Petition for Writ of Certiorari — Robert Edward Torres, Petitioner v. United States

Supreme Court briefJan 26, 2018

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NO. ____________

____________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

______________________

UNITED STATES OF AMERICA,

Respondent,

vs.

ROBERT EDWARD TORRES,

Petitioner.

_______________________

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_______________________

ROBERT L. SWAIN

Attorney at Law

California Bar No. 144163

964 Fifth Avenue, Suite 214

San Diego, California 92101

Telephone: (619) 544-1494

email: rls11@aol.com

Attorney for Petitioner

QUESTION PRESENTED FOR REVIEW

WHETHER THE LOWER COURT ERRED BY FAILING TO ISSUE A

CERTIFICATE OF APPEALABILITY BECAUSE THERE WERE DEBATABLE

QUESTIONS AS TO WHETHER (1) THE GOVERNMENT VIOLATED

PETITIONER’S FIFTH AMENDMENT RIGHT TO DUE PROCESS WHEN IT

WITHHELD MATERIAL IMPEACHMENT EVIDENCE REGARDING ITS STAR

WITNESS AND THEN CONTRADICTED THE WITHHELD EVIDENCE IN

CLOSING ARGUMENT (BRADY CLAIM); AND (2) THE GOVERNMENT

VIOLATED PETITIONER’S FIFTH AMENDMENT RIGHT TO DUE PROCESS

WHEN IT ELICITED AND ENCOURAGED FALSE TESTIMONY AND THEN

REPEATED THE FALSE TESTIMONY IN CLOSING ARGUMENT (NAPUE

CLAIM).

Prefix.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . Prefix

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

WHY GRANTING OF WRIT IS OF VITAL IMPORTANCE . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED IN

THIS CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

THE PETITION SHOULD BE GRANTED BECAUSE IT WAS ERROR

NOT TO ISSUE A CERTIFICATE OF APPEALABILITY. . . . . . . . . . . . . 9

The Petitioner Has Made a Substantial Showing of the Denial of his

Constitutional Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Issues Raised by the Petitioner are Exactly of the Type that are

Reviewable under the Slack v. McDaniel Test. . . . . . . . . . . . . . . . 10

-i-

TABLE OF CONTENTS CONTINUED

PAGE

Petitioner’s Brady Claim is Fairly Debatable Among Jurists of

Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Petitioner’s Napue Claim is Fairly Debatable Among Jurists of

Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. . . . . . . . . . . . 27

PROOF OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

APPENDICES

District Court Order Denying Motion Under 28 U.S.C. §2255 . . . . 29

District Court Order Denying Certificate of Appealability. . . . . . . . 48

Ninth Circuit Order Denying Certificate of Appealability. . . . . . . . . 51

Ninth Circuit Order Denying Motions for Recommendation . . . . . 53

-ii-

TABLE OF AUTHORITIES

FEDERAL CASES

Jones v. Ryan,

691 F.3d 1093 (9th Cir. 2012) cert. denied, 133 S. Ct. 2831, 186 L. Ed. 2d 890

(2013);. ......................................................................................................... 20, 21

Barefoot v. Estelle,

463 U.S. 880 (1984). ............................................................................................ 11

Beardslee v. Brown,

393 F.3d 899 (9th Cir. 2004). ............................................................................... 12

Brady v. Maryland,

373 U.S. 83 (1963). ................................................................. 13, 14, 15, 18, 19, 22

Buck v. Davis,

No. 15-8049 (2017). ............................................................................................. 12

Dow v. Virga,

729 F.3d 1041 (9th Cir. 2013). ............................................................................. 21

Drake v. Portuondo,

553 F.3d 230 (2d Cir. 2009). ................................................................................ 22

Giglio v. United States

405 U.S. 150 (1972). .......................................................................................... 14

Hayes v. Brown,

399 F.3d 972 (9th Cir. 2005) . .............................................................................. 26

Hubbard v. Houghland,

471 F. App'x 625 (9th Cir. 2012). ........................................................................ 17

Jennings v. Woodford,

290 F.3d 1006 (9th Cir.2002). .............................................................................. 12

-iii-

TABLE OF AUTHORITIES CONTINUED

Kyles v. Whitley,

514 U.S. 419, 115 S. Ct. 1555 (1995) . ................................................................. 14

Lambright v. Stewart,

220 F.3d 1022 (9th Cir. 2000). ............................................................................. 12

Miller-El v. Cockrell,

537 U.S. 322 (2003). ............................................................................................ 12

Napue v. Illinois,

360 U.S. 264 (1959). .................................................................................. 6, 10, 20

Slack v. McDaniel,

529 U.S. 473 (2000). .............................................................................. 7, 8, 11, 25

United States v. Agurs,

427 U.S. 97, 96 S. Ct. 2392 (1976). ...................................................................... 15

United States v. Bagley,

473 U.S. 667 (1985). ............................................................................................ 15

United States v. Bigeleisen,

625 F.2d 203 (8th Cir. 1980). ............................................................................... 25

United States v. Blanco,

392 F.3d 382 (9th Cir. 2004). ............................................................................... 15

United States v. Freeman,

650 F.3d 673 (7th Cir. 2011). ......................................................................... 21, 23

United States v. Houston,

648 F.3d 806 (9th Cir. 2011). ............................................................................... 22

United States v. Price,

566 F.3d 900 (9th Cir. 2009). ............................................................................... 15

-iv-

TABLE OF AUTHORITIES CONTINUED

FEDERAL STATUTES

21 U.S.C. 841(a)(1). ............................................................................................... 8

21 U.S.C. § 952...................................................................................................... 8

21 U.S.C. § 960...................................................................................................... 8

28 U.S.C. § 1254(1). .............................................................................................. 3

28 U.S.C. § 2253. ................................................................................... 3, 5, 10, 11

28 U.S.C. § 2255. ........................................................................ 3, 6, 13, 14, 16, 20

U.S. Const. amend. V . ........................................................................................... 5

U.S. Const. amend. VI. ........................................................................................... 5

-v-

NO. ____________

____________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

______________________

UNITED STATES OF AMERICA,

Respondent,

vs.

ROBERT EDWARD TORRES,

Petitioner.

_______________________

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_______________________

The Petitioner, Robert Edward Torres, respectfully prays that a writ of

certiorari issue to review the judgment of the United States Court of Appeals for the

Ninth Circuit entered on September 6, 2017, and November 8, 2017.

OPINION BELOW

On September 6, 2017, the Court of Appeals filed an unpublished decision

denying Mr. Torres a certificate of appealability. A copy of the decision is attached

to this petition as Appendix "C".1 Appellant timely filed a motion for reconsideration,

and on November 8, 2017, an order denying rehearing was entered. The order is

attached as Appendix “D”. The original order of the District Court denying the

petition for writ of habeas corpus is attached as Appendix “A”, and the order of the

District Court denying the certificate of appealability is attached as Appendix “B.”

JURISDICTION

On September 6, 2017, and November 8, 2017, the court of appeals issued a

decision denying a certificate of appealability. The district court had jurisdiction over

appellant’s habeas corpus petition under 28 U.S.C. § 2255. The Court of Appeal has

jurisdiction over the appeal from the denial of appellant’s habeas corpus petition

under 28 U.S.C. § 2253(a). The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

WHY GRANTING OF WRIT IS OF VITAL IMPORTANCE

Petitioner, Robert Edward Torres, seeks relief through a grant of writ of habeas

corpus based on the fact he was convicted after a trial in which the government not

only withheld material impeachment evidence regarding its star witness, but elicited

false testimony regarding that witness’s motive to lie, and then argued those falsities

No other petitioner is involved in this petition.

repeatedly in closing argument. Petitioner has unequivocally shown that the

government’s star witness – whom the government repeatedly stated would be

serving fifteen years in custody despite testifying – walked free just one month after

trial. Because even the known facts (i.e., without habeas discovery) are so stark and

should facially establish Brady and Napue violations, they are at a minimum

sufficient to warrant a certificate of appealability (“COA”).

The lower court denied a certificate of appealability on these issues after

concluding that petitioner had “not made a “substantial showing of the denial of a

constitutional right.” Because petitioner believes that decision failed to take into

account dispositive factual and legal arguments in his favor, he requests the petition

be granted in order to avoid this unfair result.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS CASE

U.S. Const. amend. V:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, . . . nor shall any person. . . be compelled in any criminal

case to be a witness against himself, nor be deprived of life,

liberty, or property without due process of law.

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall enjoy the right ...

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him... and to have the

Assistance of Counsel for his defence.

28 U.S.C. § 2253:

The standard to determine whether a certificate of appealability

should issue under 28 U.S.C. § 2253(c)(2) is that the petitioner

make a “substantial showing of the denial of a constitutional

right.”

STATEMENT OF THE CASE

On August 16, 2010, Petitioner filed motions for (1) a new trial, and (2)

judgment notwithstanding the verdict. [CR 229.] These motions were based primarily

on ineffective assistance of counsel and government misconduct. The district court

denied these motions on December 17, 2010. [CR 244.] On July 18, 2011, the court

entered judgment against Mr. Torres and sentenced him to ten years imprisonment

and five years of supervised release. [CR 254.]

On July 27, 2011, Petitioner filed a notice of appeal and submitted his opening

brief on appeal on April 17, 2012. There, in relevant part to this motion, he argued

that (1) the government withheld material impeachment evidence concerning Wilske

and the future of his state sentence; (2) the government elicited and permitted false

testimony from Wilske regarding his state and federal sentences and affirmatively

misled the jury in closing argument regarding Wilske’s motivation for testifying

against Petitioner, and (3) his trial attorney rendered ineffective assistance of counsel.

On February 7, 2013, the Ninth Circuit affirmed Mr. Torres’ conviction, in part,

because the record was not sufficiently developed to decide the issues. On that point,

this Court noted, “The record is not sufficiently developed to permit us to resolve

these issues on direct appeal. Thus, while we affirm the judgment of conviction, we

do so without prejudice to the filing of a motion pursuant to 28 U.S.C. § 2255.” On

May 16, 2013, Petitioner filed a petition for writ of certiorari with the United States

Supreme Court, which the Court denied on May 28, 2013.

On May 20, 2014, Petitioner filed a timely motion in the district court to vacate

his conviction and sentence under 28 U.S.C. 2255. [CR 283.] There, he argued that

(1) the government violated Brady v. Maryland when it withheld material evidence

regarding Wilske’s state sentence and then misrepresented the nature of that sentence

at trial; (2) the government violated Napue v. Illinois when it elicited and permitted

false testimony from Wilske regarding his state and federal sentences and then

repeated those falsehoods in closing argument, and (3) defense counsel committed

ineffective assistance of counsel. Petitioner also highlighted this Court’s comments

suggesting the need for a more-developed record and requested the court order habeas

discovery and/or conduct an evidentiary hearing.

On February 3, 2017, the district court filed an order denying Petitioner’s §

2255 motion on all grounds. [CR 299.] The court found (1) there was no Brady

violation because the government did not withhold evidence suggesting Wilske could

receive less than seven years for his state case [Ord. at 7-8]; (2) there was no Napue

violation because Wilske did not know with certainty exactly how much reduction he

would receive for testifying [Id. at 10-11]; (3) there was no Napue violation because

the prosecutor could not have predicted Wilske would receive less than seven years

in his state case [Id. at 11-12]; (4) there was no Napue violation because Wilske had

been impeached on other points [Id. at 12]; (5) defense counsel was not ineffective

because he may have had a strategic reason for not challenging the seven year state

sentence and impeached Wilske on other grounds [Id. at 15-17], and (6) that

Petitioner had not shown habeas discovery might produce any evidence to support his

claims. [Id. at 12, n. 2.]

On February 14, 2017, Petitioner filed a notice of appeal regarding the § 2255

denial. [CR 300.] On March 13, 2017, Petitioner filed a motion for a COA in the

district court, highlighting the crucial questions of misconduct that remained

unanswered and specifying why all claims were fairly debatable under the Slack v.

McDaniel test. [CR 302.] After the Ninth Circuit directed the district court to take

action regarding the COA, the district court issued a two page order denying a COA,

summarily concluding, “Petitioner has not made a substantial showing that he was

denied a constitutional right and the Court is not persuaded that jurists could disagree

with the Court’s resolution of his claims or that the issues presented deserve

encouragement to proceed further.” [CR 304.] The order did not offer any specificity

as to how any of the issues did not meet the Slack standard.

On September 6, 2017, the Ninth Circuit Court of Appeal denied the certificate

of appealability. On November 8, 2017, the Ninth Circuit denied the petitioner’s

motion to reconsider the denial of the issuance of certificate of appealability.

This petition follows.

STATEMENT OF FACTS

Petitioner’s case began when he was arrested on July 15, 2008, under suspicion

of being involved in a marine marijuana smuggling venture. [CR 1.] The government

thereafter filed a two-count indictment against Petitioner on July 17, 2008, charging

one count of knowingly importing 1,000 kilograms or more of marijuana in violation

of 21 U.S.C. §§ 952, 960, and one count of knowingly possessing with intent to

distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. 841(a)(1).

[CR 11.]

At trial, the government’s theory was that Petitioner purchased a boat that

sailed from Mexico to the United States carrying marijuana. Petitioner maintained he

was merely a broker for the seized boat. The government’s star witness was Scott

Wilske, who testified he was hired to drive a boat containing marijuana to San Diego,

California, and that he met Petitioner in the course of that venture. Wilske was

therefore the only witness to directly implicate Petitioner. Ultimately, the jury

deadlocked and Petitioner’s retrial began three months later, on February 9, 2010.

[CR 172.]

There, the government again called Wilske, who was facing time for his

conduct in both state and federal court. In state court, Wilske was facing a sentence

for violating probation but the court left open questions of whether he was still on

probation and what his sentence would be until after he testified at Petitioner’s retrial.

In federal court, Wilske had signed a cooperation addendum that explicitly stated the

government would consider recommending a downward sentencing departure in

exchange for his testimony against Petitioner. Despite these two facts, the government

elicited from Wilske that he was unequivocally going to receive eight years on his

federal case and seven years consecutive on his state case. The government then

repeated these falsehoods in closing argument, at one point asking the jury, “So tell

me what he [Wilske] got away with?” The jury convicted Petitioner on both counts.

[CR 175.]

But Wilske did not serve any additional time. Instead, he was given timeserved on his federal case and received no time on his state case. He walked free one

month after the government told the jury he would definitely be getting fifteen

years.

ARGUMENT

THE PETITION SHOULD BE GRANTED BECAUSE IT WAS ERROR

NOT TO ISSUE A CERTIFICATE OF APPEALABILITY

The Petitioner Has Made a Substantial Showing of the Denial

of his Constitutional Rights.

The standard to determine whether a certificate of appealability should issue

under 28 U.S.C. § 2253(c)(2) is that the petitioner make a “substantial showing of the

denial of a constitutional right.” In his § 2255 motion, Petitioner raised, with

specificity and support, numerous due process violations under both Brady and

Napue. These violations stemmed from the government’s desire to protect it star

witness – Wilske – and its resulting misconduct. These issues – as revealed by the

panel’s reaction on direct appeal – are at a minimum fairly debatable among

reasonable jurists. Moreover, the district court’s order denying § 2255 relief reveals

several errors, including a misreading of Wilske’s state court record and an incorrect

reading of the trial transcripts.

Here, Petitioner has alleged denials of his Fifth Amendment right to due

process because of (1) the government’s withholding of impeachment evidence under

Brady v. Maryland and Giglio v. United States, and (2) the government’s elicitation

and allowance of false testimony as well as the repetition of that false testimony in

closing argument under Napue v. Illinois. Because Brady and Napue claims implicate

the denial of due process there should be no dispute they involve the denial of a

constitutional right.

The Issues Raised by the Petitioner are Exactly of the Type that are

Reviewable under the Slack v. McDaniel Test.

In Slack v. McDaniel, 529 U.S. 473, 484-84 (2000), the United States Supreme

Court held that the previously applicable “debatable among jurists of reason”

standard from Barefoot v. Estelle, 463 U.S. 880, 892-893 (1984), to determine a

“colorable showing of constitutional error,” was codified in the “substantial showing

of a denial of a constitutional right” language necessary for the issuance of a COA

under 28 U.S.C. § 2253(c)(2).

A claim denied by the district court on its merits warrants issuance of a COA

when it presents a “question of some substance.” Id. at 893 n.4 (quoting Gordon v.

Willis, 516 F. Supp. 911, 913 (ND Ga. 1980)). Questions of some substance include

those (1) that are “debatable among jurists of reason;” (2) “that a court could resolve

in a different manner;” (3) that are “adequate to deserve encouragement to proceed

further;” or (4) that are not “squarely foreclosed by statute, rule or authoritative court

decision, or ...[that are not] lacking any factual basis in the record.” Id.

Further, this threshold inquiry does not require full consideration of the factual

or legal bases adduced in support of the claim. In fact, the statute forbids it. When a

court side steps this process by first deciding the merits of an appeal, and then

justifies its denial of a COA based on its adjudication of the actual merits, it is in

essence deciding an appeal without jurisdiction. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). This Court has several times highlighted the minimal bar imposed to

obtain a COA, describing the standard as “relatively low” (Beardslee v. Brown, 393

F. 3d 899, 901 (9th Cir. 2004)), and “modest” – requiring only that “the issues are

debatable among jurists of reason.” Lambright v. Stewart, 220 F.3d 1022, 1024-25

(9th Cir. 2000). This Court has also held that courts “must resolve doubts about the

propriety of a COA in the petitioner’s favor.” Jennings v. Woodford, 290 F.3d 1006,

1010 (9th Cir.2002).

Just recently, in Buck v. Davis, No. 15-8049, slip op. (2017), the Supreme

Court revisited the issue of COAs and the standard by which they should be granted

or denied. There, a petitioner who had been sentenced to death alleged IAC because

his counsel called a witness to testify the petitioner was more likely to commit further

crimes because of his race. Id. at p. 1. After the district court denied the petitioner’s

habeas motion, the Fifth Circuit denied his motion for a COA because he had not

shown “extraordinary circumstances” in the habeas context. Id. at 11-12. The

Supreme Court, however, criticized the Fifth Circuit’s approach and reversed. On this

point, the Court held that the Fifth Circuit had done exactly what Slack and Miller-El

prohibit – denying a COA because of a decision on the merits. See id. at 13-14.

Specifically, the Court reiterated,

The COA inquiry, we have emphasized, is not coextensive with a merits

analysis. At the COA stage, the only question is whether the applicant has

shown that “jurists of reason could disagree with the district court’s resolution

of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” This threshold

question should be decided without “full consideration of the factual or legal

bases adduced in support of the claims.” “When a court of appeals sidesteps

[the COA] process by first deciding the merits of an appeal, and then justifying

its denial of a COA based on its adjudication of the actual merits, it is in

essence deciding an appeal without jurisdiction.

Id. at 13 (citations omitted). Again echoing Miller-El, the Court held, "Thus, when

a reviewing court (like the Fifth Circuit here) inverts the statutory order of operations

and first decid[es] the merits of an appeal, . . . then justif[ies] its denial of a COA

based on its adjudication of the actual merits,’ it has placed too heavy a burden on the

prisoner at the COA stage." Id. at 14. In the end, the Court not only reversed the

denial of a COA but decided the petitioner’s case on the merits, holding he had

indeed received ineffective assistance of counsel. Id. at 17-20.

The Court should therefore issue a certificate of appealability as to the issues

raised in petitioner’s § 2255 motion, especially in light of the low bar imposed for a

Petitioner to obtain a COA under Slack and its progeny.

Petitioner’s Brady Claim is Fairly Debatable Among Jurists of Reason.

At trial, the government used Wilske’s state court proceedings as a means of

shoring up his credibility. Specifically, the government argued that because Wilske

would definitely be receiving a consecutive seven years in state court, he must have

testified out of the goodness of his heart, at one point claiming, “He [Wilske] is

getting away with nothing. Absolutely nothing.” There is evidence in the record,

however, that the government had evidence to the contrary but did not disclose it.

Petitioner’s § 2255 motion therefore raised the issue of whether the

government violated Brady v. Maryland, 373 U.S. 83 (1963) when it had information

that Wilske might not receive any time on his state court probation violation but (1)

did not disclose that information to the defense, and then (2) affirmatively argued

Wilske would definitely receive seven consecutive years in state court. Petitioner

noted it was the government that relied heavily on Wilske’s possible state court

sentence. Petitioner also noted the government’s case against him was anything but

strong, as evidenced by the hung jury at the first trial. Thus, Wilske’s credibility was

of central importance. This issue is, at a minimum, debatable among jurists of reason

under Slack. Moreover, it is an issue that (1) a court could resolve in a different

manner; (2) is adequate to deserve encouragement to proceed further; and (3) is not

squarely foreclosed by statute and is not lacking a factual basis in the record.

The body of Brady case law makes clear that a due process violation occurs

when the government knew – or should have known – about favorable evidence and

does not disclose it. See Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565,

(1995); United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397 (1976). The

defense need not request the exculpatory material for the prosecution's Brady duty to

attach. Agurs, 427 U.S. at 97. Moreover, the suppression of evidence favorable to the

defense violates due process irrespective of the good or bad faith of the prosecution.

Brady, 373 U.S. at 87. Favorable evidence includes evidence that would impeach the

prosecution's witnesses, including benefits the prosecution gives witnesses. United

States v. Bagley, 473 U.S. 667 (1985); see also United States v. Blanco, 392 F.3d 382,

387 (9th Cir. 2004) (“Impeachment evidence is exculpatory evidence within the

meaning of Brady.”) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Even

evidence that does not directly impeach, but tends to impeach a government witness,

is favorable to the accused and must be turned over to the defense. See United States

v. Price, 566 F.3d 900, 903 (9th Cir. 2009).

There are several reasons why Petitioner’s Brady claim is at least debatable.

First, the record gives rise to a reasonable conclusion that the government knew about

a January 26, 2010, state court hearing where the judge suggested Wilske may not

have even been on probation and could thus be receiving no time in state court.

Although AUSA Rebecca Young (the government trial prosecutor) now denies she

knew about that hearing2 , the circumstances surrounding that denial raise questions

about what Young knew about Wilske’s state proceedings and when she knew it. For

instance, in responding to Petitioner’s motion for new trial, Young appeared to

acknowledge the January 26 hearing by saying, “After that particular hearing, the

undersigned Assistant U.S. Attorney contacted the San Diego District Attorney’s

Office to inform them that, in fact, Wilske’s probation had not expired and that

Wilske could - and should - be sentenced to seven years’ custody once he served his

federal sentence.” Although Young now disputes she was referring to the January 26

hearing, additional facts suggest she did know about the hearing.

For instance, according to her own admission, Young was extensively involved

with Wilske’s state proceedings, even going so far as to draft pleadings for the D.A.

She also kept in close contact with the D.A. to keep tabs on the case. Given the depth

of her involvement, it defies logic that two weeks before Petitioner’s trial, when

Wilske had the January 26 state court hearing, Young would not have inquired of

someone – the state court, the D.A., or Wilske himself – as to what transpired at that

2/ The government submitted a declaration from Young, who is no longer with the U.S.

Attorney’s Office, as part of the § 2255 proceedings below.

hearing. It also defies logic that in the lead-up to Petitioner’s retrial, Young would not

have asked the D.A. or Wilske whether anything had happened in his state case and

thus known about the hearing. The 5K letter submitted by the government on

Wilske’s behalf, where Young stated Wilske would “likely” receive seven years in

state court, provides further evidence the government knew there was a question as

to Wilske’s ultimate sentence. It is thus at least debatable whether the facts show the

government knew about the January 26 hearing and suppressed that information in

an effort to mislead the jury as to Wilske’s credibility and motivation for testifying.

Though Young denies such knowledge in her declaration, that declaration cannot

function as a definite resolution of the issue, especially without an evidentiary

hearing. See Hubbard v. Houghland, 471 F. App'x 625, 626 (9th Cir. 2012) (“[O]ne

of the purposes of an evidentiary hearing is to ‘enable [ ] the finder of fact to see the

witness's physical reactions to questions, to assess the witness's demeanor, and to hear

the tone of the witness's voice.’ ”).

Second, even if Young did not specifically know about the January 26 hearing,

there was no reason to conclude Wilske was definitely going to receive seven

consecutive years. None of the state court hearings contained an unequivocal

statement that Wilske would receive such a sentence. Conversely, the government

admits it had the transcript of Wilske’s February 2008 hearing where the judge stated

he would “leave it [probation] to expire when its supposed to.” Based on that

statement alone the government should have known Wilske was no longer on

probation and might not receive any time, let alone seven consecutive years. Given

the information the government had regarding the uncertainty of Wilske’s state

sentence, it is fairly debatable whether the government violated Brady by not

disclosing that information and then stating the exact opposite at Petitioner’s trial.3

Lastly, the Court should consider the interplay between the “suppression”

prong of the Brady factors and the government’s conduct at trial. Namely, while there

is case law excusing the government’s non-disclosure of publicly available evidence,

that case law does not address a situation in which it is the government that creates

the importance of impeachment material and then fails to disclose it. The importance

of Wilske’s state sentence was not clear before the government made it so. Even if the

government could argue it initially had no duty to turn over information that Wilske

might not be receiving any state custody, that duty materialized once the government

In discussing the Brady issue, the district court's order states that "Wilske testified that

he believed he would serve seven years for violating his state probation, which is what the

Superior Court had advised him. These were factually correct statements." [Ord. at 6.] But

that is simply not true. First, Wilske did not merely testify that he “believed” he would

receive the seven years – he testified that he would receive seven years and that those seven

years would run consecutive. Second, Wilske was present at the January 26, 2010, hearing

at which the state court suggested Wilske may not have been on probation after all. Thus,

Wilske had firsthand knowledge that his state sentence was not certain and could even be

non-existent.

made the "seven consecutive years" in state custody an issue. It was the government,

on direct examination, that brought up Wilske's supposed guaranteed state sentence,

remarking,

Q: In fact, you have been to state court during the pendency of this case?

A: Yes, I have.

Q: And you have been told you are getting that seven years and that that

seven years is going to run consecutively to the sentence you get

here?

A: Yes, it will.

Whether purposely or recklessly, the government made the inaccurate and unilateral

decision that Wilske would definitely receive seven consecutive years on his state

sentence and then repeatedly emphasized that unfounded claim to the jury. Had it

merely not disclosed the possibility that Wilske would receive less than seven years

but kept silent on the issue, perhaps the government could claim ignorance. But the

government took the affirmative step of making that issue a key part of its case.

Because this situation is qualitatively different than the normal Brady situation, it is

inapposite whether the state hearings were publicly available or whether the

government was not positive Wilske would get less than seven years. The moment the

government decided to make the state sentence a centerpiece of its case, it assumed

a duty to investigate whether the claims it was making were true. At a minimum, the

government wasn’t positive Wilske would receive seven consecutive years, and that

is sufficient to sustain a Brady claim under these facts. At a minimum, Petitioner’s

Brady claim is fairly debatable and thus meets the Slack standard for granting a COA.

Petitioner’s Napue Claim is Fairly Debatable Among Jurists of Reason.

Compounding the non-disclosure of impeachment evidence on Wilske, the

government encouraged, elicited, and permitted, false testimony from Wilske

regarding his possible federal and state sentences. On direct and cross-examination,

Wilske testified that he would, without question, be receiving eight years in federal

court and seven consecutive years in state court. Rather than correct these falsehoods,

the government repeated them to its advantage in closing argument and rebuttal,

stating, “Mr. Wilske is going to pay for his crime. . . He is getting away with nothing.

Absolutely nothing.” The government used these falsehoods to depict Wilske as a

credible and upstanding citizen, even claiming, “He is the only one to man up . . . .”

Petitioner’s § 2255 motion therefore raised the issue of whether the

government violated Napue v. Illinois. On this issue, Petitioner’s arguments can be

generally separated into three categories: (1) the elicitation, encouragement, and

allowance of false testimony regarding Wilske’s state sentence; (2) the elicitation,

encouragement, and allowance of false testimony regarding the sentence Wilske’s

federal sentence and the nature of Wilske’s agreement with the government, and (3)

the government’s use of that false testimony in closing argument to vouch for

Wilske’s credibility. These sources of Napue error are fairly debatable among jurists

of reason both individually and cumulatively and thus warrant the grant of a COA

under Slack.

The attainment of a conviction by way of false evidence clearly violates the

U.S. Constitution. Napue v. Illinois, 360 U.S. 264 (1959); see also Jones v. Ryan,

691 F.3d 1093, 1102 (9th Cir. 2012) cert. denied, 133 S. Ct. 2831, 186 L. Ed. 2d 890

(2013); United States v. Freeman, 650 F.3d 673 (7th Cir. 2011). Indeed, the

Ninth Circuit has held that “[o]ne of the bedrock principles of our democracy,

‘implicit in any concept of ordered liberty,’ is that the State may not use false

evidence to obtain a criminal conviction.” Hayes v. Brown, 399 F.3d 972, 978 (9th

Cir. 2005). This violation occurs regardless of whether the government actively

solicited the false evidence, as it is present even when the government simply allows

such evidence to go uncorrected when it appears. Id.

The false evidence proscribed by Napue and its progeny is not limited to

factual misstatements about the alleged offense. Napue explicitly held that “[t]he

principle that a State may not knowingly use false evidence, including false

testimony, to obtain a tainted conviction . . . does not cease to apply merely because

the false testimony goes only to the credibility of the witness.” Id. at 269; Hayes v.

Brown, 399 F.3d 972, 986 (9th Cir. 2005) (“That the false evidence presented by the

State dealt only with credibility does not change the materiality calculus.”).

On the question of materiality, Napue sets a low bar, requiring defendants show

only that “ ‘false testimony could . . . in any reasonable likelihood have affected the

judgment of the jury . . . .’ ” Dow v. Virga, 729 F.3d 1041 (9th Cir. 2013) (quoting

Giglio, 405 U.S. at 153) (emphasis added). The standard is thus even less stringent

than under Brady, “ ‘[N]ot just because [such cases] . . . involve prosecutorial

misconduct, but more importantly because they involve a corruption of the

truth-seeking function of the trial process.’ ” Drake v. Portuondo, 553 F.3d 230, 241

(2d Cir. 2009) (quoting Agurs, 427 U.S. at 104); see also Dow, 729 F.3d at 1048

(“This materiality standard is, in effect, a form of harmless error review, but a far

lesser showing of harm is required under Napue's materiality standard than under

ordinary harmless error review.”). Moreover, although Napue does not require the

government actually knew the testimony was false, where the defendant can show

such knowledge, materiality becomes nearly moot: “[I]f it is established that the

government knowingly permitted the introduction of false testimony reversal is

virtually automatic.” See United States v. Houston, 648 F.3d 806 (9th Cir. 2011).

Here, each source of Napue error gives rise to reasonable debate. Regarding

Wilske’s state sentence, as noted above, there is a legitimate question as to what the

government knew regarding Wilske’s state proceedings and the January 26 hearing.

Aside from that factual issue, however, it is legally inapposite under Napue and

related precedent whether the government or Wilske knew for a fact that he would

ultimately receive no time in state court or that he might at least receive a reduction.

The operative fact is that the government knew there was not an absolute certainty

Wilske would receive the full seven years but elicited and argued the exact opposite

at trial.

As noted in United States v. Freeman, 650 F. 3d 673, 679-80 (7th Cir. 2011),

“Napue does not require that the witness could be successfully prosecuted for perjury.

In this area of the law, the governing principle is simply that the prosecutor may not

knowingly use false testimony. This includes ‘half-truths’ and vague statements that

could be true in a limited, literal sense but give a false impression to the jury.”

(citation omitted). Thus, at the moment the government permitted Wilske to testify

that he was, – without question – going to receive seven consecutive years in state

court, the Napue error was consummated. In fact, although the word “consecutive”

did not appear anywhere in any of Wilske’s state hearings, the government

repeatedly told the jury Wilske would receive seven consecutive years. The district

court’s order does not even mention the “consecutive” issue, let alone explain why

it should not constitute an independent Napue violation. At a minimum, it is

debatable whether Wilske’s testimony and the government’s conduct gave the jury

a false impression.

Regarding the federal sentence, even though Wilske signed a cooperation

addendum that explicitly allowed to obtain a lowered sentencing recommendation

from the government, Wilske testified that he was definitely going to receive eight

years in federal court. That testimony was false and it is therefore at least debatable

whether it violated Napue. The district court’s order forgives this false testimony by

finding, "[E]ven if the prosecutor and Wilske knew there was a possibility he could

receive further reduction in his federal sentence due to his testimony at trial, separate

from his plea agreement reduction, his testimony was not false because further

reduction was not a certainty." [Ord. at 10.] The most impeaching aspect of a

cooperation agreement, however, is that it does not promise a reduction or specify the

exact amount of a reduction – that is what provides the incentive for the witness to

testify falsely. The better a cooperator’s testimony is for the government the more

reduction he will receive. Here, however, Wilske testified that his only benefit was

the eight-year sentence he received as part of his plea agreement.4 The government

elicited that falsehood when it asked Wilske about his federal sentence on direct and

Wilske then solidified that notion later on direct, answering, “Because the [eight year]

deal is off if I don’t tell the truth. If I get caught lying, I don’t get any deal and it goes back

from ten years to life in prison.” Once again, the jury was led to believe the eight years

agreement was the only reason Wilske was testifying.

ultimately claimed, “So you have gone from 17 years to 15 years [federal plus state]?”

and remarked, “Still a lot of time?” That exchange falsely established the eight year

plea agreement was the only motivation for Wilske to testify. Napue proscribes those

very types of misleading exchanges.

Regarding closing argument, the government gladly took Wilske’s false

testimony and repeated it in a manner that depicted Wilske as a person who was

testifying out of the goodness of his heart and not in exchange for any type of

anticipated benefit. In closing and rebuttal, the government urged that Wilske (1) was

definitely receiving eight years on his federal case; (2) was definitely receiving seven

consecutive years on his state case; (3) was definitely receiving fifteen years total; (4)

was “getting away” with “absolutely nothing”, and (5) should be believed because he

was the “only one to man up.” These were the last comments the jury heard and left

no question as to the time Wilske would receive. As noted previously, a prosecutor’s

use of false testimony in closing argument makes the original Napue violation all the

more egregious. See United States v. Bigeleisen, 625 F.2d 203, 208 (8th Cir. 1980)

(finding a Napue violation where “the prosecutor capitalized on [the witness’s false]

testimony during closing argument.”). Even assuming, arguendo, that the government

was not required to clarify that Wilske might receive a sentencing reduction under his

cooperation addendum because the exact reduction had not been decided, the

government was prohibited from arguing that Wilske was definitely not going to

receive a benefit. Amazingly, the district court’s order does not even mentions the

false statements in closing argument, and thus offers no reason why they should not

be considered as an independent source of Napue error. The closing argument

misconduct alone constitutes a debatable issue under Slack.

Lastly, regarding materiality, Petitioner again notes that (1) Napue sets forth

a low bar, and (2) Wilske was integral to the government’s case. Wilske was the only

person to directly implicate Petitioner in the offense and the government’s own

comments at his sentencing made clear that he was an indispensable part of the

government’s case. It is reasonable to assume the government realized the hung jury

following Petitioner’s first trial was likely because of a distrust of Wilske, leading to

the government’s zealous protection of Wilske’s credibility at the retrial. It is fairly

debatable whether there is a reasonable likelihood the jury would have viewed Wilske

in a different light had it not been misled regarding Wilske’s motivation for testifying.

As the Supreme Court held in Napue, it is upon “subtle factors as the possible interest

of the witness in testifying falsely that a defendant's life or liberty may depend.” 360

U.S. at 269 (emphasis added).

Moreover, this Court has made clear that false testimony and prosecutorial

misconduct are not made harmless simply because a cooperating witness was

impeached on other grounds. See Hayes v. Brown, 399 F.3d 972, 987 (9th Cir. 2005)

(“It also does not matter that James was subject to impeachment on the basis of his

transactional immunity, drug addiction, and criminal record.”). Wilske’s motivation

for testifying was the most crucial ground for impeachment, and other instances of

impeachment could not correct the Napue violation on that issue. Individually and

cumulatively, these Napue error issues are debatable among jurists of reason and

therefore warrant the grant of a COA.

CONCLUSION

For the foregoing reasons, Robert Edward Torres respectfully requests that this

Court grant the petition for writ of certiorari, or summarily reverse with instructions

for the court of appeal to issue a certificate of appealability and rule on the merits of

the appeal.

Respectfully submitted,

/s/ Robert L. Swain

DATED: January 26, 2018

ROBERT L. SWAIN

Attorney at Law

964 Fifth Avenue, Suite 214

San Diego, California 92101

Telephone: (619) 544-1494

Facsimile: (619) 544-1473

Attorney for Petitioner Torres

NO. ____________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

UNITED STATES OF AMERICA

Respondent.

vs.

ROBERT EDWARD TORRES,

Petitioner.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Pursuant to Title 18, United States Code Section 3006A(d)(6) and Rule 39 of

this Court, Petitioner, Emilio Torres asks leave to file the attached Petition for Writ

of Certiorari to the United States Court of Appeals for the Ninth Circuit without

prepayment of fees or costs and to proceed in forma pauperis.

Petitioner was represented by counsel appointed pursuant to Title 18, United

States Code Section 3006A on appeal to the Ninth Circuit Court of Appeals.

Respectfully submitted,

/s/ Robert L. Swain

Dated: January 26, 2018

ROBERT L. SWAIN

Attorney at Law

Granger Building

964 Fifth Avenue, Suite 214

San Diego, California 92101

Telephone: (619) 544-1494

Attorney for Petitioner

NO. ____________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

UNITED STATES OF AMERICA,

Respondent.

vs.

ROBERT EDWARD TORRES,

Petitioner.

PROOF OF SERVICE AND DECLARATION OF COUNSEL

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

)

) ss.

)

ROBERT L. SWAIN, being first duly sworn, deposes and says:

Counsel is a member in good standing of the Supreme Court Bar and was court

appointed pursuant to Title 18, United States Code Section 3006A on appeal to the

Ninth Circuit Court of Appeals;

That on January 26, 2018, the petition for writ of certiorari and motion plus 10

copies in the above-entitled case were deposited in a United States Post Office

mailbox located in San Diego, California, with first class postage prepaid, properly

addressed to the Honorable William Sutter, Clerk of the Supreme Court of the United

States, One First Street, NE, Washington, D.C. 20543, and within the time allowed

for filing said petition;

That an additional copy of the petition, motion and the affidavit of proof of

mailing of the petition and motion was served on counsel for respondent on that same

date: The Honorable Noel Francisco, Solicitor General of the United States

Department of Justice Washington, D.C. 20530.

Dated at San Diego, California, this 26th day of January, 2018.

/s/ Robert L. Swain

Robert L. Swain

APPENDIX A

DISTRICT COURT ORDER DENYING

MOTION UNDER 28 U.S.C.§ 2255

Dated: February 3, 2017

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ROBERT EDWARD TORRES,

Civil No.: 14-CV-1293-L

Criminal No.: 08-CR-2559-L

Petitioner,

ORDER:

UNITED STATES OF AMERICA,

(1) DENYING MOTION TO

Respondent.

VACATE, SET ASIDE, OR

CORRECT SENTENCE PURSUANT

TO 28 U.S.C. § 2255 [ECF NO. 283];

(2) DENYING MOTION TO

CLARIFY SENTENCE WITHOUT

PREJUDICE [ECF NO. 298.]

Petitioner, Robert Edward Torres (“Petitioner”) filed a motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.C. § 2255 (“Motion” or “Mot”). The government

filed a Response in Opposition (“Opposition” or “Oppo”) to Petitioner’s Motion, and

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Petitioner has replied (“Reply”). The Court has reviewed the record, the submissions of

the parties, and the supporting exhibits. For the reasons set forth below, DENIES

Petitioner’s motion.

FACTUAL BACKGROUND

The pertinent facts for purposes of the current Motion are as follows: Early in 2008,

Petitioner used a false name to complete an all-cash purchase of a ship called the Sea

Explorer from Richard and Pam Griffin for seven times its estimated value. (Motion at 5

[ECF NO. 283]). Scott Wilske was the Sea Explorer’s pilot, and he occasionally did

maintenance work on the vessel. (Id. at 8) While Wilske was facing a seven year state

court sentence for violating probation after his conviction for assault with a firearm, he

was persuaded to cooperate with law enforcement in exchange for summary probation,

subject to revocation if he committed any further violation. (Opposition at 6-7). In May

2008, Wilske informed Immigration and Customs Enforcement Agent Rich that two men,

Jesus Beltran and Baldomar Flores, had asked him to pilot a boat carrying marijuana

from Mexico to the United States. (Petitioner’s Motion at 8.) Despite Agent Rich’s

warning that Wilske would serve his full seven year state sentence if he engaged in

further illegal conduct, Wilske agreed to pilot the boat.

The smugglers loaded marijuana into a secret compartment built into the vessel’s

upper deck. (Id.) Wilske sailed the Sea Explorer north, bound for a dock at a house in

Ventura, California. (Id.). However, the boat broke down en route, forcing Wilske and

his fellow smugglers to meet with Petitioner to arrange to repair the vessel. (Id. at 9).

Wilske returned to Mexico to speak with Petitioner, who telephoned a marine repair

company and arranged for its employees to tow the vessel to Shelter Island in San Diego,

California. (Opposition at 8 [ECF NO. 288.])

On July 18, 2008, the Sea Explorer was towed into the United States Customs Dock

located in San Diego, California. (Oppo. 5.) Immigration Customs Enforcement (“ICE”)

officials boarded the ship, drilled into its upper deck, and found 4,883 pounds of

marijuana. (Motion at 9 [ECF NO. 283]). ICE officials searched the surrounding area on

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Shelter Island for “spotters,” fellow members of the smuggling scheme already ashore in

order to conduct counter-surveillance on the authorities, and officials saw a nearby white

Mercedes SUV behaving suspiciously, stopped it, and discovered Petitioner. (Id.)

Petitioner was arrested in connection with the drug smuggling scheme. (Oppo. at 5, [ECF

NO. 288.])

II.

PROCEDURAL BACKGROUND

On July 31, 2008, Petitioner and his four co-defendants were charged by indictment

with two counts: (1) importation of marijuana pursuant to 21 U.S.C. §§ 952 and 960; and

(2) possession of marijuana with the intent to distribute pursuant to 21 U.S.C. §

841(a)(1). (Indictment [ECF NO. 11]).

Petitioner was the only defendant that did not plead guilty. The government sentenced

co-defendant Jesus Beltran-Russell to forty-six months on April 27, 2009 (Judgment

[ECF NO. 94]; Luis Lizzaraga-Rocha to thirty-seven months on March 4, 2009

(Judgment [ECF NO. 73]; and Mario Flores-Araujo to thirty months on April 28, 2009

(Judgment [ECF NO. 93.])

On December 15, 2009, this Court held Petitioner’s first trial for the charges set forth

against him in the indictment, which resulted in a mistrial. [ECF NO. 155.] On February

9, 2010, Petitioner’s second trial began, and the jury found Petitioner guilty on both

counts in the indictment. (Jury Verdict [ECF NO. 175.]) This Court sentenced Petitioner

to ten years of imprisonment and five years of supervised release. (Judgment [ECF NO.

255.]) In both trials, Wilske testified against Petitioner, and he received a time-served

sentence on March 29, 2010. (Minute Entry [ECF NO. 197.]

On August 16, 2010, Petitioner filed a motion for new trial and a motion for judgment

notwithstanding the verdict. [ECF NOS. 229-230.] On December 17, 2010, this court

denied both motions. [ECF NO. 244.] On July 27, 2011, Petitioner filed a notice of

appeal. [ECF NO. 256.] On April 17, 2012, Petitioner submitted his appellate opening

brief to the United States Court of Appeals for the Ninth Circuit and on February 7, 2013,

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the Ninth Circuit affirmed Petitioner’s conviction, albeit without prejudice to any motion

that he might file under 28 U.S.C. § 2255. (United States v. Torres, No. 11-50289, slip

op (9th Cir. Mar. 4, 2013) In its opinion, the Ninth Circuit reasoned that the trial record

was “not sufficiently developed to permit [the Ninth Circuit] to resolve [the Brady and

Napue issues] on direct appeal.” Id. at 1. On May 16, 2013, Petitioner filed a petition for

certiorari with the United States Supreme Court, which was denied on May 28, 2013.

On May 20, 2014, Petitioner filed the instant motion.

III.

A prisoner in custody may move the district court that imposed his sentence to

vacate, set aside, or correct the sentence “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.” 28 U.S.C. § 2255(a).

or should have known that Wilske was not guaranteed to serve seven years in State custody,

and yet withheld this evidence in violation of Brady1, which prevented Petitioner from

impeaching him at trial. (Mot. at 2-3.) According to Petitioner, the government improperly

bolstered Wilske’s credibility by stating he would unquestionably receive seven years for

a state probation violation, but instead, a state court judge released Wilske when he held

probation had expired. (Id.)

The government responds that it did not know that Wilske would be released from

Failure to Disclose Material Evidence under Brady

Petitioner argues his due process rights were violated because the government knew

DISCUSSION

custody by a state court judge, and that it therefore had no Brady obligation to disclose

information of which it was not aware. (Oppo 11.) Instead, the prosecutor made multiple

efforts to ensure Wilske was on probation, and stay updated on his state court status but

Brady v. Maryland, 373 U.S. 83 (1963).

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was not aware that a state court judge expressed doubts about Wilske’s probation status

immediately prior to the federal trial. (Id. 10-11.) Moreover, all of the information about

Wilske’s probation proceedings was available to the public, making the suppression of that

evidence an impossibility because Petitioner could have accessed it via his attorney at any

time. (Id. 13.) Even if the Court concludes that the United States suppressed information

about Wilske’s state court proceedings, Petitioner has not made out a valid Brady claim

because he has not demonstrated that this evidence would have reasonably affected the

outcome of his trial. (Id. 14.)

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 prosecution.” 373 U.S. 83, 87 (1963). Favorable evidence is material, and

constitutional error results from its suppression by the government, “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.”

Impeachment evidence and exculpatory evidence both fall within the Brady rule. Id. at

676 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Impeachment evidence is

characterized as “‘evidence favorable to an accused,’ so that, if disclosed and used

effectively, it may make the difference between conviction and acquittal.” Id. (quoting

Brady, 373 U.S. at 87). The prosecution’s responsibility for failing to disclose known,

favorable evidence rising to a material level of importance is inescapable. Kyles v. Whitley,

514 U.S. 419, 438 (1995).

United States v. Bagley, 473 U.S. 667, 682 (1985).

It is undisputed that Wilske was the government’s key witness in both of petitioner’s

jury trials for two reasons: first, because he piloted the Sea Explorer, and second, because

he was the only co-defendant who could testify as to who was onboard the Sea Explorer

when it arrived in San Diego. (Mot at 12 [ECF NO. 283.]). For this reason, his

testimony was of crucial importance in both trials. However, there is no evidence that the

government was in possession of information it withheld from Petitioner indicating it

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knew, or could have known, that Wilske would not serve the full seven year term of his

probation for his state court case. The thrust of Petitioner’s argument is that the

prosecutor kept tabs on Wilske’s state court proceedings and yet bolstered his credibility

by emphasizing that he would definitely serve the full seven years despite knowing the

state court case was in flux and it was possible Wilske would not serve that whole

sentence. The record belies Petitioner’s contention.

Wilske was sentenced by the state court on December 17, 2003 to 365 days in custody

and five years of probation, which was set to expire on December 16, 2008. [Mot. Ex.

H.] After being alerted to Petitioner’s involvement in the current offense, the District

Attorney’s office filed a motion to revoke Wilske’s probation on June 24, 2009. (Mot. Ex

I.) On August 14, 2009, a state court judge considered the D.A.’s motion, and stayed

determination of Wilske’s probation status until the outcome of the federal trial. (Mot.

Ex J-2). On September 15, 2009, another state court judge considered the motion, stated

she was considered revoking Wilske’s probation, but instead set an Order to Show Cause

hearing for a date after the projected sentencing date in federal court. (Id. Ex J-3). Again

on November 30, 2009, the state court considered Wilske’s probation status, but decided

to wait and see what happened during the federal trial. On January 26, 2010, shortly

before Petitioner’s second trial began, the state court convened yet another hearing and

stated there was a question as to whether Wilske’s probation had been tolled while he

was in federal custody. (Id. Ex J-5). At the hearing, the prosecution reminded the Court

that Wilske’s probation had been revoked on February 20, 2008, and converted to

summary probation, after which the Court set the matter over until after the federal

sentencing occurred. (Id.)

At Petitioner’s trial, Assistant United States Attorney (AUSA) Rebekah Young

questioned Wilske about the likelihood that he would receive another term of state

custody. Wilske testified that he believed he would serve seven years for violating his

state probation, which is what the Superior Court had advised him. These were factually

correct statements. During the February 20, 2008 hearing, State Court Judge Szumowski

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stated “I’ll commit you to the Department of Corrections ….for seven years, and I’ll stay

it and reinstate you on probation….if there is any violation, I’ll give you the seven years.

Is that clear?” (Def. Mot. Ex. J at 1-3). On September 15, 2009, Judge Polly Shamoun

stated that she was inclined to grant the People’s motion, summarily revoke probation,

and put it over for further O.S.C. in light of the case-law and evidence which suggested

Wilske violated his terms of probation by engaging in the federal crime. (Id. at 3-3.)

On March 29, 2010, this Court sentenced Wilske to time served based on his

cooperation with the government during Petitioner’s trial and the parties were under the

impression that Wilske would then have his state court probation addressed, as indicated

by the Superior Court rulings that stayed the issue. However, on the same day, a

California Superior Court judge determined that Wilske’s probation had expired,

seemingly overlooking the prior orders by the state court to stay the issue until the

conclusion of the federal trial, and ordered Wilske to be released from state custody. (Id.

Ex I.) Neither the AUSA or DA could predict that a different state court judge would

ultimately release Wilske from his state probation sentence, as indicated by the numerous

hearings before multiple state court judges which demonstrated that while the matter was

procedurally complex, its ultimate adjudication would occur after the federal sentence.

Petitioner vigorously argues that the prosecutor knew Wilske would likely not serve

the entire seven year sentence as is clear from the 5K sentencing recommendation the

government filed which suggested Wilske deserved a federal sentence of three years or

less because he would “likely receive [the seven year sentence] for his probation

violation” in state court. (Mot. 21). According to Petitioner, this indicates the prosecutor

knew it was uncertain whether Wilske would receive the full seven years, yet she placed

great emphasis on the sentence at trial. It is arguable that this evidence was favorable to

Petitioner because it suggested an alternative motive for Wilske to testify, and he was an

important witness, but the government did not suppress information within its possession

regarding any possibility of a lower sentence. Brady, 373 U.S. 83, 87 (1963). Instead,

Wilske was questioned on direct and cross-examination about the high likelihood of

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serving the seven year sentence, which was supported by the state court’s apparent

resolve to hold him to the promised seven year term all the way up until the day he was

sentenced in this Court and unexpectedly released from custody in the state court.

Therefore, there was no suppression of favorable evidence and instead it would have run

contrary to all the evidence from the state court for the prosecutor to suggest that Wilske

might not serve the full term. Because the Court finds no violation of the prosecutor’s

duty under Brady, Petitioner’s motion to vacate on these grounds is DENIED.

Presentation of False and Misleading Testimony

Petitioner contends his due process rights were violated when the government

deliberately elicited false testimony concerning Wilske’s potential sentences in state and

federal court under Napue v. Illinois, 360 U.S. 264, 269–71 (1959). (Mot. at 26.)

Specifically, Wilske testified that he would receive two years off his federal sentence as

part of his plea agreement but the prosecutor neglected to tell the jury that Wilske would

receive additional time off his federal sentence in exchange for testifying against

Petitioner. Moreover, the prosecutor emphasized that Wilske would serve his full seven

year state sentence, implying that he had nothing to gain by testifying against Petitioner.

(Id. at 28.) According to Petitioner, AUSA Young’s questions elicited responses from

Wilske that made the jury believe he would serve roughly fifteen years in prison, all

while knowing he was not going to serve any time. (Id. at 30-32.) Petitioner also

maintains that that the government emphasized this false evidence to the jury by

including it in its closing argument. (Id. at 34.) Petitioner argues that the allegedly false

testimony was material because Wilske’s credibility was of the utmost importance and

any evidence which either bolstered or impeached his credibility would have had a

reasonable likelihood of affecting the jury’s decision as to whether to believe him. (Pet.

At 35.) The fact that the first trial resulted in a hung jury is evidence of this fact in

Petitioner’s eyes. (Id.)

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The government responds that any testimony given by Petitioner which suggested

he was receiving a maximum of two years off his federal sentence and would definitely

receive a state sentence of seven years was addressed by the prosecutor during direct

examination and clarified for the jury, resulting in no false or misleading testimony being

allowed to stand. (Oppo. at 19-20.) Moreover, if any such testimony was introduced,

Petitioner cannot demonstrate prejudice because there was other highly damaging

impeachment evidence against Wilske presented to the jury and a large amount of direct

and circumstantial evidence of Petitioner’s guilt entirely independent of Wilske’s

testimony. (Id. at 20.) The government claims that Petitioner has not demonstrated that

the outcome of the trial would have been different absent the challenged testimony,

especially in light of the fact that the state court clearly stated Wilske would spend

significant time in custody during the 2008 and 2009 hearings. (Oppo. 22.)

A petitioner is denied due process of law in violation of the Fourteenth

Amendment to the Constitution of the United States by the failure of a prosecutor to

correct the testimony of the witness which he knew to be false. Napue v. Illinois, 360

U.S. 264, 269 (1959)("[I]t is established that a conviction obtained through use of false

evidence, known to be such by representatives of the State, must fall under the Fourteenth

Amendment"); see also Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)(“A criminal

defendant is denied due process of law when a prosecutor either knowingly presents false

evidence or fails to correct the record to reflect the true facts when unsolicited false

evidence is introduced at trial.”) In order to establish a claim for prosecutorial

misconduct based on false testimony, petitioner must show that the testimony was

actually false, that the prosecutor knew the testimony was actually false, and that the false

testimony was material. United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)

(citing Napue v. Illinois, 360 U.S. 264, 269–71 (1959)); see also Hayes, 399 F.3d at 984

(finding prosecutorial misconduct when the state knowingly presented false testimony of

prosecution witness who denied that the state agreed to dismiss felony charges against

him in exchange for his testimony). However, the Supreme Court “[does] not . . .

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automatically require a new trial whenever ‘a combing of the prosecutors’ files after the

trial has disclosed evidence possibly useful to the defense but not likely to have changed

the verdict[.]’” Giglio, 405 U.S. at 154 (quoting United States v. Keogh, 391 F.2d 138,

148 (2d. Cir. 1968) (Friendly, J.)).

Established Supreme Court law holds that “[t]he knowing use of perjured

testimony by a prosecutor generally requires that the conviction be set aside.” Killian v.

Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (citing United States v. Agurs, 427 U.S. 97,

103, (1976).) “The same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269. Rather,

“[i]t [i]s within the province of the jury to resolve the disputed testimony.” Id.

With regard to his federal sentence, Wilske testified during trial that he was

initially facing a ten year minimum mandatory sentence, but that in exchange for

pleading guilty he was set to receive an eight year sentence, which were true statements

at that time. Petitioner contends that Wilske also knew the government promised him a

downward departure from that eight year sentence if he gave the government

“substantial” assistance at trial and complied with the terms of his plea agreement, and

the jury was entitled to hear about that in judging his testimony, but the prosecutor

focused solely on the mandatory minimum reduction. It is true that during sentencing, the

government filed a motion for downward departure under §5K1.1 of the Sentencing

Guidelines stating that, in exchange for his substantial assistance, the government was

recommending a sentence of no greater than three years, and Wilske was ultimately

sentenced to time-served. However, even if the prosecutor and Wilske knew there was a

possibility he could potentially receive further reduction in his federal sentence due to his

testimony at trial, separate from his plea agreement reduction, his testimony was not false

because further reduction was not a certainty. Wilske’s testimony reflects this when he

stated he did not know what would happen with regard to his ultimate sentence. On re-

cross, the prosecutor addressed this uncertainty:

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Because, obviously, we said this before, you are looking at 15 years?

Yes.

And you don’t know what is going to happen?

No. I have no idea.

(Mot. Ex B 119).

In light of the fact that a further reduction was not guaranteed, the prosecutor did

not elicit false testimony in violation of Napue.

Similarly, the prosecutor did not elicit false testimony with regard to Wilske’s

potential state sentence. AUSA Young states in her declaration:

I was not aware that, shortly before [Wilske’s] second trial, Wilske had been

transferred back to state court for another probation violation hearing on

January 26, 2010, before a different state court judge. When I conducted a

direct examination of Wilske on February 9, 2010, I had no idea that his

probation violation hearing had been transferred to a different judge or that

this judge appeared not to have noticed the previous judge’s clear and

unequivocal ruling regarding Wilske’s active probation status when he

committed his federal offense.

(Young Decl. 4:20–28, June 23, 2014, ECF No. 288-1.)

Instead, the judge that AUSA Young mentions in her declaration, supra, did not

appear to notice that another state court judge had already ruled that Wilske committed

his federal offense while still on probation for his 2003 assault, and that his summary

probation should not be revoked. Instead, the judge overlooked the prior state court

orders directing no disposition on the probation matter until the conclusion of federal

proceedings, ordered Wilske’s probation terminated, and released Wilske from custody

the same day the federal proceedings concluded. Despite actively following the Wilske’s

state court proceedings, AUSA Young did not know that Wilske would ultimately be

released when she questioned him at trial, therefore the testimony was not false when it

was elicited. (See Young Decl. 5:8–20.) No prosecutor, or even Wilske himself, could

have predicted that turn of events. Accordingly, the government did not deliberately

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elicit false testimony, or fail to correct false testimony when it appeared, within the

meaning of Napue.2

Moreover, even if any misleading testimony was introduced regarding Wilske’s

federal or state sentences, it did not cause Petitioner prejudice as there was a substantial

amount impeachment evidence against Wilske including his prior convictions, lies to

officers, and drug use, which impugned his character. (Mot. Ex B at 60.) While the

disclosed evidence may have been useful to the defense, it was not likely to have changed

the verdict. Giglio, 405 U.S. at 154. The Court finds that the prosecutor did not

introduce false or misleading testimony regarding Wilske’s state or federal sentences, and

there is no merit to Petitioner’s argument that the testimony was material. Therefore, the

Court finds no violation of Napue, and Petitioner’s motion to vacate on these grounds is

DENIED.

In the event that its Brady and Napue claims fail, Petitioner argues in the alternative

that his trial counsel was ineffective for failing to investigate Wilske’s probation status in

state court and for failing to cross-examine Wilske about the further reduction he stood to

gain for his federal sentence by testifying against Petitioner. (Mot. at 36.) As a result,

Petitioner’s trial counsel did not impeach Wilske’s credibility, and instead allowed the

government to convince the jury to trust Wilske more than it should have. Petitioner argues

that trial counsel’s failure to investigate or impeach Wilske prejudiced the outcome because

Wilske’s testimony was the most powerful piece of evidence in a “largely circumstantial

Ineffective Assistance of Counsel

In his motion, Petitioner requests the Court’s leave for discovery in his habeas proceeding to determine

whether AUSA Young failed to disclose material evidence or elicited false testimony. Pet’r’s Mot. 41–

46, ECF No. 283. “[T]here simply is no federal right, constitutional or otherwise, to discovery in habeas

proceedings as a general matter.” Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993) (citing

Harris v. Nelson, 394 U.S. 286, 296 (1969)). A District Court may grant discovery proceedings

pursuant to the Federal Rules of Civil Procedure “if, and to the extent that, the judge in the exercise of

his discretion and for good cause shown grants leave to do so, but not otherwise.” Rules Governing §

2254 Cases, Rule 6(a), 28 U.S.C. foll. § 2254. Because the Government committed no Brady or Napue

violations, sections III-A and III-B, supra, the Court denies Petitioner’s request as moot.

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case.” (Mot. 40.) Consequently, Petitioner maintains that had trial counsel cross-examined

Wilske about his sentence, there is a reasonable probability that a jury may have found him

innocent. Petitioner bolsters his argument by reminding the Court that his first trial ended

in a mistrial. (Mot. at 40.)

The government first argues that Petitioner is precluded from re-litigating an

ineffective assistance of counsel claim in his section 2255 petition because Petitioner

already raised it in his motion for new trial, making it procedurally barred. (Gov’t’s Oppo.

23–24.) Even if the claims are not procedurally barred, the government argues that

Petitioner’s trial counsel’s performance fell within the wide range of acceptable assistance

and did not affect the outcome of his trial, therefore, his claim fails on the merits. (Id. at

23.) The government claims that if trial counsel had further investigated Wilske’s state and

federal sentences, it would merely have allowed Petitioner to cross-examine Wilske “about

the possibility that he might receive a lower sentence in state court.” (Oppo. at 19–20.)

Even without Wilske’s cross-examination testimony, the government contends that record

provided enough inculpatory evidence for the outcome of Petitioner’s trial to remain the

same. (Id.)

Procedural Bar

It is generally true that a petitioner who moves to vacate their sentence may not

invoke Section 2255 to re-litigate questions that the petitioner raised, or should have raised,

on direct appeal from conviction absent a showing of cause and prejudice. United States

v. Frady, 456 U.S. 152, 167-168 (1982); Hammond v. United States, 408 F.2d 481, 483

(9th Cir. 1969). An exception exists for ineffective assistance of counsel claims because

the record may not be sufficiently developed at the time of direct appeal to raise such

claims. Massaro v. United States, 538 U.S. 500, 504-505 (2003). Instead, it is well-

established that claims of ineffective assistance of counsel are more suitably brought in the

first instance in a motion under § 2255, whether or not a petitioner could have raised them

on direct appeal. Id.

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Although Petitioner raised ineffective assistance of counsel claims in his direct

appeal, the record of counsel’s performance was not complete until the conclusion of direct

review, therefore the Court of Appeal affirmed the conviction without prejudice to

Petitioner filing a motion pursuant to section 2255. (U.S. v Torres, 11-50289, (Feb. 7,

2013).) In light of Massaro’s holding that collateral review via section 2255 is the most

efficient means by which a petitioner may challenge his trial counsel’s performance, the

Court finds that Petitioner’s newly raised ineffective assistance of counsel claims are not

procedurally barred and turns to the merits of these claims.

Strickland

To establish ineffective assistance of counsel, a petitioner must prove by a

preponderance of the evidence that: (1) the assistance provided by counsel fell below an

objective standard of reasonableness; and (2) there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 688 (1984). To satisfy the deficiency prong of the Strickland

test, the Petitioner must show that his counsel’s performance was not “within the range of

competence demanded of attorneys in criminal cases.” McMahan v. Richardson, 397 U.S.

759, 771 (1970). In considering this issue, there is a “strong presumption that counsel’s

conduct falls within a wide range of professional assistance.” Strickland, 466 U.S. at 689.

Moreover, courts typically find that post hoc complaints about the strategy or tactics that

defense counsel employed are insufficient to satisfy the first prong of Strickland. See, e.g.,

United States v. Simmons, 923 F.2d 934, 956 (2.d Cir. 1991) (holding that appellant’s

displeasure with strategy employed by trial counsel was insufficient to establish

ineffectiveness).

“[A]lthough matters such as counsel’s approach to impeachment are often viewed

as tactical decisions . . . such decisions do not constitute deficient conduct simply because

there are better options.” Reynoso v. Giurbino, 462 F.3d 1099, 1113 (9th Cir. 2006).

Accordingly, counsel’s poor tactical decisions only amount to ineffective assistance when

the defendant can produce enough evidence to “overcome the presumption that, under the

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circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

“Although trial counsel is typically afforded leeway in making tactical decisions regarding

trial strategy, counsel cannot be said to have made a tactical decision without first procuring

the information necessary to make such a decision.” Reynoso, 462 F.3d at 1112.

Here, Petitioner makes two claims: 1) counsel failed to investigate the status of

Wilske’s state court sentence making him unable to effectively cross-examine Wilske at

trial, and 2) counsel failed to effectively cross examine Wilske about the additional benefit

he stood to gain in his federal sentence by testifying against Petitioner. (Mot. 36.) With

regard to his state sentence, the record indicates that counsel conducted research into the

potential sentence in state court as is evidenced by defense counsel’s cross-examination of

Wilske:

…I mean, if you have any violation at all and [Agent Rich] reports that to the

state court, you go to prison?

Right

For seven years?

Right, right.

(Mot. Ex. B 55).

Defense counsel pursued the topic further and asked:

…On February 20th, you appeared in state court, correct?

Correct.

And at that point the judge imposed a seven-year stayed sentence, right?

Right.

And the terms of that stayed sentence were simply you’re on summary

probation?

Right.

Summary probation means you don’t have to report. As long as you don’t

show up and stay out of trouble, you’re not going to have any problems, right?

(Id. at B 54-55.)

And again defense counsel addressed the sentence Wilske faced in state court:

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And it’s really your hope that your seven year sentence from the state court is

going to run concurrent?

It is my hope, but it’s not going to happen.

(Id. B 75).

As is clear from defense counsel’s cross-examination of Wilske, counsel conducted

investigation into the state court proceedings and effectively cross-examined him on the

sentence he was facing there. See Reynoso, 462 F.3d at 1112.

However, Petitioner argues that as early as August 2009 there was a question as to

whether Wilske was still on probation, and therefore might not serve any time in state

custody, and counsel’s failure to investigate and request transcripts from the state court

proceedings made it impossible to properly impeach him during trial. (Mot. 38). Although

the state court indicated in August 2010 that tolling needed to be addressed, it held that

Wilske was still on summary probation in September 2010 and November 2010, apparently

answering the question for itself. (Mot. Ex H. 4-6). In January 2010, the state court

continued to note there was a question whether tolling applied to Wilske’s probation,

however the transcript indicates that Wilske was on summary probation and the state court

held the matter over until after the federal sentencing. (Mot Ex J 5). While it is true that

defense counsel did not question Wilske about any uncertainty expressed by the state court

regarding his sentence, his decision to pursue a different tactical approach to impeaching

Wilske did not render his performance deficient as he clearly conducted investigation into

the state court proceedings sufficient to make a decision regarding what to pursue during

examination of Wilske, therefore Petitioner cannot satisfy the first prong of Strickland.

Strickland, 466 U.S. at 689.

With regard to defense counsel’s failure to cross-examine Wilske about the

additional benefit he expected in return for testifying against Petitioner, defense counsel

addressed Wilske’s motive for testifying on cross-examination:

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And one of the things… is your motive, right, for testifying here today… is to

get less time.

Right.

Is there anything unusual about that?

No. Anybody who has even been to jail knows.

Given that you have that motive, then, how can we trust someone like you?

Because the deal is off if I don’t tell the truth. If I get caught lying, I don’t get

any deal and it goes back from ten years to life in prison.

(Mot. Ex B 42-43).

Counsel further attempted to challenge Wilske’s credibility by suggesting that

Wilske underrepresented the benefit he was receiving because he was not merely given

two years off of his federal sentence but was now facing a maximum of eight years in

custody rather than the minimum mandatory sentence of ten years with a possibility of a

much higher sentence by testifying. (Id. at 73-74). In addition, Defense counsel suggested

on cross-examination that Wilske was testifying against Petitioner because there was no

one else to “offer testimony against” because the other defendants pled guilty prior to

Petitioner’s trial. (Id. at 75). In this manner, counsel attempted to impeach Wilske with

the suggestion that he was receiving a greater benefit than he initially represented, along

with other damaging impeachment evidence. In scrutinizing the effectiveness of counsel,

courts must be highly deferential and refrain from second-guessing counsel after an adverse

sentencing decision. Strickland, 466 U.S. at 689. Accordingly, the Court finds Petitioner

has not demonstrated that “the assistance provided by counsel fell below an objective

standard of reasonableness.” Id. at 688. Because Petitioner has failed to meet the first

prong of his Strickland claim, the Court need not address the second prong as there was no

error in counsel’s conduct. Accordingly, Petitioner has failed to show the assistance

provided by counsel fell below an objective standard of reasonableness and Petitioner’s

motion to vacate on these grounds is DENIED.

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IV.

MOTION FOR CLARIFICATION

On April 29, 2016, Petitioner, filed a Motion for Clarification regarding his federal

sentence. (Mot. for Clarification [ECF NO. 298.]) Petitioner seeks to clarify whether the

120 month sentence in this case began to run from the date of his arrest on July 15, 2008,

or began to run from the date of his sentencing, on February 16, 2009. (Mot. at 2.)

Petitioner is currently represented by counsel, but filed the current Motion directly with

this Court without consulting counsel. In light of the fact that Petitioner continues to be

represented by counsel, the Court DENIES the motion without prejudice.

CONCLUSION

In light of the foregoing, Petitioner’s motion to vacate, set aside, or correct his

sentence is DENIED WITHOUT PREJUDICE and Petitioner’s Motion for

Clarification is DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.

Dated: February 3, 2017

08-CR-2559-L

APPENDIX B

DISTRICT COURT ORDER DENYING

CERTIFICATE OF APPEALABILITY

Dated: March 23, 2017

Case 3:08-cr-02559-L Document 304 Filed 03/23/17 PageID.3525 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

11 ROBERT EDWARD TORRES,

Petitioner,

13 v.

14 UNITED STATES OF AMERICA,

Respondent.

)

Civil No. 14-CV-1293-L

Criminal No. 08-CR-2559-5-L

ORDER DENYING CERTIFICATE OF

APPEALABILITY

On May 20, 2014, Petitioner, Robert Edward Torres (“Petitioner”), filed a motion

pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The Court

denied his motion on February 3, 2017. On March 13, 2017, Petitioner filed a Motion for

Issuance of Certificate of Appealability.

A certificate of appealability is authorized “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

meet this standard, Petitioner must show that “jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). Petitioner does not have to show “‘that he should

prevail on the merits. He has already failed in that endeavor.’” Lambright v. Stewart,

14cv1293; 08cr2559

Case 3:08-cr-02559-L Document 304 Filed 03/23/17 PageID.3526 Page 2 of 2

1 220 F.3d 1022, 1025 (9th Cir. 2000) (internal quotation omitted).

Having reviewed the matter, the Court finds Petitioner’s motion does not support a

3 certificate of appealability as to Petitioner’s claims. Petitioner has not made a substantial

4 showing that he was denied a constitutional right and the Court is not persuaded that

5 jurists could disagree with the Court’s resolution of his claims or that the issues presented

6 deserve encouragement to proceed further. Therefore, Petitioner’s request for a

7 certificate of appealability is DENIED.

IT IS SO ORDERED.

9 DATED: March 23, 2017

M. James Lorenz

United States District Court Judge

COPY TO:

PETITIONER

14 U.S. ATTORNEY’S OFFICE

14cv1293; 08cr2559

APPENDIX C

NINTH CIRCUIT ORDER DENYING

CERTIFICATE OF APPEALABILITY

Dated: September 6, 2017

Case: 17-55189, 09/06/2017, ID: 10571676, DktEntry: 8, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

SEP 6 2017

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee,

17-55189

D.C. Nos.

3:14-cv-01293-L

3:08-cr-02559-L-5

Southern District of California,

San Diego

ROBERT EDWARD TORRES,

ORDER

Defendant-Appellant.

Before: CALLAHAN and M. SMITH, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 7) is denied

because appellant has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

APPENDIX D

NINTH CIRCUIT ORDER DENYING

MOTIONS FOR RECOMMENDATION

Dated: November 8, 2017

Case: 17-55189, 11/08/2017, ID: 10647563, DktEntry: 10, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 8 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee,

17-55189

D.C. Nos.

3:14-cv-01293-L

3:08-cr-02559-L-5

Southern District of California,

San Diego

ROBERT EDWARD TORRES,

ORDER

Defendant-Appellant.

Before: SILVERMAN and IKUTA, Circuit Judges.

The motion for reconsideration (Docket Entry No. 9) is denied. See 9th Cir.

R. 27-10.

No further filings will be entertained in this closed case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.