                    NOT RECOMMENDED FOR FULL–TEXT PUBLICATION
                               File Name: 14a0442n.06

                                           No. 12-2578
                                                                                       FILED
                                                                                 Jun 17, 2014
                           UNITED STATES COURTS OF APPEALS                   DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

DAVID A. GOWARD,                                          )
                                                          )
       Petitioner – Appellant,                            )
                                                          )
                                                                ON APPEAL FROM THE
v.                                                        )
                                                                UNITED STATES DISTRICT
                                                          )
                                                                COURT FOR THE EASTERN
UNITED STATES OF AMERICA,                                 )
                                                                DISTRICT OF MICHIGAN
                                                          )
       Respondent – Appellee.                             )
                                                          )



BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. David Goward appeals the district court’s denial

 of his 28 U.S.C. § 2255 motion to vacate his sentence, claiming ineffective assistance of

 counsel, prosecutorial misconduct, and other errors, including that the district court should have

 disqualified itself under 28 U.S.C. § 455. We AFFIRM.

                                                I.

       This court’s unpublished opinion on Goward’s direct appeal challenging the denial of his

motion to suppress sets forth the pertinent background:

       Goward’s convictions and sentences arise from an investigation conducted by the
       Bay Area Narcotics Enforcement Team (“BAYANET”). In the summer of 2002,
       BAYANET Officers Taylor and Mainprize went to the residence of Dan Novak
       based on information they received about possible marijuana trafficking. After
       being questioned by the officers, Novak agreed to be an informant on the large-
       scale marijuana trafficking operation run by Armondo Contreras and Goward.




                                                1
Novak informed the detectives that Contreras and Goward had been arranging for
truck loads of marijuana to be shipped from Texas to Michigan for some time.
On at least two prior occasions, Novak had allowed Contreras to deliver truck
loads of marijuana to his place of employment. Novak explained that the truck
would arrive early in the morning before the rest of the employees came to work
and the marijuana would be unloaded. On the first delivery, Contreras along with
the truck’s driver unloaded the marijuana. On the second delivery, Goward was
present to help unload the marijuana.

With Novak’s cooperation, the BAYANET Officers arranged a number of
controlled purchases of marijuana from Goward and Contreras. On July 10, 2002,
Officer Taylor and Novak purchased a pound of marijuana for $1,500. Later that
day, Goward called Novak asking him to steal approximately $500 of lumber
from his place of employment in exchange for marijuana. On July 12, 2002,
Novak and Officer Taylor delivered lumber to Goward for approximately four
ounces of marijuana.

After these controlled purchases, Novak told the officers that Contreras and
Goward were planning the delivery of another large truck load of marijuana to
Saginaw, Michigan from Texas. Specifically, Novak told Officer Taylor that the
marijuana was to be delivered to Novak’s place of business, where it would be
unloaded and hidden for several days until Goward and Contreras would be able
to go there and break it up into smaller units. The BAYANET Officers set up a
surveillance video. On August 14, 2002, police witnessed a truck arriving at
Novak’s place of employment. Shortly thereafter, Contreras arrived and began
unloading bricks of marijuana with the truck driver, co-defendant Chon Hinojosa
(“Hinojosa”). While Contreras and Hinojosa were unloading the marijuana, the
police arrested them. Goward, who is a part-time postal employee, was arrested
later that morning while delivering mail on his route.

Soon after the seizure of the marijuana and the arrest of Contreras and Goward,
the officers went to the Saginaw County Prosecutor’s office to obtain search
warrants for the relevant locations. One of these locations was Goward’s
residence, located at 2225 Birch Run Road. Officer Taylor submitted the affidavit
for the warrant, which an assistant prosecutor drafted. Officer Taylor took the
warrant to a state district judge, who authorized the search. The officers
conducted a search of Goward’s residence later that day. During the search,
authorities seized 13 pounds of marijuana, $60,000 in cash, a dozen firearms, and
over 400 pieces of undelivered mail.



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United States v. Goward, 188 F. App’x 355, 356–57 (6th Cir. 2006).

       Goward was charged in a multi-count indictment and convicted of conspiracy to

distribute 100 to 1000 kilograms of marijuana, distribution of marijuana (2 counts), unlawful

possession of firearms, and theft of mail by a post-office employee. He was sentenced to

121 months in prison. His direct appeal challenged the denial of his motion to suppress the fruits

of search warrants, and also raised a sentencing issue. This court affirmed his conviction, but

remanded for resentencing under United States v. Booker, 543 U.S. 220 (2005). On remand,

Goward’s sentence was reduced to 110 months. It was further reduced to 102 months after

Goward’s second appeal, in which he successfully challenged the calculation of his sentencing

guidelines range as erroneously including stale convictions. United States v. Goward, 315 F.

App’x 544, 551-52 (6th Cir. 2009).

       Goward filed the instant § 2255 motion in December 2010; the district court denied the

motion and declined to grant a certificate of appealability. After an appeal was docketed,

Goward retained counsel who filed an application for a certificate of appealability, which this

court granted.

                                                II.

       We review a denial of a § 2255 motion de novo while upholding the factual findings of

the district court unless they are clearly erroneous. Moss v. United States, 323 F.3d 445, 454 (6th

Cir. 2003) (quoting Mickens v. Taylor, 535 U.S. 162 (2002)).

                                                A.

       Goward first asserts that the district judge presiding over his § 2255 motion could not

fairly assess his claims of prosecutorial misconduct because the Assistant U.S. Attorney who

prosecuted Goward is now a United States Magistrate Judge who works with the district judge,


                                                3
and the district judge would thus have to rule on the credibility of a colleague. Although Goward

asserts that the magistrate judge worked particularly closely with this district judge, he goes

further and asserts that none of the district judges who work with the magistrate judge should

decide a case in which the magistrate judge’s conduct as a prosecutor is challenged.

       A motion to disqualify must first be presented to the judge whose impartiality is

questioned. See United States. v. Balistrieri, 779 F.2d 1191, 1202–03 (7th Cir. 1985). A judge

must recuse himself under 28 U.S.C. § 455(a) “if a reasonable, objective person, knowing all of

the circumstances, would have questioned the judge’s impartiality.” United States v. Sammons,

918 F.2d 592, 599 (6th Cir. 1990). Goward acknowledges that he did not move for or otherwise

seek the district judge’s disqualification, but does not explain why he failed to do so. He

attempts to sidestep the issue by asserting that the magistrate and district judges must have

recognized the conflict, that the district judge “chose to conceal the information which would

have led to a disqualification motion,” and that Goward was proceeding pro se. We are not

convinced. The information on which Goward bases his claim for disqualification was a matter

of public record. The issue is waived and no plain error has been shown in the failure to recuse

sua sponte. Further, the allegation of bias has no factual support, especially where Goward’s

claims based on prosecutorial misconduct were procedurally defaulted and were not considered

by the district court on the merits in any event.

                                                    B.

       Goward next argues that the district court erred in refusing to consider many of his claims

on the basis that they were procedurally defaulted.1 The district court correctly determined that



1
 Goward’s 32-page motion is not entirely clear, but appears to assert that there was insufficient
evidence of intent and quantity regarding the marijuana-distribution charges; that there was no
conspiracy; that his sentence amounted to cruel and unusual punishment; that his conviction was
                                                    4
Goward failed to raise these claims on direct appeal, and that it could consider these claims only

upon a showing that either (1) Goward had good cause for failing to raise the issues and would

suffer prejudice if unable to proceed, or (2) Goward is actually innocent. Bousley v. United

States, 523 U.S. 614, 621–22 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 485, 496

(1986)). The district court observed that Goward alleged neither. Goward v. United States, No.

02-20043, 2012 WL 5383110, at *3 (E.D. Mich. Nov. 1, 2012) (citing Regalado v. United States,

334 F.3d 520, 528 (6th Cir. 2003)). We agree.

       Goward takes issue with the district court’s application of Bousley and reliance on cases

finding procedural default where the conviction under attack was based on a guilty plea rather

than a trial. But Goward does not explain the basis for this distinction or cite a case that holds

that Bousley does not apply where the petitioner’s conviction was secured through trial. Further,

Goward’s reliance on United States v. Frady, 456 U.S. 152 (1982), also cited by the district

court, is misplaced. Goward reads Frady as supporting his claim that “the entrapment issues

should have been heard because if true, then defendant did not commit a crime,” and that the

“withholding of evidence from Defendant” constitutes cause for any procedural default. Goward

also asserts that any failure to raise a meritorious issue on appeal must have resulted from

ineffective assistance of counsel, “another basis for ‘cause.’”

       The district court correctly concluded that these issues were not raised on direct appeal.

Additionally, notwithstanding Goward’s arguments, he has failed to show good cause for his


unfair because it was obtained by entrapment; that the U.S. Attorney withheld exculpatory
information in the form of police reports acknowledging that prints were lifted off the controlled
substance packaging that were not his; that the government used or made false statements to
convict him; and that there was entrapment by estoppel. Goward’s motion implies prosecutorial
misconduct, although it does not specifically state so. None of these claims was raised on direct
appeal. Goward claims that his counsel’s failure to raise these issues is further evidence of
ineffective of assistance of counsel. His habeas petition also impermissibly includes a renewed
request to suppress evidence seized by the government.
                                                 5
failure to raise these issues on appeal or that he is actually innocent. Further, challenges to the

weight or credibility of the evidence do not establish innocence, and claims of insufficient

evidence short of establishing actual innocence will not be reviewed in a § 2255 proceeding.

Zack v. United States, No. 93-2493, 28 F.3d 1215, at *3 (6th Cir. 1994) (table).

                                                 C.

       Goward’s claims of ineffective assistance of counsel are properly raised in this § 2255

motion. United States v. Graham, 484 F.3d 413, 421–22 (6th Cir. 2007). To prevail on a motion

under § 2255, a defendant must prove “(1) an error of constitutional magnitude; (2) a sentence

imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to

render the entire proceeding invalid.” McPhearson v. United States, 675 F.3d 553, 559 (6th Cir.

2012) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (2003)). To show a violation of

the Sixth Amendment right to effective assistance of counsel, a petitioner must establish that

counsel’s performance was deficient and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s deficient performance is

prejudicial if “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687. The petitioner must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694. Unless the petitioner demonstrates both deficient performance and

prejudice, “it cannot be said that the conviction [or sentence] . . . resulted from a breakdown in

the adversary process that renders the result unreliable.” Id. at 687.




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                                                1.

       Goward argues that his trial counsel was ineffective in failing to object to and counter

false testimony regarding mail seized during the search of his home; in failing to impeach a

witness concerning how money was paid, by cash or check; by failing to establish that the DEA

agent regarded a prosecution witness as unreliable; by failing to attack the testimony of a witness

who had been represented by defense counsel; by failing to contact Contreras to testify for

Goward; by failing to assert an entrapment defense and argue entrapment by estoppel; by failing

to object to the improper actions of the prosecutor/magistrate judge; and by failing to be loyal to

Goward.

       We have reviewed Goward’s arguments, the record, and the decision of the district court,

and conclude that Goward’s claims are either unsupported by the record, or that Goward has

failed to meet the Stickland standard.       Although Goward asserts that only “through an

evidentiary hearing can he marshal the facts necessary to support his claims,” this court has

rejected that logic as “circular,” noting that it would require giving every habeas petitioner an

evidentiary hearing on every issue. Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006)

(internal citations omitted). Goward has not made an adequate showing of the evidence he

proposes to present at such a hearing.

                                                2.

       Goward also asserts that he was prejudiced by trial counsel’s failure to obtain the records

of his 1990 federal conviction, and argues that those records would show that the sentencing

court told Goward he was barred from possessing a firearm only for five years. However, the

district court correctly held that Goward would not have a valid defense even if the district court

made such a statement. See United States v. Hunter, 4 F. App’x 295, 302 (6th Cir. 2001)); see



                                                7
also United States v. Wood, 365 F. App’x 670, 671 (6th Cir. 2010) (rejecting ineffective

assistance of counsel claim based on failure to raise defendant’s good-faith belief that his

predicate conviction had been expunged). For an affirmative defense of entrapment by estoppel,

the defendant must establish that he actually relied on the advice of an executive branch official

who actively misled him, and that his reliance was reasonable. United States v. Theunick,

651 F.3d 578, 589–90 (6th Cir. 2011). Obtaining the transcripts of Goward’s 1990 conviction

would not have enabled him to establish a viable defense.

                                                 3.

       Finally, Goward claims that his trial attorney had a conflict of interest because he had

previously represented Michael Joseph, a witness for the government, and argues that an attorney

has an obligation to reveal such past representation to the defendant in advance of trial so that the

defendant can consider seeking disqualification of the attorney.

       If a defendant shows that his lawyer was “actively represent[ing] conflicting interests”

and that “an actual conflict of interest adversely affected” the lawyer’s performance, prejudice is

presumed, at least when the conflicting representation is concurrent rather than successive.

Jalowiec v. Bradshaw, 657 F.3d 293, 314 (6th Cir. 2011) (quoting Cuyler v. Sullivan, 446 U.S.

335, 350 (1980)).

       Michael Joseph, a witness at Goward’s trial, was represented by Goward’s defense

counsel ten years before Goward’s trial, when Johnson pleaded guilty of possession of an

unregistered, sawed-off shotgun. United States v. Joseph, No. 92-2101, 999 F.2d 541 (6th Cir.

1993) (table).   Goward’s counsel was not representing Joseph while representing Goward.

Counsel’s representation was thus serial, not concurrent. Because Goward has not identified any

confidential information his counsel learned from Joseph that hampered cross-examination or



                                                 8
otherwise shown that his counsel’s performance was adversely affected, Goward has not shown

an actual conflict that influenced counsel’s performance.

       Because Goward failed to show cause and prejudice or ineffective assistance of counsel,

we AFFIRM.




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