Lane v. United States ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, No. CV-19-05028-PHX-DGC (DMF) 10 Plaintiff, No. CR-12-01419-PHX-DGC 11 v. 12 Michael Rocky Lane, ORDER 13 Defendant. 14 15 Defendant Michael Rocky Lane has filed a motion to vacate his sentence under 28 16 U.S.C. § 2255, a motion for discovery and an evidentiary hearing, and a motion for release 17 pending appeal. CV Docs. 10, 21, 24.1 Magistrate Judge Deborah M. Fine recommends 18 that the motions and a certificate of appealability be denied. CV Doc. 48 (“R&R”). 19 Defendant objects. CV Doc. 49. The Court will accept Judge Fine’s R&R. 20 Background. 21 A. Procedural History. 22 In March 2013, a grand jury indicted Defendant on two counts of conspiracy to 23 manufacture and distribute controlled substance analogues and one count of possession 24 with intent to distribute controlled substance analogues, in violation of the Comprehensive 25 Drug Abuse Prevention and Control Act of 1970 (“CSA”) and the Controlled Substance 26 27 1 Documents filed in this civil action, No. CV-19-05028, are cited as “CV Docs.” 28 Documents filed in Defendant’s underlying criminal case, No. CR-12-01419, are denoted “CR Docs.” 1 Analogue Enforcement Act (“Analogue Act”). See CR Doc. 144. The CSA prohibits the 2 manufacture, distribution, and possession of controlled substances, which are drugs listed 3 in Schedules I through V of the Act. See 21 U.S.C. §§ 802(6), 841. The Analogue Act 4 prohibits the manufacture, distribution, and possession of controlled substance analogues. 5 21 U.S.C. § 813. These are substances with a substantially similar chemical structure to a 6 Schedule I or Schedule II controlled substance and that have, or are represented or intended 7 to have, a substantially similar effect on the central nervous system. Id., see 21 U.S.C. 8 § 802(32)(A). If a controlled substance analogue is intended for human consumption, it is 9 treated for criminal purposes as a Schedule I controlled substance under the CSA. Id.; see 10 21 U.S.C. § 813. 11 Count 1 charged Defendant with conspiracy to manufacture or distribute controlled 12 substance analogues MDPV, a-PVP, a-PBP, pentedrone, and pentylone; Count 3 with 13 conspiracy to manufacture or distribute controlled substance analogues MPPP, a-PVP, a- 14 PBP, pentedrone, and pentylone; and Count 5 with possession with intent to distribute 15 controlled substance analogues a-PVP, pentedrone, and MPPP.2 CR Doc. 676 at 3-5. 16 To prove its case, the government had to prove that each charged substance had a 17 chemical structure substantially similar to that of a controlled substance in Schedule I or II 18 of the CSA (“Prong 1”). See CV Doc. 52 at 2. It also had to prove that each substance 19 had, or Defendant represented or intended it to have, a substantially similar effect on the 20 central nervous system as a Schedule I or II controlled substance (“Prong 2”). Id.; United 21 States v. Lane, No. CR-12-01419-DGC, 2013 WL 3199841, at *2 (D. Ariz. June 24, 2013). 22 The government was also required to prove that Defendant knew the substances were 23 analogues. CV Doc. 52 at 2. 24 Following a three-week trial, a jury found Defendant guilty on all counts. CR 25 Doc. 676 at 3-5. The Court varied downward from the sentencing guideline range of 240 26 2 In October 2011, DEA listed MDPV as a Schedule I controlled substance. Because 27 the charged conspiracy in Defendant’s case ran from before that date to mid-2012, the government charged MDPV both as an analogue (Count 1) and a controlled substance 28 comparator (Counts 3 and 5). For Counts 3 and 5, a-PVP, a-PBP, and MPPP were alleged to be analogues to MDPV. See CV Doc. 52 at 2-3. 1 months and sentenced Defendant to 180 months in prison on each count, to be served 2 concurrently, followed by 60 months of supervised release. CR Docs. 566, 585 at 43. The 3 Ninth Circuit affirmed the conviction and sentences. United States v. Lane, 616 Fed. 4 App’x. 328 (9th Cir. 2015). The Court denied Defendant’s first habeas motion under 28 5 U.S.C. § 2255. CR Doc. 32. 6 B. New Material. 7 In 2018, Defendant’s former attorney told him that documents produced by the 8 United States in an analogue drug case pending in the Northern District of Texas, United 9 States v. Gas Pipe, Inc., were potentially exculpatory in his case. CV Doc. 21 at 9. The 10 Gas Pipe documents include emails between two subdivisions of the Drug Enforcement 11 Administration (“DEA”): the Office of Diversion Control, Drug and Chemical Evaluation 12 Section (“DCE”), which determines whether a substance qualifies as a drug analogue, and 13 the Operational Support Division, Office of Forensic Sciences (“FS”), which specializes in 14 identifying unknown substances. Id. at 9-11; CV Doc. 48 at 9. The Gas Pipe material 15 contains three items of interest here. 16 First, in April 2011, DEA circulated a draft monograph concluding in the Prong 1 17 analysis that MDPV is structurally similar to MDEA, a scheduled substance under the 18 CSA. CV Doc. 21-1 at 124-29. FS disagreed, opining in emails that MDPV and MDEA 19 were different in structure. Id. at 136-37. FS recommended that the monograph not be 20 published until DEA’s Analogue Committee – which makes final decisions on analogue 21 identifications – reached a consensus on the issue. Id. at 140. After additional back and 22 forth, DCE decided not to publish the monograph. Id. at 142. DEA never published the 23 MDPV-MDEA monograph. See CV Doc. 48 at 29. 24 In October 2011, DEA listed MDPV as a Schedule I controlled substance, meaning 25 that for uses arising after that date it was covered by the CSA and need not be considered 26 an analogue under the Analogue Act. CV Doc. 48 at 13. In January 2012, DEA issued a 27 monograph concluding that MDPV was substantially similar to methcathinone, another 28 Schedule I controlled substance and the comparator substance charged in Count 1. CV 1 Doc. 21-1 at 154-62. This determination would be relevant to cases, like Defendant’s, 2 which involved the use of MDPV before it became a controlled substance. 3 Second, the Gas Pipe material suggests that DCE and FS may have used different 4 methodologies for evaluating structural similarity. At Defendant’s trial, the government’s 5 expert, Dr. Thomas DiBerardino, used two-dimensional (“2D”) drawings to opine that the 6 charged analogues were structurally substantially similar to scheduled drugs. Defendant’s 7 experts asserted that three-dimensional (“3D”) models were required to make a substantial 8 similarity determination. FS chemists stated in the April 2011 emails that MDPV and 9 MDEA were not substantially similar in part because of their 3D structures. CV Doc. 21- 10 1 at 136-37. 11 Third, the Gas Pipe material indicated that DCE proceeded with some analogue 12 identifications without FS’s concurrence, and in some cases despite FS’s opposition, as 13 early as November 2011. Id. at 151; see also CV Doc. 49 at 8. Defendant asserts that this 14 is contrary to Dr. DiBerardino’s suggestion at trial that DEA identifies a substance as an 15 analogue only when there is agreement among all DEA chemists. 16 C. Amended § 2255 Motion. 17 The Ninth Circuit authorized Defendant to file a second or successive § 2255 motion 18 based on discovery of the Gas Pipe material, and transferred the motion to this Court. CV 19 Doc. 4; 28 U.S.C. § 2255(h). The Court appointed counsel for Defendant (CV Doc. 14), 20 and she filed an amended motion in January 2020, asserting four grounds for relief: (1) a 21 Brady violation for non-disclosure of the Gas Pipe material; (2) failure by the government 22 to disclose exculpatory evidence that could be used for impeachment under Giglio v. 23 United States; (3) failure of the government to correct false testimony under Napue v. 24 Illinois; and (4) failure to disclose the prior statements of an expert witness as required by 25 the Jencks Act. CV Doc. 21. The government filed an answer, to which Defendant replied. 26 CV Docs. 34, 39. 27 Judge Fine issued a thorough, 70-page R&R on December 3, 2020, which found 28 that Defendant’s claims were procedurally defaulted and also failed on the merits. CV 1 Doc. 48 at 18-61. The R&R recommended that the Court deny a certificate of appealability, 2 Defendant’s “Motion for Release Pending Appeal” (CV Docs. 10, 15, 17), and his motion 3 for discovery and an evidentiary hearing (CV Docs. 24, 33, 41). 4 Defendant makes three objections to the R&R. First, he objects to Judge Fine’s 5 decision that he has not shown prejudice for purposes of the cause-and-prejudice exception 6 to procedural default, and her similar conclusion, on the merits, that he has not shown 7 prejudice for purposes of a Brady violation. Second, he objects to Judge Fine’s failure to 8 find Giglio, Napue, and Jencks Act violations. Third, he objects to Judge Fine’s denial of 9 his request for discovery and an evidentiary hearing. CV Doc. 49. 10 The Court “may accept, reject, or modify, in whole or in part, the findings or 11 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court must 12 review the R&R “de novo if objection is made, but not otherwise.” United States v. Reyna- 13 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court is not required to conduct 14 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 15 474 U.S. 140, 149 (1985); see 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 16 Relevant Legal Standards. 17 A. Procedural Default. 18 “Where a defendant has procedurally defaulted a claim by failing to raise it on direct 19 review, the claim may be raised in habeas only if the defendant can first demonstrate either 20 cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 21 U.S. 614, 622 (1998) (internal quotation marks and citations omitted). Defendant concedes 22 that he did not raise arguments based on the Gas Pipe material either on direct appeal or in 23 his initial § 2255 motion, but Judge Fine correctly found adequate cause for this procedural 24 default because the government failed to disclose the material. See CV Doc. 48 at 8; 25 Murray v. Carrier, 477 U.S. 478, 487 (1986) (external factors constituting cause for 26 procedural default include “a showing that the factual or legal basis for a claim was not 27 reasonably available to counsel.”). Neither party objects to this finding.3 28 3 At trial, the government disclosed that DEA at some point had considered MDPV 1 Judge Fine found, however, that Defendant failed to establish prejudice. CV Doc. 48 2 at 24-29. Because cause and prejudice are required to excuse a procedural default, she 3 recommended denial of the § 2255 motion. Defendant objects. See CV Doc. 49.4 4 “[T]he prejudice prong of the [procedural default] test requires demonstrating ‘not 5 merely that the errors at . . . trial created a possibility of prejudice, but that they worked to 6 his actual and substantial disadvantage, infecting his entire trial with error of constitutional 7 dimensions.’” United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quoting 8 United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in Frady). Defendant must 9 show “‘a reasonable probability’ that the result of the trial would have been different if the 10 suppressed documents had been disclosed to the defense.” Strickler v. Greene, 527 U.S. 11 263, 289 (1999) (citation omitted). 12 B. Review of Second or Successive Habeas Motions Under § 2244(b). 13 Even if Defendant shows cause and prejudice sufficient to overcome his procedural 14 default, he must also clear the high bar Congress has erected for a second or successive 15 § 2255 motion. Defendant must show that the “newly discovered evidence . . . , if proven 16 and viewed in light of the evidence as a whole, would be sufficient to establish by clear 17 and convincing evidence that no reasonable factfinder would have found the movant guilty 18 of the offense.” 28 U.S.C. § 2244(b)(2)(B)(ii); see also 28 U.S.C. § 2244(b)(4); United 19 States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir. 2000). This is a demanding 20 standard. The new evidence must, in effect, “clearly and convincingly prove the prisoner’s 21 innocence[.]” United States v. Buenrostro, 638 F.3d 720, 724 (9th Cir. 2011). The 22 Supreme Court has upheld the constitutionality of this stringent § 2244(b) requirement. 23 See Felker v. Turpin, 518 U.S. 651, 664 (1996).5 24 as an analogue of both MDEA and methcathinone, but had decided to recognize only methcathinone as the comparator to MDPV after DEA received “additional information.” 25 CV Doc. 48 at 23-24. Judge Fine correctly found that this mention of “additional information” failed to alert Defendant to the dissenting opinions within DEA about the 26 MDPV-MDEA comparison. Id. at 24. 27 4 Judge Fine also found that Defendant failed to establish his actual innocence. CV Doc. 48 at 29-30. No party objects to this finding. 28 5 Section 2244(b)(2)(B) has a second requirement. Defendant also must show that 1 This high threshold applies to second and successive habeas motions asserting 2 Brady claims. Brown v. Muniz, 889 F.3d 661, 674 (9th Cir. 2018) (“[W]e hold that Brown’s 3 Brady claim was ripe at the time of his first habeas petition because the alleged 4 constitutional violation – failure to turn over the Hockett, Hutchings, and Gin information 5 – occurred before Brown’s trial even began. Thus, § 2244(b) applies to Brown’s claim and 6 he is entitled to file a second or successive habeas petition only if he satisfies that 7 provision’s gatekeeping requirements.”). Section 2244(b) effectively “elevates the 8 ‘reasonable probability’ standard for Brady materiality to a more demanding ‘clear and 9 convincing’ standard.” Id. at 675. If Defendant does not satisfy the § 2244(b) standard, 10 the Court “must dismiss the motion that [the court of appeal has] allowed the applicant to 11 file, without reaching the merits of the motion[.]” Villa-Gonzalez, 208 F.3d at 1164-65 12 (quoting Bennett v. United States, 119 F.3d 468, 470 (7th Cir. 1997)); see also 28 U.S.C. 13 § 2244(b)(4).6 14 The fact that the Ninth Circuit previously authorized Defendant to file his second or 15 successive motion does not excuse this Court from determining whether he satisfies the 16 § 2244(b) requirements. The Ninth Circuit considered only whether Defendant had made 17 a prima facie showing “of possible merit to warrant a fuller exploration by the district 18 court.” Henry v. Spearman, 899 F.3d 703, 706 (9th Cir. 2018) (quoting Cooper v. 19 Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004)) (emphasis in Cooper); 28 U.S.C. 20 § 2244(b)(3)(C). This determination does not preclude a district court from determining 21 whether the statutory threshold has been met. See Villa-Gonzalez, 208 F.3d at 1164 22 (“Villa-Gonzalez contends that our grant of permission forecloses the district court from 23 finding his motion does not meet the statutory requirements. Villa-Gonzalez’s contention 24 “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i). Defendant meets this standard 25 because the Gas Pipe material was not previously disclosed by the government. 26 6 The Brown case cited above was a state-conviction habeas petition under 28 U.S.C. § 2254. 889 F.3d at 666. The Ninth Circuit has made clear, however, that the habeas 27 threshold found in § 2244(b) apples as well to federal-conviction petitions under § 2255, like this one. See Villa-Gonzalez, 208 F.3d at 1164 (“Section 2255, by its terms, expressly 28 incorporates the procedures for certification of the filing of a second or successive motion set forth in section 2244.”). 1 lacks merit.”). On the contrary, the “district court must conduct a thorough review of all 2 allegations and evidence presented by the prisoner to determine whether the motion meets 3 the statutory requirements for the filing of a second or successive motion.” Id. at 1164-65 4 (emphasis added). The statute itself makes this clear: “A district court shall dismiss any 5 claim presented in a second or successive application that the court of appeals has 6 authorized to be filed unless the applicant shows that the claim satisfies the requirements 7 of this section.” 28 U.S.C. § 2244(b)(4) (emphasis added). Thus, the Court must determine 8 whether the Gas Pipe material, “if proven and viewed in light of the evidence as a whole, 9 would be sufficient to establish by clear and convincing evidence that no reasonable 10 factfinder would have found [Defendant] guilty of the offense.” 28 U.S.C. 11 § 2244(b)(2)(B)(ii). 12 C. The Court’s Approach in this Case. 13 The parties and Judge Fine devote significant time to evaluating the prejudice prong 14 of the procedural default analysis and the similar prejudice requirement under Brady. The 15 Court will not address these subjects because Defendant’s second or successive motion 16 fails to clear the high statutory threshold in § 2244(b)(2)(B)(ii). As a result, his motion 17 must be dismissed regardless of whether he can excuse his procedural default or show 18 Brady prejudice. 19 Analysis. 20 A. Proof Requirements of the Analogue Act. 21 To accurately evaluate Defendant’s arguments, one must understand the purpose, 22 structure, and proof requirements of the Analogue Act. The statute was enacted to address 23 the rapidly evolving field of “designer drugs” – to enable the government to stem the flow 24 of dangerous chemicals designed to mimic the effects of Schedule I and II controlled 25 substances but which, because of their slightly modified chemical structures, are not 26 actually controlled by the CSA. As the Eighth Circuit explained: “Because manufacturers 27 of illegal drugs have become adept at tinkering with the molecular structure of controlled 28 substances while retaining the effects those substances produce, the analogue statute is 1 aimed at prohibiting innovative drugs before they are specifically listed in the schedules as 2 controlled substances.” United States v. McKinney, 79 F.3d 105, 107-08 (8th Cir. 1996). 3 The evidence in this case provides an apt illustration. Defendant was well aware of 4 the Analogue Act and modified his lucrative designer drug manufacturing operation to stay 5 a step ahead of law enforcement, despite knowing that the drugs he was making and 6 shipping around the world were very dangerous. See, e.g., CV Docs. 34-7 at 1-3; 34-8 at 7 2; 34-9 at 2; 34-11 at 2-3. When one analogue became a controlled substance, he switched 8 to another. See, e.g., CV Doc. 34-6 at 43-44. These facts are set forth at some length, with 9 record citations, in the government’s response to Defendant’s § 2255 motion. See CV Doc. 10 34 at 17-23. 11 In passing the Analogue Act to regulate these rapidly-evolving substances, Congress 12 required that they be substantially similar in chemical structure and effect to already- 13 scheduled controlled substances, but Congress did not adopt a precise scientific definition. 14 To the contrary, courts recognize that “the actual determination of substantial similarity is 15 not a scientific one.” United States v. Requena, 980 F.3d 30, 47 (2d Cir. 2020). 16 “[S]ubstantial similarity is not itself a scientific standard,” id. (emphasis in original), and 17 “there is no indication that Congress intended the words ‘substantially similar’ to have a 18 specialized scientific meaning,” United States v. Bays, No. 3:13–CR–0357–B, 2014 WL 19 3764876, at *3 (N.D. Tex., July 31, 2014) (citation omitted). Consequently, “these words 20 should be given their ordinary meaning.” Id. (citation omitted). As Dr. DiBerardino 21 testified at Defendant’s trial, substantial similarity “is an opinion. It’s not a scientific fact.” 22 Doc. 667 at 159. 23 This Court covered similar ground in Defendant’s criminal case: 24 Defendants . . . argue that the Analogue Act is unconstitutionally vague because it does not define the terms “chemical structure,” “substantially 25 similar,” or “human consumption,” leaving ordinary people to guess at whether the Act applies in a particular case. Defendants note that there is no 26 dictionary definition of “substantially similar,” and the experts in this case could not cite any scientific definitions of “chemical structure.” Courts have 27 found, however, that the relevant inquiry for purposes of the Analogue Act 28 is how an ordinary person would interpret these terms, not how they might be technically defined. The Eighth Circuit found in McKinney that a 1 reasonable layperson could decide by comparing the chemical diagrams of two substances whether their structures were substantially similar for 2 purposes of the Analogue Act. The Fourth Circuit followed McKinney’ s reasoning in [United States v. Klecker], 348 F.3d at 72, which found that, 3 notwithstanding other important differences pointed out by the experts, the structural similarities between two substances represented by chemical 4 diagrams were sufficient “to put a reasonable person on notice that Foxy might be regarded as a DET analogue.” As the Fifth Circuit concluded in 5 [United States v, Granberry], 916 F.2d at 1010, the definition of a controlled substance analogue is stated “in terms readily comprehensible to the ordinary 6 reader” and therefore “provides adequate notice of what conduct is prohibited.” 7 Lane, 2013 WL 3199841 at *7. 8 As a result of this approach in the Analogue Act, “there is no one avenue that an 9 expert must take to determine whether two chemical compounds are substantially similar.” 10 Bays, 2014 WL 3764876 at *7. Courts have refused to endorse a single method of 11 analyzing chemical structure, rejecting arguments that expert chemists should be excluded 12 under Daubert because they prefer 2D over 3D analysis, and repeatedly finding 2D analysis 13 to be a reliable method of determining substantial similarity. See, e.g., Requena, 980 F.3d 14 at 47 (district court had “ample basis to conclude” that expert’s substantial similarity 15 opinion was the product of reliable methods where, among other things, expert described 16 chemical structure using two-dimensional diagrams); Bays, 2014 WL 3764876 at *8 17 (“[T]he Court agrees with the Government that two-dimensional modeling is a reliable 18 method of comparing the chemical structure of two compounds”); United States v. Brown, 19 279 F. Supp. 2d 1238, 1244 (S.D. Ala. 2003) (experts employed an accepted method of 20 assessing substantial similarity by viewing molecules in their two-dimensional static state). 21 Because substantial similarity is not a technical term, but a matter to be decided by 22 the jury on the basis of the ordinary meaning of those words, the fact that chemists within 23 DEA may disagree on substantial similarity has not been viewed by courts as particularly 24 relevant. The Ninth Circuit, for example, held in an unpublished opinion that “the 25 Analogue Act cases require the jury to decide whether a substance is a controlled substance 26 analogue based on the expert testimony presented at trial. DEA’s internal decisions to treat 27 the substance at issue as analogues would thus not help [the defendant] prepare a defense.” 28 1 United States v. Way, 804 Fed. App’x. 504, 509 (9th Cir. 2020) (emphasis added). The 2 Ninth Circuit held: 3 The district court did not err in not allowing testimony about DEA’s internal 4 processes for controlled substance analogue determinations. . . . The district court ruled that since the jury would decide what was a controlled substance 5 analogue, any internal DEA disagreement as to whether 5-F-UR-144 was an 6 analogue was irrelevant. We agree with the district court. Id. 7 Defendant’s arguments must be evaluated against this background. The statutory 8 scheme does not demand scientific precision. The jury in Defendant’s case was required 9 to make the substantial similarity finding after hearing competing opinions from chemistry 10 experts on both sides. The fact that other experts may disagree on the same issue – even 11 within DEA – is not as probative as Defendant suggests. 12 B. Objection to Judge Fine’s Prejudice Decisions. 13 Judge Fine found that the government’s failure to produce the Gas Pipe material 14 was not prejudicial to Defendant’s case. Defendant objects, and the Court accordingly will 15 undertake de novo review. 16 Testimony of Dr. DiBerardino. 17 Defendant asserts that the R&R takes an unduly restrictive view of the Gas Pipe 18 material by concluding it is irrelevant to his case. Even though the material does not 19 concern the analogues charged in his case, Defendant argues, it reveals a “very broad and 20 ongoing dispute” within DEA about “how to determine whether any alleged substance was 21 substantially similar to a scheduled substance, what methods were used, and at what point 22 there was enough ‘substantial similarity’ between the two substances to make such a call.” 23 CV Doc. 49 at 8, 11. Defendant contends that access to the Gas Pipe evidence would have 24 enabled him to impeach Dr. DiBerardino’s testimony that DEA reached its analogue 25 determinations through consensus; call FS chemists to testify about Dr. DiBerardino’s 26 flawed methodology; and reinforce the testimony of the defense expert who opined that 3D 27 methods were more appropriate and that DEA’s substantial similarity determinations were 28 1 arbitrary. Id. at 2-13. This is particularly significant, Defendant asserts, because the jury 2 needed to determine structural substantial similarity to reach a guilty verdict, and the 3 prosecution’s sole evidence on this issue was Dr. DiBerardino’s testimony. Id. at 14-15.7 4 The Court has reviewed the trial testimony of Dr. DiBerardino and does not find it 5 as vulnerable as Defendant suggests. Defendant argues that the Gas Pipe material shows 6 DEA did not always operate by consensus, that there were disagreements between DCE 7 and FS, and that DEA sometimes identified a drug analogue despite internal disagreement. 8 But Dr. DiBerardino did not present a significantly different picture at trial. 9 Dr. DiBerardino is part of DCE, the entity within DEA charged with making 10 analogue identifications. CR Doc. 667 at 50.8 He did testify that DEA acts “when 11 everybody is onboard” and in “agreement.” Id. at 58-59, 119. But taken in context, the 12 Court cannot conclude that these statements led the jury to believe there is never 13 disagreement among DEA chemists on the question of structural substantial similarity. 14 Dr. DiBerardino testified that initial analogue determinations within DCE often 15 prompt “discussions and comparisons and debates, not only within our immediate section, 16 but then we go to [FS] chemists . . . and have them also weigh in.” CR Doc. 667 at 54; see 17 also id. at 55 (DCE seeks “feedback” from FS chemists). He acknowledged that FS 18 chemists may disagree with a DCE opinion that a potential analogue is structurally 19 substantially similar to a Schedule I or II substance, opining instead that the substance 20 “should be compared to something else” or that “there’s a problem with [the proposed] 21 comparison.” Id. at 55. He testified that “whatever the case may be, we take their feedback 22 and ultimately determine whether or not something is substantially similar.” Id. 23 24 7 Defendant’s argument on this point includes Dr. DiBerardino’s testimony before the Court in a Daubert hearing that “when we do these reviews, there is a very, very, very 25 high degree of certainty.” CV Doc. 34 at 15. But Defendant does not challenge the Court’s Daubert ruling, and the jury did not hear the Daubert testimony. The testimony therefore 26 is not relevant to the § 2244((b) threshold, which focuses on what effect the Gas Pipe material would have had at trial. 27 8 Defendant cites Dr. DiBerardino’s testimony in a partial transcript filed during the 28 trial. See CR Doc. 439. The Court will cite to the official transcript filed after trial. See CR Doc 667. 1 Dr. DiBerardino was specifically asked whether there is ever disagreement within 2 DEA about an analogue determination: 3 Q: So you talked about doing your write-up and then getting a review. 4 Are there times during the review process that somebody disagrees? 5 A: Oh, yeah. 6 Q: And what happens? 7 8 A: Well, then we discuss it. And, I mean, sometimes a disagreement may be based on – well, it’s an opinion. So the disagreement may be that the 9 person is – had – could be swayed, let’s say, or the person cannot be. But usually what happens, if there’s one person who disagrees, we’re all kind of 10 in a – on the fence. It’s not like everybody is sure this is absolutely 11 substantially similar and then one person thinks it’s not. That’s not how it usually works. So I think I’m exaggerating this scenario right now. But what 12 happened is that we may be on the fence and then somebody will push us 13 over and say, no, and then we will agree. Maybe not. And we will step back from that. 14 15 CR Doc. 667 at 59-60. 16 Significantly, Dr. DiBerardino testified that there is no fixed scientific method for 17 determining substantial similarity in chemical structure. Id. at 60 (there is no “bright-line 18 test”; “it’s not bean counting”). He explained that “substantially similar” is not a phrase 19 from chemistry or other sciences, but instead comes from the Analogue Act. As a result, 20 any conclusion that a substance is structurally substantially similar “is an opinion,” “not a 21 scientific fact.” Id. at 115-16, 158-59. Indeed, Dr. DiBerardino confirmed that “[t]here is 22 no written protocol, rules, regulations on how DEA makes their determinations of 23 substantial similarity.” Id. at 173-74. DEA’s identification of an analogue is “all opinion.” 24 Id. at 174. 25 Although the Defendant tried at trial to make much of this fact, suggesting to the 26 jury that it rendered the Analogue Act arbitrary, Dr. DiBerardino explained that DEA’s 27 identification of an analogue has no legal effect. The monographs issued by DEA 28 explaining why a substance is substantially similar in structure and effect to a controlled 1 substance are not legal documents. CR Doc. 667 at 120. They state opinions. Id. at 174. 2 The prosecution in analogue cases has the burden of proving to the jury’s satisfaction that 3 the statutory requirements have been met – that the alleged analogue is substantially similar 4 in structure and effect to a Schedule I or II drug. In response to a question from the 5 prosecutor, Dr. DiBerardino explained: “We don’t determine if something is an analogue. 6 That’s your job.” Id. at 120.9 7 Dr. DiBerardino explained that the final decision to opine that a substance is an 8 analogue is made by DEA’s Analogue Committee. CR Doc. 667 at 119. DEA publishes 9 a monograph identifying the analogue, but its determination has no binding legal effect. 10 Id. at 120, 199 (“[T]hey’re not legal documents. They don’t modify the CSA. It’s not 11 regulatory. It’s just our evaluation.”). The burden then rests on prosecutors to prove 12 substantial structural similarity in criminal trials. See, e.g., U.S. v. Klecker, 228 F. Supp. 13 2d 720, 727 (E.D. Va. 2002), aff’d, 348 F.3d 69 (4th Cir. 2003). 14 The Gas Pipe material is in many respects consistent with Dr. DiBerardino’s 15 testimony that there can be discussion, debate, and disagreement within DEA on whether 16 a substance is structurally substantially similar to a listed drug, and that the final decision 17 is made by the DCE and Analogue Committee. The April 2011 emails cited by Defendant 18 show DEA scientists discussing and disagreeing on the proposed MDPV-MDEA analogue 19 comparison, and offering opinions rather than precise formulas. See, e.g., CV Doc. 21-1 20 at 17-18 (FS chemist discussing chemical structure of MDEA and MDPV and noting that 21 22 9 In asserting that Dr. DiBerardino testified that DEA’s decisions are always unanimous, Defendant emphasizes this excerpt: “I could almost guarantee this would not 23 go forward as an analogue. Because if there is any doubt, we don’t want to push something that is going to waste a lot of people’s time and – I mean, it would be wrong.” 24 CV Doc. 49 at 5 (emphasis in Defendant’s brief). But this testimony is taken out of context. Dr. DiBerardino was responding to a question about whether water could ever be identified 25 as an analogue to hydrogen peroxide – a hypothetical comparison posited by defense counsel during opening statements to suggest that virtually any substance can be viewed 26 as substantially similar to another. CR Doc. 667 at 122-23. Dr. DiBerardino responded that someone theoretically could argue that water and hydrogen peroxide are structurally 27 similar, but he then said – starting Defendant’s quoted statement – that he could almost guarantee this would not go forward as an analogue and “would be wrong.” Id. The Court 28 does not view this testimony as a general comment on DEA procedures, but as a response to a specific hypothetical posed by Defendant. 1 “in [FS’s] opinion, they are not substantially structurally similar.”); id. at 19 (FS chemist 2 noting that “[w]hile there are some obvious similarities in the structures” of MDPV and 3 MDEA, they are “not substantially similar in structure in my opinion.”). Because of this 4 disagreement, DEA chose not to identify MDVP as an analogue of MDEA. Id. at 142. The 5 Gas Pipe material confirms what Dr. DiBerardino testified to: that there can be discussion 6 and debate within DEA about an analogue identification and, as an FS chemist testified, 7 that DCE is “the authoritative body within DEA to make these decisions.” CV Doc. 23-1 8 at 49.10 9 The Gas Pipe material would have enhanced Defendant’s cross-examination of Dr. 10 DiBerardino. The fact that other DEA chemists disagreed with the MDPV-MDEA 11 conclusion reached by Dr. DiBerardino’s group, and that DEA ultimately chose not to 12 adopt the conclusion, could undermine his credibility to some degree. But the fact remains 13 that these are opinions, not scientific conclusions. Dr. DiBerardino readily acknowledged 14 that there is debate within DEA about them, and he clearly stated that the DEA opinions 15 have no legal effect. The jury is charged with making the binding analogue determinations. 16 See Way, 804 Fed. App’x. at 509. 17 What is more, Dr. DiBerardino did not base his opinions about the analogues in 18 Defendant’s case on the fact that DEA had found them to be analogues. His testimony 19 20 10 Defendant asserts that “debate was raging within the DEA as to numerous substances and constituted a fundamental disagreement within DEA about how to 21 determine ‘substantial similarity’ between two substances.” CV Doc. 48 at 8. Defendant specifically cites the testimony of an unnamed DEA chemist in the Gas Pipe case. Id. In 22 addition to the disagreement within DEA on the MDPV-MDEA comparison, the chemist also identified disagreements with respect to JWH-251, UR-144, and AM-694. CV Doc. 23 23-1 at 21, 33-35. When asked how many substances FS disagreed on, the chemist testified that there were at least a dozen. Defendant contends that another DEA chemist, Dr. Arthur 24 Berrier, stated in an online article that there were “dozens” of substances on which no consensus was reached. CV Doc. 49 at 12. But the cite Defendant provides (CV Doc. 21- 25 4 at 40) does not exist in the record. Defendant also notes that Judge Fine cited the article, which she did (see CV Doc. 48 at 44), but the page she cites makes no mention of dozens 26 of substances (see CV Doc. 21-2 at 40). Even assuming there was disagreement on many substances, Defendant provides no evidence of DEA disagreement about any of the 27 analogues charged in this case. Disagreements on other substances would only underscore what was already abundantly clear during trial – that chemists and others can disagree on 28 substantial similarity opinions, and it was up to the jury to make the decision on the basis of the expert testimony before them. 1 instead comprised 65 pages of detailed chemical structure explanations to show why he 2 believed each of the charged substances was structurally substantially similar to a 3 controlled substance.11 See CR Doc. 667 at 63-118. In contract to these extended and 4 detailed chemistry discussions, Dr. DiBerardino’s testimony about internal DEA 5 procedures – testimony emphasized by Defendant as suggesting that unanimity is always 6 obtained – comprised less than ten pages. Id. at 53-60, 118-19. DEA procedures were not 7 a central part of his testimony. And as is evident from the cross-examination of Dr. 8 DiBerardino and the defense experts, the focus in this case was on whether the substances 9 were in fact structurally substantially similar, not on DEA procedures. For all of these 10 reasons, the Court concludes that the cross-examination value added by the Gas Pipe 11 material would have been marginal at best. 12 Claimed Prejudice to All Substances. 13 Defendant also objects to Judge Fine’s conclusion that the Gas Pipe documents do 14 not concern any analogue at issue in Defendant’s trial. CV Doc. 49 at 7. Although this is 15 a correct statement, Defendant argues that the Gas Pipe material shows that DCE and FS 16 frequently disagreed on whether Prong 1 of the analogue determination was satisfied, and 17 the documents therefore implicate all of the analogues at issue in Defendant’s trial. Id. at 18 7-8. But the marginal relevance of any disagreement within DEA, as discussed above, is 19 even more attenuated for the analogues in this case, for which Defendant presents no 20 evidence of internal disagreement. 21 22 23 11 For example, Dr. DiBerardino provided this explanation – while showing the jury a diagram – to support his opinion that MDPV is an analogue to methcathinone: “Row A 24 is the phenethylamine core which we identified on the previous page. And it’s bold, so you can see it sitting there, and obviously, they’re in both cases. On Row B is the alpha 25 position. Now, this alpha position has what’s called a carbonyl carbon – it’s an oxygen attached – a double-bonded oxygen attached to a carbon. It’s called a carbonyl group. And 26 this particular attachment, even though it’s kind of small and inconsequential, is pretty important, actually, because it actually further subcategorizes the phenethylamine as 27 what’s been commonly called synthetic cathinones. . . . Row C is the substitution on the alpha position that we identified previously. What’s significant about this is that it’s a – 28 they’re carbon atoms. In one case, in the methyl – in the methcathinone, there is only one carbon group. CH3. It’s called a methyl group.” CR Doc. 667 at 97. 1 Defendant also argues that FS’s use of a 3D approach, as revealed in the Gas Pipe 2 documents, would have enabled him to undercut Dr. DiBerardino’s use of a 2D approach 3 at trial and his testimony that 3D models are unnecessary. Id. at 10-11. Although this 4 information also would have added some marginal benefit to the cross-examination, the 5 Court does not find it to be significant. The contrast between 2D and 3D analyses was a 6 prominent part of Defendant’s trial. Dr. DiBerardino testified that he relies on 2D drawings 7 of chemical structure because they convey to a trained chemist all of the information 8 needed to form a substantial similarity opinion. CR Doc. 667 at 65, 79. He also stated that 9 he had examined each of the charged analogues in this case using 3D techniques, and that 10 the 3D analysis confirmed his opinions. Id. at 68-69, 80-81. Indeed, he presented 3D 11 illustrations of each of the charged substances to the jury, enabling them to consider 3D 12 analysis in their deliberations and illustrating why his opinions, although initially formed 13 using 2D drawings, were consistent with a 3D inquiry. See, e.g., id. at 68-69. 14 Defense counsel vigorously cross-examined Dr. DiBerardino on 2D versus 3D 15 analyses. Id. at 137-48. The defense rebuttal expert, Dr. Patrick Woster, testified about 16 why analogue opinions should not be based on 2D models, including that such models fail 17 to take into account various factors relevant to making scientifically sound analogue 18 determinations. CR Doc. 674 at 42-45. Defense expert Dr. Nicholas Cozzi testified that 19 2D models are a “shorthand method” from which a person would be “unable to reach a 20 conclusion” about a substance. Id. at 107, 170. And in closing argument, defense counsel 21 reiterated these points for the jury, stating that “true scientists” avoid 2D modeling because 22 it is scientifically unsound. CR Doc. 675 at 105, 111. 23 The Gas Pipe material would have revealed that at least some FS chemists within 24 DEA prefer 3D analysis, which would have bolstered Defendant’s 3D arguments. But 25 because the jury was already well aware of those arguments, and Dr. DiBerardino had used 26 3D analysis to confirm his opinions, the Court cannot conclude that the Gas Pipe material 27 would have made a significant difference. The issue was whether the analogues charged 28 1 in this case were structurally substantially similar, and the jury was well equipped by the 2 evidence to make that decision, including considering 3D analysis if relevant. 3 The Court also notes that the FS witness quoted in the Gas Pipe material testified 4 that a difference of approach within DEA is not necessarily a bad thing. He said: “I’m not 5 sure if we ever strove to achieve consensus or duplication on how we’re going to approach 6 the matter. That’s not efficient to have two groups doing the exact same thing.” CV 7 Doc. 23-1 at 48-49.12 8 Defendant Cannot Satisfy the Standard in 28 U.S.C. § 2244(b). 9 To satisfy the § 2244(b) standard, Defendant must show that the Gas Pipe material, 10 “viewed in light of the evidence as a whole, would be sufficient to establish by clear and 11 convincing evidence that no reasonable factfinder would have found [him] guilty of the 12 offense.” 28 U.S.C. §§ 2244(b)(2)(B)(ii) (emphasis added). For several reasons, 13 Defendant cannot meet this standard. 14 First, as Judge Fine observed, the internal DEA dissents discussed in the Gas Pipe 15 material involve analogues never charged in Defendant’s case. See, e.g., CV Doc. 48 at 16 29, 40, 50-52. Defendant’s primary argument – that existing evidence of internal DEA 17 disagreement about non-charged substances suggests there must have been disagreements 18 about charged substances – is simply speculative. CV Doc. 21 at 24-25, 44; Jones v. 19 Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“It is well-settled that conclusory allegations 20 which are not supported by a statement of specific facts do not warrant habeas relief.”) 21 (citations omitted). 22 12 Gas Pipe material from 2016 and 2017 – well after Defendant’s conviction – 23 shows that DEA listed the substance a-PPP as a “probable analogue” of MDPV and indicate that DCE may have issued an internal opinion about it. See CV Doc. 39-1 at 41. 24 Defendant argues that this material is exculpatory given the government’s statement, in its response to Defendant’s § 2255 motion, that it considered charging Defendant with a-PPP, 25 but changed its mind after concluding that a-PPP was “less potent” than the other charged substances Defendant was selling. CV Doc. 48 at 50-51. Defendant argues that the defense 26 could have used this to undermine DEA’s substantial similarity decisions before the jury by showing that DEA had a practice of listing substances as potential analogues, despite 27 earlier concluding that those same substances were “too potent” to qualify as substantially similar under Prong Two. CV Doc. 49 at 15-16. But as Judge Fine stated in the R&R, this 28 argument is irrelevant because a-PPP was never charged in Defendant’s case and the referenced material was created well after his conviction. CV Doc. 48 at 50-52. 1 Second, to the extent the Gas Pipe documents relate to MDPV, an analogue charged 2 in Count 1, they concern only the proposed MPDV-MDEA comparison that DEA never 3 adopted. See CV Doc. 21-1 at 124-29. The government charged MDPV in Count 1 as an 4 analogue to methcathinone. See CV Doc. 52 at 2. The Gas Pipe documents contain no 5 internal discussion within DEA about the MDPV-methcathinone comparison. 6 Third, to find Defendant guilty on each count, the jury needed to find that only one 7 of the charged substances was an analogue. The jury found that all of the charged 8 substances were analogues – five in Count 1, five in Count 3, and three in Count 5. CR 9 Doc. 676 at 3-5; CV Doc. 48 at 29. 10 Fourth, Dr. DiBerardino acknowledged that the DEA review process involves 11 internal disagreement. CR Doc. 667 at 59. This was not unclear testimony. When asked 12 if chemists within DEA ever disagree on analogue determinations, he said “Oh, yeah.” CR 13 Doc. 667 at 59-60. He also acknowledged that substantial similarity determinations are 14 matters of opinion. Id. 15 Fifth, the Court cannot conclude that Defendant was prejudiced, as he claims, by his 16 inability to call FS chemists to testify about their use of 3D modeling. Those chemists 17 might well have agreed with Dr. DiBerardino’s conclusions on the analogues at issue in 18 this case.13 And as already noted, the 2D versus 3D dispute was presented squarely by 19 defense experts during the trial. 20 Sixth and most importantly, to satisfy the § 2244(b) standard, Defendant must show 21 by clear and convincing evidence that the Gas Pipe material would have so altered the 22 quantum of proof at trial that “no reasonable factfinder” would have found him guilty. 28 23 U.S.C. §§ 2244(b)(2)(B)(ii). Even if the material would have enabled a more effective 24 cross-examination of Dr. DiBerardino, the jury still could have chosen to accept his expert 25 opinion about the structural similarities of the analogues. The Gas Pipe material would 26 not have prevented Dr. DiBerardino from testifying and giving his detailed explanations of 27 13 Even if the numbers from Dr. Berrier are accepted (disagreeing with about 15 out 28 of 80 DCE analogue determinations, see CV Doc. 21-2 at 41), FS chemists agreed with DCE far more often than they disagreed. 1 why the chemical structures were substantially similar. CR Doc. 667 at 63-118. And the 2 Court cannot conclude that the material would have so destroyed his credibility that no 3 reasonable juror would have believed him. Dr. DiBerardino testified on the basis of his 4 Ph.D. in chemistry, his 19 years as a DEA chemist specifically tasked with implementing 5 federal law by assessing the chemical structures of various substances, and his years of 6 teaching law enforcement agencies around the world how to do chemical analyses. CR 7 Doc. 667 at 49-50, 52. Faced with more evidence of internal disagreement at DEA and 8 support for 3D models, the jury still could have chosen to accept Dr. DiBerardino’s expert 9 opinions. The Gas Pipe material and other information Defendant hopes to obtain through 10 discovery might, if available to the defense at trial, have intensified the factual dispute 11 before the jury. But Defendant cannot show that it would “clearly and convincingly prove 12 [his] innocence.” Buenrostro, 638 F.3d at 724. That is what Defendant must show – that 13 “no reasonable factfinder” would have accepted Dr. DiBerardino’s opinions and found him 14 guilty. 28 U.S.C. § 2244(b)(2)(B)(ii). 15 Granted, this is an extremely high bar. It eclipses the “reasonable probability” 16 standard of procedural default and Brady prejudice, and makes it much harder for 17 Defendant to obtain habeas relief in this second or successive motion. But the Ninth Circuit 18 has accepted, as it must, the high bar set by Congress: 19 We appreciate that our application of AEDPA’s second or successive bar to 20 Brady claims may seem harsh. Why should courts saddle petitioners with a stringent standard of proof that is a function of the government’s own 21 neglect, or worse, malfeasance? The answer is that such is the framework 22 Congress established. That a petitioner’s burden is higher under these circumstances may seem inequitable, but that is a policy, not a legal, 23 objection. Through § 2244(b), Congress made the legislative choice to 24 prioritize state-federal comity and the finality of criminal proceedings over affording petitioners multiple opportunities to invoke the federal courts’ 25 jurisdiction under the same standard of review—a choice that the Supreme Court has definitively held to be consistent with the [Constitution]. 26 27 28 1 Brown, 889 F.3d at 676.14 2 Because Defendant has not shown that the Gas Pipe material meets the § 2244(b) 3 standard, the Court must dismiss his motion. 28 U.S.C. § 2244(b)(4); Villa-Gonzalez, 208 4 F.3d at 1164-65. 5 C. Objection to Giglio and Napue Findings. 6 Defendant objects to Judge Fine’s failure to find Giglio and Napue violations, 7 incorporating by reference his procedural default and Brady prejudice arguments. See CV 8 Doc. 49 at 16-17. Giglio violations require the same proof as procedural default prejudice 9 – “a reasonable probability that, had the evidence been disclosed, the result of the 10 proceeding would have been different[.]” Mellen v. Winn, 900 F.3d 1085, 1089 (9th Cir. 11 2018). Napue violations require Defendant to show that the evidence at trial was actually 12 false, the prosecution knew or should have known it was false, and the false evidence was 13 material. United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). But even if 14 Defendant could show that the Giglio or Napue standards are met, he would again have to 15 clear the § 2244(b) threshold, which he cannot do. 16 D. Objection to Jencks Act Findings. 17 Defendant argued in his amended § 2255 motion that the government’s failure to 18 disclose the Gas Pipe material violated the Jencks Act, which requires the Court, on motion 19 of the defendant, to order the United States to produce any “statement” of a witness in the 20 government’s possession which relates to the subject matter about which the witness has 21 testified. 18 U.S.C. § 3500(b). Jencks Act claims are not subject to § 2255 habeas review. 22 Beavers v. United States., 351 F.2d 507, 509 (9th Cir. 1965) (citing Black v. United States, 23 269 F.2d 38, 41-42 (9th Cir. 1959)); Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987) 24 (because the Jencks Act involves “evidentiary rules governing federal trials, [it does] not 25 invoke constitutional considerations.”). In any event, because Defendant makes no specific 26 27 14 Brown mentions state-federal comity because, as already noted, it was a § 2254 28 petition about a state-court conviction. The second priority identified by the Ninth Circuit – finality of criminal proceedings – applies in this § 2255 petition. 1 objections to the R&R’s recommendation on his Jencks Act claims, the Court has no 2 obligation to address them. Thomas, 474 U.S. at 149. 3 Motion for Discovery and Evidentiary Hearing. 4 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to 5 discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). 6 A court may, however, allow discovery in § 2255 cases for good cause. See Rules 7 Governing Section 2255 Cases 6(a). Good cause exists “where specific allegations before 8 the court show reason to believe that the petitioner may, if facts are fully developed, be 9 able to demonstrate that he is . . . entitled to relief[.]” Bracy, 520 U.S. at 909 (quoting 10 Harris v. Nelson, 394 U.S. 286, 300 (1969)). Similarly, to show that he is entitled to an 11 evidentiary hearing, a movant must allege “specific factual allegations that, if true, state a 12 claim on which relief could be granted.” United States v. Leonti, 326 F.3d 1111, 1116 (9th 13 Cir. 2003) (internal quotations and citations omitted). 14 Defendant requests discovery and an evidentiary hearing to determine whether 15 additional Brady material exists as to the analogues charged in his case, to obtain testimony 16 from FS witnesses about how analogue decisions were made at the time of his trial, and to 17 question prosecution witnesses about alleged Brady violations and dissenting opinions 18 within DEA. See CV Doc. 24 at 2-6. The Court might be inclined to grant this discovery 19 if procedural default prejudice and the Brady and Giglio tests were the only bars to be 20 cleared, but the § 2244(b) threshold would still loom. Such discovery, even if successful, 21 would only bolster Defendant’s cross-examination of Dr. DiBerardino. While stronger 22 cross might make for a closer trial, it would not render the jury unable to convict Defendant. 23 The jury would still have Dr. DiBerardino’s detailed chemistry explanations for why the 24 analogues in this case are structurally substantially similar to controlled substances, and 25 could choose to believe that testimony in fulfilling its function of deciding substantial 26 similarity. The Court could not find, by clear and convincing evidence, that a reasonable 27 factfinder would be unable to credit Dr. DiBerardino’s testimony and convict Defendant. 28 The case still would be dismissed. See 28 U.S.C. § 2244(b)(4). Because Defendant has 1 provided no reason to believe that he may, if facts are fully developed, be able to show he 2 is entitled to relief, Bracy, 520 U.S. at 909, the Court will adopt Judge Fine’s 3 recommendation and deny his motion for discovery and an evidentiary hearing. 4 Motion for Release. 5 Defendant filed a motion for release pursuant to Federal Rule of Appellate 6 Procedure 9 and 18 U.S.C. § 3143(b)(1). Judge Fine recommended that the motion be 7 denied because Defendant has shown neither special circumstances warranting release 8 pending habeas resolution nor a high probability of success on the merits of his claims. 9 See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001). The Court agrees with this 10 determination, but need not address it in any detail because Defendant does not object. See 11 Thomas, 474 U.S. at 149. 12 Certificate of Appealability. 13 Judge Fine recommends that the Court deny a certificate of appealability. 14 Defendant objects, but without explanation. CV Doc. 49 at 1. Given the high standard 15 established by § 2244(b), the Court concludes that no reasonable jurist could find that 16 Defendant is entitled to relief on his § 2255 motion. The Court therefore will accept Judge 17 Fine’s recommendation that the certificate of appealability be denied. 18 IT IS ORDERED: 19 1. Judge Fine’s R&R (CV Doc. 48) is accepted. 20 2. Defendant’s amended § 2255 motion (CV Doc. 21) is denied. 21 3. Defendant’s motion for release pending appeal (CV Doc. 10) is denied. 22 4. Defendant’s motion for discovery and request for evidentiary hearing 23 (CV Doc. 24) is denied. 24 5. A certificate of appealability is denied. 25 26 27 28 1 6. The Clerk is directed to terminate this action. 2 Dated this 12th day of April, 2021. 3 . 5 David G. Campbell 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24