dismissed with prejudice and Counts 10 and
12 were also dismissed due to a fault in the verdict forms.115
After the trial, plaintiff moved for a finding on the record that the Anchorage
Correctional Complex is a facility in which persons are held in custody pursuant to a contract
109Id. at 27:9-15.
110Id. at 27:18-22.
111Id. at 28:25-29:4.
112Docket No. 302.
113Docket No. 311.
114Count 13 had been severed and was to be tried separately after trial on the other
counts was completed due to a defense counsel conflict. Docket No. 220.
115Docket Nos. 315 and 318.
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with a federal agency.116 The court “conclud[ed] that, as a matter of law, the Anchorage
Correctional Complex is a facility in which persons are held in custody pursuant to an
agreement with the United States Marshals Service, a federal agency.”117
On September 15, 2011, defendant was sentenced to 480 months on Counts 5, 9, 17,
and 19;118 36 months on Counts 8 and 16; and 120 months on Count 11, to run concurrent to
each other.119
On September 29, 2011, defendant filed a Notice of Appeal.120
On January 12, 2012, defendant filed a pro se motion for a new trial,121 in which he
“argued that the government withheld evidence, namely, a memorandum letter and remand
detainer that ‘could have showed that comity was with the State of Alaska at the time of the
allege[d] assault on John Doe 3 and John Doe 6.’” United States. v. Mujahid, 799 F.3d 1228,
1232 (9th Cir. 2015). On February 10, 2010, the court denied defendant’s motion for a new
116Docket No. 316.
117Docket No. 320 at 2.
118Counts 5 and 6; Counts 17 and 18; and Counts 19 and 20 were considered three
pairs of counts and the parties agreed that each pair constituted a single offense. Docket No.
311. As a result, Counts 6, 18, and 20 were dismissed. Docket No. 346.
119Docket Nos. 345 and 350.
120Docket No. 352.
121Docket No. 391.
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trial on the ground that it lacked jurisdiction because defendant had already appealed the
judgment of conviction.122
On February 22, 2012, defendant filed a second Notice of Appeal.123
Defendant’s appeals were consolidated. On appeal, defendant argued that this court
should have dismissed “the indictment because the statutes of conviction are unconstitu-
tional” and “that whether the Anchorage Correctional Complex is a facility in which persons
are held pursuant to a contract with the head of a federal agency is a question of fact that
should have been determined by the jury, not the trial judge.” Id. at 1232. The Ninth Circuit
held that the statutes of convictions were not facially unconstitutional. Id. at 1235. The court
explained that “the statutes are not so overbroad as to completely exceed Congress’ power
under the Necessary and Proper Clause” of the U.S. Constitution. Id. The Ninth Circuit
declined to consider defendant’s as-applied challenge to the statutes of conviction because
the record was not fully developed on that issue and this court had not ruled on the issue. Id.
at 1236. The Ninth Circuit noted that “[t]he district court remains free to reconsider this
issue upon an appropriate motion.” Id. at 1236 n.10. Finally, the Ninth Circuit held that “the
district court may determine as a matter of law whether the facility at which the alleged crime
took place is one ‘in which persons are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal department or agency.’” Id. at 1238.
122Docket No. 400.
123Docket No. 402.
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On October 3, 2016, defendant’s petition for certiorari was denied, and defendant’s
§ 2255 motion followed on November 17, 2016.
In his amended § 2255 motion, defendant asserts four grounds for relief. In Claim
One, defendant asserts that the statutes of conviction are unconstitutional as applied to him.
In Claim Two, defendant asserts that plaintiff violated the principle of comity in prosecuting
him for offenses that occurred while he was in state custody. In Claim Three, defendant
asserts that plaintiff withheld material, exculpatory evidence showing that he was a state
inmate between May 2009 and May 2010. In Claim Four, defendant asserts that his trial
counsel rendered ineffective assistance because he did not raise an as-applied challenge to
the statutes of conviction and because he did not attempt to obtain certain documents which
defendant contends would show that he was a state prisoner during the relevant time.
Standard of Review
Section 2255(a) of Title 28 of the United States Code provides:
A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon 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, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.
“When a district court reviews a § 2255 habeas motion, ‘[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall
. . . grant a prompt hearing thereon, determine the issues and make findings of fact and
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conclusions of law with respect thereto.’” United States v. Withers, 638 F.3d 1055, 1062
(9th Cir. 2011) (quoting 28 U.S.C. § 2255(b)). “In determining whether a hearing and
findings of fact and conclusions of law are required, ‘[t]he standard essentially is whether the
movant has made specific factual allegations that, if true, state a claim on which relief could
be granted.’” Id. (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).
“Under this standard, a district court may summarily dismiss a § 2255 motion only if the
allegations in the motion, when viewed against the record, do not give rise to a claim for
relief or are ‘palpably incredible or patently frivolous.’” Id. at 1062-63 (quoting Schaflander,
743 F.2d at 717). “Section 2255 requires only that the district court give a claim careful
consideration and plenary processing, including full opportunity for presentation of the
relevant facts.” Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989) (citation
omitted).
Claim One
In his first claim, defendant argues that his conviction should be vacated because the
statutes of conviction are unconstitutional as applied to him. Defendant was convicted of
violations of 18 U.S.C. §§ 2241, 2242, and 2244. The statutes of conviction apply to sexual
offenses committed “‘in any prison, institution, or facility in which persons are held in
custody by direction of or pursuant to a contract or agreement with the Attorney General.’”
Mujahid, 799 F.3d at 1233 (quoting Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109–162, § 1177(a), 119 Stat. 2960, 3125 (2006)
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(codified as amended at 18 U.S.C. §§ 2241–2244)). For purposes of these statues, “the term
‘prison’ means a correctional, detention, or penal facility[.]” 18 U.S.C. § 2246(1).
Defendant argues that the statutes of conviction are unconstitutional as applied to him
because the federal government lacks the power to criminalize sexual assaults by a state
inmate against other state inmates124 in a local jail.
The Ninth Circuit has held that “18 U.S.C. §§ 2241, 2242, and 2244 are plainly
constitutional as applied to an individual in federal custody who is being held in a state
facility pursuant to a contract with a federal agency.” Mujahid, 799 F.3d at 1236. Thus, if
defendant were in federal custody at the time of the sexual assaults, the statutes of conviction
would be constitutional as applied to him. However, defendant contends that he was in state
custody and under the primary jurisdiction of the State of Alaska from March 5, 2009 until
on or about June 28, 2010, which encompasses the time period during which the sexual
assaults occurred (May 2009 through May 2010).
“‘The term “primary jurisdiction” . . . refers to the determination of priority of
custody . . . between state and federal sovereigns.’” Johnson v. Gill, 883 F.3d 756, 759 n.1
(9th Cir. 2018) (quoting Taylor v. Reno, 164 F.3d 440, 444 n.1 (9th Cir. 1998)). “As a
general rule, the first sovereign to arrest a defendant has priority of jurisdiction for trial,
sentencing, and incarceration.” Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991).
124There is no dispute that the victims of the sexual assaults for which defendant was
convicted were state inmates.
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“Although ‘custody’ can mean mere physical possession or control of a person, it may also
refer to lawful authority over a person.” Johnson, 883 F.3d at 761.
Defendant argues that the evidence shows that the State of Alaska had primary
jurisdiction from March 5, 2009 until June 28, 2010. This argument is based on defendant’s
contention that on March 5, 2009, he was arrested by APD officers, not federal officers, for
violating his bail conditions in the state controlled substance case.125
While there is some dispute as to which APD officers were involved in defendant’s
arrest and as to whether FBI Agent Goeden was present when defendant was taken out of the
truck and put in handcuffs, there is no dispute that it was APD officers who removed
defendant from the truck in which was he riding and who handcuffed him. But, that does not
necessarily mean that the State of Alaska had primary jurisdiction of defendant during the
relevant time (May 2009 through May 2010).
Although defendant avers that he was arrested for violating of his state bail
conditions, when viewed against the record, this averment is not credible. The evidence in
the record establishes that defendant was arrested on federal charges and placed in federal
custody on the night of March 5, 2009.
Adair’s incident report indicates that APD “planned to conduct a probable cause arrest
with Special Agent GOEDEN for [defendant’s] possession of a firearm five hours earlier.”126
125Mujahid Declaration at 4, ¶ 17, Docket No. 438.
126Adair Incident Report at 2, Adair Declaration, Docket No. 466.
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Detective Vondolteren’s report is not to the contrary, as defendant contends. In his report,
Detective Vondolteren indicated that APD officers “received approval from Sgt. Lacey . . .
to arrest [defendant] as the APD Special Assignment Unit was currently unavailable.”127
Defendant argues that this notation indicates that APD was going to arrest him for violating
his bail conditions, but that is not what Vondolteren’s report says. The only reference in
Vondolteren’s report as to defendant’s bail conditions is a notation that “Sgt. Lacey advised
me that [defendant] had removed his ankle monitoring device and fled the immediate area”
and a reference to defendant’s “recent actions removing his electronic monitoring
device[.]”128 While these notations establish that Vondolteren knew that defendant had cut
off his electronic monitoring device, they do not suggest that APD’s intent was to arrest
defendant for violating his bail conditions. Moreover, Vondolteren and Barbosa were given
approval to arrest defendant while speaking with Sgt. Lacey at defendant’s apartment
complex, where a search pursuant to a federal search warrant was being conducted.129 This
supports Adair’s statement that APD intended to arrest defendant because of the results of
the federal search, rather than because he had removed his ankle monitor. When viewed as
a whole, the actions of the APD officers on March 5, 2009, were focused on the investigation
of defendant for possible violations of federal sex trafficking laws and the federal search
127Vondolteren Incident Report at 2, Exhibit I, Balazs Declaration, Docket No. 481.
128Id. at 1-2.
129Id. at 2.
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warrant that was issued as a result of that investigation. The credible evidence in the record
establishes that APD intended to arrest defendant on federal charges, rather than state
charges, on the night of March 5, 2009.
But even assuming that the State of Alaska acquired primary jurisdiction of defendant
at the moment of his arrest, that primary jurisdiction was relinquished almost immediately.
A sovereign can relinquish primary jurisdiction by turning an arrestee over to another
sovereign. Smith v. Williams, Case No. CV 13–7722–VAP (JPR), 2014 WL 3055900, at
*3 (C.D. Cal. July 3, 2014). The evidence in the record establishes that APD turned
defendant over to federal authorities almost immediately after his arrest and that the federal
government had primary jurisdiction from that time forward.
After defendant was taken into custody by the APD officers, he was transported to a
federal facility, namely the FBI District Office, for questioning. The Form USM-41 that FBI
Agent Goeden filled out the evening of March 5, 2009, listed defendant as a federal prisoner
who was being remanded to the Anchorage Correctional Complex.130 And, the ACOMS
Legal Status Listing for defendant indicates that he was a “federal inmate” from March 5,
2009 through June 28, 2010.131 This is the most telling evidence as to which sovereign had
primary jurisdiction of defendant after his arrest on the evening of March 5, 2009. This
evidence plainly establishes that by the time defendant was taken to the Anchorage
130Form USM-41, Exhibit A, Liedike Form USM-41 Declaration, Docket No. 468.
131Exhibit B, Liedike ACOMS Declaration, Docket No. 469.
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Correctional Complex on the evening of March 5, 2009, defendant was a federal prisoner,
in the control and custody of the federal government.
Defendant’s Location History Listing is also evidence that defendant was a federal
prisoner, and not a state prisoner, when he was brought to the Anchorage Correctional
Complex on the evening of March 5, 2009. The Location History Listing indicates that on
March 5, 2009, defendant was in the Anchorage Correctional Complex on “Hold-US-
Marshal,”132 which Liedike avers meant that defendant was “remand[ed] into federal
custody. . . .”133
Although defendant contends that this entry meant that the federal government was
putting a detainer on him, defendant offers no evidence to support this contention.
Defendant seems to suggest that the affidavit to revoke and exonerate his bond in state court
is such evidence. As set out above, that affidavit stated that defendant had been “taken into
custody and is under a federal hold at this time.”134 But this affidavit only repeats the
information that was in defendant’s Location History Listing. It does not indicate that a
federal detainer had been placed on defendant.
Other evidence also indicates that the federal government acquired primary
jurisdiction almost immediately after defendant was arrested by APD officers on March 5,
132Exhibit B to Amended § 2255 Petition, Docket No. 459.
133Liedike ACOMS Declaration at 2, ¶ 4, Docket No. 469.
134Affidavit to Revoke and Exonerate Bond, Exhibit A at 1, Response in Opposition
to Defendant Sabil Mujahid’s Motion under 28 U.S.C. § 2255, Docket No. 465.
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2009. Defendant made his initial appearance in federal court and was ordered detained for
trial before his scheduled arraignment in state court for violating his bail conditions in the
state controlled substance case. Although defendant avers that he made numerous
appearances in state court during the relevant time, he did so pursuant to a detainer the State
of Alaska filed with the Marshals Service on June 23, 2009.135 As Liedike avers, “[t]he
USMS would only receive a detainer on an inmate if that inmate were in federal primary
custody at the time.”136 In other words, if defendant had been a state prisoner during the time
period of May 2009 through May 2010, as he contends, then there would have been no need
for the State of Alaska to file a detainer on June 23, 2009.
Further proof that defendant was being “borrowed” by the State of Alaska during the
relevant time, as opposed to the State of Alaska having primary jurisdiction, can be found in
defendant’s Form USM-129. This form shows that on December 21, 2009, defendant’s
custody status changed to “RL-Writ” and that this status continued to June 28, 2010.137 The
remark accompanying this status change reads: “Fed Primary/RL - Writ SOA[.]”138 As
135Form USM-129, Exhibit A at 2, Liedike Form USM-129 Declaration, Docket No.
470.
136Liedike Form USM-129 Declaration at 2, ¶ 4, Docket No. 470.
137Form USM-129, Exhibit A at 8, Liedike Form USM-129 Declaration, Docket No.
470.
138Id.
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Liedike avers, “[t]his entry means that [defendant] was a federal inmate that the State of
Alaska was b[o]rrowing on Writ for his state case. . . .”139
Defendant argues that if the State of Alaska were borrowing him on a writ from
December 21, 2009 through June 28, 2010, then the federal government waived or
relinquished its primary jurisdiction during this time. “Relinquishment, however, does not
occur when one sovereign borrows a prisoner from another sovereign through a writ of
habeas corpus.” Felix v. United States, Case Nos. 08CV0660, 06CR1948 BTM, 2008 WL
4534044, at *5 (S.D. Cal. Oct. 6, 2008) (citing Taylor, 164 F.3d at 445-46).
Defendant cites to United States v. Collier, Case No. 00-3970, 2002 WL 257211 (6th
Cir. Feb. 20, 2002), in support of his argument that he was a state prisoner, and not a federal
prisoner, between March 5, 2009 and June 28, 2010. There, on December 13, 1999, the
defendant was arrested by officers of a local police department and a United States Deputy
Marshal. Id. at *1. “At the time of his arrest, two arrest warrants had been issued for the
defendant: a state arrest warrant for parole violation, and [a] federal arrest warrant for bank
robbery.” Id. After his arrest, the defendant was taken to the county jail, “where he was
booked on the state probation violation charge” by the local police department, “though the
jail paperwork included a detainer for the federal charge.” Id. The next day, the defendant
was taken by federal agents to federal court for a hearing. Id. The defendant was taken to
federal court several days later for a second hearing. Id. The defendant pled guilty to the
139Liedike Form USM-129 Declaration at 3, ¶ 6, Docket No. 470.
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federal charges on May 30, 2000 and to the state charges on July 19, 2000. Id. The
defendant filed a motion in federal district court asking the court to determine that the federal
government had primary jurisdiction. Id. “At sentencing, the district court ruled orally that
primary jurisdiction rested with the state because the defendant was booked as a state
prisoner at the time of his arrest.” Id. On appeal, the Sixth Circuit declined to “decide the
legal issue of whether primary jurisdiction . . . was initially state or federal since the United
States ha[d] clearly waived primary jurisdiction in Collier’s case.” Id. at *2. The Sixth
Circuit found that “[a]t no point during or immediately after the arrest did the United States
demonstrate its intention to assert primary jurisdiction over the defendant.” Id. In particular,
the Sixth Circuit noted that “in the opinion of the United States Attorney’s office, the
defendant is and ‘always has been,’ a state prisoner.” Id.
Here, much the same is true but in reverse. In Collier, after the defendant’s arrest, the
federal government did nothing to indicate that it intended to assert primary jurisdiction over
the defendant. Here, after defendant’s arrest, the State of Alaska did nothing to indicate that
it intended to assert primary jurisdiction over the defendant. Rather, the federal government
demonstrated its intention to assert primary jurisdiction over defendant immediately after
defendant’s arrest. Defendant was transported to a federal facility for questioning prior to
being taken to the Anchorage Correctional Complex. FBI Agent Goeden indicated that
defendant was a federal prisoner on the form presented to the Department of Corrections
when defendant was brought to the Anchorage Correctional Complex. Defendant was not
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booked on any state charges the evening of his arrest and he appeared in federal court on the
federal felon in possession charge before he made any appearances in state court for violating
the conditions of his bail in the state controlled substance case. And finally, the United
States has taken, and continues to take, the position that defendant was a federal prisoner, not
a state prisoner, from March 5, 2009 onward.
In sum, the evidence in the record conclusively establishes that defendant was a
federal prisoner under the primary jurisdiction of the federal government during the relevant
time period of May 2009 through May 2010. An evidentiary hearing on this issue is thus not
required. See United States v. Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000)
(quoting 28 U.S.C. § 2255) (“[w]hen a prisoner files a § 2255 motion, the district court must
grant an evidentiary hearing ‘[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief’”). The only evidence that
supports defendant’s contention that he was a state prisoner during the relevant time is
defendant’s averments, averments which are “palpably incredible[,]” in light of the
documentary evidence to the contrary. Shah, 878 F.2d at 1158 (citation omitted).
Defendant’s § 2255 motion is denied as to Claim One.
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Claim Two
Defendant argues that plaintiff violated the principle of comity in prosecuting him
for offenses that occurred while he was in state custody. “Determination of priority of
custody and service of sentence between state and federal sovereigns is a matter of comity
to be resolved by the executive branches of the two sovereigns.” United States v. Warren,
610 F.2d 680, 684 (9th Cir. 1980). “Normally, the sovereign which first arrests an individual
acquires priority of jurisdiction for purposes of trial, sentencing, and incarceration.” Id. at
684-85. If the State of Alaska had primary jurisdiction from May 2009 through May 2010,
then defendant argues that prosecution of him for federal sex offenses violated the principle
of comity. As discussed above, however, the evidence in the record conclusively establishes
that the federal government had primary jurisdiction during the relevant time.
Defendant’s § 2255 motion as to Claim Two is denied.
Claim Three
Defendant argues that the government withheld material, exculpatory evidence
showing that he was a state prisoner between May 2009 and May 2010. “In Brady v.
Maryland, the Supreme Court held that ‘the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecu-
tion.’” Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015) (quoting Brady v.
Maryland, 373 U.S. 83, 87 (1963)). “Evidence is in possession of the government if it is in
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possession of cooperating agencies, or if the prosecutor has knowledge of and access to the
documents.” United States v. McDavid, Case No. CR S–06–35 MCE, 2007 WL 926664, at
*2 (E.D. Cal. March 27, 2007) (internal citations omitted). “Evidence is material if ‘there
is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome.’” Paradis v. Arave, 240 F.3d 1169, 1176
(9th Cir. 2001) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
Defendant first argues that plaintiff withheld a March 5, 2009, detainer. Defendant
avers that “jail paperwork” showed that plaintiff filed such a detainer.140 It is not entirely
clear what “jail paperwork” defendant is referring to although at times he makes reference
to his Exhibit B, which is the ACOMS Location History Listing. As set out above, the
March 5, 2009 entry on the Location History Listing indicates that defendant was in the
Anchorage Jail on a “Hold–US-Marshal[.]”141 As discussed above, defendant contends that
this notation meant that the federal government had put a detainer on him so that he could
not be released from state custody on bail.
A “detainee” is “a person held in custody, confined, or delayed by an authority, such
as law enforcement or a government.”142 Use of the term “detainee” is not informative as
140Mujahid Declaration at 4, ¶ 20, Docket No. 438.
141Exhibit B to Amended § 2255 Motion, Docket No. 459.
142Black’s Law Dictionary at 513 (9th ed. 2009).
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regards the identity of the law enforcement or governmental agency having legal custody of
a defendant. The term in question at this point (“Hold–US-Marshal”) certainly suggests that
defendant was being detained by federal authorities. But the entry in question comes from
Anchorage Correctional Complex records, the purpose of which is to record a defendant’s
physical location, not his legal status.143 Thus, the “Hold–US-Marshal” entry in defendant’s
location history list is no evidence of an undisclosed federal detainer. Rather, the evidence
of defendant’s custodial status is to be found in defendant’s Legal Status Listing which
indicated that he was a “federal inmate” from March 5, 2009, through June 28, 2010.144
Other evidence before the court is consistent with defendant’s custodial status being
that of a federal prisoner and is consistent with the court’s conclusion that there was no
undisclosed federal detainer of defendant. First, defendant was removed to and arraigned in
federal court on March 6, 2009. There is no evidence of plaintiff having secured a writ of
habeas corpus or consent of the state which would have been necessary had defendant been
a state prisoner.
Second, on March 5, 2009, as documented by the Form USM-41,145 defendant was
placed in the custody of the Anchorage Correctional Complex by federal authorities. There
is no record of the State of Alaska having placed defendant in the Anchorage Correctional
143Liedike ACOMS Declaration at 3-4, ¶¶ 5, 6 and 10, Docket No. 469.
144Exhibit B, Liedike ACOMS Declaration, Docket No. 469.
145Form USM-41, Exhibit A, Liedike Form USM-41 Declaration, Docket No. 468.
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Complex on March 5, 2009. Moreover, on June 23, 2009, the State of Alaska issued and
lodged with the United States Marshal a detainer of defendant with respect to his state
charges.146 The fact that the State of Alaska placed a detainer as to defendant is strong
evidence, as established by other records, that defendant was at all times relevant to this case
a federal prisoner; and, therefore, there is no reason to believe that there was an undisclosed
federal detainer of defendant.
Defendant also argues that plaintiff withheld a June 23, 2010 Remand Detainer and
Memorandum. Defendant avers that this document was attached to the notice of a June 23,
2010 special re-classification hearing, the purpose of which was “to have [him] placed in
segregation [at] the order[] of Assistan[t] Attorney General Daniel Cooper.”147 Defendant
also contends that this document was issued by plaintiff “to have [him] place[d] in federal
custody.”148 There is, however, no evidence to support defendant’s contention that this
document exists.
Defendant has not been able to produce this document, and plaintiff has offered
evidence that the June 23, 2010 document to which defendant refers does not exist in the
146Form USM-129, Exhibit A at 2, Liedike Form USM-129 Declaration, Docket
No. 470.
147Mujahid Declaration at 3-4, ¶¶ 13, 15, Docket No. 480.
148Mujahid Declaration at 5, ¶ 22, Docket No. 438.
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Marshals Service’s files.149 Defendant contends that there was a recorded segregation
hearing on or about June 23, 2010. By minute order of May 18, 2018, the court requested
that defendant produce a transcript of this hearing or other evidence of such a hearing.150
Defendant sought and was granted additional time within which to respond to the court’s
request. Although defendant produced some records from the Department of Corrections in
response to the May 18, 2018 minute order, he did not produce a transcript of the hearing or
any other evidence that a hearing was held on or about June 23, 2010. Rather, the
Department of Corrections records show that defendant was placed in administrative
segregation on May 27, 2010 and that a segregation hearing was held on June 8, 2010.151
These records do not show that segregation of defendant within the Anchorage Correctional
Complex had anything to do with the issue of which sovereign had primary custody of
defendant.
But even if the June 23, 2010, document existed, it would not be material. Defendant
seems to think that the June 23, 2010, document, if it existed, would be evidence that he was
a state prisoner prior to June 23, 2010. But given all the evidence in the record that
149Liedike “Remand Detainer” Declaration at 2, ¶¶ 2-5, Docket No. 490.
150Docket No. 482 at 2.
151Administrative Segregation Admission at DOC 08099; Administrative Segregation
Classification Form at DOC 08905; both attached to Amended Defendant’s Response to
Court Order [etc.], Docket No. 488.
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defendant was a federal prisoner from the evening of March 5, 2009 onward, this document,
even if there were some evidence that it existed, would not alter the outcome here.
Defendant has the burden of proving a Brady violation. United States v. Si, 343 F.3d
1116, 1122 (9th Cir. 2003). Defendant has not met his burden.
Defendant’s § 2255 motion is denied as to Claim Three.
Claim Four
Defendant argues that his trial counsel rendered ineffective assistance. “To establish
ineffective assistance of counsel under Strickland, a prisoner must demonstrate both: (1) that
counsel’s performance was deficient, and (2) that the deficient performance prejudiced his
defense.” Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2013). “The first prong of the
Strickland test—deficient performance—requires a showing that counsel’s performance fell
below an objective standard of reasonableness or was outside the wide range of profession-
ally competent assistance[.]” Id. (internal citations omitted). “The second prong of the
Strickland test—prejudice—requires the petitioner to demonstrate a reasonable probability
that, but for counsel’s unprofessional errors, the result of the [trial] would have been
different.” Id. at 486-87 (citation omitted).
Defendant first argues that his trial counsel rendered ineffective assistance by failing
to file a motion to dismiss on the ground that the statutes of conviction were unconstitutional
as applied to him. As discussed above, the record conclusively establishes that defendant
was a federal prisoner between May 2009 and May 2010. Because defendant was a federal
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prisoner, the statutes of conviction were constitutionally applied to him. There was no basis
for his trial counsel to file the suggested motion to dismiss.
Defendant also argues that his trial counsel rendered ineffective assistance because
he failed to obtain evidence of the federal government’s March 5, 2009 detainer and the June
23, 2010 “Remand Detainer and Memorandum.” Defendant argues that if his trial counsel
would have obtained these documents and filed a motion to dismiss based on these
documents, it is likely that he would not have been convicted of the federal sex offenses
charges. But, as discussed above, if these documents existed, they would not have been
material. Thus, there would have been no basis for defendant’s trial counsel to attempt to
obtain these documents.
Defendant’s ineffective assistance of counsel claim fails on the first prong of the
Strickland test. Defendant has not shown that his trial counsel’s performance was deficient.
Defendant’s § 2255 motion is denied as to Claim Four.
Conclusion
After careful consideration of all the evidence submitted by the parties, including
defendant’s affidavits, the court denies defendant’s request for an evidentiary hearing and
denies defendant’s § 2255 motion.
DATED at Anchorage, Alaska, this 9th day of August, 2018.
/s/ H. Russel Holland
United States District Judge
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