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United States v. Ontiveros

February 2, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
ANTELMO ONTIVEROS, MOVANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Movant is a federal prisoner proceeding pro se with a motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his 2004 conviction for conspiracy to possess methamphetamine with intent to distribute and with possessing methamphetamine with intent to distribute. 21 U.S.C. §§ 841(a)(1), 846. The motion raises three claims of ineffective assistance of counsel and one claim of ineffective assistance of appellate counsel. For the following reasons, movant's motion should be denied.

II. Factual Background

The court has independently reviewed the record and finds respondent's summary of the offense conduct to be accurate. Accordingly, it is adopted below.

On September 3, 2002, a confidential informant for the Sacramento County Sheriff's Department finalized arrangements with movant for movant to sell six pounds of methamphetamine, for $4,000 per pound, to the informant's "partner," actually an undercover detective, Sal Robles. RT at 113, 114, 256. Movant was to make $500 per pound on the deal. RT at 257. Movant told the informant that the supplier would be coming from out of the area to deliver the methamphetamine. RT at 119, 257.

Detective Robles directed the informant, who was with movant at the time he informed Detective Robles of the arrangements that had been made, to go with movant to a specific location to meet him. RT at 116. Detective Robles then arranged for police surveillance of that location. RT at 116. As surveillance units watched, the informant and movant met with Mr. Lopez-Cuevas who was driving a purplish Honda. RT at 119, 127, 258. They met at 24th and Florin. RT at 257. Movant introduced Mr. Lopez-Cuevas as his cousin to the informant, and indicated that Mr. Lopez-Cuevas had brought the methamphetamine. RT at 267. Mr. LopezCuevas asked movant if "everything" was ready, who then asked the confidential informant if "everything" was ready. RT at 260.*fn1 The confidential informant said he was ready. RT at 260.

Detective Robles then called the confidential informant and told him to tell movant and Mr. Lopez-Cuevas that they should drive to 21st and Florin to meet with him and consummate the transaction. RT at 128, 261.

Eventually, both cars were stopped. RT at 130, 131. As the police pulled over the informant and movant, movant said that they were "screwed." RT at 261. A search of the Honda revealed six pounds of methamphetamine. RT at 168, 172, 185, 187.

III. Discussion

A. Legal Standard

A claim of ineffective assistance of appellate counsel utilizes the same Strickland standard that is applied to trial counsel. Smith v. Robbins, 528 U.S. 259, 287, 120 S.Ct. 746, 765 (2000).

The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id., 104 S.Ct. at 2066. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S.Ct. at 2065).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id., 104 S.Ct. at 2068.

In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S.Ct. 1495, 1512-13 (2000), (citing Lockhart v. Fretwell, 113 S.Ct. 838, 506 U.S. 364 (1993)).

B. Claim 1

Movant argues that trial counsel was ineffective for failing to move for acquittal pursuant to Fed. R. Crim. P. 29 on grounds that there was insufficient evidence to support the conspiracy to possess methamphetamine with intent to distribute methamphetamine charges.*fn2 In particular, movant argues that the evidence demonstrated no more than a buyer/seller relationship between himself and his cousin. Movant was charged with conspiring with his cousin and other persons unknown to the grand jury. See Indictment filed September 19, 2002. Movant argues that appellate counsel was ineffective for failing to raise this issue on appeal.

Fed. R. Crim. P. 29 provides that after the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The standard applied when evaluating a Rule 29 motion is whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir.2001) (emphasis in original and citations and internal quotations omitted).

"The elements of a drug conspiracy under the statute at issue are (1) an agreement to accomplish an illegal objective; and (2) the intent to commit the underlying offense. Id. at 1095.

"That a defendant sold drugs to other individuals does not prove the existence of a conspiracy." U.S. v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994). "Rather, conspiracy requires proof of 'an agreement to commit a crime other than the crime that consists of the sale itself.'"

Id., quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993). "Were the rule otherwise, every narcotics sale would constitute a conspiracy." Id. However, certain conduct may be sufficient to indicate the existence of more than a buyer-seller relationship including arranging contacts and meetings and transactions in large quantities with regularity. U.S v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998). Indeed, the fact that movant knew the scope of what was planned in terms of the drug transaction and would benefit from it is all that is required to find him a part of the conspiracy. Filling in the name of movant into the quote which follows proves this point:" There is also sufficient evidence to connect [Ontiveros] to the overall conspiracy. The government need not show an explicit agreement between [Ontiveros] and the others. [citation omitted] 'It is sufficient to show that [Ontiveros] knew or had reason ...


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