Ronnie Fekrat v. United States , 595 F. App'x 669 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONNIE FEKRAT, No. 12-56515
Petitioner - Appellant, D.C. Nos. 2:11-cv-10006-PA
2:08-cr-01028-PA-2
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted November 19, 2014
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
Ronnie Fekrat (“Fekrat”) appeals the district court’s denial of his petition
under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 2253. We review
the district court’s decision de novo, United States v. Aguirre-Ganceda, 592 F.3d
1043, 1045 (9th Cir. 2010), and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Fekrat contends that the government permitted witness Johnson to testify
falsely in violation of Napue v. Illinois, 360 U.S. 264 (1959). Fekrat’s argument
relies mainly on a purported secret deal between the government and Johnson for a
six-month sentence. However, Fekrat has failed to show that any secret deal
existed. Fekrat’s interpretation of an email authored by a lawyer working for
Fekrat’s prior counsel regarding a plea deal for a six-month sentence is flatly
contradicted by sworn declarations from the attorneys–that is, the prosecutor and
Johnson’s attorney–who allegedly entered into the secret deal. Fekrat’s
interpretation of the email is also illogical. If such a deal existed, Fekrat’s counsel
is likely the last person that Johnson’s attorney would have told about the secret
agreement.
Further, Fekrat’s contention that Johnson lied about the written cooperation
plea agreement is unpersuasive. The defense extensively cross-examined Johnson
about his written plea agreement, during which Johnson admitted that he had a
“plea bargain” with the government. Moreover, the jury heard a stipulation about
the existence of the agreement and the possibility that the government might make
a substantial assistance motion to reduce Johnson’s sentence. Thus, any possible
confusion created by Johnson’s testimony is immaterial. See United States v.
Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003) (stating that, in order to establish a
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Napue error, a defendant must show, among other factors, “that the false testimony
was material.”).
We do not reach Fekrat’s uncertified issues. Cf. 9th Cir. R. 22-1(e).
AFFIRMED.
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