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Duncan v. United States

United States District Court, D. Idaho

March 22, 2019



          Honorable Edward J. Lodge U.S. District Judge.


         Pending before the Court in the above-entitled matter is Petitioner's Motion for Collateral Relief seeking to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (CV 1, 4.)[1] The parties have filed their responsive briefing and matter is ripe for the Court's consideration.


         This is a federal capital case arising from the events occurring in the spring of 2005 when the Petitioner, Joseph Edward Duncan III, traveled from North Dakota to Idaho on an orchestrated crime spree looking for children to abduct, abuse, and kill.[2] On May 16, 2005, Duncan carefully choose his victims when he broke into a rural home near Coeur d'Alene, Idaho and savagely killed three individuals living at the home and kidnapped two of the minor children - S.G. and D.G. - who were eight and nine years old at the time. Duncan took the two children to a secluded campsite in the Lolo National Forest in Montana that he had chosen for its privacy where, for the next several weeks, he inhumanely tortured, raped, and sexually assaulted both children. Duncan eventually killed D.G. at the campsite. On June 22, 2005, Duncan returned to Coeur d'Alene, Idaho with S.G. and he was apprehended when an employee of the restaurant where he and S.G. were eating identified the two and called law enforcement.

         The State of Idaho charged Duncan with three counts of kidnaping and three counts of murder relating to his killings of the three individuals at the Coeur d'Alene home. Duncan plead guilty to the state charges on October 16, 2006.[3]

         On January 18, 2007, a federal grand jury indicted Duncan on ten counts relating to his criminal conduct, including three death-eligible counts. (CR 1.) Duncan was appointed counsel and the trial was set for March 20, 2007. (CR 5, 459.)[4] On January 23, 2007, the Government filed a Notice of Intent to Seek the Death Penalty. (CR 11.) Capital counsel was appointed to represent Duncan and the Court granted a continuance of the trial date to January 22, 2008. (CR 13, 32.)[5] Just prior to that trial setting, on December 3, 2007, Duncan plead guilty to all ten counts in the Indictment. (CR 188, 189, 204.) The Court scheduled the Penalty Phase to begin on January 28, 2008. (CR 189.)

         Both parties filed Motions seeking to continue the start of the Penalty Phase and extend the time to file motions. (CR 192, 193, 195.) The Court agreed and extended the motions deadline to January 22, 2008 and continued the start of the Penalty Phase to April 14, 2008. (CR 202.) After the parties filed their motions, the Court held three days of hearings on the motions and then issued written decisions. (CR 230-231, 266, 314-316.) On March 26, 2008, the Court held a status conference on remaining pending matters. (CR 343, 350.) Prior to the start of the Penalty Phase, the parties submitted additional motions, a proposed Jury Questionnaire, proposed Jury Instructions, and other pre-Penalty Phase filings. The Court granted the defense's Motion to Bifurcate the Penalty Phase into an Eligibility Phase and a Selection Phase. (CR 253, 266, 316.)

         The Penalty Phase began on April 14, 2008 when the entire pool of more than 300 prospective jurors was called in to complete a written jury questionnaire. (CR 387.) Jury selection resumed on April 16, 2008 but prior to the prospective jurors being brought in, Duncan made an oral motion to represent himself. (CR 391, 398.) On April 18, 2008, the Court held a hearing on that request and ordered that Duncan be evaluated to determine whether he was competent to waive his right to counsel. (CR 399, 404.) The Court suspended voir dire until Duncan could be evaluated and the Court could rule on his request to represent himself. (CR 407.) The defense also filed a Motion to Declare the Defendant Incompetent to Proceed. (CR 415.)

         On July 24, 2008, the Court entered an Order finding Duncan competent and set a hearing on his request to proceed pro se. (CR 493.) The Court held that hearing on July 28, 2008, where it granted Duncan's oral motion for self-representation finding Duncan to be competent and that his waiver of his right to counsel was knowing and voluntary. (CR 499, 502.) The Court also appointed his defense attorneys as standby counsel. (CR 499, 502.)

         Jury selection resumed on August 6, 2008. (CR 529.) Ultimately, on August 27, 2008, the jury returned death verdicts on the three death-eligible counts of the Indictment - Count 1 (Kidnapping a Minor Resulting in Death); Count 5 (Sexual Exploitation of a Child Resulting in Death); and Count 7 (Using a Firearm During and in Relation to a Crime of Violence resulting in Death) - and the Court sentenced Duncan to death on each of those three counts. (CR 582, 602.)

         On November 3, 2008, the Court sentenced Duncan on the non-capital crimes to a consecutive term of life imprisonment on Count 4 (Aggravated Sexual Abuse of a Minor), and concurrent terms of life imprisonment on Counts 2 and 3 (Kidnapping a Minor and Aggravated Sexual Abuse of a Minor), and concurrent terms of 120 months of imprisonment on each of the remaining counts - Count 6 (Possession of a Firearm by a Convicted Felon), Count 8 (Transportation of a Stolen Firearm), Count 9 (Possession of an Unregistered Firearm), and Count 10 (Transportation of a Stolen Vehicle). (CR 599, 601, 602.)

         On November 17, 2008, standby counsel filed a Notice of Appeal. (CR 605.) On November 19, 2008, the Court received a letter from Duncan dated November 15, 2008, stating “if any appeal is initiated on my behalf, it is done contrary to my wishes.” (CR 607.) On the same day, the Government filed a Motion to Strike Standby Counsel's Notice of Appeal. (CR 606.) The Court held a hearing on November 24, 2008 to inquire of Duncan as to whether he desired to waive his appeal. (CR 609, 612.) Following a lengthy colloquy, the Court concluded that Duncan remained competent and that he did not desire to file an appeal. (CR 637.) Accordingly, the Court struck the Notice of Appeal. (CR 612.)

         Nevertheless, the Ninth Circuit heard the appeal “for the limited purpose of reviewing the district court's competency determinations” and concluded that the Court erred by not holding a competency hearing to determine whether Duncan competently waived his right to appeal. (CR 671, 677.) The case was remanded with instructions for a retrospective competency hearing. United States v. Duncan, 643 F.3d 1242 (9th Cir. 2011).

         New counsel was appointed to represent Duncan at the retrospective competency hearing. (CR 695, 703.) The twenty-three day retrospective competency hearing began on January 8, 2013. (CR 745, 794, 807-829.) On December 6, 2013, the Court issued its Order on Remand wherein it ruled that Duncan was competent to waive his right to appeal. (CR 843.) The defense appealed the Order on Remand. (CR 844.) On March 27, 2015, the Ninth Circuit issued its Memorandum and Order affirming this Court's Order on Remand concluding the “Defendant was competent in November 2008” and that he had “validly and affirmatively waived his right to appeal.” (CR 860.) On February 29, 2016, the United States Supreme Court denied Duncan's Petition for Writ of Certiorari. On February 28, 2017, Duncan filed his § 2255 Petition which the Court now takes up. (CR 867) (CV 1, 4.)


         Section 2255 permits a federal prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the grounds 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); see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (stating the four grounds for § 2255 relief). Relief under § 2255 is afforded “[i]f the court finds that...there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b).

         The standard of review for § 2255 petitions is “stringent” and the court “presumes earlier proceedings were correct.” United States v. Nelson, 177 F.Supp.2d 1181, 1187 (D. Kan. 2001) (citation omitted). To prevail on a § 2255 motion, the “defendant must show a defect in the proceedings which resulted in a ‘complete miscarriage of justice.'” Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). “[R]elief is not available merely because of error that may have justified reversal on direct appeal.” United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184 (1979).


         1. The Procedural Default Rule and Teague Doctrine

         The Government argues several of Duncan's claims are procedurally barred from being raised in his § 2255 Motion because he waived his right to appeal and/or the claims improperly seek to retroactively apply a new rule of law. (CV 34.) Duncan counters that many of his claims are “essentially ineffective assistance of counsel claims” which are not subject to the procedural default rule or are as-applied challenges relying on extra-record evidence. (CV 4, 37.) Further, Duncan argues the non-retroactivity doctrine does not apply to bar his claims. (CV 4, 37.)

         A. The Procedural Default Rule

         “The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is [procedurally] barred from raising the claim on collateral review.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006); see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.”). A petitioner may overcome procedural default and raise the claim in a habeas petition only when they demonstrate either 1) “cause” for not raising the claim sooner and “actual prejudice” resulting from the alleged error or 2) “actual innocence.” United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007); see also Sanchez-Llamas, 548 U.S. at 351; Ratigan, 351 F.3d at 960. Ineffective assistance of counsel claims are an exception to the procedural default rule and may be brought in a collateral proceeding regardless of whether they could have been or were brought on direct appeal. Massaro v. United States, 538 U.S. 500, 505 (2003).

         Duncan's competent and valid waiver of appeal likely precludes many of the claims and/or arguments made in the § 2255 Petition. Regardless, the Court finds it appropriate and necessary in this case to address the merits of all of the claims made in this case.

         B. The Teague Doctrine

         For habeas claims based on new constitutional rules of criminal procedure that are announced after the conclusion of a petitioner's direct appeal, a federal court can only grant relief under 28 U.S.C. § 2255 if the new rule applies retroactively under Teague v. Lane, 489 U.S. 288 (1989). See United States v. Sanchez-Cervantes, 282 F.3d 664, 667-68 (9th Cir. 2002).

         Generally, under Teague, “‘new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are an nounced.'” Welch v. United States, 136 S.Ct. 1257, 1264 (2016) (quoting Teague, 489 U.S. at 310). There are two exceptions to the Teague retroactivity bar. First, “‘new substantive rules generally apply retroactively.'” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)). Second, “new watershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding, will also have retroactive effect.” Id. (internal quotation marks omitted). To determine retroactivity under Teague, the Court considers: (1) when the petitioner's conviction became final; (2) if the rule sought to be applied is a “new” rule; and if so, (3) whether it falls within either of the two exceptions to the presumption against retroactivity. Beard v. Banks, 542 U.S. 406 (2004) (citation omitted).

         In this case, the Government argues Teague precludes Claims 1, 4, 5, 7, 8, and 10. (CV 34.) Duncan counters that the Teague Doctrine is inapplicable because his claims do not raise or implicate the creation of new rules of constitutional procedure. (CV 37.) Although some of Duncan's § 2255 claims may be precluded by Teague, the Court has considered each of Duncan's claims.

         2. Duncan was Provided Effective Assistance of Counsel

         Duncan argues his trial attorneys were ineffective in their representation in violation of the Sixth Amendment and 18 U.S.C. § 3006A and his right to a reliable death judgment as guaranteed by the Eighth Amendment. (CV 4, 37.) The central argument on this claim is that there was a breakdown of the system in the criminal proceeding beginning with Peven's deficient performance which infected the entire defense team and its strategy as well as the Court's rulings, resulting in structural errors prejudicial to Duncan which violated his constitutional rights. (CV 4.) The Government maintains Duncan has not shown any deficiency or prejudice by his attorneys' or by the Court's rulings. (CV 34.)

         The Sixth Amendment guarantees “the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The two-prong standard for evaluating a Sixth Amendment ineffective assistance of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). “To be entitled to habeas relief due to the ineffectiveness of defense counsel, petitioner must establish both that counsel's performance was deficient and that the deficiencies prejudiced the defense.” Medina v. Barnes, 71 F.3d 636, 368 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 687, 689). Mere conclusory allegations do not prove that counsel was ineffective. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989). A petitioner claiming ineffective assistance of counsel must allege specific facts which, if proved, would demonstrate that counsel's actions were 1) deficient and 2) prejudicial. Strickland, 466 U.S. at 687-690, 696; Weaver v. Massachusetts, 137 S.Ct. 1899, 1909-10 (2017).

         The Court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the movant resulting from the alleged deficiencies. Strickland, 466 U.S. at 697. Nor does the court need to address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Id.

         A. Defense Counsels' Performance

         To establish “deficient performance” under the first prong of the test, the movant must show counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687; Harrington v. Richter, 562 U.S. 86, 104 (2011). Counsel's performance is constitutionally deficient when it “so undermine[s] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. “Deficient performance” means representation that is “outside the wide range of professionally competent assistance” and/or “fell below an objective standard of reasonableness.” Id. at 690; Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011). The Court evaluates “counsel's performance from [their] perspective at the time of that performance, considered in light of all the circumstances, and we indulge a strong presumption that counsel's conduct fell within the ‘wide range of reasonable professional assistance.'” Medina, 71 F.3d at 368 (quoting Strickland, 466 U.S. at 689). A tactical decision by counsel with which the defendant disagrees cannot form the basis of an ineffective assistance of counsel claim. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990); Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).

         Duncan argues his trial attorneys were deficient throughout his criminal proceedings. (CV 4, 37.) The bulk of this claim centers on Peven. Duncan asserts Peven was deficient in his representation and that Peven's actions and inactions caused dysfunction among his attorneys resulting in the denial of his right to adequate representation; specifically, as to his guilty plea and his trial counsels' investigation and preparation. Duncan further asserts his mental illness and the Court's rulings compounded his attorneys' inability to represent him.

         1. Peven's Performance

         Peven's conduct and performance during his representation of Duncan is documented in the declarations filed in both this case as well as in the underlying criminal case. See e.g. (CV 2, Att. 1, 5, 7, 8) (CR 74-78) (CR 194-3, Dec. Larrañaga.) The Court has reviewed the record in both proceedings. For the reasons stated herein, the Court finds Duncan was not prejudiced by Peven's performance.[6]

         2. Duncan's Guilty Plea

         Defendants' Sixth Amendment right to counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). “During plea negotiations defendants are ‘entitled to the effective assistance of competent counsel.'” Id. (quoting McMann, 397 U.S. at 771). Here, Duncan was represented by a team of experienced and qualified attorneys at the time of his guilty plea.

         Duncan asserts his attorneys were deficient, however, because they did not fully advise him of the advantages and disadvantages of waiving trial or discuss potential defenses or strategies before he entered his guilty plea due to their lack of preparedness. (CR 4.) Pointing to Peven's conduct and the Court's denial of a continuance, Duncan argues his attorneys advised him to plead guilty solely for the purpose of gaining additional time to prepare for the Penalty Phase.

         “A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citation and internal quotations omitted). “It goes without saying that a plea must be voluntary to be constitutional.” United States v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001). A plea is considered voluntary when it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Id. (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).

         Where a defendant enters a plea of guilty upon the advice of counsel, the voluntariness of the plea depends on whether the defendant received the effective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). To challenge his guilty plea based on ineffective assistance of counsel, the petitioner must show that counsels' performance fell below the objective standard of reasonableness and that, but for such errors, he would not have pled guilty and, instead, would have insisted on going to trial. Id. at 57-60.

         However, “a plea of guilty entered by one fully aware of the direct consequences...must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).” Kaczynski, 239 F.3d at 1114 (quoting Brady v. United States, 397 U.S. 742, 755 (1970)).

         Duncan's guilty pleas in this case were entered knowingly, intelligently, and voluntarily.

         In assessing the voluntariness of the plea, the court must accord great weight to statements made by the defendant contemporaneously with his plea. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986). At Duncan's plea hearing, the Court made a thorough and complete inquiry of Duncan before accepting the plea. (CR 204.) The Court fully advised Duncan of the charges against him, the possible penalties, his constitutional rights, and the ramifications of entering guilty pleas. (CR 204.) Duncan told the Court that he had gone over each of the ten charges and discussed them with his attorneys. (CR 204 at 6-7.) Duncan stated that he understood the charges and the possible penalties, that he agreed with the factual basis and that it was sufficient to sustain a conviction on each of the charges, and that he was entering his pleas voluntarily and of his own free will and because he is in fact guilty as charged. (CR 204.)

         The Court also inquired of counsel whether they had discussed any and all potential defenses that they were aware of with Duncan to which counsel responded “[t]o the best of our knowledge, yes….” (CR 204 at 25.) The Court asked counsel “Whether the Court has asked it or not, do you know of any reason why Mr. Duncan should not be allowed to enter pleas of guilty to each of these charges, ” to which counsel answered “[t]o the best of our knowledge, no, Your Honor.” (CR 204 at 25.)

         The representations made on the record by Duncan and his counsel as well as the Court's own findings, clearly established that Duncan's plea was voluntary, knowing, and intelligent. Such a record “constitute[s] a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Those “[s]olemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Id. at 74; see also Kaczynski, 239 F.3d at 1115 (“We give ‘substantial weight' to [petitioner's] in-court statements.”) (quoting United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991)).

         That defense's now seeks to minimize, explain, and backpedal from the in-court representations is contrary to the record and representations made at the time of the plea hearing. The Declarations filed by Duncan's trial attorneys after-the-fact now state that they had no meaningful discussion with Duncan about the potential risks and benefits associated with pleading guilty because they had not had sufficient time to investigate and prepare the case and that the decision to advise Duncan to plead guilty was done without any real appreciation for or understanding of his mental health condition or mental issues. (CV 2, Att. 1, 7.) The record from the plea hearing proves otherwise. (CR 204.)

         Further, the defense had adequate time to investigate and prepare the case well before Duncan entered his guilty plea and was aware of the issues raised in this claim. Duncan's federal attorneys were involved in discussions, cooperation, investigation, and preparation into the case and negotiations for a global settlement from at least January of 2006; before the federal Indictment was filed. (CV 2, Att. 14, 16.) The defense attorneys also knew of and were pursuing mitigation evidence as well as investigating Duncan's mental health and competency issues prior to the federal charges being filed. That the defense team ultimately elected to advise Duncan to enter a guilty plea in December of 2007 was a strategical choice to focus their preparation on the Penalty Phase. Although the defense couches this choice as being forced by the lack of time and preparation, the fact remains that none of the defense team doubted Duncan's guilt nor the overwhelming evidence the Government had to prove each of the elements of the charges. Nor is there any dispute that Duncan intended to plead guilty from the beginning of this case. (CV 33, Sealed Govt. Att. 3, 2006 Visit Summaries at 2, 10, 37, 43-44, 51, 57, 86) (CR 204 at 4.)

         The Court finds counsels' performance did not fall below the objective standard of reasonableness with regard to Duncan's guilty plea. See Hill, 474 U.S. at 57-60. Defense counsel strategically advised Duncan to plead guilty being aware of the vast amount of evidence establishing Duncan's guilt as well as Duncan's mental health issues and the importance of mitigation at the Penalty Phase. Further, Duncan was not prejudiced because the record does not show that but for any deficiencies, he would not have plead guilty, proceeded to trial, and/or not been sentenced to death. Id. Duncan never wavered in his intention to plead guilty. Duncan entered his guilty plea “voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences” and after being advised by his counsel. Bradshaw, 545 U.S. at 183; Hill, 474 U.S. at 56-57.

         3. Defense Team's Investigation and Preparation

         “To perform effectively in the penalty phase of a capital case, counsel must conduct sufficient investigation and engage in sufficient preparation to be able to ‘present[ ] and explain[ ] the significance of all the available [mitigating] evidence.'” Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc) (quoting Williams v. Taylor, 529 U.S. 362, 393, 399 (2000)). Duncan had a team of attorneys, investigators, specialists, and experts who were aware of, investigated, and were prepared to present and explain the significance of the issues surrounding Duncan's mental condition and all the available mitigating evidence.

         Duncan's mental competency, mental health issues, and possible mitigation were all part of both the state and federal defense teams discussions, planning, investigation, and preparation as early as August of 2005. (CR 816 at 2646-47) (CR 817 at 2666-76, 2719-22). There was coordination and overlapping personnel between the state and federal defense teams. Before the federal indictment was filed, both defense teams included attorneys, mental health experts, and investigators all of whom were communicating and investigating the issues and concerns they knew would arise including Duncan's history, possible witnesses, mitigation, and his mental health/competency. See e.g. Id. and (CR 194, Att. 2, Dec. Beaver) (CR 824 at 4524-25.) The federal defense team was meeting and communicating regularly with Duncan and knew of the need to raise competency issues when the charges in this case were filed. See e.g. Id. and (CR 824 at 4527, 4539-49, 4556-58, 4563.)

         There were certainly frustrations among the defense team which the Court was aware of and appreciated when it made its rulings in the case. Despite those issues within the defense team, the fact remains that the defense was well aware early on that Duncan's mental health/competency would be an issue and that they would need to conduct an extensive mitigation investigation. The defense team therefore started preparing for the capital sentencing hearing by investigating Duncan's mental health/competency and the available mitigation evidence even before the federal charges were filed.

         Moreover, the record shows the defense attorneys were well informed and able to skillfully present their position concerning Duncan's mental health/competency and possible mitigation in this case. The defense attorneys expertly addressed those issues and their knowledge and preparation was evident to this Court who presided over the case. That the defense team had investigated and prepared the case became even more clear at the retrospective competency hearing where the testimony and evidence revealed the great extent and length of the defense team's work on the case. Defense counsels' performance was not deficient in this regard.

         B. Duncan Suffered No. Prejudice as a Result of Counsels' Performance

         The second prong of the test requires the Petitioner to “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” Strickland, 466 U.S. at 694, or that the error was so serious it rendered the trial fundamentally unfair, Weaver, 137 S.Ct. at 1911. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693). “[A]n attorney's inadequate representation does not rise to the level of a constitutional violation unless the deficiency so infected the adversarial process as to raise doubts about the reliability of the proceeding's outcome.” Howard v. Clark, 608 F.3d 563, 568 (9th Cir. 2010) (citing Strickland, 466 U.S. at 687).

         Prejudice may be presumed where counsel's error was a “structural” defect. Carrera v. Ayers, 670 F.3d 938, 956 (9th Cir. 2011) (citing cases). The parties dispute whether there was structural error in this case such that prejudice is presumed. (CV 4, 34.) Structural errors are errors that affect “the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). The Supreme Court has “found structural errors only in a very limited class of cases” such as: (1) denying an attorney to an indigent defendant; (2) lack of an impartial trial judge; (3) unlawful exclusion of a juror based on race or ethnicity; (4) right to a public trial; and (5) failure to give a reasonable-doubt jury instruction. Johnson v. United States, 520 U.S. 461, 468-69 (1997) (citing cases).

         Duncan argues the “breakdown of the system” in his case, including the deprivation of his Sixth Amendment right to counsel, constituted “structural errors” and, therefore, prejudice is presumed. (CV 4 at 38-39.)

         There is a distinction, however, between objections to structural errors made at trial and preserved on direct appeal (in which case prejudice is presumed) and where, as here, objections to structural errors are raised later in the context of an ineffective assistance of counsel claim (in which case the burden is on defendant to show prejudice). See Weaver, 137 S.Ct. at 1909-11 (holding made in the context of the right to a public trial). Because Duncan waived his direct appeal, he bears the burden here to show prejudice. Id.; (CR 860, United States v. Duncan, Appeal No. 13-99011).

         Duncan argues the errors by his counsel and the Court deprived him of effective assistance of counsel and prejudiced him such that the criminal proceedings were unconstitutional. (CV 4, 37.) Having reviewed the arguments and materials submitted by the parties in this proceeding as well as the record in the underlying criminal action, the ...

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